text:
    EBENEZER KERR against GEORGE STIFFEY et als.
    K. obtained a judgment against I. which bound his equitable'title to a tract of land purchased from, and held by articles of agreement with G. fi. subsequently obtained a judgment against 1., in an action of covenant to recover a balance of the purchase money, upon -which the land was levied and sold by the sheriff to G., te whose judgment the purchase money was applied by .a judgment of the Court, in a feigned issue between K. and G. to try the right thereto. K. afterwards issued an execution upon his judgment and levied and sold the same land; he became the purchaser, and brought an ejectment against G. to recover the land, after having tendered to him the balance of the purchase-money due by I. on the articles, Held: That K. was not entitled to recover.
    EkkoR to the Common Pleas of Westmoreland county.
    This was an action of ejectment for 142 acres of land, in which the plaintiff in error was the plaintiff below.
    A special verdict was agreed upon between the parties. The following facts, therein contained, are alone material.
    On the 4th May, 1820, Ebenezer Kerr, the plaintiff, obtained a judgment against Joseph Irvine for $796., which was regularly revived until February Term, 1826, to which a Ji. fa. issued on the said judgment, which was levied on the land in dispute. To May Term, 1826, a vend, expos, issued, upon which the land was sold to Ebenezer Kerr for $710, to whom a deed was made bj the sheriff.

      John Gallaher, who was the landlord of the defendants,
    was the owner of the land; he, on the 17th July, 1816, entered into articles of agreement with Joseph Irvine, for the sale of the land to him, upon the following terms: — purchase-money, $2200, $300 of which was to be paid in band, on the execution of the article: $700 on the 1st May, 1817; and the residue in annual payments of $200 each. The hand money, the amount payable 1st May, 1817, and the first annual payment of $280, due 1st May, 181S, were paid by Irvine. In 1820, two annual payments being due upon the,article, Gallaher brought an action of covenant thereon against Irvine, and on the 8th October, 1821, obtained a judgment for $477 50, being the balance due on the contract, at tbs time suit was brought. A fi.fa. was issued on this judgment, to November Term, 1821, which was levied on the land in dispute. A vend, expos, issued to February Term, 1822, upon which the land was sold to John Gallaher for $705, who on the 19th February, 1822, obtained the sheriff’s deed therefor.
    A dispute arose between Gallaher and Ebenezer Kerr, concerning the appropriation of the purchase-money arising from this sale: a case was stated for the opinion of the Court, in.which judgment was rendered in favor of Gallaher. A writ of error was taken out by Kerr, and the judgment was affirmed by the Supreme Court.

    Before this ejectment was brought, Kerr tendered to Gallaher tire balance of the purchase-money due upon the articles of agreement, which he was willing to pay, upón judgment being rendered in his favor.
    The Court (Young, president) entered a judgment for tire defendants.

      A. W. Foster for plaintiff in error.

      Kerr having the first lien against the estate of Irvine, was entitled to the proceeds of the sale upon the judgment of Gallaher, just as if'a stranger, and not Gallaher, had become the purchaser. Gallaher, therefore, having paid no money of his own, but it being money which rightly belonged to Kerr, which was the consideration of the sheriff’s deed to Gallaher, he thereby became a trustee, and held for Kerr. And Kerr’s offer to pay the balance of the purchase-money, due on the article of agreement, divested Gallaher of all equity, and gave to him the legal right to recover the possession.

      J. E. Alexander for defendant in error.
    At the first sheriff’s sale Gallaher purchased the equitable title pf Irvine, by which he became vested with the equitable estate of the vendee, and by operation of law the contract was thereby fully executed. After this sale, nothing was left in Irvine, that could, be levied and sold on Kerr’s judgment. Kerr was, perhaps, entitled to the proceeds of that sale, to be applied to his judgment; but that cannot now be inquired into, as there is a final judgment on the subject. Gurney v. Alexander, 14 Serg. & Rawle, 257. Gilmore v. Commonwealth, 17 Serg. & Rawle, 277.
    The equity of Irvine is vested in Gallaher, and the money disposed of. This ends all idea of trust, and settles the controversy. McGrew v. McLanahan, 1 Penn. Rep. 44.

        Note. — The judgment was not affirmed by the Supreme Court. The facts were «o imperfectly stated, and the case so irregularly brought up, that the Court decided,, that it was not the subject of a writ of error. — See 8 Serg. & Rawle, 528.

   The opinion of the Court was delivered by

Huston, J.

John Gallaher owned the land in question; and contracted to sell the same to Joseph Irvine, who paid more, than half the purchase-money. 4th of May, 1820, Ebenezer Kerr obtained a judgment against Joseph Irvine, which bound Irvine’s equitable interest in this land. The legal title was in Gallaher, and a right to the residue of the purchase money, before he could be compelled to part with it. John Gallaher brought suit to recover some instalments due, and in October, 1821, recovered judgment: he took out a Ji. fa. to November, 1821, and it was ievied on the land in question. A ven. expos, was issued to February, 1822, and the land was sold, and purchased by John Gal~ laher. If the land has been sold on Kerr’s judgment, and bought by Kerr or any stranger, the purchaser would have bought only Irvine’s equitable interest, and must have paid the balance due to Gallaher, in order to obtain the title. When a vendor on articles sells the land of the vendee for a balance of purchase-money, perhaps the purchaser would take both the legal and equitable title; for he who has the legal title having elected to proceed by judgment and execution and to sell and, could not, perhaps, af-terwards say, there was remaining in himself an interest not sold. But as that case is not before us, I give no opinion, about it; for here Gallaher, the vendor, became the purchaser. Irvine had an equitable interest: that was sold: the legal title and remaining equitable interest, was then in Gallaher; and when he purchased all the interest which Irvine had, the whole estate, legal and equitable, became united in Gallaher, and there was no interest remaining in Irvine.

Clearly, Kerr was entitled to the money arising from the first sale, and claimed it: but he lost it by not pursuing the right mode to obtain it. But we cannot do wrong, and unsettle decisions and fixed principles on that account. To put it on the most favorable footing for Kerr, Irvine had only an equitable right, that could be levied on and sold, and the purchaser would stand in Irvine’s place, and must pay the residue of the purchase-money into Court. When he had done this, and got his deed, he had nothing to do with the application of the money. If the money was misapplied, or lost in the sherifPs hands, it did not affect the right of the purchaser. If a stranger had purchased, and the money had gone to Gallaher, so much the better for him; it would have extinguished the legal title: if it had gone to Kerr, the legal title might have been out against him; but still he had Irvine’s interest and all Irvine’s interest. Irvine had neither legal nor equitable title left in him; there was no right or title on which to levy the second execution: nothing to sell, and the purchaser got nothing, and can recoyer nothing.

Judgment affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    GEORGE HAMILL against ROBERT PURVIS.
    Two partners having a judgment, one of the partners assigned it to a third person, and guaranteed the payment thereof. Held: That an action could not he supported against the firm, on such guaranty, without proof that both partners assented to the making of it; or knowing it, did not dissent.
    Writ of error to the Common Pleas of Westmoreland county.
    This was an action brought by George Hamill against William Purvis and Robert Purvis: William not being a resident of the county, the writ was served on Robert alone.
    The plaintiff stated his cause of action to be, that on the 6th February, 1819, at Cumberland county, William Purvis exiá Robert Purvis obtained a judgment against Thomas Coffey and John Coffey for $756 65 debt, besides costs. That on the 17th .T.une, 1819, the said William and Robert, by writing, by them duly executed, did, for value received, assign over their right and interest in that judgment to George Hamill, and did thereby guaranty the payment of the same. That Hamill endeavoured to recover the money from the Coffeys, but could not, as they were unable to pay — that Purvis therefore became liable to pay, &c.
    The plaintiff, to support his right of action, offered in evidence a number of depositions, the substance of the evidence contained in all which was this:

      William Purvis and Robert Purvis owned a farm and distillery in Cumberland county: they were in partnership; William was the farmer, and Robert the distiller. They sold their property to Thomas and John Coffey, and subsequently obtained a judgment against them, on the docket of a justice of the peace, for $756 65. This judgment was assigned to George Hamill, the plaintiff, by Robert Purvis, by the following indorsement made upon the back of the transcript of the said judgment, which was filed in the prothonotary’s office, for the purpose of creating a lien upon the real estate of the defendants, Thomas and John Coffey.

    “I do, for value received, assign over all our right and interest of the 'within judgment to Geo. Hamill, or assigns, and guarantee the payment. June 17, 1819.” .
    . “Wm. SfRob’t. Purvis

      Ia consequence of the inability of Thomas and John Coffey? the judgment could not be collected' from them.
    This evidence was objected to by the defendant, on the ground, that if true, it did not entitle the plaintiff to recover ; no authority having been shown by William to Robert Purvis to execute such a guaranty, which was not in the course of partnership business.
    The Court (Young, President,) being of this opinion, the evidence was rejected, and a bill of exceptions Sealed.

