author: Knox, J.

text:
    Musser versus Oliver.
    1. Administrators in making distribution amongst heirs should take refundr ing bonds, otherwise they may be liable to creditors whose claims do not then appear.
    2. A ward, a few weeks after arriving at full age, executed a receipt in full to her guardian who had not settled any guardianship account. Above two years afterwards the guardian died, and the administrators, relying on the receipt, several years afterwards made distribution among the widow and heirs. Soon after, on petition, an account of the ward's estate was directed to be made by the administrators, and a balance was decreed in favor of the ward: Held, that though more than six years had elapsed from the death of the decedent before the petition was presented, and though distribution had been made, the administrators not having taken refunding bonds wore hold to be personally liable for the balance due the wards, they having had an amount of assets sufficient to pay the same.
    3. The verbal declaration of the ward after arriving at full age, that she had received all that was due to her by her guardian, on the faith of which declaration, together with her receipt to the guardian, the administrators made distribution, will not estop her from claiming from the administrators the amount finally decreed to her, they having made distribution of the assets without having taken refunding bonds.
    Error to tbe Common Pleas of Cumberland county.

    This was an action on tbe administration bond of George and Jacob Moltz, administrators of tbe estate of Jacob Moltz, deceased, and was brought in the name of tbe Commonwealth of Pennsylvania, for tbe use of John S. Oliver and Barbara bis wife, against John N. Musser, administrator de bonis non of George Rupley, deceased, a co-obligor and surety in the said administration bond. The plea was “Performance of the conditions of the bond,” &c.
    A verdict was rendered under the direction of the Court, for the plaintiff* for $2885.61.
    Jacob Moltz, the father of George and Jacob Moltz, on the 10th December, 1822, was appointed guardian of Barbara Mann, and acted as such until she came of age on 12th May, 1835. On 8th June, 1835, a settlement was made between her and her guardian, and she gave him a receipt in full, including $50 for services rendered as guardian. During this time, and until the proceedings in the Orphans’ Court were commenced against the administrators of her guardian, Barbara Mann lived with her mother and brothers and sisters in the neighborhood of Jacob Moltz, and of his administrators. On the 12th February, 1838, Jacob Moltz died, and his two sons before named became the administrators of his estate, and gave the bond on which this suit was brought. These administrators settled their first administration account the 29th January, 1839, and their final account 29th August, 1843, and, it was alleged on their part, distributed and paid the balance in their hands amongst the widow and heirs of Jacob Moltz, deceased.
    On the 8th April, 1844, John S. Oliver, who had married Barbara Mann in 1842, presented a petition to the Orphans’ Court of Cumberland county, praying for a citation to Jacob Moltz’s administrators to settle an account of their intestate as guardian of his wife. This petition was in the ordinary form to settle an account. Upon it the Court awarded a citation, to which the said administrators made answer under oath that Jacob Moltz died more than six years before; that the respondents had settled a final administration account of his estate a year before, and that the moneys of said estate had been distributed amongst the widow and heirs of their intestate; that they believed that the accounts of their intestate with said Barbara had been settled and paid in full; that the papers of Jacob Moltz at the time of his death and since have been in confusion, and that it was supposed that many of them were lost or destroyed; that among said papers still in their possession was one of which the following is a copy — the same being in the handwriting of John Black, Esq.
    “East Pennsborough Township.
    * “ Cumberland county, ss.

    “.Received of Jacob Moltz, my guardian, the sum of $728.10 in full, including $50 for services rendered as guardian. Witness my hand 8th June, 1835. her
    Barbara ^<¡ Mann.”
    Witness present — Mart Ann Mann. mark.

      It was alleged that the respondents believed this to be a final settlement between the said Barbara and her guardian. They were also informed, in the year 1889, by John Oldwine that he had had a conversation with Barbara Mann in reference to her having been paid in'full by Jacob Moltz,- her guardian, and that she had told him she had got all that was coming to her. That finding the above receipt of 8th June, 1835, amongst the papers of their deceased father, and being informed by Oldwine as before stated in 1839, and having advertised their notice to creditors as required by law, and not hearing of a claim by Barbara Mann or any person for her, and having paid as they believed all the debts of their intestate, they paid the balance in their hands to their mother and heirs of their father, without taking refunding bonds.

    It was added: The proceedings on this application were dismissed by the Orphans’ Court. An appeal was taken to the Supreme Court, who reviewed the decree of the Court below and ordered an account to be stated by the administrators of Jacob Moltz as guardian aforesaid, but the effect of that account upon their personal liability was not decided. Auditors were appointed by the Orphans’ Court, who reported an account which was confirmed 12th December, 1845, finding a balance due by the guardian of $1972.19. A suit brought shortly after on the administration bond against the administrators, was decided against the plaintiff below, was carried to the Supreme Court, and the judgment affirmed. See 10 Barr 527. Suits were brought severally against the administrators and their sureties on the administration bond, one of which is the present case.
    No points were submitted to the Court on the trial of this cause, but the following evidence was offered and rejected in part:
    Defendant offers to prove that Barbara Mann became of age 12th May, 1835, prior to her receipt in full to her guardian; that Jacob Moltz the guardian died 23d February, 1838; that letters of administration on his estate were issued to his sons, George and Jacob Moltz, who thereupon published a notice to creditors as required by law; that the said Barbara resided with her mother and brothers and sisters in the immediate neighborhood of the administrators, and her deceased guardian; that after the death of Jacob Moltz the said Barbara declared that she had settled with her guardian, and that he had paid her in full, which declarations were communicated to the said administrators before they distrit buted the estate to the widow and heirs of Jacob Moltz, deceased, which they did without taking from them refunding bonds; the receipts for which payments are also offered in evidence.
    The above offer .was objected to except the part relating to the communication made by Barbara, which was communicated to the administrators. As to this the plaintiff does not object, because the witness who will prove it testified on a former trial that the declaration was communicated to the administrators after the claim of Oliver and wife was made upon them.
    All the rest was objected to on the ground that it was immaterial to the issue and could produce no legal result against the plaintiff’s cause of action. All that part of the offer which was objected to was rejected.
    In the counter statement it was alleged that-no guardianship account was settled by Jacob Moltz. That the ward at the time of giving the receipt could neither write nor read. That after the petition of Oliver in 1844, the subject of account was referred-to auditors who reported in 1844, that after crediting the $728.10 paid to the ward, a balance of $1780.20 was due by the guardian. The Court set aside the report on the ground that the' recovery was barred by time. This decision was reversed! It was again referred to auditors who reported a larger balance. The report was confirmed. In 1849 the representatives of Moltz petitioned the Orphans’ Court for a re-examination of the account, on the ground of alleged mistakes, but decree was made against the administrators. The administrators were fixed with a devastavit, in accordance with the intimation in 10 Barr 533; after which this action on the .official bond was. brought.
    Charge of Eishek, J. — Nothing has been given in evidence to preclude the plaintiffs from recovering the whole amount of their demand. Your verdict will therefore be in favor of plaintiffs for $1972.19, with interest from the 10th of December, 1845. -
    Error was assigned, 1. In rejecting the evidence offered. 2. In taking the case from the jury, quoting the charge as above.
    See the report of the case of Commonwealth v. Moltz, in 10 Barr 527-533.

      GrallagTier and Biddle, with whom was Hepburn, for the plaintiff in error.
    — It was contended that at the time of the issuing of the citation against Moltz, the claim of plaintiffs was barred by the statute, the ward having been of age nearly nine years, and above six years having elapsed since the death of the guardian: 2 Watts 209; 6 Watts 381; 1 Pa. Rep. 282; 2 Watts 295; 4 Ser. & R. 557.
    It was further contended that the plaintiffs were estopped: 3 Ser. & R. 283; 10 Id. 144; 13 Id. 304; 7 Watts 168; 1 Greenleaf Ev. sec. 207; Id. 387-9. The estate of Moltz had been settled before the citation issued.
    It was contended that the fact that refunding bonds had not been taken by the administrators should not prejudice them, as they had evidence of the payment of the settlement between the ward and guardian: 4 Vesey 825; Id. 833. Though the decree of the Orphans’ Oourt as to the guardianship account is conclusive on that subject, it did not charge any personal liability on the administrators: 17 Ser. & R. 354.

      Watts and Miller, with whom was Parker, for defendants in error.
    — When the case between these parties was up at May Term, 1845, it was decided that the receipt was not conclusive against the ward, and that there was no evidence of supineness on the part of her or her husband, after discovering the mismanagement of the guardian. Reference was made to 2 Watts 494; 5 Watts 90; 4 Ser. & R. 115.
    It was said that the plaintiffs were not estopped was decided in the case reported in 10 Barr 532-3.
    July 25, 1853,
   The opinion of the Court, filed was delivered by

Knox, J.

