text:
    Lauman’s Appeal.
    Lien of unpaid purchase-money under an Orphans’ Court sale, the interest of which is payable to the widow of the decedent for her life, remainder to his heirs, is not discharged by a sheriff’s sale under a judgment against the purchaser: hence all prior liens are unaffected; but the arrearages of interest and of prior annuities are discharged.
    After judgment has been had xipon a mechanic’s claim, the want of a specification of the nature and kind of materials furnished, cannot be taken advantage of by creditors contesting the plaintiff’s right to participate in the proceeds of a sheriff’s sale.
    Where a mechanic’s claim is filed against a mansion-house, barn, wagon-house, &c., on one farm to which they are all appurtenant, and are intended to be occupied and used together, there is no necessity for an apportionment of the claim among the several buildings.
    A claim for materials, without specification of kind or quantity, is bad.
    In error from the Common Pleas of Dauphin county.
    The questions, in this cause, arose on the distribution of the proceeds of real estate sold by the sheriff, under a judgment against Lauman.
    The land originally belonged to one Eshenour, who devised it, with other lands, to his three sons, subject to the payment of legacies to his children, and of the interest on 'a certain sum to his widow for life.
    Under an authority contained in the will, the sons divided the lands among themselves, and apportioned the liens on each tract.
    L. Eshenour, one of the sons, took the land now in question, under the will. After his death a sale was made, under the order of the Orphans’ Court, and one-third of the purchase-money remained charged on the land; the intirest of which was payable to the decedent’s widow for life, remainder to his heirs.
    The defendant became the purchaser, and the auditor awarded the fund arising from the sheriff’s sale, under a judgment against him, to the payment of the arrearages of interest due the widows, of Eshenour the elder and younger, and also to the payment of the legatees of Eshenour the elder.
    Among others, there were three classes of claimants on mechanics’ claims:—
    1. Smith, & Co. These claims were for materials furnished, with no specification of their kind or quantity. But judgments had been obtained prior to the sheriff’s sale.
    2. McElfatrick & Co. The claim, in this case, was against a two-storied stone dwelling-house, . . . Swiss barn, wagon-shed, . . . woodhouse and washhouse, . . . smokehouse and icehouse, on the farm of George Lauman, &c. The only question was, whether an apportionment was necessary.
    3. Ross & Shott’s was a claim for materials furnished, but no specification of the kind or quantity was filed.
    The court confirmed the report, awarding the funds to the payment of these liens, there being subsequent judgments remaining unpaid.

      Boas and McOormieh, for appellants.

      Olt and McCHure,. for the claimants under the will and the purchaser.

      Kunlcle and AlricJcs, for the mechanic lien creditors and widow of L. Eshenour.
    1. The liens of Smith & Co. were not void: 2 Barr, 77; Ewing v. Barras, 4 W. & S. 468; Jones v. Shawhan, 4 f. & S. 257. It is too late to object in court; the objection ought to have been made before the auditor: Mitchell’s Estate, 2 Watts, 88. But there were judgments on the scire facias on the lien, and had the liens been voidable, yet the validity of these judgments cannot be questioned collaterally: Style v. Bradford, 4 Rawle, 401; Tarbox v. Hays, 6 Watts, 401; 8 lb., 80; 10 lb. 101; 2 W & S. 261; 5 lb. 556 ; nor can they be questioned at all by other creditors, except for fraud or collusion: Hawer’s Appeal, 5 W. & S. 473.
    2. The widows are entitled to their unpaid interest, out of the proceeds of the sheriff’s sale: Reed v. Reed, 1 W. & S. 235; Tower’s Appropriation, 9 lb. 103; Mohler’s Appeal, 5 Barr, 420.
    3. The four legacies, befhg either due or capable of being ascertained, are entitled to be paid out of the proceeds of the sale, notwithstanding the cases of Mix v. Ackla, 7 Watts, and Swarr’s Appeal, in 1 Barr. Those are anomalous cases. They are not exceptions, but contradictions of the general rule, and are not law. The same question, indeed, was otherwise decided in Milliken v. Ken-dig, 2 Penn. Rep. 477; Luce v. Snevily, 4 Watts, 396; and in Cow-den’s Appropriation, 1 Barr, 273. They have not been recognised by the later cases as the law. The general rule which has prevailed on this subject for twenty-five years without interruption (except by those two cases) will be found in 14 S. & R. 257; 16 lb. 410; 1 Penn. Rep. 162; 2 lb. 56; 8 Watts, 296; 4 Rawle, 440; 6 Watts, 177; 6 W. & S. 235, 282; 9 lb. 103; 1 Barr, 267; 5 lb. 242; 5 lb. 420. Moreover, these legacies are mentioned in the deed to Lauman as constituting part of the purchase-money, and therefore must be paid out of the money raised by the sheriff’s sale: Barnitz v. Smith, 1 W. & S. 142.

      July 8.
   Bell, J.

The court below was right in allowing to the widows of Christian and Leonard Eshenour the arrearages of the yearly sum due to them respectively, under the authority of Reed v. Reed, 1 W. & S. 239, and Mohler’s Appeal, 5 Barr, 420. These cases settle that the arrears of an annuity, payable to a widow out of lands devised by a testator, and the interest of her statutory third part, charged on the lands of a decedent in lien of dower, are payable out of the proceeds of a .sheriff's sale, made under a judgment against a subsequent owner. But these, with Fisher v. Kean, 1 W. 259; Mentzer v. Menor, 8 W. 296; Mix v. Ackla, 7 W. 316; and Swarr’s Appeal, 1 Barr, 92, determine, in exception to the general rule, that such encumbrances in favour of a widow and others of a kindred character, are not divested by a judicial sale of the land under partition or liens. As a consequence of this doctrine, the two cases last cited establish the law of Pennsylvania to be, that a lien prior in date to the widow’s encumbrance, though certain in amount and definite in its continuance, is not disturbed by the sale. In the first of these, a testator devised to his son a tract of land encumbered by a judgment, and charged it with the maintenance of his widow. The land having been sold under an execution against the devisee, the court applied the proceeds in payment of the judgment recovered against the latter, holding that the purchaser took the land encumbered by the first judgment, and subject to the widow’s claim for maintenance. “ In a case like this,” says the Chief Justice, when pronouncing the judgment of the court, “ there are but two ways to proceed: either to sell the whole on the lien which binds the whole, or to sell the contingent interest by itself on the lien which binds it only, as a contingent interest, being a reserved fund for the prior liens to pass with the land in the hands of the purchaser.” When the latter course is pursued, the immediate encumbrance remaining untouched, the reasoning which excludes the primary vendee from coming in on the fund, and treating it as a still subsisting and undisturbed lien, is incontrovertible. It is not worth while to repeat for the purpose of reasserting it, more especially as it was reiterated and enforced in Swarr’s Appeal, 1 Barr, 92. That was the case of an intestate’s estate, decreed under proceedings in partition by the Orphans’ Court to one of the sons, charged with the interest of the widow, according to the intestate-laws, and subject to the lien of decedent’s debts. The land was afterwards sold by the sheriff under a judgment recovered against the son. It was held that the purchaser took the land subject to the intestate’s debts, to the payment of the interest of the widow’s third part during her life, and the principal sum at her death; and the proceeds of the sale were applied in discharge of the judgment recovered against the son. This determination proceeded upon the ground that as the sale was not of sufficient vigour to sweep away the intermediate encumbrance — to permit which might subject the widow to injustice — it could not' of course reach those paramount, for this might be to injure the rights of the intestate’s creditors.

To apply these principles to the facts of the case in hand. Had the tract of land purchased by Laumaü been subject but to the encumbrance created by the will of Christian Eshenour, in favour of his widow, and its proportion of the legacies bequeathed to his grandchildren, no doubt the lien of the latter would have been divested by the sheriff’s sale, under the judgments recovered against Lauman. The legatees, in that case, would have looked to the fund made by the sale, though one of the legacies was not due at the time: Hellman v. Hellman, 4 R. 440; Lobach’s Appeal, 6 W. 167; Tower’s Appeal, 9 W. & S. 103. It was probably these adjudications which induced the direction to pay the legacies out of the proceeds of sale. But in this, both the auditor and the court failed to give effect to the fact that another encumbrance had been created by order of the Orphans’ Court in favour of Leonard Eshenour’s widow. ' The sale to Lauman was expressly subject to this as well as to the two prior burdens. But, as we have seen, the last of these liens was not divested by the subsequent sheriff’s .sale. This brings the case directly within the principle of the decisions to which I have adverted. It is subject to the same reasoning, and must be governed by the same rule. The court below concede that the second widow’s hold upon the land is not relaxed by the sale. Then, as the liens of the legatees are paramount to hers, it follows they also remain unaffected. Nothing more being sold than what is denominated, in Mix v. Ackla, the contingent interest residing in Lauman, the proceeds are applicable to the judgments and liens recovered against him, leaving the legacies to bind the land in the hands of the purchaser. It results that so much of the decree as directs payment of the legacies must be reformed.

