text:
    Calhoun v. Cook.
    The mother of a child to whom land was devised for life, subject to her life-estate in one-third, continued in the exclusive possession of the whole tract for thirty-two years after her son’s death, claiming title as his heir, and paying the taxes, hut acknowledging the reversionary interest to he in the heir of the testator: such declarations are admissible, and sufficient to rebut the inference of her holding adversely to him.
    Devise of a plantation subj ect to the life-estate of the devisee’s mother in one-third, passes hut a life-estate.
    In error from tbe Common Pleas of Westmoreland.
    In 1808, Cook devised “ unto my grandson, Edward Cook, the plantation on which his father lived, and $150, subject to his mother’s dower, or one-third during her natural life.” The devisee was a child of an illegitimate son of the testator* and died in 1813. His mother, the devisee for life as to one-third, was then in the occupancy of the whole plantation, and continued such occupancy until her death, in 1845. During this period, she and her husband paid the taxes. It was proved that she entered, claiming to be heir of her son, and that she successfully resisted proceedings in partition by the brothers and sisters of her son on that ground. But it was proved that she repeatedly admitted she had but a life-estate, and that, on her death, the land would go back to plaintiff, the heir of the testator; and that she refused to permit timber to be cut and improvements to be made for that reason.
    Burrell, P. J., instructed the jury they might find, from this evidence, that an intention to hold the two-thirds adversely to the heir of the testator, was wanting.
    The court also rejected certain records; but the matters to be inferred from them were proved by parol.
    These, and the charge, were the errors assigned.

      Cowan, for plaintiff in error.

      Oct. 23.
   Gibson, C. J.

The devise to Edward, the child of an illegitimate son of the testator, gave him an estate for life in two-thirds of the plantation occupied by his father, which was spent at his death, and the reversion of the fee descended from the testator to the plaintiff, his only legitimate child. The implied devise to the mother, gave her the other third for life; and, from the death of Edward, she and the plaintiff were tenants in common. Thenceforth till her death — a period of thirty-two years — she was in the exclusive perception of the profits; and whether adversely to the plaintiff’s title, is the question presented by the facts and circumstances. In our own court, the leading case for the leading principle is, Morris v. Vanderen, 1 Dall. 67; in which an exclusive perception of profits, without other proof of adverse possession, was not allowed to constitute an ouster of a co-tenant. As to badges of adverse possession, the decisions are not entirely consistent. Frederick v. Gray, 10 S. & R. 182, is the leading case for that; and it was laid down by the Chief Justice, that the taking of the whole profits must be under a claim of exclusive right, signified by treating the land as if it were the exclusive property of the tenant in actual possession — a criterion recognised in Mehaffy v. Dobbs, 9 Watts, 377, in which a separate and independent possession of a part of the land was inferred from an actual line of demarkation set up by one of the children. The acquiescence in it by the rest of the family, who tilled the residue of the farm in conformity to it, was thought to be an explicit acknowledgment of ouster. The doubt expressed about that case, in Bolton v. Hamilton, 2 W. & S. 299, was properly disposed of by saying, with truth, that the intention was to bring the decision exactly to the line of Frederick v. Gray, with which the dictum in Hart v. Gregg, 10 W. 190, that entire perception of the profits, under a claim ■ of exclusive right, raises no presumption of ouster, does not exactly coincide. Frederick v. Gray is, therefore, still the standard case. But the possession of a co-tenant may be impressed by the same circumstances that would impress the possession of any one else; and we are to inquire whether the mother’s possession in this instance was, according to the accurate definition of adverse possession by Mr. Justice Duncan, in Hawk v. Senseman, 6 S. & R. 21, “ actual, continued, visible, notorious, distinct, and hostile.” At the death of Edward, his sisters, believing his estate to be a fee, filed their petition in the Orphans’ Court, for an inquest to make partition of it; which was successfully-resisted by the mother, on the mistaken ground that she herself was the heir of her son. Her interposition was certainly a claim of right, and sufficient, in the first instance, to make her perception of the profits exclusive, and the possession hostile to the plaintiff and every one else. But, as hostility must be continuous as well as possession, the course of the statute is arrested by an acknowledgment of the antagonist title. There was, perhaps, no absolute acknowledgment of the plaintiff’s title; but there was enough in the case to show that she was ready to submit to it, if it should turn out to be the better one, as she thought it would; and that she did not mean to hold in hostility to it in the mean time. She was in doubt about the right, but certainly evinced no determination to set up her own title against it. To Barnets, the. defendant’s witness, she said the property would go to the children of her first marriage, at her death; that she had claimed it as the heir of her son, and that she had gone into possession of it, as she had supposed, under a judgment of the court. Nothing in this like defiance. She was in doubt as to the right, but evinced no disposition to set up her own title in opposition to it. To her tenant, McClean, she said the property would go back to the plaintiff, at her death, and that her daughters would not get a foot of it, for it would go back to Jimmy Cook;” and she repeated pretty much the same thing to Blackburn and Brown. These declarations are direct evidence of the yielding and peaceful character of her possession, and of her own opinion of it. Now, if she did not intend to hold in hostility, it is settled by Criswell v. Altemus, 7 Watts, 581, and Sailor v. Hertzogg, 2 Barr, 182, that her possession was not adverse. She had a mistaken notion that she was entitled to the whole during her life, which seems to have been equally shared by the plaintiff; for, had he known of his right, he would scarce have lived so long in the neighbourhood of the property without asserting it. But possession taken in mutual mistake of right was held, in Comegys v. Carley, 3 Watts, 280, not to be adverse. For the same reason, perhaps, it was said, in Gray v. McCreary, 4 Yeat. 494, that the doctrine of adverse possession is not applicable to questions of boundary with its usual force. For want of adverse intention, it was held also, in Buckholder v. Sigler, 7 W. & S. 154, that the title of a party who, having purchased a small piece of ground to overflow it, let it remain twenty-one years within the vendor’s enclosure, but unaffected by any positive act of adverse possession, was not barred. It was, indeed, held, in Leeds v. Bender, 6 W. & S. 315, that tbe statute is a bar to a title not known or beard of by tbe oecup^t; but tbe reason is, that as be cannot elect to bold in subservience to a title of wbicb be is ignorant, be can do no act to show a qualification of bis possession in regard to it; and, not suspecting tbe existence of an adverse claim, be bolds for bimself against all tbe world. But when be is apprised of sucb a claim, be may show, by bis declarations or bis acts, that be does not seek to oppose it. No intention to oppose tbe plaintiff’s title was evinced in tbis case, and it stands clear of tbe statute.

Tbe questions of evidence are thus become, unimportant; but it is proper to say that tbe rejection of tbe proceedings in tbe Orphans’ Court, as a foundation for proof that tbe mother bad set.up a claim to tbe fee, was immaterial, because tbe defendant was allowed to introduce bis evidence of tbe fact without it. Tbe record of the decree of sale for payment of tbe son’s debts was no better. Tbe petition for tbe sale was the act of tbe administrator, wbicb involved no assent of tbe mother; and, having no bearing on her subsequent intention, it was properly excluded.

Judgment affirmed.


source: Caselaw Access Project

author: Coulter, J.

license: Public Domain

text:
    Beers v. Robinson.
    Where A. promises B. to pay B.’s debts so far as the consideration received wold go, the creditor of B. may maintain an action on the promise.
    In error from tbe Common Pleas of Armstrong.
    The plaintiff in tbis case was a creditor of Keenan, and proved that Keenan’s property was sold at auction, and tbe notes'given by tbe purchasers handed to defendant, who promised Keenan to pay bis debts so far as they and tbe property purchased by defendant would go.
    Burrell, P. J., told tbe jury tbe plaintiff could maintain tbe action.
    An agreement was offered in evidence by defendant, but what it was could not be gathered from tbe paper-book.

      Buffington, for plaintiff in error.

      Phelps, contra.

      Oct. 23.
   Coulter, J.

The article of agreement between A. Beers, administrator of Cravener, an<|^J. Keenan, was properly rejected by the court. It was totally irrelevant to the issue, and could not have had any legitimate influence on the result.

The instruction of the court, which is assigned for error, is right. One for whose use and benefit a promise is made, if upon sufficient consideration, may maintain an action upon it; 2 Watts, 104; 17 Mass. Rep. 400; 4 Watts, 134. Keenan sold his property at a vendue, and in consideration that he would assign and transfer these notes to the defendant, he agreed to pay Keenan’s debts, unless they amounted to more than these vendue notes, and in that event, so much of the debts as equalled the vendue notes. The defendant got the notes and collected them. The plaintiff, one of Keenan’s creditors, brings this suit against Beers on the promise above stated. The defendant does not allege that he has not received the amount of the notes, nor that he has exhausted the fund by payment of other debts due by Keenan; but stands on the ground that this action cannot be maintained by the plaintiff, the acknowledged and proved creditor of Keenan. But the action can be sustained on the authorities which I have cited.

Judgment affirmed.


author: Rogers, J.

text:
    Jamieson v. Pomeroy.
    Where a judgment is entered generally and one of the parties was not served, this court will reverse as to him, and affirm as to the others, under the act of 1836.
    A note was payable to Maj.-P.; the plaintiff was J. P., and the evidence was that on presentation of the note to defendant, since suit brought, no objection was made on account of the variance of the names or to the authenticity of the note: the note may be read to the jury.
    In error from the Common Pleas of Indiana.
    Debt by James Pomeroy against the three drawers of a note, payable to Maj.-Pomeroy. An objection was made that it was payable to Maj. Pomeroy and not James Pomeroy. The plaintiff then proved that after suit brought, his attorney presented the note to one of the defendants, who examined it and made no objection to its authenticity, or the variance between the name of the plaintiff and the payee. The court then permitted the note to be read.

