text:
    Pennsylvania Railroad Company versus Keiffer.
    1. Though, by the 4th section of the Act of 27th March, 1848, viewers appointed to inquire as to damage alleged to be done in the construction of the Pennsylvania Railroad, are to view the premises, they are not prohibited from examining witnesses in the course of their investigation.
    2. The term costs ordinarily includes officer’s fees, as well as the party’s own charges for witnesses, where witnesses can legally be called and examined. ,
    3. By the 4th section above referred to, it is provided that if any damages be awarded and the report be confirmed, judgment shall be entered thereon and execution may issue'for the sum awarded; and the cost and expenses incurred shall be defrayed by the company: Held, that this provision included the petitioners’ bill of costs for service on the viewers of notice of their appointment, and for mileage in such service; also for serving subpoenas on thoir witnesses and mileage, and for the attendance of their witnesses and their mileage.
    Error to the Common Pleas of Westmoreland county.

    This was a proceeding had under a petition of Philip Keiffer, Hathan Keiffer and others, praying the Court to appoint viewers (under the Act of Assembly of March 27, 1848,) to assess the damages done them by the Pennsylvania Bailroad running through their farm in Hempfield township, in the county of Westmoreland. On the 26th of Eebruary, 1852, the Court appointed viewers, to meet on the premises on the 4th May, 1852; on which day the case was heard, and witnesses were produced on the part of the petitioners to prove that the making of the pad had injured more than it would benefit the property in question.
    On the 5th May, 1852, the award of the viewers was filed, finding for the plaintiffs the sum of $450 and costs. On December 4, 1852, the award was confirmed, and at-the same time a rule was granted to show cause why the plaintiff’s bill of costs and the prothonotary’s fees should not be stricken off. This motion was on the same day overruled, and judgment was ordered against the defendant for the costs, including the costs for the petitioners’ witnesses, the judgment fee and prothonotary’s costs; the damages assessed having been previously paid.
    The petitioners’ bill of costs included service of the notice of the appointment of the viewers and mileage; serving subpoenas on eight witnesses and mileage, and for attendance and mileage of witnesses.
    The question was, whether the costs for witnesses called by the petitioners were lawfully chargeable on the said company.
    It was assigned for error, that the Court erred in allowing the plaintiff’s bill of costs. 2. In ordering judgment against the defendants.
    In the 13th section of the Act of 16th July, 1842 (Acts, p. 391), it is enacted that, “ In all cases for the assessment of damages caused by the construction of canals or railroads by incorporated companies in this Commonwealth, if the viewers or a jury shall find for the plaintiff any sum of damages, such award or verdict, on the rendition of judgment, shall carry costs, unless there may be some provision in the Agí incorporating such company to the contrary.”

      Foster and Stokes, for the Company.
    It was said that no costs were recoverable at common law: 2 Inst. 288; and no claim for such can be sustained except under the express provision of a statute. That from the statute of Gloucester (6 Edw. 1, ch. 1) to the Act of July 16, 1842, the specific forms of action, the nature of the costs, and the tribunal in which theymay.be recovered, are stated; and it was contended that as no statute specially provides for the recovery of a charge for witnesses, that they were not recoverable.
    It was further contended, that the Act of 1848, under which this proceeding was had, made no provision for the subpoenaing or compelling the attendance of witnesses, or for swearing, examining, or paying them. That the viewers are to examine and to estimate from their own observation. Reference was made to the opinion of Gibson, C. J., in 3 Barr 464, that the law does not provide compensation for witnesses summoned before -a coroner. It was admitted that the prothonotary’s costs were chargeable under the Act of 1842.
    Cowan, contrà.
    It was said that when a duty is enjoined the legal means to accomplish it are implied: 4 Wheaton 316, McCulloch v. State of Maryland; 16 Peters 539, Prigg v. Commonwealth of Pennsylvania. The trial per testes is a common law right. In proceedings like this it has been customary to examine witnesses: 8 Barr 445, Heister’s Case. It was further contended that the costs for witnesses was allowed by the Act of 27th March, 1848. By the statute of Gloucester, 6 Edw. 1, ch. 1, in force in this state, it is provided, “ And further, that the' demandant may recover against the tenant the costs of his writ purchased, together with the damages aforesaid. And this Act shall hold place in all cases where the party is to recover damages.” This has been liberally interpreted to be all the legal costs of a suit, that is, all the money expended by the plaintiff to the officers and in procuring witnesses, &e. This was decided in Witham v. Hill and others, 2 Wils. 91, and that the “ words in all cases, extend to all cases at common law, and to all actions upon any former or latter statutes where damages are to be recovered:” Per Lord C. J. Willes. Hence, when any statute gives costs, it is to he presumed they mean costs under this statute of Gloucester.
   The opinion of the Court was delivered by

Knox, J.

Upon the petition of the defendants in error, viewers were appointed by the Court of Common Pleas of Westmoreland county, to assess damages occasioned by the Pennsylvania Railroad running through their farm in Hempfield township, in the county of Westmoreland.

The viewers awarded for the plaintiff below the sum of $450 and costs, which was confirmed, and the Court refused to strike from the bill of costs the charge for witnesses examined before the viewers. This is the subject-matter of complaint upon the part of the company, and the questions examinable here, are, 1. Is it proper for viewers to examine witnesses to determine the amount of damages in a case like this ? 2. If so, can the party include the charge for subpoenaing and attendance of witnesses in his hill of costs?

The Act of 27th March, 1848, gives costs to a party in whose-favor damages are awarded. The term costs is a comprehensive one, including in its ordinary acceptation, officer’s fees, as well as the party’s own charges for witnesses, where witnesses can legally be called and examined.

By the statute of Gloucester, 6 Edw. 1, chap. 1, in force in this state, it is provided, “ That the demandants may recover against the tenant the costs of his writ purchased, together with the damages aforesaid. And this Act shall hold in all cases where the party is to recover damages Robert’s Digest, 107. Though the statute only mentioned the costs of the writ, the construction has been that it extends to all the costs of the suit, and also to all cases where damages are given by statute to the party aggrieved, though costs be not mentioned in such statute. Other statutes altering, restraining, and modifying the right of the plaintiff to costs established by the statute of Gloucester, have no bearing upon the question now under consideration.

The statute of Gloucester is only referred to for the purpose of showing the liberal construction given to its provision in regard to costs, and by analogy to show that wherever costs are given by statute, a party may charge for his witnesses, if he is entitled to have them called and examined.

But it is said that viewers must determine for themselves, by their own examinations and upon their own judgments. But may they not gather facts to aid their determination from the knowledge of others?

One of the provisions relative to the appointment of viewers to assess damages occasioned by the construction of the Pennsylvania Railroad is, that they shall not be taken from any county through which the road passes.

This regulation, perhaps wise in itself, prevents the viewers from having that intimate personal knowledge of the condition and value of the land taken, the advantage and disadvantage occasioned by the road, the quantity and value of the materials taken, &c., which those in the vicinage would probably possess. To “view the premises,” is one method to ascertain what is right and just between the parties; but there is nothing in the statute, and certainly nothing in the reason of the thing which makes it the only and exclusive means of arriving at the end.

The duty of the viewers is a responsible one. Their report has great effect upon the interests of the parties, and should be most carefully considered by the aid of all the lights calculated to produce correct results. As one of the means likely to promote the ends of justice, we are of opinion that either party should be permitted to call witnesses to testify to such facts as are pertinent by the rules of evidence, and that from this it follows that the costs were rightly charged.

Judgment affirmed.


source: Caselaw Access Project

author: Knox, J.

license: Public Domain

text:
    Claason’s Appeal.
    1. When a judgment and mortgage are entered on the same day, they are payable pro rata.

    2. In a clear ease and where it is necessary to prevent manifest injustice, the lien of a judgment may be restrained, and parol proof as to the terms on which it was confessed, is admissible.
    3. Where persons claim the benefit of a judgment as having been confessed to one in trust for their use, they must take it, if at all, subject to the arrangement under which it was confessed.
    4. Where, after the execution of a mortgage, a judgment was confessed by the same debtor to one in trust for other creditors under an arrangement between the mortgagor and mortgagee, that the encumbrances were to be so entered that the mortgage should have priority; but through default in their agent the entries were made as of the same day: It was Held, that the mortgagor was bound at an early day, or at least before the sale of the property of the debtor, to have made application to restrain the lien or operation of the judgment, or to notify the judgment creditors of his claim; and by waiting above two years and till after the personal and real estate was sold, he lost his claim to priority.
    Appeal from the decree of the Common Pleas of Westmoreland county.

