Verdict and judgment for defendant. Plaintiff took this writ, assigning for error the portions of the charge above given in brackets, and not directing the jury to find a verdict for plaintiff for the amount of the notes.

has a right to recover their full amount. [If they | valuable consideration. No subsequent failure of
were held as collateral, then he is entitled to re- consideration is alleged. They were indorsed
cover only the amount that he may show to be and delivered by the payee to the plaintiff, in
due upon the original debt.]
consideration of money received from the latter
at the time of the transfer and delivery. It is
conceded that they were unpaid at that time, and
that the defendant then had no defence against
them. One contention on the trial was, whether
the plaintiff purchased the notes of the payee or
whether they were transferred to him, as collate-
ral security only, for the payment of money he
then advanced. In either case the plaintiff ac-
quired the possession of them in good faith, and
for a valuable consideration paid at the time.
Evidence was given tending to show that after the
notes matured in the hands of the plaintiff, the
defendant, with knowledge that the plaintiff held
and claimed to own them, settled with the payee
and took his receipt in payment thereof. In the

Depeau v. Waddington, 6 Wharton, 232.
Struthers v. Kendall, 5 Wr. 215.
Ege v. Kyle, 2 Watts, 222.

Louisiana State Bank v. Gaiennie, 21 La. Ann. 555. hurry of trial the learned Judge appears to have
Parsons on Notes, 220.
overlooked the effect of this alleged payment by
the maker, and failed to submit the question to

Amer. Lead. Cases, 234.

Daniel on Negotiable Instruments, chap. 24, p. 576. the jury. It is true the Court charged that if the

Byles on Bills, pp 159, 162, 163, 287, 385.
Collins v. Martin, Bosan. & Puller, 651.
Lyon v. Ewings, 17 Wis. 62.

Curtis v. Mohr, 18 Wis. 619.

The case of Appleton v. Donaldson (3 Barr, 381) was decided on the ground that the note was an accommodation note, and later decisions have made it doubtful whether that case is now law.

Cummings v. Boyd, 2 Norris, 373.

When once a promissory note is in the hands of a bona fide holder for value, nothing but release, or accord and satisfaction will relieve the


plaintiff purchased the notes he could recover their full amount, but if he held them as collateral he could recover only the amount due him on the original debt. So far as this goes it was correct under the authority of Appleton v. Donaldson (3 Barr, 381). But these two questions both found against the plaintiff were insufficient to defeat a having obtained the notes in good faith, he might recovery against the defendant. The plaintiff maintain an action on them in his own name, although the right of property therein had again passed to the payee. Whether the plaintiff sued for himself or as trustee for the payee, constituted no defence for the maker, unless he was thereby deprived of some equitable defence which he may have had as against the payee. (2 Pars. on Notes and Bills, 437; Whiteford v. Burckmyer, 1 Gill, 127; Mauran v. Lamb, 7 Cowen, 174; Dean v. Hewit, 5 Wend. 257; Brown v. Clark, 2 Harris, 469; Pearce v. Austin, 4 Whar. 489; Holmes v. Paul, 6 Am. Law Reg. 482; Ballantinev. McGeagh, 4 Brews. 95; Way v. Richardson, 3 Gray, 412.) Hence although the notes were taken by the plaintiff as collateral, and he had been fully paid the debt for which they were pledged, so that he had no right of property therein as against the payee, yet still the plaintiff was entitled to recover unless the defendant had fully paid them to the payee. It therefore follows the learned Judge erred in instructing the jury, that if the notes were held as collateral the plaintiff could recover only the amount he showed to be due on the original debt, without adding that they must also find the defendant had paid the excess, due from him on the notes to the payee.

Judgment reversed and a venire facias de novo awarded.

Opinion by MERCUR, J.

J. W. Goheen, for plaintiff in error. The indorsee of a negotiable security who takes it as collateral security for a loan or advance made to the payee or indorser is a bona fide holder for value or a purchaser; the two terms are synonymous.

Kirkpatrick v. Muirhead, 4 Harris, 117.
Work v. Kase, 10 Casey, 141.

Bullock v. Wilcox, 7 W. 328.
Munn v. M'Donald, io W. 270.

I Parsons on Notes and bill, 224.
Wilkinson v. Nicklin, 2 Dall. 396.
Byles on Bills, p. 154.

