author: GibsoN, C. J. HustoN, J.

text:
    ASHCOM surviving administrator of MOORE against SMITH.
    IN ERROR.
    'Where land is sold by public vendue, and the advertisement described the tract as •containing 300 acres, and upon the day of sale, doubts being expressed as to the quantity, tile vendor said “ he would sell it at 300 acres, more or less, he would sell it by the acre, and it should be-measured and it is cried and sold at so much per acre, the vendee is bound to take it, although upon a survey it is subsequently ascertained that there is an excess of forty-five acres.
    If the vendee refuse to carry the sale into execution, and the vendor makes a resale at a less price, the vendee is liable in damages to the vendor for the loss sustained.
    .And where the vendor has acted bona fide, and with reasonable care, the measure of damages is the difference of price on the re-sale. But his conduct may be so grossly improperas to cast-a loss from it on himself.
    Where each of the parties to a contract treat a matter as doubtful, and is content to take the risk of its turning out in a particular way, Chancery will certainly not relieve against the event.
    ‘The object of an advertisement for a public sale of land, is to give notice of the fact that a sale is intended, to attract bidders, leaving the terms to be settled on the ground. The conditions of sale are superadded as a distinct matter, by the auctioneer, and published by parole or writing ¡ and will control the advertise•ment.
    Error to the Court of Common pleas of Bedford county.
    The plaintiff in error, who was also plaintiff below, brought suit against the defendant to recover the difference between the amount .which had been bid by him for the real estate of John Moore, deceased, at a public vendue held by Barclay and ,Jlshcom, administrators with the will annexed of the said Moore, and the sum for which at a subsequent sale they sold it to another, after the defendant had refused to'carry the contract into execution. The defendant resisted the recovery on the ground that the land sold had been advertised as “300 acres of patented land,” and as he alleged he had bought by the acre, that quantity only, he contended he was not bound to take 345 acres and 35 perches, •the quantity which the tract, by a survey subsequently made, was ascertained‘to contain. And as there had been a mistake as to this excess, he insisted that he was entitled to be relieved from his contract on this ground. Much evidence was given on both sides as to this point.
    The land sold was contained in two patents to John Moore, the one for 99 acres and 11 perches, the other for 129 acres and 103 perches: of which it seemed that John Moore in his life time had sold 21 acres, off the 99 acre tract

      On the 18th February, 1825, the administrators, Barclay and Ashcom, in pursuance of the power vested in them by the will of Moore, advertised in a newspaper published- in Redford, the sale of this land. So much of the advertisement as is material was as follows:
    “Will be sold on the 14th of March, 1825, the mansion place containing 300 acres of patented land, and the usual allowance for roads, &c. One third of the purchase money in hand. Should the highest bidder fail to comply with his bid, the sale to be returned to the next highest bidder if he choose to take it. The residue in three equal annual payments without interest, to be secured by bonds and' mortgage.”
    It was proved that at the time of the sale, and before it commenced, the quantity contained in the tract, was the subject of conversation, that Mr. James Piper, a surveyor, said that he had run some of the lines or saw them run, and that he would war-pant it to hold out 300 acres, and that Mr. Barclay then said “they would sell it at 300 acres, more or less ; and it should be measured ; and that they would sell it by the acre.” That it was put up and the bidding commenced with spirit, and after some iirpe it was struck down to Smith, the defendant, at $18 per acre. Many witnesses were examined to prove what had taken place at the sale, who proved that it was generally understood and supposed by the bidders, that the tract would contain 300 acres., exclusive of the land which had been sold off; although the quantity called for in the patents was less, and that it was taken to be 300 acres “by those who were making their calculations, and bidding.” All the witnesses agreed that it was cried by the acre.

      Ashcom, the plaintiff, having executed a release to George Moore and others, and paid into Court a sum sufficient to cover the costs in • the Common Pleas, and Supreme Court, was rer ceived as a witness, and a bill of exceptions to his admission seabed.
    He testified that on the morning of the sale the defendant had taken him to one side, and asked him “how he intended to sell this land?” that he told him, “by the acre, we dont know what quantity there is, and therefore we will have to get it surveyed,” that he had no doubt that it would hold out 300 acres, although affer deducting the land which had been sold off, the patent called for 279 or 280 acres. The witness also stated that he was mistaken in the quantity of land, and he believed that every' man there was mistaken.
    It was in proof that after the property was struck off to Smithy and for some time after, before a survey was made, he expressed great satisfaction with his bargain.

      A few days after the sale the defendant called on Mr. Barclay and offered to make the first payment on account of his purchase, according to the quantity called for by the patent. Barclay said be was not quite ready for him; that the land would have to be surveyed to ascertain the number of acres, and that he would then get his deed; that it was then written, and when the survey was made the blanks would be filled up.
    Two surveyors were then proposed to the defendant by Mr. Barclay, either of whom should make the survey. But whether the defendant agreed to the selection of a surveyor, and acquiesced in making a survey, or insisted on having the land according to the patent, and advertisement, and that no survey should be made, were points about which conflicting evidence was given. It'seemed however that Smith agreed to be present when the survey was made.
    Some time after a survey was made by Mr. Patterson one of •the persons who had been named to make it. The defendant was present. The lines were found to be longer than the patent called for. The line going up the mountain called for fifty-one and one half perches, at which the surveyor stopped, but Mr. George Moore, a son of the testator, said, the corner was higher up ; and they run out so as to make this line seventy-two perches. ,It was in proof that the orchard was up to the mountain line. This survey ascertained the quantity to be 376 acres and 41 perches, strict measure, and 354 acres and 162 perches with the allowance. Smith appeared dissatisfied when the land was extended up the mountain. The land above 51! perches was of little value.
    O.n the 30th March, 1825, the administrators executed a deed to the defendant, according to Patterson’s survey for 376 acres 41 perches, which they tendered to him, but he refused it and objected to the quantity of the land, and that if he took it he would be compelled to pay more money than he expected. On the 11th April following, the administrators served the defendant with a notice in writing, that “ If he did not before the 16th day of May next, come forward and comply with his contract for the purchase of th,e mansion place of the late John Moore, Esq. deceased, by paying the one-third of the purchase money, and giving bond and mortgage for the residue, according to the terms of his purchase, made on the 14th day of March last, they would on the said sixteenth day of May, expose the said premises again at public sale, and bring a suit or suits against him for the difference, if any there should .be, in the sales, and also for the other damages and losses sustained by the estate of the said John Moore, by his ¡refusal to comply with said contract. ”

      And on the 29th of April they advertised the land to be sold on the 16th of May.
    After this another survey was made by the procurement of the administrators, by which the tract was made to contain 345 acres and 35 perches, and the allowance, and on the 18th June the administrators executed another deed to the defendant for 345 acres and 35 perches, according to this survejq which on the same day they tendered to him and served him with the following notice:
    “Sir — Tate notice that on the 20th day of June inst. unless before that day you comply with your contract for the purchase of the mansion place of John Moore, Esq., deceased, made on the 14th day of May last, agreeably to the terms of the said purchase; the undersigned administrators with the will annexed of the said John Moore, deceased, will again expose to sale by public vendue on the premises, the said mansion place, and will bring a suit against you for damages for non-compliance'with the said contract, and for whatever difference there may be between the two,sales.-”

      Mr. Smith refused to accept this as he had done the first deed tendered- to him. The land was frequently afterwards exposed to sale by the administrators, and was finally sold by public ven-due on the 5th of April, 1826, to Jacob Barndollar, at $10 26 per acre.
    The Court charged the jury among other things:
    “Our first inquiry will be, how was the land sold? - Is it not manifest it was sold by the acre? and is it not clear that the parties estimated the quantity at 300 acres, a little more or less. The effect of the words ‘ more or less’ has not been well fixed by judicial decisions. In Pennsylvania, where the contract is consummated by delivery and acceptance of a deed on the one side, and the giving bond and mortgage on the other; the vendee will hold all the surplus land within the boundaries, without paying for it — and generally he will not get any deductions, because he does not get the estimated quantity.
    “While the contract is in 'fieri, and when there is to be a survey, the actual, quantity is to be paid for, and the actual quantity will be the true'contract of the parties. In Frederick v. Campbell, Judge Duncan says, ‘more or less’in a conveyance sometimes extends to a small difference, sometimes leaves the. quantity indeterminate. In Virginia, ‘more or less’ is restricted to a reasonable or usual allowance for small errors in surveys and for variations in instruments. •.
    “It has been decided in England that the words ‘ more or less’ ought only to clear a small deficiency when the contract rests in