The remaining questions touch the validity of the mechanics’ lien. Judgments had been duly recovered upon those filed by Smith & Co., and by McElfatrick. The well-settled rule that a judgment, though irregular on its face, and even illegally recovered, cannot be impeached collaterally by third persons, though lien creditors of the defendant, except for fraud or collusion, is conclusive as to the claims filed by Smith & Co.: Stiles v. Bradford, 4 Rawle, 394, 401; Tarbox v. Hays, 6 W. 410; Haselett v. Ford, 10 W. 101. It is equally so as to McElfatrick, unless there be something in the 13th section of the act of 1836 that interferes to prevent it. It directs that when one claim is filed against two or more buildings, owned by the same person, the creditor shall designate the amount he claims tobe due on each of the buildings; “otherwise such claim, shall be postponed to other lien creditors.” Whether this provision will reach behind a judgment recovered, to postpone the lien on which it is founded, it is not now necessary to decide, as we are of opinion McElfatrick’s claim is not within its spirit. Prior to the act of 1836, it was optional with the mechanic or material-man to file a joint lien, or to apportion it among the several buildings of the same owner, to be affected by it. The inconvenience resulting from this, where the claimant did not choose to file an apportionment of his claim, is stated by Sergeant, J., in Thomas v. Irvin, 7 W. & S. 381. “The debtor or owner, purchaser, lien creditors, and others, were left open to the inconvenience that each building was liable for the amount of the whole claim; and no part of the proceeds of any of the buildings could be applied to a subsequent encumbrance, so long as the joint lien remains unsatisfied.” It had the effect, too, of restraining the alienation of any of the buildings, since a purchaser must necessarily take each subject to the lien at the pleasure of the creditor, though the purchase-money was applied in discharge of a portion of the encumbrance. To remedy these difficulties, the provisions of the 13th section were introduced.

But the reason of the enactment shows it was intended to apply only to the case of separate and distinct erections, capable of and intended for a distinct possession and enjoyment. Looking to the mischief to be remedied, it is very obvious the statute has no reference whatever to the necessary buildings of a farm forming component parts of a common property, and which, for every beneficial purpose, must be occupied as one possession. The dwelling-house, barn, wagon-house, and other similar erections, are but appendages of the farm, the principal thing, and built expressly with a view to its more perfect enjoyment. They are, therefore, to he considered as constituent parts of a whole, incapable of separation without injury: and consequently were intended for a several occupation.

Such buildings are, in every particular, unlike those which, though apparently joined, are in fact completely divided, each of itself constituting an object of distinct proprietorship and encumbrance. The one is aggregate; the other is segregate. The propriety of apportionment among the latter is manifest; its uselessness, as applied to the former, is not less so. For the reasons given, it is apparent a case like the present was not within the contemplation of the framers of the law. Though the language used, taken literally, may include it, yet, being without the circle of the mischief to be cured, it is clearly not embraced by the spirit of the act. It consequently remains subject only to the prior statutes, which do not imperatively call for an apportionment. So much, therefore, of the decree as directs payment of the respective claims of Smith & Co. and McElfatrick, is correct.

But the claim of Ross and Shott occupies ground less secure. It stands unarmed by the shield of a judgment, and as the simple registry of it, enjoys not the immunity of a record: Davis v. Church, 1 W. & S. 240. It is open to impeachment by all having an interest in the question of its validity as owner, purchaser, or subsequent lien creditor. As a lien of this nature derives its vitality exclusively from the statutes, it has been repeatedly decided that it must conform to these requisitions in every essential particular, under penalty of avoidance. The propriety of the rule is pointed out in Noll v. Swineford, 6 Barr, 187. Its observance is there said to be essential to the safety of the lien creditors, as furnishing a datum by which, in ease of dispute, they may be enabled to ravel out the truth. It is true, that certainty to a common intent has been deemed sufficient, and it is said that every trifling mistake will not avoid the lien: Ewing v. Barras, 4 W. & S. 468. Yet a substantial compliance has ever been insisted on. Now the 12th section of the act of 1886, requires that the statement filed shall set out “ the amount or sum claimed to be due, and the nature or kind of work done, or the hind and amount of materials furnished, and the time when the materials were furnished, or the work done, as the case may be.” Under the rule as settled in Driesbach v. Keller, 2 Barr, 77, the time in this case is perhaps sufficiently given. But there has been a total neglect of another condition. The kind and amount of materials furnished to the buildin'gs is entirely omitted. This is fatal under the objections made by'the judgment creditors. The claim, as filed, wants that which the law says it shall possess, to invest it with the quality of lien. Being thus unsustained by the law, it never acquired that character. It must, therefore, be stricken from the list of debts privileged to. come in on the fund.

And now, to wit, July 8, 1848, it is ordered, that so much of the decree of the said Court of Common Pleas, as directs payment from the moneys in court to Elizabeth Knoop, late Eshenour, George Eshenour, Christian Eshenour, and William Haverstick, and to Ross and Shott, be reversed: And it is further ordered, that the record be remitted to the said court, with directions to decree a distribution of the said moneys among the several claimants thereof, in accordance with this judgment.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    Laing v. Colder et al.
    In an action for injuries from negligence, damages not immediately resulting from the injury cannot be proved unless specially laid.
    The plaintiff, travelling in a railroad car, permitted bis band to extend outside of the window, whereby his arm was broken in passing a bridge: the carrier is not liable for the injury, if he gave timely notice of the danger, which the plaintiff might have avoided.
    Carriers may limit their liability for the loss of goods intrusted to them, not resulting from their negligence.
    Responsibility of carriers of passengers.
    In error from the Common Pleas of Dauphin county.
    This was an action on the case for negligence, whereby the plaintiff’s arm was broken whilst he was travelling in a railroad car of the defendants’; and also for the loss of his baggage. The plaintiff declared for damages arising from the pain, loss of time, and expenses.
    The first exception was to the refusal of the court to permit the plaintiff to prove the number of his family dependent on him for support, a,nd that in consequence of the injury he had become embarrassed in his circumstances. There was no averment in the narr. of special damages on these grounds.
    The second, was for permitting defendants to show that immediately after the injury occurred, they had taken him to a hotel and procured surgical aid.
    It appeared that the accident occurred whilst the car was passing over a bridge, which was so narrow that the plaintiff’s hand lying outside of the car-window was caught by the bridge and his arm broken. The fifth exception was for permitting defendants to prove that during the journey warning had been given by their agent to a passenger named Long, of the danger of putting his feet or arms out of the window, and that he sat so near plaintiff that the warning must have been heard by him. It was also proved, that printed notices were put up in the cars warning passengers not to put them arms or heads outside the windows, and that, immediately before reaching the bridge, notice was given in a loud voice to the passengers to keep their heads and arms inside the car.
    With regard to the loss of the baggage, the evidence was, the defendants had placed placards in their office, and also printed on the tickets, one of which plaintiff purchased, a statement that all baggage was at the owner’s risk. The plaintiff’s baggage, for which the action was brought, was a carpet-bag. When he left the car he informed the agent it was a valise. The agent not finding it, the carpet-bag was carried on, but subsequently returned to plaintiff after this action ivas brought.
    Eldred, P. J., instructed the jury, that a carrier of passengers was bound to furnish suitable conveyances, such as, with due care and proper attention, would carry passengers safely, unless interrupted by some accident which no human wisdom could foresee. That he must give notice of approaching danger, or of the dangerous places on the route, if some are more dangerous than others. This notice must be full and complete to all persons who travel, whether learned or unlearned. The slightest negligence in any of these particulars makes him liable for all damages. That, in the present case, the presumption was, there had been negligence, and it was for defendants to show they had done everything in their power to relieve themselves, or that it resulted from the plaintiff’s negligence and folly. That a printed notice of the danger of passengers putting their hands out of the windows was not sufficient; but if they had given plaintiff sufficient warning as they approached the bridge, this would discharge them. That the care taken of the plaintiff by defendants after the accident, was no defence to the action.
    As to the loss of the baggage, he said the special contract limiting their liability would protect them if this were brought home to plaintiff, but even then, if there was any negligence, they would be liable.
    The plaintiff insisted the court should have charged that the defendants were bound to have cars so constructed that passengers could not put their hands or arms out.
    The exceptions to evidence, and the charge of the court, were assigned for error.

