text:
    Wright versus Wood.
    1. In a return to a joint .and several commission it was stated that the depositions were taken by virtue of the commission, and at the end of the interrogatories and answers was the name of each witness and of one of the commissioners, and the signature of the latter was to each page. The return was signed by the same commissioner without a seal' — but along the seal to the envelope was signed his name as commissioner: Held, that the commission was properly executed.
    2. A power of attorney executed by an agent of the defendant without the intervention of the latter, and on which the suit was not founded, may he proved by the party who executed it. The subscribing witnesses need not be called.
    3. The rejection of evidence offered to prove a fact which is afterwards found in favor of the party who offered the evidence, is not material.

      4. The plaintiff claimed under a deed from the children and heirs of a former owner; and the defendant under a deed from the ancestor which was unrecorded. Held, that the possession of one either in person or by his tenant is notice of his unrecorded title; but the possession of an intruder is not notice of the title of a stranger! A mere possibility that information of the defendant’s title under the unrecorded deed could have been obtained by the plaintiff from the intruder, will not raise the presumption of notice of it.
    5. A judicial sale of an interest in a tract of land, does not amount to notice of such sale to a stranger to it, the party sought to be affected by it not having actual notice of it.
    6. There is no efficacy in a possession held under an adverse claim which had terminated before the plaintiff began to negotiate for the purchase of the premises.
    7. A point not made below is not the subject of an assignment of error.
    Error to the Common Pleas of Bucks county.

    This was an action of ejectment brought in August, 1849, in which William Wood was plaintiff, and Robert Wright defendant, to recover the whole of a tract of 164. acres of land situate in Bristol township, Bucks county.
    The plaintiff claimed under deeds from children of Jane Yanschuyver, executed respectively in October, 1846, in. December, 1846, and on 3d January, 1847.
    The defendant, on the ground of the illegitimacy of Jane Yanschuyver, claimed under a deed of William Sisom and wife and Martha Toombs, to William F. Swift, dated 17th March, 1818, and duly recorded, the grantors claiming as heirs at law of Rachel Swift, daughter of Rachel Swift, formerly Rachel Sisom, a daughter of Joseph Sisom; William Sisom and Martha Toombs, two of the grantors, being brother and sister of Joseph Sisom, and being next of kin to his children John and Rachel, if Jane were illegitimate. The defendant also claimed the whole tract under a conveyance by Samuel and Jane Yanschuyver, in 1821, to Joseph Hulme, under whom the defendant claimed title. The deed to Hulme was however not recorded when the deeds to the plaintiff were made.
    John Sisom by his will, proved February 27, 1799, devised the land in dispute as follows : — “ I give and devise the messuage and tract of land, which I purchased of Pearson Mitchell, situate in Bristol township aforesaid, with the appurtenances, to him, my said son Joseph, during his natural life, and then to be equally divided among his surviving children, to be holden by them, their heirs and assigns in severalty.”
    Joseph, the son, died before the testator, leaving three children, viz. Jane, Jo,hn, and Rachel. John died in his minority without issue. Bachel, married to William F. Swift, died on the 17th of December, 1816, leaving a husband and one child, named Rachel, surviving her. This child also died on the 3d of March, 1817, Jane, who was the eldest of the three children of Joseph Sisom, was the only one surviving on the 3d of March, 1817. She intermarried with Samuel Yanschuyver in 1815, and died on-the 4th of October, 1841; her husband having previously died on the 23d of August, 1839. Jane Yanschuyver left issue eight children, to wit: Jane Anna, John, Wesley, Mary E., Margaret, Rebecca, Charles, and Ellen, who by several deeds of conveyances executed in December, 1846, and January, 1847, and duly recorded, conveyed the land in dispute to William Wood, the plaintiff, in fee. On the trial, the plaintiff rested his claim on two different and distinct titles. He claimed the entire tract of 164 acres on the ground that the title vested in Jane Yanschuyver by descent as the only surviving heir of John Sisom and Rachel Swift the younger. If he failed in this, he then claimed an undivided third part, which had been devised to Jane Yanschuyver by the will of John Sisom at the death of her father, Joseph Sisom.
    The defendant, in addition to the. claim under the deed from William Sisom and wife and Martha Toombs, .resisted on two grounds. First, that Jane Vanschuyver, under whose heirs the plaintiff claimed, was born before her parent’s marriage; and secondly, even if legitimate, that she and her husband had, in 1821, conveyed all their title and interest in this tract of land to Joseph Hulme, under whom the defendant claimed title. As to the plaintiff’s right to recover an undivided third, the defendant admitted, that whether Jane were legitimate or not, the true construction of the will of John Sisom, included her in the devise to the children of Joseph; and that under that will, she was entitled jo one undivided third part, such being the clear intention of the testator. But he contended, that by the deed to Hulme, she and her husband had in express terms conveyed to him in fee this undivided thud, as well as any greater interest which they might have in the premises.
    The deed of Yanschuyver and wife to Hulme, although acknowledged, had not leen recorded. How far the plaintiff was to be affected by this unrecorded deed, under the circumstances given in evidence, became the principal question in the investigation of this branch of the case, and one on which it was finally ruled by the Court.
    On the trial the plaintiff gave in evidence as follows:—
    The will of John Sisom, containing the foregoing extract, dated 26th of December, 1797, and proved 27th of February, 1799.
    Depositions of sundry witnesses taken at Rochester, in the state of New York, under a commission directed to Royal Chamberlain and Charles H. Clark or either of them, were offered. The defendant objected to the reading of these depositions in evidence on the ground,
    1. That it did not appear that they were taken before the commissioners, or either of them, to whom the commission was directed.
    2. That some of the depositions were taken in the spring of the year after the commission issued, and others in the subsequent fall, after an interval of about six months.

      3. That it did not appear that the commissioner's returned the commission under their seals.
    The rule for the commission was entered on the 24th of November, 1852, and interrogatories filed on the same day; of which notice was given to the defendant. The depositions were taken at three different periods, to wit: — February 17th, 1853, November 24th, 1853, and November -26th, 1853. The following memorandum is prefixed to the depositions taken on the 26 th of November, 1853: “Depositions of witnesses produced, sworn, and examined on the 26th day of November, in the year of our Lord 1853, at the house of Nehemiah Osburn, in the city of Rochester, in the county of Monroe and state of New York, by virtue of a commission issuing from the Court of Common Pleas of'the county of Rucks, in the Commonwealth of Pennsylvania, to Royal Chamberlain and Charles PI. Olark, Esquires, directed for the examination of witnesses in a certain cause depending in said Court, wherein William Wood is plaintiff, and Henry Compton and Robert Wright are defendants.”
    Then follow the interrogatories and answers, and at the end thereof is the signature of the witness, with the words “ Charles H. Olark, Commissioner,” opposite thereto. At the foot of each page are also the words “ Charles H. Olark, Commissioner.” The depositions taken on the 26th of November, differ only in one particular from the form used in taking the depositions on the 24th of November, and the 17th of February, 1853; and that is, instead of saying “at the house of Nehemiah Osburn,” the words in the others are, “at the office of Charles N. Olark.”

    The following is the return made of the commission: — “ The execution of this commission appears in a certain schedule hereunto annexed.” (Signed) Charles H. Clark, Commissioner.
    There was no seal affixed to the name of Charles H. Clark, in any part of the proceedings. They were enclosed in an envelope, addressed to the prothonotary, sealed in the ordinary manner of sealing letters with wax; and on one side of this letter seal, were the words Charles N.; and on the other Olark, Oom’r.

    The Court overruled the objections, admitted the depositions, and at the request of defendant sealed a bill of exceptions.
    Depositions were read to prove the parentage of Jane Sisom, and her marriage to Samuel Yanschuyver, and their children,-and the death of the parents. Also that Samuel Yanschuyver and wife had possession of the land in dispute for five years after their marriage. They removed to New York in 1823, and 'in 1837 to Canada, where they died.
    In reply to the 10th interrogatory, as to whether William Wood, the plaintiff, entered into possession of the premises in 1849, James JS. Squires deposed that William Wood gave him a power of attorney, dated March 16, 1847, which was produced, authorizing him to take possession of the premises, to employ attorneys, and to lease. This power of attorney had two subscribing witnesses. It was read. Squires proceeded to state that in March, 1847, he went to Bucks county to take possession, and while there, on the 29th of March, he executed a power of attorney to Alonson Anson. It was produced, and purported to authorize Anson to take possession of the land in question. This was executed in the presence of two subscribing witnesses. This power of attorney to Anson was offered and was objected to, on the ground that the subscribing witnesses were not called, or any proof given of their handwriting if dead or out of the jurisdiction of the Court. The objection was overruled, on the ground that it was direct proof by the party who did the act.
    There was then given in evidence a lease from Squires to Anson for one year, dated March 29, 1817.
    There were then given in evidence three deeds from children of Jane Yanschuyver to' William Wood, the plaintiff, one dated December 1, 1846, one dated July 3, 1847, and a third dated July 27, 1847. _
    _ The plaintiff’s counsel then rested.
    On part of defendant evidence was given as to the illegitimacy of Jane Yanschuyver, formerly Jane Sisom.
    Also offered in corroboration of the evidence as to her illegitimacy, an Act from the Pamphlet Laws of Pennsylvania for 1816-17 ; viz., An Act legitimating Jane Yanschuyver.
    This was rejected.
    On part of the defendant various deeds and legal proceedings, &c., were given in evidence to show title in him. The first was a. deed by William Sisom and wife, and Martha Toombs, to William F. Swift in fee, for 164 acres (the tract in dispute), — dated 17th of March, 1818, acknowledged same day, and recorded April 16, 1818. This deed contains the following recital: “ They, the said William Sisom and Martha Toombs, being heirs at law of Rachel Swift, daughter of William F. Swift and Rachel his wife, late Rachel Sisom, who was a granddaughter of John Sisom, and one of the children of Joseph Sisom, deceased.” William Sisom and Martha Toombs, grantors, were brother and sister of Joseph Sisom, and as next of kin would inherit the shares of John and Rachel Sisom, if Jane were illegitimate.
    Deed, Samuel Vanschuyver and Jane his wife to Joseph Pulme in fee, dated April 2d, 1821, and acknowledged in the same year, but not recorded. Consideration, $2000. This deed conveyed to Hulme and his heirs, “ all that the one undivided third part or whatever other or greater interest or claim they, the said Samuel Vanschuyver and Jane his wife, in right of the said Jane or otherwise, have or malee of in and to” the tract of 164 acres now in dispute.