— The decree of the Orphans’ Court is conclusive against the estate of Jacob Moltz. The question to be determined in this case is as to the personal liability of his administrators to pay the money found by the decree to be due to Oliver and wife.

The general rule is, that where administrators have assets in their hands sufficient to pay the debts of the decedent, they are personally responsible for the faithful application of such assets.

It is admitted that the sum distributed to the heirs of Jacob Moltz by the administrators, was greater than the amount decreed to be paid to Oliver and wife, and claimed in this suit, but it is alleged that such distribution is a defence to this claim, because it was made more than five years after the death of the intestate, upon the faith that he had fully accounted as guardian of Barbara, one of the plaintiffs. Relying upon the receipt in their possession, given in 1835, and the declaration made by Barbara to John Oldwine, and by him communicated before the distribution, that “ she had got all that'was coming to her,” the administrators divided the fund amongst themselves and their co-heirs, without taking refunding bonds.

The 4th section of the Act of 24th February, 1834, provides that, “ before any person shall be entitled to receive any share as a distributee, he shall give sufficient real or personal security to be approved by the Orphans’ Oourt, in such sum and form as the Oourt shall direct, with condition that if any debt or demand shall afterwards be recovered against the estate of the decedent, or otherwise be duly made to appear, he will refund the rateable part of such debt or demand, and of the costs and charges attending the recovery of the same.”

Had there been a compliance with this plain requisition of the law, there could have been no pretence against the right of the plaintiffs to enforce payment of their debt.

The heirs of Jacob Molfcz ‘had no right to the money, to the exclusion of his creditors, and the neglect of the personal representatives to perform a plain duty imposed by the statute, certainly should not be permitted to defeat 'the recovery of an adjudicated claim. The object of the statute in requiring refunding bonds, was to protect claims that might arise through mistaken or fraudulent settlements, as well as such that had not yet come to light.

The only safe line of conduct for executors or administrators to follow is, to obey all the requisitions of the law. .Governed by its directions, they will be protected by its shield. Disobeying its mandates, they must suffer its penalties.

It would be entirely unsafe, as a precedent, to hold that the written or verbal declaration of a party, that his debt was paid, would place him without the saving clause of this most beneficial statutory provision. This doctrine would punish a mistaken admission for the purpose of protecting a violation of legal duty.

The evidence was sufficient to fix the administrators with a devastavit, and the Court below were right in excluding the defendant’s offer, and directing a verdict for the plaintiff.

The lapse of time from the date of the receipt, in 1835, to the commencement of proceedings against the administrators, in 1844, was held by our predecessors to be no bar to a recovery against the administrators, and in our opinion it forms no defence in the present suit.

Judgment affirmed.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Smith versus Smith, Murphy, and Company.
    1. The intention of the buyer of goods, at the time of purchasing them, not to pay, together with his insolvency at the time and his knowledge of it not communicated to the seller, will not avoid the sale after the delivery of the property sold. To avoid the sale there must be artifice, intended and fitted to deceive, practised upon the vendee in procuring the property.
    2. The goods sold may be identified by one employed in the store of the sellers at the time of their purchase and who examined them having with him a bill of the goods; and his deposition to which the bill was annexed was evidence. It was not necessary that the book of original entries should have been produced.
    Error to the Common Pleas of Cumberland county.

    This was an action of trespass by Smith, Murphy & Co. against David Smith, former sheriff of Cumberland co., for levying and selling certain store goods under executions against Robert Snodgrass.
    It appeared that Snodgrass on the 7th and 8th April, 1852, purchased from the plaintiffs, who were merchants in Philadelphia, certain merchandise to the amount of $676.22, and for which he gave to them his note, dated April 7,1852, and payable six months after date. The goods were forwarded to Snodgrass and put into his store at Carlisle.
    On 3d May, 1852, Snodgrass executed an authority to confess a judgment in favor of John Noble for $1400, to indemnify him as surety for Snodgrass in two notes. On 7th May, 1852, judgment was entered in favor of Noble, and a fi. fa. was issued.
    On the same day judgment was confessed by Snodgrass in favor of Somers & Snodgrass, for $785.82, on which 'also a fi. fa. was issued. The two executions were received by the sheriff, Noble’s being first in order. On the next day and within a few days after-wards, other judgments were entered and fi.fas. issued. The sheriff levied on household furniture and store goods, and sold to the amount of $2387.81. Out of the proceeds he discharged Noble’s execution, and another part was paid on account of the execution of Somers & Snodgrass.
    Before the sheriff’s sale, an agent of Smith, Murphy & Co. notified the sheriff that they claimed the store goods, and in this case they claimed to recover on the allegation that the purchase by Snodgrass from them was’ fraudulent, and vested no title in him to the goods purchased.
    The deposition of W. E. Albright was offered on the part of the plaintiffs. It was to the effect that he was employed in the store of the plaintiffs at the time of the purchase by Snodgrass, and that the latter purchased the goods stated. That he, the witness, went to the store of Snodgrass, before the sale, with a bill of the goods, and identified a number of them as being in the custody of the sheriff. It was objected to his testimony that the deposition and the bill of the goods annexed was not competent evidence to establish a sale and delivery of the goods — that the plaintiffs’ book of original entries was the proper evidence for that purpose. It was admitted.
    The depositions of other persons were offered and received under objection. They referred to other purchases of goods made by Snodgrass from other persons, and of conversations with him — some of the conversations having taken place several months before the purchase from the plaintiffs.
    Points were submitted on each side. In reply to the first point submitted on part of plaintiffs, the Court charged that, If Snodgrass knew, when he made the purchase, that he was insolvent and unable to pay for the goods, and concealed from the plaintiffs his inability to pay, and thus obtained possession of the merchandise without consideration, and soon after failed and became insolvent, this would render the* contract fraudulent and void, and that the plaintiffs might rescind it and recover the goods or their value. In reply to defendant’s first point he charged, inter alia, that to render the purchase fraudulent, deceptive and false representations were not necessary, but, that the purchase must have been made with a design not to pay for the goods ; but the mere fact that, the purchaser was at the time insolvent, and did not know of his insolvency, would not render the contract void. He concluded by saying, but, if Snodgrass knowing, when he made the purchase, that he could not pay agreeably to the terms of his contract, that he was insolvent and wholly unable to pay, and purchased with the design and intention of getting the goods into his possession without paying for them, then such purchase would be fraudulent, and the plaintiffs may recover. .
    Error was assigned to the charge and to the admission of the depositions.
    -, for the plaintiff in error. — To enable a seller to rescind a contract for the sale of goods, it must be shown that deceptive assertions and false representations were made by the purchaser to induce the seller to part with his goods. The mere insolvency of the purchaser, though known to himself, and a design on his part not to pay for them, is not sufficient for the purpose: 1 Greenleaf’s Rep. 379, Cross v. Peters; 7 Taunton 59; 4 Greenleaf 245. The depositions referred to independent transactions and conversations having no reference to the claim of the plaintiffs.
    Miller, contra.
    — In order to prove fraud, it is not absolutely necessary to prove a false pretence or other direct artifice in respect to the individual purchase sought to be avoided: 3 Wharton 369, Mackinley v. McGregor; 3 Barr 21; 2 Jones 109. If there was a design to defraud, it mattered not whether the purchaser was solvent or insolvent.
    Gallagher, in reply.
    July 25,
   The opinion of the Court, filed was delivered by

Lowrie, J.

— The main question of this cause is raised by an objection to the charge of the court declaring, in substance, that a purchase of goods vests a voidable title in the vendee, if, at the time of'the purchase, he knew, and did not reveal the fact, that he -was unable to pay and intended not to do it, even though ,he made use of no deceptive assertions or false and fraudulent representations to induce the sale.

This would seem to have been the opinion of several judges, though not always clearly appearing: 1 B. & C. 514 ; 9 Id. 59 ; 8 Eng. C. L. R. 146; 17 Id. 330; 16 Conn. 71; 15 Mees. & W. 216. Our own case of Mackinley v. McGregor, 3 Whart. 370, would seem to be more important; but its influence for this case may be over-estimated, if we do not read it with reference to the extraordinary character of the cause, and to the fact that this question was not raised on the bill of exceptions. No question arose on the charge of the Court or the sufficiency of the evidence, for the case was submitted without a charge.

On the other hand, the contrary doctrine is implied in nearly all the cases on this subject, and is directly declared in some of them: 9 (Gill & Johns. 200; See 5 U. S. Dig. 29; 5 Taunt. 59 ; 1 Greenl. 386; See 2 Mason 240; 20 Eng. C. L. R. 236. The very question is raised, discussed, and thus decided in the case of Cross v. Peters, 1 Greenl. 386. But it seems still to be fairly open here to be decided according to its proper analogies and principles.

