Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 4) online

. (page 36 of 69)
Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 4) → online text (page 36 of 69)
Font size
QR-code for this ebook


Judgment reversed, and judgment for the defendant.



Sept. 1842.] OF PENNSYLVANIA. 311



Forrester against Alexander.

Where the jurisdiction of a court is limited by the amount in controversy be-
tween the parties, and that is indefinite, recourse must be had to the demand as
laid in the plaintiff's declaration.

ERROR to the District Court of Allegheny county.

William G. Alexander and I. Addison Stockton against Robert
H. Forrester and William D. Smith. This was an action of debt
upon an insolvent bond in the penalty of $150, reciting the fact
that Robert H. Forrester was in custody on an execution in fa-
vour of Alexander & Stockton, " for the sum of $76.62, with
interest and costs of suit," and with the condition that he should
be and appear at the next Court of Common Pleas, &c. The de-
claration was upon the penalty of the bond, and set out the con-
dition and breach of it ; to the damage of the plaintiff, $150. The
defendants demurred to the plaintiffs' action, and assigned for
cause that the District Court had not jurisdiction of the cause of
action. The plaintiffs joined in the demurrer.

The court (Grier, President,) gave judgment for the plaintiffs
that the defendants answer over. At a subsequent day a judg-
ment by default was entered for want of a plea, and the sum due
was liquidated at $150.

Forrester, in propria persona. The jurisdiction of the District
Court is limited to cases where the demand exceeds $100. Here,
although the penalty of the bond exceeded that amount, yet the
plaintiff did not claim, nor would the law allow him to recover a
sum exceeding the debt, interest and costs of his original judg-
ment. It cannot be said that the amount of his claim was uncer-
tain, for there can be no uncertainty where the law fixes the mea-
sure of damages. 3 Doll. 401 ; 9 Serg. fy Rawle 294 ; 9 Watts
287 ; Ing. Insol 33 ; 1 Term Rep. 149.

Woods, contra. It is necessary there should be a certain rule
by which the jurisdiction of the court in a case like this should
be measured ; and there can be none better than having recourse
to the plaintiff's declaration. How can this court say, from what
the record exhibits, that the debt, interest and costs did not exceed
$100 ? In fact, the judgment, as liquidated, did exceed it ; and
if that liquidation was wrong, the party should have applied to
the court below to rectify it. 4 Whart. 242; 10 Watts 299; 1
Watts 4- Serg. 61.



31* SUPREME COURT



Pmm. CrKiAM- The principle adopted in Aneora




&P.JLB. 271), is, that where the actual

MMi MI to lie had to tie dnmaud laid; for so modi
must appear to the eye of the court to be in contest. Here the
dpflar^*"* exhibits a lgpl 4fwt*fff of $150, as the penalty of a
bond, and the sum st^ for, wfakh must be taken for the debt in
the first imtinrf Bat the condition was set out in the declara-
tion, and the sum to be recovered tor the breach of it was the

of the execution on which the piincjyol obligor was in
rineh was stated in the condition to be $76.62, and the

of the interest and costs, which nowhere appears. The
only certain guide, then, was the penalty, which happened to be
the wry auumut at which the judgment by default, which foBpw-
ed the j^lgp*" 111 of rapomdeal muter, was liquidated. The limit
of the jurisdiction is $100; and the defendants were propeily
adjudged to answer over.




Wolfe against Nesbit

k -"^:. - . r-ij ;: SSSflBUlU, BH MuuV



ERROR to the District Court of Jttlcgkemy county.

Wolfe & Boswefl obtained a judgment upon a recognizance
entered into by Kesbit to entitle a defendant in a judgment to a
stay of execution. And the question was, whether Nesbit was
entitled to a stay upon the judgment against him.

Gum, President. This court has repeatedly decided that a

_^. -_/



drfniUut in a judgment upon a recognizance fur 4 stay of execu-
tion is entitled to the same stay which the statute gives to any
d*fr"dauf in a Judgment founded noon contract: and we now re-



, *** opnnon to writing, that the party may have an oppor-
tunity to have tt reviewed, if be thinks the correctness of it ad-
uuts of doubt.

JTCaadZov and HamStim, far plaintiff in error, referred to the
Act of tile 10th of June 1836, and contended that a recognizance
was not a contract within the spirit of the law. 3 Burr. 1545.

