text:
    Moderwell versus Mullison.
    1. When real estate is brought into a partnership it is treated as personal estate, and a lease of it by one partner in his own name enures to the benefit of the firm.
    2. In a suit by one who had been a tenant to recover from the defendant an amount of rent alleged to have been illegally obtained from him, the tenant offered evidence tending to show that the lease from the. defendant was a lease from the firm and not from the defendant in his exclusive right: Held, that it was not a proper objection to such evidence that it tended to impeach the title of his landlord. The evidence was not liable to rejection on the assumption of the fact in dispute.
    Error to the Common Pleas of Lancaster county.

    This was an action of assumpsit by A. P. Moderwell v. Reuben Mullison to recover above $40 which had been paid by him under the pressure of a levy under a landlord’s warrant issued by Mullison against Moderwell, under which a levy had been made on certain personal property of Moderwell. On 10th March, 1849, a written lease was made to Moderwell of a coalyard in Columbia, for one year from 15th March, 1849, at a rent of $175, payable in half-yearly payments. The lease was not set out in the paper-book, but it was stated by Collins that it was signed “ Mullison & Collins.” It was also signed by Moderwell.
    A receipt was given in evidence, dated July 21, 1849, by Reuben Mullison to Moderwell for $43.75 for one quarter’s rent; also another receipt by same dated Nov. 27, 1849, for $42.75, for quarter’s rent till 15th September, There was given in evidence, an order dated Dec. 11, 1849, signed Mullison & Collins, in favor of one Farrington for $87.50, the balance of rent due for coalyard till April 1,1850. This order was_ signed Mullison & Collins. On the back of it was an acceptance dated Dec. 11, to be paid when due. A judgment was obtained on this order, and it was ultimately paid. Another paper was produced signed Mullison & Collins for Thomas Collins, by which the acceptance was acknowledged. Afterwards was executed a landlord’s warrant signed Reuben Mullison, dated 6th February, 1850, for one quarter’s rent due on 1st Dec. 1849, and under this the levy complained of was made. The quarter’s rent was paid by Moderwell in order to avoid a suit at that time.-
    The order signed Mullison & Collins, and the acknowledgment of acceptance, were given in evidence on part of plaintiff, defendant’s counsel excepting; and the admission of the landlord’s W'arrant was also excepted to.
    On the part of the defendant testimony was given to the effect that Moderwell had stated that he had leased the lot from Mullison. That after some time in the spring of 1849, Mullison objected to its use, and alleged a violation of contract; and that afterwards Moderwell said that he had obtained an article of agreement from Qollins.

    On part of defendant it was further testified that both Mullison and Collins said that they had dissolved partnership: this was probably before 1849. The lot was assessed in the name of Mullison Collins. The Court refused to permit the plaintiff to prove to whom the lot belonged. Exception was taken. ’ 1
    On the part of plaintiff it was offered to prove by Collins, who was released, that the property in question was the property of Mullison & Collins as partners, of which firm defendant was a member; that Mullison sometimes rented the lot for the firm and sometimes the witness, and that this mode was always acquiesced in by both: and further, that the payment to Farrington by plaintiff was in satisfaction of a partnership debt of Mullison & Collins. The evidence was objected to. The objection was sustained and exception taken on part of plaintiff. This bill was marked A.
    It was further proved that Mullison said that he had rented the property to Moderwell, and that (Collins, the witness) acquiesced in the same.
    On the part of the plaintiff it was then offered to ask the witness whether Mullison gave him this information as a matter of partnership business. Disallowed and exception taken. The bill was marked D.
    It was further offered to prove by the same witness that Mullison & Collins were the owners of the property at the time, and that this was known to Moderwell. Disallowed and exception taken. Bill marked F.
    Long, J., charged, that the material question was, from whom was the property rented? Was it from Mullison & Collins, or from Mullison alone ? That if the property was leased from Mullison, the plaintiff would be concluded by such lease, “unless the testimony shows that he rented the property from Mullison as a partner of Mullison & Collins.” That a tenant was not allowed to controvert his landlord’s title by setting up another in opposition to it; and that it was therefore immaterial in whom the title of the lot was at the time of the lease. The question was, “ from whom did Moderwell rent? Was the property rented from Mullison,” in his individual right ? and did the plaintiff, “ in pursuance of that lease, enter into the possession of it?” If he did, the plaintiff would be answerable to the defendant, Mullison, for the rent, even though he afterwards leased the property from Collins as the property of Mullison & Collins.
    September 1, 1852, verdict for defendant.
    Error was assigned to the rejection of the evidence to prove that the title to the lot was in Mullison & Collins; and also to part of the charge above referred to.

      Frazer, for plaintiff.
    — 1. The Court erred in rejecting the offer of plaintiff to show that the lot in question was the property of Mullison & Collins; and if so, it was immaterial how Mullison rented it to plaintiff; the rent enured to Mullison & Collins, and belonged to the partnership. Also, in rejecting the evidence offered to show, that the lot belonged to Mullison & Collins in 1849. The defendant had not shown whether the lease by him was in his individual right, or for the firm. Real property may, by agreement of partners, be brought into the common stock, and be considered as personal property : 7 Ser. JR. 441, McDermot v. Lawrence. When land is brought into a concern as stock, it is between the partners and a person who has knowingly dealt with one of them for it, to be treated as personal estate: 1 Harris 551, Lancaster Bank v. Myley. (See also Kramer v. Arthurs, 7 Barr 165.)

      Ford, with whom was Fordney, contó.
    — The question submitted to the jury was, whether the plaintiff held under the agreement with Mullison, or under the one from Collins for Mullison & Collins.
    June 9, 1853,
    It is not admissible for a tenant to dispute the title of his landlord : 2 Bin. 473; 5 Watts 64; 6 Barr 154, Baskin v. Seechrist.
   The opinion of the Court was delivered, by

Woodward, J.

— The general question of fact in this cause was, whether the plaintiff, Moderwell, rented the lot in question of the defendant Mullison, or of the firm of Mullison & Collins, of which the defendant was a member. The plaintiff, to establish a renting from the firm, relied on a written lease of 10th March, 1849, in the name of the firm to himself. The defendant proved his own and Moderwell’s declarations to the effect, that the leasing was by parol from Mullison alone. The plaintiff then offered to repel the presumptions arising from these declarations by giving in evidence the facts mentioned in the bills of exception designated A., D., and F., which the Court excluded.

. We think the evidence ought to have been admitted. It -was in harmony with the written lease, and tended to establish the plaintiff’s main proposition, that he rented of the firm. And besides, if this lot were partnership property, and used as such, the lease, though made by Mullison in his own name, would enure to the benefit of the firm; for partners are the agents of each other in partnership transactions; and when real estate is brought into the partnership business, it is treated, in equity, as personal estate, and a lease of it by one partner is as much a partnership transaction as a sale of partnership goods by him would be.

What was the objection to the evidence ? That a tenant is not permitted to impeach the title of his landlord. But this rule, applied here, involves a complete petitio principii, for the very point in issue is, Who was landlord ? If evidence may not be given tending to prove that the firm rented the lot, because it would impeach Mullison’s title, you have decided that he was the landlord. The rejection of the evidence was the assumption of the point to be demonstrated; and to assume a disputed point, and then to exclude evidence tending to impeach the assumption, is a more safe way of reasoning than it is sound. The evidence should have gone to the jury, and if it satisfied them that the lot was held and used as partnership property, the plaintiff’s payment of the partnership draft on account of rent was regular, whether he leased of the one partner or the other.

We see no error in the other bills of exception. The evidence contained in them related to other transactions not in issue here, and therefore not relevant. Nor is there anything in the assignments of error to the charge of the Court. The question in the cause was fairly put to the jury on the evidence before them, the only mistake consisting in excluding evidence which ought to have been admitted.

The judgment is reversed and a venire de novo awarded.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Stehman versus Huber.
    1. When land is held in common by a married woman and others, and they all join in a partition and her share is conveyed to her and'her husband, the law looks at the character of the transaction rather than at the form of the conveyance in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one._
    2. If the husband has paid money for equality of partition, and the conveyance be to the husband and wife, he acquires an interest in common with her in proportion to the amount paid by him.
    3. Where a husband conveys in fraud of creditors his life estate in land held in right of his wife, the creditors may levy on ihe growing crops as his property.
    4. The married woman’s act of 1848 was not intended to take away the vested rights of the husband, and does not allow him to give them away in fraud of his creditors.
    Emaon to the Court of Common Pleas of Lancaster county.