And here at the outset; we may reject, as only apparent analogies, some classes of cases that are distinguishable from the one under consideration. We reject the strictness required in the evidence of fraudulent intent in the criminal offence of false pretences ; because a man is chargeable civilly, but not criminally, for the fraud of his agent, and also for the legitimate consequences of a dishonest representation, whether he intended to defraud or not: 1 Met. 1; 3 Bar. & Ad. 114; 5 Eng. L. & E. Rep. 585; 14 State Rep. 142, We reject the principle that contracts will not be specifically enforced where it would be unconscionable to ask it; for this is confined to executory contracts. We reject those moral and legal doctrines which require the strictest honesty in all dealings where one party stands in a relation of special influence or confidence toward the other; for between buyer and seller the law recognises no such relation.

Reduced to its fewest words, the instruction is, that an intention not to pay, and conscious and unrevealed insolvency, make a purchase fraudulent, legally as well as morally. Is it so ?

An intention not to pay is dishonest, but it is not fraudulent: 9 Watts 34; 6 Wend. 81. The law provides an action on the contract as the remedy for just such dishonesty. And it is no more fraudulent to have such an intention at the time of the purchase than at the time when payment ought to be made. Such intention by itself is disregarded by the law, for it can be set aside by the usual contract remedies.

Nor does insolvency make a sale voidable after delivery: 6 Wend. 81; 2 Mason 240. If such were the law there is no calculating the suspicions and disputes which it would nourish. If it were so, the law of stoppage in transitu would be effectually abolished by one of a much more sweeping character. Nor does insolvency combined with an intention not to pay; for it is no more fraudulent in an insolvent, than in a perfectly solvent man, to have such an intention?

, The buyer’s knowledge of his insolvency would be quite as dangerous a test of fraud; for it might always be inferred from the fact of insolvency, and from the presumption that every man is acquainted with his own affairs. If the fact of buying implies an assertion of solvency, then every contract by a man in failing circumstances can be made fraudulent, for, to this implied assertion a jury might add the inference that he had either investigated his affairs and knew his insolvency, or had not, and knew his ignorance ; and then might follow, just as logically, the inference of intention not to pay: 14 State Rep. 142. Thus all the elements of fraud contained in the proposition under consideration may be inferred from the mere fact of a subsequent failure, and the contract is avoided for a constructive, rather than an actual fraud. If this were law, it would soon sweep away all the law of contracts, as to persons failing, and a new law of frauds would take its place. On every failure we should have a general scramble among vendors to get back their goods, and suits without number to establish their right by convicting the buyer of fraud. As to the fact of his not revealing his insolvency, some of the above considerations tend to answer it, and it is completely set aside by the principle that no man is under a legal obligation to make known his circumstances when he is buying goods, and no wise dealer would rely upon such representations as a general rule.

We do not forget the maxim apices juris non sunt jura, and think we do not strain the proposition in question by this analysis of it. Insolvency is a state of one’s affairs, and the consciousness of it and the intention not to pay are states of the mind,, and if these constitute fraud, then it may be made out without proof of a single overt fraudulent act. And if none of its elements consist of an overt act, then the law requires no evidence of an overt act to establish it.

We may get a perfectly clear view of this case, by so defining the question as to avoid the danger of an irrelevant conclusion. Where must we look for the fraud ? Not in 'the buyer’s intention merely. It must be a fraud upon the vendor, that is, a fraud acted out. We are seeking to avoid a contract because it was induced by fraud; that is, because there was some fraudulent act leading to it. The very statement of the prqposition excludes the act of purchase from being an element in the fraudulent conduct, and makes it a consequence of it. What then is left but the dishonest intention and the concealed insolvency ? and surely these did not induce the vendor to sell his goods. The error in the other view is in making the purchase a part of the fraud, instead of the object and consequence of it.

All the books concur in placing the avoidance of the contract on the ground of actual fraud practised in procuring it. And, as between persons standing upon an equal footing, and holding as to each other no relation of influence or trust, all authorities, when they speak clearly on the subject, regard it as essential to actual fraud that the intent to mislead should be acted out by false representations, contrivances, or artifices, or by conduct which reasonably involves a false representation.

The rule is proved by the exceptional cases, where special confidence is reposed and influence presumed. Here the law interferes though there be no actual fraud. But where people stand on an equality, the law does not indulge them in reposing such special trust, by helping them out of a difficulty against which they took no pains to guard themselves. It enforces their contracts, not their expectations. It does not hinder people from making foolish bargains, though it does protect them against positive deceit. The state might, in this matter, enlarge its jurisdiction: but its protection is never extended without contracting the limits of individual liberty.

Without extending the discussion on this question, we may say that the rule is the same here as in the case of a disappointment in the quality of the goods sold: 9 Watts 56; 7 State R. 297; 11 Id. 279; also Carson v. Baillie, (7 Harris 375); Wetherill v. Neilson (lately decided) (8 Harris 448); of a false representation of the character of another, 14 State R. 141; 6 Id. 316; or of any other false representation to induce a contract: 3 S. & R. 20; 15 State R. 428.

The right of reclamation after delivery exists only where an action of deceit would lie. As a man, cheated out of his money, may sue in assumpsit or deceit; so one, cheated out of personal property, may sue in trover or replevin, or deceit. The injuries and the remedies correspond in substance. But there must have been actual artifiee? intended and fitted to deceive, before a man can claim that he has been defrauded. We do not see how trespass can lie against the sheriff, seeing that at the time of the levy, the vendee had the possession, and a title voidable but not avoided.

There is a general error assigned to the admission of some half-dozen depositions, and we can regard it as an objection only to their general drift, which relates to the vendee’s circumstances and dealings, and his own declarations about them during about six months before the sale in question. We do not discover that there was any error in receiving them. They present no facts by which the seller could be misled; and their only value consists in the light they cast upon the general intentions of the buyer; and in thereby aiding in judging of the fraudulent character of the acts by which the seller was misled in this particular case. Such seems to have been the view taken of such evidence in Hawes v. Dingley, 17 Maine R. 341; Rowley v. Bigelow, 12 Pick. 307. Our own case of Mackinley v. McGregor stands out from all others in the fact that there appears to be a general holding out of false pretences, in order to impose upon all. Taking this view of this evidence, it would be useless, even though admitted, unless it should also appear that inducements, alleged to be fraudulent, were held out by the buyer to the seller directly or indirectly. And to save time in such cases, the Court might refuse to hear such evidence as the depositions objected to contain, until after the presentation of some evidence that the sale had been induced by the representations of the buyer. The purpose for which Albright’s deposition was offered was proper.

It seems that a vendor cannot, after a fraudulent purchase, pursue the goods into the bands of a bond fide purchaser from his vendee, or of one who has made advances or incurred liabilities on the faith of them: 6 Pick. 266; 12 Id. 312; 8 Cow. 238; 13 Wend. 572; 5 Eng. Law & Eq. Rep. 380; 3 Whart. 396; 9 Gill & Johns. 220; 3 W. & Ser. 479; or as against an attachment or execution for a debt subsequently contracted: 4 Greenleaf 348; 4 Mass. 407; 15 Id. 158; 16 Conn. 71. And it is probable that the Court would have so charged the jury, had. it been necessary to the ease of the defendant below; but it was not, and he cannot complain.

Judgment reversed and new trial awarded.

Knox, J., dissented.


author: Black, C. J.

text:
    Miller’s Appeal.
    1. Where an executor overpays the distributive share of a married woman out of personal estate to her husband, taking the husband’s agreement to refund, he is not entitled to reimburse himself or to be paid by his co-executor out of a separate and distinct fund subsequently accruing to the estate of the wife out of the sale of real estate sold by the executors, even though the wife died without leaving issue and her husband survive her.
    2. The said share of the wife is payable to the administrator of her estate; the interest of the husband therein is however liable to attachment.
    Appeal from the decree of the Orphans’ Court of York county.

