author: Agnew, J.

text:
    The Manhattan Coal Co. versus Green.
    1. A younger Hock of surveys called for older Hocks on the north and on the south; there not being sufficient vacancy to answer the calls of all, the younger must give way.
    2. No mistake in the calls of the younger survey could affect the location of the older; it could not be changed by the calls of the younger.
    3. To locate the younger the proper way was to run out the older blocks; the first surveys of the younger would be entitled to the vacant land.
    4. Precisely descriptive warrants are those which so clearly describe the land that it can be readily identified and the warrant applied; they take title from their date.
    5. A vaguely or loosely descriptive warrant ascertains only propinquity, and the land must be surveyed in order to identify it and render it certain; it takes title from the survey.
    6. A warrant to My'er was “ 400 acres on a branch of Big Schuylkill called ‘Big Run,’ adjoining lands surveyed on a warrant to John Hartman, down the said creek one mile, near the Tory path, Berks county.” There was no survey for John Hartman earlier than- the warrant; but one later. Held, that the Myer warrant took title only from the survey.
    7. A survey without a warrant is void, excepting surveys allowed to actual settlers under Act of April 3dl792.
    8. Hubley Van Horne, 7 S. & R. 185 ; Norris v. Monen, 3 Watts 469 ; Patterson v. Ross, 10 Harris 340, followed.
    March 6th 1873.
    Before Read, C. J., Agnew, Sharswood, and Mercur, JJ. Williams,-J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 167, to January Term 1870.
    This was an action of ejéctment brought April 3d 1856, by ' John Green against Thomas J. Atwood, for a tract of land in Foster township, containing 350 acres of land or thereabouts, and bounded by lands surveyed on warrants granted to John Hartman, John Kunkle, Christina Levenburg and others. The Manhattan Coal Company were on the 3d of November 1869, substituted as defendants.
    The plaintiff claimed under a warrant of February 27th 1793, • to Philip Myer, for 400 acres surveyed May 19th 1794; the land as described in the writ was claimed by defendants as part of four warrants of November 18th 1793, in the name of John Shomo, Anna Maria Shomo, Henry Thiell and Susanna Sillyman, surveyed in January and February 1794.
    The case was tried November 3d 1869, before Ryon] P. J.
    The plaintiff’s title was as follows :—
    Application February 27th 1793: “Philip Myer for 400 acres of land on a branch of Big Schuylkill, called ‘ Big run,’ adjoining lands surveyed on a warrant granted to John Hartman, down said creek one mile, near the Tory path.”
    Warrant February 27th 1793, to Philip Myer (same description), in the county of Berks.
    Survey May 19th 1794, by Henry Vanderslice, deputy-surveyor, situated on the branches of Big Schuylkill, in Berks county, containing 400 acres, 145 perches and allowance.'
    In the draft a stream; calls to adjoin on the north John Kunkle.; on the east Christina Levenburg — one part west marked vacant, and on south and south-west no call. Return of Philip Myer on 3d September 1794. Patent 31st December 1838, of same tract to William C. Levensworth.
    By various conveyances, fifteen-sixteenths of the Philip Myer survey were vested in the plaintiff before the commencement of the suit; the remaining sixteenth was acquired by him May 8th 1865.
    The Philip Myer survey was one of a block of thirteen surveys, warranted February 27th 1793 and February 18th 1794, and surveyed from May 19th to May 27th 1794; the batch was not marked on the ground; this block included surveys in the names of Killian May, Mary and John Kunkle, Robert Kinnear, Christina Levenburg, &c.
    The calls on the northern side of the block of thirteen are • for surveys in another block having the original marks; the surveys in this block were made in 1787, 1788, 1790, 1792, in the names of Zerbe, Yarnall, Kunkle and others.
    On the south of the thirteen is a block of sixteen surveys warranted November 18th 1793; two of them in the name of Susanna Sillyman and Henry Theill respectively, surveyed by William Wheeler, deputy-surveyor, January 22d 1794. The remaining fourteen warrants were surveyed from 11th to 18th of February 1794, by Henry Vanderslice, deputy-surveyor; amongst these were surveys in the name of John Shomo, Ann Maria Shomo, ■George Groh, Jr., &c.
    There were no marks on the ground on the northern side of this block, but upon the south side and on some of the intermediate surveys there were marks by which, and by the calls, the whole block including the lines of the northern surveys can be located.'
    On the 5th of August 1793, a warrant was issued to John Hartman, for 316 acres on Broad mountain, including several springs and a run emptying itself into the west branch of Schuylkill, in Brunswick township, Berks county, and surveyed 21st August 1793, by William Wheeler, deputy-surveyor, “for land in Brunswick township, Berks county, 317 acres.” Calls for vacant land all around.
    No warrants or survey in the name of John Hartman earlier than the above could be found.
    The defendants owned the whole of the block of the sixteen surveys. In locating this block there was not room between its northern line and the southern line of the northern block for the block of thirteen.
    According to the plaintiff’s theory, the deputy-surveyor made -a mistake in the call on the southern side of the block of the thirteen surveys, and that therefore by protracting those surveys from the distinctly-marked surveys of the northern block, the location of the Philip Myer would be on the Sillyman, Thiell and Shomo surveys in the defendant’s block of sixteen; and where plaintiff claimed it to be.
    The evidence in the case was very voluminous, very much of it was as to where the “ Big run” and “ Tory path” were; a great deal also bore upon the location of the surveys in the block of the sixteen and that of the thirteen surveys.
    There was much evidence on questions not considered in the opinion of the Supreme Court. Also, bills of exception on questions of evidence.
    What has been given, with the answers of the court below to the points of the parties, and the opinion of the Supreme Court, will sufficiently exhibit the case. The. plaintiff’s 1st and 4th points, with their answers, are as follows : — ■
    1. “ The warrant to Philip Myer being reasonably descriptive on its face, if it was surveyed on the land described in the warrant on the 19th May 1794, and returned into the land office on 3d September 1794, the title refers back to the date of the warrant, and no person had authority to interfere with the land described in the warrant after its date. The title being fixed in the owner of the warrant at its date, and followed by a survey returned within a reasonable time, any survey made for other parties after its date, on the same land, is merely void as against the owner of the prior warrant, and cannot affect him without his consent, and the plaintiff has a right to recover.”
    Answer: “ The first point affirmed, with the remark that whether there was a ‘Big run,’ a branch of the Big Schuylkill, in 1794, and a ‘ Tory path,’ and whether there was at that time (27th February 1794) a survey made upon the ground, in the name of John Hartman, and this fact was known to Philip Myer, and whether the Philip Myer was located and surveyed upon the land described in the warrant, are questions of fact for the jury.”
    4. “ If the jury believe that the Philip Myer warrant was located by the lines of older surveys marked upon the ground, as testified to by Lewis and Rockafellow, it must remain where it was put, and cannot be shifted or changed from its location by arbitrary or inconsistent calls in the return of survey.”
    “ This point affirmed.”
    The following are points of defendants, with their answers: — ■
    1. “ The call in the Philip Myer warrant for ‘ land surveyed on a warrant granted to John Hartman,’ cannot be filled by the survey of August 21st 1793, to John Hartman, under a warrant, of August 5th 1793, later than the date of the Myer warrant.”
    Answer: “ The call in the Philip Myer warrant for the survey in the name of John Hartman, was a call for a survey whose lines were actually run and marked upon the ground at that date (27th February 1793). If there was no such survey then marked upon the ground, the call for the John Hartman is not a valid call, and the warrant to Philip Myer not such a descriptive w'arrant as to make title from the date of the warrants. If the John Hartman tract was surveyed and marked upon the ground on or before the 27th February 1793, although the survey by the deputy-surveyor purports to have been made on the 21st August 1793, and Philip Myer knew the fact that the John Hartman was then (27th February 1793) actually surveyed and marked upon the ground, the call in Philip Myer warrant for the John Hartman was a valid call.
    “ The presumption is, that the survey for the John Hartman was made on the 21st August 1793, as returned by the deputy-surveyor ; but if there are marks on the ground which satisfy you that the survey was made prior to that date, and old enough to answer as a call for warrant of 27th February 1793, it would be a valid call. The question is one of fact for you. If the Hartman is not a valid call, the defendants are entitled to recover.
    7. “ In order to make title under a descriptive warrant, it is necessary that a survey upon it should be made upon the ground, within a reasonable time; and as the Philip Myer survey was never made upon the ground, but is chamber work, the'title of the plaintiff under the Myer warrant to the land claimed-in this suit is void as against that of the defendants, under the Shomos, Thiell, Silly- . man and Grok surveys, and their verdict must be for the defendants.”
    Answer: “ This point calls upon us to pronounce the title of the Philip Myer void as against the title of the defendants. If the Philip Myer has no marks upon the ground from which its location and position can be determined, then we affirm this point; but in determining this, you must take all the evidence which relates to this survey. It is admitted that the Philip Myer is one of a block of thirteen surveys which were located from calls to adjoin older blocks of survey on the south, and a series of older surveys on the north and east, well marked upon the ground. The Philip Myer (in question) is one of the leading surveys of this block of thirteen, perhaps the leading survey. If there is a leading warrant, you begin to locate this block by locating the leading warrant and the survey upon, it, fixing that by its boundaries; the rest would be located by the first in consecutive order, the second bounding on the first, with its proper courses and distances, unless excluded by an actual line on the ground made for that tract, or adopted for it by the deputy-surveyor as the line of an older survey actually located upon .the ground, and so on until the whole block is located.
    “Now the block of which the land in question is one, calls for the old Yarnells and Kunkels on the north and east, and for the block of which the Shomo (defendants’ land) is one, on the south. If these calls of the younger block for the older are not a mistake, the younger block must be located with reference to them; or, if it cannot be located so as to answer all, then to answer as. many as possible of the calls, and ignore as few as possible. If this younger block is located in this way, though it may be chamber work, it is not such a chamber survey as is made void as against younger surveys upon the same land, surveyed and returned within twenty-one years from the date of the first survey, for the reason that a call for an older survey by the younger is a call for the lines of the older survey to be a line for the younger, and it is not necessary for the surveyor to re-mark the lines; the lines of the older become the line of the younger upon the side to which the younger is called to adjoin. Now, upon this rule, to locate this block of thirteen surveys, the calls for older surveys, upon any part of the block, is a call for each tract, so far as it may go to locate the tract, and to give it the character of a good survey; and hence, as the block of thirteen surveys, of which the Philip Myer is one, calls to adjoin older surveys on the south, east and north, all the tracts of that block may be located by older surveys, and the survey is good, although the surveys may have been made by protraction, and not by actual marks made for these individual tracts.”
    8. “ As the south line of the block of thirteen tracts, of which the Philip Myer is one, calls for, and adopts precisely, the northern line of the block of fourteen owned by the defendants, and as no lines of the junior block are found upon the ground to carry it beyond its calls, there can be no interference between the two blocks, and their verdict must be for the defendants.”
    Answer: “ This affirmed, unless you should find this call upon the south was a mistake. The old surveys on the north were well marked upon the ground. The location of this tract of thirteen began with the Philip Myer, and then John Kunkel, or vice versa, and then Mary Kunkel and Killian May. Philip Myer and John Kunkel are returned as surveyed on the 19th May 1794. The Mary Kunkel, Killian May and Robert Kinnear were returned as surveyed on 20th May 1794. The Philip Myer does not call for the Shomo upon the south, but vacant on the south and west. The.Myer calls for Christina Levenburg on the east. Christina Levenburg was returned as located on the 22d of May 1794, three days after the survey of Philip Myer. Yet the Levenburg calls for Myer, and the Myer for Levenburg, and the Levenburg calls for John Shomo on the south, and so with -the southern tier of batch of thirteen, except the Philip Myer calls to adjoin the north line of the defendants’ batch of fourteen tracts. But the line between these blocks was not marked upon the ground, or no marks are now to be found. These blocks were located by Vanderslice, and if there was no enclosing line on the north of the batch of the •fourteen surveys marked upon the ground, then this line is to be ascertained by surveying and locating the blocks and drawing the line from the north-east to the north-west corners. This is the line then called for. But did Vanderslice know where this line would come ? If he did, he made a mistake somewhere else, for the distance between the older surveys on the north and west, and .the block of fourteen,on the south of the batch of thirteen, is not large enough to put the thirteen surveys in, and the question for you to find is, which are the reliable calls and which are the mistaken calls, and locate this batch according to the valid calls, as explained before.

