author: Peters, Justice. Washington, Justice.

text:
    *OCTOBER TERM, 1806.
    Present — Washington, Justice, and Peters, District Judge.
    United States v. James McGill.

      Murder on the high seas.

    2!o constitute the crime of murder on the high seas, the mortal stroke must be given, and the death happen, on the high seas: the defendant had given a mortal stroke to one, in the haven of Cape Erangois, but the deceased did not die, until his removal on shore: Held, that the offence was not cognisable under the 8th section of the act of congress of the 30th April 1790.

    This was an indictment for the murder of Richard Budden, containing three counts. 1st. Charging the murder to have been committed on the high seas. 2d. Charging it to have been committed in the haven of Cape Francois. 3d. Charging the mortal stroke to have been given on the high seas, and the death to have happened, on shore, at Cape Frangois.
    The indictment was founded on the 8th section of the penal law (1 U. S. Stat. 113), which provides “ that if any person or persons shall commit, apon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder, &c., every such offender shall be deemed, taken and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death.”
    Upon the evidence, it appeared, that the prisoner was mate of the brig Rover-, of which Richard Budden, the deceased, was master; that on the 3d of May 1806, while the brig lay in the harbor of Cape Frangois, the prisoner gave the deceased a mortal stroke, with a pieee of wood; that the deceased, languishing with the wound, was taken on shore, alive, the next morning : and that he died the day subsequent to that on which he was taken on shore.
    After a defence on the merits, the prisoner’s counsel (Ingersoll and Joseph Reed) objected,
    in point of law, that the death, as *well as the r* mortal blow, were necessary to constitute murder; and that both *- the death and the blow must happen on the high seas, to give jurisdiction to this court, under the terms of the act of congress. These positions were elaborately argued; and the following authorities were cited in support of them. 1 Hale 425-6; 4 Co. 42-6; 2 Hale 188; 3 Hawk. 188, 333; Plowd.; 1 Hale 427; Leach C. L. 723; 4 Bl. Com. 303; 2 Co. 93; 2 Inst; 1 Hawk. 187; East’s C. L. 365; 1 Leon. 270; Cro. Eliz. 196; Leach’s C. L. 432.
    The Attorney of the District premised,
    that he was aware of this objection to the .jurisdiction; but as there was no judicial decision upon it, he thought it a duty to bring it before the court, for an authoritative opinion; and with that view alone, he meant to submit all the ideas which he could suggest, in maintenance of the jurisdiction. He then considered the case:
    1st. On the constitution and laws of the United States, which provide for the definition and punishment of felonies and murders on the high seas; Const, art. I. § 8 (1 U. S. Stat. 113, § 8), which provide for the locality of the commission of the offence, to vest a federal jurisdiction (§ 38); which provide for the place and tribunal of trial (Const, art. III. § 2; 1 U. S. Stat. 88, § 29; Ibid. 113, § 8; Ibid. 76, § 9, 11), which provide as to the manner of trial (Const, art. III. § 2; 1 U. S. Stat. 88, § 29), and which provide, generally, that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. Thus, for every crime, whether of common-law or admiralty jurisdiction, a common-law trial is provided by jury, and a place of venue prescribed; but two things are to be remarked; 1st. That there is no definition of the offence of murder (for instance), with a reference to the common law, any more than to the civil law, which is the law of the admiralty. 2d. That locality, as to the commission of a crime, is no further limited, than as it respects the high seas, or is out of the jurisdiction of any particular state.
    2d. On the law of England. The case would be within the constable and marshal’s jurisdiction, at civil law, if the blow and death were both in a foreign country; or the blow in a foreign country, and the death in England (13 Ric. II., c. 2; 3 Inst. 48; 1 Woodes. 139; 4 Bl. Com. 268). If the blow was on sea, and the death on land, neither the common law nor the admiralty have jurisdiction; nop is it a case under the statute of 28 Hen. VIII, “ for the murder was not committed on the sea; ” but the constable and marshal may try it, by 13 Ric. II. Offences committed upon the seas, or in any haven, river or creek, are triable by jury, in a county to be mentioned in a commission, issued under 27 Hen. VIII., c. 4; 28 Hen. VIII., c. 15. The 33 Hen. VIII., c. 33, provides that “persons, who have been examined before the king’s council upon treasons, murders, &c., may % i be tried in any shire to be named *in a commission,” in whatever -* shire or place, within the king’s dominions or without, such offence was committed. The 35 Hen. VIII., c. 2, provides for the trial of treasons, committed out of the realm, by a jury, in the king’s bench, or before commissioners. The 11 & 12 Wm. III. provides for the trial of offences in the colonies. The 2 Geo. II., c. 21, provides for the trial of a murder, where the mortal blow is given on the sea, or out of England, and the death happens in England; or where the blow is given in England, and the death happens abroad. Then, the only statute that provides for the case of the mortal blow and the death both happening abroad, is the 33 Hen. VHI., c. 23, under the modification of a previous examination, &c., before the king’s council: and in England, the admiral’s civil-law jurisdiction, in criminal cases, is at an end.
    3d. On the civil law. The judicial power .of the United States extending to all cases of admiralty and maritime jurisdiction, ex vi termini, embraces criminal as well as civil cases; and the civil law being the law in such cases, it is to be considered, what the civil law defines to be murder, as to the act and the place. The intent, not the event, constitutes the crime. (Dig. ad Leg. Corn. 1. 14 ; Dom. 211.) The crime is committed, if there be the will to commit it. (Ibid.) In France, where the criminal law is founded on the civil law, if a man strikes another, with intent to kill him, he is punished with death, though the man is not killed. (1 Denizart 585.) The doctrine of all the cases cited for the prisoner, which requires the stroke and the death to be in the same county, or within the same jurisdiction, is an incident to the common-law trial by jury ; where the jury of the vicinage are supposed to know the fact of their own knowledge ; but it clearly has no application, in cases where the jury does not come at all from the place, where any part of the crime was committed. Gessanteratione, cessat et ipsa lex. The civil law being considered, therefore, as the law of the admiralty, remains under the general delegation of judicial power to the courts of the United States, unless it is expressly modified by statute. So far as respects the definition of murder, it has not been modified ; but the constitution and acts of congress do provide, that all crimes, wherever committed, shall be tried by jury ; and that crimes committed on the high seas, shall be tried in the district where the offender is apprehended, or into which he may first be *429] brought. (1 U. S. Stat. 113, § 8.)  If, indeed, this reasoning fails, *jt may be doubted,, whether even congress can amend the law, so as to reach cases like the one under consideration, notwithstanding the power “ to define and punish piracies and felonies committed on the high seas Const, art. I., § 8, since the crime of murder (adopting the common-law definition) must be consummate, in the mortal act and consequence, within the jurisdiction of the United States.

         s. c. 1 W. C. C. 463.

       It was decided by the circuit court for the District of Columbia, in 1809, in the case of United States v. Bladen, 1 Cr. C. C. 548, that where a mortal blow is given within the district, and death ensues in another jurisdiction the courts of the district have no power to entertain an indictment for murder. And the same point was decided in United States v. Rolla, 2 Am. L. J. 138. See also, United States v. Armstrong, 2 Curt. 446. But in Guiteau v. United States, 26 Alb. L. J. 89, the supreme court of the district arrived at an opposite conclusion, and the prisoner was executed, without being allowed an opportunity for a review of the conflicting cases. It is much to be feared, that the enormity of the crime, and the popular clamor for the infliction of the death penalty, had great influence in the denial of such review. That the decision of a subordinate court, upon the question of its own jurisdiction, in a case involving the life of a citizen, and overruling two former decisions of the court of which it is the successor, should not be reviewed by the court of last resort, is unheard of, in the annals of jurisprudence. The execution of a prisoner under the sentence of a court, without jurisdiction to pronounce it, is but a judicial murder. Such was the case of Mrs. Surratt, who was executed under the sentence of a military commission, which was subsequently decided by the supreme court, to have been without jurisdiction to try the case. Ex parte Milligan, 3 Wall. 2, 118, et seq. In Guiieau’s case, the court sustained the jurisdiction, principally, on the ground, that the British statute of 2 Geo. II., e. 21, was in force in that part of the district ceded by the state of Maryland ; and Judge Bradley, of the supreme court, refused an application for a writ of habeas corpus, to review the question of jurisdiction, on the same ground; holding, that no such question arose in the cases of McGill, Armstrong or Bladen, the latter having arisen in the portion of the district ceded by Virginia, in which the 2 Geo. II., c. 21, was, confessedly, not in force; and the court below, on examination of the record in Rolla’s case, held, that the question of jurisdiction could not have arisen and been decided. The fact, however, still remains unanswered, that an important question of jurisdiction, in a capital case, arose, and that a review of it in the court of last resort was denied. Guiteau’s crime was a terrible one; he, tmdoubtedlv, labored under an insane delusion, but not to the extent of legal irresponsibility; he richly deserved his fate; but the American people could have afforded to await the decision of the court of dernier resort upon the important question of jurisdiction, which Judge Bradley admitted was in his favor, on com. mon-law principles. The rules for determining whether a British statute, passed since the settlement of the American colonies, extends to those colonies, are stated in Mr. Wharton’s note to 1 Dali. 1. They hardly seem to embrace the case of Guiteau; at all events, they raise a serious question of jurisdiction.

