text:
    SOXMAN against SOXMAN.
    In a joint action against two, an award of referees under the act of 1705, that a oer-, taiij sum is due to tl;e plaintiff by png of tl;e defendants, and another sum due by the other hefendant is erroneous.' And a general judgment by the court, upon such award for thp aggregate amount of both sums, is erroneous.
    Error to Westmoreland county.
    This action, in which William Cochran, executor of Chris-, ficen Soxmdn, was plaintiff, and Mcithias Soxman and Cris ticen

      Soxman, jr. were defendants, originated before a Justice of the Peace from .whose judgment an appeal was entered to the Common Pleas. By consent of parties, all matters in variance between them were referred to three named referees, upon whose award or that of a majority of them, it was agreed judgment should be rendered. On the day of meeting one of the referees did not attend. On motion of Mr. Foster the plaintiff’s attorney,'.to the court, another was súbstituted in his place. The referees then met and heard the parties and made an award, which .was a stated account between the plaintiff and each of the defendants, shewing the amount due by Matthias of thirty-seven dollars and fifty-seven cents and a balance due by Christian Soxman, jr.- of forty dollars and sixty three cents. To this award the following exceptions were filed: " .
    1. The award is void for want of certainty.
    2. The arbitrators have not awarded that théy find any sum either for plaintiff or defendants, at the time of the award.

      3. The arbitrators have not found any sum due by. the defendants to the plaintiff.
    4. The action against the defendants was joint, the finding of the arbitrators is contrary to the submission, being against the defendants severally.
    5. There was no substitution of Israel Cray by the other two arbitrator's-who were originally chosen, in the room of one of the arbitrators who did not attend.
    6. There is no such finding by the arbitrators as upon which judgment can be entered.
    The court over-ruled the exceptions and entered a judgment on the award for the' plaintiff for seventy-eight dollars and twenty cents.

      Kuhns and Alexander for plaintiff in error.
    In this case the agreement wras joint, the action was joint, the declaration was joint, upon a joint liability, and the award and judgv ment were several, which is erroneous. 21 'Fin. Ah. 422, 431, title Trial. 2 Vent. 151. Boult in v. Ford, Sid. 76.
    A. general judgment cannot be entered upon a special award, Sutton v. Horn, 7 Serg. S¡~ R. 2-28,

      Foster fop defendant in error.
   The opinion of the court was delivered by

Ross, J.

In .this case as in many others, which come before this court, the law is clear and well settled — so clear, indeed, that the case does not merit a serious examination. It is an appeal from a justice of the peace, to the court of Common Pleas; and which W3-S referred to arbitrators by consent of the parties, on the 24th of February, 1831. The arbitrators on the 3d of March following, reported that they found a balance of thirty-seven dollars and fifty-' seven cents against Mathias Soxman, and a balance of forty dollars and sixty-three cents against Christian Soxman; for the aggregate amount of which sums, the court gave judgment. In their award they state separate accounts against each defendant, by which the result is shown, and the manner in which it is produced — though the nature of the demand, or the consideration upon which it was founded does not very clearly appear from . the statement of either of the accounts. The first three exceptions cannot be sustained. The others are fatal; and in the decision of the court below upon them consists the error, which must now reverse the judgment.

The fourth and sixth exceptions may be considered together, being in effect the same. The question presented by them is, whether an award or verdict in assumpsit, or in an action on a parol contract against two or more, can be made for separate and distinct sums against each; and a judgment be entered thereon against all the defendants for the aggregate amount thus found?

When tire objection arising from mis-joinder or non-joinder of parties does not go in denial of the declaration, advantage can be taken of it only by a plea in abatement. 5 East. 307. 1 Saund. 291 b. n. 4. 1 Bos. & Pul. 67. But where the objection arising from the nonjoinder or misjoinder of the necessary parties goes in denial of the declaration, or of a material averment, advantage may be taken of it as well under the general issue as in abatement. 1 Stra. 220. 1 Bac. Ab. 293, title Plead. 293. Bul. 172. 2 T. Rep. 282 Thus if two persons be sued on a contract made by one only, advantage may be taken of this under the general issue. The objection arising from the mis-joinder denies the declaration and consequently supports the general issue. 2 N. Rep. 454. 2 Day. 272.

A mis-joinder of several causes of action is always fatal even after verdict. With respect to the joinder of actions, the rule is, that when the same plea may be pleaded, and the same judgment given, different counts may be joined; provided the parties arc the same, and are sued in the same capacity. The allegation and proof must agree. Therefore where a contract is laid in the declaration to have been made between A and B, a written instrument against C and B is not admissible. 2 Yeates, 95. 6 Bin. 121. Bul. Nisi Prius, 157. In this'case there is no declaration, no plea, and no issue. We are not left, however, entirely in the dark as to the nature and cause of action. It sufficiently appears from the statement of the accounts returned by the • arbitrators, that the action was founded on a parol contract express, or implied, and that it was for separate and distinct demands against each defend-ant and therefore a joint action Would not lie. Proof charging th<3 defendants separately would not sustain the allegation, that they were jointly liable. A contract being an entire thing, the whole cause of action stated must be proved as laid, exe'ept such parts as may be rejected as surplusage. Archbold’s Plead. 373-4. If an action is brought on a contract against two- persons, When the? contract.was really made with one only, the plaintiff cannot obtain judgment against either. If in such case the jury find a verdict for one and against the other, on the ground, that the former did not contract, the plaintiff will not be entitled to judgment against the other. For the verdict itself contradicts the declaration. Carth. 361. 3 East. 162. 5 Esp. 47. 3 Cowen 374. If however two or more persons be sued for a tort, the fact of the other’s not being guilty cannot be taken advantage of at all. Stra. 509, 793, Esp. 336. 3 East. 62. It has also been decided in 3 Barn. & Ald. 605, that if, in an action of assumpsit, the defendant pleads, that the promises were made by him jointly with - another, on which issue is joined, and the-jury merely find that the defendant promised, without stating whether such promise was made alone or jointly, the verdict cannot be sustained, and the judgment will be reversed on a writ of error. So also in assumpsit against four, who pleaded non assumpserunt infra sex annos, and the verdict was that one of the defendants did assume infra sex annós, and that th'c others did not, it was held, that the plaintiff could not have judgment. 2 Vent. 151, 210 a verdict cannot be for separate damages against several defendants. Same’s notes,. 171.

The same principle may bo found in many other decisions, and also recognized in the various treatises on the subject of pleading* It is equally applicable to this case and must govern us in the decision of it. The action was brought against the defendants jointly and the submission was also joint. Whereas the award finds separate sums against each defendant, and thus severs their joint liability. The judgment given-by the court upon the award thus made, was for the aggregate sum, and not for the amount due from each defendant. They probably knew, that in a case like the present there could not be two separate judgments; but in order to give effect to the award, have entered judgment against them for the whole amount, thereby creating a joint liability. If the judgment thus entered be valid, cither one of the defendants might eventually be compelled to pay the amount awarded against both* It is needless to remark further upon this point, as there can be no doubt that this exception taken to the award was fatal, and that no judgment Could be enterpd A full examination of the law on this subject, may be found in 1 Saund. Rep. 417-18.

