text:
    JOHNSTON against SMITH.
    Rent reserved upon a lease for a year, or a term of years, is incident to, and accompanies the reversion; unless they be separated by an express reservation. Thu? the sale and conveyance'of a farm, when in the possession of a tenant, who held the same upon the terms of yeilding to the landlord a certain proportion of the grain raised thereon, was held to vest in the' purchaser the right to receive that proportion of the grain which was growing on the land, at the time of the conveyance td him, which the landlord would have been entitled to, if he had not conveyed.
    Error to the Common Eleas of Columbia county.
    This action was trover, brought by the defendant in error, to recover of the plaintiff, the value of a quantity of grain, consisting of wheat and rye. On the trial evidence was given, that Chas. Clark, had been the Owner of a certain farm and tract of land; that he had let it to Smith the deféndant in error, who had taken possession of it, lived upon it two or three years, and was to pay his rent, by a certain share of the grain raised by him upon the farm. That in March, 1828, Clark sold:and.conveyed the land to Johnson, while Smith was in the possession of it, as the tenant of Clark, under the terms mentioned.- Upon the first of April following ,the conyeyance of the reversion to Johnson, Smith quit the possession, and surrendered it to Johnson. At the harvest following, Smith cut the grain, divided it and put the land-; lord’s share into a spring-house upon the farm. Johnson, as the purchaser of the reversion, conceiving himself entitled to the grain, which was the rent of the farm, for that year, during which he had purchased, used if. Clark, his grantor, also claimed this rent from Smith, as coming to him: and Smith, that he might deliver the grain to Cldrk, came to take it away, but Johnson would not let him; and he then brought this action for the benefit of Clark. The counsel of Johnson on the trial of the cause requested the court below, among other things, to charge the jury, “that if Smith had a-lease for a year and lived on the land, paying a certain portion of the grain for rent, that a sale of the land by the lessor, without reservation in the deed, would convey the rent to the vendee, if payable after the delivery of the deed.’’
    The court below (Chapman, President,) delivered the following opinion to the jury:
    On the facts, which are not disputed, three questions of law have been made.
    1. That every thing growing on the ground, at the time of sale and delivery of the deed and possession of the land to the vendee, passed with the land to the vendee; but that all. rent which was due and payable before the sale belongs to the vendor.

      3. It is contended by the counsel for the defendant, that Michael Smith the plaintiff cannot support this action, having delivered the grain agreeably to his lease in the barn, it belonged either to James Johnson or Charles Clark, and that it is necessary for the plaintiff to have either an actual or qualified property,- to support an action of trover.
    There has been a previous trial of this cause before this court; and on that trial, the court delivered their opinion in favor of the defendant. The cause was removed, and the Supreme Court-reversed that opinion. Oh this trial, the cause has been more fully argued; and the counsel for the defendant contends, that the material questions were not brought before the Supreme Court; and that they have not adjudicated upon them. It does appear from the case reported, that Charles Clark, had leased the farm to Michael Smith for one year, which was to end on the 1st April, 1828: whereas by the evidence Michael Smith held the farm from year t& year, and had lived upon it as tenant'for two or three years; ánd in the decision of the cause, the Supreme Court take no notice of Michael Smith's delivering the grain in payment of his rent. Under these circumstances, it is out of no want of respect for the opinion of that court, but from the necessity of the case, and that it may come fully before that court, and that the important principles involved in this cause may be fully settled; that I have been induced to observe more fully upon the case, than otherwise would have been necessary. I had always considered that there was a marked distinction in the laws of England, as to where the grain in the ground would pass with land or would not pass. That the general rule is, wherever the estate is terminated by the act of the party, the grain in the ground passes with the landf but wherever the estate is terminated by the act of God, or by the act and operation of the law, the grain in the ground belongs to the former owner and passes to the executor or administrator of the deceased. The devisee will take the grain in the ground at the death of the devisor, because the devisee takes by purchase, and it was by the appointment of the devisor that he should take the estate, when he ceased to hold it: whereas when the heir at law takes the estate by act and operation of law, the grain in the ground passes- to the administrator. If a man be tenant for the life of another and he, during whose life the land is held, dies after the grain is sown, the tenant takes the grain; the termination of Jhe lease being by act of God. The husband and wife hold an estate during coverture, a;nd the husband sows the-land, and they are afterwards divorced from the bonds of matrimony, the husband shall have the grain in the'ground, for the sentence of divorce is the act of the law; but if the'estate is terminated by the tenant’s o>vn act, it is otherwise. If a tenant during widow-hood thinks proper to marry, ^he loses the grain in the ground; for the termination of the estate was by her own act. ■ So if a husband make a feoffment in fee for the use.of himself for life, and after to his wife, and he sów land and afterwards die, his executors or administrators shall have the grain in the ground. But if the feoffment be made to the use of the husband and wife.together, in fee or for life, and the husband sow the land and die, in this case the wife, and not the executors or administrators shall have.the grain in the ground. These distinctions do not appear altogether to arise from the circumstance of grain in the ground being a chattel interest arising from the land, but from a principle of justice that, he who sows the grain, with a reasonable prospect of reaping it; and the estate is terminated, but not by his own act or consent, his executors or administrators shall have the grain, and also for the encouragement of agriculture. In England, a tenant for a certain number of years is not permitted to sow grain, ' Which he cannot take away with' him at the expiration af the lease. By a decision in this state, the tenant has the way-going crop. Why? Because a tenant renting for one year, the lease by consent of the parties, wTill continue from year to year. By the uncertainty 'of the termination of the lease, he is entitled to the grain in the ground. 'Another reason is given : The renting in England, is said to be in ' the fall,' here in thé spring of the year; and it would be manifestly unjust, that the tenant should pay a whole year’s rent, without having a year’s profit of the land. So that this case is decided upon the same principle of the English law. In England, land is not sold for the payment of debts. From a very early period, in this stale, land could be taken for the payment of debts under certain provisions. Before sale, it must be decided by an. inquest, whether the rents, issues and profits would pay the debts, interest and cost; beyond all, reprizes, within seven years, if so the land could not be sold, ,and the chattels and all other personal property must first be exhausted, before the sale of the'land. - Grain in the ground could be taken in execution; ■ never having been considered part of the freehold; but a chattel interest arising'out of it. When lands are sold by the Sheriff for payment of debts, they do not pass to the purchaser by the consent of the former owner, but by the act and operation of law; hence it follows, that grain in the ground belongs to the former owner, and may be taken in execution for the payment of other debts, whose executions have the first lien.”
    “It has been contended for the plaintiff, that by the'custom of the country, the vendor reserved the right to take the grain which was growing upon the ground'atthe time of sale. I never heard of sucha custom, before the trial of this cause; and I believe that such a custom or general usage never , could or did exist. In many if not in most cases; where -a farmer sells the land upon which ho resides, it is with the view of moving to a distance, where he can acquire more and better land for the saíne price, by which, means his circumstances would be improved. In these cases, he deliv-. ers his deed, receives his money, and the vendee takes the land with the grain in the ground. I have known in a very few instances, where the vendor continued to reside in the neighborhood after the sale, a clause to be inserted in- the article of agreement, that the vendor shall haye the grain in the ground, leaving the straw upon the premises.' But these cases have been nothing-like a general usage, which would create the law-.
    The second appears to this court, to be the important question in this cause. Michael Smith was unquestionably the tenant of Charles Clark, holding the- farm which he rented and resided upon from year to year, enjoying the whole of the profits thereof covenanting to pay to his landlord a. certain portion. of' the grain, which he raised upon the land, to be delivered in the bushel, at. the barn, o.n the premises. In this situation, the grain while growing upon the ground, was the-property of' Michael Smith;- and if any person destroyed any part of it, he.could maintain trespass against him. By the English authorities, all rents due and payable pass with the land, and it makes no difference whether the land passes by devise, by descent or by- alienation. The right of $ie landlord to recover his rent when it becomes'due, commences, ■vvith the lease, and delivery of possession of the land to, the tenant. The renj in this case could pot hecomq due and payable, until, there was a reasonable time for the tenant to harvest and thresh it,, before that time, the landlord cquld not demand his rent, or make, a levy upon the grain for his rent. A cropper is where an owner- or occupant of land employs a person tq cultivate a certain field or fields on the farm with grain, and as compensation to'' him for his labour, agrees to deliver to him a certain portion of the grain, when threshed, in the bushel. In that case, the property of the-grain remains in the owner or occupant of the land, who could support trespass- against any one who destroys the grain., That r-ent, passes with the land which is not due, and payable attheter-v mination of the estate. It is stated in Shephard’s Touchstone, if- one seized of land in fee, makes a lease for years, ending at-Michaelmas, and the lessor happen to die during the term, after-Michaelmas, and before the ten days expired, in this case, the heir-of the lessor, and not the executor or administrator, shall have the last half year’s rent due at Michaelmas..