    This was an appeal by William Miller, jun., administrator of the estate of Esther Miller, deceased, from the decree of the said Court, directing distribution of the proceeds of sale of certain real estate.
    Martin Weiser died in 1822, and letters testamentary were, on the 5th of November of the same year, granted to his sons, John and Martin J. Weiser, whom he had appointed executors. John never acted until after the death of Martin J. Weiser. On the 25th July, 1823, Martin J. Weiser, the acting executor of Martin Weiser, filed his administration account, the balance on which he distributed among the heirs. This balance consisted of personal
      estate, of which the testator made no disposition in his will, and which descended to his children in equal shares.
    On the 23d of October, 1823, William Miller, the husband of Esther Miller, who was one of the daughters and heirs of Martin Weiser, in consideration of the payment of $357.22 for his “dividend share of the personal estate, as far as the same is settled, of Martin Weiser, deceased,” executed a release to Martin J. Weiser, as acting executor: and covenanted to refund a proportionate part of any debt or demand that might' thereafter be recovered against the estate. The amount thus paid to the husband of Esther Miller, was more than her full share of the whole estate as reduced by a subsequently recovered debt. To November Term, 1832, a judgment was recovered against the estate of Martin Weiser, for $2214.26, on an administration bond, in which he was surety. The one-half of this judgment was paid by the other surety; and Martin J. Weiser paid the other half, $1107.13, for which he had not funds of the estate in hand. Some of the heirs refunded; but the husband of Esther Miller was insolvent and could not. Esther Miller died in 1829, leaving her husband and children to survive her. After the death of Martin J. Weiser, John Weiser, as surviving executor, received funds of .the estate, under' a provision of his will, viz :
    Item — “ I give unto my daughter Lydia two hundred dollars, in such way as my executors may think best; also, the square of ground in the borough of York during her life, and at her death the same to be sold by my executors, and the money to be divided in equal parts between her children, if she has any, otherwise be equally divided between my sons and daughters. I also give her one undivided half of my house and lot in Bottstown, in West Manchester township, York county, during her life; if no heirs, then the same be equally divided between all my sons and daughters, but said house and lot to remain in my executors’ care in trust for the use before mentioned: they may at any time dispose of the same and put the money at interest or purchase other property for the use and benefit aforesaid.”
    Lydia died without issue, leaving her husband surviving, and the money received by the surviving executor was from the sale of the square of ground, and of a mortgage in which the proceeds of the sale of the Bottstown property were invested. Said Esther died in 1829, before the death of Lydia, and before the Bottstown property was converted into money.

    The surviving executor of the will of Martin Weiser settled an account of this fund, on the 1st of June, 1848, exhibiting -a balance of $553.85. An auditor was appointed to distribute. He ,awarded the share of Esther to the executrix of the will of Martin J. Weiser.
    Exceptions were filed to the report of distribution, on behalf of the administrator of the estate of Esther Miller; and on the 3d of May, 1852, the Orphans’ Court confirmed the report of the auditor.
    On the part of the administrator of the estate of Esther Miller, deceased, exception was filed to the overruling of the exceptions to the auditor’s report, and in not awarding to him the share of Esther Miller in the fund for distribution.

      Weiser and Keesey, for appellant.
    — In "VVeiser’s Appeal, 6 Harris 423, another branch of this estate, it was decided that a release executed by the husband did not amount to a release of his wife’s share’ of the estate. The share of the wife in the real estate was not reduced into possession by her husband, and the administrator of her estate is entitled to her share of the fund: 10 Barr 373. The present fund for distribution is the proceeds of real estate converted after the death of Esther Miller, who died before the death of Lydia; and at the death of Esther her share of this fund was contingent, depending on the death of Lydia without issue.
    The question, however, is not who will be eventually entitled to the fund in question, but who is entitled to receive it from the executor ? It was contended that the administrator was the person to receive it. In the ease of Moyer’s Appeal, 4 Harris 405, the husband was both debtor and creditor — the fund was in his hands, and the claim merged. In this case the money is in the hands of another person.

      Campbell, for appellee.
    — Mrs. Miller died in 1829, and no debts exist against her estate. Under the Act of 1797, her husband became entitled to her whole personal estate; and if the administrator receive it, he would hold it in trust for the husband: 6 Johns. 117; 7 Johns. Ch. 247; 4 Harris 405, Moyer’s Appeal. But as the husband has received more from the estate than the share of his wife amounted to, he should not receive any further amount. But it is sufficient to show that the appellant is not entitled to the money in dispute.
    July 25,
   The opinion of the Court, filed was delivered by

Black, C. J.

— This case is not distinguishable in principle from Weiser’s Appeal, (6 Harris 423.) It arises on the same will, and the transaction out of which it grew is precisely similar. It was there decided that an executor who overpays the distributive share of a married woman to her husband, taking the husband’s refunding bond to secure himself, is not entitled to pay himself, or to be paid by his co-executor out of a separate and distinct fund subsequently accruing to the wife, but which was not then demandable.

Did the husband receive or settle for his wife’s contingent interest in the real estate, when be was paid her share of the personal property ? Undoubtedly not. Assuming that he might have sold or released to the executors her claim in the land, or pledged it to make good his bond, it is enough to say that he did not do so. Her interest then was never devested during her life. She died the owner of it in law and equity. The executor is a creditor of the husband for the sum overpaid to him on the personal fund. But the debt is a personal one. It is not a lien on the wife’s land.

In the present ease the husband is living, and the wife is dead. The appellee is her administrator. But this can make no possible difference. If she would have been entitled to it living, her personal representative has just as good a right. Suppose it to be true that her husband is the sole distributee, and that he may ultimately receive this fund, still that is no reason why the administrator should not receive it in the first instance. The representative of the executor, who claims it over the head of Mrs. Miller’s representative, is but a personal creditor of Miller. Against her he has no claim; if he has one against him, let him enforce it. The law furnishes him with effective machinery for that purpose. He can attach it in the hands of the administrator, and he, or some other creditor as honest as himself, may have done so already for aught we know. Besides, the wife may have creditors who are entitled to he paid out of this fund, in preference to her husband or his creditors.

Judgment affirmed.

Lewis, J., dissented.


author: Lewis, J.

text:
    Beal versus Stehley.
    1. A testates'devised a house and half lot of ground to her daughter Barbara for life, and directed that after her decease the property be sold and the money thereout arising 'be equally divided to and amongst her other three daughters, “ and their heirs and assigns for ever, share and share alike, or to the survivors of them.”
    After the death of the tenant for life, two of the sisters conveyed their interest in the premises to the husband of the other legatee:
    It was Held, that such conveyance was an election by the two devisees who conveyed to take the property as land; and that the acceptance of the conveyance by the husband implied his consent to it according to its terms and an election by him to take his wife’s portion as land. That he thus became the owner in fee of two-thirds of the premises, and tenant for life of the other third in right of his wife.
    2. The husband, after the conveyance, had an interest in the premises which was the subject of a sheriff’s sale, and his wife was not bound to give notice at such sale of her claim.

      3. The plaintiff, one of the legatees, being a feme covert at the time her right to the legacy accrued, her claim was not barred during the coverture by the statute of limitations.
    4. A release for a different lot than the one in dispute was offered in evidence, containing an accurate description of the lot described therein, with a different boundary from the one in question and on a different square though fronting on the same street. It was offered to show by parol evidence that the releasee was then in possession of the premises in dispute, and never claimed any title to the lot described in the release; that the releasor had not at its execution any interest in the lot so described, and that the release was found amongst papers of the releasee after his death. It was Held that such evidence, if received, would not have been sufficient to convert the instrument into a release of the right of the plaintiff, one of the releasors, to the lot in dispute, and that the release and parol evidence were therefore properly rejected.
    Error to the Common Pleas of Dauphin county.

