author: Thompson, C. J. —

text:
    Kountz versus Kennedy.
    1. H. bought property from K., and in payment gave him a note at eighteen months payable to W. and by him endorsed. On the same day, after the delivery of the note to K., he returned with it to the clerk of H., said it was to have been drawn with interest, and the clerk, with the assent of H., added “ with interest.” The note being unpaid by the drawer at maturity, K. sued W. and gave in evidence the note with the addition taken out. Held, the alteration not having been fraudulently made, that W. was liable notwithstanding the alteration.
    2. Restoring the note to its original condition by erasing the alteration was not a fraud on the endorser, for it left the note as it was when he endorsed it.
    3. The material test as to liability on an altered instrument is whether its identity remains.
    4. If the alteration of a note, &e., be made fraudulently or with an illegal intent, or the original words cannot be certainly restored, or any party has become interested in it or affected by it or related to it since the alteration so that the alteration will do him wrong, the party making the alteration must abide by it and its consequences; otherwise he may restore the note to its original form and force.
    5. If when satisfaction of a note is demanded it be the same as before without having been fraudulently tampered with, it is not to be regarded as having been altered materially.
    6. There is no rule of law, independent of intention, which declares that an alteration not affecting ultimate liability makes the instrument void.
    November 9th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to tbe District Court of Allegheny county: No. 118, to October and November Term 1869.
    This was an action of assumpsit by James W. Kennedy against William J. Kountz to January Term 1868.
    The claim was by tbe plaintiff, as bolder, against tbe defendant as endorser of a note for $750, drawn by John P. Hunt, in favor of the defendant and by him endorsed.
    On tbe trial tbe plaintiff gave in evidence tbe note, with protest, as follows:—
    “ $750.00. Pittsburg, May 24th 1866.
    Eighteen months after date, I promise to pay to tbe order of W. J. Kountz, seven hundred and fifty dollars, without defalcation, for value received.
    John P. Hunt.
    Endorsed, W. J. Kountz.”
    And rested.
    Tbe defendant then examined N. P. Ramsey, tbe clerk of Hunt, who testified that be filled in the note at tbe instance of Hunt and within a short time, on tbe same day, tbe note was endorsed by tbe defendant. It was tbe consideration for a printing office sold by tbe plaintiff to Hunt. Tbe note was endorsed by tbe defendant in presence of tbe witness and delivered to plaintiff, who took it away, within an hour and a half afterwards plaintiff brought it back and told tbe witness that he bad neglected to add tbe words “with interest.” Tbe witness then inserted these words. Tbe witness further testified that tbe words seemed “to be taken out,” there seemed to be a kind of chemical used to take them out. They were not scratched out. On cross-examination tbe witness said that when tbe plaintiff brought tbe note back be said it was to be with interest, and that Hunt told him to wait till witness came back so as to have it in tbe same bandwriting; witness informed Hunt and Hunt did not object to it. Witness did not see tbe defendant after tbe alteration.
    Tbe evidence being closed and there being no disputed fact tbe court, with consent of tbe parties, directed a verdict for tbe plaintiff, “subject to tbe opinion of tbe court in banc, whether tbe plaintiff is entitled to recover, taking all tbe evidence to be true; and if so, then judgment to be entered on tbe verdict. But if be is not, then judgment to be entered for tbe defendant non obstante veredicto.”
    The jury found for the plaintiff for $814.68, subject to tbe reserved question. Tbe court afterwards entered judgment on tbe verdict on tbe question reserved. This, on removal of tbe case to tbe Supreme Court, was assigned for error.
    ■ B. W. Bell (with whom was A. iS. Bell), for plaintiff in error.—

      The alteration was material and the note is absolutely void: Struthers v. Kendall, 5 Watts 229; Southwark Bank v. Gross, 11 Casey 80; Hill v. Cooley, 10 Wright 261; 2 Parsons on Notes 545, 549, 550, 571. Being void it cannot be made good unless by consent of all parties.

      O. B. M. Smith, for defendant in error. —
    The endorser is liable for the amount of the note as it was when he endorsed it: Worrall v. Gheen, 3 Wright 388; Boyd v. Brotherson, 10 Wend. 93; 2 Parsons on Notes 570; Nevins v. De Grand, 15 Mass. 436.
   The opinion of the court was delivered, January 31st 1870, by

Thompson, C. J. —

This was an action by the plaintiff, the payee of the note in suit, against the endorser; he'gave in evidence the note and protest with proof of endorsement without objection, and rested.

The defence set up was, that the note had been altered, and to establish this the defendant called Ramsey, who had been the clerk of Hunt, the maker, to prove the alleged alteration. He testified that within an hour or an hour and a half after the making of the note, and after its delivery and endorsement by the defendant, as surety for the maker, the plaintiff brought it back to Hunt’s place of business, and told witness, Hunt being temporarily absent, that the note was to have been drawn “ with interest,” and that he, the witness, had neglected to insert it, that he had seen and informed Hunt of the omission, and that he, Hunt, was agreed it should be inserted. The witness says he then added the words “with interest,” and told Hunt of it when he came in, and that he assented to what had been done. The witness was then asked if the words had been “ scratched out,” and he answered that they were not there, but that they seemed to have been taken out by the use of some kind of chemicals.

This was the defence, nothing more or less. Certainly as between the maker and payee the note would not be affected by what had been done if it had remained on the paper. Nor is there a shade of suspicion from the evidence that the alteration was done for any fraudulent purpose. Not a doubt but that Kennedy expected to get his money from Hunt, the maker, and that Hunt expected to pay it. The endorser was hardly, at this early moment, expected to stand as the paying party by any of the parties to the note. An intention to defraud him by making the alteration is without anything in the testimony to support it, and was not pretended in argument. The sole ground of defence was the alteration of the note.

But the note in evidence was precisely in the form it was when endorsed. It had been returned to its original shape. The restoration was not a fraud on the endorser, for it left the note as it was when the endorsement was made. Now it seems to me, that, as the identity of the note remained and there was nothing in it to enlarge the obligation of the endorser, and as what had been done was innocently, but mistakenly done and expunged for aught we know, within the hour after it had been done, there is no rule of law unreasonable enough to hold it avoided by this.