         After the death of Capt. Budden, McGill had been sent on board "the Mediator, an armed vessel, there put in irons, and carried to Baltimore, from which place (without any arrest, or process issuing against him), he voluntarily came to Philadelphia; and surrendered himself for trial to a magistrate. The attorney of the district suggested, that, having been first brought into the district of Maryland, his trial must be there. But, after argument, Judge Peteks decided, that the provisions of the act were in the alternative; and that McGill, being first apprehended in Pennsylvania, might be tried, and ought to be tried, here.

   Peters, Justice.

— It is a general rule with me, to abstain from the exercise of jurisdiction, whenever I doubt my authority to exercise it. On the present occasion, it is not necessary to give an opinion, whether the present is a case of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law ; for, confining myself to the 8th section of the penal act, I find sufficient to decide, that, at all events, it is not a case within the jurisdiction of this court. The court' can only take cognisance of a murder committed on the high seas ; and as murder consists in both the stroke and the consequent death, both parts of the crime must happen on the high seas, to give jurisdiction ; not one part on the high seas, and another part in a foreign country.

Washington, Justice.

— The point principally argued by the prisoner’s counsel is so clear, that it can receive little elucidation from argument. The offence, of which we have cognisance, is murder, committed on the high seas. Now, murder is a technical term, of known and settled meaning ; and when used by the legislature, it imports the same, as if they had said, that the court shall have jurisdiction, in a case of felonious killing upon the high seas. We have no doubt, therefore, that the death, as well as the mortal stroke, must happen on the high seas, to constitute a murder there.

But the more important question is, whether the present case remains unprovided for by the laws of the United States ? The judicial act gives jurisdiction to the circuit court, of all crimes and offences, cognisable under the authority of the United States.” (1 U. S. Stat. 18, § 11.) There are, undoubtedly, in my opinion, many crimes and offences against the authority of the United States, which have not been specially defined by law ; for I have often decided, that the federal courts have a common-law jurisdiction in criminal cases: and in order to ascertain the authority of the United States, independently of acts of congress, against which crimes may be committed, we have been properly referred to the constitutional provision, that “the judicial power shall extend to all cases of admiralty and maritime jurisdiction.” But still the question recurs, is this a case of admiralty and maritime jurisdiction, within the meaning of the constitution ? The words of the constitution must be taken to *refer to. the admiralty and maritime jurisdiction of England (from whose code and practice we f derive our systems of jurisprudence, and generally speaking, obtain the best glossary), but no case, no authority, has been produced to show, that, in England, such a prosecution would be sustained (independent of acts of parliament) as a cause of admiralty and maritime jurisdiction. Nor, am I disposed to consider the doctrine of the civil law, which has been mentioned, as furnishing a guide, to escape from the silence of our own code, as well as of the English code, upon the subject. Upon the whole, therefore, I am of opinion, that the present is a case omitted in the law ; and that the indictment cannot be sustained. It is some relief to my mind, however, that I have no doubt of the power of congress to provide for such a case. It is true, that it would be inconsistent with common-law notions to call it murder ; but congress, exercising the constitutional power to define felonies on the high seas, may certainly provide, that a mortal stroke on the high seas, wherever the death may happen, shall be adjudged to be a felony.

Upon this charge, the jury immediately acquitted the prisoner.

         See act 3d March 1825, 4 U. S. Stat. 115 (R. S. § 5339); which, however, has no application where the crime only amounts to manslaughter. United States v. Armstrong, 2 Curt. 446.


source: Caselaw Access Project

license: Public Domain

text:
    Snell et al. v. Delaware Insurance Company.

      Measwre of damages. — Evidence of vaJ/ue.

    On an open policy of insurance, the assured is entitled to recover according to the actual value of the vessel, at the time she was insured, and not according to her prime cost.
    Evidence of prime cost is admissible, to show her real value, but it is not conclusive against the assured.
    Covenant, on an open policy for $2500, at a premium of ten per cent., upon the brig Hound, on a voyage from Jamaica to New York.-
    The facts were these : the brig and cargo, belonging to the plaintiffs, sailed on a voyage from New York to Curajoa, and back again ; but, upon the return voyage, she was captured by a British cruiser, and carried into Jamaica, where vessel and cargo wore libelled and condemned, on the 31st of July 1804, for a breach of blockade. The master, conceiving that the vessel would be sold, under her value, requested MessrsfCampbell & O’Hara, of Kingston, to buy her in for the owners, which was accordingly done, at the price of 1020?., equal to about $3500. For the price of the vessel, amount of repairs, outfits, &c. (in the whole 1939?. 4s. 11c?.), advanced by Campbell & O’Hara, those gentlemen took from the master an hypothecation of the vessel, to guaranty the payment of a bill of exchange, which he drew upon the owners: and on the 9th of August 1804, they requested Messrs. Savage & Dugan to procure insurance upon the vessel for $5000 ; which was effected at the office of the Phoenix Insurance Company, upon the following instructions :

      *“ Brig Hound, Thomas W. Fuller, master, at and from Jamaica to New York. We expect she sailed on or about 16th ult., and is represented as a fine coppered vessel: 5000 dollars. Said vessel was condemned at Jamaica and purchased for the former owners. This insurance was made to cover the sums advanced, whether the same be secured by a bottomry-bond or conditional assignment or otherwise howsoever. Premium five per cent.

      “ Phoenix Insurance Company.”
    The owners of the vessel being advised of these proceedings, stated to Savage & Dugan, that the above insurance was not sufficient to cover her real value, and directed a further insurance for $2500, which was effected by the present policy. The vessel sailed from Jamaica, in August 1804; but was never heard of afterwards. At the expiration of a year, the Phoenix Insurance Company paid the amount of their subscription; but the defendants refused payment, on which this suit was instituted.
    At the trial of the cause, the only disputed question was, whether the plaintiffs could go into evidence to prove the actual value of the vessel insured ; or were bound by the price which was paid for her under the condemnation, at Jamaica? On the first ground, the sums insured upon both policies, would be about the value ; and on the second ground, the amount received from the Phoenix Insurance Company, would be about sufficient to cover the loss.

      Dallas, for the plaintiffs,
    maintained the first ground, and cited, 2 Marsh. 529, 534, 535; Park 282, 287; 1 Emerig. 263; Val. art. 8, p. 64, 56, 136; Mill. 247, 251, 264; 1 Caines 573; 2 Ibid. 20, 23.

      Rawle and Condy, for the defendants,
    urged, that the plaintiffs had no right to insure more than the vessel cost them at Jamaica; that the court ought not to direct the jury to - inquire into the value there, beyond the cost; and that the plaintiffs, having recovered the original value from the underwriters, upon the voyage to Curagoa, had no right to resort to that criterion of value on the present occasion. But—

      5) s. c. 1 W. C. C. 509.

         It appeared in evidence, that the vessel was built in 1802, when she cost $8500; that when she sailed from New York, in May 1804, she was worth between $7000 and $7500; that she was insured on the voyage to Curagoa, in a valued policy, at $7000; and that she had been completely repaired at Jamaica.

   The Court were clearly of opinion, that the plaintiffs were entitled to prove and to recover the actual value of the vessel, at the time she was insured. They said, a contrary rule would operate as injuriously to the underwriters, as to the merchant. For, if the merchant could not insure a ship or goods, bought at a depreciated ‘•'price, under a forced sale, at their real value ; neither would the underwriter, in a case of *- loss, be entitled to show, upon an open policy, the actual value of the property, independent of a fortuitous enhancement of the price in -a foreign market.

The jury found a verdict for the plaintiffs, for $2378.32, taking, it is presumed, the value in the outward policy as the basis of their calculation.

       “ As to the rule of ascertaining the value of a ship, it is agreed on all hands, that the sum she was worth, at the time of her departure, including certain expenses, is to govern, and the court can perceive no reason for establishing this rule, which does not apply to tne case of goods:” per Washington, J., Carson v. Marine Ins. Co., 2 W. C. C. 472.


author: Tilghman, C. J.

text:
    DECEMBER. TERM, 1806.
    Present — Tilghman, C. J., and Smith and Braokenridge, Justices.
    Lyle v. Baker et al.

      Removal of cause.