    This was an appeal by John Irwin, Samuel Gamble, James Claason aud others, interested in a judgment entered in the name of John Herron v. James R. Speer & Co., from the decree of the said Court, directing distribution of money raised by sheriff’s'sale of the real estate of James R. Speer, being a furnace property.. The said estate, which was represented to be his individual property, was sold, in May, 1849, on an execution in favor of Hampton, Smith k Co. v. James R. Speer, and was purchased by William Eichbaum for $5200. The net proceeds were for distribution. James R. Speer & Co. were engaged in the manufacture of iron at a furnace in Westmoreland county, in the year 1848, and the personal property about the furnace belonged to them.
    William Eichbaum claimed the net proceeds of the said sale on a mortgage for $5000 on the premises sold, being the furnace property, executed in his favor by James R. Speer. It was dated 5th July, 1848, and was left for record on sixth December, 1848, at 8 o’clock P. M.
    The appellants claimed the said proceeds under a judgment to November Term, 1848, confessed in favor of John Herron v. James R. Speer & Co'., for $3000,-and entered also on sixth December, 1848. It was alleged that this judgment was confessed to Herron for the use of the laboring men at the furnace, and others.
    On 26th February, 1850 (after the real and personal property of Speer & Co. had been sold at sheriff’s sale), application was made, on the part of John Irwin and above twenty others, claiming that the judgment in name of Herron had been confessed in part for their use. A rule was granted to show cause why they should not be substituted as plaintiffs. On May 26, 1850, other applications were made for Samuel Gamble, Peter Olaason and others. The rules were made absolute.
    On their part it was alleged that the Herron judgment was entitled to priority over the mortgage, on the ground that it was entered of record at an earlier period, on the 6 th of December,, than the mortgage.
    On the 21st February, 1851, a suggestion was made by Eichbaum, the mortgagee, that the judgment in favor of Herron was void as to other lien creditors; and also, that he was entitled to preference for his mortgage, because it was intended and agreed that it was to be entered before the judgment, and that by the mistake of a common agent it was not so done.
    A feigned issue was directed to try the facts. After testimony had been given, the. jury were dismissed under an agreement of counsel that the Court , should determine, from the evidence, 1. Whether the judgment of Herron v. Speer & Co. was fraudulent and void as to creditors. 2. Whether the said judgment, if valid, was to be postponed to the mortgage of Speer to Eichbaum.
    The case appeared to be substantially as follows:
    On 5th July, 1848, Dr. Speer executed the mortgage in question to Eichbaum, to secure him for endorsements, with the understanding that if Eichbaum would not enter it up till a necessity arose, Speer would give him notice so that the mortgage might be the first lien. Such necessity arose, and an arrangement between them was made to the following effect, viz.:
    Speer procured a judgment bond to be drawn in favor of John Herron, the object of which was to secure the hands at and about the iron works, and those who had furnished supplies. That neither Herron, the trustee, nor the creditors to be benefited by it, knew of the judgment till some time afterwards. Eichbaum’s mortgage and the judgment were sent by a messenger for entry with the knowledge and instruction of Eichbaum and Speer, that they be entered of record in such a manner that the mortgage should have a preference over the judgment. Written instructions to that effect were given. In the instructions the agent was directed to have the mortgage recorded, and the hour marked on it.
    2. “ Then put the three judgments—Von Bonnhurst & Co.’s two judgments, and the John Herron judgment; in the prothonotary’s office.
    3. “ Have fi. fa’s, issued on the judgment of $3352 and Herron’s judgment; thefi. fa. on the Herron judgment to go into the sheriff’s hands first, Von Bonnhurst & Co.’s to be next.”
    The agent was not present at the trial; but it was represented, in the opinion of the Court below, that he arrived at Greensburg on the evening of the 6th December, and by accident or design, first handed the judgment to the prothonotary between 7 and 8 o’clock p.m., and then gave the mortgage to the recorder at 8 o’clock P.M., at a public-house, the office being closed. The next morning, 7th December, the recorder entered it as if left for record on the 6th, at 8 o’clock p.m.
    He said it did not appear how long after the entry of the judgment Herron became acquainted with the fact of his being a trustee; but, on the 25th August, 1849, he executed a paper declining the trust, and disclaiming any personal interest. 'It. did not appear that the parties in intérest adopted the act till 26th February, May 26, and August 4, 1850, when applications were made on their part to substitute them as plaintiffs.
    The Court said that the lien of the judgments might be restrained: 2 Jones 95, Sankey v. Reed. That the judgment, if adopted, must be taken subject to the terms agreed to by Dr. Speer as to its lien being postponed: 13 Ser. & R. 196; 1 Miles 246. Paley on Agency 145-7; Story on Agency sec. 237-250. Adoption cures the want of authority: Story on Agency 249. The Court decreed distribution: 1. To a judgment in favor of J. McMahon, entered on 9th November, 1848.
    2. To the mortgage of Eichbaum.
    3. To the judgments of Von Bonnhurst and Herron, fro rata.

      4. To the judgment of Hampton, Smith & Co., entered on December 7, 1848, if any proceeds remained after the payment of the claims before referred to.
    From the decree this appeal was taken, and the exception was that the Court erred in entering judgment for the plaintiff, and in decreeing as stated.

      Foster and Banks, for appellants.

      Cowan and T. Williams, contrà.
   The opinion of the Court was delivered by

Knox, J.

This is an appeal from the decree of the Court of Common Pleas, of Westmoreland county, distributing a fund raised from the real estate of James R. Speer, by sheriff’s sale.

Eicbbaum the appellee claimed under the lien of a mortgage dated July 5, 1848, and recorded as appears by the record, on the 6th December, A. D. 1848, at 8 o’clock p. m.

The appellants claim by virtue of a judgment in favor of John Herron for their use, vs. James R. Speer & Co., entered on the 6th December, 1848.

The mortgage and judgment appear to have been entered upon the same day, but each claims priority. ' Eichbaum alleges and proves, that, at the time the judgment was given to Herron as trustee, it was agreed between himself and Dr. Speer, that his mortgage should be entered of record so as to have priority of lien over the judgment, and that such were the instructions to the agent who was sent to Grreensburg to carry out the arrangement.

The appellants contend, that this agreement, being a secret one, does not bind them, and as their judgment was first actually placed upon the record, it has priority of lien.

It is stated by the Court below that the judgment bond was given to the prothonotary between 7 and 8 o’clock p. m., on the 6th December, and that the mortgage was handed to the recorder about 8 o’clock of the same evening at a public-house, the office being closed, and that it was entered the next morning as if-left for record on the 6th at 8 o’clock, p. M.

The Act of the 28th of March, A. d., 1820, makes it the duty of the recorder to endorse the time when a mortgage is left for record, and the lien then commences. It cannot be permitted that the record made by the officer in pursuance of the directions of the statute shall be contradicted by the parol evidence of the recorder or other person, in a contest between lien creditors, unless for reasons which do not exist here.

' Determining from the record as it stands, what would be the result ?

Both liens were created upon the same day. Are fractions to be counted ? As between judgments it-is the well established rule that those that are entered upon the same day have equality of right: Metzler v. Kilgore, 3 P. R. 245. In a contest between a judgment and a conveyance fractions are admitted, and, first in order first in right, is the rule. This is because a conveyance takes effect from its delivery which is provable by evidence in pais, and because it would be impossible to put a judgment and a conveyance upon a footing of equality. “ The one is a security which encumbers the property in exclusion of everything subsequent to it; the other, a conveyance excluding everything to which it is anterior Mechanics’ Bank v. Gorman, 8 W. & Ser. 307.

Is a mortgage as between creditors to be considered as a conveyance, or an encumbrance ? In such a contest, it is nothing but an. encumbrance, and until recorded, unless given for purchase-money, not even that. . The delivery, although giving life to the instrument between the parties, has no effect upon lien creditors, and even when delivered and recorded, though in form a conveyance, is, in substance, but a security for the payment of money (Rickert v. Madiera, 1 Rawle 327), and confers upon .the mortgagee, nothing more than a lien upon the land, which may be defeated by payment of the money loaned, at any time before the sale made by the sheriff in pursuance of our Acts of Assembly, giving a remedy to the creditor: Asay v. Hoover, 5 Barr 21.

The precise time when a mortgage is left for record is noted in order to determine the priority between mortgages; but as no such minute is made upon the entry of a judgment, if fractions of a day are t-o be considered in ascertaining which is first in lien, parol evidence must necessarily be resorted to, and the value of the encumbrance will then depend upon the lives, accuracy, and truthfulness of witnesses, instead of the certain, safe, and reliable record open to the inspection of every person interested, and which tells the same story at all times, and under all circumstances.

I can see no reason why the same principle which rejects fractions of a day in determining the lien of judgments should not be applied to a mortgage when its contestant is a judgment. Under this rule, the evidence, that the judgment was entered before 8 o’clock, p. M., on the 6th of December, was immaterial and should have been rejected.

If the date of the record of the mortgage could not be contradicted by parol, and fractions of a day are to be rejected, the judgment and mortgage would thus far be entitled to equality of distribution, and there only remains to be considered the effect of the agreement between Speer and Eichbaum, and the instruction to the agent that' the mortgage should be preferred. ''

That this agreement was made and these instructions given cannot be controverted, and if they can be interposed, here, will prove decisive of the contest.

Neither Herron nor those represented by him had any agency in, or knowledge of the agreement that the judgment should be postponed in its lien to that of the mortgage ; nor is it clear that they knew that any judgment was given until some time afterward. In the absence of proof of actual recognition by those who are to be benefited by the judgment, the law would presume their assent on account of the benefit to be derived. This presumption would be overthrown or made conclusive by the subsequent adoption or rejection of the persons for whose claims the judgment was confessed. When notice was .given that the judgment was for their use, they could elect to take under it or look to other means to enforce their demands. They chose the former, and now claim that what was apparently beneficial shall not be rendered entirely worthless, by the intervention of an agreement resting in parol, and of which they had no notice until more than two years had elapsed from the entry of the judgment, and the property real and personal had been sold by the sheriff and purchased by the appellee.

