author: Rogers, J.

text:
    Dennistoun v. Fleming.
    The drawer of a foreign bill is not a competent witness to prove his authority, or that the circumstances had occurred under which it was shown he was authorized to draw, being liable to the holder for re-exchangc, or the statutory damages on the dishonour of the bill.
    Certificate from the Nisi Prius.

      April 24. The first count of the1 declaration in this case was against defendants as acceptors of a bill of exchange. The second count was against defendants as acceptors of a bill drawn by Crosby on defendants under a written authority, and averring that the bill was taken by plaintiffs on the sight of such authority, and relying thereon.
    The bill was dated Feb. 12, 1840. On the trial, plaintiffs read two letters from defendants to Crosby — one Nov. 21, 1839, announcing they had credited him on account of certain shipments made; the other dated Jan. 21, 1840, in which they said, “In case you are not in funds in time for the dues of February, your valuation on us will be protected, and must request you not to draw under sixty days.”
    They then offered the deposition of Crosby, the drawer of the bill, to prove that it was drawn pursuant to the authority in the letter of Jan. 21. The defendants read the statute of Louisiana, where the bill was drawn, which gives 10 per cent, damages on the return of such bills.
    The rejection of the witness was the question argued by

      Reed, for plaintiff in error.
    The authority to draw had been proved, and the question was merely, whether the circumstances had occurred which authorized the drawing? His interest was balanced, since he could recover from his principal: Riggs v. Lindsay, 7 Cranch, 503; Parsons v. Armor, 3 Peters, 413, where the agent was examined. The rule is settled, that an agent is competent to prove his agency, and here we did not offer to go that far. Scott v. McLellan was the case of a supercargo having but an implied authority: Bent v. Baker, 2 Sm. Lead. Ca. 82, Am. n.

      McCall, contra.
    Scott v. McLellan, 2 Greenl. 200, is full to the point. He was liable to 10 per cent, damages: 1 La. Dig. 93. The interest was not balanced, for he would be entitled to a cession of the judgment against the drawer: Geoghegan v. Reid, 2 Whart. 152. Here the whole question of the ultimate liability of defendants was, whether this bill was drawn by authority, which, if it were not, he was directly liable ?

      May 1.
   Rogers, J.

The drawer of a bill of exchange is not a competent witness for the endorser, in an action against the acceptor, because of his liability to damages, interest, and costs, if the party calling him should not prevail; Scott v. McLellan, 2 Greenl. 199. The same point is ruled in Smith v. Thorne, 9 Watts, 144, on the authority of the Bank of Montgomery v. Walker, 9 Serg. & Rawle, 229; Hubbly v. Browne, 16 Johns. 70. In Smith v. Thorne, it is decided, that in an action by the holder against the acceptor of a bill of exchange, the drawer is not a competent witness to prove that the bill was drawn for his accommodation, because he is liable to reimburse the defendants the costs, should the verdict be against the latter. These authorities dispose of the first error, as there can be no difference whether the suit is on the acceptance, or for refusing to accept. In every other respect the cases are identical.

But it is said the court erred in rejecting the deposition of Crosby, after the letters of the 21st November, 1839, and 21st June, 1840, from Fleming and Marshall, had-been read to sustain ■the second count in the declaration. Without stopping to examine particularly the second count, which we think discloses no cause of action, I am at a loss to understand how the letters referred to make Crosby, the drawer, competent. If the plaintiff fails, he is liable to an action at the suit of the payee, and by the laws of Louisiana, to 10 per cent, damages, although he may be the agent of the drawee; his name appears on the bill, not as agent, but as principal.- But the letter of the 21st January, 1840, only authorizes Crosby to draw in case he is not in funds at a given time. Now the defendant alleges they refused to accept because he was in funds, and therefore had no right to draw. If it had appeared, and had been so alleged in the second count, that the plaintiffs received the draft on a promise by the defendants that it would be accepted, a different case would be furnished. As this, however, is neither proved nor alleged, we perceive nothing in the case to make this an exception to the rule so clearly settled in the cases cited.

Judgment affirmed.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    Coryell v. Dunton.
    Trust for separate use of feme covert, with power to her by deed to revoke and appoint new uses — a conveyance by her and her husband, though not referring to the power, passes the estate!.
    Subsequent deed intended as a confirmation will operate as a valid appointment, if the first conveyance was ineffectual.
    Certificate from the Nisi Prius.

      April 24-5. Ejectment. In 1818, by an ante-nuptial settlement, the property in question was conveyed to a trustee for the separate use of Ann Dunton, afterwards married to Hardy, and upon such further trust, that the trustee should convey to such person and uses as said Ann, by any writing under seal, should, notwithstanding her coverture, limit and appoint; with a further proviso, that said Ann might, by any deed or writing under her hand and seal, revoke, alter, and change the uses, and declare- new ones.
    In 1831, Ann Dunton and her husband conveyed this property to F. A. Jennings, to secure certain acceptances to be made by Jennings, with a power of sale upon notice and neglect to pay.
    In March, 1832, Jennings, under a deed purporting to be in execution of the power, conveyed the premises to Mills, who on the next day reconveyed to Jennings.
    -In June, 1842, Ann Hardy, the cestui que tmst, and her husband, by deed-poll, conveyed tbe property to, and to tbe use of Jennings, in consideration of one dollar. Neither of her deeds referred to the settlement or the power.
    The present defendant was a purchaser for value, by divers mesne conveyances.
    The court directed a verdict, pro forma, for the plaintiff, who was the trustee of Ann Hardy.

      McCall and Mattery, for plaintiff in error.
    The execution of the power by the original conveyance, or the confirmation, is the only question in the cause. It is settled that an appointment to new uses, without words of revocation, is sufficient; Sugd. Pow. 375. This rule is as ancient as the common law, and will be found in Scrope’s Case, 10 Rep. 143; Deg v. Deg, 2 P. Wms. 415; Guy v. Dormer, T. Ray. 295; Degg v. Lord Macclesfield, Sel. Ch. Ca. 44. So where a feme covert has an estate in default of appointment ; Roscommon v. Fowke, 6 B. P. C. 158. In Lancaster v. Dolan, 1 Rawle, 231, there was no reference to the power, and this point was expressly decided in Hoover v. Samaritan Society, 4 Whart. 445.

      Brown and T. Sergeant, contra.
    There is no power given to ' affect the life-estate, and it is the settled rule of this state, that none other exists but such as is expressly given; a separate conveyance is necessary by the trustee; Stahl v. Crouse, 1 Barr, 111. The purchase was, in fact, by the trustee, and a feme covert cannot confirm a breach of trust; Lewin on Trusts, 642.

      Reply.

    Boyle v. Abercrombie, 5 Rawle, 144, settles that if the first deed fails in any respect, they are estopped to deny that the second is effective.

      May 1.
   Bell, J.

Under the settlement of the 8th of September, 1818, Mrs. Hardy took a separate estate in the rents, issues, and profits of the land limited in trust, coupled with a power to revoke the uses and estates declared by the deed, and to appoint new uses. Has she properly exercised this power by either or both of the conveyances executed by her and her husband, to Jennings ? is the only question the case presents.

Since Lancaster v. Dolan, it is the settled law of this state, as it is in some others of the confederacy, that a married woman, in respect to her separate estate, is deemed a feme sole only to the extent of the power conferred by the instrument by which the estate is settled. But this case, following in the track of the older adjudications, recognises the doctrine which had its origin before Scrope’s Case, 10 Rep. 143, that where one has a power of revocation and appointment, and does an act which can only operate as an exercise of it, with an observance of all the circumstances prescribed by the instrument creating the power, the act shall be deemed an execution of the power, though no reference whatever is made to it, and there is not any express signification of an intent to determine the estate which will be defeated by the execution of it, and this though the revocation is required to be made in express words; Guy v. Dormer, Sir T. Raym. 295. In accordance with this doctrine, it has been held that a general disposition of the very property limited, will amount to an execution of the power; Roscommon v. Fowke, 6 Bro. Pl. Ca. 159; and that a general power of appointment, under hand and seal, is well exercised by the creation of a mortgage, although it contains no reference to the power; Lancaster v. Dolan, 1 Rawle, 247. Indeed, so far has the principle been carried, that it was determined in Sir Edward Clere’s case, 6 Rep. 17 b, affirmed in error, Cro. El. 877, that the donee of a power to limit to uses only, without an express power to convey the land, may well execute by a conveyance or devise, for this shall be accepted as a limitation of the use, because otherwise it would be void. Our own case of Hoover v. The Samaritan Society, 4 Whart. 445, settles that a married woman, with power of appointment to her own use, may execute it for the benefit of' her husband, by conveying it on mortgage to secure the payment of his debt. These determinations are decisive of the present case. The deed of 1831, though it contains no reference to the power, and purports to be a conveyance of the land itself, being executed in accordance with the formalities prescribed by the original deed of settlement, must be taken as a revocation of the old, and an appointment to new uses, for without this it would be inoperative. To effect this, the interference of the original trustee is not required, for the settlement does not call for his intervention to confer on the new uses operative vigour. The action of the cestui que use, alone, is sufficient for this purpose, for to her, whether covert or sole, is confided the right, by any writings under hand and seal, attested by two or more credible witnesses, to revoke, alter, or change the primary uses, and to declare others.

