for $225; April 2, 1884, at two months, for $100; April 10, 1884, at three months, for $100; April 2, 1884, at four months, for $125; and May 17, 1884, at 60 days, for $267.65; and that the payment of the account was thereby extended according to the tenor and effect of the several notes. Deducting the credits and the amount of these notes, the balance of the account on July 1, 1884, was $52.67, and the plaintiffs say that the suit instituted on that day was for the recovery of that portion of the account represented by this balance and the first two of the notes above recited, which were then due and unpaid; that the itemized copy of account filed showed a balance of $52.67, and was accompanied by copies of the-two notes only. The verdict and judgment in that case was for the plaintiff in the sum of $393.30. The present action, they say, is brought to recover that portion of the account represented by the last three notes.

The suit is not upon the notes; it is for goods sold and delivered. A copy of the book entries, properly verified by the oath of the plaintiff’s book-keeper, is filed, and these entries are, as we have said, precisely the same as were contained in the former suit. The balance, however, which the account discloses to be “due and owing thereon,” is $375.46, which is, as the account itself shows, the amount of the whole five notes before mentioned, with the interest thereon, and the $52.67, which, with the first two notes, was embraced in the previous action. The plaintiff’s claim at the trial, however, notwithstanding the showing of the account and of the accompanying affidavit, was for that part of the account only which is represented by the last three of the notes, and, as showing this, we are referred to an indorsement on the narr to that effect.

It is admitted that the notes were neither given nor received in payment of the account; that there was no other extension of time on the part of the plaintiffs when the notes were given than was to be implied from their receiving them. Mr. \Vilson, the plaintiff, testified that they were not considered as a payment until they were paid. “They weren’t taken,” he says, “as a settlement of the account, because they weren’t paid. They were charged back to his account, the same as you would take a. check. If the check is good, it is all right.” A promissory note, taken for the whole or part of a debt, will only operate as an extinguishment of it if so intended by the parties. The notes did not, therefore, discharge the original debt evidenced by the account. They were taken merely for convenience, and as concurrent securities only. A debt due upon a continuous account of book entries, made in the ordinary course of dealing, is entire. It cannot, without agreement to that effect, be split up into separate and distinct demands so as to form the basis of several suits. If divisible into two parts, it may, on the same principle, be divided into as many parts as it contains distinct items of charge, and no one would suppose that an action might be instituted on. every item in a book-account. It is undoubtedly true, however, that if parties contract that a debt shall fall due and be payable in installments, they have severed it, and distinct recoveries may be had for the several installments in portions of the debt, according to the agreement, with

out involving the whole debt; but when the consideration is fully executed, and there is no stipulation of severance, the obligation to pay is ordinarily indivisible and entire. Sterner v. Gower, 3 Watts & S. 143', Logan v. Cafirey, 30 Pa. St. 196. .

In this case, however, it is not pretended, as we have said, that there was any actual or express agreement to this effect. Mr. Wilson himself says there was “no special agreement” about extending the account more than was implied in taking the notes; that the notes were credited in the account, and charged back if not paid. They can therefore neither be regarded as effecting payment of the debt, nor an extension of the time of payment; for, “where a creditor takes from his debtora note payable at a future day on account of his claim, the law raises no implication that he agrees to give time until the maturity of the note for the payment of the original debt; but the agreement must be proved as a fact, dependent upon the understanding of the parties at the time when the security was given.” Shaw v. The Church, 39 Pa. St. 226. See, also, Weakly v. Bell, 9 Watts, 273; Bank, etc., v. Potlus, 10 Watts, 150. When the cause of action is the same, a former judgment in a suit between the same parties, though an inadequate one, is a bar to a second recovery. Pinney v. Barnes, 17 Conn. 420. So an action brought for a part of an entire and indivisible demand, and a recovery therein, will bar a subsequent suit for the residue of the same demand. Bendernagle v. Cocks, 19 Wend. 207. See, also, Staples v. Goodrich, 21 Barb. 317; Warren v. Comings, 6 Cush. 103; Lucas v. Le Compte, 42 Ill. 303.

