author: Bell, J.

text:
    Naglee v. Ingersoll.

    The grantee of land in fee, out of which a rent is reserved, in the nature of a rent service, by an indenture, is estopped denying title in the grantor to whom the rent was reserved. And if the grantee enter upon the whole of the lot conveyed, he is liable for the rent, though the grantor fail in showing title as set out in his declaration.
    An attorney at law cannot by agreement bind his client’s title to land, so as to work a conversion. '
    Nor will an agreement to refer a question of title, and accept a pecuniary compensation for an unlawful encroachment, the extent of which is to be determined by the referees, work a conversion, until an award is made. Hence, such an agreement would be no defence to an action for rent reserved under a subsequent conveyance.
    Tenant for life, under a strict settlement, having power to grant in fee on ground-rent, cannot bind the trustees or remainder-men by covenants, unless in pursuance of the power. But his agreements are evidence of boundaries, and of the situation and condition of the property at the time of the grant.
    To what particular piece of land descriptive words in a deed refer, is a question for the jury.
    To estop privies by a recital, it must be distinct, not general; hence, where there was a grant of land “along low water-mark to the mouth of a creek, before it was diverted and thrown to the north by the erection of wharves,” die parties and privies are not estopped from denying that there was any encroachment by the creek which interfered with the possession of the grantee.
    No right or properly in the privilege of erecting a wharf below low water-mark exists in the riparian owner on a navigable river. Hence, where, by reason of the position of other wharves, or the diversion of the course of a stream, the grantee, purchasing for the purpose of wharfing, is disabled from erecting a wharf of the entire breadth of the lot conveyed; he cannot, therefor, claim an apportionment of his rent. Such owner has a right to build to low water-mark; beyond that, the exercise of a privilege is dependent upon license from the state, or those to whom it has delegated that authority.
    A debt due by a husband, or one which he had agreed to pay, cannot be set off against the claim for rent due to his wife’s separate estate, although she has authorized him to receive the rents without accounting; and in the bill rendered by him, a deduction was made of part of the debt.
    Interest is recoverable in covenant for rent, unless there be special grounds for an exception to the rule.
    Pleas going to the whole of a count or declaration which answer only a part, are bad on general demurrer.
    Pleas by a tenant, that by an agreement of Ihe tenant for life, under a settlement under which the demise was made, and by the adverse possession of a stranger, and by the tortious acts of such tenant for life, he had been kept out of possession of part of the land, are answers to part only of the count for rent.

      Nil habidt in tenemetitis, to a count in covenant for rent reserved by indenture, is bad on general demurrer.
    The plea of eviction by a stranger under title paramount, must aver it to have been by title existing before the demise, and that there was an entry by the evictor.
    In error from the District Court of Philadelphia.

      April 16, 19, 21. This was an action of covenant on a ground- . rent deed, in which the principal question below was, whether the defendant had ever been able to get possession of a part of the land granted. The property was situated in the northern angle formed by the river Delaware and Cohocksink creek. It was alleged, that the creek having been diverted from its course by wharves erected on the southern side, and having been made a public highway after such diversion, a long time prior to the grant, by these means a part of the land purporting to be conveyed was covered by the creek, and lost to the defendant. For so much as was thus lost, the defendant resisted the claim for rent. The narr. recited seisin in Turner Camac and Sarah his wife, of a lot of ground, beginning at low water-mark in the river Delaware, on the south side of Marsh street, “thence extending southwardly along the said low water-mark to the mouth of Qohocksink creek, as it was before diverted from and thrown to the northward of its original course, by the 'erection of wharves on the southwardly side, one hundred and fifty-nine feet, more or less,” thence up the creek to Penn street, and along Penn to Marsh street, thence to the place of beginning. It then averred a conveyance in 1818 by deed indented, in pursuance of a power reserved in a settlement upon Camac and wife, &c., to Naglee, in fee, of the lot above described, reserving a ground-rent of $487 to the person or persons entitled to the estate under the provisions of said settlement; and that defendant entered and became seised. The narr. then, deduced the title to plaintiffs, as follows: Mrs. Camac dying in 1825, the estate under said settlement vested in William Camac, and Mary, intermarried with Philip Ricketts, as tenants in common in tail, subject to the life-estate of Turner Camac. In 1830, T. Camac dying, the trustees, under the settlement, conveyed to William Camac and Mary Ricketts in tail. In 1830, Riclcetts and wife conveyed to plaintiffs by deed, barring the entail; and by deed of partition with William Camac, the rent in question was allotted to the plaintiffs in trust. The breaches of covenants laid were non-payment of the ground-rents accruing since the death of Turner Camac. To this defendant pleaded covenants performed. 2. Payment of the rent. In the 3d plea, he traversed the allegation of entry by defendant; the deduction of title, the seisin of the trustees under the settlement, and that the rent was conveyed to the plaintiffs by the deeds set out in the narr. On these, issue was joined. He further pleaded, 4thly, That the south-east portion of said lot, of the annual value of $200, had, for thirty years before the execution of any of the said indentures, been in the adverse possession of Clarkson and Hillegas; that an action of ejectment had been commenced in 1806 between those under whom plaintiffs claim and the devisees, &c. of said Clarkson and Hillegas, which was referred, &c. to ascertain the amount of encroachments, if any there had been, by the erection of a wharf on the south side of Cohocksink creek; and if any encroachments had been made, to report the sum payable therefor; on payment of which the plaintiffs in the action were to release then- rights : by which adverse possession and agreement, which was made a rule of court, the defendant. had been evicted from and kept out of the premises. 5. Eviction by title paramount against the will of de-* fendant. 6. That by the tortious act of Turner Camac and wife, defendant had been kept out of the enjoyment of parcel of the land of the value of -$200 per annum. On demurrer to these pleas, the court gave judgment for the plaintiff.
    i The title, as given in evidence, was an allottment of the premises to Sarah Camac by partition in 1774; a sheriff’s sale to Benjamin Morgan, in 1809, under a mortgage by her; an indenture of February 6,1812, between Morgan of the first part, Camac and wife of the second, and trustees of the third part, conveying to the trustees the premises sold by the sheriff to Morgan, “ excepting all the southerly part” of the lot in question, “originally bounding on Cohocksink creek, which hath been wrongfully claimed by Clarkson and Hillegas, and now in dispute with their heirs,” in trust for Turner Camac for life, remainder to his wife for life, remainder to their childreri in common in tail, remainder to the survivor of said Turner and Sarah in fee; with power to said Turner and Sarah, and the survivor, and afterwards to the trustees during the minority of children, to demise at the best rent; or to grant in fee, reserving rents to the persons entitled to the land in the event of no grant being made. On the 5th June, 1813, the conveyance was made by Turner Camac and wife to the plaintiff, which is correctly set out in the narr. as above. In place of the usual covenant to build, there was a covenant to erect a wharf. In 1830', the estate of the trustees was conveyed to William Camac and Mary Ricketts, children o,f Sarah and Turner, in tail; and the estate of Mary Ricketts was conveyed to plaintiffs, to the separate use of Mrs. Ricketts, by deeds mentioned in the narr. In the same year, Ricketts and wife, by deed reciting the conveyances already mentioned, and also reciting a deed of Feb. 6th, 1812, by Morgan to T. Camac and wife in fee, for the lots, lands, &c. excepted out of the conveyance of February 8,1812, conveyed all the property therein mentioned to trustees for the purpose of barring entails; but the recited deed of February 6th was not given in evidence.

