text:
    JAMES M'CONAHY against The CENTRE and KISHACOQUILLAS TURNPIKE ROAD COMPANY.
    Satisfactory proof of the loss of a written advertisement must be given, to lay a ground’ for the admission of the advertisement copied into the newspaper,
    A charter of incorporation cannot be declared void in a - collateral- suit, it can only be vacated by a scire facias to repeal it; or on a writ of quo' nvarranto,- at the suit of the commonwealth.
    An agreement between commissioners authorised to take subscriptions of stock, that a certain number of shares of fictitious stock shall be subscribed, iu order to enable them to obtain a charter,- is a fraud upon the bona fde subscribers, which will relieve them from any obligation to pay.
    A declaration made by a third person, in the presence of the commissioner, to one about to subscribe for stock, that he can pay his subscription in work, and this not objected to at the time by the commissioners, must be taken as his declaration; and there is no distinction between the commissioner and the corporation, in regard to this promise. :
    Writ of error to the special Court of Common Pleas of Mifflin county.
    This suit was brought by the President, Managers and Company ' of the Centre and Kishacoquillas Turnpike Road Company y, James

      M‘Conahy, to recover the amount of stock in ' said company subscribed by him, and which had been called in by resolutions of the said company.
    The whole case appears so fully in the opinion of the court, tha.t ,-any other statement is unnecessary.

      Fisher and Blanchard, for plaintiff in error.

      Wilson and Potter, for defendants in error.
   The opinion of the court was delivered by

Smith, J.

This case again comes before this court for decision, and I regret that we are a second time under the necessity of reversing the judgment of the court of Common Pleas. It was an action of assumpsit, brought by the defendants in error, against the plaintiff in error, the defendant below, for the amount of his subscription of five shares- of fifty dollars each, to the stock of the Centre and Kishacoquillas turnpike road company. On the trial of the cause, after the plaintiffs below, had given some evidence in support of their action, they offered in evidence a newspaper, called the “Juniata Gazette,” of the 20th of November, 1821, in which there was an advertisement, purporting to have been signed by the defendant, with six others, calling a meeting of the stockholders, to hold an election for officers to organize the company, for the purpose of showing that James MConahy had accepted the charter, and had acted under it. To the reading of this paper, the defendant objected; the plaintiffs then called William Mitchell, who proved, that he had printed the paper, and had regularly issued it; that it was not his custom to preserve origi- - nal advertisements, and that he never did preserve them: that he 'had told the defendant be had not the original, nor any papers among which he could look with any hope of finding it, that he thought the old papers of the office were destroyed among waste paper, shortly after the publication; and that some of the advertisements he had taken from the Bellcfonte paper; but could not say as to this, nor that it was, or was not, copied from the last mentioned paper: that if he copied it from a written paper, it was either destroyed or lost, but that he had not hunted for it, as he had no place he could look with any prospect of finding it. He also proved, that the defendant was one of his subscribers, and took his paper at the time. The defendant, however, still objected to the reading of the paper, alleging there was to proof, that the defendant had signed it, or authorised it to be printed, or knew any thing of the transaction, that the original should have been produced, or its loss proved; and that the seven first commissioners should have given the notice, not the seven first subscribers. The court overruled the objections, and admitted the newspaper in -evidence. An exception was taken to this opinion of the court, ■which forms the first error complained of.

The question was, whether James MConahy .had signed the .advertisement, or authorised its publication. If it had merely been, whether he had notice of a fact published in the newspaper, the fact of his taking the paper, in which it was published, might have been submitted to the jury; but, I take it, that in this case, the • original paper, signed by the person, ought to have been produced, or its loss proved, and if its loss had been legally proved, .then proof .that the defendant had signed it, or proof, that he knew of .it, and had agreed, .that some other person should write the advertisement and put his name to it, would have been sufficient. But the .evidence did not prove the fact, that the defendant had advertised, or sanctioned the .advertisement; indeed, there was no legal evidence to •show, that due diligence had been used to procure the original, .or to account satisfactorily for the want.of-it, in truth, the witness said he had not looked for it, as he had no prospect of finding it. This was not a sufficient reason to -supercede the necessity of a search, and a diligent search might have been successful. The defendant moreover was not one of the commissioners, he was only .a subscriber, and.as such was not entitled to,advertise; the commissioners alone were directed to perform this .duty. See Pamp. Laws of 1821, page 75, and Pamph. Laws of 1826, page 349. We .therefore .think that the admission of the newspaper was wrong. The decision in the case of Sweigart v. Reisinger’s Administrator, 14 Serg. & Rawle, 203, on a similar point, goes far to determine this .part of, the.case.

After the plaintiffs had.read the advertisement to the jury, they gave further evidence to prove, that the defendant had constituted . a proxy to vote at „the first election of .the company for officers.; they also proved the-, amount of the cost of the road, and its annual toll, and themrested their-cause.

The court permitted the plain fifís to prove by one of the commissioners,-that he saw the defendant sign for his five shares, at Mr. Reynolds’.tavern, that the commissioners had-obtained all the stock they could,.after the act of 1821, called .the general appropriation act, had passed, giving this road twenty thousand dollars. This witness also proved, that he had calculated the .probable expense of the road,, and was satisfied, that-they had a sufficient sum subscribed, taking in the twenty thousand .dollars from-the State, or perhaps more; .that thereupon.the commissioners met at Kerr’s, at which meeting,.all or nearly all were present, and the calculation laid before the commissioners, and they were, all of opinion, that no more stock could be obtained, but that with the State stock, they would have enough: that it was debated, whether they should get the amount of individual stock reduced, or get the amount required by the act, by addingfictitious stock, so as to obtain the charter, and enable the company to go on. The commissioner then filled up the (certificate, or in partsigned.it in blank, .when the other commissioners took it, and were to get it completed, and this was the last act the witness did, in relation to the company, except paying Lock. The witness also proved, that he saw a subscription of the board in a book of fictitious stock, and that the first suggestion of taking fictitious stock, was in Lewistown. There were from two hundred and ninety to three hundred shares of good stock, about half the amount required. The act of assembly required six hundred shares, before a charter could be obtained. The witness declared they were right in their estimate; for the good shares were-amply sufficient,- with the twenty thousand dollars to make the-road. He could not say, that he ever told the defendant that three hundred shares would be enough, but he often had repeated the declaration. 'Onhis cross examination, the witness said, “there-was no other commissioner but myself present,” (when Mr. Reynolds took pains'with Mr. MConahy to induce him to subscribe,): “ he took more pains with him, than I did; I put him more particularly under his care.”

The defendant also proved, by another witness, that while he-was taking stock in 1821, with the commissioner, he was anxious-to have stock taken, and that he was requested to speak to the defendant for this purpose; that he did so, and took him into the-room, in which the commissioner was; that the defendant refused to subscribe, and that then the witness urged as a means to induce the defendant to subscribe, that he could pay it in black smith work, that the defendant had before refused, alleging he was not able: that he prevailed on him to subscribe, he believed by holding out the inducement of paying in work; his treaty with the defendant was in the presence of the commissioner, who, however, did not say any thing, and was not appealed to. Being cross examined, the witness could not remember the manner he had pointed out, of the defendant’s getting the work, but that he had referred to his labour, as a means of getting money to pay, and said it would be their interest to collect in work, that there was no stipulation by the commissioner, that the company would take work; the matter was principally left to the witness.

This closed the testimony on both sides, when the following points were submitted to the court by the parties, to- wit, the plaintiffs requested the court to instruct the jury:

“ 1st. If the jury believe that the defendant advertised, as one of the first seven stockholders named in the charter, for an election, signed a proxy and voted at the election by proxy, on the 3d of December, 1821, it would be conclusive evidence, in point of law» of his acceptance of the charter, and the plaintiffs would be entitled to recover. •
“ 2d. That the act of the 10th of April, 1826, and’ of the 1st of April, 1823, validates the subscription of the defendant, and places him in the same situation as if no fictitious stock had been-obtained.
“ 3d. That even if the stockholders would take advantage of the fictitious stock, yet the defendant by his acts of voting by proxy, advertising, &c. cannot now set' it up as a defence in this suit.”

The defendant requested the court to instruct the jury:

“ 1st. That if they believe M‘ Conahy,^the defendant, did not know that fictitious stock had been certified to the governor, .when he gave his proxy to James Milliken, then that proxy cannot' affect the defendant.
“ 2d. If the jury believe, that the advertisement, for the election for managers, of the first seven subscribers, was done without the agency of James M‘ Conahy, the defendant, but by other persons using his name, then this advertisement cannot in any way affect him.
“ 3d. Ii James 'M Conahy was induced to subscribe five shares of stock, for which this suit was brought, under the promise of paying in black-smith work and other work, the plaintiffs should- have made a demand of this work before they could sustain this suit.
“4th. That if the jury believe, at the lime M Conahy subscribed his five shares, and at the time the advertisement for the election, and at the time he gave his proxy to Milliken, he was ignorant that fictitious stock was certified to the governor, the plaintiffs are not entitled to recover.”