      Alriclcs and Fisher, for plaintiffs in error.

      Boas and McOormicle, contó.

      July 8.
   Bell, J.

The evidence mentioned in the first bill of exceptions was rightly excluded. The plaintiff went for general damages, under the common allegation ad damnum. Damages which necessarily result from the act complained of, are properly termed general damages, and may be shown under the common allegation; for the defendant must be presumed to be aware of the necessary consequences of his conduct, and therefore cannot be taken by surprise in the proof of them. But damages that do not necessarily flow from the principal fact, though possibly attendant upon it, are denominated special. As the law does not imply these, they must, to prevent surprise on the defendant, be particularly specified in the declaration, or the plaintiff will not be permitted to give evidence of them. An illustration of this distinction is furnished by Simpson v. McCoy, 15 Mass. Rep. 493. It was trespass for breaking and entering the plaintiff’s house; and it was held evidence might be given of keeping the plaintiff out, for that was a direct consequence of the wrongful entry. But the party was not permitted to prove, under the alia enormia, an assault and battery committed at the same time, for the defendant cannot be supposed to come prepared to defend against a complaint of which he has no notice. Now injuries to the person consist in the pain suffered, bodily or mental, and in the expenses and loss of property they occasion. In estimating damages, the jury may consider not only the direct expenses incurred by the plaintiff, but the loss of •his time, the bodily suffering endured, and any incurable hurt inflicted; for these may be classed among necessary results. But alleged damages sustained by this plaintiff, from the circumstance of his being the head of a family dependent upon him, have no necessary connexion with the injury done to his person. Such damages may or may not follow a temporary bodily disability. They may, but do not necessarily attend upon it. "Whether they do or not, is to be determined, not by a consideration of the principal fact complained of, but by looking to the pecuniary condition of the sufferer, his capacity for labour, his social relations, and, it may be, to other independent facts. Damages of this nature are, therefore, not direct or necessary, but special, as being possible only, and must be specially averred to let in evidence of them.

We see no objection to the evidence comprised in the second bill. What the defendant offered to show, was but part of the same transaction of which the plaintiff ha^ already given proof. Being strictly res gesta, we do not see how, properly, it could have been excluded. If it be admitted the witnesses went further by proving subsequent attention paid to the plaintiff by the defendants’ servants, it was not a part of the offer. Any injury that might thus have been done to the plaintiff’s case, we are bound to presume was prevented by the instruction of the court on this head.

The third and fourth bills are rightly abandoned, as being founded in a mistake of fact.

The subject of the fifth was clearly evidence, if heard by Laing. A question for the jury was, whether the hurt suffered was ascribable to the négligence of the defendants’ agents, or to the laches of the plaintiff himself. Now, certainly, the warning given by Dougherty, to another passenger, about the time or shortly before the plaintiff’s arm was broken, if heard by him and disregarded, furnished some evidence of gross carelessness on his part, more especially when connected with the caution of the conductor, Minsker. Whether the plaintiff did so hear, was a question of fact to be determined by the jury, under all the circumstances, as he was within ear-shot, and might have heard. In the absence of remark or confession by him, it was obviously impossible to give express proof of the fact.

The remaining bill, also called the fifth in the paper-book, is there by mistake, not being assigned for error.

After a critical examination of the instructions given to the jury, we have failed to discover any error. It is long since settled that the common-law responsibilities that attach to carriers of goods for hire, do not, as a whole, extend to passenger carriers. Like the former, the latter are not insurers against all such accidents and injuries as are not occasioned by the act of Grod, or the public enemy. | But though in legal contemplation, they do not warrant the absolute safety of their passengers, they are yet bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in. damages. Nay, the mere happening of an injurious accident, raises, primd facie, a presumption of'neglect, and throws upon the carrier the onus of showing it did not exist. This punctilious attention to the safety of the passenger embraces the duty, of providing strong .and sufficient carriages, or other conveyances for the journey, in every respect, sea, road, and river-worthy; safe and steady horses, or other means of progression; and skilful drivers, conductors, and other agents, whose duty it is to use every precaution against danger. Should there be the least failure in any of these things, the proprietors have failed of the discharge of their legal obligations. Above all, if there be in any part of the road, a particular passage more than ordinarily dangerous, or requiring superior circumspection on the part of the passenger, the conductor of the vehicle is bound to give due notice of it, and a failure to do so will make his principal responsible. Were these principles sufficiently indicated to the jury by the charge of the court ? It is impossible to read it and not perceive the sedulous anxiety with which the court repeatedly pressed on the jury, the extreme care and watchfulness the law exacts at the hands of a carrier of persons. The instruction upon this head was not only emphatically given, but repeated, so that men of ordinary intelligence could not fail to be impressed with it. No fault can, therefore, reasonably he found with the general tenor of the charge. But . particular features are complained of. Some of them are brought to view by the second and third specifications. We do not, however, see any error here, positive or negative. The court could not with propriety have said what it is complained they omitted, and the questions of fact noticed in the second assignment of error were properly left to the jury. An attempt of the court to assume the decision of these would have been erroneous. What was said as to the cars having passed the bridge safely, before and after the plaintiff’s accident, is sustained by the evidence, and the accompanying reflections of the court are sustained by the law. Indeed, it is difficult to perceive upon what grounds the plaintiff takes exception to them.

But that part of the charge most strenuously assailed, is set out in the fourth error. Complaint is made that the court itself did not undertake to decide that the notice given by Minsker was insufficient. Had they done so, it would clearly have been error; for all the cases agree that the question of negligence, including the sufficiency of a necessary warning, is for the jury, under the guidance of the court, Curtis v. Drinkwater, 22 Eng. C. L. R. 51; Ware v. Gay, 11 Pick. 106 ; and this is the doctrine of Dudley v. Smith, 1 Camp. N. P. 16, the case most strongly relied on by the plaintiff. As every instance must depend on its own circumstances, the law can but lay down the rule that such warning is to be given as will put the passengers upon their guard, leaving it to the jury to say how the fact was. This was done here. The court refused to say the warning was either sufficient or insufficient, but left that to the jury, with proper instructions. As no fault in the car in which the plaintiff was could with truth be alleged, the question of warning on the one hand, and of heedlessness on the other, was in fact the point of the case. Whether warning was given in a manner to call the plaintiff’s attention to it, was fairly put by the court.

It only remains to consider the exception taken to what was said on the subject of the plaintiff’s baggage. Stage and car proprietors stand on the footing of common carriers in respect to the baggage intrusted to their care. It has been a subject of frequently expressed regret by many of our judges, that a common carrier was ever permitted to limit the responsibility which as a general rule binds him for the absolute safety of the goods committed to him. The expediency of recognising in him a right to do so by a general notice, such as was given here, has been strongly and justly questioned, and, in some of our sister states, altogether denied. Were the question an open one in Pennsylvania, I should,, for one, unhesitatingly follow them in repudiating a principle which places the bailor absolutely at the mercy of the carrier, whom, in a vast majority of instances, he cannot but choose to employ. The reasons which would govern me are nowhere better expressed than by Chief Justice Gibson, in Atwood v. Reliance Transportation Co., 9 W. 87. Yet he concludes by conceding that it is perhaps too' late to say that a carrier may not accept his charge on special terms. Since then, it has been expressly decided in Bingham v. Rogers, 6 W. & S. 495, that a common carrier may limit his liability by notice to passengers, such as was given in this case, that the baggage is at their own risk. This must now be taken as the law of this state, and the court below asserted nothing beyond it.

But as carriers are still liable for negligence, they may rebut the imputation by showing that the negligence was on the part of the owner. This is all the court said in its remarks upon Minsker’s testimony on this head. There is nothing in the sixth error.

Judgment affirmed.


author: Burnside, J.

text:
    In re State Street.
    Viewers are not confined in the location of a street to the course suggested in the petition; nor are they or the court limited to the breadth of the street, as there prayed for.
    From the Quarter Sessions of Dauphin county.
    A petition was presented for the extension of State Street along a certain line: the extension not to ex^gd thirty feet in width.
    The viewers reported a street varying in the courses from the line mentioned in the petition, and fixing the width at sixty feet, which was confirmed.
    The exceptions are stated in the opinion of the court.

      Harris, for the exceptant.

      Ayres and Boas, contra.

      July 8.
   Burnside, J.