    This was an amicable action in which Anna Stehman was plaintiff, and Jacob Huber was defendant, entered into to try the right of the plaintiff to certain personal property, levied by the sheriff, at the suit of Stehman’s heirs v. Tobias B. Stehman; and also to settle the right of the defendant, as sheriff, to levy on said property, for the use of the bail of said Stehman ; the form of action not to be questioned, but the case to be tried on its merits.
    In 1843, Jacob G-amber died seised of real estate, and the same passed by inheritance to his children, of whom the plaintiff, Ann Stehman, then and now the wife of Tobias B. Stehman, was one.
    On March 2, 1844, all of them joined in an amicable partition of the land, and the plaintiff’s share was conveyed toTobias B. Stehman and Anna his wife, and to the heirs and assigns of the said Anna for ever,” in severalty, subject to the payment of $6000, and interest thereon, for owelty. This sum has since been paid; how the debt was finally paid was disputed.
    In 1840, Tobias B. Stehman became administrator of the estate of John Stehman, deceased. On April 26, 1850, he settled an account before the register of Lancaster county, which exhibited á balance in his hands of $1685.32, which, being increased to $1777.98, was, on Dec. 20,1850, confirmed by the Orphans’ Court, and on the next day, Dec. 21, a certificate thereof was filed in the Common Pleas. On April 3, 1851, a sci. fa. was issued upon it at the suit of Melchoir Breneman, and judgment obtained, June 17, 1851, for $1832.14. Kfi.fa. was issued on the judgment, Sept. 1, 1851, and the sheriff levied on half of the crops growing on the land before spoken of, the other half being the property of the cropper. Thereupon the wife gave notice that the land and the crops were hers, and not her husband’s, and to try this question this amicable action was instituted between the plaintiff and the sheriff.
    On December 28, 1850, Tobias B. Stehman conveyed all his interest in the land to Jacob Eehl, and on January 13,1851, Eehl conveyed it to the wife of said Tobias and her heirs, &c. This conveyance to Eehl was found by the jury to be fraudulent as to creditors.
    ' The substance of the instruction given by the Court below, Loire-, President, was, that the profits of the land belonged to the husband, and were subject to the levy, and that the defendant was entitled to a verdict, unless the conveyance to Eehl was good as against creditors. Nov. 24, 1852, verdict for the defendant. This part of the charge presented the principal question in the cause.

      Ford, for plaintiff in error.
    — It was said that the deed being to Stehman and wife and to the heirs of the wife for ever, they held by a joint title, and that the consequence was, that neither could dispose of a part without the consent of the other, and the whole must remain to the survivor: 4 Kent 358; Id. 353-361; 5 Term Rep. 652; 2 Kent 132; 16 Johns. Rep. 115; 8 W. & Ser. 107. It was contended that the estate being thus held jointly, the usufruct was joint property.

      Stevens, with whom was Fordney, contrá.
    — Under the deed, Tobias Stehman had a life estate in his own right, jointly with his wife. If lands be given to two separate persons and their heirs, they become joint tenants in fee-simple, and each, without the other, can dispose of an undivided moiety of the inheritance. But if the grantees are husband and wife, they take by entireties, and while the husband may do what he pleases with the rents and profits during the coverture, he cannot dispose of any part of the inheritance without his wife’s concurrence: 2 Law Lib. 78; Williams on Real Estate 166; 5 Term Rep. 652; 59 Law Lib. 53.
    The Act of 1848 is not applicable to this case. The husband does not claim under a marital right, but under the deed. The debt in this case existed before the passage of the Act of 1848.
    It was said that the conveyance to Eehl was made in fraud of creditors. It was made after the certificate of the balance on the account was filed as a lien.
   The opinion of the Court was delivered by

Lowrie, J.

— When land is held in common by a married woman and others, and they all join in a partition, and her share is conveyed to her and her husband, the law looks at the character of the transaction, rather than at the form of the conveyance, in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one. If the husband has paid money for equality of partition, and the conveyance be to the husband and wife, he acquires an interest in common with her in proportion to the amount.

It is not important here to consider the interest thus acquired by the husband; but we may assume that the land was the wife’s as of the date of her father’s death in 1843. As the law then stood, the husband was immediately seised of an estate for life in right of his wife, and entitled to all the issues and profits thereof as his own property. On the 28th December, 1850, the husband conveyed his interest in the land to Jacob Eehl, who, on the 13th January, 1851, conveyed it to the wife; but the conveyance to Eehl has been tried on correct principles, and found to be fraudulent as to this creditor. The result of course is, that he has a right to treat the land as the husband’s for life, and it is very difficult to prove so plain a corollary as his right to levy on the crops, which, as to him, ought to be and are the husband’s. The Act of 1848 has nothing to do with the case ; for it does not mean to take away any previously vested rights of the husband, or to allow him to give them away in fraud of his creditors. There is no error in the ease.

• Judgment affirmed.


text:
    Porter versus Mayfield.
    1. As a deed of conveyance is intended to define the relations between the parties to it, it is not contradicted when it is shown that the vendee purchased in trust for a third person; for such evidence only establishes a new and consistent relation.
    2. But evidence, that, at the time of the conveyance, the vendee agreed to hold the title in trust for the vendor, is a flat contradiction of the written instruments established by the parties as the bond and the evidence of their relation, and oral evidence of this character is inadmissible.
    3. Where a man conveys land to another by deed, and afterwards enters into an agreement with his vendee-by which he is to reside on, superintend, occupy, and farm the land for the vendee, and does so for several years, apparently under said agreement, he will not be allowed to defend his possession against his vendee by oral testimony that his conveyance was made in trust for himself.
    Error, to the Common Pleas of Lancaster county.
    An action of ejectment was brought by Geo. A. J. Mayfield v. Samuel S. Porter, to recover a tract of about 119 acres of land in Lancaster county, and at the trial both parties claimed under Col. James Porter, deceased.
    Col. Porter died in 1817, leaving a will, by which he directed the land in question to be sold, and bequeathed the proceeds thereof, with his residuary estate, to his three nephews, Dr. John, James, and Samuel S. Porter (the defendant below); and in the year 1821, James and Samuel S., and their wives, conveyed all their interests in the estate of their deceased uncle to their brother Dr. John Porter, by deeds absolute upon their face.
    Dr. John Porter having since died in the city of Philadelphia, proceedings in partition upon this tract were instituted in the Orphans’ Court of Lancaster county, which resulted in an appraisement and refusal by his heirs, and a sale and conveyance by a trustee appointed for the purpose, to Dr. George A. J. Mayfield, (the plaintiff below), for the price of $8 per acre, he having notice of the defendant’s claim.
    The plaintiff below also read in evidence an agreement between Dr. John Porter and Samuel S. Porter, dated May 31, 1825, by which the former employed the latter to occupy, farm, and manage the tract in question, for the annual salary of $100, to continue until the revocation of the agreement. The plaintiff claimed a verdict as owner of the property, and landlord of the defendant below.
    The defendant below did not dispute the execution of the conveyances to Dr. John Porter, or of the agreement between him and Samuel S. Porter, the defendant, but contended that they were made without pecuniary consideration, and in pursuance of a parol arrangement among the brothers to provide a home for the latter and secure it from the effects of his apprehended mismanagement and intemperance; and that with this understanding, the farm was used and treated by Samuel S. Porter as his own, with the knowledge and consent of Dr. John Porter, to wdiom no return or acknowledgment was ever actually made. Evidence of these facts was given, which was not referred to the jury, the Court having instructed the jury that the defendant could not dispute his landlord’s title, unless by showing that he had disclaimed it and held adversely to it for over twenty-one years. This was the principal matter complained of in this Court.

      Stevens and Hiester, for plaintiff in error.
    Ford, for. defendant in error.
    — That a tenant cannot dispute the title of his landlord, reference was made to 4 Bin. 473, Galloway v. Ogle; 6 Id. 47; Id. 62; 5 Watts 64, Boyer v. Smith; 6 Barr 154, Baskin v. Seechrist.
   The opinion of the Court was delivered by

Lowrie, J.

— Only one point here requires any special notice. It is insisted that, when the Court instructed the jury that the tenant could not dispute his landlord’s title, they improperly assumed the very point in dispute, the fact of tenancy. But it is not so ; the writings proved it. The principle is, that when the relation of landlord and tenant appears, that relation must be dissolved, and the possession restored before the tenant can set up another title.

The tenant insists that, when the oral testimony is regarded, that fact docs not appear; and yet the Court instructed the jury that it did. In the mind of the Court the writings were conclusive evidence of the fact; and the principle involved in the instruction is, that oral testimony cannot be allowed to contradict the terms of a written agreement; and thus the Court set aside all the oral testimony. This is right; and it not only cuts up the defence, but takes away all pretences of trust on such evidence.

There are cases wherein trusts may be proved by oral testimony; hut not in violation of the rule that protects written agreements against such testimony. As a deed of conveyance is intended to define the relations between the parties to it, it is not contradicted when it is shown that the vendee purchased in trust for a third person; for such evidence only establishes a new and consistent relation. But evidence that at the time of the conveyance, the vendee agreed to hold the title in trust for the vendor, is a flat contradiction of the written instruments executed by the parties as the bond and the evidence of their relation, and would make them void from their very inception. Oral testimony can have no such power. As between vendor and'vendee, such testimony cannot be heard to change a title, absolute on its face, into a trust.

Judgment affirmed.


author: Woodward, J.

text:
    Hulings versus Laird.
    1. By the 45th section of the Act of 13th June, 1836, relating to lunatics and habitual drunkards, every writ for the commencement of an action against a person found to he a lunatic, is to he served on the committee of the estate of the lunatic; or if there he no committee of the estate, then upon the committee of the person.

    2. Before the writ issues there should he a suggestion of record of the inquisition of lunacy and of the name of the committee. A writ against a lunatic without such suggestion is irregular, and the service of it void even though made on the committee.
    Error to the Common Pleas of Mifflin county.

    This was an action of debt by Laird v. Hulings, brought to April T., 1851. The summons was returned, “ defendant not found in my bailiwick.” An alias summons was issued to August Term, 1851, and it was served on Williams, trustee of Hulings, without specifying how he had become trustee. On the 7th August, 1851, judgment was entered under a rule of Court for want of an appearance. To such judgment error was assigned.

