text:
    Billings and May versus Russell.
    1. The principle, that the regularity of a judgment of a Court having jurisdiction of the subject-matter, cannot be inquired into in a collateral proceeding, is applicable to judgments by justices of the peace.
    2. Though the affidavit and bond, required from the plaintiff by the 27th section of the Act of 12th July, 1842, to abolish imprisonment for debt, before attachment issued, be defective, no one but the defendant has a right to complain ; and he only by certiorari.

    3. The plaintiff in the attachment proceeding and the constable who executed the process were not liable to an action of trespass by a stranger to the proceeding who alleged title to the property attached, merely because the affidavit and bond submitted in the proceeding were defective; they were protected by the judgment. The constable was bound to execute the writ regular on its face.
    Error to the Common. Pleas of Tioga county.

    This was an action of trespass by Franklin Russell v. Billings and May, to recover the value of a horse claimed by the plaintiff, which had been levied on and sold under process issued in a proceeding before a justice of the peace by Billings v. Albert Russell.
    The plea was not guilty. It appeared that Albert Russell being indebted to Billings in the sum of $97, the latter applied to a justice of the peace for an attachment against Russell, under the 27th section of the Act of 12th July, 1842, abolishing imprisonment for debt. It is provided in that section that when upon proof by the affidavit of the plaintiff or some other person, to the satisfaction of a justice of the peace, that the debtor is about to remove from the country any of his property with intent to defraud his creditors, or has assigned or disposed of any of his property with a like fraudulent intent, &c., the justice may issue an attachment against the debtor; which attachment, by the 28th section of the Act, may be executed upon property of the defendant not exempt from sale on execution. Bond with sureties is required to be given before the attachment issues.
    An affidavit was made by Billings, and a bond was executed by him and Samuel May, Jr., conditioned for payment to the debtor of damages in case of failure to recover, &c. The bond was in the penalty of $100. The justice issued an attachment, on which the constable returned that he had attached “ one mouse-colored mare,” and certain hay. On 4th December, 1851, the return day of the attachment, loth parties appeared, and agreed to the continuance of the case till the next day, when judgment was given for the plaintiff for $97. Under this judgment an execution was issued to Samuel May, Jr., one of the defendants, who was constable, and under it the mare was sold to Billings for $80.
    On 18th December, 1851, this action of trespass was brought, the plaintiff claiming that the mare when attached and sold belonged to him and not to Albert Russell.
    After testimony as to the ownership of the mare, the record of the attachment was given in evidence on part of the defendants; and evidence was given with the view to show that the mare belonged to Albert Russell.
    White, President Judge, charged “that the affidavit before the justice was defective in not setting out all that the Act of 1842 required it to contain; and that the bond was also defective because its penalty was not double the amount of the plaintiff’s claim. He charged that these defects were substantial and fatal to the judgment, preventing the justice from exercising jurisdiction and rendering his judgment void — that the defendants could not justify under the execution, and that the plaintiff was entitled to r¿cover.”
    Yerdict was rendered for the plaintiff.
    Error was assigned to the charge as stated, and to the instruction that the judgment before the justice could be attacked in this collateral proceeding.

      Gone, for plaintiff in error.
    It was, inter alia, contended that any defect in the proceeding before the justice was cured by the defendants’ appearance: 2 Comstock 110; 4 Barr 296.
    The judgment was not void, and the justice had jurisdiction. A stranger to such proceedings had no right to object to them collaterally.
    Irregularity in the affidavit and bond should have been taken advantage of by motion to quash the attachment: 1 Morris 54. An attachment, if sufficient on its face, is a justification to the officer serving it, although it issued on an insufficient affidavit: 24
      Wendell 485; 2 Lutw. 935; 5 Wend. 170; 4 W. & Ser. 191; 10 Watts 101. Creditors and terre tenants may attack a judgment collaterally for fraud or collusion, but on no other ground: 9 Barr 89; 4 Harris 21; 7 Barr 257. They may avoid a fraudulent judgment for a pretended debt, but cannot abate an erroneous judgment for a real debt: 5 W. & Ser. 473; 1 Troubat & Haly 569. A judgment of - a court of competent jurisdiction is never to be treated as a nullity. The only question was that of ownership, which should have been submitted to the jury.

      Byan and Jessup, for defendant in error.
    Proceedings under the Act of 1842 are in derogation of the common law, and are to be strictly pursued: 10 Watts 121. The affidavit should state with precision the cause for issuing it: 1 Miles 75; 3 Watts 144. There should have been two sureties in the bond: 4 Rawle 382. The affidavit did not recite the matters required by the statute, nor did the bond, and they were nullities: 3 Cowen 206. The proceeding was void, and was examinable in a collateral proceeding: 1 Harris 128. The jurisdiction of the justices being of a limited character, the facts which confer jurisdiction should appear on the record, or the proceeding is void: 10 Watts 118; 1 Peters 36; and the question of jurisdiction may be examined into in a collateral proceeding: 3 Cranch 331; 9 Wheaton 549; 13 Johnson 444; 5 Hill 285; 14 Mass. 461; 11 Pick. 441; 16 Vermont 246; 24 Maine 186; 10 Conn. 526; 1 Smith’s Cases 703-710; 8 Howard 497; 5 Barr 428; 7 Id. 48, 136. A sale of property on a void judgment passes no title: 10 Watts 118.
   The opinion of the Court was delivered by

Black, C. J.

This was trespass for taking the plaintiff’s horse on an execution against another person. Evidence was given to support and to contradict the allegation that the horse had been sold by the present plaintiff to the defendant in the execution. But the Court took all the evidence on that point away from the jury, and directed a verdict in favor of the plaintiff, on the solo ground that the execution was void. It was issued by a justice of the peace upon a judgment in attachment under the act of 1842. The affidavit was irregular, and so was the bond; and although the plaintiff appeared at the return day of the attachment and made no objection, the Court held that the judgment and execution gave no title to property sold under them.

It is a rule, to wffiich there is no exception, that when a judgment is given by a court or judge having jurisdiction of the subject-matter, its regularity connot be inquired into in a collateral proceeding. If the justice was wrong in issuing this attachment, and if the defendant did not wraive the error by appearing, still nobody but the defendant himself had a right to complain of it, and even he could get redress only by certiorari. His acquiescence in the judgment, without taking any steps to reverse it, made it as good and valid as if all the pre-requisites of the law had been complied with. A ministerial officer may not be sued as a trespasser, for simply obeying the command of a writ, regular on the face of it. And even where the action is against the plaintiff, he is protected by the judgment itself, without proving that he obtained it legally. It would be impossible to administer the law at all upon any principle which would permit a title to property acquired under a judgment and execution to be defeated by showing a defect in the original process. It is said that this proceeding is in derogation of the common law. So is the whole civil jurisdiction of justices and aldermen. But still their judgments are conclusive, however erroneous, until set aside. There is no difference in this respect between a tribunal created by statute and a common law court. A sentence, judgment, or decree pronounced by either upon a subject within its jurisdiction is definitive and binding on all other courts, excepting only those before w'hom it comes by appeal or writ of error.

The same question was before this Court in Burford v. Cassedy, decided at September Term, 1848, for the Western District. A justice granted an attachment and gave judgment, without taking a legal bond. When an execution came to be issued, the constable presumed to disobey it, and gave the mistake of the justice as one of his reasons. Yfhen he made this defence on the scire facias against him, the Court told him what we now repeat to the present plaintiff, that he had no authority to erect himself into a court of errors and pick flaws in the justice’s record. The judgment was a matter which concerned not him, but another person who hád seen fit (perhaps for very good reasons) to acquiesce in it. If that case had been reported, the present one would never have come here.

Judgment reversed and ven. fa. de nov. awarded.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Young versus Kimball.
    1. If property be forcibly or clandestinely taken from the possession of one having a lien upon it, he may reclaim it as his property in any proper form, and replevin is such a form.
    2. Livery-stable keepers, under the Act of 7th April, 1807, have a lien upon every horse delivered to them to be kept in their stable “for the expense of the keeping.”
    3. The right of lien for the keeping of several horses, composing two separate teams belonging to the same person, is a charge against the owner, secured by a lien upon all the horses, is joint and several, and one horse may be detained for the keeping of all of them.
    4. Two teams of horses belonging to a mail contractor were kept at the stable of the plaintiff; one was removed, and the plaintiff detained the other for the keeping of both. Held, that he had a right to do so.
    5. The circumstance that the horses were under the care of their driver, who used them from time to time in the course of his employment as the business required, was not inconsistent with the right of lien and did not impair it.
    Error to the Common Pleas of Tioga county.

