text:
    Wood versus Appal.
    1. A survey returned as bounded by a navigable river vests in the owner the right of soil to ordinary low-water mark of the stream, subject to the public right of passage, &c., between ordinary high and low water mark.
    2. The language of the return matters little, if the intention to make the stream the boundary sufficiently appear; both the description and diagram are taken together, in determining this.
    3. Where a vendor conveys by established land-marks, the subject of the grant will neither overrun nor fall short of them.
    4. The land-marks form the true boundary; the courses and distances serve merely to point to the place.
    5. Kelly v. Graham, 9 Watts 116, Wharton v. Garvin, 10 Casey 340, distinguished.
    6. Where the lines of adjacent surveys are both found run and actually marked on the ground, they overcome the calls for each other or even calls for a natural or other boundary.
    7. When a return of survey calls for a stream as its boundary or to run by, along, up or down it, the title will run to the stream, and the marking of trees on the bank or margin of the stream, to identify the lines run to the river, as well as the return of courses and distances measured along the margin necessarily to ascertain the quantity of land in the survey, will not restrain the title to the bank of margin only.
    8. Public surveys and private surveys and deeds are alike in this respect.
    9. In navigable streams the title runs to the ordinary low-water line; in unnavigable, to the middle of the stream.
    10. If the stream is not made the boundary, or if a line is actually run and marked for a survey apart from the stream, the rule changes to suit the facts of the case.
    11. The line of a survey was by an oblique course “to a post on the bank of the Ohio riverto ascertain the front of the riparian owner at the low-water line, the course from the post is to be run at right angles with that line, and not to. continue in the oblique direction by which it reached the post.
    12. Starting from the bank, a direct course to the stream or at right angles to it, will always afford the shortest and most certain boundary of river frontage.
    13. This rule applies only where no other intention is disclosed by the return of survey or the deed.

      November 11th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 116, to October and November Term 1869.
    This was an action of ejectment to July Term 1866, for one acre of ground in West Pittsburg, brought by Adam Appal, lessee of Elizabeth F. Denny, against James Wood. The defendant having died pending the suit, his widow and devisees were substituted as defendants.
    The land in controversy was part of a tract of 640 acres on the south bank of the Ohio river, known as “ Elliott’s Delight,” which had been patented to Daniel Elliott on the 27th of April 1785.
    The plaintiff gave in evidence the patent on which the tract was described as beginning “ at a corner hickory of Pittsburg Manor, standing on the bank of the Ohio river, thence by said Manor S. 14° W., &c. * * * N. 87° E., 60 perches, to a corner ironwood tree standing on the bank of said Ohio river, thence up the river 233 perches to the first-mentioned hickory, the place of beginning.” Both parties claimed under West Elliott who had acquired Daniel Elliott’s title. The plaintiff then gave in evidence, deed, West Elliott to William Price, dated September 12th 1804, for 15 acres, 157 perches, on the south side of the Ohio river, &c., part of the 640 acres, beginning at a stake on the bank of said river, and running by land of said West Elliott, S. 84° W. 3^ perches, kc. * * * N. 75° E. 12 perches, to a thorn; N. 63J° E., 7iV perches, to a stake on the bank of the aforesaid river; and thence up the same, S. 62° E., 4 perches, to the place of beginning.” Also deed for the last-mentioned tract from Price to James O’Hara, dated April 6th 1805. Also deed from West Elliott to James O’Hara, dated May 15th 1809, for 98 acres 100 perches, part of “ Elliott’s Delight,” beginning at a post on the bank of the Ohio river, and running thence by the manor line, S. 11J° W., 210 perches, to a white oak and post; thence, by lands of James O’Hara, &c. * * * E. 75o E., 12 perches, to a thorn tree; N. 63|° E., 7T% perches, to a post on the bank of the Ohio river, and thence up the river to the place of beginning.
    “ Provided always nevertheless, that if at any time hereafter, the said James O’Hara or his heirs or assigns, do or shall keep or use a ferry-house, tavern, store or public warehouse, for the storing of goods other than such as shall be raised or manufactured on the premises hereby granted, on that part of the above described and granted tract of land which is hereinafter described, to wit: ‘Beginning at the post on the Ohio river just above mentioned, and running thence by the manor line’ * * * ‘ to a thorn tree; thence N. 63J° E., 7/„ perches, to a post on the bank of the river, and thence up the river to the place of beginning, and shall continue to keep or use such ferry house, tavern, store or public warehouse, twenty-one days after notice in writing shall be given to him or them by the said Elliott or his heirs or assigns, to desist from keeping or using such ferry-house, tavern, store or public warehouse — then and in such case the last described and bounded part of the same tract of land shall revert to and become the estate in fee of the said West Elliott or his heirs or assigns.” This conveyance included the tract of 15 acres and 157 perches granted to Price and by him to O’Hara. — The 98 acre tract became vested in Elizabeth F. Denny under the will of James O’Hara, dated September 1819, and deeds dated March 30th 1842, to bar an entail created by the will: Also lease, Elizabeth E. Denny to plaintiff, dated March 31st 1865, for “ all that lot and premises situate in West Pittsburg, Allegheny county, Pennsylvania, bounded and described as follows, viz.: Beginning on the Washington Turnpike road, at its eastern intersection with the line of property belonging to Singer, Hartman & Co., thence along the said turnpike road westwardly seven hundred and sixteen feet and two and a half inches to line of Crawford’s property; thence north 65° 10' E., about 335 ft. to low-water mark on the Ohio river; thence, along the low-water .line, up the Ohio river, to the boundary line of Singer, Hartman & Co. ;■ thence along said line south 36° 30' W., about 266 ft. to the Washington Turnpike road, at the place of beginning. Being all that piece of ground belonging to the party of the first part, lying between the Washington Turnpike road and the Ohio river, in the borough of West Pittsburg, subject to all leases now in force with other tenants, and the party of the first part, on the above-described premises.” * * * “And it is furthermore understood between the parties to this agreement, that there shall be no deduction made from the aforementioned annual rent, on account of any pretended interference on the above-described premises, by parties now in possession of what was formerly Crawford’s property, but that the party of the first part will use all reasonable diligence to settle any such interference, so as to put the party of the second part into peaceable and quiet possession of the same.” * * *
    The defendants gave evidence tracing the title of the remainder of “ Elliott’s Delight” to Robert Crawford by numerous conveyances, the last being dated June 11th 1841, and conveyance of the whole by Crawford to James Wood, January 1st 1864.
    The plaintiff claimed that he was entitled to the land to the low-water line of the Ohio river, and that from the monuments on the bank as mentioned in the deed, his lines should be run perpendicularly or at right angles to the low-water line of the stream, so as to give him as much front at the low-water line as he had at the top of the bank. The defendants claimed that the plaintiff had no title to any land between the exact spot of his monuments and the low-water line, that is that his south or lower line was a line between his east and west corners on the top of the river bank, or if plaintiff’s line should go to the low-water line, it should be by extending his western line according to the oblique course by which it reached the monument or at the top of the banks, that is North 63J' E. through “ the post on the bank of the river.” This, as was alleged by the plaintiff, and as appeared to be sustained by the evidence, would leave him little or no front at the low-water line. The annexed diagram will explain the claim of each. In the lease to the plaintiff from Mrs. Denny, the west line was stated to be from a point in the east line of “ Crawford’s property” (the west line of Mrs. Denny’s) “N. 65° 10' E., to low-water mark in the Ohio river. The perpendicular line claimed by the plaintiff from “the post on the bank of the river,” would be S. 28° W., and between that line and the line as stated in' plaintiff’s lease there would be a triangle whose apex would be “ the post,” &c. which would be east of what was claimed as Mrs. Denny’s west line. The plaintiff alleged that so stating the line was a mistake of description by the scrivener who drew the lease, and that it is controlled by the general description in the lease, demising “all that piece of ground belonging to the party of the second part lying between the Washington Turnpike road and the Ohio river in West Pittsburg.” (See accompanying diagram.)
    The plaintiffs gave evidence by surveyors and others showing that the land in dispute was included within the lines of his deeds; also the exercise of acts of ownership over it by his predecessors.
    The defendants gave evidence to prove surveys and the manner in which the land had been used for many years, as bearing both on the question of title and the Statute of Limitations. They also gave evidence to show that if the theory of the plaintiff was correct, the shore below him was such that West Elliott could not have any landing at all.
    The plaintiff’s 1st and 2d points were :—
    “ 1. The deed in evidence from West Elliott and wife to James O’Hara conveyed to the latter title down to the low-water mark of the Ohio river.
    “ 2. In ascertaining the extent of the river front of the plaintiffs’ lessor, Elizabeth F. Denny, at low-water mark, the line between her property and defendant’s must be run perpendicular, or at right angles to the base line between her two corners called for in the deed of Elliott to O’Hara, and designated by monuments on the bank, and the plaintiff’s lessor, Mrs. Denny, is entitled under her deed to all between said corners, said right angled line, low-water mark of the Ohio river and the manor line.”
    The court affirmed these points.

      The defendants submitted these points: — ■
    “7. If the land conveyed by West Elliott to Price and O’Hara was intended to be, and is bounded on the north side thereof by the Ohio river, then the lines on the east and west sides must extend and go to the said river by the course of the last lines next said river, and no new or additional lines, with different courses, can be introduced as boundaries on the east and west sides of said land.
    “ 10. The true meaning of the deed of West Elliott to O’Hara as construed by the prohibitory clause and calls therein contained, is, that the river front or landing, now in dispute, was not intended to be conveyed by said deed, therefore, the prohibition of a ferry was not necessary, but a ferry-house, or tavern, was prohibited, as they could be erected outside of the land in dispute.