    “Whether there is any distinction made in this state, whether-the rent is payable in grain or money, or whether the English law do.es, or does not extend here, as respects grain growing in the. ground, at the termination of the estate; is not now for this court to, decide as we consider it as already decided, in this case,”'

      It remains tobe considered, whether this action of trovercan he supported by Michael Smith. It may be, as has been contended, that Smith literally complied with his lease, by his depositing the landlord’s share of the grain in the barn on the premises; but he did not substantially comply with his lease. We should have delivered the landlord’s share to Chas. Clark, who, it, is now decided, had the right to receive it. 'Until such delivery, at least a qualified property remained in Smith, sufficient to support’an action of trover. I consider that the Supreme Court have decided this cause in -favor of the plaintiff, and it would not be proper fo.r this court to decide, that they did not take it fully into consideration. : That is for the judges of that court to decide. We are bound by their decision, where the, facts are not disputed; and your verdict should be for the plaintiff, at least for the value of the-grain taken.by the. defendant.” 1 ■■

    This opinion was assigned for error.

      Grier, for plaintiff in error,
    said, that this writ of error was sued out for the purpose, of establishing the very plain principle, that rent was incident to, and was transferred for a conveyance of the reversion. To which point he cited 3 Bac. M. 63, Title- Exec's. .Sclm-r's. and that the grain, the value of which was' claimed in this action, was rent, he cited Frey v. .Jones, 2 Reticle-,. 12. Stewart v. Donty, 9 John. Rep. 108. ' .

      Frick, for defendant in error,
    insisted, that the-question now before the court, had been already decided and represented in. Smith v. Johnson, 1 Penn. Rep. 471, .and that grain in the ground was a chattel, and not subject to the same rules, of law with regard to its transfer, which -prevailed in EnglandCited 2 Rawle, 171. 1 Rawle;- 335.

   The opinion of the court was delivered by

Kennedy, J.

The charge of the court was certainly wrong. For no principle is better settled in the law, than that rent reserved upon a lease for a year dr a term of years, which is the same thing, is incident -to and accompanies the reversion; unless separated by an express reservation. Upon the death of the lessor, the reversion descends to his heirs, and they are entitled to demand and! receive the rents which shall become payable afterwards. Co. Lit. 47 a, 143 a. 3 Bac. Abr. 62, 3. Fealty is said to be inseparable from the reversion; but rent may be excepted, because as. Lord Coke, says, “although it be incident to the reversion, yet it is not inseparably incident. Co. Lit. 143 a Neither is it necessary, in order to make rent incident to the reversion, and transmissable with it to the heir, or to an assignee-of the reversion, that it should be payable in money; for says Sir Edward Coke,, “it may as well by in the delivery of hens, cap,offs,! roses, spurres, howes, shafts,. horses, hawkes, pepper, coniine, wheat, or other profit that lieth in render, office, attendance, and such, like, or inpayment of money. Co. Lit. 142. Fry v. Jones, 2 Rawle, 11.

It has however, been contended here, by the counsel for the defendant. in error, that under the terms and conditions, upon which he held the farm of Clark, that the land belonged to Clark at tho time the grain was sown; and that as soon as the seed was committed to the ground it became the property of Clark,- and must, be considered his grain growing upon the land at the time he sold it to Johnson; and that according to the decision' of this court, in the same cause in a former writ .of error, Penn. Rep. 471, there being no express graht of the grain growing upon the land, contained in the deed of conveyance from Clark to Johnson, it must be considered as reserved by Clark-, and that Johnson acquired no right to it: The premises from which this conclusion is drawn, cannot be sustained. Although Clark continued to be the owner of the land in fee after Smith took the possession of it under the assign-men t made with him for that purpose, yet by the term's of that agreement, he parted with his right to the possession of it, as the possession itself. He parted with his right and. all claim to the products of the land while growing upon it during the continuance of Smith’s interest in the possession and use of the same under his contract with Clark, as completely, as if he had let the farm to Smith for a money rent, Clark, therefore, had no right whatever to an interest in the grain sown by Smith, and growing upon the land at the time he sold and conveyed it to Johnson. Upon this principle it was very justly and correctly held by the Supreme Court of New York in Stewart v. Daughty, 9 Johns. Rep. 108, that the purchaser ata Sheriff’s sale of the crop of grain growing upon the land which the defendant in the execution, as whose property it was taken and sold, held at the time of sowing the crop under a léase for years, Upon which he was to pay one half of all the grain raised by him on the farm in each year as his rent, delivered in the bushel, and which-lease had been terminated by the lease, before the grain had ripened and was cut, was entitled, to the whole of the crop; and that the landlord had no interest in it until it was separated'from thé ground, and his proportion of it delivered to him in conformity to the terms of the lease. And it was also held in this case, that the purchaser. of the crop at the Sheriff’s sale, might maintain trespass quart clausum fregit against the landlord himself who had expelled the plaintiff from the ground upon which the crop grew at the time he was cutting it.

The court below seemed to have, misapprehended the point or question, upon which the opinion of this court was pronounced upon a former writ of error. 1. Penn. Rep. 471 and not altogether without-some reason: for in ¡the report of- the Cause, the case as there stated, presents the same question which is now raised; but theropinion oí the court'presents an entirelyMifierent one; that is, whether a sale, conveyance and delivery df the possession of land, passed with it a right also to the crop of grain growing on the land at the time of the, grant or-conveyance, which belonged to the grantor? This Was the questioh, which was then resolved' by this pourt; and not that of whether a grant of the reversion carried with it a right to demand and receive the future accruing rents?

Judgment peyerspd anc} a venire de novg awarded.


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    GRAFFINS et al. against COMMONWEALTH.
    An indictment agaiiist supervisors of the public roads, for not keeping them in, repair, must conclude “to the common nuisance of the citizens of the Commonwealth of Pennsylvania.3’
    A corporation derives all its powers from tile charter; and from it the duties, obliga-, tions and liabilities of il;s officers are to be pollected. Hence, an indictment against Street Commissioners, appointed by authority of a charter of incorporation of a fiorongh, for pot keeping in repair a street, cannot he sustained; the charter not authorizing such a proceeding. ■
    AVrjt of error to the Quarter Sessi-ons'of Lycoming county.
    This was an indictment against GRAFFINS and RATHNELL,. Street Commissioners, for neglecting to repair a certain street in the borough- of Williamsport. The defendants were convicted; and two errors were assigned in the court to the judgment. First,_ that the indictment was defective in this, that it did not conclude Wo the common nuisance of the citizens of the Commonwealth of Pennsylvania.” Secqnd, that no indictment .could be sustained against the defendants. .

      Parsons and Anthony for plaintiff in error.
    As to the first point cited, 5 Bac. Ab. 152. T1 Serg. §- Rawle, 345. 14 Serg. <§• Rawle, 447. But by the act of incorporation, the Street Commissioners are appointed by the Town Council and have neither funds, powers or duties but what are given to them by the ordinances of the corporation. It is a sufficient answer to the bill of indictment to say, that the defendants were not vested with power to repair- the street, for neglecting which they were indicted. ■ "

      Armstrong for defendants in error.
    Argued, that an officer is always indictable for an omission to perform a public duty.. The defendants, ex officio, had the poweruv^rthe street.heingout qfrepaircalled into requisition their duty: and. that they had not funds, was a matter of fact to be urged in their defence before the jury. — As to the form of the indictment, he cited Chit. Crim. Law, Í0.- Reed’s Dig. 442.

   The opinion of the court was delivered by •

Ross, J.