Ton&v OMfru, argued that a recognizance was a contract in
every sense of the word; and that the exceptions



Sept. 1842.] OF PENNSYLVANIA, .:



the Act showed dearly the sense of the legislature, that a defend-
ant in a case like this was entitled to a stay of execution.

The opinion of the Court was delivered by

Gwnar, C. J- This writ of error is a pregnant instance of the
extravagant results which are sometimes expected from judicial
exposition. It seems to be thought the business of the judges to
make every statute conform to their notions of justice, convenience
or policy, by moulding it to their fancy without regard to the pre-
cise and peremptory expression of the legislative will. Such,
however, is not the province of the judge. It is his duty to get
over inadvertent expressions which manifestly conflict with the
general design, in order to avoid a mischief that was obviously
not intended to be introduced ; but the judiciary possesses none
of the plastic power of the legislature ; ill business is to execute
the laws, not to make them. How, then, can the Act of 1896 be
prevented, by any sound interpretation, from embracing the case
before us? It extends to all actions instituted by writ, for a duty
founded on contract, except actions and writs of scare facias on
judgments or mortgages; and it wiU scarce be thought that the pre-
sent k not an action within the purview, or that it is aJctrejfecMc
on a judgment or a mortgage. But it is a process to have execu-
tion of a recognizance, which is in the nature of a judgment, and
a debt of record at the common law; and it is against one who
has caused the plaintiff to be already delayed : why, then, it may
be asked, should not the bail be placed in the same circumstances
as die original defendant! Simply -because the legislature has not
so ordered it. The process is a writ fiwJmJ en a contract ; and
it is not one of the exceptions, because & recognizance of bail is
not a judgment either in a popular or a technical sense. The ar-
gument that the creditor ought be indefinitely delayed by consec-
utive stays of execution, k entitled to but one answer : the con-
tingency is scarce within the range of possibility. Nor, in point
of reason, does the bail stand in toe place of a defendant win has
already had his indulgence. He engages that another, with whom
he has had no connexion in the course of the action, and with
whom hi has no present connexion but what results from the rela-
tion of principal and bail, shall do one of two specific acts; and
his engagement lam all the fir Ann mi of an original one. Why,
therefore, should it not hare its incidents ? He expressly waives
none of them; and there is no reason to suppose he does so impli-
citly. It b not his act, but the act of the law, that is to delay the
creditor; for the law which sanctions it, as the defendant's privi-
lege, makes the act its own: and as he deprives the plaintiff of no
legal advantage, he n not supposed to relinquish any. He stands
in the peculiar attitude of a surety against whom there is to be
no equitable interpretation, because, having contracted gratui-
tously, he is supposed to have contracted oily on the condition?
iv. 40 SB



314 SUPREME COURT [Pittsburgh

[Wolfe v. Nesbit]

expressly stated; and here there was no condition that he should
waive any incidental advantage. I take it, therefore, that the
defendant was entitled to a stay of execution by the spirit, as well
as the letter of the Act.

Judgment affirmed.



Colt's Estate.

In the distribution of the personal assets of an intestate, under the Act of lyin
April 1794, the judgments of the courts of another State will rank in the same
grade and be entitled to like preference with judgments of the courts of our own
State.

APPEAL from the decree of the Orphans' Court of Erie county.

Upon the death of Jabez Colt, who died intestate, there were
several judgments, and among others two in the Supreme Court
of the State of New York ; one in favour of Joseph Colt for $1800,
and one in favour of Somuel Colt for $2400. There was a fund
in the hands of the administrator of the intestate, arising out of
his personal estate, for distribution ; which the Orphans' Court
decreed should be paid pro rota among the judgment creditors,
excluding those which were in the Supreme Court of the State of
New York, on the ground that they were foreign judgments and
not of equal grade with the judgments of our own Court. From
this decree there was an appeal.

Pearson, for the appellants, on this point, cited 3 Penn. 185; 1
Whart. Dig. 371, JVb. 73 ; 1 Parke fy Johns. 209, sec. 23 ; 1 Brown's
Appendix 30 ; 3 Pick. 128 ; 8 Pick. 475 ; 20 Johns. 265 ; 5 Peters
518.

Riddle, contra, cited 4 M'Cord 278 ; 13 Peters 312, 328 ; Gor-
don's Dec. 166, 167 ; Story's Conf. of Laws 438.

