author: Gibson, C. J.

text:
    Fisher v. Milliken.
    The lessees of a mine covenanted to pay forty cents a load for the ore taken, but were at liberty to substitute an annual sum at their election, to be made at the end of the first year, but in case they did not so elect, they covenanted to take out annually, and pay for eight hundred loads. No substitution was in fact made: Hold, that their covenant to take, and pay for the said number of loads, and at the price agreed upon, became positive, absolute, and indefeasible.
    Where the lessees of a mine sold to another, who entered on the mine, and agreed with the lessor to modify some of the terms of the lease, as where the lessor was bound to pay an annuity of one hundred dollars to the person from whom he bought the mine, the payment of which had been assumed by the lessees, but which, by the agreement between the lessor and assignee of the lease, had been assumed by the latter, who was to be at liberty to take four hundred loads, at the rate of twenty-four cents each, to meet this charge, and at the same rate for whatever else should be taken by him, but in every other point and particular, the covenants and stipulations in the lease were to remain intact: This change in the contract, with which the lessees had no concern, and which did not prejudice them, could not release them from their covenant to take out annually eight hundred loads of ore, and to pay forty cents a load for it.
    The relation of landlord and tenant, as to a covenant for payment of rent, can be dissolved only by an agreement between themselves, which equity would enforce.
    Nothing but a surrender, a release, or an eviction, can, in whole or in part, absolve the tenant from the obligation of his covenant with his landlord: per Gibson, C. J.
    The assignee of the lessees of a mine, who had paid for as many loads of ore as he was bound to pay for by the contract of assignment, and who does not appear to be responsible to any one; not to the landlord, because he had performed his agreement with him, and not to the lessees, because he was bound to perform no covenant but his own: is disinterested, and a competent witness.
    In error from tire Court of Common Pleas of Mifflin county.

      May 18. Isaac Fisher brought an action of debt against Joseph Milliken and George McCulloch, who survived William Mitchell, upon an article of agreement, or sealed instrument of writing, dated 17th of September, 1829.
    It appeared that Isaac Fisher, the plaintiff, held the sole and exclusive right for ever, in a tract of five hundred acres of land, situated in Oliver township, Mifflin county, and near to Waynesburg; of mining in and taking away all the iron ore to be found in the said tract of land, in carts, wagons, &e., with the further right of cutting timber on the said tract of land, for the purposes of working the mines in the most effectual manner. No question arose as to the title of Isaac Fisher, the plaintiff, to the land, or as to his right of mining it, or assigning his right to others.
    On the trial in the court below, before Burnside, P. J., the article of agreement or sealed instrument of writing upon which this action was brought, was given in evidence. This article of agreement, dated the 17th of September, 1829, was between Isaac Fisher and Joseph Milliken, George McCulloch and William Mitchell, since deceased, and executed and delivered by said parties. The material parts of the article were the following:—

      “ That the said Milliken, McCulloch, and Mitchell being the owners of Hope Furnace, with the appurtenances, in Derry and Wayne townships, and Fisher being the owner of a mine or bank of iron ore, near Waynesburg, which ho purchased from Benjamin Walters, by deed bearing date the 25th day of September, 1827, conveying to Fisher all the ore in a certain tract of land therein described, containing five hundred acres more or less; and which said Walters formerly purchased from Thomas Burnside, Esq., adjoining lands of Samuel Holliday, George Galbreath’s heirs, and others. For the consideration hereinafter contained, Fisher grants to the said Milliken, McCulloch, and Mitchell, and to their heirs and assigns, the right and privilege, from this date for ever, to enter in, over, and upon the said tract of land and every part thereof, and to dig’ in, open, and mine on any part of said tract of land, haul, take, and carry away therefrom so much of the iron ore therein to be found, as may be sufficient to supply the said Hope Furnace, or any other furnace which they, the said Milliken, Mitchell, and McCulloch may at any time build and erect on Strodo’s Run, north of the Lewistown and Huntingdon Turnpike; but no more ore is to be taken than will be sufficient for one furnace, and that furnace to be located on the run aforesaid, north of the said turnpike. It is understood and agreed, that on the 1st of June, 1831, or at any time before that, the said Milliken, McCulloch, and Mitchell, their heirs or assigns, may and are to have the privilege of laying off by lines and corners any place they may think proper on the said tract of land, an acre and a half of ground (in the shape hereinafter described), on, in, and over which they shall have the exclusive right of digging, mining, and carrying away the ore therefrom; the said Fisher, his heirs and assigns, only reserving the right of passing-over and through the said acre and a half of ground, by a road or cut of twenty feet in width, and of sufficient depth for carts and wagons. The said Fisher, his heirs and assigns, to have the ore found in opening such road or cut, unless the said Milliken, McCulloch, and Mitchell, their heirs and assigns, choose to dig or open such road or cut at their own costs, in which case they shall be entitled to take or carry away all the ore found in opening or digging the same. The said acre and a half, when so laid off, is to belong exclusively to the said Millihen, MeQulloch, and Mitchell, so long as they shall continue to use the ore therefrom at the Furnace of ITojoe, or at any other furnace located as aforesaid; and in the event of there being a sufficient quantity of ore contained in the said acre and a half to be selected by the said Milliken, McCulloch, and Mitchell, they are to be confined in raising, digging, and carrying away ore, to the said acre and a half. But if the ore shall at any time fail in the said acre and a half, or prove insufficient to supply one furnace, the said Milliken, Mitchell, and McCulloch, their heirs and assigns, to have the right to dig for, raise, and carry away ore from any other part of the tract of land aforesaid, not interfering with any pits or mines which the said Fisher, his heirs or assigns, may open or be using.
    “It is agreed on the part of the said Fisher, that he, his heirs or assigns, will not enter upon the said tract of land, to dig or take away ore, before the 1st day of June, 1831, and from that time the said Fisher, his heirs and assigns, to be at full liberty, which is hereby expressly reserved, to dig, take, and carry away, at any and at all times, as much ore as they deem proper from the said land, except from the acre and a half conveyed to the said Milliken, McCulloch, and Mitchell: Fisher at the same time agreeing and binding himself that he will never assign the right of taking away ore to be used in any furnace in which the said Fisher is not personally interested or in part owner (save only the grant or assignment to the said Milliken, McCulloch, and Mitchell, herein contained). This covenant to run with' the mine or bank for ever.
    “ The said acre and a half of ground to be laid off by Milliken, Mitchell, and McCulloch, by lines parallel to, and at right angles with the course of the ridge which lies north-west of the mine — ■ the acre and a half to be laid out in a square.
    “In consideration of the premises, the said Milliken, McCulloch, and Mitchell, their heirs and assigns, covenant to pay to the said Isaac Fisher, his heirs or assigns, for and during the first year, to be computed from the time they shall commence to haul ore from the mine aforesaid, at the rate of forty cents per wagon-load of two tons unburnt for all the ore they shall haul away from the mine. At the expiration of the first year it shall be optional with the said Milliken, McCulloch, and Mitchell to pay at the same rate per load, or pay Fisher $250 per annum, and $100 to B. Walters, which Fisher has covenanted to pay him for each year he or his heirs or assigns may use the said ore-bank. If Milliken, McCulloch, and Mitchell should raise Hope Furnace to a greater height, then the sum to be paid Fisher annually — if they choose to pay by the year— shall be $350, and the $100 to Walters as aforesaid. If they should at any time build a new furnace on said run of eight feet, and shall choose to pay by the year, then the annual sum to be paid Fisher ■ — if they choose to pay by the year — shall be $500, and the $100 to Walters as aforesaid; and the sum to be paid Fisher, including the $100 to Walters, to be increased at the rate of $100_over and above §500 for every foot in the size of said furnace over and above eight feet in the boshes. It is further agreed, that after the first year, if the said Milliken, Mitchell, and McCulloch shall choose to pay by the load, they shall take and pay for at least eight hundred loads.”

