THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES IH REPORTS OF CASES- ADJUDGED IN THE SUPREME COURT PENNSYLVANIA, IN THE EASTERN DISTRICT. c . , BY THOMAS I. WHARTON, WITH REFERENCES TO CASES IN THE SUBSEQUENT REPORTS, BY JOHN SWORD. CONTINUED BY I. TYSON MORRIS. VOL. I. CONTAINING THE CASES DECIDED AT DECEMBER TERM, 1835, AND MARCH TERM, 1836. PHILADELPHIA : T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, PUBLISHERS AND IMPORTERS, No. 535 CHESTNUT STREET. 1884. 45 1835 1664- Entered according to the Act of Congress, in the year 1884, By T. A J. W. JOHNSON & CO., in the Office of the Librarian of Congress, at Washington. TABLE OF THE CONTINUED ANNOTATIONS CASES REPORTED IN THIS VOLUME. IN the present edition of Wharton's Reports, the Editor has noted at the end of each case the book and page of any citation of that case in the subse- quent decisions as far as the end of 9 P. F. Smith. To some of the cases he has also added notes of other subsequent decisions involving the same points but containing no such citation. J S May 11, 1870. The former edition of Wharton's Reports was annotated by Mr. Sword with, inter alia, references to the citations of the cases in Wharton to be found in the reports down to 10 Smith ; and to Acts of Assembly. These have been continued by the undersigned, and include references to such citations in the State Reports from 10 Smith to 3d Outerbridge and 12 Weekly Notes of Cases inclusive. Being prepared too late to be printed at the end of each case in this volume, these continued annotations are prefixed here. I. TYSON MORRIS. January 14, 1884, Philadelphia. BEAUMONT'S CASE, p. 52. A finding that the person " was an imbecile and had been so since her birth," is bad ; In re Estate Catharine Gaul, 7 W. N. C., 522, (C. P.,) see Act 13 June, 1836, P. L. 592, Purd. Dig., (ed. 1873,) 979, for the jurisdiction and proceeding in lunacy. BROWNING v. M'MANUS, p. 177. Referred to upon the point that every presumption in favor of the regularity of an award is made in the Supreme Court ; Finch v. Lamberton, 12 Smith, 373. ^And that court will not regard matter extrinsic to the record ; Shisler v. Keavy, 25 Id., 82. TABLE OF THE CONTINUED ANNOTATIONS BURCHARD v. REES, p. 377. As to what application of the proceeds a sheriff, trespasser in sell- ing goods, cannot claim in mitigation of damages. See Dallain -. p, 6 W. A S., 323 ; Carrier v. Esbaugh, 20 Smith, 239. BURR r. SIM, p. 252. Referred to as recognizing the principle of equitable conversion ; Evans' Appeal, 13 Smith, 186. As to an election to reconvert operating as a purchase ; Foster's Appeal, 24 Id., 399. As to what effects an equitable conversion ; Jones v. Caldwell, 1 Outer-bridge, 45 ; s. c., 9 W. N. C., 460. When there is none the devisee is not a purchaser; Howard's Appeal, 11 W. N. C., 412. COMMONWEALTH V. ALLBURUER, 469. Referred to as to Holmes' map and the history of the public right* in the squares of Philadelphia ; Baird v. Rice, 13 Smith, 497, 498. COMMONWEALTH v. COUNTY COMMISSIONERS, p. 1. Referred to as to the practice of issuing orders from the Quarter Sessions for the payment of Philadelphia road damages; In re Sedgley Avenue, 7 W. N. C., 4 ; where see a review of the legislation as to, and the appropriate method of enforcing their payment ; re- ferred to also on same point in dissenting opinions, In re Kensington and Oxford Turnpike Co., 10 Id., 185. COMMONWEALTH v. EARLE, p. 525. The jury may, however, in the case of an alleged murder by poi.-mi. Hud the accused guilty of murder in the second degree; Lane v. Commonwealth, 9 Smith, 371 ; Schaffner v. Commonwealth, 22 Id., 00, and femble the degree must appear on the record ; Lane v. Com- monwealth, supra. As to sentence on a verdict " guilty in manner and form as he stands indicted," see Johnson v. Commonwealth, 12 Harris, 386 ; and Act 15 Feb'y, 1870, 2, P. L., 15. As to the defendant's right to a writ of error in capital cases, see Schoeppe v. Commonwealth, 15 Smith, 51 ; Haines v. Common- wealth, 11 W. N. C., 289, and statutes there referred to; Act 24 March, 1877. 1, P. L., 40; Purd. Dig., (ed. 1873,) 2308, pi. 2. As to Supreme Court's duty as to the degree of the crime under the Act of 1870, see Staup r. Commonwealth, 24 Smith, 458. COMMONWEALTH v. KINO, p. 448. As to the effect of the repeal of a statute upon a claim for a penalty thereunder, see Commonwealth v. Standard Oil Co., 12 \V. N. C., 293. COXE V. TlLGHMAN, p. 282.. Referred to as to the right to amend ; Meason v. Kaine, 17 Smith, 131 ; Wilhelm's Appeal, 29 Id., 135; s. c., 2 W. N. C., 59. TO THE CASES REPORTED IN THIS VOLUME. DELAMATEK'S ESTATE, p. 362. Distinguished as being a case of an executed transfer of property without fraud ; Painter's Estate, 6 Wright, 158. Referred to as to the grounds for the rescission of an executed contract ; Stephens' Appeal, 6 Norris, 207 ; Campbell v. Patterson, 14 Id., 453. As to dealings between trustees and their cestui que trusts, see Dundas' Appeal, 14 Smith, 325. FREYTAG V; POWELL, p. 536. This is a District Court of Philadelphia case ; see infra, p. 471. Referred to as to land not appropriable by warrant from the land office ; Poor v. M'Clure, 27 Smith, 221 ; and see Commonwealth v. Boley, 1 \V. N. C., 303, where a similar patent to Freytag was vacated by scire facias, fraud in Freytag being also alleged. FRITZ v. THOMAS, p. 66. Referred to as to a decedent's debt not being revived by his ad- ministrators' promise to pay ; Campbell v. Fleming, 13 Smith, 244; Burt r. Herron, 16 Id., 404; Stephens v. Cotterell, 3 Outerbridge, 192. Nor is an executor personally liable on an oral promise on the mere consideration of assets ; Act 26 Apr., 1855, 1, P. L., 308 ; Okeson's Appeal, 9 Smith, 99. HART v. HILL, p. 124. Referred to for the propositions : that the low water mark is the limit of a grant with a navigable river boundary; Stover v. Jack, 10 Smith, 343 ; Wood v. Appal, 13 Id., 221. That a fishery is a place in a river with an incorporeal easement on the land of the riparian owner, and may be granted separately from the soil ; Tini- cum Co. v. Carter, 11 Id., 29, 37, 38, 39, (and in the Court below, Ibid, 33). That a riparian owner's right to an exclusive fishery is dependent on his compliance with the Acts of 1804 and 1809 ; Ibid. 36, 37 ; and see Harvey v. Vandergrift, 1 W. N. C., 629 ; Common- wealth v. Watson, 8 Luz. L. Reg., #)5. HEPPARD v. BEYLARD, p. 223. As to a debtor's right to buy and use as set-off a promissory note,, whereof his insolvent creditor is the maker, see McGowan v. Bud- long, 29 Smith, 470 ; and its limits, Long v. Ins. Co., 6 Barr, 421. INGHAM v. SNYDER, p. 116. Referred to in Missimer v. Ebersole, 6 Norris, 110; s. c., 6 W. N. C., 201 ; holding the issuance of and levy under an alias fi. fa. of goods partially different from those levied under the original fi. fa., to be an abandonment of such prior levy. As to the return of certain ^i. fas. to the second term, see Act 11 June, 1879, P. L., 122. TABLE OF THE CONTINUED ANNOTATIONS KIRKHAM v. SHARP, p. 323. Referred to as to the want of right in the owner of a tenement to surcharge an appurtenant easement ; Coleman's Appeal, 27 Smith, 275 ; Van Ohlen's Appeal, 20 Id.. 63 ; and see Carty's Appeal, 5 W. N. C., 241. As to an action on the case being a remedy for obstructing a right of way ; Lindeman r. Lindsey, 19 Smith, 102. KRIDER v. LAFFERTY, p. 303. Referred to as to what certainty of subject-matter of a deed is necessary ; Tryon r. Munson, 27 Smith, 259 ; s. c., 1 W. N. C., 541. As to the visible possession of land by a third person being notice of his title to a purchaser ; Hottenstein v. Lerch, 12 W. N. C., 7. LANCASTER v. DENORMANDIE, p. 49. Followed as to the proposition that an opinion filed in the Common Fleas, not at the request of either party or counsel, is not a part of the record ; Bartolett v. Dixon, 23 Smith, 133. And such re- quest must appear of record ; Alexander r. Weidner, 1 Norris, 455 ; 8. c., 3 W. N. C., 245, (where see a review of the legislation on this subject). But see Act 24 March, 1877, 1, 2, P. L., 38; Purd. Dig., 2153, (ed. 1878,) which, however, is directory; Scheuing v. Yard, 7 Norris, 286 ; and see Heiskell v. Bank, 8 Id. 155. McBRiDE v. DUNCAN, p. 269. As to special pleas averring facts provable under the general iwue, see Biddle v. R. R., 13 W. N. C., 467, (C. P.,) and cases there cited ; 1 Phila., 178, (D. C.,) 3 Id., 92. MCKNIGHT v. READ, p. 213. As to what provision the Act of 1833 contemplates for an after- born child, see Willard's Estate, 18 Smith, 327. Referred to as to the effect of probate of a will pro tanto revoked ; Hegartv's Appeal, 25 Id., 516. McLEOD v. LATIMER, p. 532. Stated in Brightlv's Digest to apparently have been overruled by Miller's Estate, 1 Norris, 113; Brough's Estate, 21 Smith, 460; Graef's Appeal, 29 Id., 146. Sed Qwzre f McWiLLiAMS v. HOPKINS, p. 276. Referred to as to what is not taxable as costs ; Caldwell v. Miller, 10 Wright, 235. METTS' APPEAL, p. 7. The jurisdiction in this case denied the Orphans' Court has been supplied by subsequent legislation. That court has jurisdiction to TO THE CASES REPORTED IN THIS VOLUME. make distribution of a decedent's estate in the hands of executors and administrators, to and among the persons, including creditors, entitled to the same, and this whether the estate be solvent or in- solvent ; and as incident to this power, that court can decide all ques- tions necessary to a proper distribution of such fund ; Act 16 June, 1836, 19, P. L., 792 ; Br. Pur., (ed. 1873,) 1104, pi. 8; 13 Apr., 1840, 1, P. L., 319 ; Br. Pur., 446, pi. 200 ; Gochenauer's Estate, 11 Harris, 460; Haminett's Appeal, 2 Norris, 392, and cases there cited ; Williamson's Appeal, 13 Id., 231 ; Otterson v. Gallagher, 7 Norris, 355. PHILADELPHIA v. DAVIS, p. 490. Referred to on the subject of the asserted distinction between the efficiency of an express and implied condition to raise an election in certain cases; Van Dyke's Appeal, 10 Smith, 489, 492. As to the necessity in order to apply the doctrine of equitable election of a clearly expressed or necessarily implied intention of the testator ; Stokes' Estate, 11 Id., 145. PHILADELPHIA LIBRARY Co. v, INGHAM, p. 72. Referred to as to the conclusiveness of a judge's decision upon his competency under the special court acts ; Philadelphia v. Fox, 14 Smith, 185. PULLEN V. RlANHARD, p. 514. Referred to on the subject of the donor's right to control the alienation of property given a married woman ; Dodson v. Ball, 10 Smith, 495, 496 ; and see Maurer's Estate, 5 Norris, 380 ; Twining's Appeal, 1 Outerbridge, 36. REDDILL'S CASE, p. 445. The Supreme Court cannot discharge on Habeas Corpus a person imprisoned by virtue of the sentence of a court of competent juris- diction; Commonwealth v. Keeper, 2 Casey, 279. Nor will the Supreme Court by such writ override the statutory discretion of the inspectors to refuse a deduction of time from the sentence ; Common- wealth v. Halloway, 6 Wright, 446. But where a person was duly sentenced and confined in a work-house and was illegally discharged therefrom and was illegally re arrested and confined in a county jail, the Supreme Court discharged him on Habeas Corpus; Com- monwealth v. Smith, 11 W. N. C., 34. REIGART v. EHLER, p. 18. The words in the third line from the end of the syllabus " deed of 1829" should be deed of" 1830." In this case there was no sufficient evidence that Ehler ever held under Reigart as landlord ; see pp. 24, 25. TABLE OF THE CONTINUED ANNOTATIONS. ST. MARY'S CHURCH v. MILES, p. 229. time A|l|;il. II C7UJ11II, '!_ . J-lll'l-I \ V. 1.1III-K IIKIII. +*s -.., vvr. A release of a ground rent is now in certain cases to be presumed from lapse of time; Act 27 April, 1855, 7, P. L., 369; Br. Pur., (ed. 1873,) 752, pi. 18. SKERRETT v. BURD, p. 246. Followed as to the revocation of a devise of real estate by its con - version in testator's lifetime ; Pleasants' Appeal, 27 Smith, 367 ; s. c., 2 W. N. C., 26. TYRON v. MILLER, p. 11. Referred to in Conroe v. Conroe, 11 Wright, 200, as to amend- ments at Common IJO.MO of the declaration being in the discretion of the court below ; see also Bailey v. Musgrave. 2 S. & R., 219 ; Cald- well v. Remington, 2 Wh., 132; Burk v. Huber, 2 Watts, 306, 313. But the Supreme Court reversed the court below for allowing an amendment to the declaration changing the cause of action ; Royse v. May, 12 Norris, 454. As to what is not a different cause of action, see Schoneman v. Fegley , 7 Barr, 433, and cases there cited ; Knapp v. Hartung, 23 Smith, 290 ; Wilhelm's Appeal, 29 Id., 120. An amendment shall not deprive the defendant of the right to plead the Statute of Limitations to the cause of action ;- Leeds v. Lockwood, 3 Norris, 73, and cases there cited ; Tyrill v. Lamb, 15 Norris, 464. UNION CANAL Co. v. YOUNG, p. 410. Referred to as to what is necessary to support the plea of being a bona fide purchaser for value without notice ; Fessler's Appeal, 25 Smith, 502. As to the presumption that in taking land for a canal the fee is acquired ; Wyoming Co. v. Rice, 31 Id., 175 ; s. c., 3 W. N. C., 227 ; and see Defaunce v. Brooks, 8 W. & S., 67 ; Ogden v. Brown, 9 Casey, 247, that the fee will pass in any contract of sale without words of inheritance. As to what is not a base fee, see Seebold v. Shitter, 10 Casey, 133. VANARSDALE v. RICHARDS, p. 408. Referred to as to the forum in which an assignee for creditors is answerable ; Holt's Appeal, 2 Outerbridge, 257 ; s. c., 10 W. N. C.. 549. WIMMER'S APPEAL, p. 96. Referred to as to the Orphans Court's jurisdiction in cases of testa- mentary trusts ; Leslie's Appeal, 13 Smith, 365 ; Dundas' Appeal, 14 Id., 331, 332. A trustee de son tori is not there accountable; Delbert's Appeal, 2 Norris, 468. JUDGES DURING THE PERIOD OF THESE REPORTS. JOHN BANNISTER GIBSON, Esq., Chief Justice. MOLTON C. ROGERS, Esq. CHARLES HUSTON, Esq. Justices. JOHN KENNEDY, Esq. THOMAS SERGEANT, Esq. ATTORNEY GENERAL. JAMES TODD, Esq. Vlll TABLE OF CASK. M'Williams v. Hopkins 275 I " T. " 276 Mason T. Council :'>H Mayor, &c. v. Davis 490 Melts' Appeal . 7 Miles, St. Mary's Church v. 229 Miller, Tryon v. 11 Moon? v. ilnmpton 488 Murphy, Richards v. 185 N. Northern Liberties, Spring Gar- den v. 25 O. Odenwelder v. Odenwelder 108 Grain, Sletor v. 106 P. Pember's Case 439 Philadelphia v. Davis 490 Philad. Library Co. v. Ingham 72 Savings Institution, Case of 461 Powell, Freytag v. 536 Prescott v. Union Ins. Co. 399 Pullen v. Rianhard 514 R. Reed, M 'Knight v. 218 Reddill's Case 445 Roes, Bun-hard v. 377 Reigart v. Ehler 18 Rianhard, Pullen T. 514 Richards v. Murphy, 185 v. Vanarsd.ile 408 Robinson v. Woelpper 179 8. Savings Institution, Case of 461 Sergeant, Ingersoll v. :?:'.? Sharp v. Thompson 1 :''.' Kirkham v. ::j:) Sim, Burr v. Sims, Henrv v. 187 Skerrejt v. liurd 246 Sletor v. Gram 106 Snyder, Ingham v., 116 Solomon v. Wilson 241 Spring Garden v. Northern Lib- erties 25 Stanley, Britton v. 267 T. Thomas, Fritz v. 66 Thompson, Sharp v. 1 39 Tilghman, Coxe v. 283 Tryon v. Miller 1 1 U. Union Canal Co. v. Young 410 Union Insurance Co., Prescott v. 399 V. Vanarsdale v. Richards 408 St. Mary's Church v. Miles 229 , Young, Union Canal Co. v. W. Walter v. Walter 292 Wentz v. Wentz 201 White v. Arndt 91 Wilmington Bank v. Almond 109 Wilson, Solomon v. 241 Winmier's Appeal 96 Woelpper, Robinson v. 179 Y. 410 CASES IN THE SUPREME COURT OF PENNSYLVANIA. EASTERN DISTRICT DECEMBER TERM, 1835. [PHILADELPHIA, DECEMBER 34, 1835.] COMMONWEALTH ex. rel. PRICE and ROBERTS against THE COMMISSIONERS OF THE COUNTY OF PHILA- DELPHIA. THE SAME ex. rel. CLYDE against THE SAME. MANDAMUS. Mandamus to the Commissioners of the County of Philadelphia, to draw orders on the County Treasurer refused, where it appeared by the return to a rule to show cause that there was no money in the County Treasury, applicable to the purpose. ON a previous day, Price, for himself and Hugh Roberts ; and Gr. L. Ashmead for Thomas Clyde, had obtained rules to show cause why a mandamus should not issue to the Commissioners of the County of Philadelphia, commanding them to draw orders on the County Treasurer for the payment of certain sums of money alleged to be due to the relators, under the following circum- stances. In consequence of the opening of certain streets in the City and County of Philadelphia, damages had been assessed pursuant to the Acts of Assembly, in favor of several persons whose pro- perty had been taken away for the purpose. The Court of Quar- ter Sessions confirmed the report, and ordered the amount VOL. i. 1 2 SUPREME COURT [Dec. Term, (Price t>. County Commissioners.) r*oi awarded in *the several cases to be paid by the County I J Treasurer. In the case of Roberts, it appeared by affi- davit, that application had been made to the County Commission- ers, for the necessary order on the Treasurer, about the 8th of April, and at several subsequent times. In the case of Clyde, the order of the Quarter Sessions was made on the llth of December, 1886 ; and application was made forthwith. The County Com- missioners declined compliance with the order of the Quarter Ses- sions, on the ground that there were no funds in the County Treasury applicable to this purpose. And now, on the return of the rule, Dallas for the County Commissioners, read their affidavit, setting forth in substance : That they had ascertained from the Treasurer of the County, that there did not exist at the time, and had not existed during the current year, adequate funds for the payment of the said dam- ages ; the moneys in the Treasury having been applied to the payment of claims of a prior date, and to the current expenses of the County. That the deficiency had arisen from circumstances beyond their control. Desirous to levy for the public exigencies a sufficient sum, at the highest rate authorized by law, to wit : " at the rate of one cent in every dollar of the adjusted valuation" of real and personal property, they submitted their exposition of the wants of the County to " The County Board" as they were bound to do, on the 20th of April, 1835, and asked their consent and approbation to the assessment of the County rates and levies. But the Board did not assent, but restricted the assessment to the rate of three-quarters of one cent on every dollar, making a dif- ference between the sum which they asked to be empowered to raise, and the sum which they were limited to, of $219,267, and causing an estimated deficiency for the current year of about $250,000. That they were restricted by the act of 10th April, 1834, entitled "An act for erecting the County Board," &c., from laying any tax or borrowing any money without the consent and approbation of the said County Board ; and by a proviso in the sixth section of the same act, no meeting of the said County Board could be held at any time during the session of the legis- lature. After setting forth particularly the state of the County funds, the return concluded thus : " The undersigned do not think it their duty, as public agents, to continue drawing orders upon a treasury which they know to be in effect empty. They have been obliged heretofore, by a strong sense of the necessity of particular cases to do so ; but in the exercise of the discretion with which on this point they deem themselves vested, they cannot continue the practice or extend it to a class of cases of mere personal hardship, without subjecting 1835.] OF PENNSYLVANIA. 3 1 (M'Carthy v. Dawson.) the interests confided to their supervision and care to great dan- gers, much discredit, and almost inextricable confusion." * G-. L. Ashmead and Price contended, that the County r*o-i Commissioners were bound to draw orders according to the L period and in the order of time, at which demand was made upon them. In the case of Price, demand was made before the meet- ing of the County Board. The County Commissioners have not done all that they might have done. Admitting that by the refusal of the County Board to sanction the proposed tax they were deprived of funds, it does not appear that they were unable to obtain their authority to borrow money. Our situation is one of great hardship. Our property has been taken away from us ; and we have no judgment which can be enforced under the act of 15th April, 1834, or under which we may be entitled to inter- est at a future time. They cited the act of the twenty-fifth March, 1835, (Purd. Dig. 802;) Act of tenth April, 1834, (Pamph. Laws, p. 266.) Dallas, contra, referred to the case of The Commonwealth v. The Commissioners of Lancaster County, (6 Bin. 5.) PER CURIAM. This rule must be discharged, and the man- damus denied. It appears by the affidavit of the Commissioners, that there is no money in the treasury, except that which is wanted to defray the ordinary and current expenses of the County. The writ of mandamus is not of course. It will be granted when a plain case of necessity is shown, and where, in the discretion of the Court, it appears to be advisable. In this case we should probably stop the wheels of the county govern- ment if the mandamus were allowed. Rule discharged. Cited by Counsel, 9 Harris, 18 ; 4 Casey, 111. Cited by the Court, 2 Wharton, 293. [*PHILADELPHIA, DECEMBER 28, 1835.] [*4] M'CARTHY against DAWSON, Executor of BAXTER. A testator having given the residue and remainder of his estate, real and personal, to J. B., "his heirs and assigns forever," charged with the payment of debts, funeral expenses, and certain small legacies, added the following proviso : "Provided, that in case the said J. B. doth not return to Philadelphia, from his present intended voyage to South Amer- ica, or in case he doth not return to Philadelphia within a reasonable 4 SUPREME COURT [Dec. Term, (IfCarthy r. Dawson.) time after my decease, but depart* this Itfe irithmit lawful issue, then, and in such cane or cases, all my said messuage, lot, and residuary estate, real and personal, intended for the said .1. B. shall go to, and I do lu-ivl>y give, devise, and K'queath the same to A. B., etc., their heirs and assigns," subject to the same charges : Held, that the proviso was to be taken to refer to a dying without issue on the contemplated voyage ; and J. B. having returned from the voyage in the life time of the testator, he took a fee simple in the real estate. Tins action was tried before KENNEDY, J., at a Court of Nisi Prius, held at Philadelphia, on the twenty-seventh day of Febru- ary, 1835, when a special verdict was found, stating in substance, the following facts : Mary Marshall, of the County of Philadelphia, widow, being seized in fee of a certain lot or piece of ground, with messuage thereon erected, situate on the west side of Delaware Second Street, between Shippen and South Streets, in the district of Southwark, in the said County, made her last will and testament in writing, dated the twenty -fourth of October, 1801, as fol- lows : " Be it remembered, that I, Mary Marshall, of the City of Philadelphia, widow, and relict of Joseph Marshall, late of the said city, bricklayer, deceased, being of sound mind and memory, do hereby make my last will and testament in manner following, that is to say : I will and bequeath all my beds, bedding, chairs, tables, and every other article of my household and kitchen fur- niture, also all my plate and all my wearing apparel unto my beloved niece, Rebecca Cox. Item. As for and concerning my dwelling house and lot, and all the residue and remainder of my estate, real and personal, whatsoever and wheresoever, not herein otherwise disposed of, I do give, devise and bequeath the same, subject to the provisions, limitations, and conditions hereinafter mentioned, unto my esteemed friend, James Baxter, of Philadel- phia, now about to go to South America, his heirs and assigns forever, charged and chargeable, nevertheless, with the payment of all my just debts and funeral expenses, and the costs of my tomb stone for my grave chargeable also with the payment of a legacy or fund of thirty dollars, which I give and bequeath to the church wardens and vestrymen of the Swedes Congregation i>e-i >n Wicaco, towards the purchase *of a bell for that church. ' And chargeable also with the payment of a legacy or fund of fifty-three dollars, and one-third of a dollar, which 1 give and bequeath for the schooling and education of Ann Baxter, daughter of the said James Baxter's brother. Provided always, and it is my mind and will, that in case the said James Baxter doth not return to Philadelphia from his present voyage to South America, or in case he doth not return to Philadelphia, within a 1835.] OF PENNSYLVANIA. 5 (M'Carthy v. Daw son.) reasonable length of time after my decease, but departs this life without lawful issue, then, and in such case or cases, all my said messuage, lot, and residuary estate, real and personal, intended for the said James Baxter, shall go to, and I do hereby give, de- vise, and bequeath the same unto my esteemed friend, the said Ann Baxter, and my nephews, Peter Resolve Cox, and Isaac Cox, their heirs and assigns, to be equally divided between them, share and share alike, as tenants in common, and not as joint tenants, subject, nevertheless, to the payment of my just debts and funeral expenses as aforesaid, and also, to the payment of the aforesaid two legacies of thirty dollars and of fifty-three dol- lars and one-third of a dollar ; and for the payment of such debts and legacies, I do in such case authorize and empower my execu- tors hereinafter named, and the survivor of them and the execu- tor of such survivor, to bargain and sell my messuage and lot, with the appurtenances, for the best price that can be gotten, and by proper deeds and assurances in the law, to grant and convey the same, with the appurtenances, unto the purchaser or purchas- ers, his, her, or their heirs and assigns forever." The testator died seized of the estate, without having revoked her said will, which was duly proved on the 12th day of Febru- ary, 1802. James Baxter, in the said will mentioned, returned to Philadelphia from the voyage to South America, spoken of in the will, before the death of the testator, and was resident in Philadelphia at the period of her death. The question was, what estate he took under the will. Holy and F. Hubbell, for the plaintiff, contended that he took a fee. They argued that by the true construction of the will, the estate in fee simple, which was undoubtedly given to James Baxter in the first part of the will, was to be divested only in the event of his dying while absent on the contemplated voyage, without leaving issue : and that the words, " but depart this life without lawful issue," were to be understood with reference to his absence abroad, and not as a distinct case. And James Bax- ter having returned home in the life time of the testator, the es- tate became absolute in him. They cited 6 Cruise's Dig. 193. C. Ingersoll, for the defendant, argued that the words " depart this life without lawful issue," were general in their application, and *not confined to the case of absence on the voyage r*a-\ contemplated, and consequently, that James Baxter had * only an estate in tail. He cited Irvine v. Dunwoody, (17 S. & R. 61) ; Caskey v. Brewer, (17 S. & R. 441) ; Baker v. Grerrish, (5 Rawle ) ; 1 Powel on Devises, 361, 363, 364, n., (ed. 1827.) 6 SUPREME COURT [Dec. Term, (M*Carthy . Dawson.) The opinion of the Court was delivered by GIBSON, C. J. The argument is, that however else the devise to- the first taker may have limited the estate, he could in no event have .had a fee simple, the provision for his death without issue having limited it as a fee tail by implication; and that there being a particular estate of freehold to support the limita- tion over as a remainder, it is not to be construed an executory devise. It is obvious, however, that a general failure of issue was not the contingency that was uppermost in the mind of the testatrix ; and that it was contemplated by her but in connection with a failure to return in a reasonable time from the voyage to South America. The devisee was a bachelor, about to proceed on a long sea-voyage, in which, should he perish, it was scarce possible that he could leave lawful issue ; and the contingency of his death, would therefore present to the testatrix the idea of a dying necessarily without issue. It was therefore, of a dying without issue on that voyage, of which she spoke. She viewed the contingency for which she was going to provide, but in two aspects of a return to Philadelphia in a reasonable time, or, as the only other alternative, death without issue abroad. "Pro- vided always, and it is my will and intention," are her words, " that in case the said James Baxter doth not return to Philadel- phia from his present intended voyage to South America, or in case he doth not return to Philadelphia in a reasonable time after my death, BUT depart this life without lawful issue ;" then over. To avoid the preceding conclusion, we are asked to put "or" in the place of " but," and thus make the dying without issue a dis- tinct and independent contingency. The word "or" has doubtless been construed "and ;" not, however, where it was not indispens- able to some plain point of intention ; and what object which the testatrix may be thought to have in view, is there to be answered by the mutation desired here ? She evidently thought, that Cap- tain Baxter would return without issue, or perish on his voyage without issue ; the requirement of his presence at home in a reasonable time after her death, being to let the estate go over on a reasonable presumption of his death. The leaving of issue abroad was a contingency not contemplated ; or if contemplated, the object was to bring him back to enjoy the estate at home, instead of suffering it to go, at perhaps an indefinite time, to his offspring by a stranger, for whom she felt no affection. That being accomplished, it is evident she meant no restricted gift. It I-**-! is of weight that the devise is in fee by express *words; and though the generality of such words may be restrained by implication, it never has been done but to effect some clear purpose, palpably in the testator's view. No such purpose is perceptible here, for the estate is given pretty much in the same 1835.] OF PENNSYLVANIA. 7 (Metts' Appeal.) words and with the same encumbrances, as it is given to the de- visees over, who were certainly intended to have a fee. On the face of the will, then, there is a manifest intent to give the estate absolutely if at all, and to limit a fee to the first taker, provided he returned to take possession of it in a reasonable time from the death. Judgment for the plaintiff. Cited by Counsel, 7 Watts & Sergeant, 97. [PHILADELPHIA, DECEMBER 28, 1835. ] METTS' APPEAL. The Orphans' Court has not jurisdiction of an adversary claim against the estate of a decedent, where the estate is solvent ; although the alleged creditors are children of the decedent. APPEAL from the Orphans' Court for the County of Philadel- phia, in the case of the settlement of the accounts of George Metts, Executor of the Will of Barbara Metts, deceased. Adam Metts died about the year 1797, intestate, seized of a dwelling-house and lot of ground, situate in the Northern Liber- ties, of the City of Philadelphia, and leaving a widow and several minor children. His widow, Barbara Metts, remained in possession, and made some addition to the building. In the year 1827, it became necessary to occupy a great part of the lot for the purpose of a public street ; and under the provision of the Act of Assembly, a jury was appointed by the Court of Quarter Sessions, who assessed the damages at 1400 dollars. On the return of the jury a commissioner was appointed to ascertain the liens upon the property, &c., who reported that the damages were payable to Barbara Metts. No exception having been made to this report, it was confirmed by the Quarter Sessions, and the money was paid accordingly. Barbara Metts died in 1830, hav- ing by her last will and testament bequeathed the sum of 30 dollars to each of her children, with the exception of her son, George Metts, to whom she gave all the residue of her estate, and Avhom she appointed executor. George Metts settled his accounts in 1831, in which he charged himself with the sum awarded for opening the streets, deducting a certain amount claimed by the ground landlord. *In the Orphans' Court, the accounts were referred to an r^o-i auditor, who after stating the circumstances concluded as L follows: 8 SUPREME COURT [Dec. Term, (Mette' Appeal.) " The auditor is clearly of opinion that the use and occupation of the house and lot for so many years by Barbara Metts, was a family arrangement, acquiesced in by her children for her conve- nience and comfort ; and that her enjoyment of the whole property was at least an equivalent for the improvements and repairs made, and the ground rent and taxes paid by her. That the children never lost the legal title to the property. That when their mother received the money in question, she was to be regarded as trustee for all interested ; that her executor, in whose hands the fund now is, is to be considered also as a trustee, and that (the question of the testatrix's interest in third part being now at an end) distribution is to be made accordingly." The report of the auditor having been confirmed by the Or- phans' Court, the Executor appealed to this Court. Arundel, for the appellant contended: 1 . That Ann Metts was entitled, in her character of occupant, to receive the damages awarded by the jury, to her proper and absolute use ; and, therefore, she was entitled to dispose of them by will or otherwise as she thought fit. 2. That the decree or judgment of the Court of Quarter Ses- sions awarding the damages to Ann Metts, was conclusive upon the question of her absolute right to it. On this side were cited Purdon's Digest, 726, (Act of 1802) ; Marsh v. Pier, (4 Rawle, 273) ; Kesaler v. Kessler, (2 Watts, 323). Campbell and Isaac Norris, for the appellees. This is an attempt by one of several children to get possession of an undue proportion of the common property. The widow, it is tnie, occupied the whole of the real estate in question, from the time of the death of her husband, until it was taken for the street ; but it was in pursuance of a family arrangement, and as guardian, or trustee for her minor children. As a mere occu- pant, she could not have been entitled to damages under the Act of 1802. [ROGERS, J. How could you enforce your claim in the Or- phan** Court?] We claimed as creditor* of Mrs. Metts' estate. r*Q"| [*Ror.ERS, J. But your claim was disputed ; and it is not easy to see that the Orphans' Court, or an auditor had any jurisdiction in such case.] It is a common practice here to refer all questions arising upon the accounts of an executor or administrator to an auditor, who hears and decides as well upon claims of creditors, as upon those of distributees, subject to the control of the Orphans' Court, who may direct an issue for the trial of disputed facts. 1835.] OF PENNSYLVANIA. 9 (Metts' Appeal.) [KENNEDY, J. There is no authority for the practice, except in the case of an insolvent estate, for which there is a special pro- vision made by the Act of 1794.] W. M. Meredith, in reply, was stopped by the court ; whose opinion Avas delivered by ROGERS, J. The account of the executor exhibits a balance in his hands of 1038 dollars 56 cents ; and the only question is, as to the distribution of this fund. And this would seem to pre- sent a case of but little difficulty, as there can be no doubt, that after debts and the necessary expenses of settling the estate are paid, the surplus must be paid as is directed in the testator's will. But the appellees say, and so the Orphans' Court has decreed, that they are entitled to the balance in the hands of the executor, because, the testatrix in her life time, received from the treasury of the County of Philadelphia, by the hands of her son and agent, George Metts, the sum of 1400 dollars, for damages in opening Juliana street, through property occupied by her. That at the time of her death, in September, 1830, this money was still in the hands of her son, George Metts, who was appointed her exe- cutor : that the property, for the injury to which these damages were receiv.ed, belonged equally to the ten children of Adam Metts, and that the money was received in trust for their benefit. Admitting the facts to be as stated, was it competent for the Or- phans' Court to make a decree distributing the assets equally among the children of Adam Metts ? And we are clearly of the opinion, it was not. If Barbara Metts received the money as is alleged, not in her own right solely, but as a trustee for her children, it was so much money had and received for their use, and this would make them creditors of their mother, for the amount of their respective sharest for which an action for money had and received would lie. Bu, if, as has been supposed, George Metts was a trustee for them, then the act of Assembly gives them a remedy, by a more sum- mary proceeding in the Court of Common Pleas. But in neither view of the case have the Orphans' Court authority to disregard the injunction of the will, and make a decree such as the present. *It must be recollected, that the estate is solvent, and r-^-j ^-, of course, is not embraced by the 14th section of the act *- of the 19th April, 1794, which relates to cases where there are not assets sufficient to pay bonds, specialties, and other debts. This section was intended for the security of executors and administrators, but we do not understand that in this case, the executor claims the benefit of this provision, or that auditors were appointed under that section. 10 SUPREME COURT [Dec. Term, (Try on t>. Miller.) But this docs not leave the appellees without an adequate remedy, as has been before intimated. The executor is respon- sible for the correct and proper administration of the estate, and if he thinks proper to prefer legacies to debts, it is a devastavit for which he is personally liable. It is all important to the ad- ministration of justice, that the jurisdiction of the respective courts should be kept separate and distinct ; but it is obvious, that if such a course of procedure should be permitted, it would interfere with the trial bv jury, to the benefits of which the executor, as well as the creditor, is entitled. We wish it to be understood, that we give no opinion on what may be considered the merits of the case, but shall leave these questions to be determined where they properly arise. Decree of the Orphans' Court distributing the balance among the ten children of Adam Metts reversed. The balance to be paid by the executor as is directed by the will, upon the legatees giving security, &c., according to law. The record remanded to the Orphans' Court, to carry this decree into execution. Cited by Counsel, 9 Watts, 875 ; 8 Watts & Sergeant, 403 ; 10 Barr, 144; 11 Harris, 462 ; 6 Casey, 80. Cited by the Court, 2 Ashmead, 522. To the same effect, 2 Wharton, 295 ; 6 Id. 403 ; 5 Watts, 50. This seems to be changed by later Acts of Assembly : see 5 Wharton, 44; 5 Harris, 422 ; 11 Id. 460 ; 12 Id. 288 ; 1 Casey, 215 ; 4 Id. 262 ; 6 P. F. Smith, 172. [*H] [*PHII.ADELPHIA, DECEMBER 28, 1835.] TRYON and Others against MILLER and Others. IN ERROR. 1. A plaintiff having declared in trover for a bond, the case was referred, under the act of 1810, to arbitrators, who made an award in favor of the plaintiff, from winch the defendant appealed : Held, that the Court below waa right in refusing the plaintiff leave to withdraw the original decla- ration, and substitute one alleging the conversion to have been of certain instrument* of writing not under seal. 2. It Mfmt, that such an amendment being the substitution of a different cause of action from that originally stated, is not within the act of 1806, and therefore it is discretionary with the Court to which it is offered to admit or reject it ; and their decision in relation to it is not subject to revision upon a writ of error. 8. A plaintiff in trover for certain instruments of writing having, while the cause was before arbitrators, filed with them an agreement to release any judgment in his favor, upon certain terms, which agreement was at- tached by the arbitrators to their report. It was held, that the plaintiff could not, upon the trial of the cause after an appeal, read the agreement to the jury. 1835.] OF PENNSYLVANIA. 11 (Tryon . Miller.) UPON a writ of error to the District Court for the City and County of Philadelphia, the case was as follows. To September term, 1834, an action on the case was brought by George Try on, Nathan Jones, John Alberger, Joseph B. Nor- bury, and Joseph Starne, against Daniel H. Miller, Lawrence Shuster, David Woelpper, and Jacob Frick, under the following circumstances : In the year 1822, Jacob G. Tryon was elected sheriff of the City and County of Philadelphia. The plaintiffs became his sureties in the recognizance to the Commonwealth in the sum of $60,000. The defendants, together with certain other friends of Mr. Tryon, were alleged to have entered into certain written stipulations to indemnify the plaintiffs for any loss by reason of their suretyship. The agreements of indemnity, however, were never delivered to the plaintiffs, but remained in the possession of the defendants, or one of them. Mr. Tryon died insolvent within a year after his appointment ; and the plaintiffs were com- pelled to pay certain sums for which he was in default, in pur- suance of the stipulations in the recognizance. On the sixteenth of October, 1824, a declaration was filed as follows : In the District Court for the City and County of Philadelphia, of the Term, of September, 1824, No. 182, Philadelphia City and County, 88.: Daniel H. Miller, Lawrence Shuster, Daniel Woelpper, and Jacob Frick, all late of the County aforesaid, yeomen, were at- tached to answer George Tryon, Nathan Jones, John Alberger, Joseph *Starne, and Joseph B. Norbury, of a plea of tres- r-^-. 0-1 pass on the case, &c. Whereupon the said George Tryon, L Nathan Jones, John Alberger, Joseph Starne, and Joseph B. Norbury, by William M. Meredith, their attorney, complain, for that whereas, the said George, Nathan, John, Joseph, and Joseph B. heretofore, to wit, on the first day of March, in the year of our Lord one thousand eight hundred and twenty-three, at the County of Philadelphia, to wit, at the City and County aforesaid, were lawfully possessed, as of their own property, of a certain writing obligatory, commonly called a bond, sealed with the seals of the said Daniel H. Miller, Lawrence Shuster, Daniel Woelpper, Jacob Frick and others, whereby the said Daniel H. Miller, Law- rence Shuster, David Woelpper, Jacob Frick and others, became bound to the said George Tryon, Nathan Jones, John Alberger, Joseph Starne, and Joseph B. Norbury, in a certain penal sum therein named, and then and still being in full force ; of great value, to wit, of the value of twenty thousand dollars, lawful money of the United States ; and being so possessed, they, the said George, Nathan, John, Joseph, and Joseph B., afterwards, 12 SUPREME COURT [Dec. Term, (Tryonu. Miller.) to wit, on the day and year last aforesaid, at the County of Phil- adelphia, to wit, at the City and County aforesaid, casually lost the said bond out of their possession, and the same afterwards, to wit, at the City and County aforesaid, on the day and year last aforesaid, at the County of Philadelphia, to wit, came to the pos- session of the said Daniel II. Lawrence, David and Jacob, by find- ing; yet the said Daniel II. Lawrence, David and Jacob, well knowing the said bond to be the property of the said George, Nathan, John, Joseph, and Joseph B., and of right to belong and appertain to them, but contriving and fraudulently intending to deceive and defraud the said George, Nathan, John, Joseph, and Joseph B., in this behalf, have not as yet delivered the said bond to the said George, Nathan, John, Joseph, and Joseph B., or to any or either of them, although often requested so to do, and have hitherto wholly refused so to do, and afterwards, to wit, on the day and year last aforesaid, at the County of Philadelphia, to wit, at the City and County aforesaid, converted and disposed of the said bond to their own use ; wherefore the said George, Nathan, John, Joseph, and Joseph B., say that they are injured and have sustained damage to the value of fifty thousand dollars, and therefore they bring their suit, &c. SAMSON LEVY, ) W. M. MEREDITH, f P ^ uer ' The cause was referred by the plaintiff according to the act of 1810; and an award was filed on the twenty-sixth of December, 1825, in favor of the plaintiff, against Daniel H. Miller, for the sum of $10,000; and as against the other defendants the arbitra- T*1S1 * ors * rc P or t c d, that the plaintiffs had no cause of action. ' On the same day the following paper was filed by the plaintiffs : It is hereby agreed by the plaintiffs, that if an award shall be made in their favor, the same, and the judgment thereon to be rendered, shall be released, upon payment by the defendants of all that the plaintiffs have paid and may hereafter be compelled to pay, by reason of their having been sureties for the late Jacob G. Tryon, sheriff of the County of Philadelphia, and that upon payment by the defendants of all sums of money, which the plaintiffs have paid and may hereafter be compelled to pay, the judgment in this case shall be released. (Signed) GEORGE TRYON, JOHN ALBERGER, NATHAN JONES, JOSEPH STARNE, JOSEPH B. NORBURY. December 22 J, 1826. 1835.] OF PENNSYLVANIA. 13 (Tryon 0. Miller.) Daniel H. Miller appealed from the award. On the fourth of November, 1826, on motion of his counsel, the Court granted a rule to the plaintiffs to show cause " why upon the payment of the costs and surrender up by him to the plaintiffs, without pre- judice to the rights of any person or persons, a certain paper writing, dated the day of October, 1822, purporting to be an agreement to indemnify the plaintiffs to the amount of certain sums set opposite to the names of the subscribers, and signed by George W. Try on, and seventeen others, and also a certain paper writing purporting to be an agreement to indemnify Nathan Jones, George Tryon, and William Law, dated the day of October, 1822, signed by various persons, most of whose names are cancelled, this suit should not be discontinued and proceed- ings stayed." After argument the Court discharged this rule on the eleventh December, 1826. On the next day the following entry appears: Dec. 12, 1826. A certain paper writing, dated the day of October, 1822, purporting to be an agreement to indemnify the plaintiff to the amount of certain sums set opposite to the sub- scribers' names, and signed by George W. Tryon and seventeen others, filed ; and also a certain paper writing purporting to be an agreement to indemnify Nathan Jones, George Tryon, and William Law, dated October, 1822, signed by various per- sons, most of whose names are cancelled, and also a notice signed by Thomas Sergeant and J. A. Mahany, Esq., defendant's attor- neys, dated Philadelphia, December 12th, 1826, directed to the plaintiffs or their attorneys, informing them of the filing of the above papers, &c. *On the twenty-fourth of March, 182T, on motion of the r^-j^-i plaintiff's counsel, a rule was granted to show cause why an ^ J. amended declaration therewith offered, should not be filed, and also, why the declaration already filed should not be struck. off. The de- claration thus proposed did not appear upon the record. It was agreed, however, in the argument, that it differed from the former declaration in respect to the instruments alleged to be in the pos- session of the defendants, stating them as agreements or stipula- tions and not as bonds. The District Court being divided in opin- ion upon the question, the rule was not granted. The case then went to trial upon the original declaration, when the plaintiff, to support the averments therein, offered in evidence the agreements filed by the defendants, which the Court refused to admit ; and under their direction the jury rendered a verdict for the defendants ; and the plaintiffs having removed the record to this Court assigned for error: 1. The refusal to allow the agreement above mentioned to be read in evidence. 14 SUPREME COURT [Dec. Term, (Tryon . MUler.) 2. The refusal to permit the proposed amendment of the decla- ration. The case was argued by CJiarles Ingersoll, for the plaintiff in error, who contended that the Court ought to have allowed the amendment to the declaration. He cited 2 Chitty, 835. Dallat, (with whom was Randall,} for the defendant in error, was stopped by the Court. The opinion of the Court was delivered by KENNEDY, J. Two errors have been assigned, First, that the District Court refused to permit the plaintiffs to read in evidence to the jury, on the trial of the cause, an offer made in writing and signed by them while the cause was pending before arbitrators, and afterwards filed in the prothonotary's office, with and attached to the award of the arbitrators ; whereby they agreed that if an award should be made in their favor, the same and the judgment thereon to be rendered, should be released upon payment by the defendants of all that the plaintiffs had paid and might thereafter be compelled to pay, by reason of their having been sureties for the late Jacob G. Tryon, sheriff of the County of Philadelphia, and that upon payment by the defendants of all sums of money, which the plaintiffs had paid and might thereafter be compelled to pay, the judgment in this case should be released ; second, that the court also refused to permit the plaintiffs to with- draw the declaration filed by them and to file a new one then exhibited to the court. In regard to the first error it is difficult, if not impossible, to r*ir-i perceive *even a colorable reason tending to show that ' the writing ought to have been received in evidence. It being the mere act of the plaintiffs, and not assented to by the defendant, it cannot be pretended that it ought to have been received as evidence for the purpose of sustaining the plaintiff's claim. So if it were offered with a view to persuade the.jury to give a verdict in favor of the plaintiffs, when the jury might otherwise have thought that their right was not clearly estab- lished by the evidence ; or in hopes that the jury might thereby be induced to assess damages in their favor beyond what the evidence given would warrant: under either of these views, it W1B clearly improper and inadmissible. It seems to me that there would have been as much, if not more propriety, in having offered the award of the arbitrators in evidence ; which if it had been received, after objection by the defendant, would have been error on the part of the court, according to the case of Shaeffer v. Kreitzer, 6 Binn. 430. I really can perceive no motive for 1835.] OF PENNSYLVANIA. 15 (Tryonc. Miller.) the plaintiffs having wished to give their paper in evidence, unless it were for the purpose of inducing the jury to give then; a more favorable verdict, than from the evidence given and the law on the subject they had a right to claim. But surely nothing can be more plain than that it was the duty of the jury to give their verdict according to the law and the evidence, and conse- quently it would have been error in the court to have misdi- rected the jury in point of law, or to have suffered that to have been given to them which might have misled them, either in regard to the law or the facts of the case. It is well observed by Mr. Justice Sergeant, who delivered the opinion of this Court in Bellas v. Lloyd, 2 Watts, 204, that " the permission to a party to file papers during a trial, affecting the event of the matters in issue, may lead to great irregularities and abuse. It may enable him to vary the position of the cause, by an act of his own, possessing no defined character, involving no legal re- sponsibility, and taking the opposite party by surprise. It tends to embarrass the regular course of trial. It is the duty of the court to discountenance a practice of this kind, and it is error for which the judgment will be reversed, if exception is taken to it at the time of being offered, or when sanctioned by the court." The first error, therefore, is not sustained. As to the second error, it is laid down as a general rule in 5 Bac. Abr., tit. Plea and Pleading, page 330, for which is cited Lil. Reg. 408, that the plaintiff after a plea pleaded, or after the end of the second term, shall not add a new count to his decla- ration, under pretence of amending it. The same rule is laid down also in Styles' .Register, tit. Declaration, page 206. So in Cope v. Marshall, Sayre Rep. 236, it was held to be contrary to a general rule of law, to permit an amendment which amounted to the adding of a new count, after the action had been com- menced two terms ; and was further held to be a general rule of law, " that an amendment *by which a new right of action r-^.-, n-i would be alleged, ought not to be permitted." And ac- L cording to the first of these rules the court, in Aubeer v. Barker, 1 Wils. 149, refused leave to amend the declaration, by adding two counts, after the term next after the term in which it had been delivered. Under these authorities the Supreme Court of New York in Sackett v. Thompson, 2 Johns. 206, refused to allow the plaintiff to amend his declaration by adding one or two new counts, after the action had been commenced for several terms and had been noticed for trial several terms. These rules, how- ever, being only general rules, are not without their exceptions ; and accordingly, in the case of Bearcroft v. The Hundreds of Burrhouse and Stone, 3 Lev. 347, after issue joined and the trial thereof ready at bar, but adjourned for some reason not con- 16 SUPREME COURT [Dec. Ten*> (Tryon . Miller.) ncctcd with the amendment, to a subsequent day, the court in the interim 4>ermitted the plaintiff to amend his declaration by de- claring for an assault and robbery, for which the action was brought, committed on his servants, and stating on oath made by them, which through mistake had been alleged to have been committed on himself. The court seem to have allowed the amendment because the statute of limitations would have been a bar to the plaintiff's recovery in a new or second action. And for a like reason, an amendment was permitted in the 1 Dutchess of Marlborough v. Wigmore, Fitz. Rep. 193, but still not so as to change the nature of the action. Now, in the case before us, the action had not only been com- menced, and the declaration filed two years, and more than nine terms before the plaintiffs asked leave to file a new declaration and to withdraw the old, but they, after filing their declaration, had by a rule entered at their instance for that purpose, taken the cause out of court and tried it before arbitrators, who made an award in their favor against the defendant. The latter, after paying all the costs which had accrued upon the action, as he was bound to do, in order to obtain an appeal from the award, brought the cause back by appeal into court, where issue was joined up- wards of a year before the application was made to amend ; and although the statute of limitations would have barred any new action that the plaintiffs could have brought for the cause which they wished to have introduced upon the record, by filing a new declaration at the time of their application, and it may therefore be said they came within the exception established in the cases already mentioned ; yet, it is conceived that the plaintiffs by filing their declaration, which contained a good cause of action set forth in perfect form, and then referring that cause so stated to the decision of arbitrators, who made an award in their favor, put it out of the power of the court to permit them to substitute a new and different cause of action, to be tried in court upon the appeal, from that decided on by the arbitrators. It is manifest r,M--i t ne court could not have *granted the prayer of the plain- ' tiffs in this respect, without doing injustice to the de- fendant by depriving him of his right to have the costs, which he paid on taking his appeal, returned to him in case he succeeded in court on the trial of the same cause of action which had been decided against him by the arbitrators. The cause of action set forth in the plaintiffs' declaration, was the conversion by the de- fendant of certain bonds or writings obligatory, belonging to them, for the payment of money ; but the new declaration, which they asked leave to file in place of the old, was for the conver- sion of certain instruments of writing by the defendant, not under seal, containing the engagements of certain persons, whose 1835.] OF PENNSYLVANIA. 17 (Tryon v. Miller.) names were thereto subscribed, to indemnify some of the plain- tiffs to a certain extent, for having become the sureties of Jacob G. Tryon, as sheriff of Philadelphia county. That these causes of action are totally different from each other, is too obvious to admit of a question or doubt ; and we must presume that the cause of action set forth in the declaration was the one tried and decided by the arbitrators ; because legally they could not inves- tigate and decide any other. To have granted, then, the request of the plaintiffs, would in effect have enabled them to avoid a compliance with the condition upon which they received from and compelled the defendant to pay all the costs that accrued upon the cause of action set forth in their declaration ; which was, that they should repay the same to the defendant if he succeeded upon his appeal ; because the plaintiffs, finding, after the appeal taken by the defendant, that they could not sustain the cause of action set forth in their declaration and tried by the arbitrators against him, wished to abandon it altogether and to substitute another, in which they probably thought they could succeed ; and thus not only mulct the defendant in the costs of a trial of a new cause of action, but avoid returning to him the costs which he was compelled to pay on the award of the arbitrators, for a cause of action which the plaintiffs were unable afterwards to sustain upon a trial in court. In short, the result of the trial in court, which has established the right of the defendant to have these costs repaid to him, shows most clearly the injustice that might have been done him had the court granted the amendment, on the terms asked for by the plaintiff. It was upon this ground that the District Court of the City and County of Philadelphia, in the case of Howard v. McKeown^ 2 Browne's Rep. 159, very pro- perly refused to allow the plaintiff to add a new and substantive count to his declaration. But even taking it that there had been no insuperable objec- tion to the count, and allowing the amendment, I am still inclined to think that their refusal to do so would not have been the sub- ject of revision and correction in this court. The amendment asked for, was not one merely of form, but of substance ; it was to take place on * the record a new and different cause of ^^ -. action from that which the plaintiffs had stated with suf- "- ficient legal accuracy, and filed two years previously, immediately after the return of their writ. Now, I apprehend that such an amendment can only be claimed according to the principles of the common law, which leaves the matter altogether within the dis- cretion of the court applied to for that purpose, either to allow or disallow it, as may be deemed necessary, in order to advance the cause of justice. It is only statutory amendments which are de- mandable of right and inquirable into here. Proper v. Luce, VOL. I. 2 18 SUPREME COURT \_Dec. Term, (Reigart t. Ehler.) 3 P. & W. 66. If the amendment in question then be not authorized by statute, as I conceive most clearly that it is not, the decision of the District Court in regard to it cannot be reached here. The judgment is affirmed. Cited by Counsel, 2 Wharton, 130, 158 ; 1 Watts & Sergeant, 272 ; 4 Id. 142, 552 ; 5 Barr, 114 ; 6 Id. 252 ; 7 Id. 127 ; 2 Jones, 245 ; 5 Harris, 177 ; 8 Id. 18 : 13 Id. 326. Cited by the Court, pout 290 ; 2 Barr, 447 : 7 Id. 435 ; 11 Wright, 200. See also, 5 Watts & Sergeant, 35 ; 1 Casey, 409 ; 8 Wright, 456 ; 9 Id. 404. [PHILADELPHIA, JANTJAKY 4, 1836.] REIGART v EHLER. IN ERROR. One bequeathed a certain sum of money to his granddaughter A., as her ab- solute property, and declared that it was not to be for the benefit of her husband or father, &c., and he appointed his son B. executor of his will. In 1829, B., by indenture, conveyed to C. (the father of A.) a certain house and lot, htibendum, to C., his heirs and assigns, in trust, neverthe- less, for the sole use, benefit and behoof of A. and her heirs. It was alleged that this conveyance was made in satisfaction of the legacy ; but A. was not a party to it. In 1830, by indenture between B. of the first part, and A. and J. S. her husband of the second part, and D. of the third part, reciting the previous conveyance, and that it was made with- out the privity or consent of J. 8. or A. his wife, B., in consideration of the said legacy, conveyed the said premises to D., in trust for the use of J. 8. and A. his wife, &c. In assumpsit for the use and occupation of the premises, brought by C. against a tenant thereof, it was held, that the deed of 1829, with its recitals, was admissible in evidence against the plaintiff, and that the deed of 1829 being invalidated and aiuuiUed by that of 1830, the plaintiff was not entitled to recover. Tins was a writ of error to the District Court for the City and County of Philadelphia. In that court, Philip Reigart, trustee of Elizabeth L. Steven- son, brought an action of asfumpsit against John Ehler, for the use tod occupation of a house in the city of Lancaster. At the trial, the action was marked to the use of the said Elizabeth L. Stevenson. A verdict and judgment having been rendered for r*191 ^ e Defendant in * the court below, the case came before ' this court, upon exceptions taken to evidence, and to the charge of the court. The material facts were as follows: 1835.] OF PENNSYLVANIA. 19 (Reigart 0. Ehler.) Elizabeth Stevenson, formerly Elizabeth Reigart, was the wife of Josias Stevenson, junior, and one of the granddaughters of Dr. Albert Dufresne, of the City of Lancaster, deceased. By his last will, dated the 8th of December, 1820, and proved the 13th of August, 1823, Dr. Dufresne bequeathed to his two grand daughters, Elizabeth Reigart and Maria Reigart, a legacy of nine thousand dollars each, as their absolute property and not either to their respective husbands, or to their fathers, or their step brothers or step sisters. In case they died without having chil- dren, and if either of them died without leaving any child or children, the whole was to go to the survivor ; but if both died without leaving any child or children, then to the testator's son. He then directed the. money to be placed out at interest, and equally divided on their attaining twenty-one, or at the time of their marriage, in case of marriage after attaining the said age. Another clause of the will provided, that if either of them died under twenty-one, unmarried, and without having any child or children, the whole should go to the survivor as her absolute property : but if both died under twenty-one, unmarried, and without having any child or children, then he bequeathed the whole to his son. After bequeathing to them in the same manner one-half of the proceeds of his effects in Europe, he devised the residue of his personal, and his real estate, charged with the two legacies above mentioned, to his son, Samuel Dufresne, and ap- pointed him and two others executors. On the 22d of July, 1829, an indenture was executed between Samuel Dufresne of the one part, and Philip Reigart of the other part, by which Samuel Dufresne, in consideration of nine thousand dollars in hand, paid by Elizabeth L. Stevenson, and of four dollars paid by P. Reigart, conveyed the premises for the rent of which this suit was brought, and other real estate in Lancaster, to Philip Reigart, his heirs* and assigns, "to have and to hold to the said Philip Reigart, his heirs and assigns, in trust, nevertheless, for the sole use, benefit and behoof of the said Elizabeth L. Steven- son, and her heirs." This deed was acknowledged by Samuel Dufresne, and recorded the same day. It was further stated on the trial by the plaintiff, who produced this deed, that it was in payment and satisfaction, pro tanto, of the legacy of nine thous- and dollars, and was considered so far a compliance with the will. The plaintiff then called a witness who testified, that the defend- ant lived on the property first described in the deed : that the witness lived near him in one of the other buildings mentioned in the deed, from 1825 or 1826, until the first of January, 1832. That the defendant resided on the property from the first of April, 1830, and was still in it. He was to pay two hundred and eighty dollars per *annum, in quarterly payments. I-^QA-I On his cross examination, he stated that the defendant L - 1 J 20 SUPREME COURT (Dec. Term, (Reigart . Ehler.) paid all his rent to George B. Porter, Esq., to the first of April, 1832. That the witness paid rent to George B. Porter, up to the same date. He did not know of any written lease, nor did he know of whom defendant rented. Being re-examined he testified lie paid his rent to Mrs. Stevenson. She and Mr. Stoe- ver called on him and he paid the rent to them. He got an in- demnity from Mr. Stoever. Josiah Stevenson was dead ; he heard of his death in February, 1832. He did not know of defendant paying all his rent to Mr. Porter. He only knew that in March, 1832, he paid seventy dollars in full to April, 1832. He saw him pay it, and saw Porter give him a receipt. The defendant then offered in evidence, an indenture dated the 28th of September, 1830, between Samuel Dufresne of the first part, Josias Stevenson, Jr. and Elizabeth L. of the second part, and George B. Porter of the third part. To this the plaintiff ob- jected, contending that the deed was not evidence, nor was the recital of certain facts therein stated admissible. But the court admitted it ; and exception was taken. This deed recited the bequest to the granddaughters, with the limitation over to the survivor, and the death of Maria, in her minority and without issue, whereby the whole became vested in Elizabeth L. Stevenson, and became payable to Josias Stevenson, Jr. on the arrival of Elizabeth at twenty-one. That since the said Elizabeth attained twenty-one, a release had been executed by Josias and Elizabeth for the legacies, which was forwarded to Samuel Dufresne, with intent to be delivered to the said Samuel and others, executors, on payment of the legacies, or when a proper arrangement for the same should be made ; that Samuel Dufresne and Philip Reigart, on the representations of Philip Reigart, that he was fully authorized by Josias Stevenson and wife, undertook to appropriate and apply certain real estate (the premises referred to in this case,) owned by Samuel Dufresne, at the price of nine thousand dollars, in part payment of the lega- cies, which it is now ascertained was without the knowledge, con- sent, or approbation of J. S. and wife, or either of them ; and that Dufresne executed and Reigart took upon himself to accept the deed of the twenty-second of July, 1829 which deed of con- veyance was null and void by reason of the same having been executed, and the arrangement preparatory thereto made, with- out the consent, knowledge, or approbation of the said Josias Stevenson and wife, or either of them. It then conveyed the promises in consideration of nine thousand dollars theretofore paid and allowed to him by Josias Stevenson and wife, in the settlement and payment of the legacies, and one dollar paid to Samuel Dufresne, to George B. Porter, his heirs and assigns, in trust for the only use, benefit and behoof of the said Josias 1835.] OF PENNSYLVANIA. 20 (Reigart v. Ehler.) Stevenson, Jr. and Elizabeth L. his wife, during their joint lives, and at and after the death of either of them, *then in r^-j-i trust to and for the use, benefit, and behoof of the sur- "- vivor of the said Josias and Elizabeth L. his wife, and the heirs and assigns of auch survivor forever that is to say, in case the said Josias Stevenson, Jr., should survive his wife, then in trust and for the only proper use, benefit, and behoof of the said Josias Stevenson, Jr., his heirs and assigns forever; and in case the said Elizabeth L. should survive her husband, the said Josias Stevenson, Jr., then in trust to, and for the only proper use, benefit, and behoof of the said Elizabeth L., her heirs and as- signs forever; and upon this further trust and confidence, that at the desire and request, and with the consent and approbation of the said Josias Stevenson, Jr., and wife, at any time or times thereafter during their joint lives, the said trustee and his succes- sor should and might sell and dispose of the premises, or any part thereof, to the best advantage, and with like consent and approba- tion invest the proceeds in real estate or stocks, to be conveyed and settled in the same manner. The deed was acknowledged the same day, and recorded on the tenth of February, 1831. The Judge in charging the jury, said, " It seems, and so the plaintiff's counsel opened his case, and so the truth warranted him in doing, that one of the executors of Albert Dufresne's will (though two of them had undertaken the office of executor), made the deed of 22d July, 1829, conveying with other eal estate, the premises, for the use and occupation of which this suit was brought, in payment and satisfaction of 9000 dollars, of the 18,000 dollars bequeathed to Elizabeth L. Steven- son, who survived her sister Maria. Whether Mrs. Stevenson would,' by consenting to this deed, have been concluded by it, it is unnecessary for us to consider. It must certainly, however, appear before effect can be given to it, that Samuel Dufresne, the grantor, had authority to make it, and that Philip Reigart, the grantee, had authority to receive it as trustee of his daughter, Mrs. Stevenson. It is clear that the will did not of itself authorize Samuel Dufresne to execute such a deed. And it is equally clear, that Philip Reigart had no au- thority to bind his daughter to such an arrangement without her consent. No express authority to the father is suggested; and the doctrine that an acceptance is to be presumed where the deed is for the benefit of the party, is wholly inapplicable. As soon as Mrs. Stevenson heard of the transaction, she put her hand to the writing, dated 28th September, 1830, disclaiming the deed of 22d July, 1829, denying the authority of her father, and declar- ing it a nullity. In point of law, then, I am decidedly of opinion, that for all the purposes of this suit, the deed of 22d July, 1829, was void and of no effect. 21 SUPREME COURT (.Dec. Term, ( Reigart . Ehler.) The instrument of 28th September, 1830, related to matters besides that which I have mentioned. How far it might, under r*ooi certain ""circumstances, have been questioned as to any of L J those matters, it is not necessary now to decide, but as her declaration on this point, it is sufficient. If this were the whole of the case, and it is nearly so, I should say the plaintiff could not recover. The authority to bring this suit resting only on that deed, must be pronounced insufficient, when the deed itself is ascertained to be void. Another point, however, is made by the plaintiff's counsel. He contends, that if Mr. Reigart, under the belief that he had the right to let the premises to Mr. Ehler, actually did so, Mr. Ehler cannot dispute the right to recover the rent. Now, there is no direct proof whatever on this subject, and Mr. Ehler denies that he ever paid him any rent, or held under him, or recognized him as landlord. So far, then, the position fails. But the plaintiff's counsel again contends, that as Mr. Ehler took the house on the 1st of April, 1830, and the instrument denying Mr. Reigart's authority was not made till September 28th, 1830, it must be presumed that Mr. Ehler had taken from Mr. Reigart, and he must pay rent, at least up to the 28th September, 1830. The law, in the absence of all other proof than what we have had, will raise no such presumption; and even if it were as argued, Mr. Reigart was acting for Mrs. Stevenson, who, it is agreed on all hands, is the real party in interest. Now, she was at liberty to deny her father's authority, past, present and future, in the matter, and having done so, and made her own arrange- ments as to the rents, the father could not maintain this suit on behalf of the daughter, nor could she use her father's name in it, in opposition to her own renunciation and disclaimer." In this court the plaintiff assigned for error. 1. The admission of the deed of 28th September, 1830. 2. The admission of the recital, as evidence of the facts stated in the deed. 3. The charge of the court throughout. 4. The charge of the court in the following particulars, viz.: 1. Charging that the deed of 22d July, 1829, was .void. 2. Charging that the deed of 28th September, 1830, was good. 3. Charging that there was no presumption from any evi- dence that Ehler had assented to his tenancy under the plaintiff. 4. Charging and considering as testimony part of the opening of the plaintiff's counsel, and not the whole of it. 6. In taking all the facts from the jury, and charging them positively to find for the defendant. 1835.] OF PENNSYLVANIA. 23 (Reigart v. Ehler.) *Mr. Phillips for the plaintiff in error, argued in support r^oon of these exceptions. He cited 6 Binn. 45, 427 ; 2 Binn. 468. l Mr. O. Ingersoll (with whom was Mr. Perkins) for the plaintiff in error, was stopped by the court. The opinion of the court was delivered by SERGEANT, J. The first question arising on the bill of excep- tions to the evidence is, whether the deed of the 28th of September, 1830, and its recitals, were admissible in evidence. It was offered by the defendant, to show that Mrs. Stevenson, for whose use the conveyance of the 22d July, 1829, was taken by her father, had, on being apprised of its existence, dissented from it, declared it to be null and void, and in conjunction with her husband, settled the property in a different manner. Had Mrs. Stevenson been a third person, wholly unconnected with this suit, the deed of 1830 would have been evidence for this purpose. It was her solemn, deliberate act, under her hand and seal, and acknowledged before a magistrate, and was the highest evidence, short of a record, of her dissent from the former deed, on which this suit was founded. But in addition to this, Mrs. Stevenson was a party to the present suit. It was marked to her use on the day of the trial, and she was entitled to the whole beneficial interest in the rent claimed, even supposing that the deed of 22d July, 1829, con- veyed to her no more than an equitable interest. That deed was to her father, his heirs and assigns, to have and to hold to him, his heirs and assigns, in trust for the sole use, benefit, and behoof of Mrs. Stevenson, and her heirs. In an ordinary case, such a deed would not create a trust in her, but a use executed by the statute, (1 Prest. Estates, 191,) and would, therefore, on its face, have passed to her the whole legal estate in the premises. So that she would be the party legally as well as beneficially interested in this suit; and any act or declaration or recital of hers would be evidence against her. The only ground on which it can be contended that no more than a trust passed to her, is that it is conveyed for her " sole use, benefit, and behoof," which means for her separate estate; and in that case, a trust being necessary to support her separate interest, such construction might be given to it. On the construction of similar words, some nice distinctions have been made by the English Courts, (Clancy on Married Women, 267,) and the decisions in Pennsylvania are collected and examined in the opinion of this court delivered by Mr. Justice Kennedy, in the case of Evans v. Knorr, (4 Rawle, 66.) It is not necessary, nor do I mean to express any opinion on this point, because, if Mrs. Stevenson had the equitable interest in the demand in this suit, her declarations and recitals 23 SUPREME COURT [Dec. Term, (Rcigart . Ehler.) respecting her interest in the matter in controversy, would be evidence for the defendant; and the recitals in question, being r*94.1 conta ^ nc ^ m an indenture, are to *be considered as the L J words of all who are parties to it. I am therefore of opinion, there was no error in admitting in evidence the deed of 28th September, 1830, and its recitals. The next question is, whether the court were right in charging the jury that the deed of 22d July, 1829, was void, and the deed of 28th September, 1830, was good. I do not perceive on what ground it can be pretended, that Mrs. Stevenson can again set up the first deed, and recover upon it, after her solemn declara- tion in the last deed, that the former was executed without the knowledge, consent, or approbation of herself and husband, that it was null and void, and after having conveyed the same property to another trustee, and settled it to other uses and purposes, and when that settlement has been carried into execution by the trustee's demanding and recovering the rents from the tenants under it, for the benefit of her and her husband. She had the undoubted right and power, if the first deed was made without her knowledge and consent, to annul it at the first opportunity ; and on availing herself of this power, and exercising it by a deliberate act, the deed was absolutely null and void ab initio. It was not merely voidable so as to be good for the intervening time: it had no validity from the beginning, the assent of the ostensible parties to it being wanting. The property never passed by it for any purpose whatever; and the settlement of the estate by deed of 28th September, 1830, was made on the ground, that Mrs. Stevenson remained free and untrammelled, and at liberty to settle the estate as she pleased. Having done so, it is clear, that the deed of 29th July, 1829, never had any legal existence, and that the deed of 1830, was valid and bind- ing. If so, Mr. Porter, the trustee under the deed of 1830, was alone empowered to receive the rents ; and though the evidence is not very clear, there is reason to believe, that he, or Mrs. Stevenson, did receive them. Another exception to the charge is, that the court below stated that there was no presumption from any evidence, that Ehler, the defendant, had assented to the tenancy under the plaintiff. The only facts that could be supposed to justify such a presump- tion, are the evidence of a witness for the plaintiff, that the de- fendant had occupied one of the houses from the 1st of April, 1830 : and that the witness had occupied another of the houses and paid the rent to Mrs. Stevenson. But there was no evidence under whom Ehler rented or held the premises. He paid some, if not all his rent, to Mr. Porter, the trustee under the deed of 1830: and the jury must have been altogether at a loss to deter- 1835.] OF PENNSYLVANIA. 24 (Spring Garden v. The Northern Liberties.) mine under whom he held. In order to estop a person from denying the title of one claiming rent as his landlord, the allega- tion that he held under him as tenant ought to be clearly and positively established. It ought not to rest on conjecture. If Ehler really rented from the plaintiff, or acknowledged his title, the fact is susceptible of proof, and the plaintiff was * bound r^oc-i to adduce such proof before he could avail himself of the L rule of law that the tenant shall not deny his landlord's title. No such proof was given, nor any evidence from which the jury could be justified in presuming it. The other errors assigned are without foundation. Judgment affirmed. [PHILADELPHIA, JAITOARY 5, 1836.] THE COMMISSIONERS OF THE DISTRICT OF SPRING GARDEN and Others against THE COMMISSIONERS OF THE INCORPORATED DISTRICT OF THE NORTHERN LIBERTIES. The public wharf or landing place, called ' ' The Hay-scales Landing ' ' in the Northern Liberties, of the city of Philadelphia, and the public wharf or landing place on the south of and adjoining Callowhill street in the same district, were, by the act of the 16th of March, 1819, vested in the board of commissioners of the incorporated district of the Northern Liberties, in trust for the use of the public generally ; and neither the dis- trict of Spring Garden, nor the township of Penn, nor the unincorpor- ated part of the Northern Liberties, has any right to any part of the value or income of those wharves or landing places or either of them. THIS case came before the court in pursuance of an act of the Legislature passed on the 12th day of April, 1828, (Pamphlet Laws, 356 ;) reciting that by an act passed on the 16th of April, 1819, certain wharves and landing places in the incorporated dis- trict of the Northern Liberties, were vested in the commissioners thereof, and that it had been represented to the Legislature that the control and benefit of the said wharves, &c., ought not to be exclusively in the said commissioners, and therefore providing that it should be lawful for the commissioners and inhabitants of the Kensington District of the Northern Liberties, the commis- sioners of the district of Spring Garden, and the supervisors of the public roads and highways in the unincorporated townships of the Northern Liberties and Penn, to apply by petition to the Supreme Court of Pennsylvania, for the Eastern District, pray- ing the court to inquire into the merits or claims of the districts 25 SUPREME COURT [Dec. Term, (Spring Garden . The Northern Liberties.) and townships aforesaid to any part or portion of the value or income of the said wharves and landing places, and to make such order in the premises as justice and equity may require. The act then directed the method of proceeding to be pursued, and the relief to be given by the Supreme Court, if they should consider the claim of the petitioners well founded. F*2fi1 * ^ an ac *" P 8 ^ 6 ^ on tne 6th day of April, 1833, (Pam- J phlet Laws, 188,) the Supreme Court was authorized to take cognizance of the case on the application of either of the said districts or townships. The claim of the several districts and townships to participate in the income and benefits of these wharves, arose from an act passed on the 20th of February, 1768, entitled, " An Act for raising by way of lottery, the sum of 2,000 pounds, for purchas- ing a public landing in the Northern Liberties, and paving the streets of the City of Philadelphia," the preamble of which was as follows : " Whereas, it has been represented to the Assembly of this province, by petition from sundry inhabitants of the city of Phila- delphia and Liberties thereto adjoining, that the few public land- ings at the north end of said city and in the said Liberties thereof, are scarcely sufficient for the accommodation of its present inhabitants and the king's barracks. And whereas, it hath been also represented from the commissioners for pitching and paving the streets, lanes, and alleys of the city of Philadelphia, that the moneys granted or lent for pitching, paving and keeping clean the said streets, &c., for some time past have all been expended ; that the annual taxes on the inhabitants amounted to no more than scarcely sufficient to pay scavengers, and make the necessary re- pairs in the pavements, and that a considerable part of the said city remains still unpaved to the great inconvenience as well of travellers as of the inhabitants of the said city." The act then proceeded to direct the method of raising money by a lottery, and directed the appropriation thereof as follows : " And be it further enacted by the authority aforesaid, that after the payment of the sums due to the fortunate adventurers in the said lottery, and defraying the costs and expenses attending the same, the neat sum of money remaining in the hands of the treasurer aforesaid, shall be applied in manner following, that is to say, two thousand pounds thereof for, and towards purchasing a landing in the Northern Liberties nearly opposite the barracks, and improving the same with the landing at the end of Callowhill street, as hereinafter is directed, and the remainder to be paid to the city commissioners, for pitching and paving the streets, lanes, and alleys pf the city of Philadelphia, or to their treasurer, het better to enable them so to pitch, pave, and keep clean the streets, lanes and alleys aforesaid. 1835.] OF PENNSYLVANIA. 26 (Spring Garden v. the Northern Liberties.) " And be it further enacted by the authority aforesaid, that the commissioners of the county of Philadelphia, in trust for the public, by and with the consent and approbation of the justices of the peace of the said county, in their court of Quarter Ses- sions, shall *and they are hereby required and enjoined, r*o7n to buy a landing nearly opposite the said barracks, and receive the deeds thereof in trust for the public, and farther, to build or cause to be built thereon, a good wharf, and a pier for the use of the public. And the said county commissioners for the time being, or a majority of them, with the approbation of any three justices of the peace for said county, are hereby en- joined and required for ever hereafter, to have the care, direction, and management of the said landing, in letting the same out to any person or persons for the purposes of repairing and improving the same from time to time, for ever hereafter as the said com- missioners or justices or a majority of them for the time being, may judge most for the public good. " And whereas, the honorable the proprietaries of the province of Pennsylvania, have continued Callowhill street in the Northern Liberties aforesaid, into the river Delaware ; and as a public land- ing place at the end of the same street, may hereafter prove very advantageous and beneficial to the public. Be it therefore further enacted by the authority aforesaid, That the said county com- missioners, or a majority of them, with the consent and appro- bation of any three justices of the peace of the county aforesaid, shall for ever hereafter have the same power and authority for the improving and letting the same landing place at the end of Callowhill street aforesaid, for the uses and purposes aforesaid, as to them are hereby given and granted with respect to the land- ing place nearly opposite to the said barracks, hereby intended to be purchased." At the time of the passage of this act, the " township of the Northern Liberties " comprehended within its geographical limits, the territory lying between the rivers Delaware and Schuylkill north of the city of Philadelphia, extending northward to the present northern boundary of the townships, and included the present incorporated district of the Northern Liberties, the incor- porated district of Spring Garden, the incorporated district of Kensington, and the unincorporated townships of the Northern Liberties and Penn. Under the authority of the acts of 1828 and 1833, the com- missioners of the district of Spring Garden, and the supervisors of the public roads and highways in the unincorporated townships of the Northern Liberties and Penn, presented their petition to this court at December Term, 1833, setting forth spme of the provisions of the acts of 1768 and 1828, and praying that a cita- 27 SUPREME COURT [Dec. Term, (Spring Garden e. The Northern Liberties.) tion might be issued to the commissioners of the incorporated dis- trict of the Northern Liberties, and to the commissioners and inhabitants of the Kensington district of the Northern Liberties, requiring them to appear and show cause why the court should not make such order in the premises as justice and equity should require, &c. On the 16th December, 1833, an answer was filed on the part r*. The Northern Liberties.) extensive powers conferred upon the commissioners, being, as your respondents are advised, very unusual, if not unprecedented. Your respondents do not claim to be so highly favoured as either of the districts which have been mentioned. In regard to the public landings mentioned in the petition, they are legally and equitably, absolutely vested in your respondents, no otherwise in trust for the public than as all the estates of like nature, which your respondents or any similar corporation holds, are in trust for the public your respondents being a public body, created and existing solely for managing the estates held for the inhabitants of the incorporated district and the administration and discharge of the public trusts, which are by law confided to them. In regard to the surplus income of the said landings, the legislature r*'441 nas Directed y ur respondents *to invest the same from ' time to time, at their discretion, in the purchase of other landings within certain bounds. Your respondents have faithfully obeyed and intend to perse- vere in obeying this injunction, and are always ready and willing to render an account of their proceedings in this behalf to the public authorities of the commonwealth, who alone are entitled to demand it. Your respondents do humbly submit that they are in no way bound, nor can be required to render an account to the now peti- tioning townships and districts, or any of them. The inhabitants residing in the said townships and districts, are in the enjoyment, for their own benefit and emolument, of all the public landings within their respective limits. Your respondents do earnestly and respectfully deny that the inhabitants of said townships and districts are in law, justice, or equity entitled to take in effect the fund of 1768, with its accu- mulation, now actually vested by law in your respondents, aad divide the same among their respective boards of commissioners and supervisors of roads, to be expended for any purposes which the said commissioners and supervisors respectively may think proper, thus without any warrant or colour of right for so doing, totally diverting the said fund from the purposes for which it was originally raised from the people of this commonwealth, and violating the sacred and chartered rights of your respondents. And until some better reason shall be assigned therefore, than the fact that your respondents represent a district which is of email territorial extent in comparison with the aggregate bulk of the townships and districts here arrayed against them your respondents must beg leave humbly to continue to deny that the said townships and districts are in law, justice, or equity, entitled to demand that the public landings in question shall be appraised, and that your respondents, to whom they do now by law actually 1835.] OF PENNSYLVANIA. 34 (Spring Garden ID. The Northern Liberties.) and confessedly belong, shall be compelled to purchase them over again from those to whom they never did belong, and who never had any right or claim in or to them, and this too, while all other public landings, so far as is known, in the commonwealth, situated within the bonds of any corporation, and especially of the districts aforesaid, have been fully vested by the legislature in such corporations, on more favourable terms than those which have been annexed to the grant of the landings in question to your respondents. Your respondents observe many allegations in the said petition which are entirely ' unfounded, but which they do not deem it necessary for them at this time to notice particularly, but beg that they may be considered as expressly denying every state- ment in the said petition, which they have not in this answer ad- mitted to be true. Wherefore your respondents humbly pray to be hence dis- missed, *with their reasonable costs and charges in this r*qr-i behalf most wrongTully sustained. WM. M. MEREDITH, CHARLES NAYLOR, For the Incorporated District of N. Liberties. December 23, 1833. At the same term the following replication was filed : The replication of the Commissioners of the District of Spring Garden and of the supervisors of the public roads and high- ways in the unincorporated townships of the Northern Liberties and Penn, repliants, to the answer of the commissioners and inhabitants of the incorporated districts of the Northern Liberties, respondents. The repliants above named now and at all times hereafter saving and reserving to themselves all and all manner of benefit and ad- vantage of exception to the manifold errors and uncertainties, imperfections and insufficiencies, in the said answer of the respond- ents for replication thereto or unto so much thereof as they are advised, is material for them to make reply, say : That reserving the truth and sufficiency of all matters in their said petition alleged, all which they are ready to maintain and prove, as may be directed by this Honourable Court, and pray- ing as in their petition they have already prayed ; they deny that the said landings in the said petition mentioned, or in the said answer referred to, or any of them were purchased with public monies, or that they or any of them were held by the county commissioners in trust for the public generally, or that they, or any of them, were subject to the absolute disposal of the general assembly of this commonwealth but aver and declare that the 35 SUPREME COURT [Dec. Term, (Spring Garden . The Northern Liberties.) hay scale landing, and the landing south of Callowhill Street, were purchased with monies raised by virtue of the act of 1768, under a pledge, therein expressly set forth, that the same shall be exclusively appropriated to the purchase of landings in the town- ships of the Northern Liberties for the convenience of the inhabi- tants of the same and for the improvement of the landings so purchased, and of that at the foot of Callowhill Street; and that all and every part of the said landings, and the rents, issues, and profits thereof, and all the funds derived and obtained there- from, with their interest and accumulation were always held and admitted to be held by the county commissioners, and ought now to be held by the respondents exclusively in trust for the use and benefit of the inhabitants of the township of the Northern Liberties, as the same existed and was laid out in the years 1768 and 1796. Your repliants admit that the legislature exercised, as well they might, the right to control the management, and the leasing of the said landings and to authorize a sale of such part thereof as f*3fiT * ne y *thought beneficial to those interested in the trust; J but they expressly deny that the legislature at any time exercised the power or claimed the right to dispose of the said landings, or any part thereof, or of the funds derived therefrom, or any part thereof, in any manner or way in the slightest degree affecting OY. interfering with the trusts of the same as herein- before stated. And your repliants further say, that the respondents often have admitted and agreed, that before the said act of 1819, the said landings, and the funds derived therefrom, were held by the county commissioners in trust for the inhabitants of the township of the Northern Liberties ; and that since the said act of 1819, they the said respondents hold them subject to the same uses and trusts. And your repliants further replying, deny that the township of the Northern Liberties included, from the year 1768, to the year 1808, within its bounds the whole territory of which it had formerly been composed and in fact say, as they have before said, that the said township of the Northern Liberties included the whole territory stated in the petition, from the year 1768, until the year 1803, when the inhabitants of that portion thereof, now included within the incorporated district of the Northern Liberties, were constituted a corporation, by the name, style and title of " the commissioners and inhabitants of that part of the township of the Northern Liberties lying between the west side of Sixth Street and the Delaware River, and between Vine Street and the Cohocksinck Creek ; " and so continued until the year 1819, when the inhabitants of the said district obtained a new 1835.] OF PENNSYLVANIA. 36 (Spring Garden v. The Northern Liberties.) act of incorporation, continuing for some time the former officers, and confirming all the rules, regulations, and ordinances by them heretofore made by virtue of which said several acts of assem- bly, the said incorporated district of the Northern Liberties, was, and has continued to be, since the year 1803, totally and entirely separated from the township of the Northern Liberties. Your repliants admit, that in October, 1808, the court of Quar- ter Sessions of the county of Philadelphia, created the western part of the former township of the Northern Liberties into a new township called " Penn," a part of which was in 1813, incorpo- rated as the district of Spring Garden, and that the remainder is still known as the township of Penn but they utterly deny that the said township of Penn was separated from the township of the Northern Liberties, by the act of 1811, for any purpose except in relation to the elections to be therein held, after the passage of the said act, or that the said district or townships represented by your repliants, were for any purposes affecting their rights to the landing or landing fund herein referred to, separated from the township of the Northern Liberties ; and they aver that the said district of Spring Garden, and the township of Penn, and the present Northern Liberties, for all purposes necessary to support this application, have always *continued to be, and still r^o^T are, a part of the township of the Northern Liberties as ^ J the same existed in 1768. And your repliants further replying, in fact say, that they know nothing in relation to the landing or the funds derived and proceedings therefrom mentioned by the respondents, except what is stated in their petition since the act of 1819, whereby the respondents were appointed trustees as before stated ; they have never given, but have always refused to give, any account of the said landings, or of the rents and profits thereof, or of the sums received from the county commissioners, or of the interest and accumulation thereof, nor have they, although the funds have been amply sufficient, ever applied the same, or any part thereof, to any of the purposes for which they were to hold in trust, but have appropriated them to uses and purposes contrary to, and in violation of the provisions of the several acts of assembly, in the petition aforesaid, and in this replication, mentioned and re- ferred to. Your repliants admit, as they have before admitted, that by the act of March, 1819, the landings aforesaid in the said petition mentioned, were transferred to the respondents upon the trusts for which they were originally designed, and that a clause (which is undoubtedly usual under similar circumstances) is therein con- tained, saving nevertheless to all and every person and persons, bodies public and corporate, his, her, and their rights in all and 37 SUPREME COURT \Vec. Term, (Spring Garden e. The Northern Liberties.) every part (inter alia) of the estates above referred to other than so far as it vests the trusts thereof in the hands of the com- missioners of the said incorporated district. Your repliants in- sist that the object of this clause was to prevent the assumption of the very rights now claimed by the respondents, to hold and enjoy the said landings as their absolute property and that it is of the neglect and disregard of this provision, in the said act contained, that they, among other things, complain. They more- over deny, that the landing fund in the hands of the county com- missioners in 1819, was paid over to the said respondents, in accordance with the directions of any act of assembly whatever, or that they have any title or right whatever to the same, or its interest or accumulation. This fund was transferred by the county commissioners to the said respondents, under a belief that they were authorized so to do by the said act of 1819, and this is all that was intended to be admitted by your repliants in their pe- tition but no such authority was by the said act given. Your repliants know nothing of the landing at the end of Shackamaxon Street, nor of the allegations in relation thereto, in the said answer of the respondents contained, and can therefore neither admit nor deny them. If they shall be considered at all material to the present controversy, they pray that they may be proved and maintained according to law, and as this honourable court may award. l"*381 *"^ s to ^ e lading a * Coates Street on the Schuylkill, J and that of the north referred to by the respondents your repliants represent that they were laid out many years since as public landings by Tench Francis, then the owner of a large tract of land in that vicinity (since included within the boundaries of the district of Spring Garden,) for the common use of the owners and occupiers of that estate no one had either the right, ability, or inclination to improve them so as to render them serviceable as landings, and they remained for many years useless to those for whom they were intended. The commissioners of the district of Spring Garden, were then requested by the owners and occupiers of the property aforesaid, to take these landings under their charge, and as an evidence of their wishes, released to them all their interest therein. Upon these facts being laid before the legislature, they passed the act of twelfth of March, 1820, not by the procurement of your repliants, or of any one else, but as your repliants verily believe, because, as in their corporate capacity the commissioners of the district of Spring Garden represented the very persons entitled to these landings ; as they had been requested to accept releases of their rights and take them under their care, the legislature thought it just, equitable, and expedient no saving clause was inserted, because there was no rights to save. Since the passage of this 1835.] OF PENNSYLVANIA. 38 (Spring Garden v. The Northern Liberties.) act, the said commissioners, under the powers conferred on them, have erected wharves on one of these landings at a great expense, and paid them from their corporate funds, raised by taxes upon the district of Spring Garden. They have had no public landing fund from which to defray these expenses no trust estates have been transferred to them, to be applied to these objects all the public landings they possess, have been purchased arid paid for from their corporate estates, or granted to them by individuals and they have heard no charge by any one interested in them, that the act aforesaid was either contrary to their wishes or in violation of their rights. As no semblance or pretence of claim to any part of these landings has been suggested in the respond- ents, your repliants cannot perceive the relevancy or materiality of any reference thereto. Your repliants assert that there are many landings at the ends of streets, within the limits of the district and townships they represent, which if purchased and improved, would be of great public accommodation and advantage but the legislature has never in their cases, thought it expedient to give them these landings, unless with the consent of the individuals OAvning the soil, or after providing for a full and adequate compensation. The object of the landing fund was to enable the inhabitants of the township of the Northern Liberties to make this compensa- tion, and a proper application of the monies belonging to it since 1819, would have procured for their use, the most valuable and important positions. Among other grievances occasioned by the breach of trust of which *your repliants complain, they will now be under the necessity of paying double or treble [*39] the amount, which in 1819, or soon after, would have made all the requisite purchases. The respondents have, in the mean time, contrary to the condi- tions of the said trust, procured to be vested in them every land- ing at the end of the streets, within their corporate limits, and although thus so amply supplied, have never condescended to at- tend to the wants or wishes of any of the Cestuis que trust, whose property they have applied for their own private use and benefit. Wherefore, your repliants aver and will prove, that the said answer is uncertain, untrue, and insufficient to be replied unto by your repliants, without that any matter or thing whatever, in the said answer contained, material and effectual in the law to be re- plied unto, and confessed and avoided, traversed or denied, is true all which matter and things these repliants are and will be ready to aver and prove, as this honourable court shall award and hum- bly pray as they have already prayed. H. J. WILLIAMS, ) ^ .-, ELI K. PRICE. ' \ Mr Pet^t^oners. February 20, 1834. 89 SUPREME COURT [Dec. Term, (Spring Garden . The Northern Liberties.) The following rejoinder was filed: The rejoinder of the commissioners and inhabitants of the in- corporated district t>f the Northern Liberties to the replication of the commissioners, &c. of Spring Garden, and the supervisors of the unincorporated township of the Northern Liberties respect- fully sheweth: That the rejoinants do entirely and absolutely deny all the statements and allegations contained in the said replication, which are inconsistent with or contradictory to any part of the answer heretofore made by the rejoinants to the petition in this case, and the rejoinahts do hereby re-affirm and aver to be true all the facts set forth in their said answer. And for rejoinder to the several new but irrelevant matters in the said replication, or so much thereof as they are -ad vised it is material for them to rejoin to, the rejoinants say, 1st. That the rejoinants have never at any time admitted or agreed that before the said act of 1819, the said landings and the funds derived therefrom were held by the county commissioners in trust for the inhabitants of the township of the Northern Liberties, nor that since the said act of 1819, they, the said rejoinants so held them. 2d. That the landing fund in the hands of the county commis- sioners in 1819, was paid over by them to the rejoinants in pur- suance of the provisions of the act of 1819, before mentioned, and that such payment was authorized by that act. F*401 *^' ^ e re ji nan t s deny that the incorporated district * of 'the Northern Liberties has ever ceased (for any of the purposes material in this case) to be a part of the township of the Northern Liberties. 4th. The rejoinants aver that all the landings at the ends of streets, within the limits of the district of Spring Garden and Kensington, are vested in the respective corporations of those districts, and that they all became so vested without expense to either of the said corporations. 5th. The rejoinants deny that all the landings at the ends of the streets, within their corporate limits, have been purchased out of the binding fund in question ; they have never misapplied or misappropriated that fund, or any part of it, nor in any respect, violated the laws of the land, under the sanction of which they hold the same, and the landings from which it has arisen, as set forth in the act of 1819, before mentioned. Wherefore, your rejoinants aver and will prove that the said replication is uncertain, untrue and insufficient, and again humbly pray this honourable court, as in their answer they have hereto- fore already prayed. WM. M. MEREDITH, CHARLES NAYLOR, For the Incorporated District of N. Liberties. February 20, 1834. 1835.] OF PENNSYLVANIA. 40 (Spring Garden v. The Northern Liberties.) The questions arising upon these pleadings were argued at con- siderable length, by Mr. Miles, Mr. Price, Mr. J. M. Reed and Mr. Williams, for the several petitioners, and by Mr. Goodman and Mr. W. M. Meredith, (with whom was Mr. Naylor^) for the defendants. For the petitioners, it was contended that upon the true con- struction of the several acts of assembly relating to the township of the Northern Liberties, which were cited and commented upon, ( the district and townships which once formed part of the old town- ships of the Northern Liberties, though now divided for municipal purposes, were equally entitled, with the incorporated district, to the profits of the landing places. The legislature never could have intended that this large fund should be devoted exclusively to the comparatively small space occupied by the defendants, while the remaining fronts on the Delaware, and the whole front on the Schuylkill were unprovided for. It was clearly the in- tention that tolls should be taken at the respective wharves, and applied to the use of some part or whole of the township. Now, in 1768, the legislature sat in Philadelphia; and the framers of the act knew that the wharves in the city were rented by the corporation, and the rents and profits applied to the ease of the taxes throughout the city. Such was the intention with respect to the township. Spring Garden *and Kensington have r*,. The Northern Liberties.) (2 Serg. & R. 108) ; Angel on Corporations, 503; 3 Penn. Rep. 384; 17 Serg. & R. 404; 1 Vernon, 42,55; 2 Vernon 431; Com. Dig. Chancery, 4 W. 13; 1 Roper, 92; Livingston v. Moore, (7 Peter's Rep. 546) ; Case of Carnal a Road, (1 P. A. Browne, 164) ; 2 Madd. Chan. 125 ; M'Girr v. Aaron, (1 Penn. Rep. 49); Hampshire v. Franklin, (16 Mass. Rep. 83); 2 Kent's Com. 223; 2 Atkyns, 87. For the defendants, it was argued, 1. That the money raised by the act of 1768, was public money, and as such, absolutely subject to the control of the legislature. 2. That the landings originally purchased by the county com- missioners, were expressly in trust for the public generally, and not for the inhabitants of any particular part of the commonwealth. 3. That the landing subsequently purchased by the county commissioners out of the proceeds of the same fund, was, in like manner, held by them in trust for the public. 4. That none of the acts of Assembly passed between 1768 and 1819, made any change in this respect. 5. That by the act of 1819, the landings were vested in the commissioners of the Northern Liberties, and that the legislature had the right of so vesting them. 6. That the commissioners of the Northern Liberties held the landing, under the act of 1819, in trust for the public at large, so far as that all the inhabitants of the commonwealth were authorized to use the landings, paying the regular tolls for such r+4n~\ use ; that *the commissioners of the Northern Liberties ' had, under the act of 1819, the right to receive the in- come and manage the renting, &c., of the landings. The direc- tion as to the manner of investing the surplus income, was a mere legislative direction, and created no trust for any body. 7. The complainants (nor any other part of the territory of the old Northern Liberties, not included in the incorporated dis- trict of the Northern Liberties) never were cestui que trusts of these landings. There never was any express trust declared for them. The landings were not bought with their money, and there was, therefore, no resulting trust for them. There was no trust by implication, for their benefit. They are absolutely with- out the shadow of a right. As to the township of Penn, and dis- trict of Spring Garden, they are not even included within the bounds of the territory, within which, by the act of 1819, the commissioners of the Northern Liberties were directed to expend the surplus income. In 1819, Penn and Spring Garden were not within the township of the Northern Liberties. The legislature have always been in the habit, in erecting municipal corporations, of vesting in such corporations the public 1835.] OF PENNSYLVANIA. 42 (Spring Garden v. The Northern Liberties.) landings within their bounds. They gave to Spring Garden the valuable public landing at the foot of Coates street. They gave to Kensington the public landings at the ends of streets within that district. The Legislature have done no more than this, in favour of the incorporated district of the Northern Liberties, and why should they have done less ? The defendants' counsel cited the following cases : Ehrenzeller v. Union Canal Company, (1 Rawle, 181) ; Kissler v. Kissler, (2 Watts, 323); Barterv. The Commonwealth, (3Penn.Rep. 259); Easton ttoad Case, (3 Rawle, 195); Irvine v. The Turnpike Com- pany, (2 Penn. Rep. 470); Runyv. Schoenberyer, (2 Watts, 23). The opinion of the court was delivered by KENNEDY, J. The proceeding has been instituted in this case, under a special act of the legislature, passed the 12th of April, 1828, for the purpose of having it enquired into and determined by this court, whether or not the complainants have a right to any part or portion of the value or income of the public wharf or landing place, called the hay scale landing, and the public wharf or landing on the south of and adjoining Callowhill street, which lie within the incorporated district of the Northern Liberties, and are held in trust by the board of commissioners thereof. That the legal title to these wharves and landing places was vested, and still continues to be so, in the board of commissioners of the incorporated district of the Northern Liberties by the thirty-sixth section of an act of assembly, passed the 16th of March, 1819, is admitted ; * but the great question raised is, for whose (-#40 -i use was it so invested ? The complainants contend that *- it was for the use and benefit of all those who were inhabitants ' within the geographical limits of what was called and known by the name of the Northern Liberties in 1768, or the township of the Northern Liberties in 1796, or should at any time become such, after the .first of these dates. The commissioners of the incorporated district of the Northern Liberties allege, on the other hand, that it was vested in them for the use of the public generally, and not particularly for the use of the inhabitants of what was then called the Northern Liberties, or the township of the Northern Liberties at any time, more than for the use of the inhabitants of any other part of the State. As to the claim of the complainants, notwithstanding their counsel have advocated it with great zeal and earnestness, and refer to many acts of assembly, as well as books on municipal and international law, in support of it, we still think that they have failed to sustain it. Among the acts of assembly referred to, none appear to have any bearing upon the question to be solved, unless, perhaps, it 43 SUPREME COURT [Dec. Term, (Spring Garden e. The Northern Liberties.) may be those of the 20th of February, 1768, (1 Smith's L. 278 ;) the 4th of April, 1796, (3 Smith's L. 274 ;) the 28th of March, 1803, (4 Smith's L. 35 ;) the 1st of April 1811, the 13th section, (5 Smith's L. 255 ;) the 22d of March, 1813, (6 Smith's L. 37 ;) the 16th of March, 1819, (7 Smith's L. 177 ;) and the 6th of March, 1820, (7 Smith's L. 260.) I do not, however, consider it necessary to notice them all ; because the act of the 20th of February, 1768, which the complainants make the foundation of their claim, when construed according to the natural import of its terms, and what would seem to have been the intention of the legislature, does not bear them out. They have endeavored to show that by this aot the wharves and public landing places in question, were declared and established to be for the use of the inhabitants of what was therein called the Northern Liberties, and afterwards, the township of the Northern Liberties, in the act of the 4th of April, 1796. For this they rely chiefly upon the title and preamble of the act. The title is, " An act for raising, by way of lottery, the sum of five thousand two hundred and fifty pounds, for the purchasing a public landing in the North- ern Liberties, and paving the streets of the city of Philadelphia ;" and the preamble thereof, so far as relied on, is in these words, " Whereas it has been represented to the assembly of this pro- vince, by petition from sundry inhabitants of the city of Phila- delphia, and Liberties thereto adjoining, that the few public land- ings at the north end of the said city, and in the said Liberties thereof, are scarcely sufficient for the accommodation of its present inhabitants and the king's barracks, &c., to provide for which, Be it enacted," &c. Now, if the enacting part of the act had not, in express terms, declared that the landing therein men- f*441 ti ne d should be purchased *for a different use from that ' which, it is contended by the counsel for the complain- ants, the title and preamble thereof indicate, there might have been perhaps, some show of plausibility, at least, in drawing the conclusion which they have done. But the tenth section of the act, as originally published, or the second section thereof, as pub- lished in 1 Smith's L. 278, 279, enacts and declares, " that the commissioners of the county of Philadelphia, in trust for the pub- lic, by and with the consent and approbation of the justices of the peace of the said county, in the court of Quarter Sessions, shall, and they are thereby required and enjoined to buy a landing nearly opposite the said barracks, and receive the deed thereof, in trust for the public ; and further to build, or cause to be built thereon, a good wharf and a pier, for the use of the public." And by the next succeeding section, it is further made the duty of the said commissioners, with the approbation of three Justices of the Peace of the county, to take care of the landing, by letting 1835.] OF PENNSYLVANIA. 44 (Spring Gardens. The Northern Liberties.) it out for the purpose of repairing and improving it for ever there- after, as the said commissioners and justices, or a majority of them, for the time being, may judge most for the public good. Now, although it may be, as rather seems to be indicated by the preamble of the act, that the legislature was induced or prompted to act upon this subject by a representation made in regard to it by some of the then inhabitants of the city of Phila- delphia, and liberties thereto adjoining, stating that the few land- ings at the north end of the city and in the liberties thereto, were scarcely sufficient for the accommodation of its inhabitants at that time and the king's barracks, yet it is clear that the legis- lature did not view the matter as a private grievance, but as one which concerned the public at large; and therefore expressly declared and directed, that the purchase of the landing should not only be in trust for the public, but that the deed of conveyance from the vendor to the commissioners for it, should also be taken in trust for the public ; and, again, that the commissioners, after having purchased the landing, should not only build a wharf and pier thereon, for the use of the public, but should likewise for ever thereafter, repair and improve the same as they should judge best for the public good. Thus we see that the public is brought to view and designated as the only beneficiary of the landing as often as it is mentioned, or anything said in relation to it, almost throughout the act, so that it is impossible to impute this repeti- tion and uniformity of the declaration of the trust in favour of the public, to accident or inadvertence on the part of the legis- lature, or indeed to any thing but settled design. And so it was taken and considered by subsequent legislatures in their action on the subject. In the preamble to the act of the 4th of April, giving further powers to the commissioners of the county of Philadelphia, in conjunction with three justices of the peace of the county, over the landings and wharves in dispute, it is stated "that the public *landings on the river Delaware, in the township of the r^jc-i Northern Liberties, may be rendered more serviceable > and productive by giving further powers to the commissioners of the county of Philadelphia, in whom the same are vested by laiv for the use* of the public ." And so throughout this act they are styled public landings and wharves; and are placed under the control and management of the commissioners of the county and three justices of the same, without regard to or even mention of the inhabitants of the township of the Northern Liberties. And the 3d section enacts, " that it shall be the duty of the said com- missioners to keep the said landings, wharves, and hay scales, in good and perfect order and repair, and to improve the same from time to time in such manner as will most conduce to the public advantage; and whenever the funds which have arisen, or shall 45 SUPREME COURT [Dec. Term, (Spring Garden t>. The Northern Liberties.) arise therefrom, shall over and above the said repairs and im- provements, be sufficient to purchase other landings, or wharves, it shall be the duty of the said commissioners, with the consent and approbation of three justices as aforesaid, to make such purchases within the township of the Northern Liberties, and to improve the same ; and the landings or wharves so purchased or improved, shall be held under the like trusts and subject to the same rules and regulations as the before mentioned public land- ings and wharves." The circumstance of the commissioners being restrained by this section to the purchase of landings and wharves lying within the township of the Northern Liberties as it then stood, has been laid hold of also by the counsel of the complainants, to show that the legislature intended to appropri- ate not only the profits arising from all the public landings and wharves then within the township of the Northern Liberties, to the use of the inhabitants thereof, but the profits likewise of all that should thereafter be purchased with the funds arising from those then in being. But, clearly, there is no ground whatever for this construction, because the township is not mentioned for the purpose of showing for whose use the purchases should be made ; nor are there any terms of appropriation connected with it. It is introduced merely to designate the space or bounds within which the commissioners should make the purchases en- joined by the act ; and it is also perfectly obvious, that if the township had been introduced as the object for whose use the purchase of the landings and wharves was to be made, the next clause declaring that they " should be held under the like trusts" would be worse than useless, because it does not enforce or even comport with such construction, and therefore ought not to have been inserted ; but it having been declared in the preamble of the act that the public landings on the Delaware, then within the township of the Northern Liberties, were vested by law in the commissioners of the county for the use of the public, the words " like trust," must be considered as having a direct relation thereto, which renders every part of the section perfectly perspi- f*461 cuous as wc ^ ^ consistent *with itself. Seeing, then, that ' these landings and wharves were held for the use of the public, and not for the inhabitants of any particular township, or county, or section of the state, it cannot be questioned but the legislature had the right, as often as they saw fit, to direct and change the appropriation of the funds or profits arising therefrom ; and this was done in 1819, as to the public landings and wharves at the end of Coates street, and at the end of Cal- lowhill street. By the 36th section of the act of the 16th of March, passed in that year, and referred to above, the title to these wharves and landing places last mentioned, was vested in 1835.] OF PENNSYLVANIA. 46 (Spring Garden v. The Northern Liberties.) the board of commissioners and their successors, of the incorpo- rated district of the Northern Liberties, "for the use and benefit of the inhabitants of the said district" The title to them had previously been vested in the commissioners of the county of Philadelphia, for the use of the public. By this same section it is also declared and enacted as follows, that " the public wharf or landing place, commonly called the Hay -scale landing, as also the public wharf or landing place, on the south side of and ad- joining Callowhill street, (being the wharves and landing places now in controversy,) heretofore held in trust by the commis- sioners of the county of Philadelphia, shall be and are hereby vested in the board of commissioners of said district, (meaning the incorporated district of the Northern Liberties,) who shall keep the said landings and wharves in good and perfect order and repair, and to improve the same from time to time in such manner, as will most conduce to the public advantage ; and when- ever the funds which shall arise therefrom, shall, over and above the said repair and improvements, be sufficient to purchase other landings or wharves, it shall be the duty of the said commis- sioners to make such purchase within the township of the North- ern Liberties, and to improve the same." Thus, although the title for these wharves and landing places, which are the subject of dispute here, is taken from the commissioners of the county of Philadelphia, and vested in the board of commissioners of the incorporated district of the Northern Liberties, yet we see that the legislature studiously avoided making any change whatever in the use of them ; and the commissioners of the incorporated district of the Northern Liberties were thereby expressly re- quired to keep them in good and perfect order and repair, and to improve them from time to time in such manner as should most conduce to the public advantage without even the slightest allusion to or mention of the inhabitants of the township of the Northern Liberties ; and what renders the de- sign of the legislature at that time to continue the use of these latter wharves and landing places to the use of the public gener- ally, the more striking is, that in the preceding part of the sec- tion, they have declared that the wharves and public landings at the end of Coates and Callowhill streets, respectively, should be held for the use and benefit of the inhabitants of the incorporated * district of the Northern Liberties, without any direction r*A>r-i given to improve them, as should most conduce to the * public advantage, as was done in respect to the wharves and land- ing places in question. There, was, however, a change made by this section of the act of 1819, as regarded the place, within which the surplus funds arising from these last mentioned wharves or landing places should be invested by the commissioners in the 47 SUPREME COURT [Dec. Term, (Spring Garden t>. The Northern Liberties.) purchase of other wharves or landing places, by restraining and confining them within the then existing bounds of the township of the Northern Liberties; which clearly excluded the district of Spring Grrden and the township of Penn, but included the incorporated district of the Northern Liberties and the district of Kensington ; because the township of Penn, which embraces the district of Spring Garden, having been erected and taken off from the township of the Northern Liberties, by a proceed- ing and order made for that purpose in the Court of Quarter Sessions, of the County of Philadelphia in 1808, and afterwards confirmed and established by the 13th section of the act of Assembly of the 1st of April, 1811, already mentioned, could therefore form no part of the latter in 1819, as it had done pre- viously. And as to the reason for introducing the township of the Northern Liberties in this part of the 36th section of the act of 1819, it is perfectly manifest, that it was done for no other purpose, than to designate and point out to the commissioners of the incorporated district of the Northern Liberties, the place or limits within which they should thereafter invest the surplus funds arising from the Hay -scale landing, and that south of and adjoining to Callowhill street. This being the only reason for mentioning the township of the Northern Liberties, it would then seem to follow of necessity, that its limits at that time were made the measure of the space, within which the investiture of the surplus funds was intended as well as directed to be made. And here it may be further observed, that the legislature have shown, in this 36th section, as well as in the 35th, immediately preceding, that when they intended to appropriate the use of any wharves, public landings, or other property to the use of the inhabitants of any particular district, township, or part of the state, they did it in express terms and language, susceptible of but one construction; as when they declare that the public wharves or landing places at the end of Coates and Callowhill streets, shall be vested in the board of commissioners and their successors, of the incorporated district of the Northern Liberties, "for the use and benefit of the inhabitants of the said district;" and in the 35th section, that the building commonly called the town house, together with the market house and stalls erected in Second street, between Coates street and Poplar lane, shall be vested in like manner in the same commissioners, " for the use of the inhabitants of the said district." It has also been said, in the course of their argument, by the F*481 counse l *f * ne complainants, that the money with which ' the wharves and landing places in controversy were ob- tained belonged to the inhabitants of the township of the Northern Liberties, according to its limits in 1768 ; or at least was raised 1835.] OF PENNSYLVANIA. 48 (Lancaster*. De Normandie.) by them, and that they thereby acquired a resulting trust in these Avharves or landing places : but this is a great mistake, for the money with which they were purchased, so far as anything has been shown in relation to this point, was raised by a lottery under the authority given by the act of 1768, and therefore must be considered public money according to the principle laid down in Elirenzeller v. The Union Canal Company ', 1 Rawle, 189. It was levied by a species of indirect voluntary assessment on the public, to which the inhabitants of the township of the Northern Liberties may or may not have contributed ; and whether they did or not, is unknown, and wholly immaterial. But, besides, it was expressly declared by the legislature, that the money should be raised for the purpose of being invested in a purchase, to be made for the benefit and use of the public, and not for the inhabitants of any particular township or district ; and unless we disregard the plain meaning of all the acts of assembly bearing on this matter, which seem to be couched in terms so perfectly free from all ambiguity, that it is impossible to misapprehend their true import, we cannot avoid pronouncing a judgment against the complainants. We are therefore decidedly of opinion, that the public wharf or landing place, called the Hay-scale landing, and the public wharf or landing place on the south of and adjoining Callowhill street, were vested by the act of 1819, in the board of commis- sioners of the incorporated district of the Northern Liberties in trust for the use of the public generally ; and that the complain- ants, either collectively or separately, have no claims or rights to any part or portion of the value or income thereof. Whereupon it is ordered and adjudged by this court, that the petitions of the complainants be dismissed, and that they pay all the costs which have accrued in this case. Cited by Counsel, 5 Wharton, 334 ; 4 Harris, 86 ; 7 P. F. Smith, 216. [PHILADELPHIA, JANUARY 7, 1836.] [*49] LANCASTER against DE NORMANDIE. IN ERROR. This court will not consider any paper annexed to the record, as furnishing the opinion of the court below, under the act of 1806, unless it also ap- pear by the record, that the paper was filed at the request of one of the parties or of his counsel. VOL. i. 4 49 SUPREME COURT [Dec. Term, (Lancaster c. De Normandie.) UPON a writ of error to the Court of Common Pleas of Bucks county, it appeared by the record, that James De Normandie brought an action of covenant in that court, against Morris Lan- caster, in which he declared upon certain articles of agreement under seal ; and the defendant having pleaded " covenants per- formed," &c., the parties went to trial upon this issue. An- nexed to the record was a paper beginning thus : " James De Normandie, } v. > Covenant. Morris Lancaster. ) The counsel for the defendant, requests the court to charge the 1. That the action is brought upon articles of co-partnership, and that consequently no action of covenant can be maintained, because the plaintiff and defendant were co-partners. The present action may be sustained notwithstanding they were co-partners." The lines in italics were averred to be the answer of the court. There were several other points, with the alleged answers of the court ; but the paper was not authenticated by the signature of counsel or otherwise ; and there was no bill of exceptions an- nexed to the record ; nor did it appear that the counsel on either side had requested the court to file their opinion of record. In this court it was assigned for error, that the court below had erred in their charge to the jury, upon the points stated. On the opening of the case this day, Mr. Ingraham for the defendant in error, suggested that there was nothing on the record to bring up the points, which the counsel on the other side had assigned for error. Mr. Ross stated that the record was made up in conformity with the practice which had long prevailed in Bucks county. The paper in question was handed by the court to the prothonotary, F* r i01 a *" en( ^ ** ' ^ ne cnar g e > an d from the time of filing of * the paper, it was supposed to be liable to exception under the act of 1806. The paper is sufficiently authenticated by the signature of the judge to the return made on the writ of error. He cited Downing v. Baldwin, (1 Serg. & Rawle, 298.) Mr. Kittera, on the same side. Since the act of 1806, the practice has perhaps been unsettled ; but many cases brought into this court have been considered and adjudicated, upon papers purporting, like the present, to be the charge of the court below. Unless there is a bill of exceptions, or a request of counsel under 1835.] OF PENNSYLVANIA. 50 (Lancaster v. De Normandie.) the act of assembly, a judge has no right to order his opinion to be filed ' of record. It is to be presumed, therefore, that all that was necessary for the purpose was done. It is to appear upon the record that the counsel requested the judge to file his opinion in writing ? [HUSTON, J. It was so held by us last June, at Harrisburg.] The case of Downing v. Baldwin, certainly does not require it. The opinion of the court was delivered by GIBSON, C. J. It is singular to find ourselves formally settling, at so late a day, a point of practice under the act of 1806, which has been a subject of daily occurrence and repeated decision. The adjudications on it, I had thought, were to 'be found in the reports ; and I have consequently been surprised to find nothing there but the decisions in Downing v. Baldwin, and Brown v. Caldwell, (10 Serg. & Rawle, 114.) The first of these cases was determined shortly before I came to the bench ; since which time the practice has been variously modified. Downing v. Baldwin settled no more than that the law of the case may be reviewed, upon the opinion of the judge who tried the cause, as a substi- tute for a bill of exceptions ; but certain expressions of the Chief Justice might be thought to require no more than the presence of the paper on the file, without regard to the circumstances under Avhich it came there. "The Act of Assembly," he said, "directs the opinion of the judge to be filed on record ; it becomes then a part of the record, and being so, the superior court must of necessity take notice of it. It is surely as much a part of the record as a bill of exceptions ; and I think rather more so, be- cause a bill of exceptions is no part of the body of the record, but annexed to it ; and may be withdrawn by the party who ten- dered it. But an opinion filed by positive command of law, is of the body of the record, and must so remain." The consequence thus indicated is inevitable, where the opinion has been legally filed ; but that was not the difficulty. It appears from what was said by Mr. Justice Yeates, that the paper had been filed indis- putably at the instance of counsel ; and the point was not in con- test. But the *chief justice seemed to think that an r^r-j-i opinion filed was a substitute, if not an equivalent for, a L bill of exceptions under the statute of Westm. 2 ; which requires the exception to be specificially propounded, before it is sealed. This, however, was denied by Mr. Justice Duncan, in delivering the opinion of the court in Brown v. Galdwell, in which it was certainly determined that the filing by request need not appear of record. The remarks made there, would, however, seem to call rather for a restricted than an enlarged construction. The vexa- tion and inconvenience of the proceeding in practice, so faithfully 51 SUPREME COURT [Dec. Term, (Case of John Beaumont.) depicted, subsequently forced the court in various instances, to exact a rigid compliance with the requirements of the act, and to settle the practice differently from the rule laid down in Brown v. Caldwell. What, then, are those requirements ? " In all cases where the judge or judges, &c. shall deliver the opinion of the court, if either party by himself or counsel require it, it shall be the duty of the said judges respectively, to reduce the opinion so given, with the reasons therefor, to writing, and file the same of record in the cause." Now, as the act authorizes nothing which it does not enjoin ; where there has been no request, it gives no authority to put the matter on the record at all. It never was in- tended to permit the judge to set before the parties gratuitous incitements to appellate litigation, by exposing on the record, errors which had escaped their notice at the time. Even restrained to its legitimate uses, the proceeding has been found sufficiently pro- lific of vexatious and unprofitable contest. By the express terms of the act, the judge has authority to file his opinion of record, but at the request of a party desiring to have advantage from it ; and when he does it of his own head, he makes nothing matter of record, which was not so before. How, then, is it to appear that he acted at the instance of the party ? Undoubtedly, as we have often decided in conformity to the words of the act particularly in an exceedingly hard case during the last term at Harrisburg by his certificate filed with his opinion, or at least a memorandum at the foot of it ; for as a court of error can inspect nothing but the record, it cannot receive information of the fact elsewhere. It is the business of counsel, therefore, to see that the proper evidence be sent up ; for where the fault cannot be repaired by a supplementary certificate, he will else lose the benefit of his ex- ception. For want of this, in the present instance, we are pre- cluded from considering the assignment of error. Judgment affirmed. Cited by Counsel, 5 Wharton, 180. Cited by the Court, 5 Watts, 71 ; 1 Harris, 386. [*52] ['PHILADELPHIA, JANUARY 11, 1836.] In the matter of JOHN BEAUMONT. CERTIORARI. A return of an inquisition, held by virtue of a commission in the nature of a writ df lunatico inquirendo, that the party, "by reason of old age and long continued sickness, has Income so far deprived of reason and understanding, as to be wholly unfit to manage his estate," is not a suffi- cient finding that the party is "7km compo mentis ;" within the consti- tution and laws of this Commonwealth. 1835.] OF PENNSYLVANIA. 52 (Case of John Beaumont.) THIS case came before the court upon a certiorari to the Court of Common Pleas of Bucks County. Upon the petition of John T. Neely, setting forth, that John Beaumont, of the County of Bucks, had, " by reason of old age and long continued sickness, become so far deprived of reason and understanding, as to be wholly unfit and unable to manage his estate," and was wasting and destroying the same, the Court of Common Pleas of that County issued a commission in nature of a writ de lunatico inquirendo ; upon which the commissioners and jury returned that "the said John Beaumont, at the time of taking this inquisition, by reason of old age and long con- tinued sickness, has become so far deprived of reason and under- standing, as to be wholly unfit to manage his estate, and hath been so for the last eighteen months and upwards." The jury also found that he was of the age of 75 years. On the return of the inquest, several exceptions were filed on the part of John Beau- mont. The material exception was, that the finding was defec- tive and insufficient to give the court jurisdiction. The Court of Common Pleas being of this opinion, after argument, quashed the inquisition ; and the proceedings being removed to this Court, the decision of the Court below upon this point, was assigned for error. Mr. Ross, for the plaintiff in error, argued that under the sixth section of the fifth article of the constitution of this Common- wealth, which declares that " the Supreme Court, and the several Courts of Common Pleas, shall, besides the powers heretofore usually exercised by them, have the power of a Court of Chan- cery, so far as relates to the care of the persons and estates of those who' are non compotes mentis" the finding in this case was sufficient. He cited 1 Black. Com. 304 ; Co. Litt. 246, (b.) s. 405; Exparte Barnsley, (3 Atkyns, 371;) Shelford on Lunacy, 87, 88, 89 ; Ridgway v. Darwin, (8 Vesey, 65 ;) Exparte Cran- mer, (12 Vesey, 445 ;) 1 Woodeson's Lectures 411 ; 8 Mass. Rep. 129 ; 4 Dessaussure, 546 ; 2 Johns. Chan. Rep. 232. *Mr. Randall, contra, stated that in the Common r^ro-i Pleas, for the City and County of Philadelphia, where "- ' commissions in the nature of the writ de lunatico inquirendo, had been numerous, he had ascertained upon inquiry, that no return had been confirmed, unless the party has been found to be " non compos mentis" or " of unsound mind." He argued that these words were essential to authorize the interference of the court ; and at all events, that the return in the present case, was insuf- ficient. He cited Schoales & Leroy's Rep. 439; Shelford on Lunacy, 22, 86, 108, 797 ; 1 Collinson, 148 ; 12 Petersdorff's 53 SUPREME COURT [Dec. Term, (Case of John Beaumont.) Abr. 394; 1 Ruffin's Rep. 11; 5 Halsted, 217. To show the sense in which the words, "won compos mentis" were used by the legislature, the acts of 14th April, 1794, (3 Sm. L. 129,) and 7th Feb. 1814, (6 Sm. L. 104,) were cited. Mr. Randall also re- ferred to the acts of 25th Feb. 1819, (7 Sm. L. 155,) and 2d April, 1822, (7 Sm. L. 604,) relating to "Habitual Drunkards," in support of his argujnent, that mere imbecility was not within the ordinary jurisdiction of the courts. KENNEDY, J., delivered the opinion of the court. This case presents but one question, and that is, whether the finding of the inquest shows that John Beaumont was non compos mentis within the meaning of this phrase or term, as used in the sixth section of the fifth article of the constitution, whereby the Supreme Court, and the several Courts of Common Pleas of this State, among other things, are "invested with the power of a Court of Chancery, so far as relates to the care of the persons and estates of those who are non compotes mentis." On the part of the relator it has been argued, that according to the general sense and understanding of this term, as received and acted on in Chancery, the state and condition of Beaumont, as represented by the inquest, falls clearly within it; and in support of this Sir Wm. Blackstone has been vouched ; where, in the second volume of his Commentaries, 304, he says, " a lunatic, or non compos mentis is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason. A lunatic, indeed, is properly one that hath lucid intervals: sometimes enjoying his senses, and sometimes not; and that frequently depending on the change of the mo'on. But under the general name of non compos mentis, (which Sir Edward Coke says is the most legal name,) are comprised not only lunatics, but persons under frenzies, or who lose their intellects by disease ; those that groio deaf, dumb, and blind, not being born so; or such, in short, as are judyed by the Court of Chancery incapable of conducting their own affairs." It is this latter sentence that is relied on; for which, it may be observed, the learned commentator cites no authority. Mr. Fonblanque, in his Treatise on Equity, vol. I. page 63, note p., has transcribed the above passage, and observes that he was induced to do so "in order to obviate f-^r j-i *the error into which the learned commentator seems to ' have fallen, in the concluding sentence." He then pro- ceeds by saying, that " the rules of judging upon the point of insanity being the same at law and in equity, ( Osmond v. Fitz- roy, 3 P. Williams, 130 ; Bennett v. Vade, 2 Atk. 327,) the Courts of Chancery cannot assume any kind of discretion upon the subject ; and, therefore, in Ex parte Barnsley, 3 Atk. 168, 1835.] OF PENNSYLVANIA. 54 (Case of John Beaumont.) the return of the inquest, stating ' that W. B. was at the time of taking the inquisition, from the weakness of his mind, inca- pable of governing himself, and his lands and tenements/ was held illegal and void ; and many adjudged cases being cited to the same effect, Lord Hardwicke congratulated himself that, except in two or three instances, the return had been that he is lunaticus, or non compos mentis, or insance mentis, or, since the proceedings have been in English, of unsound mind ; which amounts to the same thing." And afterwards, in 1751, Lord Hardwicke, in Lord Donegal's case, 2 Yes. 407, according to the same prin- ciple, refused a commission of lunacy ; though there appeared to be an extreme degree of weakness of understanding and imbe- cility of mind on the part of Lord Donegal. In order, however, to come to a correct conclusion on the present question, it is proper to inquire and to ascertain first, whether the term non compos mentis, had not acquired a legal and technical meaning at, and anterior to the formation of the constitution of this state, in 1791 ; because, if it had, I take it, that we are bound to interpret it accordingly ; and this, or any other Court in the state, has no power or authority to change it, so as to include any other description of persons in a proceeding of lunacy, than such as shall appear to come fairly within the meaning so affixed to it. Seeing we have derived the most of our legal terms and phrases, as well as principles from the English Common Law, a reference to it, and the decisions of the Courts of England in relation thereto, may not be amiss, in order to obtain some light upon the subject. Littleton, section 405, speaks of a man of non sane memory, as one who is non compos mentis ; upon which Lord Coke, in his Commentary, (Co. Lit. 246, b, 246, a,) says, " here Littleton explaineth a man of no sound memory to be non compos mentis. Many times (as here it appeareth) the Latin word explaineth the true sense, and calleth him not, amens, demens,furiosus, lunaticus,fatuus, stultus, or the like ; for non compos mentis is the most sure and legal" Now, it is obvious that Lord Coke considered non compos mentis not only the legal, but the sure term, and not, amens, demens, &c. He also divides non compos mentis into four sorts 1st. An idiot, who, from his nativity, by a perpetual infirmity, is non compos mentis; 2d. He that by sickness, grief, or other accident, wholly loseth his memory and understanding; 3d. A lunatic, who hath sometimes his understanding and sometimes not, aliquando gaudet lucidis intervallis ; and therefore is called non compos mentis, so long as he hath not understanding. *]astly, he that, by r*cc-i his own vicious act, for a time depriveth himself of his ^ memory and understanding, as he that is drunken. And this last kind of non compos mentis shall give no privilege or benefit 55 SUPREME COURT [Dec. Term, (Case of John Beaumont.) to him or his heirs." And in Beverly's case, 4 Co. 124, a non compos mentis of the second sort, is described to be "he who was of good and sound memory, and by the visitation of God lost it." Now, it must be admitted, that there are various degrees of memory and understanding, from that of the most powerful and vigorous, down to that of the most abject and imbecile, yet it is perfectly manifest that Littleton and Lord Coke did not consider a wow compos mentis as embraced within any of the several grades of mind, but as one wholly destitute of it, at least occa- sionally, that is, of both memory and understanding. And such, I apprehend, was the prevailing sentiment down to the time of Lord Hardwicke, who, in 1745, decided the case of Barnsley, already mentioned, in conformity to it. In 3 Atk. 173, he says, "being non compos mentis, of unsound mind, are certain terms in law, and import a total deprivation of sense ; now weakness does not carry this idea along with it ; but courts of law under- stand what is meant by non compos, or insane, as they are words of a determinate signification." Then he gives Lord Coke for authority, "that they are persons of non sane memory;" and adds, "wow compos mentis is used in the statute of limitations, so that it is legitimated now, under several acts of parliament." Hence it would appear, that non compos mentis had become a technical term in the English law, of fixed and determinate import, denoting a person entirely destitute or bereft of his memory and understanding. And as conveying this idea, it was clearly introduced into acts of legislation in Pennsylvania, while an English province; for instance, in the "act for the limitation of actions," passed the 27th of March, 1713. And since we became an independent state, it has been uniformly used by our legislature in all their acts, wherever it has been employed, in the same sense. This being the case, it cannot be doubted for a moment, but the words, non compotes mentis, were used by the framers of the constitution, for the purpose of giving the courts power to appoint committees, to take care of the persons and estates of such persons only, as should be found to be wholly void of memory and understanding, or in other words, of unsound mind, and not of such, as had, according to the finding of the inquest in this case "by reason of old age and long continued sickness, become so far deprived of reason and understanding, as to be wholly unfit and unable to manage his estate." The reason- able inference to be drawn from the finding of the jury here is, that Beaumont was not wholly deprived of his reason and under- standing ; that, on the contrary, he still retained a portion of it, but not sufficient, in their estimation, for the management of his estate, though enough, it would seem for the care of his person ; 1835.] OF PENNSYLVANIA. 56 (Case of John Beaumont. ) because *they have said nothing of his incompetency for that purpose ; and of course, the court would not have been warranted in appointing a committee to care of his person, as he was not found to be of unsound mind, or incapable himself of taking care of it. The finding of the jury is somewhat similar to that in Cr (miner's case, 12 Ves. 445, where they found that "he was so far debilitated in his mind, as to be incapable of the general management of his affairs ;" and Lord Chancellor Erskine said, in observing upon it, " how can I tell what is so far debilitated in his mind, as not to be equal to the general management of his affairs." He considered the finding too ambiguous, and therefore quashed the inquisition; though he was of opinion, that the evi- dence would have justified the jury in finding that the party was of unsound mind ; " so that he was not sufficient for the govern- ment of himself, his manors, &c.,"-all of which was found by a subsequent jury and held good. It is true, however, that the Court of Chancery in England, has of late gone beyond what Lord Hardwicke, sitting as Chancellor, thought was his proper limits ; and has applied commissions, not de lunatico enquirendo, however, which are uniformly applied to the case of all such as are considered non compos mentis but commissions in the nature of those of lunacy, to cases where there in such an imbecility of mind as renders a person incompetent to the management of his affairs, or liable to be imposed on. See 1 Wooddes. 411 ; Ridg- way v. Darwin, 8 Ves. 65, 66 ; Exparte Cranmer, 12 Ves. 447, and Mr. Belt's note to Lord Donegal's case, 2 Ves. 407, 408. But this latter description of persons must not be confounded with those who are non compotes mentis ; whose voluntary deeds will be set aside at once upon its being shown that they were such at the time of executing them ; but in regard to the like deeds of the former, it is only when connected with circumstances tending to show that they were obtained by fraud, that they will be set aside, Osmond v. Fitzroy, 3 P. Williams, 130, 131 ; G-riffin v. De Veulle, 3 Wooddes. App. 16. So in Wiglitmanv. Wightman, 4 Johns. Ch. Rep. 343, Chancellor Kent said, that idiots and lunatics are incapable of entering into the matrimonial contract ; and that such marriages are ipso facto void, is a proposition too plain to be questioned. In short, the distinction between those who are styled non compotes mentis in law, and those who labor under extreme imbecility of mind is very clearly maintained throughout every part of it : and in order to prevent confusion it may be important, perhaps, that this distinction should con- tinue to be observed. And until the legislature shall authorize the courts of this state to entertain a proceeding, with a view to deprive the latter description of persons of all control and power over their estates, they cannot take cognizance of it. The exer- 56 SUPREME COURT [Dec. Term, (Klinker' s Appeal.) cise of such authority over the rights of the citizens, is of too .-^e-, much moment to be claimed by courts, unless * given *- -I expressly by the constitution or some act of the legisla- ture, which has not been done as yet. The judgment is affirmed. SERGEANT, J. having been of counsel with one of the parties, did not sit in the case. Judgment affirmed. Modified, 6 Watts & Sergeant, 461 ; 9 P. F. Smith, 331. [PHILADELPHIA, JANUARY 12, 1836.] KLINKER'S APPEAL. A. executed a sealed note, l>y which he promised to pay to B. a certain sum, when C. (an infant) should arrive at the age of 21 years, with law- ful interest to be paid annually, "in trust for the use of the said C"." Held, that the lien of this debt was gone, upon the expiration of seven years from the death of A. ; a copy of the instrument not having been filed, according to the provisions of the act of 1797. Tins was an appeal from a decree of the Court of Common Pleas of Northampton County, distributing the proceeds of sale of certain real estate, sold by virtue of a writ of venditioni ex- jwnas, at the suit of Abraham Jacoby, administrator of the goods, &c., of Elias Klinker, deceased, against Jacob Klinker. The material facts were as follows : On the 18th of March, 1811, John Klinker executed a sealed note, or single bill, bearing that date, whereby he promised to pay to John William*, or order, the sum of of 111. 2. Qd., law- ful money of the United States, " when Ja>-ob Klinker, the son of Catharine I larpst, tthall arrive at 21 years of age, with lawful interest to be paid annually, in trust for the use of the said Jacob K linker, son of the said Catharine Harpst aforesaid, for value received." John Klinker, the maker of the said instrument, died between the months of January and April, 1812, having, on the 3d of January, 1812, made his last will and testament, of Avhich he ap- pointed his sons, Jnhn and Jawb, the executors. The executors filed an inventory of the personal estate of the testator on the oth of May, 1812 ; but no account was settled by them. Jacob Klinker, the son of Catharine Harpst, and* the person for whose benefit the said bill or note was executed, attained the .age of 21 years, on the 21st of June, 1830. On the 3d of Sep- 1835.] OF PENNSYLVANIA. 57 (Klinker' s Appeal.) tember, 1830, he entered in the office of the prothonotary of the Court of Common Pleas of Northampton County, his claim against the estate of John Klinker, deceased, as follows : " Jacob Klinker, otherwise called Jacob Harpst, hereby files in the office of the prothonotary of Northampton County, the fol- lowing *copy of a bill single, due by John Klinker, late r*co-i of Hamilton township, in the County of Northampton, * deceased, to him the said Jacob, in pursuance of the act of assem- bly, passed the 4th day of April, 1797, entitled ' an act supple- mentary to the act directing the descent of intestate real estates, this is to say:" [Here follows a copy of the bill.] " The interest on this bill single, has been paid up to the 29th of September, 1821, and the said Jacob Klinker, otherwise called Jacop Harpst, avers that he only attained the age of 21 years, on the 21st day of June last past, and that at the time of the decease of the said John Klinker, he was a minor under the age of 21 years." The real estate of John Klinker, the drawer of the bill, was devised to his children ; who made partition thereof; and a judg- ment having been obtained against one of them, his part or share was sold by the sheriff; and the proceeds having been brought into court, Jacob Klinker, or Harpst, claimed to be paid the amount of the said bill, on the ground that it was a lien on the estate of the drawer, and for that reason entitled to a preference over the debts of the son. The court below decided that the lien of this debt was gone under the act of 1797 ; and thereupon Jacob Klinker appealed to this court. Porter, for the appellant. The act of 1797, which limits the lien of debts of deceased persons to seven years after the death of the debtor, unless an action be commenced within the said period, or a copy of any bond, &c., not payable within the said period, be filed Avithin the said period in the prothonotary's office, contains a proviso that " a debt due and owing to a person who at the time of the decease of such debtor, is a feme covert, in his or her minority, &c. shall remain a lien on the said lands and tenements, (notwithstanding the said term be expired,) until four years after disco verture, or such person shall have arrived at the age of twenty-one years." The question is, whether the appellant is not entitled to the benefit of this saving clause. The pervading and paramount principle of the law of Pennsylvania is, that lands are liable for the payment of the debts of the owner, during his life and after his death. The act of 1797 was in restraint of the general rule, and the proviso throws it open as respects the 58 SUPREME COURT [Dee. Term, (Klinker' s Appeal.) classes of persons there mentioned. It is to be remarked that the preamble of the act speaks of " bona fide purchasers" Here, there are no purchasers to be injured. The contest is between the creditors of the heir and the creditors of the ancestor. It is said that there is a trustee appointed by the instrument, and that he might have sued during the minority of the appel- lant. But this is more like the case of a guardian ; and it has j-^rq-i *never been held that the appointment of a guardian for J an infant caused the statute to run against him. The same remark may be made of the committee of a person non com- pos mentis. So of the case of married women. Here the debt was " due and owing," in the words of the acts of assembly, to the child, not to the trustee. Mr. Porter cited Graff v. Smith, (1 Ball. 481 ;) Morris' Lessee v. Smith, (1 Yeates/238;) Han- num v. Spear, (Id. 458;) Jackson v. Sears, (10 Johns. Rep. 435;) Rogers v. Cruger, (7 Johns. Rep. 557 ;) Shepherd v. M l Evers, (4 Johns. Ch. Rep. 136 ;) Carrick v. Errington, (9 Mod. 33 ;) Moses v. Margatrayd, (1 Johns. Ch. Rep. 119 ;) Murray v. Bal- Im, (Id. 566 ;) Anderson v. Van Allen, (12 Johns. Rep. 343 ;) 7 Johns. Ch. Rep. 52 ; Schoales & Lefroy, 862 ; 15 Ves. 350. Hepburn, contra. This is a very plain case, if the decisions under analogous statutes are to be regarded. Here, there was an express trust, and a trustee named for the very purpose of collecting and receiving the money. No one but John Williams could have sued for this money. It is well settled in England, that the statute of limitations runs against an infant, if there be a trustee for him. Blanchard on Limitations, p. 82 ; Wilkinson on Limitations, p. 39 ; Wych v. East India Company, 3 Peere Williams, 309. The opinion of the court was delivered by HUSTON, J. John Klinker, in his lifetime, .was seized of the land, from the sale of which the money in dispute arose. While so seized, he made the following single bill, which, it would seem, was intended to have been signed also by his son Jacob : " We promise to pay, or cause to be paid, unto John Williams, or order, the just and full sum of seventeen pounds two shillings and six pence, lawful money of the United States, and that when Jacob Klinker, the son of Catherine Harpst, shall arrive at 21 years of age, with lawful interest to be paid annually, in trust for the use of the said Jacob Klinker, son .of the said Catherine Harpst aforesaid, for value received. Witness our hands and seals the 13th day of March, 1811. Witness, [SEAL.] JOHN KLINKER, JR." JOHN KLINKER. [SEAL.] 1835.] OF PENNSYLVANIA. 59 (Klinker's Appeal.) John Klinker made his will on the 5th of January, 1812, which was proved on the 8th of April, 1812, and appointed his sons John and Jacob executors. The executors filed an inventory on the 2d of May, 1812, hut have never settled any account. It also appears that he devised certain lands to be sold. He devised a certain *tract of land to be divided between his sons r+fin -i John and Jacob and Elias ; and it was divided in such L manner, that each got one hundred and thirty-two acres and some perches. The partition was perfected by conveyances, dated on the 4th of November, 1815. If necessary, I would consider each a purchaser from this date. On the 9th of November, 1815, Elias conveyed to Jacob his part, and on the same day took a mortgage from Jacob to secure 1200?., the balance unpaid of the purchase money, and a bond for the same money ; and clearly Jacob of this part was a purchaser. Abraham Jacoby, adminis- trator of Elias Klinker, brought suit on this bond, and sold a part of the land, which Elias had sold to Jacob. This suit was to No- vember Term, 1823. Judgment was obtained on this suit, and executions issued ; and a venditioni exponas, to January, 1825, sixty-two acres part of the land was sold for $399. A scire facias issued to revive this judgment, at April, 1829, and judgment was obtained at January Term, 1830 ; a fieri facais to August, levied on another part of the land, and sold on a ven- ditioni exponas, to November, 1830. The money produced by this sale was brought into court and claimed by the plaintiff in the execution, and by Jacob Klinker, the son of Catherine Harpst, who had come of age, and who, on the 3d of September, 1830, filed a claim in these words : "Jacob Klinker, otherwise called Jacob Harpst, files in the office of the prothonotary of Northampton County, the following copy of a bill single, due by John Klinker, late of Hamilton town- ship, in the County of Northampton, deceased, to him the said Jacob, in pursuance of the act of assembly, passed the 4th of April, 1797, entitled an act supplementary to the act directing the descent of intestate estates that is to say," (here follows a copy of the single bill before given.) The interest was paid until 1821, but it is not .stated by whom or to whom. An auditor appointed by the court reported the above facts, and also that on the 10th of April, 1816, ten acres eighty-three perches, part of the estate of John Klinker, deceased, were conveyed by the devisees of John Kimble. That in 1817, Jacob Klinker conveyed two several parcels of the one hundred and thirty-two acres allotted to him to two dif- ferent men amounting to above sixty acres. That the residue of the land allotted to Jacob was sold at sheriff's sale, on the different execution, before suit brought on 60 SUPREME COURT [Dec. Term, (Klinker's Appeal.) his bond to Elias, and the money paid over to the plaintiffs in said judgment and execution. That in 1817, Jacob conveyed small parcels of the land he bought from Elias, to four different persons, amounting in all, to about forty-three acres. That in 1818, John Klinker, the son, conveyed fifty-nine acres, one hundred and twenty perches, part of his share, to Jacob, who, r*fi11 ** n 1821, conveyed it to Joseph Klinker; and that in -1 1821, John and Jacob, as executors, conveyed to Joseph Klinker, two lots, each of ten acres, being part of the land directed in the will to be sold for the payment of the testator's debts. That in June, 1818, John Klinker, mortgaged the residue of the land allotted to him, to his mother, to secure her dower out of the whole estate. That the mortgage of the plaintiff in the execution was the old- est lien, and entitled to the money, unless the plaintiff's claim is valid. The court decided that the plaintiff in the execution was enti- tled to the money, and ordered the money to him. Jacob Klinker, or Harpst, claimed the money under the fourth section of the act of the 4th of April, 1797, which is as follows : "Whereas inconveniences may arise from debts of a deceased person remaining a lien on their lands and tenements an indefi- nite time after their decease, whereby bona fide purchasers may be injured, and titles become insecure, be it enacted, that no such debts, unless they be secured by mortgage, judgment, recogni- zance, or other record, shall remain a lien on such lands and tene- ments, longer than seven years after the decease of such debtor, unless an action for the recovery thereof be commenced and duly prosecuted against his or her heirs, executor, or administrators, within the said period of seven years, or a copy or particular written statement of any bond, covenant, debt or demand, where the same is not payable within the said seven years, shall be filed within the said period of seven years, in the office of the protho- notary of the county, where the lands lie : Provided ahvays, that a debt due to a person who at the time of the decease of the said debtor, is a, feme covert, in his or her minority, non compos mentis, in prison, or out of the limits of the United States, shall remain a lien on the said lands and tenements, (notwithstanding the said term be expired,) until four years after discoverture, or such per- son shall have attained the age of twenty-one years," &c. &c. Although the clause in favor of married women, infants, &c. &c. is now repealed, *yet we must decide what is the proper con- *Act 24th Feb., 1834, 24, Pur. Dig. 285, 82. 1835.] OF PENNSYLVANIA. 61 (Klinker's Appeal.) struction of it. It has been contended that this, being a statute of limitation, does not apply to trustees. True no statute of limitation applies to cases strictly between trustee and cestui que trust, at least while both parties act in that capacity, and have not denied it ; (Blanchard, 75, 6,) for the estate of the two, or the right of the two, as against the rest of the world, is one and the same ; though in some countries they are suable in different courts. But is trustee and cestui que trust suffer an adverse claimant to possess lands for twenty-one years, their right is gone. If a debt was due to a deceased person, who died after it was due and demandable, and his executor *or administrator suffer six r^o-i years to elapse, the statute is a good plea, though the ex- I ecutor or administrator is a trustee for creditors or heirs who may be infants. A distinction has been taken, that if a debt become payable after the death of the creditor, the statute does not run until administration is taken out, for there is no person to sue; (Blanchard, 106.) Admitting this to be so though I doubt its correctness, for if the next of kin do not administer, any other may, and I see no reason why a simple contract debt should be kept alive for ever, and- be recoverable after vouchers and witnesses were lost yet in this case there was a person to sue, or what was equivalent, file the claim agreeably to the direc- tions of the act. It was also urged, that the debt was really due to, and was the property of the present claimant, and not of Williams the trus- tee ; and that infants are favored in equity and law too. The other party reply, that secret liens are not favored. I don't like the phrase in legal proceedings. It has done some, perhaps much harm. The whole object and effect of statutes of limita- tions have been lost, or changed by some such phrases, and opinions founded on them. So much so, that in England they have by legislative enactment begun anew. These laws, like all others, are now in this country, construed agreeably to their ex- pression, when plain ; or if not explicit, according to their true meaning. They may occasion a loss of a just claim, but for one instance of this kind, they, in much greater proportion of cases, save from unjust claims. As to length of time, they are obliga- tory to the letter. A day saves or bars a claim because it is a legislative rule in a case which required legislative interference, and the rule must and does apply, whatever may be thought of the hardship of the case, or it becomes no rule at all. The law is so written to produce a general good, and has produced such results ; why should it not be so decided in every respect ? What effects will follow from the plaintiff's construction? An infant must come of age in twenty years but a married woman may live fifty years ; and a person may live and die out of the United 62 SUPREME COURT [Dec. Term, (Hellings v. Amey.) States, and his heirs so continue a century ; and if the law keeps a latent claim all this time, a lien on lands descended, devised, alienated, or sold, by process of law, why, we can't help it. But the law does in terms not extend to the case of a legal creditor of lawful age, and under no disability. Williams alone could sue at law, and would be barred, where there is a Court of Law or a Court of Chancery. Now it is settled, that where the right can be prosecuted and recovered at law, and is neglected until the statute is a bar, equity will not relieve ; (Blanchard, 80, 1.) We affirm the decision of the Court of Common Pleas because the case does not fall within the letter of the act because it does not fall under the decisions that the statute of limitation shall not run, when there in no person to sue for here was a person I~*fi31 w ^ ^ a( ^ au th r ity to receive the interest, *and to file the ' claim; and because, if we make the act apply to this case, it must also apply to cases of trustees for married women, and persons beyond sea; and we do not believe if we had the power of extending the act, it would be in conformity with its spirit, or for the benefit of the community, to give indefinite coun- tenance, continuance to a secret lien. Proceedings affirmed. Cited by Counsel, 2 Barr, 92. Cited by the Court, 6 Watts, 122. [PHILADELPHIA, JANUARY 14, 1836.] HELLINGS against AMEY. IN ERROR. 1. Where a defendant who had been sentenced by a Court of Quarter Ses- sions, upon a conviction of fornication and bastardy, to the payment of a certain gross sum to the mother of the child, and also to the payment to her of a weekly sum for a certain term, applied for and obtained a dis- charge of his person under the insolvent act, it was held that the mother might maintain an action of debt upon the sentence of the Quarter Ses- sions, to recover the amount ordered to be paid to her. 2. The defendant in such action having pleaded payment, with leave to give the special matters in evidence, it was held that the plaintiff was not bound to prove the averment in her declaration, that she had maintained and supported the child during the term, for which the defendant was liable to pay, by the sentence of the court. WRIT of error to the Court of Common Pleas of Bucks county. In the Court of Quarter Sessions for the county of Philadel- phia, in October, 1827, John Hellings, the plaintiff in error, was 1835.] OF PENNSYLVANIA. 63 (Hellings v. Amey.) convicted of fornication, and bastardy, and sentenced by the court to pay to the prosecutrix, Hannah Amey, the sum of fif- teen dollars for lying-in expenses, and seventy-five cents per week for the support of the child from its birth, until it should arrive at the age of seven years, and to give bonds to the guardi- ans of the poor in three hundred dollars, to make such payments, &c. On the 26th of June, 1828, John Hellings presented his petition to the Court of Common Pleas for the city and county of Philadelphia, praying for the benefit of the insolvent laws. Hannah Amey was the only creditor returned by the petitioner, who was discharged on the 8th of July following. To February Term, 1834, of the Court of Common Pleas of Bucks county, Hannah Amey instituted an action of debt against the same John Hellings, in which a declaration was filed, setting forth the sen- tence of the court of Quarter Sessions ; and the plaintiff averred that she had maintained and supported the child from the time of its birth, until its arrival at the age of seven years, and that the said sum of fifteen dollars for lying-in expenses, and the allow- ance of seventy-five cents per week, had not been paid to her by the defendant; whereby an action *had accrued, &c. The r*p^-i defendant pleaded nul tiel record and payment, upon which ' issue was joined. Upon the first plea the court gave judgment for the plaintiff; and the cause coming on for trial, on the plea of payment, at April Term, 1835, the plaintiff gave in evidence the record of the sentence of the Court of Quarter Sessions, and the petition of the defendant for the benefit of the Insolvent Laws. The counsel for the defendant then prayed the court to charge the jury that the action could not be sustained, and that if the action would lie, it was necessary for the plaintiff to prove the averments in the declaration respecting the maintenance of the child by her, during the term of seven years. The court, however, charged the jury upon these points in favor of the defendant, who excepted to the charge; and the jury having found for the plaintiff, the cause was removed to this court. Errors having been assigned upon these points, Mr. Ross for the plaintiff in error contended, 1. That an action did not lie upon a sentence of the Court of Quarter Sessions, in a case like the present ; the point having been expressly decided in Eby v. Burkholder, (17 Serg. & Rawle, 1.) 2. That the plaintiff was bound to prove the averments in the declaration ; in support of which he cited, Eoop v. Brubacker, 1 Rawle, 307. Mr. Porter, contra. VOL. 1. 5. 64 SUPREME COURT [Dec. Term, (Hellings t). Amey.) The opinion of the court was delivered by GIBSON, C. J. When it was determined in Eby v. Burkholder, that an order of maintenance could not be enforced by action, the allowance to the mother had acquired no quality of a debt. By subjecting a sentence for the payment of money to the operation of the insolvent laws, as an ordinary duty, the legislature have author- ized the party convict to treat it otherwise. By the seventeenth section of the general insolvent act, it is directed, that " any per- son who shall be in confinement by order of any court, until he restore to the owner any stolen goods or chattels, or pay the value thereof; and any person who shall be confined for the payment of any fine or for the payment of the costs of prosecution and for no other cause, shall be entitled to the benefit of this act." In its largest sense, the word fine includes the mulct for the mainten- ance of a bastard ; and the case is clearly within the equity of the act. By the succeeding section it is further directed that persons confined for fines or forfeitures, not separately exceeding the sum of fifteen dollars exclusive of the costs, be absolutely discharged by the sheriff at the expiration of thirty days; and consequently, without cession of goods. This section seems to operate as a statutory commutation and pardon ; but not so r^r-i the preceding one, which, by * putting the case of the J convict on the ordinary footing of insolvency, discharges but the person and leaves the duty still in force. By a discharge, then, under the insolvent laws, the remedy by commitment in execution is gone ; and by what other remedy than an action, can ' the duty be enforced against property subsequently acquired ? That the legislature intended that it should be so enforced, is in- ferrible from their intent to exonerate no more than the person ; and where the party convict procures such exoneration, the rem- edy by action results of necessity. In Eby v. Burkholder, the defendant had not been discharged ; and the nature of the duty being unchanged by the act of the defendant, there was no such necessity ; consequently the mother was not allowed to use the extraordinary means for which necessity gives occasion. It is entirely consistent with that case, therefore, to say, that in the circumstances of the present, recourse to an action was en- tirely proper.* The question put to the court on the effect of the proof, was also properly ruled. The plaintiff averred that she had maintained the bastard at her own charge during the en- tire period ; and to this the defendant pleaded payment ; which, by every rule, was an admission of the whole declaration, except the particular part of it put in issue. It is true the fact of pay- ment was pleaded, " with leave to give the special matters in evi- * To the contrary, 6 Hards, 116. 1835.] OF PENNSYLVANIA. 