author: GibsoN, C. J.

text:
    THOMAS against STEWART.
    A female having1 appealed from the judgment of a justice of the peace, and entered m-to a recognizance with a surety in the usual terms, it was held: That there could be no recovery against the surety in such recognizance, upon a breach of its condition.
    EitBoit to the Common Pleas of Mifflin county.

      William Steioart, the plaintiff below, and defendant in error,
    obtained a judgment before a justice of the peace against Mary Marie, from which she appealed and entered into a recognizance in the usual form with Griffith Thomas, the plaintiff in error as her surety. On the appeal, Stewart succeeded in affirming the judgment of the justice. This action was then commenced by Sleiv-art against Thomas on the recognizance; and the plaintiff assigned as a breach of the condition thereof, that Mary Marie did not prosecute her appeal with effect, and that Thomas did not surrender her to jail on or before first day of the next term after judgment. The cause was arbitrated and the arbitrators awarded in favor of the plaintiff, upon which judgment was entered; to reverse which this writ of error was sued out.

      J. Fisher for plaintiff in error.
    The recognizance was void, because the surety could not legally comply with its-terms by imprisoning a woman. Cited act of 8th February, 1819, Purd. Dig. 59, neto Ed.

      Banks for defendant in error.
   The opinion of the court was delivered by

GibsoN, C. J.

Cases analogous to the present, have been decided on the provisions of the arbitration law of 1809, which dircc-ted a recognizance to be acknowledged with condition to pay the debt and costs, “or surrender the defendant to the goal of the proper county.” Yet it was determined in Carpentier v. The Delaware Insurance Company, 2 Binney, 264, that a corporation was entitled to appeal without such recognizance, because the bail would not have' had the advantage of all its conditions, inasmuch, as a corporation is an artificial body, that cannot be surrendered; and in the Germantown and Perkiomen Turnpike Company v. Naglee, 9 Serg. & Rawle, 227, a like construction was made of the clause on which the present question arises. Although an appeal by a corporation has since been particularly provided for in the act of the 22d of March, 1817, by directing a recognizance with condition to pay whatever shall be recovered,the preceding decisions are entitled to entire respect, in determining the general question of construction. But the case of a female is attempted to be distinguished from what the case of a corporation was previous to the last mentioned act, inasmuch as her exemption from arrest as secured by the act of the 8th of February, 1819, would present no natural impediment to actual surrender of her person, to give her bail, the benefit of all the. conditions of the recognizance. Butin the case of special bail, whose responsibility is precisely that of the surety of an appellant under the act in question, a principal privileged from commitment in execution is never actually surrendered, the law esteeming it nugatory to surrender one who" would be instantly discharged; and the practice therefore is to enter, at once, an exoneretur on the bail-piece. There is, then, a potential, if not actual impediment to the surrender of a female, whose privilege under the act of 1809, can be made as extensively beneficial as it was intended to be, only by preventing her from incurring responsibilities, that would be inconsistent with the full enjoyment of it. In the Pennsylvania Insurance Company v. Jinthony’s Executors, 5 Binney 508, a construction perfectly analogous, was made in the case of an appeal by executors under' the arbitration law of 1810, who were allowed to appeal without bail, though their persons might’ readily have been surrendered in discharge of the usual recognizance. There is, perhaps, still greater reason to exempt the appellant here, as an arrest by her bail, even for form’s sake, would be in some measure a violation of a statutory principle; and as her appeal was allowed on terms which the law did not warrant, the arbitrators erred in sustaining a suit on the recognizance.

Judgment reversed.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    MILLIKEN against KENDIG.
    Real estate having been sold by the sheriff, on an execution against an heir, to whom the estate descended, it was held,! That judgments against the ancestor from whom the estate come, must be paid by the sheriff’ out of the proceeds of the sale.
    EehoR to the Common Pleas of Mifflin county.
    In the court below, this was an issue directed to try the right to money in the hands of the sheriff, which was made out of the sale of the real estate of Henry Comfort.

      Jacob Comfort, being indebted'by judgment, died, and his real estate descended to his children, of whom Henry' Comfort was one. Judgments were obtained against Henry, and executions issued, which were levied upon his interest in hjs father’s estate, which" was subsequently sold and the proceeds of Sale brought into courf'for appropriation. It was claimed by the creditors of the father and the son, between whom this issue was joined.
    The court below was of opinion that the purchaser took just such interest as Henry Comfort had in the estate of his father; and that it would be subject in his hands to the debts of the father, and therefore the creditors of the son were entitled to the proceeds of the sale."

      Benedict for plaintiff in error.
    Real estate must be' sold clear of incumbrances. Nichols v. Postlethivaite, 2 Dull. 131. Bank of N. JLmer. v. Fitzsimons, 3 Bin. .358. Barnet v. Washebaugh, 16 Serg. & Bátele, 410. Commonw. v. Alexander, 14 Serg. & Bawle, 257. Gilmore v. Commonw. 17 Serg. & Bawle, 276.. Bank of Pennsylvania v. Winger, 1 Bawle, 295. McLanahan v. McLanahan, 1 Penn. Bep. 96. Finney v. Commonw. 1 Penn. Bep. 240. Mc-Grew v. McLanahan, 1 Penn. Bep. 44%

      J. Fisher for defendant in error,
    Insisted that the injustice that would be done to the defendant whose property was sold, was a sufficient reason why the law should not be so construed as contended for by the plaintiff in error. It would be paying the father’s debts out of the interest of one of his children, to the exclusion of the others, who would be thereby benefitted. Cited Kershaw v. Supplee, 1 Bawle 134.
   The opinion of the court was delivered by

Rogers, J.

I cannot distinguish this, from the case of the Commonwealth for the use of Gurney’s executors against Alexander, 14 Serg. & Rawle, 257. The 11th section of the act of 1806¡, Was not intended to prohibit the sale of an undivided interest in an entire tract of land, nor has the plaintiff in error, so construed the law. After having himself sold the share of Henry Comfort, he now seeks to throw the prior incumbrances on the .vendee of the sheriff. This cannot be,,as has been repeatedly decided. The sheriff’s vendee takes the land, discharged of the liens of incum-brances, unless it be in certain excepted cases, of which this is not one. Whether the lien creditors of Jacob Comfort are entitled to the whole price for which the interest of Henry Comfort was sold or to a proportional part, it is unnecessary to decide. Henry Comfort, or his creditors, would be undoubtedly entitled to a contribution, but in what way this may be effected, has not been settled.

Judgment reversed, and a venire de novo awarded.


text:
    MYERS against HARVEY.

    personal property purchased at a sale by the sheriff, and left in the possession of the defendant, under a lease from the purchaser, is not subject to be sold again as the property of the same defendant, to satisfy a debt which was due at the time of the first sale.
    ERROR to the Common Pleas of Centre county.
    This was an action of replevin, in which Nathan Harvey and Co. were -plaintiffs, and John M. Myers was defendant. •
    The material facts which gave rise to the question of law in this case, were these. John M. Myers being indebted, his personal property consisting of horses, wagon, ploughs, &c. and grain growing in the ground, was levied upon a fi. fu. in favor of Joseph TV. Williamson, and was on the 10th June, 1825, sold by the sheriff, and purchased by Nathan Harvey and Co. the plaintiffs, under these circumstances. Myers requested Harvey and Co. to attend the sheriff’s sale and buy the property, saying at the same time, that if he got liberty to cut the grain, the proceeds of the sale of it would pay the amount for which the whole property would sell. A member of the firm attended, and bought in all the property: he then executed a written lease of it to Myers, and left it in his possession. He also took Myers’ note for the amount, with the understanding, that it should be given to Fidler, the father-in-law of
      Myers, if he would undertake to pay Harvey and Co. the money. Fidler refused to pay the money. The following harvest Harvey and Co.paid the hands for cutting the crop: they received the grain and gave Myers credit for it. Myers had occasion for some small advances, which he received from the store of Harvey and Co. Upon settlement in October, 1826,- Myers was still in debt to Har-vcyand Co. who considered the property as theirs, until their debt was paid.
    Previously to this transaction Myers was also indebted to John McGhee, who obtained a judgment against him, and issued a fi.fa. to November term, 1S26, upon which the sheriff levied the same property in the possession of Myers, which had been purchased by Harvey and Co. On the 9th November, 1836, the property was again sold and purchased by McGhee. And the question in this case was, whether Harvey and Co. or McGhee were entitled to the property. ~ ;
    The court below, (Burnside president) was of opinion, that under all the circumstances, the plaintiffs were entitled to recover, and so instructed the jury: and to the following points put by defendant’s counsel thus answered:
    1. That if the jury find the facts in this case to be, that the property in dispute was left in the hands of Myers, for seventeen months after the date of the sheriff’s sale; that it is per se evidence of fraud as respects a judgment-creditor, and in point of law, the plaintiffs cannot recover.
    ' To the 1st point the court answered; that the leaving of the property after a fair purchase at sheriff’s sale for seventeen months, in the hands of the debtor is not per se evidence of fraud, as respects the judgment creditor, whose judgment was prior to that sale.

