text:
    Frailey v. Waters.
    To the grant of a right to back the water by a clam, on the land of the grantor, there is incident the right to enter and cleanse the pool and repair the dam.
    Parol license by an agent to do an act affecting the realty, cannot be shown, on the mere evidence of his general agency.
    In error from the District Court of Philadelphia.

      Dec. 16. This was an action of trespass for entering the close of defendant, breaking and carrying away the soil. The defendant pleaded that he had the right to dam the water of a creek back upon plaintiff’s land to a certain line, and to have and enjoy a dam upon plaintiff’s land for the purposes of his mill, and at all reasonable and proper times to enter upon and clean out said dam ; that it had become filled up by the carelessness of the former owner and plaintiff, and by the illegal conduct of plaintiff in diverting a stream formerly running into defendant’s own dam on his land, whereby the upper dam had become filled up; that in consequence of such filling up defendant entered and cleansed it and put a new trunk in the dam, doing as little damage as possible.
    The plaintiff having proved the trespass, the defendant gave in evidence Ms deed, of wMch the clause relied on was, “ including the new mill and the liberty of building a new dam so as to swell the water,” &c. There was no express reservation of a right of entry to cleanse or repair. He then proved that the upper dam had become filled up by the deposit of the creek, owing to the nonuser of the mill, and neglect of the gate in the dam; and that he entered and dug it out, depositing the earth on the bank on his own land. The defendant having shown that plaintiff had opened a small ditch into the upper dam, plaintiff proposed asking the witness who had said “he had acted for a former owner of the defendant’s land,” whether he had given plaintiff leave to make that ditch, but the court rejected the evidence.
    Jones, J., instructed the jury, that the defendant under Ms deed had the right, as an incident to his grant, to enter upon the land on ■which the dam stood, to repair and cleanse it, so as to make it useful for the purpose for which it was intended, (citing 2 Roll. Abr. Tresp. M., pi. 2; Yin. Abr. Tresp. M. a, pi. 2; Moor. 644, pi. 889; Godb. 52,) but he had no right to carry away the soil.

      P. McCall and O. Ingersoll, for plaintiff in error.
    There was no grant or reservation of a right of entry, and the cases all show that there can be no entry on another man’s land for less than a nuisance. The only injury proved was the result of the carelessness of the defendant, and he cannot take advantage of his own wrong. Hodges v. Raymond, 9 Mass. Rep. 316; Gleason v. Gary, 4 Conn. Rep. 418; Strong v. Benedict, 5 Conn. Rep. 210; Lonsdale v. Nelson, 3 Dowl. & Ry. 556, which latter case decides that a nuisance can never arise but by acts of commission. The evidence of parol license was admissible, -being executed: Le Fevre v. Le Fevre, 4 Serg. & Rawle, 241; Hepburn v. McDowell, 17 Serg. & Rawle, 383; Ricker v. Kelly, 1 Greenl. 117.

      Haly, contra.
    The question of damage having been settled by the jury, the only one left is the right to enter under the deed. Either the plaintiff was bound to cleanse, or the defendant had the right to do so, otherwise the grant would necessarily be inoperative.

      Dec. 22.
   Bell, J.

No error is perceived in the charge of the court in the particulars complained of. The legal principles which govern the case were correctly stated, and the disputed facts fairly left to the jury.

The first bill of exceptions to evidence was properly abandoned on the argument, and the second is destitute of merits; for though, perhaps, a written power was not necessary to enable the witness to give the permission offered to be proved, some authority, proceeding from his principal, certainly was. None such was specially alleged, nor does it appear it sprang from the general nature of the agency. But this is a subordinate feature of the case. The object of' the action was to ascertain the right of the plaintiff below to enter upon the land of the defendant for the purposes mentioned in the special plea of justification, and this is correctly settled by the judge before whom the case was tried.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    American Insurance Company v. Insley.
    It is no defence to an action on a marine policy of insurance that a loss directly caused by a peril of the sea happened through the negligence of the captain and crew.
    In such case, it is sufficient to aver a loss by the perils of the sea, which were insured against, and which directly caused the loss.
    The master and mariners are competent witnesses for the insured.
    Where the policy is sealed, the action must be brought in the name of covenantees, who are entitled to recover for the benefit of the interests insured, whether owners or mortgagees.
    And it is immaterial in such case that the various counts lay the interest in different persons, as owners or mortgagees.
    A. and B. being joint owners of a vessel, A. gave an order to a company in P. to insure for himself and B., and the policy was effected in their names. A loss having ' occurred, A. made an affidavit that a policy affected at Y. was the only one on his half of the vessel, and that B.’s half was separately insured. It is merely a question of fact for the jury what interest was insured at P., and the affidavit does not amount to a disclaimer of A.’s interest in such policy, so as to bar the right to a recovery for more than one-half of the sum insured.
    In error from the District Court of Philadelphia.

      Deo. 16, 17 — Jan. 10, 11. This was an action on a sealed policy of insurance of the defendants, effected by Jacob and Esau Insley, the plaintiffs, in their names, and in the name of every person to whom the property insured may belong, on the brig Isabella, in the sum of $5000. The first count laid the interest in the plaintiffs, and the loss by stranding on a reef through stress of weather. The second count laid the interest to the extent of $3000 in Huston and Child, to whom she had been hypothecated by the plaintiffs. The third count laid the insurance as on one-half of the valuation of the vessel on the half owned by Esau Insley ; and the fourth was to the same effect, averring the partial interest of Huston and Child. The defendants pleaded they had not broten the covenants ; covenants performed; that the vessel was not lost through the perils of the sea; that the plaintiffs were not interested in the vessel in the manner alleged; and that, though the policy was upon the joint interest of plaintiffs, yet Jacob Insley had disclaimed and denied the authority to insure, and had effected a policy on his interest elsewhere, and, upon the loss happening, had received indemnity.
    The first mate (objected to as interested) proved, that when the vessel struck on the Alligator Reef, where she was lost, it was about four and a half o’clock in the morning, rather before light, and she was going through the water about nine knots, with studding sails set, and that she was out of her course, owing to a mistaken allowance for the action of the currents. At the time of the loss, Jacob Insley was on board the brig in the capacity of supercargo, but did not interfere in the navigation of the vessel. The defendants gave evidence of the declarations of Esau Insley during his illness, that, if he were on board, he would run the vessel on a rock, as she was losing money, and the insurance would make it up. They then proved the order to insure $5000 on the brig, valued at $10,000, given by Jacob on behalf of himself and Esau Insley. Also a policy of insurance by the Atlantic Office of New York for the same amount as the one in question for account of plaintiffs : together with the affidavit of Jacob Insley, presented to the Atlantic Company at the time of the settlement of the loss by them, that this was the only policy on his half of the vessel, and that it was made for his sole account, and that the half of the vessel belonging to Esau ivas insured in Philadelphia by his orders. The plaintiffs proved the mortgage by them to Tompkins and Coale to secure two notes, which were afterwards endorsed to Iluston and Child, who were represented by the plaintiffs’ counsel.
    Findlay, J., instructed the jury, (in answer to plaintiff’s points, that the affidavits of Jacob Insley amounted to an abandonment of the policy by him, and, therefore, there could be no recovery but for one-half of the policy — and the evidence did not show a loss by the perils of the sea,) that, if the stranding was, by design of the insured, to defraud the underwriters, there could be no recovery, and that a loss by stranding was a loss by the perils of the sea.
    ■As to the question of loss by negligence — If the vessel was provided ivith a competent captain and crew, when the risk commenced, it was no defence that one of the perils insured against happened through the negligence of the captain and crew.

    On the first point, he said: The affidavits, showing a misstatement to the other underwriters, did not amount to an abandonment; and the question, whose interest was insured by defendants, was one of fact. That a mortgaged vessel might be insured for its full value.
    The errors assigned, which were relied on, or argued by counsel, were: the charge as to the disclaimer by J. Insley; that there could be a recovery on all the counts; that the existence of the mortgage had no effect on the question of fraud, or on the right of plaintiff to recover. 8th. That, if the loss was by negligence of the master or crew, the plaintiffs might recover.
    There was a point made below as to the effect of a pendency of a foreign attachment; but it was not noticed in this court during the argument.