[SHARSWOOD, C. J. You will admit that the holder of a note as collateral, who recovers against the drawer, would be trustee for the payee of the surplus over his claim?] Yes.

See also

Tarbell v. Sturtevant, 26 Vt. 513.

Chitty on Bills, p. 268.

Lisby v. O'Brien, 4 Watts, 141. John Dolman, for defendant in error. The verdict has established that the notes were held as collateral security; that the payee subsequently paid the plaintiff the amount loaned and tendered him whatever he claimed to be still due; and that the maker paid the payee the amount of the notes in full. Everybody is paid, and if this suit prevails it will only cause multiplicity of suits. Appleton v. Donaldson (supra) is directly in point.

January 27, 1879. THE COURT. This action was by the indorsee against the maker of two promissory notes. They were duly executed and delivered by the defendant to the payee for a

The declaration set forth that the plaintiff, in

Common Pleas Equity. consideration of a promise made to her by Mrs.

Smith, the wife that leave the plaintiff at her death all her property, agreed to and did nurse Mrs. Smith for five years previous to and up to the time of her death; that Peter Smith, who is the administrator of his late wife, though requested by plaintiff has reGround rent deed-Covenant to build-Injunc-fused to pay said plaintiff the value of her sertion to restrain terre tenant from removing vices. foundation wall by him erected.

Motion to dissolve injunction.

C. P. No. 4.
Feb. 16, 1879.
Penna. Co. for Insurance on Lives, etc. v.

The bill praying for the injunction set forth the conveyance of the property on ground rent to the defendant's grantor, the latter covenanting to erect suitable buildings or to secure the ground rent, and that the defendant had built a foundation wall, but threatened to remove the same. The answer denied that the defendant ever threatened to remove the wall, or that the plaintiff was without an adequate remedy at law.

D. Webster Dougherty, for the motion. The equities of the bill are denied in the answer. The plaintiff has an adequate remedy at law for breach of the agreement to build, he could proceed both in rem against the land and in covenant against the original covenantor.

[BRIGGS, J. The plaintiff has a right to apply the strong arm of the equity side of the Court to prevent you from taking away what little security he has already, and to stop you from violating this agreement, which binds you as a contract running with the land. A court of equity will never permit a party to deprive another of a substantial security merely because an action for damages can be brought for non-performance of the contract so secured.]

J. G. Johnson, contra.
Motion dismissed.

Common Pleas—Law.

C. P. No. 1.

Defendant demurred, on the ground that the declaration disclosed no cause of action. George Biddle, for the plaintiff.

The plaintiff's cause of action on the contract is good. The contract is sufficiently certain. Thompson v. Stevens, 29 Legal Int. 260.

The measure of damages is the value of the plaintiff's services.

Dec. 18, 1878.

Duff v. Gillmore, 33 Legal Int. 65.

Peter Smith is properly joined in this action as the husband of Sarah Smith, deceased. The estate of the husband must be exhausted before attacking the separate estate of his wife, in order to satisfy debts contracted by her for necessaries; her death can make no difference in regard to his liability. The manner of binding a wife's separate estate for necessaries contracted for by her is purely statutory, and must be strictly followed. The husband and wife must be joined in the suit; execution issues first against the property of the husband, and if this is insufficient to meet the debt, then, and then only, against the separate estate of the wife.

Act of Apr. 11, 1848, Purd. Dig. 1006, pl. 15. The insolvency of the husband is not a condition precedent to a recovery against the husband and wife, on a contract for necessaries furnished the wife.

Davidson and Wife v. McCandlish & Son, 19 Sm. 169.

Berger v. Clark, 29 Sm. 340.

Murray v. Keyes, 11 Casey, 384.

Peter Smith, as administrator, is brought in as the personal representative of his wife. This is necessary to charge her estate. The fact of her death cannot alter her liability for the payment of her debts.