I admit that if there had been evidence of a fraudulent tampering with the note, a different rule would apply. But regarding it as mistakenly done, in an attempt to make the note comply with the contract, and assented to by the original parties, one of them the principal in it, and without fraud, ought the consequences of such an act, done under such circumstances, be made to rank with fraud and perjury ? It ought to be regarded as it manifestly was, to the endorser, immaterial. The holder of the note never claimed any change of the endorser’s liability — and there is nothing in the note which does change it, or which shows a legal possibility of change. If this be so, and it is undeniable, the alteration was immaterial, and it is not for the endorser to escape liability by imputing an intention to make him liable, against the act of the holder to the contrary. Neither was the identity of the note changed. If its appearance was marred in the least, this was explained by the testimony, which showed the addition of two words, and the marks of their expurgation, which we are to presume, in accordance with the presumption of innocence, were expunged before any party was liable on the note. In Kendall v. Struthers, 5 Wright 229, the material test seemed to he, whether the identity of the note remained. No such question as this can be raised here. It remained precisely the same as it originally was. There is no subject in the books which has occupied a much larger share of attention than questions of the alteration of writings, but after all that has been said, each case must stand much more on its own facts than upon the rules announced in any given case. There are some general principles, however, that aid in arriving at results, and I think Mr. Parsons, in his work on Notes and Bills, vol. 2, p. 570, has some views material to be considered in this case. His acknowledged accuracy and ability give great weight to any subject of which he treats. Speaking of alterations of notes and bills, he says:—

“ The best view we can take of the question, which we suppose to be made difficult rather by facts and circumstances than by any uncertainty as to principles, is this: If the alteration be made fraudulently or with an illegal intention, or if the original words cannot be restored certainly, or, if any party has become interested in the note, or affected by it, or related to it since the alteration, in such a wa.y that the restoration will do any wrong to this party — in either of these cases we should say, the party must abide by the alteration he made, and accept the consequences of making it. But, unless one of these reasons exist, we are not aware of any good and sufficient argument for refusing to permit him to restore the instrument to its original form and force.” It is most certain that none of these exist in this case, and, therefore, there is no reason why the plaintiff should he prejudiced; the defendant is not.

In 1 Greenleaf on Ev. 5, 565, it is laid down, among other things, “that any alteration which causes the instrument to speak a language different in legal effect from that which it originally spoke is a material alteration.” I presume this ought to be regarded as applicable to the time when the instrument speaks in asserting its demand for satisfaction. If it be the same then, as before, without having been fraudulently tampered with, it can in no sense be regarded as having been altered materially.

Again, in the succeeding section, the learned author says, “ An alteration is an act done upon the instrument by which its meaning and language are changed. If what is written upon, or erased from the instrument, has no tendency to produce this result or to mislead any person, it is not an alteration.” “ The term at this day,” he adds, “ usually imports some fraud or improper design to change the effect of the instrument.” There is no absolute rule of law, independent of all considerations of intention, which rules that any alteration without affecting ultimate liability, renders the instrument void. That always depends on the materiality of the change, its effect, and the design with which it is made. We see no error in the instructions of the court to the effect that the plaintiff was entitled under the evidence to recover, and afterwards in entering judgment on the verdict, and, therefore, the judgment is affirmed.

Sharswood, J., dissented.


source: Caselaw Access Project

author: Agnew, J. —

license: Public Domain

text:
    Duff et al. versus Hoffman et al.

    1. Hoffman employed Borland to furnish lumber for a house. Borland got lumber from Duff, who charged it to him “for Hoffman’s house.” Held, that Duff had no lien for his lumber.
    2. An architect or builder is agent for the owner for erection, and had power to subject the building to a lien for workmen or material-men: it was not so with a contractor; he built on his own credit.
    3. The law, by classing the contractor with the architect, &c., and giving a lien for work, &c., procured by him to be done on the credit of the building, intended a protection to workmen and material-men as much as if they. had acted under the orders of an agent.
    4. The purpose of the law was to prevent these claims from being defeated by a change of character in the employer from an architect, &c., to a contractor.
    5. To protect by lien workmen and material-men employed by the contractor, he must be contractor for erection.

      6. One who contracts to furnish materials is not a contractor for erection, and there is no privity between him and the owner to enable him to charge the building with a lien in favor of others from whom he purchases lumber to fill his own contract.
    7. Singerly v. Doerr, 12 P. F. Smith 9, distinguished and approved.
    November 9th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 218, to October and November Term 1869.
    This was a scire facias on a mechanics’ lien, issued February 2d 1869, by F. K. Duff and John Ewing, partners as Duff & Ewing, against M. S. Hoffman, owner, and Edward Boland, contractor. The claim was for shingles to the amount of $82, furnished by the plaintiffs for a house belonging to Hoffman.
    The plaintiffs, after showing the lien, gave evidence that Hoffman contracted with Boland, who had a planing-mill, to deliver lumber to his house, that Boland furnished all. he had and obtained the residue from other persons; amongst others he procured shingles from the plaintiffs which were charged to Boland “ for Hoffman’s housethe shingles were delivered at the house and furnished on the credit of the house. It appeared on cross-examination that Hoffman did not know where the shingles came from.
    The court (Stowe, J.) charged:—
    “ If you believe that defendant contracted with Boland for the lumber as a dealer in it, as the evidence is, and he was engaged in the planing-mill and lumber business himself, and he purchased this lumber, as he says, from plaintiffs, he had no authority, by reason of this contract, to purchase materials and bind the house of defendant; and therefore your verdict should be for defendant. The fact that the plaintiffs may have furnished the materials on the credit of the building, and thinking they could file a lien, is of no importance, and does not change the case.”
    The verdict was for the defendants. The plaintiffs took a writ of error and assigned the charge of the court for error.

      L. B. Buff, for plaintiffs in error,
    cited Witman v. Walker, 9 W. & S. 183; Act of June 16th 1836; Pamph. L. 696; Purd. 709 et seq.; Derickson v. Nagle, 2 Phil. R. 120.

      J. Says and S. A. Montooth

    cited Harlan v. Rand, 3 Casey 516.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

We agree with the learned judge of the court below, that a lumber dealer, who has engaged to furnish lumber for a house, is not such a contractor, under the Mechanic’s Lien Law, as can charge the building with a lien to another from whom he purchases his lumber. This much was said in Singerly v. Doerr, 12 P. F. Smith 9, decided at Philadelphia last winter, where, after holding that the owner of a planing-mill, who manufactured portions of the wood work of a house, could file a claim for the work he had done at his mill on the materials found by the contractor, we said: “ If the contractor for the building had bought his doors, shutters, &c., from another who had employed the plaintiffs to do the sawing and planing, &c., for him, the case would be different, and the plaintiffs, then, must have looked to the other party who employed them. This is the doctrine of Harlan v. Rand, 3 Casey 516, relied on by the plaintiffs in error.”