These points -were generally answered by the court in their' charge to the jury, which was as follows, to wit':

“ It appears to me, that the three following questions are pre-sented in the investigation of this ca'use.
“ 1.. Was the charter accepted and confirmed by defendant, if so,, he cannot now gainsay it.
2. If not accepted or confirmed by defendant', was the admis-síon of the fictitious signers of stock, by -the commissioners, a fraud-upon the defendant.
“3. Was the subscription of M‘Conahy obtained' through fraudulent representations, sanctioned by the agent of the company!
“By the act of 1821, for the erection of this company,-Mr.Burnside and others, were appointed commissioners to receive subscriptions, so as to enable the subscribers for stock, to obtain a charter of incorporation. The leading public object was to Have a turnpike road made from Brown’s mills to Bellefonte. It' may have been a private object with the subscribers to vest their money in a fund that, besides contributing, to the completion of the road, might furnish them an annual interest’. The commissioners were as well agents for the public, as for the subscribers. It was, therefore, a duty imposed by interest 'on the subscribers,-to attend'to the transactions of the commissioners. The act of assembly was directory upon the commissioners, and they had no legal ability to do any thing contrary to the'provisions of the act. No charter could have-been demanded until all the provisions of the act were complied with; and the subscribers could not be prejudiced by any act of the commissioners, contrary to law. The charter was to be procured from the government, for the benefit of the subscribers, not for the benefit of the commissioners. If the subscribers procured their charter without an exact compliance with the provisions of the law, it was not for those who procured it to complain. The government from-whom it was obtained might or might not repeal it at their pleasure. So long as the charter exists unrepealed, and more particularly since the original defects have been expressly waived by the government, by a positive act of assembly, it cueists legally, and is of full force and effect according to its import. The company has a legal right to sustain a suit in their corporate name, and upon the trial, now in progress, on the pleas and issues upon the record, the validity of the charter cannot be enquired into. The court and jury arc bound to give effect to the contracts of the corporation, and to the contracts in subscribing for stock, made before the date of the charter; so far as such contracts were fair and honest, and did not fraudulently affect the interests of such subscribers. If the commissioners did any act contrary to their legal duty, after James MConahy subscribed for five shares of stock, without his knowledge or assent, to hi’s prejudice, it would avoid the obligation of his engagement to pay. Two acts are complained of by the defendant as having this effect. First: It is complained'that instead of obtaining the subscription of six hundred shares, before a charter was obtained, only three hundred good shares were obtained; and in this way it said the defendant was prejudiced. If MConahy had no knowledge of such fact, and he never assented to it directly or indirectly, and it was in prejudice of his rights, his subscription was not binding upon him. But supposing him to be wholly ignorant of the facts in relation to the fictitious stock, and the fact of the charter being obtained upon it, wras he prejudiced by it? It is as well a presumption of the law, as the testimony in the case — that it wras supposed that the full amount of the bona fide’ subscriptions, together with the State money, would be required to complete the road. And from the terms of the subscription, it was Indicated that the subscribers were Bound to pay fifty dollars on' each share by them respectively subscribed. There wrere two' objects the subscribers probably had in view; one the completion of the turnpike road, the other the vesting of their money in a pro-ductive fund. From tlic testimony it appears that the first object has been fully effected, for the road has been long since made, and the company been in the receipt of tolls for the whole distance. The second object may have been advanced rather than injured by the contrivance of certifying the fictitious subscriptions. Because if six hundred shares had been subscribed at fifty dollars- a; shares added to- the State stock of twenty thousand- dollars, it would have amounted to fifty thousand dollars; while three hundred shares at fifty dollars,-with the State stock, amounted to thirty-five thousand dollars; if the whole money had been received and expended, as is generally the case, in the one event, the defendant would have drawn his dividend in the proportion his stock bore to fifty thousand dollars; in the other, in the proportion it bore to thirty-five thousand. It is left to the jury to say, whether under all the evidence, the facts in relation to the fictitious stock injuriously affected the engagement of the defendant under his subscription;- without-his knowledge or assent, directly or indirectly; if so, it would absolve him from his engagement. Where companies have plenty of money they generally spend it liberally; where they have little,, it often induced economy. It can hardly be doubted that the principal and leading object of the subscribers was to effect the com-pletion of the turnpike road contemplated. We have it in proof,that after earnest attention to the business, and every diligence' used, the commissioners could only obtain about three hundred shares of stock to be subscribed, and the act of assembly requiring six hundred before a charter' could be had, they were at a stand, they could not move a step further. The great object of the subscribers was likely to- be defeated, and it was only by the expe-dient resorted to of filling up the list with the names of persons unable' to pay, that the charter could be had, or the great work effected.Although as between the government and the subscribers, the expedient resorted to may have been exceptionable, it appears to me it was manifestly for the advantage of the subscribers; indeed it was the only way the commissioners could devise to effect the object at all.The subscribers accepted the charter so obtained; the company was organized, moneys collected, the road made, toll gates-erected, and the company now in the receipt of tolls; and the-government confirmed the charter, on their part waiving all objections on account of the irregularities alluded tp. How, then, was the defendant injured in the affair? lie subscribed for five shares. His subscription imports an unconditional obligation to pay the whole, if required. There is no condition precedent expressed in it, and the idea was not held out by the commissioner,as he stated in evidence, that less than the whole would be required.The rpad was sooner made, and it. is said to be well made, and very probably made for less money, by the expedient resorted to,than if the whole six hundred shares had been subscribed by solvent stockholders. I do not, therefore, see so plainly h¡ow the defendant was' injured or exposed to injury in this transaction, and if he was not, I see no reason he has to complain.
“ But- it is said he- accepted the charter, advertised for the elec-tion of officers under the charter, and voted at the- election by proxy. ' If he did accept the charter, knowing the facts alluded to, his mouth would be closed, and no objection on that account could .now avail him. See first point on part of the plaintiffs, and first ■point on part of the defendant. The advertisement and proxy are .evidence to show his acceptance of the charter. But if in truth, ,he did not know that fictitious stock had been certified to the governor, when he gave his proxy to James Milliken, such proxy •would not affect him. There is no legal magic in the proxy, it is only as evidence of the fact of acceptance of the charter. If he .-did so, knowing the facts, he is barred in his defence. If he did not know the facts, the proxy would have no effect See second point of defendant. The same remarks,apply to the advertisement. If it was done without the agency of defendant, by other persons using his name, it would not affect him. It seems it was not his duty to advertise, he was not therefore bound to know the facts .in relation to it, any,thing thus done in ignorance of a man’s rights, .or of the facts do no.t affect him.
Fourth point of defendent. Such ignorance as is set out in ■this point, may not be a bar to plaintiff’s recovering, if the charter was obtained, the company organized, the work done as intend,ed, and the State has confirmed the charter, waiving all exceptions to these irregularities. If defendant was not injured or de.frauded, he would have no right to resist the payment on that ■ground. See second point on part of the plaintiff The two acts -referred to, do validate the charter, and the subscriptions if Iona Jide made. But if fraudulently obtained on part of the commissioner, this act would not, and could not confirm them. If fraudulent in the beginning, no subsequent acquiescence of the défendant would make them good. It would require a new engagement, or ■something equivalent. The legislature never intended to give .effect to a contract improperly obtained, contrary to the, consent of ■■the injured party. The .terms of the act only apply to subscriptions,, obtained bona fide in one act, and in good faith in th.e other, .which is the same thing.
“ Third point of plaintiff: If the giving the proxy, voting, advertisement, &c. satisfy the jury that the defendant 'knowingly .accepted the charter, we before said, and now repeat, that his mouth would be dosed, but if done without a knowledge of the .facts he now complains of, or by others, without his knowledge, .defendant would not be affected by it.
“ Third point on part of defendant The commissioner taking the ■ stock, was the agent appointed by law for-that purpose. If the defendant was induced to subscribe .under a promise or engagement ■from him, that it should.be paid in black-smith work, the plaintiffs should have made a demand of such work before they could . sustain this suit. It was the duty of the commissioner to take subscriptions on the terms prescribed by law. Those terms are set ■ out .in the writing in the book over the subscriptions, it calls for ■ money,, not for work, .and the commissioner had no power or authority to promise or engage to take payment in work. He might use fair reasoning and argument to induce such subscriptions, but •could not use false inducements; but was only responsible for his own conduct in this particular. If others falsely induced defendant to subscribe, if the commissioner had no hand in it, and did not assent to it, it was the defendant’s folly, and ought not to avail him. I would apprehend from the evidence, that no such fraud was practised on the defendant by the commissioner. Rut it is a fact to be determined by the jury. Indeed the whole cause depends mainly on the evidence, was the defendant imposed upon, was the terms of the agreement altered to his prejudice, was he circumvented by the ■ agent, was any fraud practiced upon him, if so, he stands discharged from the obligation of his engagement. If he knew how the charter was obtained, and assented to it, and voted by proxy for oificersunder it, or if the fictitious stock was added and certified, even without his consent; if it did not defraud or injure his rights, and if he subscribed voluntarily the written engagement over his name, he is bound to pay. Plaintills only claim thirty dollars a share with common interest.”

To this chárge, the defendant excepted, and has here assigned nine errors; some of which have not, however, been insisted on in the argument. The errors are,

1. The court erred in receiving in evidence the newspaper, containing the printed advertisement, as set forth in the first bill of exceptions of defendant below.
2. The court said, “ was the charter accepted and confirmed by the defendant ? If so, he cannot now gainsay it.”
3. The court said, “ upon the trial now in progress, and the pleas and issues upon the record, the' validity of the charter cannot be inquired into.”
* 4. “ There were two objects that the subscribers, probably had in view; one, the completion of the turnpike road; the other, the vesting of their money in a productive fund, the second object may have been é advanced, rather than injured by the contrivance of •certifying the ficticious stock.”
5. In saying, “I do not therefore see so plainly, how the defendánt was injured or exposed to injury in this transaction; and if he was not, I see no reason he has to complain.”
6. “ That if the defendant did accept the charter, knowing the facts alluded to, his mouth would be closed, and no objection on that account would now avail him.”
7. “ That the advertisement and proxy are evidence to show his •acceptance of the charter. If he did so, knowing the facts, he is barred in his defence.”
8. Court erred in charging on defendants fourth point, in saying,“such ignoranceas is set outin this point, may not be a bar to plaintiff’s recovering, if the charter was obtained, thé companyorganised, the work done as intended, and the State has confirmed the charter, waiving all exceptions to these irregularities,”
9. The court erred in charging on the third point of defendant, in saying “ the commissioner had no powér or authority to promise or engage to take payment in work.’’