      2. That the taking of a judgment note on settlement, from Myers, for the balance due to Harvey and Co. and retaining that note, in their possession up to the trial of the cause, was in point of law, an extinguishment of the lease, so far as it respected creditors; and left the property subject to execution creditors in the hands of John M. Myers.

    To the 2nd point the court answered: This point is fully answered in the charge. We said under the evidence that if the jury believed, that the taking of the judgment-note was as stated by the witness, the taking of it, and the retaining it in possession up to the trial of the cause, is not in point of law, an extinguishment of the lease, so far as respected McGhee, and the property was not legally subject to his execution.
    3. 'That if the jury find that Harvey and Co. blended the sale and lease of John M. Myers’ property with other dealings and transáctions, and received payments and made a settlement as of one general account, and took a note for the balance, it is an extin-guishment of the lease, and the plaintiffs would not be entitled to recover.
    To the Sd point the court answered: This point is already answered; the court do not think that the blending in this case as proved, and the facts as submitted to the jury, with other transactions, nor the payments as proved, nor the settlement made, nor the taking of the note under the facts disclosed for the balance, is an extinguishment of the lease, nor will we say to you that the plaintiffs are not entitled to recover.
    4. That the plaintiffs’ leasing the property to Myers, by which they were to receive a compensation for the use of it, takes this case out of the exception, that a purchaser at sheriff’s sale may, out of humanity, leave the property in the hands of the former owner;, and is of itself a fraud in law, and will bar the plaintiffs’ recovery.
    The 4th point is already answered: The court do not think that the compensation for the use of the property, takes this case out of the exception, that a purchaser at sheriff’s sale, may out of humanity, leave the property in the hands of the former owner, and it is not itself a fraud,, and will not bar the plaintiffs’ recovery.
    5. If the jury believe that Harvey and Co. from the first of June, 1825, until 16th October, IS26, received from Myers, the amount of @170, the plaintiffs are not entitled to recover..
    To the 5th point the court answered: That if Harvey and Co. have received their debt, tire plaintiffs cannot recover. They received the grain — they credited it at the net proceeds without regard to the sale — that credit did not amount as proved to @170, of which the jury are the judges. This court do not think that the advances to cut the harvest, will destroy the plaintiffs lien on the other goods, under, the facts disclosed and proved in this case. The court have already given an opinion as to the @13 and the @20. If the jury are of opinion that the plaintiffs have received their debt, except these two items, the plaintiffs are not entitled torecover. Y ou have heard M^Gormicle’s evidence, that after the sale of all the' property, and applying it to the purchase of the property, and the advances to cut the grain, they will still lose between 40 and 50 dollars by this transaction.
    ■ The errors assigned were to the answers of the court.

      jBlanchard for plaintiff in error,
    Cited Clow v. Woods, 5 Serg. & Raiole, 273. Cunningham v„ Neville, 10 Serg. & Raiole, 201. Babb v. Clemson, lb. 419. Cameron v. Montgomery, 13 Serg. & Raiole, 12S. Marlin v. Mathiot, 14 Serg. & Raiole, 214.

      Petriken and Valentine for defendants in error.
   The opinion of the court was delivered by

GibsoN, C. J.

Reten thm of possession by the former owner of a chattel sold at sheriff’s sálele not an index of fraud, because the sale is not the act of the person retaining, but of the law; and because a judicial sale, being conducted by the sworn officer of the court, shall be deemed fair, till it is proved to be otherwise. It may like a judgment, however, be shewn' to be collusive and fraudulent in fact; but the presumption of the law is favorable to it in the first instance. A chattel thus purchased, then, may safely be left in the possession of the former owner on any contract of bailment that the law allows in any other case; and the question is not whether the purchase was fraudulent, but whether the contract with the former owner, vested a present ownership or a contingent interest, to take effect on the performance of a condition, to determine which, we must treat the contract as if it were made, not with the former owner, but with a stranger. As it appeared on the evidence, the case seemed to be that of a bailment, with a superadded agreement to vest the title in the bailee when he should pay a sum certain; and such an agreement is clearly consistent with public policy. No facility to fraudulent dealing is afforded by it, that is not afforded in the same degree, by a naked contract of bailment. Such a transaction includes two distinct, but consistent contracts — the one taking effect, if at all, when the other is spent. The contract of bailment preserves the ownership of the bailor during the particular relation created by it, and the contract of sale which supercedes it, transfers the title as soon as it is called into action, by payment of the price. An agreement to sell at a subsequent day is valid, when accompanied with present possession; but valid according to its terms, the property remaining exposed to the demands of the vendor’s creditors in the mean time. All that remained, then, was for the jury to ascertain whether the sale were in its terms a present and absolute, or a future and contingent one. But the defendant insists that the acceptance of a note for the price was payment in point of law, whether the sale were absolute or not. The consequences of the act, however, depended on the intent of the parties, which was a matter to be determined by the jury. Undoubtedly, a vendor may take a bill or note on his own terms, and consequently without binding himself to treat it as payment. The inquiry, then, was whether the terms of the agreement were such as to pass the title on the delivery of the note, or only on payment of it. That was a question of fact, which was properly left to the jury. The other points submitted — that the property was left too long in the debtor’s possession--that this was mingled with other transactions — and that the lease was in effect a bill of sale, — presented no definite questions of law on which the judge could charge-at all, or, at most, none on which he could charge in the defendant’s favor, and we think that in every respect the cause was properly put to the jury.

Judgment affirmed.


text:
    KENDALL against LEE.
    The hare receipt of assets is not the commencement of an administration of them* but for wasting- and converting them by the first administrator, an administrator da bonis non has no title to sue at law or in equity; the remedy being immediately by the creditors or parties ultimately entitled.
    A bond taken by an executor or administrator for the debt of a decedent, discharges the old'duty, and creates a new one; and an administrator de bonis non could not sue on such bond.
    Evidence which should not have an influence upon the minds of the jury, should not be heard by them. A judge renders his best service to the cause of justice, when he prevents a jury from disregarding the law, by depriving them of a pretext for it.
    Appeal from the Circuit Court of Northumberland epunty, held by Gibson, C. J.

      Samuel Kendall died intestate, and his real estate, by virtue of an order of the Orphans’ Court, was sold by his administrator, John Kendall, to Joseph Wallis, who purchased for James Lee. Bonds were given'by James Lee and John Shriner his security to John Kendall, for the purchase money; These bonds were sued, and judgment obtained thereon for $679 21, in April, 1820. Upon this judgment executions were issued, and in 1823 were levied upon James Lee’s land, which was sold to John Cowdeniov $125. This money was brought into court, and part of it appropriated to another judgment. John Kendall died; his death was suggested on tire record, and his administrators, John Miller and John Bechle were substituted, in whose names, as administrators, a scire facias was issued against James Lee and John Shriner,- to continue the lien of the original’ judgment. It was upon the trial of the issue upon the plea of payment, with leave, &c. put into this scire faci-as, that the questions in this case arose. After the foregoing facts had been established, the defendants gave evidence, that after the death of John Kendall letters of administration, de bonis non, upon the estate of Samuel Kendall, were issued to Joseph Ken-dallj and then offered in evidence a receipt of Joseph Kendall to
      James Lee, for #326 87, off' account of the judgment of John Kendall v. Lee and Shriner. This was objected to by the plaintiff, On the ground that Joseph Kendall, as the administrator de bo-nis i&n of Samuel Kendall had no right to receive the money; that the judgment could only be discharged by a payment to John Kendall’s administrators. The court sustained the objection and rejected the evidence. The defendant then offered in evidence .the following agreements, entered into between John Cowden and James Lee after Cowden purchased Lee’s property; and between Joseph Kendall and James Lee.