      The judgment was entered generally for plaintiff, whereas one of the defendants had not been served; and this, with the admission of the note, was assigned for error. The narr. was not on the paper-book.

      Drum, for plaintiff in error.

      Fenlon, contó.

      Oct. 20.
   Rogers, J.

The first exception is to the admission of the note on which the suit is brought. The note contains a promise by the defendants to pay $100 to Major Pomeroy. It is somewhat difficult to understand the precise nature of the exception to the evidence. The plaintiff contends it was nothing more than an objection to the execution of the note, and that this objection being removed by proof of the acknowledgment of the defendants that it was justly due, it was permitted to be read to the jury. It is contended, however, that the exception extended further; viz: that it was not proved that James Pomeroy and Major Pomeroy were one and the same person. On the latter part the testimony was slight, but slight evidence will suffice. The proof consists in this, that when the note was pushed to payment by Mr. Fenlon, who was James Pomeroy’s attorney, it was examined by Jamieson, who made no objection to its autheriticity, and said nothing about the note being made payable to Major Pomeroy instead of James Pomeroy. This would seem to be an admission that they were the same, at least, so as to justify the court in allowing it to go to the jury. .

But the defendants further contend that there is error, because the narr. charges the defendants jointly, and the judgment is entered generally against them, whereas the writ was not served on James Fleming, nor does he, either by himself or attorney, enter an appearance to the writ. That the judgment is erroneous, cannot be denied; because it is a judgment against a.person, not a party to the suit, and who had no opportunity of being heard. The judgment is entered generally, and in all probability was intended as a judgment only as against those who were served with process. It is, therefore, but a matter of form, not extending at all into the merits of the cause, which has been fairly tried. These slips in practice we have every disposition to disregard, whenever it can be done consistently with law, and without injustice to the parties. And this power we have by virtue of the act of the 16th June, 1836, entitled, An act relative to the jurisdiction and powers of the court, which confers on this court the additional authority to modify, as well as reverse and affirm the judgments of the subordinate courts, in criminal as well as civil cases. And this has been done several times in criminal cases, although this is the first case where the authority conferred by the act has been exercised in a civil action. Here the judgment may be modified without injustice to any human being. Two of the defendants cannot complain, because they have had the benefit of a fair trial. The other cannot, because he is released from the judgment, erroneously entered against him.

The court order the record to be amended or modified, by reversing the judgment against James Fleming, and rendering judgment against Samuel J. Jamieson and James Nelly.


text:
    Altemus v. Trimble.
    A settler wlio has marked the boundaries of his claim by an unofficial survey, including land within the bounds of warranted and surveyed land, has not such adverse possession of the interference by reason of thus marking the lines that the statute of limitations will commence running in his favour from that time, though he resided within the lines of his claim, and subsequently cleared over the line of the warranted tract.
    In error from the Common Pleas of Indiana.
    The plaintiff in this ejectment had the legal title to the land in dispute, under a warrant and subsequent patent. The defendant was a settler on adjoining land in 1819, when he marked the lines of his claim and had it surveyed. In 1820, he cleared over the lines of plaintiff’s tract, and occupied the whole until 1840, when the plaintiff’s tenant entered and occupied the whole of his tract.
    Burrell, P. J., instructed the jury, if Trimble, an actual settler upon adjoining lands, by unofficial survey had his boundaries designated by marks upon the ground, including a portion of the land within the plaintiff’s survey, he must be considered as in the actual possession according to his designated lines; and if he aftei*wards enclosed and cultivated a portion of the interference, and occupied it in the same manner as the other land within his lines, and his actual possession was not interrupted for the period of twenty-one years from the time he so designated his boundaries, by an entry of the plaintiff, or any one under him, the defendant would be protected from a recovery in this action by the statute of ■ limitations.

      Drum, for. plaintiff in error.

      Banlcs, contrff.

      Oct 23.
   Coulter, J.

(after stating the evidence and charge.)— The learned court thus throws back the adverse possession of the defendant and the operation of the. statute to the time of marking a few trees, without authority of law, within the plaintiff’s lines. Thus, before a stone is rolled from its bed, or bush grubbed from its place, or a tree felled to the earth by the defendant on the plaintiff’s land, so as to give him any notice, the statute is made to run against him. The plaintiff, if he traversed his land occasionally, and perceived these marks, whether they were two or a dozen, may have supposed that they were made by a hunter of deer, or to designate a path. He could see no improvement or actual occupancy within his lines: upon whom, then, would hé make his entry ? or against whom would he bring his ejectment ? The statute of limitations was not made to steal people’s land from them, but for the quieting of estates and the greater security of real property. It imposed a forfeiture upon those who permitted an estate to grow up under their eye and knowledge, and become permanent by an actual, notorious, adverse possession, for twenty-one years. But an alleged possession or claim, which was neither notorious, palpable, nor visible within the plaintiff’s lines, never was intended to work a divestiture of title. The seisin or possession of the plaintiff was not ousted or removed by making these marks, unauthorized by law, whether they were few or many, within the plaintiff’s lines, unaccompanied with any actual occupancy by clearing, grubbing, or fencing within those lines, so as to give him warning of danger.

The court carried the statute far, very far, and beyond the limits of a just regard to the security of estates and the rights of the owner of a legal title from the commonwealth, on whose faith and solemn deed he relies.

It is not necessary to notice the other error assigned, as to the observations of the court upon the entry of Wilson by permission of Altemus, because the point does not appear to have been made in the court below; and the recovery in ejectment alluded to in the testimony, the issuing of execution, &c., &e., and the acts of the sheriff, ought to be set out in order to enable the court to give a satisfactory opinion on the subject. If it should hereafter be necessary on a new trial, the plaintiff had better be more explicit in his testimony.

Judgment reversed, and a venire de novo awarded.


text:
    Thompson v. Thompson.
    The probate of a -will of personalty is conclusive evidence of the will in all collateral proceedings; though the certificate state that proof was made by one witness.
    In error from the Common Pleas of Indiana.
    Debt for a legacy. The plaintiff gave in evidence the will of Thompson, admitted to probate on the 30th December, 1815, on the oath of the two subscribing witnesses; and also a codicil, under which she claimed, the certificate.on which stated that it was duly proved “by Robert Craig, the subscribing witness,” on the same day.
    The court rejected it, because proved by but one witness.

      Drum, for plaintiff in error.

      Stewart, contrh.

      Oct. 23.
   Coulter, J.

The certificate of a probate of a will was always conclusive in England, as to personal estate. It was held, in Allen v. Dundas, 3 T. Rep. 125, that the probate unrepealed is conclusive evidence of a will of personalty, and therefore payment of money to an executor who has obtained probate of a forged will, is a discharge to the debtor of'the intestate, though the probate be afterwards declared null and void: and in Coe v. Westernham, 2 Selw. N. P. 12, it was resolved, that the probate is the only legitimate evidence of personal property being vested in the executor, or of the executor’s appointment.

By the 5th section of the act of 1832, the register has jurisdiction of the probate of wills ; and by the 31st section of the same act an appeal is given from all judicial acts of a register to the register’s court. The probate of a will is a judicial act; and, as such, the probate by the register cannot be declared void in a collateral proceeding. Although the will may be controverted in an action of ejectment, in which the realty is implicated, yet the probate by the register is primd facie evidence: 6 S. & R. 223, 3 Binn, 498; and in Logan v. Watt, 5 S. & R. 212, it was held that the certificate of the register of wills, that a will of lands had been duly proved before him, and a copy thereof is annexed, is primd facie evidence of such will, though a copy of such probate is not set out. The same point was ruled in 10 S. & R. 84.

In the present case, the register makes what is substantially a decree that the codicil was duly proved before him on the 30th December, 1815, by the subscribing witness. He does not say that no other person was examined; and the presumption is at least in equilibrium between another person being sworn and no other person making probate. Every fair intendment ought to be made in favour of the correctness of the proceeding, after this lapse of time. The will and the codicil have been acted upon for more than thirty years by the devisees; and as the codicil, operates on the personal estate, which alone is in contest in this suit, the probate must be considered not onlj primd facie, but conclusive.

In Doe v. Pearce, 2 Moody & Robin, 240, it was held, that an unproved will, more than thirty years old, coming from the possession of one of the family of the testator, may be read in evidence, without accounting for the subscribing witnesses, though the person producing it was not strictly entitled to the custody.

The codicil ought to have been admitted in evidence, and it was error to reject it.