The first error assigned, Having already been considered, any further remarks in relation to it, ate deemed unnecessary. In delivering the opinion of thé court oh the rémaining errors, I propose’ to confine myself to such generál f émárks, as may, on this occasion' suffice. The defendant. complains, that thé court erred, when' they told thfe jury, that’ the validity of the charter could not bé inquired into,-’ in this aefiom’ Thfe point ca'm’é befotfé us,' and hak already been decidéd in the case repotted in 16 Serg. & Rawle, 140, where it was eipressly declared, that if the charter had been even fraudulently obtáínéd, it could not be declared void,' colláte-’ rally, iii a suit like the present? it cofild only be vacated by thfe court, either by scire facias to repeal it or to declare if forfeited,' óf on a writ of quo wdrranto, at the suit of the commonwealth; and sp the court below declared the law; theré -Was then no error in this part of the charge. But if, in obtaining the charter, a fraud has beep committed oh the défendant in this action,' by which he has susfainéd or might sustain an injury, it is an entirely different: question, whether the cofpóraíión can sustain this suit. The evidence is positive,'full, complete a’nd üncontradicted, that the charter was obtained by means of the subscription of three hundred shares of fictitious stock,‘in order to make up the six hundred shares, required by law before á charter could, be granted, and that a deliberate plan was adopted and pursued to obtain the' fictitious Stófeky and thereby obtain a charter and the twenty thousand dollars'siibsfcribéd by the State. But there is no proof, nor colour of proof; that the defendant knew of the plan of scheme to put down fictitious names for three hundred shares, or ever knew any thing of the execution of the plan, or that it had- beeft carried into effect. It appears that if was suggested and adopted at a meeting of the commissioners, at w'hich it is not pretended, any stofckholder, who was not a commissioner, was pfesént. The defendant was not-a commissioner. Theré is'nq proof that the subscribers to this stock were informed that three hundred shares, together with the commonwealth’s subscription of twenty thousand dollars would be sufficient to make the road, the Commissioners, to be sure, were so told, but not the stockholders. Can it then be supposed, that if the stockholders had been informed of the scheme, they would ever have agreed to it ? Or have We a right to say, they would have assented ? For my own part, I cannot think they would. If was a direct injury to every stockholder who had subscribed, for if six hundred shares had been taken, as the law provided, it is evident, that no more than fifteen dollars-would have been required on each share, whereas by the plan adopted in taking three hundred shares from fictitious subscribers,- every real stockholder is called upon to pay thirty dollars on each share. I would ask, was it just, was. it fair to deal thus with the stockholders. The proof in this cause, Í observe, was by one . of the commissioners, and he does not state,that the commissioners ever divulged their plan of faking fictitious' stock, to ihe real subscribers, or that any. of them knew of it, until after the company was in operation.- This, in my opinion, was a-fraud on every subscriber,- and would excuse him from the payment of his subscription! Let me not be understood, as imputing to the commissioners an intentional fraud, such is not my meaning, I have the pleasure of knowing some of them, and I know, that they are incapable of a-ny such intention.* The facts are however, distinctly proved, and nothing is left to-inference; it was therefore" wrong to refer it to the jury to decide, whether the defendant knew' of what was proved to have been done in his absence, and never communicated to,him; it'wais essential for the plaintiffs to establish by evidence the fact of notice, nor could the defendant' he called u.pon,- in the first instance to show that there was no! notice.-

It is contended, that the defendant' accepted the charter, and! thereby -waiving all objections, must pay his subscription money.It is true, a charter was obtained, but the subscribers did not know When or how it was obtained,-of the imposition on the government,* they knew’nothing.* They had no direct agency in obtaining it, in-fact, the subscribers could not have obtained it, for the commissioners were the persons to certify the necessary facts to the governor, and When this was dbne, the charter was- thereupon granted. I- am satisfied, that if a propfer application had been made, and the proper mode pursued to repeal this charter, the Supreme Court' must have declared it void, as to the State, on account of the im-' p'oSition practised, or that the State would have been justifiable in refusing'tfrpay their’subscription of twenty thousand dollars. The' legislature however, having waived their right, the charter is valid as to the Stafe.- But, there has been no Waiver by the subscribers,who subscribed on the faith of the law, which assured them, that they should contribute with subscribers fbr six hundred shares,-but' are afterwards called on to contribute double the sum-' With half the' number’ of shares. The defendant has not waived any right to resist this imposition so far as he is affected,- and be stands discharged, in consequence <?f the fraud, from his obligation to the company.

The last error assigned is, that the Court erred in their answer to' ■the defendant’s third point, in saying, that the commissioner had no power or authority to promise or engage to take payment in work. Mr. Reynolds,, in the presence of one of the commissioners,. ¡after the defendant had refused to subscribe, urged, as a means to prevail on him to subscribe, that he could pay it in black-smith work, and on this assurance, obtained the defendant’s subscription. This declaration, made in the presence of the commissioner, and not objected to by him, is to be taken as his declaration, nor is it correct fo say, that the law draws a distinction between the commissioner and the corporation, in regard to this promise. I hold the promise to be safar binding, on the corporation, as to prevent it from recovering of the defendant contrary to the terms on which he subscribed. See Hill v. Ely, 5 Serg. & Rawle, 383, and Miller v. Henderson, 10 Serg. & Rawle, 290. The opinion of the court is, that the plaintiff in error has sustained the errors above adverted to.

Judgment reversed, and a venire facias de novo awarded;


source: Caselaw Access Project

author: Per Curiam.;

license: Public Domain

text:
    ALEXANDER DEAN, surviving Assignee of BENJAMIN DAVIDSON, against JOHN PATTON.
    The. trustee of an insolvent debtor, having in his own name, sued a mort* gage given to the insolvent, obtained a judgment, and issued a Lev. Fas, thereupon; by virtue of which, the sheriff sold the mortgaged premises, and received the purchase money. Held: that in a suit brought against the sheriff, to recover the money from him, he cannot set up as a defence, that the trustee had. never given bond as required by the act of Assembly.
    Writ of error to the special Court of Common Pleas of Hunting* don county.
    The only question of law which was argued in this court, grew out of the following facts.

      Alexander Dean was the surviving assignee of Benjamin Davidsmi, •an insolvent debtor, and as such, in his own name, issqed a scire facias on a mortgage, given by James Clark to the said Benjamin Davidson, obtained a judgment thereupon, and issued a Lev. Fas, directed to John Patton, the defendant, then sheriff of Huntingdon county, upon which he sold the mortgaged premises for two thousand four hundred and seventy dollars, and received the purchase money. This action for money had and received for the plaintiff’s use, was then brought against him to compel him to pay it over; to which he set up a defence, that the plaintiff had not given bond with security, as trustees of insolvent debtors are required by the act of-assembly to give, before suit brought.
    The court charged the jury on the other points in the cause, and reserved the point above mentioned.

      The jury found a verdict for the plaintiff: but the court being .of opinion .that the objection to the plaintiff’s recovery was fatal, entered judgment for .the defendant.'

      Miles, for plaintiff in error.
    The right of the plaintiff to have the money, had been .established by the judgment on the mortgage; it had passed in remjudicaiam; and a sheriff c.ould not collaterally controvert .that right. Dawson v. Ewing, 16 Serg. Rawle, 371.
    The plaintiff in this suit sues in his own individual right, and the plea of non assumpsit admits fhp character in which he sues. M‘Kim v. Riddle, 2 Dalí. 100.

      Potter and Blanchard, for defendants .in error.
    The plaintiff claims the money as trustee of Davidson, and he must show that he has qualified himself under the act of 4th April 1798, before he can sustain a suit. Upon his neglect or refusal to give bond, the court may appoint another trustee. Willis v. Law, 3 ’ Yeaies, 520. Henderson v, Cooper, 6 Bin. 189. Under the plea of non assumpsit the defendant may avail himself of the defence that no bond has been given. Kennedy v. Ferris, 5 Serg. Sf Rawle, 397. Park v. Graham, 4 Serg. S¡' Rawle, 549.

      Hale, in reply.
    If the court should be of opinion that the judgment should be reversed, they will enter judgment for the plaintiff below upon .the .verdict. ' ■
   Per Curiam.;

The sheriff is an officer of the law, but for the benefit of .those whp are entitled to his services; and to suffer him, instead of serving the plaintiff in an execution, to baffle him by disaffirming his'right to the money, although sólemnly'adjudged in an action between the proper parties, would be vexatious and oppressive. Np sheriff ever thought of alleging as a pretext for retaining money in his hands, that'the plaintiff had recovered under void letters of administration. His plain duty is obedience ,to the mandate of the writ, by having the money ready for the plaintiff before the court. On the other hand, although the sheriff will not be allowed to dispute the plaintiff’s title, the court will take care that the creditors of .the insolvent be properly secured before the plaintiff has leave to take the money put of court; and thus substantial justice will be done without unnecessary delay.

Judgment of the court below reversed, and judgment upon the verdict for the plaintiff


author: Huston, J.

text:
    ROBERT SMILEY against ROBERT DIXON, BENJAMIN CARSON and JAMES CARSON.
    A. being the owner of a tract of unimproved land, sel] son e hundred acres to-B. and one hundred acres to G.; B. and C. go,upon the ground and mark a division line between .them; it was afterwards discovered that A. had no title to the land: B. then went upon it, had a survey made of foqr hundred acres, including the oye hundred acres sold to C. and acquired 'title by actual settlement: ' JEteld, That there was not such a privity of 'estate or title between B. and C. as to prevent B. from thus acquiring ,for himself, a title to the whole of .the land.
    •Writ of error to the Common Pleas of Clearfield county.
    This was an action of ejectment brought by Robert Carson, the plaintiff in error, and plaintiff below, against Robert Dixon, Benja'min Carson and James Carson,

    ' The.case was.this: Robert Maxwell was,the agent of John Mitchellf with authority -to sell certain lands in Clearfield county, and being indebted to Robert Smiley, the plaintiff, he agreed to sell to him one hundred acres of the land, in consideration of the debt. About the same time Maxwell .also agreed to sell the other hundred acres of the same tract to Benjamin and James Carson, the defendants, at one dollar and fifty cents per .acre, out of which was to be deducted a debt due to-them also. Maxwell afterwards went upon the ground with Smiley and the Carsons and marked the division line between them. The agreement between them was that Mitchell .was to make the titles. Soon after this Smiley .and the Carsons discovered that neither Maxwell nor Mitchell had any title to the land. At this time no possession had been taken ;of the land by either party. Smiley then said that he would go on the land, improve :htj and acquire title by improvement, and hold four hundred acres.' He did move on it, built a house, cleared land, raised grain, and made a suryey to include the land in question; and .which is the part which Maxzc’ell sold to Benjamin and James Carson. About two years afterwards Benjamin and James Carson went upon their hundred acres, put a small house on it, and put Dixon, one of the defendants into it, as their tenant. It was also in proof, that before .the Carsons went on the land, one Dunlop had settled upon their hundred acres, and commenced an improvement, andiin conversation between Dunlop and Carson, he told Dunlop that he had better hot make an improvement, for Smiley would take it from him.
    The court below was of opinion, and so instructed the jury, that the plaintiff ought not to recover; on the ground, that each had purchased the one half of the same tract of land, each had expended his money, and each had a right to. perfect his own title to his respective lot; and that it would be against equity and justice, to permit either to take advantage of the other, inasmuch as they had purchased from the same source, with a perfect knowledge of each other’s rights, and had been equally unfortunate.
    The jury found for the defendants, and the plaintiff sued out this syrit of error.