The proceedings in this case were instituted under and in pursuance of the act of the 9th of January, 1817, entitled “ An act for the better regulation of the borough of HarrisburgParaph. Laws, 13. The act directs how streets and alleys shall be laid out in the borough, and where no special provision is detailed in the act, it is the duty of the courts, in order to' carry out the object and intention of the legislature, and accommodate the public, to assimilate the proceedings to those under our general road system: 1 Barr, 355. It is not alleged but that the proceedings have been in strict conformity to the act, but it is urged and assigned for error that the report of the viewers is not strictly on the ground suggested in the petition. The object was the extension of State Street. The petitioners had no right to designate the exact line of the road; and we think the viewers had authority to fix the centre of the extension to correspond to the centre of State Street. Great latitude must be allowed to viewers in locating a road, particularly as respects the ground which they may deem most suitable: Bryson’s Road, 2 Penn. Rep. 207. In the case of the road from the West Chester road to the road leading from the borough of Chester to Germantown (2 Rawle, 422), it was held “ that where the points are injudiciously assumed, a reasonable exercise of discretion by the viewers cannot but be beneficial, and ought to be allowed.” In this case the exercise of the discretion of the viewers was strictly proper.

Another error urged is, that the court disregarded the prayer of the petitioners, who only asked the extension of State Street by a street thirty feet wide. The viewers, as well as the court, very properly paid no regard to this desire of the petitioners. The viewers laid out the extension, and reported it to the court, declaring that they lelieved the extension of said State Street is necessary for public purposes. The court confirmed the report, and ordered the extension to be sixty feet wide (State Street is much wider). To fix the width of the street was within the province of the court: 4 Yeates, 372; 6 Binn. 26; 4 W. & S. 39; 3 W. & S. 554; 3 Whart. 105 ; 1 Barr, 356; 5 Barr, 515.

We are unable to discover any error in the proceedings of the court, and they are

Affirmed.


author: Gibson, C. J.

text:
    Mitchell v. Hamilton.
    A judgment in a scire facias guare executio non, against an occupant, under a title adverse to that of the judgment debtor, does not preclude the occupant from setting up his adverse title, in an ejectment brought against him by the sheriff’s vendee.
    In error from the Common Pleas of Dauphin county.
    Samuel Cochran by his will in 1816 devised the lands in question to be sold by his executors, William Cochran and another, and the proceeds to be divided among testator’s daughters.
    In 1828, the executors conveyed to Margaret Mitchell. In 1836, Margaret Mitchell appointed William Cochran her attorney, to farm the land for her.
    Whilst he was in possession of the land, judgment was qbtained against him.
    In 1840, Margaret Mitchell conveyed to William Mitchell. In 1842, a scire facias issued on the judgment against William Cochran, against his administrator, widow, and heirs, and with notice to the tenant in possession of the land in question. This writ was served on William Mitchell, who appeared and pleaded “ the judgment is no lien on the lands in his possession.” A verdict and judgment were obtained, and the land sold 'by the sheriff to the plaintiff below. At the sale, notice was given that it was not Cochran’s property. The purchaser brought this ejectment against William Mitchell.

      The court rejected the deeds from Samuel Cochran’s executors, and all the subsequent conveyances, and directed a verdict for plaintiff, reading as a charge the opinion in Minier v. Saltmarsh.

      Ayres and McOlure, for plaintiff in error.
    The ground taken below was that defendant was concluded by the judgment on the seire facias. But a person in possession is only terre tenant so far as he has title from the original defendant. Any other title is independent. It is plain, if he could not set up his paramount or independent title, he would not be concluded. And that he could not, is decided in Catlin v. Robinson, 2 W. 373. It is also plain that he may have a title under the defendant, and an independent one. The former is bound, but not the latter, as was decided in Mitchell v. Kinzer, 5 Barr, 216. The rule in Minier v. Saltmarsh, is based on the rule that want of title in defendant is a bar to an execution on the land; but this is not so here: Jarrett v. Tomlinson, 3 W. & S. 114. Hence, as no defence could have been legally made by Mitchell to the revival of the judgment on the ground of this title, it would be strange if he is concluded thereby.

      Alrielcs, contrlt.
    The point was settled in Minier v. Saltmarsh, 5 W. 293; Heller v. Jones, 4 Binn. 61; Hines v. Jacobs, 1 Penn. Rep. 152; Kiehner v. Dengler, 1 W. 424.
   Gibson, C. J.

No man is more thoroughly convinced, than I am, of the wisdom of abiding by what has been decided. Want of stability in the law, is a public calamity which ought to be averted by almost any concession of opinion ; yet in building up a new system in part on the model of an old one, it is better to incur the reproach of inconsistency than to perpetuate a false principle. Where we have not been following a beaten path, but have been exploring untrodden ground; and where we find that we have lost our way, as we sometimes must; it is certainly the part of wisdom to retrace our steps, rather than to persist in going wrong. I submit that in the present case, in which our own decisions afford no lamp to our feet, and in which the English decisions are misleading fires, the first determination of the point before us ought not to be conclusive. If a single decision were so, many of our first attempts to interpret our digested statutes, grown almost into a code, would do little more than impart immortality to error. Yet, notwithstanding our mixed system and peculiar laws, it will be found that we have adhered to our decisions with admirable constancy, when it is considered that of Professor Grcenleaf’s “ Collection of Cases overruled, denied, or doubted,” comprising almost three thousand in the English and American courts, no more than seventy were decided in this court; and that of these, only some forty were doubted by any of our own judges, the rest having been doubted by judges in our sister states. The number in which the point adjudicated has been overruled, is still much less. During thirty-two years in which I have sat in the court, I can recall not more than eight, certainly not a dozen; while the English judges seem, during the period, to have been playing at loggats with those contained in the old books of reports.