      “ Another point is the calls of the Philip Myer and others of the batch as to the waters and other natural monuments. The Myer calls to be on a branch of the Schuylkill. If it is thrown over to adjoin the Shomo, it would extend over the mountain upon Deep creek, which empties into the Susquehanna. The return of the deputy-surveyor does not always have the water correctly laid down, even when the survey was made upon the ground; but when the survey was made by protraction, the waters are not so reliable a guide as to the correct location of the waters laid down upon plot, as returned into the land office by the deputy-surveyor. But the survey calls for the Schuylkill; and as that is a natural monument, it is to be taken into consideration in ascertaining the true locality of the survey.”
    11. “ The proper way to locate the block of thirteen tracts, of ■which the Philip Myer is one, is first to run out the lines of the two older blocks, for which it calls, and, if there is not sufficient vacancy to contain the thirteen tracts, those of the thirteen first surveyed will be entitled to the vacant land, to the exclusion of the later ones; but, in no event, can any of the younger block exclude any of either of the older blocks; and therefore, the verdict of the jury must be for the defendants.”
    Answer : “ The law is properly stated in this point, and we affirm it; but decline to direct the verdict in favor of the defendants.”
    The verdict was for the plaintiff for fifteen-sixteenths of the land described in the writ.
    The defendants took out a writ of error and assigned for error, amongst others, the answers to the foregoing points.

      F. JB. Growen (with whom was Gr. JDeJB. IGeim), for plaintiffs in error.
    As to the 8th and 11th points. The location of the block of the thirteen surveys was the younger, and must be controlled by the block of sixteen the older, and no mistake in the younger could change it; Hagerty v. Mathers, 7 Casey 357, s. c. 1 Wright 66. The question is as to the location of the older survey : Bellas v. Cleaver, 4 Wright 267; Carbon Iron Co. v. Rockafeller, 1 Casey 55; Boynton v. Urian, 5 P. F. Smith 142. Junior surveys cannot be extended against the intention of their surveyor: Malone v. Sallada, 12 Wright 419; Robeson v. Gibbons, 2 Rawle 48. If the surveyor makes an older survey a call for a younger, he asserts that there is no interference : Harper v. Mechanics’ Bank, 7 W. & S. 211; Porter v. Ferguson, 3 Yeates 60. The location is to be made where there are several warrants from the one which has known boundaries: Fox v. Lyon, 9 Casey 479; Gratz v. Hoover, 4 Harris 239.
    As to the 7th point, they cited Fugate v. Cox, 4 S. & R. 293; Morris v. Travis, 7 Id. 22; Sergeant’s Land Law 117 and cases cited. An actual survey is necessary on a descriptive warrant to give title from its date: Hunter v. Meason, 4 Yeates 108. The survey must be made with due diligence : Lauman v. Thomas, 4 Binn. 58 ; Lilly v. Paschal, 2 S. & R. 396 ; Starr v. Bradford, 2 Penna. R. 384; Strauch v. Shoemaker, 1 W. & S. 173; Chambers v. Mifflin, 1 Penna. R. 74; Addleman v. Masterson, Id. 454; Emery v. Spencer, 11 Harris 271; McGowan v. Ahl, 3 P. F. Smith 89; Kirkpatrick v. Vanhorn, 8 Casey 137. As to whether the call in the Myer warrant of February 1793 for the John Hartman warrant can be filled by a warrant of August 1793. The eificacy of a warrant must depend on its words: Galbraith v. Mauss, 2 Yeates 244; De Haas v. De Haas, Id. 317; Ormsby v. Ihmsen, 10 Casey 473; Carmalt v. Post, 8 Watts 411. After twenty-one years the* return of is conclusively presumed to be regular: Nieman v. Ward, 1 W. & S. 79; Mock v. Astley, 13 S. & R. 382; Caul v. Spring, 2 Watts 390; Lamborn v. Hartsvich, 13 S. & R. 113; Bellas v. Levan, 4 Watts 300 ; Schable v. Doughty, 3 Barr 395.

      F. W. Hughes (with whom was T. B. Bannan), for defendant in error.
    When the lines are not run and marked on the ground and there are no other circumstances equally decisive, calls for adjoiners and other fixed boundaries govern the calls for courses and distances when there is a discrepancy between them, for the reason that it is easier to be mistaken in a measurement, than it is in a boundary: Brolasky v. McClain, 11 P. F. Smith 163; Mackentile v. Savoy, 17 S. & R. 104; Murphy v. Campbell, 4 Barr 485; Cox v. Couch, 8 Id. 147; Petts v. Gaw, 3 Harris 218; Mathers v. Hegarty, 1 Wright 64; Speakman v. Forepaugh, 8 Id. 372. The lines actually marked on the ground constitute the survey and control the distances, even where the draft of the survey calls for natural or other fixed boundaries: Mageehan v. Adams, 2 Binn. 109; Walker v. Smith, 2 Barr 43; Thomas v. Mowrer, 3 Harris 139; Younkin v. Cowan, 10 Casey 200 ; Quinn v. Heart, 7 Wright 341.
    The lines of older surveys marked upon the ground and adopted by the surveyor are of the same validity as the lines of the younger survey and become its lines: Eister v. Paul, 4 P. F. Smith 198; Parshall v. Jones, 5 Id. 153.
    They may be adopted and returned for the new survey with the same effect as if the survey had traced them on the ground; McRhea v. Plummer, 1 Binn. 227; Caul v. Spring, 2 Watts 390; Dreer v. Carskadden, 12 Wright 38.
   The opinion of the court was delivered, May 17th 1873, by

Agnew, J.

