text:
    Thompson’s Appeal.
    1. Whenever a trust-fund has been -wrongfully converted into another species of property, if its identity can be traced it will be held, in its new form, liable to the claim of the cestui que trust, which attaches to it until detached by the superior equity of a bong, fide purchaser, for a valuable consideration, without notice.
    2. But the right of pursuing it fails when the means of ascertainment fail; and this is the case when the subject-matter is converted into money or confounded with a mass of property of the same description.
    3. An individual, as executor, received moneys which he used in his own business; and being also otherwise indebted, he executed a voluntary assignment: Held, that the heirs of the decedent were not entitled to a preference in the distribution of the fund in the hands of the assignee, but only to a pro rata share with other creditors.
    Appeal from the decree of the Common Pleas of Allegheny county.
    This was an appeal by J. W. Thompson and others, from the decree of the Court, affirming the distribution made by an auditor on the account of John Scott, assignee under a voluntary assignment by R. A. Cunningham.
    Cunningham, the assignor, took out letters testamentary on the day of , A. D. 185 , on the estate of Seth Matthews, deceased, and converted the assets of said estate into cash, and used them in his business. On the 7th day of November, 1851, whilst indebted to said estate in the sum of $1579.84, he executed a voluntary assignment for the benefit of his creditors. The assignee filed his account, showing $3486.71 for distribution. An auditor having been appointed for that purpose, the indebtedness of the assignor being about $18?000, the heirs of Seth Matthews claimed that the indebtedness to their father’s estate, aforesaid; should be first paid in full. The auditor allowed their claim. Exception being taken, by other creditors, to such allowance, the matter was argued before the Court of Common Pleas, but the report of the auditor was confirmed. Appeal on the part of the other creditors to this Court was taken, and one of the exceptions was to the payment in full of the claim of Matthews’ heirs.
    Selden, for plaintiff in error.
    Watson, for appellee.
   The opinion of the Court was delivered, September 15, by

Lewis, J.

Whenever a trust-fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the cestui que trust. No change of its state and form can divest it of such trust. So long as it can be identified either as the original property of the cestui que trust, or as the product of it, equity will follow it; and the right of reclamation attaches to it until detached by the superior equity of a bond fide purchaser, for a valuable consideration, without notice. The substitute for the original thing follows the nature of the thing itself so long as it can.be ascertained to be such. But the right of pursuing it fails when the means of ascertainment fail. This is always the case when the subject-matter is turned into money and mixed and confounded in a general mass of property of the same description: Story’s Equity, sec. 1257, 1258, 1259. This mixture has taken' place in the case under consideration. It is impossible for a chancellor to lay his hand upon a single article of property or on a single dollar of money included in the assignment, and say that any particular thing or sum of money is either the original property of Seth Matthews’ heirs or the product of it. The decree below was therefore erroneous.

Decree reversed, and decreed that the funds in the hands of the assignee be distributed pro rata among all the creditors of the assignor. Record remitted.


source: Caselaw Access Project

author: Black, C. J.

license: Public Domain

text:
    Schwamble versus The Sheriff.
    1. The county commissioners have no right, on taking security for the fine, to discharge from prison a person convicted on indictment for a misdemeanor and sentenced to pay a fine to the Commonwealth. See opinion in Berks County v. Pile, 6 Harris 497.
    2. The person convicted, having been discharged from prison by the deputy-sheriff, by the direction of the county commissioners, without the payment of the fine, was lawfully retaken by the sheriff.
    This was a writ of habeas corpus issued out of the Supreme Court at the instance of Philip Schwamble, and directed to the sheriff and jailer of Allegheny county, William Magill.
    To the writ, the sheriff returned that the said Philip Schwamble was in custody by virtue of a sentence of the Court of Quarter Sessions of Allegheny County, on an indictment and conviction for keeping a tippling house, the sentence being that he pay a fine of seventy-five dollars to the Commonwealth, pay the costs of prosecution, and stand committed until the sentence be complied with. It was further averred that on the 14th July, 1853, the said Philip Schwamble sued out of the District Court of Allegheny county, a writ of habeas corpus, for the same restraint; but that, after a hearing, he was remanded to the custody of the respondent.
    The Act of 24th March, 1818, provides that fines and forfeited recognisances shall be certified into the office of the commissioners of the respective counties, within ten days after the expiration of the term at which such fines and forfeitures were imposed, &c.; and all sums of money collected in pursuance thereof shall be paid to the respective county treasurers for the use of the counties respectively ; and it shall be the duty of the commissioners of the respective counties to superintend the collections of said sums of money, &c. Provided that nothing herein contained shall impair the right of the respective Courts to moderate or remit forfeited recognisances as heretofore.
    Subsequent acts have been passed in relation to forfeited recognisances.

    Mahon, for the relator,
    contended that the county being the beneficial owner of the fine, the county commissioners might take security for its payment,—also, that the relator having been discharged from prison, could not be retaken.

      Darragh, oh part of the Commonwealth.
   The opinion of the Court was delivered, September 19, by

Black, C. J.

The relator in this case was convicted of keeping a tippling house, and sentenced to pay a fine of seventy-five dollars, and the costs of prosecution, and to remain in custody until he complied. After he had been in prison some time, he paid the costs, and the commissioners of the county thought proper to direct his discharge without payment of the fine; and he was accordingly suffered to go at large by the under-sheriff; but when this fact came to the knowledge of the high-sheriff, he, believing the discharge illegal, caused him to be retaken. It becomes our duty to determine whether the recapture of the relator was legal, and whether he is now in the lawful custody of the respondent.

If the county commissioners had no right to discharge him, the right of the sheriff to retake him was very clear. In civil cases, if a party escapes who is in custody on mesne process, he may be retaken any time before the return-day. If he is held on final process, the sheriff becomes absolutely liable for the debt and costs by suffering the prisoner to go at large, and he cannot imprison him again. But a party who is in custody accused,or convicted of a criminal offence,—whether he be in jail awaiting his trial, or in execution of a sentence after trial—if he escapes he may be recaptured at any time afterwards, and this whether the escape was voluntary or involuntary on.the part of the sheriff. It is well settled that one who has been detained for non-payment of a fine, may be retaken by the very officer who consented to his escape : (6 Hill 349; 1 Neil Gow’s N. P. Cas. 99). It is no argument against this rule that an officer who permits the escape of a convicted criminal may be indicted and punished as the criminal himself would be. The officer does not suffer instead of the criminal, but he is punished with him; and though it be according to the same measure, it is for a distinct offence.

If therefore the county commissioners had not the authority to discharge the relator, his departure from the prison was a mere escape, and though he went with the consent of the sheriff, he was legally retaken, and must remain in custody until he is delivered in due course of law.

The commissioners have a right, and it is their duty, to manage the financial affairs of the county. They are the guardians of the treasury and no money can be paid out except on their order. All special contracts for and on behalf of the county are made by them. They must see to the collection of the debts due to the county, and provide the ways and means to meet those which it owes. In the performance of these duties they have a wide latitude of discretion. They are not bound to sue a debtor of the county from whom they know that nothing can be recovered; and where a prisoner is detained merely for non-payment of costs, even in a criminal case, they may advance the sum necessary to discharge him if they are satisfied that by doing so money can be saved to the treasury. The last seems like a stretch of power, but it has been sanctioned by the approbation of several eminent judges of this Court, though not by any direct adjudication: (12 Ser. & R. 95; 5 Ser. & R. 400).

But when a party is convicted of an offence and adjudged to pay a fine, and committed to jail because he does not, the case goes altogether beyond the jurisdiction of the commissioners. It is then a question of justice; not of economy. The fine is imposed to punish the prisoner, and not to replenish the treasury. The commissioners can make no order for the discharge of one who is in jail in execution of a criminal sentence, without being guilty of a most unauthorized interference with the administration of the criminal law. There is no judicial dictum, much less a decision, anywhere to be found which can excuse the assumption of such authority. It may have been done; perhaps it has been often done in some of the counties. But it is a custom which has neither reason, law, nor good policy to support it, and it ought to be utterly abolished.

When the judges pronounce their sentence on a convicted offender, it is their duty to consider his pecuniary circumstances. If the finé is greater than he can pay, it must be presumed that the legal term of confinement was meant to be substituted for the money. From, such a judgment of the Court there lies no appeal to the board of commissioners. But if they can discharge the prisoner when they please, they are virtually his judges in the last resort, and if he obtains their favor, the opinion of the Court on his case can make but little difference.

Poverty is a sufficient excuse for many shortcomings, but it exempts no man from the legal consequences of a positive crime. The legislature has taken special care that a fine shall not be regarded in the light of a common debt. Ho matter how poor the convict may be, nor how large the fine, nor how clearly he may demonstrate his inability to pay it, the insolvent laws will not release him until he has passed a certain period in confinement. He must expiate his offence either by payment, or by imprisonment. If it cannot be taken out of his'pocket, he must atone for it with his body. When -the commissioners discharged the relator, they set themselves above the legislature as well as the Court.

And this is not all. They usurped the functions of the governor also. It sometimes happens that Courts, misled by false information, or compelled .by some unbending rule of law, inflict punishments which mercy would not enforce. The power to pardon is therefore necessary, but it is vested exclusively in the executive. If the commissioners can remit fines, the appeal in such cases should be made to their clemency, and not to that of the governor.

If the punishment of a convict may b.e remitted in this way, when it consists of a pecuniary fine, on the plea that it is a good financial arrangement, why may not the commissioners for the same reason discharge one who is condemned to undergo a certain term of imprisonment without a fine ? They can make as much and save as much in one case as in the other, and in both cases they render the sentence of the law equally nugatory.