65 (Fritz v. Thomas.) dence," which by our practice makes way but for an equity where there is one ; but where there is none, the leave thus taken goes for nothing, and the plea has no more than its common law effect. But even where it is properly pleaded, it has not the properties of a general issue plea ; its office being to confess and avoid, by the introduction of the special matter relied upon. The burden of proving the issue, therefore, lay on the defendant, and the jury were rightly instructed that the failure was on his part. Judgment affirmed. Cited by Counsel, 6 Watts & Sergeant, 86. Cited by the Court, 1 Jones, 174 ; 12 Harris, 515. [* PHILADELPHIA, JANUARY 14, 1836.] f*661 FRITZ against THOMAS and Another. IN ERROR. An executor or administrator, sued, in his representative character, for a debt due by the decedent, may plead the statute of limitations as a bar to the action, although such executor or administrator may have made such an acknowledgment of the debt, as, in the case of a person sued for his own debt, would be sufficient to take the case out of the statute. UPON a writ of error to the Court of Common Pleas of the County of Montgomery, it appeared that Christian Fritz brought an action of assumpsit, in that court, to November Term, 1833, against Charles Thomas and Merchant Maulsby, administrators of the goods, &c., of George Fitzwater, deceased, to recover the amount of a promissory note for 71 dollars, dated the 30th day of December, A. D. 1818, drawn by the said George Fitzwater, in his life time, in favor of the said Christian Fritz. The dec- laration averred a promise by the intestate, in his life time, and also a promise by the administrators, after his death, to pay the amount of the said note. The defendants pleaded " non assump- sit, non assumpsit infra sex annos, actio non accredit infra sex annos, and payment;" and issue having been joined upon these pleas, the cause came on for trial upon the 26th of November, 1834. The plaintiff having proved the hand-writing of the intestate, offered the note in evidence, which was objected to by the defend- ant and rejected by the court ; who decided that the note being on its face barred by the statute of limitations, could not be ad- mitted as evidence of a debt, until proof of a promise to pay within six years was first given. The plaintiff then called Wil- liam Wright, a witness, who being sworn, testified as follows : 66 SUPREME COURT. [Dec. Term, (Fritz ti. Thomas. " I was present when Christian Fritz presented the note to Charles Thomas, in January, 1832. Mr. Fritz stated that he had a claim against the estate of George Fitzwater, to which Mr. Thomas replied, ' you have just come in time.' On reading the note Mr. Thomas said, ' it is too old, you should have collected it sooner.' Fritz said, owing to the removal of Mr. Fitzwater it was out of his power ; that he had sought after him but could not find him. On examining the note, Mr. Thomas calculated the in- terest upon it. Then stating to Mr. Fritz, ' if you can get the principal I suppose that will satisfy you without the interest.' Mr. Fritz replied, ' why not both, or, how is the estate likely to hold out ?' Mr. Thomas said it was likely to hold out so that there would be nothing left for the widow. Some conversation then took place which has escaped my memory, but the tenor of r*f"*i it was Mr. Thomas was endeavoring to get Mr. * Fritz to J abate the interest in favor of the widow, and Mr. Fritz en- deavoring to obtain Mr. Thomas' promise to pay both principal and interest ; at the close of this, Mr. Fritz said, ' if I take only the principal, I shall expect to get it without further trouble.' Mr. Thomas replied, ' I have not funds in hand to pay you but, the debt its a juat one, 1 will see my colleague and we will do ivhat we can for you. This I will do, I have a note here against one of your neighbors, which I will trade with you, and as you live near him you can trade it out with him ;' he then presented a note he held against Andrew Scott : the exact amount of Scott's note I do not recollect, but it was more than Fitzwater's. On Mr. Thomas presenting the note he said, ' he had not done as Mr. Fritz had done, he had kept the interest down.' Mr. Fritz re- plied, ' if I were Andrew Scott's administrator, as you are George Fitzwater's, I would trade. But Mr. Scott is an old man, who has been much embarrassed and is now doing better. If I were to do it, it might discourage him : I should not like to do it without saying something to him first.' Thomas then re- quested that he would see Scott concerning it ; and then stated he would also see his colleague concerning Fitzwater's note. Mr. Thomas read the note twice. Mr. Thomas and myself both made a calculation of the interest. The calculation of interest took place before he asked that it should be abated. Fritz said he would not agree to let the interest go into the general fund ; but, if reserved for the widow, he would like to have the pleasure of presenting it to her himself. This was when Thomas was en- deavoring to persuade him to give up the interest in favor of the widow. There was a difference between Scott's note and Fitz- water's note. Scott's was the largest. Thomas said if the trade took place, Fritz must pay the difference. This conversation was in Mr. Thomas' house, when we were just starting. At the 1835.] OF PENNSYLVANIA. 67 (Fritz v. Thomas.) wagon, Mr. Thomas again said, I will see my colleague and ' we will do what we can for you? Thomas made no remark before reading the note, except * you have just come in time.' All the rest was said after the note was read. Andrew Scott's note was, I think, in favor of Charles Thomas. I saw the note, it was a sealed note. I have seen the same note since that time." . On his cross-examination, the witness answered as follows : " I don't know which note was the oldest ; as to the original dates, the dates were not far apart. Scott had been sold out by the sheriff. I did not hear Thomas' say he considered Scott's note good for nothing. Mr. Fritz did not bring me along as a witness in the matter, to my knowledge. The reason I was with Mr. Fritz was, I had business with one of Mr. Thomas' neigh- bors, Moses Lukens. Mr. Fritz went with me there, before we went to Thomas'.. The family of Mr. Thomas, Moses Lukens, Mr. Fritz, myself and Mr. *Thomas, were present at Thomas' at r^n-i this conversation. Scott's note was not 100 dollars more ' than Fitzwater's. From conjecture I would say it was 20 dollars more. Can't say whether above or below. I do not remember that Thomas told Fritz, that if he would give him the difference, he might have both notes. There was no conversation between Mr. Fritz and myself on this subject afterwards, except that going home I told him I thought he would get the business settled' without difficulty. All the reply he made was, ' I don't know ; ' he made no remark about apprehending difficulty. In offering Scott's note, Thomas said, I have here a note of one of your neighbors, which I will trade with you for yours ; I can't be certain, but my impression is, Thomas went out of the room, to get Scott's note. Mr. Thomas did not say in my hearing, he considered Scott's note good for nothing. I did not state before the arbitrators that Mr. Thomas intimated he considered Scott's note good for nothing. I did not hear Mr. Thomas tell Mr. Fritz, he had better present the note before the auditors. I have no recollection of any thing being said at this interview about an audit. I have a recollection there was an audit upon Fitzwater's estate." On a re-examination, the witness testified further as follows : " Mr. Fritz stated at the first interview, that he must owe Scott near 30 dollars. Scott was a wheelwright; Fritz and Fitzwater lived eight or nine miles apart, at the date of the note. At the date of the note, Fritz lived in Warwick township, Bucks county, twenty-three miles from Philadelphia, and seventeen or eighteen from Norristown. The principal due on Fitzwater's note, as calculated by myself and Mr. Thomas, was 56 dollars principal, and interest 43 dollars and 68 cents, amounting to 99 dollars 68 cents : there was no difference between us as to the amount." 68 SUPREME COURT [Dec. Term, (Fritz v. Thomas.) And the plaintiff further to maintain the issue on his part, again called the said William Wright, who testified as follows : u At the time of the arbitration of this cause, the question was put by one of the arbitrators, ' Well, Mr. Thomas, you did promise to pay this note ? ' Mr. Thomas replied, ' Yes, with this note, and we will do it yet.' This last note was Mr. Scott's note and was there at the time. At the time the conversation took place at Mr. Thomas' house, I thought, and still think Scott was at that time able to pay the note, and was of property suffi- cient to pay it. I am not so well acquainted with him now." The note was then again offered in evidence, and objected to by the defendants' counsel ; and the court, being of opinion that the evidence was insufficient to take the case out of the statute of limitations, refused to admit it. No other evidence having T*fiQ1 ^ een e* ven on * tne P ar * f ^e Pontiff* the president of ' the court charged the jury as follows : " There is no evidence before the jury, upon which they can find a verdict for the plaintiff. The claim of the plaintiff appears by his declaration to be found upon a note, dated 30th Decem- ber, 1818, payable in twenty days after date. And upon its face, recovery is barred by the statute of limitations. The court decided that that note could not be given in evidence, unless proof of a new promise to pay within six years first given. At one time, the courts not only of Pennsylvania, but elsewhere, con- sidered almost any acknowledgment, however slight, of the ori- ginal debt, sufficient to take the case out of the statute, but of late years the statute has grown into favor ; and the courts have retraced their steps, and held it as awise and beneficial law. A simple acknowledgment that the debt was originally just, is not enough. It must go to the fact that it is still due, or be accom- panied with some proof of a clear and explicit promise to pay. If there be accompanying circumstances, which repel the pre- sumption of a promise or intention to pay ; if the expression be equivocal, vague, undeterminate, leading to no certain conclusion, but at most to probable inferences, which may affect different minds different ways ; it is not sufficient evidence of a new pro- mise, for the party to recover upon. In the case before you, the court consider the evidence offered of a new promise, as of this Character ; and have therefore not suffered the evidence of the or^^inal debt to be laid before you ; there is consequently no evi- denceNtefore you, upon which you can find a verdict for the plain- tiff ; anchnt must be given for the defendants." The jury ilmving found for the defendants, the record was re- moved into this nyirt by the plaintiff ; who assigned several errors which may be compvised into two. 1835.] Otf PENNSYLVANIA. 69 (Fritz v. Thomas.) 1. The refusal of the court below, to admit the note in evidence in the first instance. 2. The refusal of the court below, to allow the note to go to the jury, after the evidence of a new promise had been given. Mr. Sterigere, for the plaintiff in error, contended that the court was wrong in refusing to admit the note in evidence. The plaintiff had a right to read it to the jury. Its effect afterwards was another question. Upon this point he cited Hershey v. Her- shey, (8 Serg. & Rawle, 333 ;) Patton v. Ash, (7 Serg. & Rawle, 127 ;) Fisher v. Kean, (1 Watts, 278.) He then argued that there was sufficient proof of a new promise, to take the case out of the statute of limitations. 2 Penn. Practice, 81 ; M'-Growan v. M< <3W. Ingham.) may be certified to the Special Court, to be held in the said county, for trial." The court overruled the above plea, in reference to which, the president judge delivered the following opinion : " The ground of this request is, that the president judge has been concerned as counsel, " touching the same subject-matter" in a former suit, to wit, in the matter of the petition and appeal of the Library Company of Philadelphia, in this court, to Sep- tember term, 1829. " The act of assembly provides, that whenever the presiding judge has been concerned as counsel for either of the parties in any suit instituted' in the Court of Common Pleas, touching the ame subject-matter^ then such suit shall be subject to the juris- diction of a Special Court. The counsel for the Library Com- pany supposes that if the subject-matter be the same, the case is subject to the jurisdiction of the Special Court, although the parties may be different, and has drawn his plea with a view to such a case. I differ with him. I think the parties and subject- matter must be the same ; and therefore entertain jurisdiction of the cause, and overrule the plea. " I have heretofore been inclined to send to the Special Court all cases, wherein either party supposed I had been in any wise connected, either as to party, or subject-matter, or question ; but I am now disposed to confine the removal strictly to cases where F*771 ^ * 8 * m l u i re d t De done by the act of assembly. It is J now nearly five years since I was appointed president judge of this district ; and a considerable part of the business cer- tified to the Special Court remains undisposed of, and probably some of it will yet remain long undetermined. The removal of a case to that court, I therefore consider as an injury to one of the parties, which I have no right to inflict unless the law requires me to do so." To this opinion, exception was taken by the counsel of the Li- brary Company. In the course of the trial, the counsel of the plaintiff below, called as a witness, Jonathan -Ely, who testified as follows "I live in Solebury township, where this property is situated. I have been the assessor of that township, and am at this time. I was the assessor at the last triennial assessment in 1831. I was the assessor in 1830. Previous to the last triennial assessment, it was assessed separately, a portion of it was assessed to the tenants, and a part to the company ; in 1831, it was assessed to the tenants, the whole to Mr. Ingham, and Mr. Randolph. In 1828 to 1831, the valuation put upon that part belonging to the Loganian Library, was assessed at eight thousand eight hundred and sixty- two dollars. In 1831, the whole was assessed to Mr. Ingham and 1835.] OF PENNSYLVANIA. 77 (Philadelphia Library Company v. Ingham.) Mr. Randolph, and valued at $34080, on the 396 A., 120 P. In 1825, it was valued at 8730, In 1822, it was valued at 10611, In 1819, it was valued at the same, In 1816, it was valued at 11790, In 1815, it was valued at 4000." The counsel of the plaintiff helow, then propounded to the' wit- ness the following question : " Are you acquainted with the Lo- ganian interest in the premises ; and what value would you put upon it?" The question was objected to by the counsel for the Library Company, but the court overruled the objection, and exception was taken to their opinion. The witness then pro- ceeded as follows: "It would be a very difficult matter to say what it is worth, but in assessing, we put the bona fide value that it would sell for. I should suppose it would bring four thousand dollars the valuation in 1815. I have reason to be- lieve it would sell for four thousand dollars, if it was put up at market. I did not assess the property before 1831, at the tri- ennial assessment. There has been a barn built on it since my recollection. I heard Mr. Ingham say, he was willing to give four thousand dollars for it have had frequent conversations on the subject think that is a pretty good reason. From what I know of the property, independent of that, I should suppose it was *somewhere about the valuation. That is all the reason I r^o-i have for supposing it would bring four thousand dollars." *- The counsel for the plaintiff below, then called Dr. John Wil- son, who testified as follows : " It is a subject I have thought of, being agent for the Library Company for some years, and I have frequently talked with the members of that company, with respect to the sale of their interest in it. I have never fixed with them any valuation, although I have advised them to sell. I have been acquainted with what the tenants were willing to give Richard Randolph ; he informed me that they were willing to give four thousand dollars, including Samuel D. Ingham, and himself; he, Randolph, holds a part of it. I should have advised the Library Company to accept the four thousand dollars. It had been on my mind to advise them to accept it. I was agent for that company from 1817-18, till 1826. I should think that a fair valuation, as near as my judgment would establish a value. I do not know the amount of the rent; the property, exclusive of the mills, rented for six hnndred dollars, Ingham's part, in 1829-30. I have heard it said the paper mill rented for eleven hundred dollars a year. Randolph's property, until a year or two, was to the shares; the mill rented by Randolph, is for six hundred dollars a year ; the land is worked to the shares ; there was a large barn on Ingham's part, and a grist mill and oil mill 78 SUPREME COURT [Dn his payment of the fund to the trustee appointed by the Common Pleas. He admitted that he had in his hands, how- ever, the interest of seven months on the principal sum, which had accrued to the period of the death of Michael Detterly, and which he had tendered to John Swartz. 1835.] OF PENNSYLVANIA. 98 (Wimmer' s Appeal.) On the 13th of March, 1833, the Orphans' Court ordered Philip Wimmer to file an account of his trusteeship in the register's office of Bucks County, and he having refused compliance, the court, *upon the application of the petitioner, under IX. r*qq-i of the fifty-seventh section of the act of 29th March, 1832, I directed a reference to auditors to take proof of the facts, and to report an account against the defendant. On the 5th of June, 1833, the auditors reported an account, in which they charged Wimmer with one eleventh part of the estate of Michael Detterly, and gave him credit for the debts due by Margaret Swartz and her husband to her father ; the balance being as above stated, $1011 19. They also stated an interest account, finding a balance due by Wimmer to Margaret Swartz of $57 44. Both parties excepted to this report. The petitioner Swartz, on the ground, principally, of the debts due by the husband hav- ing been deducted from the wife's share of the estate ; and the defendant, because he was not accountable at all, the money never having been in his hands. On the 12th of November, 1834, the Orphans' Court, after ar- gument, set aside so much of the report of the auditors as credited the trustee with the sum of $511 54 ; and directed the trustee to be charged with that sum, and interest from the 22d of April, 1813. The defendant, Wimmer, having appealed to this court, assigned the following errors : 1. The court erred in decreeing that the sum of $511 54, with which the trustee is credited in the auditors' report, for bonds and notes inventoried against John Swartz, be struck off the credit side of the account, and that the executor be charged in the ac- count with the said sum of $511 54, with interest from the 22d of December, 1813. - 2. The court also erred in decreeing that Philip Wimmer, the surviving trustee, should account for the trust fund devised to the use of Margaret Swartz ; when the administrators of the deceased co-trustee admitted, in his answer to the citation, that the said trust fund was in his hands, and that the said Michael Detterly, Jr., his intestate, had received and held the said trust fund in his life time, and had always acted as trustee for the said Margaret Swartz, and when there was no allegation of insolvency on the part of the said Michael Detterly, Jr. 3. The court erred in refusing to compel the administrator of Michael Detterly, Jr., the trustee in whose hands the trust money had been placed, to file a settlement of his accounts of the said trust fund. 4. The court erred in compelling Philip Wimmer to file a set- 99 SUPREME COURT [Dec. Term, (Wimmer's Appeal.) tlement of his accounts as trustee of Margaret Swartz, when he had been previously discharged from the trust by the Court of Common Pleas. 5. The Orphans' Court had no jurisdiction of the matter ; but r*100l ^ e *P rocee dings on tne citation and settlement should -" have been in the Court of Common Pleas. Mr. Porter, for the appellant : 1. The Orphans' Court had no jurisdiction in the case. They had no power, until it was expressly given by the act of 1834, to compel payment of legacies. M i Cullough v. Montgomery, (7 Serg. & R. 31.) As soon as the executors settled their ac- counts in 1813, in the Orphans' Court, and those accounts were confirmed, their functions as executors ceased, and those of trus- tees commenced. Now, the Orphans' Court has never been sup- posed to possess jurisdiction over trustees, except in some special cases, where there are minors. (Act of 1713.) Here there was no minor, and the estate in their hands was not that of a decedent. The acts of 1818, 1823, 1825, &c., which give the common Pleas jurisdiction of trusts and over trustees, are general in their terms, and seem to include all cases of trust. These acts have been held to extend to executors. Morrow v. Brenizer, (2 Rawle, 183.) The act of 1832, relating to Orphans' Courts, did not go into operation until October, 1832, after the jurisdiction of the Common Pleas had attached though it does not appear that that act has made any alteration in the jurisdiction of the Orphans' Court, respecting trusts. 2. The court had no power to require a settlement by the ap- pellant, after he had been discharged by the Court of Common Pleas from his trust. The act of the 14th April, 1828, autho- rizes that court to discharge a trustee, either on his own applica- tion, or on the application of the cestui que trust. It provides for due notice to all parties interested, and gives an appeal to the party aggrieved. The proceedings, then, cannot be disturbed in this collateral way. Besides, it appears by the record, that Swartz actually participated in the proceedings in the Common Pleas, and ratified them by applying for a new trustee. 3. 4. The Orphans' Court was wrong in charging Wimmer with any part of the trust fund. They ought to have exhausted the estate of the other trustee, before they came upon the appellant, who was not liable in the first instance. Williams on Executors, 1112, 1118, 1119, 1125, &c. ; 2 Vernon, 299 ; 1 Peere Williams, 141 ; 4 Mudd. Ch. Rep. 191 ; Wentworth on Executors, 306 ; Sterret's Appeal, (2 Penn. Rep. 419 ;) Lanyford v. Grascayne, (11 Vesey, 335;) Gill v. The Attorney General, (Hard. 314). The settlement of a joint account does not prove that both exe- 1835.] OF PENNSYLVANIA. 100 (Wimmer's Appeal.) cutors received the money. In Brown's Appeal, (1 Dall. 312,) a distinction was taken between the creditors and legatees. One administrator cannot sue the other for money received hy him. Steinman v. Sanderson, (14 Serg. & R. 357 ;) Simon v. Al- bright, (12 Serg. & R. *429 ;) 2Bridgman's Digest, 650, ,-*-, M -. s. 214; 12 Mod. 560; Rex v. Bray, (Parker, 172.) 5. The court erred in charging the appellant with the amount of the hond. It was conceded that Swartz, the obligor, was insolvent. There the loss ought to have been borne by all the children. But upon the true construction of the will, this bond ought to have been deducted from the wife's share. Yoke v. Barnet, (1 Binn. 358,) shows the rule in case of an intestacy. This may be considered an advancement to the son-in-law, for the benefit of the daughter ; who could not in law execute a bond. Wentz v. Dehaven, (1 Serg. & R. 312,) shows that a loan to a son-in-law may be regarded as an advancement. There are many cases in which " grand children" have been held to be included in the words " children." Pemberton v. Parke, (5 Binn. 601 ;') G-ale v. Bennett, (Ambler, 681 ;) 3 Vesey, 421 ; 4 Vesey, 437, 693 ; 10 Vesey, 195 ; 2 Eden, 194. Mr. Porter also cited Tor- bert v. Twining, (1 Yeates, 432 ;) Jamieson v. Brady, (6 Serg. & R. 466 ;) Evans v. Knorr, 4 Rawle, 66 ;) Newlin v. Newlin, (1 Serg. & R. 275.) Mr. Randall, for the appellee : 1. The jurisdiction of the Orphans' Court appears clearly from the acts of 1713 and 1832. The powers given by the act of 1713, are confirmed by the constitution. In Richards v. yaker, (6 Serg. & R. 462,) the jurisdiction of the Orphans' Court is con- sidered to go beyond the estates of decedents. Guier v. Kelley, (2 Binn. 299;) M'Coy v. Porter, 17 Serg. & R. 60.) _At all events the act of 1832 gave jurisdiction. This is a remedial act, and" to be construed liberally ; and although the Common Pleas undertook to discharge Wimmer, before the act went into opera- tion, yet this does not remove his liability to account for money received previously. M'Farland v. Commissioners, c., (12 Serg. & R. 298.) 2, 3. This was a joint trust; and on the death of Detterly the duties and responsibilities survived to Wimmer. It is said that these trustees .divided the duties between them, one taking care of the trust for the daughter Magdalena, and the other of the trust for Margaret. There is no evidence of this beyond their answers. They are bound by their account as settled. M'Coy v. Porter, (15 Serg. & R. 571.) [GIBSON, C. J. That case has been reconsidered.] It is true that the decision was modified at a subsequent term, (17 Serg. & R. 59,) but the principle remains untouched. After the lapse of nineteen years the court will not 101 SUPREME COURT [Dec. Term, (Wimmer's Appeal.) permit the account to be reviewed. The distinction taken in the case of Brown's Appeal, (1 Dall. 312,) between creditors and legatees, is not supported by the authorities ; as is shown by the note to Mr. Wharton's edition of Dallas. F*1021 ' cour * was "g^ i n charging Wimmer with the amount of Swartz's bond. The receipt of the interest from 1813, relied upon on the other side, cannot bind Mrs. Swartz, who was then, and is yet, a feme covert. It was mani- festly the intention of the testator, that these legacies should be for the sole and separate use of his married daughters. The cases cited show, that it is of no importance what words are used, if the intention be apparent. Then, as to the suggestion that a son-in-law is to be included in the term children, it is going much further than any case has yet gone. There is no relationship as in the case of a grandchild. It has been held that a grandchild by marriage is not entitled to take, under the description of a child. 2 Williams on Executors, 725, 6. The opinion of the court was delivered by SERGEANT, J., who, after stating the material facts, proceeded thus : By the appellant's fifth exception, a question has been made as to the right of the Orphans' Court to call trustees to account, which it is proper first to consider ; for if that court had no juris- diction in the matter, it would be unnecessary to discuss the other exceptions. It becomes important to decide this point, because proceedings in the Orphans' Court against trustees, merely as such, have not been very frequent, and must now depend on the construction of the recent act of the 29th March, 1832, relating to Orphans' Courts. A reference to our early laws, shows that the beginnings of the Orphans' Court were very feeble ; but its powers have since been extended by the legislature, until they embrace a large and important sphere of jurisdiction. The first law of the province, which I have been able to discover, was passed in 1693. It enacted, that the justices of each respective County Court should sit twice in every year, to inspect and take care of the estates, usage, and employment of orphans ; which should be called the Orphans' Court, that care might be taken for those that are not able to take care of themselves. Another law of the same year required all executors, and guardians to persons under age, to give bond to the Court of Orphans, faith- fully to discharge their trust. It is probable, that both the name and jurisdiction of this court were borrowed from the Court of Orphans of the city of London, which had the care and guardian- ship of children of deceased citizens of London, in their minority, and could compel executors to file inventories, and give security for their estates. Priv. Lond. 324. It is from the same source that several of our other laws and usages derived their origin, 1835.] OF PENNSYLVANIA. 102 (Wimmer's Appeal.) such as foreign attachments, -feme-sole traders, married women privately examined, conveying their estates, with their hus- bands, by deed ; which practice afterwards pervaded this country *generally, and is lately established in England by stat- r *-|AQn ute. Priv. Lond. 70, 187 ; Hob. 225 ; 1 Cro. 699 ; 1 L Prest. Abs. Tit. 336. None of these were known to the common law ; but may be accounted for, when we recollect that many of the first colonists who accompanied William Penn, came from the city of London. In 1701, by the act for establishing courts of jurisdiction in the province, the Orphans' Court had power to award process, and cause to come before them all and every such person and persons as were, or should be, entrusted with, or in any ways accountable for any lands, tenements, goods, chattels or estate, belonging, or which should belong to any orphans, or persons under age, either as guardians, tutors, trustees, executors or administrators, and cause them to make and exhibit within a reasonable time, true and perfect inventories and accounts of the said estate, and to require and take bonds and securities of such guardians, trustees, tutors, executors and administrators for the legacies, portions, shares and dividends of estates, real and per- sonal, belonging to orphans and minors, as occasion shall require, &c. This act was repealed not long afterwards ; but in 1713, the court was revived, and its jurisdiction more precisely marked out, as well as extended, by an act, which remained in force from that time till 1832. It was declared a court of record ; and power was given to it to cause to come before it all persons who, as guardians, trustees, tutors, executors, administrators, or other- wise, should be entrusted with, or in any wise accountable for any lands, tenements, goods, chattels or estate, belonging to any orphan or person under age, and to cause them to make and ex- hibit inventories and accounts of the estate. They were also empowered to oblige the register general, or his deputies, to bring in duplicates of all bonds, accounts, &c., relating to such estate. By the third section, they could compel persons, having the care and trust of minors' estates, to give security, if like to prove insolvent, or neglecting to file inventories and accounts. By the fourth section, executors, guardians, or trustees might, by leave of the court, put out their minors' money at interest ; and in the eleventh section other powers over trustees for minors were given to the court. Various supplements to this act, and acts on other subjects, passed from time to time, greatly enlarged the power of the Orphans' Court. Most of the provisions of these acts have now been introduced into the several revised codes of laws, passed by the legislature since 1830. In the fourth section of the act of the 22d March, 1832, re- lating to Orphans' Courts, it is declared, that " the jurisdiction 103 SUPREME COURT [/>. Odenwclder.) Jacob Odenwelder , tn account with Michael Odenwelder indi- vidually. Dr. As per statement C. . , . . $2,583 66 Cr. As per do. . . . $ 33 07 Balance, . . . $2,550 60 $2,583 66 Jacob Odenwelder is indebted to Michael on account, $2,550 60 Half of balance due the firm from Michael, $ 921 16 Do. due Jacob from the firm, 480 33 Balance due from Jacob to Michael, . 1,149 11 $2,550 60 Balance, as above stated, . . $1,149 11 JEFFERSON K. HECKMAN, W. L. SEEKING, SAMUEL YOHE. October 16, 1833. Referees. * f*1101 *The statement A, referred to as containing the par- J ticulars of the account of Michael Odenwelder, with the firm of J. & M. Odenwelder, which was very voluminous, charged Michael with cash received from sundry persons, for bricks sold by the firm, and credited him with cash paid to the hands in the yard, and for articles fumished for the use of the yard during the partnership, and was exclusively a partnership ac- count. The statement B, which was referred to as containing the par- ticulars of the account of Jacob Odenwelder, with the firm of J. & M. Odenwelder, charged Jacob in the same manner, and cred- ited him with expenses, boarding hands, &c., hauling bricks from yard, casli paid for wood for the yard, &c. and was also exclu- sively a partnership account. The statement C. referred to as containing the account of Jacob Odenwelder with Michael Odenwelder, was exclusively a private account, and charged Jacob with merchandize got by him ancj his family, out of Michael's store, lottery tickets, cash paid him and his family, cash paid to other persons for Jacob &c., and credited him with cash received for him from sundry persons, prize tickets, in lotteries, &c. In this account, Jacob was charged with Mrs. Michael Odenwelder's account against his wife and family for mil- linery work, &c. done for them. The report of referees was filed on the 17th of October, 1888 ; and on the 19th of the same month, was read in open court, and judgment nisi thereon rendered, and leave given to file excep- 1835.] OF PENNSYLVANIA. 110 (Odenwelder v. Odenwelder. ) tions thereto, by the 2d day of November then next. On the 1st day of November, 1883, the defendant by his counsel filed several exceptions ; of which the following are the only ones, in the decision of which error was assigned. " first Exception. That the award does not cover all matters in variance between the parties in the action. " Second Exception. That the award does great injustice to the defendant, in introducing into the account and award in this action, the individual account of Michael Odenwelder against Jacob Odenwelder, and thus showing a balance due by him to the plaintiif ; when in fact, on the settlement of the partnership accounts, which alone were subject of the action and submission, the plaintiff would fall largely in debt. " Third Exception. That the referees erred in not stating a particular account of the profits and losses of the firm ; and in the situation of the accounts as stated by the referees, it is impossible to know whether the partnership were a profitable or losing concern to the parties." On the 2d day of February, 1834, the exceptions were dis- missed, and the report was confirmed, whereupon this writ of error was sued out. *In this court the following errors were assigned: r*111~| " First. That the court erred in dismissing the ex- ceptions, and confirming the report of the referees, there being on the face of the report plain error, and excess of jurisdiction. " Second. The court should have set aside the report, for reasons stated in the first exception, the first specification of the second exception, and the third exception." Mr. Brooke for the plaintiff in error. The question here is, have the referees stated such an account and made such a report, as auditors in account-render for whom they were substituted, are required to do. 1. They have not stated what the partnership effects were ; they should have set them forth with their valuation, and ordered a sale. ' Gow on Partnership, p. 3 ; Collyer on Partnership, p. 167. Segourney v. Mann, (7 Conn. Rep. 324.) [HUSTON, J. It has never been held that our courts possess all the powers of a Court of Chan- cery. Has a sale ever been decreed by a Court of Common Pleas, in a case of goods held in partnership?] In Geary v. Cunningham, (10 Serg & Rawle, 302,) tt was said by Gibson, J., that arbitrators in account-render, have powers as extensive as those of a chancellor, and may make a special award in the nature of a decree, adapted to the particular circumstances of the case. [HUSTON, J. Have you any authority to show that a sale may be ordered by auditors or arbitrators ?] I admit that VOL. i. 8. Ill SUPREME COURT {Dec. Term, (Odenwelder c. Odenwelder. ) there is no express authority ; but the language of the court on several occasions, seems to countenance the idea that they pos- sess it. This award is not sufficiently final. Caldwcll on Arbi- trations, p. 214, referring to 16 East, 58 ; 7 Mod. 849 ; s. c. Willes, 268. 2d. The referees have adjudicated upon matters which were not the subject of an action of account-render and which were never intended to be submitted to them. [ROGERS, J . The submission is of " all matters in variance between the parties in this suit," which certainly gave the referees cogni- zance of all subjects of difference.] This was not our intention. [ROGERS, J. I take it that you are bound by the entry on the record, whatever your intentions may have been.] The court will look at the nature of the action and judge of the meaning and intention of the submission by that. Could referees in ac- count-render, take cognizance of a question of title to real estate, or damages in slander? 3. The referees ought to have stated a particular account of the profit or losses of the partnership. This is important for many purposes ; but the award is silent in respect to it. Mr. Porter, for the defendant in error, cited Kline v. Guthart, (2 Penn. Rep. 490,) that the objections to the award could not F*1191 k * taken in a Court of Error. The court declined hearing him on the exceptions to the award. Mr. Tilyhmam, for the plaintiff in error contended, that where the objections to the award appeared on the face of it, this court would not refuse to take cognizance of the case. In Soxman v. Soxman, (3 Penn. Rep. 44,) this court entertained a writ of error upon an award, and reversed the judgment. [GiBSON. C. J. JSo doubt it may be so, for errors appearing on the face of the award.] Here, we say the errors are apparent. It is said, that we agreed to submit all matters in variance " between the parties." The word parties, must be taken to refer to the action of account-render, and to be limited by the scope of that action. The act of 30th March, 1821, requires an account to be stated. There can be but one action of ac- count-render for the same period of time ; yet this award leaves open matters for another action. PER CURIAM. There is no weight in any of the exceptions taken in this case. The parties selected their tribunal ; and if the terms of the submission are larger than was contemplated by the plaintiff in error, he should have applied to the Court of Common Pleas to correct the supposed mistake. Certainly, we cannot enter into that question here. The report of the referees 1835.] OF PENNSYLVANIA. 112 (Bailey v. King.) appear to be sufficiently certain and final. If they have not clone with the partnership effects what the plaintiff in error desires, it is because the power to order a sale, is not possessed, at present, by any legal tribunal of this commonwealth. Judgment affirmed. Cited by Counsel, 7 Watts, 359. [* PHILADELPHIA, JANUARY 22, 1838.] [*118] BAILEY against KING. IN ERROR. An apprentice cannot maintain an action against his master to recover com- pensation for extra work, done by him for the latter, during the term of the apprenticeship : although the work was done upon the express prom- ise of the master to pay for it. ERROR to the Court of Common Pleas for the City and County of Philadelphia, to remove the record of an action in which Robert King, by his next friend, Hermanus King, was plaintiff, and Lydia R. Bailey was defendant. The action was originally instituted before an alderman, who gave judgment in favor of the plaintiff, from which the defendant appealed to the Court of Common Pleas. The plaintiff having filed a declaration in indebitatus assumpsit for work and labor done, the defendant pleaded non assumpsit and payment, &c. ; and the cause came on for trial on the 6th of February, 1834. It appeared in evidence, that Robert King, the plaintiff, was an indented apprentice of Mrs. Bailey, the defendant, to learn the art and business of printing; that the defendant had been in the habit of making a pecuniary allowance to her apprentices for all the work done by them beyond a certain amount: that she had promised the plaintiff to give him a certain sum per week during his good behavior ; and that she had withheld the promised remuneration, on the ground that he had misbehaved himself. The judge, in his charge to the jury, said, "the master of an apprentice is entitled to those earnings which flow from the ordin- ary occupation and industry of the apprentice, in the way of his business. But if the master promise that in consideration of the apprentice devoting extra time, or performing extraordinary ser- vices, which do not interfere with the profits to which the master 113 SUPREME COURT [Dec. Term, (Bailey r. King.) may be legitimately entitled, he will pay the apprentice for such over or extra service, such promise will be binding on the master, and the apprentice may maintain an action for the breach of it; but the promise must be express, and the master may annex such conditions as he may think proper, and revoke the agreement, upon notice to the apprentice. If, therefore, you believe that the defendant made an unconditional promise to pay the plaintiff for his extra services, and are satisfied that he performed such service, your verdict should be for the plaintiff, for such amount as he has proved to be due to him under the agreement. But, it is alleged by the defendant, that if any agreement was made, it was on condition that the plaintiff should behave himself well. Such a condition would not only be legal, but laudable ; and if r*1141 Broken by the apprentice, *he would forfeit his right to - recover ; though the master should not be permitted, for any slight breach of decorum, to claim a forfeiture for consider- able past services. But we cannot agree with the counsel for the plaintiff, that staying out all night contrary to the express direc- tion of the master, and other charges alleged against the plaintiff, are of so trifling a nature, as, if proved, not to incur a forfeiture. The master is guardian of the morals of his apprentice, and is bound to watch over them as he would over those of his children. If, therefore, you believe the agreement was a conditional one, and the condition was not performed by the apprentice, the de- fendant was right in withholding payment, and the plaintiff should not recover." The plaintiff's counsel excepted to this charge ; and having re- moved the record to this court, assigned for error: 1. That the judge erred in stating to the jury that this action could be maintained against the defendant ; she being the mistress, under an indenture of apprenticeship, of the plaintiff below. 2. That the judge erred in admitting in evidence the memoran- dum book of the plaintiff below, as a book of original entries, to prove work and labor done by him. The first point, only, was insisted upon in the argument. Mr. OwenSj for the plaintiff in error. This is an action brought by an apprentice, during the continuance of the apprenticeship, against his master, upon an alleged promise to pay for overwork. The case is of the first impression, and is sanctioned .neither by reason nor authority. He cited Abbott on Shipping, p. 439, 440; Peake'sN. P. C. 72. Mr. H. ffubbell, contra, argued that there Avas nothing in the relation between master and apprentice under our laws, which forbade a contract like this. There is a distinction between the 1835.] OF PENNSYLVANIA. 114 (Bailey v. King.) case of an apprentice and that of a servant. Altemus v. Ely, (3 Rawle, 305.) The legal existence of the apprentice is not suspended as in case of a, feme covert. The indenture of appren- ticeship binds both parties, in respect to the covenants contained in it ; but beyond that, it leaves them free agents. He also cited Tlie Commonwealth v. Vanlear, (1 Serg. & R. 1) ; Mason v. The Ship Blaireau, (2 Cranch, 270.) The opinion ttf the court Avas delivered by GIBSON, C. J. It is conceded that extra-work by an appren- tice, is not a consideration to raise an implied promise ; but it is said to be sufficient to support an express one. But if the master be *chargeable at all, why not on a common count, as in p^- ^ ?-. ordinary cases of work and labor done ? It may per- L haps be, that without an agreement to define the portion of the work which belongs to the master by force of the indentures, there could be no such thing as extra work. It is certain that an apprentice stands not on the ordinary footing of a servant; but for that very reason it becomes a question of grave concern, whether the enforcement of such an agreement, by legal means, be not forbidden by considerations of policy. In many respects, the master is in the place of a parent. He is treated as such in the statutes to prevent the clandestine marriage of minors ; and his relation to the apprentice, if not strictly parental, is at least pupillary. Now these promises are but incitements to industry, and those virtues which are ever found in its train. By the proofs in the cause, it appears that the conditions, by the obser- vance of which the reward was to be gained, were not merely the performance of additional labor, but also regular attendance at church, and the keeping of regular hours at home matters intended to benefit, not the mistress, for she was to pay for the increase of production, but the apprentice himself, in the preser- vation of his morals, and the improvement of his professional skill. Can it be that these observances may be made the founda- tion of a legal demand ? Declare them to be subjects of judicial cqgnizance, and all inducements to propose them will cease. No schoolmaster, tutor, or disciplinarian, in whatever profession or pursuit, will recur to premiums for diligence, at the peril of a lawsuit. From the very nature of a premium, the proposer of it is to be the arbiter and awarder of it, where another is not desig- nated. Will it be credited, that the defendant would have held out this salutary incentive to employment, during hours that might have otherwise been given to vicious indulgence, had she thought she was contracting a legal obligation ? Had she done so, she would, at the same moment, have ceased to be the mis- tress of her shop. The case of Mason v. The Ship Blaireau, 2 115 SUPREME COURT [Dec. Term, (Ingham v. Snyder.) Cranch, 270, is pressed upon us to show that the master has not a right to the extraordinary earnings of his apprentice ; which, however, were explained there, to he such as are produced by his labor when not employed in his master's service. We have a very different case. Besides, the question had regard to the rights of the apprentice as regulated by the indentures, and not to the validity of a collateral promise, drawn into question by considra- tions of policy. We are entirely satisfied that, not only pnblic expedience, but justice between the parties, forbids it to be made the foundation of an action Judgment reversed. [*116] ['PHILADELPHIA, JANUARY 22, 1836.] INGHAM against SNYDER. APPEAL. 1. A fieri facias having been issued and levied on personal property, the plaintiff issued another writ of fieri facias and delivered it to the sheriff, but caused it to be withdrawn before any proceedings were had under it. Held, that this was not an abandonment of the preceding levy. 2. It seems, that the intervention of a term, between the teste and return of judicial process, is not an irregularity. Tins was an appeal by Samuel Yardley, from a decree of the Court of Common Pleas of Bucks County, in the distribution of the proceeds of certain personal property, sold by virtue of a writ of venditioni exponas, in a suit wherein Samuel D. Ingham and John II. Ingham were the plaintiffs, and M. H. Snyder was defendant. In the court below there were three claimants of the fund, viz.: S. D. and John II. Ingham, the above named plaintiffs, Samuel Yardley, Jr., the appellant, and Stephen Brock, another execu- tion creditor. 1. Samuel D. Ingham and John II . Ingham entered judgment against the defendant, M. II. Snyder, on a bond with warrant of attorney, dated February 12th, 1834, in the penal sum of $723 68, conditioned for the payment of $361 84. The following execu- tions were issued upon this judgment: February 12th, 1835. Fieri facias issued to April term. Real debt $361 84. Interest from February 12th, 1834. Sheriff's return "stayed by order of plaintiff's attorney." Alias fieri 1835.] OF PENNSYLVANIA. 116 (Ingham v. Snyder.) facias issued April 28th, to Septemher term, 1834, No. 1 ; which was returned, "stayed by order of plaintiff's attorney." Pluries fieri facias issued September 8th, 1834, to December term, 1834 upon which the sheriff originally returned, " Rec'd $15 on account, and levied upon goods as per inventory, upon file in the sheriff's office, and stayed by plaintiff's attorney." This return was afterwards, on motion, amended so as to read, " Rec'd $15 on account, and levied upon goods as per inventory annexed." The inventory annexed, exhibited household furniture and print- ing materials. The affidavit filed by the sheriff, upon his application to amend the return of the writ, was as follows : " William Field, sheriff, being duly affirmed according to law, deposes and says, that he had no orders to stay the above execu- tion, *unless the defendant paid the interest due upon r*-M7T the judgment, under which the above execution issued, and also obtained from Stephen Brock, another execution creditor of the defendants an agreement to waive any priority of lien he might obtain. And that the said defendant did not pay the said interest, or obtain the said agreement contrary to his promise, which was relied upon by the sheriff, and that he the said sheriff returned, 'levied upon goods as per inventory, on file in the sheriff's office, and stayed by plaintiff's attorney,' by mistake, as the facts did not warr.ant it ; but should have returned the execu- tion 'levied goods, as per inventory annexed.' Affirmed and subscribed in open court, December 12th, 1834. (Signed) WILLIAM FIELD, Sheriff. CHARLES H. MATHEWS, Proth'y." A second pluries fieri facias, issued to February term, 1835. This writ was endorsed by the sheriff, " came to hand December 8th, 1834, at seven o'clock." It was afterwards withdrawn from the sheriff by the plaintiff's attorney, and no proceedings had under it. The plaintiff then issued a venditioni exponas to sell goods, returnable to February term, 1835. The prcecipe was dated and filed on the 12th of December. There was no endorse- ment by the sheriff when the venditoni exponas came to hand ; the return was, "sold goods to the amount of $502 09 ;" and it was accompanied with an inventory of the goods levied upon. These were all the proceedings had upon Ingham's judgment, until the question arose as to the distribution of the assets in the sheriff's hands. 2. On the 8th of December, 1834, Samuel Yardley, Jr., en- tered judgment against the same defendant, on a note dated the 1st day of January, 1834 for the sum of $215 56. On this judgment, a fieri facias issued the same day to February term, 117 SUPREME COURT [Dec. Term, (Ingham v. Snyder.) 1835. This writ was endorsed " came to hand December 8th, at seven o'clock, twenty-five minutes, A. M. ;" and the return made hy the sheriff, was as follows : " sold goods upon venditioni exponas, No. 9, to this term, to the amount of $502 09." The writ was tested the 8th day of December, 1834 ; and annexed to it, as returned by the sheriff, was the following order from the plaintiff's attorney. SAMUEL YARDLEY, JR. ) vs. | Fi. Fa. to February term, 1834. M. H. SNYDER. ) WILLIAM FIELD, Esq., High Sheriff of Bucks County. SIR: I am instructed by the plaintiff to direct you to levy and sell, without any delay, under the above execution. (Signed) THO.MAS Ross, Plaintiff** Attorney. T*1 1 81 * Notice was also given by the plaintiff, Samuel Yard- J ley, Jr., of seventy-five dollars, rent due him from the defendant. 3. Stephen Brock, another creditor of the defendant, entered judgment against him December 9th, 1833$ upon a bond, in the penal sum of $1000, conditioned for the payment of $500. A fieri facias issued on this judgment on the 12th of February. 1834, to April term, 1834, which was returned, "stayed by order of the plaintiff's attorney." An alias fieri facias issued on the 28th of April, to September term, 1834 which was re- turned "stayed by order of plaintiff's attorney." A pluries fieri facias issued on the 8th of September, 1834, to December term, 1834, which was returned "levied upon goods upon a fieri facias, No. 2, to this term, and stayed by order of plaintiff's attorney." A second pluries fieri facias issued December 8th, 1834, No. 5, to February term, 1835. There was no endorse- ment of the time it came to the sheriff's hands. This writ was returned thus, " directed by plaintiff's attorney to do nothing with this writ until further orders." Upon the return of all the above-mentioned writs, to wit, at February term, 1835, the attorney of Samuel D. Ingham and John II. Ingham took a rule to show cause why they should not be permitted to take out of the sheriff's hands the amount of their execution. This rule was opposed both by Yardley and Brock ; who severally claimed to be .first paid out of the proceeds of sale, in the sheriff's hands. Rules were also entered to take depositions, by S. D. Ingham and John H. Ingham, and also by 1835.] OF PENNSYLVANIA. 118 (Inghain v. Snyder.) Samuel Yardley, Jr.; under which the following depositions were taken. (Deposition of M. H. Snyder. ,) "From information that Mr. Ingham's execution was to be pushed, I went to see Mr. Inghain, and he agreed that if I Avould pay the interest up to the time, and obtain, from Mr. Brock, an agreement that Mr. Ingham's execution should have the priority, and wouldn't take advantage of Mr. Ingham's execution, that he would stay his proceedings against me. I told him I thought I could do so. He then gave me a letter to Mr. Chapman as his attorney, the substance of which letter corresponded with the above arrangements. This was about ten days or two weeks be- fore the December term, 1834. I told Mr. Ingham that I thought I could make the arrangement. I came home and saw Mr. Field, and told him what passed between Mr. Ingham and myself. Field told me I must do it. I tried to get the money and the agreement, and I couldn't. I had part of the money, and still thought I could get the rest. I paid a part to Mr. Field, fifteen dollars, after I found I couldn't get the rest of the money, and couldn't make the arrangement with Mr. Brock. I did nothing more. I didn't tell Mr. Ingham, or his attorney, that I couldn't get the money ; but I told his attorney that I could. This was all the arrangement that *was made r*i i qn with the sheriff or plaintiff. I felt a good deal worried, and wanted to make the best arrangement I could. After the sheriff had made the levy, and was going to sell, I called on Mr. Chapman, (Mr. Ingham's attorney,) at his office, for the purpose of getting a stop put to it, if it could be done. He told me he couldn't make any arrangement, or do anything, because he was Mr. Ingham's attorney ; and that all that could be done was for me to pay the money, or the property must be sold ; and that if any arrangement was to be made, he must make it with Mr. Ing- ham. I then went to Mr. Ingham, and obtained the letter to Mr. Chapman, referred to in the examination in chief ; upon my informing Mr. Chapman that I didn't think it possible that I could be able to make the arrangement, Mr. Chapman then di- rected the sheriff to go on and sell. This was several days after I had seen Mr. Ingham. I called to see Mr. Field again, and he told me if I *ould pay the greater part of the money, give my note to him for the rest, and get the arrangement with Mr. Brock, he wouldn't sell. It was the expressed and decided intention of Mr. Ingham and his counsel, to sell the property, unless the arrangement was made. The interest amounted to about sixty O dollars. The first levy that was made, was under the execution, return- 119 SUPREME COURT [Dec. Term, (Ingbam t>. Snyder.) able to December term. The levy was made several weeks be- fore the return of the execution. The goods were not advertised until after the December term. I had an account against Mr. Ingham of about fifty dollars, all his account against me was embraced in the judgment ; the account I had against Mr. Ing- ham, and what money I paid, would have amounted to more than the interest due at the time I made the arrangement with Mr. Ingham. I said nothing to Mr. Ingham about my accounts. I forgot to mention it. . My understanding was, that I was to raise sixty odd dollars in money. Mr. Chapman told me that I ought to have my claim deducted from Mr. Ingham's account, when the judgment was given; and that if I had an account against Mr. Ingham, he had no doubt Mr. Ingham would allow it. A considerable part of my account accrued since the judg- ment was given; the sixty odd dollars were to be paid without any regard to my account. Sheriff Field depended upon my promise to him ; the fifteen were paid the Saturday or Sunday preceding the December Court. There were seventy-five dollars rent due from me to S. Yardley. I was to pay one hundred dollars per year. Nothing had been paid from the 1st of April, until the time of sale. The rent was payable quarterly. There was no written lease, it was only a private understanding between us, that the rent was payable quarterly. Mr. Yardley don't owe me any thing." f*1201 * Deposition of William Field, Sheriff" of Sucks County. " I don't recollect having any orders respecting the first fieri facias. I returned it stayed. The orders given to me respecting the fieri facias to December term, were to go on and sell. I then called on Mr. Snyder, and told him what he had to depend upon. This direction was given to me before Mr. Snyder went to Mr. Ingham. Mr. Chapman told me if Mr. Snyder raised a certain portion of the money, (about sixty dollars,) and got an agree- ment from Mr. Brock not to take advantage of delays, the pro- ceedings might be stayed. There was no time fixed in which this was to be done. I understood from Mr. Snyder that Brock would agree to make the arrangement, and that Mr. Snyder had forty dollars, and that he could make up the rest ; if not, the sheriff and Doctor Mathews would lend him the rest ; and I did not know that this arrangement could not be made until it was too late to sell. I depended upon the promise of Mr. Snyder. I understood from Mr. Chapman that unless this arrangement was made, I must go on and sell ; and the matter was left to me to see that it was done. Yardley's fieri facias, and Ingham's fieri facias to February 1835 ] OF PENNSYLVANIA. 120 (Ingham v. Snyder.) term, were placed in my hands, before court commenced, on the 8th of December. Mr. Ingham's fieri facias was placed in my hands by Mr. Purdy, the prothonotary's clerk. I never received any directions from Mr. Ingham's attorney, with regard to it but to levy on property, not levied upon by the fieri facias to December term. This was the same day the fieri facias issued ; and Mr. Chapman said the fieri facias to February term had issued contrary to his orders. This was upon his being informed that the said fieri facias was in my hands. The orders given to me to levy on other property, I think were given after Yardley's execution was placed in my hands. I received no orders respect- ing Ingham's fieri facias to February term, v until after Yardley's had issued. There was no intention ever expressed or manifested by Mr. Ingham or his attorney, to do otherwise than to sell the property ; but it was their desire to have the property sold. When I told Mr. Chapman that Mr. Snyder could not make the arrangement, he stated to me that I must go on and sell ; and if there was not time to sell before court, I must sell immediately after. This was a day or two before court On Saturday be- fore court I had hoped that Snyder would make the arrangement, and expected it. I informed Mr. Chapman that day, I had got a part, and Mr. Snyder was not to get the balance at that time. Mr. Chapman said I must take the responsibility on myself; his orders were to go on. I informed Mr. Chapman at that time that I had understood that Mr. Snyder had other property, not levied upon by the fieri facias to December term, to wit: a gig and har- ness. This property was at Mr. Pettits'. I did nothing with Mr. Ingham's fieri facias to February * term. I placed r*i 21~| it in Mr. Chapman's hands, inasmuch as I did nothing with it. Deposition of Joseph H. Purdy. " Mr. Chapman gave me a prcecipe for a fieri facias to Feb- ruary term, in the case of Ingham against Snyder, on Saturday afternoon preceding court. Mr. Chapman told me not to issue it until (these were his words ;) I didn't know what that meant, until it was afterwards explained, several days after ; and then pointed up. There were some persons present at the time. Upon Mr. Chapman being informed that the fieri facias of Ingham's had issued, and been put in the sheriff's hands, Mr. Chapman said that he had intended that it should not issue before the bell rang. I am Mr. Chapman's student, and also deputy prothono- tary. I delivered the execution to the sheriff, in the capacity of student, without Mr. Chapman's knowledge. I supposed, at the time I was doing it, that I was contributing to the interest of Mr. Chapman's client. I received no directions from Mr. 121 SUPREME COURT [Dec. Term, (Ingbam v. Snyder.) Chapman at any time, that the execution should not be issued till the bell rang. I never, at any time before, received any directions from Mr. Chapman, not to issue a writ before the ring- ing of the bell. Ingham's fieri facias to December term, was issued after the bell rang. I was never informed by Mr. Chap- man that it was necessary to wait till the ringing of the bell before execution should issue. I don't recollect of any instance in which Mr. Chapman ever directed an execution to issue before the ringing of the bell ; but there may have been. At the time Mr. Chapman told me not to issue the execution, and pointed up towards the cupola, I was very busy, and did not understand him. To Mr. Chapman's directions I replied ' yes ;' and nothing more was said." The case came up for argument at the adjourned Court, March 13th, 1835, and was held under advisement until June 5th, 1835 ; when the court ordered and decreed, that the rules taken by Samuel D. Ingham and John II. Ingham be made absolute. An appeal from this decree of the Common Pleas was entered under the act of 1827, by Samuel Yardley, Jr., one of the claimants who assigned for error : 1. That the court erred in directing the rule taken by Samuel D. Ingham and John II. Ingham, to be made absolute. 2. That the court erred in not decreeing that Samuel Yardley, Jr., should take out of the proceeds of the sheriffs sale, the amount of his execution. f*1 221 < i t? Yardley : 1. The record shows that the plaintiffs issued four writs of fieri facias ; two of which were stayed by order of his attor- ney. To the third, also, the sheriff made return that proceed- ings were stayed, although he was allowed to amend the return: and the fourth was recalled by the plaintiffs. These proceedings raise a presumption that the object was not to obtain satisfaction of the debt, but security for it. Now, it is settled by a series of decisions, that the lien of an execution upon personal property, is divested by an order to the sheriff to stay proceedings. The recent cases of The Commonwealth v. Strembeck, (3 Rawle, 341,) and ffickman v. Caldtvell, (4 Rawle, 376,) recognize the doctrine in its fullest extent. [GiBSON, C. J. The rule you have re- ferred to, applies only to cases in which there has been an actual levy. What evidence is there here of any levy, prior to that which took place under the pluries fieri facias ?~\ . The evidence shows, that directions were given to stay proceedings upon that writ, in case the defendant paid the interest due upon the judg- ment ; and the deposition of Snyder proves, that the interest was substantially paid. 1835.] OF PENNSYLVANIA. 122 (Ingliam . Snyder.) 2. Yardley's execution was regularly issued. It appears by the record, that it was issued on the. 8th of December, and came to the sheriff's hands on the same day, at twenty-five minutes after seven o'clock, A. M. The 8th of December was, it is true, the first day of December term, and the writ was returnable to February term ; but this does not render it invalid. In Cashee v. Wisner, (2 P. A. Browne, 245,) the District Court refused to set aside a writ which had been issued, on the morning of the first day of the term, upon which the defendant had been arrested on the same day, after the rising of the court. In England the rule is the same. Maud v. Bernard, (2 Burr. Rep., 812.) Non con- stat that the court was not in session at the time the writ issued. The rule, with respect to judicial writs, applies to mesne process. 'Baker v. Small, (4 Yeates, 187.) Mr. W. M. Meredith, for the defendant in error: 1. It never has been decided that the mere staying of pro- ceedings on a fieri facias, without a levy, prevents the issuing of a new execution. The second pluries fieri facias was the mis- take of a clerk ; and its immediate recall prevented any preju- dice to the plaintiff. Youny v. Taylor, (2 Binn. 230 ;) Burke v. M'Fall, (2 P. A. Browne, 143 ;) Alison v. Eeam, (3 Serg. & R. 142 ;) Bank of Pennsylvania v. Latshaw, (9 Serg. & R. 9 ;) Tidd, 390. 2. Yardley's execution was invalid, because a term was omitted. The sheriff's deposition proves, that the writ was de- livered to him before the sitting of the court ; which is the com- mencement of the *term. The point for which Baker r*i 31 v. Smith is cited, was not decided by the court. It is said by counsel arguendo. But this is not merely the case of a writ returnable over a term. It appears by the record, that the judgment was entered on the 8th of December, to December term. How could this take place, before the court had commenced its sitting ? If the judgment was regular, the execution must be ir- regular, since it certainly issued before the meeting of the court. PER CURIAM. The recall of the second pluries fieri facias, before action had on it, restored matters to the footing on which they stood before it was issued ; and prevented it from being, as it might otherwise have been, an abandonment of the preceding levy. It was intended not to be an actual abandonment, but to seize on 1 property not before seized a most unheard of pro- ceeding, and one whose consequences could have been averted but by relinquishing it at the threshold. By reason of the recall, too, it would be unnecessary to inquire whether the execution 123 SUPREME COURT [Dec. Term, (HartD. Hill.) were void, by reason of having been issued before the sitting of the court on the test day; but the point presents no difficulty; for, granting for the moment, that the term begins with the actual sitting of the court, still it is proper to say that, although it is otherwise in respect to mesne process, the intervention of a term between the teste and return of judicial process, is not even an ir- regularity, because it gives the defendant no day in court. The lien of the execution, therefore was not impaired. Decree affirmed. Cited by Counsel, 2 Miles, 294. [124*] [*PHILADELPHIA, JANUARY 22, 1836.] HART against HILL. IN ERROR. 1. A will executed in 1748, contained the following clause : "I give and devise unto my cousin J. T., son of my brother T. T., my messuage or tenement and tract of land where I dwell, bounded by the several courses along the line run to Darby creek ; thence down the said creek to the river ; thence by the river to the place of beginning to him and his heirs lawfully descending from his body, and in default of such heirs, to my right heirs, for ever." In a subsequent clause of the same will, was the following devise : "I give and devise to D. S. my fishing place, to him and his heirs for ever ; and likewise it is my will, that he shall have the help and use of my negroes, M. and H., one month in each year, in fishing time, till they respectively attain to thirty years of age. Held, that D. 8. did not acquire by this clause, any right in the soil on the bank of the river, but merely an easement, or so much use of the shore as was necessary for the purpose of the fishery. 2. Trespass will lie by the owner of a fishery, for a direct interruption in the exercise of his right. THIS was a writ of error to the Court of Common Pleas of the county of Delaware, to remove the record in an action of trespass quare clausum freyit, brought to November Term, 1832, by Mary Hart, against Jacob Hill. The plaintiff was the owner and possessor of four lots of land, situated if Tinicum township, Delaware county, lying on the margin of the river Delaware, containing altogether about twenty- four acres, and one hundred and thirty-two perches. The title to these lots was acquired as follows: Christopher Taylor, by his will, dated the 8th day of Decem- ber, 1748, proved the 24th of the same month, devised as fol- lows : " I give and devise unto my cousin, John Taylor, son of 1835.] OF PENNSYLVANIA. . 124 (Hartt). Hill.) my brother, Thomas Taylor, my messuage or tenement and tract of land where I dwell, bounded by the several courses along the line run to Darby creek ; thence down the said creek to the river ; thence by the river to the place of beginning ; likewise, I give and devise to him, twenty acres of land, being woodland, to be laid out as conveniently as may be by Plum creek, to him and his heirs lawfully descending from his body, and in default of such heirs to the right heirs of me the said Christopher for- ever." In the Common Pleas of Chester county, of August Term, 1761, John Taylor suffered a common recovery, whereby he barred the entail in the premises devised as above. The four lots of the plaintiff were included in the said devise, and were but a small portion of the land thereby given. John Taylor, the devisee, and Mary, his wife, by deed dated October *31, 1800, conveyed two of said lots to Benja- r* min Rue, by metes and bounds as follows, viz. : " One of them being a piece of marsh meadow, situate at the mouth of Darby creek, beginning at a stake in the bank next to the river Delaware, thence north two degrees east 33.3 perches to a stake at or in a drain ; thence along said drain north 79 degrees west 16 perches to a stake in the bank next to Darby creek ; thence along the same south 26 1 degrees west 17.2 perches to a stake ; thence south 13 degrees east 25 perches to a post in the corner of the river bank ; thence north 79 degrees east 17.1 perches to the place of beginning, containing three acres and a half more or less." " The other piece of land begins at a post by the river Dela- ware ; thence along a fence dividing the land rented by Thomas Vernon and Benjamin Rue, north 9 degrees west 36 perches to a stake ; thence south 81 degrees west 9 perches to a stoke ; thence south 9 degrees west 33 perches to the river Delaware ; thence up the same to the place of beginning, containing two acres, be the same more or less." Benjamin Rue, and Mary, his wife, by deed dated September 4th, 1804, conveyed, by the same metes and bounds, the said two lots to John Shreeve " together with a right and privilege of a sufficient cartway and passage along the foot of the bank, to and from the hereby granted meadow land." The title to one of the other two lots was thus derived. John Taylor, by his deed dated September 28th, 1801, conveyed to Benjamin Rue for life, and after his death to Lewis Rue and Catharine Rue in fee "All that certain piece or parcel of up- land and meadow ground, situate on Tinicum Island in Tinicum township, aforesaid, bounded and described as follows, to wit: beginning where Darby creek empties itself into the river Dela- 125 SUPREME COURT [Dec. Term, (Hartfl. Hill.) ware ; thence up the said river, according to the several courses thereof, about 81 perches ; thence still up the said river south 59J degrees, east 66J perches ; thence north 9J degrees, east 25.9 perches ; thence south 84 j degrees, east 20.15 perches ; thence north 4 degrees-, east 103.8 perches to the bar post ; thence north 68 degrees, west 23.1 perches to the spring head in the middle of the drain ; thence along the drain north 38 de- grees, west 15 perches ; thence south 42 degrees, west 26 perches to the middle of another drain, thence along the middle of the drain north 55 degrees, west 134 perches to the middle of the bank ; and thence the same course to Darby creek, and down the said creek the several courses thereof about 182 perches to the place of beginning, containing 52 acres of upland and 83J acres of meadow within bank, (excepting and always reserving out of this gift two certain pieces of land, one of marsh meadow at the mouth of Darby creek, containing three acres and a half more or less ; and the other of upland, containing two acres more or less, which the said John Taylor, and Mary, his wife, by indenture l"*1261 *dated 31st of October, 1800, granted unto the said J Benjamin Rue, in fee.)" Mannus Kain and others, being the surviving children of John Taylor, and Mary, his wife, then both deceased, by their joint deed dated December 3d, 1804, confirmed the title in the last described premises, by the same metes and bounds (barring two omissions) to the said Benjamin Rue, Lewis Rue, and Catharine Rue, as given by the deed of September 28, 1801, from John Taylor. Lewis Rue and wife, and Catharine Rue, by their Meed dated the 7th of May, 1805, conveyed in fee to the said Benjamin Rue, that part of the land previously conveyed to him for life, described and bounded as follows : " All that certain piece of upland marked in the said draft (re- ferring to the draft made by John Thompson,) No. 1, Benjamin Rue, situate on Tinicum Island aforesaid, part of the aforesaid upland and meadow ground, bounded and described as follows, to wit : beginning at a stone on the bank of the river Delaware, at a corner of a piece of land of John Shreeve thence extend- ing by the same north 9 degrees, east 27.8 perches to a stone, south 82 degrees, east 9 perches to a stone, south 9 degrees, west 5.7 perches to a corner of land of the heirs of John Taylor, deceased ; thence by the same south 84 degrees, east 20 perches to a corner ; thence north 4J degrees, east 104 perches to a bar post ; thence north 68 degrees, west about 18 perches to a cor- ner ; thence south 13 degrees, west 127.5 perches to a stone on the bank of the said river ; thence up the same on the several courses thereof 7 perches to the place of beginning, containing 17 acres and 12 perches." 1835.] OF PENNSYLVANIA. 126 (Hart*. Hill.) Benjamin Rue, and Mary, his wife, by deed dated March 13th, 1806, conveyed amongst other real estate, the said seventeen acres and twelve perches, to David Rose, by the following metes and bounds : " beginning, at low water mark of the river Delaware, at the corner of a piece of land of John Shreeve, thence extending by the same and a stone on the bank of the said river north 9 degrees, east 27.8 perches from the said stone on the bank to a stone ; thence south 82 degrees, east 9 perches to a stone ; thence south 9J degrees, west 5.7 perches to a corner of land of the heirs of John Taylor deceased ; thence by the same south 84 de- grees, east 20 perches to a corner ; thence north 4J degrees, east 104 perches to a bar post ; thence north 68 degrees, west about 18 perches to a corner of Lewis Rue's land ; thence by the same south 13 degrees, west 127.5 perches to a stone on the bank of the said river ; thence on the same course to low water mark ; thence up the same river on the several courses thereof 7 perches to the place of beginning, containing 17 acres and 12 perches." David Rose, and Ann, his wife, by deed dated March 12th, 1823, * conveyed the said 17 acres and 1-2 perches, by r*-j97i the same metes and bounds to Joshua Shreeve, in fee. The remaining lot, containing two acres and forty perches, was conveyed by Christiana Rue to Jeremiah Reeder, by deed dated April 10th, 1808, in fee, and said Jeremiah Reeder, by deed dated May 20th, 1808, conveyed the same to John Shreeve by the following metes and bounds : " beginning at a stake or stone on the river Delaware, corner of the said John Shreeve's other land; thence along a line of the same north 9J degrees, east 25.6 perches to a corner of land now or late of Benjamin Rue ; thence in a line of the same south 84 degrees, east 12.4 perches to a stone, corner of Edith Kain's lot ; thence in a line of the same south 5 degrees, west 32 perches to a stone standing on the bank of the river Delaware ; and thence down the said river 15.8 perches to the place of beginning." John Shreeve being thus the owner of said four lots, by his will dated February 5th, 1824, proved May 11, 1826, devised the same to the use of his daughter, Mary Hart, the plaintiff. Christopher Taylor, at the time of making his will, owned all the real estate bordering on the river Delaware, from Darby creek mouth, upwards, to the Lazaretto, a distance of about 1150 yards ; and after an interval of half a mile, his possessions con- tinued about one mile further. The plaintiff did not complain of any acts .of trespass on the lot at the mouth of Darby creek. The trespasses complained of consisted in the defendant's coming with his fishermen on the other three lots, which lie contiguous, beginning on the shore at VOL. i. 9 ' 127 SUPREME COURT - [Dec. Term, (Hart v. Hill.) the distance of 753 yards above the mouth of Darby creek, and extending up the river 176 yards. About the year 1800, John Shreeve built a house known as the Lazaretto tavern, and a wharf on his lot about 80 yards above his lower line. The acts complained of by the plaintiff were not denied by the defendant, but were justified by him on the ground of a right, deduced also from the will of said Christopher Taylor, in these words : " I give and devise unto the said David Sanderlin my fishing place, to him and his heirs for ever ; and likewise it is my will that he shall have the help and use of my negroes, Milford and Harry, one month in each year in fishing time, till they re- spectively attain to thirty years of age." The plaintiff's counsel requested the court to charge 1. That under the will of Christopher Taylor, given in evi- dence, dated 8th of December, 1748, John Taylor took an estate' of inheritance in the messuage, tenement, and tract of land, in which the testator then dwelt ; and that such inheritance ex- tended down to low water mark on the river Delaware. 2. That by the devise in the same will to David Sanderlin, of a fishing place, &c., a fee simple to the said David Sanderlin, did T*1 281 no ^ * P ass * n *^ e s ^ ^ e l an ^> between high and low L -" water mark, in the premises mentioned in the above de- vise to John Taylor. 3. That by such devise to David Sanderlin, he took but an easement, or right to use the said shore for the purpose of fishing. 4. That such easement extended only so far as the said fishing was used by Christopher Taylor, the testator. 5. That the devise being merely of an easement ; under the pleadings in this cause, no evidence of a right of fishery in the defendant, or those under whom he acts, to justify the acts com- plained of by the plaintiff, is properly before the jury. In answer to this request the court charged the jury as fol- lows: "The three first propositions embrace one general inquiry, and the sentiments of the court may as well be expressed in answer to them altogether : "The construction of the words of a will generally belong* to the court, and the intention of the testator must be gathered from the will itself; but to understand its provisions properly, may sometimes require a practical application of the words of the sub- ject matter the state of facts as they existed at the time the will was made, and the other provisions of the same will : Tlius, where one devises a plantation, bordering upon a navigable river, to A., the devisee would prima facie, and without further restriction, be 1835.] OF PENNSYLVANIA. 128 (Hart v. Hill.) entitled to hold down to the water edge at low water mark ; but if in the same will he should give all the land between high and low water mark, or all his shore, or all his wharves, or all his mud flats to another in fee simple, it would be hazardous in refer- ence to such a will to affirm that which in general would be true, viz.: 'that the boundary of A. would be the water's edge at low water mark : so by the simple devise to John Taylor of an estate of inheritance of his plantation, bounded by the river Delaware, his boundary would extend to low water mark : but when in the same will a devise is made to David Sanderlin of 'his fishing place to him, his heirs and assigns forever,' and when we con- sider the testator had no sort of dominion over any thing beyond low water mark, and that his ' fishing place,' if he had one, must necessarily be within that line, and a part of the land that would otherwise be included within John Taylor's devise it would be equally hazardous to say a fee simple did not pass to David San- derlin, but merely an easement over the land of John Taylor. Christopher Taylor owning and occtipying the land bounded by the river Delaware, like all other holders of land on our principal rivers, had no exclusive privilege or right to fish below low water mark opposite to his banks: that right remained in the state, and unless restrained by its laws, was common to every citizen: he could neither grant nor devise any thing except within low water mark : Every devise should be intended for the benefit of the devisee ; and we must ask ourselves what is *meant r-^ OQ-I by this devise of his fishing place in fee simple ? It had '- nothing to act upon : and we think it could be nothing else, (for he had no more to give,) than the exclusive right, which every owner of land has on the shore or margin of the river, to use his own property, for drawing seines and using other devices, by fix- ing capstans, &c. for catching fish: this is a valuable right and now-a-days is a species of property producing considerable rents. It is a right which may be conveyed or devised in fee simple, or for any lesser estate. The land itself, the strip between high and low water mark, which is the chief if not the only land, used for these purposes, may be granted or devised away, so that the owner of the adjoining fast land may not interfere with nor interrupt it by building wharves, walls or banks, or establishing ferries or otherwise. " The testator devised to his cousin, David Sanderlin, his ' fish- ing place' in fee simple ; and whether he meant the land on which whatever he could devise, could be exercised, the land between high and low water mark ; or only a right to be enjoyed upon and over the land devised to John Taylor, is the question ; his meaning may have been the one or the other ; but judging from the will itself and its provisions applied to the actual con- 129 SUPREME COURT. [Der. Term, (Hart v. Hill.) dition of the property ; observing that the land given to John Taylor has no other boundary on this side than by the river, and in the same will giving to David Sanderlin a fishing place in fee simple, which could be situate, from the evidence, in no other place but on the shore between the land given to John Taylor and low water mark, the court are of opinion that the devise to David Sanderlin gave him an estate in fee simple to the space between high and low water mark, from the mouth of Darby creek, as high up the river as the evidence shall satisfy the jury the upper end of the fishing place extended ; and thus passed an exclusive right to it, so that no one could build or encroach upon it, and thereby obstruct the right of Sanderlin and those claiming under him, in the fishing place in question. This also, from the evidence, seems to have been the understanding and construction adopted by John Taylor and those claiming under him in former times : For all the title deeds and drafts given in evidence, prior to the deed of Benjamin Rue and wife, to David Rose, dated 13th March, 1806, called for stones, posts, or land-marks by, at, or on the bank of the river ; and the deed just referred to, is the first one which ventures to pass by those land-marks, on the bank, and extend out to low water-mark, although there is evi. dence of the carters using that strip, as a, fishery, many years be- fore. "4th and 5th. The two last propositions are immaterial, accord- ing to the preceding views of the court, and cannot be answered in the affirmative. " The length of the fishing place from the mouth of Darby creek upwards, or what is its upper boundary, is a subject for the in- quiry of the jury upon the evidence." T*1 301 * ^^ e Pontiff' 8 counsel excepted to this charge ; and upon the removal of the record to this court, assigned several errors ; of which the only one insisted upon, was in the construction of the will. Mr. Dick, for the plaintiff in error : The main question is, did Sanderlin by the will of Christopher Taylor acquire a title to the o7 on the bank of the river, or a mere easement. The will gave John Taylor, a tract of land running " to Darby creek ; thence down the creek, to the river, and thence by the river to the place of beginning." Now, it can be shown by the cases, that the ownership of land on tide water, extends to low water mark. [GiBSON, C. J. You need not cite authorities for that position, it is well settled.] Our title then, being in the first instance complete, the devise to Sanderlin ought to be so construed as not to conflict with it. If the charge of the court below was right, the benefit to Taylor, whom the testator evidently regarded with 1835.] OF PENNSYLVANIA. 130 (Hart T. Hill.) favor, will be comparatively small ; and the testator will be made to appear extremely inconsistent in the several clauses ; whereas the construction contended for, on the part of the plaintiff in error, is in accordance M'ith an established maxim of law, in regard to all instruments, of giving every part a reasonable and consistent meaning. Swinburne, 553. The words " fishing place" do not, either in common or technical language imply any right in the soil. We contend that they are synonomous with " fishery" or " fishing pool." In Shrunk v. The Schuylkill Navigation Com- pany, (14 Serg. & K, 81,) C. J. Tilghm'an, cites the act of 9th March, 1796, (2 Sm. L. 370,) and llth April, 1793, (3 Sm. L. 115,) as speaking of "the proprietors of fisheries, and. the owners of fishing places or parts used as fisheries." The act of 9th March, 1771, sec. 2, (1 Sm. L. 315,) defines " what is to be deemed and held to be a pool or fishing place." So in the act of 16th March, 1807, (4 Sm. L. 380,) fishing place and pool are used as convertible terms. The will in question was made in 1748 ; and the general opinion then was, that every one had an exclusive right of fishing opposite his own shore. This idea was . not overthrown until the decision of Carson v. Blazer, in 1807, (2 Binn., 486,) and that was by a bare majority of the court. [RocGERS, J. In that case, the question was as to the right of fishing in the Susquehanna, where the tide did not ebb and flow ; but was such an opinion ever entertained in respect to the Dela- ware ?~\ William Penn, in his concessions, when he declared that "all rivers" should be "wholly enjoyed by the purchasers into whose lot they may fall," made no distinction between rivers which are navigable, and those which are not. If we suppose the right given by this will to Sanderlin, to be the same as that which, according to C. J. Tilghman, in Shrunk v. The Schuylkil Navi- gation Company, was common on the Schuylkill and other rivers, viz. an " exclusive right to use the margin of the river for the purpose of drawing a seine or practising any other device for the *catching of fish," but not a fee simple in the land ; r*jgj-] then all parts of the will may be made to harmonize. [HUSTON, J. There are several acts of Assembly which recog- nize this kind of right in respect to the Delaware. The act of 8th February, 1804; (4 Sm. L. 119,) for example, applies to the Delaware, the definition of " pool or fishing place," which the act of 1771 had enacted in reference to the Schuylkill.'] Mr. Tilghman, on the same side, cited 3 Kent's Comm. 329; Seymour v. Lord Courtenay, (5 Burr. 2814 ;) that a several fishery in England may exist independently of the right to the soil. 131 SUPREME COURT [Dee. Term, (Hart v. Hill.) Mr. Bell and Mr. Edwards for the defendant in error. The will shows that the testator entertained as much regard for his "cousin David Sanderlin," as for John Taylor. We contend that his intention was to give him his whole interest and property in the fishing station or place along the bank of the river. The terms of the gift, " to him and his heirs for ever," in the first place, furnish evidence of this intention. He would not so have granted a mere easement. It never was supposed that the owner of the land upon a navigable river had any right below low water mark. In 1748, the term fishery was understood to mean some right in the soil adjacent to the river. The deeds of the parties under whom the plaintiff claimed, show that they so understood it, since they are bounded by " stakes and stones on the bank of the river." [KENNEDY, J. This is universal in the country. Surveyors never go into the water for the purpose.] [HusxoN, J. It has often been decided that the owners of land hold to low water mark, notwithstanding such boundaries.] Then as to the question of the original right. In England, some jurists have been of the opinion, that by the grant of a several fishery, the soil passes. We contend that by a grant of "a fishing place," the right to the soil passes, unless it has been expressly reserved by the grantor. 3 Kent's' Com. 410 ; 2* Black Com. 39, 40 ; Margrave's Coke Litt. note, 181 ; Thomas' Co. Litt. 233, [199 ;] Plowden, 154, citing 40 Edw. III. ; 2 Salkeld, 637 ; F. N. B. 188 ; Angel on Water-courses, 10, 13, &c. The following acts of Assembly were also cited ; act of 23d February, 1809, (5 Sm. L. 5;) and the act of New Jersey, adopted by it: act of 23d March, 1819, (7 Sm. L. 194 ;) act of 27th March, 1820, (7 Sm. L. 295.) Mr. Tilykman, in reply was stopped by the* court; whose opinion was delivered by HUSTON, J. This case brings into the consideration of the court, a species of property, relating to which, we have not many decisions. Fisheries for shad and herring have, however, existed from a very early period ; and though we have no act of Assem- bly expressly creating the right, yet we have acts regulating, and in some respects, restraining it, of an early date. All those acts re ^ a ^ n g to *fisheries, seem to apply to fisheries for tak- ing shad ; or in the Delaware, perhaps, shad and herring. In fact, I do not know that the term fishery, either in any act of Assembly, or in common parlance in this state, is applied to any thing else than to a place where a seine or net is drawn, to take shad or herring ; or to a right to fish with a net or seine in a par- ticular part of a river, to take those fish ; though, perhaps, tho?e 1835.] OF PENNSYLVANIA. 132 (Hart v. Hill.) who have the exclusive right to a certain fishery, to take those fish, may also have the same kind of right to fish in the same place at all seasons, with a net, for any kind of fish ; hut I have not heard of any contest as to this matter. The right in ques- tion, arises under a will dated in 1748, and in 1752 was recog- nized in the Orphans' Court, on a petition to divide the real estate of Sanderlin, the devisee ; a well known kind of right, which being incapable of division, was allotted to one of five heirs, in fee, subject to a payment of an annual sum to each of the others ; and by conveyance or descent, became again the sole property of the plaintiff. Instead of going into the black letter books, to learn what was a fishery, and a free fishery, and a several fishery, I shall first examine our own acts of Assembly, and see what they have con- sidered it and regulated it; for those regulations may show and may determine its nature ; and if so, I am disposed to regard them, even though differing from old opinions in old feudal times. Many acts on many subjects were passed and in force for a time, which being re-enacted in a larger and fuller form, the prior acts became obsolete, and are not easily found, and in some instances not worth looking for. That fisheries were important in early times, is among other things proved by an act in 1761, (1 Smith's Laws, 231,) which in its preamble recites that large quantities of fry or brood of fish, and young fish are destroyed by dams, wiers, baskets, &c., &c., in the Delaware, Schuylkill, and Susquehanna, whereby the great quantities of fish which were formerly to be taken in said rivers, are greatly diminished ; and then prescribes severe penalties against such as violate its provisions. In 1771, (1 Sm. L. 314,) we find an act to regulate the fishery in the river Schuylkill. The first section relates to the practice which has grown up, of drawing several seines or nets in the same pool or fishing place, and prohibits it. The second section defines a pool ; " so much of said river as extends from one side or bank, to the other side or bank thereof; and from the place where seines or nets have been usually thrown in, to the place where they have been usually taken out, shall be deemed and held, and is hereby declared to be, a pool or fishing place." It is hardly necessary to remark, that it is so much of the river, &c. which is the fishing place, and not so much of the bank as was contended, in this case. So far nothing is said about the owner ; but in the third sec- tion it is provided, that when two or more persons residing oppo- site to each other, near the said river, on different sides thereof, may have *suitable landing places on their respect- r*j33T ive shores, or on an island opposite thereto, for taking seines or nets out of the pool or fishing place ; it shall be lawful for 133 SUPREME COURT \_Dec. Term, (Hart e. HU1) such persons to fish with their seines or nets alternately, and not otherwise ; and the act then proceeds to define how this shall be done. This clearly points to the persons who have a suitable landing place on the shore, or on an island, as those who have a right to fish. This act was to be in force five years, and was con- tinued in 1776; and in 1785, (2 Sm. L. 308,) a more full and particular act is found. The 4th and 5th sections are transcripts of the 1st and 2d above. The 6th section provides that " where two or more persons hold or occupy lands on the same side of the river, adjoining to any pool or fishing place, nothing herein con- tained shall be construed to prevent or deprive any such persons from enjoying the privilege of fishing in that part of the river, directly opposite their own land respectively, as a separate pool or fishing place ; the position of which pool is to be by contin- uing the course of the division line or lines of the persons next adjacent ; and every such division to be subject to the same rules and regulations as other pools and fishing places are by this act subject." This act contains several other provisions; and fixes periods at which they shall cease to fish for shad below the Falls, and other places. In this act we find the phrase fishing for shad, first mentioned ; and a day of the year when they shall cease to fish for shad. Here, also, we first find the words, " privilege of fi shine/ in that part of the river directly opposite their own land respectively, as a separate pool or fishing place," and not as giving that right, but " nothing in this act shall prevent or deprive any person of that privilege;" recognizing such rights as then existing, and declar- ing that it was not meant to impair it. Many other acts were passed for preserving the fish and regulating fisheries in the Schuylkill. The precise nature and extent of the rights of Penn- sylvania and New Jersey over the river Delaware, were not set- tled until 1783 ; and probably for this reason, we find no act reg- ulating fisheries in the Delaware prior to that period ; though the first act cited, was to preserve the fish in that and other rivers, and the preamble stated that they were not caught in such quan- tities as formerly. In (4 Dall. Acts of Assembly, 143,) we find the agreement between the commissioners of the two states, dated 26th April, 1783, ratified 28th September, 1783. The first section of that instrument is thus " It is declared that the river Delaware, from the station point, or north-west corner of New Jersey, northerly ; to the place on the said river where the insular boundary of the state of Delaware toucheth the same, in the whole length or breadth thereof, is, and shall con- tinue to be and remain a common highway, equally free and open to the use, benefit and advantage of the said contracting parties. 1835.] . OF PENNSYLVANIA. 133 (Hart . Hill.) Provided nevertheless, that each of the legislatures of the said states shall hold and * exercise the right of regulating rj)c1 .-. and guarding the fisheries on the said river Delaware, annexed to their respective shores, in such manner that the said fisheries may not be unnecessarily interrupted, during the season of catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under a claim of a common right on said river" On the 30th of March, 1784, (1 Dall. Acts, 195,) we find an act to regulate fisheries in the rivers Delaware and Lehigh. The 2d section prevents, under a penalty, more than one seine heing drawn in the same pool. The 3d section enacts, that " within so much of the river Delaware as extends from the north-west corner of New Jersey, to the place on said river, where the insular boun- dary of said river touches the same, and within all the islands be- longing to this state, from the place where a seine has been usually or shall be usually thrown in, to the place where it has usually been, or shall be usually taken out, shall be, and hereby is de- clared to be, a pool or fishing place ;" and also contains many other regulations of the right of fishing. On the 7th of April, 1786, (1 Dall. Acts, 446,) we have a sup- plement to this act, allowing to fish with two seines in one pool from the Falls at Trenton, to the line of Delaware state, and lim- iting the periods of fishing. On the 6th of March, 1793, (3 Sm. L. 93,) was passed, an act for the sale of islands in the Delaware, Susquehanna, and other navigable streams. They were to be appraised, in order to ascer- tain their value, having regard to the wood, distance from the main land, and to the advantages which may be derived from the same in regard to fisheries. In 1804, (4 Sm. L. 118,) we find another law, re-enacting and modifying the provisions of the act of 1784 ; it again describes a pool or fishing place ; and in the 4th section directs that " wher- ever any fishery is occupied upon the river Delaware, within the limits aforesaid, (that is, as far as it has been declared a highway,) either the land-holder, tenant in possession, or some respectable person appointed by the fishing company, shall give bond to satisfy and pay any fines, for disobeying the provisions of the law at his or their respective fishery ; and also file with the pro- thonotary a description of his or their fishing place, and of the township in which it is situated." In this act we find, as before, in the agreement with New Jersey, the word fishery used ; it also supposes a fishery may be owned by a fishing company ; and the owner or occupier of the shore, or some person for that company, must give bond to the prothonotary. This act proposes a joint law with Jersey. 134 SUPREME COURT [Dec. Term, (Ilartc. Hill.) On the 26th November, 1808, such an act was passed in Jer- sey ; and on the 23d of February, 1809, (5 Sm. L. 5, and fol- lowing pages,) it is recited and re-enacted in this state. This act contains the substance of all the former acts, and some additions r*-ioe-| in direction and *penalties, and in section 10 provides, " That if any person or persons Avhatever shall cast or lay out any seine or net into the river Delaware, within the juris- diction of this state, beyond the right angle of the shore and where his line strikes the river at low water mark going out, or suffer it to swing beyond the right angle of the shore of the river, and where his line strikes it at the water mark coming in, (except by unavoidable accident) every such person shall forfeit and pay, on being legally convicted thereof, the sum of twenty- five dollars for each offence, and costs to be paid to the person, against whose land such offence shall be committed;" and after reciting that part of the agreement between the two states, before copied, it proceeds in the llth section to provide, " That if any ship, vessel, or raft shall, during the season of catching shad in the Delaware, come to anchor at the same on any fishing ground, where shad are usually taken, and shall not immediately be re- moved from the said fishing ground, if such removal can be done with safety, on application for that purpose by the owner or occu- pier of said fishery, to the captain, pilot, or person having com- mand of the said ship, vessel, or raft ; or if any such vessel or raft be wilfully run on shore on any such fishing ground, then such captain, pilot or person having the command as aforesaid, shall forfeit and pay sixty dollars to be recovered with costs by the said owner or occupier. In the seventh volume of Pennsylvania Laws, 295, 296, we find another law of New Jersey, re-enacted in this state, defining and limiting the right of fishing on islands and sand bars in the Delaware, to be within lines drawn from the upper and lower points of said island, at right angles, to a base line from the upper to the lower point of" said island ; and permitting the net to swing below the lower line only, where there is no fishery below and ad- joining. Before proceeding to draw conclusions as to the nature and extent of the right of fishing with a seine in the Delaware, it will be proper to notice two cases in our own reports ; (Carson v. Blazer, and Shrunk v. The Schuylkill Navigation Company,} and it will strike every one that there are several laws, and different provisions in those laws, as regards different rivers. When Carson v. Blazer, was tried before the Circuit Court, no law to regulate fisheries in the Susquehanna had been enacted. Several will be found since ; the provisions in which have made the law in that river very different from the positions decided in 1835.] OF PENNSYLVANIA. 135 (Hartfl. Hill.) that case ; and evidently, the enactments to the Schuylkill and Delaware were not considered as applicable to that case, for they were not adverted to. The case of Shrunk v. The Schuylkill Navigation Company, decided a matter totally different from the point trying in the case before us. When the Delaware was declared a navigable stream and public highway from the southern to the northern line of the state, such declaration gave certain rights and privil- eges to all persons * passing in ships, boats, or rafts ; r^.-. q fi -, and left in the state the power to regulate such naviga- L tion, and to improve such navigation in any way, which would seem to the government of the state, to be for the interest of the state. Several laws had been enacted, forbidding, under severe penalties, any individuals from erecting dams, wiers, &c., within the bed of the Schuylkill, which would injure the navigation or passage of fish. At length a law was passed to improve the navi- gation, and to render the water of that stream of general and permanent utility ; but this was alleged as an injury to Shrunk's fishery. The decision was that the state had, though no unauthorized individual had, a right to improve the navigation and render it a public advantage and benefit, even though some of the privileges and conveniences of those on its banks were im- paired. The present is a different question ; it is one between two citizens, in which the primary object, free navigation by all, or what the s.tate may do, to improve that navigation, is not in question. The right of one person to draw a seine in a particular part of the Delaware, is not inconsistent with the right which every person has to navigate his vessel in the same part of the river, in the course of his business. I shall not go farther back than is necessary to ascertain the origin or nature of a right to fishing in the Delaware, and confine my remarks to a fishery in that river. This case shows that the people and the courts, recog- nized, without dispute, a right of fishery in 1745 and 1752 ; we may say it was well known a century back. The act of 1761 states, that owing to the destruction of young shad in fish baskets, &c., the quantity was greatly less than had been taken in former times. All the laws regulating fisheries in the Delaware, as well as the agreement between Pennsylvania and New Jersey, before cited, are predicated of the idea of separate fisheries existing ; and the agreement expressly stipulates, that the states shall hold and exercise the right of regulating the fisheries in the river Delaware, annexed to their respective shores, in such manner that the fisheries shall not be unnecessarily interrupted during the season of catching shad, by vessels riding at anchor on the 136 SUPREME COURT [Dee. Term, (Hartt). Hill.) fishing grounds, or by persons fishing under a claim of common riyht in said river. It is riot easy to see how, after this solemn treaty between these two states, any person can allege that each fishery was not a separate fishery, and that any person had, or could have, a right to fish, under a claim of common right. Neither state could grant such common right to fish in any and every part of that river ; neither where the tide flowed or did not flow. But if this was not explicit enough, the act passed by both states in 1808-9, removes all possibility of doubt. It ex- pressly prohibits every person from throwing out a net above, or drawing it in, or even letting it swing below his own line on land. Fisheries, then, existed long ago ; by grant or sufferance,. I care not which. The state had a right to regulate fish- ei> i es > * au d has regulated them and bound itself by treaty to regulate them, and has complied with the treaty. No man can be interrupted in his fishery opposite his own land, with impunity ; and he who does interrupt such fishery, is tried, convicted, and sentenced to pay a fine, and forfeits his seine or net. But further, this act recognizes, that a fishery may belong to the owner of the shore opposite to it, or to some other person, or to a company, who are, by a respectable person, to give bond to conform to the law, and to pay alt penalties if they violate it. The plaintiff lias shown such right of fishery ; but still matters were disputed at the trial of the cause, and here also. And first, a fishery is in the river, and i& not the space between high and low water mark, though the use of that space may be necessary in the use of it, and may be in- cluded in the term fishery. The men employed in carrying the rope attached to one end of the seine, may walk on the space be- tween high and low water mark ; and on the same space may place logs, or boards, or stone, to make what is called a pound, Into which to throw the fish when taken out of the net,, and on that space do all that has been usual and is necessary to the use of a fishery ; but the right to a fishery does not of itself imply a fee simple in such space, between high and low water op- posite the fishery ; nor does it lessen or impair the right of the owner of the land opposite, except so far as is necessary to the use of the privilege of the fishery. The right of the owner of land opposite and adjoining a navi- gable river, down to the water's edge, has been too often and solemnly decided to be questioned ; * though this right is not in all respects the same as to the main land above the bank ; for in high tide, or high floods, a vessel or raft may sail over it, or fasten to the shore in a storm, or any case of necessity ; but * See 2 Wharton, 538. 1835.] OF PENNSYLVANIA. 137 (Hart v. Hill.) the owner has the right and sole right to quarry stones or take gravel ahove low water mark, and the sole right to use it and the river opposite as a fishery, unless the right of fishery has heen separated from the land ; in which case, the right of fishery gives it the use of it so far as is necessary, and has been used in the fishery, and no farther. The owner of the land may still, even in the fishing season, drive his cattle over it to water, or do any other act which does not injure or impede the use of the fishery. But he must not, even out of fishery season, do any act which will injure or destroy the fishery. "When," the court say, "the devise of David Sanderlin, is of the fishing place, to him, his heirs and assigns for ever ; when we consider that the testator had no sort of dominion over any thing beyond low water mark, and that his fishing place, if he had one, must necessarily be within that line, and a part of the land that would otherwise be included within John Taylor's devise, it would be hazardous to say a fee simple did not pass to David Sanderlin, but merely an easement over the land of John Taylor. Christopher Taylor, owning and occupying land bounded by the river Delaware, like all other owners of *land on our r*-joo-j principal rivers, had no exclusive privilege or right to ' fish below low water mark opposite to his bank ; that right re- mained in the state, and unless restrained by its laws, was common to every person in the state; he could neither grant nor devise any thing except within low water mark," &c. We think this was said without a due examination of the treaty with New Jersey, and the acts of Assembly cited. A pool, or fishing place a fishery is in the river ; rafts, boats, or vessels, are not to cast anchor in it ; the seine or net is cast out in the river ; it is drawn through the river ; it swings in the river ; and the owner of the shore has the right, and sole right, unless he has parted with it, to fish with nets opposite his land; the owner below cannot come a foot above the right angle from dividing point ; the owner above cannot even let his net swing below the line from the dividing point, and no person can come there and fish under a claim of common right. Originally, it was a privi- lege, or franchise appurtenant to the shore ; but may be leased, sold, or devised to a person not owning the land on the shore ; and such lessee, devisee, or purchaser, has no other right to the adjacent land than is necessary to the full use of the fishery. The fee simple, and all other rights not inconsistent with the use of fishery, may remain in the owner of the land adjoining the river, opposite to the fishery. Clearly, for a direct interruption while actually fishing, trespass may lie ; there may be acts injurious to the fishery, for which care may be the proper remedy. The case, as exhibited to us, 138 SUPREME COURT [Dec. Term, (Sharp v. Thompson.) does not show what was done by the defendant, what acts are complained of, and we can only say that for a direct interruption, trespass is a proper action. Let it be distinctly understood that this opinion relates only to the right of citizens to interfere with a fishery. What right the state of Pennsylvania and New Jersey jointly have to change the channel of the river ; to build dams in it ; to draw off its waters, &c., &c., even though this should affect fisheries, I have said nothing about. Judgment reversed, and a venire de novo awarded. Cited by Counsel, 2 Wharton, 536 ; 9 Watts, 232 ; 10 Id. 65 ; 8 Watts & Sergeant, 442 ; I Barr, 313 ; 7 Id. 191. Cited by the Court, 8 Watts, 476 ; 2 Harris, 518 ; 6 Wright, 228. [PHILADELPHIA, JANUARY 25, 1836.] [*139] SHARP against THOMPSON. IN ERROR. 1. A testator devised as follows : "I give to my son, T. N., all my house and lot situate in Spruce street, Philadelphia, as soon as he shall arrive at the age of twenty-one years, him and his lawful heirs for ever ; and in case of his death, without lawful issue, th,en said house and lot to be sold to the best advantage, and the amount thereof equally divided among my surviving children." Held, that T. N. took an estate tail. 2. A tenant in tail by indenture of bargain and sale, dated the 23d of November, 1797, and acknowledged on the 24th of the same month, in consideration of $2218, conveyed the estate to B. and C., his wife, their heirs and assigns, with a covenant for further assurance. By another deed of bargain and sale, dated the 24th of November, 1797, and ac- knowledged on the same day, A., in consideration of five shillings, and for the purpose of barring the estate tail, &c., conveyed the same estate to B. and his heirs, to the intent and purpose fchatB. should become ten- ant of the freehold, and to be seized thereof, until a common recovery, with single voucher, should be had, &c., and it was covenanted that A. should, before the end of the next term, permit and suffer B. to sue forth a writ of entry, &c., against him (A.) in the Court of Common Pleas, &c., so that judgment might be thereupon had against him (A.), &c. ; and the uses of the said recovery were declared to be, that B. and his heirs should stand seized of the premises, to the use of the said B., his heirs and assigns, &c. On the same 24th of November, A., by a letter of attorney, reciting that he was about to proceed on a voyage by sea, appointed two persons his attorneys, to appear for him in the said re- covery, declaring the same and the uses thereof as in the last mentioned deed. A writ of entry, sur disseisin, &c., tested the 9th of December, 1797, issued, at the suit of B., demandant, against A., tenant, returnable at the March term following of the Court of Common Pleas ; at which 1835.] OF PENNSYLVANIA. 139 (Sharp V. Thompson.) term a common recovery, with single voucher, was suffered ; and a writ of seisin, tested the 9th of March, 1798, issued accordingly. On the 19th of December, 1797, B., with C. his wife, in consideration of 2218, con- veyed the premises to D. in fee. In an ejectment, (instituted in 1829) by the heir in tail of A., against a purchaser under D., it was held, that the second deed was to be considered a nullity ; that the first deed was to be taken as declaring the uses of the recovery ; and that the recovery was well suffered, and operated to vest the estate in B. and his wife, to the use of their vendee. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Samuel Thompson and Ann, his wife, (in right of the said Ann,) against Hannah Taylor, to recover posses- sion of a house and lot of ground in Spruce street, near Second street, in the City of Philadelphia. Samuel Thompson and Hannah Taylor both died after the com- mencement of the suit. On the trial, in the court below, a special verdict was rendered, finding the following facts, viz : * " That Thomas Newark, sen., died on the day of Decem- ber, 1786, seized in fee of a certain house and lot in Spruce *street, in the City of Philadelphia the premises for I^-MAT the recovery of which the action is brought having first made his will, dated the 12th of December, 1786. Probate of which was duly made by the executors, therein named, on the 29th of December, 1786. That Thomas Newark, Jr., one of the sons of the testator aforesaid, and one of his devisees, died about the year 1807, leaving a widow, Christiana Sleet, and one child, Ann, the plaintiff. That the said Thomas Newark, Jr., was married to the said Christiana, on the 18th of July, 1801. That the said Thomas Newark, Jr., was twenty-seven years old, when he married as aforesaid, and that when thus married he lived there- after six years. That the said Ann, the plaintiff, was born on the 13th of July, 1803 ; and was married five years before Sep- tember, 1830. That a certain deed, dated the 23d of November, 1797, was made by the said Thomas Newark, Jr., to Samuel Guthrie, and Hannah his wife, which said Hannah is the aforesaid Hannah Taylor. That a certain deed, dated the 24th of November, 1797, was made by the said Thomas Newark, Jr., to Samuel Guthrie. That a certain deed, dated the 19th of December, 1797, was made by the said Samuel Guthrie and Hannah, his wife, to John Stapler Littler. That a certain deed, dated the 23d of July, 1803, was made by the said John S. Littler and wife, to Robert Smith in trust. 140 SUPREME COURT. [Dec. Term, (Sharp v. Thompson.) That a common recovery was suffered to March term, 1798, wherein Samuel Guthrie was demnadant, and Thomas Newark, Jr., was tenant. That the conveyances, namely, the deeds and the common re- covery aforesaid, were conveyances of the premises aforesaid ; for the recovery of which this action is brought." The clause in the will of Thomas Newark, relating to the pro- perty in question, was as follows : " Also: I give to my son, Thomas Newark, all my house and lot, situate in Spruce street, Philadelphia, (now in the tenure of Abraham G. Claypoole,) as soon as he shall arrive at the age of twenty-one years, him and his lawful heirs for ever ; and in case of his death without lawful issue, then said house and lot to be sold to the best advantage, and the amount thereof equally divided among my surviving children, except my daughters, before mentioned, each of whom are to have only one-half as much as each of my sons." The deed of the 23d November, 179T, referred to in the special verdict, was as follows: " This indenture, made the 23d day of November, in the year r*14.n ^ * our Lord one thousand seven hundred and ninety - J seven, between Thomas Newark of the City and County of Philadelphia, mariner, of the one part, and Samuel Guthrie, of the same place, merchant, and Hannah, his wife, of the other part, witnesseth ; that the said Thomas Newark, for, and in con- sideration of, the sum of two thousand two hundred and eighteen dollars and seventy-nine cents, lawful money, to him at or before the sealing and delivery hereof, by the said Samuel Guthrie, and Hannah his wife, well and truly paid, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, re- leased and confirmed, and by these presents doth grant, bargain, sell, alien, release, and confirm unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, all that messuage or tenement, and lot or piece of ground now in tenure of the said Samuel Guthrie and wife, situate on the south side of Spruce street, between Delaware, Second and Third streets, in the said City of Philadelphia ; containing in breadth eighteen feet, and in length or depth fifty-one feet; bounded eastward by ground formerly of Nathaniel Allen, deceased ; southward, by ground formerly of Henry Badcock, deceased ; westward, by a messuage and lot formerly of Joseph Webb, and since of George Wells ; and northward by Spruce street aforesaid. [It being the same messuage, lot and premises which John Morris, of the district of Southwark, Gent., by indenture, dated the 2d day of January, 1782, recorded Book No. 6, page 213, granted unto Thomas Newark, the father of the said Thomas, party hereto in fee, sub- 1835.] OF PENNSYLVANIA. 141 (Sharp v. Thompson.) ject to a yearly rent charge- of three pounds twelve shillings, law- ful money, payable to Nathaniel Allen, his heirs and assigns, on the 25th day of March, yearly, for ever ; and which premises, the said Thomas Newark, the father, by his last will and testa- ment in writing, dated the 12th day of December, 1786, and proved and remaining in the register's office at Philadelphia, de- vised unto the said Thomas Newark (his son) party hereto, and his lawful heirs for ever.] Together with all and singular, the ways, waters, water-courses, rights, privileges, improvements, members and appurtenances whatsoever thereunto belonging, and the reversions and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, property, claim and de- mand whatsoever, of him the said Thomas Newark, and his heirs in law and equity, of, in, and to the same. To have and to hold, all the said messuage, tenement,, lot or piece of ground, heredita- ments, and premises hereby granted or mentioned t so to be, with the appurtenances, unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, to and for the only proper use and behoof of the said Samuel Guthrie, and Hannah his wife, their heirs and assigns for ever ; under and subject, nevertheless, to the payment of the aforesaid yearly rent charge of three pounds twelve shillings, lawful money, so as the same rent from and after the date *of these presents, shall accrue and become due r*i4.o-i and payable for ever ; but free and clear of and from all other incumbrances whatsoever. And the said Thomas Newark, for himself, his heirs, executors and administrators, doth hereby covenant, promise and grant, to and with the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, in manner follow- ing, that is to say, that he, the said Thomas Newark, and his heirs, all the said messuage, tenement, lot or piece of ground, hereditaments and premises, hereby granted or mentioned, so to be with the appurtenances, unto the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, under and subject as aforesaid, against him, the said Thomas Newark, and his heirs, and against all and every other person and persons whatsoever, lawfully claiming or to claim, by, from, or under him, or them, or any of them, shall and will warrant and for ever defend ; and further, that he the said Thomas Newark, and his heirs, shall and will at any time hereafter, at the request of the said Samuel Guthrie, and Hannah, his wife, their heirs and assigns, make, do, execute, acknowledge and deliver, or cause to be made, execut d and delivered, all such further and other act and acts, deed or deeds, conveyances and assurances in the law whatsoever, for the better and more perfect assuring and confirming the fee simple and inheritance of the said messuage, lot of ground and premises, with the appurtenances, subject to the rent charge aforesaid, unto VOL. I. 10. 142 SUPREME COURT [Dec. Term, (Sharp v. Thompson.) the said Samuel Guthrie, and Hannah his wife, their heirs and assigns, as counsel learned in the law shall reasonably advise and require. In witness whereof, the said parties have interchange- ably set their hands and seals hereunto. Dated the day and year first above written. THOMAS NEWARK, [L. s.] Sealed and delivered in the presence of us, ABRM. SHOEMAKER, JOEL RICHARDSON. Received the day of the date of the above written indenture, of the above named Samuel Guthrie, and Hannah his wife, the sum of two thousand two hundred and eighteen dollars and seventy-nine cents, being the full consideration moneys above mentioned. THOMAS NEWARK. Witness at signing, ABRM. SHOEMAKER, JOEL RICHARDSON. The twenty -fourth day of November, A. D. 1797, before me, the subscriber, one of the Justices of the Peace, for the County of Philadelphia, came the within named Thomas Newark, and acknowledged the within written indenture to be his act and deed, * an d desired the same to be recorded as such. Witness my hand and seal. JOSEPH BIRD, [L. s.] Recorded in the Office for Recording of Deeds, &c., for the City and County of Philadelphia, in Deed Book E. F., No. 16, page 705. Witness my hand and Seal of Office, this 20th day of November, 1804. EDWARD Fox, Recorder" The deed of the 24th of November, 1797, referred to in the special verdict, began as follows: "This indenture made the 24th day of November, in the year of our Lord 1797, between Thomas Newark, of the City and County of Philadelphia, mariner, of the one part, and Samuel Guthrie, of the same place, mer- chant, of the other part." It then recited the conveyance, by John Morris to Thomas Newark, the father of the grantor, and the will of Thomas Newark, the father, setting forth, verbatim, the clause of the will, before mentioned, and then proceeded as follows : " Now this indenture witnesseth, that the said Thomas Newark, party hereto, for the docking, barring and cutting off all estates 1835.] OF PENNSYLVANIA. 143 (Sharp v. Thompson.) tail, and remainders in tail, of and in the said premises, and for the settling and assuring the same, to and for the uses and pur- poses hereinafter limited, expressed and declared, and in consid- eration of the sum of five shillings to him paid by the said Samuel Guthrie, at the time of the execution hereof, the receipt whereof is hereby acknowledged, hath and hy these presents doth grant, bargain and sell to the said Samuel Guthrie, his heirs and assigns, all that the aforesaid messuage or tenement, and lot or piece of ground, situate, hounded and being as above described, containing in breadth eighteen feet, and in depth fifty-one feet, together with all the rights, privileges, hereditaments and appur- tenances whatsoever thereunto belonging, and the reversions and remainders, rents, issues and profits thereof, and also all the estate, right, title, and interest whatsoever, of him the said Thomas Newark, party hereto, in law or equity, of, in, to, and out of the same : to have and to hold the said messuage or tene- ment, and described lot or piece of ground and premises hereby granted, with the appurtenances, to the said Samuel Guthrie and his heirs for ever, to the intent and purpose, that he, the said Samuel Guthrie, shall and may become perfect tenant of the freehold of the said premises, with the appurtenances, and shall stand and be seized thereof, until a good and perfect common recovery, with single voucher over, may be had, suffered and executed, of the same, according to the usual course of com- mon recoveries, for the assurance of lands and tenements, in such case *used and accustomed; and thereupon it is hereby r* 144-1 covenanted and concluded and agreed, by and between the said parties hereto, for themselves and their respective heirs, in manner following, that is to say, that the said Thomas Newark, party hereto, shall and will, before the end of December term next coming, permit and suffer the said Samuel Guthrie to sue forth and prosecute against him, the said Thomas Newark, party hereto, one writ of entry sur disseisin -en le post, returnable be- fore the justices of the Court of Common Pleas, for the County of Philadelphia, thereby demanding against the said Thomas Newark, party thereto, the premises aforesaid, with the appur- tenances, by such name and description, and in such manner and form as by counsel learned in the law shall be advised. And upon which, said writ of entry so to be sued forth and prosecuted, the said Thomas Newark, party hereto, by himself, or by his at- torney or attorneys, shall appear gratis, and vouch to warranty Joseph Fox, who shall appear and imparle, and afterwards make default, and depart in contempt of the court, so that judge- ment may be thereon had for the said Samuel Guthrie, to recover the premises aforesaid, against the said Thomas Newark, party hereto, and for the said Thomas Newark, to recover in value 144 SUPREME COURT [Dec. Term, (Sharp r. Thompson.) against the said Joseph Fox, the common vouchee, to the end that one perfect common recovery, with single voucher, may be thereupon had and suffered, and all and every other thing and things may be done, needful and proper for suffering the same, according to the course of common recoveries in such cases used ; and the same recovery is also to be executed by one writ of habere facia* seisinam accordingly. And it is hereby covenanted and agreed, by and between the parties to these presents, for them- selves, and their, and each of their heirs, that the said recovery so as aforesaid, or in any other manner to be had and suffered of the premises aforesaid, shall be and enure and shall be deemed and adjudged and taken, and is meant and intended, and by the said parties to these presents, is hereby declared to be and enure, and the said Samuel Guthrie and his heirs, from, and immediately after the suffering, the same shall be and stand seized of the said premises, with the appurtenances, to and for the only proper use, benefit and behoof of the said Samuel Guthrie, his heirs and assigns for ever, and to and for no other use, intent or purpose whatever. In witness whereof the said parties have hereunto in- terchangeably set their hands and seals. Dated the day and year first above written. THOMAS NEWARK, [L. s.] SAMUEL GUTHRIE, [L. s.] Sealed and delivered in the presence of us, ABM. SHOEMAKER, JOEL RICHARDSON, . JOHN S. LITTLER. r*14'51 ^ November, Anno Domini, 1797, ' -I before me the subscriber, one of the Justices of the Peace for the County of Philadelphia, personally appeared Thomas Newark and Samuel Guthrie above named, and ac- knowledge the above written indenture to be their act and deed, for the uses and purposes therein mentioned, and desired the same might be recorded as such. Witness my hand and seal the day and year aforesaid. JOSEPH BIRD, [L. s.]" The deed of the 19th of December, 1797, by Guthrie and wife, to Littler, and that of the 23d of July, 1803, from Littler and wife, to Smith, were not material, except as evidence of the de- fendant's title the conveyances being in the ordinary form. The consideration expressed in the deed of Guthrie to Littler, was the same as that stated in the first deed of Newark to Guth- rie, viz. $2221.79. 1835.] OF PENNSYLVANIA. 145 (Sharp v. Thompson.) The proceedings in relation to the -common recovery, were as follows : On the 24th of November, 1797, Thomas Newark, by, deed poll reciting, that he was about to proceed to sea, " and being desirous that a common recovery may be suffered of my estate, hereinafter mentioned," constituted Robert Porter, of the City of Philadelphia, attorney at law, and Abraham Shoemaker, of the same city, conveyancer, jointly and severally, his true and lawful attorney, for the following purposes, viz. : " For me, and in my name, to appear before the Justices of the Court of Com- mon Pleas, for the County of Philadelphia, before the end of December term next, or any other term after the date hereof, and permit and suffer Samuel Guthrie, of the said city, merchant, to sue forth and prosecute against me, the said Thomas Newark, one writ of entry sur disseisin en le post, returnable before the said Justices of the Court of Common Pleas for the County of Philadelphia, thereby demanding against me, the said Thomas Newark, all that messuage or tenement, and lot or piece of ground thereunto belonging, situate on the south side of Spruce Street, between Delaware Second and Third Streets, in the said city, with the appurtenances, which, in the testament and last will of my father, Thomas Newark, deceased, dated the 12th of December, 1786, is devised to me in fee tail ; by such name and description, and in such manner and form, as by counsel learned in the law shall be advised ; and upon which said writ of entry so to be sued forth and prosecuted against me, the said Thomas Newark, to appear, gratis, and vouch to warranty Joseph Fox, who shall appear and imparle, and afterwards make default and depart in contempt of the court, so that judgment may be there- upon had for the said Samuel Guthrie, to recover the premises aforesaid against me, the said Thomas Newark, and for r*i4g-i *me to recover in value against the said Joseph Fox, the common vouchee ; to the end that- one perfect common re- covery, with single voucher, may be thereupon had and suffered, and all and every other thing and things may be done, needful and proper for suffering the same, according- to the course of common recoveries, in such cases used ; and the same recovery is also to be executed by one writ of habere facias seisinam ac- cordingly; and the said recovery so as aforesaid, or in any other manner to be had and suffered of the premises aforesaid, shall be and enure, and shall be deemed, adjudged and taken, and is hereby meant, intended, and declared to be, and enure, from and immediately after suffering the same, to and for the only proper use, benefit, and behoof of him, the said Samuel Guthrie, his heirs and assigns forever, and to and for no other use, intent or purpose whatever: and in case the said recovery 146 SUPREME COURT [Dec. Term, (Sharp v. Thompson.) cannot be so, as aforesaid, suffered and executed of the said premises at the time aforesaid, I do hereby authorize and fully empower my said attorneys, jointly and severally, to appear for me, and in my name, before any Court or Courts of record in Pennsylvania, in any term after the date hereof, and there permit and suffer any person or persons whatsoever, to sue forth and prosecute against me one or more writ or writs of entry, tsur disseisin en le post, returnable before the justices of the said court or courts, demanding the premises aforesaid, so .that one or more good and perfect common recovery or recoveries, with single, double, or treble vouchers, may be had and suffered of the premises aforesaid, according to the usual course of common recoveries, for the assurance of lands and tenements, in such case used and accustomed : and all and whatsoever my said attor- ney and attorneys, jointly and severally, shall lawfully do or act in and about the premises, by virtue hereof, I do hereby ratify, confirm, and allow the same, as if I was present and did the same in my own person. In witness whereof, I, the said Thomas New- ark, have hereunto set my hand and seal, this twenty-fourth day of November, anno Domini one thousand seven hundred and ninety-seven. THOMAS NEWARK, [L. s.] Sealed and delivered in the presence of us, JOEL RICHARDSON, JOHN S. LITTLER." Annexed to this power of attorney, were the following acknowl- edgments : " On the 24th day of November, anno Domini 1797, before me, the subscriber, one of the Justices of the peace for the County of Philadelphia, came the before-named Thomas Newark, who is T*1471 now of * lawful age, and acknowledged that he signed, - sealed, and delivered the foregoing letter of attorney as his act and deed, for the uses and purposes therein mentioned and described, and desired the same might be recorded as such. Wit- ness my hand and seal the day and year aforesaid. JOSEPH BIRD, [L. s.] On the 26th day of January, anno Domini 1798, before me, the subscriber, President of the Court of Common Pleas for the County of Philadelphia, came the before-named Thomas Newark, who is now of lawful age, and acknowledged that he signed, sealed and delivered the foregoing letter of attorney, as his act and deed, for the uses and purposes therein mentioned and de- scribed, and desired the same might be recorded as such. Wit- ness my hand and seal, the day and year aforementioned. JOHN D. COXE, [L. s.]" 1885.] OF PENNSYLVANIA. 147 (Sharp 75. Thompson.) The record of the common recovery -was as follows : "March Term, 1798. Common Recovery Samuel Ghithrie, Demandant, v. Thomas Newark, Tenant to the use of Sam- uel Gruthrie. Pleas enrolled at Philadelphia, before the Hon. John D. Coxe, Esq., president, and his associates, judges of the Court of Com- mon Pleas, in, and for the County of Philadelphia, in the Term of March, in the year of our Lord one thousand seven hundred and ninety-eight. Philadelphia County, ss. Samuel Guthrie of the City of Phila- delphia, merchant, in his proper person, demandeth against Thomas Newark, of . the City and County of Philadelphia, mari- ner, a certain messuage or tenement, and lot or piece of ground, now in the tenure of said Samuel, and Hannah, his wife, situate on the south side of Spruce Street, between Delaware Second and Third Streets, in the said city, containing in breadth, eighteen feet, and in length or depth, fifty-one feet. Bounded eastwardly, by ground formerly of Nathaniel Allen, deceased ; southwardly, by ground formerly of Henry Babcock, deceased ; westwardly, by a messuage and lot, formerly of Joseph Webb, and since of George Wells ; and northwardly, by Spruce Street aforesaid, together with the appurtenances, subject to a yearly rent of three pounds twelve shillings, lawful money of Pennsyl- vania, to Nathaniel Allen, his heirs and assigns for ever, which, by the testament and last will of Thomas Newark, father of the said Thomas Newark, bearing date the twelfth day of December, anno Domini one thousand seven hundred and eighty-six, recorded in the register's office at Philadelphia, was devised to his son, the said Thomas Newark, which he claims ( to be his right and inheritance, and into which, the said Thomas hath not entry, *unless after a disseisin, which Hugh Hunt thereof rfc-Mci unjustly, and without judgment, hath made to the afore- said Samuel Guthrie, within thirty years, now last past ; and whereupon he saith, that he himself was seized of the tenements aforesaid, with the appurtenances, in his demesne, as of fee and right, in time of peace, in the time of the commonwealth that now is, by taking the profits thereof to the value, &c., and into which, &c., and thereupon he bringeth suit, &c. : and the said Thomas Newark, by his attorneys, Robert Porter, of the City of Philadelphia, Esquire, and Abraham Shoemaker, of the same place, conveyancer, duly constituted and appointed by letters of attorney, bearing date the twenty-fourth day of November, in the year of our Lord one thousand seven hundred and ninety-seven, comes and defends his right, when, &c., and thereupon voucheth to warranty Joseph Fox, who is present here in court, in his 148 SUPREME COURT [Dec. Term, (Sharp e. Thompson.) proper person, and the tenements aforesaid, with the appurte- nances to him freely warranteth, &c., and hereupon the said Samuel demandeth against the said Joseph Fox, tenant, by his own warranty, the tenements aforesaid, with the appurtenances in form aforesaid, &c., and whereupon he saith that he himself was seized of the tenement aforesaid, with the appurtenances in his demesne, as of fee and right in time of peace, in the time of the commonwealth that now is, by taking the profits thereof, to the value, &c., and into which, c., and thereupon he bringeth suit, &c., and the aforesaid Joseph Fox, tenant by his own war- ranty, defends his right, when, c., and saith, that the aforesaid Hugh did not disseise the said Samuel Guthrie of the tenements aforesaid, with the appurtenances, as the said Samuel, by his writ and count aforesaid, above, doth suppose, and of this he puts himself upon the country, and the aforesaid Samuel thereupon craveth leave to imparle, and he hath it; and afterwards the aforesaid Samuel cometh again here into court, in this same time, in his proper person, and the aforesaid Joseph, although solemnly called, cometh not again, but hath departed in contempt of the court, and maketh default : Therefore, it is considered that the aforesaid Samuel Guthrie, do recover his seisin against the said Thomas Newark, of the tenements aforesaid, with the appurte- nances, and that the said Thomas, have of the lands of the said Joseph, to the value, &c., and the said Joseph in mercy ; and hereupon the said Samuel prays a writ of the commonwealth, to be directed to the sheriff of the county aforesaid, to cause full seisin of the tenements 'aforesaid, with the appurtenances, to be delivered to him, and it is granted to him, returnable here forth- with. And afterwards, in this same term, to wit, the day of March, cometh the said Samuel in his proper person, and the sheriff, namely, Jonathan Penrose, Esquire, now returneth, that he, by virtue of the writ aforesaid, to him directed, on the day of the same month, did cause the said r*14Ql *Samuel Newark to have full seisin of the tenements aforesaid, with the appurtenances as he was com- manded." " Robert Porter, Esq., a special Power of Attorney, filed with this common Recovery, vouches to Warranty Joseph Fox, the com- mon vouchee." Upon the facts found by the special verdict, the District Court ordered judgment to be entered for the plaintiff below ; where- upon the defendant removed the record to this court ; and as- signed the following errors : "1. That the court below erred in giving judgment for the plaintiff below, because Thomas Newark, Jr., did not, as the court 1835.] OF PENNSYLVANIA. 149 (Sharp v. Thompson.) below supposed, take an estate tail, under the will of his father, but took a fee simple, with condition of defeasance. 2. That the court below erred in giving judgment for the plain- tiff below, because, if Thomas Newark did, as they supposed, take an estate tail, under the will of his father, that estate tail was barred by the common recovery." Mr. C. Ingersoll, for the plaintiff in error : 1. Thomas Newark, the devisee, took a fee simple in the house and lot, liable to be defeated by his death without issue. [Upon an intimation by the court, that they considered the question settled by repeated adjudications, Mr. Ingersoll abandoned this point.] 2. The common recovery was well suffered. The whole dif- ficulty has arisen from the mistake of the scrivener, who, instead of drawing a re-conveyance from Guthrie to Newark, drew a sec- ond conveyance from Newark to Guthrie, which the parties exe- cuted in ignorance. This is a mistake of the kind which the courts always allow to be corrected. 2 Black. Com. 358 ; 5 Cruise. Dig., p. 440, tit. 36. c. 6, s. 22 ; Id. 437, 438. It is not neces- sary, however, to contend for an amendment. The intention of the parties is obvious, and the court will carry it into effect by disregarding the second deed, and treating it as a nullity. The first deed may then be considered as merely a declaration of the uses of the recovery, and not as divesting the estate of Newark. The record is prima facie evidence of there being a good tenant to the prcecipe ; and it is no matter whether he is a tenant by right or wrong. Wilson on Fines, &c., 275 ; Pigott on Ditto, 28, 40, 41. There was nothing to the contrary but the deeds, and no possession on the part of the plaintiff. Lord Cromwell's case, (2 Rep. 74 ;) Pigott, 59, 60 ; 2 Black. Com. 362, 363 ; 5 Cruise. Dig. 450. In England, the Stat. of Geo. 2, renders all recoveries *good, after twenty years possession. Here, r*i50i there has been possession for thirty-seven years ; and the court will presume every thing in favor of it. It will be re- marked, that all these instruments were acknowledged on the 24th of November, before the same magistrates, and with the same witnesses. They may be considered as the same transaction. The case of Doe ex. dem. Odiorne v. Whitehead, (2 Burr. Rep. 704,) shows how far the courts will go in supporting these species of assurance. If. no deed to make a tenant to the prceripe were produced, the court would presume one, or presume the tenant in, by disseisin. 3 Rep. 59 ; 1 Mod. Rep. 117 ; Jacob's Law Diet. tit. Recovery. Equity will correct mistakes in deeds and wills. 1 Mad. Chan. 44, 55. 150 SUPREME COURT [Dec. Term, (Sharp 9. Thompson.) Mr. Norris and Mr. James S. Smith, contra. The act of the 27th January, 1749-50, "for barring estates tail," declares that fines and common recoveries, " suffered duly and according to the common statute laws of England," shall have the like force and effect as in England. No greater power or effect is given to them. Now, there are certain forms necessary to give validity to a com- mon recovery ; and these cannot be dispensed with. 2 Black. Com. 360 ; 5 Cruise. Dig. tit. 36, c. 1, s. 9. In the case of a recovery with a single voucher, as here, the tenant in tail must be tenant to the prceripe, and must be in possession of the pre- mises. 5 Cruise. Dig. tit. 36, c. 2, s. 10 ; Stump v. Findley, (2 Rawle, 175.) Here it appears that when the recovery was suf- fered ; that is, at March term, 1798, the title was in Littler. If Thomas Newark, Jr., conveyed the estate by feoffment, it was a discontinuance. 3 Black. Com. 171. Our act of 1715 says, that deeds of bargain and sale shall have the effect of a feoffment. At all events, Newark conveyed all his own estate. There is no evidence of any intention that Guthrie should reconvey to New- ark, or of any mistake. There is nothing on the record to amend. The record is all right on its face ; but we show the recovery to be wrong, by proving that Newark had neither title nor pos- session at the time. In Bridges v. The Duke of Chandos, (2 Burr. Rep. 1073,) Lord Mansfield said, that if a person had pmver to suffer a recovery, and thereby bar an estate tail, omnia prcemmuntur rite et solernniter egse acta until the contrary ap- pears ; but if the contrary appears, there is an end to the pre- sumption. And he mentioned the case of the Earl of Suffolk, where blundering deeds were produced, which appeared clearly to be wrong, " and it was manifest upon the evidence disclosed, that there was NO good tenant to the prcecipe" That is the case here. The deed to lead the uses, forms no part of the record, and, con- sequently, could not be amended, even if there were anything to amend, by which there is not. They also cited Cruise on Recov- eries, &c., 8, 12 ; Coventry on Do., 32, 51 ; Pigott on Do., 28 ; 5 Cruise. Dig. tit. 36, c. 7. *Th e opinion of the court was delivered by SERGEANT, J. On the question, what estate Thomas Newark took, under the will of his father, there has been little or no argument m this court ; but I think it clear, that according to the current of decisions in this court and in England, he took an estate tail. Most of the authorities applicable to this point, will be found collected in the cases of ffaines v. Witmer, (2 Yeates, 400,) and Clark v. Baker, (3 Serg. & R. 470.)* The more *See 9 Watts, 450 ; 9 Barr, 130 ; 11 Harris, 10 ; 6 Casey, 158, 161 ; 2 Wright, 166. 1835.] OF PENNSYLVANIA. 151 (Sharp v. Thompson.) doubtful point has been, whether the common recovery was duly suffered, so as to bar the issue in tail ; and the court below held that it was not. The act of assembly of the 27th of January, 1749-50, gave to fines and common recoveries the same effect for the barring of estates tail within this province, as they had by the laws of Eng- land ; and many recoveries were suffered for this purpose, prior to the passage of the act of the 16th of January, 1799, which enables tenants in tail to convey by deed, as fully as they could by common recovery or otherwise. In the construction of com- mon recoveries, suffered after the act of 1749-50, the same rules are applicable which governed them in England : and in that country, they had long been treated as common assurances ; and it has become a settled rule, that, like other conveyances, such construction is to be made as will best support the agreement of the parties, and carry into effect their intentions. The main con- sideration is, whether there were parties competent to suffer the recovery. If there were, every interpretation of their acts is to be made with a view to sustain their conveyance, and not to per- mit mistakes or blunders in the use of the machinery employed, to overturn rights acquired and transmitted to purchasers for valuable consideration. Before the statute de donis, a grant to one and the heirs of his body was so interpreted by the courts, as to enable the donee to transfer a fee simple, as soon as issue was born. That statute forbade this construction, and created tenancy in tail, with the design of preserving the estate in one family, from generation to generation. Perpetuities of this kind were found so inconvenient, and so hostile to the improvement of the country, that the device of a common recovery was allowed, in order to unfetter the estate ; and the tenant in tail has since been treated as the potential owner of the fee simple, having an inherent right to destroy the entail, with all remainders and reversions, incapable of being restrained or prevented by any clauses of limitation, condition, or prohibition, by custom, recog- nizance, or otherwise ; and every support and encouragement have been given to common recoveries, as legitimate modes of conveyance of the fee simple. As early as Lord Coke's time, the language of the courts is quite as strong as any that has been since uttered. In Jennings' case, (10 Co. 44,) it is said, that where tenant in tail is, in the recovery, tenant in fact, or tenant in law, as vouchee, *the law, as incident to his estate, p*]^"] has made the land and all remainders and reversions subject to his pleasure, and he has right and power to bar them all. In 3 Rep. 3, ( Winchester's case,) it is said, that common recoveries, as much as any benign interpretation of the law will permit, ought to be maintained, because they are the common 152 SUPREME COURT \I)ec. Term, (Sharp v. Thompson.) assurances of the land. In Lord CromwelVs case, (2 Rep. 74,) it is said, that common recoveries are common assurances of the land ; and such conveyances shall be expounded and be construed according to common allowance, without prying into them with eagle's eyes. After an interval of two centuries, Blackstone says, that modern courts of justice consider them in no other light than as the formal modes of conveyance, by which tenant in tail is enabled to alien Ms lands. 2 Black. Com. 360. This language has been often reiterated. 2 Black. Com. 358 ; 1 Wils. 73 ; 1 Burr. 115. I speak not now of a recovery suffered by a tenant for life, which is forbidden by the law, and is always strictly construed. It is far otherwise of a tenant in tail, conveying a fee simple by it ; for he does no more than what he may right- fully do, and what public policy has encouraged him to do. Let us examine, then, whether the recovery in the present instance cannot be sustained ; for if it can be so, by any reasonable inter- pretation of the acts of the parties, it certainly ought to be in fa- vor of persons holding under it as purchasers for valuable con- sideration, by titles transmitted from hand to hand, accompanied with possession for now about thirty -seven years. Thomas Newark was tenant in tail of the premises under the will of his father, and, as such, entitled to transfer a fee simple by suffering a common recovery. He was about to leave this city on a voyage to Amsterdam, as appears by the power of attorney ; and had sold, or contracted to sell the premises to Guthrie and wife, or, if they acted as his friends, to Littler : for, on the 19th of December, 1797, soon after the deeds of the 24th November and the teste of the writ of entry, Littler took a deed from Guthrie and wife, in fee simple, in consideration of $2218 79 ; the same consideration stated in the deed from New- ark to Guthrie and .wife. Littler held until 1803, when he con- veyed to Robert Smith, under whom the defendant holds. It is impossible not to perceive, from the whole transaction, that Lit- tler stood in the light of a bona fde purchaser of the fee simple, for a valuable consideration, entitled, as such, to demand from Newark the suffering of a common recovery to transfer the title ; and that the uses of the recovery were to be in Guthrie and wife, (or Guthrie himself, which leads to the same result,) for the pur- pose of conveying the fee to Littler ; and that Littler bought on the faith of this arrangement, then actually made and in progress of completion. The first deed is dated on the 23d of November, 1797, but was acknowledged on the 24th : and by it Newark, in consideration ["'M'ttl ^ *2218 79, bargains and sells the premises to Samuel -I Guthrie, and Hannah his wife, their heirs and assigns, to the use of Samuel Guthrie, and Hannah his wife, their heirs and 1835.] OF PENNSYLVANIA. 153 (Sharp v. Thompson. ) assigns; with a covenant for further assurance. If this deed be considered by itself, as an instrument altogether distinct from the other acts and declarations' of the parties, then it conveyed no more than Newark could rightfully convey by deed, namely, a base fee, which bound him during his life time ; but which his issue might defeat by entry. This point was settled by Chief Justice Holt, in the case of Machel v. Clark, 2 Ld. Ray. 778 ; 3 Burr. 1703; Prest. Abs. Tit. 385. A conveyance under our recording act, has the same eifect: it passes no more than the grantor can lawfully convey. M'Kee's Lessee v. Pfoutz^ Dall. 486. A common recovery, afterwards duly suffered by Newark, with double voucher, would have corroborated the base fee trans- ferred by the bargain and sale to Guthrie and wife, and passed a fee simple, to the same uses as those contained in the deed to them. But a common recovery, with single voucher, suffered by Newark, in which he was tenant to the prcecipe, as he had parted with the freehold by his deed to Guthrie and wife, would bar him- self only, and not his issues. This, however, is not the true way of considering the transac- tion. It is obvious, from the dates of the deeds and power of attorney, and from the proceedings in the recovery, that they constituted, together, one assurance ; of which the deed to Guth- rie and wife, was a deed to lead the uses, and was but part of the proceedings, and executory until the recovery was suffered. When suffered, it enured to the uses declared in that deed ; more especi- ally, as there is an immediate purchaser under it. Where no uses are declared of & recovery, either by a previous deed to lead the uses, or a subsequent one to declare them, it enures to the use and benefit of him who suffers it. If there be a purchaser, for a valuable consideration, the recovery, when suffered, enures to his use. Here were both a deed to lead. the uses to Guthrie and wife, and an immediate purchaser, for valuable consideration, from them. The deed of the 23d November, 1797, being but executory, its only operation, till the recovery should be com- pleted, Avas to fix the uses of the recovery ; and when the recovery Mas completed, the freehold and seisin passed to the demandant, Guthrie, to those uses, and those uses only. A deed to lead the uses of a fine or recovery, says Mr. Preston, in his Treatise on Conveyancing, vol. ii, page 2, 3, is not a conveyance of itself. It has no individual or immediate operation on the seisin or estate. It is merely a covenant or agreement to levy a fine, or suffer a common recovery. This deed, and the fine when levied, or re- covery when suffered, will operate as a part of the same assur- ance. No estate passes till the fine is levied, or recovery suffered; and in the mean time, no uses can arise, for want of a seisin to supply or feed those uses. In the case of Doe dem. Odiorne 154 SUPREME COURT [Dec. Term, (Sharp e. Thompson.) * v * J^***^* 8 ^ (2 Burr. 70,) the first instrument was a conveyance in January, 1735, from Timothy Staughton, the tenant in tail, by lease and release, to trustees, to uses, in strict settlement, with a covenant to levy a fine to the same uses. Afterwards, in Hilary term, 1735, Timothy Staughton did levy a fine according to the covenant. The argument of the plaintiff was, that the fine passed no freehold, the freehold having heen, before levying of the fine, conveyed by lease and release, and that the fine was a distinct conveyance. But Lord Mansfield says, all was executory at the time of making the lease and release ; the deeds and the fine were to be considered as one conveyance : the operation of the deeds was only to declare the uses of the fine : and the court condemn, in strong language, the attempt to divide the different parts of one conveyance, and declare that, in point of law, the whole transaction, and its general intention, ought to be taken into one view. So here, Newark had a right to suffer a common recovery, and sell the fee simple : it was his plain and obvious intent to do so, on the face of the whole transaction. The deed to Guthrie and wife is not to be severed from the rest, and treated as a distinct conveyance, but as a deed to lead the uses of a common recovery, to be suffered for the purposes of passing the fee simple to a purchaser. And this abundantly appears, although there is in the deed no covenant to suffer a recovery, or any men- tion of it. Under the covenant for further assurance, a pur- chaser has a right to demand that a recovery be suffered by the tenant in tail in his favor, as fully as if that covenant were par- ticularly expressed. 1 Prest. Convey. 15 ; 1 Prest. Abs. Tit. 257. And from that covenant, from there being a purchaser, and from the cotemporaneous dates and proceedings, it is plain that the recovery was to be suffered to the uses expressed in the deed. The next step taken, was an attempt to make a tenant to the prcecipe. For this purpose, Newark executes a deed to Guthrie, in fee simple ; which, after reciting Newark's title, states that Newark, for barring all estates tail, and remainders in tail, in the premises, and for settling and assuring the same ; in considera- tion of five shillings, bargains and sells to Guthrie, his heirs and assigns, to the intent and purpose that Guthrie shall and may be- come perfect tenant of the freehold, and stand and be seized thereof, until a common recovery, with single voucher, may be suffered of the same. So far the deed is intelligible ; and if it had gone on to provide for a recovery in which Guthrie should be tenant, and some other person demandant, it would have had some consistency : although such recovery against Guthrie, with single voucher, would not have barred the issue in tail. The true way would have been with double voucher: namely, Guthrie to 1835.] OF PENNSYLVANIA. 154 (Lee v. Conard.) vouch Newark, and Newark the common vouchee. Instead of this, it goes on to provide that Guthrie should be the demandant, and Newark the tenant ; the recovery * to enure to the r*i c c-i use of Guthrie in fee. When the granting part of the ^ deed, and its declared and sole object and intent, are directly at variance with the mode pointed out of carrying that object into effect, it is impossible to give it any effect, unless we can recon- cile contradictions. And this is more especially true, in regard to a deed to make a tenant to the prcecipe, who is always con- sidered a mere instrument to effectuate the intention of the par- ties. 1 Burr. 117. This deed, therefore, was an abortive effort, and in its effect and operation, a mere nullity. No recovery, according to its declared intent, was ever attempted to be suffered against Guthrie, as tenant ; on the contrary, he by his writ of entry and proceedings, subsequently admitted the freehold and seisin to be in Newark, and recovered them against Newark ; and was thereby for ever estopped, as party to that recovery, to set up any adverse title by virtue of this deed, against those who purchased from him. That being the case, the recovery is duly suffered, so as to bar the issue in tail, by Newark, as tenant to the writ of entry, with single voucher, he being seized .of an estate in tail in possession. 2 Black. Com. 356 ; 1 Prest. Convey. 31. And it operates ac- cording to the uses expressed in the deed to Guthrie and wife, who, by their deed of the 19th of December, 1797, lawfully sold and conveyed the fee simple in the premises to Littler, under whom the defendant holds. Judgment reversed. Cited by Counsel, 4 Watts & Sergeant, 194 ; 7 Id. 98 ; 10 Barr, 499 ; 4 Harris, 379 ; 11 Id. 239 ; 12 Id. 170, 245 ; 2 Casey, 128 ; 6 Id. 167, 172 ; 13 Wright, 343 ; 1 Grant, 62. Cited by the Court, 6 Watts, 21 ; 4 P. F. Smith, 151. [PHILADELPHIA, JANUARY 25, 1836.] LEE against CONARD, IN ERROR. Where the declaration, in an action on the case, alleged that the defendant wrongfully and unjustly sued out an execution upon a judgment which he had entered against the plaintiff, and by virtue thereof, wrongfully and unjustly caused the land of the plaintiff to be seized and sold, &c. ; knowing the judgment to be paid and satisfied ; it was held that evi- dence was not admissible to prove that the debt, for which the judgment had been entered, was paid before the entry thereof. 155 SUPREME COURT [Dec. Term, (Lee t>. Conard.) UPON a writ of error to the District Court for the city and county of Philadelphia, the case was thus : To June Term, 1838, of that court, Cornelius Conard brought f*15Cl * an ac ^ on on * ne case against William Lee, in which J the following declaration was filed. " Philadelphia county, 88. " William Lee, late of Philadelphia county, yeoman, was sum- moned to answer Cornelius Conard of a plea of trespass on the case, &c. And, whereupon the said Cornelius Conard by Jesse Conard his attorney complains, that whereas, before the committing of the grievances by the said William Lee, hereinafter mentioned ; the said William Lee did, on the 30th day of July, 1831, cause and procure a certain judgment to be entered upon the record of the court of Common Pleas of the county of Chester, against the said Cornelius Conard, and in favor of the said William Lee, for the sum of one thousand and ninety dollars, money of the United States of America, debt, besides costs, &c. And, whereas, before and at the time of the committing of the grievances by the said William Lee, as hereinafter mentioned, the mid judgment had been fully paid and satisfied: yet the said William Lee, well knowing the premises, but contriving and wrongfully and unjustly intending to injure and aggrieve the said Cornelius Conard in that behalf, heretofore, to wit, on the 30th of July, 1831, caused and procured a certain writ of fieri facias to be issued out of the court of Common Pleas of the county of Chester, founded upon and under color and pretence of the said judgment, and whereby the sheriff of the county of Chester aforesaid, was directed to levy on the goods and chattels, lands and tenements of the said Cornelius Conard, in the bailiwick of the said sheriff, as well a certain debt of one thousand and ninety dollars, as also seventy-two shillings damages, and that the said sheriff should have those moneys be- fore the judges at West Chester, at the county court of Common Pleas, there to be held the first Monday in August next ensuing ; and then and there wrongfully and injuriously caused and procured the said writ of fieri facias to be endorsed to the said sheriff, to levy six hundred and nineteen dollars and two cents, as due upon the said judgement, besides sheriffs poundage, officers' fees, and other incidental, expenses ; and afterwards, to wit, on the 30th of July, 1831, wrongfully and unjustly caused and procured the said writ of fieri facias, so endorsed, to be de- livered to Oliver Alison, Esq., then sheriff of the said county of Chester ; and then and there caused and procured certain lands and tenements of him the said Cornelius Conard, in the bailiwick of the said sheriff to be seized, taken in execution, condemned 1835.] OF PENNSYLVANIA. 156 (Lee v. Conard.) and subjected to sale under color and pretence of the said writ for the said sum of six hundred and nineteen dollars and two cents, besides sheriff's poundage, officers' fees, and other inci- dental expenses. And the said Cornelius Conard, by his attorney further com- plains. That whereas, before the committing of the grievances by the said *William Lee, hereinafter mentioned, the said p,^ ^-. William Lee did on the 30th day of July, 1831, cause L and procure a certain other judgment to be entered upon the record of the court of Common Pleas of the county of Chester, against the said Cornelius Conard, and in favor of the said William Lee, for the um of one thousand and sixty dollars, money of the United States of America, debt, besides costs, &c. And, whereas, before and at the time of the committing of the grievances by the said William Lee, hereinafter mentioned, the said last mentioned judgment had also been fully paid and sat- isfied: yet the said William Lee well knowing the premises, but contriving and wrongfully and unjustly intending to injure and aggrieve the said Cornelius Conard in that behalf, heretofore, to wit, on the 30th of July, 1831, wrongfully and unjustly caused and procured a certain writ of fieri facias to be issued out of the court of Common Pleas of the county of Chester, founded upon and under pretence of the said judgment, and whereby the sheriff of the county of Chester aforesaid was directed to levy the goods and chattels, lands and tenements of the said Corne- lius Conard, in the- bailiwick of the said sheriff, a certain sum of one thousand and sixty dollars debt, and seventy-two shillings damages, and that the said sheriff should have those moneys before the judges at West Chester, at the county court of Com- mon Pleas, there to be held the first Monday in August next ensuing ; and then and there wrongfully and injuriously caused and procured the said writ of fieri facias to be endorsed to the said sheriff, to levy six hundred and one dollars and ninety-nine cents, as due upon the said judgment, besides sheriff's poundage, officers' fees, and other incidental expenses : And afterwards, to wit, on the 30th day of July, 1831, wrongfully and unjustly caused and procured the said writ of fieri facias so endorsed as aforesaid, to be delivered to Oliver Alison, Esq., then sheriff of the said county of Chester, and then and there caused and pro- cured certain lands and tenements of him, the said Cornelius Conard, in the bailiwick of the said sheriff, to be seized, taken in execution, condemned and subjected to sale under color and pretence of the said writ for the said sum of six hundred and one dollars and ninety-nine cents, besides sheriff's poundage, officers' fees, and other incidental expenses. Again, the said William Lee well knowing the premises, but contriving and VOL. i. 11 157 SUPREME COURT [Dec. Term, (Lee v. Conard.) fraudulently and unjustly intending to injure and aggrieve the said Cornelius Conard in that behalf, heretofore, to wit, on the 21st of November, 1831, wrongfully and unjustly caused and procured a certain writ of venditioni exponas to be issued out of the said court of Common Pleas of Chester county, whereby the sheriff of the said county was directed that the lands and tenements in form as aforesaid, seized and taken in execution by virtue of the fieri facias, aforesaid, without delay, he should expose to sale, and the money mentioned in the fieri facias afore- said, should have before the judges at West Chester, at their T*1 ^81 coun ty court of Common * Pleas, on the last Monday of January then next ensuing*, and then and there wrongfully and injuriously caused and procured the said writ of venditioni exponas to be endorsed to the said sheriff to levy five hundred and fifty-five dollars and sixty-two cents, as due upon the said writ, besides costs, &c., and afterwards, to wit, on the 21st November, 1831, wrongfully and unjustly caused and pro- cured the said writ, so endorsed as aforesaid, to be delivered to Peter Osborne, Esq., then sheriff of the said county of Chester, and then and there caused and procured the lands and tenements of him the said Cornelius Conard, in the bailiwick of the said sheriff, so as aforesaid seized and taken in execution, condemned and subjected to sale by virtue of the fieri facias aforesaid, to be sold to Thomas Davis, of the county of Chester, for the sum of one thousand seven hundred and sixty-six dollars, and for a much less sum of money, to wit, the sum of one thousand five hundred dollars, less than the same tenements were really worth, whereby the said Cornelius Conard lost his lands and tenements aforesaid ; and the said Cornelius Conard, in order to obtain the money arising from the sale of the said lands and tenements upon the said venditioni exponas, was forced and obliged to pay and did pay a large sum of money, to wit, the sum of one thousand dollars, &c. Wherefore the said Cornelius Conard saith that he is worse and hath damage to the amount of three thousand dollars, and therefore he brings his suit, &c. JESSE CONARD, Attorney" To this declaration the defendant pleaded " not guilty, with leave to give the special matter in evidence," &c.; and issue being joined, the cause came on for trial on the 18th of December, 1834. The plaintiff's counsel in his opening, stated that the plaintiff formerly resided in Chester county, in the state of Penn- sylvania ; that in the month of March, 1829, he purchased from the defendant a farm in Cape May county, New Jersey, for the price of two thousand five hundred dollars, of which he paid five hundred dollars in cash and gave his bonds for the remaining two 1835.] OF PENNSYLVANIA. 158 (Lee v. Conard.) thousand ; one bond payable in six months,* one in twelve months, one in eighteen months, and one in twenty-four months ; each for five hundred dollars ; payable with interest, and dated the 25th day of March, 1829 ; that the plaintiff also gave the defendant four notes drawn by himself and endorsed by John Conard, cor- responding with the said bonds, and that the defendant gave the plaintiff a written agreement, stating the whole transaction, and stipulating that as the notes were severally paid, the correspond- ing bond should be cancelled and given up : that the first three notes were paid and taken up when due : that the third note was paid and taken up by the plaintiff's agent, John Conard, but was afterwards given by Richard Pryor to the defendant, to be held by him as collateral security for the payment of another note drawn by the defendant for the accommodation of * John ^^ e q1 Conard, but with which the plaintiff had nothing to do ; L the object being to obtain the ' defendant's consent to the re- newal of John Conard's note : that under the judgments entered by the defendant upon the bonds, the sheriff had sold the plain- tiff's land for at least one thousand dollars under value : that rules were obtained by the plaintiff, (Conard,) to open these judgments which were made absolute, whereupon declarations were filed, pleas entered, and the cases put on the trial list, and that when they were reached for trial, the defendant (Lee) suffered a nonsuit. The plaintiff's counsel having offered evidence accordingly, the defendant's counsel objected to its admission on the ground that it did riot support either count in the declaration ; but the court permitted the evidence to be given ;' and the defendant's counsel tendered a bill of exceptions. The plaintiff having given in evidence the original agreement of the parties, and the promissory notes drawn by the plaintiff and endorsed by John Conard, examined Richard Pryor ; 'who testified in substance, that, on the 17th of May, 1831, he gave to the defendant Lee, the plaintiff's note for 530 dollars, telling him at the time that it was one of the notes for the Jersey farm, which had been paid, and that he (the witness,) gave it to him as a col- lateral security, for the purpose of getting him to sign the note for 275 dollars for John Conard. That he received the note for 530 dollars from John Conard, and had no authority from Conard to deliver it to the defendant. That in February, 1832, he ten- dered the amount of John Conard's note to the defendant, and demanded of him the plaintiff's note for 530 dollars, which he re- fused to give up. The witness stated other circumstances in sup- port of the allegations of fraudulent intent or malicious motives. Witnesses were also examined to prove the value of the land which had been sold under the executions. The plaintiff then 159 SUPREME COURT [Dec. Term, (Lee v. Conard.) gave in evidence the records of the Court of Common Pleas of hester county, showing the entry of the two judgments in favor of William Lee against Cornelius Conard, by virtue of two several warrants of attorney. Each judgment was entered on the 30th of July, 1831 ; one being for 1090 dollars; the penalty of a bond for 545 dollars ;. the other being for 1060 dollars, the penalty of a bond for 530 dollars ; each bond being dated the 25th of March, 1829. The proceedings on these judgments were as follows: . 1. On the judgment for 1090 dollars a fieri facias issued on the 30th July, 1821, to August Term, 1831, No. 37, endorsed to levy $619 02, with interest from the 30th July, 1831, and costs. Upon this fi. fa. an inquisition was held, and the land condemned. A venditioni exponas issued to October Term, 1831, No. 32, en- dorsed in like manner. On the 8th of November, 1831, on mo- tion of Mr. Bell, the court granted a rule to show cause why the f*1 601 judgment in this *case should not be opened and the de- -I fendant permitted to take defence ; proceeding upon the execution to stay in the mean time. On the 13th of December, 1831, the rule was by consent made absolute. A declaration was then filed to which the defendant on the same day pleaded pay- ment with leave, &c. : and on the 9th of May, 1833, on motion of the defendant's counsel, a nonsuit was ordered, according to the act of Assembly. 2. On the judgment for 1060 dollars, a fieri facias issued on the 30th of July, 1821, to August Term, 1831, No. 38, endorsed to levy $601 99, with interest from the 30th of July, 1831, and costs. To this writ the sheriff returned "lands levied on and con- demned." On the 21st of November, 1831, a venditioni exponas issued to January Term, 1832, No. 21, endorsed to levy $555 22, with interest and costs as before. It appeared by the docket en- tries, that on the 13th of December, 1831, on motion of Mr. Bell, and affidavits filed, the court granted a rule to show cause why this venditioni exponas should not be set aside ; proceedings to stay in the mean time ; which rule was returnable on the 16th of January following. On the 27th of December, however, the sheriff sold the land of Conard, under this writ, for the sum of 1760 dollars, (subject to a mortgage of 1317 dollars, with interest, in favor of Rebecca Williams, to be paid at the death of Mary Williams.) On the 3d of February, 1832, exceptions were made to the sheriff's sale ; and on motion of Mr. Bell, a rule was granted to show cause why the sheriff's sale should not be set aside ; which rule, on the llth of April, 1832, was discharged; and on the 15th of April, a rule was granted upon the sheriff to bring into court the balance remaining in his hands, after discharging the execution, No. 39, to August Term, 1831. Various proceed- ings then took place respecting the distribution of the proceeds 1835.] OF PENNSYLVANIA. 160 (Lee v. Conard.) of sale, which it is not material here to state. It appeared, also, by the record, that on the 18th of January, 1832, on motion of Mr. Bell, and affidavit filed, the court granted a rule to show cause why the judgment should not be opened, and the defendant let into a defence ; upon this rule proceeding similar to those in the first mentioned judgment took place ; which ended in a non- suit on the 9th of May, 1833. The plaintiff having gone through this evidence ; the defendant's counsel asked the court for a non-suit, upon the ground that the case contained and set out in the declaration, had not been proved ; which the court declined to grant. The defendant then went into evidence of the value of the property, and produced the bonds and mortgage, and also the record of another judgment by Will iam Lee against Cornelius Conard, to the same term, for the sum of 1030 dollars, upon Avhich a fieri facias issued on the 30th of July, 1821, to August Term, No. 39, endorsed to levy $583 59, with costs and interest as in the other cases, and which was in the hands *of the sheriff at the same time with the writs r*-i-n Nos. 37 and 38, and used for the condemnation of the *- property. The record also showed, that satisfaction was acknowl- edged of this judgment on the 8th of May, 1833. The evidence having been closed on both sides, the defendant's counsel requested the court to charge the jury : " 1. That the case as set out in the declaration, is not supported by the proof adduced. "2. That to maintain the action, it is necessary to prove both malice and want of probable cause, as well as particular special damage. "3. That malice is not necessary to be inferred from the want of probable cause, and whenever opportunity is given to apply to the court from which the process issues, malice is never to be inferred. " 4. That it was in the power of Cornelius Conard, and it was his duty to have applied to the court in this case, at the Novem- ber Term, 1831, to open both judgments and set aside both exe- cutions ; and it was still more his duty to have given notice to the sheriff of the order of the court to stay proceedings, of the. 13th December, 1831 ; and having failed to do so, the damage of which he complains, was the result of his own negligence ; and he cannot maintain this action. "5. That probable cause upon facts admitted or proved, is a question of law for the court ; and the testimony of Richard Pryor, Jr., does not preclude the probability that Mr. Lee supposed he had the right to hold the $530 note, as he originally held it, with the collateral security of the bond then in his hands ; and while there is room for such a probability left by the evidence, this action does not lie. 161 SUPREME COURT [Dec. Term, (Lee v. Conard.) "6. That the suffering a non-suit is no evidence of malice or want of probable cause. "7. That the condemnation under the first and second judg- ments, shows no special damage ; because there was at the same moment, a condemnation under a valid and admitted judgment, and according to all the proofs in the case*, adequate ground for condemnation, independently of the first judgment. "8. That it was essential that the plaintiff should have proved that the lands and tenements mentioned in the declaration, were, at the time of the sale, the lands and tenements of him, the said Cornelius Conard ; that before the jury find for the plaintiff, they must be satisfied that the said lands and tenements were the lands and tenements of the plaintiff, and that there has been no evidence of that fact." The presiding judge, after stating the action and pleadings, pro- ceeded to charge -the jury as follows : T*1 fi21 * " ^ e defendant's counsel contend that this action in its character is highly penal, imputing to the defendant great impropriety of conduct ; and that as is the law in criminal cases, all presumptions are in favor of his innocence, to be rebut- ted, only by direct and positive evidence. The plaintiff must make out his case by clear and undoubted evidence. If he shall have failed to establish to your entire satisfaction, any one essential fact in the cause, he is not entitled to your verdict. " I shall notice in the course of my observations to you, the several points of law made by the defendant's counsel ; but it will aid your inquiries to have the law applicable to the evidence in this case stated in a single proposition, and it is this: If the de- fendant, William Lee, knowing that the judgment bonds in ques- tion had been paid to him, afterwards proceeded, by means of legal process founded upon them, to injure the plaintiff, to sell his land, with the fraudulent intent of obtaining an unjust advantage to himself, by compelling a second payment ; or with the malicious intent of injuring the plaintiff, this action lies ; and there is no matter of law objected in the case, that will prevent your giving a verdict for the plaintiff. You will observe that it is essential to the plaintiff's cause, that he should prove to your entire satisfac- tion, not only that the judgments, and the bonds in question, were fully paid, and that the defendant knew of their payment before taking out execution, but also, that the defendant sold the plain- tiff's property with the fraudulent intent of obtaining a second payment of the debt, or with the malicious motive of injuring the plaintiff. "Before entering upon an examination of the evidence, I will dispose of some points of law, made by the counsel. The plain- tiff's evidence goes to prove that the bonds in question, if paid at 1835.] OF PENNSYLVANIA. 162 (Lee v. Conard.) all, were paid before judgments were entered. The declaration states that the judgments were paid. The defendant's counsel took the earliest opportunity of objecting to any evidence of pay- ment of the bonds, before the judgments were entered, and have repeated these objections. These judgments were entered under warrants of attorney accompanying the bonds. If the bonds were paid, the rightful authority to enter judgments upon them ceased, and the judgments thus improperly entered, it is said, were paid jugments. This, however, is matter of law, and I need not observe upon it. It is enough for me to say, in my directions to you on this point, that the declaration is sustained by proof that the bonds were paid, before the judgments were entered upon them. So, also, as to the time of the inquisition and sale. The declaration states the condemnation under the fieri facias to have been the 30th July, 1831. It was 15th Sep- tember, 1831. The sale under the venditioni exponas, to have been 21st November, 1831. It was December 27th, 1831. These variances between the evidence and the declaration, are not material. *" The declaration is supported by the proofs adduced. ^^ -. ( Answer to the first point.