John Green, the plaintiff below claimed title under a warrant in the name of' Philip Myer, one of a block of thirteen surveys made by Henry Yanderslice, deputy-surveyor, on the 18th to the 25th of May 1794. The Myer survey as claimed to be located, embraces parts of two surveys claimed by the defendants contained in a block of fourteen surveys made by Henry Yanderslice, deputy-surveyor, on the 11th to the 18th of February 1794 ; and also parts of two surveys claimed by the defendants, made by William Wheeler, deputy-surveyor, on the 22d of January 1794. Neither the Myer survey, nor the four surveys claimed by the defendants, can be located by marks on the ground, applicable to them individually, but in each case the location is ascertained by the places they occupy in their respective blocks. The block surveys, however, are readily ascertained and identified by original marks, and older surveys found on the ground on the north side of the block of thirteen surveys, and on the south side of the block of fourteen surveys. As thus ascertained there is not room between the older surveys for the whole number of surveys in each block. In this state of the case that portion of the block of thirteen surveys, on its south side, which interferes with the northern portion of the block of fourteen surveys, must give way, the thirteen being younger in date than the fourteen. The instruction of the judge on this part of the case, given in answer to the 8th, 9th and 11th points of the defendants, was correct, except in the qualification of the answer to the 8th point, as to the supposed mistake in the call upon the south side of the block of thirteen surveys. The qualification was in effect contradictory; for the block of thirteen surveys being younger than the block' of fourteen surveys, no mistake in the call of the former could affect the location of the latter. An older survey cannot be changed or contradicted by the lines of a junior survey. The calls of the latter, whether mistaken or true, do not limit the lines of the former: Carbon Run Improvement Company v. Rockafeller, 1 Casey 49; Bellas v. Cleaver, 4 Wright 260. In affirming the defendants’ 11th point the court correctly informed the jury, that the proper way to locate the block of thirteen was first to run out the older' blocks for which it called, and if there was not a sufficient vacancy left to contain the whole thirteen, those of the thirteen first surveyed would be entitled to the vacant land, but in no event could any of the younger block' exclude any of the older block. The fact that the Philip Myer survey called for vacant land on the south and west, or that the call of the block of thirteen for the surveys in the block of fourteen was owing to a mistake in some way by Yauderslice, the deputy-surveyor, could not affect the older block of fourteen, or carry the Myer survey within its lines.

The call of Philip Myer for vacant land south and west makes it probable the surveyor thought it extended westward past the block of fourteen, as shown in a connected draft of three blocks (these two and the block on the north of both), but this would not justify an interference with the older surveys. The defendants were therefore entitled to an unqualified instruction that the block of fourteen surveys being previously located, none of the surveys in the younger block of thirteen could interfere with any of the former, and no mistake of the surveyor in locating, or in the calls of the thirteen, could affect the surveys in the Mock of fourteen.

In this attitude of the case the plaintiff was driven to another position. He claimed that the warrant of Philip Myer was precisely descriptive of the land in controversy, and on this ground, if found in its proper location, it ante-dated the defendants’ title, even though the location fell within the block of fourteen. This raises the question as to the description in the Myers warrant. Descriptive warrants are of two kinds, those which are precisely descriptive, and those which are only vaguely or loosely descriptive. The former are such as so clearly describe the land that it can be readily identified and the warrant applied. These take ■ title from their date, the subject of the purchase being defined with sufficient certainty at the time of the application.. On the other hand, a vague or loose description only ascertains propinquity, and the land must still be defined by a survey in order to identify the subject of the purchase, and render it certain. In the latter case the title takes date only from the time of survey: Hubley v. Van Horne, 7 S. & R. 185; Norris v. Monen, 3 Watts 469; Patterson v. Ross, 10 Harris 340. In Patterson v. Ross, the warrant was for four hundred acres of land north and west of the rivers Ohio and Allegheny and Conewango creek, on the west bank of Big Beaver creek, and to include the walnut bottom •lying on the run that falls into said creek nearly opposite an island between the big and little falls, by estimation one mile above the block-house. The evidence on the ground readily identified the big and little falls, the island, the site of the blockhouse, and the run falling into the creek on the west side nearly opposite the island; but the identity of the walnut bottom lying on the run was not clearly ascertained, the bottom along the run being large enough to admit of several tracts of 400 acres. It was held that the warrant was not precisely descriptive, and the title took date only from the time of the survey. In regard to that particular description I think the idea of vagueness was carried to an extreme, and that probably that part of the description which required the tract to be on the west bank of the creek was not given its full force. But this does not change the principle on which the case was decided, that a vague or loose description gives title only from the survey, nor does it lessen the force of the illustration the case affords, in determining what is a vague description.

The description contained in the Philip Myer warrant, is as follows : “ 400 acres of land on a branch of Big Schuylkill, called Big Run,’ adjoining lands surveyed on a warrant granted to John Hartman, down the said creek, one mile, near the Tory path, in Berks county.”

Excepting so much of this description as locates the tract “adjoining lands surveyed on a warrant granted'to John Hartman,” the entire description is very loose and vague. No land is precisely ascertained by its being on Big Run. It is not said on what side of the run it lies, or whether across it. Nor is it said how near or on what side of the Tory path it lies. “ Down the creek one mile,” must mean, if it means anything, one mile down the creek from the survey of John Hartman; otherwise, the fact of adjoining that survey would be in itself a vague description, for it is not said on what side of the Hartman survey the Myer land is to lie. The Hartman survey is therefore the key to the description. In Fox v. Lyon, 9 Casey 479, it was held that a warrant to John Fox, for land adjoining a survey in the name of Mordecai Massey, on the north, and land of Fowler & Co., surveyed to adjoin Mordecai Massey on the north, but lying 150 perches from the Fowler & Co. lands, was a shifted location. So in De Haas v. De Haas, 2 Yeates 317, a survey including a path, and a chief part of the land lying westward of it, was viewed as deviating from the call in the warrant, which was for land adjoining the path from Mahoning to Muncy creek, eastward of the said path, &c.” It is evident, therefore, that the description in the Myer warrant depends for its precision wholly on that which calls for its “ adjoining lands surveyed on a warrant granted to John Hartman.”

Without that, “ down the creek one mile” is meaningless, and the Big Run and the Tory path afford no evidence of precise locality. It will be noticed that the call is not for a survey merely, which might send the inquirer in the land office, to the ground, to search for such a monument; but it is for land surveyed on a warrant granted to John Hartman. This description sends the inquirer directly to the files of the land office, and they discover no trace of such a warrant and survey existing at the date of the Philip Myer warrant on the 27th of February 1793. The only warrant to be found in the office, according to the evidence, in the name of John Hartman, bears date afterwards on the 3d of August 1793, and the survey under it was made on the 21st of August 1793. It is very clear, therefore, that this portion of the description in the Myer warrant was notice of nothing, to those who desired to take up lands in this vicinity, and was void for uncertainty. When an applicant for land is informed of an office right and survey under it, he has the means at once, by resorting to the files of the office, of ascertaining its location, and thus of avoiding an interference with it, in making his own survey. This is all important to him, for the state does not guaranty against loss, where a junior warrant-holder surveys in land appropriated to an older warrant. Hence, when no search he can make will lead to information, it is clear he cannot have legal notice of the former appropriation, by such a false description. In such a case he must suffer, who, by his false description, leads away from notice. Nor is the fact that a survey is mentioned to be disconnected from the statement that it was made on a warrant. A survey without warrant is void, since the proprietary government and customs have ceased to exist, excepting surveys allowed to actual settlers under the Act of 3d April 1792. Under the Penns surveys were sometimes made without a precept, and the custom to receive them has been permitted to be proved: Woods v. Galbreath, 2 Yeates 306. But since the divesting Act of 27th November 1779, the practice has not been allowed: Barton v. Smith, 1 Rawle 403.

The importance of notice of pre-existing rights to those who take up lands from the Commonwealth, cannot be overrated, and is strongly set forth by Judge Rogers, in Roland v. Long, 1 Harris 464, and by Judge Woodward, in Emery v. Spencer, 11 Harris 271. Judge Rogers said, that an applicant is not bound to look beyond the land-office, and although a warrant may be issued and survey paid, yet if there be no return of survey in the office, the title under the junior warrant will be good. This is not to be taken in an unqualified sense, yet it is evidence of the importance attached to the records of the land-office. Any one, therefore, reading the description in the Philip Myer warrant, and then finding in the land-office no such warrant as that of John Hartman referred to in it, would not be bound to look further; for there is no other place than the land-office where such warrants are legally to be found. And knowing that a survey without a warrant'is void he would not be led to believe that such a survey could be meant, when the description asserts that it was made on a warrant. The result is, that the description in the Philip Myer warrant, that the tract adjoined lands surveyed on a warrant, to John Hartman, is nugatory, and gives the warrant no precedence over junior claimants, and the remainder of the description being vague and uncertain, the title under the warrant takes date from the time of survey. This disposes of the case, and renders it unnecessary to pass upon the other assignments of error. The question becomes one of location merely; and if, as the evidence appears to show, the block surveys are identified by marks on the ground clearly indicating their location, the block of thirteen, being younger than the block of fourteen, must give way to the latter, and the Philip Myer warrant, not being precisely descriptive, must give way so far as it interferes with any of the surveys of the block of fourteen.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Read, C. J.

