text:
    Ortwein versus Commonwealth.
    1. Under sect. 66 of Act of 31st March 1860 (Criminal Code), the jury, before finding the fact of insanity specially, must be satisfied of it by the evidence.
    2. A reasonable doubt of the fact of insanity in a criminal case is not a true basis for the finding of it as a fact, and as a ground of acquittal.
    3. The evidence to establish insanity as a defence in a criminal case must be satisfactory, not merely doubtful.
    4. A person charged with a crime must be judged to be a reasonable being, until a want of reason positively appears._
    5. To make a want of reason to appear, the evidence must be satisfactory, not merely doubtful; nothing less than satisfaction can determine a reasonable mind to believe a fact contrary to the course of nature.

      6. Insanity, as a defence, must be so great as to have controlled the will and taken away the freedom of moral action.
    7. When the killing is admitted, and insanity is alleged as an excuse, the defendant must satisfy the jury that insanity actually existed at the time of the act; a doubt as to the insanity will not justify the jury in acquitting.
    8. Where a juror had formed his opinion in part from testimony taken before the coroner, as read in the newspapers, and part from rumor, but his opinion was so unfixed that he could hear and determine the case from evidence given on the trial uninfluenced by previous impressions, he was not incompetent.
    9. The inquiry as to the juror’s incompetency from previous opinion is, whether his opinion is a pre-judgment with such fixedness and strength as would probably influence and control his judgment, or formed upon the same evidence as will be given on the trial.
    10. Evidence before a coroner has not the same weight as that given on the trial.
    October 12th 1874
    Before Asnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to tbe Court of Oyer and Terminer of Allegheny county: Of October and November Term 1874, No. 210.
    Ernest Ortwein alias Mentzger was indicted for murder at tbe June Term 1874, of tbe Court of Oyer and Terminer of Allegheny county.
    On the 16th of June 1874, bis trial commenced before Sterrett, P. J., and Stowe, J., of tbe Court of Common Pleas of Allegheny county.
    In impannelling tbe jurors tbe prisoner challenged a number of tbe jurors for cause; they were severally examined on their voir dire, as to whether they bad formed or expressed an opinion as to tbe guilt or innocence of tbe prisoner. The examination of the jurors having been taken by question and answer, it is desirable to give it as taken.
    Alexander McClure said in answer to tbe above question:—
    A. Well, I don’t know, for certain, that I ever expressed an opinion.
    Q. Have you ever formed one ?
    A. Well, from reports I bad, almost, I suppose, come to a conclusion.
    Q. Is that Opinion based upon tbe reading of tbe testimony taken before tbe coroner’s jury ?
    ■ A. I read but very little.
    Q. Did you read any of it ?
    A. I read a very little. I bought a paper and brought it home with me for that purpose; on the way home in the wagon, I looked at it a little, but afterwards it got misplaced and I never could find it again. I beard a little of it read from tbe paper I got, but I didn’t bear very much of it read.
    Q. By tbe court. — Was tbe opinion you entertained formed from reading tbe testimony taken before tbe jury, or from outside testimony ?

      A. It was from that and rumor.
    Q. Both together ?
    A. Yes, sir. I don’t know that I would have come to any definite conclusion from either one separate from the other.
    Q. Could]you, with the opinion that you have formed, take your seat as a juror, and try the case under the law and the testimony, without being prejudiced or influenced by that opinion ?
    A. Yes, sir, I believe I could.
    Q. By the prisoner. — Does the opinion that you formed from reading or hearing read a part of the testimony taken before the coroner, as reported in the newspapers, at present exist in your mind? .
    A. That is the conclusion I drawed from what I read. I only read a portion.
    Q. Is that opinion existing in your mind now ?
    A. Well, I believe it does.
    Q. Would it not then require some evidence in order to eradicate that opinion; to remove it ?
    A. It would take further evidence than I read.
    Q. Would it require some evidence now to remove that opinion ?
    A. I suppose it would.
    Q. Would you act upon that opinion as a juror, or, acting as a juror under the law and the evidence, would it have any effect in bringing you to a conclusion as to the guilt or innocence of the prisoner ?
    A. Well, I don’t know that it would.
    Q. Do you know that it would not ?
    A. I believe it would not.
    He was challenged for cause; the challenge was overruled, and a bill of exceptions sealed.
    The prisoner challenged peremptorily.
    William Douglas, in answer to the above question, said:—
    Yes, sir, as far as newspaper reports are concerned.
    Q. Have you read the report of the testimony' taken before the coroner’s jury as published in the newspapers ?
    A. I did, sir.
    The prisoner challenged for cause.
    Q. By the court. — Is the opinion you formed or entertained, one that would interfere with your rendering a verdict according to the law and testimony, uninfluenced by that opinion ?
    A. No, sir.
    Q. By prisoner. — You say you read the testimony taken at the coroner’s inquest, as published in the newspapers.
    A. Yes, sir.
    Q. The opinion you formed was a consequence of reading that testimony.
    A. I was pretty much of one opinion.

      Q. You mean you were of the same opinion before reading it as afterwards ?
    A. Yes, sir.
    Q. You still hold that same opinion ?
    A. Yes, sir.
    Q. Would it require some evidence to remove that opinion?
    A. Yes, sir, it certainly would.
    Q. By the court. — You state that it would require evidence to remove your opinion ?
    A. Yes, sir.
    Q. Would that opinion influence you in any degree m rendering a verdict in the case, if you took your seat as a juror, according to the law and the evidence ?
    A. No, sir; it would not.
    Q. Were you at the coroner’s inquest?
    A. No, sir.
    Q. The reports you read were the newspaper reports of the proceedings before the coroner’s jury ?
    A. Yes, sir.
    The challenge was overruled, and a bill of exceptions sealed.
    The prisoner challenged peremptorily.
    H. Eaton in answer to the question said:
    A. In a measure I have. I read a great deal in the newspapers at the time, but I did not read the coroner’s inquest.
    Q. Does that opinion you say you formed partly remain with you now ?
    A. Yes, sir.
    Q. Would it require evidence to remove that opinion ?
    A. I must have something to remove that opinion.
    Q. By the court. — Do you mean that, if you were to take your seat as a juror, the opinion you have would influence you in rendering a verdict ?
    A. I would render my verdict according to the law.
    Q. Would that opinion you have influence you in rendering your verdict ?
    A. I think not, sir.
    Q. Then you could take your seat as a juror and act impartially, notwithstanding the opinion you have ?
    A. I could.
    Q. When you say that it would take evidence to remove the opinion that you have, do you mean that that opinion would influence you as a juror, until you had evidence to remove it?
    A. I think not, sir — not at all.
    Q. Still you have an opinion personally as a man, until you change it ?
    A. Exactly.

