author: G-ibsou, C. J.

text:
    LODGE against SIMONTON.
    Whatever puts a party upon inquiry amounts to notice,‘provided that inquiry he» came a duty, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding.
    Appeal from the Circuit Court of Norihumhp'land county, held by Gibson, Chief Justice.

    This was an action of ejectment, in which the heirs of Jonathan Lodge, deceased, were plaintiffs and Robert Simontori, was defendant. '
    Previously to" 1770, Samuel Hunter and Jonathan Lodge, were the owners of three applications for three hundred abres each, in the names of Hunter, Spencer and Popjáy. ■ In that year surveys were made upon these applications, and afterwards re-surveys were made,«and the location'of one or all of them changed, so as that a body of land of twelve hundred’ acres, was included within, ,the surveys. This it appeared was done for the purpose of preventing the location of any other application or warrant upon any part of these twelve hundred acres, so that Hunter and Lodge might appropriate the whole to themselves. In 1773, they obtained a warrant in the name of Gailey for three hundred acres, which was executed in the same year by Charles LuJeens, and located within the bounds of the twelve hundred acres. Another .survey was made upon this warrant in 1790 which located it upon a.different tract of land, but still within the twelve hundred acres. This survey was made by Samuel Hunter’s executors. '

      The following diagram exhibits the whole four tracts, and how they were appropriated at different times:

    There was nothing upon the title papers, which show.od that Lodge, had any interest in these lands. - In his life-time, Hunter gave tract marked No. 1, to hie nephew William Wilson, who1 procured it to be re-surveyed as the Spencer tract in 17S7, had it patented and sold it to Simonton the defendant. No. 2.» Hunter also sold in his life-time, to the corporation, “-for the relief of Presbyterian Clergymen.” No. 3, Hunter and Lodge, sold to Dough-erty in 1774. In 1784, Samuel Hunter died, having first made his last will and testament in the same year, which contained this clause. ■
    “And I do hereby order and direct that the plantation and tract sold by Mr. Jonathan Lodge and myself to George Dougherty, that the remainder of the moneys due to me, arising from that sale, be appropriated by my executors to, and for, the payment of my just debts, my share thereof amounting to one hundred pounds after deducting the moneys necessary for patenting the same: and I do further order and direel, that the plantation and tract of land in Turbut township, near to Mr. HeioelVs, taken up by Mr. Lodge
      and myself, to be sold by my executors, and the sum of £24 3 5. paid by me for warranting the said tract, is to be refunded and paid by Mr. Lodge or. his executors, before he. can, or may be entitled‘to any share or purpart thereof.. A.nd'as to the residue of my estate, both real and personal, I hereby give, devise and bequeath the same to my beloved wife Susannah, ^and my two daughters Nancy and Polly, and to them heirs and assigns forever, as tenants in common.”* ■ • • ’

      Hunter’s executors did not sell the tract of land “in Turbut township, near to Mr. Haoctt’s, &c.” ás directed by the will, but the residuary devisees, sold the same to Robert Simonton, the defendant, in 1810.' There was nothing in the.evict etice, which shewed that Simonton had notice of the sales of tracts No. 2 and1 3, having beenmadeby Blunter in his life-time. There, was á great deal of complicated evidence In the cause, but the foregoing statement of facts, will sufficiently, explain the1 only important question which arose, and was decided by the court. Whether or not the will of Samuel Hunter, under which Simonton claimed, and the other circumstances of the case, were notice to him of Lodger's title to one-half of the land in dispute? His honor being of opinion,.that it was, so instructed the jury; who found a verdict accordingly for the plaintiffs. The defendants appealed.

      S. Hepburn and Bellas for appellants.
    Thc.opinion of the Supreme Court, heretofore delivered hy Justice Duncan,
       does not settle'the question, of notice, unless the jury should first find the fact that, the will refers to this tract of land; if it did not, it gave no notice. Upon the three applications, without the payment of purphase money, a'nd contrary to law, four tracts -were surveyed. If, therefore, 'Colonel Hunter clouded the truth, so as that what tract he referred to in his will, was uncertain, it was so uncertain, and made so by himself, that it would not be notice to Simonton, who is therefore an innocent purchaser, without notice. When the will was made, undoubtedly the Gailey warrant was not laid upon the land now in. dispute; suppose,' then, the warrant, and in addition thereto the survey upon it, were recited in full by the will, ■ and Simonton had 1 procured from the office copies of them, and laid them before him; would he not have found •that they had no reference to the land in dispute? • And would not any lawyer have advised him that he might safely buy?
    The law being that constructive notice must be explicit, clear and certain, Heist cry. Fortner, 3 Bin. 40. Billington v.Welsh, 6 Bin, 129, how can the will of Samuel Hunter be construed to be notice to Simonton. But it is said, it was designated as adjoining HeweU’s; so did another of the-four tracts; on which side of HeweU’s did it lie? for two tracts adjoining HeweU’s may be miles apart. It is said, that the fact is, that Hunter, in his lifetime, had sold the Other three tracts; and therefore the will Could referió none but the land in dispute. Is-this argument sound? How,was Simonton to know that he had • sold' the other three tracts? Was'he to .run through the, county to hunt up .notice? Were the deeds upon record? Where was he to go? In fact,.it appeared on the trial, that Colonel Hunter, had given one of them to his nephew, for which he had not made him á deed- at all. Is ■ this the clear, certain, explicit notice which the law of the cases cited requires?
    As between themselves, they i>my call their.survey what they please, and call while-acre black-acre, and black-acre white-acre, so long as it affects no one but themselves; but when one of the co-tenants sells his interest, and a thiid person comes in, either the one co-tenant or the other may suffer the evil consequence of the confusion created by them; but it shall not bo visited upon the innocent purchaser.

      Bonnel and Greenough for appellees.

