DUNHAM v. BAIRD.

[U. S. Circuit Court, District of Pennsylvania, 1875.-1 Law & Eq. Rep. 391.]

REMOVAL OF CAUSE TO FEDERAL COURT-ACT OF MARCH 3, 1875.- On a petition for removal of a cause from a State court, no action of the State court upon either petition or bond is required by the Act of March 3, 1875; it is for the United States court to determine the sufficiency of the latter.

Motion to dismiss suit for want of jurisdiction.

The suit was originally brought in the District Court of Philadelphia County in 1874, and after issue joined was transferred to the court of common pleas.

On June 12, 1875, about a year after the commencement of the suit, a petition to remove to the Circuit Court of the United States for the third circuit was presented by the defendants, citizens of Pennsylvania, who alleged that the plaintiffs were citizens of Connecticut.

A rule to show cause why the petition should not be granted was discharged. On July 26, 1875, a petition to the Supreme Court was granted for a rule to show cause why a writ of peremptory mandamus should not issue to the judges of the court of common pleas, directing them to proceed no further with the cause, and to permit it to be removed to the Circuit Court of the United States. This rule was made returnable in January, 1876. In August, 1875, a bond was filed by the defendants in the Common Pleas No. 3, conditioned as required by the act of Congress, supra, but no action was ever taken approving this bond. A certified copy of the record was on September 1st filed in the Circuit Court, whereupon the plaintiff moved to dismiss the suit for want of jurisdiction.

MCKENNAN, J.-The petition was filed in time, and no action of the State court was required by the Act of the 3d March, 1875, upon either petition or bond; it was for the United States court to determine the sufficiency of the latter, and upon a careful perusal of the Judiciary Act of the 3d March, 1875, the court is of opinion that its provisions were intended to be co-extensive with the powers conferred upon the judiciary in section 2, subsection 1, article 3, of the Constitution of the United States. The petition for removal was not filed too late in the State court as it was presented in the term succeeding that in which the act was passed.

GIBSON ET AL. v. WILLIAMS, HEIR OF WILLIAMS. [U. S. Circuit Court, District of North Carolina, 1803.-2 Hayw. 281.]

HEIR LIABILITY FOR DEBTS OF ANCESTOR. If an heir pay debts of his ancestor, so much of the land which descended to him, as is equal to such payments, shall be deemed to have been purchased by the heir. The surplus of such land shall be charged to him at its value at the time he sold it; not what it was worth at the time it descended to him. The heir is not liable to other creditors of the ancestor for interest on such surplus.

This was a scire facias to subject him to the payment of a debt recovered against the executor of Wm. Williams, his ancestor. He pleaded that he had nothing by devise, and as to what he had by descent, that he had in 1796 mortgaged the lands descended, to certain creditors of his ancestor for eighteen hundred dollars, and had paid bond debts besides to the value of the lands. It appeared he had in 1801 sold the equity of redemption, and these questions arose as to the value above the debts paid for his ancestor-first, shall he pay interest for the surplus? and it was held by MARSHALL and POTTER, judges, that he should not; secondly, as to the value, shall it be estimated at its worth at the death of the ancestor, or at the time of the mortgage, or at the time of sale in 1801?

PER CURIAM.—So much of the lands, as the money secured by the mortgage was worth, shall be deemed to have been purchased by the heir, by payment of the debts of the ancestor; the surplus of the land shall be estimated at its worth at the time of sale in 1801. It must not be valued at its worth at the time of descent to the defendant, for the intermediate profits are a recompense for the expenses incident to holding the land, such as taxes and the like.

Verdict and judgment accordingly.

TEASDALE v. JORDAN, ADMINISTRATOR IN RIGHT OF THE WIFE OF BRANTON.

[U. S. Circuit Court, District of North Carolina, 1803.-2 Hayw. 281.]

PLEADING-ADMINISTRATOR-FAILURE OF ASSETS. An administrator may be permitted to amend by adding a plea where judgments have been obtained to the amount of the assets in his hands since he first pleaded.

This cause being called for trial WOODS moved to add a plea and stated that since the defendant pleaded, judgments had been obtained against him to the amount of the assets in his hands.

And by MARSHALL, Chief Justice, to which POTTER, Justice, assented; it is in the discretion of the court to permit the addition of a plea at any time before the trial; and the court will admit the plea where the justice of the case requires it. And the plea now offered is such an one as justice requires the admission of. It would be a monstrous position that when judgments, after plea, had taken away all the assets, the executor or administrator should, notwithstanding, be compelled to answer the debts first pleaded to. The plea was added.

SANDERS v. HAMILTON.

[U. S. Circuit Court, District of North Carolina, 1802-3.-2 Hayw. 226, 282.]