Judgment reversed, and a venire de novo awarded.


text:
    Jack v. McKee.
    In an action to recover tlie value of services, it is competent to prove that a promissory note was given by defendant, payable after Ms death, without producing or accounting for the note, to show the value he placed on the services.
    The measure of damages for breach of a contract to compensate a party for services by a gift of land is the value of the land, and the contract is not within the statute of frauds.
    Where a contract was proved to compensate a party by a gift of land for services to bo rendered until the testator’s death, a bond delivered by the promisor, for the payment of money, stating that to be the amount of his indebtedness on a final settlement, is prim& facie evidence of a final settlement of all claims up to that date. But if it be shown that there were other pecuniary transactions preceding the date of the bond, and the services were continued up to the death of the promisor, it is a question for the jury, whether the promise to give the land was included in such settlement; if not, it still continues binding.
    In error from the Common Pleas of Westmoreland.
    The plaintiff declared upon a contract by the ^defendant's testator, that in consideration of the plaintiff continuing to live with him and take care of his house until he died, he would give her a certain piece of land; and also on the common counts.
    The first exception was to the admission by the court of proof that the testator had given plaintiff a note for $1000, payable after the testator’s death. The noi¡e was not produced, nor any account given of it.
    The other exceptions were to the charge. The plaintiff proved the contract to give her the land, by Elizabeth McGarr, and by several witnesses proved promises - to compensate her for her services ; but none of these witnesses stated the mode agreed upon for doing this. Elizabeth McGarr stated that she had never been at the testator’s house since May, 1842. It was in evidence, that in September, 1842, testator had given plaintiff the following instrument, upon a settlement had between them:—
    " On final settlement, I stand indebted to Miss Ann McKee, two hundred and eighty-eight dollars, exclusive of two former notes, wherein David Eichar is bail. Witness my hand and seal, this 17th day of September, 1842.
    " Mathew Jack, [seal.]’ ’
    He had previously given her two bonds, guarantied by Eichar, in consideration of land purchased from plaintiff. But it was proved that in the fall of 1842, plaintiff was the owner of certain cows, grain, &c., which she then sold to the testator.
    There was also evidence, that after this she had left the testator’s house for some months, on a visit to her sister; but the jury found that this was with his consent, and partly on his business, and that she afterwards returned and continued with him until his death.
    Burrell, P. J., instructed the jury, that the measure of damages for the special contract, if proved, was the value of the land agreed to be given as a compensation for her services. (This was the second exception.) He further said, the bond of September 17th was frimA facie evidence of a final settlement between the parties of all matters prior to that time, unless plaintiff had shown that her services were not then taken into account. But if this bond was in settlement of the purchase of the grain and cows only, then it would not conclude her. (This was the third exception.)

      Kuhns, for plaintiff in error.

      Gowan, contra.

      Oct. 28.
   Rogers, J.

(after stating the exception to evidence.)— The objection to the admission of the evidence is general. If, therefore, it was admissible for any purpose, there was no error. Had it been offered as a substantive claim under the money counts, it could not have been received; as, in that case, it would be necessary to produce the note or give evidence of its loss, before proving its contents. Had the testimony been opposed on that ground, no doubt the plaintiff would have declined any such intention, as it is very evident, from the whole course of the cause, such was not the view taken of it, either by the plaintiff’s counsel or the court. But although not testimony for that purpose, we see no objection to it as an item of evidence showing the intimate relation of the parties to each other, and the value the testator attached to her services. It is rather the proof of a fact which may be made out without the production of the paper or proof of its loss, as was decided at this term. That such evidence may be given to show the relations of the parties to each other, appears from Postens v. Postens, 3 W. & S. 127.

The plaintiff contends the court erred in leaving it as a question of fact for the jury to find, that the note of 17th September, 1842, was not a final settlement of all accounts between plaintiff and defendant’s testator, including her claim for services. We see no exception to the course pursued by the court. After stating to the jury that the settlement was primd facie evidence of a final settlement of all matters between the parties up to that period, they properly observe that the plaintiff contends that compensation for services formed no part of the settlement in September, 1842. That she had sold land, grain, and cows to M. Jack, and that the settlement was of those transactions; that her contract was not abandoned, as was alleged by defendants, but that she went down the river for a temporary absence, with Matthew Jack’s consent; and that she returned to his house and service under his direction, and remained there till his death. If there be any evidence of these facts, it was an answer to the allegation that the settlement included her claim for services under the special contract. But admitting this view of the case, the defendants contend there is no evidence whatever to rebut the primd facie evidence, and that it was error to refer it to the jury for their decision; and that the defendant was entitled to a peremptory charge that there was a full and final settlement between the testator and the plaintiff, including the compensation for services. On the argument of this point, great stress is laid on the testimony of Elizabeth McGtarr. The settlement took place on the 17th September, 1842; and the last time she was present was some time in the spring of 1842. From this it is contended that she cannot give evidence as to the intentions of the parties to the settlement. That this weakens the force of her testimony on the point that she left Jack for a temporary purpose, is most true. But it does not.destroy it altogether, as she positively asserts that Ann McKee never left Jack to stay away altogether. She went, as she says, on a visit to her sister. It is true, she also adds, she went away in the fall of 1841, and returned in the spring of 1842. She -went partly on his business and partly on her own. In corroboration of this belief (for perhaps it is nothing more), it appears that many letters passed between Jack and Ann McKee, which, unfortunately, though given in evidence,- are not now forthcoming; and this continued up to the time of her final return and resumption of her employment as his housekeeper. It also appears in evidence, by several witnesses, that Jack -was exceedingly anxious for her return, and that he applied to others to hasten that much-desired event. Now, striking out all the testimony of Elizabeth McGarr, in relation to the settlement, how does the case stand ? It must be recollected, that after the verdict of the jury, we must take it as an established fact, that there was a special contract between the parties, not to take effect, so far as regards the payment for her services, until the death of Jack; that there is some- proof, at least, that she left Jack’s house for a temporary purpose only, that she was still considered as in his employment, and that there were other transactions and dealings to which the settlement might refer. In view of all these facts, what is -the natural presumption ? It seems to me the presumption is, that it was a settlement of their pecuniary transactions, and cannot, by any fair construction, be made to apply to services not yet ended, and for which payment could not be demanded until the death of Jack. And this view of the case is strengthened by the words of the settlement itself. “On final settlement,” says Jack, “I stand indebted to Miss Ann McKee two hundred and eighty dollars, exclusive of two former notes whereon David Eichar was’bail;” evidently referring to their pecuniary transactions. Not a word is said in reference to compensation for services, which cannot be accounted for on the supposition that they were included in the settlement. It is imputing to Jack an ignorance of the common mode of transacting business; which cannot in justice be attributed to him, as he was at least a man of ordinary capacity. So far from there being no proof proper to be submitted to a jury, it seems to me impossible to doubt that compensation for services never entered into the contemplation of either of the parties, when the settlement was made. On the hypothesis that the contract is as it has been found by the jury, a subsisting contract, it would be charging both with folly to suppose they had any such intention.

I come now to consider a point much pressed and relied on in this and a subsequent case, Bash v. Bash’s Administrator, argued at this term. It is the answer of the court to the second point: That the plaintiff is only entitled to such damages as would be a reasonable compensation for the services rendered.” The cotot gave a negative answer to the point, and instructed the jury, that the measure of damages was the value of such lands, formerly of her father, as belonged to Mathew Jack at the time of his decease. To understand the answer, it is necessary to remark that the contract as found by the jury was, that the plaintiff was to give her services to Jack during his life, and, as a compensation, Jack was to give her at his death a farm which formerly belonged to her father, containing one hundred acres, worth, according to the estimate of the plaintiff, three thousand dollars. Jack, wholly oblivious of his contract, made his last will and testament, devising the residue of his estate, including the. tract in question, to his brother and executor, William Jack. This suit is brought to recover the value of her services on a breach of that contract; and the question is, What is the measure of damages ? The defendant contends it is a reasonable compensation for her services as between master and servant; the plaintiff insists she is entitled to compensation, according to the estimate of the parties themselves; or, in other words, to damages to the amount of the value of the land. We are of opinion the latter is the correct view of -the question, on principle and authority. I feel some diffidence in adverting to the case of Rohr v. Kindt, 3 W. & S. 563, inasmuch as it is said to be a dictum, and one of my own. But as subsequent reflection and investigation have convinced me the law is there properly ruled and is supported by other authorities, as I shall subsequently show, I cite the case as a leading authority in this state. With all deference, it is, I think, something more than a dictum; it was intended to furnish the rule for the assessment of damages on another trial. The reversal of the cause made this disposition of the case necessary, and consequently the principles there asserted met the concurrence of the whole court. It is there ruled, that if the consideration of a covenant to convey land be the performance of an act by the vendor, and it is done, the measure of damages for the nonperformance of the vendor is the value of the land. That is the case of a written agreement, this of a parol contract; a difference, however, which docs not in my judgment affect the principle. In the course of the opinion this language is used in illustration of the rule, which, if sound, decides this case. “ But is the value of the land,” says the judge, “ the measure of damages ? and this may depend on circumstances. Thus, if the contract had been performed before the offer to rescind, as, for example, when A., in consideration that B. will perform certain services of an uncertain value, agrees to give him a horse or a tract of land, particularly named and specified, B. performs his part of the contract, and then A. refuses to deliver the horse or convey the land, the measure of the damages is the value of the horse or land, as the case may be, because that is the stipulated reward of the services of B., whatever may be the intrinsic value, whether more or less. It is the contract, and of course binding on both.” This is said to be the dictum of the judge, and of course not binding as an authority. Be it so. Then the question arises, Is the law, as stated, supported by principle and authority ? For if it be, there is an end of this case, for nothing can be more apposite to the point now under discussion. Let it be remembered that the jury have found that the testator, Jack, contracted, in consideration of the services of the plaintiff, to give her a tract of land particularly named and specified. The services to be performed were of uncertain value and of uncertain duration. They continued during the lifetime of Jack, and the consideration was not to be paid until his death. Whether the compensation was adequate or inadequate depended on the contingency of his death. It was necessarily uncertain, as Jack might have lived fifty years, or he might have departed this life within one year. She also might have died before Jack; when, by the terms of the contract, his representatives would have been exonerated from payment altogether. Whether the contract was or was not prudent on either side, does not enter into the question. It was a contract which the parties'were competent to make, and which equally binds both. I understood it to be conceded, that the rule is well stated as to the horse, but denied as to the land. In principle, it is not very obvious what difference it can make, whether the compensation is to be paid in land, or in an article or articles of personal property. It is the value only, in either case, which can be recovered, and one is as easily estimated as the other. In neither is there a transfer of the title. On such a contract the plaintiff cannot recover the horse, although it is granted he may recover his price. And although he cannot recover.the land, why may he not recover its value? The action in both cases is brought to recover the value of the services; and the question is in both, What is the rule in estimating the damages ? The distinction which has been attempted and laboured with great zeal and apparent conviction is, that in the case of real property the contract is within the statute of frauds, and in the other case it is clear of that difficulty. This is a distinction which it will be my duty to examine in another part of this opinion, but before doing so, it will be convenient to inquire how the point stands on authority.