      Deed of assignment by Joseph Hulme to Farmers’ Bank of Bucks county, dated July 5, 1821. Also deed of Farmers’ Bank to James Wright, dated April 1, 1825. Deed by administrators of estate of James Y/right to James H. Wright. Also deed by the administrators of estate of James H. Wright to William Osmond, ■dated 31st March, 1842, recorded in February, 1848, on sale confirmed by Orphans’ Court in March, 1838. Also deed by the sheriff to Robert Wright, the defendant, dated November 9, 1846, sold under execution on judgment against William Osmond. The sale took place on 21st October, 1846.
    Evidence was offered to prove that from 1821 till the spring of 1842 possession had accompanied the conveyances.
    It appeared, as before stated, that the land had been sold by the administrators of the estate of James II. Wright to William Osmond, in March, 1838, by order of Orphans’ Court. Whpn the deed was about to be made, difficulty was made as to the title — it .being alleged that certain claims of dower existed, and that the estate of Wright was not settled. The execution of the'deed was postponed; Osmond paid to the administrators $1000 on account, and took possession on 1st April, 1838, and continued till 31st March, 1842, when he removed from it, and refused compliance with the terms of sale. Suit was afterwards brought in favor of the administrators against Osmond, and judgment obtained against him at April Term, 1846, for above $8000.
    In the meanwhile, viz., on 1st April, 1842, one Jonathan Sellings took possession without leave from either the administrators or Osmond, and he remained on the land till the last day of March, 1847.
    It was stated that Osmond admitted that he had not heard of the claim of Yanschuyver’s heirs.
    It was alleged that there was some evidence of actual notice by the defendant of the claim of the Yanschuyver claimants to be found in the testimony of Jonathan Sellings, who testified: I lived on this farm: went on in spring, 1842, and went off last day of March, 1847. I held under no one. I took possession on my own hook. No one in possession when I went in. I applied to Robert Wright for permission to go on the farm. He said he would have nothing to do with the renting of it, I should go and see Nathan Hellings, the other administrator. I did, and he said he would have nothing to do with it. I did not go to Osmond. Nobody made any effort to put me out during those five years.
    Cross-examined: Am son of Jesse Hellings. He called on Osmond at my instance. The reason the administrators gave for not renting to me, was that they had sold it to Osmond, and he had taken possession of it, and they would have nothing to do Avith the renting of it. This was I think about two weeks before the 1st of April, 1842. I did not take possession of this property under any claim I had to it. Did not go there at the instance of any of the heirs or alienees of Vanschuyver; they had no knowledge of my being there till the fall before the sale to Robert Wright.
    He further testified that Squires, the person who afterwards, in March, 1837, obtained the power of attorney from William Wood, the plaintiff, called upon him the fall before the sale to Wright the defendant, and a year or more before he, Hellings, left the place. He asked me about the place, and how I came there. I said I did not rent of anybody, that the place was in dispute between Osmond and J. H. Wright’s estate. Did not tell him anything else I know of now. I don’t know if I gave particulars of the dispute. He did not say much — was there but a few minutes. He said the place belonged to the Vanschuyver family. He talked as if he was agent of the Vanschuyver heirs. I don’t recollect that I said anything about suits in this Court. About a year before the sale, a man, who I afterwards learned was named Anson, was there, and asked me about the place, and I told him I had moved there, but did not rent from anybody. ■
    I paid dower to the widow of James Wright while I was in possession of the land. I expect I told him what I did to Squires about the dispute between Osmond and Wright’s administrators, if I told him anything about it; which of course I did if he asked of me about it.
    Some evidence was also offered to show that Anson took possession of the farm on 31st March, 1847, the day when Hellings left, and in a day or two afterwards was ejected by the defendant.
    On part of the plaintiff was given in evidence an ejectment to August Term, 1819, in favor of William F. Swift against Samuel Vanschuyver, for the same premises, in which, on May 29, 1820, verdict was rendered for the plaintiff for the undivided two-thirds of the premises, and for the defendant for the residue. Swift claimed under the deed from William Sisom and wife and Martha Toombs, dated in March, 1818, before referred to. The grantors therein claimed on the ground that Jane Vanschuyver was illegitimate. After this recovery Samuel and Jane Vanschuyver, viz., in 1821, conveyed all their right and title in the land to Joseph Hulme, as before stated — the deed being left unrecorded.

    Smyser, President J., charged the jury elaborately; and on December 9, 1853, verdict was rendered for the plaintiff for the undivided one-third part of the premises mentioned in the writ; and for defendant for the undivided two-third parts of the said premises; thus finding that Jane Vanschuyver was illegitimate, and therefore was entitled to but one-third of the estate by virtue of the devise; and that the plaintiff had not actual notice of the prior unrecorded deed of the defendant.
    It was assigned for error, — 1. The Court erred in admitting in evidence the depositions taken under the commission. 2. In admitting in evidence the power of attorney from James E. Squires to Alonson Anson, dated 29th of March, 1847, referred to in the deposition of the said James E. Squires. 3. In refusing to receive in evidence the Act of Assembly, with the preamble thereto prefixed, passed by the legislature of Pennsylvania on the 13th of March, 1817, conferring the rights of children born in lawful wedlock on Jane Vanschuyver, as contained in the Pamphlet Laws of the session of 1816-17. 4. In charging the jury as follows: “ As we can see nothing which ought to affect the plaintiff with notice on either ground, we think the plaintiff stands on the ground of a bond fide purchaser without notice, and as such is entitled to your verdict for one undivided third or the whole of the premises demanded in the writ, as the jury shall determine the question as to Jane Vanschuyver’s legitimacy.” 5. In not charging the jury that under the evidence in the case the unrecorded deed of Vanschuyver and wife to Hulme, did not postpone the defendant’s title to that of the plaintiff’s. 6. In not submitting to the jury for their determination all the facts bearing on the question, whether Hellings’ possession was “ in subordination” to all claiming title through Hulme, or whether he was “a mere intruder” “in privity with no person and no title.” 7. In charging that Wood the plaintiff was a bond fide purchaser, for value.

      Ross, for plaintiff in error.
    There was no certificate stating that the witnesses were sworn and examined by the commissioners or either of them, or that either of them was present when the witness was examined., and his answers reduced to writing. It is not stated in the caption that the depositions were taken by them, or in their presence. This should have been distinctly stated: 4 W. & Ser. 113. The signature of Clark is without date.
    2. That the power of attorney to Anson should have been proved by a subscribing witness, reference was made to 1 Starkie 371; 1 Greenleaf's Ev. § 569; 6 Bin. 16; 5 Ser. & R. 314; 9 Barr 441; Doug. 216; 4 East 53, Call v. Dunning; 3 Johns. 477; 9 Barr 441; 5 Watts 536; 2 Ser. & R. 44; 1 Star. Ev. 380.
    3. The Pamphlet Laws, printed by the authority of the state, are entitled to the same credit as exemplified copies of an Act, whether the law is private or public: 1 Greenleaf’s Ev. § 480; 6 Bin. 321; 2 W. & Ser. 159.
    As to the 4th, 5th, and 6th assignments, it was contended that Wood had either actual or legal notice of the conveyance by Vanschuyver and wife to Hulme, in 1821. Whatever is sufficient to put a party on inquiry amounts in equity to notice: 1 Atk. 490; 1 Sto. Eq. § 400; 1 John. Ch. 267; Sug. on Vend. 743-4. Possession of land is sufficient to put a purchaser on inquiry, and to ■amount to constructive notice: 16 Ves. 249; 2 Ves. Jr. 440; 2
      Sch. & Lef. 599 ; 1 Meriv. 282; 7 Watts 387; 7 Watts 276, Jacques v. Weeks; 1 Whar. 303; 4 Id. 259; 1 Barr 470. One qualification to the doctrine of notice from possession, is where the title ■which the party has put on record is consistent with his possession: 6 Ser. & R. 184; 7 Watts 382. It was contended that the possession of Hellings was such as to put Wood on inquiry. Though he were a mere intruder, it was said that he possessed such information as would have led the plaintiff to a discovery of the claim of defendant. If the plaintiff had inquired of Hellings, he would have found that he was in possession not under the heirs of Jane Vanschuyver, and that Hellings could have told him that the land had been sold to Osmond under an order of Orphans’ Court, as the property of James H. Wright; and that on the 21st October, 1846, about six weeks before Wood obtained his title, the sheriff had, on the premises, made sale of this land to Wright, the defendant, under the execution against Osmond. Hellings paid dower charged on the land to the widow of James Wright, deceased. He held the possession in subordination to the title under which the defendant claims.
    Further; from 1821, when Vanschuyver and wife conveyed to Hulme, till 1842, when Hellings took possession, the land was in the possession of the grantees respectively. None of the Vanschuyvers had been in possession of it from 1821 till the conveyance to Wood, the plaintiff, in 1847, a period of 26 years. Nothing but the coverture of Jane Vanschuyver prevented the operation of the statute of limitations.
    4. It was further contended, that the Orphans’ Court and sheriff’s sale of this land amounted to notice to Wood. The doctrine of lis pendens is not constructive notice of a prior unregistered deed; and the suits between Wright’s administrators and Osmond had been prosecuted to judgment before the purchase by Wood (3 Atk. 391); yet it was suggested whether judicial sales do not place a purchaser in a different position than a suit pending: 10 Watts 46, and 5 Id. 77, 14 Ser. & R. 118. The sale in 1846 under the judgment against Osmond was held on 21st Oct., 1846, and the deed was acknowledged on 9th Nov., 1846; and on the 1st Dec., 1846, two of the Vansehuyvers conveyed to Wood, and others conveyed to him on 21st Dec., 1846, and on 3d Jan., 1847. The sheriff’s sale was held at the time the plaintiff was about to purchase, and it was held on the premises. It was said, that, at all events, the jury would have had the right to infer knowledge by Wood from these facts, which should have been submitted to the jury.

