dition to pay in gold and not in silver, or in silver and not in treasury notes, be an injury in the sense in which injury implies a violation of legal right, as distinguished from the infliction of loss or damage without legal wrong, still the amount of the injury is obviously a question of fact depending on the state of the market for bullion when the default occurs, and requir ing the introduction of evidence on one side. or on both, for its proper adjustment. Like other questions of the same sort, it should therefore be tried by a jury, and solved by their verdict. guided by the charge of a court. But the plaintiff, instead of pursuing this course, has entered a judgment on the bond, which he has treated as final, and not interlocutory, by proceeding at once to execution. Now, a final judgment in debt, covenant, or assumpsit, or indeed in any proceeding instituted for the recovery of money or damages, is necessarily a judgment for so much lawful money, payable in any money which the law esteems lawful, and has made a legal tender when other payments are in question. Whatever the contract may have been, when once pushed to a recovery it can have but one termination, and end in a judgment, not for what was contracted for, but for an equivalent for the breach of the contract in current coin. There may, indeed, sometimes in replevin or detinue, be a recovery of a specific thing, but never in actions founded on contract, nor in any action for things generally of a specific kind or class; the reason being that every judgment must be final, and furnish an exact measure of what one party is to give and the other to get.

Equity may, no doubt, make a decree, and issue a writ to compel the performance of a contract, specifically and in terms: but then the jurisdiction of equity is discretionary and special, controlled by circumstances, and exercised with reference not only to the strict legal right of the plaintiff, but to what the defendant may in each instance be reasonably required to do, and has it in his power to accomplish. And besides, equity confines this sort of redress ordinarily, if not exclusively, to contracts for the conveyance of land, and will seldom, if ever, compel the fulfilment of an agreement for the sale and delivery of chattels. The writ

which has been issued in this instance, is in effect a decree of specific performance, requiring the defendants to fulfil their contract to the letter, and directing the sheriff, in the event of their default, to fulfil it for them, by converting their lands and good not into money generally, but into the particular kind of money which they contracted to furnish. Such an order seems to me essentially contrary to the spirit in which equity proceeds in enforcing contracts, and would be as little likely to receive the sanction of a chancellor, as of the judges of a Court of common. law.

It has, however, been suggested, that although the plaintiff could not, on a bond or covenant for payment in Spanish dollars, with a warrant of attorney, enter judgment and issue execution For Spanish dollars, there is no reason why he should not have a judgment and execution for silver American dollars, as distinguished from gold, or payable only in gold dollars, and not in japer. One, and to a legal mind, sufficient answer to this is, that uch a judgment would be without a parallel or precedent, and contrary alike to the forms and spirit of the law, which always eeks to pass from the particular to the general, and may well be verse to giving force and perpetuity to a special obligation, that may, in the course of time and events, become difficult to execute, f not of impossible execution. The ordinary, wise, and invariable ourse therefore is, and has been, to refer the injury inflicted by breach of contract, to the period when the contract was broken, o examine what the injured party would have got, if the contract ad been then fulfilled, and what he lost by its non-fulfilment, to stimate this in the currency of the commonwealth, and enter udgment for the amount as thus ascertained; a judgment not in he terms of the contract, while it drowns or merges, and having othing in common with it, except that of being an equivalent in he general and common measure of all value, for the particular orm of value stipulated for in the contract. A contract may be or the delivery of grain, but the judgment on it is not on that ccount for grain, but for as much money as the grain, if delivered, ould have been worth at the time and place of delivery. A judg

VOL. 10.-35

ment on a contract for doubloons would follow the same rule, and be not for doubloons, but for the value which the doubloons would have had if delivered according to the contract. Why should a contract for gold dollars receive a different or more favorable construction, and entitle the party who seeks to enforce it to ar anomalous judgment, not for compensation, but for the things, or rather for the class of things contracted for? Judgments should be so shaped and moulded that the benefit to one party may be attained with the least amount of injury to the other, and this is what the law has done by rendering them for currency generally. and leaving the defendant free to choose that sort of current money which can be obtained with the least difficulty; but a judg ment and execution solely for gold, or exclusively for silver, might impose a burden on the defendant which he ought not to be compelled to bear, and lead to the sacrifice of his property without any corresponding advantage to the plaintiff. And as the present writ of fieri facias sins against these principles, and departs from the even tenor which every judgment should pursue, by limiting the sheriff to one particular kind of currency, instead of leaving the defendant free to pay, and purchasers under the writ free to buy in all, it is set aside in accordance with the prayer of the defendants. Rule absolute.

STROUD, J., dissented.