This was an indictment against the plaintiffs in error, for neglecting to repair a certain street in the borough of Williams-port. ' The act incorporating the town of Williamsport, passed the first of March 1S04, section sixth, provides: — “That it shall and may be lawful for the Town Council to medt as often as occasion shall require, and enact such by laws, and make such rules, regulations, and ordinances as shall be determined by a majority of them, necessary to.promote the peace, good order, benefit, and advantage of the said borough, particularly providing for the market, streets, alleys, and highioays therein.” They are also authorized to assess, apportion, and appropriate such taxes, as shall be determined by a majority of them to be necessary, and to appoint two persons to act as Street and Road Commissioners. The 'defendants indicted were appointed, in pursuance of this provision, the Street and Road Commissioners. A corporation derives all its powers from the charter. From it, the duties and obligations of those appointed under.it, are to be collected. Street and Road Commissioners, merely'as such, are by the charter invested with no powers; but their duties and their powers, are to be pointed out, and imposed by an ordinance; and the town council alone are invested with the power of making'ordinances. They, however, do not appear to have legislated on this subject; and, therefore, the commissioners had no duties assigned them to perform, and no indictment would lie against them for omitting to do that, which they were under no legal obligation to perform. The burgess is required to issue his precept to the high constable to collect all the taxés assessed, and the same to pay over to the treasurer. He is required to carry into effect all the By Laws, enacted by the council, and to have jurisdiction of all disputes between the corporation and individuals arising under the by-laws.

It is manifest from the power with which the burgess is invested, that the duties which the commissioners should exercise, were to be imposed by the by-laws. They have no power to amend, fill up, or dig down the streets, until the council shall confer such power upon them. Previously thereto, they exist only in name, without any authority to act; and even after they shall’have been invested with such power., they will be restricted in its exercise to the provisions of the ordinance. The coúncil hold the' purse strings of the Treasurer; and the burgess himself only possesses jurisdiction of all disputes between the corporation and individuals arising under the by-laws. \

But suppose there had been by-laws in the borough imposing the duty oil the commissioners of repairing the Streets, &c. could \ th'ey have been indicted for neglecting such duty? I apprehend not. The charter does not authorize the passing a by-law to make that an indictable offence, which was not so before. The council mayinflict a fine for their neglecting a duty imposed upon them by an ordinance; but they certainly cannot imprison for such neglect. The great object to be attained by having a town incorporated, so far as regards the streets and the roads, is to enable a population, which is too large and dense, to be accommodated by the general road law, to adopt such measures, and make such minute regulations, as are requisite for the health and convenience of the inhabitants. The provisions of the road law would not extend to any other street, road or alley, which had not been laid out by the court of Quarter Sessions; for by the act of the 6th of March, 1802, the supervisors are enjoined to make, open, and repair, all public roads within -their townships, which, by the court of Quarter Sessions of the proper county, have, been, or hereafter shall be, declared public roads or highways. If the provisions of this act did extend to roads which were not laid out by the Quarter Sessions, it would invest the owner of land with the power ■ to lay Out streets and roads through his property, and compel the township to be at the expense of keeping the same in' repair-. It would be transferring the power from the court-of Quarter Sessions to individuals, whose lands might extend for miles; and thus operate very injuriously upon the townships. No such construction, however, can be given to the act.

A sufficient answer has been given to all the errors assigned, excepting the last,-which is, that the indictment does not allege that a common nuisance existed, and does not conclude, to the common nuisance of the citizens of the Commonwealth of Pennsylvania. So far as I have been able to examine the books upon this subject, the law seems to require, that the indictment should have concluded to the common nuisance of the citizens of the Commonwealth. The precedents of indictment in Chitty’s Criminal Law, are all drawn in this manner, and contain this allegation. In the form given in the appendix to Reed’s Dig. the allegation of its being to the common nuisance of the citizens, is omitted; but every lawyer, who has had occasion to examine the forms given by Mr. Reed, must have observed, that-they are imperfect, and by no means to be relied upon. This may, perhaps, be owing to the negligence of the printer, or to the carelessness of the clerk, who transcribed them. In 2 Barnad, 192, it is laid down, that an indictment for not repairing a highway, must call-it communis' via; and in Cro. Elizabeth,148, it is expressly said’, that an indictment-for stopping á highway ad noCUmentum diversorum' legiorum Dontinae ReginagyWás quashed;because it was ad nocumentum of some, and not of all-' the king’s subjects. See 1 Hawk. P. C. 361. 5 Com. Dig.166.- This being the law, and the forms being all in accordance with it, excepting the one in Peed, I am not aware of any reason for changing or relaxing the rule. Such alterations generally produce much mischief; and introduce uncertainty into the criminal code, where certainty is of the greatest importance. The gist of the oEence intended to be laid in this indictment, is thatjs a common nuisance to the citizens, and unless the road was such a nuisance, no indictment would lie; and therefore it should have made the allegatión and concluded to the common nuisance of the citizens of the Commonwealth of Pennsylvania.

Judgment reversed.


author: Gibson, C. J.

text:
    FEATHER against STROHOECKER.
    Every partition, aa well as every exchange, implies not only a warranty at the election oftlie party, but a condition entire, the breach of which gives an entry into the whole; with this difference, however, that a voucher to warranty of the part evicted, affirms the partition, by the acceptance ofa compensation, while an entry for the condition broken defeats it. If, then, the whole or any less estate of freehold be evicted, in all or any part of a particular purparty, the partition may be avoided in the whole, whether it be of a manor that was entire, or of parcels that were several.
    G.’s heirs and S. being tenants in common of a tract of land a partition was made between them. One of the heirs of G. who had been married to one of the sons of S. was in possession of the land after the death of her husband, who came into possession as the tenant of his father; an ejectment having been brought by the one who claimed under S. to avoid the partition, on the ground that they had been evicted by a stranger, from part of the land allotted to S. Held: That she was not precluded from making defence because of her character of tenant.
    Error to the Common Pleas of Northumberland county.
    This was an action of ejectment by William Feather and Peter Strohoeeker against Leah Strohoeeker. The facts which gave rise to the question of law determined, were these: — Thomas Grant died, seized of a tract of land containing two hundred and seventy-five acres; his executors by authority of a power contained in his will, sold and conveyed-the land on the 14th June, 1816, to John Garber xn& John Strohoeeker; after which JohnGarber died intestate, and one of his sons petitioned the Orphans’ Court for a writ of partition and valuation of the undivided moiety of the land, without requiring it to be first separated from the interest of John Strohoecker. The inquest first made partition between Strohoeeker and Garber’s heirs, by assigning a certain portion to Strohoeeker and then executed the writ on the residue, as the several estate of the intestale. After the partition was thus made, Garber’s heirs sold parts df the land allotted to them, to different individuals. Leah Strohoecker,the defendant,was one of the heirs of Garber, and she and her husband, then living, came into the possession of the land, for which this ejectment was brought, during the life time of her father and under him. After the partition, an ejectment was brought by Rebecca Stedman for part of the land, and she recovered a verdict and judgment for ninety-five acres of it, and was put into possession. After this recovery, actions of covenant against Grant’s executors were brought both by Strohoecker by the administrator of Garber, which were, pending. The questions which arose out of thes'e facts were, 1. If the partition were not absolutely void ab initio, but confirmed by the consent of the parties in interest, was it not avoided by the eviction of one of them from part of the land? 2. Was the relation of tenant which Leah Strohoecker had to the plaintiffs such as to preclude her from her defence upon the merits?
    The defendant’s counsel requested the court to instruct the jury,
    1. That John Garber's heirs have an equal right with John Strohoecker to the land, in the deed oí Jane 14th,1816, not recovered by Rebecca Stedmaiit

    2. That the plaintiffs cannot support this ejectment, unless the jury are well satisfied, that the hundred acres in the possession of John Strohoecker and his alienees, are not equal to the eighty-five acres in possession of Garber’s heirs and their alienees; and then only for'one half the difference.'
    3. The defendant, being one of the heirs of Garber, is not a trespasser in any view of the case,' for the heirs of Garber have a lien Upon this land for one half the value of the land recovered by Rebecca Stedman, and cannot be disturbed until that lien is extinguished, or the money tendered.
    To which the court replied:
    ' 1st. They have such right, in case they do not recover their loss from Grant’s executors. If they recover from Grant’s executors, they have no right to contribution from the land allotted to John Strohoecker,as the share of theland on partition or'from the assignees.
    2. The plaintiffs can support their ejectment, whether the hundred acres in possession of Hoos and Honsal is equal in value, or not to the eighty-five acres in possession of Garber’s heirs and their assignees.
    3. If the defendant came in as tenant of Strohoecker, she' must restore the possession to her landlord. Garber’s heirs would have a lien on all the estate of John Strohecker for their distributive shares, if they do not recover full compensation from Grant’s executors, but that does not prevent the plaintiff’s recovery, before .that contingent lien is decided.

