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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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respected the Philadelphia Savings Institution and Messrs. Gill,
Bell and Lawrence the assignees.

The case was argued by Mr. T. I. Wharton, for the motion, and
by Mr. Hare and Mr. Williams, in support of the injunction.

The opinion of the court was delivered by

SERGEANT, J. This case has involved the discussion of a great
variety of topics, as well on the merits as on the equity practice,
all of which, however, must necessarily be subordinate to the prin-
cipal question, whether the court has jurisdiction ? For the legis-
lature have by no means conferred on. us an universal, or even a
general equity jurisdiction, as seems to have been conceived by
some, and may be inferred from several instances of the same kind
in which suitors have thought fit to apply to the equity jurisdiction
*^411 f our *courts. On the contrary, equity jurisdiction has been
J dealt out to us at distant intervals and in limited portions, arid
we cannot usurp a jurisdiction not granted, nor exceed the limits within
which the legislature has thought proper to prescribe it. It is true, it
has become a task of some nicety to extricate from the great mass of
equity jurisdiction exercised in other states and countries, that por-
tion of it which has been conferred upon us: but it is our duty to
encounter this task, and we would not be justified in enlarging our
jurisdiction beyond the plain and obvious meaning of the legis-
lature. If they had designed to bestow on this court, and the Court
of Common Pleas, universal or even general jurisdiction in equity
cases, however we might have thought it inconvenient and ill suited
to the Supreme Court in its present organization, and likely to
prove exceedingly oppressive and dangerous to the community, we
should not have declined to exercise it. But it is clear they did
not mean so to do, but intended to bestow a limited and selected
portion of equity power, deemed to be suited to present exigencies.

Certain portions of equity jurisdiction are recognised in the con


[Gilder v. Merwin.J

stitution ; and other portions, in regard to guardians, executors,
administrators and intestates' estates, have long been exercised by
the Orphans' Court, and by this court on appeal, during provincial
times and since. About the year 1818, the legislature began to
extend it to assignees and trustees ; but the first extensive grant of
this jurisdiction was by the act of 16th June 1836, for the organiza-
tion of courts, in one of the revised codes of the state, in which
the powers of injunction, discovery, interpleader, supervision and
control of corporations and partnerships and trusts, were given to
this court and to the Common Pleas to a much larger extent in
the city and county of Philadelphia than in the commonwealth at
large. Then came the act of 13th June 1840, by one section of
which the equity power is still further extended : and within one
of these latter acts, the jurisdiction in cases like the present must
be brought, if maintainable.

As a bill for an injunction, it seems to us that the present bill
cannot be sustained ; for the act of 16th June 1836, sec. 13, con-
fines the jurisdiction of this court in injunction cases, to the
prevention or restraint of the commission or continuance of acts
contrary to law, and prejudical to the interests of the community
or the rights of individuals. It cannot be seriously contended that
the issuing execution on a judgment confessed in a court of law is
an act contrary to law. Injunctions on equitable grounds are
grantable by this court only where they are incidental to the relief
prayed for, and where that relief is within our jurisdiction by the
acts of assembly.

Nor is it maintainable as a bill for discovery merely ; for by the
same act, sec. 13, that jurisdiction is extended only to the discovery
of facts material to a just determination of issues and other ques-
tions arising or depending in this court or the Court of Common
*Pleas of this county ; l whereas the judgment was confessed r*
in the District Court ; and that court has, by the same sec- '
tion, jurisdiction in cases of discovery fully adequate to the purpose
of suits pending there. 2

As a bill for relief, if maintainable at all, it must be under the
provisions of the 39th section of the act of 13th June 1840, which
enacts that "the equity jurisdiction of the Supreme Court within
the City and County of Philadelphia, and the Court of Common
Pleas for the said county, shall be extended to all cases, over which
courts of chancery entertain jurisdiction on the grounds of fraud,

1 || The act 10 April 1848, ? 4, P. L. 449, Purd. (ed. 1873) 592, pi 6, pave
the Supreme Court and the Court of Common Pleas in Philadelphia county,
the same jurisdiction in suits pending or to he brought for the discovery of
facts, as are possessed by courts of chancery. ||

1 See 5 Whart. 470.

542 SUPREME COURT [March Term,

[Gilder . Merwin.]