      Hale, for plaintiff.
    — That the proceeding was irregular was cited 2d section of Act of 13th June, 1836, relative to Lunatics, &c.; 2 Bin. 436; 3 Ser. & R. 245: 8 Id. 502; 12 Id. 416 ; 5 W. & Ser. 252.

      Bendict, for defendant.
    June 9, 1853,
   The opinion of the Court was delivered, by

Woodward, J.

— The 45th section of the Act of 13th June, 1836, relating to lunatics and habitual drunkards, authorizes every writ for the commencement of an action against a lunatic to be served on the committee of the estate of such person, if there be a committee of the estate, and if there be not, then on the committee of the person, but before the writ issues, there should be a suggestion of record of the inquisition of lunacy, and of the name of the committee. This is necessary, not only that the sheriff may know whom to serve, but that proper intendments may be made in favor of the record. A writ against a lunatic, without such suggestion, is irregular, and the service of it void, even though made on the committee.

There is nothing on the record before us from which it can be inferred that Mr. Hulings is a lunatic, and what does not appear of record does not exist in a Court of error. The case presented by the record is that of an alias summons issued against Hulings, and served on Williams. Calling the latter trustee in the sheriff’s return does not help the matter. If it appeared anywhere on the record that Hulings had been found a lunatic, and that Williams was his committee, there would be no difficulty in sustaining the service of the writ. Rut it is simply the ease of a writ against one man, and a service of it on another, and this authorized a judgment against neither.

The judgment is reversed.


author: Black, C. J.

text:
    Commonwealth for Irwin versus Contner.
    1. A lease of real and personal estate was dated on 27th June, 1848, whereby the lessor leased to the lessee the property “ for the terra of five years from the 1st day of April, 1848, continuing until the 1st day of April, 1853.” The lessee agreed to pay an annual rent of $2500 for the real estate, the said annual rent to be paid half-yearly in advance during the first five years aforesaid. It was Held, that under the terms of the lease itself the rent began to accrue from the 27th June, 1848, when the lease was made, and not from the 1st April, 1848.
    2. But where the personal property leased was levied upon on the 14th June, 1849, under an execution against the tenant, and was sold by the sheriff; It was Held that it was competent for the sheriff in a suit against him by the first execution-creditor, to show by parol testimony that the tenant had taken possession of the premises on the 1st day of April, 1848, and that rent was payable from that day, and. that the receipt on the lease was for the first half-year’s rent commencing on 1st April, 1848.
    3. In such a suit, the lessor having received out of the proceeds of sale all the rent he claimed, and not having indemnified the sheriff and not being interested in the event of the suit, was a competent witness on the part of the sheriff and his sureties to prove the time when the lease actually began, that the rent was to commence from the 1st of April, 1848, and that such was the intention of the parties when the lease was written.
    4. The execution-creditor, in a suit against the sheriff, is not concluded by the price at which the personal property levied on was actually sold; nor can he claim the amount at which he would have been willing to take it. What the property would have brought at a fair sale conducted under the direction of the plaintiff in the execution, without puffing, at bond fide bids, would be the extent of his claim.
    5. An action by the execution-creditor on the recognisance of the sheriff, can be sustained only when the plaintiff has been actually aggrieved. He is not otherwise entitled to a verdict for nominal damages.
    6. In such a suit whatever amount the landlord could have legally claimed out of the proceeds of sale, if the sale had been under the plaintiff’s execution, the latter cannot recover; and if the sheriff, out of the proceeds of sale under another writ, has paid to the landlord one whole year's rent, the first half-yearly payment being paid in advance according to the proof as to the terms of the leas , the said second half-year's payment is not to be disallowed to the sheriff, because after the landlord had received the rent from the sheriff he took possession of the demised premises. The sheriff is bound to observe only such relations as existed at the time of his payment.
    7. An erroneous decision of the right to a conclusion to the jury is not a cause of reversal.
    Error to the Common Pleas of Mifflin county.

    This was an action of debt, to August Term, 1850, in the name of The Commonwealth of Pennsylvania, for Ellis Irwin v. Davis McKean Contner, sheriff of Mifflin county, and his sureties, on his official recognisance. The breaches of the recognisance assigned in the declaration, were, 1. The neglect to sell the personal property of F. A. Whitaker, under a test. fi. fa. from the District Court, Philadelphia, issued at the suit of Irwin. 2. In withdrawing from the possession of the property levied on under Irwin’s writ, and improperly returning that he had done so,' according to the direction of the said District Court, made on 7th July, 1849. 3. The
    neglect to execute Irwin’s writ of. vend. exp.

    The plea was, covenants performed, and payment with leave, &c. — Nov. 13, 1852. Verdict for defendants.

    The case was up before. See 6 Karris 439, &c., for a report of it.
    Under the testatum writ of -fi. fa. at the suit of Irwin, the sheriff made a levy on the property of Whitaker, the defendant in the execution. John F. Cottrell gave notice to the sheriff that the greater part of the property levied on belonged to him, and had been leased to Whitaker with the furnace property. Contner applied to the District Court for a rule upon Cottrell, under the Interpleader Act. The Court made an order on Cottrell. The sheriff returned to the fi. fa. of Irwin that he had withdrawn from the possession of the property, according to the direction of the District Court, Philadelphia, made on 7th July, 1849. The return was dated July 14, 1849. On the part of the plaintiff it was alleged that the District Court had not made such an order — that the order of withdrawal, made by the said Court, was dependent on Cottrell’s filing a declaration in the feigned issue ordered to try the right to the property levied on, and his giving bond; which order, it was alleged, was not complied with by Cottrell.
    On 4th August, 1849, the District Court granted a rule on Cottrell to show cause why he should not be barred of any action against the sheriff, or his officers, and why the sheriff should not be directed to sell. This rule was made absolute on 3d September, 1849. On 4th August, Irwin issued a writ of vend, exp., to which the sheriff returned that, by virtue of a fi. fa. to August Term, 1849, at the suit of Washington Righter v. Whitaker, for a debt of $632.25, he had levied upon Whitaker’s interest in the same property, and that he had sold the same for $2100, on the 28th July, 1849. _
    _ On the part of Irwin, it was alleged that, understanding that the sheriff designed to sell Whitaker’s property on the 28th July, and supposing it to be under his own writ, he made arrangement to have it bid up to an amount sufficient to cover the arrears of rent due by Whitaker to Cottrell, his landlord; that the agent arrived at Lewistown on 27th July, and there first learned that Irwin’s writ had been returned by the sheriff, and finding that the sale was to be on another execution, left the place.
    On the trial of the case, on the part of the plaintiff, was given in evidence the record of the ease of Irwin, and also that of Righter; and the deposition of Irwin’s agent, and of Hodgson, a person employed by the agent to attend the sale.
    The sheriff, it was said, did not justify his return, but gave evidence in mitigation of damages. One part of the evidence was a lease of the Matilda iron works, with a large amount of personal property, by Cottrell to Whitaker.
    The agreement or lease between Cottrell and Whitaker was stated in it to have been made on the 27th June, 1848, and that Cottrell doth let and lease to Whitaker the Matilda Furnace property and farm connected with it; also the personal property consisting of store, teams, &c., as per inventory and valuation commenced on the 23d May, 1848, and finished on the 27th June, 1848; also, wood-leave for house, &c.; also, ore privileges, and wood-leave to the amount of two thousand cords annually, — “provided it is coaled and used in said Furnace, for the term of five years, from the first day of April, A. D. 1848, continuing until the first day of April, A. D. 1853.” In consideration of which Whitaker agreed to pay an annual rent of $3500, the said annual rent to be paid half-yearly in advance during the first five years aforesaid; and it was also understood and agreed that if at any time prior to the expiration of said lease, Whitaker should purchase and pay Cottrell for the personal property then on hand, then and after that .time the rent to be abated to $2500, for the real estate, ore-leave and wood-leave for the furnace, the rent to be paid half-yearly in advance, &c., &c. Signed by Whitaker and Cottrell.
    On it was a receipt by Cottrell for $1750 on account of rent— dated June 27, 1848.
    This Court decided (6 Harris 447) that by its terms, the rent reserved for the real estate was $2500 per annum; that not more than $1250 was due on 14th June, 1849, when the levy was made under Irwin’s writ; that the rent commenced on the day of the date of the lease, viz., the 27th June, and that the date of April 1,1848, in the body of the lease was intended to limit the duration of the term — to fix the end of the term, and not the beginning of it.
    On part of the defendant the lease having been given in evidence, John F. Cottrell, the lessor, was called, and it was offered to prove by him that Whitaker took possession under the lease on the 1st of April, as his tenant; that the rent was payable from the 1st of April, 1848, and that the receipt of the witness on the lease was for the first half-year’s rent due, commencing from the 1st of April, 1848. The evidence was objected to, but was admitted. Both the competency of the witness and the admission of the evidence were exaepted to on the part of the plaintiff, and assigned for error.
    The defendants also gave in evidence, under exception, the deposition of F. A. Whitaker, to prove that he took possession on the 1st of April, 1848, and that 'the rent was payable from that time. The admission of that evidence was assigned for error.
    On the part of the plaintiff it was alleged that the rent of the premises was to be paid, according to the terms of the lease, half-yearly in advance. That the first half year’s rent had been paid. The sale under the Righter writ took place July 28, 1849, and immediately after that sale Cottrell went into full possession of the premises, and carried on the works. Upon this staté of facts, alleged to have been proven, the plaintiff’s counsel submitted the twelfth point, viz. — “ That Cottrell having entered into possession of the furnace property, immediately after the sheriff’s sale in July, 1849, he was not entitled to the third half-yearly payment of rent.” The judge negatived this point, and the answer was assigned for error. If this point were sustained, it became immaterial whether the payment of the rent fell due on the 1st of April or the 27th of June, so far as the third half-year’s rent is concerned.
    The remaining errors assigned, were to the charge of the Court and the answers to points submitted on part of the plaintiff.
    The first four errors were as follows:—
    1. The admission of John F. Cottrell as a witness for the defendants. 2 and 3. As to the testimony of Cottrell as to the construction of the lease. 4. The admission of the deposition of F. A. Whitaker, “to prove that he took possession on the 1st of April, 1848, and that the rent was payable from that time.”
    5. As to the charge of Wilson, J., That “the lease under which Whitaker held the property, was at the rate of $3500 a year, for five years from the 1st of April, 1848, to the 1st of April, 1853.” 6. That “if Whitaker and Cottrell are believed, the third payment of-rent was due on the 1st of April, 1849, and due in all one year’s rent, of $2500, at the time Irwin’s writ was levied.”