      Lear, with whom was Du Bois, for defendant in error.
    The power of attorney to Anson was between strangers to this suit; and the proof of it was by the party who executed it. It was offered to show that Anson, as attorney of Wood, took possession of the premises in March, 1847, under liis deed, and this was not material in the case. Proof by subscribing witnesses is material only when the instrument has a direct bearing on the case, not collateral to it.
    Though a private Act of Assembly may be evidence for some purposes, it is not so clear that it is receivable to affect the rights of the person, unless he was privy to its passage.
    As to the question of notice. To be effective, notice should be clearly proved: 8 Ser. & R. 496. The only possession at the time of Wood’s purchase and for several years before was that of Hellings. He did not hold under Wright, the defendant, or any person under whom Wright claimed. He was a mere intruder. The law formerly was that notice of a tenancy will not affect a purchaser with constructive notice of the lessor’s title: 2 Sugden 293; but it is now settled that possession of a tenant is notice of his actual interest whether as lessee or purchaser: 7 Watts 382, Woods v. Farmere. But the possession of an intruder is evidence of Ms interest in the premises and no more: 6 W. & Ser. 469, Boggs v. Varner. If Hellings was tenant of no one, he was not the agent of any one, and it was said that the information derived from him would have been of the character of common rumor, which would have been insufficient: 2 Watts 78; 7 Id. 167. It was further said that before Wood could be affected with notice of the unrecorded deed, it should have been shown that Hellings possessed requisite information and that he would have communicated it. Knowledge of the possession has not the effect of visiting the purchaser with every fact and circumstance which he might have learned by making inquiry of the person in possession: 1 Barr 474, Hood v. Fahnestock. Hellings did not rent of any one, and there was no connexion between his possession and the unrecorded deed.
    There was no evidence of actual notice by Wood of the sheriff’s sale in 1846. Besides, it may have been that the right of Osmond was only to two-thirds of the premises, which would have been consistent with the purchase of the other third, for which alone the plaintiff obtained a verdict. The deed to Osmond was left for record by Wright himself in 1848, in order to complete the chain of title to him, after Wood had bought and had his deeds recorded, the deed to Osmond never having been delivered to him.
    A bond fide purchaser without notice is not to be affected by the mere circumstance that the vendor has been out of possession for many years: 2 Sugden 293.
    May 16,
   The opinion of the Court was delivered, by

Knox, J.

There is no force in the objection made to the reception of the depositions taken under a commission issued to Chamberlain Clark of Rochester, New York.

The commission was joint and several, and the return shows that it was executed by Clark, one of the commissioners, and regularly returned in an envelope, sealed with his seal as commissioner. The commission authorized Clark to take the testimony, and he certifies that the witnesses were produced, sworn, and examined by virtue of the commission. This is all that the law requires.

The power of attorney from Squires to Anson was properly admitted, without proof of its execution by the subscribing witnesses. It was not the instrument upon which the suit was founded, and Wright, the defendant below, was in no wise connected with it. It was offered solely for the purpose of showing that the possession of Anson was under Wood, and having been proved by one of the parties to it, the rule which requires proof by subscribing witnesses was inapplicable. A grantor is a competent witness to prove that he had executed a particular deed, and it is not necessary to call the subscribing witness: Mix v. Smith, 7 Barr 75.

It is conceded that the rejection of the Act of Assembly as evidence of the facts, recited in the preamble, did no injury to the plaintiff in error, as the fact sought to be thus proved was found in his favor by the jury from other evidence.

We come now to the question of notice.

Both parties claimed under Jane Yanschuyver. The deed from which the defendant below deduced his title, was prior in point of time to that of the plaintiff from the heirs at law of defendant’s grantor. It had never been recorded, and thus it became essential to prove that the plaintiff had either actual or constructive notice of its existence. The charge of the President of the Common Pleas upon this branch of the case, contains an elaborate review of all the evidence relied upon to prove notice of the defendant’s title. Without examining it in detail, it is sufficient to say that the effort to show actual notice was a failure. It would have been clearly erroneous had the jury been permitted to find actual notice from the communication made by Hellings to Squires and Anson.

As to constructive notice. The possession of one either in person or by his tenant is notice of his unrecorded title; but the possession of an intruder cannot be held to be notice of the title of a stranger. The evidence was clear that the possession of Hellings had no connexion -whatever with the title under which the defendant claimed. It is barely possible that an inquiry of Hellings would have elicited some information in regard to the claim of Wright. A mere possibility will not suffice to obviate a difficulty occasioned by the neglect to comply with the recording acts.

A judicial sale of one’s interest in a tract of land, unless the fact is actually made known to the person sought to he affected with notice, proves nothing. Neither is there any efficacy in a possession which had terminated long before the negotiation was commenced which led to the purchase by the plaintiff.

We agree with the Court below that there was no evidence in the case which established actual or constructive notice to Wood, ■of the unrecorded deed from Vanschuyver and wife to Joseph Hulme.

The 7th assignment, viz. “The Court erred in charging that Wood, the plaintiff, was a bond fide purchaser for value,” is frankly admitted by the counsel to raise a point not made below, and we cannot permit it to be made here. No objection was made to the character of the evidence, which was the receipt at the foot of the deed, proving payment of the consideration-money. Upon the contrary, the case was put both by the Court and counsel upon the question, whether Wood had received notice, not whether he was entitled to receive it; even if we were of the opinion that this point was of significance, we would not notice it.

The 8th assignment is abandoned.

Judgment affirmed.


source: Caselaw Access Project

author: Knox, J.

license: Public Domain

text:
    Elliott versus Smith.
    1. A tenant, generally, cannot dispute the title of his landlord, nor can he purchase an outstanding title and under it withhold the possession from his landlord; but when he becomes the owner of the title under which his landlord claims, either by purchase from the landlord or at sheriff's sale under a judgment which encumbers it, he may defend his possession.
    2. The tenant was not estopped from setting up his title as a purchaser at sheriff’s sale of the interest of the person under whom his landlord claimed, because he had made an ineffectual attempt to enforce a mortgage against the same land which was successfully resisted by the plaintiff who alleges it as an estoppel.
    Error to the Common Pleas of Bradford county.

    This was an action of ejectment brought in August, 1848, by Thomas Elliott v. Israel Smith, for thirty acres of land. It was tried at a special Court before White, J.
    See the case of Elliott v. Ackla, 9 Barr 42.
    ■ On the 17th June, 1842, Benjamin Ackla obtained a warrant for 170 acres of land on the west side of the Susquehanna river, in the township of Towanda, Bradford county, on which he had previously resided a length of time. On part of the plaintiff in error, it was alleged that Amos, son of Benjamin Ackla, about the time of the issuing of the warrant, under an agreement with his father that he wrould give him 30 acres off the lower end of the tract, took possession of it, built one or two houses and a barn on it, and also planted an orchard and cleared and improved the whole of the 30 acres, and personally cultivated it himself until the day of 1843, when he leased the same to the defendant, Israel Smith, for the term of five years, at the rent of $55 per year. The right of Amos Ackla was sold on a judgment obtained against him in September, 1843, and on the 5th May, 1847, Thomas Elliott, the plaintiff, received from the sheriff a deed therefor.
    It was alleged on part of Smith, the defendant, that Amos Ackla had no title by parol from his father to this land, but was merely the tenant at will of his father, who remained the owner of the same up to the time of his death, which took place in May, 1835. That in April, 1835, Henry W. Tracy obtained a judgment against Benjamin Achia for $79.84, which was revived against his executors after his death. That on a sale of the 170 acres on this judgment, Israel Smith, the defendant, became the purchaser at sheriff’s sale, and received a deed for the same on the 13th September, 1844. That he thus acquired the right of his landlord, Amos Ackla, and the tenancy on his part ceased.
    In answer to this part of the defendant’s case, the plaintiff showed that on the 22d day of September, 1826, Benjamin Aekla and Hannah his wife, in consideration of $3000, executed a deed to John Ackla of the whole of the 170 acres covered by the warrant to B. Ackla, and took a bond and mortgage to Benjamin Ackla and wife, to secure the payment of the purchase-money, the mortgage being duly recorded. That on the 21st June, 1843, a scire facias was issued on this mortgage by Hannah Ackla, who survived Benjamin Ackla, against John, the mortgagor, and Edward Overton and others, and Israel Smith, terre tenants. That “ on the 14th February, 1845, judgment was entered in favor of Israel Smith for one acre of land, and the mill thereon and appurtenances in his possession as terre tenant of George Tomb, it being the same land described in a certain deed from Benjamin Ackla and Hannah his wife to Daniel Cole and William Sill, dated 21st September, 1846, recorded, &c., it being admitted that the said deed is a good and legal defence for the land thereby conveyed." On 3d September, 1846, John W. Sweet and G. A. Holden were released from the suit, and E. Overton and Julius Holden plead payment, release, ¿>c., and that the mortgage is no lien on the lands held by them. On the 4th September, 1846, “ the jury found in favor of Julius S. Holden, terre tenant, for six acres of land described in a deed from William Ackla and Hannah Ackla to said Julius Holden and J. W. Sweet, dated February 9,1847; and in favor of the plaintiff for the residue of the land, for the sum of $2790, with costs.” September 4, 1846, rule to show cause why a new trial should not be granted. December 7, 1846, death of plaintiff was suggested, and Israel Smith substituted, and the rule for a new trial discharged. On the 17th day of September, 1846, Hannah Aclcla and Israel Smith entered into an agreement, by which, after reciting the above verdict on the mortgage on which judgment was expected to be obtained at the next term, and that the mortgage was a lien on the farm which Benjamin Adda had conveyed to John Ackla, being for the purchase-money, Hannah Ackla assigned the mortgage and the judgment to be obtained thereon (excepting $125 to Benjamin T. Case, and a reasonable fee to counsel), to Israel Smith, in consideration of certain covenants on the part of Israel Smith. And Israel Smith, by that agreement, “ released all claim against the estate of said Benjamin Adda, if any remain unsatisfied in carrying the above article into effect.”