      Hunter and Lodge, being the owners of three applications and surveys, and subsequently, of á warrant and survey, it was a matter of no importance to any one, nor is it an important fact to any ques-lion of law, which arises in this.case.. -That they shifted them as to name and location; that they called Spencer Hunter and Hunter Gailey,. and Gailey, Popjay .* they were tenants-in-common. of the whole. ’ As to Simonton this circumstance could have created ho confusion; for'at the time of Hunter’s.death, he had disposed of. three of the tracts, and had but one left, and orié of the three Si-monto'n himself had .purchased. The deed from the devisees of Hunter to Simonton recited the will, and that will gave explicit notice, that Lodge was half owner of. the land in dispute. The will designates the land as warranted, and adjoining Hewett’s; and under this'very Gailey warrant, which was the only warrant ever Colonel Hunter owned, Simonton procured the land in dispute to be patented. • Add to this, that Colonel Hunter owned no olhertract of land at the time of his-death, and what notice could be more certain, than that which the will gave; At all events,' was it not all that the law requires, — that which should put a prudent man upon inquiry as to the title? ■
    Ross, J. — In this case, the third and fourth reasons assigned for a new trial, will only be considered at this time' by the court. ■ The following is the provision in the codicil to-the will of Samuel Hunter, upon which depends the decision of these exceptions:
    *££I do hereby order and direct, that the plantation and tract sold by Jonathan Lodge and myself, to George Dougherty, that the remainder of the moneys due to me arising'from that sale, be appropriated by my executors to and for the payment of my just debts, my share thereof amounting to one hundred pounds, after deducting the moneys necessary for patenting the same. And I do further order arid direct, that the plantation and tract of land in Tur-but township, near to Mr. Hewett’s, taken up by Mr. Lodge and myself, be sold by my executors, and the sum of £24 15. paid by me for warranting the said tract, is to be refunded and paid by Mr. Lodge or his executors, before he can or may be entitled to. any share or purpart thereof.”
    This codicil is dated the 29th of March, 17S4. I cannot perceive-in what respect the. provision in this codicil, hás any’ application to the land in controversy, or how it can.be considered descriptive of' it, so as to amount to a constructive notice to Simonton wA others. It is certainly not such a description, as, if .’contained in a warrant, would locate itself. Would it then, if in a warrant or location, be constructive notice to a subsequent warrantee? The'will describes' it as a plantation and tract of land in Turbut township, near to Heioett’s. But how near to Heiuetf’s? Was it near to Hewett’s on the north, south, east or west? Again, ££it was tallen up by Lodge and myself. ” A ccording to the evidence, there were three other tracts in the immediate vicinity, or adjacent thereto, taken up by Hunter and Lodge, to which the same description would lmvc been' equally appropriate. But further, the'will says, “it was a tract for which Hunter had paid “for warranting 4324,15.” This however, was to be refunded by Lodge, or his executors, before he could be entitled to any share or purpart. theredf. It appears to me, there is nothing in this codicil, from which notice to Simon-ton, that Lodge had an interest in- the particular land in dispute, can be fairly inferred. A history of the transactions; respecting this land, as collected from the evidence and admissions of the parties, relieves, I think, the point from all doubt.
    From this it will appear, that by the shifting of the surveys, and the transposition of the names of those, making the' location, to tracts, different from what they called for by the first set of sdr- , veys, all was not honest and fair, but that the intention was to render the appropriations and surveys so confused, as to place it beyond the power of any bona fide settler to ascertain; vyhether any, and if any, what part of the tract of 1200 acres had not been su'r-r veyed by proper authority, and remained unappropriated. . And in this they succeeded. It was a fraudulent attempt to. exclude all others from the exercise of a legitimate right, to prevent the improvement of the country, and appropriate to themselves that which did not belong to them. To sanction such conductj would be contrary to the soundest principlesuf morality,- and would aid the efforts of unfair practices. - •
    I am unable to find any thing in -the whole transaction, that would make the codicil in ihe will notice to Sirnonlon, that one-half of the tract in question, was owned by Lodge.. There is a difficulty in defining with any degree of precision the rules, which govern implied or constructive notice. No general rule can be laid tiovvn, equally applicable to every case, but it must be regulated in a great measure by the circumstances of'the particular case. The doctrine, however, generally adopted, is, that whatever .puts a party upon inquiry, amounts, in judgment’of law, to notice, provided the inquiry becomes a.duty, and would leadho the knowledge of the requisite fact by the exercise of ordinary diligence, and understanding. 4 Kent’s. Com. '172. In Heister-v, Fortner, 2 Binn. 40, it. has been hold, that the registry of a deed, defectively proved or acknowledged, is not constructive ■'notice to a.subsequent purchaser, although the registry be made in the proper county. There could not be a case affording a- much, stronger implication of actual notice, than a deed thus recorded. Still it was decided not to*amount to constructive notice. So also in 20 Johns. Hep. C59, a dejiosil of deeds and conveyances, pursuant to'an act passed “to the end that persons inclining to-have recourse thereto, might inspect the same,” was decided not to amount to legal notice, to subsequent purchasers.' See also h Binn;\%Q', Billj,úgtonv.. Welsh, In James v. Morey) 2 Gavien, ifrhas'.been. held, that the registen-ing a deed-of conveyance-, is'.not'notice tola-subsequent-purchaser, except in pases wher'e its .registry is: made necessary by statute- — • thus for-, example, j registering a sheriff is deed-would not'-be notice in that state., -jSo a-lsoin the same casé, it .was, decided, that the'recording an assignment of-a mortgage, is no notice to á mortgagor; so as to render payments' by him-'to-the mortgage-in’his own wrong — because, the recording ah assignment is not within any of the general registry, acts..’ ■ 2''Cowen, 246. It is not my.intention to enter h)tb an examination of the numerous cases that are to be found-in the books art the subject of notice. • Justice Duncan, in delivering the opinion of this court in Peebles v. Refilling, 8 Serg.; & Rawle, 4&6.,. Has-gone-fully-into1 the question, and.-pointed out the various-kihd-s-,-of. notice?.and the difference between them.■ He says,-“that the true,ground-in all. cases..for determining the question of notice, is,-that in itself it is a -spécies.'of "fráúd,'and^tákes away the bona.Jides of the’purchasef, and puts him in mala fide.35 See’also 2 Equity Cases, 6S2. r Wash. 4. ,
    ■ It seems clear,,'that-there is nothing in the-case before us, that-can amount’fo notice," when-tested by the principles established in the cases just-cited.".--In the controversy,-'to such-V state of inextricable confusión, was. the-whole transaction reduced.hy-Ladgé and Planter, that no‘manj not even John'Sptricer, ’could sa'y'which'tract was legally appropriated*'' For' oh the ,-é 6-th- of.'January, 1785, a patent was-.granted to William Wilson, for-3'27Aacres,' the premises in question,; which had been; conveyed to him hy.a-.dee'd-polT from John ’Spencer. ■ .But in 1787, ''a re-surVey* was- Made by order of the. board of- property, at the instance of. William - Wilson, by which Spenp.eP.s- survey wds. removed to. No. 1," where ft had been originally laid ou'tj and .a patent, was-granted to >Wilson for that. The fact, tjrai-Spencer, himself, could not-tell the original situation of his survey, or which, tract had been.appropriated^ is-ample evi-de'nc’e-thafr.there-is nothing in the will of-Homier, which was then proved, that could'by-ofdinary-diligcnc’e ,an'd' understanding,-lead ■ to the discovery'of- the. lot .that ■ was designated, -or. intended to-be desigiiatech thereby1 There is nothing in'the.whole transaction, ‘‘that-takes .aiVay. tlié&ona Jidés oí Siih.onton, the- purchaser, and puts'him'm malafidje.”/ ■/ •'
    Are not bona.’fide purchasers for a Valuable consideration, without notice,..entitled to protection 'against secret trusts? and is not' Simonton such a purchaser?. The heirs.of Lodge certainly, are not. » such. • But if .they -are- to be considered; in the light of purchasers, for a valuable consideration — if both, plaintiffs and defendants have their - equities,;máy not,the equity of the one, be greater than the equity of the other? And is it not a familiar principle, one equal» ly consonant to common honesty and common sense, that he, who has the greater equity, must be preferred to him, who has the lesser. It cannot be pretended, that the heirs of Lodge have a greater equity than their father would have had, if living. What then was his equity? Tlie warrants were talcen out, and surveyed in the names of Hunter, by Lodge’s consent. He authorized Hunter to sell the land, or to dispose of any equity he had in it: and after a deduction, Lodge was to receive one half of the purchase money. This appears by the very evidence, which the plaintiff produces from Hunter’s will, to prove constructive notice. But did his lien continue on the land for his share of the purchase money? His suffering the warrants and surveys to remain in the name of Hunter, as the real owner of the land, with an understanding, that he should sell the same; and at the same time, rendering the appropriations uncertain and confused, was acting mala fide towards the proprietary, and persons desirous of making appropriations, according to the customs and usage of the land office. If Lodge did authorize Hunter to sell, would he have any more lien for the purchase money, than Hunter himself: and certainly Hunter had none; though he had a legal estate, which could only be divested by legal conveyances. Whereas, Lodge had, at most, only an equi - table one, which might be lost by abandonment, or relinquished by acts inconsistent with any assertion of an equitable title.

      Iu Lewis v. Madisons, 1 Munford, 303, it was decided that the rule that a purchaser is bound by notice, does not apply to a lien claimed under a written contract, so vague and indefinite as not to designate, with any certainty, the specific land in question. In this case, the description of the land, (if description it can be called,) contained in tlie will, is certainly too vague and indefinite to designate, with any certainty, the specific land in question, and therefore' cannot be notice to affect the defendant in any manner.

      Simonton has the legal title. Upon what principle can it be contended, that he holds one hal in trust, for the plaintiffs? He is not a trustee, by the express provision of either any written or unwritten contract. The plaintiff’s case is no( a resulting trust. If the defendant is a trustee for the plaintiff, for one half of the land, it must aspring from circumstances attending the transaction; as accident, mistake, or fraud, which of themselves, form actual ground of Chancery’s interference — inducing it to imply a trust, from what it ascertains to be the conscientious duty of a party: and thereupon, in accordance with its general principles, to compel the performance of that, which rational justice demands.” Jeremy’s Equi. Jur. 94. In this case, there is no allegation of accident, mistake, or fraud, and therefore; the plaintiffs hare no claim arising under these principles. I am clearly of opinion, that relief could only be granted on account of fraud; and that fraud, consisting of a purchase with notice of the trust, must be made out, by clear proof of what would amount to actual notice. It should not be a mere rumour or knowledge, but a notice susceptible of positive proof, or what is the same thing, a precise and definite recital in some of the deeds, under which the defendant deduces title, of the trust. The interest of the trustee, and the property subject to the trust, should be designated, with such certainty, as to be easily applied to the land, held or alleged to be held under it. I am opposed to extending the doctrine of constructive notice, particularly against a bona fide purchaser, for a valuable consideration. A clear case should be made out, and parol evidence received, with the greatest caution. In the case before us, the jury should have been so instructed. The evidence did not warrant the charge, that Simonton had constructive notice, through the will of Hunter, of the interest of Lodge’s heirs in the ¡and. The court were correct in saying, "that in the will, no particular tract is referred to,” and should have added, therefore, too vague and uncertain to be notice, to a purchaser of any tract. We are, therefore, of opinion that a new trial should be awarded.

       Thomas Yotjng et al. in error, "Y Writ of error to the Common Pleas of v. > Northumberland county-' — present, all the Rohetit Simonton and other, j judges.
      Duncan, J. — Delivered the opinion of the court.
      • Plaintiffs and defendants claim, under a warrant to James -Galley of 24th September-, 1773. It would appear that this warrant was taken'out, and paid’for, by Samuel Hunter, who obtained a deed-poll from Galley. The legal title is deduced from Samuel Hunter, to the defendants who hold the patent; and if they are purchasers without notice, hold it discharged of any alleged trust. But the plaintiffs, the heirs of one Jonathan Lodge, pretend that' the land was taken iip for Samuel Hunter and Jonathan Lodge; and that the defendants purchased, with notice of that fact, or at least, with the means of notice, by the medium of the title, under which they claim. Samuel Hunter being seized of the legal title, in 1784, by a codicil to.his will, devises as follow, (here his honour read the clause on which the question turns ) On the 14th of May; 1810, Alexander Hunter, and Mary his wife, and Mary Scott, ,the children of Samuel Hunter, and his widow, grant the land (prout the deed) to Robert Simonton one of the defendants. The only point respects the l’ecognition of the right of Jonathan Lodge, by the codicil to Samuel Hunter’s will. As to that, the «aurt instructed the jury, that there does n.ot appear any thing, in the will of Sam*