      7. As to the plaintiff’s points: The judge did not instruct the jury as requested in plaintiff’s seventh point, “that if the plaintiff would have bid the property of Whitaker up to an amount sufficient to cover his judgment, and the prior lien of the landlord for rent, if the sheriff had made the sale under his (Irwin’s) writ, then the plaintiff is entitled to recover in this action, the whole amount of his judgment against Whitaker, with interest to the present time.”
    8. The refusal of the judge to answer the plaintiff’s eighth point as requested. The eighth point was, that in fixing the date from, which the rent was demandable by Cottrell out of the fund raised by the sale, the jury must be governed by the written lease, irrespective of the parol testimony.
    9. Error was also assigned to the eleventh point, which point was as follows: That one half-yearly payment only could be due at the date of the levy, under Irwin’s writ (June 14, 1849), for which Cottrell would not have been entitled to more than $1250.
    Answer. For a half-year’s rent, Cottrell would only be entitled to $1250; but we refuse to say to you, as requested, that one half-yearly payment only was due at the date of the levy, under Irwin’s writ, 14th June, 1849.
    10. Error was further assigned to the answer to the 13th point, which point was as follows: “ Cottrell having entered into the possession of the furnace property immediately after the sheriff’s sale, in July, 1849, he was not entitled to the third half-yearly payment of rent.”
    Answer. We do not think that the rule of law relied on to support this position, is applicable to a case situated as this case is, where there was a legal sale by the sheriff of the personal property of the tenant on the premises leased, and where the purchaser went into possession without objection, and, as the testimony would seem to indicate, with the consent of the tenant; and the rent was due before the levy and sale. The cases referred to are when the rent was accruing, and not due until the landlord had gotten into possession. The rent being due and payable previous to the levy and sale, the landlord would have the right to claim payment out of the proceeds of the property sold. The time of payment of the rent having passed, the landlord’s right of distress had accrued, and being of this opinion, we refuse to answer this point as requested.
    The 11th assignment was to the refusal to answer the 14th point as requested: which was, “ That there must be a verdict for the plaintiff.” The answer was, We refuse to answer this point as requested, and refer to the syllabus of the case of the Commonwealth v. McCoy, 8 Watts 153.

      The 12th assignment was, That the defendant’s counsel were permitted to begin and conclude the argument to the jury.
    Price, for the plaintiff in error.

      Parker and J. T. Sale, for defendant.
    June 21, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

— Irwin, upon whose suggestion this suit was brought, had an execution in the hands of the defendant, who was sheriff, against one Whitaker, and levied upon personal property, which he afterwards unlawfully gave up. When the cause was before us last year (6 Sarris 439), we decided that the plaintiff might recover as much as the sheriff could have made for him by a proper discharge of his duty. Whitaker owed his landlord rent, which should be deducted from the value of the property, in order to ascertain how much of the proceeds of the goods, in case they had been sold, would have been applied to the plaintiff’s debt.

The lease on which the rent was reserved was dated on the 27th of June, 1848. The rent was $2500, payable half-yearly in advance. The rent for the first six months was paid on the day when the lease was executed, and when the term commenced. Another half-yearly payment became due on the 27th of December, 1849, and was not paid. The levy was made before the day fixed for the next payment.

That a lease can relate back, by construction, to a time anterior to its date, without words clearly indicating that to be the intention of the parties, is a proposition which no man, however ingenious, can sustain for a moment. That an estate for years does not begin until it is created, is a mere truism. It is impossible to affirm seriously that a landlord can claim rent, or the tenant be entitled to enjoy the property, before the relation of landlord and tenant existed. A similar relation may, indeed, have existed before under another contract; and if it did not, the parties may agree that the rent for the future shall be counted as if it had. It is true too that where one takes possession under a parol agreement, it may be put into writing during the term, and if it recites the facts truly, and explains its purpose intelligibly, it will have the effect intended. But we find none of these things in the lease before us. It speaks in the present tense — doth let and lease. The covenants are all to be performed in the future. It contains no allusion to any interest then existing in the lessee, or to any previous possession of the lands by him. It leases the property on the 27th of June, and from that day for a term of five years, counting from the 1st of April, 1848, or until- the 1st of April, 1853. It seems to have been thought that the reference to the 1st of April, as the point from which the five years should be counted, made the rent payable also from that time. But it is not so. Suppose a man in 1850 had made a lease of lands for a term which shall expire at the end of fifty-five years from the commencement of the present century, would that entitle him to recover rent for fifty years before the lease was made ? We are much more likely to fix a future point of time by its distance from some past period, than by the interval which separates it from the present. Ño systematic calculation of time can be made otherwise. All calendars have their eras. A term would probably be made to end on the 1st of April, let it .begin when it might, because custom in this state has made that day the beginning of the year in all matters of private economy.

On the whole, then, we have no doubt that the written lease gave the lessor a right to rent only from its date, and being paid six months in advance, he had no claim to more until the 27th of December following. On the 14th of June (1849), when the levy was made, the landlord could only have recovered from the tenant $1250, and of course could have distrained for nothing more, if Whitaker had stood upon the advantage which the lease gave him. In no contest between the parties themselves could parol evidence have been given to vary the terms of the lease or make the rent begin before its date, unless as a means of affording equitable relief against fraud, mistake, or accident.

But this is not a contest between the parties themselves, and the rule which excludes parol evidence does not apply to strangers. It cannot be said that the sheriff claims under the landlord. There is no legal privity between them. The sheriff is interested in establishing the right of the landlord to the rent, because upon that depends the justice of his own defence • against one who asserts that he has paid it wrongfully. He claims to have one whole year’s rent deducted from the value of the goods he levied on, because he says he would have been bound to pay it, as he did afterwards pay it when he sold the same goods on another writ; and he declares that he paid it because it was due, and was by both the parties in good faith admitted to be due.

It is very clear that the tenant had the advantage of his landlord, and could have cheated him very easily if he had stood for law and refused to render whatever was “not nominated in the bond.” But it is also true that in good conscience, and in common honesty, he owed twice as much as the lease would have compelled him to pay. If the landlord had brought suit against him or taken a distress, we cannot presume that he would have resisted any part of the claim because honestly he could not have done so.

The Act of Assembly gave the landlord a Hen for the rent that was due. How much was due? What shall be the standard'to ascertain the amount ? Shall we measure it by the lease which is proved to be a blunder, or. by the justice which arises out of all the facts in the case ? Shall the sheriff have the advantage of considering the tenant a man of truth, or shall we give the execution-creditor the benefit of the knavery which he might have perpetrated but did not? We are of opinion that the amount of rent due is the sum which the tenant owes in good conscience, and which he is willing to pay; that this may be ascertained without regard to the lease, if the lease be erroneons; and that the rule is the same, even when the error in the lease is of such a kind that the landlord could not be relieved by any proceeding against the tenant in a Court of Equity. We must see the statute so executed that it will do neither more nor less than what the parties (presuming them to be honest), would have done for themselves.

If the letting had been entirely by parol, it is undeniable that the landlord would have been as well entitled to his rent as he could have been with a lease put in writing, and sealed by both parties. If the lease had been in writing, and afterwards changed by a parol agreement, the paper would not have been the exclusive standard to determine what was due. ' Here there was an agreement which it was intended to put in writing; but by a mistake, words were used which expressed a different contract. The parties correct, by their conduct, the blunders of their words; the one pays, and the other receives, according to the actual intention; and neither seeks to have any unfair benefit from the accidental error. We think it is not our duty to say, that the execution-creditor must have an advantage over the landlord against justice and truth merely because the tenant could have had a similar advantage if he had been disposed to take it.

Cottrell, the landlord, was a competent witness. He had received his money under a judicial decree, and could never be required to pay it back again, no matter what might be the result of this suit against the sheriff. It does not appear that he came under any obligation to refund.