    This was an action of replevin, by James Kimball v. John G. Young, for a span of sorrel horses. Kimball was an innkeeper, in Wellsboro’, Tioga county. Young, the defendant in the replevin, was a contractor for carrying the mail twice a week between Wellsboro’ and Coudersport in Potter county. He sub-let the contract to Cornelius Culp. Culp testified that lie made an arrangement with Kimball to board him, and give him barn-room for horses, grain and hay, at a stipulated sum per week. He took care of the team himself. In part he found his own hay and oats. Had no contract with Kimball for the feed he bought of him. The arrangement was made with Kimball about the 1st of July, 1848. The two teams and driver of Culp were kept in part at Kimball’s until about the middle of December next following, when both of the teams were sold under execution against Culp, one, a sorrel team, being sold in Coudersport on the 16th December, and the other, a black team, was sold in Wellsboro’ on the 20th December. One of the teams usually ran on the east end of the route; and the other, the sorrel team, the one in controversy, usually ran on the west end of the route. Sometimes they were changed.
    After the sale of the sorrel team, Young, the contractor, made a conditional purchase of it, so as to secure the use of it to carry the mail to Wellsboro’, and he hired Culp or his son, as driver. This team was continued on the road, and was occasionally kept at Kimball’s, as before, Culp sometimes procuring feed from Kim-ball, and sometimes procuring it elsewhere.
    About 1st of February, 1849, the sorrel team being put into Kimball’s stable, he refused to suffer it to be taken away until his bill for the keeping of both of the teams, and for the boarding of the drivers, commencing about the 1st of July, 1848, and amounting to about $87.50, was paid. It was stated that, at the request of Young, an offer was made to pay for the keeping of the sorrel horses. On the 4th of February the horses were removed from Kim-ball’s stable by Young, and put into another stable in Wellsboro’; and on the next day the writ of replevin was issued. The horses were subsequently sold under the provisions of the Act of 1807.
    The defendant’s counsel requested the Court to charge the jury:
    1st. That the plaintiff had no lien, because .the horses were not in his keeping, nor taken care of by him, but by Culp, in the premises occupied by him under special contract.
    2d. That all liens for previous keeping were dissolved by plaintiff’s voluntarily parting with the possession from time to time.
    3d. That all prior liens were divested by the sheriff’s sale.
    4th. That the innkeeper’s lien is specific, not general, and cannot be transferred from one horse to another, or made available to secure a balance of general account.
    5th. That if the jury believe a tender was made and refused, for the amount of the bill chargeable to these horses, that would dissolve the lien, if any existed.
    All of which points, except the third, were answered in the negative.
    It was assigned for error, — 1. That the Court erred in their answer to defendant’s first, second, fourth, and fifth points. 2. In charging that the proper and reasonable charges of the plaintiff for keeping this, as also the other teams employed in running this route after December 16,1848, as well as his reasonable charges for the board of the drivers from the same time, were a lien on these horses, and that the plaintiff might lawfully retain them for the payment of such reasonable charges. 3. In charging, that if the jury believe the horses were taken from the stable of plaintiff by the defendant, or through his procurement, without the knowledge or consent of the plaintiff, and under circumstances amounting in fact to a trespass, in such case the lien of the plaintiff as between the parties to this suit would follow and adhere to the horses — the plaintiff would have such a qualified property in them, and right of possession, as would in law enable him to sustain this action of replevin.

      Qone and Johnson, for plaintiff in error.
    The horses were not, in the language of the common law, “committed to an innkeeper nor in the language of the Act of Assembly, “ delivered to him to be kept in his stables.” The horse may be detained by an innkeeper for feed, but not for the feed of the driver: Bacon’s Ab. “Inns,” &c. If a horse be once parted with, the innkeeper cannot, on his coming in again, detain him for what was due before: 1 Strange 557, Jones v. Pearle; 2 Esp. N. P. 195; 8 Mod. 172; 3 Hill 488—492; 10 Petersdorf 430-1.

      Williston, for defendant in error.
    Culp was not a tenant of the stable. It was contended that the lien of an innkeeper existed as well for the boarding and lodging of the traveller as for the feed of his horse.
   The opinion of the Court was delivered by

Lowrie, J.

It is not disputed that there was money due to Kimball, the plaintiff below, for the keeping of these horses; and if that fact gave him a lien upon them, it is immaterial what the Court said about the board of the driver, for any amount of lien would justify their detention.

His right to reclaim them, when forcibly or clandestinely taken from his custody, depended upon his right to detain them as against the taker, and replevin is a proper remedy in such a case.

The right of lien for the keeping of several horses of the same person at the same time is a charge; not against the horses, and therefore several and divided; but against the owner, secured by a lien upon all the horses, and therefore joint and several, and one horse may be detained for the keeping of all.

These principles dispose of all the points raised in the trial except one — Was there a right of lien 1

The defendant was a mail carrier, and the plaintiff’s inn was the place where he changed horses; so that the bill included charges for stable-room and supplies for two teams, and each of them was away from the plaintiff’s stable twice a week. It is supposed that the plaintiff lost all his right to lien for previous charges every time that he allowed the horses to be taken away from his stable. Is it so ?

Our Act of Assembly gives a lien to both innkeepers and livery-stable keepers for the expense of keeping horses: and it may be possible that this was not intended to change the' common law right of innkeepers as such, and that, at common law, a lien would not, under these circumstances, be sustained. But it was not at all as innkeeper that the plaintiff became entitled to assert this claim against the defendant, but as livery-stable keeper; for it was under an arrangement totally different from that which tabes place in the entertainment of strangers and travellers. It was a necessary part of that arrangement that the horses should be delivered to the defendant as they were needed, and this is part of the ordinary course of business of livery-stable keepers, and therefore must be consistent with the right of lien that belongs to the occupation.

We see no evidence that the defendant hired any part of the plaintiff’s stable, or had any other control of the horses than is common where the owner of horses at livery has his own driver to attend to them. This circumstance does not affect the right of lien.

Judgment affirmed.


author: Woodward, J.

text:
    Beach versus Parmeter.
    1. The principle that a footman or horseman cannot compel a teamster who has a heavy load to turn out of the beaten track of the road, if there be sufficient room for the former to pass, is applicable to the case of a light wagon or carriage with a heavy draught.
    2. The accident which will excuse the party who committed an injury is inevitable accident, such as human foresight could not have prevented, or an accident occasioned by the concurring negligence of both parties. But where an injury arises from the negligence of one party exclusively, he will not be free from liability by reason of the injury being accidental.
    Error to the Common Pleas of Tioga county.

    This was an appeal from the judgment of a justice of the peace, in an action by Isaac Beach v. Peter Parmeter and two others, for an injury done to his mare, in 1849, whilst passing on the public highway. The plaintiff had sent his son on an errand, and whilst riding on the mare he met the defendants in a buggy. The defendants continued in the road, and, whilst passing, the leg of the animal was struck and injured. It was said that the body of the mare, except the leg which was struck, was outside of the wagon track, on the foot path; and it was alleged that the defendants could have turned aside sufficiently to have avoided a collision. The mare was turned out on the side which was usual, and a log lay within eighteen inches of the wagon track on the side to which the mare was turned.
    White, President J., inter alia, charged “that a footman or equestrian has a right of way as well as the driver of a carriage or lumber wagon. The enjoyment of this right is regulated by reason. A footman or horseman cannot compel a teamster, who has a heavy draught, to leave the smooth beaten track of the road, if there is sufficient room to pass on either side. And where a road is narrow, or there is difficulty in passing, and it becomes impracticable or dangerous for the teamster to give part of the way, and the horseman ean pass by riding out of the road, it is his duty to do so. If he refuses, and a collision ensues which occasions injury to his horse, it is attributable to his own negligence or obstinacy, and he is without remedy. So if the collision is entirely accidental, resulting from the vicious conduct of the animal which he rides, whether induced by fright or any other cause.” Ho further observed, that if the injury was “the result of accident” no blame could attach to the defendants, and they could not be held liable “ to pay damages for an act whieh was not caused by them.”
    Verdict was rendered for the defendants.
    The portions of the charge referred to were assigned as error.

      Gone, for plaintiff in error.
    The direction was calculated to mislead the jury by referring to the case of a road wagon with a heavy load, whereas the vehicle in question was a small wagon. The defendants were guilty of carelessness in running against the plaintiff’s horse whilst the rider was endeavoring to get out of the road. The defendants might have stopped or turned out: 4 Dana 497, Payne v. Smith.
    In the part of the charge last referred to, the Court assumed that the collision was not caused by the defendants. In the case of Payne v. Smith the collision was accidental, though resulting from the defendants’ carelessness. Though a person is not liable criminally for an injury caused by accident, unless at the time he was acting unlawfully, yet he may be liable in a civil action.
   The opinion of the Court was delivered by

Woodward, J.

It is not denied that the Court stated the law of the road correctly in regard to a teamster with a heavy draught; but as the defendants were driving a buggy, it is supposed this allusion to a teamster was calculated to mislead the jury. We think not. The illustration was fairly put, and it was not inapplicable to a buggy laden with three men and drawn by a single horse. In regard to such a buggy, no less than in reference to a teamster with heavy draught, the law unquestionably is that a footman or a horseman has no right to force it out of the beaten track of the road if there b.e sufficient room to pass on either side. And where a road is narrow, and there is difficulty in passing, if the horseman can turn out without danger to himself or beast, and the buggy cannot be turned out without incurring danger, it is the duty of the former to give way. This was the doctrine which the jury must have deduced from the charge, and in this there was no misleading.

When the Court said that if the injury complained of resulted from accident no blame could attach to the defendants, they must be understood to have meant inevitable accident — such as no human foresight could avert, or an accident occasioned by the concurring negligence of both parties. The whole tenor of the charge conveys this idea, and in such teaching there was no error. For inevitable accidents and for such as result from mutual negligence of parties, the law gives no redress, but when the injury comes from the exclusive negligence of one party, he cannot shield himself from calling it an accident. Whether this injury wa.s the product of negligence, and whose that negligence was, were questions for the jury; and having been submitted to> them, we have no power, if we had the inclination, to disturb their finding.

The judgment is affirmed.


author: Black, O. J.

text:
    Daniel versus Daniel.
    Errors not assigned according to the rules of this Court may he considered as waived.
    Error to the Common Pleas of Lehigh county.