      The defendant also proved a sealed agreement between Turner ■ Camac and defendant, of the same date with the conveyance, reserving the ground-rent, which, reciting the execution of that deed, and that a controversy existed between said Turner and the owners of the wharf on the south of the creek, whereby its course and true place for entering the river could not be ascertained, nor how much front on the river the defendant could possess and hold under that deed; it was thereby agreed that said Camac and wife would not alien the said rent until the controversy was settled, and the exact front to be possessed and enjoyed by defendant ascertained;' and that no more of the rent should be demandable than at the rate of $2 75 for every foot of front actually in the power or possession of defendant under said conveyance: defendant covenanting to carry on the controversy, have the true mouth of the creek and boundary of the lot ascertained, and possession rendered to said Turner, who was to defray the expenses of recovering the possession and damages.
    He further gave in evidence the record of an action of trespass and ejectment in 1806, by R. Penn and wife, and Turner Ca-mac and wife, who had previously to 1774 been tenants in common of the premises, plaintiffs against the representatives of Clarkson and Hillegas, with the agreement to refer mentioned in the plea, which agreement was signed by the attorneys of the parties. Also the license of the board of wardens in 1796,'authorizing the extension of Clarkson and Hillegas’s wharf two hundred and twenty feet from them wharf as it then stood, into the river Delaware; and the act of 1797 declaring Cohocksink creek a public highway of forty feet navigable width. He then gave evidence that Clarkson and Hillegas’s wharf was built in 1797, extending into the stream at such an angle as to turn the creek to the northward; and that at the present low water-mark, the distance from the north line of that wharf to the north line of defendants’ lot, excluding the forty feet for the creek, is one hundred and seventeen feet nine inches. There was evidence that the river front gave value to the property — that being three or four times the value of the front on the street. There was also evidence as to the precise location of low watermark in 1813, some witnesses placing it much nearer the shore than at the present time. It will be observed that in consequence of a bend in the river at that place, and the angular projection of Clark-son and Hillegas’s wharf, defendants’ front at low water-mark is longer as low water-mark is nearer to the shore.
    There were, in addition, two questions raised on claims of set-off, of which notice had been given, but the evidence was rejected by the court. The first was a debt contracted by Turner Camac with defendant prior to the time the rent sued for was accruing. In support of this, defendant offered the written agreement of William Camac and William Ricketts, by which each party agreed to become responsible for one-half the debt.
    The second was a similar claim for a debt contracted by William Ricketts after the death of Camac. To support this, defendant offered to show that'Ricketts was authorized by his wife to collect the rents, &c. due on her separate estate, without requiring an account from him; that he, as the authorized agent of his wife and the trustees, sent a bill for the first half year’s ground-rent to defendant, in which there was a credit given for part of this debt claimed to be set off.
    The Court (Jones, J.) instructed the jury that it was a question of fact for them whether there had been an encroachment by the diversion of the creek, in consequence of the erection of Clarkson and Hillegas’s wharf. If, by reason of the existence of such an encroachment at the date of the deed, the entire river front at low water-mark conveyed in the deed was not obtained, the defendant had a defence pro tanto. But if low water-mark was at that time so far within the end of the wharf that there were one hundred and fifty-nine feet front, as conveyed, the plaintiff was entitled to recover. Whether the agreement to refer in the action by Penn et al. referred to this encroachment, was for the jury. That the agreement by Camac of June 5, 1813, could not bind the estate, his power being exhausted by the sale; but it was to be received as evidence merely of the state of the premises at that time. For the same purpose, and for that only, was the action by Penn and others admitted. That agreement being signed by attorneys did not amount to a conversion, which would be beyond their power. So as to the license of the wardens, though they had no power above low water-mark, yet that was not conclusive evidence as to where low water-mark was.
    As to the interest, if the jury found for the plaintiff, his honour said, the rule is, that rent carries interest from the time it is due, unless it may be inferred from the conduct of the landlord that he does not mean to insist upon it; or unless he acts in an oppressive manner when the tenant is willing to pay what is justly due, or there are other equitable circumstances making the charge improper : that in the evidence there appeared no circumstances to debar this claim. The judgment on the demurrers, and the rejection of the evidence of set-off, constituted the first six errors assigned. There were also thirteen errors assigned in the charge; as to the effect of the agreement by Camac, of the record of the ejectment, and of the wardens’ proceedings; that there might be recovery if possession was taken, notwithstanding the exceptions in the deed of 1812; that the question was, where was low water-mark in 1818, and not whether defendant got his whole front; as to recovery of interest; in leaving to the jury to decide whether the proceedings in the ejectment, the exception in the deed of 1812, and the agreement with Camac, had any reference to the lot conveyed to defendant. There were also exceptions for not answering defendant’s points; but as these propositions are negatived in the charge as here stated, it is not necessary to state them at length.
    The case was argued at a former term by Oadwalader and Mattery, for plaintiff in error, and Williams, for defendant; and now by
    Cadwalader, for plaintiff in error.
    The principal question was the position of the southern boundary line, which, long before the conveyance in question, had become fixed and permanent, by the erection of the wharf to the south, and the act of Assembly making the creek as it then flowed a public highway. That a portion of the tract was encroached upon by the creek at a very early period, is conclusively shown by the evidence, which can refer to this only, for all the other boundaries are fixed and permanent. It was this encroachment which deprived the defendant of a part of the essence of the grant, viz. the wharfing privilege. That this privilege was the object of the purchaser, is shown not only from the evidence of relative value, but from the covenant to erect a wharf as a security for the rent. This encroachment being thus shown to exist, it is equally clear that at the time of defendant’s conveyance the light of the grantors was gone. The lapse of time alone was sufficient ; but, in addition to that, there was the agreement to accept a pecuniary compensation from Clarkson & Hillegas, which concluded the right to the realty.
    The plaintiffs, by excluding the deed of Camac, have failed to show any title to or grant of this part of the land, since it is expressly excepted out of the conveyance by Morgan. If they have a conveyance, they refuse- to produce it, because it would make against themselves. This deduction of title is expressly traversed by the plea, and has not been proved. That deed of Camac was evidence, either by virtue of his estate or in execution of his power, that the grant was of the land encroached upon. The judge therefore erred in submitting it as a question to the jury,whether there was such an encroachment on the subject-matter of the grant.
    Though the fifth plea might have been specially demurrable, yet the want of showing title in the evictor cannot be set up on general demurrer. It is a substantial defence substantially laid: Franciscus v. Reigart, 4 Watts, 116; Ingersoll v. Sergeant, 1 Whart. 352. It is sufficient to aver eviction by title paramount even in case of a tenancy for years, and much more so where the grant is in fee; in which case also the party is not concluded pleading nil habuit, &g. This rule prevails in leases for years, in consequence of the subordinate title of lessee, -being no more than a bailiff.
    The plaintiffs, claiming under an indenture reciting the encroachment, were estopped denying its existence: U. S. Dig., Estop. by Deed; Parker v. Smith, 17 Mass. 413.
    There was also a pervading error in the court in considering the question to be, whether defendant at any time got the required number of feet front at low water-mark. It was the appurtenant or incidental privilege of wharfing out into deep water, which was the very object of the purchase. This privilege, it is submitted, passes by the grant of land to low water-mark. To build wharves' below that, is a right at common law, and under the statutes relating to wardens. If a license from the crown is obtained, it is no purpresture: Hale de Port. 85; and it is lawful, unless found to be a nuisance: King v. Russell, 6 Barn. & Cres. 566, overruled by King v. Ward, 4 Ad. & Ell. 384. This right, it must be admitted, belongs to the riparian owner: Chambers v. Furry, 1 Yeates, 167; Cooper v. Smith, 9 Serg. & Rawle, 33; 8 Watts, 434. And there can be no license to a stranger to use this shore for any purposes of the river; it is exclusively in the owner of the soil: Ball v. Herbert, 3 Term Rep. 253; Hale, 51, 76; Blundell v. Catterall, 5 Barn. & Al. 268. It is like the right of fishing in navigable waters, which was held to be incidental to the riparian owner, who alone can land a net: Bennett v. Boggs, Bald. 60; Hart v. Hill, 1 Whart. 124. This right passes to the assignee: Jones v. Janney, 8 Watts & Serg. 442. The acts relating to fisheries recognise the right — 1786: 2 Smith, 370. The charter, art. 6, gives the royal franchise, as to ports, to the proprietary; and in his concessions of 1681, this wharfing privilege in the riparian owner is recognised, as also in the grants of the bank lots in 1689 and 1694. In the second clause of the city charter, it is limited by the discretion of the city authorities. The legislation since the Revolution is to the same effect; acts, 1784, 1788, 1793, 1803, 1818; it being apparent that by subsequent accretions, according to the finding of the jury, the river front and wharfing privilege had been narrowed, the court erred in treating this loss or eviction as an immaterial question.
    As to the pleas, the fifth is to the whole narr.; so is the sixth, for an eviction of a part of the land by the tortious act of a party suspends the whole rent; and the tortious acts averred in the fourth plea are by parties in privity with the plaintiffs. It would be exceedingly dangerous to hold that such acts of the tenant of the freehold will not bind by reason of a family settlement. There are many cases supporting this effect of the deed, which js but a recognition of the boundary: Saunders v. Annesley, 2 Sch. & Lef. 101. So, where an account was taken against .a tenant for life : Leonard v. Sussex, 2 Vern. 527. As to the set-off, there cannot be a clearer case of an executed contract by a feme covert, as to the rents accrued on her separate estate. The money was her husband’s, having been given to him, and the debt was recognised by him as a subject for deduction: 2 P. Wms. 82; 2 Ves. 663; 2 Ves. jun. 715; 4 Ves. 145; 11 Ves. 225; 16 Ves. 116; 4 Sim. 588; 3 Whart. 57.

      Williams, contrá.
    By the various conveyances, the whole title in the lot in question Had become vested under the settlement immediately prior to the conveyance to Naglee. This property, at that time, being the separate estate of Mrs. Camac; the exception in the deed of Morgan, and the ejectment, which was by the former tenants in common, cannot be supposed to have a reference to this land, which is on the north side of the creek, which had flowed in the same course for sixteen years at least, but must have reference to a claim for land on the south bank. That defendant got the entire front conveyed at the then low water-mark, is found by the jury, and it is capable of demonstration otherwise. There is no conveyance of a wharf privilege, or any reference or covenant as to any right beyond that line. Looking at the evidence of the condition of this adverse possession, can it be supposed a purchaser would have bought such a claim — one which it was morally certain could never be enforced ? The collateral agreement with Camac shows this; it was to be a recovery for him ; he was to get the possession, and the damages, which it is now asserted, had been conveyed to defendant. As a contract, that deed, if it referred to the corpus of the previous grant, was only binding on Camac personally, not on the persons to whom the estate was reserved under the settlement. He was incompetent thus to bind the remainder-men even by the deed in execution of the power: 2 Sugd. 881. The agreement in the action worked no conversion; it was signed by attorneys at law. Nor could their principals have produced that effect. They were tenant for life in right of his wife, a feme covert and mortgagor: Leigh & Dalz on Eq. Conv. 4, 15, 17. Besides, only the land ascertained by the referees was to be converted, and they have not acted.
    As to the set-off, the defendant had showed no act of assent to the proposed deduction. There is no implied gift of the rents, &c. to the husband, but where they have been actually received, and the wife and family supported. The cases cited on the other side all go upon this principle. That in 11 Yes. 225, is clear; there the husband was held accountable for the last year’s rents. As to the interest on rents, he cited Obermyer v. Nicholls, 6 Binn. 159; Bantleon v. Smith, 2 Binn. 146, where it is put on the right of entry, which was in this deed: Buck v. Fisher, 4 Whart. 516; Dougherty’s Est., 9 Watts & Serg. 189. The pleas were defective. A partial eviction, if- by a stranger, only apportions the rent, while this professes to answer the whole count: 1 Chit. Pl. 509; Steph. 233; Lattin v. Vail, 17 Wend. 188; Britten v. Webb, 2 B. & C. 483. If the eviction was by the lessor, it must be specially set out: 1 Lilly Ent. 142; 5 Went. 88; a sheriff’s sale of defendant’s estate would create a title paramount and fulfil the plea. The title of the evictor must be averred to have been ante dimissionem: 1 Show, 70; Wotton v. Hale, 2 Saund. 181 a; and the distinct act of eviction must be alleged: Ibid.; Corny. Rep. 228; and this defect is bad on general demurrer: Brookes v. Humphreys, 5 Bing. N. C. 55; Fraser v. Skey, 2 Chit. 646. The plea of nil hdbuit in tenementis is bad: Com. Land and Tenant, 539; Palmer v. Ekins, Strange, 818; Ld. Raym. 1550.