Though, to avoid a too frequent appearance of division, I suppressed my dissent from the opinion of the majority, in Minier v. Saltmarsh, I foresaw that however adapted to execution of land in England, the principle of that case could not be applied to execution of land here without injustice; and in that view of it, I think I was joined by Mr. Justice Huston. At the least, there was a want of unanimity on the bench, which detracts much from the force of a decision as a precedent. It was not denied then, nor is it now, that the principle of the majority is the English principle; but it is not conceded that it can become a part of our law of execution without violating the provisions of more than one of our statutes. There are two cardinal points of difference between execution of land under our acts of 1700 and 1705, and execution of it under the statute of Westminster, the second. For purposes of execution in England, a judgment binds a debtor’s land as a specific thing, not, as with us, his title to it or estate in it, without regard to the question whether he was seised or disseised at the time of the rendition. There, an owner disseised, is not the tenant of the freehold, or, in contemplation of law, an owner at all, his estate being turned to a mere right, which cannot be bound as a subject of execution: here, whether the debtor was seised or disseised, a judgment binds every immediate interest vested in him, which amounts to an estate, perfect or inchoate. Again, land is taken in execution under the English statute and delivered, specijically to the creditor to make satisfaction by the profits of it, without regard to the debtor’s title to it: under our statutes, the sheriff SELLS, and not the land, as the incontestable property of the debtor, but his estate in it, or title to it, AS A CHATTEL, and at the risk of the purchaser, who takes his chance of recovering on it against whomsoever may be in possession under an adverse title. To show the value of these differences, it is necessary to look no further than Jeffreson v. Morton, 2 Saund. 6, where the terre tenant’s plea was that the defendant in the judgment was not seised when it was rendered. That was a,n answer there, to a writ which demanded execution specifically of the land; but it would not be an answer here to a writ demanding execution of the debtor’s estate in it or title to it. True, t^e scire facias does not demand execution of the debtor’s estate or title in terms; but it demands a writ, which commands the sheriff to sell his goods and chattels; and land being a chattel for payment of debts, it demands execution of his estate or title in effect. It certainly does not demand execution of the estate or title of any one else; and it is the constant practice to sell the estate of a party orrt of possession. The sheriff therefore sold, in the present case, whatever the debtor had in the land, whether an estate in possession, a right of entry, or a possibility. The tenant in possession had pleaded that the land was hot bound by the judgment; which meant that the debtor had nothing in the land, for nothing but an estate in him could, by our law, be bound by a judgment or sold on an execution against him. But the plea, however interpreted, was bad; for the judgment creditor was entitled to have execution of even the possibility of an interest in him; and if he had none, an award of execution against him could do no harm to any one else. It asserted a matter with which the tenant in possession under an adverse title had nothing to do; for it was indifferent to him whether he should fight the battle with the judgment debtor, or with a sheriff’s vendee of his right. As the legal effect of the writ was to call on the adverse holder to show why the judgment creditor should not have execution of his debtor’s title, not of the antagonist title, for that would have been absurd, it is difficult to see how anything but the debtor’s title could be involved in it. Then why bring in such a holder at all ? - Merely because the act of Assembly directs notice to be served, not merely on terre tenants, but on occupants, for what reason, it is hard to conjecture. Perhaps the legislature meant to express no more by the word occupant than is expressed by it in Jeffreson v. Morton, 2 Saund. 7, n. 9, and to admit a lessee in possession under a terre tenant, to make any defence that could be made by his landlord. Indeed that seems to be the true construction, and if so, the adverse claimant was, in this instance, improperly made a party; which he might have pleaded in bar. But he pleaded that the debtor’s title was not bound, if he had one, a matter rvhich it did not behove him to plead, but which he might plead with the acquiescence of the judgment creditor, who in this instance, put the fact in issue, and it was consequently the only fact that was concluded by the award of execution. It is true the issue was an immaterial one, for which a repleader ought to have been awarded even after verdict: 2 Nels. Abr. 1042; 2 Lil. 85; but as the court gave judgment on the verdict, though it might have been reversed on writ of error, 2 Lutw. 1608; 2 Lev. 194, it was conclusive of the fact found. What then passed by the sheriff’s conveyance ? The debtor’s title and no more; for no more was awarded to be sold. On the authority of Stileman v. Ashdown, 2 Atk. 608, S. C. Amb. 13-17, and Woodyeer v. Gresham, Skin. 682, it is said by Sergeant Williams, in his fourth note to Jeffreson v. Morton, that a judgment on a scire facias cannot alter the nature of an execution any more than it can alter the nature of the debt; and how a scire facias against a mere occupant can have a greater effect on his title, than if it had been rendered against the judgment debtor, is for those who hold the doctrine of Minier v. Saltmarsh to explain. What is an adverse occupant, who is not a grantee of the debtor by title subsequent to the judgment, brought in, under the act of 1798, to answer ? Positively nothing whatever that concerns him. The acts of 1700 and 1705 direct that land sold on a judgment be held by the purchaser, “ as fully and amply, or for such estate or estates and services, as he or they, for whose debt or duty the same may be sold or delivered, might, or could, or ought, to do, at or before the taking thereof in execution.” What then becomes of a paramount estate which could not be pleaded in bar of execution, and which could not be sublimated or evaporated in the course of the process ? To have pleaded it in bar of execution of the debtor’s title, would have led only to a successful demurrer: and to have pleaded it in bar of execution of a title which was not alleged to have been in him, would have been to take defence against what was not demanded; so that neither the award of execution nor the sheriff’s conveyance could affect it, and unless it were extinguished by some sort of judicial magic, as a fee-tail is extinguished by the magic of a common recovery, it would still remain unimpaired in the tenant in possession. If it would not, the holder of an adverse title out of possession, and perhaps out of the state, might be despoiled of his property by being defaulted on two returns of nihil, without dreaming that it was a subject of litigation. It would not serve him to say that he was not a party, for the record would estop him. To avoid this injustice, the occupant must be allowed to take defence on his independent title, either at the trial of the scire facias, which it would be preposterous to attempt, or else at the trial of an ejectment by the purchaser. But a writ of scire facias quare executio non, is not a writ for thedrial of titles; nor was it intended that a judgment creditor should not be bound by the act of 1807, which declares that two verdicts and judgments in ejectment alone, shall conclude the right; or that he should be allowed to settle, at a dash, not only the question of lien between himself and the debtor, but also a question of title between the purchaser and an adverse occupant. Though the act of 1798 directs that the scire facias be served on occupants, yet, strictly speaking, only the debtor’s subsequent grantee of the fee simple is a terre tenant: 2 Saund. 7, n. 9; and he alone is entitled by the English practice to have a day in court, a tenant for years being entitled to set up his lease, if prior to the judgment, against the purchaser, or if subsequent to it, to have recourse to the covenants in it against his lessor. When a terre tenant, however, has not only the debtor’s title, but a title independent of it, he may avail himself of each in its proper place: of the debtor’s title by showing at the trial of the scire facias that the debtor had parted with it before the rendition of the judgment, or that the lien had been extinguished by satisfaction, release, or want of revival; and of his independent title, at the trial of an ejectment, on the foot of the maxim, that concurrent rights in the same person are to be dealt with as' if they existed separately in different persons. If the first be found against him, he is concluded so far; but he may still recur to the second, which was not involved in the issue. If the party in possession be barely an adverse occupant, he may let judgment go by default, and reserve himself for the contest on his proper battle-ground. He would not be bound even to surrender the possession in the first instance, unless he had derived it from the debtor subsequently to the judgment. The judgment creditor would thus have the whole benefit of the debtor’s title, and why should he have more ?

Eor purposes of execution in England, there is no distinction between the title and the land itself; because, as the law recognises only the person seised as the tenant of the freehold, the estate of the disseisee is regarded as a mere right which cannot even be conveyed ; and the seisin of the debtor, at the time of the judgment, or the subsequent satisfaction of it, is the only fact that can be pleaded in bar of execution. Consequently, as an adverse title existing at the time of the judgment cannot intervene, the land is delivered at once to the tenant by elegit on a liberate; and for that reason it is that the judgment on the scire facias settles all questions with the terre tenant or an occupant under him. Here, however, a party disseised or deforced, may legally do what is prohibited by the English law of champerty; and his title is recognised as a subject of property transmissible by conveyance, and capable of being encumbered by mortgage or judgment; and for that reason, I submit that a judgment on a scire facias, in Pennsylvania, is not conclusive of an adverse title, whether the holder of it was warned or not.

A simple statement of the case before us will show that it is not. It was admitted that the title was in Samuel Cochran, the father, at his death. The plaintiff below claimed as a purchaser at sheriff’s sale, on a judgment against William Cochran, his son, who, though he was for a time his sister’s manager of the land for her benefit, never owned or claimed a foot of it. So far there is no dispute. But the defendant below, who succeeded by conveyance to the sister’s title, having been served with notice, appeared to a scire facias against the son, and pleaded that the land was not bound by the judgment — a matter that was properly disregarded, as the creditor was entitled to have execution of even the possibility of an estate in the debtor. In this ejectment the defendant claimed paramount, by the execution of a power given to the executors of the father’s will, to sell a larger tract, of which the premises were part, with direction to divide the proceeds among his daughters; a conveyance by the executors to his daughter Margaret; and a conveyance by her to the defendant: which were ruled out in submission to the authority of Minier v. Saltmarsh. Were the objections to that case purely technical, I would not consent to raise a finger against it; but as it has worked palpable and revolting injustice in the very case in hand, we must conclude that it would do so again; and we are, therefore, bound to overturn it on every principle of honesty and conscience.

Judgment reversed.


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    Cake v. Lewis.
    The liability of a principal to his guarantee not having paid the money, is not discharged by the bankrupt law. The principal is, therefore, incompetent as a witness for the defendant, in a suit brought by the creditor on the guaranty. The case of McMullin v. The Bank of Penn Township, 2 Barr, 343, re-affirmed.
    When a principal debtor has taken the benefit of the bankrupt law, a person holding a note against him having received and credited a dividend from the assignee in bankruptcy, may recover the balance of his claim from one who had guarantied the debt; notwithstanding evidence of there being yet some small unsettled matters of the estate, the extent of which was unknown.
    In error from the Common Pleas of Dauphin county.
    Assumpsit on a guaranty by defendant, of a note drawn by Hutton to the plaintiff’s wife, before marriage.
    The defendant Hutton was discharged as a bankrupt, and the dividend declared by his estate credited on this claim.
    The first point was, whether Hutton was a competent witness for defendant. The court rejected him.
    2. There was evidence that there were some unsettled matters of his estate not collected by the assignee; the extent of which the witness could not prove.
    The court (Hepburn, P. J.) instructed the jury that the fact of a small balance of the bankrupt’s remaining, would not discharge the defendant from his guaranty.
    This point in the charge, and the rejection of the witness, were assigned for error.

      July 5.
   Bell, J.

The only question pressed here, was directly decided by the ease of McMullin v. The Bank of Penn Township, 2 Barr, 343. There, as here, the defendant, to sustain his offer, relied on the 5th section of our bankrupt act, which permits sureties, endorsers, bail, or other persons having uncertain or contingent demands against the bankrupt, to prove them under the act. But it was said that a guarantor, merely as such, had no demand of any kind, certain, uncertain, or contingent, against the bankrupt, and consequently was not within the provisions of the section. The difficulty and possible injustice to which a surety may be thus subjected, being felt in England, was there remedied by 49 Geo. 3, ch. 12, sec. 8; repeated by 6 Geo. 4, ch. 16, sec. 52, which enacts, “ that any person who, at the issuing of the commission, shall be surety or liable for any debt of the bankrupt, or bail for the bankrupt, either to the sheriff or to the action, if he shall haye paid the debt or any part thereof, in discharge of the whole debt (although he may have paid the same after the commission issued), if the creditor shall have proved his debt under the commission, shall be entitled to stand in the place of such creditor, as to dividends and all other rights under the said commission, which such creditor possessed or would have been entitled to in respect of such proof; or if the creditor shall not have proved under the commission, such surety, or person liable, or bail, shall be entitled to prove his demand, in respect of such payment, as a debt under the commission, not disturbing the former dividends, and may receive dividends with the other creditors, although he may have become surety, liable, or bail as aforesaid, after an act of bankruptcy committed by such bankrupt,” &c. Our bankrupt act does not contain any similar provision; and if it did, it would not help the plaintiff in error, as he had not paid any part of the sum guarantied.

