text:
    Wells versus Peck.
    One partner cannot be a witness for his copartner in a suit against the latter on an alleged partnership liability, though released by the copartner from liability to him.
    Error, to the Common Pleas of Susquehanna county.

    This was an action of debt by Asher Peck v. J. M. Chittenden and J. II. Wells, administrators of the estate of Charles II. Wells, deceased, who had been a partner with Sidney B. Wells under the name of Wells & Co. It was founded on an instrument of writing, in which it was stated that Wells & Co. had borrowed of Asher Peck $85, to be paid on demand with interest. It was signed Wells & Co.
    On the part of the defendants, said Sidney B. Wells was offered as a witness, a release to him having been executed by the defendants. lie was objected to as incompetent on account of interest, and was rejected.
    The rejection was assigned for error.

      Bentley and Fitch, for plaintiffs in error.
    It was said that, not being a party to the record, and the record not being evidence for or against him in any suit against him for the same claim, he was a competent witness: 9 Watts 386; 6 Barr 322. It was further said that, by the death of a party, the right of action became several: Act of 11th April, 1848.

      Turrell, for defendant in error.
    The suit being founded on a partnership liability, S. B. Wells was incompetent; because, if the plaintiff had been defeated, the judgment would be a bar to recoi very against S. B. Wells, and tbe partnership fund would not be diminished this proceeding.
    It was further said that the position of S. B. Wells was analogous to that of a partner not served with process : Wolf v. Fink, 1 Barr 440; also cited 2 Penna. Rep. 138; 2 Watts 351; 1 Whar. 398; 1 Rey. & M. 29; 21 Eng. Com. Law 374; 7 Barr 370. Though at this time the claim is barred by the statute as to S. B. Wells, it was not barred at the commencement of the suit; and, if recovery had taken place, it would have been payable out of the partnership funds.
   The opinion of the Court was delivered by

Knox, J.

This Court has repeatedly ruled that one partner cannot, by assigning his interest in a partnership claim, become a witness to establish the validity of the claim in behalf of his co-partners. The same principle will exclude a joint debtor, growing out of a partnership debt, from testifying in favor of his copartner, although he may not be joined in the action, and may have been released by the partner against whom the action is brought. Nominally, the interest is divested by the release, but it is equally so by the assignment. The rule of policy is as strong in the one case as in the other. Without the release, the partner would be clearly incompetent, as he would be compelled to make contribution. So a joint creditor without an assignment would be incompetent, as he would be entitled to participate in the fund. The rules of evidence should be uniform, and be applied as well for as against parties similarly situated. The assignment of the one and the release of the other stand upon equal footing; or, in other words, they give no footing for the purpose of testimony. The witness was properly excluded.

Judgment affirmed.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Breinig versus Meitzler.
    1. A book into which it appeared entries were transcribed from time to timo as the parties had leisure from a counter-book or blotter, was not a book of original entries, though the plaintiff on his voir dire had stated that it was such.
    2. In an action against a husband for goods furnished to his wife who was living separately from him, it was not necessary, before proving the sale and delivery, to show his liability for her contracts.
    3. In determining the character or extent of the clothing which may be furnished to a wife living separately from her husband, the pecuniary circumstances of the husband and the social position of himself and family ma.y be shown. A conveyance to him of a valuable estate is legal evidence.
    4. Threats of personal violence are sufficient cause for a wife to separate from her husband. If the language of the husband do not expressly threaten violence, but is capable of being so understood, the jury are to judge of the meaning of the husband in the use of it.
    5. A defendant cannot introduce his defence by cross-examining a witness of the plaintiff to matters not before testified to in the case.
    Error, to the Common Pleas of Lehigh county.

    This was an appeal from the judgment of a justice of the peace, in an action by George Meitzler v. George Breinig, brought to recover for clothing and materials for such, and for other articles sold to the defendant’s wife, who, at the time, was living separately from him. It was alleged on the one part, that she had left him with sufficient cause ; on his part, that she had not such cause. She left him in June, 1848, and the property was furnished her within some months afterwards.
    The plaintiff below offered in evidence his book account, containing the charges of the goods sold. The plaintiff was sworn on his voir dire, and stated that it was his book of original entries, but that some of the entries referred to he did not make. He said the goods were delivered to the wife of the defendant. The amount seemed to be about §26.
    A person, who was a clerk of the plaintiff, when the goods were furnished, was called, and he testified that he made the first entry in the book in question, and also some other of the entries. He subsequently said that he thought he entered the items first in a counter-book or blotter, which he supposed the plaintiff still had. That it was the practice to enter the sales first in the counter-book : that he entered them in the day-book from the counter-book. He further said that Meitzler (the plaintiff) made entries in that counter-book also. We copied them into the day-book when we had leisure. The counter-book consisted of a few sheets of paper. He believed they were preserved. The account •was read. The admission of the book was excepted to. The goods were delivered in August and September, 1848. The defendant’s counsel proposed to ask the witness whether he knew at the time that Mrs. Breinig was separated from her husband ? The question objected to, and was overruled.
    Evidence was given on the part of the defendant, that his wife had left him in June, 1848.
    On part of the plaintiff, testimony was given by several witnesses, with the view of showing threats of violence, made by the husband towards his wife. The language was variously stated by the witnesses. One of them testified that the defendant said, “ a thunder-storm would have to arise and strike one of them. There must be an alteration between them.” Another stated that he said, that “ in six weeks thunder and lightning should arise and strike the one that was in fault. Another testified that he said, he wished lightning would strike him or her.”
    Evidence was given as to the value of the farm of the defendant. There was also offered the record of a deed to him in 1846, for 154 acres and 34 perches of land, for the consideration of $16,000. The record was objected to, but was admitted.
    On part of the defendant was read a notice, in a newspaper, not to trust his wife on his account. It was published in 1848— the precise date not stated.
    Jones, President Judge, charged the jury, inter alia, that cruelty which will under the Act of Assembly justify a divorce may consist in threats of bodily harm, as well as in bodily harm itself. He submitted to the jury whether any such threats were made by the defendant to his wife — that if his language contained such threats as were calculated to produce fear of bodily injury, she was not bound to live with him. Further, that if she were justified in leaving him, the jury should inquire whether the goods were furnished to her, their value, and whether they were necessary, taking into view, so far as they knew from the evidence, her supply of clpthing, and her condition in life.
    Verdict was rendered for the amount of the claim.
    It was assigned for error, — 1. That the Court erred in admitting in evidence the plaintiff’s book, it not being a book of original entries; and if it were, it was not admissible in order to charge the defendant with goods purchased by a person claiming to be his wife, without his knowledge or consent, without proof of the marriage ; or if married, without proof that he drove her away from him under circumstances that would make him liable for necessaries procured by her. 2. In not permitting the question to he asked of the clerk, who sold the goods to Mrs. Breinig, whether he' did not know, when he sold the goods to her, that she was separated from her husband. 3. In admitting testimony as to disputes between the defendant and his wife, and what the witnesses testified in relation to his wishing a thunder-storm might strike the one in fault, &c., none of which, it was alleged, constituted sufficient cause for divorce. 4. In admitting the deed. — The fifth related to the charge as referred to.

      Stiles and Porter, for plaintiff in error.
    The blotter was not produced. The book received was not one of original entries: 1 Browne 147; 6 Watts 432; 2 Id. 451; 1 Rawle 435; 2 Miles 268.
    2d. If a married woman be living apart from her husband, it is the duty of a tradesman, before trusting her, to inquire under what circumstances the separation exists. If he trusts a married woman living separately, he does so at his own risk: 8 Carr. & Payne 373; Shelford on Marriage 644, 23 Law Lib.; 1 M. & M. 101.
    5th. To justify a wife in leaving her husband there should be reasonable apprehension of bodily hurt: 1 Hagg. 37-39-40. There must be something that renders cohabitation unsafe, or is likely to be attended with injury to the person or health of the party: 2 Hagg. 154; 2 Phill. 111; Id. 132; Shelford 426-7. The treatment must be of such a character as will justify a divorce: Shelford 437. If she leave her husband without sufficient cause, the husband is not liable for her contracts: 11 Johns. 281; 2 Lord Ray. 1006; 7 Ser. & R. 250; 2 Ashmead 143; 7 W. & Ser. 83; 2 Kent 146. It was contended that in the language of the husband in this ease there was no menace of personal violence on his part towards her.

      Bridges and Reeder, for defendant in error.
    Where entries of work are made by a journeyman on a slate, and some days after-wards transferred to a book, the book, supported by the oath of the journeyman, was admitted: 2 Watts 347; also cited 9 Ser. & R. 285, as to a book in which entries were made from memoranda: 4 Rawle 410; 6 Wh. 189; 16 Ser. & R. 133.
    It was not material whether the person giving credit to the wife knew of the separation or not: 7 Ser. & R. 250; 11 Johns. 281.
   The opinion of the Court was delivered by

Black, C. J.

This was assumpsit for goods sold and delivered to the wife of the defendant below. She wras living apart from her husband. To justify a recovery it was necessary for the plaintiff to show, 1. That the goods were delivered; 2. That they were necessaries; and 3. That the wife had separated from her husband for good cause. These facts were all found by the jury; but the plaintiff in error alleges that they were found upon illegal evidence and in consequence of wrong instructions.