    In 1847, the judgment obtained on this mortgage was reversed by the Supreme Court and a new trial ordered. See 6 Barr 228, Ackla v. Ackla.
    On the 11th September, 1848, the trial of the suit on the mortgage came on again in the name of Israel Smith, administrator of Hannah Ackla, against John Ackla, mortgagor, and Edward Overton and Julius Holden, terre tenants. Israel Smith having given in evidence the deed to John, and his bond and mortgage, rested. «■
    The defendants gave in evidence the deed of 21st September, 1826, of B. Ackla and wife, to Daniel Oole and William Sill, of the one acre mill seat. Also, the will of Benjamin Ackla, dated 14th April, 1835, by which he devised the whole land in his warrant to his sons Amos, John, Jonathan, Benjamin, Jr., and William, in certain shares, charging the portion devised to William with maintenance of his widow. Also the deed of 9th February, 1837, of William Ackla and Hannah Ackla, to Julius S. Holden, of the 6 acres before mentioned, as well as other deeds to Holdens and Sweet of other 6 acres of William’s part, and of the whole of Benjamin and Jonathan’s share, all which had become vested in Julius Holden. Also that Edward Overton became the purchaser at sheriff’s sale of the residue of William’s share (subject to the maintenance of the widow), which was sold on a judgment in favor of H. Mix, against William Ackla, and received a deed therefor on the 14th September, 1837. On the 16th September, 1839, Overton sold to John Ackla and took a judgment for the purchase-money. John took possession of the land, and maintained his mother up to the time of her death. Under this judgment there was a sheriff’s sale and deed to Overton, dated the Í5th December, 1842, of the whole' of the land conveyed to John, by Benjamin Ackla. On the 12th May, 1843, Edward Overton leased to John Ackla his (John’s) portion, and the remaining portion of William, binding him to maintain his mother. It was alleged on part of the in that soon after Benjamin Ackla’s death the sons claimed a share of their father’s land under his will, except John and Amos. That Amos claimed he had a good title to his portion, irrespective of the old man’s will; and John claimed the whole under the deed. It was however alleged on the part of the defendant in error, that there was no proof that Amos Ackla claimed that he had a good title, irrespective of the will. It was further stated on part of the plaintiff in error, that John consulted Overton, who advised him that his title was good under his deed. After some time an arrangement was entered into by John and hi» mother, with the other sons’ consent, that the land should be divided among the sons according to the terms of the will, and that the mother should be maintained out of William’s portion. On the running out of these portions subsequently by a surveyor, John was dissatisfied, and said he would claim the whole under his deed; but afterwards it was arranged between them by John’s taking, with the part given him under the will, a piece of that part devised to William, being a portion of the orchard. Subsequent to the last arrangement, the sons and those to whom they sold had respectively occupied the portions devised to them, and the widow had claimed and received her maintenance from William’s portion. That John Ackla assented to the purchase made by Julius Holden from William AcMIa.
    As a rebuttal of this, the plaintiff introduced John Ackla as a witness, who denied ever having made any such arrangement, only on condition of his brothers’ repaying to him what he had paid on the mortgage, which was $700; and alleged that they had never paid him any part of this money.
    There was given in evidence the record of a suit in ejectment brought by John against Julius Holden, S. Holden, Gr. A. Holden, and John W. Sw"eet, for forty acres of this land on the 17th of Augu'st, 1839.
    Other evidence was given by each of the parties.
    The plaintiff in this present suit showed that he held the land in trust for Edward Overton, who had paid the purchase-money.
    For a summary of some points submitted on part of plaintiff, see assignments of error.
    June, 1853, verdict for the defendant.
    It was assigned for error, — 1. That the Court erred in the answers to the 1st, 2d, 3d, and 4th points (being virtually one point), in which they were requested to charge that Smith, the defendant, was estopped from setting up his title in this suit, and which was answered in the negative.
    2. In charging, in answer to the 4th point on part of plaintiff, that the defendant was not estopped by the proceedings and judgment on the mortgage from setting up his title under the Tracy judgment as a defence in this suit.

      Overton, for plaintiff in error.
    It was contended that a tenant could not dispute the title of his landlord. 2. Israel Smith claimed under a sheriff’s deed (on a lien commencing the 24th of April, 1835), dated 13th of December, 1844, on a sale made the 10th of May, 1843. The deed from Benjamin Ackla and Hannah his wife to John Ackla, and the mortgage by John to them, are dated the 19th of September, 1826. The seire facias on this mortgage, in which Israel Smith was one of the defendants, issued on the 21st of June, 1843. On the 14th of February, 1845, judgment was entered in favor of Israel Smith for the one acre mill lot. On September 3, 1846, trial was had, and a verdict in favor of Julius Holden for six acres of land, and for the plaintiffs for ¡$2970 with costs.
    Israel Smith’s title was repugnant to that upon which the validity of the mortgage depended, and not having set it up as a defence to the whole claim on the mortgage, he was estopped for ever after-wards from claiming under it. He admits the right of Benjamin and Hannah Ackla to release from the mortgage and thus perfect John’s title. If the defendants against whom the judgment was had, in any way settled or got a release from this mortgage, their title could no/fc have been questioned by him. As to estoppel was cited 17 Ser. & R. 364; also Greenleaf Ev. p. 25; 8 John. Ch. 268; U. S. Eq. Dig. 428, pl. 43; Id. p. 551.

      Blwell, contra.
    The first point was before the Court in the case of Elliott v. Ackla, 9 Barr 42. • When Amos Ackla leased.the premises to Smith, the former claimed as devisee under his father’s will. In ejectment by the landlord against the tenant, the latter may show that the landlord’s title had expired: 4 Term Rep. 682; 1 W. & Ser. 496; 3 Watts 223, Young v. Algeo.
    Second point. — The decision in 9 Barr 42, before referred to, is a sufficient answer to this point. It is there distinctly held, contrary to the doctrine here contended for, that if Amos Ackla held under his father’s title, the sale to Smith, on Tracy’s judgment, gave him a title on which he could hold the land. There was no proof to sustain the assumption in this point that John Ackla and his mother made any arrangement. The father controlled what of the property he pleased in his lifetime; and by his will divided it among his children, who took and held it substantially in accordance therewith.
    As to the 4th point. It was in substance, that, although the property belonged to Benjamin Ackla in his lifetime, and the judgment of Tracy against him was a lien on the land, and the sale under that judgment gave Israel Smith a perfect title, he is now estopped from setting up that title, because he attempted to collect the mortgage given by John Ackla.
    If he had succeeded in his attempt, this would be law. But he did not. It appeared that John, Benjamin, and Hannah Acida treated the deed to John, and the mortgage by him, as a nullity. The facts proved were substantially as stated in the case of Ackla v. Ackla, 6 Barr 228, which was a writ of error to the first verdict and judgment in favor of Hannah Acida upon the mortgage. Overton’s judgment against John was not obtained until 1840, about five years after the land had been divided among the devisees under the will. He subsequently recognised the validity of the will, by selling to John the part of William, as devised by the will, &c. This was before §mith purchased the property as the property of Benjamin Acida.
    It is alleged by Overton that Smith is estopped, because he entered into an agreement with Hannah Acida, in 1846, to purchase of her the mortgage and the judgment when obtained thereon; and that, after the death of Hannah Acida, he was substituted upon the record as her administrator, and in that capacity attempted to enforce the mortgage.
    But Overton was not injured by that agreement. He was not misled by it. He was not a party to the agreement, nor did it in any way prejudice his defence against the mortgage. The result of the mortgage suit was the same as if that agreement had not been made.
    To constitute the species of estoppel here set up, “ at least three ingredients seem to be necessary: First, misrepresentation or wilful silence by one having knowledge of the act: Second, the actor, having no means of information, was by the conduct of the other induced to do what otherwise he would not have done: and thirdly, that injury would, ensue from a permission to allege the truth. And these three things must appear affirmatively:" Commonwealth v. Moltz, 10 Barr 531. “Where no injury has in fact arisen from the declarations or conduct of the party, he is not estopped:” Miller v. Cresson, 5 W. & Ser. 306, per Rogers, J.; Dezell v. Odell, 3 Hill 219; S. P. Patterson v. Lytle, 1 Jones 56, per Coulter, J.; Paul v. Squibb, 2 Jones 296.
   The opinion of the Court was delivered by

Knox, J.

The facts in evidence in this case were fairly submitted to the jury, and the law applicable to the facts clearly and . correctly stated by the learned Judge who presided at the trial in the Common Pleas.

A tenant cannot dispute the title of his landlord, nor can he purchase an outstanding title, and under it, withhold the possession from his landlord. When, however, he becomes the owner of the very title under which his landlord claims, either by purchase from the landlord, or at sheriff’s sale upon a judgment which encumbers it, he is not bound to give to another that which rightly belongs to himself. «

There is no pretence for saying that Smith was estopped from setting up his title as a purchaser of Benjamin Ackla’s interest, because he had made an ineffectual attempt to enforce a mortgage against the same land, which was successfully resisted by the very party now seeking to use it as an estoppel.

When the jury found that Benjamin Ackla was the owner of the land at his death, which they did by negativing the sale to John and the gift to Amos, the plaintiff’s case was hopeless.

