author: RogeRS, J.

text:
    ALEXANDER OGLE against GEORGE GRAHAM.
    IN ERROR,
    Oae who executes a note as a surety, and giv^s it to the principal to be executed by him, and delivered to the payee, but who before so doing alters the amount mentioned in the note from a greater to a less sum, cannot take advantage of such at, teration upon the plea of non edfucfnm.

    Nor does it affect the validity of a note, that it was executed by ope of the payors in the presence of one witness, and by the other, in the presence of another; although it purports to be executed by both, in the presence of two subscribing witnesses.
    Error to Somerset county.

      George Graham, the defendant in error,
    brought this action of debt, upon a note under seal, against Adam Johnston and Alexander Ogle. The writ was served upon Ogle alone, who appeared and plead non est factum. Upon this issue the cause was tried.
    The evidence given made out this case: Johnston was about to borrow four hundred dollars from the plaintiff Graham, and Ogle agreed to be his security: a joint and several note for that amount was written and signed by Ogle in the presence of one subscribing ■witness, and given to Johnston, who afterwards, not in the presence of Ogle or Graham, struck out “four hundred dollars/’ and interlined in lieu thereof “three hundred and twenty-three dollars;” then executed it himself, in the presence of another subscribing witness, and delivered it to Graham, for a valuable consideration.

      The defendant’s counsel requested the Court to charge the jury,
    1. If they believe that the erasure and interlineation were made after the note was executed by Ogle, and without his knowledge or consent, there can be'no recovery against him.

      2. If the subscribing witnesses were not both present when each of the defendants executed the note, the plaintiff cannot recover.
    The Court ( Young, president,) charged the jury in substance, •that the alteration of the note, without the knowledge or consent of Ogle, rendered it void as to him; unless the jury believed that he had given authority to Johnston to alter it; in which case he was liable to pay it as altered.
    The second point the Court answered in the negative.
    The jury found a verdict for the plaintiff.

      J. B. Alexander for plaintiff in error.

    If, after the execution of a bond, an alteration be made, which is material, without the consent of all parties, it avoids it. Consent must be proved, not conjectured. Barrington v. The Bank of Washington, 14 Serg. & Rawle, 434.
    An alteration in the sum, although' for the benefit of the obligor .avoids the writing. Markham v. Gonaston, Cro. Eliz. 637. Lev. 35. Dyer, 361. Stephens v. Graham, 7 Serg. & Rawle, 508. The reason of this is, that the law presumes the alteration to be beneficial to him who makes it, although it may not appear to be so; such as an alteration of a note from one hundred, to ninety-nine dollars, for the purpose of giving jurisdiction to a justice of the peace, that the obligee might thereby hasten his judgment, which would clearly avoid the note.
    If the obligee procure persons to put their names as witnesses to a bond, it renders it void, without a new delivery. Marshall V. Gougler, 10 Serg. & Rawle, 164. Babb v. Clemson, Ibid. 434. Pigott’s case, 11 Coke, 27.

      JLustin for defendant in error.
    The note upon which this suit is brought, was not altered after its delivery, nor was it altered by the payee; which distinguishes it from those cited by the plaintiff in error. Nothing but a fraudulent alteration of a paper, by a party to it, will avoid it. An alteration by one who is not a party will not avoid it. Chit, on bills, 131 — 6—7. Hunt v. Adams, 6 Mass. 519. But in this case Johnston was authorized by Ogle to make the alteration: such is the legal inference from the nature of the obligation, and the acts of the payors. Smith v. Croker, 5 Mass. 538.
   The opinion of the Court was delivered by

RogeRS, J.

Giving the testimony of the defendant on the plea of non est factum, the whole force to which it is entitled, and it amounts to this: Alexander Ogle agreed to become the bail of Adam Johnston, for a sum not exceeding $400. -Ogle drew a note for that sum, with a blank for the time when it was to be made payable, and executed it in the presence of a witness. The note was put into the hands of Johnston, who, not having use for so much money, altered the sum of $400 to $323, and filled the blank with the words, “the fii’st of December next.” The note was also executed by him in the presence of a witness, but in the absence of Ogle, and then delivered to Graham, who advanced him the money. There is no pretenee to say that Graham made any alteration in the note, or that any alteration was made by any .other person, after the delivery. It is contended, that this is not the deed of Ogle. We are of opinion that it is his deed. The facts justify the jury in -believing, that Johnston was the agent of Ogle, and as such, authorized to make the alteration, and fill the blank. It became his deed from the time .of the delivery by his agent, and not when it was executed and handed over to Johnston. Graham is not chargeable with any thing improper in the transaction ; and if the alteration had been made to the prejudice of Ogle, which this manifestly was not, it would he unjust that Graham should be injured. The loss, if any, should rather fall on Ogle, who puts it in the power of Johnston to impose upon a person, who for aught that appears, was free from blame. This principle has already received the sanction of the Supreme Court in two adjudged cases. Sigfried v. Levan, 6 Serg. & Rawle, 308. Wiley et al. v. Moore et al. 17 Serg. & Rawle, 438.

The objection that the note was signed in the presence of but one of two subscribing witnesses, and not in the presence of each other, is destitute of any weight whatever.

Judgment affirmed»


source: Caselaw Access Project

license: Public Domain

text:
    MANUEL HOOVER against DAVID SHIELDS.
    The sale of part of mortgaged land by the sheriff, upon a judgment against one to whom the mortgagor had sold, divests the lien of the mortgage pro tanto: and a subsequent sale of such part by the sheriff upon the mortgage, vests no title in the purchaser.
    The circumstance that the proceeds of the sale upon the judgment, were received by the plaintiff in that judgment, does not alter the case: nor is it sufficient evidence to establish the fact, that such plaintiff purchased the land subject to the mortgage.
    Appeal by the plaintiff, from the Circuit Court of Washington county, held by Justice Huston.

    This was an action of ejectment for ipo acres of land on the Monongahela river, brought by Manuel Hoover against David Shields.

      Manuel Hoover, senior, the father of the plaintiff,
    under whom both parties claimed, was the owner of227 acres of land, of which the land in dispute was a part. On the 13th March, 1813, he sold and conveyed the same to Charles De Hass, for $7958, and at the same time took a mortgage to secure the payment of $3659, part of the purchase ’money. This mortgage was sued in 1820, and in 1822 a judgment was obtained thereon for $2020 43. Subsequently the plaintiff died, and Manuel Hoover, his executor, the present plaintiff, was subtituted: he procured a levari facias to issue; upon which the mortgaged premises were sold to him, for $400, and for which he obtained the sheriff’s deed 30th March, 1827. This was the plaintiff’s case.
    For the defendant it appeared-, that on the 30th December, 1815, Charles De Hass sold and conveyed in fee-simple, 142 acres of the land conveyed to him by Hoover, and which embraced the land in dispute, to John Neal for $4779. .In 1820 a judgment was obtained in favor of David Shields and others against John Neal, for $6190, upon which, in 1825, an alias fi. fa.issued, whieh was levied on the 142 acres, and which was condemned and sold, on a ven. expos, to David Shields the defendant, for $550: who obtained the sheriff’s deed therefor, on the 4th April, 1826. It also appeared that the proceeds of this sale were applied to David Shields’ judgment.
    The opinion of his Honor who tried the cause, was thq/'t the first sale, of the land, upon the Judgment of Shields and cithers, divested the lien of the mortgage; and that the second sale, upon the mortgage judgment, vested no title in the plainiiff.

      The jury fotmd accordingly for the defendant, upon which judgment was entered, and the plaintiff appealed.

      Kennedy for the appellant
    Contended, that this case differed materially from the ordinary case of a sale of mortgaged land upon a junior judgment;- in this, that in this case but a part of the mortgaged premises was sold. To decide,-that the lien of this mortgage was divested by a sale of a part of the mortgaged premises, would be to establish the princi-pie, that it is in the power of a mortgagor to fritter up the property mortgaged, and have the same sold by piece-meal, to the manifest prejudice of the mortgagee, and in violation of his contract.
    But it should have been submitted to the jury to determine, whether Shields did not purchase, subject to the mortgage; and the circumstance of his having received the proceeds of the first sale; upon his own judgment, is strong evidence of that fact.

      Walter Forward for the appellee.
    The right to divide property is incident to the title of a mortgagor ; but the assumption of the fact, that a division of property deteriorates its value, is gratuitous, and generally not realized by experience.
    Whether a purchaser at sheriff’s sale buys subject to a mortgage; is a matter of evidence: and it requires strong and unequivocal proof to establish it. Here there is no such proof; and if there is any inference at all, it is very weak.
   Judgment affirmed.


text:
    WILLIAM WILLIAMS against JOHN GLENN.
    IN ERROR.
    In an action of trespass quart chusum fregit, and carrying' away goods, a recovery of five dollars damages by the plaintiff will entitle him to recover full costs.
    Error to Crawford county.
    This was an action of trespass brought by John Glenn against William Williams. The plaintiff in his declaration set out his cause of action to be, “that the defendant broke and entered his close, took and carried away two hundred pounds of flour,” to his damage, &c.
    The defendant pleaded not guilty.
    The cause was referred to arbitrators, at the instance of the plaintiff, who reported in his favor, five dollars damages: for which judgment was entered. The plaintiff took out an execution for debt and costs.
    The defendant moved in the Court below, that the execution be set aside so far as respects the costs; which motion was refused.
    At a previous term, Green, for plaintiff in error, assigned this error: “That the judgment does not carry costs, therefore the execution for costs is erroneous.”
    No appearance for plaintiff in error.