Contract to pay the Debt of Another, when valid.—A firm sold out their partnership effects to another, who agreed verbally to pay the firm debts. One of the firm creditors sued the purchaser for his debt, relying on the contract of sale, without showing that he was a party to it. Held, thas he could not recover, for the agreement upon which the action was brough was not in writing and signed by the party to be charged therewith, a required by the Act 26th April, 1855. Shoemaker vs. King.

1 From Robert E. Wright, Esq., State Reporter, to be reported in the 4th volum his Reports.

Though such a contract is valid between the immediate parties to it, it is void as a contract in favor of the creditors of the parties, unless they, as a part of the arrangement, give up their original claims and accept the new contract instead. Without this it is void, when expressly made to the creditors, and therefore it cannot be implied as made to them. While the old debt remains, the new contract cannot be a substituted, but is only a collateral one—a promise to pay another's debt, which is forbidden by the statute, as a cause of action. Id.

Act of May 6th, 1844, relative to "Lapsed Legacies," construed.-Distribution per stirpes and per capita.-Construction of Will.—Under section 2d of Act 6th May, 1844, a bequest by a testator to his sister is valid, though she was dead when the will was written, but left children who survived the testator: Minter's Appeal.

Where the testator directed his bequests to be distributed, "share and share alike among the children of my brother Adam, and the children of ny brother Martin, and to my sister Barbara," who died before him leaving children; but by another clause in the will, the mode of distribution was endered doubtful; it was held, that the legal statutory form of distribuion should be applied, and that the legatees should be classified in three lasses, allowing each class to take as their parents would have done, per tirpes: Id.

Distribution of Personal Estate of Decedent as between first and second Cousins.-Under the Act of 27th April, 1855, the children of deceased incles and aunts take by representation, such part of the estate of a ecedent as the parents would be entitled to if living. The rule of disribution is per stirpes and not per capita: Brenneman's Appeal.

That act constituted the grandchildren of brothers and sisters, and the hildren of uncles and aunts, additional classes of collateral heirs, as conadistinguished from next of kin, and they, therefore, take as such, when atitled to inherit, and not as next of kin as under the Act of 1833: Id. The second cousins of the decedent are not entitled to a distribution ader the act whenever they are entitled to inherit, it must be as next 'kin, and their distribution is per capita: Id.

Liability of Stockholder for Debts of Manufacturing Corporation.--inder of Defendants.-Defence to the Action.-The Act of April 20th, $53, supplementary to the Act of April 7th, 1849, entitled an "Act to courage Manufacturing Operations in this Commonwealth," renders the

stockholders in all companies incorporated in pursuance of its provisions, or under the act of 1849 and its supplements, liable for all debts contracted while they are stockholders, although they have paid up the whole of their stock Patterson & Co. vs. The Wyomissing Manufacturing Com pany et al.

Though the corporation is the principal debtor, and the liability of the stockholders is only secondary and collateral, yet the form of the remedy and the character of the right, under the Acts of Assembly, allow the use of separate actions against the primary and secondary debtors: Id.

In an action against stockholders, brought to enforce such liability, the plaintiff may join the corporation, even though he has previously obtained a judgment against it, for a portion of the debt sued for: Id.

It is not a good plea in bar to an action against the stockholders, that the corporation had not paid the bonus of one-half per cent. on the amount of the original capital stock, as required by the state: the proviso to the Act of April 20th, 1853, is not properly a proviso, but an additional law : ld.

Resolutions of City Councils of Harrisburg, not valid unless approved by Mayor and recorded.-Regulations, Resolutions, and Ordinances, defined and distinguished.-A resolution of the city councils, which is to be executed and carried into effect by the mayor, must be presented to him for his approval and be recorded, in order to be valid: Kepner vs. The Commonwealth.

Where by one section of the act incorporating the city, it was provided. that the council may make "by-laws, ordinances, resolutions, and regula tions," and by another, that "by-laws and ordinances" were to be submitted to the mayor for his approval, it was held, that there was no such distin tion between the sections, as would require that "by laws and ordinances should, and "regulations and resolutions" should not be submitted to the mayor, to be approved by him: Id.

Personal Liability of Grantee not implied from mention of Encumbras in habendum of Deed sealed only by Grantor.-Covenant, interpret by intention of Parties.-Remedy to recover Money charged on Lan during Life of Widow.-Devisee of Land subject to Widow's Thirds tascum onere.-One bought land subject to the payment of the dower of a widow charged upon it in the hands of the grantor, but the grantee all not sign nor scal the deed, in the habendum of which, the charge of th dower was expressed: he devised the land to his daughter by his wi

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