Judgment affirmed.


author: Lewis, J.

text:
    Lennig versus Ralston.
    A bill of exchange was drawn on 3d July, 1850, in Philadelphia, blanks being left therein for the time the bill had to run before maturity and for the names of the payee and acceptor. The bill was sent to anjigent of the payors in London where it was negotiated. It was Held that it was to be presumed that the drawers intended the bill to be received as having been drawn in Philadelphia at the time of its date — that the party purchasing the hill in London was to be supposed as having in contemplation the law of Pennsylvania providing indemnity for dishonored bills — that the bill was therefore subject to the provision of the Act of 30th March, 1821, imposing damages at the rate of twenty per cent., and not to the Act of 13th May, 1850, which reduced the damages to ten per cent, on bills drawn after the 1st August, 1850.
    Error to the District Court, Philadelphia.

    This was an action in the name of Frederick Lennig v. A. Gr. Ralston and others, trading as A. Gr. Ralston & Co. The action was founded on a bill of exchange, dated at Philadelphia, drawn by the defendants in blank, and after being filled up in England, there negotiated. The bill, after being filled up, was as follows, the parts in italics being those inserted in the instrument after its transmission to England.
    Philadelphia, July 3, 1850.
    Exchange for £786, 7s. 3d. Stg.

      Ninety days after sight of this first of Exchange (Second and Third of same tenor and date unpaid) Pay to the order of George Sennet, Esq.,

    Seven hundred eighty-six Pounds, 7s. 3d. Stg.
    Value received and charge the same to account.
    To Adams Go. A. & Gr. Ralston & Co.

      Endorsed, George Sennet, London.
    Accepted July 22, 1850, at Messrs. Glynn & Co., London.
    The defendants, the drawers of the bill, were citizens of the United States, composing a firm in Philadelphia, two of them being residents thereof, the third partner, Ralston, being a resident of London, where they had a firm of the same name.

      The bill, after being signed in Philadelphia, was sent by the firm in Philadelphia to G. Ralston in London, who procured the same to be accepted by Adams' & Co. in London, and then sold the same to George Hennet, and filled in the name of Hennet as payee, and otherwise completed the bill, so as to read as before stated.
    At the time of the purchase as aforesaid, Hennet gave full value for the bill, and he afterwards had it discounted by the Commercial Bank of London, who gave full value for it, and had no knowledge of how the name of George Hennet had been inserted, nor of how or where the bill had been negotiated or filled in with the name of George Hennet.
    Upon maturity of the bill it was protested for non-payment, and notice thereof given to defendants, and the bill was then returned by the Commercial Bank of London to the plaintiff, as their agent in Philadelphia, to sue upon.
    The question was submitted to the Court whether twenty per cent, damages, allowed by the Act of 30th March, 1821, upon the principal of bills drawn upon persons in Europe, are recoverable in this suit. The Court below was of opinion that they were not recoverable in this case, and judgment was entered accordingly. Such judgment was assigned for error.
    The Act of 30th March, 1821, provides that wherever any bill of exchange, hereafter to be drawn or endorsed within this Commonwealth, upon any person or persons or body corporate of, or in any other state, territory, or place, shall be returned unpaid, with a legal protest, the person or persons to whom the same shall or may be payable, shall be entitled to recover and receive from the drawers or endorsers the damages afterwards specified, over and above the principal sum and charge of protest, together with lawful interest on the principal sum, &c. In case a bill be drawn upon any person or body corporate in Furope, or any of the islands thereof, the damages were to be twenty per cent.
    The Act of 13th May, 1850, reduced the damages to ten per cent, on such bills drawn or endorsed after the first day of August, 1850, within this Commonwealth, upon persons in Great Britain or other places in Europe.

      G. and J. Fallon, for plaintiff in error.

      G-. M. Wharton, for defendants in error.
    May 16,
   The opinion of the Court was delivered, by

Lewis, J.

This suit is brought for the benefit of the Commercial Bank of London, upon an instrument which bears upon its face every mark of a foreign bill of exchange, drawn in Philadelphia upon a house in London, and accepted by the latter. It is true that the bill was not actually negotiated in this state, so that it is not, Avitliin the letter of the statute of 1821, a bill “ drawn in Pennsylvania.” The drawers had a mercantile house in Philadelphia, and they placed “Philadelphia” at the head of the bill as the place at which it was to bear date, leaving blanks for the day of the month and the year. They fixed the amount of it and signed it, leaving blanks also for the period which the bill had to run before maturity and for the names of the payee and acceptors. All this was done by the defendants here. The instrument was then sent, in this imperfect condition, to their partner in London. This authorized him to fill the blanks and negotiate it in London; and he did so. It was purchased by the bank without any notice of the manner in which it originated or of the fact that it was issued in that city and not in Philadelphia. When that institution became the holder, it bore the dress of a bill of exchange drawn in Pennsylvania; and, upon the principle that every one is presumed to intend to produce all the consequences to which his acts naturally and necessarily tend, the presumption is that the defendants intended that the purchasers of it should receive it under the belief that it was a bill drawn in Philadelphia, in the usual course of business. The question is, whether they shall be compelled to perform their contract in the sense in which they intended the opposite party to understand it, or in a sense contemplated only by themselves, and entirely excluded by the terms of the instrument itself. It is very material to the parties that this question should be properly decided. The bill was drawn on the 3d of July, 1850. The Act of 13th May, 1850, reducing the damages on dishonored foreign bills of exchange to 10 per cent., contains a provision limiting its operation to bills drawn after the 1st of August, 1850. So that if the bill in question is to be enforced according to its terms, the Act of 30th March, 1821, giving 20 per cent, damages for its dishonor, furnishes the rule of decision.

All writers of authority on questions of morals agree, that promises are binding in the sense in which the promissors intended at the time that the promisees should receive them: Paley, ch. 5; Wayland, ch. 2; Adams, pt. 3, ch. 5. Upon this principle it was deemed a gross violation of contract, when Mahomet, after promising to “spare a man’s head," ordered his body to be out through the middle." When Tamerlane, at the capitulation of Sabasta, promised to “ spill no blood,” it was an infraction of the treaty to “ bury the inhabitants alive.” These monstrous constructions of contracts were condemned by the civilized world as gross violations of the established rule of construction already indicated: Vattel, B. 2, ch. 17, s. 274. There can be no plainer principle of equity than that which requires every one to speak the truth, if he choose to speak at all, in matters which affect the interests of others. He that knowingly misrepresents a fact for the purpose of inducing another to part with his money or goods is held to his representation in favor of the party who confided in it. It is upon this principle that the maker of a negotiable instrument is not allowed to impair its value in the hands of a bond fide holder, by denying the existence of a consideration, or by otherwise showing that it is not what it purports to be. Chitty on Bills 9; 7 C. & P. 633; Byles on Bills 65. On the same principle a man who procures credit for an insolvent person, by knowingly misrepresenting him to be a man of ability, is bound to answer in damages for the injury thereby produced. In truth, the law merchant is a system founded on the rules of equity, and governed, in all its parts, by plain justice and good faith: Master v. Miller, 4 T. R. 342.

When this bill was dressed in the costume of a Pennsylvania bill, it thereby gained a credit in the foreign market which it could not otherwise have received. The Act of 1821, providing ample damages in case of the dishonor of bills drawn in Pennsylvania, contributed to give it that credit. That Act must be considered as operating on the minds of those who purchased it. In Ripka v. Gaddis, Phila., March, 1852, it was declared by this Court, after a careful examination of the authorities, that “ it had been long established in the case of negotiable paper of every kind, that it is construed and governed, as to the obligation of the drawer or maker, by the law of the country where it was drawn, or made ; as to that of the acceptor, by the law of the country where he accepts; and as to that of the endorser, by the law of the country where he endorsed. ’ ’ In Hazlehurst v. Kean, 4 Dall. 20, it was affirmed that the parties in the purchase of a bill of exchange must be supposed to have in contemplation the law of the place where the contract was made, and it (that is, the law of the place where the bill was drawn) necessarily forms part of the contract. In Allen v. The Bank, 5 Whar. 425, the same principle was re-asserted. From this rule, thus repeatedly recognised, and well established, it follows that the bank in the purchase of this bill must be supposed to have had in contemplation the law of Pennsylvania providing indemnity for its dishonor. The law of this state was therefore a part of the contract of purchase, and we have no right to impair its obligation.

There is no reason why the statute of 1821 should not receive a liberal construction. It has been held that it is not a penal, but on the contrary that it is a remedial Act — that the damages given are not for punishment, but are intended as compensation — that its provisions are just and equitable, and highly necessary in a commercial community to guard the interests of innocent individuals, and to secure good, faith in commercial transactions: 5 Whar. 425. No one can foresee the extent of the injury which the holder of a foreign bill of exchange may suffer from its dishonor. It is not like a domestic obligation, the breach of which can, in general, be repaired by the presence and credit of the holder. But the dishonor of foreign bills may occur, and usually does occur, at points where the holders cannot supervise tne result, and where they have neither means nor credit to provide against the injury. These instruments are generally procured at a premium by the holders, for the purpose of making their purchases in the country where the bills are payable, or as the means of pursuing their travels, or maintaining their credit abroad. The great distance between the residence of the drawers and that of the acceptors must necessarily cause great delay in procuring indemnity from the former. In the mean time, the loss to the holders, if they rely exclusively upon the bills to maintain their credit and carry on their business, might be irreparable. Under such circumstances the recovery of the face of the bill only, with the usual interest, re-exchange, and costs, would be but a cold and inadequate remedy for so great an injury. The Act of 1821 was deemed necessary, in order to do justice in such cases, and for the purpose of maintaining our commercial credit in other countries. It should receive such a construction as will best promote the intentions of the legislature in these respects.

Upon the whole, we are of opinion that the bill should be met by the drawers in the sense in which they manifestly intended that it should be received by the holder, and we think that the District Court was in error in adopting a different rule.