The opinion of the Court was delivered by

ROGERS, J. The Act of the 19th of April 1794, directs that
all debts owing by any person within this State, at the time of his
decease, shall be paid, as far as there are assets, in the manner and
order following : first, physic, funeral expenses and servants' wages ;
second, rents not exceeding one year; third, judgments; fourth,
recognizances; fifth, bonds and specialties; and all other debts
shall be paid without regard to the quality of the same, except
debts due to the commonwealth, which shall be last paid. No
distinction is made between creditors, wherever residing. By
the Act, all debts whatever are ordered to be paid in the man-
ner prescribed, so that it will not admit of doubt that in other



Sept. 1842.] OF PENNSYLVANIA. 315

[Colt's Estate.]

grades, as bonds and specialties, for example, a creditor, although
residing elsewhere, is entitled to come in on the assets in the same
manner and to the same extent as inhabitants or citizens. But
it is said, that in marshalling the assets of an insolvent estate, a
judgment rendered in another State only ranks as a simple con-
tract, and consequently, as such only is a creditor of this descrip-
tion entitled to participate in the fund. That this is true of a
foreign judgment, strictly, may be admitted; but I cannot bring
myself to believe that a judgment rendered in a sister State is to
be viewed, to all intents and purposes, as a foreign judgment.
That it is something more than a debt by simple contract, must
be conceded. By the constitution of the United States, citizens
of each State are entitled to all the privileges and immunities of
citizens of the several States ; and whatever may have been
thought of it heretofore, it is now settled that a judgment in one
State is conclusive in all the States, provided it was rendered by
a court having competent jurisdiction. The merits of such a
judgment cannot be again put in issue, although suit may be
brought on it in another State. The constitution was intended
evidently to put citizens of our common country, as far as prac-
ticable, on the same footing. The legislature may by positive law,
regulate as they please the disposition of personal property found
within their borders ; but that they intend to make any distinction
between citizens of this and other States, should clearly appear ;
and as no difference is made in the distribution of other debts, we
see no reason to make any in judgments.

The only time this point has come before any of our courts is
in Bond's Case, reported in 1 Whart. Dig., page 371, JVb. 73. It
is there held, that judgment creditors who render their accounts
within the time prescribed by the Act of 1794, are entitled to the
preference, whether their judgments were obtained in the same
county, or in any other county of this State, or in any other State.
This case was ruled by the Orphans' Court in Philadelphia, and
has never been since questioned, nor will we now disturb it,
particularly as since the Act of 1834, which entirely alters the
order in which the debts of insolvent intestates shall be paid, the
point has become of little practical importance. We have exam-
ined the cases cited at the bar. M'Elmoylev. Cohen, (13 Peters 328) ;
Cameron v. Wurtz, (4 M'Cord 278). The first is decided on the
words of the Statute of George, which the court supposed indi-
cated an intention to place judgments rendered in another State
on a different footing from domestic judgments. As the language
of the Acts is different, the case does not apply. The case of Cam-
eron v. Wurtz is more to the point, but we cannot subscribe to the
authority of that case, because we do not agree with the court
who ruled it, that such a judgment is to be treated as a foreign
judgment, which we admitted ranks as a simple contract only.

Decree reversed.



316 SUPREME COURT [Pittsburgh



Magaw against Lothrop.

A contract for the purchase and sale of land which provides that a clause of
weneral warranty shall be inserted in the deed which the vendor shall finally
make to the vendee ; that the purchase money shall be paid in four annual instal-
ments at specified times ; and without specifying any time at which the deed is
to be made, shall be thus construed: that the vendor is to convey a good and
sufficient title free from all reasonable doubt, and clear of encumbrances ; that the
deed is to be made on or before the payment of the last instalment ; that the
vendor may sue for the first three instalments as they become due, but not for
the last, without the tender of such a conveyance as the contract provides for.

Under such contract, the payment of the last instalment and the tender of a
deed become simultaneous and dependent acts, and neither party could sue the
other without averring and proving a performance of or offer to perform his part
of the agreement, unless discharged by the acts of the other : and if the vendor
sue for the purchase money, he must show that he tendered a good title before
suit brought ; if he perfect his title after suit brought, he cannot recover.

Whether a contract for the sale of land was rescinded by the vendee, is a mat-
ter of fact which can only be determined by the jury.

When a contract between a vendor and vendee stipulates for the payment of
interest upon the instalments of the purchase money, the vendee is bound to pay
according to his contract, unless he can show that it was the fault of the vendor
that he did not pay.

ERROR to the District Court of Allegheny county.

