text:
    Commonwealth versus Sankey.
    A person wrote a promissory note for $141.26, and fraudulently read it to another, who was unable to read, as a note for $41.26, and procured him to sign it as the maker. Held, that this was not a forgery.

    Error to the Quarter Sessions of Lawrence county.

    Indictment against E. R. Sankey. The bill of indictment contained three counts: one for forgery and causing to be forged and counterfeited a promissory note; the second for forging and altering a note; and the third for uttering and publishing a false and altered note. The defendant was convicted generally; but the Court, entertaining doubts as to whether the case amounted to forgery, granted a new trial; and on 16th April, 1852, a special verdict was rendered. It was to the following effect, viz.: That, on the 12th October, 1850, Daniel Jones was indebted to the defendant, E. R. Sankey, in the sum of $41.26, a balance found due on settlement; and being so indebted, he authorized the defendant to write a paper, to be signed by Jones as a promissory note, for $41.26, payable to the defendant, six months after date. That the defendant, falsely and fraudulently, wrote the paper described in the indictment, except the signature thereof, and presented it to Jones for his signature, it being for the sum of $141.26, and that the defendant read the same to Jones as being for the payment of $41.26; that Jones was an illiterate person, unable to read the paper, and being ignorant of its contents, and relying upon the assertion of the defendant as to its character, he signed his name to it and delivered it to the defendant, who accepted it as being for the payment of $41.26. Also that the defendant, afterwards, viz.: on the 8th February, 1851, uttered, published, assigned, and delivered the said note to J. Sankey, as a valid note for the payment of $141.26, with intent to defraud the said Jones. Whether the facts amounted to forgery, was submitted to the judgment of the Court.
    Agnew, President Judge, delivered the opinion, as follows:

      “ From a recollection of the text writers, especially the case of the unauthorized insertion of a legacy in a will, we thought the defendant was guilty of forgery. A further examination made the matter doubtful, and upon a full investigation of the authorities, we feel the case one of too much uncertainty to justify us in passing sentence, preferring to leave the point to the decision of a higher tribunal, whither we hope it may go, to settle at once a vexed and an important question. The téxt books bear out our recollection of the will ease, as stated to the jury on the first trial, commencing with 3 Inst. 170, and passing down through 2 East’s P. C. 855; 1 Hawk. P. C. cap, 20, sects. 2 and 6; Bacon’s Abridgment, title Forgery, A; 2 Russel’s C. L. 318, 322, and others of’ modern date. But a reference to the authorities quoted by these elementary writers, results in all being founded upon the case in Noy 101, reported also in Moore 769, and that of Sir John Marvin’s will, in Dyer 288. The former decides that an omission of a thing to be put in a will is not a forgery; though if the omission changes an estate devised so as to increase it, as an omission of an estate for life, by which a remainder is made to vest immediately, it is. The case, however, is a Star Chamber case, and of little authority, and is impugned by the case in Dyer 288, where it is held, if one who writes a will of a man lying mortally sick, insert a clause in it after the testator is speechless and without memory, and he did not command the writer beforehand to put in that article or clause, it is not forgery under the 5th Eliz. chap. 14, (the general statute on the subject of forgery.) But, singular as it may seem, the case of Sir John Marvin’s will, in Byer, has been quoted by all the text writers, as authority that this unauthorized insertion of a clause in a will is a forgery; the error commencing with Sir Edward Coke, in 3 Inst. 170.
    There is, therefore, no weight of authority in the antiquity or the number of the English text writers on this subject, when their source of information is searched out. In Rex v. Hart, 1 Moody 486, (2 English Crown Cases 486,) it was unanimously decided by the English judges, that to fill up a blank acceptance for ¿6500, when the party was authorized to fill it up only for ¿6200, is forgery. But there the acceptor had already given his signature, besides marking the amount ¿6200, in pencil marks on the margin of the bill, and intrusted to the defendant. Having put the paper out of his possession, it was now in,the hands, of another, who clearly made a false instrument, when inserting £6500 over the acceptor’s name. But in the present cáse the signer of the instrument had not put the paper into circulation, and by ordinary caution had the power to prevent imposition; and the act consists not in the making of a false instrument, or alteration of one that is genuine, but in the false suggestion by which the signer is induced to subscribe his own name. • If, however, there were weight in this ease, it seems to be counterpoised, or, it may be, overruled in the case of Regina v. Collins, and Regina v. Chadwick, 2 Moody & Robinson 461 and 546, as cited in Arehbold’s C. L., last edition, 429, where it is said not to be forgery, fraudulently to induce a person to execute an instrument on a misrepresentation of its contents, or to procure his signature to a document, the contents of which have been altered without his knowledge. We have not been able to get the works containing these cases, which are very recent, but if the abstract of them in Archbold be not unfounded, they are full to the point. Besides, Rex v. Hart is directly contrary to Putnam v. Sullivan, 4 Mass. 53, where it "was held not to be forgery where blanks were left with a clerk, for specific purposes, and another by, false pretences (viz. by asserting that one blank got by him for a proper purpose had been spoiled in filling it up, whereby he got a second) obtained one of these blanks and wrote upon it a note for a different purpose. And it was there said it would not have been forgery in the clerk even had he used them for his own purposes.
    The case chiefly relied upon by the Commonwealth, is the State v. Shirtliff, 6 Shepley 371, 18 Maine Rep., where the defendant having written a deed which the grantor agreed to and appointed the time to execute, in the meantime wrote another for a larger quantity of land and procured the grantor to sign it, under the belief that he was executing the one he had assented to, and it was held to be forgery. C. J. Weston cites 2 Russel 317, which in turn refers to 2 East 855; Noy 101, Moore 759; 3 Inst. 170; 1 Hawk. cap. 21; Bacon, tit. Eorgery, A, before alluded to. The opinion puts it on the ground, that the signature to a false instrument, in a moral and legal point of view, is as much imputable to the defendant, as if he had done it with his own hands, and that it does not lessen the tyrpitude that the injured party was made the involuntary agent of effecting his purpose. If every false pretence or fraud,were a forgery, the argument would be conclusive; but forgery is only one species of fraud; and that it is one of the highest penalty is the strongest reason why the citizen should not suffer its punishment unless guilty of the specific offence.
    Besides, that case differs from this one in this feature: There the defendant substituted another, an entirely false made writing in lieu of the one agreed to. Here there was but one writing, and its signature merely induced by falsehood. The case of Shirtliff rests on authority shown to amount to but little, and reasoning which is inconclusive; while it, at the same time, differs from the one before us in .the important fact stated.
    “ The authority of that case is met by that of Jonathan Hill v. the State of Tennessee, which is an exact parallel of the present, and runs on all fours with it. There the special verdict sets forth that the defrauded was merely illiterate; ¿he defendant wrote the note in question for $100, when it should have been for $65; and falsely and fraudulently read it to the former as a note for'$65, who thereupon signed it. This is decided not to be forgery, and a much more elaborate opinion given than that in Shirtliff’s case. The case of Woodward is therein also referred to: Leech C. L. 783, where a soldier was induced to sign his own name to a fabricated country bank-note; though done knowingly and for the purpose of fraud, it was held no forgery; the Court saying the prisoner must be acquitted of necessity, for that being signed by his own name, it could not be a false instrument, and therefore was not a forgery. Peck, Justice, in delivering the opinion, says: “ But it cannot be pretended that any false word .uttered to induce .real signing of an instrument can make forgery under our statute, because (as) the party himself signed this deedprimd facie, it is his hand; and to avoid it, proving the facts found, he must, under the law, plead a special non est factum, to wit: confess he did seal the instrument but that he was induced to do it by false reading, and therefore not his deed. The facts make out nothing more than a cheat, for which the party might be indicted.” In conclusion, , amid this confusion of opinion and contrariety of decision, we think it unsafe to pass a sentence, which, however readily it may be removed by a pardon, must inflict a disgrace ’ that cannot be wiped out; and, indeed, we may add, that the weight ,of authority and of argument, on examination, appears to fall rather upon, the side of the defendant.
    “We therefore adjudge, that the facts set forth in the special verdict do not amount to forgery and are insufficient to support the indictment, and therefore discharge the defendant without day.”
    It was assigned for error, that the Court erred in deciding that the facts found did not amount to forgery.
    The case was submitted. ,

      Cunningham and McGruffin were on part of the Commonwealth.
    In the printed argument, as to what constituted forgery, was cited 2 East, P. C. 855; Wharton C. L. 304. It was stated to have been decided to be forgery for a man, ordered to draw a will for a sick person, to insert legacies in it without authority: Id. and 2 Russ. C. L. 318. So, if, by omission of a bequest in writing a will, a material alteration is caused in the limitation over of a bequest: 1 Hawk P. C. c. 70-75-6; Russ. C. L. 322. The Court below said that this last doctrine rested upon a Star Chamber case, and was impugned by the case of Marvin’s Will, in Dyer 288. But it was said that in 1 Hale, P. C. 684, is the following: “The inserting of a clause in a will, purporting a devise of lands without warrant or direction of the devisor, is the forging of a will within the statute (5 Eliz. cap. 14), though the whole "will be not forged, and although done in the testator’s life by the clerk that writes the will: Co. P. C. ch. 75.” Note.—“ This was when the testator was speechless; but if he had his understanding and assented to it, or published it afterwards, it is no forgery, though at first written without his dictation.” It was therefore intimated that the report in regard to Marvin’s Will, in Dyer, was perhaps incorrect. That the offence charged in this case was a forgery, further eases were cited, viz.: It is forgery if a parson find another’s name at the bottom of a letter at a considerable distance from the other writing, and causes the letter to be cut off and a general release to be written above the name, and then take off the seal and fix it under the release: 2 Russ. C. L. 318; 3 Inst. 171. Also cited Wharton C. L. 304, citing 5 Esp. 100. So, if a person having a blank acceptance of another, authorized to write on it a bill of exchange for a limited amount, write a bill of exchange for a larger amount, with intent to defraud the acceptor or a third person, it is forgery: Rex v. Hart, 7 Car. & P. 652; 1 Mood. Cr. Cas. 486. Reference was also made to the case of The State v. Shirtliff, 6 Shepley 368. (This case is cited by Agnew, J.)