The argument upon .behalf of the mortgage creditor is, that in making this agreement, Mr. Speer was acting for the owners of the judgment, and that young Mr. Speer was the common agent of all in procuring the entry of the judgment and the recording of the mortgage, and that the appellants cannot adopt that part of the arrangement which was for their benefit and reject what would be prejudicial; that the rule of entire adoption applies, and, as they claim the benefit of the judgment, they are bound by the agreement to postpone its lien in favor of the mortgage.

Admitting the correctness of the position of the appellee as a general rule, I am for refusing its applicability to the present ease, upon the ground that his acquiescence in the state of the record for such a length of time precludes him from denying its correctness.

The record showed that the mortgage and judgment were both entered upon the same day, and were therefore entitled to be paid pro rata from the proceeds of the real estate. This was notice to all of the parties. Eichbaum knew that it was not in accordance with the understanding between him and Speer. The appellants knew nothing of the kind. They, doubtless, believed that all was as it appeared to be. They had no reason for supposing that Herron would make a pretence of securing them for their labor, by giving them a judgment upon an estate already encumbered nearly, if not quite, to its full value. They were misled by the assurances of Herron that they were secure, but more particularly by the state of the record; and it was clearly the duty of the appellee to hare moved early in the premises, if he intended to rely upon the agreement for the purpose of reforming the record. I do not believe that Mr. Eichbaum desired to injure these meritorious 'creditors by-withholding the truth from them; but his conduct would have that effect if we permitted his mortgage to take precedence of the judgment, and sweep away the entire fund.

If an early application had been made to the Court to prohibit or restrain the lien of the judgment from interfering with that of the mortgage; or if notice had been given in any other manner that priority was claimed for the mortgage, judging from the ordinary actions off men, it is fair to conclude, that the laborers and creditors about the furnace would have taken the most effective means to secure their demand. Surely, if they had known that their judgment was “ as a rope of sand” in its lien upon the realty, they would not have suffered the personal property about the furnace to be sold at a price greatly below its value, and purchased by the attorney of Eichbaum, when it was selling upon an execution issued upon their own judgment, and which was the first lien upon the personal property.

It is only in a clear case, and where it is necessary to prevent manifest injustice, that the effect of a record should be changed or varied by parol. Such is not this case, and by deciding it upon the record as it stands, we shall avoid, what equity abhors, inequality.

The decree of the Court below is reversed, and it is decreed by this Court that the fund be distributed as follows:

1. John McMahon, No. 22, November T, 1848, entered November 9th, 1848.

2. To the costs of this proceeding.

3. To the judgments of John Herron, for use; the judgment of Von Bonnhorst & Co.; and the mortgage of Wm. Eichbaum, pro rata.

Lewis, J., dissented.


author: Lowrie, J.

text:
    McElhiney versus The Commonwealth.
    School directors are not liable to indictment for not keeping the schools open. The remedy prescribed for. the default, by the 8th section of the School Act of 7th April, 1849, is for the Court of Quarter Sessions, upon complaint in writing by six taxable citizens of the district, and on due proof thereof, to declare their seats vacant and to appoint others in their stead.
    See, in the opinion, remarks upon the 13th section of the Act of 21st March, 1806, relative to remedies provided or duties enjoined by Act or Acts or Assembly.
    Error to the Quarter Sessions of Armstrong county.

      This was an indictment against William MeElhiney and five others, school directors, for neglecting and refusing to keep open the common schools, in the school district of Wayne township, for “ three months, or for any period of time whatsoever in and during the school year ending on the first Monday of June,” 1852, contrary to the Act of Assembly.
    On 23d September, 1852, verdict of guilty. On 24th, motion made in arrest of judgment; which, on the 25th, was overruled, and the defendants were sentenced to pay a fine of f 1 each, and the costs of prosecution, &c.
    One of the reasons assigned for arresting the judgment, viz.: the fourth, was to the effect, that the law fixes no penalty for nonperformance of the duties prescribed on this subject, except a removal from office; and that on petition, and not by indictment.
    In the 8th section of the Common School Act of 7th April, 1849, it is enacted, “ If all the members of any board of directors shall refuse or neglect to perform their duties, by levying the tax required by law, and to put or keep the schools in operation, so far as the means of the district will admit, the Court of Quarter Sessions of the proper county shall, upon complaint in writing by any six taxable citizens of the district, and on due proof thereof, declare their seats vacant, and appoint others in their stead, until the next annual election for directors,” &c.
    It was, inter alia, assigned for error, 1st. That the Court erred in overruling the motion in arrest of judgment. 2dly. In not arresting the judgment.

      Phelps, with whom was Calhoun, for plaintiffs in error.
    It was contended, inter alia, that the remedy for neglect of the duty in question, was, in pursuance of the 8th section of the Act of 1849, to declare the seats of the delinquents vacant, and to appoint, others in their stead. That they were brought into office under the Act of Assembly, and that there was no other remedy provided in it for their misfeasance or nonfeasance in office; and that it is provided by the Act of 21st March, 1806, sec. 13, that “ in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the said Acts shall be strictly pursued ; and no penalty shall be inflicted or anything done agreeably to the provisions of the common law .in such cases, further than shall be necessary for carrying such Act or Acts into effect.” Cited 3 Pa. Rep. 180; 3 Watts 330; 13 Ser. & R. 426-430. It was said that if the Acts in relation to common schools-can be carried into effect under the provisions of such Acts alone, the common law remedy by indictment is prevented by the Act of 1806.

      It was further said that the Act of Assembly does not impose any penalty on directors for refusing to serve.

    White, contrà.
   The opinion of the Court was delivered by

Lowrie, J.

The essential question of this cause is,'as to the liability of school directors to be indicted for not keeping the schools in operation during so large a portion of the year as is required by law. For such neglect or refusal, provision is made in the school law of 1849, sec. 8, and the remedy is removal by the Court, and the appointment of others “on complaint in writing of any six taxable citizens of the district, and on due proof;” and it is insisted that, under the Act of 21st March, 1806, sec. 13, this is the only remedy.

This Act, however, can be regarded only as a rule of interpretation, and does not bind the action of future legislatures, and cannot be applied to their acts, except on the- assumption that they have taken it as their guide. One part of it requiring that “where things are directed to be done by any Act of Assembly, the directions shall be strictly pursued,” has been found totally impracticable, and the distinction between directory and imperative words in a statute belongs to the nature of things, and cannot be altered by an arbitrary rule of interpretation: 1 State Rep. 228; 4 Id. 18; 7 Id. 42; 2 Watts 9; 8 Id. 280; 2 Yeates 458.

No doubt the law was intended to enforce a valuable principle, and it does so if it prevents all unnecessary "creation of offences by construction, and all undue power of the Courts over the actions of individuals. It gives statutory sanction to the common law rule, everywhere recognised, that, where a penalty is imposed by statute upon an offence, there for the first time defined, that penalty is the only one intended for that offence: Cro. Jac. 644; 1 Show. 399. This is very obviously a rule of.interpretation derived from the natural principles of human conduct, and therefore not to be altered without a violation of the natural laws of thought. "Where a legislator is imposing specific duties and providing means of enforcing them, the presumption must be that he regards the means provided as the most proper and adequate, and intends them to be pursued. By its very nature this rule does not exclude the common law remedy as to acts or omissions not specifically provided for, because the legislative mind has not been directed to them and has expressed no intention in regard to them. And thus it may very well happen that for some misdemeanors, an officer may be indicted at common law, while others receive a special attention of the legislature and are corrected by a special remedy.

On these principles the offence here charged is not indictable, and can he corrected only by removal from office in the way pointed out in the school law. Besides this, the. special remedy is in its substance incompatible with that by indictment, for it cannot be instituted but by six taxable citizens of the district, and this is evidence that it was not intended to allow the other, which may he instituted by any common informer in the state. If indictment would lie for this, it is not easy to see why it would not for remissness in attendance at the meetings of the hoard, án offence which the board is authorized to correct by removal. We are of opinion that the judgment ought to have been arrested.

Judgment reversed and the defendants below are discharged without day.


text:
    Irwin versus Trego.
    1. Though a sale of unseated land for taxes will not divest the taxes assessed upon it for the year of the sale, Liggett v. Long, 7 Harris 499, yet it does divest the lien of all taxes assessed for any year prior to that in which the sale is made.
    2. Land was sold in 1832 for taxes, and was redeemed within two years from the sale: Held, that such sale extinguished a road tax assessed on the land for the year 1829, though it was not included in the list of taxes certified by the commissioners to the treasurer, and for payment of which the land was sold.
    3. The road taxes of 1829 having been in law extinguished as respects the purchaser by the sale in 1832, the sale of the land in 1834 for such road tax conferred no title.
    4. There being evidence in the case that a part of the tract sold for taxes was seated before the taxes imposed since its former sale, or not thereby extinguished, were assessed, it was not improper for the Court, in an ejectment against persons claiming under a sale in 1834, to say to the jury that the testimony tended to show that the land became seated in 1831, and so continued until after the second sale in 1834, no special instruction on the subject having been asked.
    5. The acceptance by the purchaser of unseated land of the money paid for redemption of the land by one acting as agent for the owners, and the surrender of his deed, destroyed his title under the sale.
    6. A receipt for taxes paid by the purchaser after the land had been redeemed, is immaterial.
    7. A letter by the person who afterwards redeemed the land, addressed to the owners of it, giving information of the sale for taxes, and letters relative to the land, written by him or another one or more years after the redemption, and addressed to one of the defendants who claimed from the purchaser at the tax sale, were irrelevant, and inadmissible, on the part of the said claimant, to contradict the alleged fact of his agency when he redeemed the land.
    8. The rejection of evidence, the admission of which would not have changed the result, is no ground of error.
    9. Where one professing to act for the owners of land sold for taxes, procures from the purchaser a conveyance in his own name, but professedly received for them, and afterwards claims the title for himself, he cannot retain the possession against the owners till he has been reimbursed the consideration paid for the conveyance.
    10. The agent was not protected against the claim of the heirs by the expiration of five years -limited by the Act of 1804; nor was he entitled to compensation for improvements on the land, made after the conveyance to him.
    Error to the Common Pleas of Indiana county.