    It appeared that the defendants, under this agreement, dug some ore, but never hauled any away. They some time afterwards sold “ Hope Furnace” to David W. Huling, and put him in possession in 1830. Huling dug and hauled ore under the agreement between Fisher and the defendants, for a number of years. On the 6th day of August, 1830, Isaac Fisher, without consulting the defendants, so far as the evidence showed, entered into the following agreement with David W. Huling:—
    “It is agreed between Isaac Fisher and David W. Huling, as follows: — Fisher is the owner of an ore bank, in Wayne township, by contract with Benjamin Walters, and Mr. Huling is owner of Hope Furnace, with the appurtenances, by purchase from Mitchell, Milliken, and McCulloch.
    “Now it is agreed between David W. Huling and Isaac Fisher, that the agreement formerly entered into with Mitchell^ Milliken, and McCulloch, is to be modified as follows: — David W. Huling having succeeded to all the rights of the latter, David W. Huling agrees to relieve and exempt Fisher from the payment of all and every sum and sums of money or metal to Benjamin Walters, on account of the ore to be used at Hope Furnace; and instead of the prices settled in the former agreement between Mitchell, Milliken, and McCulloch, to which this is declared a supplement, David W. Huling is to pay Fisher, his heirs, &c., twenty-five cents per load yearly, on the 1st day of April, and is to have the right of taking four hundred loads in each year, to make the payments to Walters, for which Fisher is not to receive anything; David W. Huling to pay or satisfy all claims of Walters, whether founded on contract with Fisher, or Mitchell, Milliken & Co.: the right of the parties to remain respectively as secured by the former agreement, of September 17th, 1829, except as above excepted, and except also that the following stipulation in the former agreement of September 17th, 1829, is abrogated and repealed, to wit: ‘ Fisher at the same time agreeing and binding himself that he will never assign the right of taking away ore to be used in any furnace in which he the said Fisher is not personally interested or in part owner (save only the grant to Milliken, McCulloch, and Mitchell, herein contained). This covenant to run with the mine or bank for everit being now agreed_that Fisher and Ms assigns are to be exempt and for ever discharged and released from this covenant. Witness our hands and seals, August 6th, 1830.”
    David W. Huling, who was examined as a witness under objection by the plaintiff, on the ground of interest, testified that Mil-liken, McCulloch, and Mitchell, never blowed “ Hope Furnace;” that he went into possession of said furnace in 1830; that he got his ore principally from the Walters bank and the Keiser bank; that all the ore he got from the Walters bank was under the written contract with Fisher, and which was read to the jury by him; that he had to pay Walters $100 yearly, which Fisher was to pay; that to pay that sum, it took four hundred loads of ore yearly; and that he never took more than four hundred loads yearly from the Walters bank, and that he consequently had nothing to pay to Fisher; that he had also an agreement with Walters, that if he took no ore, he was to pay no rent; that Fisher was with him, and he thought made this agreement with him simultaneously, or immediately after he purchased “Hope Furnace,” from Milliken, McCulloch, and Mitchell. His evidence was objected to by the plaintiff, and a bill of exception sealed by the court. The witness further testified as follows: — ■
    “ I can’t tell, whether before or after I made the purchase from Milliken & Co., I made the agreement with Fisher; but it was well understood if I made the purchase of Hope Furnace, I could get the ore from Fisher and Walters. Mitchell, Milliken, and McCulloch had raised some ore. I paid them for that. There was none hauled until I hauled it. They had raised some, and I paid for the raising of it.

      “Cross-examined. — I purchased out Milliken, McCulloch, and Mitchell, with the appurtenances. It was in writing; I took possession of Hope Furnace, under the agreement with them, but not of the ore-bank. I got that under an agreement with Fisher and Walters, 23d October, 1844. Served it yesterday.” Notice read to produce agreement with Huling for Hope Furnace.
    Joseph Milliken, sworn : — “I know nothing of that agreement; I don’t think there was an agreement. Mitchell drew the writing; I have no recollection I ever had it.”
    David W. Huling, further cross-examined by plaintiff: — “ The defendants had hands' coaling at the mines when I purchased. I estimated the expense ’of raising the ore, and paid for that; I continued raising there all the summer; I think I got possession in 1831; I do not know that I laid off the acre square; I claimed it, and if I laid it off, it was under. I think I had no hands working there before my agreement with Fisher. I did not come under their agreement to take ore; I claimed, I suppose, to dig ore under their agreement and mine with Fisher and Walters, but I was not going to dig ore under their agreement. I went into the matter in 1830, all about the same time; I never hauled any ore to any any other place than Hope Furnace, nor ever hauled from that bank to any other place.”
    This suit was brought to November Term, 1840; and the plaintiff alleged that he was entitled to the price of eight hundred tons of ore, yearly, from 1831 up to the time of bringing suit.
    It appeared from the charge of the court (Burnside, P. J.), that the plaintiff’s counsel contended that the first article was in force, and would so remain for ever; and that the defendants were bound to pay, under the said article, either $350 a year, or to pay for eight hundred tons of ore yearly — as the jury found the fact — which had accrued after the date of the article, and before this action was instituted.
    The following were plaintiff’s points, and the answers of the court to the same:—
    “ The plaintiff asks us to instruct you, 1. Under the legal construction of the article of September 17th, 1829, the easement or right of digging and taking away ore from the mine was appurtenant to Hope Furnace. We answer that the owners of Hope Furnace might have made it appurtenant to Hope Furnace under their agreement with Mr. Fisher.
    “2. That the use of the ore could not be separated from the furnace without the consent of Isaac Fisher. We agree the grant of the ore by Isaac Fisher was only for Hope Furnace, and such other furnaces as might be built on Strode’s Run, north of the turnpike.
    “ 3. That David W. Huling, Esq., in virtue of his purchase of the furnace, succeeded to the rights of using the ore at the furnace in the same manner that Milliken & Co. had it before their sale of the furnace to Huling; but there is no evidence before the court and jury what were the terms of their sale, and Mr. Huling on the cross-examination of the plaintiff discloses that he did not dig ore under the purchase from Milliken & Co., but under his agreement with Fisher and Walters, and that he was not going to dig ore under the plaintiff’s agreement with the defendants.
    “4. That Mr. Huling, by, virtue of this purchase of the furnace, and entering upon the easement of the ore-bank, became liable to pay Fisher the yearly sums which Milliken & Co. had contracted to pay. This would be true if Mr. Huling had entered on the ore under a purchase from Milliken & Co., and worked the ore-bank without any subsequent agreement with Isaac Fisher.
    “ 5. That Fisher had a right to enter into the article of the 6th August, 1830, for his further security, and that the said article did not operate as a release of Milliken & Co. from them contract with Mr. Fisher.
    “ 6. That there is nothing in the article of the 6th August, 1830, Obligatory upon Joseph Milliken, or McCulloch, or Mitchell, and that none of the stipulations in the said article would prejudice the defendants.
    “ 7. There is no evidence before the jury, of any act done by Isaac Fisher, which, in law or equity, releases or discharges the defendants from the covenant to pay the plaintiff as stipulated in the article.
    “8. That under the article of the 17th of September, 1829, the plaintiff is entitled to recover from the defendants the sum of $320 per year, with interest yearly: computing the time from the expiration of one year after the time the defendants or any one holding the title to Hope Furnace began to haul ore from the mine.
    “ 10. That under the article of the 6th of August, 1830, the only benefit that the defendant can claim, is to reduce the annual payments to $200 yearly, according to the price mentioned in that paper. The yearly payments to bear interest from the time they fell due.
    “The points, Nos. 5, 6, 7, 8, and 10, relate to the same subject-matter, and will be answered together. We agree Mr. Fisher had a right to enter into the article of the 6th August, 1830, if he thought proper to do so; but we cannot instruct that that article did not operate as a release of Milliken & Co. from the contract with Fisher. The jury will bear in mind that Milliken & Co. never blew Hope Furnace — never hauled a pound of ore from the Walters bank. They had dug some. Huling bought Hope Furnace, and then Huling and Fisher agree under their hands and seals that Huling is the owner of Hope Furnace, with the appurtenances, by purchase from Milliken, Mitchell, and McCulloch. Now it is agreed between them, Huling and Fisher, that the agreement of Fisher with Milliken, Mitchell, and McCulloch, is to be modified, and they go on and change the former agreement into material points. Huling made an agreement with Fisher. He went into possession and dug the ore and paid for .it. If these facts are true, and we do not see how their truth can be disputed, we think the agreement superseded his agreement with the defendant, and that tbe defendants may take tbe advantage of it, and they are discharged by the act of. Mr. Fisher from paying for the ore dug by Huling. You will bear in mind, that this article between Fisher and Huling was entered into before the defendants were bound to make an election, whether they would pay by the year or load. How could they elect after this agreement between Fisher and Huling ? If Fisher put Huling in possession, as Huling swears, was it not an ouster of the defendants ? and if he ousted the defendants, why should he support this action against them ? In the judgment, of the court, the plaintiff by his own act has destroyed his right of recovery against the defendants.
    “We are further asked to instruct you, 9. That under the pleadings in the action, the defendants admit the cause of action set forth in the plaintiff’s declaration, and the plaintiff is entitled to recover unless the defendants have shown that they have paid the plaintiff.
    “The pleas are covenants performed and payment with leave, &c. In Pennsylvania, the plea of payment with leave does not admit any material averment in the declaration, or statement, excepting the execution of the instrument upon which the action is brought, and except what is admitted by the general issue in every action: Roop v. Brubaker, 1 R. 304; which plea admits the contract as set out; but if the suit is for damages, for the non-performance of that contract, the damages must be proved; the mere averment by the plaintiff without evidence of the amount will not authorize a finding of more than nominal damages, unless when the amount was • part of the agreement.”
    To this charge, and the answers of the court to the points submitted, the plaintiff excepted. The jury found a verdict for the defendants: whereupon the plaintiff sued out this writ of error.
    The admission of Huling as a witness, and evidence given by him as embraced in plaintiff’s first and second bills of exception; and the answers of the court to plaintiff’s points; were the errors assigned.

      Fisher and Farlcer, for plaintiff in error.

      JR. O. and J. T. Sale, contra.

      May 22.
   Gibson, C. J.