accident, mistake or account." The word fraud, 1 here, seems to
contemplate only actual fraud, and not the extensive heads of equity
jurisdiction, which are termed constructive fraud, or bills for pre-
vention of fraud, embracing injunctions, bills for partition arid
dower, bills to marshal assets, bills of discovery, of interpleader,
&c. ; and various others of which Haddock in the first volume of
his treatise on Chancery Jurisdiction, enumerates sixteen heads,
each of great compass and extent, many of which are provided for
by special acts of assembly, and in others the jurisdiction has been
long exercised by the orphans' and other courts. There is no fraud
alleged in this bill against any of the defendants except Mrs.
Merwin. West has not been served with a subpoena, being, as the
plaintiff alleges, out of the jurisdiction of the court. If the case
falls within the act at all, it would seem to come rather within the
jurisdiction in case of accident or mistake. One ground relied on
for relief is, that the plaintiff, after the confession of a judgment on
his bond, in favor of the Savings Institution, discovered facts and
evidence of which he was ignorant at the time of the confession,
which would have been an available defence for him, in case he had
made a defence to the suit on the bond, and gone to trial on the
merits ; namely, that the Savings Institution had given time to
West by taking renewals of his notes ; whereby the plaintiff, who
was only a surety, was discharged. This ground of newly dis-
covered facts, is called a bill for a new trial.

These heads of fraud, accident, mistake and account are the
heads with which our ordinary treatises on equity jurisdiction begin,
and they are those which Mr. Justice Story in his very able Com-
mentaries on Equity, vol. 1, 85, 86, considers as peculiarly appro-
priate to a chancery jurisdiction, and standing most in need of
the peculiar powers of such court ; and that when we depart from
them as the foundations of the bill, it becomes more difficult to
define its jurisdiction. It is possible this may have had its opera-
tion in inducing the legislature to add by this section to its former
grants of equity jurisdiction to this extent and no further. Certain
it is, that if under these words we should carry out our jurisdiction
to the extensive regions to which I have referred, it would be
extremely unsuited to a court which, besides its other pressing
employment in errors and appeals, as well as original process, has
*5431 a vacat i n h ere f eight *months in the year, during which
-" time there must be a suspension of all proceedings in court,
and irreparable mischief may be done by injunctions issued and
other proceedings instituted without the power to control them.
The nature of the business of a Court of Equity is such as to require

1 || Construed by act 16 April 1845, 3, P. L. 542, Purd. (ed. 1873) 592,
pi. 5, to give jurisdiction " whether such fraud (accident, mistake, or account)
be actual or constructive." \\


[Gilder v. Merwin.]

daily vigilance at the various stages of suits to prevent extreme
injustice and oppression.

The jurisdiction, therefore, under the act of 1840, must be con-
fined to bills for relief (and injunction, discovery, &c., as incidental
thereto) in cases of actual fraud, accident, mistake and account.
All the other branches to be found in the equity books, not vested
by prior acts of assembly, remain ungranted.

Considering the relief prayed for under this head as within a
liberal construction of the words accident and mistake, it is a de-
cisive objection to the bill, that the plaintiff has a full, adequate
and complete remedy at law, by application to the District Court
in which the judgment was confessed, to open the judgment and let
him into a defence on the merits. That court could not hesitate on
motion, and making out a case entitled to relief, to order the judg-
ment to be opened, and the defendant let into a defence. This is
a jurisdiction which our courts of law have uniformly exercised as
courts of law in numerous cases, and necessarily arises from the
control they have over judgments entered in their own court by con-
fession or otherwise; and on the hearing of such rule, they may
either determine the case on depositions or order it to be tried by
jury, with the benefit to the parties in the latter case of bills of
exception to evidence on the charge of the court as fully as in
other trials by jury. And if a discovery by the oath of a party
is necessary in the District Court, it may be had in the same

That being the case, there is no reason why the party should be
allowed to decline going before the proper legal tribunal, and
receive aid from the equity powers of this court. It is not neces-
sary to him, nor can he derive any peculiar benefits from it. The
principles on which courts of equity proceed are in conformity with
the doctrine. In regard to injunctions after a judgment at law,
says Mr. Justice Story, 2 Com. on Eq. 179, courts of equity will
not relieve against a judgment at law, where the case in equity
proceeds upon a ground equally available at law without any laches
of the party. Nor will relief be granted by staying proceedings
at law, if the party applying has been guilty of laches as to the
matters of defence, or might by reasonable diligence have procured
the requisite proofs. For when a verdict had been obtained at law
against a defendant, and he neglected to apply for a new trial
within the time appointed by the rules of court, a court of equity
would not entertain a bill for an injunction upon the alleged ground
that the original demand was unconscientious, or the subject-matter
of an account, provided it was competent for the party to have laid
those grounds before the jury on trial, or before the court of r#r.AA
law on the motion for a new *trial. Id. 181. And this *