      Q. But as a juror you think you could try the case uninfluenced by it ? ‘
    A. I am sure I could.
    Q. By prisoner. — Did you say that it would require evidence to remove the opinion that at present exists in your mind ?
    A. I said I must have something to remove this out of my mind. Of course, whatever is in your mind, we must always have something to eradicate it out. I have not made up my mind against this man.
    The prisoner challenged for cause.
    The challenge was overruled, and a bill of exceptions sealed.
    William Smith in answer to the question said:
    A. Yes, sir.
    Q. Is that opinion formed from reading the testimony taken before the coroner’s jury, as published in the newspapers ?
    A. Yes, sir; reading the testimony before the coroner’s jury, and in the newspapers generally.
    Q. Are you still of the opinion then formed ?
    A. Yes, sir.
    Q. Would it require evidence to remove that opinion from your mind?
    A. Yes, sir, it would.
    Q. By the court. — If you were called upon to act as a juror, do you think you would be able to dismiss the opinion you have formed, from your mind, and try the case without reference to it ?
    A. Well, I believe I could.
    Q. Do you think you would if you were called as a juror ?
    A. Yes, sir.
    Q. Unaffected by any opinion now as to the guilt or innocence of the prisoner ?
    A. Yes, sir.
    The prisoner challenged for cause.
    The challenge was overruled, and a bill of exceptions sealed.
    Oliver S. Mcllwaine in answer to the question said:
    A. Yes, sir.
    Q. How was that opinion formed ?
    A. From reading the reported account in the newspapers.
    Q. You formed your opinion from what report ?
    A. From the report of the reporter.
    Q. Have you that opinion still?
    A. Yes, sir, I have.
    Q. Would it require.evidence to remove that opinion from your mind ?
    A. Yes, sir, I think it would.
    Q. By the court. — Is the opinion you entertain such as you could dismiss from your mind altogether, if you were called upon to act as a juror in this case ?
    A. Yes, sir, I could.
    Q. Do you think, then, if you were required to act as a juror, you would he able to hear and decide the case fairly according to the evidence produced in court, without being prejudiced or affected by that opinion ?
    A. Yes, sir; I think I could.
    Q. By prisoner. — You have stated already that you have an opinion, and that you would require some evidence to remove it. Would it require evidence in the jury-box to remove the opinion that you now have, before you could undertake to sit as an impartial juror ?
    A. Yes, sir; from the reports I formed my opinion, and it would require something else to remove that.
    Q. By the court. — The question is, whether you would be able, if called upon as a juror, to decide this case, unaffected by the opinion you now have, according to the law and the evidence ?
    A. I could.
    Q. _ Could you dismiss that opinion and try the case without being affected or influenced in your mind by it ?
    A. Yes, sir; because the opinion is not formed strong enough in my mind; I didn’t read it close enough.
    The prisoner challenged for cause.
    The challenge was overruled and a bill of exceptions sealed.
    The juror was sworn.
    Robert Neely.
    Q. Have you read of the Ortwein case ?
    A. I have.
    Q. Read of it in the newspapers ?
    A. Yes, sir; some.
    Q. Did you read the testimony taken before the coroner’s jury, as published in the newspapers ?
    A. I don’t think I read that testimony.
    Q. Did you read anything about his confession ?
    A. Yes.
    Q. Have you formed or expressed an opinion as to the guilt or innocence of Ortwein, the defendant ?
    A. I don’t know as I have formed an opinion, but I have expressed one. I have expressed myself in conversation in regard to it.
    Q. If you have not formed an opinion, how could you express one ?
    A. It is the same thing, I know; forming or expressing. It amounts to the same.
    Q. Then when you say you have not formed an opinion, but expressed one, you mean that expressing an opinion being the same as forming one, you have already formed one ?
    A. Yes, sir.
    Q. Have you that opinion still ?
    A. Well, I have not been thinking about it; I .have not been paying any attention to it at all.
    Q. When did you last express that opinion ?
    A. Oh, it is a good while ago.
    Q. Did you express it more than once ?
    A. More than once; yes, sir.
    Q. Did you express more than one opinion ?
    A. No, sir.
    Q. Always the same ?
    A. Yes, sir.
    Q. You think you have not that opinion now ?
    A. Well, I don’t know; I have not been thinking about it for some time.
    Q. Have you an opinion now, as to the guilt or innocence of the prisoner, Ortwein ?
    A. I believe I have an opinion now.
    Q. Would it require some evidence to change that opinion ?
    A. Well, yes; it would. '
    Q. By the court. — What do you mean by that ?
    A. I say it would require evidence to change that opinion.
    Q. Do you mean if you were called upon to act as a juror in the case, that that opinion could affect you in the verdict you would render ?
    A. No, sir.
    Q.- Then you think you could dismiss from your mind any such opinion as you entertain, and decide by the law and the evidence, uninfluenced by that, opinion ?
    A. Yes, sir; according to the testimony.
    The prisoner challenged for cause.
    The challenge was overruled and a bill of exceptions sealed.
    The juror was challenged peremptorily.
    The fourth and fifth points of the prisoner were :—
    4. If the jury have a reasonable doubt as to whether the killing was done under an irresistible impulse, the result of a disordered
    mind, which overpowered the will of the prisoner and took away his power of controlling it for the time, they cannot convict.
    5. If the jury have a reasonable doubt of the sanity of the prisoner at the time of the killing, they cannot convict.
    The court (Stowe, J.) answered:— .
    “ The fourth and fifth points are refused and will be more fully considered together. The law presumes sanity, but this presumption may be shaken or absolutely destroyed in some cases by the acts connected with and accompanying the commission of a crime. But before you acquit upon such ground, the evidence, whether arising out of such circumstances or from independent circumstances, must be sufficient to do more than merely raise a doubt as to the prisoner’s insanity. It must be sufficient fairly and reasonably to satisfy you of the fact of such insanity. The law does not require proof to an extent to preclude a reasonable doubt of such insanity, but it should be such as to satisfy you from the preponderance of testimony that the prisoner was insane at the time of the killing. As we have heretofore said upon this same subject, in a case which has received the endorsement of our Supreme Court: ‘ The law of the state is, that when the killing is admitted or proved, and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a mere doubt as to such insanity, raised by the evidence, will not justify the jury in acquitting upon that ground. The law presumes sanity where an act is done, if no insanity is shown by the evidence; and where it appears a man was sane shortly preceding the act and shortly after, the presumption of sanity exists as to the time of the act, and no jury have a right to assume otherwise, unless the evidence in the cause bearing upon that question fairly convinces them that the defendant was actually insane at the time the act was committed. Having thus indicated to you the amount of evidence required to sustain the defence set up here, the question arises, what do we mean by insanity ? In a general sense it means unsoundness of mind, and, medically speaking, comprehends various conditions of the mind arising from various causes having various symptoms and producing different results. All these things we leave to those whose business it may be to study and investigate them. It is sufficient for us to say here and so far as the case is concerned, that it is a condition of the mind which renders it incapable of reasoning or judging.correctly of its own impulses, and of determining whether they should be followed or resisted. As said by the present Chief Justice, ‘ intelligence is not the only criterion, for it often exists in the madman in a high degree, making him shrewd, watchful and capable of determining his purposes, and selecting the means of accomplishment.’ Want of intelligence, therefore, is not the only defect to moderate the degree of offence, but with intelligence there may be an absence of power to determine properly the true nature and character of' the act, its effects upon the subject and the true responsibility of the action; a power necessary to control the impulse of the mind and prevent the execution of the thought that possesses it. In other words, it is the absence of that self-determining power, which in the sane mind renders it conscious of the real nature of its own purposes and capable of resisting wrong impulses. Where this self-governing power is wanting, whether it is caused by insanity, gross intoxicafion or other controlling influences, it cannot be said, truthfully, that the mind is fully conscious of its own purposes, and deliberates or premeditates the sense of the act describing murder in the first degree. We must, however, distinguish this defective frame of mind from that wickedness of heart which drives the murderer on to the commission of his crime, reckless of consequences. Evil passions do often seem to tear up reason by the root and urge on to murder with heedless rage, but they are the outpourings of a wicked nature, not of an unsound or disabled mind. It becomes necessary, therefore, to inquire upon the evidence in the' case, whether the prisoner was really able to deliberate and premeditate the homicide.