I. To establish the sale and delivery, the plaintiff’s shop-book was produced, and by himself sworn to as a book of original entries. But some of the charges were made by a clerk, and when he was called he testified that they were first entered in a blotter, of which the book offered on the trial was but a copy. When this fact came out, the book should have been rejected. Mere memoranda made on a slate or on loose slips of paper, are not entries, and a day-book made from such memoranda is the original. But a counter-book or blotter, is a permanent record of the business done in the shop. In the present instance it was kept and preserved, and appears to be still in the possession of the plaintiff. There is no authoritative case on record which goes the length of deciding that such a book can'be superseded as evidence by another which is transcribed from it. The plaintiff, it is true, swore that the entries in the day-book were original. This is often done by parties and witnesses who do not quite understand the meaning of their words, and the facts subsequently elicited show them to be mistaken. When a person authenticates his shop-book by swear-mg in general terms that it is original, and it afterwards appears, either from his own testimony or that of another witness called for the same purpose, that it is a mere transcript, it becomes inadmissible, because a witness’s conclusion, which may be the result of a mistaken judgment, has no force against a contrary statement of particular facts by himself or by another witness equally credible. Taking all the evidence concerning this book together, it was not, in our opinion, sufficient to establish it as a book of original entries. If it had been duly proved, the fact that the purchases were not made by the husband himself in his own person, but by his wife, for whose contracts he was liable, would not be a reason for rejecting it. Nor was it necessary to show the defendant’s liability for his wife’s contracts before the book was read. The sale of the goods to the wife was one fact in the cause of which the book was evidence: the obligation of the defendant to supply her with necessaries or pay for them if supplied by the plaintiff, was another fact to be established by other proof. As two things cannot be done at the same time, one must necessarily precede the other. It was proper to begin with the sale, though if a different order had been followed we could not reverse for that reason.

II. The goods purchased consisted almost entirely of clothing, and do not seem to he at all extravagant. But what would be extravagant in one man’s wife, might be very economical in another. The best way to determine what articles of dress a discarded wife may supply herself with at the expense of her husband, is to ascertain what a prudent woman would expect and a good husband be willing to furnish, if the parties were living harmoniously together. This would depend on a variety of circumstances, and on the value of the husband’s estate among others. The short as well as the fair way of dealing with such a question is to call a witness who knows the circumstances, style of living, and social position of the husband and his family. In the present case nothing was offered but a deed, which showed the defendant to be the owner of land, conveyed to him for the consideration of $16,000. Though this was far from being satisfactory, we cannot say that it was altogether irrelevant. It was legal evidence, but standing alone it was not of much value.

III. We take it for granted, as the counsel and Court below did, that this is not a case in which the wife was turned away from her husband’s house, but that her departure from his roof was an act of her own. Was the cause of her leaving such that he is bound by her contracts for necessaries ? If she did not go by his command, it must be proved that she could not stay with safety. Mere want of sympathy, disagreeable manners, ebullitions of ill temper, habitual disregard of her feelings, refusal to protect her from the insults of others — all these, though nearly as brutal as blows, are not to be taken as just cause for separation. If they were, this would be a clear case. But personal violence, whether actually inflicted or only threatened, is sufficient. To that effect the judge instructed the jury, and left it to them to say whether there was a threat or not. No language was proved which clearly or plainly implied an intention to do her bodily injury. But the defendant used words capable of being so understood. A witness testified that in a dispute at the breakfast table, which he provoked by insisting that she ought to eat a particular piece of bread, he said a thunder-storm would rise and strike one of them; and some hours afterwards, when he was not excited, he said there must be an alteration — a thunder-storm would have to rise and strike one of them. According to another witness he said that in six weeks thunder and lightning should rise and strike the one who was in fault. This is obscure certainly. It may have been all meaningless, and, therefore, innocent. But the jury were the only judges competent to give it a construction. The Court could not have decided as matter of law that the words meant nothing, or that they did not mean what.the plaintiff alleged. It was right, therefore, to admit the evidence, and equally right to let the jury give it the weight to which they thought it entitled.

There is another error assigned, which is not touched by anything yet said. The plaintiff’s clerk having been called to prove-the book, he was asked, on cross-examination, if he did not know that the defendant’s wife was separated from her husband; and the Court refused to let the question be answered. Neither the object of the question nor the ground of objection is set out on the record. We conjecture that it was overruled because it would have been a premature and irregular introduction of the defence. In this aspect it was properly dealt with. At a subsequent stage of .the trial, the fact of the separation was proved without objection, and its notoriety was shown by a newspaper advertisement. If more was desired (though more could scarcely be necessary), we do not doubt that the Court would have permitted the clerk to bo called back at the proper time, and a knowledge of the separation brought directly home to the plaintiff. But no such offer was made, either because the fact was not considered important, or else because it was known that the clerk’s testimony would not prove it.

Judgment reversed and venire facias de novo awarded.


author: Lowrie, J.

text:
    Bachman versus Chrisman
    1. The interest of a widow in the lands of her deceased husband who died intestate was a freehold estate, and on her second marriage before the Act of 1848 her second husband took the same interest in it which he would have in any other life estate belonging to her; his interest was not divested by the Act of 1848, and was liable to sale for his debts.
    2. After judgment against the second husband, partition was had of the first husband’s estate, and after levy upon the interest of the second husband in the estate of the decedent, the said estate was sold by the administrators, under proceedings in partition; and some weeks afterwards the interest of the second husband was sold by the sheriff. Held, that the partition of the first husband’s estate made after the judgment against the second husband and levy under it did not impair the effect of such judgment, but the share assigned to the wife in the partition passed to the purchaser of it at the sheriff’s sale.

    Error to the Common Pleas of Chester county.

    This was an amicable action entered into between George Chris-man, as plaintiff, and Lewis- L. Bachman, as defendant. The following facts were agreed upon : — •
    Joseph Carey died in 1842, intestate, leaving a widow, Lydia, and several children. After his death, part of his real estate was sold under order of Orphans’ Court for payment of debts, leaving three pieces of property unsold. In 1845, his widow intermarried with Levi Ganger. Whilst he was residing on a part of the property, George Chrisman, the plaintiff, on the 28th of September, 1848, recovered judgment against him on an award of arbitrators for $144.16. On October 10, 1849, an alias fi. fa. was issued on the judgment, and levy was made on the interest of Levi Ganger in the real estate of Carey. Such interest was condemned, and was sold by ven. exp. to the plaintiff, on the 25th December, 1849. Deed was executed on 30th January next following.
    On the 17th September, 1849, the widow' and heirs petitioned the Orphans’ Court for an order of partition or valuation; and partition was made into three parts, and appraisement of each made. The parties in interest refusing to take, turn portions of the property were sold on the 28th November, 1849, to Lewis L. Bachman, the defendant, who afterwards made the first payment on each property, and gave bonds and mortgage to the administrators for the residue of the purchase-money. The sale was confirmed on 28th January, 1850.
    Before the execution and delivery of the conveyance to the defendant, actual notice was given to him of the sheriff’s sale to the plaintiff of the right and interest of Levi Ganger.
    The question was, whether the plaintiff was entitled, by virtue of his purchase at sheriff’s sale, to the annual interest of one-third of the purchase-money of the real estate which had accrued since the 1st of April, 1850. If so entitled, then judgment to be rendered for him for $>86.70, being for two years’ interest.
    The decree of the Orphans’ Court was in the words of the Act of Assembly, ordering the interest of the widow’s share to be paid annually to her, &c., and at her death the principal sum to be paid to the heirs of Carey.
    October 31, 1853, the Court directed judgment for the plaintiff.
    Such judgment was assigned for error.

      Smith and Darlington, for plaintiff in error.

      Lewis, for defendant in error.
    Whether the interest of the widow was considered as a part carved out of the fee, or as a rent-charge issuing thereout, still it is real estate: 12 Ser. & R. 9, Shaupe v. Shaupe; 3 W. & Ser. 459, Miller v. Leidig; 2 Miles 278. In either ease it is liable to levy and sale for the debts of the wife: 12 Ser. & R. 9; 3 Barr 608 Id. 202; 2 Miles 278. By the marriage, Levi Ganger became entitled to the possession of his wife’s real estate during the coverture: 3 Barr 65; 17 Ser. & R. 363. His interest was liable to be bound by judgments against him, and to levy and sale: 3 Barr 60-69; 3 Bin. 9; 1 Yeates 429; 2 Id. 25; 1 Rawle 162; 8 Barr 202; 2 Miles 278. A judgment against the husband of an heir at law is a lien against his life estate: 1 Watts 309; 10 Barr 398; Id. 505. The interest of the husband could not constitutionally be divested by the Act of 1848: 6 Harris 506, Peck v. Ward; 10 Barr 398; 1 Harris 480. The interest of the husband was not divested before the sheriff’s sale either by the Act of 1848 or by the proceedings in partition: 2 Watts 359; 12 Ser. & R. 9.
   The opinion of the Court was delivered by

Lowrie, J.