But it is objected that Jennings became the purchaser at his own sale, made in pursuance of the trust created by the deed to him, in violation of his duty of trustee, and consequently the sale is void, at the election of the cestui que .trust. This point does not dis - tinetly appear to have been made in the court below, nor does it properly arise from the evidence spread on the paper books. . As a court of error, we cannot undertake to determine, as against the defendants, who are bona fide purchasers, without notice, the asserted fact, simply upon the conveyance from Mills to Jennings, the day after the public sale of the land. But were this otherwise, and assuming the fact to be as averred, it would not be destructive of the appointment to new uses, which is tantamount to a limitation in fee, divesting the estate of the plaintiff, as trustee under the first settlement, who is, consequently, not entitled to recover in this action. Besides thisj were any thing wanting to perfect the defendant’s title, it would be found in the' superadded conveyance from Iiardy and wife to Jennings, of the 16th of June, 1882; for although this would not, perhaps, operate as a confirm mation of the unauthorized acts of the trustee, (Lewin on Trusts, 642, 643,) there is nothing to prevent it having effect as a, new appointment by the wife, upon the supposition that the deed of 1831 had become invalid.

This view covers the whole controversy, and renders it unnecessary to consider the minor points made in the argument.

Judgment reversed, and a venire de novo awarded.


author: Gibson, C. J.

text:
    White v. Fitler.
    Exceptions to bail are waived, by declaring.
    Since the act of 1836, the plaintiff excepting to the bail taken by the sheriff; may rule him to bring in the body, and the court may compel obedience to the rule by attachment.
    Certificate from the Nisi Prius.

      April 25. The plaintiff had commenced an action by capias against Bremond, which writ was returned, C. C. & B. B. Exceptions to the bail were filed, and notice given to the sheriff. There was no justification nor new bail entered. After the notice, plaintiff declared and proceeded to judgment. A fi. fa. and ca. sa.' was issued and returned, N. B. & N. E. I. The present action was against the sheriff for taking insufficient bail. The plaintiff gave in evidence the record of two actions on the bond against the bail, which were prosecuted to judgment, and execution returned • nulla bona.

    Rogers, J., nonsuited the plaintiff.

      J. A. Phillips.

    Since the act of 1886, the sheriff was bound to procure new bail, or a justification of the old one. The District Court deny their right to compel him to bring in the body; Freeman v. Hays, 4 P. L. J. 8; since no such power is given by the act of Assembly.

      Fallon, contra.
    The exceptions were waived by declaring: Commonwealth v. Heilman, 4 Barr, 455. If this were not so, there was no evidence that the bail was insolvent: Corbyn v. Bollman, 4 Watts & Serg. 844.

      May 1,
   Gibson, C. J.

We find nothing in the argument to shake our confidence in the principle of Fitler v. Bryson, 6 Watts & Serg. 566, and the Commonwealth v. Heilman, 4 Barr, 555, that filing a declaration, or .going to trial, is as much a waiver of exceptions to bail, since the statute of 1836, as it was before it. The argument to the contrary is, that, as that act has altered the form of the capias ad respondendum, and substituted for the command to have the defendant before the court at the return of the writ, a command to keep him till he should give bail, it would be anoma-' lous and oppressive to rule the sheriff to bring in the body, when it appeared by his authorized return that he had ceased to have it in his custody. But, in Pennsylvania, the same anomaly and oppression, if, indeed, it were an oppression, existed by the practice under the 23 H. 6, c. 9, 10, which commanded the sheriff to take a bail-bond, and which was in force here, though it was overlooked in the report of the judges. At the common law, the sheriff’s return to a capfjas ad respondendum was, that he had taken the defendant, and had him ready in court at the return-day of the writ and it continued to be so after the enactment of the statute just mentioned, only because it was at first supposed to be a private one, and the bond was consequently supposed to be the sheriff’s private security against the consequences of setting the prisoner at large, while he was supposed to be potentially within the officer’s grasp, though he would have been a trespasser had he laid a finger on him. It was, therefore, thought that, as the court could not take notice of the statute where it was not pleaded, it could not recognise the validity of a return exclusively grounded upon it. Hence the form of the return has Continued to be the same in England perhaps to this day, notwithstanding the grumbling of the judges at the earlier decisions, and their entire overthrow in Samuel v. Evans, 2 Term Rep. 569, by which the statute of the 23 H. 6 was declared, as it ought to have been at first, a public one. The history of the subject is condensed in a note to Benson v. Welby, 2 Saund. 155. What might have been the effect of a modification of the return on a question like the present in the English courts, it is impossible to say; but, in Pennsylvania, where the statute was always held to be a public one, the return in use, perhaps from the foundation of province, has been « eepi corpus and bail-bond,” and yet no one ever doubted the power of the court to rule the sheriff to bring in the body. It was put exactly on a footing with the return paratum habeo, which every one knew to be a fiction where the defendant was at large. Had the sheriff not produced him, he could not have been successfully sued for a false return in even the English courts; for, in Laughton v. Gardner, Moor, 428, in which it was held that, had he pleaded the statute as a justification, instead of confessing the falsity of his return by a demurrez*, he would have had judgment. He would have it now without pleading. Under the practice in Pennsylvania, howevez-, the return being adapted to the truth of the case on the admitted basis that the statute was a public one, there was no discrepance. The return on the 23 H. 6 here was,,as it is now, on the statute of 1836, that the sheriff had taken the defendant and a bail-bond, which differed from the one at present in use only in the form of the condition. This return, to be sure, showed no compliance with the command of the writ, which was to have the defendant in court; but it showed a compliance with the legal effect of it as modified by the statute which authorized him to dispense with the letter of the mandate, and sustained the return just as an appearance, within six weeks after the retzzriz of the writ, was held in Lynn v. McMillen, 3 Penna. Rep. 170, to sustain, by force of, 4 Anne, c. 16, s. 20, the plea of comperuit ad diem in an action on a bail-bond. The anomaly of ruling the body into court after a return that the defendant had been let to bail, therefore, is no greater now than it was before; nor is it essentially greater than it is in England at this day.

But it is said that such a rule could not be enforced, because the twenty-third section of the “act relative to the powers and jurisdiction of the courts,” has restricted attachments for con-tempts to particular heads; the very fiz’st of which, however, is “ the official misconduct of officers of such courts respectively;”' and it will scarce be said that, to disregard the lawful' order of a court, is not official misconduct. To say that a court has not power to make an order because the .sheriff is not bound to obey it, and that he is not bound to obey it because the court had not power to make it, is to argue in a circle. The head, embracing official misconducts, was made a general one, because it would have been impossible to specify every instance of it which might call for summary correction. In reply to the instance put of a rule to bring money into court, it was said in the argument that the command of the writ is to have the money before the judges, and that there is a distinct provision for the enforcement of process. But there is no provision to compel the sheriff to pay it over to the plaintiff after he has brought it into court, or to pay it to the prothonotary for distribution, or into bank for safe-keeping; or for ordering a prisoner to be brought up for trial, or for the thousand and one instances in which an order, if disobeyed, must be promptly enforced. It would be a most constipated interpretation to say that the courts can punish contempts only in those cases in which power to do so is specifically and explicitly given. Yet that would be the result, if the principle were carried out. . It is said, however, that certain judges will not grant a rule to bring in the body whatever the interpretation of this court may be ; and that there would be a failure of justice did we not recede from our position. Should there be a disregard of the decision of the court of ultimate resort, which is not to be apprehended, it would be a dereliction of duty in this court to suffer itself to be controlled by a subordinate through a regard to consequences for which it is not responsible. The nonsuit in the Nisi Prius, therefore, was properly ordered. ■ Judgment affirmed.


text:
    McElroy v. The Railroad.
    Seisin of a rent for twenty-one years affords a legal presumption of title to it. Nor is this presumption destroyed by an occasional variance as to the amount paid annu- • ally, nor by the fact that the claimant had been the husband of a former owner, who died without having had issue, the rent having been paid for more than twentyone years afterwards. It is for the tenant of the land to show that it was not received under a claim of right.
    In error from the District Court of Philadelphia.
    . April 26. Replevin. The plaintiff in error avowed severally for three rents in arrear: one of £7,10s., one of £8 and £4, 10s., and one of $14. On the trial, before Stroud, J., it appeared that the land on which the distress was made had been conveyed by Pidgeon and Sarah, his wife, by two deeds, in 1748, reserving to them and the heirs of the wife two ground-rents of £3 and £4,10s. Sarah survived her husband and intermarried with Goodman, whom she survived, and married McElroy. She died prior to 1800, without having had issue, and McElroy survived until 1833. The avowant was one of his devisees, and these rents had been assigned to him in the partition between the devisees of McElroy.
    The avowant proved, that for three or four yéars previous to 1820, rent had been paid by the agent of the guardian of the owner of the property; that in 1820 McElroy received from him $25 22, being the amount due for rent, deducting $25 36 for taxes. From 1821 to 1831, $14 per annum was paid for the rent. In 1832-33, there was evidence rent had been received from the tenants. From 1834 to 1841, inclusive, excepting 1836, the receipts of those claiming under McElroy to the plaintiffs were shown for the yearly rent of $14. In 1836, the receipt was for $11 22. From 1800 to 1841, McElroy and his estate were assessed for ground-rents, but for what amount did not appear, and from 1808 to 1841 he was shown to have paid the taxes.
    To a request for instructions that the jury were bound to presume a'good title from a payment for twenty-one years, his honour said: I do not instruct you.that from such facts you are bound to presume that the defendant has a good title to the ground-rent, but if you should conclude, from all the facts of the case, that a ground-rent has been paid for twenty-one years and upwards to the defendant, and you shall deem that sufficient evidence of a ground-rent having been created by deed, which may have been lost, you are at liberty to do so.