Before the English enactment, a long train of decisions had settled the rule, that when a man undertakes to pay a sum of money for another, his undertaking alone will not create a debt provable under a commission; and if an act of bankruptcy intervenes between the undertaking and the actual payment, it can never be proved, and the creditor can only resort to the bankrupt personally; unless, indeed, the party undertaking was taken in execution for the debt, which is considered equivalent to its satisfaction. Such, I take it, is still the rule here. Now, the competency of the witness offered by the defendant below turns altogether upon the point, whether Cake could have proved the debt in suit under the commission of bankruptcy, not having paid any part of it, or being legally called upon to do so before the bankruptcy ? If this right did not reside in him, at least at the time of Hutton’s discharge — and we have seen it did not — the latter remains liable to pay to the former whatever sum may be recovered from him in this action; and is consequently directly interested to defeat the claim of the plaintiff below. The witness offered was therefore properly rejected.

Under the facts in proof, the charge of the court was as favourable to the plaintiff in error as he was entitled to ask. Indeed, the exception taken to it has not been pressed.

Judgment affirmed.


author: Coulter, J.

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    Dannels v. Fitch. Hale v. Fitch.
    The defendant in an action of replevin cannot protect himself by showing that . an arrangement between the plaintiff and himself existed in regard to the property merely, fraudulent as to creditors or bond fide purchasers: between the parties such arrangement is valid.
    The surety of defendant, in a replevin-bond, is an incompetent witness for the defence.
    In such a suit it cannot be shown by what means the surety was induced to sign the replevin-bond.
    A surety in a replevin-bond, who had notice of the plaintiff’s claim of title, cannot set up an arrangement between the plaintiff and defendant, by which the apparent ownership of the chattel was given to the defendant. Nor can he set up an arrangement between them for an illegal purpose, when he was not defrauded thereby.
    In error from the Common. Pleas of Dauphin county.
    Replevin for a carriage. It appeared that Fitch, who was a livery-stable keeper, owned two black carriages, and that Dannels, who was also a livery-stable keeper, owned two yellow carriages. For mutual accommodation, they made a temporary exchange: Dannels taking a black carriage, and Fitch a yellow one. To prevent, suspicion of partnership, and to enable them to keep up the prices,, it was agreed that the difference in value between the two carriages should be agreed on, but not paid. They then made estimates of their respective stock, and agreed to keep accounts, and divide profits in proportion to their stock. It was further proved, that they admitted a partnership in the profits, but that the ownership of the property should remain as before.
    Two exceptions were made to the evidence:—
    1. In rejecting the surety on the replevin-bond, as witness for defendant.
    2. In not permitting the surety to show that defendant was insolvent, and the object of this suit was to fix the bail, and that he was ignorant of the secret partnership between plaintiff and defendant, and that by reason of the false representations made by plaintiff, he had been induced to sign .the bond.
    In answer to defendant’s points, Eldred, P. J., instructed the jury that the defendant could not set up the secret arrangement between the parties for the purpose of monopolizing the business, nor. was it material that they gave a false impression to the public with respect to their connexion; nor was the plaintiff bound by false representations made by the parties, to impose on third persons. And that the fact that the surety was induced to become bail by reason of false representations of the plaintiff as to the ownership of the carriage, was immaterial in the present case. That the question of fact was, whether the plaintiff was the exclusive owner of the chattel in question.

      Sale v. Mteh. This was an action on the replevin-bond given in the above case. The defendant proved the arrangement between the parties stated above, and the only question ivas, whether the bail in the replevin-bond could take advantage of the fraud on the public, by reason of the arrangement between the parties. The court said the case presented no defence to the action.

      Msher, for plaintiff in error,
    contended, that the agreement was a fraud on the public, and by that agreement the defendant had obtained possession of the carriage, and in enforcing the right to it, the surety who had entered into the obligation on the faith of the apparent ownership, had the right to set up the fraud in the original contract, and thus compel the plaintiff to make good his fraudulent representations. He cited Story on Cont. sec. 546; 1 W. & S. 181.

      McCormick, contrá.

      July 7.
   Coulter, J.

This was an action of replevin to recover a carriage or the value thereof, which the defendant took and claims, the property whereof the plaintiff alleges to be in him. The main point of defence set up is, that by a collusive agreement between the plaintiff and defendant, a sham trade or exchange ivas entered into between them, of a yellow and a black carriage, for the purpose of carrying on their business. The exact mode in which this exchange was to be beneficial to their business, is not very apparent to me, nor is it material. Each one was to furnish his own stock, and they were to divide the product of the business or earnings of all the stock in proportion to the amount furnished by each. It appears, also, that the joint interest in the amount of business was to be secret, and that each was to be held out to the public as doing business for himself. It is contended by the defendant that as the parties had held out to the public that Dannels was the owner of the black carriage, the-one claimed in this suit, and that the plaintiff was the owner of the yellow one, which he returned to „the defendant before bringing this suit; that the plaintiff cannot now contradict that state of things; that it would be against public policy to permit it.

Where an apparent state of the ownership of personal property, produced by the consent and collusive acts of the parties, is made the means of deceiving third persons as to the ownership, and has induced third persons to trust the party on the faith of the apparent ownership, then and in such case the apparent ownership will be maintained and enforced by the law for the protection of third persons. And this will be done on the general principle that the law will not lend its aid in assisting one or more individuals to cheat others.

But admitting this, agreement to have been collusive and fraudulent, as against third persons, it is good and valid as between' the parties to it, and this has been so often ruled that it is needless to cite authorities.

In relation to the objection that the plaintiff and defendant were partners, and that, therefore, this suit cannot be sustained, we see nothing in it. They contracted, in relation to these coaches, as individuals. It is not pretended that there was a joint ownership. On the contrary, whether we regard the apparent or real state of things relating to the ownership of the horses and carriages, it was a distinct individual ownership.

There was no joint stock whatever. No contracts were made by the parties as a firm; no partnership was asserted; no credit given or received by them as a. firm. Each managed his own property as he pleased. The agreement that they should divide the profits of their respective business, according to the amount of stock employed by each, did not constitute a partnership, and could only, in its effect and tendency, have been designed to prevent competition and reduction of prices.

Hale was clearly interested in the event of the suit, and was therefore properly rejected as a witness. The evidence noticed in the second bill of exceptions was irrelevant to the issue trying, and sought to interpose a new issue affecting different parties, and was therefore properly rejected. We perceive no error in the record.

Judgment affirmed.

Sale v. Fitch. The action of replevin was sufficient notice to the bail in the replevin-bond, that the plaintiff in that suit claimed to be the owner of the property. Benezer Hale knew that the property was in dispute between the parties, and he undertook as bail to maintain that the claim of Dannels was the best and was good. The condition of the bond is, that “if the said Dannels, the defendant, shall appear, &c., and defend and make good his claim to the said carriage, and indemnify and keep the sheriff harmless in the premises, then the bond to be void, otherwise to remain in full force and virtue.” The defendant did not make good his claim. On the contrary, judgment was rendered against him for $300 damages, with costs of suit. Why then should not the bail abide the tenor of his bond ?

The matter set forth in the special plea is not sufficient to discharge and exonerate him, because he did not suffer for what he alleges to have been a secret and fraudulent agreement between Fitch and Dannels, by virtue of which a collusive and false state of the ownership of the property existed in Dannels by consent of the plaintiff Fitch. If Hale had trusted Dannels, by reason of and in consequence of that apparent ownership, either with money, goods, or credit, the authorities cited, and the argument used by the ingenious counsel for the plaintiff in error, would have had full play and effect.

But Hale did not enter bail until after the fog was dispersed, and with full notice of the claim of Fitch. He undertook to maintain the claim of Dannels against Fitch, as between themselves and on their own contracts. If he chose to judge of the law, and was mistaken, it was his own fault or misfortune. The law adjudged the controversy against Dannels, and the replevin-bond became absolute.

Judgment affirmed.