    This was an action of ejectment to April Term, 1851, by Sarah Stehley v. Abbey Beal and William Sayford, to recover the one undivided third part of a house and part of lot No. 163, situate on the south side of Market street, in Harrisburg.
    The lot was formerly owned by Charlotte Bitner, the mother of Sarah Stehley, who, by her will, dated 26th December, 1802, proved on the 13th July, 1811, devised the house and lot to her daughter Barbara during life, and after her death it was directed to be sold, and the money thereout arising to be equally divided to and amongst her other three daughters, Polly, Louisa, and Sarah (the plaintiff), “ and to their heirs and assigns for ever, share and share alike, or to the survivors of them.” She appointed executors, who renounced, and letters of administration with the will annexed were granted to Geo. Stehley, the husband of Sarah Stehley, the plaintiff, and another, in 1811. George Stehley became married to Sarah, the plaintiff, in or about the year 1808. Barbara died about the year 1817; and it was admitted on the trial “ that Polly and Louisa had sold out their interest in the house and lot to George Stehley previous to the sheriff’s sale in 1820, and that Barbara, their sister, died before conveyance to Stehley.”
    Stehley and wife lived on the property for some time, whether during the lifetime of Charlotte or Barbara, or afterwards, did not with certainty appear.
    On 1st July, 1818, a judgment was obtained by the Harrisburg Bank against George Stehley, and, on the same day, it obtained one against Seerer, as his endorser; and the house and lot in dispute was levied on as the property of Stehley, and sold by the sheriff in December, 1820, to Christopher Seerer, for three hundred dollars.
    On 5th April, 1824, Stehley and wife executed a release to Seerer, the wife of Stehley making a separate acknowledgment, and delivered it to Seerer. It described a part of lot No. 159, lying on the same street, and on the same side of the street, and within two hundred feet of the lot No. 163, partly in dispute, and which lot No. 159 had belonged to George Stehley, but had been sold by the sheriff as his property, in 1819, to George Pearson. The'release was found among Seerer’s papers, after his death, in 1826, and the defendants offered to prove that Seerer never owned or claimed any part of lot No. 159 ; but that he took possession of lot No. 163, part of which was in dispute. Seerer leased the house and lot No. 163 for the years 1825 and 1826.
    In 1834, the widow of Seerer having had from the time of his death peaceable possession of the premises in dispute in this case, sold the same, under a power in his will, to Mrs. Lindemuth, who by her will proved in September, 1845, directed her executor to sell the same; and on 1st April, 1847, he sold the same to Abbey Beal, one of the defendants. About the year 1850 George Stehley died; and to April term, 1851, his widow brought this action. Erom December, 1820, when Christopher Seerer obtained the sheriff’s deed, the premises in dispute were in the peaceable possession of Seerer and those claiming under him, until this suit was brought. Valuable improvements had been made upon the lot since the sale by the widow of Seerer. '
    On the trial it was alleged, on the part of the plaintiff, that her interest in the lot was real estate. On the part of the defendants, it was alleged that, under the will of Charlotte Bitner, it was personal estate; and that George Stehley, by taking possession of it, or by becoming administrator of the estate of Seerer, became the owner of it. It was contended that in order to recover, the plaintiff must show an election to take it as real estate, and that such election had not been proved.
    It was also contended, on their part, that the release by Stehley and wife to Seerer, and found amongst Seerer’s papers, was intended to apply to the property, part of which was in dispute in this action.
    The release referred to was offered in evidence on the part of the defendants, but it was rejected.
    The case was tried before Pearson, J.—
    He observed to the jury that “ the defendants claim to be protected in their possession by the statute of limitations; also that they are bond fide purchasers without notice, that the plaintiff failed to give notice of her title or claim at the various judicial sales which took place ; and that she has not shown any title to the property, but that her mother merely bequeathed her an interest in a sum of money, and devised her no part of the house and lot: that George Stehley the husband, as administrator with the will annexed, held the fee in this property, and was entitled to the money legacy in right of his wife; and therefore both the legal title and equitable interest were vested in him, and were divested by the sheriff’s sale.”
    He charged that the statute of limitations was not a bar to the plaintiff’s claim. She was a feme covert at the time of her mother’s death, and remained under coverture until about a year before this suit was brought. As a feme covert she was not bound to give notice of her claim to this estate, when the interest of her husband was about to be sold by the sheriff.” He observed that there was no evidence that she was present at the sale, or even •knew it was about to be made; and that the will under which she claimed was on record. “ The defendants claim under the same will, and are bound to take notice of its contents. The sheriff’s sale, as we understand it, passed nothing but George Stehley’s life estate, in the third part of this house and lot, which belonged to his wife, and the fee in the two-thirds which he had purchased from her sisters.”
    As to the claim of title he charged: “ By the common law there is a material difference between a devise of land to executors to sell, and a mere direction to make sale of the land, and pay over the proceeds to the legatees. In the former case the fee vests in the executor, who is the proper person to protect the possession,' or punish trespassers. In the latter, the legal title descends to and vests in the heir-at-law, until the sale is made; but in either case, it seems to be well settled that the devisees, if more than one, or the sole devisee, for whose use and benefit the property is held, or directed to be sold, may elect to take the land instead of money, and thus prevent a sale. It requires no conveyance from the executor or heir-at-law to vest the title in the legatee, but it requires an unequivocal act, showing an election by all the parties in interest, that the bequest shall remain land, instead of being converted into money. It is quite probable that the Act of the 12th March, 1800, in force when this will was made, has destroyed the distinction between a bequest to executors to sell and a mere power; yet there is no change in the law as to the right of election on the part of the legatee. That remains as before the Act. When more than one person is interested in the money to be ■raised by the sale, it requires the united assent of all the parties in interest that the property shall remain in statu quo instead of being sold. Any legatee can require the executor to carry the ■will into full effect. The law does not require a united or joint action,' the object being merely to secure the interest of all parties; but it requires an unequivocal act by all. In the present case, two of the legatees, Polly and Louisa, conveyed their interest to George Stehley, prior to the year 1820; he was also entitled to elect for his wife, or he and his Avife could have joined in making the election. If her part had been converted into money, by the law as it then stood her husband could have claimed it as his own. If he elected to take the land, he would be tenant by the curtesy of her estate in it. The defendants concede that prior to 1820, George Stehley took possession of the house and lot, and held it in 1820, when it was levied on; and hence they argue that notice should have been given by the wife of her claim. They further contend that the legacy was merged in the land, and as the husband was entitled to the one, he had a right to take the other. That if he elected to take the land, it became his absolutely, as the money would have been his. I am of opinion that if the husband had desired to take this interest absolutely as money, he should have proceeded by sale to convert the land into money, he was the proper person to make the sale under the will. If a husband does not reduce his wife’s legacies or other choses in action into possession, during his lifetime, she takes it by survivorship. If he elects to take land instead of money, into which it is ordered to be converted, he takes it with the incidents of land; for although when accepted by a legatee instead of money, it is held as a new acquisition, yet such is the case in regard to all land taken by devisees; it is held under the will by purchase as a new acquisition ; yet it will scarcely be pretended that if a husband takes possession of land expressly devised to his wife, he holds it in any other way than as tenant by the curtesy. When taken in lieu of money, he holds it in the same way. Although the title is vested in the executors, and the legatees have but an equity — a right to the money — yet no conveyance is required to make good their title; it vests in them by the election, after which the power of the executor to sell is gone; his care and charge over the land is superseded, and should he attempt to sell, a Court of Chancery, and probably the Orphans’ Court, -would restrain him. It has been repeatedly held that this election need not be made a matter of record, nor reduced to writing, but may be made in pais, and established by parol; may be proved by direct evidence, or inferred from circumstances. We have, in the present case, no direct evidence of election on part of the plaintiff, but we have the most unequivocal evidence on behalf of their sisters. They sold their interest as land. It has been held that even leasing it for a year is sufficient evidence of an election. Those under whom the defendants claim, lived on this property as- land (for a money legacy, or interest under a will before election, is not subject to levy), they sold it as land, and now, after having passed it from one to another as such, for over thirty years, they are estopped from denying it. I consider that there are sufficient circumstances in this case to justify you in inferring that George Stehley took his wife’s interest under this will as land, and not as a money legacy; and being land in possession, lie was entitled to hold it diming life as tenant by the curtesy.”
    A difficulty has been suggested, that the plaintiff has no title or estate in this case; that the land is not given, but a mere money legacy, and that an ejectment will’ not lie for a sum of money. In England, where an ejectment must be supported at law on a legal title, and the party is driven into chancery to enforce an equity, such a legatee is treated as the owner after election. In Pennsylvania, a mere equitable title or claim may be enforced in ejectment. Although the will of Charlotte Bitner bequeaths money, yet it uses words of inheritance where it directs the land to be sold and the money to be divided between her three daughters, “ and their heirs and assigns for evershowing that the testator intended to give more than a mere ordinary money legacy. This charge we consider sufficiently answers all the defendant’s points; and where not specifically answered, they may be considered as negatived, so far as they apply to the facts of the case.
    January 27, 1853, verdict for plaintiff.
    Various errors were assigned: — 1. That the question whether an election was made, was not submitted to the jury. The third was to the statement in the charge, that “ Polly and Louisa had sold their interest as land,” it being alleged that there was no such evidence given, and that the admission on part of defendant was merely, that “ Polly and Louisa had sold their interest in this house and lot to George Stehley.” 4. That the Court erred in saying, that there were sufficient circumstances to justify the jury in inferring that George Stehley took his wife’s interest as land. 5. In the instruction, that it appeared from the terms used in the will, “ that the testator intended to give more than a mere legacy,” it being alleged that no election had been proved, and that words of inheritance affixed to a money legacy, were a nullity. The 7th, 8th, 9th, 10th, 11th, and 12th assignments were, that the Court erred in negativing the points from first-to eighth submitted on the part of the defendant. The first point was to the effect, that the legatees took under the will merely a money interest. The second was, when land is devised to be sold, and the proceeds paid to legatees, that in order to take the land instead of money, all the legatees must unite in the election, and that such election had not been proved. The third was, that the interest of the wife was a mere chose. in action, which the husband might reduce into possession: that if he made an election, and paid off the other legatees, he became invested with the fee: that the legacy of his wife being charged on his land, it merged in the land. The fourth related to want of notice by Mrs. Stehley. The fifth was, that as possession had been had for more than thirty years, the plaintiff was barred. The seventh, that the wife’s interest, if not reduced into possession by her husband, was a charge or lien on the land, and was discharged by the sheriff’s sale. Eighth, That if an election took place, .Stehley either elected in his own right by converting his wife’s legacy into land, and thus became seised of the fee; or otherwise a secret equity existed, of which notice should have been given at the sheriff’s sale.
    The thirteenth assignment was to the rejection of the release by Stehley and wife to Seerer, for lot No. 159, on Market street, to be followed by proof that Seerer never claimed any title to the lot described in that release, and was at the time in actual possession of lot 163 under the sheriff’s deed; and also offered to show that Stehley and wife, in April, 1824, when the release was executed, had no interest in lot No. 159; and also, that the release was found among the papers of Seerer and others, who held the lot No. 163. This was offered for the purpose of showing a misdescription in the release of lot No. 163, and that the release was intended to apply to that lot.