      E. D. Tarr and Mattery, for plaintiff in error.
    The receipt of the rent for more than twenty-one years creates a presumption of title: 2 Vern. 516; Matt, on Pres. Ev. 310. It is a presumption juris et de jure: 4 Mas. Rep. 397; 8 Watts, 56; Cov. on Conv. Ev. 319.

      Townsend and Price, contrá.
    This presumption is in analogy to the statute of limitations, and it is well settled that if the entry were originally lawful, possession continued after the right ceased does not become adverse: 5 Whart. 597; Foulke v. Brown, 2 Watts, 215; Eby v. Eby, 5 Barr, 435; McMasters v. Bell, 2 Penna. Rep. 180; 2 Watts & Serg. 294; 10 East, 583; 5 Barn. & Ald. 232. The husband was originally seised in right of his wife, and the cases cited show there was no adverse possession to her heirs until' after his death. But the evidence must show the exact rent claimed; prior to 1821 there is no evidence; since then there is no proof of a seisin for twenty-one consecutive years of either of the rents avowed for; and the assessments afford no more proof in this particular ; the evidence did not warrant the instruction asked for;

      May 1.
   Bell, J.

We cannot agree that the answer returned by the court below, to the point submitted by the plaintiff in error, was such as he had a right to ask.

The receipt, says Matthews on Presumptive Evidence, 310, 311, —and the adjudications show he has extracted the rule correctly— the receipt for twenty years of a rent issuing out of land is prima facie evidence of title. This supposition is, of course, liable to be repelled by counter testimony, as by proof of the rent having been created for a temporary purpose, or of particular circumstances in the mode of enjoyment. But, generally speaking, such pernancy affords the presumption of a grant having been made by the present or some preceding owner of the land. This principle was applied in favour of a plaintiff, lord of the manor of B., though the rolls of the manor of A., for a period stretching from the reign of Henry VIII. to Charles I., showed that the copyhold from which the rent issued was held of A., and the plaintiff acknowledged it to be so held, but the rent had been paid to him for upwards of twenty years, and he had no other evidence of his title to it. The court declared that such payment was strong evidence of the severance of the quit-rent from the manor of A., by some grant or conveyance, and that it was payable to the plaintiff: Steward v. Bridger, 2 Vern. 516. Asserting this general principle, Mr. Justice Story, in Tyler v. Wilkinson, 4 Mason, 402, declares that the exclusive use of an easement for twenty years — and in this respect there'is no difference between an easement and a rent —is a conclusive presumption of a grant of a right; and in Cooper v. Smith, 9 Serg. & Rawle, 33, Mr. Justice Duncan lays it down, that where evidence is given of twenty-one years’ (that being the period in Pennsylvania) enjoyment of an easement, by the apparent permission of the owner of the inheritance, the court should leave it to the jury as presumptive evidence of a right by grant or otherwise, and, unless contradicted or explained, the jury ought so to believe. This was but in accordance with the earlier case of Stoever v. Whitman, 6 Binn. 416, where it was held that what circumstances will justify a presumption, is matter of law, and it is the duty of the court to instruct the jury whether the facts will justify the presumption ; and this case follows the English rule that juries, from such an uninterrupted enjoyment of an easement, are directed by the court to presume a grant or conveyance: Cov. on Conv. Ev. 319. Though these presumptions, like the analogous one of payment of a' specialty after the lapse of twenty years, are presumptions of fact, they are regarded as binding on the consciences of jurors, who are not at liberty to disregard them in the indulgence of a capricious unbelief, and it is the province of judges so to tell them when the facts warrant the instruction.

In the present instance, we think there was satisfactory evidence of the payment of a rent issuing out of the lands held by the defendants, by them and those from whom they derived title, to John McElroy, and those claiming under him, for a period of upwards of twenty-one years. Doubtless, this rent had its origin in the reservations contained in the two deeds from Richard Pidgeon and his wife, who was afterwards the wife of John McElroy, to John Clifton and Jonathan Mifflin, respectively, in the year 1748. That but $14 of the amount of the two rents reserved was paid by the tenants of the land from 1816 or 1817 down to. 1841, or that this sum was .sometimes burdened with the payment of taxes and sometimes not, can make no possible difference on the question of right, though it is, perhaps, conclusive as to the amount the plaintiff is entitled to recover. Nor does the absence of explanation as to the mode by which this reduction was originally effected prevent the springing of the presumption of a grant or conveyance to John McElroy; for all'the parties, according to the undisputed evidence in the cause, acknowledged the sum paid to be a rent issuing out of the land, as reserved by the two deeds I have adverted to. The fact relied on by the defendants in error, that in the year 1836 only $11 22 per annum was paid, is without any effect adverse to the pretensions of the plaintiff, for that sum was avowedly paid on account of the same rent, and the single variation in amount is immaterial.

Were any thing required to strengthen the presumption of right in the McEIroys, materials would be found in the assessment of taxes on these ground-rents as the property of John McElroy, from the year 1800 to 1841, and the payment of them by him and the tenants from 1808 to 1841.

But the defendants in error, assuming that McElroy first came into the receipt of the rents lawfully as husband, and afterwards continued to receive them as tenant by the curtesy, says, that therefore there was no such adverse enjoyment of them as is necessary to found a presumption of right until after his death, in 1833. It does not distinctly appear when he began to receive, and there is nothing to show that after the death of his wife he lawfully took these rents by virtue of this curtesy, for it is part of the case that he never had issue by her. At least, it is so asserted by the plaintiff in error, and if the fact were otherwise it was incumbent . on the defendants in error to show it before they could make it a ground of defence. It is true that, generally speaking, where the original possession of a thing is consistent with the absence of a conveyance of it, the subsequent continuance of the same possession may be referred to its origin, and will not be regarded as adverse in the absence of a manifestation of hostile intent. It is not necessary to decide whether this principle is applicable to the case of ■enjoyment of an annual rent or other duty, for the question does not seem to have been made below, nor does the record fairly present it, for there is no proof that McElroy ever received the rent as husband, and we are not to assume the fact in order to defeat his presumptive right... Should this fact be made to appear hereafter, or the point be distinctly made, it will be time enough to determine it.

From what has been said, it will be perceived there is error in that part of the charge of the learned judge who tried the cause below, which comes up with the record. He told the jury that if, from all the facts, they should come to the conclusion that a ground-rent had been paid for twenty-one years to the defendant and those under whom he claimed, and they should deem that sufficient evidence of a ground-rent having been created by deed, which may ■have been lost, they were are at liberty to do so. This was stopping short of the requirement of the rule I have brought into view. The instruction should have been, that if the jury arrived at the conclusion to which the judge pointed, it was incumbent on them to presume a grant of the rent to McElroy and his successors. For this mistake the judgment must be reversed.

Judgment reversed, and a venire de novo awarded.


text:
    Fitler v. Fossard.
    There is no implied promise of indemnity on the part of an execution-creditor to the sheriff, where the goods of a stranger have, through accident or mistake, been levied on, but not tinder the special instructions of the plaintiff.
    In error from the District Court of Philadelphia.

      April 27. Fossard, having a judgment against Fiorelli, delivered a fi. fa.' to the sheriff, under which certain goods in the shop occupied by Fiorelli, were levied on and sold. There was no evidence of special instructions other than a direction to go to the shop at which the levy was made. At the time of the sale, certain articles were claimed by strangers, and were at once given up with the oonsent of Fossard. It appeared that one Pettrick had certain busts, &c., lying in Fiorelli’s shop, and being absent from the city, no notice was given or claim made for these goods, and they were therefore sold by the sheriff as Fiorelli’s. Pettrick brought an action against the sheriff, and recovered,  and the sheriff then brought this action on the implied agreement by Fossard to indemnify him for levying on these goods. Fossard attended at the sale, and bought some of the articles belonging to Pettrick.
    The court nonsuited the plaintiff.
    Fallon, for plaintiff in error.
    The case is of the first impression. The court below considered the rule that there is no contribution between tort-feasors applicable. Here the sheriff, however, was acting under instructions. [Rogers, J. — There is no evidence of instructions to levy on these goods.] He was directed to the house where they were, and he sold with the assent of Fossard, neither of them being aware of the real ownership; but having received the proceeds of a trespass which the sheriff was in effect bound to commit, he must indemnify him. 4 Bing. 66, is similar in principle, the plaintiff being an auctioneer, selling for one having no authority to give instructions. The rule adopted by the court is confined to cases where the act is known to be illegal; 2 Adol. & Ell. 57; Pearson v. Skelton, 1 Mees. & Wels. 504, 4 Cow. 340. He is the agent for the plaintiff, who adopts his act; 4 Mass. Rep. 60. The same principle is applied between the deputy and the sheriff; no express promise is required; Gower v. Emery, 18 Maine Rep. 79; Story on Agency, s. 339, 6 Watts, 551. [Per Curiam. — That is on the maxim, respondeat superior.]

      O. Hopkinson, contra.
    There is no evidence that he pointed out the goods. On the contrary, whenever a claim was made, he allowed it. The rule seems to be settled, that without, express directions or an express indemnity, the plaintiff is not liable to .the sheriff; 1 Campb. 343; 2 Ibid. 452.

      May 1.

         PETTRICK v. FITLER.
      In this case, Pettit, P. J., instructed the jury that the sheriff was liable if he levied on the goods of a stranger, in whosesoever hands they might be; 23 E. C. L. R. 367; provided the plaintiff (who did not give notice) had no opportunity of making known his claim to the property; and this judgment for the plaintiff was affirmed on writ of error.