        uel Hunter, that could affect Robert Simonton or any. Claiming undér him, with’ legal notice of any claim of Jonathan Lodge, for that it would appear that Lodge was entitled .to the proceeds of some land, but not the land itself
      Whether or not the .clause-in the codicil, directing that the plantation and tract of land in Túrbut township, near to Mr. IJewetfs, taken up by Mr. Lodge and himself) should be sold by. his' executors, and the sum of J324 15 paid, by him-for warranting the said tract, to be refunded, and paid by Mr. Lodge, or his executors, before he could or might be entitled to any shave or purpart thereof", applied to the tract in dispute, was a matter offagt, to be decided by the jury. If they found it to apply, its operation as notice', was, matter of law. This clause acknowledges the right of Lodge. ■ It states that the land- was taken up by Lodge and Hunter; that the tract lay in Turhut township, and near to -Mr. Ilcweti’s' as this tract does; -and on the purchase money being refunded by Lodge, or his executors„reoognizes-his right to-a share Or. purpart of it. It was notice,of a trust. The-conveyance, though the grantors describe themselves as heirs at law, yet states the will and the .devise- of the tract in dispute, to his widow and heirs at law, and refers specially to the will: “as in and by his will duly proved, anil remaining in the register’s .office at Sunbúry, recourse being thereunto had appeal’s.” The title to Simonton is "under .the will. The' grantors did not Qlaim as heirs at law. The widow Sarah could not be. heir .at law- of her husband the testator. They did not claim the -estate as .one descending on them. There was no intestacy, and they did not take- under the will as heirs, but the widow and the child2’cn, Under the residuary devise, take as tenants In common. They take by purchase, tecáuse they take a different estate) of at least different portions of the estate, from that which would have descended to them. ■, The widow takes not by descent; the children. take not by descent, for they take only two thirds. By descent, they would have taken the whole. At any fate tile conveyance, by the recital of the will and the devise, and by a direct reference tp the will as the source from which the grantors ’declare they derive their right, was sujjiiiaji' to put the vendee m art inquiry;’ and in all cases,-where a purchaser cannot make out a title, but by a deed,'which leads him to another fact, whether by'description of the parties, recital, or otherwise, he will b.e- deemed- cognizant thereof; for it was a-dssa.ncgligentifi, that he sought not for it. And for the same reason, he is bound, by the whole of its contents. Sugd.- Vmd. 499 566. The will had given notice of the trusts, and the purchaser was boiind.to take notice what the trust was. The lessee of Willis v. Bucher, 2 Binney, 499, establishes this doctrine of notice, in its fullest extent. - It was th^re decided, that the purchaser, under a patent, is bound to take notice of a will, recited in a patent, and is affected with notice of what appears on the title, unless it is contrary to thtí patent. The patent showed the devise to.be in fee-simple. The will only gave an. estate tail. The judge who delivered ’the opinion of the court, observed that the will was recorded, and it was the fault of the ■ purchaser, not to examine it. The court below, in the case at bar,, though they ' stated the.Jaw accurately, as to the effect of notice, yet when they instructed the jury, as to the notice afforded by the codicil to the purchaser, they fell into error. Tor they said that there docs not appear any thing in the'will, which could affect Bobert Simonton, or any one'holdirig under him, with legal notice of any claim of Jonathan Lodge to the land; and they assigned this reason for tlicir opinion — that it would appear that Lodge was entitled to a share of the proceeds of some land, but not to the land itself. Now it is evident that the right of Lodge to a share or purpart of the laud itself, was recognized by the testator. This right is founded on their having taken up the land together. One of the usual terms on which .land is taken up in partnership, is an equality of division by'a line between the discoverer and the person who pays the purchase money and lakes out- the warrant — a condition adopted hy Hunter and Lodge,

        If Hunter and Lodge were interested in Galley’s warrant and in the.lands located on it, then the codicil gives notice of their interests, if from the description of the trad as stated in the will, the jury 'should find it referred to that tract. But the jury were, informed that lot it apply or not apply, the codicil did not give notice of an interest in the land itself, but only in the proceeds — a construction clearly erroneous; far whatever the interest of Lodge might be, having notice sufficient to put him on an inquiry, or notice of the trust, he was bound to take notice what the trust was.

      Judgment reversed and a venire de novo awarded.

   G-ibsou, C. J.

Decisions on the effect of defectively registered conveyances, deposit of title papers, and most of the others that have been adduced, shed but little light on the subject before us, which belongs to another branch of the law of constructive notice. The only apposite rule in the books is, That a purchaser shall be affected whenever there was enough to lead a vigilant mind to a knowledge of the truth; and consequently, that he should be presumed to have known every thing of which any part of his title afforded an intimation; for not to follow the truth, when put upon the scent of it, is undoubtedly gross negligence. And this I take to be the rule in Pennsylvania, as well as elsewhere; for that a loss incurred from ignorance, shall be borne by .him who had reason to suspect, and yet refused to investigate, rather than by one who is chargeable with no want of vigilance whatever, is consistent, not only with precedent, but the immutable principles of reason and justice. Nothing can be more vague and imperfect than the information afforded by the equivocal fact of possession; yet it is held, that the naked possession of one who has purchased the estate, even though he entered as a tenant, is constructive notice of his equitable title as a purchaser. Sugd. Vend., 744. Why should the rule be different in regard to circumstances that serve to identify the subject-matter of the conveyance? If it is meant to be asserted in the opinion just delivered, that no description may be sufficient to point the attention of a subsequent purchaser, but such as, if used in a warrant, would dispense with a survey, or, as it is said, make the warrant locate itself, I have only to say that the doctrine is new to me. Very different was the notion of Chancellor Kent in Green v. Slayter, 4 Johns. Ch. 45, 46, who, so far from requiring absolute, or even convenient certainty, charged a purchaser, on the principle of lis pendens, with constructive notice of the trust, where the property was described in a bill in equity, as “divers lands in Crosby’s manor;” a description certainly much less specific than the one in the codicil before us. The argument there, was as it is here, that there was nothing in the description which pointed directly to the land. “It is true,” replied the Chancellor, that there might have been divers lands in Crosby’s manor, held in trust by Winter, (the vendor,) and yet the lots he sold to the defendant have been held by him in his own absolute right. But though this was possible, it was an improbable fact; and if ever a bill contained sufficient matter to have put a party on inquiry, the bill of 1809 answered that purpose. The doctrine of Us pendens is indispen-sible to right and justice in the eases, and under the limitation's, in which it has been applied; and according to the observation of Lord Manners, we must not suffer the rule to he frittered away by exceptions. Was it too much to have required of a purchaser charged with notice of all the facts in the bill of 1809, to have called on Winter to disclose the source of his title? The general rule of this court is, that whatever is sufficient to put the party on an inquiry, is good notice in equity. Lord HardwicJee in Smith v. Low, 1 Atk., 489. The least inquiry, even of Winter himself, would have satisfied the purchaser that'the lots he purchased, were parcel of the trust lands mentioned in the bill. ” Was not the necessity of such an inquiry equally obvious and equally imperative in the ease before us? I am relieved from the task of weighing the authority of Chancellor Kent in the preceding case, against that of the court in Lewis v. Madisons, 1 Munf., 303, as there is no essential discrepance between the two cases. In the latter, the contract had not only no apparent, but no actual connection with the land in dispute; and the generality of the expressions used in regard to it, is'to be qualified by the consideration that they were predicated in relation to the particular circumstances off the case. The description was of “land willed” to the partjr contracting, when in fact no land had been willed to him, so that an inquiry by a purchaser would have led to nothing, even had the words embraced, as some of the judges seemed to think they did, land expected to be willed to him; and a majority put the ease expressly, on the ground that an inquiry would have been fruitless. How different in that respect is the ease at bar. A glance at its circumstances will show that an appli • cation of the warrant to any other than the tract in dispute, was, in the words of Chancellor Kent, if possible, a very improbable fact. It was more — it was absolutely impossible. The defendants are compelled to resort to Hunter’s will. If they discard that, they disclaim his title; for it was determined, when the cause was here before, and on ground not to be shaken, that the persons from whom Simonton purchased, had not the land by descent, but as residuary devisees. Simonton was therefore bound to inspect the codicil with the will; and what does it contain? It contains an explicit declaration that “the plantation and tract of land, in Turbut loiunship, NEAR to Me. Hewitts, was the joint property of himself and Lodge.” Now I should suppose it enough to put a purchaser on an inquiry, that the land is described to be in a particular township, and near a particular occupant, though it be not specified whether it be near him on the north, the south, the east, or the west; and even though the party had other lands in the same township, that equally answered the description, which, however, it will be shown, was not the case here. It is precisely in such a case that an inquiry into particulars not before mentioned, becomes proper to remove the possibility of misapprehension by distinguishing with perfect certainty the subject-matter of the contract. Hut it is a most important, and, as it appears to me, a decisive feature of the case, that this was, not merely the only tract which actually adjoined Hewitt, but, as I have already intimated, the only one owned or possessed by the testator at the date of the codicil, which answered the description in any one point or particular; for the other three tracts, in the names of Hunter, Spejicer and Popjay, had been sold by him years before, and it would have been impossible for any purchaser, let the peculiarity of his apprehension or power of combination be what it may, to imagine that the testator was speaking of any of them, when he was directing the particular tract to be sold by his executors. Whatever ambiguity there might have been in the declaration of the testator, if made in relation to the state of things that originally existed, or if he had continued to hold all the tracts, there is none at all, when it is considered that he had but one tract at the time to which it could bo applied, and that he does not appear to have had another inch of land within the township. That this is the tract in dispute, is not controverted, for it is agreed that he had no other at the date of the codicil, to which it could be applied. He and Lodge had surveyed 1200 acres on three locations, of 300 acres each, in the names of Hunter, Spencer and Popjay, which had been occasionally shifted from tract to tract, in order to cover the whole, and protect the excess, beyond what they could lawfully hold on these rights, from appropriation by other applicants. The unfairness of this manage * ment, has a tendency to prejudice the judgment against the plaintiff’s right; and it is therefore not surprising that the defendants have had the benefit of considerations that could be legitimately urged only in favor of a title adverse to that of Hunter and Lodge. But however fraudulent their conduct may have been in relation to the public, it must be obvious that it affords no ground of defence in an action between themselves, or persons standing in their respective places; and it is to be held in remembrance that the very question here is, whether Simonton is not to be treated as standing in Hunter’s place. The shifting of these locations, then, is to be treated as inoperative, further than that as it may have served to enable Hunter’s devisees to conceal Lodge’s right. The Gailey warrant was at last procured to cover the residue of the land, but surveyed on what is called the Hunter tract, which is not the one in dispute; and hence the point of defence made at the bar; that Hunter’s admission of Lodge’s rig-lit, being made in reference to a title by warrant, may possibly have been understood by Simon-ton, as predicated of the tract originally surveyed on the Gailey warrant: in other words, that as the codicil referred to a warrant originally laid on a tract appropriated to the Hunter location, the admission may have been understood as made in reference to that tract. To say nothing, at present, of the undisputed fact that this tract had been sold by the testator himself, perhaps some ten years before, to the corporation, for the relief of poor and distressed Presbyterian clergymen, I shall, for the sake of the argument, admit the possibility of such a misapprehension, and then ask whether it could be founded on facts and circumstances so unambiguous and leading to it so irresistibly, as to have silenced all suggestions of the propriety of further examination. In the first place, the misapprehension must have Been founded on the gratuitous assumption that the Gailey warrant was particularly alluded to. No expression in the codicil authorizes such a conclusion; yet it is the foundation of the hypothesis. The clause is in these words: “And I do further order and direct, that the plantation and tract of land in Turbut township, near Mr. Hewitt’s, taken up by Mr. Lodge and myself, be sold by my executors; and the sum of ¿624.15, paid by me for warranting the said tract,-is to be refunded or paid by Mr. Lodge, before he can or may be entitled to any share or purpart thereof.” It will be perceived that the argument is, that Simon-ton may have taken the admission of Lodge’s title to refer to the Gailey warrant, and through it, to the Hunter tract on which it had been laid. A sufficient answer might be found in the fact that the other parts of the description are altogether inconsistent with that supposition, as that tract was the very furthermost one from Hewitt, instead of being near him. But there is nothing in the clause to indicate the Gailey warrant in particular, the description being not of a warrant, but a tract of land designated by its situation in regard to a particular owner, the species of the title being mentioned incidentally, and for a different purpose. There was no pretext, then, for an assumption that a tract was meant different from that which was otherwise described. But granting that Simonton may have had reason to suspect, what happens to be true in fact, that the Gai-ley warrant was actually meant, yet the supposed cause of his imputed misapprehensions as to the particular tract to which it was applicable, depended entirely on extrinsic circumstances; and if these may enter into the case to give color to the existence of a mistake, they are proper to be used in order to repel it. Now if Simonton had known of the application of the warrant to the Hunter tract, previous to the date of the codicil, it is reasonable to presume he knew, not only that the Hicnier tract, but all the others, had been sold by the testator in his life-time; for the argument supposes that he was acquainted with the management of these lands, and consistently with that, he could not have been ignorant of the fact that both the Gailey warrant and the testator’s admission of Lodge’s title, were inapplicable to any other tract than the only one of which he retained the title, because he was directing the tract of which it was predicated to be sold. The possibility of his being-ignorant of the previous sales by the testator, will not help him. Instead of acting on imperfect information, when better might have been had, is it too much to require him, in the language of Chancellor Kent, to have called on the vendors to disclose the source of their title? Purchasing under a will that recognized the existence of a trust estate which might as described, exist in the land he was treating for, and this without*inquiry pr examination, he ought, it seems to me, to be taken to have acted on his own responsibility. But there is enough in the case to demonstrate that the vendors actually did put him in possession of the origin of their title; the proof of which lies in the undoubted fact that he purchased the Gailey ivarrunt along with the land, as its appropriate and only title. What other title had the vendors to exhibit? The Hunter location had been sold by the testator, as already remarked, to the corpoi’tion, for the relief of Presbyterian clergymen, and the Popjay location had been sold by him and Lodge to Dough-erty; added to which, the Spencer location had been given to Wilson, and conveyed by him in 1790 to Simonton himself, who, if he did not get the Gailey warrant, as the title of his purchase in 1810, consented to pay for the land in dispute, without any title at all — an instance of negligence too improbable to be credited, or, if credited,‘too gross to entitle him to indulgence. But it was not pretended at the trial that he got any other title. On the contrary, it was exhibited as the foundation of his patent, and the origin of his right. It is immaterial, then, what may have been his previous misconceptions of the locality of the Gailey tract, as he could .not believe when he paid the purchase money and received the conveyance, that the admission of an interest in the Gailey warrant, related to any other tract than the ohe to be held by the warrant. If he had ever entertained doubts of it, in consequence of a knowledge, that it had once been applied to a different tract, they were susceptible of an easy solution by information, that its destination had been changed, as was perfectly competent to the owners of it, before survey returned. And we are to suppose, that he actually had this information, and was satisfied with it; or that if he had it not, the want of it is imputable to his own carelessness. The matter, then, is reduced to a simple dilemma. If the admission of Lodge’s title is referrible to the particular tract; Simonton, who purchased it under the will, is to be affected with notice of it. But if it is referrible to the Gailey warrant, then being a purchaser of the Gailey warrant also, under the will, he is equally to be affected. If it is referrible both to the specific tract and the warrant, he is surely to be affected as he is a purchaser of both.