      J. S. Riddle for defendant in error.
    The twenty-sixth section of the one hundred dollar law, does not require an affidavit to be filed, in actions of trespass. In this case a justice would have no jurisdiction, Masteller v. Trimbly, 6 Binn. 33. 1 Browne, 331. In these cqses the principle was
    established, that a justice has jurisdiction only in cases where the injury consequent upon the trespass is immediate to real or personal property. The act of the 22 and 23 Car. 2, which provides, that in the event of a recovery of a sum less than forty shillings, there shall be no more costs than damages, does not apply to trespass quare clausum fregit. 1 Salk. 208. Bull. nisi prius, 329. 3 Wils. 319.
   Judgment and execution affirmed.


author: Pbr curiam.

text:
    WILLIAM BLACK against JOHN MARVIN.
    IN ERROR.
    One partner is not a competent witness for his co-partner, in an action brought against him, which arose out of a partnership transaction: nor can he be made so by a release from liability to contribute.
    Writ of error to the Common Pleas of Crawford eounty.
    This was an action brought by Marvin against Black, for not delivering goods, which he had undertaken to carry.
    The defendant offered Gibson as a witness, who was objected to by the plaintiff, on the ground of his having been a partner of Black, in the transaction out of which this suit arose. Whereupon Black executed a release to Gibson, of which the following is an extract, “do hereby release, discharge, and acquit herefrom all liability, negligence in hauling butter, cheese, &c., from Cen-tre county: and from actions, causes of action, suits or demands,arising out of the-said transaction in way or manner whatever: hereby totally discharging the said Robert from all kind of responsibility in the same.”
    The Court (Shippen, President) rejected the witness.

      Selden for plaintiff in error.
    Whether the plaintiff recovered in this action against Black or not, he could- not sustain another action against Gibson. And as to Gibson's liability to Black, he was released from it.

      Wallace for defendant in error.
    There are two grounds why a partner is not a competent witness. One is, that the joint funds are diminished by a recovery.. And the-other that he is liable to contribution, in this case the first reason is conclusive, why the witness was properly rejected.
   Pbr curiam.

The interests of the witness and defendant were inseparable. They were partners as carriers, and the joint funds would be decreased by an execution against either: so that the witness had an interest paramount to the release; the words of which too, are scarcely comprehensive enough to include his responsibility even to the defendant.

Judgment affirmed,


author: ItooERs, J.

text:
    OLIVER COWLES against WICKLIFF COWLES.

      IN ERROR.

    The petition and affidavit of a party to a suit, to compel "the production of papers by the opposite party need only describe such papers with reasonable certainty.
    -On an application to compel the production of papers, very much is left to the sound discretion of the Court; and when it is exercised, it will require a strong case to induce tills Court to reverse their judgment.
    A judgment by default against a defendant, in an action on the case, for the non-production of papers, or for not assigning' sufficient reason why he does not produce them, is an interlocutory judgment: and the sum due may be liquidated by inquisition.
    Whit of error to the 'Common Pleas of Crawford eounty.
    This was an action on the case, brought by Michael Cowles, against Oliver -Cowles. The plaintiff filed a declaration containing four counts, 1st. For money had and received. 2. For money lent. 3. For work and labour done. 4. Quantum, me-ruit for work, &c.
    The defendant pleaded non assumpsit infra sex annos, payment and.set off with leave, &c.
    On the 14th February, 1828, -the plaintiff presented and filed the following .petition:
    “Plaintiff saith that the defendant being indebted to him, gave him two promissory notes, dated in the year 1819, he thinks both •dated 19th Sept. 1S19 ; one for @431 .or thereabouts, payable in one year; the other for @772 or @775 or thereabouts, payable in three years.. The notes, with other papers of the plaintiff, were left in a tin trunk belonging to him, at the house of the defendant, and in his possession: and upon application to the defendant since, lie has refused to give them up.”
    Whereupon the Court made an order upon the defendant, under the act of 27th February, 1798, to produce said notes, &c.
    On the 15th April, 1828, the defendant made and filed the following affidavit:
    “Crawford county, ss.
    “ Oliver Cowles, being duly sworn,.doth: depose and say, that it is certainly out of his power to produce the notes called for in the within affidavit and notice; and that if such notes ever did exist, they have long since been fully and entirely satisfied. And that at the time the notice ‘was served on the defendant, nor at any time since, was it in his power to produce sa’id notes.”
    The plaintiff having objected to this affidavit, on the ground of its being evasive and insufficient, the defendant appeared in Court, and underwent the following examination.

      Oliver Cowles being sworn to make true answers, says — he never saw the notes described in the notice, to his knowledge. I have no knowledge or recollection of ever having given such notes. There was a tin trunk left in my possession by TV. Cowles; it was locked, there was a lock on it. I never examined it to see if it was locked, I never examined the contents of the trunk. I do not know what became of the trunk. It is not in my house to my knowledge. I have not seen it since before the suit was brought. W. Cowles had lived at my house and was gone about a year before. It was a small trunk, 9 by 6 inches — he has other property there now. I have looked for this little box where it used to stand. I have no knowledge what has become of it.

      Cross examined by plaintiff:

    I did give TV. Cowles, two notes a number of years ago. I can’t tell if they were given in 1819 ; one was not for @431. I can’t tell the exact sum, but it was for less than @400, it was not near @400. I think it was upwards of @300. I can’t tell what the other note was. Quest. Was it for 5, 6 or 700 dollars ? dins. I can’t tell certainly if it was for upwards of @500 — I guess it was — It was not for upwards of @600. TV. Cowles did tell me that these notes were in that trunk, and requested me to give him up that trunk. I did not refuse to deliver it. I told him he might have it; that was in October or September, 1826, I have not seen it to my recollection for some time previous to that. I can’t say when I did see it. Tt commonly stood on the bureau, or back of it, when he left it there. I did not remove the trunk from that place, nor tell any other person to remove it. I did not know any other person removed it. I believe he kept his papers in that box. When I told him he might have it, I did not know but what it was then on the bureau. No person had told me TV. Cowles was coming for his trunk, that I recollect of, a Mr. Reynolds did not tell’me so. I have never told TV. Coioles, to my knowledge, that he should never take those notes away from my house. I don’t know or recollect that I had any conversation with TV. Cowles about taking them away. I believed I wished him not to take those notes away ; and I believe I expressed that wish to him. Did you not tell W. Cowles, when he came to the field to ask for the trunk, that it was where he could not get it? I did not — The trunk had been on the bureau for a year or two. The latter part of the harvest, before W. C. talked with me about settling ; and we had a settlement by agreement. The trunk was in sight at the time of that conversation. I think he talked of taking away the trank at that time. I do not recollect that I expressed a wish he should not take the trunk away. I know the family did. I guess its likely I did. I told him if he would come down in six weeks I would do just as I had agreed with him. I did not tell him I would settle with him and secure him. I told, him to come to Meadville and finish the settlement. Did you then go from the harvest field to the house together? No, I went in when he was there. He took the notes out of the trunk, and said, if you wish to be an honest man you can. I told him I’d just do as I had agreed. I believe I did put the notes in there again. I guess I did not tell my little boy to take the trunk, and put it on the bureau. I can’t tell how long it remained on the bureau. State the amount of these notes. I can’t tell more than I have. I can’t tell their date, nor the year. I can’t tell the exact amount, I guess one was for about $>500 and the other $325. I can’t speak with certainty as to the amount. How can you say you never saw the notes described in this notice? Because I don’t think they were so large. I do not know the date was 1819 ; the notes were on interest. I can’t tell certainly if they were payable on demand. I guess one was payable in one year. I can’t tell if the whole was payable in three years, or two years. The smaller note was payable in one year. The other w'as on longer credit. My family consisted, when the trunk was missing, of a wife and 5 sons: but four at home. Mr. Bay’s daughter was at my house part of the time, between August and October, she was living there when Wickliff came down.
    The Court, (SMppen, president,) gave judgment by default for the plaintiff, and directed an inquest to be taken at the next term, to ascertain for what sum final judgment should be given.
    At the next term the cause was tried before a jury, and a verdict was rendered for the plaintiff for $1958 70, the amount of two notes, and $360 for six years’ services: amounting to $2318 70.
    In this Court these errors were assigned.
    1. The facts disclosed in the petition of the plaintiff below are not sufficient to warrant the Court to render a judgment by default against the defendant.
    2. The Court erred in rendering a judgment by default, on all the facts disclosed.

      Derickson and S. B. Foster for plaintiff in error.
    'I'o authorize a judgment by default, under the act of 27th February, 1798, three things are necessary. 1, The paper must be in the'possesion of the opposite party. 2, Material to the issue.
    3.Described with certainty. These things must appear by the affidavit of the plaintiff; and they must appear with certainty, so as to enable the prothonotary to enter the judgment for the proper amount. Rose v. King, 5 Serg. & Rawlc, 244. It does not appear by the affidavit of the plaintiff in this case, that the defendant had the notes in his possession; the defendant swears positively that he had them not. There could be no judgment entered by the prothonotarjr upon the plaintiff’s affidavit, because of its uncertainty.

      J. J. Pearson and Wallace for defendant in error.
    The papers are described with sufficient certainty to apprise the defendant of what was called for; no prudent man could describe them with more certainty. The judgment by default did the defendant no harm, because the amount of the notes were made certain by evidence before the inquest. The answer of the defendant is not sufficient, because it does not satisfy the Court why he does not produce the papers; in an investigation about the existance of papers, much must be left to the discretion of the Court. Wright v. Crane, 13 Serg. & Rawlt, 447
   The opinion of the Court was delivered by

ItooERs, J.

There is nothing in the plaintiff’s exceptions, which has not been already decided in Wright v. Crane, 13 Serg. & Rawle, 450. The act of the 27th February, 1798, under which this proceeding is had., does not require that the affidavit should be positive. It would weaken the act very much, say.s Chief Justice Tilghman, to decide, that positive proof was necessary, of the existence of ihe papers called for, or of their being in the possession of the adverse .party. The affidavit on which the Court made the order, is as positive as the nature of the case would admit: as mueb so, as a regard to truth would allow. And this is all that can be reasonably required. The deponent avers the existence of two notes, given by the defendant to him, dated in the year 1819; and thinks that both were dated the 19th September, 1819. That one was for the sum of ®431, or thereabouts, payable in one year; the other, tor $772 or $775, or thereabouts, payable in three years. lie also distinctly avers, that these papers were left by him in a tin trunk, at the house of the defendant, and in his possession; that he had applied to the defendant for their redelivery, and that he had refused to give them up. From this description, the defendant could be at no loss to know what papers the plaintiff required him to produce. Nor is it wonderful, that the plaintiff should be unable to fix the precise date, or ascertain the exact amount; this is an occurrence that may well happen, and frequently does, particularly to persons extensively engaged in business, or where their recollection may have failed from lapse of time. Under these circumstances, it, was incumbent, os the defendant to deny the plaintiff’s allegation altogether, or to admit they were once in his possession, and to assign some, reason why it was not in his power to produce them. If he had denied the existence of the notes, or had said that they were never in his possession, that he had re-delivered them to the plaintiff, or that they had been destroyed by accident, if these allegations had been made, and had been believed, it would have accounted satisfactorily for their non-production.