The exception to that part of the charge which gives the rule for fixing the price of the goods is not sustained. The plaintiff is not concluded by the price at which they were actually sold; nor can he claim the sum at which he would have been willing to take them. It was no injury to him that he was prevented from buying them for more than they were worth. His loss was no greater than their value. What they would have brought at a fair sale, conducted under the direction of the plaintiff, without puffing, at bond fide bids, was the sole question.

The Court refused to direct a verdict in favor of the for nominal damages. We think the ease of the Commonwealth v. McCoy (8 Watts 153), rules this point. The plaintiff can only maintain his action if he has been actually aggrieved.

We do not see that any wrong was done by giving to the defendant the conclusion of the argument. But, at any rate, an erroneous decision of such a question would not be cause of reversal.

There is one other point of some importance in this cause. After the landlord had received his rent from the sheriff in advance, he took possession of the demised premises. If he had done this be-1 fore he received the rent he could not have recovered it after-wards ; and it is contended here, that the sheriff cannot have the rent which was thus forfeited, deducted from the plaintiff’s claim. In the opinion given last year, we stated it to be a fair presumption that the landlord’s lien would have been prosecuted to the extent of his legal rights if the sale had been made under the plaintiff’s writ. Whatever, therefore, the landlord could have legally claimed, the plaintiff cannot recover in the present suit. What was the landlord’s right, therefore, at the time this money might have been made by the sheriff? The right to be paid what rent is due (but not for more than a year) out of the proceeds of a sale on execution, comes in place of a distress. Had the landlord a right to distrain for the third half-year’s rent ? The affirmative reply which must be given to this question, settles the point in favor of the defendant in error. The rent being due, and the right of distress being perfect, the sheriff could not have withheld it. The consequences of a subsequent change in the relations of the landlord and tenant can only affect themselves, and not the sheriff, who could regard or knqw none other than those which existed at the time.

Judgment affirmed.


text:
    Wertz versus May.
    1. The rejection of papers afterwards admitted is not the subject of an assignment of error.
    2. A deposition taken in a former ejectment between the same parties for the same land may be read in evidence; and the termination of the former case by nonsuit instead of a trial did not affect the right to read it in evidence on the second trial.
    3. A deposition is not objectionable because reduced to writing by the defendant’s counsel, if done in the presence of the adverse party and his counsel and by their consent and agreement.
    4. It is competent for a party to show that a witness called to testify against him has related the facts, to which he has testified, differently on a former occasion whether under oath or not, the witness having been first inquired of as to his former testimony.
    5. Evidence in support of the general good character of a witness is not competent until his general character has been assailed.

      6. When the party has submitted no points or asked for any instruction, he has no right to complain that the Court had not fully instructed the jury.
    Error to the Common Pleas of Bedford county.

    This was an ejectment to April Term, 1844, by Peter Wertz v. Daniel May, for about 124 acres of land. Plea, not guilty. April 27, 1846, verdict for defendant. May 2, 1846, judgment on the verdict. Writ of error to May Term, 1853.
    On the trial, the plaintiff gave in evidence an application by him, dated 13th September, 1833, for 200 acres. Then a warrant to said Wertz for 200 acres, dated 17th September, 1833, and survey thereon for 198 acres, dated 1st October, 1833.
    May, the defendant, claimed the land in dispute by virtue of an improvement made by him in 1821, and possession under that improvement.
    Plaintiff replied to this, that defendant’s improvement was not upon vacant land, but upon a survey in the name of John Taylor, dated 29th July, 1768; that defendant was there as agent of or tenant under the owners of that survey, and that at the time Wertz made his survey, and at other times, defendant limited his boundary by a line of that survey not including the land in dispute.
    The charge of Black, J., then President of the Common Pleas, as brought up, was, inter alia, as follows:—
    “ This is an ejectment for 124 acres of land, in Harrison township, for which the plaintiff shows that he made application on the 13th of September, 1833. A warrant was issued on the 17th of September, 1833, for 200 acres, and a survey was made of ,198 acres, including the land in dispute, on the 1st of September, 1833. This makes out, yrimd facie, a clear title in favor of the plaintiff. Let us consider whether the defendant has a better one.
    “ It is proved, by the oath of Ilezekiah Miller and John Miller, that May, the defendant, went on the land in the year 1821, and has lived there ever since with his family, making improvements, and raising grain. These witnesses being unimpeaehed and uneontradicted, it is right to presume that you will consider the facts stated by them as established. May, then, has a title by improvement to 400 acres, to be laid out around his residence, in a reasonable shape. This title is twelve years older than that which Wertz got under his warrant of 1833.
    “ The plaintiff denies the defendant’s right, under that improvement, to the land in question; and asserts, 1. That May did not live on vacant land. 2. That he limited his right by saying that he only claimed up to a certain line, which does not take in the land in dispute.
    “ As to the first allegation, it is said that May built his house on what had been called the Taylor tract. Mr. Reed says that he surveyed that tract, and May’s house is not on it. Mr. Gettys says he run the lines, and the house is within them. Mr. Stewart says, that when the line is run to the left, beginning at a certain cornei’, the house is thrown out, but when run from the same corner to the right, it is inside of the survey. It was hardly possible for three witnesses to give testimony more evenly balanced than this. The two first contradict each other, and the last one agrees with them both.
    “Not being able to anticipate what your opinion will be on the question, whether the defendant’s house is or is not on the Taylor tract, it becomes our duty to examine the evidence, and ascertain what ought to be the verdict, if it be within that tract.
    “A location (No. 5119) was entered on the 29th July, 1768. No survey was returned until 1829, a period of fifty-one years from the date of the location, and eight years after May’s improvement was commenced. It is not necessary for us to say anything about the irregularity of the survey given in evidence, because, if it were regular, it would not avail the owner against May’s improvement. There being no survey returned in 1821, May had as good a right to consider it vacant land as if there never had been a location for it.
    “ But it is argued for the plaintiff that because the defendant in' 1833 took a deed from Riley’s executors for the land (a part of it), called the Taylor tract, he is estopped from asserting that it was vacant. It is urged that the deed is conclusive evidence against him to show that the title was out of the Commonwealth. We cannot instruct you that this is law. If May, in 1833, was living on vacant land, and claiming it by improvement, and Reily’s executors set up a pretended title to part of his claim, and he bought out that pretended title, and took a deed for it, he is not estopped in this action from proving the truth as regards his improvement. He may still defend against Wertz on the best title which in law or equity he can make out.
    “ Another question remains to be settled. Did the defendant limit his claim under the improvement so as not to include within it the land in dispute ?
    “Peter Wertz, jun., says that he (defendant) told the plaintiff and others, when they were running one of the lines of the plaintiff’s survey, that he claimed merely up to that line. Mardath’s deposition corroborates this in part. He says that May told him he did not claim the land, but does not say that he mentioned that line, or any line, as the boundary of his claim.
    “ Peter Wertz, jun., was examined as a witness about this same matter on a former occasion.” The Court referred his testimony, on the two occasions, to the consideration of the jury.

      “ The verdict is not to rest alone on the conversation spoken of by Peter Wertz, jun., and Mardath. If May, at any other time, or in any way, limited his claim under the improvement so as not to include this land, Wertz had a right to take out a warrant for it and survey it, and ought to recover it here.
    “ So, if May lived on the Taylor tract under Reily, and not as improver for himself and if Reily’s claim was only for the land within the Taylor survey, the plaintiff ought to recover.”
    The following was specified as error:—
    1. The Court erred in rejecting the evidence offered by plaintiff, as contained in the second bill of exceptions, as follows, to wit: “ Plaintiff offers a draft of 301 acres to John Taylor, made by James O’Conner, returned February 5, 1829, and to follow this with proof that Daniel May said that a certain line of this survey when it was made in 1827, was the boundary of his claim.”
    2. In rejecting the evidence offered by plaintiff, as contained in the third bill of exceptions, as follows, to wit: “ Two papers — office papers, without date, offered with the O’Conner draft, to be followed by evidence of the payment of taxes by Gratz & Reily from 1800 up to 1830, and that May admitted that he was the agent or tenant of Reily."