In conclusion, it remains for me to express a dissent, as to the existence of a fact in the case as stated by the judge, who delivered the opinion of the court. It is assumed, as having been proved, that Hunter was authorized by Lodge, to sell his equity along with the legal title. If that were so,' the plaintiff would be postponed on a ground very different from the want of notice. But of the fact, there was no other proof than what may be thought to arise by inference from Hunter’s direction to his executors to sell, for he has no vriiere said that Lodge gave him authority; He doubtless supposed he could make title without any particular authority as he had the legal estate. But a very different view of the Codicil, was taken when the cause was here before, the judgment of the court below, having been reversed for misdirection in charging that the plaintiff’s were entitled to the proceeds of the land, but not the land itself. It seems to me, too, the very point mooted now, was ruled then, it having been determined that the codicil was constructive notice of the trust, and that all which remained to be decided, was a question of fact, whether the description in the codicil were actually applicable to this particular tract ■ — a matter that never was disputed, nor could it be, for the Gailey warrant and the land in controversy were the only title, and the only tract that remained subject to the testator’s power. With an unfeigned respect, then, for the judgment of my brethren, I may be allowed to say, that I retain an unshaken confidence in the opin • ion 1 delivered to the jury.

Judgment reversed and anew trial awarded.


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    SHAW against THE TURNPIKE COMPANY.
    When a contract is entire, before any recovery can be bad of tiie consideration money, the plaintiff must prove, that Ue lias performed, or is ready to perform bis part oi the contract; or that the performance was prevented by" the defendant.
    Time may be an essential part of a contract, cither from the nature of the transaction, or the subject-matter of the agreement.
    Time may be made a material and essential part of a contract, by the express undertaking of the parlies, as well in equity as at law; and when so, must be as strictly observed in equity as at law.
    Either party may waive any right introduced into or provided by the contract, either expressly or tacitly, by acts or declarations, fairly indicating a relinquishment of any provision or part of a provision, and without the performance of which, unless relinquished or waived, a recovery could not be had. In all such cases the facts are for the ■determination of the jury; but whether, if established, the.;amount to a . waiver, is a question of law.
    Appeal from the Circuit Court of Mifflin county, held by Justice Huston.

      , This was an action of debt, brought by William Shaw against the Lewistown and Kishacoquillas Turnpike Company,

    The plaintiff filed the following statement:
    “The plaintiff’s demand, in this suit, is founded on the following instrument of writing, a copy of which is hereto annexed, and made part of this statement, and for work and labor for the Lew-istown and Kishacoquillas Turnpike Company, by Robert Gamble, in his life-time, and William Shaio, plaintiff, who survived Robert Gamble, in pursuance of the aforesaid instrument of writing, ‘Articles of agreement made and concluded this third day of June, in the year of our Lord one thousand eight hundred and fifteen, between the president, managers and company of the Leiois-toion and Kishacoquillas turnpike road of the one part, and William Shaw and Robert Gamble of the other part
    ‘Wituesseth, that the said William Shaw and Robad Gamble, for, and in consideration, of the covenants hereafter mentioned, on the part of the said president, managers and company of the said road, do, by these presents, for themselves, their heirs, executors and administrators, covenant and agree, to, and with the said president, managers and company, their successors and assigns, that the said William Shaw and Robert Gamble, will, at or before the first day of September, one thousand eight hundred and eighteen, malee, and finish, in a complete, substantial and workmanlike manner, that part of said road, beginning at the court house in the borough of Lewistown, to Kelley’s run, on the tract or route laid down by the president and managers, cutting, moving out and opening said road, fifty feet wide, and by cutting the hills and filling up the low places, so that no part of said road shall rise more than an elevation of four degrees, and cut down all small knobs, rises or hillocks in said road — and twenty-one feet in width in said road to be paved or bedded with stone, to the thickness of twelve inches in the middle, and gradually diminishing in thickness to nine at the sides — and the stones on the paved part, shall be broken throughout, so that all the particles thereof will pass through a ring of three inches in diameter The bed of the paved part of the road, previous to the stones-being put on, shall be prepared as follows: the sides shall be cut nine inches below the surface, so as to form a shoulder to bed the stones against, and the earth removed therefrom, shall be thrown into the centre of said road, so as to form a convexity, so that the middle of the road may be from six to nine inches higher than the sides — on the.side or summer road, all trees and stumps or large stones to- be removed or dug out, so as to bring them to an even surface, and on or near to a level with the paved part of the road, but not in any one instance to be lower or more than six inches higher; one summer road to be made on each side of the paved part of said road, from six to eight feet wide; and at all small streams where the water accumulates in wet weather and which will require bridges, there is to be paved a gutter to extend across the whole r.oad fifty feet, sufficient to carry off the water, and to be shaped so as to prevent any sudden shock to carriages crossing the same — and the said William Shaw and Robert Gamble, are to procure the materials for making said road at their own expense, and to do as little injury to the lands, woods and property of the adjoining inhabitants, in digging up, grubbing or hauling stone or other materials for making the road as possible, and when the pavement of stone is completed, as aforesaid, to clay or sand over the same, so as to render the travelling convenient and commodious. And the said president, managers and company of the said road,'covenant and agree to, and with the said William Shaw and Robert Gamble, their heirs, executors and administrators, that they will, when any section of the road paved and made in the manner above stated is completed, being forty perches or more, in any one place, to take the same off their hands — and furthermore, the said president, managers and company, agree to pay to the said William Shaio and Robert Gamble for, and in consideration, that they shall make the road, as aforesaid, complete, and in sc workmanlike manner, as before described, and at, or within the term above stated and agreed upon, eleven dollars per perch, from the court house and thirteen dollars and fifty cents per perch for the remainder of the road between the end of the first mile and Kelley’s run, to be paid in the following manner, to wit: when they shall make it appear, that the work has progressed to the amount of one thousand dollars, they shall afterwards be paid as often as they shall call for money, so as to keep the work, at all times, one thousand dollars in advance of the money received, until the whole road is completed and then they shall be paid the balance — it is to be understood, that the president and managers are to pay the price of materials to the owners, and they are to be brought to the ground by the contractors. ”
    Then followed a statement of the work, labor and services'done and performed by the plaintiff, amounting to $9473 50, and the usual certificate, that that sum was due.