      “ Now, having stated the principles of law applicable to this case, the facts under the evidence in the cause are yours. The killing is not denied. The accompanying circumstances of time and manner clearly indicate, under a sane condition and the legal responsibility of the prisoner, the highest .crime known to the law. The only excuse urged in his behalf is, that he was insane and driven by some irresistible impulse to do the horrid deed. Are you fairly satisfied from the evidence that such was the case ? If you are, it is your duty to acquit; but, if not, it is just as clearly your duty to convict. Of the value of the medical and other evidence on behalf of this theory, it is your duty to determine, but I feel it is my duty to say, that in my opinion, such evidence as has been adduced in this respect, ought to be scanned by juries with great care and the utmost circumspection, because the inconsiderate and careless assumption of the sufficiency of such a defence as is here set up, would tend inevitably to the justification of every crime which can be committed. If, however, the evidence in this cause, as it is claimed by the counsel for the prisoner, should lead you to honest conviction of the prisoner’s insanity, at the time this act was done, it is your duty to give him the full benefit of such conclusion ; but, if it can be fairly and rationally reconciled with his sanity, though it may be unusual and startling and involves a degree of wickedness and depravity horrible to comtemplate, it is your duty to reconcile it and render your verdict accordingly.”
    The jury found the prisoner guilty of murder in the first degree.
    The prisoner took a writ of error, and assigned for error, amongst other things, the refusal of the court to sustain his challenges for cause, and the answer of the court to his fourth and fifth points.

      W. B. Moore and M. Swartzwelder (with whom was F. Iruty), for plaintiff in error.

      T. M. Baynes District Attorney, and B. M. Gribson (with whom was T. Mi Marshall), for Commonwealth, defendant in error.
   Chief Justice Agnew

delivered the opinion of the court, January 4th 1875.

The chief question in this case arises under the fifth point of the prisoner, which was negatived by the court below. It is this:—

5. If the jury have a reasonable doubt of the sanity of the prisoner at the time of the killing, they cannot convict.

The industry of the able counsel of the prisoner has collected and classified many cases on this point. While we think their weight accords with our own conclusions, we cannot help perceiving, in their number and variety, that the decision of the question should rest rather on a sound basis of principle than' on the conclusions of other courts. In order to apprehend the true force of the principles to be applied, we must keep in the foreground the facts of the case before any question of insanity can arise. Insanity is a defence. It presupposes the proof of the facts which constitute a legal crime, and is set up in avoidance of punishment. Keeping in mind, then, that an act of wilful and malicious killing has been proved and requires a verdict of murder, the prisoner, as a defence, avers that he was of unsound mind at the time of the killing, and incapable of controlling his will; and therefore that he is not legally responsible for his act. This is the precise view that the statute itself takes of the defence, in declaring the duty of the jury in respect to it. The 66th section of the Criminal Code of 31st of March 1860, taken from the Act of 1836, provides : “ In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and declare whether he was acquitted by them on the ground of such insanity.” Thus the verdict must find the fact of insanity, and that the acquittal is because the fact is so found. The law then provides for the proper custody of the insane prisoner. This being the provision of the statute, it is evident that a jury, before finding the fact of insanity specially, must be satisfied of it by the evidence. A reasonable doubt of the fact of insanity cannot, therefore, be a true basis of the finding of it as a fact and as a ground of acquittal and of legal custody. To doubt one’s sanity is not necessarily to be convinced of his insanity. It has been said in a nearly analogous case, “ As to whether a reasonable doubt shall establish the existence of a plea of self-defence, I take the law to be this: If there be a reasonable doubt that any offence has been committed by the prisoner, it operates to acquit. But if the evidence clearly establishes, the killing by the prisoner, purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burden then falls upon the prisoner, and not on the Commonwealth, to show that it was excusable as an act of self-defence. If, then, his extenuation is in doubt, he cannot be acquitted of all crime, but must be convicted of homicide in some one of its grades — manslaughter at least Commonwealth v. Drum, 8 P. F. Smith 22. Such also was the opinion of the late Chief Justice Lewis, a most excellent criminal law judge, when president of the Lancaster county Oyer and Terminer, in the trial of John Haggerty, in the year 1847 : Lewis’s U. S. Criminal Law, p. 402. He said, p. 406 : “ Thet jury will decide upon the degree of intoxication, if any existed, and upon the existence of insanity. The burden of proof of this defence rests upon the prisoner; the fact of killing under .circumstances of deliberation detailed.in this case being established, the insanity which furnishes a defence must be shown to have existed at the time the act was committed. The evidence must be such as satisfies the minds of the jury.” Thus, according to both statutory and judicial interpretation, the evidence to establish insanity as a defence, must be satisfactory, and not merely doubtful.

If we now analyze the subject, we shall find that this is the only safe conclusion for society, while it is just to the prisoner, Soundness of mind is the natural and normal condition of men, and is necessarily presumed, not only because the fact is generally so, but because a contrary presumption would be fatal to the interests of society'. No one can justly claim irresponsibility for his act contrary to the known nature of the race of which he is one. He must be treated and be adjudged to be a reasonable being until a fact so abnormal as a want of reason positively appears. It is, therefore, not unjust to him that he 'should be so conclusively presumed to be until the contrary is made to appear on his behalf. To be made so to appear to the tribunal determining the fact, the evidence of it must be satisfactory and not merely doubtful, as nothing less than satisfaction can determine a reasonable mind to believe a.fact contrary to the course of nature. It cannot,'therefore, be said to be cruel to the prisoner to hold him to the same responsibility for his act, as that to which all reasonable beings of his race are held, until the fact is positively proved that he is not reasonable. This statement derives additional force from the opinion of Chief Justice Gibson in the case of The Commonwealth v. Mashler, tried before him and Justices Bell and Coulter, in Philadelphia, and quoted from in Lewis’s U. S. C. L. 403-4. “ Insanity,” he says, “is mental or moral, the latter being sometimes called homicidal mania, and properly so. A man may be mad on all subjects, and then, though he may have a glimmering of reason, he is not a responsible agent. This is general insanity ; but if it be not so great in its extent or degree as to blind him to the nature and consequences of his moral duty, it is no defence to an accusation of crime. It must be so great as entirely to destroy his perception of right and wrong, and it is not until that perception is thus destroyed that he ceases to be responsible. It must amount to delusion or hallucination controlling his will, making the commission of the act, in his apprehension, a duty of overruling necessity.” Again: “Partial insanity is confined to a particular subject, being sane on every other. In that species of madness it is plain that he is a responsible agent if he were not instigated by his madness to perpetrate the act. He continues to be a legitimate subject of punishment, although he may be laboring under a moral obliquity of perception, as much so as if he were merely laboring under an obliquity of vision.” And again: “The law is that whether the insanity be general or partial, the degree of it must be so great as to have controlled the will of its subject.and to have taken from him the freedom of moral action.” Thus all the utterances of the Chief Justice on this subject are positive and emphatic, and allow no room for doubts, or merely negative expressions.