    3. In admitting the deposition of John Mardath, mentioned in plaintiff’s fourth bill of exceptions. This deposition is admitted to be in the handwriting of the attorney for defendant.
    5. In admitting the evidence contained in plaintiff’s fifth bill of exceptions, going to prove that Peter Wertz, jun., a witness of plaintiff\ had given a different version of this evidence on a former occasion. Defendant having asked the witness what he had said on the former occasion alluded to, and the witness having answered correctly, defendant was bound by that answer.
    6. In admitting the evidence contained in the sixth bill of exceptions, to wit: “ That plaintiff said he had bought about 72 or 75 acres of land from Dr. Anderson, and found out then that there was some vacant land, &e.” There being no proof that the “vacant land” alluded to was part of the land in dispute, the evidence was only calculated to mislead the jury.
    7. In rejecting the evidence offered by plaintiff, as mentioned in the seventh bill of exceptions. Plaintiff offered to prove the characters of Peter Wertz, jun., and John Mardath. Defendant had assailed these witnesses by trying to prove contradictory statements. Under this state of circumstances, plaintiff had a right to prove that they were men of integrity and veracity: 2 Starkie’s R. 241; Greenleaf on Evidence, vol. 1, p. 521 ;3F. | Ser. 127.
    8. In charging the jury, not so much in the language used as in omitting much which should have been used; in explaining the evidence of some of the witnesses, and failing to notice that of others ; and in failing to explain to the jury the law of estoppel, as applicable to the circumstances of this case.
    Cessna, for plaintiff in error.
    — The draft offered and rejected, showed the boundary of the defendant’s claim. It was proposed to show in addition, that May, the defendant, said that a certain line on that draft was the limit of his claim. It was said that the error was not cured by the withdrawal of the objection after bill of exceptions sealed, as the plaintiff was put to inconvenience in proceeding with his case, and perhaps prejudiced by the rejection of the evidence offered.
    As to the 3d exception, as to the deposition of Mardath, (which it appeared had been taken in a former suit between the same parties as to the same land, viz.: in an ejectment of May v. Wertz and another, to April, 1841), it was said by plaintiff’s counsel that this deposition was written by the defendant’s counsel, and was not certified by the justice before whom it purports to have been taken. It was said that the defect first stated was not cured by the fact that the plaintiff’s attorney at that time consented that the defendant’s counsel should write the deposition. The consent was not in writing; but it was said that if it had been, it would not avail.
    As to the 6th assignment, it was said that the evidence was not applicable to the matter in controversy. As to the 7th, the right to give such evidence was alleged. See the assignment.
    As to the 8th assignment: Though the Court had the right to express an opinion on the facts of the case, yet it was but fair that the whole of the evidence should be mentioned, and submitted to the jury in its proper aspect. That the Court omitted referring to the testimony of important witnesses for the plaintiff, and to instruct the jury as to the law of estoppel.

      Lyon and Russel, for defendant.
    — To the 1st and 2d assignments, it was replied that it was sufficient that the objection to the papers was withdrawn, and that they were read: 11 Ser. & R. 362; 1 Pa. Rep. 182.
    To the 3d: The deposition having been taken in a suit between the same parties and for the same matter, it comes within the words and spirit of the Act of 28th March, 1814: Dunlop 248; Hobart v. McCoy, 3 Barr 419. It was shown that Mr. Barclay wrote the deposition by agreement of Peter Wertz and his counsel. Hence under the case of Farmers’ and Mechanics’ Bank v. Woods, 1 Jones 99, it was rightly admitted.
    As to the 4th and 5th specifications: It is competent for the party calling a witness, to prove that the witness was mistaken in any part of his testimony, by calling other witnesses to rectify the mistake, or to prove that on other occasions he had related the story in a different manner: De Lisle v. Priestman, 1 Brown’s Reports 174-183; Cowden v. Reynolds, 12 Ser. & R. 281; Bank of Northern Liberties v. Davis, 6 W. & Ser. 289; Harden v. Hays, 9 Barr 151. The admission of contradictory statements of the same witness (2 Barr 32, McAteer v. McMullen), is in the discretion of the Court; 3 Barr 221, Kay v. Fredrigal.
    As to the 7th exception, the ease of Braddee v. Brownfield, 9 Watts 124, was cited to the point that a party cannot give evi- ‘ dence confirmatory of the general good character of a witness, unless his general character has been assailed.
    June 21,
   The opinion of the Court was delivered, by

Woodward, J.

— There are eight specifications of error on this record, and they shall be despatched in order.

1 and 2. The draft and office papers mentioned in these, though rejected by the Court, were afterwards admitted by consent of counsel, and the plaintiff, having thus had the benefit of them before the jury, has nothing to complain of here.

3. The deposition of John Mardath had been taken in a previous cause between the same parties, about the same subject-matter. This entitled the defendant to give it in evidence, and the termination of the previous cause by a nonsuit, instead of a trial, did not affect his right. Nor did the fact that it was reduced to writing by the defendant’s counsel, since it was so done in the presence of the plaintiff and his counsel, and by their consent and agreement.

4. There is nothing on the record to which this assignment of error can be applied.

5. It is always competent for a party to show that a witness, ealled to testify against him, has related the facts to which he testifies differently on former occasions, whether under oath or not: Bull v. Towson, 4 W. & Ser. 557. As to the objection that the witness was asked by the defendant what he swore to on the former trial, and therefore that the defendant could not contradict him, it is enough to say that it reverses the rule of evidence exactly. Without such a cross-examination, as to his previous testimony, the rule is that the contradictory evidence is inadmissible: McAteer v. McMullen, 2 Barr 32.

6. No reason has been assigned in support of the sixth specification, and none can be imagined.

7. Evidence in support of the general character of witnesses, is not competent until their general character has been assailed. Every witness puts his character in issue; but until evidence tending directly to impeach it is produced, the law presumes it to be good, and therefore testimony to prove it good is superfluous.

8. The eighth assignment has respect to the charge, but is destitute of all merit. If the Court did not discuss every possible aspect of the cause, the plaintiff has no reason to complain, since he submitted no points and prayed for no instructions.

Singly or together there is no substance in the errors assigned, and the judgment is, accordingly, affirmed.


author: Knox, J.

text:
    Hoch’s Appeal.
    An executor cannot, on objection being made by a legatee, retain for a debt due to himself -which was barred by the statute in the lifetime of the testator.
    Appeal from the decree of the Orphans’ Court of Berks county.

    This was an appeal from the decree of the Orphans’ Court of said county, in the matter of the auditor’s report on the account of Daniel W. Kistler, one of the executors of the will of George Adam Hower, deceased. The appeal was taken by Jacob Hock, one of the legatees under the will.
    The will of the testator is dated the 26th day of July, 1849. The testator died in the early part of August, 1849.
    Daniel W. Kistler was one of the executors of said will, and as such settled his account. In his account he claimed a credit for $507.50, paid by him on the 25th of August, 1849, to Adam German. The debt was contracted as follows:
    In the spring of 1841, Daniel W. Kistler borrowed $500 from the said Adam German, for which he gave his own bond. This sum of $507.50 was paid by Daniel W. Kistler to the said Adam German, after the death of the testator, in discharge of said bond. On the part of the accountant it was alleged that he borrowed this money from German for Hower, the testator, and that he gave him the money in the spring of 1841, on the same day he got it from German; and that having paid the bond to German since Hower’s death, he had a right to charge Hower’s estate with the amount so paid, and to take credit for it in his account.
    On the part of the appellant was denied the existence of any liability on the part of Hower for this money, and it was contended that the accountant was not entitled to credit in his account for the same. It was alleged that the money was borrowed by Kistler alone, and for which he gave his own bond. That he had not shown any obligation on the part of Hower to Kistler or German, for this money; nor any acknowledgment of this debt on the part of Hower or promise to pay it. That so far from Hower owing this debt to Kistler, Kistler was indebted to Hower by four different obligations, given by Kistler to Hower at different times shortly before Hower’s death, and which notes remained due and unpaid at the time of his death. It was contended that Hower never was bound for this money, and that if he was, it had been long since paid; that the statute of limitations was a complete bar to any claim against Hower or his estate by Kistler.
    In the account credit was asked for cash paid Adam Herman, $507.50. The account was referred to an auditor, who allowed the credit. Exception was filed to that part of the report, but it was dismissed, and in this Court the allowance of the credit was excepted to.

      Banks, for appellant.
    — Heirs may take defence to a suit against the executor, and have a right to appeal: 13 Ser. & R. 14, Fritz v. Evans. An executor or administrator cannot, by his acknowledgment, take a case out of the operation of the statute of limitations, and notwithstanding such acknowledgment, the statute may be pleaded: 2 Jones 66, Steele v. Steele. The lien of debts of an intestate upon his real estate, is subject to the statute of limitations, as well when the debt is due to the administrator, or is owned by him, as if due to or owned by another: 5 W. & Ser. 397, McCurdy’s Appeal. A legatee, or other person interested in an estate, may interfere and take advantage of the statute of limitations against a debt claimed from the estate, although the executor should refuse to plead the statute: 2 Williams on Executors 1282. It was contended that a legatee or heir may plead the statute in defence of a claim made by the executor against the estate. The executor cannot take for himself at pleasure. He must prove his debt. He must prove it as any other claimant would be held to prove his debt. If this be so, the decree of the Court in this case was erroneous.

      Strong, contra.
    — It was said that the appellee alleges the facts respecting the claim in question to be: That on 1st April, 1841, Hower, the testator, wanting $500, applied to the accountant, who was his clerk, to borrow it for him; that Kistler borrowed the amount from Herman, and gave his own bond, and handed the money to Hower, who directed Kistler to pay the debt to Herman, out of the store. It was said that the relation of Hower and Kistler to each other was such (Kistler being his clerk, and made a trustee to pay Herman) that the statute did not operate: 2 Balias 264. As between Herman and Hower, the administrator was not bound to interpose the statute. It was said that an executor or administrator is not bound to plead the statute, though it was admitted that a legatee, or heir, may interpose and plead it before the debt is paid.

      June 21, 1853,
   The opinion of the Court was delivered, by

Knox, J.

— Kistler, executor of Hower, filed his account in the Orphans’ Court of Berks county, in which he claimed a credit for $507.50, paid by him on the 25th Aug. 1849, to German.

The account was referred to an auditor, who allowed the credit, and the Court below overruled an exception to such allowance, from which decision Hoeh, one of the legatees under the will appeals to this Court.