      The Turnpike Company made defence on two grounds — first, payments made to plaintiff while the work progressed, and second, that tlje contract was entire, and the plaintiff could not- recover at all, unless he would set out, in his declaration, and prove that he had performed the contract on his part, before suit brought.
    The evidence established the fact, that the contract had not been complied with by the plaintiff, in these particulars, — that the road had not been opened fifty feet wide, nor had the summer roads been made at all in many places. The plaintiff answered to these objections, that inasmuch as when the road was stoned twenty-one-feet wide, the turnpike company took possession of it, erected gates upon it, and took toll from persons travelling upon it; he therefore contended that he was entitled to recover from the defendants the actual value of his labor, bestowed upon the road, according to the terms of the contract.
    The jury found a verdict for the plaintiff, for $1730 91, and a-motion for a new trial being overruled, for the purpose of having' the question argued and settled in this court the-defendant appealed.

      Potter for appellants.
    The act of incorporation only required that the stone road should' be made in order to entitle the company to receive toll; but it was perfectly competent for them to contract for the making of side-roads, in addition to the stone road; by which its usefulness would be increased; and the company might legally take toll from travel-lers, when the stone road alone was made. Certainly this would not exonerate the contractor from his engagement to make the side roads, and otherwise complete his contract; nor could it be construed into a waiver by the company, of the necessity on the part of the contractor, to make the road as he engaged to do. The plaintiff •did not allege in his declaration, nor attempt to prove, that he had performed his contract; nor did he allege a waiver,-or attempt to prove the assent of the company, in the only way known to the law in which they can assent, to a waiver of the terms of the contract. Cited Pedan v. Hopkins, 13 Serg. & Raiole, 47. Cunningham v. Morrell, 10 Johns.Rep. 203. McMillen v. Hander lip, 12 Johns. Rep. 165. Thorpe v. White, 13 Johns. Rep. 53. Faxon v.Mansfield, 2 Mass. 147. Lancashire v. Killingworth, 3 Salk. 342. 2 Saund. 352 note 3.

      Blanchard and Alexander for appellee.
    - There are certain actions on contract in which a compliance'to the letter must be proved; others when there may be a recover without a literal compliance. When the main object of the contract is fulfilled, but secondary objects not completed, there may be a recovery, subject to the power of the jury to deduct from the amount a rateable proportion. The main object here was to make the stone road, so as to enable the company to take toll: and when this was done, the company took possession of the road and used it for all the purposes originally intended. This was virtually a waiver by the company of the necessity of further completion by the contractor, Here the company received the benefit of the workman’s labor, which amounts ipso facto, to a waiver, and makes the company liable to the payment of a pro rata sum. Heck. v. Shener, 4 Serg. & Rawle, 249. Decamp v. Fay, 5 Serg. & Rawle, 323. Stoddart v. Smith, 5 Bin. 355. Ohermire v. Nichols, 6 Bin. 164. 1 Saund. 320, n. 1
    The defendants are now in possession of, and enjoying the fruits of the plaintiff’s labor, and it would be against conscience that they should not pay for it. This court will not grant a new trial, unless injustice has been done.

      Hale in reply.
    In all the cases read, where the specific performance of a contract was enforced, although the party seeking such enforcement, had not himself complied, are where it was not in the power of such party to perform. Not so here. If a party may perform a part of his contract, and recover compensation for the part performed, he may perform that part which is most acceptable to him, and recover on a quantum meruit; thereby destroying the contract,and recover upon terms never imposed.
   The opinion of the court was delivered by

Ross, J.

The only question presented for the consideration of the court in this case is, whether the plaintiff can support this action without shewing that he has performed or offered to perform his part of the contract, or that the defendant had waived the performance thereof. It was contended on the trial by the counsel for the defendant, that the contract being entire, the plaintiff could not recover without stating and proving, that he had performed, or was ready and offered to perform, but that the performance was prevented by the other party. The judge, who tried this case, declined expressing any decided opinion on this point, but refused to arrest the cause at that stage of the proceedings; remarking to the counsel, “you shall have the full benefit of the exception, if necessary, but I will not arrest the cause now; I will consider the points against you.” The question is therefore,now before this court for decision.

If it be decided according to the terms of the written contract alone, as set forth in the plaintiff’s statement, he clearly is not entitled to recover, because it is an entire contract: the general rule being that an entire contract cannot be apportioned, Chit, on Con. 273. The plaintiff, however, in this case attempted to apportion the contract. He says, that having made and bedded the road twenty-one feet wide according to the stipulation contained in the agreement, and it having been accepted by the company, and licensed by the Governor, he has a right to recover the full amount engaged to be paid him on the completion of the whole road, without making or finishing the side roads, or opening the road fifty feet wide, according to his contracts in the article of agreement. The construction of the contract must be collected from the instrument itself. There is no obscurity in "a-n any of its provisions. The duties to be performed, and the time and manner, in which he shall receive compensation, are clearly designated. The rule, thatwhere the parties have entered into an express contract, no other can be implied, has existed so long, and been so repeatedly recognized by judicial decisions, as to have become an axiom in the law. 6 T. Rep. 324.

A Court of Chancery never professes to bind a man to any agreement, which he has not substantially entered into, 14 Vez. 407. Jer. Eq. 467. If the verdict in this case should be sustained, it will bind the company to pay money, which by their contract, they were not bound to do, until that part of the plaintiff’s contract was completed, which remains unfinished. By the article of greement, one thousand dollars was to remain unpaid, until the whole contract should be performed. And it is conceded, that if the inter» est be deducted from §1700 dollars, (the amount of the verdict,) the balance will not amount to one thousand dollars. Yet by the contract, that amount of work on the road, was to be always kept-in advance, until the whole should be completed: The whole road has never been completed, and the plaintiif is not entitled to recover any thing, unless, he can shew there is more in arrear than one thousand dollars.

This principle is fully established by the cases cited during the argument, I will advert to one of them, which seems to me decisive of the point under consideration. In 13 Serg. & Rawle, 47, Pedan et. al. v. Hopkins, the question was, whether if a person contracts to build a bridge or bridges, the work must be finished before the plaintiif can recover. Chief Justice Tilghman, giving the opinion of the court, says “that he is not entitled to recover, unless the work was finished, or he was prevented from finishing it by the act or consent of the defendants.-’-’ In the present case, the plaintiff has not finished the road according to the terms of the contract, and he has brought the suit for the whole amount, which would have been due, if he had complied with the contract. He cannot, however, recover until he has finished the work.

On the subject of apportioning an entire contract, a strong case may- be found in 1 Salk. 65. It was an action of debt, in which the plaintiff declared upon an instrument of writing, whereby the defendant’s testator had authorized the plaintiff’s testator to recover his rents, and promised to pay him ¿100 per annum for his service. The defendant’s testator died three-quarters of a year after, during which time the service had been performed; and the plaintiif demanded seventy-fivepoundsfor the three-quarters of the year. It was decided, that being one consideration and one debt, it could not be divided. The plaintiff was not entitled to recover. In illustration of the position, that where the contract is entire, it cannot be apportioned, see also 1 Swans. Rep. 438 — 9, and notes. 1 Sauhd. Rep. 288, note 3. Bro. ah. apportion, fol. 13, 22, 26. 3 Pin. 8,9. Co. Lit. 150, a. 1 Ld. Ray. 360, Hawks. v. Cardy. 1 Stra. 648, Weaver v. Borough. Doug. 23, Weston v. Downes, Cowp. 818, Powers v. Wills. 3 Mad. 153. 2 Mass. Rep. 147. 1 Carth. 466.

In certain cases by the agreement of the parties, time may be made of the essence of a contract. 3 Maddox, 447; 6 Mad. 26; Jeremy on Eq. 461; in which case it must be observed as strictly as at law. In other cases time is necessarily of the essence of a contract, from the nature of the subject-matter of the bargain. 1 Term. Rep. 79. Thus in the sale of a reversion, time is of the essence of the contract, because it may be contemplated, that the vendor is in want of the consideration money, and to whom therefore it is of importance, that the principal should be paid at the time appointed. Newman v. Rogers, 4 Bro. Chan. 391. So also where the value of the property is peculiarly liable to fluctuation, as national stock: — or where the agreement is to sell at the valuation to be made by individuals named within a certain period, time is of the essence of the contract. Morse v. Merish, 6 Mad. 26. In the case before us, it may indeed be said that time is of the essence of the contract, from the very nature of the subject-matter of the agreement, being to do that, which the act of assembly required to be done by a fixed and certain day. The provisions of the act of assembly, the subject-matter of those provisions, and the covenants of the parties, all tend to prove that time was an essential part of the contract. In fact, the parties themselves by their agreement seem to have made it of the essence of the contract. The act incorporating the company, was passed the the 25th day of February, 1813. The plaintiff on the 3d of June, 1815, entered into articles of agreement with the defendants, to make the road as therein stipulated, on or before the first day of September, 1818. The company agree to pay the plaintiff, “for and in consideration, that they shall make the road as aforesaid,' — complete and in a workman-like manner as before described, and at or ivithin the term above stated and agreed upon.” When the whole road should be completed, then the plaintiff was to recieve the balance. Time is thus made essential in order to secure to the company the rights and privileges granted by the act of assembly. By the 5th section thereof, it is expressly provided, “that if the company shall not proceed to carry on the said work in three years after the passing of the act, or shall not within seven years afterwards, complete the said road, &c. all and singular the rights and liberties, &c. shall revert to the commonwealth.” Thus positively fixing a time within which the road must be finished, and annexing a forfeiture on failure to do so. Whether time was originally of the essence of a contract, and whether, if it were, it continued to be so, are questions depending on evidence. Levy v. Unde, 3 Mer. 81. This matter has been adverted to, as forming a point of much consideration in the future trial of this case.