      Reply.

    The fallacy is in omitting to notice the incorporeal right which was conveyed and lost by the public highway turned on our land, which works an apportionment: Cuthbert and Kuhn, 3 Whart. 357. It was the ultimate line in deep water, to which the purchaser might acquire the right which was the really valúa-, ble part of the grant. There is no pretence for the argument that the exception and the deed of Camac had reference tfi land on the south, side of the creek. That was the southern boundary of the whole estate, of which partition was made in 1774.

      The demurrers are not to he judged of by black-letter law, or even by cases shortly after the statute of Ann. The question on general demurrer is, whether the defence is so broadly set out, that issue may be taken upon it.

      Dec. 13.

         This case was argued at the last term, but the judgment was not then given.

   Bell, J.

The lot of ground conveyed by Camac and wife to the defendant, is described in the conveyance as “ beginning at low water-marh on the river Delaware, on the south side of Marsh street, &c., thence extending southwardly along the said low water-marh, to the mouth of Cohocksink creek, as it was before diverted from and thrown to the northward of its original course, by the erection of wharves on the lower or southwardly side thereof one hundred and fifty-nine feet, be the same more or less ; thence along the several courses of the said creek, on the northerly side thereof, to Penn street,” &c.

The defence principally relied on, at the trial of the cause, rests in the averment of the defendant, that, of those one hundred and fifty-nine feet fronting the river, he never had possession beyond one hundred and seventeen feet, because of the prior “ encroachment” by Clarkson and Hillegas, made under a claim of right, on the southeasterly side next the Creek. On the other hand, the plaintiffs below insisted that, looking to the line of ordinary low water, as it was in the river Delaware at the date of the conveyance to the defendant, he was let into the possession and enjoyment of the whole front of his lot, extending one hundred and fifty-nine feet along the river shore, at low water-mark, from Marsh street to the mouth of the creek, as it originally existed; and they denied any preoccupation of, or encroachment upon, any part of this front, whereby the defendant was barred of the possession. The rent issuing out of the land conveyed, and which the plaintiffs demand in this action, being in the nature of rent service, resting on the consideration of the tenant’s enjoyment of the thing granted, (Franciscas v. Reigart, 4 Watts, 98; Ingersoll v. Sergeant, 1 Whart. 337,) the learned judge, before whom the cause was tried, adopted the principle brought to view by the defendants’ second point submitted for the opinion of the court; that, if by any thing existing at the time of the deed of the defendant, he was prevented of the possession and enjoyment of a part of the property which the deed purported to convey, the amount that might be recovered against him in the action was to be measured by the quantity of land actually enjoyed by him under the deed. The jury was accordingly told that the principal point to be considered by them was, whether or not the defendant had been shut out from the enjoyment of any part of the premises in the manner of which he complained ? This inquiry seems to have been directed, by both parties, to the river shore, as it was in the year 1813, and much evidence, documentary and oral, was introduced to show the character of the shore and the point of low water before and at that time, with the view of ascertaining the extent of the possession — all of which was referred to the jury, with proper instructions. The verdict found, under these instructions, negatives the alleged fact of failure of possession of a part of the premises near the creek’s mouth, and this, of course, settles the dispute as a question in pais.

But the defendant complains that the court below erred in their refusal to instruct the jury, as matter of law, that the plaintiffs were not entitled to recover the rent for any portion of the property described in the deed from Camac and wife, which was, in fact, excepted out of the land granted by the indenture tripartite of February 6,1812, though possessed and enjoyed by the defendant. The exception referred to is, inter alia, of “all the southerly part of the lot in the plan aforesaid, marked with the number 35, originally bounded by Cohocksink creek, which hath been wrongfully claimed by Matthew Clarkson and Michael Hillegas, and now in dispute with their heirs, or some of them.” The plaintiffs deny that the portion of property thus reserved, is any part of the lot granted to the defendant; but, admitting it to be so, is there any thing in the exception which operates in law to bar the plaintiff’s right to recover the rent of the part excepted? The objection rests in the supposed want of title in Camac and wife, when they conveyed to the defendants. It appears, by the recital contained in the deed from Philip Ricketts and Mary M. Ricketts, his wife, to the plaintiffs, of April 10, 1830, that, on the 8th of February, 1812, Benjamin R. Morgan conveyed to Camac and wife, in fee-simple, all the lots, lands, &c. reserved by, and excepted out of, the indenture tripartite of the 6th of the same month, which, of course, included the portion now in question. But, setting this aside, as evidence incompetent to affect the defendant, who does not derive title under the deed containing the recital, and therefore is not in privity with it, a sufficient answer to his objection is found in the principle which estops one who accepts an estate, by deed indented, from denying the title of his grantor while he continues in the occupancy and enjoyment of the estate granted: 2 Smith’s Lead. Ca., Am. ed. 456, 470, in note; Osterhout v. Shoemaker, 3 Hill, 518. Where the action is covenant on a demise, it is within the rule that forbids the tenant to plead nil habuit in tenementis, which all the authorities agree is a bad plea, if the demise be by deed indented: Palmey v. Ekins, 2 Stra. 817; Com. on Landlord and Tenant, 538, 539; Litt. Sec. 58; Co. Litt. 47 b; a rule which, as I take it, embraces as well grants in fee, reserving rent, which is the case here, as leases for life or years: Springstein v. Schermerhorn, 12 Johns. 357. The direction to the jury, that, if they found the defendant entered into the whole of the lot described in the deed to him, and held the possession of it, the plaintiff would be entitled to receive the entire rent reserved, notwithstanding the exception made in the deed of the 6th of February, 1812, was, therefore, correct.

Another objection against the plaintiff’s right to recover the entire rent reserved, is supposed to spring from the action of ejectment, instituted in the year 1806, in the Circuit Court of the United States, by Penn and Camac and them respective wives, against the representatives of Clarkson and Hillegas, and the proceedings had therein. The defendant, assuming that the agreement to submit to a reference and the results stipulated in the event of a particular award being found, amounted to a conversion of the then plaintiffs’ interest in the land, the subject of the ejectment, into a pecuniary claim for damages, asked the court to say that thereby the subsequent possession and enjoyment by the defendant of the whole lot conveyed to him, was rendered impossible. This notion was but very faintly urged on the argument, and admits of easy refutation. There was certainly no legal conversion of the title residing in the respective wives of Penn and Camac to the land in -question, for there was no legal assurance, proper for such purpose, ever delivered to Clarkson and Hillegas, or their representatives, and it is almost equally clear that there was no equitable transmutation; for though a contract to turn land into money, made between proper parties, will be considered, in equity, as impressing it with the character of money for every purpose of disposition, I take it an attorney at law, as such, is incompetent to affect his client’s title to realty, by any agreement he may enter into, in or out of an action pending, whether directly or by submission to an award: Pearson v. Morrison, 2 Serg. & Rawle, 20; Huston v. Mitchell, 14 Serg. & Rawle, 307; Gable v. Hain, 1 Penna. Rep. 267. But were this otherwise, the agreement of the attorneys in this instance lacks that positive, explicit, and imperative character necessary to render a direction or contract effectual for the equitable conversion of property, for it depends upon a contingency which has never been executed, and now never can be: Symons v. Rutter, 2 Vern. 227; Walker v. Denne, 2 Ves. jun. 170; Leigh & Dale, on Eq. Con. 15, 16. Conceding, then, validity to the submission, as such, it remained entirely inoperative as a means of affecting or transferring the title to the land, until carried into effect by the award provided for; and the possibility of this was at an end long before the conveyance to the defendant. It follows the court was right in the opinion expressed that these proceedings did not, as contended by the defendant, render the subsequent possession and enjoyment of the land by him impossible.

Again: the defendant complains of the court below, that it refused to give other effect to the agreement of the 5th of June, 1813, between Turner Camac and the defendant, than as an instrument of evidence to prove the existence of an “ encroachment” upon the lot conveyed, as alleged by the defendant. Upon what possible ground the court could have put it, as containing covenants binding upon the present plaintiffs or their cestui que trust, or in any way prohibitory of their right to recover in this action, it is difficult to imagine. The paper is, in itself, so inartificially drawn, that it is hard to guess at all the objects the parties to it had in view at the time; but this much is certain, that it contains no covenant on the part of Camac, other than that the ground-rent reserved by the previous indenture shall not b.e assigned until the controversy respecting the alleged encroachment be settled, and that Naglee shall pay rent for no more of the ground conveyed than shall be actually in his power and possession, by virtue of the demise of the indenture, a stipulation conferring upon him no greater immunity than, as has been seen, the law secured to him irrespective of express covenant. But were it admitted that this agreement 'contains covenants and stipulations which, as against Turner Camac, would be a complete defence to an action brought for the recovery of the rent reserved, it would avail nothing against the present plaintiffs. By virtue of the indenture tripartite, Camac and wife possessed the power to demise the land, for years or in fee, reserving the rent for the use of those to whom the land itself was limited by the deed; but neither of them possessed any authority to bind the remainder-men or their trustees, by any special covenant or agreement. Those take their estate, not from Turner Camac or his wife, but under the grant in the deed, which gives the latter their estates for life with power to lease. As soon as this power was executed by the conveyance to the defendant, the authority of the tenants for life over the subject ceased; and therefore the subsequent act of Camac was altogether without effect to bind the plaintiffs, representing the tenants in tail, even though his wife had joined in it, which, as the power was to be jointly exercised by them, would seem to be altogether necessary. Something was, however, said on the argument, of the recognition of this agreement by the deed of the same date conveying to Naglee, under which the plaintiffs derive title to the rent demanded, and by which, it is supposed, the declarations and contracts of the tenant for life are made the declarations and contracts of those in remainder. But how can the deed be said to recognise that which had no existence when the deed itself was made ? for the agreement, in truth, refers to and recites the deed as an instrument then existing, and, consequently, the deed takes no notice of the agreement. But were this otherwise, it is to be recollected the deed of conveyance is the work of the tenants for life, who, neither directly nor indirectly, immediately or by reference to another instrument, could bind the other parties in interest, beyond the authority intrusted to them, which was simply to convey, reserving a rent to certain persons. The agreement was, however, properly received in evidence, upon the question of the extent of the defendant’s possession, under the rule which admits the acts and declarations of particular tenants, affecting their interests, made or done during the tenancy, as evidence against the remainder-men of the disputed fact: 2 Scho. & Lef. 101.