Then as respects the fifth exception. -If the reference were under the act of 1705, which seems to have been the case, from the-circumstance of the arbitrators having been appointed by the con* sent of the parties, then there was error in the substitution of Israel Gray without the consent of the parties to the submission. If, however, it were a compulsory arbitration, it is then equally clear, that the court had no power to make such substitution. Iri every view of this exception, it was an irregular and erroneous pro* cecding.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    RANKIN against WOODWORTH.
    Idle statute of limitation begins to run, so as to to an action on a Contract to &dta* píete a certain work, from the time when the work Was to have been completed,* and not from the time when the plaintiff' had received actual damage from the imperfebt execution of the work.
    A' contract to complete work li¡ a certain time, means that it shall he doiie before! that time.
    Error tb Veriangó bounty.
    This suit, in which Jared Woodiborih was plaintiff, and David Rankin Was defendant, originated on the 29 th November, 1821. It was brought Upon a contrast dated the 9th of February, 1S15> by which Rdnkin and Cochran agreed to build a saw mill for* the plaintiff, and <£to have it Completed by November next.” The defendant plead non assumpsit infra sex anrios. The plaintiff requested the court to charge the jufy* “that the statute of limita* tion did not begin to run till Woodworth sustained damage; and that he can recover at any time within six years after the defect iri the work was discovered. The court instructed the jtiry that the Statute of limitation Was not a bar in this case. This opinion Was the dnly error assigned.

      Galbreath for plaintiff in error. Stopped by the court.
    Pearson contra., Cited Salomon v. Salomon, 2 Bin. 436.
   Per Curiam.

Viewing this case in the' aspect most favorable to the plaintiff below, by taking the date of the precipe to be satisfactory evidence of the commencement of the action, and it certainly is not Conclusive', — the ¡joint is still against him. By the Contract, the work was to be finished by the ensuing month of November, which, in the popular acceptation of the wordj excludes the month. When a thing is ordered by a particular day, it is with a view of hayihg the use of it On the day. Thus, a coat is ordered by Sunday, with a view of wearing it to church. And the popular 'agrees with the philological import of the word which is explained by our great lexicographer, by the words, “near, beside, passing, in presence;” all of which denote exclusion. The action was; therefore, not brought within six years from the period limited for the execution of the Work. As to the point made, that the statute did not begirt to run before the plaintiff had received actual damage from the imperfect execution of the contract, it is sufficient to say, it ran from the instant when first he had a right of action, which, from the form of the suit here, was the period limited for the completion of the work. If, as is alleged, the defect was in the manner of the performance, the plaintiff was bound to judge of that before he took the work off their hands; and if there were a fraudulent concealment of its quality, a special action on the case, perhaps, would be the remedy for that; but it is not a matter to suspend the operation of the statute, in this action.

Judgment reversed, and a venire facias de novó awarded.


author: Ross, J.

text:
    WILSON against SPROUL.
    The legal foundatiCn of an action on the case for seduction, is the loss of service. The relation of master and servant must exist between the plaintiff and the personi seduced, at the time When the injury is Committed. If the daughter be under the age of twenty-one, she is the servant of her father, de jure,1 and his right to command her service is sufficient evidence of her being his servant. If she be above that age, there must be some evidence of the relation of master and servant.
    A prosecution and conviction for fornication and bastardy, is not a bar to a civil suit, by the master, for the seduction of the prosecutrix.
    In an action for seduction, when a relationship exists between the plaintiff and the seduced, proof of the situation of the plaintiff’s family, and their general good character, is competent to be given to the jury, for the purpose of increasing the damages.
    It is not competent for the plaintiff to give evidence of the good character of the seduced, uriless it be first attacked by the defendant.
    Error to the Common Pleas of Allegheny county.
    This was an action on the case brought by Robert Sprout against John Wilson, for debauching Polly Porter, the alleged servant of the plaintiff. She was sworn, and testified as follows:
    “That the plaintiff is her brother-in-law; she had resided at his house nine years before the child was born. That on the 27th of March, 1826, she was gotten with child by the defendant; that it Was born on the 27th of November, 1826, at which time she was twenty-eight years old. The defendant was intimate in the family of plaintiff, and lived one-fourth mile distant; that at the birth of the child, she was nursed by the plaintiff’s wife; was confined two weeks, and worked but little for four weeks. That theparents of witness are both dead — her mother many years ago, and her father in July, 1827. Witness left plaintiff’s house when the child was eleven months old. She was not in debt to the plaintiff when she left his house. He owed her four or five dollars, for money he had borrowed of her. That she hoarded at the plaintiff’s house, and paid him in weaving, and other work. That she wove for the neighbors, and sometimes recéived the money herself, and it was sometimes paid to the plaintiff towards her boarding. That she had her own bed at the house of the plaintiff. That when she was not weaving for the neighbors, she sometimes worked for herself. That sometime before she left the plaintiff’s house, she had a settlement with him.
    Plaintiff’s counsel then offered to prove, that the plaintiff and his wife and family, were persons of good character; that Polly Porter was a person of good character, and that nothing had been heard against her till this affair of the defendant. To which evidence defendant’s counsel objected; and the same was admitted by the court, and defendant’s counsel excepted to the opinion.
    Defendant’s counsel then gave in evidence the record of the'conviction of the defendant, for fornication and bastardy, and the sentence of th,e court thereupon: and it was testified by Polly Porter, that the moneys mentioned in the sentence of the court, had been all paid by the defendant, except for keeping her child the last two months.
    Defendant’s counsel then requested the court to charge the juryi 1. That if they believe the facts stated by Polly Porter, the plaintiff is not entitled to recover. 2. That defendant, having been convicted of the alleged fornication and bastardy, and having paid agreeably to the sentence of court, he is not, under all the circumstances of the ease, liable in this suit; the same having been brought to recover a second satisfaction for the same injury. The court, thereupon, charged the jury against the defendant, upon both points submitted; and that the plaintiff was entitled to recover, if the jury believed the facts stated by the witness, Polly Porter. The court further stated, that in estimating the damages,, the jury should take into their consideration, not only the injury done to the feelings of the plaintiff, but the wounded and injured feelings of those who were connected with and related to the victim of defendant’s seduction.

      TV. Forward for plaintiff inerror, cited Nich&lson v. Stryker, 10 Johns. 115. 3 Stark. Ev. 1307.

      W. W. Felterman for defendant in error, cited Wheat’s Selwin, 292. Hornketh v. Barr, 8 Serg. %• Ramie, 36. 3 Stark. 1310,
   The opinion of the court was delivered by

Ross, J.

The legal foundation of this action, and that which constitutes the plaintiff’s right to recover, is the loss of service. The relation of master and servant must exist between the plaintiff and the person seduced, at the time when the injury is committed. If the daughter be under the age of twenty-one, she is the. servant of her father, de jure; and his right to command her services will be sufficient proof of her being his servant. But if she be above the age of twenty-one, there must be some evidence of the relation of master and servant — some proof of actual service performed. The slightest acts of service have, however, been held sufficient — such as occasionally milking cows, making tea, and the like. 8 Serg. & Rawle, 36, 38. 2 Sel. N. P. Whart. Ed. 292. Saund on Plead. & Ev. 784. The loss of service being thus the gist of the action, it is not necessary that the plaintiff should be the parent of the person seduced. An aunt may maintain an action for the seduction of her niece. So, also, a person may maintain an action for the seduction of an adopted child. But in such cases, the ehild must be under age, and actually employed in the service of the plaintiff. Saund. on Pl. & Ev. 785. 2 Reed’s Black. 538, 41, and cases there cited. -In the case under consideration, the seduced was twenty-eight years of age, and was neither the daughter, niece, nor servant of the plaintiff below. She paid him for her boarding, and was in every respect.her own mistress, and disposed of her services as she saw proper. There is no evidence that she performed the slightest acts of service. She was neither the plaintiff’s servant, de jure, nor de facto; and consequently he has not brought himself within any of the legal principles requisite for him to support this action. The court, therefore, erred in charging the jury, that if they believed the testimony of Polly Porter, the plaintiff was entitled to recover. See 10 Johns. Rep. 115. 9 Johns. Rep. 387.