And if this reasoning were even less than conclusive, the safety of society would turn the scale. Merely doubtful evidence of insanity would fill the land with acquitted criminals. The moment a great crime would he committed, in the same instant, indeed often before, would preparation begin to lay ground to doubt the sanity of the perpetrator. The more enormous and horrible the crime, the less credible, by reason of its enormity, would be the evidence in support of it; and proportionately weak would be the required proof of insanity to acquit of it. Even now the humanity of the criminal law opens many doors of escape to the criminal. Then a wider door would be opened by the doubtful proof of insanity made still more open by the timidity of jurors, their loose opinions on the' subject of punishment, and their common error that the punishment is the consequence of their finding of the truth of the facts, instead of the consequence of the commission of the crime itself. The danger to society from acquittals on the ground of a doubtful insanity demands a strict rule. It requires that the minds of the triers should be satisfied of the fact of insanity. Finally, we think this point has been actually ruled by this court in the case of Lynch v. Commonwealth, decided at Pittsburg, in 1873. The prisoner’s second point was in these words: “ That if the jury hid a reasonable doubt as to the condition of the defendant’s mind at the time the act was done, he is entitled to the benefit of such doubt, and they cannot convict.” The court below said in- answer: “ The law of the state is that where the killing is admitted, and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify a jury in acquitting upon that ground.” This ruling was sustained. Opinion by Read, C. J. See Pitts-burg Legal Journal 14, 53.

The assignments of error to the overruling of the prisoner’s challenge of jurors for cause are not sustained. We think the court below followed the rulings in Staup v. Commonwealth, 24 P. F. Smith 458, and O’Mara and Irwin v. Commonwealth, 25 P. F. Smith 424. It is argued that this case is distinguishable on the ground that some of these jurors had formed their opinions in part on the testimony taken before the coroner, as read in the newspapers. But it must be noticed that these jurors did not entertain very positive or decided opinions, and they stated that they were the results of rumor and newspaper statements in part. All were clear that their opinions were so unfixed, they could hear and determine the case on the evidence given in the trial below, uninfluenced by their previous impressions. They did not appear to have prejudged the case, or to have fixed and decided opinions. That evidence would be required to change their first impressions, has but little weight. Such must always be the fact, even in the case of slight impressions or loose opinions. An impression once formed, necessarily exists until something else changes it. The inquiry, therefore, turns upon the character of the opinion. Is it a prejudgment of the case? Has it such fixedness and strength as will probably influence and control the juror’s verdict — or has it been formed upon the same evidence substantially as will be given upon the trial? Much weight, therefore, is to be given to the judgment of the court below, in whose presence the juror appears and by whom his manner and conduct, as well as his language, are scrutinized. In relation to the evidence given before the coroner, we may also remark that we do not regard it as having the same weight as the testimony given at the trial of the cause. We know the looseness with which these investigations are generally conducted, especially since the law permitting them to be had before justices of the peace, in lieu of the coroner. We are not now speaking of their legal effect, but of their weight in point of fact, as a basis of a public opinion in which a juror probably participates. In determining its weight in the case of a particular juror, regard will be had in the examination to the real nature and character of the testimony taken before the inquest. In the case of Alexander McClure, a juror, it is said his opinions were denominated by himself as “ conclusions,” and therefore stood upon a higher ground of exception than mere floating opinions. But a careful examination of his statement convinces us by the wrord “ conclusion,” he did not intend to convey the meaning of con elusiveness. It was only a loose use of the word in the sense of opinion, having no fixedness or conclusiveness in his mind.

In none of the assignments of error do we discover a sufficient ground of reversal of the judgment. The sentence of the Court of Oyer and Terminer is, therefore, affirmed, and it is ordered that the record of the case be remitted to the said court for execution of the sentence.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    Reynolds versus Barnes et al.

    1. Reynolds obtained judgment by default against Barnes and issued execution. On a rule to show cause, at the instance of Barnes, why the judgment should not be satisfied, the court heard depositions and made the rule absolute. Held to be error, the court had not power to make such order.
    2. Under the Act of March 27th 1852, the court had not such power, the record not showing that it had been paid by an execution on it.
    3. The power to direct a judgment to be satisfied is not a necessary attribute of a court, nor essential to the proper administration of justice.
    4. A court has not power summarily to strike off or vacate a judgment regularly entered.
    5. Satisfaction of a judgment is the act of the plaintiff; it has not been the practice of the courts of this state to direct the prothonotary to mark judgments satisfied.
    6. The court may direct an issue to try whether a judgment has been discharged, and if it be found that it has, may order a perpetual stay of execution ; and the defendant may compel the plaintiff to enter satisfaction, under the Act of April 13th 1791.
    7. Horner v. Hower, 3 Wright 126, followed.
    October 13th 1874.
    Before Agnew, C. J., Sears wood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1874, No. 199.
    This was a scire facias sur recognisance of bail in error, issued December 12th 1873, by Samuel Reynolds against William McKee, Joseph D. McGill, A. Inskeep, J. B. Poor and Thomas Barnes. The writ was served on all the defendants.
    The affidavit of the plaintiff’s claim was :—
    “ That at No. 196, November Term 1872 of this court, there was obtained against the defendants Poor and McKee, a verdict for the sum of $2065, and a judgment was entered on said verdict in favor of plaintiffs; that a writ of error was taken to the Supreme Court No. 121 to October and November Term 1873, by the said defendants, and a judgment of non pros, had against them; that the above-named defendants, McKee, McGill, Inskeep, Poor and Barnes, entered into a recognisance in the sum of $5000, conditioned that the said Poor and McKee should prosecute their writ of error with effect; or, in default, that they would pay the amount of the judgment and costs, and costs in said writ of error.
    “Affidavitfurther says that the defendants are justly and legally indebted to the plaintiff above named in the sum of $2065, with interest from April 30th 1873, and the costs, at No. 196, November Term 1872, and that the whole amount of debt, interest and costs, as aforesaid, remains due and unpaid.”
    On the 10th of January 1874, judgment was taken against the defendants by default sec. reg. for $5000. On the 13th of March, the judgment was assigned to R. D. Clark & Co.
    May 2d 1874, on affidavit of Thomas Barnes filed, rule to show cause why the above judgment as to Thomas Barnes should not be marked satisfied on payment of costs, and the fi. fa. issued thereon should not be set aside, and in the meantime proceedings stayed.
    The affidavit was as follows:—
    “ Thomas Barnes, being duly sworn, saith that a judgment was obtained against- him and others in this case, for $5000, on January 10th 1874, on a bond given for a writ of error in the Supreme Court, in No. 196, November Term 1872, Samuel Reynolds v. Poor and McKee, on which judgment had been entered April 29th 1878, for $2065; that a fi. fa., No. 265, November Term 1873, was issued on said original judgment, No. 196, November Term 1872, on which fi. fa. a levy was made October 25th-1873, on the personal property of defendant, at his lumber-yard; that said levy was on far more personal property than would pay the said judgment, debt, interest and costs in- full; that said property was advertised for sale for January 12th, A. D. 1874, and adjourned from time to time (and then by order of plaintiff’s attorney) until Wednesday, March 11th, A. d. 1874, at 2 o’clock p. M., when said fi. fa. was stayed by R. D. Clark & Co., assignees of the said judgment. This affiant states that by the staying of- said fi. fa., R. D. Clark & Co., the holders of said judgment, have released the defendant’s property to an amount more than sufficient to pay the said judgment, debt, interest and costs; and have, within a few days last past, issued a fi. fa. on judgment No. 373, January Term' 1874, and the sheriff has called on this affiant for the payment of the same. Your affiant offers to pay into court the costs in No. 373, January Term 1874, and on the fi. fa. issued thereon, and asks that said fi. fa. be set aside, and said judgment No. 373, January Term 1874, be satisfied on the record and affiant released from the same.”
    Depositions were taken in support of the rule.
    The depositions showed that an execution had been issued on the original judgment against Poor, his personal property levied on and advertised by the sheriff to be sold. An injunction was issued from the District Court of the United States, restraining the parties from proceeding on the execution, and after several adjournments of the sale, the execution was stayed by the attorney for the use-plaintiff in the execution.
    On the 22d of June 1874, Barnes’s rule to mark the judgment satisfied was made absolute.
    Reynolds took a writ of error to the order of the court making the rule absolute, and assigned the order for error.