The article of agreement between the plaintiff and the defendants was in substance the lease of a mine, and had all the consequences and qualities of one. • It was to be perpetual, or at least so long as the lessees should continue to use the ore for the furnace specified, in the deed; and they covenanted to pay forty cents the load for it, but they were to be at liberty to substitute an annual sum at their election, to be made at the end of the first year; and they further covenanted that if they should not so elect, they would annually take out and pay for eight hundred loads. They in fact made no substitution, and their covenant to take and.pay for the number of loads, and the price specified, became positive, absolute, and indefeasible. Thus bound, they sold their furnace, with the appurtenances, to Mr. Huling, who entered on the mine, but agreed with the plaintiff to'modify some of the terms of the lease. The plaintiff was bound to pay an annuity of a hundred dollars to the person from whom he bought the mine, the payment of which had been assumed by the defendants, but was now assumed by Mr. Huling, who was to be at liberty to take four hundred loads at the rate of twenty-five cents each, to meet the charge, and at the same rate for whatever else should be taken by Mm. In every other point and particular, the covenants and stipulations in the lease were to remain intact.

On the principlés of the action and those resulting from the relation of landlord and tenant, a doubt is entertained whether something less than a release might not absolve the defendants from the obligation of their covenant. It is a doubt, however, which I myself do not entertain; and, without having the authority of the court for it, I am free to say that 'nothing but a surrender, a release, or an eviction, can, in whole or in part, have that effect. It will not be pretended that any arrangement or dealing of the lessor with a stranger, would have it at law; and it is clear that equity will not relieve the lessee from Ms positive covenant for any act of the lessor which does Mm no injury. As he cannot be prejudiced by the landlord’s 'relation with a third person, there is every reason in the world why he should not have an advantage from it. The relation of landlord and tenant as to a covenant for payment of the rent, can be dissolved only by an agreement between themselves, which equity would enforce; but there was neither such agreement here, nor a consideration for one, nor was there privity between them as regards the arrangement with Mr. Huling. In conformity to this principle, it has been held in an almost countless number of cases collected in Comyn on Landlord and Tenant, 275, that the tenant is bound by a covenant to pay the rent, though he assign his lease with the landlord’s assent, and though the latter accept the assignee for Ms tenant and receive rent from Mm. My own opinion is, that this principle covers and disposes of the whole case. For the same reason, equity refuses to relieve against such a covenant, though the premises be consumed by fire, destroyed by the elements, or encroached on by the sea. It is true that in Camden v. Morton and Brown v. Quilter, 2 Eden’s Rep. 219, in which it appeared that the landlord was insured and, the premises having been consumed, had received the insurance money, a court of equity enjoined him from-proceeding on the covenant till he should rebuild, and left the tenant his option to surrender his lease in case he should refuse to do so. But in Hare v. Groves, Anstr. 681, in which Chief Baron McDonald said there “might be some equity to say that he should not keep the house or its value and receive the rent also; and in Holzapffell v. Baker, 18 Ves. 115, in which it was observed at the bar that it was difficult to conceive how the distinct contract of the lessor with the insurance office, tvith which the lessee had no concern, could affect the right between them — chancery refused to interfere. It is just as difficult to conceive how the distinct contract of the plaintiff with Mr. Huling, which did not prejudice the defendants, and with which they had no concern, could release them from their covenant. From the two cases last quoted, the conclusion of Mr. Chitty — and it is eminently entitled to respect — is, that the two preceding ones are overruled.

But not to insist on the peremptory nature of the covenant, a majority of the court concur that the modification of the lease by the agreement with Mr. Huling, did not disturb the engagement to take and pay for, at the original price, the number of loads originally specified. With Huling, so far as he was concerned, the plaintiff agreed that the price should be twenty-five cents the load, but Huling did not bind himself to take any particular number of loads. He stipulated for liberty to take four hundred, or barely enough for payment of the annuity which he took upon himself; so that if the covenants of the defendants were discharged, the plaintiff might get nothing more for his mine. But the covenant in the lease to pay for eight hundred loads was expressly reserved, and on every principle the defendants are bound by it. But how far ? It follows not that because the plaintiff might choose to let Mr. Huling have all the ore he should take at a reduced price, he would be bound to let the defendants off at the same price for loads not taken at all. The contract with Huling extended only to loads taken; not to what should not be taken: and in prejudice of the landlord’s absolute security, it is not to be extended by implication. Nad Mr. Huling agreed to raise the price, the defendants would tot have been bound by it, and it is impossible to conceive ho they could avail themselves of the agreement to lower it. They were not parties to it, nor, as regards it, in privity with those that were. The objection that the two contracts are inconsistent with each other, and that the plaintiff might recover a double satisfaction by an action on each of them, presents but the shadow of a difficulty. It never has been conceived that payment of rent by an assignee, is not pro tanto payment by the assignor. Payment even by a stranger will discharge a debt; and it has not been supposed, when the landlord accepts the assignee of a covenantor who becomes liable only on privity of estate, that he has two rents, instead of two securities for the same rent. When there is no covenant, express or implied, by the lessee to pay, and debt is brought on the reddendum in the deed, he has not even that; for it appears by Wadham v. Marlowe, 8 East, 314, that where there is barely a reservation without a covenant to pay, the lessee is discharged by an assignment, because there is then no privity either of contract or estate between the original parties, and the assignee becomes liable on privity of estate only. There is really, therefore, no difficulty in the case before us. The plaintiff is entitled to recover the value of eight hundred loads a year at the original price; but not the amount of the annuity paid by Mr. Huling. The objection to the competency of the latter as a witness, is not sustained. He paid for as many loads as he was bound to do, so far as we know, by the contract of assignment, and does pot appear to be responsible to any one: not to the plaintiff, because he performed his agreement with him; and not to the defendants, because he was bound1 to perform no covenant but his own. He was therefore disinterested.

Judgment reversed, and venire de novo awarded.

Bell, J., dissented: and Burnside, J., took no part, having ruled the cause below.


source: Caselaw Access Project

license: Public Domain

text:
    Davis v. Norris et al.
    Where the writ of scire facias, on a final judgment in partition to enforce owelty of partition, recited the record of a judgment in an action of debt, and the record adduced in support of it exhibited a judgment in an action of partition: it was held, that mil tiel record was a good plea.

      The writ of scire facias, in such cases, should recite the impleading, the interlocutory judgment, the award of an inquest, the inquisition, and the final judgment ; and it should contain an averment, that the defendant had not paid, followed by the usual conclusion.
    Writ of error to the Common Pleas of Mifflin county. This case was tried at a special court, held before Judge PIepburn.

      May 19. It appeared from the paper-book that an action of partition had been instituted in the Court of Common Pleas of Mifflin county, by James Davis, against Norris, Rawle, and Hall, to obtain partition of one hundred and forty-three acres of land, situated in Armagh township, Mifflin county, which had been held together by the parties.
    Judgment of partition was obtained, and a writ de pwrtitione facienda issued. In pursuance of this writ, a jury was summoned and taken to the premises, which they divided into two equal parts, and assigned one thereof, by metes and bounds, to the defendants, and valued and appraised the same at $2,174.68; the other part they assigned by metes and bounds to the plaintiff, and valued and appraised the same at $2,730.76J.
    Said inquisition was held on the 26th and 27th September, 1836. On the 8th November, 1836, the same was confirmed by the court.
    In pursuance of the above-stated proceedings, it appeared that the parties entered upon and held their respective purparts in severalty.
    On 23d Feb., 1844, the death of John Norris was suggested, and his executors William B. Norris, John Norris, and James C. Norris substituted; and on the same day a judgment was entered, after notice to the plaintiff Davis, that the partition remain firm and stable for ever; and that the share or purpart allotted by the inquest to James Davis the plaintiff, should be subject to the payment to the executors of said John Norris, deceased, and Rawle and Hall, of the sum of $278.04, with interest from 8th November, 1836, being the amount or sum of money, which with the share or purpart allotted to the defendants, as appeared by the valuation and appraisement, is equal in value to the share or purpart allotted to the said James Davis.
    For the purpose of enforcing payment of this money, a writ of scire facias was sued out by the executors of John Norris, deceased, and Rawle and Hall, against James Davis, returnable to August Term, 1846, No. 157, in the following form:—
    “Whereas the executors of John Norris, deceased, Rawle and Hall, lately in the Special County Court of Common Pleas, before our judges, at Lewistown, to wit: in the Term of April, in the year of our Lord one thousand eight hundred and forty-four, by the consideration of the same court, recovered against James Davis, late of your county, yeoman, as well a certain debt of $278.04, with interest from the 8th November, 1836, lawful money of the United States; as also $34.46, which to the said executors of John Norris, deceased, Rawle and Hall, in our said court were adjudged [for their damages which they sustained by occasion of the detention of that debt whereof the said James Davis is convict, as appears of record]. And whereas, by existing laws of the commonwealth of Pennsylvania, the lien of the said judgment on the real estate of the said James Davis would be lost unless the same be revived within five years from the day on which the said judgment was entered, or a writ of scire facias to revive the same be sued out within the said period. And whereas execution of said judgment still remains to be had, as we have been given to understand ; and because we are willing those things that are just should be done in this behalf:
    “ Therefore we command you, that by good and lawful men of your bailiwick, you make known to the said James Davis that he be and appear before our judges, at Lewistown, at our County Court of Common Pleas, there to be held on the 7th day of August next, to show cause, if anything he hath or knows, to say why the judgment recovered by the said W. B. Norris, executor of John Norris, deceased, Rawle and Hall, against him the said James Davis, as aforesaid, ought not to be revived and continue a lien on the real estate of him the said James Davis during another period of five years, according to the acts of General Assembly in such case made and provided, and why execution should not issue [for damages aforesaid], according to the force, form, and effect of the recovery aforesaid, if to him it shall seem expedient; and have you then and there the names of those by whom you shall make it known to him, and this writ.”
    To this scire facias the plea of payment was put in, and subsequently the plea of nul tiel record was added.
    On the plea' of nul tiel record, the court gave judgment for the plaintiffs in the seirefacias against James Davis, the defendant in said writ.
    The cause was then tried on the plea of payment; and a verdict rendered in favour of the plaintiffs for $449.13. But as the Supreme Court have given no opinion on the questions that arose under the plea' of payment, and have reversed the judgment on account of the defectiveness of the writ of scire facias, the proceedings on the trial are not noticed in this report.

