1. B made a voluntary assignment of his property and effects to trustees
for the benefit of his creditors, and by the deed directed them to give pub-
lic notice of the assignment, and to pay such creditors as would release
the assignor within sixty days after notice. The trustees having sold
and transferred all the property and effects to P, who had been their agent
and attorney, he collected and received the same: B, upon the allegation
that the trustees had never given the notice required by the deed, and that
none of the creditors had released, treated the deed as a nullity, and
brought an action for money had and received against P: Held, that he
could not recover. Baldwin v. Patten, 60.
2. To maintain an action on the case, it is necessary that the party
charged should have committed an illegal act, from which positive or con-
sequential damage has ensued. To sue for a debt which had been pre-
viously tendered to the party, is not actionable. Kramer v. Stock, 115.
3. The acts and exertions of the inhabitants of a township to get rid of
one, who is not, but is likely to become chargeable as a pauper, will not
render them liable to an action for a conspiracy by the township to which
he goes. Overseers v. Aurand, 134.
4. An action for money had and received, will not lie, in the absence
of proof of a contract, to recover the price of land which the defendant
had possessed, occupied, claimed and sold as his own, although the
plaintiff may have had a good title to it. Lewis v. Robinson, 338.
An action of assumpsit cannot be maintained for the purpose of de-
termining conflicting titles to real estate; but if, in a personal action for
breach of a contract relating to land, the question should arise incidental-
ly, and the rights of the parties require it, it must be passed upon,
although the action be personal. Ibid.
5. Where an act of assembly creating an offence, provides that the
"person so offending on conviction thereof before a justice of the county,
shall pay a fine of five dollars for every such offence, to be recovered as
debts of equal amount are by law recoverable, by any person who may
sue for the same:" the offender need not be convicted either by indict-
ment, or by a summary process, before the justice; but simply, in an action
of debt, by a judgment, for the penalty, if proved guilty of the offence.
Garman v. Gamble, 382.
6. If goods be sent to a merchant who refuses to receive them because
they are not such as were ordered, and under pretence of re-delivering the
same to the order of the owner, spurious articles are substituted, and the
genuine ones are not returned or accounted for, the owner may waive the
tort, and recover the price for which the latter may have been sold, in
an action for money had and received: but not upon a count for goods
sold and delivered. Gray v. Griffith, 431.
7. A tort feasor cannot have a civil suit against the owner of the free-
hold, in any form, whether trespass vi et armis, trover, or replevin. Elliott
v. Powell, 453.
Title to real estate may be tried incidentally in a transitory action:
Hence, a defendant in replevin for a crop of grain cut and carried away
by him, may show that the locus in quo was his freehold, and that by his
entry, the plaintiff's possession was divested, and he himself reinstated.
Ibid.
By the entry of the owner, claiming right, and the severance of the
grain, it becomes his chattel, for which replevin will not lie by the
former occupant. The only remedy is ejectment, and an action for the
mesne profits. Aliter, if the grain had been sowed by the plaintiff, who
was in the actual possession at the time of such severance. Ibid.
1. An acknowledgement such as will relieve a demand from the opera-
tion of the statute of limitations, must be so precise and distinct in its
extent and form as to preclude hesitation about the meaning of the party
making it. Magee v. Magee, 172.
2. An acknowledgement, such as will avoid the operation of the statute
limiting the time within which an action may be brought for the recovery
of lands, must be made to the owner or his agent known as such; must
admit that the title of the claimant is good, and must be accompanied by
a distinct agreement to leave the land or to continue as tenant.
Bank v.
Wilson, 261.
ADMINISTRATOR.
EXECUTORS.
An administrator having given legal notice of the time and place of the
sale of real estate, in pursuance of an order of the orphans' court, and not
being then able to effect a sale, he may adjourn the same to any period
less remote than twenty days. Gillespie's Estate, 300.
It is the duty of the orphans' court to require of an administrator a
strict observance of the legal form of selling real estate at public outcry,
and for any departure from it, from which a suspicion of unfairness arises,
to set the sale aside, at the instance of any creditor or heir; but the court
should not set aside a sale fairly made, on such grounds, at the instance
of a stranger, whose own conduct in the matter left him without legal or
equitable right to interfere. Ibid.
1. The verbal declarations of a testator that he had made an advance-
ment to his son-in-law, are incompetent evidence to defeat an action for
a legacy to his daughter, the wife of such son-in-law, when it appears
that the alleged advancement was a debt due by the latter to him, before
the making of the will, and which debt remained in full force, as part of
the testator's estate, at his death. Kreider v. Boyer, 54.
If a testator make advancements to one or more of his children, and
afterwards make his will, disposing of his whole estate among his chil-
dren, without noticing the advancements so made by him, each child can
claim the amount of the bequest to him, without abatement on account of
such advancements. Ibid.
2. If a parent purchase land in the name of his son, it will, prima facie,
be deemed an advancement, so as to rebut the presumption of a resulting
trust for the parent. Phillips v. Gregg, 158.
The amount of an advancement by a parent to a child must be ascer-
tained by the value of the thing at the time of the gift. If a parent pur-
chase land in the name of a child, the amount of the purchase-money paid,
is the amount of the advancement, and not any inreased value which the
land may afterwards possess. Ibid.
Where an imperfect memorandum of an agreement is prepared and sub-
mitted by one party for the signature of the other, who adds a material
modification to it before he signs it; and the paper, thus altered, is taken
and acted on by the former, such aots are prima facie evidence that he
agreed to the modification; and he will be bound by it, unless there has
been imposition by the party so making it, or ignorance by the other, of
material facts connected with it, which he was not bound to know, and
which were less accessible to him than to the party who altered the mem-
orandum. Gray v. Foster, 280.