*) " The defendant's counsel are right in saying in their eighth point ' it was essential that the plaintiff should have proved that the lands and tenements mentioned in the declaration were at the time of the sale the lands and tenements of him the said Corne- lius Conard that before the jury find for the plaintiff, they must be satisfied that the said lands and tenements were the lands and tenements of the plaintiff.' But they are wrong in saying 'that there has been no evidence of that fact.' There is, in point of law, evidence in the cause which will justify you in finding that they were. {Answer to the eighth point.') " The defendant's seonnd point is law, ' To maintain this action it is necessary to prove both malice and want of probable cause, as well as particrlar special damage.' And now as to the facts ; were the bonds, the judgments in question fully paid, and did the defendant know that they were, before executions were issued by him upon them ? This is the first matter of inquiry." After stating the agreement between the parties, the mortgage, bonds, and notes the judgments entered by warrant of attorney on the bonds, the fieri facias and condemnation on each, the judge said, " Perhaps you will think there is satisfactory evidence that the bond on which the first judgment was entered, was paid, before judgment entered." After stating the venditioni on the second judgment No. 38 and the proceedings under it, the orders of court, declaration, plea of payment and nonsuit, the judge said, 163 SUPREME COURT [Dec. Term, (Lee v. Conard.) ' f " The defendant's sixth point is, * the suffering a nonsuit is no evidence of malice or want of probable cause.' I do not think, independent of Richard Pryor's evidence, that this bond, the second judgment, under which the plaintiff's property was sold, was paid. The defendant has in his possession, not only the mortgage and bond, but also the accompanying note for $530. This part of the plaintiff's case, therefore, must depend upon Richard Pryor's testimony. The non-suit, might, perhaps, be considered a circumstance in the cause, but without Pryor's evi- dence, the plaintiff must fail. I will, therefore, under the circum- stances, instruct you, as I am desired to do by the defendant's counsel, that ' the suffering a nonsuit is no evidence of malice or want of probable cause.' The fact of payment, in this view of the law, is made to rest exclusively, upon the testimony of Rich- ard Pryor. If you doubt his credibility, if his testimony, stand- ing by itself, does not establish to your entire and perfect satis- faction, that the bond in question, the second judgment, was paid to the defendant before he issued the executions in question, you will find for the defendant." After stating Richard Pryor's evidence relating to this matter of inquiry, the judge said to the jury, l~*1 fUT * y u are sa ti s fi e d f rom Poor's evidence, that the J bond, the second judgment under which the plaintiff's property was sold, was paid to the defendant before the execution issued, the next inquiry will be, what was the object, the motive, the intent of the defendant in selling the plaintiff's property under the execution ? " Pryor says, that the note for $530 accompanying the bond in question, was on the 17th of May, 1831, delivered by him to the defendant, to be held as collateral security for the payment of any note or notes which he, the defendant, might indorse for John Conard's accommodation. Taking the fact to be so, the defendant's counsel contend, that in fairness and common honesty, you are to presume that the defendant entered up the judgment on this bond, took out execution and proceeded to sell the plaintiff's land to indemnify himself against loss from his en- dorsements for John Conard, for which purpose the accompany- ing note was placed in his hands by Richard Pryor, as collateral security, in connection with the bond. Now, however much the defendant may have mistaken the law in the matter, if he, from honest motives and with a fair intent, took out execution, and sold the plaintiff's property for the purpose of indemnifying himself against his endorsements for John Conard ; believing or supposing that the deposit of the note in his hands by Pryor gave him the right to do so, the plaintiff cannot recover by reason of any damage he may have sustained. Or, in other 1835.] OF PENNSYLVANIA. 164 (Lee v. Conard.) words, and perhaps, as the circumstances are, in plainer lan- guage, you must find (if you give a verdict for the plaintiff) that the itttent of the defendant was unjust gain to himself, by de- nying the payment, and attempting to compel by means of the execution a second payment of the debt ; or that he was influenced by sheer malice against the plaintiff. These observations apply to defendant's fifth point." After stating the evidence relating to this matter of inquiry, the judge said, " If you find the intent of the defendant in taking out the exe- cution and selling the plaintiff's property under it, to have been unfair and dishonest, that his object was fraudulently to compel a second payment of the debt by means of the execution, and not to indemnify himself against his endorsements for John Conard, then your next inquiry will be as to damages. I intend to say a few words to you on this point, but before doing so, I will dispose of the defendant's points. The first and second points, I have already answered. As to the third point, ' malice is not necessarily to be inferred from the want of probable cause ;' but it may be inferred, although * opportunity is given to apply to the court, from which the pro-, cess issued.' The direct answer to the defendant's fourth point, is that the plaintiff can maintain this action. I have already observed upon these allegations. They are circumstances in the cause, and if the *plaintiff purposely lay by, and omitted to apply to r* 155-1 the court for protection, or to avail himself of that pro- tection when granted, with a view to this action, or from any sinister motive, we would disappoint his expectations of damages. There is, from the evidence, no sufficient ground to say that he did. (Fifth point.) I have, I believe, substantially answered the defendant's fifth point. Probable cause, upon facts admitted or proved, is a question of law for the court ; but questions of law rest upon facts and not upon probabilities. It is a question of fact, what right William Lee supposed he had to the note.^ The sixth point I have noticed. The seventh point is right The eighth point I have answered." He then stated to the jury the questions of fact ; confined their inquiries to the second count in the declaration ; and said : " It appears to me, that under the circumstances, it would be fair that you should fix the value of plaintiff's property at the highest price he could have obtained for it, at private sale ; deduct from that sum the price which it brought at the sale in question ; add interest upon the balance, together with the plaintiff's actual personal expenses, the costs' and charges which he incurred for 165 SUPREME COURT [Dec. Term, (Lee v. Conard.) his witnesses in attending upon the court on the several hearings of the rules, and reasonable compensation for fees to his attor- neys. All beyond full compensation for the injuries actually sus- tained, has been called in the argument, vindictive damages. To such damages I have always been opposed, and shall look upon a verdict for vindictive damages with disfavor. You have the power to give exemplary damages ; but you are to consider and say if you will do it." The jury having found a verdict for the plaintiff, with $2,850 damages, the defendant removed the record to this court, and as- signed the following errors: " I. The case, as set out in the declaration, was not sustained by the evidence ; because there was no evidence of malice or want of probable cause, nor the best evidence within the plaintiff's power, nor sufficient evidence of the payment of the note accom- panying the bond upon which the judgment named in the second count of the narr. was entered ; nor any evidence of the pay- ments as averred in the narr. ; nor any evidence of the issuing of execution, levy, condemnation and sale as averred ; nor was there any evidence that the plaintiff had any title to the lands and tene- . ments mentioned in his narr. II. If the defendant had not sufficient cause to proceed as com- plained of in the narr., yet the plaintiff having neglected to avail himself of the interposition of the court, the defendant is relieved from the imputation of malice, and not liable in damages by reason of any thing alleged or proved. F*1fifiT *IH- The defendant was not liable to any damages, because there were no damages proved to have been sus- tained in the condemnation or by the sale ; nor could there have been any damage done to the plaintiff by reason of the proceed- ings complained of in the narr. because the other and undisputed incumbrances must have worked a condemnation, and procured a sale of the land ; moreover, the plaintiff wholly failed to prove he had any title to the land sold, and omitted to exert a rule which he obtained, in time to set aside the writ under which the sale was made, with a special order for proceedings to be staid thereon, by neglecting to give the defendant or the sheriff notice thereof ; and also because said judgments were known to, and it was in the power of the plaintiff to have prevented any measures thereon before the sale, by an application to the court to open said judgments. IV. There was not the best evidence of which the case was sus- ceptible, nor was there sufficient evidence of the payment of the note accompanying the bond upon which the judgment named and complained of in the second count of the narr. was entered ; and without sufficient and full proof of this fact, the defendant had 1835.] OF PENNSYLVANIA. 166 (Lee v. Conard. ) such a probable cause of action as will relieve him from the charge of a want thereof, and also of malice. V. The judge erred in permitting the plaintiff to prove the matters stated in his opening, because they were wholly different from those complained of by the narr. ; and also in permitting the plaintiff to give in evidence the written agreement under date of March 25, 1829 ; and also in permitting plaintiff to give in evidence the notes ; and also in permitting R. Pryor, Jr., to give evidence of the matters he affirmed to ; and also in permitting the plaintiff to put in evidence the copies of the records of the court of Common Pleas of Chester county ; and also in charging the jury that if it appeared to their satisfaction that the notes connected with the bonds upon which the judgments named in the narr. were entered, had been paid, there was no point made by the defendant that would prevent them from giving damages against the defendant ; and also in charging the jury that if the notes were paid as alleged, it was sufficient evidence of the pay- ment of the bonds as declared, and that the variance between the evidence of the time of issuing executions, condemnation and sale, and the time laid in the narr., was immaterial; and that the plaintiff did own the land at the time of the sale ; and that the plaintiff had paid the defendant $500 in cash when he bought the Jersey farm of the defendant ; and in not charging the jury upon the fifth point submitted by the defendant for a charge ; and in charging the jury that the fourth point did not bar this action : and that it did not appear that the plaintiff knew of the second venditioni exponas before the sale ; and that they might, in meas- uring the damages, allow the plaintiff full price for the land, actual expenditures, and all the incidental expenses of his wit- nesses, *and full and reasonable compensation for his r*ig7i attorneys, and interest thereon." Mr. Brewster, for the plaintiff in error, argued, 1. That the evidence ought not to have been admitted by the judge below, because it was not in conformity with the declaration. 2. That the charge of the judge was erroneous. He cited Dixon v. Thompson (2 Shower, 246 ;) Purcel v. M'Namara, (8 East, 361 ;) Anon. (6 Mod. 73 ;) HutcUnson v. Brodie, (Cro. Jac. 133 ;) Cro. Eliz. 836 ; 1 Bos. & Pull. 205 ; 12 Petersdorff, 419; Johnson v. Sutton, (1 Term Rep. 545; Davis v. Hardy, (13 Eng. Com. Law Rep. 152 ; 6 Barn. & Cress. 225 ;) Munro v. Dupont, (3 Wash. C. C. Rep. 31 ;) Ray v. Low, (1 Peters' C. C.Rep. 207 ;) 2 Dane's Abridgement, 723 12, 724 8, 726 6 ; 4 Mass. Rep. 433 ; 3 Hen. & Munf. 260 ; 11 Mass. Rep. 50; Douglas' Rep. 215; 2 Term Rep. 225; 2 Wilson, 210 ; Oliver's Precedents, 126, 369 (n), 372 (n). 167 SUPREME COURT [Dec. Term, (Lee v. Conard.) Mr. Conard and Mr. Tilghman contra. The opinion of the court was delivered by KENNEDY J. Several errors have been assigned, one of which, only, appears to be sustainable. The others are so totally desti- tute of even plausibility, that it is unnecessary to notice them otherwise than to pronounce their entire want of every thing that can present itself to the consideration of a court of error, as a ground for relief. The error that we are inclined to consider fatal, is founded on the exception to the opinion of the court, in admitting the testimony of Richard Pryor, to prove that the bond given to secure the payment of the debt, for which the judgment had been entered, in virtue of a warrant of attorney thereto an- nexed, was paid before the entry of the judgment. The question then is, did this evidence tend to support the averments contained in the plaintiff's declaration ? Because if it did, it was rightly admitted ; but if it did not, then it ought to have been rejected. In regard to this point, there is no rule better established, than that the probata ought to agree with the allegata. Now, what is it that the plaintiff has alleged, as to this, in his declaration. He, in substance complains, that the defendant wrongfully and un- justly sued out an execution upon a judgment which he had against the plaintiff, after it had been actually paid ; and by virtue thereof wrongfully and unjustly caused the land of the plaintiff to be seized and sold at $1500 less than its real value. But the evidence offered and admitted, was not to show that the judgment had been paid, but that the debt for which the judgment had been entered, was paid, before the entry thereof. This was cer- tainly not in accordance with the plaintiff's allegation. For, although it might be making out a more aggravated case of in- F*1fi8~l J ur y ^ an ^ at se ^ f r th * n his declaration, still it *was not in terms nor yet in substance the same : Because, by his declaration, he seems to admit the correctness and justness of the judgment originally, but alleges that it had been paid, and therefore it was wrong and unjust in the defendant to sue out the execution upon it, and to cause his, the plaintiff's land, to be sacri- ficed or sold for $1500 less than its value. The plaintiff having thus admitted that the judgment was properly entered, it is clear that the defendant had no occasion to come prepared at the trial, to maintain it to be so. It was sufficient, in order to meet the allegation of the plaintiff, that the defendant came prepared to show, that the judgment had not been paid or satisfied at any time after it was entered, and previously to suing out the execu- tion and making sale of the land under it. But the evidence of Pryor, instead of going to support the allegation that the judg- ment had been paid, went to prove that the debt for which it was 1835.] OF PENNSYLVANIA. 168 (Lee v. Conard.) entered, had been paid prior to the entry thereof; and that the authority originally given for entering the judgment, had thereby been revoked, and that the judgment was therefore to be consid- ered a nullity. To say the least of it, this was presenting the case in an aspect quite different from that given to it in the declaration. That it is materially different, too, was decided by this court at the last term at Pittsburg, in Braddy v. Brownfield, which will be reported in 4 Watts ; where, in an action founded upon our act of Assembly, against a plaintiff in a judgment entered in his favor on a judgment bond, for not entering satisfaction in the prothono- tary's office, where the judgment existed, after being paid the amount thereof, it was ruled that evidence going to show that the debt or bond had been paid and satisfied before the entry of the judgment, was properly rejected by the court below, on the trial of the cause. It being thus settled, that the payment or satisfac- tion of a debt mentioned in a judgment bond, before the entry of a judgment upon it, does not mean the same thing with the pay- ment or satisfaction of the judgment after it is entered ; the de- fendant in the present case, had no reason to expect that such evidence as that of Pryor's would be offered, or if offered, that it would be received, and, therefore, was not bound to come prepared to encounter it. If the plaintiff's case really be, that the debt was paid prior to the entry of the judgment upon which the exe- cution was sued out and the land sold, then, instead of insisting upon having his evidence admitted, he ought first to have had his declaration aniended by leave of the court. This, I presume, the court would have permitted him to do, so as to meet the evidence ; but, then, the defendant, if not prepared to answer to the declara- tion in its amended form, woulcThave been entitled to the costs of the term, and a postponement of the trial until the succeeding term. It may be also, that the declaration is defective in not stating that the proceeding of the defendant, complained of by the plaintiff, was done maliciously, and with an intent to injure and oppress, $c. Groslin *v. Wilcock, 2 Wils., 305, p^ggi instead of stating it as it is, to have been done wrong- fully and unjustly, with intent, &c. As this, however, has not been assigned for error, it is unnecessary to express an opinion upon it. The judgment is reversed, and a venire de novo awarded. 169 SUPREME COURT [Dec. Term, [PHILADELPHIA, JANUARY 26, 1836. ] THE BANK OF WILMINGTON, &c., against ALMOND and Others. IN ERROR. A., B., C. and D., copartners under the firm of A. & Co., gave their pro- missory note to the plaintiffs. Afterwards the partnership was dissolved by the retirement of A., the business being continued by the others, under the firm of B. & Co. ; and a bond of indemnity was given by them to A. against the debts of the old firm. The firm of B. & Co. failed, and executed an assignment of their effects in trust for the payment of their creditors ; and a release of all demands was executed by the creditors, among whom were the plaintiffs, who received a dividend from the assignees, on the note of A. & Co. Held, that by these acts of the plaintiffs, A. was discharged from his liability to them. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of assumpsit brought by the bank of Wilmington and Brandy- wine against William Almond, William Warner, John Torbert, and Lewis Summerl, lately trading under the firm of William Almond & Co. The action was founded on a promissory note drawn by the defendants, Almond, Warner, Torbert, and Summerl, as co- partners, under the firm of William Almond & Co., in favor of the plaintiffs, for $1180, dated July 1st, 1822, payable two years after date. The suit was commenced by capias to December term, 1824, to which a return of "C. C. & B. B. as to William Almond & N. E. I. as to the other defendants," was made. An alias capias issued to March term, 1825, and return made, C. C. & B. B. as to Lewis Summerl, & N. E. I. as to the other defendants. The defendants, Almond and Summerl, who had been brought in, signed an agreement for judgment in favor of the plaintiifs, "for the sum of $1248 78, on the 17th of June, 1825, as on an award of arbitrators of that date;" which agreement was filed and judgment entered on the 14th of March, 1826. On the 28th of March, 1826, the defendant, Almond, by his counsel, upon affidavit filed, obtained " a rule to show cause why r*17(Yl judgment * should not be opened, and the defend- ants let into a defence ;" which rule was made absolute, and the judgment opened on the 5th of December, 1826. Upon the trial of the cause, the plaintiff gave in evidence the promissory note in question, and there rested his case. The defendant, Almond, by his counsel, in defence gave the following matters in evidence, viz: 1835.] OF PENNSYLVANIA. 170 (Bank of Wilmington v. Almond.) A notice of the dissolution of the firm of William Almond & Co., published in the American Watchman, and Delaware Adver- tiser of Wilmington, (Del.) of April 1st, 1823, as follows: Dissolution of Partnerships. The partnership of William Almond & Co. is this day dissolved by mutual consent. All persons having accounts with them, will call on Lewis Summerl & Co., at the factory, for settlement. WILLIAM WARNER, JOHN TORBERT, WILLIAM ALMOND, LEWIS SUMMERL. " The business of the Nemours Cotton Mill, on the Brandywine, will be continued by the subscribers, under the firm of Lewis Summerl & Co. WILLIAM WARNER, JOHN TORBERT, LEWIS SUMMERL. Nemours Cotton Mils, March 28, 1823." The defendant then gave in evidence a bond of indemnity in the penal sum of $10,000, dated the 22d day of March, 1823, from Warner, Torbert, and Summerl, to Almond, reciting, that " Whereas the said William Almond, William Warner, John Torbert and Lewis Summerl, heretofore formed a partnership under the style of William Almond & Co., and carried on the business of cotton spinning, in a cotton mill formerly known by the name of Hagley's Cotton Factory, and since called Nemours Cotton Mill, which Eleuthere Irene du Pont, Samuel M'Call, and Robert M'Call, by their deed, bearing date the twenty-eighth day of May, in the year of our Lord one thousand eight hundred and twenty-two, leased and demised to the said William Warner, John Torbert, and William Almond, for a certain term now unexpired ; and whereas the said William Almond has withdrawn from the said concern, and the said partnership has been this day dissolved by mutual consent, and the said William Almond hath, by a cer- tain instrument, under his hand and seal, bearing even date here- with, granted, assigned, and bargained and sold, all his interest, title, property and claim in the said lease, and in and to all of the goods, effects and *credits of the said partnership, and p-j^i-i in and to all contracts made with the same, subject to the debts, covenants, contracts and engagements thereof, and sub- ject, also, to the covenants and contracts in the said lease con- tained, to the said William Warner, John Torbert, and Lewis Summerl : and whereas, the said William Warner, John Torbert, and Lewis Summerl, have agreed to pay, and the said William Almond to receive, such sum of money as may be due to the said 171 SUPREME COURT \J)e?. Term, (Bank of "Wilmington v. Almond.) William Almond on the book of the said partnership, in manner following: that is to say, provided the said balance shall not exceed one thousand five hundred dollars, the same shall be paid in four equal installments, at the expiration of three, six, nine and twelve months, respectively, with lawful interest thereon, from the date hereof, but if the said sum shall exceed one thousand five hundred dollars, then one thousand five hundred dollars thereof shall be paid in four equal installments as aforesaid, and the residue thereof shall be satisfied by their promissory note, payable at sixty days after the date hereof: and whereas, the said William Almond hath agreed to continue in the service of the said William Warner, John Torbert, and Lewis Summerl, as manager and overseer of the said Nemours Cotton Mill, until the first day of July next, if they shall require him so long to act in the said capacity, and hath agreed to relinquish the salary, which the said partnership has heretofore stipulated to pay to him, and hath consented to receive of the said William Warner, John Torbert, and Lewis Summerl, for his services as such manager and over- seer, past and future, a salary at the rate of eight hundred dol- lars per annum, the said salary to commence at the expiration of six months after the commencement or formation of the aforesaid partnership of William Almond & Co., and to end whenever he shall be discharged by the said William Warner, John Torbert, and Lewis Summerl, the said William Almond thereby freely giving his services during the first six months after the commence- ment of the said partnership. Now the condition of this obligation is such, that if the said William Warner, John Torbert, and Lewis Summerl, do and shall well and truly pay all debts whatsoever, due from the said part- nership of William Almond & Co., and do and shall within one month after the date hereof, procure the said William Almond to be released from the aforesaid lease and demise, and from the rents and covenants therein reserved and contained, and do and shall, well and truly, keep, perform and fulfill, all and every the contracts, covenants and engagements made at any time hereto- fore, by, or on behalf of the said partnership, and shall save and keep harmless, the said William Almond from all such debts, rents, covenants, contracts and engagements, and from costs, charges and expenses, arising or accruing by reason of the same. And if the said William Warner, John Torbert, and Lewis Sum- merl, do and shall, well and truly, pay such sum of money as T*172T ma y ^ e ^ ue u P on ^6 books *of the said partnership to -I the said William Almond, to him in manner and form as hereinbefore recited to have been agreed on ; and if the said Wil- liam Warner, John Torbert, and Lewis Summerl do and shall, well and truly pay to the said William Almond, for his past and 1835.] OF PENNSYLVANIA. 172 (Bank of Wilmington n. Almond.) future services as manager and overseer of the said Nemours Cotton Mill, the aforesaid salary, at the rate of eight hundred dol- lars per annum, to commence from the expiration of six months after the formation of the said partnership, and to end at the time when he shall he discharged from their service as aforesaid then the obligation shall be void and of none effect, or else shall be and remain in full force and virtue, in law." The defendant then gave in evidence an indenture, executed the 29th day of October, 1825, between William Warner, John Tor- bert, and Lewis Summerl, composing the firm of Lewis Summerl & Co. of the first part, William Seal and Joseph Grubb of the second part, and " all other the creditors of the said Lewis Sum- merl & Co., who shall have signed and sealed these presents, or who shall execute a release according to the terms thereinafter mentioned," of the third part, assigning "unto the said William Seal and Joseph Grubb, all and singular, the said machinery, stock and effects of said company, debts, sum and sums of money due or belonging to said firm," "in trust," (after deducting for rent, &c.) "to pay, apply, and appropriate all the said money arising from the said assigned premises, to and among all such of the creditors of the said William Warner, John Torbert, and Lewis Summerl, trading under the firm of Lewis Summerl & Co., in equal proportions, &c., as shall, within sixty days after the date of these premises, fully and absolutely release the said Lewis Summerl & Co. from their respective debts." The defendant then gave in evidence an instrument, dated No- vember 18th, 1825, and executed by the " creditors of William Warner, John Torbert, and Lewis Summerl, cotton manufacturers on the Brandywine, under the name and firm of Lewis Summerl & Co., which, after reciting the indebtedness of Lewis Summerl & Co., and their assignment "for the benefit of such of their credit- ors as shall sign and execute a release of their respective debts, at or before the expiration of sixty days from its date," of " all their copartnership, estate, real and personal, and outstanding debts of every description," "released and forever discharged the said William Warner, John Torbert, and Lewis Summerl, composing the firm of Lewis Summerl & Co. &c., on the Brandywine, in the State of Delaware, their heirs, executors, and administrators respectively, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, duties, sum and sums of money, accounts, reckonings, bills, specialities, covenants, agreements, contracts, promises, executions, claims and demands, whatsoever or wheresoever, in law or equity, which we, or either of us, *or our copartners now have, or may or can have, r*i 731 claim or demand, for or by reason of our several and respective debts or demands against them, or either of them, VOL. i. 12. 173 SUPREME COURT [Dec. Term, (Bank of Wilmington . Almond.) associated as aforesaid, for, upon, or by reason of any matter, cause or thing whatsoever, to the day of the date hereof, in their capacity as co-partners aforesaid" &c.; among which creditors was the Bank of Wilmington and Brandy wine, the plaintiffs in this action ; the name of John Wales, their president, being there- unto subscribed, and the seal of said bank affixed. The defendant further gave in evidence an exhibit of the set- tlement of the estate of Summerl & Co., in which it appeared that the assignees of said Summerl & Co. declared a dividend out of the fund assigned by Summerl & Co., in favor of the bank, on the notes of William Almond & Co., held by the bank, as well as on notes of Warner and Torbert to Lewis Summerl & Co., and by them endorsed, also held by the bank ; and a receipt signed by William Seal, then president of said bank, dated March 3d, 1830, for $1211 74, received of said assignees of Summerl & Co., "in full of the final dividend," being the aggregate of divi- dends on claims against Almond & Co. and Summerl & Co.; and here closed his case. The plaintiff then gave in evidence, as rebutting testimony, four promissory notes, the property of said plaintiffs, drawn by War- ner and Torbert in favor of Lewis Summerl & Co., and by them endorsed in favor of the plaintiffs, being the claim on which a div- idend was received by said bank, out of the estate of L. Summerl & Co.; and then closed his case. Whereupon the court charged the jury, in substance as follows : " The note on which this action is brought, was given by the firm of William Almond & Co. It has not been paid ; and the de- fendant is liable in this action, if he has not been discharged by the plaintiff. The dissolution of the firm of William Almond & Co. took place on or about the 1st of April, 1823 ; when all the copartners, except William Almond, entered into another co-part- nership, under the firm of Lewis Summerl & Co., and covenanted with Almond to pay the note in question. " The defendant alleges, that the bank to whom that note was given, the plaintiff in the action, at the time of the dissolution of the copartnership of William Almond & Co., agreed with the makers of this note, to look for its payment to the firm of Lewis Summerl & Co., and to release William Almond from all liability on it; and that this agreement was a prevailing reason with William Almond, for agreeing to the dissolution of the firm of William Almond & Co. " It is objected by the plaintiff, ' that the facts given in evidence are not proof of a substitution by the plaintiff, of the new firm for the old.' It is the opinion of the court, that they are evidence r*1741 u P on * which the jury would be justified in finding a ver- L J diet for the defendant. The case is with the defendant." 1835 ] OF PENNSYLVANIA. 174 (Bank of Wilmington v. Almond. ) To which charge, the plaintiff's counsel tendered his bill of ex- ceptions, which was sealed by the judge ; and thereupon prose- cuted this writ of error. The following errors were assigned : "1. The court erred in charging the jury that the facts were evidence upon which the jury would be justified in finding a ver- dict for the defendants. 2. The court erred in charging the jury that the case was with the defendants. 3. The court erred in taking the case from the jury." Mr. C. Grilpin and Mr. Sharswood for the plaintiff in error: 1. A release to three continuing members of an old firm, who have entered into a new co-partnership, does not discharge the withdrawing partner. Gow on Partnership, 78 ; Clement v. Brush, (3 John C. C. 180 ;) Lyman v. Clark, (9 Mass. Rep. 235.) The case of Heath v. Purcival, (1 Strange, 403,) strongly resembles this ; and the decision is in point. 2. There is no evidence of any intention to substitute the new firm for the old. The bank had a claim on the new partnership for other notes. The receipt may be explained on the ground of a collateral undertaking, or guarantee. The application by Almond to open the judgment in the court below, was on the technical ground, that the release of joint obligor discharges all. It is well settled, that the acts of partners, as between themselves, cannot vary their liability to creditors. Forrest v. Wain, (4 Yeates, 337 ;) Whiting v. Farrund, (1 Conn. Rep. 60 ;) Gow, 342 ; Collyer on pp. 327. The bank had no inducement in this case to discharge Almond ; and the instrument not being under seal, it is defective from want of consideration. Barker v. Blake, (11 Mass. Rep. 16 ;) Mortimer v. Caldwell, (Kirby, 53 ;) Smith v. Rogers, (17 John. Rep. 341 ;) Blew v. Wyatt, (5 Carr. & P. 399, 24 Eng. C. L. Rep. 378;) Latapie v. Pecholier, (2 Wash. C. C. Rep. 180 ;) Collyer, 324. Nothing but satisfaction or a release of Almond, can bar this action. 3. The court ought to have left the facts to the jury. Instead of which, they took the facts for granted, and drew inferences which the jury only were competent to do. Jones v. Wildes, (8 Serg. & R. 150 ;) Bank of Washington v. Triplett, (1 Peters' Rep. (Sup. Ct.) 25.) THE COURT declined hearing Mr. Owens, who was to argue for the defendant in error. *The opinion of the court was delivered by r*1751 GIBSON, C. J. The bank was not an original party 175 SUPREME COURT [Dec. Term, (Bank of Wilmington r. Almond.) to the arrangement between the members of the old firm ; and it was not, therefore, originally bound by it. But did it not become a party by taking a dividend, which it could not have claimed, except on the basis of the arrangement ? The assignment of the new firm transferred, but its partnership effects, and these, too, in trust to satisfy its own debts ; and a creditor of the old firm was consequently not entitled, in that character, to the benefit of the trust. Yet the bank actually came in ; and consequently, as a creditor of the new firm, by its assumption of the old debts, and subject to the conditions of the assumption. A principal one of these, as they appear in the bond of indemnity, was pay- ment of the old debts, and exoneration of the retiring partner by the new firm. For the performance of that, as well as every other part of the arrangement, they were firmly bound ; and it is not to be supposed they would have consented to let the bank in, on an equality with their proper creditors, and on terms that would have left them exposed to an action by their former partner. It is the equity of the new firm, which comes between the defendant and the bank, and brings to his rescue that princi- ple which forbids the enforcement of certain agreements, as a fraud upon third persons. By treating the note as a debt of the new firm, the bank recognized the terms of its assumption, and agreed to look, in accordance with them, to it only. This elec- tion to abide by the terms of the assumption, is the master key of the case ; for, without it, the release, which discharged the members of the new firm from no more than its own debts, could not be brought to bear on the present cause of action ; which would otherwise not be a debt, within the terms of the trust. On the principle indicated, the debt would be gone as to the defendant, by force of the arrangement, without aid from the release. The case of Heath v. Purcival, (Stra. 403,) has been relied on for the contrary ; but its circumstances show it to have been essentially different. One of the two partners, at the wind- ing up of the concern, had taken on himself the burthen of dis- charging the joint bonds ; and a bond creditor, having applied to him for payment, received a promise of more interest : subse- quent to which, the assuming partner became a bankrupt, and the obligee having taken a dividend under the commission, the latter brought a bill against the executor of the other partner, for a discovery of assets and payment of the residue. On these facts, it was held that the agreement was res inter alias acta ; which, as it could not prejudice the other partner who might have discharged himself by payment of principal and interest at the original rate, ought not to benefit him. A better reason might perhaps have been found, in the fact that a collateral agreement, such as that, was entirely consistent with a retention 1835.] OF PENNSYLVANIA. 176 (Bank of Wilmington v. Almond. ) of the original *debtors, who could be discharged but by r*-|7fl-i substituting the promise of the assuming partner, in L - J place of the bond. In our case, substitution was the basis of the superstructure. In that, the application to the assuming obligor, and consequent agreement for increased interest, neither sanctioned nor disaffirmed the arrangement between the partners. What, then, ;n addition, was the effect of taking a dividend under the commission, without reference to the terms of the arrangement ? Certainly not to discharge the other obligor, who had advantage, instead of prejudice, from it. But most certainly the result would have been different, if the debt had been made provable under the commission, exclusively, by the arrange- ment and assumption of the bankrupt ; for being the consid- eration of a benefit, the creditor would have been bound by the conditions of it. The absence of that feature essentially differs the case from the one at bar, in which the bank came in on the footing of a creditor of the new firm, exclusively, by virtue of an agreement between the defendant and the partners of that firm ; and it is bound to carry out every part of the arrange- ment which made it so. In Heath v. Purcival, the debt was not discharged, except as to the bankrupt ; here, if the note were so far the proper debt of the new firm, as to entitle it to a dividend under the assignment of that firm, it was also its proper debt so far as to bring it within the range of the release, which, though operating directly but to discharge the members of that firm, and even these but from its partnership debts, operated incident- ally to discharge the defendant also ; inasmuch as they would else have been answerable to him on their contract of indemnity. If the bank might have recourse to the defendant, as for a debt of the old firm, why not to the other drawers, who have been released from nothing but the debt of the new firm ? Every one would acknowledge the injustice of that, since the bank has been admitted to the benefit of treating the note as a debt of the new firm ; and if they are discharged from their own original liability, the defendant stands discharged, also, on the principle which makes the release of one joint debtor, the release of all.* In every direction, therefore, the course of the bank is beset with difficulties, which spring from the obligation of the bank to give full effect to its release, in the only way it can do so by giving full effect to the arrangment which produced it. Judgment affirmed. *See 8 Barr, 268 ; 10 Id. 402 ; 7 Casey, 461 ; 9 Id. 157 ; 12 Wright, 174. 177 SUPREME COURT [Dec. Term, [PHILADELPHIA, JAJTOABT 22, 1836.] [*177] BROWNING against McMANUS. IN ERROR. 1. Where it appears, by the record of the court below, that a case was re- ferrtud, under the act of 1705, to three persons, and that On a subsequent day, one of them having declined to serve, another person was appointed hi his place, it will be presumed in the absence of contradiction by the record, that the substitution was made with the consent of both parties. 2. Exceptions to an award, under the act of 1705, arising from alleged want of notice to the party making the exception, and the like, must be made in the court in which the action was brought, and will not be considered in this court. ERROR to the District Court for the City and County of Phila- delphia, to remove the record of an action, wherein Catharine McManus was plaintiff, and William Browning was defendant. It appeared, by the record returned in this case, that on the 2d of January, 1835, the case was referred, under the act of 1705, to Messrs. Coleman Fisher, Mordecai D. Lewis, and Wil- liam S. Torr. The next entry on the record is as follows : " March 6th. Coleman Fisher having declined to serve, Henry Manly was appointed referee ; in whose place, he being unable to attend on account of indisposition, John Elliott was appointed." On the 9th of March, 1835, the report of the referees was filed, in the words following: " Two previous meetings having been held in this case, and adjourned through the absence of one of the referees, on neither of which was the defendant present in person, or by counsel ; the referees, at a meeting held March 6th, 1835, the plaintiff being present, with counsel and witnesses, after hearing the remarks of counsel, and receiving the testimony of the witnesses, find an award in favor of the plaintiff, in the sum of $684. (Signed) MORDECAI D. LEWIS, WM. S. TORR, JOHN ELLIOTT." The following errors were assigned in this court: "1. The court erred in substituting referees for those origin- ally appointed, without the knowledge or consent of the defendant below. 2. The court erred in rendering judgment on the report of referees ; because the same is erroneous : l"*1781 *^' ^ n fc ^ at ^ ^ oes no ^ a PP ear tna ^ th referees were ever qualified. 1835.] OF PENNSYLVANIA. 178 (Browning v. McManus.) 2. In that the proceedings, being ex parte, no notice to the defendant of any of the meetings of referees, appears to have been given. 3. In that the report is by referees, of whom two only ap- pear to have been regularly appointed." Mr. Holy, for the plaintiff in error, contended*: 1. That the court below had no power to substitute a referee for one who had declined to serve, without the concurrence of both parties, Shipper? Lessee v. Bush, (1 Dall. 251 ;) and that the consent ought to appear upon the record. Russell v. Gray, (6 Serg. & R. 145.) 2. That the award was defective ; because it did not appear that the referees had been sworn or affirmed. [KENNEDY, J. This is not required by the act of 1705 ; and it is not usual in practice.] 3. That the award was bad ; because the proceedings were ex parte, and no notice appears to have been given to the defendant or his attorney. The substitution having been made on the same day that the meeting of the referees took place, notice ought not to be presumed. Mr. Zantzinger and Mr. D. P. Brown, for the defendant in error, argued that the proceedings were regular, and that, at all events, the remedy of the party was by application to the court below. They cited Kyd on Awards, 34 (d) (Amer. Ed.;) Op- penheimer v. Comly, (3 Serg. & R. 3 ;) Nagley v. Stewart, (10 Serg. & R. 207.) PER CURIAM. The exceptions are such as might be proper in the court below, on a motion to set aside the award ; which is put, by the act of 1705, on the footing of a verdict ; but they are not in place here. We are incompetent, for instance, to enquire whether the arbitrators were sworn, or the opposite party had notice ; but these, being extrinsic* to the record, were open to examination in the court below, by affidavit. The exception to the substitution has color of foundation, but no more. The sub- stituted arbitrator appears to have been appointed precisely as the others were. The minutes are unusually short and unsatis- factory ; but in a court of general jurisdiction, every thing is to be presumed in favor of the regularity of a proceeding. In the absence of contradiction by the record, then, we are to presume that the defendant was present in person, or by counsel, and con- sented to the substitution. Judgment affirmed. Cited by Counsel, 5 Casey, 253 ; 6 Id. 388 ; 1 Grant, 118. Cited by the Court, 2 Jones, 184 ; 14 Wright, 534. See also 9 Barr, 487 ; 5 Casey, 253. 179 SUPREME COURT [Dec. Term, [*179] ['PHILADELPHIA, JANUARY 26, 1830.] ROBINSON against WOELPPER. IN ERROR. Where one bequeathed the interest of a certain sum to his wife during her life ; and his widow afterwards married again ; it was held that the in- terest so accruing was not liable to a foreign attachment, at the suit of a creditor of the second husband. UPON a writ of error to the District Court for the City and County of Philadelphia, the case was thus: Rohinson had issued a foreign attachment against Othniel Colescott ; and having obtained judgment in due course, issued a scire facias against George Woelpper, the gamishee. Upon the trial of this scire facias, the jury found a special verdict, setting forth that Frederick Woelpper, the former husband of Rachel Colescott, now wife of Othniel Colescott, the defendant in the at- tachment, made his will, as follows: " Be it remembered, that I, Frederick Woelpper, of Moyamen- sing, in the County of Philadelphia, victualler, being of sound mind and memory, praised be the Lord for the same, have thought proper to make, and hereby do make, my last will and testament, in manner following, that is to say : First, I will that all my just debts and funeral expenses be duly paid and satisfied. 1. Item. All the rest, residue, reversion, and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath to my beloved daughter Margaret, and to such other child and children as shall be born unto me, her and their respective heirs and assigns forever, subject, nevertheless, to the payment of one-third part of the nett interest and income thereof, to my beloved wife Rachel, for, and during all the term of her natural life ; which I give to my said wife in lieu and bar of dower. 2. And in order the better to enable my executors to settle my estate, I authorize them to sell and dispose of all my real es- tate, whenever they shall deem proper ; and grant and convey the same, or any part thereof, to the purchaser or purchasers thereof, in fee simple. And thirdly, I also give to my said wife, Rachel, all the fur- niture belonging to this room, and likewise all my kitchen furni- ture, &c. Item. I nominate and appoint my said wife executrix, and my brother, George Woelpper, executor of this, my last will and tes- tament. 1835!] OF PENNSYLVANIA. 180 (Robinson v. Woelpper. ) * And I also appoint my said brother George, guardian ^^ Rft , of the person and estate of my said daughter, and of such child and children which shall, or hereafter may be born unto me. In witness whereof, I have hereunto set my hand and seal this twenty-first day of January, in the year of our Lord one thou- sand eight hundred and eighteen." That George Woelpper, the garnishee, was the executor named in the said will, and as such, had in his hands, at the settlement of his accounts, on the 21st of July, 1820, the sum of $7761 64 ; which was invested at an interest of about five per cent., yearly, and that the widow of the testator, and wife of the defendant, re- ceived from the said George Woelpper, half yearly, one-third of the interest on that sum, as the same from time to time fell due, viz., in the months of January and July : and that since the issu- ing of the foreign attachment in this case, the sum of $242 17 had accrued and was in the hands of the garnishee, as executor of the said will. The court below rendered judgment upon this verdict in favor of the defendant ; whereupon the plaintiff removed the record to this court. Mr. Wheeler, for the plaintiff in error. The estate of the de- cedent, as respects the sale of real estate, and payment of debts, had been settled for twelve years before the issuing of the attach- ment. The payments of interest which accrued during the cover- ture, as made to Mrs. Colescott, were, in law, payments to the husband : they had been received, and were held to his use. The duty which George Woelpper undertook to perform, is a bald, naked, trust ; not clothed with any direction, as to her sole and separate use, upon her own receipt, &c. The point at which he is to be contemplated, is when dividends are received ; immedi- ately on which receipt, they are exposed to the implied assumpsit in law, which is in favor of the husband alone. In the case of Buckley v. Collier, (1 Salk. 114,) where the husband and wife declared for work done by the wife during coverture ; the court in overruling the action say " here is no express promise laid to the wife ; here is nothing but the promise in law, and that must be to the husband, who must have the fruits of the wife's labor. Also, the advantage of the wife's work shall not survive to the wife, but goes to the husband, for if the wife dies, her debts fall upon him, and therefore so shall the profits of the trade to the husband's executors." So, also, is the recent case referred to in Clancey on the Rights of Married Women, at page 3 ; Glover v. The Proprietors of Drury Lane. The husband is entitled abso- lutely to all sums of money which have been received by a third 180 SUPREME COURT [Dec. Term, (Robinson . Woelpper.) person on her account, during the marriage ; and if he join her r*ien w ^ ta h* m * n ^tions f r such causes, it *would be error. A J Abbott and Wife v. Blofield, (Croke James, 644;) Brid- goodv. Way, (2 Black, 1236 ;) Coke Litt. 351, a ; Fitch v. Ayer^ (2 Conn. Rep. 143,) where the interest on a legacy given to the wife, was held recoverable by the husband alone. Griswold v. Penniman, (Idem. 564,) where the husband's creditors were held entitled to the wife's distributive share, which accrued during the coverture. A legacy given to a married woman, must be paid to the husband. Toller's Executors, 320 ; Matthew's Guide to Exe- 'cutors, 79. In Evans and Wife v. Norton's Executors, (4 Rawle's Rep. 66,) the expression was, u I also give and bequeath unto the said George Knorr, the sum of one thousand dollars, in trust, for the use of her, the said Sarah Evans ;" and it was held, that the husband was entitled to the legacy. The reasoning of the judge who pronounced the judgment of the court, is aside from the cir- cumstance of the husband being joined in the suit. Yoke v. Bar- net, (1 Binney, 358,) contrasted with Jamison v. Brady, (6 Serg. & R. 466,) is a notable illustration of the general principle, that money accruing during the coverture, is the husband's ; there, money belonging to the wife was applied at once to the payment of his debt. Precisely the same thing was done in Krauze, as- signee of Moll v. Beitel, (3 Rawle's Rep. 199.) This interest would be attachable in Massachusetts, for the husband's debt. Shuttleworth v. Noy, (8 Mass. Rep. 229.) There, the money due on a promissory note given to the wife, was attached by the creditor of the husband. It matters not that their process or remedies are different from ours ; this circumstance does not affect the principle. The law is the same in reference to the rents of the real estate, accruing during the coverture. Coke Litt. 162, b. 8. " A feme sole is seized of a rent in fee, &c., which is behind and unpaid, she taketh husband : the rent is be- hind again ; the wife dieth ; the husband, by the common law, should not have the arrearages grown due before the marriage ; but for the arrearages become due during the coverture, the hus- band might have an action of debt by the common law." OgneVs case, (4 Coke's Rep. 61.) So also is the year book, 10 Henry, 6, 11 ; Chant, (counsel ;) " in the case where the wife, before the coverture, had made a lease to a man for term of life, rendering to her certain rent, and during the marriage the rent waa in arrear, after the death of the wife, the husband shall not have action of this rent." Babington, J. " The baron shall have good action in this case that you have put." Rolle's Abr. Baron and feme, 352. To the same effect is Torbert v. Twining, (1 Yeates, 132.) The case is clear of the doctrine connected with that of the wife's choses in action, because the right to these 1835.] OF PENNSYLVANIA. 181 (Robinson v. Woelpper. ) dividends, in the hands of the garnishee, is in the husband. The law, on the subject of the wife's choses in action, is to be found in Clancey, from page 3 to 8. The dividends received and em- braced in the special verdict, are credits of the husband, and are within the very words of *our attachment law, viz. : r*-ioo-i " goods, chattels, moneys, effects, and credits of the de- fendant, in the custody, possession, and charge, or due and owing from any garnishee or garnishees." (2 Sm. L. 502.) The object of the foreign attachment law, is to make responsible the effects of the absent debtor, to the same extent as those of the present debtor. If Colescott should be compelled to take the benefit of our insolvent law,- his assignmant would embrace these credits. (Ingraham on Insolvency, 2d ed. 223, 321.) . The attachment may be dissolved by the entering of special bail. (1 Smith's L. 45, s. 2.) This case is different from that in 2 Watts. Rep. 90, Dennison v. Nigh; because the estate there is not settled. A trust for selling real estate was to be executed. The cases cited by the court, in ruling the point, are not applicable to our case : the one in 2 Ventris, 341, was clearly a case of a wife's chose in action : that in 1 Rolle's Abr. 551, was not an interest coming up to the point of assignability, according to Sommer v. Wilt, (4 Serg. & R. 19.) It was an attempt to attach the interest of a dispossessed owner of goods, in the hands of a tort feasor. As to reduction into possession. The dividends, as received, had always been punctually paid to Mrs. Colescott, before her mar- riage, and after that event, till the time of the attachment, in a way satisfactory to the husband. There was as much reduction into possession as the nature of the thing admitted of. We are to be governed by our acts of assembly, and not by the customs of London. By the custom of London, it appears that a legacy is not the subject of foreign attachment ; whilst this court holds it to be an open question under our law. Mr. Arundel, contra, cited Schuyler v. Hoyt, (5 Johns. Ch. Rep. 190 ;) Jamison v. Brady, (6 Serg. & R. 466 ;) Lodye v. Hamilton, (2 Serg. & R. 491 ;) Starret v. Wynn, (17 Serg. & R. 130 ;) Dennison v. Nigh, (2 Watts, 90 ;) 3 Atkyns, 399 ; 5 Vesey, 520 ; 3 Br. Ch. Rep. 181 ; 1 Russell Ch. Rep. 24 ; 1 Bac. Abr. 480 ; 2 Atkyns, 206 ; 2 Vernon, 202 ; Clancey, 321, 353. The opinion of the court was delivered by HUSTON, J. There is scarcely any part of the law, in which the distinctions have gone on nicer grounds, than in that which relates to the rights of husband and wife. Nay, the decisions are not always to be reconciled ; and in more than one instance, what 182 SUPREME COURT [Dec. Term, (Robinson V. Woelpper.) was held to be law at one time, has been subsequently expressly overruled. I shall confine ray remarks to the case before us. The cases cited do not, all of them, apply to the case before us. This is not the case of money earned by the labor of the wife, and sued for on the implied promise to pay ; nor is it the case of money or goods devised to a married woman, or of a bond or note given to a married woman it is a legacy devised to a r*1K3T woman before *she was married. I may admit that the J husband could sue for it alone could release it assign it ; that it would go to the assignees of her husband, if a bankrupt, or insolvent debtor.* Here he has not sued for it, nor released, nor assigned it, nor been declared a bankrupt, nor assigned and been discharged under the insolvent debtors' act. The position, that if a husband can sue for it alone, and re- cover, it is his, and goes to his executors, and does not survive, is not admissible. He may assign a term for years bring eject- ment, and recover it in his own name. It may in his lifetime be taken on execution for his debt ; and yet every book says, that if he does not assign it does not bring an ejectment for it, in his own name, but leaves it not sued for, or joins his wife with him, as plaintiff, in the ejectment, or it is not taken in execution for his debts, during his life, it survives to the wife ; and he cannot prevent this, by devising it ; though he could have sold or assigned it till the last moment of his life. In England, legacies are recoverable generally in chancery, and this has in- troduced a part of their law, as to husband making provision for his wife, where the gift is to her, before he can recover the bequest ; and on this subject, also, all the decisions are not easily reconciled. We may say that, generally, where he has made a settlement on her at the marriage, he gets legacies, claiming as a purchaser, without any new settlement on recover- ing the legacy. But this is not universally so. For where the sum settled at the marriage is small, and the legacy large, he has been compelled to settle a further sum. In this case, the husband has made no settlement ; and his creditors can't claim on that account. But this chancery power has not been exer- cised in this state. It would seem, then, that although the right of the husband is in many cases absolute, yet, if he does not exercise the right, it expires with his life. He is entitled to the property, to the term for years, the chose in action or legacy ; but he is entitled to it, and owns it, in right of his wife ; and when he dies without having exercised his right, her right is superior to, and exclusive of all others. Husband and wife are, * See 7 Watts & Sergeant, 169 ; 1 Harris, 563. 1835.] OF PENNSYLVANIA. 183 (Robinson v. Woelpper.) in law, but one person. All rights to personal property which were in her, by this legal fiction, are in him, as identified with her, during his life ; and though he, having the power to sue or dispose, may recover, and reduce to possession or dispose of the chose in action without her, yet the right still remains in her so far, that if she survives, she has it precisely as she had it before marriage. The act of the husband only, can divest this right of the wife. A creditor can imprison a man if he does not pay his debts, and has no property on which to levy it. But, although in prison, the creditor cannot compel him to assign his own bonds, given directly to himself; nor the bonds or legacies given to his wife before her marriage : and I think no case or dictum can be found to show, *that during his life, or after his death, the \-*-\QA-\ bond or legacy to the wife, before marriage, can be "- taken for his debt. If he wishes to be discharged from prison under acts for relief of insolvent debtors, he must assign them ; and then, it is the act of assigning, which passes them to the creditors. The fact of his being indebted, and no other fund to pay creditors, will not pass them. The law seems to require some act of the husband, to take them from the wife. If no act is done by the husband, the chose in action, which was the wife's before marriage, must be hers after his death. In this case, the husband has done no act ; has not sold, released, or assigned either voluntarily or as a bankrupt. The result of this may be, that a husband may have a right to money which he could get, but which his creditors cannot reach. So a bond may be due to him, or a debt ; his creditors cannot levy on either of these ; and if he will lie in jail, they cannot obtain them during his life. A bond to himself, or a debt to himself, may, after his death, be reached by his creditors ; but a legacy or debt to the wife, before her marriage, if not collected by the husband, his creditors can- not obtain: for, as it was originally in the wife, and the husband's right arose from the fiction of the law, which, for many purposes, considers husband and wife but one person, the law remits to the wife her original right on the death of the husband ; and neither heirs nor creditors of the deceased husband have any right to it. The very point now before us, was decided by this court, in 2 Watts. 90 ; for this yearly sum is the legacy. The be- quest is not of the principal to the wife, and the interest annu- ally. If it were so, I am not aware that it would make any dif- ference. If a bond is due to a woman before marriage, and neither principal nor interest disposed of by the husband during life, the whole, on his death, goes to his wife. So of a legacy bearing interest. Whether any legacy can be attached for the debt of the 184 SUPREME COURT. [Dec. Term, (Richards . Murphy.) legatee,* has not yet been decided in this state, and we say noth- ing about it. Judgment affirmed. Cited by the Court below, 12 Casey, 178. Cited by Counsel, 3 Wharton, 417 ; 8 Watts, 11 ; 7 Watts & Sergeant, 418 ; 1 Barr, 293 ; 4 Id. 391 ; 9 Id. 502 ; 10 Id. 423, 433 ; 4 Harris, 392. Cited by the Court, 6 Watts & Sergeant, 299 : 5 Barr, 263 ; 9 Wright, 528. See also, 2 Barr, 72 ; 6 Penn. Law. Jour. 97 ; 9 Harris, 250 ; 11 Id. 463. [*185] ['PHILADELPHIA, JANUARY 26, 1863.] RICHARDS and Others against MURPHY. IN ERROR. In trover against one who had purchased goods from a person alleging himself to be the owner, declarations by an agent of the plaintiff, made at the time of the purchase by the defendant, disclaiming title in the plaintiff, were held to be admissible in evidence on the part of the de- fendant. ERROR to the District Court for the City and County of Phila- delphia. An action of trover was brought to September term, 1882, of the District Court, by Mark Richards, John Hemphill, George M'Clelland, and Tobias Huber, against James Murphy, to re- cover the value of certain pieces of lumber, alleged to be the property of the plaintiffs, and to have been converted by the de- fendant. It appeared, upon the trial, that the plaintiffs were concerned together in the business of planing boards by steam power, and received lumber for that purpose : that a quantity of lumber was landed upon the wharf of Davis & Biddle, on the river Schuyl- kill, at the request of one Inslee, for the purpose of being carted thence to the lumber yard of the plaintiffs, upon a contract made by Inslee on their behalf, for the purchase of it from the con- signees. It was not, however, taken away from the wharf ; the plaintiffs refusing to ratify the contract ; but, while there, part of it was sold to the defendant by one Trimmels, who alleged himself to be the agent of the consignors, and to whom the de- fendant paid the price agreed upon between them. It appeared, also, that the consignors of the lumber had recovered the value * See 2 Wharton, 332. 1835.] OF PENNSYLVANIA. 185 (Richards . Murphy.) against the present plaintiffs, in an action on the contract. The plaintiff having proved the possession of the lumber by the defend- ant, and that the property was in the plaintiff, by reason of the recovery of the price or value of it from them by the owner ; the defendant offered in evidence declarations of Inslee, made after the landing of the lumber on the wharf, and before the purchase by the defendant that the lumber did not belong to the plaintiffs. It was shown that Inslee was employed in the lumber yard of the plaintiffs, and had charge of their planing machine. The plain- tiffs' counsel objected to the admission of Inslee's declarations; but the judge admitted them, and the evidence having been gone through, charged the jury in .substance as follows: " There being no dispute about the value of the lumber, the case depends upon a few plain principles. The only person known in the business, on the part of the plaintiffs, was Mr. Inslee, who had applied * to Davis & Biddle for permission to land the r-^ ^-, lumber, and throughout acted for the plaintiffs, who must take his acts throughout. Unless somebody else is answer- able, one or other of these parties must lose their money. It ap- pears that Inslee, after having been repeatedly sent to by Davis & Biddle, declared that the concern had nothing to do with this lumber, and would not receive it, and left Davis & Biddle to take their own course with regard to it ; and in consequence of that, as a point of law, any person purchasing for, or with the knowl- edge and approbation of Davis & Biddle, had a right to take the property ; and if Davis & Biddle chose to sell or allow a sale, by a person they honestly believed had a right to sell, after Inslee had disclaimed the ownership, the purchaser may hold the prop- erty, and the plaintiff may look to Davis & Biddle, or to the person actually selling, if they have any claim. But as a point of law, Murphy is protected, having purchased with the knowl- edge and approbation of Davis & Biddle. Murphy used due pre- caution, received the lumber from a responsible house, and he is protected. If he is responsible, then every one who has a piece of this wood in a bureau may also be made responsible, and may be sued on the same principle. There must be some limit to a man's following his property." The plaintiff's counsel excepted to the admission of Inslee's declarations, and to the charge of the court ; and, having removed the record to this court, assigned the following errors : "1. The judge who tried the cause, permitted the declarations of John Inslee to be given in evidence to the jury to affect the rights of the plaintiffs, the said Inslee being no party to the re- cord, and no authority shown to bind the plaintiffs by his declara- tions the said evidence being objected to by the counsel for the plaintiffs. 186 SUPREME COURT [Dec. Term, (Henry v. Sims.) 2. The judge charged the jury, that there being no dispute as to the value of certain lumber which was the subject in contro- versy, and the said Inslee having applied to land the said lumber, and being the only person known in the business on the part of the plaintiffs, his declarations and acts bound them throughout. 3. The judge charged the jury, that the plaintiffs were pre- vented from recovering by the declarations of Inslee, that the lum- ber in question did not belong to the concern, and that they would have nothing to do with it. That the owners of the wharf might sell it, or do as they pleased with it. 4. The judge further charged the jury, that any person buy- ing the said lumber, with the knowledge and consent of the own- ers of the wharf, after the said declarations, would have a right to hold it." Mr. CJtew, for the plaintiff in error, cited Hosack v. Weaver, (1 Yeates, 478 ;) Easton v. WortUngton, (5 Serg. & R. 130.) r*ifiri *Mr. Hirst, contra, cited Shelhamer v. Thomas, (1 Serg. & R. 106.) PER CURIAM. A disclaimer of title by the plaintiff in person, when the defendant bought, would have concluded him ; whether it were made in fraud or in ignorance ; for every man is bound to bear the consequences of his own mistakes. The matter, then, was, whether Inslee, who appears to have had some sort of agency under the plaintiff, had power to represent him on the occasion ; and that presented a question for the jury. There was at least some evidence to raise it ; and as error is not to be presumed, we are bound to say the assignment of it has not been sustained. Judgment affirmed. Cited by Counsel, 2 Wharton, 203, 343. [PHILADELPHIA, JANUARY 30, 1836.] HENRY against SIMS. IN ERROR. 1. A judgment in a scire faews upon a mortgage, for the amount of the money due upon the mortgage, is a judgment for a "debt or damages," within the 14th section of the act of 13th April, 1791 ; which provides 1835.] OF PENNSYLVANIA. 187 Henry v. Sims. ) for entering satisfaction of such judgment, and gives a penalty to the party aggrieved by the refusal to enter satisfaction. 2. It is not necessary that the party suing for such penalty should prove that he has sustained actual damage by the refusal to enter satisfaction ; The jury may take into consideration all the circumstances by which the party has suffered vexation and inconvenience. THIS was a writ of error to the District Court for the city and county of Philadelphia, to remove the record of an action of debt, brought in that court by Joseph Sims against Alexander Henry, to recover the penalty given by the 14th section of the act of 13th April, 1791, for not entering satisfaction of a judgment in the said court. The circumstances were as follows : On the 23d of December, 1820, Joseph Sims executed a mort- gage of certain property in the county of Philadelphia, to Alex- ander Henry, to secure the payment of $10,000 with interest, money lent by Alexander Henry to Joseph Sims. In the spring of the year 1823, Joseph Sims, being then insol- vent, executed an assignment of all his property for the benefit of his creditors ; * where by all his interest, in the pre- r*iQQ-i mises mortgaged to Alexander Henry, passed to his ^ assignees. The interest on the mortgage being no longer paid, Alexander Henry issued a scire facias thereon, to the June Term of the said court ; whereupon judgment was entered by agreement, on the 23d day of June, in the same year, in favor of the plaintiff, for $10,600, the amount of the mortgage with one year's interest thereon. On this judgment execution was issued and satisfaction obtained. In the month of March, 1828, Caleb Carmalt, as the agent of Joseph Sims, applied to Alexander Henry to enter satisfaction on the record of the said judgment, which not being done within eighty days, Joseph Sims brought this action, and claimed $5,300, one half the amount of the said judgment, as a penalty for not entering satisfaction thereon, within eighty days after the request so to do. Issue being joined upon the plea of nil debit, &c. the cause came on for trial in the District Court, on the 10th of May, 1833, when the plaintiff gave in evidence the following entries on the docket of the same court of June Term, 1823, viz. : "ALEXANDER HENRY, "j 348 v. Scire facias sur JOSEPH SIMS, with notice to Joseph B. Sims, I Mortgage. Benjamin Jones and Joseph Johnson, his " made known." assignees and terre tenants. 23d June, 1823. By writing filed, it is agreed, that judgment VOL. I. 13 188 SUPREME COURT [Dec. Term, (Henry c. Sims.) be entered in favor of the plaintiff, for ten thousand six hundred dollars, to be entered on the 22d June, 1823, as on an award of arbitrators regularly obtained and filed on that day. June 23d, 1823. Judgment. 27th August, 1828. This judgment is satisfied. Signed, ALEXANDER HENRY." The plaintiff then read the deposition and cross-examination of Caleb Carmalt, as follows : " Caleb Carmalt, a witness on behalf of the plaintiff, aged thirty-seven years and upwards, being duly affirmed, says : In the beginning or middle of February, 1828, I was applied to by the plaintiff in the above case, to obtain for him about eight thousand dollars upon mortgage of lands in Philadelphia county.- I made application to Thomas Voight, and obtained a promise from him to let Mr. Sims have four thousand dollars, upon the office certificates proving satis- factory. I made the usual application to the different offices for certificates, and upon obtaining them, there appeared upon that from the District Court, a judgment obtained by Alexander Henry against Joseph Sims, for ten thousand six hundred dol- lars. I showed the certificates to Joseph Sims, the defendant in that action and plaintiff in this, who told me it was paid, and thought there must be some mistake, and that satisfaction was surely entered. He sent me to his assignees for evidence of r*18Ql * payment, and I got from Mr. B. Jones a statement to - that effect. I then stated the circumstances to Voight, but he refused to lend the money, alleging that both Mr. Jones and Mr. Sims were to be considered as defendants, and he wanted something from the plaintiff, Alexander Henry. I then went with the certificate in my hand to Alexander Henry's counting- house, and exhibiting the certificate and the statement of Mr. Jones, I stated the difficulties which had taken place in obtaining the loan and the impossibility of getting the money. He read the certificate, and he then said, that the statement of debt, in- terest, and costs, having been paid, was all perfectly correct ; that he did not know why it was not entered : that the whole business was committed to the care of his counsel, William H. Tod, and that he (W. H. T.) must still attend to do what was necessary. I told him, that my object was to get satisfaction now, and that it would take him but a few minutes to go round to the office and enter satisfaction, if he knew the facts to be as represented, that the debt, interest, and costs were paid. He said he knew the business was all settled, but he would not meddle with it himself; I must go to Mr. Tod. I think there was a conversation took place on the subject of the satisfaction fee, in which I told him if it was not paid, I would pay it. Of this, however, I am not so 1835.] OF PENNSYLVANIA. 189 (Henry v. Sims.) certain as of the other parts of my deposition. I represented to him the circumstances in which Mr. Sims was then placed, in re- gard to his assignees, telling him there was a balance which the assignees insisted upon having, before they would execute a re- assignment. After considerable further effort with Alexander Henry, I went to W. H. Tod, and stated what had taken place, and that I had been sent to him by Alexander Henry, and made the same representation to him and wished him to do what was requisite in that case. He said Mr. Henry must enter satisfac- tion ; took down his docket or receipt book and showed me that not only was the judgment paid, but that he had also paid it over to Alexander Henry. He then told me to go to Henry and tell him to enter satisfacfton. I went back the same day to Voight, and stated their representations to him, but he positively refused to let Joseph Sims have the money. He said, he thought they could have no difficulty in entering satisfaction, if it was as it was represented. The next day, I think, I took Voight with me to the prothonotary's office, and showed him that it was a judgment on a scire facias. He was still uneasy and unwilling ; and said he could not understand why they would not enter satisfaction. I then went again to Alexander Henry's counting-house and missed seeing him, but saw his clerk, who took down the ledger, and showed me that the account was balanced. I went a third time to Alexander Henry. I saw him, and the same kind of conversation took place as before. I also told him what W. H. Tod said, and what Voight said. Alexander Henry said in reply, that he would not have any thing to do with it, and that Mr. Tod must do it himself. * I then left the counting-house and r*i QQ-J have never seen him since upon that subject. With very great difficulty, I at length finally succeeded in getting the money." On his cross-examination the witness said : " That at his first interview with Alexander Henry, as stated in his deposition in' chief, he thinks George Williams was in the counting-house of Alexander Henry. He speaks with confidence when he says so. He sat reading a newspaper. He does not recollect any other person then to have been present with Mr. Henry, but his clerk. It was the same man who afterwards took down the ledger and showed the deponent Mr. Sims' account, as stated above. He is under the impression, that on his interview with Mr. William H. Tod, Mr. Tod stated that John Wharton was the purchaser, but cannot say what reasons he gave for not having entered satisfaction. On the deponent's second interview with Mr. Henry, he did not state what W. H. Tod assigned as his reason for not entering satisfaction on the docket of .the judg- ment in the case of Henry v. Sims. At the second interview 190 SUPREME COURT [Dec. Term, (Henry t>. Sims.) with Mr. Henry, the deponent does not believe that there was any body there but Mr. Henry. He is under the impression that at the first interview, there waa another person passing in and out of Mr. Henry's counting-house, but cannot speak positively. But at the second, he does not think there was any person passed in or out of the counting-house. The deponent cannot say whether Mr. Tod did or did not certify on the face of the certifi- cate of judgments, that the one in question was satisfied. But the certificate is in the hands of Mr. Voight. The deponent does not know that Mr. Sims sustained any actual loss from the cir- cumstances he has detailed in evidence, and Mr. Henry's declin- ing to enter satisfaction on the record of the judgment, but a little delay, as the deponent afterwards procured the money from Mr. Voight, without any alteration of the circumstances of the case." The delay, the deponent should think, was hardly a week. He thinks he told Mr. Tod, that Mr. Henry said, that he, W. H. Tod, should enter satisfaction, but he never went but once to W. H. Tod's office on the subject. The mortgage on which the judg- ment was entered, was satisfied on the record at the recorder's office ; but the judgment thereon in the prothonotary's office was not satisfied on record. The deponent is positive, that he never tendered to Mr. Henry any money for the fee for entering satis- faction." The plaintiff then read a certificate from the prothonotary of the Court of Common Pleas for the county of Philadelphia, cer- tifying that he found no unsatisfied judgment against Joseph Sims ; which was dated 21st February, 1828, also a certificate from the prothonotary of the District Court, for the city and county of Philadelphia, in which he certified that on examination of the judgment docket of the said court, from December Term, r*1Q1T one * inousan d eight hundred *and twenty-two, to the J nineteenth day of February, one thousand eight hundred and twenty-eight, he found the following judgments entered within that period against Joseph Sims. " Alexander Henry v. Jos. Sims, J. 23. 348 Tob.-^June 23, 1823, $10,000. Philadelphia Bank v. Same, J. 24. 444. J. M. Read.-^June 10, 1824, $2,359 63. Also find two against Joseph B. Sims. Joseph Johnston v. Jos. Sims, J. 29. 448. J. S. Smith. July 1, 1829, $6,261 91. Jno. Coulter, v. Same, M. 28. 300. Cadwalader. Sept. 8, 1830, from the above date to the 17th December, 1830, 50-100 paid, S. M. S. Certified pro prothonotary. SAM M. SOLOMON. 1835.] OF PENNSYLVANIA. 191 (Henry . Sims.) The judgment above stated by Jos. Johnston v. Jos. Sims, is satisfied. Bed. 18, 1830. JAMES S. SMITH." On the back of which certificate was written as follows : " The mortgage on which the last judgment was obtained is sat- isfied. Signed, Feb. 21, 1828. CALEB CARMALT." Also, " Alexander Henry sued out his mortgage obtained the within judgment thereon and the whole amount, debt, interest, and costs have been paid. Signed, B. JONES." Also, " The judgment being on a scire facias, is not a lien upon the remaining land of Joseph Sims Alexander Henry told me this day it was all paid. Signed, 2d Mo. 22, 1828. CALEB CARMALT." Also, "M. 28. 300 Sims v. Coulter, is a judgment for costs only. Signed, Dec. 18, 1830. JOHN CADWALADER, for Def." He also offered in evidence a certificate from the prothonotary of the Supreme Court, certifying that on examining the judgment docket of the Supreme Court for the Eastern district of Pennsyl- vania for five years prior to the eighteenth day of February, A, D. 1828, he found the following unsatisfied judgments against Joseph Sims. " Hannah Chancellor v. Joseph Sims Warrant of Attorney, 94, pp. 28. same 1823. Judgment for $1:0,000." *on the back of which was endorsed, ["*1921 " The mortgage accompanying the within judgment is satisfied. Signed, Feb. 21, 1828. CALEB CARMALT." The plaintiff then .offered in evidence the docket of sheriff Douglas, for June Term, 1824, he then being sheriff of the city and county of Philadelphia, where appeared the following en- tries: " Alexander Henry, v. Joseph Sims, with notice to Joseph B. Sims, Benjamin Jones, and Joseph Johnson, his assignees and terre tenants. Levari Facias. March 9, 1824. 192 SUPREME COURT [Dec. Term, (Henry t>. Sims.) 22 March, 1824, sold No. 1, to Benjamin Tilghman, for $9,100 No. 2, to John Wharton, for 2,200 By cash, - $2,200. Received April 24, 1824, of Sheriff Douglas, $2,085 61-100 on account of the principal debt in this case, also seven dollars and seventy-five cents, attorney's writ, sheriff and levari facias. Total $2,093 36-100. Signed, WILLIAM H. TOD, Att. for A. Henry." Then followed a statement of the amount of the judgment, and of several payments on account, with a calculation of interest, concluding as follows : " I do hereby acknowledge that the above debt is settled by John Wharton, Esq., with the plaintiff, and the sheriff is exoner- ated from any responsibility theretor. Signed, WILLIAM H. TOD, for pl'ff." After which came a bill of costs, including sheriff's poundage, costs of sale, and the fee for entering satisfaction, and a receipt by the prothonotary of the District Court for his costs. The plaintiff then called Thomas Voight as a witness on his part, who testified as follows : "I was applied to by Caleb Car- malt for the loan of some money to Joseph Sims : he was acting as Mr. Sims' Agent. I cannot recollect the date of the applica- tion, nor the date of the mortgage. It was in the fall ; there was considerable difficulty as concerned the searches, more particu- larly as regarded a judgment by Mr. Henry. There had been no satisfaction entered on the judgment for $10,600; Mr. Car- malt was acting as agent for me also, he was the person I always employed I refused to lend the money until I was satisfied. Mr. Sims called and Mr. Carmalt called together occasionally on me. The certificate from the District Court of Philadelphia county, is the certificate I refer to ; on that certificate I let him have the money. The delay might probably be ten days or two weeks ; the date of the mortgage must have been about r*1 cm * tne ^ ate ^ tne 8earGnes m tne District Court. The -I date of the mortgage was 19th February, 1828. Don't recollect whether it bore date from the time the money was act- ually paid over, or from the time I agreed to lend it." The plaintiff then produced the appearance docket of the said District Court, for the term of September, 1828, wherein it ap- peared, that the original writ of summons in this case, issued 28th of June, 1828, returnable to said term of September. The plaintiff having closed his testimony, the defendant, by his counsel, demurred to the same, alleging it to be insufficient in law, to maintain the issue. The plaintiff's counsel refused to join in demurrer without the 1835.] OF PENNSYLVANIA. 193 (Henry v. Sims.) direction of the court, and contended, that if the court gave such direction, the defendant should be put under terms in relation to the admission on record on certain facts. This being objected to on the part of the defendant, the point was argued by the counsel on both sides. Whereupon the court directed the plaintiff to join in the de- murrer, upon the defendant's admitting on the record, the follow- ing circumstances, it appearing to the court, that the jury might fairly find, that the evidence legitimately conduced to prove them. " First, that Caleb Carmalt had authority from the plaintiff, to request the defendant to enter satisfaction of the judgment in question. Second, that the request was made accordingly. Third, that a conversation did take place on the subject of the satisfaction fee, in which Caleb Carmalt told the defendant that if it was not paid, he, Carmalt would pay it, and not merely that Caleb Carmalt thought there was such a conversation." The defendant's counsel (objecting, however, to the right of the court to make such direction) made the admission on record ac- cordingly. Whereupon the plaintiff's counsel joined in demurrer ; and the jury were discharged. On this demurrer, the court below, after argument, gave judg- ment for Joseph Sims, the plaintiff below. A writ of inquiry of damages Avas thereupon awarded, and a jury summoned, before whom the parties appeared, and the case was tried ; but the jury not agreeing upon any inquisition, was discharged by the sheriff. Another writ of inquiry was thereupon issued, and another jury summoned ; who assessed the damages at three thousand dollars. This inquisition was set aside by the District Court, on the ground that the damages were excessive ; and an alias writ of in- quiry issued ; whereupon the jury assessed the damages at two thousand five hundred dollars. * The defendant then moved the court below for a rule r* ^94 1 to show cause why this second inquisition should not be set aside, for the following reasons : "1. Because the jury had found more than nominal damages, although the plaintiff had given no evidence of any damage what- ever. 2. Because the damages were excessive." This rule was refused by the court, and the defendant took nothing by his motion. Judgment was accordingly entered on this inquisition in fa- vor of the plaintiff below, for the sum of twenty-five hundred dollars. 194 SUPREME COURT [Dec. Term, (Henry t>. Sims.) The defendant having removed the record to this court, assigned the following specification of error. "1. The court below erred in point of law, in giving judgment for the plaintiff below, upon the demurrer to evidence in this case, when the judgment should have been for the defendant. 2. The court below erred in point of law, in giving judgment for the plaintiff below for more than nominal damages, although the plaintiff gave no evidence of any damage whatever." Mr. Bayard, for the plaintiff in error. 1. The act of 1791, was not intended to provide for such a case as the present. It is obviously and properly confined to judg- ment for the recovery of money. The penalty, which is to be not more than half the "debt or damages," for which the judgment was given, proves this. There are several species of judgments which could not have been within the contemplation of the legis- lature. A judgment in partition, in dower, and other real actions, certainly cannot be satisfied, in the legal sense, yet such judg- ments are docketted, and appear on the certificates. A scire facias upon a mortgage is a proceeding peculiar to Pennsylvania. It was given by the act of 1705, and supplies the place of the Bill in Equity. It is a proceeding in rem, merely. The 6th section of the act of 1705, directs what judgment shall be entered. It is a judgment specificially de terris. The practice is to enter judg- ment merely. It is true, that in this case, the agreement was, that judgment should be entered for 10,600 dollars, as on an award of arbitrators ; but this must be taken with reference to the scire facias, and the act of 1705 ; and the shor^ minutes of our dockets are only the materials from which the record is con- structed, Mercer v. Watson, (1 Watts, 358.) It is said that this judgment appeared from the certificate to be a general judgment. So would other judgments which are clearly not within the act. A slight examination of the record would show that it was not a lien beyond the mortgaged premises. Here, * there was the re- r*1/ { n sner ift> showing that the property mort- -* gaged had been sold and the plaintiff satisfied. The act of 28th March, 1715, requires the mortgagee to enter satis- faction of his mortgage in the Recorder's Office, within three months after notice, under a penalty not exceeding the mortgage money. In this case, satisfaction had been entered on the mort- gage. The certificates produced by the plaintiff, show the prac- tice and understanding of scriveners on this point. 2. The plaintiff, in this case, was not within the act of 1791. He had made an assignment of all his estate ; and there had been a sale by the sheriff, under a levari facias. If any one had a right to complain, it was the purchaser at the sheriff's sale. .There 1835.] OF PENNSYLVANIA. 195 (Henry v. Sims.) ought to have been some evidence to show that the plaintiff was damnified. The act of 31st March, 1823, 2, which is in pari materia, speaks of the person damnified. 3. The judgment ought to have been entered for nominal dam- ages only. The evidence shows that it was not a case for more. [ROGERS, J. How can we go into the evidence before the jury of inquiry ? May they not have had other evidence than that set forth in the demurrer ?] I apprehend not. The only way to cor- rect mistakes of the inquest, is by application to the court from which the writ of inquiry issues ; and a party is entitled to a revis- ion of the opinion of that court, by writ of error. Mr. D. P. Brown, and Mr. Tilghrnan, for the defendant in error. The only question for the court upon this writ of error is, whether the judgment in the case of Henry v. Sims, was a judg- ment for debt or damages, within the act of 1791. The verdicts of two juries in the court below, have settled the question of in- convenience, and show that the plaintiff has sustained damages. This court cannot enter into the consideration of inferences from matters of fact, which may be drawn by a jury. The record shows that there was a judgment for money against Mr. Sims. The plaintiff treated it as a judgment for money, and by means of so considering it, obtained compound interest according to the practice in computing interest upon a scire facias. If Mr. Sims had appealed from an award of arbitrators in this scire facias, he would have been required to give security in double the amount of the judgment. This shows that it was a judgment for money. And such has been from the earliest times, the practice in entering judgments upon a scire facias on a mort- gage. A mortgage is commonly given to secure payment of a bond. If judgment be entered upon the bond, does the entry of satisfaction of such judgment relieve the mortgagee from the penalty for not entering satisfaction on the mortgage ? The cir- cumstance that the mortgage in this case, was satisfied, is of no importance, since the act of 1791 was intended to protect defend- ants from "vexation and inconvenience ;" which they experience *from the existence of unsatisfied liens; and strangers r*iQA] cannot be expected to look into the consideration of judgments. Mr. Chauncey, in reply. The act of 1791 was intended to relieve against real inconve- nience and. prevent substantial injury, not to authorize a suit for an imaginary or trifling evil. The preamble shows the intention, when it speaks of the "subsequent purchasers of real property." 196 SUPREME COURT [Dec. Term, (Henry t>. Sims.) [HUSTON, J. Suppose a man have no real estate ; would he not he within the act?] I presume he would, but it must be such a judgment as would import a debt and affect his credit. 1. A judgment in a srire facias on a mortgage, is not to be considered anything more than an order of s^ale of the mortgaged premises. If it were a judgment for " debt or damages" within the act of 1791, it would be a lien on other real estate of the de- fendant ; which it certainly is not. It is not the basis of any sub- sequent proceeding. [HUSTON, J. If the judgment upon this kind of srire facias is more than a year old, is it not the practice to issue a srire f arias quare executio nonf] It is the practice, but I do not admit it to be necessary. At all events, it cannot enlarge the sphere of the original judgment. 2. The assignees of Mr. Sims were the real defendants in the srire faria#, since they confessed the judgment. The penalty cannot be given to two or more persons distinctly. Either the assignees or the purchaser at sheriff sale, must be considered as the party aggrieved, if any one was injured. The purchaser at the sheriff's sale may have a right to keep the judgment alive, as a link in his chain of title. Suppose there are two persons of the same name, the index of judgments will not distinguish between them. This shows the necessity of looking into the record. The scruples of a lender of money, who did not choose to search the record, could not have been within the contemplation of the legis- lature. The record in this case shows, that the fee for entering satisfaction, was paid to the prothonotary. 3. This is not an arbitrary penalty. By the words of the law it is to be proportioned to the injury sustained. Here, it appears, that Mr. Sims scarcely knew of the difficulty. All that is shown is, that the scrivener made two or three additional calls upon Mr. Henry. It is true, that generally, a court of error, will not look into the proceedings of a jury in the court below. Here, how- ever, the evidence was all on paper. It was not like the case of a judgment by default. The inquest had no more authority to re- ceive additional evidence than the jury at the bar, if they had been required to assess the damages. The court below decided that the jury might give more than nominal damages; although the plaintiff had given no evidence of any damage ; and this ap- pears upon the record. r*1/71 pi on f ^ ie cour t was delivered by - HUSTON, J. Joseph Sims was plaintiff below, and brought a suit against Alexander Henry, on the 14th section of the act of 15th of April, 1791, which is in these words : " Whereas, it frequently happens, that judgments long remain unsatisfied on record, although the moneys for which those judgments have been 1835.] OF PENNSYLVANIA. 197 (Henry t>.. Sims.) rendered, are justly discharged, whereby defendants, in such cases, as well as the subsequent purchasers of real property suffer much vexation and inconvenience ; Be it enacted, that each and every person having received satisfaction for his or their debt or damages, recovered by judgment in any court of record within this commonwealth, shall at the request of the defendant or de- fendants in the action, or of his, her, or their legal representatives, or other persons concerned in interest therein, on payment of the costs of suit, and on tender of his reasonable charges and the costs of office for entering satisfaction, within eighty days after such request made, enter satisfaction of the judgment in the office of the prothonotary of the court, where such judgment was or shall be entered ; which shall for ever thereafter discharge, defeat and release the same : and if such person having received such satisfaction as aforesaid, by himself or his attorney, shall not within eighty days after request and payment of the costs of suit, and tender of charges as aforesaid, repair to the said office, and there enter satisfaction as aforesaid, he, she, or they, neglect- ing or refusing so to do, shall forfeit and pay unto the party or parties aggrieved any sum of money not exceeding one-half of the debt or damages so adjudged and recovered, to be sued for and demanded, by the defendant or persons damnified, in like manner as other debts are now recoverable by law in this com monwealth. Joseph Sims had given to Alexander Henry, a mortgage to se- cure the payment of 10,000 dollars and interest. Alexander Henry had sued out a srire facias on this mortgage, and on the 23d of June, 1823, the defendant agreed to a judgment, as if on a report of arbitrators, for 10,600 dollars, and judgment thereon was on that day entered on the docket ; but entered, as usual in this state, by setting down the date, and writing the word judg- ment. The defendant below gave no evidence ; the jury gave a verdict for 2,500 dollars ; a former jury had given 3,000 dollars, which the court had set aside. Mr. Henry had issued a levari facias, and sold the property mortgaged, or a part of it (and it did not appear which,) and had received the whole of his debt and interest ; and the costs of all the offices, including the prothonotary's fee on entering satisfac- tion, had been paid out of the proceeds of the sale. Both parties lived in this city. Two matters of defence were relied on. 1. That the judg- ' merit which was plainly entered in the usual form on the docket, was not * such a judgment as is contemplated by the act piggl above cited ; and a distinction was shown to exist in England, between a judgment in a common adversary suit for debt or damages, which is that the plaintiff shall recover, &c. 198 SUPREME COURT [Dec. Term, (Henry. c. Sims.) (quod recvperef) and a judgment on a scire facias, which is, that plaintiff shall have execution, *&c. Admit this to be so in Eng- land, where, perhaps, no scire facias ever issues except on a judg- ment or recognizance of record in the court which issues the gcire facias. But here, we issue in the Common Pleas, a scire facias on a recognizance taken in the Quarter Sessions or other criminal court ; on a recognizance taken in the Orphans' Court ; on the recognizance of a sheriff or coroner, and sureties taken and recorded in the recorder's office, and on a mortgage and many other matters. And long and uninterrupted usage has sanctioned, or perhaps the nature of the proceedings required, that the judg- ment on the scire facias should he quod recuperet. An old act of Assembly gives interest on a judgment in this state, from the time of entering judgment ; and, perhaps, from that reason, on a scire facias to show cause why an execution should not issue on a judgment a year old, the judgment here is, that plaintiff recovers his debt and interest ; and the year having elapsed, a second scire facias issues, to show cause why execution should not issue on the judgment obtained on the first scire facias, and so on ; the principal and interest being joined to make the amount of each new judgment. I brought this matter before the Supreme Court, in the case of Fries against Watson, (5 Binn. 226,) where the plaintiff by issuing a scire facias every year, for a long time, had, in fact, been getting interest on interest. Judge Tilghman was so struck with the oppression of that case, that it was held under advisement ; but the result was that the practice, though directly contrary to the law and practice in Eng- lanb, was too old, and too well established to be altered, except by the legislature. But the 6th section* of the act of 1705, was read and relied on. That act prescribes the mode of proceeding to collect the money due on a mortgage ; a scire facias is to issue, summoning the defendant to appear and show cause, if any he hath, why the mortgaged premises should not be seized and taken in execu- tion, to pay the mortgage money with interest. It then proceeds to allow of defence by the mortgagor and pleas, and that he may show that the whole or part of the debt is paid, &c., &c.; or if he does not appear, an inquest in certain cases is to ascertain the amount due, " and the definitive judgment, as well as all other judgments to be given upon such scire facias, shall be entered, that the plaintiff, in such scire facias shall have execution by levari facias, directed to the proper officer;" by virtue of which the mortgaged premises are to be sold, &c. ; and it was strenu- ously contended, that this act was express, that the judg- ment should be only that execution should issue. I do not admit this construction, and if I did, the consequence contended 1835.] OF PENNSYLVANIA. 199 (Henry v. Sims.) * for would not follow. The act does not purport to give .-,-, QQ -, the terms of the judgment, except in one particular ; it L designates the kind of execution, viz. a levari facias. It does not say it shall be for the sum found by the jury ; it does not even state that the judgment or the execution shall effect the lands alone which were mortgaged. The officer is directed to take and expose to sale the mortgaged premises ; and the judgment must be to levy the debt of those lands ; but this arises from the nature of the proceedings ; it is not directed by the act. The words "definitive judgment, as well as all other judgments," refer, I sup- pose, to the judgment first had in court; and to judgment on a scire facias to revive that judgment, if no execution has issued on it within a year. It is admitted that the constant practice has been to issue a scire facias to revive the first judgment, where execution has not issued within a year ; and that the amount of the first judgment and interest from its date, added together, make the amount of a second judgment, and so on as often as a scire facias issues. A judgment may be quod recuperet, and yet be, that it be levied from particular lands ; as a judgment against a devisee of lands devised, subject to the payment of a particular sum. So one of several heirs takes land at a valuation in the Orphans' Court, and enters into recognizance to pay money to another heir, and then sells the lands ; and debt is brought or scire facias, on the recognizance, with notice to the terre tenant ; on such suit, the judgment is, as to the terre tenant, to be levied of the lands bound by the recognizance. Yet, in both these cases, there is a judgment within the letter and spirit, too, of the act first cited ; if the amount due on such judgment is paid, and after re- quest the plaintiff does not enter satisfaction on such judgment, I can find no reason why he is not liable to the penalty. "Each and every person having received satisfaction for his or their debt or damages recovered by any judgment in any court of re- cord" would seem to take in every judgment on which any execution could issue or which bound any land ; and if it does not include every judgment in every court of record, which can be satisfied, and has been satisfied by payment of money, I do not see ho\v it can include any judgment. It is not left to this or any other court to discriminate. There may be a defini- tive judgment on a scire facias on a mortgage ; and the act in question has no restriction to the peculiar process by which the judgment was brought into court: nor to whether it binds all lands of the defendant, or only part of his lands ; or whether he has any lands to be bound by it, or not. I then suppose, that the practice, as far back as we have information of the mode of entering judgment on a scire facias on a mortgage, though 199 SUPREME COURT [Dec. Term, (Henry c. Sims.) questionable at first, is like the judgment on a scire facias to show cause why an execution should not issue, too old and too well established to be now altered ; and that a judgment that exe- r*9fi01 CU ^ OT1 issue, is *as much within the letter and spirit of the act first cited, as a judgment quod recuperet. It is a judgment which binds lands, on which an execution may issue for debts or damages ; and if the debt or damages are paid, and satisfaction is not entered on request, the party may incur the penalty of the law. The other objection urged, was to the damages. It is so well settled, that a court of error cannot reverse on that account, that it might seem enough to say that the only remedy for this was by a motion for a new trial ; but it was insisted that there may be cases where the court are bound to tell a jury that only nominal damages can be given, and that this is one of those cases. I will observe that the court here was not asked to tell the jury so. There would be no end of reversing judgments, if we should reverse because the court did not, in every case lay down the law on every point which can be made in a cause, although the point was not brought to their consideration. But I doubt whether there is any general rule, which, under all cir- cumstances, will authorize a court to tell a jury they must find only nominal damages. When an act is done which really in- jures no one, and is done for the purpose of trying a right, nominal damages, are generally directed ; but if, from the evi- dence, the jury believe, that though nominally, to try a right, yet in fact it was done maliciously, or vexatiously, or insolently, with intention to injure at least the feelings of the other party ; they may go beyond nominal damages ; and if the court set aside one verdict and a second jury find in the same manner, I would not advise a judge to set it aside, on the same account ; for it is the legitimate province of a jury to find not only that a fact was done, but what were really the motives and manner of doing it. There is nothing in the act in question from which it can be even inferred that the amount of the verdict should depend on the damages actually sustained. The object is to compel a man to do a plain act of justice, the omission to do which may be vexatious or injurious to another. There is a description of those who may sue, in three several clauses of the act ; first, the defendant or his representatives ; next, the party grieved ; and then, the defendant in the judgment, or the party damnified, and they all mean the same thing ; the defendant, or party damnified, cannot, in this place, be tortured to mean that no person can sue and recover unless he has sustained actual dam- age. I do not say, that if actual damage has been sustained, it may not form a proper subject of consideration with a jury ; but 1835.] OF PENNSYLVANIA. 200 (Wentz D. Wentz.) an insolvent person may sue and recover; a man who never owned any lands may sue and recover ; and the obstinacy of the plaintiff in the judgment in refusing to enter satisfaction ; the manner of refusing ; the hardship of the refusal ; in short, every thing which can and does make acts the subject of praise or cen- sure ; as of honesty or dishonesty, of kindness or cruelty, may enter into the consideration of the jury ; and * I doubt r*9n-n whether there is any case under this act, where the L ^ W1 J money and costs are admitted to be paid, and where the plaintiff repeatedly refuses to enter satisfaction without excuse, in which a court could tell a jury, they must find only nominal damages. Judgment affirmed. Cited by Counsel, 2 Wharton, 324 ; 4 Id. 415 ; 7 Casey, 108 ; 8 Id. 429. Cited by the Court, 1 P. F. Smith, 490 ; 2 Miles, 321. Doubted, 7 Watts, 479. [PHILADELPHIA, FEBRUAKY 1, 1836.] WENTZ against WENTZ. IN ERROR. One died seized of real estate, leaving three daughters, one of whom, A., was married to B. By three several deeds the land was partitioned be- tween them ; but the deed to B. and his wife, recited, that on the death of her father, her share descended to B. ; and conveyed one-third to him, his heirs and assigns. After the death of B., his widow borrowed money, and gave a sealed note for payment, upon which judgment was entered, and then she died. C., the son of A. and B. became administrator, both of his father and mother, and applied to the Orphans' Court for the sale of the land, as the property of A., to pay her debts. The court refused the application, on the ground that it was the property of B. The land was afterwards sold by virtue of proceedings on a mortgage given by A. and B. ; the suit on the mortgage being against C. asad ministrator both of A. and B. The balance of the purchase money, after paying the mortgage, was brought into court, where it was directed to be paid to C. "administrator, &c., as aforesaid;''' and was received by him. In a scire facias, on the judgment above mentioned, brought against C., as administrator of A., it was held that C. must be taken to have received the money as administrator of A. ; and, consequently, that he was liable for the amount to the plaintitf in the scire facias. WRIT of error to the Court of Common Pleas of the County of Chester, to remove the record of a scire facias upon a judg- ment obtained in that court by Maria Wentz, and Arthur Ann- strong, administrators, &c., of Thomas Wentz, deceased, to the use of Mary H. Brinton, against John T. Wentz, who survived Samuel R. Wentz, administrator, &c., of Mary Wentz, deceased. 201 SUPREME COURT [Dec. Term, (Wentz v. Wentz.) In the court below, the following case was stated for the opin- ion of the court, to be considered in the nature of a special ver- dict, viz. : "A tract of land, containing two hundred acres, descended from Charles Kinkead to his three daughters, Hannah, Jane, and Mary (who intermarried with Isaac Wentz,) as tenants in com- mon. They divided it, and executed deeds of partition, duly ac- knowledged and recorded (copies of which are annexed, marked A, B and C.) On the 4th of July, A. D. 1807, Isaac Wentz, and Mary his wife, mortgaged the tract conveyed to them to Thomas Wistar ; which mortgage, by several assignments, subse- r*2021 q uen tly became the property *of Abraham W. Sharp- J less. Afterwards Isaac Wentz died, leaving his wile Mary to survive him ; and on the 13th August, .1829, a judgment was entered in the Court of Common Pleas of Chester county, in favor of Maria Wentz and Arthur Armstrong, administrators of Thomas Wentz, deceased, against the said Mary Wentz, which was subsequently assigned to Mary H. Brinton. Afterwards Mary Wentz died, and letters of administration upon her estate were granted to John T. Wentz, and Samuel R. Wentz. At, or about the same time, letters of administration, de bonis non, &c., on the estate of Isaac Wentz, were granted to the said John T. Wentz. Suit having been instituted by the said administrators of Thomas Wentz, a loan of the money upon the security and transfer of the said judgment to the said Mary H. Brinton, was negotiated through the instrumentality of the administrators of Mary Wentz, who, apprehending the title to the property de- scribed in the deed A, to be in Mary Wentz, supposed they could obtain an order from the Orphans' Court of Chester county to sell the same, for the payment of the debts of the said Mary. Application by petition to the said court, was accordingly made but the court being of opinion that the title to two-thirds of said property was in Isaac Wentz, and not in Mary, refused to grant an order of sale, and recommended a sale under the mortgage to Thomas Wistar. Accordingly, levari facias , at the suit of Abraham W. Sharpless, assignee of Isaac W. Morris, who was assignee of John Price, executor, &c., of Thomas Wistar, de- ceased, against John T. Wentz, administrator, &c., of Isaac Wentz, deceased, and John T. Wentz, and Samuel R. Wentz, administrators, c., of Mary Wentz, deceased issued out of the Court of Common Pleas of said county, returnable to February term, 1833 ; by virtue of which the sheriff of said county sold the said property, described in deed A, to Hannah Kinkead, for $4,000. Out of the proceeds of sale, the said mortgage was dis- charged, and on the 22d day of September, 1834, the undisputed one-third of the balance, belonging to the estate of Mary Wentz, 1835.] OF PENNSYLVANIA. 202 (Wentz v. Wentz.) was applied in part payment of a judgment, recovered against the said Mary Wentz, by Hannah Kinkead, prior to the judgment in favor of the administrators of Thomas Wentz, leaving still due on the said judgment, in favor of Hannah Kinkead, the sum of $394 78|. The remaining two-thirds of the balance of the said purchase money, consisting of $1,686 40, was paid into the said Court of Common Pleas, by the sheriff, in pursuance of a rule granted by the said court, in the said case of Sharpless, assignee, c., against Wentz, a*dministrator, &c., (as above recited,) of which the following is a copy of the docket entry : ' February llth, 1833 On motion of Mr. Bell, of counsel Avith John T. Wentz, administrator, &c., rule on the sheriff to pay into court the sum of $1,686 40, being two-thirds of the balance of the said purchase money, after deducting *the r^ono-i amount levied under the above mentioned execution with L costs.' On the same day, John T. Wentz obtained from the said court, in the said case, a further rule, of which the following is a copy of the docket entry : ' February llth, 1833 On motion of Mr. Bell, rule to show cause why John T. Wentz, administrator, &c., as aforesaid, should not take out of court, the said sum of $1686 40.' On the 10th day of April, 1833, the rule was enlarged, until the 10th day of June, then next, and the said court directed ' notice to be given to the administrators of Mary Wentz, deceased, and to the creditors and others interested in the estate of the said Mary Wentz, deceased, by publication of a copy thereof for four weeks successively, prior to the said 10th day of June, in the Village Record, and American Republican and Chester County Democrat.' On the return of the said rule, proof was made to the satisfaction of the said Court of Common Pleas, of the due . publication of a notice in the newspapers, mentioned in the said order of the court. On the 13th of June, 1833, no person having appeared to object, the said court being of opinion that the said John T. Wentz, as administrator, &c., of Isaac Wentz, deceaseds, was entitled to receive the said sum of $1686 40, made the said last mentioned rule obtained by him, absolute and, on the same day, the prothonotary of the said court paid to the said John T. Wentz, the said sum, who gave the following receipt: 'Rec'd June 13th, 1833, of John W. Cunningham, prothono- tary, one thousand six hundred seventy-six dollars and ninety- seven cents, pursuant to order of court. $1676 97.' JOHN T. WENTZ. The said John T. Wentz has since, and before the bringing of this suit, distributed the said money among the heirs of Isaac Weritz, deceased, the said John T. Wentz, administrator, &c., of VOL. i. 14 203 SUPREME COURT [Dec. Term, (Wentze. Wentz.) Isaac Wentz, being the same John T. Wentz who is also surviving administrator, &c., of Mary Wentz, and the heirs of the said Isaac Wentz, being the same persons as the heirs of the said Mary Wentz, to wit: the said John T. Wentz, Charles K. Wentz, Samuel R. Wentz, Jeremiah M. Wentz, George G. Wentz, Isaac Wentz, and Hannah Wentz. The question for the opinion of the Court is, whether the said plaintiffs, to the use of Mary H. Brinton, are entitled to recover from the said John T. Wentz*, as surviving administrator of the said Maria Wentz, deceased, the said sum of $1686 40, or any part thereof. If the court shall be of opinion with the plaintiffs, then judgment to be entered for such sum as the court shall think due, with costs. But if the court shall be of opinion with the defendants, then judgment to be entered for the defendants, with costs. (Signed) W. H. DILLINGHAM, Plaintiff" 1 * Attorney. THOMAS S. BELL, Defendant'* Attorney. June 8, 1835." f*2041 f partition, referred to in the foregoing J statement, were dated respectively on the 13th of June, 1801. The deed marked A was as follows: "This indenture, made the thirteenth day of June, in the year of our Lord one thousand eight hundred and one, between Isaac Wentz, and Mary his wife, of Sadsbury township, in the county of Chester, and State of Pennsylvania, said Mary being one of the daughters of Charles Kinkead, late of the township and place aforesaid, deceased, of the one part, Hannah Kinkead of the township and state aforesaid, another daughter of the said Charles Kinkead, deceased, of the second part, and Jane Kinkead of the township, county and state aforesaid, also, another of the daugh- ters of Charles Kinkead, deceased, of the third part. Whereas the said Charles Kinkead, late father of the said Mary Kinkead, Hannah Kinkead, and Jane Kinkead, died seized in his demesne, 88 of fee of and in a certain tract of land, situated in Sadsbury township, Chester county, and state aforesaid, containing two hundred acres, and allowance of six per cent, for roads, &c., as by patent, bearing date the 10th of December, A. D. 1745, given under the hands and seals of John Penn, Thomas Penn, and Richard Penn, Esquires, absolute proprietors, of the state afore- said, recorded in the office for the recording of deeds for the county and city of Philadelphia, in Patt Book, vol 15, page 273, reference being had thereunto, will more explicitly appear, without leaving behind him any male heir, or making any dis- position of the above described premises, or any part thereof, by will or otherwise, whereby and by which means, all and sin- 1835.] OF PENNSYLVANIA. 204 (Wentz . Wentz.) gular, the said above described premises, a tract of land, the real estate of Charles Kinkead, deceased, are descended and come unto the said Isaac Wentz, Hannah Kinkead, and Jane Kinkead, his said daughters, and daughter's husband. NOAV this indenture witnesseth, that the said Isaac Wentz, and Mary his wife, and Hannah Kinkead, and Jane Kinkead, have made partition, and by these presents do make full, perfect, and absolute partition, of the above described tract of land, to and amongst them, the said Isaac Wentz, Hannah Kinkead, and Jane Kinkead, three parts, in the manner following^ that is to say, that the said Isaac Wentz, his heirs or assigns, shall have, hold and enjoy, to the only proper use and behoof of the said Isaac Wentz, his heirs and assigns for ever, all that the following described piece or par- cel of land, situated in Sadsbury township, Chester county, and state aforesaid, [here follows a description,] containing eighty- eight acres, and one hundred and thirty perches of land, be the same more or less, for the full share and proportion of his, the said Isaac Wentz, of, and in, and to, all and every mes- suages, hereditaments, and premises, above mentioned, so de- scended unto them, the said Isaac Wentz, Hannah Kinkead, and Jane Kinkead, as aforesaid : and the said * Hannah Kinkead and Jane Kinkead do, and each of them doth, by these r*oncn presents, grant, assign, release, and confirm unto the said Isaac Wentz, his heirs and assigns, the said messuages, he- reditaments, and appurtenances, so as aforesaid agreed to be held, as aforesaid, his full share or proportion of the premises above mentioned, and descended as aforesaid to the said Isaac Wentz, Hannah Kinkead, and Jane Kinkead, and all the estate, right, title, interest, claim, challenge, and demand whatsoever, of them, the said Hannah Kinkead, and Jane Kinkead, of, in, or to, the said messuage, piece or parcel of land, above mentioned and descended, and hereby released unto the said Isaac Wentz, as aforesaid, to have and to hold the said messuage, piece or parcel of land, with the appurtenances, hereby released and confirmed, as mentioned or intended, so to be unto the said Isaac Wentz, his heirs and assigns for ever, and the said Hannah Kinkead, and Jane Kinkead, doth hereby grant, for themselves and their heirs, that they and their heirs, the said described piece or parcel of land, containing eighty-eight acres, and one hundred and thirty perches, be the same more or less, hereditaments and appurte- nances, unto the said Isaac Wentz, his heirs and assigns, against them, the said Hannah Kinkead, and Jane Kinkead, and their heirs and assigns, against all and every other person or persons whomsoever, lawfully claiming, or to claim the same, or any part thereof, shall and will warrant, prove, and defend. In wit- ness whereof, &c." 205 SUPREME COURT [Dec. Term, (Wentz v. Wentz.) The deeds marked B and C, were similar in their recitals to the preceding. They conveyed to Hannah Kinkead, and Jane Kink- ead, respectively, their respective heirs and assigns, the parts or shares which, by the alleged partition, were allotted to them, in severalty ; and each contained a covenant of general warranty, by Isaac Wentz, and Mary his wife. The following is a copy of the note given by Mary Wentz : " Sixty days after date, I promise to pay Thomas Wentz, his heirs and assigns, the just and full sum of twelve hundred and ninety-nine dollars, twenty-one cents, in lawful money of Penn- sylvania, with interest from the date hereof. I further authorize and empower the prothonotary of Chester county, to enter judg- ment against me, and my heirs and assigns, without defalcation ; with stay of execution till after the date hereof, as witness my hand and seal, this 3d day of December, one. thousand eight hun- dred and twenty-seven. MARY WENTZ, [L. s.] Witnesses present, JOHN T. WENTZ, MARIA WENTZ." r*9ftfiT * Endorsed thereon was the following : " The balance due the estate of Thomas Wentz, de- ceased, on the within obligation, having been paid to the adminis- trators, by Mary H. Brinton, of the borough of West Chester, on the 19th of January, 1832, (the particular sum appearing on the cal- culation made and in her possession.) We, the said administrators, in consideration of the same, hereby assign, transfer, and set over this obligation, and all right of recovering the amount yet due on the same, to her, the said Mary H. Brinton, her executors, administrators and assigns. Witness our hands and seals, Febru- ary 24th, 1832. MARIA WENTZ, [L. s.] ARTHUR ARMSTRONG, [L. s.] Sealed and delivered in the presence of I. A. DANNER. The interest has been paid up to the 19th of January, 1832, to Mr. A. Armstrong, one of T. Wentz's administrators." The following is a copy of the entries on the docket : In the Common Pleas of Chester "Maria Wentz and Arthur Armstrong, administra- *& tors, &c., of Thomas Mary Wentz. county. August 13th, 1829. Judgment for the Plaintiffs, for the sum of ,,r ltz ' d $1,299 21, with interest thereon from the 3d day of December, 1827. (See Judgment Docket, J. p. 10.) 1835.] OF PENNSYLVANIA. 206 (Wentz . Wentz.) For value received, I, Arthur Armstrong, one of the adminis- trators above named, do hereby assign, transfer, and set over, unto Mary H. Brinton, her executors, administrators, and as- signs, the above stated judgment, and all moneys due, and to be- come due thereon ; and also the obligation and warrant of attor- ney, upon, and by virtue of which the said judgment was entered and obtained, and all the right and interest of the said administra- tors, the plaintiffs above named, in, and to the same. Witness my hand and seal, this 19th day of January, Anno Domini, 1832. ARTHUR ARMSTRONG, [L. s.] Signed, sealed, and delivered, in the presence of FRANCIS JAMES, THOMAS WILLIAMSON. I, John Thomas Wentz, one of the administrators, &c., of Mary Wentz, the defendant above named, deceased ; do hereby confess and acknowledge, that the above mentioned principal sum of * twelve hundred and ninety-nine dollars, and r*o()71 twenty-one cents, at this day remains due and unpaid upon the above stated judgment. Witness my hand and seal, this 19th day of January, A. D. 1832. JOHN T. WENTZ, [L. s.] Witnesses present, FRANCIS JAMES, THOMAS WILLIAMSON." The letter of attorney, referred to in the statement, is as fol- lows: " To all people to whom these presents shall conle, I, Maria Wentz, one of the administrators of Thomas Wentz, deceased ; do hereby authorize and empower my co-administrator, Arthur Arm- strong, in my name and stead, and in my behalf, to assign and and transfer to Mr. Williamson, of Chester County, a certain judgment, now held by the estate of the said Thomas Wentz, de- ceased, against the estate of Mary Wentz, in sai(l county of Chester, hereby investing the said Arthur Armstrong, with full power to act in the premises, as if I were personally present. Witness my hand and seal, this 18th day of January, A. D, 1832. MARIA WENTZ, [L. s.J Lancaster City, 88.: Personally appeared before me, a Justice of the Peace, of the county of Lancaster, Maria Wentz, above named, and in due 207 SUPREME COURT [Dec. Term, (Wentz v. Wentz.) form of law, acknowledged the above instrument to be her act and deed, and desired the same to be recorded as such. Witness my hand and seal, this 18th day of January, 1832. GEORGE MATTER, [L. s.]" The notice given by the prothonotary, in pursuance of thp order of the court, was as follows : "Notice. Abraham W. Sharpless, assignee of Isaac W. Morris, who was assignee of John Peirce, executor, &c., of Thomas Wistar, deceased. vs. In the Common Pleas of Chester county, of Feb- ruary term, 1835. Le- vari Facias. Land sold to Hannah Kinkead, for $1000. [*208] John T. Wentz, administrator, &c., de bonis non, of Isaac Wents, deceased, and John T. Wentz and Samuel R. Wentz, administrators, &c., of Mary Wentz, deceased. Amount of money paid into court by the sheriff, in pursuance of a rule obtained on him for that purpose, $1686 40, being two- thirds of the balance of said purchase money, after deducting the amount levied under the above mentioned execution, with costs. * February 18, 1833. On motion of Mr. Bell, rule to show cause, why John T. Wentz, administrator, de bonis non, as aforesaid, should not take out of court the said sum of $1686 40. April 10, rule enlarged until the 10th day of June next, and notice to be given to the administrators of Mary Wentz, deceased, and to the creditors and others interested in the estate of the said Mary Wentz, deceased, by publication of a copy thereof, for four weeks successively, prior to the said 10th day of June, in the Village Record, and American Republican and Chester County Democrat. From the record, JOHN W. CUNNINGHAM, ProiKy. April 24, 1833." The following is a copy of the docket entries in this case : " Abram 'W. Sharpless, assignee of Isaac W. Morris, who was assignee of John Peirce, executor, &c., of Thomas Wistar, deceased. vs. John T. Wentz, administrator, de bonis non, of Isaac Wentz, deceased and John T. Wentz, and Samuel R. Wentz, administrators, &c., of Mary Wentz, deceased. In the Common Pleas of Chester county, of Feb- ruary term, 1833. Le- vari Facias. Land sold to Hannah Kinkead, for $4000. 1835.] OF PENNSYLVANIA. 208 (Wentz v. Wentz.) February 11, 1833. On motion of Mr. Bell, of counsel with John T. Wentz, administrator, &c., rule on the sheriff to pay into court the sum of $1686 40, being two-thirds of the balance of the said purchase- money, after deducting the amount levied under the above mentioned execution, with costs. February 11, 1833. On motion of Mr. Bell, rule to show cause why John T. Wentz, administrator, &c., as aforesaid, should not take out of court, the said sum of $1686 40. April 10, 1833, rule enlarged until the 10th day of June next, and notice to be given to the administrators of Mary Wentz, deceased, and to the creditors and others, interested in the estate of the said Mary Wentz, deceased, by publication of a copy thereof, for four weeks successively, prior to the said 10th day of June, in the Village Record, and American Republican and Chester County Democrat." Upon this case, the Court of Common Pleas rendered judgment for the defendant. Whereupon the plaintiff removed the record to this court. Mr. Dillingham, for the plaintiff in error. This is a case of great hardship for Miss Brinton, the party for whose use this scire facias was prosecuted, if the decision of the court below is to be sustained. The conduct of the defendant, throughout these transactions, was * such as equity is always eager to re- r*oAcn lieve against. There is no obstacle in the way of a de- cision by this court upon the merits, since it was agreed that the question should be raised upon this issue. 1. There can be doubt of the intentions of the parties to the deeds of partition. The papers were drawn by a person ignorant of the laws regulating the descent of land in this state, and un- skilful in conveyancing. The object was merely to make par- tition, not to alter the right of the married sister, Mrs. Wentz. This is obvious from the recital. Here is the case of a mistake, then, which this court has more than once allowed to be corrected on parol evidence. Leek. v. Cowley, (10 Serg. & R. 176,) is in point. Thompson v. M' Clenachan , (17 Serg. & R. 110.) Equity will, under these circumstances, consider Isaac Wentz as holding the fee in trust for his wife ; and, on his death, his heir at law, would be held to have succeeded to the legal estate only, and a conveyance would be directed. In our courts, this convey- ance would be presumed, and Mrs. Wentz could have recovered in ejectment. 2 Roper on Husband and Wife, ch. 18, 151 ; Fogehonger v. Somerville, (6 Serg. & R. 267 ;) Stoolfoos v. Jenkins, (8 Serg. & R. 167 ;) W Culloh v. Wallace, (8 Serg. & R. 181.) 2. The loan, by Miss Brinton to the estate of Mary Wentz, 209 SUPREME COURT [Dec. Term, (Wentz t>. Wentz.) was made on the faith of her being the owner of this land, and on the application and representation of John T. Wentz, who acted in the double capacity of administrator of the goods, &c., of his mother, and administrator, de b-mis non, &c., of his father. He was a witness to the assignment of the judgment ; and applied to the Orphans' Court for authority to sell this land as the pro- perty of his mother. Then, when the land was sold under the mortgage given by his father and mother, it was his duty to apply the balance of the proceeds to the payment of Miss Brinton's judgment, or at least to have given her sufficient personal notice of the proceedings to have enabled her to make application for it. Instead of doing this, he applied, through his attorney, to the court, for leave to take it out. The docket entries show, that the application was made by him as " administrator," &c., yet the advertisement states him as "administrator, de bonis won," &c. I contend that this notice was insufficient ; and Miss Brinton being the only creditor, and living on the opposite side of the street, in the same town, the want of personal notice to her, im- plies a fraudulent intent, which vitiates the whole proceeding. We do not deny, that the decree of the court is conclusive ; but we submit that the defendant received and holds the money as trustee for Miss Brinton. Mr. Bell, for the defendant in error. It is well settled, that the decree of a court of competent jurisdiction will not be over- F*9im hauled *in a collateral proceeding. The act of 1827, J gave the Common Pleas plenary power in proceedings of this kind. Nothing but proof of fraud will countervail this. Fraud is never to be presumed. The defendant complied strictly with the orders of the court, who proceeded with great caution. It is said, that he should have claimed this money as adminis- trator of Mary Wentz. The answer to this is, that the Orphans' Court had decided against him on this point, and declared the property not to be in Mary Wentz. Besides, there were judg- ment creditors of Mary Wentz, as against whom the adminis- trator was not entitled to recover the money. He has distributed this money on the faith of the decree of the court, and if it be recovered in this proceeding, he has no remedy. Clark v. Calla- ghan, (2 Watts. 261.) It is said that Isaac Wentz was trustee for his wife, and that equity will correct the mistake. There is no case showing that equity will interfere after a lapse of twenty years, in favor of a creditor of the alleged cestui que trust, whose lien accrued after the transaction. Sugden on Vendors, &c. 107. The cases of M l Culloh v. Wallace, Foyehonger v. Somerville, and Stoolfoos v. Jenkins, go upon the ground that the Orphans' Court had not power to decree the wife's estate to her husband. Here 1835.] OF PENNSYLVANIA. 210 (Wentz v. Wentz.) there is no evidence that the wife did riot intend to give her estate to her husband. The deeds were all executed on the same day, and in the presence of the same witnesses. It is to be presumed, that Mrs. Wentz was fully conusant of the whole proceeding. Mr. Sergeant, in reply. If there was not actual fraud in the receipt of this money, there is certainly mala fides in retaining it, against the creditor of the. mother, whose estate they knew it to be. It is said that there has been an adjudication in this case, which cannot be got over. Now, in the first place, the money was adjudicated to "John T. Wentz, administrator" &c.,upon a rule which spoke of him as "administrator as aforesaid;" that is, with reference to the title of the suit, in which he is named as administrator both of his father and mother. Then, who were the parties to this decree ? The plaintiff in the execution was satisfied. The defendant was the only party. Why did he not make Miss Brinton a party ? There was not such notice as law and justice required. The defendant was trustee for her, and could not act for himself. In fact, he went before the court in two capacities, and asked the court to decide in which he was to retain the money. The act of 1827 applies to cases of dispute among creditors ; not to a case like this. It is said, that equity will not correct mistakes, unless they are clearly proved. This does not mean proof aliunde. Here the proof is in the paper itself. The very first recital is a plain legal falsehood. The sole consideration for the conveyance is the *idea that, on r*9i-n the death of the wife's father, her share of his real estate descended to her husband. Nothing but a partition was intended by the parties. The opinion of the court was delivered by GIBSON, C. J. The vesting of the legal title in Isaac Wentz was so palpably the effect of mismanagement in making partition among the sisters, and not of an original purpose to convey to him, that a Chancellor would not have hesitated to compel him to convey to his wife. The deeds seem to have been prepared and executed under a common error, in believing him to be enti- tled to her land, as well as her chattels ; and the case is, conse- quently, one which equity should have instantly set right.* Per- haps it would be found, that, as nothing moved from him, there was no consideration to raise a use to him by bargain and sale ; and that he had not the estate even at law. But, in the one or the other of these aspects, the proceeds of it belonged to the *See 3 Watts & Sergeant, 230, 522 ; 12 Casey, 387 ; 10 Wright, 346 ; 8 P. F. Smith, 386. 211 SUPREME COURT. [Dec. Term, (Wentz t>. Wentz.) creditors of the wife, when they were brought into court ; and it is to be seen whether they passed by an adjudication adverse to her title, when they were taken out. It is not disputed, that, as to everything adjudicated, a decree of distribution concludes the rights of all who were parties to it, either immediately or by representation. If, then, it be consid- ered that the money was decreed to the son, as the administrator of his father, and not of his mother, the decree must be held adverse to the mother's creditors, and conclude their rights ; but if it be considered as decreed to him, without discrimination of character, the law will refer the receipt of it to that character, in which alone it could, without a special decree, be legally re- ceived. Now, though an administrator may not be allowed to handle the proceeds of land in court, in order to pay it over to the lien creditors, whose recourse to the fund is immediate, he may undoubtedly demand for the general creditors, where there are any, whatever remains after satisfaction of the liens, in order to bring it into a course of administration. Unless, then, the fund was explicitly awarded to the son, as the administrator of the father exclusively, we must say, that no more was adjudi- cated against the interests of the plaintiff in the present action, than that she was not entitled by virtue of her judgment as a lien ; that she was put upon the footing of a creditor whose debt had survived its lien, and whose right to receive, is to be post- poned to that of the representative of her fellow creditors, with whom she is to come in pari passu. Nor are the consequences different, though she be the only remaining creditor; for her lien being put aside, the money goes into a course of admin- istration on general principles, and she can receive payment but at his hands. Such may not have been the intended principle r*21*?l * ^ tne Decree, but such is its legal effect. On the maxim, then, that co-existent rights, in the same indi- viduals, are to be treated as if they existed separately in differ- ent individuals, the question is, how far does the decree of dis- tribution purport to distinguish between the representative of the husband and the representative of the wife ? The money being in court, the son in whom both characters were united, but not blended, procured a rule to show cause why the " administrator, &c., as aforesaid," should not have leave to take it out. These words, " administrator, &c., as aforesaid," palpably refer to the title of the levari facias, on which the money was made; in the record of which the rule was entered, and in which he is named a defendant, as the administrator, respectively of both his father and his mother. It is true that it is stated in the body of the case, that he was adjudged to be entitled as the administrator of his father, which, taking it to be conclusively established by the 1835.] OF PENNSYLVANIA. 212 (M'Knightfl.Read.) agreement, would carry the cause against the plaintiff. But in the record, which is a part of the case by express reference, no more appears than that the rule was simply made absolute ; and, consequently, that the money was ordered to him without dis- tinction of character. That fact being established, the result is, that the fund, though actually distributed among the children of his father, potentially remains in his hands, for his mother's creditors; and that the plaintiff, being the only creditor, is entitled to have execution for the principal and interest of her judgment. Judgment of the court below reversed, and judgment for the plaintiff, according to the terms of the case. [* PHILADELPHIA, FEBRUARY 1, 1836.] [*213] M'KNIGHT against READ and Others. CASE STATED. A testator gave one-third of his estate, real and personal, to his wife, one other third to his children, who may be living at the time of my death ;" directing the interest to be paid to their guardians ; and as to the re- maining one-third, he directed that out of the principal of the one-third . of his personal estate, which might remain, after ' ' the foregoing devises were satisfied," his executors should pay certain pecuniary legacies, and if there should not be sufficient money from this source, that his real estate should be sold for the purpose : and as to certain annuities which he gave, he directed that they should be "paid out of the rent of the third part of the real estate, thereby devised, or out of the interest of the third part of the personal estate, thereby devised, which may remain after the payment of pecuniary legacies ; or out of the interests of the proceeds of sale of the real estate." In another part of the will, the testator appointed a guardian for his son A., and a guardian for his daughter B. At the date of his will, and at the time of his death, he had two children, A. and B., and his wife was pregnant with a third child, who was born after his death. Held, 1. That the child in ventre sa mere, was not to be considered as living, within the meaning of the will ; and, consequently, that under the act of 1794, the will was revoked, so far as respected the share or proportion of such child, of the estate. 2. That he took one-third of two-thirds thereof, which was to be deducted, in the first place, from the whole amount ; that the remainder was to be divided into three parts ; of which the widow was to have one-third ; the two children, A. and B., one-third between them, and the collateral legatees, the remaining third. 3. That the collateral legacies were to abate in equal proportions. THIS was an action brought by Catherine M'Knight against Alexander Read and Frederick V. Krug, executors of the will 213 SUPREME COURT [Dec. Term, (M 'Knight c. Read.) of James Gray, deceased, to recover the arrears of an annuity be- queathed to the plaintiff by the said James Gray. A case was stated for the opinion of the court, and the follow- ing facts were agreed upon, to be considered in the nature of a special verdict. James Gray, of the City of Philadelphia, made his will, dated the 25th day of May, 1833, in the following terms: " Be it remembered that I, James Gray, of the City of Phila- delphia, merchant, do make and ordain this, my last will and testament, hereby revoking all other wills by me heretofore made. Item. I direct that all my just debts, and funeral expenses, be fully paid and satisfied. Item. I direct, that after my decease a just and true appraise- ment of all my estate, real and personal, be made, as soon as practicable, by two respectable men, to be appointed by my exe- cutors, hereinafter named, and delivered to them to guide and regulate the disposition, hereinafter made. f*2141 *Item. I give and devise to my beloved wife Ellen, J for her sole and separate use, in fee simple, one full, equal, undivided third part of my estate, real and personal, sub- ject to the power of sale hereinafter vested ; and she is hereby permitted to make her selection of such articles of personal estate, at the appraised value, to the amount of one- third of the value of my personal estate, as she may choose ; and if she does not select to the amount of one-third, then my executors, hereinafter named, are required to pay her the balance of her third of my personal estate in money. Item. I give and devise, one other full, equal, and undivided third part of my estate, real and personal, to my beloved children, who may be living at the time of my death, in fee simple, as tenants in common, and if any of my children should be dead at the time of my decease, leaving lawful issue, then, I give and de- vise to such issue, as tenants in common, in fee simple, the share or shares which would have passed or gone to his or her, or their parent or parents, if they had been living at the time of my death ; and it is my desire and will, that the share or part of my personal estate, herein devised to my children, shall be put out at interest, and managed by my executors, hereinafter named, to the best advantage, until my said children shall respectively at- tain to full age, or be married. The income and interest to be paid over to their guardians, hereinafter named ; and as to the real estate hereby devised to my said children, the same is to be subject to the power of sale, hereinafter directed ; and the said income of the real estate, herein devised to my children, so long as it may remain unsold, shall be received by my executors, and 1835.] OF PENNSYLVANIA. 214 (M 'Knight v. Read.) paid over to the guardians, respectively of my children, until they severally attain full age, or marriage ; and in case my said daugh- ter shall marry, then I direct, that the portion of personal and real estate devised to her, shall be held by her to her sole and separate use, without any control or interference of any husband she may have. Item. As touching or concerning the other remaining one, full, equal, undivided third part of my estate, real and personal, I order and direct that out of the principal of the one-third of my personal estate, which may remain after the foregoing devises are satisfied, that my executors pay and discharge the several pecu- niary legacies which I have given ; and if there shall not be suf- ficient money arising from this source, that then my real estate may be sold, to accomplish said object, as hereinafter directed. And as to the yearly sums or annuities which I am now about to give and devise ; I direct, that the same be paid out of the rent of the third part of my real estate, hereby devised, or out of the interest moneys of the third part of my personal estate, hereby devised, which may remain after the payment of pecuniary lega- cies, or out of the interest of proceeds of sales of my real estate, which may be made, as hereinafter directed. In accordance with the foregoing regulations,*! give and devise to my r*oic-i nephew, John Johnstone, the sum of five hundred dol- lars, as soon as he is regularly licensed to preach the gospel, to purchase a library for his use. Item. I give and devise to my beloved mother, the sum of three hundred dollars per annum, to be paid to her by my execu- tors, half yearly, for and during the term of her natural life. Item. I give and devise to my sister, Catharine M'Kriight, the sum of two hundred dollars per annum, to be paid to her by my executors, half yearly, during her natural life, if she shall so long remain unmarried. Item. I give and devise to my nephew, John Johnstone, the sum of three hundred dollars per annum ; to be paid to him half yearly, by my executors, for his support and education, until he shall be licensed to preach the gospel, and for one year thereafter, but no longer ; and it is my desire, that his education be full and complete, as far as is practicable. Item. If the debts due to me from the estates of Joseph Thornborough, deceased, and his niece, Susan Mosher, deceased, be not paid off before my death, then I give and devise the inter- est which may become due from those debts, from the time of my death, to be paid over, half yearly, by my executors, to my sister-in-law, Mrs. Isabella Sample, to pay for the education of her children, according to her judgment ; and if her children severally attain to full age, then I give and devise the principal 215 SUPREME COURT [Dec. Term, (M 'Knight t). Read.) of said debts to said children, or those who may arrive at age, to be equally divided among them, share and share alike. Item. I direct my executors to place out at interest, on good security, at the best interest they can obtain, (but not exceeding legal interest,) the sum of two thousand dollars ; and the interest thereof I direct them to receive and pay over, half yearly, for, and in discharge of, the education of my brother William's children, so far as the same may be needed and adequate. Item. I direct, that the sum of one thousand dollars be put out at interest, in like manner as above stated, and the interest thereof to be paid over, half yearly, for, and in the education of the children of my sister, Ann Johnstone, excepting her son, John Johnstone, whose education is hereinbefore provided for. Item. I give and devise to the corporation of the Dutch Re- formed Church, in Crown street, Philadelphia, the interest I have in a pew in said church, and I direct that the same be sold by them, for the best price that can be obtained therefor, the pro- ceeds to be paid to the treasurer, and the amount thereof be ex- pended by the deacons of said church, in installments of twenty- five dollars per annum, until the whole sum is exhausted, in pur- chasing fuel for poor female members of that church, according to the discretion of the deacons. Item. As to all the rest, residue, and remainder of my estate, r*91fi1 * wheresoever and whatsoever, I give and devise one- L ^"J third part thereof to my sister, Sidney Binnis, and her heirs ; and the remaining two-thirds parts, I give and devise to the children of my sisters, Ann Johnstone and Mary Roland, and my brother William, to be divided amongst them in equal parts, as tenants in common in fee. Item. I nominate and appoint my brother-in-law, Joseph Mosher, Esq., of Lancaster county, to be guardian of the person and estate of my daughter Isabella, and my friend, Frederick V. Krug, of this city, to be guardian of the person and estate of my son James. Item. I constitute and appoint my brother-in-law, Alexander Read, and my friend, Frederick V. Krug, to be the executors of this, my last will and testament. And whereas, it may be necessary, in order to raise money to pay legacies, or to make advantageous dispositions and invest- ments, or to save the expense of partitions, in order to make easy and just distribution of my real estate, that a power be vested in my executors to make sale thereof. Now, I do hereby authorize and empower my said executors, and the survivor of them, to make sale of my real estate, according to their judg- ment and discretion, and as may seem to them best for the inte- rest of my estate, and good and sufficient deeds therefor, to 1835.] OF PENNSYLVANIA. 216 (M 'Knight t>. Read.) make and execute to the purchaser ; and the proceeds of said sales to invest, on good security, in the public stocks, or ground rents, or bonds and mortgages, for the same uses and purposes and per- sons as the real estate, so to be sold, appropriated, and devised, in this my last will and testament. And I direct that my execu- tors have, and take the care and management of my real estate, so as to receive the rents, lease, and repair the same, and pay all taxes and other incumbrances, so long as the same remains unsold and undivided ; the nett income thereof, so received by them, to be divided and appropriated half yearly, according to the terms and provisions of this my will. In witness whereof, the whole of the foregoing will being my own hand writing, I have hereunto set my hand and seal, this twenty-fifth day of May, anno Domini, one thousand eight hun- dred and thirty-three." The testator died on the 26th day of June, 1833, being then absent from home, on a journey to the western states. At the time of his death he left a widow and two children, Isabella and James, (who are still living,) and left his wife pregnant with a son, who was born in the month of October following, and named Alexander, and is still living. The defendants proved the will, .and took out letters testament- ary. ' The nett value of the real and personal estate of the tes- tator, after payment of his debts, will be from $36,000 to $40,000. * The questions submitted to the court, upon the fore- r*oi7-| going facts, are : 1. Whether, so far as regards his posthumous son, Alexander, the said James Gray died intestate ; or whether the said Alexan- der is included, and will take, under the devise by the testator, " of one full, equal, and undivided third part of his estate, real and personal, to his beloved children who may be living at the time of his death." 2. If the said James Gray died intestate, so far as regards his after born child, Alexander, then what share or proportion of his father's real and personal estate the said Alexander is to take, and what shares and proportions are to be taken by the other two children, Isabella and James. 3. If the said James Gray died intestate, so far as regards his after born child, Alexander, and the court should be of opinion that the said Alexander is entitled to one-third of the real and personal estate of his father, subject to the interest (if intestate) . of his mother therein, then whether the pecuniary legacies, and also the annuities, including the annuity bequeathed to the plain- tiff, are to be paid in full, or abated pro rata. 4. If the said James Gray died intestate, so far as regards his 217 SUPREME COURT [Dec. Term, (M 'Knight*. Read.) said after born child, Alexander, is the power of sale given by the will to the executors revoked, as to the part which the said Alexander will take. Mr. F. W. ffubbell, for the plaintiff. The testator gives one- third of his estate to his children, who may be " living at the time of his death." I contend that the posthumous child is to be considered as living at the time of the death of the testator ; and, therefore, Hhat he was "provided for" within the meaning of the 23d section of the act of 17th April, 1794. The authori- ties show that children " living," include such as may be " in ventre sa mere." Pemberton v. Parke, (5 Binn. 601 ;) Swift v. Duffield, (5 Serg. & R. 38.) The words of this will are exactly the same with those in Pemberton v. Parke. The words, " if any of my children should be dead at the time of my decease," &c., must refer to more than two. As to the rights of the an- nuitants, and other legatees, there are no words which will post- pone them, as among themselves. 2 .Williams on Executors, 837, 841. When the bequest is of a sum which is to supply an annual interest, it is an annnuity. I contend that, as regards the real estate, there is no postponement of the annuitants to the pecuniary legatees. It is impossible now to say, what the in- tention of the testator was, except as it may be gathered from the will ; and it would seem, from this, that he did not desire to leave his children a large proportion of his property. As to the power of sale, that seems to be settled by Coates v. ffuyhes, (3 Binn. 498.) r*9181 *Mr. James S. Smith, for the defendants. The rule, that a child in ventre sa mere is to be considered as living at the death of its parent, is an artificial one, introduced by the English courts, to prevent certain hardships which would otherwise ensue. Wilson v. Brush, (4 Johns. Oh. Rep. 506;) 4 Kent's Com. 506 ; 2 Williams on Executors, 94. If it be for the benefit of the child that the contrary doctrine should prevail, he will be considered as not living. Watkyns on Descents, 142 ; Doe v. Clark, (2 Hen. Black. 394 ;) 1 Ves. sen. 86 ; Swin- burne, pt. 4, s. 15. In Swift v. Duffield, Judge Duncan stated the rule in the same way. The consequence of admitting this child to share in the one-third given by the testator to his children, will be to reduce them to about $4,000 each ; while the collateral relations will get about $17,000 among them. The will shows, that he did not look forward to the birth of his child. 1st. He provides that the interest upon the shares of his children shall be paid to their "guardians, hereinafter named." He afterward names guardians for James and Isabella, but 1835.] OF PENNSYLVANIA. 218 (M 'Knight . Read.) takes no notice of the unborn child. 2d. It was his obvious in- tent to protect the share of a female child. This is evident from the provision for the share of Isabella. Yet nothing is said respecting the unborn child ; whose sex was of course unknown. It is evident that Mr. Gray supposed himself to be richer than it turns out that he was. The words of the bequests to the collat- eral relations are rather remarkable. He gives but the principal of the third part of his estate, "after the foregoing devises are satisfied." This may be supposed to mean, after all contingencies. He knew that a large part of his estate consisted of outstanding debts. The case of Coates v. Hughes, decides that the birth of issue is not an absolute revocation, but only so as to matters in which it may be beneficial to the wife or child to have it so con- sidered. The word any, relied upon on the other side,, has various meanings, and may be applied to one of two, as well as any other number. We agree that Coates v. Huylies rules this case, as to the power to sell. Mr. Hubbell, in reply. The general rule is, that the word liv- ing applies to infants in ventre tsa mere ; but if they are exposed to a penalty thereby, it will not be so construed. Every devise is supposed to be beneficial for the devisee. The legislature meant no more than that the posthumous child should receive a child's share, such as the testator allotted to his children ; not that he should receive what the testator intended for collaterals. If the will was revoked, as to all the children, by the birth of a child, then, if a father should give a shilling to a disobedient child, and after that should have another child, and die, the diso- bedient child would get a full share. There is no reason for doubting the intention of the testator to provide liberally for these collateral relations. One was his mother, another his widowed sister. * The opinion of the court was delivered by ROGERS, J. The principal question raised by the case stated is, whether Alexander, who is the posthumous child of James Gray, is embraced in that clause of the will, in which the testator devises "the one, full, equal, undivided third part of his estate, real and personal to his beloved children, who may be liv- ing at the time of his death."' It seems to be a settled rule of the English law, that there must be a concurrence of a subsequent marriage, and a subsequent child, to make a revocation of a will ; and that the mere subse- quent birth of children, unaccompanied by other circumstances, would not amount to a presumed revocation. This being a fixed rule of construction ; or, at least, the better opinion being as VOL. i. 15 219 SUPREME COURT [Dec. Term, (M'Kpighte. Read.) above stated, the legislature of Pennsylvania, as early as the 4th of February, 1748, enacted, "that when any person shall, at any time hereafter, make his last will and testament, and afterwards marry, or have a child, or children, not named in any such will, and die, although such child, or children be born after the death of their father, every such person so far as shall regard the wife after married, or the child or children after born, shall be deemed and considered to be intestate ; and such wife, child, or children, shall be entitled to like purparts, shares and dividends, of the estate, real and personal, of the deceased, as if he had actually died without will." This act has been altered and supplied by the act of the 19th of April, 1794. It is there enacted, "that when any person, from and after the passage of the act, shall make his last will and testament, and afterwards marry and have a child, or children, not provided for in any such will, and die, leaving a widow and child, or either a widow or child, although such child or children be born after the death of their father, every such person, so far as s'hall regard the widoiv, or child, or children, shall be entitled to such purparts, shares, and dividends, of the estate, real and personal, of the deceased, as if he or she had actually died without any will." I have recited the two acts, in some measure with a view to a variance, which appears between them, which, whether essential or otherwise, may be, as may be hereafter determined. The acts vary in two particulars. The act of 1748, speaks of children not named in the will ; the act of 1794, of children not provided for in the will ; the act of 1794, says, if he shall die, "leaving a widow, or child, or either widow or child," a clause riot contained in the act of 1748. But whether these acts essentially differ from each other or not, yet it is certain they make a material alteration in the common law, which requires both marriage and the birth of a child, or children, to effect an implied revocation of a will. This, then, being the rule of the English law, which in many cases operated hardly on after born children, the court naturally r*9901 * s *- rame d the construction of phrases in a will, so as to J include children in venire sa mere ; and here, it has been repeatedly held, that the words, " living at the. death of the tes- tator," although not the natural import of the term, will, without more, embrace the case of a posthumous child. The rule results from a principle, deduced from the equitable rule of the civil law, which declares, that infants, who are, as yet, in their mother's womb, are considered as already brought into*the world, whenever the question relates to any thing which may turn to their advantage. The rule is intended entirely for the benefit of the infant, and is clearly stated by Swinburne, 562, pt. 4, s. 14. 1835.] OF PENNSYLVANIA. 220 (M 'Knight c.Jlead.) "When the child," (as is here said,) " is in the mother's womb, at such time as the testator dieth, if he would in this case know, whether that man is to be judged to have died without issue, we must consider whether it be for the benefit of the child, that the father should be accounted to have died without issue or not ; for, howsoever the rule be, that he is not said to die without issue, whose wife is with child at his death ; yet that rule ought to take place when it tendeth to the benefit of the child, not when it tendeth to the prejudice of the child, or any benefit of another. Wherefore," (says the writer,) " if the testator make thee his executor, or give thee one hundred pounds if he die without issue, after which will was made, he dieth, leaving his wife with child ; in this case he is reported to die without issue ; and so thou art admitted to the executorship, and mayest receive thy legacy ; unless it be more beneficial to the child that his father should have been reputed to have died without issue ; for then thou art excluded." The principle as above stated, although not engrafted into the Common Law without jealousy, may now be taken as firmly es- tablished. The rule unquestionably is, that an infant in venire #a mere, shall be considered, generally speaking, as born for all purposes, for his own benefit. Watk. Law of Descents, 142; Doe v. Clark, 2 H. Bl. 401 ; 1 Ves. 85 ; Miller v. Turner, 3 Br. C. Rep. 391; Hall v. Chapman; Smith v. Duffield, 5 Serg. & Rawle, 40, and a variety of other cases, which I am not permitted to cite. The inquiry will then be, is it in the interest of Alexander to take under the will ? and it is clear that it is not. By the act of 1794, before referred to, if the father be deemed and construed, to have died intestate so far as regards him, he will be entitled to one-third of two-thirds of the estate. Now the case stated, sup- poses the testator to have died worth about 36,000 dollars, we will say personal estate, for even if part were real, it will make no material diiference on the result. Of this sum, Alexander's share will be $8,000, if divided on the principles of the intestate laws : whereas, if he be construed to be a devisee under the will, he will be entitled to 4,000 dollars, merely. And, besides, this construc- tion would not only be to his prejudice, but it would injure his brother and sister, who, in *the view we have taken of r* 901-1 the case, will be entitled to $4,666, instead of $4,000. A reason given in some of the cases, for including children, in ventre sa mere, in the words " living at the death," is from the presumed intention of the testator, arising from the moral obli- gation of a parent to provide for his offspring, a reason hardly applicable to a case like the present, where the law has made so ample a provision, in favor of the posthumous child. It would 221 SUPREME COURT [Dec. Term, (M 'Knight v. Read.) seem, therefore, that the rule ought to be in this state, and that an infant in ventre sa mere, shall not be taken to be embraced, prima facie, within these words ; and particularly when it works an injury to the other children, unless it can be affirmatively shown, that it is for his benefit, or there may be other circum- stances in the will, which clearly indicate such to be the intention of the testator. But be this as it may, yet the rule being adopted on a presumed intention of the testator, the presumption, like every other presumption, may be rebutted by other parts of the will, aided, as it may be, the state of the property, and the situa- tion of the family. 5 Serg. & Rawle, 39. Swift v. Duffield. It has been conjectured, and not without a show of reason, that the testator thought himself richer than he really was. From the devise to his collateral relatives, it would seem that he sup- posed himself worth about 60,000 dollars. This estimate of the value of his property, w r ould leave each of his children born, 10,000 dollars, a sum, it may be, in his apprehension, amply suf- ficient for their education and commencement in life ; but if he had had an idea that his wife was then pregnant, it is thought he would not have made a will by which the provision for his chil- dren born, would be materially reduced. But there are other parts of the will which are entitled to weight in arriving at the intention of the testator ; which, after all, is the governing rule. Several circumstances have been relied on at the bar, which would seem to indicate that an after born child was not in the contem- plation of the testator, at the time he made his will. 1 shall advert to but one, although the others seem to throw some light on the transaction. After the devise to his children, the testator proceeds : " And it is my desire and will, that the share or part of my personal estate, herein devised to my children, shall be put out at interest, and managed by my executors hereinafter named, to the best advantage, until my said children shall attain to full age, or be married ; the income and interest to be paid over to their guardians hereinafter named ; and as to the real estate hereby devised, the same is to be subject to the power of sale hereinafter directed ; and the said income of the real estate herein devised to my children, so long as it shall remain unsold, shall be received by my executors, and paid over to the guardians, re- spectively, of my children, until they severally attain full age, or marriage." In a subsequent part of the will, the testator f*<>221 sa y s " Item,- I constitute and appoint * my brother-in- J law, Joseph Mosher, Esq., of Lancaster county, to be guardian of the person and estate of my daughter Isabella ; and my friend Frederick V. Krug, of this city, guardian of the per- son and estate, of my son, James." This clause, would seem to be somewhat irreconcilable with the idea, that the testator was 1835.] OF PENNSYLVANIA. 222 / (M 'Knight v. Read.) aware of the pregnancy of his wife, and intended, by the words "living at his death," to include the child in venire sa mere; for if that had been so, it is probable he would have made a similar provision in reference to such an event. The conclusion would then be, that James and Isabella, for whom guardians are ap- pointed, are children to whom the interest and income of the es- tate are to be paid. The words of the will are, "the income of the real estate, herein devised to my children, so long as it remains unsold, is to be paid to these guardians," that is, to the guardians of James and Isabella. Supposing, then, that Alexander does not take under the will, the next question is, whether this works a total revocation of the will, or is a revocation of the will pro tanto. The legislature ap- pears to have been very guarded, in the terms used in the acts of 1748 and 1794. The marriage or birth of a child revokes a will, only so far as regards the widow, or child or children after born. These acts, provide, that such child or children, shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if he or she had actually died without will. I cannot believe that if the legislature had intended the marriage or birth of a child should amount to a total revocation, they would have used this language. It was the persons only, who were not included in the will, that they intended to protect, leaving the will, in all other respects, as it had been made by the testator. It is not to be disguised, that this will sometimes lead to difficult and perplexing questions ; and whether a total revocation would not have been a better pro- vision may admit of doubt ; but the legislature not having thought proper to do so, it is not for us, on a presumed inconvenience, to dispense with words which so clearly indicate their intention. And this would appear to be the opinion of this court, in Coates v. Hughes, 3 Bin. 498. In that case, it was ruled, that a subsequent marriage and birth of a child, did not amount to a total revocation of a will. The appointment of an executor, with power to sell, was held good, notwithstanding ; upon the principle that it amount to a revoca- tion, pro tanto only. The next inquiry will be, in what manner is Alexander's share of the estate to be deducted. Alexander is entitled to one-half of two-thirds of the estate, as in case of intestacy, that is to say, taking the estate to be worth $36,000, the widow would be en- titled to one-third, viz: $12,000, and the remaining two-thirds, viz : $24,000, must be divided by three, the number of children, which would make the share of Alexander $8,000. This $8,000, we are of opinion, should in the first place, be deducted from the 223 SUPREME COURT [Dec. Term, (Heppard . Beylard.) r*O9Qi whole amount of the estate; *and the remainder, viz: $28,000, should be divided into three equal portions ; one-third to the widow, one-third to the two children, Isabella and James, and the remaining third to the collateral relativea named in the will. We conceive that the portion allotted by the act to Alexander, must like a debt, be first paid, and the residue only remains, to answer the exigencies of the will. We are sen- sible that this will sometimes interfere with the intention of the testator, but this is a consequence which cannot be avoided, without dispensing with what the legislature have thought of paramount importance ; to prevent the disinherison of after bom children. From the case stated, it will appear that there will be a defi- ciency of assets to pay the legacies contemplated in the third class. I see nothing in the will to prevent the operation of the rule, that the abatement must be in equal proportions. The gen- eral rule is, that among legatees, who are volunteers, in their nature general, there is no preference of payment; they shall all abate together, and proportionably, in case of a deficiency of assets, to pay them all. Since the argument of the cause, it has been stated to us by the counsel, that it has been ascertained that the testator was aware of the pregnancy of 'his wife. This circumstance makes no alteration in the opinion of the court. Judgment for the plaintinff. Cited by Counsel, 6 Casey, 174 ; 11 Wright, 147. Cited by the Court, 10 Casey, 487. Followed, 3 Wright, 119. [PHILADELPHIA, FEBIHJAKY 1, 1836. ] HEPPARD against BEYLARD. IN ERROR. A. the holder of a promissory note, a short time before the failure of the drawer, and in anticipation of that event, sold it to B. who was indebted to the drawer. On the failure of the drawer, his assignees brought an action against B., who set off the promissory note and obtained a verdict and judgment. Held, that A. had a right to dispose of the note to B., and that the assignees had no cause of action against him. WRIT of Error to the District Court for the City and County of Philadelphia, to remove the record of an action brought in 1835.] OF PENNSYLVANIA. 223 (Heppard v. Beylard.) that court by Hezekiah Heppard, assignee of Joseph M. Heppard, and William B. Heppard, against John Beylard. The circumstances under which the suit was brought, were these : Joseph M. Heppard, and William B. Heppard, were indebted to the * defendant on a promissory note, dated April 15, r* 994-1 1823, at six months, in the sum of $357 82 ; which L ^ note fell due on the 18th day of October, 1823. Nathaniel Richardson, of Pittsburg, was indebted to the said Joseph M. and William B. Heppard, in the sum of $295 92, on a book account ; with which fact defendant was acquainted before the transfer of the note by him, as hereinafter stated. The said J. M. and W. B. Heppard, on the 23d day of August, 1823, became insolvent; and on the same day made an assign- ment of their estate to the plaintiff, in trust, for the benefit of their creditors. Notice of the assignment was given by publi- cation in the Philadelphia Gazette, on the 25th day of August, 1823. The defendant had, previously to the 20th of August, 1823, obtained a discount of the note of the 15th April, at the banking- house of Stephen Girard, and received the money therefor. On the 20th of August, 1823, the defendant in Philadelphia, wrote to his agent, Mr. Dubarry, in Prttsburg, informing him that he held the note of the 15th April, and other notes of the Hep- pards, and expressing his fear lest they should become bankrupt, and instructing him to barter said note for goods. This letter Dubarry received on the 25th of August. On the 26th of August, 1823, Dubarry, in Pittsburg, bartered the note to Richardson for goods, (bees-wax, &c.) to the amount of $295 92, (the amount of Richardson's debt to the Heppards,) and by letter dated at Pittsburg, on the 27th day of August, 1823, informed the defendant of the transaction. The defendant on the 2d of September, 1823, took up the note from Girard's Bank, and transmitted it on the same day to Du- barry, who, after its receipt, delivered it to Richardson. Rich- ardson had, previously, by letter dated at Pittsburg, about the 27th of August, informed the Heppards of the transfer of the note to him ; and he received no notice from any source, of the assignment made by them, until some weeks after the barter with Dubarry, and the receipt of the note from him. On the 8th of April, 1824, the plaintiff, as assignee of the Heppards, commenced a suit in the court of Common Pleas of Alleghany county, against Richardson, to recover the amount of the said book account. Richardson pleaded in that suit, among other things, a set-off; and on the trial, gave in evidence Hep- pard's note of the 15th of April, 1823, transferred to him ; the 224 SUPREME COURT [Dec. Term, (Heppard t>. Beylard.) transfer of which was antedated by Dubarry to correspond with the date of the letter, in which defendant had authorized him to barter it, viz.: August 20th, 1823. A verdict was rendered in the said suit, in favor of Richard- son, for the sum of $71 13 ; the set-off of the said note being allowed by the court and jury. Judgment was rendered on that verdict, and no proceedings to reverse it were taken by the plaintiff. r*22*Vl * ^ e pl a * n tiff ^en brought this action against Bey- lard, to recover the sum of money, (viz. the amount of the said note, $327 82 and interest,) lost to them by the judg- ment in Pittsburg, through the proceedings of Beylard, which the plaintiff alleged to be fraudulent in law ; and he claimed to re- cover either the whole amount, or at least the amount of Richard- son's debt to the Heppards. The judge below, charged upon the above facts, that the plain- tiff could not recover ; that the conduct of the defendant was per- fectly fair and legal ; that he had the right to do what he did ; that there was no principle of law to support the plaintiff's action ; and that these matters should have been relied upon in the suit between the plaintiff and Richardson. A verdict and judgment were rendered for the defendant. The plaintiff took a bill of exceptions to the charge of the judge, and a writ of error, and assigned the following errors. "1. The court below erred, in charging the jury that there was no principle in law, upon which the action of the plaintiff could be supported. 2. The court erred, in saying that the defendant had a right to offer in the market the note of the '15th of April, 1823, before he took it up from Girard's Bank, and to sell it on the 20th or 26th of August, and that in so doing, he, the defendant, had nothing to do with Heppard, or with transactions between Richardson and the Heppards, and was not to be affected by them. 3. The court erred in saying, that there was nothing in the defendant's conduct, from beginning to end, which the law pro- hibited. 4. The court erred, also, in saying, that all in this cause had been previously heard and tried at Pittsburg." Mr. G. M. Wliarton, and D. P. Brown, for the plaintiff in error, cited Itiehter v. Selin, (8 Serg. & R. 425.) Mr. M'Call (with whom was Mr. Brashears^ referred to Stouffer v. Latxhaw, (2 Watts, 165.) The opinion of the court was delivered by 1835.] OF PENNSYLVANIA. 225 (Heppardfl. Beylard.) GIBSOX, C. J. The argument for the plaintiff, is founded on the fallacious assumption, that in gaining a legal advantage over the other creditors, the defendant was guilty of a fraud ; which, in turn, is founded on an obiter dictum of the judge who deliv- ered the opinion of the court in Richter v. Selin. I am unable to perceive how a measure to obtain such an advantage, when un- attended with misrepresentation or an abuse of confidence, can be inconsistent Avith the strictest honor. The creditor may know, that the debtor intends to give a preference to others; and what can be the harm *of an attempt to prefer him- r* 99(3-1 self ? It is to be remembered, that the parties are deal- L ing with legal rights, and not principles of generosity in sharing a loss. Placed in a condition of common peril, which imposes on each the necessity of struggling for his own preservation, good faith requires no more of them that that each should not deceive the other to his prejudice. Whom did the defendant deceive ? Not the endorsee of the note ; for he recovered it, or, what is the same thing, obtained a credit for the amount by defal- cation. Not the assignees or any of the creditors ; for he had no transaction with them. By obtaining on the contract of en- dorsement, more for his note than he could have made of it in his own hands, he deceived no one who placed confidence in him, or had a right to prescribe to him any particular course of con- duct; and I am unable to understand how a creditor who has thus obtained more than his proportion from an insolvent fund, may be compelled to restore it. In all cases of the stamp, a legal advantage is a conscionable advantage. Thus it was held by this court, in Carson v. M'Farland, 2 Rawle, 118, that a creditor who has been paid more than his proportion, by mistake of the executor, can not be compelled to refund it. Money can be fol- lowed only when it has been received mala fide; whence results a clear and indisputable rule of law, that when paid by mistake in discharge of a just debt, it may not be recovered back. Now, to be successful, what would be the gist of an action here? Not deceit; for the defendant deceived no one. Not the gain of a legal advantage ; which, as the law allows it, surely cannot be unlawful. It must necessarily be the receipt of money to the plaintiff's use, for the excess beyond what would have been the defendant's dividend. But the money had of the endorsee was not that which was coming to the estate of the insolvent ; it was the price of a chose in action, parted with on terms which the law did not prohibit between the parties ; and which did not create a trust for the plaintiff: and be the fancied equity of the case what it may, there is not such privity between the parties as will sup- port an action. Judgment affirmed. Cited by Counsel, 6 Watts, 433. 227 SUPREME COURT [Dec. Term, [*227] [*PHILADKLPHIA, FEBUARY 1, 1836.] GASPER and Others against DONALDSON and Another. IN ERROR. In ejectment against one claiming under a conveyance made by the ances- tor of the plaintiffs, which they sought to set aside, on the ground of in- adequacy of consideration, and imbecility of the grantor ; the parties standing also in the relation of mortgagor and mortgagee ; it was held, that a will made by the grantor, three years before the date of the deed, when the parties stood in the same relation ; in which he devised the same property to the grantee in the deed, was admissible in evidence, to show the intentions and disposition of the grantor towards the grantee. WRIT of Error to the District Court for the City and County of Philadelphia. An action of ejectment was brought in that court by Lewis Gasper, and Mary his wife, in right of the said Mary, Sarah Porter, Ann Porter, Rosina Porter, Elizabeth Porter, \Iary Ann Porter, Hannah Porter, Joanna Porter, and Emma Porter, against John Donaldson and William Baker, to recover a house and lot of ground situate on the east side of Delaware Sixth street, in the City of Philadelphia. The plaintiffs claimed, as heirs at law of one Robert Venable, who was born on the 22d of April, 1730, and died, seized of the premises, on the 19th of Decmber, 1831. The defendants claimed, under a conveyance of the premises from Robert Venable to John Donaldson, in fee, dated December 1st, 1829, acknowledged the next day, and recorded on the 8th of the same month. John Donaldson, on the 27th of March, 1832, conveyed the lot in question to William G. Baker, in fee, reserving an annual ground rent. It appeared in evidence on the trial, that Venable had been a slave in the family of the grandfather of the defendant, Donald- son, by whom he was manumitted. He purchased the lot in question, and borrowed $200 on mortgage from John Donaldson, the father of the defendant. The consideration mentioned in the deed was $500. The allegation on the part of the plaintiffs was, that the consideration was inadequate, and that the grantor was incapable at the time. The defendants, having given their title in evidence, offered a paper purporting to be the will of the said Robert Venable, dated the 13th of September, 1826, containing a devise of the lot in question to John Donaldson, the father of the defendant ; having proved by the person who drew the will, that Venable declared that he was considerably indebted to Mr. Donaldson, and that he wished to show his gratitude to him. 1835.] OF PENNSYLVANIA. 228 (Gasper -D. Donaldson.) * The plaintiff's counsel objected to the admission of this paper in evidence ; but the court admitted it, and a bill of exceptions was taken to their opinion, and the record re- moved to this court. The only error assigned, was the admission of the paper writ- ing, purporting to be the will of Robert Venable. Mr. G. M. Whatton and Mr. F. W. Hubbell, for the plain- tiffs in error. 1. The will of Robert Venable ought not to have been ad- mitted in evidence. The defendant relied upon a deed expressed to be for a valuable consideration ; Avhich, however, was clearly shown to be inadequate. The issue was upon the consideration, and the question of the motives or intentions of the grantor was irrelevant. The will was never proved ; but, if proved, it would have been inoperative, since it was revoked by the deed set up on the other side. It was at best, only a delaration of the grantor, which was not admissible. In support of these positions, they cited Rife v. G-albreath (1 Penn. Rep. 204;) Innes v. Campbell, (1 Rawle, 374 ;) Brown v. Downing, (4 Serg. & R. 498 ;) Wolverton v. Hart, (7 Serg. & R. 273 ;) Edgar v. Boies, (11 Serg. & R. 445;) Kendall v. Lee, (2 Penn. Rep. 488;) Mildmay's case, (10 Rep. 176, a.;) Peacock v. Mort, (1 Ves. 128 ;) Wilt v. Franklin, (1 Binn. 518 ;) Hayden v. Mentzer, (10 Serg. & R. 329;) 1 Roberts on Wills, 2l9, 226; Lawson v. Morrison, (2 Dall. 289 ;) Sparrow v. Hardcastle, (3 Atk. 803 ;) Ambler, 215; 7 Vesey, 393; 8 Ves. 233 ; 6 Ves. 205; Hawes v. Wiatt, (2 Cox's 0. C. 263 ;) Attorney General v. Vigor, (8 Ves. 283 ;) House v. Hull, 2 Binn. 511. 