The widow’s interest in the real estate of her deceased husband in our state does not come within the ordinary definition of dower, because that refers to the common law provision for widows. But it is a statutory substitute for that provision, and may very well be called statutory dower. Like dower at common law, it is a defined interest in her late husband’s lands, arising at his death, and is a freehold estate. If she marries again, her new husband acquires the same interest in it as he would in any other life estate of hers, and the interest thus acquired by him would be liable for his debts. If the marriage took place before the Act of 1848, the estate of the husband became vested by the marriage, and that Act was not intended to divest it. Morality and the constitution forbid such an intention.

Such is the present case, and the estate which this husband acquired by the marriage over his wife’s statutory dower passed by tbe sheriff’s sale to the purchaser. The proceedings in partition, which took place after the judgment on which the sale was made, did not affect the right, except by defining it. They fixed the share to which the widow, or her new husband through her, was entitled; and that share passes to the purchaser as the legal assignee of the widow during the husband’s lifetime, if the estate so long continues. The lien of the judgment-creditor attached to it as real estate, and as such it was seized in execution before any decree in the partition case. The subsequent decree, even if it did, as between the parties to' it, change the character of the estate, could not affect the process which the judgment-creditor had commenced.

Judgment affirmed.


text:
    Little versus Walton.
    1. By the Act of 24th February, 1834, an administrator de bonis non had the right to receive from the former administrator the balance in his hands on the settlement of his account, though the balance was ascertained before the passage of the said Act.
    2. Though the payment to the administrator de bonis non of the said balance was made before the passage of the Act of 1834, yet after its passage action was not maintainable against the personal representatives of the first-administrator by the widow or children of the intestate for their distributive portions of the same: whatever right of action they had was against the administrator de bonis non.

    Error to the Common Pleas of Bucks county.

    This was an action of assumpsit by Rachel Little (who was widow of Thomas Little, deceased) v. Jacob Walton, administrator of the estate of Samuel Hartley, deceased, who was administrator of the estate of Thomas Little, deceased.
    Letters of administration were granted to Samuel Hartley upon the estate of Thomas Little, deceased, on the 15th of May, 1832. He died shortly after, and letters of administration on his estate were granted to Cyrus Hartley and Jacob Walton. These administrators filed an account of the administration of Thomas Hartley upon the estate of Thomas Little, showing a balance of $294.44, which was confirmed by the Orphans’ Court, April 23d, 1833.
    Letters of administration d. b. n. on the estate of Thomas Little were granted to Joseph Hough on the 9th of Sept., 1833 ; and on the 31st of December, 1833, the administrators of Hartley paid the above balance of $294.44, to Hough, the administrator d. b. n. Hough became insolvent, and he was discharged from the administration, January 23d, 1839, and letters granted to Samuel A. Smith, one of his sureties in the administration bond. Smith filed a settlement as administrator of Little, and charged himself with the proceeds of the sale of real estate, paid the debts of the deceased, and distributed the balance among Little’s heirs; but he did not charge himself with the amount of the personal estate received by Hough from Hartley’s administrators.
    The present suit was instituted the 14th day of May, 1850, by the widow of Little, to recover the one-third of the balance of the personal estate of her husband.
    On the trial of the case, the defendant’s counsel offered in evidence the receipt before mentioned from Hough, the administrator d. b. n., to Hartley’s administrators, dated the 31st of December, 1833, and also the settlement of Hough, showing the receipt of said balance by him.
    This was objected to by plaintiff’s counsel on the ground that the administrators d. b. n., at that time, and before the Act of 24th of February, 1834, which went into operation on the 31st of October of that year, had no right to receive the money under the law as it then existed, and that it was therefore a mispayment.
    The Court admitted the evidence, and exception was taken.
    Smyser, President Judge, charged that the Act of 24th February, 1834, gave to the administrator de bonis non the right to recover a balance in the hands of the former administrator; and that the administrator de bonis non was bound to distribute it amongst the creditors or heirs — that in this case the administrator de bonis non, having received the fund, and paid it over to his successor, the latter only, if any one, was liable to a suit by the plaintiff.
    He observed that this view of the law rendered it unnecessary to decide upon the plea of the statute of limitations, and, upon the objection, that the plaintiff did not make a legal demand for her share of the fund till after seven years from the death of her husband.
    February 10th, 1852, verdict for defendant.
    It was assigned for error that the court erred, — 1. In admitting in evidence the receipt from Hough, the administrator d. b. n., to the administrators of Hartley’s estate. 2. In charging that the plaintiff was not entitled to recover.

      Du Bois, for plaintiff in error.
    It was contended that the administrator d. b. n. having been appointed before the Act of 1834, he had no right to receive the balance in the hands of the former administrator. At the time of his receiving letters of administration, he gave bond; and it was contended that he was then entitled to receive only the unadministered part of the assets, and that his sureties could not be charged beyond the letter of the bond: 11 Ser. & R. 441, Reed v. Commonwealth; 3 Rawle 376.

      Lear, for defendants in error.
    Though the payment in December, 1833, to the administrator d. b. n. were a mispayment; yet after the Act of 1834 took effect, the administrator d. b. n. settled an account, in which he was charged with the sum received by him from the former administrator. This charge was not excepted to by the sureties or the heirs. It was said that by the terms of the administration bond future accessions were contemplated.
   The opinion of the Court was delivered by

Black, C. J.

A widow desires to have her share out of the proceeds of her deceased husband’s personal property. To recover it she brings an action against the administrator of her husband’s administrator; and he proves, by way of defence, that he has paid it long ago to the administrator de bonis non of the husband. Was this an answer to the action ? By the 31st section of the act of 1834 it is declared, that administrators de bonis non shall be the proper persons to receive such funds from their predecessors or their legal representatives. It was intended to keep the administration in one line, and not compel the representative of a deceased administrator to make distribution of one part among the heirs and creditors of the original decedent while the administrator de bonis non was doing the same thing with another part of the same estate. But this, says the plaintiff’s counsel, was a case in which the balance was ascertained and the administrator de bonis non appointed before the passage of the act and at a time when the law was otherwise. No matter. It has been twice decided (9 Watts 488; 7 Barr 316) that this section applies to cases then existing as well as to others which might thereafter arise. The argument against this construction of tire law that it changes the responsibilities of sureties is not sound, for, in point of fact, it does not change them. The sureties are bound for all the money which may at any time come into the hands of'the administrator de bonis non and with which he is chargeable in his accounts, whether anticipated at the date of the bond or not. Nor is the case altered by the fact that the payment was made previous to 1834. The act of that year having given to the administrator de bonis non the exclusive right to receive it, if he had it already, made it a fund in his hands for the very uses to which it would have been applicable in ease he had got it afterwards. Those who will not accept this proposition without an argument to prove it, are referred to the convincing reasons furnished by the judge who tried the cause below.

Judgment affirmed.


author: Lewis, J.

text:
    Beaver versus Beaver.
    1. One who is not a party to the contract in suit, who had subsequently acquired an interest in it which, however, before the institution of the suit ho had re-sold under an agreement by which he was to b® “ cleared from the same,’-’ and who had no interest in the result of the suit, is a competent witness for the plaintiff who claimed under the contract.
    2. In a suit by administrators of an insolvent estate the defendant is entitled to credit for a payment by him of a note in which he was surety for the decedent, though paid by the defendant since the institution of the suit. The case of Bosler's Administrators v. The Exchange Bank, 4 Barr 32, in effect overruled.
    3. In such a suit the defendant is also entitled to a conditional,verdict, permitting him to retain in his hands so much of the amount due by him on the claim in suit as shall be sufficient to satisfy a note in which he is surety for the decedent, and which is still unpaid, until he be exonerated from the same, provided the claim, for which he is surety be due and payable when the equitable relief is asked. It is not material that the claim for which he was surety was not due in the lifetime of the decedent.
    Error to the Common Pleas of Chester county.

    This was an action of assumpsit, by Eliza Beaver and Henry Kauffman, administrators, &c., of John Beaver, deceased, v. Samuel ■Beaver, in which the plaintiffs claimed the one-half of an alleged loss of $557.02, on the sale of apples, in the purchase of which he alleged the decedent and the defendant were concerned; and also one-half of the interest on.the money invested therein. It appeared that the apples were purchased in the fall of 1847. The plaintiffs also claimed $236.12, on hook account.
    The pleas were non assumpsit and payment, with leave, &e., and ■notice was given of a set-off on hook account, beyond that claimed by the plaintffs. Also, that the defendant was surety for John Beaver, the decedent, in a note for $600, dated April 10,1851, to the Great Valley Baptist Church; and also in another noté to Ann Eliza Matlaek, for $350, dated Sept. 3, 1850. In the latter note David Hazard was co-surety. Since the institution of this suit, this latter note had been paid off by the sureties, after the administrators of the estate of John Beaver, the principal, had paid $100.89 upon it.
    In order to prove the transaction relating to the apples, the plaintiff called John Benjamin, who, being examined on bis voir dire, testified that he became interested in the apple speculation soon after John and Samuel Beaver concluded to enter into it. The witness was interested to the extent of one-half of John Beaver’s share. In December, 1847, he sold his interest in the apples to John Beaver. He exhibited a paper signed by John Beaver, 12 mo. 24, ’47, in which John Beaver admitted the purchase from Benjamin, and that he had “cleared him from the same.” The admission of the witness was excepted to, and was the subject of the first bill of exceptions.
    The plaintiff also gave in evidence a claim by book aeeount.
    On part of the defendant was exhibited his book account, verified by his oath, and accompanied by other proof. After producing his notice of set-off and special matter, there was offered in evidence, on his part, the #600 note above mentioned, accompanied by the proof that the defendant was surety for John Beaver, and liable to pay the whole except 25.9 per cent. (#178) paid by the administrators. The proof was given of the borrowing of the money, and of Samuel being surety, but the Court rejected the offer of the note in evidence, and the defendant excepted. This constituted the second bill.