    This was an issue of devisavit vel non, in which Samuel Daniel was plaintiff, and Joseph Daniel was defendant, and was directed to try the validity of the will of William Daniel, deceased. The verdict was for the plaintiff.
    It was assigned for error, first, “ The Court erred in rejecting the evidence offered in the first bill of exceptions.” 2. “ The Court erred in rejecting the evidence offered in the second bill of exceptions.” * ' * * * * 7. “ The Court erred in negativing defendant’s seventh point.”

      Bridges and Davis, for plaintiff in error.

      Wright and Reeder, for defendant in error.
   The opinion of the Court was delivered by

Black, O. J.

This was an issue to try the validity of a will assailed on the ground that the testator was incompetent and under undue influence. The result was a verdict, by which the will was pronounced valid.

We have listened to an argument on seven errors which are alleged to have been committed by the Court on the trial. But all these errors are waived, according to the rules of September, 1852, by the manner in which they are assigned on the record. These rules have been in full force for nearly two years. During that time they have been so generally observed as to prove that they are well understood, and easily followed. They are still occasionally disregarded. When they are, we sometimes dispose of the case just as if the rules did not exist. But this I believe has never been done except where some manifest injustice would otherwise have fallen upon the party. Perhaps even this is an indulgence which has done more evil than good. At all events, the time is approaching when it can be expected no longer. But here was a simple question of fact, fairly tried and determined according to the weight of evidence, under instructions as favorable to the plaintiff in error as he could ask. All the important evidence, and much that was unimportant, was admitted. All the exceptions but one (and that the argument abandons), are to matters of evidence so remote from the main subject of investigation, that their very remoteness creates the only difficulty about them. On every one of them the ruling of the Court turned on the question of relevancy. We cannot believe that the verdict would have been different if all these points had been decided the other way. When a party desires us to reverse a judgment which seems to be right according to the general aspect of the evidence, in order that he may have the desperate chances of another trial, he must not waive the errors on which he relies.

Judgment affirmed.


author: Knox, J.

text:
    Turner versus Reynolds.
    1. Where both parties claim under a eommon source it is not necessary for the plaintiff to trace his title beyond it.
    2. If the defendant be in possession as a mere intruder, it is only necessary to show the prior possession of the plaintiff, without showing a legal title in him.
    3. A son took possession of a coal vein under a parol agreement with his father, (who claimed the whole tract on which a large vein was then opened,) that he should have a smaller vein if he opened it. A lease was afterwards made by the father to the son and others, by which, the lessor “demised, let, and to mine let” all the tract of land known as No. 49 (the number of the lot on which the vein was opened), containing 160 acres or thereabouts, “ and the coal-bed thereon and now opened.”

      Held, that after the lease, the son, with his co-lessees, was in possession of the land as tenant, and not as owner.
    4. In an ejectment by persons claiming from the father, against persons claiming under the son, it was Held, that the plaintiffs might' show the possession by the father of the large vein, for the purpose of showing a right of possession in him to the small vein, and were not limited to proof of the possession in the father of the part of the land in which the small vein was opened.
    5. On eross-examination, the defendant is to be confined to the testimony given by the witness in chief.
    6. The executor of the grantor was a competent witness for the plaintiffs, who claimed as purchasers from his testator, though it appeared that the material part of the assets of the estate consisted of the bond of the plaintiffs, one of whom had declared to the executor that in case of failure to recover in this suit, he would endeavor to get an abatement of the bond. His interest in the matter was too remote to affect his competency as a witness.
    7. One who has the exclusive right to mine coal upon land is entitled even as against the owner of the soil and so certainly against an intruder to the possession of the land so far as it is necessary for such purpose.
    8. Where the portion of land necessary for such mining purposes did not appear in the case, it was Held, that this Court would presume, as against an intruder, that the possession of the soil in which the vein in dispute was situate was necessary for the purpose of mining.

      Error to the Common Pleas of Luzerne county.

    This was an action of ejectment by William O. Reynolds and Jane his wife, against Samuel 0-. Turner and Samuel Wadhams, for three acres of land in Plymouth, Luzerne county, being part of lot No. 49, called “ New Holland.” The plaintiffs claimed under John Smith.
    The title to lot No. 49, containing 121 acres, was shown to be out of the Commonwealth, but was not proved to have ever vested in the said John Smith. The coal on said lot No. 49 was conveyed to John Smith by two deeds, but it was alleged that title in the grantors to the land was not shown. Smith did not claim the soil of the tract, nor did the plaintiffs claim or assert any title to the land, their claim being confined exclusively to the coal on the tract.
    As early as 1816 or 1820 John Smith went into possession of a coal-bed on said tract known as the “Big Vein,” and claimed the coal on the tract described in the deeds to him. He continued in possession of this coal-bed for more than twenty-one years before the suit was brought; and on the 8th of December, 1848, he conveyed to William C. Reynolds and wife, all the coal in lot No. 49. There are several veins of coal, two of which are opened. One vein, the first opened, is called the red ash vein or “ Big Bed,” which is a vein of about twenty feet in thickness, and is the same which John Smith had in possession for above twenty-one years before he conveyed to Reynolds and wife; the other vein opened is the white ash vein or “ The Little Bed,” which is a vein of about seven feet in thickness, and overlays the “Big Vein” with rock, slate, &c., of from one to two hundred feet in thickness, between these two veins. John Smith worked only the red ash vein or “Big Bed.” The “LittleBed” or white ash vein was not opened until 1831 or 1832, when it was opened by Francis J. Smith, a son of John Smith, at a point on the tract about a half mile from the opening into the large vein.
    John Smith had made some examinations in 1831 or 1832, and told his son Francis that if he would open the small vein he would give it to him. Francis soon after had search made for the small vein, found what was supposed to indicate it, set men to digging a tunnel, and in 1833 he got to the face of the eoal of that vein; and he proceeded from year to year, mining and transporting from the bed so opened by him, considerable quantities of coal. Several witnesses testified that John Smith told Francis he might have the bed if he would open it; that he was there frequently while Francis was opening the mine; and one witness testified that he heard John Smith say to Francis that if he would open the bed he would give it to him; and Francis after that, in the presence of John Smith, hired the same witness to make the first opening, and it was made. Francis continued to mine yearly, after he opened the small vein, until he became embarrassed in the fall of 1847; and on the 8th of January, 1848, he made an assignment of all his estate, real and personal, to V. L. Maxwell and Charles Denison, who proceeded to act as his assignees. These assignees sold the interest of Francis in the coal-mines on the tract called “New Holland” to Samuel G. Turner and Samuel Wadhams, the defendants, who were creditors of Francis J. Smith, and conveyed the same to them by deed dated the 7th day of November, 1849. The said Turner and Wadhams, under this sale and conveyance, took possession of, and mined coal in the “ Little Bed,” opened by Francis J. Smith, claiming to own the same in right of the said Francis.
    On the trial of the case the plaintiffs proceeded to prove that John Smith went into possession of the premises described in the writ in 1811, and continued to use and occupy the same for mining coal till he sold the same to plaintiffs ; and then asked the witness as to the possession of John Smith of the large vein, on a part of the tract not included in the writ. The defendants objected to any evidence of possession of any coal-bed, except that on the land described in the writ and mentioned in the plaintiffs’ written offer. The Court overruled this objection, and permitted the plaintiffs to prove the possession of John Smith in the large vein, for the purpose of showing title to the smaller vein.
    The defendants’ counsel excepted, and this was the first bill of exceptions.
    The plaintiffs proved by Samuel Ransom that the coal business on the tract described in the deeds to John Smith, but not on the part demanded in this suit, was carried on by John Smith up to 1887. On the cross-examination of this witness, the defendants proposed to ask him whether Francis J. Smith and Samuel French did not carry on the coal business, each on his own account, long prior to 1837, on the same tract. The Court rejected the proposed testimony, and that constituted the defendants’ second bill of exceptions.
    The plaintiffs offered Draper Smith as a witness. The defendants showed that the witness was the executor of the will of John Smith; that the assets of the estate consisted of the bond of William C. Reynolds for $8000, the balance of purchase-money for the coal on lot 49 conveyed to him and wife by John Smith; and that Reynolds had informed the executor that if this suit should go against him he would endeavor to get an abatement from the purchase-money.
    The admission of the witness constituted the defendant’s third bill of exceptions.
    On the trial of the case the plaintiffs gave in evidence a lease dated 10th February, 1840, from John Smith to Samuel French, his step-son, Francis J. Smith, his son, and Draper Smith and William C. Reynolds, his sons-in-law, by which he “ demised, let, and to mine let all, that tract of land, situate in Plymouth township aforesaid, known as No. 49, in the 4th division of said township, containing 160 acres more or less, and the coal-bed thereon, and now (then) opened,” &c., for two years from the 1st of April then next, the rent to be $600 per year. The said lessees agreed to work and carry on the aforesaid coal-bed “ in a prudent, skilful, and workmanlike manner.”
    The lessees went into possession of the “Big Bed,” and the plaintiffs claimed that this lease included the opening in the little vein made by Francis. This was denied by the defendants, who claimed that the lease did not and never was intended to include the smaller vein.
    In support of their allegations, the defendants gave evidence of declarations of John Smith, that he had given the little bed to his son Francis, &c.
    The defendants claimed that John Smith offered to give Francis the little vein of coal, if he would find and open it; and that in pursuance of such offer, Francis proceeded, found and opened that vein, and took possession under the parol contract, and that the title to the White Ash Vein, or little bed, so discovered and opened by Francis, was vested in the defendants, as his grantees — also that it was a fact for the jury whether the lease of 1840 covered and included the little bed, to be determined by the terms of the lease, the testimony of Jameson Harvey and Alexander Gray, and the whole ■ evidence in the cause; and that the title shown by the 'plaintiffs was under the statute of limitations and was only to the vein of coal of which John Smith had had possession for twenty-one years — possession under color of title not extending the possession of John Smith beyond the vein of coal worked by him and in his possession, and not to be held to give title to either the under or overlaying veins.
    Further, that the plaintiff’s ejectment being for three acres of land — they showing no title in themselves, except to the coal, nor to any vein of coal except the large vein, the verdict in the case could not be a general one for the plaintiffs; nor could they recover the three acres of land under the evidence and the description in the writ — that if anything could be recovered by the plaintiffs, it was only the large vein of coal, and that it could not be recovered in an ejectment for the land, describing it as land in the writ.
    There was given in evidence, on the trial, a certificate to Hezekiah Roberts, in 1802, for part of lot No. 49; and a patent to him in 1805. Also a deed by William Currie to Lewis Hepburn, in 1810, for coal-bed on lot No. 49, reserving the fee simple in the soil, and reciting a conveyance by Roberts to Currie. Also a deed of Lewis Hepburn to John Smith, in 1811, for the one undivided half of the coal on the lot No. 49; and a deed of Patrick Hepburn and wife to John Smith, in 1816, for the other undivided half part of a certain coal bed or mine, on lot No. 49, with all other coal-beds on said lot.
    Jordan, J., charged that the lease of 10th February, 1840, by John Smith to Francis J. Smith and others, if it covered the premises in dispute, was a bar to the title set up by the defendants. He observed that the construction of the lease was for the Court, and the Court thought the terms of it covered the property in dispute. He said, “ it embraces the whole of lot No. 49 — all that tract of land, containing 160 acres and the coal-bed thereon, and now (then) opened. It includes the property in dispute; there is no reservation or exception in the lease in favor of Francis J. Smith, or any other person, and the lessees leased the whole tract, together with all the appurtenances, and the whole premises thereto belonging. The acts of the parties are the best evidence of the extent and limits of the demise.”
    The Court further instructed the jury, that this was not such a case in view of all the evidence, as satisfied the Court, that the defendants were entitled to hold the premises in dispute. The plaintiffs were entitled to a verdict. He observed that both Court and jury were to be satisfied.
    The Court also charged (in answer to a point on part of defendants) that the action could be maintained, although not brought for the coal, but the land; and that the action might be maintained, although the evidence showed that John Smith was not the owner, possessor, or claimant of the land.