      F. W. Hubbell, for plaintiffs in error.
    The court misconceived the point taken below. There is no doubt that a loss by stranding is a loss by the perils of the sea; but a loss by design, of which there was evidence, was not by the perils insured against. The eighth point is the main one to be argued, and a stronger case of negligence cannot be shown. The weather was pleasant, so that all sail was set before daylight, and yet she bilged. The old cases are uniform that the insurers are not liable for a loss which is the result of ignorance or carelessness of the master: Goix v. Low, 1 Johns. Ca. 347; Tatham v. Hodgson, 6 Term Rep. 659; Gregson v. Gilbert, Park on Insurance, by Hilyard, 138; S. C., 3 Doug. 232; Vos v. Insurance Co., 2 Johns. Ca. 187; where it is decided all losses by acts of the master less than barratry, must be borne by the owners. Here there could be no barratry, since the owner was on board: Grim v. Phœnix Insurance Co., 13 Johns. 457. The same rule is uniformly-applied to deviations when, from any motive, not barratrous; when the insurance is discharged: Marsh. Ins. 518; Siordet v. Hall, 4 Bing. 607; Phyn v. Royal Ass. Co., 7 Term Rep. 505; 1 Philp. Ins. 593; Brazier v. Clap, 5 Mass. 1; Ellery v. N. E. Ins. Co. 8 Pick. 22; Tanner v. Bennett, 1 Ry. & Moo. 182; Hodgson v. Malcom, 5 Bos. & Pul. 336; Carruthers v. Sydebotham, 4 M. & Sel. 77; Parkin v. Tunno, 2 Campb. 59. Tait v. Levi, 14 East, 481, is a strong case to the point; the insurers were not to be liable higher up than Tarragona. The captain, through ignorance of the coast, put into Barcelona, and it was held to be either a deviation or a breach of the implied warranty that the captain would have sufficient skill to get into Tarragona. In Cleveland v. Union Insurance Co., 8 Mass. 308, the negligence of the captain in leaving the ship’s papers behind, which was the probable cause of her capture, was held to discharge the underwriters. 14 Mass. 1, and Stone v. Nat. Ins. Co., 19 Pick. 34, are to the same effect. Here was, then, an unbroken series of authorities down to 4 Maule & Selwyn. The new authorities have gone on a mistaken application of the rule in fire insurances. There the very object is protection against carelessness. This innovation was first applied to fire in cases of marine risk, and then expanded to include barratry, as defined by continental jurists. The English courts, and the Supreme Court of the United States, have adopted these views. New York and Massachusetts adhere to the old rule, as in England they still do in cases of deviation by ignorance.
    In Busk v. Roy. Ex. Ins., 2 Barn. & Ald. 73, a loss by fire, owing to negligence, was held to be covered by a marine policy against fire, while it was admitted that a loss by perils of the sea, occasioned by negligence, was not within the rule. In Walker v. Maitland, 5 Barn. & Ald. 171, the loss by perils of the sea, though occasioned by negligence, was held to be covered by the policy: 14 E. C. L. R. 38, 130; Green v. Elmslie, Peake, 212. In the Patapsco Insurance Co. v. Coulter, 3 Peters, 222, this rule was followed, based upon a false definition of barratry, viz. carelessness of the master; and there, Baldwin and Thompson, Js., dissented. In Columbia v. Lawrence, 10 Peters, 517, it was said there could be no barratry on land ; and, in Waters v. Merchants’ Insurance Co., 11 Peters, 221, that a clause against barratry was not essential to protect the insured from negligence. The question is, therefore, whether we will adhere to the common-law rule, which is the law of the two principal commercial states, or fall in with the new cases which are shown to stand upon a definition of barratry not known to our law.
    The witness was incompetent, for liability on account of his negligence: Gardner v. Small, 2 Hayw. 349; Jordan v. White, 4 Martin N. S. 335; The Hope, 2 Gall. 48; Bird v. Thompson, 1 Esp. 339; Fuller v. Jackson, Bunb. 140; Ibid. 203; 4 Term Rep. 589; 3 E. C. L. R. 53.
    It was essential to the right of recovery to show an authority to insure : De Bolle v. Penna. Ins. Co., 4 Whart. 68. But here one of the owners disclaimed all interest in this policy : Higginson v. Dall, 13 Mass. 96; Gordon v. Mass. Ins. Co., 2 Pick. 249; Williams v. Smith, 2 Caines’s Ca. in Err. 110.
    • The mortgage was evidence of fraud, where the Insurance was to the'full value, or else that owner could not recover more than his interest: Columbia Insurance Co. v. Lawrence, 10 Peters, 507; Carpenter v. Prov. Wash. Ins. Co., 16 Peters, 495; Murray v. Columbia, 11 Johns. 302.
    Cadwalader, contra.
    The question is no longer open on principle or authority. In looking at the cases, the broad principle must be borne in mind that the proximate cause of the loss must her insured against. This disposes of all the cases of deviation. The case in Parke was not a peril insured against, and it’is disposed of' by the report in 3 Doug. 232. The case of the sugar-house, 4 Camp. 360 and 362, shows that it was distinctly understood that negligence was no defence, if the proximate cause was within the policy: Holt’s N. P. Ca. 126. Walker v. Maitland, ut sup., was a loss through all hands going to sleep. In Bishop v. Pentland, 7 Barn. & Cress. 219, there was a stranding for want of sufficient cable ; Shore v. Bentall, Ibid. 798, n.; in Phillips v. Headlam, 2 Barn. & Ad. 380, through not taking a pilot, the vessel being inward-bound. In Dixon v. Sadler, 5 Mees. & Welsb. 405, affirmed in 8 Mees. & Welsb. 895, in error, the plea was that the vessel was rendered unseaworthy by the captain throwing the ballast overboard, and judgment on demurrer was given for the plaintiff. The civilians hold the same doctrine: Henderson v. Western Marine, 10 Robin. La. 164; 2 Magen, 323, 334. On these subjects, they are authorities here; for the law merchant, like the law of nations, is of universal application, and there must be uniformity: Swift v. Tyson, 16 Peters, 18; Miller v. Bartlet, 15 Serg. & Rawle, 139. The supposed conflict of authorities in America does not exist. The decision in Patapsco v. Coulter, 3 Peters, 222, had been preceded by an award of five merchants in this court in an action for the same loss: December Term, 1824, 97, 102. In Waters v. Merchants, 11 Peters, 213, the rule was held to prevail, though there was no clause against barratry. The Massachusetts cases were explained in Copeland v. New Eng. Mar. In., 22 Pick. 135. The case in Ohio was overruled in Perrin v. Protection, 11 Ohio, 170, 172; Georgia v. Dawson, 2 Gill. 370. In Pairo v. The Am. Ins. Co., MS., this court decided the same rule. Mr. J. Rogers said to the jury, “ Whether the loss arose from the fault of the captain or the unskilfulness of the pilot, is wholly immaterial. The company are liable,” and the judgment was aflirmed. Supposing the New York cases to have been the other way, the doctrine is there considered as exploded. In 3 Hill, 253, 255, 256, the judge below (Kent) condemned the old doctrine of their courts, and Cowen, J., in reviewing the decision, avoids noticing that remark.
    As to the witness, it is unnecessary to cite cases. Unless the action is grounded on the negligence, the agent is always competent ; 3 Barr, 342.
    The owner need not specify the encumbrance; 10 Pick. 40, 43; Columbia v. Lawrence, 10 Peters, 512; 2 Phil. Ins. 660; Findlay v. Franklin, 6 Whart. 483, 496, 498. The form of the policy, “ for whom it may concern,” has been adopted since a doubt was expressed as to a lender on bottomry being protected; Kinney v. Clarkson, 1 Johns. 386; Crowley v. Cohen, 3 Barn. & Adol. 478. A carrier’s interest was held protected by a general insurance; Wells v. Philada. Ins. Co., 9 Serg. & Rawle, 103; Traders v. Robert, 9 Wend. 409.
    It is doubtful whether the affidavit would have been material, if before the insurance was made; Curry v. Commonwealth Ins. Co., 10 Pick. 535. As it was, it could only be used as an argument to the jury.
    It is admitted all the counts are good, and that defendants did not ask to have the verdict confined to any particular count. In such cases, there must be a technical misjoinder to be recognised by a court of error; Bridges v. Raymond, 2 W. Bla. 800. And since the plaintiff in error has brought up all the evidence, thus showing that a verdict was proper on one of the counts, this court would either remit the record to have the verdict amended, or treat it as already amended; McCredy v. James, 6 Whart. 568. The practice is to allow such an amendment after error; Harrison v. King, 1 Barn. & Ald. 163; Lee v. Muggridge, 5 Taunt. 37; Swinburn v. Jones, 1 Mood. & Rob. 322; Eliot v. Skip, Cro. Chas. 338; Descamps v. Dutihl, 4 Yeates, 442; 2 Dowl. P. C. 76; Petrie v. Hannay, 3 Term Rep. 659; Richards v. Mellish, 3 Bing. 334.

      Rawle, in reply.
    The master was undoubtedly an agent of the owners; Adonis, 5 Rob. 256; Livie v. Janson, 12 E. 648; and the general rule is undoubted, that his principal is concluded by his acts. The cases cited have been shown to proceed on the erroneous definition of barratry, and they are considered, by Phillips, a deviation from the ancient doctrine. The cases in New York support our position, and the definition of barratry is settled here to mean a loss through the fraud of the captain or crew. 2 Wash. C. C. 66; 2 Binn. 574, 579.

      Jan. 25.
   Gibson, C. J.

On the subject of loss remotely oo casioned by-negligence, the law of insurance has undoubtedly been altered in England, to bring it to the law on the continent of-Europe, which treats such negligence as barratry. That it is now treated so by the English courts, is proved by the fact, that though the proximate cause be one of the perils insured against, yet if the remote cause be negligence, they require the assured to count for a loss from barratry, and not for a loss from the proximate cause. That Mr. Justice Bailey considered negligence to be barratry, is manifest from his expression in Busk v. The Boyal Exchange Insurance Company, that where an underwriter takes the superior risk, there is no reason to think he does not mean to take the inferior one; a conclusion that would not follow, if the inferior were a separate risk, and not a part of the superior one. In England, therefore, the modern decisions abundantly show that the limits of the risk from barratry have been enlarged so far as to admit a risk from negligence, provided the vessel were not unseaworthy at the beginning of the voyage, by reason of incompetence on the part of the master and crew. In America, the lead of the English courts has been followed, in effect, by the Supreme Court of the United States, and by the courts of Massachusetts, Maryland, Louisiana, and Ohio, all but the last seaboard states; and the question is, whether we shall fall in with the tide, or stand out on the ground of the old English law. It is true that the courts of New York have not yet abandoned their primitive decisions, but in that respect our position is a more favourable one, standing, as we do, unfettered by any precedent of our own. The courts of Massachusetts, however, have abandoned theirs, and they have embraced the new doctrine, though they had at first proceeded in a different direction; a sure proof of its convenience and justice. But the American decisions, though agreeing with the modern English doctrine in their results, do not exactly agree with it as to the process by which they are obtained. The English courts require the assured to count for a loss from barratry, and they consequently' treat it as having happened directly from the peril insured against by that name: the American courts require him to count for a loss from a peril insured against as the proximate cause, of which negligence was the remote one; thus holding the assured bound no further than to furnish a competent master and crew at the beginning of the voyage, without implicitly warranting that they will be diligent to the end of it. This is the principle on which the American doctrine has been put by Mr. Justice Story, in Waters v. The Merchants’ Louisville Insurance Company, 11 Peters, 223, in which he exhausted the subject, in his usual masterly manner, and placed the decision on safe ground, when he placed it on the maxim that the proximate cause alone is to be regarded. There is, therefore, no necessity to hold negligence to be barratry; and according to the principle in that case, the assured could not have recovered, if his declaration had contained a count for a loss from no other peril. But the doctrine in the two countries produces the same results; and the difference in it being merely modal, is unessential. How will it operate on the interests and the integrity of the parties ? It might perhaps be thought, that to exempt the assured from consequences produced by the negligence of his servants, would relax his care in procuring a master and crew of tried vigilance, and thus, at the expense of good faith, increase the chance of a loss, which would fall somewhere; but if the insurer choose to take the risk of it for an increase of premium, why should he not be at liberty to do so ? Public policy requires no more than that a man be not suffered to insure against his own knavery, which is not to be protected or encouraged by any means; for though the maxim respondeat superior is applicable to the responsibility of a master for the acts of his servants, yet the insured, so long as he acts with fidelity, is answerable neither for his servants nor for himself. This is certainly an implied condition of the contract of insurance against fire on land, and there is no perceptible reason why it should not be an implied condition of the contract of insurance against fire at sea.