I have already adverted to the case of Rohr v. Kindt, and the dictum, as it is called, of the judge there. Is that case supported by authority ? I will now proceed to show that it is. Thus in Burlingame v. Burlingame, 7 Cow. 92, it is ruled, “ that a parol contract to pay for certain services on their being performed, by conveying a certain piece of land, the services being performed pursuant to the contract, is not void by the statute of frauds, but the value of the services can be recovered according to the value of the land promised, which may be resorted to as a measure of damages, though the contract to convey the land cannot be enforced.” There, as here, the contract was, that in consideration of certain services to be performed, defendant agreed to convey a certain piece of land; there, as here, the suit was brought to recover compensation for the value of the services; there, as here, the statute of frauds was pleaded in bar to the action; and there, as here, the value of the land was claimed as the measure of damages. In no one particular, therefore, can it be distinguished from this case. In principle, and almost in very fact, the cases are identical. This, be it remembered, is a New York case, where, as is understood, a parol contract for the sale of land is void, and no action can be maintained for its breach. Whereas in our state, a suit will lie, as is ruled in George v. Bartoner, 7 W. 530, in accordance (the d’oubts of counsel to the contrary notwithstanding) with the universal understanding of the profession in every part of the state. It is within my experience, and I believe of every member of the court, that such actions have been sustained without objection. That we have but few cases in the books may arise from there being no doubt of the law on this point, and because there are few men who will so far lose sight of every principle of faith and honour as to refuse to comply with, a contract fairly made, because it was by parol. If no cases of tbe kind have occurred in the county of Westmoreland, it is an evidence of the good faith and honour of its citizens, nothing more. But it is said the case of Burlingame v. Burlingame is overruled by King v. Brown, 2 Hill, 485. If it were I should regret it, but it would not change my faith in the correctness of the rule. But this is an entire mistake of counsel. King v. Brown, so far from overruling Burlingame v. Burlingame, in this particular affirms the principle as to the measure of damages. The case decides that when there is a parol contract to convey land, in consideration of a specified sum, payable in work, it is void by the statute of frauds and perjuries, and cannot be the foundation of an action. In such a case the party who has performed the labour may treat the agreement to convey as a nullity, and recover the value of the services under the common counts, not exceeding, however, the amount fixed hy the agreement, with interest, but he cannot resort to evidence of the value of the land as a measure of damages. But if, in a contract of this nature, no amount he specified, and the payment is to be in a designated piece of land, the plaintiff may then prove the worth of the land, with a view of ascertaining the value of the services. The distinction taken is perfectly plain and just. When the amount of the value of the services is specified and ascertained by the parties, that is the measure of damages; but when it is not fixed, the value of the land is the measure of the damages. In this particular it expressly affirms the case of Burlingame v. Burlingame. It is true the latter case is partly overruled, but on this question it remains untouched. The error in Burlingame v. Burlingame was in holding that the plaintiff should have declared on the special agreement, and could not recover on the common counts. The same principle is also ruled in Hopkins v. Lee, 6 Wheat. 118, where it is decided that in an action at law by a vendee against a vendor for a breach of contract in not delivering the thing sold, the proper measure of damages is not the price stipulated in the contract, but-the value at the time of the breach. Mr. Justice Livingston, who delivered the opinion of the court, says, after stating the rule, it» can make no difference in principle whether the contract be for the sale of real or personal property. A view of the authorities, therefore, would seem to show that if any point can be settled, this is. But it is said that the recovery here is in contravention of the statute of frauds, and this is the point on which the defendant’s counsel mainly rely. It will be observed the same objection was made and overruled in Burlingame v. Burlingame, and for reasons which are incontrovertible. “It is contended,” say tbe court, “that tbe statute of frauds is a bar to the action. To this objection it may be answered, the action is to recover for work, labour, and services, not to enforce the contract to convey land. It will readily be admitted that the agreement to convey is within the statute. The question is then presented, whether in any given case when one party has parted with his money or rendered services, and the consideration for so doing is a promise by the other party to convey land, the party who has rendered the services or paid the money is without remedy.” The affirmative of that proposition is too monstrous to be seriously maintained. The statute of frauds only applies to a contract for the sale of land. But was this a contract for the sale of land ? It is a contract for services to be paid in land, but not a contract for the sale of land. If it was a contract for the sale of anything, it was a contract for the sale of her services. This is a proposition so plain that the wonder with me is how any person can be prevailed upon to doubt it. It is in truth a contract of hiring, creating the relation of master and servant, and has no sort of resemblance to a contract of sale. What, then, is the measure of damages ? To this wo answer, the value of the land, because that is carrying out in good faith the contract of the parties. The agreement is to this effect: Jack agrees that for her services he will assure to her at Ms death a certain tract of land, or that he will give her the value thereof. He cannot, it is true, ■be compelled to convey the land, for two reasons: first, because this is not a sale of land; and second, because, if it were, the contract is by parol. But what principle of law or morality is there in refusing her damages commensurate with its value ? The parties have fixed the maximum and minimum compensation, and what tribunal should be permitted to gainsay or frustrate their intention ? Jack knew better than any other human being could know, the real nature and value of the services she was expected to perform; and if she has performed them in good faith, and so the jury have found, why should she not be allowed compensation according to the price estimated by themselves ? The law of the contract is all she asks. It is said the executor cannot convey the land. And this is true; but, under the circumstances of this case, this is a flimsy pretext to avoid compliance with the contract of the testator. It happens, in this case, that William Jack, the brother of the deceased, is the executor and devisee of the land referred to in the agreement. Indeed he is the residuary legatee and devisee of the whole estate. He may convey if he chose, and no doubt she would cheerfully receive a conveyance of the home of her fathers, rather than compensation in money. But be this as it may, the contract was with the testator, who acted in bad faith in refusing to make the necessary provision for assuring to her the title of the property, and, in breach of his agreement, devising it to another. It must be remembered the action is not for the violation of the contract (which it might have been in this state), but it is to recover compensation for the value of her services rendered to Jack in the helplessness of disease and old age. Having shown to my own satisfaction, at least, that this case is not embraced in the statute of frauds, I must be excused from wading in the labyrinth of cases cited, which only apply to contracts of sale. It would swell this opinion beyond all reasonable bounds to notice each case, although they have been examined and carefully noted. I think, however, I hazard but little in saying there would be no difficulty in proving, both on principle and authority, that even granting it to be a sale, the measure of damages would, notwithstanding, be the value of the land, because that would be the only mode to carry out the contract in good faith where the vendor refuses to convey. There is nothing in law or reason to prevent parties from fixing a certain sum for services to be rendered, or agreeing to give for such services, in case the contract is rescinded by the vendor, certain specified articles, either of real or personal property. And when the vendee is compelled to suo for his services, to recover according to the amount of the sum specified or the value of the article agreed to, be given, whether real or personal, or whether the contract be in writing or by parol. In such eases the vendor is guilty of bad faith in refusing to comply with his contract; and as the vendee is compelled to sue for his services, as in the case of the rescisión of the contract, he cannot complain that he is obliged to pay the stipulated price, whether it be money or the value of the article agreed to be given in consideration of services which have been performed.

Judgment affirmed.


text:
    Miller v. McCaffrey.
    A contract in writing contained a stipulation, that the party (defendants) reserved the right of making alterations in the plan of the work during its construction, the expense of which should be agreed on at the time, but no extras should be allowed for, under any pretext whatever: the defendants are not liable for the increased cost of the work, occasioned by alterations made with their assent or approbation, where there was no bargain as to the price, according to the terms of the contract; or unless an express promise to pay the value of such work is proved.
    An agreement with a stranger by a party to a contract, to accept what he should determine as a fair compensation, and a refusal to accept that sum, is no bar to an action on the contract, against the party not bound by such agreement.
    In error from the Common Pleas of Westmoreland.
    The plaintiff declared in assumpsit, on the common counts, against Miller and four others. The evidence was, that the defendants, who were a building committee of a congregation, had entered into a contract, under seal, with the plaintiff, for the erection of a church edifice, according to a designated plan and at a fixed price. The contract contained the following stipulation:—
    “At any time during the progress of the building, the committee reserves the right to direct any alteration or variation from the original plan, so as not to vary therefrom in any very essential manner, so as to cause any material extra expense to the building; but any alteration suggested by them shall be made, and the expense, if any, shall be agreed upon at the time; but no extras shall be allowed, under any pretext whatever.”
    The action was brought for extra work done upon the building. The evidence was, that plaintiff had made various alterations in the plan, by which the cost of the building was increased. The price for one item only of these changes was agreed upon. But the defendants knew of the alterations, and made no objections; and some of them at least approved of the acts of the plaintiff. The building had been delivered to and accepted by the congregation.
    There was also evidence that plaintiff had agreed with a committee of the congregation to accept such a sum as they should name, but afterwards refused to be bound by their determination.
    Burrell,-P. J., instructed the jury: — “ This provision in favour of the defendants was one, however, which they might waive if they saw ¡iroper; and if they directed extra work to be done without previously fixing the price of it, they could not escape responsibility for it, under the clause in the article referred to. And as they could waive that stipulation in part, so they could waive it altogether; and if while extra work was in progress, or after it was done, they agreed and assented to it, and adopted it, although no price was fixed at the time of the assent, they would be liable to the plaintiff for what it was reasonably worth. It is not necessary that the plaintiff shall have shown their assent and adoption of extra work done, in express words. Their assent is a question of fact to be arrived at by the jury from the testimony, and may be as well shown by their acts and conduct as by words. The acts of one of the defendants, in relation to the extra work, would not of course furnish any evidence of assent by the others, nor bind them.”
    And in answer to the point, that an absolute and distinct promise by all the defendants was necessary to entitle plaintiff to recover: “it states the law correctly, and is answered affirmatively; with this modification, however, that the defendants could waive the stipulation in the article of agreement, if they saw fit, and make themselves liable for extra work by assenting to it, and adopting it while in progress, or after it was done, and that their assent and adoption may be shown by their acts and declarations.”
    To the fifth point, that the agreement to accept what should be awarded by the committee barred the action, the court said that it was not binding on defendant for want of mutuality, the plaintiffs not being parties to it nor bound by it. And further, that the acceptance and use of the building by the congregation was no evidence of the assent by defendants to the alterations and changes in the plan.