The Court of Common Pleas, who were'the judges of the whole case, were not satisfied with the answer) nor can we say there was any thing wrong in this. “ It would be perilous for us to reverse, their decision, on a mere difference of opinion, in regard to the weight Of testimony; particularly when.it is recollected that they had the advantage of a viva voce examination of the defendant. But here there is something more than a presumption that the notes were once in the possession of the defendant. It is certain they were atone time in his custody. ’ Why then does he not produce them, or givfe some reason why, in the language of the act, it is not in his power so to do. This is a proceeding in the nature of a bill of discovery, and as such, should be .viewed with a favorable eye. The object is to wrest from the'defendant papers, fraudulently withheld from the rightful owner. The Court must decide, not from detached sentences, but from the whole examination. From this the inference is strong, that the defendant could have given reasons, if it had suited his purposes, why it was not in his power to pro_duce the notes. If the defendant has been injured, it is his own fault; as it is manifest, there has been a want of candour and fair dealing on his par.t. The act imposes no hardships.

Besides, we do not se^ that the defendant has been injured; as the plaintiff was bound, notwithstanding the judgment by default, to prove the amount of the notes. This was an action on the ease, in which the declaration contained the money counts only: the judgment fixed nothing, ascertained no sum. It was therefore necessary for the plaintiff to give evidence of the amount of the notes. In this, the uncertainty is said to consist; for the complaint is, that the affidavit ascertains no certain sum, for which judgment by default can be given. The judgment being interlocutory, a defect in that particular, can be remedied by evidence at the trial. And this was done. here.

. Judgment affirmed.


text:
    THOMAS McCLEARY against JONATHAN ALLEN.
    IN ERROR.
    in an action brought by a landlord against his tenant, to recover the rent, it is not competent for the tenant to give in evidence,*that immediately after the term had ended, for which the rent 'Was claimed,, the lSndlord was ejected from the land, by an execution which' issifed.ltpon a judgment in an action of ejectment, which had been brought against the landlord and the tenant during tlie pendency of the lease. • > ,
    Error to the common pleas of Mercer county.
    This was an action of covenant, brought by Jonathan Allen against Thomas McCleary, upon a lease, dated 26th Feb. 1823, to recover three years’ rent of a tract of land: from 1st April, 1823, till 1st April, 1826. É

    The defendant offered in evidence the record of an action of ejectment brought by Mathias Flock against Jonathan Jlllcn and Thomas McCleary to May Term, 1S24, to recover the land, for which the rent sued for was claimed: by which it appeared that the cause was tried on the 22d August, 1826, and a verdict and judgment were rendered for the plaintiff: upon which an hab.fas. poss. issued 7th December, 1827, which the sheriff returned, “turn" ed defendants out of possession; plaintiff had notice, but did not attend to receive possession.” The defendant also offered to accompany this offer with evidence, that a notice was served upon him by Flock, that he was the owner of the land.
    This evidence was objected to by the plaintiff.
    Sippen, President. — As the eviction by Flock, was not until after the lease, upon which suit is brought, had expired; and Mc-Cleary the tenant enjoyed all the benefits of the lease; the evidence offered, if true, would not be either a legal or equitable de-fence against the payment of the rent. It is therefore rejected. The rejection of this evidence was here assigned as error. ■ • •

      Selden and S. B. Foster for plaintiff in error.
    Cited Banders ■v. Fletcher, 11 Serg. & Rawle, 419.

      Banks for defendant in error.
    Cited 1 Saun. 204 in note. Hobart’s Jtep. 190, in note to Bond v. Andrews L. Raym. 370. Cowp. Rep 242. 1 Espinass. N. P. 266. 1 Salk. 277.
   Judgment, affirmed.


author: Smith, J.

text:
    JOHN SOUTHERLAND against JOHN PURRY.
    IN ERROR.
    S. sold to P. a tract of land, by articles of agreement, by the terms of which, a part of the purchase-money was to be paid in hand, and the balance “as soon as S. should deliver P. a deed, or give him good security for the delivery of such deed.” Twenty-two years after the date of the agreement, P. obtained a patent for the land from the Commonwealth. Held: That S. could not sustain an action of ejectment, to compel the payment of the balance of the purchase-money, without first having tendered a de ed to P.
    Error to Mercer county.
    This was an action of ejectment, in which the plaintiff in error was the plaintiff below: brought to compel the payment of the balance of purchase-money of'a tract of land.
    The following agreement between the parties was given in evidence:
    “Article of agreement made this 14th day of June, 1799, between John Southerland, of the county of Westmoreland and slate of Pennsylvania, of one part, and John Purry, of same county and state, of the other part, viz. that John Southerland sells a certain tract of land, of two hundred acres, to John Pur-ry, lying on the waters of Wolf creek, the 3d district adjoining lands, &c.; and said Southerland is to make a good clear deed, without incumberance, as soon as the office is open for said land; and said Purry is to pay to the said Southerland fifty-eight pounds fifteen shillings of the purchase money, in hand, and said Southerland sells to said Purry the aforesaid lands, at two dollars per acre, and said Purry is to pay the balance of the remainder purchase-money, as soon as said Southerland delivers him the deed; or gives him security ffir the delivery of said deed; then said Purry is to pay, on or before the opening of said land-office; and the true performance parties bind themselves in the sum of three hundred pounds.”
    In 1821, Purry obtained a patent for the land himself.
    The defendant requested the Court to instruct the jury, that the plaintiff could not recover; not having tendered a deed to the defendant before suit brought.

      Shippen, President. — I assent to the argument of plaintiff’s counsel, who urged that, by. thisvarticle,.the money was not payable till the deed was made; that a presumption of payment after the lapse of twenty years, does not apply to this case; nor does the act of limitation apply. According to the terms of their article, and the testimony in the cause, Southerland was bound to execute his deed to defendant before he could bring suit — but he neglected from 1801 to 1821 to take out a patent, and then in 1821 Purry takes out the patent himself. After so unreasonable a delay, Purry was right in doing so: still Southerland should have tendered to Pitrry his deed of confirmation or release, (signed also* by his wife, if he had one,) before he brought suit; and when he has done so, he may yet recover the balance due, without; he ought not to recover in this attempt to take the land.
    An exception was taken to the opinion of the Court.

      ■Ayres and S. B. Foster for plaintiff in error.
    < The defendant had a perfect title to the land, and was therefore bound to pay the purchase-money. He had the equitable title by the agreement with the plaintiff, and he had. the legal title by his-patent from the Commonwealth. No deed from the plaintiff was ¡necessary-

      J- J. Pearson and Banks for defendant in error.
    The plaintiff had not complied with the covenants in the agreement, which, on his part, were to be performed; he could not, therefore support an action of debt or covenant. It is as. certain that he cannot obtain the same objects by any other form of action. A deed from him is essential to his right of action: he has a wife, whose right of dower is not conveyed.
    The plaintiff having parted with his equitj, by the agreement, and' not having obtained any legal estate, he cannot, therefore, support an ejectment.
   The opinion of the Court was delivered by

Smith, J.

The errors assigned, are to the charge of the Court:—

1. That the Court erred in instructing the jury, that Souther-land was bound to execute a deed and tender it to Purry, before he eould bring suit.

We cannot see error in this instruction of the Court. South-erland settled on the land in controversjr in 1796, and sold it to Purry on the 14th of June, 1799, bjr an article of agreement, for two dollars per acre ; — fifty eight pounds, fifteen shillings, were to be paid in hand, and the residue of the purchase- money as soon as Southerland would deliver Purry a deed, or give him good security for the delivery of such deed. It would appear, that when the ejectment was instituted, it was intended to recover on, the original settlement, but when the defendant produced his ar-■tide of agreement, the plaintiff abandoned his original ground, and considered his suit an equitable ejectment, brought to compel the payment of the purchase money ; but the Court decided, that •the plaintiff could not recover unless he made a deed to the defendant. In this the Court were certainly right, for all this was .required to be done by the plaintiff by his article of agreement, •and although there was an alternative, to deliver a deed to Purry, .or give him security for such delivery, it is not pretended that the pláintiff performed either: he couid not recover, unless he had performed the one or the other of the alternatives. There was then no error in this instruction te the jury-

2. It is said the Court erred, in charging the jury, that after Purry had taken out the title himself from the land office, South- ■ erland was bound to tender a.deed of confirmation, or a release before he could bring this suit.

We do not see any error in this instruction. The bringing of •this very ejectment shows that the plaintiff lays claim to the land ; and does so although the defendant has the legal title for it, and why does not the plaintiff release this claim, before he calls on the defendant, and claims from him the purchase money ; by his article he has undertaken to make a good and clear deed without incumbrance; but this he has not done, and therefore cannot sustain this suit. It is the common case of a man, who buys a tract of land, but who is not to pay until a deed is made to him for it, clear of all incumbrances. If the vendor does not do this, and the vendee discharges or pays off the incumbrances, still there is, in law and justice, a conveyance due, by their contract from the vendor to the vendee, and until this is made to him by the vendor, the vendee is not bound to pay the purchase-money: for such is the very contract of the parties ; and as made by them, so it must be performed.

Besides, it would appear, the first payment was actually made to Southerland, at the. date of the article: no more was to be paid until a clear deed was made for the land, or security given for a deed of this description ; this I stated before was not .done, ■but a considerable sum was paid, by the defendant, (if not directly to the plaintiff, to the Commonwealth,) to obtain a patent for the land. The law then, as laid down by the Court of Common Pleas, was, in our opinion correct-.; and there is no error in this ¡part of their charge.