544 SUPREME COURT [March Term,

[Gilder v. Merwin.]

kind of bill, which is called a bill for a new trial, is said to be
watched by equity with extreme jealousy.

Nor can this court take jurisdiction on the ground of fraud,
accident, or mistake, to relieve the surety from liability, where, as
is alleged, he is discharged by time given to the principal. This
does not fall within either of the heads of the jurisdiction I have
mentioned; it is comprehended within the general injunction power
of a court of equity as a means of prevention of fraud, which is
not given to us. The relief, if proper, would also be given by the
District Court if they saw fit to open the judgment, as all our
courts of law apply this equity of the surety wherever a case comes
before them in the ordinary course of their proceedings. The
other grounds stated in the bill, of usury and of the necessities of
exhausting the mortgaged premises first, are liable to the same

Injunction dissolved.

Cited by counsel, 5 W. & S. 481; 6 Id. 466; 7 Ban- 519; 5 Harris 10; 1
Grant 86 ; 10 Casey 383 ; 1 Wright 487 ; 4 P. F. Smith 169, 322 ; 6 Id. 227 ;
9 Id. 222 ; 1 Pars. 425 ; 2 Id. 40 ; || 12 Smith 225 ; 27 Id. 225 ; 16 Id.l56.||

Cited by the court, post 546 ; 3 W. & S. 193 ; 12 Harris 380 ; 5 Casey 384 ;
4 Wright 198; 1 Pars. 41.

|| As to whether our courts would now assume jurisdiction in such a case,
see Ashton's Appeal, 23 Smith 153; Wistar v. McManes, 4 Id. 318; Stock-
dale v. Ullery, 1 Wr. 486. ||

*545] *[PHILADELPHIA, MAT 1, 1841.]

Riley and Another against Ellmaker.


1. One judge of this court has no power to order an injunction in any
instance. It can only be done by the court while sitting in bane, and then
after notice of the motion.

2. An injunction to stay proceedings upon an execution issued upon a
judgment in the District Court, refused ; there being no fraud, accident or
mistake alleged in the bill.

IN this case an injunction had been granted by Judge Kennedy,
during the last vacation, upon a bill filed by Joseph S. Riley and
John A. Brown, against Hannah Ellmaker, executrix of the will
of Levi Ellmaker, deceased.

The bill alleged that certain persons named Britton, Glenn and
Johnson, executed a mortgage to the defendant's testator, to secure
a bond for $2000 ; and a collateral writing, never recorded,
declaring the purpose of the mortgage to be to secure intended


[Riley v. Ellmaker.]

advances to be made in order to enable the mortgagor to build a
house on the premises, the mortgagee reserving the privilege of
making payment directly to the parties furnishing work and
materials for the building so to be erected : that the money was
only partly advanced as agreed; and that the portion of it which
was advanced was not applied to the payment for work or materials,
but was paid directly to the mortgagor without the mortgagee see-
ing in any manner to its application, and with notice of its misap-
plication ; and that the mortgagor was destitute of other means
of paying for the work and materials; that the mortgagee had
proceeded at law against the mortgagor, and obtained judgment on
the mortgage ; after which *under proceedings at the suit r+cig
of a mechanic's lien creditor, the premises had been sold at *-
sheriff's sale to the complainants ; and that the defendant, the ex-
ecutrix of Ellmaker, had issued execution upon the judgment
obtained on the mortgage, and was about to sell the mortgaged
premises, contrary to equity, &c.

Mr. Randall, having moved to dissolve the injunction, on the
ground that it could not be granted by one judge; and that the com-
plainants were not entitled to relief in this court,

Mr. Cadwalader and Mr. Broom, were heard against the motion,
and in support of an application to the whole court, for an injunc-
tion de novo.

SERGEANT, J., delivered the opinion of the court.