      Exception was taken by the defendant to the opinion of the court which was argued by

      t’¿reenough for plaintiff in error.

      Lashells, for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

This action is brought to dispossess the defendant of land, which she claims to hold in common with the plaintiffs. A larger tract, of which the land in dispute is part, was held by John Garber, her father, in common with John Strohoecker the plaintiffs’ grantor. Garber died intestate, and in pursuance of a petition by one of his sons, the Orphans’ Court awarded a writ of partition and valuation of his estate, without requiring it, as ought to .have been done, first to be separated from the estate of Strohoecker by act of the parties or an action at the common law. The inquest made partition between Strohoecker and the heirs of Garber, in the first place, by assigning the lower part of the tract to the former, and then executed the writ on the residue, as the several estate of the intestate.

That the Orphans’ Court should have sanctioned the act of the Sheriff and inquest in making a preliminary partition, as the foundation of what was to follow, is not a little surprising. It is not easy to imagine, how any one but the heir or representative of an intestate, could be made a party to a partition in the Orphans’ Court. In the case of a tenancy in common by purchase,the judgment that partition be made, the application within a year to open it or make 'a new partition, the mode of producing equality of partition, or of yesting the title, the appointment of guardians ad litem, in short all the parts of the process, are peculiar to the courts of common law, and confided exclusively to the Supreme Court and the Common Pleas; from the benefit of which, to say nothing of the constitutional right of a trial by jury, the party ought not to deprived by any thing less than an express statute. On the other hand, the proceeding in the Orphans’ Court without provision for personal service or publication of notice to the surviving tenant, or for determining whether he held in common with the intestate, or for charging a sum on either purparty for owelty of partition, or in case the land cannot be divided, for deciding between the surviving tenant and the representatives of the dead one, which side shall take the whole, and many other matters, which, though perfectly manageable in the courts of common law, involve interests and estates too multiform and complicated to be embraced by the proceed-, ing in the Orphans’ Court, which is adapted exclusively to the case of a tenancy in common by descent. The partition between Strohoecker and the heirs of Garber, therefore,seems to have been originally void for want of jurisdiction; but taking for granted that the parties confirmed it, or rather made q yalid partition'in accordance with it, by taking possession and exercising acts of exclusive ownership, on the the principle of Ebert v. Wood, 1 Binney, 216, a question arises whether it was not avoided by the subsequent eviction of a part of one of the purpartys.

This question is of easy solution. Every partition, as well as every exchange, implies not only a warranty at the election of the party, but a condition entire, (he breach of which gives, an entry into the whole; with this difference, however, that a voucher* to warranty of the part evicted, affirms the partition by the acceptance of a compensation, while^ an entry for the condition broken defeats it. If, then, the whole or any less estal.q of freehold be evicted, in all or any part of a particular purparty, the partition may be avoided in the whole whether it be of a manor that was entire, or of parcels that were several. As if A. being seised in fee of one acre in possession, and of another expectant on an estate for life, disseise the tenant for life and die; a partition of these two acres between his two daughters, will be avoided by the entry of the disseise. Viner, Partition, 2 pl. 5, 6; and the same law is laid down 1 Inst. 174. So it is said that one parcener cannot enter into her part again without the consent of the other, yet if a stranger enter into lief purparty by an older title, she may enter with the other and compel her to make a new partition. Bro. Par. pl. 34. Again, after eviction of an estate of freehold from a parcener who has a bad title as to the. whole or a part, she may enter and avoid the partition as to the whole or a part. Co. Lit. 208: and the same law was held in Bustard’s case, 4 Rep. 121, b, on the authority of 15 E. 4, 3, and 42 Ass. 2 2; and the principle of the Earl of Pembroke’s case was affirmed while the opinion of Cavendish, that partition shall remain,though an estate for life or in-tail were evicted, was denied. Such, then, being the rule, and ihe party entitled to enter being already in possession, an entry to give her the benefit of the condition, was unnecessary; as was held in Hamilton v. Elliott, 5 Serg. & Rawle, 375, where the doctrine on the subject was particularly examined. By the eviction of part of the purparty allotted to Garber’s heirs, therefore, the parties were remitted to their original rights; and these were not varied by their action on the covenant of Grant, from whom the original tenants derived the estate; inasmuch as recourse to that, was entirely consistent with the original tenancy.

In respect to another point in the cause, the court charged, that if the defendant’s husband came iqto possession under his father, (one, of tho original tenants in common,) she would be bound to deliver the possession to the plaintiffs, who are grantees of the father’s reversion. But she also, -was a child of one of the original co-tenants, and in the absence of other proof, there is a presumption that she and her husband came in under both. On the death of her father, then, to what did she succeed? Not only to a portion of his estate, but to his character of landlord, in which, as she could not surrender the possession to herself, she was entitled to retain it as an accessory of her newly acquired ownership, at least so far as was consistent with the nature of her estate, and the concomitant rights of her co-tenants. The parties, then, stand in point of right as if no partition had been made or under-tenancy created, each being entitled to possession in common with the rest according to the quantum of his estate.

Judgment reversed and a venire de novo awarded,


text:
    COMMONWEALTH against SHEPARD.
    The remedy for compensation, under the “Act for the purpose of adjusting the titles to land in liedford and Ulster townships in Luzerne and Lycoming counties” is personal, and not to be assigned directly or indirectly. A conveyance of the land therefore, by the Pennsylvania claimant, will not entitle the grantee to maintain an action by virtue of the provisions of that act against the Commonwealth.
    Error to the Common Pleas of Bradford county.
    This was an action brought against the Commonwealth by Job Shepard, in pursuance of the provisions of the “Act for the purpose of adjusting the titles to land in Bedford and Ulster townships, in Luzerne and Lycoming counties,” And the following case was stated, to be considered in the nature of a special verdict.
    “On the 17th May 17S5 a warrant issued to Timothy Pickering, Samuel Hodgdon, Tench Cox and Duncan Ingraham, for 400 acres of land, No. 32. On the 6th July, 1785, a survey of four hundred and thirty-one acres, was made in pursuance of said warrant, on the west side of Tioga river, about Esther’s Plains, in district No. 18. then Northumberland now Bradford county, and situate in Ulster, one of the 17 townships named in the acts of assembly for adjusting Connecticut claims. On the 15th day of September, 1785, the said survey was returned into the surveyor general’s office. On the 6th day of April 1785, articles of agreement were entered into between Timothy Pickering, Samuel Hodgdon, Tench Cox, Duncan Ingraham, jr. Undrew Craigie and Myers Fisher for the purchase of warrants, surveying and patenting lands in Pennsylvania; and appointing said Pickering Hodgdon, Cox, and Ingraham, trustees to procure warrants and transact business for the benefit of thejcompany, under the limits, and to the extent set forth in the said articles of agreement, which are copied and herewith annexed,-as a part of this case.
    The aforesaid trustees are all dead leaving heirs, but Timothy Pickering was the survivor for several years, and afterwards died, having first made his last will and testament, duly executed and proved, appointing John Pickering and Octavius Pickering his executors, who accepted and gave bonds, in which will and testament, inter alia, is the following clause: “I also hereby give to my said executors, full power to sell, and by good and sufficient deeds to convey all my lands in the states of Pennsylvania Ohio, Virginia and Kentucky, and all my right and interest in said lands, or any of them, placing the moneys received therefor at interest, or in some productive stock or funds.” The said will was dated the 15th day of May, 1827; and proved the third Tuesday of February, 1829. The said Timothy Pickering also left sundry children, of whom the said John Pickering was and is the eldest son. On the 21st day of May, 1830, the said John Pickering (describing himself as the eldest son and heir at law of the said Timothy Pickering,) executed a power of attorney to Putnam Catlin to sell and convoy the said tract of land on the on the 29th July, 1830, John Pickering, aforesaid, by his attorney in fact, Putnam Catlin, executed a deed for the said land to Job Shepard Urn plaintiff. In 1831 (since suit brought and since the award of arbitration in this cause) the said John Pickering and Octavius Pickering, describing themselves a$ executors of Timothy Pickering deceased, with power to sell lands by their attorn • ey iii fact 'Putnam Catlin, executed a deed foy thesffi4 laqd to Jolt Shepard the said plaintiff.
    The introduction of the deed frqm the executors of Timothy Pickering to the plaintiff, since suit brought, is to be Received as having the same force as if executed before suit brought.
    On the 2Sth July 1812 two patents issued, one to Frederick Green for one hundred and twenty-three acres pf said land, and the other to Isaac Mor ley, for one hundred qnd f}fty acres and one hundred and twenty-two perches, of said land; fn pursuance of certificates issued under an act of assembly, to adjust tfie titles to land in Bedford and Ulster townships in Luzern and, Lycoming counties, passed the 19th March 1S1Q, being lot No. 9, anc( parts of lots,.Nos. 10, 11, 12, amounting together to two hundre.cf a,n^ seventy-four acres, and one hundred and twenty-two perches and covering two hundred and twenty-seven and a half acres of-land, covered by the warrant first above mentioned, the quantity for which the plaintiff claims compensation. Green had been in posession of the part covered by his patent twenty-four years be-before suit brought, and Morley had been in possession of the parf covered by his patent twenty-three years before suit brought; and others of whom they brought the Connecticut title, had been in possession of the respective parcels aforesaid twelve years before the entry of the said Green and Morley, Abner Murray, on the trial of the cause before the arbitrators, swore, that he had been in possession of the residue of the Pickering warrant twenty-four years before suit brought; holding the same for the period aforesaid, under the Connecticut title, adversely to the Pennsylvania title, and without certificate and patent under Pennsylvar ilia.