      “ 11. The lease by Mrs. Denny to Adam Appal being bounded on the west side thereof by the dividing line between Mrs. Denny and defendants, viz.: The last line next the river extended north 65° 10' east, 335 feet to low-water mark. The ground west of said line is not leased to plaintiff, and the plaintiff cannot recover any ground west of said line.”
    The court answered all the defendants’ points as follows:—
    “ The defendants’ points, so far as they have any bearing on the ease, are sufficiently answered in the general charge; and so far as they are not answered, they are declined.”
    The court (Hampton, P. J.), after stating the titles of the parties respectively, &c., charged: * * *

      “ The plaintiffs’ counsel contend that the title given in evidence by them extends to low-water mark, and consequently covers the land in dispute.
    “ The defendants deny the allegation and contend:—

      “ 1st. That their title embraces the disputed ground.

      “ 2d. That even if the lines of the plaintiffs’ survey are to run to the river, they must be extended thereto by the same courses at which they stopped on the bank, which would leave out of the survey a large portion of the ground in controversy; and

      “ 3d. That under the Statute of Limitations they have acquired title to the whole of this piece of land.
    “ These different positions by the learned counsel raise three principal questions — two of law and one of fact. The former are for the decision of the court — the latter for the jury.
    “1st. The first question of law is, does the plaintiffs’ title extend to the water’s edge, or low-water mark, or is it limited to the mark called for on the top of th'é' bluff bank where the distances run out ?

      “2. If the lines are to be extended to the water’s edge, are they to be so extended by their last courses or by right angles from low-water mark to the corners on the top of the bank ?

      “Let us now examine the first question, viz.: Whether or not the plaintiffs’ title carries him to the water’s edge ?
    “ The patent under which both parties claim, dated April 20th 1785, calls for 640 acres of land, situate on Saw Mill run, on the south side of the Ohio river, in the county of Washington, bounded as follows: ‘ Beginning at a corner hickory of Pittsburg Manor, standing on the bank of said Ohio river; thence by said Manor line’ a certain distance, and thence by various courses and distances ‘ to a corner ironwood tree, standing on the bank of said Ohio river ; thence up the same 233 perches to the first-mentioned hickory and place of beginning.’ When partition of this tract of land was made in the Orphans’ Court, among the heirs of Daniel Elliott, deceased, that portion adjoining the Manor line and embracing the disputed land, as now claimed by the plaintiffs, was awarded to West Elliott, one of his sons. West Elliott, by his deed heretofore referred to, conveyed 15 acres and 175 perches of this land to William Price, described as lying on the south side of the Ohio river, and running by land of said West Elliott, by various courses and distances, “to a stake on the bank of the aforesaid river, and thence up the same south 62° east, 4 perches to the place of beginning.’ Price afterwards conveyed the same land to James O’Hara. West Elliott, by his deed heretofore referred to, conveyed 98 acres, part of the aforesaid tract of land taken at the appraisement, and containing, as it is said, the 15 acres last described: this tract of land is bounded and described as follows, viz.: Beginning at a post on the bank of the Ohio river and running thence by the ‘Manor line’ 210 perches, and thence.by sundry courses and distances ’to a post on the bank of the Ohio river, and thence up the run to the place of beginning.’’

    “ Such are the boundaries described in the plaintiffs’ chain of title, and it only remains to inquire whether the law carries it to the river’s edge, or whether it must be limited to the hickory and post called for in the deeds ?
    “ It may be worthy of observation just here, that, as both parties claim under the patent to Daniel Elliott, and as the boundaries therein described are in substance the same as those in all the deeds from West Elliott down, if the patent did not go to the river, the title to the whole river front must still be in the Commonwealth and liable to be patented any day by any one who might choose to apply for the same. A title or claim of this kind I apprehend would be as stoutly resisted by the present defendant as by the plaintiffs. The principle has been too long and too well settled in this state, by numerous decisions, to admit of doubt or question, that whenever natural boundaries are called for in a survey, more especially navigable rivers, they control the distances and artificial marks on the ground, and this rule has been adhered to with such tenacity, that nothing but the clearest and most satisfactory intimation of the parties to the contrary will prevent its operation. This rule of law is based not only on the general practice, experience and convenience of men, but on the soundest principles of reason. In the early history of this country one of the strong inducements to purchase lands adjoining our rivers, or large streams of water, was the facility they afforded of taking their produce, lumber, minerals, &c., to market, as well as to enjoy water-power for their mills. Prior to the construction of turnpikes, railroads or canals, the pack horse and the wagon roads, the latter a great portion of the year almost impassable — were the only other modes of conveyance the early settlers had — and hence the importance and convenience of having their farms extend to the river, thus affording free and unobstructed access to, and use of these great natural highways. Another reason for the rule was that any artificial marks on the banks of these rivers were liable to be swept away or entirely obliterated by the frequent floods to which they were subject. And still an additional reason might be stated, that by these floods, the banks on which these marks were made were liable to be and frequently were actually washed away, thus leaving no trace of the lines on the ground. In many instances also, extensive deposits of earth washed from other places were made, extending out into the river for many feet or rods, which under any other rule of law would lead to great inconvenience, hardship and litigation. But under the rule above stated, he who owns the land adjoining, goes t,o the low-water line, wherever that may be, subject to the use by the public of navigating the river between low and high water marks, and the right of the public to construct wharves or public landings thereon, whether he lose or gain by the action of the water, in washing away a portion of his ground or adding thereto by forming ‘flats,’ as those deposits are called. Without extending our remarks further on this point [I am clearly of opinion that the boundaries called for in the plaintiffs’ deeds carry the title to low-water mark, subject only to the right of the public to use the space between high and low water lines for the purpose of navigation.] Only a very few of the numerous cases in this and other states will be referred to in support of this ruling. * * * These authorities, if there were no others, are abundantly sufficient to warrant us in ruling- that the plaintiffs’ title here extends to low-water mark, and therefore we instruct you as a matter of law, that so far as the question is concerned, the plaintiff is entitled to your verdict for all the land in dispute embraced by these lines, so extended to the water’s edge or low-water mark.
    2d. “ The next question to be determined is, how are the plaintiffs’ lines to be extended; by the last course, when they reach the top of the bank, or at right angles with the low-water line to the point where the lines stopped on the bank, so as to give the plaintiff the same front at low-water mark that he has on the bank ?

      “ The manor line extended to the river, would be nearly at right angles with lines of low water at that point, so that the question here arises chiefly on the extension of the western line, which, if produced on the same course as it was at the ‘ post’ on the bank, would intersect the low-water line only a few feet from the manor line — in other words, it would leave to the plaintiff only a few feet on his water line; whereas, he has some 8 or 9 perches on his line between the post and hickory on the bank; this would cut him off almost entirely from any river front at all. A rule of this kind would render nugatory nearly all the decisions relative to surveys bounding on our navigable rivers.; because it is very rare indeed, that the lines, on both sides of the survey, approach the river at right angles to the edge of the water; a slight change, therefore, in the course of either line, might cause it to intersect the other before it reached low-water mark; and a slight change in the course of the other line in an opposite direction, might give the whole river front of two tracts, to one owning the intermediate one. This course of proceeding would work great injustice to riparian owners, and produce endless strife and litigation. [The true legal as well as equitable rule, then, undoubtedly is to give each riparian owner the same front at low-water mark that he has on the shore or bank at the termination of his lines.
    , “ This is done by starting at low water line and running at right angles therewith to the last corner on the hank by the approaching lines, or, which is the same thing, to its intersection therewith. By this simple rule, all difficulty is avoided, and every owner of land along the shores of our rivers, has his equal share or proportion of the beach, or landing, and water privileges, down to low-water mark.] I am not aware that this question, in its present aspect, has ever been brought before our own Supreme Court, but it has been expressly ruled in some of the other states.
    “ In Knight v. Wilder, 2 Cushing 199 (Mass.), it was held that in running out the side lines of a riparian proprietor, on a river not navigable, they are to be extended from their respective termini on the shore at right angles with the course of the river, to the centre of the stream: unless otherwise established by the terms' of the grant or conveyance under which he claims.
    In several of the New England States, the rule of the common law of England has been adopted, giving to the riparian owner the right of soil usque ad filum aquae. But the rule is different in Pennsylvania: here, the riparian owner goes only to low-water mark, and that right is subject to the right of the public for purposes of navigation between high and low water mark.
    “ These authorities, with others that might be cited, show clearly that the rule we have suggested is the true one, and that if the plaintiff’s deeds, thus construed, embrace the land in dispute, then so far as this question is concerned, your verdict should be for him.” * * *
    The remainder of the charge related to the Statute of Limitations.
    The verdict was for the plaintiff.
    The defendants removed the case to the Supreme Court and assigned for error the answers to the points and the portions of the charge included in brackets.

      J. I. Kuhn and K. Woods, for plaintiffs in error. —
    If there were nothing but the description in tjhe deed it might carry the title to the low-water line, but there were other’things, e. g. .the proviso relating to the ferry-house, &e., which indicated that the low-water line was not intended. There are cases where lines run near or along the river in which the line and not the river are taken to be the boundary: Wharton v. Garvin, 10 Casey 340; Kelly v. Graham, 9 Watts 116; Brolaskey v. McClain, 11 P. F. Smith 146. The court was wrong in ruling that the lines should run from the marks in the bank at right angles with the low-water line. When natural boundaries are called for the lines will stop when the boundary is reached and will be extended to reach it: Cox v. Couch, 8 Barr 147; Wharton v. Garvin, Kelly v. Graham, Brolaskey v. McClain, supra. The rule of the court would be proper only when the course of the stream is straight and the line on the bank parallel with it. If the shore curved outward there would be gores; if intvard the lines would overlap. The constant change of the shores would prevent the preservation to each owner of the same river front. The simplest rule is to preserve the direction of the side lines; each owner to take his chance of gain or loss. The conveyance of West Elliott manifests that he intended to retain for himself a ferry and landing. By the application of Judge Plampton’s rule the ferry of the defendants and their predecessors would be destroyed or transferred to the plaintiff. If the rectangular rule is to be established it should be with reference to the actual low-water line as it existed when the deed was made, not the artificial line established by commissioners under the Act of 1858. In Pennsylvania the limit of a riparian owner’s title is to the low-water line, the marks on the hank are used to fix the direction by which the line shall reach the low-water mark. Such has been the understanding of the people and the decisions of the courts of this state.
    The lease of the plaintiff which is very precise in its description would exclude a triangle which is included in the plaintiff’s abstract of title, all of which is recovered by the verdict. The precise description controls the general description, “all that piece of ground belonging” to her, &c., and the tenant cannot recover outside of the bounds precisely limited. The precise description is an admission that her title extended no further, and then in point of fact she did lease all the ground then belonging to her.