Thus Ave see that there is nothing impolitic, unreasonable, or unjust, in the modern dpetrine; and why shall we not adopt it at the outset ? The law of insurance is a branch of the public law; and I feel myself as firmly bound by the decisions of the English and American courts, in regard to it, as I do by our own. I deem it to be vitally important that there be consistency of decision on all questions of commercial law, and to insure it, I ayouM adopt, Avithout inquiry, the larv of the Supreme Court of the United States, as a common standard in commercial cases, even in regard to which the state courts have no common superior; not because I deem that court to be superior to them in legal Avisdom, but because they would be more ready to folloAV its decisions, by common consent, than they ayouM be to follow the decisions of a court in any particular state. A diversity would lead to confusion and uncertainty, and eventual detriment; for it must be apparent, that to rule the present case in favour of the company, instead of being beneficial, would be ruinous to it and every other company in Philadelphia; for if owners were not allowed to insure against the slips and omissions of their mariners, the business of insurance would go elsewhere.

There are other points in the cause of less importance and no greater difficulty. The testimony of the master and sailors, to which the defendants took exception, was competent, not because the defendants would be liable, in the first instance, to bear the burden of’ their negligence, but because their ulterior liability to the plaintiffs, in case the company were unable to pay the loss, would be a remote and contingent one. Again, it is contended, that the counts in the declaration are repugnant, and that a general verdict on them cannot be sustained. It is true that separate interests in the vessel are laid in different persons; but the policy is joint, and the suit is consequently joint, in which the plaintiffs are the legal party, and consequently entitled for whomsoever it may concern, without setting out the equitable and derivative interests, which are no part of the title. Even as trustees, they could recover, by showing a fiduciary interest; for as a suit on a sealed policy must be brought in the name of the covenantee, if the plaintiffs could not recover, the other parties would be without remedy; and this disposes also of the objection that the vessel was mortgaged to the extent of her value. ■ The assignments of error, therefore, are not sustained.

Judgment affirmed.


author: Hibson, C. J.

text:
    Hess v. Shorb.
    A judgment for the garnishee in an attachment in execution, on his answer, is improper ; the court can do no more than refuse judgment for the plaintiff Testator directed his land to be sold by his executor after the death of his widow, and the proceeds distributed among liis three children. The interest of a child cannot be attached in the hands of the executor before the event happens on which the power may be executed. Per Gibson, C. J.
    In error from the Common Pleas of Northampton.

      Dec. 20. The plaintiff filed interrogatories in an attachment on a judgment against S. Miller. The garnishee, denying the possession of any goods, &c., admitted the defendant was entitled to an estate in remainder, which was directed to he sold by the will of defendant’s father after the death of the widow. He also stated that he supposed he would he the proper person to sell if he survived the widow, and that he was the executor of the will. On the hearing, the will of testator was read, which directed the land to be sold by the executors after the death or marriage of testator’s widow, and the proceeds distributed among his children, of whom the defendant in the judgment was one. The court gave judgment for the garnishee.
    The error assigned was in giving judgment for the garnishee, and that it should have been for plaintiff quando.

      M. H. Jones, for plaintiff in error.
    No judgment can be entered for the garnishee, otherwise the plaintiff will be deprived of his right to a trial by jury: Adlum v. Yard, 1 Rawle, 169—180; Walker v. Wallace, 2 Dall. 113. The rule is that the plaintiff may elect to rely on the answer of the garnishee.
    But the answer was like a plea of plene administravit, and the plaintiff was entitled to a judgment with stay of execution until the money was received under the execution of the power: Reinhart v. Harrison, 1 Bald. 177. No injury could result-from this, as a sci. fa. must precede the execution: Mara v. Quin, 6 Term Rep. 1; Troub. Hal. Prac. 232; or the court could make such order as will secure the garnishee: Ayccnena v. Peries, 2 Barr, 286; 4 Serg. & Rawle, 213.

      Reeder and Porter, contra.
    This is but an experiment to get round the decisions in Morrow v. Brenizer, 2 Rawle, 290; Allison v. Wilson, 13 Serg. & Rawle, 330; Steeck v. Mackey, 4 Watts & Serg. 196; and fasten a lien on a contingent right to mere personal property.

      Dec. 27.
   Hibson, C. J.

The exhibition of interrogatories in attachment, is a measure to charge, and not to discharge the garnishee. It is in the nature of a bill of discovery; and if he confess nothing, the parties are where they started. If he disclose enough to show- that the plaintiff has a case, there is to be judgment on his confession without going further; but if his answers contain no more than a denial of the facts charged, the plaintiff is no more bound by it than he would be bound by á denial in an answer to a bill in chancery. All that can be said in such a case is, that the interrogatories have failed to produce the effects expected from them. But that does not preclude the plaintiff from going before a jury to make out his case by proofs aliunde. It is said, however, that the 'answers were treated as a ease stated by tacit consent; and that the cause was argued on the legal effect of the facts which they disclose. It is doubtless so; but if counsel find themselves .caught by indulgence in a practice so loose, it is out of our power to extricate them. The plaintiff is certainly entitled to a trial; and for that reason we are bound to reverse the judgment, though it is impossible to see how any evidence can make the supposed interest in contest a subject of attachment. Nothing is admitted to be in the garnishee’s hands but a naked and contingent power to sell the testator’s land at the death of his widow, and distribute the proceeds of it to the legatees. If judgment were presently rendered against him, how could his estate be discharged of the debt if he died before her ? He can have nothing in his hands to answer it till then; and even should he survive her, the legatees may elect to take their shares as land, and dispense with a sale for conversion altogether. But even on the most obvious principles, a naked power is not a subject of execution under the statute, any more than it is so at the common law. The present is an attempt to get round the principle of Allison v. Wilson, and Morrow v. Brenizer, and it must not be allowed to prevail. Judgment reversed, and procedendo awarded.


author: Coulter, J.

text:
    Goundie v. Northampton Water Company.
    A recovery in trespass against officers and agents of a corporation, is not evidence against the corporation without proof of privity.
    The effect of a deed of partition is not to alter the titles of the parties, but to designate the boundaries.
    Testator having devised certain lands to his children in severalty, and the residue in common, one of the children died, and his estate descended to his sisters. M., one of the children, joined in a conveyance with her husband of the property devised to her in severalty, which was reconveyed to him in fee. M. and her husband then joined in an indenture with the other devisees and heirs, which recited that some mistakes had been made by testator in the boundaries of the tracts devised; and to avoid hardships and difficulties an equal partition had been agreed upon. In this deed M.’s share was allotted to her and her heirs in severalty. The title to the lands previously conveyed to her husband is not thereby affected.
    A conveyance by husband and wife of the wife’s land, under the act of Assembly, though not made to a purchaser for valuable consideration, passes her title.
    Where more than six months had elapsed before the registry of conveyances to different purchasers, a registry of the earlier deed before the purchaser under the subsequent conveyance had recorded that, is notice to purchasers under the subsequent deed, although possession has been taken, and improvements made by tho second purchaser. And after such registry, the owner need not give notice of his title at a sheriffs sale of the other title, nor to one making improvements.
    The Commonwealth alone can object to a want of capacity in a corporation to hold land which it was not authorized by its charter to purchase.
    In error from the Common Pleas of Lehigh.

      Dee. 20, 21. Ejectment by defendants in error. — The title exhibited by the plaintiffs below was the will of James Allen in 1778, by which he devised certain pieces of land, including the premises in question, according to the verdict of the jury, to his daughter Margaret, wife of William Tilghman; to his son James, and his daughters Ann- and Mary, he gave other specific property, and the residue of«his estate among his children equally. In May, 1798, William Tilghman and wife, Ann Allen, and H. Livingston and his wife Mary, late Allen, joined in an indenture tripartite, reciting the death of James Allen, son of the testator intestate, and that there was reason to believe the testator had made some mistakes in the boundaries of the lots devised by him, and that to avoid the hardships and difficulties resulting therefrom an equal partition had been agreed upon under a reference to three persons. In- this partition, as to Mrs. Tilghman’s share, it was said, “ and the said Margaret Tilghman shall hold to herself and her heirs and assigns for ever in severalty,” &c. The plaintiffs then gave in evidence, under objection, a conveyance of the land devised in severalty to Mrs. Tilghman, by William Tilghman and wife, to Davis, and a re-conveyance to William Tilghman, both dated on the 3d April, 1798. The consideration in these deeds was’ nominal. It will be observed that these deeds were prior to the partition, and the objection was founded on the supposition that by that partition the title was re-vested in Mrs. Tilghman. They further, under objection, gave in evidence a conveyance of the land in question by William Tilghman to the Northampton Bank, dated April 1,1823, recorded June 7, 1834; and a conveyance by the bank to the plaintiffs in 1838. And they also, under objection, gave in evidence a certified copy from the land-office of drafts of lands lying in the Forks of the Delaware. The defendant’s title was a conveyance of the lot in question to Miller, by the two sisters of Mrs. Tilghman, who were her heirs, by deed, in 1828, recorded in 1841. In 1835, Miller conveyed- to Banker, the deed being recorded in 1841. In 1837, Binker’s property was sold by the sheriff, and the grantee conveyed to the defendant below, whose deed was recorded in 1840; and there was evidence that at the sheriff’s sale no notice had been given of the plaintiffs’ title. He then gave in evidence a private act of the legislature in 1799, (to be found in 5 Whart. 46,) which recited the seisin of William Tilghman as tenant by the curtesy of divers lots in the town of Northampton, (in which the lot in question lies,) and empowers him to convey, on ground-rent, during the minority of his son; also, the act of 1818, (lb. 51,) with the same recitals, and authorizing him to make absolute conveyances during the minority of his grandson. It was admitted he died in 1820. He then proved that after Miller bought, a survey was made for the bank in the presence of the president, when Miller was present, which excluded the ground in question; but before defendant purchased he had notice of the plaintiff’s claim. It also appeared that Miller had erected a mill, which was driven by water carried through a trunk on the premises in question. In consequence of an alteration in the trunk interfering with the plaintiffs, it had been cut away. He also offered in evidence the record of a recovery in an action of trespass by the present defendant against Ebner and others for cutting away this trunk, coupled with evidence that the defendants there were officers and agents of the present plaintiffs, and attempted to justify under the alleged title. The plea there was, “Not guiltyand the court rejected it. He further proved the charter of the plaintiffs, which authorized them to take and hold lands necessary for the erection of their works.
    The points made by the defendant below were, that the conveyances and the recitals in the acts of the legislature showed that William Tilghman had but an estate by the curtesy; that if Miller took possession, and made valuable improvements under his deed of 1828 before plaintiff’s conveyance of 1823 was recorded, he had the better title. If the officers of the corporations knew of the sheriff’s sale, and gave no notice of their title, they could not now set it up. If the lands were not necessary to plaintiff’s works, they could not take and hold, and hence could not recover. The same point was made as to the title of the bank.
    His honour, Banks, P. J., instructed the jury, that William Tilghman’s title remained in him after the partition. His conveyance being first recorded, gave title to the land. The other points were negatived.
    The admission and rejection of the evidence, and the answers to the points proposed, were the errors assigned.