      J. M. Acheson, for plaintiff in error.
    The court had no power to decree satisfaction of the judgment for matters outside the record, without ascertaining the facts by an issue: Horner v. Hower, 3 Wright 126. A court has not power to strike off a judgment regular on its face: King v. Brooks, 22 P. F. Smith 363; Breden v. Gilliland, 17 Id. 34. To charge the bail in error, it is not necessary to issue execution against the principal: Smith v. Ramsay, 6 S. & R. 573.

      H. Woods (with whom was S. Woods), for defendant in error.—
    A creditor who has in his power the means of payment and relinquishes it, releases the surety pro tanto: Cathcart’s Appeal, 1 Harris 420; Commonwealth v. Miller, 8 S. & R. 452; Talmage v. Burlingame, 9 Barr 23; Manufacturers’ & Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 335; Spangler v. Sheffer, 19 P. F. Smith 255; Neff’s Appeal, 9 W. & S. 36.
   Mr. Justice Williams

delivered the opinion of the court, January 4th 1875.

The depositions are no part of the record, and we cannot look into them for the purpose of ascertaining whether they show that the judgment as against Thomas Barnes was discharged or not. If the court had power to direct the judgment to be marked satisfied as to him, the presumption is that it was rightly exercised (Bain v. Funk, 11 P. F. Smith 185), and the order must be affirmed. Had the court then the power to make the order ? Under the Act of 13th April 1851, Pamph. L. 612, the courts of the city and county of Philadelphia are authorized to direct satisfaction to be entered on judgments obtained therein of more than ten years’ standing, upon being satisfied that they have been paid. And authority is given, by the Act of March 27th 1865, Pamph. L. 52, to any court of record of this Commonwealth to direct satisfaction to be entered on judgments obtained or be entered therein, if it shall appear by the production of the record that they have been fully paid, under and by virtue of an execution or executions issued thereon. It is plain that the judgment in this case is not embraced in the provisions of either of these acts, and it cannot be pretended that under them the court had power to direct it to be marked satisfied. If, then, no authority has been give0n by statute, has the court any common-law power to make such an order ? Such a power is not a necessary attribute of the court, nor is it essential to the proper administration of justice. It is well settled that a court has no power summarily to strike off or vacate a judgment that has been regularly entered; King v. Brooks, 22 P. F. Smith 363. Why, then, unless authorized by statute, should it have power to direct it to be satisfied? If a judgment has been paid, the plaintiff may be compelled to enter satisfaction thereof under the Act of 13th April 1791. The satisfaction of a judgment is properly the act of the plaintiff, and it has not been the practice of the courts of this state to direct judgments to be marked satisfied by the prothonotary. There is no case which decides that they have the power, and the fact that it is not their practice to make such orders leads directly to the conclusion that the power does not exist. But the question cannot be treated' as an open, one. It was virtually decided in Horner and McCann v. Hower, 3 Wright 126, that our courts have no power to strike from the docket a judgment regularly entered, or compel it to be satisfied; and-in that case the order of the court below, directing the judgment to be satisfied and discharged of record, was accordingly reversed. Undoubtedly the court has power to order an issue to try whether the judgment a-s against the defendant, Thomas Barnes, has been actually paid or discharged ; and if the jury find that it has, the oourt may order a perpetual stay of execution, and the defendant may compel the plaintiff to enter satisfaction under the Act of 1791. But the court had no power to direct judgment to be marked satisfied, and the order must therefore be reversed.

The order of June 22d 1874, making absolute the rule of May 2d 1874, is reversed, and the record is remitted.


author: Mr. Justice Sharswood

text:
    Ingles’s Estate.
    1. A testator directed that a monument, which he to some extent described, should he erected over his grave, “ the cost to he $5000, or thereabouts,” and directed his executors to employ Kerr to draw the plan of the monument. Held, that the intention of the testator was that Kerr should have a discretion up to $5000, not that it should necessarily cost that sum.
    2. Kerr having exercised his discretion in good faith in making a plan hy which the monument would cost but $3500, the court could not substitute its discretion for his.
    3. Williams’s Appeal, 23 P. R. Smith 249, cited.
    October 13th 1874.
    Before Agnew, C. J., Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Oourt of Allegheny county: Of October and November Term 1873, No. 178. In the estate of James Ingles, deceased.
    The testator died September 23d 1869, leaving a will dated April 21st 1868, by which amongst other things he directed as follows:—
    “Item: It is my wish and I do will and direct, that my executors aforesaid cause a monument of Italian marble, with a granite base twenty inches thick, to be erected over my remains; said monument to be in the Gothic order, and the cost thereof, with the granite base aforesaid, to be five thousand dollars, or thereabouts ; and I wish my said executors to employ Joseph Kerr, Esq., architect (if living at the time), to draw the plan of said monument, and Joseph Strudders, marble cutter (if living), to do the workmanship of it.