license: Public Domain

text:
    Brown versus The Commonwealth.
    1. The Criminal Court of Dauphin, Lebanon and Schuylkill counties, created by the Act of April 18th 1867, is constitutional, and it has, under Act of April 21st 1870, concurrent jurisdiction with Courts of Oyer and Terminer, &e., of Schuylkill county.
    2. On the hearing before a justice of the peace of a prisoner charged with murder, the testimony of a witness for the Commonwealth was taken in writing. The witness having died, the notes of his testimony were admissible on the trial.
    3. A man was found dead in a road about three hundred yards from his house with marks of violence. His wife was found in the house the same day with wounds of which she afterwards died, and there were marks about the house showing that it had been robbed. Held, that the dying declarations of the wife were not evidence for the Commonwealth on the trial for the murder of the husband.
    4. The.sheriff and jury commissioners, after selecting names- for jurors, placed them in the wheel, which was sealed with but one seal. Held, that the array of jurors drawn from the wheel should have been set aside and the indictment found by the grand jury quashed.
    March 7th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius. -
    Error to the Criminal Court of Schuylkill county: No. 78, to January Term 1873.
    * At April Term 1872 of the court below, the grand jury found a true bill against Joseph Brown for the murder of Daniel S. Kraemer.
    On the 27th of May 1872, he challenged the array of jurors, “ for the reason that the sheriff and jury commissioners of Schuylkill county, at the time of the selecting and placing in the wheel the names of jurors, did not secure the jury-wheel in the manner required by law, they having failed to secure the said wheel by sealing the same with their respective seals, the said wheel being sealed with only one seal, if any.”
    On the same day the prisoner moved to quash the indictment, for the same reason as that given for challenging the array.
    The court (Green, P. J.) heard the testimony of the jury commissioners and the sheriff on the challenge and the motion to quash.
    The evidence was that after the wheel was filled it was locked and placed in a box, which was also locked with a padlock, tape drawn across the lid of the box, tied and sealed; there was but one seal put on the box, that was the private seal of one of the jury commissioners; both jury commissioners were present when the box was locked and sealed ; the sheriff was not present; the key was obtained from him and returned to him; the box had always been kept in that way, and had always been found by the jury commissioners intact and where they left it.
    On the 28th of May the court sustained the challenge and ordered the sheriff and jury commissioners to take all the names of jurors from the wheel, and deposit new names, &c.
    On the 29th of May the court revoked the foregoing order, “no action having been taken as yet by the said sheriff and jury commissioners in the premises.”
    On the 27th of August the court overruled the motion to quash the indictment.
    At the request of the prisoner, the court sealed bills of exception.
    The prisoner was indicted at the same time for the murder of Annetta Kraemer, the wife of Daniel S. Kraemer.
    The prisoner pleaded to the jurisdiction of the court, alleging that the Act of April 18th 1867, establishing the Criminal Courts of Dauphin, Lebanon and Schuylkill, and its supplement of April 21st 1870, were unconstitutional.' The court overruled the plea.
    The indictment was tried August 27th 1872.
    The evidence was that the deceased was found on the 26th of February 1872, in a lane about three hundred yards from his house, and that the wife shortly before, on the same day, was found on her bed in the house, with her head beaten badly; she died from the injuries on the 4th of March. The husband was about sixty years old, and the wife about fifty.
    Daniel M. Kraemer, a son of the deceased, not living at home, ’testified that his father was alive on Sunday, the 25th of February. He went to the house on Monday morning before 7 o’clock, and in a back room found his mother lying on her bed insensible; he found blood around the front room ; she was covered with blood so that her face could not be seen; she had her day clothes on; he then went out and found his father lying on his back in the road; there was blood on his face and in the road; he, with some neighbors, then returned to the house, they found a chest and desk in the front room broken open.
    Other witnesses testified to similar circumstances, and also to the bruised and wounded condition of Mrs. Kraemer; also, that they found coin in a secret drawer which was unopened, of'the chest and also in the bottom of an old-fashioned clock.
    There was a large amount of evidence tending to connect the prisoner with the murders.
    Sophia Fehr, a sister of Mrs. Kraemer, testified that she came to the house on Monday morning and found Mrs. Kraemer lying on the bed, bloody and bruised; she was then conscious. The witness testified much in detail as to the condition of her sister and also as to there having been money in the house.
    The Commonwealth having examined a great number of witnesses and having shown that one Isaac Hummel had been arrested with the prisoner upon suspicion of being connected with the murder, called B. B. McCool, Esq., a member of the Schuylkill county bar, who testified:—
    “ I was present at the examination of Charles Ewing before ’Squire Reed in this court-house. ’Squire Reed is a justice of the peace in the borough of Pottsville. Charles Ewing is dead. He was killed on the 14th day of April last on Market street, in the borough of Pottsville. Joseph Brown was present at that hearing and represented by counsel. There were two members of the bar, Messrs. Farquhar and Strouse, there. They represented Brown and Hummel. It was on a preliminary hearing before the committing magistrate. I took notes of the testimony as given by Charles Ewing; (notes shown witness) these are the notes. These notes are correct of Charles Ewing’s testimony. Mr. Ewing was very much excited and embarrassed, and not very coherent. I took down nearly every word he said, and the order in which he said it, and I think in his language. I will say that I think the notes contain the exact words of the witness. In taking the notes I made the question and answer to conform to the exact words of' the attorney and witness. I had not time to write down the questions, but took questions and answers together. I was not acting as counsel, but as clerk for the district attorney, at his request. I am now counsel in the case, retained for the Commonwealth. I think'my notes contain the exact words of the witness.”
    The Commonwealth then offered to read the testimony of Ewing, from the notes of Mr. McCook The offer was objected to by the defendant, admitted by the court, and a bill of exceptions sealed.
    The Commonwealth recalled Sophia Eehr, and proposed to examine her as to dying declarations of Mrs. Kraemer on Monday and Tuesday, upon the subject of the murder of her husband.
    The defendant objected, amongst other things, that the dying declarations of Mrs. Kraemer, as a part of the res gestee, or surrounding circumstances, proposed to be offered, on Monday following, are inadmissible, because not accompanying the transactions, not concomitant with the murder of Daniel S. Kraemer, on Sunday evening, preceding, but are mere hearsay evidence, not made in the presence of the prisoner; and they are irrelevant in this issue as to the murder of Daniel S. Kraemer.
    The court admitted the offer and sealed a bill of exceptions.
    The Commonwealth then gave in evidence the declarations of Mrs. Kraemer tending to connect the prisoner with the murder.
    In the course of the trial a number of exceptions were taken to the rulings of the court on questions of evidence, and also to the charge of the court; none of which were considered by the Supreme Court.
    The jury found the prisoner guilty of murder in the first degree. A motion for a new trial was made; it was overruled; and on the 7th of October 1872, the prisoner was sentenced to be hanged.
    The prisoner sued out a writ of error.
    He assigned for error that the court erred—
    1. In not quashing the indictment, because the grand jury was drawn from a wheel not secured according to law.
    2. In revoking the order directing the sheriff and jury commissioners to make a new selection of jurors, &c.
    3. In overruling the motion to quash the array of petit jurors.
    4. In overruling defendant’s plea to the jurisdiction of the court.
    5. In admitting the notes of the testimony of Charles Ewing, a deceased witness, before the committing magistrate to be read in evidence.
    14. In admitting evidence of the dying declarations of Annetta Kraemer, the wife of deceased.

      Gr. B. Kaereher, F. Gr. Farquhar, and B. W. Cummings, for plaintiff in error.

      J. B. Reilly, District Attorney, and L. Bartholomew (with whom was B. B. McGoot), for the Commonwealth.
   The opinion of the court was delivered, April 5th 1873, by

Read, C. J.

This is a writ of error to the Criminal Court of Schuylkill county, sued out under the Act of the 15th February 1870, upon the oath of the defendant, and brings, up the whole record.

The constitutionality and jurisdiction of this court have been finally settled in Commonwealth v. Green, 8 P. F. Smith 226, and in Commonwealth v. Hipple, 19 Id. 9, and its concurrent jurisdiction with the Courts of Quarter Sessions of the Peace and Oyer and Terminer and General Jail Delivery of the County of Schuylkill, is fully recognised and established by the Act of 22d April 1870 (Pamph. L. 1254), and the court below were therefore right in overruling the plea to the jurisdiction, entered by the defendant.

On the preliminary hearing before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant’s counsel,' and the witness having died before the trial, the notes of his evidence proved by the counsel under oath, were offered in evidence, objected to and admitted. It was objected that by the Constitution of the state, the defendant was entitled to meet the witnesses face to face.

The doctrine on this subject is thus laid down in the 3d volume of Russell on Crimes, by Greaves, 4th edition, 1865, page 249. “ If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness, given upon oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give evidence,” and the same is repeated at page 424, in the note. We find the same rule in 1 Phillips & Arnold’s Evidence, pp. 306-7, and in 1 Pitt Taylor on Evidence, 4th edition, 1864, pp. 445 447. Dr. Wharton, in his valuable Treatise on Criminal Law in the United States, vol. 1, p. 667, says: “ The testimony of a deceased witness given at a former trial or examination, may be proved at a subsequent trial by persons who heard him testify. Even the notes of counsel of the testimony of such witness on a former trial between the same parties, touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel does not recollect the testimony independently of his notes. The better opinion seems to be that it is sufficient to prove the substance of what the deceased witness said, provided the material particulars are stated, though it has been sometimes held, that unless the precise words could be given, the testimony would be rejected.”