    This was an action of ejectment to September Term, 1849, by Joseph P. Trego and wife v. John Irwin, Joseph Taylor, and Rudolph Huzzard, for the one undivided fifth part of 240 acres of land in Young township, Indiana county.
    See a report of this case when up on a former occasion, in 7 Harris 441, &c.
    The wife of Trego claimed as an heir of James Dunwoody, who had been the legal owner.
    The defendants claimed under a sale of the land as unseated for taxes, on the 23d June, 1834. The tract was warranted in the name of John Matthews for 300 acres; survey of 400½ acres. Patent to John Craig. Deed, John Craig and wife to George Evans, in trust for James Dunwoody, a lunatic, for 200J acres, which was the land in dispute. James Dunwoody died in June, 1826, leaving six children, of whom Mrs. Trego was one; one other child died intestate and without issue.
    The property was assessed in the name of John Matthews, the warrantee.

    The deed of the treasurer was to Hugh Bleakley; it was dated 23d June, 1834, and was, as alleged, sold on that day for road tax for 1829-30-31, and 1832, viz.: $3.42; and for county and state tax for 1833, $1.33 : in all stated to $4.83. Consideration $76; taxes and costs $9.20J.
    Deed, Hugh Bleakley to Rudolph Huzzard, dated 19th September, 1838, with special warranty. Consideration $115. Huzzard took possession and made some improvements.
    On the part of the plaintiffs, testimony was given to show that when Huzzard procured.the deed from Bleakley, the former represented to Bleakley that he was buying the land for the owners. It was also shown that one Joseph Turner, who, it was alleged, acted as agent of the heirs of Dunwoody, redeemed the land on 13th June, 1836, two years after the sale in 1834.
    On their part was also shown a salé of the same land for taxes on 11th June, 1832, to the same Hugh Bleakley, and a redemption of the same on 9th June, 1834, by Turner, professing to act in the matter as agent of the heirs of Dunwoody; and that Dunwoody received the redemption money, and surrendered the deed which he received after that sale.
    As to the sale in 1832, the treasurer’s sale book was offered in evidence; was objected to by defendants’ counsel, but was admitted. In it was an entry as follows:
    John Matthews, 200 acres; sold to Hugh Bleakley, June 11, 1832—deed executed. Redeemed by Joseph Turner, agent for the heirs of Dunwoody, 9th June, 1834—taxes and costs $2.20½; redemption money $6.19.
    It was also contended, on part of the plaintiffs below, that the land, or a part of, it, became seated as early at least as 1831. David Bleakley testified that “the first improvement on this tract was made in 1830 by Samuel Black; he built a cabin, cleared an acre or two, had a family, a cow and two horses. He stayed there two years, and sold to Conner. Conner came on immediately and occupied that house and land eight or nine years; he cleared some more. I never was along the lines of the tract. He said he had heard Conner say that he was on vacant land.”
    T. Anderson said, he told Conner that he believed he was on the Matthews tract, and that he wanted to assess him with it. “ He denied it, and said he had but five acres, showing me where his lines ran.”
    Hugh Bleakley testified, inter alia, that Black’s house was five or six rods inside of the Matthews survey.
    He further testified that Huzzard came and told him he was appointed by the heirs to get his claim in some way for them.
    He further said he would not have sold to Huzzard if’he had not bought for the heirs; that he would have written to the heirs to come and take the' land. He said, “ I paid taxes on it after I bought it. I know nothing of the last redemption—(meaning the redemption by Turner)—I never got that money.”
    The letter of J. J. Young, referred to in the argument, was dated 10th June, 1834. It was addressed to,Joseph Turner, and was to the effect that he (Young) redeemed the land in the name of Joseph Turner, without Turner’s knowledge.
    A variety of other evidence was given on the trial.
    The charge of Burrell, President Judge, was, inter alia, as follows:
    “ As this land was unseated in 1829 and 1830, the first sale for taxes in 1832 seems to have been a valid one. The validity of the alleged redemption by Turner would depend on the fact of his agency for the owners, the evidence in relation to which, being a contested question, we submit to the jury. If they find he was such agent in 1834, then it is shown he redeemed the land on the 9th June of that year. But, at all events, it appears that Bleakley surrendered his deed under the sale of 1832, to the treasurer, and accepted the redemption money, and this we think put an end to his title under that sale. The jury is instructed that the sale of 1832 extinguished and satisfied all taxes assessed on this land
      prior thereto ; that no valid second sale could be made for the same taxes; and if they find the land became seated in 1831, and so continued until after the second sale, in 1834, which the testimony tends to show, then the second sale was void, the land being seated during the only years for whose taxes it could be sold. Besides, if the jury find that Turner was agent for the heirs, it appears he again redeemed this land on the 13th June, 1836, which would avoid the tax sale.
    “Albert Way and Hugh Bleakley testify in substance, that Huzzard represented himself as agent for Dunwoody’s heirs’; that he was redeeming the land for them; got the deed from Bleakley in his own name, so as to remain until the heirs would reimburse or compensate him ; and afterwards said he redeemed the land for them. If the jury believe these witnesses, they are instructed that Huzzard, in making these statements and declarations, must be taken to have told the truth, as they were contrary to the interest he now asserts; and to allow him to keep the land, as he endeavors to do, would be to allow him to perpetrate a successful fraud upon these heirs. We may presume he lifted his note and paid Bleakley; but his attempted fraud, if Way and Bleakley are believed, entitles the heirs to recover the land without previous actual or proffered reimbursement.”
    March 29, 1853, verdict for plaintiffs for one undivided fifth part of the land described in the writ, and that the defendant’s improvements are worth $250. July 1, 1853, that part of the verdict relating to the defendant’s improvements was stricken off, and judgment was otherwise entered on the verdict.
    It was assigned for error: 1. That the Court erred in admitting a deposition of Albert Way, to establish a trust in Huzzard. (This related to declarations by Huzzard that he had redeemed the land for the heirs.) 2. In admitting that part of the testimony by Bleakley of a statement by Huzzard, that he had been appointed by the heirs to get Bleakley’s claim. 3. In admitting evidence of the treasurer’s sale in 1832. 4. In rejecting letters of Joseph and James Turner, offered on part of defendants. These letters related to the sale of the land; one of them was addressed to the heirs of Dunwoody in April, 1834, before the redemption; the others were addressed to Huzzard in 1836-38, 1842-43. 5. That the Court erred in rejecting the receipt of Isaac Mi Watt to Hugh Bleakley. This was a receipt by. Watt, as treasurer, dated 13th June, 1836, for $4.30, the taxes on the John Matthews tract for the years 1833-34. 6. That the Court erred in rejecting the list of unseated land and the return of the supervisors. 7. In instructing the jury that the sale of 1832 extinguished and satisfied “ all taxes assessed on this land prior thereto.” 9. In charging that the testimony tended

      to show that the land became seated in 1831, and so continued. 10. In instructing them that the declarations of Huzzard to Bleakley and Way were proof of a fraud upon the heirs, such as would entitle them to recover the land without previous actual or proffered reimbursement. 11. In not instructing the jury as requested, that the plaintiffs, not having brought their action within five years from the treasurer’s sale, were not entitled to recover. 12. In striking off that part of the verdict which allowed the defendants compensation for their improvements.
    Drum, for plaintiffs in error.
    As to the charge relative to the land being seated, it was observed that the occupation of a small part of a tract as distinct and separate from the remainder, will not render the whole seated. “Black occupied but a few rods of this tract, although it seems his house was within the lines.” Cited 1 Watts 503; 5 W. & Ser. 451; Id. 359; 3 Id. 238. It was said that if these authorities show that the tract was still unseated in 1833, then the sale of 1832 did not impair the operation of the sale of 1834.
    As to the portion of the charge that the sale of 1832 extinguished all taxes prior thereto, it was said that the Court rejected the return of the supervisors, dated 29 June, 1831, which was offered to show that when the commissioners certified, to. the treasurer the taxes for which the sale in 1832 was afterwards made, the road taxes of 1829, viz.: $ 1, had not been returned to the commissioners. This road tax for 1829 was included in the taxes at the sale in 1834. It was contended that such road tax not having been returned when the sale in 1832 was made, the sale in 1832 did not extinguish it.
    But granting that the sale in 1832 extinguished all previous taxes (the road tax of 1829 included), it was said that Turner was not the agent of the-owners, and having no authority to redeem the land, the redemption by him, after the sale in 1832 to Bleakley, was void; that the title remained in Bleakley who conveyed to Huzzard. Also, that the-testimony and letter of Young showed that the redemption was unauthorized, and that Turner never made it. That if Bleakley surrendered his :deed under the false representation that the land had been rightly, redeemed, his title under the sale in 1832 would not be extinguished. That the heirs never ratified the redemption until the bringing of this suit, seventeen years afterwards. That unseated land can be redeemed only by the true owner, or some one authorized by him: 2 Watts 436, McBride v. Hoey.
    Also; that the letters of Turner were offered to show acts and declarations inconsistent with his alleged agency. That his redemption, if it ever occurred, amounted to a declaration that he was the agent, which, it was alleged, he had a right to contradict at another time: 5 Harris 230.
    The receipt of Watt, Treasurer, to Bleakley, dated 13th June, 1836, for the taxes of 1833-4, was dated on the same day that the redemption by Turner was said to have taken place; and it was contended that it was admissible to show that Watt had not received any money for redemption from Turner.
    Banks, for defendants in error.
   The opinion of the Court was delivered by

Knox, J.