2. At the date of the will, and at the date of the deed, the parties stood in the relation of mortgagor and mortgagee ; and it is said in the cases, that conveyances shall not be admitted be- tween such parties. Webb v. Rourke, (2 Sch. & Lefroy, 661 ;) Davoue v. Fanning, (2 Johns. Ch. Rep. 252 ;) Seagrove v. Qur- wen, (1 Beatty, 157, cited in Shelford on Lunatics, 318.) Mr. Kittera, contra, was stopped by the court. PER CURIAM. The imputation of fraud rested mainly -on the ground of inadequacy of consideration. Was not the will, not only competent, but powerful evidence to repel it, by showing that the grantor meant to stipulate, not for an outside price, but a living ; and that, at a preceding period, when there was no im- putation of imbecility on the one side, or artifice on the other, he avowed an intention to give the estate at his death to the de- tendant, as a gratuity ? In this aspect, the competency of the 228 SUPREME COURT [Dec. Term, (St. Mary's Church c. Miles.) will, whether revoked or not, or otherwise avoided, as a convey- ance, was unquestionable. See 11 Harris, 119. Judgment affirmed. [*229] [*PHII,ADELPHIA, FEBKUAKY 3, 1836.] THE TRUSTEES OF ST. MARY'S CHURCH against MILES. IN ERROR. 1. Mere lapse of time, without demand of payment, is not sufficient to raise a presumption that a gr&und rent created by a valid deed, has been released, or otherwise extinguished. 2. The lapse of twenty years without demand of payment, is evidence from which a jury may presume payment of the arrears of the ground rent ; but such presumption may be repelled by circumstances. 3. A testator devised a small annual ground rent to a servant for life ; his executors not being aware of the testator owning such a ground rent, or not finding the person by whom it was payable, paid the amount to the devisee from time to time, as an annuity ; Held, that these payments were not to be considered as a satisfaction of the ground rent pro tanto ; but that the devisee was entitled to recover the arrears. WRIT of Error to the District Court for the City and County of Philadelphia. Robert Miles brought an action of covenant in that court to De- cember Term, 1829, against the trustees of St. Mary's church, to recover the arrears of a ground rent of three pounds per aunum, issuing out of and charged upon a lot of ground situate on the south side of Plumb street, in the district of Southwark, and county of Philadelphia. On the trial in the court below, the jury found a special ver- dict, setting forth the following facts, viz. : That John Palmer and wife, by indenture dated the 23d day of July, 1761, granted a lot of ground upon which the said rent is charged to Joseph Wright, in fee, reserving the said ground rent, payable on the 23d day of July, yearly. That the said John Palmer and wife, by indenture dated the 1st day of March, 1790, granted and assigned the said rent charge to Thomas Shoemaker. That the said Thomas Shoemaker, by his last will and testa- ment, dated the 5th day of March, 1795, and proved on the 10th day of December, 1799, devised the said rent charge to the plaintiff above named, during the term of his natural life, pro- 1835.] OF PENNSYLVANIA. 229 (St. Mary's Church v. Miles.) vided he continued in his, the said Thomas Shoemaker's service, until the decease of the said Thomas Shoemaker:, and that the said plaintiff did so continue in the service of the said Thomas Shoemaker, until his decease. That William Dewees, Esq., sheriff of the city and county of Philadelphia, by indenture dated the 6th day of July, 1775, con- veyed the premises to Peter Gill, in fee, subject to the payment of said rent charge. * That the said Peter Gill, by his last will and testa- ment dated the 23d day of December, 1797, devised the premises to the above named defendants, and the said defend- ants have been in possession of the same, until the commencement of this suit. And the jury further found, that Jacob Shoemaker and Thomas Shoemaker were appointed the executors of the last will and testament of Thomas Shoemaker, deceased, before referred to, and that Jacob Shoemaker took upon himself the exclusive management of the estate, until the year 1822, when he died. That the said Jacob Shoemaker paid the said plaintiff several sums of money at sundry times as appears from receipts, of which the following are copies: "Received Dec. 9, 1801, of Jacob Shoemaker, executor of the estate of Thomas Shoemaker, deceased, eight dollars in full for one year's annuity by virtue of the last will of Thomas Shoe- maker, deceased." " Received 1st mo. 10, 1803, of Jacob Shoemaker, eight dol- lars in full, for my yearly annuity from Thomas Shoemaker." "Received 3d mo. 31, 1803, of Jacob Shoemaker, one dollar, on account of my yearly annuity, from the estate of Thomas Shoemaker, deceased." "Received March 12, 1812, of Jacob Shoemaker, ten dollars for the annuity left me by Thomas Shoemaker, deceased." "Received Feb. 3, 1813, of Jacob Shoemaker, ten dollars on account of my annuity." And the jury further found that after the death of the said Jacob Shoemaker, Thomas Shoemaker, as surviving executor, took upon himself the management of the estate, and paid to the plain- tiff three pounds per annum, until the present suit was brought, as will more fully appear from the following receipts : "Received, December 7, 1822, of Thomas Shoemaker, ten dol- lars, on account of my annuity left by his uncle, Thomas Shoe- maker, deceased." "Received October 2, 1823, of Thomas Shoemaker, executor of the estate of Thomas Shoemaker, deceased, eight dollars, being the amount of my annuity left by deceased." 230 SUPREME COURT [Dec. Term,, (St. Mary's Church t>. Miles.) " Received September 23, 1824, of Thomas Shoemaker, eight dollars, for one year's legacy, left me by Thomas Shoemaker, deceased, due 1st of October next." "Received January 17, 1826, of Thomas Shoemaker, ten dol- lars, on account of my legacy, left by his uncle, Thomas Shoe- maker, deceased, due October next, including two dollars in ad- vance of the next payment." "Received llth October, 1826, of Thomas Shoemaker, ten dollars, which is for one year's annuity, left me by his uncle, Thomas Shoemaker, deceased, and in advance, not being due un til October * next, he having paid me two dollars in last year as per receipt January, 1826." "Received October 15th, 1826, of Thomas Shoemaker, eight dollars for amount of one year's annuity left John Miles, by his uncle Thomas Shoemaker, deceased, which will be due in October, 1828; this being in advance." " Received September 25, 1828, of Thomas Shoemaker, eight dollars for account of one year's annuity left me by his uncle, Thomas Shoemaker, deceased, which will be due in October, 1829, this being made in advance." And the jury further found, that the said Thomas Shoemaker, executor as aforesaid, charged the said sums so paid to the plain- tiff, to the estate of Thomas Shoemaker, deceased ; that the said Thomas has misconceived the will, and that said payments were made by him, under the impression that the plaintiff was entitled to an annuity of three pounds per annum, under the will of Thomas Shoemaker, deceased, and that Thomas Shoemaker, ex- ecutor as aforesaid, has never settled his administration accounts ; that the executors of Thomas Shoemaker, deceased, did not find the deed for the said ground rent among the deeds of the testator, and that all the other title papers for his property were found by his executors ; that the executors did not know where the prop- erty was situate on which the rent was charged, though efforts were made by them to ascertain where the same was situate ; nor did the surviving executor know where the same was situate, until informed by the counsel of the defendants, a short time be- fore this suit was brought, and that no demand was made by the executors of Thomas Shoemaker on Peter Gill, or upon the de- fendants in this suit, for the payment of the said ground rent, until about the time this suit was instituted. Upon this special verdict the District Court rendered judgment for th eplaintitf; whereupon, the defendants sued out this writ of error; and, upon the removal of the record, assigned the follow- ing errors, viz : "1. That judgment ought to have been given for the defend- ants, by the court below ; 1835.] OF PENNSYLVANIA. 231 (St. Mary's Church . Miles.) 1. Because the rent charge was by presumption of law extin- guished or relinquished. 2. Because there was enough to authorize a presumption in fact of the extinguishment of the rent charge. 2. That it was a har to the plaintiff's- recovery that payment had been made to him of all that he was entitled to receive under the will of Thomas Shoemaker." Mr. C. Ingersoll, for the plaintiffs in error. The plaintiff be- low claimed the arrears of ground rent for about thirty years. The* special verdict does not state the fact distinctly, r*oqo-i but it is agreed that the ground rent has not been paid L since the death of Thomas Shoemaker, in 1799, and that no de- mand was made for it until the commencement of the suit in the court below. 1. The lapse of time raises a presumption that the rent has been extinguished. Matthews on Presumptive Evidence, p. 6 ; Hillary v. Waller, (12 Ves. 251 ;) Prevost v. Grratz, (6 Wheaton, 481 ;) 1 Powell on Mortgages, 396, 399 ; Cope v. Humphreys, (14 Serg. & Rawle, 19 ;) Eldredge v. Natt, (Cowper, 215 ;) Arden v. Arden, (1 Johns. Ch. R. 313 ;) Henderson v. Lewis, (9 Serg. & Rawle, 379 ;)3f Clean v. Findley, (2 Penn. Rep. 97 ;) Deman v. Leckart, (1 Penn. Rep. 419 ;) Blanchard on Limitations, 56 ; Livingston v. Livingston, (4 Johns. Ch. Rep. 294 ;) Tenbroeck v. Livingston, (1 Johns. Ch. Rep. 357 ;) 1 Chitty's Gen. Practice, 756. [ROGERS, J. How can you con- tend that the rent was extinguished, when there is nothing on the record to support it ? The jury have not found so.] The jury have found facts from which the presumption arises. In Ten- broeck v. Livingston, Chancellor Kent speaks of a presumption arising from the want of evidence of the rent having been de- manded or paid. In Palmer v. Whittenhall, (1 Cases in Chan- cery, 184 ;) the defendant demurred to a bill claiming rent, that he and those under whom he claimed, had enjoyed the land for thirty years without any demand of rent, and that being so long unpaid, it was presumed to be extinguished ; and the demurrer was allowed by the Lord Keeper. This case was cited and ap- proved of by Chancellor Kent, in Livingston v. Livingston; Som- ervill v. Holliday, (1 Watts, 507.) 2. It appears by the special verdict, that the plaintiff was paid in full. It is no matter by whom. The fact of payment is enough to prevent his recovering from the defendants^ Mr. Perkins, and Mr. Chester, for the defendant in error. 1. The case of a bond payment of which will be presumed after twenty years without demand, &c. is not like that of a 232 SUPREME COURT [Dec. Term, (St. Mary's Church v. Miles.) ground rent, or other accruing payment, the principal of which is not required to be paid. The recording acts also place the case of rents on a different footing. If there had been a release, it was incumbent upon the grantor to place it on record. In 1790, Shoemaker became the purchaser for a valuable consider- ation. The present plaintiff, Miles, is also to be considered a pur- chaser in 1799. In Jackson v. Davis, (5 Cowen, 123 ;) the court say that the presumption alleged is in the nature of evi- dence ; and mere length of time will never raise such presumption. It must arise from some facts or circumstances which took place within that time. Here, it appears that Miles was an old man, ignorant, and had been a servant of Shoemaker. Brydges v. The Duke of Chandos, (2 Burr., 1065 ;) Runnington, 276 ; 3d Starkie, 1250 ; 6 Rep. 38 ; 2 Bac. Abr. 639 ; Standish v. Brad- r*noo-i ley, (2 Atk. 177.) It is settled that the Statute of ^Limitations does not bar a rent charge, Cupit v. Jack- son, (13 Price, 495 ;) 2 Saunders' Rep. 66, note (a) ; Hall v. Doe dem. Surtees, (5 B. & A. 687, 7 Eng. Com. Law Rep. 232;) Angel on Lira. 99, 105, &c. ; Den McAllister, (2 Halsted, 46 ;) Ord v. Hemming, (2 Bos. & Pul. 542 ;) Davis v. Shoemaker, (1 Rawle, 135.) This is the case of a small ground rent, of which there are many in the City of Philadelphia. It is common to suffer them to remain in arrear many years. Instances have occurred of the recovery of arrears for fifty years. The Stat. 32 Henry 8, c. 2, s. 3, provides, that no avowry shall be made for rent due above fifty years next before making the avowry. That statute is not in force in this state ; but even in England, it is said not to extend to the case of a reservation or grant of a rent, when the title is founded on a deed. Foster's case, (8 Rep. 128 ;) Cruise Dig. tit. 31, c. 2, s. 4. The argument on the other side would make the remainder men suffer for the supposed default of the tenant for life. 2. The payments to the plaintiff, by the executors of Shoe- maker, arose from a mistake in respect to the terms of the will, which they are entitled to rectify. The plaintiff alleges that he has not received the full amount due to him ; and as to the sums which shall appear to have been actually paid to him, the suit is conducted for the benefit of the estate of Shoemaker. Reply. It is not contended that the non-payment of rent to the tenant for life, creates a presumption of a release by the par- ties in remainder. The presumption contended for here is, that the interest of the tenant for life was released. The current of decisions is against stale demands, whether arising from bonds, judgments, or ground rent deeds. In Livinyston v. Livingston, Chancellor Kent went the whole length of deciding on the 1835.] OF PENNSYLVANIA. 233 (St. Mary's Church v. Miles.) conclusiveness of a presumption, without referring the question to a jury. The opinion of the court was delivered by KENNEDY, J. The counsel of the defendants has made three objections to the recovery of the plaintiff; two of which go to the whole of his claim, and the third only to a part. The first is, that upwards of thirty years having elapsed, without any demand having been made of the rent, or payment thereof received, a release of the right to demand it ought to be pre- sumed. The second is, that the payment of the annuity by the executors of Thomas Shoemaker was a satisfaction and discharge of the ground rent, as it became payable, on the lot in the tenure of the defendants ; and, therefore, the plaintiff ought not to recover. The third is, that if neither the first nor the second should be considered available, still the plaintiff is not entitled to recover that portion of the rent claimed by him, which fell due twenty years before the commencement of his suit ; *be- cause, from the lapse of that period alone, it must be presumed to have been paid. In regard to the first objection ; although it may be that the law will, in some cases, presume a grant in support of a right which has been exercised and enjoyed by a person, without objec- tion or interruption, to the exclusion of all others, for a period of twenty years or more, yet it does not follow that it ought to make such a presumption, in order to defeat a person of a right created by deed and not controverted ; without any thing being shown to have taken place in the conduct of the parties intrusted or concerned in the right, that Avas inconsistent with the exist- ence and enjoyment of it. In this case, from 1798, the time when the defendants first became the owners of the lot, out of which the plaintiff claims the ground rent, it does not appear that any demand was made of the rent until 1829, shortly before the commencement of this action ; nor that there ever was any refu- sal on the part of the defendants, until then, to pay it; so that the plaintiff, had he claimed the rent by virtue of a bare previous seizin thereof, could not before that be said to have been disseized of it. Until then, nothing that was obviously incompatible with his right seems to have taken place. After this, he delayed no time in asserting his right by instituting this action for the recov- ery of it. But the rent claimed by the plaintiff being founded up- on a reservation contained in a deed ; whether he was ever seized of it or not can in no wise affect his right to a recovery thereof. The evidence of his right to it does not depend upon his having been seized of it, but upon the deed, which is established beyond all question, and the tenor and effect whereof are too plain to be VOL. i. 16. 234 SUPREME COURT [Dec. Term, (St. Mary's Church . Miles.) mistaken. This doctrine is fully established in Sir William Foster's case, 8 Co. 129 ; where it was held that a want of seizin within forty years, in the party, or those under whom he claimed a rent, as in the present case, was no bar or objection under the provisions of 32 Hen. 8, C. 2, to his distraining for it: because the party's right to the rent was evidenced by the reservation in the deed ; and it was only where he was compelled, for want of such deed, to resort to evidence show- ing a seizin of the rent, in order to establish his right to it, that this statute barred the claim, unless a seizin were proved to have existed within forty years. We have no statute bar- ring the right of an owner to an estate consisting of ground rent, through his neglect to assert it ; nor yet to preclude him from recovering the rent itself after any lapse of time. It is true that statutes of limitation, embracing legal estates or legal rights alone, have been extended and applied by courts of equity to estates and rights of an equitable character, in order to guard against evils attending the latter descrip- tion of estates and rights similar to those provided for in respect to legal estates and legal rights by such statutes; but they have never been extended by either courts of law or equity, to estates or rights purely legal, not considered as coming within rsKoqr-i *either the letter, spirit, or meaning thereof. The ground -1 rent, then, in question, being an estate purely legal, and there being no act or statute of limitations in force here which comprehends it, it follows that the courts have no authority to in- terpose any limitation that would bar the plaintiff of his right to enjoy it. The exercise of such a power would not only seem to be intrenching upon the legislative province, but upon the con- stitutional right of the plaintiff, by depriving him of his estate, without having given him any previous warning of his danger, so as to enable him to guard against it. It is proper here to bear in mind that it is the title or right of the plaintiff to the rent, as his freehold estate, that we are considering, and not his right to receive and enforce the payment of the back rents ; which are the fruits of it, and which he alleges to be due and unpaid ; because the rent, after it has become payable, is a mere debt or chose in action, which, from lapse of time, a jury might presume had been paid, in the absence of everything tending to show the con- trary ; but still, the existence of the estate is not affected by such presumption, nor the right of the owner thereof to demand and recover the subsequent accruing rents. It is of the very essence of the estate here, that it should continue to exist according to its original limitation, contained in the reservation creating it ; and accordingly it must endure for ever, unless destroyed or put an end to by some positive act of the party having the power to 1835.] OF PENNSYLVANIA. 235 (St. Mary's Church v. Miles.) do so, or by act or op, ration of law. But why should the neglect of the owner of the rent to demand it, after it has become pay- able for any given length of time, produce the same effect? Such neglect cannot in the least interfere with the rights of the owner of the lot ; nor prejudice him in any way. He has a right to use, and to improve the lot if he pleases ; and this is all per- fectly consistent with the duty that he owes to the owner of the ground rent. Their respective estates are distinct, and suscep- tible of being fully enjoyed without conflict. Ground rents seenT to have been created in this state, with a view to promote the improvement of unimproved lands, by affording the grantees thereof the opportunity of employing their money in putting up dwelling and other houses thereon, instead of giving it to the grantors in payment of what would have been considered a fair price for the purchase of the fee simple in the land, without any reservation of rent. The rent reserved in such cases, forms the only and whole consideration that is to be paid for the land ; and the grantee is bound to pay it, only as long as the title which he receives from the grantor proves sufficient to protect and secure him in the enjoyment of the land granted. Hence, the right o the owner to the ground rent seems to be founded in great equity, as well as justice ; and ought not therefore, to be regarded with any disfavor. Such a thing as the extinguishment of a ground rent, by the owner thereof, has seldom, perhaps never, happened, without his executing a deed or instrument of * writing r*oofin to that effect : which may be placed on record, and the L owner of the ground be thus protected for ever after, against the payment of the rent. There would seem, therefore, to be little reason for presuming a release of the ground rent, merely from the delay of the owner in demanding it. Such presumption, if it were to be made, would doubtless be contrary to the truth of the fact, in every case ; and would certainly work injustice to the owner of the ground rent. As long, therefore, as the ground rent can be shown to have been created by a valid deed, and the title thereto clearly be established in the party claiming it, mere lapse of time ought not to be considered sufficient to raise the presump- tion that it has been released.* As to the second objection, it seems to be founded upon an entire misapprehension of the motives which induced the execu- tors of Thomas Shoemaker to pay the money annually to the plaintiff. The counsel of the defendants seems to regard it as if it had been paid by them in discharge of the ground rent, which became due annually from- the defendants, upon the lot. But it is plain that the executors, not being able to ascertain where the * Act of 27th of April, 1855, 7, P. L. 369, Pur. Dig. 517, 9. 236 SUPREME COURT [Dec. Term, (St. Mary's Church v. Miles.) ground rent was to come from, that was g*iven by the will to the plaintiff for life ; and conceiving that the testator intended he should have the sum of eight dollars paid to him annually out of his estate, with a view to carry the will of the testator, in this respect, into effect, paid to the plaintiff the annuity of that amount. But they certainly never even dreamed of paying it for the benefit of the owners of the lot, out of which the ground rent might be coming ; nor with an 'intention to discharge either the owners or the lot from the payment of it. The money, then, paid by the executors, not being paid for the defendants ; nor with a view to benefit or release them from their liability to pay the ground rent ; and it not appearing to have been received by the plaintiff with any such view, it is difficult to discover any solid ground upon which the defendants can claim to be dis- charged from their duty to pay it. It is not the case of a debt owing by the defendants, being paid by the executors, either with or without the knowledge of the former ; but the case of money advanced by the latter to the plaintiff, out of the estate of their testator, until it should be discovered where the lot of ground wlas situate, upon which the ground rent devised was reserved. In place, therefore, of considering the payment of the money by the executors, as a discharge of the rent as it fell due, it would certainly be much more rational to hold it to be an advancement by them to the plaiptiff, to be reimbursed by him as soon as he should discover the lot on which the rent was reserved, and be enabled to recover it from the owners thereof. The transaction is susceptible of this construction ; but whether it was paid with an understanding that it should be returned in any event or not, it is very manifest that it was neither paid nor received with a f*9371 design that the defendants, * or owners of the lot, should be released by it from their liability to pay the rent to the plaintiff : and it cannot be that the law will give such effect to it, contrary to the intention of both the payers and the re- ceiver. We are therefore clearly of opinion, that the money paid by the executors to the plaintiff, ought not to be held a satisfaction of the ground rent as it became due ; and that the defendants have no claim to an exoneration from the payment of it on that ground. The third objection is equally untenable with the two first. In short, it is irreconcilable with the first ; because a lapse of twenty years only raises a presumption of payment, when nothing appears to rebut it. But the proposition upon which the de- fendants rest their first objection is, that no ground rent was ever demanded of them, and that they never paid any, although they had held the lot upwards of thirty years ; and, that, after such a length of time, it ought to be presumed that the plaintiff had 1835.] OF PENNSYLVANIA. 237 (Loud 0. Bull.) released his right to receive the same ; so that their first objection contains in it a distinct admission, on their part, that they have never paid any portion of the rent claimed by the plaintiff. Be- sides, a lapse of twenty years, unconnected with repelling circum- stances, is, at most, only evidence, as it has been said, from which the jury, and not the court, are to draw the inference of payment; so that had the defendants intended to have made this any part of their defence, they ought to. have submitted it as a fact to the jury, to be decided by them, under the direction of the court. This, however, could not have availed, as long as they held to the first ground of their defence, which involved their admission that they had never paid any part of the rent claimed by the plaintiff. Judgment affirmed. Cited by Counsel, 2 Wharton, 129 ; 3 Watts & Sergeant, 12 ; 2 Barr, 169 ; 7 Id. 155, 162 ; 1 Jones, 181 ; 7 Harris, 68 ; 3 Wright, 40 ; IP. F. Smith, 277 ; 4 Id. 303. Cited by the Court, post, 351 ; 1 Miles, 293. Affirmed, 9 Casey, 439. [* PHILADELPHIA, FEBKUARY 6, 1836.] [*238] LOUD against BULL and Others. IN ERROR. A testator, by his will, proved in 1814, devised all his estate to his wife for life, and after her decease, to his five children. In 1825, his widow ob- tained letters of administration, cum testamento annexo, and, in her character, of administratrix, confessed a judgment to the commissioners of Spring Garden, for a certain sum, which, by the statement in the case, appeared to be for paving done, in 1820, in front of a certain lot, whicji had belonged to the testator. By virtue of an execution on this judg- ment, the lot was sold at sheriff's sale : Held, that the purchaser acquired no more than the life estate of the wjdow. ERROR to the District Court for the City and County of Phila- delphia, to remove the record of an action of ejectment, brought in that court to June term, 1829, by John Bull, William Bachelor, and Sarah his wife, Elizabeth Bull, Abigail Bull, and Rachel Bull, against John Loud, to recover possession of a house and lot of ground, situate in James street, Spring Garden, Philadelphia.. The plaintiffs claimed as devisees of John Bull, their father, who died seized of the premises. The defendant claimed, as a purchaser at a sheriff's sale, under 238 SUPREME COURT \_I>ec. Term, (Loudu. Bull.) a judgment obtained against the administratrix cum teatamento annexo of John Bull. On the trial in the district court, a special verdict was given by the jury, finding the following facts : "John Bull, on the 13th day of October, 1814, died, seized in fee of the premises in the declaration mentioned, having first made his last will and testament as follows : 'I, John Bull, in the presence of John Bennett and Philip S. Claridge, do make this my last will and testament, and by these presents do make over to my lawful wife, Catharine Bull, all my estate, real and personal, during her natural life ; and, after her decease, to be sold and equally divided between my five children, viz : Sarah, John, Elizabeth, Abigail and Rachel.' Which will was duly proved on the 14th of October, 1814, in the office for the probate of wills, &c., at Philadelphia ; and let- ters of administration, cum testamento annexo^ were granted to Catharine Bull, the widow, on the 14th day of July, A. D. 1825. John Bull, at the time of his death, left surviving him, a widow, Catharine, and five children, viz.: Sarah, John, Elizabeth, Abigail and Rachel, plaintiffs in this suit. The oldest of the said children, at the time of her father's death, was between eighteen and nine- teen years of age and the ages of the others were from nine to I~*93Q1 nineteen. The * widow died before the commencement J of this suit ; the children are all living. In the District Court for the City and County of Philadelphia, to June term, 1825, the following action was entered: " The Commissioners of Spring Garden, vs. Catharine Bull, administratrix, (fum testamento annexo of John Bull, deceased. It is hereby agreed to enter an amicable action, case, and judgment in favor of plaintiff, for the sum of two hundred and six dollars and forty-eight cents. 5th July, 1825. JAMES PAGE, for plaintiffs. her CATHARINE X BULL." mark. " Plaintiff's claim is for paving on James' Street, 118| feet 113 loads of dirt, and paving 50 yards on Charles street, in the District of Spring Garden, amounting together to the sum of $167 56 ; which, together with the interest thereon, is the judg- .ment confessed in the above case: the paving on James' street being done in 1820, and the paving on Charles street in 1823. JAMES PAGE." The agreement for the above action, though dated on the 5th 1835.] OF PENNSYLVANIA. 239 (Loud v. Bull.) of July, 1825, was not filed, nor the assent of the defendant made perfect to it until letters of administration were granted. To September term, 1825, a fieri facias issued in the above case, and the estate in question subject to a rent charge of 44 dollars was levied on and condemned. To December term, 1825, No. 56, a venditioni exponas issued; under which the premises in question (subject as aforesaid) were sold by the sheriff, as the lands and tenements of John Bull, deceased, in the hands and possession of Catharine Bull, his ad- ministratrix, to Thomas Matlock, for the price and sum of $700, subject to the said ground rent. And John Douglas, Esq., high sheriff of the county of Philadelphia, by Deed Poll duly acknowl- edged, and dated the 6th of December, 1825, granted and con- veyed the same to the said purchaser. By deed, dated the 7th of June, 1827, Thomas Williams and wife, to Thomas Matlock, for consideration of $733 33, the ground rent reserved out of the premises in question, was extin- guished. On the llth of February, 1828, by deed of that date, Thomas Matlock and wife, for the consideration of $2300, granted the same premises to John Loud, the defendant." *The District Court rendered judgment on this verdict r*o i AT for the plaintiffs ; whereupon the defendant removed the record to this court, and assigned the following errors : "1. The court below erred in deciding that the judgment ob- tained by the commissioners of the District of Spring Garden against Catharine Bull, administratrix cum testamento annexo of John Bull, under which the premises in question were sold, was void, and that the sheriff's sale possessed no title. 2. They erred in deciding that, upon the evidence, the title to the premises was with the defendant in error, and not with the plaintiffs." Mr. Kittera, for the plaintiff in error. The District Court gave judgment for the plaintiffs, on the ground that the debt for which judgment in the original suit was confessed by the admin- istratrix, arose six years after the death of the testator, and that the judgment was on that ground invalid against the heirs. Now, the act of the 3d of March, 1818, (7 Sm. L. 60,) gives a lien to the commissioners of Spring Garden, for the cost of paving in front of vacant lots. The commissioners had power to sell at public sale, and their authority being in rem, it is of no conse- quence that the form of action may have been misconceived. The plaintiff in error is a bona fide purchaser from one who bought at sheriff's sale, and would be entitled to the protection of the ninth section of the act of 1705, if the judgment were reversed. Here, 240 SUPREME COURT [Dec. Term, (Loud v. Bull.) however, the judgment is in full force. The inconveniences would be very great, if purchasers at sheriff's sale are to he affected with matters that do not appear on the record. Young v. Taylor, (2 Binn. 218 ;) Wright v. Deklyne, (1 Peters' C. C. Rep. 202 ;) Jfartshorne v. Johnson, (2 Halsted, 108.) The administratrix had a right to confess a judgment ; and to support it, the court will presume that the contract for this paving was made in the life time of the testator, or that he was living in 1820. The state- ment may he rejected as surplusage, since the judgment would have been good without it. The plaintiff in error, in the belief of his having a good title, paid off the ground rent. [In answer to an inquiry by the Ch. Justice, it was stated that the court below imposed a condition upon the plaintiffs, that they should refund the amount paid by the defendant to extinguish the ground rent, and that the plaintiffs had entered into a stipulation accordingly.] Mr. Hopkins, (with whom was Mr. Tilyhman,) was stopped by the court. PER CURIAM. As the judgment was confessed by the admin- istratrix, for a debt incurred after the death of the decedent, it r*241T was * su ff ere d by ner clearly in her own right; her be- J ing named as administratrix being but description or sur- plusage ; and a sale under it of the decedent's land, therefore, passed no title. But even if viewed as a judgment against her in auter droit, a sale under it would have no greater consequence, as the judgment, not being founded on a true demand against the decedent, would be collusive ; and the nature of the claim appear- ing on the face of the declaration, would affect the purchaser with notice. Still further, the lien of the decedent's creditors had ex- pired, and a judgment suffered by his personal representative could not affect his land. On all these grounds judgment was properly given for the plaintiffs. Judgment affirmed. 1835.] OF PENNSYLVANIA. 241 [PHILADELPHIA, FEBRUARY 6, 1836.] SOLOMON against WILSON. APPEAL. A. the holder of a mortgage for $450, by an instrument under seal, assigned the mortgage to B. with condition that if the receipts of a certain theatre should on a certain night amount to $300, B. should re-assign the mort- gage to him and pay him whatever the said receipts should amount to beyond the said sum of 300 ; and if the receipts should be less than $300, B. was to hold the mortgage as security for the deficiency ; and if the same should not be paid by a certain time, (one week thereafter,) the mortgage was to be considered as absolutely assigned to B., his exec- utors, administrators, &c. B. assigned the mortgage to C., who brought suit upon it and sold the mortgaged premises at sheriffs sale, the pro- ceeds of which were brought into Court for distribution. Upon an issue directed by the Court, it was ascertained that the receipts of the theatre on the night mentioned in the assignment were $155. Held, that the clause respecting the absolute assignment of the mortgage was to be considered in the nature of a penalty, against which equity would relieve after the appointed day ; and that B. was entitled to receive, out of the money in Court, only the difference between the actual receipts of the theatre and the sum of THIS was an appeal from a decree of the District Court for the city and county of Philadelphia, in the distribution of the proceeds of certain real estate, ^sold by virtue of a writ of levari facias in a suit, wherein Samuel M. Solomon was plaintiff, and William Wilson was defendant. The material circumstances were these : Elijah Heaton, being the owner of certain real estate, sold the same to the defendant Wilson, and in part payment of the purchase money took from him a bond, conditioned for the payment of four hundred and fifty dollars, which was secured by a mortgage of the premises. On the twenty-fourth *of November, 1829, Elijah Hea- r*249~] ton, the mortgagee, executed the following instrument. " For a valuable consideration, I assign, transfer, and set over to Aaron J. Phillips, manager of the Arch Street Theatre, a bond and mortgage from William Wilson to Elijah Heaton, dated the eighth day of July, 1829, in which the said Wm. Wilson is bound to me the said Elijah, in the penal sum of nine hundred dollars, conditioned for the payment of four hundred and fifty dollars. " The condition of this assignment is, that if the receipts of the Arch Street Theatre on Saturday evening, November 28, 1829, shall amount to three hundred dollars, the said Aaron J. Phillips, shall re-assign the said bond and mortgage to me, and pay unto me whatever sum of money may be received in the said theatre, upon the said night, beyond the aforesaid sum of three hundred dollars, or if the receipts upon the above night shall be less than three hundred dollars, the said Aaron J. Phillips is to hold the said 242 SUPREME COURT [Dec. Term, (Solomon v. Wilson.) bond and mortgage as security for such sum as may be necessary to make up the said amount, which if not paid by Saturday, December tith, 1829, the said bond and mortgage is to be consid- ered as absolutely assigned to the said Aaron J. Phillips, his heirs, executors, administrators, or assigns. " Witness my hand and seal this twenty-fourth of November, one thousand eight hundred and twenty-nine, ELIJAH HEATON, [L. s.] Sealed and signed in the presence of us, T. H. COPELAND, SAMUEL IRWIN." On the 3d of February, 1830, Aaron J. Phillips executed the following instrument. " Whereas by virtue of the within written instrument a certain bond and mortgage therein referred to, were assigned to me, Aaron J. Phillips, on certain conditions, which conditions have not at this day been complied with, and the said bond and mort- gage have become absolutely vested in me. "Now, know all men by these presents that I, Aaron J. Phil- lips, of the City of Philadelphia, for and in consideration of the sum of one hundred and twenty-five dollars, to me in hand paid by Samuel M. Solomon, also of the said city, the receipt whereof is hereby acknowledged, have assigned, transferred, and set over, and by these presents do assign, transfer, and set over, unto the said Samuel M. Solomon, Esq., his heirs and assigns, the said bond and mortgage and all my right, title, and interest therein, and all future benefit and profit to be derived therefrom. r*9431 *" Witness my hand and seal at Philadelphia this J third day of February, one thousand eight hundred and thirty. AARON J. PHILLIPS, [L. s.] Sealed and delivered in the presence of us, GEO. P. HOOD, J. A. PHILLIPS." Solomon, the assignee, brought suit upon the mortgage, and proceeded to a sale of the premises, the purchase money of which having been brought into court, was claimed by several lien cred- itors. The Court directed an issue to ascertain (inter alia) the amount chargeable as receipts, for tickets of admission to the Arch-Street Theatre on the 28th of November, 1829, agreeably to the terms of the assignment. The issue was tried, and the jury found that the receipts^ amounted to one hundred and fifty-five dollars, twenty-five cents. 1835.] OF PENNSYLVANIA. (Solomon v. Wilson.) The Court then ordered distribution, and (inter alia) to S. M. Solomon, the principal and interest of the mortgage given by the defendant to Heaton, amounting to $493 73 Deducting therefrom the receipts of the Arch- Street Theatre and interest thereon 183 18 To be received by him $310 55 From this decree Elijah Heaton appealed to this Court, and as- signed for error. " 1st. That the Court below erred in ordering the payment to S. M. Solomon of the sum of three hundred and ten dollars, fifty- five cents, being the amount of the mortgage money after deduct- ing the receipts of the theatre, instead of giving him the sum of one hundred and forty-four dollars, seventy-five cents, being the difference between the sum of three hundred dollars and the actual receipts of the theatre. 2d. That the Court erred in not awarding to Elijah Heaton the balance of the mortgage money, after deducting the sum of one hundred and forty-four dollars, seventy-five cents." Mr. W. M. Meredith, for the appellant, contended that the assignment by Heaton to Phillips was merely as a pledge or col- lateral security ; and that the condition was in the nature of a penalty, against which the Court would relieve. He cited Hart v. Ten Eyck, (2 Johns. Ch. Rep. 100.) Mr. Phillips, contra. The assignment contained an express stipulation that if the money was not paid by a certain time the mortgage *sho\Jd be considered as absolutely assigned, r* 044-1 Now, it is important that no offer to redeem is shown, and no claim set up until the premises are sold, and the proceeds brought into Court. Here the mortgage was* not payable for some time. The security was insufficient, being upon frame buildings ; the risk of loss therefore fell on the assignee. This was not a hard bargain for Heaton. If the receipts of the theatre had amounted to $1500, which has been the case sometimes, he would have received all above $300. Besides, Heaton has no right to ask this Court to interfere. He was not a party in the Court below. If Solomon has received more than he is entitled to, he may be considered a trustee for Heaton. Reply. The proceedings, on a question of distribution, are in the nature of Chancery proceedings. Every one having an in- terest in the fund is supposed to be a party, and is bound to 244 SUPREME COURT [Dec. Term, (Solomon t). Wilson.) take notice of what is going forward. In fact the issue in the Court below was directed for the benefit of Heaton. The opinion of the Court was delivered by GIBSON, C. J. The difference between a mortgage and a pawn, if there be any, serves but to strengthen the case of the pawner. It is said by Mr. Powell in his treatise pp. 3, 4, that by forfeiture, the interest of the mortgagee becomes absolute at law, while the pawnee has but a special property as a security. But it seems to be agreed that whether the title of the pawnee be absolute or qualified, his redemption in equity is at least equal to that of a mortgagor (Bac. Abr. Bailment, B.) What were the terms of the pledge here? The mortgage was as- signed as a security for whatever the receipts at the theatre might fall below a specified sum, on condition that it should become absolute if the assignor failed to make up the difference by a given day. Was not this condition a penalty, against which equity will relieve ? In Stoever v. Stoever, (8 Serg. & R. 434,) it was agreed that a mortgagor against whom an ej ctment was pending, should confess judgment with stay of execution, at the expiration of which, if the debt was not paid, a habere facias should issue, and the rents of the current year be paid to the mortgagee. And this, as equity will but in very special circum- stances enlarge the time of redemption after foreclosure by agreement, was held to be a foreclosure on terms that had sub- sequently become absolute. It is to be remarked, however, that among the ingredients of that case, were material ones which do not enter into this. The value of the premises but little ex- ceeded the amount of the debt, and the creditor had made im- provements in which the debtor had long acquiesced ; so that there was clearly enough in the transaction to show that it was a conditional sale of the equity of redemption. Such was not the case here. The mortgage was pledged as a security for what Burned out to be less *than a third of its value ; and, as time' does not seem to have been a cardinal point of the agreement, the delay being susceptible of compensation by inter- est, the question seems to be whether the condition had respect to a penalty or to stipulated damages. As the inclination of the Court is to relieve wherever the loss admits of compensation, stipulated damages result but from an explicit antecedent valu- ation of the loss by the parties themselves. It is an inflexible rule, and apparently applicable here, to relieve wherever the act to have been done, was payment of money.* " There is one case," said Justice Chambre in Astley v. Weldon, (2 B. & P. 354,) *See 2 Harris, 145. 1835.] OF PENNSYLVANIA. 245 (Solomon v. Wilson.) " in which the sum agreed for must always be a penalty ; and that is where the payment of a smaller sum is secured by a greater." And Lord Loughborough in Orr v. Churchill, (1 H. B. 227,) having stated that for non-performance of collateral acts, the damages may be estimated by a jury or by previous agree- ment, says: "But where the question is concerning the non-pay- ment of money, in circumstances like the present, the law, having by positive rules fixed the rate of interest, has bounded the meas- ure of damages ; otherwise the law might be eluded."* Now the agreement being in effect to pay the amount of the mortgage by an absolute transfer of it, if the difference were not made good by a certain day, was not the alternative a penalty ? It was a for- feiture to enforce payment, and therefore a penalty in substance if not in form. But the character of the forfeiture is ascertain- able from no particular words, but, as said by Lord Eldon in Astley v. Weldon, from the whole instrument. It is in fact only in cases of informal expression that questions of the sort arise ; for where the parties themselves call it a penalty, relief is of course. Had the assignor given his own bond in the same amount as the mortgage, with condition to assign the mortgage uncondi- tionally in default of payment, there could not have been a ques- tion; and what is the difference, where the assignee has the assignor's sealed agreement that a transfer simultaneously made shall be absolute on the happening of the same contingency ? It is in substance equally an agreement to forfeit the same sum by failure to pay ; and it is immaterial to the assignee, as well as to the question, whether it be secured by the engagement of the as- signor or the engagement of another. The difference in amount between the value of the mortgage and the sum intended to be secured by it, being in the ratio of more than three to one, is enormous ; and to hold the alternative for payment at the day to be stipulated damages in the form of a conditional sale instead of a penalty, would be unreasonable and unjust. The parties them- selves did not so understand it. The decree of the Court below therefore is reversed, and it is ordered that the appellant have leave to take out of Court the balance of the fund, after paying to the holder of the mortgage the principal and interest due on the original demand. Decree accordingly. Cited by Counsel, 5 Barr, 186 ; 1 Jones, 34. See also 6 Watts, 130, 406 ; 7 Id. 375 ; 3 Watts & Sergeant, 388 ; 3 Har- ris, 321. See 12 Wright, 454. 246 SUPREME COURT [Dec. Term, [PHILADELPHIA, FEBRUARY 6, 1836.] SKERRETT against BURD. CASE STATED. A conveyance in fee simple of a lot of ground, is a revocation of a will pre- viously made by the grantor, so far as respects such lot ; although upon such conveyance the grantor reserves to himself a ground rent in fee ; and such ground rent does not pass to the devisee of the lot. THIS was an action of covenant brought by David C. Skerrett against Edward S. Burd, to recover the arrears of a ground rent; in which a case was stated for the opinion of the Court, as follows : " John Shields of the City of Philadelphia, being seized in fee of certain messuages, tenements and lots of ground, situate in the half square between Broad street and Juniper street, and Spruce street and Locust street, in the said city, made and executed his last will and testament, dated the twenty -fourth day of December, 1829, which was duly proved in the Register's Office for the City and County of Philadelphia, on the twenty-third day of June, one thousand eight hundred and thirty-one. By this will he recognized his three illegitimate children in the following words : "Item, Whereas, I have three children, called and known by the names of James Shields, Mary Shields and Edwin Shields, which said three children are illegitimate, but have been and are hereby owned and recognized by me." And after other devises aud bequests he then preceded : "Item, I do give and devise uuto my daughter, the said Mary Shields, when and as soon as she shall attain the full age of twenty-one years, her heirs and assigns," (inter alia,) "also, all and singular my messuages, tenements and lots of ground, situate in the half square between Broad street and Juniper street, and Sprnce street and Locust street, in the City of Philadelphia," "to hold and take the same to her, the said Mary Shields, her heirs and assigns, to and for her and their own proper use, benefit and behoof forever." And after other devises and bequests the testator disposed of the resi- due of his estate as follows : "Item, and as to all the rest, residue and remainder of my es- tate whatsoever and wheresoever in the world, real, personal and mixed, I do give, devise and bequeath the same to my said three children, James Shields, Mary Shields and Edwin Shields, when and as soon as they shall severally attain the age aforesaid, their respective heirs, executors, administrators and assigns forever, in equal third parts as tenants in common and not as joint tenants. Item, in case of the decease of either or any of my said three chil- 1835.] OF PENNSYLVANIA. 246 (SkerretttJ. Burd.) dren, before he, she or they shall attain the full age of twenty-one years, as aforesaid, and without issue, then I do give, devise and bequeath the part and share * of such decedent or deced- r* 04.71 ents to the survivor or survivors of them my said three * - children, their heirs, executors, administrators and assigns, if more than one, share and share alike as tenants in common. But if all my said three children should depart this life before attaining the age aforesaid, and without issue, then I do give, devise, and be- queath all my estate, real, personal and mixed, unto the Pennsyl- vania Institution for the Deaf and Dumb, their successors and as- signs forever." After the execution and publication of his said last will, the said John Shields, on the fifteenth day of April, 1830, did, by deed bearing date the same day, grant and convey unto Edward S. Burd, (the above defendant) in fee simple, a certain lot or piece of ground situate at the north-east corner of Spruce and Broad streets, in the said city, containing in front on Broad street ninety-seven feet, and in length or depth one hundred and thirty feet, to a twenty feet wide alley ; yielding and paying therefor and thereout unto the said John Shields, his heirs and assigns, the yearly rent or sum of four hundred and twelve dollars and twenty-five cents, in equal half yearly payments on the fifteenth day of the months of April and October in every year thereafter forever, clear of taxes, &c. In which same deed a power of re-entry is contained in the following words, viz. " But if suf- ficient distress cannot be found upon the said hereby granted premises to satisfy the said yearly rent in arrear and the charges of levying the same, then and in such case it shall and may be lawful for the said John Shields, his heirs and assigns, into and upon the said hereby granted lot and all improvements wholly re- enter, and the same to have again, re-possess and enjoy, as in his, their first and former estate and title in the same, and as though this indenture had never been made." Said lot being a part of the said messuages, tenements and lots of ground situate in the said half square first above mentioned and devised as aforesaid to the said Mary Shields. And the said John Shields did also after the aforesaid execu- tion and publication of his said will, on the fourteenth day of March, 1831, by deed bearing date the same day, grant and con- vey unto Adam Cornman, in fee simple, a certain lot or piece of ground situate on the east side of Broad street, at a distance of ninety-seven feet north from the north side of Spruce street, in the said city, containing in front, on Broad street, ninety feet nine inches, and in length or depth, eastward one hundred and thirty feet, to a twenty feet wide alley, yielding and paying there- for and thereout, unto the said John Shields, his heirs and assigns, 247 SUPREME COURT \_Dee. Term, (Skerrett t>. Burd.) the yearly rent or sum of ninety-eight dollars, in equal half yearly payments, on the sixteenth day of the months of August and Feb- ruary, in every year, forever, clear of taxes, &c., with a power of re-entry, similar in all respects to that contained in the deed f*24ft1 * ^ rs *' a ^ ove described, and in the same words. Said J lot being also a part of the said messuages, tenements and lots of ground, situate in the said half square first above men- tioned, and devised as aforesaid to the said Mary Shields. On the fourteenth day of June, 1881, John Shields intermar- ried with Eliza Rernstedt ; and afterwards, to wit, on the same day, died, having never republished his said last will and testa- ment, leaving neither father, nor mother, nor lawful issue, but a widow, the said Eliza Shields, and three brothers of the whole blood, to wit : Thomas Shields, Robert Shields, and David Shields. His three illegitimate children above named, survived the testator, and are still living, under age, and unmarried. In 1831, David C. Skerrett, the above plaintiff, was appointed by the Orphans' Court of the County of Philadelphia, guardian of the persons and estates of the said minors, James Shields, Mary Shields, and Edwin Shields. On the twenty-first of March, 1832, the said Eliza Shields con- veyed all her interest in the one-third part of the said yearly rent charges (inter alia) to David Shields, by deed bearing date same day and year. On the thirty-first day of March, 1832, the said David Shields and wife, by deed bearing date the day and year last aforesaid, conveyed all his one-third part of the said yearly rent charges, (inter alia) including the interest of the said Eliza Shields, so conveyed as aforesaid, together with all arrears of rents, to the said David C. Skerrett, (the plaintiff) in fee simple, upon certain trusts. On the fifth day of July, 1832, the said Thomas Shields, by deed bearing date the same day conveyed all his one-third part of the said yearly rent charges, (inter alia') together with all arrears of rent, to the said David C. Skerrett, (the plaintiff) in fee simple, upon certain trusts. On the twentieth day of August, 1832, the said Eliza Shields, conveyed by deed bearing date the same day, all her interest, (inter alia) of, in, and to the two-third parts of the said Thomas Shields and Robert Shields, in the said yearly rent charges, to the said David C. Skerrett, upon certain trusts. By these conveyances, the whole of the interest of the said Eliza Shields, David Shields and wife, and Thomas Shields, of, in, and to the said yearly rent charges, became vested in the said David C. Skerrett, the above plaintiff. On the ninth day of May, 1832, the said Adam Cornman, by 1835.] OF PENNSYLVANIA. 248 (Skerrett v. Burd.) deed bearing date the same day, conveyed the said lots, as above conveyed to him by John Shields, to the said Edward S. Burd, in fee simple, under and subject to the payment of the yearly rent charge so reserved as aforesaid. There are arrears of rent arising from the non-payment of these yearly rent charges. *Upon these facts, the following questions are sub- mitted to the Court for their opinion. 1. Did not Eliza Shields, by her intermarriage with John Shields after the publication of his last will, upon his death be- come entitled to a moiety of the rent charges during her life ? 2. Did not John Shields die intestate as to those two yearly rent charges, and did they not descend to his three brothers, Thomas Shields, Robert Shields, and David Shields, in fee simple, as tenants in common, subject to the life-estate of the widow in a moiety ? 3. Did not the conveyance above stated, vest in the plaintiff two-thirds parts of the said two yearly rent charges in fee simple, and an estate for the life of Eliza Shields, in a moiety of the other third part ? 4. Did John Shields, the testator, in and by the two several ground-rent deeds above specified, divest himself thereby of all estate whatever in so much of the said messuages, tenements and. lots of ground, situated in the half square between Broad and Juniper streets and Spruce and Locust streets, with the appur- tenances thereunto respectively belonging, devised (inter alia) to Mary Shields, in and by the said will, as Avere conveyed by the said two ground-rent deeds ? and did he die intestate of the two several rent charges, reserved in and by the said two ground- rent deeds respectively ? Or, did such an interest and estate in the said premises, continue and remain in him, notwithstanding the execution of the said ground rent deeds, as to be the subject of said devise, and upon which the same can in any manner operate ? If these questions should be determined in the affirmative by the Court, then judgment to be entered in favor of the plaintiff, for such sum as may be agreed upon by the parties or their counsel ; and, in case of any difference of opinion between them, the said sum shall be settled by the Court. If the Court shall determine these questions in the negative, then judgment to be entered in favor of the defendant." Mr. J. M. Read, for the plaintiff. This is an amicable pro- ceeding ; the object of which is the determination of a question of law. Mr. Burd is only a stakeholder. By a family arrange- ment between the widow and two of the brothers of the testator, VOL. i. 17. 249 SUPREME COURT [Dec. Term, (Skerrettc.Burd.) conveyances have been executed to carry the will into effect. The interest of one of the brothers is outstanding. 1. The will was revoked by the marriage of the testator. (Act of 19th April, 1794, 23.) 2. The conveyance of the lot on ground-rent, after the date of the will, was a revocation pro tanto. An alteration of the estate produces this effect. 4 Kent's Com. 513, &c. Even when a contract for the sale of land was rescinded, it was to be a revoca- r*9 r m ti n > * Walton v. Walton, (7 Johns. Ch. Rep. 258.) J -That after-acquired real estate does not pass, is recog- nized in the recent case of Crirard v. The Mayor $c. of Phila- delphia, (4 Rawle, 323.) There is an exception of the case of partition, but this is believed to be the only exception, 1 Hoven- den's notes to Vesey, 208, &c. : Attorney General v. Vigor, (8 Ves. 281.) Here there was a sale of land in fee, and the cre- ation of a rent charge, which was a new estate, 4 Black. Com. 42 ; Woodfall's Land & Ten. 29, note ; Co. Litt. 47 (a), 143 (6), 144, Mr. Margrave's note ; 19 Vin. Abr. 105, 107, title, Reser- vation ; 6 Bac. Abr. 22. Mr. Binney, for the defendant, stated that the counsel on both sides were of opinion that the will was revoked. He referred in addition to the cases cited by Mr. Read, to Livingston v. Liv- ingston, (3 Johns. Ch. Rep. 148.) The opinion of the Court was delivered by SERGEANT, J. The general rule in relation to a will is, that the estate disposed of must remain in the same condition till the death of the devisor ; if the estate be afterwards altered by the testator, so that it no longer exists as he devised it, the will is inoperative, and the act of alteration is construed a revocation. Parting with a portion of the estate, as by making a lease for life or years, or creating an incumbrance on it, as by mortgage, or conveyance for payment of debts, are only revocations pro tanto. 2 Christ. Black. 373. So a conveyance for a partition is no revocation. Ib. But says Lord Hardwicke, in Sparrow v. Hardcastle, reported in the note to 7 T. R. 416, when there is a complete disposition of the land without leaving any part of it in the devisor, it is a revocation. If a man make a will devising land, and after execute a feoffment to his own use, it is a revoca- tion of the will, notwithstanding it is in point of law the old use, and will descend ex parte paterna or materna as before. So a feoffment without livery, a bargain and sale not enrolled, or any other imperfect conveyance will be a revocation, because it im- ports an intention of altering the condition of the estate. So, where after the will, the testator executes any legal conveyance, 1835.] OF PENNSYLVANIA. 250 (Skerrett , Burd.) it is a revocation, because the estate is gone, and the will has lost the subject of ifs operation. If a man seised of real estate devise it, and after convey the legal estate, though there be only a par- tial declaration of trust, yet as he has granted the whole estate, it is a revocation of the will. So if a man seized of a legal estate makes his will, and then conveys the legal estate to another, in trust for himself, it is a revocation. Parsons v. Freeman, (7 Bac. Ab. 370). These are the legal principles, which have been determined, and they have been inflexibly maintained in analagous cases. 4 Kent's Com. 513. A conveyance by the testator in fee simple, of a lot of ground which he had devised, reserving a ground rent in lieu of the lot * itself, is a complete disposition of his estate in the lot. It is a substitution of an incorporeal hereditament issu- ing out of the ground, usually, as in this case, with clauses of dis- tress and condition of re-entry to enforce the payment of the rent. On the other hand there is a stipulation for redemption within a certain time, which when it happens, turns it into a sale, and renders the consideration money personal property to those who receive it. These reservations and clauses preserve to the grantor no residuary estate in the land ; they create new services and rights instead of it. It somewhat resembles the case of #n exchange of lands, which has been held to operate as a revocation, so as to exclude the land taken in exchange, from the operation of a prior devise. Being then an entire transfer and disposal of the estate in the land, there is nothing left for the devise of the lots of ground to operate on, and the will is so far revoked by the subsequent acts of the testator. That the ground rents thus created could not pass by the residuary bequest, as after-acquired property, under our act of Assembly, in force when the will was made, results from the decision in The City of Philadelphia v. G-irard, (4 Rawle, 323).* It is, therefore, the opinion of the Court, that John Shields died intestate as to the two ground rents in question. That they descended to his three brothers, Thomas, Robert, and David, in fee simple, as tenants in common, subject to the widow's life es- tate in a moiety. That the conveyances of the widow and two of the brothers, Thomas and David, vested in the plaintiff two-third parts of the said ground rents in fee simple, and an estate for the widow's life in a moiety of the other third part. Judgment for the plaintiff according to case stated. Cited by Counsel, 2 Barr, 169 ; 4 Id. 90 ; 1 Jones, 431 ; 7 Harris, 68 ; 4 Casey, 30 ; 7 P. F. Smith, 211. Cited by the Court, 2 Wharton, 111 ; 5 Watts & Sergeant, 199; 8 Id. 127 ; 2 Harris, 460 ; 4 Wright, 224. See also 5 Watts, 53 ; 4 Barr, 88. *See post, 503. 252 SUPREME COURT [Dec. Term, [*252] [* PHILADELPHIA, FEBRUARY 6, 1836.] BURR ayainst SIM and Others. IN ERROR. 1. A testator directed his executors to sell all his real estate, goods and chattels, and to pay the proceeds, together with all the moneys coming to their hands after the payment of his just debts, funeral expenses and legacies, to two persons whom he appointed guardians for his son, and whom he directed to invest the money and to apply the interest thereof to the maintenance and education of his son during his minority, and to pay the principal to him on his arriving at the age of twenty-one years. But in case he should die before his arrival at that age, he gave the same to the children of a brother and sister in Scotland ; in the same clause with the directions to the executors to sell, he declared his will to be that his houses should be rented out "until the same shall be sold as aforesaid." The houses were not in fact sold. The son of the testator arrived at the age of twenty-one, and died about a year thereafter, hav- ing made a will in which he devised one of the houses to A., "her heirs ' and assigns," and the other to B. without words of inheritance : Held, 1 . That the real estate of the testator was in equity converted into per- sonal, by the directions of his will, and continued so during the minority of the son : 2. That the son was to be considered as having elected to take the houses as real estate, and that B. took only a life estate in the huse devised to him. 3. That the election to take as real estate oper- ated as a new acquisition, and not to cast the descent upon him as from the part of his father, and consequently, that the reversion in fee of the house devised to B. vested in the heirs ex parte materna as well as those ex parte paterna. 2.. A testator began his will thus, "I, A. C. C. feel myself in declining state of body, and knowing the certainty of death, and not knowing the time thereof:" after certain bequests he gave to A. "or to her heirs or assigns one three-story brick house in Arch street, No. 63. Further I icish to give to W. C. one other three-story house in Arch street, No. 65," the will concluding thus, and not being signed by the testator : Held that W. C. took only a life estate in the house devised to him. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment brought by George Sim, Margaret Sim, Jean Ander- son, and Peter Nicholson, ngainst Postrema Burr, to recover pos- session of a house and lot of ground situate on the north side of Mulberry (or Arcn) street, between Second and Third streets, in 'the City of Philadelphia. The plaintiffs below claimed as heirs of a certain Archibald Cummings Craig, who died seized or possessed of the premises on the 5th of September, 1797, and whose title to the same arose as follows : George Craig, the father of the said Archibald Cummings Craig, died seized of the premises, with other real estate situate in the City of Philadelphia and elsewhere : having made his last 1835.] OF PENNSYLVANIA. 252 (Burr v. Sim. ) will and testament dated the 17th day of June, 1782 ; in which, after directing the payment of all his just dehts and funeral ex- penses by his executors, and after giving his wife a legacy of .250, he made the following provision : "Item. My will is, and I do hereby authorize, impower and direct my executors hereafter named, and the survivor of them to * grant, bargain, and sell, either at public or private sale, and as such time or times as they or the survivor of them shall think most convenient and proper, all those my two messuages or tenements, and lots of ground situate in the City of Philadelphia, and my house and lot in the borough of Lancaster, and to make, seal, execute, and deliver a deed or deeds, valid in the law, for the same, to the purchaser or purchasers thereof, his, her, or their heirs and assigns forever; and my will further is, that my said executors or the survivor of them, do sell either at public or private sale, as may be thought most proper, all the rest and remainder of my goods and chattels ; and the money arising by .the sale of my said real and personal estate, together with all other moneys coming to their hands, after the payment of my just debts, funeral expenses, the legacies herein bequeathed, with the inci- dental expenses and a full compensation for their care and trouble, my will is, and I do hereby order and direct my said executors to pay into the hands of my friends William Craig and William Wells of the City of Philadelphia, or the survivor of them, to be applied and disposed of as hereinafter mentioned, whose receipt to my said executors, shall sufficiently requit, release and dis- charge them; and my will is, that my houses be rented ont until the same shall be so sold as aforesaid. " Item. I do hereby nomieate, constitute, and appoint my said friends, William Craig and William Wells, to be guardians over the person and estate of my son Archibald Cummings Craig, during his minority, and I do hereby authorize, impower, and direct the said William Craig and William Wells, and the sur- vivor of them, to put and place out the money, so to be paid to them by my executors, at interest, on security, as they or the survivor shall deem good, from time to time, but at the sole risk of my said son, and shall apply the interest thereof, to and for the maintenance, education and clothing of my said son during his minority ; and upon his my said son's arrival to twenty-one years. of age, to pay over all the moneys in their hands, after de- ducting all necessary expenses and a full compensation for their care and trouble, unto my said son, to whom I give and bequeath the same when he arrives at the age of twenty-one years, under the restrictions hereafter mentioned. But in case my said son shall die before his arrival to that age without leaving lawful issue, then I give and bequeath the same to the children of my brother, 253 SUPREME COURT [Dec. Term, (Burr . Sim.) Archibald Craig, and of my sister, Jane Sim, deceased, of that part of Great Britain called Scotland, to be equally divided be- tween them part and share alike." He then directed the emancipation of certain negro slaves, and proceeded as follows: " Whereas I have some moneys in the stocks or funds in Eng- land under the care and management of Messrs. Mildred and Roberts, merchants in London, which yield an annual interest, now m j will * an d mind is, that there be paid out of the interest thereof to the children of my sister, Jane Sim, deceased, the sum of thirty pounds apiece, the first payment thereof is to be made within four years after my decease, to the youngest of the said children, and the next payment to the next younger child, a twelvemonth after, and in the same mariner an- nually till they shall each of them have been paid thirty pounds, and the remainder of the said money I give and bequeath to my said son, Archibald Cummings Craig, if he shall live to attain the age of twenty-one years, but if he dies before that time, without leaving lawful issue, then I give fifty pounds thereof to and for the use of Bedrnan's house in the borough of Elgin, in the shire of Murray, in Scotland, to be paid to the overseers or managers of the said house ; and other fifty pounds thereof I give to and for the use of the poor of the Episcopal Meeting in the said borough of Elgin, to be paid to the corporation of the said bor- ough, and by the said corporation placed out at interest, which interest is to be paid yearly to the said poor on Christmas day forever, and the remainder of said moneys I give and bequeath unto the children of my said brother and sister, equally to bo divided between them. 'Item. .My will and mind is, and I do order the guardians aforesaid, to take my said son under their care and management and send him when he is twelve years old to be educated at Old Aberdeen in Scotland ; but if his mother refuses to deliver him up to the said guardians, or he himself refuses to go under their care and management, then and in either case, my will is, and I hereby declare that he my said son shall be entitled to and receive no more than only one half part of what I have hereinbefore in- tended to give him, and the other half part thereof I give aud bequeath to the children of my brother and sister aforesaid, equally to be divided between them. " Lastly, I nominate, constitute and appoint my friends Henry Hall Graham of the borough of Chester, and Richard Riley of the town of Chichester, sole executors of this my last will and testament, hereby revoking all former wills by me made, and de- claring this and no other to be my last will and testament." The executors of George Craig never actually sold the premises 1835.] OF PENNSYLVANIA. 254 (Burr. Sim.) in question, and were both dead at the commencement of this ejectment. Archibald Cummings Craig, the son of the testator was sent when he was twelve years old to Aberdeen, in Scotland, where he received his education ; and thence returned to Penn- sylvania. He arrived at the age of 21 years some time in the year 1796. On the 5th of September, 1797, being absent from home and in the Sta'te of New Jersey, he made a will in the following words: " In the name of God, amen. I Archd. Cumiss Craig feel my- self in a declinening state of body, and knowing the certainty of death, and not knowing the time thereof the funds in Eng. "My funds I have in the Bank of England .1 wold wish to devise *unto John Creigh son of Archb. Gregg of Eegin r*9rr-i County of Murough in the kingdom of Scotland, and * J unto Mr. Anderson, son in law unto the aford. Archibald Craig an inhabitant of Scotland, to be equal dd. between the of sd. Jo. Creg. and sd. Mr. Anderson. " Likewise I wold give onto my loving frnd Joseph Louriat of the city of Philadelphia six hundred dollars. " Further I wish to give unto Mesrgs. Martha Ross wife of Capt. David Ross of the citty of Philadelphia, or to her heirs or assigns, one three story brick house in Arch street, No. 63. " Further I wish to give unto Doct. William Gurry of the citty of Philada., one other 3 story house in Arch stt, No. 65." The three story house in Arch street, last mentioned, was the property in dispute in this ejectment. The probate was as follows : " Henry Disborough of Somerset county, and state of New Jersey, being duly sworn on the Holy Evangelist of Almighty God, did depose and say, that Archibald C. Craig of Philadel- phia, died at this deponent's house in sd. county of Somerset on the fifth of this instant. That on the day of his death the within writing was wrote part by the deceased and part by this deponent at the request of the deceased, and that the bequests therein set down and wrote by this deponent, were made in the hearing of the said deceased and acknowledged by the deceased to be wrote agreeably to his wishes, and that at the time the bequests were read to the said Archibald C. Craig, he the sd. Craig was of sound and disposing mind and memory as far as this deponent knows, and as he verily believes. This deponent further says that he asked the deceased as to further disposition of his estate, to which he replied, that as to the bequests already set down he had made up his mind upon them for some time past, but as to further bequests he had not fully made up his mind upon them, and must take some time to think upon the subject ; upon which 255 SUPREME COURT [Dee. Term, (Burr v. Sim.) this deponent left the room for some time, and upon his return found the deceased, as he thought, incapable of proceeding any further on business. HENRY DISBROW. Sworn at Bedminster in Somer- set county, the 13th day of September, A. D. 1797, be- fore me, JOHN MEHELM, Surrogate of sd. county. "Henry Disborough junior, being duly sworn on the Holy Evangelists of Almighty God did depose and say, that he was present in the room where Archibald C. Craig deed., lay sick on the fifth instant; and heard Henry Disborough senr. read the bequests in the within writing, to the deceased, and heard the r*o'-p-| said deceased say *that they were wrote agreeably to J his wishes and will, and at that time the sd. deceased was of sound and disposing mind and memory as far as this depo- nent knows, and as he verily believes. HENRY DISBOROUGH, JR. Sworn at Bedminster, in Somer- set county, the 13th day of September, A. D. 1797, be- fore me, JOHN MEHELM, Surrogate." Archibald Cummings Craig, died unmarried and without issue. On the part of his father, George Craig, his next of kin were four first cousins, the issue of a paternal uncle and aunt. These, or the issue of such as were since deceased, were the plaintiffs in this ejectment. On the part of his mother he left two first cous- ins, viz. : 1st, John Ewer Sword; 2d, Ann Sword married to Dr. Nathan Dorsey, and the issue of another first cousin, viz. : James W. Sproat. John Ewer Sword, and Ann Dorsey died before the commencement of this suit. Dr. Wm. Currie, the devisee named in the will of Archibald Cummings Craig, died in the year 1828, intestate, leaving two children, viz. : 1st, Isabella, who married J. G. Williams. 2d, William Currie, who conveyed all his interest in the premises to the said J. G. Williams. The defendant, Postrema Burr, came into possession during the lifetime of Dr. Currie, as his tenant. The said J. G. Williams was admitted by the Court to defend as landlord of the defendant. The foregoing circumstances having been proved on the trial, the counsel for the defendants requested the Court to charge the J UI 7> 1835.] OF PENNSYLVANIA. 256 (Burr v. Sim.) 1. That by the will of Archibald C. Craig, Dr. Wm. Currie took a fee simple in the house and lot devised to him. 2. That by the will of George Craig, the real estate devised to his executors to be sold, became converted into personal estate, and as such, vested in Archibald C. Craig, and was transmissible as such. 3. That by the will of Archibald C. Craig, the property in dispute passed as personal property to Dr. William Currie, and therefore that he took an absolute interest in it. 4. That if at the death of Archibald Craig, the property in dispute is to be considered as real estate, yet it is to be regarded as a new acquisition by him, and not as having descended to him, or having been devised to him as real estate by his father, and therefore under the act of 1794, passed to this heirs on the part of his mother, as well as to the heirs on the part of his father, if Dr. Currie took only a life estate. The judge, however, delivered his opinion to the jury, 1. That Dr. William Currie took only a life estate in the premises under the will of Archibald C. Craig, and not a fee simple. * 2. That the real estate directed by the will of George r^o^-i Craig to be sold by his executors, was not converted into *- personal estate, nor as such did it vest in Archibald C. Craig, nor did the property in dispute pass by the will of Archibald C. Craig to Doctor William Currie as personal property, nor did the said Dr. Currie take an absolute interest in it .as such. 3. That the premises in dispute came to Archibald C. Craig by descent from his father, George Craig ; and upon the death of the said Archibald, descended, subject to the life estate of Dr. Currie, to his next o kin on the part of his father. 4. That no interest in these premises ever vested in the next of kin of the said Archibald, on the part of his mother. 5. That the plaintiffs in this suit are entitled to, and must re- cover the whole of the house and lot in Arch street. Whereupon the defendants took a writ of error: and on the return of the record assigned the following errors, viz. : "1. That the Court erred in charging the jury. ' that Dr. Wil- liam Currie took only a life estate in the premises under the will of Archibald C. Craig, and not a fee simple.' 2. That the Court erred in charging the jury, ' that the real estate directed by the will of George Craig to be sold by his exe- cutors, was not converted into personal estate, nor as such did it vest in Archibald C. Craig, nor did the property in dispute pass by the will of Archibald C. Craig to Dr. William Currie as per- sonal property, nor did the said Dr. Currie take an absolute inter- est in it as such.' 257 SUPREME COURT [Dec. Term, (Burr v. Sim.) 3. That the Court erred in charging the jury, ' that the prem- ises in dispute came to Archibald C. Craig by descent from hia father George Craig, and upon the death of the said Archibald, descended, subject to the life estate of Dr. Currie, to the next of kin on the part of his father.' 4. That the Court erred in charging the jury, ' that no inter- est in these premises ever vested in the next of kin of the said Archibald on the part of his mother.' 5. That the Court erred in charging the jury ' that the plain- tiffs in this suit are entitled to, and must recover the whole of the house and lot in Arch street.' ' : Mr. WJtarton, for the heirs of Dr. Currie, argued 1. That Dr. Currie took a fee in the premises. This is the case of a will imperfectly expressed, though sufficient appears to manifest the intent of the testator. The preamble is incomplete ; so is evidently the last sentence. That the Courts have power to supply words to complete the sense of the testator, is proved by many cases, most of which are cited in the notes to Mr. Jarman's f*2^81 e dition f Powell *on Devises, p. 374. This is a fair -" case for the exercise of this power, by completing the preamble as the testator probably intended, with words of general disposition, which would have been held to enlarge an estate into a fee, which otherwise would have been only an estate for life. French v. M'llhenny, (2 Binn. 13 ;) Lambert's Lessee v. Paine, (3 Cranch, 96 ;) Powell, 370, &c. In the recent case of Neide v. Neide, (4 Rawl 75,) the testator devised to his son J. N., his " late purchase from E. C., as also four ares of Woodland, being in a corner," &c. The word also was held by the Court to con- nect the " late purchase," with the 4 acres of woodland, so as to give a fee in the latter. Here the word further may be allowed the same effect. 2. By the will of George Craig, the premises were directed to be sold, and were in equity considered to be actually converted into personal property ; and as such, they vested in A. C. Craig, and passed by his will as personal property to Dr. Currie, who, con- sequently took an absolute interest in them ; words of perpetuity not being necessary in gifts of personalty. The rule of equity on this subject is clearly established (Leigh & Dalzell on Conver- sion, p. 48, &c.) and has been recognized in this country. Craiy v. Leslie, (3 Wheaton, 563;) Allison v. Wilson, <13 Serg. & R. 330 ;) Morrow v. Brenzier, (2 Rawle, 185.) Taking it then as clear, that the positive directions of this will effected a conver- sion, it is necessary for the other side to show affirmatively, that there has been a reconversion. The onus lies on them. Head v. Newdiyate, (2 Mer. 531.) The reconversion could not have 1835.] OF PENNSYLVANIA. (Burr V. Sim.) taken place during the minority of A. C. Craig, since as an in- fant, he had not the power. Earlom v. Saunders, (Amb. 241 ;) Van v. Barnett, (19 Ves. 109.) Nor had his guardian. Hook v. Worth. (1 Ves. Sen. 460 ;) Leigh & Dalzell, 149. Did he elect after he came of age ? He was 9 years old at the death of his father, and came of age about one year before his own death. Actual possession of the premises, as real estate, was not proved; if it had been proved, it would not have been sufficient, consider- ing the short time he lived after 21. Dauers v. Polices, (1 Eq. Gas. Abr. 396.) In Kirkman v. Mills, (13 Ves. 338,) the Master of the Rolls was of opinion, that the occupation of land for two years, was too short to presume an election. In AsJiby v. Palmer, (1 Mer. 296,) the property continued converted in law, though it was not so in fact, for 43 years. In Morrow v. Bren- izer, C. J. Gibson, intimates that a reconveyance is necessary. The will of A. C. Craig, which will be relied upon on the other side, is by no means conclusive. It was made under circumstances which seem to exclude the idea of an intention to reconvert ; and the description of the property, as "a house," &c. was unavoid- able, whatever were his intentions ; as it had not been converted in fact. If he had held it on a lease for 1000 years it would still have been personal estate, although in his will he should have spoken of it as real. * Mr. /. M. Read for the heirs ex parte materna, con- r*Ocn tended that A. C. Craig, elected to take the premises as "* real estate, on arriving at full age, and, as such, that they were to be considered a new acquisition, which, by the laws of Penn- sylvania, went, upon his death, to his next of kin generally. The 12th section of the Act of 1794, regulates the course of de- scent in a case like the present. In Bevan v. Taylor, (7 Serg. & R. 403,) Judge Duncan who delivered the opinion of the Court, lays it down, that in case of an acquisition not coming on the part of the father or mother, the estate goes to all the next of kin. It is settled, that in all omitted cases, the heir at common law takes, Cresoe v. Laidley, (2 Binn. 285.) The estate must have come as real estate from the father. Now, the will of George Craig directs the sale of the property at all events ; and this is the case of a conversation out and out. Jeremy on Equity, 530 ; 1 Meri- vale, 296, Craig v. Leslie ; Cruise v. Barley, (3 Peere Wms. 22;) Duroure'v. Motteoux, (1 Ves. Sen. 320;) Mallabar v. Mallabar, (Cas. Temp. Tallbot, 79 ;) Yates v. Compton, (2 Peere Wms. 308 ;) Doughty v. Bull, (2 P. Wms. 320.) In Allison v. Wilson, (13 Serg. & R. 330,) it was held that a judgment did not bind the interest of an heir under circum- stances like the present. The same doctrine was maintained in 259 SUPREME COURT [Dec. Term, (Burr 0. Sim.) Morroiv v. Brenizer, (2 Rawle, 189 ;) and C. J. Gibson there intimates a strong opinion that the descent was broken. In a still later case, the same view is taken. Hartman's Estate, (4 Rawle, 39.) In Simpson v. Hall, (4 Serg. & R. 337,) the father had made a settlement on land ; and the money paid for patenting was derived from his estate, yet it was held to be a new acqui- sition. That this is not a mere naked power is evident. There was an express direction, followed by a trust. Franklin v. Os- yood, (2 Johns. Ch. Rep. 20 ; 14 Johns. Rep. 527 ;) 7 Brown P. C. 559 ; Sugden on Powers, 393. It is settled by the authori- ties, that no elecction could have been made by or for A. C. Craig, until he arrived at full age ; that it then came to him as personal property, and it seems to follow that his election to take it as real estate was in the nature of a purchase. Mr. Scott and Mr. Bradford for the heirs ex parte paterna. 1. Dr. Currie took only a life estate. This will contains none of the expressions which have been relied upon in other cases, to give the fee. The use of the word heirs in the fourth clause, shows that the testator knew what was necessary for the purpose. The word further means no more than item. Ferres v. Smith, (17 Johns'. Rep. 221 ;) Mu-dqe v. Blight > Cowper, 35*2 ;) Buzby v. Buzby, (1 Dall. 226 ;) Clayton v. Clayton, (3 Binn. 476 ;) Steele v. Thompson, (14 Serg. & R. 85 ;) Evans v. Knorr, (4 Rawle, 66.) 2. The doctine of conversion is a creature of equity. It was introduced to prevent injustice and to carry out the designs of testators and where a contrary result would be produced, the T*2601 * wn * c h considers land as land, will be left to itself. There is no case in which this doctrine has been inter- posed, except to sustain a plain general intent. Now the will of George Craig shows an evident desire to favor his Scottish relations. The object of the sale was to enable them to take as legatees ; since, as aliens, they could not take real estate. This Court is now asked to set up a fiction, for the purpose of letting in persons who were strangers in blood to the testator. Now it is settled that where the object of the sale fails, equity will not compel the execution of the power. Leiyh v. Dalzell, 117, 119, and the cases cited ; Hewett v. Wriyht, (1 Bro. C. C. 86 ;) Smith's Lessee v. Folwell, (1 Binn. 558 ;) Jackson v. Jansen, (6 Johns. Rep. 73 ;) Clark v. Campbell, ( 2 Rawle, 215 ;) 1 Bro. C. C. 226. This was a mere naked power, created too before the passage of the act of 1792. The fee descended to the heir at law, subject to the power. \f\ Allison v. Wilson, the will was made after the act of 1792. So in Morrow v. Brenizer. There is nothing devised to the executors by this will. The distinction 1835.] OF PENNSYLVANIA. 260 . Sim.) between a devise of the estate to the executors, and a devise of an authority to sell, is still maintained, notwithstanding some efforts to impugn it. Co. Litt. 113, (a;) Sugden on Powers, 106, 459, &c.; 1 Vernon, 204 ; Lancaster v. Thornton, (2 Burr. 1027 ; Roper v. Radcliff, 9 Mod. 167 ;) Plunkett v. Penson, (2 Atkyns, 291 ;) 3d East, 558 ; 1 Caines, 16. Mr. Sugden lays it down expressly, that " where a power is given by a will to trustees to sell an estate and apply the money upon trusts, the power is in the nature of a trust. The legal estate, until the exe- cution of the power descends to the heir at law." [ROGERS, J. There is a direction in this will that the houses shall be rented until a sale is made ; does this not, coupled with the direction to sell, seem to give the estate to the executors ?] In Carpenter v. Collins, (Yelverton, 73,) the executors were directed to rent the real estate, &c., yet the real estate was held to be in the heir. Then, if the executors had only a power, and there was no de- vise of the land to any one, the heir was certainly in by descent. Co. Litt. 169; Hunt v. Rousmaniere, (8 Wheaton, 174;) Crabtree v. Bramble, (3 Atkyns, 675 ;) Fonblanque, (by Lau- satt,) 320, note v ; Worthington on Wills, 115. The case of Hart- man's Estate, (4 Rawle, 39,) cited on the other side, confirms the position, since the shane of the son who purchase at the execu- tor's sale was held to come to him directly under the will. Mr. Wharton, in reply, 1. All the cases cited to show that the devise to Dr. Currie was of a life estate only, are cases of complete wills, where the testator had expressed all he meant to say. As to intention, the testator in this case had provided for his Scottish relations, and probably meant to give the same estate in the house No. 65, as he had given in No. *63. The cases cited by Judge r*9f-i-i Kennedy in 4 Rawle, 70, come very near this. 2. The will of George Craig does not mention the object of the sale of his real estate. The directions are general and positive ; and he seems to take it for granted that the sale would be made. If his object had been merely to prevent an escheat, he would have directed a sale in the event of the death of his son under age ; not in every event as he has done. The cases relative to the failure of an object of sale are therefore not applicable. They are all cases of a power of sale for a particular object as the payment of debts ; and the Courts have said, that if the object fails, the heir shall be considered as in from the beginning, because he is entitled to every interest not disposed of. Here, however, all the interest in the land is disposed of, from him. There can be no resulting trust for him, when the whole benefi- cial interest is given to him in the shape of personal estate. 261 SUPREME COURT [Dec. Term, (Burro. Sim.) Then it is impossible to consider this a mere naked power, consist- ently with the current of authorities. Zebach v. Smith, (3 Binn. 72 ;) Llmjd \ Taylor, (1 Yeates, 422 ;) Toller on Executors, 412, 413. The direction that the houses shall be rented, is sufficient to distinguish this case from those which have been cited on the other side. In Carpenter v. Collins, (Yelverton, 73,) there was no direction or authority to sell ; and the Court seems to have been divided on the question where the executors took the legal estate. In Lancaster v. Thornton, Roper v. Radcliff, and other cases, there was a mere authority to sell, without any intermedi- ate control over the estate. Roper v. Radcliff is besides entitled to little respect from the peculiar circumstances under which it was decided ; and it never has had much weight; 3 Wheaton, 590. The passage cited from Sugden, 393, is to be taken with refer- ence to the mere naked power of Avhich he had been treating : as appears clearly from the cases cited by him. The opinion of the court was delivered by ROGERS, J., who after stating the facts and the principal clauses in the wills of George Craig and Archibald Cummings Craig, pro- ceeded thus It is contended, 1st, that by the will of George Craig, the house and lot devised to Dr. Currie, which is the subject of the eject- ment, was converted into personal property. 2. That whether personal or real, Doctor Currie took an abso- lute interest in the estate. 3. That if the real estate was, by the will of George Craig, converted into personalty, yet Archibald Cummings Craig elected to take it as real estate after he attained full age : that as such, it was a new acquisition in his hands, and descended to the heirs, ex parte paterna as well as materna. r*9R91 * Under the three questions as above stated, it is be- -" lieved, that all the points which have been so ably and elaborately discussed at the bar, may be considered. There are certain principles which enter into the solution of the first proposition, that do not, at this day, admit of dispute. Thus equity considers lands directed in wills or other instruments to be sold and converted into money, as money ; and money directed to be employed in the purchase of land, as land. The doctrine of conversion, as it is called, is founded on the equity maxim, that what is properly and sufficiently directed to be done, is in equity, considered as done. By virtue of it, one may im- press upon his money the character of land, and upon his land, that of money, in so effectual a manner, that the property will thereafter, in a Court of Chancery, be treated as of the descrip- tion into which it is directed to be changed. The question of 1835.] OF PENNSYLVANIA. 262 (Burr t>. Sim.) conversion is determined according to the intention of the testa- tor, which if it be not expressly mentioned, must of course be derived from the general effect of the will. The general intention of George Craig to convert his real estate into money is, we think, very plain. If we are at liberty to speculate as to the reasons which governed him in the disposition of his property, it would seem to have arisen from an impression that money would be better for his son than land, an impression probably derived from the difficulty and losses he had experienced in the management of his real estate. The testator has blended his real and personal property into one common fund, and has throughout spoken of it and treated it as money, and as such, has directed it, in express terms, to be paid over to his son, when he arrived at the age of twenty-one years. It is said, that if the purposes of the will be specific, as to pay the testator's debts, legacies, or other charges, the property beyond what is sufficient to satisfy the same, will be held to re- main in its original estate ; and if they should wholly or par- tially fail, the property will be regarded, as if no conversion or only a partial conversion thereof had been made. The heir-at- law has a resulting trust in such land, so far as it is of value, after the debts and legacies are paid ; and he may come into a Court of Equity, and restrain the trustee from selling more than is necessary to pay the the debts and legacies ; or he may offer to pay them himself, and pray to have a conveyance of the part of the land not sold in the first case, and the whole in the latter, which property will, in either case, be land and not money. This is undoubtedly true, but the counsel have failed in pointing out such specific purposes in the will. The payment of debts and legacies was not the moving cause, for they might have been paid out of the personal estate, which is the primary fund for that pur- pose ; nor is there any grounds to believe, that the object he designed to effect, was to devise a mode of providing for his alien "relatives, who resided in Scotland, as this might have r*o(?o-i been done equally well in other ways. But, even if these were some of the reasons which influenced him, there is no ground for supposing, that they were the only, or the principal ones. By the will he gives his property to his son, when he attains the age of twenty-one years, and directs the money aris- ing from the sale of the real estate, as well as the personal, to be paid over to the guardians for his benefit during his minority, and the money, when he attains age, to be paid to himself by his guardians. Even, in the case of resulting trusts for the benefit of the heir-at-law, it is settled, that if the intent of the testator appears to have been to stamp upon the proceeds of the land directed to be sold, the quality of personalty, not only to subserve 263 SUPREME COURT [Dec. Term, (Burr . Sim.) the particular purposes of the will, but to all intents, the claim of the heir-at-law to a resulting trust is defeated and the estate is to be considered to be personal. Craiq v. Leslie, (3 Wheat. 583 ;) Yates v. Compton, (2 P. Wills. 308.)* This case comes within another principle. Where the property devised is real, and directed to be divided for the general pur- poses of the will, as for instance, to form with the personalty a common fund, for all the purposes of the will, although it should happen, that some of them fail, it will be considered an absolute conversion. The new character is definitively and imperatively fixed upon the property, or in more technical words, it is said to be converted out and out. But, whether the property be personal or real, it is said Doctor Currie took the whole interest. If this be true, it defeats the plaintiffs title. The observations which have been already make, might seem to dispense with any opinion on the construction of the will, on the supposition, that the house and lot was real property, but, although this may be so, yet on that point we think it right to express an opinion. This point arises on the clause of the will of Archibald Cummings Craig : "Further, I wish to give unto Doctor W T ilm. Curry, of the Citty of Philada. one other three story house in Arch-!3tt., No. 65." It is contended that that there are no words of limitation in this clause, which will carry a fee ; still it is said, that such intention may be collected from the whole will. In aid of this part of the case the counsel wish the Court to supply certain words in the introductory part of the will, and in the devising clause. Words may be transposed, supplied, and changed in accordance with the context. But this cannot be done on conjecture ; there must be something in the will, from which there may be a reasonable implication, that by the con- struction you carry into effect the testator's intent. (Pow. D. 371, in note). We are requested to supply the words declarative of intention to dispose of all his estate. But, even if we felt our- F*2fi41 8e ^ ves at liberty to do so, *I do not see how this would J help their case ; for although the introduction of a will declaring that a man means to make a disposition of all his worldly estate or worldly goods, is a strong circumstance con- nected with other words, to explain the testator's intention of enlarging a particular estate, or of passing a fee, when he has used no words of limitation, it will not do alone. Ferris and Wife v. Smith $ al. (17 Johns. Rep., 221 ;) Lovcacres v. Blight, (Cowp. 356.) *9 Watts & Sergeant, 56 ; 2 Jones, 72; 3 Harris, 477 ; 6 Id. 107 ; 1 P. F. Smith, 512. 1835.] OF PENNSYLVANIA. 264 (Burr v. Sim.) We are desired however to add words of limitation to the de- vising clause, but for this we perceive no warrant in the will. It is impossible for us to tell, if lie had carried out his intention fur- ther, what disposition he would have made of the fee. He might have limited it in tail, or have given the remainder or reversion to some person, other than the devisee.* A witness, Henry Dis- brow, says, that he asked the deceased as to the further dispo- sition of his estate, to which he replied, that as to the bequests already set down, he had made up his mind upon them, for some time past, but as to further bequests he had not made up his mind, and must take some further time to think upon the subject ; upon which the deponent left the room for some time, and upon his re- turn found the deceased, as he thought, incapable of proceeding any further in the business. It is again said, the word, further, is to be used in connection with the preceding clause, in which a fee is given to the devisee therein named in apt words. But the defendant cannot derive any benefit from this source, because it is an entirely distinct sen- tence from the preceding. It needs no reference to it to give it meaning and effect ; it is perfectly intelligible, standing by itself ; and because the devises are to different persons. The terms, ' item,' ' further,' ' moreover,' are commonly used in the beginning of a new devise or bequest, without indicating any particular in- tention in the disposition of the property. (4 Rawle, 66.) The cases where this word, or words of similar import have enlarged the estate into a fee, are such as in Neide v. Neide, (4 Rawle, 75,) which was this : testator devised as follows, Principally and first of all, I give and bequeath to my eldest son, J. N. my late purchase from E. C., as also four acres of woodland in a cor- ner, &c. The land purchased from E. C. was purchased in fee simple, and it was held, that a fee passed to the devisee, both in the land purchased from E. C. and in the four acres of woodland. This Court were of opinion that the words my late purchase, in- dicated an intention to give a fee ; that there was a necessary connection betweed the two pieces of property ; that in fact, the latter would be entirely inoperative without reference to the for- mer, and that as it was to the same person, it carried a fee in the four acres of woodland. Taking then, this to be the case of a sale and conversion of land into money, according to the principles before stated, it follows that it remains so, unless there has been an election to take it as land.f Land once impressed with the character of money, must remain so * impressed, until some person r*op . Duncan.) goods were the property of A., at the time of the alleged trespass, and that they (the defendants,) took them under a judgment and execution against A. 2. Where such matter is pleaded specially, the court will strike off the special picas, although they allege that the plaintiff was in possession of the goods by a bailment from A., for safe keeping, or by a fraudulent conveyance from him. 3. Qittre, whether an averment of a judgment for 86000, is supported by a record showing a judgment entered by the prothonotary, in pursuance of the Act of 1806, by virtue of a warrant of attorney accompanying a bond in the penal sum of $12.000, conditioned for the payment of"$6000 with interest. THIS was an action of trespass brought by John M'Bride against Benjamin Duncan, Esq., High Sheriff of the City and County of Philadelphia, James D. Crozier, David Lewis, jr., Joseph Harper, and James Saunders, for taking and carrying away certain goods and chattels, (being the machinery of a Cot- ton Mill,) alleged to be the property of the plaintiff. The defendants first pleaded "not guilty, with leave to give the special matter in evidence," but afterwards obtained a rule to show cause why the general issue should not be withdrawn, and special pleas filed in its stead. This rule was made absolute at the March Term, 1835. They then filed six special pleas, setting forth, in substance : 1. That one Thomas Ireland, at the December Term, 1832, of the District Court for the City and County of Philadelphia, ob- tained a judgment against one William Linn, for $226 50, with costs, and sued out of the said Court a writ of fieri facias, directed to the sheriff of the said county, commanding him to cause the said debt and costs to be levied of the goods and chattels of the said Linn; which writ was delivered to the said sheriff: and the said defendants averred that the goods and chattels mentioned in the declaration were the property of the said Linn, (but that the said plaintiff was in possession of the said goods and chattels by color of a certain bailment made by the said Linn to the said plaintiff, for the safe keeping thereof ): and that the said sheriff, did in obedience to the said writ, and by virtue thereof, seize and sell the said goods and chattels, &c. 2. That one John B. Newman, at the March Term, 1833, of the said District Court, obtained a judgment against the said f*2701 William *Linn, for 5,904 40, with costs, &c. and sued out a fieri facias. &c., with the like averments. 3. That the said James G. Crozier at the March Term, 1833, of the said District Court, obtained a judgment against the said William Linn, for $859 81, with costs, &c., and sued out a fieri /dan, &c., with the like averments. 4. That the said David Lewis, jr., at the December Term, 1832, 1835.] OF PENNSYLVANIA. 270 (M 'Bride v. Duncan.) of the said District Court, obtained a judgment againt the said William Linn, for $6000, with costs, c., and sued out & fieri facias, &c., with the like averments. 5. That the property in the said goods and chattels, at the time of the taking, &c., was in the said William Linn, and that the said Linn was then and there indebted to various persons, altogether, in a large sum of money, viz., the sum of $20,000, and, being so indebted, did before the commission of the supposed trespass, &c., assign and convey the said goods and chattels (with design to defraud his said creditors and to defeat the executions which they might sue out,) to the said plaintiff, who was then and there privy to the design and purpose. And the defendants averred that the said David Lewis, jr., at the December Term, 1832, of the said District Court, by the consideration and judg- ment of the same Court, recovered against the said William Linn, as well a certain debt of $6000, as also six dollars and twelve cents for his damages, for the detention of the same, &c., and that he sued out a certain writ of fieri facias, &c., under and by virtue of which the said sheriff sold the said goods and chattels, &c. 6. That the property in the said goods and chattels, at the time of the taking, &c., was in the said William Linn, and that the said Linn was indebted to the said David Lewis, jr., in the sum of $14,000, and being so indebted, did before the commission of the supposed trespass, &c., make an assignment and convey- ance of the said goods and chattels, (with design to defraud the said David Lewis, jr., and to defeat any execution which he might sue out,) to the said plaintiff, who was privy to the design and purpose. And the defendants averred that the said David Lewis, jr., at the December Term, 1832, of the said District Court, by the consideration and judgment of the said Court, recovered against the said Wm. Linn, as well a certain debt of $6000, as also six dollars and twelve cents, for his damages, &c., and that he sued out a certain writ of fieri facias, &c., under and by virtue of which the said sheriff sold the goods and chattels, &c. To the first four of these pleas, the plaintiff put in replication concluding to the country. To the 5th and 6th he replied nul tiel record. To the replication to the first plea, the defendants demurred specially, setting fort the following causes of demurrer, viz.: * " That the said plaintiff hath in and by his said repli- r* 971-1 cation, tendered and offered to put several and distinct matters in issue that is to say, that the goods in declaration mentioned, were the good of William Linn: that they were seized and taken in execution by the said Benjamin as sheriff, and in obedience to the exigency of the writ in the said plea mentioned, and that the said James G., David, Joseph, and James, 271 SUPREME COURT [Dec. Term, (M 'Bride v. Duncan.) did aid and assist therein, and that they acted therein by the command of the said Benjamin, and that the said goods were advertised and sold ; and for that the said plaintiff should and ought in and hy his said replication to have tendered and offered to put in issue one single fact only, to be tried by a jury of the country, and to have relied on the same ; and for that in the manner the said replication is above pleaded, no certain or single issue can be joined in the same ; and for that the said replication is double, multifarious, and not issuable ; and for that the said replication traverses the virtute cujus or matter of law, viz. : that the said Benjamin did in his capacity as sheriff, seize, take, adver- tise and sell the goods in said declaration mentioned, and that he did the same in obedience to the exigency of said writ, in the said plea mentioned, and that he did the same to make the money, in the said writ mentioned, and that he did the same according to the command of the said writ ; and for that the said replication although containing affirmative matter, viz. : that the said goods were the property of the plaintiff, yet concludes to the country ; , and for that although the said plaintiff has in the said replication adopted in form a special traverse with an introduction and abseque hoc, yet he concludes to the country ; and for that there is duplicity in the introduction of the said replication, viz. : the said introduction contains the affirmation that said goods were the property of the said plaintiff, and also contains the averment that the defendants of their own wrong committed the trespass in the declaration mentioned ; and for that the said replication, is also in various other respects defective, argumentative, insufficient and informal." To the replication to the 2d, 3d and 4th pleas, they rejoined the similiter. The cause now coming up, on the issue nul tiel record and the demurrer to the replication to the first plea, the questions were argued by Mr. J. A. Phillips and Mr. W. M. Meredith for the plaintiff, and by Mr. F. W. Hubbell for the defendant. 1. On the issue of nul tiel record, Mr. Ifubbell produced the record of a judgment in the District Court for the City and County of Philadelphia, confessed by virtue of a warrant of Attorney accompanying a bond executed by William Linn to David Lewis, jun., in the penal sum of $12,000, with condition for the payment of $6,000 with interest. The judgment was entered in the D. S. B. docket by the Prothonotary of the Dis- trict Court, in pursuance of the act of 1806. F*9721 *^ n 8u PP or * f the plea averring the record, it was said that the act of Assembly required the Prothonotary to enter judgment "for the amount which from the face of the 1835.] OF PENNSYLVANIA. 272 (M 'Bride v. Duncan.) instrument may appear to be due." Here the amount due was $6000,, and that is to be taken to be the amount of the judgment. [ROGERS, J. Do you suppose that the Legislature intended that the Prothonotary should calculate the interest due ? Suppose pay- ments endorsed on the bond is he to go into them? Surely there is no other method than that which appears to have been pursued in this and other cases, viz : to enter judgment for the penalty.] Supposing the judgment to be properly for $12,000, it is certainly sufficient to sustain a plea of a judgment for $6,000. The record shows enough to justify. This judgment is pleaded merely as an. inducement. The substance of the plea is the levying a fi.fa. Wait v. Briggs, (1 Ld. Rayd. 35 ;) Purcell v. M'Namara, (9 East. 157 ;) Phillips v. Eves, (1 Esp. 355 ;) Phillips v. Shaw, (4 B. & A. 435 ; 6 E. C. L. R. 477 ;) Stoddart v. Palmer, (3 B. & 0. 2; 10 E. C. L. R. 4.) On the other side, it was contended that the judgment produced varied from that pleaded. On the face of the docket it was for $12,000, and so it must be under the act of Assembly. Suppose a bond with collateral condition, or for money not due. If judg- ment were entered only for the sum mentioned in the condition, there would be no lien for the arrears of interest. Helvete v. Rapp, (7 Serg. & R. 306 ;) Commonwealth v. Conard,(\ Rawle, 253.) It is said this is a mere matter of inducement. If the sheriff had justified alone, he might have rested on the fi.fa. ; but by joining with the other parties, he is placed under the same rule. Ackworth v. Kempe, (Douglas, 40.) 2. In support of the 'demurrer, the following cases were cited: G-renville v. The College of Physicians, (12 Mod. 386 S. C. 3 Salk. 355 ; 1 Ld. Rayd. 454 ;) Crowther v. Ramsbottom, (7 T. R. 654;) Lytle v. Lee, (5 Johns. Rep. 112 ;) Plum v. M. Orea, (12 Johns. Rep. 491 ;) Stephens on Pleading, 197, 202; Demick v. Chapman, (11 Johns. Rep. 131 ;) Pulcher v. Sprague, (2 Johns. Rep. 462 ;) 1st Wms. Saunders, 23. In support of the replication were cited, Stephens, 274 ; Robin- sonv . Bailey, (1 Burr. 316 ;) O'Brien v. Saxon, (2 B. & C. 908, 9 E. C. L. R. 268 ;) Strong v. Smith, (3 Caines Rep. 160 ;) Wood v. Holland, (Styles 344 ;) Brake v. Kerr, (Carthew, 125;) 1 Chitty, 625 ;* Phillips v. ffolkett, (2 B. & A. 220; Chauncey v.Weir, 12 Mod. 580;) Crogaie's case, (8 Rep. 66;) 2 Blackstone's Rep. 1028; Cro. Elix. 539 ; 1 Bos. & Pull. 76; Rayner v. Poynter, (Willes, 410 ;) Hobb. 244 ; Earl of Suffolk's case, (13 Hen. 7, 12, 13 ;) 3 Wilson's Rep. 234 ; s. c. 2 Blackst. Rep. 776; 2 Wms. Saunders, 295, (a) *note; 1 Ld. Rayd. 412; 1 Chitty, 654; 1 Saunders, 22; 273 SUPREME COURT [Dec. Term, (M 'Bride t>. Duncan.) Lambert v. Struther, (Willis, 218 ;) Fearon v. Pearson, (1 Saunders, 103, (a); Hedije* v. Sandon, (2 Term. Rep. 439;) Smith v. Dovers, (Douglas, 428 ;) 1 Salk. 4 pi. 10 ; Smith v. J/j7/#, (1 Terra Rep. 475.) It was contended also, that the matter of the special pleas was admissible under the general issue ; and to this point were cited Luke v. Biller, (1 Ld. Rayd. 733;) Martin v. Parter, (2 Blackst. Rep. 701;) Aekworth v. Kempe, (1 Douglas, 40;) Saunderson v. Baker, (3 Wilson, 309, s. c. 2 Blackst. Rep. 802.) The opinion of the Court was delivered by SERGEANT, J. It has been contended that the matter of these pleas was not admissible under the general issue. The substance of the pleas is, that the plaintiff derives title to the goods from Wm. Linn, that they were the property of Linn at the time of the alleged trespass, and that the defendants took them under a judgment and execution against Linn. The whole matter of the defence might be given in evidence under the general issue ; for that puts in issue the question of property, and if the facts averred in the pleas be true, the goods were not the property of the plaintiff. Had the goods been seized by virtue of an execution against the plaintiff, the case would be different. In such case the defendant admits the property to have been the plaintiffs, but avoids his right by virtue of the execution, and this can only be taken advantage of by a special plea. But where the execution is against a third person, not the plaintiff, there is no confession and avoidance ; there is a denial 1 of the property which may be by the general issue. The rule on the subject is thus laid down in Roscoe's Dig. of Evi- dence, 377. In trespass, to personal property, under the gene- ral issue, the defendant may show that the goods in question were not the property of the plaintiff. Thus in an action against the sheriff for taking the plaintiff's goods, the defendant may show, under the general issue, that the plaintiff derives title to the goods under a bill of sale fraudulent as against creditors, and that the defendant took them under a judgment and execu- tion against the real owners. Martin v. Codyer, W. Bl. 701 ; Lake v. RiUerSj 1 Ld. Ray. 733. But when the sheriff justifies, taking the plaintiff's own goods, under a writ of execution, such justification should be specially pleaded, for the property of the goods continues in the plaintiff till execution executed; and the sheriff cannot show that he took them when they were not the plaintiff's goods. So in 2 Phill. Evid, 221, it is said "one of the most common defences to this action against the sheriff for taking goods in execution is, that the third person against whom the execution issued, had fraudulently assigned his 1835.] OF PENNSYLVANIA. 273 (M'Bride . Duncan.) effects to the plaintiff for the purpose of defeating the execution of a creditor ; and this defence, it is scarcely necessary to observe, may be proved under the general * issue." In the pres- r^oY^-i ent case the defence is precisely of this character, and is therefore available on the general issue of not guilty ; and the special pleas amount in effect to the general issue, and no more. Still, though the general rule is that a defendant is not per- mitted to put in special pleas which amount to the general issue, and the Court will strike them off, yet there are exceptions. For in some cases, by the English rules, the defendant may take his choice and frame his plea so as to escape being liable to the ob- jection. This is effected by the device of giving color, as in these pleas is done by alleging that the plaintiff was in possession of the goods by a bailment from Linn for safekeeping, and by fraudulent conveyances from him. And where such course preserves to the defendant any serious advantage he might otherwise lose, he would, strictly speaking, be entitled to take his choice, and resort to the circuity of special pleading instead of this plain path of not guilty^ No important advantage can attend the defendants special pleading in the case before us, while it leads to delay and burthens the records with volumes which serve little or no pur- puse, but the exercise of ingenuity and learning. It is said, (Hob. 127,) that it is a good reason for pressing the general issue, instead of special pleading, that " it makes long records where there is no cause." In Pennsylvania this remark applies Avith peculiar force.. The genius of our jurisprudence is not favorable to the practice of special pleading, and the cases are rare in which the time and attention of the Court has been occu- pied by disputes upon it. There is no class of the profession employed peculiarly in its study, nor would our trivial attor- ney's fee compensate for the labor of it. Our system has been to try causes on the general issue, Avith the notice of the special matter : to that system our laws and practice conform : and justice, it is believed, is as well administered as where another system prevails. It is remarkable that in some of the actions which the Courts have invented and fostered as best calculated for the trial of right, such as ejectment and trover, there is no special pleading ; and in assumpsit it is not required. It is not meant by these remarks to intimate that there are not cases on which special pleas are necessary and proper, and in which the law of the case cannot be administered without them : or that an intimate knowledge of that branch of the law is not indispen- sable to the advocate. But where justice may be fully attained without it ; where special pleading involves the cause in prolixity and delay, without conferring any real benefit on him who re- 274 SUPREME COURT [Dec. Term, (M '"Williams . Hopkins.) sorts to it, the Court ought in the exercise of their legal discretion, and for the prevention of the evils that would result, to enforce the rule, that the defendant shall not plead specially what amounts to the general issue. Special pleas struck off. Cited by Counsel, 6 Wharton, 58 ; 3 Wright, 56. Cited by the Court, 5 Wharton, 359. [*275] [*PHILADELI%IA, FEBRUARY 6, 1836.] M'WILLIAMS against HOPKINS, Esq. A judgment for costs obtained against an administrator plaintiff in another Court, and assigned by the defendant there to A., cannot be set ott" against a judgment for damages obtained by such administrator against A. in this Court. THIS was an action on the case brought by Mary M'Williams, administratrix, &c. of James M'Williams, deceased, against Joseph R. Hopkins, Esq. At a court of Nisi Prius, held at Philadel- phia on the 9th of December, 1835, a verdict was rendered for the plaintiff, with $661 damages ; upon which judgment was entered. Mr. Randall for the defendant, having obtained a rule to show cause why the defendant should riot be allowed to set off against this judgment, a certain judgment for costs obtained against the plaintiff in a suit brought by her as administratrix, in the Dis- trict Court, and assigned to the present defendant ; the rule came on for argument this day. It appeared that Mrs. M'Williams, as administrator of Jame& M'Williams, brought an action in the District Court for the City and County of Philadelphia, to June Term, 1824, against John Swift, Esq., which was referred to arbitrators, and an award made for the plaintiff. The defendant appealed from the award, and upon the appeal paid costs amounting to $102, independently of the fees of witnesses. On the trial of the cause a verdict was obtained for the defend- ant ; and judgment being entered thereon, he became entitled to recover back the costs he had paid. This judgment was assigned to the defendant, Hopkins, on the 2d of January, 1836. Mr. Randall now contended that the set-off was admissible. 1835.] OF PENNSYLVANIA. 275 (M 'Williams v. Hopkins.) He cited Montague on Set-off, 6, 11 ; Jacoby v. Gruier, (6 Serg. & R. 448.) Mr. Earle, contra. The judgment is between different par- ties, and in a different Court. A judgment for costs is not de bonis testatoris. Besides, the judgment is several years old, and cannot be enforced without a scire facias. Mr. Randall in reply. It never has been considered necessary to issue a scire facias where there is a judgment for costs merely, The practice is to issue execution at any time without a scire facias. In Muntorf v. Muntorf, (2 Rawle, 180,) it was de- cided that an executor plaintiff is bound to pay costs to the de- fendant in case of ndhsuit, or * verdict for the defendant. r*o7fn Here there is no evidence of the insolvency of M'Wil- "- Hams' estate. PER CURIAM. A set-off of the judgment for costs assigned to the defendant, which has been recovered in another action, can- not be allowed. These costs, though incurred in an action by the plaintiff as administratrix, are her proper debt, and the judgment for them is de bonis propriis.* It is true they may be allowed to her out of the estate in the settlement of her accounts ; but that is not an inevitable consequence ; and to allow them here by de- falcation of judgments, would be an usurpation of the power of the Orphans' Court. The rule must be Discharged. Cited by the Court, 10 Wright, 235. Explained, 11 Harris, 472. See also, 4 Watts, 18 ; 7 Id. 464 ; 8 Id. 75. [PHILADELPHIA, FEBRUARY 6, 1836. ] SAME against SAME. 1. On the taxation of costs against a Defendant in an action at law, the costs of a Bill to perpetuate testimony were disallowed. 2. Members of the bar are not entitled to witness fees for attendance in a Court in which they actually practice. 3. To entitle a party to the costs of his witnesses and of the service of sub- poenas upon them, it is not necessary that their names should have been inserted in the subpoenas by the Prothonotary, before delivering them to the party. 4. It is not necessary that witnesses should attend before the Prothonotary *8 Watts & Sergeant, 280 ; 7 Barr, 136 ; 1 Harris, 531 ; 7 P. F. Smith, 114. 276 SUPREME COURT [Dec. Term, (M' Williams t>. Hopkins.) on the taxation of costs, to prove their attendance on the trial of the cause. The fact may be proved aliunde. 5. Witnesses who attended before the Prothonotary on the taxation of costs to prove their attendance at the trial, held not to be entitled to fees for such attendance before the Prothonotary. THE costs of the plaintiff in this case having been taxed by the Prothonotary, an appeal was taken from his decision. The ma- terial exceptions were as follows : 1. To the allowance of the costs of a Bill to perpetuate testi- mony. 2. To the allowance of " witness fees " to members of the bar practising in the Supreme Court. 3. To the allowance of " witness fees " for persons whose names were placed in the subpoenas after they had issued, and without the knowledge of the prothonotary ; such persons not having been examined on the trial. f*2771 * 4 ' '^ ^ e a ^ owance f f ees f r serving subpoenas on persons whose names were so placed on subpoenas. 5. To the allowance of " witness fees" for persons who resided in the City of Philadelphia, and who did not attend at the taxa- tion. 6. To the allowance of fees to witnesses for attending before the Prothonotary on the taxation of costs. Mr. Randall for the Defendant : 1. The costs of a Bill to perpetuate testimony cannot be charged against this defendant. 1 Maddock's Chan. 195. Act of 28 March, 1814, 26. 2. A person who is attending Court as a juror, is not entitled to fees as a witness. Nor is a Justice of the Peace when officially attending, 6 Binn. 397. The rule must be the same with respect to a member of the bar practising in the Court in which he is called upon to testify. 3. 4. In this case the names of several persons were intro- duced into the subpoenas by the plaintiff's attorney, after they were taken out of the office. This is a fraud upon the Prothono- tary ; and the plaintiff ought not to recover any costs for the -wit- nesses in such cases, or for the service of the subpojnas upon them, [HUSTON, J. It is the constant practice to add names ; and the Prothonotary cannot be injured if the legal fee is paid for every witness. ROGERS, J. The practice prevails throughout the State. Blank subpoenas are frequently taken out. GIBSON, C. J. There can be no doubt of the propriety of these charges.] 5. If a witness does not attend the taxation of costs, after 1835.] OF PENNSYLVANIA. 277 (M 'Williams t). Hopkins.) notice, the presumption is that he relinquishes his fees. A party ought not to be allowed to prove the attendance of witnesses ; since he receives their costs in the first instance. [HUSTON, J. It is certainly not necessary to produce the witnesses. If their attendance is proved by any competent person, it is sufficient. Even if the witness should be unable to state the number of days he attended, I think the fact might be proved aliunde.~\ 6. The act of Assembly which gives fees to witnesses, speaks of "each day's attendance in Court." I understand that it is the practice in the District Court not to allow for attendance on taxation. *Mr. Earle, contra, was requested by the Court, to confine himself to the 1st, 2d, and 6th exceptions. [*278] 1. The record shows that the testimony was taken, to be used in this case. The defenant came in, and made himself a party. [HUSTON, J. It is settled in England, that a demurrer will lie to a bill of this kind, if there is no impediment to the plaintiff trying his right at law, unless the witnesses are old and infirm. There was a case of Blaine v. Chambers, before the late Judge Smith on the Circuit, in which the rule was declared to be the same here; and his opinion was afterwards confirmed by the whole Court.] 2. There is no sound reason for' excluding members of the bar from fees as witnesses. They are not required to be in attend- ance upon the Court, excepting when their causes are on trial ; and the fiction of their perpetual presence ought not to be allowed to operate against them. 6. The witnesses attended the taxation in consequence of notice from the opposite party. This may be called "attendance in Court" within the act of Assembly ; since the Prothonotary is an office of the Court, and supposed to be in their presence. PER CURIAM. The costs of the bill to perpetuate testimony must be struck out, as not having been incurred in the cause, but in a distinct proceeding. The plaintiff may yet have the benefit of the evidence against some one else, as amply as she has had it, against the defendant ; and it is unfair that he alone should bear the expense of it. The charge for the attendance, as witnesses, of gentlemen of the profession, who are in contem- plation of law, always present in courts, where they actually practice, must also go out. So, also, the charge for the attend- ance of witnesses before the Prothonotary, at the time of taxa- tion. The practice is to take the affidavit of the party at the foot of the bill, f or prima facie evidence of its accuracy; and the SUPREME COURT. [Dec. Term, (Drew c. The Commonwealth.) witnesses therefore need not have been produced. The rest of the Bill is allowed. Taxation confirmed, subject to the preceding exceptions. SERGEANT, J, having been of counsel with one of the parties in the case of Jf* Willians v, Swift, did not sit in this case. See 3 Wharton, [*279] ['PHILADELPHIA, FEBRARY 6, 1836.] DREW against The COMMONWEALTH. IN ERROR. 1. The act of 23d April, 1829, entitled, "A further Supplement to an act entitled, 'An Act to reform the penal laws of the Commonwealth;'" does not repeal the llth section of the act of 25th of March, 1824, enti- tled, "An act to re-charter certain banks," which makes the forgery of a check on a bank, felony. 2. A sentence under the act of 23d April, 1829, to "separate or solitary confinement at labor," is good. 3. Where an indictment is good, and there is no error in the trial, but the sentence is defective, this Court will not send back the prisoner for a new trial, but will sentence him de now. IN the Mayor's Court for the City of Philadelphia, Charles Drew, Elijah Drew, and Elisha Drew were indicted, for that they the said Charles Drew, Elijah Drew and Elisha Drew, " on the 9th day of September, in the year of our Lord, 1833, at the city aforesaid, and within the jurisdiction of the said Court, with force and arms, feloniously did falsely make, forge, and counterfeit a certain check on The Philadelphia Bank, purporting to be drawn by Joseph G. Parke & Co. for the sum of $5520.26, to be pay- able to bearer, and to be dated the day and year aforesaid : the said The Philadelphia Bank then and there, being a bank within the Commonwealth of Pennsylvania, incorporated in pursuance of an act of the general assembly, which said false, forged, and counterfeit check partly written and partly printed, is in the words and figures following," setting out a copy of the check and concluding " with intent then and there to defraud the said The Philadelphia Bank, contrary to the form of the act of the gene- ral assembly in such case made and provided, and against the peace," &c. There was also a count for passing the said check, knowing it to be forged, with the like intent, and contrary to the form of the act of assembly, &c. 1835.] OF PENNSYLVANIA. 279 (Drew v. The Commonwealth.) The defendants were indicted in like manner for forging a check on the Farmers and Mechanics' Bank, purporting to be drawn by Jos. G. Parke & Co. for the sum of $3500, with the like intent, &c. And, in a third indictment, for forging a check on the Commercial Bank of Pennsylvania, purporting to be drawn by James Musgrave, for $4800 63, with the like in- tent, &c. Charles Drew and Elisha Drew were severally acquitted: Elijah Drew was convicted on all the indictments, and was sen- tenced on the first indictment " to pay a fine of $5 to the Com- monwealth, to undergo an imprisonment by separate or solitary confinement at *labor^ in the State Penitentiary for the r*OQnn Eastern District for the term of four years, and that he L be fed, clothed and otherwise treated as the law directs, pay the costs of prosecution," &c. On the second indictment he was sentenced to- the like fine and imprisonment in like manner for three years. On the third indictment he received the like sentence. A writ of error having been allowed, the record was removed to this Court, and the following errors were assigned: " 1st, That the defendant had been indicted, tried, and con- victed under the llth section of the act of assembly passed on the 25th day of March, 1824, entitled "An act to recharter certain banks" (Pamphlet laws, page 73 ;) and has been sen- tenced under the seventh branch of the fourth section of the act of assembly of 23d April, 1829, entitled, "A further Supplement to an Act, entitled, 'An Act to reform the penal laws of this Commonwealth,'" (Pamphlet laws, page 343.) " 2d, Because the llth section of the act of 25th March, 1824, was repealed by the act of April 23d, 1829. " 3d, Because the defendant has been indicted, tried, and con- victed of a felony, when the offence is by law only a misde- meanor. " 4th, Because by the common law, the crime of forgery, of which the defendant has been convicted, is only a misdemeanor, and unless made a felony by statute, the defendant cannot be in- dicted and convicued of a felony, and there is no act of assembly in force which makes this offence a felony. " 5th, Because the Court below erred in their judgment, in sen- tencing the defendant below to pay a fine of five dollars, when the punishment by law is " solitary confinement at labor for a period not less than one year, nor more than seven years." "6th, Because the Court below erred in their judgment, in sentencing the defendants to pay the costs of prosecution. " 7th, Because the Court below erred in their judgment, in sentencing the defendant " to separate or solitary confinement at VOL. i. 19. 280 SUPREME COURT [Dec. Term, (Drew v. The Commonwealth.) labor" in the alternative, when by law they only had power to sentence him " to be imprisoned in solitary confinement at labor." Mr. Phillips, for the plaintiff in error, contended, 1st, That the conviction was wrong. The act of 25th March, 1824, 11, 12, makes it a felony to forge a check on a bank. That act is to be considered as abrogated by the act of 23d April, 1829, the 10th section of which repeals all inconsistent laws. The act of 1829 does not call the offence a felony. It must, therefore, remain as it was in common law, merely a misdemeanor; The King v. Ward, (2 Ld. Raymond, 1461;) Commonwealth v. Searle, (2 Binn. 380.) To show that an affirmative act repeals all preceding acts upon the same subject, were cited 6 Bac. Abr. 372, (Title Statutes, D.;) 4 Inst. 43; Foster' a Case, (11 Rep. r*oon 61 ffarbat v. Fox, (1 Shower, 520;) *1 Ld. Ray- mond, 161 ; 4 Burr. Rep. 2C26. [KENNEDY, J. Does not the concluding section of the ret of 1829 save all previous descriptions and definitions of offences ?] 2d. There was an error in the sentence, first, in the fine of $5 which is not authorized by the act of 1829, and, secondly, in the alternative punishment "separate or solitary confinement at labor," &c. It is true that the act of 1829 directs that the pun- ishment shall be "separate or solitary confinement;" but it means that the Court shall direct one or the other, not leave it to the construction of the officers of the prison. There is an obvious distinction between separate and solitary confinement. [ROGERS, J. Suppose you were right in this idea, it would avail your client little, since we would have him brought up and sentence him aright.] That has not been the practice heretofore. This Court in several cases, in which they reversed the sentence, ordered the party back to be tried again. [ROGERS, J. We decided a short time ago, in a case from Luzerne county, that where the indict- ment was good, and the trial good, but the sentence defective, we would do, what the Court below would do, after a new conviction, sentence him de novo. The subject was fully considered and all the authorities cited.] The Court declined hearing The Attorney -General (7WeT) and Mr. '/. M. Read, who were to argue in support of the judg- ment and sentence. PER CURIA M. By the eleventh section of the act of 1824, the forging of a bank check such as this, is declared to be a felony punishable with fine and imprisonment at solitary labor for not less than one year nor more than ten years. How far has this been altered by the act of 1829 ? By the fourth section of that 1835.] OF PENNSYLVANIA. 281 (Coxe v. Tilghman.) act, it is declared that instead of the punishment theretofore pre- scribed, imprisonment at solitary labor for a period not less than one year, nor more than seven, shall be inflicted for the first offence, and the like imprisonment, not exceeding ten years, for the second. Did the question stand on this, it would be easy to show that the character and class of an offence is not altered by a modification of the punishment. But the sixth section de- clares, that " all definitions and descriptions of crimes ; all fines, forfeitures, penalties, and incapacities ;" the restitution of pro- perty or payment of the value ; and every other matter not par- ticularly mentioned ; shall remain as theretofore. Certainly the definition and description of a crime have respect to its essence and class, when it induces, as felony does, a civil disability, by incapacitating a party convict to be a witness. It is clear, there- fore, that it was not the intention of the legislature to reduce the type of the offence to a misdemeanor ; and it is needless to say that the fine is not abolished. Judgment affirmed. Cited by Counsel, 5 Barr, 65 ; 9 Harris, 529. Cited by the Court, 7 Barr, 375 ; 1 Casey, 22. [* PHILADELPHIA, FEBRUARY 6, 1836.] [*282] COXE and Others against TILGHMAN and Another. 1. In an action of covenant, amendments of the declaration assigning new breaches of the same instrument on which the original counts were founded, and alleging performance on the part of the plaintiff, in another mode than was alleged in the original counts, are admissible. 2. In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration was founded, an amend- loient making an alteration of the grounds of recovery on that instrument or contract, or of the modes in which the defendant has violated it, is admissible. Per SERGEANT, J. 3. In actions ex delicto, the rule is the same : The foundation of the com- plaint laid in the declaration must be adhered to ; although the mode of stating that complaint, may be varied by an amendment. Per SER- GEANT, J. Tins was an action of covenant brought in this Court by Charles S. Coxe, Francis S. Coxe, and Henry S. Coxe, execu- tors of the last will, &c., of Tench Coxe, deceased, against Ben- jamin Tilghman and Elizabeth Tilghman, executors of the last will, &c., of Edward Tilghman, deceased, upon an agreement under seal dated the 25th day of July, 180(3, between Tench 282 SUPREME COURT [De/:. Term, (Coxet. Tilghman.) Coxe and Edward Tilghman, by which the latter covenanted to purchase certain lands of the former. The declaration contained four counts. 1. The first count set forth that it was covenanted and agreed between the said Tench Coxe and Edward Tilghman, that in con- sideration of the covenants of the said E. T., the said T. C. would convey or cause to be conveyed to the said E. T., or to such per- son as he should appoint, the said T. C.'s right to certain lands in the State of Pennsylvania, amounting to 16,800 acres ; a cer- tain portion of which was within the boundaries or lines, and a certain other portion without the boundaries or lines of a certain selection of 45,000 acres of land, made by the said Edward Tilghman, Wm. Cramond, Adam Kuhn, and Joseph Thomas, out of a larger tract claimed by James Wilson deceased : that the said E. T. covenanted and agreed that he would designate before the first day of May, 1807, what quantity of the said 16,000 acres was not within the said boundaries and lines, and what was within them, and would also before that day pay to the said T. C. 25 cents for every acre of 2-3rds of such quantity of the said 16,800 acres, as he should show not to be within the said bound- aries and lines, and also pay 'the said T. C., 25 cents for every acre for 2-3rds of 12-45ths, and for every acre of 14-45ths, of such quantity of the same as he should show to be within the said boundaries and lines : Averment that though the said T. C. was always ready and willing to convey, &c., yet the said E. T. did f*9831 n t well and truly designate * on or before the said first J of May, 1807, what quantity was within and what was without the said boundaries, &c., and did not pay the said sum of 25 cents for every acre as aforesaid. 2. The second count set forth the covenant by T. C. to convey as before, and that the said E. T. covenanted to pay 25 cents per acre as in the first count : Averment, that the quantity of 5600 acres was within, and the like quantity without the said bounda- ries ; that the said T. C. was ready and willing to convey ; and breach as in the first count. 3. The third count set forth the covenant by T. C. as before ; that the said E. T. covenanted and agreed that as to l-3d of the said 16,800 acres, he would well and truly pay the said T. C. 25 cents for every acre thereof, together with interest from the 15th of August, 1793, so soon as he, the said E. T., could, after the 25th of July, 1806, legally ascertain whetller any part, and if any, how much of the said l-3d was taken away by elder surveys, other than those in which he the said E. T. was concerned : Averment, that no part of the said l-3d part was taken away by elder surveys, other than those in which the said E. T. was con- cerned : and that the said E. T. did afterwards, viz. on the 25th 1835.] OF PENNSYLVANIA. 283 (Coxe v. Tilghman.) of July, 1807, legally ascertain that no part of the said 16,800 acres, was taken away by elder surveys other than those in which the said E. T. was concerned : Breach, that the said E. T. did not pay the said 25 cents for every acre of the said l-3d, together with interest, &c., so soon as he could legally ascertain whether any part was taken away by elder surveys, &c. 4. The fourth count set forth the covenants by T. C. and E. T., as in the third count : Averment, that only 50 acres of the said l-3d part of the 16,800 acres, Avere taken away by elder surveys, other than those in which he the said E. T. was con- cerned; and that the E. T. afterwards, viz. on the 25th of July, 1807, legally ascertained the same: Breach that the said E. T. did not pay the said 25 cents for every acre of the said l-3d part, after the said 50 acres were taken away by elder sur- veys, &c. Two additional counts were afterwards filed. 5. The fifth count set forth the covenant by T. C., to convey 16,800 acres of land a certain part of which was supposed to be within and a certain part without the boundaries and lines afore- said, and that the said E. T. covenanted to pay 25 cents for every acre of 2-3ds of 12-45ths, and for every acre of 14-45ths of such quantity of the said 16,800 acres as should be within the boundaries and lines aforesaid : Averment, that the whole of the said 16,800 acres were within, and no part thereof without the said boundaries and lines: Breach, that the said E. T. did not pay the said 25 cents for every acre, &c. 6. The sixth count set forth the covenant by Coxe as in the fifth count, with some variations. * The defendants pleaded r*9841 1. Non estfactum. 2. That by the said agreement the said T. C. covenanted on or before the first of May, 1807, to designate what proportion of the 16,800 acres was within and what was without the said boundaries: Averment, that the said E. T. was willing, &c., to perform the covenants on his part, but the said T. C. did not des- ignate what proportion, &c. 3. That by the said agreement the said T. C. covenanted, that on or before the said first of May, 1807, he would furnish the said E. T. with the means of ascertaining what proportion of the said 16,800 acres, was within and what was without the said boundaries : Averment, that the said E. T. was willing, &c., if the said T. C. wolud furnish him with the means, &c. 4. To the second count, that a certain quantity, viz. 5,600 acres was not within the said boundaries, and that a certain quan- tity, viz. 5,600 acres was not without the said boundaries, &c. 5. To the third and fourth counts: That by the said agree- 284 SUPREME COURT [Dec. Term, (Coxe v. Tilghman.) ment the said T. C. covenanted (as soon as conveniently and legally might be,) to ascertain and give notice to the said E. T. how much of the said 16,800 acres was taken .away by elder sur- veys, other than those in which the said E. T. was concerned : Averment, that the said E. T. was willing, &c., to perform the covenants on his part, if the said T. C. would legally ascertain and give notice, &c. 6. To the third count : That the said E. T. did not and could not on the 25th of July, 1806, or at any other time, legally ascer- tain that no part of the said l-3d part of the 16,800 acres was taken away by elder surveys, other than those in which the said E. T. was concerned : concluding to the country. 7. To the third and fourth counts: That by the said agreement the said T. C. covenanted (as soon as conveniently and legally might he,) to furnish the said E. T. with the means of ascertain- ing how much of the said 16,800 acres was taken away by elder surveys, other than those in which the said E. T. was concerned : Averment that the said E. T. was willing, &c.. to perform the covenants on his part, if the said T. C. would furnish him with the means of ascertaining, &c. 8. To the fourth count: That the said E. T. did not and could not on the 25th of July, 1806, or at any other time legally ascertain that a small part of the said l-3d part of the said 16,800 acres, viz. 50 acres was taken away by elder surveys, other than those in which the said E. T. was concerned: conclud- ing to the country. 9. That before the execution of the said agreement, viz. on the 28th of March, A. D. 1801, the said T. C. by indenture of that date, granted and conveyed the said 16,800 acres of land, and all his title and interest in the same, to William Tilghman and others, and their heirs and assigns, upon certain trusts and condi- tions in the said indenture expressed, &c. r*28'i1 * ^' J >er f rmance 5 w i tn leave to give the special matters in evidence. 11. No assets. 12. Plene administraverunt prceter, go. and 13. Debts of a higher nature, &c. &c. To the 1st and 4th pleas the plaintiffs replied the similiter. To the 2d, 3d, 5th, 6th and 7th pleas, they demurred generally. To the 8th a special demurrer was filed, setting out for cause that the defendants have in the said plea offered to put in issue, a matter not properly issuable, that they have not in said plea denied, confessed, or averred the substantial matter in the breach of covenant in the fourth count alleged, and that the plea ought to have concluded with a verification and not to the country. To the 9th plea the plaintiffs replied that the agreement with the said E. Tilghman was made with the consent and apprpba- 1835.] OF PENNSYLVANIA. 285 (Coxe v. Tilghman. ) tion of the assignees of said T. C., which was well known to said E. T., and that all the right, title and interest of said assignees, have become vested in C. S. Coxe, one of the plaintiffs, who has always been readv and willing to convey to B. Tilghman, one of the defendants, in trust for the heirs, c., of the said Edward Tilghman. To the llth, 12th and 13th pleas, replication of assets ultra, &c. On the 9th of December, 1835, a rule was obtained to show cause why the plaintiffs should not have leave to withdraw the declaration on the record, and file a new one. The declaration proposed to be substituted, contained 10 counts. 1. The first count set forth the covenant to convey 16,800 acres, and that as to one-third thereof, payment should be made when it was ascertained, (which the said E. T. was to do as soon as con- veniently and legally might be,) whether any, and how much was taken away by elder surveys, other than those in which said E. T. was concerned, and that the payment should be made in man- ner following, viz. for so much of the said one-third as should re- main after elder surveys, other, &c. and as was not within the selection of 45,000 acres, the said E. T. agreed to pay the said T. C. when it should be ascertained as aforesaid, 25 cents for each acre with interest, from the 15th of August, 1793, and for so much as should remain after elder surveys, other, than, &c., 25 cents with interest as aforesaid, for each acre of 12-45ths, and of 14-45ths, together 26-45ths thereof: Averment, that the said E. T. ascertained on the 25th of July, 1806, that no part of the said third was taken away by such survey, other than, &c., and that no part of the same was within the said selection ; that the said T. C. in his lifetime was always willing to convey, or cause to be conveyed, &c., and that the said plaintiffs, since his death, have been always willing to cause to be conveyed, &c. 2. The 2d count set forth that the said E. T. undertook to ascertain and make known to the said T. C., within a reasonable and short * time, the lines and boundaries of the said selection of 45,000 acres, and what part of the third was within them: Averment that the same might have been ascer- tained before the 1st May, 1807, but the said E. T. did not ascer- tain, &c. 3. The 3d count set forth that the said E. T. covenanted to pay the said T. C. the sum of 25 cents with interest, &c. for every acre of 2-3ds of 12-45ths and of 14-45ths of 16,800 acres, that was within the boundaries, &c. of the said 45,000 acres, &c. : Averment, that all the said 16,800 acres were within the said selection. 286 SUPREME COURT [Dec. Term, (Coxe v. Tilghman.) 4. The 4th count set forth that the said E. T. covenanted to pay the said T. C. the sum of 25 cents, with, &c. for every acre of 2-3ds of 12-45ths and of 14-45ths of 16,800 acres that was without the boundaries, &c. : Averment, that all the said 16,800 acres were without the said selection. 5. The 5th count set forth the covenant of E. T. as in the 3d count, and that the said E. T., would within a reasonable and short time, viz. before 1st May, 1807, ascertain the said lines and boundaries, and the quantity of the said 16,800 acres which fell within them : Averment, that it was convenient to the said E. T. to ascertain, &c. before the first of May, 1807, &c. 6. The 6th count was the same as the 5th, except that the cove- nant was as to the quantity of the 16,800 acres which fell without the said lines and boundaries. 7. The 7th count set forth that the said E. T. covenanted that the said Adam Ku.hu would well and truly pay the said Coxe, 25 cents with interest, from the 15th of August, 1793, for every acre of 2-3ds of 7-45ths of such quantity of the said 16,800 acres, as fell within the said selection: Averment, that all the said 16,800 acres were within the said selection, and that the said Adam Kuhn did not pay the said 25 cents, &c. 8. The 8th count set forth that the said E. T. covenanted that the assignees of Joseph Thomas, would within a reasonable time, viz. on or before the 25th of July, 1807, pay the said T. C. 25 cents, with interest, &c. for every acre of 2-3ds of 12-45ths of the said land within the said selection: Averment, that all the said 16,800 acres were within the said selection, and that the assic/nees of the said Joseph Thomas did not pay the 25 cents, &c. 9. The 9th count set forth that the said E. T. covenanted that the assignees of Joseph Thomas would within a reasonable time, viz. on or before the 25th of July, 1807, pay the said T. C. 25 cents, with interest, &c. for every acre of l-3d of 12-45ths of the said land as should remain after elder surveys, other than, &c. and as should fall within the said selection, &c. Averment, that no part of the said 16,800 acres was taken away by elder surveys, other than, &c. and that the whole thereof was within the said selection, &c. and that the assignees of the said Joseph Thomas did not pay, &c. r*287~i * 10 * The loth count set forth tliat * he 8aid E " T> L J covenanted that Adam Kuhn would, within a reasonable time, viz. on or before the 1st of May, 1807, pay the said T. C. 25 cents (with interest, &c.) for every acre of l-3rd of 7-45ths of so much of l-3rd of the said 16,800 acres as should remain after elder surveys, other than, &c. and was within the bounda- ries of the said selection : Averment, that no part of the said 1835.] OP PENNSYLVANIA. 28T (Coxe v. Tilghman.) l-3rd of the said 16,800 acres was taken away by elder surveys other than, &c. and that the whole was within the said boundar- ies ; and that the said Adam Kuhn did not pay the said 25 cents, fee. The rule to show cause why the amended declaration should not be substituted, coming up ; Mr. Inc/raham in suport of the rule referred to Wharton's Digest, title Amendment, pi. 20 to pi. 28; DieU v. M'Grlue, (2 Rawle, 337 ;) Lee v. Wright, (1 Rawle, 149 ;) Commonwealth v. Meckling, (2 Watts, 130;) Proper v. Luce, (3 Penn. Rep. 65.) Mr. W. Rawle, Jr. and Mr. B. Tilghman, contra, argued that at least the four last counts of the amended narr. were inadmissi- ble, since they contained a new cause of action, viz. an alleged covenant to pay for Adam Kuhn, and for the assignees of Joseph Thomas. Besides, in this case there has been an award of arbi- trators under the old declaration, from which the defendants appealed ; and this brings the case within the principle of Tryon v. Miller decided at this term, (ante, p. 11.) The opinion of the Court was delivered by SERGEANT, J. It was settled soon after the passing of the Act of the 21st March, 1806, that the plaintiff is entitled to amend his declaration or add a new count at any time before or during the trial of the cause, provided he do not introduce a new cause of action. But what amendment does introduce a new cause of action, has given rise to frequent controversies ; and in many instances the amendment has been refused as not coming within the limit prescribed. An examination of the decided cases will show that in actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration is founded, an alteration of the grounds of recovery on that instru- ment or contract, or of the modes in which the defendant has violated it, is not an alteration of the cause of action. In an action on a policy of insurance, when the plaintiff declared on losses by capture by an enemy and perils of the sea, the court permitted an amendment by adding a count for loss by barratry. The object of the action, says Tilghman, C. J. was to recover for a loss covered by the policy, and this amentment did not go out of the policy. Anon, cited by Tilghman, C. J. in Rodrigue *v. Curcier, (15 Serg. & Rawle, 83.) So in Cassell v. [*288] CooJce, (8 Serg. & Rawle, 268,) in debt, the declaration stated an agreement of the 10th August, 1813, that Cooke should sell to Cassell an estate, for which Cassell covenanted to pay $325 288 SUPREME COURT [Dec. Term, (Coxe v. Tilgbman.) per acre, viz. one-third on the 10th of April, 1814, one-third on the 10th of April, 1815, and one-third on the 10th of April, 1816, without interest. Cooke covenanted to deliver to Cassell a good and sufficient deed on the 10th April, 1814, when Cassell was to give his bond for the remaining two-thirds, with security, if re- quired. Possession was to be given to Cooke on the 10th of April, 1814, and the parties were bound in a penalty of $100,000. Averments of performance by plaintiff. After the jury were sworn and some progress made in the trial, the plaintiff requested leave to add a new count, setting forth that the deed was not executed on the 10th April, 1814, at the defendant's request, in consequence of his inability to comply with his covenants ; that it was understood the articles remained in force, and the defend- ant paid various sums to the plaintiff in part performance ; that on the 1 3th January, 1816, a good and sufficient deed was exe- cuted, which the plaintiff tendered to the defendant on or about the 31st of January, 1816. This was objected to by the defend- ant, but admitted ; and on error brought, was held to be right. " It was," says Mr. Justice Duncan, " the assignment of a breach of the same covenant on the same instrument, to be covered by the same penalty." So in /Shannon v. The Commonwealth, (8 Serg. & Rawle, 444,) it was held that in an action on a sheriff's bond, the plaintiff might amend his declaration by assigning new breaches of the condition of the bond. " The new breach," says C. J. Tilghman, "related to the neglect or non-performance of Shannon's duty as sheriff." And in that case, the Chief Justice states the very point now in question to have been already de- cided, for he says, " it has been determined that under our act of assembly, the Court may permit the plaintiff in an action of cove- nant, to assign new breaches." In Cunningham v. Day, (2 Serg. & Rawle, 1,) the declaration was in indebitatus assumpsit for money had and received. It appeared on the trial that the plaintiff gave the defendant a mare and $25 in exchange for a horse. The horse turned out to have been stolen, and the plaintiff was obliged to give him up to the owner. The defendant had sold the mare for a tract of land and $25. The Court holding that the plaintiff could only re- cover the $50 received by the defendant without interest, the plaintiff had leave to amend by a new count founded on the special contract. This on error was held right, and Tilghman, C. J. says, " this was no change of the cause of action. The plaintiff had been mistaken in the form of his declaration, but it was the injury from the stolen horse for which he sought re- dress." So where the plaintiff declared in assumpsit for breach of promise to convey land, it was held he might amend by setting forth again the breach of contract, blended with complaints 1835.] OF PENNSYLVANIA. 289 (Coxe v. Tilghman.) *of fraud. Carter v. M' Michael, (8 Serg. & Rawle, 441). In Rodriguez v. Currier, (15 Serg. & Rawle, 81,) the wrong complained of by the plaintiff, and for which he sought redress, was the defendant's misconduct as his agent in the sale of certain cottons consigned to him. This misconduct was set forth in various forms by the original declaration, and the plaintiff asked leave to add several other forms tending to the same point. The substance of the same complaints was preserved in all those forms ; that the plaintiff had been injured by the de- fendant's mismanagement in the business committed to him ; and the amendment Avas allowed. In Grratz v. Phillips, (1 Binn. 588,) the writ and narr. in account-render, stated the defendant as bailiff and receiver of A. A new count was permitted, describ- ing the plaintiff as surviving partner, and his interest as having been held jointly with a certain B. deceased. On the other hand, where a new instrument or contract is in- troduced as a ground of action, the amendment is not permitted. Thus in Farmer's Sank v. Israel, (6 Serg. & Rawle, 294,) the suit was against the defendant as indorser of two promissory notes. It appeared on the trial that the notes were not due ; and it was held, that an amendment introducing five other notes entirely different, was not admissible. So in Newlin v. Palmer, (11 Serg. & Rawle, 98,) the plaintiffs declared on a demise by them to the defendant of a grist mill and tract of land, from the 1st April, 1814, for one year, at the rent of $375. Afterwards, by leave of Court, they filed an additional count, alleging, that the defendant after the expiration of the last mentioned term, viz. from the 1st of April, 1815, continued to occupy the demised premises as tenant to the plaintiffs until the 1st April, 1816, whereby he became liable to pay an additional $375. " Here," says Mr. Justice Duncan, " the matter was entirely new, it was a continuation of possession for another year by the permission and sufferance of the plaintiffs. The first declaration gave the defendant no notice of preparation for the second year ; as well might the plaintiff have added a new count on a bond ;" and the judgment was reversed. In Canal Company v. Parker, (4 Yeates, 363,) the declaration having laid that the defendant was indebted to the plaintiffs for subscription to a canal company with interest ; a new count was refused, which demanded the penalty of five per cent, per month, under the act incorporating the com- pany. In Diehl v. M l Grlue, 2 Rawle 334, the plaintiff's decla- ration in assumpsit contained counts for goods sold an'd delivered with a quantum valebant, Avork and labor Avith a quantum meruit, money had and received, money paid and expended. On the trial the plaintiff, to introduce evidence inadmissible under the counts as they stood, offered- an additional count, stating a special agree- :>'.> SUPREME COURT [Dec. Term, (Coxe v. Tilghman.) ment and promise by the defendant to find the plaintiff constant employment at coach or carriage trimming at a certain rate ac- cording to the kind of work, for such length of time as should be mutually agreed on, and breach thereof, which the Court below r*2Q01 * rece ^ ve d- This court, on error, held that it was im- -1 properly admitted, because it introduced a new cause of action. In actions ex delicto, the rule is the same. The foundation of the complaint laid in the declaration must be adhered to, although the modes of stating that complaint may be varied by an amend- ment. Thus in Clymer v. Thomas, (7 Serg. & Rawle, 178,) in trespass, the declaration stated the act to have been committed in the township of Beaver, in the county of Union. The plaintiff was allowed to amend the declaration after the jury sworn, by inserting the name of Centre township instead of Beaver to cor- respond with the fact. The substance of the plaintiff's case, says Tilghman, C. J. was a trespass committed by the defendants by cutting timber on the plaintiff's land in Union county. So in slander, where the words in themselves are not actionable, but are laid as spoken of the plaintiff's trade or calling, the trade may be amended. Rodriguez v. Currier, (15 Serg. & Rawle, 83.) But in trover for an instrument under seal, an amendment is not allowable by introducing a count for another and different instrument not under seal, constituting a simple contract. Tryon v. Miller, (ante p. 11.) To the same effect is the case of JCeasby v. Donaldson, (2 Bro.-103), that in trover leave will not be granted to add other articles. And the plaintiff having de- clared for slander, shall not introduce trover or malicious prosecu- tion, or libel. 4 Yeates, 507. The effect of the act of assembly, says Mr. Justice Gibson, is to authorize the Courts to allow amendments, after swearing the jury, as fully as they could do at common law before that period, and also to enable a Judge at Nisi Prius to grant amendments, when the cause is about to be tried, which formerly could only be permitted in bank. Farmers and Mechanics Sank v. Israel, (6 Serg. & Rawle, 294) ; Wilson v. Hamilton, (8 Serg. & Rawle, 240). At common law the rule was, that after the end of the second term, the plaintiff was allowed to add a new count, or amend his declaration, only where the cause of action was sub- stantially the same, but not for a different right of action. 2 Tidd's Prac. 754. The reason of this rule was that the plaintiff was obliged to declare within two terms, and a new right of action was considered as a new declaration. But amendments in form or in substance, not varying the cause of action, could be made at any time, whilst the pleadings were in paper, and before they were entered of record. Ib. Our act carries this right of 1835.] OF PENNSYLVANIA. 290 (Coxe v. Tilghman.) amendment down to the very period of trial itself ; and the construction has uniformly been, that while it never intended to permit the plaintiff to change the cause of action, yet any amend- ment short of that, was within the letter and spirit of the act, whether in matter of form, or in matter of substance affecting the merits of the case. In the present case the action was covenant on an agreement under seal, dated the 25th of July, 1806, between Edward Tilgh- man and * Tench Coxe, by which the former covenanted r*oq-i-i to purchase certain lands of the latter. The original declaration contained four counts ; and two addi- tional counts were afterwards filed. All these set out in various forms a breach of one part of the agreement. The defendants craved oyer ; and the agreement being set out, they put in ten pleas, to which the plaintiff replied or demurred. The plaintiff's motion now is for leave to file ten new counts ; the defendant's objections are, that the 1st, 2d, 3d, 4th, 5th and 6th contain assignments of breaches similar to those in the former counts, except that the first count avers that Tench Coxe was always ready to convey or cause to be conveyed and that his execu- tors after his death offered to cause the said lands to be conveyed to the executors or heirs of E. Tilghman. The 7th, 8th, 9th and 10th counts of the new declaration are said to contain a new cause of action, because they set out a breach of another part of the agreement not alluded to at all in the old counts, namely of cove- nant by E. Tilghman, that Dr. Adam Kuhn would pay T. Coxe 25 cents per acre, for certain share of the lands, and also that the assignees of Joseph Thomas would pay the like sum for another share. It is manifest from the principles already stated, that these amendments are allowable. The change in the first count is but another mode of alleging performance by the plaintiffs. The 7th, 8th, 9th and 10th, assign new breaches, but the plaintiff adheres to the same instrument on which the former declaration was founded. No. other agreement is suggested or pretended ; and it is set out at length by the plaintiff on the prayer of oyer made by the defendants. Leave granted to file the ten new counts. Cited by Counsel, 2 Wharton, 158, 171 ; 3 Id. 422 ; 5 Id. 178 ; 1 Watts & Sergeant, 242, 272 ; 4 Id. 142, 552 ; 7 Barr, 494 ; 8 Harris, 14 ; 10 Id. 282 ; 1 Casey, 408 ; 8 P. F. Smith, 467. Cited by the Court, 2 Wharton, 137 ; 4 Watts & Sergeant, 277 ; 4 Har- ris, 1G2 ; 11 Id. 331. See also, 5 Barr, 256 ; 7 Id. 435 ; 1 Wright, 43. 292 SUPREME COURT [Dec. Term, [*292] ['PHILADELPHIA, FEBRUARY 6, 1836.] WALTER against WALTER and Another. IN ERROR. 1. Indfbitatus assumpsit will lie to recover the money agreed to be paid for owelty on a parol partition of lands ; though there must be an averment of circumstances to take the contract out of the statute of frauds. 2. Where there was a special count in an action of assumpsit, which al- leged, that the plaintiff, defendant and others, being tenants in common of land, appointed certain persons to make partition and appraisement, and that the persons so appointed did make partition and appraisement ; in consequence of which the defendant became liable to pay the plaintiff a certain sum for owelty, &c. ; and there was also an account in indebi- tatus assumpsit ; and a third count was on an insimul computassent ; and the evidence offered was of a partition made by the tenants in common among themselves, and of a valuation only, by the appraisers ; it was held, that although this evidence was variant from the special count, yet as the plaintiff was entitled to recover on the second count, the vari- ance was not cause of demurrer. 3. A parol agreement by the husband of a tenant in common, to make partition, afterwards ratified by her by deed duly acknowledged, is bind- ing ; and in an action by one of the parties to the partition, the original contract may be declared on, and it is not necessary to aver the rat.fica- tion specially. 4. A parol partition of lands was made in the year 1820, and possession delivered pursuant to it. In 1829 a deed reciting the partition and con- firming the same, was executed by all the parties to the partition, ex- cepting the defendant. In indtbitatus assumpsit to recover the amount payable by the defendant for owelty of partition, it was held that the legal title not having been completed unt.l within six years before the commencement of the suit, the statute of limitations was not a bar to the plaintiff' 's recovery. Tnrs was a writ of error in the Court of Common Pleas of Northampton county. In the Court below, Lambert Walter and Jacob Seilor, execu tors of the last will of Abraham Walter, deceased, brought an action of assumpsit against John Walter, in which the declara- tion recited, that Michael Walter died intestate, &c. on or about the twenty-first of February, A. D. 1820, seised in his demesne as of fee of and in a certain tract of land situate in Forks township in the county of Northampton, adjoining lands of Jacob Seip and others, and containing 155 acres, 49 perches, strict measure, more or less, leaving issue eleven children, to wit, John Walter, Barnet Walter, Catharine Walter, George Walter, Jacob Wal- ter, Abraham Walter, Michael Walter, Peter Walter, Elizabeth in- termarried with George Belles, and Susanna intermarried with Christian Kutzler, to whom as tenants in common the said pre- mises did descend and come, and that afterward on the first day of May, in the year aforesaid (1820) the said children severally 1835.] OF PENNSYLVANIA. 292 (Walter. Walter.) agreed each with the other, to make partition of the premises to and among them, according to the *awards, adjudication r*oqq-i and appraisement of Rudolph Schweitzer, Daniel Brown, L John Brown, Melcher Hay, Philip Odenwelder, Jun., John Rader, Jacob Seip, Samuel Neigh, John Shoemaker, and Philip Cor- rell, and that they would severally pay to the others respec- tively their several and respective shares of any and every sum and sums of money which on such partition, valuation and ap- praisements, and the accsptance of the purparts of such real estate, should be found due from them or any of them respec- tively to the others of them respectively, when there thereunto afterwards they should be severally or respectively required. That afterwards on the second day of May in the same year, the appraisers having taken upon themselves the burden of the said arbitrament, adjudication, partition and valuation, made their award and adjudication of and upon the premises, making parti- tion thereof into eleven parts, each containing 14 acres 19 perches of land, agreeably to a plot or draft thereof, and did value and appraise the said purparts respectively as follows : Number one at and for the sum of 675 Number two at and for the sum of 700 Number three at and for the sum of 660 Number four at and for the sum of 675 Number five at and for the sum of 675 Number six at and for the sum of 800 Number seven at and for the sum of 775 Number eight at and for the sum of 650 Number nine at and for the sum of 1100 Number ten at and for the sum of 1200 Number eleven at and for the sum of 800 And that the said children did then and there have notice, and did severally and mutually promise and agree each to and with the others respectively, that they should severally have the right to accept, select and take the said purparts according to seniority, at the valuations, the males having the preference of choice over the females, and that such of them as accepted purparts of the said premises, which were valued and appraised at more than the sum of $791. 81|, should and would severally pay to such of them as accepted purparts valued and appraised at less than that sum, respectively, their proportion of such excess, for owelty of partition according to the said valuation and appraisement. The declaration then proceeded to set forth the acceptances, and averred that John Walter thereby became liable to pay to the other children of the said Michael Walter deceased, who had accepted purparts of the said premises, valued and appraised at 293 SUPREME COURT [Dec. Term, (Walters. Walter.) less than $791 81 f, of whom the said Abraham Walter was one, the sum of $408 19-100 for owelty of partition as aforesaid, and that the proportion thereof due and owing from the said John to the said Abraham was the snm of $53 32-100 ; and the said John r*9Q-n De i n g so indebted to *the said Abraham in his lifetime in the sum of $53 32-100 on the same day and year last aforesaid, at the county aforesaid, undertook and faithfully promised the said Abraham in his lifetime to pay him the said last mentioned sum of money, when thereunto afterwards he should be requested. 2d count. That the said John on the 1st day of January, 1829, was indebted to the said Abraham in his lifetime, in the further sum of $100 for the owelty of partition of certain lands and tene- ments, theretofore held in common by the said John and Abra- ham, and which had before that time been partitioned and divided between them ; and being so indebted afterwards, to wit, on the same day and year last aforesaid at the county aforesaid, under- took and faithfully promised, &c. 3d count. That the said John, on the day and year last afore- said, at the county aforesaid, accounted . with the said Abraham in his lifetime of and concerning divers other sums of money from the said John to the said Abraham before that time due and owing, and then in arrear and unpaid, and upon such accounting the said John was then and there found to be in arrear, and in- debted to the said Abraham in the further sum of $100 ; and being so found in arrear, and indebted he, the said John, in con- sideration thereof afterwards, viz. : on the day and year last afore- said, undertook and faithfully promised, &c. The defendant pleaded non assumpsit, and payment, with leave to give the special matters in evidence, non assumpsit infra sex annos and actio non accrevit infra sex annos ; upon which issues were joined. The cause came on for trial on these pleadings on the 27th day of November, A. D. 1832, and by consent, the depositions of witnesses taken on a bill to perpetuate testimony were read in evidence. John Brown, a witness whose deposition was so taken, testified, that some time in the year 1820 he was called on by Michael Walter to assist in the valuation of the real estate of Michael Walter, deceased, in pursuance of which he met the other persons chosen ; and on the 2d day of May, 1820, they made a valuation of the real estate of the said deceased in parcels, according to a survey or division thereof annexed. That he understood from all parties that each of the heirs had chosen a man to make a valuation, and that they had agreed upon the division according to the said survey. And that after the valuation should be made, the heirs should make choice of their respective lots at the 1835.] OF PENNSYLVANIA. 294 (Walter v. Walter.). valuation according to seniority. That John Walter was present at the valuation, and that the survey or plot annexed is the survey of the partition alluded to, and that another paper identified and annexed is the valuation made by the persons chosen, and signed hy all the appraisers, with the acceptances of the said lots respect- ively hy the heirs written thereon. * That he knows r*oqe-| that the parties accepted at the valuation their several purparts of the said real estate and went into possession thereof as follows. Barnet Walter, No. 1, Abraham Walter, No. 2, Catharine Walter, No. 3, Peter Walter, No. 4, Christian Kutzler in right of his wife Susanna, No. 5, Jacob Walter, No. 6, Joseph Nicholas in right of his wife Elizabeth, No. 7, George Belles in right of his wife Mary, No. 8, George Walter, No. 9, John Wal- ter, No. 10, and Michael Walter, No. 11, each containing 14 acres 19 perches. And the several persons who accepted lots or those claiming under them have held and enjoyed the parts accepted by them ever since. And that John Walter is yet in possession of the said lot No. 10 accepted by him. Philip Odenwelder stated in substance the same facts, with the addition that George Rader, the person chosen by John Walter, did not attend, but that John Walter and the other heirs agreed that the deponent and the other nine persons should proceed to make the valuation ; which they accordingly did. That previous to the meeting of the persons chosen to make the valuation, the real estate had been divided into eleven shares, each containing fourteen acres and nineteen perches agreeably to the survey, and the men were chosen to make a valuation of the property. Melchoir Hay stated in substance the same. John Rader, Jacob Seip, both stated the same, all concurring in the fact that the partition had been previously agreed on by the heirs, and that they were merely chosen to put a valuation on the parts. Abraham Hay stated, that some time in the summer of 1829, he went with Abraham Walter to the house of John Walter ; Abraham had an agreement with him signed by all the heirs of Michael Walter deceased except John. Abraham asked John to f sign it ; he looked around at it, said he had nothing to sign, and then went out. I understood that it was an agreement that each of the heirs of Michael Walter deceased should hold the part of the estate which he had accepted, upon a division which had been made of the same. The witness identified the paper. That he was not at the valuation or partition, nor does he know anything of his own knowledge in regard to it. John Bidelman stated, that he went with Abraham Walter to the house of John Walter, Abraham asked John to sign an agree- ment, that the heirs of Michael Walter, deceased, should hold the VOL. i. 20 295 SUPREME COURT [Dec. Term, (Walter t>. Walter.) parts of estate they had accepted on a division and valuation. John said he had nothing to sign and went out of the house ; wit- ness identified the paper. The following is a copy of the paper referred to by Bidelman : "Whereas, Michael Walter, late of Forks township, in the county of Northampton, farmer, died on or about the twenty-first r*9Qfil ^ a y f* February, in the year of our Lord one thou- J sand eight hundred and twenty, seised in his demesne as of fee, of and in a certain tract of land, situated in the township and county aforesaid, adjoining lands of Jacob Seip, Peter Sny- der, Peter Koechlein, Barnet Walter, the heirs of John Arndt, deceased, and Christian Butz, containing one hundred and fifty acres and forty-nine perches, strict measure, be the same more or less, leaving a widow named Anna Maria, who is also since de- ceased, and issue eleven children, to wit : John Walter, Barnet Walter, (of Pike county,) Catharine Walter, George Walter, (of Smithfield,) Jacob Walter, Abraham Walter, Michael Walter, Peter Walter, Elizabeth, the wife of Joseph Nicholas, Mary, the wife of George Bellas, and Susanna, the wife of Christian Kutz- ler. And whereas the said heirs and legal representatives of said the deceased, did shortly after his decease choose and agree upon Rudolph Sweitzer, Daniel Brown, John Brown, Melchoir Hay, Philip Odenwelder, Jr., John Rader, Jacob Seip, Samuel Neigh, Jacob Shoemaker and Philip Correll, to make a partition of the said premises, to and among the said heirs, and to value and ap- praise each purpart. In pursuance of which appointment the said viewers did on the second day of May, in the said year one thous- and eight hundred and twenty, partition and divide the. said premises into eleven purparts, agreeably to the draft thereof here- unto annexed, and did value and appraise the several purparts at, and for the following sums of money, that is to say: Number one, at the sum of $675 Number two, at the sum of 700 Number three, at the sum of - 660 Number four, at the sum of - 675 Number five, at the sum of - 675 Number seven, at the sum of - 775 Number eight, at the sum of Number nine, at the sum of Number ten, at the sum of Number eleven, at the sum of - 650 1100 1200 800 And thereupon it was mutually agreed by and among the said heirs and legal representatives of the said deceased, that the third part of the said valuation money should remain charged thereon, the interest whereof should be paid unto Anna Maria Walter, the 1835.] OF PENNSYLVANIA. 296 (Walters Walter.) widow of the deceased, during her life, and that such of the heirs as accepted purparts valued at more than $791 81 f should pay to such as accepted lots valued at less than that sum, their re- spective proportions of such excess, according to the valuation of the purparts accepted by them, and it was also further agreed, that there should be allowed and opened for the use and benefit of the owners of the several lots or purparts, a road or way of the width of one perch, on the line between the lots, from the corner of Christian Butz's land, and from the road leading from Arndt's Mill, to Jacob Seip's land, and throughout to Barnet Walter's land. And thereupon * afterwards the said heirs accepted the said purparts respectively, as follows, that is to say : Barnet Walter accepted lot or purpart No. 1. Abraham Walter accepted lot or purpart No. 2, Catharine Walter accepted lot or purpart No. 3, Peter Walter accepted lot or purpart No. 4. Christian Kutzler, in right of Susanna his wife, accepted lot or purpart No. 5, Jacob Walter accepted lot or purpart No. 6, Joseph Nicholas, in right of Elizabeth his wife, accepted lot or purpart No. 7. George Bellas, in right of Mary his wife, accepted lot or purpart No. 8. George Walter accepted lot or purpart No. 9. John Walter accepted lot or purpart No. 10, and Michael Walter accepted lot or purpart No. 11, at the valu- ation and upon the agreements aforesaid. , it is hereby agreed that the said John Walter, Barnet Walter, Catharine Walter, George Walter, Jacob Walter, Abra- ham Walter, Michael Walter, Peter Walter, Joseph Nicholas and Elizabeth his wife, George Bellas and Mary his wife, and Chris- tian Kutzler and Susanna his wife, and their respective heirs and assigns, for ever shall severally hold the said purparts or lots, so as aforesaid accepted by them. The aforesaid John Walter, Jacob Walter, George Walter and Michael Walter severally paying to the other heirs, the sums falling due them, according to the agree- ment aforesaid, for owelty of partition, and that the said several heirs and their heirs and assigns, owners of the said premises, forever shall have the use of the said before-mentioned road, and each owner shall keep the same in repair so far as the same passes through his premises. " In witness whereof the said heirs and legal representatives of the said deceased have hereunto set their hands and seals, the fourth day of July, in the year of our Lord 1829." 