   Gibson, C. J.

It is sometimes said that, in levying an execution, the sheriff is the plaintiff’s agent.' Having received a sufficient bond of indemnity, or a tender of it, he is certainly bound to follow his instructions; but the relation between them is not that of master and servant, for the sheriff is bound to act, not by force of the plaintiff’s command, but by force of the command in his writ. He is the agent of the law; and therefore it is, that when he seizes, by the plaintiff’s direction, the goods of a stranger on a, fieri facias against the goods of the defendant, the parties do not stand in the relation of joint trespassers. The plaintiff creditor is not a trespasser at all, for the sheriff is bound to stand the brunt of the stranger’s action. He acts at his peril, but not without a means of security, and it is his fault if he does not use it. When he suspects the title of the defendant in the execution to be no title at all, he may call on the plaintiff to secure him, who, if he refuses, does so at the peril of his interest; but if the sheriff seizes without having made such a call, he takes the risk upon himself. There is no such thing as an implied promise of indemnity; for it would involve an execution, which has been called the end of the law, in a maze of endless litigation if there were. On the other hand, where he has received adequate security, or a tender of it, he is bound to go on, or to hold back at his peril. It has been said that a contract of indemnity for selling goods known by him to be the property of a stranger, would be illegal and void as a contract to violate the law. Not so. What he supposes to be knowledge may be no more than opinion, and possibly an erroneous one; but the execution-creditor may entertain a different opinion, and consequently be entitled to have its accuracy tested by experiment at his own cost. The object of such a contract, therefore, is not to commit a trespass, but to have the benefit of a remedy, and to assert a right. In the present case, however, the execution-creditor directed the levy to be made, not uj>on the stranger’s goods in particular, but on the goods in the possession of the debtor, who actually owned a considerable portion of them; in which he did no more than is usual for plaintiffs to do. There was no apprehension of liability to a stranger; the sheriff took no security against it; and having acted on his own responsibility, he is without remedy.

Judgment affirmed.


text:
    Kentucky Bank v. Combs.
    Where an attorney is employed to solicit pardon for a fugitive from justice, to enable him to return to the state, so that the principal may use him as a witness in a claim for which suit has been brought, the amount of the claim is proper for the consideration of the jury in estimating the compensation for such agency.
    Where one proposes to act for another generally, and the principal declines the proposal, but agrees to employ him for a particular purpose — and the agent continues to act beyond the scope of his agency without dissent — the principal will be taken to have assented to such acts, and is bound to compensate the agent accordingly.
    In error from the District Court of Philadelphia.

      May 1. This was an action by Combs, a member of the bar of Kentucky, to recover compensation from the defendant, as their agent. The defendant was a claimant on the Schuylkill Bank, on account of fraudulent issues of the stock of the former by the latter, as it was alleged. The plaintiff proved that he had acted for the Kentucky Bank in some parts of the business of procuring evidence, &c., for the prosecution of their claim. The suit instituted for that purpose against the Schuylkill Bank resulted in a decree for upwards of ¡§1,000,000, from which an appeal had been taken.
    His honour, Sharswood, J., instructed the jury, “ That as to the amount of their verdict, the following considerations (inter alia) might with propriety be weighed by the jury: 1. The importance of the business intrusted to the defendant; at least as it was deemed at the time by the parties. In this view the jury may consider the extent of the claim of the Kentucky Bank on the Schuylkill Bank.” And whether this was erroneous, under the evidence, was the only question. The following facts were those referred to by the counsel during the argument, as showing the instruction to have been erroneous. It appeared that prior to March 5, 1842, Combs had been to Texas, ineffectually endeavouring to procure the return of one Levis to this state. Levis was the cashier of the Schuylkill Bank, against whom indictments were pending, and it was supposed could give information as to the fraudulent issue of stock, which could not otherwise be discovered. On that day Combs wrote the attorney of defendants, proposing to act for the bank in various ways upon receiving the amount of his expenses, and a commission on all received on a compromise or recovered over $150,000.
    •In reply, the defendants stated, the only important object at that time was the procuring the pardon of Levis from the governor of Pennsylvania. They declined the terms offered, hut said that in case of his aiding in doing this they would make him a fair compensation. In the mean time he wrote that he had done many things, as if his agency was to he used; hut if it were not, he would he gratified by having benefited-the bank and the state.
    It was also in evidence that, on the receipt of this letter, the board of directors of defendants’ determined not to employ him in conducting the suits, or any other business arising out of the claim. And the defendants relied on the fact of their refusal to employ plaintiff in any other matter than the pardon, to show that the extent of their claim against the Schuylkill Bank could not enhance this collateral undertaking.
    On the 15th May plaintiff wrote defendants, complaining of his want of authority to act, and saying his mission was done, as he had no instructions or power to do more than he had done.
    In the preceding month the attorney-general had entered a nolle prosequi on all the indictments found against Levis. It did not appear that Levis’s testimony was read on the hearing of the bill against the Schuylkill Bank; and it was proved by one of the judges not to have been considered. It appeared also that the plaintiff had acted generally in the business of the defendants, and communicated to them constantly what he had done. But there was no distinct disavowal of his agency, other than the letter of March 5.

      Gerhard and F. W. JTubbell, for plaintiffs in error.
    The letter of March 5th shows there was no previous bargain; and, by the answer to that, the business on which alone the plaintiff was employed was the Solicitation of a pardon from the governor. It was also proved that for any other purpose the defendants declined employing him. How then can the amount in controversy affect the rate of compensation ? Indeed the purpose itself is one for which no compensation can be claimed: 7 Watts, 152; 5.Watts & Serg. 315. To bring that in as one of the items on which the amount is to be estimated, either the labour or responsibility of the agent must be increased. If neither of these are so, how can its existence enhance the compensation? That this is the rule, is shown from Pusey v. Clemson, 9 Serg. & Rawle, 208; Stevenson’s Estate, 4 Whart. 104; 3 Watts & Serg. 24. His responsibility was not increased, because defendants having no right to the pardon, it being a mere matter of solicitation, a mere failure or neglect to ask for it cannot give an action: Webster v. De Tastet, 7 Term Rep. 157; Taylor v. Brewer, 1 M. & Sel. 290; Sedgw. on Damag. 355. Nor is the amount yet recovered; it is only by way of calculating commissions that it is ever used; 2 Beav. 491; and his employment was not in the cause — that was expressly refused, and he was confined to this single collateral matter. Á scrivener or amanuensis, or the like, whose office is merely mechanical, is not paid in proportion to the value of the property. How then, where neither labour nor responsibility is increased, can the court say the amount in controversy is to be considered ? It cannot be, that after a flat refusal of his services, we were bound to reiterate the refusal by covey post; nor can there be a pretence that he was employed for any thing but this one object.

      Randall, contrá.
    The amount was proved without objection, and being in evidence, the court merely referred to this as a guide: 3 Watts, 50, 53. We offered to show the increased value to defendants’ stock, but they objected to it.

      May 9.
   Gibson, C. J.

It is not to be doubted that responsibility, in a confidential employment, is a legitimate subject of compensation, and in proportion to the magnitude of the interests committed to the agent.' The principle has not been directly controverted by the counsel for the plaintiff in error; indeed, it has been practically admitted by the elaborateness of their argument, which, liad a few hundred dollars been in contest, instead of ten thousand, would have taken few more minutes for its delivery than it has taken hours. The single point in the cause was so minute, that its exact shape could scarce be made plainer by the magnifying lens of a speech, yet it is nevertheless so palpable as to be incapable of illustration. “As to the amount of the verdict,” says the judge, “the following considerations (inter alia) might with propriety be weighed by the jury: — The importance of the business intrusted to the plaintiff, at least as it was deemed at the time by the parties. In this view the jury may consider the extent of the claim of the Kentucky Bank on the Schuylkill Bank.” Surely no one will contest the soundness of the principle. But it has been pressed that it was inapplicable to the case disclosed by the evidence, and in that aspect alone could the predication of it be, by any possibility, erroneous. It has been said that the agency was not a general, but a special one, and that, being limited to specific acts of service involving no exercise of discretion, it was not a confidential one; to illustrate which, it has been compared to the employment of a messenger to deliver documents, who is said not to be responsible for negligence to the amount of the interest at stake. I am by no means clear that he would not. But a lawyer charged with particular preparations for a lawsuit, is not to be made responsible, or paid as a porter or a shoemaker. It does not clearly appear, however, the plaintiff was a limited agent. His correspondence with the bank exhibits him on the field of action at Philadelphia, as the adviser of its measures, and though his retainer did not expressly extend to that, it was the duty of the bank, if he- had intermeddled improperly, to tell him so; instead of which, in none of its letters to him did it exhibit dissatisfaction at any thing done or proposed by him; and so far as he assumed to be its agent and counsellor, it recognised him as such by its silence. It seems that the relation he bore to it was not defined in the apprehension of either party, and so long as it allowed him to act for it generally, so long were both respectively responsible to each other for acts done by him within the scope of the authority assumed by him. Nor is it material that the principal object he was employed to accomplish, the procurement of the testimony of Levis, had ceased to be indispensable. The parties deemed it to be of vital importance when they instructed him to secure it, and it might have turned out to be so in the end; insomuch that had the claim been lost by a want of it, occasioned by his negligence, he would have been liable for the amount. There was, therefore, some evidence to go to the jury of a case to which the principle was directly applicable, and if there was error at all, it was not on the part of the court.