      Abides and Roberts, for plaintiffs in error.

      Berry hill and McQormide, for defendant in error.
    July 25, 1853,
   The opinion of the Court, filed was delivered by

Lewis, J.

— By the will of Charlotte Bitner (giving the premises in dispute to her daughter Barbara for life, and after her death directing it “to be sold, and the money thereout arising to be equally divided to and amongst her other three daughters, Polly, Louisa, and Sarah (the plaintiff), and to their heirs and assigns for ever, share and share alike, or to the survivors of them,”) the three daughters, upon the death of their sister Barbara, became entitled to their legacies as money. They had, respectively, an interest in the proceeds of the sale; but they had no interest or estate in the property as land. By the marriage of Sarah, the plaintiff, with George Stehley, her husband became entitled to reduce her chose in action into possession for his own use. As a necessary incident of this right to the money, he had the power to waive it, by any act indicative of his purpose, or even by his omission to reduce it into possession. Until he reduced it into ■possession, or did some act which divested her of her interest in the money, her right of survivorship remained. Representing her power and interests, in all matters concerning her personal estate, the right of electing to take the land, instead of the money, resided in him. Her coverture prevented her from acting, in regard to her dioses in action, and the law therefore clothed him with the accessary power over them. His own absolute right to them depended upon the manner in which he exercised that power. If he chose to reduce them into possession he became the absolute . owner. If, on the other hand, he chose to take the land, instead of the proceeds given by the will, it was not a reduction of the ' money into possession. Nor was it a conveyance of the land to .. him in fee. In such cases the act .of election has no greater effect than the transfer of the land to the.person entitled to its proceeds. The transfér of it to any other person, by a mere act in pais, without writing, is prohibited by the statute of frauds and perjuries. It would also be contrary to the principle of equity which raises a resulting trust for the benefit of the person who pays the consideration. The legacy remaining untouched by the husband, continued essentially the property of the wife, and his election to take the land was nothing more than a substitution of it for the proceeds. The land, therefore, became her estate in fee, and by virtue of his relation to its owner, the husband became entitled to a life estate in it. Was there then such an election as to produce this effect? It is conceded that neither of the three legatees entitled to the proceeds could separately, without the consent of the others, make a valid election. But it is admitted on the record that Polly and Louisa had sold out their interest in the house and lot to George Stehley, previous to the sheriff’s sale in 1820, and that Barbara, their sister, died before the conveyance to Stehley.” This was understood by the learned judge, in the Court below, to be an admission that Polly and Louisa had conveyed their interests, as land, to Stehley. In this we think he was correct. When they spoke' of a sale and “ conveyance” of “ their interest in the house and lot,” it was reasonable to understand them as meaning that they had conveyed by deed their estate in the land, and not merely that they had transferred or assigned their interest in the proceeds of sale. It is not likely that any mistake took place in regard to the facts admitted. If any misapprehension occurred on the trial, it was the business of the party likely to be injured by it, to make immediate application to the Court below for leave to withdraw the admission, and to state it with more precision. As this was not done, nothing remained for the Court but to decide upon the legal effect of the facts thus admitted upon the record. In every conveyance there ’must be two parties — one to grant and the other to receive. When Polly and Louisa conveyed their estate in the premises to Stehley, as land, it was an election, so far as they were concerned, to take the land instead of money. And when Stehley accepted of the conveyance, the law implies his consent to its full operation, according to its terms. As it could not thus operate without his consent to take land in right of his wife for her share, his election to do so is implied by the act of receiving the conveyance from the other two legatees: Smith v. Starr, 3 Wharton 65. The legal effect of the conveyance by two of the legatees, to the husband of the other, was the conversion of the money legacies into real estate, by means of the election by all the parties entitled to the proceeds, to take the land instead of the money; and Stehley thenceforth became the owner, in fee simple, of the two-thirds of the premises purchased by him from Polly and Louisa, and tenant for life of the other one-third, in right of his wife. There was no evidence to impair the effect of these facts, or to repel the conclusions of law which resulted from them. On the contrary, the possession of the property by Stehley — its sale by the sheriff as his property--the application of the proceeds to the payment of his debts without opposition from him, and the long possession of the purchaser and those who claimed under him, did much to confirm them.

Stehley had an interest in the premises which was the subject of a sheriff’s sale for the payment of his debts. The origin of his title, and the extent of his interest, were matters which fell within the range of the purchaser’s inquiries. He could not look at one without seeing the other. He was bound to know both. There is no evidence that he purchased more than Stehley’s title, or that Mrs. Stehley had any knowledge of his purchase of even this. She was therefore under no necessity to give notice of her claim.

As the plaintiff was a feme covert at the time the right to the legacy accrued, and remained under coverture until about a year before this suit was brought, there was no ground for holding that her title was barred by the statute of limitations. Her right of action for the land accrued upon the death of her husband, and the ejectment was brought in due time afterwards.

The plaintiff’s title being thus fully established, and there being no sufficient defence to the action, the Court below was in duty bound to direct a verdict for the plaintiff. This was done, and the defendant below has suffered no injury from whatever additional instructions may have been given.

The release of 5th April, 1824, was not for the premises in dispute. It contained an accurate description of a lot located in a different square, calling for different boundaries, and bearing a different number. The evidence proposed for the purpose of converting it into a release of the plaintiff’s right to the premises in dispute was not sufficient for the purpose. It was therefore properly rejected.

The plaintiffs in error have no just cause of complaint, and the judgment is therefore to be affirmed.

Judgment affirmed.


text:
    Commonwealth versus Porter.
    1. In appealing from the settlement by the auditor-general and state treasurer of the account of a county treasurer or other public officer under the Act of 1811, specification of the objections to the settlement should be made.
    2. A specification of objection to the principal sums charged against the accountant does not include an objection to the interest charged from the exhibition of the account till its settlement by the accountant officers, and which is included in the balance decreed against the officer.
    . 3. A county treasurer who fails to pay to the Commonwealth the amount due for state tax received by him, is chargeable with interest; and the omission of the accountant officers to settle his account, will not relieve the treasurer from such charge. Case of Porter v. The Oomth., 5 Harris 14-19, overruled.
    4. The direction in the 35th section of the Act of 1811, that all balances due the Commonwealth shall bear interest from three months after the date of the settlement, does not prevent the charge of interest as part of the settlement on moneys wrongfully withheld.
    5. The 8th section of the Act of 25th March, 1831, requiring the treasurer of each county to pay “ on settlement of his accounts,” if in force, does not authorize him to retain the money due the Commonwealth till his account is settled. It is not inconsistent with the Act of 15th April, 1834, which requires payment twice in each year.
    Error to the Common Pleas of Dauphin county.

    This case in the Common Pleas was an appeal by James M. Porter, from the settlement made by the Auditor-General and State Treasurer, of his account as county treasurer for Northampton county, for the year 1835. The accountant made a return to the auditor-general, on the 10th December, 1835, of the taxes collected by him as treasurer of Northampton county, but no settlement of his account was made by the accounting officers till the' 1st May, 1846, when an account was settled against him, showing a balance in his hands in 1835, according to his return, of $2396.43. To this sum the accounting officers added ten years’ interest, amounting to $1437.85, making the aggregate $3834.28 due the Commonwealth on May 1, 1846. From this settlement this appeal was taken, and the question for decision by the Supreme Court was whether the Commonwealth was entitled to recover interest on the money in the hands of the defendant, before the settlement of his account on the 1st May, 1846.
    In the account settled by the auditor-general and state treasurer, he was charged with state tax on real and personal property for the years 1832-3-4-5, in all amounting to He was credited with commissions with amount standing to his credit, &c.,
    Ten years’ interest was added
    $8281.59. $79.42 5805.74 5885.16 2396.43 1437.85

      From the settlement the accountant appealed. A statement of the specifications filed, appears in the former report of this case in 5 Harris 14-15, neither of them specifying the charge of interest.

    The facts of the case were substantially the same as those in' evidence on the former trial. On that trial Pearson, J., instructed the jury that the accountant officers had rightly charged interest in settling the account. That the settlement contemplated by thei Act of 1811, relative to public accounts, consisted in a proper! adjustment of the principal due, and a determination of what in-j terest should justly be charged. He expressed the opinion that the charge of interest should have been specified in the course of taking the appeal; but as the want of such specification was not noticed in the opinion given in the case reported, he held on this trial that the specification of the charge of interest was not essential ; and in accordance, as he considered, with that opinion, he instructed the jury that the charge of interest prior to the settlement must be disallowed.