      J. B. Mexander for plaintiff in error.
    The question is, whether one partner, on transferring a judgment, which the partnership held against a person, can guaranty the payment of that judgment.-
    The rule is, that over the partnership effects each partner has-equal authority with all the partners, in the-usual course of business. Ghit. on bills, 41-.. The benefit of a guaranty will run-along with the interest in a bond, to whomsoever it may be transferred. Reed v.. Garvin, 1-2 Serg. & Rawle, 100; which seems to establish the doctrine, that the effect is the same, as that of an indorsement on-,a bill or. promissory note. An agreement by one partner, to refer the partnership accounts, is binding on his co-partner. Taylor v. Coryell, 12 Serg. & Rawls, 248. One partner may enter into a composition for a debt due the firm, and may release- it. Bruen v. Marquand,- 17 Johns. R. 62. One partner may seal a bond for the other. Mackay v. Bloodgood, 9: Johns. R. 286. One may execute, under seal, a bill of sale for the other. Ball v. Dunsterville, 4 Dun. & East. 313. In a partnership between a conveyancer and scrivener, one was held accountable for the receipt of the other of money to be loaned on mortgage. Willett'v. Chambers, Cowper, 814. One partner may guaranty for the debt of a third person, in the name of the firm. Ex parte Gardom 15, Vez. 286.
    An indorsement in the name of the firm, by one of the partners, is good, and ought to be declared on in the name of the firm. Manhattan & Co. v. Ledyard, 1 Caines, 192. If one of the partners sign in the name of the firm, the presumption is, that such is the name of the firm, and that it was a partnership transaction. Drake v.Elwyn,l- Caines, 184. The act of one partner shall be presumed to be the act of the other, unless he shows a disclaimer or refusal to be concerned'. Salk. 292. 4 Ba. Jib. 667. Notes to Green v. Beals. 2 Caines, 255. In every thing which relates to their partnership dealings, one partner is the agent of the other-. Gerard v. Basse. I Dali. 119. See also Tyson v.
      '{Pollock, 1 Penn. Rep. 375. And that there may be a partner■ship in buying and selling land Campbell-v. Golhoun, 1 Penn. Rep. 140.
    This was a partnership transaction, so far as all the circum-■ces attending it being a joint concern, could make it such.

      Armstrong and A. W. Foster for defendant in error.
    The defendants may have been partners in the business of distilling and farming, but the sale of their farm was necessarily a dissolution of partnership. The assignment of this judgment and •guaranty was not the business of the partnership, and therefore it is not binding on the firm. Sutton v. Irvin, 12 Serg. & jRaíale, 13.

      Alexander in reply.
    Cited Fell on guaranty, 103, 149, 151»
   The opinion of the Court was delivered by

Smith, J.

There was no proof offered, to show that Robert .Purvis had any authority from William Purvis to sign the partnership name to the guaranty in question, nor any evidence to show a subsequent recognition of the same by William Purvis. In Sutton and McNickle v. Irwin and another, 12 Serg. & Rawle, 15, the rule applicable to partnerships, is said to be, that in relation to their joint concerns, one of the partners may bind the other. His authority, to the other partner, however, has its limitation, and he cannot enter into any engagement to bind the firm, which is unconnected with the partnership; for the law will intend, that when one deals with a partner, in a matter not within the compass of the partnership, he does this, in his .private and individual capacity. Indeed, an engagement by one partner, to bind the partnership credit, in- a transaction unconnected with, and not fairly and reasonably within, the scope of the partnership, is, as to the other partner, fraudulent and void.

Nor does it appear, in the case before us, that it was usual for William and Robert Purvis, in the course of their business, to give such guaranties. The true criterion, whether the act of one partner makes the other responsible, seems to be, whether the aót was or was not done according to the usual course of business. 1 Salk. 126, 292. As then the plaintiff did not prove, nor offer to prove the assent, or authority, or recognition of William Purvis, that Robert Purvis should sign the partnership name or firm to the guaranty, which it was incumbent on him to ■prove ; nor that it was in the usual course of their business, i?o5-ert could not bind his partner William; so that the evidence, in ¡our opinion, as offered, would not have been made out, or did not mate out, the plaintiff’s case, it was therefore correctly rejected.

HustoN, J, — Dissented.

Judgment affirmed.


author: Huston, J.

text:
    WILLIAM McMASTERS against JAMES BELL.
    IN ERROR.
    When a person has a right of entry into lands, and does enter, it will always be taken, that he entered under that right, and not as a trespasser.
    If a man enters on land as guardian in right of his wife, by which his possession would not be, at first, adverse; it would require some decisive act or declaration to make it so, to entitle him to hold by the statute of limitations.
    Whether a possession is adverse or otherwise, is a fact for the jury.
    Error to the Common Pleas of Westmoreland county.
    This was an action of ejectment, to recover a tract of land, in which the plaintiff in error was the plaintiff below.
    This case covered a good deal of paper, as presented to this Court. There was much testimony, and that somewhat different, though not exactly contradictory. It presented this case.

      Robert Bell was the owner of the land in question by improvement in the year 1777 or ’78, he had a house and 20 or 30 acres of land cleared, and fled from it, when every body else fled, on account of depredations by the Indians. In 1779 or 1780 he died, leaving a widow and children ; as to the age of those children there was some uncertainty. In a few years William McMasters married the widow, and had by her one child, who died many years ago. About 1787 McMasters and the family moved to the land in question, then in a bad state. The old cabin hau been repaired by one Jamison, who however did not claim it, and had gone away. The sons of Bell worked on the land with their step-father; but as they grew up, went down the river, except John the defendant. The daughters lived there until they married. About 1800 anew house of two stories, with a stone chimney was built, an orchard was then on the land, and 50 or 60 acres cleared. About that time John Bell married and lived 2 or 3 years no the land,in the old cabin; but on what terms or agreement did not appear. He moved off and lived at a tavern he had rented until 1809: at that time John Bell returned and lived in the kitchen or small house adjoining to McMasters’ large house, and worked the fields for two years with McMasters’ horses and ploughs; and gave him one-third of the crop. Bell continued in the house; but
      C. Smith, who had married one of Bell’s sisters, cultivated the land for the next 2 years as Bell had done. In 1813 Smith went away, and John Bell and McMasters each worked part of the land, and quarrelled about it till 1823 or 4.
    About that time Mrs. McMasters, who was old and frail, went to live with one of her daughters; and about a year after old Mc-Masters went to live with a nephew of his. His wife died soon after: and about a year after that McMasters brought this suit against John Bell.

    Some witnesses said they understood McMasters went orí it in his own right, claiming it as his own, and that they never heard any thing against his claim: but no person proved that he made any express declaration on the subject. He had it taxed in his own name; and the fact that all the children of Robert Bell moved away, as they severally grew up, was relied on; and the length of time.
    On the other side it was insisted, that the mother, being the natural guardian, McMasters entered in her right: that no one, until shortly before this suit, ever heard him claim it as his own: that he permitted John Bell to hold part in 1800-1 &2, and again from 1813 till 1827- — and it was also proved by one witness, that McMasters told him 10 or 12 years ago that he had bought the shares of some of Robert Bell’s eldest children.- A fact much relied on by the defendants.
    Several questions were propounded by.the plaintiff’s counsel to the Court, upon which they were requested to charge the jury.

      Shippen, president,, left the cause with the jury as a matter of fact, with this general instruction: that if they believed that the plaintiff .took possession of the land as his own, and held it adversely to the claim of the heirs of Bell, he was entitled to recover: but if he obtained the possession as the husband of Bell’s widow, who was the natural guardian of his children, and who was also entitled to dower;.and held it in that capacity; it was not such an adverse holding, as would give him a title by the statute of limitations.

      Coulter and Jl. W. Foster for plaintiff in error
    Contended, that although the original intention of the plaintiff may have been, to enter and hold possession for the heirs of Bell, yet His subsequent acts of ownership, such as building houses, and barns, and clearing land, were such decisive acts of ownership as to amount to a notorious claim in his own right; and this too with the knowledge and in the presence of John Bell, under whom the present defendant claims, as heir at law. It would be a fraud to permit the son of John Bell to recover this land, his father having given no notice to McMastersoihis claim, when these improvements were going on. McMasters may have been considered, at first, as a trustee: but the nature of the trust, if any, was such that ex necessitate rei, it must have ended in a less time than forty years. Pi-pherv. Lodge, 16 Serg. &Rawle, 214. Waltcer v. Walker, lb. 379.
    The fact of Bell having leased a part of the land from McMas-ters, and rendered a certain share of the produce, established the relation of landlord and tenant; and was conclusive evidence, that Bell did not claim title, and that McMasters did.