297 SUPREME COURT [Dec. Term, (Walter n. Walter.) This deed was executed by all the heirs excepting John Wal- ter ; and it was duly acknowledged by the married women so as to pass their estates. The following is the paper referred to as containing the valua- tion. " The real estate of Michael Walter, late of Forks township, deceased, is divided by a jury choshen by the heirs of the said deceased as folows, to wit, beginning at the line of Earned Wal- ter, and valued at No. 1, $675 Mein Lot Bernhart Walter, (in German.) No. 2, 700 Mine Lot Abraham Walter, *No. 3, 660 Mine Lot Catharine Walker, her mark X, No. 4, 675 Mine Lot Peter Walter, No. 5, 675 Chr. Kutzler, No. 6, 800 Main Lot, Jacob Walter, No. 7, 775 Joseph Nicholas, No. 8, 659 George Bellas, his lot, No. 9, 1100 George Walter, the Old Stand. No. 10, 1200 Mine Lot, (Abraham's lot and buildings,) John Walter, No. 11, 800 Mine Lot, Michael Walter, X his mark. " We, the subscribers hereof, haven appreised and valued the above real estate as above stated, and the parties agreed in the' presens of the all the subscribers, that a road shall be alowed of one perch ivid on the line between the lots to be gape oppen, to pase and repase from the corner of Christian Butz, his land, and from the road leatin, from Arndt Mill to Jacob Seips and tru- wout to the line of Earned Walter, the beginning of the numbers of the above lots: as witness our hands this 2d day of May, A. D. 1820. RUDOLPH SCHWEITZER, JOHN RADER, DANIEL BROWN, JACOB SEIP, JOHN BROWN, SAMUEL NEIGH, MBLCHOIR HAY, JOHN SHOEMAKER, PHILIP ODENWELDER, JUNR, PHILIP CORRELL." After the plaintiff had gone through with the evidence, the de- fendant demurred to the evidence, the plaintiff joined in demur- rer, and the jury found a verdict for the plaintiff and assessed damages at $90 .29-100, subject to the opinion of the Court on the demurrer to the evidence. The following causes of demurrer were assigned : " First. That the evidence does not support the declaration, there being a material variance in this: that the declaration 1835.] OF PENNSYLVANIA. 298 (Walter v. Walter.) states that' the appraisers " took upon themselves the burthen of the said arbitrament, adjudication, partition and valuation," and "did make their award and adjudication of and upon the pre- mises, making partition thereof into eleven parts, &c." Whereas all the evidence shows that the partition had been made by the heirs, and a survey and plot made according to the partition, before the appraisers acted on the submission at all, and that all that was required of the appraisers was to make a valuation of the respective purparts. Second. That the partition though equal in quantity was unequal in value, and being made by femes covert was not bind- ing, and that all must be bound or none. Third. That if the plaintiff ever had a cause of action against the defendant, it is barred by the statute of limitations. Fourth. That there is no proof of an express promise by John * Walker to pay the difference between the value of the r*oqq-| part accepted by him and his share in the whole valua- L tion, nor any evidence from which a jury could be warranted in inferring such a promise ; and indebitatus assumpsit will not lie for owelty of partition in money, of lands held in common." The demurrer was argued by counsel and held under advise- ment till the of 1834, when the Court rendered judgment for the plaintiffs on the demurrer. Whereupon this writ of error was sued out. In this Court the following errors was assigned : "1. The Court erred in rendering judgment for the plaintiff on the demurrer to the evidence ; the Court should have ren- dered judgment for the defendant for the causes of demurrer set forth. 2. If any judgment could have been rendered for the plaintiffs, it should have been a special judgment de terris. 3. The action was improperly brought in the name of the exe- cutors of Abraham Walter, deceased. If any action can be main- tained, it should be at the suit of the heirs." Mr. Brooke for the plaintiff in error : 1. The evidence did not support the declaration, and it is well settled that a variance in actions like the present is fatal. Arch- bold's Civil Pleadings, 122, 369 ; Selwyn's Nisi Prius, title As- sumpsit ; Stephen on Plead. 108 ; Snell v. Moses, (1 Johns. Rep. 96 ;) Saxton v. Johnston, (10 Johns. Rep. 418 ;) Umbehocker v. Russel, (2 Yeates, 339 ;) Funk v. Arnold, (3 Yeates, 428.) There is a substantial difference between appointing persons to make partition, and appointing them to make valuation, after a partition has been effected. 2. I am aware that the question involved in the second cause 299 SUPREME COURT \I)ec. Term, (Walter v. Walter.) of demurrer may be supposed to have been settled by the case of Rhoads's Appeal, (3 Rawle, 420 ;) but in that case the wife had signed the original agreement. Here the married women were not parties in any way to the partition. It is true that they were parties to the alleged ratification, and acknowledged the deed according to the act of Assembly ; but I submit that the original agreement was absolutely void and incapable of confirma- tion. Co. Litt. 170, (6); Jackson v. Vanderheyden, (17 Johns. Rep. 167 ;) Martin v. Dwelly, (6 Wendell, 13.) At all events they should have set forth specially that they had tendered the deed of ratification, instead of declaring upon the original con- tract. 3. This is an action of assumpsit. The declaration sets forth a contract dated the 2d of May, 1820. The action was brought to April Term, 1831 ; consequently the statute of limitation ope- rates as a bar. In the calculation of interest made by the plain- r*3001 ^' 8 * counse l an d which the jury adopted, the cause of action is made te commence on the 2d of May, 1820 ; and this being the time stated in the declaration, the plaintiff is bound by it. Ballantine on Limitations, 84, 85 ; 3 Peere Wins. 143. 4. There is no proof of an express promise. And I contend that indebitatis assumpsit will not lie for owelty of partition. Money directed to be paid for owelty partakes of the character of land, and is subject to the same rules of descent. Brooke's Abr. title Partition, 5 ; Co. Litt. 10, a ; 16 Viner, 223, pi. 3 ; Plow- den, 134 ; 1 Vernon, 133, was the case of a bond. Mr. Porter, for the defendant in error, having been requested by the Court to confine himself to the subject of the statute of limitations, argued 1st, that the money allowed for owelty was a lien upon the land ; the recovery of which might be enforced by ejectment, and consequently that the right to recover it was not barred or lost until after the expiration of 20 years. Boyd v. Grant, (13 Serg. & R. 124 ;) Higgs v. Stimmel, (3 Penn. R. 117 ;) Allnatt on Partition, 12. [HUSTON, J. Suppose you have a promissory note secured by a mortgage upon real estate, would not the statute bar an action on the note ?] In Lenox v. M l Call, (9 Serg. & R. 302,) this Court held that a bond and mortgage were to be considered as one for the purpose of lien. Why should we be turned round, when there is no doubt we could recover in ejectment? In Pidcock v. Bye, (3 Rawle, 183,) assumpsit was held to lie against the assignee of land subject to the charge of the widow's thirds, to recover the principal amount after her death. Judge Huston in that case, expressed his dis- like of the idea that the equitable powers of the Court are more 1835.] OF PENNSYLVANIA. 300 (Walters Walter.) extensive in one form of action than in another. If we had a Court of Chancery, a bill for specific performance might be brought which would not be barred by the statute. In Higgs v. Stimmel, (3 Penn. Rep. 117,) Judge Kennedy speaks of the lapse of 20 years as barring the recovery of the money allowed for owelty. 2d. The cause of action did not accrue until the execution of the deed of 1829. Hart v. Porter's Executors, (5 Serg. & R. 201 ;) Jones v. Trimble, (3 Rawle, 386 ;) 4 Bac. Abr. 474 ; Blanchard on Lim. 104, 107. The plaintiff could not have re- covered until he had tendered to the defendant a deed for his share of the land. Steinhauer v. Witman, (1 Serg. & R. 446 ;) Stoddart v. Smith, (5 Binn. 365 ;) Jordan v. Cooper, (3 Serg. & R. 564; 2 Saunders, 67 (a) note 10 ; 6 Modern, 26. Mr. Brooke, in reply : The question is whether the party is not bound by the rules applicable to the form of action which he has adopted. The act of limitations is express in relation to the action of r*qn-i-i assumpsit. There is no authority to support the idea of L a lien in the case of a voluntary partition. The act of 1807, in relation to compulsory partitions, it is true, gives a lien in such cases ; but the provision shows that no such lien exists at common law. The case of Higgs v. Stimmel, does not sustain the position. It is settled that a lien does not exist in this state for unpaid purchase money ; and the reasons which have led to that conclusion apply to the case of money payable for owelty. The case of Higgs v. Stimmel, also shows that the title was suffi- cient by a parol partition. If such is the law, the right of action accrued in 1820. The opinion of the Court was delivered by GIBSON, C. J. Though usually dealing, for purposes of per- formance, with contracts but for the sale of lands, and compelling the vendor to fulfil his stipulations by a conveyance, equity enter- tains a bill also for payment of purchase money, on the ground of reciprocity of recourse, and not for failure of remedy at law. It seems formerly to have been thought in Armiger v. Clark, (Bunb. Ill,) that, as the vendor wants but the purchase money, his remedy is exclusively at law. But in Lewis v. Lechmere, (10 Mod. 506,) it was conceded by the chancellor, that he may come into equity also for inadequacy of redress at law; since when, it has come to be a rudimental principle that he may file a bill, or bring an action at his option. Newl. Con. 89, 91 ; Sugd. Vend. 294-5. Where he is unable to prove the terms of a special agreement, his effective remedy is in equity by the force of cir- 301 SUPREME COURT [Dee. Term, (Walter C.Walter.) cumstances. But though the common law may not imply a pro- mise to pay in consideration of indebtedness for the price of land sold, why may not an action of indebitatus assumpsit, on the principle of Lang v. Keppele, be substituted for a bill in equity, where the vendor has entitled himself to specific performance of a parol contract of sale? There is, perhaps, no common law medium, through which the matter proper for such a bill, can be exhibited to a jury with more convenience or advantage. Had exception been taken to the count instead of the measure of proof, the late case of Irvine v. Bull, (Sunbury 1835, 4 Watts 287,) which requires an averment of circumstances to take the contract out of the statute of frauds, would have interposed a formidable dif- ficulty. A count for the price of land sold and conveyed, would doubtless be sufficient ; and where the contract had be*en partially executed, an averment of possession given, would be equally so. Here it is not pretended that a case of part performance was not made out by the evidence ; which, being sufficient to support an unexceptionable count, is sufficient to entitle the plaintiff to re- cover. It is immaterial, therefore, that there is a substantial variance between the proof and the count on a special promise ; r*3021 an( ^ fc ^ a ^ * nere *i s no P ro f a * & H f the insimul com- -" putassent. As the plaintiff was entitled to recover on the evidence, it must be intended that the count to which alone it was applicable, is the foundation of the judgment. The defence on the statute of limitations, could be maintained but by showing a cause of action originally complete by delivery of possession pursuant to the partition. A parol partition in part executed, is undoubtedly valid, but as vesting no more than equitable title in several ty. The difficulty in Ebert v. Wood, (1 Binney, 218,) was to get the statute of frauds out of the way of the contract; to effect which, the case was very properly treated as one of part performance ; but no one dreamed of the title being vested at law. Such being the state of the case when the parties here took possession in several ty, on what ground was the difference to be paid for owelty, demandable before tender of the legal title ? If there is any thing which equity scans with care, it is the title which is forced upon a purchaser by a decree of performance. A summary of the cases on this subject, is given by Mr. Sugden in his Law of Vendors, p. 310, by which it appears that a purchaser will not be compelled to pay for a doubt- ful or an equitable title ; nor will a case to ascertain the solidity of the legal title be sent to the law judges without his consent. Even where they have certified in favor of the legal title, per- formance will not be decreed if the chancellor is dissatisfied with the equitable title ; and wherever the point certified is doubtful, the purchaser may require it to be sent to other judges. Thus, 1835.] OF PENNSYLVANIA. 302 (Kriderfl. Lafferty.) we see that every possible care is taken of him, by seeing that his title is not only unimpeachable but above suspicion. There are undoubtedly exceptions to this, resting on express or implied terms of the contract, in which a purchaser acquainted with the nature of the title, and treating for it without objection, Avill be compelled to fulfil his bargain, though circumstances might entitle him to subsequent relief, because he had got what he bargained for. But can it be supposed that a parol title is what these parties bargained for ? Such might be an effectual ground of recovery or defence before a jury, but not as conveniently so as a title vested by direct conveyance ; and equity will not compel a pur- chaser to accept a title depending on facts collectable from circum- stances by a jury, but attended with such doubt as to affect the value of the* estate as a marketable commodity. Such is the rule in chancery ; and it appears to be a just one. Can it be intended then, that these parties consented to be satisfied with a title which a purchaser of ordinary prudence would not have consented to take, when a better one could be had at the expense of a scrive- ner's fee ? To suppose so, would be unreasonable. Now, a party seeking performance, instantly turns every thing to be done by him into a condition precedent ; and as the legal title was not ten- dered till within six years before the impetration of the writ, the plaintiffs' testator had not entitled himself to an action in time to bar them by the statute of limitations. Judgment affirmed. Cited by Counsel, 5 Wharton, 115 ; 6 Id. 334 ; 8 Watts, 274 ; 9 Id. 107 ; 3 Watts & Sergeant, 331 ; 7 Casey, 327. Cited by the Court below, 4 Harris, 158. See also 7 Harris, 31. [*PHILADELPHIA, FEBRUARY 6, 1836.] [*303] KRIDER and Another against LAFFERTY. IN ERROR. 1. In trespass for breaking the plaintiff's close, and carrying away his goods, evidence of the value of the goods is admissible on the part of the plaintiff, although he may have brought replevin for the same goods, if the defendant has pleaded property in that action, and it is still depend- ing ; and a fortiori, if it had been discontinued, though such discontinu- ance was after the commencement of the trial of the action of trespass. 2. If a paper purporting to be a receipt, is rejected by the Court, but after- wards admitted on proof of its authenticity by the person signing it, the rejection in the first instance cannot be assigned for error, on the ground that it compelled the party offering it, to call as a witness the person 303 SUPREME COURT. [Dec. Term, (Krider e. Lafferty.) signing it, who was the witness of the other party, and thus gave the other party the benefit of the cross-examination. 2. In trespass against a purchaser at sheriff's sale, where the question was whether the purchase included a certain piece of ground in possession of the plaintiff; the defendant gave in evidence a receipt signed by the former owner of the land sold at the sheriff's sale, by which he agreed to give up possession at a certain time : it was held that the plaintiff might examine the witness who gave the receipt, to show that it was not his intention to include in the agreement, the lot occupied by the plaintiff. 4. The rule that parol evidence is not admissible to alter or contradict written instruments, applies only to cases between the parties to the in- strument, their representatives, and those claiming under them ; but not to strangers. Per KENNEDY, J. 5. A deed in the following words : "Memorandum of an agreement made, &c., this 24th day of February, 1816, between J. L. of, &c., and D. L. of, &c., witnesseth, that the said J. L. hath let unto the said D. L., hi legal heirs and representatives, a certain piece of meadow containing one acre, &c., at the rate of $15 per acre, to be paid by the said D. L., or his legal heirs, annually, to the said J. L. his heirs and assigns. In witness both parties have hereunto set their hands and seals, in the year first above written," &c.: was held to pass a fee simple to D. L., subject to an annual ground rent in fee, and not to be a lease for years merely. 6. Where the owner of a lot of land containing about twenty acres, con- veyed one acre of meadow land to A., who neglected to record his deed, but took possession and planted it with willows for the purpose of his trade of basket making, which willows he cut every year at the proper season, and he continued in this possession about 14 years, when the land of his vendor was sold at a sheriff's sale ; it was held that the possession of A. was sufficiently distinct and unequivocal to give notice to the pur- chaser at the sheriff's sale. 7. It cannot be assigned for error, that the court below declined answering a question put to them by a juror, on a point of law. UPON a writ of error to the District Court for the City and County of Philadelphia, it appeared that an action of trespass was brought in that court by Daniel Lafferty against John J. Krider and Joshua Peeling, to recover damages for breaking and entering the plaintiff's close, &c., under the following circum- stances: John Lentz the elder, being the owner of a tract of land situate in the township of Passyunk and county of Philadelphia, contain- f*3041 i n g * 18 acres and 20 perches, on the 24th of February, -" 1816, executed the following instrument: " Mem. of an agreement made and this 24th day of February, one thousand eight hundred and sixteen, between John Lentz, of the township of Passyunk, county of Philadel- phia, farmer, of the one part, and Daniel Lafferty of the same place, basket-maker, of the other part, witnesseth That the said John Lentz hath let unto the said D. Lafferty, his legal heirs and representatives, a certain piece of meadow containing one acre, be the same more or less, at the rate of 1835.] OF PENNSYLVANIA. 304 (Krider t. Lafferty. ) fifteen dollars per acre, to be paid by the said Daniel Lafferty or his legal heirs annually, to the said John Lentz, his heirs and assigns. In witness both parties have hereunto set their hands and seals in the year first above written. JOHN LENTZ, [L. s.] DANIEL LAFFERTY, [L. s.] " Lafferty took possession under this instrument', and for several years cultivated willows, to be used in his trade of basket- making. Lentz died in the year 1817, and by virtue of proceedings in partition in the District Court, the said tract of 18' acres and 20 perches was sold by the sheriff, and purchased by Krider one of the defendants, in the month of September, 1830. In the spring of 1831, he sent some men to cut the willows ; which was the trespass complained of. The declaration contained two counts, 1. For breaking and entering the plaintiff's close, treading down, trampling upon and spoiling the plaintiff's willows, and cutting down the willows, and taking and carrying away the willow twigs, &c., and converting and disposing thereof, and breaking down, prostrating and destroying the plaintiff's fences. 2. For cutting down and destroying the plaintiff's willows and carrying them away, and converting them, &c. Issue having been joined on the plea of not guilty, the cause came on for trial in the District Court, on the 8th of November, 1833, when the plaintiff, after giving in evidence the foregoing instrument of the 23d of February, 1816, examined Daniel Cop- pall, a witness, who testified as follows : " Lafferty used to be in possession of a one acre willow lot : whether he was or not when the willows were cut, I don't know. I can't say whether he planted the willows. It was a willow lot long back. It * always went by the name of Daniel r^qn^l Lafferty's Garden, since I knew it ; I have known him cut the willows on it. He keeps a tavern on the banks of the Schuylkill, farms, and last season followed basket-making. I went there to help Peeling cut willows down in April, 1831. We had cut down all but some which were in the water, which was cold, and we thought we would leave them for a warm day. We had tied up 18 or 20 bundles. Lafferty came and asked by whose authority we cut. Peeling said, by Mr. Krider's. Laf- ferty said he considered them his property, and forbad Peeling taking them away. Peeling said if that was the case, he would quit them arid let them be. We left the garden and all went away together. Lafferty, Peeling, Wm. Hoffner, a man named 305 SUPREME COURT [Dec. Term, (Kridere. Lafferty.) Billy, myself, and I think one or two of Peeling's men, all went with intention to help Peeling cut down willows. Peeling is a basket-maker, lives near the Buck. Lafferty wished him to leave them till Monday morning, he would show him something. Can't say how many bundles were cut, as we did not tie them up. I am a basketrmaker. It was the proper season for cutting wil- lows. We had tied 18 or 20 bundles, not a quarter of them. I have bought willows sometimes, can't say for how much. I remember its being called Lafferty's Garden ten or twelve years ago." The plaintiff then called a witness to prove the value of the willows cut by the defendant's order ; but the defendant's counsel objected to any evidence being given of their value, on the ground that an action of replevin had, previously to bringing this suit, been instituted by Lafferty against Peeling, in the Court of Common Pleas ; wherein the defendant had claimed property and given a property bond to the sheriff. The plaintiff's counsel, however, produced a certificate from the prothonotary of the Court of Common Pleas, dated on the day of the trial, setting forth that the action of replevin had been discontinued on that day. The Judge admitted the evidence, and the defendant's counsel excepted. On his part, the defendant gave in evidence the sheriff's deed, bearing date the 20th of September, 1830, and acknowledged on the 24th of the same month, conveying to him in fee (inter alia) the said one acre lot. He then called Richard Peltz, a witness, who testified as follows : " I am the son-in-law of the late John Lentz, and the acting executor of his will. I am acquainted with the two tracts of land mentioned in the sheriff's deed. It includes the acre of . willow ground. The whole property in the deed was during the life of John Lentz, senior, let by him to his son John Lentz, junior. John Lentz, junior, held the property as tenant from March 1817, till the sale to Krider. After the death of his father, John Lentz paid the rent to me as acting executor. I r*30fil never knew as executor, any one * as tenants of the property but John Lentz. No one but John Lentz paid me the rent. I gave him receipts for the whole rent due the heirs, and took receipts from him for his portion of what might be due, exchanging the balance of money which might be due from one to the other. I settled yearly with him. John Lentz is also an executor. The executors of John Lentz, sen., are, Philip Peltz, John Lentz and myself. The lease was originally, as I understood, from old John Lentz, for his son to take posses- sion, and rent to commence on the first of March, 1817. He had possession before, but the rent to commence then ; John had 1835.] OF PENNSYLVANIA. 306 (Krider0. Lafferty.) possession before 1817 ; but I can't say he had particularly pos- session of that one acre lot, but his father gave him permission to do as he pleased as tenant. John Lentz, jr., knew Lafferty had a lease of the acre lot, and was in possession, at the time he took the farm of his father. I do not know that Lafferty was in the habit of settling and paying rent to John Lentz as executor. I knew that Lafferty had taken that acre of land from John Lentz, deceased, and had planted willows in it ; and I knew that in the arrangement between John Lentz and his father, he, John Lentz, jr., was to receive the rent from Lafferty for his own private use. I knew this from the father and son. The son was to receive the rent from Lafferty for his own private use. The lot was a grass lot or meadow before Lafferty took it. Lafferty occupied it from the date of his lease, 24th February, 1816, till the time of the sale by the sheriff." Philip Peltz, another witness produced by the defendant, testi- fied that he was one of the executors of Lentz, that he never re- ceived any rent from Lafferty or any other person, and as execu- tor, he did not know Lafferty as tenant : that, however, he knew that Lafferty held the willow garden from the date of the lease, sixteen or seventeen years, till the property was sold. The defendant's counsel then offered in evidence (having proved the hand-writing,) a paper signed "John Lentz," dated the 14th of September, 1830, which was alleged to be an acknowledg- ment of the receipt of the sum of $10, as a consideration for deliv- ering immediate possession of the land purchased by the latter at the sheriff's sale. The plaintiff's counsel objected to the admis- sion of the paper, and the Judge refused to permit it to be read ; to which also the defendant excepted. The defendant's counsel then called John Lentz, who testified that the receipt was signed by him and that Lafferty had no. notice of the arrangement, to his knowledge. On his cross-ex- amination, he was asked " what the money mentioned in the re- ceipt was paid for," to which question the defendant's counsel ob- jected ; but the Judge * permitted it to be put, and r*qn7T another exception was taken. The witness, in answer to the question testified as follows : " The money was paid for possession of the premises I occu- pied, with the exception of the turnip patch. It was not paid for the possession of the willow lot ; I never considered it in my possession. Previously to Lafferty 's taking the lot, I had offered my father a price for the farm including that lot. He did not think proper to take my offer, and afterwards let the lot to Lafferty for willows. This was upwards of a year before my father and I had agreed. I offered to pay my father seven hundred dollars a year. He refused, but after letting the willow 307 SUPREME COURT [Dec. Term, (Krider . Lafferty.) lot he accepted the seven hundred dollars, and I considered for that reason I was to receive the rent for the plaintiff's lot. He never let me the willow lot. I knew it was let to plaintiff, and my father knew that I knew it. Lafferty got the lot for fifteen dollars a year. My original offer of seven hundred dollars in- cluded the willow lot and all, and for that reason I considered myself entitled to receive the rent for the willows. My father died in September afterwards. He never let me the willow lot. My father agreed I should have the place. Nothing was said between him and me about the willow lot. No objections were made to my receiving the fifteen dollars, by the rest of the heirs. I received the rent for the willows, not as executor, but as an in- dividual, as my right. It was understood by the executors that I was entitled to receive that. The rent was paid to me by Lafferty. Lafferty planted the willows I think in 1816 : part I think in 1817. He appeared to me to take care of them. He cleaned the grass. Willows begin to sprout the second year. I should not suppose they were in their prime before the third year. There was an understanding between Lafferty and me as to my receiving the rent ; but none as to the character in which I received the rent, and he paid it to me. There were accounts between Lafferty and myself. I owed him money. There is an unsettled account between the plaintiff and me. We have never settled any accounts. I have received goods from him and manure sometimes. He has paid me money for rent. I never was Mr. Lafferty's landlord, further than as executor. I have not settled an account as executor in the office. I settled with Mr. Peltz, he settled with the office. I never kept an account of rents received from Lafferty. I had some little entry of them in a book which I have at home. When my father let me the _ whole place, it included more than was sold to Krider : fourteen and a quarter acres besides, with the building. I considered the whole rent as seven hundred dollars, and not seven hundred and fifteen dollars. I don't recollect that any thing was said about the willow lot, when the arrangement was made by me with Krider." The defendant's counsel then put in the said paper, which was read as follows: r*081 * R ece i ve d> September 14th, 1830, of John J. Kri- der, $10 in full for immediate possession of the 18 acres and 20 perches of land that he bought of the estate of John Lentz deceased, except the piece in turnips, which I promise to deliver him 20 bushels, and give him possession of all the land the 25th of November next.- JOHN LENTZ." 1835.] OF PENNSYLVANIA. 308 (Krider v. Lafferty.) When the evidence was closed on both sides, the defendant's counsel requested the Judge to instruct the jury as follows : 1. That the instrument of writing dated February 24th, 1816, from John Lentz to the plaintiff, is not a lease, but if operative, conveyed to him a fee simple in the willow lot, reserving an annual rent ; or if not a fee, it conveyed to the plaintiff an estate, either for his own life or that of Lentz, and that in either case not being recorded prior to the purchase by Krider, it was void against him, he having no notice. 2. That if the instrument referred to, did not convey a fee, but is to be considered a lease, it was void for uncertainty, no time being mentioned. 3. That if held to be valid as a lease, Lafferty by payment of rent, recognized John Lentz, Jr. as his landlord, became his sub-lessee, and had no rights against the owner of the property, except through Lentz, Jr., and was not therefore entitled to notice to quit. 4. That the arrangement made on the 14th of September, 1830, between Krider and Lentz, was operative upon the sub- lessee Lafferty ; that it was equivalent to or operated as notice to quit, to Lentz, and was as such, binding on Lafferty his under- tenant : and that at all events it prevented any implied renewal of the lease, after the expiration of the current year. 5. That the defendants in this case were at most unintentional trespassers, and the plaintiff entitled only to nominal damages. 6. That the willows having been suffered to lie some time on the ground after they were cut, and before they were carried away, the plaintiff could not support trespass for carrying them away. The judge after recapitulating the evidence, charged the jury upon the points presented to him as follows : " As to the points of law on which I have been requested by the defendant's counsel 'to charge you; I instruct you that the instrument of writing dated Feb. 24th, 1816, from Lentz de- ceased to the plaintiff, is a lease, and did not convey to him a fee in the premises described therein, reserving an annual rent. It is unskillfully drawn, and on its face is ambiguous. It be- gins with a mutilated word, probably memorandum, and if so is a memorandum under hand and seal of the parties, by which it appears that the said John Lentz hath let unto the said D. Laf- ferty his legal heirs and representatives, a certain *piece of meadow land containing one acre, be the same more or less, at the rate of fifteen dollars per acre, to be paid by the said D. Lafferty or his legal heirs annually to the said John Lentz, his heirs and assigns. It is expressly a letting at $15 per acre annually. The word let is strictly applicable to a lease 309 SUPREME COURT \J)ec. Term, (Krider . Lafferty.) and not to a deed in fee ; and a lease is for life, for years or at will, and always for a less time than the interest of the lessor in the premises. If this be a lease for life, whether it be for the life of the lessee or lessor, not being recorded, it is void against a purchaser without notice. It is, however, impossible from the face of the paper to ascertain, with any degree of certainty, the agreement of the parties in regard to the duration of the interest intended to be transferred, and therefore the instrument on its face would be void for ambiguity and uncertainty, if the defect be not explained and removed by external evidence, so as to give it validity to a certain extent, e. g. as a lease for a year or from year to year. If the evidence proves that the plaintiff was put in possession of the premises, under a rent of $15, by the elder Lentz, that he cultivated the land, and paid or accounted for the rent as tenant from 1816 until the sheriff's sale to Krider, the instrument of writing, with the other evidence, may establish Lafferty's right as tenant from year to year ; and as such he was entitled to three months' notice to quit before the expiration of the year, from his lessor or his representatives, or his or their assigns, that is from Krider, the defendant. If, however, he paid rent to J. Lentz, Junr. as his landlord individually, he became subtenant of J. Lentz, Junr.; and notice to J. Lentz, Junr. would be suf- ficient. If, under the whole evidence, the jury are satisfied that Laf- ferty went into possession of the premises in 1816, as the tenant of John Lentz the elder, under an agreement to pay an annual rent, notwithstanding the written lease was thus ambiguous and uncertain ; that the agreement was performed during the elder Lentz's lifetime, and since his death until the purchase by Kri- der, then at the time of Krider's purchase, Lafferty's tenancy was from year to year, whether he held under the executors as their tenant, or as subtenant of John Lentz the younger. If the plaintiff was tenant of the executors, and not a subtenant, he was unaffected by the agreement between J. Lentz and Kri- der, and the defendants had no right to enter on the premises. The court would like the jury to find specially, whether the plaintiff was tenant of the executors or, the subtenant of J. Lentz the younger, as in the latter event several principles of law arise, which will embarrass the case unnecessarily unless such a finding takes place. If, however, the plaintiff was the subtenant of J. Lentz, Jun. still he was not affected by the receipt or agreement between Lentz and Krider, especially as it is distinctly proved he had no [*310] notice of it. * A notice to quit to Leutz would have been sufficient, without notice to Lafferty. 1835.] OF PENNSYLVANIA. 310 (Krider v. Lafferty. ) On the 4th point, I charge that the law is not, as contended by the defendant's counsel. On the 5th point, I also give a negative charge. If the jury are satisfied from the evidence and law as explained by the Court, that the plaintiff has been injured in the manner described in the declaration, the jury may give him in damages a fair compensation for the injury he has sustained. 6th point. (The Judge here stated the claim from the declara- tion.) If this lot were let to grow willow twigs for basket-mak- ing ; and the annual crop of the plaintiff, after breaking and enter- ing his close, was cut partly down and partly destroyed, and the part cut down was subsequently, after lying on the ground, by the continuous and connected acts and conduct of the defendants, taken and carried away from the premises, such acts and carrying away the willows may be taken into consideration by the jury, in estimating the damages in this action. The existence of the facts, here referred to, is left to the jury on the evidence as matter of fact. If these facts are established, and particularly that the wil- low twigs were the annual crop of the plaintiff, trespass can be sustained by the plaintiff, for such cutting, taking and carrying away. When the judge had concluded his charge, one of the jury asked the following question, " Whose tenant is the plaintiff now, he being in possession of the premises ? " The judge declined answering the question, stating that " it might embarrass the cause, and that it was not necessary to its decision." The jury found a verdict for the plaintiff with $150 damages, and they also found, that the plaintiff was the tenant of John Lentz, the elder, and not of John Lentz, the son. The defendant having removed the record to this Court, assigned the following errors : 1. That the Court erred in admitting evidence of the value of the willows cut by the plaintiff in this action of trespass, quare clausum fregit, while at the time of the institution of this suit, and at the time of the offering the evidence, an action of replevin was pending to recover the value of the willows. 2. That the Court erred in refusing to admit in evidence the receipt of John Lentz, dated September 14th, 1830, from John Krider ; the hand-writing of the said Lentz having been proved, unless the said Lentz were first examined, and proved that the money in the said receipt mentioned, was paid at the time of the giving thereof. 3. That the Court erred in admitting said Lentz's testimony, as to what the money in the said receipt mentioned, was paid for ; *the object of the testimony being to vary, alter, and r*oii-i contradict the said written receipt. VOL. i. 21 311 SUPREME COURT [Dec. Term, (Kridere. Lafferty.) 4. That the Court erred in their answers to the several points, on which they were requested by the counsel of the plaintiffs in error to instruct the jury : because the Court charged the jury, 1. That the instrument of writing, dated February 24th, 1816, from John Lentz to Lafferty, did not convey a fee simple to Lafferty in the willow lot, but that the same was a lease, and did not convey any freehold ; and that though void on its face for uncertainty, the jury might resort to extrinsic evidence, and that if, on the whole evidence, they were satisfied that Lafferty went into possession under an uncertain lease, but which operated from year to year, and continued, then Lafferty was tenant from year to year. 2. That the Court charged, it was not void for uncertainty, but might be construed a lease from year to year. 3. Because on the 4th and 5th points, the Court charged negatively, that the positions therein stated, were not law. 4. Because on the 6th point the Court charged, that the jury might give damages for the carrying away the willows, although they were suffered to lie some time on the ground after they were cut, and before they were carried away ; if they believed the acts of cutting and carrying away the willows were continuous acts. 5. Because the judge erred in point of law in his charge to the jury. 6. Because, upon being asked by a juror, if Lafferty continued tenant for want of notice, whose tenant he was, the judge declined answering the question, declaring that it would embarrass the cause, and was not necessary to the decision of the question." Mr. M' Call and Mr. James S. Smith, for the plaintiffs in error: 1. The Court ought not to have received evidence of the value of the willows cut ; that being the subject of another proceeding, depending at the time the trial commenced. Floyd v. Browne, (1 Rawle, 121.) The defendant did not come prepared with evi- dence relative to value upon this supposition ; and the discontinu- ance was a surprise upon him. 2. The receipt of Lentz was admissible to prove that he agreed to surrender the premises to Krider ; and it ought to have been admitted in the first instance. By the decision of the Court, we were compelled to call Lentz, who was the witness of the other party. Toivnsend v. Kerns, (2 Watts, 180 ;) Rainey v. Black, (3 Penn. Rep. 40.) 3. Lentz ought not to have been allowed to give evidence con- tradictory of the agreement contained in his receipt. Snyder v. 1885.] OF PENNSYLVANIA. 312 (Krider v. Lafferty.) Snyder, *(6 Binn. 483 ;) M l Williams v. Martin, (12 r^o-ion Serg. & R. 269 ;) Wallace v. Baker, (1 Binn. 610 ;) L ' Shepherd v. Watson, (1 Watts, 35.) 4. The Court erred in charging that the instrument of the 24th February, 1816, did not pass the fee. 2 Roll. Ahr. 424, pi. 5, title, Rent Charge ; Holmes v. Seller, (3 Lev. 305 ;) G-rantham v. Hawley, (Hob. 132;) Shove v. Pincke, (5 Term Rep. 124;) Stouffer v. Coleman, (1 Yeates, 397 ;) 2 Coke's Inst. 483 ; Gray v. Holdship, (17 Serg. & R. 414.) If this deed then was a con- veyance in fee, it was void as against Krider, by the act of 1775 ; not having been recorded. The conveyance or lease was void for uncertainty, and could not be explained by the parol evidence. Kemmil v. Wilson, (3 Wash. C. C. Rep. 308.) That notice to a lessee to quit, is notice to a subtenant, is shown by the case of Jackson v. aker,'(lQ Johns. Rep. 270;) 5 Bos. & Pull. 330. The Court erred also in saying that the action might be main- tained, although the willows had been suffered to lie on the ground after they were cut, they not being an annual crop like grass. Comyn's Land. &' Ten. 577. [GiBSON, C. J. Was not the pos- session of Lafferty such as to give notice to the purchaser ?] It would be difficult to say that his possession had sufficient notori- ety. It consisted merely in cutting willow tops at certain seasons. In Billington v. Welsh, (5 Binn. 129,) it was said by C. J. Tilghman, that possession, to amount to legal notice, must be "a clear, unequivocal possession." 8. Another error assigned is that the Judge did not answer the question of law propounded by a juror. [GiBSON, C. J. A Judge is certainly not bound to answer a question put to him by a juror on a point of law.] Mr. Holy, (with whom was Mr. F. W, ffubbell,') for the de- fendant in error, was stopped by the Court, whose opinion was delivered by KENNEDY, J. The admission of the evidence complained of in the first error assigned, was certainly right. The circum- stance of another action pending between the parties for the same cause, was not a sufficient objection to it. If two actions be brought for the same cause at the same time by the plaintiff against the defendant, he may plead the one in abatement of the other, and by this means abate them both. Pie v. Cook, (Hob. 128, s. c. Moore, 864, pi. 1193 ;) 1 Roll. Abr. 353 ; 39 H. 6, 13, pi. 16, per Prisot, Justice, cited 5 Mass. 179, in note ; Mayor, $c., v. B. (1 Freem. 401, pi. 526, s. c. 3 Keb. 491;) 3 Burr. 1434; Com. Dig. Tit. Abatement; Ib. 24; Beach v. Norton, (8 Conn. 71.) But if one action be commenced before the other, 312 SUPREME COURT \_Dec. Term, (Krider v. Lafferty. ) the defendant may abate the second by pleading the pendency of the first; and unless he plead it in abatement, he cannot take advantage of it, because it forms no bar to the plaintiff's r*q-io-i *right of action, and therefore cannot be given in evi- dence under the general issue, or any other plea in bar. Beyond, however, the vexation of having two suits on hand, to attend to at the same time, the defendant cannot be prejudiced ; because after a trial and judgment rendered in one of the actions, no matter if it be the first or the second, in respect to the time of its commencement, he may plead such judgment puis darrein continuance, in bar of the other, and thus protect himself against all liability in it. Grarvin v. Dawson, (13 Serg. & R. 146.) The taking and carrying away the willows were charged in the plaintiffs declaration as part of his complaint ; and after evidence given on the trial tending to prove the fact, the evidence objected to, was certainly material to the issue, and therefore properly admitted. The second error is not sustained either: because even admit- ting that the Court were wrong in refusing to permit the receipt to be read in evidence, still they may be considered as having corrected their error afterwards by admitting it. The counsel for the plaintiffs in error, however, allege, that their clients were prejudiced, notwithstanding the subsequent admission of the re- ceipt in evidence : because in consequence of the Court's refusing to permit the receipt to go in evidence to the jury when first offered, they say, that they were compelled to adduce John Lentz jr., as their witness, who was unfavorably disposed towards them, and in his testimony gave a coloring to the case, in some respects, that Avas untrue and calculated to prejudice the jury against them : also, that the plaintiff below, who, as they believe, intended to adduce Lentz as a witness on his behalf, by this gained an ad- vantage that he could not have had in case he had called him first, by drawing from him all the testimony he wished, in answers to leading questions. It may be that it was no disadvantage to the plaintiff below, that the plaintiffs in error called John Lentz, jr., as their witness, but still it cannot be said with propriety, that the Court below compelled them to do so. If they were con- vinced that the Court was wrong in refusing to permit the re- ceipt to be read in evidence when first offered, they ought, after taking their bill of exceptions to the opinion of the Court in this behalf, to have passed Lentz by, and to have proceeded with their other evidence ; and if they lost the cause, then to have brought their writ of error. It will not do then, to say that they were forced by the decision of the Court, to call Lentz as their wit- ness, because it was clearly at their option to do so or not as they pleased.* * Seel Grant, 347. 1835.] OF PENNSYLVANIA. 313 (Krider t>. Lafferty.) But seeing that there was no evidence given, when the receipt was first offered, tending to show that it was given, or had an ex- istence before the trespass was alleged to have been committed, I am inclined to think that the Court was right in rejecting it ; for to have admitted it to be read in evidence to the jury upon proof merely that John Lentz junior's name, which was sub- .scribed to it, was in his handwriting, would have been a pretty dangerous kind *of testimony, especially as Lentz him- r*o-Mn self was still in being and present, who at least could be L called to testify, how the fact was ; whether it was given at the time of its date, and whether the facts contained in it were true or not. For any thing that appeared to the Court, when it was first offered, it might have been manufactured within the last hour im- mediately preceding, between Krider and Lentz, for the very purpose of being offered in evidence, without there being a word of truth in any thing set forth in it ; this being the case, it ap- pears to me that it was properly rejected when first offered. We also think there is nothing in the third error assigned. As Lafferty, the plaintiff below, was no party to the receipt, he was not estopped from gainsaying the truth of the matters alleged in it. It was competent therefore for him to show, if he could, that it was all a fiction, or a contrivance between Krider and Lentz, made for the purpose of defrauding him of his just 'rights : and this he was at liberty to show by the evidence of Lentz himself, as well as that of any other ; for Lentz, not being a party to the suit, could be coerced at the instance of either party, to testify to any thing within his knowledge that was material to the issue. If the receipt was a misrepresentation of the matter set forth in it, no one could know it better than Lentz ; and therefore as re- garded knowledge on the subject, no body could be better quali- fied to testify : And even if it had been concocted for a fraudu- lent purpose, he would have been bound to have disclosed it, provided it were material to the issue : His being a party to the fraud, Avould not have excused him from giving evidence of it, as long as it were of such a nature as would not subject him to crim- inal punishment. The authorities cited by the counsel for the plaintiffs in error, showing that written agreements or instruments cannot be altered, changed or contradicted, have not the least application : the rule laid down by them is only applicable to cases of controversies be- tween the parties to the agreements, their representatives, and those claiming under them, but not to strangers; whose rights and interests would truly be in- peril if the rule were to be ex- tended to them, in such manner as to conclude them from giving evidence tending to contradict such agreements. The fourth error embraces the answers of the Court to six 314 SUPREME COURT [Dec. Term, (Kridera. Lafferty.) points submitted on the trial by the counsel for the plaintiffs in error ; in each of which they alleged the Court erred. The first is, as to the effect of the deed given in evidence by the plaintiff, as evidence of his title to the locus in quo. The counsel of the plaintiffs in error, requested the Court to instruct the jury that it conveyed a fee simple to the defendant in error ; but the Court entertaining a different opinion, told the jury that it did not pass a fee. In this I think the Court was mistaken ; for the deed in express terms passes the land to Lafferty, his r*^1 11 legal heirs and representatives, reserving a *rent of fifteen dollars to be paid by the said Lafferty or his legal heirs, annually, to the said John Lentz, his heirs and as- signs. The Court seems to have overlooked the words of inher- itance in the deed, which certainly set forth the quantum of estate intended to be conveyed ; and to have taken up the idea that as the word " let" is the only term used by the grantor in the deed, to part with his interest in the land, it was not sufficient to pass a fee simple, though words of inheritance were used in connection with it. Now it is well settled, that the construction of a deed must be as favorable and as near to the minds and apparent intent of the parties as it is possible it may be, and the law will permit : for benigne sunt facienda interpretations chartarum, propter simplicitatem laicorum. Et verba intentioni, non e contra, debent inservire. Shep. Touch. 86; Co. Litt. 314, (6.) The words in a deed are not the principal thing to be attended to, but the de- sign and intention of the parties. 3 Atk. 135 ; Plowd. 160. And accordingly, if the intent of the parties appears, the law will construe the words in such sense as to perform that intent, rather than in any other sense. Plowd. 154. The Court below, seems to have thought that a conveyance of land in which the word "let," alone, was used, to pass the interest intended to be con- veyed, must necessarily be what is strictly and technically called a lease ; which Sir Wm. Blackstone says must always be for a less time than the lessor hath in the premises. 2 Bl. Com. 317. And therefore something less than the fee simple, which was the most the grantor could have in the premises, passed by it. The usual words of operation, and as it is said, most apt in a lease, are " demise, grant and to farm let." Shep. Touch. 266; Co. Litt. 456; 2 Bl. Com. 317, 18: and the Latin words, when leases were drawn in that language, were " dimisi, concessi et adfinnam tradidi." 2 Bl. Com. 317, 18. The word "let," may therefore be considered a translation of " tradidi," which is from trado, signifying, " to deliver, give, or yield, to deliver up, to surrender, to resign, to put into one's hands," &c., and would seem to be quite as appropriate to show that it was the intention of the vendor or grantor, to part with and transfer a fee simple estate 1835.] OF PENNSYLVANIA. 315 (Krider v. Lafferty.) to the vendee or grantee, when accompanied with a limitation to the heirs generally of the latter, as the words, "do" or " dedi" which are considered to be the most apt to be used in a deed of feoffinent in fee, (2 Bl. Com. 310,) the most efficacious mode in some respects, of conveying land, known to the law. Shep. Touch. 204 ; Co. Lit. 9, a, 49 b. But it is certainly a great mistake to suppose that the words considered most apt for any particular species of conveyance, or indeed, that any of them, are at all necessary to the making thereof; for Lord Coke says, " whatever word amounteth to a grant, may serve to make a lease" Co. Lit. 45, b. The word " demise" he also says, "is applied to an estate either in fee simple, fee tail, or for term of life, and so commonly is taken in many writs." 2 Inst. 483. So the words "bargain and sell," are *not necessary to r*q-i^-i constitute a deed of bargain and sale, in order to pass a fee simple or less estate in land, under the statutes of uses and the statute of 27 Hen. 8, c. 16, requiring such deed to be en- rolled within six months after its date, if the estate conveyed be a freehold ; other equivalent words will be sufficient to make land pass by way of bargain and sale ; such as the words, " alien or grant," " demise and grant," or if the owner of land " cove- nant to stand seised of his land to the use of another ;" these will all amount to good bargains and sales, if made for a pecuniary consideration or one of pecuniary value, though ever so small, even a barleycorn. Shep. Touch. 222 ; 2 Inst. 672; Fox's case, (8 Co. 186 ;) Barker v. Keat, (1 Mod. 262, and 2 Mod. 249.) It is perfectly clear then, from the authorities on this subject, as well as from the very structure of a deed conveying land, when the words " enfeoff, give, grant, alien, bargain, sell, demise, let," &c., or any of them are used, that it is not to express or to desig- nate in the slightest degree, the quantity of estate intended to be conveyed, but merely for the purpose of passing from the seller to the purchaser, the estate therein described, by other words introduced specially for that end, giving to it, either the charac- ter of a fee simple, fee tail, term for life or lives, or for years ; as for instance, if it be a fee simple that is intended to be trans- ferred, the words " his heirs," must be inserted immediately after the name of the purchaser, for they and they alone are sufficient to make it such according to Littleton, sec. 1. The word " let," in the deed in question, according to the rules of construction already mentioned, must also be considered sufficiently operative to pass the fee simple in the land, if from the whole tenor of the deed itself, it appears to have been the intention of the parties to use it for that purpose. That John Lentz intended to convey by this deed, some estate in the land to Daniel Lafferty cannot be doubted ; and that the Avord " let," was used for the purpose 316 SUPREME COURT [Dec. Term, (Kridere. Lafferty.) of passing that estate or interest, whatever it was admits of as little doubt, because it is the only word used to which any mean- ing of the kind can or ever has been affixed ; and if the other words of the deed are to be regarded as they must, for in con- struing deeds or instruments of writing, effect must be given to every word used therein, if it can be done consistently with the other parts thereof; it is evident that the interest and estate, thereby conveyed, were not only intended to be enjoyed by Daniel Lafferty himself, but also by his heirs generally, without any restriction or limitation whatever ; which cannot be without giving to Lafferty a fee simple estate in the land, subject how- ever to a fee-farm-rent, as it is termed by Littleton, sec. 216 and 217 ; or a perpetual rent, as it is called by Mr. Hargrave, in his note 5 to Co. Lit. 143, 4 : and with us usually called a ground rent in fee. And indeed it appears to me that the deed in this case, as a conveyance of the land in fee, is about as perfect as f*S17l ^ ie ^ orm ^ iafc was a dP te( l an d prescribed by an act of J *the Assembly of the Province of Pennsylvania, two or three years after it was granted to William Penn, passed the 10th of March, 1683, which is in these words, to wit : " A. B. of, &c. the day of from him and his heirs, grants, his acre of meadow land, with all its appurtenances lying in, &c., to C. D. and his heirs, for the consideration of fifteen dollars yearly rent, to be paid to A. B. and his heirs and assigns upon the day of In witness whereof, he sets his hand and seal." See Hall and Sellers' vol. of the Province L. appendix, 9. The word " grant," is used in the form thus prescribed, instead of the word " let," which at most is but a verbal difference, and cannot change the character of the deed as a conveyance of the land, or its effect. The counsel for the plaintiff in error also, in reference to this deed, requested the Court to instruct the jury that if it were not a conveyance of the fee simple, but a mere lease of the land, it was void for uncertainty, on account of the time of its duration not being mentioned. The Court, however, declined giving such instruction to the jury, and on the contrary advised them, that taking the deed in connexion with the conduct of the parties, of which they had parol evidence given to them, they might con- sider it a lease from year to year ; this is also complained of by the plaintiffs in error, as being incorrect ; and no doubt it is so, as has already been shown in the opinion advanced, that a fee simple passed by the deed. If, however the counsel had asked the Court to instruct the jury, that the deed was void for uncer- tainty, in not describing the land intended to be conveyed, so as to enable its precise location to be ascertained, there would have been more color for it at least. But still I do not think that 1835.] OF PENNSYLVANIA. 317 (Krider n. Lafferty.) this would have been available ; for notwithstanding this uncer- tainty, yet it was capable of being rendered certain by the subse- quent act of the parties, if not by the act of the vendor alone. For instance, if one grant me three acres of wood toward the north side of his wood, this is a good grant and certain enough] Shep. Touch. Tit. Grant, page 250. So if one be seised of two acres of laud, and he doth lease them for life, and grant the re- mainder of one of them, but doth not say which, to J. S.; in this case if J. S. makes his election, as to which he will have, the grant of the remainder to him will be good : or if a man having six horses in his stable, grants me one of them, without saying which, I may choose which I will have ; and having made my election, and not before, the grant is good. See Shep. Touch. Tit. Grant, page 251 : Perkins, sec. 74, 76. According to the principles of these authorities, the location of the land granted by the deed, was reduced to certainty afterwards, by the act of the parties in setting it off by metes and boundaries, and by the act of the grantee in taking possession of it in the lifetime of the grantor, by and with his consent. But, still, notwithstanding the Court erred in their instruction to the jury as to the nature and effect of the deed, it becomes necessary *to inquire, whether any injury could arise r*qio-i therefrom to the plaintiffs in error, for unless they may *- have been prejudiced by it with the jury; it is not sufficient cause for reversing the judgment. The effect 'of the charge of the Court was to induce the jury to consider Lafferty as a tenant of the land only from year to year, in place of being a tenant thereof in fee simple. Now I am utterly unable to perceive any benefit that the plaintiffs in error could have derived from a direction of the Court to the jury, that the deed passed a fee simple estate in the land to Lafferty, that they were not entitled to claim in the case of its creating only a tenancy from year to year. Admitting the distinction taken by the counsel for the plain- tiffs in error, between a tenant in fee and a tenant from year to year, to exist in favor of a bona fide purchaser for a valuable consideration, still with what propriety could the counsel ask the Court to assume the fact, contrary as I conceive, to the testimony of the witnesses on both sides, that Krider was such a purchaser ; and to instruct the jury that the title of Lafferty must, therefore, give way to him. This, had the Court done so, would not only in effect have been a withdrawal of the decision of a matter of fact from the jury, but would have been a decision of it by the Court, contrary to a body of evidence, which went to prove very clearly, that the fact was otherwise. Though Lafferty had never put his deed on record, yet it appears from the testimony of the 318 SUPREME COURT [Dec. Term, (Krider v. Lafferty.) witnesses of both parties, that he had been in the actual posses- sion and enjoyment of the acre of land from the year 1816 to the time of the trial, and of course was in the actual possession thereof, at the time Krider became the purchaser. When Laf- ferty bought, it was meadow, and part of a larger tract of land, owned by John Lentz at the time. Lafferty, it seems, was a basket-maker; and immediately after his purchase, the ground being set apart from that owned by Lentz, he took possession of it, planted it with willows, for the purpose of supplying himself with materials to carry on the business of his trade, and continued to occupy it, growing willows upon it, and cutting them every year at the proper season. This visible change in the appear- ance and occupation of the ground could not well fail to attract the notice of the neighborhood ; and hence it would seem, that all the witnesses who had resided within the same, for any length of time, had become acquainted with Lafferty's occupation of the ground. His possession then being, sufficiently distinct to be notorious, was sufficient to put Krider upon his inquiry, as to the right, under which Laffe/ty held the possession of the land ; and being sufficient for that purpose* was good notice in equity.* Smith v. Lowe, 1 Atk. 490 ; Sug. Vend. 743. This case, as presented by the evidence, is not like the case of Billington v. Welsh, (5 Binn. 129,) to which it has been compared by the counsel for the plaintiffs in error. Welsh had never had the fifty acres f land? which he alleged he bought of *Turner, laid off by survey, or separated in any way from the residue of Turner's land. Turner had erected iron-works on his part of the land, and various dwelling-houses and other buildings for the accommodation of the persons in his employ, and for carrying on his business : with which the buildings and improve- ments of Welsh, to the eye of the spectator, were apparently connected, and seemingly formed a part thereof; so that there was no distinct unequivocal possession of the land by Welsh, as there has been here by Lafferty. Under such circumstances it is obvious, that it would have been erroneous on the part of the Court, and have been doing great injustice to Lafferty, to instruct the jury as requested by the counsel for the plaintiffs in error. They might have made a question as to what would amount to notice to Krider, of the right of Lafferty to tjie land ; and whether such facts and circumstances had been proved as were equivalent to it ; but it "would seem as if they were unwilling to encounter it; and wished to have it assumed as being in favor of their clients. The charge of the Court then, in regard to the nature and effect of the deed, though erroneous, yet being more favora- *5 Watts & Sergeant, 429 ; 2 Harris, 116. 1835.] OF PENNSYLVANIA. 319 (Krider v. Lafferty.) ble to the plaintiffs in error, as we conceive, than their counsel had any right to claim, does not furnish a sufficient ground for reversing the judgment. As Lafferty acquired a fee simple estate in the acre of land, on which the trespass is alleged to have been committed, by the deed from Lentz to him, the questions embraced in the 3d and 4th points submitted by the counsel for the plaintiffs in error, to the Court below, were not material to the issue, and, therefore, require no further notice. In regard to the 5th point ; we think there was no ground what- ever for asking the Court to instruct the jury, as was done by it, that in case they found for the plaintiff below, the damages ought to be merely nominal; as the trespass committed, if any, was unintentional. Krider, one of the plaintiffs in error, under whose authority the others acted, being notified expressly by Lafferty of his right to the land and the willows, persisted in going on with the trespass and taking the willows away, after they were cut, in place of tendering amends for the injury done. It was certainly not an unintentional trespass, but one of design, committed under the color of right, which has been attempted to be vindicated throughout: Lafferty, besides the loss of his property, must have been put to considerable expense in asserting and establishing his right : and I am, therefore, not satisfied,. but it Avas a proper case enough, to be left by the Court to the jury, to decide whether damages beyond the value of the willows taken, and the injury done, if any, to the freehold, ought not to be given: nominal dam- ages, merely, were out of the question ; for it would have been error as it appears to me, in the Court, to have suggested less than compensatory. In regard to the sixth point; Lafferty being held to be the owner *of the land, on which the willows grew and were cut ; and being in the actual possession of it, there can be no question, but he had a right to allege in his declaration, in addition to the breaking and entering of his close, the cutting, taking and carrying away of the willows there found growing ; and having alleged it, it was competent for him to prove it, if he could ; and if he proved it, he was entitled to recover damages, equal to the full value of the willows at least, as well as for the injury done to the freehold ; hence the Court committed no error in their an- swer to this point, that could injure the plaintiffs in error. The judgment is affirmed. Cited by Counsel, post 423 ; 2 Wharton, 108 ; 3 Id. 410 ; 5 Id. 106 ; 2 Watts & Sergeant, 113, 311 ; 4 Id. 18 ; 6 Id. 470; 7 Id. 45 ; 8 Id. 68, 93. 260 ; 1 Barr. 209 ; 1 Harris, 47 ; 11 Id. 128 ; 10 Casey, 448 ; 2 Wright, 77 ; 3 Wright, 481 ; 5 P. F. Smith, 511. Cited by the Court, 7 Watts, 272 ; 5 P. F. Smith, 375. Cited by Kennedy, J., 4 Wharton, 275. 320 SUPREME COURT. [Dec. Term, [PHILADELPHIA, FEBRUARY 6, 1836.] CAMMANN against HIND. Affidavits to hold bail made by the plaintiff (residing in New York,) and his clerk in Philadelphia, which set forth that the defendant was indebted to the plaintiff in a certain sum, "part of which" was for money lent and advanced by the plaintiff to the defendant, and "the rest of the prin- cipal siim" was due "for the balance which the defendant owes the plaintiff on settlement, in transactions in which the plaintiff, by the de- fendant's request, and as his agent, made purchases and sales for the defendant, but in the plaintiff's name, by which he stands indebted to third persons, and the defendant is indebted to him in the said sum ; the precise amount and extent of which balance cannot be stated now, be- cause the defendant suddenly left New York, without coming to any settlement, &c.," and that the defendant, on being required to pay, did not deny the debt or the amount : held to be sufficient. AN action on the case was brought by Frederick W. Cammann against Edward Hind, to March Term, 1836, of this Court, and bail demanded in $30,000. A rule to show cause of action, and why the defendant should not be discharged on common bail, having been obtained, returna- ble this day ; the following affidavits were now produced on the part of the plaintiff: "City and County of New York, ss. Frederick W. Cammann being duly sworn, saith that Edward Hind of the United Kingdom of Great Britain and Ireland, is r* f -?2n justly *and truly indebted to deponent, for money paid, J laid out, and expended for the use of said Hind, and for services, and stock in incorporated companies, actually trans- ferred at the instance and request of said Hind, in the sum of thirty thousand dollars or thereabouts, as this deponent has not been able at this time to ascertain the amount of such indebted- ness within a dollar, but that the same is very near such amount over or under. FRED. W. CAMMANN." * Henry Meigs of the City of New York, attorney in fact of Frederick W. Cammann, plaintiff above-named, on oath declares, that Edward Hind, defendant, held to bail in this action, is justly and truly indebted to said plaintiff, in the sum of twenty-five thousand dollars and upwards, without reckoning interest ; part of which sum is due for money lent and advanced by the said plaintiff to the said defendant at his request, and the rest of the said principal sum is due for the balance which the said defendant owes the said plaintiff on settlement of accounts, in transactions, in which the plaintiff, by the defendant's request and as his agent. 1835.] OF PENNSYLVANIA. 321 (Cammann v . Hind. ) made purchases and sales for the defendant, but in the plaintiff's name, by which he stands indebted to third persons, and the de- fendant is indebted to him in the said sum, the precise amount and extent of which balance cannot be stated now, because the defendant a few days ago suddenly left the city of New York, where he was a resident, without coming to any settlement with the plaintiff. Deponent being a clerk in plaintiff's counting house, was therefore dispatched by him to follow defendant to Philadel- phia with power of an attorney to bring him to a settlement. While in plaintiff's counting house, deponent was privy to the transactions and dealings between plaintiff and defendant, and the latter' s indebtedness to the former, as aforesaid, is within depo- nent's personal and actual knowledge. On his arrival in Phila- delphia, deponent waited on defendant, and required him to pay from fifteen to twenty thousand dollars, on account of what de- fendant owes plaintiff. Defendant did not deny the debt or the amount, but said that he had not the means of paying it ; where- upon, deponent caused him to be held to bail in this action. De- ponent further adds, that defendant is a foreigner, not a citizen of the United States, nor likely to remain in this country, now tran- siently in Philadelphia, having suddenly left New York as afore- said, where he has resided about two years last past ; that, as de- ponent understands and believes, defendant has credit for consider- able means in England, where" he comes from ; that if held to bail in this action there is a probability, but if not held to bail in it, there is no probability of plaintiff's recovering the debt due to him, by the defendant as aforesaid. H. MEIGS, Jim." *Mr. BrasJiears for the defendant, objected that these r* 099-1 affidavits did not bring the case within the 5th section of - the 4th Rule of this Court, which requires " a positive affidavit of a real subsisting debt." The plaintiff declares in his affidavit that he has not been able to ascertain the exact amount of the indebtedness, nor does he distinguish, as he ought to have done, between his claim for money paid, &c., and that arising from stock transactions. The latter are too vaguely stated in both affi- davits to authorize a holding to bail. The liabilities to third per- sons mentioned in the affidavit of the clerk, ought to have been particularly set forth ; besides, the affidavits are in a measure contradictory, since the first speaks of services rendered, and the last confines the claim to money lent and advanced, and liabilities to third persons for purchases and sales of stock. But, by THE COURT, (without hearing Mr. O. J. Ingersoll, for the plaintiff.) These affidavits taken together make out a suffi- 322 SUPREME COURT [Dec. Term, (Kirkham c. Sharp.) cient case, to justify us in refusing bail. It is not necessary to spread out the particulars of the indebtedness, in an action like the present. Besides, it appears that the defendant has acknowl- edged himself to be indebted to the plaintiff in a sum, which authorizes the bail demanded. Rule discharged. [*323] *KIRKHAM against SHARP.* CASE STATEDv The owner of a large lot of ground situate on the east side of Fourth street, in the City of Philadelphia, granted to A. in fee a part of the same, being a lot 25 feet in front, and in depth about 100 feet ; bounded east by a brick stable, standing in the line of the lot ; "together with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon a 4 feet 6 inches alley, extending in and about 45 feet from 4th street, to be forever left open between the lot hereby granted, and the house now occupied by B.," reserving a perpetual ground rent, with a covenant by A. to pay the same, and to build within a limited time a good three story brick house upon the lot thus granted to him. A. erected a house with back buildings, extending to the eastern boundary of the lot. Several years afterwards, C. purchased the whole of the large lot with the buildings on it, includingthat occupied by B ., but ex- cepting the house and lot belonging to A. The deed to C. described A.'s lot as being one of the boundaries, and contained the following clause, "Subject to the full and free privilege and authority of ingress, egress, and regress, granted by, &c. (reciting the deed to A.) by, through, and upon a 4 feet 6 inches alley along side of the north line of (A 7s) lot, and extending in and about 45 feet from Fourth st. to be forever left open between (A.'s) said lot and the house included in this grant, for- merly occupied by B." &c. There was an alley leading into Market street, and another passage into Fourth street, communicating with the stable yard. Held, that C . had no right to continue the 4 feet 6 inches alley to the stable wall, and thence pass from the stable into Fourth street, along the alley on the north side of A.'s house. THIS was an action on the case brought in this Court by Wil- liam Kirkham against John Sharp, junior. By agreement the following case was stated for the opinion and judgment of the Court. "By indenture, bearing date the 20th day of April, 1767, Anthony Morris and wife granted and conveyed to John Litle and his heirs, a large lot of ground on the east side of Fourth street, between Market and Chestnut street, in the city of Phila- *For the report of this case, which was decided in 1832, I am indebted to the kindness of John Cadwalader, Esq. REP. 1835.] OF PENNSYLVANIA. 323 (Kirkham . Sharp.) delphia, with the easements and appurtenances therein mentioned. In this deed the lot was thus described : "Beginning at Fourth street, at south corner of C. Brockden's lot, (1), E. along Brockden's lot 104 feet, to the extent thereof, (2), N. along back end thereof 34 feet 4 inches, (3), E. along end of lot formerly of said A. Morris, now Adam Eckart, to a 3 feet alley leading into Market street, (4), S. along said alley 26 1 feet, to the end thereof, (5), E. 3 feet to lot of Francis Allison, now Charles Thomson, *(6), along said lot S. 179 feet r*QO4l 4 inches, to lot of John Martin (7), W. along Martin's lot 125 feet 8J inches, to Fourth street, (8). N. along Fourth street 171 feet 6 inches, to beginning. Together with the use of the said 3 feet alley, leading into Market street." DRAUGHT ANNEXED TO THE DEED. Fourth street. Martin. 3. 7% inches purchased b; Eastburn of Anthony Morris. 126 feet 8% inches. 171 feet 6 inches Anthony Morris sold to John Litle goqoui ^ !)aoj gjj i 1 100 feet to Market street. 34.4 CO 3 feet alley. Francis Allison, now in the tenure of Charles Thomson. By indenture, bearing date the 4th day of February, 1792, the said Litle and wife granted and conveyed to Robert Smock and his heirs, a part of the said large lot, with the easements and appurtenances therein mentioned. Viz. " A lot on the east side Fourth street, between High and Chestnut streets, containing in front on Fourth street 25 feet, and in depth about 100 feet more or less. Bounded east by a brick stable standing in line of the lot, south by Litle's other ground, west by Fourth street, and north by ground now or late of Litle. " Together also with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon, a four feet and six inches alley, extending in and about forty-five feet from Fourth street, to be forever left open between the lot hereby granted, and the house now occupied by Miss Clinton; also, 324 SUPREME COURT [Dec. Term, (Kirkbam e. Sharp.) with tit e full and free privilege of the use of the pump of water being in the yard of the aforesaid house, and about on the line between the two lots" Reserving a ground rent, with a covenant of grantee to pay the rent, and within five years to build on the lot a good three-story brick house. The premises thereby granted and conveyed to Smock, and the easements and appurtenances then or since belonging to them, are uow the property of the plaintiff, who holds them under Smock r*32'T ^7 a * chain of conveyances. In the year 1793, Smock erected upon the last mentioned premises, the three-story brick dwelling, No. 7, South Fourth street, with two story brick back-buildings, running eastward. These back build- ings, extend to and adjoin the wall of the stable mentioned in the deed to Smock. From the time of the erection of the house No. 7, until now, it has always been inhabited. The said John Litle remained the owner and in possession of all the remainder of the premises granted and conveyed to him by Anthony Morris and wife, until the time of his death. On the 21st day of December, 1827, by indenture bearing date that day, James Ross, administrator with the will annexed of the said John Litle did grant and convey to John Sharp, the defend- ant, and John W. Downing, all the premises granted and con- veyed by the said Anthony Morris and wife to the said John Litle, except that part conveyed to Smock in 1792, in the man- ner therein expressed. This conveyance was accepted by the de- fendant and Downing. This deed reciting that Litle had died seised of the Indian Queen Hotel and messuages, and the lot thereto belonging, having first made his will, &c., directing his executors after his widow's death, to sell his real estate that she and all the execu- tors are dead, and the grantor administrator cum testamento an- nexo, pursuant to act of 12th March, 1800, conveys the prem- ises according to the description in the deed of 1767, from Morris to Litle, to the end of the fifth course and distance, then proceeds with the description as follows "(6) along said lot south 179 feet 4 inches to a lot formerly of John Martin, now of said John Sharp, Junior, (7} west along same 50 feet 8| inches to a strip 3 feet wide, conveyed by Litle on 4th February, 1768, to John Martin, (8) north, by east end of that strip 3 feet, (9) west, along north line of that strip,75 feet to Fourth street (10) north by Fourth' street 116 feet 6 inches to " South line of a Jot 25 feet wide, which the said John Litle, by deed dated the 4f/t day of February, A. D. 1792, sold and conveyed to one Robert Smock, now belonging to William Kirkham, thence eastwardly by the south line of Kirkham 1 s said lot about 100 feet, more or less, to a brick stable included in this grant." (12) north by rear end of 1835.] OF PENNSYLVANIA. 325 (Kirkham t>. Sharp. ) Kirkham's lot, 25 feet, (13) west, by north line of Kirkham's lot, about 100 feet, to Fourth street, (14) north, along east line of Fourth street, and bounding thereon about 25 feet 6 inches more or less, to beginning, subject to the full and free privilege and authority of ingress, egress and regress, granted by the said John Litle, by the deed aforesaid, to the said Robert Smock, his heirs and assigns,by, through and upon a 4 feet 6 inches alley, along side of the north line of Kirkham' s said lot, and extending in and about 45 feet from Fourth street, to be forever left open between Kirkhani* s said lot and the house included in this grant, formerly occupied by Miss Clinton, and now occupied by Mrs. Weeks, and also subject to *thefull and free privilege r*vc)G \ in the owners of Kirkham'' s said lot, of the use of the L "" J pump of water being in the yard of the last mentioned house, and about on a line between the two lots, and also granted by the said John Litle to the said Robert Smock, Ms heirs and assigns, by the deed aforesaid" This deed also recited, that the premises thereby granted and the strip sold by Litle to Martin, and the 25 feet lot sold by Litle to Smock, were the entire lot which Morris and wife conveyed to Litle, and conveyed the same, "together with the full and free privilege and authority of ingress, egress and regress by, through and upon the aforesaid 3 feet wide alley, leading into High or Market street aforesaid." Habendum to grantees in common, in fee, in equal parts, subject to a paramount ground-rent, and "to all the covenants made by the said John Litle to the said Robert Smock," in the deed of 4th February, 1792. The premises granted and conveyed by James Ross to the de- fendant and John W. Downing, were at the time of the convey- ance from John Litle and wife, to Robert Smock, in the year 1792, used and occupied as follows, to wit: On that part of the said premises which lie north of the lot of the plaintiff' there was then erected a three story brick house on the front of the lot adjoining Fourth street, being the house No. 5, south Fourth street, and in the rear of this house there were then erected back buildings which extended eastward to the said stable wall. The back buildings faced the back buildings of the plaintiff. This house, No. 5, is the same which is mentioned in the deed to Smock as being then occupied by Miss Clinton. It has been occupied ever since as a dwelling house. That part of the premises Avhich lies east of the lot occupied formerly by Miss Clinton, and east and south of the plaintiff's lot, was occupied as the Indian Queen tavern and its stables and appurtenances. The Indian Queen tavern stands, and did in 1792 stand on the south-western extremity of the lot granted and conveyed by Morris and wife to Litle ; there was a dwelling VOL. i. 22 326 SUPREME COURT [Dec. Term, (Kirkham c. Sharp.) house adjoining the tavern on the north ; an archway, sufficiently large to admit carriages, was taken from the southern side of this last house and adjoining the said tavern, which archway led into the yard and to the stables of the said tavern and back of said stables to a vacant part of said larger lot used as a stable yard, of which this archway formed an outlet. The space of feet on Fourth street adjoining the plaintiff's house and lot on the south was vacant and not built on till the year . The other ground fronting on Fourth street was all built on at the date of the con- veyance from Litle and wife to Smock. From the vacant part of the said larger lot back of the said stables there was an alley leading northwardly into Market street, which is still open, and is the same alley mentioned in the conveyance from Morris to Litle. The western wall of the stable beginning at about a *ft' northward of the north-east corner of the lot for- merly occupied by Miss Clinton and running parallel to and about one hundred feet distant from Fourth street, extends southerly more than one hundred feet. From before the convey- ance to Smock in 1792, until the autumn of 1828, there never was any door, window, light, or other opening of any sort in that part of the said wall which bounds the said premises No. 5, and No. 7. The wall prevented all access from that quarter to the premises of the plaintiff, or the premises occupied as aforesaid, by Miss Clinton. During this period, the only means of approach to either of these premises, was from the side of Fourth street. From the conveyance to Smock in 1792, until the autumn of 1828, the alley leading into Fourth street, four and a half feet wide, by forty-five feet deep, mentioned in that conveyance, was always used uninterruptedly by the owners and occupiers of the said houses, No. 7, and No. 5, South Fourth street, for the pur- poses of those two houses respectively, and of the families inhab- iting the same, as a footway, and for no other purpose, and during the whole of that period, was never used by any other person for any purpose. At the eastern end of the main building of each house, was a private gate leading into the alley. The alley ex- tended no further back eastward than these gates, where it AV as stopt up by the fence of the said lot formerly occupied by Miss Clinton, which fence ran across the head of the alley four and a half feet, to the fence of the lot of No. 7, at the distance of about forty-five feet from Fourth street, and thence, the two fences being there united, and forming one division fence from the junc- tion, ran eastwardly about fifty-five feet to the western wall of the said stable. On and since the 1st day of October, 1828, the defendant has passed on foot, in, upon, over and across the said alley, four and a half feet wide by forty-five feet, backward and forward to and 1835.] OF PENNSYLVANIA. 327 (Kirkham v. Sharp.) from that part of the premises granted by Morris and wife to Litle, which lies easterly from the said stable wall, without the leave of the plaintiff, and has also passed with a horse, leading the said horse in, upon, over and across the same alley backward and forward, to and from that part of the said premises which lie east of the said stable wall, without leave of the plaintiff. To enable himself thus to pass to and from said part of the premises which lie east of said stable wall, he lengthened the said alley four and a half feet wide by forty-five feet, by removing that part of the fence of the lot formerly occupied by Miss Clin- ton, which had previously stopped the alley on the eastward, and extending the fence from the gate of the lot formerly occupied by Miss Clinton, on the ground which was granted to defendant and John W. Downing, by James Ross aforesaid, parallel to, and four and a half feet equidistant from the former division fence, to said stable, then *breaking a passage through the sta- r*ooQ-i ble Avail, and making the same with the alley extended L as aforesaid, form one continuous passage and thoroughfare be- tween Fourth street and that part of the premises granted by Morris to Litle, which lies east of the stable wall aforesaid, thus enabling himself, the said defendant, his heirs and assigns, owners and occupants of the said larger lot, and of that part of the said premises which lies east of the said stable wall, to use the said alley as aforesaid, without the plaintiff's leave obtained in that behalf. It is agreed that the several deeds and writings aforesaid, be in evidence, and that from the same and from the facts before stated, the court may infer such matters and things, as, in their judgment, a jury ought to infer from the said deeds, writings and facts. The question submitted to the Court is, whether in point of law the defendant has, by reason of the premises, interfered with or obstructed the said alley, or the use or enjoyment thereof, by the plaintiff, as the plaintiff was entitled to use and enjoy the same. If the Court should be of opinion that the defendant had the right to use the said alley leading into Fourth street, to pass either on foot, or with a horse or horses, over the same, to and from that part of the premises granted and conveyed by Morris and wife to Litle, which lies east of the said stable wall, then judgment is to be entered for the 'plaintiff generally. If the Court shall be of opinion that the defendant had a right thus to pass on foot, but not to lead a horse over the same, then a special judgment is to be entered for the plaintiff accordingly. If the Court shall be of opinion that the defendant had a right thus to pass either on foot or with horses, at his pleasure, then judgment is to be entered for the defendant. SUPREME COURT [Dec. Term, (Eirkham t. Sharp.) If judgment should be entered in favor of the plaintiff, he is to be at liberty to bring a new action for any damages he may have sustained in consequence of any interference with, or ob- struction of the use of the said alley by the defendant, since the 19th of March, 1830 ; it being agreed and understood, that the present action and case stated, are to have the same effect as if the same had been commenced by an agreement like the present, filed on that day. * 'J'hcfoNowing Diagram exhibits the situation of the alley and the adjoining ground : Market street. t ~ _ < i _ House and lot formerly of Miss Clinton. K Alley 46 feet deep | v> r House and lot of Kirkham. i . * p - ^ o- - 5" J - sg 5 a 2 P r a The dotted line shows the continuation of the alley. The case was argued on the 10th and llth February, 1832, by Mr. Cadwalader, and Mr. Chauncey, for the plaintiff ; and by Mr. J. M. Head, and Mr. Bouvier, for the defendant. Arguments for the plaintiff ' : A right of way or other incorporeal right exercisable in lands, is a species of property wholly independent of the soil or land in which it is exercisable, and of the ownership of such soil. It may be enjoyed to the entire exclusion, and therefore d fortiori, to the partial exclusion of the owner of the soil. This is true, whether the exclusion arises from grant or from prescription. Its capa- city to arise from prescription, is a proof that there would be nothing unreasonable in construing a grant as implicative of an intention to exclude the owner of the soil from the benefit of the right granted. Co. Lit. 122, (a,) and Hargr. note 6 & 7 of this folio ; 2 Rol. Abr. 267, Prescription L. ; Hawks v. Molyneux, 1835.] OF PENNSYLVANIA. 329 (Kirkham v. Sharp.) (1 Leon. 73 ;) Potter v. North, (1 Levinz, 268 ;) Hopkins v. Robins, (Pollexf. 13 ;) G-ri*ell v. Leigh, (Sir W. Jones, 12.) The owner of the way, and the owner of the soil having each an abso- lute property, the one in the way, the other in the soil subject to the way ; each is entitled to use what is thus his own. But the right of each is subject to the restriction implied in the maxim, sic utere tuo ut alienum non Icedas. Hence it results that the owner of the soil cannot make use of the soil in any manner which causes an obstruction of the way. Then the question is, what amounts to an obstruction of the right of way ? *The r*qo/\-i law furnishes the answer. Any thing by means of which L the use of the land for the purposes of the way, is or may be rendered less beneficial. An actual corporeal impediment is by no means, an essential part of the definition of an obstruction of a private way. Any unauthorized walking over it, is a construc- tive obstruction of it, for which an action lies. The chief benefit of a private way, consists in its privacy. The fewer other persons who use it, the more ample and beneficial is its enjoyment, actual or potential, to the man who has the right of way. And with respect to those who have the right to use it in common with him, the fewer the places to and from which it serves as a passage, and the nearer such places lie to the way itself, or to one another, the more ample and beneficial is its enjoyment, because it is by so much the more private, and less liable to interruption. If a man who has a right of way over land, for the purpose of passing from A. to B., uses the land for the purpose of passing from A. to C-, it will be no excuse for his doing so, that in going from A. to C. he passed through B. and therefore really went from A. to B. That an action of trespass against him who has the way, will lie in such a case, at the suit of the owner of the soil, appears from 1 Rol. Abr. 391, pi. 1, 2, 3 ; Howell v. King, (1 Mod. 190 ;) Webster v. Bach, (3 Keble, 848 ; Freem. 247, s. c.) And that under similar circumstances, an action on the case will lie against him, at the suit of one who has himself noth- ing but a mere right of way, appears from Laugliton v. Ward, (1 Ld. Ray. 75 ;) 1 Lutw. Ill, s. c. ; Nels. Lutw. 41, s. c. ; 3 Ld. Ray. 85, pleadings, s. c. The last case proves that such a use of the land, which is the subject of the way, is an obstruction of the right of way, for which an action will lie at the suit of one who has nothing more than a right of way. It may be conceded that the same strictness does not apply as against the owner of the soil, unless he has expressly or im- pliedly limited or restrained the extent of his own right of pas- sage over the land, which forms the subject of another's right of way. But, if he has expressly or impliedly limited it, he can have no right of passage beyond the bounds of the restriction, 330 SUPREME COURT. \~Dec. Term, (Kirkham t>. Sharp.) which he has imposed upon himself. Such a restriction is in this case imposed, by the terms of the grant of way, in the deed^of February 4th, 1792, from Litle to Smock. This deed defines the limits of the alley, and restrains both parties from using it for any other purposes than those. which might be connected with the use and occupation of the two houses immediately adjoining it. (Here the counsel went into an elaborate argument upon the construction of the deed, as governed by the terms of the particular clause, in which the alley is mentioned, and other clauses contained in it, as applied to the particular property in question.) It is true, that at the date of this deed the grantor owned the adjacent property, to which the defendant would now use the alley as a passage. But the description in the deed of 1792 r*oo-in *shows that for all purposes, connected with the lot con- veyed to Smock, this adjacent property was as com- pletely severed from the two houses bounding on the alley, as if it had then belonged to a stranger. Both of them were separated from, and deprived of all access to it by the wall of the stable called for in the deed as a boundary ; and the restriction of the depth of the alley to 45 feet from Fourth street, less than half the distance of this stable wall from the street, negatives the pos- sibility of an intention in either party, that the alley should ever serve as a passage to and from property beyond that wall. It ia as a passage to and from the property beyond the wall, however, that the defendant has used the alley. This is a use of it contrary to the plain meaning of the deed of 1792. This is a strong case for the application of the maxim: Verbafortius accipiuntur con- tra proferentem. The grantee, Mr. Smock, took the lot under a covenant in the deed, which compelled him to erect a brick house on it. He went to the expense of building this house, adapting his plans of course to the precise description of the alley con- tained in the deed. The true construction of the deed is, to inter- pret it as though the house covenanted for, had been already built, in the same manner, in which it was afterwards built in pursuance of the covenant. The grant of the way is evidently designed to place the grantee of it, quoad his house, on a footing at least equal witli the footing on which the grantor was himself to remain, quoad the privilege granted as to the adjoining house. This is the import of the words full and free, annexed to the description of the privilege granted ; as to which see Smith v. Kempe, (2 Salk. 687.) The counsel in the course of their argu- ment under this head commented particularly upon fivans v. Desilver, (8 Serg. & Rawle, 92, 96,) and Watson v. Bioron, (1 Serg. & Rawle, 227, 230. The length of nonuser and nonclaim of user by the defendant, and those under whom he holds, of the right which he now asserts, was a point also made by the plain- 1835.] OF PENNSYLVANIA. 331 (Kirkham V. Sharp.) tiff's counsel who, under this head of the argument, endeavored to distinguish the case from Butz v. Jhrie, (1 Bawle, 218 ;) this heing not a case of mere nonuser on the one side, but of nonuser during a period of continued, active, exclusive user on the other side. Wynkoop v. Burger, (12 Johns, 222 ;) Comstock v. Van- derson, (5 Pick. 163, 167.) At all events the plaintiff is entitled to judgment on the ground, that the defendant passed over the alley with a horse. Nothing can excuse the conversion of a footway into a horseway even by the owner of the soil. It is a public nuisance for a man to ride on the footway of a public highroad. The rules of pleading re- quire that the character of the way, whether footway or horse- way or both, be mentioned on the record. Allan v. Brounsall, (Yelv. 163-4;) Brownl. 215-6, s. c.; 3 Ld. Raym. 85. The necessity of such an averment is a decisive proof that the two species of way are wholly distinct and not to be confounded. * Arguments for the defendant: If the plaintiff's point could not have been sustained L in 1792, immediately after the deed to Smock, it cannot have de- rived strength from any thing which has since occurred. Neither the mode in which his house was afterwards erected, nor the length of time during which the alley was afterwards suffered to remain in its original situation, nor the greater or less degree of con- venience or inconvenience from subsequent circumstances, can avail him in any wise. [This the Court distinctly granted to the counsel.] Then the case must turn upon the clause respecting the alley contained in the deed of 1792. This contains no express restric- tion of any sort against the grantor. It merely gives a right of passage to the grantee. Now, whatever was not transferred away by the grantor, remained in him as of his former estate. Before the deed to Smock, the strip which forms the alley was the grant- or's own, to use as he pleased, on foot or with horses, to pass and repass to and from what place or places he pleased. The same right remained in him afterwards, to use as he might please, so that he did not make any actual obstruction, in a corporeal sense, of the way. If he left the space of the alley open at all times, when the use of it for the plaintiff's house might be necessary or con- venient, it does not belong to the plaintiff to complain what use he made in other respects of land which was his own. The con- trary doctrine would be inconvenient, and in this city would be restrictive of the improvement, and prejudicial to the enjoyment of property. It is a highly artificial doctrine which recognizes the possibility of a mere constructive obstruction of an easement or passage by means which oppose no corporeal impediment to 332 SUPREME COURT [Dec. Term, (Kirkham t?. Sharp.) the use of it. The cases in 1 Ro. Ab.; 1 Mod. 3 ; Keble Freeman, were all cases in which the complaint was sustained at the suit of the owner of the soil in an action of trespass. Laughton v. Ward, (1 Ld. Raym. 75 & Lutw. Ill,) it is true, was an action by a man who had only a right of way ; but it was brought not against the owner of the soil, but against another person who had himself only a mere right of way. The case, therefore, is not in point against the owner of the soil. In favor of the owner of the soil the cases apply, in which it has been held as to public roads, that the owner of the land over which they pass, retains all his former rights, subject only to the easement enjoyed by the public. Nothing short of an actual impediment is considered as the obstruction of a highway. In the present case we contend, that it was competent to the defendant to con- vert the alley in question into a thoroughfare from a manufactory situated elsewhere, or in short, if he pleased to convert it into a public highway, provided he left the plaintiff reasonable means of egress and regress over the alley, at suitable times, to such ex- tent as the purposes of a dwelling-house might require. A multo fortiori, he was entitled to use it for the purpose of passing and r*qqq-i repassing to and from land of his own, part *of the J same property which originally included the plaintiff's own lot, and belonged to the grantor, under whom the plaintiff claims, at the time when his own lot was granted to the person under whom he holds it. The defendant's counsel cited the following authorities : Stack- pole v. Ely, (16 Mass. 33 ;) Purdy v. Chandler, (6 Mass. 454 ;) Robins v. Bond, (1 Pick. 122;) Cortelyou v. Van Brunt, (2 Johns. 357;) Stark. Ev.,Pt. 4, 1679, 1680; G-oodtith v. Alker, (1 Burr. 133, 143, 146;) Russell v. Jackson, (2 Pick. 574;) Matthew's Pres. Ev. 325. The opinion of the Court was delivered by GIBSON, C. J. The sum of the few authorities which bear on the point before us, is given in Cruise's Digest, Tit. 24, 15, where it is said that the use of a way must be according to the grant or the occasion of it, and not exceed it ; so that a right of way over another's ground to a particular place will not justify the use of it to go beyond that place. For this is cited Howel v. King, (1 Mod. 190 ;) and Lawton v. Ward, (1 Ld. Raym. 75 :) which bear a considerable resemblance to the present case. In the former of them A. having a right of way over B.'s ground to Blackacrc, drove his cattle not only to Blackacre, but to a place beyond it; and it was argued that when they were at Blackacre he might drive them whither he would. On the other side it was urged, that if such were the law, A. might purchase 1835.] OF PENNSYLVANIA. 333 (Kirkham v. Sharp.) any indefinite number of acres adjoining Blackacre, by which the grantor of the way. might be entirely deprived of the benefit of his land ; and that as prescription pre-supposes a grant, it ought to be continued according to the intent of its original creation ; to which the Court assented, and gave judgment accordingly. Were the defendant the grantee of an easement, this principle would be decisive of our case ; but he is the owner of the soil subject to an easement granted by his predecessor to the other side, and consequently the owner of all the ground, over which he passes in going from the street to the termination in dispute ; and the difficulty is to understand how an injury is done to the grantee by any use of the grantor's own soil, which is not an actual disturbance of the easement. I have found no authority for what struck me, in the course of the argument, as being a tenable position, that the grant of a way passes the whole use of it, except where a right of participation by the grantor is reserved in terms ; nor do I mean to intimate, that the law would be so held, were the question now to be decided. For myself, however, I may remark, that agreeably to the rule which requires a grant to be interpreted most beneficially for the grantee, a strong argu- ment might be made for the affirmative, inasmuch as exclusive enjoyment is more beneficial than mere participation, especially in a way which the grantee is to repair. In the absence of spe- cial provision in the grant, questions of this sort *must, perhaps, depend on the nature of the way and the de- gree of possession necessary to its enjoyment. But, not to insist on that, it is certain that the ungranted residue of a right of way may be annexed to a particular messuage or close, either by ex- press stipulation or necessary implication, according to the occa- sion of the grant. An instance of this might be found in the disposal of houses surrounding a court, originally destined to be a common avenue to them, in which it would be sufficiently obvious from the disposition of the property, that the right of way had been appended to the houses and not to the owner of them. By the act of laying out the ground as a court, it would be allotted to the houses intended to adjoin it, so as to pass with them as an appurtenance ; and the right of the owner would be correspond- ingly qualified by the nature of the use to which it was dedicated. Sales of the houses would successfully abridge it, till it were ultimately extinguished along with his property in the last of them, when the purchasers might, by common consent, bar the entrance against his person, notwithstanding his legal title, just as they might bar it against a stranger. During his ownership of but a part of the property, he would be entitled to no privilege that he had not originally annexed to it ; nor could his right to use the court as a thoroughfare to a messuage or close adjoining SUPREME COURT [Dee. Term, (Rirkham v. Sharp.) him on the further side, be greater than that of any of his gran- tees. Is not that the case before us ? The plaintiff and the de- fendant derive their titles respectively from the owner of a larger lot, of which the premises were parcel ; on the one extremity of which stood the Indian Queen tavern with its appendances, and on the other a house in the tenure of a Miss Clinton. This house was a distinct tenement, and bounded in the rear by the stable wall of the tavern. Of the ground between the house and the tavern, Smock, from whom the plaintiff derives his title, purchased a part for the site of a house, bounded in the rear also by the stable wall, and on the side next to Miss Clinton's house, by a line passing at a certain distince from it to the street, the inter- vening space, to the depth of the front building, being left open for an alley to be used in common. No part of the stable ad- joined the alley the entrance to it being from another street, and in the rear of the whole.. In this state of the premises Smock built the house owned by the plaintiff; and we have, therefore, two houses on an alley as the common easement of both, which was ostensibly designed in its creation to be subservient to no other part of the property ; for the blind wall of the stable, which was a durable structure, would indicate to the eye of a purchaser, that it was designed for a permanent barrier against admittance on that side ; so that in every material respect, the case corres- ponds to that of the houses on a court. It is plain, therefore, that to make the alley an appurtenance to what it was not at the time of the purchase, would be a fraud upon the contract. The intent of the parties is observable, however, not merely in the condition of the premises, as the *basis of the agreement, but in the terms of the conveyance. Smock was to have the full and free privilege of ingress, egress and regress ; to which end, the alley was to be perpetually open between the lot granted and the house reserved. This shows to a reasonable intent, that the enjoyment of the alley was to be by the tenants of the pre- mises particularly named ; that the grantor, though owner of the soil, reserved no right to the alley, but what was incident to the ownership of his house ; and that in this respect he put his right exactly on a footing with that of his grantee as a co-tenant. If so, the principle of Howell v. King and Lawton v. Ward is ap- plicable to it with decisive effect. But again, not to insist on the word " free," which was held in Smith v. A'empe, (2 Salk, G37,) to pass an exclusive right of fishery, the word " full " was evidently designed to signify not only a community, but an equality of enjoyment, both in the manner and the measure of it ; consequently if the defendant might use the alley as a way to his stable, by breaking through the wall, so might the plaintiff use it in subservience to any ad- 1835.] OF PENNSYLVANIA. 335 (Kirkham v. Sharp.) joining close, which it might happen that he could approach from the termination of the alley over his own ground ; and the princi- ple indicated in the two cases cited is, therefore, equally applica- ble to hoth. But the plaintiff's enjoyment, so far from being full in any sense of the word, would be actually hindered, if his ser- vants or children were exposed to the danger of being trampled upon by horses, or annoyed by the transportation of ordure. These Avould present an actual impediment to the free use of the alley secured to him by the conveyance. Having regard, then, either to the nature of the occasion or the terms of the grant, it it seems clear, that the alley was devoted to the ordinary pur- poses of the houses ; and that the defendant could not lawfully pass with his horses through it, or use it as a common footway to his stable. Judgment for plaintiff generally. Cited by Counsel, 6 Wharton, 310 ; 8 Watts & Sergeant, 469 ; 7 Barr, 475 ; 1 Jones, 185 ; 4 Casey, 111 ; 6 Wright, 421 ; 2 Ashmead, 218. Cited by the Court, 6 Wharton, 45, 207 ; 8 Watts, 440 ; 5 Watts & Ser- geant, 140, 143 ; 4 Barr, 487 ; 10 Id. 97 ; 11 Harris, 351 ; 2 Casey, 444 ; 9 Id. 149 ; 6 Wright, 66 ; 14 Id. 424. Followed, 7 Barr, 491. See also, 8 Barr, 390 ; 4 Casey, 184 ; 12 Wright, 183. END OF DECEMBER TERM, 1835. CASES m THE SUPREME COURT OP PENNSYLVANIA. EASTERN DISTRICT MARCH TERM, 1836. [PHILADELPHIA, MARCH 21st, 1836.] INGERSOLL against SERGEANT. 1. The statute of Quia Emptores, (18 Edw. 1, st. 1, c. 1,) never was in force in Pennsylvania. 2. A ground-rent in Pennsylvania, i. e. a rent reserved to himself and his heirs by the grantor of lands in fee, is a rent-service, and not a rent-charge. 3. A release of part of the land out of which such ground-rent issues, from the rent, does not extinguish the whole rent, but merely discharges the part released, and leaves the remaining part of the land subject to its due proportion of the rent. 4. A. being seised of a lot of ground in the City of Philadelphia, which was subject to a redeemable ground-rent of $351 per annum, on the 9th of October, 1818, conveyed the said lot to B. in fee, free and discharged from the rent ; and covenanted in the conveyance to extinguish the said rent, within the time limited in the original deed, or within any ex- tended t'me for extinguishing the same, and in the mean time to keep B. indemnified, &c. On the 18th of Octol>er, the holder of the ground-rent conveyed the same to C., who on the 6th of February, 1819, agreed, by endorsement on the deed, to extend the time of redemption for 10 years. On the 30th of April, 1819, B. conveyed to D. in fee, a part of the lot conveyed to him by A ., reciting that it was part of a large lot of ground, which A. by indenture bearing date, &c., granted and conveyed to him in fee, "clear of all liens and incumbrances whatsoever." On the 1st of May, 1819, C. by deed endorsed on the conveyance to D., in con- sideration of $1, released the lot conveyed to him from the payment of the said ground-rent, with a proviso, that nothing therein contained should be taken to impair his right to recover the ground-rent from the remaining part of the lot. On the 3d of May, 1819, C. by deed reciting the conveyance of the ground-rent to him, the agreement for extending 1836.] SUPREME COURT OF PENNA. 337 (Ingersoll v. Sergeant.) the time of redemption, and the release to D ., conveyed the said ground- rent to the defendant in fee. In point of fact, (though nothing ap- peared on the face of the papers to show it, ) the ground-rent was originally purchased *byC. with the money of A., and was held by him in trust for A. ; but the defendant had no noticeof the trust; Held, [*338] 1st. That the ground-rent was not extinguished by the con- veyance to C . in trust for A ., nor by the extension of the time for the re- demption of it. 2d. That B. was not estopped by the recital in his deed to D., so as to subject his remaining part of the lot to the whole ground- rent. 3d. That the entire ground-rent was not extinguished by the re- lease to D. ; but only so much was extinguished as was equal to the value of the lot conveyed to D., compared with the value of the whole lot. THIS was an action of replevin brought by Charles Jared In- gersoll, Esquire, against Mrs. Elizabeth Sergeant. The defend- ant avowed for rent in arrear ; and issue being joined, the case came on for trial before Rogers, J., at a Court of Nisi Prius held at Philadelphia, on the 9th of March, 1830, when a verdict was found for the avowant for $175, rent in arrear, subject to the opinion of the Court upon the whole evidence, upon the merits, without regard to the form of pleadings. The case was thus: On the 30th of September, 1811, John O'Connor, with Ann his wife, conveyed to Thomas M'llwham in fee, a lot of ground situate on the west side of Fifth street, at the distance of 93 feet 10 inches from the south side of Walnut street, in the city of Philadelphia, containing in front or breadth on Fifth street, 54 feet, and in depth westward 99 feet 6 inches ; reserving to the grantors and their heirs a yearly rent of $351, payable half yearly, viz.: on the first day of August and February in every year, and redeemable on the payment of $5850, within ten years from the date. On the 19th of September, 1814, John M'Cauley and Christina M'llwham (in whom the lot was then vested,) conveyed the said lot to Joseph Reed in fee, subject to the said yearly ground-rent of $351, payable to O'Connor and his wife. On the 9th of October, 1818, Joseph Reed and wife, by inden- ture of bargain and sale, reciting the preceding conveyance to Reed, subject to the said ground-rent, in consideration of $11,250, conveyed the same lot to Charles J. Ingersoll, (the plaintiff) in fee: Habendum to the said Charles J. Ingersoll, his heirs and assigns, "free and discharged from the aforesaid rent-charge, liens and incumbrances whatsoever." Then followed the usual covenant of special warranty, together with the folloAving cove- nant, " and the said Joseph Reed for himself, his heirs, execu- tors, and administrators, doth further covenant, promise and agree, to and with the said Charles J. Ingersoll, his heirs and assigns, by these presents, that he, the said Joseph Reed, his 338 SUPREME COURT [March Term, (Ingersoll t>. Sergeant.) heirs, executors or administrators, shall, and will, at his and their own proper cost and charge, well and faithfully extinguish the aforesaid yearly rent charge, of $351, within the time limited to extinguish the same, or within any extended time for extinguish- ing the same ; and in the mean time well and sufficiently save, defend, and keep harmless and indemnified, the said Charles J. r*qqo"i Ingersoll, his *heirs and assigns, from any charges, ' J claims or demands whatsoever thereof." On the 31st of October, 1818, Ann O'Connor, widow of John O'Connor, Ann Christiana O'Connor, and John M. Barclay and Margaretta his wife, (which Ann Christiana and Margaretta were the only children and heiresses of the said John O'Connor,) in consideration of $5850, conveyed the said ground-rent of $351 to John Sergeant, Esq., in fee. On the 6th of February, 1819, John Sergeant, by endorsement on the deed of September 30th, 1811, for himself, his heirs, executors and assigns, agreed to ex- tend the time for redemption of the said yearly rent charge, for ten years from that date. This instrument was acknowledged on the 4th of May, 1819. On the 30th of April, 1819, Charles J. Ingersoll, and wife, in consideration of $2500, conveyed to Jonathan Smith in fee, a part of the lot conveyed by Joseph Reed, viz.: a lot at the dis- tance of 74 feet 8 inches west of Fifth Street, containing in breadth, east and west, 24 feet 10 inches, and in depth, north and south, 45 feet. The recital in this deed was in the following words, "being part of a larger lot or piece of ground, which Joseph Reed of the City of Philadelphia, Esquire, and Maria C. his wife, by indenture bearing date the 9th day of October, A. D. 1818, granted and conveyed unto the said Charles J. Ingersoll in fee, clear of all liens and incumbrances whatsoever." This deed also contained the usual covenant of special warranty. On the 1st of May, 1819, John Sergeant executed the follow- ing instrument, which was endorsed on the last-mentioned deed. " Whereas the whole of a large lot of ground situate on the west side of Delaware Fifth street, at the distance of 93 feet 16 inches south of Walnut street, in the City of Philadelphia con- taining in front or breadth on the said Fifth street, 54 feet, and in depth 99 feet 6 inches, (of which the within described, and granted lot is part,) is subject to and charged with the payment of a yearly rent or sum of $351, which yearly rent charge is now vested in John Sergeant of the said city, Esquire : Now, there- fore, these presents witness, that the said John Sergeant, in con- sideration of the premises, and of the sum of one dollar to him in hand paid by Jonathan Smith, Esq., the grantee within named, the receipt whereof is hereby acknowledged, hath, and by these presents doth release, exonerate arid discharge the within-described 1836.] OF PENNSYLVANIA. 339 (Ingersoll c. Sergeant.) lot, which is at the distance of 93 feet 10 inches south of Walnut street, and 74 feet 8 inches westward of the said Fifth street, containing in breadth, east and west, 24 feet 10 inches, and in depth, north and south, 45 feet, of and from the payment of the said yearly rent-charge, and every part thereof, and of and from all distress and distresses, actions, suits, judgments, executions, damages and demands on account of the same, and that the residue of the said recited large lot only, shall be held liable and account- able *for the payment of the said yearly rent charge, r* 04.01 Provided always, nevertheless, that nothing herein con- L tained shall in anywise tend to impair or injure the estate and interest of the said John Sergeant, his heirs and assigns, in and to the said yearly rent charge, or prevent the recovery of the same from the remaining part of the said recited large lot, but only the premises within granted. In witness whereof, the said John Sergeant hath hereunto set his hand and seal, this 1st day of May, A. D. 1819." This instrument was acknowledged on the 4th of May, 1819. On the 3d of May, 1819, John Sergeant and wife, by inden- ture of bargain and sale, reciting the conveyance to him on the 31st of October, 1818, by Ann O'Connor and others, of "all that certain yearly renfccharge, or sum of $351, chargeable on and issuing, &c., out of all that certain lot," &c., describing it, and reciting the preceding release to Jonathan Smith, and the agreement of the 6th of February, 1819, by which the time of redemption of the said rent charge was extended, in consideration of $5235, granted and assigned "the said yearly rent-charge of $351" to Elizabeth Sergeant, widow (the avowant,) together with all rights, remedies, &c : Habendum to the said Elizabeth Ser- geant in fee ; and concluding with the usual covenant of special warranty. It was agreed between the parties that Mr. Sergeant should be considered as having given the following testimony : " That the ground rent in question was purchased in the name of John Sergeant, and was paid for with the money of Joseph Reed, and that the consideration, paid by the defendant was paid over to Joseph Reed. That Mr. Sergeant, at Mr. Reed's request, executed the release to Jonathan Smith ; but that Elizabeth Ser- geant had -no notice or knowledge of Mr. Reed's interest in the rent, or of his request to Mr. Sergeant to execute the release, and that she purchased the rent through a conveyancer ; no com- munication having ever taken place between Mr. Sergeant and any one in regard to it, further than to execute and deliver the deed. That subsequent to the conveyance to Elizabeth Sergeant some time in the summer of 1820, and after the controversy in this cause began, Joseph Reed gave a memorandum to Mr. Ser- 340 SUPREME COURT [March Term, (Ingersollt). Sergeant.) geant, dated by Mr. Reed, 3d May, 1819, to indemnify him from all loss and damage which he might sustain, but that Mrs. Eliza- beth Sergeant had no notice or knowledge of this indemnity being given, nor that it has been given. That Mr. Sergeant told Mr. Reed that he must give him a statement, showing (as the fact was,) that he, Mr. Sergeant, had no interest in the transaction, direct or indirect; and in compliance with this direction Mr. Reed gave Mr. Sergeant the paper, dated 3d May, 1819, and that Mr. Sergeant did not ask Mr. Reed for an engagement to indemnify." r**U11 *Th e case was twice argued; viz. first, at March Term, 1830, by Mr. J. It. Inyersoll, for the plaintiff, and by the plaintiff in person, and by Mr. Binney and by Mr. CJiauncey for the avowant ; and again at March Term, 1835, by the same counsel. Arguments for the plaintiffs. The question is whether this rent charge has not been extin- guished by the acts and deeds of the parties. The plaintiff has paid the full value for the extinguishment of it, and has a right to call to his aid any principle or rule of law, which will relieve him from the burthen. The principles relied on in support of the plaintiff's case are as old and firmly rooted as the law itself. 1. The rent was extinguished by the conveyance of the 31st of October, 1818, to Mr. Sergeant, for the use of Mr. Reed. The money went from the plaintiff directly for the purpose. Suppos- ing the intention to have been fair at the time, the method of accomplishing the object was unimportant. Mr. Sergeant and Mr. Reed were one and the same for the purpose of this transac- tion. Suppose the conveyance of the ground-rent had been made directly to Mr. Reed, would not equity have carried his covenant into effect, and extinguished the rent forthwith ? If the inten- tion of Mr. Reed was fraudulent, the plaintiff cannot be preju diced. The evidence shows a naked trust in Mr. Sergeant for Mr. Reed. There was no consideration except what passed from the latter. By the statute the use was annexed to the possession, and Reed became the holder of the legal estate. 7 Com. Dig. 391 ; Griffith v. Chew, (8 Serg. & Rawle, 31 ;) Co. Litt. 147, ft, 148, ft, 149, ft. 2. The enlargement of the time of redemption by Mr. Ser- geant, on the 6th of February, 1819, furnishes another answer to the claim for rent. This was done without the concurrence or even the knowledge of the plaintiff. At this time, Mr. Reed was the party to pay off the rent; and his agreement to extend the time, since the act of his trustee was his own, was in violation of his covenant. It is true, that in the deed to the plaintiff, there is a covenant to extinguish within the original or any ex- 1836.] OF PENNSYLVANIA. 341 (Ingersollfl. Sergeant.) tended time, but this was conditional, and provided that the grantee should be saved harmless, &c. This extension varied the responsibility of the plaintiff. 3. The release of the 1st of May, 1819, extinguished the whole rent. This is certainly the main question in the case, and it is one of considerable importance in this part of the commonwealth, where ground-rents are so numerous. It is believed that the case of the plaintiff rests upon some of the fundamental principles of the law, which it is impossible ' to remove without danger of serious injury. That an entire contract cannot be apportioned, is an unquestioned rule. The authorities are numerous, from Bro. Ab. Apportionment, pi. 7, 13, &c., down to Abbott on Ship- ping, p. 292 ; 10 Rep. 128 ; 1 *P. Wms. 392 ; 2 P. Wms. 176, 501 ; 1 Salk. 65 ; 2 Mass. Rep. 147. The familiar [*342] rule respecting the effect of a release, runs through an extensive circle. Where two or more are jointly bound, the release of one is the release of all. 2 Saunders, 48, (a :) 2 Roll. Abr. 412, G. pi. 4, 5; Clayton v. Kynaston, (2 Salk. 574;) Hob, 70; Cro. Eliz. 762; Co. Litt. 232, (a;) 12 Mod. 551; Rowley v. Stoddart, (7 Johns. Rep. 207;) Hostetter v. Kauffman, (11 Serg. & Rawle, 148, 9;) Hunt v. The U. States, (1 Gall. 36.) In the case of a co-obligor, the rule is not confined to the case of an actual release, but extends to a legal extinguishment, as by obtaining a judgment against his fellow-obligor. Downing v. F. $ M. Bank of Greencastle, (13 Serg & Rawle, 288 ;) Robertson v. Smith, (18 Johns. 459 ;) Smith v. Black, (9 Serg. &, Rawle, 142.) The same rule extends to property in lands, jointly liable. Sir Wm. Harberfs Case, (3 Rep. 14 ;) Stevens v. Cooper, (1 Johns. Ch. Rep. 430 ;) Mor- ton v. Croyhan, (20 Johns. 106.) It governs the whole subject of rents. ,It is well settled, that there can be no apportionment in respect to time, dun's Case, (10 Rep. 127;) Jenner v. Mor- gan, (1 Peere Wms. 392 ;) Hay v. Palmer, (2 P. Wms. 502 ;) Bentham v. Alston, (2 Ver'n. 204 ;) Van Rensalaer v. Plainer, (2 Johns. Cas. 17;) Cutting v. Derby, (2 Bl. Rep. 1077;) Leftley v. Mills, (4 Term Rep. 173 ; ) 1 Saunders' Rep. 287 ; Plowden, 172 ; 1 And. 252 ; 2 Lutw. 1139 ; Cro. Jac. 499 ; Cro. Eliz. 209 ; Co. Litt. 202, a ; 4 Leon. 179 ; Norris v. Harrison, (2 Madd. 288.) The same rule applies to all periodical payments ; 3 Atk. 261 ; 2 Bl. Rep. 1016 ; 3 Bro. C. C. 101 ; 2 Ves. 672 ; Ambler, 279 ; 3 Atk. 502 ; except in the case of interest upon bond and mortgage, Banner v. .Love, (13 Ves. 135;) 3 P. Wms. 176 ; 1 Bro. P. C. 207 ; 2 Ves. 672. The rule is emphatically applicable to the case of a rent-charge. 18 Viner, 504, B. a ; 3 Cruise Dig. 209, tit. Rents, ch. iii. 13, &c. 11 Viner, 467, tit. Extinguishment, Goldsborough, 116 ; Bro. Ark. Release ; Shepherd Touchstone, Id. ; 3 Rep. 120,'and 175 ; 5 Rep. 55, VOL. i. 23 342 SUPREME COURT [March Term, (Ingcrsoll v. Sergeant.) pi. 1 ; Dyer, 308, pi. 3 ; Shower, 350 ; 2 Bulstr. 291 ; 12. Mod. 551. It is not a question what the party meant, if the rights of third persons are affected as in this case, Milliken v. Brotvn, (1 Rawle, 391 ; Barrinyton v. Bank of Washington, (14 Serg. & Rawle, 425;) 4 Cruise, 296, Deed, e. 19, s. 32. The proviso which is relied upon on the other side cannot be allowed to oper- ate here, since it is repugnant to the main effect of the grant. Co. Litt. 145, 6. Scovellv. Cabell, (Cro. Eliz. 107;) Cromwell's Case, (2 Rep. 70, &c.) But it is supposed that the plaintiff con- veyed to Mr. Smith, clear of incumbrances, and therefore as to him it is to be considered as clear. Now there is nothing in the conveying part or habendum to this effect. It is true that after the description of the property, follow the words, " being the same premises which Joseph Reed," &c. The clause in the con- veyance of Reed is stated in hcec verba. The whole deed is there- r*^4Ql f re re f erre d to, and notice given of its entire ""contents, 2 Cases in Chan. 246; 1 Eq. Cas. Abr. 331, pi. 7 ; Ambler, 314 ; 1 Vernon, 149. The only effect of the recital would be to destroy the plaintiff's remedy against Smith for con- tribution. It cannot alter his right as to others. Estoppels are discountenanced by all the courts. The defendant cannot avail herself of an estoppel in this Court being a stranger. Co. Litt. 353, a, b. It is settled that an estoppel must be something pre- cisely alleged, not by way of rehearsal. Shelly v. Wright (Willes, 9.) When the truth appears in the same record, the party is not estopped to allege it. Co. Litt. 353, b. Here the existence of the rent, if that be meant by " lien or incumbrance," is shown by the same instrument. The rules with respect to estoppels, have been recognized in this state. Penrose v. Grif- fith, (4 Binn. 231 ;) Downing v. Grallaher, (2 Serg. & Rawle, 455 ; Christine v. Whitehill, (16 Serg. & Rawle, 98 ;) Werk- heiser v. Werkheiser, (3 Rawle, 333.) The law being well settled as to the release of a rent-charge, it is attempted on the other side to distinguish the ground-rents of Pennsylvania, from those which are called rents-charge in England, and elsewhere, and to assimilate them to rents- service, which it is said may be apportioned. Now, ground-rents have always been considered and called rents-charge in this state. In the conveyances and other instruments in this case, the rent in question is called a rent-charge repeatedly. The character and attributes of rents are well explained in Gilbert on Rents, 16, 131. For rent-service there must be service of some kind. The species has expired with the feudal tenures. Rent-charges are more consonant with our institutions. The rule that a rent- charge is not apportionable, is for the tenant's sake. 2 Black. Com. 41 ; Co. Litt. 222 ; 3 Cruise Dig. 308, 353. The error 1836.] OF PENNSYLVANIA. 343 (Ingersoll v. Sergeant.) of the argument in Bantleon v. Smith, (2 Binn. 150,) consists in supposing that there was only one kind of rent-charge by the Elnglish law. C. J. Tilghman, no where says that our ground- rents are not the English rent-charges. Arguments for the avowant. The doctrine that by the release of a part of the ground sub- ject to rent, the whole is extinguished, is not likely to meet with favor in modern times. There seems to be no sufficient reason why a person who releases one-tenth of a lot, should be supposed to have forfeited all right to the rent of the remaining nine- tenths, or why he who holds nine-tenths of the ground, should not pay that proportion of the rent. There is certainly no such rigor in the principle, that by consent of the parties express or implied, the rent may not be released pro tanto. An extinguish- ment may be prevented : 1st. By the grantee of the rent-charge joining with the grantor of the part intended to be exonerated. 3 Cruise Dig. 319. Here if Mr. Ingersoll and Mr. Sergeant had joined in the conveyance to Mr. Smith, with *a proviso that it should not extinguish the rent, certainly what is now contended for would not have taken place. 2d. Another method of preventing extinguishment, is for the grantee to execute a covenant that he will not distrain on the part in- tended to be freed. 3 Cruise, 319. Supposing for the sake of the argument, that an absolute and unconditional release of a part is an extinguishment of the whole, it is to be seen how far this instrument is to be so considered. 1. This is not an absolute release, but such a discharge as is consistent with the existence of the rent. The proviso is explicit and express, and controls the whole instrument. If it be a nullity, it must be so in disre- gard of the intention of the parties, which is the first thing to be considered. Earl of Clanricard 1 s -case, (Hob. 277 ;) Crossing v. Scudamore, (1 Vent. 141 ;) Roe v. Branmer, (2 Wils. 75 ;) Morris v. Wilford, (2 Levinz, 216.) The cases cited on the other side show that a proviso will be inoperative where the party attempts to do something by his grant, which from its nature can- not be done, or which is prohibited by the rules of law. 2 Leon. 132 ; Hob. 170 ; 1 Roll. 419. A release for a particular pur- pose, though in general terms, will be restrained to the particular purpose. 4 Cruise, 299, Deed, C. 19, s. 31, 32, &c. ; Good- title v. Bailey, (Cowper, 597) ; 4 Cruise, 300 ; Shepherd's T. 32 ; 5 Bac. Abr. 711, Release K. ; Paley v. Homersham, (4 M. & S. 423 ;) Hollingsworth v. Fry, (4 Dall. 347 ;) Massey v. Rawle, (2 Binn. 537, 544;) M' Williams v. Martin, (12 Serg. & Rawle, 269;) Miller v. Heller, (7 Serg. & Rawle, 40.) In Stewart v. Eden, (2 Caines, 121,) a release by the indorsee to 344 SUPREME COURT [March Term, (Ingersoll t. Sergeant.) the drawer of a note, with an exception that he should always be responsible to the indorsee, was held not to discharge the in- dorsers. So in Kirby v. Taylor , (6 Johns. Ch. Rep. 242,) a re- lease to one of three guardians, was held by Chancellor Kent, not to discharge the others. This case was recognized and ap- proved, and a similar point ruled in M l Clenachan v. Tie Com- monwealth, (1 Rawle, 361.) The proviso in this instrument is not repugnant to it. Its operation is to convert the instrument into a covenant, not to distrain on a particular part of the lot. This is no hardship upon the plaintiff, since the owner of a rent may distrain upon any part, and the tenant of the part made liable for the whole, may have contribution against the tenants of the remaining part. If a proviso leaves any benefit to the grantee, it is good: 6 Yiner, 101, Condition, Z. pi. 12; Jenk. Cent. 96, c. 86. 2d, as between Mr. Ingersoll and Mr. Smith, the latter was discharged from this rent previously, and Mr. Ingersoll has no right of contribution from him. The consent of the owner of the remaining part of the land, was therefore given prior to the release ; and this has the same effect as if he had joined in it. It is clear that the plaintiff intended to give Mr. Reed a personal credit for the principal am'ount of the rent. Could he have maintained an action against Mr. Reed, for not ex- tinguishing the rent before September, 1821 ? The deed of 30th f*^4^1 April, *1819, conveyed to Smith a portion of the lot, -" free and clear of all liens and incumbrances whatsoever. The intent is apparent from the amount of the consideration, which was $2500, the whole consideration in the deed from Mr. Reed to Mr. Ingersoll, being $11,250, and from the deed being silent as to liability for the ground-rent or any part of it. Un- doubtedly the recital in this deed will estop the plaintiff if he should claim contribution from Mr. Smith ; 3 Cruise, 318, 319; Shepherd's T. 345 ; Shelly v. Wright, (Willes, 9 ;) 4 Cruise, 307, 317 ; 2 Eq. Cas. Abr. 652 ; Co. Litt. 351, b ; Rolle's Abr. 872; Penn v. Preston, (2 Rawle, 14.) The doctrine of rent-charge is of feudal origin. That of rent- service is more reasonable. The English rent-charge was an im- position of burthen or charge on the land, in the form of an annual rent, payable by the owner of the land. It was said to be a charge against common right. It was probably first adopted as a means of providing for younger children. It was considered as contrary to the policy of the common law, because the tenant was less able to perform the military services to which he was bound by his tenure. 3 Cruise, 309, Rent, c. 1, s. 9. Distress was not incident to such a rent, unless annexed to the grant. This being the character of the English rent-charge, the reasons for the doctrine of extinguishment are feudal, arising out of the 1836.] OF PENNSYLVANIA. 345 (Ingersoll v. Sergeant. ) peculiar relation of the tenant who granted the rent, with his lord, and from the policy of the law in relation to. this kind of rent. This may be seen in the reasons assigned hy Lord Coke and Baron Gilbert for the extinguishment, where the owner of the rent purchases part of the land, or releases a part from the rent. Gilbert on Rents, 151, &c. ; 3 Cruise, 353, Rents, c. 3, s. 13, 14, 15. Is the Pennsylvania ground-rent in character the same as the English rent-charge ? It is unlike in many essential particulars. In the first place, the policy of the law of this State is favorable to these ground-rents, since they facilitate the sale of lots and improvement of towns and other places, when a sale for a gross sum could not be effected. Again, a ground-rent is a rent reserved, not a charge created. It is in character anal- ogous to a rent-service, which is a reservation of rent to the lessor, for the use and occupation of the land, and ought to be governed by the rules applicable to that species of rent. The owner of an English rent-charge had two remedies, by writ of annuity and by distress, according to the provisions of the deed. If he resorted to the writ of annuity, and obtained judgment, the land was dis- charged. On our ground-rent, the remedies are distress, re-entry, debt and covenant If the action of debt or covenant be resorted to, and judgment obtained, the land is not discharged. In the case of Bantleon v. Smith, (2 Binn. 152,) C. J. Tilghman, states expressly, that the rent-charge spoken of in the argument, (i. e. the English rent-charge,) Avas not of the nature of the Pennsylvania ground-rents. The doctrine of extinguishment *then, r*Q4.n which grows out of a policy adverse to the rent-charge in England, is inapplicable to the case of a rent against which no such rule of policy prevails. The Pennsylvania ground-rents are to be considered as untrammelled by any of the peculiar doctrines of the English rent-charge, and the Courts are at liberty to give such a construction to conveyances affecting them as will carry out the reasonable intent of the parties. The doctrine of extinguish- ment does not hold with respect to rent-service ; 3 Cruise, 322, No. 30, 31, 32 ; Co. Litt. 148 (6), 169 (a), sect. 251 , 2, 3 ; Gilbert, 19 ; Sir Wm. Jones, 234 ; Saville, 69 ; Noy, 5 ; Co. Litt. 215 (a). Even with respect to rents-charge, the rule does not hold universally ; Co. Litt. 24 ; Gilbert, 156 ; 3 Cruise, 318, No. 5 ; 18 Viri. 504, Assize of Rent, &c. Two other grounds of defence have been taken, 1. That the rent was extinguished by the conveyance of the 31st Oct. 1818, to Mr. Sergeant for the use of Mr. Reed. The facts are, that there was a conveyance to Mr. Sergeant, but not an extinguishment. The money was received by Mr. Reed from the plaintiff, under a contract, not of immediate but of prospective extinguishment, at such time as should suit his convenience. If 346 SUPREME COURT [March Term, (Ingereoll t>. Sergeant.) the plaintiff gave Mr. Reed a personal credit, and agreed to re- pose upon his covenant, the assignment to Mr. Sergeant was con- sistent with the contract, and cannot be construed into an extin- guishment. As to the statute of uses, it is clear it had no opera- tion in this case. By the deed of Mr. Sergeant, he was seized to his own use and no other. It is true that he was a trustee for Mr. Reed, hut this was not within the statute of uses. There was no use for the statute to execute, but the use to himself, and if there had been an use upon that declared in the deed, the statute would not have executed it. If the use had been executed, still as there is nothing on the face of the deed to affect the defendant with notice, the idea of implied extinguishment would not be allowed to operate against her. 2. The enlargement of the time of redemption by the deed of the 6th February, 1819, has also been relied on. The answer to this is 1st, that the extension was by the express agreement of the plaintiff on the 9th of October, 1818 ; and 2d, that it did the plaintiff no injury, but on the contrary was calculated to work a benefit to him. Every one knows that the longer the period of redemption, the greater the advantage to the tenant. If Mr. Reed had suffered the time to elapse without obtaining an exten- sion, Mr. Ingersoll would have been saddled with an irredeemable ground-rent. Besides the extension was inoperative until two years after the defendant bought the ground-rent. Cur. adv. vult. *And now at this term, the judgment of the Court was delivered by KENNEDY, J. The plaintiff alleges that the rent in question is in its nature strictly a rent-charge, and that the defendant there- fore, by releasing to Jonathan Smith a part of the ground upon which, according to his own phrase, it was charged, released the whole rent. It becomes material, therefore, to inquire and see whether it be a rent-charge or not ; and if not, whether it is not a rent-service ; because if it be a rent-service, the defence set up against the payment of it cannot avail, at most, beyond what shall be considered a proportional part, according to the value of the land released. According to Littleton, there are three sorts of rent ; which he specifies in section 213 ; namely, rent-service, rent-charge, and rent-seek. "A rent-service," he says, "is where the tenant holdeth his land of his lord by fealty and certain rent, or by homage fealty and certain rent, or by other services and certain rent. And if rent-service at any day, that ought to be paid, be behind, the lord may distrain for that of common riyht." And in section 218, he also shows how a rent-charge and a rent-seek 1836.] OF PENNSYLVANIA. 347 (Ingersoll v. Sergeant. ) were created before the passage of the statute quia emptores ter- rarum, (18th Edw. 1, stat. 1, c. 1.) He there says, "if a man seized of certain land, grant by deed poll, or his indenture, a yearly rent, to be issuing out of the same land to another in fee, or fee tail, or for term of life, &c., with a clause of distress, &c., then this is a rent-charge; and if the grant be without clause of distress, then it is a rent-seek ; and idem est quod redditus siccus, for that no distress is incident unto it." And in the 217th sec- tion, he lays it down that " if a man by deed indented at this day, (which was after the statute quia emptores had come into operation,) maketh a gift in fee tail, the remainder over in fee ; or a lease for life, the remainder over in fee, or a feoffment in fee ; and by the same indenture, he reserveth to him and to his heirs a certain rent, and that if the rent be behind, it shall be lawful for him and his heirs to distrain, &c., such a rent is a rent-charge; because such lands or tenements are charged with such distress by force of the writing only, and not of common right." But before the passage of the statute quia emptores, it was clearly otherwise ; for in the 216th section, he says, " before that statute, if a man had made a feoffment in fee simple by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent-service, and for this he might have distrained of common right ; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoff or by the same ser- vice as thefeoff'or did hold over of his lord next paramount." Hence it is evident that the ground-rent in question cannot be considered a rent-charge, unless it be so by the force of the stat- ute quia emptores; but if it shall appear, upon examination, that this statute is not and never has been in force in Pennsylvania, then it would *seem to be equally evident, that it must r*q4Q-i be held to be a rent-service. King Charles the 2nd, in L granting the province of Pennsylvania to William Penn and his heirs, gave it to be held in free and common socage, and by fealty only, for all services; (see section 3d of the charter.) And by the 17th section thereof, William Penn, his heirs and assigns, had full and absolute power given to them, at all times there- after, and forever, to assign, alien, grant, demise or enfeoff such parts and parcels thereof, to such persons as might be willing to purchase the same, their heirs and assigns, in fee simple, fee tail, for term of life, lives, or years, to be held of the said William Penn, his heirs and assigns, as of the seigniory of Windsor by such services, customs and rents as should seem fit, to the said William Penn, his heirs and assigns, and not immediately of the said King Charles, his heirs or successors. And again by the 18th section, it was further provided, that the purchasers from William Penn, his heirs or assigns, should hold such estates as :'.!> SUPREME COURT [March Term, (Ingersoll v. Sergeant.) might be granted to them, either in fee simple, fee tail, or other- wise, as to the said William Penn, his heirs or assigns should seem expedient, the statute of quia emptores terrarum in anywise notwithstanding. From these provisions, it appears most clearly, that it was the intention of King Charles, to grant the lands of the province to William Penn, his heirs and assigns, so as to en- able them to hold and dispose of the same as if the statute quia emptorett had not been in existence. That it has been ever so understood, may be seen and fairly inferred from both our legis- lative and judicial proceedings. By the 14th section of the laws agreed on between William Penn and the freemen and planters of the province, in England, May 5th, 1682, in the year following the date of the charter to him, it was declared that all lands and goods should be liable to pay the debts of the owners, except when there was a legal issue, and then, though all the goods, only one-third of the land. (See App. to Hall & Sellers, vol. Pro. L. page 4.) And on the 7th of December in the same year, by an act of the assembly of the province held at Chester, Ibid. 7, one-half of the land was made liable, in case of no issue, to the payment of debts, where it was bought before the debts were contracted. By a subsequent act passed the 10th of March, 1683, at Philadelphia, (Ibid. 9,) one- third of all the estate of the owner upon his death, including both real and personal, was directed to be given to his wife, another third thereof to his children equally, and the remaining third as he had directed ; but in case his wife had died before him, then two-thirds to be given to his children, and the other third as he had seen fit, after payment of his debts. Also, by another act passed at the same session, (Ibid.) it was enacted that one-half of the estate of a deceased intestate, without kindred, should go to the governor, and the other half to the public ; this latter half by an act passed afterwards, in 1684, (Ibid. 10,) was given to the public stock of the county. Again, by an act of the 1st of June, f*34Ql *1693, (Ibid. 13,) the administrators of an estate were - authorized to sell the real as well as the personal estate of their intestate, for the purpose of paying his debts; and after paying them were directed to pay the surplus, where their intes- tate died without kindred, one-half thereof to the governor, and the other to the county stock. Here we see that among the first regulations agreed on and adopted in England, with a view to the future settlement of the province, the right of escheat, in favor of creditors, was clearly taken away. And shortly after- wards, the surplus, if any, after payment of the debts of the intestate dying without kindred, was given to the governor of the province and the public in equal parts. The half allotted to the public, was subsequently given to the county ; thus making 1836.] OF PENNSYLVANIA. 349 (Ingersoll v. Sergeant.) a disposition of his estate that had no relation or connection whatever with the tenure by which he held it; so that the right of escheat can scarcely he said to have been introduced into the province before the year 1700. Then an act of the assembly for ascertaining the descent of lands, and better disposition of the estates of persons dying intestate was passed; (Ibid. 16.) This act, after making all the lands as well as the personal estate of the intestate, liable to be seized and sold by his administrators for the payment of his debts, directed, by the second section thereof, that in case he should leave no known kindred, then all his lands, tenements and hereditaments should descend and go to the immediate landlord, of whom such lands were held,\\is heirs and assigns ; and if held immediately of the proprietary, then to the proprietary, his heirs and assigns; and all the goods, chattels, and personal estate to the proprietary and governor, his heirs and assigns. Now, here we have the right of escheat es- tablished upon and regulated according to the right of subinfeu- dation, and the principle of tenure between the last feoffee or ter-tenant and his immediate feoffor or vendor. The same pro- vision in regard to the right of escheat was introduced into a new intestate law passed in 1705, (Hall & Sellers, vol. Pro. L. 35,) which continued in force till after the revolution. This regula- tion of the right of escheat was in direct contravention to the statute quia emptores; which was enacted expressly for the pur- pose of securing it to the lord paramount, instead of the imme- diate landlord or feoffor or vendor, in every case of the tor-tenant's dying Avithout heirs ; together with the right of marriage and of wardship, which were also claimed as the fruits of the feudal system. The two last of these rights however, were taken away by 12 Car. 2, c. 34, some six years before the granting of the province to William Penn ; so that the door seems to have been completely closed from the first in the province, against the in- troduction of the only remaining right that existed under the authority of the statute quia emptores terrarum. As to judicial evidence of the non-existence of this statute here, I refer first to the case of Dunbar heir of Dunbar v. Jumper assit/nee of Thomp- son, (2 Yeates, 74,) where upon a mutual *deed exe- r*Q^rn cuted by the vendor and the vendee, by which the "- vendor sold and conveyed an acre of land to the vendee in fee, it being necessary for a grist mill of the vendee, in consideration of the vendee's yielding and paying to the vendor and the lawful heir of his body, the privilege of grinding such grain as might be used or consumed by the vendor in his private family, on the plantation which he then occupied, or the heir of his body, on the said plantation after his decease, free of toll, as long as the mill should be in order to grind, it was held by Shippen and Yeates, 350 SUPREME COURT [March Term, (Ingersoll . Sergeant.) Justices, at Nisi Prius, at Carlisle in 1796, that an action of covenant was maintainable by the heir at law of the vendor against Jumper the assignee of Thompson the vendee, for refus- ing to grind grain toll free for the plaintiff, according to the terms of the deed. Now under the statute quia emptores, if it had been in force here when this case was decided, and our lands con- sidered as held under feudal tenures, the grinding of the grain ought to have been regarded as a rent-charge, and perhaps more properly so, than a ground-rent reserved on a deed poll. But a covenant to pay a rent-charge is merely personal and collateral to the land, and therefore will not render the assignee liable to an action of covenant for the non-performance of it. Brewster v. Kitchen, Kitchell, or Kidgell, (1 Ld. Raymond, 322, s. c. Holt, 175; 5 Mod. 374 ; 1 Salk/198; 12 Mod. 170-1 ;) Cook v. Earl of Arundel, (Hardr. 87 ;) Platt on Co. 65, 475. Hence we may very fairly conclude, that the Court in Dunbar and Jumper did not consider the statute of quia emptores in force here, otherwise they would not have held, as they did, that the covenant of the vendee to grind toll free ran with the land, and that the assignee or terre-tenant thereof became liable to an action of covenant for not fulfilling it. So in the case of Bantleon v. Smith, (2 Binn. 146,) this Court, where the rent in question was a ground-rent, like the present, appear to have taken a material distinction between it and tht which is strictly and technically so called, and to have excluded all operation of the statute quia emptores from a ground-rent, by which alone, it can be converted into a rent- charge. And although the late Chief Justice, who delivered the opinion of the Court, there calls it a rent-charge, as it had been frequently before and since, by Judges of this state without intend- ing to pronounce it strictly a rent-charge, yet^he is particular in the course of his opinion, to distinguish it from a rent-charge, and upon the distinction so .taken, the opinion of the Court seems to be founded. He says, page 152, "upon examining these cases, and those cited on the same subject by the plaintiff's counsel, (meaning English cases cited by the counsel on both sides in the course of their arguments,) it will appear that the rent-charge there spoken of, was not of the nature of the rent then in question. It was the case of a man who granted to another and his heirs, a yearly sum of money, and charged it on his land, with power to the grantee to distrain" This doubtless was the only j-^or-j-i *mode known to the English law anterior to the statute quia emptores, by which a rent-charge could be created ; and by that statute a fee farm-rent in England, which prior thereto, was substantially the same with our ground-rent, was converted into a rent-charge, if accompanied by a clause of distress, by consider- ing the words " reserving to the feoffer, c., a rent of, c.," the 1836.] OF PENNSYLVANIA. 351 (Ingersoll v. Sergeant.) words of the feoffee, and as amounting to a grant by him of the rent to the feoffor, 6 Bac. Abr. page 6, tit. sub-division, rent- char r/e, instead of holding them to be as in truth they were, the words of the feoffor; and as they had previously at least ever been so considered. 1 Inst. 143, b. And this seemingly forced construction of making the words in fact of the feoffor, to be the words in law of the feoffee, would appear to be necessary in order to comprehend how it is that a fee-farm rent in England is con- verted into a rent-charge by the operation of the statute. But what proves most incontestably that the Judges, who decided the case of Bantleon and Smith, did not consider the statute quia emptores in force here, is, their report of the English statutes in force, excluding it, which was made in the year preceding, (1808,) in obedience to a resolution of the Legislature requiring them to report all the English statutes then in force in the state. As further evidence of the judicial course, going to prove that this statute has not been considered in force here, actions of covenant have been brought and maintained for the recovery of ground- rents reserved in fee and for life, upon lands granted in fee, when in arrear, by the assignees thereof, in some instances against the grantees of the lots, who first covenanted to pay them, and in others against their assignees. See Philips v. Clarkson, (3 Yeates, 124;) Streaper v. Fisher, (1 Rawle, 155 ;) Herbauyh v. Zentmyer, (2 Rawle, 159 ;) Royer v. Ake, (3 Penn. Rep. 461 ;) Miles v. St. Mary's Church, (ante, 229.) But if the statute had been in force here, the ground-rent, recovered in these cases, would by means thereof, have been converted into a mere rent- charge; and then, as has been already shown, the covenant on the part of the grantee of the land to pay the rent would have been simply personal, and collateral to the land ; upon which no action could have been sustained against the assignee of the grantee thereof. Having now shown that the feudal rights of marriage and ward- ship, to secure the enjoyment of which, together with that of es- cheat to the chief lords, was the only inducement for passing the statute quia emptores, were taken away by the statute of 12 Car. 2, c. 34, a few years before the grant of the province to William Penn ; and that the right of escheat here was established in the earliest settlement of the province upon a totally different prin- ciple, recognizing distinctly the right of subinfeudation ; that the decisions of our Courts have been at variance with its operation ; and not being aware of even the shadow of evidence tending to show the contrary, *I am inevitably brought to the con- r*qr;9i elusion, that it never had any existence here. This statute then being out of the way, we have seen that according to the principles of the common law, (Littleton, sec. 352 SUPREME COURT [March Term, (Ingersoll v. Sergeant.) 216,) the rent in question is clearly a rent-service. And Lord Coke, in his commentary upon this section, (Co. Lit. 143, a,) adds " at the common law, if a man had made a feoffment in fee hy parol, he might upon that feoffment have reserved a rent to him and his heirs, because it was a rent-service and a tenure thereby created." It was called a rent-service, because it was a compensation for the services to which the land was originally liable; 3 Cruise Dig. Rents, tit. 28, c. 1, sec. 6. And at this day, the tenant (says Chief Baron Gilbert,) does the corporal service of fealty ; Gilb. on Rents, 9 : and therefore it is still called a rentrservice, because it hath always some corporal ser- vice incident to it, which at the least is fealty. Gilb. on Distress, 5; 1 Inst. 142, a. The rent in question then being a rent-service and not a rent- charge, the doctrine contended for, as well as the authorities cited by the plaintiffs counsel on the argument, showing what in law will amount to an extinguishment of the whole rent, where it is a rent-charge, and that it is not in its nature apportionable by the act of the parties, will be found to be wholly inapplicable to a rent-service. A rent-charge was considered repugnant to the principles of the feudal policy, inasmuch as it created an incum- brance upon the land of the tenant, and rendered him the less able to perform the services incident to his tenure ; and being looked on as against common right, the law did not attach the remedy by distress for its recovery when in arrear, so that it is only given by virtue of the clause to that effect in the deed creating it. Gilb. on Rents, 155 ; Littleton, sec. 217 ; 3 Cruise Dig. tit. 28, Rents, ch. l,sec. 9. In short it was regarded with disfavor by the law, and any act therefore on the part of the owner of it, which could in any way be construed to be incompatible with the future assertion of right to the same, was held to amount to a release or an extinguishment of it, without regard to the inten- tion: as for instance, if he purchased or released a part of the land from the rent, upon which it was charged ; this was held to be an entire extinguishment of his right to the whole rent ; Lit- tleton, sec. 222 ; 1 Inst. 147, (6 ;) Gilb. on Rents, 152 ; 18 Vin. Abr. 504; Bro. tit. Apportionment, pi. 17 ; 3 Cruise Dig. tit. 28, Rents, ch. 3, s. 13, 16. But a rent-service being given as a com- pensation for the services to which the land was originally liable under the feudal system (3 Cruise Dig. tit. 28, ch. 1, sec. 6,) must therefore be judged of by the rules which regulated the performance of those services. Accordingly Littleton lays it down expressly in section 222, " if a man which hath a rent- scrvice, purchase parcel of the land out of which the rent is issu- ing, this shall not extinguish all, but for parcel ; for a rent-service 1836.] OF PENNSYLVANIA. 353 (Ingersoll v. Sergeant. ) in such case *may be apportioned according to the value r*qcq-i of the land." If the rent, however, in such case should be "- indivisible, as if it consist of a horse, hawk, &c., it Avould be taken away ; Bruerton's case, (6 Co. 1, b ;) Co. Litt. 149, a; 8 Co. 155, a ; Mo. 203 ; Gilb. on Rents, 151, 165. So if the lord purchase a part of the tenancy in fee, a proportional part only of the rent becomes extinct, and the residue will continue in esse, because of the enjoyment of the remaining part of the land by the tenant, which is the consideration for the payment of the rent. AscougKs case, (9 Co. 135 ; Co. Litt. 148, 6.) Lord Hale, Chief Justice, in Hodykins v. Robson, (1 Ventr. 276,) may pos- sibly be thought to go still further, when he lays it down that if a lessee assign part of the land which he holds on lease, to 'a stranger without reserving any rent, and the stranger assigns it to the lessor, there shall be no apportionment or suspension of any part of the rent, because the tenant, by assigning part, made himself answerable for the whole rent ; and the lessor claiming under a stranger, is entitled to the benefit of his contract. This proposition is also repeated with seeming approbation, by Lord Chief Justice Baron Gilbert, in his treatise on Rents, 181. The reason of the difference mentioned between rent-charge and rent- service, is stated by Lord Chief Baron Gilbert to be this : In case of rent-service, the tenant is under the obligation of the oath of fealty, to bear faith to his lord, and to perform the services for the land which he holds of him ; and this obligation has its force, while the tenure of the lord continues ; and the tenure could not be discharged by purchase of part of the tenancy ; for that construction would not only be attended with this absurdity, that the part, remaining in the tenant's hands, would be held of nobody, and in consequence would produce this public incon- veniency, that the remainder of the tenancy would be free of all feudal duties ; which in the height of the feudal tenures, must have been a detriment to the public : wherefore, since for this reason, the tenure between the lord and the tenant, continued for so much of the land as remained unpurchased, the tenant, by his oath of fealty, was obliged to perform the services of it. But as it would have been unreasonable to have compelled him to perform the whole services that were reserved upon the old dona- tion, when the lord had wilfully resumed part of the land, which was the consideration upon which the obligation to make the annual return of services was founded, the medium between the two extremes was adopted ; that as the enjoyment of the land was the consideration for the services, the return ought always to be made according to the proportion of the land, which the tenant continued in the possession and enjoyment of. But in the case of a rent-charge, when the grantee purchases parcel of 353 SUPREME COURT [March Term, (Ingereoll c. Sergeant.) the land, the whole rent is extinguished, because there is no feudal dependency between the grantor and the grantee by the deed of grant, which created the rent-charge, as there was by the feudal r^qc in donation which created the rent-service. *And there- - fore as these grants were of no benefit to the public, and afforded no addition of strength or protection to the kingdom, the law carries them into execution, only so far as the rent could take effect, according to the original intention of it ; and therefore if the grantee had wilfully, by his own act prevented the opera- tion of the grant according to the original intention of it, the whole grant was to determine. And as a rent-charge issues out of every part of the land, and consequently every part of the land is sub- ject to a distress for the whole rent, therefore when the grantee purchases part of the land, it is become impossible by his own act, that the grant should operate in that manner, because it is absurd, that the grantee should distrain his own lands, or bring an assize against himself. Gilbert on Rents, 152-3-4 ; 3 Cruise Dig. tit. 28, Rents, ch. 3, sec. 14. But rent-service being something given by way of retribution, to the landlord, for the land demised by him to the tenant ; and the obligation of the latter to pay the rent arising from his hav- ing enjoyed the land under a contract with his landlord, it is reasonable that the extent of his obligation to pay should be regu- lated by the extent of his enjoyment ; and therefore it is that if he be legally deprived of the enjoyment of part of the land de- mised, he shall be released from the rent only in proportion to the value of the land evicted. And in no case will an eviction of part of the demised premises, where the tenant continues to enjoy the residue thereof, discharge him from the payment of the whole rent, unless it be by the tortious act of the landlord himself, who shall forfeit all right to receive it in such case, as long as he pre- vents the tenant against his will, from occupying and enjoying any part of the land. Gilb. on Rents, 147 ; 10 Co. 128, a ; 1 Roll. Abr. 235 ; Dyer, 56 ; Co. Litt. 148, b ; 1 Ventr. 277 ; Gilb. on Rents, 178-9. Now let us see what the case of the plaintiff is, and how far these principles are applicable to it. Mr. Ingersoll, the plain- tiff, being the tenant of a certain quantity of ground, subject to the payment of a rent-service or ground-rent, on the 3Uth of April, 1819, conveyed a part thereof in fee to Mr. Smith, in consideration of $2500 paid to him : thus making a division of the ground by an act of his own ; and on the day following, Mr. Sergeant, who .was then invested with the legal title to the ground-rent, by his deed, in consideration of one dollar, released that part of the ground conveyed by the plaintiff to Mr. Smith, from the rent. This being the state of the case, 1 would ask, 1836.] OF PENNSYLVANIA. 354 (Ingersoll t>. Sergeant.) how can the release produce any other or greater effect towards extinguishing the rent, than if Mr. Sergeant had purchased the ground himself of the plaintiff, that Mr. Smith bought: or had afterwards, instead of releasing to Mr. Smith, purchased the ground of him? I cannot conceive how it is possible that it should, because the one would have been as much the wilful act of Mr. Sergeant as the other; and would have produced a union of the right to the rent, and of the right to that portion of the ground, *which would be at least as effectual for the pur- pose of producing an extinguishment of the rent, as a release confined in its terms to the same part of the whole ground could be. But we have seen that such a purchase would only have extinguished so much of the rent as would be equal to the value of that part of the ground so purchased : which proves that the release in this case ought only at most to be considered an extinguishment of so much of the rent as shall be equal in value to the ground released from it. In principle it can make no dif- ference, whether the rent and a part of the land, out of which it issues, become united in the landlord himself, by his purchasing such part of the land, or in the owner of such part of the land by the landlord's releasing it from the rent; the result and the effect would seem to be the same. The reasoning of the Lord Chief Baron Gilbert on this subject, going to show that there ought to be an apportionment of the rent, is not only satisfactory but conclusive, as it appears to me when he says, " there is no color or reason why the whole rent should be suspended, when the lord or lessor takes a lease of part of the land ; because here is the concurrence of the tenant, who, by his own act and con- sent, parts with so much of the land as is re-demised, and thereby supersedes the former contract, as to such part. But since the obligation to pay the rent, was-, by the first contract, founded upon the consideration of the tenant's enjoying the land, that obligation must still continue on the tenant, so far as it is not cancelled or revoked by any subsequent contract between the parties ; and consequently the whole rent shall not be extin- guished by such re-demise, but the tenant shall pay rent in pro- portion to the land he enjoys : because the obligation of the first contract must subsist so far as the tenant enjoys the considera- tion which first engaged him in such obligation." Gfilb. on Rents, 170-180. And although Mr. Ingersoll, the plaintiff, made no contract personally with Mr. Sergeant for the release, yet he had previously made a contract by which he disposed of that part of the land released from the rent, to Mr. Smith, who thereby be- came the assignee of Mr. Ingersoll, invested with his rights pro tanto ; and the contract made by Mr. Sergeant with Mr. Smith in regard to it, may be deemed in effect, the same as if made by 355 SUPREME COURT [March Term, (Ingersoll v. Sergeant.) and with the express consent and approbation of Mr. Ingersoll himself, who by his deed to Mr. Smith, must be considered as having authorized it. And had Mr. Ingersoll sold and conveyed to Mr. Smith his portion of the ground in fee expressly clear of the ground-rent, then according to the opinion of Lord Chief Justice Hale, already cited from 1 Ventr. 276, which I take to be sound law, Mr. Ingersoll would still have been liable to be dis- trained on for the whole rent, notwithstanding the release. And indeed it has been argued by the counsel for the defendant, that the recital in the deed of conveyance from the plaintiff' to Mr. Smith, contains a covenant on his part, that Mr. Smith and those claiming under him, should hold the ground thereby conveyed, i-jtcotfi-i *discharged from the ground-rent; or at least, that he - is estopped by this recital from denying that such is the legal effect of his conveyance to Mr. Smith. Without undertak- ing to examine and reconcile all the judicial authorities in regard to the effect of recitals in deeds, a task possibly not easy to be performed, it will be sufficient to extract the principle, which seems to be established by the authorities cited by the counsel for the defendant. They, as it appears to me, only go to show that a party who recites a particular fact or agreement in his deed, will not be permitted afterwards to deny its existence : but if the recital be yeneral, or contain, as it is said, a generality merely, he will not be estopped by it. What then is the nature of the recital in the present case ? It seems rather to be a part of the description of the ground intended to be conveyed : or an explanation of it, with a view to fix more particularly its location and connection with what had been done before. The words of it are, "being part of a larger lot or piece of ground, which Joseph Reed, of, &c., by indenture bearing date the 9th day of October, 1818, granted and conveyed unto the said Charles J. Ingersoll, in fee, clear of all liens and incumbrances whatsoever." In it two distinct facts may be said to be affirmed. First, the existence of the indenture mentioned ; second, that the ground then about to be conveyed, was a part of the ground conveyed by the indenture. Either of these facts perhaps, according to the authorities cited, the plaintiff would not be at liberty to deny ; but it is perfectly manifest, that the second is the only one that could have been considered at all material ; because as to the ex- istence of the indenture, it was present, or if not, was on record, open alike to the inspection of both parties, proving its own exist- ence. But the fact of the ground, then about to be conveyed to Mr. Smith, being part of the ground conveyed by the indenture to the plaintiff, might not appear satisfactorily, by merely com- paring the description of the ground given in the deed, which the plaintiff was then about to make, with the description of the 1836.] OF PENNSYLVANIA. 356 (Ingersoll v. Sergeant.) ground in the indenture, conveying it to him without such asser- tion of the fact. Whether the indenture mentioned in the recital, conveyed the ground to the plaintiff " clear of all liens and in- cumbrances whatsoever," was not so much a matter of fact as a question of law to be determined by a proper construction of the indenture, which, as it was upon record, Mr. Smith had the same opportunity of being correctly informed in regard thereto, that the plaintiff had, and must be presumed to have decided for him- self. Caveat emptor is the maxim in such case. If it had been the intention of the parties, that the plaintiff should have con- veyed to Mr. Smith, clear of all liens and incumbrances, nothing could have been more easy, than to have inserted in the deed, a formal and express declaration or covenant to that effect ; which certainly ought to be done in all cases, when so intended by the parties. To say that the recital shows that such was their *intention, seems not to comport well with other parts r*q7-j of the deed. For the express covenant of special war- L ranty given in it by the plaintiff is certainly powerful, if not con- clusive evidence to show, in the absence of any other express covenant on his part, that it was not the design that he should be bound to do any thing beyond what Avas fairly embraced within it ; or be restrained from doing any thing that was not inconsist- ent with it. Besides such recital as in the present case, is gen- erally the work of the scrivener, made from the muniments of title, placed in his hands, for drawing the deed, without any di- rection whatever from either of the parties to introduce it ; and it would therefore seem unreasonable to give it the effect of a covenant not intended by the parties. But the truth of the re- cital in question, appears to me to be sustained by what would be the common understanding of the deed of conveyance from Mr. Reed to Mr. Ingersoll. Though from the face of it, it is plain that the ground was incumbered with the ground-rent when conveyed, yet as the habendum, to which it properly belongs to declare the nature and extent of the estate intended to be con- veyed, gives the ground to Mr. Ingersoll, his heirs and assigns, " free and discharged from the aforesaid rent-charge, liens and in- cumbrances whatsoever," it would generally be pronounced a deed conveying the ground " clear of all liens and incumbrances whatsoever." And this doubtless was the understanding of the parties at the time of its execution ; and, if so, ought most cer- tainly to be so construed. But it has been alleged also on the part of the plaintiff, that Mr. Reed was the owner of both the ground and the rent, and that this union of ownership produced an extinguishment of the rent. This conclusion would be correct if the fact was only so ; but he never was invested with the legal title to the rent. And VOL. i. 24 357 SUPREME COURT [March (Ingersoll . Sergeant.) although he was the equitable owner of it by having bought and paid for it, yet that was after he had sold and conveyed the ground to the plaintiff, so that had he taken the legal title for the rent to himself in his own name, instead of having it conveyed to Mr. Sergeant, the extinguishment of the rent could not have been produced by the mere unity of the two estates in the same person. Again, it has been said that Mr. Reed, though not the owner of the ground at the time he became the equitable owner of the rent, yet he was bound by his covenant with the plaintiff to extinguish it, and therefore the plaintiff ought, in equity at least, to have the benefit of the purchase of the rent, and to have it considered as extinguished. But this would be to set aside the purchase and the right of Mrs. Sergeant the defendant contrary to a well set- tied rule of law, that a bona Jide purchaser for a valuable consid- eration of the legal estate from a trustee without notice of the equitable right or claim shall be protected. This rule is founded in equity as well as law, because Mrs. Sergeant, or her agent, when about to make the purchase of the ground-rent from Mr. Sergeant, seeing that he was invested with the legal title to it, r*qcQ-i *was not bound to look or to inquire further, and even J if she had been disposed to do so, she had no means of ascertaining Mr. Reed's interest or concern in it ; and having under these circumstances paid a full price for it, her equity to have the benefit of the purchase was at least as strong as that of the plaintiff, and having got the legal title added to her equity, she is clearly entitled to a preference.* It has also been contended, that the extension of the time for redeeming the ground from the charge of the rent was an extin- guishment of it. I am unable to perceive how, or upon what principle this can be so. Even as between the plaintiff and Mr. Reed this act would not seem to have been at that time inconsist- ent with the letter of the covenant, at least on the part of the latter, whatever may be thought of its spirit. The covenant was only to extinguish the rent within the time then allowed, or such further time as might be obtained for that purpose, and in the mean time to keep the plaintiff harmless and indemnified from the rent ; thus evidently contemplating the procurement of such ex- tension of the time for extinguishing the rent, if it should be prac- ticable, and desired by Mr. Reed. But suppose it had been otherwise, how is it possible that it could affect Mrs. Sergeant's title to the rent ? She was a stranger not only to the dealings between the plaintiff and Mr. Reed, but was without any knowl- edge whatever of the claim or interest that the latter had in the This case was brought before the Court again on this point, and re- versed, 7 Barr, 340 ; 3 Harris, 343. 1836.] OF PENNSYLVANIA. 358 (Ingersoll . Sergeant.) rent, or of his obligation to the former, and took the rent, after having paid a fair price for it, without the least apparent infirmity about it ; and appears to have quite as good a title to so much of the rent as upon a proper apportionment thereof shall be found to be equal to the value of the ground retained by the plaintiff, as he has to the ground itself. On the part of the plaintiff, this case has also been compared to that of a debt owing by two partners in trade, or two joint, or joint and several obligors, where a release given to one by the creditor, will for ever discharge both. The law as to these cases is certainly so, (Co. Lit. 132, a ;) but this is on the ground of their joint liability being taken away or destroyed by the release of the creditor, that the other is released, as well as the one to whom the release is executed ; because if he were to be held liable at all after the release, it could only be severally, which would be permitting the creditor without his consent, to change the nature of his liability from that of a joint, or joint and several liability, into a several liability alone : in short, to vary and change the terms of the contract. But in regard to those who are severally and not jointly liable for the payment of the same debt, it is obvious this cannot be the effect of a release made in favor of one of them alone ; for never having been liable otherwise than sever- ally, the party not embraced in the release, cannot be said to have the nature of his liability changed 'in the least by it ; and therefore it is, that a release of one of two several obligators or covenantors, will not release the other ; see Mathewson* s case, (5 Co. *23, Cro. Eliz. 408, 546.) And so the lia- bility or obligation of Mr. Ingersoll and Mr. Smith to pay the rent, whatever it was, being clearly several and not joint, the release could not change the nature of Mr. Ingersoll's lia- bility, nor increase the extent of it. But if it should be thought that the analogy is rendered more close to the case of joint debt- ors by considering the land as the debtor in this case ; it is suf- ficient to observe that it is in its nature divisible, and susceptible of being made liable separately according to the value of its re- spective parts, when divided by the act of the parties ; and as Mr. Ingersoll was the first himself to divide it, he has no just cause to complain or to object now, that his act in this behalf was assented to by the party invested with the legal title to the ground-rent at the time. The case of one of several vendees, of distinct and separate parts of a lot of land, subject at the time of the sale thereof, to the payment of a mortgage, having his part released from the mortgage debt by the mortgagee, has been presented by the counsel for the plaintiff as analogous ; and it has been argued that the act of assembly, of the 22d of April, 1822, entitled "A 359 SUPREME COURT [March Term, (Ingereoll t>. Sergeant.) supplement to an Act, entitled ' An Act for taking land in execu- tion for the payment of debts,' " shows that anterior to the pass- age of it, such release would have been a release of the whole debt. In this particular, however, this act is only declaratory of what the law was before, and was so considered by this court in Kulp v. JFisher, (1 Watts, 494.) See also Hicks v. Binyliam, (12 Mass. Reps. 300 ;) Crawford v. Crawford, (2 Watts, 339.) But in addition to this the cases do not appear to be alike. A debt secured by a mortgage is a mere chose in action, entire in its nature, founded upon a past consideration ; whereas the ground-rent here is an inheritable estate that is divisible in its nature ; and the rent falling due annually, may be said to be the fruit of it, which becomes payable only in consideration of .the enjoyment of the land, which is also divisible in its nature, under the original demise or conveyance thereof, reserving the rent. It is true however as Lord Chief Baron Gilbert, says, Gilb. on Rents, 172, that formerly it was doubted whether a rent service incident to the reversion could be apportioned by a grant of part of the reversion, and whether the whole rent would not in such case become extinct ; as the reversion and rent incident thereto were entire in their creation, it seemed to be thought hard by some that they should be divided by the act of the landlord, and the tenant thereby be made liable to several actions and dis- tresses for the recovery of the rent. The case however, before us, can scarcely be said to be liable to this objection, because the first division was by the act of the tenant, in selling and convey- ing to Mr. Smith a part of the ground. But still this doubt did not remain long, because as the Chief Baron says, it " was too narrow and absurd to govern men's property long ; for if I make a lease of three acres, reserving three shillings rent, as I may rjcqpn-i *dispose of the whole reversion, so may I also of any -1 part of it, since it is a thing in its nature severable ; and the rent as incident to the reversion, may be divided too, because that being made in retribution for the land, ought, from the na- ture of it, to be paid to those who are to have the land on the expiration of the lease ;" this reasoning is strikingly forcible to prove, that where the whole of the ground-rent in fee is still owned by one person, but the land upon which it was reserved has been divided and conveyed away by the tenant in several parcels, to as many different persons, the rent may, as it becomes* payable, be apportioned among them, according to the value of their respective portions of the whole land, and they be thus compelled to pay it. To this course there does not appear to be even the shadow of an objection. For in the case of a rent inci- dent to a reversion, where the reversion has been divided and sold in separate parcels to different vendees, who claim to have the 1836.] OF PENNSYLVANIA. 