      <e Item: It is my wish, and I do will and direct, that my said burial lot be fenced in with a wrought or east iron railing, painted.
    “ Item: And I do further will and direct, that my executors pay or cause to be paid all my just debts and funeral expenses, and all the debts and expenses incident to my lot and monument aforesaid, and their own reasonable costs and charges for the seeing to the execution of this my will; and after the same shall be all fully paid and discharged, then all the rest and residue of my property of whatever kind, and wheresoever situate, I give and bequeath to my brother, William Ingles, his heirs, executors or administrators, for ever.”
    The executors settled their account which was confirmed June 16th 1871, and R. B. Parkinson, Esq., was appointed auditor to distribute the balance in their hands, which after payment of $899.75 to the residuary legatee, appeared to be $4801.15.
    At the first hearing before the auditor, Joseph W. Kerr, the architect named in the will, testified:—
    “ I am the architect designated in the will of James Ingles, deceased, for his tombstone or monument. I have seen a description of his grave lot, in which he is now buried, in Hill Dale Cemetery, on the north side of the Allegheny river; in my opinion, a suitable monument could be put on that lot at an expense of not above one thousand dollars — one that would be suitable for himself and the location ; fencing and suitable railing to enclose the lot for $500 more. A monument that would cost $5000 would be inappropriate and out of place in that lot; I intend to make a plan or design of a monument suitable to that lot as soon as convenient, as directed in said will. James Ingles in his lifetime was a-plain workingman — a journeyman stonecutter. The $1000 for building the monument would include payment for my services as architect.”
    The auditor reported, appropriating $2000 fbr the erection of the -monument, &c. After exceptions to his report it was by consent referred to him again.
    On the second hearing Joseph W. Kerr testified: “ I was sworn in this case before, and am the architect designated in the will of James Ingles, to prepare a plan of a monument. I have prepared a plan of a monument to be built according to the directions of the will, as I understand them. This design and plan marked is according to the directions of the will, the base to be of granite and the superstructure of Italian marble, and would be fifteen feet high, with a foot-stone three and a half feet high of the same materials. This is a plan of a monument such as I would have erected under and in pursuance of the directions of the will, and would have been, in my opinion, a full compliance with the terms of the will. It would have cost about thirty-five hundred dollars to build a monument according to this plan. I was well acquainted with. James Ingles in his lifetime, and he frequently told me that, at his death, he wished me to make a plan for his monument. I believe this to be just such a monument, as to masonry and workmanship, as James Ingles would have approved, if he had seen the specifications.”
    The auditor concluded his second report saying :—
    “ The auditor respectfully begs leave to submit a new schedule of distribution, appropriating the sum of $3500 for the erection of said monument, railing, and for the necessary expenses connected with the same.
    “The auditor respectfully suggests that as the architect chosen by the testator has submitted his plan, and testified that he believes the same to be in accordance with the wishes and intent of the testator, the auditor, under the circumstances, cannot appropriate an amount exceeding that estimated by the architect, for the erection, &c., of said monument.”
    He submitted a schedule in conformity with his report, awarding the balance $1265.40 after deducting the cost of the monument, to the residuary legatee.
    Exceptions were filed to the report by two sisters of the testator.
    It was confirmed by the court, “ and it is ordered the executors proceed and carry out the purposes of the will of testator in accordance with the auditor’s finding and report.”
    The exceptors appealed to the Supreme Court and assigned for error:
    1. The decree of the court.
    2. That the court erred in confirming and ordering the distribution and appropriation of said James Ingles’s estate according to auditor’s report in an ill advised and clearly illegal manner, and in violation of the distinct directions of decedent’s will.
    3. That the court erred in ordering and decreeing that the cost of decedent’s monument and burial lot fence should be reduced to a total of $3500 instead of $5000 or thereabouts, additional to cost of iron railing around burial lot, and expenses incident to the lot and monument aforesaid, as decedent directs in his will.
    4. That the court erred in ordering and decreeing that the appropriation for the erection of said monument, railing, and for the necessary expenses connected with the same, be $3500, when the evidence in any view of the law requires at least $3500 for monument alone, and from $500 to $1000 additional for railing and incidental expenses of lot, monument, &c.

      T. H. B. Patterson (with whom was T. M. Marshall), for appellants.

      5. II. Greyer, for appellee.
   Mr. Justice Sharswood

delivered the opinion of the court, November 2d 1874.

It is very plain that the testator in directing his executors to employ Joseph Kerr, architect (if living at the time) to draw the plan of the monument, which by his will he ordered to be erected over his remains, intended to intrust to that gentleman to determine the size and style of such monument, except that it was to be of Italian marble with a granite base twenty inches thick, and to be in the Gothic order. The architect has drawn a plan, and he testifies that he believes it to be just such a monument as to masonry and workmanship as the testator would have approved, if he had seen the specifications. It is objected, however, that according to-the estimate, it will only cost thirty-five hundred dollars, whereas the provision of the will is, that the “ cost thereof with the granite base aforesaid to be five thousand dollars or thereabouts.” The testator has not directed that it shall cost five thousand dollars or not less than that sum, but he evidently meant that the architect should have a discretion up to that amount or thereabouts. No question is made, but that Mr. Kerr has with good faith exercised the power and discretion thus vested in him. Where this is the ease, no pretence of an abuse of it shown, no court has the authority to interfere and control the exercise of it. It would be for the court to substitute its own discretion for that of the donee of the power: Williams’s Appeal, 23 P. F. Smith 249.

But the testator also directed that his burial lot be fenced in with a wrought or cast iron railing, painted. It seems from the evidence of Mr. Kerr, that an additional sum of five hundred dollars would be required for that purpose. But that evidence was given with reference to a different plan then in the mind of the architect, and the plan finally adopted by him may require a different style and more expensive railing.

It does not appear from Mr. Kerr’s evidence whether he included the cost of the railing in his estimated expense of the monument. A sufficient sum should be set aside and remain in the hands of the executors to meet all contingencies. The most careful estimates of architects and builders often fall far short of the actual cost. We deem it the true course, under all circumstances, that the sum of five thousand dollars should remain in the hands of the executors until the monument and surrounding railings are finished and paid for.

Decree reversed and record remitted that a decree be there made in conformity to this opinion. The costs of this appeal to be paid from the estate.


author: Mr. Justice Mercur

text:
    Simonds et al. versus Barton.
    1. If a verdict in an action of trespass, &e,, is for less than 40 shillings, in order to give plaintiff full costs under stat. 22 & 23 Oar. 2, c. 9, the judge’s certificate must be made before judgment.
    2. The statute extends only to actions of trespass q. o.f, and assault and battery.
    3. If there be a joint verdict for one trespass within the statute and one without it the plaintiff is entitled to full costs without a certificate.
    4. Where the trespass to the land is laid as the principal cause of action, and the asportavit of that which has been made personal property by severance, is laid as aggravation, full costs do not follow without a certificate ; where the asportavit and conversion of what has become personal by the act of the trespasser, is laid as a separate and distinct claim, plaintiff will have full costs without a certificate.
    5. A declaration was that defendants broke and entered plaintiff’s close, and “ took and carried away ten thousand bushels of sand, of which said island is partially composed, of the value of $500, and * * * greatly injured and despoiled said island * * * and converted and disposed of said sand to their own use.” The verdict was for $5. Held, that it carried costs without a certificate.
    October 16th 1874.
    Before Agnew, 0. J., Sharswood and Mercur, JJ.
    Error to the District Court of Allegheny eounty: Of October and November Term 1874, No. 250.
    This was an action of trespass q. o. brought to July Term 1'872, of the court below, by Edward B. Barton against John .■Simonds, George Simonds and James Simonds.
    The declaration was that the plaintiff was seised in fee of an island in the Allegheny river, and the defendants “ with force and arms ¡broke ’into and upon said close, and with flats and boats and other crafts, seized, took and carried away ten thousand bushels of sand (of which said ' island is partially composed) of the value of five hundred dollars, and also then and there greatly injured and despoiled said island and the free use and enjoyment thereof to the said plaintiff — and converted and disposed of said sand to their own use; and other wrongs to the said plaintiff then and there did,” &c.
    The defendants pleaded “Not Guilty.”
    The cause was tried, January 22d 1874, before White, J.
    The plaintiff gave evidence to establish his title to the locus in quo ; and also gave evidence that the defendants took sand from it.
    The defendants gave evidence to show that the title was not in the plaintiff, and that the sand, which they admitted they took, was not from his close.
    On the 24th of January there was a verdict for the plaintiff for $5. The defendants moved for a new trial, which on the 19th of June was overruled; on the 10th of July judgment was entered •on the verdict.