    The defendant then called David Hazard to prove that the money, for which the other of the notes referred to was given, was borrowed by John Beaver, and that witness and Samuel Beaver were his sureties for the same; that #1 Off. 89 had been paid by the plaintiffs; and that the rest had been paid by the sureties since the commencement o'f the suit, in equal shares. This offer was, on objection, rejected by the Court, and defendant excepted. This constituted the third bill.

    The defendant then offered to prove the same facts as stated in the two last offers, with the additional fact that the plaintiffs had filed their administration account, which had been confirmed by the Court; that the balance in the administrator’s hands being found insufficient to pay the decedent’s debts, an auditor was appointed, on petition of plaintiffs, to distribute that balance among the creditors; and that the assets had sufficed to pay but 25.9 in the dollar. The Court overruled the offer, and defendant excepted. This constituted, the fourth bill.

    The defendant then asked the Court to charge that it was a good defence that the defendant was bound as surety for John Beaver for- the payment of money exceeding in amount any balance due to him from the defendant. The Court answered the point in the negative, and the defendant excepted — and this constituted the last MU.

    Verdict was rendered for the plaintiff.
    Error was assigned, — 1. As to the admission of John Benjamin as a witness. 2. To the admission of the evidence as to the note to the Valley Baptist Church, as stated in the second bill of exceptions. S. In rejecting the evidence as to the note to Ann E. Matlack. 4. In rejecting the evidence stated in the fourth bill. 5. In negativing the point submitted on part of the defendant.
    Lewis, for the plaintiff in error.
    It was contended that the administrators coaid not recover from the defendant, when the latter, as surety for the decedent, was liable for more than the amount claimed by the administrators: 2 Rawle 227; 17 Ser. & R. 287; 1 Barr 266; 2 Dev. Ch. 31; 1 Freem. Ch. 273. As soon as a surety’s obligation becomes absolute, he is entitled in equity to require the debtor to exonerate him, and he may exhibit a bill for the purpose: 2 Bro. C. C. 579, Nesbit v. Smith; Theo. 226; 1 Story’s Eq. 5-327-639.
    As to the 3d specification, the extent of the defendant’s liability on the note had been definitively ascertained: 2 Jones 342.

      Pennepacleer, for the defendants in error.
    The notes as evidence of set-off or equitable defence were rejected on the authority of the cases in 4 Barr 32, Bosler v. Exchange Bank; and 8 Barr 403, Light v. Leininger.
   The opinion of the Court was delivered by

Lewis, J.

The errors complained of relate to the admission of John Benjamin as a witness for the plaintiff below, and to the ruling of the court against the matters of defence relied on by the plaintiff in error.

It does not appear that John Benjamin was ever a party to the contract with the defendant on which the action was brought. That contract was one in which Samuel and John Beaver were the only parties. The witness had acquired from John Beaver an interest in it which he had re-sold to the man from whom he acquired it, as early as December, 1847, under an agreement by which he was to be cleared from the same. He stated on his examination that he had no interest. As the witness was not an original party to the contract, as the plaintiff did not derive title through him, and as he had no interest in the result, we do not perceive any error in admitting him as a witness. As his testimony related exclusively to the “apple speculation,” if the paper-book informed us that that cause of action, and the issue found in regard to it, was separated from the other, we would not disturb it for errors existing in reference to the other parts of the case. But we are left in the dark on this point, and it must therefore fall, in the general result.

In Bosler’s Administrators v. Exchange Bank, 4 Barr 32, it was held that a debt not due at the death of the plaintiff’s intestate, could not be set off; and in Light v. Leininger, 8 Barr 403, it was decided that if the debt was due at the death of the deep-dent, it might be set off, although the estate was insolvent. It was there affirmed as a principle that “ mutual demands mutually pay and satisfy each other, if the defendant chooses to malee defence.” But these cases do not touch the question presented on this record. The case before us depends upon the equity of a surety. As between principal and surety, Courts of Equity always lend their aid for the protection of the latter. As soon as the surety’s obligation to pay becomes absolute, he is entitled in equity to require the principal debtor to exonerate him, and he may file a bill to compel an exoneration, although the creditor has not demanded payment from him: Theobald’s Principal & Surety 226; Nesbit v. Smith, 2 Bro. C. C. 579; Lee v. Brook, Moseley R. 318; Story’s Equity 327. But the surety would not be entitled to exoneration before the debt became payable, because it is implied by the contract that he engaged to stand bound for the principal until the maturity of the obligation: Cock v. Ravie, 6 Ves. Jr. 283; Antrobus v. Davidson, 3 Mer. 569; Theobald 227. In accordance with these principles, it was decided by this Court in Ross v. McKinney, 2 Rawle 227, that where a suit was brought to recover a legacy, the executor might demand a conditional verdict, under which he would be permitted to retain the legacy until he was indemnified against a demand for which the testator was surety for the legatee. That principle is' applicable to the case before us. In regard to the note given to Ann Eliza Matlack, which has been paid since suit brought, the defendant below ought to have been allowed a credit for the sum which he paid, as surety, on this claim. Although paid since suit brought, the equity originated before, and the defence does not stand upon the footing of a cross demand purchased by a defendant after suit brought. Against the claim in favor of the Yalley Baptist Church, he ought to be indemnified by a conditional verdict permitting him to retain in his hands so much of the sum recovered as shall be sufficient to satisfy it, until exonerated, provided the claim be due and payable at the time when this equitable relief shall be demanded. In a case of this kind it is not material that the debt was not due in the lifetime of the decedent. Although his right to call for the interposition of equity does not arise until his principal is in default by neglecting to pay the claim at maturity, it is founded upon a contract which existed before; and while he has a claim against the decedent so equitable as this, it is unjust that the representative of the latter should deprive him of the security already in his hands. We should never forget that judicial tribunals are established for the purpose of administering justice.

Judgment reversed and venire de novo awarded.


text:
    Tracey versus Pendleton.
    1. After a party has gone to trial before a president judge holding a special Court out of his judicial district, he is precluded from objecting to the judgment that the case was tried in the absence of the associate judges of the county.
    2. Such objection is not one to {he jurisdiction of the Court, as the jurisdiction of the Common Pleas is unquestionable; and after trial this Court will not say that the case has been improperly certified to the special Court.
    3. The Act of 10th April, 1849, authorizing the holding of special Courts before the president judge of an adjoining judicial district, provides that the latter judge shall take the place of the proper president, and that the proceedings had in the special Court shall be “ of the same force and effect, and be conducted according to the same rules and regulations, to all intents and purposes, as if the same had occurred before the proper president of the district.” It was Held, that as the latter may hold a Court of Common Pleas without the associates, the former may also do so.
    4. After the passage of the Acts of 10th April, 1849, and 18th April, 1853, authorizing the holding of special Courts by the president judge of any other judicial district, the parties went to trial without objection before the president judge of another district, holding a special Court. It was Held, that this Court would presume the necessity for a special Court and the existence of an arrangement to hold the said Court, according to the provisions of those Acts.
    Error, to tbe Common Pleas of Bradford county.

    This was an action of debt to May Term, 1847, on book account, by Robert Pendleton and another v. Henry W. Tracey. The case was on the trial list for February Term, 1852; but Wilmot, President Judge, having been concerned as counsel in the case, it was certified for trial before the Hon. E. Gr. White, President Judge of an adjoining district. A special Court was accordingly appointed, and was held by White, J., in November, 1853. On November 8, 1853, this case was tried before him, the associates not being on the bench, and verdict was rendered for the plaintiffs. On November 10, 1853, application for a new trial was made and was overruled. On same day the defendant’s counsel objected to judgment being entered upon the verdict,- upon the ground of the absence of the associate judges of Bradford county.
    On same day, White, J., directed the paper containing the objection to be filed; and stating that the objection was not made during the trial of the case, nor till after a rule for a new trial was refused, he directed judgment to be entered on the verdict.
    It was assigned for error that the Court erred in directing judgment to be entered upon the verdict. 2. That the judge having no authority to hold the Court, the judgment was void for want of jurisdiction.

      Mercur and Biwell, for plaintiff in error.
    , for defendants in error.
   The opinion of the Court was delivered by

Lewis, J.