      Taylor was for defendant.
   The opinion of the Court was delivered by

Black, C. J.

The defendant wrote a note payable to himself, for $141, and got an illiterate man to sign it, by falsely and fraudulently pretending that it was for $41 only. On a special verdict finding these facts, the Court gave judgment in favor of the accused.

The act was a forgery according to all the text writers on criminal law, from Coke to Wharton. But their doctrine is not sustained by the ancient English cases, and is opposed by the modern ones. Only three American decisions were cited on the argument; and we take it for granted that there are no 'others on the point. Two of these (4 Mass. 45, 1 Yerger 76), are wholly with the defendant, and the other (6 Shepley 371) supports the argument of the Commonwealth’s counsel. The weight of the judicial authorities is in favor of the opinion that this is no forgery. We think that the arguments drawn from principle, and the reason of the thing, preponderate on the same side. It must he admitted that, in morals, such an imposture as this stands no better than the making of a false paper. But even a knave must not be punished for one offence because he has been guilty of another. Forgery is the fraudulent making or altering of a writing to the prejudice of another’s right. The defendant was guilty of the fraud, but not of the making. The paper was made by the other person himself, in prejudice of his own right. To complete the offence, according to the definition it requires a fraudulent intent and a making both. The latter is innocent without the former, and the former, if carried into effect without the latter, is merely a cheat. If every trick, or false pretence, or fraudulent act by which a person is induced to put his name to a paper which he would not otherwise have signed, is to be called a forgery, where shall we stop, and what shall be the rule ? Is it forgery to take a note for a debt known not to be due ? Or to procure a deed for valuable land by fraudulently representing to the ignorant owner that it is worthless ? or to get a legacy inserted in a will by imposing on a weak man in his illness ? All these would be frauds—frauds perpetrated for the purpose of getting papers signed—as much as that which was committed in this case. But no one thinks they are forgeries.

For these reasons, and the reasons given in the Court below, which we fully adopt, the judgment is to be affirmed.


source: Caselaw Access Project

author: Knox, J.

license: Public Domain

text:
    O’Neal versus Rupp.
    1. l’ke right to judgment for insufficiency in the affidavit of defence may be waived.

      2. A party who intends to ask for judgment on account of an insufficient affidavit of defence, must do so before he takes any further steps in the cause, subsequent to the affidavit, which are calculated to mislead the defendant.
    3. It is too late to move for judgment on account of insufficiency in the affidavit of defence, after a rule to plead and plea entered, and rule to arbitrate entered on part of the plaintiff and stricken off, and nearly five months had elapsed before judgment was asked for.
    Error to the District Court of Allegheny County.

    This was an action of assumpsit by William P. Rupp, Administrator, &c., of Simeon B. Pearson, deceased, v. James O’Neal, for the price of a lot of ground sold under an order of the Orphans’ Court for the payment of debts. The suit was to January Term, 1853, the writ being returnable on the first Monday of January, 1853, and was served on 17th December, 1852. An affidavit in support of the claim was filed, the claim being for $825, with interest.
    On 28th December, 1852, an affidavit of defence was filed, in which it was, inter, alia, alleged that the title was defective; that the fee .simple to the greater part of the property was vested in third parties, and that the sale did not pass such title as the plaintiff agreed to convey, &c.
    On 18th April, 1853, a rule to choose arbitrators on the 5th May was entered on the part of the plaintiff. On the 24th May, this rule was stricken off at the costs of the plaintiff. On 27 th May, 1853, a rule was granted to show cause why judgment should not be entered for want of sufficient affidavit of defence, the reason assigned being, that “ the facts set forth in the affidavit of defence filed do not amount to a defence in law.” It was stated on the paper-book that, “ on the 18th of June, 1853, the rule to show cause, being regularly reached on the argument list, was by the Court made absolute.”
    Judgment was entered, and the sum was liquidated at $867.62.
    It was assigned for error, that the Court erred in entering the judgment: 1. Because the affidavit was sufficient, fully meeting the plaintiff’s affidavit; and 2. If the affidavit was not sufficient the plaintiff, by his rule to plead, his rule to arbitrate, and by his delay, had waived “ objection to the form and substance of the affidavit of defence, and thrown defendant off his guard.”
    The 66th rule of Court provides, that “ in all actions of debt or assumpsit, when the plaintiff shall file with his precipe an affidavit stating the amount verily believed to be due from the defendant, he shall be entitled to judgment as for want of appearance, unless defendant shall file an affidavit of defence with his' appearance.”

      Woods, for the plaintiff in error.
    It was contended that the affidavit was sufficient. Also that the plaintiff had waived any defect existing in the affidavit. Cited 2 Miles 28, wherein the plaintiff was considered as having waived a right to judgment, not only by not moving for judgment, but by asking and obtaining a plea.

      Geo. P. Hamilton, for defendant in error.
    It was said that the defendant in the affidavit did not allege any eviction by third parties, but simply a defect of title. It was contended that, therefore, the plaintiff had a right to recover the purchase-money: 1 Harris 121, Vandever v. Baker; 6 Harris 199, Sackett v. Twining.
    Further, that the question of waiver was not raised in the Court below, which, in order to have advantage of it even there, he should have done by furnishing, in compliance, with a rule of Court, a paper-book setting forth the substance of the case and the points to be discussed. In this case leave was not asked to file a supplemental affidavit, but the case was rested by the defendant below on the affidavit filed.
   The opinion of the Court was delivered by

Knox, J.

It is unnecessary to determine whether the affidavit did not disclose a valid defence to the plaintiff’s demand, as we are of the opinion that the objection to its sufficiency was not raised in time.

A party who intends to ask for judgment for the reason that the affidavit of defence is deficient, must do so before he has taken any steps in the cause, subsequent to the affidavit, calculated to mislead his opponent.

The writ was returnable in this case upon the first Monday of January, 1858; served on the 17th of December, 1852, and affidavit filed on the 28th December, 1852'.

The plaintiff had his eléction, either to treat the affidavit of defence as sufficient and take the ordinary course to bring his cause on for trial; or to test the validity of the affidavit by entering a rule for judgment. It would seem that he adopted the first branch of this proposition, for, on the 16th day of April, 1853, a rule was taken upon the defendant to plead, and two days afterwards a rule was entered to arbitrate, which last rule was, on the 24th May, stricken off at the plaintiff's instance and costs.

After these steps had been taken, and five months after the affidavit had been filed, the plaintiff obtained a rule for judgment, which was made absolute upon the ground that the affidavit was defective in not setting forth a defence that would be effectual in law.

It may be said that a defendant is not injured by reason of delay in taking judgment; but of this we cannot be certain. It was fair for him to presume that his case would be investigated in open Court and tried in the usual method, and. a prudent man would have provided the means necessary to make good his defence. This would require an expenditure of time and money, besides which, delay is generally injurious even to the losing party.

There is no hardship in holding that a plaintiff may waive his right to question the sufficiency of an affidavit of defence, and we think this case a proper one to apply the rule that he may do so.

It is alleged that this point was not made in the Court below. It does not appear from the paper-book that any notice was given to the defendant or his attorney of the rule for judgment, or that any argument was had upon the rule before it was made absolute.

The record showed that the plaintiff, by his rule to plead and arbitrate, admitted the validity of the affidavit, and an examination of it would properly present to the Court the question now decided. We cannot, therefore, say that this point cannot now be heard because it was not formally made below.

Judgment reversed and procedendo awarded,


author: Black, C. J.

text:
    Shoenberger and Others versus Baker.
    1. From the time that a caveat is entered, until the right to the patent is determined in ejectment, neither party, not being in actual possession, has such a title as will sustain an action of trespass against the other. Therefore, though a party has the decision of the board of property in his favor, ho cannot maintain trespass on such title till the determination of the ejectment instituted by the opposite party.
    2. One who mates the first application for vacant land and obtains a war rant is to be preferred over another who makes an application for the same land, though the former knew when he had his application made out, that the other person had an application for the land prepared previously on the same day, the first applicant not being guilty of fraud.
    Error, to the Court of Common Pleas of Indiana county.