But it is made matter of further exception that the court referred to the jury the question, made on the trial, whether the proceedings in the Circuit Court, the exception contained in the deed of Mr. Morgan, and the agreement of Mr. Camac, referred to the lot of ground granted to the defendant ? It is not perceived how, properly, the court could have refused this. The construction of a deed or other written instrument is for the court; but the applicability of the descriptions it may contain of things dehors, being a question of fact, is necessarily for the jury, and frequently to be determined by evidence aliunde. Such was the case here, although, perhaps, the deeds and other papers contained within themselves strong evidence of the identity of the thing to which they referred.

This brings us to the consideration of the point made on the. argument in the court, ascribing to that clause in the deed made to the defendant, which alludes to the encroachment by the erection of wharves on the south side of Cohocksink creek, the quality of an estoppel. This position does not seem to have been assumed in the court below, nor is it distinctly brought to view by the errors specifically assigned here. It might, therefore, be passed without comment, but as it was much insisted on, it is thought best to notice it as a feature of the cause. The complaint is, that though the conveyance to Naglee refers to the encroachment as interfering and covering part of the land conveyed, the court left it to the jury to say whether such encroachment interfered with the possession of the defendant or not ? Doubtless the clause alluded to was received and treated as some evidence of the fact of encroachment, and consequent exclusion of a possession commensurate with the extent of the grant; but the defendant, not satisfied with the measure of vigor so accorded to it, contends it should have been held conclusive of the disputed fact. It is said the plaintiffs, as claiming under the deed, are bound by all that appears on its face. It is undoubted that a material fact, distinctly and unequivocally averred in a deed, will estop parties and privies to it from alleging the contrary; for no man, as is said by Lord Mansfield in Goodtitle v. Bailey, Cowp. 601, shall be allowed to dispute his own solemn deed. On the other hand, it has been said by high authority, that when averments are introduced by way of recital, though they are competent evidence, yet so far are they from being conclusive, they are entitled to less respect than oral confessions: Mehaffy v. Dobbs, 9 Watts, 379. Perhaps it is not easy to reconcile all the authorities upon this subject; but one rule is certainly to be extracted from them, namely, that a statement in a deed to operate an estoppel must be certain, precise, and particular, and not merely general. The rule is thus expressed in Roll’s Abr.' tit. JEstoppel, P. pi. 1 & 7, speaking of a bond: “ If the condition contain a generality to be done, the party shall not be estopped to say there was not any such thing. But in all cases, when the condition of a bond has reference to a particular thing, the obligor shall be estopped to say there is no such thing.” In Salter v. Kidley, 1 Show. 59, Lord Holt says, that a general recital is not an estoppel, though recital of a particular fact is; and in Doe d. Jefferys v. Bucknell, 2 Barn. & Ad. 278, when a party had covenanted with a mortgagee that he was “legally or equitably entitled,” a subsequent mortgagee was held not to be estopped from setting up the legal estate acquired by the mortgagor after the first mortgage, because, as was observed by Lord Tenterden, in delivering the opinion of the court, “ there is a want of that certainty of allegation which is necessary to make it an estoppel.” To the same effect are our own cases of Mehaffy v. Dobbs, supra, and Ingersoll v. Sergeant, 1 Whart. 355, 356, where it is said a party will not be estopped by tbe recital of a generality merely. If, then, in the case in hand, the objection that the admission of an “ encroachment” by the tenant for life ought not to be received to bind those in remainder, be waived, the inquiry is presented, is there any such precise and certain statement or admission as should close the mouths of the plaintiffs from alleging the truth? To my mind, the answer presents itself without difficulty. Nothing can be more general and inconclusive than the clause sought to be invested with a conclusive character. It is “ along the said low water-mark to the mouth of Cohocksink creek, as it was before diverted from and thrown to the northward of its original course by the erection of wharves.” How far the “ encroachment” infringed on the original course — whether one inch, or one hundred feet — is not even hinted at. Nay, it is not expressly averred that it continued to exist at the period of the conveyance,, nor is there any thing to show, except inferentially, that the defendant' could not, at once, have possessed himself of the whole one hundred and fifty-nine feet conveyed. Without labouring the argument, it is, perhaps, sufficient to say that the extent and continued existence of the alleged encroachment being thus left at large, was open to the inquiry of the jury, as matter of fact, both as to its continued existence and its alleged extent. It was, certainly, competent to the plaintiffs to show that it interfered not with the defendant’s possession beyond one inch, and if so, to prove it did not interfere at all; for, the inquiry once entered upon, there wTas nothing in the deed itself to limit a point at which it should be stayed.

But upon 'this point of possession another grave question has been started here. I have said that, on the trial, both parties seemed to confine the inquiry to the river shore, extending from Marsh street to the mouth of Cohocksink creek, and the charge of the court was certainly based upon this view of the subject of litigation. It is now, however, urged that the fallacy of the charge consists in the assumption, that if the defendant enjoyed possession of the whole of the river shore described in the deed, he got all that passed by the grant, though by the peculiar position and construction of Clarkson & Ilillegas’s wharf he was deprived of the usufruct of a wharf to be built in the tide-way of the river, below low water-mark, within parallel lines perpendicular to the shore. The defendant’s covenant, contained in the deed of the fifth of June, shows that the lot was purchased by him and conveyed by Camac and wife, with a view to the erection of a wharf, and the position is that the right to erect it, in the manner I have mentioned, passed by operation of law as appurtenant to the lot, the exercise of which right being rendered impossible by the previous encroachment existing on the southwardly side of the creek, the grantee is entitled to a deduction for the rent reserved to an amount proportionate to the diminution to which his wharf front in deep water has been necessarily subjected. It is difficult to resist the impression that this idea is a second thought, suggested by the failure to show an exclusion of possession at the creek’s mouth, as it was originally, for there is nothing in the record indicating that this attitude of defence was assumed below, and, certainly, the particular attention of the court was not called to it by the points submitted for its opinion. But being presented here, and urged upon our consideration, a short examination of its merits is perhaps due to the peculiarities of the case.

If the absolute right to erect a wharf below low water-mark passed by the deed to the defendant, it must have passed as something annexed to or appurtenant to the lot, absolutely necessary to its enjoyment; for there is, certainly, no language used in the conveyance itself that looks farther than the low water-mark. But an appurtenant or necessary incident of land is as much the subject of dominion and property as the land itself, and, of course, if the grantor was vested with no such dominion, the thing supposed to be appurtenant could not pass by his grant, nor shall it be intended,- in absence of express manifestation, that the parties intended it so to pass.

The inquiry, then, is narrowed to the single point, whether a riparian owner on a navigable stream can, for any purpose, assert an interest in the soil beyond low water-mark, or a determinate right issuing out of it ? This inquiry admits of but one answer. In England, and in this country, the space between high and low water-mark on navigable streams belongs to the owner of the adjacent soil, and hence the right, within this limit, to set up a wharf, crane, or other contrivance, in a port-town, for the profit of the owner; for every man may make the most of his own; Hale de Portibus Maris, 77; Cooper v. Smith, 9 Serg. & Rawle, 32. But the bed of a navigable river is there vested in the crown; and here, in the Commonwealth, for the use of the whole community, and no private man can challenge an individual interest therein. This is so familiar a principle, that I shall not stop to cite authority to sustain it, further than to quote the remarks of Baldwin, J., in Bennett v. Boggs, Bald. 72, 73, that by the grants to the proprietors of New Jersey and Pennsylvania, they held only to the river Delaware respectively, and could not claim any part of the bay or river below low water-mark; the right to the entire bed of which remained in the crown until, by the Revolution, this was vested in the states in their sovereign capacity. But admitting this, the counsel for the defendant urges that a right to push wharves and other erections into the stream of such a river as the Delaware, is necessary to the exigencies of trade and commerce, and may, therefore, for public convenience, be properly exercised by the owners of the adjacent shore. In support of this notion, he cited the oft-repeated passage from Lord Holt’s treatise, De Portibus, 85, that “ it is not every building below the high water-mark that is, ipso facto, in law a nuisance; for that would destroy all the quays that are in all the ports of England, for they are built below the high water-mark; for otherwise vessels could not come to them to unload, and some of them are built below the low water-mark. And it would be impossible for the king to license the building of a new wharf, whereof there are a thousand instances, if, ipso facto, it were a common nuisance.” But Lord Denman, in King v. Ward, 4 Adol. & El. 884, overruling Rex v. Russell, 6 Barn. & Cress. 566, points out that, in this passage, Lord Holt is only disputing the doctrine that “ every building below the low water-mark is, ipso facto, a nuisance, which, as he remarks, his observations on existing quays, and on such as may have been erected under the king’s license, effectually disprove; and Lord Denman proceeds to answer the argument repeated in the present case, by referring to the evil which might follow encouragement given to capitalists and adventurers to interfere with known public rights from motives of personal interest, upon the speculation that the changes introduced by them might prove, ultimately, a public benefit. That Lord Den-man was right in his interpretation of Lord Hale, is further shown by what immediately follows the passage quoted: «Indeed,” continues that great jurist, « when the soil is the king’s, the building below high water-mark is a purpresture, an encroachment and intrusion on the king’s soil which he may either demolish, or seize, or arrest, at his pleasure, but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation.” In such a case, the question may be, nuisance or no nuisance; but it will not admit of doubt that without the king’s license it is always a purpresture, or attempt, without authority, to appropriate to individual profit what equally belongs to all. In harmony with this are all our statutes respecting the navigation and improvement of the rivers Delaware and Schuylkill, beginning with the act of 1784, which enlarges the power of the wardens of the port, and running down through the acts of 1793, 1798, 1799,1803, 1806*, and 1818, directing applications to be made to the board of wardens for license to erect wharves and prohibiting such erections and other obstructions below low water-mark without a license, under heavy penalties. Indeed, the act of 1818 would seem to go a step further; for it prohibits, except by consent of the wardens or Court of Common Pleas, on appeal, the building a wharf into the tide-way of the river Delaware, without any reservation of private right to low water-mark; but this was, perhaps, by inadvertence. This review conclusively establishes that nothing, corporeal or incorporeal, below low water-mark, passed by the deed of Camac and wife to the defendant, and, consequently, he cannot hold the grantors, or those in privity with them, responsible for a disappointment of any expectations he may have entertained inducing the purchase. To low water-mark he might build of his own mere motion, further than that, his volition was dependent upon and to be governed by the discretion of others whom the lord of the soil has intrusted with jurisdiction over the subject. Upon his application, in pursuance of the statutes that jurisdiction has been exercised precisely, to the extent of the privilege asked by him, and having conformed to its direction, he cannot now be permitted to make it a subject of complaint against the plaintiffs, that his artificial erection is not so commodious as it might have been, had not Clarkson and Hillegas projected their wharf into the stream in a particular direction. This, also, was done by the license of the wardens, who were authorized to permit it, unless, indeed, it interfered with the public highway of Cohocksink creek. In that event, the remedy for its removal would be by indictment for erecting and maintaining a public nuisance; but, for the reasons already given, the defendant cannot set it up as a defence to the action, though those who conveyed to him may have entertained the opinion they were seised or possessed of some estate or interest below low water-mark, and contracted under this misapprehension. Whatever may have been the idea entertained by the grantors, they entered into no covenant of title, nor stipulated for the defendant’s quiet enjoyment beyond the shore, nor did they attempt, in terms, to convey further. There is, therefore, nothing in this part of the case by which the plaintiffs can be affected, were it even admitted, the tenants .for life could bind them in this particular.