The plaintiffs below, Trego and wife, brought this action of ejectment to recover possession of the- one undivided fifth part of a tract of land in Young township, Indiana county, as heirs, at law of James Dunwoody, who was the owner at the time of his death, in 1826.

The defendants claimed title under a conveyance from James Bleakley, who had purchased at a tax sale in 1834.

To avoid the effect of the treasurer’s deed, it was alleged by the plaintiffs, 1st. That the land was seated when the taxes were assessed, at least such portion of them as the sale could legally include. 2d. That there had been a redemption within two years from the sale, by the agent of the heirs of Dunwoody. And 3d. That Huzzard was acting as their agent or trustee in procuring the conveyance from Bleakley.

The sale in 1834 was for the taxes of 1829-30-31 and 1833. Evidence was given, tending to show that the tract became seated in 1830 or 1831, and remained so up to the time of the sale in 1834, and to cut out the assessments of 1829-30 and 1831, it was shown that the same tract had been sold as unseated for non-payment of taxes by the treasurer of Indiana, to James Bleakley, on the 11th of June, 1832, and redeemed by Joseph Turner, agent for the heirs of Dunwoody, within two years from the sale, and that the redemption money had been accepted by the purchaser, and the .deed delivered to the treasurer.-

The Court below instructed the jury, “ that the sale of 1832 extinguished and satisfied all taxes assessed on this land prior thereto; that no valid second sale could be made for the same taxes, and if they found the land became seated in 1831, and so continued until after the second sale in 1834, which the testimony tends to show, then the second sale was void, the land being seated during the only yéars for whose taxes it could be sold.”

This instruction is complained of, and two errors are assigned upon it, viz.:

8th. The Court erred in instructing the jury that the sale of 1832 extinguished and satisfied all taxes assessed on this land prior thereto.”
9th. The Court erred in charging the jury that the testimony tended to show that the land became seated in 1831 and so continued.”

In Liggett v. Long, 7 Harris 499, in an opinion delivered by Justice Lewis, it was held, that a treasurer’s sale on the 18th June, 1834, for non-payment of taxes on unseated lands for the years 1832 and 1833, did not extinguish the lien of the taxes for the year 1834, and that the land might again be sold for the taxes assessed in 1834.

I yield a ready assent to the authority of this case, as a contrary doctrine might work injustice to the public. It frequently happens that the taxes for the current year are not, and cannot be returned in time for the commissioners to include them in the list furnished the treasurer; and as the purchaser has notice by his deed what taxes are embraced in the sale, he cannot complain of being misled.

But why should not the sale be held to divest the lien of all taxes assessed for years prior to that upon which it is made? County and state taxes are assessed in the fall of the preceding year, and road taxes in the spring. There can be no difficulty, with ordinary diligence, in furnishing to the treasurer a statement of such of the unseated taxes as remain unpaid, long before it is necessary for him to give the requisite notice of the sale, and such as are not included may fairly be presumed by the purchaser to have been in some manner satisfied.

In Fager v. Campbell, 5 Watts 287, it was determined that a sale for taxes divests the lien of a mortgage, and the late Chief Justice G-ibson, in delivering the opinion of the Court, says, “ Necessity requires that the public duty should be held paramount to all others; and if a judicial sale shall clear the title of encumbrances there is more urgent reason that a treasurer’s sale should Jiave the same effect.”

If the land in the hands of a purchaser is free from encumbrances due to strangers, is there any reason why an existing lien in the nature of - a tax should outlive the sale? The whole policy of our recent legislative enactments and judicial decisions has been to protect tax titles and thereby encourage purchasers, as it is often the only means of enforcing the payment of taxes against uncultivated lands. It would doubtless deter persons from bidding at tax sales if it is understood that the lands may again be sold for taxes assessed long before the purchase. If the taxes are returned, they may be and should be included in the sale. If they are not returned, their lien, if any exists, is a secret one, and should have no force as against a bond fide purchaser.

Subject to the exception that the year in which the sale takes place is not to be included, I think the rule is a sound one that was applied by the Judge of the Common Pleas, and as the exception would have no effect upon this case, the mistake in this respect is an immaterial one. The evidence certainly “ tended to show that the land became seated in 1831, and so continued,” and this is all that was said by the Court. The instruction might have been given more in detail as to what would change a tract from unseated to seated; but we cannot reverse because the law is not fully explained, when such explanation is not solicited.

It follows from what has been said, that there was no error in admitting the evidence of the treasurer’s sale in 1832; and it is equally clear that the payment of the redemption money by Turner, and its acceptance by Bleakley, the purchaser, prevented the sale from impairing the title of the Dunwoody heirs. It is not under the sale of 1832 that the defendants claim. It was given in evidence, not by them, hut by the other party, and I cannot see the force of their objection to the first redemption.

The question of the agency of Joseph Turner was fairly submitted to the jury.

The letters of Joseph and James Turner, and the receipt of Isaac M. Watts, were irrelevant and properly rejected.

The list of unseated land, and the return of the supervisors, mentioned in the sixth bill of exceptions, would not have changed the legal effect of the sale of 1832, and therefore ought not to have been received.

I have thus far disposed of the 3d, 4th, 5th, 6th, 7th, 8th, and 9th assignments of error.

The 1st, 2d, and 10th, relate to the purchase by Huzzard from Bleakley, and will be considered together.

Bleakley testifies, that some time after his purchase he had a letter written to the heirs of Dunwoody. That Huzzard came on, and told him that he was the man who was appointed by the heirs to come and get his claim up, and purchase it in some way. That he went with Huzzard to the land and showed him the lines. Huzzard told him that his title was worth nothing; that he could easily get round it, but that he had acted honorably in writing to them, and he wanted him to get something. That he would give him his note for $115 if Bleakley would give him a deed in his own name, until such time as the heirs would fix it with him; that when he got home they would fix it all right. He said repeatedly every heir should get their share; all he wanted was to secure himself as to the $115.” Part of the contract was that the heirs were all to get their shares.

The consideration was paid by Huzzard, viz. $115. Upon his cross-examination the witness stated that he would not have sold to Huzzard if he had not said he was buying for the heirs; and that if Huzzard had not bought he would have given it up to the heirs.

The deposition of Albert Way was read in evidence, which proved, that in the fall of 1838, Huzzard told him he had been out to see about the Indiana lands ; that they had been sold for taxes, and he had redeemed them for the heirs. Said that he would be willing to take the land at a fair valuation and pay off the heirs. He made no claim to the land himself. Mrs. Way, the wife of the witness, was one of the heirs of Dunwoody.

Under this evidence, the judge below instructed the jury, that if the witnesses were believed, it would be a fraud upon the heirs of Dunwoody to allow Huzzard to keep the land; and that his attempt to do so authorized a recovery without previous actual or proffered reimbursement.

If Huzzard in obtaining the conveyance from Bleakley was acting as agent for the heirs of Dunwoody, everything that was done by him should enure to their benefit. If he was intrusted by them to negotiate with Bleakley for the redemption or purchase of the land, he could not, by taking the deed in his own name, set his constituents at' defiance. Huzzard surely cannot complain if he is taken at his word. He told Bleakley that he was acting for the heirs, and Bleakley says that it was upon this representation that he was induced to part with the title. If he had acted Ihonestly he could have held the estate until he was repaid his advances ; but his conduct in denying the claim of his principals leaves him without even this ground to fall back upon. We see no error in this branch of the case.

The defendant was not protected by the statute of limitations under the Act of 1804, nor was he entitled to compensation for his improvements.

Judgment affirmed.


text:
    Speer versus Plank-Road Company.
    When a bill has passed the Senate and House of Representatives, and been approved of by the governor, it is a law. The constitution does not require that it be signed by the presiding officers of the two houses; nor is there any general Act to that effect.
    Error to the Common Pleas of Allegheny county.