Sylvanus Lothrop against William A. V. Magaw. This was
an action of covenant upon the following agreement between the
parties :

" Agreement made this 13th day of July 1835, between Sylvanus
Lothrop of the one part, and W. A. V. Magaw of the other part.

" Sylvanus Lothrop sells to the said W. A. V. Magaw, his heirs
and assigns, a lot of ground, supposed to contain about two acres
and a half, being the same premises described in a certain article
of agreement between William Stewart and John M'Kee, dated
14th of October 1833, and recorded in Book S, p. 527, and which
the said William Stewart conveyed to Sylvanus Lothrop on 21st of
December 1833. A clause of general warranty is to be inserted
in the deed, which said Lothrop shall finally make to said Magaw.
W. A. V. Magaw agrees to pay to the said Sylvanus Lothrop,
for the premises, the sum of $10,000, as follows : viz. 82500 on
1st of April 1836, with interest from this date on the whole of the
purchase money ($10,000), and the balance in four equal annual
payments, from the said 1st of April 1836, with interest payable
annually from that date, on whatever purchase money may remain
due. Witness the hands and seals of the parties, the day and year
above written."



Sept. 1842.] OF PENNSYLVANIA. 317

[Magaw v. Lothrop.]

The defendant had paid $2500 on this contract.

The defendant pleaded payment, covenants performed absque hoc,
and specially " that the plaintiff did not deliver the possession to
the defendant in manner and form, &c. ;" and to so much of the
plaintiff's declaration as alleged a tender of a deed, that the plain-
tiff did not tender a good and sufficient title for said lot, conveying
the same in fee-simple with clause of general warranty.

The plaintiff, after giving in evidence the agreement, exhibited
the original title papers of the property sold, which it was proved
were tendered to the defendant before suit brought. It was also
proved that after the date of the agreement the lot was taxed in
the name of the defendant, and that he paid the taxes and occu-
pied the lot part of the time for a board-yard.

The defence was, that the title tendered by the plaintiff was
defective, and it did clearly appear, that when the tender was
made, the title was defective, inasmuch as there was an outstand-
ing right of dower in a very small interest on the property ; but
that it was made perfect before the cause was tried. The defend-
ant also called a witness to prove that he made a tender of the
purchase money, and this for the purpose of establishing his right
to rescind the contract, which he contended he did ; and at all
events to relieve him from the payment of interest. The witness
on that subject testified as follows :

" On the 1st day of October 1840, I was present, at the request
of Wm. A, V. Magaw, when a conversation was had between him
and Sylvanus Lothrop, Wm. Eichbaum and D. C. Stockton, the
two latter being assignees or trustees of Sylvanus Lothrop, rela-
tive to a piece of property in Bayardstown, which the said Magaw
two years since purchased of said Lothrop. On the occasion
referred to, Mr Magaw tendered to S. Lothrop, W. Eichbaum,
D. C. Stockton, Lyon, Shorb & Co. and S. Gormley's checks on
banks in Pittsburgh, for $10,000, and demanded of them a deed
to said property in Bayardstown, which they declined giving him,
on account of inability to make a sufficient title ; they, however,
were willing to accept the tender of the checks as legal, or rather
waived the formality of his (Mr Magaw's) bringing specie to
make the tender, but considered the checks as sufficient. Mr Ma-
gaw then demanded the refunding of the money paid by him, on
account of the purchase, which Mr Lothrop declined doing, on
account of present inability to comply. He, however, expressed
his willingness to give him real property of any kind he had at a
fair valuation, in lieu of the amount he had received already on
the purchase of the Bayardstown property."

SHALER, President. The circumstances in this case raise three
principal questions: 1. Whether the title, as it now stands, and
which the plaintiff can now tender, is defective ? 2. Whether the
offer to pay the purchase money on the 1st of October 1840, before

nr. 2 B *



318 SUPREME COURT [Pittsburgh

[Magaw v. Lothrop.]

the plaintiff had it in his .power to complete the title, is equivalent
to a performance, and absolves the defendant from his contract ?
And 3. Whether the plaintiff, having resorted to his action of
covenant whilst there was acknowledged encumbrance, the title
to dower of James's widow, can recover, although that title has
been extinguished before trial.