      fieri. Here the patent calls for 298 acres and 114 perches, 20 acres or thereabouts had been sold off. The patent quantity left was about 279 acres. Piper had given notice-that the lines were longer on the ground than they purported to be, and that he was very confident there were 300 acres Or a little more. Morrison swears that Mr. Barclay, one of the administrators, then said, we will sell it at 300 acres more or less, it should be measured and they would sell it by the acre. You have heard the evidence as to the admeasurement, that there was a large surplus. The first deed tendered for 376 acres, 4Í perches, and the second fox” 345 acres, 35 perches. The plaintiffs themselves have shown by their own conduct, that ¡Smith was not bound to accept the first deed. Was he bound to accept the second? This matter will depend on a number of considerations. It is a general principle that agreements relating to real or personal estate, if founded in mistake, will for that reason be set aside. Were the parties mistaken in the quantity? You have heard the evidence of Mr. Jlshcom, one of the administrators; he swears that he was mistaken in the quantity, and he adds that he believes every man there was mistaken. He further swears that Mr. Smith, when the first deed was tendered, said there was too much land, and that he expressed no dissatisfaction unjtil after the survey was made. If there was a clear mistake in the quantity, either party is entitled to be relieved from that error. Here no agreement had been made. It was a public sale, and we, think, if you are satisfied', that the defendant believed, and he had reason to believe from-the advertisements and the information given by the sellers, that the tract only contained 300 acres, or a little ‘ more or less,” he was not bound to take the 345 acres. The difference was $814 75, a large sum to a farmer — a sum that might on a mortgage, sell the best plantation in the country.'”
    A verdict having passed for the defendant, the plaintiff brought this writ of error and assigned for error,
    “1. That the Court erred in. that part of the charge, where they instruct the jury, that if they were satisfied that the defendant believed, and had reason to believe, from the advertisements, and the information given by the sellers, that the tract only contained 300 acres or a little 4 more or less,’ he was not bound to take 345 acres.
    <c2. The Court erred by submitting it, under the facts disclosed in this case to the jury, as a question of fact for the jury to determine whether the defendant was mistaken in the quantity of land contained in the tract sold, with instruction that if he were, he was not bound to comply with: the contract.
    ¿<3. Also as to the meaning of the words ‘ more or less.’ ”

      Barclay for the plaintiff in error
    Argued that the Court erred in charging the jury,- that if the defendant believed that the tract contained 300 acres, or a little' more or less, he was not bound to take 346 acres.
    Where the parties treat upon the basis, that the fact which is-the Subject of the agreement, is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations assented to, the contract will be valid notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party, which would affect any other contract. Perkins v. Gay, S Serg. & Bawle 327.
    The mere circumstance of the advertisement describing the' tract of land as containing 300 acres, is not of itself sufficient to prevent a chancellor from compelling the execution of the contract, although it turned out that there was an excess of 45 acres1 ascertained by the subsequent survey. Boar y.Moore’s administrators, 1 Serg. & Bawle, 166.
    It was not pretended that there was any fault in the administrator. He had used no artifice, nor made any representation to induce the defendant to purchase, or believe there was not a greater quantity than SOO acres in the tract.
    Where the words “ more or less ” are used they show the understanding of the parties to be that the contract is not to be affected by a deficiency, or surplus of quantity, and in such case, chancery would not interfere. Glen v. Glen, 4 Serg. & Bawle, 4SS. Large v. Penn, 6 Serg, & Bawle, 4S8.
    Where a sale of land is by the acre, the right of ascertaining, the quantity by a survey exists, whether reserved or not, and if no time be limited, it may be. done at any time before the business is closed.' Bailey v. Snyder’s administrators, 3 Serg. & Bawle, 160.' ■

      Burd for the defendant in error
    Contended that the contract was by parole and executory; and if equity would not decree a specific performance of the contact, the plaintiff should not be permitted to recover in-this suit,, which is an equitable action: and he contended that the performance of the contract would not have been decreed.
    The plaintiff before he asks equity must do equity. By his advertisement, and a reference to the patents he induced the belief that the tract of land sold contained the specific quantity of 300 acres. This was not mere description, but substance, upon which every bidder made his calculations, and measured the extent to which in prudence he could go. As to this quantity there was a plain mistake, the plaintiff himself stated that he had been mistaken, and that every bidder on the ground was mistaken as to the quantity. The mistake was mutual, and when a contract is made upon a mistake, equity will not interfere to enforce it. Sugd. on Ven. 22. 2 Hen. & Mum. 174. Sugd. on Ven. 167.
    So where a vendor gives a false description, equity will not decree-a performance of the contract. Sugd. 211, M’Ferran v. Taylor, 3 Crunch. 270.
    In the case of Bailey y. Snyder's administrator, the contract was executed, and equity could not relieve in such place, unless positive fraud was established, but in the case at bar, the contract Ivas in fieri, and the plaintiff called on equity to support it.
    He contended, that the advertisement of the administrators as to the quantity of the land, amounted to an assertion on their part which they were bound to make good. Frederick v« Cambell, 14 Serg. & Rawle, 293. 2 Sell. & Be/. 554.

      Miles in reply*
    The parol testimony is to be taken in connection with the ad-Vei’tisement. Taking all the evidence together, it appears that although it was supposed there were but 300 acres in the tract sold, the quantity was considered uncertain ; and it was agreed that this uncertainty should be brought to a certainty by an actual survey. The question then comes to this, whether the circumstance of the ascertained excess of forty-five acres, afforded evidence per se of such mistake, that the defendant had a right on this ground to rescind the contract. There was no suppression of the truth, no suggestion of--a falsehood, but both parties were equally ignorant of the subject of the contract, and both treated of it as uncertain; as the subject of conjecture; and to be reduced to certainty in future. In such case chancery will not interpose to relieve a party from his contract. 1 Mad. Chan. 76.

    Here too the parties had equal means of information as to the subject-matter of the contract. 1 Call. 320.
    Should the doctrine laid down by the Court prevail, no contract which is not specifically certain, would be permitted to stand.
    The quantity of the land was a mere matter of description; the substance and essence of the agreement was that the administrators should sell and convey, and the defendant should buy the land, and pay so much for every acre it contained. Perhaps where the quantity of the excess or deficiency was so great as to ¡.fiord internal evidence of a Very gross mistake, equity might relieve, but that was not the case here, the excess was- not such as to produce evidence of serious misapprehension.
   The opinion of the Court was delivered by

GibsoN, C. J.

The principle on which the cause- was put to'the jury, was that of mistake, for which, they were instructed,, that the contract ought not to be enforced. The cases on which reliance is placed for this, are inapplicable. The difference between a deficit for which an abatement is claimed where the land has been, sold for a round sum, and an excess, for which a recision of the contract is claimed where it has been sold by the acre, is plain and palpable. In the one case, the vendee is a loser to the extent of the difference; and in the other he gets value for whatever he has to pay. Yet our reports furnish no instance of an abatement, even where the difference was considerable; or where the principle has been sanctioned further than to admit that there may be extreme cases in which chancery would infer some great misapprehension, and-ón that ground relax the rules of law. Boar v. McCormick, 1 Serg. & Rawle, 168. Equity will indeed relieve against a plain mistake, as well as against misrepresentation and fraud.. Rutean mistake be-alleged in a matter which was considered as doubtful? and treated- accordingly ? Where each of the parties is content to take the risk of its turning out in a particular way, chancery will certainly not relieve against the event. Reference to a train of authorities for this, is given in Perkins v. Gay, 3 Serg. & Rawle, 331; and I shall therefore bring into view only the case of Smith v. Evans, 6 Bin. 102, in which land was sold by the acre, but according to an estimate of the quantity which was held to be conclusive, though it appeared by subsequent measurement that there was a deficit of eighty-eight acres ; the Chief Justice remarking that the quantity was not an essential part of the contract. What, then, is the case here? -The advertisement in the True American, by which the premises were, described as three hundred acres of patented land, was no- part-of. the conditions of the sale, which, had they been in writing, would have controlled all private representations. The -office ,sof an advertisement, both here and England, is to give notice of the fact that a sale is. intended, and the object of the description is to attract bidders, leaving the terms to be settled on the ground. Even were the conditions published beforehand, the-vendor would.not be precluded from changing them, as he may sell.on his-own terms,, or not at all. The conditions- are therefore superadded as a distinct matter by the auctioneer, and published by parol or in writing. Where indeed the advertisement is referred to as containing the conditions, it will no doubt, answer the purpose: but it is not pretended here that the land was sold by the advertisement, or in gross, or as containing a definite quantity, or any other way than by the acre. The witnesses substantially agree as to the representation of the vendors, although they use different, terms,; such as “ the calculation was 300 acres — supposed to be 300 acres, offered at 300 acres — admitted to be 300 acres and upwards— .understood to be about 300 acres and upwards — 300 acres and probably exceeding it: from which it is clear that the vendors' .sold b,y an estimate,-.without-pledging themselves for its accuracy.

This is put beyond a doubt by the ,faet that the vendee, who was pleased-.with his bargain, appointed a day to pay part of the price, and.eoncert measures to 'havethe quantity ascertained by a survey. "Why then should he be released from the contract, if there were no misrepresentation or other want of fair dealing? The excess is not even unusual, being forty-five acres, or fifteen' per. cent.; and as to the quantity of the rough land being greater' in proportion than was anticipated, that was a matter against which, having the means of information in 'his power, he was bound to take-precautions, and cannot now object.