    August, 1853, verdict was rendered for the plaintiffs.
    In the first, second, and third assignments of error, it was assigned that the Court erred in admitting the evidence specified in the first, second, and third bill of exceptions. 4. In admitting the evidence of Miles C. Richards. (He testified, inter alia, that Francis J. Smith and others had the mines worked for some years, till stopped by John Smith, perhaps in October, 1847.) The 5th was to the instruction that the lease was a bar to the action — that it embraced the property in dispute. The sixth was to the instruction that this was not such a case in view of all the evidence as satisfied the Court, that the defendants were entitled to hold the premises in dispute, &e. Seventh, in charging that the action could be maintained,' although not brought for the coal, but for the land ; and that it might be maintained, although the evidence showed that John Smith “ was not the owner, possessor, or claimant of the land.”

      W. J. Woodward, H. Wright, MeOlintoek, and Mallery, for plaintiffs in error.
    It was contended, as to the charge, that the Court erred in taking from the jury the question of fact whether the lease of 10th February, 1849, covered the premises in dispute. The construction of a deed is for the Court, but the applicability of the description in it, being a question of fact, is for the jury, and is frequently to he determined by evidence aliunde: 7 Barr 198; 10 Verm. 247. It was contended that the lease was a lease to mine — to mine “ the coal-bed, thereon and now opened;” and it was contended that the only coal-bed then opened on the tract and claimed by John Smith and in 'his possession, was the twenty feet vein. There was no covenant to work the coal-beds. Evidence was given of declarations of John Smith, made after the lease, that the little bed belonged to Francis. What was embraced in the lease was for the jury: 8 Johnson 495; 4 Dana 336.
    It was further contended that the action being for land, there could not be a recovery of a mere right to mine coal; the recovery should accord with the description in the writ. By the writ the sheriff was ordered to deliver to the plaintiff the land, to which, it was said, the plaintiff had no title.

      H. B. Wright, for defendants in error.
    Had there been no evidence of title in John Smith, the law would presume it perfect for the purposes of this action, as the parties claimed under him. When both parties claim under the same title, the plaintiff is not bound to trace his title beyond the common source of their right: 7 Ser. & R. 230, Riddle v. Murphy. It is not necessary to show title out of the Commonwealth, where both plaintiff and defendant derive title from the same person: 9 Ser. & R. 47.
    5th assignment. The legal effect of the lease did not depend on extraneous facts, as in cases referred to on part of the plaintiffs in error, but upon the meaning of the terms of the lease. The lease was of “ all that tract of land.” The surface did not belong to the lessor, and therefore the words used did not apply to it, but to the coal which he claimed. Land is a general term, and includes everything belonging to it.
    6. If there was a parol sale to the son, it was merged in and terminated by the lease: 7 Harris 476. To the objection that the plaintiff was not entitled to recover because under the statute of limitations he had title only to the big or red ash vein, it was, inter alia, said that Reynolds was in possession under color of title, and had a right to turn out mere intruders.
    7. Ejectment will lie for a coal-mine: 2 Cro. 150; 2 Yeates 331. It is sufficiently described by the rvord land, at least as against defendants. They were not claiming the soil, and the ejectment was brought to recover the mine. Under the deeds to John Smith, such interest in the soil was vested in him as was necessary to the enjoyment of the coal-mine. The deed of Lewis Hepburn to John Smith, for one-half of the coal on lot No. 49, was produced; and also a deed from Patrick Hepburn and wife to John Smith for the other half. This last-mentioned deed recited a conveyance to Charles Catlin of the last moiety, but the conveyance by Catlin to Patrick Hepburn was lost. This was the only link wanting to complete the plaintiff’s title. But its existence might be presumed: 7 W. & Ser. 215. The plaintiff, therefore, did not rely on the statute of limitations, but also on such presumption.
   The opinion of the Court was delivered by

Knox, J.

This was an action of ejectment brought by William C. Reynolds and wife against Samuel Gr. Turner and Samuel Wad-hams, for three acres of land in Plymouth, Luzerne county, part of lot No. 49, called New Holland. The plaintiffs claimed under John Smith, and the defendants under Francis J. Smith, the son of John Smith.

On the trial, the defendants alleged, 1st. That John Smith had no title to the premises in dispute; 2d. That if he had, it passed by a parol gift or contract to his son Francis J.; 3d. That as the action was brought for land, and the evidence only showing title for the coal upon the tract, no recovery could be had in the action as brought.

First, as to the title of John Smith. It is only necessary to say that if Francis J. Smith’s claim was derived exclusively from his father, and this was scarcely denied, the plaintiffs could not be required to trace the title beyond the common source under which both parties claimed. If the defendants were in possession as intruders merely, the prior possession of John Smith and of the plaintiffs was sufficient, without showing a legal title.

It is very clear that the main contest between these parties turned upon the validity of the alleged parol gift or contract from the father to the son; and with the decision of the Court of Common Pleas upon this question we are entirely content. No other construction of the lease bearing date on the 10th February, A. D. 1840, could properly have been given, than that it included the right to mine the coal on the whole tract. Under this lease the possession was in all of the lessees as tenants in common. If Francis J. Smith ever had the exclusive possession of any portion of the tract, or the exclusive right to take coal from any of the openings, his possession after the execution of the lease was a joint one, and his right was under the lease, and not in opposition to it. He was there as a tenant, and not as an owner. This disposes of the substantial points of the controversy. For the purposes of this trial the father’s title was perfect, the son’s good for nothing.

The reception of the evidence mentioned in the first error assigned was proper. It had been shown that John Smith had at least colorable title to all the coal upon the tract, and his possession and occupancy by mining upon any portion of it was clearly pertinent. It is not to. be supposed that he either could or would open mines upon every part of the tract at the same time.

The question put by defendants’ counsel to Samuel Ransom was not a cross-examination, and therefore rightly excluded.

The interest of the executor was too remote to affect his competency as a witness.

Nothing is said in the argument of the plaintiffs in error as to the fourth bill of exceptions, and we can perceive no sufficient reason for excluding the evidence of Miles C. Richards.

The subject-matter of the fifth and sixth assignments has already been noticed.

The seventh and last error assigned is to that portion of the charge in which the Court say, “that the action can be maintained, although not brought for the coal, but the land, and that tho action may be maintained, although the evidence shows that John Smith was not the owner, .possessor, or claimant of the land.”

One who has the exclusive right to mine coal upon a tract of land has the right of possession even as against the owner of the soil, so far as it is necessary to carry on his mining operations. What portion of the land in dispute was necessary for this purpose was not the subject of inquiry upon the trial. As against an intruder, where the exception is so purely technical we will presume that the possession of the soil was requisite, in order to enable the plaintiffs to avail themselves of their mining privileges. They have the right of entry for this purpose, which was denied them by the unwarrantable interference of the plaintiffs in error, and who cannot complain of injury, although dispossessed of the entire premises.