    “A memorandum of an article of agreement between John Coto-den and James Lee, both of Northumberland, county of North-umberland, and state of Pennsylvania, Witnesseth, that the 29th day of November last, John Cowden purchased at sheriff’s sale, in Sunbury, the farm of James Lee, on the North Branch of Susquehanna', near Northumberland, containing one hundred acres, more or less, for the sum of one hundred and twenty-five dollars.Now it is agreed that Cowden grants to Lee the privilege of disposing of the said farm, within three years, bn condition, that the said Lee pays to the said Cowden the amount of the purchase money, with interest; also, the amount of a judgment and book account, with interest, that Cowden holds against the said Lee: whatever surplus money remains from the proceeds of the sale of the farm, to be at the disposal of Lee; Cowden is considered as sole owner of the farm, to rent and receive the proceeds of the same; ’ granting unto Lee the privilege of taking what fire-wood he may want for his own house. As witness our hands and seals, this 23d day of December, 1823.”
    “Articles of agreement made between Joseph Kendall, of Reading, administrator de bonis non of Samuel Kendall, deceased, of one part, and James Lee, of Northumberland, of the other part, Witnesseth, that John Cowden, Esq. and wife, of Northumber-land, did convey to the said Joseph Kendall a tract of .land, containing 100 acres, strict measure, lying in Point township, North-umberland county, adjoining land of George Grant and others, which the said Cowden purchased at sheriff’s sale, on the 29th day of Noyember last, in the town of Sunbury, as the property of James Lee. Now the said Joseph Kendall, agrees to rent the aforesaid premises to the said James Lee, for one year from the 1st day of January, 1824; for, the'sum of #36, to be paid' to the said Joseph Kendall at the expiration of the year. • The said Lee is to cut no more timber than is wanted for firewood 'on the premises, and to keep the fences in repair on said lanc\, and to leave the farm in as good repair as he receives it; to farm the land as is customary, and to pay the taxes. 'Now the said
      Joseph Kendall, sympathizing with the said James Lee, agrees with him that if he, the said Lee, can secure a purchaser for said land, between now and the first of January, 1825, who will pay in cash, or on such conditions as the said Kendall will approve, the said Lee is to have credit on a judgment against John Shriner, Sen. and James Lee, recorded in Sunbury for all sums which he can get more than $600, besides paying the said Kendall for travelling, and other necessary expenses in conveying said land. Now, if the said Lee pays the rent as per agreement, no interest is to be paid on the $600; but if the rent is not paid, it will be added to the $600, and then all sums which he can get for the land above $636, besides those travelling and other expenses, shall be on account of the above judgment in favor of John Kendall. Kendall is considered the sole owner of said land, to rent and to receive the same; the said Kendall further grants the said Lee as much fire-wood as he may want in his own family. Witness our hands, this 21st of January, 1824.
    Should James Lee, within the above stated time, procure a purchaser who will pay so much for the above premises, that the amount above the $600 should more than pay the above judgment, the balance the said James Lee shall receive for his own private use.”
    And again, in connection with these agreements offered the receipt of Joseph Kendall, before rejected, accompanied by parol proof, that Miller, the administrator of John Kendall, ratified and adopted the agreement. This offer was also rejected, and the cause went to the jury, who, under the direction of the court, found a verdict for the plaintiff.
    The defendant appealed.

      Lashells and Bellas for the appellant.
    Upon the death of an administrator, his successor, the administrator de bonis non, is entitled to have all the securities of the estate, which were in the hands of the first administrator; the bond, then, upon which the original judgment in this case was rendered, and the judgment itself, were part of the assets of the estate; and being so, it was perfectly competent for the administrator de bonis non to receive the money and receipt for it in discharge of the judgment. Cited Slat., 17 Chas. 2 Chap., 8. Robt. Dig., 369. Coxe’s Dig., 726, No. 41. Bank of Pennsylvania v. Jacobs, 1 Penn. Rep., 474. Upon the same principle the agreements should have been received, together with the receipt offered; but when accompanied by proof that they were ratified by the administrator of the first administrator, in whose name the judgment was, we can conceive no rule of law or just policy which would exclude the evk dence.

      Greenough for appellee.
    The money claimed to be recovered in this suit is the proceeds of the sale of lands of the intestate; for the right appropriation of which the administrator gave security to the Orphans’ Court; . would -it not be a breach of the recognizance thus entered into, if ' the purchase money were permitted to go into the hands of an ad- ■ ministrator de bonis non, who had given no security at all for its • 'rightful appropriation? The administrator de bonis no7ihas jurisdiction only over the goods and chattels-of the intestate, which re-i'mained unadministered. Certainly the judgment against Lea ' ánd Shriner was not assets unadministered.
   The opinion of the court was delivered by

GibsoN, C. J.

That the administrator de bonis non derived an authority from the grant of administration to give an acquittance for this money, will hardly be pretended. He was entitled to the assets remaining in specie, whether in money or goods, and whether in the hands of the late administrator or outstanding. The bare receipt of assets is doubtless not the commencement of an administration of them; but for wasting or converting them, an administrator de bonis non has no title to sue at law or in equity, the remedy being immediate by the creditors or parties ultimately entitled. Coleman v. McMurdo, 5 Rand., 51. And the same law seems to have been held in Allen v. Irwin, 1 Serg. & Rawle, 544. But the principle has technical reason, as well as authority, to support it. The Ordinary in England, or the Register here, has no jurisdiction of any thing that was not a part of the decedent’s personal estate at his death; nor power to commit the administration of any thing else to his officer. An outstanding debt may, with strict propriety, be said to remain in specie, the chose in action of the decedent, though suit were brought to recover it by the first administrator, that being but a means to procure the receipt of it, which does not confound it with the administrator’s own property; and for this reason an administrator was entitled by the common law toa new action, instead of an execution of the first administrator’s judgment, since given him by statute, as he still is to the proceeds of his execution when brought into court. But it never has been .held, here or elsewhere, that a bond taken by an executor or administrator for the decedent’s debts, does not discharge the old duty and create a new one. The instances in Roll’s Abr. 602; 6 Mod. 91, and 10 Mod. 315, are authorities directly in point. An action can be maintained on it only by the obligee; and that no judge has ven-'iured, iii these days of juridical reform, to say that even he can sue on it in a representative character, is sufficient in all reason to prove that it creates but a personal duty. But were all this otherwise, there is another reason, which I take to be conclusive, — the bond On which this judgment has been obtained, was given for the price of the decedent’s land sold by the first administrator, by virtue of an order of the Orphans’ Court.

The commission of an administrator de bonis non, extends but to the residue of the goods committed to the first administrator by the original grant. What these were is perceptible at a glance, in the bond required by the act of 1794, the condition of which is, that the administrator shall “administer according to law, the goods, chattels and credits of the deceased, at the time of his death.” These are the subjects of an administration proper, and precisely of that which is granted by the Register here, in the same way that it is granted by the Ordinary in England, where an administrator can have no business, with the real assets, actual or contingent; and where the bond required by the 22d and 33d Car., 2 c. 10, is nearly word for word the same as that required by our act of assembly. The business of an administration proper, then, relates to but what was the personal estate of the deceased at his death; and to that only does the security given to the Register extend. For this "reason it is that an administrator who sells real estate, gives additional security; and not to the Register, but to the Orphan’s Court from which he derives his authority, for the faithful execution of the trust, and payment of the money to such persons as the court, by its decree, may direct. And thus far the law was determined in Reed v. The Commonwealth, 11 Serg. & Sawle, 441. In the event of his death, then, who shall perfect his administration of the real assets, and save the condition of his bond? To say nothing of the inability of his personal representative to put those assets into the hands of anyone not designated by the Orphans’. Court without forfeiting the bond, it is plain, that if he retains them with a view to a performance of the trust, the parties beneficially entitled will have a double security, and that if they are put into the hands of the administrator de bonis non, they will have no security at all: ought not that alone to be decisive? But the power of such an administrator is derived exclusively from the grant of the Register, which extends not beyond his own jurisdiction, and consequently not to the real assets. How, then, can he succeed to a title derived irom a decree to which neither he nor the Register was party or privy? The special administration under the decree of the Orphans’ Court, could not pass as an accessary by the grant of an officer who did not create it, and consequently had no power to transfer it. It is no answer to this last objection, to say that it rests on technical grounds; nor to the previous one, that an administrator is entitled to administer the surplus proceeds of an execution levied of land, though he .give no additional security, and though the Register from whom he derived his authority, had no jurisdiction of the subject-matter. All jurisprudence is founded more .or less, in artificial reason which cannot be disturbed without endangering the superstructure; and for the rest, the right of an administrator, to have, without security given, the proceeds of land converted by an execution, is a consequence forced on the courts by the necessity arising from the want of legislative provision, and not the legitimate subject of an inference applicable to a case in which there is no such necessity. A more plausible inference might be drawn from the provision which authorizes an administrator de bonis non, to execute the deed in the event of the administrator’s death, without having completed the title. That duty, however, like the agency of a sheriff, whose predecessor has died in similar circumstances, is purely ministerial, and without relation to the trust of the' money. In fact, where there is no administrator de bonis non, the law allows the Orphans’ Court to use the sheriff, as an instrument to pass the title; yet no one ever suspected that his agency in this particular, gives him a right to demand the money of the administrator’s representative.