    Part of the claim for compensation is founded upon evidence of the value of the land, as land, and part of the said claim is founded upon evidence of the value of certain water rights, and mill privileges and landing on the bank of the river Susquehanna.

    If upon these facts a verdict might legally be rendered for the defendant, then judgment to be so entered with costs of suit; if the court are of a contrary opinion, then jndgment to be entered for the plaintiff for the said sum of eighteen hundred and twenty dollars forty-four cents and costs of suit.
    The following is the agreement referred to in the special vcrr diet:
    Articles of agreement indented and made the 6th April, 1785, between Timothy Pickering of the city of Philadelphia Esq', of the first part., Samuel Hodgdonoi the same city esq. of the second part, Tench Cox of the same city, merchant, of the third part, Duncan Ingraham jr. of the same city, merchant of the fourth part, and Andrew Craigie of the city of New York, druggest of the fifth part, and Miles Fisher, esq. of the sixth part. Whereas the land office of Pennsylvania is expected to be opened on the first day of May next, for the sale of the'lands within this state, lately purchased from the Indians, and the parties to these presents, are desirous to form a company for the purchase of a considerable quantity of said lands for their joint account, in the proportions and terms of conditions hereinafter mentioned. Now it is witnessed by these presents, that the said parlies, each one for himself, his executors and administrators, doth covenant, promise, grant and agree to and with the others and the surviver of them, his executors, administrators and assigns, in manner and form following, that is to say, 1st, The said Timothy Pickering and Samuel Hodgdon, and each of them, shall furnish two eighth parts of the whole into eight equal parts to be divided, and the said Tench Cox, one. eqffal eighth part, and the said Duncan In-graham, one equal eighth part, and the said A. Craiq ie one equal eighth part, and the said Myers Fisher one eighth part of all the public certificates and securities which shall be necessary and sufficient to purchase from the said Land Office the quantity of sixty-three thousand acres of the said lands, on or before the said first day of May next; and the like proportions of so much and sufficient monies to pay and defray all other expenses that shall accrue, in the course of procuring complete titles by patents from the same. 2. That Timothy Pickering, Samuel Hodgdon, Tench Cox and Duncan Ingraham, be, and they are hereby appointed a committee of the said company, to manage the said business, in their own names, but for the use of all the parties aforesaid. And they do covenant and promise, that being furnished with securities and certificates aforesaid, they will on the first day of May next apply to the Land Office, and procure so many warrants as shall be thought most advisable, for such quantities of acres in each warrant, as will in the whole make up the said number of sixty-three thousand acres, in the names of themselves, if the rules of the Land Office will admit thereof, and if not, then in the names of such of their friends as will be forthwith willing to convey the said warrants to them; and in that case, will cause and procure the warrants, and the lands therein mentioned, to be conveyed to them as joint tenants in fee 3d. That the said committee will contract with James Potter, esq. of Pennsylvania, or some other suitable person or persons acquainted with the country, to explore the same, and find out proper places to locate the said warrants, to shew the surveyor of the district of country where they lie, and to attend at the time of surveying the same, and to procure returns thereof to be made to the Surveyor General’s Office, in order for patenting; for all which services, they shall allow the person or persons performing them, such proportion of the said lands, and to be divided to him by lot, in such manner as they shall agree upon, binding such person or persons that they shall hot be concerned in locating any other lands, until this agreement shall be fully perfected, and that if any of the said lands by him shewn and surveyed, shall be lost by means of prior location or surveys, he or they shall procure an equal quantity to be surveyed in some other place or places within the said purchases with any additional expense to the parties to these presents or any of them. 4 That so soon as the said surveys shall be completed and returned, the said committee or trustees, or .the survivors of them, shall cause to be conveyed to the said person or persons so much of the said lands, and in such manner and form as shall be specified in their said agreement. 5. That so soon as patents shall be obtained, the said trustees shall be and stand seized of the residue of the said lands, to and for the uses and purposes hereinafter mentioned, that is to say as two equal eighth parts thereof to and for thepropper use and behoof of the said Timothy Pickering, his heirs and assigns forever; as to two other eighth parts thereof to and for the said Samuel Hodgdon, his heirs and assigns forever; as to one other eighth part, to and for the proper use and behoof of the the said Tench Cox his heirs and assigns forever; one-eighth to Ingraham; one-eighth to Craigie; and one-eighth to Fisher; which said lands shall be accordingly divided into such proportions and balloted for by the said parties or their representatives, their heirs or assigns respectfully, and the lots or devisions to each of them respectively happening, shall be conveyed by the said trustees or the survivors or survivor of them to the others or their heirs in fee simple. 6th, It is expressly agreed between ail the said parties, that there shall be no benefit of survivorship among them, but that notwithstanding all the sale lands shall be vested in the said trustees as joint tenants in fee, yet all the said parties, their representatives, heirs or assigns, shall have a vote or votes, in proportion to the quantity they have respectfully held, in all the transactions of the company; and if either of them be minded to sell his share before the said division shall take effect, he shall notify his intention, with the lowest price he will take, to the company, and allow them twenty days to consider thereof, and if they refuse the same, then, and not before, he shall be at liberty to sell to others and the trustees shall make cpnveyance accordingly. But they shall not be bound to make conveyances to others, but after a previous offer to and refusal by the company. 7th, if a majority of the company, shall agree before the division be made, to sell any part or parts of the lands to any person or persons on their joint account, the trustees shall make conveyances accordingly, and the money arising from such sales shall be divided among all the parties, their executors, administrators and assigns, in proportion to their several shares herein above expressed,
    513
    S. All agreements made by the trustees in pursuance of these presents, or by virtue of any future determination of the majority <?f the company, shall bind and enure to the benefit of all the parties to .these.presents, their heirs and assigns, as fully as if they were all parties to such agreements, the vesting the said lands and the.powers herein contained in the said trustees, and their survivors, being only intended to prevent inconveniences arising from absences or deaths, when the heirs may be under age,' or incapable of acting. And for the true performance of all and singular the covenants and agreements aforesaid, the said parties and each of them, bind themselves, and each and every of their heirs, executors and'administrators, unto the other of them, his and their heirs, executors, administrators and assigns, firmly by these presents.
    In witness whereof, &c &c. . ■
    The court below rendered a judgment for the plaintiff.
    errors assigned:
    1. In deciding that the representatives of Timothy Pickering,
      survivor, &c¡ bould convey iwviolatiqn of the trust, süch a perfect title as would enable his vendee to recover in an action which necessarily works a total destruction of the estate. ,'
    2. That the plaintiff might recover compensation from the COm'm&nwealth, although he could not recover the land, by reason of an- adverse possession of thirty or forty years.
    3d. That the jm'y could not legally presume a release or an abandonment in support of a possession of thirty-six years.