Judgment affirmed.


author: Per Curiam.

text:
    McAboy versus Johns & Wife.
    1. A purchaser agreed to pay a wife $500 if she would execute a deed for land sold by her husband ; she executed the deed. Held, that she could recover the money from the purchaser.
    2. The contract between the purchaser and the wife was that he was to. give her a writing for the payment of the money. He gave her a paper which she could not read and represented that it contained the contract; she thereupon executed the deed. The paper did not contain the verbal agreement. Held, that she might recover on the verbal promise.
    October 5th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 42, to October and November Term 1870.
    On the 80th of October 1868, Mordecai Johns and Sarah his wife in her right, brought an action of assumpsit against L. R. McAboy to recover the sum of $500, which Mrs. Johns alleged the defendant had promised to pay her for executing a deed conveying to H. L. Bollman land belonging to her husband. The cause was tried May 10th 1869, before Sterrett, P. J.
    From the evidence in the case, it appeared that a contract in which the defendant was in some way interested, had been made by the husband to sell a farm in Butler county to Bollman. The deed was prepared and executed by the husband about February 1868; Mrs. Johns was then asked to sign the deed; she refused to do so unless the defendant would pay her $500. After some negotiation the defendant prepared, signed and delivered to Mrs. Johns an agreement as follows:—
    “ I agree with Mrs. Sarah Johns to hold for her benefit the first judgment on the records of Allegheny county against Mordecai Johns, for a sum not less than five hundred dollars, the value in the same being her property, and I bind myself and my heirs, executors or assigns to make the transfer of the same upon 80 days’ notice.
    “ Witness my hand and seal this February 12th 1868.
    “L. R. McAboy. [l. s.]”
    She then signed and acknowledged the deed.
    Mrs. Johns gave evidence that the defendant promised to pay hsr $500 if she would sign the deed; that she could not read the paper; it was not read nor explained to her; that the defendant misrepresented to her its contents, leading her to believe that it contained a promise to pay the $500, and that she would receive the money upon presenting the paper; that he frequently afterwards recognised his obligation to pay her the $500, and promised to pay her. She gave evidence also that in the next summer she consulted counsel in the matter, who told her what the paper was, and that it was of no value to her; she then took it to the plaintiff and left it with him, telling him that he had deceived her, and that it was not what she had expected to receive; he said he could not do anything more or better. The defendant gave evidence in contradiction of the plaintiff’s evidence — that the paper contained the terms of the agreement with Mrs. Johns, and that it had been read and explained to her before she executed the deed; he gave evidence also to show that her husband was very much in debt, and in failing circumstances.
    The defendant’s 2d, 4th and 5th points, with their answers, are as follows:—
    2d point. “ If the jury believe that Mrs. Johns, the plaintiff, signed the deed upon the faith of the paper dated February 12th 1868, even though they should also believe that she was mistaken or purposely misled as to the contents of said paper by the defendant, and that her signature to said deed was procured through fraud and misrepresentation on part of defendant, she has misconceived her remedy for said injury, and cannot recover for the same in this action.”
    Answer : “ This point is refused: the law is the reverse of this. If you find the facts to be as stated in this point, the plaintiff is not bound by the paper of February 12th 1868, and may recover if you find that the plaintiff signed the deed upon the faith of a promise by defendant to pay her $500 for doing so. The facts are all for you.”
    4th point. “ If the jury believe that the defendant handed to Mrs. Johns, the plaintiff, his written promise to her, in consideration of her signing the deed, before she did sign the deed, even though he did not read the same or state the contents thereof to her, that it was Mrs. Johns’s duty, if she did not understand the said agreement, or know the contents thereof, to demand an explanation of the same, and if she then neglected so to do, she cannot now allege she was mistaken as to the same.”
    Answer: “ This point is affirmed, with this explanation. If the agreement of the parties was that defendant would pay her $500 for signing the deed, and was to give her a writing to that effect, and if the paper of February 12th 1868 was written and handed to her without any explanation by defendant, but under such circumstances as were calculated to induce the plaintiff to believe and she did believe that it contained a promise to pay her $500, according to previous understanding of the parties, and she returned the paper within a reasonable time after discovering that it was not such a paper as she was led to believe it was, she is not bound by it, and may recover on the verbal agreement.”
    5th point. “ The agreement of defendant, dated February 12th 1868, to hold, for the benefit of Mrs. Johns, the plaintiff’s judg-ments against Mr. Johns, her husband, to the amount of $500, is perfectly legal and binding, and that upon judgments [so held execution could be issued, the property of the husband sold, and the proceeds of sale would belong to Mrs. Johns.”
    Answer: “ This point is affirmed, with this qualification. If the husband of the plaintiff was insolvent or in failing circumstances, and his money was to be used to buy a judgment against himself, to be held for his wife’s use, the creditors of the husband could interjJbse and perhaps defeat the claim of the wife to the proceeds of an execution issued upon the judgment so held.”
    The verdict was for the plaintiff for $555.25.
    The defendant took a writ of error, and assigned the answers to his points for error.
    D. T. Watson (with whom were R. & S. Woods), for plaintiff in error.
    As an estoppel must be mutual: Co. Lit. 352 a; as a married woman could not be bound by her agreement, the defendant could not be estopped to deny that he had made representations different from the paper: Morrison v. Wilson, 13 California 194; Jackson v. Vandreheyden, 17 Johns. 167; Glidden v. Strupler, 2 P. F. Smith 400; Keen v. Coleman, 3 Wright 299. Mrs. Johns should have read the paper; her injury results from her own negligence: 1 Story Eq. Jur., § 200. The wife had the right to receive the $500 for executing the deed, although in the shape of a judgment against her husband: Keller v. Michael, 2 Yeates 300; Eberle v. Fisher, 1 Harris 526.

      A. Blakeley, for defendants in error.
   The judgment was affirmed, October 16th 1871,

Per Curiam.


author: Read, J.

text:
    Cook et al. versus Mackrell et al.

    1. Johnson, wishing to be appointed a sequestrator, employed Mackrell, a lawyer, to conduct the proceedings in the Common Pleas. The petition was signed by a number of others, some of whom spoke to Mackrell and urged him to press the proceeding. Held, that this was not evidence of a promise by the others to pay.
    2. Mackrell declared against seven on a joint contract; there vras no evidence in relation to three. Held, that the action could not be maintained.
    3. In answer to a point, that under the pleadings the plaintiffs could not recover, the court charged, “ We leave the liability or non-liability of these defendants to be discovered and determined by the jury from all the facts of the case.” Held, that this left to the jury to determine both the law and the facts, and therefore was errox-.
    October 11th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and AYilliams, JJ.
    Error to the District Court of Allegheny county: No. 181, to October and November Term 1870.
    This was an action of assumpsit brought January 11th 1867, by H. C. Mackrell and S. A. Johnson, partners, for the use of H. C. Mackrell, against J. AV. Cook, Henry Eaton, R. F. Smyth e, J. H. Oliver, Robert AV. McPherson, John H. Miller, David Sample, T. MacConnell and Eli Neeld.
    The plaintiffs declared against the defendants jointly, that the plaintiffs, being attorneys at law, had been employed by the defendants to prepare an application and conduct other legal proceedings in the Court of Common Pleas for the removal of one James Blackmore from the office of sequestrator of the AVashington and Pittsburg Turnpike Road Company and procure the appointment of Robert Johnston; that the plaintiffs performed their duty as attorneys in that behalf; that tlieir services were worth $500, which the defendants promised to pay, but had refused, &c.
    On the trial before Kirkpatrick, J., February 15th 1870, Mackrell, the plaintiff, testified that his partner Johnson had put into his hands a petition for the removal of Blackmore and the appointment of Robert Johnston as sequestrator; that he subsequently saw Cook, Smythe and Eaton, three of the defendants, who told him to proceed and have Blackmore removed. The petition being defective, Mackrell prepared another, which was sworn to by Neeld, another defendant; after proceeding in the case and performing a considerable amount of labor, a compromise was proposed, which Cook advised Mackrell to accept. Johnson, the other plaintiff, testified that Oliver, another of the defendants, had been in the plaintiff’s office about the business. There was no evidence that any other one of the defendants than those mentioned in the above testimony had consulted with the plaintiffs or had spoken to them at any time about the business. The petition was signed by about seventy persons, including the defendants. The plaintiffs sent bills to the different signers of the petition and collected one of them.
    The defendants gave evidence in conflict •with that of the plaintiffs ; also that some of them had no interest in- the proceeding, but had signed at the request of -Robert Johnston, the applicant for the appointment of sequestrator; that no one but he was concerned in the employment of the plaintiffs, and that he had paid them $15, the amount of the bill they, presented to him. .
    The defendants’ points and the answers, which were the only errors assigned, are as follows:—
    4. If the jury believe the evidence for the defence, plaintiffs cannot recover.
    Answer: “ Refused. We leave the liability or non-liability of these defendants to be discovered and determined by the jury, from all the facts in the case.” -
    5. Under the pleadings, the plaintiffs cannot recover, and your verdict must be for defendants.
    Answer: “Refused.”
    6. The plaintiffs, in electing to charge the signers of the petition in the proportions in which they — plaintiffs—thought each signer-was benefited by their services, plaintiffs are debarred from recovering from each defendant more than the specific sum charged in the bill sent to each defendant.
    Answer: “ Refused. The jury have heard all of the testimony in regard to the separation of bills, and we leave it to them to discover what was intended by the manner in which these bills were sent.”
    The verdict was for the plaintiffs for $250. The defendants removed the case by writ of error to the Supreme Court.