      J. B. Alexander for defendant in error.
    To entitle the plaintiff to recover, he must shew a right of possession as well as of property. The plaintiff has exhibited no title, no right of property, nothing but a possession, as the husband of a tenant in dower, who was also the guardian of minor children, to whom the only title had descended; this tenant in dower, and guardian in soclcage being dead, McMasters quit the possession, which he has now no right to recover.
    The ■ presumption of law is, that the original possession of the plaintiff, and continuance of it, was jure uxoris. Osburn v. Car-den, Plate. 293. 1 Bac. Jib. 476, 498. Co. Lit. 351. 2 Salk. 422. 3 Cruise, 411. Jldams on ejec. 50.
    The widow of Bell, being entitled to dower in the land claimed under his settlement, as the law stood at the time of his death, (Workman v., Gillespie, 3 Yeates, 571,) and she and her husband having entered and kept possession peaceably, will be considered as trustees for the heirs. Pipher v. Lodge, 16 Serg. & Ra.wle, 214.
    If the intention of McMasters when he entered on the land was equivocal, it must be considered as according to the existing right. .Kincaird v. Scott, 12 Johns. Rep. 368. Smith v. Burtis,. 9 Johns. Rep. 180.
    If a man enters without any title at-all, he cannot be presumed to enter .adversely, but the presumption is the other way. The Soc. for prop, the Gos. v. The Town of Pawlet, 4 Peters’ IL S, Rep. 480.
    In Jackson v. Sears, IQ Johns. Rep. 442, where there was some testimony of an adverse claim to the estate of the mother, and the son accepted a deed from her, which was invalid; that was held to remove the effect of the statute of limitations, by destroying the idea of adverse entry. So in this case, the pretence of McMasters, that he had purchased the shares of the minor children of Bell, who could not convey, defeats the idea of an adverse entry and holding.
    The fact of Bell having cropped the land while McMasters was in possession, is of no weight; for he was entitled to part of the proceeds in right of his wife; and in addition to this, he furnished the horses and implements with which the grain was raised.
   The opinion of the Court was delivered by

Huston, J.

The judge below gave an elaborate charge ; ana taking it into consideration, we are of opinion, there is no error in it. Where a person has a right-of entry into lands, and does enter, it will always be taken that he entered under that right, and not as a trespasser. Here the mother, as the natural guardian, and her husband exercising that right, might well enter; and in the absence of all proof as to his intention, will be taken to have so entered. 1 Plow. 293. Co. Lit 551. 3 Cruise. Dig. 41. Besides he was entitled to the dower of his wife.

How McMasters entered, and whether during all the time, or What part of it, he claimed the land as his own, and adversely to the heirs of Bell, was fully left to the jury: — and as favorably for the plaintiff as he had a right to require.

If he entered as guardian in right of his wife, and his possession was not at first adverse, it would require some decisive act or declaration to make it so: and whether there was any such, was fairly left to the jury.

Neither side shewed any office title. If Robert Bell had taken a warrant and had a survey, the presumption of abandonment would have been less, and the presumption that the plaintiff had entered in opposition to a legal title, would have been less. And on the other hand, if McMasters had taken out a warrant in his own name, it would have been perhaps a more decisive evidence of claim in his own right, than any in this cause. This too the judge told the jury.

The fact that John Bell and C. Smith cropped the land, was relied on by the plaintiff. The defendant alleged, that having no team or farming utensils of their own, and their mother being entitled to one third as dower, this proved nothing.

All this was fairly submitted to the jury.

Judgment affirmed.


author: G-ibson, C. J. Huston, J.

text:
    THE INDIANA AND EBENSBURG TURNPIKE ROAD COMPANY against ARMOUR PHILLIPS.
    The Legislature passed an act, to authorize the incorporation of a company for the purpose of making a turnpike road, between specified points y books were opened by the commissioners appointed to take subscriptions of stock, at two different places on the contemplated route ; but subscriptions to an amount sufficient to authorise the granting- of a charter, were not obtained. A supplement to the original act was then passed, which divided the contemplated road into two parts, authorized the granting of two charters, and provided, that those who originally subscribed for stock, at a certain place, should be members of one of the companies; and those who subscribed at another place, should be members of the other. Held: That tlie latter act is unconstitutional: and that one of said companies cannot recover from an original subscriber, the amount of stock subscribed by him.
    Ereoe to Indiana county.
    This was an action in -which the plaintiff in error was the plaintiff- below, and brought to recover from the defendant the amount of his subscription to the stock of the Armstrong, Indiana, and Cambria turnpike road company.

    The following special verdict was agreed to by the parties:
    By an act of the general assembly of Pennsylvania, passed the seventh day of February, 1818, the governor of the commonwealth was authorized to incorporate the president and managers of the Armstrong, Indiana and Cambria turnpike road company; and by the act commissioners were appointed to receive subscriptions for stock in said company.
    On the 14th day of September, 1818, at Indiana, the defendant, Armour Phillips subscribed for four shares of stock.
    On the 27th day of March, 1819, the general assembly of Pennsylvania passed an act entitled, “A supplement to an act entitled., an act authorising the Governor to incorporate the president and managers of the Armstrong, Indiana and Cambria turnpike road company, ” authorizing the governor of the commonwealth to incorporate two companies in lieu of the Armstrong, Indiana and Cambria turnpike road company, — the one thereof to be styled “ The Indiana and Ebensburg turnpike road company, ” and the other to be styled “The Armstrong and Indiana turnpike road companyand dividing the stock subscribed under the former act, to which the latter act was a supplement.
    The defendant Armour Phillips, onthe 27th of March, 1819, resided on Yellow Creek, east of the borough of Indiana, -

      The governor of the commonwealth of Pennsylvania, by letters patent, under the seal of the commonwealth of Pennsylvania, bearing date the 13th day of December, 1820, granted a charter to the plaintiffs, by the name and style of “ The Indiana and Ebensburg turnpike road company.”
    On the 4th day of December, 1821, the president and managers oí the Indiana and Ebensburg turnpike road company, by a resolution, of which public notice was given in the newspapers of the county, required payment of three dollars upon each share of stock, subscribed by each stockholder, to be paid on the 1st of March, 1822, to the treasurer of said company. Six other instalments were called in, in like manner.
    If the Court shall be of the opinion that the plaintiffs are entitled to recover, then judgment to be entered for the sum of one hundred and twenty-eight dollars and twenty-five cents. If the Court shall be of opinion that the plaintiffs are not entitled to recovery, judgment to be entered for the defendant.

      Young, President, directed a judgment to be entered for the defendant.

      White for plaintiff in error.
    As the act of 1st April, 1823, entitled ‘‘An act relative to turnpike roads and bridge companies/’ &c., has been recognized by the Supreme Court in the case of Ogle v. The Somerset and Mount Pleasant Turnpike Road Company, 13 Serg. & Rawle, 256, and has been considered binding in all suits brought after the passage of that act: I presume no advantage can be taken in this case of the non-payment of the three dollars, at the time of the subscription, upon each share of stock subscribed.
    The subscription of the defendant having been made to the commissioners appointed by the original act of the 7th February, 1818, and while that act was in force, the question on the caste stated, is whether the legislature had authority to pass the act of 17th March, 1819. If they possessed such authority, the defendants are within the 4th section of that act, and the plaintiff is entitled to recover.
    The object of the supplementary act was to aid the subscribers in accomplishing the intention of the original act, in a more speedy and convenient manner. If was found that the distance was too great and required the co-operation of too many persons, .to enable them to attain the object contemplated, and it was, therefore, deemed expedient to divide the original company, which was accordingly done, at the same time, as it was not to be expected that any man subscribed with an intention of refusing payment when the road was completed. The original subscription theretofore made was preserved.

      Did the supplement impose another or a greater burden than existed upon the part of the subscribers under the original act? The amount of stock required to be subscribed previous to the issuing of the letters patent to either company, by the supplementary act, is precisely the one half of that required, by the original act, to be subscribed by ten persons instead of the whole amount by twenty persons. The distance was also equally divided. The ultimate value of the stock would be the same, the subscriber being a participator' in the profits of half the distance contemplated, in common with half the number of subscribers originally designed. Can this be said to be more onerous? Can it be said that it is a departure from the object originally contemplated, viz:the formation of a turnpike communication from Ebensburg to Kittanning? It is neither more nor less than the adoption of an-easier mode of reaching the original object; but in no other way could it have-been attained than by legislative aid and sanction
    But it is objected that the supplementary act has a retrospective operation- It is- true, “that the genei’al rule is, that all laws are in their nature prospective; yet this does not prohibit the legislature from passing some laws which have a retrospective operation; where the laws do not impair the obligation of a contract. Every confirmatory act is, in its nature, retrospective, and Rr this case, the Court decided that the act of 3d April, 1806, curing defective acknowledgments oí femes covert, was constitutional, although the property conveyed had been formerly the estate of the wife, and but for the passage of that act of assembly the plaintiffs were- clearly entitled to recover. Tate et ux v. 'Stoolfoos, 16 Serg-. & Bawle, 37. In Underwood v. Lilly, 10 Serg. & Baiole, 101: “Confirming acts are not uncommon. Deeds acknowledged defectively by feme coverts — proceedings and judgments of commissioners and justices of the-peace, who were not commissioned agreeably to the constitution, or where their powers ceased, upon a division of counties, until a new appointment” — - “retrospective laws which onlj vary the remedies, divest no right but merely cure a-defect in proceedings otherwise fair — the omission of formalities, which do not diminish existing obligations”— these and several like acts are constitutional.
    So the act of 2-2d March, 1817, giving the remedy to recover Upon notes issued by unincorporated banking companies, was decided to be constitutional.. Hess eí al. v. Werts, 4 Serg. & Bawler 364.
    “It-removes the impediment to recover upon a contract entered into by the defendant. It is so far retrospective — but every retrospective law is not void.”
    “Every law that is to have an operation before the malting thereof — as to commence at an antecedent time, or to-some time from the Statute of limitations, or to excuse acts which were unlawful -and before committed, and the like is, retrospective; but such laws may be necessary and proper.” — Duncan, J. ib.