      M. W. Acheson and R. McKnight, for defendant in error.—
    Where a stream is used in a grant as a boundary or monument, the boundary is the centre of it, modified in Pennsylvania as to navigable rivers, to low-water mark: 3 Kent’s Com. 427-432; Naglee v. Ingersoll, 7 Barr 201; Sergts. Land Law 193; Barclay v. Ingham, 12 Casey 194; Cooper v. Smith, 9 S. & R. 26; Commonwealth v. Fisher, 1 Penna. R. 462; Bear v. Russell, 2 Yeates 130; Carson v. Blazer, 2 Binney 475; Shrunk v. Sch. Nav. Co., 14 S. & R. 71; Freytag v. Powell, 1 Whart. 536; Angell on Water Courses, sect. 15, 25-36; Luce v. Carley, 24 Wendell 451, 2 Smith’s Lead. C. 235, note 244; Blanchard v. Porter, 11 Ohio 138; Lamb v. Ricketts, Id. 311; Jones v. Janney, 8 W. & S. 443. The reservation as to the ferry-house would have been unnecessary if Elliott had in fact retained the title for the whole front. His object was to keep away a ferry-house, &e., to compete with one he might erect on his own land. The running of the lines from the marks on the bank to the river is not to be made as running the lines of a farm where the points are fixed, for riparian rights pass as incidents to the land on the bank. Riparian owners have the right of property opposite their land: 3 Kent’s Com. 411; Ex parte Jennings, 20 Johns. 90. In order to get the extent of the riparian owner’s line in the bed of the stream, lines are to be drawn from the points on the bank where the shore-lines terminate at right angles with bank to the thread of the river: Carter v. Murcot, 4 Burrows 2162. The riparian owner has a portion of the bed of the stream in proportion to his line on the margin, lying in front of his upland: Angell on Water Courses, sect. 11; Price on Lim. 63; Ball v. Slack, 2 Whart. 508; Jones v. Janney, Naglee v. Ingersoll, supra; Knight v. Wilder, 2 Cush. 199; Rust v. Boston Mill Co., 6 Pick. 158; Deerfield v. Arms, 17 Id. 41; Sparhawk v. Bullard, 1 Metc. 106; Flanagan v. Philadelphia, 6 Wright 219; Barton v. Bouvier, 1 Phila. R. 523. Alluvion belongs to the owner of the land which it adjoins: Walker’s Am. Law 319; 2 Washburn on Real Prop. 443-447 and notes; Morgan v. Scott, 2 Casey 51; Commonwealth v. Shaw, 14 S. & R. 12; Lamb v. Ricketts, supra. Land formed by alluvion is to be divided amongst the several riparian proprietors by measuring the ancient line and dividing the new line in the proportions each owned of the old line: Angell on Water-Courses, sect. 55, 56 and notes, Deerfield v. Arms, supra. This law of alluvion will, if applied to this case, establish Mrs. Denny’s title to the whole of the front claimed by her, because accretions might gradually be enlarged both by natural and artificial causes until she would be shut out from the entire river front.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

Ever since the case of Carson v. Blaser, 2 Binney 475, decided in 1810, it has been held in many cases that a survey, returned as bounded by a large navigable river, vests in the owner the right of soil to ordinary low-water mark of the stream, subject to the public right of passage for navigation, fishing, &c., in the stream, between ordinary high and ordinary low water mark. Variety in the language of the return matters little, so that the intention to make the stream a boundary appears sufficiently in the description and diagram. In determining this both are taken together. The variety of expression in the decided cases is very great. In Carson v. Blaser, supra, the description in the patent (taken, of course, from the return of survey) was “ beginning at a birch by the river;” thence running outward and returning “to a red-oak by the same river, and thence by the same, the several courses thereof, to the beginning.”

In Hart v. Hill, 1 Wharton 124, the counsel of defendant contended (p. 131) that the deeds of the plaintiff were bounded by “ stakes and stones on the banks of the river,” but Kennedy, J., interposed, saying: “ This is universal in the country, surveyors never go into the water for the purpose.” And Huston, J., said: “ It has often been decided that the owners of land hold to low-water mark, notwithstanding such boundaries.” They were both eminent as land lawyers.

Klingensmith v. Ground, 5 Watts 458, decided in 1836, was the case of a private deed describing the land as beginning at a sugar tree on the bank of the river and running up the same north 59 degrees south 59 perches to a stump near the creek, thence up the creek north 14J perches to a stone. The court below thought that the word “near” indicated an intention not to make the creek a boundary, but this court held the creek to be the boundary.

In Ball v. Stark, decided in 1837, 2 Wharton 508, the description in the proprietary’s grant began at the “ mouth of Gunner’s creek,” thence running up the several courses of the Delaware and returning “ to a corner white-oak standing near unto the above said Gunner’s creek, from thence following down the several watercourses thereof to the place of beginning.” It was held this description led into the mouth of Gunner’s creek at its junction with the Delaware at low water, notwithstanding at high tide running a mile up Gunner’s creek the plaintiff would have been cut off from the creek at its mouth.

The patent in Coovert v. O’Connor, 8 Watts 470, described the land next to Mahoning creek, a branch of the Big Beaver, thus— “ to a birch on Big Beaver, thence down the said creek the following courses: south 76 degrees east 75 perches, north 83 degrees east 40 perches, south 62 degrees east 125 perches, north 55 degrees east 23 perches, to a post.” In this case the hirch tree stood on the hank of the stream, and the survey ran from it by courses and distances actually run along the bank, yet it was held that the description “ down the said creek” carried the title ad tfilum aquce.

The principle which thus abandons the courses and distances for the stream itself is thus stated by Gibson, C. J., in Cox v. Couch, 8 Barr 154: — “ By reason of imperfection of instruments as well as inequalities of surface, and carelessness of assistants, extreme accuracy is not to be attained by the compass and chain ; while, on the other hand, calls for natural objects, or what is much the same, known and established lines of contiguous tracts, admit of perfect certainty. Where a vendor, therefore, conveys, by established land-marks, the subject of the grant will neither overrun nor fall short of them. They form the true boundary, and the courses and distances serve but to point to the place.”

In the analogous case of Paul v. Carver, 2 Casey 223, the boundary was described as “ thence southeasterly along the northerly side of the said Tidmarsh street,” and it was held to carry the title to the centre of the street. The same was decided in Cox v. Freedly, 9 Casey 124, upon a deed calling for stakes on Egypt and Race streets, “ thence along the north-east side of Egypt,”. and “ along the south-east side of Race,” although in the same deed another boundary on an alley called for a stake in the middle of the alley, “thence along the middle of said alley.” Woodward, J., there remarks that in surveys bounded on streams and streets the marks must necessarily stand on the margin.

There are cases supposed to be exceptions to the rule I have stated, but they are not so. The principal of these are Kelly v. Graham, 9 Watts 116, and Wharton v. Garvin, 10 Casey 340. The report of the former omits the return of survey, but Justice Kennedy says in his opinion: — “ The survey, as returned here by the deputy surveyor, as also all the other evidence on the subject, shows most unequivocally that the river is not made a boundary in it, and indeed that it could not have been so intended. The draft of the survey returned is made out according to the courses and distances actually run and marked upon the ground, and not made to call for the river on any side oP> point whatever. At some distance from the survey, however, the Allegheny river is laid down upon a straight line without any regard to its meanders, as if it were intended by the artist merely to show that the land included within the survey lay near to the river.” The case is'therefore not an exception to the rule, but is distinguished from it by the fact that the river was not made or intended to be, a boundary. The real difficulty in that case was that the patent by mistake called for the river, but the court corrected the mistake by a reference to the survey itself, which negatived the call.

Wharton v. Garvin stands in exactly the same attitude. The north and south lines found upon the ground did not reach the river by 40 perches on the north and 19 perches on the south. The diagram exhibited no protraction to the river, and the closing line was represented as a straight line of 238 perches long, leaving a large vacancy between it and the river. The return did not call for the river as a boundary, but it was represented at some distance off with the words written within representation, “ up Allegheny.” The opinion was written by Justice Thompson, the present Chief Justice, who was careful to distinguish the case upon its facts. He remarked that generally a survey is to be carried to its calls unless there are actual lines on the ground excluding them; that a call to stand as a boundary must be indicated to he such with sufficient certainty to show that it was so intended. The representation of an object at a distance from a closing line without any words indicative of an intent to make it a boundary would hardly be sufficient to constitute it such. The line plotted at a distance would have little weight, he remarked, if the river had been made the call, and as it is not so made in terms and appears to be excluded by the draft, it is a circumstance of controlling influence, as held in Kelly v. Graham, supra. Thus it was the intent of the surveyor (appearing clearly in the return of survey) to bound the survey on the 238 perch line, and not on the river, which controlled the decision. Instead of impugning the general doctrine the case supports it, and the judge remarked: “We are predisposed to presume the existence of an intent to bound surveys on navigable waters by the stream, not only on account of the supposed advantage arising from such location, but because it is in accordance with practice.”

Some inference has probably been drawn from that case, as an exception, from the fact that the closing line (238 perches) did not appear to be marked on the ground. But this had no real influence on the decision, for the river being out of the question as a boundary not called for at all, the closing line must necessarily be run from the corners standing 40 and 19 perches from the river, on the principle stated by Justice Thompson in Hunt v. McFarland, 2 Wright 69.