His Honour here examined the title, and instructed the jury
that it was perfect at the time of the trial, and then proceeded as
follows :

Then, as in the second general matter, I state to you, that after
the tender made and demand of title, I think equity would allow
the vendor a reasonable time to perfect his title and to offer it to
the vendee, and that, therefore, that offer, connected with the cir-
cumstances that have been heretofore adverted to, cannot be con-
sidered in the case as equivalent to performance, and will not
absolve the defendant from the contract. I infer that there was
no recision of the contract by the defendant : there was no offer
to redeliver possession ; there appears to have been negotiations
upon the subject of the title subsisting after the 1st of October
1840; the title papers were given to the defendant to examine
after the tender of the money : he took them for that purpose, and
whether he pointed out defects of title afterwards does not appear.
I do not think he can, in this stage of the proceedings, allege a
recision of his contract, after having permitted the plaintiff to go
on for all that appears without objection in endeavouring to com-
plete a title, and involving himself in expenses for the purpose.
The plaintiff appears to have brought his action whilst there was
an outstanding encumbrance of dower, which he was bound to
extinguish. He has since extinguished it and perfected his title.
Can he sustain the action of covenant ? This I deem a new ques-
tion. I shall decide it in favour of the plaintiff, in order that all
the questions, some of them very important, may be decided in
the case. I think the pleadings and the evidence under them
convert this action into a new proceeding in equity, and the ques-
tions that arise, involve the right of the plaintiff to enforce a spe-
cific performance of the contract. I take it, if the vendor at the
time of the decree prayed for has. a title which the vendee is bound
to take, that it cannot be alleged that such title accrued after the
commencement of the proceedings. I should say, then, although
with very great hesitation, that the plaintiff may in this case
recover, although he had not extinguished the encumbrances of
dower before commencing his action. I am strongly disposed to
think that, after the tender of the purchase money, the plaintiff
was bound to tender an unencumbered title before bringing this
action ; but as the title is now perfected, I have already said, and
repeat, that the completing the title after suit brought entitles the
party to recover.

Upon the whole case, I charge you that the title exhibited by



Sept. 1842.] OF PENNSYLVANIA. 319

[Magaw v. Lothrop.]

the plaintiff is sufficient ; that there is no defect or encumbrance
connected with it, that furnishes a sufficient ground to the de-
fendant, either in equity or law, for refusing to perform his con-
tract, or pay the money covenanted to be paid, and that he is
entitled to your verdict for principal and interest, reserving for
you the question, as to interest from the 1st of October 1840, until
the time of bringing the suit, and that in rendering your verdict,
you may order that the deed of Lothrop and his assignee be filed
by the plaintiff, before taking out his execution ; and as the title
was not completed before suit brought, the plaintiff shall have a
verdict without costs.

To this opinion, the defendant excepted.

Dunlop and Biddle, for plaintiff in error. A plaintiff who files
his bill in Chancery for a specific performance of the covenant,
must show a complete title in himself at the time of the decree ;
for this court has complete control, not only over the amount to
be recovered, the time of recovering it, but the costs of the pro-
ceeding. Not so with regard to a court of law which has no con-
trol over the costs of the suit but such as is given to it by statute.
When the plaintiff then seeks specific performance against a de-
fendant in an action at law, he must be able to show that he was
in no default, but had performed all his contract at the time his
suit was brought ; and whether he seeks such a recovery in a court
of law or Chancery, the defendant is not bound to accept a doubt-
ful or suspicious title ; but if he goes for damages only, then he
may recover an amount measured by the circumstances of the
case. 2 Watts 178; Chitt. Gen. Prac. 842; 2 Sto. Eq. 45, 89; 20
Johns. 132; 4 Russ. 374; 3 En. Con. Chan. 713; 7 Bing. 379.
That the title must be good in the vendor before suit brought,
they cited 11 Serg. fy Rawle 246; 8 Serg. $ Rawle 263; 8 Watts
368 ; 3 Rawle 400 ; 4 Taunt. 334 ; 16 Serg. fy Rawle 198 ; 4 Watts
472 ; 17 Serg. # Rawle 73 ; 5 Watts 422. The question of interest
is for the jury. 16 Serg. fy Rawle 57, 266; 6 Watts 162, 207. So
also is the question with regard to the recision of the contract.
5 Watts 525; 3 Whart. 370; but both these questions the court
treated as matter of law, and gave a binding opinion to the jury.
A vendee, on discovering encumbrances or defects of title, may
insist upon a recision of the contract. 2 Watts 257 ; 3 Watts 368.

Foster, contra. This covenant of the vendee to pay the purchase
money is independent ; particular days are fixed for payment, and



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 4) → online text (page 36 of 69)