INDEMNITY MEASURE OF DAMAGES.-A. sold to B. a negro, and agreed that if B. would defend a suit brought against him for the negro, he, A., would make good the damages sustained. Upon the negro's being recovered from B. it was held that he was entitled to recover from A. in damages the value of the negro at the time of the recovery, and not the present value. EVIDENCE-EFFECT OF JUDGMENT AS.—In this case it was held further that the rec

ord of the recovery againt B. by a third person was not evidence against A. of such third person's title; but was evidence to show the fact of B.'s eviction, and the amount of the damages.

[226] MARSHALL, Chief Justice.-It is said Hamilton warranted the wench from whom descended the slaves afterwards recovered by Streeter from Sanders. The record of that recovery is now offered to be read to prove Streeter's title. I am of opinion that as Hamilton was no party to that suit, nor privy, it cannot be read to prove Streeter's title; it may, however, to show that Sanders was evicted.

And it was accordingly read for that purpose only.

[282] The declaration stated that Hamilton's agent had sold a negro for Hamilton to Sanders, who was sued for the increase; in consideration whereof, and that Sanders had promised he would defend the suit, Hamilton promised that if judgment should be obtained against Sanders, he, Hamilton, would make

good the damages; that Sanders did defend the suit, and had judgment against him. One question upon the trial was, how the damages should be assessed; whether according to the present value of the negroes, or of the value when recovered.

MARSHALL, Chief Justice. The jury should assess damages according to the value at the time of recovery; for supposing he was to have the present value, he should bear the loss in case of the death of the negroes, or other loss since the judgment; and besides, the plaintiff's demand arises immediately upon the recovery, and is not to be influenced by after circumstances.

In the progress of this cause it was moved that the record of the recovery between Streeter and Sanders should be read.

PER CURIAM.-It may be read to prove that there was a recovery and the amount of damages, but not to prove that Streeter had title, because Hamilton was not a party or privy.

A juror was withdrawn, and the plaintiff's counsel moved for leave to add a count, which the court said was necessary, to arrive at the merits, but would not admit the amendment except upon the condition of paying all the costs to this time. He accepted of these terms, and made the amendment.

WILKINGS v. MURPHEY, ADMINISTRATOR, ETC.

[U. S. Circuit Court, District of North Carolina, 1803.-2 Hayw. 282.] LIMITATION-NEW PROMISE BY ADMINISTATOR-EFFECT OF.- Whether an admission of a debt of the intestate by an administrator, where the intestate has been dead more than three years, will take the case out of the Statute of Limitations, quare? ASSUMPSIT-JOINDER OF COUNTS. - A count upon the intestate's promise, and upon that of the administrator to pay the debt of the intestate, may be joined.

Plea, the act of limitations; replication, that the intestate assumed, and the evidence offered was that the administrator promised within three years. It was objected that such evidence was not that which the replication offered, and therefore should not be received. To this it was answered that an admission of the debt by the administrator takes the case out of the act; and there is no other way of giving the evidence to the

jury but under a replication such as this. If the replication should state a promise of the administrator, that would be a departure from the declaration, which states a promise of the intestate. And you cannot in the declaration join a count founded on the promise of the administrator with that against the intestate. Such counts cannot be joined, the judgments upon them being different; the plaintiff's counsel cited 4 T. 347; H. Bl. 108, 110; e coutra, was cited H. Bl. 104.

MARSHALL, Chief Justice.-I doubt whether an admission of the debt by the administrator will take the case out of the act of limitations; for the admission presupposes a promise made within three years, and how can this be when the intestate has been dead ten years? If it were true that an admission of the debt did take the case out of the act, and it could not be given in evidence at all unless allowed of upon such a replication, I should think that a strong argument for admitting the evidence. But the premises are not correct; it is not true that a count upon the intestate's promise, and upon that of the administrator to pay the debt of the intestate may not be joined; the contrary is directly proved by the case cited from H. Bl. 104, where the administrator upon an insimul computasset and promise thereon was held liable de bonis testatoris. The other cases cited, which state that he is bound de bonis propriis, are where neither the consideration nor the promise arose after the death of the intestate, and in the time of the administrator; here the promise was on a consideration arising in the time of the intestate. The cases are reconcilable.

The verdict founded on the admission of the evidence was set aside, and leave given to the plaintiff's counsel to add a count, the plaintiff paying costs up to this time.

MURRAY & MURRAY v. MARSH & MARSH.

[U. S. Circuit Court, District of North Carolina, 1803. 2 Hayw. 290.]

EVIDENCE-DISCHARGED BANKRUPT INDORSER AS WITNESS. - A bankrupt who indorsed a note before his bankruptcy, and who has obtained his certificate, is a good witness for the indorsee.