      Benedict and Barker, for plaintiff in error.

      Ii. O. Sale, contri.

      June 8.
   Gibson, C. J.

As the judgment on the plea of nul tiel record is clearly erroneous, it is unnecessary to notice the assignment of any other error. There was actually no judgment quod recuperet to support the recital in the scire facias; but, in addition to the judgment that the partition be held stable for ever, there was an unnecessary order that the purpart assigned to the plaintiff in the partition, should be subject to the sum with which it was charged for owelty — a consequence that would have been produced by the statute itself, without any judgment or order to effect it. The scire facias recites that the defendants in the action of partition, who were the plaintiffs below in the present proceeding, by consideration of the court, recovered against the plaintiff in the partition, -as well a certain debt of so much, as another sum of so much as their damages and costs. There is no such judgment in the record. The final judgment in partition is quod partitio firma et stabilis in perpetuum teneatur ; and the statute authorizes nothing to be added to it. It charges owelty of partition, awarded by an inquest, on the purparts proprio vigore ; and the process to enforce payment of it, is a simple and a natural one: as under a certificate of balance attached to a verdict for the defendant pursuant to the defalcation act, a sum awarded as owelty becomes a debt of record. True, the statute does not direct a scire facias to be sued out for it, as for a balance certified by a jury; but it results from the nature of the debt that such a writ is the proper process; and the form of it must consequently be adapted to the truth of the case. It ought, therefore, to recite the impleading, the interlocutory judgment, the award of an inquest, the inquisition, and the final judgment; and it should contain an averment that the defendant had not paid, followed by the usual conclusion. A moderate share of attention to the frame of the writ, would enable a pleader, of competent patience aúd moderate skill, to adapt it to the legal effect of the record. The writ before us recites' the record of a judgment in an action of debt; and the record, adduced in support of it, exhibits a judgment in an action of partition : consequently the plea of nul tiel record ought to have' been sustained.

Judgment reversed.


author: Rogers, J.

text:
    Mitchell v. Mitchell.
    A sale under a 'testamentary power, for payment of debts, discharges the land from the dower of testator’s widow.
    In error from the Common Pleas of Mifflin county.

      May 19. Mitchell, by his will, after making a provision for his •wife and children, directed his “ executors to rent the farm whereon I now live, for five years, and apply the proceeds to the payment of my debts, excepting so much as will be necessary for the support of my widow and children; and if they find it necessary and advantageous to make a sale of it, I hereby give them full power and authority to sell and convey the same, they applying so much of the proceeds thereof as will be necessary to pay my debts, if they remain unpaid, and the balance put to interest,” &e. The widow renounced the provisions under the will; and the executors sold the land and applied the whole of the personal estate and part of the proceeds of the land to the payment of debts. The widow then commenced this action of dower against the purchaser, at the trial of which the verdict and judgment were entered for defendant, and the demandant sued out this writ of error.

      Sale and Benedict, for plaintiff in error.
    2 Yeat. 302; 2 Hill. Ch. 49; 4 Kent, 57; 20 Pick. 556; 1 W. & S. 160.

      Parker and Fisher, contó.
    2 Pa. 320; 3 Rawle, 393; 2 lb. 168; 2 Dali. 271; 1 Yeat. 553; 1 Rawle, 667; 3 Barr, 60, 68.

      May 29.
   Rogers, J.

In the view we have taken of this case there is but one question which it is necessary to examine, namely, Whether the widow is entitled to dower. (His honour here stated the case.) The widow alleges that she refused to take under the will; and granting that she did, the question is, whether she can sustain an action of dower at common law against the purchasers of the estate so sold by the executors.

There are certain fundamental principles in this state which have existed from the time of the earliest settlement of the province. Thus lands have always been held as chattels for payment of debts. Prom this principle it necessarily follows that a husband may confess a judgment; and a sale of his lands on the judgment will bar the wife of dower. Also it is ruled that a sale under a power to sell for payment of mortgage divests the dower of the wife when the husband alone mortgaged the land: Scott v. Cresdale, 2 Dall. 128; Deshler v. Beary, 4 Ib. 301. So a sale under the order of the Orphans’ Court for the payment of debts bars the widow’s dower, and this whether the party from whom the lands descends dies testate or intestate. Also a sale ordered by the Orphans’ Court by an executor cum testamento annexo for the payment of debts, where there is no authority to sell in the will, has the same effect. Indeed all the cases without exception conclusively prove that dower in this state is in all respects subordinate to the rights of creditors. She is only entitled to the surplus, after satisfying their claims. Whether this is an improvement in the principles of the common law may admit of some doubt, but that this principle is so firmly incorporated into the jurisprudence of this state as not to admit of doubt, must be conceded. In Scott v. Cresdale and Deshler v. Beary, before cited, reference is made to Howell v. Lacock, which goes far to rule this case. In Scott v. Cresdale, Mr. Wilcocks stated that in Howell v. Lacock it was determined that a sale by an executor to whom lands were devised for the payment of debts barred the widow; and in Deshler v. Beary, Mr. E. Tilghman, than whom there was no more accurate and able lawyer, reputed Jacob’s case to be that dower was barred when the husband alone mortgaged land, and his executors, under a power in the will, with the consent of the mortgagee, sold the land for the payment of debts. It must therefore be taken as settled, that if in the case in hand there had been a mortgage^and he had consented to the sale, the widow would be barred of dower. But can the consent of the mortgagee make any difference as to the divestiture of dower ? His consent was only necessary because he had a specific lien, which the sale by the executor could not divest. The case of Howell v. Lacock also shows that the principle does not depend upon whether it was a judicial sale, or under a power in the will, for otherwise it is impossible to conceive what difference the consent of the mortgagee could make.

It was a point in the case, but not essential to the main point, whether the dower was barred by the sale; nor does it appear that the case was ruled on that ground. By the law of this state debts of a decedent remain a lien on the land limited to five years, except secured by mortgage or judgment. If then a sale by an executor under an authority given by will to sell real estate, will discharge such real estate from dower, as held in Howell v. Lacock, why may not a sale under a power in the will, to sell for payment of debts, when sueli debts are made a lien by law on the real estate, and the proceeds of sale are accepted by the creditors, have the Same effect ? A subsequent satisfaction by receipt of the money Will bar the creditors, and have the same operation as a previous assent. Besides, when lands are sold by an executor under a power to sell for payment of debts, the purchaser takes the land discharged of the lien, as is held in Harris v. Spear, 1 Y. 533; 2 Dal. 293. The purchaser is not hound to look to the application of the purchase-money, hut takes the land unincumbered with the lien of the debts. The debts being a lien irrespective of dower, the creditors being preferred to the wife, it would he unjust to them, that, when the executor sells for payment of debts in pursuance of a power, the dower should remain; as that would obviously, to the extent of its value, be real assets pledged to the payment of debts, and would in effect take as much out of the pockets of the creditors. Nor'do we perceive the policy of ruling this point in favour of the donor clear of dower, for that will only have the effect of preventing all sales by executors, without invoking the aid of the Orphans’ Court. In that case, the expense to the estate will he increased, without the slightest advantage to either the widow or creditors. Nor is any injustice done to the widow, as she is entitled only to one-third of the surjilus after payment of debts. Besides, the creditors, in all cases when the estate was insolvent, would he put in the power of the testator: as the executors could, if so disposed, sell the real estate without the assent of the creditors, thereby divesting the lien of the debts, and giving to the widow her dower in all the real estate of which he died seised.

Judgment affirmed.


author: Coulter, J.

text:
    Commonwealth v. Steel.
    The act of the 24th of March, 1818, being a supplement to the act of the 10th. of March, 1810, taxing certain offices, extends only to officers who have resigned office, or been removed therefrom, before the expiration of their term of office, and was not intended to apply to officers in the continuous discharge of the duties of their offices.
    Where one was elected to the offices of Prothonotory of the Court of Common Pleas, and clerk of the Courts of Oyer and Terminer, &c., and Quarter Sessions of the peace, for two consecutive terms of three years each; and the fees received in each of the three years of his first term, and in the first year of his second term, did not reach the sum of $1500, and those received in the second and third years of his second term exceeded that sum; he cannot, under the act of the 24th of March, 1818, appropriate the excess over $1500, of fees received in the last two years of his second term, to supply the deficiencies in that sum, which occurred in the four preceding years.
    In error from tbe Common Pleas of Huntingdon county.