The trial of this cause took place before the President of an adjoining district, at a special Court held in Bradford county, for the purpose of deciding causes in which the proper President Judge had been concerned as counsel. The parties went to trial in the absence of the associate judges, and the want of authority in the Presiding Judge is now assigned for error. If this be an objection to the right of the judge to hold the Court, without the aid of the associates, and not a plea to the jurisdiction of the Court itself, it is plain that the irregularity is waived by proceeding to trial, before him, without objection. Like a challenge to a juror, it is waived by a trial, upon the familiar principle that a party, who has taken his chance for a decision in his favor, shall not be allowed to except afterwards to the qualifications of his triers. To avoid this difficulty, the plaintiff in error contends that “the judgment is void for want of jurisdiction.” But is there a want of jurisdiction ? Certainly not. Whatever objections may be made to the right of the Presiding Judge to exercise the office, there can be no question in regard to the jurisdiction of the Court. He was the President Judge, defacto, and was so recognised by all parties. His acts are therefore binding upon them. It was properly remarked by Judge Duncan, that a Court of Error will not say that a cause has been improperly certified to a special Court, after all parties have agreed, without objection, to go on to trial: Barrington v. Bank of Washington, 14 Ser. & R. 419.

But there is nothing in the objection, even if the plaintiff in error was at liberty to make it now. The cause was tried on the 8th November, 1853. At this time the Acts of 10th April, 1849, and 18th April, 1853, had authorized an arrangement, by which, whenever it should be necessary to hold a special Court, any President Judge might “take the place of the proper President,” “without additional notice or special venire.” It was expressly provided that “ all proceedings” were to have “ the same force and effect,” and be “ conducted according to the same rules and regulations, to all intents and purposes, as if the same had occurred before the proper President of the district.” . This language is sufficiently comprehensive to give the Presiding Judge, at a special Court of Common Pleas, as full power as the proper President possesses. As the latter may hold a Court of Common Pleas -without the associates, the former may exercise the same power. Their absence is not the fault of the Presiding Judge. Nor is it the fault of the parties. However useful they may be in the Orphans’ Court, and in the exercise of criminal jurisdic-^ tion, the constitution does not require their presence in the Common Pleas. The recent legislation is in conformity to the constitution, and has been found to accord with the public convenience. Whenever the parties go to trial before the President of a different district, without objection, .the Court of Error will presume the “ necessity for a special Court,” and the existence of an arrangement” to hold it, according to the provisions of the statutes of 1849 and 1853.

Judgment affirmed.


author: Woodward, J.

text:
    Howard versus Murphy.
    1. Where a party in his bill of exceptions to the rejection of evidence does not indicate the character of the evidence rejected, so that this Court may judge of its admissibility, the objection will be held 'to have been waived. See also Snowden v. Warder, 3 Hawk 104.
    2. In an action on a lease made by the plaintiff, who was in undisputed possession of the premises, the defendant, the lessee, offered generally to show that the plaintiff “had no interest in the property leased at the time he leased it, and had no right to lease it,” but no facts were offered to be proved from which the want of title in the lessor would appear: it was Held, that the offer was insufficient, and that the bill of exceptions to the rejection of the ovidonce furnished no ground for reversal.
    3. The plaintiff, in undisputed possession of premises by his tenants, leased them to the defendants for the term of one year: it was Held, that the lessees, though they had not been in possession under the lease, having declined to occupy under it, were not to be relieved from the payment of the rent by showing that the title to the premises was in another, no outstanding title being set up.
    Error to the Common Pleas of Schuylkill county.

    This was an action by Michael Murphy v. Howard, Earl, and Weaver, in business under the name of Howard, Earl & Co. The declaration contained two counts, one for the use and occupation of part of a house for one year from 1st April, 1851; and the second was on an agreement to pay $200 for the premises for the time above referred to.
    In February, 1851, Rogers, Sinnickson & Co. occupied the premises under a lease from Murphy, the plaintiff. In that month they notified Murphy that they intended to leave the premises on the 1st of April following. To this Murphy objected on the ground that they had leased for a longer period. After that, viz., in March, 1851, Murphy told the clerk of Rogers & Co. that he had an opportunity of leasing the premises, and would release
      Rogers & Co. It appeared that Earl and Weaver applied to W. L. Whitney, who stated that he was the agent of Murphy, and inquired if the rooms in question were for rent, and they were informed that they were for rent for one or for five years. At their request, Whitney drew an instrument of Writing, stating that Whitney, as agent for Murphy, agreed to bind himself to let the premises to Weaver for a period not less than one year, nor more than five years, at $200 per year. The paper was handed to Weaver. The instrument was not copied into the paper-book, but it seemed to be intimated that it was signed by either Weaver or Earl. Its date was not stated. Soon afterwards the agent perceived that the defendants, who were an Express Company, were in possession. They were in possession before the 1st of April, but not after that day. The agent stated that the rooms were occupied by others when he leased to Weaver. He stated that he received the keys of the room on the 1st of April, 1851, under a protest by him. He said he got the keys from the agent of Rogers & Co.
    On the part of the defendants, it was proposed to ask the witness whether the keys were not delivered to him, as the agent of Murphy, on the 1st April, 1851, and whether the defendants before that time did not deny that they had leased the rooms'. This was rejected.
    It was admitted that the defendants had leased from Rogers & Co., prior to the 1st April, 1851, and had paid to them rent till that day. ■
    On part of the: defendants it was offered to prove “ that Michael Murphy had no interest in the property leased, at the time he leased it, and had no right to lease it.”
    This was objected to, and was rejected. It was the 3d bill.
    Jordan, President Judge, instructed the jury that if they believed that Weaver, one of the firm of Howard, Earl & Co., agreed to lease the property for one year, at the amount stated, viz., $200 per year, the plaintiff was entitled to recover.
    Yerdict for plaintiff for $214.
    It was assigned for error, that the Court erred in rejecting the evidence stated in the third bill of exceptions.

      Gumming and Hannan, for plaintiff in error.
    There was no entry under the lease, the possession of the premises was not withheld — and the contract was repudiated on account of want of power in the lessor to make it, because he was not at the time the owner. The case of Gleim v. Rise, 6 Watts 44, was cited.

      Williamson, for defendants in error.
    At the time the premises were leased to the defendants, the plaintiff, by his tenants, Rogers & Co., was in the undisputed possession, and no one lias opposed liis title or possession. It was not even distinctly alleged that there was an outstanding title in any person specified. When the lease was made to the defendants the plaintiff held Rogers & Co. liable for rent for at least part of the time for which the premises were leased to the defendants; how long did not appear by the evidence. He released them and they yielded the possession to the defendants. It was alleged that the reason assigned on the part of the Co. for leaving the premises was that the doors wore too narrow.

    The offer was not to prove that the plaintiff had no' right to lease the premises on the 1st April, 1851, when the term was to commence ; but that he had not the power to lease when the lease teas made. It was not offered to show title in any specified person by deeds or other writing, or specified matters of fact resting in the testimony of witnesses, or of both; and therefore the essentials of an offer of testimony were wanting. The offer was general.
   The opinion of the Court was delivered by

Woodward, J.

The plaintiffs in error are to be considered as occupying under the lease with Murphy’s agent, for if they did not remain in the actual possession of the premises, they might have done so. They were not evicted or disturbed in their possession by any title paramount to Murphy’s, and if they turned themselves out, it was their own fault and no reason for refusing to pay the stipulated rent. A tenant cannot be compelled to occupy the premises he leases. If he chooses that they shall stand vacant, lfis will is law to himself, but let him not imagine' that his caprice, or change of interest, will excuse his payment of the rent.

This case then, viewed as an occupancy under the lease, falls within the general principle which forbids a tenant to impeach his landlord’s title, and does not resemble the class of exceptions to which Gleim v. Rise, 6 Watts 44, belongs. In that case there was no possession under the plaintiff, the pretended landlord, but an actual holding under the real owner, and it was properly permitted to the tenant to show the fraud and imposition practised on him by the pretender; but here was an uninterrupted holding, or its equivalent, an opportunity to hold under Murphy, and what if he had not the title f He had the right of possession, and his demise was good even if the title were in another. The defendants offered to prove that he had no right to lease it, and that he had no interest in the property, but how and why had he no right and no interest? The bill is silent. No facts were offered to be proved out of which his want of title would result as a legal conclusion. He certainly had some interest, for he had the possession by his former tenants Rogers, Sinnickson & Co., and the plaintiffs in error went into possession under his title, and for aught that was shown or offered to be shown, might have remained in possession for their full term. A bill of exceptions which does not indicate the character of the evidence offered, is a waiver of the offer, and no ground for reversing: Snowden v. Warder, 3 Rawle 104. For every reason, not only the technical defects of the bill, but the general facts of the case, it is apparent there is ho error in the record, and the judgment is accordingly affirmed.


text:
    Dingee versus Jackson.
    'The Court below were asked to say that “there is no evidence of fraud or mistake in this casewhich Avas refused, because the judge thought there was some evidence for the consideration of the jury. Held, that no call having been made on the trial upon the party Avho alleged fraud or mistake to indicate the evidence relied on to prove it, and the evidence not being specified and embodied in the bill of exceptions, this Court would not reverse on account of such refusal and submission.
    Error to the Common Pleas of Chester county.