      J. M. Porter, for plaintiff in error.
    The deed of partition executed by William Tilghman re-vested the title in his wife and her heirs, which it is the policy of the law to do, and the parties claiming under him are estopped by his admissions. The effect of the partition is to assign each party their separate estate: Feather v.Strohecker, 3 Penna. Rep. 505. The acts of Assembly obtained by him show his own view of the matter.
    The conveyance and reconveyance had no effect upon her title; the act authorizing conveyances by femes covert is confined to those for a valuable consideration; this is declared in the preamble of the act of 1826. Neither of these corporations could take land, unless specially authorized by their charter: Wolf v. Goddard, 9 Watts, 544. The drafts were but extracts, and no authority to make them was shown: Wilson v. Stoner, 9 Serg. & Rawle, 39; Biddle v. Shippen, 1 Dall. 19. The record was evidence, since the plea of liberum tenementum is not necessary to admit a defence on the title, and they attempted to justify on that: Kerr v. Chess, 7 Watts, 371; Foster v. McDivit, 9 Watts, 349.
    Miller being in possession, and making improvements, was in as good a position as if he had given notice by recording; Jaques v. Weeks, 7 Watts, 276; Pierce v. Turner, 5 Cranch, 154; Green v. Drinker, 7 Watts & Serg. 442; 3 Yeates, 359; 2 Ib. 259; 6 Binn. 119. When this case was here before, 5 Watts & Serg. 49, this point was not made. They were bound to know of the sheriff’s sale, and give notice: Boggs v. Varner, 6 Watts & Serg. 472.
    The court erred on the question of the capacity of the corporations ; they were bound to show the purchase was within the license of the charters.

      King, contra
    The partition was not of the lands held by Tilghman under the conveyance, but of those held by descent. But what is the effect and design of a partition; not a conveyance, but separation merely. It merely determines the boundaries to the estates. The question as to the corporations has been determined in Leazure v. Hillegas, 7 Serg. & Rawle, 313; and that as to the drafts as late as Farr v. Swan, 2 Barr, 245. They were not received as evidence of title, but of locality. To conclude the corporation by the action against their agents, there must be proof the acts were done by authority: Hurst v. McNeil, 1 W. C. C. R. 75.

      Jan. 8.
   Coulter, J.

There is nothing in the first bill of exceptions to evidence. The deeds therein mentioned were properly admitted. The objection made by the defendant, that they were not relative or pertinent to the issue, is not sustained in point of fact; because they are material in making out the chain of title, by which the claim of the plaintiff below is sustained. The argument of the counsel for the plaintiff in error here, was as to the legal effect of the deed when connected with other facts. But whatever that might be was a matter of law, subject to instructions from the court when the whole case ivas submitted to the jury, and afforded no ground whatever for their exclusion as evidence. In McDill v. McDill, 1 Dall. 63, it was ruled, that any deed, when duly proved, might be given in evidence. But in subsequent eases—Faulkner v. Eddy, 1 Binn. 190, and Peters v. Condron, 2 Serg. & Rawle, 80—Chief Justice Tilghman said, that decision carried the law too far. It is now settled, that'to entitle a deed to be received in evidence, the grantor must have some interest, either in law or equity : 3 Watts, 95. But any evidence of title, however small, is sufficient: Zeigler v. Hautz, 8 Watts, 380. The grantors had some interest, undoubtedly: even the plaintiff in error admits it.

, The second bill of exception’ is of the same character. The grantor in the deed therein specified had an interest in the land in dispute, and the plaintiff below claimed under that deed.

The third bill of exceptions is also in the same category, precisely. The deed therein mentioned was part of the chain of title under which the plaintiff below claimed the land in dispute, and the legal effect of that deed was the subject of instruction from the court to the jury.

The certified copy of an old connected draft of adjoining surveys, found in the land-office by Jacob Sallade, surveyor-general, being admitted in evidence, and also a certified copy of a survey of a tract of land, in the name of Joseph James, certified from the land-office, furnish the fourth bill of exceptions. These copies of old connected drafts of the adjoining surveys found in the land-office, although they could not be operative as distinctive evidence of title, or any evidence of title, might be extremely -useful in fixing boundaries, and as illustrative of old lines; and we perceive nothing improper in their admission under the circumstances of the case. It is true that a survey cannot be given in evidence, without showing an authority to make it, or that it had existed and has been lost; but that is when it is offered as part of the process of acquiring title. Nothing is more common, however, than to receive the drafts of a surveyor in actions of ejectment, when the controversy is about boundaries, although he was employed by the party. And the courts appoint artists to survey the disputed part, and make drafts of the contiguous and adjoining surveys, when the dispute is in relation to boundaries. These drafts are not evidence of title, but they are evidence of locality, and, connected with other evidence, go to the jury for their value. A connected draft from the surveyor-general’s office is evidence not to make title, but to show whether there be any, and what, interferences: Robeson v. Gibbons, 2 Rawle, 45. Certified copies of papers in the land-office are admissible: Vickroy v. Skelley, 14 Serg. & Rawle, 372.

The fifth bill of exceptions is as to evidence rejected, which was offered by the defendant below. The offer did not go far enough. The record offered in evidence did not show that the Water Company was a party, but the contrary, and the defendant did not offer to show that it was privy. The evidence was therefore rightfully rejected, under the well-established rule, that records are only evidence between parties or privies. It was not even offered to show, in connection with the record, that the Water Company had any notice of the proceeding.

The court below could not have instructed the jury as prayed for, in the two first points submitted by the defendant, without committing the most flagrant error.

The partition did not convert the title to all the lands assigned to Mrs. Tilghman and her husband, by the operation of that partition to a title in fee-simple. There was no owelty, no bargain and sale, no creation of title or estate, nothing but a mere separation of the share of one party from the share of another. A partition leaves the title of the parties as it was. Mrs. Tilghman had the same title after the partition which she had before. That a partition was not conclusive upon the title of any one was ruled by this court, in a case decided at the last Pittsburgh Term, and not yet reported : Costen v. Merchants’ and Mechanics’ Bank. This alone would have been sufficient to justify the court in refusing the instruction prayed for.

But there was a mist thrown over this part of the case by the elaborate argument of the experienced and sagacious counsel of the plaintiff in error, which a short statement of the facts will clear away. By the will of the elder Allen he devised to each of his daughters portions of real estate in severalty, and also a portion to his son James in severalty, and then devised all the residue of his estate to his. children as tenants in common. James died intestate, and his part descended to his sisters as tenants in common. So that Mrs. Tilghman held a certain part in severalty, and of this part, or a portion of it, she joined in a deed with her husband to Davis, who conveyed back to William Tilghman in fee — and these were the two first deeds which the defendant below wished to shut out. But she also held,'in common with her sisters, certain other portions of the estate of her father, which fell to her by the death of James, and of this part they agreed to make partition, and as one of the sisters was dead, leaving minor children, an act of Assembly was procured and persons appointed to make partition, wbicb was done, and in the deed, as there was some difficulty about boundaries of those parts devised to the sisters in severalty, there was assigned to each their portion of that held in common, and also that held in severalty by metes and bounds, so as to fix exactly the boundaries — a clumsy mode, doubtless, for such persons to adopt, but it was such as they chose. The attempt of the defendant below is to make that deed of partition revest in Mrs. Tilghman the tract of land which she and her husband sold to Davis, and Davis conveyed back to William Tilghman in fee, and which he transferred for a valuable consideration in her lifetime, and to establish, that after the death of Mrs. Tilghman her husband was only tenant by the curtesy. But we are of opinion that the partition and the act of Assembly, in point of law, as they were clearly intended in point of fact, left the title of William Tilghman undisturbed, on his own right, as tenant in fee, and that the sale of it by him vested the title in fee in the purchaser. There is nothing in the third point submitted: The deed from Tilghman to the bank was upon record before Livingston sold to Miller, and afforded the notice which the law requires.

The fourth point of the defendant below has nothing in it. If the bank or Water Company, during the time they held the land, encouraged the defendant to purchase the title of Livingston, and encouraged him to make large improvements on the faith of that title, there might be something in it. But not giving actual notice of their title, even if they knew of defendant’s purchase, when they had put their title on record, and thus given the notice which the law requires, could not prejudice them. The last two points put, together are, that, as there is no evidence that the Northampton Bank acquired this land, to secure a debt, or for the use of carrying on their operations, it could neither hold nor sell, and that Tilghman’s deed to the bank, and that of the bank to the Water Company, were null and void, and that therefore the plaintiff cannot recover.