The governing principle of the rule before stated is found also in Walker v. Smith, 2 Barr 43, and Thomas v. Mowrer, 3 Harris 139, qualifying the generality of the opinion in Martz v. Hartley, 4 Watts 262, and holding that where the lines of adjacent surveys are both found run and actually marked on the ground, they overcome the call for each other or even calls for a natural or other boundary. An old case strongly illustrating the principle is Mageehan v. Adams, 2 Binney 109, where the survey and patent called for a black-oak on the state line, thence by the same, 130 perches to a post; yet evidence was received to show that the black-oak and line actually stood 30 perches from the line of the state.

The result of the cases is, that when a return of survey calls for a stream as its boundary, or to run by, along, up or down it; the title will run to the stream, and the marking of trees on the bank or margin of the stream to identify the lines run to the river, as well as the return, of courses and distances measured along the margin, necessarily to ascertain the quantity of land in the survey, will not restrain the title to the bank or margin only. As was said in Klingensmith v. Ground, supra, a corner tree is not always to be had where it is wanted, and then the next most convenient must be taken; or as in Ball v. Stark, supra, a surveyor cannot run a curved line with compass; but if a creek is returned as the line there can be no mistake as to it, and the courses and distances along it are to be disregarded. See also Cox v. Freedley, 9 Casey 130. It is held also that public and private surveys are alike in this respect, and a private deed is judged of by the same rule: Cox v. Couch, 8 Barr 154; Caldwell v. Holler, 4 Wright 168. In navigable streams the title runs to ordinary low-water line, and in unnavigable to the middle of the stream. But if the stream is not made the boundary, or if a line is actually run and marked for the survey apart from the stream, the rule changes to suit the facts of the case.

Then to come to the case before us: Daniel Elliott’s patent described the land as beginning at a corner hickory of Pittsburg Manor standing on the bank of the Ohio river; thence by said Manor line outward, then returning “ to a corner ironwood tree standing on the bank of said Ohio river, thence up the same 233 perches to the first-mentioned hickory and place of beginning.”

West Elliott’s deeds to Wm. Price and to James O’Hara, are in language precisely similar as to the river, excepting that a less quantity of land is embraced, with less river front. There can be no doubt that both the patent and the deeds extend the title to ordinary low-water mark of the river. The proviso in the deeds to Price and O’Hara, we think, does not control the description in the deeds.

Another question more difficult, — and new in Pennsylvania, so far as we can discover, — is as to what river frontage these deeds convey. The upper or Manor line runs to the river at right angles nearly, but the lower or Crawford line runs to the river very obliquely, meeting the Manor line by compass course on the shore, at about low-water mark. »

The court below held that the lines running to the bank or margin of the river, instead of continuing in the same course by the compass, must run from their terminating points on the bank directly to the stream, at right angles to it; or in other words, each line on leaving the bank must run over the shore by the most direct and shortest route. The plaintiff in error argues that the lines should run by the same compass course to the stream, whether they cross each other before reaching the stream or diverge widely apart.

We have no precedents in this state to guide us, while foreign cases are not governed by the same principles which prevail here. We must decide this case upon'what we deem to be common understanding and usage, and the reason and convenience of the thing. As we have already seen, the practice of surveyors, in coming to a stream, is to stop upon its bank or margin, at the nearest convenient approach to the stream, and there to mark the corner indicating where the line strikes the stream. This is necessary to preserve the monuments of survey, as well as for convenience in making it. When the corner is set upon the high bank the stream may be one or many perches off, according to the character of the stream or its stage of water. In March or April a surveyor would probably find this river bank full, while in August or September he would find the water many perches away from the bank. The Allegheny and Ohio rivers at a low stage in many places fill less than one-half of their breadth between the banks. It is obvious, therefore, when the surveyor, running in toward the river, stops on its bank and makes his corner, he means, in the absence of other evidence found in his return, to indicate his nearest convenient approach to the stream, and thus to mark where his line strikes the stream, and the river front it gives to the owner of the survey. If he intended to continue his line by the compass course to the water’s edge, we would expect to find something in his return to indicate this intent. The very fact that he. runs a line along the stream from the end of one line to the end of the other line, where it reaches the bank, is the evidence that he does not intend to continue his line to an apex on the shore, otherwise he would have returned no such intermediate line. Thus it is hardly supposable that he intended the oblique line to run to an apex on the shore with the Manor line, and to cut off the owner of the survey from all the river front in low water, and dispensing also with the intermediate line.

The serpentine course of the stream, or its relative distances from the bank at different points, can make no serious difference as to the line of approach to the water’s edge. Starting from the bank, a direct course to the stream, or at right angles to the stream, must always afford the shortest and m’ost certain boundary of river frontage. Of course the rule as now laid down applies only to a case where no other intention is disclosed by the return of survey, or the deed.

In relation to the lease to Appal, it is sufficient to say that we think that the recital of the land intended to be leased, and the provision that no reduction in the rent should be made for interference by parties in possession of the Crawford or Wood property, show an intention to include all the land to the river, and the course of the oblique line over the shore is evidently an error of the scrivener, which is corrected by the other'parts of the lease.

Judgment affirmed.


source: Caselaw Access Project

author: A&new, J. —

license: Public Domain

text:
    McClure’s Estate; Elizabeth Township’s Appeal.
    1. A school district resolved to pay bounties to “ volunteers.” Associations were formed in the township under the 23d section of the Act of Congress of March 3d 1865 and the provost-marshal’s regulations, and they put in recruits. The treasurer of the school district’s bounty fund paid bounty to these recruits. Held, that the payment was properly made.
    2. The recruits under the Act of Congress, &c., and the resolution of the school directors were “ volunteers.”
    3. The fact that the men were put in for citizens Who were drafted did not detract from their standing as “ volunteers.”

    4. The only operation of the Act of Congress was that when a member of the association should be drawn, the general credit would then enure to the particular benefit of the association, thus securing its drafted member from service as the reward for procuring the volunteer.
    November 11th and 12th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams. JJ.
    Appeal from the Orphans’ Court of Allegheny, county. No. 121, to October and November Term 1869.
    The appeal in this case was by Elizabeth Township, Allegheny county, from the decree of distribution of the estate of Alexander McClure, deceased, in the hands of his executors. The facts in the case, as appeared by the report of Thomas MacConnell, Esq., the auditor, are as follows :—
    On the 18th of February, 1865, the Board of school directors of the district composed of Elizabeth township, resolved “ to borrow a sum of money, not exceeding thirty thousand dollars, for the purpose of paying volunteers to fill the quota of Elizabeth township, under the late call of the President of the United States, for which the board will issue certificates of indebtedness payable as soon as the Acts of Assembly will permit, and pledging the faith of said township for their payment,” &c. They appointed Alexander McClure, the decedent, treasurer of the bounty funds, and he was directed to pay $300 to each “volunteer” credited to the township. A large portion of the m'oney was raised by loan and passed into his hands. Recruits could not be procured for $300 each, and to make up the difference, a large amount of money was contributed by individuals in the township ; this also was paid to McClure, as treasurer of that fund. There were thirty-five men put in, to whom Mr. McClure paid $300 each of the funds raised by the loan of the school directors, making in all $10,500.
    The 23d section of the Act of Congress of March 3d 1865, provided:—
    “ That any person or persons, enrolled in any sub-district, may, after notice of a draft, and before the same shall have taken place, cause to be mustered into the service of the United States, such number of recruits, not subject to draft, as they may deem expedient, which recruits shall stand to the credit of the persons thus causing them to be mustered in, and shall be taken as substitutes for such persons, or so many of them as may be drafted, to the extent of the number of such recruits, and in the order designated by the principals at the time such recruits are thus as aforesaid mustered in.”
    The regulations of the provost marshal general provided:—
    “ 1. In order that credit may be given to the sub-district for the recruits furnished, at the time they are mustered in, and the draft made only for the deficiency remaining after crediting these and other recruits, it is necessary that all the members of the association shall belong to the same sub-district.
    “ 2. Previous to the commencement of the draft, the association will furnish the provost-marshal of the district a list of the names of its members, designating their order, and numbering them accordingly, which list will not be altered or increased after the drawing shall have commenced.
    “ A list of the recruits furnished by such association shall be kept by the provost-marshal, to be numbered in the order in which they are enlisted.
    “ When the draft has been made, the recruit standing at the head of the list will be taken as the substitute of the first man drafted, who belongs to the association; the recruit standing second on the list will be taken as the substitute of the second man drafted, and so on until the list of recruits is exhausted by drafted men who belong to the association, or until all the members of the association who have been drafted are exempted, in case a sufficient number of recruits has been furnished by the association to exempt that number.
    “ Where the number of recruits furnished by an association exceeds the number of men drafted from such association, the excess, though credited to the sub-district, will create no claim for the exemption of any person whomsoever.
    “ Members of associations, who secure exemption under the 23d section aforesaid, are exempt from that draft, but are liable to be drafted on future calls.
    “ Recruits furnished by associations, and taken as substitutes for drafted men who are members of [she association, will be credited, at the time of muster in, to the sub-district to which the association belongs.”
    Under the act and the regulations, three associations were formed in Elizabeth township. These associations caused five men to be mustered to the credit of Elizabeth township, who were included in the thirty-five before spoken of The school board objected to the payment of $300 out of their funds to each of these five men as being unauthorized, and they claimed to recover the amount so paid, $1500, from the deeedant’s estate; on the ground that the resolution of the board contemplated payments to “ volunteers,” not to substitutes, and that the men furnished through the associations were substitutes.
    The auditor took a large amount of testimony and made an exhaustive report, both as to the facts and the law. Amongst other things he reported:—
    “ It is proved that men put into the service by such associations as those in question here, were not treated by the recruiting officers, either on the muster-in rolls or in any other respect, as substitutes, but were treated in every respect as ordinary recruits. But the Act of Congress under which these associations were formed, declares expressly that the recruits mustered into the service by the associations, shall stand to the credit of the persons causing them to be mustered in, and shall be taken as substitutes for such persons, or so many of them as may be drafted, to the extent of the number of such recruits, and in the order designated by the principals at the time such recruits were mustered in.” * * *

      “ In this case, Elizabeth township offered the bounty on the 18th of February 1865, and the five men in question were not put in until some time afterwards. There was then an offer on one side to pay, and its acceptance on the other, by the putting in of the substitutes; and this I think amounted to a contract to pay, which could be enforced against the township, and if it could, Alexander McClure was right in paying the money upon it.
    “ But it is said that the money which the school directors agreed to raise was expressly to pay bounties to volunteers. It is true that it is the word “ volunteers” that is used in the resolution, but it is equally true that it is the word “ volunteers” that is used in the first section of the Act of 25th of August 1864, authorizing the school directors to raise money to pay bounties, and that the very money, which by the first section they are authorized to raise specifically to pay bounties to volunteers, they are authorized by the 3d section to pay for bounties to persons putting in substitutes, or to substitutes themselves, when the principals have not paid them. The word volunteers in the Act of Assembly covers as well those who volunteered to pay money to others to go into the service, as 'those who volunteered to go in themselves, and I cannot see why it should have a narrower signification in the resolution of these school directors. The great object of the school directors and of the people whom they represented,was to get the quota filled so as to escape the draft, and it made little difference to them whether it was filled by persons volunteering to go into the service themselves, or to pay substitutes for going in. The one was as effective for filling the quota and avoiding the draft as the other.” * ■ *
    “In short, the auditor thinks that Mr. McClure paid the bounty money for these five-men properly, and that the claim of the school directors to recover it from his estate cannot be maintained.”
    Exceptions to the Auditor’s report were taken by the school district; they were overruled by the court and the report confirmed. The township appealed, and in several exceptions assigned the confirmation of the report for error.