But it is said, that proof of an authority from one of the plaintiffs, for the administrator de bonis non, to receive the money, was offered at the trial and rejected. To determine that, it is necessary to ascertain the circumstances. By virtue of an execution on the present judgment, the land of the defendant Lee had been sold to Mr. Coioden for a small sum, who agreed to permit Lee to dispose of it for his own benefit, on condition that he would re-im-burse Coioden what he had paid to the sheriff, and also discharge two other debts, which he owed him. Coioden subsequently conveys to the administrator de bonis non, who in turn lets the land to Lee, with permission to sell it in a given time, and credit the present judgment with the residue of the purchase money, having first paid six hundred dollars, and a small sum for expenses, due the administrator de bonis non, in his oion or another’s right; and it is the ratification of this agreement by one of the plaintiffs, that was offered to be proved. The offer then disclosed an agreement between a debtor and one of his creditors, who having become the owner of the debtor’s land at an undervalue, permitted him to sell it, and on condition that he would first pay the creditor’s debt, and apply the residue of the purchase money to another debt due by him to another person. Was there any thing in that, like an authority for the first named' creditor to receive both debts? Had he stood in the relation of a stranger to the decedent in whose right the judgment was obtained, no one would imagine that such a thing was contemplated. But he certainly was a stranger to the debt, and there is the same reason why he shóuld not be supposed to exercise the ownership of it. In its letter and its spirit, then, the whole effect of the agreement as ratified by one of the plaintiffs, was that the proceeds of the sale should go to satisfy both debts, the one due the administrator de bonis non, having a preference; but that surely implied no authority in any one hand to receive for both. It is said, however, that the question 'of authority was for the jury, who might have found in favor of the affirmative, had the evidence of it been left to them. That is, in a very few-words, a very satisfactory argument for its rejection. It is in cases like the present, where to avoid a real or fancied hardship, the jury are predisposed to find in a particular way, on a mere show of evidence, that rules of competency produce their choicest fruit, and are therefore to be most sternly enforced. The judge renders his best service to the cause of justice, when he prevents a jury from disregarding the law, by depriving them of a pretext for it. But was the existence of the authority, really a question of fact? It depended on the construction of a written agreement between the administrator de bonis non, and one of the defendants, which was ratified, as it is said, by one of the plaintiffs. Was that for the jury? The counsel himself did not treat it as such. Instead of apprising the judge that such was the drift of the matter, and advancing directly to the point proposed, as he certainly would have done, had he felt himself warranted to assert the existence of an authority in fact, he proposed to prove the bare fact of ratification, and leave it to its legal consequences. This being the main, perhaps the only point in the cause, we see no reason to disturb. the verdict.

Huston, J. and Ross, J. dissented.

Judgment affirmed.

       In Hosier v. Arundel, 3 Bos. & P. 7., Lord Jlhanly, though evidently disposed to favor the right of the executor to sue in a representative character, wherever the thing to be recovered would be assets, was constrained to admit that he cannot so recover on a bond made to himself, and for this very reason, because an administrator de bonis non could not sue on it, or prevent the personal representative of the first administrator from retaining.


author: Per Curiam.

text:
    BLACK against POLLOCK.
    A cause being ordered on for trial, in the Circuit Court, the plaintiff not being ready for trial took a non-suit; at the next court, he moved the court to take off the non-suit, which was refused; whereupon he appealed. Held-. That the appeal wastoo late.
    Appeal from the Circuit Court of Northumberland- county.
    This cause was on the list for trial at a Circuit Court held in April, 1830, when the plaintiff moved the court to continue the cause for reasons which were set out in an affidavit, but which the court decided were insufficient; whereupon the plaintiff took a non-suit. At a Circuit Court held in April, 1831, the plaintiff moved the court to take off the non-suit, and read additional affidavits in support of the motion. The court refused to take off the non-suit, and the plaintiff appealed.

      Pacher and Lashells for appellants.

      Greenough and S. Hepburn for appellees.
   Per Curiam.

The appeal is to be made to the term succeeding the decision. But the case is said to be within the rule, because the motion, which was the subject of the decision, was not made until the last session of the Circuit Court. What is a postponement of the time for moving, but an evasion of the limitation which the law has affixed to the right of appeal? The successful party has no motion to make; and being without means to bring on a final determination, he is not to be exposed to the caprice of his antagonist, who, by withholding his motion, might otherwise procrastinate the event for an indefinite time. Whatever then might have been the appellant’s merits originally, he could lay a foundation for a review in this court, only by a motion made at the time.

Appeal quashed.


text:
    KLINE against GUTHART.
    When an action is on a contract with the decedent; or for a tort to the goods before they have actually come to the executors possession; it can be maintained by him only on the decedent’s title, and consequently only in a representative character: but when it is a contract, expressed or implied, which has sprung up or been created since the decedent’s death; or for a tort to the goods in the executor’s posscssion;or for converting or detainingthem, having escaped from his possession; or for the price of them, having- been sold by him; it can be maintained only in his own right, and the naming himself executor, will not change its nature.
    A promise by husband and wife during coverture to pay the debt of the wife, contracted before marriage, and which was barred by the statute of limitations, will not revive such debt, so as to give a right to recover against the wife, after tho death of her husband.
    Heferees having reported for the plaintiff, and in a note annexed to their report, stated, that the debt was revived by such promise; it was held: That although the referees had in this particular, mistaken the law, yet it could only be remedied by an application to the court below, and could not be taken advantage of on a writ of error.
    Euitoit to the Common Pleas of Northumberland county.
    This action was originally brought by Peter Gutharf, administrator of John Epley, deceased, against Philip Moore and Mary his wife, formerly Mary Epley; a narr. was filed for goods, wares and merchandize sold and delivered-by the plaintiff to the said Mary Epley whilst sole; and also for money had and received by the said Mary whilst sole, for the use of the said plaintiff’s administrator. In fact, the claim was for goods sold to Mary Epley at the vendue of the personal estate of John Epley, deceased. Issues were joined upon the pleas of non assumpsit infra sex annos and payment.
    By consent of the parties -the cause was submitted to referees under the act of 1705; who made this report, “We find for the plaintiff $330 40, the amount charged on the vendue list and $300 41, interest upon the same, amounting to $630 81.” This was signed by the referees; and immediately beneath their signatures, was subjoined this note: “In the above case the demand was barred by the statute of limitations, but referees considered it, revived by a promise of defendant and her husband (now deceased) in his life-time.”
    The death of Philip Moore, before final judgment, was suggested; and the intermarriage of Mary his widow with Jacob Kline after final judgment.
    In the court below, exceptions were filed to the report, which were over-ruled. The defendants then sued out this writ of error, and filed the following exceptions:
    1. The declaration joins causes of action which could not be joined; and states promises which will not support the action.

      S. The action for goods, wares and merchandize sold and delivered by the plaintiff, should have been brought by Peter Guthart, in his personal character, and not as administrator.
    The promise of defendant Mary Epley, while a feme-covert could not take the case out of the statute of limitations, and enable the plaintiff to recover on the original cause of action.