D. W. Sellers, for the demurrer.

The contract set up in the declaration is that Longshore v. Smith. Mrs. Smith would leave the plaintiff her property. Pleading Proper parties in an action for neces-It cannot be that on issue joined, a jury could saries furnished to a wife-The husband in his find a verdict for whatever this property amounted own right and as administrator of his wife to. The husband would not be primarily liable should be joined in a suit on a contract for for that. Now under Duff v. Gilmore (supra) necessaries made by the wife during her life. the plaintiff seeks really to recover only the value Sur demurrer to declaration. of the services actually rendered, as a domestic Assumpsit against Peter Smith individually, servant, which no doubt would be "necessaries" and as administrator of his wife. furnished the wife. But her right to recover this

The proper parties are therefore on the record, viz., the husband, and the personal representative of the deceased wife.


under the contract averred is a consequence of accepted, and such acceptance cannot be prelaw; she does not directly ask this, or allege a contract to pay it. To recover wages as against the husband she must aver a direct contract with the wife to pay them and only them; otherwise the plaintiff under this declaration may give evidence as to the value of this lady's property which will affect the defendant unfairly.

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C. P. No. 1.

Gorman, for the rule.

A term of years, or other interest in lands, where for more than three years, can only be surrendered by deed, or note in writing.

Act of Mar. 21, 1772, sec. 1, Purd. Dig. 724, pl. 2. No verbal arrangement between the parties can cancel the lease.

Phillips on Evidence, vol. 3, p. 238.
Watson, contra.

C. A. V.

Feb. 8, 1879.

Feb. 15, 1879. THE COURT. The question

Penn v. Auer. Landlord and tenant-Lease for five years-Surrender-Act of March 21, 1772- What constitutes such a surrender by the tenant and acceptance by the landlord-Open, notorious, and exclusive possession taken and maintained by the landlord would be sufficient acceptance maintained by the landlord, might not establish of a surrender by the tenant-Affidavit of dea case of actual surrender, which would induce fence- General averment of surrender and us to consider that as done, which ought to be acceptance insufficient-Facts must be stated. done; but we do not think the defendant has set Rule for judgment for want of a sufficient affi-out such a case in his affidavits. He has failed

raised in this case is as to the surrender of a lease
for five years.
The tenant relies on actual sur-
The statute should take effect, except when its
render as taking it out of the statute of frauds.
operation would defeat its object. We do not
mean to say that there is no case where open,
notorious, and exclusive possession, taken and

davit of defence.

to set out what the acts were which he thinks

Covenant on a lease, for arrears of rent, by the lessor against the surety. The lease was for five years, commencing Oct. 15, 1875. The affidavit of defence set forth that Jacob Brown rented of the plaintiff the premises in question, and that deponent became surety for the payment of the rent; that Brown occupied the premises for about one year; "that said Brown then went to the plaintiff and delivered to him the possession of said premises, which plaintiff agreed to take, and did take, and released Brown and deponent." A supplemental affidavit set forth that the tenant years, there must be enough to satisfy the consurrendered the term of years, and that the sur-science of a chancellor, and to induce him to render was accepted, and the defendant thereby

justifies the assertion that he "delivered up possession," which "was accepted," or he "surrendered the premises," which "surrender was accepted." If the words of the statute are to be departed from, these questions of surrender or no surrender must be established to the satisfaction of the Court by facts, and not be left to the inference of the lessee or his surety. Had the term been for less than three years, an oral surrender would probably have been sufficiently set out to take the case to a jury. But being for five


Taylor's Landlord and Tenant, page 374, sec. 509.
Browne on Stat. of Frauds, 22 41-57.

The statute of frauds applies to executory contracts only. No set form of words is necessary to constitute a surrender, it is only requisite to have the assent of the proper parties and acceptance by the landlord. All the cases cited by the other side were so decided, because there was doubt as to the acceptance.

Hilliard on Contracts, vol. 1, p. 61.
Greider's Appeal, 5 Barr, 422.
4 Kent Comm. 104, note a.

grant specific relief. These principles are to be found in Moore v. Small (7 Harris, 461).

Rule absolute.

Oral opinion by BIDDLE, J.

[See Bradley v. Brown, ante, p. 282.]

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Rowan v. Lytle, 11 Wend. 616.

Roberts on Frauds, page 248.

A tenant who leaves without a regular surrerder in writing continues liable, although the landlord puts a sign, "to rent," on the house.

Redpath v. Roberts, 3 Esp., C. 225.

Ghegan v. Young, 11 Harris, 18.

Keister v. Miller, 1 Casey, 481.

Even in a lease for a year a surrender must be the acceptor.

Rule for judgment for want of a sufficient affidavit of defence.