      May 19. This case came into the court below, by appeal, at tbe instance of tbe Commonwealth of Pennsylvania, from tbe report of tbe auditors of Huntingdon county, in and by which, under tbe act of 16th of April, 1845, tbe accounts of James Steel, as Prothonotary of tbe Court of Common Pleas, and Clerk of tbe Courts of Oyer and Terminer, &c., and Quarter Sessions of tbe Peace of Huntingdon county, with the Commonwealth of Pennsylvania, were audited, examined, and settled. Tbe court thereupon directed an issue, to try whether James Steel, prothonotary, &c., as aforesaid, bad paid over all tbe moneys due by him to the commonwealth, on fees received by him during bis tenure of, and continuance in tbe offices aforesaid; and if not, to ascertain and find what sum or sums of money, out of the fees received by him as aforesaid, up to the time his said accounts were audited and settled, were due and owing by him to tbe commonwealth. Tbe facts of the case, and tbe questions raised at tbe trial of tbe issue in the court below, are clearly stated in tbe charge of bis honour Jjidge Wilson to the jury, tbe material parts of which are tbe following:—
    “ Tbe defendant was elected to tbe offices of prothonotary of tbe Court of Common Pleas, clerk of the- Courts of Oyer and Terminer and General Jail Delivery and Quarter Sessions of tbe Peace, in the fall of 1839, for the term of three years, and took upon himself the duties of these offices on tbe 1st of December, 1839.

      “ He was re-elected to the same offices in the fall of 1842, and for bis second term of three years, entered upon tbe duties of bis offices on the 1st of December, 1842.
    “ He was again re-elected in the fall of 1845, and commenced , bis third term 1st of December, 1845.

      “ The amount of fees actually received by tbe defendant in the three offices held by him, are agreed upon by tbe parties; and show that, to the dates at which his accounts were to be annually settled, he received tbe following sums, to wit
    To tbe 1st of October, 1840, “ “ “ 1841, “ “ “ 1842, . “ “ “ 1843, “ “ “ 1844, . “ “ “ 1845, $486.05f 1,051.61 1,084.16 1,480.511-2,561.33 2,141.48

      “The 1st of October, 1846, when the next annual settlement would have taken place, bad not arrived when this proceeding was commenced, but is embraced in the case in hand.
    “ It will be observed that the four first years Mr. Steel held these offices, the fees actually received by him did not produce the excess upon which 50 per cent, was payable to the commonwealth.
    “ The commonwealth contends that the first four years (as the actual receipt of fees in the offices held by Mr. Steel did not reach the sum of $1,500) are not to be taken into the account to show his liability to the plaintiff; that the settlement must b.e based on the amounts actually received each year; and that where there is an excess received in any one year over $1,500, that such excess cannot be applied to make up a deficiency of the preceding years. Secondly, that if such excess can be'applied to a preceding year in which there is a deficiency, it cannot be carried back to supply a deficiency of a year in any preceding term of the three years for which the officer is elected and commissioned, but that the receipts of each term of his offices must be settled and accounted for irrespective of a preceding or subsequent term.
    “ On the first of ¿these positions, the auditor-general and state treasurer settled the account of the defendant, from the returns made by him to the auditor-general’s office, by throwing out of view the first four years, when the fees received by the defendant did not reach, in any one of said years, $1,500, and taking the years 1844 and 1845, in each of which he received more than $1,500, and charge him with 50 per cent, of the excess of these two years. On this basis the balance was struck and entered by the auditor-general, on the 22d February, 1846.
    “ Under the act of 16th April, 1845, Pamph. Laws, 534, the mode of adjusting the accounts of the prothonotaries is changed: and it is made the duty of the county auditors to audit and settle the accounts of the prothonotaries for all taxes and other dues to the commonwealth received by them, &c.; and makes it the duty of the auditors of the several counties, at their next annual meeting (after the passage of this act) to audit the accounts of the several county treasurers, to audit, examine, and settle the accounts of the several prothonotaries, registers, and recorders of the respective counties for the years 1841, 1842, 1843, and 1844, and certify to the auditor-general, any and all balances they shall find to be due to the commonwealth from the said officers, for the said years; and the auditor-general is required to give information thereof to the state treasurer, who is to proceed to collect such balances, &c.
    “Under the provisions of this law, the auditors of the county, at their first meeting after its passage, when they met to audit the accounts of the treasurer of the county, to wit: on the 27th of January, 1846 (which was before the action of the auditor-general, striking and entering the balance in his department), audited and settled the accounts of the defendant, including the whole time of his holding the offices up to the 1st October, 1845. The auditors of the county proceeded on the principle of allowing the defendant the deficiency necessary to make up the sum of $1,500, for the years ending 30th September, 1840, 1841, 1842, and 1843, out of the excess of the years ending 30th September, 1844 and 1845, and ascertained the whole excess of the fees received by the defendant, after allowing him $1,500 a year for six years, to be $407.22 ; 50 per cent, of which, payable to the commonwealth, was $208.61: to meet which sum the defendant produced the receipt of the state treasurer, dated January 13, 1846, for $221.00, by which the commonwealth was overpaid $12.39.
    “ The principle adopted by the auditor-general and state treasurer, by adding the fees received from 1st Oct., 1843, to 1st Oct., 1844, $2561.33
    to the fees of the succeeding year, ending 30th Sept.,
    1845,......... 2747.48
    Makes the aggregate of......$5308.81
    And deducting, for each of said years, $1500, - - 3000.00
    Left this balance, ------- $2308.81
    On which to charge the defendant with 50 per cent., which would show in the receipt of moneys due commonwealth, ------- - $1154.40-|-
    From which deduct the payment by defendant, 221.00
    $933.40J
    The principle adopted by the auditors of the county, which is the correct one, is founded on the act of the 24th March, 1818.
    “ The defendant has continued without intermission in the three offices, from the 1st December, 1839: he having been twice reelected and recommissioned.
    “ The counsel for the commonwealth contend that the allowance for a deficiency of any year, while the officer holds the office, is only to be made up to him out of the fees received after he is out of office, when his official duties have ceased by resignation or removal.
    “ The law, as I view it, clearly intended to make the compensation of the officer for his services, $1,500 for each consecutive year he is in office, if the office or offices he holds will yield that sum; and any excess of fees made by him while in office, after he has received $1,500 for each year he holds the office, he shall be taxed at the rate of 50 per cent., to be paid to the commonwealth, when received by the officer — but that he is not obliged to pay any of the 50 per cent, to the commonwealth, until each year he has been in office has produced Mm $1,500. And the payment by the defendant, exceeding 50 per cent, on the surplus, received by him, after his allowance of $1,500 per year, for the time he held the offices, up to the time the accounts were audited by the county auditors, he will be entitled to your verdict.”
    The plaintiff requested the court to instruct the jury:—
    That if the fees received by James Steel, prothonotary, &c., in any one year during Ms continuance in office, amounted to more than $1,500, he is bound to pay the commonwealth one-half of the excess.
    That James Steel having been elected to the offices of prothonotary, &c., in October, 1889, and entered upon the duties of said offices 1st December, 1839, for the term of three years, and having been re-elected and commissioned for the term of three years from 1st December, 1842, he is not entitled to appropriate any part of the surplus proceeds of his second term to supply deficiencies under $1,500 in any year in his first term.
    That having continued in office, as aforesaid, from 1st December, 1839, till 1st December, 1845, and being still in office, he is not entitled to the benefit of the act of 24th March, 1818, until he shall have gone out of office.
    To this request, the court answered as follows:—
    “We refuse to answer as above requested, and for explanation of our views on each, refer to our general charge.”
    The jury found for defendant; whereupon the plaintiff sued out this writ of error.
    Errors: The court erred in refusing to instruct the jury as requested by the plaintiff; and in the instructions to the jury in then’ general charge.

      Msher, for plaintiff in error.
    Miles, contrá.

      May 22.
   Coulter, J.

The act of the 24th March, 1818, being a supplement to the act of 10th March, 1810, taxing certain offices, by its very terms extends only to officers who have resigned or have been removed from office, and was clearly not contemplated to apply to any officer while in the discharge of the duty of his office.

There exists no good, or even colourable reason why the courts should strain the act to embrace the case of officers who continue in office. Whenever the defendant resigns or is removed from his office, he will be entitled to the benefit of the act of 1818, and belong to the class of persons for whose benefit it was enacted. It must have been within the knowledge of the legislature that prothonotaries, in the first years of their holding office, would probably not receive to the amount of $1,500, for the act of 1818 is predicated on that basis; and that in subsequent years, especially if they were reappointed, they could receive more, yet they are totally silent as to making up the deficiencies of the first years, by the excess of what was received in subsequent years. The act of 1818 was itself hardly excusable as a measure of justice to the commonwealth, but if it was to be extended as interpreted by the court below, it would leave the commonwealth to receive the tax out of the dribs and pickings of fees that the officer chose to let remain until he was out of office. The intent of the act of 1810 was, that for all the fees which the officer received in any one year above the $1,500, he should account to the commonwealth for one-half or 50 per cent. The act of 1818 provided that when any officer resigned, or was removed from office, he should be allowed to receive from his successor in office so much of the fees remaining due to him as would make up the amount of any one year, or of every year while he was in office $1,500, and that for the sums beyond that received from his successor he should account on oath, upon the terms prescribed in the act of 1810. It will thus be observed that the whole structure of the act of 1818 is made applicable to a prothonotary who is out of office, and that it is impossible, without doing violence to its spirit, phraseology, and purpose, to make its provisions applicable to the case of the defendant.