    This was an action of trespass quare clausum fregit for digging and carrying away ore, brought by Elias Baker v. Peter Shoenberger, George S. King, and others. This suit was brought on the 30th June, 1847. It was tried before, and verdict was rendered for the defendants. See a report of the case in 6 Harris 138, &c., under the name of Baker v. King.
    Elias Baker, the plaintiff, exhibited a warrant to William D. McKiernan, dated 6th August, 1844, a survey in pursuance of it, dated 10th August and 13th and 14th September, 1844, for 59 acres 137 perches, covering the land whereon the alleged trespass was committed. McKiernan’s application was executed before two justices of the peace on the evening of the 3d August, 1844; he knowing at the time that David Stewart had an application for the same land prepared previously on the same day. McKiernan enjoined secrecy as to his application, and had it forwarded expeditiously to Harrisburg and first presented; and the warrant was granted, as before stated. McKiernan conveyed to Elias Baker by deed dated 5th December, 1846.

      Stewart’s application for a warrant for 50 acres, under which the defendants claimed, was made out before two justices of the peace on the morning of the 3d August, 1844, and a warrant was obtained thereon on the 7th of that month, viz., the next day after the warrant by McKiernan. No survey was made under this warrant till the 15th and 16th September, 1848, after Stewart had sold his claim to King and Shoenberger. Stewart’s warrant called for fifty acres of unimproved land adjoining other land of his purchased from Samuel Mizner, lands of Clark, Morgan, and Davis.
    A caveat, dated 9th August, 1844, and another, dated 11th September, 1844, were entered on part of Stewart, against the acceptance of the McKiernan survey. It was alleged in one or both of the caveats, that the right to the land was vested in Stewart
      by virtue of an alleged actual settlement commenced about the year 1822, by Thomas Bracken, who sold to Samuel Mizner, from whom Stewart purchased by article of agreement, dated 1st August, 1844. lie did not, in the caveat, claim under Ms warrant of the 7th August, 1844.
    On 2d March, 1846, a decision of the board of property was made in favor of the acceptance of the McKiernan survey. On the 3d April, next following, an ejectment was brought to June Term, 1846, by David Stewart, against McKiernan and Elias Baker. This writ was not served. An alias writ was issued to September Term, 1846. This writ was returned on 3d July, 1847, as served on McKiernan, on 29th August, 1846. It was not served on Baker. The action of ejectment had not been determined when this action of trespass was tried. After the ejectment was instituted McKiernan conveyed to Baker, by deed dated 5th December, 1846.
    It was alleged that Bracken, through whose alleged improvement or settlement Stewart also preferred a claim to the land in dispute, designated his boundaries in 1822, by a survey containing 262 acres and 107 perches, embracing a part of the land in dispute which was covered by the surveys both of McKiernan and Stewart. Stewart, as before alleged, on 1st August, 1844, purchased from Mizner, who had purchased from Bracken. Stewart put up a cabin on the land in dispute, and it was alleged, on part of the defendants, that he had a tenant residing in the cabin on 5th August, 1844, one day before the date of the warrant to McKiernan; that the land was occupied at intervals, by different persons, who were engaged in making roads and digging ore till the commencement of this suit.
    It was alleged in the counter statement, that the land was not occupied for any other purpose than as stated above.
    On the trial, Thomas H. Bracken, called on part of the defendants, testified, in substance, that “ In the evening, quite late, he gave one of his horses to go for a person to vouch for McKiernan as to the land in dispute.” He said McKiernan went ahead to have the application ready; that he expressed great anxiety about Stewart making an application; he enjoined secrecy on us; he wished us not to say anything about his being there; that he understood Stewart was about taking out his application that day. As he was in pursuit of the same object, we went to town. He further said that he afterwards met McKiernan, who said that Stewart had got ahead of him, but that he would take out an application, and send it to his brother that night, and he would beat Stewart to Harrisburg, &c.
    On the trial points were proposed on part of the defendants. The first was: If the jury believe that David Stewart, at the time lie took out Ms warrant, believed that the land embraced within the same, was not within the Bracken improvement, that on discovering the contrary, he was not precluded from relying on the settlement of Bracken. 2. That if McKiernan, knowing that Stewart had an application previously prepared, had his own prepared, enjoining secrecy, so that Stewart might not know it, and in addition made undue haste to forward his papers, and by such means acquired priority, his conduct was unfair and fraudulent, and gave him no title as against Stewart or those claiming under him. 3. That the pendency of the action of ejectment, which was brought in due time, was a bar to this action of trespass, for the reason that if the plaintiff recovered in the ejectment and brought an action for mesne profits, the recovery in the present case would not be a bar to that action. 4. That if Stewart, and King, and Shoenberger, took possession of the land in dispute, claiming it as their own (the plaintiff not being in actual possession), built a house upon it, put a tenant in it, who, and his successor, as their tenants, continued to occupy the land till after the commission of the trespass complained of in this suit, the plaintiff cannot maintain the action though the possession may not have been accompanied with the requisites necessary to make an actual settlement.
    Burrell, President Judge, in Ms charge, in reply to the 4th point, inter alia, expressed the opinion that the possession on part of Stewart,.alleged as commencing in August, 1844, was a scrambling possession, not unbroken; and that such possession, or that of those following, if for the mere temporary purpose of digging ore on this or other land, was not such an actual possession as to oust the constructive possession of the true owner of the tract.
    As to the 2d point, he charged that McKiernan having applied first and obtained a warrant, had priority over Stewart, unless it was shown that he had practised a fraud or deception on Stewart, by which Stewart was misled, delayed, or thrown off his guard, so that McKiernan got the advantage in point of time. But he expressed the opinion that McKiernan’s conduct in telling the witnesses to say nothing of Ms application, and his haste to forward his papers, amounted to no such fraud or deception on Stewart. And if airy such fraud had existed, Balcer seemed to occupy the position of a purchaser without notice, and should not be affected by it.
    He further said, that as to the portion of the land included in the plaintiff’s survey, and which is covered by Stewart’s survey, but not included in the designation of boundary by Bracken, the plaintiff seemed to have the better title. That there is a portion of the land covered by both surveys, and also included in Bracken’s designation of boundary. As to this, the plaintiff contends that Stewart, by having included this portion in the survey under his warrant, lost the benefit of his prior title under the Bracken improvement ; and this we think is the result.
    The 3d point was answered in the negative. He observed that the plaintiff in this action of trespass was the defendant in the ejectment, and that if he succeeds in the ejectment he cannot follow it by an action for mesne profits, having been in possession himself. That such action can be brought only by a plaintiff in ejectment who recovers.-
    September 30, 1852, verdict for plaintiff for $350.75.
    It was assigned for error, 2. In refusing to permit the defendants to show that they and those under whom they claimed, entered on the land in question before the survey on the McKiernan warrant; that the land was incapable of use except for taking ore and timber; that their occupancy continued from the building of the house on 5th August, 1844, till the commencement of this suit, &c. 3. In charging in answer to the first point, to the effect, that a settler, after designating his boundaries, may take out a warrant without reference to his settlement, and include in' his survey a part of the unimproved land included in his designation of boundary as a settler ; but that if he does so, he abandons his settlement right as to the part included in the survey. 4. In the answer to the 2d point, as to 'the effect of the knowledge and conduct of McKiernan. 5. In answering the 3d point in the negative. 6. In the answer to the 4th point, as to the original possession by the tenant of Stewart in August, 1844, and as to the possession of others following him.
    Banks, for plaintiff in error.
    It was, inter alia, contended that the defendants were in the actual possession of the land, and that Baker, the plaintiff, not being in possession could not maintain trespass. Residence is not necessary to constitute adverse possession: 3 Ser. & R. 291; 1 Ch. Pl. 175; 1 Barr 238-40; 2 Id. 291; 4 Yeates 218; 1 Johnst. 511; 3 Ser. & R. 509, 513; 10 Id. 114.
    As to the 4th assignment, it was contended that McKiernan, having knowledge that Stewart had had his application prepared, was guilty of fraudulent conduct in having an application subsequently made, enjoining secrecy as to it, and by unusual haste in forwarding it. Also that the ejectment by Stewart, instituted on 3d April, 1846, served on McKiernan on 29th August, 1846, was notice to Baker, who purchased during the pendency of'the action, his deed being dated 5th December, 1846: 1 Yeates 547; 2 Pa. Rep. 449.
    It was said that the evidence as to McKiernan’s knowledge was different on this trial from that stated on the former one, reported in 6 Harris. It was said that on the first trial it appeared that McKiernan came to the knowledge of the preparation of the application by Stewart when he was at the justice’s office to have his own prepared; but that on this trial it appeared that he knew before he started for the justice’s office that Stewart had had his application prepared, and that he enjoined secrecy in order to prevent Siewart from obtaining a knowledge of his application, &c. It was further said, that Chambees, J., (6 Harris 143,) repudiated any design to impugn the decision in Mix v. Smith, 7 Barr 75, where it was said by Gibson, O. J., that the origin of the written title was the certificate of the justices. It was contended that that case and the decision on the present case, in 6 Harris, were irreconcileable. Reference was made to 8 Ser. & R. 181; and to 1 Harris 469, as to notice.