But these positions are as invalid as the others taken by the counsel for plaintiff in error. A corporation could not hold lands in Pennsylvania without a license by law; but it had the capacity to contract for them and pay for them, and a deed for full value would doubtless have divested the estate of the grantor, and vested it in the corporation, subject to the rights of the Commonwealth. And the grantee-might convey, subject to the right of the Commonwealth, who by virtue of the right of sovereignty or eminent domain, would be entitled to the fee. These principles are fully recognised in Leazure v. Hillegas, 7 Serg. & Rawle, 320. There is neither any rule of reason or of law that would assist Livingston or his alienee in their attempt to assume the land sold by Tilghman to ' the bank for full value. The Commonwealth alone, as ultimate owner of the fee, can interpose, and she only on a state of facts different from any disclosed in this case.

Judgment affirmed.


author: Per Curiam.

text:
    Musselman v. The Commonwealth.
    The sureties of a constable cannot take advantage of the neglect of the court to swear the constable or to approve his bond, and they are concluded as to his liability by a judgment recovered against him for his default in executing process.
    Condition in an official bond that a constable shall execute all writs, is not greater than is required by law.
    In error from the Common Pleas of Munroe.

      Dec. 22. Debt against a constable and his sureties on an official bond. The bond was conditioned that Musselman, the constable, should “ execute all writs and process to him directed, without delay and according to law.” This bond was produced by the clerk of the sessions from among the records of the court, but there ivas no entry of the filing or approval on the bond or on the record, or of the swearing of the constable. The plaintiff showed a recovery against one Van Horn before a justice, on whose docket there was an entry of an “execution, issued January 6, 1843,” and “delivered to Musselman” by plaintiff. This writ had never been returned. The execution bore date 23d January, and the date was in the handwriting of the plaintiff in the execution, to whom it had been given by the justice. The court rejected evidence that Musselman had been removed by the court and another constable appointed in his stead on the 7th February.
    Before the bringing of this suit, the plaintiff in the execution had proceeded against the constable alone, and recovered final judgment for his default in not returning the writ.

      Deeder, for plaintiffs in error, made three points.
    1. That the bond was not taken as directed by the act of 1834, since that required an approval of the court and the oath of the constable, neither of which appeared by the record, nor could they be supplied by parol: Loughry v. McCullough, 1 Barr, 503; Comth. v.
      Laub, 1 Watts & Serg. 261. 2. That the condition was beyond the terms required by law, since only legally directed writs must be executed; here all writs are named. This discharges the surety, 1 Watts & Serg. 261. 3. That the constable having been removed within twenty days from the receipt of the writ, and hence not having the time allowed by law for executing it, was thereby discharged.

      Porter, contra.
    The approval, &c., is for the benefit of the ereditor, not for that of the constable. The condition, taken from the form of the sheriff’s bond, is not larger than the law requires. All writs, certahily, means all legally directed writs. The sureties are concluded by the judgment against the principal. He cited Armstrong v. United States, 1 Pet. C. C. 47; McCaraher v. Comth., 5 Watts & Serg. 21; United States v. Howell, 4 Wash. C. C. R. 623; United States v. Brown, Gilp. 171.
   Per Curiam.

There is nothing in the case to sustain any of the exceptions. The constable’s official bond was found among the records of the office in its proper place; and though no entry of the approval and filing of it was shown, the presumption is that every thing was regularly done. Incalculable mischief would be done if these omissions were available. Besides, it would not be with the sureties to make them ground of objection; for the approval and filing is not to protect them, but to protect the execution-creditors. The exclusion of the defendant’s evidence of the constable’s removal within the twenty days, might, perhaps, have been erroneous, had not the sureties been fixed by the plaintiff’s recovery against the constable; but on the principle of Masser v. Strickland, 17 Serg. & Rawle, 354, and other cases of the stamp, that a recovery against the constable concludes his sureties, the court was warranted in rejecting the defence.

Judgment affirmed.


author: Bell, J.

text:
    Miltenberger v. Schlegel.
    A mere direction to a devisee to pay a legacy does not create a charge on the land devised, but the devisee becomes personally bound by acceptance.
    And though he be named as executor in an action for the legacy, that may be treated as surplusage, if a legal ground for personal liability is set forth in the nar-r.

    And where terre-tenants are named, merely to charge their land, and the lands are not
    chargeable, though the jury has been sworn as to them, a verdict is properly taken against the defendant alone, whose sole personal liability was set forth in the narr.

      Where facts are set forth in the narr, from which a legal liability arises, the want of an averment of such liability, or of a promise to pay, is cured by vordict.
    Devisee, bound to pay a legacy, after a settlement of the amount due to the legatee, gave her a sealed acknowledgment of the settlement, and of the amount thereon found to be due. This does not operate as a merger of his previous liability, being but evidence of a settlement of the account.
    In error from the Common Pleas of Northampton.

      Dec. 24. This was an action against Miltenberger, surviving executor of Miltenberger and the tenants of the testator’s land. The declaration recited the summons of the defendant, and terre-tenants, and the will of testator, wherein he devised certain lands to Miltenberger, and directed that he should pay certain sums of money to persons therein named, among whom was the plaintiff. It then averred that Miltenberger became the surviving executor, and that the personal estate was more than sufficient to satisfy the debts of testator; that Miltenberger accepted the land devised, and with the terre-tenants took possession, and that he had not paid the legacy bequeathed to plaintiff, although often requested, &c.
    The jury were sworn as to the defendant and terre-tenants, counsel objecting to their being joined. It was proved that, in 1842, Miltenberger went to the plaintiff’s house for the purpose of having a settlement. He read from his hook the charges of payments made, and the witness set down the amounts, to which plaintiff assented, and after calculations a balance was agreed upon, and he gave the plaintiff the following instrument:—

      u December the 22,1842, a settlement was made between J. N. Miltenberger, the executor of J. N. Miltenberger, deceased, and A. E. Schlegel, one of the heirs, and have settled all principal and interest, and I the undersigned remain indebted to Anna Elizabeth Schlegel the sum of two hundred and twenty-two dollars; this I acknowledge with my own hand and seal in the presence of witnesses.
    «Nicholas Miltenbeugeb, [L. S.]
    « E. Dietteh,
    « D. Dietteii.”
    On this was endorsed various calculations.
    The plaintiff then gave him a receipt at his request, and on his declaration that it would only he evidence of a settlement made that day. The defendant then offered to read from a hook, which he stated to be his book of original entries, charges for cash payments to the plaintiff, for the purpose of showing that there had been errors made in the addition at the time of the settlement. But there was no direct evidence this was the book he then read from, and the court rejected it.
    The court (Banks, J.) directed a verdict, if for plaintiff, to he against the defendant alone, and in favour of the terre-tenants.

    The rejection of the book as evidence, the direction as to the form of the verdict and recovery, though the legacy was no charge, were the errors assigned.

      Maxwell and Porter, for plaintiff in error.
    If the legacy was a charge on land, there could be no recovery, since the remedy is in the Orphans’ Court: Downer v. Downer, 9 Watts, 60; and under this aspect only is the narr. good, since there is no averment of a personal liability, or of a promise to pay.
    There is also an objection that the action is against him as executor, while the evidence shows personal liability exclusively, and these cannot be joined: 1 Chitt. Pl. 205; Strohecker v. Grant, 16 Serg. & Rawle, 237.
    There was also a merger of the liability in the bond: Stewart’s Appeal, 3 Watts & Serg. 476; Dewitt v. Eldred, 4 Watts & Serg. 422.
    Ihrie, contra.
    There is a liability arising from the acceptance of the land; Lobach’s Estate, 6 Watts, 169; and the ground of this liability is set forth in the declaration. As to the addition to the defendant’s name, that is settled to be surplusage.

      Jan. 8.
   Bell, J.

Though it does not clearly appear from the

record in this case, as it is spread upon our paper books, it would seem John Nicholas Miltenberger, the devisee, had aliened some portion of the lands devised to him by the will of his father, before the institution of this action. Acting upon the notion that the legacies or sums of money which the testator directed his son and devisee, the defendant below, to pay, from time to time, to his other children, was a charge upon the land devised, the plaintiff below, pursuing the old form of action pointed out in McLanahan v. McLanahan, 1 Penna. Rep. 113, and other cases, sued Miltenberger as executor as well as devisee, and caused his alienees to be summoned as terre-tenants of the land supposed to be burdened with the charge. But it is clear, and indeed now admitted, that in assuming the legacy sued for to be so charged, an error was committed, for a devise of land, simply, accompanied by a direction to the devisee to pay certain sums to others, does not constitute those sums an encumbrance upon the devised lands, but they become a personal charge on the devisee, in respect of the land devised to him, which, by acceptance, he undertakes to discharge: Brandt’s Appeal, 8 Watts, 198; Dewitt v. Eldred, 4 Watts & Serg. 422; Lobach’s Estate, 6 Watts, 169. Had the plaintiff’s original idea been correctly founded, this action could not be maintained, for it is settled, that since the act of 24th February, 1834, the remedy to recover a testamentary charge on land is exclusively in the Orphans’ Court. Downer v. Downer, 9 Watts, 60; Strickler v. Sheaffer, 6 Barr, 240.

As then the action has been brought in the proper tribunal having jurisdiction of the subject-matter, the question is presented, whether the irregularities which marked its inception so mar the proceedings as to bar. a recovery in it, against John Nicholas Miltenberger, on the ground of his personal liability? We are of opinion that they do not. The declaration sets out a cause of action against him, springing from his personal obligation, and though he is there named, as well as in the writ, as executor of the will of his father, this may be rejected as surplusage, for the rule is, that when an action is maintainable against an executor or administrator in his own right, naming him as executor or administrator is merely surplusage. It is the title to the cause of action set out, and not the addition, which is decisive of the question of the character in which he is to be regarded as party to the suit; Kline v. Guthart, 2 Penna. Rep. 490, and cases there cited; Bixler v. Kunkle, 17 Serg. & Rawle, 298; and the verdict will be moulded accordingly. It follows, that counting against Miltenberger in his double capacity of executor and devisee, furnishes no ground of fatal objection against the plaintiff’s right to recover in this action, which could be taken advantage of either before or after verdict; for though an irregular statement of the cause of action, it is but such a deviation from the proper form as may be excluded from contemplation, in estimating the propriety of the remedy adopted.