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    Campbell v. Jamison.
    Devise to A. and her heirs — the word “heirs” is always construed a word of limitation, unless the contrary intent appears on the face of the will. And a parol republieation after the death of A. with knowledge of that fact, does not alter the legal operation of the instrument, and the devise fails for want of a devisee capable of taking.
    In error from the Common Pleas of Centre county.
    Special verdict in ejectment. In 1827 David Fulton made his will, whereby he devised “ unto my beloved wife Rachel Fulton, her heirs and assigns, all that messuage or tenement and tract of land, situate, lying and being in Spring township, and county aforesaid, with all my real estate whatsoever, to have and to hold to her the said Rachel Fulton, her heirs and assigns, for ever; And lastly, as to all the personal estate, goods and chattels of what kind and value soever, — I give and bequeath the same to my said beloved wife Rachel Fulton, her heirs and assigns, for ever — reserving for William Burris, my nephew, the use and income of the grist-mill for seven years, free of rent, as a full compensation for his assisting in building the said mill. And I further reserve to William Burris, the new field that he cleared, to have it for-years, in full for clearing the said field, and at the end of seven years the said William Burris to give up full possession of the above reserved gristmill and field to my wife, Rachel Fulton, or her heirs and assigns, with reasonable wear and tear excepted. My just debts to be paid by my wife Rachel Fulton.”
    Rachel Fulton died in 1838, leaving collateral heirs, the plain- • tiffs in this action. After her death, testator, by parol declarations in the presence of two witnesses, republished his will, and died in 1841. The defendants were collateral heirs of the testator.
    Woodward, P. J., gave judgment for defendants.

      Sale, and Ourtin, for plaintiffs in error.

      Burnside and McManus, contó.
   Coulter, J.

That a will may be republished by parol was distinctly decided in the case of Jones v. Hartly, 2 Whart. 103. The same point was ruled in 3 Wash. C. C. Rep. 481.

There is nothing in the act of 1833 to interdict such republication by parol; but it must have the same legal operation at the time of such republication, as when it was made. If, by a change of circumstances, the act of republication makes a difference in the disposition of the estate, it becomes so far void; because then it would in effect be allowing a disposition of the estate by parol. The words here, as used in the will, were clearly intended as words of limitation according to their common acceptation; and nothing in the will authorizes the conclusion that the testator intended to use them as words of purchase when applied to the heirs of Rachel Fulton. He says, to be sure, that at the end of seven years, during which time William Burris was to have the land, that he should give it up to Rachel Fulton or her heirs or assigns. But that provision obviously contemplated that Rachel should survive him, and might then die or sell after the estate had vested in her, and that in such event, if the seven years had not expired, the estate should be delivered up by Burris to her heirs or assigns; a mere supererogatory provision, but one which is perfectly consistent with the legal interpretation of the will. The other interpretation would imply that she might sell during the life of the testator, before the will was consummated: a thing which we cannot suppose was within the intent of the testator, as every man is presumed to know that he may alter or revoke his will at any time before his death. It has been held that a republication is a new devise: Pringle v. McPherson, 2 Brevard, 279. Of course it is the devise as it stands in the will, and if the word “heirs” is a word of limitation in this will, of which we have no doubt, the devise is to a person not in esse, and therefore void. But the point of this case was ruled in Dor, &c., v. Kelt, 4 T. Rep. 601. A. devised to B., and the heirs of her body after default of such issue then over. B. died in the lifetime of A., and then A. by codicil confirmed his will. It was held that the heir of B. took nothing, though it appeared that A. knew of the death of B. and the birth of her son before he made the codicil. Making a codicil is a republication,, so that the cases are throughout analogous.

Judgment affirmed.


text:
    Stehley v. Irvin.
    Vendee of land may deduct from the amount of Ms purchase-money the value of an easement existing at the time of his conveyance — but which had been destroyed by a subsequent grant by his vendor to a purchaser without notice.
    In error from the Common Pleas of Centre county.
    Weaver, being the owner of a mill and tavern, constructed a pipe to convey water to the latter through his own land. While this easement was in use he conveyed the tavern to Bottorf. Weaver then conveyed the mill property to Irvin, without a reservation of this easement. ' At the time of this conveyance Irvin had no notice of the easemént, nor was the pipe used for the purpose for which it was constructed. And it was shown that to give Irvin the full benefit of his purchase, he would be obliged to destroy the easement.
    The action was brought on a bond given by Irvin for his purchase-money.

      Woodward, P. J., instructed the jury that the value of the easement was the measure of the defendant’s damages, which he might deduct from the purchase-money.

      J. T. Sale, for plaintiff in error.
    McAllister, contó.
   Burnside, J.

The hills of exception to evidence are not sustained. No rule of the law of evidence was violated. It would be a waste of time to discuss the bills in detail.

Nor are we able to discover that the error assigned to the charge is in a better situation. We think the court adopted the correct rule in estimating any damage Irvin sustained. It was certainly proper for the jury to regard the whole purchase.

Judgment affirmed.


text:
    Eckel v. Jones.
    A note drawn, by A. to tbe order of B., and by Mm transferred to C., may be shown by parol to be within, tbe meaning of a written guaranty by a tMrd person of the note of A. payable to C. 0
    In error from the Common Pleas of Dauphin county.
    This was an action on a guaranty by defendant “of John Smull’s notes, payable to John Eckel, for $304.”
    The plaintiff proved two notes drawn by Smull to the order of John Snevily, of the same date with the guaranty, and in the aggregate amounting to $304. He then gave evidence that they were transferred to' plaintiff, and that defendant had admitted he had guarantied these notes.
    The court refused to permit the plaintiff to read the notes to the jury, and this was the error assigned.
    Rawn, for plaintiff in error.
    The question is one of identity. If the notes were those referred to, they are payable to Eckel, since he was the holder, 1 W. & S. 208; 3 lb. 272.

      Kunkle, contó.
   Coulter, J.

The court erred by drawing to itself the decision of the cause on that which was • a matter of fact and not a matter of law. Tbe question was, wbat notes of Smull payable to John Eckel were intended by tbe parties to be covered by tbe contract of •guaranty. Tbe court, on tbe assumption that notes in wbicb Snevily was the payee, but wbicb bad been transferred to Eckel, would not be covered by tbe words “payable to Eckel,” rejected tbe evidence. There was the mistake of tbe learned judge. Tbe two notes offered in evidence were precisely of tbe same amount as tbe notes stated in tbe guaranty; and it was not alleged that there were any other two notes made by Smull and payable to Eckel. But tbe ground taken by tbe learned judge in rejecting tbe evidence is fallacious. He says that tbe notes covered by tbe guaranty were alleged to be payable to Eckel, and tbe notes produced were payable to Snevily. It is true that Snevily was tbe payee nominated in tbe notes ; but they were made payable to him or order, and they were endorsed to Eckel. There is no exact technical meaning to be applied to the word payable, when used in contracts. It is to be taken according to the common acceptation of tbe word, in tbe popular language of tbe country, and in that sense means, due to, to be paid to, wbicb would exactly fit tbe condition and description of Eckel in regard to these notes and the guaranty. But tbe papers rejected ought to have been admitted in evidence. There was abundance to be left to tbe jury; and they should have been instructed that it was a question of fact, to be determined by them, as to wbat notes were covered by tbe contract of guaranty, according to tbe true intent of tbe parties at the time.

Judgment reversed, and a venire de novo awarded.


text:
    Fitch v. Mann.
    Adverse possession tinder claim of right extends to so much of the land within another’s survey as is within known bounds, up to which a elaim-has been made by one residing on a part of the land claimed, not within the lines of the survey; and the adverse possession is not confined to the land actually occupied.
    In error from the Common Pleas of Wyoming county.

      July —. The plaintiff below had the legal title under a warrant in 1803. The defendants claimed by adverse possession, commenced by Daily, of a part of the land within the lines of plaintiff’s survey. Daily had entered in 1801 on adjoining land, without colour of title — and had erected buildings and cleared some land, his clearing and acts of ownership extending over the line of plaintiff’s survey. It appeared that Daily had not marked the lines of his claim, but that he made claim up to certain known lines. In 1816, Daily having title to the adjoining tract, sold that and his right of occupancy in plaintiff’s tract to Fitch, the defendant. The question was, whether Fitch could set up adverse possession to so much of the land as lay within plaintiff’s lines — his dwelling-house not being within those lines, and there being no marked lines to define his claim.
    The court in their charge to the jury said: — ■
    There is evidence that Daily, while in possession, claimed to the town line and the swamp, which would embrace the land now demanded. There is evidence also that Fitch, while in possession, claimed to the same extent. There is also evidence that Daily and Fitch cut wood upon the unimproved land. There is no evidence of any line or boundary made by either Daily or Fitch, to define the extent of their claim, nor is there any colour of title shown by either of them, defining the extent of their claims. Daily cleared over his lines without colour of title. If he 'transferred any interest beyond the deed, the extent was undefined. There has never been an actual residence on the land.
    In this case there was no colour of title which defined the extent of the claim, either of Daily or Fitch. There was no residence on the lands, and no survey or location of any claim by which the lines were defined. It is therefore the case of a man in possession of his own land, under title, who clears over his line a few acres upon his neighbour’s land. The land actually occupied for twenty-one years, is all which can be held in such a case. In such case, the owner being in the constructive possession of the land, is ousted of no more than is in the actual adverse possession of the person who clears over.