The principles settled in the case of Gilder v. The Savings Insti-
tution, rule this case. There is no fraud, accident or mistake, al-
leged in the bill ; and therefore the injunction is refused the case
not being within the jurisdiction of the court. 1

On the other point, we are of opinion that under the plain pro-
visions of the act of 16th June 1836, one judge of this court has
no power to order an injunction in any instance. It can only be
done by the court whilst sitting in bane, and then after notice of
the motion.

Motion for injunction denied.

Cited by counsel, 1 Harris 69 ; || 14 Smith 392. ||

1 A See the act of assembly and cases referred to in notes to the preceding


547 SUPREME COURT {March Term,

*547] *[PHILADELPHIA, MAY 1, 1841.]

McCredy against James and Another.


1 . If the declaration contain several counts, and there is evidence to sup-
port any one count, this court will not reverse, if the count on which judg-
ment is rendered is good.

2. Although a declaration in assumpsit should omit to aver that the
promise was made to the plaintiff, yet it may be good after verdict.

|| 3. A., a consignee of goods, who had made advances, &c., thereon,
accepted an order from the consignor to deliver the goods to B., the latter
paying the advances, &c., and agreed with B. to hold the goods subject to his
order: held, to be a sufficient consideration to support B.'s promise to pay
A. the said advances, &c.||

ERROR to the District Court for the city and county of Philadel-
phia, to remove the record of an action in the case brought by Wil-
liam James and John James, copartners under the firm of Wm. &
John James, against Dennis McCredy.

The declarations in the court below contained five counts.

In the first count the plaintiff declared, that "whereas, hereto-
fore, to wit, on the 1st day of January 1887, one Thomas Fey
shipped from Cincinnati sixteen hundred and twenty-seven kegs of
lard, of which he was the owner, and consigned the same to the
said plaintiffs, commission merchants at New York, who, in con-
sideration thereof, accepted the said Thomas Fey's drafts to the
amount of $6100, and also made advances for the freight on the
sixteen hundred and twenty-seven kegs of lard : that on the 7th
day of February 1887, the said Thomas Fey gave to the said
defendant the following order and bill of sale, by which he trans-
ferred the sixteen hundred and twenty-seven kegs of lard to the said
defendant upon his, the said defendant's agreeing to pay the said
Pontiffs tne *amount of their acceptances of Thomas Fey's
drafts, to wit, $9100, and the freight on the sixteen
hundred and twenty-seven kegs of lard, and commission for accept-
ances ; and which order, transfer and bill of sale is to the follow-
ing effect to wit :

Messrs. William and John James :

Gentlemen You will please deliver to Dennis McCredy, or
order, sixteen hundred and twenty-seven kegs lard, upon its
arrival from New Orleans, he paying the amount of your accept-
ances, not exceeding sixty-one hundred dollars, and freight, com-
mission on acceptances, &c.

(Signed) THOMAS FEY.

Philadelphia, April 4th 1837.


[McCredy v. James.]

"And the said Dennis McCredy, the defendant, afterwards, to
wit, on the 7th day of February 1837, presented to the said
plaintiffs the said order and transfer, or bill of sale to him, of the
said sixteen hundred and twenty-seven kegs of lard, as above set
forth, and thereupon the said plaintiffs accepted the same, and
agreed to be bound thereby, and to acknowledge the said Dennis
McCredy as the owner of the said sixteen hundred and twenty-
seven kegs of lard, on the condition expressed in the said order
and transfer, viz., of his paying plaintiffs' acceptances of $6100,
the freight and commission on acceptances, and agreed to hold the
same subject to the said Dennis McCredy's order in all respects ;
and the said Dennis McCredy then and there accepted to receive
the said sixteen hundred and twenty-seven kegs of lard, on the
terms and conditions as above expressed, viz., of paying to the said
plaintiffs the amount of their acceptances of $6100, and the freight
and commissions on acceptances ; and then and there agreed to,
and with the said plaintiffs, in consideration of their acceptance of
the said order and transfer upon them, by which they were to
deliver to the said Dennis McCredy the said twelve hundred and
twenty-seven kegs of lard, and to hold the same subject to his
order, direction and control, to pay the said acceptances of $6100
as they became due, and to pay the freight and the commissions on
said acceptances. And the plaintiffs aver that they did then and
there offer to deliver, and did deliver, the said sixteen hundred and
twenty-seven kegs of lard to the said Dennis McCredy, and did
hold the same from that time, to wit, the 7th day of February
1837, subject in all respects to his direction, order and control ;
yet the said plaintiffs aver that the said defendant did not, nor has
not, paid the said acceptances of $6100, made on account of the
said Thomas Fey, by the said plaintiffs, as they became due, or any
other time since, nor since paid the freight nor the commissions on
the acceptances as he undertook and promised to do, but has
altogether neglected and refused to comply with his undertakings
in this respect, whereby the said plaintiffs had to *pay the p^q
said acceptances of $6100, together with the freight on the L
said lard, to wit, on the day and year last aforesaid, at the city and
county aforesaid, which, together with the commission to which the
plaintiffs were entitled, amount in all to a large sum of money, to
wit, the sum of $6992 ; and which said sum of $6992 the said
Dennis McCredy ought then and there have paid to the said plain-
tiffs, according to the form and effect of his said promise and
undertaking so made as aforesaid."