      Stewart, for defendant in error.
    It was contended that the land in dispute being uncultivated, the plaintiff’s warrant gave him a constructive possession such as to maintain trespass. That the warrant being descriptive, gave title from its date. That the occupancy at intervals by different persons, in making roads and digging ore, was not such an adverse holding as ousted the constructive possession of the plaintiff. That as a portion of the land was covered by both surveys, and also included in the Bracken designation of boundary, Stewart, by including this latter portion in his survey under his warrant, lost the benefit of his prior title under the Bracken settlement, and must rest on his application and warrant, which, being later than that of the plaintiff, must give way to it. That McKiernan’s injunction of secrecy, and his haste in forwarding his application to the land office, did not amount to such deception or fraud as to postpone his right. But even if there was fraud, that Baber, being a bond fide purchaser under deed made after the decision of the board of property, without any notice of claim under the warrant of Stewart, or in the writings to obtain it, was not affected by it.
    It was contended that constructive possession is sufficient to maintain trespass: 6 W. & Ser. 323; 3 Ser. & R. 513. A settlement for temporary purposes does not give an improvement right: 2 Barr 55.
    In answer to the 4th assignment he referred to the decision in this case, in 6 Harris 142, as to the priority of the applications. It was contended that the decision in Mix v. Smith, 7 Barr 75, did not conflict with it. That the case of Mix v. Smith was a conflict between a warrant holder and a subsequent improver; this is a conflict between two warrant holders.

    As to the 5th assignment, it was alleged that the action for mesne profits can be sustained only after recovery in ejectment, where the possession has been wrongfully withheld from-the party recovering.
   The opinion of the Court was delivered by

Black, C. J.

This case has some points of more than usual interest, which are presented in the charge of the Court below with great clearness and precision. But after considering it with much care, we have all reached the conclusion that we must reverse the judgment for a reason apparently not much thought of on the trial, and which, as it puts an end to the action, makes any reference to the other questions unnecessary.

The suit is trespass for digging ore on land to which both parties claim title. The plaintiff is the owner of a warrant to William I). McKiernan, dated the 6th of August, 1844. David Stewart, who has since conveyed to the defendants, took out a warrant one day later. Their applications are dated both on the same day (namely, September 3), but Stewart’s was in the morning, and McKiernan’s in the evening, after he knew of Stewart’s. The somewhat doubtful question which arose on these facts—I call it doubtful, because there are decisions upon it by this Court which seem to conflict with one another—came up before the board of property on a caveat, and was there decided (March 6, 1846) in favor of McKiernan. Within six months afterwards ejectment was brought by the losing party, agreeably to section 11 of the act of 3d April, 1792, which is still pending.

We hold the opinion which the Court of Common Pleas did not, that the right of either party to maintain trespass against the other for an injury done to the land in dispute, is suspended until the title shall be finally settled in the ejectment. We do not mean to say that one in actual possession may not bring trespass for an interference with any of those rights which the law gives to every peaceable occupant. But in this case the plaintiff recovered by virtue of his title alone, and the constructive possession supposed to result from it; and that, too, in the face of some evidence (we do not say enough) to show that his adversary had the possession.

The statute makes the determination of the board of property conclusive upon all parties to the caveat who are sui juris and not beyond sea, unless ejectment be brought within six months. It gives the action by way of appeal from that decision, and when judgment is pronounced by the Court, the patent which issues thereupon is a full and perfect title to him who gets it. But in the mean time, no patent can issue to either, because, until the suit is ended, one has as good a right as the other. Who shall have the patent, is a question which can be tried in no other way than that designated by law. The judgment will be conclusive when it is rendered, but we have no authority now, in a different action, to anticipate- what it will be by considering what it ought to be.

When a statutory remedy is given, it must be strictly pursued, and all common law proceedings to the same end cease to be available. If the plaintiff succeeds in getting a patent under the law which authorizes the ejectment, his wrongs can then be fully redressed. His title will not only be full, perfect, and indisputable, but it will relate back to the period of its inception, and give him all the rights which he would have had under it if no caveat had been entered. In the mean time, the writ of estrepement, or a bill in equity, will prevent any irreparable waste. The act covers the plaintiff’s case; it serves his whole purpose, and gives him all he can ask without grasping in advance at the fruits of a title which he has not yet got, and which we cannot be sure that he ever will get.

On the other hand, suppose, what is possible enough, that the plaintiff, after recovering in the trespass, should lose in the ejectment; he would then have in his pocket the amount of this judgment, with conclusive evidence on the record that it does not, and never did belong to him; and while the law would acknowledge the error of giving him damages for a trespass which was never committed, it would be powerless to make him refund, since it furnishes no remedy for a wrong perpetrated in pursuance of its own process, or in accordance with its own decrees. The absurd inconsistency of holding that one who is the absolute owner of land shall pay damages for using it, to another whose claim is utterly void, would scandalize the administration of justice.

The ejectment is to be determined without reference to anything except the opposing title. The scales are so adjusted as to contain nothing on either side of them but the legal rights of the parties under their respective applications, warrants and surveys; and care has been taken to blow away even the dust of the balance. The party who has the decision of the board in his favor is fictitiously deemed to be in possession, but it is provided in the act that “such supposed possession shall nevertheless have no effect upon the title.” The object is to get a decision precisely such as the board ought to have given upon a view of the papers in the land office, and such facts in pais as may legally modify the effect of the recorded documents. But in an action of trespass the result may often depend on mere accidental circumstances. Possession, for instance, of one or the other party may be a fact so controlling, that the question of title would be left wholly out of sight. This case, indeed, came very near being one of that kind. If the actual occupancy of the defendants had been a little better made out, they would have taken the verdict on that ground alone. If this had happened, could the plaintiff, in case he should get the patent afterwards, recover for the same trespass in another action upon any principle except that the first action would not lie ? I ask this question not to answer it (for that would carry us beyond the record), but merely to suggest a difficulty which may as well be avoided. At any rate, here was a trial of the title in a way not'authorized by the statute, in which the parties were exposed to the danger of a decision on grounds different from those on which it might be finally settled.

If the board of property had authority to decide upon the title finally or with an appeal directly to this Court, the impolicy of permitting a different Court to adjudicate the same question in another form of action would be very apparent. In principle the case is made no way different by the fact, that the appeal from the board is to the Common Pleas. A tribunal to which an act of Assembly gives appellate jurisdiction has no more right to take original cognisance of the same subject while the appeal is pending, than it would have if the right to hear the appeal had been given to another.

We therefore decide that from the time the caveat is entered, until the right to the patent is finally determined, neither party (supposing him not in possession) has such a title as will sustain trespass against the other. An action brought afterwards by the patentee will lie for all injuries committed pending the dispute, and this, together with the writ of estrepement, is a sufficient protection to him who is finally adjudged to be in the right. It would not be proper now, to say what remedies may be had against strangers. It is. enough to add, that no rule here laid down applies to actions by or against persons not parties to the caveat.

Although it be not necessary for the purposes of this case to advert to any other of the points ruled below, yet as the others are fairly before us, and were carefully and well argued, we have concluded, for the purpose of saving future trouble, to express our conviction that there is no error in what the Court said about the warrants. The earlier warrant is the better title. We. cannot recede from the rule which this Court established when the case was here before. It is the settled policy of the law, to make land titles depend as much as possible on written evidence. When two warrants are taken out on the same day, the record will show which is the elder one. But the priority of- applications which bear even date, can only be determined by parol, and then, according to the doétrine of the plaintiff in error, the. right is not settled without showing that the later applicant knew what had been done by the other. In a title twenty years old, what chance would there be of proving the .truth concerning such facts as these ? Great uncertainty would be the necessary consequence. And cui bono ? Merely to restore to a slow man the advantage •which another has achieved by swifter motion. Of course I am speaking of cases in which there is no fraud. A party does no wrong who desires vacant land and tries to get it, though he may know that • another is moving under the same impulse. It is no imputation on the fairness of the race that the winner was behind at the start.

Judgment reversed and venire de novo awarded.

Lewis, J., dissented from so much of the opinion as passed upon the titles of the parties. His reasons have been filed.


author: Lewis, J.-

text:
    Galbraith versus Fisher.
    1. A sale of real estate by the assignee of a bankrupt made under the provisions of the Act of Congress of 1841, not made by virtue of any decree of the District Court of the United States by which the bankrupt was discharged, did not discharge the property from the lien of a judgment existing against the bankrupt in the Common Pleas of the county wherein the land was situated, and binding the property at the time of his application for the benefit of the Bankrupt Act, the lien of the judgment having been duly preserved, and a levy made on the land under it at the time of the said application.
    2. A sale of the property under such judgment, made after the sale by the assignee in bankruptcy, passed to the purchaser at the sheriff’s sale a title superior to that of the purchaser from the said assignee, the lien of the judgment being a valid lien by the laws of Pennsylvania, and the debt therein not being judicially questioned.
    3. The sale by the assignee transferred to the purchaser merely the title which the bankrupt himself might have conveyed, at the time of his application for discharge — viz. a title subject to the existing liens upon the property.
    Error to the Common Pleas of Erie county.