    “This law divests no right but removes an impediment — it renders lawful an unlawful act, as'if it had been lawful; it impairs no man’s contract, but takes from the contract the taint which the policy of the moment-impósed on it.” — Ib.
    What is there in the 4th section .of the supplement more than a confirmation of the original subscription? It applies it as it was intended by the subscribers. That made at Indiana to the making of the road from thence to Ebensburg; that made at Kittanning, towards the making of the other section. Does it impair the contract? If so, in what manner? It does not take away any remedy the stockholder had to enforce the contract on his part. It does not give less force and efficacy to his vote in the concerns of the company. What vested right had he which has been taken away? It does not impose any additional clog or weight upon the stock that he subscribed for. Then of what can he complain, except that he is called upon to fulfil a contract which he has signed?
    The effect of the 4th section, is nothing more than to give validity to the stock which had been subscribed, and which, upon the division of the company, might have been lost for the want of a remedy to recover it. It is to cure a defect which would have existed, but for the provision contained in this section. It is only varying the remedy, and instead of collecting the stock and dividing it between the two companies, giving the remedy to each company, to recover that which had been subscribed within -its pi-ecincts. It does not divert the - subscription to a different purpose from what was originally intended, but gives the subscribers the further advantage of being able to-oversce the expenditure of the monej’ which they had subscribed, in their own neighborhood. It removes á disability which would have existed in the way of recovering the stock, had it been suffered to remain in its original state. The original company eould not have recovered it — never having been incorporated — and it was necessary to place the -remedy to cure this evil in the hands of somebody.
    In the'late case of Satterlie v. Mathewson, 16 Serg. & Sawle, 169, the Supreme Court went so far into the doctrine of the removal of disabilities, as to carry into effect the act of 8th April, 1826, (establishing the relationship of landlord and tenant, between-Connecticut settlers,) although-that act-was passed after ths commencement of the suit, and was virtually changing :the rule of law as laid down by the Supreme Court, for the decision of such cases, upon the-principle that the parties at the time that relationship commenced had not in view any -disability which either of them labored under.

      ■Judge Huston, in delivering the opinion of the Court, says, the legislature in this case have not affected any right* They have not prescribed a rule in any particular case. They have taken away a disability which, they thought, ought never to have been imposed, and which they thought did not exist when the contract was made.
    What is there more in the act of 1819, except providing for a disability which would have existed, but for their providing for the collection of the stock which had been subscribed. It is only directing the stockholders in which way they may pay the money, in order that the object they had in view when they subscribed, might be brought to a speedy consummation; but which, notwithstanding the length of time they have been indqlged, does not seem to be “devoutly wished for,” on their parts. The road has been completed by the exertions and with the funds of others, and they now wish to withhold what they had engaged to pay in furtherance of the general good.
    This principle of varying the persons who are to receive money subscribed in furtherance of a particular object, is not a novel one in our Court.
    In Davis v. Meade et al. 18 Serg. & JRatole, 282, the Court held that the plaintiffs below were entitled to recover, although they were fifteen in number, and the original subscription had been made to three only. When the addition had been made by two acts of assembly, passed 2d April, 1802, and 4th April, 1805, respectively, and there had been several subsequent acts of assembly changing the number of trustees; under one of which acts the defendants could at one time have had the suit dismissed upon application to the Court below.
    Even in the case of a change in alteration of the name of a corporation, it does not lose its franchises. Mellan v. Spateman, 1 Saun. 344. Cilchester v. Seaber, 3 Burr. 1870.
    And the corporation under the new name would retain all its possessions that it had before, and shall recover, in that name, debts due before. 1 Saunders, 344, in note (1.)
    This principle has been recognized in its full extent, by our Supreme Court, in the case of the Overseers of North Whitehall V. The Overseers of South Whitehall, 3 Serg. & Rawle, 117.
    It was there decided that by the division of the original township of Whitehall, this corporation of overseers of the poor, was not annihilated, but that the two corporations contending, grew out of it, and were subject to the same liabilities by which the original corporation was bound and entitled to the same rights, and although the case did not require a decision of the point, the Chief Justice intimates plainly, that the property held by the old corporation, would be divided between its successors, and would not reyert to the donors.

      By the 16th section of the act of 9th March, 1771, the overseers of the poor of every township are constituted a corporation, and empowered to hold property to the yearly value of five hundred pounds, and by the division of a township, which is done by an application to the Court of Quarter Sessions, and upon the election of overseers, they become ipso fado, a corporation, and according to the principle decided in the case last cited, entitled to have their proportion of the property belonging to the old corporation, from which they were stricken off, and this without any direct legislative provision upon the subject, but merely by implication of law, founded upon the reason and justice and expediency of the measure.
    If'then this be the result of dividing a corporation already in existence, how much stronger is the case of the present plaintiff? Suppose the company had been incorporated under the original act, and it was found expedient to divide it into two corporations, as in the present case, and I take it for granted that, with consent of the original corporation, this could be done; and their consent, could only be necessary because the letters patent had been issued; and till that is done, no consent is necessary, because there is no charter of privileges in the way. I ask, in that case, what would become of the subscriptions remaining unpaid? After the principles cited, will it be contended that the subscription was extinguished, or rather must it not be considered that the subscription belonged in equal proportions to the two new corporations growing out of, and based upon, the original incorporation? This seems to be the result of the principles laid down in the cases cited, and we are not embarrassed by the difficulty that might arise as to what mode should be adopted to recover the debt due as the course has been directed by the act of assembly, authorizing the division of the stock upon fair and equitable principles.
    If a corporation can be divided, and the rights and duties incident thereto yet subsist, how much stronger is the case of division before any charter granted? If upon the division these rights and duties subsist by implication — where the division itself is made by a tribunal deriving its authority from the legislature — how much stronger is the case where the division is made by the legislature and the division of rights and duties is expressly defined by the legislature, in the act giving authority forsuch division?
    If it had been the division of an existing corporation, it is clear, from the cases cited, that these debts would not have been annihilated, the only difficulty would have been what mode was to be pursued to recover them. Would it be in the name of the old corporation for the use of the two subsequent ones? Or would each proceed for their proportion? To avoid these difficulties the iemedy is provided by the 4th section of the supplement. It does not impair a contract, but in the language of the Court, in Stod-dart v. Smith, 5 Binn. 355, “It merely gives a new remedy to enforce a contract previously entered into,” and therefore it is not unconstitutional. It deprives' no Rian of his property like the act confirming the Connecticut claims. It divests no right which had been acquired, but is simply a confirmation of a contract which had been entered into, and an appointment of a remedy and a mode of enforcing it, lest peradventure it might fail. In Estep, et al. v. Hutclmian, et al. 14 Serg. & Bawle, 438, the Supreme Court decided that an act of assembly authorizing guardians to convey real estate, which their parent had contracted to sell in his lifetime, was valid, and the conveyance vested the estate. This, upon the ground that there must exist a power somewhere to give a remedy to prevent failure of contracts, where, from circumstances, the contract cannot be enforced by or amongst the persons originally parties thereto.
    So far has the principle of confirming contracts been carried by the legislature, that they have supplied the want of evidence upon the part of turnpike companies, necessary to maintain suitsagainst delinquent subscribers to the stock, and have made the circumstance of their having voted at an election for officers of the company. sufficient to charge the defendant with an equal number of shares to what he represented himself entitled to at such election, and have made valid all charters obtained upon subscriptions which were fictitious, or by persons deemed insolvent. This act of 10th April, 1826, has been recognized by Duncan, J. in delivering the opinion of the Court in The Kis'acoquillas and Centre Turnpike Company v. McConahy, 16 Serg. & Bawle, 147, and Ms termed by him the healing act, without intimating a doubt of its constitutionality.
    This act became necessary in consequence of the difficulties under which the various turnpike companies throughout the state labored in attempting to recover subscriptions which had been-made of stock in therespective companies. After theroadshadbeen completed, at the expense of some of the stockholders and by contracting debts to individuals, many refused to pay what they had contracted, and from some irregularities or want of evidence they were like to escape; and many would have escaped but for the interference of the legislature, curing all defects, and prescribing a remedy for the evils complained of; in fact, doing no more than was done by the supplement under which the present plaintiff was incorporated — confirming a contract and pointing out a course to compel the payment of subscriptions which would have been lost for the want of an adequate remedy.
    If upon the incorporation of the original company contemplated, the right to the subscription would have remained notwithstaad-ing the subsequent division of that company, though the remedy to recover that subscription might be hard to point out, it cannot be contended with success that the legislature could not under their general powers, do that before incorporation which could be done under certain circumstances after charter granted; and if the point is established by the cases cited, the minor one is a necessary consequence of that being established. It is merely pointing out a remedy to enforce a contract whieh was valid and binding, but which, from the constitution of our courts, there might have been difficulty ,in enforcing; and that they had authority to supply this remedy is abundantly proved by the authorities. We do not ask to divest any right to which the defendant was entitled; we do not impair the obligation of any contract which had existed, nor impose any additional burden upon him which was not in his contemplation at the time he made the subscription. The object towards the completion of which he subscribed, has been attained; and we now ask that he shall perform his contract., and pay the amount which he voluntary subscribed.