Judgment affirmed.

Woodward, J., having been counsel in this case, toolr no part in its decision.


text:
    Davis’s Appeal.
    1. Two .administrators filed separate accounts, each one charging himself with a part of the estate. On the settlement of a.subsequent account by one of the administrators, it was Held, that he was not chargeable with the balance in the hands of .his co-administrator, however the case might be in a suit on the joint administration bond.
    2. An administrator may retain a reasonable amount of the estate in his hands, to meet expenses and to pay claims in suit against the estate, without being liable for interest on such amount.
    Appeal from the decree of the Orphans’ Court of Bucks county.

      This was an appeal by John Davis, guardian of a minor child of the decedent, 'from the decree of the said Court, upon the account of Amos Vansant, administrator of the estate of Simpson Torbert, deceased. The intestate died in 1838, leaving a widow and one child. In June, 1838, administration was granted to Cor-yell and Vansant. The inventory exceeded $9000. On 14th December, 1840, Vansant filed a separate account, showing a balance in his hands of $1800.03. On 8th February, 1841, Coryell submitted an account showing a balance in his hands of $8100.97. In the balance was included his own note for $1460, — two notes of himself and Murray, one for $2632.55, and the other for $3200, and also ten shares of Beaver Meadow stock, amounting to $500, being its par value.
    On 9th February, 1842, the widow of the decedent, by Coryell as her agent, excepted to the account of Vansant, and an auditor was appointed. The auditor did not report till 1847; and previous thereto, viz. in December, 1842, on the petition of Vansant and of one of the sureties in the administration bond, Qoryell, on failure to give additional .security, was dismissed, and on 16th January 1843 he' was ordered to deliver up the trust property in his hands. Cory ell having paid about $2000, in accordance with the order, in February 1843 his counsel offered to deliver to Vansant’s counsel the papers in Coryell’s possession, including the note of Coryell and Murray for $2500, and two other notes, and the stock in the Bearer Meadow Company. The counsel refused to receive them.
    In June, 1847, the auditor appointed to examine Vansant’s account made a report, in which he charged Vansant with the note of Coryell and Murray for $2500, and interest on the same, and with the ten shares of Beaver Meadow stock at the selling price of $28 per share. Exceptions on part of Vansant were filed, and in December 1850, the report was set aside.
    In 1847, an order was directed to Vansant to sell certain real estate, which, in 1848, he sold for above $7000.
    In December, 1850, a citation was directed to VanSant to settle a final account, and he afterwards exhibited an account showing a balance in his hands exceeding $1100.
    In February, 1851, exceptions were filed on part of the guardian so the effect that Vansant, the accountant, should be charged with the amount of the note of Coryell & Murray for $2500 and interest on it, and with the value of the Beaver Meadow stock. An auditor was appointed, who reported that, as far as it appeared in the first account exhibited by Vansant, he appeared to be charged with all the estate he had received; that the Court afterwards dismissed the exceptions to it, and confirmed it. He observed, that at the time of filing it, and whilst the exceptions to it were pending, the administrator was contesting claims against the estate, and that it was necessary for him to retain the balance to meet expenses and to pay judgments as recovered. After deducting payments, the auditor charged interest on a sum less than $400. He further expressed the opinion that the decree of the Orphans’ Court, setting aside the auditor’s report, and confirming the first account of Yansant, was examinable only on appeal. He thus did not charge the accountant with the note of Coryell & Murray, nor with the Beaver Meadow stock. He also declined to charge him with the note of a person who was insolvent. The balance reported was less than $500.
    Exceptions were filed to 'the report: the first was, that the auditor erred in not charging the accountant with a larger amount of interest. 2. In not charging the accountant with the amount of Coryell & Murray’s note, and interest. 3. In not charging him with the stock. 4. In assuming that the Orphans’ Court had decided as stated by the auditor.
    Smyser, President Judge, dismissed the first exception.
    As to the 2d exception he observed, that the administrators had a right to settle separate accounts. Coryell, in his account, charged the note of Coryell & Murray, and his account was confirmed. That it was not received in money made no difference. It was a debt due by a firm, of which he was a member, to himself as administrator. His retention of the note was of no consequence. Under thése circumstances, Yansant should not be required to charge himself with it, — however the case might be in a suit on the administration bond, he was not chargeable in the Orphans’ Court with the balance in the hands of his co-administrator. It was in accordance with Chancery practice, in the first place to call upon the party who was primarily liable: 1 W. Ser. 291, case of Patterson’s Estate. As related to the tender of the note, Yansant was not bound to receive anything but money; the note also was liable to the bar of the statute.
    3d. As to the stock, he observed that it was liable to the same objection; and besides, it was still in existence, and might be transferred to the distributee, if willing to receive it, in part satisfaction of the balance due by Coryell.
    Exceptions were filed to the effect that the Court erred in setting aside the report of the first auditor on the account of Yansant. 2. In not charging Yansant with the note of Coryell & Murray. 3. In not charging him with the Beaver Meadow stock.

      It. Fox, for appellant.
    Dm Bois, with whom was Wright, contri.
   The opinion of the Court was delivered by

Knox, J.

The grounds upon which the Orphans’ Court confirmed the auditor’s report are clearly stated in the opinion of Judge Smyser. Eor the reasons therein given, we affirm the decree.

Decree affirmed


author: Black, C. J.

text:
    Bush versus Johnston.
    1. Where the public, for above thirty years, had been permitted to occupy as a sidewalk a portion of ground in a village, in front of a private building, and the owner extended into the sidewalk or near to it a hatchway leading to his cellar, and interrupted the passage, permitting the interruption to remain for several days without enclosure or other protection against accident, it was Held, that he was liable to a person who was injured by falling into the same in the night time, no want of ordinary care on the part of the person injured appearing.
    2. The burden of proof of want of ordinary care on the part of the person injured lay upon the party alleging it, .viz., the defendant.
    3. The Court had a right to express an opinion as to the character of the injury sustained.
    Error, to tbe Common Pleas of Tioga county.

    This was an action on the case to December Term, 1850, by Jacob Johnston v. Alva C. Bush and Jabin S. Bush, to recover damages for an injury sustained by the plaintiff from falling into a hatchway near the sidewalk and near to the store of the defendants in the village of Tioga. The writ.was not served on J. S. Bush. The plea was not guilty; also that if any injury arose to the plaintiff in the premises, the defendant would be only jointly liable with J. S. Bush who was not served with the process.
    A. C. Bush, the defendant, was the owner of a lot in Tioga village, on which he had a store-house erected, which was occupied by him. For the purpose of repairing the hatchway leading to the cellar, the walls were taken up, and before they were completed, the plaintiff, when passing in the evening of the 18th October, 1848, fell in and had his shoulder injured. It was alleged on the part of the defendant below, that the work was done with reasonable despatch, and that the plaintiff knew that the work was progressing — and had seen it. On the part of the plaintiff it was alleged that the pit was open from two to four weeks, and that the night was dark and rainy when the accident happened; and to avoid the rubbish thrown out it would have been necessary to go into the street.
    The defendant purchased the lot on which the store-house was erected in 1832, and erected the store-house in 1834. It is situate on the east side of Main street or Williamson road. It was alleged on part of the defendant that the house was set back from the line of the road 10 or 12 feet, leaving the hatchway, platform, and sidewalk within the boundaries of his lot.
    The chai’ge was, inter alia, as follows :—
    “ It is not disputed by the defendants’ counsel that plaintiff had his shoulder dislocated by falling into the area or hatchway opposite defendant’s store, or that the area or hatchway was put there by the act of the defendant. But they allege