We are of opinion that the three points submitted by the counsel of the commonwealth ought to have been answered in the affirmative.

Judgment reversed, and a venire de novo awarded.


author: Burnside, J.

text:
    Shoenberger v. Mulhollan.
    The act of the 28th of March, 1840, entitled “A supplement to the act entitled ‘an act regulating lateral railroads,’ ” passed on the 5th of May, 1882, extends the privilege of making and constructing lateral railroads over intervening lands, to the owner or owners of land, mills, quarries, coal or other mines, lime-kilns, or other real estate, in the vicinity of any railroad, canal, or slack-water navigation, made, or to he made hereafter, hy any company, individuals, or by the state of Pennsylvania, to each and every county in the state.
    Although the acts of Assembly do not authorize any one but the owner or owners of land, in the vicinity of any railroad, canal, or slackwater navigation, to make lateral railroads over the intervening lands of others; yet, where a petitioner for a lateral railroad, from his coal-mine, over intervening land, to the Alleghany Portage railroad, proved that he was in possession of the coalmine, and of the tract of. land on which it was, previously to, and at the time of the commencement of the proceeding; and that he had built thereon a two-storied dwelling-house, which had been in actual occupation from the time of its erection: it was held, that he had established an equitable title in himself subject to all the incidents of a legal estate, and amply sufficient for the purposes of the proceeding.
    The lateral railroad act is constitutional: Harvey v. Lloyd, 3 Barr, 331.
    In error from the Court of Common Pleas of Blair county.

      May 22. This was a feigned issue, formed under the direction of the court below, under the act of the 5th of May, 1832, entitled “An act regulating lateral railroads,” for the purpose of trying whether a lateral railroad, proposed to be constructed by George Mulhollan and William Lyon, the plaintiffs below, and defendants in error, was necessary and useful for public or private purposes; and whether the damages sustained by Dr. Peter Shoenberger, the defendant, exceeded $100.
    It appeared that George Mulhollan and William Lyon, the plaintiffs in the issue, on the 26th of December, 1846, presented to the Court of Common Pleas of Blair county a petition, of which the following are the material parts:—
    “ The subscribers respectfully represent that they are the owners of a tract of land in Blair county, having coal-mines thereon, distant not more than one mile from the Alleghany Portage railroad, made by the state of Pennsylvania. That, intervening between the land aforesaid .of your petitioners and the said railroad, is a body of land, in said Blair county, claimed or owned by Dr. Peter Shoenberger; that your petitioners, desiring to make a railroad from their said land over the aforesaid land of said Dr. Peter Shoenberger to the said Alleghany Portage railroad, have marked and surveyed a route over said intervening land as 'follows [Boundaries, and courses and distances omitted here]: being altogether, from the intersection of said Portage railroad to the land aforesaid of your petitioners, one hundred and forty-six perches and fifteen links; and prayed the court to allow them to construct and finish a railroad in and upon the route as surveyed and marked, and to appoint six disinterested and judicious men to view and examine the proposed route, and to make report according to law.”
    Notice in writing of the intention of the petitioners to present the above petition, was duly given to Dr. Peter Shoenberger.
    The court thereupon appointed viewers to examine the route selected and surveyed, who reported “ that they did find and deem the same necessary and useful for private purposes,” and that the damages which Dr. Peter Shoenberger would sustain by the opening, constructing, and completing the road, was $100. From this report, Dr. Peter Shoenberger appealed to the Court of Common Pleas. The court thereupon directed an issue; the material parts of which, considered necessary to be given in this report, were as follows:—

      “ It is hereby ordered that the said George Mulhollan and William Lyon enter an action upon the case in the said court as of September Term, A. D. 1841, now next ensuing, in the name of them the said George Mulhollan and William Lyon against the said Dr. Peter Shoenberger, and that the said Dr. Peter Shoenberger cause an appearance to be entered for him to the same, and that the said George Mulhollan and William Lyon shall declare, as of the said term, upon a discourse had and moved by and between the said parties of and concerning the said report of the viewers aforesaid, and that the said Dr. Peter Shoenberger, in consideration of a mutual promise on the part of said George Mulhollan and William Lyon to him made, did promise to pay to the said George and William the sum of-dollars, in case they, the said George and William, should make it appear to the court and jury: 1st. That the road mentioned and set forth in the said report is necessary and useful for public or private pur-, poses; and, 2d. That the damages which will be sustained by the said Dr. Peter Shoenberger by the opening, constructing, completing, and using the said railroad by the said petitioners, will not exceed the sum of $100, the amount reported by the said viewers; and that the said Dr. Peter Shoenberger shall plead issuably to the said declaration, so that an issue may be formed and tried by a jury agreeably to the acts of Assembly.

      “And it is further ordered, that the circumstances of the said mutual promises, and of the affirmations and assertions laid in the declaration, shall be confessed, so that the trial may be on the merits, and that the costs shall follow the verdict; but the said verdict shall give no title to either party to recover of the other the sum laid in the declaration as the wager.”
    The declaration filed by the plaintiffs averred that the railroad, in the report of viewers mentioned and described, was necessary' and useful for private purposes; and that the damages sustained by the defendant, by the construction and use of the same, would not exceed the sum of $100. To this declaration, the defendant demurred specially. But the court refused to allow the demurrer to be filed, because it was a violation of the form of the issue, as directed by the court. The defendant then filed three special pleas.
    The first plea denied the averments in the declaration as to the necessity and usefulness of the proposed railroad for private purposes, and as to the amount of damages which would be sustained by the defendant by constructing and using the same. The second alleged that the plaintiffs, at the time of the institution of the proceedings upon which this issue was formed and directed, did not own the tract of land containing the coal-mines, nor had they any title to the said tract at that time or since. The third averred that the railroad had been improperly located by the viewers, and that it might have been located on ground, so as to have been of private use to the plaintiffs and less injurious to the rights of the defendant. The second and third• pleas were stricken off by order of the court, and the parties directed to go to trial on the issue formed by the first plea.
    On the trial in the court below (Black, P. J.), the plaintiffs read in evidence, under objection by the defendant, the petition presented by them, and the notice thereof to the defendant, after proving its service. This was defendant’s first bill of exception to evidence.
    The plaintiffs then gave in evidence the order to the viewers, .and their report.
    The plaintiffs then called and examined a number of witnesses, • one of whom testified, that the lateral railroad, as proposed to be constructed by the plaintiffs, would be no interference to the defendant in working his mines; that there was no other point in that immediate neighbourhood whore the plaintiffs could connect with the state rpad, without interfering more with the defendant than it did at the point selected by them; that it was the shortest level on the road, being only about three hundred yards; that then it might be necessary for defendant, when business was brisk, to have more room than he then had, for standing his empty ears; that he was cramped for want of an additional side-track, which would be of easy construction. Another witness testified, that there was no other route, except the one selected, by which the plaintiffs could get out to the state road with their coal; that it would not interfere with the defendant’s operations; that all the damage he would sustain would be the loss of his land; and that the defendant was present when the viewers commenced their examination of the ground and proposed route for railroad. Other witnesses, besides corroborating the testimony above stated, testified that the only practicable route for the proposed railroad, was the one selected; that there was no other route over the land of the plaintiffs ; that no other could be adopted without injuring the defendant more; and that neither the timber nor land was valuable. The witnesses differed in opinion as to the damages which would be sustained by the defendant, by reason of the construction of the proposed railroad, ranging in their estimates from $50 to $100. It was proved that the plaintiffs were in possession of the ore-bank, and of the tract of land on which it was situated; that they built a two-storied hewn log house thereon, of the dimensions of thirty-two feet by twenty, and a stable also; that the house was begun in October, 1846, and finished in January, 1841; and that it was in actual occupation from the time of its completion. On the part of the defendant, it was proved, that- he laboured under great disadvantages for want of an additional side track from his mines to the state road; that the best route for its construction would be on the southern side, where the plaintiffs’ road intersected the state road. No evidence was given by the defendant, in relation to the proposed railroad of the plaintiffs, nor in relation to the damages which would be sustained by him from its construction and use. But he offered to prove, that the plaintiffs were not the owners of the land in which was their coal-mine. But the court were of opinion that the title to the land could not be tried on that issue; that if the plaintiffs were in possession, it was sufficient; and that the defendant might prove, if he could, that they were not in possession. This was defendant’s second MU of exceptions.