    This was an action of assumpsit, brought in November, 1847, by John Jackson, who was a laboring man advanced in life, against Jacob Dingee, to recover wages for four years’ sendees, alleged to have been rendered to Dingee in the capacity of a hired servant on his farm, between 1842 and 1846.
    The plea was non assumpsit infra sex annos.

    The defendant resisted the claim, alleging a settlement between the parties December, 1844, and payment to Jackson in full of the balance of $7.50, found due him: and that although the plaintiff continued for two years afterwards to live with the defendant, he was not in his service.
    On his part was exhibited a submission made of all matters in difference, in August, 1846, to three persons’, and an award in writing, dated December 26, 1846. The award was for $14.56 in favor of Dingee.
    The plaintiff controverted the alleged fact of settlement, and denied the validity of the award. The controversy before the jury related principally to the account between the parties, the settlement and the award.
    The settlement having been proved by two witnesses, the defendant’s counsel contended that that settlement was conclusive, unless upon proof of fraud- or mistake — that the existence of fraud or mistake, in order to invalidate the settlement must be proved, and could not be presumed without proof; and that there was no evidence of fraud or mistake: and he submitted points to that effect.

      The last point was — “• There is no evidence of fraud or mistake.” The Court was asked so to charge.
    The Court declined to charge as requested, and this was assigned for error.
   The opinion of the Court was delivered by

Lewis, J.

The Court was asked to say that “there is no evidence of fraud or mistake in this case.” This direction was refused, because the President Judge thought that there was some evidence for the consideration of the jury, and the cause was submitted for their decision. In The Lancaster County Bank v. Albright, 1 Am. Law Reg. 633, 9 Harris 228, it was declared that a point put in this way to the Court was “ not according to good practice, and that a better way would be to call on the opposite counsel to indicate in writing the evidence relied on,” and then ask the instruction of the Court upon it as thus specified. In Garrett v. Jackson, 8 Harris 336, it was held that “ when the Court was asked to say that there is evidence of a particular fact, such evidence ought to be distinctly indicated. To say that evidence exists on a certain subject, is not making a point of law which the Court is bound to respond to. It is no error to refer such a question to the jury.” “ A party may entitle himself to the opinion of the Court on the legal effect of any portion of the evidence, but not without specifically referring to it in his prayer for instructions.” No call was made upon the opposite counsel to indicate the evidence relied upon to prove fraud or mistake in this case, and it was not specified in writing. If we reversed the decision, it would be for error in the judgment of the Court upon a question of fact. It is manifest that we cannot safely review such a decision unless the attention of the Court and counsel be particularly called to the point on the trial, and the evidence relied upon be specified and embodied in the bill of exception. If the Court of Review is compelled to examine the loose and imperfect notes of all the testimony in the cause, for the purpose of finding the evidence of a particular fact, there would be great danger of doing injustice. The particular circumstances relied upon might have been imperfectly reduced to writing, or might escape attention. When we are asked to “seek for «• needle in a hay-stack,” the probability is that we should not find it. We ought not to reverse for a refusal to take the cause from the jury, except in a very clear case. The error here assigned is not clearly established according to the proper practice, and the judgment is to be affirmed.

Judgment affirmed.


text:
    Huber versus Wilson.
    1. In an action on the case for deceit it was not error in the Court in charging the jury to omit a distinction which did not affect the right of action, but which at most affected only the amount of damages, and to which the attention of the Court was not directed by the party complaining of the instruction.
    2. To entitle a party to recover in an action for false representations made to his injury, the representations should be both false and fraudulent; must be false in fact, and the party making them must have known that they were so; and the credit by the plaintiff should have been induced hy the representations.
    3. In such an action the plaintiff may show that the real estate of the person with whom he contracted has been sold at sheriff's sale, and that his claim for the property delivered was not paid out of the proceeds.
    Error to the District Court, Philadelphia.

    This was an action on the case, by David C. Wilson against James S. Huber, for deceit in relation to the character and circumstances of one Richardson. The plaintiff resided in Wilmington, ■Delaware, and being engaged in the business of brickmaking, was called upon, on or about the 22d of October, 1850, by Richardson, who resided in Philadelphia, for the purpose of procuring bricks for certain houses he wa.s erecting. Richardson stated that he wished to buy 300,000 bricks, and stated the kinds of brick he wanted. The plaintiff, to whom he was a stranger, desired a reference as to him, and Richardson referred to the defendant, who resided in Philadelphia. The plaintiff caused a letter to he addressed to the defendant, which was mailed on the night of the 22d, and about two days afterwards, viz., on 24th October, 1850, the defendant addressed the plaintiff, stating, “ I sold Mr. Richardson the ground on which he is now building. I was perfectly satisfied, or should not have done so; I have always found him a man of truth, and, personally, have no doubt of his ability to carry out his engagements. I would sell him myself had I any materials for sale.”
    Richardson was to pay half in cash, and the balance in about sixty days, or shortly after the delivery of the bricks.
    The delivery of the bricks was commenced on 24th October, 1850, and ended on 22d November following. — Total, 300,000, at $6. It rather appeared from the evidence that the first of the brides were delivered at the wharf before the receipt of Huber’s answer. The delivery proceeded from the 24th October till 22d of November, 1850.
    Richardson had purchased, on ground-rent, from II. Stiles, acting through Huber, as Ms agent, eighteen lots on Front street, in the county of Philadelphia. Richardson’s object was to build on the lots, and he desired $9000 to be advanced on the property. Huber informed him that Stiles was willing to advance but $350 on each lot. • Richardson had not ability to erect the proposed buildings, and he informed Huber that he could not get along with that amount of money. Huber told him that if he took up the lots,' Stiles would let him have two or three thousand dollars more, if he wanted it; but, if Stiles would not advance him that amount, that he (Huber) would loan him that amount. Richardson then agreed to take the 18 lots. Huber requested him to refer to him when he wanted to purchase materials for the buildings.
    The agreement between Richardson and Stiles was dated on 18th July, 1850, and the deeds were executed on 18th September following, for nine of the lots; and, on 10th October, for the other nine. On the 11th October, 1850, another agreement similar to the first was executed by the same parties. The lots were to be subject to ground-rent as before stated.
    Whilst Richardson was building the houses, for which he purchased the bricks, he borrowed from Iiuber $300, for which he gave his bond, dated November 5th, 1850, on which judgment was entered on 10th January, 1851. The buildings were stopped before completion, and they were levied on by proceeding under the said judgment of Huber, and were sold by the sheriff, is May, 1851.
    . During the trial, the plaintiff’s counsel offered in evidence the record of the said judgment entered to December Term, 1850, in order to show that an attachment was issued on the judgment entered on the bond of Richardson to Hubei’ — that the money was paid and tbe attachment discontinued; and that afterwards Huber proceeded on the judgment, and had the property sold. It was stated that one object of the offer was to show that the property yielded but little to the plaintiff in this suit. The evidence was admitted for that purpose.
    Sharswood, J., charged the jury, inter alia, that the gist of the action was a false and fraudulent representation by the defendant, by which the plaintiff was injured. “ In order to recover, the representation must be both false and fraudulent — must be false in fact, and the party making it must have known that it was so, and it must appear in addition that the credit by the defendant was induced by the representation. As to the falsity, it may be by the positive statement of a falsehood, or by the suppression of material facts which the other party ought to know. It is not necessary that there should be collusion between the defendant and the person recommended — nor that either intended to defraud the party inquiring. It is sufficient if such has been the effect of the representation. Representations of such a character -are frequently made from inconsiderateness, without a design of advancing the interest of the party making them. The motives of sucls party are not to be considered, if he made representations productive of loss to another, knowing the representations to be false; or if he has suppressed material facts within his knowledge, he is responsible as for a fraudulent deceit. The question for the jury is one of good faith, and if they believe that the defendant believed his own statement, they should find in his favor. Suppression of circumstances is evidence of insincerity, though not conclusive. On the ojhey hand, if tJ,ies4efendant asserted a fact .' which he knew, bub-dictnot 5cí¿e«e,Níiouglv riót asserted to injure “the plaintiff, but in order to oblige the buyer or some other person, ho is guilty of falsehood, and must bear the consequences.”
    He also observed that if the defendant, after the representations in question, made false representations to others, these should not affect the result of the case — that they were material only as showing a purpose to deceive at the tim.e he made the representations in question.
    He further charged, — 3. That if the contrast between the plaintiff and Richardson was made without any reference to these representations, and was fully complete before the receipt of Huber’s letter, the plaintiff’s action failed. But if the reference to the defendant was given,’ and the plaintiff 'began to furnish the bricks, upon the confidence that the reference to the defendant would be satisfactory, and proceeded to complete the contract, he had the right to recover.
    February 24th, 1853, verdict for plaintiff for ¡$2093.91.
    Error was assigned to the reception in evidence of the record of the judgment of Huber v. Richardson. 2. In charging “that” if defendant’s motive was to get the houses built, it was the same as if he meant to defraud plaintiff,” and in saying that his motive was not material. 3. In instructing the jury that if a reference was asked and Iiuber named, and though before the receipt of Huber’s letter the plaintiff began to send the bricks, in the confidence that the answer would be satisfactory, the plaintiff could maintain the action. 4. That the judge erred in submitting the case to the jury, there being no evidence to sustain the narr.

