McCullom & Co. was ascertained. All the parties to the transaction, except Sutherland, are deceased. Most of them were insolvent, and the persons who administered on their estates, are most of them dead, and several of them insolv.

ent.

The object of the bill is to require payment of the aforesaid balance, from Brabham, surviving administrator of McCullom.

Sutherland having assigned his interest to the complainant, has disclaimed. Brabham relies on the statute of limitations, and on a receipt from Brown, for a draft on General Porter, in favor of Butler, and endorsed by him to Brown.

Stoddart and Bacon, for complainant. Smith, for defendant.

By the COURT.

It is not necessary to examine many of the grounds that have been taken and relied on in the argument. It appears to us, that Brown's receipt is decisive of the matter in controversy. That receipt was given in 1811, after the settlement, referred to in the bill, had been made. It acknowledges that Brown had received, on account of the balance now claimed, a draft for six hundred and eighty dollars, drawn on Porter, in favor of Butler, and endorsed by him.

A number of objections have been made to the allowance of this receipt. It is contended, in the first place, that the proceeds of the draft have never been received by Brown. This seems to be the fact, but as he constituted Butler his agent, to collect the money, by whom it was received, and misapplied, he cannot avail himself of this objection. A payment to Butler was in effect, payment to the complainant, whose agent he was, and it does not rest with him to charge the defendants with the consequences of his own misplaced confidence.

It is said, in the second place, that the draft was Butler's private property, and that being indebted to Brown in his private, as well as in his partnership capacity, he had a right to direct the money to be applied on either account. This is not denied, but so far as there is evidence on this point, it goes to show, that the draft was assigned for the purpose of extinguishing the partnership debt, but if not, there is no evidence to show that Butler directed it to be otherwise applied; and if no directions were given, the house had a right to credit it to either account, and he has applied it to the partnership account. The receipt given for the draft, specifies that application, and was received without objection. Butler did not dispute it in his life, nor has it been disputed since, by any person legally representing him, and certainly, the complainant, who made the application, cannot now be allowed to question it.

Again. It is said that Brown used due diligence by employing a confidential agent, as he had a right to do. This is admitted, but as that confidential agent, collected the money, it is the same thing to the defendant, as if Brown had collected it himself. The amount of the draft exceeds the balance due on the settlement, and extinguishes the whole debt. It is not necessary, therefore, to consider any other point made in the cause.

Bill dismissed.

STREET v. FRANCIS.

JUDGES BURNET AND SHERMAN.

1827.

An appeal does not lie from the Common Pleas on an application to redeem lands sold for taxes It seems that a certiorari is the proper remedy in such cases.

This was an application from a decision of the court of Common Pleas, on an application for the redemption of land, sold for taxes.

The appellee moved to dismiss the appeal for want of jurisdiction.

Brush, for the appellant,

By the COURT.

The practice of removing causes from the Common Pleas to this court, for the purpose of a second trial on the merits, has been created by statute. It is a proceeding unknown to the common law. It cannot therefore be extended beyond the plain and obvious import of the statute.

The appeal is given from judgments and decrees, rendered in the court of Common Pleas. In every case of an appeal security must be given for the amount of the condemnation money, and cost in the Supreme Court. The statute also directs, that all cases appealed, shall be tried on the pleadings made up in the Common Pleas, unless on good cause shewn, the parties are permitted to amend their pleadings. These provisions, evidently relate to cases of a different character from the one before us. The right of appeal is given in the statute which regulates the practice of the courts, in cases that are conducted according to the course of the common law; and the terms made use of clearly show, that the provision applies only to suits in which there are plaintiffs and defendants, and in which pleadings are filed, and issues joined, according to the course of the common law. It has never been considered as extending to cases, in which a summary jurisdiction has been granted to the Common Pleas, by particular statutes. In such cases, we never sustain an appeal in this form, unless it has been allowed by the statute which creates the jurisdiction. In this case, the statute does not provide for, or allow of an appeal. The decision therefore, of the Common Pleas on the merits, is final. This court has an undoubted right to examine such proceedings on certiorari, and so far as the merits are exhibited in the record of the proceedings below, to see whether the court has decided correctly, and if not, to set the matter right.

ABBOTT. HUGHES, ET AL.

JUDGES BURNET AND SHERMAN.

1827.

A plaintiff having mistaken his defence at law cannot be relieved in equity.

The complainant states in his bill, that in February, 1823, he made his note to the defendant Hughes, for one hundred dollars, payable in twelve months, either in legal claims on the said Hughes, or in produce: that before the note became due, he purchased a note, given by said Hughes, to one Walker, for one hundred dollars, payable in August, 1823, for the purpose of discharging his own note, and offered it to Hughe's, who informed him, that he had assigned the complainant's note, to the defendant Miller, to secure the payment of forty dollars: that Miller having left the note with Gilliland, he called and informed him, that he was ready to discharge it, by the delivery of Hughes note to Walker which was refused. After this, Miller put the note in suit. The complainant pleaded the facts as above: the plaintiff demurred to the plea: the court sustained the demurrer, because the plea did not aver an offer to assign the note purchased of Walker. The complainant, by leave, amended his plea, by an averment of that fact. On the trial, he failed to prove that he had so offered to assign, and a verdict and judgment were rendered against him. The object of the bill, is to enjoin that judgment. Miller has answered; the bill has been taken pro confesso as to Hughes, and the cause is submitted to the court without argument.

By the COURT.