      Gowan, for plaintiff in error.

      Foster, contó.

      Oct. 16.
   Rogers, J.

(after stating the cause of action and the agreement.) — The committee seem to have been fully aware of the risk to which owners are exposed, of an increased expense under the specious pretence of charges for extra work; and hence this unusually prudent, wise, and cautious provision. It will be remarked, the committee reserve to themselves the power to suggest alterations in the plan. These the contractor is bound to conform to, unless it interferes with the plan in some essential particular, and provided also that there is an expressed agreement as to the price of the proposed alteration. The rights of both parties are therefore particularly guarded. The committee are freed from innovations, without their express consent; the contractor from material alterations, inasmuch as he cannot he compelled to accept the suggestions of the committee, unless consistent with the original plan, and at a fair price to 'be agreed upon at the time. In anticipation, it would be difficult to imagine how any contest could arise between the parties; and that none would have occurred may be confidently asserted, had the plaintiff thought proper to follow the wise and prudent advice of his pastor and friend, who told him if the committee asked him to do anything on his contract, he ought to do it, and that he must take the contract as his guide. Instead of pursuing these sensible suggestions, and in utter disregard of his contract, he evinces displeasure because the committee refused to accede to some of his proposed alterations, and, in the extremity of his wrath, he declared he would not be bothered with them any longer; that he would build the church to please himself, and if he should suffer loss by it, it would be a monument to his children. The witness adds, he did go on and build it to please himself. These are some of the circumstances under which the plaintiff asks additional compensation for extra work, to be paid by the individual members of the committee. In support of such a claim, justice requires there should be full and stringent proof. The action can only be maintained by clear and satisfactory evidence of a new, distinct, and independent contract between the parties, authorizing the alterations in the original plan, and expressly agreeing to pay for them a certain fixed price, or what they may be reasonably worth. Short of full proof of these essential particulars, the action cannot be sustained. It is obvious, that unless these principles are rigidly enforced, it is worse than useless to enter into a special contract,' or attempt to guard against impositions sometimes ruinous to the owner. If the contract is to be thrown open because one of th'e committee approved of a particular alteration — that sometimes all of the committee, at others a less number attended while the work was going on — that in the opinion of the witness, they must have known of the extra work — ■ that they often talked of the extra work, without expressing any displeasure at the alterations — that one of them said, speaking of the door in front, he did not think such an improvement could be made on the same piece of work: if for one or all these particulars, a solemn contract may be set' .aside, then it is a useless piece of folly to put such agreements in writing. We shall never be in want of testimony of the kind above alluded to; and it will follow', that the only possible mode of escaping, for the owner (even if that can protect him), will be to absent himself altogether, while the work is in progress. If the unhappy owner expresses his satisfaction with the building, he is . bound to give an additional compensation; nay, if he does not expressly dissent, he is still in the same category. In truth, he would be an unnatural and illnatured man, who would not express satisfaction when he observes that the builder is more than fulfilling his contract — that he is making a better job of it, in workmanship and plan, than he agreed to do. But does it follow, that when improvements are made without any consultation with the owner, to gratify the taste or the laudable vanity of the contractor, that he shall be compelled to pay the additional expense, if any there be, in direct opposition to the words and spirit of his contract ? The adoption of such a rule would be particularly unjust here; for it is sought in this action to charge the defendants individually, although they have but an interest in common with the plaintiff, as members merely of the same congregation. It is a remarkable fact, which shows the danger to which persons in the situation of the defendants are exposed, that the defendants have been charged with upwards of $1,300 beyond their contract for extra work (with a single exception of an item costing $25), without a particle of proof that they either authorized the alterations, knew of the increased expense, or promised to pay for them. In the charge of the court, and the answer to the points, there is a pervading error. The court appear to,have thought, and so the jury must have understood them (for there is no accounting for the verdict on any other principle), that because the defendants stood by, saw the alterations in the plan without objection, and accepted the work, that therefore there was full proof of the agreement. This was a mistaken and mischievous view of the case. [His honour here stated the charge of the court in regard to the extra work.] From the obvious sense of this language, as applied to the evidence, we must enter our dissent. The jury must have understood the court as instructing them, that standing by, seeing the work going on, adopting it after it was finished by accepting- the work, was full evidence of an agreement binding on the defendants.” But this we deny, unless there was superadded evidence of an express promise to pay either a certain sum or what the additional work was reasonably worth. If the court had explained what was meant by assenting to and adopting the work, in all probability we should have been saved all difficulty by a verdict for the defendants. If, however, the court intended to say — and this is the obvious construction of the language used — that if the defendants were satisfied, did not forbid the plaintiff making the alterations or improvements, and afterwards adopted it by accepting it, this constituted an agreement binding on the defendants, it is an error which this court is bound to correct. It is an elementary principle, that a workman employed to do a job, who adds extra work without consulting his employer, cannot charge for it: Hart v. Norton, 1 McCord, 22. So in Wilmot v. Smith, 3 C. & P. 453, the plaintiff agreed to construct a printing-press, with a cast-iron bottom, for the defendant, for 41.10s., and he furnished him one with a wrought-iron bottom, and sued for 51. 5s., it was held he could recover but 41.10s., although the press was better, and the defendant did not object to it or offer to return it. This is a case very like the present, and rules it.

The court is further of the opinion, that in other respects the charge is correct, and that there is no error in giving a negative answer to the defendants’ fifth point. We adopt the answer and the reasons given by the judge.

In conclusion, I will venture to suggest that the plaintiff was badly advised in rejecting the peace-offering of the congregation, which we sincerely hope may be renewed and accepted. A claim to a reasonable compensation for a building, which does credit to the taste of the congregation as well as the contractor, addresses itself to their sense of justice and liberality. All the witnesses concur that the -work has been finished in a masterly manner, and that it is an ornament to the borough in which it is situated.

Judgment reversed, and a venire de novo awarded.


author: Bell, J.

text:
    Keenan v. Gibson.
    Whore judgment was recovered against executors prior to the act of 1834, and revived by sci. fa. against the executors only, after that act, and within five years, the lands of devisees are discharged from the lien.
    In error from the Common Pleas .of Westmoreland.
    Case stated. West, having devised his lands, died on the 1st June, 1828. In 1833, Keenan obtained a judgment against his executors. In 1838, this was revived against the executors by seire facias. In 1843, a scire facias to revive issued against his executors and devisees. Whether the lands devised were liable, was the question. The court thought they were, and gave judgment accordingly.

      Foster, for plaintiff in error.

      Gowan, contó.

      Oct. 16.
   Bell, J.

This case is not to be distinguished from Benner v. Phillips, 9 W. & S. 13, save in some immaterial particulars. In both instances the debtor died before the act of February, 1834, and the lien of his debts on Ms real estate was consequently continued, under the act of 1797, for seven years. In both cases, too, suit was brought within that period, and judgment recovered against the personal representatives of the deceased. In the first of them, the question directly arose, whether there was any limitation of the lien of this judgment as against heirs or devisees, holding the land left by the decedent ? Under the authority of Murphy’s Appeal, 8 W. & S. 168, since recognised in Atherton v. Atherton, 2 Barr, 112, it was conceded to be unnecessary to make the tenants of the realty parties to the original action. But by analogy to the 24th section of the act of 1834, it was expressly ruled, that to continue the lien of the judgment it was essentially necessary the owners of the land should be brought upon the record by scire facias, within five years after the original recovery. It is not worth while to repeat the reasoning upon which that decision proceeds. It is sufficient, for present purposes, to say that it is in accordance with previous legislation and judicial interpretation, and must be taken as furnishing the rule of action in similar eases. But it is said the present differs from that case, in the fact that here the original suit was brought before the enactment of 1834, and therefore before any legal necessity existed for bringing in the term tenants. Were objection to the first action made on this score, that fact would be a sufficient answer to it. But, as matters stand, it is difficult to perceive why this should work a difference of result, since the first scire facias was sued out nearly four years after the statute went into operation, and certainly the same reasons existed for making the devisees parties to it, as were found potent enough to influence the determination in Benner v. Phillips. These were based on considerations of policy so stringent as to induce the court to borrow a provision from a section relating to a kindred subject, in order to restrain the mischief of unlimited lien by judgment — a mischief abhorrent to our system. Here the owners of the land were not called on till after the lapse of fifteen years from the death of the testator, and about nine and a half years after the rendition of the first judgment. These are periods of unreasonable duration, according to the authorities. Long before the running of so much time, the devisees were entitled to know whether the creditor intended to look to their lands for payment; and the neglect to assert such an intent within the reasonable time fixed, destroyed the lien. Were it even admitted, upon the rule settled in Duncan v. Clark, 7 W. 217, and the other like cases cited for the plaintiff in error, that the recovery of the -first judgment prolonged the lien for twelve years after the death of the testator, or up to 1840, for every purpose of notice to the devisees, it would help this plaintiff nothing, for he gave no notice to them till after that period had passed.