      E. Lewis, for plaintiff in error.

      Willistón-, for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

Granting forthe sake of the argument, what"we do not decide, that the right of action was in Timothy Pickering, as surviving trustee, and subsequently in his executors, the question is whether it can have been transferred to the plaintiff, not by.an open and direct assignment, for that will not be pretended, but incidentally, by a conveyance of the land for which compensation is demanded? Under a conveyance in 1830 from John Pickering, the heir, at law, and another in 1831 from the executors of Timothy Pickering, the plaintiffsues for compensation in the character of a Pennsylvania claimant of land certified and patented to Connecticut settlers in 1812, when undoubtedly the right to demand compensation by action, existed complete in those who were the owners at the time. According to a principle of the common law, a naked right of action is not assignable; and the principle is peculiarly applicable to a right of action against a sovereign, which is a personal concession. The state certainly never intended to make these rights, a subject of traffic, or to subject herself ,to(an action by those whose personal responsibility might be an. inadequate security for. the costs. Unless then, there was an estate in the Pennsylvania claimant, .undivested, by the adverse certificate and patent, nothing could passbyNis conveyance. Strictly speaking indeed, a right of action, perfect at the time, does not pass even as an incident of the estate; as for instance an action of trespass, which must be brought by him who was the owner at the time of the injury. An instance more in unison with the case before us, would be the asr signment of an action for the breach of a warranty, by a conveyance of the evicted land. But not to insist on that, I should deem the case not only a plain one on principle, but as being unattended with any particular difficulty in point of authority, were it not for the decision in Evans v. The Commonwealth, 2 Serg. & Rawle, 441, which it is necessary to encounter.

There it was assumed, that the divesture of the title is incomplete before compensation actually made, and that the measure of it is the value of the land at the trial, and not at the time of the eviction; and these propositions being the converse of each other, are in effect the same. The case differed from the present in this, that compensation or the means of obtaining it, was not provided for seve^ ral years ; and this was viewed as a material circumstance, as it would have been viewed below, had it not been considered that the design of the legislature in subsequently giving an action, was to remove the well grounded complaints of the Pennsylvania claimants, whose titles were posterior to the Decree of Trenton, in putting them, by relation of time, exactly on a footing with those whose titles were prior to it; and that such claimants were bound to talce the remedy on the implied, but necessary condition, of not contesting the legality of the previous proceedings, or claiming to. be put on more advantageous ground than were their fellows, whose titles had been indisputably divested. As a ground of decision, however, the want of a provision for immediate compensation was. ultimately abandoned for the broad ground of imperfect divesture, till compensation actually had; and this latter ground was necessary to the decision, under the circumstances of that case, as the conveyance, by force of which the plaintiff was suffered fo recover, was still subsequent tathe act by which the action was provided; and in that aspect the original withholding of the remedy could not affect the question: consequently it was decided on ground which, is common to all cases under these acts.

An intent to refer the question of divesture and value to the period of the trial, was thought to be inferrible from two provisions in. the acts themselves, as well as. from the nature and fitness of the thing. In the first place, compensation is directed to be assessed “without taking into view any improvement made thereon;” and these words were understood.as specially referring to improvements, made between the certificate and the trial. Had improvements not been made by the settler previous to the certificate, the inference, that the words were inserted to prevent the Pennsylvania claimant from obtaining compensation, by virtue of a supposed abiding ownership for improvements subsequent to the certificate, would have been a plausible one, as they would have had no other subject for-their operation. But it is notorious, that the lands had been improved by settlers under Connecticut for half a century; and the clause was evidently introduced to prevent the Pennsylvanian from claiming for the settler’s labor previous to the certificate, and not to provide for the infinitely less important subject of improvements between the certificate and an action that was expected to follow; and a. vast majority of cases did follow, hard upon it. That this was in, truth the object, is well known to those who are acquainted, with., the hiátorj1, of the controversy, and the legislation it occasioned. Another provision, particularly relied on', is the requirement of 'proof by the claimant “that he is fully, fairly, and exclusively'entitled to the land under the Commonwealth, except as against the person or persons claiming the same by virtue of á certificate or patent granted Under the authority of this act; and from this it has -been thought, that though the settler may hold under his certificate and patent against all the world, the Pennsylvania claimant is nevertheless entitled, by virtue of his primitive ownership, against every body else. 'According to this hypothesis, two distinct and’available titles to the same estate, or rather two distinct and available fee-simple , estates'in the same land, are supposed, to exist at the same time in different persons- — a state of things, which, if it’were. practicable, it certainly was not the object dr the policy of the legislature-to encourage. ' Unless the proceedings under the divesting provisions were an usurpation, and the patent void, the estate of the Pennsylvanian would ’be a barren one, unless in the single' event of a failure of inheritable blood on the part of the settler, and then the land' would escheat, not to the'Commonwealth, but to the Pennsylvanian— a consequence that no one will pretend would follow. As to his hopes of being eventually permitted to recover the land from the settler,' after the latter had paid 'for it, on the guaranty of the state, that would involve such a breach'of the public'faith, as to put every hope of any thing but compensation, out'of the question. For what purpose, then, can the legislature be supposed to have suffered the Pennsylvania title to remain?. Not to keep up the original irritation betwixt the Pennsylvania claimants and the settlers, by preserving the cause of it, in order to' frustrate the main'design of the act — the pacification of the country. ‘ The supposition is more-over drawn, not only from aliteral interpretation of the v ords, but in opposition to the evident object of the clause, which was to provide for conflicting pretensions under Pennsylvania, the plaintiff, being" bound to prove himself exclusively entitled at, the time of eviction, in order to secure the compensation to the true owner. In Miller v. Dwilling, 14 Serg. & Rawle, 442, á similar construction was attempted to be made of the act for the gradual abolition of slavery, in which it is provided that “every negro or mulatto child, borrf within this state, after the passing of this act, who would, in case this act had not been made, h.ave been born ¿ servant for life or a slave, shall be deemed to be, and shall be, by virtue of this act, the servant of such person or his assigns, who would in such ’ ease have been entitled,to'the service of súclr child, unto the age of' twenty-eight'years; whence an attempt to hold to servitude th.a child, notbf a slave, but of a servant till, twenty-eight, onthe pleaj ■ that but'for tide act in question, it would liave'b.een born a slave, because the mother would have been á slave. But it iva? determined, for convincing reasons, expressed by the Chief Justice who delivered the opinion of the court, that notwithstanding the literal and positive import of the words, none but the child of one who was actually a slave at the birth, could be held as a servant. So, notwithstanding the clumsy language of the legislature, the word “is” having been put for the words “would have been,” it is equally clear that no one was intended to be brought within the purview, who was not the Pennsylvania owner at the time of the certificate. The special provisions of these acts, then, leading to no definite conclusion in respect to the particular question, it is left to general considerations, arising from the nature of the proceedings.

By the constitution, no man’s property “shall be taken or applied to public use without the consent ofhis representatives, and wit'h-out just compensation made;” and, in accordance with this principle, the legislature has directed the compensation in cases like that before us to be just. On the principle of the common law, that performance shall be taken to have been perfected as to him whose negligence or refusal to accept prevented it: compensation is made, within the meaning of the constitution, whenever it is tendered. Unless the divesture were complete when the land was granted to the settler, and compensation tendered to the Pennsylvanian as assessed by the commissioners or to be assessed, at his election, by a jury, the patent could not constitutionally have protected the former from the title of the latter, and the proceeding would have been a mockery. Was it not complete, then, when an immediate right of action was given for it, whjhh would have been nugatory without a cause of action existing? If the origin of this cause of action is to be referred to the time of embracing the remedy, by the election of the claimant to consider himself for the first time disseised, then no divesture of title could be made without the consent of both parties, and private property could not be taken for public use at all, if the owner should persist iq refusing compensation. Such a principle would not only put it in his power to defeat the constitutional provision altogether, but give him the unreasonable advantage of choosing his time, and recovering according to the enhanced value at the time of the action. ' But the constitution and the legislature have directed a just compensation, which, it is supposed, can necessarily bemade but in reference to the value at the trial; for it was remarked; “If my land is to be valued according to the usual price ten years ago, and in the mean time the usual price has risen fifty per cent,, it is clear, that to pay me according to the price ten years ago, is making me but one half of compensation. ”