      C. S. Fetterman (with whom were F. M. Magee and T. M. Marshall), for plaintiffs in error.
    There was no evidence of any contract between the plaintiffs and defendants. The declaration was on a joint contract, and as to some of the defendants there was no evidence of any connection whatever between them and the plaintiffs. Without proof of a joint contract, there could be no recovery: Fagely v. Bellas, 5 Harris 67; Nutz v. Reutter, 1 Watts 229; Wilson v. Bank, 5 Casey 537; Boggs v. Curtin, 10 S. & R. 211; Lee v. Gibbons, 14 Id. 105; Rowan v. Rowan, 5 Casey 181; Schoneman v. Fegley, 7 Barr 433; Corbet v. Evans, 1 Casey 310; Swanzey v. Parker, 14 Wright 441; Locke v.
      Daugherty, 7 Wright 88; City v. Reeves, 12 Id. 472; 1 Sanders’ Pl. & Ev. 177. Johnson was the employer, and an action would lie only against him: Pinchon v. Delaney, 2 Yeates 22.

      Hampton & Dalzell, for defendants in error.
   The opinion of the court was delivered, October 23d 1871, by

Read, J.

The declaration sets out a joint contract by the defendants to pay the plaintiffs below for their services rendered in applying to the- Court of Common Pleas of Allegheny county, for the removal of James Blackmore as sequestrator of the Washington and Pittsburg Turnpike Road Company, and prosecuting the same. The facts of the case are few. There was dissatisfaction with Blackmore on account of the state of the turnpike road, and Robert Johnston, an old gentleman of seventy years of age, desired to be appointed in his place. He prepared a petition for the removal of Blackmore, got some signatures and handed it to S. A. Johnson. The plaintiffs took the names off this petition which Robert Johnston had got the signatures to himself and put them on another petition, which they said was worded better. There was no re-signing of this petition. Johnson the plaintiff went down and got more names to it, though Johnston paid the plaintiffs fifteen dollars, the amount of the bill they presented him. This petition was signed by seventy persons, and sixty-two persons signed another petition for the appointment of Johnston.

The seven plaintiffs in error were sued as joint debtors upon this alleged joint contract, but there was no evidence to prove it, and in fact no evidence that any one of them did assume or promise to pay the plaintiffs, and as to three of them, McPherson, Miller and MacConnell, their names were not even mentioned on the trial by any one. There was no evidence of any kind against them. It is clear, therefore, there was no evidence permitting the court to submit the question of the joint liability of the defendants to the jury.

The court refused the 5th point, “ That under the pleadings the plaintiffs cannot recover, and your verdict must be for the defendants and the 4th point, “ That if the jury believe the evidence for the defence, plaintiffs cannot recover,” was answered “Refused. We leave the liability or non-liability of these defendants to be discovered and determined by the jury from all the facts of the cas*e.” Thus throwing upon the jury the responsibility of determining the law as well as the facts. It is certain three of these defendants were not liable at all, and if so, the whole were not liable, and under the pleadings the plaintiffs could not recover.

It is a case in which the court should have said to the jury, your verdict must be for the defendants.

Judgment reversed, and venire de novo awarded.


author: Agnew, J.

text:
    Rider versus Maul and Wife.

      1. The admission of a deposition was objected to by defendant on the ground that the statements of the witness were hearsay, and he offered another deposition of the same witness, taken six years afterwards, in. which she testified that the statements were hearsay. The court would not then hear the second deposition and admitted the first, saying that they would rule it out, if, when defendant gave his evidence, the first appeared to be hearsay.
    The second deposition so showed, and the court instructed the jury to disregard the first. Eeld, to be a matter of discretion, and not error.
    2. Generally a party is entitled to a full and unqualified answer to his point. But where the point may mislead the jury if not qualified, or the evidence requires, the court should so qualify the answer as to turn the attention of the jury to the true question in the cause. '
    3. Jacobs and Rider bought land together by articles, and made partition : Jacobs gave Rider money to pay the taxes; the whole tract was sold for taxes in 1840; the purchaser assigned his title to Rider ; he fraudulently obtained the articles from Jacobs and obtained new articles from the original vendor to himself for the whole; he went into possession, paid the taxes for the whole, and sold part of the Jacobs lot. Jacobs died in 1849, leaving a minor child (the plaintiff), who came of age December 6th 1855; in 1853 Rider obtained from the vendor a deed, which was recorded September 25th 1854. Held, that these facts were not notice of a fraud or such as would lead to its discovery by reasonable diligence, under the Act of April 22d 1856.'
    4. The facts would be sufficient notice of a trustee not ex maleficio.

    October 17tb 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Jefferson county: of October and November Term 1870, No. 52.
    This was an ejectment, brought July 24th 1860, by Frederick Maul and Mary E. his wife, formerly Mary E. Jacobs, in her right, against John Rider and P. Deitrick, for 300 acres of land in Winslow township.
    The case had been three times tried and removed to the Supreme Court; it is reported in 10 Wright 376, 1 P. F. Smith 377, 9 Id. 167. A nonsuit was suffered as to Deitrick.
    Both parties claimed under George Latimer, deceased. On the 29 th of March 1867, C. C. Gaskill, as agent for Latimer, contracted by articles to sell to John Rider (defendant) and Martin Jacobs (plaintiff’s ancestor) the tract in dispute for $600, to be paid, $120 in hand and the residue in four equal annual payments; the purchasers to receive a good title on payment of the purchase-money ; 100 acres of the land, it was supposed, might have been sold, and if so, the purchasers were to pay but $400.
    Endorsed on the articles were receipts as follows:—
    March 22d 1837, $120 — from Rider -and Jacobs; March 21st 1838, $120 — from Rider and Jacobs; March 21st 1839, $60— from Rider; April 30th 1839, $60 — from Jacobs; February 28th 1849, $20 — from Rider.