In addition to these several matters of defence, the defendant offered to set off against the plaintiffs’ demand a debt due to him from Mr. Ricketts, the husband of the cestui que trust, upon the ground of her consent that her husband might receive the rents of her separate estate, without accounting; accompanied with proof that the husband had sent to the defendant an account of the first year’s ground-rent, from the amount of which there was a deduction of part of the debt offered to be set off. This offer the District Court properly rejected. Unquestionably, a married woman, having a separate estate, may give it to her husband, or agree that he may receive the rents and profits during coverture; and if she permit him to receive the income, without complaint, it is evidence of her assent: Powell v. Hankey, 2 P. Wms. 83; Pawlet v. Delaval, 2 Ves. 663; Parkes v. White, 11 Ves. 225; Towers v. Hagner, 3 Whart. 57. But it is not perceived how this principle applies, to enable a debtor to set up such an agreement as the foundation of a set-off of the husband’s debt, in an action to which he is not a party, and in which he has no interest, brought to recover money due to the trustees of the wife. The consent offered to be proved, was, that the husband might receive, without being held to account; but he was not bound to receive, and the consent might be revoked, at any time; so that until he did receive, the rents remained the property of the plaintiffs, for the use of the feme. The actual receipt, with the understanding that he shall hold, without accounting, is what makes the sum received the husband’s. No such receipt was averred here, and a mere offer to receive is not equivalent. If, indeed, the husband, with his wife’s consent, had settled with the tenant, by allowing the latter a credit for the debt due to him, by way of deduction from the rent accrued, and received the balance, thus closing the annual account, the question would have presented a different aspect. But that is not the ease. ' The transaction, as disclosed by the paper book, is nothing more than an offer thus to account and receive by the husband, and a refusal by the tenant, leaving the respective rights of the parties precisely as' they stood before the offer was made. %

The proposal to set off a moiety of the debt, due from the estate of Turner Camac, the payment of which was assumed by Mr. Ricketts, rests upon the same insufficient foundation with the first offer, and for the same reasons. The fact that, probably, the agreement of the husband was made in reference to the rents, due to his wife’s separate estate, which, by possibility, he might come to enjoy, gives the defendant no claim on that estate for payment. Nothing is pledged but the personal liability of the husband, and to this the defendant is alone entitled to look.

The sixth exception to the charge of the court is groundless. The direction on the subject of the payment of interest was given in terms as favourable to the defendant as he had any right to ask. Indeed, the principle recognised in Burk v. Fisher, 4 Whart. 516, would seem to admit the application of a much more stringent rule as to the tenant’s liability for interest on arrears of ground-rent, than that drawn by the judge below from Obermyer v. Nichols, 6 Binn. 159. But it is sufficient that there is nothing here of which the defendant can justly complain.

It remains only to consider the sufficiency of the special pleas, demurred to by the plaintiffs, with which the record has been, as it appears to me, unnecessarily burdened. The only office performed by these pleas has been to complicate the inquiry, since the defendant has had the advantage of every matter of defence suggested by them, upon the evidence given under the notice of special matter. If, therefore, they shall be found, on technical grounds, to be inefficacious, the conclusion will be unaccompanied by the fear which sometimes attends such a result, that, possibly, a meritorious defence has been excluded.

Upon the argument, many objections were urged against the validity of these pleas, which seem to have been prepared without much apparent regard to the rules that point out their requisite features. Most of these objections are fatal; but it will be sufficient to notice two of them. The first, applicable to the fourth and sixth pleas, is, that although each of them begins with an answer to the whole of the plaintiffs’ declaration, the matter pleaded is, in truth, only an answer to a part. The narr. goes for the entire rent of the lot of land granted to the defendant, and the pleas, though professing to take defence as to the whole, deny only the plaintiffs’ right to recover a part of the rent, which, as we have seen, may be apportionéd. The residue of the demand is unanswered. Such a defective and partial plea is a nullity, and may be demurred to: Weeks v. Peach, 1 Salk. 179; 1 Saund. 28, n. 3; Archb. Pl. 168: and this, whether the cause of action be set out in several counts, or in one count only: Earl of Manchester v. Vale, 1 Saund. Rep. 27; Woodward v. Robinson, 1 Stra. 302; Nevins v. Keeler, 6 Johns. 63; Union Bank v. Clossey, 11 Johns. 182; Hallett v. Holmes, 18 Johns. 28.

The second objection is applicable to all the pleas demurred to. The last two are, in form, pleas of eviction from the whole or part of the premises out of which the rent demanded issues, and the fourth is either a nil habuit in tenementis, which, in covenant, is bad on demurrer: Comyn on Landlord and Tenant, 539; Palmer v. Ekins, 2 Ld. Ray. 1550; S. C. Stra. 817; or it is tantamount to a plea of eviction. But neither of the latter pleas set out the name of the evictor, or allege that he entered upon the defendant’s possession by virtue of a lawful title acquired before or at the time of the grant to the defendant. This averment is, absolutely, essential to the sufficiency of such plea, for though habuitjus et titulfylum, &c., is said to be well enough in pleading eviction by a stranger, because it is not supposed you know his title, you must add ante dimissionem; otherwise, it shall be intended the evictor derived his title from the tenant himself, and the plea is bad, even after the verdict: 1 Leigh’s N. P. 699; Jordan v. Twells, Ca. temp. Hard. 171; Wotton v. Hale, 2 Saund. 175 and 181, n. 10; Foster v. Pierson, 4 Term Rep. 617; Hodgson v. East India Company, 8 Term. Rep. 281. It is true, the sixth plea alleges, that by the tortious act of Camac and wife, the defendant was kept out of possession ; but it does not aver they .entered upon the defendant’s possession, or that they kept him out of possession; and, if it did, it is deficient in the other important particular pointed out. As to the fourth plea, if it intends to aver that Clarkson and Hillegas were the evictors, it contains no allegation of any right- or title in them, before or at the time of the grant; and as the grantors did not covenant against the tortious acts of strangers, or for quiet enjoyment of the grantee — at least, it is not so averred in the plea— an illegal entry upon the possession of the defendant, or keeping him out of possession by a third person, cannot affect the plaintiffs’ right to recover in this action. The conclusion arrived at below on these demurrers was, therefore, right.

What has been said embraces every material point made in the case. It will be perceived no error was committed by the District Court.

Judgment affirmed.


source: Caselaw Access Project

author: Rogers, J.,

license: Public Domain

text:
    Watmough v. Francis.
    The execution of a fieri facias is one act; and though a seizure be made before the giving a bond of indemnity, and a sale be made afterwards, the execution is made after the giving of the bond.
    The endorsement of a second fi. fa. by the sheriff amounts to a re-seizure of goods already taken under a former writ.
    The sheriff having levied on goods under a fi. fa., a second fi. fa. was delivered to him, on which a levy was made, and notice received of title in a stranger. The plain till' in the second writ then executed a bond to the sheriff, reciting the fi. fa., conditioned to save the sheriff harmless, “ by reason of his executing said writ, and attaching and making sale by force and virtue of said writ of the personal property of any person supposing them to be the property of defendant.” The sheriff then proceeded to sell the goods, which brought less than the amount of the first writ, and the proceeds were paid to the first execution creditor. Judgment having been recovered by the real owner of the goods in an action of trespass, the second execution creditor is liable to the sheriff on his indemnity bond.
    Form of a judgment for the plaintiff in error on demurrer where other pleas to the whole action remain to be tried.
    In error from the District Court of Philadelphia.

