In the Supreme Court of Pennsylvania.

RICKERT'S EXRS. v. GEISTWITE.

(Vol. II., p. 66, 1854.)

Where there were mutual dealings between two parties for thirty years, the defendant was not permitted to set off a single bill under seal, drawn by the plaintiff and guaranteed by defendant, which was due and payable more than twenty years before suit brought.

ERROR to the Common Pleas of Dauphin County.

This was an action of assumpist on a book account for work and labor done, brought in 1849, by Henry Geistwite, against the executors of John Rickert. The plaintiff's book contained items commencing April 20, 1820, and ending April 21, 1845. All the items in the same year were dated of the same day, but, on this head there was no bill of exceptions. The defendants, under the plea of set-off, gave in evidence a running account from 1834 to 1845, and also a single bill under seal, dated May 29, 1822, for $73 78, payable to Antes & Foster, at sixty days. On the back of this note there was a guaranty by John Rickert, dated January 4, 1827. The Court charged the jury to disallow the single bill, and that no part of the entries in the plaintiff's book could be allowed, unless the work was done at or about the same time the entries were made. These parts of the charge, after a verdict for the plaintiff, were assigned for error.

Alricks, for the plaintiff in error, contended that the Court should have instructed the jury to disregard the plaintiff's book of original entries, and cited 3 W. & S. 258; 8 Watts 554; 3 Id. 325. On the second point he contended that the statute of limitations did not bar the defendant's claim to defalk the single bill.

John A. Fisher, for the defendant in error, contended that the single bill could not be considered as an item in a mutual account, and cited 1 W. & S. 356; 2 Id. 137; 8 Watts 260.

The opinion of the Court was delivered by

LEWIS, J.-There was no bill of exception to the admission in evidence of the plaintiff's book of original entries, nor does it

appear by the record that the Court was at any time requested to withdraw it from the jury. Besides, if we look into the evidence, we cannot avoid seeing that the plaintiff's claim for work and labor did not depend altogether upon his book. Under such circumstances, we are unable to perceive any error in the direction that "no part of the entries can be allowed by the jury unless they are convinced that the work was done at or about the same time the entries were made." The instruction was more in favor of the plaintiff in error than against him.

It is contended here that the Statute of Limitations did not apply to the payment made by the defendant below, as surety or guarantor of the single bill of the 29th May, 1822. If we concede that he was entitled to subrogation, it would not better his case, because the single bill itself was due more than twenty years before the suit was brought, and there was no evidence to repel the presumption of payment. As the defendant below was not entitled to the set-off, it is not material to inquire into the reasons of the Court for excluding it. It is plain that, in any aspect of the case, the instruction did him no harm.

Judgment affirmed.

In the Supreme Court of Pennsylvania.

MORRETT & ROHLER'S APPEAL.

(Vol. II., p. 78, 1854.)

A., who owed some small debts contracted prior to July 4, 1849, and was possessed of a large estate, greatly encumbered, made an assignment for the benefit of creditors, reserving all rights under any laws exempting the estate of insolvent debtors. Held, that he was entitled to retain the sum of three hundred dollars.

APPEAL from the Common Pleas of Cumberland County. This was an appeal from the confirmation of an auditor's report on the account of the assignees of Samuel Bricker, under a deed of voluntary assignment.

Three exceptions were taken to the account, and to the report of the auditor confirming the same:

1. That the accountant should be charged with the sum of three hundred dollars, retained under claim of exemption.

2. That certain sums paid to Barbara Bricker should not be allowed.

3. That the assignees had imposed conditions on the sale of the real estate.

In regard to the first exception, the evidence showed that there were some debts of the assignor, which were contracted prior to July 4, 1849. The reservation in the deed of assignment, under which he claimed the three hundred dollars, was as follows: "Reserving, however, unto the said Samuel Bricker, all rights he may have to any property, real or personal, under any laws exempting the estate of insolvent debtors from levy and sale on execution." The second exception, which was to the payment of a legacy to Barbara Bricker, raised the question whether that legacy was made chargeable on the land of the assignor by the will of his father, Joseph Bricker.