We also held in Singerly v. Doerr, that it is not necessary there should be but a single contractor for the whole building. We said: “ It is not an objection that Ketchum was a contractor only for the carpenter work and lumber of the house. The law does not require the contractor to be such for the whole building. The owner may make his contracts for different parts of the work— as with one for the stone work, with another for the brick work, a third for the wood work, and, if the building be a factory, with a fourth for the machinery. There is no reason why a workman, or a material-man, employed by each contractor to do work or furnish materials within the scope of his contract, should not be entitled to a lien for it, as well as if there were but one contractor for the whole building. Except in the principal cities it is rare that men contract for the whole building. Generally contracts are made with them according to their line of business, as for masonry, carpentry, &c.”

That case not being reported had not come to the eye of counsel and is not adverted to, but it is requisite we should notice it, to distinguish it from the case in hand. An architect or builder is the agent of the owner for erection, and we can readily perceive how, as agent, he should have power to subject the building to a lien to the workmen and material-men. This is not so with a contractor, who builds on his own credit. Rut as soon as the law classed him with the architect and builder, and gave a lien for the work and materials procured by him to be done and furnished on the credit of the building, it clearly intended this as a protection to the workmen and material-men, aS much as if they had acted under the order of a mere agent. The purpose was to prevent these meritorious claims from being defeated by a change of character in the employer from an architect or builder to a contractor \ a formality which might be used in every instance to defeat liens. Now if this clear legislative provision to charge the building with a lien for work and materials procured through a contractor, can be defeated by making two contracts for the building instead of one — for example one contract for the masonry and another for the carpentry — the provision in the statute is worthless, for it can always be evaded. What difference is there in principle when different men become contractors for the erection of the building in divisions ? Certainly there is none. Within the division committed to each, the owner by his contract with him for construction of that division, commits his authority to bind the building just as fully and as equitably as he could to one person for the whole erection. Hence we held in Singerly v. Doerr, that a contractor for the carpenter work and lumber of % house could subject it to a lien for the work done at his instance on the credit of the building. Such contractor, however, must be one within the contemplation of the statute, to wit: A person employed to erect or construct the building. It is the contract for erection which communicates the owner’s power to bind the building, and places the contractor alongside of the architect or builder. But there is a palpable distinction between a contract to erect and a contract to furnish towards the erection, whether it be work or material. One who contracts to put up a building, or one of its leading divisions, as its brick work or its wood work, is not a mere workman or a mere material-man. He is employed to construct or erect, and not merely to work. It is therefore very clear that a lumber dealer, employed merely to furnish lumber, whether manufactured or not, is not a contractor for the erection of the building or any division of it. He is a material-man merely, or a workman, if he works up his lumber and furnishes it made up into frames, doors, sash, &c., and is not employed to erect or put up the'building or any of its primary parts or divisions. Not having assumed the relation of contractor or builder, there is no privity between him and the owner to enable him to charge the building with a lien for the lumber he purchases of others in order to fill his own contract to furnish the lumber of the house. The court was therefore right in holding that the plaintiff acquired no lien.

Judgment affirmed.


author: SharSwood, J, —

text:
    Whigham’s Appeal.
    1. Partners have no separate title in any aliquot part of the partnership property.
    2. A partner’s interest in partnership property is an incorporeal, intangible thing, a right to an account and to his share of the balance after all the debts are paid and the equities between the partners adjusted.
    3. H., T. and A. were in partnership in a portable saw-mill; A. was the general business agent and superintendent, and the mill was in his possession. H. sold his interest to W., his son, bonü, ffde. No change was made in the possession of the mill; the business was carried on in the old firm name, and A. recognised the title of W. Held, that the rule requiring exclusive possession had no application.
    4. The possession o'f one 'tenant in common is that of all.