The plaintiff has endeavored to assimilate this case to contracts in reference to real estate. But there is little or no resemblance between them. The courts of equity, never interfere in contracts about personal chattels, either to enforce, rescind or mitigate their obligations — unless indeed in a very few cases, in which from an artificial value being attached, a fair estimation thereof is not to be expected in the ordinary transactions of society, and in lieu of which therefore, it is probable, that adequate compensation, by way of damages, would not be given by a jury. Thus as in the case of articles curiously engraved, valuable paintings, dresses, books,-tooís, &c. of a society of free-masons. So of a cherry stone finely carved, and other articles possessing merely an artificial value. 3 Vez, 71. Jeremy Eq. 467. 1 Vern. 873. 3 Pr.Wms. 390. Ambler, 77. 6 Vez. 773, Lloyd v. Loaming.

Inadequacy of price of itself is not a sufficient ground for Chan-ceryto interfere, unless it is so gross as to furnish evidence of fraud.

From a careful examination of the authorities applicable to this case, the following positions may be deduced as general principles of the law.

1. That when a contract is entire, before any recovery can be had of the" consideration money, the plaintiff must prove, that he has performed, or is ready to perform his part of the contract, or . that the performance was prevented by the defendant.

2. That time may be' an essential part of the contract, either from the nature of the transaction, or the subject-matter of the agreement.

3. Time may be made a material and essential part of a contract, by the)express undertaking' of the parties, as well in equity as in law: and when so, must be as strictly observed in equity as at law.

4. Either party may waive any right, introduced into or provided by the contract, either expressly or tacitly, by acts or declara-' rations fairly indicating a relinquishment of any provision or part of a provision) and without the performance of which, unless relinquished or waived, a recovery could not be had. But in all such cases, the facts are for the determination of the jury, but whether, if established, they amount to a waiver, is a question of law. It would be dangerous for the jury to decide, whether the party had abandoned his rights. This power ean only be safely entrusted to the courts, who alone can, in the exercise of it, give uniformity to the law.

Judgment reversed, and a new trial awarded.


author: Per Curiam.

text:
    JONES et al against SMITH.
    A justice of the peace has jurisdiction to sustain an action upon an insolvent bond.
    ERROR to Susquehanna county.

      Richard Smith brought this suit against Gilbert F. Jones and Eldad Brewster, before a justice of the peace, upon an insolvent bond; the defendant demurred to the plaintiff’s declaration; and the only question presented to the court here was, whether the justice had jurisdiction; the court below {Herrick president,) having deci- • ded that he had.

      Case for plaintiff in error.
    The condition of the bond being for the appearance of the insolvent, and performance by him of certain acts in court; the performance or non-performance being matter of record, cannot be tried by a justice. Cited Eason v. Smith, S Serg. & Rawle, 343. Wilson v. Long, 12 Serg. & Rawle, 58. Schaffer v. McNamee, 13 Serg. & Rawle, 44. Commonwealth v. Reynolds, 17 Serg. & Raiole, 367. Zeigler v. Gram, 13 Serg. & Rawle, 102.

      Conyngham for defendant in error;
    whom the court declined to hear.
   Per Curiam.

—There was no pretext for the demurrer. A bail-bond is to be sued in the court where the original action is depending, for the sake of preserving the equitable control over the proceeding that is peculiar’to the forum. But there is no such control of the proceeding in an action'on an insolvent’s bond, which is therefore within the spirit as well as the letter of the act of assembly, giving justices of the peace jurisdiction.

Judgment affirmed.


author: C-ibson, C. J.

text:
    THE TURNPIKE COMPANY against BROWN.
    551 PW 462. i 2 ie Huntingdon, Indiana and Cambria Turnpike Company cannot recover toll for SO 54(f raVe^'nf? on.their road, from individuals, by action; their only remedy is to demand -and receive it at their toll-gates, erected for the purpose.
    Writ of error to Huntingdon county.
    In this action, the President, Managers and Company of the

      Huntingdón, Cambria and Indiana Turnpike Road were plain* tiffs, and Jisa Brown and Enoch Jones, trading under the firm of Brown and Jones, were defendants.
    The following are the facts of the case: By an act of assembly of the 20th of March, 1810, the plaintiffs were incorporated and invested with all the power and authority usually incident to such a corporation; such as the right to erect gates, take toll, &c. The road wás made by the company, and toll-gates erected upon it.

      Br 'oWn and Jones, who were contractors on the Pennsylvania Canal, in furnishing materials for their works, used three miles of the Turnpike road, which Was situate between two toll-gates. After they had thus used the road, the treasurer of the company demanded from them a reasonable compensation therefor, which they refused to pay, and for which this suit Was instituted.
    The court below (Burnside president-,) was of opinion that the plaintiffs were not entitled to recover; and therefore rendered a judgment for the defendants.

      Bell for plaintiff in error.
    The demand before suit brought, was all that was necessary to entitle the plaintiffs to recover. The act provides that the company may erect toll-gates; and this is a matter of convenience; but it is not compulsory upon them so to do; it is not essential to. their rightto recover for the Use and occupation of their road.

      Miles for defendant in error,
    Insisted upon the inconvenience that would result-from the existence of a right in the company to sue every one who would travel upon the road, however short the distance. Whenever the rights of individuals or the public are restrained or affected by law, that law must be construed strictly; there being, therefore, no right of action given by the act of incorporation, it does not exist. Cowp. Rep., 26. Jllney v. Harris, 5 Johns. Rep., 175. Head et al v. Providence Insu. Co., 2 Cranch, 127.
   The opinion of the court was delivered by

C-ibson, C. J.

This is the first instance of an attempt to enforce the payment of tolls by other means than -that prescribed in the act of incorporation. The provisions of the act for making a road from Harrisburg to Pittsburg, by the southern route, which have been adopted to designate the rights and the duties of the parties in regard to the subject-matter before us, authorize the President and Members “to erect and fix such, and so many gates or turnpikes upon and across the said road, as will be sufficient to collect the tolls and duties;” and to appoint as many toll-gatherers as they may think proper, to collect and receive the tolls, with power tor “stop any person riding, &c., from passing through the said gates or turnpikes until they shall have respectively paid the same. ” In addition, a penalty is imposed on any one who shall pass through any private gate or bar near to or adjoining any public gate, with intent to elude the tolls; but this is evidently inapplicable to one who turns aside, without a fraudulent purpose, in the direct course of his journey. Now, it is a rule founded in reason and convenience, that every duty created by a statute, be enforced specifically by means, where there are any, provided in the statute itself; and the propriety of it in a case like the present is obvipus. The annoyance to those who use the road, especially the inhabitants of a town, would be insupportable, were they exposed at every step to the process of a justice of the peace.' A reasonable immunity, therefore, is always allowed to the latter, the extent of which, I believe, is sometimes fixed by law, in erecting the gates at a convenient distance from the place. To prevent imposition and oppression, it is necessary that there should be no other tolls than those that are demandable at places notoriously appointed to receive them, where the traveller may discharge them without detention or the costs of a law suit; and that the object of the legislature was to enable him to do so here, seems to be deducible from other provisions in the same act. Printed rates are ordered to be affixed to the gates, where alone, it is to be presumed, an inspection of them was supposed to-be serviceable; and when the road shall be found by an inquest to be out of repair, it is provided that “the tolls granted to be collected, at such turnpikes or gates, shall cease to be demanded ;” which would be altogether insufficient for the purpose, if tolls were demandable elsewhere. Our turnpike roads are public highways, and it is the franchise of the citizen to use them, free of eve ry restriction that is not explicitly imposed by the legislature; so that a quantum meruit, how consistent soever it may seem with justice, is excluded, for reasons of convenience and policy, by the rule I have mentioned.

Judgment affirmed-


text:
    KECK against APPLEBACK.
    Hn an action brought to recover the amount of a judgment rendered by a justice of the peace in another county, a certified transcript of such judgment is prima facie evidence, upon which the plaintiff may recover.
    ERROR to Huntingdon county.
    This was a suit originally brought before a justice of the peace of Huntingdon county, to recover the amount of a judgment which the plaintiff, Henry Keck, had obtained against the defendant, John Jdppleback, before a justice of the peace of Lehigh county.
    Upon the trial of the cause in the court below, the issues being on the pleas of nul iiel record and payment, the plaintiff offered in evidence the transcript of a judgment entered in his favor, against the present defendant, by a justice of Lehigh county, ánd which was regularly certified by the^said justice to be a true transcript of his docket.
    This evidence was objected toby the defendant, because the docket itself was better evidence, but at all events a sworn copy must be produced.
    The court below sustained the objection, and sealed a bill of ex-ceptiqns, which was here assigned for error.

      Bell for plaintiff in error.
    The argument derived ah inconvenienti should have weight in the decision of this question; for to require in every case that the docket and the justice himself should be produced, would be requiring more than the claims which are'usually prosecuted before a justice are worth; therefore it was that that section of the act of 1810, made a certified transcript good evidence.
    The certificate of a justice, of the acknowledgment of a deed, is prima facie evidence, because it is made so by the act of assembly, and in terms not stronger than those employed in this act.

      Miles for defendant in error.
    The act of assembly referred to, does not prescribe any rules oi evidence, but directs that; the justice shall proceed as in .cases ori ginally brought before him. Cited Wolverton v. Commomoealth, 7 Serg. & Rawle, 273. O’Donnel v. Seybert, 13 Serg. & Raíale 54., Welsh v. Crawford, 14 Serg. & Rawle, 440.
   Per Curiam.