In The Commonwealth v. Richards, 18 Pick. 434, it was held that the 12th article of the Declaration of Rights, which provides that in criminal cases the accused shall have the right “ to meet the witnesses against him face to face,” is not violated by t]ie admission of testimony in a criminal trial before a jury to prove what a deceased witness testified at the preliminary examination of the accused before a justice of the peace.”

This case was affirmed seven years afterwards in Warren v. Nichols, in 6 Metc. 261, and the further ruling in that case “ that the whole of the testimony of the deceased witness upon the point in question, and the precise loords used by him must be proved,” was substantially affirmed. Hubbard, Justice, dissented from this ruling and assigned very cogent reasons against it. £( As the decision now stands,” says this able judge, “it prescribes a rule for the admission of testimony, which the imperfection of our nature, in the construction of our memories, will not warrant. It in truth excludes the thing it proposes to admit, and at the same time opens a door for knaves to enter, where honest men cannot approach.” “ Other learned judges have maintaned, that a rule so rigid was unwise, and I confess, I prefer the reasoning of Gibson, J., in the ease of Cornell v. Green, 10 S. & R. 16, to that of the learned judge in Commonwealth v. Richards, and with him agrees also the learned author of the Treatise on the Law of Evidence.” 1 Greenl. § 165.

Upon this subject the ablest discussion of the whole question is to be found in the opinion of Judge Drummond, in The United States v. Macomb, 5 McLane’s Rep. 286, delivered in the Circuit Court of the United States for the District of Illinois, at July Term 1851. At the preliminary examination, a witness, since deceased, testified in relation to the offence, which was robbing the mail. The accused was present and his counsel cross-examined the witness. Witnesses were permitted on a trial before a jury, under an indictment found for the same offence, to prove what the deceased witness testified to at the preliminary examination. It is sufficient in such case to prove substantially, all that the deceased witness testified upon the particular subject of inquiry. A decision upon the same point is to be found in United States v. White, 5 Cranch’s Circuit Court Rep. 460.

The 6th article of the amendments to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right “ to be confronted with the witnesses against him.”

The Constitution of Pennsylvania of 1776, provided “that in all prosecutions for criminal offences, a man hath a right to be confronted with the witnesses.” The Declaration of Rights, in the Constitution of 1790, changed the phraseology from confronting, to “to meet the witnesses face to face.”

The doctrine enunciated by Judge Drummond in 1851, was followed by the Supreme Court of Missouri, after a very exhaustive argument on the constitutional question, in The State v. McO’Blenis, in 24 Missouri (3 Jones) 402, and The State v. Baker, Id. 437, in 1857, and in The State v. Houser, 26 Missouri (5 Jones 431), in 1858, and by the Supreme Court of Ohio in Summons v. The State, in 5 Ohio (N. S.) 325, in 1856.

In this state the most liberal rule has been adopted, in relation to the evidence of what was testified to by a deceased witness on a former trial or examination, as will be seen by referring to Cornell v. Green, 10 S. & R. 14; Chess v. Chess, 17 Id. 409; Moore v. Pearson, 6 W. & S. 50, and Rhine v. Robinson, 3 Casey 30, in which case Chief Justice Lewis said“The notes of counsel, showing what a deceased witness testified to on a former trial between the same parties touching the same subject-matter, are evidence when proved to be correct in substance, although the counsel did not recollect the testimony independent of his notes, and although he did not recollect the cross-examination.” To which may be added the decision in Phila. & Reading R. R. v. Spearen, 11 Wright 306, the opinion being delivered by my brother Agnew.

There was, therefore, no error in the court admitting the notes of Mr. McCool of the testimony of Ewing, a deceased witness, in the examination before the committing magistrate, or the notes of any other counsel, or those of the committing magistrate himself.

“ Upon the trial of any indictment for murder, or voluntary manslaughter, it shall and may be lawful for the defendant or defendants to except to any decision of the court, upon any point of evidence or law, which exception shall be noted by the court, and filed of record as in civil cases, and a writ of error to the Supreme Court may be taken by the defendant or defendants after conviction and sentence.” “If, during the trial upon any indictment for murder or voluntary manslaughter, the court shall be required by the defendant or defendants to give an opinion upon any point submitted and stated in writing, it shall be the duty of the court to answer the same fully and file the point and answer, with the records of the case:” Criminal Procedure Act of 31st March 1860, §§ 57, 58, Pamph. L. 444.

Under this head is ranged the reception under objection of the dying declarations of Mrs. Kraemer, the wife of the murdered man. “ The dying declarations of a person who expects to die, respecting the circumstances under which he received a mortal injury, are constantly admitted in criminal prosecutions, where the death is the subject of criminal inquiry, though the prosecution be for manslaughter; though the accused was not present when they were made, and had no opportunity for cross-examination, and against or in favor of the party charged with the death.”- “ When every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and awful is considered by the law as creating the most impressive of sanctions.” 1 Wharton’s Criminal Law, § 669; 3 Russell by Greaves 250; 1 Greenleaf, §§ 156, 162, 346; 1 Taylor on Evidence 616.

‘^The contitutional provision,” says Dr. Wharton, “that the accused shall be confronted by the witnesses against him does not abrogate the common law principle, that the declarations in extremis of the murdered person in such cases are admissible in evidenceId.

•In Woodsides v. The State, 2 Howard (Miss.) 655, the court, at p. 665, in answer to the constitutional objection that the prisoner had a right to be confronted with the witness against him, say: “But it is upon the ground alone, that the murdered individual is not a witness, that his declarations made in extremis can be offered in evidence upon the trial of the accused. If he were or could be a witness, his declaration upon the clearest principle would be inadmissible. His declarations are regarded as facts or circumstances connected with the murder, which, when they are established by oral testimony, the law has declared to be evidence. It is the individual who swears to the statements of the deceased that is the witness, not the deceased.” In Anthony v. The State of Tennessee, 1 Meigs 277, the court say, upon the first ground of objection, “ We are all of opinion that the Bill of Rights cannot be construed to prevent declarations properly made in articulo mortis from being given in evidence against defendants in cases of homicide.”

The same doctrine is to be found in The State of Iowa v. Nash, 7 Iowa 347, and in Robbins v. State of Ohio, 8 Ohio St. R. (N. S.) 131; Com. v. Casey, 11 Cushing 417, and very directly in Com. v. Carey, 12 Id. 246. There are also various statements to the same effect in most of the decisions cited above in relation to the admission of evidence of the testimony of a deceased witness.

All these cases are confined to the dying declarations of the murdered person upon the trial of the individual accused of the murder. At the York assizes on the 17th July 1837, in Rex v. Baker, 2 Moo. & Rob. 53, it was held, on an indictment against a prisoner for the murder of A. by poison, which was also taken by B., who died in consequence, that B.’s dying declarations were admissible. Coliman, J., after consulting Parke, B., expressed himself of opinion that as it was all one transaction, the declarations were admissible, and accordingly allowed them to go to the jury, but he sajd he would reserve the point for the opinion of the judges. The prisoner was acquitted. This case is entitled to greater weight, as Baron Parke, the year before, in Stobart v. Dryden, 1 Mees. & Welsby 615, had been considering the question of dying declarations, after full argument, and delivered the opinion of the court. This case is mentioned in 1 Phillips and Arnold 243, in 3 Russell 268; 1 Taylor on Evidence 618.

In The State v. Terrell, 12 Richardson (S. C.) 321, it was held upon the trial of an indictment for the murder of A. by poison, which was taken at the same time by B. and C., both of whom as well as A. died from its effects, the dying declarations of B. are admissible against .the prisoner, although the general rule seems to be, that dying declarations are admissible only, where the indictment is for the murder of the party making the declarations. The murder was effected by putting strychnine in a bottle of whiskey, administered by the defendant, at the same time, to three persons, and caused the deaths of the grandfather and uncle of the prisoner, and of a third person, whose dying declarations were received in evidence upon the trial of the accused for the murder of his grandfather.

Upon the authority of these cases the learned judge admitted the dying declarations of the wife, upon the trial of the defendant for the murder of her husband. In this there was error, for the husband was found dead on Monday morning 26th Feb. 1872, three hundred yards from his dwelling, and his wife was discovered on the same morning lying across her bed in the house in an insensible condition and with her face and head terribly beaten and disfigured. Kraemer and his wife were both advanced in years and there was no doubt that robbery of gold and silver which was known to be in the house led to their murder, but we do not see any facts that would bring these dying declarations of Mrs. Kraemer within those two authorities, supposing them to be good law.

If the prisoner had been tried upon the indictment for the murder of Mrs. Kraemer, her dying declarations would have been strictly legal evidence against him.

The array of grand and petit jurors was challenged from their being drawn from a jury-wheel not secured according to law. By the existing law two jury commissioners are elected triennially, who are substituted for the county commissioners, and who with the law judges and the sheriff perform the duties prescribed by the 2d section of the Act of 10th April 1867 (Pamph. L. 62), who shall place the names of the persons so selected in the proper jury-wheel, and the said jury-wheel, locked as now required hy law, shall remain in the custody of the said jury commissioners and the keys thereof ' in the custody of the sheriff of the said county.”