      November 9th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Allegheny county: In Equity: No. 176, to October and November Term 1869.
    To September Term 1868 of the Court of Common Pleas, Adam Forsythe filed a bill in equity against Andrew Taylor. The bill set out:—
    1. On and before the 19th of March 1868, Hamilton Whigham owned a two-third interest in a portable saw-mill, and Andrew Taylor the other third, which they were running together for their joint profit.
    2. The plaintiff on the 18th of August 1868, bought the interest of Whigham in the mill at sheriff’s sale on judgments obtained March 19th 1868.
    8. After receiving a bill of sale from the sheriff, the plaintiff proceeded to the mill to take possession and make arrangements for running it, but was met by the defendant Taylor and others in his employ, who resisted him and refused to recognise his right to the mill, or to the profits from running it.
    4 and 5. The defendant Taylor continues to run and use the mill and lumber furnished to it and on hand, and refuses to account to the plaintiff for the profits or to recognise his right to the mill, and if he so continues, great and irreparable damage will be done to the plaintiff.
    The prayers were that Taylor might be restrained by special injunction from using and running the mill and working up the lumber and selling any part of it, and that a receiver be appointed to take charge of the mill, &c., dispose of the same, settle the accounts, &c.: And for further relief.
    Taylor answered:—
    1. Admitting that'on the 19th of March 1868, Hamilton Whig-ham owned a two-thirds interest in the mill, but that the defendant owned but one-sixth, and Robert Taylor owned the other sixth, and they were running it for their joint profit.
    2. Taylor the defendant was informed that Hamilton Whigham sold his interest in the mill to his son, William Whigham, the other defendant, on the 1st of April 1868; William has been admitted by Taylor to be owner of the two-thirds.
    3. Taylor admitted the sheriff’s sale, but was ignorant whether any title passed to the plaintiff, but supposed that none did in consequence of the sale to William, notice of William’s ownership was given at the sheriff’s sale.
    4 and 5. Taylor admitted that he denied and continued to deny that the plaintiff had any right to the possession of the mill. By articles of copartnership of the 18th of March 1868, Taylor was to be the general business agent and superintendent; about three weeks before filing tbe bill, he had informed the plaintiff that he would pay over none of the profit to the plaintiff, or William for Hamilton’s share until the question as to who was entitled should be settled, and he desires these rights to be determined, so that he may account to the proper party as he always has been and still is willing to do; and denied there would be any danger to plaintiff by his continuing to run the mill.
    He prayed the court to compel the plaintiff and William to settle their respective rights.
    William Whigham was permitted by the court to interplead, and answered:—
    1. Admitting the first paragraph of the hill, except averring that Andrew Taylor owned one sixth, and Robert Taylor owned one sixth.
    2. He purchased Hamilton Whigham’s right on the 1st of April 1868, without any knowledge of the judgments under which it is alleged to have been sold, and does not recognise any right in the plaintiff by virtue of the sheriff’s sale.
    2. He admitted that plaintiff was ordered from the premises because he had no right there.
    4 and 5. He admitted that Taylor continued to run the mill for the owners;, denied that the plaintiff had any interest in the mill, and for that reason would not suffer irreparable damage.
    He further averred that he purchased Hamilton Whigham’s interest in the mill, &c., paying $1200 for it in good faith without fraud on his part or Hamilton’s; that he believes Hamilton paid the money received from him towards the discharge of his indebtedness; William took possession of the mill on the 1st of April 1868, in accordance with the purchase; Taylor ran the mill from that time for the benefit of the owners, of whom he (William) was one, and since that time Hamilton had nothing further to do with it, except that he was employed to work there.
    Thomas C. Lazear, Esq., was appointed master.
    He - reported that on the 18th of March, Hamilton Whigham purchased two-thirds interest in a portable saw-mill, for part of the purchase-money of which he gave to the vendors his judgment-notes, payable June Í5, on which judgments were entered on the 19th. The remainder of the interest was in Andrew Taylor and Robert Taylor in equal sixth- parts and a partnership was formed between the owners under the name of Whigham, Taylor & Co.: Andrew Taylor being appointed by the agreement of partnership “ the general agent and superintendent of the business of the mill,” and he has so continued. On the 1st of April 1868, William Whigham, a son of Hamilton, bought bond, fide his father’s interest in the mill, &c., for $1200, its full value, and paid the consideration.
    He further reported: “No formal delivery was then, or at any' subsequent time made by the father to the son, of the interest thus sold, (if, in fact, the nature of the property would admit of such a delivery); nor was there any change in the conduct of Hamilton Whigham, or in his connection with the mill, from that time until the date of the sheriff’s sale, such as would indicate to the world any change of ownership, so far as his interest was concerned,” — together with other facts hearing upon the question of change of possession and control of Hamilton’s interest in the mill. The sale of Hamilton’s interest by the sheriff was made as alleged in the bill.
    The master further reported that it was Andrew Taylor’s “ right, if not his duty under all the circumstances, to refuse to give the plaintiff possession thereof, or any participation in the profits, or business of the mill, until the respective rights or claims of the parties should be first settled.” * * *
    “ The question of law arising on those facts, respecting the validity of the sale of Hamilton Whigham’s interest in the mill to his son William, as against the sheriff’s sale of the same interest to the plaintiff, is one which the master does not undertake to pass upon, regarding it as a question for the determination of the court.”
    On the 16th of September 1869, the court decreed:—
    1. “ That by virtue of the sheriff’s sale referred to in plaintiff’s bill, Adam Forsyth became the owner, and is entitled to the possession of the two-thirds interest in the mill mentioned in said bill.
    2. “ That plaintiff’s bill be dismissed as to Andrew Taylor, upon his accounting for, and paying to plaintiff, Adam Forsyth, two-thirds of the profits of said mill, which have accrued since the date of the sheriff’s sale, viz.: August 2d 1868.
    3. “ That the claim of William Whigham, who intervened for an interest in said mill, be dismissed, and that he pay the costs of this proceeding, in that behalf incurred.”
    The defendant Whigham appealed to the Supreme Court, and assigned the decree for error.

      It. Gr. Kirkpatrick and Q. S. Kasbrouck, for the appellant.—
    No actual fraud was found by the master. The thing sold being an interest in a partnership, no actual delivery could be made: Baker’s Appeal, 9 Harris 82. The mill was in the hands of a bailee: Linton v. Butz, 7 Barr 89. The change of possession was such as the nature of the property allowed: Chase v. Ralston, 6 Casey 539. A levy cannot be made of a partner’s interest in one article of partnership property: Deal v. Bogue, 8 Harris 233.

      Penny $ Kawkins, for appellees. —
    Sale without delivery is fraudulent: Milne v. Henry, 4 Wright 352; Barr v. Reitz, 3 P. F. Smith 256; Babb v. Clemson, 10 S. & R. 419; Dewart v. Clement, 12 Wright 413; Brawn v. Keller, 7 Id. 104.
   The opinion of the court was delivered, May 5th 1870, by

SharSwood, J, —

The case of the plaintiff below is surrounded with many doubts and difficulties in the most favorable aspect of it to him. The master reported as an undisputed fact that Hamilton Whigham, Andrew Taylor, and Robert Taylor formed a copartnership, under the name and style of Whigham, Taylor & Co., for the purpose of running and carrying on .the business of a portable saw-mill — Whigham owning two-thirds, and the other two each one-sixth. The plaintif having obtained judgment against Hamilton Whigham, issued an execution under which he levied, and sold not his interest in the partnership but his interest in the mill. Partners have no separate title in any aliquot part of the partnership property. Their interest is an incorporeal— intangible thing — a right to an account, and to their share of the balance after all the partnership debts are paid and all equities between the partners adjusted. If upon an execution against one partner the sheriff should levy upon and sell his interest in a single bale of goods, it could not be maintained that his vendee would acquire his entire interest in all the assets. As the vendee of his interest in a single chattel it is not easy to see how his purchase could be made available, unless that chattel were separately to be sold and then charged with its proportion of the firm debts to the sum produced by the sale of all the other property and the collection of the outstanding' credits of the firm. The only decree which he could he entitled to would be a general account and settlement of all the concerns and business of the firm, the conversion of the assets into money — the payment of the joint debts — and the distribution of the balance according to the rights and equities of the partners — thus stepping into the shoes of the debtor partner to the extent of the interest, and no further, that he had acquired by the sale. No one has ever pretended that he thereby became a partner and entitled to an account of the profits merely from the time his title accrued. These points have not been raised and discussed either in the court below or in this court, and we give no opinion upon them. They are mentioned only to preclude any inference from silence.