-Judgment affirmed.


text:
    ROBERT BARCLAY and AMY his wife against JONATHAN THOMPSON.
    -IN ERROR.
    An action of slander will not lie in Pennsylvania for words spoken in another slate, when the offence charged by those words, is not indictable in that state, although it may be indictable here.
    Error to the Common Pleas of Warren county.
    This was an action of slander, brought by Barclay and wife against Thompson. The declaration charged the defendant with having said of the plaintiff’s wife, that she had been guilty of adultery.
    The evidence established the fact, that the words were spoken in the state of New York; and the place where the defendant alleged the offence to have been committed, was also in New York.

      Shippen, President — -Instructed the jury, that the plaintiff could not support his action ; and this, on the ground that the crime of adultery was not an indictable offence in the state of New York.
    The jury found a verdict accordingly.

      Galbreath and Barritt for plaintiff in error
    Cited Vananhin v. Westfall, 14 tfohns. Rep. 233. 4 Cowen, 508. Church v. Hubbard, 2 Cranch, 187.
    The place where the words were spoken can only be taken advantage of by special plea. Collett v. L’d. Keith. 2 East. 273. Mostyn v. Farrigas, Cowper, 174. Stark, Ev. 567. A foreign law must be pleaded and proved.

      Pearson for defendant in error,
    whom the Court declined to hear.
   Judgment affirmed.


author: Ro&ehs, J.

text:
    JAMES COTTON against HARM JAN HUIDEKOPER.
    IN ERROR.
    The words of a witness, contained in a deposition, must be construed according to the general understanding: they must not be used in their, grammatical sense, but in common parlance: thus, *‘as deponent understood by said ll.” means “as deponent understood said H. to say,”

    It is not competent in an action for malicious prosecution, for the defendant to give in evidence the substance of what a number of witnesses swore before the magistrate who took the information, in order to establish probable cause.
    If two or more join in a prosecution, without reasonable or probable cause, one and all are answerable in damages. It is joint and several.
    One who participates voluntarily in such a prosecution, and it is carried on with his consent, countenance - and approbation, is a partner in the transaction, and liable for the consequences.
    A non-joinder of a participator, can only be taken advantage of, if at all, by plea in abatement.
    Writ of error to the Court of Common Pleas of Craivford county.
    This was an action on the case, for a malicious prosecution, brought by James Cotton against Harm Jan Huidekoper. Plea, not guilty.
    The plaintiff had been indicted in the Quarter Sessions of Warren county, for shooting at the defendant, with intent to kill him.
    Many bills of exception were taken during the progress of the trial to the opinion of the Court, admitting and rejecting evidence; it is only necessary to mention those which gave rise to serious questions of law.
    After the plaintiff had given in evidence a certified copy of the record of the indictment, and the finding ‘Hgnorahius” by the grand jury, he offered the deposition of Daniel Horn; to the admission of a part- of which, to wit, these words, “As H. J. Huide-koper was on his way to Warren as deponent understood by said Huidekoper, to prosecute said James Cotton, for shooting said Huidekoper’’s horse, said Huidekoper told deponent, &c.-” defendant objected. The objection was sustained, which formed the first bill of exception.
    The defendant having given in evidence, by the testimony of John B. Wallace, Esq. as follows, “On a hearing before the judge, after Cotton was brought, there were divers witnesses examined, I cannot undertake to state the substance of what each witness swore, but I recollect the substance of the testimony — there was no contradiction. Thomas Irwin, James Irwin, Esq. Joseph Wright, R. J. Coles, and others were sworn for the Commonwealth. I had taken down notes of the testimony as I do here. I gave those notes to Mr. Defriekson as prosecuting attorney,” And baying given in evidence, by the testimony of D. Derrick-son,. Esq. as follows, “I have a faint recollection of having had those notes — I 'know I have not got them — Mr. Wallace .has called and asked for them several times.” The defendant then offered to prove by the testimony-of the same witness, (Mr. Wallace,) the substance of the whole testimony before Judge Hackney. This the plaintiff objected to ; but the Court over-ruled the Objection and sealed a bill of exception.
    The following deposition was also read in evidence:
    “Personally appeared before me, Jesse Moore, Esq. president judge of the sixth judicial district, in the commonwealth of Pennsylvania, Harm Jan Huidekoper, who being duly sworn, depo-seth and saith, that on Saturday, the sixth day of September, 1823, this deponent was travelling alone on horse-back, from Sugar Grove Village, towards Meadville, along the state road, and that on reaching a bridge, situate about two miles south of Little Bro-kenstraw creek, it being then about half after ten o’clock in the forenoon, this deponent was fired ,at with a rifle ¡gun, by some person or persons concealed in the woods, on the left side of the road; by which shot, the horse of this deponent was severely wounded in his left thigh. This deponent further says, that he did not see the person or persons who fired at him, but that it is his firm belief, that the said shot was fired at him wilfully and maliciously, with the intent to kill him this deponent.”
    The plaintiff requested the Court to charge the jury on the following points:
    ■ 1. The Court are requested to charge the jury, that if they find, that the defendant made the affidavit given in evidence, without any legal compulsion, with a view to the prosecution of the,defendant, whether at the request of any other person or not, and gave that affidavit, to any third person, to make such use of it as he saw proper, he thereby constituted him his agent for that purpose, and he is responsible for all the consequences, whether acting within or without the express authority given him,.
    2. That if the defendant participated voluntarily in the prosecution of the plaintiff, and it was carried on with his consent, countenance and approbation, he is a partner in the transaction, and liable for the consequences, whether there were others who participated in it or not.
    3. Whether the defendant participated in the prosecution of the plaintiff or not, is a fact exclusively for the decision of the jury.
    4. The defendant’s making the oath as given in evidence, (no matter as respects the right of action, whether at the request and direction of another person or not,) his disclosing the name of the plaintiff, before those who attended to the transaction, proposed or undertook it, and bis going voluntarily before the grand jury, are circumstances for the consideration of the jury, and from which they may infer his participation and privity, so as to render him liable.
    To which the Court answered: Whether the defendant participated in the prosecution of the plaintiff or not, is a fact exclusively for the decision of the jury: and this alone is a full answer to all these points.
    The charge was excepted to.
    Errors assigned:
    1. The Court erred in over-ruling the objection to the evidence; as contained in the first and second bills of exception.
    2. The Court did not answer the plaintiff’s points, as they were requested to do.

      Galbreath and Barritt for plaintiff in error.
    The deposition offered in evidence should have been received; for the witness expressed the idea, in language well understood in the country, “that he understood from Huidekoper” that he was going to Warren to prosecute, &c. It will not do to construe depositions according to grammatical rules, but according to the sense of expressions as generally understood. Sampson v. Sampson, 4 Serg. & Rawle, 329.
    The Court permitted a witness to testify what was the substance of the evidence of six or ten witnesses, given before a magistrate, which was clearly erroneous. 1. Because the witness did not pretend to know what each witness swure. 2. Because it was not the best evidence in the power of the party. The .witnesses, the substance of whose testimony was given, all resided within the jurisdiction of the Court, and might have been produced to testify again what they had said before.

      John Banks and Wallace for defendant in error.
    The defendant does not say that he understood “from Huide-koper. This deposition was taken without any cross examination of the defendant: and should therefore be construed, at least according to the rules of good English.
    Of.what importance could it be, to give evidence of what each witness swore, if the substance of what they all swore was given? This the witness would have undertaken to testify to: and it established beyond all controversy probable cause; which defeated, and always must defeat the plaintiff’s action.
   The opinion of the Court was delivered by

Ro&ehs, J.

This is an action on the case, for a malicious prosecution, in indicting the plaintiff without reasonable or probable cause, for an assault, with an intent to kill and murder. The in-' dictment against Cotton, was returned by the grand jury, ignoramus, but as no prosecutor was indorsed, it became necessary to prove aliunde,, that the defendant, Huide7coper, was the prosecutor. For this, and other purposes, depositions were taken on notice, for the exclusion of parts of which, errors are assigned. And first, as to the part of the deposition of David Horn, which states, “that as Harm Jan Huidekoper was on his way to Warren, as deponent understood, by the said Huidekoper, to prosecute said Cotton, for shooting said Huidekoper, said Huidekoper told deponent, &c.

This is a common mode of expression; and is, in my opinion,, equivalent to saying, “that Huidekoper had told himhe was on his way to Warren, to prosecute Cotton. I agree with Justice Duncan, that if depositions taken in the country, were strictly scanned, most of them must be rejected. The words of the witness were not used in their grammatical sense, but in common parlance, and must be construed according to the general understanding, and particularly in the case of depositions taken in the country, before persons unskilled, inapt, and without the aid of counsel. It is common, when it is desired to carry the idea of what you have heard others say, to make use of these expressions: I understood him to say: or, I understood from him, or I understood of him, or as in this case — that as Harm Jan Huidekoper was on his way to Warren, as deponent understood, by the said Huide-koper, to prosecute said Cotton, for shooting said Huidekoper, &c. It is not open to the objection, that this understanding of his, may have been derived from the information of others. The witness says, he understood this by the said Huidekoper; so that all the knowledge he had of the transaction, and of Huidekoper’s views in going to Warren, was attained from the defendant himself. It is said the expressions are equivocal; if so, they might have been explained, as the defendant had the opportunity to cross-examine, of which, if he did not choose to avail himself, it was his fault. At any rate, we think the evidence should have been submitted to the jury, and in this there would have been no danger, under proper directions from the Court, as to what attention should be given to the testimony, provided the jdry believed that the witness did not hear Huidekoper say, he was on his way to Warren to prosecute Cotton.

The rejection of Scott’s deposition, comes within the same principle.

Next we will consider the objection to the testimony of Messrs. Blossom and Wallace. The furthest the decisions have heretofore gone, is to admit a witness to testify to the substance of what another has sworn on a former trial. It has not been supposed to extend so far as .to ;permit proof of the substance of the whole testimony. And ¡even in such cases, the testimony has been received only where‘the witness is dead, or beyond the reach of process. It appears singular to me that this inferior and secondary proof should have been resorted to, when the witnesses were alive, and subject to the jurisdiction of the Court. The effect is, to deprive the plaintiff of the benefit of a cross-examination, to which we think, he is entitled. There was error, then, in allowing the witness to testify to the substance of the evidence given before Judge Hackney. To extend the rule further than has been already done, would .be attended with danger. As a general rule, the best evidence must be given, although, at the same time, we do not now say, that none but the witnesses who testified before Judge Hackney can '¡be examined; yet we are clearly of the opinion, that the substance of what each witness swore, must be given.