Assumpsit by the endorsee of two drafts against

We will order the Master to

Copies of the drafts sued upon were filed. [THAYER, P. J. Upon the face of one of the drafts was written file his report within thirty days.] and signed by the acceptor: "Accepted, payable The Master might still refuse to take the testiout of the proceeds of $3000 order when col-mony, and yet comply with the order by filing lected;" and upon the other: "Accepted July an unfinished report. 23, to be paid out of the proceeds of $3000 order in my hands when paid.'

The defendant filed the following affidavit and suggestion of defence: "The acceptances on which the above suit is brought are contingent, and to be paid when certain matters in the hands of the acceptor are collected and paid. The statement containing copies of acceptances filed by the plaintiff contains no averment that the order of $3000 was ever paid to the acceptor. And deponent is advised and believes that the statement is defective for want of such an averment, and no judgment can be entered in the above case for want of an affidavit of defence." | C. P. No. 2. Scott, for the rule.

The affidavit of defence should have denied the receipt of the $3000 or any part thereof. Hepburn, contra.

The question is not as to the sufficiency of the affidavit. The instrument, without an averment that the defendant received the money, is not within the affidavit of defence law. C. A. V. February 17, 1879. THE COURT ordered the defendant to file a supplemental affidavit of defence.

C. P. No. 4.

Jan. 25, 1879.

Huddy v. Caldwell. Equity rules-Compensation of Examiner and Master-Practice when Examiner refuses to proceed May not withhold report in order to secure payment of fees-Penalty for abandonment of duties.

Rule to show cause why the Examiner and Master should not proceed with the taking of testimony.

The affidavit of the plaintiff filed in support of the rule alleged that the Examiner and Master, who had been appointed to take testimony and state an account, had been paid $75 on account of what might be awarded him by the Court for his services; that he had demanded of deponent the further sum of $125 for taking the testimony of the defendant, and that upon deponent's refusal to pay the same had refused to proceed with the taking of the testimony.

Isaac Myer, for the rule. Under Equity, Rule XII. § 62, the Master has no right to retain the report for his compensation, much less to refuse to proceed. The rules have provided an effective remedy, which he must follow.

[THAYER, P. J. The Master's refusal to go on was conditional. If, after the order which we are about to make, he still persists in his refusal, you may apply for his discharge. When a Master abandons his duty in the midst of proceedings, he would forfeit all compensation for services already rendered.]

(The Examiner was not represented.)

THE COURT ordered that the Examiner and Master file his report within thirty days.

Nov. 1878.

Barns v. Carney. Principal and surety-Surety not discharged by a variation of the contract which lessens his liability.

Rule to strike off judgment.

Debt, on sealed agreement of suretyship for tenant under a lease. The judgment was obtained for want of an affidavit of defence, upon a copy and statement filed claiming rent for four months at $20 a month.

The lease stipulated for a rent of $25 a month.
McCaffrey, for the rule.

The contract of defendant was for $25 a
month, and the copy shows a material variation.
Bennett, contra.
Rule discharged.

[See Dickson v. Wolf, 5 WEEKLY NOTES, 37.]

C. P. No. 2.

Dec. 13, 1878. Cresson's Executors v. Phillips et al. Internal revenue stamps-Admissibility in evidence of instrument dated in 1867, not stamped until after Jan. 1, 1877—Effect of_stamping by Collector, in accordance with Rev. Stat., Sect. 3422, but after said date-Acts of Congress of June 23, 1874, Feb. 18, 1875, and Feb. 25, 1876-Nonsuit. Rule to take off nonsuit.

This was an action of covenant, tried before FELL, J., brought on an instrument under seal, dated June 20, 1867, by which the defendants agreed to return or pay for certain bonds loaned to them. On the back of the agreement were endorsed receipts for the bonds, dated respectively June 20, 1867, and August 3, 1867. The agreement and receipts were each stamped with internal revenue stamps, affixed and cancelled on October 16, 1877, by a collector of internal revenue, in accordance with the provisions of the

United States Revised Statutes, section 3422. | desertion on the part of his wife, Sarah Peterson; Defendants objected to the admission of these that the subpoena was not personally served on papers in evidence on the ground that, by Act the respondent; that on May 25, 1865, a referof Congress of June 23, 1874, the Act under ence was made to an Examiner, and in June of which the stamps were imposed had been re- the same year a divorce was decreed. pealed, and that as the period accorded by the Act of 1874, and the extension granted by Act of 25 February, 1876, for the stamping of unstamped instruments (viz., until Jan. 1, 1877), had elapsed, it was too late to cure the defect. The objection was sustained, and plaintiff suited.