      Dec. 13, 15 — Jan. 3. The plaintiff declared in debt for the penalty of a'bond. On oyer, the condition set out recited a fi. fa. issued at the suit of C. Francis, tested on the 6th Sept., commanding the sheriff (plaintiff) to levy the sum of $12,875, &c., of the goods, &c., of J. P. Norris, “ and whereas the sheriff has been notified that the goods levied on by virtue of said fi. fa. are not the property of defendant, but of J. R. Thompson et at, now if C. Francis, &c., shall at all times save, keep harmless, and indemnify the sheriff and his officers for or by reason of his or their executing said writ, and attaching, and making sale, by force and virtue of said writ, of the personal property of any person, supposing them to be the property of defendant, then defendant would indemnify him,” &c.
    The defendant pleaded by his third plea that the sheriff did not at anytime after the execution of said bond execute the writ of fi. fa. therein mentioned, and attach and make sale of the property of said Norris, or of any other person, &c., by force and virtue of said writ. The seventh plea was, that the only execution of the writ in the condition mentioned was upon certain goods there mentioned to be claimed by Thompson and others, which were sold by the sheriff for the>priee of $3290 59, which sum was never paid over to Francis, but was retained by the sheriff, and was to that extent an indemnity ; and if he had been damnified beyond that sum, it was for a cause not within the terms of the condition of the bond.
    The ninth plea was, that the only execution made of the writ was upon any surplus which might remain of certain goods after a prior writ of fi. fa. against said Norris, which had been previously levied by the sheriff on the goods as the property of Norris; and that there never was any surplus from said goods.'
    The tenth plea was similar to the seventh, adding that the excess of damage was from the unlawful and excessive conduct of the sheriff.
    The replication to the third plea set out the delivery of the fi. fa. at the suit of Francis. That at Francis’s request before the making of the bond, the sheriff had seized in execution, and was then in possession of certain goods (particularly set forth in another plea) as being the goods of Norris, subject and liable to be taken in execution by virtue of said writ, which goods, before the making of said bond, had been claimed by Thompson, of which Francis had notice, and thereupon he delivered the obligation, &c. That after the making of'said obligation, at request of Francis, by virtue of said fi. fa., and of divers other writs against Norris then in his hands to be executed, he sold the goods, &c., for, &c., which goods were at that time the proper goods of Thompson, « which said sum the sheriff paid over and distributed according to law.” He then averred a recovery by Thompson of $5575, in an action of trespass, for taking and carrying away the goods under and by virtue of said writ, which sum the sheriff was obliged to pay, as well as other money for expenses. That before the execution of said bond, the sheriff had in part executed the fi. fa. by attaching and levying the game upon the goods, supposing them to be the property of Norris, and after the execution of the bond he had completed the execution of the writ by selling the goods, &c., supposing, &c. To this defendant demurred, specially — 1, because the issue tendered of an execution of the fi. fa. was not joined, but a breach of the condition of the bond was set out; 2, argumentativeness; 8, because it was ambiguous in not stating under which of the writs of fi. fa. the sale was made, nor what disposition was made of the money.
    To the seventh plea, plaintiff replied: that after the said execution and sale he did not retain any part of the said proceeds, but paid the same to the plaintiff in a writ issued at the suit of one Baldwin, by which the sheriff had been commanded to levy $8479 upon the goods of Norris, which writ had been delivered to the sheriff before the fi. fa. mentioned in the plea, and remained in his hands to be executed at the time the other writ was to be executed, and that that money was no indemnity. The recovery, as stated above, was then set out, and the averment that the excess of damages was from his own wrong was traversed.
    As to so much of this rejoinder as related to the sum of' $3290 59, defendant demurred, and as to the residue joined issue.
    To the ninth plea, plaintiff replied, that the execution of the writ was not upon any surplus, but that the goods were levied and sold by virtue of several writs of fi. fa., of which Francis’s was one. The recovery by Thompson was then averred as before, which loss was by reason of the premises in the condition mentioned. To this defendant demurred, and assigned certain defects in form; and that the replication only answered a part of the plea, while it professed to answer the whole.

      The replication to the tenth plea, and the demurrer and rejoinder to the replication, were similar to those to the seventh, traversing the additional allegation. Besides these pleas, there were others going to the whole declaration on which issues of fact had been joined.
    Jones, J., in giving judgment for the defendant on the demurrer, said: There was but one question in the cause — whether the plaintiff as sheriff did execute the defendant’s writ, and did attach and make sale of the goods mentioned in the bond according to the true intent and meaning of the condition. The term executing the writ was the most comprehensive, and the others did not enlarge it. The cases upon the execution of a writ depriving the defendant of the title were inapplicable, for the question was, what was the plaintiff bound to do in order to execute the writ within the meaning of the condition ? The writ supplied the answer; it was by levying the debt, if the goods were sufficient, and paying the money to the plaintiff in the execution, or bringing it into court upon hi,s writ. The practice of bringing the money into court would not relieve him, if the goods belonged to a stranger; for that he must look to his indemnity. But he must be careful to comply with the conditions, and not bring the money into court, or distribute it according to law, supposing them' to belong to defendant when he is indemnified for executing a particular writ. If he pays over to one plaintiff, he executes that writ. To his security on that writ alone could he look, if the goods belonged to a stranger. In such case he must' take a twofold indemnity; first as to liability to a stranger who may be the owner; second, to the prior execution creditors, if the goods belong to the defendant. On electing to execute one writ by paying the money on it, which is the most important part, he should return the prior writs nulla bona.

      Meredith, for plaintiff in error.
    The court considered the payment a necessary part of the sheriff’s duty within the condition of the bond. But the words attaching and making sale, define the meaning of the previous words. The levying is a partial execution, and the sale perfects it. The return is a distinct matter. This the court conceded, in admitting that if the goods were not sufficient there was a complete performance. This construction necessarily involves the loss of the amount of the previous executions at the least, and renders the subsequent words of no effect.
    Two positions show the fallacy — 1. The sheriff on indemnity offered is bound to proceed: Nagle v. Stroh, 4 Watts, 124. 2d. When he does proceed, he is bound to distribute to the creditors in the order of their executions : Girard Bank v. Philadelphia and Norristown Railroad, 2 Miles, 447. There were three executions, and the last indemnified, but the first was held entitled ; McCormick v. Miller, 3 Penna. Rep. 230. It would be to require security against a false return on a prior writ, which would not be tolerated. The reasoning is based in a measure on the word levied —the proper word is made: Tid. Prac. 352, Appx. Forms. It cannot be denied if the money was not made he would be entitled on the bond, and what distinction is there when the money is taken by a prior writ ? Suppose costs merely were raised, or a landlord took all. The whole object is that the sheriff will act as if the property were defendant’s. McClelland v. Slingluff, 7 Watts & Serg. 134, in conformity to the English cases, decides that a levy exclusively on the second writ entitles the prior creditor to the money; Drewe v. Lainson, 11 Ad. & Ell. 529, where it is said executing does not mean that the money shall be applicable to plaintiff’s writ. So in Shafner v. Gilmore, 3 Watts & Serg. 440, the prior writ took the money though the goods did not come into the bailiwick until after delivery to the sheriff, when they were seized under a second writ. Nulla Iona would be a good return to the second writ, where the money is taken by a prior creditor or landlord: Wintle v. Freeman, 11 Ad. & Ell. 539. So in Jones v. Atherton, 7 Taunt. 56, the second execution binds from delivery subject to the prior writs. Swain v. Morland, 1 Brod. & Bing. 370, is direct as to what is a complete execution. The sheriff had received the money from a sale on a fi. fa., when an extent issued which has priority to all writs not executed, and the creditor was held entitled. It is said if there be indemnity the money cannot be brought into court: Sawle v. Paynter, 1 Dow. & Ry. 307; Goldschmidt v. Hamlet, 6 Man. & Grang. 187. Is the sheriff not to be indemnified if the writ is set aside for fraud or other cause ? In no case can payment be the test. The return proper is not payment, but that he has the money as he is commanded.

      H. D. Gilpin, (Tyson was with him,) contra.
    If defendant is liable, he sustains an injury while the benefit goes to another, whom, for aught that appears, the sheriff does not choose to pursue. If the sheriff executed the former writ, and he could do no more, he has not done the same with ours. There are but two proper returns — fieri feci or nulla bona. It was his duty, having used the proceeds in satisfying the former writ, to return there were no more goods. The agreed rule that executions take according to their priority, shows that payment alone is complete execution; for a sale under Francis’s writ accrues to the benefit of the prior creditor only. Not a case can be produced which holds any thing but payment to be an execution. Drewe v. Lainson decides in a like case that nulla bona is the proper return. Lord Denman says, “ by executing is meant applying the proceeds.” Swain v. Morland merely decided that the property passed from the defendant by a sale, not that the writ was executed as to plaintiff until all was done that could be demanded. Saul v. Paynter admits the point contended for, and Goldschmidt v. Hamlet was merely on a question of priority as to bankrupt assignees.

      F. W. Nubbell, on the same side.
    It is a mere question for decision by authorities — whether the second execution can be said to be executed in any sense within the meaning of the bond. 1. The same goods cannot be levied upon by more than one writ; i. e. in the positive sense of the term — what is ordinarily so styled is a, different matter. 2. When the first writ exhausts the subject, the proper return is nulla bona. 8. Executing, in the sense of the bond, is seizing and selling goods, the proceeds of which, when realized, are applicable to that writ. 1st. The true mode of stating the rule appears to be, when the sheriff has but one writ a sale beyond the exigencies of that makes him a trespasser. When he has several, the second is his justification for such excess. It is under that writ he th'en begins to sell until he has satisfied it, and then the third comes in, and so on. If the first writ is set aside, the second by relation justifies him. It is only in.the event of these contingencies, and on the surplus, that the subsequent writs operate. The cases show this : Wintle v. Chetwynd, 7 Dowl. P. C. 554, “it is impossible he can seize under two writs: one must have the priority.” Heenan v. Evans, 1 Dow.N.C.204; Chambers v. Coleman, 9 Dowl. P. C. 588, explain that remark — “true you cannot levy under two writs, but you may contingently. If the former exhausts the goods, you must return nulla bona.” In 11 Ad. & Ell. 548, the explanation is to the same effect. 2d. Nulla bona is the proper return : as where the landlord takes the proceeds : Wintle v. Free-, man. 3d. As between plaintiff and the sheriff, the meaning of execution is settled by a series of decisions; Drewe v. Lainson. The Chief Justice there, analyzing the declaration, says, “ such must be the meaning of the averment — viz. raising money applicable to the writ.1’ The sheriff was bound to do all he did do under the first writ. If Francis had refused to give indemnity, and if that creditor had refused, he might have demanded indemnity against returning nulla bona to that writ. Then Francis would at least have had the benefit of the execution, for which he is called upon exclusively to indemnify the sheriff.