      J. B. Alexander for defendant in error.
    For the defendant, it is readily admitted that the non-payment, at the time of subscription, of the money which ought then to have been paid on each share of stock subscribed, cannot be objected against the plaintiff’s recovery. The aqt of 1823, operating by way of confirmation of an inchoate right, makes the defendant a stockholder in the corporation named in his subscription, if it be yet in existence, as full)7 as though the payment had been made at the time of subscription.
    The defendant by his subscription became one of a company, when incorporated, by the title set forth in the case, and to that company only he contends he is responsible. The scene of operations of that company was to extend from Ebensburg, at the eastern extremity, and to embrace Indiana, in the centre, and Kit-tanning at its western termination.
    That company, without any participation in the measure by the defendant, was by a subsequent act of the legislature, divided into two companies, or rather two new companies were formed to operate on the same extent of country — one on the eastern half of the road contemplated to be made, tbe other on the western half.
    Could the legislature thus divide the original company? Could the corporators be divided at the pleasure of the government, without their consent? Is the defendant a stockholder in either of these new corporations? Can he be sued by either of them on his subscription to the original company? It is contended lhat each of those questions must be answensd in the negative.

      The defendant contends that by his subscription he became one of a company with whom the state had entered into a contract for certain purposes — that he is or was bound by the terms of that contract, and that he is answerable on no other engagement but that one.
    He says the rule is well established that in an action on a contract, the plaintiff must prove his contract as laid or he cannot recover ; but the proof in the case litigated shews a contract with a different party, and different in extent. He says that what is now shewn, is not proof of a contract made by him, nor by any one for him, with his assent. My bargain, he says, is with the Armstrong, Indiana and Cambria Turnpike, and not with the Indiana and Ebenrburg Turnpike Company. On this statement he is entitle to judgment unless something more be shewn.
    The plaintiff in answer says, the same power which created the first corporation has thought proper to change it, and to abridge the extent of its rights and privileges, and make you a member of another company, having a new name, and to make a subscription for you, by the act of 17th March, 1819, and that the plaintiff can therein well maintain this action.
    Now it is submitted by the defendant that this case is clearly within the prohibitions contained in the constitutions of the United States, article I, section 10, that “no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” And that it is also embraced in the 9th article, 17th section of the constitution of Pennsylvania which declares that “no ex post facto law, nor any law impairing contracts shall be made.”

    Inasmuch as the act of 1819 attempts to make a new contract between the corporators — as it entirely alters the situation of the parties — as it essentially impairs the contract made by the defendant under the act of ISIS, it is contended it is inoperative.
    And here the inquiry very naturally presents itself, whether the act of incorporation of 1818 amounts to a contract within the meaning of those constitutional provisions.
    It is not believed that any argument is necessary to prove that the government of a state may be a party to a contract with one, or some of its own citizens. Nor can it be necessary to prove, that an act of incorporation by the supreme power* of the state is a contract with the persons incorporated, that they shall have the corporate powers thereby granted to them.
    In Fletcher v. Peck, 6 Cranch, 136, Chief Justice Marshal in deciding on the validity of an act of the legislature of Georgia says, “a contract is a compact between two or more parties and is either executory or executed,’* — “A contract executed, as well as one which is executory, contains obligations binding on the parties. 'A grant in its own nature amounts to an extinguishment of the right of the grantor, and implies a contract not to re-assert that right.”
    Now it cannot be objected by either party to this controversy, that the commonwealth had not a right to erect a corporation, and to grant to it the powers necessary to enable it to make the turnpike road mentioned in the act of 7th February, ISIS.
    It is also made a part of the case that the Commonwealth did exercise that right, and make the requisite grant of power. It thereby parted with its right over that subject. That grant of power was met by a subscription of stork, and the state could not re-assert its right over the matters granted. If it was a contract executed it cannot be altered but with the consent of all the parties to it, or because of misuser of the powers granted. If it was a contract executory, a new scheme, or modification of it will only be binding on those who accede to the new terms.
    The subscription being made under the act of 1818 the Governor could not refuse the charter. A contract was made between the state and the stockholders — it was a-compact between two parties — a grant on the part of the one, and an acceptance on the part of the other. There was the union of two minds on the same subject, clearly expressed and fully understood. There was an implied contract that the government, who was the grantor would, not re-assert its right over the privileges and powers granted. This understanding was binding on the parties on general principles, as well as by the particular provisions in the constitutions as they are relied on.
    It will he readily seen that the objections of the defendant to the act of 1819 do not rest so much on an alleged diminution of, the value of his subscription, as on the principle assumed by his adversary, that the legislature may at their pleasure vary the terms of their grant.
    If there be in the government a power to alter the terms of the grant in one particular, the same power will extend throughout the compact, and may be made to operate on every part of it. Any change in a contract or in the circumstances connected with it, so as essentially to alter the situation of the contracting party dissolves that contract. It is admitted by all that this is the rule as between individuals, and the counsel for the defendant knows of no. reason why the same rule should not be applied to the existing controversy. Indeed the reasoning of Chief Justice Marshal, and his exposition of this constitutional prohibition and restriction, on the state legislatures, would seem to require more caution and circumspection, in permitting a change when the state is a party, than when the subject matter is interesting to individuals-only. 6 Cranch, 137.
    This very provision against unlimited power in legislation he designates as a bill af rights for the people. — a bill to protect the people against legislation on matters not properly subject to discussion in any other forum than a judicial one.
    It is against the adoption of any such principle that resistance is now made. It is believed to be erroneous in every view, it is-unjust, and directly adverse to the constitution of the U. S. and of Pennsylvania.
    The formation of two companies to construct two roads over the same ground, and to the same extent precisely, and in lieu of one'company having a priority of organization, cannot possibly be valid if the first corporation remain.
    If the .act of the legislature-erecting the first corporation be-repealed, the corporation itself must, by the terms of the repealing act be dissolved.
    If it be repealed, and the corporation be dissolved, its responsibilities are ended, its rights to sue are-ended, and its claims terminated.
    All this must be evident, because, the present actions are founded on this notion, that the first corporation is dissolved, and its: rights of action, to-a certain extent, are transferred by operation-of the repealing statute, to the new corporations. If this be so, the defendant is not shewn to be a party to that new contract, so as to give a right of action.
    But can any division of a corporation, and'of its rights, its privileges, and powers, be made, so as to bind the members, and-transfer those members and their stock to one of the divisions,, without their consent. This would be making a new bargain for the parties, which the legislature cannot do.
    The defendant was a member of a corporation with power and-rights extending over say 50 miles of territory, and embracing, the whole-line of transportation between that part of the Allegheny mountain where it terminates, and the Allegheny river at Kittan-ning, where it commences. Surely these rights must be impaired, if they are restricted to one.half the-distance by a subsequent interference- of.' the-authority which, created the corporation.
    The authorities cited',, and positions maintained by the plaintiff’s-counsel, will be now met and answered.
    If the law of 1819 had been enacted for the mere purpose of' supplying some casus omissus in the act of 1818, it would have been a fair subject of legislation. If it had merely altered a remedy, without infringing, on any right, it. could not be said to be oppressive'hr unjust

      If it had merely changed the name of the corporation by the -consent of the stockholders, however informally applied for, it might perhaps have been within the principle of former decisions. But to change, alter, lessen, increase, or destroy the integral parts of the corporation, must be resisted.
    It is said it was deemed expedient to divide.the original company, because it was too extensive. Perhaps it was so, but the present defendants never gave their assent to that expediency-
    It is said the burden of the stockholders is not increased. But how is that known? Is not a mile of turnpike near to the navigable waters of the Allegheny river more productive than a similar distance on the face of the Allegheny mountain? And whether it be so or not, if the party wishes to have an interest near the river, and obtains it, you cannot, against his,will, send him to'the mountain. He may well say non in haze foedera veni.