      O. 0. Taylor (with whom were B. cf 8. Wood), for appellants,
    cited Mifflin Township v. Learn, 3 P. F. Smith 180.

      T. JEwing (with whom was J. JEdmundson), for appellees.
   The opinion of the court was delivered, November 15th 1869, by

A&new, J. —

The result at which the learned auditor arrived was .correct, though he yielded too much in admitting that the five men put in by the three associations under the provisions of the Act of Congress of March 3d 1865, could be looked upon in no other .light than as substitutes. They were volunteers when enlisted and when the bounties were paid. They became substitutes only in the event that members of the association were drafted. The Act of Congress expressly provided that they should be put in before the draft, and the regulations of the provost marshal general, made under the law, provided that they should be credited to the sub-district to ■ which the associations belong; and prescribed the order in which they should become substitutes for the members of the association, if any should be drafted.

That the recruits themselves were volunteers is beyond doubt. They enlisted voluntarily and not in place of any one. The government recognising that fact paid them a bounty as volunteers, permitted them to select their own regiments and mustered them in at once before the draft. The fact that they were procured by the associations to enter the service does not detract from their own character as volunteers; nor is this character changed by the subsequent draft of members of the association, and their then standing as substitutes of the members drawn. This is simply the reward offered by the government to the association for its service in procuring the volunteers. Being in fact volunteers they were credited generally to the sub-district, and would stand as a general credit if none of the members of the association should be drawn. The only operation the Act of Congress had, was, when a member of the association should be drawn, to cause the general credit then to enure to the particular benefit of the association procuring the volunteer, thus screening its drafted member from service, as the reward of the association for its service in procuring the volunteer. These five men being volunteers when the bounty was paid, the time of the passage of the Act of Congress can make no difference. There was no error in allowing the estate of McClure the credit for their payment. This renders the other question as to the amount stated of no importance.

Decree affirmed.


author: Sharswood, J. —

text:
    Stewart versus Peterson’s Executors.
    1. An action of debt or scire facias may be brought on a judgment after an execution issued.
    2. It is not a valid objection to an action on a judgment, that at the time of its commencement the plaintiff could have proceeded by execution.
    3. The same rule applies to scire facias, which, in Pennsylvania, has taken the place of debt on judgment.
    4. Scire facias in this state has all the qualities and incidents of an action: the judgment is “quod recuperet” not merely an award of execution.
    5. A scire facias on a judgment is necessary to secure a new or continue the old lien upon land of the debtor.
    6. A fi. fa. was issued on a judgment, to which there was no return. Held to be no objection to proceeding by scire facias.
    7. A scire facias may be maintained against a plaintiff by a defendant who has recovered judgment for costs.
    8. The Statute of Limitations does not apply to actions of debt or scire facias on judgments.
    November 12th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 122, to October and November Term 1869.
    This was a scire facias issued, May 4th 1869, by William Peterson and another, executors, &c., of H. H. Peterson, deceased, against William H. Stewart.
    W. H. Stewart, in 1851, brought a suit against the executors of H. H. Peterson, deceased, in which the defendants recovered a verdict; judgment was entered on the verdict January 4th 1856. On the 10th of June the defendants’ costs were taxed at $135.73. On the 30th of October 1856 a fi. fa. for costs was issued, to this there has been no return. No further proceedings were had in the case until the issuing of this scire facias.
    On the 14th of June Stewart filed an affidavit of defence, “that the time elapsed since the first judgment was had in this case, is, by operation of tbe Statute of Limitations, conclusive, tbe costs in any case being but an incident of the judgment, and which incident arises merely by implication creating an implied promise legally to pay, and is a subject upon which the Statute of Limitations will fully operate, and which will and does give the defendant a full and legal defence, who hereby denies, by his agent, any right existing in ■ the plaintiffs to have a judgment in this case merely for the purpose of collecting costs, and for this that the parties for whom the costs are coming, and due and owing, either are not living or are themselves cut out by the Statute of Limitations, and cannot collect the costs themselves, and consequently the plaintiffs should not be allowed to do that which their principals cannot do.”
    On the 25th of June the court entered judgment against Stewart for want of a sufficient affidavit of defence.
    This was the error assigned on the removal of the case to the Supreme Court.

      J. JR. Large, for plaintiff in error,
    cited Stat. 23 Henry VIII., cap. XV.; Roberts’ Dig. 121; 6 Edw. I., cap. I.; Id. 107.

      JR. S. Wood, for defendants in error.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

At common law where a party had recovered a judgment in a personal action, and suffered a year and a day to elapse without taking out execution, he was driven in order to reap the fruits of it to a new action of debt upon the judgment. The Statute of Westminster 2, 13 Edw. 1, St. 1, c. 45, first gave a writ of scire facias in such a ease, as was the law previously in real actions: 6 Bacon’s Abr. fit. “Scire Facias”, C.; Roberts Dig. 240. The right to resort to the former action still remained, and it seems to be the settled doctrine that it might be maintained as well within the year as afterwards; so that even though the party might issue execution, he could still sue an original in debt. It is laid down in the Year Book, 43 Edw. 3, 2, 6, that “ if one recover upon a statute merchant, the statute gives an execution by capias and also against the land, notwithstanding he can have a writ of debt.” This authority is relied upon as establishing the point by the most respectable of our standard writers: Com. Dig. “ Debt,” A. 2 ; 2 Bacon’s Abr. tit. “Debt,” A.; Wheaton’s Selwyn 616, 7th Amer. Ed. The weight of the American cases is the same way: Clark v. Goodwin, 14 Mass. 237; Hale v. Angel, 20 Johns. 342; Church v. Cole, 1 Hill 645; Denison v. Williams, 4 Conn. 402. It is not a valid objection to the action that at the time it was commenced, the plaintiff could have proceeded by execution upon the original judgment: Headley v. Roby, 6 Ohio 523; Kings-land v. Forest, 19 Alabama 519; White River Bank v. Downess, 29 Vermont 332; Greathouse v. Smith, 3 Scam. 541; Davison v. Nebaker, 21 Indiana 334. The reason for this was that at common law the plaintiff could have execution only for the amount of the judgment without interest. In order to recover that he must resort to a new action. Hence our Act of 1700 (1 Smith’s Laws 7) provided that “ lawful interest shall be allowed to the creditor for the sum or value he obtained judgment for, from the time the said judgment was obtained till the time of sale or till satisfaction be made.” There exists no reason why the same rule, which as we have seen obtains in actions of debt on the judgment, should not apply to proceedings by scire facias, which have so completely and so properly taken their place in this state. Indeed a scire facias on a judgment has with us all the qualities and incidents of an action. The judgment in it is quod recuperet, not as elsewhere merely an award of execution: Shaeffer v. Child, 7 Watts 84. It bears interest on the whole amount recovered including interest on the original judgment, while in England on the contrary in a scire facias no damages are recoverable and of course no interest: Berryhill v. Wells, 5 Binn. 56; Meason’s Estate, 5 Watts 464. And though the reason for bringing a new action instead of taking out an execution, that in that way only can interest be recovered, does not exist in Pennsylvania, yet there may be another and equally good reason for it here, which is that it is necessary to secure a new or continue the old lien upon the land of the debtor: Clippinger v. Miller, 1 Penna. Rep. 64. The Act of Assembly of March 26th 1827, sect. 3 (Pamph. L. 130), explicitly declares that “ no order or rule of court or any other process or proceeding thereof shall have the effect of obviating the necessity of a revival by scire facias to continue the lien of a judgment, and specifies particularly in the first section “ an execution issued within a year and a day from the rendering of such judgment Styer’s Appeal, 9 Harris 86. The record before us exhibits a scire facias post annum et diem, to revive and continue the lien of a judgment, and if the plaintiff below had a valid and subsisting judgment against the defendant he had a right to prosecute such writ in order to obtain a new judgment, which would attach as a lien to the defendant’s lands, even though he might have been entitled to an alias fieri facias, grounded upon the fieri facias, which appears to have been issued. The want of a return to that writ formed no objection to his proceeding. Had the money been made under it, or, for any other reason, the debt paid or discharged in whole or in part, it would certainly have been a defence. But nothing of the kind is alleged. In Gist v. Wilson, 2 Watts 30, which is a ease indeed in point, there had been a fieri facias and a levy upon land, but no inquisition. The court said: “ According to the case stated, the plaintiff is clearly entitled to have the lien revived; hut as it appears that there is an outstanding fi. fa. issued on this judgment and levied on the land, the award of another execution cannot be had, till it is put out of the way by an order to quash, should the plaintiff think it his interest to move it.”