Again: If they can stay the execution of,the sentence after conviction, by way of protecting the treasury, what should hinder them from stopping the trial ? Doubtless a very large amount of money might be saved to the treasury by not allowing prosecutions to be commenced at all, especially against men who are unable to pay the expense. Yet society must be protected, cost what it will. In Berks County v. Pile (6 Harris 493), we decided that a promise made by the commissioners to pay the costs if a nolle prosequi was entered in a pending indictment, was void, as being against law and policy, though the commissioners considered’ themselves justified by the fact that the county would save money by the contract. Economy in the management of public funds is certainly a great virtue, and all the more valuable because it is rare; but still no matter of mere dollars and cents can be put in competition for a moment with the administration of criminal justice.

I have said nothing about the security which, the commissioners are said to have taken for the fine. It is not their business to take even the money; a payment to them is a mis-payment; a fortiori the note of the defendant, with or without a surety, is no reason for the discharge. The prisoner is bound to pay the fine to the sheriff or to the treasurer. If the commissioners desire to aid him, they have the right which a private citizen has, to lend him the money, or to advance it as a gift out of their own pockets; but their office gives them no right to interfere.

Prisoner remanded.


author: Lewis, J.

text:
    King versus Faber.
    1. The authority of partners is limited to the business of the partnership ; and an acting partner, like others, is confined within the same limit.
    2. A partner cannot render the firm liable for a note for his individual debt by including within it a debt of the firm forming a small part of it.
    3. The assent of one other of the partners to the giving of the note could not render the third partner liable.
    4. The payees of the note in question were not innocent holders of negotiable paper without notice of the consideration, but were aware that their claim was against other parties—under these circumstances, it was their duty to see that the note in suit was signed with the assent of all of the partners.
    Error to the District Court of Allegheny county.

    This was a suit by. F. & W. M. Faber, partners, v. J. Bell, Geo. S. King, and Peter Shoenberger, as late partners, trading under the firm of J. Bell & Co. The process was not served on J. Bell. The declaration contained three counts, the first and second were on a note ; the third was in indebitatus assumpsit. The note was as follows:
    $57134/100 Pittsburgh, January 31, 1850.
    On the first day of August next, we promise to pay to order of F. k W. M. Eaber, five hundred and seventy-one dollars and thirty-four cents, payable in good foundry pig metal, at the rate of Pittsburgh six months market price, without defalcation, for value received. Signed J. Bell & Co.
    On the part of King & Shoenberger it was plead that they did not make the note. On 5th January, 1858, verdict for plaintiffs for $601.68,
    It appeared that there were three several firms in existence, which were composed as follows:
    The firm of J. Bell & Co., composed of J. Bell, Geo. S. King, and Peter Shoenberger. Geo. S. King was the acting manager of this firm. They owned Mill Creek Furnace, and were engaged in the manufacture of pig metal. Their furnace was propelled by water-power.

    Another firm, Geo. S. King Co., was composed of Geo. S. King and Peter Shoenberger. Geo. S. King was the acting manager of this firm. They were also owners of a furnace.
    A third firm, J. & J. Bell, were owners of Washington Furnace, and were engaged in the manufacture of pig metal.
    A. J. Wigton, one of the firm of Wigton k Moore, purchased for that firm from F. & W. M. Faber, the plaintiffs, a steam-engine for which they were to pay $1100. The engine was to be ready for delivery on the 8th December, and the terms of payment were to be an order on J. & G. H. Shoenberger for rolled iron. Pig iron was afterwards agreed on, and interest on the two payments of $550 each was agreed on; the interest on the one payment amounting to $10.44; on the other to $21.34—in all $1131.68. After the contract was agreed on, Wigton had a conversation with King, of the firm of King & Co., and King gave him a letter to the Messrs. Faber, dated December 4, 1849.
    Wigton testified in the case, that he wanted to make a payment on account of the engine through King & Co. and J. Bell & Co., as both of those firms were indebted to him. Against King & Co. he had a note for $600; and against John Bell & Co. he had one for $300. These notes were offered to the plaintiffs, who refused them on account of the manner in which they were drawn. He had also two other notes drawn by J. & J. Bell, the firm thirdly named, in favor of Conrad & McCoy.

      Wigton gave up to John Bell the note for $600 on King & Co., for which Bell gave a note signed J. Bell & Co. for $560.34, payable to the Fabers, on 1st May, 1850. Bell also gave up to Wig-ton another note signed J. Bell & Co. for $571.34, payable to F. & W. M. Faber, viz. the note in suit. The latter note was to be in part payment of a note for $1000 against J. & J. Bell, which Wigton held. For this $1000, Shoenberger & King were not liable. The $1000 note had been given by J. & J. Bell to Condren & Co. for some mules, sold by them to J. & J. Bell. Shoenberger & King had no interest in the transaction. There was no other consideration for the note in suit than the credit given on the note of J. & J. Bell for $1000; and it did not appear that Shoenberger gave any authority for giving the note in suit.
    On the 1st February, 1850, a settlement was made between John Bell and Wigton, the account on the one side being:
    The note of Condren & Co. for $500; interest $17.50: note of King & Co. for $600, and credit on John Bell & Co.’s note in favor of L. L. Moore, $14.18; in all $1131.68, with the statement that- the above was to pay for the steam-engine bought of Messrs. F. & W. M. Faber,—for which J. ft J. Bell gave their note for $571.34, and John Bell & Co.’s note to Messrs. Faber for $560.34; in all $1131.68. This settlement was signed by John Bell and A. J. Wigton.
    Wigton further testified that at the time the said settlement was signed, he supposed that John Bell had given to him notes as stated in that paper, viz. the note of J. & J. Bell for $571.34, and the note of J. Bell & Co. for $560.34. That the previous agreement between Bell and him was that the settlement was to he made as was stated in that paper.
    The first note to the plaintiff was paid in pig metal. King was present at the time of the delivery of the metal. Bell was then considered to be in good circumstances as the partner of King and Shoenberger. Bell afterwards failed.
    It was testified that John Bell transacted no business for J. Bell & Co., at Mill Creek Furnace, without consulting the other partners ; and that Gr. S. King was the acting manager and partner of the two furnaces of J. Bell & Co. and Gr. S. King & Co.
    There was given in evidence, on part of the plaintiffs, a letter dated December 4th, 1849, from Greo. S. King, signed Greo. S. King & Co,; in which it was stated that he considered Wigton, Moore & Co. good for the amount of the engine. It was added, “ They wish to make their payment through us. We, perhaps, can make it suit to take part metal instead of iron. We will see you on our next visit to Pittsburgh.” Signed Gr. S. King & Co..
    In answer to a point presented on the part of the defendants, the Court instructed the jury that one partner could not bind his copartners by giving a note in the partnership name for his own private debt, without their assent. One of the points, the seventh, was as follows:
    To enable the plaintiffs to recover in this case, it must be proven that both defendants, George S. King and Peter Shoenberger, gave such assent as is described in the foregoing points; and that, unless it has been proven to the jury that both King and Shoenberger gave such assent,, the plaintiffs cannot recover, in this case, a verdict against both or either of them.
    Answer.—“ If you believe that Geo. S. King was the acting and managing-partner in both the firms of Geo. S. King & Co. and John Bell & Co., and that he gave, his assent to the giving of the note by John Bell, in the name of J. Bell & Co. to the Eabers, such assent on the part of King will be sufficient to render both King and Shoenberger liable in this action, under all the circumstances, if established to your satisfaction.” To which answer the counsel for the defendants excepted.
    The answer to this point was assigned for error.

      Loomis, for plaintiff in error.
    One partner cannot bind the firm by signing their name in a matter in which the firm has no concern, unless he has previous authority, or there is subsequent ratification : 4 Ser. & R. 288, Park v. Smith; 2 Id. 152; 12 Ser. & R. 15; 4 John. 261, and other authorities. King, though the acting manager of the firm of J. Bell & Co., had no authority to bind Shoenberger in this matter, which was foreign to the business of the partnership.

      Brady and Stanton, contra.
    It was contended that King & Shoenberger were benefited by the arrangement. The firm' of King & Co. were indebted to Wigton $600. By the arrangement with the plaintiffs, their debt to Wigton was arranged, and instead of having to pay it in money, the firm of J. Bell & Co., of which they were members, were to pay it in pig metal. The time of payment, also, was extended. As King was the acting partner, it was submitted whether his assent to the arrangement did not render it binding on Shoenberger.

    The note of Bell & Co. was for $600. It was given up when the first note of $560.34 was given. The latter sum deducted from the first would leave $39.66, which was included in the last note, viz. the one involved in this suit. It was contended that this balance would be a sufficient consideration to bind King and Shoenberger.
    It was further said that the settlement between Bell and Wig-ton, being made after the notes had been given to the Eabers, could not affect the notes given to them. But it was contended, as Bell- sometimes did business for the firm of Bell & Co. with the assent of his partners, that in this ease he carried into effect the suggestion contained in the letter of King of the 4th December; and it was intimated that the jury might infer that the assent of both King and Shoenberger had been obtained to the arrangement made with the plaintiffs.
   The opinion of the Court was delivered, September 22, by

Lewis, J.

The authority of partners is limited to the business of the partnership, and the acting partner, like others, is confined within the same limit. It is no part of the business of a partnership to incur liabilities for the debts of third persons, unless such liabilities are incurred in the course of the necessary transactions of the firm.

One partner cannot make the firm liable for a note of $571.34, given by him for his own individual debt, or for the debt of a stranger, by including in the consideration a trifling debt of 30 or 40 dollars which the firm were bound to pay. Such an act is not within the limit of his authority. It would avail but little to set bounds to the authority of partners if they might make each other liable for millions, in no way connected with the partnership business, by including in the transaction a few dollars for which the firm was bound.