A clerical error in a writ of scire facias against the sheriff and his sure-
ties may be amended by the præcipe and record, by inserting the state-
ment of the proper judgment in the sheriff's official bond, in lieu of one
erroneously recited in the writ. Rainey v. Commonwealth, 343.
The grant of an annuity, out of whatever payable, prima facie binds
the person of the grantor; and the implication, from it, of a covenant to
pay, can be rebutted only by a plain intent, apparent on the face of the
instrument, that the annuitant should resort only to a specific fund: Hence,
a promise to pay the annuity in consideration of forbearance to sue the
personal representatives of the grantor, is binding, and may be enforced
against the promissor. Horton v. Cook, 124.
A constable against whom a judgment has been rendered for neglect of
duty in not returning an execution, is not entitled to an appeal under the
act of March 21, 1810. Johnston v. Meeker, 403.
1. Payments made generally on a bond, payable in instalments, with-
out appropriation, at the time, to any particular instalments, will not be
applied by law to such as are not then payable, but to such as are paya-
ble, according to the dates at which they respectively become so. Nor
can such payments be defalked against instalments falling due afterwards,
after suit brought. It is a question of appropriation, not of set-off. Sey-
mour v. Sexton, 255.
It is to be presumed, in the absence of any actual appropriation, that a
debtor paying money, intends to apply the payment to a debt then paya-
ble and bearing interest, rather than to one not payable and not bearing
interest. Ibid.
2. One having a judgment which binds distinct pieces of land, may at
law elect which he will proceed against for payment, or take which he
pleases first, (if one is not sufficient to pay his debt,) but when the money
is brought into court, and there are contending claimants, it will be dis-
tributed according to equity. Hasting's Case, 303.
A creditor having two funds for payment of his debt, may be com-
pelled by another creditor, who has but one of them, to apply the pro-
ceeds of sale by execution, so as to leave to the latter a resort for
payment of his debt, to the only fund in his power. Ibid.
H. being the owner of lot No. 68, a judgment is obtained against him
by E. for 347 dollars 25 cents. This judgment is afterwards revived,
before which H. becomes owner of lot No. 30. During the interval H.
mortgaged the first mentioned lot No. 68, to H. H. for 2500 dollars.
Afterwards H. acquired a tract of land, and then A. obtained judgment
against him for 1107 dollars 51 cents. The three pieces of land were
sold on an execution, and lot No. 68 brought 400 dollars, lot No. 30,
180 dollars, and the tract 50 dollars, total 630 dollars. This money being
brought into court, it was decreed that the price of lot No. 30 should be
first applied to E.'s judgment, and the residue of that judgment should
be satisfied out of lot No. 68; that the remainder of the price of lot No.
68, should be applied to H. H.'s mortgage; and lastly, that the price of
the tract should be applied to A.'s judgment. Ibid.
1. The entry of a rule of arbitration, does not take the cause out of
court, or deprive it of its jurisdiction. This effect cannot be produced,
except by the appointment of the arbitrators, and the commitment of the
case to them. A mere rule, not acted on, may be treated as a nullity by
either party. Camp v. Bank, 130.
Sed secus as to a rule of reference. Ibid.
2. It seems that the act of March 21, 1806, regulating arbitrations, is not
repealed by the act of June 16, 1836, on that subject. Pennington v.
Bowman, 283.
3. An action upon the official bond of a sheriff is the subject of refer-
ence under the compulsory arbitration law. Gordon v. Commonwealth,
443.
A voluntary assignment is bad, when it conveys only the possession
of the effects assigned, and not the property, for twenty-five days, and
provides that, if, within that time, the assignor shall satisfy certain
creditors named, then the effects are to be returned to the assignor; if not,
then they are to be sold for the use of the creditors. Whallon v. Scott,
237.
So, if it empowers the assignee to retail the goods during that time,
without making any appropriation of the proceeds. Ibid.
So, if it contains a clause of indemnity to one who should, thereafter,
enter bail for stay of execution, in certain judgments obtained against the
assignor. Ibid.
1. B made a voluntary assignment of his property and effects to trus-
tees for the benefit of his creditors, and by the deed directed them to give
public notice of the assignment, and to pay such creditors as would re-
lease the assignor within sixty days after notice. The trustees having
sold and transferred all the property and effects to P, who had their agent
and attorney, he collected and received the same: B, upon the allegation
that the trustees had never given the notice required by the deed, and that
none of the creditors had released, treated the deed as a nullity, and
brought an action for money had and received against P: Held, that he
could not recover. Baldwin v. Patton, 60.
2. A voluntary assignment is bad, when it conveys only the posses-
sion of the effects assigned, and not the property, for twenty-five days,
and provides that, if, within that time, the assignor shall satisfy certain
creditors named, then the effects are to be returned to the assignor; if not,
then they are to be sold for the use of the creditors. Whallon v. Scott,
So, if it empowers the assignee to retail the goods during the time,
without making any appropriation of the proceeds. Ibid.
So, if it contains a clause of indemnity to one who should, thereafter,
enter bail for stay of execution, in certain judgments obtained against the
assignor. Ibid.
3. The validity of an assignment for the benefit of creditors, is not
affected by the circumstance of its prescribing a particular form of re-
lease. The creditor is a purchaser of his preference, and must take it on
the debtor's terms. Bayne v. Wylie, 309.
A stipulation, in the assignment, for the delivery of the merchandize
X.-2 Q*
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