    It is not objected that the act is retrospective further than itas-sumes to itself the power to make a new contract. So far it is alleged to be unconstitutional.
    It is not a confirmation of the original subscription, but an attempt to destroy it, by depriving of existence the party with whom it was made, viz.., -the corporation, and which must be in full life ■and vigour, with all its original rights unimpaired, to continue the operation of the contract on the other party. But that corporation is destroyed ; so there is an end of its rights.
    It,is not the removal of a disability that is complained of, but it is the interposition of an insuperable obstacle to the success of the scheme, by the legal destruction of one party to the contract— the corporation itself; and the introduction of another corporation in its place, a mortal and deadly enemy to its existence.
    It is not varying the persons who are to receive the money for a particular object, but it is varying, and entirely changing, the object .itself.
    "The counsel for the defendant cannot see the similarity between the case of the Court of Quarter Sessions, under the provisions of the act of .1803, dividing a large township, and making two of it; and the case before the court. But if the case of North ■Whitehall v. South Whitehall, be at all important, it is.the position there laid down as supported by good authority, that the dissolution of a corporation is also a virtual dissolution of all its responsibilities.
    And if the corporation be freed from all responsibilities, "it surely loses all its claims; and this is the -very reason why in all our acts of incorporation a clause is inserted, continuing the rights and responsibilities after the dissolution. But has there been any ease where those rights and responsibilities have been thrown to.,
      and on, another corporation. It is believed the present case is the only one of the kind. It is indeed sui generis.

    It is not giving a neio name to a corporation, but it is making two corporations out of one, with different names and with purposes and extents of privileges essentially different.
    These answers seem to be satisfactory, and shew that the arguments of plaintiff’s counsel do not apply to the case.
    To make the act of dissolving the first corporation and the erection of the new ones, binding on the present defendants much more must be shewn than exists in this case. There must be the assent of the parties.
    “A patent procured by some few persons only, shall not bind the rest: nor can the inhabitants of a town be incorporated without the assent of the major part of them.
    “So a statute incorporating certain persons, will not bind one who is named unless he assents to it. 2 Ba. ¿2b. 3 Roll. Rep. 226, 2 Mass. Rep. 269.
    The argument of Mr. White for the plaintiff merits a much more deliberate examination than can be afforded by the defendant’s counsel at present. It is however believed that his positions and authorities are in the main met by what has been already said.
   The opinion of the Court was delivered by

G-ibson, C. J.

Under an act of incorporation, the defendant subscribed the shares which are the subject of the action, in the Stock of “ The Armstrong, Indiana and Camhria Turnpike Road Company.” Of this company, which did not go into operation, the legislature formed two distinct incorporations, of which the plaintiff is one and the owner by apportionment, if any thing were recoverable, of the defendant’s subscription. From this state of the case, it is impossible to avoid a conclusion that the supplementary act is, as regards original stockholders who have not consented to be arranged to either of the new incorporations, in direct collision with the tenth section of the first article of the constitution of the United States, which among other limitations of state power, prohibits the enactment of laws impairing contracts: and notwithstanding our deference to the legislature, we are bound to give effect to the constitutional provision, though at the expense of our common law. The defendant was entitled to his proportion of the tolls received on the whole route, instead of perhaps the least productive half of it; and to enforce his part of the cuntract without giving him the benefit of the entire thing for which he stipulated, would impair its obligation in a most material part. It is not to be doubted that the supplemental act was founded in a presumption of common consent, drawn from an application by a majority of the original stockholders; and in that view it would be fair to intend that the legislature did not, in fact, mean to dispose of the subscriptions of those who should not choose to become'parties to .the arrangement. The defendant has not ■thought fit to become a party, and his subscription cannot be demanded.

Huston, J.

-This case has been argued as if it turned on the power of the legislature to pass an act., compelling the defendant to pay the money demanded, under the circumstances of this case; and has been disposed of by a majority of this Court, as if it depended on such power. On first reading the case, and the act of 27th March, 1819, it struck me, that a' construction was put on it by the plaintiff, and partly admitted by the defendant, which those who passed the law never thought of. The act throughout, bears evidence of having been hastily drawn; in many respects it is vague, if not obscure. It does not appear whether the company, to divide which the law was enacted, existed .or not; or rather, one would be led to suppose there was such a company. When iu fact only a few shares had been subscribed, and no charter had been obtained, it was pretty certain none would be obtained. Thus, the act which purports to divide a turnpike company, was in fact made to enable two new companies to be formed ; each of which was to make part of the road contemplated by the former company. The fourth section enacts, that the subscriptions already made to the commissioners appointed by the act to which’ this is a supplement, shall and may be lawful; and shall be applied in manner following, &c., and prescribes that those made at Kittanning shall be in part of the western company, and thosé at Indiana in part of the eastern, i. e. the plaintiff’s; and strange as ■it may seem, says nothing of those at Ebensburg, "or any other place. There has been some discussion as to when, in an act of assembly, the word may means shall and e contra, the amount of which is, that when from the subject, the object and the context, that meaning is required, we must so understand it; but where none of these require it, the word should have its common meaning. If the words “and may” had been omitted, it would not have been entirely clear, that the meaning was the same, as if the words “spall be obligatory on the subscriber,” had been used. To me it seerps not allowable to reject the words “and may,” and to change the'words “be lawful,” into “be obligatory.” In short, I consider the law as leaving it oplional with the subscriber. The records will bear this construction better than that given to them in the argumént: and I am persuaded this gives the meaning of the legislature. I add no new words, I reject no word, and I change none. It is allowable to transpose words to effect a meaning, or get clear of an absurdity. I agree that the judgment be for the defendant, because the option was given him.

Judgment affirmed.


text:
    PAUL HOUGH against HENRY TROUTS.
    IN ERROR.
    In an action of covenant upon a warranty of title contained in a deed of bargain and sale, the plaintiff offered in evidence the deeds a copy of an action of eject, ment by which he was evicted, together with depositions to prove that the evic. tion was from the same land as ¿escribed in the deed ; which the Court over-ruled on tjhe ground that it did not so identify the laud as to support .the plaintiff’s cause of action. Held to be error.
    Error to the Common Pleas of Westmoreland county.
    This was an action of covenant, in which the plaintiff in error was the plaintiff below. The whole case is fully stated in the opinion of the Court:

      «Armstrong and J. B. Alexander for plaintiff in error.

      J2. TV. Foster for defendant in error.
   The opinion of the Court was delivered by

Smith, J.

This was an action of covenant, brought by the plaintiff in error, against the defendant to recover damages for the breach of certain covenants entered into by Henry Trouts in his life-time. The plaintiff declared, that on the 25th of August, 1806, the testator, Henry Trouts and Catharine his wife, by indenture in consideration of $530, granted, bargained, sold, released and confirmed to him in fee, a tract of land in Fairfield county, in the state of Ohio, in the first quarter of the fourth .township and fourteenth range, &c. known as No. 8, containing 168 acres and 76 perches, and covenanted therein, “ that he would warrant and forever defend the tract ef land, against them, the said Henry and Catharine, their heirs executors, administrators and assigns, and against all and all manner of persons, laying lawful claim thereto. And that he, the said Henry Trouts was the proper, true, sole and lawful owner and possessor of the said •granted premises, and had in himself, good right, full power and lawful authority to grant, bargain and sell the same, and to hold the same free and clear from all other gifts and incumbrances, and that he would warrant and secure the same against the lawful claims and demands of all other person whatsoever:” and averred, that the said Henry Trouts, was not the true and lawful owner, and had no power to grant, bargain and sell the same; that it was not free and clear from other gifts, grants and incumbrances, but that the title and freehold was in other persons, to wit, in Alexander Holmes ahd William Stanberry, who on an ejectment for the same, obtained a judgment, and recovered the possession thereof, and evicted the said Paul Hough, and that he thereby lost the said land.

The pleas were non est factum, non infregit conventiones, and covenants performed, with leave to add.

On the trial, the plaintiff offered to read the indenture of the 25th of August, 1806, which had been acknowledged, before Jacob Painter, a judge of the Court of Common Pleas of the county of Westmoreland, to which the defendant objected. It appeared that Jacob Painter was the only witness to the deed, and was dead ; and an offer being made by the plaintifffo prove his signatures to the deed, the receipt and acknowledgment to be his proper hand writing, the defendant admitted them to be so, when the plaintiff again offered to read the deed in evidence; but the Court rejected it, to which the plaintiff took an exception.

A certified copy of the said deed from the office of the recorder of deeds of Fairfield county in the state of Ohio, together with the depositions of James Holmes and William W. Gault, taken on a commission, and also a copy of the record of the proceedings in the Supreme Court of the state of Ohio duly certified, were then by the plaintiff offered in evidence; to which the defendant also objected, and they were by the Court rejected, and a further exception was taken by the plaintiff.