Nothing ever came from the author of this remark, without a Strong claim-to respect, and consistently with that, it is fair to say, that the very matter in controversy seems to have been assumed; for it cannot accurately be said that my land has risen in price, if it ceased to be mine before the beginning of the rise. Taking the title to have been divested ten years before, to have valued the land according to its price at the trial, would have been as unjust to the stale in the event of a rise, as it would have been to the claimant in the event of a fall. It cannot be supposed that the legislature intended him to boar a loss from depreciation; yet that would be inevitable, on the ground assumed. It is the value at the time of eviction that is material to the question; and it seems to me the principle of compensation for a covenant of warranty broken, is strictly analogous, and bears directly on the present case. That the measure is the value at the time of the warranty, results, not from the agreement, but the law, settled as it is, on the abstract principles of justipe'and the fitness of things, the value of the land at the particular time and not the time itself, being dependent on the terairof the contract. And the principle seems to be of universal application. In the Schuylkill Navigation v. Thoburn, 7 Serg. & Rawle, 411, the standard of compensation for a statutory licence to flood the land of an adjoining occupant, was deemed to be the value of the injury at the moment of its complete developement, and consequently without regard to an increase of it, by reason of a rise in the value of the land. The measure of damages too, for not delivering goods purchased, is their value at the day specified for delivery and not afterwards. Meason v. Phillips, Addison’s Pep. 248. Edgar v. Boies, 11 Serg. & Rawle, 445. The application of the same principle to the time of divesture, in a case like the present, can scarce be doubted; apd that time would seem to be the period when the claimant and the state first assumed the attitude of vendor and vendee, qr disseisor and disseisee. Notwithstanding, then, our sincere respect fo.r the admitted learning and ability of the judges by whom Evans v. The Commonwealth was decided, we are constrained to say, the remedy for compensation is personal, and not to be assigned directly or indirectly. No one pretends to suspect, that the conveyance was designed to operate on what was ostensibly to be the subject of it; and to suffer it to operate as the assignment of a mere right of action for the compensation given in lieu of the land, would be contrary to a maxim of the common law, qziod fierivetatur per directum, vetatur etiam per obliquum. The interpretation' may have been influenced by the extreme hardship of' the confirming acts as regards the Pennsylvania claimants, which I can duly, appreciate, having been among the suffers. But the principles of the law seem to point to a different conclusion. , Had the rule of that case become a rule of' property, I would have been the last man in the world to disturb it, but we are not aware, that any case has arisen, in which it would have been followed as a precedent, and there seems to be little danger of retroactive inconvenience, from the substitution of a different one. We decide no more than that compensation cannot be recovered in the name of the present plaintiff; but whether an action may not be maintained in the name of the grantor’s executors, is a question which it is at present unnecessary to decide, and about which we intimate no opinion.

Judgment of the court below reversed and judgment here for the defendant.


author: Rogers, J.

text:
    JACKSON against PURDUE.
    A Justice of the Peace, who has entered two judgments in the same suit, is not entitled to two trial fees, if on the first day of entering judgment the defendant was not present, and the plaintiff was willing to continue the case: the utmost limit to which his right could extend would be to demand compensation for investigating the plaintiff’s claim and entering judgment by default, for which the fee bill allows but twelve and a half cents.

      Quere, if a justice who enters a judgment by default which is opened fora rehearing and defence made, and a new judgment entered, is not entitled to two judgment fees.
    Where a justice charges illegal fees which are endorsed on the execution and collected by the constable, the justice is liable for the penalty although they are not paid over to him.
    *The act of 28th March, 1814, notwithstanding it inflicts a penalty for taking illegal fees, is a remedial act, and as such should receive a liberal construction.
    It is not necessary for the justice to make a regular tender of amends, if the other party, by his conduct, dispense with it, by a previous refusal to accept.
    Writ of Error to the Common Pleas of Centre county.
    This was an action of debt brought before a Justice of the Peace of Centre county, by John Jackson against Edward Purdue, Esq. a Justice of the same county, to recover the penalty of fifty dollars imposed by the act of 28th March, 1814, on any officer demanding or receiving illegal fees; and was removed by appeal into the Court of Common Pleas. On the trial in the court below, James M’Manus the attorney for the plaintiff, testified that on the 14th of February, 1831, he served a notice on Edioard Purdue the defendant, setting forth the plaintiff’s cause of action. That on the 25th of that month, the defendant, Purdue, called at M’Manus’s office, who informed him, he had charged James Jackson too much costs by at least thirty-seven and a half cents, that Purdue then tendered thirty-seven and a half cents in silver which was refused by M’Manus as being insufficient amends.

      John Barr sworn. This execution, Tasker Knox, v. James Jackson, I had in my hands and collected the money on it. I afterwards saw Purdue and wanted to return the execution and pay his costs, and tendered to him all that was coming td him by the endorsement on the execution. Thé twelve and a half cents for receiving the money, he would not have and said it was mine, but I refused to take it. I told him I had collected it off Jackson, and unless he Wpuld take italong with the rest, I would not pay him anyo'f hiscosts-i I shewed him the fee bill, arid tried to satisfy him I was not entitled to that twelve and á half cents. He said, if the money had been paid to him, the twelve and a half cents would be his, but as it was, it was mine. I shewed him other executions but he could not be convinced. I have seen Purdue write, and believe the execution to be in his hand-writing, as are all the endorsements on it except my costs. I have all the costs yet, as I would not give him a part, unless he would take the whole. I was the constable of Spring township.
    The following bill of particulars of the costs on the execution was read:

      Tasker Knox v. James Jackson.
    Summons, seventeen cents; constable twenty-twb,' cents; judgment, twenty-five cents; [opening-judgment for defendant, eight cents, judgment, twenty-five cents; special-bail, eight -cents; execution and return, twenty and a half cents; satisfaction, six and a half cents; paying over if paid to Justice, twelve and a half cents; twelve and a half cents Constable’s costs, if not paid to Justice.
    This was the entry on Justice Purdue’s docket.

      Tasker Knox v. James Jackson.

    ■ Summons 20th day of May to appear 26th, served by copy on oath of Constable-. Plaintiff appeared, defendant’s son appeared, and alleged his father was not at home. .after hearing judgment forplain tiff.' 12th June defendant appears, requests the judgment opened for a rehearing; appeared Saturday the 19th, and after hearing judgment as before. July 5th, P. Benson, special bail, 21st December execution.
    The same costs taxed as in the bill of particulars, except the two last items of the latter, which were not on'the docket.
    It was also shewn that on neither of the days of appearance before the justice, were, any witnesses sworn' or examined on either-side, nor were’any books of accounts produced. That on the first day, the defendant bein'g absent, the plaintiff at the instance of dm defendant’s son, consented tó a continuance, which was''disregarded by the justice, who entered a judgment in favor of the plaintiff.
    That on the second day the plaintiff exhibited-a statement'of his claim that he had drawn up, which was:disputed by'the defendant; that Justice Púrdue, after looking at it, saidhethoughtitali right.
    On behalf of the defendant it was proved, that Jackson in- company with Barr, the constable, called on Mr. Peirikin the Attornéy of esquire Purdúe who told Jackson that he was authorized to give whatever was right to compromise the matter. Jackson complained that twelve and a half cents too much, was charged on the execution. He was asked by Mr. Peirikin if half a dollar would satisfy him for this. Jackson replied he Would have nothing to do with it. A dollar was next offered, which not being accepted, he Was told by Mr. Petriken that he would give to him, Jackson, now, any thing that he would ask that was reasonable. The latter replied, that the matter Was commenced and should go on. As he turned to go away, Mr. Peirikin said to him, perhaps the 'attorney^ fees are necessary, I will give you that too.
    The court below charged the jury
    That in this ca'ée, if the defendant’s own witness Tasker Knox is believed, and that he agreed to a continuance, he was not entitled to two trial fees. No witnesses were examined, no person sworn; there was no trial. He had no right to tax a trial fee for the first day, and the tax of twenty-five cents Was illegal. The charging twelve and a half cents for receiving the money was illegal. That he has charged fees which were not authorized by the 26th section of the act of the 2Sth March 1814, is in the opinion of the court manifest.
    The next inquiry is, is the offence complete before the Justice has received the costs? This brings us again to the consideration of the 26th section of the act of the 2Sth March, 1814.
    1. If the officer shall take greater Or other fees than is herein before expressed and limited for any service.
    2d. Or if any officer shall charge or demand and take any of the fees herein before ascertained, where the business for which such fees are chargeable, shall not have been actually done and performed.
    We hold in this case, that the words charge or demand and take, means charge and take, or demand and take, to bring the officer within this clause.
    3 Or if any officer shall charge or demand any fee, for any service other than those expressly provided by this act, such officer, shall forfeit and pay to the party injured, fifty dollars.
    The inquiry in this case.is were the fees taken?
    The act is a penal one, and is tobe construed strictly. The facts disclosed are to bring the defendant’s case within the first provision of the act; and as we think, a payment to the constable is not a payment to the Justice, and a taking by him, it is the opinion of the court, the offence was not consummated until the fees were actually received by the Justice. The tender by the defendant was incomplete, and not in accordance with the law. An offer to do this or that, is-not a tender; it should be the producing and offering to pay a specific sum of money.
    'Die plaintiff’s counsel excepted to the charge, and assigned for error.
    1 The court erred in instructing the jury, that a taking and receiving of fees by the Constable, was not a taking and receiving by the Justice.
    2. The Court erred in instructing the Jury, that the offence was not consummated, when the Justice charged, demanded and issued his execution for the fees for services which had not been actually done and performed by him, viz: the six and a fourth cents for entering satisfaction, and the twelve and a half cents for receiving the money.
    ■ 3. The Court erred in instructing the jury, that the offence was not consummated' until the fees were actually taken by the justice, although they were actually taken and received by the constable from the plaintiff in error.