Where the vendor has acted bona fide and with reasónáble care, •the measure of damages is the difference of price on the re-sale. But his,conduct may be so grossly improper as to cast a loss from it on himself ; as where-the re-sale is wantonly delayed while the land is notoriously falling in price, or the business is managed neg-r ligently: these and many other circumstances may be properly left to the jury. But mere unskilfulness without ma'lafides-, or even negligence, unless.it be plain and palpable,-will not be sufficient to charge him. The vendee ought not to east the responsibility of - the re-sale on the vendor, and by his own -wrongful act charge any one else with the consequences. Having-thought proper to render a second sale necessary., it must be at his own risk. It seems to me these principles must rule the -cause, and that the court ought so to have directed the jury.

HustoN, J.

From the manner in which this cause comes before us I have had some doubts as to the .correctness of the opinion of the Court; but on full reflection, I can see no .error — at least none that-the plaintiff in error can .complain of.

There exists in the cause many matters which seem not to .have been relied on below, and were not pressed here, and which, as the cause goes back, ought not to bo considered as unworthy of reflection.

It would seem no written conditions of sale were put up at <he time Smith bid ; but the printed advertisement was in evi-dencie, and. described the property as “the mansion place-, e.om taining 3Ó0 acres of patented land, with the usual allowance, &c. one third of purchase money in hand, &c. Should the highest bidder fail to comply with his bid, the sale to be returned to the next highest bidder if he choose to take it, the residue in three equal yearly payments, without interest, to be secured by bonds and mortgage. ”

Where no conditions of sale are put up, and a description and conditions are in the advertisement, these may be considered as the conditions ; and these cannot be contradicted, or varied, by parol at the time of the éale, as it would introduce fraud and confusion. Sugd.on Ven. 212.

But it seems to have been proved, and not denied, that after the bid of 14 dollars per acre, there was no real bidder but Smith, the defendant, it was raised on him by a puffer or puffers instigated by those or one of those interested. This alone would seem to have been considered as a good reason why the real bidder is not bound. Sugd, 16 & seq.

The same writer tells us the usual conditions “that if the purchaser fail to comply with the conditions, the deposit, shall bo forfeited, and the owners be at liberty to re-sell, and the deficiency and all charges made good by the defaulter.” If this latter clause ip important it was not a part of the written or parol terms of this sale.

Public sales at auction, as well as private sales are precisely what the contract of the parties makes them; and I know of no authority for sajnng, it is an universal rule of all auctions, that the bidder failing to comply, shall he liable for the difference on a re-sale, if no conditions are put up- — much less for saying that when written terms of sale, different from this are put up, this one shall be implied, or understood to be at all binding, There is manifest unfairness in publishing terms of sale, and a penalty for not complying, and after the sale deserting the written terms, and attempting to bind the party by different and greatly more penal conditions.

The effect of the words more or less, in conditions of sale, or articles of agreement, have been before this Court more than Once — ¡and the decisions are not precisely the same — at least it requires some ingenuity to roconcile them, The last case, on this subject, to me appears more consonant to the general understanding of the world, as well as sound principles of law than so me of those which preceded it. In point of fact, when land is sold, and bought for the purpose of cultivation, the price always depends upon and is regulated by the quantity — and a learned judge or illiterate layman, in making a bar-, gain, either as buyer or seller, equally know that 150 acres of land is better that 100 acres, all -other things being equal, and they know that quantity is not mere description, but as much ■the substance and consideration on the one side, as the quantity .of money is on the other side.

This matter would seem to have been considered by the counsel in argument differently in this case from the manner in which it strikes me. It has been assumed that there were 346 acres and allowance, at least. There may have been and probably was evidence on this subject not before this Court, but on the evidence I see no reason for saying that this is the quantity: — In re-surveying up the mountain, as I understand it, the patent called for 51 perches, and the surveyor, without marks or corners corresponding to the patent, went on, making this line 72 perches. The reason given for this, that one corner of the orchard- fence went so far, is not satisfactory. Many an one has extended his fence beyond his line: — and on a sale of land held by an old patent, it cannot be seriously contended, that the purchaser is bound to take and pay for mountain land, not patented — perhaps to much of which there is no right.

Suppose this quantity correct, what was the contract of the parties? Three hundred acres, more or less is sold by the acre, and the price per acre multiplied by 300 gives the aggregate price — and that overplus or deficiency is disregarded — thus 300 acres more or less at @10 per acre is @3000. Or it may be 300 acres, more or less, to be sold by the acre, and the land to be measured, and the purchaser to pay for each acre it contains, and in that way the tract in question by the present measurement, would, at 10 dollars per acre amount to 3450 dollars.

Morrison would seem to have understood it in the manner first Stated — “It was before it was cried, that it was fixed at 300 acres, more or less:- — some had been sold off and that gave rise to the doubt that there was not 300 acres. The calculation was made at S00 acres.”

Piper says expressly “I understood it was selling at 300 acres fmore or less’ and so is the printed advertisement explicitly.” The first point then to be settled is, what was the contract? Did Smith understand it correctly or not, for he álways-insisted he was to pay for only 300 acres. Could the seller vary the terms from his written advertisement? and did he vary them so as to be understood by the defendant? if there was a misunderstanding is the defendant liable to a contract which he never understood! While all is executory can any Court compel him to comply with a contract to which he never agreed — or to pay for not complying?

I recognize fully the distinction taken by the Court, between a contract executed by accepting the deed, and giving bonds ; and ■g contract in no part executed, and the terms of which were not agreed on, about which there was a material dispute, and in suck case chancery never decrees a specific performance. It will not be contended the plaintiffs could have recovered at law.

I then think the judge was right in leaving it to the jury to decide whether there was a mistake in quantity, and saying, “if there was, either party would be relieved-.-here no agreement was made. It was a public sale, and we think that if you are satisfied that the defendant believed, and had reason to believe from the advertisements, and the information given by the sellers, that the tract only contained .300 acres, or a little more or less, he was not bound to take 345 acres, the difference is $814 75 — a large sum to a farmer, a sum that might on a mortgage sell the best plantation in the eounty.” I also think he might have gone further, and held the plaintiffs to their printed advertisement, or at least said that the defendant was not liable beyond it. That if puffing, false bidding, was used by the vendors, or those in that interest, the defendant was not bound. This might have been very different if the deed had been accepted and bonds given ; and the party had asked to be relieved, then the defendant could not say there was no contract — before this, and when no papers were signed, nothing precisely settled, I know of no principle, nor case, which makes a man liable, because in the course of a contract he thinks he and the other party understood each other, and because when they come to reduee it to writing he discovers that they did not understand each other, and then withdraws.

It will be observed that I have laid the testimony of Jlshcom, the plaintiff, out of view. As the cause goes back I would refer to Patton’s adm’rs. v. Craig’s adm’r. 7 Serg. & Rawle, 116. I suppose the judge had that case in view when he admitted Jlsh-r coni. But they are very different. There the contract, loan, &c., was by Craig in his life-time to Patton, and the administrators were but trustees, without any interest — here the transaction was by Jlshcom,, himself, with the defendant, and if there be a loss to the estate; it may be there is no one liable, and this might be so if the heir caused the difficulty, or. Ashcom may be liable, or the defendant.' This plaintiff is then as much interested as any other plaintiff in any suit, and we have not yet decided that every plaintiff may, by paying in the costs, be a witness. In the case cited, 7 Serg. & Rawle, 124, the late Chief Justice says — “ at the commencement of the action he was a bare trustee, and there is no suggestion that he was in any danger of being involved in a devastavit. If any thing of that kind had appeared he would have been interested.

Judgment reversed and venire ds novo awarded.


source: Caselaw Access Project

author: Rogers, J

license: Public Domain

text:
    HARTMAN against STAHL.
    IN ERROR.
    When under the act of the 20th March, 1810, “regulating1 arbitrations,” one of several defendants enters an appeal from the award of arbitrators, takes .the oath, and enters into a recognizance with bail in his own name only, it is but an appeal for one, and amounts to a severance, as much as if the co-defendants had come into Court and disclaimed the appeal.
    Nor will an amendment be permitted, so as to make it an appeal for all the defendants, upon parol testimony that it was the intention to appeal for all.