    The defendant’s counsel requested the court to instruct the jury as follows: — ■

      1st. That the act of the 5th May, 1832, and its supplements, have no application to the land described in the plaintiffs’ declaration ; that there is no law in force authorizing the proceedings which have taken place in this ease, and that their verdict ought to be for the defendant.
    2d. That whether the act of the 5th May, 1832, and its supplements, be extended to the land described in the plaintiffs’ declaration or not, the plaintiffs cannot support the proceedings which have been given in evidence, and have no right to a verdict in their favour, if they have failed to show that they were the owners of the said land, previous to the time their proceedings given in evidence as aforesaid wore commenced.
    3d. That as the title has not been shown by the plaintiffs to be out of the commonwealth, they have shown no such possession of the land previous to the commencement of their proceedings as the law would recognise, that their verdict therefore should be for the defendant.
    4th. That the plaintiffs have shown neither a legal nor an equitable title to the land described in their declaration.
    5th. That if the jury believe the land at the terminus of the proposed railroad of the plaintiffs belongs to the defendant, and that the possession of it by the defendant is necessary to the convenient conducting of his own coal operations, the plaintiffs cannot legally deprive him of that possession by the erection of hoppers and other fixtures upon the land.
    6th. That the officers of the commonwealth in the management of the Portage Railroad, cannot legally transfer the land of one man, or the possession thereof, to another, except so far as is necessary for the convenient use of said railroad; that the public have no more than a right of way over the land of the owner, and that he cannot legally be deprived of the possession of his land, further than is necessary for the convenient exercise of the rights of way by the public, over his land.

      Charge and answers of the court. — “This is a feigned issue formed for the purpose of trying whether a lateral railroad proposed to be made by the plaintiffs, is necessary and proper, and what damages the defendant ought to have for the making of it over his land.
    “The defendant has asked us to charge on several points of law, which we will take up in their order.
    “1st. We are of opinion that the law of 1840, supplementary to this one of 1832, extends the privilege of making lateral railroads to the whole state — consequently we answer this in the negative.
    “2d. The law is truly stated in this point. The law does not authorize any body but the owners of lands in the vicinity of the public improvements, to make railroads over the intervening lands of others. But the plaintiffs were not bound to prove title as they would in an action of ejectment. If they have satisfied you that they were in possession of the land on which the coalmine is, previous to the commencement of this proceeding, they have sufficiently proved their ownership. (Here the court referred to the evidence of their possession.)
    “ 3d. This is already answered. If the legal title was not out of the commonwealth — that is, if the land was not warranted, then the improvements made by the plaintiffs would prove sufficient title for the piu-poses of this proceeding, if not for all other purposes.
    “ 4th. If you believe the evidence to which I have already referred you, the plaintiffs have shown all the title they were bound to show.
    “ 5th. If the railroad proposed by the plaintiffs would destroy the defendant’s improvements altogether, and render his property wholly worthless, I am of opinion the verdict ought to be for the defendant. But will any suCh consequence result to Shoenberger by the making and using of such a railroad as Mulhollan and Lyon have asked for? It may cause Dr. Shoenberger some inconvenience, but the other party cannot be prevented from coming to market with their coal on account of a shade or two of inconvenience more or less, which it may cause him to suffer. At all events, it is your business to see that he suffers none but what he is paid for. You will make the damages high enough to compensate him for all the injury which the plaintiffs’ railroad is likely to do his property.
    “6th. We answer this point in the affirmative; The public has but a right of way over the lands through which their road passes. But the commonwealth had a right by its officers to determine when and where a connexion with their improvements shall be made by private individuals. If Lyon and Mulhollan can procure a right of way under the statute over the lands of Dr. Shoenberger, and can procure from the officers of the commonwealth the privilege of connecting with the Portage Railroad, at the proposed terminus, then they will have all they desire — certainly all they are entitled to.
    “ These answers dispose of all the law in the case. If you are satisfied from the evidence that the plaintiffs were owners of the coal-mine — that is, were in peaceable and undisturbed possession of it, at the time these proceedings commenced and since, then you will consider whether such a railroad as that asked for, is necessary and useful for the private purposes of the plaintiffs. If this be settled affirmatively, then ascertain what amount of damages will compensate the defendant for the injury which ■ may be done to his property, by the making and using of the railroad.”
    To this charge the defendant excepted.
    The jury found for the plaintiffs, and $ 100 damages for the defendant, who, thereupon, sued out this writ of error.
    Assignment of errors: In the record. — 1. The court erred by refusing to allow the special demurrer of the defendant below to be filed, and by treating it as a nullity.
    2. The court erred by ordering the two last special pleas of the defendant below to be stricken out, and by compelling him to go to trial on the issues formed by the first special plea.

      In the evidence. — 1. The court erred by admitting in evidence the petition, &c., as embraced in the first bill of exceptions.
    2., The court erred by rejecting the evidence proposed to be given by Peter Cassidy as to the George John survey (mentioned in plaintiffs’ proceedings) and the ownership of the coal-mines, spoken of by the plaintiffs’ witnesses, as embraced in the second bill of exceptions.

      In the charge. — 1. The court erred in their answer to the first point put by the counsel of thé defendant below.
    2. The court erred in their answer to the second point put by the counsel of the defendant below.
    . 3. The court erred in their answer to the third point of the defendant’s counsel.
    4. The court erred in their answer to the fourth point of the defendant’s counsel.
    5. The court erred in their answer to the fifth point of the defendant’s counsel.
    6. The court erred in their answer to the sixth point of the defendant’s counsel.
    7. The court erred in the conclusion of their charge, in saying —“If you are satisfied from the evidence that the plaintiffs were owners of the coal-mine, that is, were in peaceable and undisturbed possession of it, at the time these proceedings commenced, and since then, you will consider whether such a railroad as that asked for is necessary and useful for the private purposes of the plaintiffs. If this be settled affirmatively, then ascertain what amount of damages will compensate the defendant for the injury which may be done to his property by the making and using of the railroad.

      W. Forward, with whom was Miles, for plaintiff in error.
    The question submitted was whether the road was necessary and useful, “for the private purposes of the plaintiffs,” thus excluding all inquiry as to its possible utility to any one else.
    They contended that a road of this description was not within the purview or spirit of the act of 1832. A reference to some of its provisions must satisfy any candid mind upon this matter. They will be seen to- be wholly inapplicable to the road in question. The fifth section empowers the applicant or owner of the road to enter upon any land near or adjoining it, and to take therefrom ground, stone, timber, or other materials required in its construction; the rate of compensation to be previously ascertained and settled by the parties, if they can agree, or by arbitrators in the event of their disagreement.
    The authority here granted to an individual to seize the property of' others and convert it to his own use, is precisely that which is usually given to turnpike and canal corporations; and the mode prescribed for ascertaining damages is the same in principle, if not in words, as that which has regulated those corporations. The sixth section makes it the duty of the proprietor of the road to file in the Court of Common Pleas a full statement and account of the expenses incurred in its construction, the amount to be verified by the oaths of one or more persons who shall have had knowledge of the same. On the assumption that private roads were contemplated by the legislature, this requisition would be ludicrous. But the object in view is distinctly expressed, while it fixes conclusively the character of the road. The filing the account in court is. enjoined, “ to the end that the said road, and the privileges appurtenant thereto, may he resumed hy the commonwealth whenever the legislature shall enact the payment to the proprietors of said railroad, their heirs and assigns, of the principal money expended in the construction of the same.”

    The seventh section confers upon the proprietors the right of exacting tolls for the use of the road by the public — a valuable franchise granted as an inducement to their outlay of capital, but expressly limited, as in the case of aggregate road corporations, so as to prevent extortion.
    Every -section and provision of the act is in strict harmony with the regulations above indicated. The grant of power is the same as that'which had been before repeatedly made- to aggregate corporations for kindred purposes : and in conferring this power the legislature were duly heedful of the fifth article of the declaration of rights, which forbids the taking of private property for public use without just compensation, and of the fourth section of the seventh article of the constitution, which declares that “the legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of said property, or give adequate security therefor, before such property shall be taken.”
    It is impossible to read the act without perceiving that the constitutional restrictions upon legislative interference with the rights of private property, were carefully attended to in its passage, and that an intention to authorize the forcible seizure of the property of one man by another for his own private use, cannot be justly imputed to the legislature. In this instance, as in that of aggregate corporations, the object of the legislature was to invite the investment of private capital in a way that might, be subservient to public accommodation. The remuneration offered is the right to exact tolls and enjoyment of the other valuable and exclusive immunities prescribed in the act. Enactments conferring the franchise of tolls for passage over a private road, which nobody but the owner can use, and reserving to the commonwealth the power to resume such private road upon reimbursing the cost of its construction, would seem to be preposterous. But they are sensible and provident in cases of roads of a public nature, and being expressly applicable to all the roads made under the act, they must be regarded as fixing its construction.
    An interpretation of the act which would authorize the taking of defendant’s property “for the private purposes of the plaintiff,” as charged by the court below, appears to me to bring it into direct conflict with the constitution. The reasons for this opinion will be briefly and most respectfully submitted to the consideration of the court.
    One of the purposes of a written constitution, is a clear, permanent, and effectual security to private property against the invasions of power. The safeguards provided in our own constitution, are as comprehensive as they are emphatic. The first section of the ninth article, declares “the right of acquiring,possessing, and protecting property,” to be “inherent and indefeasible;” thus denying and excluding the exercise of. a right of eminent domain by the legislature, except in the cases provided for in the constitution itself. One of those cases is found in the tenth section of the same article which forbids the taking of “any man’s property for public use without the consent of his representatives, and without just compensation being made.”
    The prohibitory form of expression used here might be supposed to warrant the idea, that the denial of power was intended to be exceptional, and that private property, except .in the instance given, is still left to the arbitrary will of the legislature. But such an interpretation would be inconsistent with the first section, which declares the right of property to be “ inherent and indefeasible,” and not less so with the last section, which is in those words: “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate.”
    The right of private property, formally asserted in this article to be “inherent and indefeasible,” unless required for public use,, on payment of its value to the owner, is one of the “things expressly excepted out of the general powers of government,” and for ever placed beyond the reach of the legislature: 2 Kent’s Com. 340; Taylor v. Porter, 4 Hill, 140; Scott v. Pittsburg, 1 Barr, 309; Wilkinson v. Leland, 2 Peters, 657.
    They argued, First, that the act of 1832 gave a right, not merely to appropriate the site of the roads, but to enter on lands adjoining, or near it, by whomsoever owned, and “take stone, gravel, timber, and other materials,” for building the road. The six per cent, reservation can hardly be said, in the case of a road for “ the private purposes” of the party, to cover the extraordinary privilege here given. But the privilege is a necessary part of the system, for no instance will be found in which the stone, gravel, and other materials, on the site of the road, would be sufficient for its construction; and without the privilege of entering upon other lands for a supply, the system would be a dead letter.
    The power to subject private property in the neighbourhood to the uses of the road, can only be referred to the right of eminent domain. Such, we are to presume, was the view of the legislature; and if the. roads contemplated by the act were not of a public nature, it must be unconstitutional.