In Welsh v. Crawford the judgment was offered collaterally. Here it was offered as the' foundation of the proceeding, and its competency did not depend on any abstract rule of evidence, but on the provisions of the act of assembly, which gives the remedy, and which directs that a certified transcript of a judgment against one residing in another County, may be delivered to the plaintiff for recovery of the amount, before a justice of the peace, in the county where the defendant resides, “as in cases originally brought before him.” Itis clear, then, that the object wasnot to originate another action for the same cause, in which the existing judgment might be evidence of indebtedness; but to have execution of the existing judgment itself, as in cases originally brought before the justice, who might therefore issue execution on it, without the precaution of a scire facias, although that he a very proper measure. The legislature, then, having pointed out the mode of authentication, by directing the transcript to be certified, it would be going far to say that it is not sufficient in' the first instance. Unquestionably it lies on him who disputes the fact thus certified, to disprove it; and the court below ought to have admitted the certified transcript as sufficient prima facie.

Judgment reversed, and venire de novo awarded..


author: Gibson, C. J.

text:
    IRVIN against THE TURNPIKE COMPANY.
    The benefit ■which results to individual property, by the incorporation of a company and location of a public road, does not, in contemplation of law, enter into the consideration of the contract of subscription; and such subscriptions are necessarily subject to tile power of the legislature to change the location of the road, where the contrary is not expressly stipulated.
    Wbjt of error to the Special Court of Common Pleas of Centre county. (Reed president.)
    This was an action brought by the Susquehanna and Phillips-burg Turnpike Road Company against William Irvin, to recover from him certain dividends of his subscription to the capital stock of said company.
    The Susquehanna and Waterford Turnpike Company, was incorporated by the act of the 22d February, 181'5, with authority to locate and make a road from the town of Waterford, in the county of Erie, to the river Susquehanna, at or near.the mouth of Anderson’s creek, in the county of Clearfield. The 28th section of this act provides, “That a bridge shall be erected over the river Susqtiehanna, where the said road terminates, at the joint expense of the said company, and the company .herein after mentioned.” Then follow several sections incorporating a company to make a road from Northumberland to the Susquehanna-, “at or near the mouth of Anderson’s creek, in the county of ClearfieldBy a subsequent act of assembly this latter company was divided into different companies, who were authorized to make the different sections of the road, between the extreme points: and the present' plaintiffs the Susquehanna and Phillipsburg Turnpilee Road Company, was one of them,'who was authorized to receive subscriptions for, and make that part of the road, which terminates “at or near the mouth of Anderson’s creek;” and where the bridge was to be built. To the stock of this company, William Irvin, the defendant, subscribed. On the 4th September, 1819, the charter was obtained, and the company went into operation. William Irvin was elected a manager, and was appointed to locate the road according to the act of 1812. The road being not yet made, in 1820, an act of assembly was passed, changing the location of the bridge, which the original act provided should be across the Susquehanna at the termination of the first mentioned road, “at or near the mouth of Anderson’s creek:” and directing the same to be located “at the mouth of Sugar-camp run,” (being about two miles further down the river,) and also directing the route of the road to be so changed as to accommodate itself to the bridge. The state subscribed a large portion of the stock.
    The defendant to support his defence, offered in evidence the petition to the legislature, on which the act of March, 1820 was obtained — accompanied by the remonstrance of William Irvin, and other citizens of Clearfield county against the proposed alteration, which was also presented to tire legislature, with evidence, that the change made by the said act of 1820, materially affected and injured the property of William Irvin, and that a road could have been made and a bridge erected, equally condusive to public interest, and at one-quarter the expense on the original route, than that on the one to which it was altered; with the draft which accompanied the petition, to shew the manner in which the law was obtained.
    That William Irvin’s son who subscribed for his father, at the time of subscribing, was induced so to do by the representation of the commissioners, that the bridge would be built at the place first contemplated, and that he would not otherwise have subscribed; the commissioners taking in the subscription, shewed him the law, and stated at the same time, it was so fixed in the act; That the contract at the time of subscribing was changed by the subsequent act of assembly. And also to prove, that at and before his subscription to the Stock of the plaintiff, he was the owner of a tract of land on the Susquehanna river, opposite the point where the Susquehan••
      na and Waterford turnpike terminates; and that by the law and the supplements thereto, incorporating the said company, and the points fixed in the said law, the said turnpike road must have passed through his land; and the bridge to be erected across the Susquehanna, would have butted on, "and adjoined the land of said defendant, that by the alteration made by the act of 1820, the bridge was built two miles below his land, and the road located on the opposite side of the river from his land, by which he was injured to the amount of one thousand dollars, at least, and this, to shew that the consideration that induced him to subscribe, had entirely failed.
    The evidence having been objected to by the plaintiffs, it was over-ruled by the court, who signed a bill of exceptions at the instance of the defendants.
    The defendant requested the court to charge the jury upon the following points:
    1. That the act of 11th March, 1820, changed the nature of the contract entered into by defendant on his subscription, and unless he acquiesced in the same, subsequent to the passage of the law, that the plaintiffs are not entitled to recover.
    2. That an act of assembly cannot make a new contract, without the consentof the party, and make it relate to an antecedent contract; and if the jury believe that the act of 1820, does so change the contract entered into by the defendants, with the plaintiff, at the request of the plaintiff, against the will of the defendant-then he is discharged from his liability.
    3. That the president and a quorum of managers could not give consent to an alteration of the chartered rights of the corporators, so as to bind those dissenting from the change, under the laws incorporating the plaintiffs. That this, if it could be done at all, could only be done by a majority of the stock-holders, at a general meeting.
    4. If the jury believe that the defendant has been injured by the alteration of the route, and the erection of the bridge, by the act of 11th March, 1820, and that he never acquiesced in the same, then he cannot be compelled to pay his subscription.
    5. If the jury believe that the defendant subscribed to the stock of the plaintiffs on the faith of the existing laws at the time of his subscription, that the road must pass through his land, and the bridge be erected across the river adjoining and opposite his lands, and this was the inducement to his subscription which has been destroyed by the act of 1820, then the plaintiffs cannot recover.
    These points, as applied to the facts of this case, were answered in the negative; and the jury found a verdict for the plaintiffs.

      Potter for plaintiff in error.
    There is no good reason why the ordinary rules of law, which are generally applicable to contracts, should not be applied to the circumstances of this case. A contract to pay, is only bindings when there is some consideration for entering into it; and it is equally true, that when that consideration fails, the obligation to pay ceases. Here this road was to pass'through a new country, and it ■was not at all contemplated that the profits of the road would compensate the individuals for their money subscribed; it was the facilities and benefits which would result to their property: .and it was upon this consideration that Irvin entered into the engagement to pay. Was it not, therefore, competent for him to shew by proof, that that consideration had entirely failed? We believe it was, and that the law is so held in McConahy v. The Turnpike, 1 Penn. Rep. 426.
    The managers had no authority to apply to the legislature to change the route of the road; their powers and duties are prescribed by the act of incorporation. Livingston v. Lerich, 4 John Chan. 597. Rex. v. Spencer, 3 Burroivs, 1337. Rex. v. Cuthush, 4 Burrows, 2207. Wherever there is a change in the route of a road, without the consent of the corporators, there can be no recovery against them. 8Mass. 268. 11 Mass. 384. Marelboroughv. Smith, 2 Con. Rep. 579. 4 Jlmer. Dig. 142, No 31, 36. Union Lóeles v. Torone, Adam’s Rep. 44. Case of St. Mary’s Church, 7 Serg.fy Raiole, 560.
    The acts of a few of the corporators, not within the scope of the powers delegated to them, will not bind the rest, or affect their rights. Bridgman’s Eq. Dig. 391, tit. Corporation, No. 25. Ellis v. Marshall, 2 Mass.269. Bac. Jib. tit. Corporation, -No. 3, let. B. Nor can the rights' vested in a corporation be affected by subsequent enactment; even at the instance of a majority of the corporation. Wales v. Stetson, 2 Mass. 146. Gray v. The Portland Bank, 3 Mass. 364. Commonwealth v. Jarrell, 7 Serg. & Rawle, 460. 4 Wheat. 518.

      Blanchard for defendant in error.
    This company was incorporated for the' purpose of making a great public improvement; and in no part of the act of incorporation, is there to be found a recognition of the rights or interests of individuals, with regard to the object to be attained. To make a road between two extreme points, is the important design, and all intermediate points, or whether a bridge is to be built higher up or lower down a river, which the road crosses, are matters of secondary consideration. Doubtless individuals are interested in the locations, but whenever those interests conflict with the public advantage, they must be subservient thereto; otherwise the.main design of the act of incorporation would be defeated. The board of managers regularly chosen to carry into effect the law, found that it might be amended; and upon representing the facts to the legislature, the act was passed changing the location.
    The state at this time owned two thirds of the stock, and had a right to pass the law, as it was applied for by the company. AS to the vested rights of Mr. Irvin, he had none, with regard to the location of this road, and if he had, they must yield to public convenience. Estep v. Hutchman, 14 Serg. Sr Rawle, 439. Eakin v. Raub, 12 Serg. & Rawle, 372. Foster v. Bank, 16 Mass.270. The cases cited by the counsel of the plaintiff in error, are not at all applicable to this case, inasmuch as the companies incorporated as referred to in those cases, were not to make a road for public purposes, but from one township to another, for the benefit of the inhabitants residing near to it. They were incorporations for private purposes, and to affect their corporate rights, affected on-» ly the individuals. The public had no interest in it.
   The opinion of the court was delivered by

Gibson, C. J.