    This was an action of ejectment by John Galbraith v. Peter Fisher, to May Term, 1850, in the Common Pleas of Erie county. The plaintiff claimed title under a sale by an assignee in bankruptcy ; and the defendant claimed under ‘a subsequent sale under a judgment against the bankrupt which existed at the time of his application for the benefit of the Act on the subject of bankruptcy, and under which the property had been levied on at the time of the said application.
    A stated case was agreed upon to be considered in the nature of a special verdict. It was to the following effect:—
    Both parties claim title to the land and premises in dispute from Simeon Dunn, who was the owner thereof on the 5th day of June, 1839, and so continued until divested of his ownership by the proceedings hereinafter mentioned.
    On the 24th day of June, 1843, the said Simeon Dunn was duly declared and decreed a bankrupt, and upon due proceedings had, in pursuance of the Act of Congress entitled “An Act for establishing a uniform system of bankruptcy throughout the United States,” passed the 19th day of August, 1841, was discharged in the District Court of the United States, Western District of Pennsylvania, and James H. Armstrong appointed his assignee; all whereof was on the same day duly certified.
    On the 1st day of November, 1844, the said James II. Armstrong, as assignee aforesaid, in pursuance of, and by force and virtue of the power and authority vested in him by law for such purpose, duly sold, and by deed of that date conveyed the said land and premises, under and according to the several provisions of the said Act of Congress, unto Carson Graham, his heirs and assigns.
    On the 30th day of August, 1848, John Galbraith, the plaintiff in this cause, obtained a judgment in this Court against said Carson Gfraham for the sum of $6000, and after due proceedings were had therein for that purpose the said premises, by virtue of a writ of venditioni exponas to August Term, 1850, No. 54, were sold to the said Galbraith, and a deed by the sheriff, dated the-7th day of February, 1850, was, upon the 8th day of February, 1850, acknowledged, and delivered to him.
    On the 5th day of June, 1839, Charles M. Reed obtained a judgment in the Common Pleas against said Simeon J)unn, for the sum of $523.26, entered to May Term, 1839, No. 277. To May Term, 1842, No. 45, a seire facias was issued upon said judgment, and a judgment thereon was entered for $613.48, on the 10th day of May, 1842. Upon this judgment a writ of fi. fa. to May Term, 1843, No. 76, was issued, and a levy by virtue thereof was made on the premises in dispute, on the 15th day of April, 1843;' and, after the application in bankruptcy, an inquisition was held, and condemnation had with an appraisement, according to the then existing law, at the sum of $2500; and subsequently thereto sundry writs of venditioni exponas were issued thereon, and by virtue of the third pluries writ to February Term, 1845, No. 122, the sheriff of said county sold the said premises to said Charles M. Reed, on the 1st day of February, 1845, for the sum of $560, and a deed thereafter in pursuance thereof, was by the sheriff duly acknowledged and delivered to said Reed.
    It was further stated that of -the time of the decree in bankruptcy, and of the appointment of the assignee, the said Charles M. Reed had due notice, as also of the decree, appointment, and proceedings; and it was stated that his. said debt and judgment against said Dunn was provable therein according to the several provisions of the said recited Act of Congress, of 19th August, 1841.

      If, upon the foregoing state of facts, the Court were of opinion that the title and right to possession of the premises in suit, is in the plaintiff, then judgment to be entered for plaintiff generally, with costs of suit; but if the Court were not of that opinion, then judgment to be entered for defendant for costs.
    Subsequently, without argument and pro forma, the Court entered judgment for defendant.

    It was assigned for error, that the Court erred in entering such judgment.
    Church, for plaintiff in error.
    It was observed that it was not contended that the decree of bankruptcy destroys the lien of a judgment; but that where the assignee sells the property according to the Act of Congress, the lien creditor must look to the assignee, and cannot follow the property: sec. 3, of the Act of Congress. The liens preserved by the last proviso to the second section, are in terms made subject to the laws of the respective state; and therefore whatever affects them under the latter, will also affect them under the Bankrupt Act. It was therefore said that the two questions presented in the case were, 1st, Whether a judicial sale divested the lien of the judgment; and, 2d, Was the sale by the assignee judicial in its character and consequences.
    That purchasers of land at judicial sales in Pennsylvania, take the-property discharged of encumbrances, is the settled law of Pennsylvania: 16 Ser. & R. 410.
    2d. The assignee is but a legal trustee of the creditors, he obtaining the title by operation of law, as the result of a judicial decree; and it was said that sales by him can he made only by order and appointment of the Court, and the distribution of the proceeds is subject to judicial control; sections 3, 9, 10, of the Act of Congress. Reference was made to the opinion of Rosees, J., in 7 Barr 88; also to 1 Harris 102.
    Whether, after the decree, the judgment creditor could sell, it was said was necessary to be decided in this case; but if he could sell, then it was alleged that either he or the assignee could sell, but that both could not. That when either sold, the power was exhausted. That it would be subversive of legal propriety to sell the same property twice by distinct legal process. It was stated that the plaintiff did not seek to avoid the lien of the judgment so as to destroy its preference out of the funds arising from the sale.

      Marshall, for defendant in error.
    Whether a sale by the assignee be judicial or not, it was contended made no difference in this matter, as by a provision of the Bankrupt Act liens of judgments were preserved ; that all that the assignee takes is the right of the bankrupt over and above the encumbrances. He is vested by the Act with “the titles, powers,’ and authorities,” to dispose of the property as fully as “ might be exercised by such bankrupt before or at the time of such bankruptcy declared.” It was further alleged that if the assignee makes distribution, he can only pay pro rata, and if a lien creditor claim out of the fund, he will lose his specific lien: Cullen on Bankruptcy 145-149.
    Reference was made to the decision by Baldwin, J., in the case of John Kerlin, a bankrupt, 3 Howard 326; and also to the case of Norton’s Assignees, 3 Howard 437; 440.
    It was also observed that by the laws of Pennsylvania, creditors contesting in the course of distribution,..have a right to trial by jury ; whereas, under the Bankrupt Act, the Court alone decides questions in dispute. If the jurisdiction in the' state and District Court is concurrent, that of the former first attached in this case, as the property was levied on before application by the bankrupt.
    It was observed that in judicial sales in Pennsylvania, there is something to be done by the Court after the sale; but that as to sales by an assignee in bankruptcy, no action by the Court is required.
    The same land may, in Pennsylvania, be sometimes sold twice, ás where it is first sold subject to a first mortgage', and afterwards by process under it.
   The opinion of the Court was delivered by

Lewis, J.-

-The plaintiff in error claims the land in controversy

under a sale, stated in the case to have been made by James H. Armstrong, assignee of Simeon Dunn, “in pursuance of and by force and virtue of the power and authority vested in him by law for such purposes,” and a deed of the 1st November, 1844, “ duly and regularly made by the said assignee, under the Act of Congress to establish a uniform system of bankruptcy.”

The defendant in error claims the land under a sheriff’s sale, made in pursuance of a judgment against the said Simeon Dunn, recovered in the State Court on the 5th June, 1839, revived by scire facias on the 10th May, 1842, a fieri facias to May Term, 1843, and a levy made on the 15th April, 1843. The levy upon the land by virtue of the process issued out of the State Court, was made before the application in bankruptcy, but the sheriff’s sale took place afterwards, on the 1st February, 1845.

The District Court of the United States is a Court of limited jurisdiction, and possesses no authority in bankruptcy, except that which is conferred by the Act of Congress of 19th August, 1841. That Act expressly directs that nothing contained in it “ shall be construed to annul, destroy, or impair” any liens, mortgages, or other securities on property, real or personal, which may be valid

d by the laws of the states respectively, and which are not inconsistent with the provisions of the second and fifth sections of the Act. It is not pretended that the judgment in the State Court was obtained under circumstances which brought it within the condemnation of the second section, or that it lost its lien by any of the Acts enumerated in the fifth section. Nor is it denied that it was a valid lien by the laws of the state. That lien, according to the plain and express provisions of the Act of Congress, was therefore unimpaired by that Act. We concede that in a case where it becomes necessary to the legitimate action of the District Court to call the judgment creditor before it, to examine into the nature of his claim and make a decree in regard to it, the lien might thereby be affected. But there is no such decree in this case, nor does it appear that any necessity whatever existed for any such proceeding. It is not set forth in the case, that the sale by the assignee in bankruptcy was made under a decree of the District Court. On the contrary, it is stated to have been made by the assignee, not by the Court, “ under the power and authority vested in him by law,” and not by force of any judicial decree. It is therefore the case of an ordinary sale of an assignee in bankruptcy, under the usual supervision of the Court, but without any notice to the judgment creditor, or any decree affecting his rights. That we may ascertain the effect of that sale and the extent of the interest which passed to the purchaser under it, we have only to inquire into the extent of the interest ahd powers acquired by the assignee himself, by virtue of the proceedings in bankruptcy. As the stream cannot rise higher than its source, the assignee cannot confer any better title than he has himself acquired. On this subject the Act of Congress is as plain as it is in relation to the preservation of liens existing under the laws of the states. It is provided by the Act, that the assignee “shall be vested with all the rights, titles, powers and authorities to sell, manage, and dispose of (the property and rights of property of the bankrupt), and to sue for and defend the same, subject to the orders and directions of such Court, as fully, to all intents and purposes, as if the same were vested in or might be exercised by such bankrupt, before or at the time of his bankruptcy declared.” Now it cannot be thought, fór a moment, that the bankrupt himself, either “before or at the time of his bankruptcy declared,” had any interest or power, by the disposition or exercise of which the lien of a previous judgment could have been in any manner impaired. No sale made by himself would have affected such lien in any manner whatever. He had the right to redeem the land or discharge it from the lien by the payment of the money to the creditor. He had also the right to sell his interest subject to the lien. These are all the rights which the bankrupt himself possessed, and these are, therefore, the only rights yvliicL passed to the assignee. It follows that the sale by the assignee must necessarily be subject to the lien of the judgment.