      Second. The act of 1832 and its supplements are in pari materid, and to be regarded as a whole. The act of March 28,1840 (Dunlop, 798), makes it lawful for any person or incorporated company to construct railroads with double or single tracks, under the surface, over intervening lands, &c., to or from any mines of iron, coal, &c., and connecting with any railroad belonging to an individual or company, &c.
    The act of May 5, 1841, “ extends the provisions of the act of 1832, and the supplements thereto, to the construction of canals not exceeding in width the canals of the commonwealth.”
    The act of April 24, 1843, sec. 10 (Dunlop, 903), enacts in substance, that when the owners of any railroad possess the landing where it joins any canal or other navigation, and any lateral railroad shall be constructed to connect with such railroad, and the owners of the latter shall refuse to the lateral raiboad the use of the landing upon payment of a suitable compensation; a jury of five men shall be summoned, who, if they find the capacity of the landing sufficient to accommodate both roads, shall mark off a portion of land to be allotted to the main railroad, and “ fix upon a compensation suitable therefor, either in fee simple or as an .annual rent or price per ton, for the use of the sameand if the report of the viewers be approved by the court, they shall direct the landing to be opened for the use of the public, &c.
    Looking to these several acts as constituting an entire system, it is fair to suppose that they were dictated by the same general views of public policy, and that the authority to provide for the construction of lateral railroads and canals, "and securing of landings, were deemed to be referable to the same grant of power to the legislature. It is already shown that the reservation of six per cent, for roads, in patents, cannot, by any proper construction, meet the provisions of the act of 1832; but when those provisions are extended to subterranean roads and to canals, and when, especially, the seizure of landings to be held in fee simple, or at a fixed rent, is considered, it seems utterly impossible to defend this scheme of forcibly appropriating private property to private purposes upon any other ground or pretext than that of the right of eminent domain. It results of necessity that the legislature had in view works of a strictly public nature, or that the whole system, applied as in this case, is an assault upon private rights and forbidden by the constitution.
    The connexion of private lateral railroads, made under the authority of the act of 1832 and its supplements, with the railroad and navigable waters of the commonwealth, will be found beset with embarrassments of a very serious character. In the case of Cooper v. Smith, 9 S. & R». 32, Judge Duncan says: “ There is no right, custom, or prescription in Pennsylvania, by which one man can land or receive freight on another’s freehold on the banks of a navigable river, without his consent, even though it be on a public highway.” “It would be a violation of the constitution to deprive the owner of the soil of this right, and the legislature have always carefully guarded against such construction by the most explicit declarations.” In Chess v. Manown, 8 Watts, 219, the same principle was affirmed by the chief justice.
    Our system of exclusive property, guarded as it is by stern and formal restrictions of the right of eminent domain, may have its inconveniences. We find large bodies of land in the hands of men who bought for purposes of speculation, and who refuse to sell but at enormous profits; and thus the settlement of the country and developement of its resources are greatly retarded. Towns, and even cities, are environed by masses of vacant property, owned by persons who will neither sell nor build, whereby the extension of manufactures and commerce, and the countless interests to be sub-served thereby, are grievously frustrated. But these evils, if such they be, are inherent in our system of exclusive property, and until the people choose to remodel the -system, they cannot be reached by the legislature. But were it otherwise, it is questionable whether the remedy supposed to be provided in this instance would not be productive of greater mischiefs than any it is likely to redress. Lands bordering on navigable waters, and other commercial highways, were purchased in many instances at enormous prices, with a view to the advantages of their location. Lands more remote were bought without any such advantage, and at low prices. The effect of the lateral road system, as expounded in this case, will be to sink the value of purchases made, as in the instances first mentioned, and turn the latter into gainful speculations. But a worse consequence than this may be apprehended. Purchases will be made by speculators with no other view than that of forcing lateral railroads through intervening lands, and, this done, of selling out at exorbitant profits.
    Unproductive property in large masses may be withheld from sale for purposes of extortion, but it cannot be the interest of proprietors to withhold it for ever. Experience shows that all such schemes of speculation are attended with peril; and we may, at all events, rely on the usual vicissitudes of fortune, and the act for distributing intestates’ estates, for a corrective of the evils complained of.

      Orbison and King, contó,
    cited Harvey v. Thomas, 10 Watts, 65; Harvey v. Lloyd, 8 Barr, 331; United States v. Blight; Act of 7th of June, 1841, Dunlop’s Dig. 847.

      June 12.
   Burnside, J.

The point was made in Harvey v. Lloyd, 3 Barr, 340, that the act of the 5th of May, 1832, Pamph. Laws, 581, Dunlop, 487, regulating lateral railroads, was unconstitutional. This court not only held the act constitutional, but wise and happily adapted to bring on the public works a large amount of business, cheapen the article of coal, which is so essential to the manufactures and commerce of the country, and to every family. The argument that it takes one man’s land and gives it to another, is untrue, and a perfect fallacy. It gives only right of way, for which an equivalent is to be paid. It is predicated on the golden rule, that you do to others as you would wish others to do unto you. It is in accordance with, and carrying out the wise provisions of the founder of this state, who gave to every grant six per cent, for roads and highways, which the grantee holds in trust for the public. The reasons assigned on the record of the proceedings to obtain the road, are determined in Harvey v. Lloyd; nor are the exceptions to evidence supported. They have been but feebly urged.

The material question seriously discussed will be considered. It is contended that the act of 1832, before recited, does not extend to the county of Blair, and hence the court had no jurisdiction. It is true that the twelfth section of the act of 1832, regulating lateral railroads (Dunlop, 490), restricts its operation to the counties of Lycoming, Luzerne, Schuylkill, and Northumberland. But the act of 28th of March, 1840 (Pamph. Laws, 176 ; Dunlop, 797, star page), in its first section, extends the provisions of the act of 1832 to the counties of Northampton, Lehigh, and Cambria, and also to the owner or owners of lands, mills, quarries, coal or other mines, lime-kilns, or other real estate in the vicinity of any railroad, canal, or slack-water navigation, made or to be made hereafter, by any company, individuals, or by the state of Pennsylvania. The Portage Railroad was made and completed by the state, before the year 1840, and the coal-mines to which the lateral road is desired to be made, are within the distance to the road which the act allows.

It is urged in this court, that the further supplement to the original act of 1832, passed the 12th day of February, 1842 (Pamph. Laws, 18), which extends the provisions of the act of 1832 to the counties of Tioga and Columbia (and is an act of supererogation), reported and enacted without proper examination of the existing law, as there are no words in the act of 1842 touching the other parts of the state, is in force and not repealed. The supplement of 1842 can only be said to be accumulative in the counties of Tioga and Columbia, and has no relation to the other counties of the state.

There is but one other assignment of error worthy of notice. It is, that the court instructed the jury that if they were satisfied from the evidence, that the plaintiffs were owners of the coalmines, that is, were in the peaceable and undisputed possession, at the time the proceedings commenced and since, then they would consider whether such a railroad as that applied for, is necessary and useful for the private purposes of the plaintiffs. If this be settled affirmatively, then ascertain what amount of damages will compensate the defendant for the injury which may be done to his property by the making and using the railroad. It is contended on the part of the plaintiff in error, that the act of 1832 only gives the right to make a lateral l’ailroad to owners who have a legal title, and that title should be in evidence, and this omission is fatal to the whole proceeding. The original petition to the court stated that they were the owners. They gave evidence that they were in possession of the coal-bank and land adjacent, and had built a square log-house 32 by 20, two stories high, and finished in 1846, and in actual occupation from completion. This was a good, equitable title, subject to all the incidents of a legal estate, and gave the owners a right to build a lateral railroad, under the act of 1832, to their coal-mines.

Judgment affirmed.