It is further urged that as the first proceeding, in this instance, was instituted prior to the act of 1834, the case is not within the operation of the statute, by virtue of its 70th section. The language of that section is: “ This act shall take effect from and after the 1st day of October next, and all such acts of Assembly as are hereby altered o'r supplied, shall be and are hereby repealed, except so far as may be necessary to finish proceedings commenced, or to settle the estates of persons who may have died before that time.” But it is obvious the latter clause of this provision relates altogether to pending proceedings for the settlement of estates of deceased persons commenced under prior enactments, and which could not be brought to a close without reference to the then existing laws. Admitting the repealing clause and its exception to have reference to suits at law brought by creditors, the suit instituted here against the executors was finished by the recovery of a judgment, long before the latter statute went into effect. There was nothing to continue of the first proceeding, and if there had been it was not necessary to conduct it under the old enactments. The process subsequently issued was the commencement of a new proceeding, that fell directly within the provision of the new law. The supposititious case put by the counsel of the plaintiff in error, of a first judgment recovered, ten, fifteen, or twenty years before the act of 1834, and several intervening revivals of it, by scire facias, before that time, would certainly present an exception to the literal application of the rule in Benner v. Phillips, for the plain reason that it would be impossible. But even there, I take it, that to render efficacious the lien against the land, the first scire facias issued after the act took effect, must be directed against the terre tenants as well as against the executors.

This adherence to the practice sanctioned by the cases referred to, may operate harshly in the case on hand. But it is better so, than that we should have no settled rule on the subject.

The judgment rendered against the terre tenants is reversed, and procedendo awarded.


author: Burnside, J.

text:
    St. Clair v. Shale.
    Declarations by a party in possession by virtue of -which title is claimed under the statute of limitations, are evidence to show that the possession was not held adversely.
    In error from the Common Pleas of Westmoreland.
    Ejectment. In 1795 Bayard entered on the land in question, and died in 1805. The title to the land was in his brother-in-law, St. Clair. His widow continued his possession, and the question was, whether her declaration that St. Clair had given the land to herself and husband for life was evidence to rebut the presumption of an hostile possession. The court said it was, and this was assigned for error.

      Foster, for plaintiff in error.

      Williams, contrd.

      Oct. 24.
   Burnside, J.

The error assigned is in admitting the copy of the record in the case of the lessee of Arthur St. Clair and Timothy Turnout, lessee in possession No. 131, April Term, 1774, Westmoreland Common Pleas, ejectment for three hundred acres, the same as claimed by Muchman (being the name of the location and survey). July, 1779, judgment; fieri facias issued Oct. 7,1779. Sept. 12,1779, executed, and possession given to the plaintiff. It was clearly evidence. There was no execution-docket for that period in the office; no papers to be found. Hammackstown, where the courts were held until 1781, had been burned by the Indians — a calamity remembered but by few now living. The county town of Westmoreland was not settled at Greensburgh until 1786. 2d. The error strenuously urged was the statute of limitations, and the declarations of Mrs. Bayard after the death of her husband, how she and her husband obtained the possession, and how they held the premises. I freely confess, that on the argument of the case, I was inclined to think her statements were not evidence; but the arguments of my brethren have removed my difficulties. It is in evidence, that Capt. Bayard entered on the land in 1795. He died in 1807, off the land. His house had been burned, and he was moved off with his family. Shortly after he died, and the neighbours built Mrs. Bayard a house, and she returned to the premises, where she remained until her death, in 1816 or 1817. They had a tenant residing on the land near their dwelling, who farmed the place. They had no children. Capt. Bayard was a brother of Mrs. Arthur St. Clair. There is not a sparlc of evidence in the case, during the life of Capt. Bayard, showing how he entered or claimed the premises. But after the death of her husband, Mrs. Bayard told Morris that Gen. St. Clair had given it to her and her husband during their natural life. The judgment of Gen. O’Hara against Gen. St. Clair, was in evidence, and the sale to Gen. O’Hara in 1810. The evidence of William Johnston proves that he stopped at Gray’s house, who was a tenant under Mrs. Bayard in 1817; while there he made inquiries whose land it was, and Gray said it belonged to Gen. O’Hara, said he had lived on it for some time, and after that leased from Louisa Robb. He afterwards promised to take care of it for Hamilton, who was the agent of Gen. O’ Hara. ' In 1811 he had stopped at Mrs. Bayard’s, with Hamilton and Montgomery. Mr. Hamilton introduced him to the old lady. He asked her if she knew it was sold, and told her he was an agent of Gen. O’Hara’s. She said she understood so ; that Gen. St. Glair had put her there, and Gen. O’Sara would not put her out. Mrs. Bayard died on the land about the time she had been twenty-one years in possession. In a short time after her death, Gen. O’Hara’s agent obtained the possession. A possession to be protected by the statute must' be adverse; whore it is obtained under or by consent of the plaintiff, the statute will not protect him: Jones v. Porter, 3 Penn. Rep. 132; Alternas v. Campbell, 9 Watts, 28. So an adverse possession must continue the prescribed period of twenty-one years to make it a bar: Journal of Jurisprudence, 256.

There is no evidence in the case how Capt. Bayard claimed; none that he claimed adverse to Gen. St. Clair; and long before the statute had taken effect, Mrs. Bayard, whose adverse possession was essential to give the plaintiffs any title, disclaimed such an entry and possession to the agents of Gen. O’Hara.

Judgment affirmed.


author: Gibson, C. J.

text:
    Graham v. Graham.
    Notice by a party to an arbitration tliat lie will not attend at the hearing by the ■umpire is a waiver of a right to notice of the time and place of hearing: aliter, of a mere expression of intention not to attend.
    An umpire is not bound to examine witnesses unless requested.
    If one only of the parties attend, and furnishes books and answers questions when requested, the award is not vitiated.
    Where there was a submission by deed of all difficulties arising out of a partnership, it seems the arbitrators may include payments made by one of the parties on account of the joint liabilities after the date of the submission. But where it was agreed by parol, pending the submission, that such party should take the books and- pay the debts of the firm, he is entitled to credits therefor: this being an implied extension of the terms of the submission.
    Parties cannot object to the examination of the arbitrators in an action on the award.
    In error from the Common Pleas of Westmoreland.
    Debt on an award. The submission, which was by deed, recited that controversies had arisen between Richard and Robert Graham, in reference to their partnership dealings and accounts, and also in regard to their other business and dealings; and being desirous finally to end and determine all their disputes, difficulties, and controversies, they had agreed to refer all their said disputes, controversies, and difficulties to the award of J. M. and I. N., with the privilege to the referees of selecting an umpire, &c. The appointment of an umpire and his award were shown to be regular in point of form. The defendant proved by the umpire (under exception), that he had not given notice to the parties. The plaintiff attended, and furnished books and information when requested. The defendant never attended. The matters were explained to the umpire, by the referees; and after examining the books, &c., an account was stated, and plaintiff was credited for payments made up to the date of the award. The referees proved, that at their first meeting, it was jiroposed that one of the parties should take the books of the uncollected debts of the firm; and defendant refusing to do this, it was agreed plaintiff should do so. It was then stated that certain creditors of the firm were pressing their claims; and it was agreed by the parties by parol, that plaintiff should take the books, collect the debts, and pay the claims as soon as possible.
    The plaintiff then proved by one of the referees, that after the umpire was appointed, defendant told him he had been advised not to attend, and he would not appear. Defendant handed him a paper, containing explanations, which he requested should be laid before the umpire. There were no witnesses examined by the umpire; but explanations were made to him by the referees, from which and the books he made his award.

      Knox, P. J., instructed the jury, that defendant had waived his right to a notification of the intended hearing by the umpire, but it was his duty to examine the witnesses; that he had no right to take into consideration matters occurring since the submission; and these matters vitiated the award, and might be proved in this action for want of a court of equity.

      jKuhns and Foster, for plaintiff in error.

      Oowan and T. Williams, contó.

      Nov. 20.
   Gibson, C. J.

The common-law award on which this action is brought, was impugned at the trial for want of notice to Richard, the defendant, of the time and place of hearing; for want of examination of the witnesses by the umpire; and for want of conformity to the submission. In regard to the first, the evidence was, that formal notice of the time and place of hearing by the umpire had not been given; but that Richard being told of the umpirage by one of the arbitrators, declared that, acting by the advice, of his counsel, he would not appear; in earnest of which he handed a paper to the arbitrator, with instruction to lay it before the umpire, in order fo bring into his view certain accounts which he feared might be overlooked. Notice may be waived in advance by a communication addressed to the person who would be bound to give it, and had there been merely a declaration of intention, in this instance, without the message which accompanied it, there would perhaps have been no waiver. It is true that arbitrators are not funeti officio by the appointment of an umpire; for they may still go on and award; and where they do not, it is their business to give information and assistance to the umpire, at least they may do so. But though it was their province to give notice to the parties of their own meetings in the first instance, and of the appointment of the umpire in the second, it became his province, having the duties to perform which had before rested on them, to appoint the time and place of his sitting, and to warn the person concerned: Kyd on Awards, 59. But as a party may beforehand signify his determination not to appear, and thus dispense with notice of the time and place, he may do it in person, or by an agent authorized to communicate it. In this instance there was more than an expression of inténtion. It was accompanied by a paper to be laid before the umpire and used in the party’s defence, and the declaration of his intention thus assumed the character of a communication, as it would have done had it been confided to a stranger. Besides, without an appearance, a party is not entitled to the benefit of matter of defence, or, having given it, to treat the proceeding as ex parte. After that it would be idle to trouble him with notice.