The facts set out in the bill, are fully supported, but it is very evident, that the remedy of the complainant was at law. The purchase and tender of the note, given by Hughes to Walker, was a legal discharge of his own note to Hughes. It was not necessary for him to assign that note. By the operation of the contract, the purchase of the note from Walker, was for the benefit of Hughes the maker, and intended to extinguish it. It was in fact, a payment on behalf of Hughes, and nothing more was necessary, than an offer to deliver it, as a cancelled note.

It is a general rule, that after a trial at law, the defendant cannot sustain a bill for relief, in equity, on facts which would have been a good defence at law. If the complainant had refused to amend his plea, and had suffered the case to take its course, he might have been put right, either by appeal, or writ of error; but having abandoned his legal defence, he is without remedy, so far as Miller is concerned. His interest, however, does not extend to the whole note. He is seeking to recover a part of the amount, for the benefit of the defendant, Hughes, by whom the bill is confessed, and who certainly has no just or equitable claim on the complainant. Under these circumstances, it would be against equity and good conscience, to suffer the assignee to collect that part of the judgment. As far as his own interest is concerned, he must be permitted to enforce the judg But as to the residue, or so much of it as is to be applied to the use of Hughes, a perpetual injunction must be awarded.

ment.

DIXON, ET AL. v. EWING.

JUDGES BURNET AND SHERMAN.

1827.

A creditor, by releasing the property of the principal taken in execution, exonerates the security, The bill states, that the complainants joined in a title bond to Ewing, as the securities of one Foot, for the conveyance of a tract of land. They had no interest in the transaction. Foot failed to convey the land. Ewing brought suit, and obtained a judgment for one hundred and ninety-two dollars and fifty cents. Execution was taken out on the judgment, and levied on some personal prop erty, belonging to Foot. The property so levied on, wasiafterwards discharged from the execution, and returned to Foot, by order of plaintiff's attorney, without the knowledge or consent of the complainants.

The answer admits the facts in the bill, but denies that the property was restored to Foot, by the direction of the defendants.

The case was submitted on the briefs of counsel.

By the COURT.

As Foot was the principal debtor, and the complainants were his sureties, the judgment creditor was bound at least, to let the law take its course, without interfering to exempt the principal debtor, or to relieve his property, in such a way, as to increase the risk, or eventual loss of the securities. It appears, that property belonging to Foot, had been taken in execution, by which the judgment might have been, in part, discharged; and although Foot's insolvency was notorious, this property was given up by order of the plaintiff's attorney, who must have known, that by doing so, the entire debt would fall upon the sureties. This has been the result, and the question is, whether a judgment creditor, can release the property of his principal debtor, after a levy, and then enforce the collection of the entire judgment, against the sureties. We are of opinion that he cannot, and that these complainants are entitled to a credit on the judgment, for the value of the property so surrendered or relinquished. We do not say that Ewing was bound to pursue the principal to insolvency, before he came on the sureties; but that he had no right to interpose for the protection of the principal, or his property, by discharging either from the debt, to the injury of the sureties; and that having done so, the loss must be charged to his own account, and not to the complainants. The case is not varied, by the allegation, that the defendant did not, in person, authorize the release. He is bound by the acts of his attorney.

The question, is not what degree of diligence is required, or what degree of negligence may be permitted, in the judgment creditor, in relation to the safety of the sureties, but how far he may be allowed to injure them by his direct acts. Our statute for the relief of bail and sureties, is a beneficial one, and although this case as it now stands, is not within its letter, it is within its spirit, at least, so far, as injurious preferences are attempted.

But we are disposed to put the case on the ground of fraud. The release of Foot's property has operated as a fraud on the complainants, by taking from the means of protection on which they must have relied, and which alone, could have induced them to incur the responsibility. They, no doubt, relied on the ability of Foot, to perform his engagement, or to answer the consequences, and any proceeding by the judgment creditor, which has a direct tendency to defeat the calculation, cannot be viewed otherwise, than as a fraud.

After the property of the principal was in the hands of the sheriff, the sureties had a right to the benefit of it. The judgment therefore, must be enjoined as to the value of the property relinquished.

LESSEE OF McCOY v. GALLOWAY.

JUDGES BURNET AND SHERMAN.

1827.

Upon a question of boundary, neighborhood report cannot be received to contradict record evidence.

Course and distance must yield to natural objects, when, and when not.

The parties agreed to dispense with a jury, and the cause was submitted to the court on the testimony.

Corwin and Collet, for the plaintiff. F. and H. Dunlevy, for defendant.

By the COURT.

The lessor of the plaintiff, has the first entry, and the eldest patent, he must, therefore, recover, if his patent covers the land in the possession of the defendant, or any part of it.

The south-west, or beginning corner of Russel's survey, under which plaintiff claims, is sufficiently established. The south boundary line, running east from that corner, is also proved. The plaintiff's patent, calls to run from the aeginning, east, two hundred sixty-six and two-third poles, to a sugar and ash. He now claims by a line, four hundred and eighty poles, to a hickory, beach and oak. His third corner called for, is two beeches and an ash. The corner which he now claims, is two hickories and a beech.

It is in evidence, that when the defendant made his entry, he went to the beginning corner of Russel, and traced his south boundary, for the purpose of as. certaining the lines of his survey, but not being able to find any corner answering the calls of his location, he run from the beginning, the distance. called for by Russel, and made a corner, from which he made his own entry.— Russel's survey contains the quantity called for, without interfering with the entry of the defendant; but the corner he now wishes to establish, will include the whole of the defendant's entry. Some of the witnesses say, that the corners now claimed by the plaintiff, have been considered in the neighborhood, for many years, as the original corners of Russel's survey. It also appears,