The court below were, however, right in their charge to the jury upon the seeond point submitted to them by the defendant’s counsel, to wit: That although the defendant had been convicted of the alleged fornieation and bastardy, and had paid agreeably to the sentence of the court,' still he might be liable in this suit. A prosecution for fornication and bastardy is no bar to an action against the same individual for the seduction of the person who may have prosecuted the case of fornication and bastardy. The prosecution is in the nature of a proceeding to compel the defendant to support the child, and relieve the public from the expense of its maintenance. The action of seduction is founded on the loss of service, and damages are given for the injury thus received, and also in some measure as a compensation for wounded feelings. It is not , second satisfaction for the same injury.

But, though a person cannot sue for debauching his child, merely in the character of a parent, (the gist of the action being the loss of service,) still, courts of justice have, in order to suppress .this vice, so pernicious in its consequences, gone very far in sustaining this action, and have permitted a great latitude in the admission of evidence. They have, for the purpose of increasing damages, admitted proof of the situation of the plaintiff’s family; the number of his daughters; their general good character; the distress of mind; the family disgrace, and other matters of aggravation. 2 Saund. on Pl. & Ev. 350, 1, 2. But where no relationship subsists between the plaintiff and seduced, such evidence could’have little or no influence; and would indeed be improperly received. For certainly tho misconduct of a mere servant girl could not aflect the character of plaintiff’s daughters, pr bring disgrace upon his family. But where the seduced is a connection of the plaintiff, such evidence would not only be very properly received, but would be of great importance in assessing damages. In this case, the plaintiff Was the brother-in-law of Polly Porter, and if he had brought himself within the principles upon which such actions are sustained, it would have been cprrectfor him to give evidence of the good character of himself and family; and glso proper fqr the jury to take into consideration, not only the injury done to the feelings of t)ie plaintiff, but also the injury done to the feelings of those persons connected with or related to the victim of the seduction. It is true, that this practice of giving damages for the injured feelings of the family, is contrary to the strict rplp of law, which requires that the plaintiff should recover secundum allegata et probata. If, however, we consider the nature pf this injury, and the effect that it produces upon domestic peace and happiness, we can have no cause to regret that courts of justice have, with such grpat liberality, recognized this practice of regarding something more, than merely the injury sustained by the loss of service. The gratifican tion of a momentary passion by the seducer, brings ruin not pnly upon the victim of his lust, but disgrace and dishonor upon her family and her friends. Scorned and unpitied by her own sex, she, who would have been the pride of her familjq and the ornament of society, becomes the shame of the one, and the outcast of the other. It is indeed impossible, in most cases, for any amount of damages to heal the wounds which the destroyer has inflicted; but still the assessing of damages beyond the loss of service, operates as a punishment to the seducer, and has a tendency to suppress this vice, for which no punishment is providpd by our criminal code.

The court, however, erred in permitting the plaintiff below to give evidence of Polly Porter’s general good conduct. Her character had not been impeached; and the rule is well settled, that witnesses on the part of the plaiqtiff cannot be examined ns to tpe •general character of the seduced for chastity, until evidence of general bad character has been adduced by the defendant. It has even been decided, that an allegation by the defendant of a particular breach of chastity, will not authorize such examination; and also, that where it appeal's from the mere cross examination of the daughter, that she has been guilty of improper conduct, the plaintiff will not be entitled to call witnesses to her character. 1 Campb. 460. 3 Campb. 519. 2 Saund. on Pl. & Ev. 785.

Enough has been said to show that the judgment must be reverted.

Judgment reversed.


author: Gibson, C. J.

text:
    M’CONNEL against HALL.
    A applied to B and purchased from him a tract of land upon which he paid one hundred dollars Knowing at the time, that B’s agent had sold the land to another. When B was informed that his agent had previously sold the land, he tendered back to A the purchase money which he had paid, but which he refused to accept. In ¡an action by A against B on the covenant, for not 'conveying, it was held, that he was entitled to recover back the sum of money which he had paid to B, but neither interest nor costs? notwithstanding the tender by B to refund, was not pleaded.
    Error to Westmoreland county.
    This was an action of covenant for not conveying a tract of land pursuant to the articles of purchase. William J. Hall was the plaintiff and John B. Connel was the defendant. After the plaintiff had given in evidence the article of agreement between him and the defendant, which contained also a receipt for the hand money, one hundred dollars: the defendant gave in evidence, that previously to the time when he sold the land to the plaintiff he had authorized John Horrell to sell it, and that he had actually sold it at the time when the plaintiff applied to purchase it; which fact was known to the plaintiff, but was not known to the defendant, who resided in the county of Butler. It was also in proof, that when the plaintiff applied to buy the land, he misrepresented its condition and value to-' the defendant. The contract on which this" suit was brought, was in August, and in the following October, and before suit brought, the defendant offered to pay back to the plaintiff the money which he had received, but which he refused to accept.
    The same offer was made on' the trial of the cause.
    The court below in answer to a point put by defendant’s counsel, instructed the jury,' that the plaintiff-wds’entitled to recover the money he had paid the defendant, with lawful interest from the time it was paid. That the defendant could not avail.himself of the tender, without pleading it specially, or bringing the money into court on the return of the writ. The defendant excepted to this opinion

      Foster for plaintiff in error.

      J. Findlay for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

An action of covenant for not conveying pursuant to the articles of purchase, is a remedy, not to enforce the execution of the contract, but to recover nominal or substantial damages for the breach of it. That the contract has been rescinded,furnishes no objection to a recovery, in this form, of purchase money paid on the articles; nor is it a reason that the remedy should be an action on-the case for money- had and. received to the vendee’s use. The damages consequent on a disaffirmance of the contract, are exactly what the vendee would loose by it, which, in ordinary cases is the money advanced, and to retrieve this, it is unnecessary that he be driven from the security of his specialty, which covers the whole ground of the injury, to a simple contract, supposed to be implied by the law, which would be less beneficial. For damages due upon a specialty, it seems to me an action of assumpsit could not be maintained. The defence set up on the merits, is that the vendee knowing that the estate had already been .sold by the agent of the vendor who was ignorant of it, concealed that fact at the time of the purchase; and the concealment was certainly a fraud; bu,t one which does not impair the validity of the articles at law, and the question is how far it would give the vendor a right in equity not only to resist a specific execution of the contract, but to control the legal remedy on it. It is clear that a chancellor would relieve him only on the foot of his having done equity to the vendee by a restoration of the purchase money. But could the vendee insist upon both principal and interest? It seems to me he could not; because he paid his money frauduently and to the prejudice of the vendor. Though only that sort of fraud which-is immediately involved in the execution of the instrument, can be pleaded to a deed in an action at law, yet to prevent a •• failure of justice, a defendant is allowed by our practice, under the plea of payment, in an action of debt, or performance? in covenant, to shew whatever would be a good ground for an injunction. Here the defendant having tendered the principal before suit brought, .ought not to have been harrassed with an action; and though this be not an ordinary case where the tender can be pleaded and the money brought into court, it is an equitable defence against the recovery of interest or costs. It seems to me therefore the court erred in directing that the plaintiff was entitled to interest in the shape of damages, and costs in default of pleading the tender and paying the money into cohrt. In all beside, however, we perceive no error.