    Under the 20th section of the act of assembly of the 24th February 1806, an action may be removed from a court of common pleas to the supreme court, on or before the first day of the term, next after that to which the original writ is returnable.
    This action was instituted in tbe Common Pleas of Philadelphia county, at September term 1806; and a habeas corpus was taken out by the defendants, on the 1st of December following, to remove it into the supreme court. Todd, for the plaintiff, alleged that the habeas corpus had issued too late, and moved for a procedendo, on the 20th section of the act of the 24th of February 1806 (P. L. 342) which provides, “that no action shall be removed from any of the courts of common- pleas, to the supreme or circuit courts, by consent or otherwise, unless the same is removed on or before the first day of the next term, after the said action shall have been commenced.”
    After argument in a full court (but Judge Ye ates being now absent, owing to indisposition), the Chief Justice, on the 17th of January 1807,-de-livered the following unanimous opinion.
   Tilghman, C. J.

— The case turns entirely upon the construction of the 20th section of the act, “ to alter the judiciary system of this commonwealth.” Where the intention of the legislature is clearly expressed, it must prevail, whatever may be the consequences. But in the endeavor to discover the legislative intention, we must so construe the law, as not to reject any of its *words : and if there appears to be a contradiction in r* . the expressions, we must seek and pursue, upon the whole, the prevailing object and intent of the law. Viewing, then, all the parts of the section under consideration, I am of opinion, that an action may be removed to the supreme court, at any time before or on the first day of the term succeeding that to which the original writ is returned. The expression, “ first day of the next term, after the action shall have been commenced,” taken by itself, would certainly limit the removal to the first day of the first term: but other expressions (I mean, particularly, the words, “ on or before ”) must also be considered ; and they cannot be satisfied, if the right of removal is restricted to the first day of the first term. It is impossible to remove an action, before the first day of the term to which the writ is returnable ; as the writ of removal is directed to the court in which the action is brought;, and the court can have no knowledge of the action, until its session, at the term next succeeding its commencement.

On this view of the subject, we are of opinion, that the intention of the legislature cannot be carried into effect, without so construing the act, as to admit of the removal of an action, on or before the first day of the term next after that to which the original writ is returnable.

Procedendo refused.


text:
    Ozeas v. Johnson, administrator of Foulke.

      Partnership.

    One partner cannot maintain assumpsit against the other, to recover the balance of the proceeds of a partnership adventure, unless the partners have settled their account and struck the balance.
    Case for money had and received, &c. The plaintiff and Foulke, the intestate, had been jointly concerned in a mercantile adventure from Philadelphia to New Orleans ; but there was no evidence at the trial, that they had ever settled their accounts ; and this action was brought to recover a balance claimed by the plaintiff. The jury, accordingly, gave a verdict in his favor for §320, subject to the opinion of the court, on a point reserved ; to wit, whether the plaintiff, being a partner of Foulke’s, and equally concerned in the adventure, could recover in the present form of action ?
    On arguing the point reserved, S. Levy, for the plaintiff,
    urged that the action of account-render was almost obsolete : that the action for money had and received was in nature of a bill in equity ; that having no distinct- court of equity, equity had become, in effect, a part of the common law of Pennsylvania, administered through her common-law courts ; and that the sense of the legislature, on the subject, was manifested in the 6th section of the act of the 1st of March 1806 (P. L. 562), which provides, “that in all cases where any suit has been brought in any court of record within this common-*4351 tbe same shall *not be set aside for informality, if it appear, that the process has issued in the name of the commonwealth, against the defendant, for moneys owing or due, &c.” (Wats. on Part. 221; 2 Ves. 239; 1 Bac. Abr. 31, 36, 37; Cowp. 795; 1 Dall. 428, 211.)

      Hopkinson, for the defendant,
    admitted, that if a partnership is dissolved, and the partnership accounts settled, the creditor partner may bring an action on the case for the balance (Wats, on Part. 221, 226); but he contended, that as this was the case of a special partnership, in which no account of the joint adventure had been settled, an action of assumpsit could ncit be sustained. (Wats. 116; 2 T. R. 476, 478, 479, 483; 2 Caines 293, 296; Lamalere v. Caze, in the circuit court of the United States, 1 W. C. C. 435.)

         s. c. 1 Binn. 191.

   The opinion of the court was delivered by the Chief Justice, on the 1st of January 1807, who, Laving stated the facts and point reserved, proceeded as follows:

Tilghman, C. J.

— It was my wish to support the action, if possible ; because the jury have decided on the merits of the cause. But upon a deliberate consideration of the nature of the action, and .the.authorities which have been cited, I am convinced, that the plaintiff cannot recover. Money received by one partner, during the partnership, is not received for the use of either, but for the use of both the partners. All that either partner is entitled to, is a moiety of what remains, after all the partnership debts are paid ; and the proper remedy for one partner against the other, to obtain a settlement and payment, is an action of account-render. In short, no case has been cited by the plaintiff’s counsel, to show that an action like the present can be maintained, unless the partners have settled their account and struck the balance.

It is, then, of importance to the administration of justice, that the forms of action, which originate in good sense and public convenience, should not be confounded. The defendant has a right and an interest, to insist upon the preservation of the proper form of action, to enforce his partnership contract against him, of which this court possesses no power to deprive' him. It is, indeed, most convenient, that partnership accounts should be settled before auditors. It would often be extremely difficult, sometimes it would be impracticable, to settle them by a jury. For these reasons, we think, that plaintiff cannot maintain the present action.

         An actual settlement must be made and a balance struck, by the act of both parties, before either can be charged in an action of assumpsit. It is not sufficient, that the balance may be deduced from the partnership books. Andrews v. Allen, 9 S. & R. 241. Until a partnership is dissolved, the accounts of the partners liquidated, and a balance struck, one partner cannot sue another in an action Of indebitatus assumpsit. Lamalere v. Caze, 1 W. C. C. 435.

       One partner cannot l’ecover in assumpsit, against another, for advances, until a Settlement of the partnership accounts, without proof of an express promise to pay, though the partnership has ceased to exist. Leidy v. Messinger, 71 Penn. St. 177. And assumpsit will not-lie by one partner, to recover from the other, a balance due upon the settlement of their partnership account, without proof of an express promise. Killam v. Preston, 4 W. & S. 14. Otherwise, if an account be stated and rendered, which is returned without objection, for upwards of a year. Preston v. Killam, 1 Am. L. J. 168. And see Patton v. Ash, 7 S. & R. 116; McFadden v. Hunt, 5 W. & S. 458; Roberts v. Fitler, 13 Penn. St. 265; Ferguson v. Wright, 61 Id. 258. The law is otherwise, where there is a partnership, as to a single transaction; in such case, a creditor partner will not be put to his action of account-render. Galbreath v. Moore, 2 Watts 86; Wright v. Cumsty, 41 Penn. St. 102; Finlay v. Stewart, 56 Id. 183; Meason v. Kaine, 61 Id. 335; Cleveland v Farrar, 4 Brewst. 27.


author: Tilghman, Chief Justice. Smith, Justice. Brackenridge, Justice.

text:
    *Bender v. Fromberger.

      Covenant. — Pleading.—Damages.
    In an action of covenant, it is sufficient to assign the breach, in termj as general as those in which the covenant is expressed.
    The breach assigned was, that the defendant was not seised of a good estate in fee, &c.; and the defendant pleaded non infregit conventionem, and performance, with leave, &c., upon which issues were joined: held, that they were sufficient for the court to enter judgment upon.
    A covenant that one is seised of an indefeasible estate in fee, may be broken, without an eviction.
    A special warranty in a deed, has not the effect of controlling a precedent general covenant.
    The covenantee of title cannot recover the value of improvements made by him, after his purchase from the covenantor.

    Covenant. On the trial of the cause, in March term, 1806, it appeared, that the defendant and his wife had sold and conveyed a tract of land to the plaintiff for $2390, by deed, dated the 8th of September 1797; and had therein covenanted that the defendant was lawfully seised of a good, sure and indefeasible estate of inheritance, in fee-simple, in the said land, and had good right, full power and authority, in his own right, to grant and convey the same to .the plaintiff in fee. The deed, also contained a special warranty against the grantor and his heirs, and all persons claiming under them. Bender took possession of the premises and made considerable improvements, as well in fences and buildings, as in the cultivation of the soil; so that the property was valued, in May 1802, at $5000. An ejectment was brought, however, at the suit of Benjamin Hilton against Bender, in the circuit court of the United States ; and after a trial, verdict and judgment for the plaintiff, an hab. fac. possess, issued, returnable to May term 1802, upon which the possession was delivered, on the 4th of February 1802.
    Bender then instituted the present suit, in which the declaration stated the covenant that the defendant was seised of an indefeasible estate in fee-simple, and that he had a good right • to convey the same to the plaintiff ; and assigned as a breach, that the defendant was not so seised, nor had he good x-ight to convey the said land in fee to the plaintiff: profert of the deed was made, but oyer was not demanded. The defendant pleaded non infregit conventionem, on which issue was joined ; and also performance, with leave, Sec., to which the plaintiff replied, generally, non-performance, and issue w as thereupon joined. At the trial of the cause, in March term 1806, upon the recommendation of the court, and with the consent of the parties, a vei-dict was taken in these terms : “ The jury find for the plaintiff $6232.50 : but if the court shall be of opinion, that the plaintiff is not entitled to recover the value of the improvements made by him, after he purchased of the defendants, then they find damages $2979.14, and six cents costs.”