The mode of drawing the jurors is prescribed by the 3d section, and the 4th section, after repeating certain acts, provides “ that all acts and parts of Acts of Assembly now in force in relation to the custody, sealing and unsealing, locking and opening of the jury-wheel of the respective county, and all Acts and parts of Acts of Assembly now in force imposing any penalty or punishment on the sheriff and county commissioners or either of them for anything done or omitted by them or either of them, in relation to the keeping, locking, opening, sealing or breaking the seal of any jury-wheel, or in relation to the selecting or drawing of jurors shall be taken, deemed and held to apply to the said jury commissioners and sheriff.” The duties of the sheriff and commissioners, now jury commissioners, are distinctly prescribed, as may be seen by reference to 1 Brightly’s Digest 830, 831.

The 16th paragraph, which is sect. 90 of the Act of 14th April 1834, expressly provides, “ as soon as the selection of jurors and the depositing of their names in the wheel as aforesaid shall be completed, the sheriff shall cause the same to be locked and secured by sealing-wax, and thereon the said sheriff and (jury) commissioners shall impress distinctly their respective seals.” It is the jury-wheel that is to be locked and sealed.

It is clear that only one seal was used, and that it was not sealed with the respective seals of the two jury commissioners and sheriff, making three seals. Of course this was error, and the array so challenged should have been set aside and the indictment for the murder of Kraemer should have been quashed. The same objection will apply to the indictment for the murder of Mrs. Kraemer. New bills therefore should be presented to a new grand jury. _

_ Strict attention should be paid to the execution of the jury law, so as to avoid these technical objections, which if not made at the time, are cured by the 53d section of the Criminal Procedure Act of 31st March 1860.

The judgment is reversed and the record remanded, with this opinion, setting forth the causes of reversal to the court below for further proceeding.


author: Sharswood, J.

text:
    Rigoney et ux. versus Neiman.
    1. In an action against husband and wife for necessaries furnished on the credit of the wife; the plaintiff in order to recover judgment need not prove that the husband has no property or is insolvent or refuses to support his family.
    2. To recover judgment against the husband, it is necessary only to prove that the debt was contracted by the wife for necessaries for the support of the family of the husband and wife.
    3. Book entries against husband and wife are not conclusive evidence of a joint contract by them; there being evidence that goods were purchased by the wife on her credit, the question whether any and how much were for necessaries for the family is for the jury.
    March 8th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error'to the Court of Common Pleas of Schuylhill county: No. 294, to January Term 1872.
    This was an action of assumpsit to June Term 1868 of the court below, brought by Herman Neiman against Peter Rigoney and Johanna Rigoney his wife.
    The plaintiff declared in two counts: The first was for $2CO “ for necessaries furnished by the plaintiff to the family of the defendant, at the special instance and request of the said Johanna.” The second for $200 “ for necessaries furnished by the said plaintiff, for the support and maintenance of the family of the said Johanna, wife of the said Peter, which said debt was contracted and incurred to and with the said plaintiff by the said Johanna, wife of the said Peter, and was incurred for articles necessary for the support of the family of the said Peter and Johanna Rigoney.”
    The case was tried before Ryon, P. J.
    The plaintiff testified that he kept a flour, provision and grocery store in St. Clair, Schuylkill county; he had dealings with Mrs. Rigoney in 1866; the dealings had commenced in 1865, the first entry in his book was March 8th 1865, the last August 14th 1866.
    Plis books, which were given in evidence, showed that from March 2d to March 11th 1865, the charges were to Johanna Rigoney; they were in several items: oil, potatoes, sugar, &c., and amounted in the whole to $8.22.
    On the 13th of March 1865, he opened an account in the name of “Peter and Johanna Rigoney.”
    This account was from that date until August 14th 1866, and contained a large number of items, of somewhat similar character.' The balance appearing to be due the plaintiff at the last date was $112.84. He further testified: “ These goods were ordered by Mrs. Rigoney; she is the wife of Peter Rigoney; she came to my store to get goods on credit; I gave her the goods; she then wanted a pass-book; she ordered the goods and I furnished them on her credit. Peter Rigoney has no property. * * * I don’t-know that Peter Rigoney worked any then ; he is a laborer; he kept a porter shop; they kept a few boarders; I don’t think Peter was at the head of the establishment; I think Mrs. Rigoney was; I did not know they- intended keeping boarders when the account was opened; I learned it right after the 8th of April. * * They had no family except an adopted daughter and the boarders.”
    On motion of the defendants the court entered a judgment of nonsuit.
    In delivering the opinion of the court, Judge Ryon said:—
    “ In order to change the policy of the law it is necessary for the plaintiff to bring himself within the exception of the Act of 1848, and prove that the articles were purchased by the wife or some one for her in her name, and that they were necessary for the support and maintenance of her family, and that her husband was insolvent or refused to support her and her family, or that he was living away from her and refused to support her. When the husband, as in this ease, was a laboring man and living with his family, and was able to support them, and was industrious, the wife’s purchases were as the agent of her husband, and the law will not raise any inferences that the husband did not supply sufficient means for a proper support of his family. In the case before us the evidence shows nothing more than a case of sale of goods in the ordinary way, and a charge to both husband and wife. If this is sufficient to charge the wife’s estate, it is difficult to imagine a state of facts where the wife’s separate estate might not be charged.”
    The plaintiff removed the record to the Supreme Court and assigned the entry of the judgment of nonsuit for error.

      L. Bartholomew and W. B. Smith, for plaintiff in error,
    referred to Married Woman’s Act of April 11th 1848, sect. 8, Pamph. L. 536, 1 Br. Purd. 1006, pl. 15.

      Cr- F. Farquhar and F. W- Hughes, for defendants in error,
    cited Heugh v. Jones, 8 Casey 432; Glyde v. Keister, Id. 85; Robinson v. Wallace, 3 Wright 129 ; Mohney v. Evans, 1 P. F. Smith 80; Parke v. Kleeber, 1 Wright 251.
   The opinion of the court was delivered, March 17th 1873, by

Sharswood, J.

Before the passage of the Act of April 11th 1848, Pamph. L. 536, the plaintiff would have had no case; not against the wife, for she could bind herself by no contract, nor against the husband, on account of the misjoinder of the wife. The husband could be made liable, only for necessaries sold to the wife upon her implied authority as his agent, in like manner as when she made contracts in the course of a business, carried on with his express or implied consent: Nutz v. Reutter, 1 Watts 229; Jacobs v. Featherstone, 6 W. & S. 346; Alexander v. Miller, 4 Harris 215; Williams v. Coward, 1 Grant 21. It is by the eighth section of that act, that suit is authorized against husband and wife for the price of necessaries for the support and maintenance of the family of any married woman, and the act provides that on a judgment in such action, the plaintiff shall have execution in the first instance against the husband alone, and if no property of the husband be found, an alias execution may issue, to be levied and satisfied out of the separate property of the wife. It is not necessary, in order to entitle the plaintiff to a judgment, that he should prove that the husband has no property, or is insolvent, or that he has refused to provide for his wife and family. He may have ample property, out of which the debt may be paid on the first execution. It is only necessary, before judgment can be rendered against the wife in such joint action, that it should be proved that the debt sued for was contracted by the wife, and. for necessaries for the support of the family of the husband and wife —the word “ or,” used in the act, having been construed to mean “and”: Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251. The book entries were not conclusive evidence of a joint contract by tbe husband and wife. There was evidence that the goods were purchased by the wife, and on her credit. The question, whether any, and if any, how much were necessaries for the family, was for the jury.

Judgment reversed, and venire facias de novo awarded.


text:
    McCue versus Ferguson.
    1. It is not competent in slander to prove by the opinion of the -witness, the averment that words spoken in the third person, were spoken of the plaintiff.
    2. When the words are spoken in the second person, to whom they were addressed of a number present is a question of fact, and if the.name of the person is not used it is necessarily dependent upon opinion.
    3. In slander the defendant put in a plea of justification and afterwards withdrew it; on a second trial he testified that he had not said that the words were true. The withdrawn plea of justification was not evidence in contradiction of his statement.