    By the return of the sheriff of a sale of land, and the acknowledgment of the deed, the title to the land is vested in the purchaser, and the sheriff becomes fixed for the amount bid. ,
    The acknowledgment of the sheriff’s deed is not conclusive evidence of delivery, but taken in connection with the fact of possession of the land being taken by the vendee, and continued, it is a strong proof of it.
    When land has been sold upon execution by a sheriff who returned the sale and acknowledged the deed, but retained it as security for the payment of a part of the purchase money, and the vendee took possession of the land which was after-wards purchased as his property at sheriff’s sale, and the second vendee brought an ejectment against one who did not show tide, and on the trial of the ejectment the plaintiff paid the balance due the sheriff, (who was then out of office) and obtained the deed, which he gave in evidence, it was held that the plaintiff was entitled to recover.
    By the payment of a large portion of the purchase money, and the delivery of possession, the sheriff’s vendee1-requires an interest in the land, which, although it may not amount to a legal title, is subject to execution and sale, under which possession may be recovered from one who shews no title.
    In ejectment by a sheriff’s vendee, a judgment in favor of the vendee, against the defendant, as whose property the land was sold, is pertinent testimony, because it shows the manner in which the sheriff was paid for the land.
    Writ of Error to the Court of Common Pleas of Franklin county..
    In that Court it was an action of ejectment, by Joseph Stahl, against Elizabeth Hartman, Mary Brokins and William Ho-sack, for a tract of land claimed by the plaintiff under a sheriff’s sale. The'cause was arbitrated under the act of assembly of the 20th March, 1810, and an award having been made in favor of the plaintiff, Elizabeth Hartman, one of the defendants only entered an appeal, took the oath required, and entered into the recognizance to prosecute the appeal with effect, &c.
    The counsel for the defendants moved the Court “to amend the appeal so as to make Mary Brokins a party thereto, and that the jury-may be sworn between the plaintiff, and Mary Brokins and Elizabeth Hartman.” And on motion the following evidence was given.

      u James Dunlop and Elizabeth Hartman, upon their solemn oath, duly administered, did depose and say that the appeal in this case was intended for the benefit of Elizabeth Hartman and Mary Brokins, and was then considered as an appeal for both. The recognizance was not read; or but carelessly looked over,' and was drawn by the clerk without any instructions. Roth defendants alluded to, claim under the same title, and make the same de-fence. It was thought at the time of appeal that the appeal was for both, and both of them have attended the triaL ' Mary JVrok-ins was not in at the time of the appeal. Miss Hartman had procured some one to be security on the appeal,- and it was signed-by deponents in haste, and at the time of engagement in other business.”

      “Jasper E. Brady, Esq. being duly sworn, according to law,* doth depose and say that he drew up the recognizance taken on the appeal in this case. That to the best of bis knowledge nothing was said of Mary Brokins, nor her name mentioned as he recollects. That Elizabeth Hartman offered as her security a man from Bedford county, on the appeal, whom he refused to take. That it was his practice to read any recognizance he took in the office, though he does not remember particularly to have read this one, that neither Mary Brokens nor William Ho sacky-jr., were present, and that he was then acting as clerk in the prothonotary’s office,” &c.
    The Court over-ruled the motion, and directed that the suit should proceed as fo Elizabeth Hartman alone ; to the opinion of the court the defendants excepted, and the Court sealed a bill of exceptions, which was assigned for error here.
    The plaintiff having given testimony to'show title to the land in dispute in one Orbison, gave in evidence the record of a judgment of the Court of Common Pleas of Franklin county, against him, and the executions thereon, showing a levy on this land, and a return of the sheriff that he had sold it to John Hetich at $410:' he then offered in evidence a judgment in the same Court in favor of John Hetich, against Orbison’s administrator, to January term 18X8, to show that the amount bid by Hetich at the Sheriff’s sale* was covered by the amount due him out of the estate of Orbison. This evidence was objected to, but admitted by the Court, and the bill ol exceptions to the admission of this evidence was also assigned for error here.
    It was admitted that the sheriff who made the sale, Mr. Snider, had executed a deed to Hetich, and duly acknowledged it on the 29th April, 1829, of which a record was made. That Hetich was entitled to the sum of $331 21, upon his judgment, out of the money raised by the sale; the sheriff claimed the difference between this sum and the amount of his bid, and retained the deed until this difference should be paid; and it was s-till in his possession during the trial. The sheriff brought a suit to compel payment, which was still pending. Hetich had told the sheriff to go on, and acknowledge the deed, and he would have the money read}’, he however died insolvent, .without having paid this money to the Sheriff, who frequently demanded it.
    It was in proof that Hetich had-taken possession of the land sold to him, and had sold a part of it. The deed having been obtained from the sheriff during the progress of the trial, at this stage of the cause was offered in evidence, and objected to, but admitted by the Court, who sealed another bill of exceptions, which formed the third error assigned.

      Stahl, the plaintiff, who claimed the land, under sheriff’s sale and deed of it, as property of Hetich, had notice, at the time he purchased, that the deed to Hetich had not been delivered, and would not be, without payment of the balance of the purchase money due by him.

      J. Chambers for the plaintiff in error.
    The appeal from the award of' arbitrators in this case was entered by Elizabeth Hartman, and the appeal and recognizance is in her own name. It is not the practice in the county of Franklin to reduce the affidavit of the party appealing from the award of arbitrators, to writing; a memorandum only is made on the record, that the appellant took the oath according to law. This was done here. He contended that this appeal inured to the use of all the defendants, unless they came into Court and disavowed the appeal. The Court will make every presumption to secure a trial by-jury, and to sustain for this purpose an appeal from, the award of arbitrators under this act of assembly. Jones v. Badger, 5 Bin. 461. ' -
    Unless a written agreement that a party shall not appeal, be made part of the record, the Court will allow the appeal, and this in favor of the trial by jury.
    And where an appeal is taken by one of two defendants for both, and the other come into Court and disavows the' appeal; the case joro forma .should still proceed in the name of both. Meed v.' Garvin’s executors, 7 Serg. & Rawle, 354.
    So if one of several defendants make the the affidavit for the appeal, and the recognizance be for all the defendants, the appeal will stand for all, unless either of the defendants come into court and desire to be severed.--Na Fitte v. La F.itte, 2 Serg. & Rawle, 107. Defendants may,-sever, plaintiffs cannot.. Gallagher "V. Jackson’s executors, X-fSer.g. & Rawle, 492."
    Where any act is for the benefit of third persons, the assent of the person for whose benefit the act is, is presumed. Thus when a- deed is made the assent of the grantee is presumed. Com. D. 273, Fait A 3. And a ratification is as good as an original au--thority.
    Here the appeal was for the benefit of all the defendants, whose consent will thérefore be presumed,, the appeal too has been ratified.
    . But he argued that the Court should have permitted the recognizance to be amended. It was -the' intention of Elizabeth Hartman to appeal for both, and this intention, by the misprison of the clerk, was not carried into effect.
    The Court to effectuate the'intention should have allowed the amendment. The law which once provided as to the amendment of records' has been much changed. The Courts, relaxing the old, and' inconvenient, and often unjust rule, suffer these amendments, so that the intention of the parties may be carried into effect, and this too- by matter dehors the record. As in case of a judgment taken against two, one being dead, the Court will allow the record to be amended by striking out the name of the dead naan.
    2d. The record of the-judgment, Hetich v. Orbison was irrelevant. It was not material to show that Hetich was entitled to-the money, and there was'nothing in the previous evidence to show its connection with the cause. It was not evidence then at this stage of the cause at all events, and therefore was erroneously received. Weidler v. the Farmers’ Bank of Lancaster, 11 Serg. & Ra.wle, 134. And it is a just and wise maxim of the law, that nothing irrelevant to the issue, should be received in evidence. Foster v. Shaw,! Serg. & Rawle; 156, 161.
    3d. The sheriff’s deed was invalid, as it had never been delivered, at all events, until after suit brought, and upon the trial-of the cause', when it was too late for the plaintiff to acquire a title to-sustain-his action.
    The sheriff makes a deed by virtue of an act of assembly, the-provisions of which must be strictly pursued.
    A sale at auction by the sheriff does not divest the estate of the debtor, unless the purchase money is paid, and a deed'delivered. The actual delivery of the -deed is essential.. Gatlin v. Jackson, & Johns. Rep 406. Same case 2 Johns. Rep. 248.
    The acknowledgment of the deed has the effect of only dispensing with the evidence of the execution, and does not prove the delivery. And it does, not necessarily follow,, that, because it has been acknowledged, and a minute made of it on the record* that the deed had been delivered- to the purchaser. Lodge v. Bearier,- 16 Serg. & Rawle, 297,

      The sheriff is bound by the act of assembly to “give the buyer a deed, duly executed and acknowledged in Court.” Act of 1705, §4. Pardon’s D. T. Execution, 265.

      Possession cannot be obtained in the summary mode provided by the act of assembly without the deed. Act of 6th April, 1802, §1. Purdon T. sheriff’s sales and deeds, 760.
    At common law a deed has no validity until it be delivered. 4 Com.' D. T. Fait G. 296, Id. A. 273, 275.
    The recording of a deed is no delivery of it, at best it is merely evidence of delivery. Chess v. Chess, 1 Penna. Rep. 43. And here it was admitted that it had. not been delivered, but that it was retained by the sheriff until after the trial had commenced. The mere sale of the land by the sheriff gives no title to the purchaser, but all things required by the act of assembly must be done, to vest the title.
    The sheriff has a right to demand payment of the purchase money before he tenders a deed acknowledged. Hart’s administrators y. Greenough, 7 Serg. & Rawle, 197.
    But here the deed was, if delivered at all, delivered after the suit brought, and after the sheriff was out of office. . He contended that after the sheriff was out of office he could not make a deed. It must be signed, sealed and delivered by the sheriff, and after he is out of office he ceases to be a sheriff, and to make a deed, upon a sale made by him when in office, requires the order of the Court under the acts of assembly. Hawk v. Slouch, 5 Serg. & Rawle, 157.
    The Court declined hearing Crawford who was of counsel with the defendant in error.