It remains to consider whether the plaintiff below had such a judgment, as could be revived by scire facias. There had been a verdict for him as defendant in that suit, which undoubtedly carried costs. These costs were regularly taxed and assessed under the order of the court, and their amount ascertained. At common law neither plaintiff nor defendant recovered any costs. They were allowed to the plaintiff by the Statute of Gloucester, 6 Edw. 1, c. 1 (Roberts’ Dig. 107), but the defendant had no costs until 23 Hen. 8, two hundred and fifty-three years afterwards, when by statute it was provided that upon the plaintiff’s being nonsuited or a verdict passing against him, in certain actions therein enumerated “ the defendant or defendants in every such action, bill or plaint shall have judgment to recover his costs against every such plaintiff or plaintiffs, and that to be assessed and taxed by the discretion of the judge or judges of the court where any such action, bill or plaint shall be commenced, sued or taken(Roberts’ Dig. 121); and subsequently the statute 4 James 1, e. 3, reciting that this law had been found to be very good and beneficial for the commonwealth and thereby “ many have been discouraged from bringing frivolous and unjust suits, because such parties are to make recompense to the parties, unjustly vexed for the said unjust vexations,” extended the provision of the statute of 23 Hen. 8 to all other forms of action (Roberts’ Dig. 129). That a defendant having recovered a judgment for costs against a plaintiff pursuant to these statutes may maintain an action of debt upon it, is a point as well settled by authority both in England and America as any point can well be: 1 Saund. Pl. & Ev. 114, tit. “Judgment.” In Murray v. Wilson, 1 Wilson 316, and Harward v. Furborn, Cro. Eliz. 96, it was ruled expressly that debt lies in the King’s Bench or Common Pleas upon a judgment of nonsuit in an inferior court to recover the costs. Hayes v. Newmarch, 1 Allen 51, and Ives v. Finch, 28 Conn. 112, are to the same effect. In Rogers v. Burns, 3 Casey 525, this court adjudicated upon such an action on a judgment for defendant in a sister state, and there held that although an exemplification of a record does not show a taxation of the costs, it will be presumed when a judgment is entered stating the aggregate of the costs. As we have seen that a proceeding by scire facias takes the place with us of an action of debt in all respects, the plaintiff below can maintain his action in that form. The Act of Assembly of June 16th 1836, sect. 2 (Pamph. L. 762), enacts that “ after the expiration of the period aforesaid no execution shall be issued on any judgment,” without a scire facias. The period there referred to was the old common-law period of a year and a day, which has since been extended to five years by the Act of April 16th 1845, sect. 4 (Pamph. L. 538). The Statute of Limitations does not apply to actions of debt or scire facias on judgments, and it follows that the affidavit of defence filed in the court below was insufficient, and judgment was rightly entered for the plaintiff below, notwithstanding the affidavit.

Judgment affirmed.


author: Thompson, C. J. —

text:
    Dietz versus Langfitt.
    1. All homicides are presumably unlawful.
    2. The fact that a homicide has been committed is probable cause for commencing a prosecution against the perpetrator.
    3. In action for malicious prosecution for instituting a charge of homicide, evidence that the prosecutor stated before the grand jury that as the coroner’s inquest had found the killing to be accidental he did not wish to prosecute further, was proper on the question of malice.
    4. A child was run over by a street car and killed. Dietz, the uncle of the child, made information against the driver. The magistrate said to Dietz that the father was the proper person to make the information; but Dietz insisted on making it, as the father was too much excited. The judge stated this to the jury, and added, “Was this sufficient justification in this case ? If it was, then the plaintiff cannot recover." Held to be error, as leaving it to be inferred by the jury that if they thought it was not a justification the plaintiff might recover.
    5. It is the duty of every citizen to procure a warrant where there is good reason to believe that a high crime has been committed.
    6. A plaintiff in an action for malicious prosecution must establish both malice and want of probable cause.
    7. Malice may sometimes be inferred from want of probable cause, where there is nothing to rebut the inference; but this is the inference of a fact.
    8. Where there is probable cause, it is not material whether the prosecutor be actuated by malice or not.
    9. In an action for malicious prosecution, the judge charged, “It is not necessary the defendant should have malice towards the particular person, but malice is a disregard of what a man owes to society.” Held to be error.
    10. What is probable cause, and whether it exists in the proof, if believed, is a question of -law; whether the proof establishes it is for the jury.
    November 12th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 133, to October and November Term 1869.
    This was an action on the case brought July 15th 1867, by John Langfitt against Jacob Dietz. The cause of action was malicious prosecution.
    The plaintiff was the driver of a street passenger car. On the 6th of April 1867, whilst driving through the streets of Lawrence-ville, his ear ran over Adam Boust, a child of George Boust, and about two years and a half old. The child was crushed and mangled, and died in about forty minutes after the accident. The defendant, Dietz, was the uncle of the child, but had not seen the accident when it occurred. After going to the house of the child’s father, and seeing the condition of the child, he went to the office of William Jancey, a justice of the peace in Lawrenceville and made information against Langfitt, under which he was committed to prison, and remained there from Saturday until Monday, when he was discharged on bail. At the next Court of Quarter Sessions a bill against Langfitt sent to the grand jury, was returned “ignoramus,” and Langfitt finally dischargéd. He then brought this action.
    The foregoing facts appeared on the trial, June 3d 1869, before Kirkpatrick, J. The plaintiff in addition gave in evidence the information made before Esquire Jancey, viz.:
    “ Jacob Dietz, of the borough of Lawrenceville, in said county, storekeeper, being duly sworn, saith that a certain person named John Langfitt, driver of No. 31 Citizens Passenger Railway car, did wilfully, and wickedly, and carelessly, on the 6th day of April, A. D. 1867, drive over a child aged three years, belonging to George Boust, in the borough of Lawrenceville.
    “ Defendant asks that a warrant may be issued for the arrest of the said John Langfitt, car .driver, and that he be held to answer the charge of careless driving on said road, causing the death of Adam Boust.”
    Esquire Jancey testified that the defendant came to his office, stated that the driver of a passenger ear had run over a child of George Boust, and he, the defendant, wanted to make information. The witness asked where the father was, defendant said he was too excited to come; witness told him it would be better for the father to make it; defendant still stated the father was too much excited to come.
    The plaintiff testified that whilst driving, he was looking straight ahead, and saw something on the other side of the car, as the car passed over; it was something very soft, he did not know what it was; he stopped and did not see any thing till the child was picked up. There was much evidence on both sides as to the circumstances of the accident and on the question of carelessness on the part of the plaintiff; also as to requests by the father of the child and others who were at the house, to the defendant to make the information against the plaintiff.
    The defendant being under examination as a witness, it was proposed to prove by him that he went before the grand jury and stated to them that as the coroner’s jury had found that the killing of the child was an accident, he did not wish to prosecute the case any farther. The offer was objected to by the plaintiff, rejected by the court, and a bill of exceptions was sealed.
    The court charged:— * *
    “ The law presumes every public prosecution for crime to be commenced and carried on for the public good, and without malice in the prosecutor, and with reasonable and probable cause — that is the presumption of the law. That is, the plaintiff in an action of this kind must prove that the defendant had no reasonable cause to believe him guilty of the crime charged, and that in commencing and carrying on the prosecution he was actuated by malice. What constitutes reasonable or probable cause, does not depend upon the actual guilt of the party charged, but an honest and reasonable belief of the prosecutor. It is not in this case whether John W. Langfitt was or was not guilty of the crime of murder or manslaughter, or careless driving over this child, but what was the belief of Dietz at the time he made the charge. This is the point in the case around which all centres. A man has no right to go before a magistrate and make a charge without cause, for a man’s reputation is dearer than his life. A man should consider and act as a cautious man would. I do not wish to express any opinion in regard to the conduct of Dietz, but had he reasonable and probable cause to charge Langfitt with whatever you may find that information charges him with ? This does not depend upon the actual guilt of the party charged, but has he cause for reasonable belief? It has been defined to be a reasonable ground of suspicion, supported by circumstances sufficient to warrant a cautious man to believe that the party is guilty of’ the offence.
    “Was there in the facts connected with the making of this information sufficient grounds to warrant a cautious man, a man even of ordinary prudence, in believing that John W. Langfitt was guilty of either murder or manslaughter, or carelessly and maliciously running over this child? If there was, he is acquitted in this ease, and the plaintiff cannot recover. If not, he is liable in damages, and should respond in such an amount as you, as conscientious men, as jurors, think you ought to impose upon him.
    “It is not necessary for him to be guilty. Were there such suspicious circumstances as would induce a man of ordinary caution and prudence to make this arrest? I will allude to what transpired at the magistrate’s office. It would seem that Squire Jancey thought the father to be.the proper person to make the information. [The answer Dietz gave, was, that the father had the child, and was too much excited to make the information against Langfitt. Was that sufficient justification in this case?] If it was, then Dietz is not liable, and the plaintiff cannot recover in this suit. There are other witnesses that make other statements. The substance of all the definitions is reasonable ground for belief of guilt. It can make no difference what induced the belief of guilt, if it bé reasonably sufficient. On the other hand, citizens are to protect the public, and the court shall not frown upon honest efforts to bring the guilty party to justice. Was Dietz, in making this information, actuated by an honest and sincere desire to bring this man to justice? That is the question for you to determine. [If you think he-was actuated by malice, or want of probable cause, then the plaintiff is entitled to recover in such amount as you deem proper.] [Let me suggest in regard to malice. It is not necessary that he should have malice toward the particular party, but malice is disregard to what a man owes to society.]
    “ Let us inquire what is meant by malice in an action of this kind. Want of probable cause is evidence of malice, but it is not malice itself. So, your inquiry will be — under all the circumstances of the case — the suddenness of the accident, the excitement of the moment, the assertions of the bystanders, the request of the father or mother, or both, whether it was such a suggestion as would have induced a cautious, prudent man to have gone to the magistrate and charged a man either with murder or manslaughter, or the crime that it is claimed he did charge him with. Would you have done that, you, as jurors, who the law says, are the best illustration to define a prudent man, would you, related as Dietz was by the ties of blood to this child, would you have gone under the circumstances — would any man, a cautious man, a man of ordinary prudence, have gone off and made a charge of this kind against a fellow-citizen ? If you think you would, — if you think the circumstances would warrant a man of ordinary caution in doing it, then Dietz had the right to do it, and your verdict will be for the defendant. [If you think the conduct of Dietz is unwarranted; that he had not probable cause; that he was actuated by malice, or if without malice, without cause and justification, then Dietz is to blame, and should respond to damages.] And touching damages — if you should go so far as that —I have only to say, that your justice should be tempered by mercy, and you should render such a verdict as would deter him and others from repeating an action of this kind.”
    The verdict was for the plaintiff for $225. The defendant took a writ of error and assigned the following errors:—
    1. The rejection of his offer of evidence.
    3, 4, 5 and 6. The several parts of the charge included in brackets in their order.