    Yerdict was rendered accordingly.
    It was assigned for error :—
    1. The Court of Common Pleas erred in charging the jury that the omission of an objection to the charge of interest, in the specifications filed in the auditor-general’s office accompanying the appeal by the defendant, would not bar or prevent his resistance to this charge on the trial.
    2. In deciding that the Commonwealth could not recover interest from the defendant, for the ten years previous to the settlement of his account by the accounting officers.

      McCormick, for the Commonwealth.
    — The case when up before, was taken up by the accountant, and the question as to the specification of objection to the interest charged, did not then arise. The 11th section of the Act of 80th March, 1811, relative to public accounts, requires specifications of objections to the settlement complained of to be filed. The Act is imperative: Commonwealth v. Porter, 1 Penna. Rep. 252. Under the Act of 1811, a settlement of accounts with a public officer by the auditor-general is conclusive, even though on the face of the account it is apparent that an allowance authorized by Act of Assembly has not been made: 6 Barr 124, Hutchinson v. The Commonwealth.
    That interest was chargeable reference was made to 3 W. & Ser. 271; 6 Bin. 169; 6 Barr 290. Reference was made to the 40th section of the Act of 15th April, 1834, providing that county treasurers shall, in July and December of each year, deposit in a bank to he designated by the state treasurer, the amount of moneys received by them for the use of the Commonwealth, during the preceding half year; and in section 42 the compensation is prescribed, with the proviso that no compensation shall be allowed, unless the amount due to the Commonwealth be paid over within the time specified, &c. The failure to pay renders the defendant chargeable with interest.
    It was stated that a legislative direction on this subject, exists in the Act of 21st April, 1846 (Purd. 313), which provides that in all suits against defaulting officers, “interest shall be allowed and computed in favor of the Commonwealth from the time the public money sued for came to the hands, or should have been in the hands of such officers.” The delay of the auditor-general for ten years before settling this account, cannot affect the Commonwealth. It is well settled that the right of the Commonwealth cannot be lost by the laches of its agents : Haehnlen v. The Commonwealth, 1 Harris 617; United States v. Kirkpatrick, 9 Wheat. 720.

      H. Alriehs, for the defendant in error.
    — It was alleged that the question of interest was decided in favor of the accountant when the case was up before. That the decision was predicated on the construction given to the 35th section of the Act of 30th March, 1811, which provides that all balances due the Commonwealth on accounts settled agreeably to the Act shall bear interest from three months after the date of the settlement until paid. The Act of 25th March, 1831, assessing a tax on personal property, in section 8, directs the county treasurers to furnish the auditor-general a statement of the amount received by them for the Commonwealth, in pursuance of that Act; and to settle the account with the auditor-general, in the same manner as public accounts are now settled. And it shall also be the duty of the treasurer of each county, on settlement of his accounts as aforesaid, to pay unto the state treasurer the amount so received by him, for which the treasurer of the county shall be allowed a commission of one per cent.,” &c.: P. L. 208. It was said that this section was not repealed by the Act of 1834, referred to on part of the Commonwealth. The case'of The Commonwealth v. The Easton Bank, 10 Barr 442-4, was referred to.
    As to the exception as to specification, it was stated that the question was what sum the Commonwealth was entitled to. Specification was made to the principal sum, and it was said that interest was an incident to the principal sum due.
    July 25,
   The opinion of the Court, filed was delivered by

Lowrie, J.

— This case came up and was decided here two years ago; 17 State Rep. 14; and it now comes up again and we are asked to reconsider that decision. We have done so, and are fully convinced that it is our duty to say that it cannot be maintained without serious injury to well settled .principles.

Under our laws the auditor-general, aided by the state treasurer, and, when necessary, by the governor, constitutes the tribunal that is to examine, adjust, and decide upon all claims of the state against its revenue officers, subject to an appeal to the general judiciary. But no appeal is allowed without a specification of the objections to the decision complained of. In this case the accountant filed a specification of objections to the priricipal items of the account as stated by the auditor-general, but none to the item of interest. How then could the question of interest be raised on the appeal ?

That it could not be, has been several times directly decided: 1 Penna. Rep. 252; 6 State Rep. 124; and this is one of the most plain and common principles of administrative law: 7 Ser. R. 276; 2 State Rep. 153; 6 Id. 483; 1 W. & Ser. 480; 5 Id. 385. It is the rule always practised on in relation to reports of auditors, masters, and arbitrators.

It is said, however, that the objection to the charge of interest was unnecessary, because the objection to the principal includes it as an incident. True enough, so far as it is an incident, and therefore, if’ the objections to the principal or part of it had prevailed, there would have been a proportional deduction of the interest. But then on the other hand, and on the same principle, an unavailing objection to the substance could not affect its shadow. And when we have both shadow and substance, he that objects only to the substance, assumes that the two are inseparable. It is only by a special objection that the mind of the Court can be led to inquire whether, the principal being proved or admitted, the charge of interest is improper.

Besides this, the question of the liability of a revenue officer for interest was erroneously decided. It tends only to confusion in such a case, to talk of the faults of other officers, or the hardship of the case, for the question of interest does not arise until it is found that the accountant is in default. This case is that of an officer whose duty is merely to receive and pay over to the state treasurer part of the state revenue, and he has failed in paying over. Must he pay interest for his negligence ? On mere common law principles unquestionably he must: 4 Dall. 286; 6 Binney 266; 6 State Rep. 290 ; 1 Ser. & R. 179; 9 Id. 422.

In such' an inquiry, it is always relevant to notice the functions of the officer. Here it is a state revenue officer, a county treasurer, who receives money from collectors and others, and is required by law to pay over in July and December all moneys in his hands: Act of 15 April, 1834, § 40, P. L. 544. Without this law, his duty as to paying over would have been no less ; for it is a necessarily implied duty of such an officer to pay over the revenue as fast as sums, of a reasonable amount for remittance, come to his hands ; and a public, as well as a private, agent is chargeable with interest for a breach of such a duty. It is just like the case of an agent withholding his principal’s money after demand; for, when the place of payment is fixed, the duty of such a revenue officer is itself equivalent to a continual demand. It is different with trustees and officers, whose, duty is to receive and disburse a fund; because their functions are different. They hold until the proper time or opportunity for disbursing or administering.

It is no answer to this that the auditor-general for a long time neglected to decide upon the account, for it is settled by numerous decisions, beginning with our own ease of The Commonwealth v. Wolbert, 6 Binn. 292, that the- state is not chargeable with the negligence of its officers in such cases, even as against sureties: 13 State Rep. 6-17; 9 Wheat. 736; 11 Id. 188; 12 Id. 509; 1 Peters 325; 3 Mason 446; 4 Wend. 570; 13 Johns. 283; 19 Id. 58; and even though there be long delay after the debtor has called for a settlement: 5 Peters 293.

On the principles of common justice, how can it be otherwise ? There is no duty more plainly implied and written than that of a county treasurer to pay; and how can he excuse his neglect, by pleading that of his superior officer to call on him 1 His is the first fault, and it is not forgiven because of a similar neglect of another. The auditor-general did not settle the account; and what of that ? It was no less the duty of the county treasurer to pay; and, if he kept his accounts as he ought to have done, he knew exactly what to pay. His duty was to the state, and not to the auditor-general, and he ought to have performed it and then called for a settlement. The state has been guilty of no negligence, for it has clearly defined the duty of both officers. One of them, who has neglected his duty, has no right to excuse himself on the ground of the negligence of the other.

It seems to be supposed that the state is not entitled to interest, until three months after the auditor-general has stated the account, because the law of 1811, section 35, requires that it shall then bear interest; and it is thought that until then, the only penalty for neglect is loss of commissions. But this does not exclude the direction of the first section, that the account “ shall be examined and adjusted by the auditor-general, according to law and equity.” This act makes the auditor-general the primary judicial tribunal in all claims by the state against its revenue agents, and, in adjusting the accounts by law and equity, he must charge interest as part of the settlement whenever any of the money is wrongfully withheld. The declaration, that the balance found due shall bear interest after three months, is the mere repetition with a little indulgence, of the Act of 1700, giving interest on all judgments.