      Endorsed also : “ Given up and resold to John Rider 6-9,1849, Jacobs’s part having been sold some years ago for taxes and repurchased from John Philiiber' by Rider.”
    Jacobs died in 1849, leaving a widow and one daughter, the plaintiff, who attained full age December 6th 1855, and married the other plaintiff October 5th 1856.
    The case was tried February 15th 1870, before Campbell, P. J. Eor the plaintiffs there was evidence that there had been a division line run between Jacobs and Rider in 1838, Jacobs taking the east part and Rider the west, each began to clear his part of the land; Rider lived on his part; Jacobs was there a short time, without residence, and then left and did not return.
    C. C. Gaskill testified that about ten years after Jacobs had made his last payment, Rider called on him several times and told him that Jacobs’s part had been sold to John Philiiber for taxes; Rider showed him the treasurer’s deed to Philiiber and Philliber’s assignment of it to him (Rider). Gaskill, as agent of Latimer then, at the request of Rider, entered into new articles with Rider alone for the land ; they were dated June 9th 1849, for $317 — part in hand and the remainder in three annual instalments ; a good title to be given when all the consideration should be paid.
    The plaintiffs offered in evidence the deposition of Anna M. Denhart, regularly taken July 23d" 1861. The defendants objected to the admission of the deposition, and to sustain their objection asked to read the deposition of the same witness taken September 7th 1867, in which she testified that many of the statements which she had made in her first deposition were hearsay. The court declined to arrest the cause, and allowed the plaintiffs to read their deposition, saying, “ If the defendant can show the evidence to be hearsay when he comes to give in evidence on his part, we can rule it out.”
    The court sealed a bill of exceptions for the defendant.
    In her first deposition, the witness testified that Jacobs advanced the whole money for the first payment of the land at the time of the purchase; Rider was to pay the taxes of the land because Jacobs had advanced the whole purchase-money for the first payment. Jacobs held the article from Gaskill; Jacobs died August 1st 1849 ; not long before his death, Rider said to Jacobs that he wanted to borrow money, and wanted the article to give the land for security; Jacobs gave it to him, saying Rider had as good a right to it as himself, and if he wanted to borrow money he would give it to him.
    Margaret Jacobs, widow of Martin Jacobs, testified to the same facts substantially.
    There was other evidence that Jacobs made the first payment; that he gave Rider money to pay the taxes; that the land had been sold to Philliber for taxes; that Rider had procured Philliber to buy it for him ; that Rider said he was the agent for Jacobs ; that he had got money from Jacobs to pay taxes, but concluded to let it be and he would lie by for a speculation, and if there was any speculation in it, it was as good for him as for Jacobs, and he got it all into his own hands. There was further evidence tending to show fraud in Rider in the purchase of the land for taxes and in obtaining the article in his own name from Gaskill.
    The defendant gave in evidence the deposition of Anna M. Denhart taken in 1867. In that she testified that the statements made in her former deposition were hearsay, having been made to her by Jacobs when Rider was not present. He gave in evidence also the treasurer’s deed to John Philliber, dated December 14th 1840, for land assessed in name of Rider and Jacobs, and assignment dated May 9th 1842 from Philliber to himself; deed from Latimer to him, dated January 9th 1853, recorded September 29th 1854. He gave evidence also of a parol partition between himself and Jacobs according to a division line run in 1838 by Winslow; with evidence of possession by the parties according to the line; he testified that from the time of his purchase from Philliber he claimed the whole 300 acres. When he ascertained that it was to be sold for taxes, he informed Jacobs, who would not pay any of the taxes; that after the treasurer’s sale Jacobs told him to buy the treasurer’s deed, and then he (defendant) would have the whole of the land.
    In 1843 the whole 300 acres were assessed to Rider, and he paid the tax on the whole until 1853, when he sold to P. C. Dietrick 100 acres of the part claimed by Jacobs; Latimer made the deed directly to Dietrick.
    There was other evidence in contradiction of the plaintiffs’ case.
    The following are points of the defendant, with their- answers :—
    3. If the jury believe that James Winslow, in 1838, at the request of the plaintiff’s ancestor and the defendant, ran a line which was marked on the ground and agreed uponf as a division-line between them, and each took possession of his part in pursuance of such agreement, the tenancy in common was severed, and if the land was afterwards sold for taxes to John Philliber for the non-payment of the taxes of 1839, and by the said Philliber sold to the defendant on the 9th of May 1842, the plaintiff is not entitled to recover any portion of said land.
    Answer: “We think the mere running of a division-line and a few days’ work by each on his respective end, without residence at all on either end, is somewhat slight evidence on which to find a severance of the tenancy in common. We submit it to the jury, however, and if you find that there was a severance at the time the tax was assessed, on which the land was sold to Philliber, we answer the point in the affirmative.”
    4. The defendant, by his article of the 9th of June 1849, which was followed by a deed from the executors of Latimer, on the 19th of January 1853, was placed in no worse situation than Latimer, the owner of the legal title, and if a chancellor would not decree a specific performance by the said Latimer, he could not so decree against the defendant.
    Answer: “ If Rider procured the Latimer title without fraud, we answer this point in the affirmative; but if he obtained it by fraudulently representing himself to be the owner of Jacobs’ interest by a tax sale when they were joint owners of the whole, or if the money had been furnished Rider by Jacobs to pay the taxes and he did not pay them, but suffered the land to be sold and then got the- deed assigned to himself, he could not hold the title thus procured to the injury of Jacobs or his heir, and neither he nor his heir would be guilty of laches till he or she had the means of discovering the fraud.”
    5. The plaintiff’s claim being founded on a contract with the executors of George Latimer, dated the 22d day of March, a. d. 1837, on which, after the 3d day of August 1833, neither the plaintiff nor her ancestor paid any purchase-money, nor any taxes, nor took possession, nor did any act indicating an intention to perform said contract, and the defendant on the 9th of June 1849 purchased the land from the executors of Latimer, and after that took possession and improved the same, so that it is greatly increased in value, the plaintiff has been guilty of such laches that a chancellor would not decree specific performance, and he cannot recover.
    Answer: “ Whether the facts alleged in this point are true or not, is for the jury. But if the plaintiff and her father lay still, and did no act indicating an intention to fulfil the contract, the law is as stated, and we answer it in the affirmative.”
    5. If the jury believe that Martin Jacobs furnished money to the defendant to pay the taxes assessed upon the land and he did not do so, the purchase by him of the land from John Philliber would make him a trustee for said Jacobs, and the 6th section of the Act of the 22d April 1856 interposes a bar to a recovery.
    Answer.: “We answer the first part of this point in the affirmative ; but the Act ,of 1856 would not be a bar to the plaintiff’s recovery, unless she or her ancestor had notice of the fraud five years before suit brought, or might have discovered it with reasonable diligence.'”
    6. If the jury., under the evidence, find that by the purchase of the land on the 9th -of June 1849, the defendant became a trustee for plaintiff’s ancestor of the east half of said land, that he took possession and made improvements thereon in 1849,1850, 1851 and 1852, and then sold 100 acres thereof to Dietrick, who in January 1853 took possession, and continued to reside and improve thereon until the commencement of this suit; also, that the defendant put his deed on record on the 28th of September 1854, these are such facts as affect the plaintiff with notice, and the 6th section of the Act of 22d April 1856 will prevent a recovery.
    Answer: “ The recording of his deed by the defendant from Latimer is neither notice to the plaintiff 'nor is it a fact from which notice may be inferred, nor is a rumor of such deed a fact from which the plaintiff by due diligence may obtain information of the existence of a hostile title. If the evidence is believed, Jacobs died in the summer or fall of 1849. In his lifetime had he notice of such hostile title ? If not, might he have discovered it with reasonable diligence? In order to affect him with this notice, ‘ there must be some act, some declaration from an authoritative source, which a person would be careless if he disregarded, which is necessary to put a party on inquiry and call for the exercise of reasonable diligence.’ At the time of the decease of her father the plaintiff was a minor, and we recollect of no notice to her that she would be bound to regard, or that could reasonably put her on inquiry.”
    The court further charged: * * * '

      “ The plaintiff offered the deposition of Anna Martha Denhart, taken on a rule of this court at Pittsburg, on the 23d day of July 1861, to which the defendant’s counsel objected, and offered another deposition of the same witness, taken on the 13th day of July 1862, to show that certain facts she had testified to in the former deposition were obtained by hearsay from Jacobs, the plaintiff’s father, and therefore were not evidence, but only the declarations of the said Jacobs. Owing to the delay and confusion likely to arise in stopping to pick out the obnoxious portions, and the testimony in the defendant’s deposition necessary to show the hearsay character of it, we allowed the plaintiff to read the whole of the deposition, and then the defendants having given in evidence their deposition of the same witness showing that part of her former testimony was hearsay, we instruct you that the part recited in defendant’s bill of exceptions is not evidence, should be carefully excluded, and have - no effect on your minds in making up your verdict.” * * *
    The jury found for plaintiff 50 acres of land, lying east of the line between the Martin Jacobs lot and the John Eider lot, as run by James Winslow, in 1838, and west of the west line of the Philip Dietrick lot.
    The defendant took a writ of error.
    He assigned for error :—
    1. Admitting the plaintiff’s deposition of Anna M. Denhart.
    2, 3, 4, 5, 6. The answers to the defendant’s points, as given above.

      Gr. A. Jenhs (with whom were Arthurs, Jenhs Clark), for the plaintiffs in error.
    Incompetent evidence should be excluded as soon as incompetency is discovered: Nash v. Gilkeson, 5 S. & R. 352; Shaeffer v. Kreitzer, 6 Binn. 430; Ingham v. Crary, 1 Penna. R. 389; Delaware & H. Canal Co. v. Barnes, 7 Casey 193; Ewing v. Alcorn, 4 Wright 492. On the other errors the plaintiffs in error referred to the former reports of this case: 1 P. F. Smith 377; 9 Id. 167.

      David Barclay, for defendants in error.
   The opinion of the court was delivered, October 23d 1871, by

Agnew, J.

The objection.to the reading of the deposition of Anna M. Denhart cannot be sustained. The deposition was taken on the 23d of July 1861, and was unobjectionable on its face. The defendant alleged that certain portions of it were only hearsay, and to show this offered a deposition of the same witness taken on the 7th of September 1867, after a lapse of six years. The court declined to suspend the reading of the deposition of 1861 to hear that of 1867, taken by the defendant. Clearly this was a matter of sound discretion, not an error. In a proper case a court may hear an objection from the opposite side to exclude offered evidence. But certainly where a deposition has been fairly taken, and the matter testified to is on its face unobjectionable, a court might well hesitate to exclude it on evidence taken by the opposite party six years afterwards, and when a change of circumstances or other influences may have operated to affect the feelings of the witness or his mind or memory. It 'would be more conducive to justice in that case to hear the whole evidence, and then exclude the testimony by an instruction to the jury, if the circumstances warrant it. It is said this course may tend to mislead the jury by biassing their minds with that which will turn out to be incompetent. But certainly we are not to suppose the jury will disregard the peremptory instruction of the judge to exclude it as incompetent. Besides, it is not different from many other matters of evidence which appear to be competent when given, and in the subsequent part of the cause turn out to be incompetent. It is every-day experience in the’ trial of causes that testimony in chief is made to appear to be incompetent by the cross-examination, and yet it is in before the jury. We discover no abuse of the discretion of the court in this instance.

The second error is without foundation, the point of the defendant being affirmed, and the opinion of the court as to the right weight of the evidence did no injury, for the jury evidently found the fact of a partition by the Winslow line, as appears by their verdict.

The third and fourth errors are equally unfounded, both of the points being affirmed. Of the qualification the plaintiff in error had no right to complain. The case turned on the question of fraud in the defendant in obtaining the legal title from the Latimers, which would prevent him from standing in the shoes of the vendors, and raising the question of a right to specific performance. As a general proposition, a party is entitled to a full and unqualified answer to his point. But when the point may mislead, if not qualified, or when the evidence demands it, it is not only the right but the duty of the court so to qualify the answer as to turn the attention of the jury to the true question in the cause. It is a mistake to suppose that the course of justice must be turned aside by ingenuity in pointing the judge. He is bound to hold the balance in an even poise.

The fifth assignment of error in effect asks us to reverse our former decisions in this case, for which we see no reason.