      4. Rangler v. Hummel, 1 Wright 130, affirmed and distinguished.
    March 11th 1873.
    Before Bead, C. J., Aqnew, Searswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: No. 258, to January Term 1873.
    This was an action of slander, brought August 9th 1869, by Ettie Ferguson against Bichard McCue; the words imputed want of chastity of plaintiff.
    The case was tried June 17th 1871, a verdict found for the plaintiff for §1700 and a new trial granted. ' It was again tried February 13th 1872; the defendant filed a plea of justification j the verdict was for the plaintiff for §2333, and a new trial again granted.
    The plaintiff, on the 28th of October, by leave of the court, withdrew the plea of justification and pleaded “not guilty.”
    The case was again tried October 29th 1872, before Harding, P. J.
    The plaintiff testified, that in June 1869, she was at the office of Alderman Jay in Scranton; the defendant came there to go bail for some persons. “ He said to me, ‘ You keep a damned (disreputable house), and it is damned easy to prove it,’ Mrs. Flynn and her daughter, Mrs. Mucklow, P. J. Collins and Norton Wolcott were present; so were my mother and myself. * * * McCue stopped, turned around on the step and looked me full in the face and made use of the words already stated.”
    On cross-examination she said that her mother had had Mrs. Flynn arrested, and she and her mother had gone to the alderman’s office to have them bound over. The plaintiff offered in evidence the plea of justification, which had been filed and withdrawn ; the court rejected the offer.
    Another witness testified: “McCue said to Ettie,” the same words which plaintiff testified to. The plaintiff having rested, the defendant testified, that he had addressed the words to Mrs. Ferguson and not to the plaintiff.
    On cross-examination he said, “ I never said this assertion about her was true in person; never said the words were true as to the plaintiff and her mother. I believe I said they kept the stock or the stock kept them.”
    The defendant proposed to ask Bridget Flynn, who was present when the words were spoken, to whom she thought the words were addressed. This was objected to by the plaintiff, on the ground that speaking the words was a fact, and while the time, place and manner of the speech were evidence, the opinion of the witness was not competent.
    The court rejected the offer and sealed a bill of exceptions.
    The plaintiff in rebuttal offered in evidence the plea of justification ; it was objected to by the defendant, admitted by the court and a bill of exceptions sealed.
    The defendant was recalled and on cross-examination plaintiff asked him if he had subpoenaed a number of witnesses to support the plea of justification. The defendant objected to the question, it was admitted, and a bill of exceptions sealed.
    The court, amongst other things, charged as set out in the third assignment of error as given below.
    The verdict was for the plaintiff for $1500.
    The defendant took out a writ of error, and assigned for error:
    1. Refusing to allow defendant to prove by bystanders to whom the words were addressed.
    2. Admitting in evidence the withdrawn plea of justification.
    3d. In charging the jury:—
    “ Whatever may be the rule elsewhere, in this country it is not competent for a witness to state to whom he understood the words charged in the declaration to apply. He can testify only to facts or declarations; his understanding of the intention of a party is not evidence; it is a matter resting entirely in his own mind, and cannot be disproved. In short, it is solely the province of the jury to draw such conclusions from the facts or declarations testified to, as they shall conscientiously believe to be warranted. In other words, twelve men, and not one, must determine who was meant.
    “ While it is conceded that such is the rule applicable to testimony sought to be introduced in aid of a plaintiff’s case, where the purpose is to support an innuendo by the opinion of a witness, still, it has been ably argued on the part of the defence that, as the injury alleged to have been inflicted depends entirely upon the understanding which the bystanders got as to the person meant when the words were spoken, therefore, the opinion of the bystanders upon this point, is not only material, but competent for the consideration of the jury. We must decline so to charge you.”

      H. W. Palmer (with whom were F. Q-unster and W. W. Ketoham), for plaintiff in error.

      Q. Smith (with whom was A. H. Winton), for defendant in error.
    —It was the province of the jury, not of the witness, to state facts: Rangler v. Hummel, 1 Wright 133; Van Vechten v. Hopkins, 5 Johns. R. 211; Murray v. Bethrons, 1 Wendell 196; Gibson v. Williams, 4 Id. 320; Beardsley v. Maynard, Id. 337; 2 Starkie on Evid. 261.
   The opinion of the court was delivered, March 17th 1873, by

Sharswood, J.

It was certainly settled in Rangier v. Hummel, 1 Wright 133, that in an action of slander it is not competent to prove the averment that the words were “ spoken of and concerning the plaintiff,” and thus aid the innuendo by the opinion of a witness that the defendant meant the plaintiff in the word used. The authorities relied upon were Van Vechten v. Hopkins, 5 Johns. 235; Gibson v. Williams, 4 Wend. 320; and Snell v. Snow, 13 Metcalf 278. Later cases are in conflict with these decisions : Miller v. Butler, 6 Cushing 71; McLaughlin v. Russell, 17 Ohio 475; Smawley v. Stark, 9 Ind. 388; Tompkins v. Weisse, 1 Sand. 458. We do not mean, however, to cast any doubt upon Rangler v. Hummel, but to adhere to and re-affirm it. We think that there is a plain distinction to be drawn between that and all the other cases cited and the one presented on this record. They were all cases of the slander of an absent person. The opinion of a witness could only be as to the meaning of the words used, of which, when all. the facts and circumstances were given in evidence, the jury would be as good judges as any witness. But when the words are in the second person, addressed to some one present, the question to whom addressed is a question of fact, necessarily dependent upon opinion more or less distinct. If the name of the person addressed is not used the bystanders can only have an opinion as to who was meant to be addressed, and this may depend upon many things in the voice, eyes, and gestures, of the utterer. Two witnesses for the plaintiff below testified that the words were addressed to her, but however positive was their testimony, it was after all, nothing but their opinion. It was not an opinion necessarily formed from the interpretation of the words used. The question should have been permitted to be put in the first instance, and if, upon the cross-examination, it had appeared that the opinion was grounded merely on the words used, the jury should then have been instructed to disregard it.

We think, also, that there was error in the admission, in evidence of the plea in justification. When offered originally, the learned judge was perfectly right in rejecting it — for having been withdrawn by leave of the court it was no longer any part of the record — it was as though it had never been entered. Nor did McCue say anything which opened the way for it in rebuttal. When he testified that he never said the assertion was true about the plaintiff, it could not be tortured to refer to the formal plea put in by his attorney. He might have been asked, whether he had ever instructed his counsel to plead in justification, and if he denied-it, perhaps it might have been contradicted by evidence of ■ such instruction. But the plea itself was inadmissible to prove any such instruction.

Judgment reversed and venire facias de novo awarded.


author: Asnew, J.

text:
    Bolin versus Connelly.
    1. Benedict sold land in 1850 to Timmons, who in same year sold part to Burns, he in same year assigned to Connelly, who paid all the purchase-money of the part to Timmons in 1854 but did not takepossession. Benedict conveyed to Timmons in 1855; he conveyed to Whitmore in the same year. In 1865 Connelly brought ej ectment on his equitable title against Whitmore, which was indexed under the Act of April 22d 1856. Whitmore conveyed to Bolin pendente lite; Connelly obtained a verdict. In ejectment by Bolin against Connelly, held, that Bolin was concluded by the one verdiet against Whitmore, being in privity with him and the former ejectment being notice.
    2. Peterman v. Huling, 7 Casey 432; Seitzinger v. Ridgway, 9 Watts 496, followed.
    March 11th 1873.
    Before Read, C. J., Agnew, Sharswood and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1873, No. 264.
    This was an action of ejectment brought April 9th 1870, by Michael Bolin against John Connelly, for one acre of land in Pittston.
    The cause was tried January 14th 1873, before Harding, P. J.
    The evidence of' the plaintiff was as follows:—
    The premises were part of a lot of five acres, which prior to March 1850, was owned by Thomas Benedict; he about that time, sold to Terrence Timmons. On the 1.3th of March Benedict conveyed the five-acre lot to Timmons.
    On the 6th of June 1855, Timmons conveyed If acres, including the premises in dispute; to Thomas Whitmore; the deed was recorded December 17th 1855. On the 19th of June 1867, Whitmore conveyed the same 1| acres to Bolin the plaintiff.
    The defendant gave in evidence an article of agreement between Timmons and Barnard Burns, dated March 2d 1850, for the land in dispute, the consideration being $240, to be paid in annual instalments of $40 with interest. Burns paid one instalment, and on the 28th of October 1850, assigned the agreement to Connelly the defendant. In January 1854, Connelly paid the balance of the purchase-money to Thomas Benedict, the authorized agent of Timmons, but no deed was ever made to him.
    On the 25th of September 1865, John Connelly brought an action of ejectment for the land in dispute against Thomas Whit-more, Thomas Benedict and Terrence Gaffeney; the writ was served on all the defendants. This action was indexed against all the defendants under the Act of April 22d 1856, sec. 2, (Pamph. L. 532; 1 Br. Purd. 537, pi. 24). On the 25th of February 1870, a verdict was rendered in favor of the plaintiff, Connelly, for the land described in the writ, and judgment was entered on the verdict, March 18th 1870.
    On the present trial Connelly, under objection and exception, testified: “I gave in evidence on that trial this contract and these receipts. It was an equitable ejectment, and the contract was used for the purpose of having specific performance of it had. I had paid for the land in full; I brought that ejectment to obtain possession of the land.”
    The plaintiff, in rebuttal, gave evidence that Timmons was in possession when Whitmore purchased; several tenants had lived there; Connelly was not in the neighborhood; Gaffeney lived in the house once.
    The court after going over the facts, charged:— * * *
    “ This showing, gentlemen, gives quite another aspect to the present case. The counsel for the plaintiff, in their argument to the court, request us to charge you that there is no evidence in the case showing that Thomas Whitmore, the vendor of the plaintiff, had any knowledge at the time of his purchase from Timmons of the contract of the latter for the sale of the land to Burns, and of the transfer of that contract to, and consequent claim by, the defendant here, to the land, and that, therefore, Whitmore is to be regarded in law as an innocent purchaser without notice; and further, that having thus acquired a good title to the land in question, which he subsequently conveyed to the plaintiff, the latter is entitled to recover.
    “ In answer to this request we say to you [if you are satisfied of the correctness of the defendant’s testimony as to what formed the basis of his action of ejectment against Whitmore, Benedict and Gaffeney, and as to what was then actually in* issue, that action is to be regarded in law as a bill in equity, or as having taken the place of a bill in equity, and not as a possessory ejectment at common law. Moreover, the verdict and judgment therein being a verdict and judgment in ejectment upon an equitable title, was conclusive between the parties, and a bar to any subsequent ejectment, so far as they were concerned, for the same land. And the fact that there is no evidence in the present case, that Thomas Whitmore' was originally a purchaser with notice, is not at all material now.
    “ His rights, whatever they may have been, were passed upon in the equitable ejectment between himself and co-defendants on the one side, and the defendant here on the other. The vital point, as we understand the law, depends not so much on the character of that verdict, that is, whether it was conditional or otherwise, as upon the actual matter in issue. If, therefore, it has been clearly and satisfactorily shown that the equitable title was then directly in issue and decided upon, we repeat, it was conclusive between the parties. The plaintiff here, a subsequent vendee of Whitmore, cannot now try over again the very equity involved in, and settled by that case.] * *
    . The verdict was for the defendant.
    The plaintiff removed the record to the Supreme Court.
    He there assigned for error the part of the charge in brackets.