Nor is the exception to the introduction of the terr e-tenants, upon the record, better founded. It is true, they were improperly brought in on the return of the process, and, therefore, improperly' named in the narr.; but it is observable that no breach of duty or obligation is averred against him, nor are they called upon to pay any thing. They seemed to have been named merely ■pro forma, and the court below might very properly have entertained the objection raised by the counsel for the defendants below, against swearing the jury as to the terr e-tenants. •• But having done otherwise in the commencement of the trial, doubtless from misapprehension of the nature of the plaintiff’s claim, there was no impropriety, when the mistake was subsequently discovered, in directing the jury to discharge them by their verdict. They were summoned merely in respect of the land held by them, and it is settled by Jarrett v. Tomlinson, 3 Watts & Serg. 114, that if parties be improperly introduced as terre-tenants, the jury may be discharged as to them. There is no substantial difference between that course and discharging the terre-tenants by verdict of the jury. To be sure, Jarrett v. Tomlinson was a sci. fa. sur judgment, and this is an action ex contractu, arising from the legal obligation of the devisee. But the rule which requires a joint action founded in contract, to be sustained against all the defendants or none, has no application here, for the persons brought in as terre-tenants were really not parties, properly speaking, nor attempted to be charged as such. They were in fact foreign excrescences upon the proceeding, and might and ought to have been disregarded altogether, on the trial of the cause, by discharging the jury of them. I have already intimated that taking a verdict in their favour may be regarded as a mode, though not the least objectionable, of doing this. The case is a peculiar one, as it stood in the Common Pleas, and in sustaining the practice pursued there, we are anxious not to be understood as sanctioning a disregard of the settled forms of action, or the introduction of incongruities in the modes of pleading. Regarding Miltenberger as in truth the only party defendant in the action, and the declaration as being substantially against him alone, we think the suit may be sustained without any flagrant violation of settled rules.

Objection has been made here, to the form of the declaration, and it is certainly defective in not setting out a promise by Miltenberger to pay the plaintiff, in consideration of his acceptance of the devise, or at least expressly averring a legal obligation to do so. But this is a defect which is cured by the verdict, for, at most, it is but a defective statement of a good title to sue, and not the setting out of a bad one.

It remains to consider the bill of exception taken by the defendant below, to the rejection of the book of original entries offered by him, and the effect of the paper of the 22d December, 1842, upon his right to recover in this action. As to the first of these, we think the ruling of the court was right. The book was, certainly, not of itself evidence of money paid, and it lacked the .requisite identification to show it was the same book as that used on the occasion of the settlement between the parties.

As to the instrument of the 22dof December, I cannot perceive, from the paper book, it was brought to the notice of the court as interfering with the form of action adopted. No points appear to have been submitted to the court with a prayer for instruction upon the subject, nor does the president judge say any thing in his charge in relation to it. Under these circumstances, we might properly refuse to notice the objection raised here, as it would appear, for the first time. But as we entertain a decided opinion of the character of the paper, we have no objection to express it. It is true, the acceptance of an executor’s or devisee’s bond by a legatee, operates to extinguish the legacy, and thereby limits the party to his action on the bond; Stewart’s Appeal, 3 Watts & Serg. 476; Dewitt v. Eldred, 4 Watts and Serg. 422; but we do not regard the paper in question either in the nature of a bond or other distinct obligation to pay a sum certain to the legatee. It is rather the evidence of the settlement had between the parties to ascertain how much of the sum bequeathed to her remained due and payable. It was not intended to supersede the original liability, but simply to ascertain its extent. The fact that a scroll, in the form of a seal, was appended to it, cannot operate to change its character of a simple statement not designed to assume the form of positive obligation.

We have thus reviewed all the objections raised upon the record, and find none that would justify a reversal of the judgment.

Judgment affirmed.


text:
    Jenkins v. Jenkins.
    Terre-tenants, grantees of a devisee charged with legacies, must be made parties to a bill in the Orphans’ Court, praying a sale of the land to pay the legacies.
    And the Orphans’ Court has jurisdiction to settle accounts between the devisee and legatee before decreeing a sale for the unpaid legacy. And in this account die legatee is to be charged for the profits of land held by her and the devisee as tenants in common, of which she has retained exclusive possession.
    Appeal from the Orphans’ Court of Montgomery.

      Dec. 27, 28. Elizabeth Jenkins presented a petition to the court below, setting forth a devise to J. and L. Jenkins, the respondents, of certain land, subject to the payment of a sum of money among the children of the testator, of whom the complainant was one; that the devisees had entered, and the legacy remained unpaid; and prayed a decree compelling payment of the legacy and a sale of the land.
    The respondents set forth in their answer, that prior to the filing of the petition they had sold the lands to divers persons whose names were set forth-. They also denied that any thing was due to the complainant on a settlement of accounts between them. Among other reasons, they alleged that J. Jenkins and complainant were tenants in common of a piece of land which they had demised to a tenant at a certain rent. That complainant subsequently entered and evicted the tenant, and had remained in possession ever since, and enjoyed all the profits.
    The replication averred, by way of demurrer, that this was immaterial ; the legacy not being thereby discharged.
    The court thereupon overruled this demurrer; and the complainant having neglected to reply further, they dismissed the petition. At a subsequent term, the complainant asked leave to file a supplemental replication, admitting the exclusive retention of the premises, but denying that she had ever interfered with her co-tenant’s occupation or enjoyment of half of the profits; which the court refused. *

      Boyd, for complainants,
    insisted that the proposed set-off was inadmissible, since there was no certain rent agreed upon, and the remedy was account-render between the co-tenants. That if it was here admitted, the complainant would be deprived of her counter set-off for repairs, as was settled in Ulrich v. Berger, 4 Watts & Serg. 19.

      Hancock and Olay, contra.
    The jurisdiction is in chancery, and the owners of the land must be parties. There can also be no question that in this court all preliminary matters to determine the liability of the land must be decided. This cannot be done unless an account be taken, and into that every matter of charge and discharge can be brought; and if there be a balance either "Way, it can be compelled to be paid.

      Reply.

    The terre- tenants purchased with notice of the claim. [Rogers, J. — You seek to charge their lands. Did a court of Chancery ever make a decree against persons not parties ?]

      Jan. 3.
   Gibson, C. J.

This proceeding lies exclusively against the land; and it furnishes a decisive objection to a decree of sale in it, that the terre-tenants are not parties to it. But being in the nature of a bill in equity, they may yet be made so by serving them with notice to come in and defend for their particular interests. To do so, however, it is necessary to reverse the decree, and remit the record for adjudication de novo when they shall have been heard. For that purpose the pleadings ought to be amended so as to present the naked question whether Elizabeth Jenkins is liable at all, without regard to favour, to account to John S. Jenkins for profits either as a co-tenant or as his bailiff and receiver,

Decree reversed, and •procedendo awarded,


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    McCormick v. Joyce.
    The decree on the petition of a resigning guardian, of a balance being due by the minor ward, is not evidence to support an action by the guardian against the ward.
    In error from the Common Pleas of Bucks.

      Dee. 28. Assumpsit by McCormick, executor of Boyd, who was the guardian of Joyce, to recover the balance found due to the guardian, on settlement of his accounts in the Orphans’ Court.
    In 1837, Joyce being a minor above the age of fourteen, Boyd applied to the Orphans’ Court to have a settlement of his accounts, and be discharged from the guardianship. In this settlement, of which notice had been given to the ward, the credits claimed were for interest paid on a mortgage; repairs to buildings on the property of the ward; expenses and commissions. There were no claims for money advanced for maintenance or education. This account had been confirmed, and upon the trial of this action it was offered in evidence to show a balance due by the ward, but rejected by the court.

      W. A. Porter and Dubois, for plaintiff in error,
    contended that under the act of 1832, the court had the power to determine accounts between guardian and ward. That by that act all decrees of that court were like judgments of a court of record, which was held to be the case in executor’s accounts, and that, at all events, having been passed upon by the court, it was sufficiently prima facie evidence to go to a jury.
    Chapman, contra,
    contended there could be no decree binding the infant ward personally; Richards’s Case, 6 Serg. & Rawle, 462.

      Jan. 10.
   Bell, J.