Judgment reversed and a venire de novo awarded.


text:
    SCOTT against FULLER.
    It is essential to the right of a landlord to avail himself of the provisions of the “Landlord and Tenant act,” by which to dispossess his tenant, who holds over, that a certain rent for the demised premises, was reserved.
    ‘‘Under the rent of taking caro of the grain of 1'. on the place, and keeping out the cattle,” is so uncertain as. that a proceeding before two justices, under that act/ cannot be supported upon it.
    Error to the Common Pleas-of Erie county.

      Jibizer Fuller demised to Charles Scott a certain messuage and tract of land, for the term of twelve days, “under the rent of taking care of the grain of Fuller on the place, and keeping out the cattle.” When the term was ended, Fuller applied to two justices* who issued their precept to the sheriff, commanding him to summon a jury, &c. in order to dispossess Scott. By this proceeding, under the “Landlord and Tenant act,” Scott was dispossessed. He procured a certiorari to issue out of the Common Pleas, to remove the record, and assigned as an error in the proceedings, that there was no certain rent reserved within the meaning of the act of assembly. The court below, having affirmed the inquisition, the proceedings were removed to this court, where the same assignment of error was relied upon.

      Galbreath for plaintiff in error,
    cited the 12th Sec. of the act of the 21st of March, 1772, Furd. 711. Blashford v. Duncan, 2 Serg. Sf Rawle, 480. Warren v. Forney, 13 Serg. S? Raíale, 52»

      Wallace for defendant in error.
   The opinion of tire court was delivered by

Gibson, C. J.

It is certainly true, as argued for the defendant in error, that the rent need not be reserved in words which define its quantity, quality, and duration; but that it is within the terms of the act when it is susceptible of such certainty from extrinsic matters, as to enable the landlord to recover it. Where the contract affords reciprocal remedies, there can be little difficulty in' pronouncing on the relation created by it; and this, as- was intimated in Blashford v. Duncan, is all that the legislature' intended to1 require. And this question of reciprocity, is determinable by the rules of the common law. A reservation is sufficient in this respect, wherever certainty can be had from circumstances dehorsf as in the case put in Co. Lit. 96 a, of shearing all the sheep depasturing in the manor of the lord, because their number may be precisely ascertained. And such is the principle of Shaffer v. Sutton, in which the render, being payment of the taxes, and chinking and daubing the house, was susceptible of accurate ascertainment. But payment of a rent, which is uncertain by the terms of the lease, and incapable of being ascertained by reference to anything else, cannot be enforced, either by distress or by action. Thus it was held in Parker v. Harris, 4 Mod. 77, that a reservation on a demise at will, “paying after the rate of £18 per annum,” is bad; though it would seem from Cole v. Surry, Latch. 264, that if the nature of the rent were1 specified, the rest would he certain enough; and at this day, it would perhaps be taken for a sum of money payable yearly. But the case pot by Littleton, Sect. 136, of the disability of the lord to distrain his tenant in Frankalmoigne, for omitting to perform divine services* uncertain both in time and number, is in principle..the present case, in which the demise was for twelve days,- and, in the words of the inquisition, “under the rent of taking Care of thé grain of Fuller on the place, and keeping out the cattle.” What grain, and what cattle? The grain on the farm, dotrbtleS3. But that leaves the kind uncertain — whether wheat, rye, buckwheat, and oats; or pulse, barley,- millet, spelt, and Indian corn; whether growing in the fields, or put up in shocks, or stowed away in .barns, or deposited in' garners; and whether it were to be protected from cattle only, or from vermin. The enclosures or places, ^ too, out of which the cattle were to be kept, are altogether uncertain — whether the stables, the meadows, the fields lying fallow or with grain in them, or the open' grounds. In common parlance, the words import a general care, so various in its application and so indefinite in its degree, that to enforce it by distress, would be impracticable. Nor could an action be maintained on the contract. In Sherman v. Kitsmiller, 17 Serg. & Rawle, 45, a promise, in consideration of service or marriage, to give “one hundred acres of land,” without reference to any particular tract, was held void for uncertainty. Yet it was at least as definite as an undertaking to keep out cattle and take care of grain. Though a promise to give bond for £40, without specifying the penalty, has been held good, on the ground, that double the sum shall be intended, 1 Lev. 38, it has been determined that an undertaking to prepare; a bond for performance of a covenant io pay two shillings the seam for such bark as the plaintiff should cut, is void, because the number of seams being uncertain, no particular sum can be intended. 1 Sid. 270. At this day the same degree of certainty would hardly be reqúired; yet though the words of the party promising are to be takén most strongly against himself, and certainly to a common intént be all that is essential, the contract will be invalid, if it be not only uncertain in its terms, but incapable of deriving certainty from some thing else. ít seems therefore, there was no reservation of any thing that could be recovered by action, or enforced by a distress ; and that the landlord was not entitled to the summary remedy provided by the legislature.

Judgment of the Common Picas reversed, and proceedings of the justices quashed*


author: Kennedy, J.

text:
    BURSON against KINCAID
    Á release by the plairitlff of the estate of a deceased surety from the lien of á judgment, will not operate as a release of the principal co-defendant, so as to give priority to subsequent judgment creditors of liis, when it appears that the co-defendant assented to such release.
    A release of one joint có-obligor is a release of all; But a release of an obligor in á joint and several obligation is not a release of all.
    Error to the Common Pleas df Green county;
    This was a feigned issue, joined in the court of Common Pleas of Green county, under the direction of the court, between Isaac Burson plaintiff and William, Kincaid) John Morrison and Benedict Horner defendants, for the purpose of deciding whether the defendants were entitled to a preference in receiving from thé sheriff of that county the money arising from a sale made by him of •lands, the estate of Dennis Cain, which had been taken in execution.
    On the 16th of January; 1826, a judgment was entered dn the docket of the court of Common Pleas of Green county by the Prothonotary, upon a judgment bond in favor of John Bell, sr, against Dennis Cain and John Cain for a debt of three hundred dollars with interest from the 12th of the same month. John Cain was merely a surety in this judgment for Dennis. Some time after the entry of the judgment, John Cain the surety died: Dennis Cain the principal debtor surviving, who administered upon the estate of the deceased. Dennis Cain after taking out letters of administration, gave a warrant of attorney to, Andrew Buchannan an attorney of the same court, authorizing him to appear and enter or confess a judgment of revival on the above judgment against himself as the surviving defendant, and also against him as the administrator of John Cain, the deceased, which was accordingly done by an entry of June term, 1828, No. 52. On the 3d of March, 1829, John Bell the plaintiff, for value received,'assigned this judgment to Isaac Burson the plaintiff in error, who afterwards, on the same day, under an agreement made with Dennis Cain the deceased, sealed and delivered a release in the following tei'ms: “I,

      Isaac Burson, do hereby release-and exonerate the above judgment (meaning the above mentioned) as to the estate of John Cain deceased. Witness my hand and seal the 3d March, 1829, and say it is to be no lien against the estate of John Cain, deceased.”
    ISAAC BURSON, [l. s.]
    On the 31st of May, 1828, a judgment for one thousand dollars debt, with interest from the 28th of the same month, was entered upon the docket of the same court, against Leonard Bévins and Dennis Cain, in favor of William Kincaid, John Morrison and Benedict M. Horner, the defendants in this writ of error.
    On the trial of the feigned issue, the counsel for the plaintiff put several points to the court below, upon which he prayed their direction to the jury. The second is the only one which was argued. It presents this question. — Did the release of Isaac Burson, given by the consent and a¡:>probation of Dennis Cain the surviving defendant in the judgment, and the administrator of John Cain, the deceased co-defendant and surety, release and discharge Dennis Cain or his estate from the lien and payment of the judgment?
    Upon this point, the court below charged the jury, that “the release of one of the defendants by the judgment creditor, is a discharge of the other. He cannot release the one and hold the other bound. We cannot think it makes any difference (as between the parties to this issue) whether the one released was, in the original contract, a joint.principal or surety: and although Burson may-have been pursuaded to execute the release, by Dennis Cain and Jhe legal representatives of John Cain, yet still the release is a discharge of the judgment, as respects the present defendants; and they have consequently a right to the money, which is the subject-matter of the controversy.” A verdict and judgment were rendered for the defendants.