      Blanchard, for the plaintiff in .error.
    The law as laid dqwn by the court is only applicable to a case where there is a privity of estate or interest 'or community of title, and such is the case of Vanhorn v. Fonda, 5 Johns. Chan. 407, upon which the opinion of the court belovy in this case wag predicated. In this case there was no privity of estate or community of title. The doctrine, when it does apply, is founded upon a trust, which did not exist between Smiley and Car-son, for their titles were separate and distinct. Cited Walker v. Walker, 16 Serg. Sf Rawle, 384. Dorsey v. Jackman, 1 Serg, Sf Rawle, 5.1.

      Valentine, for defendants in error.
    The conduct of Smiley in procuring his title to the prejudice of Canon, taken in .connection with the relation which existed between them, was a fraud which equity will not sanction. The parties lived together, consulted about their title, talked about , their division line, and with a full knowledge of each other’s want of title, Smiley sneaks off and commences an improvement not only to perfect his own title, but also take from Carson his title. The parties had a community of title; for each purchased the same title from the same person. This is an action in which the plaintiff seeks to have the equitable powers of the court administered in his behalf, which his conduct does not merit. He cited 4 Vin. Ab, 388. 1 Fond. Eq. 125, Dunning v. Gar-others, 4 Yeates, 17, MPherson v. Cunliff, 11 Serg. Sf Rawle, 427,
   The opinion of the court was delivered by

Huston, J.

(His honor here stated the case,) The Court of Common Pleas instructed the jury, that as both plaintiff and defendants had purchased from one who had nothing to sell — mere moonshine, and were equally unfortunate, that it was against equity for the plaintiff to claim, and take into his survey, what he knew another had bought, and what was separated by a line which he knew, and which he saw run and marked, That as they both purchased from the same person, the one could not hold the land which was to have been given to the other: and the court relied on the case of Vanhorn v. Fonda, 5 Johns. Chan. 388, and Liggel v. Bechtol, in this court. If Maxwell had title, this would have been right'; for neither could obtain fairly from him, what he knew was by agreement to be conveyed to another. But it is admitted that Maxwell had not even colour of title; his sale then, and purchase from him is literally nothing, even if there had been proof that his agreement with Garson had assumed any definite shape. Chancellor Kent decided, that one of two devisees could not purchase an incumbrance on their joint estate, and use it to sell the land and strip the other of his property: and in Ligget v. Bechtol, this court decided, that two tenants in common, who had heard of an adverse title, and agreed to join in defending- against it, or in purchasing, were bound to deal fairly with each other: and that one of them who purchased the adverse title for a small sum, must hold it in trust for the other, upon that other paying his proportion of the purchase money: and the law is clearly as decided in each of those cases, nay, it goes farther; and wherever two have a joint estate, it raises a duty in each to deal fairly with' the other; and one who purchases an adverse title, will not be allowed to sweep all from his co-tenant; unless some special circumstances occur in the case. In this case, these men did not purchase jointly, neither had any thing by purchase from Maxwell; they were not joint tenants, or tenants in common; and there was' no privity between them. The bare fact that each had been, cheated, neither gave any right to the other, or deprived him of the full and absolute right to purchase from the real owner, when discovered. The State was the owner; and Smiley purchased from' the State by his actual settlement.

When a man sells a defective title, and afterwards purchases the real title, this shall be in trust for his vendee, from Whom he shall not take away the land which he himself sold. And when one,’ present at a treaty of sale, advises a person to' purchase and that the title is .good, he shall not afterwards purchase a good title, and recover the land from one whom he induced to buy and pay his money. Lane v. Reynard, 2 Serg. & Rawle, 65. This does not come' within any of those cases; nor, as is believed, within any decided case; nor is it governed by any principle recognized in any court. There was no privity, no confidence between the parties, no concealment by Smiley, and nothing done by him to induce Carson to' purchase, or to confide in their purchase. The land was vacant to \ be taken by the first occupant; and there existed no obligation of law or tie of conscience, to prevent Smiley from táking possession.

It was hoWever said, that Smiley, who was unmarried, boarded at Carson's during the inception of his improvement, and until his' house was fit to reside in. Of itself this would give no right to' Carson. The proof is that before and during the time of improving, Smiley said he would hold four hundred acres by his improvement; ánd there is another fact which shows that Carson knew this, and acquiesced in it, that is, that he fold Dunlop, who began to' improve on the land now in dispute, after Smiley, that Smiley could hold the land by improvement, and Dunlop moved off. Tllis was a material fact, and showed that Carson knew his own purchase to be worthless; that he did not claim under it; that he knew how Smiley claimed; knew of the extent of his claim, and admitted its validity. Taking this with the other facts in the cause, we are at a loss to discover any principle of law or equity, which has been violated by Smiley,-or on which the Carsons can rely as á defence. It is not enough to destroy a- right, that some men wduld have scrupled to have acquired it, until they had inquired of another whether he wished to purchase it.- , For some time after the imposition by Maxwell was discovered,’the land was Open to occupation by the Carsons, as well as by Smiley; they do 'not enter, they know Smiley is acquiring title ;’thcy state to a third person that his title is good. Years afterwards,-when "the general improvement of the country is adding value to lands, they enter under pretence of what is conceded to be no title. This conduct savours more of unfairness than that of Smiley.

Judgment reversed,'-arid a venire facias de novo awarded.


author: Per Curiam.

text:
    GEORGE B. ENGLE against JOHN NELSON.
    A special’pica that a domestic attachment, grounded upon the same cause of action, liad issued in another county, and is yet pending, is a plea in abatement', arid cannot be put in after issue joined upon a plea in bar.
    The rule, is different as regards a popular adtion:’ there the pendency of a prior action extinguishes the title of every one else, and necessarily ba"s the right.
    Writ of error to the Common Pleas of Centre county.- .
    This was an action of assumpsit brought by John JVelson, the defendant in error, against George B. Engle. Issues were joined upon the pleas of non assumpsit and payment: after which the de: fendanf filed the following plea:*
    “ And the said George B. Jingle, by T. Burnside his attorney, comes and defends the wrong and, injury when,- &c. and says, that he ought not to be charged with the said debt, because the said John Nelson, on the 9th of February, 1819, issued ,ou,t of the court of Common Pleas of Huntingdon cóunty, against' the said George B. Engle,-a- writ,-commonly called a .domestic attachment, for the same cause of action, for which this’ suit is'brought; and that the sheriff of Huntingdon county, in pursuance of the said writ of domestic attachment, attached of the, property of the said George B. Engle, ten dollars, in the hands of John Wall, eighty dollars in the handá'of Thomas Taylor, and accounts, judgments and money in the hands of John Morrison, Esq. and Enoch Hastings, Esq. of the said county of Huntingdon: and the said court did, on the 18th April, 1819, on motion, appoint John Crawford, Esq. David M‘Muirie and Jacob Neff auditors, to settle and adjust the claims of the several creditors of the said George B. Engle. And that the said suit is still pending, and not finally determined; and tbis he, the' said George B. Engle, is ready to verify. Wherefore he prays judgment, if the said John Nelson ought to have or maintain' his aforesaid action thereof against him, &c.” 1
    To this plea the plaintiff refused to reply, as being in every way incompetent and informal; and the court would not require them1 to do so, but considered it a nullity. To this opinion the defendant excepted; and here assigned it as error.

      Petrikih, for plaintiff in error.
    A foreign attachment pending,' cannot b'e given in evidence; finder the general issue; but must be pleaded specially. Updegrajf v. Spring, 11 Serg. Sp Rawle, 188.
    Pendency of a former action for the same cause, may be pleaded either in bar or abatement. 1 Bac. Ab. 24, title Abatement.

      Potter, contra.
    If the plea' was any thing, it was in abatement,' and came too late. Riddle v. Stevens,- 2 Serg. Sp Rawle, 537. Witmer v. Salter, 15 Serg: Sp Rawle, 150.' Wilson v. Hamilton, 4 Serg. Sp Rawle, 238. That it was a plea in abatement.- 1 Chit. Plead,. 443.-Ernbre v. Hannah, 5 Johns. Rep. 101. Commonwealth v. Churchill, 5 Mass. 174.
    When matter is pleaded specially which may be given in evidence under pleas already entered, it need not be answered.Podan v. Reed, 8 Serg. Sp Rawle, 263.- Shaw v. Redmond-, 11 Serg. Rawle, 27 — 8. Riddle et ais, v. Stevens, 2 Serg. Sp Rawle,- 544. Barrington y. Washington Bank, 14 Serg. Sp Rawlep405.
   Per Curiam.