There can be no question, under the evidence, that on July 11, 1884, if, in case of the threatened insolvency of the defendant, the plaintiffs had desired to collect the whole debt, they might have done so. The entire claim and demand of the plaintiffs was then due and unpaid, and they had the undoubted right to sue for and recover it. It is equally clear that the plaintiffs had a right, in the first suit, to proceed upon the two notes then due, which they then held as concurrent or cumulative securities; but they proceeded also upon the account, declaring for goods sold and delivered, and filed an itemized statement or bill of particulars embracing every item of charge in the account filed in the present case. If they allowed credit upon it, to which the defendants were not entitled, and in consequence failed to recover as much as they were in fact entitled to recover, their failure must be attributed to a misapprehension as to the effect of such a proceeding; but, in our view of the case, they are certainly barred from recovering in a second suit for the same subject-matter embraced in the first. To permit a party to recover in a second action What was included in and might have been recovered in the first, would be against the policy of the law, and unjust, because it would harass a defendant, and expose him to double costs. Brenner v. Moyer, 98 Pa. St. 274; Hess v. Heeble, 6 Serg. & R. 57.

The judgment is therefore reversed.

Appeal of ADAMS, Adm’r, etc.1

(Supreme Court of Pennsylvania. October 4, 1886.)

1. COURTS—JURISDICTION—OBJECTION TO—WAIVER OF.

While it is true that manifest want of jurisdiction may be taken advantage of at any stage of the cause. the court will not permit an objection to its jurisdiction to prevail, in doubtful cases, after the parties have voluntarily proceeded to a hearing on the merits, but will administer suitable relief.

2. EQUITY—ACCOUNT—COMMON Law.

Under the act October 13, 1840, (Purd. Dig. 692, § 19,) courts of equity have concurrent jurisdiction with courts of common law in settling accounts.

Appeal from common pleas, Cumberland county.

Appeal by David E. Adams, administrator of James D. Willoughby, deceased, dismissing a bill in equity filed by him against Frank Gardner and George S. Beetem, surviving partners of F. Gardner & Co. The facts of the case are fully set forth in the opinion of the supreme court.‘

S. A. Johnston and Hepburn, Jr., (fc Stuart, for appellant.

Equity has concurrent jurisdiction with law in cases of account. Bisp. Eq. 484; Pom. Eq. Jur. 473, note 1; Act October 13, 1840.

Henderson (fr Hays, for appellees. .

Equity will not entertain jurisdiction where the accounts are all on one side, and no discovery is sought. Association’s Appeal, 83 Pa. St. 441; Gloninger v. Hazard, 42 Pa. St. 390; 1 Story, Eq. §§ 458, 459; Adams, Eq. 1-10; 1 Daniell, Ch. Pr. 606. The answer in the circuit court is an account stated. Porter v. Patterson. 15 Pa. St. 236; Bevan v. Cullen, 7 Pa. St. 281; Sergeant v. Ewing. 36 Pa. St. 156; Smedley v. Williams, 1 Pars. 359; Thompson v. Fisher, 13 Pa. St. 310. Plaintifi has an ample remedy at law. Grubb’s Appeal, 90 Pa. St. 228; Pittsburgh (fl 0. R. R.’s Appeal, 99 _Pa. St. 177.

STERRETT, J. The main question presented by the second and third specifications is whether the learned judge erred in dismissing appellant’s bill for want of jurisdiction. This question should be determined, not by what may have been shown by the answer or testimony adduced in support thereof, but by what appears on the face of the bill itself. If the averments therein contained, assuming them to be true, present a case of which equity has either concurrent or exclusive jurisdiction, the bill should-not have been dismissed, especially in view of the fact that the appellees did not object, in limine, by plea or otherwise, to the jurisdiction of the court. While it is true that manifest want of jurisdiction may be taken advantage of at any stage of the cause, the court will not permit an objection to its jurisdiction to prevail, in doubtful cases, after the parties have voluntarily proceeded to a hearing on the merits, but will administer suitable relief. Story, Eq. J ur. § 464. As was said in Sunbury dc E. R. Co. v. Cooper, 33 Pa. St. 278, if the court in which the suit is brought has jurisdiction of the cause of action both at law and in equity, it may proceed to give relief, unless the bill be demurred to on the ground that the proper remedy is at law.