      Howard $ Shaffer, for the plaintiff in error,
    cited Le Maistre v. Hunter, Brightly’s R. 496.

      T. M. Marshall

    cited Schofield v. Ferrers, 11 Wright 197; Smith v. Ege, 2 P. F. Smith 421.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

It is somewhat difficult in view of the facts of this case, to restrain an expression of surprise, if nothing more, at the result of the trial below. The action was for malicious prosecution, the facts relating to which are few, and easily stated.

The plaintiff below was the driver and conductor of a passenger railway car, and was driving through the borough of Lawrence-ville, Allegheny county, on the 6th of April 1867, when, about noon of that day, he drove over and killed an infant aged about two and a half years, child of one George Boust, a citizen of the town. The defendant was the uncle of the deceased, and hearing of the accident went at once to the house of Boust, and finding the child crushed and at the point of death, proceeded, at the request of its parents and others present, to the office of a magistrate and procured a warrant for the arrest of the plaintiff on information made by himself, charging him with wilfully, wickedly, and carelessly driving over the child, and procured a warrant for his arrest for killing the child. The child lived some forty minutes after being run over and then expired. When the plaintiff was brought up, the child being dead, the magistrate refused bail and committed him. This was on Saturday, and he remained in jail till Monday. In the meantime a coroner’s inquest had been held, and the jury found that the killing was accidental. In consequence of this he was admitted to bail for his appearance at court. At the ensuing term the case was sent to the grand jury, and the bill for murder, or perhaps manslaughter, was ignored. It is nowhere stated what the nature of the bill was ; but it must have been for one or other of these offences, or both.

The plaintiff gave in evidence the bill of indictment to show the action of the grand jury upon it. This was a necessary part of his case. The defendant in order to show how this came about, and that he had no malice towards the plaintiff, which might have been an inference from the ignoramus of the bill, proposed to prove by the defendant on the stand, the only witness before the grand jury — “ that he stated to them that as the coroner’s inquest had found the killing had been accidental, he did not wish to prosecute further.” The offer was rejected by the court. In considering this exception we must take the fact as true, and we may take it as true in stating the circumstances of the case. Under this state of facts, and notwithstanding the child was killed by the driving of the plaintiff in broad daylight in an open street, and notwithstanding the entire absence of express malice on part of the defendant, the jury rendered a verdict for the plaintiff of $225 and costs. Almost anybody would be ready to conclude that such a result must have had the aid of error somewhere. I presume it is the first time in the history of judicial proceedings that a prosecution for a homicide, unmistakably committed, begun before it could be known whether it was wilful, negligent or accidental, the prosecutor was ever punished for putting the law in motion to ascertain whether there was guilt in it or not. As all homicides are presumably unlawful, the fact of itself is probable cause for proceeding against the perpetrator. But I will proceed with the assignments of error.

The first is the ruling of the learned judge in rejecting the offer of testimony as above stated. Wherefore should it have been rejected? The witness was competent, the facts were not privileged from disclosure by the witness, and on the defendant’s theory of his case in regard to malice, it was most material to the defence. There being, therefore, nothing like a good objection to it, it was clearly error to reject it, and the error is sustained.

The next assignment to be considered is the third (the second being totally defective and not to be noticed), and that relates to the'remark of the learned judge about what transpired at the magistrate’s office when the defendant applied for a warrant. I will give the whole of the remarks as to that matter, a part only of which is assigned for error, in order that we may more clearly see the force of it. “It would seem,” said the judge, — “that ’Squire Jancey thought the father ought to be the proper person to make the information. The answer Dietz gave was, that the father had the child, and was too much excited to make the information against Langfitt. Was that a sufficient justification in this case ? If it was, then Dietz is not liable, and the plaintiff cannot recover in this suit.” This plainly left it to be inferred by the jury, that if they should think that it was not, the plaintiff might recover. This was entirely a new ground of recovery, regardless of everything hut the question of the sufficiency of the reason for the non-appearance of the father to prosecute for the killing of his child. This endangered the defendant by a consideration entirely outside of the case.

If it might not have misled the jury to this extent, it could hardly have failed to have led them to believe that Dietz was not a proper party to procure a warrant for what appeared to be a palpable felony. It must have been an oversight in the hurry of trial, which led the learned judge to make a question of the right of any citizen to procure a warrant where there was every reason to believe that a high crime had been 'committed. It was the duty of any and every citizen. This assignment of error is also sustained.

The 4th assignment is also to a portion of the charge, as follows: “ If you think he (Dietz) was actuated by malice or want of probable cause, then the plaintiff is entitled to recover such an amount as you deem proper.”

Passing by the unbounded latitude given the jury on the subject-of damages, which we disapprove, the error in what the learned judge deemed essential to be proved in this action, will claim attention here. It is the rule of the text-books, and settled by a uniformity of decision, in which there is no break, that a plaintiff in an action for malicious prosecution, must establish both malice and want of probable cause against the defendant. Saunders on Plead, and Ev., vol. 2, p. 332, says: “ This is most essential proof, and a failure in it would entitle the defendant to a verdict.” Eor this he cites many authorities, and among them Coke Litt. 161, n. 4. “ Though the plaintiff should prove malice,” says the same author, at same page, “ yet if he failed to prove want of probable cause for the proceedings he would not succeed,” and many authorities are cited for this. This is our own rule, and is to be found in most of our books of reports.

The learned judge, however, charged that malice or want of probable cause was sufficient to entitle the plaintiff to recover. This was equivalent to instructing the jury, that malice of itself without the ingredient of want of probable cause, or e converso, want of probable cause without malice, would equally well support the action. That is to say, the one or the other, or either, would sustain it. Whether this was a lapse of tongue or pen we know not; but as it is in the charge returned with the record, we must presume it to have been given to the jury as it there appears. It was an undoubted and damaging error. The jury should, instead, have been instructed that malice and want of probable cause must concur and be shown to entitle the plaintiff to a verdict. While malice may be inferred, sometimes from want of probable cause, where there is nothing to rebut the inference, still it is the inference of a fact, and this illustrates the error noticed in the rejection of the testimony offered to rebut the inference of malice to be drawn of want of probable cause, by throwing out the bill by the grand jury. The jury should have been instructed that where there is probable cause it is not of the slightest consequence whether the prosecutor be actuated by malice or not. Park, J., in Mitchell v. Jenkins, 5 B. & Ald. 588, said: “ If there be reasonable or probable cause, no malice, however distinctly proved, will make the defendant liable.” If this were not so, the evil spirit of the prosecutor might redeem the evil act of the criminal.

This error is also sustained.

So we think the 5th assignment of error is also sustained. The learned judge charged that, “it is not necessary that he (the defendant) should have malice towards the particular party, but malice is a disregard of what a man owes to society.”

This shed not a ray of light on the question of malice as applicable to the issue trying. Elementary writers, to be sure, have divided malice into two kinds: malice in law, and malice in fact. The former is understood to be ill-will generally; the latter, malus animus directing the party from improper motives to do a wrong act intentionally towards the plaintiff. It must culminate in a specific act towards him, or it is harmless as to him. The charge, however, it seems to us, reached beyond this in its terms to the extent of ’ allowing the jury, if they chose, to assess damages against the defendant on account of general malice without reference to its exercise against the plaintiff. We say this may have been the effect of the language used, although doubtless not intended, but it was manifestly deficient in perspicuity and thus may have misled the jury. This has often been held a sufficient ground for the reversal of a judgment.

We feel obliged also to sustain the 6th assignment of error. It is assigned upon that portion of the charge wherein it was said, “If you think the conduct of Dietz was unwarranted; that he had not probable cause; that he was actuated by malice; or, if without malice, without cause or justification, then Dietz is to blame, and should respond in damages.”

This is a repetition of the error noticed in the 4th assignment, which claimed that the charge sanctioned a recovery if there was malice, without regard to the essential of want of probable cause, or for a want of probable cause, if there was malice. The notice of that error is sufficient for this. That was error, and so is this.

The question of what is probable cause, and whether it exists in the proof, if believed, is a question of law for the court; whether the proof establishes it, is for the jury: Fisher v. Forrester, 9 Casey 501. Here the court gave no instruction to the jury whether there was probable cause or not, but left that question, as well as the question of the proof of the fact, to the jury, without the assistance which the law imposes upon the court; and thus the whole case was thrown upon the jury. If there ever was a case in which it was the duty of a court to declare the law, it was here. Here was a homicide; scarcely by misadventure; certainly not so when the prosecution was instituted, committed in open day, in a broad, straight street, and without excuse at first, and at last the only excuse the perpetrator gave, was that he kept his eyes straight ahead while driving and drove over the child without seeing it. If there was not probable cause for a prosecution for murder or manslaughter here, and so to be pronounced by the court, there never will be again. The court erred in not so pronouncing.

These views sufficiently show that this judgment must be reversed.