      Lashells and Bellas, for plaintiffs in error,
    Argued that the promise of a married woman, will not in law operate to take a case out of the statute of limitations, and cited 1 Wils. Bac. M. 497, 499. Clancass’ Husband and Wife, 21. 3 Pr. Wms. 237. 1 Chit. Plea. AH. Lloyd v. Lee, l Strange, 94. Grasser and Wife v. Echart, 1 Bin. 575. The new promise is the cause of action, if it can be sustained at all, when once barred, and the old debt is the consideration. The case of Fields’ estate, 2 Rawle, 351. Hudson v. Carey, 11 Serg. & Rawle, 10. Ban-forth v. Culver, 11 Johns. 146. Tillinghast, 190.

      JDonnel for defendant in error.
    The note subjoined to the report of the referees, formed no part of the award; it was merely the opinion of the referees about a particular part of the evidence. The award being good upon its face, why the referees found in a particular way, cannd,t be enqui-red. into, or taken advantage of in this court, Harher v. Elliott, 7 Serg. & Raiole, 284. Bellas v. Levy, 2 Rawle, 21.
    In an ordinary case, a promise of husband and wife, would not bind the wife; but in this case the debt was that of the wife; and the statute of limitations only taking away the remedy and not the right, the promise of the wife will revive it.
   The opinion of the court was delivered by

GibsoN, C. J.

The first assignment of error is without foundation in fact, the counts in the declaration being all in the same right; for though the money is averred in the second to have been received to the plaintiff’s use as administrator,the remedy is substantially his own, and the naming himself administrator, is description, if not surplusage. The rule is that where the action is on a contract with the decedent, or for a tort to the goods, before they have actually come to the executor’s possession; it can be maintained by him only on the decedent’s title, and consequently only in a representative character: but where it is on a contract, express or implied, which has sprung up, or been created since the decedent’s death; or for a tort to the goods in the executor’s possession; or for converting or detaining them, having escaped from his possession; or for the price of them having been sold by him; it can be maintained only in his own right, and the naming himself executor will not change its nature. “Where,” says Lord Hale, “the foundation of an action appears of necessity to commence in the testator, the writ shall be in the detinet, as if they bring debt on a judgment given in trespass brought by them of goods taken out of the possession of their testator; contra if it were de bonis testa-toris extra custodiam suam. But if they take an obligation for a contract made to the testator; or if they sell'goods of the testator, it shall be debet and detinet because the commencement of the action was in the executors.” F. N B. 274 note. In support of this broad and comprehensive distinction between the title of the living and that of the dead, the books are full of authorities; among which it is sufficient to refer to Roll’sMr. 602., Lane, 80. 1 Mod. 62, Cro. Jac. 685. 2 Keble, 68. Latch, 220. 1 Vent. 109. Cro. Car. 219. L. Raym. 436. id. 1413. Barnes’ notes, 132. In some of these there is a want of precision which might lead a superficial observer to suppose that an executor may, in particular circumstances, sue in the one character or the other: a matter that has in modern times produced much misconception, here and in England, on the part of those who were content to draw from the abridgments, instead of the original fountains. Thus it has been said that if the executor bring the action as such, when he can bring it in his own right, he shall pay costs if he fail. The meaning will, I think, appear to be, that naming himself executor, gives him no advantage belonging to the character, where he sues substantially on his own title; and that it is the title set out, and not the addition, which is decisive of the question of character. Of this, there is no doubt in the action of debt, where the criterion is the mode in which the cause of action is laid — whether in the debet and det-inet, or the detinet only — as it is in other actions, the inherent quality of the cause of action itself.

In Reynell v. Langcastle, Cro. Car. 545, it was determined, that an executor cannot have an action in the detinet, except where it might have been maintained by the testator: and in accordance is Rolls. Mr. 602, where it is said he cannot sue in the detinet, on an obligation for the testator’s debt made to himself. In 6 Mod. 91, the same law is asserted of money received to his use after the testator’s death; and also in 10Mod. 315, of a promissory note made to him as executor. In Com. Dig. Pleader. 2. D. 1, it is said, he cannot have an action in the detinet on his own contract, though he name himself executor; as debt for rent on his own lease of land which he had as executor. In no case, perhaps, is he bound to omit the appellation of executor; but it is clear that where the cause of action is essentially his own, it operates, if at all, only as description. Thus in Horsey v. Dimocke, 1 Vent. 119, it was ruled that if a plaintiff name himself executor, where the cause of action is in his own right, it is surplusage; and in Worfield v. Worfield, Latch. 220, the same thing is repeated in terms, and said to hare been described also in Taylor’s case in the Common Pleas. In, Jenkins v. Plombe, 6 Mod. 91, which was an action by husband and wife executrix, for money had and received to their use as executor, Lord Holt said, that if the receipt of it were after the testator’s death, and by consent of the executor, the debt would be a new creation for which the action would have to be in the plaintiff’s own right, and that naming himself executor is of no further account than to show how the original right came. It is evident, therefore, that he did not consider it as a part of the title. He further said, that where one sues as executor, “though he has judgment, yet till execution, the thing recovered is not assets in his hands; and both he and Mr. Justice Powell declared that “where the thing is assets in the executors or administrator’s hands before recovery, they shall pay costs in a non suit:” in other words, that the suit shall be in their own right for whatever had at any time been in their possession. In Nicholas v. Killegrew, 1 L. Raym. 137, where the plaintiff had declared for so much paid to his use after the testator’s death, Treby. Ch. J. said, the naming of himself executor was not to any purpose. And by him and Mr. Justice Poioell, “In all cases, where an executor or administrator sues for a debt or other thing belonging to the testator, and grounds his action on the same contract that was to the testator, he shall not pay costs if he fail in the suit; but if he grounds his action on a contract, express or by implication of law, which accrues to him after the death of the testator, there the action lies in his own name, and the naming himself executor is void. So in Wallis v. Lewis, 2 L. Raym. 1214. Lord Holt said, that the action being grounded on a promise to the executrix herself, naming her executrix was surplusage. And thus much for actions ex contractu, which it appears can be maintained in a representative character, only where the decedent was a party to the contract. As to actions for the goods, or injuries in respect of them, Lord Holt says in the samé case of Wallis v. Lewis, that if an executor bring trespass or trover for the testator’s goods, taken out of the executor’s possession, he may name himself executor if ho will, but that he need not produce the will in court, as he is sufficiently entitled on his own possession. And this distinction between the plaintiff’s own contract or possession, and the contract or possession of the decedent, will be found to reconcile all the cases in the books that may be quoted here, except Bull v. Palmer, 2 Lev. 165, and Boggs v. Bard, 2 Rawle, 104. There is, indeed, a series of recent English decisions on this subject arranged in 1 Saund. on Pled and Ev. 496, which like many others, lessens, if it does not extinguish, our regret at the Act which prohibits the reading of British precedents subsequent in date to the declaration of our independence, as authority in our courts. It may be safely affirmed that the recent decisions of the English judges, have done more to unsettle the law in the United States, than have all the American decisions together. The archtype of the series alluded to, is the apocryphal case of Bull v. Palmer, just mentioned, the principle of which has been extended in Cowell v. Watts, 9 East. 405, toan action for the price of goods sold by the executor; yet if a bond had been taken for the price, it could have been recovered, according to Hosier v. Arundel, 3 Bos. & P. 7, and two cases still later, only by the obligee in his own right; and thus is the mere evidence of the debt and not the nature of it, made the criterion of the right! In fact, the difference in this respect, between a bond and a note, is expressly recognised in Partridge v. Court, 5 Price, 512. It re-' quires but another step to authorise an executor to enter into trade with the assets and contract responsibilities in a representative character. Into such miserable inconsistencies do they fall, who forsake the beaten paths of the common law.

Did the question involve no more than matter of form, the distinction would not be worth the trouble of a discussion. But it involves not only an exemption, in certain cases, from payment of costs by the plaintiff, but the joinder of jarring counts in the same declaration, where the damages to be recovered are entire. Above all, it involves the preservation of known modes of proceeding according to the course of the common law, which ought never to be changed, but to avoid some practical mischief or serious inconvenience. In actions against executors or administrators, who are answerable, conformably to a corresponding principle, in the de-tinet only on a responsibility of the decedent himself, the distinction is productive of consequences so palpable and substantial as to make it unnecessary to name them. For the applicability of the principle to the case of an executor defendant, a train of authorities was given in Morrow v. Brenizer, 2 Rawle, 185; and though the conclusion drawn in that case is said, in M'Culloch v. Sample, 1 Penn. Rep., 422, to be unsatisfactory, I presume (for there is no reason or explanation given as to the ground of the remark) that it was not intended to over-rule the authorities themselvep. I mention this case of M’Culloch v. Sample, to mark my dissent from it, that having been omitted in the report.