Let us assume, however, that the plaintiff by his purchase of Hamilton Whigham’s title became absolute tenant in common of the chattel with the other partners. The master reports as an undisputed fact that before the date of the execution Hamilton Whigham had sold his interest to the appellant, that this sale was boná fide for a valuable consideration, and that there was no actual fraud. The ground then of the decree below could only have been legal fraud — that there was no sufficient delivery of possession accompanying and following the sale. Now this chattel was in the possession of Andrew Taylor, one of the copartners. By the express terms of the partnership he was the general business agent and superintendent of the business. He was notified of the transfer to the appellant. Whether the appellant became a partner or not is immaterial. The business continued to be carried on under the old firm name. The possession of one tenant in common is the possession of all. What delivery could the appellant have required ? The tenant in common in possession recognised his title. Had he commenced an action of replevin with no evidence of an actual ouster he must have been defeated: Morris on Replevin, 113; In Field v. -, 4 Ves. 396, in the Court of Exchequer, Chief-Baron McDonald, after laying down the general position “ that the corpus of the partnership effects is joint property ; and neither partner separately has anything in that corpus, but the interest of each is only his share of what remains after the partnership accounts are taken;” adds that the party coming' in the right of the partner comes into nothing more than an interest in the partnership, which cannot be tangible, cannot be available or he delivered, but under an account between the partnership and the partner; and it is an item in the account that-' enough must be left for the partnership debts.” This passage has been quoted with approbation by Lewis, J., in Baker’s Appeal, 9 Harris 82, citing in confirmation of it Deal v. Bogue, 8 Harris 228. If then, when the appellant gave notice to Andrew Taylor of his purchase and obtained from him an acknowledgment and recognition of his title, he had done everything which he could do and had no legal remedy to enforce any other delivery; it is clear that he ought not to lose what he had acquired by a fair purchase, and that the rule which requires that an exclusive possession should be delivered to him has no application.

Decree reversed, and now it is ordered and decreed that the bill be dismissed at the costs of the appellee.


author:
Thompson, J. —
      Agnew, J. —

text:
    Carothers versus Cummings.
    1. J. recovered judgment before a justice May 30th against 17. June 20th, 17. appealed, and entered the appeal in court September 4th. January 26th, 17. entered a non pros.: under the rules of court for want of a declaration, February 13th, J. moved to quash the appeal, which the court refused. jHeld to be error.
    2. The appeal was entered out of time, and J. had done nothing to waive the laches of W. ■

    3. If J. had done anything toward getting the case ready for trial it would have waived the laches.
    4. Some ad construable into a waiver of the irregularity was necessary to cure it.
    5. The appellant was presumed to know that he was not in time in taking the appeal.
    6. At the time of the non pros, the case was not in court so as to enable the defendant to claim a non pros. .

      7. Reversing tke order of non pros, will leave the case to go on in tke court below to trial and final judgment unless the court below should quash tke appeal, as matters not appearing on the record may exist to make the appeal good.
    November 10th 1869.
    Before Thompson, C. J., Read, Aqnew, Siiarswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 80, to October and November Term 1869.
    James Carothers brought suit before a justice of the peace against Washington Cummings and Mary Cummings, and obtained judgment on the 30th of May 1868. On the 20th of June the defendants took an appeal from the judgment, and on the 4th of September, filed the appeal in the Court of Common Pleas of Allegheny county.
    One of the rules of that court is, “ that if a declaration be not filed within three months, or if the cause be not put at issue within six months of the return day of the writ, judgment of non pros. shall be entered by the prothonotary. The same rule shall apply to appeals from judgments of justices, the time to be computed from the last day for filing the appeals.”
    On the 26th of January 1869, by direction of the attorney of the defendant, judgment of non pros. sec. reg. was entered. On the 13th of February the plaintiff obtained a rule, &c. “ to quash this appeal and strike the case from the record, because the court had no jurisdiction — no appeal having been entered within the time limited by law.” The court discharged the rule. To this order the plaintiff took a writ of error.

      J. Mellon, for plaintiff in error. —
    The appeal was out of time: Act of March 20th 1810, § 4, 5 Sm. Laws 163, Purd. 596, pi. 48; Browne v. Browne, 3 S. & R. 494; Thomas v. Premium L. Assn. 3 Phila. R. 425; Cromelien v. Brink, 5 Casey 524; Morrison v. Weaver, 4 S. & R. 190. The plaintiff did nothing to waive his right to take advantage of the defect in the appeal.

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

Thompson, J. —

This was a case which originated before a justice of the peace, and presents rather novel features here. The plaintiff obtained a judgment against the defendant before the justice for $98 on the 30th of May 1868, in the absence of the defendant, but of which he was duly notified. On the 20th of June the defendant appealed, and entered up his appeal on the 4th of September thereafter. By the well settled rule of computation of time in such eases, the appeal was not taken in time; more than 20 days having elapsed after the day on which the judgment was entered by the justice, before bail was entered and appeal taken, the appeal being entered on the records of the Common Pleas, the defendant by counsel, on the 20th day of January 1869, non prossed the plaintiff see. reg. for want of a narr. the rule of court authorizing it, if a narr. were not filed within three months after appeal filed. On the 13th of February 1869, the plaintiff moved the court to quash the appeal, as taken out in time, and consequently, not within the jurisdiction of the court. This the court refused, and this writ of error is taken to the judgment of non pros, entered finder the rule.

If the plaintiff had done anything in the case after the entry of the appeal, towards getting it ready for trial, we have no doubt this would have waived the laches in taking the appeal: Sleck v. King, 3 Barr 211; Marks v. Sweringen, Id. 454; Hoffman v. Dawson, 1 Jones 280; and after that the defendant might have claimed a non pros, for want of a narr. But the plaintiff did nothing — not even appearing by attorney; in point of fact, may not have known of the appeal, although there might possibly arise a presumption to the contrary. But this is not enough under the ruling referred to; some act construable into a waiver of the irregularity was necessary in order to cúre it. There was nothing of this.