Judgment reversed, and venire facias de novo awarded.


author: Agnew, J. —

text:
    Campbell et al. versus Fleming.
    1. Id. an action against an administrator for the debt of his intestate, the Statute of Limitations is a bar, although six years had not elapsed at the death of the decedent, and the suit was brought within six years after his death.
    2. McOlintoek’s Appeal, 5 Casey 361, is not applicable to a case where an action is brought directly against the administrator.
    3. The Act of 1797, section 4th, substituted by the 24th section of Act of February 1834, was not an enlarging, but a restraining act for the purpose of confining the prior unrestricted lien of a decedent’s debts against his estate.
    4. The Act of 1797, section 4, did not create a lien, but limited it to a term of years.
    5. Micheltree v. Yeech, 7 Casey 455, and McCandless’s Appeal, 11 P. F.. Smith 9, considered.
    November 12th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe District Court of Allegheny county: No. 138, to October and November 'Term 1869.
    Hugh S. Fleming, on tbe 4th of March 1868, brought an action of assumpsit against Henry Campbell, administrator, &e., of Nelson Campbell, deceased, with notice to Jane Campbell and others, heirs of the said decedent, and also with notice to Richard Nutall and others, terre-tenants. 'The defendants pleaded non assumpsit, &c., and the Statute of Limitations.
    The cause of action was a promissory note for $562.30, drawn by the decedent in favor of the plaintiff, dated October 6th 1858, and payable four months after date. The decedent died March 29th 1863. Having given the note in evidence, the plaintiffs rested.
    The defendant having proved 'books to be those of the Mechanics’ Savings Bank of Allegheny City, offered the books in evidence for the purpose of showing that the note in suit had been discounted by that bank; that the proceeds were credited to the plaintiff, and did not appear to have been charged to him at maturity.
    The offer was objected to as not stating that the note was paid by the drawer, and that the fact of the note being in the plaintiff’s hands is evidence of itself that he paid it.
    The offer was rejected, and a bill of exceptions was sealed.
    The defendant proved that the plaintiff had been president of the bank at the time the note was discounted and paid. He then proposed to prove that from the time the note became due and up till the death of Nelson Campbell he was a man of large property, considered entirely solvent, and left a very large estate. Tbe offer w’as objected to, rejected, and a bill of exceptions sealed.
    He then gave evidence by Elizabeth McElhenney, a daughter of Alexander Cameron, who had been cashier of the bank, and was dead, that the note in suit was in her father’s possession on the 31st of January 1868, in his private box; he was not then cashier; at her father’s direction she took the note to the First National Bank to be delivered to the plaintiff: there were other papers belonging to the .plaintiff in the box.
    It was admitted that no demand had been made on the administrators for payment of the note until February 4th 1868. The note was not protested, nor was there a waiver of protest: if it had not been paid at maturity it would have been protested. The note was discounted at the bank, and the plaintiff received the proceeds.
    The defendant renewed his offer of the books of the bank: the offer was again rejected, and a bill of exceptions sealed.
    The defendants asked the court to charge that the debt was barred by the Statute of Limitations. This point was reserved, and the court charged: — ■
    “We instruct you, as a matter of law, that under all the evidence in the case, the plaintiff is entitled to recover, and we direct you so to find, subject to the opinion of the court on the question of law reserved whether or not the claim is barred by the Statute of Limitations.”
    The verdict was for the plaintiff for $902.50, subject to the question of law reserved. Judgment was afterwards entered on the verdict, on the reserved question.
    The defendants took a writ of error, and assigned for error the rejection of their offers of evidence, and entering judgment on the reserved question.

      White ¿f* Slagle, for plaintiffs in error. —
    The claim was barred by the Statute of Limitations, Acts of March 27th 1713, sect. 1,1 Smith’s L. 7 6, May 28th 1715, § 6,1 Smith’s L. 91; Purd. 655,656 pi. 16,23. The act covers claims against decedents’ estates as well as against individuals, and they are not affected by the 34th sect, of Act of February 24th 1834: Pamph. L. 79, Purd. 288, pi. 100. A promise to pay by an administrator will not revive a barred debt: Kyle v. Wells, 5 Harris 286; Gillingham v. Gillingham, Id. 302; Chandler v. Glover’s Adm’r., 8 Casey 509; Fritz v. Thomas, 1 Whart. 66; Man v. Warner, 4 Id. 480; Marseilles v. Kenton, 5 Harris 244; Micheltree v. Veach, 7 Casey 455; Forney v. Benedict, 5 Barr 226. When a statute has commenced it will not be suspended: Hall v. Vandergrift, 3 Binn. 374; Foulk v. Brown, 2 Watts 215. That the suit is brought to enforce a lien under the 24th sect, of Act of February 24th 1834, Pamph. L. 77, Purd. 285, pi. 82, makes no difference. The 34th sect, of the Act of 1834, applies only to cases where it is intended to charge the lands by execution, and it is not necessary to make the widow and heirs parties in the first instance: Murphy’s Appeal, 8 W. & S. 165; Benner v. Phillips, 9 Id. 16; Atherton v. Atherton, 2 Barr 112. Anterior to the Act of April 4th 1797, sec. 43, Smith’s L. 296, the lien of a decedent’s debts was indefinite : Trevor v. Ellenberger, 2 Penna. R. 94. An application to the Orphans’ Court will not be entertained to sell lands to pay a decedent’s debts which are barred by the statute : Pry’s Appeal, 8 Watts 253; Clauser’s Est., 1 W. & S. 215; Benner v. Phillips, supra. As to the rejection of their offers of evidence, they cited Mullen v. French, 9 Watts 97; Chitty on Contracts 806; Tilghman v. Fisher, 9 Watts 442; King v. Coulter, 2 Grant 77.

      T. PC. Geyer, for defendant in error:
    As to Statute of Limitations referred to Act of February 24th 1834, sect. 21, Pamph. L. 76, Purd. 284, pi. 79; McClintock’s Appeal, 5 Casey 361; Micheltree v. Veach, 7 Casey 455; Man v. Warner, 4 Whart. 476; Curcier’s Est., 4 Casey 263; Hoch’s Appeal, 9 Harris 282. Act of 1834, sect. 24, 34; Act of 1797, supra: Penn v. Hamilton, 2 Watts 58; Duncan v. Clark, 7 Id. 217; Maus v. Hummel, 1 Jones 230; Schwartz’s Est., 2 Harris 42; Moore v. Skelton, Id. 361; Demmy’s Appeal, 7 Wright 166
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

It was an error to refuse to the administrator the benefit of the plea of the Statute of Limitations. In Man v. Warren, 1 Whart. 455, a case most elaborately argued and carefully decided, it was held that the statute applies to -claims against the estates of deceased persons, whether payable in the lifetime of the decedent or falling due after his death. The same point was decided expressly in Mitcheltree’s Admr. v. Veach, 7 Casey 455, and the case of McClintock’s Appeal distinguished on the ground that the creditor was there claiming to be paid out of a fund in the Orphans’ Court viewed as á trust, to which the debt having attached, the subsequent running of time did not bring it within the bar of the statute. To hold that when an action is brought for a debt against the administrator, the statute cannot be pleaded with effect, is to contradict all those cases in which it has been decided that a debt is not revived by a promise of the administrator to pay it: Fritz v. Thomas, 1 Whart. 66; Steel v. Steel, 2 Jones 64; Clark v. Maguire’s Admr., 11 Casey 259. It contravenes also those deciding that the creditors and others interested may intervene and plead the statute: Hoch’s Appeal, 9 Harris 280; Ritter’s Appeal, 11 Id. 96; Kittera’s Estate, 5 Id. 416. In some of these cases the fund was in the Orphans’ Court for distribution. How McClintock’s Appeal can stand against all these cases I could not myself perceive, and therefore dissented from the judgment of my brethren last winter at Philadelphia, reaffirming it, in its application to the facts in the case of McCandless’s Estate, 11 P. F. Smith 9.

In McClintock’s Appeal, not a cited case appears in the argument of counsel or the opinion of the court. It is counter also to the whole policy of restraining liens against the estates of decedents found in the Act of ,24th February 1884, as will be seen in a full summary in the opinion in the case of Trinity Church v. Watson, 14 Wright 528. McClintock’s Appeal has been recognised, however, within the narrow field of its facts; and my purpose is not to deny its authority, but to show that its sphere is not to be extended, and to add that we all regard it as inapplicable to a case where an action is brought directly against the administrator.

The very ingenious argument for the defendant in error overlooks the fact that the 4th section of the Act of 1797, substituted in this respect by the 24th section of the Act of 24th February 1834, was not an enlarging, but a restraining act for the purpose of confining the prior unrestricted lien of the debts of a decedent against his estate. It did not create a lien, but limited it to a term of years, now five. Its purpose was to take away the unrestricted lien, in order that estates might be settled in a convenient season: Trinity Church v. Watson, supra. The argument overlooks also the fact that the 24th section of the Act of 1834, as well as the 34th, its handmaid, relates only to real estate, making no change therefore in the law as to personal estate, the primary fund for the payment of debts. The administrator is the sole representative of this primary fund, and it would present a singular feature, if in an- action with notice to the widow and heirs to charge the real estate, a judgment could be obtained against the bar of the Statute of Limitations to bind the real estate, when the personal estate would be relieved by the plea of the statute. The Statute of Limitations was well pleaded therefore in -this case, and the court erred in not supporting it. The offers of evidence were partial. The 3d, which is the most perfect, omits the important fact as to how the plaintiff came into possession of the note. Lut as a whole undoubtedly the defendant was entitled to have the évidence submitted to the jury. The note fell due in February 1859. It had been discounted in the hank, and the proceeds carried to Fleming’s credit. The note was not protested and charged to Fleming, showing that it was satisfied in some way. It remained in possession of the cashier who held it after the death of Campbell in 1863 until 1868, when it was handed to the plaintiff by the daughter of the cashier by his direction. During all this time no demand was ever made of Campbell, nor of his administrator, to whose hands an ample estate came. Now while it is possible that Fleming had paid the note to the bank, yet the circumstances were strongly persuasive evidence that it had been paid by Campbell, and ought to have gone to the jury.

Judgment reversed, and a venire facias de novo awarded.