That the pendency of the domestic attachment in Huntingdon county, was clothed in the drapery of a special plea in bar,- can impose on the plaintiff no additional obligation to answer it, if it were essentially pleadable only in abatement 5 and it is necessarily so, where it goes,- not to the plaintiff’s title, but to the particular action. It is different however as regards a popular action, which vests the property of the thing in action, in the party who has first sued for it: there the pendency of a prior action tvhich extinguishes the title of every one else, necessarily bars the right, and this distinction is not only founded in technical reason, but recognized by the best elementary writers. 1 Chitty on Plead. 443. As a plea in abatement, then, this branch of the defence was not only grossly defective in form, but produced at a stage of the pleadings when it was decisively inadmissible; and the court was perfectly accurate in treating it as a nullity.

Judgment affirmed.


author: Rogers, J.

text:
    JAMES IRWIN, surviving administrator of JAMES IRWIN, deceased, against DAVID ALLEN and MARY FETTERMAN, who survived JAMES SANDERSON and others.
    A power of attorney, executed by an administrator, who does not therein style himself as such, by virtue of which a dispute is' settled between his intestate and a third person, by the attorney-in-fact, is competent evidence to go to the jury, with the* settlement and reléase, particularly if it did not appear that the administrator had any account in his own right to settle.
    An attorney-in-fact is a- competent witness to prove, that a settlement made with him for his principal, upon which he executed'a release to the partybwas obtained by a misrepresentation of the'trutli.
    Error tp the Common Pleas of Mifflin county. The plaintiffs in error were the plaintiffs below. . •

      David Allen, Mary FeUerman and another, were the administra- / tors of George Irwin-, deceased, who, together with their sureties in their administration bond, were sued in the name of the commonwealth, and a judgment was rendered against them for the amount of the penalty. After which a suit was brought by the present plaintiff against David Alien and Mary FeUerman, surviving administrators of George Irwin, deceased, in which’he recovered a judgment for one thousand six-hundred and sixty-seven dollars and .fifty-two cents. Having thus liquidated the claim due to the estate of James Irwin, deceased, his surviving administrator, James Irwin, issued a scire facias upon the judgment in the name of the com-' monwealth to recover the amount-due to'the said estate 'by the defendants; which is this cause.
    Issues were joined upon the pleas of mil tie! record,-payment, a release, and accord and satisfaction.

    The plaintiff having given in evidence the record of the judgment, for the penalty of the administration bond, and the judgment' in the suit brought against the defendants as executors of George Irwin, deceased, rested.
    The defendants offered in evidence a power of attorney, James Irwin to Clendenin Ross, and from Clendenin Ross to William Irwin', ■ and' an agreement entered into between William Ii-win-and David Allen, by Which the claim of James Irwin, administrator of James Irwin, deceased, against David Allen and Mary FeUerman, administrators of George FeUerman, deceased, Was adjusted and settled by the payment of three hundred dollars to the said' William Irwin.

    This evidence was objected to by the plaintiff, on the ground that in the power of attorney, James Irwin did not call himself the administrator of Janies Irwin, deceased, nor execute it as such; and-that the agreement was not executed by William Irwin as fhe attorney-in-fact of James Irwin or Clendenin Ross, but in his own ( name. These objections.having been overruled, an exception was taken by the plaintiff.
    The plaintiff then offered William Irwin as a witness, to prove, “ that David Alim came to him and stated that there was no part of the estate of George Irwin, deceased, in his -hands; that the whole estate had been disposed of in the payment of the debts of the intestate; that he would pay him three hundred dollars if he would give him a release; that lawyer Anderson had made a calculation by which it appeared there was not fifty dollars in his hands. That the witness ivas induced by these representations to sign the release. And to follow up this by proof, that at' that time the administrators of George Irwin had in their hands, estate to t a large amount, at least three thousand dollars, and that the proportion then iustly due to the plaintiff’s intestate exceeded one thousand dollars.”
    This evidence the defendants objected to.: 1st. William Irwin is not a competent witness to prove the facts. 2d. It is not an offer to prove that David Allen had the money in his hands, but that it was in the hands of the administrators. 3d. The whole oiler is to prove misstatements of Allen, and to set aside the solemn act of the witness himself, when the office was open to him, and he had a full opportunity of informing himself about the estate; and, 4th. The whole offer, if believed to be true, is not such evidence of fraud as to go to the jury.
    The court sustained the objections, and overruled the offer, to which the plaintiff excepted.
    Error was here assigned in the opinion of the court as contained in these two bills of exception.

      Potter, for the plaintiff in error.
    The power of attorney, and agreement made in pursuance thereof, should not have been received in evidence to defeat a claim made by James Irwin in his representative capacity; for it was not executed by him in that capacity. There is no rule of law which will exclude William Irwin, as a witness, although he executed the agreement in his own name, yet he did it as the agent of James Irwin, for he had no interest of his own to settle. His evidence did not tend to destroy his own solemn act, but to show the circumstances under which it was executed. But even if it . did, it would not render the testimony illegal. It was a matter of no consequence whether it was Allen who had the estate in his hands, or his co-administratrix, for they were jointly and severally liable for it.

      Blanchard, for defendant in error.
    The plaintiff having derived advantage from the power of attorney, by procuring a' settlement of his intestate’s claim under it, as though it had been in all respects formal, now objects to it, because he is not called administrator. It does not appear that he had any claim on the defendants in his own right; hut, on the contrary, it is manifest that the authority delegated was to settle the claim due to the estate of his intestate.
    If all the facts offered and contained in the second bill of exceptions were strictly .true, they wpuld not amount to a fraud, such as would avoid the' agreement and release. The estate may have .been in .the hands of Mary Fetterman, and in jeopardy, and if so, it would be perfectly fair for David Mien, although liable, to buy him.self out of the liability.
   The opinion of the court was delivered by

Rogers, J.

There is nothing in the first objection. Although the letter of attorney is given by James Irwin, without stating hi'm-.self to be administrator of James Irwin, deceased, yet, it is plain it is a letter of attorney in the suit in which the compromise was made, and was given 'by the administrator as such, and with a view ,to a settlement of that suit. It would be unjust that the estate .should reap the fruits of the compromise, and afterwards avoid the agreement, because the administrator had omitted to describe himself, in his representative capacity. If it had been shown that Irwin had any accounts against the estate of George Irwin, in his own right, and that he had disclaimed the act of the attorney, there might have been some colour, for the objection. But in the absence of all proof to the contrary, ut res magis valeat quam periai we must refer the transaction to the .character in which he alone had any demands against the defendants.

After the admission of the agreement, the plaintiff offered to prove, that David Mien came to him, and stated that there was no part pf the estate oí.George Irwin in his hands, that the whole estate had been disposed of in payment of the debts of the intestate, and that he would pay him .three hundred dollars, if he would give hirn a release; that Allen stated, that lawyer Anderson had made a calculation, by which, he said it appeared there was not fifty dollars in his hands. This to be followed up by proof, that at the time, the administrator of George Irwin had then of the estate in their hands at least three thousand dollars, and that the proportion then justly due to plaintiffs exceeded one thousand dollars.

We are to take it, that the plaintiffs could prove their offer, and if so, we have the case of a person defrauded out of upwards of seven hundred dollars, by the false and fraudulent representation of his own trustee. This cannotbe allowed; for the law exacts the utmost good faith from one acting as a trustee. It has been repeatedly decided that the guardian or executor shall pot be permitted to speculate at the expense of the ward or personal representatives. Nor can I perceive in what respect the creditors are placed in a worse situation, as the administrator is as much the trustee of the creditors as the personal representative. It matters not that .the administrator derives no benefit from the compromise. The creditors have a right to complain that their interests have been sacrificed, by a person whose duty it was to protect them, and ■ whether this fie done for the benefit of himself or others, is totally immaterial to him. It may lessen tifie moral turpitude of the transaction, that the administrator derives no ben,efit from the agreement; yet the loss remains the same to the creditor, whoever may profit by his false and fraudulent representations. When we consider that the administrator is usually one of the heirs, or a relative or friend of theirs, there is great reason that the court should be vigilant to protect the rights of creditors. As the administrator has the full knowledge of the estate, it is a violation of his duty, to be guilty of any concealment in respect to it. Such a course of conduct is fraudulent and void.

As the facts offered were evidence, there is no doubt the attorney-in-fact was a competent witness to prove them: he has xxo interest .whatever in the event of the suit.

Judgment reversed, and a venire facias dp «ovo awarded.


author: Smith, J.

text:
    ADAMS’ Appeal,
    A mortgage unrecorded in the life time of the mortgagor, has no preference over other specialty debts, out of the proceeds of the sale by the sheriff of the mortgaged premises, after .the decease of the mortgagor.
    This was an appeal' fiy John Adams from the decree of the Court of Common Pleas of Huntingdon county, distributiiig the proceeds of the sale, by the sheriff, of the real estate of James Adams, deceased.

      James Adams, in his life time, being the owner of a tract of land, executed a mortgage upon it to John Adams, to secure the payment of a certain debt: he also became indebted to several other persons by specialties, and died. After his death the mortgage was put upon record, sued and judgment obtained thereon. The same land was then sold on an execution by the sheriff, and the money brought into court for appropriation: and the question presented to the court was, whether the unrecorded mortgage was entitled to a preference over the other debts of James Adams, deceased, which were secured by specialties.
    The court below made a decree, distributing the proceeds of the sale pro rata among all the specially creditors of the de.ceased, including the mortgagee; from which decision John Adams appealed.

      Bell, for appellant.
    An unrecorded mortgage is good against the mortgagor, the recording act being only intended to protect subsequent judgment creditors and purchasers. A creditor of the mortgagor, unless he be a lien creditor, cannot take advantage of the want of recording of the mortgage, which the mortgagor himself could not take. Levinz v. Will, 1 Dali. 430. The mortgagee might have sustained an ejectment, and recovered the land itself. Smith v. Shaler, 12 Serg. Sf Razóle, 240. Having thus an equitable specific lien on the land, he is entitled to a preference over the specialty creditors.

      Potter, for defendant in error,
    whom the court declined to hear,
   The opinion of the court was deliyered by

Smith, J.