Neither Bell, nor King, nor both together, can bind Shoenberger for the debt due by Moore & Wigton to F. & W. M. Faber. Neither the note given by Bell, nor the letter of the 4th December, 1849, written by King, can make Shoenberger liable without his consent. We see no evidence of his assent, nor are there any circumstances in the case to dispense with it. The plaintiffs below are not innocent holders of negotiable paper without notice of the consideration. They were perfectly aware of the fact that their claim was upon Moore & Wigton, and that the note in the partnership name of the plaintiffs in error was not given in the regular course of their partnership business. Under such circumstances it was the duty of the plaintiffs below to see that the note was signed with the assent of all the partners.

The seventh point of the plaintiffs in error, ought to have been answered in the affirmative. We see no other error in the proceedings.

Judgment reversed and venire facias de novo awarded.


author: Woodward, J.

text:
    Bircleback versus Wilkins.
    1. A note, not negotiable, was endorsed by the payee in blank, and under an agreement that the endorsement should impose no liability on the endorser; it was afterwards received by the holder, who, though without notice of the agreement, did not prove that he was a holder for value: Held, that he took the same subject to the equities between the payee and his immediate endorsee.
    2. The mere possession of a note not negotiable implies no consideration for its transfer, and gives the holder no right of action on it in his own name.
    Error to the District Court of Allegheny county.

    This was a case stated entered to April Term, 1852, in which A. Wilkins was plaintiff, and Philip Bircleback was defendant.
    The parties in this case agreed upon the following facts, to bo considered in the nature of a special verdict.
    Henry Hannen & Co., being indebted to Philip Bircleback, gave him their note as follows:
    $113.02. Pittsburgh, Sept. 21, 1850.
    Four months after date, we promise to pay to Philip Bircleback, one hundred and thirteen dollars and two cents, without defalcation, for value received.

      (Signed,) Henry Hannen & Co.
    On the 9th day of October, 1850, Philip Bircleback transferred the above-mentioned note to John Brown, by endorsement in blank, in part payment of the price of a lot of ground, purchased that day from said Brown. At the time of the transfer of the note to Brown, it was expressly agreed in the presence of witnesses, that Brown should look to Hannen & Co. for payment, and that Bircleback should not be liable on the note. The object of the endorsement was merely to transfer the interest of Bircleback to Brown. Afterwards, and before the maturity of said note, it passed from Brown into the possession of Joseph Bingham, who liad notice that Bircleback was not to be considered liable on the note. Bingham got the note from Brown under the pretence that he could settle the note with Hannen & Co., he having an account with that firm. Bingham, instead of settling the note with Hannen & Co., transferred it to A. Wilkins, the plaintiff in this case. It is admitted that the firm of Hannen & Co. is insolvent, and was so at the time of the maturity of the note. The note was duly protested for non-pa.yment, and notice of protest was serve'd on Philip Bircleback, as the endorser. Date of protest, January 24th, 1851, and notice to Bircleback same date. The omission of words of negotiability in the note is admitted not to have been accidental, but designed to prevent its negotiation. If, upon these facts, the plaintiff be, in the opinion of the court, entitled to recover, then judgment to he entered for the plaintiff for the amount of his claim, with costs, &c.; otherwise, judgment for the defendant with costs. The right to a writ of error reserved to each party.
    Signed by counsel, and filed Oct. 20, 1852.
    November 16, 1852. Judgment for plaintiff on the case stated, for one hundred and thirteen dollars and 2 cents (113.02), with interest from the 24th day of January, 1851.
    It was assigned for error that the court erred in entering judgment for the plaintiff, on tfie case stated.

      Carnahan, for plaintiff in error.
    The note in suit was not negotiable. As between Bircleback the payee, and Brown to whom he transferred it in blank, there was no liability, as the agreement was, that the former was not to be liable. Bingham, the next holder, had notice that Bircleback was not to be liable, and the fact of its not being a negotiable note was sufficient to put Wilkins, the plaintiff in the suit, on inquiry. Besides, it was not proved that Wilkins paid a valuable consideration for the note, and mere possession of a note not negotiable will not primá facie confer a right to sue. Where a note not negotiable is endorsed by the payee, with respect to such immediate endorsee, the endorsement ordinarily imposes the same obligations on the payee as the endorsement of a negotiable note. But in respect to every subsequent holder, no priority or connection is at law created between the payee and such holder, unless the payee by his endorsement makes it expressly payable to his endorsee or order, or he expressly promises to pay the note to the holder in consideration of the endorsement; and therefore such holder cannot, under such circumstances, bring any suit at law in his own name against the payee upon the dishonor of the note: Story on Pro. Notes, sec. 128.
    The case of Leidy v. Tammany, 9 Watts 353, is not in conflict with the above. In that case, after the note had become due, Tammany, the payee, in order to induce Leidy to take the note, endorsed it, and promised that if Leidy would take the note, he would cash it before a time designated. Leidy, therefore, was the immediate endorser of Tammany; there was a direct contract between them, and Tammany was estopped from setting up any defence either to the form of the action, or the merits of the case. In this ease, the note was endorsed by Bircleback several months before maturity; the endorsement was to be a mere transfer of his interest; there was to be no liability on his part. Wilkins was no party to the transfer, and if he can maintain a suit at all, it should be brought in the name of Brown, who was the immediate endorsee: 10 Barr 31, Gillespie v. Mather; 5 Wharton 331; 6 W.
      and Ser. 234-5; 8 Id. 361. In the opinion in the case of Patterson v. Todd and Lemon, 6 Harris 426, published since the judgment in this case, the case of Leidy v. Tammany is restricted to its special circumstances (p. 432-4), and it was held that the contract of endorsement may be explained by parol evidence to mean nothing more than a transfer of the debt without recourse to the endorser.
    The endorser of a note not negotiable is liable only as guarantor, if liable at all, except in the cases referred to, in the citation from Story; but to render him liable as guarantor it is necessary to show consideration for the endorsement, except where it is made at the time the note was drawn: Story on Pro. Notes, sec. 473-4.

      Rogers, for defendant.
    It was contended that, the note not being-negotiable, and being endorsed in blank before maturity, Bircleback became liable; that in legal effect the endorsement .amounted to the drawing of a bill in favor of the endorsee: Story on Bills, sec. 60; 1 Salk. 125; Id. 132; 3 East 482; Story on Pro. Notes, sec. 129. The endorsement amounts to a new undertaking: 1 Yeates 360; Leidy v. Tammany, 9 Watts 353.
    It was said that where an endorsement is in blank, the note will pass by mere delivery, and the holder may make himself the immediate endorsee by filling up the blank in his own name: Story on Pro. Notes, sec. 139; Story on Bills, sec. 208. And that there was no necessity to prove a consideration by Wilkins; that the mere possession gave the right to sue; and without a plea giving notice of a want of consideration, he was not called upon to prove any; and it was contended that the case stated, precluded the defendant from taking any advantage on this ground.
   The opinion of the Court was delivered, September 22, by

Woodward, J.

This note was not negotiable on its face, nor made negotiable by the blank endorsement of the payee. Wilkins therefore took it subject to the equities existing between the original parties, and, according to their very express agreement, Bircleback was not to be liable by virtue of his endorsement. In Patterson v. Todd & Lemon, 6 Harris 434, it was held that an endorsement may be explained by parol evidence, to mean nothing further than a transfer of the debt without recourse to the endorser; and that was precisely the import of Bireleback’s endorsement of this note.

Nor is there any hardship in enforcing the agreement of the original parties against Wilkins, because, although he took the note without notice of the agreement, it does not appear that he paid anything for it, or was a holder for value. Mere possession of non-negotiable paper implies no consideration, and confers no right of action in the holder’s name.

The judgment is reversed, and judgment entered for the defendant below for costs.


text:
    Turnpike Road versus Brosi.
    1. A tenant for years of land is an owner within the terms of the Act of 7th April, 1849 (supplementary to the Act of January, 1849, regulating turnpike and plank-road companies), which, in all cases where any injury or damage shall be sustained by any owner or owners of any lands, tenements, and enclosures, authorizes a recovery of damages for such, injury.
    2. Held, that a tenant whose lease commenced before the injury was done, or the company committing it was organized, and who was in possession at the time of the injury, was entitled to recover damages for an injury sustained by him in the construction of the turnpike road.
    3. The advantage which the tenant may derive from the construction of the road, may be deducted from the injury done to him; but not that derived by the owner of the fee.
    Error to the Common Pleas of Allegheny county.

    This ease was tried in the Common Pleas on an appeal from the judgment of a justice of the peace, in a proceeding by Jacob Brosi v. the President and Managers of the Allegheny and Perrysville Turnpike Road Company.
    It was a proceeding had under the general Act of 26th of January, 1849, “ regulating turnpike and plank road companies,” (Acts page 10, &c.,) and of the supplement thereto passed on 7th April, 1849. (Acts page 461.)
    The sixth section of the Act of January, 1849, renders it lawful for officers, engineers, &c., of the company to enter upon lands through and over which the intended 'road may pass.
    In the ninth section it is provided that “ It may be lawful for the president, &c., with their superintendents, engineers, &c., to enter in and upon the lands contiguous and near to which the road shall be made or constructed, first giving notice -of their intentions to the occupiers thereof, and doing as little- damage thereto as possible, and making amends for damages upon a reasonable and equitable agreement by the parties ; or if they cannot agree thereupon, a just and equitable assessment to be made, &c., by three disinterested freeholders, or any two of them, two of whom shall be mutually chosen by the parties, and said two thus chosen, shall choose a third; or if either party, upon due notice, shall neglect or refuse to join in the choice, then to be chosen by a justice of the peace, &c.; and upon the tender of the assessed value, to dig and carry away any timber, stone, sand, earth, or other materials, necessary or suitable for making said road. Provided,” &c.