      Hawkins for plaintiff in error.
    It will not be controverted that as a general rule the release of One of two or more joint debtors, will discharge the rest. Like all other general rales known, it will admit of exceptions. To operate in this way the release should be general. A mere release of the lien of the judgment ought not and cannot operate as a discharge of the debt. What particular form of words will constitute such release has not been judicially determined in this state, but there is a dictum of the Court in the case of the Bank of Pennsylvania, SfC. v. Winger fy Reidebaugh, 1 Rawle, 302, which is. express, that a mere release of.a lien will not discharge the debt. This case very much resembles the present one. The Bank had a judgment against Winger the principal debtor, and Reidebaugh the surety. Reidebaugh?s land was sold, and the Bank believing that the property of Winger was sufficient to satisfy their claim, waived the right of priority in favor of a subsequent judg? ment creditor of Reidebaugh. In the language of the Chief Justice, it waived its preference in favor of a surety to pursue the principal — the very thing that a court of equity would have compelled it to do.
    Admitting, however, that the release had been such an one as in point of form would extinguish the lien, will not the circumstance of its having been executed with the knowledge and by the request of Dennis Cain, take it out of thé general rule, which has been established in relation to joint debtors? In discussing this question, two points arise, first, the effect of the release as between the parties themselves, second, the effect of it as between the parties and the releasor.
    As between the parties themselves there can be no doubt. The very case on which the defendants rely, will shew that the rule does not apply to this case. The grounds upon which a release of one of two joint debtors is held to be a discharge of the other is, that it increases the responsibility of the remaining obligor without Ms consent. Judge Huston, in speaking of the rule that a release of one is a discharge of all, in the case of Milliken v. Brown, says, “Has it not its foundation laid deeper than some of the cases suppose, in this, that where several persons have contracted together, and several of them are bound to one, - in a certain way, that one shall not of his own accord, or by collusion with another, change the several responsibilities. ,
    If, however, as.in this case, the responsibility of Dennis Cain is increased by and with his consent, the .release of the lien against the property of John Cain, cannot discharge the lien against Dennis Cain. On this point Barrington v. The Bank of Washington, 14 S. 4’ R.- 423, 8p Speaker, v. U. States, 9 Cranch, 26, were cited.
    The second point is as clear as the first. How are third persons effected by this release? To shew that they were not effected, let it be taken for granted that John Cain were still living, and that, his property had been sold, and the proceeds applied to the payment óf this debt — bow then would the case have stood, as between John Cain and the present'defendants? Clearly' John Cain would have been entitled to be'substituted in the place of Isaac Bur son,' and on the sale of Ben nis Cain’s property would have been entitled to the proceeds in preference to the present defendants. On this point 'Fleming v. Beaver 2 Raiole, 128, Sf 1 Raiole 295, were cited.
    Before the release was executed John• Cain the,surety and releasee died, Thejudgment bond on which the judgment was entered, was joint. It is submitted whether by the death of John Cain, his estate was not discharged, atleastso far as respeols his personal property and other lands not lying within the county of Creen, when the release wás executed. If it was. discharged by his death, the release had nothing to qper^te upon.] And it it was discharged, the administrator as such, could by no act. of his revive the judgment or continue the lien upon the real estate of John Cain. In support of this position a case decided by the Court of Appeals, Va. was cited, 2 Wash. Rep, 136, wherein relief was refused against the Executors of a deceased ob ligor, who was a surety in a joint bond.

      McGiffin for the defendant -in error referred to Millikin v. Broom, 1 Raiole, 391, '
   The opinion of’ the court was delivered by

Kennedy, J.

It is evident, in this case, that the plaintiff was entitled to be first paid the amount of the judgment which had been assigned to him by John Bell, Senior, out of the moneys arising from the sale of Dennis Cain’s land, against whom the. judgment was, unless the court below were right in their direction to the jury, as to the effect of the release. This judgment was entered qn the 16th of January, 1S26, with a stay of execution, until the 12th clay of October then next following. The judgment of the defendants, under, which they claim the money, was not entered until the 31st of May, 1S28. Consequently tbe judgment under which the plaintiff claimed, was the'first lien upon the land sold by the sheriff; and could not cease to continue a lien, without some, act of the plaintiff or his assignor annulling it, within less than fiye years, during which time the sale of the land was made. Indeed, tbe revival of this judgment by Dennis Cain, the defen-, dant, at June term, 1828, would have been sufficient to, have continued the ljen of ij five years lo.nger from that time.

In the abstract it is certainly true, and a' principle of law-well .settled, that if a creditor release one of' two joint debtors, whether they be indebted upon a simple contract, bond or judgment, it will also be a discharge of the other from the debt. Why is it so? bo-i cause otherwise the whole burden of the debt would be thrown ppon one of them instead of both, which would be directly contra,^ ty to their undertaking and contract. Upon the same principle it has been held, that if the obligee in a bond, given to him by two or more jointly, tear off the seal of one of the joint-obligors, or in any manner cancel the bond as to one of them, it discharges all the rest. It was in its concoction, the joint bond of the whole; but the moment it is cancelled by the obligee, as to one of the obligors, it ceases to be the bond or deed of all. In short, it ceases to be the same bond, if bond at all it can be called. By the original contract, under which it was given, it was agreed, and made to be, the joint obligation of all; and .without a new agreement between the same parties, it cannot be made the bond of a less number; at least, it cannot be changed and made the bond singly of anyone or more of them, short of the whole number, without their consent. To make it the bond of one instead of two, necessarily increases the weight of the obligation; and no man is to - have an obligation imposed upon him without his consent. But an obligee or covenantee may release one of two several obligors named in a bond, or one of two several covenantors in a deed, or cancel the bond or deed as to one, by tearing off his seal without the consent of the other, and for this reason, too, that it does not increase the responsibility of the other obligor or covenantor, or change in any manner the nature of his obligation or covenant. It was the bond or deed of each singly before, and the obligee and covenantee had a right to look to either singly for the fulfilment of it, and the one, therefore, can in no wise be injured by cancelling the bond or deed as to the other. See Mathewson’s case, 5 Co. 44.

So it is well settled, that if the name of one of two or -more joint-obligors be stricken out br erased, or his seal torn from a bond by the consent of the obligee and the other obligors, it shall cease to be the bond of him whose name is so stricken out or erased from it; but shall from that time be the bond of the others. And for what reason? Because it was their agreement that it should be so. Their agreement alone, in this respect, without more, is equivalent to a new, and re-execution or re-delivery of the bond, as their act and deed. Amere formal delivery or re-delivery of it is unnecessary. Barrington v. The Bank of Washington, 14 Serg. & Rawle, 424. Speaker v. The United States, 9 Cranch, 28.