      *Before the argument on the point which the' jury had thus submitted to the court, a motion was made in arrest of judgment, on the following grounds : 1st. That the declaration was vicious, inasmuch as it did not assign a legal breach of the covenant. 2d. That there was not, in any part of the pleadings, sufficient matter, for the court to render judgment in favor of the plaintiff. 3d. That it is apparent on the record, that the plaintiff has no cause of action.
    In support of these objections, it was argued, for the defendant: 1st. That the declaration does not aver that the recovery in Hilton’s Lessee v. Bender was upon a title paramount. (Freem. 122; Hob. 12; 4 Co. 80; Cro. Jac. 674-5; Hob. 34; Cas. temp. Hardw. 271; Cro. Eliz. 917; Cro. Jac. 315; Cro. Eliz. 823; Cro. Car. 5; Vaugh. 118; 2 Vent. 61; Cro. Jac. 444; 1 Mod. 292; 1 Lev. 301; 3 Mod. 135; 3 T. R. 584.) 2d. That although the modern authorities admit, that it is sufficient, if the breach is assigned in the same general words as the covenant; yet, in that case, it is necessary, that the replication should be more specific and particular. (Cro. Eliz. 544; Cro. Jac. 171 ; 4 T. R. 620.) For non infregit conventionem is no plea, unless the breach is assigned affirmatively. (Co. Litt. 303-6.) And it is a rule in pleading, that you cannot go to issue on a general averment of performance. (3 Woodes. 93; Cowp. 578.) 3d. That the declaration contains a proferí of the deed; and according to the practice of Pennsylvania, oyer must be presumed, *which spreads the deed upon the p^gg record. Then, as it will appear, that the deed contains a special *- warranty, in the conclusion, the antecedent express covenant that the grantor was seised of an indefeasible estate, &c., is thereby restrained and controlled. (3 Lev. 46; 1 Ibid. 57; Rep. temp. Finch 96; 2 Bos. & Pul. 13; 3 Ibid. 565, 573.) Thus, independent of general authorities, the words “ grant, bargain and sell,” which, by themselves, are declared in an act of assembly, to import a general warranty, have always been considered as qualified and limited, if the deed contains a subsequent special warranty. (1 Dall. Laws, 109.) And on this construction of the deed, the plaintiff had no cause of action, when the suit was instituted.
    For the plaintiff,

    it was answered: 1st. That the declaration is correct, in technical form ; for, in covenant, the breach may be assigned in as geni eral words, as the covenant. (6 Vin. 421, pl. 2; 9 Co. 60; Cro. Jac. 304; 6 Vin. 424, pl. 3; 2 Show. 460; Sir T. Raym. 14; Cro. Jac. 369; 2 Bac. Abr. 84; 6 Vin. Abr. 422, pl. 1; Hob. 12; 2 Bos. & Pul. 14, in note; 3 Woodes. 92; 5 Bac. 58; 60.) 2d. That the cases cited for the defendant arose upon a covenant for quiet enjoyment, which cannot be broken without an actual eviction ; but a covenant of title may be broken without eviction, upon proof that the grantor had not an estate in fee ; and in an action for the breach, it is neither necessary to allege nor to prove an eviction. 3d. That the declaration as signs the breach on the first covenant only ; and as oyer was never prayed, the second covenant is not even before the court. (2 Saund. 228; 1 Ibid. 233; 1 Lev. 88; 1 Saund. 9, 307; 1 T. R. 149; 1 Str. 227.) Besides, the covenants, though they cannot be regarded as one (which was the case in 2 Bos. & Pul. 13), are neither .inconsistent nor contradictory : the one being a covenant, that the grantor has a good estate ; the other being a covenant of warranty ; the latter is introduced into deeds by the scrivener, of course ; but the former is only inserted upon the agreement and instruction of parties. A special covenant in fact, may restrain an implied covenant; but here are two express covenants, which may operate together ; and each should be construed most strongly against the grantor. (2 Keb. 10, 15; 1 Sid. 289; 1 Lev. 183; 1 Sid. 215.)

         At the trial of the cause, a question of some importance occurred. The defendant claimed under a sale, by the commonwealth, of the premises, as the forfeited estate of Joseph Griswold, who, it was alleged, had been attainted, by proclamation, during the revolutionary wax-. His counsel, with a view to maintain the validity of his title, offered to read the proclamation in evidence. The opposite counsel proved, that the defendant had due notice of Hilton’s ejectment; took part in preparing evidence for the trial; and had, in fact, acceded to a settlement, in consequence of the eviction ; and they contended, therefore, that the verdict in that ejectment was conclusive to establish a defect of title. After argument (in which the plaintiff’s counsel cited, Cro. Jac. 304; Sid. 289; 2 Show. 460; Bradshaw’s case, 9 Co. 60; and the defendant’s counsel cited, 1 Str 400; 2 Roll. Rep. 6, 28, 287; 8 T. R. 278), the chief justice delivered the unanimous opinion of the court:
      T>lghman, Chief Justice. — Some difficulty has occurred in deciding this point; but the court have formed an unanimous opinion, that the evidence offered by the defendant, to prove that he had a good title to the land in question, is inadmissible. The title has been already decided in an ejectment, the only mode in which title to land can be directly decided; and of that ejectment, the defendant had full notice. If the defendant should now be permitted to give his title in evidence; and the jury should find a verdict in favor of it, the plaintiff’s remedy by action of covenant on the deed, would be gone; and if his title should ultimately fail, on the trial of another ejectment, to be brought by him, he would lose both land and money. But on the other hand, if the plaintiff' recovers in the present suit, it is in our power, by imposing terms upon him, to do justice to the defendant. Indeed, the plaintiff has made our interference unnecessary, by a voluntary offer to execute a conveyance to the defendant of all his right, upon receiving the damages awarded by the jury. He was not obliged (as the defendant’s counsel allege) to tender this conveyance, before he brought the suit; it is sufficient, if the conveyance is executed, when the defendant pays the damages.
      Wo do not decide, whether the defendant might have gone into evidence of the title, if he had given notice to the plaintiff, immediately after Hilton’s recovery, that he was dissatisfied with the verdict, and meant, at his own expense, to prosecute an ejectment against Hilton, to try the question a second time. But, so far from pursuing this course, the defendant’s conduct has shown an acquiescence in the verdict and judgment which Hilton obtained.

       s. p. Brown v. Dickerson, 12 Penn. St. 372; Cox v. Henry, 32 Id. 18; Terry v. Drabenstadt, 68 Id. 400. And see Lanigan v. Kille, 97 Id 120.

   The chief justice, after stating the pleadings, and the reasons assigned in arrest of judgment; delivered the opinion of the court, in the following terms :

Tilghman, Chief Justice.

— As to the first point, although it was opened by the defendant’s counsel, yet, I think, in the course of the argument, it was nearly abandoned. It certainly has not been supported ; for many cases have been produced, proving that it is sufficient to assign the breach in terms as general as those in which the covenant is expressed ; and more *4391 *kan one *0^ those cases were upon the very same kind of covenants -1 as the one now in question.

The second point amounts, in substance, to this, that the issues were altogether immaterial. It is an undoubted principle, that verdicts, after a trial of the merits of a cause, are, if possible, to be supported. For this reason, many things are good after verdict, which would be bad, on demurrer. Many things, not alleged in the pleadings, may be presumed to have been proved on the trial; because, unless they had been proved, the jury could not, properly, have given a verdict in- the manner they did. One ox the authorities cited by the plaintiff’s counsel, went to the point; that, upon a breach assigned, that the defendant was not seised of a good estate in fee, &c., to which the defendant pleaded non infregit conventionem, and thereupon issue was joined, the issue, though informal, was sufficient for the court to entér judgment on. Now, this is the very same issue as one of those joined in this cause.

But let us consider the other issue, joined on the plea of performance, with leave, &e. This kind of plea is peculiar to Pennsylvania, and is unknown in England. It was invented, to save the trouble of special pleading, and has been sanctioned by too long a practice, to be now shaken. In fact, it gives the defendant every advantage which he could derive from special pleading, and saves all the labor and danger: for upon notice to the plaintiff, without form, he may give anything in evidence which he might have pleaded. A great number of issues, in actions of covenant, have been joined precisely as this is ; and if this judgment may be arrested, on account of the immateriality of the issue, all judgments founded on similar issues, are liable to be reversed, on writs of error. In considering the present motion, the court know nothing but what appears on the record. Now, how can they say, that an issue is immaterial, in which the defendant might, for aught that appears, have given evidence of all those special matters,. on which the merits of his defence rested.

The defendant has contended, that it ought to have appeared, either in the plea or the replication, that the plaintiff had been evicted. But it is to be observed, that if the cases cited by him are examined, they will be found to be most, if not all, of them, on covenants for quiet enjoyment where the covenant was not broken, without an eviction by better title. But a covenant that one is seised of an indefeasible estate in fee, may be broken without an eviction ; and in such case, the jury will give such damages as they think propei’. Upon the whole, I am clearly of opinion, that this issue is not immaterial.