But the case does not rest solely upon these provisions of the Act of Congress. There are others which confirm the construction we have given. The 10th section expressly directs, that the funds arising from the assets of the bankrupt shall be divided among the creditors who have proved their debts; and the 5th section directs that all the creditors who prove their debts shall be entitled to “ share in the bankrupt’s property and effects, pro rata, without any priority or preference whatever,” with certain exceptions not material to the present question. So that if the sale by the assignee gives the purchaser a title discharged from the lien of the judgment, and the Act distributes the fund pro rata, without any regard whatever to its just “priority or preference,” its lien is not only “impaired," but absolutely “annulled” and “destroyed.” But the Act of Congress is still more explicit on this subject. If the assignee does not think proper to sell subject to the prior liens, as the bankrupt himself might have sold, the 11th section gives him full authority, under the direction of the Court, to redeem and discharge it whether payable in presentí or at a future day, and tender a due performance of the conditions thereof. If any dispute arises in regard to the justice of the lien, or the amount due upon it, the 6th section gives to the District Court ample jurisdiction to determine the controversy; and if the district judge entertains doubts on any matter before him, he may adjourn it into the Circuit Court, where he can take the judgment of the proper justice of the Supreme Court of the United States. These provisions in the Act of Congress show that a sale made by the assignee in the ordinary way, without any decree specially affecting the liens in the State Courts, only passes a title subject to those liens, and leaves them unimpaired as they stood before the sale.

This question was brought before the Circuit Court of the United States for the Eastern District of Pennsylvania, as early as October, 1843, and the late Mr. Justice Baldwin, with the concurrence of the late District Judge (Randall), decided that there is nothing in the Act of Congress which affects the remedies attached to a judgment entered prior to the application in bankruptcy, one of which is the right to sell the land of the debtor according to the laws of the state. See the Matter of Kerlin, cited by Judge Catron, in 3 Howard 326. This decision has never been reversed, and the argument, by which it is sustained by the lamented jurist by whom it was delivered, has never been satisfactorily answered. The public and professional confidence in its soundness has been so unhesitating and abiding, that it has regulated the practice throughout the state. In the Eastern District it was necessarily regarded as a binding authority. In the Western District no opinion which the District Judge, or any other single judge might have entertained, could be expected to overthrow its influence. The ability with which the opinion is maintained, the great eminence of its distinguished author; and the justice and public convenience which it tended to promote, commanded the general respect and acquiescence of the community. It has governed in the purchases and sales of lands derived through proceedings in bankruptcy for the last twelve years. Many titles and extensive landed interests depend upon it. To overthrow it now, and to pronounce all these titles void, would be a most unjust proceeding, which would spread consternation and ruin throughout the state.

We are perfectly aware of the existence of opinions in favor of enlarging the jurisdiction of the United States Courts, and extending, by construction, the operation of the Act of Congress. But we affirm, without the fear of contradiction, that if the construction, now claimed by the plaintiff in error as the true meaning of the bankrupt law, had been engrafted upon it at the time the bill was under consideration in Congress, it never would have received the sanction of that body. The plain and explicit recognition of the rights of married women, which we have recently held, in an opinion delivered by Mr. Justice Woodward, includes the widow’s dower in a bankrupt’s estate, (Worcester v. Clark,) and of the prior liens of creditors, and their exemption from the operation of the bill, tended to secure its enactment. There is nothing either in the nature of its provisions, or in the manner in which it has been brought to operate upon the rights of creditors and others, which justify its extension by construction beyond its plain and obvious meaning. If the rights of suitors in the State Courts are to be disregarded by the subordinate tribunals of the federal judiciary—if liens, recognised and protected by state laws, and expressly exempted from the operation of the Act of Congress, are to be nullified or impaired by proceedings in the United States District Courts without notice, without a hearing, and without the means of appeal or review—if the jurisdiction of the State Courts, after it has legally attached, is to be superseded by tribunals of'limited jurisdiction, whose powers are not pretended to be supreme, or superior to those of the state tribunals—if the process of the State Courts, after actual levy and seizure into their custody of the lands of debtors in judgments and executions, is to be treated with as much indifference and contempt as if no such proceedings had taken place—if the rights, the laws, and the tribunals of the states are thus to be drowned in the flood of constructive powers in the federal government, the sacrifice shall not be made with our consent.

The pressure of business before us prevents an extended examination of the decisions of the Supreme Court of the United States which hear upon, this question. Without stopping to inquire into the views of all the Judges of that Court, a brief notice of the cases will be sufficient to show that no authoritative adjudication has been made by that learned tribunal in opposition to the doctrine now affirmed in the case before us. In Ex parte Christie, 3 How. 292, the United States District Court of Louisiana entertained a proceeding for the purpose of inquiring into the validity of a sale under proceedings in the State Court upon a mortgage and into the validity of the mortgage itself, which mortgage was attacked on the ground that the mortgage debt was not justly due, but was void on account of usury; and a motion was made in the Supremp Court of the United States for a prohibition against the United States District Court. The Supreme Court decided that it “ possessed no revising power over the decrees of the District Court sitting in bankruptcy,” and the prohibition was therefore, of course, refused. It is scarcely necessary to say, that after the authority of the Supreme Court to entertain the motion for a prohibition was expressly disclaimed, the views which any number. of the judges thought proper to express on questions not judicially up for.decision, cannot be regarded as authority. At that time death, had deprived the Court of the valuable services of Judge Baldwin, and no one had been appointed in his place. In Waller, assignee of Savage v. Best, 3 How. 111, the question was whether the delivery of a writ of execution to the sheriff, under the laws of Kentucky, created a lien on the land of the debtor which enabled the State Courts, by means of a sheriff’s sale, to give a title superior to that of the assignee in bankruptcy, although the act of bankruptcy was committed after the delivery of the writ to the sheriff, but before the levy. The decision of the Court as pronounced by Chief Justice Taney, was that the sheriff’s vendee under the proceedings in the State Court, by the prior delivery of the execution and the subsequent levy and sale, had the prior and superior title. This decision covers the case before us; for the defendant in error here has the advantage of four important proceedings, each of which under the laws of the state created a lien before the act of bankruptcy. The judgment as originally rendered, the judgment as subsequently revived, the-writ of execution delivered to the sheriff, and the actual levy and seizure of the land, as chattels, into the custody of the law of the state, had each a distinct effect in creating a new lien or continuing one already in existence. In Norton’s Assignee v. Boyd et al., 3 How. 426, an attempt was made to invalidate a sheriff’s sale under the State Court, in pursuance of a mortgage. The levy was made under the mortgage before the application in bankruptcy, but the sheriff’s sale under the mortgage was not made until after the bankruptcy was declared and an assignee appointed. An application was made by the assignee to the United States Circuit Court of Louisiana to set the sale aside, but that Court decided that the jurisdiction of the District Court of the United States over all the property of the bankrupt—mortgage or otherwise—was not exclusive; that where a creditor by virtue of a special mortgage elects to foreclose that mortgage before a state tribunal, the Federal' Court is not called upon to interpose except in cases where, from the nature of the case, wrong or injustice may be done to other creditors in interest, or where the mortgage itself may be contested—that the District Court of the United States has jurisdiction over mortgaged property belonging to a bankrupt, and where a proper case is shown it has the power to foreclose a mortgage, and to do all other acts necessary to bring about a final distribution and settlement of the bankrupt estate; and that in a case where a creditor calls in question the validity of a mortgage held by another creditor, it is the duty of the said Court to exercise jurisdiction over the questions involved, and if necessary, to declare the mortgage null and void. But that where no such question is involved, and where the equity powers to be thus exercised cannot change the rights of the parties interested, it is a positive injustice to the mortgage creditor to subject his property to useless costs and expenses, and the bill was therefore dismissed by the Circuit Court, and the sale under the process of the State Court was thus held to pass a title superior to that of the assignee in bankruptcy. Upon appeal, the Supreme Court of the United States affirmed expressly, not only the decision of the Circuit Court, but the principles upon which it rested. Judging the case before us by the rules thus laid down, the sheriff’s vendee possesses a superior title. There is no pretence here that “a proper case was shown” to induce the District Court to entertain jurisdiction for the purpose of affecting the lien of the judgment creditor, or that the “ validity” of the judgment was ever “contested” “or called in question,” or that wrong and injustice might be done in the State Court, or that the powers of the United States Court, however exercised, could in any manner “ change the rights of the parties interested.” Under such circumstances, according to the unanimous decision of the Supreme Coui’t of the United States, in Norton v. Boyd, any attempt on the part of the District Court to interfere with the lien of the judgment, or to compel the owner of it to abandon his proceedings in the State Courts,- where he had elected to proceed, would have been a “positive injustice,” and would have subjected his property to “useless costs and expenses.” It might with great propriety have been added that, as the jurisdiction of the United States District Court is not exclusive, it had no right to invade the jurisdiction of the State Court, which had previously attached by virtue of the judgment, execution, and levy upon the land. . The latter Court was as competent to entertain any question respecting the validity of the judgment, or any other matter necessary to the exercise of its jurisdiction as the United States District Court, and the rule is, that where the jurisdiction is concurrent, the tribunal which first takes lawful cognisance of a cause is entitled to hold exclusive jurisdiction over it. In Black et al. v. Zacherie et al., 3 How. 495, it was decided that the “bankruptcy of itself constituted no ground why the Supreme Court should interfere to stay proceedings on execution or to award execution.” In that case certain stock in the N. O. Gras Light Company had been attached by process from the State Court, but, before the sale of the stock on the attachment, the defendant applied for the benefit of the bankrupt law. This was not deemed sufficient reason for preventing the sale of the stock under the prior attachment. The case of Houston et al. v. City Bank of New Orleans, 6 How, 504, was a sale under a special decree, made on notice to the parties having liens, and with the express consent of the oldest mortgage entitled to the proceeds. By this decree the sale was expressly ordered to be made “ free from encumbrances, rendering to the parties interested their respective priorities in the proceeds and the proceeds were applied to the oldest mortgage creditor. As they were not sufficient to satisfy it in full, the subsequent mortgagees had no interest which could be injuriously affected by the proceedings, unless the property was sold at an under value, which was not pretended. The State Commercial Court of New Orleans refused to grant their application to charge the land in the hands of the purchasers with the subsequent mortgages; the Supreme Court of the state reversed that decision, but the Supreme Court of the United States affirmed the decision of the Commercial Court in favor of the sale. There is nothing in this decision which affects the case before us. If the District Court of the United States, in this case, had made a special decree, preserving the rights of the lien creditors to the proceeds, according to their priority—if they had been duly notified of that proceeding so that they could be heard, and if the lien creditors, entitled to the whole proceeds, had expressly consented to the sale, and had taken the proceeds, the cases would have been somewhat similar. But in the case before us no special decree of the kind was made—no notice, no hearing, no consent, no preservation of the rights of the judgment to the proceeds according to its priority, arid no payment of the proceeds to such judgment. There was nothing but a sale by the assignee of such title and right as the bankrupt himself, before bankruptcy, might have disposed of. Such a sale, as already shown, gives the purchaser a title subject to all existing liens. In Peck et al. v. Jenness et al., 7 How. 618, the United States District Court attempted to impair the lien of an attachment on mesne process, issued out of the State Court and served before application in bankruptcy; but the Supreme Court, in an opinion delivered by Mr. Justice Grier, held that the lien was valid—that the State Court, and the United States District Courts, are equal in authority — that one has no right to enjoin the other; that the District Courts of the United States have no supervisory power over the State Courts, either'by injunction, or by the more summary method pursued, and that where the jurisdiction of the State Court and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by another court; and that the decree of the United States District Court invalidating the lien of the attachment was entirely inoperative. The same principle was again affirmed in Colby v. Ledden, 7 How. 626. The principles announced in the two cases last cited affirm the judgment of the Court below.