      Williams, in reply.
    The facts of a levy previous to the bond, and of a sale at Francis’s request, are admitted by the demurrers. The condition may mean three things, either as contended for by defendant — a levying and selling as argued by my colleague — or that the sheriff is to be indemnified for each step he takes under Francis’s writ. By • the last only is every word fulfilled — it is therefore the reasonable construction. It was the trespass in making the levy that was the ground of the recovery, and this levy the bond concedes was under Francis’s writ. The recovery shows that more than sufficient to cover the former writs were seized, and Francis, knowing of that excess, gave the bond to take the chance of the surplus. Payment to plaintiff is never a part of the return; but fieri feci et paratum habeo: Wortman v. Conyngham, 1 Pet. C. C. R. 243; Zantzinger v. Old, 2 Dall. 265; 4 Watts, 124; 3 Watts & Serg. 438. The pleadings and return show that the seizure was under Francis’s writ: McCormick v. Miller, 3 Penna. Rep. 234. No ease can be stronger than that of the extent; and surely the meaning of executed will not be more strictly construed in an indemnity bond than against the crown. In the leading case of Meriton v. Stevens, Willes, 280, it is said if execution is begun before writ of error, the sheriff must go on and complete it — that is, sell and bring the money into court. What have we done to forfeit the indemnity ? We could not pay it but in the order of the writs: Archb. Prac. 407; 1 Term Rep. 729. The agreement contended for to pay to Francis, would be a fraud on the other creditors.

      Jan. 3.
   Rogers, J.,

(after stating ' the case.) — The points raised on the special plea we are relieved from considering, as it is agreed that the only question on which the opinion of this court is desired, is whether there is any breach of the bond; that is, whether the plaintiff, as sheriff, did execute the writ, did attach and make sale of the goods, according to the true intent and meaning of the condition.

As it forms part of the case, I will premise that the fact that the goods were seized on the first writ, before the second was put in the hands of the sheriff, that the action of the sheriff was partly before and partly after the date of the bond, is immaterial. For the execution of a writ, though it may consist of several acts, is but one thing in contemplation of law. It may be deemed to have been made after the date of the bond, if completed after that time. Otherwise, as is justly remarked, a bond given after a seizure of goods upon claim made by a stranger, would be no security to the sheriff, unless he begins his proceedings de novo, by making a new seizure. But this would be nugatory, for the law unquestionably is, that the receipt of a second execution, from the time it is endorsed by the sheriff, amounts to a re-seizure of the property on which the prior levy has been made. From that moment the goods are considered in his custody on all the executions. And from this it results that the consequence is the same, and, consequently, the question must be viewed in the same aspect as if the levy had been made on the writs in his hands, after the execution of the bond. In the latter case, it would be a trespass eo instanti the levy was made, and if made at his instance, the execution creditor would be liable with the sheriff at the suit of the person whose property was unlawfully taken. At the time the bond of indemnity was given, there were two executions in the hands of the sheriff; a levy had been made, and the goods of the defendant seized in satisfaction of the debts due on both. But, as before remarked, it is immaterial whether the seizure was made before or after the date of the bond. The law on which this case turns is well settled. Thus, in Jones v. Atherton, 7 Taunt. 56, it is ruled that though a sheriff makes a warrant and seizure of goods under a fi.fa. last delivered to him, yet the plaintiff in a fi.fa. first delivered, is entitled to be first satisfied out of the fruits of that seizure. And if a second fi. fa. be delivered to a sheriff after he has the defendant’s goods in possession under the prior fi.fa., the goods are bound by the second execution, subject to the first from the date of the delivery of the last writ. And that without warrant on the second writ or further seizure, McCormick v. Miller, 3 Penna. Rep. 234, is to the same point. But where, as in McClelland v. Slingluff, 7 Watts & Serg. 135, two executions are placed in the sheriff’s hands at different times, and he makes a levy on the defendant’s personal property, and a sale upon that which came to his hands last, he must appropriate the money to it, and not to the first upon which he had endorsed or attached no levy. But, although this be so, yet it is held in the same case, if two writs of fi. fa. are delivered on the same, or different days, the sheriff ought to execute that first which was first delivered. If, however, either by mistake or design, he levy goods in execution by virtue of the writ last delivered, and make sale of them, the property in the goods is transferred by the sale, and the party cannot seize them by virtue of the writ first delivered, but he may have his remedy against the sheriff: Wats, on Shff. 176. The usual practice is to endorse the second writ, “levied subject to prior executions,” and as the first levy enures to the benefit of the second, a formal levy is not required: Lex neminem eogit ad vana seu impossiMlia. It is the duty of the sheriff to levy and sell the goods on all the executions, and to pay the proceeds in the order of date. The sheriff, it is true, has power to do otherwise. If he chooses to violate his duty, he does so at his peril; and when it appears that it is done with the design of favoring the second execution creditor at the expense of the first, it would present a case of such palpable disregard of duty, as would call, as I apprehend, at the hands of the jury, for exemplary damages. That a seizure in execution operates as a seizure under all the writs of fi. fa. then-in the hands of the sheriff, is also decided in Wintle v. Freeman, 11 Ad. & Ell. 549, and Goldschmidt v. Hamlet, 6 Mann. & Gr. 190.