And this is upon the principle that they have assented to it, and if they were not hold to be bound by the bond in this instance after-wards, it would be a reproach upon the law and the administrationpf justice; because it would be to permit the remaining joint obli-. gors to violate most grossly their own agreement, and thereby to commit a most palpable fraud upon the obligee, and cheat him out of-his money.

Now apply these principles to the case before the court, and can fhere be any doubt that t]ie release ought 1o operate otherwise, dr have a different effect from what was expressly agreed on and intended by the parties. To the release in this case, the judgment creditor who gave it, the surviving defendant in the judgment- and the administrator of the deceased defendant, were parties; and the release was given in pursuance of an agreement made hy-and between them. . That Dennis Cain, the principal debtor, ought to be bound by his - agreement, can admit of no doubt; and I presume that the court below thought so; for in giving their opinion to the jury, that the release was a discharge of the judgment, they qualify it by saying, “as respects the present defendants.” But why shall it be a discharge of 'the judgment in favor of the present defendants? They were not parties to it; had no interest in it; and w'ere not bound by it, or responsible for the amount of it, in any way. The release given by the plaintiff in this, case, imposed no obligation upon the defendants; and was not intended to take from or deprive them of any right with which they were vested, or in the least to diminish the security which they had upon Derinis Cain for the payment of their judgment; nor can it have such an effect to decide that the lien of the plaintiff’s, judgment continued in full force upon the real estate of Dennis Cain, against the defendants, and all the world,' notwithstanding the release. It is impossible to conceive in what way the defendants, could have been prejudiced by this release, unless, indeed, under some circumstances, it might have been in their power to have compelled the plaintiffs to look to the real estate of John Cain for his debt, so as to leave them the advantage of securing their judgment out of the estate of Dennis Cain, or by paying or tendering to the plaintiff, the amount of his judgment, entitle themselves to be subrogated to his rights, in the collection of it; but under no circumstances that could have occurred, could- this have been done. On the contrary, had John Gain continued to live, and been compelled to pay the plaintiff’s judgment, I apprehend, that in equity, he would have been entitled to the benefit of it; not'only against Dennis Cain, the principal debtor, but against the present defendants, for the purpose of reimbursing himself; and upon this principle, were he now living, after having paid the amount of it, would be entitled to-claim it, out of the moneys arising from the sale of Dennis Cain’s real estate, in preference to the defendants. Fleming v. Beaver, 2 Rawle, 131. Cheesborough v. Millard, 1 Johns. Ch. Rep. 413. Hays v. Ward, 4 Johns. Ch. Rep. 129. Burrows v. McWharnet, 1 Desaus, 409. Miller v. Pendleton, 4 Hen. & Mundfr. 436. Hence, in no correct view that can be taken of this case, can it be sustained, that the defendants are placed in a worse situation than they stood before, by giving full effect to this release, according to the agreement and the wishes of the parties at the time of making it. It was but a release, at most, of the real estate, late of John Cain, lying within Green county, and owned by him at the time of entering the plaintiff’s judgment: for as to the personal liability, and all the other real and personal estate of John Cain, his previous death released all that from the payment of this judgment. And if John Cain was not the owner of any land or real estate upon which this judgment operated as a lien, the release produced no effect whatever; for by law, the entire responsibility of paying, devolved upon Dennis Cain; and he being the real debtor, and John having been merely his surety, even equity would not compel payment of the debt, out of John’s estate in case of Dennis’ insolvency and inability to pay. The case of Millikin v. Brown, 1 Rawle, 391, and the insulated expressions of the judge who delivered the opinion of the court in that case, have been quoted and relied on by the counsel for the defendant in error. There is nothing in the principle decided in that case, nor yet any thing said by the learned judge who delivered the opinion of the court, when viewed in reference to the case then before the court, or when taken in connection with all that he did say, that will support or warrant the direction of the court below in this case to the jury. The judge who delivered the opinion of the court in Millikin and Broion, in speaking of the effect in law of a release by the creditor to one of two or more joint debtors, that it would be a release of all, whether so intended or not, has reference only to what was the intention of the releasor and the releasee. Because he is then speaking of those cases where the other joint debtors, not named in the releases, were not consulted or made parties to the arrangements upon which the releases were founded. And the reason which he there, in page S99, assigns, for the principle by him laid down, shows clearly, that he was speaking of those cases where releases to one of the joint debtors had been given, without consulting and obtaining the consent of the others. He says the foundation of it consists “in this, that where several persons have contracted together, and several of them are bound to one in a certain way, that one shall not, of his own accord, or by collusion with one of them, change their several responsibilities;” implying, necessarily, that when it was done by the consent of all concerned, the effect would, and ought to be, in accordance with the intention of the parties, whatever that might be.

The judgment of the court below is reversed, and a venire de novo awarded, if it should be thought necessary to call a jury again, after the decision of this court on the question of law; which seems to have been the only thing that was contested. With respect to the matters of fact, there does not appear to be any controversy.

Judgment reversed, and a venire de novo awarded.


author: Per Curiam

text:
    GOODRICH against TRACEY.
    It is not essentia! to the validity of an insolvent bond, that the insolvent himself should be bound in it: it is sufficient if it be executed by the sureties alone, and allowed by the judge.
    A justice of the peace has jurisdiction of an action on an insolvent bond, being ill ■ amount not exceeding one hundred dollars; and if, upon such bond, the action originate in Ceyrt, the p'laintilF is not entitled to recover costs.
    Error to the Common Pleas oi,Crawford county.
    This was an action of debt brought iii the court of Common Pleas of Crawford county, by John Tracey against Jabez Goodrich and Jared Shattich, upon an insolvent bond, in the penalty of seventy dollars, conditioned for the appearance of Samuel Lord, to lake the benefit of the insolvent laws. In the court below, the de^ fendants, in a special plea, set out the circumstances under which the bond was given, and relied upon the fact, as a defence to the action, that Samuel Lord, the insolvent,. had not executed the bond. To this plea the plaintiff demurred; and the court (Ship-pen, president,) sustained the demurrer; upon which a judgment was rendered for the plaintiff, with costs.
    In this court two errors were assigned. First, in rendering judg-' ment for the plaintiff on the demurrer; and, second, in rendering a judgment fo'r posts.

      Wallace, fof plaintiff in eiror,
    cited Bollón V. Robinson, 13' Serg. Rawle, 193. Boyce v. Wilkins, 5 Berg. $r Rawle, 829,

      Derrickson, for defendant in error,
    Was stopped by the court.
   Per Curiam

The letter of the act which requires the insoU vent debtor jo give bond with such security as shall be required by the judge, is strictly satisfied by giving the bond of the sureties j and as to the spirit and intent of it, we are at a loss to perceive what additional security the personal responsibility of the insolvent would be to the creditor, who has his personal responsibility already. The demurrer, then, was rightly sustained ; hut as a justice of the peace has undoubted jurisdiction of this species of bond. When for a sum less than one hundred dollars, there was error in giving judgment for the plaintiff with costs.