      In the first section of the supplemental Act, it is provided, “ That in all cases where any injury or damage .shall be sustained by any owner or owners of such lands, tenements, and enclosures, as are ‘referred to in the sixth section of the Act to which this is a supplement, the said owner or owners shall be entitled to recover damages for such injury, which damages shall be assessed in the manner prescribed in the ninth section of said Act.”
    By the second section it was made the duty of the freeholders to deliver the assessment to any justice of the peace, of the county wherein the land lies, who shall enter judgment thereon, from which judgment either party may appeal within twenty'days from the entry thereof, to the Court of Common Pleas of the proper county, to be determined as other cases of appeal from judgments of justices of the peace.”
    In pursuance of a notice on the part of Brosi, to choose persons to assess the damages, if any, that maybe sustained by him by reason of the making and construction of the road of the company, through a certain leasehold property of the said Brosi, persons were appointed who reported $66 in his favor.
    An appeal was entered on the part of the company, and on February 25, 1853, a verdict was rendered in favor of the plaintiff for $294.10.
    In the counter-statement it was stated, that, on the trial, the plaintiff exhibited a lease for the premises; that it commenced on April 1, 1847, and terminated on April 1, 1853, and that he proved “ that he was in possession by assignment under this lease at the time the road was surveyed, and during the time it was in process of making; also, that he still holds the lease of the property.”
    The turnpike company in question was incorporated in 1849.
    The material question on the' trial was whether the plaintiff, being a tenant for years, could recover damages from the Company for injury sustained by him in the making of the road.
    On the trial several points were proposed on part of the plaintiff. The first was, that plaintiff is an “ owner,” under the Act of Assembly relating to turnpike and plank roads, and as such has a right to recover compensation in this proceeding, for all damage done to his interest in the property. Affirmed.
    On part of the company, points as follows were proposed:—
    1. That if the evidence satisfy them, that plaintiff had no greater estate than that of a lessee for a term of years, he is not entitled to present any claim, under the act of incorporation of defendants.
    4. That if the .road of defendants, was located so that any alteration of the line did not increase the damages that would have been sustained, by reason of such alteration, at the time the lessor obtained his alleged interest in the term or lease, such lessor took his supposed interest subject to said road and its location, and cannot claim damages.
    7. That the plaintiff being the only owner appearing on behalf of this tract of land, on which he lives, or of any estate therein, they-are bound to set off the whole increased value of the land, as improved by the road, against the claim here presented.
    9. That the tenant’s remedy for the eviction alleged, is against his landlord, who held subject to allowance for roads, &e.
    The court negatived the first, point. To the fourth it was charged, there is no evidence that the lessee, the plaintiff, got a lease for less than he would have done, had no such road been in progress or contemplation. There is no evidence that the road, its advantages or disadvantages, was any element or item which entered into the bargain when the lease was made, and if it had been, the defendants were no party to it. There is evidence that the rent in the first lease from the owner, in fee, was $600, and the sub-lessee, the tenant, the plaintiff, after a lapse of time, leased the premises for the same rent. This point assumes by implication what is not proved. If the plaintiff had leased from the defendant, the Court would affirm the point, but as he did not, the Court refuses so to do.
    7. The Court refuses to affirm this point, as it is not warranted by the Act of Assembly. The benefits and advantages to the owner of the fee, cannot be set off against disadvantages done and suffered by a lessee, whose lease has only three years to run.
    The ninth point was answered negatively. In the opinion of the Court, refusing a new trial, it was observed that the covenant for quiet enjoyment in the lease was to indemnify against a lawful eviction by reason of defect of title; but there was no defect of title in this ease. That the landlord did not covenant against the sovereign power of the state. The lessee could not maintain an action against the landlord for the injury in question, and his only remedy was the one pursued. The case of Thomas v. The Plank Road Company was referred to. See a report of it in 8 Harris 91, &c.
    Error was assigned to the answers to the said points.

      Craft, for plaintiff in error.
    The General Road Act requires advantages to be considered; also the probability of the road reverting: 8 Watts 177. It was said that,these considerations were not applicable to tenants for years. That a mortgagee is not an owner: 7 Ser. & R. 418. That the claim should be in the name of the owner of the land: 16 Ser. & R. 40; 1 W. & Ser. 346; 4 Wharton 90, Frost v. Earnest.

      Watson, for defendant.
    It was contended that a tenant for years, the owner of a leasehold, came within the meaning-of the term owner used -in the Act of Assembly on this subject. 4 Wharton 90-91, Frost v. Earnest. The lease in this case commenced,in 1847. The Company were incorporated in 1849, and' the road was opened in the spring of 1850, and whilst the tenant was in possession under the lease. The construction of the road therefore was not a subject of consideration at the making of the lease: 4 Wharton 90-91. The case, of Thomas v. Plank Road was cited (see report of it in 8 Harris 91, &c.)
    The landlord is not responsible for such an injury as this.
   The opinion of the Court was delivered, September 22, by

Lewis, J.

A tenant for years is the owner of an estate in the land, and is therefore entitled to compensation for an injury done to his estate by a turnpike road company in the construction of the road. Any advantages which his particular estate may derive from, the road maybe deducted from the amount of the injury done to him; but, the advantages which the owners of any other estate may derive from the road cannot be deducted from the claim of the tenant for years. The work may produce nothing but injury during the brief term of the tenant for years. While the workmen are excavating the ground, tearing down his fences, occupying his premises with teams and materials, and exposing his crops to injury, the road is generally in an unfinished state, and entirely unfit for use. This may continue during the whole of the term. The advantages of the road may commence only upon the expiration of the term, and thus the estate in reversion may receive the whole benefit from the work. In such a case, it would be gross injustice to the tenant to extinguish his rights by means of a cross demand against another. The proper place for the consideration of advantages to the reversion is, when the owner of that estate prefers his claim for damages.

It is certainly true that the purchaser of an estate cannot claim damages for an injury done to it before his purchase. Such claim is a chose in action, which remains in the hands of the vendor. The vendee is presumed- to pay less for the estate on account of the injury, and has therefore no claim to recover damages for it. Rut we do not perceive from the facts stated in the paper-book, that the plaintiff in error was entitled to instructions affirming the principle. On the contrary, the facts as stated in the counter-statement, and not denied, are “ that the lease commenced on the 1st of April, 1847, and terminated on the 1st of April, 1858 ; and that the plaintiff below proved that he was in possession by assignment under this lease at the time the road was surveyed,, and during the time it was in process of making.”

The errors assigned are unsustained, and the judgment must therefore be affirmed.

Judgment affirmed.


text:
    Hardy versus Watts.
    1. In a proceeding by a landlord against a tenant under the Act of 3d April, 1830, on account of non-payment of rent, and a decision by two aldermen against the tenant, to obtain an appeal an obligation by a surety was entered into as follows: “ I become bail absolute in this case, conditioned for the payment of all costs that has accrued, and all the costs that may accrue, in case that the said judgment be affirmed; and also for all rent that has accrued, and may accrue up to the time of final judgment.” Held, that in order to raise a question of variance between the allegations and evidence, the point must be made in the Court below; and none such having been made in the case stated, it was not material whether the instrument in question were called a recognisance or an obligation. A liability in either way is sufficient under the case stated.
    2. The instrument in question was, however, good as a recognisance, it containing every requisite of the statute.
    Error to the District Court of Allegheny county.

    This was an action of debt by Spencer Watts v. Aaron A. Hardy, on a recognisance entered into by the defendant before an aider-man, where an appeal was taken by Sarah Jourdon, in a proceeding against her as tenant, for failing to pay rent.
    In the narr. it was alleged that Watts, having leased a certain house, &c., to Sarah Jourdon, the rent of which she neglected and refused to pay, on the 23d November, 1850, brought “ his suit or action at law to recover the possession of the said demised premises, ‘ according to the Act of Assembly,’ and that there was rent in arrear, and unpaid, &c.; that on complaint to an aider-man he entered judgment against her; and that she delivered up possession, &e. It was averred that the defendant became liable, according to the form and effect of his said recognisance of bail,” &c.

    The plea was, that the defendant was not indebted in manner and form as in the declaration alleged ; and payment with leave, &c.
    In the Act of 3d April, 1830, relative to landlord and tenant, it is provided, in the ease of a proceeding against a tenant in case of non-payment of rent, “ That no writ of possession shall be issued by the said aldermen or justices for five days after the rendition of judgmentand if within the said five days the tenant shall give good, sufficient, and absolute security by recognisance for all costs that may have and may accrue, in case the judgment shall be affirmed, and also for all rent that has accrued or may accrue up to the time of final judgment, then the tenant shall be entitled to an appeal to the next Court of Common Pleas,” &c.