The plaintiff further alleges there was error in not responding distinctly and fully to the first, second, and fourth points submitted to the Court.

I shall confine my attention to the second point, which is most ■material, and in which, we rthink, the Court erred. That if the defendant participated voluntarily in the prosecution of the plaintiff, and i.t was carried on with his counsel, countenance and approbation, he is a partner in the transaction, and liable for the consequences, whether there were others who participated in it or not. This was an important question for the plaintiff, to which he was entitled to an affirmative answer. If he did participate in the prosecution, it is no excuse for him, under the circumstances of this case, to say, that others were equally engaged in conducting the prosecution. If two or more join in a prosecution, without reasonable or probable cause, one and rail are answerable in damages. It is joint and several. Besides, ¡even if it were otherwise, the tínly method by which the defendant could take advantage of the mis-joinder of the others, would be by plea in abatement, in which he would give the plaintiff a better writ. It cannot be permitted, that a wealthy man may indulge hie malice by using the name of others, and in this way escape the consequences. If the defendant participated voluntarily in the prosecution, and it was carried on with his approbation and with his counsel, he is liable in damages, whether there were others who were concern-, ed in it or not. This was the substance of the plaintiff’s second point, to which I discover no answer.

Judgment reversed and a venire de novo awarded.


author: Huston, J.

text:
    WILLIAM LE BARRON against JAMES HARRIOTT and JOHN BENNETT.
    IN ERROR,
    in an action of debt on bond, conditioned for the performance of the covenants contained in a certain article of agreement therein referred to, to which the defendants pleaded “covenants performed and no breach, &c.” Held: That an award of ar« bitrators, finding' a sum due by the plaintiff to the defendant is good.
    The powers of arbitrators are not less extensive than those of a court and jury.
    If a jury can, under any form of pleading's, find a sum in favour of a defendant, arbitrators can do it in the same cause, without regard to the pleadings.
    A verdict, finding a sum m favour of a defendant, may be given, in debt, covenant, or any action on contract, where two persons have been dealing together.
    Error to Crawford county.

      James Marriott and William McOrady of the one part, and William Le Barron of the other part, entered into an article of agreement, by which the party of the first part were bound to deliver to the party of the second part a certain quantity of timber, at specified prices. The party of the first part, together with John Bennett as their security, gave a bond to the plaintiff, in the penalty of $3,000, conditioned for the faithful performance of their contract.
    This suit was brought upon that bond.
    The defendant craved oyer of the bond and condition, which, together with the article of agreement referred to therein, were set out at length upon fhe record. They then pleaded “ covenants performed; no breach, Sic.”
    A rule of reference was then entered by the defendants, arbitrators were chosen, who-heard tiie parties, and made a report in favour of the defendant for $300, which became a final judgment, and to reverse which this writ of'error was sued out by the plaintiff below.'
    Error assigned — That this being an action of debt on bond, conditioned for the performance of a contract, of which the defendants craved oyer, and had the condition set out, and then pleaded “ covenants performed, no breach, &c.” without pleading payment or set-off, or giving any notice of special matter, the arbitrators could not legally award a sum of money for the defendants.”

      J. S. Riddle and Banks for plaintiff in error.
    The bond upon which suit was brought contained no stipulation for the payment of money, it was an action brought' to ■recover damages from the defendants, for a non-performance of their eon» tract; and no evidence was competent on their part, but that which would have the effect of shewing, that they had performed their covenants, or a good and legal reason' why they did not. The defendants pleaded “ co venantsperformed and no breach,&c. ” which was a notice of a legal gr equitable defence; but was not notice that they intended to claim a-set-off, and recover money from the plaintiff. Cited: King v. Diehl, 9 Serg. & Raiole, 409. Calvin v. McClure, 17 Serg. & Raiole, 385.

      Derricleson and Wallace for defendant in error.
    When a cause is referred to arbitrators, under the arbitration law of 1810, it is a tribunal before whom every thing may be tried, which can be tried under any state of pleading, which the action will admit: and this is so, whether there is any pleading on the record or not. “ All matters in variance between the parties” are referred; by which it wouM seem, that the legislature intended to extend the powers and jurisdiction of this tribunal, even beyond that of a court and jury having jurisdiction to try the same cause.
    The form of the oath administered to the arbitrators is, that they will try “all matters submitted to them:” not by the pleadings, but by the whole transaction, out of .which the cause of action originated. As in this case, the defendants had performed their contract, to an amount beyond the payments of the plaintiff, was it not a matter “in variance between the parities” how much the one party and the other had done, in pursuance of their contract; and which was indebted to the other? Why should the right of the defendants, to recover against the plaintiff, be determined by the pleadings ? If the rule to refer be entered by the defendant, as it was in this ease, the law requires no pleadings as preliminary to such reference: — the plaintiff need not declare, the defendant need not plead. Here there was no issue. For the purpose of conducting the proceedings before arbitrators, the pleadings are by parol: and the fact of the defendant having obtained an award of #300, is conclusive evidence, that they insisted upon their right so to recover, which is equivalent to a plea. The 6th section of the act of 1705, Purd. Dig. 411, authorized amendments in the pleading to be made at any time: and there is no reason that the amendments should not be made before ar-bitrátors, as well as elsewhere.
    The argument, that the plaintiff was taken by surprise, not having had notice, by the pleadings of. the defendants, or otherwise, of their intention to claim a set-off, and a recovery of money, is not sound ; because if so, it would have been a good cause to postpone the trial; so as to give him an opportunity to meet it. But there was more than one meeting of the arbitrators in this case. In Lewis v. Culbertson, IT Serg. & Hawle, 59, there was no plea of set-off, and the defendants recovered a sum from the plaintiff; there was no fault found with this.
   The opinion of the Court was delivered by

Huston, J.

I had supposed, the extent of the authority of arbitrators, in a case submitted to them, was pretty plainly expressed in the act of assembly, and long settled by decision.

The power of courts and juries in cases of mutual accounts or? bargains, under the act of 1715, was well settled. The act of 20th March, 1810, gave the parties a power of entering their determination to have arbitrators chosen in'any civil suit or action,&c. and no lawyer ever seriously thought, and no< court have ever decided, that the powers of the arbitrators were less extensive than those of a court and jury. Their powers are, by the 10th sect., of the act of .1810, very extensive ; they are judges of law and fact, and equity; — and their report was to have the effect of a judgment against the party against whom it is made, and be a lien on his real estate until reversed by appeal. Here it is contemplated that the judgment and lien may be against either party. And in the 12th and 14th sections,, regulating the recognizance of bail on appeal, the plaintiff, if he shall not recover a sum greater, or a judgment as or more favorable, &c. which last words have always been held to apply to a case in which there has been a report for a sum in favor of the defendant; and on appeal, he has-lessened the amount of .such finding for defendant.

At first it was not necessary, in order to the determination of a cause before arbitrators, that there should be either declaration, statement,, plea, or issue — nor are the arbitrators to keep a record of their proceedings. 6 Binn. 177, 333. 1 Serg. & Rawle, 19, 435. The act 28th March, 1820, compelled the plaintiff to file a narr. before he could enter a rule to arbitrate ; — but the defendant may arbitrate before narr. filed, or plea pleaded. No one who lived at or since 1810 ever supposed it was the intention of the law that the proceedings of the arbitrators could be at all trammelled by the pleadings. Where a narr. or statement is filed, they look at it, to see for what cause the suit is brought; but it never was expected or intended that they should judge of sufficiency in point of form of either narr. or subsequent pleadings. To their powers, in certain respects, a limit has been established by the Court, to wit: that they shall not give costs, where an express law forbids them, and some such cases.

If the plaintiff in error is right, a proceeding before arbitrators is more trammelled by form than a trial in Court: — for in Court, if it becomes necessary, to reach justice, the plea may be changed, or a new one added during the trial; but no such power is given to arbitrators; and it never was expected they would or could exercise it

I may then safely say, that if, in .the case trying, a jury could, under any form of pleadings; find a sum-in favor of a defendant, arbitrators can do it in the same cause, without regard to the pleadings. It has not been even pretended, and it cannot be pretended, that a verdict, finding a sum in favor of the defendant, may not be given in debt or covenant, or any action on contract, wherever two person have been dealing together.

I shall refer to one or two decisions bearing directly on the point in dispute. 2 Serg. & Rawle, 106-a report bad been made against the defendant, who filed two exceptions. The Court say, “the exceptions must be dismissed':- — the defendant complains that the arbitrators erred in point of law, in rejecting his evidence ; but if so, his remedy is not by filing exceptions, but by appeal; the act of assembly gives the arbitrators the power of deciding on the competency of the evidence, as well as its credibility ; and to determine all questions in the cause, as well of law as of fact.”

And again, in 4 Serg. & Rawle, 140, the Court say, the act of March, 1810, has introduced a new system, giving to the arbitrators all the necessary powers for hearing and deciding, without the interference and control of the Court. They are constituled the sole judges of the competence of evidence, and of every question of law or fact arising in the cause, &c.” and again, — “The appeal seems to be the only remedy immediately contemplated by the legislature.” The case then goes on to state, that it must appear that arbitrators were properly chosen, &e. and notice given, before jurisdiction attaches in them, &c., and adds, “But when the jurisdiction of the arbitrators' has completely attached, the cause is out of Court, nor can the Court afterwards make inquiry into the proceedings before the arbitrators, &c.” This case was fully argued by very able counsel, and I supposed, had settled the law. Again, in 8 Serg. & Rawle, 391, the Court say, “If the award was illegal on its face, as is alleged here, the dissatisfied party might appeal to the Court of Common Pleas.” The Court of Common Pleas had in that case interfered without appeal, and this Court reversed what it had done, and reinstated the award.

After such an uniform course of decision, acquiesced in for 20 years, and a decision, as we think, in conformity with the letter and spirit of the act, this matter ought to be at rest. Let the dissatisfied party appeal, or acquiesce, without calling on this Court constantly to be revising and repeating the same matter.