      “ 1st. That he had the right to put it there, and this they base upon his ownership of the land on which it was dug, assuming that he had the exclusive right to occupy it for any purpose whatever, and that the public had no right of way over it.
    “ 2d. That in digging the hatchway or passage to his cellar, he used all necessary and proper precaution to guard the public against accident or injury from it, and was not guilty of that kind of negligence which would render him liable for resulting damages.
    “3d. That the plaintiff had been guilty of negligence himself, and had not used ordinary care and caution in passing the hatchway, and that his misfortune was the result of his own carelessness or recklessness.
    “ 1st. The building in front of which the hatchway was dug in which the plaintiff received the injury, is located on the east side of Main street, in the heart of the village of Tioga. The sidewalk in front of the building is perhaps as much used as any other portion of the sidewalks in that village. This street is called Main street, or Williamson road, in the deed from James Goodrich to defendant, conveying the lot on which defendant’s store is erected, and the lot is described in it as bounded by this street on the west. The passage-way is immediately in front of the building at its north-west end, and at the time plaintiff fell into it, the wall which originally enclosed it had been taken out and the area enlarged. The right of the defendant to build or enlarge it is not denied; but it is urged by his counsel, that he had the right irrespective of any rights of the public, and that under the facts disclosed in regard to the title it was not necessary that he should guard the public against injury by enclosing, fencing, or otherwise. This position we conceive is not tenable, and we instruct you that it is not law.
    “ *The plaintiff has established the right of the public to use this street by prescription, having showed by William Garretson, that it was occupied as a public street or highway according to its present boundaries in 1827 ;* and by Ira McAllister that it was thus occupied when he came into the country in 1816, and that the red store known as the Evans store, was built in 1826 and located in what was then supposed to be the east boundary of the street. The evidence of McAllister and others also shows that defendant’s store ranges in a line or-nearly so with the Evans store. The deed from James Goodrich to the defendant, conveying the land on which his store stands, is dated the 2d of March, 1832. On the 27th of November, 1788, the Act of Assembly was passed authorizing the laying out and opening of the Williamson road; and on the 10th of April, 1792, and 11th of April, 1794, other Acts were passed confirming it. JVJien it was first opened and travelled as a highway, does not appear in evidence. Nor is there any evidence in the cause showing by what authority the road or street was opened to its present boundaries, it having been opened of a greater width in the village of Tioga than was contemplated by the original Act authorizing it.
    “ It results therefore from the e'vidence, that, at the time defendant bought and took possession of his lot and erected his store, the public had not a right, by prescription or by legislative enactment, to occupy that portion of the street in front of his store which he occupied with his hatchway and platform and steps, unless it constituted a portion of the Williamson road, as originally surveyed, and of this there is no proof. On the contrary, the evidence would lead to the inference that it was not a portion of the original Williamson road, and that the road occupied the west part of the street commencing at James Goodrich’s house, which was its western boundary, and extending towards defendant’s store. It is contended, therefore, that the right of the public to use the land as a sidewalk, within the posts placed in front of hid' store, was merely permissive — that defendant consequently had the right at any time to resume its occupancy, and that in point of fact he had done so by locating his posts as he did, and by occupying a portion of the ground by the hatchway to his cellar, and by the steps and platform in front of the entrance to his store-room. In reply to this position, we say that it is questionable in the first place whether the defendant by his deed acquired any portion of this land, as he is bounded on the west by Main street or Williamson road, his starting point being the north-west corner of the lot on which the Evans store was erected, there being no other designated or fixed boundary of the street or road, and defendant having placed his store in range with the Evans building.
    “ *But whether his deed included this land or not, we deem wholly immaterial. It was never enclosed by the defendant, and the public were always permitted to occupy and use the sidewalk inside of the hitching posts put up by him, from the time he took possession of the lot and built on it, down to the commencement of this suit* — he occupying no portion of the ground between his store and hitching posts, except what was embraced by his hatchway and steps and platform. It is therefore submitted to you, that the public had a right by prescription (even conceding that the ownership was in defendant at the time he purchased) to occupy and use as a way or sidewalk, the ground which they have used and occupied since 182T between the hitching posts and the original hatchway and steps to the platform in front of defendant’s store; and if you believe from the evidence that he enlarged the hatchways, extending them into the side walk, or in close proximity to it — that he threw out a pile of earth in front of the hatchway and on the sidewalk adjacent to it, thereby interrupting the passage of the public; and that he permitted the hatchway and the earth thrown out to remain in this condition several days without an enclosure around them or guard of some kind sufficient to protect persons passing by from falling into the hatchway, the law would hold him liable for any injury which might be sustained in consequence thereof — unless the injury resulted from the want of ordinary care on the part of the person sustaining it. *We hold the law to be the same, even were the right of the public to use the sidewalk permissive and not a prescriptive right.*
    “ *The owners of lots in a village, whether incorporated or not, who see fit to throw out a portion of their land for the purpose of widening a street, or making a sidewalk, have no right, so far as regards the principles which govern the law of nuisance, superior to those whose lots are bounded directly upon a regularly laid out public street, or upon a street which has become a public highway by prescription. Even if they could legally resume possession of the land thus added to the street, it would, until possession was resumed by actual enclosure, be such a dedication to the public use as would render the owner liable in an action on the case to any person who might be injured by the creation of a nuisance by him in front' of his building or enclosure.*
    “ *The plaintiff, therefore, having established Main street or Williamson road through the village of Tioga as a public highway by the introduction of evidence showing that it was used as a road during a period of 80 years or upwards, up to the time plaintiff received the injury complained of, the question of title raised by defendant is wholly irrelevant, and will not be permitted to avail him as a-defence.*
    “ 2d. Did the defendant use all necessary and proper precaution to guard the public against injury from the hatchway which he caused to be dug in front of his store ?
    “ It is not alleged that there was any enclosure of the area in which plaintiff was injured from the time the wall was taken out, and it was enlarged, until the new wall was finished, and the dirt thrown out removed. The evidence shows there was a dry goods box placed on the sidewalk, at the southern extremity of the hatchway. On this one end of a plank, some 12 or 14 feet in length, was laid with its other end resting on the door-sill of the store door. It was also shown that persons coming down street, in the direction travelled by plaintiff when he was injured, would necessarily run against the plank or box, if they pursued a straight line along the sidewalk, and that they could not fall into the hatchway without getting over the plank, or going around its west end, and then diverging considerably from a straight line to the right, the plank extending some six feet or more beyond the hatchway. But this plank and box were not stationary or fixed. The plank was frequently down while the men were at work in the hatchway and cellar; and Ira Baker, who aided in taking Johnston out of the hatchway, on the night the injury was received, swears there was no plank there then. In front of the hatchway, and at its north end, there was no plank or protection whatever; and where the plank was down at the south end, there was nothing to prevent a person from walking in at either end, or in front, except the pile of dirt which was partly on the sidewalk, in front of the hatchway; and this, instead of affording protection, might in consequence of the footpath over it, near the edge of the hatchway, tend, as some of the witnesses testify, to lead a person into it.
    “ *We charge you that it was the duty of defendant to have protected the public against this hatchway, by a substantial enclosure of some kind, or by keeping a light burning near it after night, in a position to have shown it distinctly enough to have enabled persons using ordinary caution, to avoid it; and that if he did not do so (the evidence does not show that he did), whether it is properly designated as gross carelessness or ordinary carelessness, it is sueh carelessness and disregard of the rights of the public as will render him liable to pay damages for all injuries sustained by reason of it.* It is hardly necessary to add that the hatchway, at the time the- plaintiff fell into it, was from its position and situation a public nuisance, if it was not guarded as before stated; and whether it was or was not thus guarded, you will determine, taking into consideration all the evidence which has a bearing on this part of the case.
    £i 3d. Did the plaintiff use ordinary care and caution in passing the hatchway, or was his misfortune the result of his own carelessness ? If the injury sustained by plaintiff was the consequence of his own want of ordinary care, he is not entitled to a verdict, no matter how culpable may have been the conduct of the defendant. When mutual negligence is shown, the injured party cannot recover damages, the law regarding his misfortune as the result of his own want of caution, and not of the carelessness or default of the other party.
    ££ But the burthen of proof of want of ordinary care, rests upon the party alleging it, and in this case, upon the defendant. Has he shown satisfactorily that plaintiff did not use ordinary caution, or can you infer that he did not from the facts given in evidence for the purpose of establishing that inference ? These facts are that Johnston was there when Shaft was at work digging out the hatchway; that he lived up Wellsboro’ street, and was frequently at Baldwin’s store, nearly opposite; that he occasionally was seen going into Baker’s grocery store after the hatchway was opened, passing so near it that he' could scarcely have avoided seeing it; that there was a light kept burning usually in front of Baker’s grocery, and that there were other lights in the neighborhood ; that the accident occurred about 8 o’clock in the evening, and that the lamps, according to Steele’s evidence, were burning in his store that night after that hour, and that they lighted up the street in the vicinity of, this hatchway. You will judge whether from these facts and others, which have been introduced in evidence, the inference fairly arises that the injury received by plaintiff resulted from his own want of care and caution. This is purely a question of fact for your determination, upon which we intimate no opinion, and deduce no inferences for your guidance. It is your province to decide it, and we submit it entirely to you with the simple instruction, that if you believe the plaintiff Avas guilty of negligence, or did not use ordinary caution, and by reason thereof fell into the hatchway and sustained the injury complained of, he is not entitled to your verdict.
    “ Upon the question of damages: should you find for the plaintiff, you Avill give him Avhat you believe he is justly entitled to from the evidence. *The injury is one of no ordinary character, and the plaintiff, if entitled to recover, is entitled to a fair and full compensation for it, so far as it can be made in money by your verdict.*”
    December 18, 1852, verdict for plaintiff for $1000.
    Error was assigned to the parts of the charge included between asterisks; and 9thly, in not answering certain points proposed on part of the defendant.

      Guernsey and Maynard!, for plaintiff in error.
    It was alleged that the hatchway was not in the public highway or sideAvalk, but within the enclosure of the defendant occupied by him exclusively for his private purposes; and that the Court withdrew such fact from the consideration of the jury by assuming that the hatchway was located in the street. That there was error in this was cited 1 W. & Ser. 68; 6 Id. 137; 11 Ser. & R. 427. It was error not to instruct the jury on points proposed: 5 Ser. & R. 427.
    It was said that the plaintiff below knew of the location of the hatchway: cited 6 Barr 472.

      Sherwood and Williston, for defendant in error.
    It was said that Bush’s property was bounded on the west by the Williamson road. The plaintiff below passed by on the first day when the hole was being dug, but there was no evidence of his being there afterwards till the accident happened. The repairs were not made with expedition. No argument on legal questions was submitted on the paper-book, but the following authorities Avere simply cited, viz.: 2 Greenleaf’s Ev. 623; 4 Barr 305; 1 Harris 625-6; 1 Barr 319; 4 Harris 463; 9 Barr 193; 2 Id. 114; 4 Id. 486; 16 Ser. & R. 395; 2 Watts 23.
   The opinion of the Court was delivered by

Black, C. J.

We have considered this case, and are of opinion that it was properly decided in the Common Pleas for the reasons which are embodied in the charge of the President Judge.