As the construction which we have thus given to the Act of Congress accords with its plain and obvious meaning, and as there is no authoritative decision to.the contrary, the judgment of the Court of Common Pleas is to be affirmed.

Judgment affirmed.


author: Woodward, J.

text:
    Jack versus Shoenberger.
    1. Under the Act of 1705 a will might be republished by parol so as to pass real estate acquired subsequent to the making of the will.
    2. A testator made his will in 1828 with a residuary clause in favor of his brother, which embraced all his estate and everything he might die possessed of. lie died in 1843, having, it was alleged, republished the will by parol after having aequmed the land part of which was in controversy: Held, that the after acquired land passed under the will, whether the will was within the purview of the Act of 1833 or not. If within the Act parol republication was unnecessary—the 10th section of that Act would pass the land; if not within it parol republication of the will passed the land.
    Error to the Common Pleas of Westmoreland county.

    This was an action of ejectment to August Term, 1849, byiJohn H. Shoenberger and Margaret his wife, late Margaret Oust, in her right, and Elorinda Blair, late Elorinda Cust, v. William Jack. The defendant having died, William Jack and others were substituted. It was brought to recover the one-third of a tract of land containing 77 acres, situate near to Greensburg.
    Both parties claimed under Matthew Jack. The females, who were plaintiffs, claimed as heirs at law of said Matthew Jack, who died, seised of the land, on 3d October, 1843, leaving neither wife nor lawful issue, but leaving two brothers, viz., William, against whom the ejectment was brought, and Wilson; and a sister, Mary Oust, since dead, whose heirs were plaintiffs in this case.
    Matthew Jack, by his will, dated 19th day of September, 1828, devised to his brothers, Henry and Wilson Jack, his interest in several lots in Kittaning, and lastly, after payment of his debts, he devised “the whole rest and residue” of his estate, “whether real or personal,” “and everything” at the time of his death he might be “possessed of, to his brother, William Jack, and his heirs.” The will was proved on 4th November, 1843.
    The property, part of which was in dispute, was acquired by Matthew Jack, after the making of his said will; it was acquired by him between 1831 and 1837.
    The defendants, as heirs of William Jack, the devisee, claimed under the said will and under testimony and evidence offered to show a parol republication of the will. On the trial it was, inter, alia, offered to give evidence, on their part, in order to show that Matthew Jack, after the making of the will, had conveyed to his brothers, Wilson and Henry, the lots in and near to Kittaning, and that he had requested another will to be drawn, leaving out the names of Wilson and Henry, and making William Jack sole devisee; and that such a will was drawn but perhaps from accident or neglect was never signed by him.
    The testimony of various witnesses was also offered in order to show that the testator, after he had acquired the property part of which was in dispute, said that William Jack was to have all of his property, and that Mrs. Oust was not to have any of it.
    Burrell, J., decided that parol evidence was inadmissible to prove a republication of the will; and he rejected the evidence offered with that view, and instructed the jury to find for the plaintiffs.
    Verdict for plaintiffs.
    It was assigned for error, that the Court erred in rejecting the testimony and evidence offered to show a parol republication of the will. The questions were stated to be, First, Whether a will can be republished by parol; and if this were decided in the negative, then, Secondly, Whether the rule applies to a will made prior to the Act of 1833.

      Stokes, with whom was Foster, for plaintiffs in error.

      Cowan, for defendants in error.
   The opinion of the Court was delivered by

Woodward, J.

On the 19th day of September, 1828, Matthew Jack made his will in writing, wherein, after certain devises to his brothers Henry and Wilson Jack, he employed the following language : I give and bequeath the whole rest and residue of my estate, -whether real or personal, and everything at time of death I may be possessed of, to my brother William Jack, and his heirs.” He died in 1848, seised of the land in controversy, but did not own it at the date of his will, having acquired it somewhere between 1831 and 1837. On the first trial of the cause a parol republication of the will was proved after the acquisition of this land, and the devisee had a verdict; but when it came into this Court, it was decided that since our statute of wills of 8th April, 1833, there can be no republication by parol, and that the testator having died after the date of the Act, left his will within the purview of it. The judgment was accordingly reversed, and on retrial the parol evidence of republication was rejected, and he was held to have died intestate as to this portion of his estate. The record is now brought up again to have this opinion reconsidered.

It is alleged that the late Judge Coulter took no part in the decision in consequence of having been the legal adviser of the testator, and a witness to the fact of republication, and that Mr. Justice Bell dissented from the judgment of the majority. The opinion of Chief Justice Hibson is also said to have been marked not to be reported, and is not to be found among the files of the Court. We lay these allegations out of view, because we have before us a copy of-the opinion duly certified by the prothonotary, on the 17th of November, 1851, and we recognise it as the opinion of the Court in this case. More than this: We entertain for it all the respect which is due to the distinguished judges who preceded us on this bench, and if a majority of the Court, as now constituted, cannot acquiesce in the conclusions of its learned author, it is not for want of a careful consideration of the reasons advanced in support of those conclusions. There is nothing in our office more pleasant than to follow in the path illuminated by that great intellect; but we are sometimes compelled to depart from it in order to get back upon the beaten track of the law. Notwithstanding the 6th section of the Act of 1705, republication of a written will might under that Act be proved by parol, so as to pass real estate acquired subsequently to the date of the will. Subscribing witnesses to the execution of the will were not required, and as publication might be proved by parol, so might republieation, for the rule was that the same solemnities but no more, were required to republish as to publish it: Havard v. Davis, 2 Binn. 415; Jones v. Hartley, 2 Wh. 103. And such was the law in England, until the 6th section of the Act of 29 Ch. 2, cut up parol republieation altogether; but this statute was never extended to Pennsylvania.