      On the 11th of August the defendant obtained a rule on plaintiff to show cause why upon the payment of the amount of the verdict with interest thereon from date of same, together with an amount of costs equal to the verdict, the judgment entered in the case and costs, so far as defendants are concerned, should not be satisfied. September 8th 1874, the rule was discharged, Judge White delivering this opinion:—
    “The plaintiff'brought trespass quare clausum fregit against defendants for entering his close, digging and carrying away sand, and obtained a verdict for five dollars. The defendants admitted they took sand from the river bed, but denied that where they took the sand was a part of plaintiff s island. They thus directly called in question the plaintiff’s title to the locus in quo, and this was the chief, and almost the only, question involved in the trial. Nearly all the testimony bore on this point. On this ground I think the plaintiff is entitled to full costs, and shall make the certificate rer quired by the statute of 22 and 23 Car. 2, on the back of the record.”
    The following endorsement was made on the record:—
    “ I hereby certify that the plaintiff’s title was the chief matter in controversy at the trial of this case.
    J. W. E. White, Judge at the trial. September 8th 1874.”
    The defendants took a writ of error and assigned for error, the discharging their rule and certifying on the record as above stated.

      J. Fitzimmons (with whom were R. S. Woods), for plaintiff in error,
    cited statute 22 and 23 Car. 2, cap. 9; Roberts’s Dig. 138; Brightly on Costs 22, 24, 30-33; Clegg v. Molyneux, Douglass 750; Butler v. Cozens, 11 Modern 198; Johnson v. Stanton, 2 Barn. & Cress. 621.

      I. Barton, for defendant in error,
    cited Williams v. Glenn, 2 Penna. R. 137.
   Mr. Justice Mercur

delivered the opinion of the court, November 21st 1874.

This was an action of trespass. The jury rendered a verdict in favor of the plaintiff below for five dollars. Seven and a half months thereafter the judge certified,that the freehold or title of the land mentioned in the declaration was chiefly in question. This was more than three months after the motion for a new trial had been overruled, and nearly two months after judgment had actually been entered on the verdict. Was the certificate in time to make it effectual ?

When the damages found by the jury are under the value of forty shillings ($5.33§-) and the statute of 22 & 23 Car. 2 requires the certificate of the judge to give a plaintiff full costs, the statute declares it shall be “ at the trial of the cause. ” This language, however, has not received a literal construction. It may be made at anytime between verdict and final judgment: 11 Mod. 198;' Brightly on Costs 24. The same construction has been given to the statute of 8 & 9 Will. 3, c. 11, sect. 4, in which the identical language is used: 2 B. & C. 58; 4 Dow. & Ryl. 147. Final judgment then being the latest time at which the certificate can be made, it was too late in this case to be valid.

The remaining question is, Was any certificate necessary to carry full costs ?

The language of the statute extends it to “ all actions of trespass, assault and battery and other personal actions. ” It has, however, uniformly been held from an early day, that it extended to no. actions save trespass quare clausum fregit and assault and battery: 3 Keble 31, 389 ; Ven v. Phillips, 1 Salkeld 208; Milbourne v. Read, Trin. 17 & 18 Geo. 2, Barnes 108; Batchelor v. Bigg, 3 Wils. 319. As there could be no certificate that an assault and battery was sufficiently proved or that the title to land was chiefly in question in other personal actions, such as debt, assumpsit, trover, trespass for taking or injuring plaintiff’s goods, trespass for beating his servant per quod servitium amisit, the plaintiff was in these actions entitled to full costs although he recovered less than forty shillings : Milbourne v. Read, supra. So, if there be a joint verdict for one trespass within the statute, and another out of it, the plaintiff is entitled to full costs. Hence, although trespass quare clausum fregit is within the statute, yet if the plaintiff go on and also declare for cutting and carrying away his corn, it is out of the statute, unless the defendant be acquitted thereof: Yen v. Phillips, supra. So if, besides declaring for breaking and entering his close and pulling up the hedge, the, plaintiff further declares that the defendant has carried it away, and the jury found him guilty of the latter as well as the former, the plaintiff is entitled to full costs without a certificate: Milbourne v. Read, supra.

This rule was somewhat modified in Clegg et al. v. Molyneux et al., Doug. 750. It was there held that if the trespass is laid to have been committed on the land by digging turf, peat, heath, soil, &c., and by the asportation and conversion thereof, as part of the same act, and there be a general verdict in favor of the plaintiff for less than forty shillings, he was not entitled to any more costs than damages. The court said: “ What has been called an asportavit in this declaration, is a mode, a qualification of the injury done to the land.”

In Brightly on Costs 33,6 citing Hull on Costs 80, it is said a plaintiff shall have full costs without a certificate, if he .obtain a general verdict, for the smallest damages, on a count which contains a trespass on land, and also an injury to personal property, provided such injury to or trespass on the personal property be laid in the declaration as a substantive and independent fact, and not merely a circumstance in aggravation of damages or as a consequence of the trespass on the land.

In Hinds v. Knox, 4 S. & R. 417, the action was trespass quarei clausum fregit. The verdict was for “six cents damages and all .costs of suit.” There was no certificate. Under this special finding of the jury, it was held the plaintiff was entitled to full costs.

In Williams v. Glenn, 2 Penna. R. 137, the plaintiff declared “ that the defendant broke and entered his close, took and carried away two hundred pounds of flour.” The case was referred to arbitrators, who reported five dollars damages in favor of the plaintiff. The court below entered judgment for full costs. This court affirmed the judgment.

In Clegg v. Molyneux, supra, Lord Mansfield said: “ There is a puzzle and perplexity in the cases on this part of the statute and a jumble in the reports.” These inconsistencies and perplexities are not reconciled or removed in Williams v. Glenn, supra. The court is there made to say: “ The Act of 22 & 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. In support of this view, several English cases are cited; but all of these cakes in fact declare the law to be directly the reverse.

We shall not attempt to reconcile the cases where there has been a general finding of less than forty shillings damages on a declaration charging a trespass on both land and personal property. We think, however, the true rule and correct line of separation to be this, to wit: Where the trespass to the land or freehold is laid as the principal cause of action, and the asportavit of that which has been made personal property by severance, is laid in aggravation of the trespass, full costs do not follow without the certificate. Where, on the other hand, the asportavit and conversion of that which has become personal property by the act of the trespasser is laid as a separate and distinct claim, although the plaintiff goes on to charge a trespass on the land, he may netertheless recover full costs without the certificate.

Tried by this rule, how stands this case ?

The declaration charges that the defendants below broke and entered a certain island and close of the plaintiff, and that they seized, took and carried away ten thousand bushels of sand (of which the island was partially composed), of the value of $500, and converted and disposed of the same to their own use; and that they also injured and despoiled the island, &c.