    This case was brought into the Common Pleas by appeal from the judgment of an alderman in a suit by The Allegheny and Manchester Plank-Road Company v. James A. Speer, to recover the balance due on a subscription for three shares of the stock of the said company at $25 per share.
    The pleas of defendant were nul tiel corporation, non assumpsit, and that he subscribed on condition that there should be no tollgate in the borough of Manchester, and that there was one erected therein.
    The subscription, however, was not conditional, and no condition as to the subscription was proved otherwise.
    The Act under which the charter was obtained was passed on 6th May, 1850, and on the face of the published Act (see page 699) it appears not to have’been signed by the speakers of the Senate and House. It was however approved by the governor.
    Another Act was passed on 21st April, 1852 (Acts, p. 374), providing, inter alia, that the Act of 1850 is declared to be as valid and effectual as a law, as if the same had been duly signed by the speakers of each branch of the legislature; and also validating acts of the company done previously.
    On the trial the Court was asked to charge: 1. That to constitute a valid Act of Assembly, it should be signed by the speakers of the Senate and House. 2. That the Act being void, the charter was void. 3. That the company had no corporate existence at the time the defendant contracted to pay for the stock. 4. That the contract being void, the Act of 1852 could not give vitality to it.
    McClure, J., refused to charge as requested, as he said, at the instance of a corporation in this collateral proceeding; but he charged that the defence was not available.
    Yerdict was rendered for plaintiff for $55.
    It was assigned for error that the Court erred in negativing the points submitted.

      McConnell, with whom was Robb, for the plaintiff in error.

      Bakewell and Campbell were for defendant in error, but the Court declined to hear an argument in reply.
   The opinion of the Court was delivered by

Knox, J.

This action was brought by the Allegheny and Manchester Plank-Road Company, to enforce the payment of a subscription to the stock of the company.

The defence was that the Act incorporating the company is void, for the reason that it was not signed by the speakers of the two houses.

It is not denied but that the bill incorporating this company, passed both houses of the legislature, was approved by the governor, enrolled in the secretary’s office, and published in the pamphlet laws of the session, and that the charter issued to the corpora-tors ; but it is contended that in the absence of the signatures of the speakers of the Senate and House of Representatives, all this is of no avail.

That the position assumed by the plaintiff cannot be sustained, is too plain for argument.

When a bill has received the sanction of the Senate and House of Representatives, and the,executives’ approval, it is a law; and the highest evidence of its authenticity is the enrolment in the secretary’s office; and the certificate of the secretary is conclusive evidence that this Act was thus entered of record.

There is nothing in the constitution requiring the signatures of the presiding officers of the two houses to be annexed to a hill preparatory to its becoming a law. Neither is there any general statute to this effect. Each branch of the legislature by its own rules has adopted this as a safe and convenient method of signifying to the governor what bills are ready for his approval or rejection, and for this purpose the practice is, one of great utility, serving as it does to guard against mistake or imposition; but the signatures áre no part of the law-making power, and their absence detracts nothing from the force of the enactment.

This view of the case renders it unnecessary that we should consider the other questions raised. The Common Pleas properly held that there was nothing in the defence.

Judgment affirmed.


author: Black, C. J.

text:
    Caldwell versus Walters.
    An action of trespass for mesne profits, cannot "be sustained by one who has recovered in ejectment but who is not in possession of the premises.
    Error, to the Common Pleas of Erie county.

    This was an action of trespass quare clausum fregit by Jane M. Walters v. James Caldwell and Daniel McDaniel, to recover mesne profits. The defendants plead not guilty.
    Daniel McDaniel, Sen., originally owned the land described in the plaintiff’s narr. He died intestate in the year 1813, leaving six children, one of whom was Jane M. Walters. She, together with her husband, in the year 1829, gave a judgment bond to Elizabeth Stewart, upon which judgment was entered, and under it the interest of Jane M. Walters in the said land was sold upon a venditioni exponas to the said Elizabeth Stewart, in April, 1880. Elizabeth Stewart and her grantees were in the actual possession and occupancy of said land from 1830 till the trial of this case.

      In the year 1847, Jane M. Walters brought an action of ejectment for the undivided sixth part of said land against James Caldwell, Daniel McDaniel, and Elizabeth Stewart; and recovered a verdict and judgment thereon, which was removed by writ of error to the Supreme Court and affirmed. See report of the case in 6 Harris. The judgment was affirmed on 1st October, 1851.
    . On the 2d February, 1852, the petition of Jane M. Walters was' presented to the Orphans’ Court of Erie county for an inquest of partition or valuation. On the 29th March, 1852, the inquest reported a division of the land into two parts. Exceptions were filed to the proceeding, which were not disposed of when this suit Was brought.
    This action was brought to November Term, 1851, without the plaintiff having obtained possession of the premises recovered, by habere facias, or otherwise.
    Knox, President Judge, charged the jury that the verdict and judgment in ejectment were conclusive evidence of the plaintiff’s right of action; and that actual possession, since the recovery, was not necessary in order to maintain it.
    Verdict was rendered for the plaintiff.
    The instruction referred to was assigned'for error.

      Marshall, for plaintiff in error.
    It was alleged that the effect of the verdict and judgment in the ejectment was to establish the plaintiff’s title, but that title alone was not sufficient to sustain trespass; that the plaintiff must have possession: 2 Bouvier’s Inst. 559; 10 Pick. 161; 17 Mass. 299; Adams on Ejectment 389; 7 Cowen 36, Jackson v. Combs; 2 W. & Ser. 308.
    If the plaintiff, after recovery in ejectment, is remiss for years in obtaining possession, he cannot charge the defendant as a trespasser: 3 Yeates 13.
    As to third persons, the judgment in ejectment is not conclusive: 11 Wheaton 280.
    It was alleged that if this action can be sustained before possession, the plaintiff will be enabled to sustain two actions against the same defendants, for the same entry, viz.: one for the mesne profits which accrued prior to the judgment in ejectment, and another for the mesne profits which accrued after such judgment. The law abhors multiplicity of actions.

      Walker, with whom was W. A. Galbraith, contrà.
    It was said that the issuing of a writ of habere facias, in this case, would have been an idle ceremony; for, as the recovery .was for only an undivided sixth part of the premises, she could not be put into actual possession of her part, as it was not set apart for her. It was said that the action for mesne profits, though in form trespass, was in substance for use and occupation; and that it was not necessary to prove an actual trespass in order to recover mesne profits: 9 Ser. & R. 101; 7 Barr 25; 1 Peters C. C. R. 299; 2 Barr 202. In Jackson v. Coombs, 7 Cowen 36, it is said, “It is usual to produce the writ of possession executed, but this is not indispensable.” That the action for mesne profits has been considered as an equitable action for compensation for use and occupation is shown by the fact that the taxed costs of the ejectment may be recovered with the mesne profits as damages: Esp. R. 358; Adams on Ejectment 338; Id. 330; Id. 336; 3 Harris 417.
   The opinion of the Court was delivered by

Black, C. J.

The only point in this case is, whether trespass for mesne profits can be sustained by a plaintiff who has recovered in ejectment, but never took possession.

Possession of the loans in quo of a trespass is the test of the right to sue for it. For an injury to wild land the owner may maintain an action by showing his title to it, but this is on the principle that the law gives him a constructive possession. When another person has the actual occupancy the exhibition of a paramount title is not sufficient to sustain trespass, either against the disseissor or against anybody else. The right of the true owner to the use and profits of the land is suspended until he regains possession either by an entry or under a legal judgment. During the continuance of the disseisin the freehold is in the disseisor; (14 Mass. 96; 17 Mass. 299; 10 Pick. 161); and he alone has the right to receive the profits or to recover for any direct injury done to the land.

Does a judgment in ejectment put an end to the disseisin ? Certainly not. It may settle the title in favor of the plaintiff, but the all-important fact of an adverse possession remains just as it was before. That the attitude of the parties has not been considered as changed by the judgment alone, is proved by the case of Rambler v. Tryon, (7 Ser. & R. 90,) in which it was held that after judgment in one ejectment, a second action of the same kind might be immediately brought against the same defendant, and prosecuted on the same title as the first, unless the defendant chose to disclaim and in due time expressed his willingness to surrender.

Of course we do not say that a writ of habere facias possessionem is in all cases indispensable. If the possession is voluntarily given up, the right to institute the action for mesne profits is as clear as if it had been forcibly taken under a writ: (7 Cowen 36.)

Judgment reversed and venire facias de novo awarded.


text:
    Hoar versus Axe.
    1. The Act of 1848, relative to married -women, permits a wife to be the owner of property real and personal, as if she were a feme sole. As between her and her husband possession or use is no evidence of title in the one against the other.
    2. In a suit by the wife against a creditor of her husband, in order to recover for taking property she must prove that she was the owner of it at her marriage, or acquired it afterwards.
    3. But in a suit in the name of the husband and wife for her use, against one who has taken property from her possession without showing any claim under her husband or herself, but appears in the transaction as a mere trespasser, the defendant has no right to dispute the assertion of both the husband and wife that the property belonged to the wife.
    Error to the Common Pleas of Warren county.

    This was an appeal entered to September Term, 1852, from the judgment of a justice of the peace in an action of trespass by Ptolme Axe and Emeline Axe his wife, for her use, v. Lemuel Hoar. It was brought for taking away a yoke of oxen, a cooking stove, and other personal property, which, on the part of Emeline Axe, were claimed as her separate property. The plea was, not guilty.
    On the trial, testimony was given on part of the plaintiff to the following effect:
    Charles Anderson, sworn: About a year ago I took a yoke of cattle, a cooking stove, a grindstone, and cross-cut saw, and ox-yoke, by directions of defendant; oxen worth from $50 to $60.
    * * * * * * * * * *

      I found the property in the possession of this woman, Mrs. Axe. It was not far from the middle of July, 1852.
    Cross-examined: The oxen were across the river, in Hailey’s field. I called on her for the property. She told me where the oxen were, and I went and got them'. She had the other things at her house.