      Dunlop on the same side.
    1. When one of two defendants takes an appeal without naming his co-defendant, the Court would construe the act liberally, and consider it an appeal, unless the other defendant disclaim the appeal.
    But if the appeal were intended for all, the intention of the parties should be effected, either by considering it an appeal for all, or permitting an amendment of the recognizance to conform to it.
    This Court has decided that when upon appeal from the judgment of a justice of the peace, the recognizance is defectively taken, an amendment of the recognizance shall be permitted to sustain the appeal.
    The cases are parallel, and the amendment should have been allowed here.

      In Hunt v. Rous. 8 Wheat. 174, the instrument which had been drawn between the parties did not effectuate their- intention, and the Supreme Court of the United States-gave the party relief, although there had been no mistake of the scriveners, who had drawn the instrument in accordance with the direction of the parties ; but the parties were mistaken in the instrument, it was not calculated to give effect to their intention. A"party should never be deprived of his right by the blunder of his counsel or an officer of the Court.
    But the plaintiff had acquiesced in the appeal as an appeal for all the defendants. His counsel gave notice of trial to the “ defendants or their attorney/’ and he could not afterwards deny that all the defendants'were recti in Curia.

      2. After showing the judgment and execution upon which the land had been sold to Hetich, the plaintiff should have shown the sheriff’s deed to Hetich, under whom he claims ; but he offered no proof of such deed, but a judgment in favour of Hetich against Orbison, as whose property the land had been sold. The plaintiff’s ejectment was not upon an equitable title in a case where guch title will be sufficient to sustain the action, but his suit was upon a strictly legal title; to which the sheriff’s deed was essential.
    To show the payment of the purchase money, or the judgment upon which he migh^ perhaps retain it, was immaterial, without the deed it could not avail the plaintiff, and the deed was sufficient without this evidence. Nor did they offer to follow up this evidence by the deed; jf they had it might perhaps have been evidence. He contended therefore that this judgment was not redundant but immaterial evidence, and should not have been received.
    3. Could the plaintiff recover without a title? Without the sheriff’s deed his title was incomplete, and this he had not obtained. But the plaintiff contends that writing, signing, sealing, and acknowledgment amount to a delivery of the deed. But although these may be evidence of a delivery, here it was rebutted by positive proof that thé sheriff had not, and would not deliver the deed. The grantor takes no title before thq delivery, it consummates the deed; any other doctrine would outrage the most fundamental principles of law.
    If our act of assembly requires that the'purchaser should have a deed, as against the defendant in the judgment to obtain possession from him, it surely requires that he should have it to recover against third persons who do not hold under the defendant.
    In New York where the deed of the sheriff was not delivered, and be died, it was held that the purchaser had no title, but the title remained in the defendant in the judgment. And in that .. state too, where the act of assembly does not in terms require a deed, the Court have held that under the statute of frauds and perjuries the sheriff must make the title, execute and deliver a deed: afortiori under our acts of assembly in reference to sheriff’s sales, which expressly require a deed, there must be a delivery.
    The language of the act of assembly of the 2d April, 1803, Pur don D. T. sheriff’s sales, 763, is “to make, execute, deliver and acknowledge any deed or deeds,” and the several acts of assembly on this subject are to the same effect.
    Until the purchaser holds the deed he is not the owner of the land, nor can he recover possession of it without it. Hawk v. Stouch, 5'Serg. & Rawle, 157.
    An acknowledgment is not expressly required by acts of assembly, but is in force only from the. acts in- reference to sale of land upon execution,- and it has been frequently held that neither the acknowledgment nor the recording of a deed was a delivery of it. And where a sheriff goes out of office, without executing a deed, the proper proceeding is, by an order under the act of the 23d March, 1764. But to warrant such deed, the order must be proved to have been made. Espy’s executors v. Lane, 2 Serg. & Rawle, 53. The acknowledgment is a mere accessary, the delivery however' is essential, it does not take effect from the former but from the latter. Moorhead v. Pearce, 2 Yeates, .456.
    When a sheriff dies, or goes out of office before the execution of the deed, application must be made to the Court to have a deed acknowledged by his successor in office. And the deed is not executed until it is delivered.' In practice the sheriff holds it as security until the purchase money is paid, and this security is obtained because by withholding the deed the title is withheld.
   The opinion of the Court was delivered by

Rogers, J

If one of several defendants, make the affidavit required, by the act regulating arbitrations, and the recognizance be for all the defendants, the appeal will stand for all. But if either of them come into Court and desire to be severed, he may be seyered, and the appeal will go on, in the name of the others. La Fitte v. La Fitte, et al. 2 Serg. & Rawle, 107. Gallagher v. Jackson, 1 Serg. & Rawle, 492. Further than this we cannot go. Elizabeth Hartman took the oath, and entered into the recognizance, with bail for herself alone, it therefore, is but an appeal for one, and amounts to -a severance, as much so, as if her co-defendants had come into Court and disclaimed the appeal. It cannot be successfully contended, that the hail would he liable beyond the recognizance, which stipulates for one of the defendants; without naming the others, or even referring to them, nor would it be in the power of the Court to extend the liability of the recognizance, be3rond their agreement. The bail may be willing to be bound for Elizabeth Hartman, and very unwilling to answer for the act of others. It is alleged that the appeal is for the benefit of all, and that the consent of the other defendants will be presumed. If this were so yet it will not dispense with the provisions of the act of assembly which prescribes that an oath shall be taken, and a recognizance given, for all.

Here the oath was taken by one, and for one, and the recognizance binds her only, and her bail.'

But it is said that the Court should have permitted the defendants to amend the appeal. In order to amend, on the statutes, it is a general rule, there must be something to amend by. The writ may be amended by the praecipe, the declaration by thejjwrit, &e. A general or special verdict has sometimes been amended by the memory or notes of a judge. And a special verdict, even by an affidavit, of what was proved at the trial. 1 Tidd. Pr. But no case, has been cited at the bar, when an appeal has been amended, or -an affidavit of a party, or his counsel, that he inr tended to appeal, and particularly when it is in evidence, that no such intention, but the reverse, was mentioned, at the time the appeal was taken. It was the business of Elizabeth Hartman, and her counsel to see that the appeal was rightly taken, and it would not do to permit a mistake to be corrected on parol testimony. There must be something more certain,"from which the amend* ment may be made. The experience of a century has shewn, that a rigid adherence to this rule, best comports with the safety of the suitors. Besides, had the amendment been allowed, it would have still been an appeal, with an oath, for Elizabeth Hartman alone, and without any recognizance binding the other defendants. It may be remarked, that Elizabeth Hartman does not say, in her affidavit, that she had any authority from the other defendants to appeal for them, nor have we an affidavit of Mary Broking, that she gave her any such power. The plaintiff ha# a right to all the security arising from an oath for all, and a recognizance, with bail, binding all. If we should decide that this appeal was good, Mary Broking would have the benefit of it without any oath taken by her, or for her, or without any recognizance being given, in which she was bound, or any person bound in the nature of special bail, that she would comply with tile directions of the act.

In the year ISIS, the land for which the ejectment is brought, was'sold by Jeremiah Snyder, the then sheriff, as the property of James Orbison. Afler the sale, he acknowledged-a deed, for the premises, to John Hetich, who was the highest, and best bidder. The sum bid for the land, as appears by the sheriff’^ deed, was $410. At the time of the sale Hetich had a judgment against the administrator of Orbison, for $1,240, and on an apportionment of the assets, by auditors appointed for that purpose, it was admitted, that his share amounted to $331 21. After the acknowledgment of the deed, Hetich.took possession of the property, sold part of it, and paid Hosacle, one of the defendants, another part, who resided there, as his tenant for four years. Snyder retained the deed, because a balance of the purchase money, amounting to $898 remained unpaid. A judgment was obtained against Hetich, and on that judgment his interest was sold to the plaintiff in this ejectment. No title was shewn in the defendants.

It strikes me, that by the return of the sheriff, and the acknowledgment of the deed, the title was vested in Hetich.

The acknowledgment of the sheriff’s deed is not conclusive evidence of delivery, but taken in connection with the fact, that the vendee of fhe sheriff took possession of the property, and continued in possession for four years, it is strong proof of it. Chess v. Chess, 1 Penna. Rep. 41. After the return of the sheriff, and the acknowledgment of the deed, the defendant in the execution could have no claim to the land, and it is plain, that the title must be either in him or in the sheriff’s vendee. It cannot be in the sheriff. Nor do the heirs of Orbison pretend that they have any title. The sheriff, by his return, has fixed himself for the amount bid, nor is there any thing to rebut the presumption, that the administrators of Orbison have availed themselves of the liability of the sheriff. Indeed, it is certain, that the whole amount, for which the property was sold, went to the payment of Orbison’s debts. Nor is the retention of the deed inconsistent with this view of the case. On the contrary, Snyder retains the deed to. secure the balance of the purchase money, which he had paid, or for which he had become responsible. He claims no title to the land, but asserts, that as between him and his vendee he has a lien on the land in the nature of an equitable mortgage. If this be considered an equitable mortgage, this is a matter resting between the sheriff' and his vendee, of which these persons cannot avail themselves. .