The sole question raised upon this record, is whether the account settled by the plaintiff’s testator, as guardian of the defendant, during the minority of his ward, was competent evidence to establish, even prima facie, the alleged indebtedness of the ward to the guardian, for and on account of payments made by the latter beyond the trust-fund which came into his hands. It is supposed to be evidence for this purpose, because it received the sanction of the Orphans’ Court, by its order of confirmation of the 15th of February, 1837, which, as it is said, is in the nature of a decree binding all parties. But it was ssfr settled so long ago as the year 1821, in Richards’s Case, 6 Serg. & Rawle, 462, that the Orphans’ Court have no power to decree a balance against a ward in favour of his guardian, even after the former had attained full age. “ The guardian,” says the Chief Justice, in delivering the opinion of the court, “ is to account with the ward, and not the ward with the guardian. He is to account for the administration of the funds that come to his hands, and when he has done that, the court will discharge him; but that is the extent of the power which can be exercised for the protection only of the rights of the ward; the rights of the guardian are to be enforced by another tribunal,” — and he goes on to show, upon sufficient reasons, that if, in settling the account of disbursements made by the guardian, a balance should be ascertained against the ward, it will have no operation but to show that the guardian had discharged himself by an honest application of the fund. It was upon the authority of this case the court below ruled the present, and it is admitted the principle ascertained and settled by it, justified the decision, unless, indeed, the law has been changed in this particular by more recent statutes, regulating proceedings in the Orphans’ Court. It is supposed the tenth and eleventh sections of the act of 29th March, 1882, have had this effect. Both of them are, substantially, taken from the act of 30th March, 1821, which was enacted prior to the decision in Richards’s Case. But it may be, the account of the guardian, there, was settled before the passage of the act of 1821, and it might, therefore, have been thought inapplicable, though it would seem strange it was not adverted to by way of illustration, if the court supposed it worked an alteration in the before-existing rule. But waiving this, let us inquire whether the provisions of the act of 1882, just adverted to, have produced the result attributed to them by the plaintiff in error. The first-mentioned of these sections relates altogether to the triennial accounts to be settled by guardians in the office of the clerk of the Orphans’ Court, for the information of the court and the inspection of all parties concerned, but which conclude no one, and the final account to be settled on the arrival of the ward at full age, in the register’s office, upon which the decree of the Orphans’ Court, in the language of the act, “ shall, like other decrees of the court, be conclusive upon all parties, unless reversed, modified, or altered on appeal.” Whether a decree upon such a final account, ascertaining a balance to be due from the ward to the guardian, would conclude the ward as to such balance, unless modified on appeal, it is not necessary to determine, for the present litigation is not based on a final account of that nature. The settlement we have to deal with was made under and by virtue of the eleventh section of the act. This enacts that “the Orphans’ Court shall have power, upon the petition of any Such guardian, to discharge him from the duties of his appointment: Provided, That no guardian shall be discharged from his liability for the estate of his ward, until ¡ie shall have rendered to the court an account of the management of his trust; nor until the same shall have been* submitted to competent persons as auditors, and their report thereof be confirmed by the court, unless such account shall have been examined by the said court, and the appointment of auditors be found necessary, (meaning unnecessary;) nor until such guardian shall have surrendered the residue of the estate standing upon his account, settled and confirmed, as aforesaid, to a subsequent guardian of such ward, or to such other person as the court shall appoint to receive such estate: And provided further, That in any such case, it shall be the duty of the court to appoint some suitable person to appear and act for the ward, in respect to the settlement of such account.” Now, it is impossible to look at this section without perceiving that it was framed for the protection of the infant ward, and not to advance the interest of the withdrawing guardian, by enabling him to ascertain, by matter of record, a debt due to him from the minor. What is there in it to justify the ■conclusion that the legislature intended to change the law in instances like the present ? We see nothing. On the contrary, it is, I think, manifest from the whole tenor of this part of the enactment, the law-makers contemplated only accounts settled, to ascertain the due management of the trust-fund, and not a settlement made during the minority of the ward, which might, ultimately, fix him as a debtor. For this purpose, the statute directs the appointment of auditors to examine the account, or, in lieu thereof, an .examination by the court; it prohibits the discharge of the guardian until he shall have surrendered the residue of the estate stand'ing upon his account, settled and confirmed, and it provides for the appointment of some suitable person to act for the ward in respect to the settlement. It may be observed, too, in passing, that it lacks the emphatic concluding of the preceding section, respecting the conclusiveness of the decree. And there is reason for this. In a large majority of instances, the infant ward would be utterly incapable of investigating the account and verifying its correctness, and though the law provides for the appointment of a next friend to look to the interests of the ward, every one who has had any experience upon this subject will recognise' the difficulty of procuring an individual to undertake this office, on whose vigilance and faithfulness full reliance may be placed. In this case, even this imperfect precaution was neglected — as it never ought to be — and though it is said the court may have examined the account, we know that in fact this is seldom done, unless attention be specially called to it, for the reason that, for the most part, such an examination would be nugatory.

In conclusion, it may be observed the argument of the plaintiff in error, which seeks to establish the account as evidence of the ward’s indebtedness, proves too much. He claims for the proffered evidence but a prima facie effect, but if it be competent at all for the purpose for which it was here attempted to be used, it is conclusive upon the ward. The position is, that the character of record proof is conferred upon it by the decree of the Orphans’ Court. If so, then both by virtue of prior adjudications, and the provision of the act of 1832 itself, its correctness cannot be inquired into in this action, for the proceedings and decree of the Orphans’ Court, (‘in all matters within its jurisdiction, shall not be reversed or avoided collaterally in any other court.” But to this extreme the plaintiff himself refused to go, and yet his argument, carried out, pushes him upon it. To avoid such an objectionable conclusion, we must hold, as was held in Richards’s Case, that it is not within the jurisdiction of the Orphans’ Court to decree a sum of money to be due from the ward to his guardian. This will leave the parties to stand upon their common-law remedies in respect to such imputed debt. That the guardian may suffer some inconvenience from this, is perhaps true, but it is better so than that the ward should be fixed by the statement of the guardian, or even be subjected to the onus of disproving the items of charge set up by the guardian, perhaps involving complicated transactions of which thé ward has little or no knowledge.

Judgment affirmed.


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    Licey v. Licey.
    Cancellation of a bond, or delivery to the obligor with that intent, discharges the debt. Delivery of a bond to a stranger passes the right to the debt as a gift. — Per Gibson, C. J.

      Dec. 28. Licey and others, administrators of Fretz, brought this action of debt, and declared on a bond, the proferí of which was excused by averring possession unlawfully obtained by the obligor, who had torn off the seal.
    At the trial before Krause, P. J., the plaintiffs gave in evidence the bond, of which the signature and seal had been torn off. The defendant proved admissions by the obligee that she had given the bond to the obligor to do what he pleased with it.
    The court, on the authority of 2 Kent’s Com. 439, was of opinion an assignment, or transfer, actually executed, was essential, and directed a verdict for the plaintiff.

      Chapman, for plaintiff in error.
    Delivery and cancellation of a bond is the legal evidence of satisfaction of the debt: Whitehill v. Wilson, 3 Penna. Rep. 412. This is conclusively shown by the form of pleading, which requires proferí, unless matter of excuse be averred and proved.

      Ross and Dubois, contra.
    In the court below, we relied on the fraud of the defendant; but that being taken from the jury, the question is, can the judgment be sustained ? The cases of donationes causa mortis are inapplicable, and those only inter vivos are to be considered. There it is held that the gift between the parties must be complete, and not executory, as, where notes are given, they cannot be enforced: Fink v. Cox, 18 Johns. 145; Wright v. Wright, 1 Cow. 598. So, where releases not under seal are executed without consideration, they are invalid: Miller v. Hender, 5 Watts & Serg. 486. So of the assignment of a judgment by parol and without consideration: Kennedy v. Ware, 1 Barr, 445; Story’s Eq., § 1040 c. [Gibson, C. J. — There is a distinction between a gift and an assignment — the latter is only available in equity, and will only be enforced so far as there is a consideration.]

      Jan. 8.
   Gibson, C. J.

There is a ground on which, however, the cause was not ruled below, that is fatal to the judgment. If the defendant’s evidence be true, the bond in suit was given up by the obligee to be cancelled, and it was cancelled. Was not the debt, therefore, gone ? There is a plain and well-founded common-law distinction, in this particular, between things which lie in livery and things which lie in grant. As the former pass by force of the livery, of which the deed is only evidence, they cannot be revested by destroying the instrument, for a right can be dissolved only by the means which created it; but, as the latter exist only by force of the deed, they necessarily cease to exist when it no longer sustains them. So far was this carried in respect to things which depend on a deed, that an accidental destruction of the seal was held, in the earlier cases, to destroy the right, though a different rule prevails at present, by which thé donee is allowed to show the truth. But cancellation, eo animo, will now, as it ever has done, destroy any right which stands exclusively upon the instrument. Thus a lease for years might have been surrendered by cancellation before the statute of frauds, which now requires it to be done, at least, by a note in writing. But the very case before us is put as an instance of the principle in the last London edition of Sheppard’s Touchstone, TO. “And if a deed,” it is said — “nay, a bond — be delivered up to the party that is bound by it to be cancelled, and it is so, or if he that hath the deed doth, by agreement between him and the other, cancel the deed, by either of these means the deed (provided no estate passed by it) is become void.” Even if a bond thus delivered, but not cancelled, come again to the hands of the obligee, though it be valid at law, the obligee will be relieved in equity: Cross v. Powel, Cro. Eliz. 483; and see Vin. Abr. Faits, X, 2, 3, 4. These authorities are decisive of the principle.

But why might there not be a valid gift of a bond by delivery to a stranger, as in the case of any other chattel ? Such a gift would be inoperative at law, for, as a bond is not negotiable, the legal title could pass only by an observance of the formalities prescribed- by -the statute; but, on the principle of Cross v. Powel and the authorities already quoted, it would pass the equitable ownership. The remark of Chancellor Kent, on which the cause was ruled, that the gift of a chose in action requires an assign-* men't, or some equivalent instrument, and that the transfer must be actually executed, certainly does not relate to a gift perfected by delivery; else the case of a redelivered, but an uncancelled, bond, put by Mr. Preston in his emendation of the Touchstone, cannot be law. But Hooper v. Groodwin, 1 Swanst. 486, and Picot v. Sanderson, 1 Dev. 309, on which the chancellor relied, lead to a belief that he had no such case in view. The first was the case of an unexecuted design to transfer personal estate of which there had been no delivery; and the second was the case of an unexecuted order on the agent of the obligee to deliver up a bond to the obligor, on which it was expressly ruled that the gift would have been good if the order had been executed. On neither ground, then, could the judgment before us be sustained.

Judgment reversed, and venire de novo awarded.


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    Paff v. Slack.
    Under the acts of Assembly rendering owners of dogs liable for injuries committed, by them to sheep trespass lies.
    In error from the Common Pleas of Bucks.

      Dee. 29. The dogs of the defendant entered upon the plaintiff’s premises in the night-time and killed his sheep. The plaintiff brought his action before a justice for the injury. By an act of Assembly, applicable to that county, owners of dogs not keeping them housed or chained during the night are liable for the value of the sheep destroyed. The court (Krause, P. J.) left it to the jury to say whether the dogs had been housed or chained, and whether they killed the sheep. The error assigned was, that case being the remedy, the justice had.jurisdiction, and in the statement of the evidence by the court,

      Fox, for plaintiff in error,
    contended that case was the proper remedy.

      Chapman, contra,
    cited Dolph v. Ferris, 7 .Watts & Serg. 369; 1 Stra. 635.

      Jan. 8.

   Coulter, J.