The remaining assignment of error- is, that the arbitrators misconceived the law in treating the promise of the’ husband as a revival of the promise of his wife; and certainly since the doctrines of revival has been exploded, the new promise alone can be made the foundation of an action to avoid the statute of limitations; insomuch that the promise of the husband here, so far from operating on the rights of the wife after the dissolution of the coverture, would not have given a joint action against them in his lifetime. But whether the mistake of the arbitrators in this respect, be the subject of a writ of error, is the concluding inquiry raised by the argument

The statement appended to the report is certainly as much a part of it, as if it were introduced into the body of the award. What then is the nature of an award under the Act of 1705, in which are specially stated the grounds on which the arbitrators proceeded? So early as Williams v. Craig, 1 Dall. 338, and in many cases since, it was treated as a verdict; and indeed its effect is, in terms, declared 'to be such in the Act itself. To give it effect, the concurrence of the court in which the action was depending, is required; and that is to be withheld wherever the court would, for the same cause, set aside a verdict: so that its interference is regulated, as in the granting or refusing of a new trial, entirely by discretion. But a writ of error lies not to the verdict of a jury, but to the judgment which the court has rendered on it, and that will not be erroneous by reason of the verdict if the latter be unexceptionable as to form, or, in other words, if it be framed according to those rules which the law requires to be observed in the constitution of it. If the jury have mistaken the law, Without having been misdirected, the case is proper for revision, not in a superior court, but the one in which it was tried, Even an error of the court in the course of the trial was without other remedy till the Slat. Westm. 2. gave the bill of exceptions, which however can not be sealed by arbitrators. In what then was the error here? Certainly in refusing to Set aside the report. That however like a refusal to set aside a verdict, rested entirely in discretion, and is not a matter for revision here. But the arbitrators voluntarily put the ground of their decision on the record and the judgment of the court is said to be erroneous because rendered on premises that do not warrant it. We have a fashion of calling every thing a part of the record, that is committed to paper and filed in the cause. Yeti doubt whether an averment would not lie against this part of the report; and if it would, the court was not bound to proceed on the matter contained, as judicially established by record proof. It is the fact of mistake, and not the manner in which it is made appear, that is material to an exercise of judicial discretion; for whether it be disclosed by parol or the written admission of the arbitrators themselves, it is matter for the exercise of discretion still, in regard to which the court below is to be governed by its own sense of propriety. It is further argued, however, that this report is in the nature of a special verdict; and that there is error in the rendition of a judgment for the plaintiff on the facts found. But no fact is found at all, nor any thing stated but a conclusion of law and the means used to avoid it. A special law. contains a reference of the law to the court; but here the arbitrators have, for reasons set forth awarded generally and determined both the law and the fact. But' they- had no authority to find the facts specially, had they been so disposed. By the terms of the submission, they were required to dispose of the' whole controversy; and to award that certain facts exist, would be to award nothing. Neither could they delegate to the court a¡ power that had been delegated to themselves. It furnishes no objection to this conclusion, that it prevents a decision of the law by the court in the last resort. Arbitrators are judges chosen by parties who resort to this species of tribunal voluntarily and consequently not only subject to all the incidents of its jurisdiction, but with-presumptive notice of what those incidents are. Neither of' the assignments of error, therefore, is sustained.

Huston, J. dissented, Ross, J. took no part, not having heard the argument.

Judgment affirmed-


author: Huston, J.

text:
    HUBLEY against KEYSER.
    The object of the act of 13th March, 1815, was to make the Bale for taxes, and' treasurer’s deed confer a title without proof of any one prerequisite, except that the land was unseated, and that a tax was charged by the Commissioners, regularly or irregularly, that this tax was unpaid, and the land sold and not redeemed within, two years.
    Appeal from the Circuit Court of Northumberland County, held by Gibson, C. J.

    This was an action of ejectment in which the heirs of John Hub-ley were plaintiffs and Henry Keyset’ and others were defendants;
    The plaintiffs gave in evidence a warrant to John Hubley of the’ ¿1st March, 1774, for 300 acres of land, lying eastward of Christian Wertz, “bounded North by a large Ridgé, South by the foot of Mahanoy mountain, including a quantity of land mostly timbered with chestnut, and including a spring, one of the heads of the west branch of-little Shamoken Creek.” Also awarrant of the same date to Christian Wertz “for 300 acres of land on the heads-of the west branch of little Shamoken, near and above a survey made for one Knable, adjoining the foot of Mahanoy Mountain.” On these two warrants surveys were made on the 15th July, 1774, and returned for patenting 12th March, 1785; on the Hubley warrant 315a acres were surveyed, and on the Wertz warrant 346'i acres. A patent issued to John Hubley, 17th March, 1785. Here the plaintiffs rested.
    The defendant gave in evidence, a warrant to James Brown, dated 12th April, 1774, for 300 acres of land, “about eight or nine miles from Sunbiiry, to include a spring and adjoin the foot of big Mahanoy hill; the water of said spring runs into the Susquehanna in Augusta township” &c. Also a warrant of the same date to Robert Atkinson for 300 acres “adjoining lands applied for by James Brown, and to include Bentz’ hunting cabin, and to include the path that leads from Fort Augusta to Tulpehocken, in Augusta township.” Surveys upon these warrants, dated 15th July, 1774, by Charles Stewart, on the first of 346a acres, and on the second of 321í acres, were given in evidence; upon the latter there was this indorsement: “May 8th, 1786, brought to the Surveyor General’s Office by Reuben Haines. ” A deed from Robert Atkinson to Reuben Haines, dated 3d Aug. 1785, was then read. Under this title the defendants claimed. They also offered in evidence a deed dated 13th Aug. 1816, from Henry Vanderslice, treasurer, to those under whom the defendants claimed, which recited a sale for county taxes from 1806 to 1813, and for road tax from 1806 to 1812 inclusive. This was objected to. They then offered the ¡ ‘tax book” from the commissioners’ office; and to lay the ground for its admission, John G. Youngman, a clerk in the office, was called, who said: “This book was in the office, and was called the unseated land book: it was in the office when I was there: it is the original book in which the taxes for these years were entered. There might be another book of the sort for, Shamoken, but none for Augusta township. In Augusta the Commissioners taxed the lands without assessment: — we could not get the assessors to do it, as they could not find the land. I came into the office in 1818. The practice was the same before I came in.” The defendants also, with the deed, offered in evidence a receipt for having paid the tax for which the land was sold, and for having given his bond for the residue of the purchase money. The objection was over-ruled and the evidence given. Samuel Bloom’s evidence, which had been given before arbitrators at a former trial of the cause, was then read, the substance of which was, that the warrants under which the plaintiffs and defendants respectively claimed, were equally descriptive of the land in dispute; — that the land was seated in 1808, and has been so ever since; — that he was assessor of the township in which the land in dispute is, for the years 1806-7, and valued the tract in the name of John Hubley, as a settled tract; there having been some labour expended upon it preparatory tó a residence:— That he gave notice to the person who had done the work, of th.e valuation and rate of tax, previous to the appeal; when he was informed by him that he would not proceed with his improvement, as he understood there was an adverse title: — That he informed the Commissioners of this, and the tract was transferred from the duplicate of settled lands, to the unseated list. The clerk in the pro-thonotary’s office stated that he had made search in his office, and could not find that any bond to the commissioners had ever been filed before 1830, and that he could not find any bond applicable to this sale. The defendants had been in possession for more than five years before this suit was brought.
    Upon the first point, his Honor the Chief Justice charged the jury: That both the warrant of the plaintiffs, and that of the defendants, describe the land with reasonable certainty; and theplantifPs warrant being the elder, was entitled to the prior survey. But the right to priority might be lost by negligence. There was but one survey made; and the first question is for whom was it inade? If Reuben Haines procured Charles Stewart or his assistant to make it, he was entitled to the benefit of it; and Hubley, who in that case took no step to perfect his title, would be postponed. This is a question of fact for your determination. If Haines had the survey made in fact, Wm. Gray, who succeeded to the office of Deputy Surveyor, had no right to return the survey for Hubley, and a patent founded on such fraudulent return would give no right, The presumption is, that every officer does his duty; and ( as it would have been a breach of duty in Charles Stewart to return the survey on the younger warrant, if the older had been in his hands, the presumption is that it was not. The evidence of the sui'vey having been made for Haines, is the fact that the survey returned for Haines in 1774, on the Brown warrant, calls for this tract as Haines’ by the name of Jttleinson. The testimony also of Capt. Boyd seems to shew the fact to have been so, by the concessions of Wm. Gray, not contradicted by Hubley.