The appellant was bound to know the time allowed for an appeal, and he must be presumed to have known he was not in time in taking it. The case, as it stood at the time of the non pros, entered, was not in court, so as to enable him to claim a judgment of non pros, against the plaintiff. Had the defendant taken a rule to show cause, or in some other way given him legal notice of an intention to move as he did, and the plaintiff had met him on the rule, and had not claimed to quash the appeal, he might possibly have been in a position to take all legal advantages of a party regularly in court; but without something of this kind, or some act of waiver on part of the plaintiff, such as has been suggested, we think his judgment of non pros, was not valid, and we think it should be reversed. This will leave the case in court, and, unless the court shall reconsider it, its decision on the motion to quash the case must go on to trial and to final judgment, when the failure to quash can be taken advantage of there. We do not mean to decide that the appeal is not good — matters of which we have no knowledge may possibly exist to render it good. — We speak only by. the record; as that stands, the case was not in a situation to authorize the defendant to enter the non pros. according to rule as was done.

The judgment of non pros, is reversed and ordered to be stricken off, and the case to stand to be proceeded in as if no such entry had been made.

Agnew, J. —

This case was referred to me for a re-examination. I think the opinion of the Chief Justice is right. The appeal being out of time, the' plaintiff was not brought into court legally. He did not come in voluntarily so as to waive the defect in the defendant’s appeal. Not being in court by any act of his own or of law, the defendant could not proceed against him until he had established his right to appeal by a rule granted by the court to allow the appeal for some good reason, though apparently out of time. The defendant, therefore, without a direct proceeding to call the plaintiff into court, could not proceed under the general rule of the court, made to non pros, a party regularly in court for want of a narr. The non pros, was consequently irregular, and must be reversed.


author: Per Curiam. —

text:
    Carr versus Townsend's Executors.
    1. A judgment in favor of or against a dead man is not a nullity.
    2. In a scire facias on a judgment, the defendant cannot go behind the original judgment.
    3. A judgment was entered in favor of C., he at the time being dead: the record imported that he was living, and to allow the contrary to he shown would have impugned the record.
    November 10th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 105, to October and November Term 1869.
    This was a scire facias sur judgment issued to April Term 1862, by Owen S. Coffin and Cornelia Townsend, executors, &c., of Cyrus Townsend, deceased, against Robert Carr.
    The original judgment was entered March 6th 1862, in the name of Cyrus Townsend against Robert Carr. The defendant pleaded payment with leave, &c.
    On the trial the defendant gave evidence that at the time of the entry of the original judgment, Cyrus Townsend the plaintiff was dead. They submitted two points, viz.:—
    1. The judgment, entered in the name of a dead man, cannot be revived, but the remedy of the executors of C. Townsend is by an action of debt on the bond.
    2. That a judgment entered in the name of a dead man is a nullity.
    The court (Kirkpatrick, J.) refused these points and charged: ■ — “ We instruct you, as a matter of law, that under all the evidence submitted in this case, the plaintiffs are entitled to recover. The amount you will discover from the testimony submitted.”
    The verdict was for the plaintiffs for $729.
    On the removal the case to the Supreme Court, the defendants assigned the instructions of the court for error.

      JR. é? S. Woods, for plaintiff in error.

      JMJ. W. Aeheson, for defendants in error,
    cited: Lewis v. Morgan, 11 S. & R. 234; Abbott v. Lyon, 4 W. & S. 38; Warder v. Tainter, 4 Watts 270; Coleman v. McAnulty, 16 Missouri 177; Yaple v. Titus, 5 Wright 195.
   The opinion was delivered November 22d 1869.

Per Curiam. —

No authority has been shown for the position taken in this case, that judgment taken or entered in favor of a deceased party is a nullity. Even a judgment against a deceased party is not so: 4 Watts 270; 5 Wright 195; 16 Missouri Reports 177; here judgment was entered against the defendant, on his warrant of attorney, in favor of the obligee, Cyrus Townsend, as if in full life. Several years after this, the executors of Townsend issued a scire facias to revive this judgment, and had it served on the defendant. He appeared and pleaded to the scire facias payment with leave, &c., and under this plea, claimed to show that the judgment had been entered in the name of a dead man. This was an attempt to go behind the judgment. This he could not do, as all the cases show. In fact, to have allowed it, would have been to impugn the record, which imported that the judgment was in favor of a living party. If he had any remedy to reverse the entry of the judgment, it was not this, and so the court properly ruled. In this view of the case, the other assignments of error are immaterial.

Judgment affirmed.


author: Siiarswood, J. —

text:
    McClintock et al. versus Rush.
    1. It is not necessary that the description in a mechanic’s lien should be either full or precise: certainty to a common intent is the rule.
    2. If there be enough in the description of the situation and other peculiarities of the building to identify it, the statute is satisfied.
    3. The act contemplated that claimants should prepare their own papers, and unless the claim be totally defective in giving information to those making searches for encumbrances, such as will direct them to the right place, the question is for the jury on the scire facias.
    4. The court cannot take cognisance of the circumstances of the neighborhood, this is necessary to decide such a question.
    5. The date of a bill for materials “ furnished within six months” was December 3d 1868, the time of filing: in the margin to the first item was June 9th, without any year; there was no date to any other item. Held, that this implied that all the materials were furnished June 9th 1868.
    November 11th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 109, to October and November Term 1869.

      On the 3d of December 1868, Washington McClintock and A. J. Cochran filed a claim to secure a lien for materials “ furnished within six months” against a building of which David Rush was the owner.
    The claim as filed was “ against the following described building, and so much of the ground covered by the same and immediately adjacent thereto, and belonging to the owner of the building, as may be necessary for the ordinary and useful purposes of said building, being a two-story frame house on Harrison street, 13th ward, Pittsburg, near Harrison’s stone quarry, and fronting on Harrison street sixteen feet, and running back eighteen feet.” After stating other requisite particulars, it contained the following;
    “ 6. And said claimant hereto annexes a bill of particulars, showing the particular items, amounts and dates when said materials were furnished, and work and labor done, which bill of particulars is made part of this claim.
    “ 7. The following description shows where the building is located, kind of building, number of stories, size of the building (width and length), and the lot of ground (as nearly described as may be), on which said building is erected, viz.: one two-story frame house on Plarrison street, in the 13th ward, city of Pitts-burg, above Captain Bunion’s, near Harrison’s stone quarry, fronting on Harrison street, and running back, preserving the same width, eighteen feet.”
    “ BILL OR PARTICULARS.
    Pittsburg, December 1st 1868.
    Mr. David Rush,
    Bought of McClintock & Cochran.
    June 9. 7 pieces pine, 24 feet,” &c.
    A number of other items followed, directly under the above, but without any other date. The whole amount of the claim was $107.52.
    The property was afterwards sold under an execution out of the District Court. The proceeds of sale being in that court for distribution, Thomas Biggerstaff, a lien-creditor subsequent to McClintock & Cochran, came into the Court of Common Pleas and obtained a rule to show cause why the mechanics’ lien should not be stricken off, because “ the claim, as filed, is irregular and defective, n and does not sufficiently describe any property or lot on which the alleged building is situate.” The court made the rule absolute and struck off the lien. To this order the plaintiffs took a writ of error.