It moreover appears, that on the trial, the sheriff received his money from the plaintiff, whereupon he delivered over to him the deed,.which he had retained as a security for the money advanced by him.

Besides, by the payment of three-fourths of the purchase money, and the delivery of possession, Hetich acquired an interest in the land, although that interest did not amount to a legal title. And this interest is the subject of execution and sale. This would entitle the plaintiff to possession, in opposition to those who shew no title.

The evidence of the record of the judgment, was pertinent testimony, because it shows the manner in which the sheriff" was in part paid for the land sold to Helich.

Judgment affirmed.


author: Per Curiam.

text:
    COMMONWEALTH for the use of MILLER against BARKER AND OTHERS.
    .IN ERROR.
    A judgment was entered on the 11th February, 1811, .and the 13th April, 1812, the defendant’s attorney signed the following agreement on the prsecipe for the execu- . tion, \\ hich was on the docket.

      “ 1, as attorney of defendants in this case, agree that a Ji. fa. issue for the residue of said judgment, without any revival of the same.”'
    An execution was then issued, and put into the hands of the sheriff, which was-found in the prothonotary’s office, without any return upon it.
    On the 16th November, 1816, the defendant confessed a judgment of revival. Helir that the lien of the judgment of 1811 Was .lost.
    .The agreement of the attorney was not like a revival of the judgment, much less an assent to confess a new judgment, that the lien might be revived for five year's. The agreement was to suffer execution without a revival.
    Error to the Court of Common pleas of Bedford county.
    This was an action of debt on the official bond of George M. Barker, Esquire, the defendant, and his sureties, brought to recover the amount of a judgment in favour of Robert Miller, the plaintiff, against Benjamin Burd; which the plaintiff claimed out of the proceeds of the sale of the real estate of Benjamin Burd, which had been sold by Barker, as sheriff of Bedford county, on an execution.

      Robert Miller's judgment was entered of record in the Court of Common Pleas of Bedford county, to April term, 1811, on the 6th day of April, 1811, and its lien regularly preserved.
    The proceeds of sale were also claimed on a judgment of record in the same Court, in favor of Thomas Cromwell, against Benjamin Burd, and the controversy turned on the question whether the lien of this judgment had been continued. The facts being agreed' upon, a special verdict was found, upon which the Court below gave judgment in favor .of the defendants.

      Thomas' Cromwell’s judgment was entered to May term„ Í806, on the 2d day of June, 1S06; on which a scire facias issued to January term, 1811, on' the 20th day of November, 1810, and on the 11th Pebruary, 1S11, a judgment was rendered thereupon.
    On the 13th of April, 1812, the defendant’s attorney signed the following agreement on the praecipe, for the execution, which was on the docket. “ I as attorney for the defendant in this case, agree that a fi. fa. issue for the residue of such judgment, without any revival of the same. ” On the 16’th April, 1812, a fi. fa. issued to Jlugust’ term, 1812, and was put into the hands of the sheriff, and was afterwards found in the office of the prothonotary, without indorsement thereon of any proceedings of the sheriff.
    An amicable scire facias to revive this judgment was entered to January term, 1817, and on the 20th November, 1816', the defendant confessed a judgment of revival. The lien of this judgment so entered was preserved, but the question raised was whether the lien of the original judgment had not been lost, by the neglect to revive the judgment within five years from the 11th February, 1811, when the first judgment of revival was en» te red,

      McCulloch íor the plaintiff in error
    Contended that the fi. fa. to August term, 1812, upon which fio levy and no return had been made by the sheriff, did not preserve the lien of the judgment entered on the 2d June, 1806. Betz’ appeal, 1 Penna. Rep. 271. The question thus comes round to the effect of the agreement of the 13th April, 1812, signed by the attorney of the defendant on the record. Does this agreement amount to a revival of the judgment? On its face it imports the reverse.
    The act of 1798 was not passed for the benefit of the defendant, as was the object of the' statute of Westminster, which requires the scire facias post annum et diem, but it had expressly in view third persons, purchasers and judgment creditors.
    The judgment by this act remains effectual against the defendant, but as to the third persons, who have subsequently acquired an interest, unless.it is properly revived it ceases to be a lien.
    By the statute of Westminster after the lapse of a year and a day, execution could not'issue unless the defendant, for whose benefit the act was passed, agreed to dispense with a scire facias: and this he may do. Not so of the scire facias under our acts of assembly, the defendant cannot dispense with that,.so as to preserve the lien of the judgment, as to third persons;
    Our Courts have in certain-cases construed this act with reference to the British statute, and although these cases are not to be disputed, yet as no analogy existed in feet, between the two statutes, this Court will go ne further, and in the recent decision,-Betzrs appeal, 1 Penna. Rep. 271, it has got back as far as practicable to the-true construction of our act, unembarrassed by this-analogy.
    In the case at bar, the execution taken out on which nothing was done, had not the effect of preserving the lien of the judg-ment, and surely the agreement to waive the lapse of a year and a day from the time of the judgment, can have no greater effect than the execution itself.
    Nothing can be more injurious and destructive to the interests-of the community, than the constructive violation of statutes, letting in fancied interpretations, and prostrating the fair meaning of the legislature.
    The Court have a memorable- example of this-in- the judicial history of the statute of limitations, which was almost abrogated-by this fanciful spirit of construction, but in England* as here, we’ have now got back to the act.
    - So in regard to- this-act of assembly we have seen the same-spirit of construction at work, until the many mischiefs it was-likely to produce were manifest,, and our Courts have gone back to the act itself. The modern doctrine of this Court on this-subject is sustained by the- recent act of our legislature which is declaratory of what the law was.-

      Miles■ for the defendant in error
    The judgment of Cromwell is the oldest judgment, and unless-it lost its lien, at some period between- its original rendition, and-the time of the sale made By sheriff Barker, it is entitled to be first paid out of the proceeds of that sale. It is-contended by the'plaintiff that it lost its lien between the 11th of February,, 1811, (the date of the judgment- on the- first scire facias, suit,) and the 20th Nov. 1816'(the date of the judgment in the second scire facias suit) five years having elapsed from- the first of those dates previous to the issuing of any scire■ facias to continue the-lien, and that in the mean time the lien of his judgment attached to the land in question. He contended’that Cromwell’s judgment never lost its lien on two ground's-. First — That the,/?, fa. issued upon it preserved the lien and superseded the necessity of reviving it by scire facias.

    Secondly» That the agreement of 13th April, IS 12j.signed by -the defendant’s attorney, and spread upon the record, amounts ■virtually to a revival of the judgment, and is equivalent to the issuing of a .scire facias.

    As to the first ground, .Judge Yeates, in declaring the opinion of the Court, in the' case ©f Young v. Taylor, 2 Bin. 22S, lays .down the broad principle that the aet of assembly of the 4th April .1798, did not abolish the mode of keeping judgment alive by issuing an .execution within the year and day; superseding the necessity of issuing a scire facias under the statute of Westminster, 2d; and the decision in this case has been recognized by the .Supreme Court in several subsequent cases,, as establishing the general doctrine “ that the issuing of an execution within the year continues the Men without resorting to a scire facias.” It was so held in the case of Pennock v. Hark, 8 Serg. & Rawle, .398, and in the case of the Commonwealth :for the use of Pen-.nock’s executors v. McKisson & others, 13 Serg. & Raiole, 147. The same rules apply to the act of th 4th April, 1798, in regard to keeping judgments alive, which apply to the statute of Westminster, 2d. Young v. Taylor, 2 Bin. 228. Pennock v. Hart, 376. The Commonwealth for the use of Pennock’s executors v. McKisson and others, IS Serg. & Rawle, 147. Judge Duncan, in the'last ca&e, makes use of this language, “whatever would he such a. proceeding within the year and day, as would render it unnecessary to issue the scire facias according to the statute would continue the lien under the act of 1798.” Now under the statute of Westminster 2d, where an execution has been issued within a year and day, an alias execution may be issued at any time thereafter without a scire facias, 2d Tidd. 1003, and that too where the writ has not been executed (which is ,exr act'ly the casein regard to Cromwell’s judgment) provided the first writ bereturned, and continuances entered on the record from the time .of issuing it, 2 Tidd. 1004: and these continuances may be .entered after the issuing of the second writ. 2 Tidd. 1004. \3 Serg. Sf Rawle, \Cl. But in Pennsylvania the continuan-may be filled up without even having .the first writ returned. Lewis v. Smith, 2 Serg. & Rawle, 157. And Judge Duncan, in delivering the opinion of the Court in the case of the Commonwealth for Pennock’s executors v. McKisson, says that “ the entry of continuances with us are so mucha matter of form that they are never entered at all. ”