Judgment reversed as to costs, and affirmed for the residue.-


text:
    PROPER against LUCE.
    Articttdments at the common law are not subject to revision on a writ oí- error. But statutory amendments, being- demantlable of right, though involving the exercise of a legal discretion, are.
    In an action of slander, where the words spoken are so defectively set out as not to be actionable) the declaration may be amended by setting out a good cause of action, providéd the words substituted import a charge generically the same.
    The omission of the word “firmly” in ah affidavit made to obtain an appeal, is a fatal defect, which cannot be cured by the substitution of a perfect affidavit after the time allowed for an appeal; but such defect in the appeal is waived by the party taking the costs out of court, which were paid by the appellant:
    Error to the Common Pleas of Venango county.
    This was aii action of slander, in which James Luce was plaintiff, and Samuel Proper was defendant. In the declaration the alleged slanderous words were thus set out: “He” (the Said James Luce meaning,) “had to go and stand Up before court and Stop his hand on his mouth and say, I” (himself, the said Janies Luce meaning,) “am a liáf, and he” (the said James Luce meaning,) ‘^gave a libel, and it stándsrecorded in Meadville against him” (the said James Luce meaning,) “yet, and he” (the said James meaning,) “made a libel and is infamous) and a common libeller.” (meaning, &c.) Subsequently, by leave of the court, this declaration wás Withdrawn ánd a new one substituted, in which the alleged slándeh¡ous words Were thus set out: “He” (the said James^ the pláintíff meaning,) “swore to a lie and is perjured, and he (the said James the plaintiff meaning) “had to go and stand up before court and Stop his hand on his mouth and say to his mouth” (the m'óütb of the said James the plaintiff meaning,) “you” (the said moüth méaning)) “are a liar; and he” (the said James the plaintiff meaiiing,) “gave a libel, and it stands recorded against him” (the said James meaning-,) “in Meadville yet, and be” (the said James meaning,) “made a libel and is an infamous and common libeller,” (meaning, &c.) Afterwards the cause was referred under the compulsory'arbitration act, and an award was made in favor of the plaintiff; from Which the defendant appealed. In his affidavit made on the appeal, the word “firmly” was omitted. The costs having been paid, the plaintiff received his from the prothónotary. A motion was made at the next term to strike off the appeal, because of the said defect in the affidavit when the defendant made another and perfect affidavit and offered to file it, but the court decided that it could not bé received; and struck off thé appeal.
    The following errors were assigned:
    1. The court erred in granting leave to file a new declaration, introducing a new and specific cause of action.

      2d. The cdutt erred in rejecting the second affidavit of the defen'dant, and supplying the word “firmly” omitted in the first.
    3. The court erred in quashing the appeal, the plaintiff having received from the prothonotary the costs paid in by the defendant on the appeal.

      Galbraith for plaintiff in error.
    The act of assembly allows amendments to be made, but does not allow the substitution of a new cause of action. In the declaration first filed, it is set out that the defendant charged the plaintiff with having given a libel — that he was an infamous and common libeller; in the second it is, that he charged him with perjury. Johnston v. Tate, 5 Bin. 121.
    Although the affidavit was defective, yet that defect was waived by the plaintiff taking the costs which had be.en paid on the appeal, as is expressly decided in Beidman v. Vanderslice, 2 Rawle, 334_

      Pearson for defendant in error,
    Contended, that the cause of action set out in the second declaration was not new, but substantially the same with the first: and that it was properly allowed. Cunningham v. Bay, 2. Serg. 8? Rawle, 1. That no objection having been made to it at the timé, and not until after the cause had been referred and tried before arbitrators, it was now too late to make the objection.
    The plaintiff at the time he took out the costs might have treated the appeal as a nullity, and taken out executions; it cannot therefore make any difference that he took the costs without execution.
   The opinion of the court was delivered by

Gibson, C. J.

Amendments at the common law, being reducible to no rule, but grantable as they happen to"appear conducive to justice, are not subject to revision on a writ of error. But statutory amendments being demandable of right though involving the exercise of a legal discretion, are constantly inquired of here; as under the act of 1806, the power conferred by which is no further restrained than to prevent the introduction of a different and distinct cause of action. The rule seems to be, that the plaintiff is not to have recourse to a new subject or transaction; and according to that the ground of action in slander would remain the same, though different words were substituted, if importing a charge generieally the same. Here however there was no cause of action in the derelict count, the import of the term “common libeller,” the only actionable words laid, being qualified by the context so as to mean one who, in popular language, perhaps peculiar to our own state, is in the practice when called to account, of giving a libel; in other words, a written admission of the falsity of a story propagated by himself. This peculiarity was not sufficiently adverted to in An drew, v. Koppenheaffer, 3 Serg. & R. 255, where the obnoxious words, I am now convinced, were used in that sense. As then the substantial part of the cause of action was omitted in the present case, it seems to be one of those which the legislature had especially in view; and if the count were not amendable, every slip which leaves the subject of the demand imperfect, would be irretrievable. The proper limitation to this is, thatsuch a slip would afford no pretext to introduce a cause of action which belongs to a class entirely different from the one apparently attempted.

In regard to the remaining points, it is clear that no supplemental affidavit could be received to supply the word “firmly” omitted in the original. But it is also clear, that taking out of court the eosts that were paid in on the appeal, was a confirmation of it, and a waiver of that undoubted defect. The argument is, that the appeal being a nullity, the appellee ought not to be prejudiced by accepting what belonged to him in any event, either by virtue of the appeal or the award of the arbitrators. The answer is that the appeal, so far from being void, was available for every purpose till it was avoided by the judgment of thecourt; and that while it was pending, the party was entitled to take out the costs on no other terms than those on which they were paid in, and in no other character-than that of an appellee. By receiving the costs from the prothonOtary, then, he waived all objection.

Judgment reversed, with direction to reinstate the appeal.


text:
    BARNES against M’CLINTON.
    Notice to abidder at sheriff’s sale, that another claims the land, is sufficient to put him in the same situation with regard to a trust, as he as whose property it was, sold. All that is necessary is, to give a purchaser such notice as is sufficient to put him on an inquiry leading to the whole truth. It is not necessary that the notice should contain full, entire, and circumstantial information of every fact which it may be material for the purchaser to know.
    Notice to counsel in the same transaction is presumptive notice to the client.
    Error to Allegheny county.

      Margaret Barnes, and the other children of James Barnes, deceased, brought this action of ejectment against Bobert Morgan and Nathaniel M’ Clinton, to recover one hundred and eighty acres of land. Upon the settlement of the estate of James Barnes, deceased, there was a sum of money due to his children, which came to the hands of Andrew Scott, with which, it was alleged-by the plaintiffs,• he purchased the land in dispute, in trust for them; gpd some evidence of Scott’s parol declarations, establishing this, trust, was given. Scott died insolvent, and the land was levied on and sold by the sheriff, and purchased by Nathaniel M’Clinton, one of the defendants. The only question of law, which was argued and decided by this court was, whether the evidence of notice to M’ Clinton of this trust, at the time he purchased the land, was such, as to place him, with regard to the title, in the same situation in which Scott stood. On this subject Mr, Fetterpiian, testified, that he was present when the land was sold, and read a notice, the substance of which was, “That Barnes’ heirs claimed the land; and any one who would purchase it, would buy a lary-suit. ” Evidence was also given that this notice was communicated to M’ Clinton. The court below was of opinion tliat suph notice was not sufficient, and so instructed the jury, whq found a verdict for the defendants.

      W. W. Fetterman for plaintiffs in error,
    Contended, that the only notice that was necessary, was such as would put the purchaser upon his guard, and lead him to inquire gfter the truth; and that the notioe in this case wa? abundantly suff ficient.