The moment a man dies, leaving debts, every one of his creditors has a lien on his estate. Such debts have their various grades, fixed by the death of the debtor, and all specialty debts come in, and are to be paid equally. The law requires a mortgage to be recorded in 'six months, and no estate will pass by it, unless recorded within that period. It is true the act of assembly was made for the protection of mortgagees; but like others, they may lose, their lien and their protection by neglect. “Liens,” said the present chief justice, in delivering the opinion of this court, in Kauffelt v. Bower, 7 Serg. & Rawle, 64, “are permitted; but those who have them, are laid under severe limitations and restrictions. Thus, by act of assembly a judgment continues a lien for but five years, unless within that period, it be revived by scire facias; and by the acts of 1715, and 1775, no mortgage could affect the land, unless it were recorded within six months from the date. This has, however, been altered in some respects by an act of the last session.” The owner of this mortgage having neglected the requisition of the law in regard to the recording of it, it is only to be considered as a specialty. In fact, to give to it now, the validity of a regular mortgage, would repeal the acts of the 28th of May, 1815, and of the 28th of March, 1820, and the 14th section of the act of 1794, and the tendency of the decision would be to 'defeat all the valuable purposes of those enactments. Nothing favourable to the claim of the executors of John Adams, can be drawn from' any of the decisions made in England, or other countries, where the laws do not require mortgages to be recorded, for our recording acts, by their very terms, have put those decisions all out of the question,

Decree affirmed.


text:
    M‘KEE'S Case.
    The Circuit Court has no appellate jurisdiction of proceedings in the Quarter Sessions, when not according to the course of the common law: hence it has not jurisdiction of a proceeding against a husband for deserting his wife and children.
    The Circuit. Court may remove a cause by habías coz-flus, with a view to the trial of an issue, but it- can only do so when the issue is according to the course of the common law.

      John MKee having deserted his wife and children, she made an application to a justice of the peace for relief, who issued a warrant against John MKee, commanding the constable to, take him, and bring him before him, that he might be bound over to appear at the next Court of Quarter Sessions, to answer the complaint of his wife. He was taken, and gave security for his appearance at the next sessions, when his attorney made the necessary certificate, and removed the case into the Circuit Court. It came on to be tried in the'Circuit Court, and his honor justice Rogers dismissed the cause and complaint, on the ground that the Circuit Court had no jurisdiction of it. From this decision; John MKee appealed to tlié' Supreme Court.

      Petrikin and Potter, for appellant.
    The acts of the 9th March, 1771, section 80, and 31st March, 1812, section 6, Purd. Dig. G59-679, authorise a proceeding by overseers of the poor, in cases where the wife is chargeable,, or likely to become so. This is in the nature of a civil proceeding by the záfe, and if she is entitled by any law to recover money, the husband would be entitled to a trial by jury: and if so,The Circuit ■ Court would have jurisdiction. Whenever an issue is to be tricd> that court has jurisdiction. Woods v. Woods, 17 Serg. Sf Razóle, 12. Light v. Light, ib. 273. Robbarts v. Robb arts, -9 Serg.fy Razóle, 191. Whorl. Dig. 463. No. 175.

      Valentine and Blanchard,-for appellee,
    whom the court declined to hear.
   Per Curiam.

The Circuit Court is á substitute for the former court of Nisi Prius, with scarce any power beyond the trial of issues, but to render judgment and determine appeals from the Register’s and Orphans’ Courts. There was no necessity, and' consequently no design to give it the general powers and jurisdiction of the Supreme Court, in bank. It clearly has no appellate jurisdiction of proceedings in the Quarter Sessions, when not according to the course of the common law; especially of a proceeding like ilie present, which strongly savours of a civil remedy, and which is particularly committed to that court. Even the Supreme Court in bank could take c.ognizancc of it only for the purpose of quashing it, by a certiorari after judgment,-which-the Circuit Court is expressly restrained from granting',- and although it may remove a cause by habeas corpus, with a view to- the trial of an issue,* 1 it can do so-, only when the issue is according to the course of the common law: beside it is enabled by the terms of the act of ,1799,- from' which it derives its powers, to take cognizance of nothing from the Quarter Sessions but indictments. The present- is not a proceeding for alimony, or one in which the intervention of a jury can be had in any shape; and we are satisfied that the judge- at the Circuit pursued the proper course in remanding it to the Sessions.-

Order of the Circuit Court affirmed,-


author: Gibson, C. J.

text:
    JOHN SENSER and others against ANDREW BOWER and wife.

      For civil purposes, reputation and cohabitation are sufficient evidence of marriage.
    In all cases of conflicting presumptions on the Subject of legitimacy, that infavour of innocence shall prevail.
    The alienation of an improvement right by the widow, after thé death of her husband, leaving an infant two years of age, will not bar the right of such infant to recover the land, when it arrives at'full age, even if thé consideration received by the widow should have, been applied to the . support and maintenance of the child. ■

      Query ? Whether there can be an abandonment of a right by an infant.
    Error to the special court of Centre county, (Reed, president.)-
    This was an action of ejectment for one hundred and fifty acres of land brought by Andrew Bower and Susanna his wife, against John Senser and others.
    The evidence upon -which the plaintiff’s title was founded, was, that about 1796, Daniel Zinn left the house of a neighbour, with-Catherine Kiielinger, for the purpose of beibg married, they soon'1 returned, find it was understood that they were then man and; wife; that they lived and cohabited together as such, and had1 issue one daughter, the present plaintiff! That about 1798, they' moved to the land in dispute, cleared two or three acres and fenced it, built a cabin and stable, and resided there about three' years, when Daniel Zinn died.
    The evidence given for the defendants, as they contended, established two grounds of defence. First, they proved that many years1 before the alleged marriage of Catherine Kiielinger with Daniel Zinn, she and Jacob Kiielinger left the house of a neighbour, to go and be married, that they returned soon after as man and wife, lived and cohabited together as such, for several years, and had issue two sons; that Jacob Kiielinger went to the western country, and had been absent about seven years, when his wife married Daniel Zinn; there had been a report that he was dead, but about a year after Daniel Zinn died he returned and took up with his wife again. Upon this evidence, the defendants contended that the second marriage of Catherine Kiielinger was illegal and void, and the issue of it illegitimate; and therefore the plaintiffs could not recover.
    The second ground of defence was — that upon the death of Daniel Zinn, leaving his widow and infant daughter, the present plaintiff, the actual settlement was not complete, and at all events insufficient to support the widow and child, and therefore the widow sold what right they had to one Hinton, under whom t¡he defendants claim, and have been in possession for twenty-three'years before suit brought, having, during that time, made valuable improvements. It was also in proof that Susanna, the plaintiff, was raised and supported by her mother.
    Many points of law, growing out of these facts were'put to the court by the counsel on one side and the other, upon which they were requested to instruct the jury, all -of which were resolved into two questions. First. Whether,, under the evidence, Susanna Bower was' the legitimate daughter of Daniel Zinn, upon whom the law would cast an inheritance, and — Second. Whether the right which Daniel Zinn had, by virtue of the acts done upon the land, was such an inheritance as the law would cast upon the heir; or whether it was not such an imperfect right that might pass as a chattel.
    The court below was of opinion, that in every aspect of the case, the plaintiffs were entitled to recover; and so instructed the jury. To which opinion the defendants took an exception.

      Potter and Blanchard, for plaintiffs in error.
    The proof of each marriage of Catherine Kiielinger was the same, and the first marriage being first established, no other marriage could be established by the same kind of proof: the same witness who proved the marriage of the plaintiff’s father and mother, also proved that'the mother was then the wife of Jacob Kite-linger, who was in full life. The first marriage being thus proved by legal evidence, there can be no presumption of a second marriage, because it is a presumption of crimej The children of the ' first marriage are certainly legitimate, and that of the second is as certainly not so.
    The inceptive right to the land in dispute was sold for a valuable consideration, by the mother, when the plaintjff was two years old, and incapable of maintaining that right; and that consideration applied to her benefit and support: can she now, after the lapse of twenty-three years, recover this land from the defendants who have made it valuable by improvements, and who never had notice of any claim of the plaintiff. The plaintiff is now claiming in an equitable action, and surely she is met by a superior equity in the defendants. 1 Yeates, 523.
    An infant cannot maintain that kind of occupancy which is necessary to give or complete a right under the act of assembly. Mobely v. Oaker, 3 Yeates, 200. Clarke V. Heckelhorn, id. 269. 11 Serg. Rawle, 341. The effect of the infant receiving the benefit of the sale by the mother, 2 Dissesare, 232. 3 Dissesare, 20-24. 4 Dissesure, 445j. As to the legitimácy of the plaintiff, 3 Black. Com. 92. Davis v. Houston, 2 Yeates, 289. As to the lapse of time before suit brought. Jackson v. Thomas, 16 Johns. 293 Jackson v.- Wheat. 18. Johns. 40. 5 Day, 181. Jackson, ex dem, v. Ellis, 13 Johns. 118-40-513. As to the defendants’. Want of notice. DayV. Dun-ham, 2 Johns. Chan. 182. Billinglon v. Welsh, 5 Bin. 129¡ Jackson - v. Henry, 10 Johns. 185. Hibernia Turnpike Co. v. Henderson, 8 Serg. Sf Rawle, 2191

      Petrikin and Valentine, for defendants in error,
    whom the court declined to hear.
   The opinion of the court was delivered by

Gibson, C. J.

For civil purposes, reputation and cohabitation are sufficient evidence of marriage; and there is evidently enough in the case to show that the plaintiff’s father and mother were married in fact. But there is said to be the same evidence of a precedent marriage of the mother with another man, who was alive at her second marriage; and hence a supposed dilemma. But the proof being equal, the presumption is in favour of innocence; and so far is this carried in the case of conflicting presumptions, that the one in favour of innocence shall prevail. Starkie on Ev. pt. IV. 1248-9. It must be admitted that this principle is not immediately applicable here, inasmuch as there is no conflicting evidence, and the facts supposed to result, are consistent with each other; but it establishes that the same proof that is sufficent to raise a presumption of innocence, may be inadequate to a presumption of guilt. To say the least, then, the jury were not bound to draw the same conclusion of marriage from the same evidence, without regard to consequences; and to have instructed them that they were, would have been error. On the contrary, they were bound to make every intendment in favour of the plaintiff’s legitimacy, which was not necessarily excluded by the proof. But was the evidence in fact, exactly balanced 1 The presumption of marriage from cohabitation may be rebutted by evidence of separation, without an apparent rupture. Jackson v. Claw, 18 Johns. 346. And here there was a separation, without an apparent cause, for eleven years, which independent of any rule of presumption, would be sufficient to give the evidence of legitimacy a decisive preponderance.