Judgment reversed, and judgment for the plaintiff in error for $1453.31, with interest from the 18th May, 1852, and costs of suit.


text:
    Luzerne County versus Day.
    1. A suit will not lie against a county for services rendered by a physician in making a post mortem examination at the request of the justice before whom the inquisition as to the cause of the death was held, until demand made upon the county commissioners and their neglect or refusal to draw an order on the county treasurer for payment, though the inquisition has been approved of by the Court.
    2. The fact that the plaintiff who made the examination was a member of the inquest did not debar him from recovering for his services.
    3. In case of demand and refusal an action for compensation for the service rendered could be maintained before a justice of the peace.
    Error to the Common Pleas of Luzerne county.

    This was an appeal from the judgment of a justice of the peace, in an action by J. L. Day v. The County of Luzerne; which was brought to recover for service rendered as a surgeon in a post mortem examination held before an inquest convened by a justice of the peace. The proceeding had been approved of by the Court. The plea was non assumpsit.

    On the trial the Court charged, first, That the plaintiff might recover without proof of a previous demand upon the county commissioners. That the inquisition and its confirmation by the Court entitled him to recover on proof of performance of the service. Secondly, The Court charged that the plaintiff might recover though he was a member of the inquest convened to examine into the cause of the death.
    Yerdict was rendered for the plaintiff for $18
    The portions of the charge above referred to, were assigned for error; and thirdly, that the Court had not jurisdiction of the suit, —“ that the cause of action primarily depended upon the approbation of a Court of record.”
    By Act of 27th May, 1841 (B. Purdon 498), it is provided that “in all cases where by law the coroner of any county is required to hold an inquest over a dead body, it shall be lawful for a justice of the peace of the proper county to hold the same, where there is no lawfully appointed coroner, or he is absent from the county, unable to attend, or his office is held more than ten miles distant from the place where the death occurred or the body found; and said justice shall have like power to select, summon, and compel the attendance of jurors and witnesses, and shall receive like fees and tax like costs; and the inquest shall have like force and effect in law. Provided, that no fees or costs shall be allowed or paid said justice or inquest, until the proceedings are submitted to the Court of Quarter Sessions of the proper county, and said Court shall adjudge that there was reasonable cause for holding said inquest, and approve of the same.”

      H. Wright, with whom was O. B. Wright, for the plaintiff in error.
    The demand could be paid only by an order on the county treasurer, and the policy of the law required a demand to be made for an order before suit brought.
    There would be no right to demand until approbation and adjudication of the Court of Quarter Sessions, and the claim would then be demandable by virtue of the adjudication of the Court; and a justice had not jurisdiction: 7 Watts 314.

      Stout, for the defendant in error.
    The bringing of an action was a sufficient request: 1 Ch. Pl. 288; 2 Stark. Ev. 95; 1 Saunders Pl. & Ev. 211; 2 Brod. & Bing. 23; Stark. Ev. 92. The commissioners should have taken notice of the' approbation by the Court of the inquisition. It was said that demand was made upon the commissioners before suit, but no proof of it was given on the trial.
    2. It was testified that the post mortem - examination was made at the request of the justice; — the plaintiff was entitled to compensation for his service: 3 Barr 465, Allegheny County v. Watts.
    3. By the Act of May, 1841, the Court is not to approve of the hill of costs ; but whether there was reasonable cause for holding the inquest. The coroner has power to bind the county for such service: 3 Barr 465; and so has the justice of the peace who convenes the inquest.
    Justices of the peace have jurisdiction of causes of action arising from contract express or implied: B. Purdon 480. A justice has jurisdiction of a suit by an officer to recover his fees below $Í00, if suit be not brought till the determination of the suit in which the fees accrued.
   The opinion of the Court was delivered by

Knox, J.

The financial interests of a county are under the supervision and control of the county commissioners, who are required to pay all legal demands against the county by warrants drawn by them upon the county treasurer. This is the only mode of payment known to the law, and the claims are of such a multifarious character that it is impossible for the commissioners to know of their existence without presentation.

When a legal claim is presented for payment, it is the duty of the commissioners to draw their warrant for its payment. If this is refused, or if the order is not paid when demanded, a suit will lie against the county; but until demand is made, neither the commissioners nor the county are in default, and without it a suit cannot be maintained.

The interests of the public would be greatly prejudiced by permitting suits to be brought before demand made; but a contrary rule injures no one, as it is never expected that the warrants will be drawn until called for. The Court of Common Pleas held that a previous demand was unnecessary. This was erroneous. The other errors are not sustained.

Judgment reversed and venire de novo awarded.


author: Black, C. J.

text:
    Kemmerer versus Edelman.
    1. In an action for an injury to the plaintiff’s land alleged by him to have been caused by a mill-dam. owned by the defendants, and which was erected in 1832; but which was alleged by defendants to have been occasioned by an older dam erected about thirty years before, the Court submitted to the jury whether the dam last erected was a nuisance and the notice to remove it reasonable; and instructed the jury that the plaintiff could not recover if the overflow was caused by the old dam or by natural causes, such as the narrowing of the channel; but that if there had been the slightest flooding back on the plaintiff’s land caused by the dam owned by the defendants, they were liable to damages, nominal if slight, compensatory if substantial. Held, that in such submission and charge there was no error.
    2. It is too late to object in this Court to a question put to a witness on the trial of a cause as being a leading question, when it does not appear from the record that such objection was made to it at the examination, when its form might have been changed. The question “ did Peter Rhoades tell you where that corner was,” was not a leading question.
    3. If the declarations of a deceased surveyor in relation to a survey made by him were objectionable for want of the production of the draft of the survey referred to by the witness, the error was cured by the subsequent production of the draft.

      Error to the Common Pleas of Lehigh county.

    This was an action on the case by George Kemmerer v. Charles Edelman and William Edelman, to recover damages done to the land and water-power of the plaintiff, by the swelling back of the water of Lehigh Creek, alleged by the plaintiff to have been occasioned by a dam erected in 1832, and which was continued by the defendants; but which was attributed by the defendants to other causes.
    The declaration contained two counts: the first was for the erection of the dam, whereby the waters of the creek were caused to flow back, &c.; and the second was for the continuance of the alleged nuisance.
    George Kemmerer, the plaintiff, claimed above 61 acres of land, lying on the Little Lehigh Creek, under a conveyance to him on April 1, 1844. It lay above the land of the defendants.
    The defendants owned a tract of 3 acres and 36 perches, on which was a mill, their land lying on the creek. In 1828, a dam was erected on it by Samuel Fried, the then owner. In 1832, this dam was rebuilt by Jacob Edelman, the father of the defendants, and was stated to have been raised 2J feet higher than it was before. This new dam was continued by the defendants.
    On the 29th March, 1849, a notice, signed by the plaintiff, was served on the defendants, alleging an injury caused by their dam, and requiring the defendants, within a reasonable time, to reduce or lower their dam, so that the cause of-the injury might be removed ; otherwise, the plaintiff would seek redress by law. This not being done, suit was brought on 21st April following.
    The defendants endeavored to show that the swelling back on the plaintiff’s land was occasioned by an old dam below plaintiff’s line about ten or fifteen perches; and that there was no swelling over the land of plaintiff at the common stage of water; that the bed of the stream had been altered; that the creek had become deeper and narrower by reason of the grass growing along its banks. Defendants also endeavored to prove that on the south side of the creek, the plaintiff did not own any land; and for this purpose gave in evidence a draft made by Peter Rhoades, and his declarations as to where the corner was, &c. Rhoades had been a surveyor, and was dead at the time of the trial of this case.
    On the trial, Solomon Keck, a witness, was asked: “Did Peter Rhoades tell you where that corner was?” It appeared from the bill of exceptions, that the question was objected to generally. The objection was overruled, and exception was taken. The witness testified that Peter Rhoades was dead; that he (the witness) was along when Peter Rhoades ran the line; “ He told me the corner was in the creek;” they ran the line to the creek, and said the corner was in the creek, but how far in it Rhoades said he did not know. “It was at the same time he told me the corner was in the creek.” He further said, that Rhoades made the survey for him, and left the draft with him; and that he believed the draft was in the Court-house.
    The draft was soon after produced and shown to the jury.
    It was testified that the old dam existed in 1811. With the exception of part of the foundation, it had been torn away. On the part of the plaintiff it was contended, that this old dam could not have caused the injury complained of; but, on the other side, it was alleged, that what remained of it was an obstruction to the stream.
    Jones, President Judge, charged that the defendants, not having erected the dam, were responsible, if at all, only for its continuance. That it was necessary that the plaintiff should have given to the defendants notice before bringing suit. He thought that the notice, served more than three weeks before suit, was sufficient, considering the season of the year; but he submitted its reasonableness to the jury. He further charged, that if the water was flooded back fly the “ old meadow dam, and has not been raised by the subsequent erection of the mill-dam, the- plaintiff would have nothing to complain of. That old dam seems to have been a very ancient erection.”
    So, too, if the creek has been narrowed by the grass growing into its sides, and by the deposition of mud, &c., among that grass, and the water has been raised gradually by the contracting of the space within which it flows — so that the flooding back, if any, is attributable to natural causes and not to the Edelman dam —the plaintiff could not recover. “ Rut if, on the other hand, there has been any, the slightest flooding back of the waters, caused by that dam since it has been in possession of the defendants, for that the plaintiff could recover.”
    He further observed, that if the jury found for the plaintiff, they should give such damages as would compensate him for any substantial injury sustained; if the injury were slight, nominal damages were sufficient.
    Verdict was rendered for defendants.
    It was assigned for error that the Court erred in regard to the notice; in the subsequent part of the charge stated; and in the charge as to damages. 5. In allowing Solomon Keck to answer the question which was objected to. It was argued that the question was leading. 6. In admitting his testimony.

      Bridges and Davis, for plaintiff in error.

      Cfoepp and King, contra,.
   The opinion of the Court was delivered by

Black, C. J.