Judgment affirmed.


text:
    PETER PRIDE against SAMUEL THOMPSON.
    IN ERROR.
    An award of arbitrators, in an'aetion of covenant, finding a sum due to the defendant by the plaintiff, is good.
    Writ of error to Venango county.-
    This was an action of covenant, in which the plaintiff in error was the plaintiff below.
    Defendant pleaded, “covenants performed, absque hoe;- no breach. Issue.
    , The cause was referred, under the compulsory arbitration act, and the arbitrators made an award in favor of the defendant for twenty dollars.
    . Error assigned. “The arbitrators had no power, in an action of covenant, and on the defendants pleas, to award a sum in favor of the defendant; or to receive evidence of set-off, which they must have done.”

      Galbreath and Pearson for plaintiff in error.

      JBredin for defendant in error.
    See opinion in Le Barron v. Harriott, ante 154.
   Judgment affirmed.


author: Per curiam.

text:
    JONATHAN ALLEN against MATHIAS FLOCK.
    IN ERROR.
    If a jury, in an action of ejectment, find a verdict for the plaintiff, and that he shall pay the defendant a specified compensation for improvements, and make that a condition of the recovery, a judgment upon such finding would be erroneous. But if in such case the jury award a just compensation to the defendant for improvements, it is uncertain; and perhaps would not vitiate the part which is certain, the verdict being complete without it.
    A verdict, in an action of ejectment, for the plaintiff, and which gives costs to the defendant, is bad, and would be reversed on error: but it cannot be treated as a nullity.
    When damages, or costs, or both ought to be .assessed, if the jury omit to assess either, the plaintiff may still make the verdict good, by releasing his right to either or both.
    The waiver of a writ of error by the plaintiff, in this case, is, in effect, a waiver of costs.
    Error to Mercer .county.
    This was an action of ejectment for atraet of land, brought by Mathias Flock against Jonathan Mien and Thomas McCleary, in Which the following verdict was given: “We find for the plaintiff for his claim, according to his patent to the district line, and that defendants receive a just compensation for the improvements, up to the suit was entered'; and the plaintiff pay all costs of suit.”
    The plaintiff’s counsel moved the Court to enter judgment generally upon the verdict for the plaintiff: which was done.
    The plaintiff taxed his bill of costs, and issued a fi. fa. therefor; when this writ of error was sued out.

      Pearson and Banks for plaintiff in error
    Contended that the execution was erroneous, that if the plaintiff below assented to the verdiet he must accept of it as it was rendered by the jury.

      S. B. Foster for the defendant in error. >
    In an action oí ejectment a jury have no power over the costs; the plaintiff had a right to consider their finding .in that particular as surplusage and treat it as such.
   Per curiam.

-So much of the verdict as awards a just compensation to the defendant for improvements, is uncertain; but perhaps it would not vitiate the part which is certain, the verdict being complete without it. Cro. Car. 219. 2 Saund. 208. 6 Rep. 57, Dowdales‘ case. But it would seem that if the compensation had been specified and made a condition of the recovery, the judgment would have been erroneous. Collins v. Rush, 7 Serg. & Rawle, 155. But the verdict was clearly bad in giving costs to the defendant. Trials per pais, 159. And the question is whether the plaintiff can disregard this, and take execution as if costs were found for him. Where damages or costs, or both, ought to be assessed, if the jury omit to assess either, the plaintiff may still make the verdict good by releasing his right to either or both. 2 Lill. Abr. 798. Is not the waiver of a writ of error, in effect, a waiver of costs here? The plaintiff might have reversed the judgment; but he was content to let it stand, and he must take it as it is. In this, the verdict did not find a thing which was not in the issue, but a part of the issue erroneously, and it cannot be treated as a nullity. The award of execution for costs was therefore erroneous.

Execution reversed.


text:
    WILLIAM FOSTER, surviving partner of WM. & JAMES FOSTER against DANIEL ANDREWS.
    IN ERROR.
    A due bill signed by one partner or by the cleric, in the name of the firm, is prima fade evidence that it was given fo r the debt of the firm.
    $f a note be given by one partner, in the name of the firm, for his own private debt, and the other partner upon being informed of the transaction, does not dissent or give notice to the payee, that he will not be liable, he shall be bound.
    Writ of error to Crawford county.
    This was an action of assumpsit brought by Daniel Andrews against William Foster, surviving partner of the firm of William & James Foster, on a note signed “for Wm. & J. Foster, Wm. JL. Foster,”
    The note was signed by William A. Foster, the clerk, in pro--sence oí James Foster, upon a settlement made between him and the plaintiff. It was alleged by the defendant, that this note was given for the private debt of James Foster; the elerk who was examined did not recollect what the consideration of it was, further than what the books exhibited.
    Several points were put to'the Court upon which to instruct the jury; two only are material, which, together with the Court’s answers, will fullv explain the case.

      1. That one of two partners in trade, cannot charge the partnership with his private separate debt, without the consent of his co-partner; and that such consent must be satisfactorily proved to a jury.
    2. That it was not necessary for the defendant to give notice to the plaintiff of his dissent, if the note was given for the private debt of James Foster to the plaintiff; and that the plaintiff knew that fact at the time.

      Shippen,president. — -It is clear law, that if one partner without the knowledge of the other, gives the note of the firm for his own private debt, it did not bind the firm. But if the other partner were present; and permitted it to be done, it would bind both; so, if it has met his subsequent assent.
    In the present case William Foster was absent; but what ap-, pears material to the Court is, that the present transaction (differing from Livingston V. Roswell,) was in the store of the firm, was done by the cleric, and agent of the firm, was entered on the books of the firm, on the same page that Daniel Andrews was credited with “one due bill,” for $95 564, James Foster was charged with a larger sum paid Andrews, $163: and in the same pages of.ledger, where these matters are posted, other entries are made by William Foster.

    Did William Foster know of these transactions after his return home; and did he dissent? These are inquiries for the jury. He did not complain to his clerk, and I recollect no proof of his disavowing the transaction to D. Andrews, until after the death of James Foster, which happened 19 or 20 months after his return. If he had dissented to Andreios before the death of James, Andrews might have secured himself by a resort to James. The principal who does not disavow the acts of his agent, when apprized of them, maybe bound by them. 14[Serg. & Rawle, 27. And if the defendant knew of this transaction, as by the books of the firm he should know, and did not early disavow it, he may be bound by it.’5

      J. S. Riddle and 8. B. Foster for plaintiff in error.
    Contended that it was'incumbent upon the plaintiff to prove, that the note was given in the course of partnership business; and that the note itself was not prima facie evidence of that fact. Cited: Dob v. Moisey, 16 Johns. Rep. 3S. Baird v. Cochran, 4 Serg. & Rawle, 397. Livingston v. Hastie, Cane’s Cases in Error, 246.

      Wallace for defendant in error.
    Whom the Court declined to hear.
   Judgment affirmed.


text:
    PETER YOUNG et als. against DAVID HOSACK.
    IN ERROR.
    The 3d section of the act passed in 1804, providing for the sale of unseated lands for taxes, is a statute of limitations.
    The defendant in ejectment, having shewn a duplicate, found in the commissioners’ office, in which the land in dispute was charged with a tax; a warrant to the sheriff; the sheriff’s sale list, and a deed from the sheriff for the land, and that he had been in possession for ten years; it was held, that a plaintiff who had a legal-, title could not recover the land, in an action commenced more than five years after such sale by the sheriff.
    Error- to the Common Pleas of Mercer county.
    This was an action of ejectment, for a tract of land in which the plaintiff in error was the plaintiff below.
    The plaintiff exhibited a regular chain of title to the land in dispute.
    The defendant proved,, that he took possession of the land in the fall of ISIS, and has resided thereon ever since; and then offered in evidence a deed- from J2. Sankey, sheriff, to Thomas Hosacle, dated l'3th September, 1808, made by virtue of a sale for taxes.
    This evidence having been objected to by the plaintiff, on the ground that no authority to make such sale was shewn, it was rejected.
    The defendant’s counsel then offered in evidence a paper purporting to be an assessment of road tax, laid on said lot for the-year 1804, amounting to ®l 80; and also a duplicate, in which this-lot was charged with the sum of $% 75, purporting to be the county tax of the year 1805': and a duplicate of road tax for the year 1805, amounting to $1 25; and a duplicate for the year 1806, in which this lot was charged with the sum of $1 25, purporting to be road tax for said year, 1806. It was proved by Thomas Rogers, one of the commissioners of Mercer county,, that said duplicates were found in the Commissioners’ Office, filed as duplicates. And it was admitted said papers were office papers; it was also-proved by John McCoy, that the defendant went into possession of the land in dispute, in the fall of the year, 1815;. and has resided there ever since.
    This evidence was objected to by the plaintiff. The objection was over-ruled and exception taken.
    The defendant’s counsel then offered in evidence a book marked “sheriff’s sale-list,”'and proved by Hugh Bingham, that said book was found in the commissioners’ .office, and was in the hand writing of their clerk. Also, a paper purporting to be a warrant from the commissioners to sheriff Sankey to proceed and -sell lands for tax, dated 23d April, 1808.
    This evidence was objected to by the plaintiff. The objection was over-ruled and exception taken. ■
    The defendant’s counsel then offered in evidence, the deed of-Ezekiel Sankey sheriff of Mercer county., To which the plain'.tiff objected:
    1st. Because it had not been shewn, that any county tax had ■been assessed on said lot, 'at the time of the sale, for the years 1804 and 1806.
    2nd. Because no bond for the surplus had been shewn, or offered to be shewn.
    3d. Because it had not been shewn, that Ezekiel Sankey had given bond and recognizance and was commissioned, according to the provisions of the act of 28th March, 1803.
    The Court over-ruled said objections, and received the deed in -evidence. To which the plaintiff excepted.
    Defendant then proved, that he came into possession of the -land by agreement with his brother Thomas Hosack.