      Campbell, for plaintiff in error.
    The evidence of the record was immaterial. It was for the defendant to prove in reduction of damages that the property yielded the plaintiff something, and not for the latter to prove that it yielded him nothing. 2. The defendant’s motive was material. 3. Representations which the plaintiff had confidence would be sent to him were not equivalent to those which he received; and the judge did not distinguish between property parted with by the plaintiff before and that which he parted with after the receipt of Huber’s letter. 4. To enable the plaintiff to recover he should have proved that, in order to deceive, the defendant suppressed a material truth; or, 2. That he asserted a falsehood, and of which he neither knew nor believed anything. 3. If the defendant believed his own statement, the action would not lie against him. Reference was made to 2 Harris 142, Bokee v. Walker; 13 Howard 198.

      Kneass and Juvenal, contri.
    In support of the action reference was made to 6 Barr 316; 3 Term Rep. 51; 6 Bing. 369; 7 Id. 105; 7 Wend. 9; 2 Harris 142.
    3. If no letter from Huber had been received, or if it had proved unsatisfactory, the sale might have been treated as a nullity and suit been brought immediately: 15 Mass. 75; 17 Id. 133; 15 Id. 156; 13 Johnson 454.
    As to the 4th assignment, it was alleged that Huber intended to induce the plaintiff to*believe that Richardson was the owner of the ground unencumbered of any rent-charge. Besides, Huber had not sold the ground to Richardson for himself, but as agent of Stiles. Though he wrote that he had no doubt of the ability of Richardson to carry out his engagements, he had been previously informed by Richardson that he could not complete the buildings with only $350 on each lot which Stiles was to advance, and he agreed to contract on Huber’s assurance that if he wanted more money, Stiles would advance two or three thousand dollars, or else he would lend him that amount. That allegation of Richardson was not communicated to the plaintiff before the bricks were furnished.
   The opinion of the Court was delivered by

Woodward, J.

The charge contains an accurate exposition of the law of this action, and was quite as favorable to the defendant as he had any reason to expect.

As to the complaint that the judge did not distinguish between property parted with by the plaintiff before, and that which he parted with after the receipt of Huber’s letter, it is proper to observe that such a distinction did not go to the right of action, but to the measure of damages; and if the defendant meant it should be taken, he should have called the attention of the Court to it. It was not error in the Court to omit a distinction which at most could only have affected the amount of damages, and which the party entitled to it did not think proper to claim.

There is no bill of exception to evidence in our paper-books, but if one was sealed on the admission of the evidence tending to show that the plaintiff got but a small part of his claim out of a sale of Richardson’s property, we see no error in such evidence, especially when its effect was controlled by the charge, in the manner it appears to have been here.

The judgment is affirmed.


author: Knox, J.

text:
    Branch Township versus Youndt.
    uuuBi- uub provisions of the special Act of March 14, 1844, relating to the counties of Schuylkill, Northumberland, and Carbon, a suit will not lia against the sureties in the bond of a collector of road taxes, without a previous settlement of the account of the collector by the township auditors.
    Error to the Common Pleas of Schuylhill county.

    This was an action of debt, in the name of the township of Branch, v. Joel Youndt and others, brought on the bond of a collector of road taxes. Youndt was one of the supervisors of Branch township in the year 1844, and was appointed collector of road taxes. The other defendants were Jiis sureties in the bond in suit. The bond was given in pursuance of a special Act of Assembly passed on 14th March, 1844 (Nets of 1844, p. 110), by which it is provided that it shall be the duty of the supervisors of the highways of every township and borough in the counties of Schuylkill, Northumberland, and Carbon, annually to select one of their number, or appoint some suitable inhabitant of the township or borough to be collector of the road taxes levied or assessed for such township or borough; which supervisor, or other person appointed collector as aforesaid, shall give bond with two or more sufficient securities, to he approved by the township or borough auditors, and deposited with them; which said bond shall be in the name of such township or borough, and the condition thereof shall he that such collector shall well and truly collect and pay over to the township or borough treasurer, if one he elected or appointed, and if not, then to the supervisors; or account for, according to law, the whole amount of the taxes charged and assessed in the duplicate delivered to such collector.
    The condition of the bond in suit was, “That Joel Youndt, supervisor of Branch township, and collector of the said road tax, shall well and truly collect and pay over to the treasurer, or account for, according to law, the whole amount of the taxes charged and assessed in the duplicate delivered to the said collector at or upon the time appointed according to law.”
    Kidder, President Judge, charged, inter alia, that until settlement of the account of Youndt by the township auditors, no action lay upon the bond. That if Youndt had failed to appear at the proper time before the auditors, after being notified, they should have closed his account in his absence; and that the sureties might justly claim that the proceedings required by law should have been pursued before suit against them.
    Such instruction was assigned for error.

      Parry, with whom was Qamphell, for plaintiff in error.
    After referring to sections 39, 40-7-8-9, and 102, of the Act of 15th April, 1834, relating to township rates and levies, and to the special Act of 14th March, 1844, he observed that the accounts of the collector had not by law been referred to the township auditors, and that therefore they had no control over them, and that their action was not necessary to give the township a right ■of action on the bond.

      Hughes, with whom was Wells, for defendants in error.
    Reference was made to 1 Penna. Rep. 282; 3 Watts 410, Gray v. Bell; Id. 411.
   The opinion of the Court was delivered by

Knox, J.

Under the provisions of an Act of Assembly passed March 14, 1844, for the counties of Schuylkill, Northumberland, and Carbon, Joel Youndt, one of the supervisors of the township of Branch, was appointed collector of the road taxes for the year 1844. In compliance with the Act he gave bond with sureties, which was approved of and deposited with the auditors of the township.

This suit is brought against the principal and his sureties upon the bond; and upon the trial, the Court of Common Pleas held that there could be no recovery because there had been no settlement of the accounts by the township auditors.

This was correct. The liability of the sureties is contingent, and no resort can be had against them until the default of the principal is fixed. The township auditors have unquestioned jurisdiction to settle the account of the supervisor and collector, and their settlement unappealed from would be conclusive in an action upon the bond. If the supervisor neglected to appear upon notice and exhibit the state of his accounts, the auditors should have passed upon them in his absence, and unless evidence of payment were before them, they would have been justified in reporting a balance against him equal to the entire amount of the duplicate, which they could have ascertained without difficulty, as it was recited in the bond. The legislature has provided a local tribunal to determine primarily the amount of receipts and expenditures by the officers whose duty it is to collect and disburse the township revenues, and public policy coincides with the rules of law in requiring the remedy plainly pointed out to be pursued.

Judgment affirmed.


text:
    Rogers versus Ratcliffe.
    1. Where the plaintiff in an action in the Common Pleas on a contract recovers less than $100, and there is nothing oh the record to show that the demand was reduced by set-off, the presumption is that the amount in controversy was within the jurisdiction of a justice of the peace.
    2. Testimony given in the Court below on the hearing of a motion relative to costs, forms no part of the record, nor can it be brought up by bill of exception.
    3. Where the Court below, in a question whether a plaintiff who had recovered less than $100 in an action in ¶ the Common Pleas on a promissory note for $100 was entitled to costs, heard testimony in order to show1 how the amount recovered was reduced below that amount. Held, that the testimony being no part of the record, the decision of the Court below founded on it was not the subject of review.
    Error to the Common Pleas of Chester county.

    This was an action of assumpsit in the Common Pleas, brought by Jacob Rogers, Jr., Administrator, &e., of Jacob Rogers, deceased, v. Charles Ratcliffe, on a. promissory note for $ 100. Arbitrators awarded $7o for plaintiff. No plea of set-off or other plea appeared on the papei'-book. No appeal was taken. The defendant paid the amount of the award, and a rule was granted to show cause why the execution should not be set aside — the question being whether the plaintiff was entitled to recover costs. On the argument of the rule the plaintiff called one of the arbitrators to testify as to the award. . The Court expressed the opinion that the amount of the plaintiff’s claim was not reduced by a set-off, and the rule was made absolute.
    This judgment was assigned for error.

      Pennypacker, for plaintiff in error.

      Burlington, for defendant in error.
    Nothing but the record is before this Court. Depositions taken in the Common Pleas on a rule to show cause why an appeal should not be quashed, are not part of the record: 6 Harris 78. Nor are the reasons given by the Court on a rule to show cause why an execution should not be set aside: 3 W. & Ser. 91. Also cited 3 Barr 460; 2 Ser. & R. 532; 3 Rawle 282; 1 Watts 39.
    It was contended that this was not a ease of set-off. The defendant had no claim against the plaintiff, for which he could have maintained an action.
   The opinion of the Court was delivered by

Lewis, J.

The plaintiff in error brought an aqtion on contract in the Court of Common Pleas, without filing an affidavit that his demand exceeded one hundred dollars. Pie recovered less than that sum. There was no plea of set-off upon the record. As the decision of the cause had been made by arbitrators, the Court of Common Pleas heard depositions for the purpose of determining the question of costs, and upon full examination into the moans by which the plaintiff’s demand had been reduced, decided that it had not been reduced by set-off, and that the plaintiff was not entitled to recover, costs. If the Court was right in its decision of the question of fact, the judgment that the plaintiff could not recover costs' is according to the letter of the Act of Assembly. Where a plaintiff in an action on contract recovers less than one hundred dojlars, and there is nothing to show that the demand was reduced by set-off, the presumption is that the amount was within the jurisdiction of a' justice of the peace. In such a case the plaintiff’s refusal to bring his cause before the appointed tribunal justly deprives him of costs.