      A ease was stated as follows:
    The following are the facts agreed upon by the parties in this case; and upon which, if the court is of opinion the plaintiff can recover, judgment is to be entered in his favor for $292.13, with costs ; but if not, then judgment for defendant for costs.
    An action was brought by Spencer Watts, the plaintiff here, against a certain Sarah Jourdon, his tenant, to recover possession of the premises leased to her by said Watts, under the Act of 3d April, A. D. 1830, relative to landlord and tenant, before two aldermen, in which proceeding the said Watts obtained judgment “ that he have possession.”
    Whereupon the said Jourdon appealed to the Court of Common Pleas of Allegheny county, and the following recognisance of bail was taken by the alderman for said appeal:
    “ I become bail absolute in this case, conditioned for the payment of all costs that has accrued, and all the costs that may accrue, in case that the said judgment be affirmed ; and also for all rent that has accrued, and may accrue up to the time of final judgment.” Signed, “ A. A. Hardy.”
    Whereupon the proceedings were removed to the Court of Common Pleas. The ease was tried upon the appeal in said Court, in No. 220, December Term, 1850, and the judgment of the aldermen affirmed. Prout record. And now this suit is brought upon the said obligation, to recover $292.13, the rent and costs as aforesaid.
    The only question raised here, is whether the recognisance or obligation above stated, is sufficient to hold the defendant liable.
    The Court to enter judgment in favor of the party entitled thereto, upon the facts hereinbefore stated, with leave to either party to take out a writ of error.
    On the 2d day of July, 1853, the Court ordered judgment to be entered in favor of the plaintiff below, on the case stated, for $292.13, with costs of suit.
    Such judgment was assigned for error.

      Rogers and Loomis, for plaintiff in error.
    It was contended that the undertaking of defendant imposed no legal liability on him; that it contained neither a penalty or condition, and that both were necessary: 1 Jones 294, Caldwell v. Brindle.

      Stowe, for defendant in error.
    The statute does not require that any sum be specified. Where the entry by the justice substantially sets out the obligation required by law, it is sufficient: 5 Watts 334; 1 Pa. Rep. 149; 1 W. & Ser. 101, Bank of Pennsylvania v. Reed; 9 W. & Ser. 142. The obligation, if not a recognisance, would be good at common law as a promise: 8 Watts 388. The plaintiff acquiesced in the appeal, and was put to trouble and expense. No complaint was made as to fraud, mistake, or misunderstanding on part of Hardy, but the defence was on technical grounds.
   The opinion of the Court was delivered, September 22, by

Lewis, J.

This is a case stated in an action of debt upon what is alleged to be a recognisance of bail on appeal. It is stated, as part of the case, that “ the only question raised here is, whether the recognisance or obligation above stated is sufficient to hold the defendant liable.” On this case, thus stated, no question can be raised in regard to the form of the action, or the variance between the proof and allegation. Questions of that kind have generally so little to do with the merits, that we have repeatedly decided, in several recent cases, that a variance between the allegations and the evidence cannot be taken notice of here under a general instruction that the plaintiff is, or is not, entitled to recover. To enable a party to raise the question of variance he must make the point specifically in the court below. So that, if the defendant is liable on the instrument set forth in the declaration, it is not material now whether it be called a “recognisance” or an “ obligation.” A liability in either form, seems distinctly to be contemplated in the case stated, as sufficient to entitle the plaintiff to judgment.

But we think, under the circumstances of the case, that the instrument is good as a recognisance. It is a debt acknowledged of record. It was taken by a magistrate of competent jurisdiction in the regular course of judicial proceedings before him. The defendant acknowledges himself to be absolutely bound as bail, and then states the condition in substantial compliance with the terms of the law. He has, by entering into this obligation, secured for the defendant in the original proceeding, the advantages of a trial on an appeal. He has succeeded in putting the plaintiff to the expense of a second trial to establish his right, and has delayed him in obtaining what is justly his due. After all this, it would be grossly unjust to permit him to avoid his own engagement upon record, by the technical objection that no penal sum was stated in the instrument. This defect is one of mere form, in a recognisance taken on an appeal. The condition specifies the measure of liability, and in this case it contains everything required by the statute. Judgment affirmed.


text:
    Smith & Company versus Myler & Aber.
    1. It was not a ground of error that the defendants, who were in possession of a negotiable note, part of which was offered by way of set-off or equitable defence, did not first prove the share of it to which they were entitled.
    2. It was not admissible for the plaintiff to object to the admission in evidence of a note, which was offered by way of equitable defence, that it or a part of it had been previously used as a set-off in another suit by the same plaintiffs against another defendant. Such evidence was only admissible by way of replication. It was not in order as an objection to the evidence.
    8. Set-off, beyond the letter of the statutes, is an equitable defence.
    4. Though a note jointly owned by two persons can be sued upon only in a joint action, yet either of the owners of it, with the assent of the other, may use it by way of equitable defence in a suit against himself alone; or they may sever in such use of it, each party defending, in a suit against himself alone, to the extent of his interest in it.
    5. An instrument of writing filed with the precipe in the suit, purporting to he an assignment of the claim in suit to the party for whose use the suit was brought, was not admissible in evidence on his part, without proving it by one of the subscribing witnesses or accounting for their absence, &c.
    Error to the District Court of Allegheny county.

    There were two actions on the case, one to January Term, 1852, No. 129; the other to April Term, 1852, No. 575, by James R. Smith & Co., for the use of Lewis Cooper, v. Myler & Aber. In the first, the claim was for $329.37 with interest, for goods sold and delivered ; and the other was for $875.59 with interest, also, for goods sold, &c. On the trial, on part of plaintiffs was given in evidence the sworn copy of their account filed in the cases; and there was read a memorandum on the docket in the last case, purporting to be an assignment of the same to Lewis Cooper, dated March 11, 1852. The plaintiff’s counsel then rested.
    On part of defendants, was then offered in evidence a promissory note of James R. Smith & Co., dated March 7, 1851, at eight months, for $2311.51, payable to the order of Stuart and Brother, and by them endorsed “ without recourse;” alleging that $1150.20 of said note, with the interest on said sum, was due and payable to the defendants; and that the residue thereof belonged to John Thompson. The plaintiffs objected to such evidence, for the following reasons, viz.
    1st. That there is- no evidence that part of said note belongs to the defendants.
    2d. This note having been offered in evidence, under the pleas of payment and set-off, in the suit of the present plaintiffs ¶. John Thompson, No. 128, January Term, 1852, tried yesterday, cannot he used as a defence in this action.

      3d. That the contract (to wit, the note) being entire, cannot be divided for the purpose of action or defence.
    Williams, J., admitted the evidence. Exception on part of plaintiffs.
    In a memorandum on a paper-book in the case of Thompson, which was also brought up, it was stated that in that and this case, it was proved that the defendants became possessed of the note offered as a set-off, on 31st October, 1851; viz. prior to the institution of this suit.
    At the foot of the plaintiff’s account, filed with the precipe and bill of particulars, in No. 575, April Term, 1852, was an assignment, viz.: “ For valuable consideration, to us paid by Lewis Cooper, we hereby assign, transfer, and set over, unto the said Lewis Cooper, the amount of the above account and claim, due to us by and from Myler & Aber, and authorize the said Lewis Cooper to use our names to sue for and collect the same.
    Signed, James R. Smith & Co.”
    There were two subscribing witnesses.
    The plaintiff’s counsel offered in evidence the said assignment, for the purpose of showing that Cooper became the assignee of the claim before the defendants became the purchasers of the note, part of which was attempted to be set off.
    It was objected to for the reasons, that the assignment was not proven; that the filing of the assignment did not dispense with the proof of its execution by a subscribing witness; and further, that there is no evidence that Cooper paid value therefor, nor is there any offer to show payment of consideration.
    The Court sustained the objections, and plaintiff’s counsel excepted.
    The defendants then called John Thompson, who proved the sale of the note by the agent of Stuart and Brother, to himself and the defendants, and their respective interests therein, as before stated. The case was closed on both sides.
    March 31, 1853, verdict for defendants.
    Error was assigned to the admission of the note, and to the rejection of the assignment.
    G. P. Hamilton, for plaintiffs in error.
    Set-off is, in substance, a cross action for an entire demand, and must be prosecuted for the whole claim: 1 Harris 554, Pennell v. Grubb; 9 Watts 567, Good v. Good. In this case it was attempted to make the note the subject of three cross-demands in favor of as many different parties.
    2. The note was finally disposed of, in the action between the plaintiffs and John Thompson, in No. 128, January Term, 1852, tried immediately before the present action, and before the same judge. The presumption was. that in that ease the whole claim was disposed of: 2 Strange 1259. The jury was bound to dispose of all of it, and to give a certificate for any balance: 9 Watts 567; 1 Jones 243.
    3. The division of the note between Thompson and Myler & Aber prevented either party from using it as a set-off, because thereby, the mutuality of indebtedness was destroyed: 14 Ser. & R. 301.
    The assignment to Cooper was some evidence of consideration, and the burden of proving the contrary lay on the opposite party.
    Selden, for defendants.
    The possession of the note, it being negotiable, was evidence of ownership.
    2. That the note was offered in defence in the action of the same plaintiff v. John Thompson, was not a sufficient reason why it should not be used in defence in this action. Part of it, to the amount of $1150.20, belonged to the defendants, the residue to Thompson. One of two partners with the assent of his copartner may use a joint claim by way of set-off or equitable defence: 7 Watts 464, Wrenshall v. Cook & Schoyer; 2 Barr 264, Craig v. Henderson; 2 Jones 347, Solliday v. Bissey; 5 Wharton 379, Tustin v. Cameron. The jury, under the direction of the Court, may do equity as to costs: 5 Ser. & R. 200, Hart v. Porter.
    John Thompson, the other party interested in-the note, was a witness, and proved the separate interests of himself and the defendants. '
   The opinion of the Court was delivered, September 22, by

Woodward, J.