    The Court were requested to charge the jury,
    1st. That the defendant in this case, not having shewn that notice was given by the commissioners for four weeks, in three of the daily newspapers of the city of Philadelphia, and in one ■other newspaper in or nearest the county, that the tax for which it is alleged this land was sold was due, that the sale is void.
    2nd. That inasmuch as the county taxes for the years 1804 and 1806 have not been shewn, that the sale by the sheriff of the land in dispute is void.
    3d. That it not having been shewn, that Thomas Hosack, the purchaser, gave a bond for the surplus money.remaining after the taxes, which have been shewn in evidence, and the costs were paid to the sheriff, that the sale is void.
    4th. That unless the jury are satisfied, from the evidence, that ■the sheriff’s sale-list, given in evidence, was annexed to the commissioners’ warrant, or given by them to the sheriff with the warrant, that the sheriff had no authority to sell this land, and.that the plaintiff in that case would be entitled to recover.
    To w/hich the Court answered,:

      Shippen, President. — By the act for the sale of unseated lands for taxes, “no action for the recovery of such lands shall lie, unless the same be brought, within .fire years after the sale thereof ■for taxes.” This act has been, solemnly decided by the Supreme Court of the state, to be a statute of limitations,; and as a statute «of limitations, we are bound to take it as aoolicable to this case.

      Plaintiffs have shewn a patent title without actual possession. The defendant has shewn that he entered on the land in the fall of 1815, under a deed, made in pursuance of a sale for taxes; and that he moved on the land next spring, and has continued there ever since, and made valuable improvements. The sheriff’s deed under the sale for taxes has been shewn. The warrant from the commissioner to the sheriff is shewn; and the assessments of both county and road taxes are shewn. The assessments are shewn as the authority of the commissioners to issue their warrant; and the warrant as the authority of the sheriff to make the sale and conveyance. Under this proof and these circumstances, the court refuse to decide that this deed is void, as requested in tlm 1st, 2d, and 3d points made by plaintiffs.
    A warrant to sell a bract of land, should describe the land, or it should be described in a schedule annexed or accompanying the warrant. It is not essential that it should be fastened to the warrant. I am satisfied of this, by the decision of the Supreme Court in Luffborough v. Junkin, in which case Mr. Shannon, 3. commissioner w-ho signed the warrant, testified that the list was not annexed when he signed the warrant, but that the clerk was directed to furnish the sheriff with a list of tracts to sell. That warrant and list was decided to be good. Now, if the jury are satisfied that this list was made out by the order of the commissioners, and accompanied the warrant, or came to the hands of the sheriff, then' the warrant and authority to the sheriff to sell, is sufficiently made out, and the sheiiff’s deed would vest a good title in the purchaser.
    The charge of the Court was excepted to,
    Errors assigned — 1st. The Court erred in receiving in evi* dence the assessments or duplicates, sheriff’s sale list, commissioners’ warrant, and sheriff’s deed; as stated in'first, second and third bills of exceptions,
    2nd. In not charging the jury, as requested in the 1st and 3d points, put by plaintiff’s counsel.
    3d. In charging the jury that the act for the sale of unseated lands for taxes, operated as a statute of limitations, as applicable to this case.
    4th. In charging the jury, that if the list was made out by the order of the commissioners, and accompanied the warrant, or came to the hands of the sheriff, then the warrant and aythority to the sheriff to sell is sufficiently made out, and the sheriff’s deed would vest, a good title in the purchaser-

      S. B. Foster and Banks for plaintiff in error.
    The limitation contained in the 3d section of the act of 1804,
      JPurd. Dig. 733, was only intended to cure apparent irregularities, which the lapse of time would make it difficult to explain, but not to dispense with the positive requisitions of the act, 1 Wheaton, 476. In this ease there was no evidence of the appointment of assessors, no oath administered to them, no advertisement of the tax due and time of sale. These are important requisites, the omission of which are not irregularties, but total omission. The 2d section of the act provides, that one year shall elapse from the time of assessment, before a sale shall be made, of which at least four week’s notice shall be given. Can the Court presume that this time did elapse, and that this notice was given? There was no evidence that a bond was given for the surplus; which renders the sale void. Sutten v. Nelson, 10 Serg. & JRawle, 238.
    The duplicate given in evidence, did not prove the fact for whiclFit'was offered. It did not prove that a tax was due. The .assessment of a tax must be founded upon the triennial assessment, without which it is void, Stewart v. Shoenfelt, 13 Serg. & JRawle, .378. It cannot be that a mere deed, without authority to make the sale, will give a title, by which the rightful owner is deprived of his land, and that too, without any evidence that a bond was given, upon which he might recover the surplus. Cited: Wain v, Shear-man, 8 Serg. & JRawle, 368. Birch v. Fisher, 13 Serg. & JRawle, 209. Stewart v. Shoenfelt, 13 Serg. & Raivle, 368.

      tdyres for defendant in error.
    Stopped by the Court.
   Judgment affirmed.


text:
    ADAM STEINBROOK against JACOB STEINBROOK.
    IN ERROR,
    Upon a judgment, entered, on a special verdict, being reversed by the Supreme Court, and sent ba,ck to b.e more particularly stated, the cause may be arbitrated by either party.
    Error to the common pleas of Crawford county.
    This was an action of ejectment, for a tract of land, brought by Jacob Steinbrook against Jldam Steinbrook. A jury having been sworn and the testimony heard, the Court delivered their charge to the jury, which the parties then agreed should be considered in the nature of a special verdict. The Court entered a judgment for t.he defendant. The plaintiff sued out a writ of error from the Supreme Court. The judgment was then “reversed, ,a venire de novo awarded, and record remitted, to be more fully stated. ”
    When the cause -went back, the plaintiff entered a rule to choose arbitrators^ the arbitrators met, and made a report in favour of the plaintiff; .from which .there was no appeal. The defendant made a motion at the next .term to strike off the rule of reference, and all subsequent proceedings. .Upon, argument, the Court (Ship-pen, President,) -refused to do this. , The defendant then took out a writ of error..

      8. B. Foster for plaintiff in error,
    Contended., that the situation of this case was such, that it could not be referred to abitrators. That there being a special verdict agreed to, nothing could be done in the Court below, but to amend the same, according to the order of the Supreme Court j and which arbitrators could not and did not do.

      Derricks on and Selden for defendant in error,
    stopped by the Court..
   Judgment affirmed.


author: Per Curiam.

text:
    MOSES ALLEN against ELEANOR ALLEN.
    IN EUROS.
    putting- a,mare .to pasture, in consideration of her services, does not create a temporary-ownership in the person with whom she was put, so as to entitle him .to the increase.
    The person-to whom the mare is put thus is a naked bailee.
    Error to Crawford county.
    This was an action of trover., brought to recover the price of •a mare and two colts, by Eleanor AUen against Moses Allen.

    The mare belonged t.o the plaintiff; the evidence .of the manner in which the defendant obtained the possession of her and her colts, was thus'stated by a -witness.:
    “The plaintiff told the defendant, she had brought'her mare there to be kept for her service or work ; that she, had no pasture. Defendant said, he would keep her for her work, arid that he liked to tide her. Plaintiff said, it was uncertain how long she would leave her there. Defendant said, it was no difference how long she would leave her, that-her work was well worth her keeping.”
    During the time the mare was with the defendant, she had two colts, and whether the plaintiff -or defendant was the owner of them, was the question in this cause.
    The defendant’s counsel requested the Court to charge thejury that the eolts, under the facts given" in evidence, were the property of the defendant. But the Court (Shippen, President,) was of a different opinion, and so charged thejury; which'wa® assigned as error.

      Banks for plaintiff.In error.

      Cited, 2 Kent’s Com. 294.

      S. B. Foster, for defendant in error.
   Per Curiam.

There was clearly no hiring for a definite time, to constitute the defendant a temporary owner, which was necessary to entitle him to the increase. The transaction was a letting of pasture, in consideration of services to be rendered by the animal depastured, a contract altogether different from that of hiring. The plaintiff could, at any time, have taken the animal away without the consent of the defendant who was a naked bail-lee He was therefore not entitled to the direction which he required, and it was not error to withhold it.

Judgment affirmed.


author: GibsoN, C. J.

text:
    JAMES GREEN for use against DANIEL HERN.
    IN ERROR.
    To allow a prisoner in execution the liberty of the jail-yard, is not an escape. But taking the yard to be part of the jail, as it doubtless is, an actual escape from it will fix the jailer, who can avail himself of nothing, as matter of defence, but an act of God or of the common enemy.
    Error to Warren county.
    This was action of debt brought by James Green for the use of Benjamin Chamberlin against Daniel Hern, sheriff of Warren county, for an escape.
    The plaintiff’s evidence fully established the fact, that Hugh Nesbit was put into the custody of the defendant, by authority of an execution, issued at the suit of the plaintiff; and that he escaped, by breaking the wall around the jail-yard. •

      The defendant offered to prove, that the jail and jail-yard of the county were defective, and insufficient to keep prisoners; and to shew, that they had been examined by the grand jury,- and presented to the Court as insufficient.-
    To this evidence the plaintiff objected ;• but the Court overruled the objection and received the evidence. Exception was taken By the plaintiff.
    The defendant offered to prove a custom or common law in Pennsylvania, that debtors be permitted the use of the jail-yard in day-light. -
    This was also objected to ; but the objection was over-ruled and-exception taken by the plaintiff.
    Several points Were submitted to the Court by the counsel on the one side and the other, upon which they were requested to charge the jury, the substance of all which was this:—
    That if the jury find, that Hugh Ñesbit was committed to prison, on an execution, at the suit of the plaintiff; and that the' sheriff or his jailor suffered him to escape; he' rs liable for the' debt, interest and costs, for which he was committed; and that nc deficiency in the strength of the jail will excuse him»
    The Court did not-answer this affirmatively; but said that the least negligence on the part of the sheriff would make him liable.
    The admission of the evidence mentioned in the bills of exception, and the charge of the Court, were assigned as error.

      Galligher and Barritt for plaintiff in error:
    It is a well established principle of law, that when a defendant is put into the custody of -the sheriff, he is liable for him, until he is legally discharged ; not even a forcible rescue would exonerate him from liability. If it was not so, the objects of justice could not be obtained, such a door would be opened to fraud and connivance, that no plaintiff, with all the means in his-power, could ever detect.