360 (Ingersoll v. Sergeant.) rent paid to them in a corresponding ratio, with their respective portions of the reversion, each is entitled to sue or to distrain for his portion, if not paid ; and it is said that the tenant receives no prejudice thereby, and has no just cause of complaint, "be- cause it is in his power, and it is his duty, to prevent the several suits and distresses, by a punctual payment of the rent," Gilbert on Rents, 173; 3 Kent's Com. 375, 6, First ed. And yet there is certainly much more color for complaint on the part of the tenant in this last case, than in the case before us, or the one previously mentioned. It may be further observed that the ground-rents are a species of inheritable estates, that has increased greatly of late, within the city and county of Philadelphia, as also in some other parts of the State, and that the public have an interest in placing them on the same footing, as nearly as practicable with other estates, so as to make them answer the common exigencies of their respective owners. Unless then they can be apportioned, it is evident that they must fall very short of being made the means of supplying the necessaries and com- forts of mankind. It may become necessary for the owner of a ground-rent estate, to divide it among his children, or to sell a part of it, to answer the exigencies of his family ; but if he cannot sell and release a part of it to an owner of part of the ground upon which it was originally reserved, without extinguishing the whole rent, it is apparent that the value of both estates must be diminished, because it will prevent the one from ever buying of the other in such case, though otherwise it might be his interest to give more for the purchase than anybody else would do. Such a restriction is not to be tolerated where the policy of the law is to afford every possible facility to the change of ownership in property, according to the will of the holders thereof. I have now presented my views in regard to the questions in- volved in this case ; and the reasons which have determined me in coming to the decision adopted by the court, to wit, that the release is only an extinguishment of so much of the rent as may be equal to *the comparative value of the ground bought by Mr. Smith of the plaintiff, at the time of the sale [*361] thereof; and that the defendant is entitled to recover the residue of the rent due at the time of the distress. This apportionment however, can only be made by a jury, Hodgkins v. Robson, (1 Ventr..276, s. c. Pollex. 141;) Fish v. Campion, (1 Roll. Abr. 237,) and as the verdict found by the jury does not provide for it, the matter will have to be submitted to another jury, unless the parties will agree to take the price mentioned in the deed from Mr. Reed to Mr. Ingersoll, as the value of the whole of the ground subject to the ground-rent, at the time the release was given, and the price mentioned in the deed from Mr. Ingersoll to 361 SUPREME COURT [JfarcA Term, (Delamater's Estate.) Mr. Smith, as the value of the part released from the rent. If this be agreed to, the whole case can be settled now ; otherwise the verdict must be set aside, and a Venire de novo awarded. SERGEANT, J. took no part in the decision of this cause, being related to the defendant. Cited by Counsel, 5 Wharton, 62, 528 ; 9 Watts, 262 ; 8 Watts & Ser- geant, 116, 381; 2 Barr, 170; 4 Id. 88; 7 Id. 843; 8 Id. 266; 1 Harris, 255 ; 6 Id. 212 ; 8 Id. 203 ; 10 Id. 87 ; 8 Wright, 41 ; 4 P. F. Smith, 303 ; 7 Id. 104 ; 1 Grant, 404. Cited by the Court, 3 Wharton, 364 ; 8 Watts & Sergeant, 185 ; 7 Barr, 194 ; 10 Id. 123, 283 ; 8 Wright, 495 ; 2 P. F. Smith, 44 ; 2 Grant, 245. See also 4 Watts, 116. [*362] ['PHILADELPHIA, APRIL 4, 1836.] DELAMATER'S ESTATE. APPEAL. 1. A testator after several legacies of bank stock and other stock and money, concluded his will as follows : "The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen fur- . niture, looking-glasses, and crockery, &c., &c. I give to my two daugh- ters to be divided between them, part of whicty they are at liberty to sell, if they shall not need them. These with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, hoping that they may live to enjoy much contentment and happiness." The testator had several shares of bank stock and other stock, not specifically bequeathed : Held, that they did not pass under the above bequest. 2. A testator having two daughters, A. and B. and no other children ; and having certain shares of bank stock, bequeathed one-half of the number of shares to his daughter A. who was at that time unmarried ; but said nothing respecting the remaining shares. He gave several legacies of other stocks and effects to A. and B., and appointed his nephew C., his son-in-law D. (husband of B.) and his two daughters A. and B. to be executors. About a month after the probate of the will, A. by an instru- ment (not actually sealed) reciting that the omitted shares were believed to have been intended by her father for her sister B., granted, assigned, &c. the said shares to B. for her sole and absolute property, and re- quested the executors of her father to transfer them to her. The shares were accordingly transferred by the executors to B. ; and in the settle- ment of their accounts, they claimed credit for such transfer. Held, on exception to such credit, that in the absence of evidence of mistake or direct fraud or imposition, there was nothing in the relation in which C., the executor, or his wife B. stood towards A., to require the Court to rescind the assignment and transfer. 1836.] OF PENNSYLVANIA. 302 (Delamater's Estate.) THIS was an appeal from a decree of the Orphans' Court for the County of Philadelphia, in the matter of the accounts of M. W. Pike and Jacob Dunton, executors of the will of John Dela- mater, deceased. The circumstances which gave rise to the only question in con- troversy in this case, are as follows : John Delamater of the City of Philadelphia, died about the 10th of December, 1829, leaving two children only, viz. Ann, and Caroline, the wife of Jacob Dunton ; and leaving also a will dated the 25th of July, 1829, which it is deemed necessary to insert entire, as follows : " The last Will and Testament of John Delamater, taken by himself, viz: In the name of God, amen. I, John Delamater, formerly of the City of New York, now of the City of Philadelphia, in the State of Pennsylvania, being in good health and sound disposing memory and certainty of death, Do make and publish my last Will and Testament in manner and form following, to say, * First. I do order that all my just debts and funeral r*qo-i charges be paid. Item. My will is that my small farm at White Plains, West Chester County, in the state of New York, if not sold during my life, shall be sold soon after my death by my executors hereinafter named, for the greatest and best price that can or may reason- ably be had or gotton for the same ; and they my said executors, to the purchaser or purchasers thereof, his, her or their heirs and assigns forever, a good and sufficient deed or deeds of conveyance in fee simple, deducting the cost and expenses attending the said sale, and sign the said deed or deeds, if required, (free from every incumb ranee.) Item. I give to my niece, widow Nancy Purdy, the amount of one-third of the whole amount of the sales of the White Plains farm, be it more or less, viz.: One-third of the whole amount of sales to my niece, Jennett Pike, be it more or less ; and one-third of the whole amount of the sales of the White Plains farm to my nephew, Marinus W. Pike, be the same more or less. And in addition to the aforesaid legacies, I give and bequeath to my niece, widow Nancy Purdy, four shares of the capital stock in the Manhattan Bank, New York, with their advances and divi- dends due thereon at the time of my death ; the subscription to this Bank is fifty dollars per share. And to my niece, Jennett Pike, in addition to her former legacy, one share in the capital stock of the Bank of New York, subscription five hundred dollars per share, with its advances and dividends that may be due thereon. And to my nephew, Marinus W. Pike, in addition to his former 363 SUPREME COURT. [March Term, (Delamater' s Estate.) legacy, four shares in the capital stock of the Manhattan Bank, New York, subscription fifty dollars per share, with their advances and dividends. The stock on the farm at White Plains is to be considered as the property of Jennett Pike, with every other article of mine at the Plains, is to be considered as her property. If the White Plains property is sold previous to my death, it is my intention of making the same distribution of the amount of sales that will be done if sold after my death : and if either of my nieces should die previous to my death, my will is that their proportion shall be equally divided among their children or their nearest kindred. I trust that my executors will . aid and assist my two nieces in putting out their little money that it may prove productive. Item. I give to James S. Caldwell, in trust for my grandson, Lewis John Caldwell, four shares in the capital stock of the New York Manhattan Bank, with their advances and dividends. If Lewis should die in a state of infancy, then those four bank shares are to become the property of his sister, Eliza G. Caldwell. Item. I give to my son-in-law, Jacob Dunton, in trust for my grandson, Edward T. Dunton, four shares in the New York Man- I"*3fi41 hattan *Bank, with their advances and dividends: and J if the aforesaid Edward T. Dunton should die in a state of infancy, then the four bank shares is to be considered the pro- perty of his brother Albert Dunton. Item. I give to my kinswoman, Mrs. Mary Wood, the sum of fifty dollars, if she should be living at my death. Item. I give to my hired woman Nancy McNeill, the sum of fifty dollars, if she should be living in my family at the time of my death. These legacies are to be paid soon after my death out of any loose money of mine that may remain in bank, or may come in after my death. Item. I give and bequeath to my dear daughter Ann Delama- ter, her heirs, administrators, or assigns and executors, my house and lot on the west side of Delaware Eighth Street, Philadelphia, situate between Mulberry and Cherry Streets, free of every in- cumbrance ; (she has continued with me until the present time and shared with me in my many troubles) taxes to be paid by her. Item. I give to my aforesaid daughter, Ann Delamater, one eq\ial moiety of my house and lot in Fulton Street, New York, (free from every incumbrance,) the other moiety is to be consid- ered as the property of her sister, Caroline Dunton, their respect- ive heirs, administrators and assigns, (share and share alike,) as tenants in common, and not as joint tenants. Item. I give and bequeath to my daughter, Ann Delamater, 1836.] OF PENNSYLVANIA. 364 (Delamater's Estate.) one Springsbury lot of ground, and to her heirs, executors, administrators and assigns, situate corner Schuylkill Third and Hamilton Streets, (directly opposite James Caldwell's house,) one hundred and twenty-five feet in Hamilton Street, along Third Street to the Canal, 125 feet on the rear. Item. I give to my daughter Ann Delamater, forty shares in the Bank of the United States, with their advances and dividends, (subscriptions to this bank one hundred dollars per share ;) like- wise three shares in the capital stock of the Bank of Pennsylvania, with their advances and dividends subscription to this stock four hundred dollars per share. Item. I further give to my aforesaid daughter Ann ten shares in the Germantown and Perkiomen Turnpike Co. subscription to this stock one hundred dollars per share (it is now under par.) Likewise thirty-five shares in the Market Street Permanent Bridge Co. subscription to this stock is ten dollars per share : whole amount of subscription three hundred and fifty dollars. (My wish is that none of the above mentioned stock should be parted with, but content. with the dividends as they may grow due.) To my daughter, Ann Delamater, I give my large folio family Bible, my own portrait, and all other pictures in the back par- lor, and all my plate and plated waie, of too insignificant value to be divided, (with every other article she may claim as her property.) *Item. I give and bequeath to my dear daughter Caroline Dunton, wife of Jacob Dunton, Jr., her heirs, executors and assigns for ever, one moiety of my house and lot of ground in Fulton Street, New York, with her sister, Ann Delamater, share and share alike, free from every incumbrance, as tenants in common, and not as joint tenants. (This property is under rent to Nathaniel Bunce, at 600 dollars per annum.) The taxes must be paid regular. Item. I likewise give to my aforesaid daughter, Caroline Dun- ton, one certificate of the debt of the United States, amount one thousand dollars, interest 4J per cent, paid quarterly at the United States Bank the principal of this debt will be paid off in a few years. To my aforesaid daughter, her heirs, executors and assigns, one Springsbury lot of ground, situate corner of Schuylkill Fourth Street and Hamilton Street, 125 feet on Hamilton Street, and runs down Fourth Street midway, and back on James Caldwell's lot of the same width. Taxes must be paid annually on this lot. This lot will be valuable in time. I give to my daughter, Caroline Dunton, sixteen shares in the Frankford and Bristol Turnpike Co. -cost of subscription one 365 SUPREME COURT [March Term, (Delamater's Estate.) hundred dollars per share. This stock is under par. Dividend declared early in May and November. Item. I give to my daughter, Caroline Dunton, in trust for her son Edward T. Dunton, my gold watch, &c. &c. to be given to him when he is of age to take care of it. If he should die in in- fancy, it is to be the property of his brother, Albert Dunton. Item. I give to my daughter, Caroline Dunton, all my wear- ing apparel of every description, both linen and woollen, &c. &c. (I should wish of my clothing sold they may be of service to her children.) I likewise give her my second size family Bible, it contains the family register. I likewise give her the large por- trait of Gen. Washington, with all the pictures belonging to me in the back parlor, the old family clock, of but little value but as an ornament. Item. I give to my daughters, Ann and Caroline, my family pew in the south gallery of the Second Presbyterian Church, Arch street ; this pew cost 110 dollars ; the pew rent paid half yearly, at sixteen dollars per annum. Item. My will is that my executors hereafter named, pay or cause to be paid to each of my nieces, widow Nancy Purdy and Jennett Pike, soon after my death, out of any money of mine that may be in bank, to each the sum of twenty-five dollars, taking a receipt for the same. The remainder of my worldly substance, consisting of furni- ture, bedding, carpet, china, kitchen furniture, looking-glasses, and crockery, &c. &c., I give to my two daughters, Ann Delama- ter and Caroline Dunton, to be divided between them, part of which they are at liberty to sell if they should not need them. These with all moneys of mine that may remain in bank at the ^ me ^ m y death, w ^h. all *claims or demands of what- ever nature, I give to my two daughters, Ann and Caro- line, hoping that they may live to enjoy much contentment and happiness. The property bequeathed to my heirs is, to them, their heirs, executors, administrators, or assigns for ever, free of all incum- brances. And lastly, I do nominate and appoint my nephew, Marinus W. Pike, my son-in-law, Jacob Dunton, Jr., to be executors, and my two daughters, Ann Delamater and Caroline Dunton, executrixes of this my last will and testament, hereby revoking all others by me at any time heretofore made. I do declare this only to contain my last will and testament." The will was proved on the 14th of December, 1829, and let- ters testamentary were granted on the same day to the two execu- tors, Dunton and Pike. At the date of this will and at the period of the death of the 1836.] OF PENNSYLVANIA. 366 (Delamater's Estate.) testator, he was possessed of the following stock, which was not mentioned in the will, viz. 40 Shares in the Bank of the United States. 3 Shares in the Bank of Pennsylvania. 22 Shares in the Manhattan Bank of New York ; with respect to which, he of course died intestate, unless they are to be considered as passing under the residuary clause of the will. On the 18th of January, 1830, Ann Delamater, executed the following instrument : " Know all men by these Presents, That I, Ann Delamater, of the City of Philadelphia, one of the daughters of John Delamater, deceased, have granted, assigned, bargained and sold, and hereby do grant, assign, bargain and sell unto my sister Caroline Dunton, all my right, title, interest and claim of, in and to forty shares in the capital stock of the Bank of the United States, with their ad- vances and dividends and three shares in the capital stock of the Bank of Pennsylvania, with their advances and dividends which forty-three shares are not mentioned in the last will and testament of the said John Delamater, but are believed by me to have been intended by him for my said sister Caroline Dunton, inasmuch as he bequeaths a similar number of shares in each of those banks to me, and takes no notice of the other half of them which belonged to him. And I do request that the executors of my said father, will transfer the said forty shares of the Bank of the United States, and three shares of Bank of Pennsylvania stock to my said sister, or to any person for her use whom she may designate, as and for her sole and absolute property, as if the same had been specifically bequeathed to her and not omitted in the said will. Witness my hand and seal *this eighteenth day of January, one thousand eight hundred and thirty. ANN DELAMATER." Signed, sealed and delivered ] in the presence of us, WM. STEVENSON, JR. JOHN A. ELKINTON." J In compliance with the directions of this instrument, the two acting executors, Mr. Pike and Mr. Dunton, transferred the 43 shares on the 21st of January, 1830, to Caroline Dunton. On the 29th of December, 1830, Dunton the executor, settled ^ an account in the Register's office, in which among other matters he claimed credit for the 43 shares transferred to his wife. This account was headed with the names of both executors, but it was sworn to by Dunton alone. 367 SUPREME COURT [March Term, (Delamater's Estate.) In the Orphans' Court, exception was taken to this credit by John A. Elkinton, who had married Ann Delaraater ; and the case was referred to an auditor, who, after hearing the evidence, and the arguments of counsel, reported that the transfer of the stock was made under sufficient authority, and that the account as settled was correct. Exceptions were made to the report, which however, was confirmed by the Orphans' Court after argu- ment on the 27th of October, 1835; whereupon an appeal was taken to this Court. It was agreed by the counsel that the auditor's notes of the testimony should be received, in lieu of taking depositions de novoj and they were accordingly annexed to the record. Mr. Pike, the co-executor, testified as follows : "I was present when Miss Delamater signed the instrument respecting stock. To the best of my recollection, the company consisted of Dr. Elkinton. First time I saw him. Mr. Steven- son. The other company I can't recollect. Think Mr. Dunton was present and Ann Delamater. I think Mr. Dunton had the paper in his possession down stairs. It was signed up stairs in the back parlor. Dr. Elkinton, Mr. Stevenson and three or four friends from Princeton were present. I can't particularly mention the conversation. It was down in the kitchen that I first saw them. As respects any particular conversation I can't speak positively. Previous to the paper being signed the cir- cumstances were. not very agreeable. I can't say particularly what the circumstances were. There was no threatening lan- guage. He told Mrs. Dunton something like he did not think it right the house should be kept open, though the house was her own. He signified about paying attention to company, when she should be attending to the business he came after. I can't say particularly whether he read the paper to her. He did not tell her she must sign it. I did not see the paper before it was l"*3fi8T brought *that night. I don't think I did. If I recol- lect right I went past my house to Ann's with Mr. and Mrs. Dunton. A little misunderstanding took place. I won't say for certain if Mr. Dunton read the paper that night. Un- pleasant situation. Two children disputing. I viewed the visit of Mr. and Mrs. Dunton to be for the transfer of stock. I went down with Mr. Dunton to Mr. Ingersoll, as respects a correct way of doing business according to the will. I don't know who drew up the 'instrument. A few weeks ago I called on Mr. Dunton ; he said he could prove by Mr. Ingersoll that I knew all about it, when I was at her house. Then he said they were pumping me. If I was ever consulted about the paper it must have been through the influence of Mr. Ingersoll, as connected with other business. It may have been. I stood as it were a 1836.] OF PENNSYLVANIA. 368 (Delamater's Estate.) thorn between the two. I never approved of the paper before or since. Always thought what was left out of the will was to be equally divided between the children. I see plainly as cir- cumstances have occurred, how things stand. It Avas thought after the transfer took place they would be a harmonious family. Instead of that, they are not friends, and I among the rest of them as I find. It was about light in the evening when we first went there. They went in the down door stairs. She came down. A little argument arose, unpleasantly for me. I can't say what was first said. The conversation was on the transfer of the stock. Mrs. Dunton reflected on Mr. Dunton, that it was not executed down stairs. She said she would not put her foot in the house again. At that moment Ann D. came out and said she would sign it. I asked Ann D. Mr. Elkinton not present previous to her signing it. This question was down in the kitchen. I stand here disinterested, with a clear con- science. There was a little broiling down stairs. I told Ann this. I said I had one question. Well, said she, Marinus, what is it? Said I, if you sign that instrument, you will never reflect on me. No, says she, I never will. These are the words to the best of my recollection, for I was always opposed to it. This was down below. She signed it up stairs in the back room. If she had staid a moment longer it would not have been signed, for they were going away. Mrs. Dunton said she would never enter the house again. Mrs. Dunton blamed Mr. Dunton for not having it signed down stairs. Dr. Elkinton and Mr. Steven- son were not below. None below but the family. They went up from the kitchen to go away. Ann came out. I can't say if she had a pen in her hand. The gentlemen witnessed it. A short time afterwards Mr. and Mrs. D. went away. The con- tents of the paper were not communicated to the gentlemen who signed. I don't think it was. It was done in a moment. I know they did not read it. I suppose she was more than 21. She was more than 25. Ann is the oldest sister ; I called upon you (Mr. Ingersoll) once or twice with Mr. Dunton as executor ; I remember coming to consult you about transfer of stocks ; Mr. Dunton came ; *I did not recollect your drawing the r*o^q-| paper ; I recollect his coming in harmony and good will L to me, and your drawing the instrument ; I don't recollect that I intimated any objection to your drawing this instrument ; at the time it was executed I did not state my objections to Miss Delamater ; I don't know that I told her -any thing more than what I said before as to the question. I told her about not reflecting upon me ; I don't know if it was the same evening I was at your office. In conversation with Ann, I have stated my objections to the instrument ; she was an orphan ; no stock in 369 SUPREME COURT [March Term, (Delamater' s Estate.) New York that I know of, was undisposed of by will ; Mr. Dun- ton asked Mr. Ingersoll as to all proper proceedings under the will ; I recollect Mr. Dunton having this instrument at my house. There was some argument down stairs. She partially opposed signing it on account of the dispute. The will was the subject of conversation ; I heard her say that she thought her papa meant that Caroline should have an equal proportion of the estate with her ; she spoke of her father having more stock than in the will ; she viewed it in that way, that her father meant an equal division between them. There was jangling about the instrument ; then she made up her mind about the paper. It was a family quarrel among them ; I can't say she did positively object to signing the paper down stairs. Mrs. Dunton said that in case the transfer was made, and it was not right, it should be amicably settled be- tween them ; I supposed she meant she would give back half of it. The marriage took place ten months afterwards. Nothing was said about a seal to the paper." Ann Kremer testified as follows : " I heard a conversation last Tuesday week at Mr. Elkinton's, between those persons. I went there with Mr. Dunton with a view of questioning Mrs. Elkinton on account of the 'money signed over. She said she believed it to be an act of justice at the time. Dr. Elkinton was present. She said there was no force used when she signed the paper. She said she went to a grocery store opposite for a pen and ink. Dr. Elkinton said that as far as he knew, there was no force used. She said she knew per- fectly well the contents of the paper when she signed it. Don't remember any thing else that he said. Don't recollect Mrs. E. saying that she signed on condition that it (the property) should be returned to her if she objected to it. Mrs. Dunton said she would be willing to restore it to Ann Delamater, not as Mrs. Elkinton. The conversation was long, and there was a great deal that I could not recollect. Mrs. Elkinton said something, I do not recollect, (about a condition to the paper.) I do not recollect if she said any thing about a condition. I think Mrs. E. said some- thing about signing on condition to restore it, and Mrs. Dunton said in answer that she would be willing to restore to her as Ann Delamater, and not as Mrs. Elkinton. I recollect hearing some- thing of the kind about Mr. Dunton insulting her, but not as to r*37fn * na ^ being *her motive for signing it. Don't recollect J at what time she said Mr. Dunton insulted her. Can't say whether Dr. E. or Mrs. E. made the remark about the con- dition. No one said there was a condition at the time it wag siyned, that it should be returned if objected to. I understood it was said in conversation between themselves. I think before the paper was signed. They did not say that she even had de- 1836.] OF PENNSYLVANIA. 370 (Delamater's Estate.) manded it again. I live with Mr. Dunton's father. Do not pay board there. I make my home there. I am from Wilmington, Delaware ; I was born there 20 years next August. I am a niece of Mr. Dunton, Sen. Nothing particular talked over with Mr. and Mrs. Dunton. Mr. Dunton, Jr. was at the house when we went there. The object of our visit was not talked of before him. Mr. Dunton was sick when we went there. It was for the purpose of knowing whether she signed it as an act of justice. She said she signed it believing it at the time to be an act of jus- tice. No one else present." Nancy McNeil testified as follows : " I lived in the family of old Mr. Delamater nearly twelve years. Immediately before and up^to his death. Staid there four or five weeks after his death. Up to the time Miss Delamater gave up house-keeping. I lived there at the time Mrs. Dunton was married. He always seemed to be very attentive to his business. I have frequently seen him writing. He had a very good memory. Always seemed as if he had a most excellent memory. Always kept his faculties to the very last. I have heard him say, after Mrs. Dunton was married and settled, that he had provided well for her, and got her many good things. I have often heard him say, he would take good care of Ann. That she was not as well protected as Caroline. She had not a husband then. Caroline got bureau, carpets, &c. She had a house furnished by Mr. Delamater. It was a three story brick house. Never saw Dr. Elkinton. Believe it was after Mr. De- lamater died. He came there to visit a lady from New York. About three weeks after D.'s death. It was in January. He died 7th of December. Had some furniture. There were some words between Mr. Dunton and Mr. Delamater. Mr. Dunton had not been to the house for some time, and Mrs. Dunton too. I think nearly a year that they abstained from coming. Mr. Delamater had a spell of sickness, and she came to see him. Mr. Dunton and Caroline were married in private, i. e. unknown to the family. The family and all of them did not like it, but they did not seem to be dissatisfied. Never saw Dr. Elkinton but once at the house. He had been there but one evening, and I was not at home. It was in the early part of January that he was there. I attended to the household concerns there. Kitchen below. House in Eighth street above Arch. Cellar kitchen. My general place in the house was in the kitchen. This dispute between Mr. Delamater and Mr. Dunton took place several years ago. The brother and Mr. *Dunton had the dispute at first. The brother was Mr. Caldwell. Mrs. Dunton took part with her husband against Mr. Caldwell who lived there then. I can't say what he had been writing, when I saw him. It was said 371 SUPREME COURT [March Term, (Delamater's Estate.) Dr. E. came there to see a lady from New York. I live at corner of Second and Mary streets. I keep house. Am not married. Keep store there. I left there on the llth of January, 1830. Ann Delamater kept house for her father, after her mother's death, which was about seven years." Ellen Pike testified. " I was on a visit to Miss Delamater at the time this paper was signed. Mr. and Mrs. Dunton entered the room. Mr. Dunton laid the paper on a stand. I think it was Mr. Dunton. Ann signed it. Previously to the gentlemen witnessing the paper, she asked if it was necessary the paper should be read, and Mr. Dunton said, oh no. Mr. Stevenson and Dr. Elkinton witnessed it. This was after she signed it, but before the gen- tlemen witnessed it. I did not see the contents of the paper. Only saw it lying on the table. Dr. Elkinton was in the house about half an hour before the paper was signed. I was intimate with Miss Delamater. The acquaintance between her and Dr. Elkinton commenced either the 4th or 5th of January. I think the 8th. He met her at Dr. Burr's on the 8th January. Called one morning afterwards, and then was there that evening, which made the third time he had seen her. I don't think he had any knowledge of the contents of the paper when he signed it. I have every reason to believe he had not. He was in the room with me all that half hour. There was not any engagement between them of marriage at that time, I think. About three or four minutes after the paper was signed Mr. Dunton retired. He put it in his pocket directly after it was witnessed. My father, Mr. and Mrs. Dunton and Ann came into the room at the same time. The paper was signed by the door. I did not see her read it. I don't think she did read it in the room. They were down stairs together. She did not say any thing about the con- tents of the paper. She was out of the room when I came in, and was out until she came in in search of an inkstand. It was about half an hour after I came, that she came in for the ink- stand. She was in and out at the time. The inkstand was got in the neighborhood somewhere. I think Mr. Dunton called on the gentlemen to witness her signature." Dr. Burr proved that the acquaintance of Dr. Elkinton with Miss Delamater, commenced on the 9th of January, 1830. Mr. F. W. Hubbell, for the appellant. The release or assignment of the 43 shares of stock was ob- tained under circumstances which authorize and require the Court, sitting as a Court of equity, to set it aside, and disregard all pro- ceedings which have been had under it. 1836.] OF PENNSYLVANIA. 372 (Delamater's Estate 1 .) *1. The recitals are erroneous. Mr. Delamater is not r***7c>-\ to be considered as having died intestate with regard to this stock, since the words in the residuary clause are broad enough to carry it. But if it were otherwise, it would by no means fol- low that it was an accidental omission, and that he intended to place both sisters on the same footing. The will shows that he entertained a preference for his unmarried daughter, and if he gives her a greater proportion of his property, it will be seen that, he has provided liberally for Mrs. Dunton's children. It appears that besides the 40 shares in the Bank of the United States, and 3 shares in the Bank of Pennsylvania, omitted in the will, he owned 22 shares in the Manhattan Bank of New York, and 6 shares of turnpike stock, which are not mentioned. This fact was not communicated to Miss D. at the time she was required to sign the paper. 2. As between these parties the release was void. Miss D. stood in the relation of cestui que trust to Mr. Dunton ; and the policy of the law wisely forbids all dealings between persons so circumstanced, whether they be in the nature of sales or gifts. It is only after the parties, being sui juris, have deliberately dis- solved the relation of trustee and cestui que trust, that the law permits them to enter into contracts with each other. It is true that the gift in this case is to the wife of the trustee, but the ob- jections are as strong, and the rule equally applicable, as if the gift were directly to the husband. It is true, that Miss D. was appointed a co-executor by the will, but she never received letters testamentary, and was ignorant of her rights and powers. She was a young woman, dependent upon her sister's husband for information and counsel. The evidence shows that the paper was signed under circumstances calculated to alarm her, and to deprive her of suitable deliberation. The paper was drawn by the professional adviser of Mr. Dunton, and it does not appear that it was ever read over to her. The authorities show that it lies upon the party setting up a paper like this, to prove that the party executing it was made acquainted with all material facts and conusant of his rights. Mr. Hubbell cited the following cases : Davoue v. Fanning, (2 Johns. C. R. 252 ;) Fox v. Mack- reth, (2 Br. C. C. 400;) Osmond v. Fitzroy, (3 P. Wms. 131 ;) Walmsley v. Book, (2 Atkyns, 25 ;) Wood v. Domes, (18 Ves. 119 ;) 13 Ves. 136 ; Webb v. llourke, (2 Sch. & Lef. 661 ;) Ex- parte James, (8 Ves. 422 ;) Gibson v. Jayer, (6 Ves. 276 ;) Coles v. Trecothick, (9 Ves. 296 ;) Exparte Bennet, (10 Ves. 381 ;) Exparte Lacy, (6 Ves. 627 ;) Morse v. Royal, (12 Ves. 872;) Lowther v. Lowther, (12 Ves. 95 ;) Lazarus v. Bryson, (3 Binn. 54;) Moody v. Vandyke, (4 Binn. 43;) Say v. Barnes, (4 Serg. VOL i. 25 372 SUPREME COURT [March Term, (Delamater's Estate.) & R. 112;) Bixler v. Kunkle, (17 Serg. & R. 298 ;) Jeremy's Equity, 394; Shelford on Lunatics, &c. 318. I~S7S*1 *Mr. C. Ingersoll and Mr. Chauncey, for the appel- - lees : There is nothing in the circumstances of this transaction, call- ing upon the Court to interfere. Miss Delamater was 29 years old, a co-executor, conversant with the situation and amount of her father's property, and better acquainted than any one else, with his intentions as to the disposition of it. The evidence taken by the auditor, shows that no improper influence was exercised. She had full time for deliberation, since the paper was not signed until more than a month after her father's will was proved. The recital of the intestacy of Mr. D. in respect to the 43 shares, is certainly correct. To argue that bank stock will pass under a clause like that in the will, is to go further than any case has yet done. The words, "the remainder of my worldly sub- stance," are explained and controlled by what follows, viz. " con- sisting of furniture, bedding," &c. enumerating them; and the words, " claims and demands," obviously refer to debts due to him by individuals. Then if the transaction be such that it would be supported in an ordinary case, is there any thing in the rela- tive situation of the parties to invalidate it. There is no such rule as that a trustee cannot, under any circumstances, deal with the cestui que trust. It is true that contracts between them are looked upon with suspicion ; but if it be shown that the parties dealt as strangers, that no undue influence was exerted, and no important information withheld, there is no reason why such con- tracts should not stand. Morse v. Royal, (12 Ves. 272, 3 ;) Gibson v. Jayer, (6 Ves. 277 ;) Exparte Lacy, (6 Ves. 627 ;) 1 Cruise Dig. 538, 9, tit. 12, c. 4, 57 ; Campbell v. Walker, (5 Ves. 673, 13 Ves. 60 ;) Harris v. Tremenheere, 13 Ves. 136.) At all events contracts between trustee and cestui que trust are not void, but voidable at the election of the latter, who will be taken to have confirmed the transaction, if he suffer any consid- erable time to elapse. Shotwell v. Murray, (1 Johns. C. R. 516 ;) Prevost v. Gratz, (1 Peters' C. C. 11. 364 ;) Bruch v. Lantz, (2 Rawle, 416, 418 ;) Lister v. Lister, (6 Ves. 231.) Here there was an acquiescence of 10 months and more. But in truth the parties did not at any time stand towards each other in the position of trustee and cestui que trust. Miss D. was sui juris, under no restraints, and possessed equal knowledge and power with Mr. Dunton. She might have taken letters testamen- tary at any time, and have prevented the transfer of the stock. In this case, there are none of the features which have induced the Courts to set aside conveyances or gifts. The legatee here, never was in the power or under the influence of the executor. Mr. 1836.] OF PENNSYLVANIA. 373 (Delamater's Estate.) Pike, the co-executor, joined in the transfer, and was competent and willing to protect her interests if they required it. Besides this was the case of an agreement between members of the same family for the quieting of controversies. And in such cases, Lord Elden said, in Stockley v. Stockley, (1 Ves. & Beames, 30,) " the Court administers an equity which is not applied to agree- ments *generally." Stapylton v. Stapylton, (1 Atkyns, 2 ;) Gary v. Cary, (1 Ves. 19.) The opinion of the Court was delivered by GIBSON, C. J. We are called upon, not to withhold our assist- ance from the execution of an agreement, but to cancel a contract executed ; and it is to be noticed that there is a material differ- ence between circumstances which require a chancellor to forbear, and those which require him to act. On a question of specific performance he may choose to be silent ; and his action, being of grace and nc^, of right, is to be directed by a sound though legal discretion. But circumstances proper for recision, involving, as they do, the control of a legal right, are necessarily of a more positive and definite cast. The consequence of the distinction is that though equity will refuse to interfere for purposes of exe- cution wherever it would revoke, it may refuse to revoke where it would decline to execute. A chancellor lends not assistance to an unconscionable bargain, accompanied with circumstances of suspicion though not positively unfair, as in Campbell v. Spencer, (2 Binney, 129 ;) but hardship or suspicion of unfairness is cer- tainly not ground of recision. Had the title been conveyed, in the case quoted, no interference of the jury or the court would have prevented a recovery. These are elementary principles about which there is no dispute. Now the grounds on which equity interferes for recision, are distinctly marked, and every case proper for this branch of its jurisdiction, is reducible to a particular head. They are principally fraud, mistake, turpitude of consideration, and circumstances entitling to relief on the principle of quia timet. The case at bar, cannot, consistently with its nature, be brought under either of the two last; and as there is small allegation of mistake, and still less proof of it, the contract can be successfully assailed, if at all, but for fraud proved or inferrible from want of consideration and the relation in which the parties stood.* I have searched the proofs, without success, for anything like a suggestion of falsehood or suppression of truth. Miss Delama- ter had long attained the age of discretion, was conscious that the title was vested in her, and was aware that she could not be divested of it without her consent. In executing the act of trans- *See 6 Casey, 97, 110. 374 SUPREME COURT [March TVrm, (Dolama tor's Estate.) for, she thought she was but carrying out the plan of her father ; and there is nothing to show that her belief, whether well or ill founded, was generated by the arguments or suggestions of the donees : neither was she moved towards the consummation of her purpose by threats or intimidation. Mrs. Dunton had declared that she would not again enter the house if her expectations were disappointed ; but, surely such a declaration is not an engine of duress, proper for the consideration of a chancellor. It is cer- tainly not a proof of legal duress ; and it has been determined in r*o^--i Stouffer v. Latuhaw, (2 Watts, lt>5,) that there is *no such thing as equitable duress. The only inducement to the act not made good to the letter, is Mrs. Dunton's promise to have the matter amicably arranged, if found not to be right. Mr. Pike supposes this to have been an engagement to restore, and Ann Kremer, the other witness, speaks of it very indistinctly. It seems to have meant no more than the parties were expected to deal with each other on honor ; and that is certainly not a cause for relief. In dealing with a person of weak intellect, such a promise might be a circumstantial proof of imposition ; but Miss Delamater, is not alleged to have been such. We discern nothing in her conduct evincive of it. She appears to have acted on a settled conviction that her father's partial intestacy was the effect of accident, and that she was required by duty to repair it. If her belief in this particular were correct, and it has not been shown that it was not, the moral obligation cast upon her by the discovery of her fathers intent, would be a consideration to "Support even an executory agreement. But to a contract executed and requiring not the interposition of a chancellor, a consideration is unnecessary. A gift cannot be retracted ; and even a voluntary specialty may be enforced at law without hind- rance from equity, which does not recognize the want of an ac- tual consideration as a ground of injunction. But, without even the pretence of a consideration, the executed transfer was an irrevocable gift of the stock, though the donor may have been mistaken in the existence of some fact which was the collateral in- ducement to the act. Did the parties stand in a relation to forbid the transaction ? The residuary bequest of " furniture, bedding, carpets, china, kitchen furniture, looking-glasses, crockery, &c.," certainly did not carry the stock ; nor was it embraced by the supplementary description of " money in bank," or " all claims and demands of whatever nature." These, as justly remarked by the auditor, are not such as, in the ordinary sense of the words, denote bank stock. The subject of the contest, then, did not pass by the will, and the parties stood, as regards it, in no fiduciary rela- tion whatever. What then was there to prevent them from deal- ing for it on a footing of ordinary equality ? A trustee has been 1836.] OF PENNSYLVANIA. 375 (Delamater'g Estate.) suffered to acquire even the trust fund, the ceatui que trust acting with full knowledge of the circumstances and having the manage- ment of the sale. The rule was perhaps never carried so far as to prevent the parties from dealing with each other in the attitude of strangers, and at arms length ; and it seems to be mitigated by recent decisions. In the English chancery it seems to be no more than this. Where the parties stood in a very confidential relation, such as guardian and ward, attorney and client, or cestui que truffi and trustee, the party seeking to set aside the deed shall not be called on to show direct fraud ; yet the burthen of proving that advantage was taken of the confidence incident to the relation will nevertheless rest on him, subject, however, to rebuttal by proof from the other *side,that the dealing was, in fact, r*q7-| guarded as between strangers, and without advantage *- taken of influence or superior knowledge. The subject is, to say the least, eloquently discussed in Hunter v. Atkins, (1 Cooper's Rep. of Ld. Brougham's Decisions, 464,) to which those who choose to pursue it further, are referred. But it is proper to remark that the relation of trustee, including that of guardian and executor, is the one in respect to which the Court is the least vigi- lant, being most especially awake to the transactions of an attor- ney with his client. Now in reference to the transaction here, the relation could not be put off, for it never existed ; nor did the parties treat under an impression that the stock was involved in it. Miss Delamater knew that it was not peculiarly in the control of Mr. Dunton and his wife, arid that, as to ownership and every- thing besides, she was on a footing with them. She was in her thirtieth year, and she seems to have been every way competent to deal with them in this or any other transaction. But what was her relation to them even in respect to the trusts in the will ? She was joined with them in the execution of it; and though she had not acted, yet being officially and intellectually competent, she was their equal and at liberty to assume the active duties of the office when she might please to do so. She was exactly informed of her position; no circumvention was practiced on her, and though she was strongly perhaps indelicately pressed by con- siderations that might operate on the sensibilities of a sister, these are referrible to the relation of blood and not of office. Even as a relative she was put on her guard by her kinsman, Mr. Pike ; and the act of transfer thus performed under a sense of moral obligation possibly a mistaken one by a person not disqualified by imposition or any particular relation,. is conclusive. Report and decree affirmed. Cited by Counsel, 2 Wharton, 62 ; 5 Id. 582 : 6 Barr. 105 ; 3 Casey, 56 ; 6 Id. 93 ; 4 P. F. Smith, 389 ; 5 Id. 481. Cited by the Court, 1 Harris, 282 ; 4 Wright, 479 ; 2 Grant, 160. 377 SUPREME COURT [March Term, [*377] (/PHILADELPHIA, APRIL 4, 1836.] BURCHARD against REES. 1. Where an assignment of goods was made for the benefit of creditors, and the assignee advertised the property for public sale at a certain time, at which time there was no rent due, and before that time the landlord distrained, and prevented a sale, and then the sheriff seized under an ir- regular execution, and sold, and out of the proceeds paid the rent accru- ing to the landlord ; it was held, in an action of trespass brought against him by the assignee, that he was not entitled to any deduction for the rent so paid to the landlord. 2. Whether a levy upon goods in a shop in the lower part of a house amounts to a levy upon the furniture in the upper part of the same house. AN action of trespass was brought in this Court by Jabez Bur- chard, assignee of' Henry H. Porter, against George Rees, sheriff of the city and county of Philadelphia, James G. Clark, John llemphill and Mark Richards, to recover damages for taking the goods of the plaintiff. The case was tried on the 10th of February, 1836, at a Court of Nisi Prius held at Philadelphia, by Kennedy, J. and a verdict rendered for the plaintiff for the sum of $82b' ; and now upon a rule which had been obtained to show cause why a new trial should not be granted, the facts appeared to be as follows : On the 25th of February, 1832, James G. Clark obtained a judgment by confession against Henry H. Porter for $1017, in the Supreme Court. On the 7th of March, 1832, a writ of fieri facias issued upon this judgment, returnable on the 31st of the same month, being the last return day of the March term, which was lodged in the sheriff's office on the day it issued. On the 14th of March, 1832, Henry H. Porter, the defendant in the judgment, executed an assignment of all his estate and effects to Sheldon Potter in trust for the benefit of his creditors. The assignment was duly recorded, and an inventory of the effects assigned was made by the assignee, and filed according to law. Porter, the assignor, carried on business as a bookseller and pub- lisher on the ground floor of the building, and had furnished rooms in the upper part of the same house. On the 16th of March, a sheriff's officer, iiamed Heston, went with the fieri facias to the shop of Porter, where as it was testi- fied by a witness who had been in the employment of Porter, he exhibited the writ ; and being told that an assignment had been made, he went away ; and returned on the same or the next day, when he was informed that an inventory had been made by the assignee, and that it was not necessary to take another. He then r*q-ro-i went away, saying, *he would submit the case to the attorney for the plaintiff. He did not say, while there, 1836.] OF PENNSYLVANIA. 378 (Burchard v. Rees. ) that he made any seizure of the property, nor did he leave any person in charge, nor did he go into any other part of the house than the shop. No further proceedings appear to have been had on this execu- tion until the 7th of April, when the goods in the house, including the hooks and household furniture, were removed by the sheriff ; and a few days afterwards they were sold. The proceeds of the goods in the shop were $165 75, and of the other articles sold, $506 60 ; in all $672 35. Of this sum the sheriff on the 10th of May, paid to the land- lord of Porter $293 34, being the amount of rent due to him to the 18th of April, and as it appeared, the amount of one quarter's rent, deducting two days ; the quarter not expiring until the 21st of April. The attorney of the plaintiff, in the execution, (Clark) signed an agreement authorizing the payment to the landlord, so far as the plaintiff was concerned. The landlord in his receipt engaged to exonerate the sheriff from liability by reason of the payment to him. The balance of the money in the sheriff's hands was paid to the plaintiff in the execution. The writ of fieri facias, under which the sale took place, was not produced at the trial, but it was agreed that the only endorse- ment on it was the following in pencil marks made by the sheriff's officer, Heston, "March 16th, 1832. Levied on all the goods and chattels of the defendant at his bookstore, consisting of an assortment of books, fixtures, &c." Judge Kennedy charged the jury in substance as follows : "The fi.fa. being in the hands of the sheriff and in full force at the time Porter assigned the goods to Potter, was a lien upon them, and the sheriff had, therefore, clearly a right to seize and take them in the hands of Potter, the assignee, at any time there- after before the expiration of the return day of the writ. But, if he omitted or neglected to make a seizure until after that, he could not do it then. The lien, created by issuing and placing the fi. fa. in his hand, expired with its return, as well as all au- thority thereby given to him to take the goods. If, however, he made a seizure upon any part of the goods before the return of the fi. fa. he might well complete the execution of it, thus begun, by making a sale of the goods so seized after the return thereof. It is alleged and argued by the defendant's counsel, that there was a seizure of part of the goods in the name of the whole, be- fore the return of the writ. If the sheriff or his deputy had made such seizure, when all the goods were within his power, it would have been good, if followed up with reasonable diligence. But what evidence have you of such a seizure ? The *writ of fi.fa. itself is mislaid or lost, and has not been pro- 379 SUPREME COURT [March Term, (Burchard t>. Rees.) duccd, but evidence has been given, that after the return of it, an indorsement in pencil mark was seen on it, in the following words, to wit, "March 16th, 1882, levied on all the goods and chattels of the defendant at his book store, consisting of an assort- ment of books, fixtures, &c. Sheldon Potter, assignee." When this indorsement was made, does not appear, whether on the 16th of March, 1832, or not. It appears from the deposition of Wendell, that the deputy sheriff was at the store on that day or the day preceding, and saw that portion of the goods which were in the Btore, but it does not appear that he was in any other part of the house, or saw any of the other goods at any time. If, however, he made the indorsement of seizure at the time he was at tlve Btore, and pursued it afterwards with reasonable diligence, it would be a good seizure of the goods in the store, but not of the other goods. It does not purport to be a seizure of any other goods than those in the book store, and must be confined to that. But if a seizure were made according to the purport of this in- dorsement, on the 16th of March, 1832, is it not reasonable to suppose, that the sheriff or his deputy would have attended to it within a short time afterwards ? He was informed that the goods had been assigned for the benefit of the creditors of Porter, and of course had reason to conclude that the assignee would dispose of them, if not taken from him, as soon as he could. The assignee accordingly did advertise the goods for sale on the 31st of March, and was then about to sell them, when Mr. Davis the landlord of the assignor, distrained upon them for rent. During this time no notice, that we hear of, was given to the assignee, by the sheriff or his deputy, of a levy upon the goods or any portion of them. Nor does it appear that any allegation to this effect was made by the sheriff or his deputy until about the 7th of April ; when it was claimed that the goods were levied on. This delay and silence on the part of the sheriff, under the circumstances of this case, is, perhaps, sufficient to excite a suspicion, that no part of the goods were levied on until after the return of the writ of fi.fa. However, of this as a fact, I leave you to judge from the whole of the evidence. But beyond the goods in the store there is not even the color of evidence to show, that there was a levy. In regard to damages, the plaintiff only claims the amount for which the goods sold at sheriff's sale witli interest thereon. So far as he is entitled to recover, there is nothing unreasonable in this ; less ought not to be given. If, however, you should be of opinion, that the goods in the store were levied on, their price ought to be deducted, and your verdict be given for the price of the residue of the goods, with interest thereon from the time of sale to the present time. The defendant cannot have an allowance made for the moneys paid to Mr. Davis, the landlord ; because as against the 1836.] OF PENNSYLVANIA. 379 (Burchard v. Rces.) goods in the hands of Mr. Potter, the assignee, he had no claim whatever for rent. There was no rent in arrear and due to him. It was only against *the sheriff, in case he had made a r*Qon-i seizure of the goods, while the fi. fa. was in force, and sold them afterwards, that he could have any claim for rent. This would also seem to have been the understanding of the par- ties ; for the receipt of the landlord to. the sheriff for the money, contains an engagement to refund it in case of a recovery against the sheriff." Mr. Brasliears, in support of the rule to show cause why a new trial should not be granted, contended, that the evidence showed that a levy was made on the 16th of March, and enough done ac- cording to the practice, to establish the lien of the sheriff; and that if the sheriff's officer was prevented from proceeding further by the misrepresentation of the plaintiff's agent, the plaintiff could not take advantage of the defect. If the levy was good, the payment to the landlord was right, since by the decisions the rent is to be apportioned to the time of sale. Mr. W. M. Meredith, contra. The only question in this case was one of fact, viz. whether there was an actual levy, which was decided by the jury in the negative. The evidence of Wendell was conclusive upon this point. The indorsement on the writ by the sheriff's officer was not made at the time he went to the store, and there was no reason to believe, it was made before the 7th of April. Then there was no levy until after the return day, which certainly is too late. The defendant was not entitled to any de- duction for the rent paid to the landlord, since the quarter's rent not being due until the 21st of April, he had no lien upon the goods at the time of the supposed levy. PER CLRIAM. Whether there was a levy at all, was a question properly left to the jury : and the fact, being found for the plain- tiff, dispenses with the necessity of determining whether a levy of the effects in the room would have included effects in other parts of the building. If the dir ction was wrong in respect to that, it was without actual prejudice, and is not an assignable error.* The finding disposes also of the lien of the execution. It is plain that the defendant was not entitled to an allowance for the payment to the landlord. But for the distress, followed immediately by the sheriff's seizure before rent had become due, the assignee might have removed the goods without let or hin- drance from any one the object not being to elude the growing *See 3 Barr, 40, 156 ; 1 Casey, 119 ; 6 Id. 87 ; 7 Id. 324 ; 1 Wright, 154 ; 5 Id. 111. 380 SUPREME COURT [March Term, (Mason v. Connell.) rent ; and that they were detained on the premises till rent was incurred by an unlawful distress, and the sheriff's seizure after the return day of the writ, could not justify the sheriff in paying, or the landlord in receiving. This point also was properly dis- posed of. Rule discharged and judgment on the verdict. Cited by Counsel, 1 Harris, 427. [*381] [*PHILADELPHIA, APRILS, 1836.] MASON and Another against CONNELL and Others. 1. The liability of a dormant partner to creditors may be avoided by proof of fraud in the formation of the partnership, if no part of the funds have been received by such dormant partner. 2. It seems that a partnership formed by articles for a definite period, may be dissolved by either partner before the termination of the period. 3. One partner cannot, without the consent of the other, introduce a stranger into the firm, nor can he, without such consent, make the other partner a member of another firm ; but such consent may be implied from the acquiescence and acts of the parties ; and if such other partner is made acquainted with the facts, he ought to dissent from the arrange- ment ; otherwise he will'be bound by it. Tins was an action of assumpsit brought by Matthew S. Mason and Ignatius M'Donough against John Connell, Francis Worley and Thomas Welsh, to recover the price of certain goods sold and delivered by the plaintiff to John Connell. A return of N. E. I. was made as to Connell ; and the action proceeding against the other defendants was tried before Mr. Justice Rogers at a Court of Nisi Prius, held at Philadelphia, on the 25th of November, 1831. It appeared in evidence on the trial, that Francis Worley and Thomas Welsh had for some time previous to the 1st of Septem- ber, 1828, been engaged in business under the firm of Worley and Welsh ; the former residing in the city of Philadelphia, and the latter in the city of Baltimore, and that John Connell, the other defendant, was engaged in similar business in the city of Pittsburgh. On the 1st of September, 1828, the following agreement was entered into : " Articles of agreement and co-partnership entered into and agreed upon by John Connell, residing in the city of Pittsburgh, state of Pennsylvania, on the one part, and Francis Worley, merchant, residing in the city of Philadelphia, and Thomas Welsh, 1836.] OF PENNSYLVANJA. 381 (Mason v. Connell. ) merchant, residing in the city of Baltimore, on the other parf> witnesseth, that the above named John Connell, of the city of Pittsburgh, and the above named firm of Worley & Welsh of Philadelphia, have this day formed and entered into a copartner- ship to carry on, and conduct the mercantile business under the name of John Connell in the city of Pittsburgh and state of Pennsylvania, on the following terms. The said John Connell does agree and hereby bind himself, his heirs, executors, admin- istrators and assigns, to place in the said concern as above named, the amount and full value of $12379 44 of *goods or merchandise agreeable to the annexed statement, the same to be taken and held by the above named parties at the specific value of $9,000 as a capital stock in trade ; and the above named firm of Worley & Welsh agree and bind themselves, their heirs, executors, and administrators to place in the above named copartnership or let remain in the hands of the concern in Pitts- burgh, carried on under the name of John Connell, the amount of $2000 out of the bill of goods or merchandise bought in the name of John Connell from the firm of Worley & Welsh, under date of the 26th August, 1828, and they further agree and bind themselves to place in the above concern, or let remain out of the goods bought subsequently to the date hereof, for the concern of John Connell, the further sum of $3000 ; the said $3000, it is however agreed upon, is not to be placed hi said concern of John Connell before the first day of July, 1829, unless it can be made convenient to the firm of Worley & Welsh; and it is further agreed upon by the parties hereto named, that on and after the 1st of March, 1829, the business of the concern shall allow John Connell an interest of 6 per cent, per annum on $7000, and after the said Worley & Welsh shall have placed the additional sum of $3000 in the business, which will then make a capital stock of $5000 placed in the concern by them, then the concern shall allow to John Connell an interest of 6 per cent, per annum on $4000. It is further understood and agreed upon by the parties herein named, that after paying the expenses necessary or un- avoidable accruing in the business, then there shall be an equal division of the profits that may or shall be made in the business, that is to say, one half to John Connell, and one half to Worley & Welsh ; and it is further agreed by the said parties herein named that the copartnership shall continue to exist for the term of 3 years from the date hereof, unless sooner dissolved by mutual consent of the partners. In witness we have hereto subscribed our names, the 1st Sept. 1828. JOHN CONNELL, WORLEY & WELSH." 382 SUPREME COURT (Mason v. Connell.) The name of the firm subscribed to this agreement, was in the handwriting of Worley. The statement referred to in the agreement, and annexed to it was as follows : " Memorandum of John Connell's situation in business, according to his representation of it, on the 1st of April, 1828, including sales made out of his stock to the 1st of April, 1828. Amount of stock belonging to Anderson & Co. ( QAJ.J. nn taken by John Connell, April 1st, 1828. Amount of goods in Philadelphia bought by John ) QU r Q ftl Connell, in Philadelphia, in May, 1828. r*QQi *Amount of stock belonging to Anderson ) Q-.OA q ^ J & Co. in the retail store taken by John Con- \ nell, 1 April, 1828. ) 28133' 40 Deduct for sales made from 1 April to Aug. 1, 1828, 11453 96 16679 44 Deduct for amount of goods sent to Cincinnati, 1700 Deduct goods in hands of auctioneer, 2600 4300 00 Balance on hand, 1st Aug. 1828, $12379 44 The foregoing schedule exhibits the amount of goods in the hands of and belonging to John Connell, merchant, of Pittsburgh, state of Pennsylvania, on the 1st day of August, 1828, which goods or the amount thereof, he agrees to hold subject to a co- partnership now about to be formed between him and F. Worley, merchant, residing in Philadelphia, and T. Welsh, merchant, re- siding in Baltimore, and trading under the name and firm of Worley & Welsh in the city of Philadelphia, and further the said John Connell agrees to place in the said copartnership now about to be formed, the above amount $12379 44 at the rate or value of $9000, and to be received and taken by the above named parties at the specific value of $9000. In witness whereof we have subscribed our names the 1st Sept. 1828. JOHN CONNELL, WORLEY & WELSH." Between the 1st of April, 1829, and the 18th of May in the same year, the plaintiffs sold to Council, at Pittsburgh, certain goods amounting together in price to $583 55. On or about the 1st of June, 1829, the following instrument was executed, which was indorsed on the original articles of co- partnership. 1836.] OF PENNSYLVANIA. 383 (Mason v. Connell.) "June 1st, 1829. We, the subscribers, parties to the within agreement, do hereby mutually agree to revoke, annul and make void said instrument of writing from the date of the same, for reason of inability to fulfil the stipulations as named therein by the parties of the first part; and the parties of the second part, having never received any part or portion of profits therefrom and hereby agreeing to relinquish all claim to the same, it is agreed this instrument shall be null and void from its date as though it had never existed : and it is hereby further acknowl- edged and declared by us, that there never has been any contracts or liabilities incurred by virtue of it or from a knowledge of its existence. In witness of the same, we have hereunto subscribed our names and firm. JOHN CONNELL, WORLEY & WELSH." *0n the 21st of July, 1829, John Connell, being r* 004-1 largely indebted, executed an assignment of all his L estate and effects to Francis Worley and such others, his credit- ors, as should execute a release within a certain specified time : Worley & Welsh were preferred creditors in this instrument, and as such, received from the assets $11,323 22, the Avhole amount of their claim. A release dated the 4th of August, 1829, was executed by several creditors, but not by the plaintiff in this case. It was proved by a clerk in the employ of Worley & Welsh, that there was no book kept by them in the name of "John Con- nell," and he testified that he never knew a debt contracted in that name by Worley & Welsh, or any debt which had been con- tracted by John Connell, paid by them, and never knew of any purchase made, or act done, that indicated the existence of a part- nership between Connell and Worley & Welsh. After the assign- ment he was sent to Pittsburgh to attend to the business arising under it, where he obtained possession of the books of Connell, and from them made out a statement of Connell's debts and assets, by which it appeared, that there was a deficiency of $25407 09, which according to the representations made to him by Connell, arose between the 1st of September, 1828, and the time of the assignment in July 1829. On his cross-examination, the witness stated that Worley was not a partner in the conceni at Baltimore ; Welsh was engaged in a different line of business. There was no evidence on the books of Connell showing how the deficiency arose. The books were balanced to the 1st of September, 1828, when the balance in favor of Worley Welsh was $4i04 29. On the 1st of January, 1829, the balance in favor of Worley & Welsh on their books was $13285 32. 384 SUPREME COURT [March Term, (Mason t>. Connell.) Judge Rogers charged the jury in substance as follows: "This suit is founded on an alleged partnership between Francis Worley, Thomas Welsh and John Connell, and a sale of goods to them during the existence of the partnership. To entitle the plaintiffs to recover, it is necessary for them to show the existence of the debt ; that there was a partnership ; and that the goods were furnished during the existence of the partnership. This the plaintiffs have done, 1st, by proof, that the goods were sold to John Connell at several times, viz. the 23d April, the 2d and 18th May, 1829. 2. By the articles of copartner- ship of the 1st September, 1829: and this is what lawyers term Ifrima facie case, or in other words, in the absence of all proof on the part of the defendants, it is such evidence as will entitle the plaintiffs to gain a verdict. All that is necessary for a stranger to do, is to show the articles themselves. That is such a proof of partnership as throws the burthen of proof on the other side. It is incumbent on them to show, that no act has been done in pursuance of the articles, or that the partnership has been dis- solved. I do not mean here to touch upon a point in the cause, r*Qcc-i *which will be noticed hereafter. The agreement is lim- J ited in point of time to three years, from the 1st of September, 1828. The goods were furnished between the 1st Sep- tember, 1828, and the 18th May, 1829. And the presumption is, that the articles of copartnership were not a dead letter ; but the inference is$ that they were acted on by the parties according to their stipulations. So, also, the presumption is, that the goods went to the use of the firm and not to the separate use of Con- nell. In default, then, of any proof to the contrary, always sup- posing that Worley signed the articles with the consent of Welsh, such evidence has been produced as would make it your duty to find a verdict in favor of the plaintiffs. And this brings me to the defence. If I understand the defendants' counsel, it may be considered under two heads: 1. They allege fraud practiced by John Connell on Worley & Welsh, which, as they say, avoids the contract ; and that this being the case of a dormant partner- ship, the plaintiffs are not entitled to recover: that the parties never acted on these articles, that this was not an actual, but a contemplated partnership ; and that, even if a partnership once existed, there was a virtual dissolution of it before the debt was contracted. Partnership is a contract of two or more persons to place their money, effects, labor, and skill, or some, or all of them, in lawful commerce or business, and to divide the profits, and to bear the loss, in certain proportions. It is not the actual reception of profits, that constitutes a partnership, but a capa- bility of receiving them, if made. A contract of partnership may be made, either by deed, which you know is an instrument under 1836.] OF PENNSYLVANIA. 385 (Mason 0. Coimell.) seal, or by an agreement, not under seal, as was done here. There are, you well know, several kinds of partners. An osten- sible, actual or known partner, a dormant or sleeping partner, and a nominal partner. This is the case of a dormant partner ; for it has been held, that where two persons were concerned to- gether as partners, but the business was done in the name of one, and it was not generally known that they were partners, the other was a dormant partner, (5 Cowen, 534.) It seems to have been the intention of all parties, that Worley & Welsh should be dormant partners. The business was to be carried on in the name of John Connell, nor was it known that any partnership existed. The plaintiffs certainly had no knowledge of any other person than John Connell at the time of the sales. This then, being the case of dormant partners, the defendants contend, that John Connell, on the 1st September, 1828, committed a fraud on Worley & Welsh, and that the contract of copartnership was void, and being void, a dormant partner is not liable to suit. This brings into view a principle which is new. At least I recollect no decided case, and none has been produced. I take this to be the law. Fraud avoids all contracts, and if you should be of the opin- ion, that there was a fraud in the concoction or original formation of the partnership, this contract of copartnership was void ; and if the *contract was wholly void, the defendants being dor- mant, and not ostensible partners, are not in general lia- ble. The distinction is this. Whatever fraud or imposition there may be between the parties where they are known partners, can- not affect third persons, who are presumed to contract on the faith, and with a knowledge of the partnership. But that is not the case of a dormant partner. There third persons do not credit the firm, but the individual with whom they deal. They then receive no injury. The reason why a person becomes, by im- plication and operation of law, clothed with the character of a partner, and as such, liable to third persons, is, that by the effect of the agreement for a participation, the party participant takes from the creditors a part of that fund, which is the proper security to them for the satisfaction of ,their debts, and upon which they rely for payment. Another reason assigned for subjecting a dor- mant partner to responsibility is, that if he were exempted, he would receive usurious interest for his capital without its being attended with any risk. The rule, then, must be taken with this qualification, that if the dormant partner has actually received part of the profits, or any part of the capital, then he is liable to third persons, although there may have been fraud in the contract of partnership. He is liable, because he actually takes from the creditors a part of that fund, which is the proper security to them for satisfaction of the debts, and on which they rely for payment. 386 SUPREME COURT [March Term, (Mason t). Connell.) But where there is such a fraud as to avoid the contract of co- partnership between the parties, and where no part of the funds have been received by the dormant partner, in such a case, it is the opinion of the Court, that dormant partners are not liable to creditors, who give credit, not on the faith of the partnership, but of that of the individual with whom they contract. Third persons would be in no better situations than the fraudulent partner, who clearly would have no right of action against the innocent partner. If such should be your opinion of the facts, your verdict should be in favor of the defendants. And this leads to the inquiry, what facts have been proved ; and this will be your duty, under some few directions which I shall give you, as to the manner in which this cause should be viewed. You will recollect that I told you, that the plaintifis, by proof of the debt, and by the produc- tion of the articles of partnership, had exhibited a prima fane case ; that they had shown a cause of action. This, then, shifts the proof from the plaintiffs to the defendants. As the defence consists in an allegation of fraud, it is necessary for them to prove it. The burthen of proof is thrown upon them. And here "let me observe to you, that fraud is not to be presumed ; as in the case of the imputation of every other criminal action, every man is presumed to be innocent until the contrary is made to appear. It is incumbent on the defendants to satisfy you of the fact of fraud, either by positive testimony or the proof of sucli circumstances as usually attend fraud. It is not left r*3871 * * con j ec t ure 5 but such evidence must be given as to ' J satisfy you, that there has been a fraud or imposition practiced upon the defendants by Connell, of such a nature as to avoid the contract. It is not by arguments, but by facts, that this must be made to appear. The circumstance on which the defendants mainly rely on this part of their case is, the great deficit, upwards of &28,GOO which appears in the account of John Connell, from the 1st September, 1828, until his assign- ment in July, 1829. from this the defendants wish you to infer, that at the time the partnership was made, viz. on the 1st September, 1828, Connell must have been largely indebted, and that that fact was not communicated by Connell to the defend- ants. .AJl the evidence, we have, is derived from the articles of copartnership itself. We know not what took place at their ex- ecution, for the witnesses, if any were present, have not been produced. (His Honor here read the statements contained in the articles, and asked) What proof have you that these repre- sentations were not true to the letter ? If Connell was largely indebted at the time, and Worley & Welsh did not choose to inquire into his circumstances, this is as much a proof of folly on their part as fraud on his. They cannot now say, there was 1886.] OF PENNSYLVANIA. 387 (Mason v. Gonnell.) fraud on the part of Connell, that the contract is void, and they are not liable as partners. The nonfulfilment of the stipulations in the partnership alone would not be such a fraud as to avoid the contract, so as to free a dormant partner from a debt, con- tracted by the partners. To have this effect, it must be such a fraud, as to avoid the whole contract, to make it void from the beginning. In addition to this the plaintiffs' counsel have en- deavored to show the manner in which these losses occurred. Whether his explanation has been satisfactory, is for you to say. It will be for you specially, to remember that the whole burthen of proof is thrown upon the defendants. But the defendants say, that although they executed the article of the 1st Septem- ber, yet, that nothing further was done in pursuance of it ; that in effect, as soon as the partnership was formed it was dissolved, or that at any rate it was dissolved before the 23d of April, 1829. If this be true they are not liable. If they merely exe- cuted the articles without more, then the plaintiffs have no right of action ; that is to say, if John Connell continued to carry on business on his own account, after the copartnership, and this clearly appears, the defendants cannot be charged in this suit. In such a case the partnership has not commenced, or, if com- menced, it is dissolved by the act or mutual consent of both parties. When a partnership is commenced by articles unsealed, as is the case here, it is nevertheless, in legal effect, a partner- ship formed by parol, and consequently may be dissolved by parol. And here again, it is necessary to advert to the distinc- tion between an ostensible and a dormant partner. In the case of a dormant partner whose name has never been announced, *he may withdraw from the concern without making r*qoo-i the dissolution of the partnership publicly known ; for L his liability depends upon the mere fact of partnership and no credit has been given to him personally as a supposed member of the firm. Not so in the case of an ostensible partner, who, on his retirement from a partnership to protect himself from liability, must give notice of the dissolution of the partnership. I incline to the opinion that, although these parties formed a partnership by articles for a definite period, it may be dissolved by either, before the period arrives. I am aware that *the doc- trine of the English Courts is different, and that a contrary principle has been recognized by Lord Eldon in Peacock v. Pea- cock, (16 Ves. 56,) and in Crowshey v. Maule, (1 Swan. 495,) yet I hold that the American decisions are founded in the better reason, and are more calculated to advance our commercial in- terests. There is no such thing as an indissoluble partnership. It is revocable in its own nature, and each party may, by giving due notice, dissolve the partnership as to all future capacity of VOL. i. 26 388 SUPREME COURT [March Term, (Mason . Connell.) the firm to bind him by contract ; and he has the same legal power, even though the parties had covenanted with each other, that the partnership should continue for such a period of time. The only consequence of such a revocation of the partnership power in the intermediate time, woujd be, that the partner would subject him- self to a claim of damages for a breach of the covenant. And this, with the fact that it would be contrary to their own interest to dissolve the connection without cause, will in most cases be an effectual security. It is for the public interest that no partner should be obliged to continue in a partnership against his will, in- asmuch as a community of goods in such a case engenders discord and litigation. These views are supported in Marquand v. The New York Manufacturing Company, (17 Johns. R. 525,) and in Skinner v. Dayton, (19 Johns. 588.) And this is also the doctrine of the civil law, which holds, that each partner has a power to dissolve the connection at any time, notwithstanding any agreement to the contrary, and that such a power results from the nature of the association. If then you should be of the opinion that nothing more was done than the mere execution of the articles of copartnership, or that the partnership was dissolved by mutual consent or by the will of one of the parties before this debt was contracted, then your verdict should be in favor of the defendants. I say before the debt was contracted ; for if the partnership was subsisting at the time of the indebtedness of the defendants, then there is nothing in the defence ; that is to say, if on the 23d of April, the 2d of May, and the 18th of May, 1829, the times the debt was contracted, the defendants were the partners of John Con- nell, the defendant fails in this part of his defence. The plaintiffs will have acquired a vested right, of which no subse- quent dissolution can deprive him. In your deliberations on this part of the case, you will recollect the observations I made to P^ooq-i *you in another part of this charge: they are strictly - applicable here. The plaintiff has shown a prima facie case. The burthen of proof is thrown upon the defendants. The presumption is, that John Connell was trading for the company under the name or firm of John Connell, as was agreed upon in the articles. It is for the defendants to prove that no act was done in pursuance of the partnership ; and if dissolved, he should give us something from which we might be able to ascertain, with some reasonable certainty, the manner of its dissolution, when and where, and how it was dissolved. This imposes no hardship on the defendant, when he seeks to avoid a liability arising from his own evils. If no act was done, but the articles were a mere dead letter, it has been asked, why were not the articles can- celled ? If dissolved, why have we not some proof of the fact 1836.] OF PENNSYLVANIA. 389 (Mason v. Connell. ) more than mere conjecture, derived from circumstances, which to say the least of them are equivocal ? It is, however, not for me to press this matter. You have heard the evidence, and the arguments of counsel and to you I commit this part of the cause. It is true as has heen contended by the defendants' counsel, that whatever may be the language of articles of copartnership, the dealings and transactions among the partners may be such, as to amount to distinct evidence, that some of the articles were waived by all the parties. But the evidence must be strong, and in the language of the books amounting to demonstration. So also, subsequent inconsistent transactions may show a total aban- donment of the articles of partnership. But so far from their being inconsistent, the plaintiff contends that all the acts and transactions of the parties are consistent with a continuing and subsisting partnership. For this he has referred to the books themselves, of which you will judge. Both sides have referred to the instrument of writing, 'dated the first of June, 1829 ; and which, whether it be called a renun- ciation, nullification, revocation, dissolution or declaration of the parties, I am sorry was admitted in evidence. If it is considered as a dissolution of partnership, except as between the parties themselves, it can only take effect from its date, and this cannot effect the plaintiffs' claim which arose prior to the first of June. It is not competent for the parties to manufacture facts such as those stated in this instrument. If they could and they were to be effectual, there would be an end of all recoveries, in cases such as the present. If the instrument be effectual for any pur- pose, it rather goes to show a dissolution of partnership of that date, which would be some evidence that up to the first of June there was a continuing and subsisting partnership between Wor- ley & Welsh and John Connell. After the first day of June, 1829, the situation of Worley & Welsh, may be entirely different from what it is prior to that time. In conclusion, I shall direct your attention to the only remain- ing point in the cause. The defendants contend that the articles of partnership were signed by Worley alone and not by Welsh. That *one partner cannot bind another in this way. That r*qqA-i this is a joint suit, and that as Welsh is not liable, neither L is Worley bound in this suit. This is said to be a technical ob- jection; it can hardly be called so, since, if this be the fact, then Welsh avoids the payment of $25,000 : the loss is thrown, and rightly too, on Worley and Connell. The law, as regards this objection may thus be stated. As one partner can in no instance, without the consent of his copartners, introduce a stranger into the concern as a partner ; neither can he without such consent make him a member of another firm. It 390 SUPREME COURT {March Term, (Mason v. Connell.) is true he may engage in a particular adventure ; but this is an attempt to form a general partnership without his consent. If two of the jury were partners, and one was sent to China to at- tend to the concerns of the firm, it would, I think, surprise you to find yourself engaged in a general partnership with an inhabi- tant of China. It is out of the ordinary commercial transactions, and therefore presumed to be without the scope of his authority. A contrary principle would indeed be a dangerous one to admit into the law of partnership. It does not come within the scope of his authority so to bind his copartner. But although consent is absolutely necessary to constitute a partnership, yet such con- sent may be testified either in express terms or assent may be tacit, and to be implied from the acts and conduct' of the parties. If then Worley signed the article of th'e 1st of September, 1828, and there is no previous or subsequent authority from Welsh, the defendants are not liable in this suit ; for as has been very cor- rectly observed, this is a joint suit, and he must recover against all or none. He must prove his contract as it is laid in his decla- ration. But if Welsh either knew of it before and authorized it, or he has subsequently assented to it, he is bound, as well as the other partner to the contract. And this will render it necessary for you to direct your attention to the facts which have been given you in evidence on this part of the case ; for as you find them so should your verdict be. If you believe that Worley signed the article with a previous or subsequent assent of Welsh, before the debt was contracted, your verdict should be in favor of the plaintiffs ; but, if you should be of opinion that it was signed without any previous or subsequent authority from Welsh, your verdict should be for the defendants. And here, it is but justice to remark that the burthen of proof is thrown upon the plaintiffs. It is not only necessary for them to prove the debt and the articles of copartnership, but inasmuch as the articles were signed by Worley alone, (and not so far as we know in the presence of Welsh,) it is equally necessary to satisfy you, that the act met the approbation of Welsh. It is not required that there should be direct and positive testimony of this ; if you can reasonably infer it from all the circumstances which has been proved, that is sufficient. For you will recollect I told you, that, r*3Q11 Chough consent is absolutely necessary to *constitute a J partnership, yet such consent may be testified either in express terms, or the assent may be tacit, and to be implied solely from the acts and conduct of the parties. If Welsh knew of it, he ought to have dissented from the arrangement ; otherwise, he is bound. It will not do for him to take the benefit of the business if it proves successful, and to avoid loss, if it should be an unfortunate concern. This case must be tested by the prin- ciples of common sense, and if from the circumstances you be- 1836.] OF PENNSYLVANIA. 391 (Mason v . Connell. ) lieve, that Mr. Welsh assented to the arrangement of Mr. Worley, he is equally bound to Worley himself." The jury having found for the defendants, a motion for a new trial was made on the following grounds : " 1st. Because there was evidence enough, in the cause, to show, that Thomas Welsh authorized or assented to the partnership, which was formed on the 1st of September, 1828, between John Connell, Francis Worley and Thomas Welsh. 2d. Because the verdict was against the charge of the Court." Mr. Brashears, and Mr. Sergeant argued, that upon the evi- dence the jury ought to have found for the plaintiffs. They cited 3 Stark, 1070, 1078. Mr. Randall and Mr. P. A. Browne, in support of the ver- dict. The law was laid down as favorably for the plaintiffs as they had any right to expect, and the jury having, by their ver- dict, disposed of the question of fraud, the only point upon which the law would avail them, there is no ground for the interference of the Court. In the course of their remarks, the counsel cited Mercein v. Andrews, (10 Wendell, 461.) [ROGERS, J. I can- not think that case is law. GIBSON, C. J. Certainly it goes too far.] The opinion of the Court was delivered by SERGEANT, J. After a review of this case on the present mo- tion for a new trial, we are of opinion, that the charge of the Judge, who tried the cause, was correct in matters of law, and that the only question, on which doubt could be entertained, was a question of fact, whether or not Welsh assented to the partner- ship. That question was left fairly to the jury, who have decided in favor of the defendants. And supposing the Court might have felt a difficulty in arriving at the same conclusion, that is not a sufficient reason for setting aside the verdict. The jury are the proper judges of facts ; and the Court will not, in that respect, interfere with their verdict, unless it be against the weight of evidence. Should the Court do so, they would virtually take from the jury their peculiar *province. In the present r*ono-i case the evidence presents no circumstance, by which L the assent of Welsh is so satisfactorily established, that a conclu- sion might not be drawn of its non-existence. That conclusion the jury have come to, and there it must rest. Motion for a new trial denied. Cited by Counsel, 5 Watts & Sergeant, 565 ; 1 Parsons, 521. Cited by the Court, post 396 ; 1 Harris, 71. See also, 8 Watts & Sergeant, 262. 392 SUPREME COURT [March Term, [PHILADELPHIA, APKIL 5, 1836.] CARTER against CONNELL and Others. 1. In an action against A. B. and C. as partners, to recover the price of goods sold to A., the others being dormant partners, the defendants gave in evidence a release executed by the plaintiff to A. of all demands, &c. It appears that A. had executed an assignment to B . of all his estate, for the payment of creditors, among whom B. and C. were preferred to a large amount, and that the release was executed in consequence of a stipulation hi the assignment : Held, that the concealment of the fact of the partnership at the time of the execution of the release, was a fraud upon the plaintiff, which avoided the release. 2. In an action against three persons as partners, two of whom only have been summoned, the partner as to whom a return of n. e. i. has been made, is not a competent witness for the other defendants, to disprove the allegation of a partnership having existed, although released by them. 3. A witness called to authenticate a paper, cannot be asked whether to the best of his impression, the paper is in the hand writing of the party. THIS was an action of assumpsit brought by Durden B. Car- ter against John Connell, Francis Worley, and Thomas Welsh, to recover the price of goods sold and delivered by the plaintiff to John Connell. The action was tried before the Chief Justice at a Court of Nisi Prius, held at Philadelphia on the 19th of November, 1835. The plaintiff having proved the sale and delivery of the goods, gave in evidence certain promissory notes, drawn by Connell for the same, each dated the 8th of June, 1829 One at 5 months for - - $172 63 " at 6 months for 172 00 " at 7 months for 172 00 " at 8 months for - - 172 00 $688 63 r*oqo-i *He then gave in evidence the articles of agreement or copartnership, stated in the case of Mason v. Connell, (ante, p. 381,) and the assignment by Connell to Worley, men- tioned in the same case. Besides these, the books of Worley & Welsh, and of Connell were given in evidence ; and certain letters between the defendants in the years 1827, 1828, and 1829 ; and certain draughts and acceptances, upon which the name of John Connell appeared with that of Thomas Welsh. The defendant then gave in evidence, the general release to Connell, which had been executed by the plaintiff in this case ; the account settled by Worley as assignee of Connell ; the re- 1836.] OF PENNSYLVANIA. 393 (Carter v. Connell.) ceipts of the several creditors for their dividends under the assign- ment ; and the agreement of revocation or annulment, endorsed on the articles of partnership, (ante, p. 383.) The counsel for the defendants then oifered in evidence the de- position of John Connell, to which the plaintiff's counsel objected, but the Chief Justice admitted it to be read ; reserving the ques- tion of the competency of the witness. The defendant's case being closed, the plaintiff gave evidence to show that at the date of the alleged revocation, (June 1st, 1829,) Connell was not in Philadelphia but in Baltimore, which place he left on the 3d of June. A paper alleged to be in the handwriting of Connell was pro- duced by the defendants ; and several witnesses were examined upon the question of the handwriting. Among others, a witness named See, testified as follows : " I know John Connell. I think I know his handwriting, but would not be willing to be qualified to it. I think I have seen him write. I have received promissory notes from him. If I were to see some of the notes, I could say if it was his handwriting." The following question was then pro- posed to the witness : "Are you able to say whether, to the best of your impression, this paper is in the handwriting of John Con- nell or not?" The defendants' counsel objected to the question, and the judge decided that it could not be put. The evidence on both sides being closed, the Chief Justice charged the jury in substance : that in point of law, a partner could not enlarge the partnership contract by taking in another partner, or taking his copartners into another firm. Assent might however be given subsequently ; and if the agreement in this case was carried into actual execution, the presumption was that Welsh knew of it ; and if he did know the fact, he was bound to disclaim the arrangement, or he would be bound by it. The presumption is .that a man executes his contracts. But it is not to be presumed for the * purpose of founding another r* 004-1 presumption, that Welsh knew of the arrangement being in force. How far the evidence supported the plaintiff's allega- tion as to the partnership arrangements having been carried into effect, was a question of fact for the jury. Supposing, however, that a partnership was established, the defendants say that they are not bound by it, if drawn into it by fraud and misapprehen- sion. The law is so ; but the jury will say what evidence there is of fraud. It was also contended on the part of the defendants, that whatever may have been the partnership arrangements, they were relinquished before the purchase from the plaintiff, and there- fore they are not liable. If such were the fact, it would certainly follow that they were not liable ; the defendants being dormant partners. The question of the effect of the release to Connell was reserved. 394 SUPREME COURT [March Term, (Carter t>. Connell.) The jury found for the defendants ; and a rule having been granted to show cause why there should not be a new trial ; Mr. Brashears and Mr. D. P. Brown, argued in support of the rule: 1. The deposition of Connell was improperly admitted. One partner cannot be a witness to discharge his copartners from lia- bility, by proving that in point of fact, there was no partnership. 3 Starkie, 1083, 4 ; Gow on Partnership, 262, note (1) to Am. ed.; Simons v. Smith, (1 Ry. & Moody, 29; 21 E. C. L. R. 374;) Miller v. M l ClenacJian, (1 Yeates, 144;) Gardner v. Olden, (2 Yeates, 185 ;) 1 Phillips, 59, 134;) M'Coy v. Light- ner, (2 Watts, 847 ;) Black v. Mason, (2 Penn. Rep. 138.) 2. The Court ought to have permitted the question to be put to the witness, of his impression respecting the handwriting of Con- nell. There is no substantial difference between impression and belief; and evidence of handwriting, except when the witness was actually present at the signature, is all matter of opinion. 2 Starkie, 372, 658; Rogers v. Shaler, (Anthon's N. P. C. 109;) 4 Esp. N. P. C. 37. 3. The release of Connell cannot be held to operate as a re- lease of his copartners, who were not known at the time to possess that character. The doctrine has never been carried so far as to discharge dormant partners. In Robinson v. Wilkinson, (3 Price, 538,) it was held, that the acceptance of a bill of one partner did not discharge a dormant partner; and Graham, B. said, " In general a release of one partner is a release of all ; but a party has always a right against a concealed partner of whom he has previously had no knowledge, as soon as he discovers him, unless that ignorance were his own fault, as if he had not used due diligence in finding him." In this case, the release ought not to be allowed to operate ; because it was a fraud upon the plaintiff to hold out Worley & Welsh as creditors, when in fact they were partners. *Mr. Randall, for the defendants : 1. Was Connell interested so as to render him inad- missible. The question relates to the time of his deposition, viz. August, 1834. I admit that if there was a partnership fund which might be increased or diminished by his evidence, he would not be admissible. But it was shown by the accounts of the assignee, that the assets fell far short of the debts. The testimony was offered after the release had been given in evidence, and after the plaintiff had produced the assignment, which was of itself a dis- solution of the partnership. Gow, 252 ; Crriswold v. Wadding- ton, (15 Johns. 82;) Marquand v. Man. Co. (17 Johns. 535;) 1836.] v OF PENNSYLVANIA. 395 ^ (Carter. Connell.) Murray v. Munford, (6 Co wen, 443.) There is a strong cur- rent of authorities in favor of the admission of copartners, co-obli- gors, and others in similar situations. Collyer on Pp. 462, 3 ; Roscoe on Evidence, 88 ; Gow on Pp. 216 ; Ward v. Hayton, (2 Esp. N. P. C. 552 ;) Green v. Deacon, (2 Starkie, N. P. C. 347 ;) Moody v. King, (2 Barn. & Ores. 558 ;) Affalo v. Fou- drinier, (6 Bing. 306 ;) Worrell v. Jones, (7 Bing. 395 ;) Bate v. Russell, (1 M. & M. 332 ;) Smith v. Allen, (18 Johns. 245 ;) Clark v. Carter, (3 Cowen, 84 ;) Grant v. Shurter, (1 Wendell, 148 ;) Willing v. Consequa, (1 Peters, C. C. R. 303 ;) D< Wolf v. Johnson, (10 Wheat. 367, 384 ;) Le Roy v. Johnson, (2 Peters, Rep. 194;) Robertson v. Mitt, (2 Harris & Gill, 98.) 2. The release of Connell necessarily operated as a discharge of the other partners, if they were such. The plaintiff relies upon an extremely sharp rule of law, to charge- Worley and Welsh upon contracts which they never made, and to which they were not privy ; and he cannot complain if another rule of the same branch of the law is applied to him. The doctrine is well estab- lished and extends through a variety of cases, that a release of one joint contractor is a release of all. Gow on Pp. 202 ; Cheet- ham v. Ward, (1 Bos. & Pull. 630 ;) Consequa v. Willing, (1 Peters, C. C. R. 306 ;) Ward v. Johnson, (13 Mass. Rep. 148 ;) Robertson v. Smith, (18 Johns. 459 ;) Smith v. Black, (9 Serg. & R. 142) ; Coe v. Hutton, (1 Serg. & R. 398 ;) Milliken v. Brown, (1 Rawle, 391.) These cases show that the law with re- spect to ostensible partners is clearly settled ; and the principle applies with equal force to the case of a dormant partner. It is said that there was fraud in the concealment of the partnership in this case. This may be averred of every case of partnership in which the names of the partners are not communicated to the world. If the concealment of a dormant partnership is a fraud, then the dissolution of such a partnership ought to be published, which has never been held to be necessary. At all events, Welsh cannot be charged with a fraud, since the evidence shows that he was at the time and continues to be, a resident of Baltimore ; arid to succeed in this action, the parties must be shown to be jointly liable. Gow. 273 ; Armstrong v.Hussey, (12 Serg. & R. 315;) *Kelly v. Hurlbut, (5 Cowen, 534 ;) Newmarch v. r*qq^-i Clay, (14 East, 239). There is no authority for the position taken on the other side, excepting the case of Robertson v. Wilkinson; and there is little more in that case, than the dic- tum of Baron Graham. The opinion of the court was delivered by. SERGEANT, J. The defence in this suit embraced the grounds taken in Mason v. Connell, and others not arising in that case. 396 SUPREME COURT [March Term, (Carter v. Council.) _ In the first place, the sale by the present plaintiff was made on the 8th June, 1829, which was subsequent to the date of the paper executed by Connell and Worley, revoking the partnership of the 1st September, 1828 ; and the defendants contended that the firm was, in no event, liable for this debt. The plaintiff answered that the paper of the 1st June, 1829, was antedated ; and called witnesses to show that Connell was absent from Phila- delphia at that time. In the next place, the defendants set up the release executed by the plaintiff to Connell on the 20th August, 1829, as a bar to his present demand. The plaintiff in- sisted that this release was fraudulently obtained, and was there- fore not binding on the plaintiff, who had refused to receive a div- idend under Connell' s assignment. Two points were reserved on the trial. 1st. How far the al- leged fraud would affect the validity of the release. 2d. Whether the deposition of Connell was admissible in evidence. Besides these reserved points, on an objection made by the defendants, to a question proposed by the plaintiff to Richard C. See, a wit- ness for the plaintiff, the question was overruled ; and this forms another ground of the plaintiff's motion for a new trial. The second reason for a new trial, assigned by the plaintiff, does not appear to be correct in fact ; and the 4th has not been urged. The first question is, how far the validity of the release, as a bar to this suit, is affected by the alleged fraud in its procure- ment. It is contended by the plaintiff, that Worley & Welsh were at the time of the sale of the goods for which this action is brought, dormant partners of Connell, in the mercantile house in his name at Pittsburg : that on the 21st June, 1829, he made an assignment of all his estate, goods, debts, &c. to Francis Worley in trust, and in that assignment which was executed by Connell, of the one part, and Francis Worley, of the other part, they rep- resented Worley & Welsh to be creditors of John Connell, and gave them a preference as such, to the amount of upwards of eleven thousand dollars, being more than one-half of the assets of Connell ; by virtue of which Worley & Welsh received that sum, leaving the unpreferred releasing creditors but about ten per cent, of their claims : that it was a fraud in the parties to that assignment, not only to conceal the fact of the partnership, but, in addition, to hold out Worley & Welsh as creditors, when they r*3Q71 wcre P ar * ners w ^ tn Connell, and co-debtors; and *to en- able them to abstract a large amount of money from funds that ought to have gone to creditors ; and that a release procured under such circumstances, is voidable at the option of the party imposed upon. A release or any other conveyance obtained by fraud, will be set aside by a court of equity. A release to an insolvent under 1836.] OF PENNSYLVANIA. 397 (Carter v. Connell.) the stipulations contained in his assignment, is subject to this rule as much as any other. While on the one hand, the assigning debtor possesses the lawful power of paying such creditors first as he pleases, and of stipulating that none shall receive any thing from the assigned funds unless they discharge him from their claims ;* pn the other hand it is his duty to make a fair and can- did statement of his circumstances, and to avoid any thing like the use of deception or unfair dealing to obtain a discharge. The creditors in general, can know little or nothing of his affairs ; they must rely in a great measure, on his representations of his situa- tion : and if he makes false representations in material matters, and there be mala fides in so doing, by means of which the cred- itors are subjected to loss, a release obtained under such circum- stances, may be avoided. This principle is stated in various cases ; and in 2 Eq. Ca. Ab. 379, there is this case : If there be two dealers, and one of them is very much indebted to the other, and in order to get an abatement from him, he makes him believe he is insolvent, by absconding, skulking, or shutting up shop, and thereby procures a release or an abatement, when in truth the man is really solvent, the Court will relieve against such release ; and this was agreed to have been done, and the case of Bonny v. Bonny , quoted for an instance. Secus^ if the party had not just cause to fear the loss of his debt. Now the case here supposed is, that the assignor and assignee combined to make the plaintiff believe that Worley & Welsh were creditors, and to induce him to ratify an assignment by which they were preferred for more than half the assets, and to give a release by which they are forever discharged from their liability to him ; and that the plaintiff is to be bound by that release, notwithstand- ing it should aftenvards turn out that these supposed creditors were in fact the debtors, that the money abstracted by them as a preferred debt, was in justice and law, the property of the plain- tiff and other creditors ; and that they were bound not only to re- fund that money, but to make good all deficiencies. It is impos- sible to sustain such a proposition. Whether the ostensible partner is bound to disclose the name of a dormant partner, and how far his omission to do so would render the latter liable when discovered, notwithstanding a release to the former, it is not necessary to determine ; though the dicta of judges in the case cited from Price's Excheq. Reports are pretty strong on the point. But where there is not merely a suppressio veri but a sugc/estio fahi, not merely a suppression of the name of a dormant partner, but a representation that he is a creditor, and a * Act 17th Apr. 1843, 1, P. L. 273, Pur. Dig. 60, 2 ; Act 16th April, 1849, 4, P. L. 664, Pur. Dig. 60, 3. 398 SUPREME COURT. [March Term, (Carter . Connell.) r*qno-i *course of conduct calculated to mislead the creditors, J and to divert a portion of the funds of the ostensible partner into the hands of the dormant partner, to the injury and loss of the creditors, no doubt can be entertained of its being deemed in law fraudulent, and rendering the release inoperative. It has been suggested that supposing the preference an undue one, the only consequence would be, that the assignee is liable for the amount, and must account for it to the creditors, but the re- lease remains good. If the creditor chose to ratify the release, and look to the assignee for the moneys misapplied, he might elect to do so. But he may also elect to consider a release fraudulently procured, as null and void, and be remitted to his original rights. Even with the restoration of the abstracted funds, the assigned estate might not suffice to pay. Besides, the creditors ought in justice and equity to have received the proceeds of that fund as soon as realized. It would be exceedingly unjust and oppressive if after detecting an imposition, and a long delay, they were in no better situation than they would have been had nothing of the kind happened, and if they were at last compelled to force out of the assignee what should have passed into their hands in the regu- lar course of settlement of the estate. It may also reasonably be questioned whether any release would have been given, had the circumstances then appeared as they are now stated to be. If then, the partnership existed, the concealment of the names of the dormant partners, connected with the other matters alluded to, gives the plaintiff a right to treat the release as a nullity ; and it is not a bar to his action. 2. Was the deposition of Connell evidence for the defendants ? This deposition went to disprove the alleged partnership : to show its dissolution prior to the sale by the plaintiff ; that Worley & Welsh were bona fide creditors of the witness, and generally to prevent the plaintiff's recovery ; and the defendants rely on the circumstance of Council's not being served with process in this suit, and a release to him by the defendants, prior to his exami- nation, of all claim or demand on account of moneys that might be recovered, as removing the objection, that he is a partner.* The contrary, however, was decided by this court in the cases of Marvin v. Bla<;k, (2 Penn. Rep. 138,) and M l Coy v. Liyhtner, (2 Watts, 347,) and the same point was determined in Youny v. Bairner, (1 Esp. N. P. 103,) and Simons v. Smith, (1 Ry. & Mood. 29, 21 Eng. Com. L. Rep. 374.) The reason is that a judgment in favor of the plaintiff would authorize a payment of * 1 Barr, 440 : 3 Id. 361 ; 4 Id. 200 ; 5 Id. 290 ; 9 Id. 25 ; 1 Casey, 386 ; 14 Wright, 285, 454. Not applicable in actions in tort, 8 Casey, 364 ; except ejectment, 12 Wright, 394. Act 15th April, 1869, 1, P. L. 30, Pur. Dig. Sup. 1566, 1. 1836.] OF PENNSYLVANIA. . 398 (Prescott v. Union Insurance Co.) this debt by the defendants, out of the partnership funds, or it could be enforced by execution ; which would not be the case if the plaintiff failed. The interest of the witness in these funds as partner is, therefore, directly affected by the result of the suit. It is our opinion, that the deposition was inadmissible. 3. The decision of the second point renders the last immaterial ; because it was to impeach the credit of Connell, that the plaintiff * offered the paper, in relation to which the question r*qqcn objected to was put. At the same time we have no *- doubt, the question was rightly rejected. If a witness is called to' speak to handwriting, and possesses a knowledge of it, from having seen the person write, or seen his writing, he ought to be asked as to his belief, whether the paper is his handwriting or not. To inquire of a witness in such case, what is his impression, is de- scending to a test too vague to form a judgment upon.* It is like* asking a witness, what was his understanding of a conversa- tion, instead of inquiring what the parties said. The rule is stated in Phill. Ev. 421 : " A witness may be asked, whether he has seen a particular person write, and afterwards whether he believes the paper in dispute to be his handwriting." New trial awarded. Cited by Counsel, 2 Wharton, 135 ; 1 Watts & Sergeant, 337 ; 8 Id. 389 ; 3 Barr, 155 ; 11 Harris, 156, 414 ; 4 Wright, 202 ; Brightly, 440. Most of the points of this and the preceding case were brought up again, and affirmed, in 2 Wharton, 542. [PHILADELPHIA, APRIL 11, 1836.] PRESCOTT against The UNION INSURANCE COMPANY. IN ERROR. 1 . The want of sea-worthiness in a vessel, at the commencement of the voyage, will be a sufficient defence to the insurers on the vessel, although she arrived in safety at her port of destination. 2. Where the question was as to the sea-worthiness of a vessel, in an action by the insured against the insurer, and there being no contradictory tes- timony as to the facts, the judge charged the jury that " if the facts are as stated in the protest, that the vessel began to leak as soon as she began to sail or soon after, and continued to leak up to the time of the storm, or any fortuitous accident, and would in consequence thereof have re- quired repairs although there had been no storm, then the law says she was unseaworthy," it was held that the law was correctly laid down to the jury, and that the Court was right in not leaving it to the jury to presume sea-worthiness or otherwise. *See 8 Watts, 411 ; 5 Watts & Sergeant, 337 ; 1 Harris, 646 ; 12 Id. 335. 399 SUPREME COURT [March Term, (Prescott e. Union Insurance Co.) THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of covenant brought in that Court by David W. Prescott against The Union Insurance Company of Philadelphia. The action was upon a policy of insurance for $1500, dated the 30th of June, 1830, executed by the defendants upon the f~*4nm schooner *James Munroe, at and from Philadelphia, to J- the Island of St. Thomas, and back to a port in the United States, with liberty of St. Jago or Porto Rico. The claim was for a partial loss, incurred, as the plaintiff alleged, in consequence of a gale of wind ; and the only question was the sea-worthiness of the vessel. The evidence produced on the trial by the plaintiff consisted of the deposition of the captain and mate, the protest made by them, the report of the surveyors and the testimony of two other nauti- cal persons. The captain testified that the vessel sailed from Philadelphia on the first of July, 1830, that she was then sound and sea- worthy. From the 4th to the 9th of July she leaked so as to require occasional pumping. On the 9th a gale of wind came on with a heavy sea, by which the leak increased consider- ably, making 300 strokes per hour, carried away the main-boom and topping lift, the vessel straining much and the pumps con- stantly going. The worst of the gale continued about 36 hours. On his cross-examination he said, that the leak was rather increas ing previously to the gale, but never so as to cause alarm. If a vessel leaked on an average 200 strokes per hour, it would be a great state of leakiness : if 250 strokes per hour, it would have required something to be done before it would be safe to go to sea again. If there had been no gale and she had continued to leak during the passage, as she did on the day before the gale, then, at a place like St. Thomas, he would have considered it best and necessary to have her looked at before going to sea again. With a cargo such as fustic, which would not be injured by wet, he would not have been afraid to risk himself on a voyage home in her again, without having any thing done to her ; but he would not have taken a cargo of ordinary merchandize. She did not leak much on her homeward voyage. She had been caulked on deck and under deck at St. Thomas. The protest which was sworn to at St. Thomas, on the 20th of August, 1830, set forth the copy of the log book, from which it appeared that the vessel left the capes of the Delaware on the 4th of July, on which day they had pumped the ship every half hour. On the 5th the same entry appeared, " she making at her pumps 200 strokes per hour on an average." On the 8th it is said, " we find our leak increas- ing, it having required 250 strokes at the pump every half hour ; therefore, we pump ship every 15 minutes." 1836.] OF PENNSYLVANIA. 400 (Prescott v. Union Insurance Co.) commenced, during which the pump made 300 strokes per half hour, and on the next day the ship was pumped every 5 minutes. On the 12th of August site arrived at St. Thomas, where a sur- vey was held upon her. The surveyors reported that they " found her very open outside and in, above water, found the partners of her mast much strained, and the brake of her quarter deck open," and they recommended " her being caulked and paid inside and out, the stern sheathed, her chain bolts backed out and made larger, her sails repaired, and two coils of rigging furnished for halyards and lanyards." She was accordingly repaired at an expense *of $187 68. A captain of a vessel, called on PMA-I-I the part of the plaintiff, said, that he did not know that L he should consider 200 strokes per hour as any thing more than common leaking. He had been in vessels that required that quantity of pumping, and would not consider them unseaworthy, and he had been in a vessel that leaked at the rate of 250 strokes in an hour, without being afraid to go in her. Another nautical witness testified to instances of vessels leaking 250 to 300 strokes per hour, that were otherwise sound. On the part of the defend- ant a witness was called, who said he had been a dispacheur for 17 years, and upon the facts stated in the protest would consider the vessel unseaworthy. The evidence having been closed, the Judge charged the jury as follows : "This is a mere question of property to be decided without excitement and according to law and evidence. But for what has fallen from counsel, I would not caution the jury on this head. The counsel, it is true, disclaim all intention to prejudice the jury, or to allege that a different view is to be taken of the rights of an individual from that which would be taken of the rights of an incorporated company ; but yet, the remarks of counsel have had such a tendency, that I feel it my duty to make these observations, however, I may regret the necessity of doing so. Insurance is a contract, whereby, for a stipulated consideration called a premium, one party, called the insurer, undertakes to in- demnify the other, called the insured, against certain risks. The subject in the present case was the ship, being a schooner, called the James Munroe ; the risk insured against and now in question, the perils of the sea. The voyage was a voyage from Philadelphia to St. Thomas. The claim is for a partial loss alleged to have been occasioned by the perils of the sea. Good faith is the basis of this contract ; and the mere act of effecting insurance is a pledge on the part of the assured that certain facts are true ; thus, where the parties have omitted to 401 SUPREME COURT [March Term, (Prescott V. Union Insurance Co.) say anything about sea-worthiness, the mere effecting the policy carries with it an implied warranty on the part of the insured, that the vessel is sea-worthy. If it t\*rns out that the ship was not sea-worthy at the commencement of the risk, the condition on which the liability of the underwriter depends, is forfeited ; and it is, so far as the responsibility of the insurer goes, as if no contract has been made : and this is true, whether the unseaworthiness were known to the insured or not. It is not necessary to impute a fraud to him. The rule is the same, even though the unsea- worthiness arises from some latent defect which the assured had no knowledge of, and could not have discovered or prevented. f*402T *These principles are well settled : they are founded I in good reason, having in view the protection of life and property. The idea of sea-worthiness is not limited to the sufficiency of the vessel merely to save the lives of the persons, who may be on board, but extends, also, to her sufficiency for the safety of the property on board of her. The vessel must be sufficiently staunch and sound for the employment and situation, intended by the in- surance. She must be in a suitable and fit condition to carry the cargo put on board, or intended so to be. It is not disputed, that on the arrival of the schooner at St. Thomas, certain necessary repairs were made, and that they, with incidental expenses, amounted to $204 68 ; the sum which with interest is claimed by the plaintiff in this suit. The defence, here, is, that the vessel was unseaworthy at the commencement of the voyage ; and the defendant's counsel con- tend, that the testimony in the case fully proves this. It is clear that the underwriters are not liable for the wear and tear of the voyage ; the mere ordinary working and straining of the vessel, any more than for an insufficiency or inherent defect in her. A portion of the repairs, as appears by one of the vouchers pro- duced by the plaintiff, was in consequence of leaking or springing a leak ; and in such a case, the law lays down certain rules, which are obligatory upon the parties, and which are to be enforced by courts and juries. Though the, general presumption of the law is, that the vessel is sea-worthy and the party alleging unseaworthiness, must, in most cases, show it : yet where springing a leak has given occa- sion for the repairs, the burthen of proof is thrown upon the in- sured: as repairs, from such a cause, are not usually considered as covered by the liability of the underwriters. The assured must, in such a case, show that the damage, for which he has a claim, is the direct effect of a fortuitous accident. In the absence of such proof, the springing a leak is to be attributed, either to the working and straining of the vessel, which is the wear and 1836.] OF PENNSYLVANIA. 402 (Prescott v. Union Insurance Co.) tear of the voyage, or to some insufficiency or inherent defects ; for neither of which, are the underwriters liable ; and if a vessel spring a leak soon after the risk commences, without any apparent cause from the perils insured against, especially when it satisfac- torily appears, that no accident happened to occasion the damage or defect, the marine law infers, that she was defective at the be- ginning of the risk and not sea-worthy. The rule must be at least as strong where the leak commenced ^yith, and continued through the voyage. If the vessel was unseaworthy at the commence- ment of the risk, it is immaterial whether or not the subsequent injury was in any degree occasioned by the storms or gales men- tioned in the protest. If the case in 1 Johns. 241, is opposed to these principles, it is not law with us. It could be distinguished, however, from a case like the present : but it is unnecessary to point out the differences. *Then what are the facts here ? [~*4031 The protest is by our law evidence ; but it is liable to L explanation ; and the formal printed part of it is not to be allowed weight against the substantial and written part of it, and the testi- mony of the persons, who signed it, when taken according to law, subject to cross-examination. The power of the jury relates to the facts. The extent to which it may, with propriety, be exercised, can hardly, I presume, form the subject of controversy. If thie facts are clear and un- disputed, and the law has laid down rules for the government of us all, in regard to such state of facts, all appeals to the jury to disregard the law, as explained by the Court, are to be avoided ; inasmuch as they impute to a jury a disposition to set up a stand- ard for themselves, different from that by which all classes of men are protected in a civilized and enlightened community, and are positively mischievous, if responded to in the spirit in which they are made ; because the law will not lend itself to sustain such an answer ; and the parties are necessarily put to the trouble and expense of another investigation, where the law most assuredly will control every branch of the tribunal, which it has created to carry out its own purposes. If the facts are as stated in the written protest that the ves- sel began to leak as soon as she began to sail, or soon after, and continued to leak up to the time of the storm, or any fortui- tous accident, (and would, in consequence thereof, have required repairs, although there had been no storm,) then the law says, she was unseaworthy, and the defendants are not liable in this suit. If there were any other facts contradicting these, you might certainly weigh them, and find accordingly, and if they satisfied you, that the vessel was sea-worthy at the commence- VOL. i. 27 403 SUPREME COURT \_March Term, (Prescott t. Union Insurance Co.) ment of the voyage, a different result would be required. In the absence of such other facts, the rule of law must prevail." The jury after being out some time returned, and inquired of the Court : " Whether the law pronounces the fact of the vessel leaking at the time of, or soon after her leaving port, decisive of the question of her sea-worthiness ; or whether this question is left open for the jury to decide from their judgment on all circum- stances." The Court answered as follows : "If the facts are, as stated in the written protest, that she began to leak as soon as she be- gan to sail, or soon after, and continued to leak up to the time of the storm or any fortuitous accident, (and would, in consequence thereof, have required repairs, although there had been no storm,) then the law says, she was unseaworthy." The jury thereupon found for the defendants, and the plaintiff r*4041 *tok a writ of error, and having removed the record to J this Court, assigned the following errors : " The Court below erred in their charge to the jury in the fol- lowing points : First. That when springing a leak has given occasion to re- pairs, the burthen of proof of seaworthiness is on the insured, as such repairs are not usually considered as covered by the policy : the insured must show that the damage is the direct effect of acci- dent. Second. That if a vessel spring a leak soon after the risk com- mences, without any apparent cause, the law infers unseaworthi- ness at the beginning of the risk, and the subsequent injuries by storm are immaterial. Third. That the printed formal part of the protest is to have no weight against the substantial and written part, and the testi- mony of those who signed it. Fourth. That if the facts are, as stated in the written protest, that the vessel began to leak as soon as she began to sail, or soon after, and continued to leak up to the time of the storm, and would, in consequence thereof, have required repairing, although there had been no storm, then the law says, she was unseaworthy. Fifth. The Court erred in taking from the jury indirectly the decision of the facts : 1st. By censuring the plaintiff's counsel for addressing the jury as the judges of the fact of sea- worthiness. 2d. By the whole tenor and drift of the charge, assuming to the Court the decision of that question upon their view of the facts as one of mere law. 1836.] OF PENNSYLVANIA. 404 (Prescott v. Union Insurance Co.) 3d. By restricting the jury to the facts stated in the written part of the protest. 4th. By putting these facts to the jury as clear and uncon- tradicted, and as establishing unseaworthiness. 5th. By intimating to the jury, that a verdict against the Court's opinion on the question of seaworthiness, would be nugatory. Sixth. The answer of the judge to the question by the jury was evasive. The question was direct ; " Whether the law pro- nounces the fact of a vessel leaking at the time of, or soon after her leaving port, decisive of the question of sea- worthiness." This should have been answered " yes " or " wo." But the judge complicates his answer with the circumstance of her requiring re- pairs, and leaves the actual question unanswered, except by im plication. Seventh. The judge erred in stating in his charge as applicable to this subject, " that the idea of sea-worthiness is not limited to the sufficiency of the vessel merely to save the lives of the per- sons, who *may be on board, but extends also to her suffi- rjMnc-i ciency for the safety of the property on board of her." Mr. F. W. Hubbell and Mr. Holy for the plaintiff in error. The question is, whether the circumstances of a vessel being leaky is sufficient to deprive the insured of compensation for injury suffered by reason of a storm. The judge ought to have left the question of sea-worthiness to the jury as one of fact, in- stead of deciding it as a matter of pure law. Even as a question of mere law there is error in the charge. Had this been an insurance on the cargo, it would have been right ; but the in- surer on the ship had nothing to do with her capability to trans- port a cargo of flour without damage. The true proposition is, was the vessel sufficient for her own preservation. There is error in the answer to the application of the jury. They ought to have been told, that if the vessel was leaky to such an extent as to require repairs, she should be considered unseaworthy. There is no authority to support the position, that a leak makes a vessel unseaworthy. The experience of the nautical witnesses proves, that this cannot be the case. It will be found that in all the cases, " sea-worthiness " and " navigability " are converti- ble terms. Bell v. Read, (4 Binn. 130 ;) Cormack v. Gladstone, (11 East, 346 ;) 1 Condy's Marshal, 154, 476 ; Park on Ins. 220, 221, n. ; Patrick v. Hatty, (1 Johns. Rep. 244 ;) 11 Picker. Rep. 56 ; Taylor v. Lowell, (3 Mass. Rep. 344 ;) Barnwell v. Church, (1 Games' Rep. 246 ;) 1 Strange, 127 : Talcott v. Ins. Co. (2 Johns. Rep. 75.) 405 SUPREME COURT. [March Term, (Prescott v. Union Insurance Co.) Mr. Cadwalader and Mr. J. C. Biddle, contra. This case was decided mainly upon the plaintiff's own evi- dence. The effort was to make the question of sea-worthiness, which is a mixed one of law and fact, altogether a matter for the jury ; which the judge resisted ; and his course in this respect is sanctioned by the authorities. BusheVs case (Vaughan's Rep. 144 ;) Oneby's case, (2 Ld. Raym. 1484 ;) Pfoutz v. Steel, (2 Watts, 413, 14 ;) Crist v. Brindle, (2 Penn. Rep. 262 ;) Fran- ciscus v. Reigart, (MS.;)* Stewart v. Stacker, (1 Watts, 141, 2;) Malson v. Fry, (1 Watts, 433 ;) Riddle v. Murphy, (1 Sergeant & Rawle, 237, 8 ;) 9 Peters' Rep. 567, 8; Baker v. Lewis, (4 Rawle, 357 ;) Kingston v. Leslie, (10 Serg. & R. 389, 90 ;) Johnson v. Gray, (16 Serg. & R. 366;) Somerville v. Holliday, (1 Watts, 516, 17 ;) Star v. Bradford, (2 Penn. Rep. 398 ;) Commonwealth v. Henderson, (1 Penn. Rep. 401 ;) 9 Cowen, 225; Fox v. Clifton, (9 Bingh. 115.) Then upon the law of this case, the charge was in conformity with the opinions of the best text-writers, and the decisions of the Court. When the vessel is shown to be defective, the burden of proof, that she was sea-worthy, rests upon the insured : 1 Marshal, 156 ; Parke, 221, n. ; Stephens, 152 ; Benecke, 455 ; 1 Phillips on Ins. 116, 17 * Holt on Shi PP in g> * 303 5 1 Dow ' s Re P- 342 > 344 J Talcott v. Com. Ins. Co. (2 Johns. 128, 130;) Annen v. Woodman, (3 Taunt, 299 ;) Sell v. Read, cited on the other side, was a question of bailment disconnected with the doctrine of insurance ; and in the recent case of If art v. Allen, (2 Watts, 119,) the present Chief Justice has shown, that the Nisi Prius opinion of Judge Brackenridge was not sustained by the Court in bank. There is no such distinction as that contended for on the other side, between the sufficiency of a vessel for self-preser- vation and for the preservation of the cargo. Abbott v. Brown, (1 Caines' Rep. 292 ;) 2 Phillips on Ins. 110 ; Hughes on Ins. 205. The opinion of the Court was delivered by SERGEANT, J. The legal principles in relation to sea-worthi- ness of vessels insured, are clearly and succinctly stated in the opinion of the (now) President of the District Court, brought up with t this record. The plaintiff insists, that the doctrine on the subject is not applicable to the present case. He admits the law to be, as laid down in the authorities, that if a vessel sails on her voyage, and in a day or two, becomes leaky, and found- ers, or is obliged to return to port, without any storm, or visi- ble or adequate cause to produce such an effect, the presumption * Reported, 4 Watts, 98. 1836.] OF PENNSYLVANIA. 406 (Prescott v. Union Insurance Co.) is, that she was not sea-worthy when she sailed. Munro v. Vandum, (Park's Ins. 224 ;) Talcott v. Marine Ins. Co. (2 Johns. Rep. 124.) But he contends, that if she perform the voyage, and arrive at her port of destination, she is to be deemed sea-worthy, as between the insurer and the insured on the vessel, whether such leakiness has occurred or not. This would sub-' vert the rule as to sea-worthiness altogether, and make it de- pend not on the state and condition of the vessel at the time she sails, but on the event. It would substitute an unfair and dan- gerous test, in lieu of the wise and salutary requisitions imposed by the law ; for the best provided vessel may meet with misfort- une, and founder at sea, or be compelled to return to port. On the other hand, a weak and insufficient ship may attempt the voyage, to the imminent danger of the lives and property on board, and yet escape destruction almost by a miracle. It is not by events, that human affairs are to be judged. Experience teaches us, that in a vast majority of these cases, unless due pre- cautions are taken, disasters will ensue : and therefore the law re- quires it of the insured, as a condition precedent to the attaching of the contract of insurance, that the vessel at her departure from port be tight, staunch, and strong, well fitted, manned, and pro- vided with all necessary requisites, to meet the perils of the ocean, which she is to encounter in her voyage. And the inquiry is not, after the voyage is ended, has she escaped notwithstanding a gross neglect of all that prudence dictated for her preservation ; but was she equipped and fitted out as she ought to have been. If she was not, she was not sea- worthy, not worthy or fit to go to sea ; not in a condition *to meet and resist its perils. A contrary r*4ft7n doctrine would tend to throw on the insurer the expense of repairs, which the insured himself ought to have disbursed before the vessel sailed. Besides, a vessel tight, staunch, and strong, and in good sailing condition, will pass, without harm, through assaults which would materially damage a .leaky and infirm ship. The latter is not only less able to resist the shocks of the winds and waves, but the crew are exhausted by the neces- sity of pumping, and, therefore, incapable of performing their duty, when great exertions become necessary. She is not, there- fore, so well manned as she otherwise would be. Nor is it wise or safe to tempt owners and shippers to run into danger, when unprovided to meet it. The disasters of mariners, not unfre- quently of the most dreadful and appalling character, ought not to be multiplied, by stimulating them into unnecessary experi- ments, how far they dare venture in a leaky vessel. The law casts her mantle of protection over them, as well as the interests of the shipper, by declaring that no insurance on the vessel is valid, if she is put to sea in an unseaworthy state ; and it is of 407 SUPREME COURT [March Term, (Prescott 0. Union Insurance Co. ) importance to the great interest embarked in commerce, as well as to the preservation of life, that the requisitions of the law in this respect should not be relaxed. The owner should be obliged to perform his duty, and be induced to attend to that, which he alone can attend to, the state and condition of his vessel, and to place her, under the guaranty of the policy, in a condition fitted to meet those perils of the sea, which the insurer takes upon him- self. If he does not, he throws on the insurer other perils not within the contract : perils which do not the less exist, because, by good fortune, they may happen not to prove fatal : and which may, of themselves, produce an average loss, without foundering the ship or defeating the voyage. If the owner does not choose to do this, or even if it occur without his knowledge or default, (and the same rule applies to policies on goods,) there is no con- tract : the consideration fails, and the risk remains with the party himself. We are, therefore, of opinion, that the doctrine is appli- cable, notwithstanding the vessel reaches her port of destination ; if it sufficiently appear by the evidence, that the vessel sailed in a leaky state, and in want of repairs. And this is the point of view in which the Court below put the case to the jury. 2. Nor is there any foundation for the complaint, that the Court took the facts from the jury, or assumed more than they ought legally to have done in charging them. The Court applied the rule of law to the facts as they appeared, at the same time instructing the jury, that if there were contradictory facts, they might consider them, and the result would be different. There were, however, no contradictory facts shown, and the Court would have erred to leave it to the jury to presume facts, without any evidence, from which such presumption could legally be drawn. " To submit a fact destitute of evidence," says C. J. Gibson, in l"*4081 Stouffer v. Latshaw, (2 Watts, 167,) " as *one that J may nevertheless be found, is an encouragement to err, which cannot be too closely observed, or unsparingly corrected." To the same effect, is the opinion of the Court delivered by Mr. Justice Rogers in Star v. Bradford, (2 Penn. Rep. 398.) Here the evidence was clear, that from her departure, this vessel, with constant light breezes, leaked ; that the leak continued increasing for nine days, so that the hands were obliged to pump, at first, every hour, then every half hour, and then every fifteen minutes : afterwards a storm commenced, and the vessel labored much, and shipped great quantities of water, till they had to pump every five minutes, and she continued very leaky, damaging the cargo, until her arrival. No evidence was given by the insurer to account for this state of the ship : there was no violence of wind or wave till the 9th day : there was not time for the ordinary working and straining of the timbers to produce a leak : and the 1836.] OF PENNSYLVANIA. 408 (Vanarsdale v. Richards.) inevitable presumption is, that she had an inherent defect at the time of sailing. This is the legal presumption, and so stated in the authorities, and elementary writers, and the Court, in laying down the law to the jury, could do no otherwise than state that legal presumption on the facts existing. Upon the whole, the charge of the Court is, in the opinion of this Court, correct, and the judgment must be affirmed. Judgment affirmed. Cited by Counsel, 4 Wharton, 65 ; 3 Watts & Sergeant, 150 ; 2 Jones, 394 ; 9 Harris, 209. See also, 2 Casey, 192. [PHILADELPHIA, APRIL 12, 1836.] VANARSDALE against RICHARDS. Where an assignment has been made for the benefit of creditors, an action cannot be maintained by one of the creditors against the assignees, until the accounts of such assignees have been settled in the Common Pleas, and a decree made by that Court for distribution ; and the rule is the same, whether the action is for money had and received, or upon aver- ment of misconduct and mismanagement on the part of the defendants. THIS was an action on the case brought by Aaron Vanarsdale to the use of William Stell, trustee of Hannah Vanarsdale, against Samuel Richards, who survived George Billington, assignee of Robert E. Gray. The declaration contained counts for money had and received, work and labor, &c. and on an account stated, and a special count *for mismanaging the trust estate, &c. to the prejudice r# , nQ1 of the plaintiff. The case was tried before Mr. Justice Kennedy, at a Court of Nisi Prius held in Philadelphia, on the 10th of December, 1835. It appeared in evidence, that the plaintiff was a creditor of Robert E. Gray, who, on the 20th of August, 1818, made an assignment of all his estate and effects to Samuel Richards and George Billington, upon the usual trusts, viz. to sell, or other- wise dispose of the assigned estate, and distribute the proceeds among such creditors as should execute a release to the assignor. The plaintiff complied with the condition by executing a release within the required time. On the 1st of March, 1824, Richards and Billington conveyed the estate to Samuel N. Gray. In 1825, a citation was issued from the Court of Common Pleas, at the instance of the plaintiff, Vanarsdale, to Billington, the assignee : in obedience to which he settled an account of his receipts and 409 SUPREME COURT [March Term, (Vanarsdale v. Richards.) payments as assignee. It did not appear, that Richards had set- tled any accounts. Upon these facts, the learned Judge being of opinion, upon the authority of a case decided at the last term at Pittsburgh,* that the action could not be maintained, the plaintiff's counsel sub- mitted to a nonsuit, with leave to move in bank to take it off. A motion having accordingly been made: Mr. Randall, for the plaintiff, admitted that the recent decisions of the Court, in Rush v. G-ood, (14 Serg. & R. 230,) and Gray v. Bell, settled the question, that assumpsit for money had and received, &c. would not lie against assignees, to recover a proportion of the fund, until a settlement of their accounts had been duly made in the proper office ; but he endeavored to distinguish this case from those decided: the present action charging the defendants with tortious conduct in respect to the sale of the property, &c. Mr. Randall, also cited a case of M l Leod v. Latimer, (MS.^) decided by this .Court in 1826, where an action, by a creditor against assignees to recover a proportionate share of the fund, was sus- tained; although he admitted that the objection was not there taken. | Mr. Tilghman and Mr. Peters, for the defendants, relied on the two cases above stated. PER CURIAM. The trust involved in this assignment, is pecu- liarly a subject of equitable cognizance ; and though an actual want of chancery powers might compel us to sustain an ation at law in the first instance, it does not follow, that a cestui que trust 41 01 n t *be thrown on his equitable resources, where -" such have been provided for him. We consider the point to have been already decided. Mr. Randall took nothing by his motion. Cited by Counsel, 10 Watts, 62 ; 9 Harris, 294 ; 7 P. F. Smith, 228. Cited by the Court, 6 Watts & Sergeant, 256 ; 7 Id. 30 ; 12 Harris, 486. *Qray v.Bell, (J/&) This case will be reported by Mr. Watts in his 4th volume. f Having been favored by Mr. Randall with a copy of the opinion of the Court in this case, I have inserted it, with some others, in an appendix to this volume. REP. 1836.] OF PENNSYLVANIA. 410 [PHILADELPHIA, APRIL 14, 1836.] The UNION CANAL CO. against YOUNG and Others. In 1792, an act of the legislature was passed, to incorporate a company for opening a canal between the rivers Delaware and Schuylkill, which authorized the corporation to purchase, take, and hold all such real estate as should be necessary for them in the prosecution of their works : in pursuance of which they proceeded to lay out the canal, part of which passed through the land of A., who was a stockholder in the Company. In 1793 a parol agreement was made between the Company and A. for the price of that part of his land taken for the canal ; which agreement was recognized by a bill or memorandum in writing made by A. in 1798. About the year 1793, the canal was actually dug through the land of A.; but the communication between the two rivers was never completed ; and after the year. 1795, nothing further was done in opening the communi- cation by this Company ; but the strip remained within the fences of A. and with the remainder of his land, was at one time let to a tenant for years, who used part of it, with the other ground, for the purpose of raising grain. In 1811 an act was passed, authorizing a junction of the Delaware and Schuylkill Canal Co. with the Schuylkill and Susquehanna Navigation Co. under the name of the Union Canal Co., by virtue of which all the estates, rights and privileges of the two companies were vested in the new corporation. In 1819 another act of the legislature required the Union Canal Co. to confine their operations to the completion of the com- munication between the Schuylkill and the Susquehanna. In 1821 A. accepted certificates for 10 shares of stock of the Union Canal Co. in lieu of his stock in the old Delaware and Schuylkill Canal Co. In June, 1833, part of the land of A., which being in the immediate vicinity of Phila- delphia, had, in the mean time, greatly appreciated in value, was sold for building lots to B. and C. who gave mortgages for the purchase, money. In an ejectment instituted to Dec. term, 1833, by the Union Canal Co. against the heirs of A., and the purchasers under them, it was held, (1st.) That the plaintiffs acquired a right to the soil, occupied or taken for the canal, and not merely an easement therein. (2d.) That the possession of A. was not to be considered as adverse to the plaintiffs, so as to give effect to the statute of limitations. (3d.) That the abandon- ment of the canal, and the dissolution of the old company in 1811, did not raise any equity, which would avail the defendants as a defence, or authorize them to treat the contract as rescinded. (4th. ) That supposing B. and C. to be purchasers without notice, they were not entitled to pro- tection further than as they had actually paid the purchase money : the mortgages not being considered as payment. THIS was an action of ejectment, brought by the Union Canal Company of Pennsylvania, against William W. Young, John M'Allister, * Junr. Joseph Fox and Philip M. Price, to p^-, -. -. recover a piece of land containing 135 perches, formerly "- of William Young, deceased. The action was tried at a Court of Nisi Prius, held by Mr. Justice Rogers, on the 1st of March, 1836, when by consent of parties a verdict was taken for the plaintiffs, subject to the opinion of the Court upon the whole case. On the 29th of September, 1791, an act of the legislature of 411 SUPREME COURT [March Term, (Union Canal Company v. Young.) Pennsylvania was passed to incorporate a company, for opening a canal and lock navigation between the rivers Schuylkill and Sus- quehanna ; by the second section of which, the company were authorized to purchase, take and hold, in fee simple or for any lesser estate, all such lands, tenements and hereditaments, as should be necessary for them in the prosecution of their works. On the 10th of April, 1792, an act was passed to incorporate a company, for opening a canal and water communication between the rivers Delaware and Schuylkill ; the 2d section of which au- thorized this company to purchase, take and hold real estate in like manner. The 8th section declared, that it should be lawful for the President and Managers of this Company " to contract and agree with the owners of any lands and tenements, for the pur- chase of so much thereof as shall be necessary for the purpose of making, digging, and perfecting the said canal, and of erecting and establishing all the necessary locks, works and devices, to such a navigation belonging, if they can agree with the owners: " but in case of disagreement, or in case the owner thereof should be a feme, covert, under age, non compos mentis, or out of the state, or otherwise incapacitated to convey, a proceeding in the nature of a writ of ad quod damnum was authorized. In pursuance of these acts the two companies were organized, and the Delaware and Schuylkill Canal Company proceeded to lay out, and construct their canal ; the line of which passed through the land of William Young, who was a stockholder, and for some time a manager of the company. About the 1st of April, 1793, an agreement was made by the company with Mr. Young, for the purchase of so much of his land as was requisite for the canal, amounting to 135 perches. In the same year the canal was dug out through this land. By the Act of 1792, it was declared that if the company should" not within 10 years from the passing of the act, complete the canal, so as to open a sufficient communication from the Schuylkill to the Delaware, it should be lawful for the Legislature to resume the franchises thereby granted. By an Act passed on the 23d of March, 1802, reciting, that unforseen occurrences had pre- vented the completion of the canals within the time limited by law, it was enacted that the act of 1792 should be revived and extended for the sp"ce of 5 years from and after the passing of the Act of 1802, and thence to the end of the next session of the F*4.1 91 General Assembly. By another act passed on the *17th of March, 1806, the Act of 1792 was continued in full force until the 1st of January, 1820. On the 2d of April, 1811, an act was passed, which after reciting that the stockholders of the two companies before-mentioned, had agreed to form a joint stock and interest under the title of "The Union Canal Com- 1836.] OF PENNSYLVANIA. 412 (Union Canal Company v. Young.) pany of Pennsylvania," enacted in the first section, that " all acts and supplements heretofore passed in favor of the Schuylkill and Susquehanna Navigation, and also of the Delaware and Schuylkill Canal Navigation, be and they are hereby repealed, and that the corporate title of the present managers and com- pany of the Schuylkill and Susquehanna Navigation, and of the Delaware and Schuylkill Canal Navigation, shall henceforth cease and be abolished ; and that the corporate style and title of the said corporation, shall be " The Union Canal Company of Pennsylvania ; under which name the said corporation shall have, hold and enjoy all estates, grants, rights, interests and privileges heretofore held and enjoyed by them under their former respective titles," &c. On the 29th of March, 1819, an act sup- plementary to the preceding act was passed, which authorized additional subscriptions to the stock of the Union Canal Com- pany. The 8th section declared that " all right and title to any and every kind of property, real, personal or mixed, which belonged to the late Delaware and Schuylkill and Susquehanna Canal Com- panies, or which is now held by the Union Canal Company, shall be held in common by the old and new subscribers," &c. By the llth section, the company was required to confine its operations and improvements to the completion of the communication be- tween the Schuylkill and the Susquehanna. This action was instituted to December Term, 1833. On the trial the plaintiffs gave in evidence the following bill or account in the hand-writing of Wm. Young, viz. " Delaware and Schuylkill Company, to Wm Young Dr. 1793, 1st April. 135 perches land, Northern Liberties, at <87, 10s. per acre $196 73 Interest until 1st of June, 1798, 60 98 257 71 1798, 16th July. To cash lent, 50 00 $307 71" They also gave in evidence a survey of the canal tract through the land of Young, dated June 25th, 1796, addressed to William Young ; the measurement of a contract for cutting the canal through his land, dated April .26, 1796 ; an account of the Trea- surer *dated Dec. llth, 1799, crediting Young for land, $257 71, and debiting him with certain shares of stock [*413] of the company in full payment of the balance ; a minute of the company dated December 17, 1799, approving the said accounts ; certain bills rendered by Young against the company, from 1795 to 1799 ; a resolution of the company dated May 3d, 1796, 413 SUPREME COURT [March Term, (Union Canal Company v. Young.) " that the contracts for the lands of Messrs. Morris and Young be deemed and taken to have been entered into and concluded at the time the respective contracts for working the same were made ;" the certificate of the ten shares of stock of Wm. Young in the Delaware and Schuylkill Canal, dated August 4th, 1792, with credits for instalments endorsed as paid at different times, from 31st October, 1792, to 22d January, 1800 ; and receipts signed by William Young, and dated 7th of May, 1821, for 10 shares of the Union Canal stock in lieu of his Delaware and Schuylkill Canal stock. They also proved that Mr. Young was present at certain meetings of the board of managers in 1796 and 1800. The defendants then gave in evidence a deed of conveyance from Samuel Miles to Wm. Young, dated 25th of March, 1795, for 8 acres 151 perches, including the premises in question, and the following parol evidence : Frederick Branner testified, that in the year 1793, the Com- pany dug out the Canal in Young's property. He saw them at it. In 1794 they dug east of the Ridge Road. Mr. Young's property was west of the Ridge Road. One Mr. Johnson super- intended. After it was kept as a pasture ground, shut up and nothing done to it. Was so kept in 1794. The fence was never removed away at any time. It was always kept up. They made a garden the family that lived there on the front part. The rest was kept for grazing ground. The canal bottom was pas- tured with the rest. About half was full of water, and the rest the cattle pastured in. The water was a nuisance, and brought fevers. Mr. Young opened a little to let it run off so as not to keep so much there. The people were a good deal unhealthy there with the ague. No body but Mr. Young appeared to be owner of that property as far as I know of. I have lived about a quarter of a mile from it now about twenty-four years. Before that I lived in the city. I knew the property very well before. Been often past twice or three times a day. I had a pasture ground of one John Pemberton just above. Company went east in 1795. I never saw any thing more of them since. Nothing done to it since. Being cross-examined, he said : The digging was three or four feet deep some not so deep and on Mr. Logan's place you could swim a horse. None of it was ten or fifteen feet. The fence I spoke of was round Mr. Young's property. There never was any alteration made in the fence at all. It stood as before. Young r*4141 had, may *be, ten acres it stood round. There were buildings there a stable, house, and printing office. It was a few years after 1794 the printing office was put up. The fence was two or three rods, may be, from the digging in some 1836.] OF PENNSYLVANIA. 414 (Union Canal Company v. Young. ) places, and in some places further. In some a few acres from the digging. The fence was all round, and division fences too some west and east. None of the fences were removed, cross fences or others, before 1794 or 1795, when the last of the digging was done. The garden was on another part than the canal was a few rods off, may be. The cows used to run in the excavation. No other use was made of it. They used to run in it from the time the digging was first made, in 1793. Pegg's run ran across the canal. It began above Young. It was owing to a good deal of rain that the canal was filled. Part of the canal could not be drained. The last I saw of digging was in 1795, except where the buildings are put, the trench is there yet. I mean Fox and Price's houses. Being re-examined he said the people made a gap to go through to dig, and then fenced after but did not pull the fence down at Young's. Don't know of any fence running across the canal since. Thirteenth street now runs across this ground, and the canal on the line of Thirteenth street was filled up. That street is now curbed and paved. Being again cross-examined he said Thirteenth street was put there three or four years ago. Was paved two years ago. Was opened and filled several years since. Jacob Gardner, testified, that he had lived in the district of Spring Garden 33 years last September. He was one of the Commissioners for sixteen years in that district, commencing in 1813. He collected the county taxes for nine years, commencing in 1820. He was assessor in 1821, and helped make the assess- ments six or seven years. He had known this White Hall estate thirty-four or thirty-five years. He knew it as Mr. Young's property ; the whole of it. He never knew there was any divi- sion in it. It was always assessed to the estate of William Young during the time he had anything to do with the assessment and collection of taxes. He thinks Mr. Grigg, the tenant, paid him the taxes. There never was any part of this estate assessed to the Union Canal Company. They never paid any taxes on it. He never collected any taxes from it except the Young people. Mr. Young was landlord of Mr. Grigg. The excavation east of the Ridge Road always remained. We filled the canal ground up east of the Ridge Road when it was occupied by Spring Garden Street. It was curbed and paved by the Commissioners of the District of Spring Garden. I was superintendent four years. I had a great deal of it filled up. The Canal Company offered no resistance, and made no claim. I never collected or assessed the taxes to the Union *Canal Co. on any part of the route of this survey. The Columbia Railroad is located from this end of Pratt's place partly to the bridge, on the canal survey through Pratt's, Williams's, Fisher's, &c. 415 SUPREME COURT {March Term, (Union Canal Company t>. Young.) Being cross-examined : He said, that as the Canal Company had not done what they undertook, we thought it reverted to the owners, and we taxed it to the owners, all except east of Pratt's, where a town plot is laid, and filed liens for taxes, where the owners were unknown. White Hall estate was always assessed as Young's. We took the whole number of acres to William Young, without any allowance for the canal. We had the old as- sessments to go by. We found it had always been assessed to Young, and went by it. The assessment does mention the num- ber of acres. The taxes were $50 or $60 more or less. All the the ground where it was excavated, the owners fronting on it paid the taxes. The assessors did consider they included the excava- tion to the adjoining owners. The assessments were always the same. Mr. Haws, who assessed for 18 years before me, never intimated that the Union Canal Company had any ground to be assessed. He (Mr. Haws) assessed for 18 years. His last year was in 1808. He took sick and I had to finish it for him that year. There is an assessment every year. He spoke of annual assessments. Robert Brooke was the first surveyor of the dis- trict. After his death Joseph S. Siddall, Mr. Ph. M. Price suc- ceeded him, and Joseph Fox is Regulator now with P. M. Price. They have been such seven or eight years. They have reported extensive plans for the district for confirmation.. It is necessary for them to go over the grounds of the district for the purpose. They give public notice of the opening of streets that parties may make objections. It was dug for a canal. That was gener- ally known. The court requires a survey to be actually made on the ground. Peter Hotz swore that he was collector of taxes for the Dis- trict of Spring Garden for 1829, 1830, and 1831. Had known the White Hall estate thirty or forty years. He never knew whose property it was till about seven years ago. He had un- derstood it was assessed to William Young since he was collector. Don't remember about the digging of the canal there. Knows there was one dug there. Mr. Grigg paid me the taxes on the estate. Jacob Gardner called again by plaintiffs said Spring Garden street was opened through this property about four years since. Price and Fox had their office together. Anthony Grigg, being sworn said: I was tenant of the White Hall estate. In 1812 we moved there, and left in 1830. It was rented of William Young. The whole enclosure. We rented of no one else any part of it. I knew of no other claim during that P*41fil ^ me * to * na * P r P er ty f th. e ownership. I paid the -" taxes of that property. There were no taxes paid by any other person than me for any portion of it. The build- 1836.] OF PENNSYLVANIA. 416 (Union Canal Company v. Young.) ing front of the canal was the printing office. We first paid about $35, and afterwards about $60 taxes. In a wet season the bot- tom of the canal had water in it, in a dry it had weeds. It was a dry season to clear it of water. The canal was lower than Pegg's run, and for that reason the water stood in it. It drowned vege- tation, and we supposed it helped to create the intermittents of the neighborhood. Fevers prevailed there very much. The damage was incalculable if it were all owing to that. There were large brick ponds in the neighborhood. (Sometimes we had not a man or a boy to work owing to the fever and ague. The cattle were turned in, and nothing prevented them going in, and they eat the grass on the bank. One fence ran across the canal east of Pegg's run, and divided the property into four or five lots one near where Thirteenth street runs now. The property was always under fence from 1812. Being cross-examined, he said: The fence near 13th street we put up. It was not there before. In a few years after we went, we put it up. At the west end there were 300 feet, and about 150 feet at the east end that were not excavated. This was left in its original state-. The almost only way to get from one part to another was round these ends. We did not undertake to fill up the canal, or make alterations, but deepened the run. Being re-examined, he said: There was one brick yard 300 feet off directly across the Ridge Road. There was never a great deal of water there. There was another a quarter of a mile off. We considered the canal a part of the cause of the sickness, was one reason why we attempted to drain it. Again cross-examined : I always thought it was Mr. Young's property. I thought the fever was more after damming the Schuylkill. It was the next season after damming that the hands were so bad. I did not know that the Canal Company had any claim at all. We made a fence along the bank of the canal about 200 feet from the stable to just east of Pegg's run, and then across it. Part of it on the bank of the canal. We put this up when we put up the other. Thomas Nesbit, sworn, said : I lived on this place, White Hall, near 8 years. I went apprentice with Mr. Young in 1798. That property was enclosed during all the time I knew it. It was at that time in the occupation of Mr. Young. He had tenants on it. The whole was enclosed and used so far as they could make any use of it. The bottom was useless so far as I know. There was a fence across it, dividing that portion between the printing office and Ridge Road, about 100 yards from the Ridge Road. There was nothing done by the Canal Company during the time I knew it. There was *no claim of property set up by them that I ever heard of. The excavation stopped 417 SUPREME COURT [March Term, (Union Canal Company . Young. ) from 100 to 150 feet from the west end, and from the east 90 or 100 feet. There was but one fence across the canal. It was there when I went there. There was a small portion of the canal bed cut off by the fence, was in corn, put there by the tenant. It was the bed of the canal and east of the fence. Once or twice there was corn in it. The tenant's name was Adam Tice. He was old then, and not now to be found. It was in 1802 or 1803 that A. Tice raised one or two crops of corn. The water in the bottom was supposed to be prejudicial in my time. There was sickness experienced there then by the people. The canal part was used for grazing with the rest of the place as far as it could be. A. Grigg, again called by defendants, said: My father moved to White Hall estate in 1808, and I occasionally visited him there. He rented from Wm. Young. The property continued enclosed during that time to 1812. William W. Woodward, being sworn, deposed : I cannot say positively how long I have known it, (White Hall) except in 1798 I was sick there. I was apprentice with W. Young in 1787. I remember seeing the canal dug round the printing office. In 1802 I was likewise there. And since I have seen it, I had a great deal of printing done there. One (book) I was looking at the other day, in 1806. That property has always been enclosed since I have been acquainted with it. I have taken a walk fre- quently round the lot. I never doubted any person being the owner but Mr. Young. I never heard of any other. The print- ing office was a strong building, and built for some strong pur- pose, or it would not have held as much as it did. Being cross-examined, he said : To the best of my recollection every part of the ground was enclosed. One evidence was, that in 1798 my wife said she had to climb the fence. It was a nar- row building. Faced on the canal. The defendant further gave in evidence certain deeds from Wm. W. Young and John M'Allister, jun., trustees named in the will of William Young, to Joseph Fox and Philip M. Price, in fee, dated 12th "of June, 1833, for certain lots of ground contain- ing parts of the strip of land claimed in this suit : Resolutions of the Company relating in 1829, 30, to the use of the bed of the Canal by the Columbia Railroad ; other resolutions passed in 1815, 1816, 1834, 1835, relative to the disposal of the interest of the Company in the ground intended for the canal. A letter dated Philadelphia, August 27, 1814, from the president of the Union Canal Co. to Wm. Young, requesting him in conformity with a resolution of the Co. to have a deed prepared for the part r*41 81 ^ n * s l an( ^> through which the canal was *dug, and for -" which he received credit on the books of the Company 1836.] OF PENNSYLVANIA. 418 (Union Canal Company v. Young.) in December, 1799. It was alleged that no answer was returned to this letter. Evidence was also given to show that the defend- ants liad offered to refund the principal and interest of the dama- ges allowed to Mr. Young, upon receiving a release from the plaintiffs. The plaintiffs further gave in evidence a statement of- the dam- ages paid on the route from the Delaware to the Schuylkill, viz. by agreement with owners $12387 41. By assessment of jury $3108 83.' Two mortgages, each dated 12th June, 1833, partly on the property in question, one from Joseph Fox to John M'Allister for $6000, and the other from Philip M. Price to the same for $7000. They also proved that written notice was given to the defendants, Fox and Price of the title of the plaintiffs, on the 28th of June, 1833. The testimony on both sides being closed, the defendants filed an obligation to refund to the plaintiffs, in case of a verdict and judgment in their favor, the principal and interest of the dam- ages allowed William Young ; provided the Court should be of opinion that they were equitably bound to refund the same. The following specifications of the points on which the defend- ants relied were filed by their attorneys. "1. The plaintiffs have no right of entry into the premises in question ; having had no possession thereof within twenty-one years before the commencement of this action. 2. The plaintiffs have no right of entry into the premises ; because the defendants and their ancestors have had the ex- clusive, absolute and adverse possession of the premises for twenty-one years and upwards before the commencement of the present suit. 3. The defendants are protected by the statute of limitations ; because they enclosed round the entire tract in question, culti- vated, grazed, and fenced along and across the same, upwards of twenty-one years before the commencement of this action, whereby the plaintiffs were ousted, and the defendants have ever since so maintained their possession. 4. The plaintiffs lost their right of entry, if any they ever had, by omitting to pay any part of the taxes assessed on the premises in question for twenty-one years, and suffering the defendants to pay the whole taxes on the same for twenty-one years and up- wards, before this action was begun, whereby it should have been left to the jury to presume that the plaintiffs had been ousted and barred by the statute of limitations. 5. The plaintiffs have no right of entry into the premises in question ; because they have not shown that they intend to occupy the same " for the purpose of making, digging, and perfecting" a canal between the river Delaware and Schuylkill, the only pur- TOL. i. 28 418 SUPREME COURT [March Term, (Union Canal Company t>. Young. ) pose for which the Delaware and Schuylkill Canal Company were authorized by their charter to take or acquire the said property. f*41Q1 *^' ^ ie Pontiffs have no right of entry into said pre- mises ; because they have abandoned the purpose of mak- ing such canal, by neglect of all work upon it for forty years, by never having acquired a continuous right to occupy the soil from one river to the other, by releasing to the adjoining owners rights that they may have acquired, by celinquishment of the route to the Commonwealth for a rail-way, and the occupation of other portions of it by public streets. 7. The plaintiffs have no right of entry into said premises, be- cause the State has, by Supplemental acts of Assembly, accepted by the plaintiffs, prohibited them from making the canal from the Schuylkill to the Delaware. 8. The plaintiffs have no right of entry into said premises, un- accompanied by a satisfactory demonstration of their power and intention to make the said canal ; because they could not con- stitutionally take the property of a citizen against his consent, except for the public use authorized by their charter; and the agreement of parties to accept damages, was not intended to con- fer any greater interest than the company could acquire by an adversary inquisition and judgment of the Court thereon. 9. That the only title that the Delaware and Schuylkill Canal Company could acquire consistently with their charter, whether by agreement with the parties, or by inquisition and judgment of the Court, was a base, qualified and determinable fee, depending upon the public use of the soil as aforesaid, and not a fee simple, "generally, absolutely and simply." 10. That by the agreement between the Delaware and Schuyl- kill Canal Company and William Young, the parties did not in- tend a purchase and sale of the title to the land, for any estate or transferable interest therein, but that the former should merely acquire an easement, they paying " damages as settled for lands occupied" for that purpose; from which easement the premises are now discharged by abandonment, and the acts aforesaid relin- quishing the franchise ; and if an easement, no ejectment will lie therefor. 11. That whatever may have been meant by the parties as to the nature of the claim, title or interest to be acquired by the Delaware and Schuylkill Canal Company, the said Company never did acquire a legal title in the premises, but merely an executory contract or equitable interest, liable to be repelled by any counter- vailing equity. 12. That the land having cost William Young five hundred and sixty dollars an acre, and the Company having allowed him in damages to the credit of his stock, but two hundred and thirty- 1836.] OF PENNSYLVANIA. 419 (Union Canal Company t>. Young.) three dollars and thirty-three cents per acre, the larger considera- tion to be paid to Wm. Young, were the stipulated benefits of the canal to his property, which the company have failed to make according to their charter and contract with Wm. Young. 13. That any equity the plaintiffs could derive from the pay- ment of the damages has been fully neutralized by the damage sustained *by the digging of the soil, and injury thereby r+iorn to pasturage and health ; and if that be not sufficient, L by the agreement of record by the defendants, to refund the principal and interest of said damages, if the Court shall be of opinion that any such obligation equitably rests on the defend- ants. 14. The plaintiffs have slept too long upon their rights, if any they had, and equity will not aid their stale claim equity adopts the statute of limitations. 15. Circumstances having greatly changed in respect to internal improvements, the abilities and purposes of the plaintiffs, and value of property, so that neither party could now derive from the exe- cution of the contract the expected benefits, it would be inequitable to enforce the specific performance of it. 16. After the lapse of time that has taken place, under the cir- cumstances in evidence in this case, a release of all claim from the Company will be presumed. 17. The Delaware and Schuylkill Canal Company was dis- solved in 1811, when the Union Canal Company was formed ; and thereby all title to the premises in question, if any they had, reverted to William Young, and was never acquired by the present plaintiffs. 18. The defendants, Fox and Price, are record purchasers of the premises occupied by them, without notice of plaintiff's title, and unaffected by it, whatever it may be. 19. Because the evidence is insufficient to support the said ver- dict, and because it is contrary to equity and law." Mr. E. K. Price, for the defendants. 1. The plaintiffs never had legal possession of the land. The digging of the canal in 1793 was a trespass. If any agreement was made, it was not until 1796. Mr. Young remained in pos- session ; and his possession was distinct, notorious and adverse. The evidence shows that in 1798, a fence was run across the canal, and that inr 1802 and 1803, corn was raised in the bed of the canal. The property was let out by Young, and every act of ownership exercised over it, precisely as in respect to the remain- der of his land. In Jones v. Porter, (3 Penn. Rep. 135,) Judge Huston says, " a man may enter on and continue in possession of land which he believes or knows is claimed by another, but noto- 420 SUPREME COURT [March Term, (Union Canal Company v. Young.) riously claiming for himself in opposition to that other ; and 21 years possession will protect him." Here we say that the pos- session was adverse from 1796 at least, when he ought to have executed a deed. This was the doctrine of the Court in Pipher v. Lodge, (4 Serg. & R. 569 ; s. c. 16 Serg. & R. 214, 224 ;) Walker v. Walker, (16 Serg & R. 379, 374;) Frederick v. aray (10 Serg. & R. 182.) In Roger v. Bcnlow, (10 Serg. & R. 306,) it is said that if one suffer his adversary, who has designated his claim by marks on the ground, to pay the taxes for that part for f* J.91 1 ^ years, he *may be presumed to be ousted pro tanto. Here it was proved that taxes have been uniformly paid by Mr. Young and those claiming under him, and that the plain- tiffs have paid nothing. Read v. Groodyear, (17 Serg. & R. 350; ) Caul v. Spring, (2 Watts, 396.) 2. The plaintiffs have no right to recover unless they show that the defendant's land is wanted for the purpose of a canal. A corporation has no right to hold lands except for the purposes of its incorporation. There is no act of assembly authorizing these plaintiffs to hold land, except such as may be absolutely necessary for the canal. It is the public good, and that alone, that can justify the taking and keeping of lands by a corpora- tion. Constitution of Pennsylvania, Art. 10 ; Declaration of Rights, Sec. 1 ; 2 Kent's Comm. 229 ; Act of 6th April, 1833 ; Angel on Corporations, 80 ; Dwarras on Statutes, 750. The plaintiffs took only a qualified or base fee. 1 Preston on Estates, 22, 42 ; Wellington v. Wellington, (1 Blackst. Rep. 645.) This was a mere easement and not an estate in the. land. Ammant v. The Turnpike Company, (13 Serg. & R. 210;) Schuylkill Navigation Company v. Decker, (2 Watts, 343 ;) Turnpike v. Franklin Co., (6 Serg. & R. 233 ;) 3 Kent's Comm. 348 ; 2 Yeates, 331 ; 4 Day, 330. 3. This is a stale claim which equity will not aid. After a lapse of time like this, specific performance would not be decreed by a Court of Chancery. In this case things are greatly changed. Streets have been opened through this property, and it has greatly increased in value. If the plaintiffs could be compelled to open the canal, there might be some compensation for the injury done to the lots ; but they are forbidden by law. Pratt v. Carroll, (8 Cranch, 471 ;) Brashears v. Grratz, (6 Wheat, 528 ;) 1 Maddock Chan. 422 ; 3 John. Ch. Cas. 60 ; Peebles v. Reading, (8 Serg. & R. 483 ;) Elmendorf v. Taylor, (10 Wheat, 152 ;) Eakin v. Raub, (12 Serg. & R. 375 ;) Pratt v. Fattier, (6 Peters Rep. 416 ;) Walker v. Walker, (16 Serg. & R. 384 ;) Kingston v. Leslie, (10 Serg. & R. 289.) 4. The Delaware and Schuylkill Canal Company was dis- solved in 1811, and a new corporation was established for dis- 1836.] OF PENNSYLVANIA. 421 (Union Canal Company v'. Young. ) tinct objects. It is settled that upon the dissolution of a corpor- ation all its real estate remaining, reverts to the grantor and his heirs. Angel on Corporations, 105, 513 ; and the cases there cited. 2 Kyd. on Corp. 516; 2 Kent's Com. 246. [SERGEANT, J. Is there any case of a sale to a corporation where the pur- chase money has been paid, in which this doctrine has been held ?] The law is laid down generally ; and there is no exception of that case. The rule as stated was recognized by the present Chief Justice in The Turnpike Company v. Franklin County, (6 Serg. & R. 234.) 5. At all events, the defendants, Fox and Price, are entitled to the judgment of the Court, as bona fide purchasers for a valuable consideration without notice. They saw the progress of public improvement obliterating almost every mark of this canal, and no steps *taken by the company to keep up or make known [-#4001 their claim. There was no record notice whatever, L either by registering a deed, or by writ of ad quod damnum. If the plaintiffs succeed against these defendants it will be in con- travention of the recording acts, (1 Sm. Laws, 422, &c.) The first notice they received was on the 26th of June, 1833,, after they had commenced building and made contracts, for which they were liable. There is nothing to affect either of them Avith pre- vious notice. Sugden on Vendors, 532, 3 ; Hyne v. Dods, (2 Atkyns, %lbf).Billington v. Welsh, (5 Binn. 131 ;) Peebles v. Reading, (8 Serg. & R. 496 ;) Scott v. Q-alloway, (14 Serg. & R. 333;) Willis on Trustees, 65. Mr. Charles Ingersoll and Mr. Wm. M. Meredith for the plaintiffs, were requested by the Court to confine themselves to the subjects of the statute of limitations and the notice to Fox and Price. 1. The statute of limitations begins to run only from the time of a notoriously adverse possession. Hawk v. Senseman, (6 Serg. & R. 21 ;) Mercer v. Watson, (2 Watts, 238.) When did that commence here ? The plaintiffs took all the possession that the subject admitted of, that is by excavating the bed of the canal ; and continued that possession until a very recent period. There is no evidence whatever of an ouster. On the contrary it appears that the company have sold their land in several instances. We find also that Mr. Young recognized the title of the plaintiff in several instances; from 1798, when he made the memorandum in writing, down to 1821, when he took 10 shares of stock in the present company. The payment of taxes, in the case of wild land has been considered as evidence of possession ; but the presumption has never been extended beyond that case. Here in fact it does not appear that Mr. Young paid taxes for 422 SUPREME COURT [March Term, (Union Canal Company . Young.) the land in question, since he paid for eight acres only ; and as to the argument derived from the non-payment of any taxes by the company, it was held in The Schuylkill Bridge Company v. Frailey, (13 S. fa R. 422,) that bridges and other public works, to which the right of demanding toll is annexed, are not taxable. As to the letting by Mr. Young, it is to be presumed that he in- tended to demise only that part of his land which he had not sold to the plaintiffs. Mr.- Young was both a trustee and tenant in common. 16 Ves. 390 ; Wallace v. Duffield, (2 Serg. & R. 527 ;) Rush v. Barr, (1 Watts, 120 ;) M'Martin v. Bell, (2 Peters Rep. 120;) Johnston v. Humphreys, (14 Serg. & R. 394;) 7 Johns. C. R. 90; Blanchard on Lim. 69; Irvine v. Turnpike Company, (2 Penn. Rep. 466.) 