      Howard ft Shafer, for plaintiffs in error. —
    The description was sufficient: Wigton’s Appeal, 4 Casey 161; 2 Troubat & H. Pr. 434, 435; Springer v. Keyser, 6 Whart. 187; Shaffer v. Hull, 3 Penna. L. J. 321; Nelson v. Campbell, 4 Casey 156; Pretz’s Appeal, 11 Id. 349; Kennedy v. House, 5 Wright 39.

      T. Hiving, for defendant in error. —
    The description is too indefinite : Washburn v. Russell, 1 Barr 499. The claim does not state the year in which the materials were furnished: Renter v. Hill, 3 Phila. Rep. 110; Ellice v. Paul, 2 Id. 102; Witman v. Walker, 9 W. & S. 186.
   The opinion of the court was delivered, January 3d 1870, by

Siiarswood, J. —

The first ground of objection to the claim filed in the court below is that it does not sufficiently describe “ the locality of the building,” as required by the twelfth section of the Act of June 16th 1836, Pamph. L. 698. It is not necessary that the description should be either full or precise. Certainty to a common intent is the rule. If there is enough in the description of the situation and other peculiarities of the building to identify it, the provision of the statute is satisfied. The claim in this case is quite as certain in this respect as any of those which were sustained in Harker v. Conrad, 12 S. & R. 301; Springer v. Keyser, 6 Whart. 187; Shaw v. Barnes, 5 Barr 18; Knabb’s Appeal, 10 Barr 187, and Kennedy v. House, 5 Wright 39. There is a great reluctance to set aside a mechanic’s claim merely for loose description. The act evidently contemplated that the claimants should prepare their own papers, and unless ££ the claim or statement of demand,” as it is termed, is totally defective in giving information to purchasers and others making search for encumbrances, such as will direct them to the right place, the question as one of fact will be referred to the decision of the jury on the trial of the scire facias. The court cannot take judicial cognisance of the circumstances of the neighborhood, which is absolutely necessary to enable them to decide such a question: Kennedy v. House, 5 Wright 39.

Nor is the ground of the second objection that the time of furnishing the materials is not sufficiently set out, sustained. The time in the bill of particulars is not merely the date of the bill, as was the .case in Witman v. Walker, 9 W. & S. 183. Besides that, there is ££ June 9” written in the margin opposite the items. It is true that the year is omitted, which was held to be a fatal defect in Rehrer v. Zeigler, 3 W. & S. 258. But it does not appear by the report of that decision that it was averred in the body of the claim, as it is in this case, that the lumber was furnished within six months past. Reckoning backwards, from December 3d 1868, when the claim was filed, that clearly ascertains the date of furnishing the materials in the bill to be June 9th 1868. All that is required is such certainty as will enable those interested to discover during what period the materials were delivered or the work done so as to individuate the transaction: Calhoun v. Mahon, 2 Harris 56. “ It has been more than once said we must not be hypercritical when scanning this species of lien and estimating its sufficiency:” Per Bell, J.

Judgment reversed, and procedendo awarded.


text:
    Lynch versus Brudie.
    1. If the owner of land sold for taxes during his minority,redeem, within ten years after arrival at age, under the 4th section of Act of March 13th 1815 (Unseated Land), he must pay the purchaser the value of improvements.
    2. Where land sold for taxes is recovered by the owner because it was seated at the time of sale, under the Act of April 12th 1842 (Unseated Land), he must pay for the improvements, unless the purchaser knew when 'they were made that the land was seated.
    November 11th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood, and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. Ill, to October and November Term 1869.
    This was an action of ejectment brought, July 20th 1867, by Francis M. Lynch against Margaret Brudie for a lot of ground on Pike street, in Allegheny city. The plaintiff claimed as devisee of Francis Messer; the defendant’s title was derived from a purchaser of the lot at a treasurer’s sale for taxes as unseated, June 13th 1854.
    On the trial before Mellon, J., the plaintiff gave in evidence a deed dated January 13th 1843, from Michael Elmsley to Francis Messer for the lot in dispute. They also gave in evidence the will of Messer dated August 4th 1843. Messer died in October of the same year. The will was not given in the paper-books, but it appeared to be assumed by all, that by it the lot was devised to the plaintiff. Peter Mayor testified that in 1848 he went on the lot to collect rent as administrator of the widow of Messer; there was then an occupied house on the lot; the occupant said he was not able to pay rent but would pay the taxes; the plaintiff was born June 9th 1842. William Lynch testified that shortly after the tax sale, the guardian of the plaintiff and himself went together to look for the lot, they found a dwelling-house fronting on the street and an unoccupied house on the back of the lot. In 1865 witness called on the defendant who then lived on the lot; there was then a double house on it; the defendant claimed the lot as hers.
    The defendant then gave in evidence assessments of taxes in 1852 and 1853 on the lot as on Pike street, in the name of Messer as a non-resident, and a sale by the treasurer for taxes, June 13th 1854, to Casper Gang and George Gerst for $350; deed from Gang and Gerst to William Adams, June 18th. 1856, the consideration of which was $550; deed from Adams to defendant, September 4th 1856, consideration $550. The defendant further proved that about 1848 or 1850 there was an old shanty on the lot which was torn down in 1851, leaving only one of its posts; in 1852 it was not occupied in any way, no fence around it nor anything by which it could be occupied; it was assessed as vacant, $550 was the full value of the lot at the tax sale, Gang put up a fence in 1856 ; the house and lot would sell for $4,050 ; the house would now cost about $2300, would cost $1500 when it was built.
    The plaintiff in rebuttal proved that in May 1865 his attorney tendered to the treasurer the amount necessary to redeem the lot, and that it was refused.
    The plaintiff asked the court to charge:—
    1. That property being once seated, it cannot be sold after as unseated, as in this case: there being a dwelling-house on it at one time, it cannot become unseated or vacant so as to be sold under the law for taxes..
    2. That the lot in question was not an unseated or vacant lot at the time of the tax sale produced by the defendant, such as could be legally sold for taxes.
    The court charged:—