Here, then, a separate and distinct claim is laid for the asportavit and conversion of the sand which is averred to be of great value. It is a well-known article of merchandise. Almost its entire value is produced by its severance from the freehold. So long as it formed a part of the bar extending from the island, it added no value to the use and occupation of the island. The removal and conversion of the sand was not in aggravation of the trespass to the land; but in itself constituted the main ground of action, and the substantial claim for damages. Hence we conclude the court was correct in entering judgment for full costs.

Judgment affirmed.


author: Per Curiam.

text:
    Sterrett et al. versus Howarth et al.
    1. In a direct proceeding to set aside a foreign attachment, the court will quash or reverse where the sheriff has omitted to return a service on a person in possession of the land attached, or to make^ publication if the possession be vacant.
    2. In a collateral proceeding to recover the land sold by the sheriff before the attachment has been set aside or reversed, such omission is but an irregularity and will not render the judgment and executions in the attachment absolutely void.
    3. Such judgment and executions, though voidable, will support the sheriff’s sale.
    October 19th. 1874.
    Before Agnew, C. J., Sharswood, Williams and Merour, JJ.
    Error'to the Court of Common Pleas of Venango county: Of October and November Term 1872, No. 153.
    This was an action of ejectment by David Sterrett and James Vanderlin against Thomas S. Howarth and William Howarth, for a tract of land in Cornplant.er township, commenced May 18th 1871.
    Both parties claimed through Otto Ludovice, who owned the land in April 1866.
    The plaintiffs’ title was as follows:—
    To April Term 1866, Thomas S. Howarth issued a foreign attachment against Ludovice and others, partners.
    The sheriff returned amongst other things, that he had attached the premises in dispute “and summoned P. Lent by making known contents to him by giving a true copy of the same.” On the 30th of November 1866, on motion of plaintiffs’ attorney, judgment was entered for default of appearanoe. After a rule on prothonotary to liquidate the damages and proof of notice of the rule and affidavit of the claim, the prothonotary, on the 30th of March 1867, assessed the damages at $1154.33.
    To November Term 1867 a fi. fa. was issued and returned' “ Nulla bona.” On the 28th of October 1868, an alias fi. fa. was issued, under which the premises in dispute were levied on and condemned and afterwards sold under a venditioni to S. P. McCalmont and sheriff’s deed to him acknowledged January 28th 1869, McCalmont conveyed to F. S. Howarth, one of the defendants, February 9th 1869.
    The defendant’s title was as follows :—
    On the 30th of March 1866, James Vanderlin commenced an action of assumpsit by foreign attachment against Otto Ludovice and Rudolph Ludovice; an appearance was entered for defendants and an affidavit of defence filed. On trial the plaintiffs recovered a verdict for $6783.34; judgment was entered on the verdict January 14th 1871. Under this judgment the land in dispute was sold by the sheriff to David Sterrett and the deed acknowledged April 27th 1871. On the 17th of May Sterrett conveyed an undivided half to Vanderlin.
    The plaintiffs’ points were :— ‘
    1. In proceedings in foreign attachment the act relating thereto must be strictly pursued, and it being one of the requisites of the act that in case of attachment levied on lands the sheriff shall leave a copy of the writ with the tenant or other person in, actual possession, holding under the defendant, and to summon such person as garnishee, and if no person is in actual possession, to publish the writ six weeks; neither of which having been done in this case the attachment and all subsequent proceedings thereunder are void, and such a failure to attach the land as the law directs is not cured by the acknowledgment of the sheriff’s deed in sale under said attachment.
    2. If any person be summoned as garnishee the act requires a scire facias to he issued against such garnishee and judgment thereon before execution can issue against such defendant, and no such scire facias having been issued in this case, the execution and sale thereunder are void.
    The defendants’ points were :—
    1. The judgment Howarth v. Ludovice, under which sale was made and defendant claims title, is not a void judgment, but only voidable.
    2. Said judgment could be avoided only by the defendant; that the plaintiff being a stranger to the judgment, could not impeach it for any irregularity however gross.
    3. The sale to the defendant having been made upon an execution issued upon a judgment subsisting and unappealed from, passed a good title to the purchaser, and the verdict must be for the defendants.
    The court (Jenks, P. J., of the 18th district) charged :—
    “We answer the 1st and 2d points of plaintiffs in the negative, and answer all the points submitted by the defendant in the affirmative.”
    The verdict was for the defendants.
    The plaintiffs removed the record to the Supreme Court, and assigned for error, the answers to the points.

      S. O. T. Dodd (with whom was I. Ash), for plaintiffs in error,
    referred to the Foreign Attachment Act, June 13th 1836, sects. 49, 65, 66, 68, 69, Pamph. L. 580, 1 Br. Purd. 718, 721, 722, pl. 9, 29, 30, 32, 33. The mode prescribed by the act must be strictly pursued: Hayes v. Gillespie, 11 Casey 155; Lambert v. Challis, Id. 156 n.; Pennsylvania Railroad Co. v. Pennock, 1 P. F. Smith 244; Jenks v. Wright, 11 Id. 410; if not, the proceeding will be void, and may be attacked collaterally: Hayward v. Collins, 5 Amer. Law Times Rep. 235; McKee v. McKee, 2 Harris 231. If there be want of authority to sell, the defect is not cured by acknowledgment of 'sheriff’s deed: St. Bartholomew’s Church v. Wood, 11 P. F. Smith 99.

      0. Hasbrouch (with whom were MeQalmont § Osborne), for defendants in error.
    No one but the defendant in a judgment can take advantage of irregularities in a judgment, which renders it voidable only: Martin v. Rex, 6 S. & R. 296; Hazelett v. Ford, 10 Watts 101; Sloan v. McKinstry, 6 Harris 121; Paine v. Morehead, 15 Ohio 435; Voorhees v. The Bank of the United States, 10 Peters 449; Ritter v. Brendlinger, 8 P. F. Smith 70. The plaintiffs in this suit, being strangers to the judgment, could not impeach it for any irregularity: Campbell v. Kent, 3 Penna. R. 78 ; Hauer’s Appeal, 5 W. & S. 474; Dickerson & Haven’s Appeal, 7 Barr 257; Watson v. Willard, 9 Id. 92; Buehler v. Buffington, 7 Wright 293; Thompson’s Appeal, 7 P. F. Smith 178; Ritter v. Brendlinger, 8 Id. 70; Wilkinson’s Appeal, 15 Id. 189. As to defendant’s 3d point: Act of 1705, sect. 1, 1 Smith L. 32, 1 Br. Purd. 651, pl. 84; Feger v. Kroh, 6 Watts 294, and Feger v. Keefer, Id. 297.
   Judgment was entered in the Supreme Court, October 26th 1874.

Per Curiam.

In a direct proceeding to set aside a foreign attachment, the court will quash or reverse when the sheriff has omitted to return a service on a person in possession of the land attached, or to make publication according to law, if the possession be vacant. But in a collateral proceeding to recover the land, where the land has been sold at sheriff’s sale before the attachment has been set aside or reversed, the omission of the sheriff to state that the person on whom he has served the writ in connection with the land, holds the land under the defendant in the writ, is but an irregularity, which will not render the judgment and executions absolutely void. Though voidable, they will support the sheriff’s sale. There is not such an absolute want of jurisdiction in the court as will render the whole proceeding a mere nullity.

Judgment affirmed.