The facts connected with the remaining point arc, that the plaintiff’s father made an actual settlement on the land in 1798, by building two cabins on it in succession, clearing and cultivating U portion of it, designating his boundaries, and residing on it till his death in 1800; after which, his widow sold the improvement to íí person under whom the defendants claim, The lessee of Mobely v. Oaker, 3 Yeates, 200, and the lessee of Clark v. Heckethorn, id. 269, are inapplicable to the case of an improvement so recent as the present, At an early day this species of title was of sp little ac- ■ count, that it was sold as a chattel in a course of administration. 2 Yeates, 378; but in 1800, it had gradually acquired the consistence of an indefeasible estate; and although it might still be lost by abandonment, the evidence of an intention to produce that effect, was required to be clear and satisfactory. Here there is no pretence of abandonment, as b.oth parties claim by the improvement begun by Zinn, the title to which was clearly in his daughter when it was sold by her mother; so that the fifth section of the limitation act of 1785, (which has been held to operate only on equitable titles then existing,) being out of the way, the question simply is, whether she is barred by her mother’s alienation; and it is clear that, unless there is something peculiar in the case, she is not. No equity arises from the supposed application of the price to her maintenance. A sale for that object could be ordered only by the Orphans’ Court, with which the law has deposited the requisite discretion. Neither could a supposed necessity to interpose for the preservation of the inheritance from a total loss, by abandonment of the improvement, give an additional sanction to the act of the mother. I will not undertake to say that there may not, even at this day, be an abandonment by an infant. Whether any thing but an intentional relinquishment of the title, of which the circumstances are but evidence, can be effectual, and whether an infant be not incapable of such relinquishment, by reason of want of discretion, are points that may hereafter be worthy of consideration. But, whatever be the motive, it is clear that a parent has no power to divest the infant’s estate; and we discover nothing in the case to induce us to disturb the judgment.

Judgment affirmed.


text:
    JOHN ADDLEMAN against ANTHONY MASTERSON.
    ít is a fatal objection to a deposition, taken to be read in evidence in a cause, that it is in the hand writing of an attorney concerned in the cause, or specially employed by the party for that purpose, unless the , opposite party, or his attorney, be present and consent thereto.'
    An application and survey may be abandoned, but whether or not, depends on the facts to be found by the jury. The payment of fees’of office, of surveying fees, and returning the survey, are facts tending to repel the presumption of abandonment.
    An application obtained in 1766, apcl the land circumscribed by a survey, marked on the ground, but the owner pf the survey neglects to have it returned, and refuses to pay the surveying fees, aud it continued in this way, until 1785, when a warrant issued for the same land'to another. Held: That the title of the warrantee shall be preferred. '
    . Error to the special Courjt of Common Pleas of Huntingdon county, (Reed, president.)
    In the court below this was an action of ejectment brought by Anthony Masterson against John Addleman,

    The plaintiffgave as evidence of his title — 18th May, 1784, war:, rant to Walter Hood, “for three hundred acres, on a creek running into the Warrior-mark run, in or about a mile from the mouth of said branch, and about two miles from the Warrior-mark, in the county of Bedford.”-! 9 th January, 1785, certificate of the payment of the purchase money, thirty pounds. — 25th August, 1785, deed, Walter Hood ^aná wife to Phineas Massey. — 29th March, 1787, certificate of the return of survey. — 2d October,' 1795, deed, Phineas Massey to Anthony Masterson.

    The defendant then gave in evidence. — 22d October, 1766, application No. 1629, of Thomas Morris, -for three hundred acres, “ to join on the westerly a survey on a large run, which leads into the east branch of Little Juniata, about a mile eastward from the path that leads from Little Juniata to Susquehanna, in Cumberland county.” William Reed, a former deputy surveyor of the district was then called, and a draft of a survey of the land in dispute was shown to him, which he said he found in the office, when he held it in 1821; and that it had upon it the hand writing of Richard Tea, who had been the. deputy surveyor of the district in 1767. He arid all the other witnesses said that the description in the application of Thomas Morris was precisely descriptive of the land in dispute. — 20th April, 1767, deed, Thomas Morris to David Kennedy. 4th June, 1795, order of the Board of Property, on a petition for a re-survey. — 30th November, 1795, another order of the Board of Property on the subject. — 21st May, 1796, return by John Cannon, deputy surveyor, by order pf the Board of Property — 31st May, 1796, deed, David Kennedy to Michael Kryder. — 18th May, 1797, patent to Michael Kryder. — 16th October, 1797, deed, Michael

      Kryder and wife to John Addleman, the defendant. It was also in proof, that the defendant’s survey upon the ground, corresponded with the draft given in evidence, which was found in the office of the deputy surveyor;' and upon blocking the trees, they counted back to 1767, when Richard Tea had been the deputy surveyor of the district.
    Some evidence was also given to show that Masterson knew of the purchase of the land in dispute by Addleman from Kryder for a valuable consideration, and did not give notice of his claim; but this was negatived by the instruction of the court to the jury, and their finding.
    During the course of the evidence, the defendant offered the de-, position of Col. John Cannoti; which was objected to by the plain, ¡tiff, on the ground that it was in the hand writing of William Orbison, Esq. the defendant’s attorney.
    Mr. Orbison sworn. — I wrote this deposition at the place design nated. I have not a distinct recollection whether justice Still was in the room all the time or not; I remember he was in some of the time; no one appeared on part of the plaintiffs; one of the Addle-mans was there. I was requested by Messrs. Potter and Blanchard to attend to it. I was concerned in a former suit with Mr. Riddle as counsel for the defendant. Mr. Addleman spoke to me, and said he would pay me if I would go and assist him to take this deposition., I did so, he never paid me any thing, and I do not consider myself engaged in this cause as counsel. I did appear as counsel in the cause, and my name is' marked.
    The court overruled the deposition, to which opinion the counsel for defendant took a bill of exception.
    The counsel for plaintiff requested the court to charge the jury on the following points.
    1st. That unless the jury are satisfied' that the persons under whom the defendant claims, had a legal survey upon the ground in controversy, before the date of the warrant under which the plaintiff claims, the plaintiff is entitled to recover.
    2d. That unless the jury have satisfactory evidence that a survey was made, by virtue of the application of Thomas Morris, by the proper deputy surveyor, before the date of the, warrant to Walter Blood, the law will presume the application to have been abandoned.
    3d. That even if the jury are satisfied that a survey ivas made by the deputy surveyor, by virtue of the application of Thomas Morris, previous to the date of the warrant of Waller Hood, yet if no money was paid on the application, but the fees of the office, and no Purveying fees paid before the date of the said warrant, and the survey not returned, the jury, under the circumstances of this case, may consider the application and survey to have been abandoned. ' . ■ '

      4th.' That the deputy surveyor was not bound to return the survey until his fees were paid, and that due diligence has not ■ been used in this case to perfect the title of the defendant, as against the title of the plaintiff
    The'counsel for defendant requested the court to charge the jury on the following points:
    1st. That if the jury believe, that the application of Thomas Morris, under which the defendant claims, is descriptive of the land in controversy, and was actually surveyed on the ground in 1767, by the then deputy surveyor, that the omission o.f the deputy surveyor to return the survey into the office until 1795, does not prejudice the defendant’s-right; and that he would be entitled to hold the land in preference to a subsequent warrant and survey in 1784.
    2d. That the doctrine of abandonment does not apply to a descriptive location of 1766, actually surveyed in 1767, conveyed by deed poll in 1707, re-surveyed in 1796 on an order of the Board of Property of 1794, and patented in 1797; and can have no bearing on the present cause.
    3d. That, the draft found in the office of the deputy surveyor, endorsed, by Richard Tea, the deputy surveyor, as the draft of , Thomas Morris’ survey on his location, in connection with the lines found on the ground, is prima facie evidence that the survey was made on Morris’ application; and unless rebutted by other testimony, js conclusive of that fact.
    The court in their answers to the several points put by the counsel on the one side and the other, left the fact to the jury, whether the delay to have the survey, upon the application under which the defendant claimed, returned for nearly twenty years, was the fault or neglect of the party; and if so, upon the whole case, the plaintiff was entitled to recover. If it was the fault or neglect of the deputy surveyor, the party would not be prejudiced thereby.
    The jury found a verdict for the plaintiff

      Blanchard and Potter, for plaintiff in error.
    Whether the location was absolutely descriptive or vagué, it became certain when it was surveyed;' and there could then be no presumption of abandonment, although the _surveying fees were not paid. Bowman v. Thomas, 4- Bin. 51. Lessee of Biddle v. Dougal, 5 Bin. 142. The doctrine of abandonment is only applicable to those claims to land which are not founded upon contract, such as improvement rights; but a location is a contract, which" there can be no presumption would be abandoned, unless there be proof of facts which will induce the jury, to believe that such was the intention of the party. Lilly v. Paschel, 2 Sere. Sr Rawle, 395.
    A deposition written by an attorney in the cause is not exceptionable-on that account: the case of Swnmers v. M‘Kim, 12 Serg. Sp

      Ramie, 406, is much stronger than this; there the deposition was not written in the presence of the justice, here it was, and by one who was not an acting attorney in the cause.