After averring that in January, 187 8 , letters patent were issued by the United States to James D. Willoughby, his intestate, for “new and useful improvements in the construction of seed-planters, * * * granting him, his heirs, administrators, and assigns, the exclusive right of making, using, and vending to others to be used, the said invention,” for the term of 14 years, plaintiff further averred, in substance, that said letters patent were legally extended for the further term of 17 years from January 26, 1872; that, shortly after said last-mentioned date, Willoughby, the patentee, gave defendant’s firm, F. Gardner & Co., a parol license or permission to manufacture and sell the improvements covered by the extended letters patent during the term thereof, on consideration of which they promised and agreed to render to the patentee annually an account or statement of the number of said seed-planters manufactured by them each year during said extended term, and pay him therefor a royalty of five dollars for each seed-planter so manufactured by them; that, in pursuance of said parol license or permission, defendant’s firm manufactured and sold said seed-planters (commonly known as “grain-drills”) during the whole of said extended term of seven years; that no account was ever rendered by defendants to plaintiff’s intestate of the number of seedplanters manufactured by them under said parol license, except for the year 1873, although they did from time to time make small payments to him on account, amounting in all to 81,100; that since the death of Willoughby, the patentee, in July, 1882, plaintiff, as administrator of his estate, has demanded of them an account, and payment of the balance due the estate, and they have refused to furnish the same; that the only knowledge plaintiff has of the transactions between Willoughby and defendants is what he has learned from the papers and correspondence of Willoughby which have come to his hands as administrator; and praying that an account may be taken of the number of seed-planters manufactured by defendant’s firm, F. Gardner & Co., under said parol license, until the expiration of said extended letters patent, and of moneys owing by them to decedent’s estate for royalty under the parol license, and of all moneys paid by defendant’s firm to Willoughby in his life-time; that they may be decreed to pay complainant the balance that may appear to be due and owing, etc.; and for such other and further relief as to the court shall seem meet and the nature of the case require.

The facts thus averred, and the relief prayed for, necessarily involved an account of the grain-drills manufactured and sold by defendants’ firm in pursuance of the contract; and there appears to be no good reason why that relief cannot be better administered by a court of equity than in a court of law. The means of knowledge necessary to a correct statement Of the account was almost entirely within the control of defendants, and it was only by a discovery on their part that it could be made available to plaintiff.

The patentee had an exclusive property in the letters patent, and doubtless the object of his agreement with defendants’ firm was to derive revenue therefrom by the sale of individual rights in connection with the drills manufactured and sold by them. To that end they agreed to ren

der an account to him periodically of the number so manufactured and sold. While the agreement did not in terms create the ordinary relation of principal and agent or factor, it did establish a relation of trust and confidence that is substantially the same. The patentee was dependent on defendants for a just and correct account of the individual rights disposed of by them in pursuance of the contract. Without such account it was next to impossible for him to ascertain how many such rights had been sold, and consequently how much was due and owing by defendants. In view of the express agreement to account, in connection with other facts averred in the bill, creating between the parties a relation of trust and confidence in regard to the letters patent, we think a case is presented in which an action of account render, on the common-law side of the court, could have been maintained. If so, equity has concurrent jurisdiction under the act of 1840, which invested courts of common pleas with “all the powers and jurisdiction of courts of chancery in settling partnership accounts, and such other accounts and claims as by the common-law usages of this commonwealth have heretofore been settled by an action of account render,” and provides that “it shall be in the power of the party desirous to commence such action to proceed either by bill in chancery or at common law.” Purd. 591, pl. 4.

It has been suggested that defendant’s answer to the bill filed in the circuit court of the United States, containing statement of grain-drills sold by them from 1872 to 1878, inclusive, was in effect an account stated, and hence it was unnecessary for plaintiff to resort to a bill in equity for the purposes of discovering and stating an account. The answer to this is that full discovery, such as plaintiff was entitled to, was not contained in the answer referred to; and, moreover, plaintiff was not bound to accept the statement as correct. He had a right to demand production of defendant’s books, and, by examination of defendants themselves, elicit such facts as were peculiarly within their knowledge in relation to the number of drills manufactured in pursuance of the contract. The fact that he subsequently waived that right, and agreed to accept as correct the admissions contained in the answer referred to, could not oust the jurisdiction of the court below. For these and other reasons that might be suggested we think the learned judge erred in the matters complained of in the second and third specifications, and espe. cially in dismissing the bill for want of jurisdiction.

The subject of complaint in the first specification is the refusal of the court to sustain plaintiff’s first exception to the master’s report, viz.: The master erred in holding that “all sums due for drills made prior to the year 1877 are barred by the statute of limitations.” The effect of this ruling was to preclude recovery for 105 drills sold by defendants in 1876. According to the master’s finding it was the duty of defendants to account on the first of January in each year for all drills sold during the preceding year. They were not liable, therefore, to account and pay for the 106 drills in question until January 1, 1877, which is within the six years prior to filing the bill. The legal conclusion of the learned master was not warranted by the facts as he found them, and hence the