Robert N. Willson showed cause. The Act of June 23, 1874, repeals impliedly the Act of 1864, sect. 3422.

The testimony of the witnesses examined, as also the correspondence of the libellant and respondent both before and after the decree, showed that they were married in 1849, and continued in the marital relation up to 1858, when they separated. In 1863, non-five years after their separation, they seem to have been mutually of the opinion that they should be divorced. Respondent had knowledge of the institution of proceedings, and strongly urged that they be carried out to completion. Subsequently she was led to believe by the letters of libellant that said proceedings had been discon tinued. Towards the latter part of 1863 respondent was desirous of a reconciliation, which, in point of fact, took place, though there was no

The Act of 25 February, 1876, recognizes only the Act of 1874, and limits the time for the stamping of unstamped instruments: it is, therefore, reasonable to suppose that Congress intended to invalidate all instruments not stamped within the time prescribed by the Act, as a pen-actual reunion. Between the years 1863 and alty for non-compliance with its provisions. 1865 their relations were of the most amicable kind, an affectionate correspondence existing between them, and libellant frequently visiting respondent at her father's house in Flemington, N. J. After the decree they continued on the same amicable footing as before, the letters of respondent indicating that she was ignorant of a divorce having been decreed, while those of libellant seemed to ignore it, going to such an extent as to solicit her return; they were addressed to her as "My Dear Wife," and requested her as such to join with him in the execution of a deed, which she did. There were other deeds executed by him in which she was not asked to join. In 1866

Kohlsaat v. Murphy, Id. 153.

These revenue laws are to be construed in favor they were living together in the same house, and of the citizen.

libellant up to his death always spoke of petitioner as his wife. They separated again in 1867, and met but once afterwards. Libellant died in 1877.

L. C. Massey and Samuel, for the rule.
The Act of June 23, 1874, does not repeal
section 3422 Revised Statutes; the acts are in
pari materia, and must be taken together. This
is the general rule, especially as to revenue laws.
Barber's Case, 5 WEEKLY NOTES, 350.
Erie v. Bootz, 22 Sm. 196.
Dwarris on Statutes, 190.

U. S. v. Colliers, 3 Blatch. 325.
Wood v. U. S., 16 Peters, 342.
Reiche v. Smythe, 13 Wallace, 162.
Morris v. Archer, 50 Howard, 144.

Stuart v. Maxwell, 16 Howard, 150-160.

Arthur v. Homer, 6 Otto, 139.

Sherwood v. Reade, 7 Hill, 431.

Downing v. Roger, 21 Wend 78.
Miller v. Wentworth, 1 Norris, 280.

That Congress has not repealed section 3422, Revised Statutes, is shown by the fact that the Act of 18 Feb. 1875 was passed to amend it.


Act of 18 Feb. 1875, U. S. Stats. vol. 18, p. 319. THE COURT. Rule absolute to take off the nonsuit.

[See Andress v. Thomas, ante, p. 414.]

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H. W. Gimber, for the rule.

Personal service must be made if in the power libellant.

Keen v. Keen, 2 WEEKLY NOTES, 492.
Harvey v. Harvey, Id. 225.

As to what constitutes desertion-
Ingersoll v. Ingersoll, 13 Wr. 249.
Butler v. Butler, 1 Pars. 329.
Boyd's Appeal, 2 Wr. 241.
Angier z. Angier, 13 Sm. 458.
Edmond's Appeal, 7 Id. 232.
Bishop v. Bishop, 6 Cas. 412.

The Court has power to annul a decree of di-
where there is fraud, even where the libel-

Peterson v. Peterson. Divorce-Desertion Decree obtained without personal service and without knowledge of re-vorce, spondent, she believing that proceedings had been lant is dead. discontinued-Vacation of such decree on terms, after death of libellant-Competency of the evidence of respondent under the Act of 1869. Sur rule to vacate decree in divorce. The record showed that in June, 1863, James V. Peterson filed his libel in divorce, alleging | VOL. VI.-29

Allen v. McClellan, 2 Jones, 328.
Boyd's Appeal, supra.
Condonation puts an end to the cause for di-


Bronson v. Bronson, 7 Phila. 405.
Charles Hart, contra.

He who comes into equity must come with

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