      E. 8. Osborne (with whom was 0. 8. Stark), for plaintiff in error.
    —In action of ejectment brought for land under articles of agreement, and paid for, one verdict against the title claimed is not conclusive; because no conditional verdict could be required; and therefore, nothing like a decree in equity for specific performance: Seitzinger v. Ridgway, 9 Watts 496 ; Brown v. Nickle, 6 Barr 391; Taylor v. Abbott, 5 Wright 352; Peterman v. Huling, 7 Casey 432.
    ■ E. R. Randall, for defendant in error.
   The opinion of the court was delivered, May 17th 1873, by

Asnew, J.

Michael Bolin, the plaintiff, bought lite pendente, and therefore with notice; the ejectment of Connelly, against Whitmore to November Term 1865, being indexed according to the requirement of the Act of 22d April 1856. The difficulty he encountered in this action was the fact that Connelly, the plaintiff in that action, and as assignee of Barnard Burns, the vendee of Terrence Timmons, held an equitable title only, upon which he recovered, the parol evidence showing that it was the only title he set up. No evidence was given to show that Whitmore, the defendant in that action, and grantor of Bolin, the plaintiff in this, set up any defence, other than non-payment of the purchase-money. In this state of the case the recovery of Connelly in the ejectment of I860 was final, according to the doctrine of Seitzinger v. Ridgway, 9 Watts 496 and Peterman v. Hulings, 7 Casey 432. Had Whitmore in that trial set up the deed from Terrence Timmons to himself as a purchaser for a valuable consideration, and without notice of the sale of Timmons to Barnard Burns, and that he had duly recorded his deed, a different question might have arisen in the trial of this case. But as no such issue was presented and tried in the former ejectment, we must presume now, that Whit-more failed to set up the defence because he knew then it would not avail him, and therefore defended against the plaintiff’s equity alone. Bolin, the present plaintiff, standing in privity with Whit-more, and having notice of the pendency of the former ejectment when he bought, stands now in no better situation than Whitmore. The verdict and judgment in the former ejectment were therefore final, and now estop the plaintiff from a new trial.

Judgment affirmed.


author: Mercuu, J.

text:
    Palmer versus Wilkinson.
    1. In a scire facias on recognisance of bail in an appeal from an award of arbitrators, under “ nul tiel record,” the defendant cannot set up that the costs of the suit were not paid when the appeal was taken.
    2. This plea puts in issue only the existence of the record recited in the wi'it.
    3. When the non-payment of costs on appeal is by the exclusive fault of the prothonotary in withholding a knowledge of part of them, the payment of the omitted part may be enforced by attachment.
    4. If no objection be made to the irregularity of the appeal and the appellant secures another trial, it is too late for him or his surety to interpose that to a recovery on the recognisance.
    March — 1873.
    Before Read, C. J., Agnew, Sharswood, and Mercur, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common'Pleas of Bucks county: No. 250, to January Term 1873.
    This was a scire facias sur recognisance of bail, brought to December Term 1870 of the court below, by Edward Palmer against Daniel B. Emerick and James M. Wilkinson. Emerick was not summoned, and as to him the suit was discontinued.
    To December Term 1867, Palmer had brought an action of assumpsit against Emerick; the suit was arbitrated and an award made, February 8th 1868, for the plaintiff for $117.16. The record showed that the docket costs were $15.50, and the plaintiff’s bill oí costs $31.76. On the 28th of February the defendant Emerick paid the docket costs $15.50, and appealed and entered into recognisance in $100 with James M. Wilkinson as his surety. The case was tried on the appeal and a verdict was found for the plaintiff for $160.69.

      The scire facias was afterwards issued; it also was arbitrated, and an award found for the plaintiff; the defendant Wilkinson appealed and pleaded “ Nul tiel record.”
    There were eight reasons alleged for sustaining the plea.
    The 6th was: “ The recognisance was illegal, as was the appeal, because the former was taken and the latter entered without the payment of accrued costs.”
    The court held all the other reasons insufficient, but for the 6th sustained the plea and entered judgment on it for defendant, Ross, P. J. saying:—
    “ It appears from the record that but a portion of the accrued costs, taxed at the time of appeal, were paid when the appeal was entered, and that the residue were left unpaid, and are unpaid at this date. The appeal therefore was never legally taken. It is a condition precedent to an appeal that the accrued costs should be paid in cash: Ellison v. Buckley, 6 Wright 281. This was not done. The appeal was in law not perfected. It fails; and the recognisance, one of its incidents, is void. This is an insuperable difficulty; it appears upon an inspection of the record, and sustains the plea of nul tiel record.”
    The plaintiff took a writ of error and assigned for error the entering of judgment for the defendant.

      L. B. Thompson, for plaintiff in error.
    The plea put nothing in issue but the recognisance: Cooper v. Gray, 10 Watts 442; Burkholder v. Keller, 2 Barr 51.

      II. Yerkes, for defendant in error.
    There was no appeal taken from the award, because the costs were not paid and therefore the recognisance a part of the record is void ; to a void record “ Nultiel record,” is a good plea: Donley v. Brownlee, 7 Barr 109; Miller v. Fees, 2 Penna. L. J. R. 242; Hull v. Russell, 4 Id. 129.
   The opinion of the court was delivered, May 17th 1873, by

Mercuu, J.

This was a sci. fa. sur recognisance. The plaintiff pleaded nul tiel record, and assigned eight reasons therefor. The court sustained the sixth reason, and entered judgment in favor of the defendant. A prior suit had been pending between the plaintiff and one Emerick, in which the plaintiff obtained an award before arbitrators. Upon the twentieth day thereafter Emerick paid to the prothonotary all the costs except the plaintiff’s bill, appealed from the award, and with Wilkinson, the present defendant, entered into a recognisance. That case was subsequently tried, and the plaintiff recovered a verdict and judgment for a larger sum than the award. Thereupon the plaintiff issued this sci. fa. upon the recognisance.

The ground upon which the court sustained the plea was, “ that the recognisance was illegal, as was the appeal; because the former was taken, and the latter entered, without the payment of accrued costs.”

It is true one of the requirements of the statute to perfect an appeal from the award of arbitrators is that all the costs that may have accrued in the suit shall be paid. This fact, however, cannot be inquired into under the plea of nul tiel record. The writ of scire facias is not set forth in the paper-book, yet it is no part of the writ to recite the amount of costs that had accrued prior to the appeal, nor to aver anything in regard to their payment or non-payment. This plea merely puts in issue the existence of the record as recited in the writ, and therefore is proper only where there is either no record at all, or one different from that upon which the plaintiff has declared: 1 Chit. Plead. 485; Burkholder v. Keller, 2 Barr 51. The non-payment of a part of the costs was not admissible in evidence under the pleadings. It did not contradict the existence of the record as recited, nor that it differed therefrom. This plea puts in issue nothing but the recognisance, the rest being merely inducement; and if the variance is material it should be specially pleaded: Cooper v. Gray, 10 Watts 442.

When the taxed costs have not all been paid, through the fault or negligence of the party appealing, the appeal may be stricken off upon the application of the opposite party; but where their non-payment is caused by the exclusive fault of the officer in withholding the knowledge of the existence of a portion of them, the payment of the omitted portion should be enforced by attachment: Fraley v. Nelson, 5 S. & R. 234; Carr v. McGovern, 16 P. F. Smith 457.

If, however, no objection is made to the irregularity of the appeal, and the party appealing effects his object by securing another trial, it is then too late for him or his surety to interpose such an irregularity as a bar to a recovery upon the forfeited recognisance.

The ground of which the learned judge predicated his action being untenable, and being unable to discover in the other reasons assigned to sustain the plea any cause to sustain the judgment, it must be reversed.

Judgment reversed, and judgment is entered in favor of the plaintiff.