    As to the second point, he instructed the jury that the trea-, surer’s deed, under the evidence in the cause, vested a good title in the defendants. The jury found a verdict accordingly.
    A motion for a new trial having been over-ruled, the plaintiffs appealed.

      J. Hepburn and Greer for appellants.
    The evidence of who procured the return to be made upon the respective warrants, was somewhat uncertain; the weight of evidence was that it was returned upon o.ur warrant. Whenever there are conflicting rights in the hands of the Deputy Surveyor, they must be executed according to their priority. Gray v. McCreary, 4Yeates494. Duncan v. Curry, 3 Bin. 14. Maus v. Montgomery, 15 Serg. & Raiole, 224. The defendant having entered no caveat against the return of our survey, but permitted a patent to issue without objection; and never having perfected his own title by a patent, it should now be postponed to ours. 2 Smith’s Laxos, 255.
    An assessment is essential to the validity of a sale for taxes; for the act of assembly which requires that the assessor shall be an inhabitant of the township, and shall be sworn to perform the duties of his office, is a perfect nullity, if the commissioners may make the assessment in their office, as they have done in this case. It is proved conclusively by the witness called by the defendants themselves, and by the tax books, that the unseated lands were never assessed. But the treasurer’s deed recited a sale for taxes for years, when it is admitted that there was a settlement and residence on the land; the taxes for seated and unseated lands cannot be blended so as to authorize a sale for the whole. The tax of seated land is not a charge upon it. Burd v. Ramsey, 9 Serg. & Rawle, 109,
    The proof was uncontradicted, that no refunding bond, as is required by the act of assembly, was given and filed by the pur» chaser.

      Greenough and S. Hepburn for appellees.
    When the fact is conceded, that our warrants were equally descriptive of the land in dispute, with those of the plaintiffs; and the well settled principle of law is conceded, that priority may be lost by negligence, no difficulty can arise in the determination of the first point of this case. The law is admitted, and the fact was fairly left to the jury.
    Whatever may have been the practice, with regard to the assessment of unseated land generally, in Northumberland County, as to this land, the proof is conclusive, that it was assessed by the-assessor of the township for the years 1806-7. The 4th section of the act of 13th March, 1815, is a conclusive bar to the plaintiff’s recovery. It is not pretended that the plaintiffs did within two years after the sale for taxes, tender the amount of the tax for 1806-7, (when they admit the land was unseated,) and the costs: nor did they pretend to shew, that the tax had been paid previously to the sale, “but in no other case,” is the language of the act of assembly, ft and.on no other plea, shall an action be sustained.” And in this, position we are expressly sustained by the decision of this court in Stewart v, Shoenfelt, 13 Serg. & Rawle, 360.
   The opinion of the court was delivered by

Huston, J.

This cause depended below, and in this court on some questions of description, in the warrants and survey; but there occurred another matter on which the cause turned, and as the former is ground much beaten, and on which little can occur that is ,new, I shall confine myself to one point.

Samuel Bloom proved that he was assessor of the township in which the land lay, and in the years 1806-7 valued the tract in the name of John Hubley, as a settled tract, there having been some labor expended on it preparatory to a residence; that he gave notice to the person who had done the work, of the valuation and rate of tax, previously to the appeal; when he was informed by that person that he would not proceed with his improvements, as he understood there was an adverse title; that he informed the commissioners of this, and the tract of John Hubley was transferred from the duplicate of settled lands, to the unseated list. No improvement was made on it for sometime after; it was sold for taxes, due for 180G-7, and some succeeding years.

The defendants had a warrant, and survey from the late proprietaries, and also a treasurer’s deed, on a sale in 1S16, for the title of the plaintiffs, and had been in the actual possession of the tract for more than five years before the commencement ,of this suit.

The plaintiffs called a Mr. Youngman, who had been clerk of the commissioners of Northumberland county, from the fall of 1818, for some succeeding years; he proved a book produced from the commissioner’s office, to have been in the office while he was clerk, called “The Unseated Land Book,” in which, are the lists of unseated lands in the respective townships, and the amount of taxes charged on each tract; and he stated that the situation of the unseated lands in all the townships except Shamohen was not known, and “we could not get the assessors to assess the taxes, and the commissioners assessed them themselves;” he stated that there were no other books in the office except that one, which showed the tax on unseated lands during the time he was there; and he added, the practice was the same before he came into the office.

This case was argued as if this last sentence of Youngman was absolute verity, when, in truth, it was either not evidence at all, or if admissible, was scarcely entitled to the slightest consideration. I admit the witness to be credible, and even respectable; but when any man testifies to what he does not and cannot know, except on hearsay, his testimony is only hearsay; and when contradicted by the evidence of a man who relates his own knowledge, his own acts, and those of others which he saw, it can weigh but little, if it ought to weigh at all. Bloom, a man of good character, swears expressly, that he valued this tract in the yeays 1806 and 1807, and returned it to the commissioners, who inserted it in the list of unseated lands. No assessment list of those years, or any preceding, are found in the office of the commissioners, nor of many of the subsequent years. Mr. Yourigman came first into the office in 1818; what was done while he was there, he is competent to testify; what was done twelve years before he was in the office, he can only know from report; and report is not evidence, except in specified cases; and then we must know, from whom it was heard. Mr. Youngman may have heard from the commissioners in office what had beenUone in their time; this would go back two or at most three years; did he ever inquire of the commissioners or the clerk of the commissioners ten or twelve years back?

The plaintiff did not show that he had ever paid any tax for this land, nor did he offer to pay any into court.

The expression in Stewart v. Shoenfelt, in 13 Serg. & Rawle, 363, and in all the opinions in that case, that the land must be unseated, must be assessed, and the taxes unpaid, has been urged here as the solemn decision of the court, both in that and in subsequent cases, where the same words are used; and the distinction taken by the^ dissenting judge, who distinguished between an irregular assessment and a void assessment, has been urged as the law. I will premise that the assessors value the land. The commissioners always decide how much tax is to be levied during the current year, and apportion it on the real and personal property according to the valuation; the whole process may perhaps be called the assessment of the tax; and each ought to perform the part, appropriated to him or them by law, in order to make a regular assessment of a tax. But there is at least one case in which the commissioners may, nay are 'commanded to impose a four-fold tax on lands never valued by the assessor; and of the existence of which the assessor had no knowledge. See Act of the 20th of March, 1806, § 1.

It must also be remembered, that by the uniform decisions of the Supreme Court, on former acts, the sale was void for any and every failure of proof, that every step was precisely according to law; what was not proved to be strictly regular in every part was void: as respected a sale for taxes irregular and void were convertible terms. The object of the act was to change the whole law, as established by decision, on this subject.

If you could not produce the election of assessors or commissioners, or if their oath was not reduced to writing at the time, or having been written, was lost or stolen; or one out of a series of sixty, in any one of three daily papers was lost, the sale was void.

In the case of Stewart v. Shoenfelt, the assessment would not, beforq the act of 1815, have been suffered to go to the jury — it would have been no assessment — a void assessment. Yet there the sale was held valid; it was decided that a tax was assessed' and unpaid, and the act of the commissioners was the only part of the assessment which was regular. The present objection was made ■in that case; that a valuation by assessors of another township was said to be not irregular but void; it was said the assessment there being without authority was no assessment. Chief Justice Tilgh-man says, “this argument is not without' plausibility, but it is too subtle; it is against fact, for here the land was assessed by the assessor of Porter township, and it destroys the substance of the law.,# In another place he says, the object of the law was to give the owners of unseated lands a reasonable time to redeem the lands, and cut them off in case they did not embrace the opportunity within the given time. And the present Chief Justice, after speaking of former acts and decisions, says the act of 1815 was intended to provide a remedy which could not be eluded, by declaring once for all, that after the period of two years, the former owner should avail himself of no defect in the title where the tax was due, if it were assessed by any one having the color of authority: and again, if the land is unsold, and a tax is actually assessed under color of authority, nothing but proof of actual payment will affect the title of the purchaser.