This was an action on the case for continuing a dam, whereby the water was swelled back on plaintiff’s land. The dam complained of was erected in 1882. The defendant alleged that the overflow was in fact caused by another dam built about the beginning of the present century, or by the gradual narrowing of the channel where it passes through the plaintiff’s land, and not by the dam erected in 1882. The plaintiff, however, gave the defendant notice to take down the last-mentioned dam, and upon its not being complied with, commenced the present action three ■ weeks afterwards.

The charge was a model of brevity and comprehensiveness. It left to the jury the questions whether the dam was a nuisance, and the notice to take it down reasonable; and then instructed them that the plaintiff could not recover if the overflow was caused by the old dam, or by natural causes such as the narrowing of the channel. But the Court said that the slightest flooding back caused by the dam complained of, would entitle the plaintiff to damages, nominal if the injury was very slight, compenáatory if substantial.

It is impossible to sa,y that there is anything wrong in all this, though every word of it is assigned for error. The speciousness of the plaintiff’s argument made us pause for a moment on one point. It seemed at first that the Court had referred to the old dam, as giving the defendant a prescriptive right to ■ pen back the stream. This it did not since it was built at a different place, for another purpose, and all actual use of it had been discontinued before that now used was built or thought of. But it stands where it did fifty years ago, and the Court mentioned it as being the possible cause of the trouble charged on the dam of 1832. Surely an action like this ought to be defeated if the facts satisfy the jury that no injury was done, except by a structure not mentioned in the notice or the nan'., which has existed for half a century without complaint, and to the abatement of which, if demanded, the defendant would probably have no objection. It is said, however, that there was no evidence of this. There was some: it was not the business of the Court to say how much. Several witnesses declared that the water was raised by the old dam; and besides, the jury viewed the place with their own eyes.

It is true that no alteration in the channel above could increase the absolute height of the pool made by the dam. But the Court permitted the jury thus to explain if they saw proper, not the height of the mill pool, but other swelling of the water alleged by the defendant to have no connexion with the dam,' and by the plaintiff attributed (perhaps falsely) to that cause. When a channel, where the stream is totally unaffected by a dam, loses its capacity by becoming too narrow or not deep enough to carry off the volume of water which previously flowed through it, the water must either be swelled back back-above, find another channel, or overflow its banks and spread out .in a sheet over the contiguous level. If such was the case here, it was proper enough to say that the defendant was not liable for the injury which it caused to the plaintiff’s land.

The exception to the admission of evidence has nothing in it. The question is not a leading one; and if it were, no advantage of that could be taken here unless it appears by the record that the specific objection was made at the time, so that the examining party might have an opportunity to change the form of his interrogatory. It is not worth while to inquire now whether the declarations of a deceased surveyor can be given in evidence to establish an old corner, without producing the draft, since the draft was produced immediately afterwards, and thus cured the error, if it was one.

Judgment afSrjned.


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    Railroad Company versus Aspell.
    1. Eailroad companies are answerable in actions of tort for the direct and Immediate consequences of errors committed by themselves or caused by.the negligence of themselves or their agents; but not for perils to which a passenger himself by his own rashness or folly.
    2. A railroad company is not liable to a passenger for an accident which he might have prevented by ordinary attention to his own safety.
    3. A passenger who has been negligently carried beyond a station where he intended to stop, and where he had a right to be let off, may recover compensation for the inconvenience, loss of time, and labor of travelling back; but where the plaintiff, under such circumstances, jumped off the car when in motion, though warned not to do so, it was Held that he could not recover for the injury sustained.
    4. The principle that there can be no recovery for an injury caused by the mutual neglect of both parties is applicable to an action for an injury which is founded on a contract.

    5. It was not carelessness in a conductor to announce the place to which •the train was approaching, being a usual stopping-place — it was not necessary for him to wait till the train was actually stopped before announcing it.
    6. A party is not chargeable with negligence in exposing himself to a manifest danger in endeavoring to avoid one to which he is exposed; but it was rashness in a passenger to leap from a railroad car in motion in order to avoid the inconvenience of being carried further, especially when warned of the danger of leaping from the car and informed that the car would be stopped and backed to the usual stopping-place.
    Error to tbe Common Pleas of Delaware county.

    This was an action on the case by Richard Aspell against The Pennsylvania Railroad Company.
    It was alleged in the declaration that the plaintiff became a passenger in the cars of the Pennsylvania Railroad Company from 'Philadelphia-to Morgan’s-Corner; that the car was not stopped at the latter place so as to allow him to alight safely — that in attempting to alight, he was, by reason of the rapid motion of the cars, thrown upon the ground, and one of his feet injured.
    The plea was not guilty. Yerdict for plaintiff for $1500.
    The plaintiff took passage from Philadelphia for Morgan’s Corner in March, 1851, in the night line. Just before reaching the latter place, the state agent endeavored to give the usual signal to the engineer to stop, by pulling the bell-rope. The rope did not operate, though the speed of the train was checked by the engineer in order more safely to pass certain switches. The speed of the train increasing, other signals were made to the engineer to stop, but whilst the train was in motion the plaintiff leaped from the car, though warned by the conductor and brakesman not to do so, and informed that the train would be stopped and backed to the station. The plaintiff’s foot was injured.
    The Court below charged that the pulling the bell-rope and the announcement of Morgan’s Corner warned the plaintiff that he had arrived there, and was expected to prepare for leaving. That though he was warned not to jump, he could nevertheless recover for the injury received. That the agents of the company, in announcing to the passengers the place of arrival while the cars were in motion at the rate of from seven to ten miles an hour, did not exercise the degree of diligence and care which the law required. That the train should have been stopped, before such announcement as to the place was made.
    It was further charged that in this ease a contract existed, and the train should have been stopped. That the announcement of Morgan’s Corner caused the plaintiff, in going to the platform, to be in a position of danger, and although it was imprudent in the plaintiff to jump from the car, though warned of the danger, yet the agents of the company being in fault, the plaintiff could recover.
    It was further chai’ged that the imprudence of the plaintiff might be considered by the jury in fixing the damages.
    The portions of the charge referred to were assigned for error.

      W. Darlington, for plaintiff in error.
    Whenever personal injury is concerned, the question is one of negligence: 2 Esp. N. P. Cases 533; 9 Bing. 457; 13 Wend. 626. In case of passengers, carriers are responsible for negligence: 13 Wend. 628. Negligence in the passenger bars any action by him. The party suing for injury occasioned by negligence should be wholly without fault: 19 Wend. 399; 21 Id. 615; 5 Barbour 337; 8 Id. 368; 11 Id. 112. In order to entitle a party to damages his negligence should not contribute to the injury: 13 Barbour 9; 12 Id. 494, Collins v. Albany, &c., Railroad Company; 14 Barb. 585; 8 Barr 482, Laing v. Calder.
    If the announcement was made before the train reached Morgan’s Corner, it was still contended that this announcement was not the immediate cause of the injury — and that to justify the passenger in leaving the body of the car on account of apprehended injury, there must be danger to life or limb in remaining in it: 13 Peters 181, Stokes v. Saltonstall.
    Lewis, for defendant in error.
    It was contended that it being in the night time, the passengers could not tell at what rate the train was moving, and that the circumstances showed such inattention to the safety of the passengers as amounted to negligence on the part of the agents of the company: cited Stokes v. Saltonstall, 13 Peters 181; Story on Bail, § 600. When the place was announced, it should also have been stated that the train would be stopped. After the defendants’ negligence had caused circumstances of difficulty, it did not relieve the company to show that the plaintiff did not conduct himself with the circumspection which a person self-possessed would have exercised. Carriers are bound to exercise extreme care not only in the structure of the road, but in the arrangements necessary to the safety of passengers: 4 Cush. 402.
   The opinion of the Court was delivered by

Black, C. J.

The plaintiff below was a passenger in the defendants’ ears from Philadelphia to Morgan’s Corner. The train should have stopped at the latter place; but some defect in the bell-rope prevented the conductor from making the proper signal to the engineer, who, therefore, went past, though at a speed somewhat slackened on account of the switches which were there to be crossed. The plaintiff, seeing himself about to be carried on, jumped from the platform of the car and was seriously hurt in the foot. He brought this action; and the jury, with the approbation of the Court, gave him $1500 in damages.

Persons to whom the management of a railroad is intrusted, are bound to exercise the strictest vigilance. They must carry the passengers to their respective places of destination, and set them down safely, if human care and foresight can do it. They are responsible for every injury caused by defects in the road, the ears, or the engines, or by any species of negligence, however slight, which they or their agents may be guilty of. But they are answerable only for the direct and immediate consequences of errors committed by themselves. They are not insurers against the perils to which a passenger may expose himself by his own rashness or folly. One who inflicts a wound upon his own body, must abide the suffering and the loss, whether he does it in or out of a railroad car. It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened, except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to his own safety, even though the agents in charge of the train are also remiss in their duty.

Prom these principles, it follows very clearly that if a passenger is negligently carried beyond the station where he intended to stop and where he had a right to be let off, he can recover compensation for the inconvenience, the loss of time, and the labor of travelling back; because these are the direct consequences of the wrong done to him. But if he is foolhardy enough to jump off without waiting for the train to stop, he does it at his own risk, because this is gross imprudence, for which he can blame nobody but himself. If there be any man who does not know that such leaps are extremely dangerous, especially when taken in the dark, his friends should see that he does not travel by railroad.