It appeared, that the object of the above stated depositions, was, to identify the land ; to prove that the ejectment filed in the record was brought for it ; and that the final recovery in the same, was on a title adverse to that of Henry Trouts, set forth in the deed and declaration of the plaintiff

In this Court, the rejection of all this'evidence, is assigned for error by the plaintiff; and for the rejection of it, he asks a reversal of the judgment of the Court of Common Pleas. No ground is stated why the evidence offered was rejected; at least, none is given in the record returned to this Court. However, it does appear to us, that the whole of the evidence offered, was clearly admissible. On the agreement here, the defendant in error alleged that the objections to the admission of the deed were, that it was not the same as the one declared on, and that it was not of the same date. But this objection appears not to be founded in fact; for the deed declared on, is by and between the aforesaid parties, and bears date the 25th of August, 1806. The one offered, is between the same parties, and of the aforesaid date ; so that it would appear to be the same, and ought to have gone in evidence to the jury;. — besides, the plaintiff offered to prove the identity of the land mentioned and conveyed in the deed, and'that the same had been recovered by ejectment from thepre-sent plaintiff, whereby he had lost it. Against all this, Henry Trouts, in his deed to Paul Hough, had covenanted; for he had expressly agreed, to warrant and defend the land against all,.and all manner of, persons; that moreover, he was the sole and ■ true owner and possessor thereof, and had full power to sell it. Then . under such covenants — of ownership — seisin—power to sell — peaceable enjoyment — freedom from incumbrances, &c. if the vendee should be evicted, he clearly can recover damages for his loss. For this,- the plaintiff instituted this action, and the evidence he offered, went to prove it; but the Court rejected the very testimony which had been offered to prove and establish the defendant’s covenants ; and in the next place, the evidence offered to prove the breach of his covenants. In this, we think therer was error.

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


author: Sogers, J.

text:
    THOMAS H. PATTERSON against THOMAS PATTERSON’S Administrator.
    IN ERROR.
    That part of a deposition which is in the hand writing of the agent or attorney of the party, cannot be read,- although an agent oT the other party was present and cross-examined the' witness, after having objected to his competency on the ground of interest. The cross examination in the hand writing of the justice is not exceptionable, and may be read.

      A signed his name to a blank paper and gave it to B, for whom- he had agreed to be surety to C, for money about to be borrowed. B got the money, and wrote a joint and several note, together \\ ith his own signature and put a seal to it, above the signature of A, and also a seal to the signature of A. Held: That in a suit on the note,, against B alone, he could not avail himself of these circumstances, as a defence, upon the plea of non estfadum¿

    From Westmoreland county.
    This was on action of debt on a note under seal, in which Nancy Patterson, administratrix of Thomas Patterson, was plaintiff, and Thomas H. Patterson was defendant. It was a joint and several note by the defendant and John Patterson: but this suit was against Thomas Patterson alone. Plea, non est factum.
    The defendant offered in evidence the deposition of John Pat
      terson, which was objected to on the ground that a part of it was in the hand writing of Alfred Patterson, a brother of the defendant, who acted as his attorney in taking, the deposition. On this subject it appeared, Jilfred Patterson had been admitted as an attorney at law in Westmoreland county; he brought that part of the deposition with him to the office of the justice, and read it to the witness; the residue of the deposition, (being the cross-examination,) was written by the justice. An agent of the plaintiff attended, and objected to the taking of the deposition, alleging as a reason, that the witness was a party in interest in the suit: he then cross-examined the witness. It also appeared, that a few weeks before the trial of the cause, the defendant called upon the plaintiff’s agent to know whether the deposition would be objected to on the ground of its not having been written by the justice, stating that if it would, he would proceed to take it again more formally. To which the agent answered, “he did not know', that it He in the breast of the Court and those who were em. . m,
    The Cc’ii-- rejected the deposition, except, the cross- examination by the plaintiff’s agent, which was .written by the justice.
    That part of it which was read, stated, that the signature “John Patterson” to the note, was in the hand writing of the witness: that he signed his name to a blank, without any writing above it; that his son got it: there was no particular conversation or instructions about the filling up of the note: that no authority w?as given to put a seal to the note: that the seal was not put there by him, nor by his authority.
    Defendant’s counsel prayed the Court to charge the jury, that if they believed the testimony of John Patterson, that he did not put his seal to the note, nor authorize any one to do it for him, and a seal was put to it without his direction or authority, the plaintiff could not recover.

      Young, •president. — Charged the jury, “that if they believed that the defendant had signed and sealed the paper in question, it did not signify whether John Patterson, the other,’ had put his seal to it or not.

      J. JB. Alexander, and A. TV. Foster for plaintiff in error.
    See Ogle v. Graham, ante.

      Coulter for defendant in error,
    whom the- Court declined to hear.
   The opinion of the Court was delivered by

Sogers, J.

There can be no reasonable doubt, that Alfred Patterson was the attorney of the defendant. He attended when the deposition was taken, declares himself the attorney, and acted as such, in the presence and by the authority of the defendant. The defendant shall not now be permitted to say, that he was not employed as attorney. Whether he was retained in the cause generally, or was merely employed,' for a special purpose, makes no difference as was decided at Sunbury, in a case not yet reported.

The defendant’s counsel allege there is error in refusing to charge the jury, that if they believed the testimony of John Pafr-terson, who stated, that he did not put his seal to the note, nor authorize any person to do it for- him, aqd a seal was put to it without Ms direction or authority, the plaintiff cannot recover.

This was a joint and several note, and the suit is brought against Thomas II. Patterson, the son, who transacted the business, and received the money. It is not alleged, and I suppose cannot be with truth, that any additions were made after the delivery of the note. How then, has- the defendant supported his plea, that this is not his deed? It is undoubtedly the deed of Thomas H. Patterson, whatever effect the alteration of the instrument may produce as respects John Patterson. The Court were correct in charging the jury, that if they believed the defendant had signed, and sealed the paper in question, it did not signify whether John Patterson had put his seal to it or not. Even if the suit had- been brought against John Patterson, the jury would have-been right in considering Thomas as the agent of his father, and authorized to:put his seal to the note. The distinguishing feature-of this, and of Graham v. Ogle, is, that the alteration was made before and not after delivery.

Judgment affirmed.

       Addleman v. Masterson, 1 Penn. Rep. 454.


text:
    JOHN RAMSEY surviving, &c. against THE WESTMORELAND BANK.
    IN ERROR.
    When a creditor has it in power to receive a part of his debt out of the estate of tlie principal debtor, who is deceased, and does not avail himself of it, the-surety-will be thereby discharged pro tanto.

    Error to Westmoreland county.
    The West mor eland bank of Pennsylvania brought-suit against William Johnston and John Ramsey, to May term, 1820. It was brought to recover the amount of a note drawn by William Johnston, and indorsed by John Ramsey, for the sum of $2,00Q, sixty days after date, and discounted at the said bank. On the 26th of February, 1821, on motion of the attorney for the plaintiffs, there was judgment against both defendants rendered according to the statement filed. A scire facias issued to February, 1826, against John Ramsey as surviving William Johnston, upon which nihil was returned, and there was no appearance for the defendant. An alias scire facias issued to Nov. term, 1S27, reciting the death of the said Johnston subsequent to the rendition of the judgment against both. To this writ there was an appearance for the defendant below, now plaintiff in error. The pleas were payment, nul tiel record, and “that William Johnston named in plaintiff’s writ hath not died since the rendition of the judgment recited in said writ againsfithe said William Johnston and the said John, as stated in said writ,” &c. To this the plaintiffs replied, but afterwards by-leave of the Court withdrew-their replication, and demurred specially. The causes assigned for demurrer -were “ that the plea is not positive and affirmative, but is argumentative, and does not state that the said William Johnston was in full life at the time of suing out said writ of scire facias, and is in other respects uncertain and insufficient.” The Court, upon this demurrer, gave judgment for the plaintiffs, and that the defendant should answer over. A jury was afterwards called to try the issue on the plea of payment. The defendant offered in evidence in support-of the issue on his part, the report of auditors appointed by the Court of Common Pleas, at the instance of the creditors of said Johnston, deceased, to marshal and arrange the moneys made by the sale of the real estate of said Johnston, that the Court might direct the confirmation thereof in the proper manner. By this report it appears there was á balance in the hands of the different sheriffs., who had made the sales, of @862 and S4 cents, after paying all the judgments in the life-time of the said William. The defendant likewise offered in evidence the reports of auditors appointed by the Orphans’. Court of Westmore-land county, upon the administration accounts of Thomas Johnston and Robert Johnston, executors of the said William, deceased, by which it appeared there were balances in their hands for dis-? tribution among the creditors of said deceased. All this evidence was objected to by the counsel for the plaintiffs below, because it was not relevant, and the Court rejected the evidence. The defendant’s counsel excepted.

      J. Findley for plaintiff in error.
    The defendant’s plea was not argumentative, but a simple denial of a fact alleged in the plaintiff’s writ.
    The evidence offered established the fact, that the bank was entitled to part of the proceeds of the real estate of Johnston, the principal, which discharged the surety pro tanto. Bank v. Winger, 1 Rawle, 302.
    «#. W. Foster for defendant in error.
   The opinion of the Court was delivered by

Smith, J.