The third exception to the imposition of conditions on the sale of the real estate, was made because the assignees sold the property subject to the charge of the aforesaid legacy. There was some evidence that it sold for an outside price. The will of Joseph Bricker provided for a division of his land, and directed that the persons making the division should "take into consideration the incumbrances on each part, arising out of the maintenance of my widow and step-mother." The auditor, William L. Miller, Esq., dismissed the exceptions. The Court confirmed the report.

The case was argued by Jacob Ritner and R. M. Henderson, for the appellants; and by W. M. Biddle and William M. Penrose, for the appellees.

The opinion of the Court was delivered by

LEWIS, J.-It appears, by the paper book, that Samuel Bricker, the assignee, had, at the time of the assignment for the benefit of his creditors, real and personal estate amounting to near $20,000, and that he was indebted on a contract prior to the 4th of July, 1849, to the amount of $236. This debt was

claimed by George Rohler. As this is all that is exhibited in the paper book in relation to the amount of his property, and of the debts not subject to the exemption law of 1849, we are compelled to assume these to be the facts on which the appellants rely to reverse the decree. There is no doubt that Samuel Bricker, before the assignment, might have paid the debt of $236 out of his assets, and thus have entitled himself to the benefit of the exemption law of 1849, as against all the rest of his creditors. It is equally clear, from these facts, that if Rohler had issued execution before the assignment, he might have collected his debt without interfering with the debtor's rights under the Exemption Act of 1849. We are told that some of the creditors had judgments; but as the dates and amounts are not specified, we have no right to assume that they were sufficient in amount to prevent the collection of the Rohler debt. A debtor who has $20,000 worth of property unincumbered, and is only indebted to the amount of $236, on contracts made before the 4th of July, 1849, may be said to have a right to retain property to the amount of $300 in value, under the Act of 1849. When, under such circumstances, he makes an assignment for the benefit of his creditors, reserving all the rights he may have to any property, real or personal, under any laws exempting the estate of insolvent debtors from levy and sale on execution," he has, as his election, a right to claim the benefit of the Act of 1849. The existence of two classes of creditors qualified his exemption rights, so that, as against those who claimed under contracts before the 4th of July, 1849, his rights were regulated by the statutes in existence previous to that year. As against debts originating subsequently, the statute of that year measured the extent of his rights of exemption. The reservation of "all rights" under "any" of the exemption laws, included his rights under the Act of 1849, and this construction is more apparent when we see that he reserves his rights to "real" as well as personal property. As none of the acts passed before 1849 exempted real estate from execution, it is plain that the reservation had an especial reference to the assignor's rights under that act. As the appellants are claiming under the assignment, they must abide by its terms in this respect. The legacies to Barbara Bricker were intended by the testator

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to be charged upon the land. That intention is manifest from the will of Joseph Bricker. The arrearages were, therefore, properly discharged by the assignees, and the payments subsequently to accrue were properly left as a charge upon the land in the hands of the purchaser.

The assignees deserve commendation for the manner in which they have executed their trust, and for the moderate sum charged for their services.

It is ordered and decreed, that the decree of the Court of Common Pleas be affirmed; and that the costs of these appeals be paid by Jacob Morrett and George Rohler respectively.

Smith's Appeal, 11 Harris 310; Gish & Henzey's Appeal, 7 Casey 277.

In the Supreme Court of Pennsylvania-Harrisbury.

FIGARD & DONALDSON v. GRIFFITH.

(Vol. II., p. 78, 1854.)

The validity of a writ of habere facias against a person in possession, not a party to the suit, depends on the question whether he went into possession under the defendant. If this question be decided by the Court below on depositions without an issue, the Supreme Court will not reverse for an error of fact.

ERROR to the Common Pleas of Bedford County.

This was a writ of error to a writ habere facias possessionem. The defendant in error became the owner of a tract of land, and commenced an action of ejectment against Aaron Donaldson on the 26th of February, 1852. The case was arbitrated, award given for plaintiff and an appeal taken, which was not perfected. A writ of habere facias was issued, and possession of the property given to Griffith. In 1852, Figard commenced an improvement on the land, and in November, 1852, purchased the title of Donaldson. Subsequently Griffith obtained a rule to show cause why an alias writ of habere facias should not issue. This rule was heard and argued with notice to Figard and made absolute. Two errors were assigned,-1, to the first writ of habere facias,