These were actions on the case for goods sold and delivered, both of which were tried at the same time, March 31, 1853, on pleas of set-off and payment with leave. The plaintiffs having proved the cause of action, the defendants, to support their plea of set-off, offered in evidence a promissory note of James R. Smith & Co., dated March 7,1851, at eight months, for the sum of $2341.51, payable to the order of Stewart & Bro., and by them endorsed without recourse,” and they alleged that $1150.20 of said note, with interest, was due and payable to them, and that the residue thereof belonged to John Thompson. To this offer the plaintiff interposed three objections:

1. That there is no evidence that part of said note belongs to the defendants.

2. This note having been offered in evidence under the pleas of payment and set-off in the suit of the present plaintiffs v. John Thompson, No. 128, January Term, 1852, tried yesterday, cannot be used as a defence in this action.

3. That the contract (to wit, the note), being entire, cannot be divided for the purpose of action or defence.

The opinion of the Court in overruling these objections, and admitting the evidence, is the first error assigned on this record. Was there error in- this ?

The first of the above objections was obviated by the defendants subsequently calling John Thompson as a witness, who proved the sale of the note by the agent of Stewart & Bro. to himself and the defendants, and that their respective interests therein were as above stated. At the time the note was offered, the defendants stood as sole endorsees, and of course entitled to appropriate the whole of the note, but they subsequently explained by evidence what they had previously alleged as to the extent of their interests. That they did not give this evidence before they offered the note, is no just ground of complaint. When a party’s ease consists of several connected but distinct facts, he must be permitted to prove them pari passu, and the order of their proof is generally matter of professional taste. When they have all been proved, it is no ground of error that the last was not first and the first last.

The matter of the second objection would have been properly offered by way of replication to the defence, but it was out of time and place as an objection to evidence. The Court could not stop the regular course of trial for the purpose of receiving evidence from the plaintiff of the suit against Thompson, and what was adjudicated therein. As well might a defendant who is sued on his bond, object to its going in evidence because he could show a former recovery, or that it had been paid. Such a mode of trying causes would withdraw the facts of every ease from the jury, and precipitate the Court into the decision of them on questions of evidence. The Court was right in-turning a deaf ear-to this objection. They could not deal with it as a question of evidence. Had the plaintiff offered it as rebutting evidence after the defendants had closed their case in chief,'the questions that have been discussed before us would have been properly raised, but no such offer was made, and consequently these questions are not regularly here. It may be added, however, that we do not think the record of the suit against Thompson, had it been offered when it might have been received, would have taken away the defendants’ set-off. Set-off, beyond the letter of the statutes, is an, equitable defence, and equity regards the substance of things rather than their form. The interests' of these defendants in the note could not, without their consent, have been set off by Thompson in his suit, and as there is no allegation of such consent, there can be no presumption of such set-off. And though these separate interests would have been compelled to unite in an action at law for the recovery of the note, yet they may sever by way of set-off, for if they owned the note in the proportions stated, it is against equity that the defendants should be compelled to pay money to the plaintiffs, which they honostly owed to the defendants. Beside, allowing Thompson to set off his share of the note against the plaintiffs in the action referred to, and the defendants to set off their share in the present suits, was well calculated to prevent circuity and needless costs with safety and convenience to all parties ; and the practicability of this, said Chief Justice Gibson in Tustin v. Cameron, 5 Wharton 380, is what determines the question of set-off. He adds, that an increasing liberality has greatly but cautiously enlarged the doctrine within a few years past.

This perhaps is enough to be said on a question which, though argued, is really not in the record.

The third objection is answered in the observations already made It is true the note could not be divided for the purpose of action, but it may for defence under the equitable plea of set-off. The saying that set-off is a cross action is true for some purposes, but it must not be understood absolutely. There are several vital distinctions. There cannot be set-off against set-off: Ulrich v. Berger, 4 W. & Ser. 19. In a suit for a chose inaction, the plaintiff must have a legal title, or use the name of him in whom the legal title is; but a defendant by way of set-off may use a chose which has been only equitably assigned to him: Murray v. Williamson, 3 Bin. 135. Again: In an action on contract, all the parties in interest must join ; but it has been several times decided in Pennsylvania that a joint claim may be set off by one of the owners in an action against him for his own proper debt, provided he have the express assent of his copartners, and there are no third interests to be prejudiced: Wrenshall v. Cook & Schoyer, 7 W. 464; Tustin v. Cameron, 5 Whar. 380; Craig v. Henderson, 2 Barr 261; Solliday v. Bissey, 2 Jones 347. And this assent may be given after action brought, and the jury may under the direction of the Court do equity as to costs: Hart v. Porter, 5 Ser. & R. 200. Thus it appears there are essential distinctions between actions and set-offs, and the proposition that an entire contract cannot be divided for set-off, because it cannot for action, is a non sequitur. The precise point ruled here has not perhaps been decided, but we have no doubt that on the general principles of law and equity which have been recognised in Pennsylvania as applicable to set-offs, it was quite competent for each of the owners of this note to avail themselves of their respective interests in it against the actions of the plaintiffs.

The second error assigned is for rejecting the assignment of 29th October, 1851, James R. Smith & Co. to Lewis Cooper, of the claim in the second of the above-named suits. The objection was that it was not proved. There were two subscribing witnesses, neither of whom was called, nor their absence accounted for. Of course the Court could not admit the paper in evidence. The filing the assignment with the precipe did not dispense with the necessity of proving its execution before it could be put in evidence.

On the whole, we are of opinion there is no error in these records, and the judgments are accordingly affirmed.


text:
    Larimer’s Appeal.
    1. The sheriff made a special return in favor of the lien of a purchaser at his sale, in pursuance of the Act of 20th April, 1846, and exceptions to it were taken by a creditor, which on reference to an auditor were ascertained to be unfounded: Held, that the party excepting ought to pay the costs of the audit unless he satisfied the Court that he had probable cause to object to the return.
    2. The sheriff’s return was in favor of the holder of a mortgage for the purchase-money, the sale having been under a judgment on one of the notes secured by the mortgage: Held, that the circumstance that the other notes secured by the mortgage were not due at the time of the sale furnished no probable ground for disputing the right of the mortgagee to the money.
    3. A judgment, entered after the recording of a mortgage for purchase-money, acquires no priority over the mortgage by reason of its entry before the judgment on the bond or notes secured by the mortgage.
    Appeal from the decree of the District Court of Allegheny county.

    William Larimer, junior, by deed dated April 1, 1848, conveyed certain real estate to M. & J. Breidenthal, and took their promissory notes for the purchase-money, secured by mortgage of the premises sold. “The mortgage was duly recorded.

    On 11th June, 1851, Haigh, Hartupee & Co. obtained a judgment against M. & J. Breidenthal for §1776.97. On same day, a fi.fa. was issued, under which certain personal property was sold; and an alias fi. fa. was issued, on which the premises sold by Larimer were levied on. Those premises were sold on 21st January, 1852, and were purchased by Haigh, Hartupee & Co., for $2100. The sheriff made a special return that he had applied to the judgment of Haigh, Hartupee & Co. sufficient to pay it; and that there remained in his hands $215.83, which was paid into Court. To this return exception was filed on part of H. Breidenthal; and after the report of an auditor, the Court ordered the money to he refunded, or the premises to he resold.
    During these proceedings, viz. on June 8, 1852, Larimer obtained a judgment against M. & J. Breidenthal on one or more of his promissory notes secured by the mortgage. The mortgage was not then suable, and would not be for about two years or more.
    On the judgment of Larimer a vend. exp. issued. An al. vend.

      exp. also issued on the judgment of Haigh and others. The property was sold under both writs, and Larimer became the purchaser at $5000. The amount of his mortgage or claim was not stated on the paper-book, but it was stated that the sheriff made a special return under the Act of 20th April, 1846, that he had sold the property to William Larimer, the plaintiff in the execution, for $5000, and it appearing from the lists of liens that he was entitled to the proceeds of sale, and he having paid the costs, the sheriff took his receipt for the residue of the purchase-money in pursuance of the Act of Assembly.
    To this return exception was taken on the part of Haigh & Co. An auditor was appointed, who reported that the return of the sheriff was correct, and “ that the auditor’s fees and expenses, amounting to $58, be paid out of the fund for distribution.” To this report, as respected the charge of the auditor and expenses, exception, on part of Larimer, was filed. The Court overruled the exception and confirmed the report; and from such decree appeal was taken on part of Larimer, the mortgagee.

      Mellon and Negly, for appellant.
    It was not denied that in Chancery practice, the Court had a certain discretionary power as to costs, but it was said that this was a legal discretion, and that in equity practice, such decree was subject to revision on appeal: 3 Daniels’ Ch. Pr. 54. The rule of the civil law, vietus victori in expensis condemnatus est, is the general rule in the Court of Chancery as well as in Courts of law, at least to the extent of throwing it upon the failing party to show the existence of circumstances to displace the primd facie claim to costs given, by success, to the party who prevails: 3 Dan. Ch. Pr. 6.

      Rogers and Barton, for appellees.
    It was said that the judgment of Haigh & Co. was obtained a year before that of Larimer; and that it did not appear previous to the hearing before the auditor, that the judgment of Larimer was on a note secured by the mortgage : that, thus, there was probable cause for resisting the appropriation made by the sheriff.
   The opinion of the Court was delivered, September 22, 1853, by

Lewis, J.

Where a sheriff makes a special return in favor of the lien of a purchaser at his sale, in pursuance of the act of 20th April, 1846, and exceptions are taken to it by a creditor, which, on reference to an auditor, are ascertained to be unfounded, the party excepting ought to pay the costs of the audit, unless he satisfies the court that he had probable cause to object to the return.

Where the sheriff’s return was in favor of the holder of a mortgage for the purchase-money, and the sale was under a judgment on one of the notes secured by the mortgage, the circumstance that the other notes secured by the mortgage were not due at the time of the sale furnishes no probable ground for disputing the mortgagee’s right to the money. This question had been fully settled long before it was again presented for decision in the present case. It had also been settled long before these exceptions were filed, that a judgment entered after the recording of a mortgage acquired no priority over the mortgage by reason of being entered before the judgment on the bond secured by the mortgage.