Judgment affirmed.


text:
    Riland versus Eckert.
    1. In ejectment it is a legitimate defence to show title outstanding in a third party, but it must be a valid, subsisting title.
    2. The provision in the 34th section of the Act of 24th February, 1834, relating to executors and administrators, requiring the widow and heirs to he notified where it is designed to charge the land, does not apply to judgments obtained against the debtor himself: 8 Watts 124, Brobst v. Bright.
    3. A sale of land on a judgment obtained against an administrator in a. suit originally brought against the debtor, who died before judgment, is not void as to others than heirs and devisees; though the latter may not be concluded by the judgment, strangers or intruders may not treat it as void on account of the want of such notice.
    4. Suit was brought in the Circuit Court against a debtor in 1798. Before judgment the defendant died, and judgment was entered against the administrators in 1800. In 1831 the administrator de bonis non was made defendant and judgment revived de terns et de bonis quando aeciderint. In 1837 a fi. fa. was levied on the land in question, which, in 1838, was sold on venditioni exponas. Held, that if the heirs who were not made parties to the proceeding were not concluded by the judgment, the defendants, who were strangers to the proceeding, could not take advantage of the irregularity; whether the heirs were precluded from setting up title after so long neglect not decided.
    5. The fact that the judgment and proceedings were had in the Circuit Court neither limits nor extends their effect. The Act of 1798, limiting the lien of judgments, applied to judgments in that'Court; and subsequent enactments in relation to judgments as they affected real estate within the state, were applicable to such judgments.
    6. In an ejectment for land claimed by the plaintiffs under a sale under such judgment, the record of the judgment and proceedings were admissible in evidence, and were sufficient to transfer the title of the decedent, as against strangers to the judgment and proceedings thereon.
    7. A settler on vacant land, who takes in part of a surveyed tract and maintains his claim for twenty-one years, may acquire title to the latter part under the statute of limitations, whilst perfecting his title to the vacant land under the pre-emption statutes. But he has no title to the part of the surveyed tract not included within his marked boundaries. His constructive possession to the land beyond the extent of his actual possession, will be limited by his lines on the ground defining the extent of his claim.
    Error to the Common Pleas of Schuylkill county.

    This was an action of ejectment brought to June Term, 1846, in which George N. Eckert and S. Guilford were plaintiffs, and William Bil&nd and others were defendants. It was brought to recover 60 acres of land in Pinegrove township, which the plaintiffs claimed to be part of 440 acres and 31 perches, surveyed on a warrant to Conrad Lengle, dated 3d April, 1794, and patented on 6th April, 1795, to James Wilson. In the patent, the lands embraeed in the warrant and survey were described, and there was recited a deed from Conrad Lengle to James Wilson.
    On the part of the plaintiffs was offered in evidence the record of a proceeding in the Circuit Court of the United States, for the Eastern District of Pennsylvania, in a suit to April Sessions, 1798, by Samuel Hughes, a citizen of Maryland, against James Wilson. The death of James Wilson was afterwards suggested, and a sci. fa. issued to April Sessions, 1799, against Bird Wilson, William Nichols, and John Adlum, administrators of his estate. On 11th April, 1799, the writ was returned served. On April 14, 1800, judgment for $2200. A fi. fa. was issued on 16th January, 1813, against Bird Wilson and John Adlum, surviving administrators, but it was not levied on the land in dispute. Afterwards Bird Wilson and John Adlum renounced. On 19th February, 1831, the death of Samuel Hughes, the plaintiff, was suggested, and a sci. fa. issued to April Sessions, 1831, in the name of Samuel Hughes, administrator, against T. M. Pettit, administrator de bonis non of the estate of James Wilson, deceased, to revive the judgment; and 20th May, 1831, by writing filed judgment by consent was entered, “ to be levied de terris et de bonis guando acciderint.” Several writs of execution were issued from May, 1831, till September, 1837, but none of them were levied on the land in dispute; but apl.fi.fa., issued on 26th September, 1837, was levied on it. Ven. exp. was issued on 5th January, 1838, and on 11th April, 1838, it was returned that the Conrad Lengle tract had been sold to George Pf. Eckert. On 11th April, 1850, on petition of George N. Eckert, and on affidavit of the marshal, the latter was permitted to amend his return to the effect that the said tract had been sold to William Eckert.
    The marshal’s deed was acknowledged on 10th May, 1838.
    William Eckert and wife, by deed of 17th February, 1840, conveyed to Eckert and Guilford, the plaintiffs.
    James Wilson left issue. Bird Wilson, one of the administrators, was one of his children.
    The defendants did not claim under the heirs of James Wilson, but claimed the land under an improvement made by Christopher Whitmore, and deed poll by him dated 12th April, 1774, to Henry Battorf for 150 acres; also deed from the latter to Adam Battorf — deed from the latter to John Adam Lengle, and deed by the latter, dated 2d September, 1814, to Henry W. Conrad, for land stated to have been found by actual survey to contain 224 acres 35 perches, and reciting an improvement. There was given in evidence the record of a judgment against Henry W. Conrad, and sheriff’s sale of the land in dispute in July, 1839, and several subsequent conveyances vesting Conrad’s claim in the defendants.
    The plaintiffs then gave in evidence, as rebutting testimony, an application made by Henry W. Conrad, dated the 15th May, 1818, for 100 acres unimproved land, Pinegrove township, Schuylkill county, adjoining his other land, &c., accompanied by the oath of H. W. Conrad that the land applied for was vacant land; surveyed 25th May, 1818, in pursuance of warrant, &c.
    The survey made under Henry W. Conrad’s warrant included the land in suit, which had been already surveyed under the warrant to Qonrad Lengle, but it did not include any of the improvement claimed by Conrad.
    On part of the plaintiffs points were submitted, viz.: 1st. That in order to establish a title by the Statute of Limitations, there must be an actual, notorious, and visible possession, continued for a full period of twenty-one years. 2d. That a title by improvement cannot extend into surveyed land, and a person holding title by improvement on the vacant lands of the Commonwealth, cannot extend such title by construction so as to embrace surveyed land. 3d. That although, as in this case, there may have been, at one time, a claim of title extending into the survey of Conrad Lengle, under the improvement claimed by Henry W. Conrad, yet if in 1818 Henry W. Conrad took up the land as vacant, and had a line marked between the improvement and what he called the vacant land, he at that time severed all constructive possession of the vacant piece from his actual improvement; and that line being kept up on the ground, as officially marked by'him at the time, and there being no actual possession of any portion of his survey of 1818, there could be no title to any portion of the survey of the Lengle tract, arising from the possession of the improvement; and the plaintiffs were entitled to recover.
    Points submitted on part of defendants were as follows: 1st. That the judgment obtained in the Circuit Court (U. S.) against T. M. Pettit, administrator of James Wilson, deceased, created no lien on the lands of said deceased, as against his heirs, devisees, or their alienees, and that therefore the purchaser at the marshal’s sale under said judgment, acquired no title ivhatever, and cannot recover in this suit. 2d. That the application by Conrad in 1818, to take up a portion of the land embraced in his deed from John Adam Lengle, alleging that it was vacant and unimproved, does not divest him or those claiming under him with any right they would otherwise have by virtue of the Statute of Limitations, but the same is to be treated as if such application had not been made.
    Kidder,, J., in his charge to the jury, inter alia, observed that the title of James Wilson, acquired by his patent, had become vested in the plaintiffs. The defendants claim the land in dispute under improvement; and also by the Statute of Limitations. They have shown that an improvement was made at an early day on land adjoining the Conrad Lengle survey, which by sundry conveyances became vested in Henry W. Conrad on 2d September, 1814. His interest has been vested in the defendants by a sale by tbe sheriff. He charged that by the survey which Conrad had made in 1818, which, though it included the portion of the Conrad Lengle survey in dispute excluded the improvement, Conrad would seem to have defined and limited the extent of his improvement and possession; and if the evidence referred to in the plaintiffs’ points was believed by the jury, the points were answered in the affirmative.
    In reply to the first point submitted on part of the defendants, he charged that the sale by the marshal conferred title upon the purchaser. The second point was answered in the negative.

    Verdict was rendered for the plaintiffs.
    Error was assigned, first, to the admission in evidence of the record of the suit of Samuel Hughes v. James Wilson, and the proceedings thereon: secondly, to the answer to the defendant’s points : and, thirdly, to the plaintiffs’ third point.

      Oampbell and Hughes, for plaintiffs in error.
    It was alleged that James Wilson, at the time of his death, was seised of the land in dispute. Suit was brought against him, but he died before judgment, and his heirs were not made parties to the proceedings. Though judgment was obtained against his administrators in 1800, the land was not levied on till 1837. The material questions were whether the sale of the land conferred any title as against the heirs and devisees of.James Wilson; and whether the defendants may not set up an outstanding title in them to defeat a recovery by plaintiffs. The judgment, not being obtained against James Wilson himself, never was a lien on the land in dispute, except as provided by the Acts of 1797 or 1834; and that lien expired in seven years after the death of James Wilson, as respected the heirs or devisees not notified: 9 Barr 249, Keenan v. Gibson; 8 Barr 235-7, Bredin v. Agnew; 2 Watts 53, Penn v. Hamilton; 7 Watts 217, Duncan v. Clark; 9 Barr 265, Moorehead v. McKinney; Id. 249.
    It was contended that the defendant might show that the plaintiff had no title, or that a better title existed in another person not party to the suit: 8 Watts 101; 9 Ser. & R. 92; 3 Watts 97; Addison 254.
    As to the 2d assignment. It was contended that the act of H. W. Conrad, in obtaining a warrant and having a survey made of a portion of the land embraced in the deed to him by J. A. Lengle, did not prevent him from claiming under the statute. That whether or not he intended to abandon a portion of the land included in his deed should have been submitted to the jury: 4 Ser. & R. 436; 2 Smith’s Laws 321, Lessee of Davis v. Keefer; 2 Pa. Rep. 384; 4 Barr 219; 5 W. & Ser. 339.