    Henry Grander: I have seen the oxen—worth from $55 to $60. * * * . I think the plaintiff got the property the first Monday in June, 1852. It was the first day of June court.
    Cross-examined: I did not see it then. I thought it came then, because Ptolme Axe wanted my wagon then, to get some things. Plaintiff lives on the opposite side of the river from me, on land left by Mrs. Axe’s first husband. It belongs to her and her children ; never heard that Ptolme Axe bought it.
    Direct examination resumed: I saw this property two or three weeks before Anderson took it. The day Anderson came she had loaned the oxen to plough.

    On part of the defendant, the Court was requested to charge, that in order to sustain the suit, there should be evidence that Emeline Axe was the owner of the property in question, or that she was a joint owner with Ptolme Axe, and that there is no sufficient evidence of that fact in this case. 2. The legal presumption is that the property on the premises was the property of the husband. 3. That the possession of the wife is the possession of the husband ; and if found in her custody it is not sufficient from which to infer ownership in the wife.-
    Galbraith, J., charged the jury, inter alia: “The plaintiff’s' counsel refer to the 39th section of the Act of 25th April, 1850, (.Pamphlet Laws, 1850, page 576). The use, recited on the record, to Emeline is a matter of no consequence; no proof need be offered of that. He, the defendant, offers no evidence. He appears in no other light, by the evidence, than as a trespasser. It is not a matter of his concern whether the property belongs to the husband exclusively, or was the separate property of his wife; and so far as he is concerned in this suit, we think there is sufficient evidence from which it may be presumed that the property here belonged to the wife, and therefore the suit is rightly brought in the name of the husband and wife. The evidence is referred to you, and if you think it sufficient, you will find .for the plaintiff-the value of the property taken, with such damages as you may consider reasonable, under the circumstances. * * * *
    * * * With these qualifications, defendant’s points answered in the affirmative.;”
    June 10, 1853, verdict for plaintiff for $83.74.
    It was assigned for error that the Court erred in charging that it was not a matter which concerned the defendant whether the property in dispute was the exclusive property of the husband or the separate property of the wife. 2. That there was sufficient evidence in the cause for the jury to infer that the suit was rightly brought in the name of the husband and wife. 3. That the Court did not answer the points:
    In the Act of 25th April, 1850, section 39, it is provided as follows :
    “ Any suit or suits at law hereafter to be commenced in any of the Courts-of this Commonwealth, touching or concerning or for the recovery of any- property, real, personal, or mixed, belonging or secured to any married woman by virtue of the provisions of the Act relating to the rights of married women, passed the 11th day of April, 1848, may be brought in the names of such married woman and her husband, to the use of the said married woman; and a recovery in such suit or suits shall be for the exclusive benefit of such married woman.”

      Brown, for plaintiff in error.
    It was said that the legal presumption was that whatever property is in the possession of the husband is his, and not his wife’s; and the burden of proof is on her to show her separate ownership. It was contended that there was no such evidence in this case.

      Schofield, contrà.
    It was said that the wife had the possession of all the property which was taken. That whether the property belonged to the husband or wife was no concern to the defendant, as he did not show any claim to it under either of the plaintiffs. Even before the Act of 1848, the law permitted her to possess and sue for such chattels as it permitted her to own. As to such chattels, the rule of law; making possession sufficient to maintain trespass, was applicable: Herr’s Appeal, 5 W. & Ser. 499; 2 Atk. 77, case of jewels claimed by the wife. But since the Act of 1848, the wife’s chattels are not more transferred to her husband than her paraphernalia: 1 Jones 272, Oumming’s Appeal; 1 Harris 480, Goodyear v. Rumbaugh. If the property had been taken on execution against the husband, a different question might exist. In a contest with his creditors it might be incumbent on her to show title as well as possession. But here, the defendant has shown no claim whatever, but it is contended on his part, that he is not bound to' make reparation till demanded by the husband. But here, the husband appears in Court consenting to the suit. Before the Act of 1848, when the husband might take the wife’s choses in action, the law would not oblige him to do so, even in favor of his creditors: Timbers v. Katz, 6 W. & Ser. 290-298-299-300. .
    But it was contended that there was strong circumstantial evidence in this case, that the property belonged exclusively to the wife. The farm on which she lived belonged to her and her children by her former husband. One witness said he called on her for the property. She told him where the oxen were. She had the other things at her house. Another said that she had loaned the oxen to plough.
   The opinion of the Court was delivered by

Black, C. J.

The defendant below took and carried away certain personal goods, which the plaintiffs allege to have been the property of Emeline Axe, the female plaintiff. The taking seems to have been a mere naked trespass not only without justification but without excuse. No defence was made, but it was objected .that the evidence was insufficient to show the wife’s title ; and if the property belonged to the husband there could be no recovery in the name of the husband and wife. It is not denied that either one or the other was the owner.

The act of 1848, relative to married women, permits a wife to be the owner of property, real and personal, as if she were a feme sole. As between her and her husband, possession or use is no evidence of title. Either may have the other’s goods in his custody, without thereby giving even a creditor the right to treat the one who has it as the owner. The proposition which used to be a maxim, that the possession of the wife is the possession of the husband, is no longer any truer than its converse. If the husband sells it, or a creditor levies on it for his debt, and a suit is brought to recover it or the value of it for the use of the wife, she must prove by clear and satisfactory evidence that she was the owner of it at the time of her marriage, or acquired it afterwards in some way which excludes all reasonable suspicion that it is the husband’s, But where the suit is against one who can set up no pretence of claim to it through or under the husband, what right has such a person to deny the assertion which both the husband and the wife make that it belongs to the latter ? Here is property carried away and converted to his own use by a mere wrongdoer. A married woman brings suit to recover compensation for the injury. She alleges that it was hers. This fact no human being but her husband has a right to deny, and nobody else could be honestly benefited by showing the contrary. The husband, instead of denying it, comes with her into Court and joins in her allegation. .Thus the only person, besides herself, who could claim it, admits it to be hers. Is this no evidence of title in the wife ?

It follows from what I have said, that the defendant had no right to expect an affirmative answer to any of his points. The charge is much more favorable to him than his case deserved.

Judgment affirmed.


text:
    Erie City versus Schwingle
    1. A corporation which is hound by its charter to keep the streets in repair, is liable for an injury occasioned by its neglect to do so; and it is not material whether the neglect was wilful or otherwise.
    2. The carriage of the plaintiff was upset whilst passing along a way deviating from the street on which he had passed, and leading to the crossing of a stream in a borough, the bridge over which had been carried away by flood, by which accident his leg was broken., It was Held, that although there were other streets in the borough by which the plaintiff could have safely reached the point towards which he was going when the accident occurred, yet if the officers of the borough, permitted the street to be used without warning the public of its imperfect condition, they cannot charge the plaintiff with inexcusable negligence or want of ordinary, care in using it.
    3. Culpable negligence, or want of ordinary care on the part of the party injured, would have been a defence; but the burden of proving such lay on the corporation, the defendant in the action.
    4. The act of incorporation prohibited, the borough officers from levying in any one year, a tax exceeding one half of one per cent, on the valuation, “ unless some object of general utility should require the same, in which case the assent thereto of a majority of the taxable inhabitants of said borough shall be previously obtained in writing.” It was Held, that the rebuilding of a bridge to accommodate the public in travelling along a public street, is an object of general utility.
    5. The people of the borough are the corporators, and they cannot allege their unwillingness to perform a duty as an excuse for its non-performance.
    6. It is not necessary, in a suit against a corporation for negligence in repairing a street, to recite in the declaration the Act of Assembly which binds the corporation to keep its streets in repair, nor to aver that the corporation had funds to do so.
    7. If the narr. in such a case were defective, this Court would not reverse for that reason if the point were not made in the Court below.
    Error to the Common Pleas of Brie county.
    This was an. action on the case by Christian Schwingle v. The Burgess and Town. Council of The Borough of Erie, now the City of Erie. It was brought to February Term, 1848, to recover damages for an injury sustained by the plaintiff.
    It appeared that on the 16th of August, 1846', a bridge, across Mill Creek, on Eighth street, in the borough of Erie, had been carried away by a flood. A way was dug by which wagons descended to the creek. Whether this passage had been made by order of the borough authorities or not, it was said did not appear.
    On the 12th September next following, the wagon of the plaintiff was overturned whilst he was driving round the end of the bridge, and his leg was broken; and this action was brought to recover for the injury.
    It appeared that there were a number of streets in the borough running parallel with Eighth street, extending east and west, crossing the said Creek, on two of which, Sixth and Ninth, there were bridges at the time, and by which access could have been gained to any point which could have been gained by crossing at Eighth street. Also, that there was another safe crossing, used by the public as a common highway, between Seventh and Eighth streets. Also, that the plaintiff knew that the bridge on Eighth street was gone.
    It was also alleged that the whole amount of tax allowed by law (half of a cent on the dollar of valuation), for several of the years next preceding had been assessed, and was exhausted in repairs of streets, &c. That the tax of the year 1846 had been exhausted, and that there was not in the treasury money sufficient to erect the bridge in question, and that the borough was in debt.