When Matthew Jack, therefore, made this will, it was capable of republieation by parol; and had he subsequently made another will, with all due solemnities, it might have been superseded by a parol republication of this one. And he did republish it, say the plaintiffs in error, after he purchased the land in controversy. They offered to prove such republication, but according to the opinion of Chief Justice Gibson, it may not be done because our Act of 1883, like the statute of 29 Ch. 2, has cut up parol publications, and this will is within the purview of the Act because the testator died after the Act was passed. These are the propositions that ruled this case, and it is apprehended that if both were admitted the judgment was improperly reversed. But' of that hereafter.

As to the first of these propositions, it is doubtful whether the legislature meant more by the 13th section of the Act of 1833, than to re-enact the 6th section of the Act of 1705; and if this were all, the established construction would require us to say, that it does not prevent parol republication: Campbell v. Jamison, 8 Barr 498. But this point is not worth investigating fully, because we think Judge Gibson fell into error when he ruled that this will was within the Act of 1833. If that Act is not the law of this will, then it is immaterial whether the 13th section was intended as a re-enactment of the 6th section of the Act of 1705, or as an introduction of the 6th section of the statute of 29 Ch. 2. Is then this will within the purview of the Act of 1833 ?

In Mullen v. McKelvy, 5 Watts 400, the testator made his wilbefore the Act of 1833, and died afterward; and it was admitted that the execution of the instrument must be judged of by the law as it stood at the time of its execution, and not at the death of the testator. The same point was assumed in Murray v. Murray, 6 Watts 356. Now republication is part of the formalities of the instrument as much as publication is; and if signing, witnessing, and publishing the will, are to be judged of by the law as it stands at the time, it would seem very unreasonable to introduce a higher rule in regard to republication. Even the statute of frauds requires no more solemnities for republication than for first execution, and this has been the universal rule. In the argument of counsel- it is said that republication is the making of a new will, and it is insisted that the law at the time of the act done governs the act. If republication were indeed the making of a new will, it would doubtless be governed by the law of the time; but I apprehend republication is no more the remaking of the will, than publication is the making of it. Publication is necessary to the effect of a will, but we never say a devisee takes under the publication, but under the will; so republication is necessary to the effect of the will on after acquired land, but the devisee of such land takes under and according to the will itself. When a man republishes his will, the terms and words of the will are construed' to speak with regard to the property the testator is seised of, and the persons named therein, at the date of republication, just the same as if he had had such additional property, or such persons had been in esse, at the time of making his will: Powell on Devises 616. In England, since the Statute of frauds and perjuries, republication must be by re-execution of the will, or by codicil; but as a codicil does not, in republishing, give any new quality to a will, its operation being merely to extend the expressions used therein to the time of republication, a devise, not properly executed at its inception, will not be helped by a codicil, though that be executed pursuant to the statute of frauds: Pow. 619; Attorney-General v. Barnes et al., Prec. in Chan. 270; S. C. Vernon 597. This illustrates the distinction between republication and the making of a new will, and shows that republication is dependent on the will and unmeaning as a separate act. It is not, therefore, to have a separate rule. If a will made in 1828 be held within the purview of the Act of 1833, we give the Act a retrospective effect, which is never done except on the clearest evidence of legislative intention, and hence, in Mulloch v. Souder, 5 W. & Ser. 198, this Court refused to apply the 10th section of the Act to a will made before its passage. “ It could only so apply,” says Mr. Justice Sergeant, “by giving the Act a retroactive effect, which will never be done where such does not expressly appear to be the design of the legislature; but the Act will be left to operate on wills made and executed after the Act comes into operation.” And let it be remarked that this was said in reference not to the. formalities of execution, which in Mullen v. McKelvy it was admitted must be according to the law as it stood at the date of the will, but in reference to the construction of the Act as a rule of property.

We cannot understand how, in view of these authorities, it was decided that this will was to be governed by the Act of 1833. Judge Gibson gives no reason except that the testator died after the Act, which we have seen was considered of no importance in Mullen v. McKelvy, and he cites no authority. The only authority cited by counsel, in support of his opinion, on this point, is that of Lewis v. Lewis, 2 W. & Ser. 456. There the will was executed in July, 1828, and revived by a codicil written on the same paper, in December, 1833, after the Act of 8th April, 1833, had gone into operation. Evidently forming but one instrument, as a will and codicil may, Carlton v. Griffin, 1 Burrows 546, they came necessarily within the Act, and the point ruled was, that the word “ obsolete,” written on the margin of the will, did not amount to a revocation of the will, because unattended by the attestation required by the Act. No question seems to have been made about that will being subject to the Act of 1833, and there was no question of republieation in the case. This case, it is manifest, does not touch the point, and as the diligence of learned counsel has failed to discover any other, we may presume that none exists.

Unsupported by authority, and in direct conflict with those to which we have referred, the opinion of Judge Gibson comes to us with something less than a binding obligation. Neither the maxim of stare decisis, nor the unfeigned respect entertained for our predecessor, nor our great reluctance to disturb the judgment settled in this very case, are reasons for our standing to an opinion which was itself a departure from the course of decision. We are, therefore, of opinion that this will is not within the purview of the Act of 1833, but is to be governed by the law as it was settled before that enactment, and that, consequently, the evidence of parol republication was improperly rejected.

But we intimated that if both the propositions of the opinion under review were admitted, they would not sustain the conclusion to which the Court attained when the cause was here before. If this can be demonstrated, we shall be right in reversing the judgment, even though wrong in all we have said hitherto.

Let it be granted, then, that this will is within the Act of 1833, and that the 13th section of the Act prohibits republication by parol. The 10th section of the Act, not noticed in Judge Gibson’s opinion, is in these words: “ The real estate acquired by a testator, after making his will, shall pass by a general devise, unless a contrary intention be manifest on the face of the will.” The legislature doubtless intended this to remedy a décision made only ten days before, in the case of Girard’s Heirs v. The City of Philadelphia, 4 Rawle 323, where it was held, for the first time in Pennsylvania, that real estate acquired after the making of a will does not pass under a general devise of the residue of the testator’s real estate without a subsequent republication of the will, even where the testator, in addition to the general devise of the residue, declares in a codicil that it is his wish and intention that all the real estate he shall thereafter purchase, shall pass by the said will. Pursuing the letter of the 10th section, it may be said there is in Matthew Jack’s will a general devise to his brother William Jack and his heirs, and there is no intention manifest on the face of the will that the real estate acquired after making his will, should not pass by that general devise. So far from manifestation of such intention, the words “rest and residue of my estate, whether real or personal, and everything at time of death I may be possessed of,” imports a plain intention to pass whatever he might acquire, as well as what he then had. If then this will be within the Act of 1833, why does not the 10th section apply ? It will not do to answer that this section was decided in Mulloch v. Souder not to be applicable to wills made before the date of the Act; because that decision proceeded on the ground that no such will is within the Act, and we are now contemplating the case as if that decision were repudiated, and as if it had been judicially settled that this will is within the Act. The 13th section might well be held to forbid parol republication, since the 10th section had taken away the great, perhaps the only necessity for republication. In 1833 after-purchased lands could not pass unless there was republication, but, says the Act of that year, they shall pass under a general devise no contrary intention being manifest, and then we will be done with parol republication. Thus the 13th section became a fair sequence of the 10th, but to apply one section, and not the other, is to mar the harmony of the Act. They are parts of the same Act, they took effect at the same time—are in pari materia, and dependent, one on the other, not only in fact, but in reason. Without plain violation of the legislative will, we cannot disjoin what they have thus united. Every rule of construction that we are in the habit of applying, demands that provisions thus knit together, and wrought into the texture of the statute, should be read together, and that if one of them be applied to a will dated before the Act, the other must be.' To say whether a particular-case is within the purview of the Act, is an appropriate judicial duty; but to bring the case within it—to apply the 13th section and then ignore or refuse to apply the responsive provision of the 10th section, is a judicial precedent, which, however sanctioned, is by no means to be followed. There are expressions in Judge Gibson’s opinion, especially where he speaks of narrowing the field of parol evidence “ to cases of after purchased lands,” which indicate that he overlooked the 10th section altogether, In the press and hurry of business, this is not improbable; and had he been spared to review his decision, he would, doubtless, have been “ the earliest to discover his mistake, as well as the foremost to correct it.” This is the ground on which we intimated that the first judgment in this ejectment ought not to have been reversed, even in the view of the law which prevailed in this Court. The fair, the necessary consequence of construing the Act of 1833, to apply to this will, would have been to leave William Jack in possession of the land, the very result which the Court below reached by other means. The whole case seems to come down to a proposition which may be stated thus—this will and all questions arising upon it stand upon the law as settled before the Act of 1833, and was capable of republication by parol—or else it is within the Act of 1833, and its terms are sufficient, under the Act, to pass real estate acquired subsequently to its date. Either way the plaintiff in error would be entitled to hold the land.

That we may not be understood as deciding more than we intend, it is proper to add that we have not considered whether the evidence offered would amount to proof of republication. That it tended to prove it is apparent, and. therefore it was competent. The fact- having once been found by a jury, and the evidence offered having been rejected, we are bound perhaps to presume, that it would again have been found had the evidence been received.

Judgment is reversed and a venire de novo awarded.