Our turnpike roads have been made by incorporated companies, in which the state has usually been the principal Stockholder. But though the funds have been furnished by individual subscription, the consideration for the corporate franchise, as well as the object to be promoted, has exclusively been the public benefit. With this the individual interest of the stockholder has been combined, by giving him a share of the tolls, in full compensation of his share of the capital. That an expectation of benefit from a rise in the value of property near the route, has been a powerful spring, in putting these incorporated bodies in motion, is not to be denied. Yet, though reliance has been placed on the effect of it, the legislature has never encouraged it so far as to recognize it as a condition of the contract of subscription. Our acts of incorporation have been moulded to more general interests. Their provisions have been adapted to the protection or encouragement of no local interest whatever, further than to compensate direct injury to private property in the execution of the work; and this, too, without deduction of the indirect benefit supposed to be received by the owner. In fact, I have found nothing to indicate that it had ever entered into the consideration of the legislature at all. We doubtless owe many of our roads to it — at least, it has furnished a very powerful incitement — but it is doubtful whether its advantages have not been attended with more than an equal amount of mischief in the predominance of private interest over public convenience. But certain it is, that in no instance has the legislature authorized a conditional subscription, dependent on a particular location of the road; or given color to a notion that it might be regarded as an implied consideration of the contract. On what principle, then, are toe to recognize it as such? By the constitution, the right of the stockholders to every thing granted in the charter, is made inviolable; consequently their rights as corporators are riot to be impaired. But the public welfare being paramount to every thing beside those rights, and power to correct errors of location being essential to the promotion of it, subscriptions are necessarily subject to it where the contrary is not expressly stipulated. The objection to this, seems to be rested on the occasional hardship of its operation; as an instance of which, a liberal subscription, by the inhabitants of a town, named as a point, has been put in a strong light, But the abstract propriety of a principle cannot be determined, by ■an application of it to masses instead of individuals, or by the aggregate hardship of its operation in a given case. Such masses, like individuals, take their measures at their oyvn risk, and subject to the paramount rights of still greater masses. The fallacy of the whole seems to be, in confounding the motive for entering into the contract, with the consideration of it; for nothing is part of the consideration that is not regarded as such by both parties, and nothing but the benefit to be received as a corporator is held out to the subscriber by the corporation or the state. Of benefit to be received as a landed proprietor, he has no assurance but his calculation of the chances, and this, it seems to me, the defendant was bound to know;, yet he relies on representations by the commissioners, that the site of the bridge was fixed by law, where it would be peculiarly advantageous to him. What is that but to offer the motive which impelled him to subscribe, as a circumstance to influence the construction of the contract? It is not pretended that the commissioners misrepresented any fact which it was material for him to comprehend, or did not leave him to judge of the permanency of the legislative provisions then in force; and for all beside, he was bound to know, that acting under a limited authority, they, had no power to make conditions, or bind the corporation in a matter not committed to them. As there is, then, no peculiar circumstance to distinguish this case, it must be decided on the abstract nature of the contract. It will hardly be pretended that the managers of a road may not correct errors of location between intermediate points, consistently with the rights of previous subscribers; and I am unable to perceive a reason why the legislature should not be taken to have reserved a like power over the intermediate points themselves. An error would be as hurtful in the one as in the other; and if an injudicious point may not be abandoned out of respect for private interests, it must be because such interests are superior to those of the community, and because the charter has been granted for individual enrol" ument, and not the public good. That is not pretended. On the contrary, a power to correct errors is conceded tó be inherent and indispensable. But how may it be exercised consistently with the constitution, if it be according to the argument, inconsistent with an implied condition of the contract of subscription? The defendant goes for a recision of the contract. But the change of an intermediate point, is not a recision of the contract, or it surpasses the legislative power. It then comes to this, that a power conceded on all hands to be an essential one, cannot be exercised without discharging all previous responsibilities, and resolving the corporation into its original elements. It will be said that no one would be released who had not suffered a substantial injury. Butthelegal effect of an alteration, cannot depend on its actual effect, or the extent of the injury occasioned by it. It is a rudimental ¡principle of the common law, that the violation of a right, without actual injury, entitles the party to nominal, damages. So an estate may be acquired' or lost by the performance or omission of a condition which, in the abstract, is perfectly indifferent; and if permanence of location, were at all a condition here, it would be so in favor of all who had subscribed, whether with a view to indirect advantage, or the benefit to be had from the tolls. Let it not be thought that the subscriber assents to the act which creates the change, by embracing the alternative which it is thought to put within his reach. His assent would ratify the act, if at all, in all its parts; and in that aspect there would be no recision in the case. Beside, to assent implies a power to dissent; and what is the alternative that would be presented? Merely to renounce the benefits of the corporation, or submit to the new conditions; and in that predicament, the contract would be as much impaired with his assent as without it. Suppose he should still insist on the original contract: the consequence would be a direct collision between an act of the legislature and theconstitution. It may be thought unnecessary to view the question In that aspect, as it may be supposed the defendant has not thought proper to insist on it. But does he not insist on it, when he refuses to perform his part of it, because one of its conditions has been, as he says, violated by the plaintiff? He refuses his assent to the act of the legislature, when he refuses to abide by the conditions it imposes; and those conditions must be executed, or an act of the legislature admitted to be indispensable to the public welfare, must be rendered abortive. Apply the principle of this supposed assent, to the case of a stockholder, whose subscription has been in part paid in. According to the argument, he would be released from further liability. But what would compensate the loss of payments already made? If the act would really infringe on a contlition of the contract, the privilege of retiring with the loss of a part of his capital, would be no reparation. Give him an action to recover his money back, and the difficulty still remains; for the violation of the constitution is found in the very act which would make a resort to an action necessary. But the extreme consequences of the principle would be positively destructive, as it would, for the same reason, give an action to those who had paid the last farthing, and enable them to withdraw their share of the capital, at the expense of ruin to the enterprise. And thus a power admitted on all hands to be indispensable to the successful prosecution of the work, could be exercised after experience had demonstrated a fatal error in the plan, only by undoing all that had been done; which is in effect to say, it cannot be exercised at all. Were we to indulge these imperfect equities, we would, to preserve consistency, be compelled to go that far, as a middle course would lead to a labyrinth of inextricable subtilties. Either, then, the consequential benefits to the stockholders, not as corporators, but proprietors, are so far superior to the public good, that the legislature may do no act to affect them, or an unlimited right to interfere is a tacit condition of subscription. The defendant was allured by a prospect of gain in a matter collateral to the object of the enterprise, and he embarked his capital, as he would have.done in any other speculation, at the risk of disappointment. He got no pledge that, in the event of competition, the public interest would not be preferred to his — he exacted none — it would have been a breach of trust to have given him any. Whatever might be the effect of such a pledge, it certainly cannot be implied from the bare act of subscription; and with this, the decisions cited from the Massachusetts Reports entirely agree. There the capital was to be raised, not as with us, by instal-ments, enforced by an action on the contract of subscription, but by assessments on the share enforced by forfeiture and a re-sale of the stock, which, as'the act of subscription was abare agreement to become a share-holder, without incurring personal responsibility, was deemed to be the only remedy provided .by the act of incorporation. An action, therefore, could be maintained only on an express promise to pay; and as"there was no moral obligation in thp case, a sufficient consideration was sought for, and thought to be. found, in the peculiar advantages of the location. As the legislature had prescribed neither contract nor conditions, the parties were at liberty to establish any terms of responsibility which they might think proper to adopt; and it is not surprising that the courts refused to enforce the promise wherever there was a failure of what was regarded as the consideration of it by the parties themselves. It is obvious that the present is not that case, the liability of the defendant having arisen 'from a promise in consideration of benefits to be drawn from the profits of the corporation, and not from a locations of the road peculiarly beneficial to him as a landholder. I take it, then, that the change of an intermediate point does not rescind the subscription.

But it is said that the change here was not of an intermediate* but a terminative point; to which, on the authority of the Indiana and Ebensburg Turnpike v. Phillips, 2 Penn. Rep., 183, is attributed greater effect, by reason of its operating a fundamental change in the objects and identity of the company. In that case* an incorporated company, to which subscriptions had been made, was divided into two distinct corporate bodies; and to the one or the other of these, the'original subscribers, were arranged according to their residence east or west of the specified point; to do which, without their consent, the legislature was deemed incompetent. What is the case at bar? The legislature had incorporated two companies to make a road from Waterford to Northumberland, and had fixed the West Branch of the Susquehanna “at or near the mouth of Anderson’s creek,” as the line of division between the two sections. Over this a bridge was to be built at the joint expense of the two companies; and it is certainly fair to admit that the eastern bank was intended to be a terminative point of the eastern section. That section was afterwards subdivided and assigned to five new companies formed out of the old one, of which the plaintiff is the one that adjoins the point intended to be the site of the bridge. r At this juncture the defendant subscribed the shares that have occasioned the controversy; subsequent to which the legislature authorized the companies to change the site of the bridge to the mouth of Sugar-camp Run, a mile or two below, and defray the expense of its erection with the public subscription to the route;, in consequence of which the termination of the plaintiff’s section was shifted from the east to the west bank. But the change was essentially in the site of the bridge, the termination of the section continuing to be, in the words of the original act, “the river Sus-1 quehanna at or near the mouth of Anderson’s Creek.” It was in fact within two hundred feet of the point specified, which, in a tract of more than as many miles, can hardly be esteemed a- material deviation. Perhaps the maxim de minimis might be applied to it. But was the change, small as it is, in any thing but an intermediate point? This corporation was not to conduct its operations as an isolated body and with detached views, but as an individual associated with similar bodies in the systematic accomplishment of a great public work, which was viewed as a whole. The extremities of the .sections were, in truth, intermediate points as respects the entire route, a change of which could not vary the productiveness of the stock. Of what, then, has the defendant to complain? Not of a decrease of corporate interest, nor of a change of corporate object on identity; of nothing, in short, but a loss of advantages expected to be realized from the location of the bridge, of which I have attempted to show, he might be legally deprived by the change of an intermediate point; and it therefore seems to me he cannot set it up as a defence to the action.

Rogers and Kennedy, Justices, dissented.

Judgment affirmed.