      Burke and W. Forward for defendants in error.
    The defendant is the purchaser of the legal title at sheriff’s sale; and the question is, as to the kind of notice of a claim like the present, with which thp purchaser shall be affected. Proof that a counsel, whom the purchaser consults, had notice, derived from previous transaction^, is not sufficient. 2 Bilk. 242. 3 Bilk. 392, Sag. on Fen. 535. Counsel, attorney, pr agent of the party, not admitted to prove nptice. Svg. on Fen. 548-9. In this case, the only evidence of notipe to tlie purchaser, is that of Mr. Riddle, who was employed by him to examine the title, and who says, that he saw Mr. f¿Herman’s notice, and thinks (thpugh he is not certain,) that he mentioned it to M’ Clinton. The person giving notice must be interested; he must have authority to give the notice; and he must disclose that authority at the time of giving it. Niig. 512, 532, &c. Ii; this case, it does not appear that the notice dis-> closed the interest pr authority of the person who gave it. There must be np.tice of the kind of claim. Vague, loose, and general noticp is not sufficient. The owner of the legal title should have direct, express and positive notice, otherwise he takes the property discharged of the trust, which existed between the original parties, 14 Serg. fy Rawle, 333. There should be clear proof of actual notice. The notice should be actual, circ%b%nstantial in the transaction, and by the party in interest. Nothing short of this, which is actúa] fraud, will postpone a legal title; and the fraud ?nust be very clearly proved. 8 Serg. fy Rawle, 496. 3 Cruise, 363. 2 JUtle. 275. 2 Mass. 506. 2 Vernon, 159. 5 Serg. fy Rawle, 257, 261. 1 Rawle, 386. The registry of a deed defectively proved or acknowledged, is not constructive notice to a subsequent purchaser, although the registry be made in the proper county. 2 Bin. 40. It is for the interest of the public that land should sell for its fair value at sheriff’s sale, and that honest purchasers should not be disturbed by secret trusts. 3 Bin. 89. In cases like the present, persons alleging the existence of a trust, should be required to disclose at the time of the sale, a circumstantial account of the nature and circumstances of the trust. This might be done by leaving a statement in writing in the hands of the sheriff, to which bidders might be referred. Here the notice was merely, “that the heirs of Barnes had a claim;” and, even if it were brought home to the purchaser, he was not bound to regard it.
   The opinion of the court was delivered by

Gibson, C. J.

The first and second errors aro unsolid; and the question turns on the direction, which is the subject of the third. Questions of notice, the facts being loft to the jury, und'oubtedly belong to the court; and here, it would seem, there was no fact in dispute, the agency qf Mr. Fetterman not being contested, and it being taken for granted that the notice given by him had actually-reached the purchaser through his counsel; so that the question haa respect to its sufficiency. As to that, Mr. Fetterman testified that he had publicly read to the by-standers, and put up at the place pf sale, a written notice of the claim of Barnes’ heirs,’which, at his return to the spot after the sale was over, lie found had been removed. It is difficult to imagine what more, in the case of a public sale, can be done. But the point seems to stand clear of diflieulty, when viewed in connection with the admitted fact, that the purchaser had actual knowledge, through his counsel, of the contents of the paper; less than which would be sufficient to affect him, notice to counsel in the same transaction, being presumptive notice to the client. Nor would he be protected from an examination of the counsel, if that were necessary,, to show a communication of the notice, the fact not having been obtained from him, and of course not being a subject qf professional confidence. The objection, then, must lie, if at all, to the body of tiie notice which ought, it is said, to contain full, entire, and circumstantial information of every fact which it may be material for the purchaser to know. But such, I take it, is not the law. A purchaser at sheriff’s sale would seldom, bo affected, if error in the abstract of a title were to vitiate the notice. Mr. Fetterman spoke generally of the contents as being “notice of the claim,” the natural conclusion from which is, that every essential was comprised. But containing less than an abstract, or thé particulars of the claim, the notice would still be available, if containing sufficient to put the purchaser on an inquiry leading to the whole truth; and this I take to be an 'elementary principle. If, indeed, no accessible source of information were known or pointed out, that might make a different ease. 'But Mr. Fetterman was-on the spot to answer all questions j and to disregard his warning, evinced wilful blindness, and a culpable determination tq brave the consequences: and under such circumstances, a purchaser ought not to be protected.

Judgment reversed, and a venire de novo, awarded.


text:
    TRAER against BOWMAN.
    The motion for judgment, in an action of ejectment, must be founded on an . affidavit of the service of the writ, and must be at the term when default is made.
    Error to the Common' Pleas of Fayette county.

      Richard E. Bowman brought this action of ejectment against Geo. Tracy, for a house and lot oí ground, with the premises, situate in Smithiield, George township, and occupied by said Traer as a public house, containing forty four perches of ground, number-11 in the plan of. said town, adjoining lots of-.” The writ-contained the same description. The suit was brought to October term, 1823. There being no appearance. fo,r the defendant, the court,,on motion,'entered a judgment for the plaintiff; which they afterwards, on argument refused to open.
    The errors assigned were — I. That the judgment ivas entered without an affidavit of the service of the writ, and not at the term when default was made, and, 2, That the .description was not sufficient.,,

      W. Wilkins, for plaintiff in error,
    cited 2 Sec. of the Ret of IS Rpril, 1807, Purd. Dig. 204. Lyons v. Miller, 4 Serg. 8? R. 279.

      Rustin contra,
    cited Cahill v. Benn, 6 Bin. 99. 1 Penría. Prac. 32. Crosby v. Massey, 1 Penría. Rep. 232. 2 Penría. Frac. 425.
   Per Curiam.

It is unnecessary to saly any thing about the description, as the judgment is clearly irregular. The act of assembly-points out the method to b.e pursued in similar cases. The motion for judgment must be founded on an affidavit of service, and must be at the term when default is made. There was no affidavit here# and the judgment was had at an improper time; so that it is impossible to sustain it.

Judgment reversed


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    BUFFINGTON against THE TURNPIKE COMPANY.
    It is not necessary to the right of a turnpike company, to recover in an action against a subscriber for stock, that a certificate of stock should betendered before suit brought.
    The book of the Turnpike company, in which the defendant was credited with the payment of the stock subscribed by him, is prima facie evidence that it was paid; and it is error to reject such evidence, although it should appear to the court that the credit was given, contrary to a resolution of the managers of the -company.
    Error to Armstrong county.
    This action was brought by the Butler and Kittaning Turnpike Road Company against Joseph Buffington, to recover.the amount of two shares of stock subscribed by him. The defendant offered in evidence the book of the treasurer of the company which «contained a credit for the amount of the stock subscribed by him -f and to prove by parol, that it was paid by an order of a contractor# to whom the company was indebted, on the treasurer, by whom it was accepted, by authority of a resolution of the board of managers. To this evidence the plaintiff objected, and in support of their objection, gave in evidence a resolution of the board of managers to shew that the credit was unauthorized. The court sustained the objection and over-ruled the evidence which was excepted to. The •defendant asked the court to instruct the jury that a tender of a .certificate of stock, before suit brought, was essential to the plaintiff’s right to recover. But the court was of a different opinion, and so instructed the jury, who found a verdict for the plaintiff.

      Blair for plaintiff in error.

      White contra.

   Per Curiam.

The tender of a certificate was not a condition precedent to an action for the price of the stock; but it is not easy to see on what principle of evidence the credit in the plaintiff’s own 'book was rejected. It was prima facie evidence of payment: and though it might be rebutted, it was certainly competent- in .the first instance. "

Judgment reversed and .a venire de novo awarded.