      Potter for the plaintiff in error.
    In this case the fees were taxed by the Justice, and endorsed according to law on the execution, and the same delivered to a con- . stable, who collected the money; and although this was not paid over to the Justice, yet that fact is immaterial, the illegal fees having been extorted from the defendant,rby the order of the Justice. The trial fee of twenty-five cents should not have been taxed by the Justice, no such service having been actually done and performed. ¿let of 28th March, 1014 sec. 26. Furdon’s Digest 311. He cited 17 Serg. fy Raiole, 75. Coats 4’ Wallace, 5 ■ Serg. fy Raiole, 48. Priori. Craig, ibid. 518. 13 Serg. fy Raiole, 423. Bates v. Shaw. 12 Serg. <§- Rawle, 145, Miller v. Smith.

      Petriken for the defendant in error.
    The execution ib not imperative, nor is a receipt of the money bn it by the constable a receipt of illegal fees by the Justice, for the execution may be set assi.de on certiorari, on the ground of the illegality of the fees. A mere demand is not enough to constitute the offence, for the law says demand and take. The proof is, the Justice refused to receive the twelve and a half cents, so that as to that, he made no demand for it for himself. Nor had any of the fees, in the execution ever come to the Justice’s hands. In usury or extortion there must be an actual taking, 5 Bacon ab. 412, Old Ed. Title, Usury. 1 Dallas 216. 10 Mass. 210. 17 Mass. 410. Lincoln v. Shaw.

   The opinion of the court was delivered by

Rogers, J.

'The legislature have shewn great anxiety to restrain officers from charging or taking illegal fees, as appears in the twe»tysixth section ofthe act of'2Sth of March, 1814. There is another class of cas&s, to which the act applies. The Justice is prohibited from ta- ' king greater or other fees than those expressed or limited in the act: from charging or demanding and taking anyffee, when the business for which the charge is made, has not been actually performed: and from charging or demanding a fee for services, unless the services are expressly provided for by the act. If the plaintiff consents to a continuance, the justice is not entitled to two trial fees. The utmost extent, to which his right would extend, would be to demand compensation for investigating plaintiff’s claim, and entering judgment by default, but for this, the fee bill allows but twelve and a half cents. Here the Justice has charged twenty-five cents. If the act does not allow him to charge two judgment fees, the case comes within the third class; and then, ‘charging the fee, without more, subjects the Justice to the penalty, because he would charge a fee for services, not provided for by the act. I incline, however, to believe, that the Justice may charge, in some cases, two judgment fees; as suppose, a judgment by default, opened for a rehearing, and judgment again rendered, on trial, a defence having been made by defendant.' This case comes within either the first ox-second class. If the penalty hasbeen incurred, itisbecause the Justice has charged and taken a fee, where the business for which the charge is made, has not been actually performed, or because he has taken a greater fee, than the fee bill allows. And whether it falls within the first or second class, the question is the same. It will be observed, that the charge was made by the Justice and endorsed on the execution; that the fee charged was collected by the constable but has not been paid over to the justice. Is that a taking by the Justice? we think it is. The object of the act was to shield debtors from oppression, and particularly to guard against compensatory fees to officers. The penalty is given to the pax-ty injured, and whether the charge is made ignorantly, or oppressively and fraudulently, isjimmaterial. The penalty is incurred by the fact of talcing, in the two first classes, or by the act of chargingth e fee in the third. I agree that to incur the penalty in the second-class, the Justice must charge and take or demand and take afee for services, for which he has a right to charge, but where the services have not been actually done or performed. So that, whether the offence fall within the first or second class, the question turns upon the point, whether there has been a taking, within the meaning of the act. There is no doubt, the Justices made an illegal charge, and so the court instructed the jury; but it has been argued, and so the court ruled, that the offence is not consummated, because the constable, and not the Justice received the fees. The act of Assembly, although it inflicts a penalty on the Justice, is a remedial act, and as such should receive such a construction as to carry into effect the intention of the Legislature, provided it may be done without doing violence to the words of the act. The constable acted in obedience-. to a warrant of the Justice, under process placed in his hands by the Justice. The injury is the same to the defendant, whether the tice received the illegal fee or not. The debtor has been compelled to pay an illegal fee, by authority derived from the Justice, and is entitled to the penalty. The act not only operates as a punishment upon the Justice, but serves to remunerate the debtor for the wrong done, by the illegal seizure and sale of his goods. The com stable is something more, as regards the collecting of1 the illegal fees than the agent of the Justice: he is the officer of the law, and as such, bound to obey its mandate, without a nice enquiry into the legality or illegality of his charges. And if he were the agent, merely acting under the command of his principal, it would be an1 illegal taking. The third section of the fee bill speaks of lees, taken by the sheriff. It would be a narrow construction, to say) tbat.jllegal fees., levied upon a defendant by a sheriff, through hjs.deputfts, does not subject him to. the penalty,'although at the time of suit they may not have been actually paid over to the sheriff,' I speak of those cases where the deputy acts in obedience to the commands of the sheriff. Unless we give the act this construction, it Igaves the debtor, without any effectual remedy fop'an injury, whit® as it is against me laws, maybe of the most oppressive kind. Therffwould be danger of collusion between the Justice and the constable. It would in snipe cas.es, be difficult for the party agrieved to know when to bring suit. Success would depend upon his shewing that the money had been actually received by the Justice. If suit were delayed, arising from the uncertainty yvhich would_ be produced by such a state o.f things, th.e Justice might protect himsélf by the act of limitations, and which, in favor of Justices, is but six months. Ns Justices may sometimes inadvertently commit errors, the law enables them to, protect themselves, by tender of amends, of the sufficiency of which the jury is to, judge. If the testimony is worthy of credit, th.e Justice was anxious to make amends, but was prevented from doing so by the unreasonable conduct of the plaintiff. On a second trial, it may be worthy of enquiry, whether the plaintiff has not dispensed with the tender. It is very true, as was stated by the court of Common Pleas, that the mere offer to pay money, is not, in legal strictness, a tender. 2 Dal. 1&0, But if a man is bound to do, a thing, he must either do it, or offer to do it; if no objections are made, he must shew that he made the tender in' a regular manner; but thjs isi not necessary, if the other party by his conduct dispense with a regular tender, by a previous refusal to accept it, 1 Peter’s R. 24, Blight v. Ashley et al. Where the Justice shews himself willing to make amends, and makes a specific offer; (he least the other can do is to make known his objection, if he have any, and to inform the Justice what compensation he expects. But if instead of doing this, he walks off, and declares he will have nothingto do with it, that the law must take its course, it is difficult to» imagine for what good purpose the law should exact, what under, the cirumstances, would be useless, a final and regular tender.

Judgment rgverged £ujd a peitfre de novo awarded