    But it may be contended that the f. fa. issued on Cromwell’s judgment was not issued within the year and day, and that it therefore does not come within the rules established by the cases referred to. As regards the inquiry in this case however, it must be considered as resting upon the-same footing as an execution issued-within the year and day. It was issued with the consent
      of the defendant, (the only person who had a right to object to it,) and at a time too when the Ijen of the judgment was unquestionably good.. The scire, facias is for the benefit of the defend? ant, and the reason why the plaintiff is required to issue it after the lapse of a year and a day, is because he is presumed from the length of time, to have released the execution, and therefore the defendant shall not be disturbed without being called on, and hav? ing an opportunity of pleading the release, or showing cause why the execution should not go. 13 Serg. & Rawle, 147. .But when the defendant agrees that the execution shall issue, certainly it countervails the presumption of a release, and supersedes the necessity of a scire facias. The scire facias calls upon the defendant to shew cause why the plaintiff shall not have his execu? tion, but he by his own act argues that he shall have it, so that the issuing of the scire facias would he oppression, and such a nugatory act as the law requires no man to perform. The necessary result of this reasoning is, that the execution issued regularly, and with the same effect as if it had been issued within the year and day. But even if it had issued without the consent of the defendant after the year and day, it would not be competent to third persons to object to it. It would have been voidable by the defendant in that case on error, or by motion to the Court, but not void. Young v. Taylor, 2 Bin. 230-’l. Miller v. Milford, 2 Serg. & Rawle, 39. It was good between the parties and as to all others, until reversed.
    The act of the 26th March, 1827, has no bearing upon this ®ase.
    On the second ground he argued that the agreement of the defendant’s attorney, dated the 13th April, 1812, amounts virtually to a revival of the judgment, and is equivalent to the issuing of £ scire facias.

    •Agreements are to be construed so. as to effedtuate the inten7 tions of the parties without regard to the ordinary acceptation of •particular words used, where such words would render a contract ineffective and frivolous. 1 Poioell on contracts, 230. 1 Rawle, 162, What was the intent of the agreement of the 13th April, 1812? Was it not to give the plaintiff, Cromwell, the full benefit of his judgment by placing it in such a situation as that it would be to all intents and purposes as available a security as any judgment could be to enable him to collect his debt? Was not the very object of the agreement to place the judgment in the very self-same situation as if it had been revived by scire facias? If this was the object, (and that if is impossible for the mind to doubt,) to give effect to that object the agreement must be construed to be an agreement for the revival of the judgment. What isf the revival of a judgment? If-is an acknowledgment of record that the judgment is unsatisfied,, and that the party has not released his execution. Put the agreement of the 13th April, 1812, as placed upon the docket is an acknowledgment of record that the judgment was unsatisfied at the date of that agreement, and therefore amounts to a revival of the judgment. In a scire fa-cias post annum et diem, if the defendant cannot shew payment of the debt, or something equivalent to payment, the judgment •will be revived as a matter of course, which revival is nothing more in effect than proof of the judgment being unpaid. The scire facias call's upon the party to shew cause why an execution shall not issue, and on failing to shew such cause, the-judgment is that the plaintiff shall have his execution. An amicable revi val of a judgment is an agreement of record that the plaintiff shall have his execution — the agreement of the 13th April, 1812, is .an agreement of record that the plaintiff should have his execution, and the same legal consequences must result from it which ■would have followed if it had been an amicable agreement for a revival of the judgment in the common form. If therefore we look at the intent of the parties, and the objects to be obtained by the agreement, or to the substance of- the agreement itself, it amounts to a virtual revival of the judgment.
    But whether it be considered as a 'revival in technical language or not, it was equivalent to the issuing of a scire facias, and the limitation of five years would commence running from the date of this agreement if our first position be not sustained. Surely it would be as efficacious to preserve the lien, as an agreement made at the date of the judgment for a stay of execution until that time, would have been. And where there is sn agreement ■for a stay of execution, and although that agreement is not placed .upon ,the. record, the year and day does not commence running until the stay of execution, according to the agreement, has expired, Dunlop v. Spur, .3 Bin. 172. Miller's administrators v. Milford, 2 Serg. & Rawle, 36. In such a case no scire facias is necessary until a year and a day after the stay of- execution has expir.ed, because no presumption of payme.nl has arisen from the lapse of time. The scire facias therefore is predicate^ upon tfie presumption of.payment having arisen, but any fact or circumstance which goes to shew that such presumption has not arisen, will supersede the necessity of-a scire facias. 3 Bin. 172. 2 Serg. & Rawle, 36, 8 Serg. & Rawle, 377. So where there is a cesset executio, the limitation of five years does not commence running until the stay has expired, and this too is on the principle that no presumption of payment can arise until after the expiration of the stay.
    From these authorities it seems conclusive that the year and day, and the limitation of five years never commenced running until after the presumption of payment can arise; and whenever presumption is rebutted the limitation can never be carried further back than the day on which such presumption is rebutted. . Here the presumption is completely rebutted on the 13th April, 1813, at a time too when the lien of the judgment was clearly good , and five years did not elapse between that time and the 30th Nov. 1816, on which day the judgment was revived in the second' scire facias suit, and there is no pretence that it lost its lien after that date.

      Chambers on the same side.
    The act of 1798 with respect to the lien of judgments has received a liberal construction.
    Whether such a construction ought to have been given is not now a question — it has been given in a variety of cases, and has furnished a rule to parties, counsel, and Courts.
    As to new cases, the act of 1837 furnishes the rule for their government.
    We ask the Court to apply to an old case the rule furnished at the time by the decisions of our highest judicial tribunal.
    The object and intent of the act was make known by some act of notoriety, on the record, that the money was due.
    When the law would raise no presumption in favor of debtors, there is no reason to suppose the existence of the judgment as an incumbrance, would be a surprise on a purchaser. JPennocle r. Hart, 8 Serg. & Rawle, 378.
    An execution levied dispensed with scire facias.

      A scire facias issued within five years, and returned tarde cé-nit, and after the expiration of five years an alias issued, on which judgment was reversed, held good, and lien maintained. 8 Serg. & Ratole, 378.
    A stay of execution placed on record has been adjudged to dispense with a scire facias. 8 Serg. & Rawle, 377.
    The agreement of the counsel, is to be taken as a revival dispensing with the formal revival by scire facias.

    Form is now as much disregarded in our judicial proceedings, as in deeds and other writings, when the intention of the parties is to be effectuated.
    But if not considered as a revival, it was an agreement of the parties on the record, by which the existence of the debt was made known with notoriety.
    That notoriety was greater than what would have been afforded by an execution issued and levied — by a stay of execution, or by a scire facias unexecuted.
    As respected notoriety it had all the effect of a revival, and for the preservation of the lion it ought, to have the same effect.

      In a recent case decided at the last term at Pittsburg, an agreement to revive the judgment entered _on the original judgment, but not brought forward and docketed afresh, was held to be sufficient to preserve the lien of the judgment: which he contended was analogous to the case at bar.

      McCulloch in reply.
    This case is not within any of the cases decided, and the act should not be destroyed by the reasoning of judges, which by ingenuity may be applied to new cases.
    It was the intention of the legislature that the judgment should be brought forward, to avoid the evil of being obliged to look back through an almost indefinite period for liens; to guard against which, in the act of 1827, a judgment docket is required to be kept.
    The agreement of the defendant’s attorney has no other effect than to dispense with a revival of the judgment under the statute of Westminster, and to authorize an execution, although the year and day had elapsed.
    And in fact without such agreement the execution would have been good, if the defendant did not choose to object to it. This is personal to the defendant. But the agreement does not dispense with the necessity .of conformity to the act of 1798, which is for the benefit of strangers to the judgment.
   Per Curiam.

There is nothing in'the agreement like the revival, of the judgment, much less an assent to confess a new judgment that the lien be revived for five years. On the contrary the agreement was to suffer execution to go without a revival. The meaning is plain that the plaintiff should proceed without the trouble and expense of a scire facias, and this was the whole object in view. As to an extension of a lien from the admission that the judgment was unsatisfied, we are not prepared to carry the principle of Wain v. Sherman, beyond the circumstances of that case, which are altogether unlike the present. The Court therefore erred in determining Crortiwell’s judgment to be a lien.