In this case there had been a previous sale to the party excepting, and an investigation of the facts upon which that sale was set aside because the purchasers were not entitled to the money on their judgment and refused to pay it into court for the benefit of the rightful claimant. Under such circumstances, their subsequent litigation of the question was altogether indefensible. It is true they had a right to he heard again, if they desired it; hut it is unreasonable in them to expect to enjoy the luxury of litigation at the expense of others.

The special circumstances of this case are strongly against the party excepting to the last return of the sheriff; hut we do not put the ease upon them. On the contrary, we put the decision upon the general rule, that, in such a contest, the losing party ought to pay the costs, unless he can show clearly that there were special circumstances to create probable cause for disputing his adversary’s claim. It is the interest of the public and the duty of the court to discourage all unnecessary litigation. The imposition of the costs upon the party found to be in the wrong promotes that result, and the rule should be strictly adhered to.

Decree reversed, so far as it directs the payment the costs out of the fund, and decreed that Haigh, Hartupee & Co. pay the costs of the audit.


text:
    Perry’s Appeal.
    Four mortgages of the same premises were executed, all of the same date, all recorded as of the same day, and each securing a bond for $300, being part of the purchase-money of the mortgaged premises, one of the bonds being payable in one year, and one of the others in each of the three years next succeeding. Before either was due, the mortgage first to become due was assigned, and about three months afterwards the other three mortgages were assigned to another person. The premises were sold, on a vend, exp., issued on a judgment on the hond secured hy the mortgage first assigned, for a sum insufficient to pay all of the bonds:

      Held, that the net proceeds of sale of the mortgaged premises were distributable pro rata amongst the said assignees; the mortgage first assigned was not entitled to preference.
    Appeal from the decree of the District Court of Allegheny county.

    This was an appeal by Mary Perry from a decree of distribution of certain proceeds of sale of real estate, sold on vend. exp. to April Term, 1853, in name of James Carnahan for use of William Dilworth v. Emanuel Dyer: issued on a judgment obtained on a mortgage bond. On 24th June, 1853, the sheriff paid into Court $337, stated to be the proceeds of sale.
    A decree as follows, was made:—
    “ And now, July 23, 1853, it appearing to the Court, that the real estate sold by virtue of the above writ of vend, exponas was, at the time of the sale, subject to the lien of four mortgages, executed by the above defendant, Emanuel Dyer, to William McGrilvery, bearing date Oct. 21, 1851, and recorded January 10, 1852, &c.; which said mortgages were given to secure the payment of three hundred dollars each, and were payable respectively, as follows, to wit: Oct. 21, 1852; Oct. 21, 1853; Oct. 21, 1854, and Oct. 21, 1855 ; being the purchase-money of said mortgaged premises. And, it further appearing, that the mortgage payable Oct. 21, 1852, was assigned by the said William McGilvery to the above-named plaintiff, James Carnahan (who sues for the use of William Dilworth, Jr.), on the 21st day of May, 1852 ; and that the other three mortgages were assigned by the said mortgagee to Mrs. Mary Perry (the purchaser of the said mortgaged premises, under the above writ of vend, exponas), on the 24th day of August, 1852. And it appearing to the Court, that the judgment upon which the writ of vend, exponas issued, was obtained upon the bond secured by the mortgage first becoming due, and payable and assigned as aforesaid (prout record), and that there are no other liens against the said premises, other than the mortgages aforesaid. It is therefore ordered, adjudged, and decreed, that the money arising from the sale of the said mortgaged premises, under and by virtue of the said writ of vend, exponas, and now in Court, be distributed as follows, viz.:
    1st. To the payment in full of the debt and interest, and costs of the judgment in favor of Jas. Carnahan, for use of William Dilworth, Jr., No. 707, November Term, 1852, the same having been obtained upon the bond secured by the mortgage first assigned, and first becoming payable as aforesaid; and the residue thereof, if any, be distributed pro rata to the three mortgages assigned to Mary Perry, as aforesaid. And the prothonotary is directed to make the proper calculations of interest on the said debts respectively, to the day of sale, and ascertain the amounts thereof respectively at said date, and pay the same in the above-mentioned order, to the parties entitled thereto, or their attorneys, within twenty days from the date hereof, unless, in the mean timé, an appeal shall he taken by some of the parties interested, from the foregoing decree of distribution, pursuant to the statute.
    It was assigned for error, that the Court erred in decreeing the money to the plaintiff; that it should have been distributed pro rata among the four mortgages.

      Hampton and Woods, for plaintiff in error,
    cited Donley v. Hays, 17 Ser. & R. 400; 5 Barr 418, Mohler’s Appeal. In Pennsylvania the assignment of a judgment does not imply a guarantee.

      Shinn and Alden, conta.
    In the case of Donley v. Hays, there was but one mortgage, an entire security. In this case there were four distinct mortgages. In Mohler’s Appeal, 5 Barr 418, the decision was placed on the ground of intention to share the proceeds of sale. In this case no such intention was manifested at the time of the first-assignment; there was no reservation of a right to claim a pro rata share of the proceeds of sale of the mortgaged premises. The assignor was the mortgagee. All the mortgages were extinguished by the sheriff’s sale.
   The opinion of the Court was delivered, September 22, by

Woodward, J.

In Donley v. Hays, 17 Ser. & R. 400, a mortgagee holding seven bonds for instalments of the debt secured by the mortgage, assigned and transferred four and retained three of the bonds to himself; and on sale of the mortgaged premises, the fund produced being insufficient to pay the whole mortgage debt, it was held, by a majority of this Court, that there was no priority among the assignees, and no equity in their favor as against the mortgagee—that the word “ assign” implied no guarantee--and that the several assignees and the mortgagee were alike entitled to come in and share the fund pro rata according to the, bonds held by them respectively. Mr. Justice Todd supported these conclusions in a clear and well stated opinion, which, however, was somewhat shaken by the dissenting opinion of Chief Justice Gibson, and afterwards almost overthrown by the formidable assault made upon it by Mr. Justice Kennedy in Cowden’s Case, 1 Barr 278. But in Mohler’s Appeal, 5 Barr 420, Mr. Justice Rogers said, with the acquiescence of the whole Court, that upon further examination and consideration they were persuaded Donley v. Hays was correctly ruled, and they adopted it as the law of the case they were considering. It has moreover been recognised in a variety of other cases, and implicitly followed in some of them: Betz v. Heebner, 1 Penn. R. 280; Caneghan v. Brewster, 2 Barr 43; Yarnell’s Appeal, 3 Barr 364; Bank v. Chester, 1 Jones 290.

A doctrine that has been thus settled, vindicated, and followed, is entitled to respect from us, whatever we may think of the comparative value of the reasonings which have been urged for and against it. Were it an open question, we might possibly hold that successive assignees of fractional interests of an integral debt, were entitled to share in the pledged fund according to the order of the assignments; but we consider it settled law that there is no right of priority among them, and the only question is whether there is anything in the case before us to take it out of the rule.

The circumstance which distinguishes this case from Donley v. Hays, is that here mortgages instead of bonds were the subject of the assignments, but we think this does not affect the principle settled. When a mortgage debt is split into instalments, the most usual course is to take a bond for each instalment, and a mortgage as security, for the sum of the bonds ; but the transaction is essentially the same if a mortgage be taken for each instalment. Mortgages in Pennsylvania, though formal conveyances of land, are really only money securities like bonds, and may be assigned like other choses in action. When instalment bonds are assigned, they pass, by relation, an equivalent portion of the mortgage debt, but here a fourth of the mortgage debt was directly transferred by the assignment of each mortgage. The object and the result are the same in both instances, though attained more directly in the one than in the other.

Here the four mortgages were executed and recorded at the same time, describing the same land, and securing parts of the same debt; and upon the principle of Hays v. Donley, the assignees stand in equal equity in respect to the fund in contest. The court erred therefore in giving a preference to the first assignee, and the decree must be reversed, and the fund in court decreed to the assignees pro rata.


text:
    Calhoun versus Logan.
    1. In an amicable action entitled against L. and C., C. alone appeared and confessed judgment against both, there being no evidence of notice to L., or of authority by him to C. to confess the judgment:-Held, that though the judgment was valid against C. who confessed it, it was invalid as against L.
    2. The judgment being invalid against L., did not warrant the attachment of a judgment in his favor against a third person; and it was Held, that the payment of the amount of it by the defendant therein to the attaching creditor, after judgment against the bail of the said defendant on his recognisance for stay of execution, would not relieve the bail from the claim of the plaintiff in the judgment.
    3. In a scire facias against the bail in the said judgment, oh his recognisance for stay of execution,, the reeognisor plead the said attachment, and judgment therein against him by the alderman: it was Held, that if the recognisor had any relief, it could have been had only by appeal from the judgment of the alderman, and not by motion to the Court of Common Pleas after transcript of a judgment against him on his recognisance had been filed therein.
    4. The evidence submitted to the Court of Common Pleas, on the hearing of a motion or a rule to show cause, is not part of the record, nor the subject of a bill of exceptions j and, therefore, is not examinable on a writ of error.
    Error to the Common Pleas of Allegheny county.