2. It is not very material whether Fox and Price are to be considered purchasers without notice, or otherwise; since they have not paid the purchase-money ; and if the plaintiff succeed, it is settled by our law that they will have a sufficient defence on r*4931 their mortgages. *But it is impossible to say, that they J have not had- notice. The possession by the company was such as to strike the eye at once, and not to be mistaken. The evidence shows that these defendants were surveyors of the district ; and of course they must be supposed to know the state of things. In Billington v. Wehh, a notorious possession was said to be sufficient. Krider v. Lafferty, (ante, p. 303,) shows that what ought to put a purchaser on inquiry will affect him. Besides actual notice was given to them in time to prevent any expenditure of money ; and the circumstance of their giving mort- gages for the whole purchase-money shows that they were aware of the defect in the title. Mr. Broom in reply. This case differs from almost all others mentioned in the books ; since it is an attempt to compel specific performance for a purpose entirely different from that originally contemplated by the parties. No deed has been executed ; and if the contract is to be consum- mated, it ought to be upon the terms of completing the Canal. The evidence shows that Mr. Young did not acquire the legal title to this property until 1795. No valid agreement could therefore have been made in 1793, as supposed on the other side. From December 1799, when the purchase-money is said to have been paid, the possession was adverse. The Company about that time abandoned the intention of cutting a canal. The possession supposed on the other side, was certainly far from such as the law contemplates. Every thing showed that if there had been an attempt at a canal, it was abandoned. The fences of Mr. Young were like those of the neighborhood, and implied continuity of 1836.] OF PENNSYLVANIA. 423 (Union Canal Company v. Young.) possession. The payment of taxes is evidence of ownership every where. Besides, it appears that streets were opened through this land, and the plaintiifs never interferred or claimed damages. If the plaintiffs intend to keep up a claim to the property, they should have given notice by ejectment, or otherwise, at an earlier period. In 1814, at least, they knew that the claim would he contested. The following cases were cited or commented upon, Smith v. Pat- ton, (I Serg. & R. 80 ;) Jones v. Porter, (3 Penn. Rep. 135 ;) Piplier v. Lodge, (16 Serg. & R. 224, 4 Serg. & R. .569 ;) Car- others v. Dunning, (3 Serg. & R. 379 ;) Frederick v. Gt-ray, (10 Serg. & R. 188 ;) Pennock v. Freeman, (1 Watts, 408 ;) Caul v. Spring, (2 Watts, 396 ;) Smith v. Patton, (1 Serg. & R. 84 ;) 1 Vernon, 229, 271 ; 1 Ves. 218. The opinion of the Court was delivered by ROGERS, J. This was an action of ejectment to recover 135 perches of land. On the trial of the cause, by consent of parties a verdict was taken for the plaintiffs, subject to the opinion of the Court upon the whole case. *The defendants contend r*4?41 1. That no estate passed to the plaintiffs, which will L entitle them to recover in this action. 2. That if any estate passed, the plaintiffs have lost their right to recover. 3. That the defendants may rescind the contract. 4. That for part of the land, Fox and Price, two of the defend- ants, are bona fide purchasers, without notice. By the second section of the act of the 29th September, 1791, the Company have the power of purchasing, taking and holding, to them, their successors or assigns, in fee simple, or for a lesser estate, all such lands, tenements, and hereditaments, as shall be necessary for the prosecution of their work. There is a like provision in the act of the 10th April, 1796. In the 6th section of the first act, it is provided, " That it may be lawful for the President and Managers, to contract and agree with the owners of the lands and tenements, for the purchase of so much thereof as shall be necessary for the purpose of making, digging, and perfecting the canal, and of erecting and establishing, all the necessary locks, works and devices," &c. if they can agree with such owners ; but in case of disagreement, &c., the act provides for the issuing a writ of ad quod damnum, to assess the damages done to the owners of such lands and tenements, and on the re- turn of the inquest directs the Court to give judgment, and de- clares, that the Company shall be entitled to have and to hold, to them and their successors and assigns forever, all and every the lands and tenements, &c. in the said inquisition described, as 424 SUPREME COURT [March Term, (Union Canal Company r>. Young. ) fully and effectually as if the same had been granted to them by the respective owners thereof. It is immaterial in this controversy, whether the contract of sale between Mr. Young and the Company was entered into on the 1st of April, 1792, or at a later period. The effect on the title is precisely the same. I must, however, be permitted to observe, that the evidence shows, most clearly, a parol contract of the 1st of April, 1792, of which a memorandum, in writing, was made in the hand writing of William Young, some time in 1798. The contract was executed by the entry of the Company on the land, excavating it, preparing it for the uses and purpose^ of a canal, and by payments of the purchase-money. The resolution of the 3d May, 1796, shows that the contract was made at or about that period of time. Be this as it may, the contract was made under the authority of the acts cited, and was followed by the Company taking possession, as before stated. The defendants contend, that under this contract the plaintiffs acquired an easement or right of way only, and that for an injury to such an interest, eject- ment will not lie ; and it is true, if it be an easement, ejectment r*4.9^1 ^ s n0 ^ ^ ne P r P er remedy, as ejectment *will not lie for an incorporeal hereditament. 2 Yeates, 331 ; 4 Day's R. 330. It will not admit of doubt, that the Company might acquire, either by contract, or on a writ of ad qnod damnum, a right to the soil, either in fee simple or for any less estate. In this, the acts are express. When a contract is made for a purchase, for the use of the canal, as well as for the use of an individual, the presumption is, as against the grantor or bargainer, that the greater estate was intended to pass. In the note or memoran- dum of Mr. Young, the quantity of the estate is not mentioned ; but a sale of lands on an agreement to sell, imports a fee. Brooke, Abridgment, title Contract, Bargain and Sale, folio 169. In the case of a corporation aggregate, if a freehold passes, it must be a fee or an estate equivalent to it ; for in a grant of land to a corporation aggregate, the word successors is not necessary, though usually inserted ; for albeit, such simple grant be only an estate for life, yet, as a corporation never dies, such estate for life is perpetual, or equivalent to a fee simple, and therefore the law allows it to be one. (2 Black. C. 109.) The bill of Mr. Young has nothing on its face which indicates that he sold to the company the right of way, only ; and if that had been his inten- tion, it should have been so expressed in the instrument itself. Nor is the inference, which is drawn from the silence of Mr. Young, to be rebutted by calculations founded on the value of the land per acre, based on the price given for the whole tract, and of course, including in the estimate the improvements which 1836.] OF PENNSYLVANIA. 425 (Union Canal Company v. Young.) were on the property at the time of his purchase. Calculations of this kind would be too uncertain ; and it is impossible for us to say for what reason the vendor, (supposing the fact to be as is alleged), chose to part with his property to the Company for less than its real value. On the argument of this part of the case, reliance Avas had on the resolution of the 30th June, 1796, which directs Mr. Govett to give credit to Mr. Young for the amount of his damages, as settled, for the land occupied by the tract of the canal. The latter part of the resolution is nothing more than a description of the land for which the damages are directed to be paid; and as to the word " damages," the Company have used the term which is used in the 6th section of the act of incorpora- tion ; the money which is given as a compensation to the owner, is given as his damages ; and this as well where the Company ac- quire a right to a fee simple, as any less estate. But if a fee simple did pass, the defendants contend that the plaintiffs have lost the right of recovery. Under this head I shall consider 1. The statute of limitations. 2. That equity will not lend its aid to enforce the plaintiff's claim. 3. That there is a condition annexed to the contract, which has not been performed. 4. That the Company was dissolved in 1811. *After what has been already said, we must take it r^io^-j that the plaintiffs have a fee simple or an estate equiva- lent thereto in the property in controversy. The Company had taken possession of the locus in quo, by excavating and embank- ing it, and filling up for the purposes of a canal. They had the only possession, which they were entitled to ; for it may well be doubted, whether they would have been at liberty to have taken an exclusive possession of the property, until the passage of the act of the 29th March, 1810, which made it the duty of the Com- pany to confine its operations to the completion of the commumni- cation between the Tulpehocken, Quittapahilla and Swatara Creek. The Company have, by these acts, acquired a concurrent, if not an exclusive possession. It is therefore incumbent on the defend- ants to show, either an abandonment of the right, or an ouster of the possession so acquired and held by the Company, and a hostile and adverse holding by the defendants. As to the allegation of an abandonment of right, there is scarcely a pretence, particularly as the plaintiffs had taken pos- session, and held the property, until 1819, for the purpose of complying with the acts, under which they were incorporated ; for it must be observed, that until the passage of the act of 1819, the duty and right to make the canal, remained as it was under 426 SUPREME COURT [March Term, (Union Canal Company v. Young. ) the act of 1792 ; and more especially will not the doctrine of abandonment apply, when the whole amount of the purchase money has heen paid ? The Company, so far from relinquishing the right of property, asserted it, not only as to this, but to every other parcel of land held under similar titles. Indeed, I am not aware that their title has been the subject of dispute, except in this instance.' The entry of the owner of land is barred only by an actual, continued, visible, notorious, distinct and hostile possession, for twenty-one years. It is not necessary to entitle him to recover in ejectment, that he should prove, that he, or those under whom he claims, have been in possession within twenty-one years, before bringing suit. Hawke v. Senseman, (6 Serg. & Rawle, 21 ;) Mercer v. Watson, (1 Watts, 330 ;) Rung v. Shoneberger, (2 Watts, 27.) The title draws to it the possession ; and when the possession is concurrent, no title can be acquired by either, on the ground of an adverse holding. The defendants claim the possession to have been adverse and hostile, because Mr. Young paid the taxes for the property, leased the land, without an exception of the part owned by the company ; because the tenant raised a crop of corn for one or two years in the bed of the canal ; and because a fence was removed, and a fence run across the line of the canal. I see nothing in any one, or all the circumstances adverted to, which brings this case within the rule so distinctly laid down in Hawke v. Senseman, and the other cases cited. Mr. Young continued to hold and enjoy the land in the same manner as he had been ac- customed to do, at the time when the company were confessedly P*4971 ^ e owners f the land. There *was no open, visible and notorious change in his conduct, which could put the company on their guard, and make it, in proper time, their duty to assert their right. On the contrary, from any act of his, they could not have the slightest suspicion, that it was his intention to dispute their right. So far from this, he acknowledged their title by a receipt of the 7th May, 1821, for ten shares of the Union Canal stock, in lieu of his Delaware and Schuylkill stock. We can- not in justice to Mr. Young, suppose that at that time he had any idea that he held the possession by a title adverse to the com- pany. It admits of some doubt, whether the whole tract without allowance, was assessed to William Young, but be this as it may, the payment of the taxes under the circumstances of this case, (supposing the interest of company liable to taxation,) furnished no evidence of an adverse holding. To give title by the statute of limitations, the possession must be continued, liaising a crop of corn for a year or two, is not sufficient to give title, nor will the fact that a fence was run across the line of the canal, have 1836.] OF PENNSYLVANIA. 427 (Union Canal Company . Young.) that effect. In conclusion on this part of the case, I will observe, that the rule in this state is, that when there is a given state of facts, either admitted or distinctly proved, whether the possession is adverse, is a question of law ; and it would be error in such a case to submit the question of title, to be determined by the jury. Rung v. Shoneberyer, (2 Watts, 27 ;) Star v. Bradford, (2 Penn. Rep. 384.)* It is suggested, that this is an equitable action, and that it is a principle in a Court of Chancery, that he who asks equity, must do equity. The principle, which cannot be disputed, applies in its full force to an executory contract, when it is necessary to invoke the aid of the Court. Chancery leaves the party to his remedy at law, unless he complies with the equity principles, which govern the decision of the Court. I am not aware that the same strictness is applied to the case of a contract executed by delivery of possession, and payment of the purchase money ; and in this particular, the cases cited differ from this case. There is a discretion undoubtedly vested in a Court of Chancery, but this is not an arbitrary discretion, but is governed by certain fixed and well denned rules. In order to claim the benefit of the* rules, it is necessary for the defendants to show that they are entitled to equitable relief ; and this must depend upon the con- struction of the contract. The equity on which the defendants rely, is, that the property was sold by William Young, on the condition of making the canal, which condition has not and cannot be performed. They contend that the plaintiff acquired but a base or qualified fee ; and if it be so, it is a fiat bar to the plain- tiff's action. A qualified, base or determinable fee is an interest which may continue forever ; but the estate is liable to be determined by some act or event circumscribing its continuance or extent. The in- stances which are usually given to illustrate the species of estate, are a limitation *to a man and his heirs so long as A. r* 4.00-1 shall have heirs of his body ; or to a man and his heirs, *- tenants of the manor of Dale, or till the marriage of B. ; or so long as St. Paul's Church shall stand, or a tree shall stand. In these and similar cases, the estate will descend to the heirs, but continue no longer than the period mentioned in the respective limitations, or when the qualifications annexed to it are at an end. If the owner of a determinable fee convey in fee, the de- terminable quality of the estate follows the transfer. Nemo potest plus juris in alienum transferre quam ipse habet. The general policy of this country does not encourage restraints upon the *See 4 Wharton, 300; 8 Watts, 439; 9 Id. 112; 10 Id. 141; 3 Casey, 510; 7 Id. 126; 10 Id. 268, 308; 1 Wright, 118, 430; 4 Id. 500; 6 P. P. Smith) 152. 428 SUPREME COURT [March Term, (Union Canal Company v. Young.) power of alienation of land. A qualified, base or determinable fee is created by deed, by will, or by some otber instrument of writing in express terms, and cannot be implied by law. The instrument which creates the estate shows at the same time its limitations. It is part and parcel of the title, and hence there is no injustice in the purchaser taking the estate with the determi- nable quality annexed to it; but here there is nothing in the agreement which qualifies the nature of the estate. It is an absolute sale of the fee simple without any restraint whatever ; and it would be wrong that the vendee's title should rest partly in writing and partly in parol. If Mr. Young intended to sell a base fee, determinable when the canal ceased to be used, it should have been so expressed in the written evidence of the contract. It would be unjust that the law should imply this as a condition annexed to the agreement. The act of incorporation, as has been before stated, authorizes the company to purchase an absolute right of property in the soil, either in fee simple or for a less estate ; and in estimating the price the owner has a right to demand its outside value, without any regard to any supposed advantage, the improvement may be to any other property which he may possess. The same rule governs the jury in estimating the damages to the owner on the writ of ad quod damnum. In this the act differs materially from the recent acts of the Legislature, which direct that due regard shall be paid to the advantages which the improvement may be to the owner. In this contract it is fair to suppose that all these considerations were duly weighed, and that Mr. Young took his chance of a change of location, or any change of inter- est, either by the Legislature or the Companv ; if so, he has no more right to complain, when he has received the estimated value of his property than any other citizen of the Commonwealth. In The Turnpike Company v. Irvin (2 Penn. Rep. 466,) it was decided that the benefit which results to individual property, by the incorporation of a company and location of a public road, does not in contemplation of law enter into the consideration of the contract of subscription ; and such subscriptions are neces- sarily subject to the power of the Legislature, to change the location of the road, when the contrary is not expressly stipulated. The owner has no assurance of any benefit which may arise from f*42Ql **^ e i n t cn( l c d improvements, unless he chooses to make that a part of the contract. He depends altogether upon his calculation of chances. This may have operated upon the mind of Mr. Young. It is most likely he supposed the canal would greatly enhance the value of the remainder of his pro- perty. But this cannot be relied on as a circumstance to in- 1836.] OF PENNSYLVANIA. 429 (Union Canal Company v. Young. ) fluence the construction of the contract. A person may pur- chase a piece of property from a view of erecting a factory, or of engaging in some business which the vendor may suppose will be highly advantageous to the neighbors, and particularly to himself. This may be his motive for making the sale, and may have had an influence on the price, yet, unless it be made a part of the contract, the law will not annex a tacit condition to the sale, that it shall be applied exclusively to the purposes for which it was originally intended. Nor would a Court of Chancery interfere, even when the contract was executory, on an allegation that the vendee intended to apply it to a different purpose, unless there was fraud in the vendee. It cannot be made to form part of the consideration of the contract, unless so expressed in the agreement ; . for this would be confounding, as is said in the Turnpike Company v. Irvine, the consideration of the contract, with the motive, which induced the parties to enter into it. Want- of faith on the part of the company is not alleged. The alteration in the original plan has arisen from necessity and not from choice. But aside of those general principles, I cannot see what right Mr. Young and those who claim under him, have to complain. By the act of the 29th September, 1791, the legislature incor- porated the President, Managers and Co. of the Schuylkill and Susquehanna navigation, for opening a canal and lock navigation between the rivers Schuylkill and Susquehanna. And by the act of the 10th April, 1792, they incorporated the President, Mana- gers and Company of the Delaware and Schuylkill navigation for opening a canal and water communication between the rivers Delaware and Schuylkill. On the 2d of April, 1811, the legis- lature, at the request of an association of a number of the stock- holders of the two companies mentioned, who represented that they had formed a joint stock, and interest under the title of the Union Canal Company of Pennsylvania, repealed all the acts before passed in favor of the Schuylkill and Susquehanna navi- gation, and of the Delaware and Schuylkill navigation. They enacted that the corporate title of said corporation should cease and be abolished, and that the corporate, style and title of the said company should be the Union Canal Company of Pennsyl- vania, " under which name the said company shall have, hold, and enjoy, all estates, grants, rights, interests and privileges hereto- fore held and enjoyed by them under their respective titles" The 5th section directs the president to call a meeting of the stockholders, upon notice given ; and upon an agreement of a majority of the stockholders, certified to the Governor, it is made his duty *by proclamation, to declare the law in full r*iqn-i force and effect. It further provides, that if any of the *- 430 SUPREME COURT [March Term, (Union Canal Company v. Young.) stockholders of said company shall neglect or refuse to deliver their certificates of stock, in either of the said companies, and accept stock in the Union Canal Company of Pennsylvania, they may bring suit, &c. to recover a just compensation ; and their interest in said company shall thereafter cease. In March, 1815, they passed an act to authorize a company to make a local navi- gation in the river Schuylkill. On the 29th of March, 1819, the legislature passed the act supplementary to the act, entitled " An Act to incorporate the Union Canal Company of Pennsylvania." The llth section makes it the duty of the company to confine its operations and improvements to the completion of the communi- cation between the Tulpehocken, Quittapahilla, and Swatara creek. In the act of the 26th March, 1821, the legislature guaranteed the interest on the stock of new subscribers, author- ized by the act, for 25 years. And on the 7th of May, 1821, William Young received 10 shares of the Union Canal stock, in lieu of his Delaware and Schuylkill stock. This short reference to the various legislative acts, shows, that up to the period of the passage of the act o*" 1819, the rights and duties of the company remained the same as under the original acts of incorporation. The Legislature having incorporated a company for making a slack water navigation in the Schuylkill, and by this means secured a water communication with the inte- rior, thought proper to relieve the Union Canal Company from making the eastern section of the canal. But this by no means impaired their right to- the property which had been vested in them by the act of 1811. The duty of completing the canal was a public duty, of the violation of which William Young had no more right to complain than any other citizen, and over which the Legislature had a complete and absolute constitutional juris- diction. They had the exclusive right to judge of the expe- diency of exempting the company from the necessity of finishing what they had so unsuccessfully begun ; and of the policy of this course there can be now but one opinion. But what right have the representatives of William Young to complain. The legis- lature reserved to him the right to compensation, for his interest in the Delaware and Schuylfall Company, but instead of availing himself of it, with a full knowledge of all the legislative enact- ments, in favor of the Company, and a certainty that the work would be completed, he on the 7th of May, accepted the stock in the Union Canal Company, and surrendered his certificates of stock in the Delaware and Schuylkill Company. He acquiesces in the transfer of the property to the Company ; for it will not do for him to avail himself of the advantages of the change, with- out at the same time submitting to any inconvenience or loss which may attend the substitution of the one for the other. 1836.] OF PENNSYLVANIA. 430 (Union Canal Company v. Young.) I have looked carefully through the^icts which relate to these *companies, but cannot perceive, that at any time there r*4.qi -\ was even a suspension of the rights and duties of the L Company. They have always stood in full force. The two first companies were merged in the Union Canal Company, and at the same time, the right to all the estate was vested in the latter Company, in the most full and ample manner. There has been no change which can affect the right to any estate which has been vested in them. It follows from what has been already said, that this is not a case where either party is at liberty to rescind the contract, particularly after the great change which had taken place in the circumstances of the parties, the increased value of real property, in that vicinity, and the express recognition and adoption of the contract by Mr. Young in 1821. Until the eject- ment was brought, there was no offer to rescind the contract ; and the stipulation which has been filed, cannot be permitted now to vary the rights of the parties. One other question remains, Are Price and Fox bona fide pur- chasers without notice ? In the view we have taken of this cause, it is unnecessary to determine whether the possession of the Company, and the various circumstances disclosed in the evidence, were sufficient notice to the purchasers, to put them on inquiry, as to the nature and extent of the interest which the Company had in the prop- erty. The defence, amounts in equity to a plea in bar, alleging that the defendants claim under a purchaser for a valuable con- sideration, without notice of the plaintiffs' title. The principle of this plea, as Lord Eldon observes, in Wallwyn v. Lee, 9 Vesey 24 ; and Justice Spencer, in 18 Johns. 562, is, " I have honestly and bona fide paid for this estate, in order to make myself the owner of it ; and you shall have no information from me, as to the per- fection or imperfection of my title, until you deliver me from the peril, in which you state I have placed myself, in the article of purchasing bona fide ." To the validity of such a plea, a number of particulars are absolutely essential, all of which are enumer- ated in Sugd. -553; and in 4 Desaussure, R. 280. The plea must distinctly aver that the consideration money mentioned in the deed, was bona fide and truly paid, independently of the re- cital of the purchase in the deed ; for if the money be not paid, the plea will be overruled, or the purchaser is entitled to relief against the payment. A consideration secured to be paid, is not sufficient. It seems clear from the authorities, that such a plea will protect the possession of a,bona fide purchaser, without notice, from an equitabl title, although even that has been sometimes questioned ; but whether it will avail against a legal title, is more doubtful. From a review of all the authorities, Sugden, in his 431 SUPREME COURT [March Term, (Union Canal Company v. Young.) treatise, seems to think ^t clear, that the plea is a protection against a legal, as well as an equitable claim, although this con- clusion has been doubted by Chancellor Desaussure in 8nelyrove v. Snelyrove; who observes, that when the title attempted to be set up, is an equitable one, it seems very reasonable that r+joQ-i *the Court should forbear to give its assistance in setting ' -I up such equitable title against another title set up by a fair purchaser. But when the complainant comes with a legal title, I do not perceive how he can be refused the aid of the Court. In Pennsylvania, under our recording acts, it cannot well be doubted that it would be a valid defence, as well against a legal as an e.quitable title. More v. Mahon, (1 Chan. Cases 34;) Maitlandv. Wilson, (2 Atk. 241 ; 3 Atk. 314 ;) Harding- ton v. Nichols (3 Atk. 304 ;) 8nelgrove v. Snelgrove, (4 Des. R. 287 ;) Murray v. Minster, (2 John. C. R. 157.) The purchaser is not protected, if he has notice, previously to the execution of the deeds and payment of the purchase-money ; for till then the transaction is not complete; and therefore, if the purchaser had notice previously to that time, he will be bound by it. In England the rule is carried to a great extent for it would seem that a purchaser is not protected, unless the whole purchase- money has been paid. This precise point came before this Court in Youst v. Martin, (3 S. & R. 423 ;) where the English doctrine was overruled ; and it was held, that where the purchaser has paid part of the purchase-money, the owner of the equitable title, cannot recover the land without repaying the money paid by the purchaser, before receiving notice. With this equitable qualifi- cation, the rule itself is distinctly affirmed. The burthen of proof is thrown upon the purchasers ; and in this instance, the de- fendants have failed to prove payment in whole or in part of the consideration, independently of the recital in the purchase-deed. The consideration is secured b^ mortgage on the property ; but that, as has been seen, is not sufficient, inasmuch, as equity will protect the purchaser against payment of it.* Motion for a new trial overruled, and judgment on the verdict. Cited by Counsel, 3 Wharton, 492 ; 4 Id. 386 ; 4 Barr, 410 ; 2 Jones, 325 ; 1 Casey, 513 ; 6 Id. 394 ; 7 Id. 144 ; 11 Id. 93 ; 3 P. P. Smith, 286, 479 ; 5 Id. 88, 358 ; 6 Id. 482; 7 Id. 154; 2 Grant, 115. Cited by the Court below, 14 Wright, 433. Cited by the Court, 7 Watts, 90 ; 10 Id. 29 ; 4 Watts & Sergeant, 400 ; 3 Barr, 199; 5 Id. 140, 151 ; 1 Harris, 112; 6 Id. Ill ; 9 Id. 488 ; 1 Casey, 360 ; 4 Id. 425 ; 10 Id. 401 ; 4 P. P. Smith, 19. Followed, 7 Watts & Sergeant, 160. * See 4 Watts, 362 ; 9 Id. 189 ; 2 Jones, 116 ; 10 Casey, 255. 1836.] OF PENNSYLVANIA. 433 [*PHILADELPHIA, APRIL 18, 1836.] [*433] MOORE and Another v. HUMPTON. IN ERROR. A testator gave to his wife all his estate real and personal, that should re- main after payment of his debts, &c., adding, "but if it shall be the opinion of my executors, that my said estate is more than sufficient for comfortable support of my said beloved wife during her life, then I direct them to pay to L. the sum of 100, when the settlement of my aftairs shall admit of its being done without inconvenience to my afore- said wife, &c. And I further direct them to pay or transmit to my nephew R. H. L., one half of the remainder of the said property, if any there should be, that my said wife may die possessed of; and the other half I leave to her disposal." The widow of the testator afterwards made her will, which, besides various legacies, contained the following : " Item I devise and direct that one half part of all my estate (after pay- ment of my just debts and funeral expenses,) be paid to the heirs or legal representatives of R. H. L., agreeably to the will and intention of my late husband, excepting thereout my household furniture, which I dis- pose of as hereinfter mentioned." .Held, that R. H. L. was entitled to one half part of the remainder of the testator's estate, and not to the half part of the estate of the widow . UPON a writ of Error to the District Court, for the City and County of 'Philadelphia, it appeared, that an amicable action was entered to December Term, 1834, of that Court, by Lewis Ed- wards Humpton against John Wilson Moore and Caleb Peirce, executors of the last Will and Testament of Elizabeth Humpton, deceased ; and the following case was stated for the opinion of the Court: " Richard Humpton, being seised and possessed of certain real and personal estate, died on or about the 20th day of January, A. D. 1805, having made his last will and testament dated the 10th of June, A. D. 1804, which was duly proved on the 29th of January, A. D. 1805, and letters testamentary thereon 'granted to Elizabeth Humpton and John D. Steele, executrix and one of the executors named in said last Will. The following is a copy of the said Will: "1, Richard Humpton, of the township of West Bradford in the County of Chester and State of Pennsylvania, being infirm in body, but of sound understanding and memory, do make this my last Will and Testament, hereby revoking and disannulling all former Wills and Testaments, as follows, namely : Item 1. I do hereby will and direct that my executors herein- after named, shall as soon after my decease as conveniently may be, cause *an impartial appraisement to be made, and inventory taken and recorded in the office at West Ches- ter of all my personal estate, and that they shall have full power VOL. i. 29 434 SUPREME COURT \_March Term, (Moore v. Ilumpton.) to dispose of all or any part of my real estate for the purpose of discharging my just debts and funeral expenses and fulfilling the intention of my will as hereafter expressed. Item 2. I do hereby will and bequeath to my beloved wife Elizabeth Humpton, all my estate real and personal that shall remain after my just debts and funeral expenses shall have been paid as before mentioned ; but if it shall be the opinion of my said executors that my said estate real and personal, is more than sufficient for the comfortable support of my said beloved wife during her life, then I direct them to pay to Lewis Edwards Humpton, the sum of one hundred pounds, when the settlement of my affairs shall admit of its being done without inconvenience to my aforesaid wife : and if at the decease of my aforesaid wife, the said legacy to Lewis Edwards Humpton shall remain unpaid, I direct my surviving executors or executor to pay to him if she dies possessed of property sufficient for that purpose. And 1 further direct them to pay or transmit to my nephew Richard Humpton Lister of the North Riding of Yorkshire in the King- dom of England, one half of the remainder of the said property, if any there should be that my said wife may die possessed of ; and the other half I leave to her disposal. Item 3. I do hereby nominate and appoint my beloved wife aforesaid executrix, and my esteemed friends Francis Bailey of Lancaster County, and John D. Steele of Montgomery County, executors of this my last Will and Testament, to whom I transfer full power to act in the premises and make good and sufficient djed or deeds of conveyance of all or any part of my estate, as the circumstances thereof shall by them be deemed necessary." An inventory and appraisement of all the personal estate of which the said testator was possessed at the time of his decease, was taken and made a short time afterwards and filed in the office of the Register for the probate of Wills and granting Letters of administration for the County of Chester, agreeably 'to direc- tions contained in said last Will, amounting to $7946 62, prout said Inventory and appraisement. The testator was seised at the time of his death of certain real estate : 1, A lot of woodland in East Fallowfield Township, Chester County ; 2, A tract of woodland in West Bradford Town- ship in the same County ; 3, A tract of land situate in Oxford Township ; 4, A tract of woodland situate in said Bradford Town- ship. This real estate was afterwards sold by the executors, in pursuance of the powers contained in said Will, and produced the following sums, viz. : No. 1, One hundred and twenty dollars ; No. 2, One thousand six hundred and eighty-eight dollars ; No. ^' ^ ne *h usanc l *dollars ; No. 4, One thousand and sixty -six dollars sixty -six cents. 1836.] OF PENNSYLVANIA. 435 (Moore v. Humpton.) The accounts of the executors of said will were filed by John D. Steele, as acting executor, on the 3d of October, 1808, in the office of the Register of Wills, &c. for Chester county, as afore- said, and having been duly transmitted to the Orphans' court, were ofterwards confirmed by said court, as by a copy therein duly cer- tified and hereto annexed appears ; which, with all the matter therein contained, is made part of this case. Elizabeth Humpton having received the several sums of money charged to her in said account, and the amount due on the several bonds therein mentioned as deposited with her, except those of Henry Benner and John D. Steele, having been paid to her, made her last will and testament, dated the 20th of the Seventh month, (July,) A. D. 1821, and having died about the day of A. D. 1828, the said will was duly proved on the 9th of Octo- ber, 1828, and letters testamentary thereon granted to Caleb Peirce and J. Wilson Moore, the above named defendants. The following is a copy of her said last will. " Be it remembered that I, Elizabeth Humpton, of the city of Philadelphia, (widow of Richard Humpton, deceased) being of sound and well disposing mind, memory and understanding, do make and publish this my last Will and Testament in manner following, that is to say, First, I will and devise that all my just debts and funeral ex- penses be duly paid and satisfied. Item / devise and direct that one-half part of all my estate (after payment of my just debts and funeral expenses) be paid by my executors to the heirs or legal representatives of Richard Humpton Lister, late of Yorkshire, in England, deceased, agree- ably to the last Will and intention of my late, husband, excepting thereout my household furniture, which I dispose of as herein- after mentioned. Item I give and bequeath to my esteemed friend John Wilson Moore, of the city of Philadelphia, physician, the sum of one thousand dollars, also my small desk. Item I give and bequeath to Lewis Edward Humpton, of Chester county, Pennsylvania, the sum of two hundred and fifty dollars, including the fifty dollars wi!h interest, lent him in the year 1810. Item I give, and bequeath to my friend Lydia Jones, (wife of John M. Jones, of the city of Philadelphia) the note I hold of hers for one hundred and fifty dollars, more or less. Item I give and bequeath to Henry Benner of the same city, the sum of one hundred dollars, and also the note I hold of his. Item I direct my executors, in case there shall be a suffi- ciency of funds, to invest in the best manner they are capable, 436 SUPREME COURT [March Term, (Moore t>. Humpton.) F*4Sn ^ e sum ^ *f ur hundred dollars, or in sums to that amount, which I bequeath and direct to be paid to the four next hereinafter mentioned legatees, as they severally come to lawful age, to wit, to Richard Humpton (son of the said Lewis E. Humpton) one hundred dollars; to Elizabeth M. Humpton, (daughter of the said Lewis) one hundred dollars, and I moreover give her half a dozen of my silver spoons To Ephraim Hump- ton, (son of the said Lewis) one hundred dollars To Elizabeth Humpton Mears, (daughter of Benjamin Mears, of the city of Philadelphia) one hundred dollars ; I also give her half a dozen of my silver tea spoons each of the said sums to be paid, with its proportional part of the interest which shall have accrued thereon. Item All the residue of my household and kitchen furniture, of every description, I give and bequeath to the said Elizabeth M. Humpton. Item I give and bequeath all my wearing apparel, to be equally divided between Mary Humpton (wife of said Lewis) and their daughters, the said Elizabeth and Mary. Item If, after paying all the aforesaid legacies, there shall still remain a sufficiency, then I further will and direct, as hereinafter mentioned, that is to say, I direct my executors to procure or have made a neat, plain silver tankard, of the value of fifty dollars, which I give and bequeath to my beloved friend, Mary Cuthbert I give and bequeath to the contributors to the Pennsylvania Hospital, to be added to the capital stock, the sum of fifty dol- lars I give to my executors fifty dollars, in trust, to pay the same to the treasurer of the Philadelphia Monthly Meeting, for the use of the poor All the rest and residue of my estate, what- soever and wheresoever, I give and bequeath the same to my friend John D. Steele, of Chester county, Pennsylvania, and the said Lydia Jones, (wife of John M. Jones,) to be equally divided between them, part and share alike. And lastly, I nominate and appoint my friends, the said John Wilson Moore and Caleb Peirce, of the city of Philadelphia, ex- ecutors of this my last will and testament, and I do hereby revoke all wills by me heretofore m&de. In witness whereof, I have hereunto set my hand and seal, this twentieth day of the seventh month, (July,) A. D. 1821." At the time of her decease, the said Elizabeth Humpton, the testatrix, had in her possession the oond and mortgage for ,15, and the note for .12, 12., given by Henry Benner, and also the bonds and mortgage given by John D. Steele for .1000, which are mentioned in the said accounts of the executors of said Rich- ard Humpton to have been deposited with her, and also the prin- cipal part of the household furniture, mentioned in the same 1836.] OF PENNSYLVANIA. 436 (Moore v. Humpton.) account and for which an allowance is craved for " deficiency in sale, occasioned by the reservation made by the relict of the de- ceased, of plate, furniture, linen *and horse, &c., for r*4q7i her own use" being the same furniture which is be- "- queathed by her in her will. The whole fund which her execu- tors have, has been derived from the following sources, viz. : A bond and mortgage of Mary, Margaret, and Eliza- beth Lisle, given to said Elizabeth Humpton, and dated September 28th, 1827, for $2000 00 A bond of William Coates to said Elizabeth, dated May 17, 1814, for 364 00 On account and in part of John D. Steele's bond and mortgage, deposited with said Elizabeth as aforesaid, 855 45 The funds now in the hands of the defendants consist of the fol- lowing investments : 1. Bond and mortgage, 2300 00 2. Chesapeake and Delaware Canal loan, $392 65, worth 251 29 3. 15 Shares Commercial Bank stock, 992 48 From which are to be deducted the executors' commissions and certain incidental expenses ; amount to be ascertained by attor- neys. Richard Humpton Lister died between the time of the deaths of Richard Humpton, and his widow, Elizabeth Humpton. 1. Did Elizabeth Humpton, under her husband's will, take an ab- solute estate in all the property, real and personal, of which her husband died seised and possessed ? or 2. Did she take but a life estate in the said property, with a power merely to dispose of so much thereof as might be neces- sary for her comfortable support during life, and also a power to dispose absolutely of one half which might remain at her death ? 3. In case the court should be of opinion in the affirmative of the second question, what proportion, if any, did the heirs or legal representatives of Richard Humpton Lister take under the will of Elizabeth Humpton, of the funds admitted to be in the hands of her executors ? If the court should be of opinion in the affirmative on the first question, then judgment is to be rendered for the plaintiff for the principal sum bequeathed by said Elizabeth Humpton to the plaintiff, with half interest thereon from one year after the said Elizabeth's death If the court should be of a different opinion on said first question, then the judgment to be entered 437 SUPREME COURT [March Term, (Moore . Humpton.) for the plaintiff or defendants as its opinion upon the other ques- tions shall affect the assets in the hands of the defendants. Either party to be entitled to a writ of error." On the 14th of March, 1835, the District Court "being of opinion on the case stated, in the negative of the first question, and in the *affirmative of the second, and on the third question that Richard Humpton Lister's heirs or legal representatives took nothing under the will of Elizabeth Hump- ton, she intending merely to confirm her husband's will, ordered that judgment be rendered for the plaintiff in the sum of $169 82." The defendants took a writ of error to this judgment. Mr. J. P. Norris, for the plaintiffs in error, cited Upwell v. Hahey, (1 Peere Wms. 621 ;) Smith v. Bell, (6 Peters' Rep. 68.) " Mr. W. M. Meredith, for the defendant in error, cited Morris v. Phaler, (1 Watts, 32.) PER CURIAM. Let the absolute interest of Elizabeth Hump- ton have been what it may, she certainly undertook to dispose of no more than she had power to dispose of. What did she mean by the words "one half part of all my estate," by which she des- ignated the subject of the payment directed to be made to the legal representatives of Richard Humpton Lister ? Clearly not that part which she had, in any event, an indisputable right to dispose of; but all that was her's for life and enjoyed by her as such. It was still her own when she dictated her will. The di- rection is declared to be in furtherance of her husband's arrange- ment, and it is but a repetition of what he had said. She never meant that the representatives of Mr. Lister should have a moiety of the part left at her disposal in addition to a moiety of the whole ; and the only supplementary arrangement made by her, was to direct that the household furniture specially bequeathed by her should come out of the part over which she had an unquali- fied disposing power. The result of this construction is the same that would be produced by holding her to have been the absolute and unlimited owner of the whole estate ; and according to the terms of the agreement the plaintiff below was entitled to the whole of his legacy. Judgment affirmed. 1836.] OF PENNSYLVANIA. 439 [PHILADELPHIA, APKLL 18, 1836.] [*439] PEMBER'S CASE. HABEAS CORPUS. Where a person, convicted of passing counterfeit bank notes, was sentenced in the year 1828, to imprisonment at hard labor for a certain number of years in the jail and penitentiary for the city and county of Philadelphia, and in pursuance of that sentence, was confined in the Walnut-Street Prison in the City of Philadelphia ; and upon the sale of that building, was removed with other prisoners to the Arch-street Prison in the same city, and there kept without being put at hard labor, it was held, that he was not entitled to be discharged on habeas corpus. Ax habeas corpus having been issued to the keeper of the Arch- Street prison to bring up the body of William Pember, alias Francis Horner, alias John King, a return was made setting forth four several sentences on convictions in the Mayor's Court for the city of Philadelphia, at June Sessions, 1828, on four several indictments tried in that Court ; three of them for pass- ing counterfeit bank notes, and one for an assault -with intent to murder. On the first of these indictments he was sentenced to undergo an imprisonment in the jail and penitentiary of the city and county of Philadelphia, for three years at hard labor, to be fed, clothed, &c. as the law directs ; on the second he was sentenced to a like term of three years ; on the third to five years ; and on the fourth to one year, in the same jail and penitentiary. The convict was accordingly taken to the prison on Walnut- Street, in the city of Philadelphia, then the jail and penitentiary of the city and county, and there confined and employed in pur- suance of his sentence. The Legislature having authorized the sale of the Walnut- Street prison, and the erection of a new penitentiary, the prison- ers confined in the former were removed in the autumn of 1835, some of them to the new penitentiary in Moyamensing, and some to the Arch-Street (or Mulberry-Street) prison. Among the lat- ter was the person now brought up on the habeas corpus. Mr. R. M. Lee, for the prisoner, contended that he was entitled to a discharge. He cited 1 Christ. Blackst. 88, n. 19 ; Acts of 1790, 17; 1792, 24, 31; 1816, 2; 1818, 5; 1821, 1; 1823, 1, 3 ; 1824, 2. Mr. Dallas, contra. 440 SUPREME COURT [March Term, (Pember's Case.) r*4401 *The opinion of the Court was delivered by HUSTON, J. The prisoner is brought before this Court, and his discharge is asked for, because, immediately after sentence was passed, he was confined in the prison in Walnut- Street; is now confined in the prison on Mulberry (commonly called Arch) Street, where, it is said, he is not kept at hard labor ; and because, it is said, he may be removed to what is called the Eastern Penitentiary, where he will be kept at hard labor separate and apart from the other prisoners. With what is to be done, we have in this case, at present, nothing to do ; inquiry is, in such a case as this, confined to, whether the prisoner is ille- gally detained. It will be proper to refer to several acts of assembly relating to the prisons of Philadelphia city and county, and of the com- monwealth, and to the laws changing the punishment of crime, from corporal punishment to hard labor; and it may suffice to say, that the idea is of ancient origin ; we find it first in an act of Assembly of 1705, and may, perhaps, safely ascribe its origin to Wm. Penn: after the war of our revolution, it was revived and extended in its application to many offences ; but the convicts labored on the highways or in other public places, during the day, and were. confined in prison only during the night, and then not separated from each other. On the 5th of April, 1790, a law was enacted, which it will be necessary to consult. It is the basis of our present system, or more properly, it is the present system, though at first, it was not carried into effect according to its spirit; because we had not either experience or suitable prisons. The preamble to that act states, " Whereas the laws heretofore made for the purpose of carrying the provisions of the constitution (of 1776) into effect, have in some degree failed of success from the exposure of the offenders employed at hard labor, to public view, and from their communication not being sufficiently restrained, within the places of confinement, and it is hoped, that the addition of unremitled solitude to laborious em- ployment, as far as it can be effected, will contribute as much to reform as to deter." The act then proceeds to direct the length of time during which persons convicted of the several crimes enumerated, shall be sen- tenced to be confined and kept at hard labor, and prescribes the manner of feeding and clothing them. It was known that at that time the prisons, in many counties, were not of such construction, either in form or materials, as to be fitted for the purposes of this act, and in the 8th section it was directed, that the commissioners of the county of Philadelphia, with the approbation of the mayor and two alderman, and two justices of the quarter sessions of the city and county, shall cause to be constructed, in the yard of the 1836.] OF PENNSYLVANIA. 440 (Pember's Case.) jail of the county, a suitable number of cells of 6 feet in width, 8 feet in length, and 9 feet in height, &c. &c. and the said cells shall be * separated from the common yard by walls of r* 4.4-1 -i such height, as without unnecessary exclusion of light, will prevent all external communication, for the purpose of con- fining therein the more hardened or atrocious offenders, who by that act have been or shall be sentenced to confinement at hard labor for a term of years. By section 10 it is provided, that the residue of the gaol shall be appropriated for the purpose of confining as well such male convicts sentenced to hard labor, as cannot be accommodated in the cells, as well as all other prisoners ; all of whom are to be kept separate and apart as far as the convenience of the prison will admit. Section 13, after prescribing the food, clothing, and kinds of labor, in which the convicts are \o be employed, proceeds to direct, " during which labor the said offenders shall be- kept sep- arate and apart from each other, if the nature of their several em- ployments will admit thereof." And section 18 prohibits from entering the criminal apartment, all persons except the keeper and assistants, inspectors of the prison, officers of justice, counsel or attorneys employed by the prisoners, ministers of the gospel, and those to whom two of the inspectors shall give a written permit. Now it is most apparent, that under this act the prisoners sen- tenced to confinement at hard labor, were to be kept separate and apart from each other as far as could be affected that is, so long as the number of cells was equal to the number of convicts ; and where this was not the case, the cells were by this and other acts, appropriated to, or in part to the more hardened and atrocious offenders. By the 34th section, felons convicted in any county of the State, for which he or she shall be sentenced to hard labor for the space of twelve months or upwards, might, at the discretion of the Court, be removed to the gaol in the county of Philadelphia, &c., &c. Though it was afterwards provided, that those sentenced for two years or upwards, might be removed, yet the number of offenders soon greatly exceeded the number of cells which were built, or which, for want of room, could be built within the gaol of Philadelphia. By an act of 22d April, 1794, it was provided, (section 11,) that every person convicted of the crimes enumerated in the 10th section, " shall be confined in the gaol and penitentiary house aforesaid, and shall be placed and kept in the solitary cells thereof on low and coarse diet, for such portion of his or her imprison- 441 SUPREME COURT. [March Term, (Pember's Case.) ment as the Court in their sentence shall direct and appoint ; provided that it be not more than one half, nor less than one twelfth of the time, and the inspectors of the gaol shall have power to direct the infliction of the said solitary confinement at such intervals, and in such manner as they shall judge best." Whether this section really extended to change the punishment, and indirectly abolish confinement separate and apart during the f*4421 w hl e f the period of the sentence ; or whether, *as it J was perfectly known, that every offender could not be kept separate and apart from others, for there were not enough of apartments for the purpose, it provided, that certain offenders con- victed of certain specified atrocious crimes, should at all events, spend part of the time prescribed by the sentence in the solitary cells, might admit of tedious discussion ; but has become immater- ial because, either in express terms as to many offences, or by im- plication stronger than is found in this act, it had ceased to have any force before the present sentences were passed ; besides in terms, taking the 10th and llth sections together, it only applied to those convicted in and sent from other counties to the prison at Philadelphia. On the 5th of April, 1790, the prison of the city and county of Philadelphia was bounded on Walnut^Street, Sixth-Street and Prune-Street, and after other prisons were erected, was called the Walnut-Street prison, the city and county prison, the old prison promiscuously ; and a part of it appropriated to debtors, &c., &c., was called the Prune-Street apartment of the prison. In process of time it became necessary to erect other prisons ; and one having been commenced on Arch-Street, an act of As- sembly of 31st March, 1881, was passed, appropriating twenty- five thousand dollars toward completing it ; the 2d section pro- vides, that " immediately after the said prison shall be completed and suitable for the admission of prisoners, the inspectors may, if they think proper, cause to be removed thereunto all or any of the pereons convicted of crimes and misdemeanors, that may be then confined in the prison of the city and county of Philadel- phia, and if necessary, to receive into the said prison from time to time, all persons that shall hereafter be convicted in this com- monwealth, and subject to hard labor by the existing laws in the gaol and penitentiary of the city arid county of Philadel- phia;" and the said new prison was thereafter to be the exclusive property of the commonwealth: (this was afterwards changed, and it became the property of the city and county.) The act of 2d April, 1803, had provided for the removal of prisoners (not convicts) to the Arch-Street prison ; that of 1812 had provided for the removal of prisoners convicted of crime, as soon as the prison was completed for their admission : from some causes the 1836.] OF PENNSYLVANIA. 442 (Pember's Case.) Arch-Street prison was long before it was completed on the origi- nal plan ; perhaps it never was so completed, and never may be. On the 15th of March, 1816, an act was passed declaring, " that the commissioners of the city and county of Philadelphia are hereby authorized to prepare such parts of the new prison in Arch-Street as may be necessary for the comfortable and safe keeping of such persons as may be confined for debt in the city and county," and to use the debtors' apartment in the old prison for convicts. On the 3d March, 1818, provisions were made for erecting a penitentiary on the public ground in the Town of Allegheny, to be used *as a place of confinement for convicts from the western section of the state ; by the 5th section, the in- spectors, county commissioners, and others named, are authorized to sell the prison and lots on which it is situated on Walnut and Prune Street. The 6th section declared, that " whenever a sale of said prison and lots shall have been effected, the inspectors shall as soon as conveniently may be, cause all persons then con- fined therein, to be removed to the new prison on Mulberry-Street, and there safely kept, fed, clothed, treated and dealt with accord- ing to law, and to continue them therein until duly discharged, or removed to such other penitentiary or prison, as shall be erected for their reception and safe-keeping." And section 7th author- ized the purchase of a suitable lot for a new penitentiary : section 8th authorized the inspectors to erect on the lot so purchased, a new penitentiary or public prison adapted to the solitary confine- ment of convicts. The prisoner was tried and convicted since the enactment of this law. The prison on Walnut and Prune Streets has been sold. The prisoner has been removed to the prison on Arch-Street : a new penitentiary has been erected ; and by the act of 28th March, 1831, (section 6,) it is provided, that the inspectors of the jail and penitentiary, on the first Monday in April, 1833, or as soon thereafter as conveniently may be, shall remove all the convicted criminals, who may remain in the said jail and penitentiary, to the state penitentiary for the eastern district, there to be imprisoned, kept and punished according to law and their several, sentences, until duly discharged ; with a proviso that the penitentiary be then prepared for their reception. Applications to a Court on habeas corpus are made by persons under very different circumstances, A person may apply who is restrained or deprived of his liberty, without any cause justifying such restraint ; and on this appearing the person is ordered to be discharged. In the present case, the prisoner is confined under a sentence or sentences of a competent Court of record ; which sentences are in due form of law, not even complained of ; 443 SUPREME COURT [March Term, (Pember's Case.) but the application is founded on the allegations, that the prisoner could not have been legally removed to the prison on Arch street. It was not contended and could not be with propriety, that when a prison was too small or. too insecure, the Legislature could not authorize the building a new one, and direct the prisoners to be removed to it. There was however, a mistake of fact in supposing there was no law expressly authorizing the removal of persons convicted of crime to the Arch street prison. There are at least two express acts on the subject above cited. Another ground was taken, viz. that the prisoner is not kept at hard labor ; and further, that the prison as it now is, is not adapted to keeping prisoners at hard labor. This then presents the case of a person legally confined, but who alleges he is not r*4441 I e 8 a % treated. If the *keepers misbehave, by using undue rigor or imposing hardships or severities on the prisoner not authorized by law, they may be punished by a proper proceeding, before the proper tribunal ; or if the misbehavior consists in undue indulgence, in not imposing on the offender the sentence of the law, they are answerable for such conduct, unless some justifying cause is shown. But in no case, it is believed, will the mistake or misconduct of the keeper give the criminal a right to a total discharge from his sentence : it would amount to giving the keeper and inspectors the pardoning power. It would greatly extend the power of this Court ; it would give it the power equivalent to pardoning a criminal, for the strange reason that some other person had been either too severe or too indulgent. The acts of Assembly cited, would seem to be express that all prisoners in the Walnut-street prison should, when it was sold, be removed to Arch street prison, and as soon as the cells in suf- ficient number were ready for their reception, the convicts should be removed to the Eastern penitentiary. It is not among the facts submitted to us, but it seems to be assumed that it is now completed ; and some part of the argument went to the question whether the prisoner could, if sent there, be kept at hard labor, separate and apart from all others I repeat that this matter can- not be now legally before us ; but I will suggest some consider- ations which may be useful to those taking an interest in these matters. It has appeared that by the act of 5th of April, 1790, the hard labor to which offenders were to be sentenced, was to be per- formed separate and apart from each other, so far as the same could be effected or the nature of the labor would admit. The act of 1794, in sections 10 and 11, applies to convicts sentenced in counties other than Philadelphia, and applies to persons con- victed of any crime, (other than murder in the first degree,) which 1836.] OF PENNSYLVANIA. 444 (Reddill's Case.) now is, or on 15th of September, 1786, was capital or felony of death ; or of uttering counterfeit coin of the United States, or of counterfeiting or uttering, or uttering or passing, knowing them to be counterfeit, the notes of the bank of Pennsylvania, bank of North America, or bank of the United States. Now the pris- oner is convicted on indictments for passing counterfeit bank notes, and one for stabbing with intent to kill and murder. The last is not within the act of 1794, it was never capital or felony of death ; and the whole law respecting counterfeiting coin, and forging, or passing forged bank notes, was changed by the act of 25th of March, 1824 ; and the person convicted of this offence is to be sentenced to hard labor for a period not exceeding ten years nor less than one year, fined not exceeding 1000 dollars, and to be kept, treated and dealt with in all respects as other convicts now are or may hereafter be, by law. The prisoner committed his crimes and was convicted and sentenced after this law was enacted ; and is subject to its provisions. He was then rightly removed from Walnut-street prison to the *prison on Arch-street ; and if the Eastern penitentiary rsMje-i is prepared for the reception of convicts, he ought to be - removed to it if there is room there to be " imprisoned, kept and punished according to law and his sentence." But we can- not discharge him, or do what in effect would amount to a remis- sion of his sentence, even if the keepers or inspectors have been remiss in not having removed him sooner. Remanded. See the next case. [PHILADELPHIA, APKIL 18, 1836.] REDDILL'S Case. HABEAS CORPUS. A person convicted in the City and County of Philadelphia, and sentenced in 1830, to imprisonment in the jail and penitentiary in that City and County, for a term of two years or more, ought, upon the sale of that prison, to have been removed to the Eastern Penitentiary, and not to the Moyamensing prison ; but this Court will not for that cause discharge the prisoner on habeas corpus. IN this case an habeas corpus had been issued to the keeper of the jail of the City and County of Philadelphia, to bring up the the body of John Reddill alias John Reading. 445 SUPREME COURT [March Term, (Reddill's Case.) The return set forth that the prisoner was confined under two sentences of the Court of Quarter Sessions for the County of Philadelphia, on the 8th of June, 1830, on convictions for lar- ceny. The first sentence was to undergo an imprisonment at hard labor for 3 years, to be fed, clothed and treated as the law directs. The second was for a like term, to commence on the ex- piration of the former sentence. The convict in this case had been confined in the Walnut street .prison ; but upon the completion of the Moyamenging prison, he was transferred to that building and there kept in solitary con- finement. Mr. Binns, (who stated that he had been requested by the in- spectors of the prison to bring the subject before the Court,) cited the acts of 30th of March, 1831, and 14th of April, 1835. The Arch-street and Walnut-street prisons are both County prisons. This prisoner was one, who by the 7th and 15th section of the act of 1831, was liable to be sent to the Moyamensing prison. Solitary confinement was used in the Walnut-street prison by virtue of the 19th section of the act of 1790 ; but it is true only in certain specified cases. How far the act of 1831 is constitutional is another question. It does not appear by the return that this prisoner is in solitary confinement ; and it is not easy to perceive how this Court can interfere on a habeas corpus. In their characters as visitors, the judges have a right to inquire into the discipline of the prison ; but upon a }ial>eas corpus, the only question is, whether the prisoner shall be discharged or not. The opinion of the Court was delivered by HUSTON, J. It will not be necessary in this case to recur to all the acts of Assembly referred to in the last case. Early in this century it was contemplated to build a second prison in this city, to be situated on Arch-street ; that prison was, after much delay and interruption, built ; but before it was completed, laws passed for building a penitentiary for the western counties at Allegheny, and one for the eastern counties at Phila- delphia ; and for this and other reasons the inside of the prison on Arch-street, seems never to have been completed on the plan of making it an extensive penitentiary ; though by the laws of 1812 and 1818, both of which directed a sale of the old Walnut- street prison, all prisoners in it, when it was sold, were to be removed to the Arch-street prison. The old prison was not sold until 1835, and by that time the Eastern penitentiary was com- 1836.] OF PENNSYLVANIA. 446 (Reddill's Case.) pleted ; and at the time the act of the 28th of March, 1831, had enacted, that all persons convicted in any county in the eastern District of Pennsylvania, and sentenced to one year's imprison- ment at hard labor, or more than one year, should be confined in the said Eastern penitentiary ; and further had provided by the 6th section, that the inspectors on the 1st of April, 1833, or as soon thereafter as conveniently may be, shall remove all the con- victed criminals, who may then remain in the jail and peniten- tiary, to the aforesaid State penitentiary for the eastern District, there to be imprisoned, kept, &c. &c. Two days after this act, viz. on the 30th of March, 1831, an act passed to build a new prison and debtors' apartment for the City and County of Philadelphia, and for the sale of the Walnut- street prison. The 8th section provided, that every person con- victed in the City or County of Philadelphia, and sentenced to confinement for one year or less, should be confined in this new prison, if then erected. A supplement to this act was passed on the 14th of April, 1835. The 13th section is a transcript of the^ 6th section of the last law, except that it *embraces the case of all persons convicted in the City or County and sentenced to confinement for any time under two years. The 15th section provides, that so soon as said prison shall be completed and prepared for the reception of prisoners, it shall be the duty of the inspectors appointed under this act, to cause to be removed to said prison all persons who may be confined in the prison on Arch-street, in the said city, excepting debtors and witnesses ; and the said inspectors were thereby authorized to call upon the sheriif of the City and County of Philadelphia, for such aid as they may think requisite to remove said prison- ers ; and thenceforth, all prisoners, who by the existing laws of this Commonwealth, were liable to be confined in the Arch- street prison, "shall be respectively sent to the Philadelphia County prison, there to be kept in separate or solitary confine- ment, and fed, and clothed and treated according to the pro- visions of this act, and the rules and regulations to be made by the inspectors in conformity therewith." This section would seem to be plain and express ; but the next section, 16, makes it the duty of the inspectors to remove from the prison in Walnut-street, all crimimals who may have been convicted and sentenced in any court of the City and County of Philadelphia, for a term under two years, and remove them to the new prison, there to be kept in solitary confinement at hard labor, and fed, &c. &c. Now, it seems strange that from Walnu^street prison, only such as had been sentenced to con- finement under two years, were to be removed ; but from Arch- street, all were to be removed to the new prison, without regard 447 SUPREME COURT [March Term, (Reddill's Case.) to the length of time to which they were sentenced ; and the diffi- culty is not removed by referring to the 6th section of the act of the 28th of April, 1831, for removing all convicts to the East- tern penitentiary. That act was in the view of the Legislature, for in the 18th section they say, " as soon as the prisoners now in the Walnut-street and Arch street prisons are removed to the Philadelphia County prison and the Eastern penitentiary, as provided in the act of 28th of March, 1828," (there is no act of that date or year on the subject, and it should be 1831,) and by this act, " all the rights, powers, and privileges at this time vested in and exercised by the board of inspectors of the jail and penitentiary house of the County of Philadelphia, shall be trans- ferred to and vested in the board of inspectors of the Philadel- phia County prison," &c. After a full and deliberate examination of the several acts, we cannot avoid seeing that there is something like a direction to remove a certain class of convicts to the new city prison ; which convicts by other clauses, are directly ordered to be removed to the Eastern penitentiary ; and so much is this the case as to excuse, and perhaps justify a removal to either ; but we have come to the conclusion that, from all Jhe acts, the construction must in accordance with the general design, and also consist- ently with the letter, be, that all convicts in confinement, either r*J481 * n ^ a ^ nu ^ or Arch-street prison, who, *by their sen- -1 tence, were to continue two years or more, ought to have been removed to the Eastern penitentiary, or ought now to be removed to it. The City and County jail is only for those convicted in the City or County, and sentenced to confinement for a period under two years. The prisoner then ought to be remanded to the Eastern peni- tentiary. I need not repeat the observations on the difference between persons illegally restrained of liberty, and those legally confined under the sentence of the law. To the latter, if im- properly treated, or if confined, we may grant some redress ; but we cannot absolutely discharge them, (except by reversing the judgment on writ of error,) nor even can the Legislature dis- charge a person convicted and sentenced according to law, from that sentence ; a pardon from the Executive alone can do this. Prisoner remanded. 1836.] OF PENNSYLVANIA. 448 [PHILADELPHIA, APRIL 18, 1836. ] The COMMONWEALTH against KING and Others. A miller in New Jersey having contracted to deliver a certain quantity of flour in New York, sent it to A. a carrier in Easton in Pennsylvania to be forwarded to New York. The Morris Canal being obstructed by the ice, a portion of the flour was sent in a canal boat by A. to B. another carrier in Philadelphia, to be forwarded by him by way of the Delaware and Raritan Canal to New York. On the arrival of the boat at Phila- delphia, the flour was landed on the wharf of B., and shortly afterwards put on board another vessel belonging to B. ; being a packet boat plying on the canal and between the two cities. The flour was in barrels which did not bear the mark or brand of the state of New Jersey ; and no offer to submit the flour to inspection was made. Held, under the act of 14th of April, 1835. (1) that the flour was liable to inspection; (2) that there was a sufficient "offer to transport" it out of the state, without inspection ; consequently that the inspector had a right to seize it as forfeited ; and that the circumstances of B. being ignorant of the fact of non-inspection was not material. THIS was an indictment against Francis King, Alfred Hay- den, George M'Henry and John O'Rourke, which had- been found in the Mayor's Court for the City of Philadelphia, at December Sessions 1835, and removed to this Court by eertio- rari. The indictment contained three counts ; *1. For a riotous assault upon one of the deputy- r*.j.iq-i inspectors of flour for the city of Philadelphia, while in L the lawful execution of his official duty. 2. For an assault upon him while in the lawful execution of such duty. 3. For a common assault. At the trial, which took plade at a Court of Nisi Prius held at Philadelphia on the 12th of March, 1836, before the Chief Jus- tice, the following facts appeared. In the month of November, 1835, John Quick &. Son, millers, residing at the town of Belvidere in the state of New Jersey, con- tracted with Messrs. Nevins & Son of New York, .to deliver to them 600 barrels of flour in New York. The flour was accord- ingly sent to Rodenbaugh & Co. carriers at Easton in Pennsyl- vania, branded for the New York market according to the requi- sitions of the law of that state, llodenbaugh & Co. sent 61 barrels of this flour in their boat, by the Delaware Canal, to Messrs. C. & F. King in Philadelphia, to be forwarded in a line of packets, which the latter were engaged in running from Phila- delphia to New York through the Delaware and Raritan Canal. The flour arrived at the wharf in Philadelphia on the 25th of November, 1835, when it was placed on board one of the packets VOL. i. 30 449 SUPREME COURT [March Term, (Commonwealth v. King.) of Messrs. King. In the afternoon of that day the deputy in- spector of flour, having received information of the facts, pro- ceeded to the boat and requested them to discharge the flour for inspection. He was told that there was none on board ; but hav- ing ascertained that the fact was otherwise, he placed two watch- men on board. One of the firm of Messrs. King then said, that it should be landed the next morning. On the next day the in- spector attempted to seize the flour, on the ground that it was for- feited under the inspection laws. The defendant King forbade him to remove it, and ordered his laborers to roll the flour into the store of C. & F. King. The assault then took place, which was the subject of the indictment. The defence was, that the flour was not liable to inspection ; and, that if it had been liable to inspection, it would not, under the cir- cumstances, have been forfeited. That this being the case, the inspectors had no right to seize it, and were, therefore, the aggres- sors ; and that the law justified the interference of Mr. King to protect his servant, and justified the defendants in repelling force by force under the circumstances. The defendants' counsel asked the Court to charge the jury, that^- " 1. If the flour in question was in transitu from New Jersey to New York, it was not liable to inspection. 2. If the flour came from the mill of Quick & Son to Easton * n * execut i n f the contract of 7th November, 1835, and was at the time in question under carriage to New York in pursuance of that contract, it was not liable to inspec- tion. 3. If the jury believe Quick and Rodenbaugh, the flour was in transitu, while at Philadelphia. 4. The mere landing of it on a wharf in Philadelphia for the purpose of transhipment in the course of its carriage to New York aforesaid, does not render it liable to inspection. 5. That the removal of the flour from one boat to another, in the transitus from New Jersey to New York, though in the port of Philadelphia, does not subject the flour to inspection. 6. That the inspectors had no right to inspect this flour, if they knew its origin to be in New Jersey, and its immediate destination to be New York. 7. That the limits of the transit for the above purposes are to be fixed by the two termini, which were New Jersey and New York. 8. That the law of the case is in these respects the same, if the termini were Easton and New York. 9. That if there were no right to inspect, there was under the circumstances of the case, no forfeiture. 1836.] OF PENNSYLVANIA. 450 (Commonwealth . King.) 10. That there was no forfeiture, if the lading of the Planet was incomplete, and the shipment or intended shipment, so far as measures had then been taken for making it, was without the participation of any but unauthorized servants, and without the knowledge of their employers at the time of its being discovered by the officers." The Chief Justice charged the jury in substance as follows : " The material questions are was the flour subject to inspec- tion ? Was it forfeited by evasion ? Were the officers resisted ? To find any one of these for the defendants is to acquit them.. 1st. They contend, that the article was in a course of trans- port from an adjoining state through the port of Philadelphia to a market ; consequently not within the intent of the inspection laws. That if within the intent, they (the laws) are to be controlled by the constitution of the United States. Flour passing through a state, along the common highway of the states, is not subject to inspection ; a vessel may pass from a point on the Delaware above the state to a point below it ; may pass without being challenged, though anchored in the port or made fast to the wharf. But there must be no transhipment to a Philadelphia vessel, or any vessel receiving a cargo in port that would break continuity, and make the beginning of a new voyage. The owner cannot use the port for exportation, and not comply with 'the regulations of the port. Was this an exporta- tion by a Philadelphia forwarding house, or was it a continuation of the voyage from New Jersey or from Easton ? Continuity may be one thing for charging *carriers for loss, and another r^M c-i -i for charging the article with local regulations. Flour L is certainly within the inspection laws. The object of these is the protection of our local character in foreign markets. This is not accomplished by permitting the article to depart without brand, whether it be of domestic or extra-territorial origin. The foreign dealer knows nothing of acquired character from temporary situs he judges from the clearance of the ship. The case was the same in principle as if the shipment were to European ports. As to the constitutionality of the law, the right of the states to pass inspection laws has been recognized. These are strictly municipal, not regulations of foreign commerce. To regulate commerce be- tween state and state was given to Congress to prevent oppression, by ruinous burthens of the commerce of a neighbor. But bur- thens are not ruinous or oppressive when no greater than those imposed on the inhabitants of the same state. An act in the guise of an inspection law might be in substance a regulation to burthen foreign commerce, and then it would be void. Such is not the character of our inspection laws. 451 SUPREME COURT [March Term, (Commonwealth v. King.) 2d. Being liable to inspection, was the flour forfeited? Did any one in the words of the law * offer to transport' it? An article may be forfeited by acts of those who do not own it. The owner is liable for all acts done in the course of the agency, to which he commits it his remedy is against the agent. The fact of the knowledge of Messrs. King is immaterial they were bound to know every thing done in the course of their business. Was the flour put aboard by any one with intent to ship it? The commonwealth has nothing to do with the owner or agents, but only, with the article. Forfeiture does not make these criminally responsible the penalty is attached to the article, and the agent is civilly responsible for misconduct. The offence is complete by the first step taken towards unlawful purpose, even by an offer to execute. 3d. Was there a riot? Any unlawful act done with violence by three or more, is a riot. To oppose officers in the execution of their duty, is unlawful. Were the inspectors in execution of their duty ? The statute dispenses with a warrant of seizure such dispensation is not unconstitutional. It is not pretended, that the officers were not opposed the flour was actually res- cued. Wanton violence by officers, if any could be pretended, is not to be set against violence offered to them the cases are separ- ately punishable. These are not the days for presumptions un- favorable to public functionaries the tendency of the times is not towards official oppression, but towards contempt of authority. When the ministers of the law are incompetent to execute it, freedom is gone, and the weak are the slaves of the strong. Our duty is to sustain the officers while we can." The jury found the defendants guilty. F*4 r i21 *^ m ti n f r a new to^al having been made, the ques- - tions of law now came on to be argued. Mr. Cadwalader for the defendants. The case turns upon the true construction of the act of 15th of April, 1835, entitled, " An act relating to inspections," by which the previous laws were consolidated and revised. 1. Was this flour forfeited, supposing it to be within the in- spection laws ? 2. Was it liable to inspection ? 1st. The 32d section of the act declares, that " if any person shall offer to transport any such flour or meal out of this state without being proved or branded in the manner required by the act, the same shall be forfeited and sold by the inspectors," &c. The 43d section provides for the entry in the manifest of the number of barrels, &c. and declares, that the inspector shall have free access to such manifests. This section shows when the act 1836.] OF PENNSYLVANIA. 452 (Commonwealth v. King.) of exportation is complete. In a question of this kind, the scien- ter is of the first importance. Now there is no scienter at all, proved on the part of the principals. The knowledge seems to have been confined to the laborers ; by whose acts they could not be bound. In England the rule now is to interpret the revenue and navigation laws favorably for the subject, and to lean against forfeitures, if the law is obscurely worded. Hubbard v. John- son, (3 Taunt. 220, 1.) So in the United States courts. U. States v. G-oodin, (12 Wheat. 477.) Upon the opposite con- struction a person transporting flour from Florida to Maine, ought to be acquainted with the law of every state. There is no case throughout the act of 1835, which does not suppose a criminal in- tent. Unless knowledge be affirmatively shown by the prosecu- tion, a forfeiture cannot take place. The Betty, (1 Rob. Adm. Rep. 220, 226, 7 ;) Sturges v. Maitland, (1 Anthon's N. P. R. 153, ;) Idle v. Vanhecker, (Bunbury, 230 ;) Mitchell v. Tor- rup, (Parker, 227, 238.) The Chief Justice charged the jury as if the offence consisted of an offer to lade, whereas the act speaks of an offer to transport ; the difference being material. The Caroline, (7 Cranch, 496, 501 ;) Hoodie v. The Alfred, (3 Dall. 307 ;) The Active, (7 Cranch, 106 ;) The Emily $ Catha- rine, (9 Wheat. 385, &c.) 2d. The flour was not liable to inspection. The act of 1835, intended to give greater facilities to the passage of the produce of other states, not to throw obstructions in the way. The ques- tion is, was this flour "designed for exporation" from Philadel- phia, and it is plain from the evidence, that it was not. It was merely in transitu from Belvidere to New York. It certainly had no situs in Philadelphia, and it follows, that it was in tran- situ. It was in the hands of a carrier at the time, and would not have been brought to Philadelphia at all, if the ice had not prevented the ordinary passage *through the Morris r*icq-i Canal. Belvidere and New York then were the termini. L Hyde v. The Navigation Co. (5 Term Rep. 397.) The carriage was not divisible. Could not this flour have been stopped in transitu in case of the failure of the consignees, even after it had left Philadelphia ? Story's Abbott, 374 ; 3 East. 397, note ; Gibbons v. Ogden, (9 Wheat. 1.) Under the revenue laws, Phila- delphia would be a starting place, which gives a situs ; but it is not so under the laws relating to the coasting trade. There is nothing in a vessel of this kind to indicate, that she came from Philadelphia. (Acts of Congress of 1793, 1819 and 1822.) It is surely not an act of exportation to take a wagon or boat at Philadelphia to go to another state. There can be no injury to the trade of this city from the passage of flour under circum- stances like the present. Pennsylvania is not responsible, unless 453 SUPREME COURT \_Mu (Commonwealth v. King.) T a .ch Term her brand is upon it. It was to be inspected in New Y to brand it with the name of New Jersey, would be us could not be within the contemplation of the legislate. e : t(O rk and exportation de novo was what was meant ; and the nifc.^,, 3 j esg ' ail( j at Philadelphia, although there was a reshipment, could ? Actual considered. In Hancock v. Sturyes, (13 Johns. Rep. ^touching was held, that flour situated like the present, was not liab j j. ^ e so spection under the laws of that state. (Laws of N. Yor ggj \ ^ of 1813.) In. the case of The Apollon, (9 Wheat. 36 ? u e ^ j n _ Court say, " the question is, whether a mere transit throu^ . j^ c ^ waters of the St. Mary for the purpose of proceeding ' r>'\ ^ e Spanish territory, is to be deemed an arrival within the lir^^h t ne the United States, from a foreign port within the sense of the ^ ^ ne section of the act. We are decidedly of opinion, that it Cij^g O f be so considered." - 29th 3d. A grave constitutional question arises, if it can be sh. King.) and rowers and marines, and can pursue and bring back an offen- der against their laws. Our inspector of flour has no such aid or assistants ; and if the offence is not complete until the vessel has sailed, the offender escapes. The framers of this law and the Legislature, knew this, and by the provisions of this act the offence consists in, and the penalty is imposed not on the actually transporting the flour, but on " the offer to transport it out of this State." *It would not be safe to attempt laying down rules, Avhich, in all cases, would decide what was or was not an offer to transport out of this state ; but, in a case like this, where all those connected with the transportation were at the place where no one was expected to arrive, who would examine what had been done, and correct any irregularity where the owners and managers of the warehouse and the vessel, put flour not in- spected on board, stowed it away, and stowed on the top of it other articles made out the papers for the vessel, specifying the flour and the quantity, knowing it had not been inspected, or re- gardless whether it had or not where the discovery to the offi- cers of inspection was not made by those transporting if this is not an offer to transport out of this state, then the section is and must be inoperative. Some cases have been cited, which I proceed to notice. Han- cock v. Sturyess, (13 Johns. 331,) differs from this case in most particulars. I shall mention two : the act of New York is essen- tially different from that of this state ; and that flour had been inspected and branded at Baltimore, and never could be sold as New York manufacture. If in this case the flour had carried the brand of another state, it is not pretended that it would have been forfeited. The cases cited from 7 Cranch, 496, and 9 Wheaton, 385, prove, first, that where the penalty or forfeiture is consequent on an act completed, the penalty or forfeiture does not arise on the offer to do the act ; and further that if the penalty or forfeiture arise on the offer, they are incurred by the offer to do the act. The words and plain meaning of the law must decide when the act be- comes a violation of it. rice, or any article of a class not produced in this state. Flour is an article which has been, is, and will be a staple article of production in this state, and of export from this state. I do not know of any decision or dii-tum, which would forbid this state to enact, that all flour manufactured in the state, should be inspected previous to exportation ; and that all flour intended to be ex- 1836.] OF PENNSYLVANIA. 459 (Commonwealth v. King.) ported from Philadelphia, shall be also subject to inspection, un- less it is branded or marked as the produce and manufacture of some other state whether it is destined for another state or for Europe, makes no difference. If such were not the case, corn or rye, or buckwheat, or dust and bran, might be branded as super- fine flour, and sent abroad under a Philadelphia manifest or bill of lading as Philadelphia flour. The duties of the inspector are important ; and not the least so is the duty of seeing that the laws under which he acts are not evaded : to permit their violation and not to attempt to enforce them, would be a dereliction of duty and violation of his oath. To oppose or molest him in the due and lawful exercise of his powers, or execution *of his duties, is, by the 197th sec- r*4.Ai tion of the law made a misdemeanor, punishable by fine L not exceeding 500 dollars ; or imprisonment not exceeding one year, or both, at the discretion of the Court. After the foregoing opinion had been pronounced, the counsel for the defendants laid before the Court a copy of an act of As- sembly, passed on the 31st of March, 1836, (but which had not before come to their knowledge,) entitled " a supplement to an act entitled ' An act relating to inspections,' approved the 15th of April, 1835," the material passages of which are as follows: " Section 2. Nothing in the act, to which this is a supplement, shall be so construed as to require the inspection, proving or branding of flour or meal of any kind, shipped or laden on the waters of the Susquehanna and Delaware and their branches, and intended to be transported by the waters of said rivers, to a market out of this state, but within the limits of the linked States. Section 3. So much of the 8th section, so much of the 26th section, and so much of the 31st and 32d sections, and so much of the 157th section of the act, to which this is a supplement, as is hereby altered, and all other acts and parts of acts relating to in- spections, except this act and the act to which this is a supplement, be and the same are hereby repealed. Section 4. The true intent and meaning of the various sections of the act, to which this is a supplement, relating to foreign pro- duce imported into this state, and thence exported, are declared to be, that no produce imported into this state from any other state or country, shall be liable to inspection prior to exportation from this state, if marked or branded with the name of the state or country whence it was originally exported, though the mark or brand may have been affixed thereto, after its importation within this state : Provided, that nothing herein contained, shall be construed to repeal any of the provisions of the said act, im- posing penalties for the false marking or branding, or exporting 4GO SUPREME COURT. [March Tern, (The Case of the Philadelphia Savings Institution.) produce raised or manufactured within the state, without inspec- tion : and Provided further, that nothing herein contained, shall be 80 construed as to prevent the inspection of foreign produce, when it is desired by the purchaser or exporter." Mr. Cadwalader, for the defendants, now suggested, that the second section of this act clearly provided for the case which was the subject of this indictment, and that the repeal of the 31st and 32d section of the act of 1835, put an end to the prosecution. He cited the case of The Commonwealth v. I)uane, (1 Binn. 601.) PER CURIAM. We think that the act of Assembly applies di- F*4n 1 rect ty * to thi s case ' a J Commonwealth v. I)ua cannot proceed to give judgment. m if rectly *to this case ; and upon the authority of The Commonwealth v. Duane, we are of opinion that we Judgment arrested. e Cited by Counsel, 4 Wharton, 218 ; 4 Watts & Sergeant, 402 ; 1 Barr, 221 ; 6 Casey, 157. Cited by the Court, 7 Wright, 396. See 8 Watts, 518 ; 10 Id. 351. [PHILADELPHIA, APRIL 28, 1836. ] The Case of the PHILADELPHIA SAVINGS -INSTI- TUTION. An act of Assembly incorporating certain persons by name, and all others thereafter Incoming members, the object of which incorporation was de- clared to l>e to receive from time to time, deposits of money, and to pay the depositors such interest, as might from time to time be agreed upon by the directors, enacted, that for the security of the depositors a cer- tain capital should be raised, to be divided into shares, which should be transferable, &c. The act then proceeded to provide for annual meet- ings of the meml>ers, and for the election of directors from among the members ; gave to the directors power to provide for the admission of memliers, and made it their duty to appoint from among the- members, five persons as a committee of examination, and also to make a dividend of profits and .to pay the same over to the stockholders, or their legal representatives : Held, 1. That stockholders were not, as such, members of the corporation ; consequently that the assignee of a stockholder did not by the as- signment Income a member. 2. That persons originally members, continued to be such, although they never possessed stock or had parted with it. AT the last term, an application was made by Mr. Norris for a rule to show cause why an information in the nature of a writ of quo warranto should not be filed, to inquire by what authority 1836.] OF PENNSYLVANIA. 461 (The Case of the Philadelphia Savings Institution.) Joseph Feinour and others exercised the rights of members of the Philadelphia Savings Institution. At the same time a rule was granted upon the President and Directors of the same Institution, to show cause why 'a manda- mus should not issue, requiring them to admit William C. Bridges to participate in the transactions of the said Institution, at its meetings of business. Upon the return of these rules, the following appeared to be the material circumstances : The Philadelphia Savings Institution was incorporated by an act *of the Legislature of Pennsylvania, passed on the 5th day of April, 1834. . The first section declared that certain persons therein named, (forty-six in number,) " and all and every other person or persons, hereafter becoming members of the Philadelphia Savings Institution, in the manner hereinafter mentioned,'' should be created and made a corporation and body politic, with the usual powers and capacities. The 2d, 3d, and 4th sections, were as follows : " Section 2. The object of this corporation shall be to re- ceive from time to time, and at all times, from all persons dis- posed to entrust them therewith, such funds as may be deposited with them, and for which they shall pay to the depositor such rates of interest as may be from time to time agreed upon by the Directors of the said Institution. Provided, That the said rates of interest shall not be reduced without giving. at least sixty days' notice of their intention so to do, in two or more of the daily papers of the city of Philadelphia. Section 3. For the security of the depositors of the said Institution, it shall be the duty of the persons named in the first section, and of their associates, to raise and form a capital for the said Institution, of not less than fifty thousand dollars, nor more than $200,000, in shares of $25 each ; which capital shall be at all times liable to the depositors for the amount of their deposites and of the interest accruing thereon. The said shares shall be transferable on the books of the company in such man- ner as may be designated by the By-Laws of the said Institu- tion. Section 4. There shall be a meeting of the members of the said Philadelphia Savings Institution, on such day in the month of May next, and at such place as the five persons first named in this act, or any three of them shall appoint, and give at least ten days' notice of such meeting in two or more newspapers printed in the city of Philadelphia, and oh such day in the month of May, and at such place annually thereafter as the By-Laws of said Institution shall provide, for the purpose of choosing 462 SUPREME COURT [March Term, (The Case of the Philadelphia Savings Institution.) from amony the members, thirteen Directors to manage the affaire of the 1 said Institution for twelve months thereafter, and until a new election shall take place and the five persons first named shall he judges of the firsj; election of directors, and the judges of all future elections shall be appointed; and notice of such elections given in such manner as the By-Laws shall pro- vide." The 5th section declared the duties and powers of the direc- tors ; among which it was provided, that they should have power " to provide for the admission of members, and furnishing proofs of such admissions," and to pass all such By-Laws as should be r+Apo-t necessary to *the exercise of their powers and of the J other powers vested in the corporation by the charter : " Provided, that all such By-Laws as shall be made by the di- rectors, may be altered or repealed by two-thirds of the members, at any annual meeting, or at any general meeting, culled in pur- suance of any By-Law made for that purpose ; and the majority of members may at any annual or general meeting, pass by-laws which shall be binding upon the directors." The Cth section authorized the corporation to invest its funds in public stocks of the State, or of the United States, or in real se- curities, or in the discount of notes, and personal securities : pro- vided that the rate of discount should not exceed one half per cent for 30 days. The 7th section was as follows : " Section 7. It shall be the duty of the directors, at least once in every six months, to appoint, from the members of the said cor- poration, five competent persons as a committee of examination, whose duty it shall be to investigate the affairs of the said corpor- ation, and to make and publish a report thereof in one or more newspapers printed in the city of Philadelphia and it shall also be the duty of the directors, on the first Monday of January and July, in each and every year, to make and declare a dividend of the interest and profits of the said corporation, after paying its expenses, and the same to pay over to the stockholders or their legal representatives, within ten days thereafter." The 8th section provided, that nothing in the act contained should be so construed as to give or extend any banking privi- leges to the institution, or to give or allow any compensation to the directors thereof. Shortly after the act of incorporation, the directors adopted certain by-laws, among which were the following : " Law 4. Any member of the Institution may, by writing ad- dressed to the treasurer, resign and relinquish his place and right as a member of the Institution ; and every member who shall cease to be a stockholder, shall at the same time cease to be a member. 1836.] OF PENNSYLVANIA. 463 (The Case of the Philadelphia Savings Institution.) " Law 5. No person shall be eligible as a member, unless he shall have been a depositor one year, or a stockholder six months. All elections for membership shall be by ballot at a general meet- ing of the institution, at which the votes of two-thirds of the whole number of members of the institution shall be requisite for admission." At a general meeting held on the 5th of January, 1836, the old by-laws were repealed by the members, and in lieu of the above laws, viz. law 4th and 5th they passed the following by- laws: "Law 3, section 3. The number of members of the institution shall be limited to fifty ; and in case of vacancy by death, resig- nation *or otherwise, it shall be the duty of the presi- r*44i dent immediately to call a general meeting of the insti- "- tution to supply such vacancy, and at any election of member a majority of the whole number of members shall be present ; and the person or persons balloted for, shall have received the votes of at least two-thirds of the members present. Provided, that no person shall be elected a member who shall not have been nominated at some meeting previous to that, at which he shall be ballotted for. Section 4. Any member of the institution may, by writing ad- dressed to the president, resign and relinquish his place and right as a member of the institution, at any general meeting of the members." The law No. 5 above quoted was repealed. The board of Directors afterwards, viz. on the 14th of Janu- ary, 1836, passed the following by-law, being a repeal of and in substitution of by-law 4 above : " Law 4. Any member of the institution may by writing ad- dressed to the president, resign and relinquish his place and right as a member of the institution at any general meeting of the members." The questions submitted to the Court were, 1. Whether persons originally members, who had transferred their stock and no longer possessed any interest in the stock, con- tinued to be members, with the right of voting for directors, &c. 2. Whether a person to whom stock in the institution was as- signed as upon purchase became a member, ipso facto, without admission by the directors. Mr. James S. Smith and Mr. Sergeant contended, that none but persons having a pecuniary interest in the corporation by holding stock, were to be considered as members. The rule is, that in monied institutions an interest in the stock is essential to membership. This rule is founded in good sense, which leads VOL. i. 31 464 SUPREME COURT (Case of the Philadelphia Savings Institution.) men to trust the care of their property to persons having a com- mon interest with themselves. In the case of literary, charitable or religious institutions a general interest is sufficient. Where the corporation is of a mixed character, the principles as to mon- ied institutions ought to govern : since the control of the stock ought not to be in the hands of persons having no interest in it. Such are the turnpike and bridge companies and others, in which there is a view to the public good and private advantage. These principles will be found in the text-writers and adjudications. Angel & Ames on Corporations, 62, 77, 238, 240; Gray v. Portland Bank, (3 Mass. Rep. 364 ;) State, v Tudor, (5 Day's Rep. 333 ;) Bond v. Appleton, (8 Mass. Re 1 ?. 472.) What then is the character of this' corporation ? It is obvious, that *^ ls no *' a chkNtable institution merely. It differs from the saving banks of England, and the saving fund socie- ties established here, in the essential feature of possessing a joint- stock fund created by the subscriptions of members not deposi- tors, and upon which a dividend is annually made. The object of those societies is to take care of the money of depositors, and to pay them the highest rate of interest that can be made, after deducting expenses. They are not allowed to discount notes ; and their investments being upon real estate or public stocks, they require no collateral capital stock as security. The savings institutions, on the contrary, look to the interests of the stock- holders, and endeavor to give as much profit as possible to the latter. Whenever a capital is made up by contributions, and is to return a profit it is a joint stock, no matter what the public object may be. There are many passages of this charter, which seem to imply, that the legislature meant stockholders only when " members" are spoken of, and if there are others, which seem to import a contrary intention, the principles stated with reference to joint-stock companies, ought to have weight in deciding between them. Mr. W. M. Meredith and Mr. Broom, contra. The rules of law which have been referred to on the other side apply only where the charter is silent. Here there is a distinc- tion expressly taken between stockholders and members. The 1st, 4th, 5th and 7th sections afford evidences of this intention. There were necessarily member* before there were any stock- holders. The provision for future members is, that the directors may admit them ; not that every stockholder might make as many members as he had shares to assign. The power to the directors to admit members is necessarily an exclusive one. The only mention of stockholders is in the 7th section, where a dividend is provided for. If the stockholders alone, were to be considered 1836.] OF PENNSYLVANIA. 465 (Case of the Philadelphia Savings Institution.) members, it might follow that the greater part of the profits would be appropriated to them, to the prejudice of the depositors. The legislature probably intended that a check should exist upon this power. This is not a monied corporation, in the sense in which that term is commonly used. The primary object is the security and benefit of the depositors. The creation of the capi- tal stock is stated in the act to be for the security of the de- positors. Upon the principle relied upon on the other side, the depositors ought to have the control of the institution. The by- law made by the directors, confining membership to stockholders, was beyond their power ; besides it has been repealed by the members in the manner authorized by the act of assembly. The following cases Avere cited : Sergeant v. The Franklin Ins. Co. (8 Picker. 90 ;) Quiner v. Marblehead Ins. Co. (10 Mass. Rep. 476;) Lamb v. Durand, (12 Mass. Rep. 57;) 1 Blackst. Com. 392, 484, (note ;) 5 Mod. 259 ; Angel & Ames, 244. *The opinion of the Court was delivered by ROGERS, J. The rules obtained in this case, involve two questions, which depend upon the construction of the act of the 5th of April, 1834, incorporating the Philadelphia Savings Institution. 1. Is a stockholder, a member of the corporation, and as such entitled to participate in its business ? 2. Does he cease to be a member when he ceases to be a stock- holder ? In relation to the power of admitting members of a corpora- tion, as is said in Angel and Ames on Corporation, 62, reference must often be had to the provisions and spirit of the charter ; and when the charter is silent, we must look to the provisions of the common law, and to the particular nature and purpose of the corporation. In certain corporations, (such for example as reli- gious, charitable, and literary,) the number of members is often limited by charter ; and whenever there is a vacancy, it is usually filled by a vote of the company. As regards trading and joint stock operations, no vote of admission is .requisite ; for any person who owns stock therein, either by original subscription or by con- veyance, is in general entitled to, and cannot be refused the rights and privileges of a member. Grray v. Portland, (3 Mass. R. 364 ;) King v. Bank of England, (Doug. 524.) In monied in- stitutions, such as banks, insurance, canal, and turnpike compa- nies, &c. the mere owning of shares in the stock of the corpora- tion, gives a right of voting ; and a stockholder ceases to be a member by a transfer of stock. There is then this marked dis- tinction arising from the nature of the corporation. In the one case, a pecuniary interest is the evidence of membership ; whilst 406 SUPREME COURT [March Term, (Case of the Philadelphia Savings Institution. ) the affairs of religious, charitable or literary institutions, are committed to those who have no pecuniary interest whatever in their management. If this were a corporation of the former de- scription, it would greatly strengthen the argument of the respon- dent's counsel, but I cannot view it in that light, but look upon this and all institutions of a like kind, as partaking of the nature of a charity, where the professed object is to advance the inter- ests of the poor and helpless. The object of this institution is declared to be, to receive from time to time, from all persons dis- posed to entrust them therewith, such funds as may be deposited with them, and for which they are to pay to the depositors such rates of interest, as may be from time to time agreed upon by the directors. These deposits, as is well known, are made in small sums by the poor ; and the institution is professed to be more especially for their benefit. In aid of this object, and as subsidiary to it, the Legislature in the third section directs, that for the security of the depositors, &c., it shall be the duty of the persons before named, and of their associates, to raise a capital, &c. of not less than $200,000, in shares of $25 each ; which capi- r*4R71 ^ * 8 ^ ^ e a ^ * a ^ ti mes liable to depositors for the amount of their deposits and the interests. In other institutions of the like kind, the latter provisions are omitted : they were manifestly introduced into this charter, not for the benefit of the stockholders, but as an additional security or pledge to the depositors. As an inducement to make this in- vestment, in the sixth section, the corporation is authorized to invest its funds <: in public stocks of this State, or the United States, or real securities, or in the discount of notes and personal securities ;" and in the seventh section, the directors are author- ized to declare a dividend of the interest and profits of the cor- poration, after paying its expenses, and to pay it over to the stockholders, or their legal representatives. It seems to me, most clear, that the Legislature had no intention of establishing a joint stock company, but that there was a mere modification or change in the provisions usually inserted in the charters of savings fund institutions. But at any rate, these rules of construction only apply when the charter is silent. So that in this, as in every other case, we must look to the act itself, having regard to the particular nature and purpose of the corporation. In the charter there are an- tagonist interests ; the interest of the stockholders is in some measure in opposition to the interest of the depositors. It is for the benefit of the one to decrease, and of the other to increase the rate of interest on deposits ; and hence, there may be a pecu- liar propriety in the Legislature to entrust the control of the funds to persons who have no pecuniary interest in the corpora- 1836.] OF PENNSYLVANIA. 467 (Case of the Philadelphia Savings Institution.) tion. At least, I perceive nothing in this, of which the stock- holders have any right to complain. If the stockholders have the exclusive management of the institution, for which the respondents contend, a temptation is held out to divert the institution from its original and primary object and convert it into a bank, differing only in the fact, that it is a bank of discount and deposit, and not of circulation. Besides, if a pecuniary interest is the only cri- terion of membership, it may with equal plausibility be said, that the depositors are members also, and as such entitled to partici- pate in its management. In the first section it is enacted " that the persons therein named, and all and every other person or per- sons, hereafter becoming members of the Philadelphia Savings In- stitution, in the manner hereafter mentioned, shall be and are hereby created and made a corporation by the name and style of the Philadelphia Savings Institution." The manner in which they can become members, is pointed out in the fifth section. Among other matters, the directors have power to provide for the admis- sion of members and furnishing jjroofs of such admission. This, we conceive, to be inconsistent with the idea, that a stockholder is ipso facto a member of the corporation ; for if so why confer the power to provide for the admission of members ? The Legislature do not confine the power to furnishing proofs of the admission *of members, but they in express words, grant the r*jc-j power to admit members of the corporation. This we *- conceive, to be an authority to elect such persons as members, as they may deem best fitted to carry into effect the objects of the charter. The respondent's case also derives additional strength from the seventh section. A distinction is there taken between a member of the corporation, and a stockholder. It is made the duty of the directors to appoint from the members of the corpora- tion, five competent persons as a committee of examination to in- vestigate the affairs of the corporation ; and in the same section, to declare a dividend, &c. and to pay the same over to the stock- holders, or their legal representatives. Why, it has been asked, this change of phraseology, if a stockholder, as such, is a member of the corporation ? It is also worthy of remark, that the Legis- lature wholly omit to regulate the right of voting ; a regulation always introduced in all joint-stock incorporations. It is the uni- form policy to limit the number of votes to which stockholders may be entitled, in all such companies ; a limitation which would not have been omitted, had the Legislature conceived this to be an in- stitution of that description. Reliance has been placed on the word "associates," in the third section, which the counsel for the commonwealth says, must refer to stockholders. This is an argument not without plausi- bility. This section makes it the duty of the persons named in 4G8 SUPREME COURT [March Term, (Commonwealth r. Alburger.) the act, and of their associates, to raise a capital of not less than $200,000 ; but in what manner this is to be effected, is left to their discretion. It would seem to be the intention of the Legis- lature to give power to admit members before, as well as after the capital was raised ; and indeed they might have required the aid of others than those named, to effect this result. I see .nothing in the act which forbids this ; but I think a fair construc- tion of this part of the charter, shows that this power was intended to be given. If so, this is an argument to show that a monied in- terest, is not an indispensable condition of membership. It is said, that the directors have passed a by-law, that every member, who shall cease to be a stockholder, shall cease to be a member. Whether this be so or not, is of little importance ; for although the charter gives authority to the directors to admit members, there is none given to disfranchise them. A by-law may modify and change the constitution of a corporation, but cannot alter it. It may regulate in a reasonable manner, the exercise of a right in the internal affairs of a corporation, in the conduct of its members, or the mode by which a person is ad- mitted to the exercise of a right to which he has an inchoate title ; but it cannot take away a right, or impose any unreasonable restraint in the exercise of it. 2 Kyd on Corporations, 107, 122. Rules discharged. Cited by Counsel, 4 Casey, 350. Citctl by the Court, 3 Wharton, 247 [*469] ['PHILADELPHIA, APRIL 28, 1836.] TIIE COMMONWEALTH a./ain*t ALBURGER and Others. 1. The North-eastern square of ground in the city of Philadelphia, now called "The Franklin Square,'* was dedicated to public use by William Penn at the foundation of the city ; so that neither he nor any person succeeding to his title, as Proprietary, could afterwards grant the exclu- sive UHC of any part of the same to any person or corporation. A grant therefore, of a part of the Square in 1741, to a religious Corporation, for the purpose of a burying ground, was held to be void. 2. A grant will not be presumed of a part of a public square or street, from the lapse of time, so as to bar an indictment for a nuisance. 3. Copies of old rnajw ami plans of the City of Philadelphia, in the office of the Surveyor General, and certified by him, held to be admissible in evidence, on the question of the title to an open square in the city. 4. The "list of first purchasers," with the advertisement annexed, held to be admissible in evidence on the same question. 5. Historical books which have lx.'en generally received as authentic, are admissible as furnishing evidence of remote transactions. 1836.] OF PENNSYLVANIA. 469 (Commonwealth v. Alburger.) IN the Mayor's Court of the City of Philadelphia, at June Sessions, 1834, an indictment was found against John Alburger, William Bruner, and thirteen others, for a nuisance in the erection of a certain fence and wooden building upon a part of the north- eastern public square in the city of Philadelphia, called the Frank- lin Square. This indictment having been removed by certiorari, into this Court, the cause came on for trial at a Court of Nisi Prius, held by the Chief Justice, in the city of Philadelphia, on the 14th of March, 1836. It was alleged on the part of the Commonwealth, that the square of ground in question was given to the city of Philadelphia for public use, by William Penn, the Proprietary of Pennsylvania, at the foundation of the city. The defendants were the Trustees, Elders, and Deacons of "The German Reformed Congregation in the city of Philadel- phia," and claimed the exclusive right to the occupation of a por- tion of the said public square, under a warrant from Thomas Penn, the then Proprietary, dated the 18th of June, 1741, a survey made in December, 1763, and a patent granted in the same month and year. On the trial, the Commonwealth gave in evidence certain anci- ent documents and printed books, after objections made on the part of the defendants, which were overruled by the Court, viz.: 1. A certified copy from the Surveyor General's office, of a plan or map entitled "A portraiture of the City of Philadelphia, &c., by *Thomas Holme, Surveyor General," published r*47fn in London about the year 1683. 2. A certified copy from the same, of the "List of first purchas- ers," with an advertisement subjoined, upon the situation and extent of the city of Philadelphia. 3. A certified copy from the same, of an ancient general plan of the city, remaining in the Surveyor General's office. 4. A certified copy from the same, of Reed's map of the city. 5. A warrant to the German Lutheran Congregation, for a lot of land bounded eastward by "the public square," dated April 16th, 1776 ; and a patent for the same lot to the same, dated August 25th, 1781. 6. Part of a note to the 2d vol. of the Laws of Pennsylvania, by Charles Smith, Esq. containing an account of Holme's plan, and the list of first purchasers. 7. The book of minutes of the Board of Managers of the Penn- sylvania Hospital, containining certain instructions from the Proprietaries to the Governor of Pennsylvania, the remarks of the Board of Managers thereupon, and their letter to 470 SUPREME COURT [March Term, (Commonwealth v. Alburger.) Thomas Hyam and Sylvanus Bevan, dated 2d of 7 mo. 1752, in answer thereto. 8. A printed book called "Some account of the Pennsylvania Hospital," dated in 1754, containing the same documents. In the course of their testimony, the defendants offered in evi- dence the following documents, which were objected to on the part of the Commonwealth; and the Court refused to admit them, viz.: 1. A paper purporting to be certified by Peter Zachary Lloyd, Clerk of the General Assembly, and to be a copy of a report made by the Committee to whom was referred a memorial of the Trustees, Elders, &c. of this church, presented in 1782. 2. A paper purporting to be the copy of an opinion of William Bradford, Esq. on the right of the defendants to the occupation of the ground ; dated the 3d of February, 1783. A variety of evidence was produced on each side, relating to the original plan of the city, the alterations therein, and the acts and doings of the corporation of the city, and the religious cor- poration represented by the defendants. The defendants finally submitted to a verdict being taken against them on the charge of the Chief Justice in favor of the prosecution on all points, with leave to assign their reasons for a new trial, in order to have the full benefit of their defence in bank ; where the cause was to be considered on the whole evi- dence. Several reasons for a new trial were filed on the part of the de- fendants, relating 1st. To the admission or rejection of testimony. 2d. To the charge of the Court. r*4711 *The questions arising upon these points were elabo- J orately argued by Mr. W. M. Meredith and Mr. /. R. Ingersoll, (with whom was Mr. Olmstead,') for the Common- wealth, and by Mr. Randall and Mr. Sergeant, for the defendants. The principal topics of the argument being adverted to in the opinion of the Court, it is deemed sufficient to give the authorities cited on each side. On the part of the Commonwealth : 1. On the questions of evidence were cited Hunt v. Dippo, (1 Dall. 25;) 1 Starkie, 169; 2 Starkie, 167; Hill v. West (4 Yeates, 144 ;) Shield v. Buchanan, (2 Yeates, 119 ;) Ross v. Cutshall, (2 Binn. 402 ;) Blackburn v. Holliday, (12 Serg. & R. 140;) Lord Sussex v. Temple, (Ld. Rayd. 311 ;) Sturgess v. Waugh, (2 Yeates, 477 ;~) Read v. Jar IT son, (1 East, 355;) Cauff- man v. The Congregation, $c. (6 Binn. 59 ;) Bull. N. P. 95 ; 14 1836.] OF PENNSYLVANIA. 471 (Commonwealth v. Alburger.) East, 327, (note ;) Barnes v. Mawson, (1 Maule & Sel. 77 ;) Weekes v. Sparke, (Ld. 679.) 2. On the question of the title of the defendants, Common- wealth v. M'Donough, (16 Serg. R. 390 ;) Rung v. Shone- berger, (2 Watts, 23 ;) Western University v. Robinson, (12 Serg. & R. 29 ;) Pennant's Hist, of London, 234 ; Harper v. Charles- worth, (4 Barn. & Ores. 574 ;) Justin. Inst. Book I. tit. 6, 1 ; Cod. Book VII, tit. 38, 2 ; 1 Domat. 271, 273 ; 2 Domat, 174 ; Erskirie's Inst. 519, 525; Arundel v. M'Cullough, (10 Mass. Rep. 70 ;) Nickerson v. Brackett, (Id. 212 ;) Staughtonv. Baker, (4 Mass. Rep. 528 ;) Weld v. Harnby, (7 East, 195 ;) Rex v. Cross, (3 Campbell, 227 ;) Doe v. Reed, (5 Bam. & Aid. 232 ;) G-oodtitle v. Baldwin, (11 East, 488 ;) Hylton v. Brown, (1 Wash. C. C. Rep. 204;) Allen v. Lyons, (2 Wash. C. C. Rep. 475 ;) Penn's Lessee v. Klyne, (4 Dall. 403 ;) Commonwealths. Passmore, (1 Serg. & R. 217 ;) 1 Leon. 190 ; Chamberlain of London's Case, (3 Leon. 265 ;) Rex v. Ld. G-rosvenor, (2 Starkie's Rep. 511 ;) 1 Wm. Black. 591 ; 1 Proud's Hist, of Penn. 169, 242; Howell v. Barclay, (6 Peters' Rep. 512;) Melbyn v. Whiting, (10 Picker, 295;) Cortelyouv. Van Brunt, (2 Johns. Rep. 362 ;) Packard v. Williams, (7 Wheat. 109 ;) Emerson v. Wiley, (7 Picker, 68 ;) Conn v. Penn, (1 Peters' C. C. Rep. 514 ;) Blundell v. Catteral, (5 Barn. & Aid. 268 ;) Cor field v. Cory ell, (4 W. C. C. R. 379 ;) Kean v. Rice, (12 Serg. & R. 209 ;) Arnold v. Munday, (1 Halsted, 71 ;) HaWs Case, (1 Ventris, 169 ;) Kirk v. Smith, (9 Wheat. 282 ;) Mayor, c., of New Orleans v. The U. States, (Sup. Ct. U. S. 1836, MS. ;) Act of loth April, 1782 xi. (2 Smith, 48;) Freytagv. Powell, (District Court Philad. MS.*) *0n the part of the defendants, were cited, r*1791 1. Act of 31st March, 1823, (Purd. 382 ;) Biddle v. Shippen, (1 Dall. 19 ;) Morris v. Vanderen, (1 Dall. 67 ;) Packer v. Gronsalus, (1 Serg. & R. 626.) 2. 2d. Proud's Hist. Penn. 41, 53; Pennant's London, 233, 4; Watson's Annals of Philadelphia, 155, &c. ; King v. Ward, (Cro. Car. 266 ;) Newmarch v. Brantley, (3 Swanst. 99 ;) 2 Selw. 503, n. ; Woodyear v. Hadden, (5 Taunt. 126 ;) Rex v. Lloyd, (1 Campb. 263, n.;) M l Connell v. Lexington, (12 Wheat. 585;) Maclay v. Work, (5 Binn. 157 ;) Town of Pawlett v. Clark, (9 Cranch, 331 ;) City of Cincinnati v. White, (6 Peters' Rep. 431 ;) Maclay v. Work, (5 Binn. 157 ;) Barter v. The Commonwealth, (3 Penn. Rep. 253 ;) New York Fire Ins. Co. v. Sturgis, (2 Cowen, * This case being frequently referred to, I have obtained a note of the decision through the kindness of Judge Pettit, and shall insert it in the ap- pendix to this volume. REP. 472 SUPREME COURT [March Term, (Commonwealth D. Alburger.) 604 ;) Head v. The Providence Ins. Co. (2 Cranch,127, 166;) Mat/ill v. Brown, (C. C. U. S. Perm. Pamphlet ;) Duke on Uses, 174 ; Stat. 43 Eliz. cap. 4, 6, 2 Ruff head, 709 ; 9 Peters' Rep. 960 ; 2 Anstruther, 617 ; Doe v. Wilson, (11 East, 56 ;) Roe v. Ireland, (11 East, 280 ;) 12 Rep. 5 ; 3 Dow's Rep. 112 ; King v. Nevile, (Peake's N. P. C. 91 ;) King v. Smith, (4 Esp. N. P. 109 ;) lliwrd v. Williams, (7 Wheat. 109 ;) Barclay v. How ell (6 Peters' Rep. 498, 512 ;) Jackson v. M'Call, (10 Johns. Rep. 380;) Jai'kson v. Lunn, (3 Johns. Gas. 117;) Beardsley v. French, (7 Conn. Rep. 125 ;) Mather v. Trinity Church, (3 Serg. & R. 510;) Somerville v. Holliday, (1 Watts, 514;) Sugdcn Vend. 480 ; CW v. Jack, (3 Watts, 238) ; Le Fevre v. j& Fevre. (4 Serg. & R. 244 ;) Werkheiser v. Werkheiser, (3 Rawle, 326 ;) Prevost v. (rrate, (6 Wheat. 491.) The opinion of the Court was delivered by SERGEANT, J. This is substantially a question as to the right of property in a portion of one of the public squares of this city, and has been discussed with a learning and ability proportioned to its importance. The right it involves, is of a peculiar kind, and for ite determination, requires an investigation into the origin and early history of the city, as well as a notice of several later transactions of the proprietaries, the commonwealth who suc- ceeded to their rights, the city corporation, and the defendants or their predecessors. It appears that William Penn, in July 1681, after obtaining a charter for the province, deeming a large town or city within its bounds, essential to the success of his enterprise, by the first article of the conditions or concessions agreed upon in England, stipulated with those who embarked with liim in the project, and purchased large quantities, of land in Pennsylvania, commonly called first purchasers, that on their arrival here, a certain quan- tity of land, or ground plat should be laid off for a large town or city in the most convenient place on the river, for health and navigation ; and by article 5, that the proportion of ground therein should be ten acres for every five hundred acres of land purchased, (or two per cent.) if the place would allow it. Intending \*-"\~\ liberally to fulfil his engagement, he appointed *Thomas Holme (his surveyor-general) and others, commissioners to lay out a city of ten thousand acres. A town on such a scale, however, would have scattered the inhabitants over many miles, and defeated the chief design of a city, which was, that it might be the residence of the merchants, gentlemen, artisans and others, who accompanied him, and had been accustomed in Eng- land to a town life ; the centre of legislation, trade, arts, and sciences in the new colony, and the germ of its civilization. On 1836.] OF PENNSYLVANIA. 473 (Commonwealth . Alburger.) his arrival here, therefore, and consultation with such of the first purchasers as were present, Thomas Holme, under his direction in 1683, formed the present plan of Philadelphia, assigning to the first purchasers smaller lots on the streets, and adding, as a fur- ther compensation, larger tracts of what were called 'liberty lands,' lying outside of the city, northwardly and westwardly, as appurtenant to their purchases in the country. The site of the city, its length and breadth were then fixed, and have since re- mained the same. The plan Avas engraved, and impressions taken for the use of those interested. It is entitled, "A Portraiture of the City of Philadelphia in the Province of Pennsylvania in Amer- ica, by Thomas Holme, Surveyor-General, sold by John Thornton in the Minories and Andrew Sowle in Shorediteh, London." A copy of this plan, certified by the surveyor-general to be a copy of an ancient general draught called a plan of the city of Phila- delphia, remaining in the surveyor-general's office, and purporting to be that made by Thomas Holme, was produced on the trial, and objected to as not evidence. But it was undoubtedly evi- dence, being a copy of an official paper on file in the proper place, of great antiquity and public importance. A copy of another an- cient plan remaining in the office, was also produced, which is evi- dence on similar grounds. In Hurst v. Dippo, (1 Dall. 20;) the list of first purchasers was admitted in evidence, to prove a grant of 5000 acres from William Penn, by deed alleged to be lost. In Morris v. Van- deren, (1 Dall. 64;) to prove title to a city lot, a copy from the Surveyor-General's office of the same paper, was received. In Kingston v. Lesley, (10 S. & R. 387 ;) Tilghman, C. J. says, it has often since been received: and on the same grounds the Court then admitted in evidence a paper certified by the Sur- veyor-General, to be a true copy of a list of the first grantees or renters from the proprietaries, extracted from book No. 31, re- maining in the office. The book, the Chief Justice says, which contains the list in question, " is among the public books pre- served in the Land office ; and the list itself, it must be presumed, was made out from ancient papers, many of which may now be lost, or perhaps are not in existence. It may be presumed too, that it was made out as a matter of public convenience, and not with a view to private evidence." "Formerly," it is said in Ream v. The Commonwealth, (3 S. & R. 209;) "they were in the cus- tody of the proprietaries and their officers, but since the Com- monwealth became *a sovereign state, the books of the r*474i land office have been committed to the charge of officers *- appointed under the authority of the government;" and by the act for establishing a land office, passed the 9th of April, 1781, copies of all their records and papers are made as good evidence 474 SUPREME COURT [March Term, (Commonwealth v. Alburger.) as the original. A copy, therefore, of a map of the city, remaining in the Surveyor-General's office, as one of the records or papers of that office, received and accredited by the officers as authentic, and proved to be so considered, and to be an ancient paper, of course handed down by the proprietary's officers from early times, relating to its public and official acts, is evidence. Indeed, it stands exactly on the same footing with the list of first purchasers : for this list merely refers to numbers "in the city draught," without which, their situation could not be found, and the list itself, would be unintelligible and useless, and the title lost. The presumption is, that these maps were placed there by the proprie- tary or his officers, as public documents for the benefit of all con- cerned, in a matter of great public importance. They have been placed where they ought to have been, in the source and deposi- tory of all matters relating to the origin of land titles in Pennsyl- vania, superintended by a public officer of the highest authority, and open to public inspection, where cA'ery person might 'resort for information as to land titles. Even a survey adopted by the land office, though not made by the regular officer, is evidence ; Shields v. Latta, (2 Yeates, 219 ;) it being considered by the Court enough, in order to justify their being read to the jury, that they had been accepted into the Surveyor-General's office, acknowledged by the receiver-general, and recognized by the board of property: and in Itogg v. Cut shall (1 Binn. 402,) the articles of agreement between Lord Baltimore and the proprie- taries, dated the 4th of July, 1700, acknowledged before a master in chancery, and enrolled in chancery in England, not proved, nor recorded here, were admitted ; the Court saying it was an ancient deed, and might be considered in the light of a state paper well known to the Courts of justice, and which has been admitted as evidence on former occasions. Now the first of these plans lays down the streets of the city and the five public Squares, lying across the streets, so as not to be mistaken or confounded with the rest of the ground assigned for lots or left vacant. The lots of first purchasers are marked on the plan by numbers. In three of the Squares, the lots run up to them, and in front of them, giving ten lots on the. south and east of the north-east public Square ; six lots on the north and east of the south-east public Square ; and five lots on the north and west of the south-west public Square; but no lots are placed upon the Squares. So the lots continue along High street to the Centre Square, both from Delaware and Schuylkill Front streets, but stop at its Iwundaries. The second plan agrees with the former ; but in addition, the north-east and south-east Squares P* ,- - -| have written on their face " eight acres for public *uses ;" the north-west, " eight acres given for public uses by Wm. 1836.] OF PENNSYLVANIA. 475 (Commonwealth v. Alburger.) Penn, Esq.;" the south-west, " eight acres allotted for public uses, &c." On the Centre Square is written " Centre Square ten acres." This is strong evidence to show that these spaces of ground were laid out as squares for public uses, "distinct from the streets and lots and other property in the city bounds, when the original plan of the city was made by its founder. The advertisement annexed to the list of first purchasers, stands on the same footing as the list itself. After describing the site of the city and its advantages, it says, "in the centre of the city is a square of ten acres ; at each angle are to be houses for public affairs, as a meeting house, assembly or state house, market house, school house and severally other buildings for pub- lic concerns. There are also in each quarter of the city a square of 8 acres, to be for the like uses as the moorfields in London." Moorfields were secured to the city of London by charter, dated October 16th, 1638, from being built on, and that they should be put to such like common and public uses, as they had been and were used for. Another proof of the same facts and of the strongest charac- ter, is a letter from Wm. Perm to the society of free traders, (who were first purchasers,) dated August 16th, 1683, in which he writes thus : " Philadelphia, the expectation of those that are concerned in this province is at last laid out, to the great content of those here, that are any ways interested therein. I say little of the town itself, because a plat from it will be shown to you by my agent, in which those who are purchasers of me will find their names and interests" This letter is quoted from Penn's works, by Mr. Smith, in his edition of the laws printed by the au- thority of the Legislature ; and may be found in Proud, and var- ious other historical works ; and of such ancient historical docu- ments, proceeding from a public source, there is no other evidence to be had after the lapse of time. There is no better evidence that I know of, of the concessions or agreement of Wm. Penn, with the first purchasers, than that they are contained in histories and books, and have been treated as authentic from the beginning. A general history may be admitted, to prove a matter relating to the kingdom at large. B. N. P. 248; 1 Phil. Ev. 338. In the case of St. Katharine's Hospital, Lord Hale allowed Speed's Chronicles to be evidence of a particular point of history in the time of Edward III. (Ib.) Chief Justice Pemberton saying lie knew not what better proof they could have. In Neale v. Fry, (cited 1 Salk. 281,) to prove a forgery of a deed, chronicles were produced and admitted in evidence to show the time when the Council of Spain received the surrender by Charles V., and his son Philip took his titles upon him.* *See 2 Barr, 243. 475 SUPREME COURT [March Term, (Commonwealth t>. Alburger.) That five public squares were thus laid off by the founder and the first purchasers here, in the original plan of the city in 1683, and were then dedicated to public uses, is thus a fact as clearly r*l7fi1 established as *any ancient fact can be by evidence ; es- pecially as no plan or draught or statement to the con- trary, has ever been made or suggested, in those times or for a long time after. If there is any fact in the history of the city universally acknowledged without question, by its inhabitants, by its founder, its historical writers, its maps and plans, and owners of property, and settlers, it is that Penn laid off five public squares for public uses. And as we have the matter further, the fact ap- pears more and more confirmed. Wm. Penn's second visit here, was sixteen years after his first departure. During that period, a change had occurred in public affairs in England, and in his private circumstances and feelings, as well as in the city and province. Matters of property here de- rived a much greater interest from these causes ; and transactions then occurred which have been introduced in this case, and have an important bearing on the question before us. In the same plan of the city, which appears to have been familiar to all, and was the basis of their correspondence and acts, there was a tract lying between the Delaware Front street and the river, the whole breadth of the city, called the river Front or Bank; on which, in the plan no lots were laid off. The lot holders on Front street, who were among the most influential of the first purchasers, had claimed a right to the bank fronting them, beyond the street, down to the water, to build and use as they pleased, probably as a sort of riparian owners, and sent a remonstrance and address to Penn to that effect. But he denied this pretension, stating that they were bounded by Front street, that the rest of the ground next the water, belonged to front lot men no more than back lot men, that against the street common wharves might be built, but into the water and shore was no pur- chaser's right. He moreover stated that the top of Front street should be a common exchange or walk. And accordingly, as early as 1684, the next year after the plan, (and perhaps sooner, for we have had but a few patents produced,) he sold lots on the Bank, restricting the purchasers from raising their buildings higher than four feet above the level of Front street, (provided subsequent purchasers were so restricted,) and reserving an im- proveable ground rent of one-third of the value at the end of fifty -one years. In 1690, however, sales were made without this restriction, and King or Water street was regulated. The whole bank was afterwards sold out, the purchasers being bound to maintain certain stairways from Front street to the river. As this tract, however, lay on the water, certain points of it were 1836.] OF PENNSYLVANIA. 476 (Commonwealth v. Alburger.) from the first settlement, used as landing places, and indeed, were then the neighborhood of the first residents. These were the Blue Anchor, (now the Drawbridge,) and the Penny Pot House, (now the corner of Vine street;) and being used constantly as such, Avere not, it would seem, sold to ajiy individual, but became indispensable for access to the city, and were employed for that purpose. *So in the original plan, there lay northward and south- r*j.77n ward of High street, a considerable space of ground, on - which no lots were laid oft' at all, there being no first purchasers entitled to them; and many others to the westward were never taken up by those they were assigned to. A discontent seems to have existed, that they were not given as the property of the city, and the idea is even intimated that by the concessions, Wm. Penn was to give the first purchasers a city, and therefore these be- longed to them in common. But the concessions themselves do not justify this idea; they are that a certain quantity of land or ground plat, should be laid out for a large town or city, and that every adventurer or purchaser, should by lot have so much therein as would answer to his proportion of land. And .Wm. Penn's own letter to the society of Free Traders, states that the city was laid out to the full content of all concerned. And in his answer to the assembly in 1701, he alleges the consent of the first purchasers here to the re-aplotment, and in that, each purchaser's share is lotted and bounded, and the rest was made up by liberty lands. At the same time it may not be improbable, that the gift of the squares containing 42 acres, was a kind of satisfaction for this ex- pectation which some had entertained, though without any engage- ment to that effect on his part. The river front ceased to be an object of discussion: but the streets, and the commons, as they were called, remained so ; and a further cause of complaint was the quit rents reserved on the lots laid out. A correspondence occurred between William Penn and the assembly just before his departure, in which these subjects were finally adjusted, and a charter was given to the city of Philadelphia, specifically naming them, and ascertaining the rights of the city. This correspondence is to be found entire in the 1st volume of the Votes of Assembly, 145, 148, and I shall extract such parts as relate to them. The eight! item of the address of the Assembly to Wm. Penn, in 1701, (incited by an address from the inhabitants of Philadel- phia,) is thu,'.: "VIII. That whereas the proprietary formerly gave the purchasers an expectation of a certain tract of land, which is since laid out about -two miles long and one mile broad, whereon to build the city of Philadelphia, and that the same should be a Jree gift, which has since been clogged with divers 477 SUPREME COURT [March Term, (Commonwealth r. Alburger.) rents and reservations, contrary to the first design and grant, and to the great dissatisfaction of the inhabitants, we desire the gov- ernor to take it into consideration." He answers, *' you are under a mistake in fact. I have tied you to nothing in the allot- ment of the city, which.the first purchasers then present did not seem readily to comply with, and I am sorry to find their names to such an address as that presented to you, who have got double lots by my re-aplotment of the city, from 50 to 102 feet front lots. And if they are willing to refund the 52 feet, I shall, as r* .1781 y ou desire, be easy in the quit rents, although this *mat- J ter solely refers to the first purchasers, and to me as proprietary." The 9th item of the Assembly address, is, " That the land lying back of that part of the town already built, remain for common, and that no leases be granted for the future to make enclosures to the damage of the public, until such time as the respective owners shall be ready to build or improve thereon; and that the islands and flats near the town, be left to the inhabi- tants of this town to get their winter fodder." Answer. " You are under a misapprehension to think that a fourth part of the land laid out for a city, belongs to any body but myself, it being reserved for such as were not first purchasers, who might want to build in future time. And when I reflect upon the great abuse done me in my absence, by destroying of my timber and wood, and how the land is overrun with brush, to the injury and dis- credit of the town, it is small encouragement to grant your re- quest. However, I am content that some land be laid out for the accommodation of the town, till inhabitants present to settle it, under regulations that shall be thought most conducing to' the ends desired; about which I shall consult with those persons chiefly concerned therein. And for the rest of the 9th article about the islands, I know not which you mean, nor on what terms desired, it being an independent property from the town, if not from the province." The 10th item of this address, is, "That the streets of the town be regulated and bounded, and that the ends of streets on Dela- ware and Schuylkill be unlimited, and left free to be extended on the river as the inhabitants shall see meet ; and that public land- ing places, at the Blue Anchor and Penny Pot House be con- firmed free to the inhabitants of this town, not infringing on any man's property." Answer. "About the ends of streets and other public landings of this town, I am willing to grant the ends of streets, Avhen and where improved, and the other according to your request." There was here then an understanding on these disputed points, how far the proprietary would grant them to the city ; and as 1836.] OF PENNSYLVANIA. 478 (Commonwealth v. Alburger.) he was about departing for England, the inhabitants set about procuring a charter, in which they should be solemnly recognized and settled forever. Accordingly, he granted the city a charter, dated the 25th of October, 1701, in which they are inserted. It ordains, among other things, that the streets of the city shall for- ever continue as they are now laid out and regulated : and that the end of each street extending into the river Delaware, shall be and continue free for the use and service of the said city and the inhabitants thereof, who may improve the same for the best advantage of the said city, and build wharves so far out into the river there, as the Mayor, &c., shall see meet. It then provides, by various clauses in the common style to incorporate them, and vest them with various franchises ; and in the close, are these provisions : *" And I do also ordain, that the landing places now r*47q-i and heretofore used at the Penny Pot House and Blue L Anchor, saving to all persons their just and legal rights and properties in the land so to be open, as also the swamp between Budd's buildings and the Society hill, shall be left open and com- mon for the use and service of the said city and all others, with liberty to dig docks and make harbors for ships and vessels, in all or any part of the said swamp." " And I do hereby grant, that all the vacant land within the bounds and limits of the said city, shall remain open as a free common of pasture, for the use of the inhabitants of the said city, until the same shall be gradually taken in, in order to build or improve thereon, and not otherwise. Provided always, that nothing herein contained shall debar me or my heirs in time to come from fencing in all the vacant lands that lie between the Centre Meeting House and the Schuylkill, which I intend shall be divided from the land by me allotted for Delaware side, by a straight line along the Broad street, from Edward Shippen's land through the Centre Square, by Daniel Pegg's land ; nor shall the fencing or taking in of any of the streets happening to be within that enclosure, on Schuylkill, be deemed or adjudged to be an encroachment, when it shall not interfere or stop any of the streets or passages leading to any of the houses built or to be built on that side, any thing herein contained to the contrary not- withstanding." Thus was there obtained from William Penn, a grant of the landings specified, and the landings at the ends of streets, and what was necessary to the enjoyment of the latter, the perma- nence of the streets as laid out: and as to the commons, only a right to enjoy them till improved, with an express reservation to him, of a right to fence in all to the westward, except so far as they stopped the passages to buildings by owners claiming or VOL.:. 32 479 SUPREME COURT [March Term, (Commonwealth t. Alburger) to claim under him. But nothing was said in this charter about the squares ; because there never had existed any dispute in relation to them. No one, the founder of any other, from the year 1083 to 1701, claimed a right in them different from the known appropriation in the plan of the city. Charters are com- monly for the purpose of granting franchises and corporate privileges, not for the transfer or securing of property. But sometimes, when a doubt or dispute has existed as to rights to property, they are used to declare and secure them, as here was done in reference to claims disputed. But the public squares were not necessary to be inserted, simply because they had never been questioned or doubted. They were -known to have been dedicated by the founder with as much certainty and solemnity, as the city bounds or the lots of the first purchasers, and had the same evidence of their existence. I do not, there- fore, consider the omission to insert the squares in tke charter as any argximent against their being granted by the founder in the manner above stated. But it is observable that, though r*lftl ^ey are not granted, there is in this charter *an ex- J press reference to one of them by name ; for in the clause relating to the commons, Wm. Penn expressly declares his intention to divide the lots on the Schuylkill side, from those on the Delaware side, by a straight line along Broad street, " through the Centre square." The Centre square is here recog- nized as known to all : it was one of five, and stood on the same foundation as the rest ; and the recognition of one, nothing to the contrary appearing, is tantamount to a recognition of all. In 1700 we had another transaction, in which the existence of these squares is expressly recognized by the commissioners of property. On the application of the corporation of Philadelphia, a patent was issued to them for the chief part of the South-east public square ; which as well as the previous warrant, recites its "being one of those squares, which at the original plotting of the said city, were intended for public uses," coinciding with all that we have previously found in relation to them. It is said, however, that the word here i" " intended," and not dedicated, and that though intended, the title never passed till something further was done, and the proprietary might withhold that further act. But there was not only such an intention in the founder ; there were his solemn acts and letters, which show that it was already laid out in his plot of the city, in concert with the first purchasers, and proclaimed to all the world, first purchasers, as well as future purchasers, as part of the plan. It would be a fraud in a founder of a town or city to form a plan in concert with those who bought of him, and thereby profess to lay out a part for the public use, and then attempt to withdraw it. He 1836.] OF PENNSYLVANIA. 480 (Commonwealth u. Alburger.) could no more do so than he could withdraw their lots after they were assigned to them. The enjoyment of these privileges was part of the consideration of their agreeing to the plan ; and any open attempt by the proprietary to do so, would have heen in- stantly resisted. William Penii himself, however, whose virtue and talents will always place him among the great men of his age, never attempted thus to act. Though tenacious as to his property, on his second visit in 1701, occasioning thereby much discussion on the subject of city property, no expression, act, or suggestion of his is found during that time or afterwards during his life, man- ifesting a thought of withdrawing or curtailing his gift of these squares in 1683. They were the only grant to public uses which he made at his first visit: at the second the assembly obtained a few further privileges, but he refused their more important re- quests. Nor can I consider this patent as the acceptance of a new grant by the city from the proprietary's commissioners of property, and therefore an evidence, that the property remained at his dis- posal till he chose to confirm it by a formal conveyance. The original dedication was a grant of the most solemn and indelible character, and could receive no confirmation from any subsequent act of the proprietary *or his agents. Considered in r#4.Q-j n this point of view, the patent was a matter of superero- *- gation. But there was another object for which this patent might well operate. The public uses were not defined, and they are here declared by the bestowers of the gift on the one hand, and the corporation, its guardians, on the other, namely, in the first instance, for a public burial-ground, not confined to the bene- fit and emolument of any one religious corporation, to the exclu- sion of others, or to any class of persons or people of any nation, but for everybody for the public. And in the then state of the city, this was a proper use to be made of in the square, furnishing a decent burial to the stranger and the poor. It lay far west of the city buildings, which were then confined chiefly to Water and Front streets: the whole around it was open or covered by wood and brush. But the patent itself is carefully drawn so as to recognize the ulterior uses which the public would require, and which are the same, no doubt, as were in the contemplation of William Penn in 1683, whose enlarged views were not limited to the present, but looked to the interests of future generations. It was to be "for a common and public burying place, for the service of the city of Philadelphia, for in- terring the bodies of all manner of deceased persons whatsoever, whom there shall be occasion to lay therein;" but this was not all, it is declared that, " for the further improvement of the said burying place, he grants full and free liberty to the mayor, &c. 481 SUPREME COURT [March Term, (Commonwealth v. Alburger.) to enclose, fence, plant, build, or by any other ways or means whatsoever, to improve the aforesaid piece of ground, as they from time to time should see convenient." This early recognition of its uses by the personal friends and confidential officers of Wil- liam Penn, shows the understanding at that time. It continued a potter's field down to the revolution ; but since then the progress of the city up to it and beyond, has rendered such an use of it no longer proper, and demanded the ulterior use, that of setting it apart as a source of air, recreation, and or- nament, and a spot' of incalculable value as such in the midst of a population already dense, and daily increasing in number and closeness of buildings. From this time down to the year 1741, we hear nothing more about these public squares. William Penn died in 1718, his sec- ond son, Thomas Penn, was then a minor: the province had here, as governors, none of the family until 1732, when Thomas Penn arrived, and on behalf of his brothers John and Richard and him- self, assumed the place of governor. In 1741 several transactions occurred relating to two of these squares, in which Thomas Penn undertook to make dispositions in regard to some of them as his property, alleging that they were reserved as such by his ancestor William Penn, or were vacant ground. On the 1st of June, 1741, he issued the warrant, which is the foundation of the claim of the defendants, to a por- tion of the North-eastern public square. This warrant is signed F*4R21 ^ Thomas *Pcnn, and is directed to Benjamin Eastburn, Surveyor-General, and recites, that " whereas Philip Bohm and Jacob Seigel had requested that we would be pleased to grant them to take up, in trust for and for the use of the German Congregation in the city of Philadelphia, a vacant lot or piece of ground within our said city, situate between the Sixth and Seventh streets, bounded northward by Vine street, eastward and westward by vacancies, and southward by the ends of Sassa- fras street lots, containing in length north and south 306 feet, in breadth, east and west 150 feet, for which they agree to pay to our use the sum of .50 sterling, together with the yearly quit rent of 5 shillings sterling, or value of the said quit rent in coin current, &c." and then requires him to survey the said vacant lot and make return. In January, 1745, .13 sterling, 4 years in- terest, and 4 years quit rent were paid to the Receiver-general, stated in the receipt to be " due on a lot between Sixth and Seventh streets, now in the possession of the German Congre- gation." On the 9th Dec. 1763, a month or two after the arrival of John Penn, grandson of the proprietary, the sum of .189 7 was paid to the proprietary in full for the lot: and on the 14th December, 1763, a patent issued. A survey had 1836.] OF PENNSYLVANIA. 482 (Commonwealth . Alburger. ) been made two days before the patent issued, viz. on the 12th December, 1763, as appears by a note written within the lines of the lot, marked on a diagram filed in the surveyor-general's office, and signed by John Lukens, Surveyor-General, as follows: " See a warrant granted to Philip Bohm and Jacob Seigel, dated 18th June, 1741, surveyed 12th December, 1763, and returned the same day into the Secretary's office for the German Congre- gation." If this square were really a vacant lot as here stated ; if it were one of those not allotted to the first purchasers, nor granted to any subsequent purchaser, nor dedicated to the public, then undoubtedly Thomas Penn, as the representative of the proprie- tary's family, the heirs of William Penn, had a just and perfect right to sell and dispose of this lot or any part of it to such per- sons and for such prices as he thought proper. But if it was, as it appears to be established by the clearest and most indisputable proof, by the concurrent act and consent of his father, of the first purchasers, and all subsequent inhabitants and purchasers within the city of Philadelphia, given or set apart in trust for public uses in the original plan of the city, by which all rights were regulated and adjusted, and were inherited, transmitted and enjoyed ; it was not vacant ground : it was sacredly appropriated : and he had no more right to grant away a foot of it than he had to sell over again a lot assigned to a first purchaser and patented to him. This assertion that it was so, as well as another trans- action about the same time, which will be afterwards mentioned, may lead us to believe, that he really thought he had the right. But his assertions that it belonged to him as vacant or as a reservation, are no evidence of the fact: and have no weight against the conclusive evidence to the contrary. And whatever *may have been his view of the matter, we have evidence r*iGQT in this cause, that the knowledge of the original desti- L nation of these squares continued to be perfectly well known te the citizens of Philadelphia, and that their feelings were alive to their importance. For we have evidence, (and to show, that this claim of the proprietaries was not acquiesced in by the public, it is good evidence,) that he, in 1751, then in England offered a large portion of the residue of this square, and actually conveyed it to the Pennsylvania Hospital by patent, calling it therein, " a square of vacant land," and alleging that it was "reserved" to the proprietaries. This grant the managers, (Joshua Crosby, Benjamin Franklin, Thomas Bond and others, of the most intel- ligent and influential citizens of the time,) declined receiving ; stating the place to be unwholesome and not adapted to their purpose, yet intimating in the strongest manner which their rela- tion to him permitted, that he had no right to dispose of it. They 483 SUPREME COURT [March Term, (Commonwealth t>. Alburger.) say in their remarks, (which with their letter was presented to Thomas Penn,) after noticing its unhealthiness and unsuitable- ness " besides, as it is part of a square allotted by the late Hon. Proprietary for public uses, as the old inlipx of the city will show, our fellow citizens would tax us with injustice to them, if we should accept of this lot by a grant from our present proprie- taries, in such terms as would seem to imply our assenting to their having a right to the remainder of the square." And in their letter in 1752, they state their having had a survey, and found it unhealthy, and that " the dissatisfaction which appeared and still subsists among our fellow citizens on the proprietaries claiming a right to make that grant, is so great, that if there were no other objection, we would not run the risk of increasing it." And again, they conclude, " we shall rather endeavor to purchase a lot on a proper situation than to build the house in an inconvenient place, or to accept of any lot on such terms as we know would give a general dissatisfaction." This is ample evi- dence that the citizens of Philadelphia, at that day, knew the foundation of their rights to these lots ; that dissatisfaction already prevailed, and would be increased by an attempt by the proprietary to withdraw them, under the idea that they were- vacant or reserved. And the date of the payment shows, that Thomas Penn never received the consideration money, but its payment was delayed for 22 years until just after the arrival of his nephew, John Penn, personally a stranger to all that had occurred. There is another example of a similar kind, on which much ob- scurity rests ; but it does appear by documents referred to on the trial and argument here, that at or about the same time as the grant to the defendants, the proprietary conveyed the origi- nal North-west public square to James Hamilton, whose liberty lands seemed to have joined it, and under whom it has been since held. But it also appears, that ample compensation was made for it to the public, by the appropriation of another square by the F*4841 P ro P r i etar y' 8 ""officers a little further to the westward which lias from that time stood in lieu of it. This fact, so far as it goes, is strong evidence that the proprietary, Thomas Penn, and his officers, considered themselves bound, if they took away one square, to substitute another equally valuable, thereby recognizing the public right. The opposite square, the South- west, and the Centre square were also moved the same distance westward ; and a change made in the streets running north and south, beyond Eighth street ; substituting fourteen streets east of Broad street, and eight west of Broad street, instead of eleven east and eleven west of it, as they formerly stood. It is possi- ble the grant of the original North-west square to Hamilton made 1836.] OF PENNSYLVANIA. 484 (Commonwealth v. Alburger.) it necessary for the sake of uniformity, to shift the South-west and Centre squares ; though another motive is attributed by Read in his book. But whatever may have been the reason, the public interests were not injured by it ; they received the same number of streets and squares, and it has never been questioned : indeed it is only in one book we find any notice of it. (See Read's, ex- planation of his map.) But as to the North-east square, the one now in question, no change of situation has ever been made : it stands where it did in . the original plan of the city ; the public uses uninterrupted from 1683 to the present day, except so far as it was occupied by the defendants. We have no further evidence in this cause, until the year 1.774, when John Read (above referred to,) made a map of the city and liberties, in which the lots, streets and public squares of the former, and the site and boundaries of all the liberty lands, with various particulars relating to the foundation of the city, and the titles of first purchasers, prior titles of the Dutch, Swedes, &c. are laid down. This map is on file in the office of the Secretary of the Commonwealth, and has been objected to as not being evi- dence. It exhibits great research arid industry. Its plan of the city coincides with the original one, in laying down the public squares, and marking them as given to public uses. His book, called an explanation of his map, which is denied to have been given in evidence, exhibits the same labor ; but the controversial spirit pervading it, detracts from the weight it would otherwise possess, as an authority. I lay no stress upon either of them in the decision of this case. The next period at which we find any evidence, is the year 1776, when it appears the German Lutheran Congregation pur- chased of the proprietary, a lot of ground lying westward of the south-east public square ; and John Lukens made a survey for them returned into the office, in which he marks the ground east- ward of them as " A public square." As evidence to affect the defendant's title directly, this would not be operative, because it was long after the date of their grant : but as evidence of the proprietary's officer, the Surveyor General under them, that this ground was reputed in the Land office, to be of that character at that day, it is evidence. General reputation, is evidence of a public right, 1 Phill. Ev. 205 ; and it goes *also to show r^ioc-i that the claim of the proprietary to treat this lot as *- vacant, was not acquiesced in. But it is said that the Commonwealth after the revolution, when they succeeded to the domains and rights of the proprie- taries, deemed this square to belong to them, and treated a portion of it as such : and hence it is argued, that if the com- monwealth as representative of the proprietaries, had this right, 485 SUPREME COURT [March Term, (Commonwealth e. Alburger.) the proprietaries had it before them. The facts appear to be, that the only interest the commonwealth had in it was a powder magazine erected on a part of it, which the parol evidence shows was there in 1784, and afterwards : and by a resolution of the legislature in 1791, they directed the possession of it to be de- livered to the corporation of the city, for storing oil for lamps, until otherwise disposed thereof. This shows no more than that the build in ij belonged to the commonwealth, who had probably erected it during the war, and that they held it at their disposal. But there is no evidence that they did not build and occupy it with the consent of the city : and as the city occupied all the rest for hay-scales, or paving stones, the presumption would be that they did. The use as a powder magazine was a public use, of paramount importance at that time ; and if the commonwealth erected the building, they had the control of it. But there is no evidence that they claimed a right to the square itself, or any part of it, as their exclusive property, by succession to the pro- prietaries ; or attempted to divert it from the purposes for which it was first set apart. Their temporary occupancy was for a public use, and so far consistent with the original grant by Wil- liam Penn : as was that of the city afterwards for storing oil, and of the remainder, (except the burying ground,) for hay-scales and paving stones, taking into the view the extent of the city then. The magazine was long since removed, and no claim or pretension made by the commonwealth to sell or dispose of the ground, but it passed into the occupancy of the city authorities, its proper guardians and managers. The commonwealth in all emergencies of peace or war, never thought of selling the public squares of the city ; though the vacant city lots have been sold under its authority. When property is dedicated or transferred to public use, the use is indefinite, and may vary according to circumstances. The public not being able themselves to manage or attend to it, the care and employment of it must devolve upon some local author- ity or body corporate as its guardian, who are in the first in- stance to determine what use of it from time to time, is best calculated for the public interest, subject as charitable uses are, to the control of the laws and the courts, in case of any abuse or misapplication of the trust. The corporation has not the right to these squares so as to be able to sell them, or employ them in a way variant from the object for which they were designed ; but they may allow them to remain unimproved or unoccupied, while f *4861 l m il f l' n fi 3 are too remote to render it proper. *They may afterwards use, or permit them to be used for de- positories of public property, such as paving stones, or offals of the city for hay-scales for a powder magazine for a public 1836.] OF PENNSYLVANIA. 486 (Commonwealth v. Alburger.) burying ground ; and finally, Avhen a close population surrounds them, for recreation and ventilation, ornament and thoroughfares of the city. All these are public uses, and have been employed in the different epochs of the city. In the same manner as to the public landings granted to the city by the founder, and others in the adjoining districts, they were for a time unwharfed, then wharfed and used for landing of passengers, and of lumber, after- wards for the cording of wood, and now several of the most valu- able let out for steamboat landings and other commercial purposes. This has been the uniform practice, and is consistent with the objects for Avhich they were bestowed. But the defendants' use of this ground was not a public use ; it was confined to one cor- poration, and devoted to the interment of their dead, to the ex- clijsion of the rest of the community. In addition to which, in the present state of the city, its appropriation for a burial place even for public purposes, would be objectionable. We are therefore of opinion, that the fact of the dedication of this square to public uses by the first proprietor and founder of Philadelphia, is too clear to admit of any dispute that nothing has ever been done on his part, or by the commonwealth or city since, that in the least impairs this vested right of the city in it ; that the act of Thomas Penn in 1741, in undertaking to sell a part of it to a religious society as their exclusive property and for their exclusive use, under the pretence of its being vacant ground, was without authority, and passed no title whatever to the grantees. If he has conceived he might do so, he was mis- taken in his rights : and the corporation for whose use it was taken, then and ever since of the highest respectability of charac- ter, have notwithstanding, in receiving this grant, had the misfor- tune to acquire property, to which their grantor had no title, the ground having long before been granted away by his ancestor to the use of others, who held the prior right. The warrant and survey and patent therefore conveyed no title to the defendants. But it has been contended, 1st, that they are protected by the lapse of time ; and 2d, the equity of their case has been brought in to aid this defence. 1. It is well settled that lapse of time furnishes no defence for an encroachment on a public right ; such as the erecting of an obstruction on a street or public square. This doctrine has very recently been examined by this Court in the case of The Common- wealth v. M' Donald, (16 S. & R. 395,) which was an indictment for erections on Water street, in the city of Pittsburg ; and in Jluny v. Shoneberyerf which was an action for prostrating build- ings in the town of Petersburg. In the former, Mr. Justice Dun- * 2 Watts, 23. 486 SUPREME COURT [March Term, (Commonwealth t>. Alburger.) can, in his charge to the jury says, " on an indictment for this T*4S71 encroachment, the statute *does not run: no length of time protects." Arid again in delivering the opinion of the Court, " to presume a grant, would be presumption run mad : it would be against the positive proof in the cause : whatever the defendant's grants are, he has shown, and they exclude all pre- sumption of others. All the cases of presumption have been for private nuisances and in civil actions." "No length of time will legalize a public nuisance unless there is a limit to prosecutions by statute, there is no limit. Public rights cannot be destroyed by long continued encroachments : at least the party who claims the exercise of any right inconsistent with the free enjoyment of a public casement or privilege, must put himself on the ground of prescription, unless he has a grant or some valid authority from the government." The case of Runy v. Shoneberyer, was the case of a public square, and the language of Mr. Justice Rogers, in delivering the opinion of the Court is equally positive, and is appropriate to the points before us. " It is admitted," says he," that the erection of a public building on a street, (Com- inoincealth v. M' Donald ^ is a public nuisance : but a distinction has been attempted between a street and a square. In this state there are few ancient towns in which squares such as this do not form part of the plan. They are generally located at the inter- section of the streets, and are intended as sites for the erection of buildings for the use of the public, such as court houses, mar- ket houses, school houses and churches ; sometimes they are de- signed for ornament, and at others they are intended for the promotion of the health of the inhabitants, by admitting a free circulation of air. The squares as well as the streets, and for the same reason, are placed under the superintendence of the local authorities, who have full power to regulate them so as more effectually to enforce the purposes to which they have been dedicated. Public squares, unlike commons, are not intended for the exclusive use of the citizens of the city or borough where they arc situated, but are designed for the comfort and conveni- ence of strangers in the pursuit either of business or pleasure. It would be an abuse of the grant to attempt to appropriate the enjoyment of them to ^citizens in exclusion of others." " The learned Judge who ruled this cause, expressed an opinion that if a person was suffered to build a house on one of the beautiful squares in the city of Philadelphia, and was permitted to remain there twenty-one years, his title would be good. But this de- pends on the question whether the building was a public or private nuisance. The case put as an illustration by the Court, we will determine when it arises ; but I must be permitted to ob- serve, that I have but little faith in the correctness of the opinion. 183C.] OF PENNSYLVANIA. t (Commonwealth v. Alburger.) For although the city has a qualified property in the ground, yet the corporation is but a trustee for the public, for whose use and benefit the squares were left open. The enjoyment of them is free, as things of common right, to all the citizens of the com- monwealth, subject however, as I before observed, to such Regulations and restrictions affecting all, as are not in- P^IOQ-I consistent with the grant. And in this respect I am at a loss to see any difference between a street and a square. If the erection of a building on a square is a common nuisance, the plain- tiff can acquire no right by long-continued possession." These principles are of universal application, and control the present case as well as others. There is no room for presumption since the grant itself is shown and proves defective ; and if there were no grant shown, presumption will not be made to support a nuisance, by encroachment on a public right ; and no statute of limitations bars the proceeding by indictment to abate it. These principles, indeed, prevade the laws of the most enlightened na- tions as well as our own code, and are essential to the protection tion of public rights, which would be gradually frittered away, if the want of complaint or prosecution gave the party a right. In- dividuals may reasonably be held to a limited period to enforce their right against adverse occupants, because they have interest sufficient to make them vigilant. But in public rights of property, each individual feels but a slight interest, and rather tolerates even a manifest encroachment, than seeks a dispute to set it right ; Commonwealth v. Passmore, (1 Serg. & Rawle, 220.) And of this the present case is a proof, where the respectable character of the defendants as a corporation and individuals, and the pur- pose for which they used the ground, would inspire the greatest reluctance even in those whose duty it strictly was, to proceed to legal measures against them. This the tardiness of the city's proceedings manifests. As to the equity set up by the defendants, it would not be proper perhaps, to examine it, because we have not the means, if it existed, to award a compensation for it, or preclude the city from their right. It does, however, appear by the evidence, that the defendants in 1782, were aware that this square was "one of those reserved in the original plan of the city of Philadelphia, for the benefit of the citizens thereof." That prior to this time th y had " encroached on other lots within the square," for the purpose of interment, and in that year asked for three acres and three-quarters and thirty-one perches and five-tenths of a perch, including the one acre eight perches and six-tenths patented by the proprietary; but the legislature did not grant the request. It further appears that in March 1800, the city brought an eject- ment to recover the ground they occupied, and in February 1801, 488 SUPREME COURT [March Term, (Commonwealth t>. Alburger.) an agreement was made with a committee of the city corporation, by which the latter agreed to aid the former in obtaining a grant of a vacant lot on Mulberry street, between Fifth and iSixth streets from Schuylkill ; in consideration of which the defendants agreed they would on obtaining it, take down and remove the fence surrounding the part in their possession, and put up a hand- some pale fence round that part in which bodies were interred, and would within ten years remove that fence and inclose only that part for which they had a patent, leaving the rest open and r*48Q1 * n P ossess i n *f the city: no interments to be made in future on any other part of the square ; and the right of either party to the part patented not to be affected by the agreement. The defendants sent a committee to the legislature, of which Mr. Peltz was one, who says they stated as reasons for the application that a suit had been brought, and if persisted in, the congregation would probably lose the ground, and have no place for burying the dead. The legislature by act of 19th of Feb. 1801, granted them a lot, described as containing 396 feet by 288, for the purposes of a burial place and site of a charity school; and by the act of 14th of April 1835, authorized them to sell such part as they thought proper; the proceeds to be ap- plied to the repair of their buildings on Race street. The eject- ment of the city was marked 'settled' in October 1801, and dis- continued in November, another agreement having been made between the city and the defendants, dated 20th September, 1801, (a copy of which was proved by Mr. Peltz,) which stipulates for the immediate surrender of the possession ; makes provision for paying for the new fence; alters the time of taking it down and putting it up round the patented part to 15 years; provides for immediate surrender of all on which there were no interments, and adds that they will erect no buildings on the patented part, and that length of possession shall not operate as a bar to the claim of the city on any part thereof in any suit to be thereafter instituted for that purpose, but that the compromise should be without prejudice to the rights of either party : and the defend- ants took a lease of the same date, of the unpatented part for 15 years at the rent of 5 shillings. In March, 1819, they gave up the part held under this lease. This evidence goes far to rebut the equity the defendants might otherwise have from payment of jt'50, and the interest from 1741. They have had the exclusive occupation for the purpose of inter- ment ; a use it is believed equivalent to the interest of their money, if not in later periods a source of revenue to the church. In addition to this, they had in 1801, the gift of a large and valu- able lot from the legislature, one of the vacant city lots, which has been growing in value since, and the grant of which was 1836.] OF PENNSYLVANIA. (City of Philadelphia v. Davis.) aided by the city, and it would seem by the evidence of Mr. Peltz, was given as a compensation for the ground they occupy ; and if that were not the case, yet it takes away any ground of equity in their claim. As to want of notice, that cannot be sus- tained ; because the evidence of the appropriation of the lot was of record in the surveyor-general's office, for the information of those who chose to apply, and of which all concerned were bound to take notice, and in or before 1782, it was known to the de- fendant's predecessors. More might be added on this copious sub- ject, but it would extend this opinion into needless prolixity. We are of opinion that the indictment is supported by the evidence, and that the motion for a new trial should be denied. . New trial refused. Cited by Counsel, 5 Wharton, 334 ; 2 Barr, 242, 252 ; 3 Id. 206 ; 7 Id. 355 ; 1 Jones, 200 ; 7 P. F. Smith, 109 ; Brightly, 72. Cited by the Auditor, 6 Casey, 440. Cited by the Court below, 1 Jones, 446. Cited by Read, J. at Nisi Prius, 7 P. F. Smith, 277. Cited by the Court, 4 Harris, 94 ; 7 P. F. Smith, 220. See also ante 25 ; 2 Harris, 186 ; 9 Casey, 210. [* PHILADELPHIA, APRIL 28, 1836.] [*490] The CITY OF PHILADELPHIA v. DAVIS and Others. One having large real and personal estates, and whose nearest relations were a brother and the children of a brother and sister, made his will, dated in February, 1830, in which were the following provisions : (1.) He devised a house and lot of ground in France to his brother and one of his nieces, during the life of his brother, and thereafter one moiety to his said niece, and the other moiety to six children of his said brother. (2.) He gave legacies of different sums to his brother and nephews and nieces ; some of the legacies being to trustees for the separate use of married nieces. (3.) He then gave the residue of his estate to "the Mayor, Aldermen and citizens of Philadelphia," in trust for the estab- lishment of a college for orphans, and other public and charitable pur- poses. In December, 1830, he made a codicil reciting the will, and that he had, since the execution thereof, purchased certain real estate "all which as well as any real estate that I may hereafter purchase," he added, " it is my wish and intention to pass by the said last will : now I do hereby republish the foregoing will and testament, dated, &c. and do confirm the same in all particulars." In June, 1831, he made another codicil, reciting, that since the execution of the will, he had purchased other real estate "all which as well as any real estate that I may here- after purchase, it is my intention to pass by said will : ' ' and then reciting that he had purchased certain land near Philadelphia, he declared it to be his intention that the orphan house, &c. should be erected upon this land, instead of the spot directed in his will, &c. Between the date of 490 SUPREME COURT [March Term, (City of Philadelphia . Davis.) this last codicil and his death, he purchased certain other real estate. The legacies to the next of kin were paid by the executors about seven months after the death of the testator. Ejectments were instituted by the heirs, against the City of Philadelphia, to recover the after-acquired real estate, which were decided in favor of the plaintiffs, and possession was delivered accordingly. In ejectment brought by the city, to recover back the same real estate, it was held that it was not a case in which the heirs were bound to elect between the after-acquired real estate and the legacies, and therefore that the city was not entitled to recover. THIS was an action of ejectment instituted by the Mayor, Al- dermen and Citizens of Philadelphia, against Benjamin Davis, Franchise Fenelon Vidal, Etiene Girard, John Hemphill and Maria his wife, John Y. Clark and Henrietta his wife, and John Hemphill and Mark Richards, trustees of Caroline Haslam, to recover possession of a lot of ground situate at the north-east cor- ner of Coates' and John streets, in the district of Spring Garden and County of Philadelphia. The action was tried before Mr. Justice Kennedy, at a Court of Nisi Prius, held at Philadelphia on the 16th of February, 1835. when, after the evidence had been gone through on the part of the plaintiffs, the following agreement was signed by the counsel : "It is agreed that the facts stated on the judge's notes, be con- sidered as in the nature of a special verdict, and the points of law growing out of these facts as all reserved. If the Court shall be r*4Q11 * *P"" on f r the plaintiff as against all or any of the -* defendants, then judgment to be entered for the plain- tiffs for the whole or an undivided part, and against all or some of the defendants, according to that opinion. If the Court shall be of opinion with the defendants, or any of them, then judgment to be entered for the defendants, or such of them with whom the Court shall be of opinion : and power reserved to the Court to make any inference of fact from the evidence, which they may de- cide a jury might properly make to order a new trial it from any cause they shall think it necessary or if they shall be divided equally in opinion." The material facts of the case were as follows : Stephen Girard of the City of Philadelphia, died on the 26th day of December, 1831, seized or possessed of large real and per- sonal estate, and effects, and having made his last will in writing, dated the 16th day of February, 1830, and two codicils thereto, one dated the 26th day of December, 1830, and the other dated the 20th day of June, 1831. He left the following heirs or next of kin, viz. 1st. Etienne Girard, a brother of the whole blood ; 2d. Three nieces, children of John Girard, a deceased brother of the whole blood, viz. 1st. Antoinette, married to John Hemphill. 