The next point is unattended with difficulty. Before an umpire has made his award, he is bound to examine the witnesses if a party require it; but not without request, or afterwards. In Hall v. Lawrence, 4 T. Rep. 589, the arbitrators had regularly heard the evidence, and disagreeing, had stated it to an umpire named in the submission, who made his umpirage without a fresh examination of the witnesses, subsequently to which, the losing party requested him to hear the witnesses himself, and on his refusing to do so, moved the court to set the umjDirage aside ; but the rule to show cause was discharged with costs. To the same effect is Tunno v. Bird, 2 Nev. & Mann, 328; S. C. 5 Barn. & Ad. 488. Now though the umpire, in the present case, did not examine the witnesses, no one requested him to do so. He examined the testimony taken by the arbitrators, who laid the whole of it before him, making explanations without stating their points of difference. As the hearing was in some sort ex parte as to Richard, Robert furnished the books called for, pointed out nothing, and merely answered questions. There certainly was no misbehaviour in that.

But the umpire debited Robert with receipts, and credited him with payments to the time of the award; whence an argument that he went beyond the submission, which extended no further than “ disputes, difficulties, and controversies,” existing at the time of it. These matters, however, if not within the letter, were within the spirit of it; for it would have been impossible to settle these disputes, difficulties, and controversies, growing as they did out of “their partnership dealings accounts,” as they called them in the submission, without disposing of them. It is certain that an award of disputes, arising after the submission, is void — at least for the excess — for which we have the authority of Barnardiston v. Foulyer, 10 Mod. 204, decided on the authority of 1 Roll. Abr. 145, pi. 8. But these debits and credits were, in truth, not subjects of dispute. It was formerly held, that to award a release of actions to the time of the award, was bad; but that the law is held differently now, is shown by Squire v. Grevell, 6 Mod. 34; Abrahat v. Brandon, 10 Mod. 200; Hooper v. Pierce, 12 Mod. 116; and Perry v. Nicholson, 1 Bur. 278. And the reason given for it is, that it shall not be intended before it is shown that a release of actions subsequent to the submission was meant. It was not shown here, nor could it be, that the receipts and payments did not grow out of matters within the submission. It was found, while the cause was before the arbitrators, that the partnership debts were pressing the firm, and that it was necessary to collect ,the debts due to it to meet them; to effect which, the parties agreed that Robert should take the books, collect, and pay out — in short, . become the liquidating partner — and this was virtually an agreement that the subsequent debts and credits should come into the ' award. A submission by specialty, may be altered by parol; and whether altered or not, it is to be construed largely. It might well be doubted whether this umpirage would not be good without an alteration; but the subsequent agreement clearly gave power to wind up the concern, and settle all the partnership accounts, and consequently to include receipts and payments, whether subsequent or prior to the submission.

The objection to the competency of the arbitrators and umpire as witnesses, is unfounded. It is well settled that an arbitrator may prove facts that came under his notice in the progress of the hearing, the only question being, whether he is bound to testify. On the authority of a note of Sir James Mansfield’s decision at nisi prius, in Ellis v. Saltau, Lord Tenterden seems to have conceded in Johnson v. Durant, 4 C. & P. 327, that he is not; but no satisfactory reason appears to have been given for it. Sir James told the witness he need not be examined unless he chose it, thinking that an arbitrator was not to be afterwards worried as a witness. But if unwilling to take the chance of it, ought he not to decline the office in the first instance, rather than acquire important information by means of it, and withhold it to the injury —perhaps the ruin — of an innocent man ? Every man’s convenience must give place to the necessities of distributive justice. But notwithstanding these nisi prim decisions, the point is still unsettled; and as it does not arise in the case before us, we say no more than that, as the witnesses themselves did not refuse to be sworn, no one else could object to it.

‘Judgment reversed, and a venire de novo awarded.


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    HAZLEBACKER v. REEVES.
    An acknowledgment of a debt within the six years takes the case out of the statute of limitations.
    In error from the Common Pleas of "Westmoreland.
    Assumpsit. Plea, the statute of limitations. The plaintiff gave evidence of the acknowledgment of the debt by defendant within six years after it accrued. The court said this did not take the case out of the statute.

      Kuhns, for plaintiff in error.

      Oowan, contrA

      Oct. 16.
   Coulter, J.

The case of Morgan v. Walton, 4 Barr, 321, was decided mainly on the ground that the evidence of the acknowledgment and promise was vague, shadowy, and uncertain, and because it was altogether in doubt, from the evidence, whether the intestate intended to refer to that part of the account then due and legally recoverable, or to that part which was barred by the statute, or to the whole account taken together. And that, therefore, it was rendered insufficient by the case of Gilkyson v. Larue, 6 W. & S. 213, which ruled that the acknowledgment of a debt is evidence of a promise, but that it ought to be plain, unambiguous, express, and so distinct and palpable in its extent and force as to preclude hesitation. In relation to that part of the account which was not barred by the statute at the time of the alleged promise or acknowledgment, the judge who delivered the opinion stated, as ancillary to the main view of the case, that a promise made within the six years is a nudum pactum, without consideration, and cannot establish a new contract, and thus create a new era from which the statute will run, as the original cause of action itself is still in full legal vitality. This dictum expressly refers to the case of Case v. Cushman, 1 Barr, 246, then recently reported, as the authority on which it was predicated. In that case the late learned judge who delivered the opinion thus declares the law: “ The debt was not barred at the time the new promise is alleged to have been made, the plaintiff was still and at that time under a legal obligation to pay it; and without some consideration being given for it, which is not pretended in this case, it was at most but a mere nudum pactum, and no cause of action could arise or accrue from it. The only cause of action which existed, therefore, and had accrued or could accrue in regard to the debt in question, was founded upon tbe original promise to pay it, and accrued on tbe 14th November, 1830, against which the statute of limitations commenced running, at the latest, as early as the 28th July, 1831, when the plaintiff Was in New York, and bought goods of Gascoignes, when they might have sued him. If a debt be barred by the statute of limitations, or the debtor be discharged from it by a proceeding in bankruptcy, a new promise made afterwards by him to pay it has been considered binding, on the ground that he was still under a moral obligation to pay it, though discharged from all legal obligation ; and being under a moral obligation, that formed a sufficient consideration in law to make the now promise binding. But as long as the original legal obligation to pay is in force, this principle will not apply.” This language seems to be unambiguous and direct, and full up to the point. And although there may be some idiosyn-. crasy in the case which makes it peculiar and alone, that does not seem to have been present to the mind of the judge who delivered the opinion. It was doubtless understood by the profession as establishing a general rule. The point was again mooted in this court in Farley v. Kustenbader, 3 Barr, 418, in which Case v. Cushman was cited as authority. The court, however, ruled the cause on the ground that the alleged acknowledgment was not clear, distinct, and unequivocal, and said that it was not necessary to examine the other point, to wit, whether a promise made within the six years was sufficient to take the case out of the statute or not — no disapprobation of Case v. Cushman is there expressed. But it would seem that the court — as no opinion was expressed, but declined — was not unanimous. This case was not reported, however, when Morgan v. Walton was decided, and as it was ruled before I came on the bench, it was of course unknown to me. But the subject was considered in Forney v. Benedict, 5 Barr, 225, when Case v. Cushman, although not overruled, is shaken to its very foundation. The principle is established that the promise within six years has a sufficient consideration, because it may throw the plaintiff off his guard, and induce him to wait beyond the six years. The current of authority and the sense of the profession are strong against Case v. Cushman, as a general rule. It is left, therefore, as disposed of by Forney v. Benedict, 5 Barr, 225, and is accordingly overruled as it regards a promise within six years, and with it falls the dictum in Morgan v. Walton, expressly founded upon it, and on which the court below ruled the cause on hand. But in order to preserve as much of the statute as remains, the rule in Gilkyson v. Larue, reiterated in Morgan v. Walton, is inveterate. On another trial the plaintiff may perhaps bring himself within that rule.

Judgment reversed, and a venire de novo awarded.