But was the Court right in its solution of the question of fact ? How are we to ascertain? There is nothing on the record to show that the fact vras otherwise than as found by the Court. The depositions produced before the Court, on the hearing of the motion in relation to the costs, form no part of the record; nor can they be brought here by bill of exception. The statute which gives the bill does not extend the privilege to the decisions of the Court upon depositions produced on the hearing of motions of this kind. As the evidence on which the Court acted is not judicially before us, we have no means of reviewing the decision. For this reason the rule was established many years ago, in relation to this section of the Act of Assembly, that the decision of the Common Pleas is not to be treated as erroneous unless the fact which impeaches it appears on the face of the record:” Spear v. Jameson, 2 Ser. & R. 532. There is nothing on this record which impeaches the decision below, and the judgment is therefore to be affirmed.

Judgment affirmed.


text:
    Cake’s Appeal.
    1. A mortgage for the residuo of purchase-money of land, executed at the time of the delivery of the conveyance of the legal title and duly recorded, has priority bf lien on the land conveyed over judgments against the vendee entered after the purchase of the land and before the conveyance; and therefore a sale under a judgment entered subsequent to the mortgage does not divest its lien.
    2. A judgment against the vendee entered several days after the delivery of the conveyance, though confessed for money used in paying a portion of the purchase-money of the land, is not entitled to payment in preference to prior judgments against him entered after the purchase of the premises but before the of the title.
    3. The lien of judgments against the vendee entered before Bhe conveyance of the legal title, is extended to the whole estate in the premises on the union of the legal and equitable title effected by the conveyance of the latter.
    4. A judgment for the purchase-money of real estate, entered on the same day as the conveyance of the legal title, has priority of lien over judgments against the vendee, entered after a parol agreement by him for the purchase of the premises and before the conveyance.
    Appeal from the decree of the Common Pleas of SehuylMll county, directing distribution of proceeds of a sheriff’s sale of real estate of Samuel M. Kepner.
    By article of agreement, dated 23d Oct. 1850, Jonas Bock sold to Samuel M. Kepner a farm, containing above 287 acres, for a consideration .exceeding $8500. A part thereof, viz., $200 was paid on the execution of the agreement, and $3800 was to be paid on 1st April, 1851, when the deed was to be delivered; the residue, exceeding $4500, was to he paid in two equal payments, one on 1st April, 1852, and the other on 1st April, 1854, both to be secured by a mortgage on the land sold.
    Soon after the date of the agreement, Kepner made improvements on the land to the extent of several hundred dollars; and on the 17th April, 1851, he took possession. Previous to his taking possession, viz., on 1st April, 1851, a judgment was entered against him in favor of PT. Sertzel for $207.57.
    Afterwards, viz., on 1st August, 1851, a deed for the premises from Bock to Kepner, dated 1st day of April, 1851, was delivered to Kepner; and at the same time a mortgage, dated 1st August, 1851, was executed by Kepner in favor of Bock and delivered, to secure the last two instalments of the purchase-money, amounting to about $4500. The mortgage was duly recorded. For the amount of the payment previously due, viz., $3800, Kepner on the day of the delivery of the deed gave to Bock his check. The check was not paid at bank. A few days afterwards, viz., on 6th August, Kepner borrowed $2000 from H. L. Cake, and $2000 from another person, and on the same or next day, Kepner with this money took up his check. For the $2000 loaned by Cake, Kepner gave him a judgment bond, which was entered on 8th August, 1851. Subsequently, viz., on 14th February, 1852, a judgment was obtained by John Moser against Kepner, and under it the premises purchased by him from Bock were sold at sheriff’s sale, on 4th Sept. 1852, to H. L. Cake, for $2150.
    It also appeared that Kepner, under a parol agreement with J. Huntzinger and others, took possession in November, 1850, of a lot of ground No. 5, in the town of Ringgold. Kepner built six houses on the lot, which were completed in June, 1851. On 16th Dec. 1851, Kepner received a deed for this lot, and for an adjoining lot No. 6. At the time of the delivery of the deed Kepner gave a judgment to the vendors for $479, being the amount of the purchase-money of the two lots, and $50 for wharfage, due to them. The lot on which the houses wrere erected was sold at sheriff’s sale for $1780, and lot No. 6 for $140.
    Between the time of Kepner’s taking possession, under the parol agreement, and the delivery of the deed, several other creditors of Kepner obtained judgments against him, and it was stated by the auditor appointed in the matter, that it was claimed by such judgment-creditors that their judgments being liens on the equitable estate of the defendant in the lots, ought to be postponed only to the claim for purchase-money due to the vendors; but that the sum of $50 included in such judgment for wharfage, ought not to be paid out of the fund. The auditor reported in favor of the payment of the judgment to Huntzinger and others, the vendors, so far as it was composed of purchase-money, out of the proceeds of sale of lot No. 5; and further, that no title to lot No. 6 having been acquired by Kepner until the delivery of the deed to him on the 16th December, 1851, and the judgment of Huntzinger and others having been entered on the same day, it was the first lien upon the legal estate of the defendants in both of the lots, and was entitled to payment of the proceeds of sale of the two lots.
    In relation to the proceeds of the sale of the farm, it was contended before the auditor that though the mortgage for the purchase-money was delivered simultaneously with the deed, and duly recorded, it was not the first lien on the land within the terms of the Act of 6th April, 1830, judgments having been acquired against the purchaser after he had acquired the equitable title, and before the delivery of the deed; and that the land was sold discharged from the mortgage, which ought to be paid out of the proceeds.
    The auditor, however, being of opinion that the mortgage was the first lien, and that the purchaser took the land subject to the mortgage, directed the proceeds to be applied to the judgments obtained before the legal title was acquired in their order of priority.
    It was excepted to the auditor’s report that he erred in deciding that the land was sold subject to the mortgage, and in not awarding the payment of it out of the proceeds of sale. 2. In deciding that the judgments of Huntzinger and others must be first paid out of proceeds of sale of lots Nos. 5 and 6. 3. In deciding that the judgment in favor of H. L. Cake (which it was previously alleged was for a part of the purchase-money) was not entitled to priority over judgments entered after the agreement for the purchase of the premises and before the conveyance of the legal title.
    On 9th April, 1853, the exceptions were overruled and the report of the auditor confirmed. From this decree Cake appealed, —and exception was taken to the overruling of the exceptions and the confirmation of the report.

      Gumming, for appellant.
    In order that the lien of a mortgage be preserved after a sheriff’s sale, it must, by the Act of 1830, be the first lien; and it was contended that the judgment against Kepner, whilst he had only the equitable title, attached to the legal title the moment it was conveyed, and had priority over the mortgage which was not executed till after the legal estate was conveyed: 2 Pa. Rep. 101; 8 Ser. & R. 425; 4 Barr 128; 1 Id. 388. That, therefore, the mortgage was not the first lien, and was discharged by the sale.
    2. It was 'contended that the judgment of Huntzinger and others was void, on account of other indebtedness than purchase-money, viz., the claim for wharfage, being included in it.
    It was claimed for Calce that the money for which his judgment was obtained having been paid as part of the purchase-money was entitled to priority over former judgments entered against Kepner before the conveyance to him.

      Campbell and Loeser, for Bock and Hertzel.
    The mortgage was for purchase-money; it was delivered on the same day as the delivery of the deed, viz., on 1st August, 1851, and was duly recorded. It was therefore the first lien, and the property was sold subject to it: 1 Barr 386, Watt v. Steel. The Act of 1830 contains a provision in favor of a mortgage for purchase-money if recorded within sixty days. Also cited 3 Barr 79, Foster’s Appeal.
    As to Cake’s judgment — There was no communication between Bock the vendor and Cake. If Bock himself had taken a judgment for a portion of the purchase-money, and neglected to enter it of record until several days after the delivery of the deed, he -would have been postponed to judgments entered against Kepner when the owner merely of the equitable title: 1 Barr 386, Watt v. Steel.
   The opinion of the Court was delivered by

Knox, J.

This case is free from difficulty. A mortgage given for the residue of the purchase-money due upon a tract of land bearing even date with the conveyance of the legal title, and duly recorded, has priority of lien over judgments obtained against the holder of the equitable interest anterior to the conveyance, and therefore a sale upon a judgment entered subsequently to the mortgage does not divest its lien.

So much of Huntzinger’s judgment as was for purchase-money was clearly entitled to priority in the distribution of the proceeds arising from the sale of lot' No. 5, and the residue was the first lien upon lot No. 6. The auditor was therefore right in paying tho whole of this judgment.

The judgment of II. L. Cake et al. was last in order of time, and although its consideration was used in paying a portion of the purchase-money, it was not entered until eight days after the delivery of the deed, and the unity of the legal and equitable interest had extended the lien of all prior judgments over the whole estate.

Decree affirmed.