      “ There is perhaps no branch of our law more difficult to define with certainty than that relating to tax sales; and as regards the present case, it will be better understood and equally serve the purpose, to give you general instructions, than to answer specially each particular proposition presented by the learned gentlemen on either side. The plaintiff has shown what we call a primfi facie title — that is, a title which will entitle him to your verdict if the defendant has shown nothing to prevent it. Because, if Francis Messer or Mercier, the plaintiff’s ancestor, was in possession, by himself or his tenants, under the sale and other deeds in evidence, he would have a right to recover against a new intruder.” * * *
    “ You may determine whether or not he tendered to the treasurer or his deputy, the taxes, costs and percentage, in order to redeem within the time after his coming of age, as required by law; if he did, or his attorney did it- for him, there is no need of further inquiry, that would leave the defendant no standing room. The plaintiff would be entitled to recover unconditionally, as the effect of such a redemption, if in time and of sufficient amount, would annul the tax sale althogether. * * *
    “ But the second question in the case is, whether the lot, at the date of the assessment and tax sale on the assessment book or tax duplicate, is marked vacant. We have not and never had, I believe, any other assessment book or separate lists of seated and unseated lands in this county, than is shown by the duplicates on which the assessments are marked. On the duplicate, this lot was marked vacant and the owner a non-resident. But as regards tax sales there is a wide distinction between the meaning of the words vacant and unseated. They arp by no means convertible terms. A lot may be entirely vacant and not unseated; and in this county and at the date of this sale, there was another and different remedy or mode of procedure provided for the collection of taxes from property which was not unseated, but only vacant. The word unseated is not, in its technical meaning, very easily applicable to city property, and the Supreme Court has nearly excluded its application to such property altogether. A city or town lot such as this can only be regarded as unseated, and subject as such to sale, when the owner has abandoned it without the intention of reclaiming it. It is not a suspension of occupancy or possession, but a total abandonment of the property, that is meant by the term unseated. The term originated in the practice among early settlers of taking up a tract, building a cabin and occupying it a few years till they saw something elsewhere that pleased them better, then getting up and leaving. Lands so abandoned became unseated, and the term still retains its original meaning. * * * Taking the word unseated in this sense, you will perhaps find it difficult to say that this lot was unseated when assessed for the taxes for which it was sold. If Messer’s lot had a shanty on it, and by himself of tenants was occupying it, it was seated when so occupied. Messer left it and. moved to another part of the country. His tenant also left it, and finally the shanty disappeared; the last seen of it was a post standing in 1851, according to the witness Gang. But had Messer abandoned it, intending to relinquish ownership in it, or was it a mere suspension of possession, leaving it unoccupied until it suited his convenience to do otherwise with it, as hundreds of lots are left in large cities, on which the respective owners still set great value ? If this lot was unseated, according to the sense in which I have explained the term, and plaintiff did not redeem, your verdict should be for the defendant. But if it was seated and merely vacant, then your verdict should be for the plaintiff; and this raises the question whether in case you find for the plaintiff, the verdict should be absolute or conditional on payment of defendant’s improvements. [I instruct you, that the value of defendant’s improvements may be assessed and the time specified for their payment.] If any case justifies such finding when seated property has been sold, it is this. The plaintiff, or those under whom he claims, stood by until the property passed out of the hands of the original purchasers, and the vendee had put valuable improvements on it. I incline to think that principles of general equity would compel him to make compensation under the circumstances, even without the aid of the Act of Assembly. [If you find for the plaintiff, therefore, you will value or assess the value of the improvements made by tbe defendant, and designate tbe time within which plaintiff must pay the amount, in order to entitle him to possession.] In doing this deal as fairly as possible between these parties. A good deal is said about values enhanced by change of times, hut this applies as well to the lot as the improvements, so that the relative value between them may still be observed. In accordance with the foregoing view, the points of law presented by the learned counsel on either side may be regarded as affirmed or denied.”
    The verdict was for the plaintiff, and “ that he pay to defendant the sum of 2566 dollars for improvements, payable in nine months from date.”
    The plaintiff took out a writ of error and assigned for error the refusal of the court to affirm his points; the parts of the charge in brackets, and “ in not charging the jury from the evidence that the lot had been seated, and that it did not come under the law or operation of the law regulating unseated land in any way.”

      J. It. Large, for plaintiff in error. —
    The verdict should have been unconditional, because the property did not come under the operation of the laws relating to unseated land; the acts relating to compensation do not apply to this case. He referred to Act of April 12th 1842, § 20, Pamph. L. 265, Purd. 997, pi. 45.

      S. P. Mueller and T. Lhoing, for defendant in error,
    referred to Act of 1842, supra; McKee v. Lamberton, 2 W. & S. 107; Larimer v. McCall, 4 Id. 133; Lambertson v. Hogan, 2 Barr 22; Stewart v. Trevor, 6 P. F. Smith 374.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

The plaintiff in error has no reason to complain on account of the matters contained in his 1st and 2d assignments of error. The learned judge went as far with the plaintiff below on the points submitted by his counsel as to what constituted a town lot seated and so to be regarded, and not liable to be sold for taxes as the law, at the utmost stretch, would allow, and, in my judgment, a good deal further; this is not now before us, however, and he recovered, subject to pay the assessed value of improvements to the defendant; and the instructions sanctioning' this constitute the 3d and 4th assignments of error.

This was right by positive law, on either of the grounds on which he claimed to recover. If on a redemption by the plaintiff within two years after coming of age, the lot having been sold in his minority, the 4th section of the Act of 1815 gives the defendant the value of improvements made. And if the recovery was to be upon the ground that the lot was seated when assessed with the taxes for which it was sold, the defendant was entitled to the value of improvements by the Act of the 12th of April 1842, unless they were made with a knowledge that the lot was seated. There was no pretence of this. All the facts and proof about the lot would lehd to an opposite conclusion.

The 5th assignment may be dismissed with the remark, that the ■judge was not requested to charge as therein claimed that he ought to have charged, viz.: that the lot was seated and not subject to a sale for taxes. Whether it was or not, was for the jury to say, and he would have committed an error if he had so charged. He was not bound so to charge, not being requested to do so.

Judgment affirmed.