Suppose the Act of 25th March, 1831, section 8, requiring the county treasurer to pay “ on the settlement of his accounts,” be still in force; it does not authorize him to keep the money till it is settled; and it is not inconsistent with the Act of 1834,' which requires him to pay promptly as he receives. The Act of 21st April, 1846, section 9, P. L. 415, does not, as an Act, apply to this case; hut it declares the true rule as it stood before; that, when accounting officers allow suit to he brought, they shall be charged with interest from the time the public moneys were or ought to have been received by them. It is true that under the Act of 1834, the defaulting officer loses his commissions; but this is the case with all such agents, according to common law principles. They pay interest for the wrongful withholding, and lose the reward ^belonging to the office which they have unfaithfully performed. In this case we must presume that the accountant presented to the auditor-general some equitable grounds for indulgence ; for his commissions were allowed, and he was not charged full interest. We need not. notice the case of The Bank of Easton v. Commonwealth, 10 State Rep. 442, further than to say that it was not a case of money withheld by a receiving officer: but a controversy as to the propriety of a tax.

Judgment reversed and a new trial awarded.


author: Woodward, J.

text:
    Chidsey versus Porter.
    1. Where a clerk has the general agency of a store belonging to two partners, and has been accustomed to purchase goods for the store and to give due-bills therefor, with the knowledge of the partners or of one of them, he may on making a purchase of goods take up due-bills previously given by him for purchases previously made, and give a noto for the whole of the purchases.
    2. If a person suffers his name to be held out to the public as a partner in a store, bills for store transactions made out in the store and rendered in the name of the alleged firm, are competent evidence as to the existence of the partnership.
    3. Though in the declaration a count existed for goods sold and delivered, and another on certain notes or due-bills, but the only breach assigned was the non-payment of the notes, there could be no recovery for the goods purchased and which formed the consideration of the notes, distinct from or independent of the notes.
    Error to the Common Pleas of Dauphin county.,

    This was an action of assumpsit by R. S. Chidsey v. Samuel Holland and David R. Porter, late in business in the name of Holland & Porter. Porter alone was summoned. The declaration contained several counts: 1. Eor $200, the price of certain tin-ware: 2. For money paid: 3. For money received: 4. For money due on an account stated: 5, and last, For several due-hills, viz.; one for $14.84, dated 14th August, 1847 ; one for $109.55, dated 4th March, 1848; one for $17.28, dated 22d Sept. 1842. The breach assigned was the non-payment of thedue-bills.
    On the trial, in order to prove a partnership between Holland and Porter, the depostion of James Espy was read. In it he stated that, on the 12th September, 1848, or about that time he rendered a bill made out against Holland & Porter to them at their office at Nanticoke, in Luzerne county; Holland andPorter andWm. Stewart were present at the time; that both Holland and Porter looked at the bill; that Holland told him that morning to bring his bill to the office; that he recollected seeing Porter at Nanticoke twice before that time; that the sign over the store door at Nanticoke was Holland & Porter.
    He further stated, that two papers attached to the deposition were got at the same time at the store of Holland & Porter, and that they were made out as his accounts at the store. They purported to be statements in account with Holland $ Porter.

    On the part of the plaintiff the said two accounts were offered : they were objected to, and the Court observed, that if it had been proved that the accounts had been shown to Porter, he would have received them; but no such evidence being given, the accounts were rejected.
    B. S. Smith and other witnesses were examined.
    . Smith testified, inter alia, that he had been a clerk in the store-of Holland and Porter — that he had charge of the store — that he had the chief management of it. That they dealt with Chidsey’s pedlars — bought tin ware for the store. He further said it was his practice to give due bills for goods bought of pedlars — that he kept the books.
    He further said that Porter never specially authorized him to give due bills; that during the time he was there, he never received any directions or instructions from Porter concerning the business of the store; that at the time Porter was there, he did not, to his knowledge, take any particular interest in the transactions of the store.
    Peabson, J., referred to the jury to determine whether Holland & Porter were partners in merchandising; instructing them, that if they were partners only in mining coal, but not in store-keeping, Porter was not liable. But that if they were satisfied that the partnership in store-keeping existed, then one member of the firm could employ a clerk, and give him all the authority necessary for conducting the business with convenience.
    He further observed, that “ Benjamin S. Smith testifies, that he was employed as a clerk by Holland, for the firm; that he was in their employment for a considerable period of time, kept the books, and usually gave the due-bills. He also proves that they purchased tin-ware from the plaintiff’s pedlars, for the use of the store; and that the due-bills in suit were given by him for hills of tin-ware. Although it is not the general business of a clerk in a retail store to buy, but to sell goods, yet as it is known to be customary throughout the state for such clerks to exercise pretty extensive powers with the assent of their employers, we are not prepared to say, as requested by the defendants, that the notes in suit are void ; on the contrary we instruct you, that if you believe the evidence of Smith as to his powers and their customary course of business, the notes of the 17th August, 1847; 22d September, 1848, and $26.16 cts. of the note of March 4,1848, are good and valid, provided Porter was a partner with Holland in the store. «

      The balance of that due-bill amounting to $83.39 cfs., the plaintiff cannot recover without further proof. The taking up of the old due-bills and giving new ones in their stead, is not the usual business of a clerk in a retail store. Smith does not prove sufficient authority to give such a note, and there is no other evidence of the indebtedness of the defendant than the due-bill itself. The plaintiff has sued on it, and not for the goods sold. If he had a count in the narr. for the goods sold and delivered, he might recover on the evidence of Smith, independent of the note. From aught that appears, those notes may still be in Smith’s hands or outstanding. Smith was not the agent of the defendant, to lift them and give a new one ; he is rather made the agent of the plaintiff in the transaction, to hold his paper. Had the act been done by Holland, or by his instruction before, or received his sanction afterwards, it would have been binding on Porfer — would have been within the general power of a partner, but is not within that of a clerk unless authorized, or the act ratified. He' has no general power to change the securities or give new evidences of indebtedness without authority from his employer. All that Smith says of the notes or boohs must be rejected. The boolcs are the best evidence.

    December 20, 1851, verdict for plaintiff for $71.42. Judgment was entered without costs.

    Error was assigned to the rejection of the accounts attached to Espy’s deposition, and to the parts of the charge which are printed in italics.

      H. Alrichs, for the plaintiff in error.
    — It was, inter alia, contended that under a general agency, the agent can bind the employer by all acts within the scope of his employment; Paley on Agency 179; Id. 209; Russel on Factors 48; Law Lib. 75 and 88.

      Boas, contrá.
    — The material question was, whether Smith, the clerk, had the right to give notes; and if he had, then whether he could take up notes given by him and give others in their stead. The party alleging the existence of such authority should prove it clearly; that it should not be inferred from doubtful or equivocal testimony: 7 W. & Ser. 317; 7 Watts 524.
    July 25,
   The opinion of the Court, filed was delivered by

Woodward, J.

— We cannot concur in the opinion of the Court below, that Smith does not prove sufficient authority to give such a note as that in suit. He was the principal clerk of the defendants and had the general management of their store. He bought tin-ware from the plaintiffs’ pedlars for the use of the store, and was accustomed to give due-bills, with the knowledge of the defendants, or at least of Holland. The note in suit was given for tin-ware purchased in the usual course of business, and which went into the store for the use of the firm. The fact that part of it had been bought before giving this note, and that three due-bills had been given, which were taken up, and the amount put into this note, does not alter the character of the transaction. Suppose no due-bills had been given for the first three lots of ware purchased, might not the price be added to that of the fourth lot, and the whole put into a note ? If Smith had authority to give a note at all, this might certainly have been done. But what were the due-bills more than evidence of the prior purchases ? They were not payment — they were mere memoranda of indebtedness, and when destroyed and the amount put into a new note, no new debt was created, and no increased authority exercised. The evidences of the existing debt were condensed into a more convenient form. This was all that was done, and this was quite within the scope of the clerk’s agency. These transactions were had under the eye of Holland, without question or objection, and if they would bind him they equally bind Porter, the partnership being found. The evidence ought to have been submitted to the jury, and if they believed the testimony of Smith, and were satisfied of the partnership, they ought to have been instructed that the plaintiff was entitled to recover.

The jury found the partnership, and therefore the plaintiff was not prejudiced by the rejection of the evidence mentioned in the first bill of exceptions. But as the cause must go to another jury, where the question of partnership will again be open, and as .the plaintiff is entitled to the benefit of all evidence that is competent, it is proper we should say that we deem the evidence offered competent. Partnership is a fact that is generally to be made out by the conduct and declarations of the parties, and the stating and settling accounts with customers in the firm name, is a circumstance to go to the jury on such a question. The competency of the account made out in the name of Holland &.Porter against Espy, does not depend at all on Porter’s inspection or knowledge of it. If - he suffered his name to be held out to the world as a partner, and permitted persons to deal on the credit of the firm, he cannot object that the books were kept and accounts rendered in the firm’s name. These were pregnant facts, which the plaintiff had a right to put before the jury in connection with the other circumstances in proof.

There was no error in refusing to permit the plaintiff to recover on the consideration of the note, for though the narr. contains a count for goods sold and delivered, the only breach assigned is for not paying the note.

The judgment is reversed and a venire de novo awarded.