I have said, that under the act of 1806, after all lands of which the Commissioners have knowledge, are valued by the assessors, and taxed by the-Commissioners, if, within the year, the Commissioners discover any tract not returned by the owner, they at once must assess a tax four times as great as would have been imposed if returned. Must a bidder go and examine whether a tract offered for sale is taxed under this law, or under the general law? and if so, must he not inquire as to every previous step by the Assessors and Commissioners; and as any irregularity, nay more, any defect of proof that all was strictly regular, made the whole proceeding void, are we not no w precisely where we were previous to 1815. There was before that law no medium; any defect of proof rendered all void: — it is idle then to pretend now to discriminate between irregular and void assessments. The object was to make the sale and deed confer a title, without proof of any one prerequisite, except that the land was unseated, and that a tax was charged by the Commissioners, regularly or irregularly; that this tax was unpaid, and the land sold and not redeemed within two years. Any other construction renders the act of 1815 a dead letter. If you could prove all that ingenuity could ask, the sale gave a good title before; and if you must prove all now, after two years, the act is useless- — if you need not prove all, what must be proved? The only answer is, what the act requires, and no more. If the taxes have been paid, or if the Owner shall redeem within two years* in the m'annér prescribed, he shall be entitled tó recover by due course of law, “but in no other case and on no other plea shall an action be sustained; and no alleged irregularity in the assessment, or in the process, or otherwise, shall bé construed or taken to affect the title of the purchaser; but the same shall be declared to be good and legal*

Judgment affirmed;


author: Huston J.

text:
    BRADFORD against DORNSEIF.
    Á plaintiff whose land was sold for taxes in 1806, is effectually barred, by the act óf 3d April, 1804, from recovering the land from the purchaser, who had been iit possession of it more thart five years after such sale and before suit brought.
    Appeal from the Circuit Court of Northumberland county; held by Chief 'Justice Gibson.
    This was an action of ejectment, in which Thomas Bradford was plaintiff, and Henry jDornseif and others were defendants; ih which all the points , arose which were discussed in the preceding case of Hubley v. K&yser, and one moré; — which was, whether the 3d Section of the act of 3d April, 1804, was not an effectual fear to the plaintiff’s recovery: — the defendant having been in pos-sessión of the land, under a sale for taxes made to him in Í806, for inore than five years after the sale and before this suit was brought. The Circuit Court decided that it was.

      J. Hepburn and Lashells for appellants;

      Packer and Greehough, contra.
   The opinion of the Court was delivered by

Huston J.

-This case depended on the construction of the clause in the 3d section of the act of 3d April, 1804, limiting the time within which actions can be brought for the recovery of lands sold for taxes. This law has received a construction from this Court in Parish v. Stevens, 3 Serg. & Rawle, 298. This decision gave iteffect in all cases. Then in 8 Serg. & Rawle, 357, Waln v. Shearman, its operation was confined to Cases in which the purchaser had taken possession, which led to passing the act of 29th March, 1824, which limited the time of bringing suits to two years from that time, whether the purchaser had or had not taken possession. The two former decisions had settled that an action could not be sustained after the purchaser had been five years in possession. The words are, “no action for the recovery of said lands shall lie, unless the same be brought within five years after the sale thereof for taxes as aforesaid.” Nothing can be more plain or positive; the law must be enforced by the Court or repealed by them; it cannot be mistaken nor misunderstood.

All statutes of limitation are made for the protection of those who, without such statute, had no protection. They are us.eless to those who are safe without them. They must protect those who could not otherwise be protected, or they are useless.

The possession of the defendants began in 1812. They are within the.letter and spirit of the act of assembly.

Judgment affirmed»


text:
    NAGLE against PATTERSON.

      A died intestate; his real estate was appraised and confirmed by the Orphans*' Court ■ to B, one of his sons; C became the surety of B in the recognizances to the other ' heirs, when an agreement was made that B should have one-half of the land, and should pay one-half of the recognizances. B and C took possession of the land, and had it divided between them by a line; C being liable to pay B one hundred dollars for the difference in value of the parts. C did not pay the one-half of the recognizances, nor the one hundred dollars to B. C’s interest was sold by the , sheriff, and B without having tendered a deed to C, or the purchaser, brought an ejectment for the land. Held: that he was entitled to recover a verdict, conditioned that it should be released upon the payment of the money within a specified time, which C was bound to pay.
    Appeal from the Circuit-Court of Mifflin county, held by Jus-, tice Huston.

    This was an action of ejectment in which Samuel Nagle was plaintiff, and John Patterson, who survived William C. Kelly, was defendant. Both parties claimed under the same title.
    The land in dispute belonged to Herman Wattman, who died intestate, leaving six children, of whom Samuel Nagle’s wife and Peter Rice’s wife were two. Upon the application of one of the heirs to the Orphans’ Court the land was valued, and subsequently taken at the valuation, by Samuel Nagle the plaintiff; who entered into recognizances with Peter Rice as his security, for the payment of the shares of the other heirs. Two of the four recognizances entered into, were paid by Samuel Nagle, These facts having-been established' by the plaintiff; the defendant gave in evidence, that at the time the land was taken at the valuation by Na-gle, an agreement was made between him and Rice, that he should take the land, and Rice should be his security in the recognizances; that each should have an equal interest in it, and that Rice should pay one half of the recognizances; — that Nagle and Rice both lived on the land, and appointed two men to divide it between them; who did divide it, and awarded, that in addition to the share Na-gle got, he should receive from Rice one,hundred dollars. Patterson and Kelly subsequently obtained a judgment against Rice and issued execution, and levied it upon “all the right, title and Interest of defendant, in a tract of land in Letch, township, containing,”'&c. which was the whole tract. It was afterwards sold on a venditioni exponas, and bought by Patterson and Kelly. It did not appear that Rice had paid any part of the recognizances, or of the one hundred dollars.
    The jury, by the direction of the court, found the following verdict:
    “We find for the plaintiff, he to file in the office of the prothon-otary of this court, a deed from himself to John Patterson, before he takes out execution; and further find that defendant be released from this verdict, on paying to the prothonotary of this court, the amount of the two remaining recognizances, or so much of them as he shall fail to produce before the prothonotary of this court, legal' evidence of having already been paid by Rice or himself; which money is to be applied to the discharge of said two recognizances, or said money, or so much thereof to go to Samuel Nagle as he shall show the prothonotary has been paid by him-.- And also the defendant to pay the prothonotary, at the same time, the sum of #100, with interest from the first day of January, 1817, unless he can show to the prothonotary, that the same or some part of it has been paid by Peter Rice or himself. That to enable the defendant to do these things, there be a stay of execution until the first day of July next, 1831, and upon payment of said moneys and costs of this suit, judgment in this suit to be released. ”
    The defendant moved for a new tidal which was refused and he appealed.

      Hale for appellant.
    The plaintiff could not recover without having tendered a deed to'the defendant and demanded his money before suit brought. Rice was in possession before the sheriff’s sale, and was entitled to the possession in the right of his wife, to the one-sixth at all events, and he could not have been turned out of possession by Nagle, without an offer on his part to perform his agreement to convey, &c. The verdict devolves a duty and power upon the prothon-otary which he cannot discharge,, but which should have been performed by the jury.
    Such a reference may be made by consent to the prothonotary,. but never by a verdict.

      Alexander for appellee.
    We deny that one cent was, ever paid by Rice or Patterson, The verdict is conditional no.t special. The verdict might have been general for the plaintiff; the conditions are for the benefit of' the defendant and of which he cannot complain. The whole legal title was in the plaintiff, and could only be divested by the defend-, ant’s having paid the recognizances, and made proof of that fact, Rice was to pay the heirs;.Nagle was not to pay them, and look tq Rice. No proof of the payment of a part was made, so as to, turn the burden of proof upon us.

      Planchard in, reply.
    When the deed is presented to the prothonotary, who is to judge of its sufficiency? When the evidence of payments is presented, who is to judge of their validity or genuineness? The whole matter of fact in the case tq be tried, was referred to the prothonotary, Nagle and Rice were partners in this transaction, although the land was confirmed to Nagle, yet Rice was equally interested; Na-, gle’s legal title was in trust as to the one half for Rice who was, equally bound for the amount p.f the recognizances.
   Judgment affirmed,