      Harrison Wright, for plaintiffs in error.
    Daily was an intruder, but did not Fitch enter under colour of title ? if he did, then his right to hold under the statute, is coextensive with the purchase from Daily,, whose possession on the Wonder tract was well defined by known boundaries, and covered all that part in controversy: it was said in McCall v. Neely, 3 Watts, 72, that “an entry is by colour of title when it is made under a bond fide and not pretended claim to a title existing in another;” “to give colour of title would not seem to require the aid of a written conveyance.” “An .occupant who has entered by colourable title, for purposes of residence or cultivation, is in adverse and exclusive possession of all the lands within his survey:” Seigle v. Louderbaugh, 5Barr, 490. We claim to have paid all the assessed taxes since our possession began: this is in part denied, but there was neither proof or allegation that the plaintiff had paid any. Our payment of taxes and purchase of Daily, clearly gave us colour of title, and the omission by the plaintiff to pay the taxes, while he knew us in possession for upwards of forty years, was conclusive of abandonment upon his part: Kite v. Brown, 5 Barr, 294; Waggoner v. Hastings, 5 Barr, 303. Constructive possession of ownership gives way to occupancy of a part, with colourable claim to the whole.

      A non-resident disseisor may hold more than that actually occupied : Porter v. Me Ginnis, 1 Barr, 416. Residence and payment of taxes are not necessary parts to an occupant’s title who claims by possession and designation of boundaries; this ease is not in any way affected by the principles asserted in the charge; and to this point the authorities are full: Royer v. Benlow, 10 S. & R. 308; Criswell v. Altemus, 7 Watts, 580, 581; McCall v. Coover, 4 W. & S. 162; Sorber v. Willing, 10 Watts, 142; Cluggage v. Duncan, 1 S. & R. 118; Johnston v. Irwin, 3 S. & R. 292; McCall v. Neely, 3 Watts, 72. The designation of boundaries was sufficient: Hockenbury v. Snyder, 2 W. &. S. 251. We were entitled to go to the jury upon the questions, Whether we had not entered by colour of title; and, secondly, Whether we had not been in the actual, adverse, and continued possession of the lands demanded for twenty-one years before suit brought. The facts most clearly show that it was not the case of a mere clearing over his lines by the owner, but it was a hostile entry as early as 1801, and held openly and notoriously and without molestation for forty-four years; and although the plaintiff was aware of it during all such time, he neither asserted his claim by suit, or by payment of the taxes; it is a stale claim, and now only made, since the labour and money of the defendants have given value to the lands by clearing and improvement. By the evidence, and upon the authorities cited, we say the plaintiff was ousted of all the lands claimed in his writ — and as to this we were entitled to go to the jury, free from the doctrines contained in those parts of the charge of which we complain.

      Maxwell, contrd.
   Burnside, J.

I deem it unnecessary to take up the errors assigned in detail: The material grounds of defence, and the manner the court ought to have submitted the case to the jury, are here explained. Mann, the plaintiff below, acquired title to the warrant, survey, and patent of Warder by deed, dated the 31st October, 1803, from the owners. The exceptions to the admission of the paper title of Mann have been abandoned in this court. When he made the purchase in 1803, from Jeremiah Warder and others, it is clear that he had the legal title of the commonwealth to the lands in question.

The defendants below, as heirs of Nathaniel Fitch, who had purchased the improvement of David Daily, jun., who had entered on the land as a settler, and intruded as early as 1801 or 1802; built a house and some out-houses, cleared some land, raised grain, and paid taxes up to 1816, when he sold to Fitch, who entered upon the premises, and continued until death, in 1840. This ejectment was instituted in 1845. Fitch’s whole claim, as shown by the diagram, was 137 acres and 47 perches; nearly all of this was within the Warder survey. His house was a few feet out of the. Warder line. His spring-house, part of the orchard, which was planted shortly after Daily settled, as well as the greater part of his cultivated ground, was within that survey.

Neither Daily nor Fitch had a survey. I agree there was some contradiction in the evidence, and I do not pretend to state it minutely, but to show that there was evidence on the part of the defendants that ought to have been submitted to the jury. Armstrong proved that ho moved on the land as the tenant of Fitch in 1816, after Daily left it, and occupied the place for seven years. The orchard was hearing when he went there — Fitch showed him the lines running down to the birch corner; he claimed part of the swamp, he claimed to the certified Connecticut town lots, and on the other side cleared to Oliphant’s, in the neighbourhood of two hundred acres.

Post proved that Daily got married forty-six years ago, and then moved on the land with his family, and commenced clearing and planted an orchard. He claimed to the town lines, and on the other side to the defendant’s tract. He forbid people from cutting timber. In short, the evidence proves that the place was used by Daily and Fitch, and the tenant of Fitch, as other farmers used their farms. The boundaries are well ascertained either by Pennsylvania or Connecticut titles which interfered with the survey of Warder. A number of witnesses were examined on both sides as to the extent of the claim and the improvement. I have only brought the evidence so far into view as to show that the case should have been put to the jury to inquire whether there had been an actual, adverse, and unbroken possession of twenty-one years, of that part of the Warder survey which was within the claim of Daily and Fitch. An intruder who enters upon land which is unimproved, and claims to certain natural or artificial boundaries, plain and visible (as in this case), is protected by the purchase of 1754 and 1768, as if he had had his claim run round and marked by a surveyor, when his possession is unbroken, and he pays his taxes for the land he claims.

The course of decision on this subject will be found in Meade v. Shaw, Barlow v. Roger, Reed v. Goodyear, Jones v. Parke, and McCall v. Neely, and the whole subject fully delineated by our late Justice Kennedy, in Criswell v. Altemus, 7 Watts, 565.

The learned judge fell into error in this case when he instructed the jury that “ there was no colour of title which defined the extent of the claim, either of Daily or Fitch, as the residence was not on the land, and neither had survey or location of their claim.” Daily, who moved in the woods in 1801 or 1802, claimed a vicinage to that improvement, wdiich was the land in question. The line of the Warder survey happening to run close to his house, his improvements being on both sides of that line, and his improvement and settlement being continued and unbroken, that line would not destroy his title.

It is not the case of a man in possession under title of his own, and clearing over. The cause ought to have been put to the jury as in Criswell v. Altemus. The jury found an unbroken possession and continued claim of the ground in question for twenty-one years, adverse to Mann: the statute was a title, and prevented a recovery by the plaintiffs.

Judge Kennedy, after a review of all the decisions, has, with his usual clearness and accuracy, informed us that a person who enters without title, or colour of it, upon an unseated tract of land held by another, under a title derived from the commonwealth, as an intruder, erects buildings thereon, suitable for the accommodation of his family, which he removes to the same, making it his place of abode and occupying the whole of the survey or tract, as the owner thereof, by clearing and fencing more or less of it, from year to year, as suits his ability or convenience, for the purpose of tillage, meadow pasture — or using the woodland thereof at the same time for the ordinary purposes that such part of a tract is usually used and occupied for, in the section of the state where it lies, returning also the whole of the tract as his own to the assessors, and paying the taxes assessed thereon; acquires thereby an actual, exclusive, and adverse possession of the whole tract or survey, including the woodland, as well as of that which he has cleared and enclosed, whereby the owner was ousted: and if the latter does not enter or bring his action, within twenty-one years from the time at which the intruder first entered and took possession, he will be barred of his right thereto by the statutes of limitations. But in taking possession of the land, or if afterwards within the twenty-one years the intruder declares or acknowledges that he is taking or holding the possession of the land for the owners thereof, it cannot be deemed adverse, and consequently the statute will form no bar to the owner’s recovery of the land: Criswell v. Altemus, 7 Watts, 566. I hold these principles to be sacred — the true doctrine. Apply them to the case before us: was not Mann ousted of all the land claimed by the defendant for more than twenty-one years ? This was a fact for the jury, which I apprehend they would have found but little difficulty to determine under the evidence.

Judgment reversed, and a venire de novo awarded.