
    Peterson versus Willing, et al.
    
    THIS was an aétion for money had and received to tb* Plaintiff’s ufe, founded on the following fails>—On the. 17th of December, 1796, Lcvinus Clarkfon executed a mortgage to Samuel Clarkfon, on certain flores and lots of ground in Philadelphia, to iecure the payment of 8,000 dollars, with intereft. Before the execution of the mortgage, Samuel Clark-fon had advanced or fecured, a confiderable fum of money to accomodate Levinus Clatkfon, (who was in very embarrafled circumftances) and had tklcen a bill of iale of a ihip, See. as an indemnity; which, howéver, he thought was infufficient for the purpofe, and had repeatedly preiled for an additional fecu-rity. About this time, Levinus Clarkfon, being indebted by note to the Plaintiff, and having depofited a confiderable amount of Morris and Nicholfon’s notes, by way of collateral fecurity, propofed to the" Plaintiff to releafe the depofit, and accept in lieu of it, a note endorfed by Samuel Clarkfon, who was then in good credit. The Plaintiff acceeded to the propo-fition; and Levinus Clarkfon, in order to induce Samuel Clark* fon toindorfethe note, promifed to execute the mortgage above mentioned, not only as a fecurity in this tranfa&ion, but as an auxiliary to the fund, for indemnifying Samuel Clarkfon, on account of his previous advances and engagements. Accordingly, on the'13th of December, 1796, the note drawn by Le-vinus Clarkfon, and endorfed by Samuel Clarkfon, was delivered to the Plaintiff; the notes of Morris and Nicholfon were restored to Levinus Clarkfon, ; and the mortgage was executed a few days afterwards. Both the Clarkfons failed hefore the debt due to the Plaintiff was paid: Levinus Clarkfon was discharged under the infolvent laws; and Samuel Clarkfon affigned his property in truft, for the benefit of all his creditors, to the Defendants; who, by virtue of the affignment, had received a confiderable fum arifing from the fale of the mortgaged premi-fes, which had been enforced by a creditor having a previous lien.
    The Plaintiff claimed fo much of the money thus received by the Defendants, as. would be fufficient to fetisfy his debt: And his counfel offered Levinus Clarkfon as a witnefs to prove, that the mortgage, although expreffed in abfolute terms to be for the ufe of Samuel Clarkfon himfelf, was, in fa<ft, given in consideration of the indorfement of the note delivered to the Plaintiff; and on a pofitive promife that the note ihould be paid out of the proceeds of the mortgaged premifes, the furplus only being deftined to exonerate Samuel Clarkfon from, his other engagements for Levinus Clarkfon. Hence it was intendea to argue, that an implied truft was created for the benefit of idle Plaintiff to the amount of his debt.
    The Defendant’s counfel objected to the competency of the propofed witnefs, on t.hefe grounds:— ift. That parol teftimo-ny cannot be admitted to contradidt, alter, modify, or explain, a foletnn inftrunsent under feal:—3nd. That if parol teftimo-ny were at al! adrr.iffible, Levinus Clarkfin was not compel tent to give it; becaufe its effedl would be to invalidatean in-ftrument, to which be himfelf had given fandtion; and though the evidence might not totally deftroy the deed, it would communicate a new diredlion and operation to it, equally within the mifchief, which the rule of the law was ended to guard againft. 1 T. Rep. 296.—3d. That Levinus Clarkfin was excluded by his intereft in the event of thecaufe; for, t„he tendency of" his evidence would be. to enable the Plaintiff to recover out of the fund in the hands of the Defendants, and fo dif-charge the witnefs from, the refponfibility on his note of hand.
   But,

by the Court

It cannot be agreeable to be called on thus fuddenly to give a judicial opiniop, on an important queftion: and, therefore, in the prefent, as well as in every other cale, we fhall be ready to liften to any motion, which will introduce a re-confideration and reviiion of the decifi-ons pronounced in the courfe of a trial.

The ohjedtions, however, do not áppear to be fufficiently cogent to exclude the witnefs. The evidence will not contra-di# the deed, though it may enable the jury to apply the property to the ufes originally intended by the parties. ■ Nor is the evidence calculated to invalidate the deed; but to fupport and diredl it to the pyrpofes for which it was given. As to the interejl of the witnefs, it does not feem to be affedted by the event of this caufe: And the laudáble liberality of courts of juftice, in modern times, has fet us the example, for referring all fuch objections of doubtful and diftant interefts, to the credit, rather than.to the competency, of the party.

The objections are, therefore, over-ruled.

' ON examining the witneffes, it appeared, that at the time the mortgage, was promifed apd executed, and for fome time afterwards, the Plaintiff did not ki'iow of. the tranfadlion; that he furrendered Morris and Nicholfon’s notes, iii confideration. of Samuel Clarkfin’s indqrfement, without reference to any o. th r fecurity; and that the amount du.e. from’ Levinus Clark-fin to'Samuel Clarkfon, exceeded the proceeds of all the fecu-ndes placed in the hands of the latter. In a written ftatement made by Samuel Clarkfon, at the time, however, he had fet forth the engagements, for which the mortgage and other fe-curities had- been gi ven, inferting, among the reft, the note held by the Plaintiff; but this feemed merely to be deferiptiye of the engagements againft which Samuel Clarkfon was to. be indemnified, and not an appropriation of the fecundes, as a fund for paying the perfons to whom he was bound.

E. Tilghman. and'M. Levy, for. the Plaintiff:. Lewis and flallowell, for the Defendant.

The Court expreffed a decided opinion, that, under fuch Gircumftances, there was no exprefs truft, nor any ground for' an implied truft, in favor of the Plaintiff. He had made his bargain Amply on the credit of Samuel Clarkfon's indorfement, without contemplating any other fecurity. The mortgage was taken by Samuel Clarkfon for his own indemnification. The tranfadiions were, therefore, fubftantive and unconnected: And no truft being declared, or contemplated, at the time, a Court of law cannot, on the fuggeftions of humanity, undertake to. create one, in oppofition to" other legal and meritorious claims.

The Plaintiff fuffered a non-fuit.  