The evidence taken before the auditor, and reported by him, clearly establishes the fact that the money was loaned by German to Kistler, and by Kistler to Hower. There was no privity of contract between Hower and German. The relation of debtor and creditor did not exist between them, consequently the payment to German in August, 1849, was on account of Kistler’s own debt, whose claim against the estate of Hower must stand upon the loan made in the spring of 1841.

The question, then, presented is this: Can an executor retain for a debt due to himself, which was barred by the statute in the lifetime of his testator ?

The right of a legatee, or other person interested in an estate, to interpose the bar of the statute of limitations against a debt claimed from the estate, although the executor should refuse to plead the statute, is admitted. Why should not the legatee be permitted to defend, upon like grounds, against a claim made by the executor ?

It is clear, that in an action at law Kistler could not recover, and a Court of equity will not pass a claim bad at law. The statute is alike effectual in the one tribunal as the other.

Was the claimant a stranger, the executor’s recognition of the debt would not bind the estate, or prevent him from setting up the statutory defence; much less can he, by his act, restore a debt lost by the lapse of time in his own favor.

Much incongruity of decision would have been avoided if our Courts had constantly acted upon the plain principle that the statute destroys the original debt, leaving only a usual consideration upon which to found a new promise, and which in all cases should be the basis of the action.

The decree of the Orphans’ Court is reversed, and it is ordered that the auditor’s report be reformed, by striking therefrom the credit of five hundred and seven dollars and fifty cents, being the first item in said account as reported. As to the residue, the report is confirmed.


author: Lewis, J.

text:
    High’s Appeal.
    1. Advancement is an irrevocable gift by a parent in bis lifetime to bis child on account of such child’s share in his parent’s estate.
    2. But where a father on advancing money to his son takes a bond for its repayment, with or without interest, it is to be presumed to be a debt and not an advancement.
    3. The father took a bond from his son for money advanced, and advanced to another son money to purchase farming utensils, which last, by an entry in his book, he directed should remain charged until after his decease, then to be deducted from the child’s share of his estate; Hdd, that the presumption that the money for which the bond was given, was intended as a debt, acquired additional strength from this circumstance.
    4. A brief statement made by the father of the nature and amount of his estate including debts and advancement, made on a small loose piece of paper found among his papers after his death, does not amount to a release of his bonds against his children or convert them into advancements, even though the memorandum bears indication of an intention at the time to release them.
    This was an appeal by Ezra High, administrator of tbe estate of William Higb, deceased, from tbe decree of the Orphans’ Court of Berks county, upon his administration account.
    William High died intestate in the spring of 1851, leaving a widow and three sons, and one daughter living, and the children of one deceased son, and also the children of two deceased daughters.
    The intestate left a large real and personal estate. In his life-, time he had advanced to his son Charles on the 4th day of July, 1839, the sum of $3000, for which he took his bond, payable on demand without interest.
    On the 28th day of May, 1844, he advanced to his said son Charles the sum of $3630, for which he took a bond, payable on the’28th of May, 1845, with interest.
    On the 1st day of April, 1848, he advanced to his son Ezra one thousand dollars, for which he took his bond, payable on demand without interest.
    These bonds were included in the inventory, and the administrator in his account asked credit for them. The account was referred to an auditor, who struck from the accounts the credits there taken, and charged the administrator with the amount of the bonds.
    To the report of the auditor, exceptions were filed on the part of the administrator, alleging that the auditor erred in denying him a credit in his account for these bonds, contending that they were at the time of the intestate’s death, advancements and not debts.
    The intestate in his lifetime had charged in his general books of debts and credits, goods and money which he had given to all his children respectively from time to time.
    In the month of June, 1849, the intestate procured for himself a book which he marked “ William High’s Family and Guardian Register.”
    In this book he entered his said accounts against his children as debtors respectively, having taken the amounts from his book of general accounts.
    In his entries thus made, he directed in each case, except in that of his daughter Rebecca, that the amount thus charged against each child should remain charged until after his death, and then it was to be deducted from said child’s share of his estate.
    In this same book he made the following entry as to the bonds of Charles High.
    July 4, 1839. _ Charles High Dr.
    _ I hold a bond against Charles High my son for $3000 00, bearing the above date and payable on demand without interest. $3000 00
    I also hold another bond against Charles High my son for $3630, dated the 28th day of May, 1844, with interest from date to the 28th of May, 1848, is five years, which together with the principal amounts to $4,719 00. _ _ $4719 00
    _ _ I now do order and direct that no interest shall be charged from and after the 28th of May, 1849, on the amount of said bond, either on principal or the interest then due. I have made an endorsement on the bond to that effect bearing the same date herewith.
    Witness my hand this 18th day of June, 1849.
    William High.
    The following entry was made as to Ezra High:
    1842. Ezra High Dr. To cash a balance due me as settled the 1st of May, 1842, on page 113 of my old ledger, the sum of $1453 61 where reference can be had, and in the inventory of farming utensils when he commenced farming, the above sum bears no, interest, and is to remain charged until after my decease and then to be deducted from his share of my estate, the 26th June, 1849.
    William High.
    I also hold a bond against Ezra High for $1000 00 dated the 1st day of April 1848, payable on demand without interest. 1000 00

      1830 1 “Daniel V. R. High, April 1. / To cash farming utensils when he commenced farming to the amount of one thousand dollars, this is to remain charged here until after my decease, then it is to be deducted from his share out of my estate, this account was originally charged in my old Ledger on page 95 and now charged here there the different articles are more fully set forth which may be referred to June the 25th 1849
    William High.
    Amongst the papers of the deceased was found after his death one in his own handwriting, on which he had set down each tract of land owned by him and its value — each debt due to him and its principal and interest, and the stocks owned by him, and the amount, and the amounts entered in his “Family Register” separately.
    The debts due to him on this paper are headed thus: “Bonds, &c., Int.” The two bonds of Charles and-the one of JEera are not included in this list of debts due to him. The bond of Ezra and the other charges against him are blended together, and the whole sum set down. This paper is added up and concluded thus:
    $84,599 Real Estate 13,637 Advance
    98,236
    20,473 Bonds, &c.
    118,709 Total.
    The amount of $13,637, set down as advancements, is the precise amount of all the sums' charged in his family book against his children respectively, including the two bonds of Charles and the bond of Ezra, except the sum of $20, the last item charged against his daughter Rebecca, which charge is dated December 24, 1850.
    This paper statement was made by the decedent between the 8th of July, 1850, and the 24th of December, 1850.
    In the report of the auditor it was stated that the only question in dispute before him was whether the bonds of Charles and Ezra, above-mentioned, should be considered as debts or advancements. That he had come to the conclusion that they should be considered as debts. By the express direction of intestate, however, they bear no interest. He observed that some of the children had received what are advancements. The amount received by Rebecca V. R. Fry differs as respects the mode in which it is charged from the amounts received by tbe others, the entry usually made as respected portions of the estate furnished to other heirs, and indicating an advancement, having been omitted in her case. The sum charged against Rebecca, he reported as a debt against her.
    Exception on the part of the administrator was filed to the report of the auditor, viz.: that he erred in deciding that the two bonds of Charles and the one bond of Ezra High were debts and not advancements; and in striking them from the credit side of the account of the administrator. On April 27, 1853, the exception was dismissed and the report confirmed. Appeal was taken, and error was assigned to the dismissal of the exception and the confirmation of the report of the auditor.

      Banks, for the appellant.
    — The question of advancement depends on the circumstances of each case, the intention of the parent entering essentially into it. Extrinsic evidence of his intention is often to be resorted to. It was said that the father in this case contemplated dying intestate. It was contended that all he had entered in the family book as to his children, were intended by him as advancements. The bonds are entered in the family book in which the other entries are made. It was contended that the object of the father was one which was to operate after his death. The entry as to the bond of Charles, was a declaration that he did not intend to collect the debt himself. That all the acts, conduct, and writings of the intestate, at any time relating to the bonds in controversy, are evidence for the consideration of the Court. In relation to the matter of advancements, reference was made to 1 Ser. & R. 312; 4 Ser. & R. 329; 4 Wharton 523; 5 Watts 83; 6 Watts 87; Id. 257; 10 Id. 56; 6 Id. 171; 5 W. & Ser. 400; 6 Barr 13; 2 Pick. 340; 4 Id. 24; 16 Verm. 197; 4 Wliar. 138. Whatever may be the nature of the original transaction between the father and son, it may be converted by the former into an advancement.

      Strong, for appellee.
    — An advancement is an irrevocable gift by a parent in his lifetime to his child, on account of such child’s share of his estate after the parent’s decease: 6 Watts 87, Hengst’s Estate; 1 Harris 580, Yundts’ Appeal. Intention to give is not sufficient; it must be consummated by action — and it was said that neither existed in this case. By taking the bonds, the father became creditor. The bonds were retained by him uncancelled at his death, and the burden of showing that the bonds were released lay upon the appellant. It was contended, from the entries on the bonds, and the inventory of property on the loose slip of paper, and in the family register, that the deceased did not intend that the bonds of Charles and Ezra should be considered at his death as advancements. That though he did not intend to collect the bonds, that was not important; the material question was, whether he put it out of his power to do so. It was contended that the entries on the loose piece of paper were memorandums of his property, and not intended by him to operate as a release or as a conversion of the bonds into advancements. It did not show any delivery by him of the bonds, nor anything equivalent to a release of them: 1 W. & Ser. 394; 4 Whar. 130; 1 Harris 581.
    June 21,1853,
   The opinion of the Court was delivered, by

Lewis, J.