      A number of points were submitted on part of the borough.
    1. That the defendants, in their legislative capacity, were the judges, in view of the means of the borough, as to the bridges to be built or rebuilt; and that they were not liable to the plaintiff for delay in respect to the rebuilding of the bridge on Eighth street.
    2. That they were liable, if at all, only for wilful misconduct in the matter, which was not to be presumed.
    3. That the plaintiff not having proved or alleged that there were funds in the borough treasury sufficient to rebuild the bridge in question, and the Act not authorizing the borough officers to make an assessment beyond half a cent on the dollar of valuation of taxable property in the borough, the suit could not be sustained.
    The 4th was to the effect that the defendants, having assessed for 1846 a tax to the amount of five mills on the dollar, had anticipated their funds, so that there was not, at the time the bridge was destroyed, sufficient money in the treasury to rebuild it, and that they.were not bound to incur further indebtedness for its reconstruction.
    5. That the defendants were not bound to construct a safe wagon-road round the end of the bridge, if, by Sixth, Seventh, and Ninth streets, access could have been had by any point on Eighth street, east and west of the bridge; and that there being no evidence that they ordered the road, on which the plaintiff was passing, to be opened, they were not liable for the accident which happened on it.
    The Court charged, in answer to the first point, that the city was bound to keep its streets and bridges in repair; and when a bridge was carried away, it was bound to reconstruct it in a reasonable time, if necessary for the travelling public. He said, however, that this rule did not apply to county bridges. 2d. That it was not necessary that there should be wilful, designed misconduct. That omission to perform the duty was sufficient. 3d. That want of funds would not excuse the borough for not erecting the bridge, as the law provides a way by which funds could be raised; but that the state of the treasury should be considered in determining the question whether or not the bridge was rebuilt within a reasonable time; or rather whether there was negligence in not rebuilding it prior to 12th September, 1846.
    5th. The defendant was bound to construct a wagon-road down the hill to the water, if such road could be made by a small expenditure, so as safely to accommodate the public, unless the public were equally well accommodated in some other way ; and even if this were not so, if the road was opened down the hill by those in the employ of the borough, and used by the public with the knowledge of the borough supervisor, it was his duty so to repair it that by the use of proper precaution it would be safe, and a failure to do so, if the occasion of injury, would render the city liable.
    Verdict was rendered for the plaintiff for $516.
    It was assigned for error, that the Court erred in not answering the 1st and 2d points in the affirmative. 2. In answering the 3d and 4th points in the negative. 4. That there is no legal cause of action set out in the narr. The objection to the declaration was that it set out no Act of Assembly making the corporation liable for the omission complained of. And secondly, that it was not averred in it that the defendants had either “the means or the power of obtaining the means to reconstruct the bridge in question.”
    By the Act of 18th April, 1795, (3 Smith’s Laws 234) commissioners were appointed to lay out the town of Erie. The town was laid out in three sections. By the Act of 20th March, 1805, the first section of the town was incorporated into a borough. The maximum of tax authorized to be assessed was five mills on the dollár. By the Act of 8th April, 1833 (Acts 275), the original Act of incorporation was remodelled, and the powers of the burgess and council were enlarged.
    The ninth section provides that it shall be the duty of the burgess and council to meet as often as occasion may require; and said burgess and council shall have power at such meetings to enact, &c., such ordinances “ as shall be expedient to promote the peace, good order, and benefit of the citizens of said borough; to provide for the regulation of markets, improve, repair, and keep in good order the streets,” &c.; and the said burgess and council shall have power to assess, apportion, raise, and appropriate such taxes as shall be by them deemed necessary for repairing the streets, and for carrying the by-laws, ordinances, &c., and objects of general utility into complete effect, &c. Provided, that in laying and assessing such tax, due regard shall be had to the valuation of taxable property assessed for the purpose of raising county rates and levies, so that said tax shall not in any one year exceed one half of one per cent, on the dollar of such valuation, “unless some object of general utility should require the same, in which case the assent thereto of a majority of the taxable inhabitants of said borough shall be previously obtained in writing.”

      Babbitt, for plaintiff in error.

      Walker and Thompson, for defendants in error.
    That a corporation, municipal or otherwise, may be sued for acts improperly committed by its direction or for neglect of duty, reference was made to the case of Dean v. New Milford Township, 5 W. & Ser.
      545; 15 Johnson 253, Bartlett v. Crozier; Angell & Ames on Corp. 382-3; 4 Ser. & R. 6; 3 Hill 331, Baily v. Mayer, &c.; 10 Barr 95, Commissioners v. Wood.
    It was further contended that it was not necessary to set out in the narr. the Act creating the borough. That a borough is a known political institution, and the Act creating it need not be recited in the narr.

    But it was contended that it was sufficiently referred to in stating that by the laws of the Commonwealth in that behalf provided, the defendants had the charge and care and were bound to keep the streets in the borough safe, and in good repair, &c. It was said that this was sufficient even before verdict, but that after verdict it was certainly sufficient: 4 Ser. & R. 6.

   The opinion of the Court was delivered by

Black, C. J.

The principal question in this case is, whether a city corporation, bound by its charter to keep its streets in repair, is liable for an injury occasioned by neglect to do so.

Every highway or thoroughfare, which the public has a right to use, must be kept, by somebody, in such order that it can be safely used, and if any serious injury happens to an individual in consequence of its bad condition, those who are bound to repair must answer in damages. In Beatty v. Gilmore, (4 Harris 463,) a person who had dug a hole in the pavement, and violated his duty by leaving it exposed, was held liable to a party who fell into it and broke his leg. In Bartlett v. Crozier, (15 Johnson 250,) an action was sustained against an overseer of the highway, who had the means of repairing the roads in his hands, but neglected to do it, and caused a loss to the plaintiff. In Townsend v. The Susquehanna S. R. Co., (6 Johnson 90,) a private corporation which had failed to keep up one of its bridges, was held liable for a similar loss. In Dean v. New Milford Township, (5 W. & Ser. 545,) it was decided that damages might be recovered against a township for the injury sustained in consequence of the non-repair of a public road. And in the Commissioners of Kensington v. Wood, (10 Barr 93,) it was said by this Court that the liability of the corporation, for any injury arising from the unskilful, inartificial, or improper manner, in which the paving and grading of a 'street was done, could not be controverted. To these authorities may be added the case of Pittsburgh v. The Owners of the Steamer Mary Ann, (10 Harris 54, &c.) in which we held that the city corporation, having the care of a port, was responsible for the .loss of a vessel which had been wrecked for want of a safe landing-place. I have cited these several cases to show that a party bound to repair, whether it be an individual, a private corporation, a township, district or city, must perform the duty or pay, in an action on the case, for all injuries to persons and property, which may becaus’ed by the omission. Except in eases where the suit is against a public officer in his individual character, and not against the corporation which he represents, (as in Bartlett v. Crozier,) it makes no difference whether the neglect is wilful or otherwise.

It was contended on the trial, that, inasmuch as there were other streets by which the plaintiff might have reached any point at which he could have been aiming when he was hurt, it was his own folly to go over an unbridged stream and expose himself to the injury which he suffered. But if the officers of the city permitted the street to be used without warning the. public of its condition, they cannot charge the plaintiff with inexcusable negligence of his own safety, in doing what -they themselves took no measures to prevent. They invited him into that street by not closing it up, by allowing it to be used without objection, and by putting certain repairs upon it which made it not safe, but passable with skilful driving and good luck. Culpable negligence or want of ordinary care on the part of the plaintiff would have been a defence. But the burden of proving it was rightly held in Beatty v. Gilmore to lie on the defendant. No proof of that kind was offered, except what may be inferred from the plaintiff’s hot going around some other way. We are very clear in the opinion that that amounts to nothing in the circumstances of this case.

The charter of the city forbids any tax for city purposes greater than the half of one per cent, on the valuation. This had been laid and expended. But the charter says, that a larger tax may be laid with the consent of a majority of the inhabitants, if it be required for a purpose of general utility. The rebuilding of a bridge to accommodate the public in travelling along a public street is an object of general utility. A tax beyond the half per cent., therefore, for that purpose, might have been laid, unless a majority of the citizens had refused to permit it. The people of the city are the corporators. It is they who are sued under the corporate name. It is they who must pay this judgment, if it is to be paid at all. They are defendants in this action. It will not do for them to allege that they are' unwilling to perform a duty, and hold that up as an excuse for its non-performance. The Court of Common Pleas was right in saying that the want of funds was no excuse. I will not say that damages’ can be recovered for an injury like this from a municipal corporation, which has no means at all of raising a corporate fund to repair its roads and bridges. That cannot be a legal duty which the law does not permit to be executed. But in this case the city had a corporate fund, capable of being increased to any extent, by the immediate act of the people. If a mere vote of the council could have laid the tax, their disinclination to do so would hardly have been thought of as a defence. The people being their own representatives in regard to all taxation, beyond a half per cent., they are bound to see to it themselves as much as the council would have been, if the matter had been intrusted to their discretion. No matter where the authority of a municipal corporation may be lodged, nor what organs may be designated to speak its will, neither the council nor the people can rid themselves of a public duty, by any vote of their own, or any refusal to vote.

It is assigned for error here, that the narr. sets forth no cause of action. It is not necessary to recite, in the declaration, the Act of Assembly which binds the city to keep the streets in repair, nor to aver that the city had funds to do it. But, even if the narr. were deficient, we would not reverse for that reason, because the point was not made in the Court below.

Judgment affirmed.