The sixth and last assignment presents the only serious question. The defendant’s seventh point asked the court to say that if the defendant became a trustee for the plaintiff’s ancestor of the east half of the tract, went into possession in 1849, and made improvements in that year and down to 1852, then sold 100 acres to Dietrick, who went into possession and made improvements, and continued to reside on the land until the bringing of this suit, the defendant having recorded his deed in 1854, that these facts affect the plaintiff with notice, and the 6th section of the Act of 22d April 1856 will bar her recovery. When this case was here the last time (see 9 P. F. Smith 167), it was decided that the court below erred in holding that the recording of the defendant’s deed was sufficient to put the plaintiff on inquiry. The question now raised is, whether possession of the land from 1849 onward, accompanied by valuable and extensive improvements, together with a title of land to -which they can be attributed, are notice in law of the trust, or are such facts as would enable and require the plaintiff, by reasonable diligence, to have discovered it. But the true question is, not whether these facts are sufficient to bring home a knowledge of a trust or to lead to its discovery by reasonable diligence, but whether they are notice in law of the fraud, or would have led to its discovery by reasonable diligence. By the 6th section of the Act of 22d April 1856, “ no action shall be maintained * * * to enforce any implied or resulting trust as to realty but within five years after * * * such trust accrued with the right of entry, unless * * * such trust shall have been acknowledged by writing to subsist, by the party to be charged therewith within the same period. Provided that as to any one affected with a trust by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same. * * * And provided that any person who would be sooner barred by this section shall not be thereby barred for two years from the date hereof.” Had there been nothing in this case but a trust, resulting from the relation Rider held to Jacobs as his co-tenant in taking the legal title to himself, doubtless the point should have been affirmed, for Mrs. Maul, the only child of Jacobs (who died in 1849), having arrived at full age in December 1855, before the passage of the Act of 22d Api-il 1856, would have been bound to bring her action within the two years allowed in the second proviso. Had there been no fraud, the facts stated in defendant’s seventh point were sufficient to put her upon inquiry as to the alleged trust, and to require her to bring her action in season. But supposing her to have been duly prompted by them, and that she had made inquiry of him as to his title, she would have discovered from him nothing more than that he had bought in the treasurer’s deed from John Philliber, on the 9th of May 1842, that he had taken a. new contract from Mr. Gaskill on the 9th of June 1849, and obtained bis deed from the Latimers in 1853. But it is not to be supposed that he would have disclosed his own fraud — that he would have told her he had money in his hands to pay the taxes when the land was sold, that he had procured the original article from Jacobs on a false pretence that he needed it to borrow money, and that he had led Mr. Gaskill to believe that Jacobs’s title was gone by the treasurer’s deed, and was abandoned by Jacobs himself, and that he had thus induced Gaskill to give him a new contract on delivering up the old one he had falsely obtained from Jacobs, and to make him a deed on payment of the balance due on the original contract. Nemo tenetur aeousare seipsum. Yet these are facts it was necessary that the plaintiff should discover in order to reach the defendant’s alleged fraud, and it is very clear that the possession and deed of the defendant would not in themselves lead her to a knowledge of them. The clue to find them was to be sought for elsewhere, and there is no evidence that she found it five years before she brought this action. We discover no error in the answer the learned judge gave to the point.

Judgment affirmed. ‘


text:
    Vernon Township Road.
    1. A road was laid out and confirmed nisi at February Term and absolutely at April Term. At the next term, and before the road was opened, a petition was presented setting out, that part of it was inconvenient, &c., and asking a view to make alterations, which was granted. Held, 1. That it was a petition to change or vacate, and without authority before opening. 2. The petition should have been for review. 3. As a review, it was too late, not being at or before the next term after the first report.
    2. The report of the second view changed the route. Held, that although the petition was signed by a majority of the original petitioners, it did not save the proceeding as upon an unopened road under 18th section of Act of June 13th 1836 or 1st section of Act of May 3d 1855, those acts authorizing only the annulling or vacating of the road, not reporting another.
    3. Augusta Township Road, 5 Harris 71, approved.
    October-1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Wildiams, JJ.
    Certiorari to the Court of Quarter Sessions of Crawford county: No. 160, to October and November Term 1870.
    On the 19th of June 1868 (to June Sessions 1868, No. 8), a petition of inhabitants of Vernon township was presented, setting out that part of a road running from the “ Dunham road” was inconvenient, &c., and praying “for a view to change the location of said road between said Dunham road and a point westwardly on said road, distant about one hundred rods where said road turns and takes a north-westerly direction so as to obviate said crook or jog, and to widen said road to a uniform width with that part of the road east of the Dunham road, and running to French creek to what was known as Roger’s ferry.”
    The court accordingly appointed viewers, who reported that they had changed the location of the road “ so as to straighten the crook thereof, &c., causing the same to run straight and to be of even width with the balance of the road extending eastwardly to French creek; the bearing thereof being south seventy-seven and a half degrees west, and the distance nineteen hundred and eighty-seven feet, and we do return the same for public use.”
    On the 10th of February 1869, the report was confirmed nisi, and the road was ordered to be opened 50 feet wide. On the 23d of April 1869, the road was confirmed absolutely.
    On the 21st of June 1869, a petition of citizens of Vernon township was presented, setting forth “ that the road leading from the Dunham road, * * * for the distance of about one hundred and ten rods, is inconvenient, useless and burdensome as now laid out,” and praying for the appointment of viewers, “ to view the road and make report of such alterations as they may make, to the next term of this court.” On the same day viewers were appointed to view, and jf they should see occasion, “ to lay out the same,” &c.

      On the 16th of September 1869, the viewers reported that * * * “ having fully and impartially viewed the route proposed in No. 8, June Sessions 1868, beg leave to alter the same from the red line as indicated in the annexed draft to the black line which indicates the old worked road. * * * The undersigned, therefore, report in favor of altering the road of the view as reported in No. 8, June Sessions 1868, to the old worked road or track, making the south side of the old worked road, &c., * * * the south line of the road as now laid out by us, and vacate all ground south of said south line, all of which we recommend as being less expensive or requiring no grading or filling up, besides shortening the road and making a less turn at the western end of our view, which, in our opinion, will better serve the public requirements,” &e.
    September 16th 1869, the report was confirmed nisi, and ordered to be opened 50 feet wide.
    September 16th 1869, exceptions were filed to the report, viz.:
    1. The court had no jurisdiction in this case.
    2. The petition is not for a review, nor for vacating an unopened road by the majority of the original petitioners.
    April 18th 1870, the exceptions were overruled, not being filed as required by the rule of court.
    May 16th 1870. Order to open issued.
    The proceedings were removed to the Supreme Court by certiorari.
    The errors assigned there were: — Overruling the exceptions and ordering the road to be opened.

      D. M. Farrelly and H. L. Richmond Son, for certiorari,
    cited Millcreek Township Road, 5 Casey 195; McConnell’s Mill Road, 8 Id. 285; In re Milford, 4 Barr 303; Church Road, 5 W. & S. 200; Acts of June 13th 1836, § 23, Pamph. L. 558, 2 Bright. Purd. 1276, pl. 32; May 3d 1855, § 1, Pamph. L. 422,; Id. pl. 28; Liberty Alley, 8 Barr 381; Greenwich Township, 1 Jones 186.

      Joseph Shippen, contra.
    Acts of June 13th 1836, §§ 18, 19, Pamph. L. 558, May 3d 1855; Pamph. L. 422, 2 Bright. Purd. 1276, pl. 26, 27, 28; Kyle’s Road, 4 Yeates 514; Ross Township Road, 12 Casey 87; Augusta Township Road, 5 Harris 71.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

This mongrel proceeding cannot be supported. The original petition, No. 8, June Sessions 1868, was a proceeding to change the location of so much of a road running westwardly from the Dunham road as lay between the Dunham road and a point westwardly about one hundred rods from the Dunham road, where the road to he changed turns and takes a north-westerly direction. On the 16th of February 1869, the report of the viewers laying out a new road in a single straight line, at a bearing of 77J degrees, 1987 feet, was approved n, and the width ordered to be 50 feet. The final confirmation took place on the 23d of April 1869. At the next term, on the 21st of June, a new petition was presented, setting forth that the road leading from the Dunham road in a north-westerly direction, for the distance of about 110 rods, was inconvenient, useless and burdensome, as then laid out. The road thus asked to be altered as inconvenient, useless and burdensome, had not in fact been opened, no opening order having issued on the former report as finally confirmed. As an original proceeding to change and vacate, which the second petition clearly was, it was without authority and irregular; the new road, as laid out by the former viewers, not being opened either in whole or in part, according to the 18th section of the Act of 12th June 1836, or the 1st section of the Act of 3d May 1855, Purd. Dig. 873, pi. 24-26. The proper proceeding was not a petition to change and vacate, as inconvenient, useless and burdensome; but a petition to review, upon which the viewers could have laid out and returned another route, thus leaving the court at liberty to adopt the report of the viewers, or that of the reviewers, as it might seem best to them. This is thé only mode of making a change from the route of the original view before the road is opened in whole or in part; and must be applied for at or before the next term, after the report is made upon the first view: Section 25, Act 13th June 1836. But fit . is said the second petition was signed by a majority of the petitioners for the first view. That, however, cannot save the proceeding, for the viewers here, instead of reporting simply that the road laid out by the first viewers should be annulled and vacated, laid out and reported another route. This they could not do, for the only object in the proceeding under the 19th section of the Act of 1836, by a majority of the petitioners is to enable them, before the road is opened, to undo what they had done. As remarked in the Road in Augusta Township, 5 Harris 74, when this proceeding is instituted, and a report made adverse to the proposed road, its effect is to reverse all that had been done; for the object is to permit those who initiated the movement to undo what they aver was mistakenly done at their instance, leaving others the privilege of reviewing the project as original petitioners. When carefully examined, the case in the Road in Augusta Township will be found to rule this.

The proceedings under the petition at No. 11, June Sessions 1869, are therefore reversed, and are hereby ordered to be quashed at the costs of the petitioners, leaving the proceeding at No. 8, June Sessions 1868, to stand as finally confirmed by the Court of Quarter Sessions.