I will now consider the defendant’s third point, which is, that it appears, by the record, that' the plaintiff has no cause of action. *The defend- r,¡.,, ant’s argument is founded on this — that the plaintiff, by making a L profert of the deed, has brought its whole contents before the court ; that part of its contents is a clause of special warranty, by which they say, the general covenant on which the plaintiff has declared, is qualified and restrained ; and of course, that the plaintiff has no cause of action, because, the defendant only warranted against himself, and those who should claim under him. To this, it has been answered, by the plaintiff’s counsel, and, I think, truly, that, oyer not having been prayed, no part of the deed appears to the court, but that which the plaintiff has declared on ; and consequently, the court can take no notice of the special warranty. But I think it best to deliver my opinion on the effect of the special warranty, that the defendant may not be disquieted, by supposing that he had a good defence, which he has lost the advantage of by a slip of his counsel. I subscribe to the principle laid down by Lord Eldon, in the case of Browning v. Wright (2 Bos. & Pul. 14), cited on the part of the defendant, that where it manifestly appears, from a consideration of every part of the deed, that no more than a special warranty was intended, it shall be so construed, although the deed, in one part, contains words of covenant of more general import. To this rule, I add the two following ones: that, in construing a deed, no part shall be rejected, unless it produces contradiction or absurdity ; and that, in doubtful oases, a deed is to be construed in favor of the grantee. The deed in question conta. ns a conveyance by the words grant, bargain and sell; a covenant that the grantor is seised of a good estate in fee-simple, subject to no incumbrances, but a certain ground-rent; and a covenant of special warranty.

It has been the prevailing opinion, that by virtue of an act of assembly, passed in the year 1715 (1 Dall. Laws, 109, § 6), the words “grant, bargain and sell,” have the force of a general warranty, unless restrained by subsequent expressions. To qualify the general warranty, it has been the custom of scriveners, to insert a clause of special warranty. And, I believe, it is inserted, pretty much as a matter of course, unless in cases where the parties agree on a general warranty. I believe too, that in Pennsylvania the greater part of conveyances have, as Mr. Ingersoll has stated, been made with special warranty. Still, it remains to be considered, what was the intent of the grantor, in the present instance ? The defendant contends, that his intent was, to give no more than a special warranty, because the clause of special warranty is inconsistent with and contradictory to a general warranty. Now, in this, I cannot agree with him. It is certain, that the special warranty and more, is included in the general one. It is an inaccurate mode of conveyancing ; but there is no absurdity or contradiction in making one *4411 covenant against yourself and your heirs, and another against all J *mankind. The special warranty was unnecessary, and is to be attributed to the ignorance of the scrivenei1, who, probably, thought it was a matter of course, without intending to affect the more general preceding covenant; or, perhaps, he might think it necessary to guard against the effect of tbe words “ grant, bargain and sell,” used in the first part of the deed; because the estate was subject to a ground-rent, as appears from the general covenant, in which it is said, that the estate is free from all incumbrances, except the said ground-rent. It has been urged, that it is all ope covenant, because the special warranty is connected with the preceding general covenant, by the words “ and that.” It is very common to connect a covenant of warranty and a covenant for further assurance by these expressions. But what I rely on, is, the intent of the parties, manifested in the deed, considered altogether. I do not conceive it is possible, for a man of common sense to declare, that he engages that he had a perfect estate in fee-simple, and had a good right to convey such perfect estate, without intending to warrant to a greater extent than against himself and his heirs. There are no technical expressions, but such as every man understands, which is not the case with a special warranty. To a common man, it is not very intelligible, that there should ever be occasion to warrant and defend against himself and all persons claiming under him ; for it is very natural to suppose, that when a man has used words sufficient to convey his estate to a third person, he has necessarily done enough to bar himself and all persons claiming under him, without calling in the aid of a special warranty. In short, the insertion of the clause of special warranty is generally the act of scriveners; but I presume, that no scrivener could be so stupid as to insert a covenant, that the grantor was seised of an indef easible estate in fee,” unless he had been told by the parties, that a general warranty was intended. I am, therefore, of opinion, that the special warranty in this deed, has not the effect of controlling the precedent general covenant, and that judgment should be entered for the plaintiff.

It is proper to add, that after the conclusion of the argument last night, I consulted with my brother Ye ates, who concurs with my opinion, both with respect to the pleadings and the construction of the deed.

Same Cause.

The case now came before the court, on the point submitted by the verdict ; and this turned upon the question, whether, in an action of covenant, founded upon a deed, in which the grantor covenants that he has a good title to the land conveyed, the grantee, being evicted, is entitled to recover the price of the premises, *at the date of the deed, or the improved r* value, at the time of the eviction ? L

For the plaintiff, it was contended, that the measure of damages on all covenants, is the amount of the loss actually sustained, and though it would seem from the old books, that, in cases of warranty, the recovery is to be according to the value of the land, at the time of the warranty ; it was a recovery, in those cases, of land only, and not (as in this case) of money for damages. This position was illustrated and supported by an elaborate argument, and these authorities: 2 Bl. Com. 299, 300, 304; 22 Vin. 145-6, “Vouchee;” 3 Bl. Com. 156; 1 Bac. Abr. 526; 3 Woodes. 91-2; 1 Ld. Raym. 107; 2 Ibid. 1126; T. Raym. 77; 30 Edw. III., 14, 6; 19 Hen: VI., 45-6; Ibid. 61; Sayer on Dam. 3, 4, 5, 6; 2 Caines 111; Bay 18, 263.

For the defendant, it was taken as conceded ground, that on a warranty, strictly speaking, the value of the land, at the date of the warranty, could alone be recovered, according to the law of England; and it was contended, that there was no legal or equitable distinction between that case and the general case of covenant, further than the enlargement of the remedy; which was limited by the former, to a recovery in land; but by the latter, the personal estate also becomes liable. 2 Bl. Com. 304; Godb. 152; 1 Johns. 379.

The opinion of the court, upon great consideration, was delivered, at an adjourned session, on the 17th of January 1807. The chief justice, after stating the facts, proceeded in the following terms :

Tilghman, Chief Justice. — The question submitted to us by the jury, has never been decided in this court. It is of importance, and has been well argued.

It may be taken for granted, that on a strict warranty, where the remedy for the party who loses the lands, is either by voucher, or writ of warrantia chartae, the recovery is only according to the value of the land, at the time the warranty was created. This is conceded by the plaintiff’s counsel, and very properly; for many authorities were cited directly to the point. But this kind of warranty, which is a covenant real, has long ceased, and has been succeeded by the covenants personal, introduced into modern conveyances. The latter have two advantages: the remedy by action of covenant is more easy in its form, and more comprehensive in its effects; for it extends to the personal property of the warrantor, in the hands of his executors; whereas, the ancient recovery in value, was confined to the land, I know of no case in England, where it has been decided, whether a recovery in an action of covenant, could be carried so far as to include damages for improvements made after the purchase; but I must suppose, that Sir William *4431 Blackstone was of opinion, that such damages could *not be included, -* otherwise, he ought certainly to have mentioned it, when he was comparing the ancient warranty with the modern covenants, which, he says, have superseded them. His expressions are these : “ If he covenants for his executors and administrators, his personal assets, as well as his real, are pledged for the performance of the covenant, which makes such covenant a better security than any warranty, and it has, therefore, in modern practice, totally superseded the other.” A general warranty is as comprehensive in its expressions, as any words made use of in modern covenants. It undertakes to defend the land to the warrantee, his heirs and assigns, against all persons whatever. It is in its nature a covenant real; and since the recovery on it extended no further than the value of the land, at the time of the warranty made, the inference is very strong, that in these personal covenants, which have succeeded to it, the extension shall be no greater. But the plaintiff’s counsel contend, that the reason why the recovery in value, on the ancient warranty, was confined to the value, at the time of its creation, is, because in real actions, no damages can be recovered. This reason is unsound. The value, at the time of the voucher, might have been recovered, without recovering damages ; and this is evident from some of the cases which have been cited; particularly, the case of Ballet v. Ballet; where it is decided, that in a warrantia chartae, if there be new .buildings, of which the warranty is demanded, which were not at the time of the warranty made, the defendant must take care to show the special matter, and enter into the warranty, only for so much as was at the time of the making of the deed, otherwise, the plaintiff will recover, according to the value, at the time of entering into the warranty. The true reason, therefore, appears to be, that the intention of the parties was so understood, that the wai’ranty should be limited to the value of the land, at the time of executing the deed.