    James Logan obtained judgment before an alderman against John McDowell, on 10th June, 1851, for $15 ; and on same day, John Calhoun became bail by recognisance for stay of execution.
    An amicable action was entered into before another alderman, in a suit entitled N. B. Craig & Son v. James Logan and John Calhoun. It was stated on the docket that on June 7, 1851, parties appear and defendant, J. Calhoun, for himself and James Logan, voluntarily confesses judgment to plaintiffs for $12 and costs of suit, &c.
    On Oct. 27, 1851, an attachment execution issued against John McDowell, as garnishee of James Logan and John Calhoun. Nov. 3, 1851, John McDowell appeared and testified that at the time of the service of-the attachment he was indebted to Logan and Calhoun the sum of $15, and the alderman entered judgment against him for $15.' On February 5, 1852, execution issued, and on February 17,1852, McDowell paid the debt, interest, and costs.
    It did not appear that Logan appeared in person to the suit of Craig k Son, nor was any authority in Calhoun, to appear for him and confess judgment, set forth.
    A scire facias on the recognisance of Calhoun as bail of McDowell, was issued in favor of Logan, on 30th January, 1852. On 5th February, 1852, the parties appeared, and Calhoun the defendant plead that an attachment for $15 had been served on McDowell, on a judgment against Logan and Calhoun (meaning the judgment in favor of Craig & Son), and that a judgment for that amount had been entered against him (Calhoun) by the alderman. Notwithstanding the plea, judgment was rendered for plaintiff for $16.55, and costs. On 16th February, 1852, this judgment was assigned by Logan to William Shields. Calhoun, the defendant, took an appeal, but it was not afterwards entered in the Common Pleas.
    Shields, the assignee, took a transcript of the judgment against Calhoun, and had it filed in the Common Pleas, and a fi. fa. was issued.' Calhoun then had a copy of the record of the attachment in favor of Craig & Son filed in Court, and obtained a rule to show cause why the judgment against him in favor of Logan should not be marked satisfied. January 31, 1853, the rule was discharged; and afterwards .this writ of error was taken.
    It was, inter alia, assigned for error, that the Court erred, in discharging the rule to show cause.

      Barton, for plaintiff in error.

      Mellon, contà.
   The opinion of the Court was delivered, September 22, by

Lewis, J.

On the 10th of June, 1851, Logan obtained a judgment before an alderman, against McDowell, for $15; and, on the same day, Calhoun, the plaintiff in error, became bail for the stay of execution. On the 30th of January, 1852, Logan issued a scire facias against Calhoun, the bail of McDowell, and on the 5th of February, 1852 (the appearance day), Calhoun pleaded an attachment execution at the suit of Craig & Son, founded on an alleged judgment obtained by them against Logan and Calhoun. The alderman, on examining into the ease, gave judgment in favor of Logan against Calhoun. The latter gave bail for an appeal, but did not think proper to enter his appeal on the docket of the Common Pleas. Logan issued execution on the 28th of April, 1852, but the constable returned “JSFo goods." A transcript was filed in the Common Pleas on the 29th of May, 1852. On the 17th July, 1852, Calhoun obtained a rule to show cause why the judgment should not be marked “ satisfied.” This rule was discharged by the court below, and the writ of error is taken to reverse that decision.

It is plain that if the attachment at the suit of Craig & Son, furnished any defence to the scire facias, it was the business of Calhoun to plead it before the alderman. He did so, but the alderman decided against him. What then ? Undoubtedly it was his proper course, if he thought the decision unjust and erroneous, to appeal to the Court of Common Pleas. This he undertook to do, and entered bail to prosecute his appeal with effect. But he neglected or declined to enter the appeal on the docket of the Prothonotary, so as to make it effectual. Why did he decline to perfect his appeal ? An examination of his defence may furnish a satisfactory answer. The judgment which he pretended had been recovered by Craig & Son against Logan and Calhoun was no judgment at all, so far as Logan was concerned. Ho writ had been served upon, or even issued against Logan. It does not appear that Logan had any notice whatever of the suit of Craig &. Son. On the contrary, the record exhibits nothing but an amicable action in which Calhoun himself, without authority from Logan, confessed a judgment in favor of Craig & Son. This judgment is good against Calhoun, but it is not a judgment against Logan. Nor is it any evidence that Logan was indebted to Craig & Son. As the latter had no judgment against Logan, they had no right to issue an attachment execution against him. They could not, under such a void proceeding, attach his demand against McDowell. Such an attachment would be no defence to McDowell. There is still less reason for permitting Calhoun, who concocted it, to take advantage of his own wrong. If Craig & Son have any claim against Logan, common justice requires that the latter should have an opportunity to be heard, before a judgment can be rendered against him. Those who seek to deprive him of that right, furnish just ground for doubting the merits of their demands. And from the facts before us we think that Mr. Calhoun exercised a wise discretion in declining to enter his appeal. As his defence could not stand the scrutiny of a trial by jury, it was judicious in him to avoid the expense of it. Can he have any better success in the form of a rule to show cause ? He may save expense, but he cannot defeat the plaintiff below, for the reason that his defence is unjust and illegal, and is not available in any form. As the judgment is good only against Calhoun, who confessed it, the voluntary payment of it by McDowell, was nothing more than’ the payment of Calhoun’s debt to Craig & Son. Surely Calhoun cannot set up the payment of his own debt to Craig & Son, as a reason why he should not pay what he owes to Logan.

We have shown that Calhoun has no defence in any form. But were it otherwise, the attachment was only pleadable in abatement or in bar, as the circumstances required. If the plea was not sustained by the alderman, the remedy was an appeal. Having abandoned that, the judgment of the alderman became conclusive on all defences which might have been urged before its rendition. By declining to enter his appeal he lost his day in court, and with it the right to examine the facts of his case on a writ of error. We have shown that the payment of Calhoun’s debt to Craig & Son, after the judgment in this case was given by the alderman, constituted no defence. But were it otherwise, the evidence of that payment is not judicially before us. The evidence laid before the Common Pleas on the hearing of a motion or a rule to show cause is not part of the record; nor does the statute giving bills of exceptions, apply to such a case. We are therefore without any legitimate means of examining into the propriety of the judgment of the court below. From what we see, however, there is' nothing, to rebut the presumption that justice has been done to the parties. There is nothing on the record to impugn the decision, and it is therefore affirmed.

Judgment affirmed.


author: Knox, J.

text:
    Logue’s Appeal.
    If a promise, by the purchaser at a sheriff's sale of real estate, to pay a judgment if the judgment-creditor or his attorney cease bidding on the property, be valid, the remedy is by action at law; an auditor appointed to report distribution, has no power to disregard the prior lien of the purchaser on such a ground.
    This was an appeal by Cormack Logue, from the decree of the District Court of Allegheny county, directing distribution of proceeds of sheriff’s sale of real estate of John Gall.
    The sum of $781.97 was paid into Court for distribution. An auditor was appointed. Clarence Shaler was the purchaser of the property.
    The money was claimed by Clarence Shaler, as the assignee of a judgment in favor of George Ledlie, which was the first lien on the premises. Before the auditor this judgment was objected to and asked to be postponed in favor of a judgment of Logue, the appellant. Before the auditor, Mr. Woods, who had been counsel for Logue, alleged that an understanding existed between him and Clarence Shaler, at the time of the sale, that the judgment of Logue should he paid; and that on that account, he, Woods, ceased to bid for the property; that he was at the time bidding on the property at his own instance, so as to cover Logue’s judgment, and intended to buy it, if it went for a sum insufficient to cover that judgment, he alleging that he knew that it was worth more than was sufficient for that purpose.
    In the counter-statement it was denied that any promise was made by Shaler to pay Logue’s judgment, or any agreement made that it should he paid. It was further stated that Shaler attended the sale as the attorney of Ledlie, without any other intention than to bid the property so a,s to cover that judgment. That after the sale he procured the judgment of Ledlie to be assigned to him so as to avoid the necessity of paying to the sheriff the purchase-money, so far as that judgment was concerned.
    The auditor decided that he had not the power to disregard the judgment in favor of Ledlie, and he reported in fa.vor of that judgment. Exception was taken to such report, hut the Court overruled the exception and confirmed the report; and from such decree this appeal was entered. The decree was the subject of exception.

      Mellon and Negley, for appellant.
    It was alleged that by the 86th section of the Execution Act of 16th June, 1836, the Court had power to hear and determine disputes concerning the distribution of money arising from a sale upon execution, according to law and equity. Also cited Kelley’s Appeal, 4 Harris 59; 5 Id. 484, Brown’s Appeal.

      McConnell, contrà.
    It was, inter alia, alleged that if a promise was made in favor of Logue, the proper remedy was by action, where a trial by jury might be had. That an auditor had no power to prefer a younger judgment to an older one, upon an allegation which was disputed.
   The opinion of the Court was delivered, September 27, by

Knox, J.

This is an appeal from the decree of the District Court of Allegheny county, on the distribution of a fund raised by the sale of the real estate of John Grail.

The court below, upon the report of an auditor, decreed in favor of a judgment belonging to Clarence Shaler, from which decree Logue appeals.

It is admitted that Shaler’s judgment, as it stands upon the record, has priority of lien; but the appellant alleges that when the property was being sold, Mr. Woods, his attorney, who was attending the sale for the purpose of protecting his interest, was induced to cease bidding, upon the promise of Shaler that his (Loguo’s) judgment should be paid. This is denied by Shaler.

It is unnecessary to determine in this proceeding, whether an agreement by one judgment creditor, to pay a subsequent judgment upon consideration that its owner would refrain from bidding at a sheriff’s sale, would be binding in law.

If such an agreement was made, and if valid when made, the remedy is by an action at law. An auditor, in distributing a fund in court, must sometimes determine controverted facts. But this is from necessity. Where such necessity does not exist—Where there is ample remedy by action at law, the constitutional tribunal for the determination of facts should be resorted to.

The decree of the court below is affirmed at the cost of the appellant. Decree affirmed.