      Miles, for defendant in error,
    whom the court requested'to confine himself to the first point.
    No money whs paid upon the location but the mere fees of office* seven shillings: and the jury have found that the surveying, fees were not paid, no survey returned for twenty-eight years, and this because of the negligence of the party. No act whatever in relation to the land in dispute had been done by those under whom the defendant claims, for nearly twenty years before the plaintiff’s title commenced. The policy of the law will not suffer a man to ■ select a tract of land and just do such acts respecting it, as ■Will not make him-liableto pay, the common wealth, for it, but will prevent the commonwealth from disposing of it to another, who is willing to pay for it. That a claim like that of the defendant may be abandoned is fully settled. Gilday v. Watson, 11 Serg. Sf Ramie, 340.-Boyles v. Kelly, 10 Serg, Rctmle, 217. Chambers v. Mifflin, ante, 78.

   The opinion of the court was delivered by

Rogers, J.

The rejection of the deposition of John Cannon? comes within the principle of Summers v. M‘Kim, 12 Serg. & Rawle 410. It is immaterial whether Orbison was concerned in the Conduct of the suit or not, as it appears he Was specially employed to take the deposition of the witness. There is as much danger from testimony taken under' such circumstances, as when the attorney is retained generally for the trial of the cause. Nor would it have altered the case, if Orbison hád been specially authorised to write the deposition. It is not competent for the justice to make the attorney of one of the parties his clerk, to take a deposition, unless with the express consent of the other jparty, or in the presence of his attorney, and acquiesced in by him. We concur in the sentiments of the chief justice, in Summers v. M'Kim, and feel no disposition to relax the rule established in that case.

The remaining exceptions apply to the charge. It is said the court were in error, in instructing the jury that they might presume an abandonment of the defendant’s right, under the application of Thomas Morris.

' It was in evidence, that on the 22d October, 1766, Thomas Morris made application for three hundred acres of land, to join westerly a survey on- a large run which leads into the east bra'nch of the Little Juniata, about a mile, eastward from the path that leads from Little Juniata to Susquehanna, in Cumberland county. It was submitted to the jury, as a question of fact, whether there had been a survey made on the ground, whether the survey had been returned, and if. not returned, the reason it was not. The court was requested-to say: that unless the jury had satisfactory evidence' that a survey was made by virtue óf the application of Thomas Morris, before the date of the warrant to Walter Hood, the law will presume the application to have been abandoned. That even if the jury are satisfied, that the survey wds made previously to the date of the warrant to Walter Hood, yet if no money was paid on the application but the fees of office, and no surveying fees were paid before the date of the warrant, and the survey mas not returned, the jury, under .the circumstances of the case, may consider the application and survey to have been abandoned. The court were further requested to charge the jury, that the doctrine of abandonment does not apply to a descriptive location, (which it was contended this was;) of the year 1766, actually surveyed in 1767, conveyed by deed poll in 1767, re-surveyed in 1796, on the order of the Board of Property of 1794, and patented in 1797.

It was given in charge to the jury, that an application and survey may be abandoned. That whether there was an abandonment or not, depended on the facts foimd by the jury; 'hut that payment of fees of office, of surveying fees, and returning.the survey, are facts tending to repel the presumption of abandonment. That if the application was obtained in 1766, and the land circumscribed by a survey marked on the ground, hut the owner of the survey refused to have it completed or returned, and refused on that account, to pay the surveying fees, and it continued in this way until 1785, when the warrant issued to Walter Hood, on which he made his survey, the latter would have a preference. < In this direction we perceive no error. On the contrary, the charge of the court is in accordance with all the cases, many of which have been cited and relied on in the argument of counsel. The transaction must be viewed as it stood in 1785, when Walter Hood obtained his warrant, and made his survey. It is only by shutting our eyes to the state of things at that point of time, that any difficulty can arise; for the real question' is, might the jury presume the application to have been then abandoned, or was Morris right in considering[the application abandoned, when he obtained his warrant. In 1785, as the jury-have found, although Morris had made an application for the land, and had made a survey, yet the survey had not been returned, because the owner of the survey had not paid the surveying fees. The failure to return the survey is not the fault of the deputy surveyor,'but arises from the act or neglect of the party himself, for the deputy surveyor, as has been decided, is not bound to return the survey until the surveying fees have been paid. It would have the most mischievous effect, if it were competent to an individual to put in an application on which he pays no' money to the commonwealth; with a description which may apply as well to other tracts, have a survey made upon it, and then by his own act or neglect, without any default In the deputy surveyor, withhold the return of survey for near twenty years. It would operate very much to the injury of the commonwealth, as it would enable individuals to obstruct the improvement of the country, by preventing the commonwealth from making a new grant of the land. Even a precisely descriptive warrant must be followed up with reasonable attention, in order to give title, from its date; so also the same course must be pursued on a vague warrant, to give title from the time of survey.If the owner of a vague or x-emoved warrant suffers it to remain unreturned, for more than twenty-one years, and during that time has exercised no acts of ownership upon the land, the State, or any person, has a right to consider it as dej-elict, and whoever purchases, and pays for the land, under such circumstances, has a good title. 1 Penn. Rep. 74, Chambers v. Mifflin. Mr. justice Huston, in delivering the opinion of the court, says. “Although a warrant has been .surveyed, yet if not returned, the owner may change its lines, or change its place altogether, and lay it on any other vacant land any where near; until it is returned, the State has no power to collect arrears of purchase money. It never can be, that a man can wait thirty or forty years, and all that time, be able to say, this is my land if I please, and not mine unless I please. I will take the land and pay the State for it, if the country improves, and it rises in value, or if somebody will render it valuable by improvement ; but I will not take it, and pay the purchase money, unless something occurs to render it more valuable. Nor is it the law* that a man can commence procuring a title, from the 'State, and from pure negligence leave it in such a situation, for more than twenty years, as that he is not bound to take it, and no one safely can.”

The plaintiff in error, relies upon the re-survey in 1706, on the order of the Board of Property, in 1794, and the patent in 1797; and this to be sure would be sti'ong evidence, that after 1785, the owner of the application would not wish to be considered as having relinquished title to the land. But it must be kept in view, that previously, to this time, the right of Walter Hood had intervened, and that nothing the plaintiff in error could have done afterwards* would effect that right. The question must be determined upon the titles as they stood at the time of the warrant and survey to Walter Hood.

Judgment affirmed.


text:
    SORTILE HOLDEN, et al. against JAMES P. BULL, Treasurer of Bradford county.
    A judgment entered upon a bond, in the penalty of one hundred dollars, with a warrant to confess a judgment, having a condition thereunder written, that the obligor will pay a fine and bill of costs, then uncertain as to amount, is valid.
    If an execution issues upon such ajudgment, forthepenalt.y, before the real amount due is ascertained, it will be set aside on a writ of error.
    Error to the Common Pleas of Bradford county.

      Sorlile Holden, together with Gustavus A. Holden, as his security, executed a judgment bond to “the treasurer of Bradford county, for the time being,” in the penalty of one hundred dollars, with the following condition thereunder written.
    “That the said Sorlile Holden, one of the subscribers, shall well and truly pay, or cause to be paid, a certain fine and bill of costs, agreeably to the sentence of the court of Quarter Sessions, passed upon the said Sortile Holden, in consequence of a suit in behalf of the commonwealth against the said Sortile Holden, upon which said Holden was in prison, and this instrument is taken to cover fine, and all costs which accrued in consequence of said suit. Witness, tj-c.”
    The fine and costs not having been paid, the judgment bond was filed, and a fierifacias issued thereon: when this writ of error was sued out by the defendants, who assigned the following errors.
    1st. The judgment is entered on a bond or promise, conditioned for the performance of matters contingent, doubtful and uncertain, and which require pleadings and trial.
    2d. The face of the instrument shows the execution issued for a sum of money, which was not judicially decreed to the plaintiff

      Ingham, for defendant in error,
    whom alone the court heard on the second error assigned, contended that a writ of error was not the proper remedy of the party in a case like this. There was no inteiition to collect more than the fine and bill of costs off the defendants, and if there was any injury likely to result to them, their proper remedy was to apply to the court below to protect them: or even a judge at his chamber may grant relief, Lewis y, Smith, 2 Serg. Sf Razóle, M2.

   Judgment affirmed, and execution set aside.


text:
    NATHAN STEWART, et al. against ELEAZER BALDWIN
    Costs are not recoverable by either party in an action of partition.
    Costs are exclusively a matter of statutory creation.
    Error to the Common Pleas of Tioga county.
    This was an action of partition brought by Eleazer Baldwin, against Nathan Stewart and John Bruce, in which the defendants plead non tenent insimul. The cause having been tried by jury, a verdict and judgment was rendered for the defendants.' A fi.fa. was then issued against the plaintiff for costs,'including a bill of defendants’ witnesses, amounting to two hundred and seventy-six dollars and ninety-seven cents.
    The plaintiff’s counsel obtained a rule to show cause why the ji. fa. for costs should not be set aside; on the ground that costs are not recoverable in an action of partition; which at a subsequent term was made absolute. The defendant then sued out this writ of error.

      Greenough, for plaintiff in error.
    A declaration in partition always concludes to the damage of the plaintiff. Plead. Asst. 304. If damages are recoverable so are costs. If then the plaintiff may recover costs, the Slat. 23, Hen. 8, gives costs to the defendant. Between coparceners damages in partition are not recoverable, but in other cases, where the right to have partition is denied, they are. 2 Bac. Ah. 45, 266. Stat. 17,Edw. 3, ch. 71.

      Parsons and Willeston, for defendant in error.
    No damages or mesne profits are recoverable in an action of partition, but may be in account render. 2 Bac. Ab. 44. Roberts’ Dig. 207. The Stat. 23, Hen. 8, has been restrained to cases of personal wrong. Penn’a Prac. 150. Sayer on Costs, title Coparceners. Commonwealth v. The Com. of Philad. 8 Se>’g. Sf Rawle, 155. Costs are never recoverable except by' statutory provision.
   Per Curiam.

We have inquired into the practice since the argument, without having ascertained that there has-been a departure from the provisions of the English statutes, according to which costs are not allowed in. partition; and however unreasonable this may be,-yet costs being exclusively a matter of statutory creation,, it is'plain that the remedy lies not with us, but with the legislature. The judgment for the defendant without costs was therefore regular.

Judgment affirmed.