The plaintiff’s counsel cited a case from 22 Vin. Ab. 145, pl. 5, in order to prove, that upon the implied warranty, which arises on an exchange of land, the recovery in value, after eviction, is according to the actual loss sustained. As this seemed to be at variance with the general principles of warranty, I have examined it, since the argument of the cause, and find that the case was not properly explained. The words of the abridgment are as follows : “If a man recovers in value, upon a warranty in law, on an exchange, he shall have in value, according to the value which he has lost.” In support of this, the Case of Bustard, 4 Co. 121, is cited. In the first place, it is to be remarked, that in the marginal note to pi. 6, in the same page of Yiner, it is said, that the same case is reported in Cro. Eliz., Moore, and Yelverton, in neither of which is such point mentioned ; and it is certain, from my Lord Coke’s report, that the decision must have been extra-judi*4441 c*a* ’ ^01’ ■Bustard’s case turned on a different point. *Bustard being -* evicted of the land received by him in exchange, entered upon that which he had given in exchange, by virtue of the implied condition in law which is annexed to an exchange ; and a re-entry was made on him; in consequence of which he brought an action of trespass.; and whether he could recover in that action, was the question: so that the court had nól hing +o do with the value of the land. But according to my Lord Coke’s account of it, what they did decide concerning the value, is not applicable to the point now before the court. The decision is — that if A., who has received three acres in exchange, is impleaded for one acre, and vouches B. from whom he received them, and then the demandant recovers the one acre, A. shall recover in value from B., according to the loss, that is, one acre ; but not a word is said concerning the time, to which the value of this acre is to x’elate. And that is the only question now under consideration.

It has been contended, that the true measure of damages, in all actions of covenant, is the loss actually sustained. But this rule is laid down too generally. In an action of covenant for non-payment of money on a bond or mortgage, no more than the principal and legal interest of the debt can be recovered, although the plaintiff may have suffered to a much greater amount by the default of payment. The rule contended for by the plaintiff’s counsel, in its utmost latitude, applied to covenants like the present, would, in many instances, produce excessive mischief. Indeed, the counsel have, in some measure, given up this rule, by confessing, that when buildings of magnificence ax-e erected to gratify the luxury of the wealthy, it would be unreasonable to give damages to the extent of the loss ; but the ruinous consequences would not be less to many persons, who have sold lands, on which no other than useful buildings have been erected. The rise in the value of land, not only in towns on the sea coast, but in the interior part of the United States, is such, that it can hardly be supposed, any prudent man would undertake to answer the incalculable damages, which might overwhelm his family, under the construction contended for by the plaintiff. I have taken pains to ascertain the opinion of lawyers in this state, prior to the American revolution, and I think myself warranted' in asserting, from the information I have received, that the prevailing opinion, among the most eminent counsel, was, that the standard of damages was the value of the land, at the time of making the contract. The title of land rests as much within the knowledge of the purchaser, as the seller ; it depends upon writings, which both parties have an equal opportunity of examining. If the seller makes use of any fraud, concealment or artifice, to mislead the purchaser, in examining the title, the case is different, he will then be answerable for all losses which may ensue.

Cases have been cited from the civil law ; but I throw them out of view, because this case can be decided only on the principles of the common law. *Cases have also been cited from the law reports, in the states of South Cax-olina and New York. Though they are not authority in this court, yet we shall always be happy to receive information of the opinions of the learned judges in our sister states, and always treat them with due respect. Upon the point now in question, it seems, there is a difference of opinion. In South Carolina, it has been held, that the plaintiff is entitled to i-ecover, according to the value at the time of the action: in New York, that he can only recover according to the' value at the time of the contract. On these cases, I will only remark, that the opinions of the judges in South Carolina, having been given during the hurry of a jury trial, do not appeal to have been founded on such mature deliberation as those of the New York judges, who made their decision in the supreme court, sitting in bank.

Upon the whole, I am of opinion, that, by the true construction of the covenants in the case before usrthe plaintiff is not entitled to recover the value of the improvements made by him, after he purchased of John Fromberger, and therefore, that judgment be entered for $2919.14, and costs. I am authorized to say, that Judge Ye ates, whose absence is occasioned by sickness, concurs in this opinion.

Smith, Justice.

— The question now to be decided by this court is of great importance. I understand, that it has long been discussed among the most eminent counsel in Pennsylvania, and opinions have been given by some of them ; but that it never has received a judicial decision. I believe, on inquiry, that it never came before any court in Pennsylvania, until the 24th of May 1804, when it came before the circuit court, holden for the county of Northumberland, by Judge Bhackenridge and myself, in the case of William Bonham v. John Walker’s administrator. We said, that “ it is an important question, and it is proper that it should receive a solemn decision in bank ; we, therefore, propose, that the measure of damages should be left to the jury, on each of these grounds, which is done accordingly.” The jury found “a verdict for the plaintiff, for $1092.11 damages, on the ground of the original purchase-money ; and on the ground of the value of the land at the time of the execution (eviction) $1602.21.”

After my return, I was induced to make diligent inquiry, whether the point had over been decided, and what had been the general opinion of eminent counsel on it, and the result was that expressed by the chief justice. Upon a very attentive perusal of that cases on the subject; the notes of which, taken by me then, and annexed to that case, are now before me : they did not, in my opinion, warrant me in drawing a different conclusion ; but I saw difficulties, whether, the question was decided one way or the other, *4461 which made me anxious to hear it deliberately argued: ready to *alter -1 my opinion, if I should discover, that it was not well founded ; or if the opposite opinion should be supported by law, be more conducive to the general interest, and be more agreeable generally to the intentions of the parties to such contracts.

I have heard it very well argued. If the very well-arranged and able argument of the ingenuous young gentleman who began (Mr. Sergeant) has not been able to shake the opinion which I had formed, I am induced to believe that it is well founded, on solid principles of law. I must, therefore, adhere to it upon the present occasion ; it not being suggested that there was any fraud or concealment on the part of the vendor, nor any knowledge, when ho sold, of any defect in his title. Had any of these circumstances occurred, I should be of opinion, that he would be liable to the amount of the loss.

Although the vendor, on a covenant like that in question, be liable to damages only to the value at the time of the deed ; yet, he may enter into such a special express covenant, as will make him liable to the value at the time of eviction, and so much will the vendee, on such event, be entitled to. In the present case I agree, that judgment be entered for the plaintiff for $2919.14.

Lewis, Rawle and J. Sergeant, for the plaintiff.

McKean (Attorney-General) and Ingersoll, for the defendant.

Brackenridge, Justice.

— I concur in the decision of the other judges, for the reasons which have been assigned.

Judgment to be entered in favor of the plaintiff, for $2979.14, and costs.

         5 Bac. Abr., Pleas, tit. Immaterial and Informal Issues, p. 59, 60.

       Mansley v. Smith, 6 Phila. 223.

       An express covenant qualifies and restrains the generality of an implied one. Weiser v. Weiser 5 Watts 279. But see Funk v. Voneida, 11 S. & R. 109.

         See, on the subject of covenants of title, 2 Wheat. 62, note c.


author: Tilghman, Chief Justice.

text:
    Dutilh v. Gatliff.

      Marine insurance. — •Abandonment.
    If the vessel of a neutral be captured by a belligerent, and libelled as prize of wav, though subsequently acquitted, the assured may abandon for a total loss.
    A vessel having been captured and abandoned to the underwriters, the assured is entitled to recover for a total loss, notwithstanding her subsequent release, and arrival in port before the commencement of the suit.
    An American vessel, insured at and from Philadelphia to Havana, was captured by British cruisers, carried into port by them, and there libelled as prize: a decree of restitution was subsequently obtained, after which, though before actual restitution, and without knowledge of the decree, she was abandoned; the insurance was effected, and the abandonment made by the agent for the owners, one of whom was with her, at the time of the decree of restitution: Held that the assured might recover as for a total loss. ,
    The following case was stated for the opinion of the court:
    “ Case. On the 24th of September 1799, the defendant, Samuel Gatliff, underwrote $750 upon a policy of insurance on the schooner Little Will, belonging to John Dutilh and Thomas Lillibridge, for whom the plaintiff was ■agent, on a voyage at and from Philadelphia to Havana. On the 26th of September 1799, the Little Will sailed on her voyage from Philadelphia to Havana, and on the 8th day of October following, she was captured by three British privateers, and carried into the port of Nassau, New Providence, where she arrived on the 18th of the same month. Upon her arrival in Nassau, the said schooner was libelled in the admiralty court, and on the 9th day of November following, was regularly acquitted; and in the whole, she remained thirty-seven days at Nassau, during thirty-five of which, she was in custody of the captors; but the fact of her acquittal was not known r*,, *to the plaintiff, until subsequent to the abandonment hereafter men- *■ tioned: although it was known to John Dutilh, one of the owners and supercargo, who was with her at Nassau. On the 18th day of November, the plaintiff wrote the letter of abandonment, inclosing the papers therein referred to, which was received by the defendant the same day. On the 20th November, the said schooner sailed from Nassau for Havana, where she arrived on the 21st of the same month, and Sold her cargo, except three boxes, plundered at New Providence. Afterwards, the said schooner sailed from Havana for Philadelphia, where she arrived on the 26th or 27-th of February, in the year 1800, with a cargo of sugars, on which freight became due, and was received by Stephen Dutilh, for the benefit of those who were entitled to it. Each party refusing to accept the schooner, she was sold for wharfage, and the whole proceeds of sale applied to the payment thereof. The schooner Little Will was American property, as warranted.
    “The question for the court is, whether the plaintiff is entitled to recover as for a total loss ? If the court shall be of opinion, that the loss was total, then it shall be referred, in the usual form, to three persons, to be appointed by the court, to ascertain what is due, after the legal and just deductions. If the court shall be of opinion it was not a total loss, it shall, in like manner, be referred to three referees, or any two of them, to be appointed by the court, to ascertain the partial loss, to which the defendant is liable.”