An exception was taken by the counsel of the defendant to the Court’s refusal to admit in evidence on the trial of the cause, the report of auditors appointed by the Court of Common Pleas at the instance of the creditors of William Johnston, deceased, to marshal the moneys arising on the sale of the real estate of said deceased, in order that the Court might distribute the same according to law; and, by which report, a balance of 862 dollars and thirty-four cents, appeared to be due and remain in the hands of the sheriff, after payment of all the judgments obtained against the said William Johnston, in his life-time. And also the report of auditors appointed by the Orphans’ Court, on the administration account of the executors of the said William Johnston, deceased, from which it further appeared, there were balances in their hands for distribution among the creditors of the deceased. This evidence was rejected, as irrelevant. The note, on which the suit was instituted, had been drawn by William Johnston, and indorsed by John Ramsey, he was then, a mere surety, and as such, entitled to be favoured in law. The evidence he offered was to prove, and would have proved, that a large balance, arising on the sale of the real estate of William Johnston, was in the hands of the sheriff, which was subject and liable to the judgment of the bank, and would have been obtained, if due diligence had been need. The case then, if proved, as offered by the plaintiff in error to the Court below, would have come within the principle stated by the present Chief-Justice, in Bellas v. Miller’s administrators, S Serg. & Rawle, 457, “that no rule, in equity, was clearer, than that where a creditor has the means of satisfaction in his hands, and chooses not to retain them, but suffers them to pass into the hands of the principal, the surety can never be called on.” Here, to be sure, the bank had not the balance, actually in their hands, nor did they actually assent to its passing into the hands of Johnston, but they might, by using due diligence, and by doing their duty to the surety, have obtained it, and'thus have had satisfaction pro tanto, on their judgment, from the proceeds of the real estate .of the real debtor, and it was their duty to have done this. The money thus obtained from the sale of the real estate of Johnston, on which the bank’s judgment, was a lien, was actually brought into Court. Johnston could not take it out of Court, but the bank could have done so, and if they did not, they must lose it, for having had the means of payment in their power, they could not pass them by and recover from a surety. The ievidence then offered by the plaintiff in error, was relevant, and ought.to have been received.

Judgment reversed and a venire de novo awarded.


author: Ross, J.

text:
    BRYSON’S ROAD.
    If uan order' to viewers be taken out of the clerk’s office, without the seal of the Court, or the signature of the officer to it, it is a defect, and not a mere informality which the Court may amend, after the report of the viewers is made and returned into tire office.
    Great latitude must be allowed to viewers in locating a road; particularly as respects the ground which they may deem most suitable.
    The act of assembly requires that viewers should be sworn before they enter upon their duties; if they first perform the duties and are afterwards sworn, it is a fatal exception tojheir report.
    Depositions taken and filed in the Court of Quarter Sessions, and sent up with the record on acertiorari, may be read in this Court in support of an exception founded on, fact.
    CurtioRAki to the Court of Quarter Sessions of Cumberland county.
    This case originated out of a petition for the appointment of viewers to lay out a road “commencing at a point on the public road leading from Lisburn to Carlisle, at or near a house on the land of the heirs of William Bryson, deceased, now in the occupancy of Samuel Rosier, to a point on the state road, at or néar the house of Jacob Gehr, in Allen township.”
    There were several views and reviews, in the couse of which, two routes were located, the “eastern” and “western route.”

      To the report of reviewers exceptions were filed; upon the argument of which the Court made the following order:
    “12 Aug. 1829. This report being objected to, two routes are contended for; to settle the matter a re-review is appointed; both routes and parts adjacent to be viewed and the re-reviewers to report to next sessions.”
    At the next sessions a report was made in favor of the eastern route: to which the following exceptions were taken:
    1. There was no authority given to the reviewers to-make a report, the order having neither the seal of the Court, nor the signature of the officer to it.
    2. No order such as was made by the Court of Quarter Sessions on the 12th August, 1829, issued to the re-reviewers appointed at that time.
    3. The road as located by the re-reviewers who sign the report, does not begin at or near the point mentioned in the prayer of the Original petitioners.
    4. The re-reviewers did not re-review both routes as they were ordered by the Court.
    5. The re-reviewers were not sworn before they performed the duties of their appointment.
    These exceptions were over-ruled and the report confirmed. The same were insisted upon in this Court.
    To support the exceptions, several depositions were taken in the Court below, which were filed, and sent up with the record. To the reading of these depositions objection was made, on the ground that no matter of fact.could be investigated in this Court. This objection was over-ruled, and the depositions were read.

      Watts and Carothers in support of the exceptions.
    Alexander, contra.

   The opinion of the Court was delivered by

Ross, J.

Five exceptions have been taken to the confirmation of the decree of the Court of Quarter Sessions in the matter of the road “leading from a point in the road from Lisburn to Carlisle, at or near a house on the land of the heirs of William Bryson, deceased, now in the occupancy of Samuel Kozier, to a point on the state road at or near the house of Jacob Gehr, in Allen township.” The first exception is, that there was no authority given to the viewers to make a report, the order having neither the seal of the Court, nor the signature of the officer to it. The validity of this exception is resisted on two grounds. 1. That the omission of the signature and seal was mere informality; and which the Court might direct to be amended at any time after the return of the order and report, ás was done in this ease. 2d. That there was án acquiescence after the omission was shown, if not an agreement, on the part of Robert Bryson, one of the -most prominent opposers of the decree of the Court, that the re-reviewers should proceed and examine the ground. I have found no decision, which authorizes the Court to supply the omission of the signature and seal on the return of the order and report. It is decided in Benjamin v. Armstrong, 2 Serg. & Rawle, 392, that the defendant cannot, take advantage of the omission of the Prothonotary’s name to process* if it be under seal, after appearing and pleading to issue — arid that Such defect in process is also made good by the act of the .2d of March, 1805: But by a reference to the 6th section of the act, it will be seen that it has no application to the present case — Besides, in that case, the signature only was omitleu — the seal having been affixed. The seal is what gives authenticity to the process, or order of the Court; and therefore it was very Correctly said in that Case, that the omission was but informality. The second branch of this exception rests om, evidence contained in the depositions taken on notice, and filed on the argument before the Court of Quarter Sessions, and returned with the récord to this Court. After the most careful and attentive consideration of the depositions, it appears to me that such acquiescence or-agteement as would amount to a waiyer of the objection, Has not been satisfactorily proved.

The second exception is, that no order such as was made by the C'ourt of Quarter Sessions on the 12th of August, 1829, issued to the re-reviewers at that time. This objection is contradicted by the record itself. The order made, by the Court was general and in the usual form, and it is so issued to the ré-revifewers.

The third and fourth exceptions'may be considered together. They both depended on matters in pais, which it was the province of the Court of Quarter Sessions to decide. Great latitude must be allowed to viewers in locating a road — particularly as respects the ground, which they may deem the most suitable. These exceptions were not, however, as 1 understood, insisted upon -in the argument.

The fifth exception is that the re-reviewers were not sworn before they performed the duties o.f their appointment. This exception is fatal. By the 3d section of the act of the first of March, 1S15, Purd. 733, it is provided, “ that all viewers of roads, &c., shall, before they enter upon the duties assigned them, take an oath or affirmation, &c. that they will perform the duties of their- appointment with impartiality and fidelity,- &c.; and it shall .-be the duty of the clerk of the Quarter Sessions, from which such’order of view shall be issued, to.direct therein, that the reviewers thereby appointed, shall, before they enter upon their duties, be respectively sworn or affirmed.5’ The language of this act is clear and explicit, and too plain to be misunderstood. The viewers are directed to be sworn or affirmed before they enter upon the duties of their appointment. What are the duties of their appointment? Certainly the most important part of their duty is carefully, to view and examine the ground, over which the road is asked to be laid, as well as the ground adjacent thereto. The public is much interested in laying, out roads. The expense of opening them and keeping them in repair, together with the injury which the proprietors of land over which they pass, frequently suffer, require that the viewers should perform their duties under the sanction of an oath or affirmation. Experience proves, that there is no duty which persons are called upon to perform, that requires more firmness in the exercise of it than the laying out of roads; and so essential did the legislature consider the swearing of the viewers before entering on their appointments, that out of abundant caution they have enjoined the clerk of the Sessions to insert in the order, “ that the viewers shall be sworn or affirmed before they enter on their duties,” lest it might be omitted through any neglect or inattention. The act, indeed, leaves nothing to construction, it cannot be evaded. The oath must be administered before the viewers enter upon their duties — and if not, its injunction is expressly disregarded. It makes no difference, whether their duties are judicial or ministerial — the written law must be complied with.

In this case it is clearly proved by the depositions returned with' the record, that the re-reviewers were not sworn until after they had viewed the routes, and had returned to the house. They therefore' acted in violation of an express provision of the act of assembly, and the proceedings must be quashed.

Proceedings quashed*