It is true that a person is not chargeable with neglect of his own safety, when he exposes himself to one danger by trying to avoid another. In such -a case, the author of the original peril is answerable for all that follows. On this principle we decided last year at Pittsburgh, that the owners of a steamboat, which was endangered by a pile of iron wrongfully left on the wharf, and to get clear of it was backed out into the stream where she was struck by a coal boat and sunk, had a good cause of action against the city corporation, whose duty it was to have removed the iron. If, therefore, a person should leap from the ear under the influence of a well grounded fear that a fatal collision is about to take place, his claim against the company for the injury he may suffer, will be as good as if the same mischief had been done by the apprehended collision itself. When the negligence of the agents puts a passenger in such a situation, that the danger of remaining on the car is apparently as great as would be encountered in jumping"off, the right to compensation is not lost by doing the latter: and this rule holds good, even where the event has shown that he might have remained inside with more safety. Such was the decision in Stokes v. Saltonstall, 13 Peters 181, so much relied on by the defendant in error. A passenger in a stage-coach seeing the driver drunk, the horses mismanaged, and the coach about to upset, jumped out and was thereby much hurt. The Court held the proprietors of the line responsible, because the misconduct of their servant had reduced the passenger to the alternative of a dangerous leap or remaining at great peril. But did the plaintiff, in the present case, suffer the injury he complains of by attempting to avoid another with which he was threatened ? Certainly not. He was in no possible danger of anything worse than being carried on to a place where he did not choose to go. That might have been inconvenient, but to save himself from a mere inconvenience by an act which put his life in jeopardy, was inexcusable rashness.

Thus far I have considered the case without reference to certain facts disclosed in the evidence, which tend to diminish the culpability of the defendants’ agents, while they aggravate (if anything can aggravate) the folly of the plaintiff. "When he was about to jump, the conductor and the brakesman entreated him not to do it, warned him of the danger, and assured him that the train should be stopped and backed to the station. If he had heeded them, he would have been safely let down at the place he desired to stop at, in less than a minute and a half. Instead of this, he took a leap which promised him nothing but death; for it was made in the darkness of midnight, against a woodpile close to the track, and from a ear going probably at the full rate of ten miles an hour.

Though these facts were uneontradicted, and though the Court expressed the opinion that no injury would have happened to the plaintiff but for his own imprudence, the jury were, nevertheless, instructed that the defendants were bound to compensate him in damages. The learned judge held that the cases of mutual neglect did not apply, because this action was on a contract! Now, a party who violates a contract is not liable any more than one who commits a tort, for damages which do not necessarily or immediately result from his own act or omission. In neither case is he answerable for the evil consequences which may be superadded by the default, negligence, or indiscretion of the injured party. There is no form of action known to the law (and the wit of man cannot invent one), in which the plaintiff will be allowed to recover for an act not done or caused by the defendant but by himself.

When the train approached Morgan’s Corner some one (probably the conductor) announced it. Much stress was laid on this fact. The Court said, in substance, that to make such an announcement before the train actually stopped, was a want of diligence whereby the plaintiff was thrown into a position of danger; and though he was warned not to jump, yet, having done so, he could make the company pay him for the hurt he received. We think this totally wrong. It is not carelessness in a conductor to notify passengers of their approach to the station at which they mean to get off, so that they may prepare to leave with as little delay as possible when the train stops. And we cannot see why such a notice should put any man of common discretion in peril. It is scarcely possible that the plaintiff could have understood the mere announcement of Morgan’s Corner as an order that he should leap without waiting for a halt. If he did make that absurd mistake, it was amply corrected by the earnest warnings which he afterwards received.

The remark of the Court that life and limb should not be weighed against time, is most true; and the plaintiff should have thought of it when he set his own life on the hazard of such a leap for the sake of getting to the ground a few seconds earlier. Locomotives are not the only things that may go off too fast; and railroad accidents are not always produced by the misconduct of agents. A large proportion of them is caused by the recklessness of passengers. This is a great evil, which we would not willingly encourage by allowing a premium on it to be extorted from companies. However bad the behavior of those companies may sometimes be, it would not be corrected by making them pay for faults not their own.

The Court should have instructed the jury that the evidence taken altogether (or even excluding that for the defence), left the plaintiff without the shade of a case.

Judgment reversed and venire facias de novo awarded.


text:
    Laporte versus Bishop.
    1. A testator devised certain real and personal estate to his wife during widowhood, directing that after her marriage or death it should be divided, and $500 given to each of four nephews, and the residue to a fifth. He also directed that in case of his wife's marriage or death before the nephews became of the age of 21 years, the property was to be divided, and his executors to take charge of the part given to the nephews until they were 21 years of age. The widow married while the nephews were minors, the property was converted, and the executors had charge of the proceeds :
    It was Held that the legacies to the nephews were payable on the marriage of the widow, and they were entitled to interest from that time and not merely from the time of their arriving at full age.
    2. It was provided in the will that if either of the nephews should not be of sober and steady habits at the time he was to be entitled to the legacy, then his legacy was to be divided among other persons, the executors to decide upon the subject. Held, that this provision' did not affect the question of interest. The manner of exercising the trust was to be the same no matter to whom the legacies were eventually payable.
    Error to the Common Pleas of Bradford county.

    This was an action by John Laporte v. E. M. Bishop, deceased. The plaintiff was a legatee under the will of Gilbert Chamberlain. The question at issue was whether the plaintiff was entitled to claim interest on his legacy of $500, from the marriage of the widow of the testator, or from the time when he subsequently came of
    G. Chamberlain, by his will, dated 25th September, 1841, bequeathed to his wife the one-half of his remaining real and personal estate, and he gave to her the use and control of the other half, with certain exceptions, as long as she lived or remained his widow. As to the portion of the estate of which the widow was to have the use, he devised certain legacies to take effect after the marriage or decease of the widow, viz., to four of his nephews $500 each, and the remaining part of the said half he bequeathed to another nephew. As to the said legacies he further directed, That if either of the said legatees (his nephews) should not be of sober and steady habits at the time they shall be entitled to the legacy, then the sum bequeathed to him was to be divided among the other children of the same family, and the executors were to decide as to whether the nephews were, from their habits, entitled to their legacies respectively; with a right of appeal to the Orphans’ Court. He further directed, That in case of the marriage or death of his wife “before the above-named legatees become of the age of twenty-one years, then the property, real and personal, is to be divided, and my executors are to take charge of the part which is given to my above-named nephews, until they are twenty-one years of age, and are entitled to their respective shares,” &c. He also directed, That at the time the above-named legatees became of the age of twenty-one years, should his wife remain his widow, it was to be left at her discretion whether to pay to each his legacy, or use the same until her death.
    The widow became married on the 5th August, 1845. Wilmot, J., charged the jury that the plaintiff was entitled to recover interest on his legacy from the marriage of the widow, which occurred before his arrival at full age. Such instruction was assigned for error.

      Mercur, for the plaintiff in error.
    It was contended that the legacies not being payable till the legatees became of full age, and there being no provision for the payment of interest upon the legacies before they were payable, the plaintiff was not entitled to recover interest from the marriage of the widow: 4 Rawle 119; 7 Harris 54, Seibert’s Appeal.

      Hhvell, for defendant in error.
    The intent was, that if the widow should marry, the portion of the estate not devised to her absolutely, should be received by the executors in trust, and they must account for it with its accumulations. The nephew to -whom the residue was bequeathed, like the others, was not to be entitled unless of sober habits. If he were not, his share was to go to others. It did not appear that the testator intended that after the shares were received by the executors, the residuary legatee was to have the interest on all of the shares; and the executors had no right to retain it for themselves.
   The opinion of the Court was delivered by

Black, C. J.

Testator by his will gave certain real and personal property to his wife during widowhood, and directed that, after her marriage or decease, it should be divided, and given, $500 each, to four nephews, and the residue to a fifth one. The testator .also directed that, in case of his wife’s death or marriage before the arrival of the legatees at the age of twenty-one, then the property should be divided, and the executors should take charge of the sums given to his nephews, until they should be entitled to their respective shares. The widow married while the legatees were minors; the property was turned into money; the executors took charge of the shares; and when the claimants were twenty-one, paid the principal but refused to pay any interest. Interest was demanded from the marriage of the widow. This is a suit by one of them to try the question.

We are of opinion, as the Court below was, that the interest is demandable as well as the principal. It is to be presumed that the money, after it was received by the executors, produced a profit of six per cent, at least. If this accumulation is not to go to the several legatees in the same proportion as the principal is divided, then there can be only two other ways to dispose of it: it must all be given to the fifth nephew, who is the residuary legatee, or else the executors may keep it as their own. The latter will hardly be contended for, and the former, though not quite so absurd, would violate the apparent intention of the will almost as palpably.

It is, to be sure, the general rule, that a legacy carries no interest until the time it becomes payable by the terms of the bequest. But when were these legacies payable ? The plaintiffs in error say, when the legatees became of age; but this, we think, is a mistake. They were payable upon the death or marriage of the widow. If she had lived unmarried for fifty years they could not have been demanded. -As she was married while the legatees were in their minority the legacies were payable then, not into the hands of the legatees themselves, for the testator knew that an infant was not to be trusted with his own money. He provided for the contingency which has occurred, by directing his executors to take charge of it for his nephews, until they should be sui juris. The executors'held it in trust for the legatees, had it in charge to make the best of it, and were bound to account for the profits. Their •relation to the legatees was, to all ordinary intents and purposes, that of testamentary guardians.

There is a provision in the will, that if either of the legatees should not be of sober and steady habits, in the opinion of the executors, the share given to him should be divided among the other children of the same family. This is relied on as proving that interest ought not to be allowed, because it shows that the rights of the legatees could not be finally settled and determined until they came of age. But this argument will make no impression upon any one who reflects that the executors were charged with the money in trust for all the legatees who were sober and steady, and in case of one or more becoming intemperate, then the trust was to be executed precisely in the same way, only in favor of another cestui que trust, substituted in the place of the first one. At the death of the widow, the property was to be divided into shares corresponding in number with the legatees. These shares were to be placed in the hands and under the charge of the executors, whose duty it thus became to invest them carefully, and pay principal and interest to each legatee as he came of age, if sober; and if not, to put the other persons designated in his place. The duty of the executors to make interest on the money is not diminished by this provision, and their right to appropriate the interest, when made, to their own use, is not increased.

On the whole, we consider the charge delivered by the Court below perfectly right in all its parts.

Judgment affirmed.