Judgment reversed, and judgment rendered for the plaintiff


author: GibsoN, C. J

text:
    KEEFHAVER against COMMONWEALTH.
    IN ERROR.
    When upon an indictment, the jury, under the act of assembly, acquit the defendant,' and determine that he shall pay the costs of prosecution, the Court cannot decree the forfeiture of the recognizance of the defendant (being- present,) and his bail to compel the payment of the costs, nor upon such decree, can the recognizance be forfeited at a term subsequent to that, to which it bound the defendant to appear, when the defendant did not appear.
    Recognizances being for an appearance at the next, and not at every succeeding sessions, are to be discharged at the end of the term, by committing the prisoners,delivering them on new bail, or setting them at large.
    Although the act of assembly is silent as to any power to commit in such case, a sentence and commitment are the natural and necessary consequences'of the verdict of the jury, and the power to commit is an incident of the power to sentence; and the Court may commit, although the defendant is a female.-
    On a certiorari to the Court of Quarter Sessions of Adams County, the case was this: At November sessions, 1828, Eliza* beth Keef haver became bound with Peter Keef haver, as her surety, in the penalty of 500 dollars, upon condition that she should appear at the next sessions, to answer, &c., and “not depart the' Court without leave,” &c. She appeared at the next sessions, January, 1829, and upon trial was acquitted, by the jury, who under the act of 8th December, 1804, Purd. J). t. Indictment, 357, determined by their verdict, that she should pay the costs of prosecution: whereupon the Court decreed that “she should pay the costs according to the determination of the jury, and that she be not discharged from her recognizance until the same be paid, or she have leave to depart,” &c. At April sessions following, the costs not having been paid, the Court directed her recognizance and that of her surety to be forfeited, and “she not appearing, the recognizance was forfeited.”

      Stevens for the plaintiff in error
    Contended that the defendant had complied with the terms of her recognizance, by appearing at the next sessions to answer, and that the recognizance could not be forfeited at a subsequent sessions, at which she was not bound to appear.

      Penrose for the defendant in error.
    By the provisions of the act of the Sth December, 1804, in all cases of acquitalsby the petit jury, on indictment for offences, cases of felony only excepted, the jury shall determine by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs'of prosecution. By the second section of this Set, it is enacted that where the jury determine that the prosecutor shall pay the costs, the Court shall, forthwith, pass sentence to that effect, and order him to be committed to the jail of the county Until the costs are paid,,&e.
    This act of assembly being in derogation of the common law and a penal statute, must be construed strictly: in regard therefore, to the case of a defendant who is acquitted, and directed to pay the costs, the Court have no power to sentence to imprisonment, when the defendant is out on bail. This construction is fortified by a reference to the second section, in which the case of the prusecutor, who is made to paj^ the costs, is provided for, and power is expressly given to the Court to sentence the prosecutor to imprisonment. Éxpressio unvus exclusio est allerius. If the legislature had intended to confer the same power in the case of the defendant, it would have been conferred in express terms. What then is to be done in this Case? It-cannot be endured that there should be no mode in which the determination of the jury should be carried into effect. He contended that where the defendant is in custody, the Court Would refuse to discharge him until the costs were paid. Irwin v. The Commissioners of Northumberland county, 1 Serg.fy Rawle, 509: and in ease the defendant is out on bail, the Court, in the'exercise of analogous power, should, as they had done here, decree the payment of the costs, and that the defendant should not have leave to depart, until they were paid, &c.
    This view of the act. of assembly derives strength from a reference to the act of the 2Sth March, 1805. Purdon’s É. T. Indictment, 358. By the act of 1804 there is no provision where the defendant is acquitted and it is determined by the jury that he shall pay the costs, giving power to the Court to make any decree as to the finding of the jury, but the act of 1805, which is entitled “an act explanatory’* of the act of 1804, provides that •“the proceedings and adjudications had by a Court of justice agreeably to the provisions of the Said act “ shall be lawful and valid.” Here the power is expressly given not to sentence to imprisonment, but to make “a decree,” “an adjudication” to compel the payment of the costs. '
    In case the defendant is in prison, the decree prevents his discharge, until the costs are paid, and where he is out on bail, he is in Contemplation of law in the custody of his bail, and the decree ' prevents his discharge in that case also. The bail can at once relieve himself from all responsibility by a surrender of the defendant.
    Nor is this inconsistent with the condition of the recognizance. It is true that one of those conditions is that the defendant should' appear, but this is- not the only condition. The defendant is not “to depart without leave,” &c. which as the recognizance is entered into with a knowledge of, and a view to the existing laws of the land, may be well considered as embracing an “adjudication ” provided by the aet of 1805, such as- was made in this case. The recognizance was in fact forfeited at January sessions,at which the defendant- was expressly bound to appear,- although-it was not formally called until t-he sessions following-; for it was forfeited by the departure of the defendant- without the leave of’ the Court,, &c.
    The Court below were asked in this ease-to sentence the defendant'to imprisonment,.but was embarrassed., as she is a female, by the act of 8th February, 1809,..which prohibits the imprisonment of' a female for debt.

      Stevens in1 reply
    Argued that the bail lias no power over the body of the principal which the Court Have not. The power of the bail is derived from the power of the Court, and must be exercised in subordination to-that power; and if the Court could not imprison, the bail cannot.
    The act of 1804 is silent as to the mode-in which the1 determination of the jury should be enforced in the case of the acquittal of the defendants; but he contended that the Court have the right, in case of the appearance of the defendant,, to imprison,, as- a necessary incident of their jurisdiction of the case, and' the act of 1805 as much, authorizes a commitment of the defendant, as an order or decree of the Court to* compel the- payment of the-costs,.
    A distinction prevailed as to bail in1 .civil, and criminal cases,, in the former, appearance was not an appearance in person, but an appearance on record, by entering, bail to the action,, but in the: latter the appearance is a personal- appearance.. This distinction makes a great difference;, for in the former the bail is forfeited by a failure to perform the conditions undertaken,, but in the latter the law requires that the recognizance should be called in open Court, in order to its forfeiture; and1 in such case-the transaction is-ended when the defendant does-not appear ;. for the bail cannot, as fn civil cases; enter bail of record in lieu of an appearance. In criminal cases then appearance in Court and answering when called' is the only appearance, and is all which the- condition of the recognizance requires. And the recognizance is not forfeited by remaining in- Court until the bail chose ta inflict that punishment wich it is contended the Court could not. The recognizance was not forfeited at the term to- which it bound the defendant to •appear, for it was not •then cabed. At that Court at became • dead, and could not at a subsequent.ter-m be revived and forfeited.
   The opinion o'f the .Court was delivered by

GibsoN, C. J

The forfeiture of the recognizances was recorded under a supposition that the condition required more than a 'bare appearance. In civil cases the .condition is to pay the costs and condemnation money in case the principal do not render him-self a prisoner ; but in criminal cases, it is that he appear and answer, and not depart without licence, which certainly seems to look to nothing beyond his presence in Court. Even were this doubtful, the 'form of the proclamation by which he is required to -“come forth and appear,” and the bail <j:to bring forth the body,” shews the precise nature and’extent of the engagement. The forms of law are the land marks of its substance ; and many of these, it is to be regretted, are fast disappearing in the looseness of our practice. Here the bail was substantially subjected to the punishment of the prisoner: a matter to which his liability did not extend. In England it is sometimes the practice in ■cases of felony that may affect life or member, to take :the recognizance to answer "body for body, but even there, the condition .renders the-bail liable, not to the punishment of the prisoner, but to a fine. Hawk, B. 2, ch. 15, §83. The only difficulty that seems to have been made in any case, grew out of a literal .•adherence to the words which import that the prisoner shall -fmsioer; and hence a doubt where he obstinately stood mute,'or .asserted his privilege as a.clerk,-whether the bail should not be •amerced. .But the doubt has long ceased; and it is now agreed that if the bail, who are the prisoner’s goalers, put his person as effectually within the power of the Court as if he had been in the -.custody .of the proper officer, they .havefulfilled their.engagement. Id. sect. -84. There is no instance where the recognizance is a security for the costs of prosecution at the common law; and but a few where it is made so by statute. Midlock’s law of costs, 528. Here the prisoner had been in attendance all along, and .answered when ealled on her recognizance; and in addition to this., the forfeiture was declared after the recognizance had expired.

It is said the recognizance was the only means to which the Court could hav.e recourse to enforce the verdict. Had it not by implication, every power that was necessary to carry the delegated power directly into execution? Recognizances being for an appearance at the next, and not at every succeeding sessions., are to he discharged at the .end .of .the term, by committing the prisoners, delivering them on new bail, or setting them at large. But to avoid the trouble of renewing the security, it is sometimes the practice when, the bail consent, to forfeit the recognizance and respite it til}-the next term, and this answers the purpose perfectly well. What then was the condition of the prisoner here? Being in Court and not entitled to be discharged, she was in default , of payment, to be committed in execution, The doubt arises front the legislature having thought fit to provide expressly for the commitment of a prosecutor ordered to pay costs, without having repeated the provision as it respect a defendant. But we must bear in mind, that a prosecutor is not a party originally implicated, and an express power to commit him might be thought ne? pessary to quiet, doubts as to the proper manner of enforcing the verdict. Such is not the case of a defendant. He has indeed been acquitted, but not so as entirely to remove every imputation of guilt, and a verdict for the costs of prosecution has been substituted for a full conviction. So that as to him, sentence and commitment are the natural and 'necessary consequences. In either case-, however, a power to commit is an incident of the power to sentence, and a special grant of it in the' case of a prosecutor was probably thrown in as a measure of extreme caution ; or the difference may have been entirely accidental. But whatever may have been the remedy, it is sufficient that to render the bail liable for the costs of prosecution, was neither the object nor the legal effect of the recognizance.

HustoN, J.- — Dissented.

Order of the Sessions'reversed,