The second count set forth that, " in consideration that the said
plaintiffs would accept a certain order drawn on them by one
Thomas Fey, in favor of the defendant, for sixteen hundred and
twenty-seven kegs of lard, and which they had received as the

549 SUPREME COURT [March Term,

[McCredy v. James.]

consignees and commission merchants of the said Thomas Fey, and
upon which they had a lien for the amount of certain acceptances
for which they, the said plaintiffs, had come under for, and on
account of, the said consignor, and on the security so furnished by
the shipment to them of the said sixteen hundred and twenty-seven
kegs of lard as aforesaid ; in consideration that the said plaintiffs
would accept the said order and consent to hold the said lard sub-
ject to the direction, order, and control of the said defendant, he,
the said defendant, then and there undertook and assumed the
responsibility of the payment of said acceptances so made by
the plaintiffs, to the amount of $6100, and to indemnify and save
them harmless in the premises, and also to reimburse them the
amount advanced for freight, and to pay them a certain commission
on said acceptances. And the said plaintiffs aver that they did
accept the said order, and did hold the said shipment of sixteen
hundred and twenty- seven kegs of lard from that time, to wit, the
7th day of February 1837, subject to the order and control of
the said defendant, in all respects as the owner of the same ; yet the
said defendant did not pay the said drafts, or any of them, or save
the plaintiffs harmless on account of their said acceptances as
aforesaid; but the said plaintiffs had to pay the same, to wit, at the
city and county aforesaid, on the day and year last aforesaid. Nor
has the said defendant reimbursed the said plaintiffs the amount
of freight so paid by them, or any part thereof, or the amount of
the commissions to which they are entitled, but has altogether
neglected and refused to comply with said agreement and stipula-
tions as aforesaid."

The 3d count declared, that " one Thomas Fey, being the owner
of goods then on ship board, consigned to plaintiffs, his factors, on
whom divers bills of exchange had been drawn, which they had
accepted at the request and for the accommodation of said Fey ;
and for the amount whereof to be paid when the same should
respectively thereafter fall due, they were liable to the holders
thereof, and on which amount they were by agreement to receive
*/-()-] *from said Fey a reasonable commission for accepting the
-" same as aforesaid ; a discourse was had and moved by and
between said Fey and defendant, of and concerning the transfer of
said goods by said Fey to defendant, then and there about to be
made upon certain terms, conditions and considerations, and for
certain purposes then and there mentioned and agreed upon between
them. Whereupon said defendant, in consideration that at his
request said Fey did then and there accordingly transfer to him
said goods as aforesaid, undertook, and then and there promised
said Fey before or at the maturity of plaintiffs' said several accept-
ances, respectively to pay off and discharge $6100 of the amount
thereof, and to save harmless arid keep indemnified said plaintiffs to


[McCredy . James.]

that amount, and from all claims, demands, and liabilities whatsoever
fur or by reason thereof, also to pay to said plaintiffs the amount
of freight for the carriage of said goods for said voyage, and of the
commissions aforesaid, and of all other incidental charges that
might necessarily be incurred and paid by plaintiffs, or payable to
them in respect to said consignment and acceptances, and plaintiffs
show that said goods were afterwards, on the same day and year,
there delivered to said plaintiffs as consignees as aforesaid, and they

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 62 of 75)