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    Bash v. Bash.
    To entitle a son to recover for the breach of a contract by the father that if the son wolcl continue to live with, and work for him, he would leave Mm his farm, the evidence of the contract must be direct and positive; and it is error to instruct the jury that instead of that it is sufficient if it is clear and satisfactory.
    Where the only evidence of an express contract was that the father had on one occasion told the son “not to be discouraged, you shall be paid for all your hard work: X will leave you this place,” and there was evidence of subsequent declarations by the father that he had made a contract with Ms son to leave him the farm, and that he would leave him the farm, and the son continued to live with, and work for him : this is not such evidence of a contract to devise, as will entitle the son to recover for a breach. — Per Gibson, O. X, and Rogers, X
    The value of the land agreed to be given is the measure of damages for the breach of such an agreement.
    Withdrawing objections made to a partition on the allegation of ownership of the land, and receiving a shai’e of that and of the personal estate, will not debar the son from suing on Ms contract express or implied.
    Want of evidence of the value of services does not preclude a recovery on a quantum meruit, for the plaintiff is entitled to at least nominal damages.
    The statute of limitations does not begin to run against an agreement to devise, until the death of the promisor.
    In error from tke Common Pleas of Westmoreland.
    The plaintiff in this action declared specially on a contract with his father, the defendant’s intestate, whereby he agreed, in 1823, that if the plaintiff would continue to live with him, work on his farm, make improvements, &c., he would leave plaintiff the farm, stock, grain, &c. The common counts were added.
    The main questions were, whether the evidence was such "as authorized the charge of the court on the subject of the contract; and whether the charge was correct as to the nature of the evidence required to prove the contract.
    A witness for the plaintiff proved, that when they were at work on the farm, in 1821, plaintiff said, “We have more hard work than we are able to get through with.” His father replied, “ Don’t be discouraged; you shall be paid for all the hard work .you do for me; I will leave you this place; I hope you will live to see the day you will enjoy it.” A number of witnesses proved declarations by the father, at various times, in the absence of plaintiff, that he would leave him his farm. Some of them proved his declarations that he had given plaintiff the farm, except a small portion that was to be his at his father’s death; and others, that he had given him the whole. . One proved that he had said, “I have made a contract with (plaintiff) which shall stand till death takes place between me and (plaintiff). After my death, he shall have all what I own, if (plaintiff) lives longer than I live.” There was evidence the plaintiff had continued to live with his father and work for him until his death.
    The real estate was valued at '$3,687, and the personal estate at $3,521. After the death of the father, proceedings in partition were instituted by his children, which were resisted by plaintiff claiming to be the owner of the land. An issue was directed to try this right, but it was withdrawn by consent, and the proceedings confirmed, and one share allotted to and accepted by the plaintiff, who also received portions of the personalty.
    The answers of the court (Knox, P. J.), which were to the points assigned for error, were: — 2d. To entitle plaintiff to recover on such a contract with his father as was specially laid, would require stronger and more distinct proof than in the case of a stranger. Answer: — “We cannot say the evidence must be stronger and more distinct to establish a contract between a father and son, than between strangersthough there may be circumstances, such as possession of the land, which would, tend to establish it in one case, and not in the other.
    5th. That if the plaintiff had succeeded in making out such a contract as a court of equity would enforce, his withdrawal of the feigned issue and acquiescence in the partition and distribution of the personalty would not amount to a waiver of his rights, nor estop him from a recovery for a breach.
    6th, 8th, 11th. If the special count was not proved, there could be no recovery on the common counts, because there was no evidence of the value of the services, and the law did not imply a contract in such case; and if plaintiff relied on the common counts, they -were barred by the statute of limitations. Answer: — He could recover the value of his labour, if induced to remain and work for the father, under a promise to be compensated in his will, which was not complied with.
    7th. If the son relied on the bounty of his father, and there was no direct or positive evidence of a contract on which the services were rendered, he could not recover. Answer.: — This is correct, substituting the words “ clear and satisfactory” for “ direct and positive.”
    10th. That the measure of damages was the injury sustained,not the value of the land. Answer: — The measure would be the value of the land, if the contract was thus proved.

      Oowan and T. Williams, for plaintiff in error.

      Foster, contó.

      Nov. 10.
   Gibson, C. J.

A majority of us concur that there is error in the instruction on the defendant’s second and seventh points. It is settled by the decisions quoted, that a contract for testamentary compensation of work done for a father by a son after his majority, can be proved only by direct and positive evidence of it; yet for “direct and positive,” the judge substituted in his charge, “ clear and satisfactory,” and thus put such a contract, as to proof of it, on the footing of a contract between strangers unaffected by any personal relation. The course of this court has been to hold a tight rein over it by making the quality, if not the sum of the proof, a subject of inspection and governance by the court, and by holding juries strictly to the rule prescribed, instead of suffering them to be led away by considerations of hardship or paternal injustice. Every sane man must be allowed to make his own contract as well as his own will,' and to prevent jurors from making it for him according to their peculiar notions of fitness and propriety, we have held that the evidence of a contract to compensate the services of a child, must be positive and direct. But evidence, clear and satisfactory in the estimation of a jury, may be neither. It may be no more than presumptive and inferential; and if that were sufficient, it would be easy to see how every case of the sort would go. To an unpractised eye, loose and inconsiderate expressions, such as make up the mass of the evidence in this case, and presumptions or probabilities resting on circumstances, may seem perfectly clear and satisfactory; but they constitute not the proofs by which such a contract is to be established in conformity to the judgments of this court. In the case before us, there was scarce a particle of any other evidence, and the relaxation of the rule by the judge, had an immediate tendency to give the conversations of the father with strangers a controlling influence. Bair, the only witness who spoke of any communication between the parties, face to face, or apart, testified that the father told Henry, who was complaining of the hardness of the work, not to be discouraged, but to stay with him, for he should be paid for all his hard work — that he would leave' him the farm. No other witness spoke of having been present at the making of a contract between them; nor did any one else speak of a contract at all, except Auckerman, who testified that the father had said to him in the absence of the son, “ I have made a contract with Henry, after my death he shall have all that I own, if Henry lives longer than I live.” If the case stood on this declaration alone, it would scarce be held a legal foundation for a recovery; for what the father supposed to be a contract, may have.been a naked promise without condition or terms, and without these, the evidence of a contract imposing a legal obligation, would be neither positive nor direct. The question of proof must therefore depend on the testimony of Bair, corroborated by this and other parts of the evidence; and it .is proper to say that neither to my brother Rogers, nor to myself, does it appear sufficient to support the action, for though he spoke of terms and conditions, the promise seems to have been so commonplace, so like a transient and casual expression of present intention, and so unlike a deliberate and direct proposal to incur an obligation, as to be without the solemnity of a contract, or any one quality of the aggregatio mentium which is necessary to constitute one. It does not appear that Henry assented to the proposal, or remained with his father on the. foot of it. But as we happen to stand equally divided as to that ,I intimate no opinion of the court in respect to it. The other witnesses spoke of loose and indeterminate declarations of the father, that he had given Henry .the place, that he should have all he possessed; and more of the sort, which, though competent for the purpose of corroborating the direct evidence, was barely so, and worthless for everything else. But leaving the father’s promise to the jury on the testimony of Bair, thus corroborated, the plaintiff’s case ought not to have been assisted by a direction that the proof of it need not be positive and direct.

The decision on the other points is free from error. At the death of the father intestate, the plaintiff resisted a petition for partition in the Orphans’ Court, insisting that he was entitled to have the land; and for that purpose, procured a collateral issue to try whether the father had died seised, which he withdrew, and took a child’s share, under the partition: and a prayer for instruction that he was estopped by these facts from recovering at law, made the defendants’ fifth point. But he might go either for the land or for a breach of the contract; and the inception of a remedy for the former would not preclude him, having found that he could not maintain it, from resorting to a remedy for the latter. No case shows that a mistake in choosing the forum or the form of the proceeding, can prejudice the party in any other proceeding. Persistance in opposition to the partition, would have been inconsistent with an action for a breach of the contract; but confirmation of it was directly the reverse. The plaintiff took no more by his acceptance of a child’s share, than what he was entitled to at all events; and whether he took it as a child or as the equitable owner of the whole, cannot prejudice his right. Had the issue been tried and found against him, as it must have been by force of the statute of frauds, the consequences would have been the same; for nothing is more usual than to dismiss a bill for specific relief, expressly leaving the complainant to his action at law; and the abandonment of a proceeding in the Orphans’ Court, in the nature of a bill for an injunction, can have no greater effect. No more can be said than that, assuming the value of the land to be the standard of the damages, what he received by the partition ought to be deducted; for it would be unjust to give him the whole and a child’s share in addition'to it.

The defendant’s sixth, eighth, and eleventh points seem to have been answered in their favour, so far as they ought not to have been answered against them. They prayed instruction, in the first place, that “ if the plaintiff failed to maintain his several counts, upon a special contract with the intestate, he cannot, under the circumstances proved, recover on the indebitatus for work or labour, either on an express or implied contract on the part of the father to pay him a reasonable compensation therefor, during the period when he resided with him; the law implying no contract, and no evidence being given to show the extent, duration, or value of the services.” True, the law implies no promise in favour of a son who continues to serve his father, in order to support a general count; but it is certain that such a count may be supported by an express promise to pay, according to the value, without any express assessment of it beforehand. The quantum meruit is determinable in the case of a son, as it is determinable in the case of a stranger. The contract is not incomplete for want of such assessment; and if the plaintiff did not show the extent, duration, and value, by proof, the defect went, not to the action, but to the amount to

be recovered; for if tlie contract were broken at all, he would bo entitled to at least nominal damages. The judge assumed that there was evidence to show that Henry had remained with, and laboured for his father; so that, if there was to be no stipulated reward, it was to be the value of a labouring hand, which the jury could estimate. But if the promise was to give the land by will, the value of it at the time of the death would be the proper measure; as was held at this term, in Jack’s Executors v. McKee. Subject to the law of the second and seventh points, therefore, the judge w’as right in charging that “ if the plaintiff had been induced to remain at home, labouring on the farm, by request of his father, and on his express promise to pay the plaintiff for all the work he should do by a provision in his will, there might be a recovery for the services,” not including those rendered in making improvements for his own convenience, or without the father’s particular request. He was right, also, in charging, that as a right of action accrued only at the death of the father, the statute of limitations began to run from that time.

Judgment reversed, and a venire de novo awarded.