      J. Ingersoll, for the plaintiff.
    W. Lewis, for the defendant.
   After argument, the chief justice delivered the unanimous opinion of the court.

Tilghman, Chief Justice.

— On the case stated, the question submitted to the court is, whether the plaintiff is entitled to recover for a total loss. In resolving this question, I shall divide it into two points. 1st. Did there ever exist a total loss ? 2d. Supposing, that there once existed a total loss, has any circumstance occurred, which excludes the plaintiff from recovering for more than a partial loss ?

I. The case before us includes one of the risks expressly mentioned in the policy, a taking at sea. But it has been objected that this taking was not by an enemy; and that when a belligerent takes a neutral, it is to be presumed that the taking is only for the purpose of searching for the property *4481 kis enemy, or goods contraband of war; and that, in the end, jus- -* tice will be done to the *neutral. To a certain extent, there is weight in this distinction, but it must not be carried too far. At the time when the capture in question was made, the United States acknowledged the right of the British to detain their vessels, for the purpose of a reasonable search. The bare taking of the vessel, therefore, could by no means constitute a loss; and if, under suspicious circumstances, she should be carried into port, to afford an opportunity for a complete investigation, perhaps, even that ought not of itself to be considered as a total loss. On this, however, I give no opinion. But when the captor, having carried the vessel into port, and completed the examination of the cargo and papers, instead of discharging her, proceeds to libel her as prize, I think the loss is complete. The property is no longer subject to the command of the owner, and it is unreasonable, that he should wait the event of judicial proceedings, which may continue for years. The case of an embargo is lesss trong ; because, there, the confiscation of the property is not intended, and a temporary interruption of the voyage is all that, in general, is to be apprehended; yet the assured is not obliged to await the result, but may abandon, immediately on receipt of intelligence of the embargo. Not many judicial decisions have been produced on the point in question: where principles are strong, it is sufficient that there have been no decisions to the contrary. It appears, however, that in the state of New York, the precise point has been determined. In the case of Mumford v. Church, decided in the supreme court of New York, July term 1799 (1 Johns. Cas. 147), the assured recovered for a total loss, where there was a capture, carrying into port, and libelling by a British captor, although, after the abandonment, the property was restored. It is necessary, that some general rule should be established, some line drawn, by which the assured may know at what time he has a right to abandon. In most cases, the voyage is extremely injured by proceedings in the court of admiralty, and the event is doubtful. For it cannot be denied, that of late years, such extraordinary occurrences have taken place in war and politics, as have very much affected the principles and practice of foreign courts of admiralty. Whatever may be said of the law of nature and nations, and the immutable principles of justice, we see very plainly that the courts obey the will of the sovereign power of their country; and this will fluctuates with the circumstances of the times. I am, therefore, of opinion, that both by the words and spirit of a policy of insurance, the assured may abandon, when he receives intelligence of the libelling of his vessel.

II. This brings me to the consideration of the second point: Has any circumstance occurred, which limits the plaintiff to a recovery for only a partial loss ?

It is contended, that such an event has occurred : that the vessel was acquitted by the decree of the court of admiralty; that after acquittal, she proceeded on her voyage, and that one of the '“owners was on the p,;„ spot, and knew of the acquittal. I do not think there is much weight in the circumstance of one of the owners being on the spot; because the general agent of all the owners was in Philadelphia. This general agent effected the insurance, and conducted all the business with the underwriters, and the owner, who was in New Providence, gave him intelligence of what occurred, from time to time, and by no means intended, from anything that appears, to restrain him from making an abandonment. It is true, that the vessel proceeded on her voyage, after she was restored ; but it is not stated, nor can the court presume, that any of the owners acted in a manner inconsistent with the abandonment made by their agent. It was proper, at all events, to pursue the voyage, for the benefit of whoever might be interested in it. This is the usual practice, and a practice authorized by the policy, and very much for the advantage of the underwriters.

The only difficulty in the ease before the court, arises from this circumstance ; that before the action was brought, the vessel was restored, and even at the time of the abandonment, there was a decree of acquittal, although restitution does not appear to have been actually made, until some days after. The counsel for the defendant have relied much on the opinion of Lord Mansfield in the case of Hamilton v. Mendez (2 Burr. 1198), to establish this principle, that a policy of insurance, being in its nature a contract of indemnity, the plaintiff can recover no more than the amount of his actual loss, at the commencement of the action. There is no doubt of the soundness of the principle : I mean, that a policy is a contract of indemnity: the only question is, at what period the rights of the parties are to be tested by this principle ; whether at the time of abandonment, or of the commencement of the action. I have considered attentively the case of Hamilton v. Mendez: It must be obvious to every one, that the decision in that case was perfectly right. It was simply this : that a man shall not be permitted to abandon, and recover for a total loss, when he knew, at the time of his offer to abandon, that his property, which had been lost, was restored, and the voyage very little injured. But in reading the opinion of Lord Mansfield, we find a want of accuracy, with which that great man was seldom chargeable. Sometimes, it appears as if he thought the period for fixing the rights of the insurers and assured, was the commencement of the suit; sometimes, the time of abandonment; and sometimes, he even seems to extend his ideas so far as the time of the verdict; but finally, he explicitly declares, that he decides nothing but the point before him. He seems to have felt a little sore, at the improper application of some general expressions used by him, in the case of Goss v. Withers. Anxious to cut off all pretence for doing the same in Hamilton v. Mendez, he has taken too much pains to avoid the possibility of misrepresentation: hence, his argument, considered in the detail, is not altogether clear and consistent. Upon the whole of this case of Hamilton v. Mendez, I think it most safe to confine its authority to the point *actua% decided, which was very different from that we are now eon- -* sidering. Some period must be fixed for determining the right of tlie parties : to limit it to the time of commencing the action, would be of little service to the insurers ; for the law being once so established, an action would be brought in every instance, on the first default of payment. The time of abandonment seems the most natural and convenient period ; because the assured must make his election to abandon or not, in a reasonable and short time, after he hears of the loss, and the property, being transferred by the abandonment, can never after be reclaimed by the assured Want of mutuality is want of justice : there is no reason why the assured, should be bound, but the insurer left free to take advantage of events subsequent to the abandonment.

It has been contended by the plaintiff’s counsel, that the right to abandon would not have been affected, even if the property had been restored, at the time of abandonment, because the restitution was unknown to the plaintiff. As to this, I give no opinion. It is unnecessary, because it is stated that the vessel remained in the custody of the captors, at the time of abandonment. The defendant’s counsel have urged, that this was the fault of the master, or of one of the owners, who was at New Providence ; because, after a decree of acquittal, a writ of restitution might have been sued out. But it not being stated, that there was any fault or negligence in the master or owner, I do not think, that the court can infer it. It being stated that the vessel remained in the custody of the captors, we must presume that the custody was legal. Whether for the purpose of giving the captors an opportunity of entering an appeal, or for what other purpose it was, that the restitution was delayed, we are at a loss to determine. But as restitution was not actually made, and as the plaintiff was ignorant, even of the decree of acquittal, his right to abandon remained unimpaired.

Upon the whole, we are of opinion, that the plaintiff is entitled to recover for a total loss.

Judgment for the plaintiff.

         A mere arrest and detention of a neutral vessel, by a belligerent, for the purpose of legal adjudication, will not authorize an abandonment. Duncan v. Koch, Wall. C. C. 37.

       Since the decision of this case, the case of Rhinelander v. Insurance Company of Pennsylvania (4 Cr. 29), was argued in the supreme court of the United States, at Washington, in February term 1807, upon a writ of error from the circuit court of the Pennsylvania district: and that court (consisting of Marshall, Chief Justice, Chase, Johnson and Livingston, Justices) were of opinion, that in the case of neutral, as well as of belligerent, property, the assured has a right to abandon, and to claim for a total loss, as soon as the vessel is arrested, taken possession of, and carried out of the course of her voyage.

       And see Slocum v. United Ins. Co., 1 Johns. Cas. 151; Livingston v. Hastie, 3 Id. 293; Dickey v. New York Ins. Co., 4 Cow. 222 ; s. c. 3 Wend. 658.


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    Moliere’s Lessee v. Noe.

      Judicial sale.