1836.] OF PENNSYLVANIA. 491 (City of Philadelphia t>. Davis.) 2d. Henrietta, married to J. Y. Clark. 3d. Caroline, married to John B. Haslam. 3d. Framboise Fenelon Vidal, othenvise called Victoire Fenelon, the daughter of Sophia Girard Capayron, a deceased sister of the whole blood. By the will of Mr. Girard, after various legacies of considera- ble sums of money to different charitable institutions and individ- uals, he made the following devises and bequests : " IX. I give and devise my house and lot of ground thereto belonging, situate in rue Ramouet aux Chartrons, near the city of Bordeaux, in France, and the rents, issues, and profits thereof, to my brother, Etienne Girard, and my niece Victoire Fenellon, (daughter of my late sister Sophia (jirard Capayron,) (both re- siding in France,) in equal moieties for the life of my said brother, and, on his decease, one moiety of the said house and lot to my said niece Victoire, and her heirs forever, and the other moiety to the six children of my said brother, namely, John Fabricius, Marguerite, Ann Henrietta, Jean August, Marie, and Madelaine Henriette, share and share alike, (the issue of any deceased child, if more than one, to take amongst them the parent's share) and their heirs forever. *X. I give and bequeath to my brother, Etienne r^ioon Girard, the sum of five thousand dollars, and the like sum of five thousand dollars to each of his six children above named : if any of the said children shall die prior to the receipt of his or her legacy of five thousand dollars, the said sum shall be paid, and I bequeath the same to any issue of such deceased child, if more than one, share and share alike. XI. I give and bequeath to my said niece, Victoire Fenellon, the sum of five thousand dollars. XII. I give and bequeath absolutely to my niece, Antoinetta, now married to Mr. Hemphill, the sum of ten thousand dollars, and I also give and bequeath to her the sum of fifty thousand dollars, to be paid over to a trustee or trustees to be appointed by my executors, which trustee or trustees shall place and con- tinue the said sum of fifty thousand dollars upon good security, and pay the interest* and dividends thereof as they shall from time to time accrue, to my said niece for her separate use, during the term of her life ; and from and immediately after her decease, to pay and distribute the capital to and among such of her children and the issue of deceased children, and in such parts and shares as she the said Antoinetta, by any instrument under her hand and seal, executed in the presence of at least two credible witnesses, shall direct and appoint, and for default of such appointment, then to and among the said children and issue of deceased children in equal shares ; such issue of de- 492 SUPREME COURT [March Term, (City of Philadelphia r. Davis.) ceased children, if more than one, to take only the share which their deceased parent would have taken if living. XIII. I give and bequeath unto my niece, Carolina, now married to Mr. Ilaslam, the sum of ten thousand dollars, to be paid over to a trustee or trustees to be appointed by my execu- tors, which trustee or trustees shall place and continue the said money upon good security, and pay the interest and dividends thereof from time to time as they shall accrue, to my said niece, for her separate use, during the term of her life;- and from and immediately after her decease, to pay and distribute the capital to and among such of her children and issue of deceased children, and in such parts and shares, as she the said Carolina, by any instrument under her hand and seal, executed in the presence of at least two credible witnesses, shall direct and appoint, and for default of such appointment, then to and among the said children, and issue of deceased children, in equal shares, such issue of de- ceased children, if more than one, to take only the share which the deceased parent would have taken if living ; but if my said niece, Carolina, shall leave no issue, then the said trustee or trustees on her decease, shall pay the said capital and any interest accrued thereon, to and among Caroline Lallemand, (niece of the said Carolina,) and the children of the aforesaid Antoinette, Hemphill, share and share alike. XIV. I give and bequeath to my niece Henrietta, now mar- ried to Dr. Clark, the sum of ten thousand dollars ; and I give and F*4Qm bequeath *to her daughter Caroline, (in the last clause above named,) the sum of twenty thousand dollars the interest of the said sum of twenty thousand dollars, or so much thereof as may be necessary, to be applied to the maintenance and education of the .said Caroline during her minority, and the principal with any accumulated interest, to be paid to the said Caroline, on her arrival at the age of twenty-one years." Then after certain other legacies and devises, he gave all the residue and remainder of his real and personal estate, wheresoever situate, to " the Mayor, Aldermen and Citizens of Philadelphia," in trust for certain public purposes, and appointed five persons executors of his will. * The two codicils to the will, were as follows : ''Whereas, 1, Stephen Girard, the testator named in the fore- going will and testament, dated the sixteenth day of February, eighteen hundred and thirty, have, since the execution thereof, purchased several parcels and pieces of real estate, and have built sundry messuages, all which, as well as any real estate that I may hereafter purchase, it is my wish and intention to pass by the said will : now, I do hereby republish the foregoing last will and testament, dated February 16th, 1830, and do confirm the 1886.] OF PENNSYLVANIA. 493 (City of Philadelphia v. Davis.) same in all particulars : In witness, I, the said Stephen Girard, set my hand and seal hereunto, the twenty-fifth day of December, eighteen hundred and thirty." " Whereas, I, Stephen Girard, the testator named in the fore- going will and testament, dated February 16th, 1830, have, since the execution thereof, purchased several parcels and pieces of land and real estate, and have built sundry messuages, all which, as well as any real estate that I may hereafter purchase, it is my intention to pass by said will ; and whereas, in particular, I have recently purchased from Mr. William Parker, the Mansion House, out-buildings, and forty-five acres and some perches of land, called Peel Hall, on the Ridge Road, in Penn Township : now, I declare it to be my intention, and I direct, that the orphan establishment, provided for in my said will, instead of being built as therein directed upon my square of ground between High and Chestnut and Eleventh and Twelfth streets in the City of Phila- delphia, shall be built upon the estate so purchased from Mr. W. Parker, and I hereby devote the said estate to that purpose, exclusively, in the same manner as I had devoted the said square, hereby directing that all the improvements and arrange- ments for the said orphan establishment prescribed by my said will as to said square shall be made and executed upon the said estate, just as if I had in my will devoted the said estate to said purpose consequently, the said square of ground is to consti- tute, *and I declare it to be a part of the residue and r*4Q/n remainder of my real and personal estate, and given and devised for the same uses and purposes as are declared in section twenty, of my will, it being my intention that the said square of ground shall be built upon and improved in such a manner as to secure a safe and permanent income for the purposes stated in said twentieth section. In witness whereof, I, the said Stephen Girard, set my hand and seal hereunto, the twentieth day of June, eighteen hundred and thirty-one." The property which was the subject of the present suit, was purchased by Mr. Girard, on the 2nd of November, 1831, for the consideration of $1700. Several other parcels of real estate were purchased by him after the date of the last codicil ; the conside- ration paid for which was $64,618 55. A power of attorney was executed in France, on the 16th of March, 1832, by Etienne Girard to Jean Fabricius Girard and Jean Auguste Girard, to appear for him in respect to this succession and to take all such measures as might be expedient. This instrument was minute in its details, and conveyed plenary powers, both in respect to the legacies and the intestate property. The legacies given by the testator, were paid as follows : VOL. i. 33 494 SUPREME COURT [March Term, (City of Philadelphia c. Davis.) 1832, July 5, Madame Vidal, the legacy of - $5,000 " (5, J. Y. Clark and his wife, her legacy of - 10,000 " " 7, J. Hemphill and hi* wife, - - 10,000 " Aug. 21, Trustees of Mrs. Hemphill, - 50,000 " Sept. 1, Trustees of Mrs. Ilaslam, - - 10,000 1888, Jan. 2, Attorney of Etienne Girard, - 5,000 In each of these cases the state duty on legacies to collateral relations, &c. was deducted. On the 8th of October, 1832, an action of ejectment was insti- tuted in the Supreme Court, in the name of Louis Vidal and Franchise Fenclon his wife, against the Mayor, Aldermen and citizens of Philadelphia, to recover the real estate acquired by the testator, after the date of his last codicil. A similar action was instituted in the name of Mr. Hemphill and wife, Mr. Clark and wife, and Mr. Haslam and wife, on the same day. On the 13th of October, 1832, a similar action was instituted in the name of Etienne Girard. In each of these cases, the action was en- tered by the agreement of the attorneys of the plaintiffs, and of the city solicitor for the defendant, dated the 8th of October, 1832, and approved by the mayor and city treasurer ; and a case was stated for the opinion of the Court, signed and approved in like manner. This case, which set forth the relationship of the plaintiffs to Mr. Girard, the material clauses of his will and the date of the acquisition of the real estate in controversy, will be found in 4th llawle, 323, where the arguments of the counsel, and the opinion of this Court upon the question then raised r*4Q"1 * arc i ven> r ^ nc judgment of the court was pronounced on the 29th of March, 1833 ; and on the 9th of April, 1833, the following resolutions were adopted by " The Commis- sioners of the Girard Estate." " Resolved, that the executors of S. Girard, be informed that the suit instituted by the next of kin, for obtaining the real estate purchased subsequent to the date of the execution of the will, has terminated in favor of the plaintiff, and that the said executors be authorized to hand over the title papers of the property, which has passed by the decision, to the said next of kin or their legal representatives." "Resolved, That the representatives of the next of kin of S. Girard, be informed that this Board is prepared to settle the account of the rents and expenditures of the estate obtained by the late decision of the Supreme Court, and that the agent .of the Girard estate be directed to give up possession of the said property." The defendants were accordingly put in possession of the real 1836.] OF PENNSYLVANIA. 495 (City of Philadelphia v. Davis.) estate and the title papers belonging to it, and the rents and profits were duly accounted for with them. The present action was instituted on the 14th of July 1834. Davis, one of the defendants, was tenant in possession ; the other defendants came in as landlords. Mr. Williams, for the plaintiffs. It is contended on the part of the plaintiffs, that the defendants were hound to elect between the legacies given to them by the will of Stephen Girard, and the after accjuired property which did not pass by the will to the city, and that they are not entitled to both. This question was not raised in the case of Grirard v. The City of Philadelphia, (4 Rawle, 323.) The case stated did not present it, and it was not argued on either side. This eject- ment has been brought for the purpose of obtaining a decision of the point. 1. Is this a case for the application of the doctrine of election ? The rule which in cases of a bequest by the testator, of what he knew to belong to another, authorized the legatee to have either the specific thing or an equivalent, existed in the civil law. In Dill v. Parker, (Swanston, 396, note,) the authorities are all collected, and the rule recognized. By that law, the heir had the alternative of taking under the will or refusing. In 1755, the Master of the Rolls states the English rule to be, as it is now understood. Clark v. Cruise, (2 Vesey, 617.) The first question is, has the testator done more than he had a right to do ? In the case of Grirard v. The City of Philadelphia, it was settled that he had no right to devise after-acquired lands. Then has he given a bounty to those whom the disposal of the after-acquired land prejudices? These defendants are all legatees in the will. The intention, that the estate he might acquire after making his .vill, should not go to his heirs at law, is *manifest. It r*4.qr>-i is said, that it may be sometimes presumed. (1 Swans- *- ton, 400 note.) This Avill is perfect in all respects, which distin- guishes it from a class of cases. In Ilearle v. G-reenhanfc, (3 Atkyns, 715 ; 2 Vesey, 12,) it was said that if an instrument is executed by a person under an incapacity, there can be no elec- tion. In Croley v. Barry, (2 Ves. & Beames, 127,) however, the Lord Chancellor expressed his doubts of the correctness of this principle, and put the heir to his election under a will, not made so as to pass real estate in Scotland. So in Carey \.Aslrew, (1 Cox, C. C. 240,) Lord Eldon expressed his doubts. It was evi- dent that Mr. Girard thought that he could pass after-acquired land, by the words in the first codicil. The second was obviously made for the purpose of giving directions respecting his projected college; not with the intention of republishing his will/ It is 496 SUPREME COURT [March Term, (City of Philadelphia r. Davis.) worthy of remark, that he has not given an inch of ground in Philadelphia to any other than the city. He has carefully dis- posed of everything he had ; and excepting the two youngest chil- dren of his brother Etienne, he has mentioned every one of his relations. The English authorities on this subject are numerous and consistent. Noys v. Mordaunt, (2 Vernon, 581 ;) Anon. (Gilb. Eq. Rep. 15 ;) 2 Mad. Chan. 51 ; Welby v. Welby, (2 Ves. & Beames, 189;) Streetjield v. Streetjield, (Forester, 176 ;) Sir 11. Walpnle v. Con-way, (Barnadiston, 153 ;) Roberts v. Kinyley, (1 Ves. 238;) Kirkham v. Smith, (1 Ves. 258;) Unnettv.. Wilk*, (Ambler, 430;) Cooke v. Hilly er, (1 Ves. 234;) Franks v. Ktandish, (1 Bro. C. C. 588;) Highway v. Banner, (1 Bro. C. C. 584;) Lewis v. King, (2 Bro. C. C. 600;) Finch v. finch, (4 Bro. C.C. 38; 1 Ves. jr. 534;) Freak \.Barrinqton, (3 Bro. C. C. 285;) Whistler v. W.ebster, (2 Ves. jr. 367;) Wilson v. Townsend, (2 Ves. jr. 367;) Wilton v. Mount, (3 Ves. 191 ;) Rutter v. M'Lean, (4 Ves. 536;) Blunt v. Clith- ero, (10 Ves. 589.) Then in the case of Thellusson v. Woodford, (13 Ves. 209,) Lord Erskine held, that the heir at law, was bound to elect between the benefits which he took under the will, and the land, which the testator had in his life time contracted to purchase, but which was not actually conveyed to him at the time, and re- specting which he made provision in the will. The decision in this case was affirmed in the House of Lords ; (1 Dow, 249;) Welly v. Welby, (2 Ves.& B. 189;) Reynolds v. Torin,(\ Russell, 130;) Tibltets v. Tibbets, (1 Jacobs, 317.) In Churchman v. Ireland, (1 Russell & Mylne, 250,) Lord Brougham sustains Thellusson v. Woodford, and decides in conformity to it. The case is exactly like the present. The cases of Back v. Kelt, (Jacobs, 534,) and Johnson v. Telford, (1 Russ. & M. 244,) are cases in which the intention was doubtful, which cannot be said here. There is a class of cases, under the custom of London, which are applicable to this question. Morris v. Borrouyh, (1 Atkvns, 404 ;) Puyh v. Smith, (2 Atkyns, 43;) Cur v. Carr, (2 Atk. 278;) Cooper v. Scott. (3 P. Wins. 119.) The general principles of the English law in r*4Q71 rc S ar d t election have been *recognized in this state in several cases, Cauffman v. Caujfman, (17 Serg. & R. 16;) Heron v. Hoffman, (3 Rawle, 396;) Allen v. (retz, (2 Penn. Rep. 322:) Creacraft v. Dilley, (3 Yeates, 79;) Webb v. Evans, (1 Binn, 565.) 2. Have these defendants elected to take their legacies ? Upon this point there can be little doubt. The evidence shows clearly that they have been paid in full, and that they have given receipts or releases to the executors. The payment to Etienne Girard was after this ejectment was instituted. But supposing that an election has not been made under such circumstances as to be 1836.] OF PENNSYLVANIA. 497 (City of Philadelphia v. Davis.) binding upon them, this Court will now put them to an election. Ejectment is an equitable action here substituted for a bill in equity. The counsel cited under this head, Co. Litt. 145, (a ;) Cook v. Hillyer, (1 Ves. 234 ;) Bradish v. Gee, (Ambler, 229 ;) Lin- gen v. Saury, (1 P. Wms. 172 ;) Grlen v. Fisher, (6 Johns. C. R. 33 ;) .Lewis v. King, (2 Bro. C. C. 600 ;) Birmingham v. Kirwan, (2 Sch. & Lefroy, 450 ;) Hamilton v. BuvJcwalter, (2 Yeates, 392 ;) Wilson v. Wilson, (9 Serg. & R. 424 ;) Cauff- man v. Cauffman, (17 Serg. & R. 16 ;) Ambler v. Norton, (4 Hen. & Munf. 237 ;) 1 Hoveuden's notes to Vesey, 222; 2 Roper on Legacies, 427 ; Thomas v. Wright, (9 Serg. & R. 93 ;) Peebles v. Reading, (8 Serg. & R. 484.) Mr. Kittera, for the defendants. The question of election was considered before the argument of the case of Girard v. Philadelphia, but it was thought that there was not enough in the case to raise that question. After the decision of that case, the property was given up to the de- fendants, most of whom resided in France, and took measures to dispose of their interest. The industry of the opposite counsel has not enabled them to discover a single case like the present. Mrs. Hemphill, for example, has $50,000 to her separate use, vested in trustees. Can she be compelled to take real estate, which will be liable for her husband's debts during her life ? Mrs. Hemphill's proportion of the real estate is considerably less than her legacy. So is Mrs. Haslam's. On the other hand, the interest of Etienne Girard and of Madame Vidal in the real estate is greater than their legacies. How can an election in one or the other case be made or presumed. How can trustees or children elect ? The law is settled, that it must be a plain and absolute devise. 7 Bac. Abr. 450, appx. ; Forrester v. Cotton, (Ambler, 389 ;) Call v. Shore, (Ambler, 727 ;) Cauffman v. Cauffman, (17 Serg. & R. 16 ;) 1 Swanston, 401, 415, 441 ; 2 Ves. 543. What is there in this will to satisfy the Court, that Mr. Girard intended to give this after-acquired real estate to the City ? It is plain, that he knew it would not pass without a re- publication. The will was drawn by a professional person. In the second codicil the testator uses words which may be taken to mean, that he intended *to do something more. After r*jaoT the date of that instrument, his health rapidly declined, L and it is probable that his distant relatives recurred to his mem- ory. Then, if the Court are not convinced, that there was a clear design to give this property to the City, they will not put these parties to an election, in deference to an English decision of recent date, which is not authority here. In 1 Swanston, 406, it was held that a will not executed according to the statute 498 SUPREME COURT [March Term, (City of Philadelphia r. Davis.) of frauds, docs not put the party to an election. Brown v. Bru~ erton, (3 Johns. C. C. 553 ;) 1 Bridg. Eq. Dig. 601 ; Ham- mond's Dig. 272." Mr. Sergeant, on the same side. 1. If this is a case of election, none has yet been made. It would be strange to say, that there was an election made when no one supposed there was a case for an election. There must be a knowledge of facts and rights. This was laid down in Cauffman v. Cauffman and Heron v. Hoffman. If a party does an act without knowledge of his rights, he is not bound. An im- plied election is contrary to justice and the reason of the general rule. The ca^e of Churchman v. Ireland was unknown here at the date of the will and codicils, and at the death of Mr. Girard. 2. Is this a case to which the doctrine of election ought to be applied ? In England there are only four cases which resemble this: T/ielluason v. Woodford, decided by Lord Erskine in 1806. Back v. Kett, " by Sir T. Plumer in 1822. Johnson v. Telford, " by Sir John Leach in 1830. Churchman v. Ireland, " by Lord Brougham in 1831. It is evident, that as to the doctrine these Judges are equally divided; Lords Erskine and Brougham being on one side, and Sir T. Plumer and Sir J. Leach on the other. Whatever may be the reputation of the two lords for eloquence, they have never ranked as profound equity jurists. Down to the year 1800, there is no trace of an opinion by either lawyer or judge, that the heir was bound to elect in regard to after-acquired land, though there must have been a multitude of cases. Lord Erskine admits in Thelluwm v. Woodford, that there was no pre- cedent, authority or even dictum ; but he argues that it comes within the reason of the rule. Now the principle of the rule is, that you shall not claim under and against the instrument. But suppose the instrument has no legal operation or effect, how can the principle apply ? Take the case of an infant testator or any other, where there is a defect of power to pass the real estate. It is plain that there is no reason for an election in such case : and such was the law until the case of T/iellusson v. Woodford. In the case of after-purchased lands, the defect is not in the power, but in the instrument. It is a defect which the testator may remedy in a moment by republishing his will. There is no r* iqqn ""condition necessary. How is the intention of the tes- tator then to be ascertained with regard to after-acquired property ? The decision in Thellusson v. Woodford was prob- ably right ; but it docs not appear to have been necessary to re- 1836.] OF PENNSYLVANIA. 499 (City of Philadelphia v. Davis. ) sort to the doctrine of election. The will was sufficient in itself. In Back v. Kett, the testator desired his executors to sell what- ever real estate he might "die possessed of," yet Sir Thomas Plumer said he had no doubt, that the heir was not bound to elect ; and he said that the case of Thellusson v. Woodford had gone quite far enough, and that he should have entertained doubts in that case. In Johnson v. Telford the words in the will were the same as in Back v. Kett, and in the codicil the testator disposed of "all hereditaments" that might be "purchased by him at any time or times," and " conveyed to him after the date and publishing" of his will; the case resembles the present very strongly. Sir John Leach, however, thought that the words were not sufficiently strong to exclude the co-heirs. Then came the case of Churchman v. Ireland, in which Lord Brougham admits, that if Back v. Kett is to stand as law, Thellusson v. Woodford is considerably broken in upon. Now the words of the will in Churchman v. Ireland are obviously no more than those of the scrivener ; words of course, which he and the tes- tator after him use without meaning any more than by the words, " all my estate," which have never been supposed to make a case for an election. Lord Brougham's decision is in accordance with his views of reform in the law respecting after-acquired land. Here the law has been altered, and the question cannot occur again ; but the province of the Courts is different from that of the Legislature. The decision in Churchman v. Ireland is unsatis- factory to the profession, and appears from the London Law Magazine, (vol. vii. p. 358 ;) where it is said to have " met with anything but general acquiescence." The result of all the cases which are entitled to be considered as authority is, that the words of the will ought to leave no doubt in the mind of the judge. Here the words, " I intend to pass," may be construed to mean, "I intend to do some act to pass these after-acquired lands;" and if there is any ambiguity, the Court will lean in favor of the heirs. The doctrine of Thellusson v. Woodford has never been heard in Pennsylvania ; nor as far as appears from the reports, has it been countenanced in any other state. But what- ever might be its authority, if the law of descents stood as in England, it will be very difficult to carry it out here. By the act of 1794 the undisposed surplus of real and personal estate goes to the next of kin, of whom there may be an hundred ill the same degree. Each of these is entitled to elect. How can this be admitted with any degree of convenience. . The act of 1794 is imperative, that the remaining part of all lands, tene- ments and hereditaments, &c. not disposed of by will, " shall be divided and enjoyed as follows," &c. *How can the doctrine of election be applied so as to prevent the oper- ation of this law ? 500 SUPREME COURT [March Term, (City of Philadelphia t. Davis.) Mr. Scott, in reply. An examination of the evidence will show clearly. 1. That it was the deliberate intention of the testator, that the premises should pass to the plaintiffs upon the trusts declared in his will, and that the defendants should have no part of them. 2. That he has given legacies to the defendants, amounting to considerable sums. 3. That they have received these legacies, and made their election. The first nineteen sections of this will are occupied with the legacies, which he desired to bestow, including those to the de- fendants. He gives to public institutions and in charities, 116,- 000 dollars ; then bequeaths to his relations, including the chil- dren of Eticnne, $140,000, besides the real estate in France ; and from that period he never reverts to this part of his work, which he regards as completed. It will be remembered, that he had no children ; that he was the architect of his own fortune ; and it is well known that he entertained strong opinions on the inexpedi- ency of giving large fortunes to relations. His great object seems to have been the improvement of the city in which he re- sided, and the construction of the magnificent seminary which is to bear his name. Nor did he consider it expedient to bestow his money equally on all standing in the same degree of relation- ship to him. There is a remarkable inequality in the allotment of his legacies. If then, the after-acquired property is to go to them, it will be on a principle different from what he contemplated. There is no guide to the intention but the will and the codicils, and if they are examined, it will be found that their language is uniform. Nothing can be more positive or distinct than the ex- pressions of the codicils. It is by no means certain, that the person who drew this will, knew that after-acquired land would not pass by an express declaration of an intention to pass. The contrary is to be presumed. It is now settled by the case in 4th Rawle, that such was the law, but it never was so settled before in Pennsylvania. The second codicil was made only about six months before his death. It does not notice the first, but goes back to the will, declaring the intention in emphatic language. The fact of the legacies to the defendants, and their receipt of them, is established by the evidence. Then in saying that equity will not allow them to keep both the legacies and the land, we are supported in principle by the highest authorities ; by Lord Tal- bot in Harvey v. Lidxmveric, (Cas. Temp. Tulb. 130 ;) by Lord Camden in Villa Jteal v. Lord Galway, (1 Bro. C..C. 293, n. ;) by Lord Loughborough in Pearson v. Pearton, f* Bro. f*"01l ^' ^" ^^ ') an( ^ y Lords *Erskine and Brougiiam, in the cases cited. Judge Duncan has recognized the rule 1836.] OF PENNSYLVANIA. 501 . (City of Philadelphia v. Davis.) existing in this state; (Cauffman v. Cauffman.} And in the Supreme Court of the U. S. the same principle exists ; Hunter v. Bryant, (2 Wheaton, 37.) Mr. Sugden, a very careful writer, lays it down, that a purchaser from an heir who claims an estate conveyed to his ancestor after the date of his will, should be sat- isfied of three points : one of which is, that " if the will affects to pass all the estates which the testator might thereafter acquire, the heir at law does not take any interest under the will;" (Sug- den on Vendors, 138.) This book was" republished in Philadel- phia with notes, ten years before the date of Mr. Girard's will consequently the doctrine of election in respect to after-acquired lands, was familiar to the profession. It has been suggested that our intestate act necessarily makes a difference in consequence of the division of estates ; but under the custom of London there is the same division, and numerous cases exist in support of the doctrine of election. The case of Thellusson v. Woodford, was decided on this 'ground ; and it is difficult to say how it could be decided, without ruling this question. The judgment of Lord Erekine in that case, was affirmed by the House of Lords, (1 Dow, 249.) It does not rest as has been supposed, on the au- thority of Lord Erskine merely. Churchman v. Ireland, also, is sustained by the opinion of the Vice Chancellor, as will be seen by the report in 4 Simons, 520. The remarks upon Lord Broug- ham's judgment in this case, contained in the Law Magazine, are those of a personal or political opponent, as other passages of the same article clearly show. It is certain that Thellusson v. Wood- ford, has never been overruled ; it is believed to be the settled law of England at this time ; and there seems nothing in our juris- prudence to prevent the application of the doctrine of election in" the same manner. The cases of Back v. Kett, and Johnson v. Telford, stand on different ground, both because their authority is not so great, and the language of the wills was different from the present. 2. Has an election in law been made here ? I admit that there ought to be time and opportunity for deliberation ; was there not such here ? It is certain that the subject of election was agitated at the time of the first ejectment. If the receipt of the legacies did not amount to an election, their retention after the bringing of this ejectment may be so considered. The case of Heron v. Hoffner, shows that election may be by matter in pais. So do Cauffman v. Cauffman, and Oreacraft v. Lilly. Then as to the situation of the parties. Etienne was sui juris, and the power of attorney shows that he was Avell acquainted with his rights. Madame Vidal was a married woman, it is true, but by the French law she was a partner with her husband, and had power to act; and in equity as to her separate property, she is 5C1 SUPREME COURT [March Term, (City of Philadelphia t. Davis.) considered a feme sole, (Clancey, 358.) In Harvey v. Dixbcw- vtrie, Lord Talbot made provision for the cases of a married r*^fl<>l woman an( l an infiuat: and tliere are several other cases J *of election by femes covert ; Ardesrif \. Bennet, (2 Dickens, 463;) Earl of Darlington v. Pulteney, (7 Bro. P. 0. 546 ;) Wilwn v. Townttend, (2 Ves. jun. 693;) Vane v. J)un- (/. Davis.) would be unbecoming in me to pronounce that the testator had manifested an intention free from all reasonable doubt, and such as clearly required an election on the part of the heirs. In this I consider myself sustained by the example of Lord Cowper in Lawrence v. Lawrence, (1 Bro. P. C. 591, first ed.) which is one of the early cases, that we have a report of in a Court of Equity on the subject of election. In it, after a recovery of dower at law by Dulcibella Lawrence,, and the receipt by her of certain benefits under the will of her late husband, which Lord Somers conceived were given to her in lieu of dower, he decreed r*^041 a P cr P ctua l injunction against *her, but Lord Keeper Wright, thinking that the benefits taken under the will were not intended by the testator to be in lieu of dower, reversed the decree of Lord Somers ; after which Lord Cowper, upon a bill by a subsequent remainder-man, refused to disturb the decree of reversal, considering the intention of the testator to be dubious, merely from the conflicting opinions previously expressed by Lord Somers and Lord Wright in respect to it. The court then in this case, being of opinion that the testator did not intend to pass the property in controversy, by his will and the codicils thereto, it follows clearly that the plaintiffs have no ground or pretence whatever upon which to found their claim to a recovery. But even supposing that he had, and that he had de- clared his intention to that effect, in terms as clear as the light at noonday, still a majority, if not the whole of the court, are fully convinced that the plaintiffs could not recover. Anterior to the case of TJieUusgon v. Woodford, (13 Ves. 209,) which was decided by Lord Erskine in 1800, there is no case to be found, in which it appears to have been suggested or thought that an heir at law, who was a legatee under the will of the tes- tator, and upon whom lands acquired by the latter, after making his will, had descended, could be compelled to make his election merely because the testator had undertaken by his will to dispose of nil the lands which he should thereafter acquire. It is not credible that the case of the heirs at law, taking at the same time a benefit under such will and after-acquired land by descent, never occurred until the case of Thrlluxxon v. Wondford. On the contrary it is more than probable that it often happened with- out its having ever entered into the mind of any one to make this objection to it. This is strongly persuasive, if not irresistible evidence, to induce a belief, that the doctrine of election was never thought to have embraced such a case before. This infer- ence seems to receive support from Lord Eldon in Broome v. Monk t (lQ Yes. 609,) -decided by him in the year preceding that of Tlrllittton and Woodford by Lord Erskine, when he says, "election is where the testator gives what does not belong to 1836.] OF PENNSYLVANIA. 604 (City of Philadelphia . Davis.) him, but does belong to some other person ; and gives that per- son some of his own: by virtue of which gift a condition is im- plied, either that he will part with his own estate, or shall not take the bounty." This doubtless, was thought by Lord Eldon to be a faithful and accurate abstract of all the cases decided up to that time, in which it had been held that a party taking a benefit under a will was bound to elect. It certainly embraces very fully and distinctly the cases of Noys v. Mordaunt, (2 Vern. 531 ;) Streatfield v. 8treatfield, (Co. Temp. Talb. 176,) and sub- stantially also, as I conceive, the Anonymous case in Gilb. Eq. Rep. 15, which are the leading cases on this subject, with the exception of White v. White and Others, (2 Dick. 522,) to be noticed more particularly hereafter ; all decided before our revolution, and therefore to be considered as having a claim to *some binding authority with us. Lord Eldon certainly r*-nc-i did not think that such a case as Thellusson v. Wood- L ford, Avould have been sufficient to put the heir at law to his elec- tion, under the view that Lord Erskine took of it. The contrary however is plainly inferrible from what he says ; for after stating as above what appeared to him to be the true test by which to determine a case of election; he in order to show that the case then under his consideration did not come within it, proceeds by saying, that the question there was not whether the testator had taken away from the defendants what belonged to them, but whether he had taken away from them part of his own personal estate. His words are "but here the question is not that, but whether he" (meaning the testator,) "has taken away from these defendants, part of that personal estate which was the testator's, and was given to be laid out in the purchase of lands." Now the form here given by Lord Eldon, to the question actually pre- sented by the case of Broome v. Monk, is substantially the same with that given by Lord Erskine in Thellusson v. Woodford, as also with the one presented by the case before us, if it be admit- ted that the testator intended to pass the land in dispute by his will ; for it certainly cannot be said that the question either in Thellusson v. Woodford, or here is, whether the testator has given that which belonged to the defendants at the time of making the will or codicils, or at any subsequent period of the testator's life, which Lord Eldon seems to have considered necessary, in order to make a case of election. It is perfectly clear that the question here is, as Lord Eldon conceived it to be in Broome v. Monk, to wit: whether the testator has devised what was beyond all ques- tion his own at the time of his death as Avell as some tims before, and which he could have given to the plaintiffs for some time before, as well as at his death in despite of all the world, if he had pleased. This question, however, we all know was answered 505 SUPREME COURT [March Term, (City of Philadelphia t. Davis.) and settled in the negative by the decision of this court, in Girard and others v. Mayor Aldermen and citizen* of Philadelphia^ (4 Raulc, 325.) Seeing then that the present case does not come within Lord Eldon's description of a case of election, nor yet, as it appears to me, within the outlines of any of the cases decided on this subject in England anterior to our revolution, it may be proper to examine and see whether the same reason exists in it for making it a case of election. The only question raised in them was, whether a legatee could recover a legacy, and at the same time hold that which belonged to him, but was expressly given by the will to a third person. Now I apprehend that there is good ground, as regards the intention of the testator at least, which is admitted upon all hands, to be the foundation upon which the right to demand an election exists, if at all, for making a dis- tinction between his undertaking .by his will to devise a specific, definite property, which is not his own, the locality, extent and value of which are all completely within his knowledge, and r*"(\f~\ *i mme diately under his view, as it were, and that of -" undertaking to pass by his will all the real estate which he shall thereafter acquire. As to the first, it being fully within his knowledge and under his view, he is capable of forming an opinion in respect to it, and of exercising his judgment upon it, ami may come to a conclusion in his own mind, that it will suit the person to whom he is giving it, better than the real owner, and that that, which he is giving to the latter, is not only of more value, but will suit him in every other respect better than what he is taking from him. Under this view, the conduct of the tes- tator becomes rational, and consistent with what must be pre- sumed to be the first object with every testator, to wit: that of bettering the condition of his devisee or legatee. But in regard to property that is unknown, and as yet has not come into being, the same course of reasoning cannot be adopted ; nor can, what must be considered the first and great object of the testator, be generally attained by it. lie may acquire real estate thereafter, or he may not ; but whether he does or not, it is utterly impos- sible that he can dispose of it, before he shall have acquired it, from the same motives, and under the same view and judgment that might govern and direct him after it is had. As the testa- tor then cannot be actuated by the same motives in disposing of that which has neither locality nor value, that might reasonably influence him in disposing of that which has both, and at the same time belongs to him ; it would be wrong to apply the same rule to both cases. It is also worthy of consideration, that, although our statutes regulating the disposition of intestates' estates do not control or restrain men from giving away their estates as they please, except 1838.] OF PENNSYLVANIA. 506 (City of Philadelphia v. Davis.) as to one-third of their real estates, which is secured for life to their widows, should they leave any at their deaths, yet they serve to show, that it was thought the interest of the state and that the happiness of its citizens would be best promoted by caus- ing the estates of persons dying intestate, to be parted and divided equally among their surviving relatives, with a view no doubt, among other objects, to preserve equality of condition in this respect, as far as may be consistent with the constitution arid the principles of natural justice. Those, therefore, upon whom these statutes have cast the ownership of a deceased's estate, are enti- tled to favor and protection, and ought not to be deprived thereo*, unless by some known rule of equal authority and of unambig- uous import. Besides, is there not, I would ask, an inconsistency in a testator's purchasing and taking a conveyance of real estate to himself and his heirs, for his own and their use, and not for the use of the devisees named in his Avill, after having thereby previously given all such after-purchased estate to them ? Lord Holt in Bunker v. Cooke, (Fitzg. 229, 232: Gilb. on Dev. 132, 136,) declared it to be repugnant to the will ; and if so, 1 think that I may safely add, that it would therefore be against all *reason to permit the will to overrule the use declared r*~n7-i in the subsequent deed of purchase. After the decision of Thellusson v. Woodford, the case of Churchman v. Ireland, (Russell & Mylne, 250, s. c. 4 Oond. English Chan. Rep. 412,) came before Lord Brougham, upon an appeal from the decree of Sir Launcelot Shadwell, Vice Chan- cellor: in which he affirmed the decree of the Vice Chancellor; deciding, that the heir at law, who took some benefits under the will was bound to -elect, where the testator had devised and be- queathed " all and singular my estate and effects whatsoever and wheresoever, and of what nature or kind soever, both real and personal, which I shall die possessed of, interested in, or entitled unto;" and afterwards purchased real estates. It is true that the decision of this case is in accordance with the principle laid down in Thellusson v. l^oodford; but it is at variance with the rule .of construction, adopted by Sir John Leach, Master of the Rolls, in Johnson v. Telford, (Russell & Mylne, 244, s. c. 4 Cond. Eng. Ch. Rep. 409,) as to the words of the testator, showing, as it was contended, an intention to devise after-acquired real estate, and comes in direct conflict with the construction put on similar words, relative to the intention of the testator in this respect, by Sir Thomas Plumer, Master of the Rolls, in Back v. Kett, where the testator by his will, desired his executors to sell whatso- ever real estate he might die possessed of, and afterwards bought real estate ; it was held that the heir who took bene- fits under the will, was not bound to elect. In this case, Sir 507 SUPREME COURT [March Term, (City of Philadelphia t>. Davis.) Thomas Plumer said, the heir is not to be disinherited except by express words. And in speaking of the case of T/iel- luvmm v. Woodford, which was affirjned in the House of Lords, (1 Dow, P. C. 249,) he said it had gone far enough, and that without such high authority, he should have entertained doubts in it ; in short, showing, as Lord Brougham very fairly admits, " that had it originally fallen to him to decide it, he would have come to a different conclusion." Churchman v. Ire- land. Among the English cases decided before the revolution, which O O ' are the only cases of our mother country that are regarded here as of binding authority, the Anonymous case in Gilb. Eng. Rep. 15, may seem to some not to come literally within Lord Eldon's description of the case of an election. According to the report, which is nothing more than a bare abstract of the case, it would seem that where a testator seized of two acres, one in fee- simple and the other in tail, and having two sons, devised the fee-simple to the elder, who was the issue in tail, and the fee- tail acre to the younger; and the elder son, upon the death of the testator, entered upon the fee-tail acre, it was held by Lord Cowper, in 1709, upon a bill filed by the younger son that the elder son was bound either to let the younger son enjoy the fee- tail acre, or otherwise the younger was entitled to have an equivalent out of the fee-simple acre; and it was so decreed. r* r OKT *^ n the subsequent case, however, of White v. White,* mentioned before, decided by Lord Bathurst, in March, 1770, which is the latest English case of binding authority, on this subject, the case in Gilbert is strongly impeached, if not overruled, unless the circumstance of the devises being made ex- clusively to children of the testator, be sufficient to preserve its authority, which may have had some weight, as it existed also in the earlier cases of election above named. Lord Cowper, in- deed, confines the principle of election expressly in Noy* v. Mordavnt, to the case of children ; his words are, " in all cases of this kind, where a man is disposing of his estate among hi* children, and gives to one fee-simple lands, and to another lands intailed or under settlement, it is upon an implied condition that each party acquit and release the other ;" 2 Vern. 582. This circumstance is also particularly noticed by Lord llardwicke, in Hearle v. Greenbank, (1 Ves. 307 ;) and again in Bouyhton v. Bouyhton, (2 Ves. 15, 1C,) as having some influence in making a case, a case of election, that otherwise, perhaps, might not be so considered. In White v. White, the question was not be- tween children, and there it was ruled that the heir in tail, whose estate was disposed of by the will of his ancestor to uses different from the intailment, and to whom the profits of all the 1836.] OF PENNSYLVANIA. 508 (City of Philadelphia v. Davis.) real estate of the testator, including lands held by him in fee- simple, were given during his life, as also a legacy of a thousand pounds, charged upon the real estate, was entitled to have the legacy and the profits of the fee-simple estate during his life, as well as the estate tail, which he had entered into after the death of the testator, and by a common recovery suffered- for that pur- pose, had converted into a fee-simple : and a decree accordingly was made in his favor. Now it is very obvious, that by applying the principle of election to the cases of Thellusson v. Woodford, and Churchman v. Ireland, was carrying it much beyond what it would have been, had it been extended to the case of White v. White, and greatly beyond, as I have already said, what was ever before thought of. The Avhole course of Lord Hard- wicke's reasoning in Hearle v. G-reenbank, as also in Bouyhton v. Bouyhton, is opposed to the decisions, in those two cases of Thellusson v. Woodford, and Churchman v. Ireland, and directly opposed, as it appears to me, to the recovery of the plaintiffs in this case. In Hearle v. G-reenbank, page 307, he" says, " when the obligation arises from the insufficiency of the ex- ecution or invalidity of the will, there is no case where the lega- tee is obliged to make an election, for there is no will of the land." So he again repeats, where the land cannot pass by the will, the legatee cannot be called on to make an election. And in Bouyhton v. Bouyhton, as well as in Hearle v. G-reenbank, he considers a will disposing of the real estate, but not executed in conformity to the statute, as no will in regard to it, though good as to the personal estate and sufficient to give the legacy to the legatee; but, because it can have no operation upon the real estate, it is therefore *insufficient to put the legatee to r*cnq-i election. Now, is not all this directly applicable to the case before us ? Here the will, though good to pass all the per- sonal estate, which the testator had at the time of his death, and likewise all the real estate which he owned or had any interest in, at the date of this last codicil thereto, yet is void, invalid and inoperative on the very face of it, so far as he undertakes to dis- pose of real estate which he should purchase or acquire thereafter. In effect it is no will with respect to the lands in question, they having been purchased by the testator after making of the last codicil to his will, and therefore, according to the reasoning of Lord Hardwicke, the defendants cannot be required to make an election. But where the testator makes a bequest or devise annexing in express terms, a condition to it, as in Streatfield v. Streatjield, and Bouyhton 'v. Bouyhton, it must be evident to the mind of every one, that, as the donor in such case, has the right to pre- scribe the terms or conditions, upon which he is willing to bestow VOL. i. 34 509 SUPREME COURT. [March Term, (City of Philadelphia t>. Davis.) what belongs to him, they ought and must be complied with ; otherwise, the legatee or devisee cannot claim the gift. But in other cases, where the rule of election has prevailed, it is perhaps somewhat difficult to discover and comprehend fully the ground or reason of its application. In Noys v. Mordaunt, (2 Vern. 682,) it is said by Lord Keeper Cowper, to be " upon an implied condition, that each party acquit and release the other." In Streatfield v. Streatfidd, Oa. Temp. Talb. 183, Lord Talbot says " this court (meaning chancery,) compels the devisee, if he will take advantage of the will, to take entirely, but not partially under it, there being a tacit condition annexed to all devises of this nature, that the devisee do not disturb the disposition which the devisor hath made," which Lord Hardwicke construes an "implied intent, that whatsoever takes by the will, shall comply with the whole;" (2 Ves. 14,) or as he says in another part of the same page, " upon a condition implied to this effect by con- struction of the court." Lord Eldon seems also to consider it as resting upon an implied condition, that the legatee or devisee shall part with his own estate or he shall not take the bounty. 10 Ves. 609. In Morris v. Burrows, (2 Atk. 629,) Lord Hard- wicke speaks of it as " depending upon the equity of the court, which is, that no person shall take by the will, and at the same time do any thing that shall destroy the will." See also 3 Atk. 715. The equity here meant, as I apprehend, is an obligation arising from rather an artificial than a natural construction of the will by the court, that is conceived to become binding on the conscience of the legatee or devisee, to observe the implied inten- tion of the testator whose bounty he accepts, by fulfilling what is called in other terms the implied condition annexed by the con- struction of the court and not by the testator to the gift ; and, though spoken of as a condition, it certainly has not been regarded as being of the same force as an express condition, because in Boughton v. Bouyliton, where the testator by a will sufficient to dispose of his personal estate, but not being so in r*ei A-I *regard to the rest, for want of conformity to the statute in its execution, gave his real estate to one of his chil- dren, and a contingent legacy of .1200 to a grandchild, who became his heir at law on his death, expressly directing, that if any who received benefit by his will 'should dispute any part of it, they should forfeit all claim under it ; and it was held, that the heir was bound to elect: yet it is well settled, that without such express condition, a will so defectively executed does not impose the obligation of election on the heir ; but that he is en- titled, notwithstanding, to demand and receive the legacy, and at the same time, to take the real estate by descent. Hearle v. Greenbank, (3 Atk. 715 ; 1 Ves. 306, 307;) Carey v. Askew, 1836.] OF PENNSYLVANIA. 510 (City of Philadelphia v. Davis.) (1 Cox, 241; 1 Ves. 492, 496-7;) G-oodrich v. Sheddon, (8 Ves. 481;) Thellusson v. Woodford, (13 Ves. 223.) Now where a condition is necessarily implied by a construction in re- gard to which there can be but one opinion, there can be no good reason why the result or decision of the court should not be the same as in the case of an express condition, and the donee bound to make an election in the one case as well as the other. Seeing, however, that this is not so, the true foundation then of the obli- gation to make an election, must be, because it Avould not be fair or equitable in the donee to accept the gift, and at the same time, do, any thing that would seemingly be in opposition to what is deemed to have been the intention or wish of the donor in relation to it. The intention of the donor or testator ought doubtless to be the polar star in such cases, and whenever it appears from the instrument itself, conferring the benefit, with a certainty that will admit of no doubt, either by express declaration or words that are susceptible of no other meaning, that it was the intention of the donor or testator that the object of his bounty should not partici- pate in it, without giving his assent to every thing contained in the instrument, the donee ought not be permitted to claim the gift unless he will abide by the intention and wishes of its author. So far, also, as the English decisions on this subject, made pre- viously to our revolution, go, I feel myself bound by them as hav- ing become the rules of property ; but I am not disposed to carry the rule of election further, and to extend it to cases, where, if we do not confine ourselves to the valid and operative parts of the instrument, we' are likely to be led into error, by endeavoring to give effect to an intention imputed to the donor, which at best, perhaps, is founded upon mere conjecture. In the case, under consideration, the will and codicils are both invalid and inopera- tive as to the lands in dispute. In fact, they had no existence as regarded the testator at the time of making his will or the codi- cils thereto : he not having then even contracted for the purchase of them, rendered it improbable, if not indeed, impossible, that his mind should have been brought to bear upon them and dis- pose of them in the same manner that he would have done, had they formed at that time a part of his estate. It may, therefore, well be thought to be but conjecture, how he would have dis- posed * of them if he had made or republished his will r*-Mn after they became his property. And certainly, as Lord Commissioner Eyre has said, the heirs ought not to be conjectured out of their rights. But supposing the plaintiff's had had the right upon the death of the testator to have put the defendants to this election, still may it not be questionable whether they could recover the lands in dispute ? This right to recover must depend, I apprehend, 511 SUPREME COURT [March Term, (City of Philadelphia t>. Davis.) upon what is meant by election in such case, and the effect of it. Now that the defendants, immediately upon the death of the tes- tator, became invested, with the title to the lands, not only in law but in equity, and upon that ground recovered the possession of them in the actions of ejectment brought by them for that purpose, cannot be denied. Then unless the receipt of the lega- cies by them under the will since the death of the testator, should have created a forfeiture of their right, at least to the possession, and have transferred it to the plaintiffs, I am unable to discover upon what principle the latter can claim to recover the lands. It cannot be pretended, that by the terms of the will, the lands are given, in any event, to the plaintiffs. On the contrary, it has been decided, that the will or the codicils thereto, had no operation upon them whatever, but that they descended by ope- ration of the statute, passing intestates' estates to the defendants. This would seem to make it necessary then, that there should have been some act done on their part, by agreement or other- wise, by which they passed their right to the land, to the plain- tiffs. An agreement made with such view, is out of the ques- tion ; none is even alleged. Then is the receipt of the legacies, considering it as an election by the defendants to take under the will, sufficient to produce this effect ? Certainly no decision has ever been made, giving such effect to it. A receipt of a legacy under the will has never been held to be a forfeiture of the right to the thing which is acquired by the legatee, through a title paramount to the will, or otherwise than under it. It has been con- sidered at most, as only creating an obligation, to indemnify the disappointed claimant, to the extent of the value of what was designed for him by the will, out of that which is thereby given to the party electing, if it should be sufficient ; and also, as au- thorizing a court of equity, with a view to secure such indem- nity, to sequester that which is elected to be so taken under the will. In no case, however, does election create an absolute for- feiture, when the value of the thing elected to be taken under the will, is more than sufficient to make a compensation to the disappointed party, equal in value to his loss ; for if there should remain a surplus beyond that, the party electing is entitled to it; indeed, it does not belong to a court of equity, at any rate, to pronounce forfeitures, or to impose penalties ; on the contrary, it often relieves from them ; and that too in cases where they have been created by the express agreement of the party himself seeking relief, through his neglect to perform his engagement r*511 accor ding t the tenor thereof. In these *cases it is generally granted, if the loss or injury sustained by a failure to fulfil the agreement, be of a nature to admit of com- pensation. In cases of election growing out of wills, where no 1836.] OF PENNSYLVANIA. 512 (City of Philadelphia 0. Davis. ) condition, alternative, or forfeiture is declared or provided for in terms, it is only for the purpose of compelling that to be done, which is considered barely equitable and no more, that a court of chancery can interpose and exercise its authority. Compensa- tion or indemnification then, I take it, is the most that a court of equity can decree in such case ; and that is done generally, out of the money or property given by the will to the party electing, by sequestering it, so far as may be necessary for that purpose. And unless the disappointed party has a lien for his compensa- tion on this fund, I am inclined to think that he can have none upon any other. And if this be so, I can perceive no possible ground upon which the plaintiffs here can claim to recover the possession of the lands in question. For without having, at least a lien upon them, in their favor, there is not even the shadow of a right to entitle them to it. To hold that the obligation of election gave the plaintiffs a right to recover the lands in question, would be carrying it beyond every thing that has ever been thought of, even of late in England. It is quite certain that the defendants never received the legacies upon any agreement, or as a consider- ation for surrendering any portion whatever of their right to the lands : such a thing could never have entered into their minds, and of course their assent could never have been given to such a proposition, either impliedly or otherwise : and nothing but a very ingenious and artificial course of reasoning, could ever bring the mind to the conclusion, that the testator could have contemplated the requisition of such assent ; and 1 am not satisfied, but it is a stretch of power on the part of a court of equity, at all times, to interfere with the rights of a legatee or devisee in such case. It is most likely, Lord Commissioner Eyre thought so, when he said, "Putting a devisee to his election, however just and reasonable it may be, was certainly a strong operation of a court of equity." (1 Ves. jr. 523.) But taking this case to be a case of election, and that the plaintiffs acquired a lien upon the lands in dispute by the de- fendants receiving their legacies, and under such lien had the right to retain the possession of them until compensation were made ; and beyond this I think it is impossible to raise the color of claim to the possession of the lands, may it not admit of some doubt, whether, after having suffered that possession to be re- covered from them, they can now sustain an action to recover it back. Though, generally, I admit nothing short of two judg- ments, rendered in an action of ejectment between the same par- ties, in favor of the same one of them, is sufficient to form a bar to another action, founded on the same claim to the land be- tween them, yet I am not altogether satisfied, that this rule ex- tends to the case of an ejectment brought merely *as a r*-|q-i substitute for a bill in equity, to obtain what in effect is L 513 SUPREME COURT [March Tern,, (City of Philadelphia . Davis.) considered equivalent to a decree of specific performance, or the possession of the land as a pawn or pledge for the payment of a debt or sum of money ; for, it may, possibly, be thought that the only question presented in such cases, is one of personal duty, arising out of a mere personal obligation, and therefore, accord- ing to analogy, one decision ought to settle it. This question, however, being out of the case, I intimate no opinion in regard to it. Again, admitting that the receipt of the legacies by the defendants, gave the plaintiffs a right to the possession of the lands, until they should be compensated or indemnified ; quaere, whether, they being in the possession of them at the time, ought not to have set that up as a defence in the former actions of eject- ment ? or was it competent for them to waive such equitable de- fence, and after having done so, to make it the ground of recovery of the possession again in this action ? It may not be proper to attempt an answer to these questions before they arise, which pos- sibly may never happen in the case of an election, as it may not be thought advisable to make the experiment, after the decision of the court in this case. If, however, it be as I think it is, that the disappointed party cannot claim and recover that which is held by the legatee, as the lands in this case are by the defendants, under another and different title from the will, after having received the legacy with- out objection, it may be thought that he ought to have a remedy by a personal action against the legatee to recover from him, at least as much of the legacy received, as would compensate for the loss. Such action may possibly be sustained, but then, per- haps, it may be made a question, whether all reasonable vigilance ought not to be used by the plaintiff, in order to avoid the ne- cessity of bringing it, by giving notice within a reasonable time, to the executors not to pay the legatee, until the objection to his receiving the legacy, on the ground of its being a case of election, shall be settled and removed ; and by undertaking at the same time to indemnify and save the executors harmless, for withhold- ing payment ; because there are cases where an objection to the payment of money may be held good in equity, to prevent the receipt of it, but not sufficient to enable the party, who might have interposed the objection, to maintain an action for it, after it shall have been paid without objection. I am not prepared to say, but that a party claiming to recover in such an action, might by his neglect or acquiescence, have his demand exposed to this objection. In the course of the argument it was insinuated, that the executors in such case, might be made to pay the legacy a second time, though no notice not to pay it to the legatee had been given them ; but I think it very clear, that this proposition is altogether untenable ; for without notice, they have not the means of knowing whether it be a case of election or not ; and 1836.] OF PENNSYLVANIA. 514 (Pullenfl. Rianhard.) therefore are not bound or presumed *to know, and will r*c-|4.-i stand justified in paying it to the legatee named in the will. Under every view almost, that can be well taken of the case, the Court are satisfied, not only upon authority, but upon reason and principles of sound policy, that the plaintiffs are not entitled to recover. Judgment must therefore be entered for the defend- ants. Judgment for defendants. SERGEANT, J., took no part in the decision of this case. Cited by Counsel, 5 Wharton, 62 ; 3 Harris, 476 ; 9 Wright, 18. Cited by the Court, 3 Harris, 451 ; 11 Wright, 381. [PHILADELPHIA, APRIL 28, 1836.] PULLEN against RIANHARD. IN ERROR. 1. A house and lot of groxmd were conveyed, by deed of bargain and sale, to a trustee, his heirs and assigns, in trust to permit S., the wife of J., to take the rents and profits for her separate use as if she were a feme sole, so that the same should not be subject to the debts of her husband ; and after her death, to such uses as she should appoint by will, and in default of such appointment, and in case she should not dispose of the premises at private sale, which she was thereby authorized to do when- ever she could dispose of the same to the benefit of herself and children, then to and for the use of such child or children as she should leave, &c . An action on the case for obstructing a right of way, was brought against J. and 8. his wife, and judgment was obtained against both, under which the premises were levied upon by the sheriff and sold : Held, that the purchaser acquired no title. 2. Real estate settled to the separate use of S., a married woman, was sold by the sheriff on a judgment against her and her husband in an action of tort, and purchased by A.; who after receiving his deed, commenced proceeding, under the act of 1802, before two justices, to obtain posses- sion. B. the trustee of S., claimed title, and the justices stayed proceed- ings. B. neglected to prosecute his claim at the next Court of Common Pleas ; and pending an application to the Court to be allowed to file the record nunc pro tune, an agreement was signed, headed with the name of A. as plaintiff, and the husband and wife, defendants, and entitled as of the proceedings before two justices, and signed by the attorneys for the plaintiff and defendants, and by B. the trustee ; by which it was agreed that the question, whether the plaintiff, as sheriff's vendee, was entitled to possession, should be referred to three gentlemen of the bar ; and if it should be determined, that he was so entitled, B. was to sur- render possession without further delay or controversy, &c. : The ref- erees awarded that A. as sheriffs vendee was "entitled to the possession 514 SUPREME COURT [March Term, (Pullen c. Rianhard.) of the property in dispute." In ejectment by B. against A. (who had obtained possession,) it was htld, that this award was not conclusive of the title to the premises, so as to prevent a recovery by B. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of T*"1 ^1 ejectment, *brought by Robert Pullen, trustee of Sophia " Johnson against James Rianhard, to recover possession of a messuage and lot of ground situate in the township of Ger- mantown in the same county. The title of the plaintiff' was as follows: John P. Johnson, under whom both parties claimed, being seized of the premises, conveyed the same, on the 1st of July, 1824, to Samuel Castor, who on the 8th day of the same month, conveyed the same to John M'Clure, on the following trusts, viz. " In trust nevertheless, and to and for the uses, intents and purposes following, that is to say, in trust to permit Sophia Johnson, the wife of John P. Johnson, of said Germantown, cabinet-maker, for and during all the term of her natural life, to occupy, demise and dispose of the said hereby granted premises and every part thereof, and to take, receive and enjoy the rents, issues and profits of the same, to and for her own sole and sepa- rate use, benefit and behoof, as if she was a feme sole, and in such way and manner as that the same or any part thereof shall not become subject or liable to the payment of the debts or engage- ments of her said husband, and so that no present or future cred- itor of her said husband shall be able to take, seize or enjoy the same or any part thereof: she, the said Sophia Johnson, paving all the taxes on the said hereby granted premises, and making all necessary repairs thereof; and from and after the decease of the said Sophia Johnson, then to and for such uses, intents and purposes as she, the said Sophia Johnson, by any instrument of writing in nature of a last will and testament, by her signed in presence of two or more witnesses, who shall attest the same by subscribing as witnesses, shall or may, notwithstanding her cov- erture, order, direct, limit and appoint; and in case -of no such appointment, and in case the said Sophia does not dispose of the aforesaid premises at private sale, which she is hereby authorized to do whenever she can dispose of the same, to the benefit of her- self and children, and the said John M'Clure, his heirs, executors, administrators and assigns, in case the said Sophia should dispose of the aforesaid premises at private sale, are hereby enjoined each and every of them to execute such writing or writings as shall be required by law, then to and for the use and behoof of all and every the child and children of the said Sophia Johnson, born or to be born, who shall be living at her death, to be divided 1836.] OF PENNSYLVANIA. 515 (Pullen v. Rianhard.) among them according to the intestate laws of this common- wealth." John M'Clure, the trustee, having died, the Supreme Court, on the application of the cestui que trust, appointed John Bar- well in his place ; and he also dying, Robert Pullen, the plaintiff, was substituted in the trust. *The defendant claimed to hold the premises, as a pur- j-^r-j ,-i chaser at a sheriff's sale, under the following circum- L stances : To June term 1826, of the District Court for the City and County of Philadelphia, William Hargesheimer instituted an action on the case against John M'Clure, John P. Johnson, and Sophia Johnson, his wife, and Ludwick Shaffer, to recover dama- ges for an alleged obstruction of the plaintiff's right of way. John M'Clure, one of the defendants, died shortly after the com- mencement of the action. On the trial, which took place on the 1st of November, 1827, the jury gave a verdict against Johnson and his wife for $1000, " if the obstructions were not removed before the 1st day of January, 1828, but if removed by that time, then for 6 cents damages and 6 cents costs." The obstructions not having been removed, judgment was finally entered upon the verdict for $1000, and a Avrit of fieri facias issued, which was levied upon the premises in dispute in this action ; and upon a writ of venditioni ezponas, the sheriff sold the same to the de- fendant, James Rianhard. After obtaining the sheriff's deed, Rianhard proceeded to obtain possession of the premises. For this purpose he instituted proceedings before J. L. Woolf and P. F. Fritez, Esqrs. two justices of the peace, under the act of 6th April, 1802. John Barwell, the then trustee of Sophia Johnson, appeared before the justices and made the following affidavits : " John Barwell, being duly sworn, saith that he is in the lawful possession of the premises described in the writ of summons : that he hath not come into possession thereof, and doth not claim to hold the same by, from or under the defendants, or either of them named in the execution, by virtue whereof the said premises were sold, and that the title to the said premises is disputed and claimed by this deponent." The security required by law having been given, no further proceedings took place before the justices. Barwell, however failed to comply with the condition of his recognizance to the justices, and did not prosecute his claim at the next Court of Common Pleas ; in consequence of which the recognizance became forfeited, and suit was subsequently brought thereon. He then applied to the Court of Common Pleas for leave to file the record of the proceedings before the justices, and to prosecute his claim nunc pro tune; and pending this application, the following agreement was made : 516 SUPREME COURT [March Term, (Pollen t>. Rianhard.) [Proceedings before Justices Woolf and Fritez. JOHN P. JOHNSON & WIFE. ) It is agreed that the question, whether the plaintiff, as sheriff's vendee, is or is not entitled to the possession of the property in dispute, shall be referred to William Smith, Esq., John M. r*^171 Scott, Esq., *and Edward Ingersoll, Esq. : and if it be determined by the said referees, that he is so entitled, the claimant, John Barwell, will surrender the same to him with- out further delay or controversy : and if it be determined by the said referees, that he is not so entitled, then the above proceed- ings to be abandoned by the said plaintiff. In the meanwhile no further proceedings to be taken by either party. The said referees to meet as early as convenient to themselves, giving no- tice to the counsel who have signed this agreement. The said referees to have the same power as the jury to assess damages, and the costs to be paid in the same manner as if the proceedings had been determined in the usual form. The referees having in the first instance referred to them any right or discretion, which the Court of Common Pleas may have as to the filing of the pro- ceedings nunc pro tune. G. M. DALLAS, for Defendants. WM. RAWLE, Jr. ) ^ . ,.,r S.CIIEW, I for Plaintiffs. JOHN BARWELL, trustee of Sophia Johnson." On the 27th of January, 1830, the referees made their award in writing as follows : " RIANHARD j v. V JOHN P. JOHNSON & WIFE. ) We, the referees named in the annexed agreement, having heard the evidence adduced by the plaintiff and defendants, and the ar- guments of their respective counsel, do award, " that the plain- tiff, as sheriff's vendee, is entitled to the possession of the prop- erty in dispute :" and we do further, in pursuance of the authority to us given, assess damages against the defendants for the unjust detention of the premises at three hundred dollars. WM. SMITH, JOHN M. SCOTT, EDW. INGERSOLL." The defendant, Rianhard, was afterwards put in possession of the premises by virtue of proceedings again commenced under the act of 1802. 1836.] OF PENNSYLVANIA. 517 (Pullen v. Rianhard.) On the trial of the present ejectment in the District Court, the jury, by agreement of counsel, found a special verdict setting forth the conveyance, under which the plaintiff claimed, which was stated to be "for a good and lawful consideration," and the other circumstances above mentioned ; and concluded, " The jury find for the plaintiff with 6 cents damages and 6 cents costs, if the law be, that *the interest and right of the cestui que r*z~\ o-\ trust did not pass by the sheriff's deed to the defendant, * and, also, th.at the submission and award given in evidence, do not bar the plaintiff in this ejectment : but if the law be with the defendant on either of these points, then they find for the de- fendant." The District Court rendered judgment for the defendant on this verdict ; and the plaintiff took a Avrit of error ; and on the return of the record, assigned the following errors : "1. The judgment should have been for the plaintiff and not for the defendant. 2. The interest and right of the cestui que trust did not pass, by the sheriff's deed, to the defendant. 3. The submission and award given in evidence, did not bar the plaintiff in this ejectment." Mr. Randall and Mr. Dallas, for the plaintiff in error. 1. The defendant claims to hold this property as a purchaser at sheriff's sale, of the interest of Mrs. Johnson. This is the only ground for his claim. Johnson, the husband, had no in- terest in it, having conveyed it to Castor more than three years before the judgment against him. Fraud in the conveyance is negatived by the special verdict. The question then is, whether, upon a judgment against a husband and wife in an action for a tort, the separate real estate of the wife can be taken in execu- tion. There is no authority whatever to support the affirmative of this proposition. The English cases are all collected in Clancy ; and although it is difficult to collect from them a satis- factory rule with respect to the contracts of a married woman in regard to her separate estate, yet they afford no support to the doctrine on the other side. Whatever may be the state of the law there, and in New York, since the case of The Methodist Church v. Jacques, (3 Johns. C. R. 108,) the rule is placed on a safe and intelligible ground in Pennsylvania by the case of Lan- caster v. Dolan, (1 Rawle, 231,) where it was held by this Court, that a feme covert, in respect to her separate estate, is to be deemed a feme sole only to the extent of the power clearly given by the instrument, by which the estate is settled, and has no right of disposition beyond it. That case has sometimes been doubted in other Courts, but certainly without reason. [GiBSON, SUPREME COURT [March Term, (Pullen v. Rianhard.) C. J. We have had occasion lately to reconsider the principle of that case, and it has been distinctly re-affirmed. We see no rea- son for deviating in any degree from the rule there laid down.] Taking that case then to be the settled law, it must be decisive of this question. The deed under which the plaintiff claims to re- cover, gives the rents and profits merely to Mrs. Johnson for the terra of her life, with a power to dispose of the estate during her ^ e ' "f r the benefit of herself *and children," and to appoint it by will. There is no authority to subject it to her husband's debts, or to make it liable for his torts or her own. Clearly then, if she had made a disposition of the estate to pay off this judgment, it would be invalid. A fortiori must an adversary proceeding be a nullity as respects this estate. If it could be made liable in any way, the trustee ought to have been made a defendant ; yet, although M'Clure was joined at first, after his death the succeeding trustee was not substituted in the action. 2 Bos. & Pul. 93. 2. The submission and award related merely to the question of f>osseni'>n, and are therefore not binding upon the title. The reference, if it was made in a judicial proceeding, was in the case before the justices, under the act of 1802 ; the object of which was to get possession. The referees had no power beyond that of the justices. Lennox v. M l Call, (3 Serg. & R. 104;) Simp- *m v. Ja<'lc, (13 Serg. & R. 279 ;) Barfiman v. Reiyart, (3 Penn. Rep. 207;) Gratz v. Gratz, (4 Rawle, 437;) Baynev. Gailor, (3 Watts, 301.) If the submission is to be considered at common law, then not having been entered into by the parties themselves, it is void. At all events the agreement cannot bind Mrs. John- son. In Gratz v. Phillip*, (1 Penn. Rep. 333 ;) two of the Judges were of opinion, that &feme covert was not bound by her husband's agreement. [GiBSON, C. J. The Court was equally divided on that point, when the case first came up. Afterwards Judge Kennedy, who had come on the bench in the interval, joined in the opinion which I expressed, and which is reported in 1 Penn. Rep. 357, that the agreement was not binding on the woman.] Mr. Clew and Mr. Jlawh, for the defendants in error: 1. If the law be as contended for on the other side, a married woman with separate property, is in this state, to be considered out of the reach of justice, and may commit torts with impunity. In England, it is true, her person may be taken in execution for a tort committed jointly with her husband; but here it would seem that her person is exempt. The act of 1819 declares, that no female shall be arrested or imprisoned for any debt. [KEN- NEDY, J. That act is expressly confined to debts contracted, 1836.] OF PENNSYLVANIA. 519 (Pullen v. Rianhard.) has never been supposed H to extend to torts.] Then the act of 1807 forbids the issuing of a ca. sa. where the defendant has no real or personal estate. [KENNEDY, J. That is, real or personal estate which may be taken in execution upon the judgment.] The law ought not to favor such trusts, if they are to go this length. The principle of all the cases is that a feme covert, with separate property, is to be considered &feme sole. Clancy. 282; and Newlin v. Newlin, (1 Serg. & R. 275.) By this deed she has the power of sale, and a power of appointment by will. With these powers, she is to be considered *as possessed of r*con-i the absolute estate. Why should not her estate whether it be a life estate or fee simple be bound by a judg- ment ? It is settled, that a judgment in Pennsylvania is a lien on an equitable interest, and indeed on every kind of interest in land. Burd v. Dansdale, (2 Binn. 91 ;) Read v. Morrison, (12 Serg. & R. 21.) In Savoy v. Jones, (2 Rawle, 343 ;) a lien for build- ing, was held to exist as against afeme covert and remainder-man. [GiBSON, C. J. That was a proceeding in rem, by the express direction of an act of assembly.] . 2. The submission was of the question of title, and the award ought to be binding and conclusive. It is true, that proceedings before two justices relate to the obtaining possession, but as soon as an affidavit is made, and the cause is removed to the Common Pleas, it becomes an action of ejectment, and the question of title is involved. When the submission was made, the cause had been dismissed by the justices, on the ground that the title to the property was claimed by the trustee. The reference was to three gentlemen of the bar ; and it is not to be supposed that the mere question of possession was referred to them. [ROGERS, J. It appears to me that it lies on you to show affirmatively, that the title was in question. We have always assimilated the proceed- ings to the action of ejectment, when they have been transferred to the Common Pleas. KENNEDY, J. The argument would give to these proceedings greater force and effect, than an award in action of ejectment, which, under the act of 1705, is equivalent to the verdict of a jury, but no more.] There was no action in Court at the time of the submission ; which therefore is to be considered as at common law, and the award in such cases is held to be conclusive. Davis v. Harvard, (15 Serg. & R. 165 ;) Zeigler v. Zeigler, (2 Serg. & R. 289 ;) Watson on Awards, 8 ; Kyd on Awards, 381 ; Shepperd v. Ryan, (15 Johns. Rep. 497 ;) Burton v. Todd, (3 Johns. Rep. 368.) It is true that the agreement was signed by the attorneys, but it was ratified by the parties after- wards ; and whatever may be the law as to the right of the hus- band to bind the wife, in this case the agreement was signed by her trustee, who was her legal representative. 3 Viner, 62, tit. 520 SUPREME COURT [March Term, (Pullen v. Rianlianl.) Arbitration ; 1 Com. Abr. 384, tit. Arbitrament, D. 2, E. 7 ; 3 Caine's Rep. 250; Somers v. Balabreya, (1 Dall. 164;) Jackson v. Graham, (2 Caine's Rep. 188 ;) Finch v. Dalton, (2 Strange's Rep. 1237 ;) Lanystaft v. Eain, (1 Wilson's Rep. 149.) The opinion of the Court was delivered by KENNEDY, J. The chief question here, is settled by the prin- ciples laid down in the case of Lancaster v. Dolan, (1 Rawle, 231.) In that case, the conveyance to the trustees, was upon trust " to permit the party, (who at the time was a feme sole, but r*roi-i contemplated *being married,) to use, improve, occupy, possess and enjoy ; and to receive all and singular, the rents, issues and profits," and it was considered that the trustees took the estate with the use executed. The Chief Justice who delivered the opinion of the Court says, " a use thus limited to any other than a married woman or feme in contemplation of marriage, would be executed ; but it is immaterial whether the trust be to pay a married woman the profits, or to permit her to receive them, it being necessary to a separate provision, that the legal estate should remain in the trustees, to prevent the husband from taking the profits, and defeating the very object of the con- veyance." It is certainly true, that a distinction has been made between a devise to a person to pay over the rents and profits to another, and a devise in trust to permit another to receive the rents and profits. In the first case it lias been held that the legal estate should continue in the first devisee, so that he might per- form the trust, because without having the control of the estate, he could not receive the rents and pay them over as directed ; Neville v. Saunders, (1 Vern. 415.) 13ut in the second case, it has been adjudged that the legal estate is vested by- the statute of uses, in the person who is to receive the rents. Bouyhton v. Lanyley, (2 Ld. Raym. 873.) This distinction, however, as the Chief Justice has said in Lancaster v. Dolan, does not exist in the case of &femc covert, where the estate is conveyed or devised to trustees for her separate use. The courts in such case will, if possible, construe the grant or devise, so as to vest the legal estate in the trustees, for the purpose of carrying into execution, in the most effectual manner practicable, the intention" of the donor. ffarton v. Harton, (7 Term. Rep. 648 ;) 1 Cruise's Dig. tit. 12, Trust, ch. 1, pi. 15, pa^e 456, and pi. 19, page 457. As to the intention of the donor in this case, there can be but one opinion respecting it. It is most unequivocally declared to be to give the wife the separate use and benefit of the estate during her natural life, without subjecting it to the control of her husband, or to liability in any way whatever, for the payment of his debts. This being the intention expressed in the deed, it is manifest that 1836.] OF PENNSYLVANIA. 521 (Pullen v. Rianhard.) it would be entirely defeated, if it were to be held that the use was executed in the wife ; for this would be putting the estate under the control and direction of her husband, so as to enable him to take the rents in despite of her, and to dispose of them as he pleased. The design, therefore, of the donor, can only be carried into effect, by considering the legal estate as vested under the deed in the trustee. That this was intended, is still further indicated by the clause giving the wife the power to dispose of it for the benefit of herself and children, which requires the trus- tees, in case of such disposition being made by her, to execute such writing as should be required by law to carry it into effect ; which could be of no avail, and was unnecessary, unless he thought he was investing him with the legal estate. ^Seeing then that the legal estate became thus vested in the trustee and not in the wife or *her husband, how could it be taken in execu- r+^on tion, and sold as their property, under a judgment "- against them ? To this, it has been answered, that the equitable estate, at least, was in the wife in the same manner as if she had been a feme sole ; and that any interest in land in Pennsylvania, whether of a legal or equitable nature, is liable to be taken in execution. That this latter branch of the proposition, when such interest is not restricted to a special use in a limited form, may be true generally, cannot perhaps be denied. But here, admitting the wife to have had an equitable interest, it was only to receive the rents or profits of the estate for her own private and separate support and maintenance ; and in case she sold or rather contracted for a sale of the estate under the authority given her in the deed, then to receive the proceeds thereof, for the benefit of herself and children, without being subject to the control or authority of her husband in any respect whatever. The power of the trustee 'over the estate was interposed between it and the husband, so as to guard and protect it for her benefit against any act of his being made to affect it, either directly or consequentially. Now the judgment under which the sale was made, or the cause of action upon which it was founded, does not appear to have had any connection whatever, with the support, comfort, maintenance or benefit, of either the wife or her children ; but on the contrary, it seems to have been for a tort committed by the husband and wife jointly ; in which she may be fairly presumed to have joined under force of his authority ; which would in effect be subjecting the estate to the will of the husband, contrary to the tenor of the deed creating the trust, and the intention of its author, if it were to be held liable to redress the party injured by such acts. Be- side, as it is impossible to conceive that the wife could have derived any benefit from the transaction upon which the judg- ment was founded, it is difficult even in an equitable point of 522 SUPREME COURT [March Term, (Pullen v. Rianhard.) view, to discover any good ground upon which the sale can be supported ; because, I take it, that the right to take in execution a mere equitable interest in lands is rather founded upon princi- ples of equity and natural justice ; inasmuch as it cannot be done at law in England, whence we derived our principles of jurispru- dence. I however, do not wish to be understood as saying that the wife was not liable to be sued with her husband, for their joint wrongful act ; because by law, she undoubtedly may in many cases ; see Com. Dig. tit. Baron & Feme. (Y. ;) Draper v. Fulkes, (Yev. 166, in Mr. Metealf's note ;) 2 Saund. on PI. & Evi.572; but merely to say that in a moral and conscientious point of view, the blame chiefly rests with him ; for if not committed in obedi- ence to his authority, he could and ought to have restrained her as well as himself from doing it. It is clear, therefore, that to hold, that the sale made under the judgment in this case, divested the trustee of the estate, and extinguished the trust, would be to frustrate the sole and entire object of its author ; and to permit r**2TI * ne es ^ e * k e disposed of in a manner *diflferent, as J well as appropriated to uses altogether foreign from that authorized and prescribed by the deed of trust ; which would be overruling what is laid down in Lancaster v. Dolan; that even the cestni que trust herself, cannot exercise an authority over the estate, so as to divert it from the defined object of the trust, further than she is expressly empowered to do so by the terms of the deed ; and then only in the manner and form prescribed by it. This brings us to the conclusion, that the plaintiff is enti- tled to recover, unless he be estopped by the award of the arbi- trators. The submission under which the award was made, has express reference to a summary proceeding commenced before two jus- tices of the peace, therein named, by the defendant as a pur- chaser at sheriff's sale of the property in dispute ; which could only have been instituted under the act of the 5th of April, 1802, entitled, " An act to enable purchasers at sheriff's and coroner's sales to obtain possession." According to the terms of the sub- mission, the question was, " whether the plaintiff (that is the de- fendant, who was the plaintiff in that proceeding,) as sheriff''* vendee is, or is not, entitled to the possession of the property in dispute." It is therefore fairly inferrible that the only question submitted to the decision of the arbitrators, was, whether agree- ably to the provisions of the act, the plaintiff in the proceed- ing, commenced by him under it, was entitled, he having the sheriff's deed for it, duly acknowledged in, and certified under the seal of the proper court, to recover the possession. Now it is pretty obvious from the preamble of the act, that the great 1836.] OF PENNSYLVANIA. 52'3 (Pullen v. Rianhard.) object for passing it, was to put the purchaser at sheriff's sale, in possession of the land bought by him, without any unreasonable delay ; and that too, whether the sale was valid or not, so he had a deed for it, acknowledged and certified as mentioned above ; because from the inability generally of the owners of lands, so sold, to compensate the purchasers at sheriffs' sales, for the in- jury and loss arising from the great delay that attended the re- covery of the possession in ejectment, which was the only remedy then in being, and one where the regularity and validity of the sales could be investigated and decided on ; the latter had fre- quently sustained great damage, and been put to much expense without the possibility of remuneration ; but still, leaving the owner of the land after he should be evicted from possession by this proceeding, to bring his action of ejectment without preju- dice, and thus have the validity of the sale tested. This is de- monstrated by the terms of the first section of the act, which makes the sheriff's deed, in such summary proceeding, if duly acknowledged in and certified under the seal of the proper court, conclusive evidence of the sale ; and further provides, that no certiorari, which may be issued to remove such proceedings, shall be a supersedeas, or have any effect to prevent or delay the de- livery of the possession. A judgment in a proceeding under this act, against the defendant, is not even equivalent in its effect to a *judgment in ejectment, though it seemed to be doubted r+coj.-] by the counsel for the defendant, Avhether it was not con- *- elusive. The whole scope and design of -the act, as may be plainly collected from the several parts of it, show clearly, that such judgment ought not to be any bar or impediment to the mainte- nance of as many actions of ejectment afterwards, between the parties, as if there never had been a proceeding under the act. Indeed, it would have been unjust, had it provided otherwise ; for the title to the land, or the validity of the sheriff's sale, can- not be brought in question 'or inquired into. Considering then, the arbitrators as substituted for the justices and the inquest, for the purpose of passing upon the defendant's right to the pos- session under his sheriff's deed, upon the same ground that the justices and the inquest should have done, which I am rather in- clined to think, meets the design and intention of the parties best, the award ought not to have any other or greater effect than a judgment rendered by the justices and the inquest ; which would have had, as I have shown, no effect in barring the plaintiff here of his right to recover. But, even supposing the submission had been intended to embrace the title to the land between these par- ties, and that it is to be considered, as a submission and an award at common law, it does not appear that they all gave their assent to the submission. Without this, the award cannot be considered VOL. i. 35 524 SUPREME COURT [March Term, (Pullen v. Rianhard.) as possessing any binding effect whatever. Sophia Johnson, the cettui que trust, who had certainly a much greater interest in the matter than any other, never signed or assented to the submission. For although it appears to have the name of a gentleman of the bar to it, as attorney for the defendants, meaning Johnson and his wife, who are set down as the defendants in the caption to the submission, yet it does not appear, that he had any authority from the wife to do this. It may and most likely was done at the in- stance of the husband ; which would not bind her in a common law submission in such case. But this form of signing the submission among other things, also tends to show that it was rather con- sidered as a continuation of the same proceeding, and for the same end with that commenced before the two justices of the peace. Upon the whole, we are satisfied, that the judgment of the Dis- trict Court ought to be reversed, and that judgment here ought to be rendered for the plaintiff. Judgment for the plaintiff. Cited by Counsel, 3 Wharton, 312 ; 4 Id. 449 ; 5 Id. 122 ; 10 Watts, 224 ; 7 Watts & Sergeant, 346 ; 7 Barr, 487 ; 5 Harris, 437 ; 11 Casey, 136 ; 8 Wright, 227 ; 7 P. F. Smith, 510. Cited by the Court, 10 Wright, 399 ; Brightly, 141. See also, 2 Wharton, 11. END OF MARCH TERM, 1836. APPENDIX. [APRIL, 1836.] THE COMMONWEALTH v. EARLE.* 1. It is not a sufficient reason for allowing a writ of error, after conviction upon an indictment for murder by poison, that the indictment did not aver that the prisoner knew the substance employed to be a deadly poi- son ; nor that the indictment did not aver that the poison was given to the deceased by the prisoner or any one else. 2. On an indictment for murder, perpetrated by means of poison, a verdict finding the prisoner " Guilty in manner and form as stated in the indict- ment, " is a conviction of murder in the first degree, and sufficient to au- thorize the judgment of death. AT a Court of Oyer and Terminer held at Williamsport for the County of Lycoming, at November Term, 1835, John Earle was arraigned upon the following indictment : " Lycoming County, ss. The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the body of the county of Lycoming aforesaid, upon their oaths and affirmations respectively do present, that John Earle late of Lycoming County aforesaid, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, and of his malice afore- thought, wickedly contriving and intending a certain Catherine Earle, with poison, wilfully, feloniously and of his malice afore- thought to kill and murder, on the fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty- five, and on divers other days and times between the said four- teenth day of October in the year last aforesaid, and the seven- teenth day of October in the year last aforesaid, with force and arms at Lycoming County aforesaid, did knowingly, wilfully and feloniously, and of his malice aforethought, put, mix and mingle certain deadly poison, to wit, white arsenic, in certain chocolate which had been at divers days and times during the time afore- said prepared for the use of the said Catherine Earle, to be * I have been favored by the Chief Justice with the materials for the report of this case, which it is believed will be interesting to the profes- sion. REP. 526 SUPREME COURT [Appendix. (Commonwealth . Earle.) T*^9fi1 drunk by her * the said Catherine Earle; he the said -" John Earle then and there well knowing that the said chocolate with which he the said John Earle did so mix and min- gle the deadly poison as aforesaid, was then and there prepared for the use of the said Catherine Earle, with intent to be then and there administered to her for drinking the same ; and the said chocolate with which the said poison was so mixed as aforesaid, afterwards to wit, on the said fourteenth day of October in the year last aforesaid, and on the said other days and times, at Ly- coming county aforesaid, was delivered to the said Catherine Earle to be then and there drunk by her ; and the said Catherine Earle not knowing the said poison to have been mixed with the said chocolate, did afterwards, to wit, on the said fourteenth day of October in the year last aforesaid, and on the said divers other days and times there, drink and swallow down into her body, several quantities of the said poison so mixed as aforesaid with the said chocolate ; and the said Catherine Earle, of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October in the year last aforesaid, at Lycoming County aforesaid, became sick and greatly distempered in her body ; of which said sickness and distemper of body, occasioned by the drinking, taking and swallowing down into the body of the said Catherine Earle of the poison aforesaid, so mixed and mingled in the said chocolate as aforesaid, she the said Catherine Earle, from the said several days and times on which she had so drunk and swallowed down the same as aforesaid, until the sixteenth day of October in the year last aforesaid, at Lycoming County afore- said, did languish, and languishing did live : on which said six- teenth day of October, in the year last aforesaid, at Lycoming county aforesaid, she, the said Catherine Earle, of the poison aforesaid, so taken, drunk and swallowed down as aforesaid, and of the said sickness and distemper thereby occasioned did die. And so the inquest aforesaid, upon their oaths and affirma- tions respectively as aforesaid, do say, that the said John Earle, her the said Catherine Earle, in the manner and by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought did -kill and murder, contrary to the form of the Act of General Assembly of this Commonwealth in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania. And the Jurors aforesaid, upon their oaths and affirmations respectively as aforesaid, do further present, that the said John Earle on the said fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty-five as aforesaid, and on divers other days and times between the said fourteenth day of October in the year last aforesaid, and the sixteenth day 1836.] OF PENNSYLVANIA. 526 (Commonwealth v. Earle.) of October, in the year last aforesaid, at Lycoming County afore- said, with force and arms, did knowingly, wilfully, feloniously and of his malice aforethought, place, mix, and mingle certain deadly poison, to wit, white arsenic, in certain tea which had been at divers days and times during *the time aforesaid, r*co7-i prepared for the use of the said Catherine Earle, to be drunk by her the said Catherine Earle ; he, the said John Earle, then and there well knowing that the said tea with which the said poison was mixed as aforesaid, was then and there prepared for the use of the said Catherine Earle, with intent to be then and there administered to her for her drinking the same. And the said tea with which the said poison was so mixed as aforesaid, afterwards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said other days and times, at Ly- coming County aforesaid, was delivered to the said Catherine Earle to be then and there drunk by her ; and the said Catherine Earle, not knowing the said poison to have been mixed with the said tea, did afterwards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said divers other days and times, there did drink arid swallow down into her body several quantities of the said poison so mixed as aforesaid with the said tea ; and the said Catherine Earle of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October in the year last aforesaid, at Lycoming County aforesaid, became sick and greatly distempered in her body ; of which said sickness and distemper occasioned by the drinking, taking, and swallow- ing down into the body of the said Catherine Earle of the poison aforesaid, so mixed and mingled in the said tea as aforesaid, she the said Catherine Earle, from the said several days and times on which she had so drunk and swallowed down the same as afore- said, until the said sixteenth day of October in the year last aforesaid, at Lycoming County aforesaid, did languish, and lan- guishing did live : on which 'said sixteenth day of October, in the year last aforesaid, at Lycoming county aforesaid, she, the said' Catherine Earle of the poison aforesaid, so taken, drunk, ana swallowed down as aforesaid, and of the sickness and distemper thereby occasioned, did die. And so the inquest aforesaid, upon their oaths and affirmations respectively as aforesaid, do say, that the said John Earle, her, the said Catherine Earle, in the manner and by the means last aforesaid, then and there feloniously, wil- fully, and of his malice aforethought, did kill and murder, con- trary to the form of the act of General Assembly of this Com- monwealth in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania." The trial of the prisoner commenced on the 2d of February, 1836 ; and the jury returned a verdict of " Guilty in manner and form as stated in the Indictment." 527 SUPREME COURT [Appendix. (Commonwealth t>. Earle.) The counsel for the prisoner moved in arrest of judgment, and assigned the following reasons : " 1. That it is not alleged in either count in the indictment, that the defendant knew the white arsenic to be a deadly poison, as by law the Commonwealth were bound to allege. r*^O81 *^' ^ uat ^ * s 110 ^ a ^ e & e d m tue indictment that the - chocolate in which it is averred that the white arsenic was mixed and mingled, was given to the said Catherine Earle to drink, either by the said John Earle, or any other person. 3. That the second count does not allege that the defendant in- tended to commit the crime, of his malice aforethought, as is therein alleged he did commit it." A motion for a new trial was also made ; but after Argument the Court overruled botli motions, and passed sentence of death on the prisoner. An application was then made to the chief justice, for a special allocatur to a writ of error ; and the following reasons were as- signed in writing, by Mr. Parsons, counsel for the prisoner. " 1st. That the Court erred in not arresting the judgment on the first reason assigned upon the record. 2d. That the Court erred in not arresting the judgment on the second reason assigned upon the record. 3d. That the jury did not ascertain in their verdict the degree of murder of which the prisoner was guilty : whether of murder in the first or second degree ; as they were bound to do accord- ing to the provisions of the 2d section of the act of 'the 22d of April, 1794. 4th. That the Court erred in pronouncing sentence of death upon the prisoner, as the verdict of the jury is now rendered." " The first reason assigned in arrest of judgment is, ' That it is not alleged in the indictment, that the defendant knew the white arsenic to be a deadly poison, as by law the commonwealth are bound to allege.' In indictments, precedents may be said to be law ; and on a careful examination of the books of forms in criminal cases, but one precedent is found where it is not averred that the defendant knew that the substance was a deadly poison. In Archbold Criminal Pleadings, page 233, the form is so. In 3d Chitty Crim. Law, page 530, the form is thus drawn. In the next page the form is so in the following pages the form is in the same manner ; and it appears to be a very necessary aver- ment for one might innocently administer poison as a medicine, ignorant that it would kill : or it might be given to a sick person through mistake. And the knowledge and intention with which the poison is given, seem to constitute the very essence of the offence in such a case. In Pennsylvania, where there are two degrees of murder, it seems indispensably necessary. The only 1836.] OF PENNSYLVANIA. 528 (Commonwealth . Earle. ) precedent believed to be at variance with the above view, will be found in 3d Chitty, 528 ; and it is believed, that in this case, which was the indictment against Mary Blandy, for the murder of her father, the indictment was drawn to meet the facts of the case. And by a reference to the facts in her *case, it r*coq-i will be seen that her confession was the principal evi- L dence relied upon. It appeared that she had formed an attach- ment, in whidh she was opposed strongly by her father, and that the person to whom she was attached, conveyed to her in a letter some white powders, which he informed her if given to her father, would cause him to change his views upon the subject of her mar- riage. She gave the powders to him, and in her confession denied unequivocally, that she knew they contained a poisonous substance. Now, if it had been averred that she knew that it was a deadly poison, the prosecution would be bound to satisfy the jury of the fact, and probably they might not have been able to do it. In England, such an indictment might be good, but in Pennsylvania, it is submitted, that the law is otherwise ; for in another part of my argument, an effort will be made to show, that one may be convicted of murder in the second degree, where the killing is by poisoning. The second reason assigned in arrest of judgment, and now al- leged for error, is that " it is not stated in the indictment, that the chocolate, in which it is averred that the Avhite arsenic was mixed and mingled, was given to the said Catharine Earle to drink, either by the said John Earle, or any other person." This is believed to be necessary ; for in all cases where a mur- der is committed by a blow, it should be explicitly stated that the same was given by the prisoner. See 2d Hawkins' P. C. If the poison was mixed and mingled by the prisoner, and it was taken by the deceased through mistake, or without his knowledge or procuring, he could not be convicted of murder in the first degree. But what is conceived to be strong ground why a writ of error should be allowed, and why the judgment should be reversed, is, that the jury have not found the degree of murder of which the defendant was guilty. This I believed to be indispensably neces- sary under the act of the 22d of April, 1794. That act places all murder, " perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated kill- ing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, or burglary," upon the same foot- ing. And the act expressly provides, that the jury before whom, any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree. Here is a positive and SUPREME COURT [Appendix. (Commonwealth v. EarleO absolute direction to the jury, as to the form and manner of their finding, and one which cannot be disregarded without violating the act of assembly ; the law is imperative, and it is the duty of the court, to see that a jury find their verdict in accordance with the law. And what adds great force to the view taken of this requisition, is the clause which follows, and which declares, that if such person shall be convicted by confession, the court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. No matter r*cqA-i *in what form the indictment is drawn, nor how the kill- J ing is alleged to be done. No distinction is made by the act, in the finding of the jury, let the charge be made as it may in the indictment. And it is submitted, that the legislature could hardly have found language to have pointed out the duty of the jury in more emphatic terms. But it is alleged, that there is a dictum in the case of the Com- motncealth \. White, (6th Binney, 179,) that militates against this construction. It is, however, a mere dictum, and not the point decided in the cause ; and it is inconsistent with a principle advanced by the learned judge in the preceding sentence. The chief justice, who delivered the opinion of the court, there re- marks, "if the indictment were so drawn as plainly to show that the murder was of the first or second decree, all that the jury need do, would be to find the prisoner guilty in manner and form as he stands indicted." Without stopping to inquire, whether an indictment might be so drawn, as to supersede the necessity of the jury finding the degree, it will be sufficient to show, that the indictment against Earle is not of that character. For there can be no doubt, but that one guilty of killing another by poisdn, may be guilty of murder in the second degree; and a jury under the laws of this state, would have a right so to find. It is the de- liberation, or premeditation with which the act is done, that con- stitutes the crime of murder in the first degree. Suppose, in the case of Mary Blandy, the jury had been fully satisfied that she was ignorant that the powders contained a poi- sonous substance but supposed them to be really what she asserted they were represented to her to be, " Love powders" and that their effect would be to reconcile the father to her choice : might not a jury with propriety find such defendant guilty of murder in the second degree? Other similar cases might be put, yet in all, the indictment would be for murder by means of j>oi*on, as in the case under consideration. Hence, it is submitted, that the indictment in the case of Earle is not so drawn, as to dispense with the necessity of the degree of murder being fixed by the jury, before sentence of death could 1836.J OF PENNSYLVANIA. 530 (Commonwealth t>. Earle.) be given. There is no doubt, but that a penal statute like, this, ought to be construed strictly in favor of life ; and there is as little doubt but that a jury, in a case of killing by poison, should designate the degree of the murder by their verdict, as in any other case ; for supposing the indictment had alleged that the killing was premeditated, would not the jury be bound to find the degree ? In the case of Pennsylvania v. M' Falls, (Addison's Rep. 255,) tried in 1794, and also in the case of Pennsylvania v. Lewis, (Addis. Rep. 279,) tried in 1796, it will be found, that the jury ascertained the degree of murder by their verdict. And it is believed, that it will be found on examination of the criminal records, from the passage of the act of 1794 to this time, that the jury had always found *the degree of murder where r*cq-i 1 judgment has been rendered on the verdict." The case was considered by the Court, then sitting in Bank in Philadelphia ; and the following note of their opinion, was fur- nished \>y the Chief Justice to the Reporter. THE COURT felt itself bound to refuse an allocatur : 1st, Because it is not entirely clear," though the weight of authority from precedent is the other way, that the indictment is insuffi- cient for want of an averment, that the prisoner knew the sub- stance employed to be a deadly poison. In Mary Blandy's case, (1 Hargr. St. Tr. 1,) the prisoner was executed, though the in- dictment contained no such averment. Yet it is undoubtedly the safer course to insert it, ex majori cautela : 2d, Because, such a defect could not by any possibility affect the question of inno- ^ence or guilt before the jury ; and it is not the duty of the Court, for such a cause, to grant a writ of error ; which, being, in criminal cases of grace and not of right, was refused on the same suggestion, in the Commonwealth v. Immel, (6 Binney, 403;) The Commonwealth v. Pennock, (3 Serg. & R. 199,) and The Commonwealth v. Cox, at the present term. 3d, Because the want of an allegation, that the prisoner gave the poison to the . deceased to drink, is clearly immaterial. If delivered by any one else, or taken by the deceased without delivery, the felonious purpose would be equally accomplished, and the guilt the same. 4th, And because, " all murder perpetrated by means of poison," being equally of the first degree, there is neither necessity nor room for discrimination by the verdict, where the degree of the offence charged, is fixed in the indictment. It would be of deci- sive weight, were an authority wanting, that this principle, though not decided, was asserted in White v. The Commonwealth, (6 Binney, 183.) The provision for ascertainment of the degree by verdict, was intended for cases in which the jury might be at liberty to find the prisoner guilty in the second degree ; but, as 531 SUPREME COURT [Appendh: (M'Leod v. Latimer.) in cases of murder by poisoning, the prisoner is guilty, if at all, in the first degree, and as a verdict of guilty in another degree would not be received, the law will not require, though it might endure, the performance of an act so nugatory as an attempt at classification, where there is no difference, or the marking by ver- dict, of a measure of guilt pre-established by the law itself. Allocatur refused. Cited by the Court, 12 Harris, 389. [*532] [* PHILADELPHIA, MARCH 27, 1826.] M'LEOD against LATIMER and Another. IN ERROR. A. being indebted to B. indorsed certain notes for his accommodation, which were discounted by the bank of P. Shortly afterwards A. made an as- signment for the benefit of creditors, stipulating for a release, which was executed by B. but not by the bank. Then B. also made an assignment, stipulating for a release which was executed by the bank. The assignee of A. made a dividend of 50 percent, which was paid to the bank among others, as a creditor upon the notes. The assignees of B. made a divi- dend of 75 per cent, and paid the bank 50 per cent, on the notes ; and at the request of his creditors, his assignees re-assigned the remain- ing property to him. In an action by B. against the assignees of A., it was held, that he was entitled to recover 50 per cent, of the debt due him by A., deducting the difference between the 75 per cent,, the divi- dend payable upon the notes by the assignees of B., and the 50 per cent. actually paid by them to the bank. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case for money had and received, brought by John M'Leod against George Latimer and Joseph Clark. The defendants were assignees of Jehu Hollingsworth under an assignment made on the 28th of June, 1817, for the benefit of creditors ; and the action was instituted to recover the sum of $1266 14, being a dividend of 50 per cent, on the estate of Hol- lingsworth, alleged to be due to the plaintiff. A case was stated by the parties in nature of a special verdict : the material facts of which are set forth in the opinion of the Court ; which was delivered by TILGHMAX, C. J. On the 17th May, 1817, Hollingsworth was indebted to the plaintiff on a running account ; the amount OF PENNSYLVANIA. 532 (M'Leod v, Latimer.) of which was in dispute, but afterwards was settled by arbitra- tors, who awarded $2502 in favor of the plaintiff. The plaintiff drew three promissory notes of $900 each, payable to Hollings- worth, which were endorsed by him for the accommodation of the plaintiff, who had them discounted in the Bank of Pennsylvania, and received the full amount for his own use. The notes were dated 17th May, 17th June and 21st June, 1817, and all payable 60 days after date. On the 28th June, 1817, Hollingsworth made an assignment of all his estate to the defendant, for the benefit of such of his creditors living within the United States, as should execute a release to him of all demands, within four months from the date of the assignment, *and all such living out r*coo-i of the United States as should execute a release within six months from the said date. The plaintiff executed a release within four months, as did also many others of Hollingsworth's creditors. About the time of the execution of the plaintiff's release, (the 19th July, 1817,) the first of the said promissory notes became due, and was protested for non-payment ; and the other two were also protested at maturity for the same cause. The Bank of Pennsylvania, the holders and owners of the said notes, did not execute a release within four months, according to the condition of Hollingsworth's assignment. On the '19th No- vember 1817, the plaintiff made an assignment of all his estate to George Staribridge, Thomas Brown and John Turner, for the benefit of such of his creditors as should execute a release of all demands against him within 60 days from the date of the assign- ment. On the 16th January 1818, the day on which the arbitrators decided, that the debt due from Hollingsworth to the plaintiff amounted to $2502, the defendants wrote a letter to the Presi- dent and Directors of the Bank of Pennsylvania ; in which they told them, " that the signing by them of John M'Leod's release would not in any manner prejudice or weaken the claim of the Bank against the estate of Jehu Hollingsworth, Jr., as indorser of certain notes of John M'Leod, amounting to $2700, protested and unpaid in said Bank." Although the fact is not stated, yet the probability is, that in consequence of this letter the Bank of Pennsylvania executed a release to the plaintiff within the 60 days, prescribed by his as- signment. On the 3d July 1818, the defendants declared a divi- dend of 50 per cent, on the estate of Hollingsworth ; and on the 4th of March 1819, they paid to the Bank of Pennsylvania $1350 99, being a dividend of 50 per cent, on the three notes, including the costs of protest. Early in January 1820, the as- signees of M'Leod declared a dividend of 75 per cent, on his estate ; and on the 24th of that month, they paid the Bank of 633 SUPREME COURT [Appendix. (M'Leod v. Latimer.) Pennsylvania 75 per cent, on their claim against M'Leod on two notes, indorsed by him and drawn by John Bradley, but only 50 per cent, (amounting to $1350,) on the three notes, drawn by M'Leod and indorsed by Hollingsworth as before mentioned. By a writing bearing date the 28th January, 1820, in which it was recited, that the plaintiff had paid 75 per cent, on the amount of his debts, his creditors authorized his assignees to re-assign to him " all the property then remaining in their hands, unappro- priated, whether real or personal, free and discharged of any claim of the said creditors." This writing was signed by all the plaintiffs creditors, the Bank of Pennsylvania included, at differ- ent days between its date and the 8th of February ensuing ; on which last day the plaintiffs assignees, in compliance with the said writing, rcconveyed to him all his property of any kind, then remaining unappropriated in their hands. It is admitted, that by f* f i'Ul v ' rtue f tn i s * reconveyance, the plaintiff became en- titled to a good debt of $600, besides some smaller mat- ters ; and it was contended by his counsel, that he was also en- titled to recover of the defendants 50 per cent, of the $2502, due him on his account against Hollingsworth, with interest from the time that the dividend on I lollings worth's estate was declared by the defendants. A majority of the District Court were of opinion, upon the case thus stated, that the plaintiff was not entitled to recover the whole or any part of his claim. It seems to have been agreed by the counsel on both sides, that the payment made by the defendants to the Bank of Pennsyl- vania, was contrary to the trust declared in Hollingsworth's deed of assignment, because the Bank had not executed a release within 4 months. Supposing then, that by this payment the de- fendants were placed in the situation of the bank, of what could they avail themselves? They could support no claim against the estate of the plaintiff; because it was understood before the payment was made, that the Bank was to execute a release to the plaintiff; neither could they support any claim against the estate of Hollingsworth in their own hands; because the payment to the Bank being contrary to the condition of the assignment, no agree- ment between the Bank and the defendants could give it validity. But if it had been stated as a fact, that the plaintiff was privy and consenting to the letter of the 16th of January, 1818, from the defendants to the President and Directors -of the Bank, it would have barred his recovery in this action; because although the payment to the Bank would have been a nullity, as to those creditors of Ilollingsworth who had released within 4 months, and had given no consent to the said payment, yet the plaintiff would have been estopped from impeaching it, after hav- OF PENNSYLVANIA. 534 (M'Leod v. Latimer.) ing induced the bank to give him a release, founded in part on the consideration of that payment, by which the plaintiff had been a gainer. At present we must not presume the consent of the plain- tiff, because it is not stated as a fact in the case on which we are to decide. It was strongly urged by the counsel for the defend- ants, that the plaintiff's release to Rollings worth enured in equity to the use of the bank, the holder of the three notes drawn by the plaintiff. But I cannot think so. The plaintiff released his own claim, founded not on these notes, but on his account against Hollingsworth. There would have been more reason in saying, that Hollings worth, the indorser of these notes, if he had them, might stand in the place of the plaintiff. But he did not pay them ; on the contrary, he annexed a condition to his assignment, which precluded any payment to the bank; so that the payment which was made, was unjustifiable. It was argued also by the counsel for the defendants, that al- though no previous consent was given by the plaintiff or his assign- ees to the payment made by the defenants to the bank, yet *they ratified it by their subsequent conduct in taking r*r:qc-i advantage of that payment ; in consequence of which a ^ ' dividend of only 50 instead of 75 per cent, was paid to the bank by the plaintiff's assignees. But I cannot say that a ratification is necessarily to be inferred from the fact of a payment of only 50 per cent. What were the plaintiff's assignees to do ? When the bank claimed a dividend of no more than 50 per cent, how could the assignees pay more ? Or how does it appear, that those assignees knew that the payment made by the defendants to the bank, Avas illegal? They might not have known that the bank had not executed a release to Hollingsworth ; and if they were ignorant of that fact, there is no ground for an inference, that the payment made by the defendants was ratified. Granting then, that there has been no legal ratification of the payment made by the defendants to the bank, will the plaintiff be entitled to recover the whole dividend of 50 per cent, on the debt of $2502 due to him from the estate of Hollingsworth ? That I confess would be going further than equity appears to me to war- rant, and consequently farther than should be permitted in this action, in Avhich the plaintiff ought only to recover what the de- fendants cannot in good conscience retain. It is against good conscience for the plaintiff, first to appropriate to his own use part of the money paid by the defendants, and afterwards to insist on annulling that payment altogether, and recovering its whole amount from the defendants. But has he appropriated part of that payment to his own use ? In substance he certainly has. But for that payment the assignees of the plaintiff must have paid a dividend of 75 per cent, to the bank ; instead of 535 SUPREME COURT [Appendix. (Freytagt>. Powell.) which only 50 was paid ; the consequence of which was, that the residue of the plaintiff's estate, remaining in the hands of his assignees, and reconveyed to him by order of his creditors, was increased to the amount of the difference between 50 and 75 per cent, on the dividend paid to the bank. The utmost that the plaintiff can in equity ask, is to be placed in the situation, in which he would have stood if the defendants had paid no dividend to the bank on the estate of Hollingsworth. A calculation has been made and agreed to by the counsel of both parties, of the sum which would be due to the plaintiff on that principle. This sum is $591 14; for which, together with interest thereon from the commencement of this action, I am of opinion that judgment should be entered for the plaintiff. Judgment for the plaintiff accordingly. Cited by Counsel, ante 409. [*536] ['PHILADELPHIA, 1833.] FREYTAG against POWELL and Another. 1. Land in and adjoining the City of Philadelphia, has been never consid- ered to be within the jurisdiction of the land-office, so as to be the sub- ject of grant by warrant, survey and patent. 2. Land on the navigable rivers of Pennsylvania, between high and low water mark, is not within the jurisdiction of the land-office, so as to be the subject of such grant. Tins was an action of ejectment brought in the District Court, for the City and County of Philadelphia, by Michael Freytag against John Hare Powell and George Ticknor, to recover " 27 acres and 157 perches of marsh or cripple land," situate in Block- ley township, in the County of Philadelphia. The cause came on for trial on the 14th of Nov. 1833, before Judge Pettit and a special jury. The plaintiff gave in evidence, the following title: 1. An application by him to the land-office, dated August 9th, 1830, " for 30 acres of land, situate in the County of Philadel- phia, adjoining lands of Richard Harding, on the north ; land , of William Bingham and the late Elizabeth Powell and others, on the west; the Lancaster turnpike road to the south, and the river Schuylkill to the east ; which tract is unimproved. 2. A warrant from the Secretary of the land-office, dated Au- gust 16th, 1830, reciting the above application, and directing OF PENNSYLVANIA. 536 (Freytag v. Powell.) a survey of " the quantity of acres applied for at the place aforesaid, if not already surveyed or appropriated." 3. A receipt from the land-office, dated August 16th, 1830, for the purchase money of the said 30 acres, at the rate of ten pounds for a hundred acres. 4. A survey by David Coombs, deputy surveyor, dated October 12th, 1830, made in pursuance of said warrant of " a tract of marsh and cripple land, situate as aforesaid: the whole tract containing 30 acres and 43 perches. The part retained com- taining 27 acres and 157 perches, being unimproved. The resi- due is two acres and 46 perches, and belongs to the City Cor- poration." On the back of the return of the survey, was this memorandum "Placed in the rejected files in consequence of a decision of the Board of Property of the 5th of December, 1831." *A certified copy of the minutes of the Board of Pro- perty, was then given in evidence by the plaintiff, show- ing that a caveat had been entered at the land-office, by John Hare Powell and others, that a hearing of the parties had taken place, and that the Board of Property had decided on the 10th of December, 1831, that a patent could not issue to Michael Freytag. The application to the land-office was under the act of Assem- bly, of April 1st, 1784, entitled " an act for opening the land- office, for granting and disposing of the unappropriated lands within this state." The action was instituted within the term of six months after the date of the decision of the Board of Property. The plaintiff here rested his case. The defendant claimed title as to part of the land in dispute, under a warrant and survey, and a patent from the proprietary, dated the 16th of the 5th month, 1684, in favor of Barnabas Wilcox, and sundry mesne conveyances. The warrant survey and patent each called for the river Schuylkill as a boundary, the first line being as follows : " Beginning at a white oak by the side of the river Schuylkill;" and the last line being as follows: " from a pine tree standing on the Schuylkill river , thence up the several courses of the said river, to the first mentioned white oak." As to the remaining part of the tract, the defendant claimed under a warrant and survey, and a patemt from the proprietary, dated March 16th, 1692, in favor of Thomas Duckett, and sundry mesne conveyances. The warrant recited his purchase of "a Schuylkill front;" the patent, however, described one line as running from " a corner post standing on the edge of the fast- land, thence along the several courses of the same to a corner post of the burying ground; and another line as running from "a corner post standing by the cripple side, thence along the 537 SUPREME COURT [Appendix. (Freytag ti. Powell.) several courses thereof, to the place of beginning." It appeared that at the date of the patent, a small space was occupied as a bury ing-ground, with a river front dividing the two lines, which, however, in the course of time, ceased to be used for the purpose. The following points were ruled by Judge Pettit, in his charge to the jury : 1. That the Great Town of William Penn, including the City of Philadelphia and the Liberty land, was laid out and surveyed for a special purpose, and was never deemed before the revolution to be within the ordinary rules, by which vacant and unimproved land was sold by the proprietaries, or by their agents acting as land officers. And that the acts of 1781 and 1784, are to be construed as having a reference to this characteristic, previously well known and *understood, and as excluding from the usual jurisdiction of the land office, the land in and near the City of Philadelphia. 2. That if the Duckett Patent of March 16th, 1692-3, under which the defendant claimed title, called for the river Schuylkill as a boundary, then there was nothing upon which the plaintiff's warrant could operate. 3. That land on the navigable rivers of Pennsylvania, between high and low water mark, detached from the land above high water mark, is not within the jurisdiction of the land office, and is not grantable in the usual way, upon the usual terms, by warrant and survey ; and consequently, that if the marsh or cripple land sur- veyed under the plaintiff's warrant, was below ordinary high water mark, the plaintiff could have no title. Upon the first proposition the jury were informed that the law called for a verdict for the defendant. The grounds for the opinion of the Court on all the points, were given at large in the charge. The jury were requested to find specially as to the fact, whether the Duckett patent did or did not call for the Schuylkill river as a boundary, and also, specially, as to the fact, whether the land surveyed under the plaintiff's warrant, was or was not below high water mark. The jury gave a verdict for the defendant, and found specially, that the Duckett patent did call for the Schuylkill river as a boundary, and^ also, that the land surveyed under the plaintiff's warrant, was b'elow high watermark. Verdict for the defendant. Mr. W. White, Mr. Scott and Mr. Rawle, jr., for the plaintiff. Mr. Cadwalader, Mr. J. R. Ingersoll and Mr. Sergeant, for the defendants. Cited by Counsel, ante 471 ; 2 Wharton, 536 ; 8 Watts & Sergeant, 441 ; 8 Harris, 403. AN INDEX TO THE PRINCIPAL MATTERS. \ ACCOUNT RENDER. SEE ARBITRAMENT, 3, 4. ACT OF ASSEMBLY. SEE PENAL LAWS. ACTION. \. "Where a defendant, who had been sentenced by a Court of Quartei Sessions, upon a conviction of for- nication and bastardy, to the pay- ment of a certain gross sum to the mother of the child, and also to the payment to her of a weekly sum for a certain term, applied for and obtained a discharge of his person under the insolvent act, it was held that the mother might maintain an action of debt upon the sentence of the Quarter Sessions, to recover the amount ordered to be paid to her. Hell- ings v. Amey. ' 63 2. The defendant in such action having pleaded payment, with leave to give the special matters in evidence, it was held that the plaintiff was not bound to prove the averment in her declaration, that she had maintained and sup- ported the child during the term, for which the defendant was lia- ble to pay, by the sentence of the court. Ib. And see APPRENTICE. ASSIGNMENT. ADMINISTRATION. One died seised of real estate, leav- ing three daughters, one of whom A., was married to B. By three several deeds the land was parti- tioned between them; but the deed to B. and his wife, recited, VOL. I. 36 that on the death of her father, her share descended to B. and conveyed one-third to him, his heirs and assigns. After the death of B. his widow borrowed money, and gave a sealed note for pay- ment, upon which judgment was entered ; and then she died. C., the son of A . and B. became ad- ministrator, both of his father and mother, and applied to the Or- phans' Court for the sale of the land, as the property of A. to pay her debts. The Court refused the application, on the ground that it was the property of B. The land was afterwards sold by virtue of proceedings on a mortgage given by A. and B. ; the suit on the mortgage being against C. as ad- ministrator both of A. and B. The balance of the purchase money, after paying the mortgage, was brought into court, where it was directed to be paid to C. " admin- istrator, &c. as aforesaid;" and was received by him. In a scire facias, on the judgment above mentioned, brought against C., as administrator of A. it was held, that C. must be taken to have re- ceived the money as administra- tor of A. ; and, consequently, that he was liable for the amount to the plaintiff in the scire facias. Wentz v. Wentz. 201 And see LIMITATIONS, 3, 4. AGENT. See EVIDENCE, 7. AMENDMENTS. 1. In an action of covenant, amend- ments of the declaration assign- 540 INDEX. ing new breaches of the same in- strument on which the original counts were founded, and alleging performance on the part of the plaintiff, in another mode than was alleged in the original counts, are admissible. Coxe v. Tilgh- man. 282 2. In actions ex contractu, so long as the plaintiff adheres to the ori- ginal instrument or contract on which the declaration was found- ed, an amendment making an al- teration of the grounds of recov- ery on that instrument or contract, or of the modes in which the de- fendant has violated it, is admissi- ble. Per SERGEANT, J. Ib. 3. In actions ex delicto, the rule is the same : The foundation of the complaint laid in the declaration must be adhered to ; although the mode of stating that complaint, may be varied by an amendment. Per SERGEANT, J. Ib. 4. A plaintiff having declared in trover for a bond the case was re- ferred, under the* act of 1810, to arbitrators, who made an award in favor of the plaintiff, from which the defendant appealed : Held, that the Court below was right in refusing the plaintiff leave to withdraw the original declara- tion, and substitute one alleging the conversion to have been of certain instruments of writing not under $eal. Tryon v. Miller. 11 5. It sefm* that such an amendment being the substitution of a differ- ent cause of action from that orig- inally stated, is not within the act of 1806, and therefore it is discre- tionary with the Court to which it is offered to admit or reject it ; and their decision in relation to it is not subject to revision upon a writ of error. Ib. APPRENTICE. An apprentice cannot maintain an action against his master to re- cover compensation for extra work, done by him for the latter, during the term of the apprenticeship; although the work was done upon the express promise of the master to pay for it. Bailey v. King. 113 ARBITRAMENT. 1. Where it appears, by the record of the court below, that a case was referred, under the act of 1705, to three persons, and that on a subsequent day, one of them having declined to serve, another person was appointed in his place, it will be presumed in the absence of contradiction by the record, that the substitution was made with the consent of both parties. Breyond the said sum of $300 ; and if the receipts should IK; less than $300, B. was to hold the mortgage as security for the deficiency ; and if the same should be paid by a cer- tain time (one week thereafter), the mortgage was to be considered as absolutely assigned to B., his executors, administrators, &c. B. assigned the mortgage to C., who brouglit suit upon it, and sold the mortgaged premises at she-rill's sale, the proceeds of which were brought into Court for distribu- tion. Upon an issue directed by the Court, it was ascertained that the receipts of the theatre on the night mentioned in the assign- ment, were $155. Held, that the clause respecting the absolute as- signment of the mortgage, was to be considered in the nature of a penalty, against which equity would relieve after the appointed day ; and that B. was entitled to receive, out of the money in Court, only the difference between the actual receipts of the theatre and the sum of $300. Solomon v. Wil- son 241 And see JUDGMENT, 1. NAL Co. UNION CA- NON COMPOS MENTIS. See LUNATIC. NORTHERN LIBERTIES. See PHILADELPHIA, 2. NOTICE. See SHERIFF'S SALE, 2. UNION CANAL Co. NUISANCE. See PRESUMPTION. OLD AGE. See LUNATIC. ORPHANS' COURT. 1. The Orphans' Court has not ju- risdiction of an adversary claim against the estate of a decedent, where the estate is solvent ; al- though the alleged creditors are children of the decedent. Metis's Appeal. 7 2. Lnder the provisions of the act of the 29th of March, 1832, the Orphans' Court has power to com- pel a settlement of accounts by a testamentary trustee. Wimmer^s Appeal. 96 3. Where a testamentary trustee had, upon his application to the Court of Common Pleas, under the INDEX. 549 act of the 14th of April, 1828, been discharged from the trust, and a new trustee had been ap- pointed on the application of the cestui que trust, it was held, that these proceedings were conclusive, and that the Orphans' Court could not afterwards compel the old trustee to settle an account in that Court. Ib. PARTITION. See ASSTJMPSIT. FEME COVERT. LIMITATION. PLEADING, 4. PARTNERSHIP. 1. In an action against A. B. and C. as partners, to recover the price of goods sold to A., the others being dormant partners, the de- fendants gave in evidence a release executed by the plaintiff to A. of all demands, &c. It appeared that A. had executed an assign- ment to B. of all his estate, for the payment of creditors, among whom B. and C. were preferred to a large amount, and that the release was executed in conse- quence of a stipulation in the as- signment : Held, that the conceal- ment of the fact of the partner- ship at the time of the execution of the release, was a fraud upon the plaintiff, which avoided the release. Carter v. Council. 392 2. The liability of a dormant part- ner to creditors may be avoided by proof of fraud in the formation of the partnership, if no part of the funds have been received by such dormant partner. Mason v. Connell. 381 3. It seems that a partnership formed by articles for a definite period, may be dissolved by either part- ner before the termination of the period. Ib. 4. One partner cannot, without the consent of the other, introduce a stranger into the firm, nor can he, without such consent, make the other partner a member of another firm ; but such consent may be implied from the acquiescence and acts of the parties ; and if such other partner is made acquainted with the facts, he ought to dissent from the arrangement ; otherwise he will be bound by it. Ib. 5. A., B., C. and D., copartners un- der the firm of A. & Co., gave their promissory note to the plain- tiffs. Afterwards the partnership was dissolved by the retirement of A., the business being continued by the others, under the firm of B. & Co. ; and a bond of indem- nity was' given by them to A. against the debts of the old firm. The firm of B. & Co. failed, and executed an assignment of their effects in trust for the payment of their creditors ; and a release of all demands was executed by the creditors, among whom were the plaintiffs, who received a dividend from the assignees, on the note of A. & Co. Held, that by these acts of the plaintiffs, A. was dis- charged from his liabilty to them. Bank of Wilmington v. Almond. 169 And see ARBITRAMENT, 3, 4. EVI- DENCE, 5. PATENT. See LAND-OFFICE. PENAL LAWS. 1. The act of 23d April, 1829, en- titled, "A further Supplement to an act entitled, ' An Act to reform the penal laws of the Common- wealth, ' " does riot repeal the llth section of the act of the 25th March, 1824, entitled, "An Act to recharter certain banks," which makes the forgery of a check on i a bank, felony. 'Drew v. The Com- monwealth. 279 2. A sentence under the act of 23d of April, 1829, to "separate or solitary confinement at labor." is good. Ib. 3. Where an indictment is good, and there is no error in the trial, but the sentence is defective, this Court will not send back the pri- soner for a new trial, but will sen- tence him de novo. Ib. 4. Where a person, convicted of passing counterfeit bank notes, was sentenced in the year 1828, to imprisonment at hard labor for a certain number of years in INDEX. the jail and penitentiary for the city and county of Philadelphia, and in pursuance of that sentence, was confined in the Walnut-afreet Prison, in the City of Philadelphia ; and upon the Rale of that building, was removed with other prisoners to the Arch-street Prison in the same city, and there kept without being put at hard labor, it was held, that he was not 'entitled to be discharged on habeas corpus. Pember's case. 439 5. A person convicted in the City and County of Philadelphia, and sentenced in 1830, to imprison- ment in the jail and penitentiary in that City and County, for a term of two years or more, ought, upon the sale of that prison, to have been removed to the Eastern Penitentiary, and not to the Moy- anicnsing prison ; but this Court will not for that cause discharge the prisoner on habeas corpus. Redd ill' s case. 445 6. It is not sufficient reason for al- lowing a writ of error, after conviction upon an indictment for murder by poison, that the indictment did not aver that the prisoner knew the substance em- ployed to be a deadly poison ; nor that the indictment did not aver that the poison was given to the dece ased by the prisoner or any one else. Commonwealth v. Earle. 525 7. On an indictment for murder, perju'trated by. me-ans of poison, a verdict finding the prisoner "Guilty in manner and form as stated in the indictment," is a convie^tion of murder in the first degree, and sufficient to authorize the judgment of death. Ib. 8. When-, after a conviction upon an indictment for an assault uj)on an inspector in the execution of his duty, a motion for a new trial was made ; and pending that motion an act of Assembly was passed, which repealed the par- ticular provision of the law under which the inspector acted, the Court arrested the judgment. Commonwealth v. King. 400 PENALTY. See MORTOAOE. PENITENTIARIES. See PENAL LAWS, 2, 4, 5. PHILADELPHIA, (City and County.) 1. The North-eastern square of ground in the city of Philadel- phia, now called "The Franklin Square," was dedicated to public use by William Penn at the foun- dation of the city ; so that neither he nor any person succeeding to his title, as proprietary, could afterwards grant the exclusive use of any part of the same to any person or corporation. A grant therefore, of a part of the Square in 1741, to a religious Corporation, for the purpose of a burying ground, was held to be void. Commonwealth v. Alburger. 469 2. The public wharf or landing place, called "the Hay-scales Landing" in the Northern Liber- ties, of the city of Philadelphia, and the public wharf or land ; ng place on the south of and adjoin- ing Callowhill street, in the same district, were, by the act of the 16th of March, 1819, vested in the board of commissioners of the incorporated district of the North- ern Liberties, in tmst for the use of the public generally ; and neither the district of Spring Garden, nor the township of Penn. nor the un- incorporated part of tlie Northern Liberties, has any right to any part of the value or income of those wharves or landing places or either of them. Spring Gar- den v. Nort/iern Liberties. 25 And see CORPORATION, 1. EVI- DENCE, 8, 9. LAND OFFICE, 1. PENAL LAWS, 4, 5. PLEADING. 1. In trespass against a sheriff and others for taking the plaintiffs gocxls, the defendants may give in evidence under the general issue that the goods were the property of A., at the time of the alleged trespass, and that they (the de- fendants,) took them under a judgment, and execution against A. ATBride v. Duncan. 269 INDEX. 551 2. Where such matter is pleaded specially, the court will strike off the special pleas, although they allege that the plaintiff was in possession of the goods by a bail- ment from A. for safe keeping, or by a fraudulent conveyance from him. Ib. 3. Qucere, whether an averment of a judgment for $6000, is supported by a record showing a judgment entered by the prothonotary, in pursuance of the Act of 1806, by virtue of a warrant of attorney accompanying a bond in the penal sum of $12,000, conditioned for the payment of $6000 with inter- est? Ib. 4. Where there was a special count in an action of assumpsit, which alleged, that the plaintiff, defend- ant and others, being tenants in common of land, appointed certain persons to make partition and ap- praisement, and that the persons so appointed did make partition and appraisement ; in consequence of which the defendant became liable to pay the plaintiff a certain sum for owelty, &c. ; and there was also a count in indebitatus as- sumpsit; and a third count was on an insimul computassent ; and the evidence offered was of a par- tition made by the tenants in com- mon among themselves, and of a valuation only, by the appraisers ; it was held, that although this evidence was variant from the special count, yet as the plaintiff was entitled to recover on the second count, the variance was not cause of demurrer. Walter v. Walter. 292 And see ACTION, 2. AMENDMENTS. EVIDENCE, 4. FEME COVERT. POSSESSION. See SHERIFF'S SALE, 2. PRACTICE. 1. Under the 4th section of the 18th rule of this Court, judgment can- not be entered on a verdict render- ed at Nisi Prius, within the first four days of the term, nor during the pendency of a motion for a new trial, unless the Court shall have ordered judgment to be en- tered for the plaintiff to stand as security. Britton v. Stanley. 267 2. Affidavits to hold to bail made by the plaintiff (residing in New York,) and his clerk in Philadel- phia, which set forth that the de- fendant was indebted to the plain- tiff in a certain sum, "a part of which" was for money lent and advanced by the plaintiff to the defendant, and "the rest of the principal sum" was due "for the balance which the defendant owes the plaintiff on settlement, in transactions in which the plain- tiff, by the defendant's request, and as his agent, made purchases and sales for the defendant, but in the plaintiff's name, by which he stands indebted to third per- sons, and the defendant is indebted to him in the said sum ; the pre- cise amount and extent of which balance cannot be stated now, be- cause the defendant suddenly left New York, without coming to any settlement, &c.," and that the de- fendant, on being required to pay, did not deny the debt or the amount : Held to be sufficient. Camman v. Hind. 320 And see ARBITRAMENT, 1, 2. COSTS. ERROR, 2, 4. EXECUTION. PENAL LAWS, 3. SET OFF. PRESUMPTION. 1. A grant will not be presumed of a part of a public square or street, from the lapse of time ; so as to bar an indictment for a nuisance. Commonwealth v. Alburger. 469 And see RENT, 4, 5. PRINCIPAL and AGENT. See EVIDENCE, 7. PROMISSORY NOTE. See ASSIGNMENT, 2, 3. PURCHASER. See SHERIFF'S SALE, 2. UNION CA- NAL Co. RECOVERY, (COMMON.) 1. A. tenant in tail, by indenture of bargain and sale, dated the 23d 552 INDEX. of November, 1797, and acknow- ledged on the 24th of the name month, in consideraiion of $2218, conveyed the estate lo B. and C. his wife, their heirs and assigns, with a covenant for further assu- rance. By another deed of bar- gain and sale, dated the 24th ot November, 1797, and acknow- ledged on the same day, A. in consideration of five shillings, and for the purpose of barring the es- tate tail, &c., conveyed the same estate to B. and his heirs, to the intent and purpose that B. should become tenant of the freehold, and be seized thereof, until a com- mon recovery, with single vouch- er, should be had, &c. and it was covenanted that A. should, before k the end of the next term, penult and sufler B. to sue forth a writ of entry, &c. against him (A.) in the Court of Common Pleas, &c., so that judgment might be thereupon had against him (A.), &c ; and the uses of the said recovery were declared to be, that B. and his heirs should stand seized of the premises, to the us^e of the said B., his heirs and assigns, &c. On the same 24th of November, A., by letter of attorney, reciting that he w as about to proceed on a voyage by sea, appointed two persons his attorneys, to appear for him in the said recovery, declaring the same and the uses thereof as in the last mentioned deed. A writ of entry, *iir ditseuin, &c., tested the 9th of December, 1797, isssued at the suit of B., demandant, against A., tenant, returnable at the March term following of the Court of Common Pleas ; at which term a common recovery, with single voucher, was suffered ; and a writ of ttirin, tested the 9th of March, 1798, issued accordingly. On the 19th of December, 1797, B., with C. his wife, in considera- tion of $2218, conveyed the pre- mises to D. in fee. In an eject- ment (instituted in 1829) by the heir in tail of A., against a pur- chaser under D., it was held, that the second deed was to be consid- ered a nullity ; that the first deed was to be taken as declaring the uses of the recovery ; and that the recovery was well suffered, and operated to vest the estate in B. and his wife, to the use of their vendee. Sharp v. Thompson. 139 REFERENCE. See ARBITRAMENT. RELEASE. See ASSIGNMENT. PARTNERSHIP, 1, 5. RENT, 2, 3, 4. RENT. 1. A ground-rent in Pennsylvania, i. e. a rent reserved to himself and his heirs by the grantor of lands in fee, is a rent-service, and not a rent-charge. Ingersoll v. Ser- geant. 337 2. A release of part of the land out of which such ground rent issues, from the rent, does not extinguish the whole rent, but merely dis- charges the part released, and leaves the remaining part of the land subject to its due proportion of the rent. Ib. 8. A. being seised of a lot of ground in the city of Philadelphia, which was subject to a redeemable ground rent of $351 per annum, oil the 9th of October, 1818, con- veyed the said lot to B. in fee, free and discharged from the rent ; and covenanted in the con- veyance to extinguish the said rent, within the time limited in the original deed, or within any extended time for extinguishing the same, and in the meantime to keep B. indemnified, &c. On the 18th of October, the holder of the ground-rent conveyed the same to C., who on the 6th of February, 1819, agreed, by endorsement on the deed, to extend the time of re- demption for 10 years. On the 30th of April, 1819, B. conveyed to D. in fee, a part of the lot con- veyed to him by A., reciting that it was part of a large lot of ground, which A. by indenture bearing date, &c. granted and conveyed to him in fee, "clear of all liens and incumbrances whatsoever." On the 1st of May, 1819, C. by deed endorsed on the conveyance to D., INDEX. 553 in consideration of $1, released the lot conveyed to him from the payment of the said ground-rent, with a proviso, that nothing there- in contained should be taken to impair his right to recover the ground-rent from the remaining part of the lot. On the 3d of May, 1819, C. by deed reciting the conveyance of the ground-rent to him, the agreement for extend- ing the time of redemption, and the release to D., conveyed the said ground-rent to the defendant in fee. In point of fact, (though nothing appeared on the face of the papers to show it, ) the ground- rent was originally purchased by C. with the money of A., and was held by him in trust for A. ; but the defendant had no notice of the trust ; Held, 1st. That the ground- rent was not extinguished by the conveyance to C. in trust for A. ; nor by the extension of .the time for the redemption of it. 3d. That B. was not estopped by the recital in his deed to D., so as to subject his remaining part of the lot to the whole ground-rent. 3d. That the entire ground-rent was not extinguished by the release to D. ; but only so much was extin- guished as was equal to the value of the lot conveyed to D. ; com- pared with the value of the whole lot. Ib. 4. Mere lapse of time without de- mand of payment, is not sufficient to raise a presumption that a ground-rent created by a valid deed, has been released, or other- wise extinguished. St. Mary's Church v. Mies. 229 5. The lapse of twenty years with- out demand of payment, is evi- dence from which a jury may presume payment of the arrears of the ground-rent ; but such pre- sumption may be repelled by cir- cumstances. Ib. 6. A testator devised a small annual ground-rent to a servant for life : His executors not being aware of the testator owning such a ground- rent, or not finding the person by whom it was payable, paid the amount to the devisee from time to time, as an annuity ; Held, that these payments were not to be considered as a satisfaction of the ground-rent pro tanto ; but that the devisee was entitled to recover the arrears. Ib. 1. The owner of a ground-rent, in fee, is not liable for any part of the taxes assessed upon the land, out of which the rent issues. Philadelphia Library Company v. Ingham. 72 RIGHT OF WAY. See WAY. SATISFACTION. See JUDGMENT. RENT, 6. SAVINGS INSTITUTION. See CORPORATION, 1. SEA-WORTHINESS. See INSURANCE. SET-OFF. 1. A judgment for costs obtained against an administrator, plaintiff in another Court, and assigned by the defendant there to A., cannot be set off against a judgment for damages obtained by such admin- istrator against A. in this Court. M i Williams v. Hopkins. 275 SHERIFF'S SALE. 1. A testator, by his will, proved in 1814, devised all his estate to his wife for life, and after her decease, to his five children. In 1825, his widow obtained letters of admin- istration, cum testamento annexo, and, in her character of adminis- tratrix, confessed a judgment to the commissioners of Spring Gar- den, for a certain sum, which, by the statement in the case, ap- peared to be for paving done, in 1820, in front of a certain lot, which had belonged to the testa- tor. By virtue of an execution on this judgment, the lot was sold at sheriff's sale : Held, that the pur- chaser acquired no more than the life estate of the widow. Loud v. Bull. 238 2. Where the owner of a lot of land 554 INDEX. containing about twenty acres, conveyed one acre of meadow land to A., who neglected to record his deed, but took possession and planted it with willows for the purposes of his trade of basket- making, which willows he cut every year at the proper season, and he continued in this possession about 14 years, when the land of his vendor was sold at a sheriffs sale ; it was held that the posses- sion of A. was sufficiently distinct and unequivocal to give notice to the purchaser at the sheriffs sale. Xridtr v. Lafferty. 303 And see ARBITRAMENT, 5. EVI- DENCE, 2. SPRING GARDEN. See PHILADELPHIA, 2. STATUTES, (British.) 1. The statute of Quia Emptores, (18 Edw. 1, st. 1, c. 1.) never was in force in Pennsylvania. Inger- toll v. Sergeant. 337 STOCKHOLDERS. See CORPORATION, 1. TAXES. See RENT, 7. TENANT IN TAIL. See RECOVERY. TESTIMONY, PERPETUATION OF. See COSTS, 1. TRESPASS. 1. Trespass will lie by the owner of a fishery, for a direct interruption to the exercise of his right. Hart v. Hill. 124 2. In trespass for breaking the plain- tiff's close, and carrying away his goods, evidence of the value of the goods is admissible on the part of the plaintiff*, although he may have brought replevin for the same goods, if the defendant has plead- ed property in that action, and it IB still depending ; and a fortiori, if it has been discontinued, though such discontinuance was after the commencement of the trial of the action of trespass. Krider v. Lafferty. 303 And see PLEADING, 1, 2. TROVER. See AMENDMENTS, 4. TRUSTEE. 1. A testator having two daughters, A. and B. and no other children ; and having certain shares of bank stock, bequeathed one-half of the number of shares to his daughter A. who was at that time unmar- ried ; but said nothing respecting the remaining shares. He gave several legacies of other stocks and effects to A. and B., and ap- pointed his nephew C., his son-in- law D. (husband of B.) and his two daughters A and B. to be ex- ecutors. About a month after the probate of the will, A. by an in- strument (not actually sealed) re- citing that the omitted shares were believed to have been intended by her father for her sister B., grant- ed, assigned, &c. the said shares to B. for her sole and absolute property, and requested the ex- ecutors of her father, to transfer them to her. The shares were accordingly transferred by the ex- ecutors to B. ; and in the settle- ment of their accounts, they claim- ed credit for such transfer : Held, on exception to such credit, that in the absence of evidence of mis- take or direct fraud or imposition, there was nothing in the relation in which C., the executor, or his wife B. stood towards A., to re- quire the Court to rescind the as- signment and transfer. Delama- Ur's Ettate. 362 And see ASSIGNMENT, 1. COURT, 2, 3. ORPHANS' UNION CANAL COMPANY. 1. In 1792, an act of the legislature was passed, to incorporate a com- pany for opening a canal between the rivers Delaware and Schuyl- kill, which authorized the corpo- ration to purchase, take, and hold all such real estate as should be INDEX. 555 necessary for them in the prose- cution of their works : in pursu- ance of which they proceeded to lay out the canal, part of which passed through the land of A., who was stockholder in the Com- pany. In 1793 a parol agree- ment was made between the Com- pany and A. for the price of that part of his land taken for the canal ; which agreement was re- cognized by a bill or memorandum in writing made by A. in 1798. About the year 1793, the canal was actually dug through the land of A. ; but the communica- tion between the two rivers was never completed ; and after the year 1795, nothing further was done in opening the communica- tion by this Company ; but the strip remained within the fences of A. ; and with the remainder of his land, was at one time let to a tenant for years, who used part of it, with the other ground, for the purpose of raising grain. In 1811, an act was passed, authorizing a junction of the Delaware and Schuylkill Canal Co. with the Schuylkill and Susquehanna Navi- gation Co. under the name of the Union Canal Co., by virtue of which all the estates, rights and privileges of the two companies were vested in the new corpora- tion. In 1819, another act of the legislature required the Union Canal Co. to confine their opera- tions to the completion of the com- munication between the Schuyl- kill and the Susquehanna. In 1821 A. accepted certificates for 10 shares of stock of the Union Canal Co. in lieu of his stock in the old Delaware and Schuylkill Canal Co. In June 1833, part of the land of A., which being in the immediate vicinity of Philadel- phia, had, in the mean time, greatly appreciated in value, was sold for building lots to B. and C. who gave mortgages for the purchase- money. In an ejectment instituted to Dec. term, 1833, by the Union Canal Co. against the heirs of A., and the purchasers under them, it was held, (1st.) That the plaintiffs acquired a right to the soil, occu- pied or taken for the canal, and not merely an easement therein. VOL.I. 37 (3d.) That the possession of A. was not to be considered as ad- verse to the plaintiff's, so as to give effect to the statute of limi- tations. (3d.) That the abandon- ment of the canal, and the disso- lution of the old company in 1811, did not raise any equity, which would avail the defendants as a defence, or authorize them to treat the contract as rescinded. (4th.) That supposing B. and C. to be purchasers without notice, they were not entitled to protection further than as they had actually paid the purchase-money ; the mortgages not being considered as payment. Union Canal Co. v. Young. 410 WARRANT AND SURVEY. See LAND OFFICE. WAY, (RIGHT OF.) 1 . The owner of a large lot of ground situate on the east side of Fourth street, in the City of Philadelphia, granted to A. in fee a part of the same, being a lot 25 feet in front, and in depth about 100 feet ; bounded east, by a brick stable, standing in the line of the lot ; "together with the full and free privilege and authority of ingress, egress, and regress, by, through, and upon a 4 feet 6 inches alley, extending in and about 45 feet from 4th street, to be forever left open between the lot hereby granted, and the house now occu- pied by B.," reserving a perpetual ground rent, with a covenant by A., to pay the same, and to build within a limited time a good three story brick house upon the lot thus granted to him. A. erected a house with back buildings, ex- tending to the eastern boundary of the lot. Several years after- wards, C. purchased the whole of the large lot with the buildings on it, including that occupied by B., but excepting the house and lot belonging to A. The deed to C. described. A.'s lot as being one of the boundaries, and contained the INDEX. following clause, "Subject to the full ami free privilege and author- ity of ingress, egress ami regress, granted by, &c. (reciting the deed to A., by, through, and upon a 4 feet C inches alley along side of the north line of (A.'s) lot, and extending in and about 45 feet from Fourth street, to be forever left open between (A.'s) said lot and the house included in this grant, formerly occupied by B." &c. There was an alley leading into Market street, and another passage into Fourth street, com- municating with the stable yard. lltld, that C. had no right to con- t'nue the 4 feet 6 inches alley to the stable wall, and thence pass from the stable into Fourth street, along the alley on the north side of A.'s house. Kirkham v. Sharp. 323 WILL. 1. A testator devised as follows: "I give to my son, T. N., all my house and lot situate in Spruce Street, Philadelphia, as soon as he shall arrive at the age of twenty- one years, him and his lawful heirs forever ; and in case of his death, without lawful issue, then said house and lot to be sold to the best advantage, and the amount thereof equally divided among my .surviving children." Held, that T. N. took an estate tail. Sharp v. Thompson. 139 2. A testator In-gan his will thus, "I, A. C. C. frel myself in declin- ing state of body, and knowing the certainty of death, and not know- ing the time thereof;" after cer- tain bequests he gave to A. "or to her heirs or assigns one three Ktory brick house in Arch street, No. 03. Further I winh to gice to TV". C. one other three story /."/.,, in Arch street, No. 05 " the will concluding thus, and not l>eing signed by the testator : Held, that W. C. took only a life estate in the house devised to him. Burr v. Sim. 252 3. A testator having given the resi- due and remainder of his estate, real and personal, to J. B. "his heirs and assigns forever," charged with the payim nt of debts. I'mnral expenses, and certain small lega- cies, added the following proviso : " Provided, that in case the said J. B. doth not return to Philadel- phia, from his present intended voyage to South America, or in case he doth not return to Phila- delphia, within a reasonable time after my decease, but departs this life without lawful issue, then, and in such case or cases, all my said messuage, lot, and residuary es- tate, real and personal, inteinlrd for the said J. B. shall go to, and I do hereby give, devise, and be- queath the same to A. B. &c., their heirs and assigns," subject to the same charges : Held, that the proviso was to be taken to refer to a dying without issue on the contemplated voyage ; and J. B. having returned from the voyage in the life time of the testator, he took a fee simple in the real estate. M ' Carthy v. Dawson. 4 4. A testator after several legacies of bank stock and other stock and money, concluded his will as fol- lows: "The remainder of my worldly substance, consisting of furniture, bedding, carpets, china, kitchen furniture, looking glasses, and crockery, &c. &c. I give to my two daughters to be dividi d between them, part of which they are at liberty to sell, if they shall not need them. These with all money of mine that may remain in bank at the time of my death, with all claims or demands of whatever nature, I give to my two daughters, hoping that they may live to enjoy much contentment and happiness." The testator had several shares of bank stock and other stock, not specifically be- queathed: Held, that they did not pass under the above bequest. Delamater's Estate. 302 5. A will executed in 1748, contained the following clause : "I give and devise unto my cousin, J. T., son of my brother T. T., my messuage or tenement and tract of land where I dwell, bounded by the several courses along the line run to Darby creek ; thence down the INDEX. 557 said creek to the river ; thence by the river to the place of begin- ning to him and his heirs lawfully descending from his body, and in default of such heirs, to my right heirs forever." In a subse- quent clause of the same will, was the following devise ; "I give and devise to D. S. my fishing place, to him and his heirs forever; and likewise it is my will, that he shall have the help and use of my ne- groes, M. and H., one month in each year, in fishing time, till they respectively attain to thirty years of age." Held, that D. S. did not acquire by this clause, any right hi the soil on the bank of the river, but merely an easement, or so much use of the shore as was necessary for the purpose of the fishery. Hart v. Hill. 124 6. A testator gave to his wife all his estate real and personal, that should remain after payment of his debts, &c., adding, "but if it shall be the opinion of my execu- tors, that my said estate is more than sufficient for the comfortable support of my said beloved wife during her life, then I direct them to pay to L. the sum of 100 when the settlement of my affairs shall admit of its being done with- out inconvenience to my aforesaid wife, &c. And I further direct tliem to pay or transmit to my nephew R. H. L., one-half of the remainder of the said property, if any there should be, that my said wife may die possessed of; and the other half I leave to her disposal." The widow of the testator after- wards made her will, which, be- sides various legacies, contained the follow : rg : "Item I devise and direct tha one-half part of all my estate (alter payment of my just debts and funeral expenses,) be paid to the heirs or legal re- presentatives of R. H. L., agree- ably to the will and intention of my late husband, excepting there- out my household furniture, which I dispose of as hereinafter men- tioned. Held, that R. H. L. was entitled to one-half part of the re- mainder of the testator's estate, and not to the half part of the estate of the widow. Moore v. Hampton. 433 7. One having large real and per- sonal estates, and whose nearest relations were a brother and the children of a brother and sister, made his will, dated in February, 1830, in which were the following provisions; (1.) He devised a house and lot of ground in France to his brother and one of his nieces, during the life of his bro- ther, and thereafter one moiety to the said niece and the other moiety to six children of his said brother. (2.) He gave legacies of different sums to his brother and nephews and nieces ; some of the legacies being to trustees for the separate use of married nieces. (3.) He then gave the residue of his estate to "the Mayor, Alder- men and citizens of Philadelphia, ' ' in trust for the establishment of a college for orphans, and other pub- lic and charitable purposes. In December, 1830, he made a cod- icil reciting the will, and that he had, since the execution thereof, purchased certain real estate "all which as well as any real estate that I may hereafter purchase," he added, "it is my wish and in- tention to pass by the said last will : now I do hereby republish the foregoing* will and testament, dated, &c. and do confirm the same in all particulars." In June, 1831, he made another codicil, reciting, that since the execution of the will, he had purchased other real estate "all which as well as any real estate that I may hereafter purchase, it is my intention to pass by said will:" and then re- citing that he had purchased cer- tain land near Philadelphia, he declared it to be his intention that the orphan house, &c. should be erected upon this land, instead of the spot directed in his will, &c. Between the date of this last codi- cil and his death, he purchased certain other real estate. The legacies to the next of kin were paid by the executors about seven months after the death of the tes- tator. Ejectments were instituted by the heirs against the City of Philadelphia, to recover the after- acquired real estate, which were decided in favor of the plaintiffs, and possession was delivered ac- cordingly. In ejectment brought 558 INDEX. by the city, to recover back the KIM ir real estate, it was held that it was not a case in which tin* heirs were bound to elect between the after-acquired real estate and the legacies, and therefore that the city was not entitled to re- recover. City of Philadelphia v. Datit, 490 8. A testator gave one-third of his estate, real and personal, to his wife, one other third to his child- ren, "who may be living at the time of my death ; " directing the interest to be paid to their guar- dians ; and as to the remaining one-third, he directed that out of the principal of the one-third of his personal estate, which might remain, after "the foregoing de- vises were satisfied, "his executors should pay certain pecuniary le- gacies, and if there should not be sufficient money from this source, that his real estate should be sold for the purpose : and as to certain annuities which he gave, he di- rected that they should be "paid out of the rent of the third part of the real estate, thereby devised, or out of the interest of the third part of the personal estate, there- by devised, which may remain after the payment! of pecuniary legacies ; or out of the interest of the proceeds of sale of the real estate." In another part of tile will, the testator appointed a guardian for his son A., and a guardian for his daughter B. At the date of his will, and at the time of his death, he had two children, A. and B., and his wife was pregnant with a third child, who was bom after his death. JMd, 1. That the child in rentre mfrt, was not to l>e considered as licing, within the meaning of the will ; and, consequently, that under the act of 1794, the will was revoked, so far as respected the share or proportion of such child, of the estate. 2. That he took one-third of two-thirds there- of, which was to IK- deducted, in the first place, from the whole amount ; that the remainder was to IH divided into three parts ; of which the widow was to have one- third ; the two children. A. and B., one-third between them, and the collateral legatees, the remain- ing third. 3. That the collateral legacies were to abate in equal proportions. M'Kniyht v. J!< > e deducted from his wife's share ; and conse- quently was not a lien upon the land. Hogeland's Appeal, 87 10. A conveyance in tee-simple of a lot of ground is a revocation of a will previously made by the gran- tor, so far as respects such lot ; ' although upon such conveyance the grantor reserves to himself a ground-rent in ' fee ; and such ground-rent does not pass to the devisee of the lot. Skerrett v. B>ird, 246 11. In ejectment against one claim- ing under a conveyance made by the ancestor of the plaintiffs, which they sought to set aside, on the ground of inadequacy of con- sideration, and imbecility of the grantor ; the parties standing also in the relation of mortgagor and mortgagee ; it was held, that a INDEX. 559 will made by the grantor, three years before the date of the deed, when the parties stood in the same relation; in which he de- vised the same property to the grantee in the deed, was admis- sible in evidence, to show the in- tentions and dispositions of the grantor towards the grantee. Gas- per v. Donaldson. 227 And see CONVERSION. WITNESS. See COSTS. ERROR, 4. EVIDENCE, 2, 5, 6, 7. END OF VOL. I. UNIVER. LOS ANGELES