— An advancement is an irrevocable gift by a parent in his lifetime, to a child, on account of such child’s share of the parent’s estate. Where a father, on advancing a sum of money to a son, takes a bond for its repayment, with or without interest, it is a debt, and not an advancement. Where a father thus takes a bond for money loaned, but takes none for money paid for farming utensils for his son when he commenced farming, the presumption that the money secured by the bond is a debt, acquires additional strength. And where the father deliberately enters in a book called a “ family register” both charges against the son, expressly directing that the money paid for farming utensils shall bear no interest, but remain charged until after his death, and then be deducted out of his son’s share of the estate; but makes no such entry in respect to the debt secured by bond, the indications of his purpose are too clear for doubt.

A brief statement of the nature and amount of his estate (including under the term “advance” the total amount of the debts against, and advancements to, his children), made on a small loose slip of paper found among his papers after his death, does not amount to a release of his bonds against his children, or convert them into advancements. The word “ advanced” may mean a “giving beforehand without expectation of recompenseor, “ the furnishing of money or goods in expectation of reimbursement.” It may have been appropriately used by General High to include all the advances made to his children, whether as donations or loans. It may have been properly used as describing the existing state of his affairs, and not as a word which worked a change in them. It must be understood in the first sense, because the paper itself is neither a deed, nor any other instrument by which a man passes his interest to another; but merely a schedule of his estate as it existed at the time. The object evidently was, merely to bring before his mind the existing condition and amount of his property, for the purpose of forming a proper judgment respecting the future disposition of it. The loose slips of paper on which a man makes calculations and estimates of his property, ought not to be converted into releases of debts justly due to him. They should not be used for this purpose, even if they bear indications of an intention to give or release them. An intention to give may be changed for good reasons, before it is carried out; and therefore should not be tortured by the courts into a present donation.

The decree of the Court below is affirmed.


text:
    Bigler versus Antes.
    1. One who builds a dam under the Act of 23d March 1803 in a navigable river, or in a stream declared by law a public highway, is entitled to the same protection against an inferior proprietor who would back the water upon his wheel, as the law would give him if his dam was on a stream not navigable.
    2. The statute gives the authority to erect dams to “ the owners of adjoining landsbut it is not necessary in an action for an injury to such a dam, or the mill connected with it, that the plaintiff should prove his title to the land.
    3. Possession is sufficient against a mere wrongdoer.
    4. One who is in possession is the owner to all intents and purposes except as against one who comes with a better title.
    5. In an action for backing the water, to the injury of the .plaintiff’s mill, the declaration and the proof are the same whether the plaintiff’s right to build the dam be founded on his riparian ownership or on the statute.
    Error to the Common Pleas of Glearfield county.

    This was an action of trespass, brought to December Term, 1850, by Philip Antes v. William Bigler and George L. Reed, for an injury done to his saw-mill, situate on the right bank of the West Branch of the Susquehanna river, in Lawrence township, Clearfield county, Pennsylvania, by the erection of a dam across the said river, below the plaintiff’s mill, by which it was alleged the water was dammed back to the plaintiff’s mill, of the full use of which he was deprived.
    In the declaration, the title of the plaintiff to his mill was not set out, but it was alleged that the plaintiff was lawfully possessed of the saw-mill, with the appurtenances, including the possession and ownership of all the water-power afforded at the said mill by the water of the river, when left in its natural state, to run and flow freely from the mill, without hindrance.
    On the trial, the Court permitted the plaintiff to give evidence of the condition of the defendant’s dam, from its erection to the present time, for the purpose of proving that it flooded the plaintiff’s mill up to the 25th November, 1850, the time when this suit was commenced; but not for the purpose of recovering in this suit damages sustained after its institution.
    On the part of the plaintiff, points were submitted: the first was, that as the title of the plaintiff to the land on which the mill was directed was not set out in the declaration, the plaintiff could not recover ; 2d. It being stated in the declaration that the mill is erected on the West Branch of the Susquehanna river, which is a public highway, the Act of 23d March, 1803, giving only to the owners of the land adjoining a stream of water declared by law a public highway the right to erect a dam or dams upon such stream, it should be alleged in the plaintiff’s declaration, that he is the owner of such land, &c., or he cannot recover in this action.
    3d. There also being no evidence given of the ownership of the plaintiff of any land, or where the lines of his land came to the river, he is not entitled to recover, and the verdict should be for .the defendants.
    Knox, J., negatived the first and second points, charging that the averment of the lawful possession and ownership of the mill and water-power therewith connected was sufficient, without setting out the particular manner by which the right was obtained; and to the third, that the plaintiff expressed his readiness to show his title, but that it being admitted that the plaintiff had been for some years the owner and occupant of the property, that this was sufficient to enable him to recover, if he had otherwise made out his case.
    Error was assigned to such charge, and thirdly, that the Court erred in admitting evidence of the situation of the defendant’s dam after the date of the institution of the suit.

      Burnside and J. W. Smith, for the plaintiffs in error.
    The right to erect a mill,-dam on a navigable stream given by the Act of 23d March, 1803, is given to the owner of the land; and the right to recover damages for backing water to his injury, is in consequence of his ownership. The right to recover is because he is the riparian owner: 2 Binn. 475, Carson v. Blazer; 14 Ser. & R. 71; 10 Id. 73; 3 Id. 84.
    This riparian ownership should have been set out in the declaration ; and no evidence of such title was admissible, unless it were set out in the declaration. Also, that the ownership of the land should appear on the record, as it might be evidence in an after suit for a continuance of the act.

      Ourtin, with whom was J. B. McJEnally, for the defendant.
    By agreement of the counsel, the decision of the case was to be on the exceptions made to the declaration, and to the opinion of the Court on the points.
    ■ The mill of plaintiff was built above twelve years before the institution of the suit, using the water of the river to drive it. In 1850, the defendants erected a dam in the river about one and a half miles below the dam of the plaintiff. When the defendant’s dam was closed, the water flowed back from eight to fourteen inches on the wheel of the plaintiff’s mill, in an ordinary stage of water, and the mill was thereby injured. The plaintiff did not claim damage for the mere flow of the water on his land, but in the declaration the lawful possession of the mill is alleged ; and it was contended that this was all the law required: 2 Chitty’s Pleading 413. By the word owner is meant one who occupies and uses the water of public streams for a lawful purpose. The owner of a less estate than a fee-simple can claim protection under the Act of 1803; and so, the owner of a mill situate on a navigable stream turned into his mill by a dam on the land of another, to which the former has no title. It was admitted on the trial that the plaintiff had been for years the owner and occupant of the property.
   The opinion of the Court was delivered by

Black, C. J.

— The plaintiff had a mill on the river Susquehanna, which was injured by a dam of the defendant’s, built in the stream below; and for this injury suit is brought.

If the plaintiff’s mill and the defendant’s dam had been built on a stream not navigable, and not declared by law a public highway, the right of the injured party to recover would have been incontestible, since by the common law the water of such a stream is the property of the riparian owner, and his enjoyment of it cannot be disturbed. This does not extend to tide-water streams in England, nor to large navigable rivers in Pennsylvania: (2 Bin. 475; 14 Ser. & R. 71). The privilege of using the water of the Susquehanna is therefore not incident to the ownership of land on its margin. But by the Act of 23d March, 1803, the right of building dams in navigable streams was given to the owners of adjoining lands. It cannot be denied that one who builds a mill and a dam according to this statute, is entitled to all the protection in its use, which the law would give him if his works had been erected on a stream not navigable. An inferior proprietor has no more right to back the water on his wheel in the one case than in the other.

But it is argued that inasmuch as the right to erect dams is given to the “owners of adjoining lands” and not to others, the. plaintiff was bound to set out his title in the declaration, and prove it strictly, since by that means alone he could bring himself within the terms of the statute. But this proposition cannot be sustained. The rule is universal that one who is in the peaceable possession of land, has all the rights of an owner as against a mere wrongdoer. He is the owner to all intents and purposes, and is always so treated in law, except in a contest with one who has a better title. Privileges given by statutes to the owners of lands, are always given primd facie to those who possess them, and not to those who have a legal title which may or may not be enforced. The plaintiff’s averment, therefore, that he was in possession of the mill, if sustained by proof and followed by evidence of the injury, was sufficient to justify this verdict.

But the declaration goes further. It avers that the plaintiff was lawfully possessed of the mill and the water-power. This was more than sufficient; for a lawful possession means a possession by legal title. To have set out the manner in which the title became vested in the plaintiff, would have been extravagantly useless.

The riparian owner on a stream not navigable, may put a dam across it by the common law. The owner of lands on the margin of a navigable river, may do the same thing by virtue of the statute. Why should the one be held to stricter proof of his title when he seeks to recover for an injury than the other ? The right of each results from ownership, and ownership in one case means just what it does in the other. Yet, it has never been heard of that when a man’s common law right to the water flowing through his land is interfered with, he may not sustain an aetion without proving his title as he would in ejectment.

Besides: all the discussion about the plaintiff’s right to build a dam is outside of the record. The complaint is not for any injury done to the dam. In point of fact it was not injured. But the mill was, and this he had a right to put there independent of the statute.

Judgment affirmed.