:There is really but one question in this cause, and that is whether the justice had jurisdiction or not. It is very clear to my mind that the legislature intended, for the injury of which the plaintiff below complains, or the class of injuries to which it belongs, to give jurisdiction to a justice of the peace. The grievance was essentially domestic, and appurtenant to the immediate vicinage, and we may presume that it was designed to give those who suffered, a remedy as near at hand and convenient in its application as was afforded for other injuries of a like nature. By the act of 1825, it is provided that persons owning dogs in the county of Bucks, who do not shut them up at night, or keep them chained, shall be liable for whatever damages they commit in the destruction of sheep. Can such damages be recovered before a justice of the peace in trespass, or is the only remedy case, where the courts alone have jurisdiction? We think trespass will lie, and that, therefore, the justice had jurisdiction. The person who will not house or chain his dog, becomes consenting to the mischief wrhich they commit, and takes upon himself the risk of saying — Go at large; if you destroy sheep, I will pay for them. It is not like the doing some act, innocent in itself, from which the person could not reasonably infer that injury, or damages, would follow, and w'hich, when they did happen, were rather the result of accident or misadventure than design. The case of Dolph v. Ferris, 7 Watts & Serg. 369, will fully bear this case through. A bull went into the enclosure of a neighbour of his owner, and there gored a horse till he died. It was held that the action of trespass would lie, and that a justice had jurisdiction.

. There is not the least error in what the court said as to the facts of the case.

The destruction of the plaintiff’s sheep by the dogs of the defendant was fully made out; and the jury were satisfied that he had neither shut them up nor chained them. The court made such observations upon the testimony as they thought were warranted; but distinctly told them that they were the judges of the facts, and must determine for themselves.

Judgment affirmed.


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    Dickerson and Haven’s Appeal.
    The appearance and confession of judgment on a scire facias to revive by a terre-tenant, not named in the writ, is a waiver of any defect in the sheriff’s return of service'as to him.
    Trustee for separate use of feme covert, taking subject to the lien of a judgment, may continue the lien by voluntarily appearing to a scire facias to revive, and confessing judgment.
    Unless there appears to be a dispute as to the facts, the court are not bound to direct an issue to determine the right to the proceeds of a sheriff’s sale.
    From ike Common Pleas of Bucks.

      Dec. 30. On the 4th April, 1839, Conrad being seised of certain real estate, confessed a judgment to Preston to secure $1000. Conrad then conveyed the land, subject to the judgment, to E. Yerkes, who conveyed to S. Yerkes, who conveyed to Auble, who conveyed to Lewis, all of which conveyances were subject to the judgment. On the 27th March, 1844, Lewis conveyed to Huber, subject to the judgment, in trust for the separate use of Grebler, a feme covert, with povj^r to sell, with the consent of said Grebler and her husband, and reinvest the proceeds on the same trust.
    In March, 1844, a scire facias to revive was issued on this judgment against Conrad, Yerkes, Auble, Lewis, Mort, and Neals, alienees and terre-tenants, and in the same month the sheriff returned that he had served the parties, (excepting Lewis, wko was out of .the county, and also excepting Auble, for whom he left a copy on the premises with William Neals.)
    Upon the return of the writ, Huber confessed judgment on the scire facias, and in June following judgment by default was entered against the other defendants.
    In November, 1844, Huber conveyed to Dickerson, and he to Montgomery, against whom, whilst owner, Dickerson, the appellant, recovered a judgment, in 1845. The property passed from Montgomery to Haven, the appellant, in 1846, by divers mesne conveyances.
    In 1846 afieri facias issued on the judgment against the original parties, and Huber as trustee, and the property was sold. Dickerson then presented a petition to the court, setting forth the title and other facts appearing on the record, and praying for an issue or appointment of auditors, but for what purpose did not appear from the paper book.
    The court awarded the fund to the plaintiff in the execution, and this appeal was taken.
    The errors assigned were in refusing an issue to try the facts stated in the petition. The 2d, 3d, 4th, and 5th were, in substance, assignments of error in not awarding the money to Dickerson, on his judgment, or to Haven as owner. The sixth assigned error in the judgment confessed by Huber for want of power in the deed of trust so to do, and averred it to be nugatory and void.

      Dicherson, for appellants.
    The terre-tenant was not named in the writ, nor had he the power to confess the judgment. The issues are of right. [Gibson, C. J. — You must show disputed facts, and the issue must be confined to them.]

      Chapman, contra.
    Huber took, subject to the judgment. He had, therefore, power to continue the lien; the subsequent terretenants are immaterial in this question.

      Jan. 10.
   Bell, J.

The five latter exceptions taken by the appellant to the action of the court below, in awarding the money paid into court to Price, for whose use the original judgment against Conrad was prosecuted to execution, may be reduced to one, namely, that the scire facias which was issued on the 21st of March, 1844, to revive the lien of the judgment, was not served upon the proper parties. It appears by the report of the auditor, appointed by the Court of Common Pleas to collect and report the facts, that the land, which was the subject of the lien, passed, by suecessive conveyances, through many hands in a short period of time, and the plaintiff in the judgment made a very unnecessary effort to bring upon the record, as defendants in the scire facias, these successive owners, including Jefferson Lewis, who was in fact terretenant at the time of the impetration of the writ, but ceased to be so before the service thereof by the sheriff. The writ was not served upon him, and had he continued to be the owner of the lands up to that time, it might have been necessary to consider whether the sheriff’s return shows, with sufficient distinctness, that the alternative service of the process on the persons occupying the real estate bound by the judgment, had been made,- as prescribed by the act of 1798: Dohner’s Estate, 1 Barr, 104. But the necessity is superseded by the fact that, upon the return of the process, Henry Huber, sen., in whom the legal title to the land became vested before the service of the. scire facias, voluntarily appeared thereto, by his attorney in fact, and confessed judgment. Though not named in the writ, nor in the sheriff’s return, this cognovit had the effect of reviving the lien, as against subsequent encumbrancers; for an acknowledgment entered on the docket, without process, that the judgment is in full force, is sufficient to continue the lien: Boal’s Appeal, 2 Rawle, 37; and it has even been held that a judgment confessed in an amicable scire facias sur a former judgment is a valid lien against posterior judgment-creditors, though the original judgment did not legally exist in the court when the confession was made: Ramsey v. Linn, 2 Rawle, 231. Huber, with the consent of the plaintiff, had a right, as terre-tenant, to make himself a party to the proceeding by a voluntary appearance, and being the only party then, in interest, service upon any other party, except, perhaps, the defendant in the judgment, was needless. Lewis, by parting with his estate in the land, bound before service of the writ, was placed in the^ category of the preceding owners, who were not entitled to notice. These, in truth, ought not to have been brought in as parties. Naming them was an irregularity, yet not such an one as, I apprehend, could be taken advantage of by the real owner, even by pleading to the scire facias, and, certainly, not by after encumbrancers, on an application for the distribution of the fund raised by the sale of the land. It has long been settled that, though a judgment may be set aside or be reversed on error, for irregularity, it cannot be impeached collaterally, except upon proof of fraud: Heister v. Fortner, 2 Binn. 40; Lewis v. Smith, 2 Serg. & Rawle, 142; Anderson v. Neff, 11 Serg. & Rawle, 208; Stewart v. Stocker, 13 Serg. & Rawle, 204; and were this otherwise, it is certain that third persons, though they be judgment-creditors, cannot take advantage of such irregularities : Meason’s Estate, 4 Watts, 341; Hauers’s Appeal, 5 Watts & Serg. 473; Lowber & Wilmer’s Appeal, 8 Watts & Serg. 389; Dougherty’s Estate, 9 Watts & Serg. 197. It is not at all like the..case of Armstrong’s Appeal, 5 Watts & Serg. 356, for there no judgment of revival had been recovered against the terre-tenant, upon whom the writ had never been served, a fact of which, of course, the other creditors were permitted to avail themselves. Were it then even admitted that making the former owners parties, and signing judgment by default against them, is such an error as would have caused a reversal of the judgment, it does not lie in the mouth of the appellant, especially in this collateral proceeding, to impeach it on that account, and still less upon the ground that the writ was not made known to a former owner.

But it is further objected against the validity of the judgment of revival, that Huber, who was the trustee of Elizabeth Gebler, was not invested with power, by the instrument creating the trust, to confess such a judgment. There are two answers to this objection. The first is, that none but the cestui que trust could set it up for the protection of her estate; and the second, that Huber, as well as the other alienees of the land, took it by the express terms of the deeds made to them, subject to this judgment. The legal estate being in Huber, he was the proper party to the scire facias, and the beneficial interest being thus expressly encumbered, the cestui que trust could, with no show of reason, object to the action of the trustee: much less can a stranger who is in nowise injured by it.

The remaining exception is to the refusal of the court to direct an issue to try the facts stated in the petition of the appellant. Unquestionably, under the act of 1836, relating to executions, if any fact connected with the distribution of the proceeds of sheriff’s sales be disputed, it is the imperative duty of the court of Common Pleas, on the application of any person in writing having an interest, to direct an issue.to try the same: Bichel v. Rank, 5 Watts, 140; Trimble’s Appeal, 6 Watts, 133; Reigart’s Appeal, 7 Watts & Serg. 267. But then the specific facts should be set out, and it must appear that they may be made the subject of controversy, as facts in pais, proper to be passed upon by a jury. The act of Assembly was not formed to enable a litigious party to demand an issue, under all circumstances, and thus take his chance before a jury, when there is nothing in the case to call for its intervention. Now we look in vain to the petition or application of the appellant for the statement of any specific fact admitting of dispute, or which could possibly call for a jury to determine. Every thing stated, as constituting his case, rests either in record or documentary proof, which it is the province of the court to consider, and the employment of a jury would have been not only unnecessary but idle. On this ground, therefore, the court below was right in their refusal to direct an issue, though they may have given an erroneous reason for their determination, which, however, I am by no means disposed to concede.

But there is another decisive reason why this exception ought to be overruled, not appearing on the paper books, though shown by the record. The petition of the appellant prayed the court to direct an issue, or appoint auditors to investigate the facts, thus leaving it optional with the court to do either, and they chose to do the latter, to which no exception appears to have been taken. Surely, after this, it is not for, the party to complain of the court for adopting one of his suggestions, being the very thing he prayed for.

Decree affirmed.