It is true that in Wintle v. Chetwynd, Mr. Justice Patteson is reported to have said that it was impossible to seize under two writs. But in this he was clearly mistaken, as he himself acknowledges in Wintle v. Freeman, 11 Ad. & Ell. 548. There may be many writs in the hands of the sheriff at the time of the seizure, and he seizes under them all. In contemplation of law, he is deemed (unless it appears to be clearly otherwise) to have seized, under the second writ, the same property that was seized under the first, and not merely the surplus from the time the second writ comes to his hands, or at any rate, from the time he endorses the seizure. That the levy is on the surplus only, is supported neither by reason nor authority; on the contrary, it is held that it is the same thing whether an execution is the first execution in point of fact, or whether it becomes a first execution by reason of a prior execution being superseded: The Prince’s Case, 8 Rep. 1. So the second execution creditor becomes the first execution creditor, upon that execution which was de facto the first, being withdrawn: 1 Mann. & Gr., and 6 Mann. & Gr. 192. But this could not be if the levy was only on the surplus after paying the first execution. Here two writs were in the hands of the sheriff, on which a levy had been made in due form, and the sheriff was about to proceed and sell as he was commanded, when notice was given that the goods seized were not the goods of the defendant in the execution. The authorities cited clearly indicate the duties of the sheriff, and it may shed some light on the question to inquire what were his rights. Under the circumstances of the case he is entitled to protection,,as is ruled in Nagle v. Stroh, 4 Watts, 124. As he is bound to execute the writ at his peril, when there is a reasonable doubt whether the goods are liable to be taken on thefi.fa., he may apply to the court from which the writ issues, and in a proper case the court will enlarge the time for making the return to the writ, until the right he tried, or a sufficient indemnity he given. But where he has received, or is tendered an indemnity, it is his duty to proceed, on pain of being attached or fixed for the debt. Now, what is the nature and extent of the indemnity *which the sheriff has a right to demand, and that the court would, on a proper application being made, require from the execution creditor ? Certainly, an indemnity commensurate with the risk he incurs from the performance of his official duty; that is to say, an indemnity for seizing and attaching the goods, an indemnity for selling them on the writ, and an indemnity for the complete execution of the writ. This he would have, undoubtedly, a right to demand, and unless given, the court would stay the proceedings. That he would be entitled to indemnity for seizing the goods, is plain; because, otherwise, when the execution is stayed, or no further steps taken in executing it, the sheriff would be without remedy for damages arising from the illegal seizure of the goods of a stranger. Here no application to the court was necessary, as the defendant, who was one of the execution creditors, complied with all he had the right to require ; and the.question is as to the extent of his liability upon the bond. The sheriff proceeded to sell the goods, at the instance of the defendant, for a sum less than the amount of the first execution, and applied the proceeds to that instead of the second execution. And this is the burden of his complaint, for the defendant contends that inasmuch as he received nothing, the avails of the sale being paid to the first execution, there is no breach of the agreement; but in this he is in error, because there was a breach of the condition eo instanti the trespass was committed, which consisted in seizing the goods of a stranger for the debt of the defendant in the execution. The defendant agrees to save, keep harmless, and indemnify the plaintiff, for and by reason of his executing his writ, and attaching and making sale by force and virtue of it. Now, what was the intention of the parties to the agreement? On this the question turns. The natural presumption is, that the sheriff intended to exact, and the defendant to give, a full and complete indemnity against every risk incurred by tbe officer in the performance of his duty; and as the indemnity is in the usual form, we have no warrant for believing he intended to waive any of his rights. Directly the reverse is the most probable supposition. The inference is strong, that the defendant designed to indemnify him for attaching or seizing the goods, selling them in pursuance of the seizure; and, in short, for all the consequences arising from a partial or complete execution of the process in his hands. The authorities show, and for this purpose they are cited, that there was a breach of the condition, ipso facto, the goods of John It. Thompson were seized to pay the debt of Joseph P. Norris. From the moment of the levy, a trespass was committed, for which the sheriff and the defendant, at whose instance the goods were taken, were answerable. To save the sheriff from the consequences of an act which might eventually be proved to be unlawful, we cannot doubt, was one of the objects of the bond. If the goods aré levied on, and afterwards delivered to the owner without further proceeding, the damages would, it is true, be nominal; but nevertheless it is a trespass, for which it would be unjust the sheriff should be answerable out of his own pocket. But if not only seized, but sold, it is a continuation and aggravation of a trespass already committed, for which the measure of damages would be the value of the goods; or, if the owner chooses, it would be the foundation of an action to recover the proceeds of sale, in assumpsit. But it is said that the term used" in the condition, viz., executing said writ, is the most comprehensive. That attaching and making sale by force and virtue of said writ, does not enlarge the meaning of the condition, nor does it impose any duty not comprised,in the former. This position constitutes the strength of the defendant’s case. That we entertain a different opinion, may be seen from the remarks already made; but assuihing the question to be as stated, let us view the case in this aspect. At the time the bond was given, both parties are procuring what one had a right to exact, and the other was bound to do, to secure the execution of his writ, viz., a full and complete indemnity against the consequences of tho act he was compelled to perform, in the absence of any indication to the contrary. We cannot presume the sheriff intended to content himself with less; nor can we suppose the defendant designed to give less than the law required. And much less is there any thing in any part of this transaction which shows any thing like an agreement by the sheriff to violate his duty, by paying over the proceeds to the defendant, in fraud of the rights of the prior creditor. That there was an express agreement to that effect, is not pretended. It is an inference, without the shadow of support. At the time the bond was given, it was known to the defendant, at least he had legal notice of it, that there was in the hands of the sheriff a prior execution, entitled to be first paid. The irresistible inference from this state of facts is, that he consented to run the risk of the goods being the property of the defendant in the execution; and, moreover, to incur the hazard that the property, when sold, would bring a sum sufficient to pay not only the first execution, but the whole, or at least part of his own debt. And this reasonable supposition is strengthened by the fact that the property seized (as afterwards appeared) was worth upwards of five thousand dollars, although it was suffered to be sold at a much less sum. That the defendant received nothing in payment of his debt, it is clear, was his own fault; for after entering into such an agreement, with a full knowledge of the prior execution, it was his duty, as well as interest, to see that the goods seized were not sacrificed at the sale. Under the circumstances in which he ivas placed, what was the sheriff to do ? On the tender of indemnity, he was bound to execute the writ; so say all the authorities. It is also clear that the court will not stay the proceedings on the allegation, simply, that he has another execution in his hands, against which he is not indemnified. The answer to such an allegation would be, — that is nothing to you; you have a sufficient bond of indemnity, and it matters not by whom it is given, whether by the first or second execution creditor. You are not entitled to two indemnities. You cannot execute one writ without executing the other; the levy and sale on one is the levy and sale on both. It matters not by whom the indemnity is given, whether by the first or second execution creditor, by one or all, by separate or joint bonds. That must be left to be settled by the execution creditors among themselves. With their arrangements you have nothing to do. Had the defendant applied to the first execution creditor, it is very probable he would have joined in the bond, and agreed tts share the responsibility. Had he refused, it would then have been for him to determine whether he would incur the whole risk himself. But with a knowledge of all the facts, he enters into a bond, by which he assumes the whole responsibility. Has, then, the sheriff done, or omitted to do any thing which exempts the defendant from refunding the loss which the plaintiff has sustained by the recovery of Thompson against him, is the next inquiry. It is strenuously contended that he has, because he has not executed the defendant’s writ, by returning the property sold or that writ, ■and paying the proceeds of sales on the second execution. That the plaintiff executed the defendant’s writ in the most approved form, has been, and hereafter will be, more fully shown; so that the complaint is nothing more nor less than that he refused to violate his duty, by paying the money over to the second execution, to the detriment and manifest wrong of the first. The plaintiff assumes, that unless there is a complete execution of the writ, by payment of the money to his execution, there can be no recovery. But that there may be an execution of the writ, in legal parlance, although the money is not paid, nor a cent raised applicable to the execution, is abundantly shown by authority. Thus in Sawle v. Paynter, 1 Dow. & Ry. 307, the seizure and levy of the sheriff is treated as the execution of the writ. And in Goldschmidt v. Hamlet, 6 Mann. & Gr. 192, Cresswell, J., says, the general rule is, that an execution is executed by seizure. And in Swain v. Morland, 1 Brod. & Bing. 370, it is held, that the writ is executed when the goods are sold. In that case the goods had been seized under a fi. fa., part were sold on Saturday, and the remainder on Monday, and an extent put into the sheriff’s hands at six o’clock, after the goods sold had been delivered to the purchaser, and the money received by the sheriff; it was held, the execution was executed, and that the party which issued the fi. fa. might recover of the sheriff in an action for money had and received, the money levied under the sale. It was a contest between the crown and the plaintiff in the execution, and was ruled in favour of the latter, on the ground that, by the sale, the execution was executed, and the property changed. It is an authority directly to the point, that payment of the money to the execution creditor is not indispensable to the execution of the writ: that a writ may with propriety be said to be executed, without payment of the money over., The authorities cited clearly show that the term, « executing the writ,” has no fixed, precise, legal signification, but that the interpretation must be referred to the subject-matter in controversy. That payment is not a sine qua non of the execution of the writ, is further evident from this, that by a fi. fa. which is a judicial writ, the sheriff is commanded to levy the debt, or damages, on the goods and chattels of the person against whom the recovery is had, and bring the money and the writ before the court on the return-day. He may, if he chooses to incur the risk, pay the money to the person entitled to it, but he is not bound to do so; he performs his duty by paying the money into court: Shafner v. Gilmore, 8 Watts & Serg. 438. That the defenclant receives nothing in payment of his execution will not relieve him from his responsibility on his bond, in all cases, is manifest from the authorities, and indeed has in effect been conceded in the argument. Thus, where 'there is one execution in the hands of the sheriff, and the proceeds of sale pay the cost only, it is not denied that the creditor will be liable on the bond of indemnity; or when, as in Sawle v. Paynter, 1 Dow. & Ry. 307, the proceeds are taken for the payment of rent, the law is the same. And so, in the case in hand, if the property had brought more than was required to pay the first execution, leaving a surplus applicable to the second execution. And yet it is difficult to see the distinction, when the same effect is produced by a first execution being in his hands, and consequently first paid. It is a distinction without a difference; the principle is the same. What then was the meaning of the parties to this contract ? To my mind it is clear, when we consider all the attending circumstances, that one had the right to ask, and the other was bound to concede, that by the word execute the writ, was meant, levying and selling the goods, paying the proceeds according to law, viz. into court, or to the first execution creditor, and applying the surplus, if any, to the payment of the plaintiff’s debt. These duties the sheriff performed to the letter. In nothing has he failed. He levied on the plaintiff’s writ, sold on his writ, and paid the money to the persons legally entitled, as he was commanded. It is not the less a levy and sale, on the plaintiff’s writ, that he had another writ in his hands, for, as we have seen, he levies and sells on all the writs. The fundamental error is in supposing that it was the duty of the sheriff to sell exclusively on the writ of the defendant, whereas it is plain he must sell, unless he chooses to violate his duty, on all the writs in his hands. This is a mistaken view of his duty, for it is not so written in the bond, and there is nothing to indicate such intention. And that this is the opinion of Lord Denman, is declared in Drewe v. Lainson, 11 Ad. & Ell. 539. The duty of a sheriff, where he has several writs of execution, is clear: he is to execute them according to their priority; which, as to writs of fi. fa., is according to the time of their delivery to him. By “ executing” is meant, (in the language of the learned judge,) that he is to apply the proceeds of goods seized in that manner. It is not material whether he seizes the goods under the first or last writ. As soon as they are seized, they are, in point of law, in his custody, under all the writs which he then has, and when he sells, then he sells, in point of law, under all the writs. This is obviously so, for if the proceeds are more than sufficient to satisfy the first, he must apply the surplus to the second, and so to the third and others; and as the amount for which the goods will sell is uncertain, he cannot he said to sell under the first writ only: vide, also, 2 Miles, 447, 3 Penna. Rep. 230. We cannot suppose that it was designed by the parties to indemnify the sheriff only, on condition that he violated the law; but this monstrous and startling proposition is the plain result of the defendant’s argument. He contends that he only agreed to indemnify, provided the money, raised by the sale, was paid on his writ ,• but this, as we have seen, would be contrary to his duty, and had such a stipulation been inserted, it would, I apprehend, avoid the bond. For an agreement to indemnify a public officer, for a violation of his official duty, is simply void. This is a principle, I believe, without exception. It is said, that inasmuch as there was no surplus, the proper return to the plaintiff’s writ was nulla bona. That a sheriff may, when the money raised will not reach the second execution, make such a return, may be conceded, but that he is bound to do so, I deny. Nor is it necessary to consider what effect would be produced by a return of •nulla bona. It is enough that the sheriff made the usual and proper return; that he had levied upon the goods and chattels of the defendant, (subject to a prior levy, &c.,) and sold the same for $>3290 58. As, then, the sheriff performed his duty, we are of opinion there has been no breach of the condition, and that he is entitled to indemnity from the defendants.

And now, to wit, this 3d day of January, in the year of our Lord one thousand eight hundred and forty-eight, come the parties aforesaid, and their attorneys, &c., whereupon as well the record and proceedings aforesaid, and the judgment aforesaid, in form aforesaid given, as the matter aforesaid, by the said John Gr. Watmough above, for error assigned being seen and by our said court now here fully understood, it appears to our said court that in the proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error; therefore, it is considered that the judgment aforesaid for the errors in the said record and proceedings be reversed and altogether held for nothing. And upon mature deliberation had, it appears to our said court here, that the pleas of the said plaintiff by him pleaded, by way of replication to the third, seventh, ninth, and tenth pleas of the said defendant, are sufficient for the said J. Gr. Watmough to have and maintain bis aforesaid action thereof against the said Charles Francis, wherefore it is considered that the said J. G-. Watmough ought to recover judgment thereof against the said C. Francis. But forasmuch as it is unknown to our said court what damages the said J. Gr. Watmough hath sustained by means of the premises, or what judgment shall be finally given on the whole record, by reason of issues of fact therein yet remaining and undetermined, whereupon the record and proceedings of the said judges of the said District Court, before them had in the premises, are remitted by our said court here, and let a venire, &c., to the sheriff, &c., issue out of the said District Court, to summon a jury, &c., as well to try the several issues, whereupon the said C. Francis-hath put himself upon the country, as to inquire what damages the said J. G. Watmough hath sustained by reason of the said matters, whereof judgment hath been given against the said C. Francis, and thereupon let the said District Court proceed and giye judgment as upon the whole record, shall be according to law.