      Bannan, for defendants in error.
    The defendants below were not connected with the Wilson title, but claimed under an independent title by improvement by O. Whitmore or some one claiming under him; and on their part it is the case of intruders on the Wilson survey. It is not material whether the proceedings under the suit against Wilson and the judgment against the administrators of his estate conferred title as against his devisees or heirs, for1 the defendants below, having no connexion with them, cannot interpose objection on their account: 1 Watts 533, Coxe v. Blanden; 3 Pa. Rep. 426, Hunt v. Crawford; 1 W. & Ser. 501; 9 Watts 344; 5 Barr 494.
    As to plaintiff’s third point. The claim by occupation and improvement was limited by the warrant and survey of Conrad in 1818, he being then the owner of the improvement. A marked boundary line was made between the improvement and the land claimed under his warrant of 1818. No part of the land included in his survey was occupied or improved, and therefore there could be no claim under him under the Statute of Limitations to any part of the interference which he alleged to be vacant and unimproved.
    It was said that the judgment against the administrator of Wilson was in the Circuit Court, and that its lien was not the subject of state regulation.
   The opinion of the Court was delivered by

Woodward, J.

The result of legislation and judicial decisions in Pennsylvania touching the liens of judgments and executions on real estate, seems to be that where the judgment is a lien, there can be no independent lien acquired by execution process thereon ; but where land is seized in execution by virtue of a judgment which is no lien, the execution becomes a lien on it. This is the ground on which Packer’s Appeal, 6 Barr 277, and Jamison’s Appeal, Ibid. 280, are reconciled in Davis v. Ehrman, 8 Harris 258. In Todd v. McCulloch, 3 Penna. Rep. 445, it is said to have been established substantially, if not in terms, in Betz’s Appeal, 1 Pa. Rep. 271, that the lien of a judgment is preserved by an execution only as regards the land levied; a dictum which is not accurate, for since the Act of 1827 the lien of a judgment, according to all the cases, is not continued by an execution levied, but, as is afterwards said in the same case, the lien by which lands are bound for more than five years without a scire facias, seems to be that which the common law attributes to an execution, rather than the lien of a judgment.

These distinctions belong to questions of distribution, of which there are none in the case before us, but still they have an application here as showing that though the lien of the judgment against the late Judge Pettit, as administrator de bonis non of Judge Wilson, had expired before the pluries fi. fa. of 26th September, 1837, issued, yet a lien was acquired by virtue of the levy made in pursuance of that writ, and then the venditioni exponas of 5th January, 1838, was legal authority to the marshal to sell and transfer Judge Wilson’s title in the land.

But this sale was made after the Act of 1834, the 34th section of which requires the widow and heirs or devisees to be made parties to a judgment obtained against the personal representative of a decedent, where the plaintiff intends to charge the real estat.e of the decedent with the payment of the judgment. This was never done in the case before us. Samuel Hughes, a citizen of Maryland, commenced his suit against Judge Wilson in the Circuit Court of the United States in 1798. Before judgment Judge Wilson died, and his administrators being substituted, judgment was entered against them in 1800. In 1831, the death of the plaintiff was suggested, and his administrator substituted, and Thomas McKean Pettit was brought on the record as defendant, in the character of administrator de bonis non of James Wilson — the judgment revived 20th May, 1831, de terris et de bonis quando aaciderint, and several executions issued without effect until the piurías fi.fa. of 1837, as above stated.

The plaintiffs in error, who were the defendants below, claim not under the Wilson title, but in opposition to it, and they insist that the above proceedings left his title outstanding in Ms heirs, and that this is a good defence against the present action.

The 34th section of the Act of 1834 is directory, and was designed to protect the estates of dead men from those collusive judgments which are sometimes concocted between faithless administrators or executors and pretended creditors, and which have been used as instruments for stripping families of their inheritance. The evil was plainly pointed out, and the remedy indicated by the late Chief Justice Gibson, in Christman’s Executors v. Evans’ Administrator, 13 Ser. & R. 14. Designed for a beneficent purpose, the enactment has received the favorable regards of the Courts. It has not been applied to judgments obtained in the lifetime of the decedent, for they were not within the mischief; but wherever a title, derived through a judgment against the personal representatives, has been set up to defeat the heirs or devisees of a decedent, it has been required to conform to the statutory rule. Such were Keenan v. Gibson, 9 Barr 249, and McCracken v. Roberts, 7 Harris 393, and other cases, which rule that a sheriff’s sale on such a judgment, where the widow and heirs or devisees have not been made parties, does not divest their title. Nothing can be more clear than that the title of the plaintiffs below could not avail them against Judge Wilson’s heirs, or against a party claiming in right of these heirs. But what right have these defendants to take the place of the heirs, and avail themselves of an irregularity which hitherto the heirs have chosen to waive ? It is true, that in ejectment it is a legitimate defence to show title outstanding in a third party; hut, as was said by Judge Huston, in Foust v. Ross, 1 W. & Ser. 506, it must be a valid, subsisting title —not one abandoned, derelict, or barred by the statute of limitations. As long ago as 1799, Bird Wilson, one of the sons and heirs of James Wilson, was brought in by scire facias as administrator of his father, and made defendant in the suit of Hughes, and in 1800 judgment was rendered against him. He is a living man still, but we hear of no record or act of his designed to hinder his father’s creditor, or to impeach titles which have been fairly, purchased at public sales. Now, grant that his title was unimpaired by these sales, is it not abandoned, derelict ? Whether he and his co-heirs could set it up, after so long neglect, is not now the question; but having never manifested the slightest disposition to assert it, the question is, whether strangers and intruders can set it up. On mature reflection we think hot. A sale of lands on a judgment against an administrator is not void as to others than heirs and devisees. In Pennsylvania, lands are chattels for payment of debts; and proceedings to charge them must be instituted against the personal representatives of decedents, whether widows and children be brought in according to the statute or not. Land levied is in the custody of the law, and on suitable process may be sold for such interest as is bound by the judgment and execution; and though the sale may not conclude heirs and legatees, strangers and intruders may not treat it as-if it had never occurred — if void as to those within the statutory protection, it is a judicial proceeding that binds those who are not within either the letter or the reason of the enactment. When a party shall present himself claiming under the heirs of Judge Wilson, it will be soon enough to consider the effect of the- long delay and inaction which have attended their title, and to decide whether they are concluded or not; but until that happens the inquiry will be impertinent and superfluous.

The fact that the proceedings were had in the Circuit Court, neither limits nor extends their effect. In Thompson v. Phillips, 1 Bald. 246, it was held that the Act of 1798, limiting the lien of judgments, applied to and operated on judgments in the Circuit Court; and by parity of reason, all subsequent legislative rules would be applicable to judgments in that Court, so far forth at least as they affect real estate within the jurisdiction of Pennsylvania. On these grounds we hold the Court were right in admitting in evidence the record of the judgment and proceedings against Judge Wilson, and in ruling them to be sufficient to transfer his title.

Next as to the statute of limitations. Henry W. Conrad entered under a deed which embraced the land in controversy, and which was color of title thereto. Occupying and improving part of the land conveyed to Mm, be would, according to the modern doctrine, be entitled to hold, under the statute, all the land within the lines of his colorable title, provided he continued to claim up to those lines. But Ms vendor, Lengle, claimed only a preemption right, and Conrad entered as a settler. When he took his warrant and made his survey in 1818, he defined his boundaries, not according to the deed of Lengle, under which he entered, but by a line run and marked on the ground which excluded the land in controversy. Had he included this land Ms office right would have been no title, for it was not vacant land, but had been long before surveyed on the Lengle warrant, under which Judge Wilson acquired title; but it might have secured to him the protection of the statute by not negativing his constructive possession. A settler on vacant land, who takes in part of a surveyed tract, and maintains his claim for twenty-one years, may acquire title to it under the statute of limitations, whilst perfecting his title to the vacant land under the pre-emption statutes. But the doctrine of constructive possession, indulgent as it is, is a mere implication or presumption of law from the facts of entry and continued claim according to expressed boundaries, and therefore may be rebutted by acts and admissions on the ground. When a man has assigned unequivocal limits to his possession — has said, by marking Ms line, thus far and no further do I hold — it would bo absurd for the laAV to impute to Mm a possession beyond the self-prescribed bound. How gross the injustice this absurdity would work to a neighboring owner, who, seeing the line far from his own tract, would not dream that an action of ejectment once in twenty-one years would be necessary to protect his property, was well depicted by the lato Judge Coulter in Altemus v. Trimble: 9 Barr 233.

On the ground that Conrad defined his boundary short of the land in controversy, we cannot treat him as in the constructive possession of it; and as he had no actual possession of it, he acquired no title to it under the statute of limitations, and of'Course those coming after him have none.

The case is so wretchedly presented in the paper-books, that we cannot feel sure of all our facts; but so far as it is possible to obtain them from what is before us we see no error in the record.

The judgment is affirmed.

Lewis, J., dissented. Lowrie, J., was absent during the argument. Black, O. J., and Knox, J., concurred in the judgment.