      Pearson for defendant in error.
    In England the jailor kept his prison where he pleased, he was therefore liable at all events; not so here; for he must take and use the common jail, as he finds it: and has no right to expend even his own money in making it a safe place for prisoners. By the common law of Pennsylvania the jail-yard is a part of the prison ; and it was competent for us to prove that custom. Shewel r. Pell, 3 Yeates, 17.
   The opinion of the Court was delivered by '

GibsoN, C. J.

To allow a prisoner in execution the liberty of the jail-yard, is certainly not an escape. But taking the yard to be part of tbe goal, as it doubtless is, there was an actual escape from it, which according to the common law since the day of Roll’s abridgment, has uniformly fixed the goalor, who can avail himself of nothing as matter of defence but an act of God or of the common enemy. This is not denied; but it is pressed upon us that the common law is unnecessarily rigorous in this particular, and in some parts of the state unsuitable to the circumstances of the inhabitants. There cannot perhaps be a greater calamity than a disposition in the judges to dispense with or modify the law according to their notions of the exigencies of times and circumstances. It destroys, at once, all confidence in the security of person or property; and that too without even a distant prospect of a return to any system whose principles are known or whose authority is acknowledged. Surely there has been sufficient time since the foundation of the colony for experience to mark the necessary variations from the common law; and even had the colonists started with a new, instead of a mature system, it would be unreasonable to treat the jurisprudence of their descendants, at the end of a century and a half, as still in a state of fusion. It was an express condition of the charter, that the laws should conform, as nearly as possible, to those of the parent country ; and accordingly we find but few alterations, and these, for the most part by the legislature. Is it not then too late to begin the work of devastation in order to make room for experiments? Unfortunately a love of novelty is abroad; and it has become the fashion with a class of reformers, to despise the black letter maxims of a system to which their forefathers clung as their best birthright and noblest inheritance! There would be just cause for alarm did the same fashion obtain on the bench.

But conceding th,e competency of judicial legislation, I am unable to perceive how the edds of justice, or even of convenience, would be better answered by a new rule here. The prisons in the more remote counties being insecure, it is said, sheriffs and goalors would be subjected to an unreasonable risk by being held to the rule of the common law; and for this we have a nisi prius dictum of Chief Justice Shippen in Shewel v. Fell, 2 Yeates, 21. Butin proportion to the insecurity of the goal, ought it not to be the policy of the law to increase the vigilance of the goaler; and would that be effected by decreasing his responsibility? The office of a sheriff is a responsible, but a lucrative one; and I am unable to perceive thejustiee, more than the policy, of a rule that would require us to lose sight of the creditors rights in attending to the. officer’s'convenience. Whatever may have been ílíeistale of oi r prisons thirty years ago, they are with an exception or two, as secure as those in other countries; and little woufd-perhaps b® gained, even on the score of convenience, by establishing temporary rules of various degrees of responsibility in different parts of the sfate*. Nothing but the* hurry of a trial could have prevented the Chief Justice from perceiving the uncertainty and confusion of’ such a state of things, and the danger there would be in disturbing a fundamental principle of the common law. Never was remark more just, than that “whenever a standing rule of law, of which the reason perhaps could* not be remembered, hath been wantonly broken in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed from the innovation.” Plere however, the wisdom of' the particular rule appears in relief too prominent to be unperceived or forgotten. Is it to be credited that if the checks and;* restraints of the common law were removed, sheriffs and goalers would be inaccessible to those causes which have made instances of corruption* in* almost every sort of pecuniary trust so deplorably’ frequent? Let it be known that the question of liability is to depend on what a jury may deem the proper degree of vigilance, and escapes will be as common in civil as they are in criminal cases. Responsibility will be at an end ; and the interest of the creditor, who- from the very nature of the case, must be unable to shew negligence or connivance, will be deemed beneath the attention of the goalor, although the disposable force of the county is placed at his command for its protection. No lawyer ever disputed the rule which determines the liability of ferrymen and common carriers; yet the reason of it in regard to these is precisely the same as in regard to the species of bailment under consideration. We are of opinion, then, that the Court erred in receiving evidence of the insufficiency of the goal, and in putting the cause to the jury on the point of negligence.

■ Judgment reversed, and a venire de novo awarded:,.


author: Gibson, C. J.

text:
    GEORGE MOYER against CHRISTIAN GROSS.
    “Fhe act of the 7th February, 1812, which directs that patents shall issue on warrants obtained under the act of 22d September, 1794, without further evidence of settlement and improvement than that on which the warrant u as granted, was not intended to repeal that act, or to established titles obtained in fraud of it; but to make the original proof sufficient to authorize the issuing of the patent.
    This was an appeal from tfee Circuit Court of Westmoreland ■county.
    The plaintiff gave in evidence a warrant, dated the 28th June, 1797, to George 'Moyer, for 100 acres ofland on Little Sewickly; interest to commence .from the 1st of March, 1794: application for same, certified by two 'justices of the .peace, that agreeably to the best information, the same land was improved in the year 1794,' grain raised, and that a family resided thereon “at present,” ¡dated 16th June, 1797.
    ' A survey on said warrant, by the deputy surveyor, on the 23d •of March, 1814, of one hundred and eight acres.
    The defendant then offered to prove, that said George Moyer never resided on the said land; that he resided on Brush Creek, from 1790; and that no person ever resided thereon until 1829, when the defendant entered on the same and made an actual per.•sonal resident settlement thereon, with his family, and continued ■the same until the commencement of the present action.
    Which testimony so offered, being objected to by plaintiff, was -over-ruled by the Court.
    The Court then gave it in charge to the jury, that the plaintiff’s ■warrant by the law of the 7th of February, 1S12, entitled • “an >act more particularly directing the issuing of patents,” became good and valid to every intentand purpose on the execution thereof; except agáinst a title commencing prior to said survey; and could not'be impeached by proof of want of settlement, or improvement, sat or before-the said warrant'issued or at any time afterwards, by any improvement or settlement on said land after said survey for ■the plaintiff.
    The rejection of the evidence offered, and the charge oí the 'Court to the jury,- were assigned as reasons for a new trial; which .being over-ruled, ‘the. defendant appealed.

      Jl. W. Foster for appellant.
    This case depends upon the construction-wHidh the Court will ■give to the act of 7th February, '1812, Furd. Dig. 503. The only object of this act was, to relieve the person applying for a ■patent, from the trouble and expense of making the sanie proof of settlement which he had made before when he obtained his warrant; but it was not intended to supercede the necessity of a settlement, in order to the validity of the title. In this case, no patent had yet issued to the plaintiff, and it will be time enough, when the question arises, to discuss whether, even after a patent issues, an actual resident settlement will not be thebetter title. •

      J. B. Alexander for the appellee,
    did not argue the cause, as he could only repeat what the circuit judge had given as his reasons for the decision below.
   The opinion of the Court was delivered by

Gibson, C. J.

The act of the 7th of February, 1812, which directs that patents shall issue on warrants obtained under the act of the 22d of September, 1794, without further evidence of settlement and improvement than that on which the warrant was granted, was not intended to repeal that act, or to establish titles obtained-in fraud of it, but to make the original proof sufficient to authorize the issuing of the patent. It is the practice every day to issue patents that may not vest an indefeasible title; nor would it follow that the title must be necessarily bad, unless the patentee should prove the facts of settlement, and improvement, by new evidence, to the satisfaction of the Surveyor' Generel. There would be no incongruity in issuing the patent, for the sake of convenience, at the risk of the patentee as to title; and in leaving him to establish the goodness of it in an action with any adverse claimant. Had the act of 1812, been a repeal, it would have been unnecessary for the legislature to repeal the act of 1794, as they have done, by distinct, provision two years afterwards. Having been a member of the legislature in 1812, I know that no repeal was in fact contemplated, the law being introduced for the sake of convenience, and to obviate scruples perhaps properly entertained by 1he Secrelai'y of the Land Office. Since then, I have always understood the construction to be as I have stated it; and. on this ground the cause is sent to another trial. ¡

Huston, J. dissented.

Judgment reversed and a new trial awarded.


text:
    JONATHAN MONROE for the use of PAUL CLARK against SAMUEL WALLACE.
    IN ERROR.
    M. had a judgment-againstW., ivlio conveyed his land to C.; and on this W. and C. executed a bond and warrant to M.to secure the judgment debt, which was ultimately paid by C., who subsequently reconveyed to W. and claimed to be substituted for M. in the character of a surety. Held; That C. having had the means of payment put into his hands by W. had himself become.the principal debtor: and it was not competent for C., in order to avoid the eflect'of this, to allege that the conveyance to him was fraudulent and void; its object having been to elude W.’s creditors.
    Error to the Common Pleas of Indiana county.
    This was a feigned issue, to try the right to money in the hands of the sheriff, in which the plaintiff in error was plaintiff below.
    The case is sufficiently stated in the opinion of-dhe Court.

      J2. W. Foster for plaintiff in error.

      White, and Stannard for defendant in error.
   The opinion of the Court was delivered by

Gibson, C. J.

This is a plain case. Monroe has a judgment against Wallace, who conveys his land to Clark: and on this they execute a bond and warrant to Monroe to secure the judgment debt, which is ultimately paid by Clark, who subsequently reconveys to Wallace, and now claims to be substituted for Monroe in the character of a surety. But Clark having had the means of payment put into his hands by Wallace, had himself become the principal debtor: and to avoid the effect of this, he now alleges that the conveyance to him was fraudulent and void, its object having been to elude Wallace’s creditors.' But it was undoubtedly binding between Wallace and himself; and void or otherwise against creditors, at their election. In Cook v. Grant, 16 Serg. & Rawle, 198, there is a notice of the case of Bell v. Laughridge which was in all essential respects like the present. Every principle of honesty requires that the creditors, here, shall not be deprived of the legal advantage they have gained by. the actual payment of the judgment, in order to restore Clark to the situation from which he has fallen in his abortive effort to defraud them. He can derive .no equity from such a source; but the actual payment which he made, and. which was satisfaction of the judgment at law, must be left to its legal consequences. It was made by him in t;be assumed character of a principal debtor, and he shall not now be suffered, to assert that it was in a borrowed one. The lien is therefore gone. The bills of exception to evidence were faintly urged at the argument, and as they depend on' the same principle, it is unnecessary to give them a particular consideration, especially as the judgment is right on the merits.

Judgment affirmed..