    The purchaser of lands of an intestate, sold by an order of an orphans' :nurt, holds them dia charged from the lien of a judgment obtained against the intestate in his lifetime.
    Ejectment, for a house and lot in Union street, between Second and Third streets. The plaintiff’s title was briefly this : George Fudge was seised of the premises, in the year 1796, when Moliere, as the assignee of one Muston, instituted three suits *against him, upon several bonds, r*^ returnable to March term 1796, in which judgments were regularly *- obtained. Fudge died, and the judgments were revived against his administrators, by writs of scire facias, returnable to December term 1799 ; judgments were thereupon entered, on the 27th of December; writs of f. fa. issued, returnable the 28th of December, and were returned, “ levied upon real estate, inquisition held, and property condemned.” On the 15th of January, a vend. exp. issued, returnable to March term 1800, which was returned, that the premises had been sold to Moliere for $1000 ; and on the 3d of March 1800, sheriff Penrose executed- a deed to the purchaser.
    The defendant was tenant to Mary Beers, who claimed the premises under a sale made by order of the orphans’ court, upon the petition of the administrators of Fudge — the intestate having left two minor children. The petition was presented in May 1797, with a list of the creditors of the estate, in which Moliere’s judgments were referred to ; the order of the orphans’ court was made in June 1797; the sale was effected in July; and the administrators executed a deed to Mrs. Beers, for the premises (reciting the proceedings of the orphans’ court), in consideration-of $1200, on the 10th of August 1797. Subsequently to the sale, and receipt of the money, both of the administrators became insolvent.
    On the trial of the cause, at nisi prius, in July 1806, two grounds of defence were taken : 1st. That Moliere had allowed- Mrs. Beers to purchase and repair the estate, without giving her notice of his claim, though he was apprised of the order of sale by the orphans’ court, and the proceedings under it. 2d. That upon the sale of the estate, by order of the orphans’ court, it was discharged from all prior judgments, in the hands of the purchaser. On the first ground, both the Chief Justice (who sat at nisi prius) and the jury (as appeared from the charge and the verdict) were in favor of the plaintiff; and the second ground was reserved for the decision of the court in bank.
    The point reserved was argued on the 10th of December 1806, by Levy, McKean, S. Levy and J. Sergeant, for the plaintiff, and Lngersoll and IIop-Zdnson, for the defendant : and the following sections of several acts of assembly became material in the discussion.

      By the 6th section of the act of 1705 (Hall & Sellers, 34), it is provided, “ That if any person or persons shall die intestate, being owners of lands or tenements within this province, at the time of their death, and leave lawful issue to survive them, but not a sufficient personal estate to pay their just debts and maintain their children, in such case, it shall be lawful for 1 the Administrator or administrators of such deceased, to sell and -1 convey such part or parts of the said lands or tenements, for defraying their just debts, maintenance of their children, and for putting them apprentices, and teaching them to read and write, and for improvement of the residue of the estate, if any be, to their advantage, as the orphans’ court of the county where such estate lies shall think fit to allow, order and direct, from time to time.”
    By the 21st section of the act of April 1794 (3 Dali. Laws, 530), it is provided, “ that no lands, tenements, and hereditaments, so as aforesaid sold by the orphans’ court, shall be liable, in the hands of the purchaser, for the debts of the intestate.”
    By the 2d section of the act of April 1794 (Ibid. 523), it is provided, “ That no debts of deceased persons, except they be secured by mortgage, judgment, recognisance or other record, shall remain a lien on their lands and tenements, longer than seven years after the decease of such debtors, unless, &c.”
    By the 4th section of the act of April 1797 (4 Dali. Laws, 157), the same limitation is imposed on the lien of debts, unless a suit is brought, or a statement of the demand filed in the office of the prothonotary of the county where the lands lie, within the seven years.
    For the defendant,
    it was .insisted, that, by the act of April 1794, the purchaser, under an order of the orphans’ court, held the land discharged of all the debts of the intestate, whether secured by judgments or not. The word debts includes judgments ; and the legislature generally uses it, in that comprehensive sense. Hall & Sellers, 34, § 3, 6; Ibid. 132; 3 Dall. Laws, 522, § 1; Ibid. 523, § 1, 2; Ibid. 529, § 19; Ibid. 527; 4 Ibid. 157. This construction, however, does not extend to mortgages, which are a specific lien created by the act of the party; but only to judgments, to which, as the law gives the lien, the law may, also, take it away. 1 Dall. 481, 486. The words of the act are, then, clearly in favor of the purchaser; and it is not incumbent upon him to look to the application of the money. 9 Ann. c. 14, § 1; Lov. on B. 37; 2 T. R. 645; 2 Fonbl. 153.
    For the plaintiff,

    it was answered, that the object of the act of 1794, was to provide for the sale of real estate, in order to pay debts at the instance of creditors, who had not obtained judgments, and therefore, could not themselves compel a sale of the land ; that from the year 1705 to the year 1794, the sale was not accompanied with any condition, that the purchaser should hold the land free from the debts of the intestate ; and the inconvenience to be remedied by that provision, arose from the latent claims, referred to in 1 Dall. 481, not from judgments, mortgages, or Jther liens of record; and that words, however general, must *often be con- r* strued particular, in order to attain, without exceeding, the real object L of the legislature. Levinz v. Will, 1 Dall. 430; Plowd. 109, 305; 2 East 135.

         Yeates, Justice. — It has often been decided at nisi prim, that under this act, the orphans’ court might order a sale of lands, although there were no minor children in the ease.

   On the 20th of December 1806, the chief justice delivered the opinion of the court in the following terms.

Tilghman, Chief Justice.

— This cause was tried before me at a court of Nisi Prius, held last July, when the point was reserved, which is now to be decided. Without entering into an unnecessary detail of facts, the question may be stated to be simply this : whether the purchaser of lands of a deceased person, sold by order of an orphans’ court, since the 19th of April 1794, holds them discharged from the lien of a judgment, obtained against the intestate in his life.

Ever since the year 1705, the orphans’ court have had power to order sale of such part of the land of persons dying intestate, as they judged necessary, for the payment of their debts, education and maintenance of their infant children, and improvement of the residue of the estate. But it was not until the passing of the act of the 19th of April 1794 (2 Dall. Laws 54), that any express provision was made with respect to the manner in which the purchaser should hold the land : I mean, whether it should be liable or not, in his hands, to the debts of the intestate. Yet, although there was no legislative provision, the public mind had, probably, received an impression from the sentiments of the late Chief Justice Shippen, delivered when he was president of the Court of Common Pleas, in the case of Graff v. Smith's administrators. (1 Dall. 481, 486.) The question before the court, in that case, did not, it is true, regard a judgment-creditor; yet the expressions of the president are very general, and seem strongly to intimate an opinion, that the purchaser should hold the lands discharged even from judgments. I do not mean, however, to say, that that point was decided. After this decision, in the year 1789, came the act of the 19th of April 1794, which I shall now consider. (3 Dall. Laws 526.)

The 19th section gives the same power, which had been vested in the orphans’ court by the act of 1705, that is to say, to order sale of such part of the lands, as they should, from time to time, think proper, for the payment of debts, maintenance and education of children, and improvement of the residue of the estate. The 20th section forbids the court to order a sale, until they have ascertained, in the manner therein mentioned, the amount of the intestate’s personal estate, and of the debts due from him. The 21st section declares, “that no lands or tenements so as aforesaid sold, by order of the orphans’ court, shall be liable in the hands of the purchaser, for the debts of the intestate.”

If we consider the plain meaning of these words, the lands thus sold, are discharged from the lien of judgments. I think, no man, learned or unlearned, would understand the word debts, as ^excluding judgments. p¡.-454 The counsel for the plaintiff do not contend so ; but they argue, that altkough a judgment is a debt (taking the word debt in its largest signification), yet, to avoid great injustice and inconvenience, the legislature must be supposed to have intended only those debts, which were not a lien in the life of the intestate. The avoidance of injustice, and inconvenience, is a most desirable object, and the court will always strive to attain it. But they must not overleap tbe bounds of their duty : they have power to construe laws, but not to make or alter them; and where the meaning of the legislature is plain, the court have no right to regard inconveniences. General expressions have sometimes been construed, so as to be restrained to particular cases ; but to authorize such construction, it must appear, that the use of the words, in their general sense, would produce absurdity, contradiction or such flagrant injustice, as it could not be supposed the legislature meant to sanction. Upon a careful examination on the act in question, I cannot see that the discharge of the lands from the lien of judgment in the hands of the purchaser, will produce any such consequences. No inconvenience will result, if the orphans’ court and the administrator do their duty. The lands will certainly sell better, for being discharged from liens ; and it makes no odds to the judgment-creditors by what person they are sold, provided they are sold fairly, and the proceeds faithfully applied. I am clearly of opinion, that they must be applied to the payment, in the first place, of the liens which existed in the life of the intestate, according to their respective priority. There is no intimation in any part of the act, to the contrary, and to say that judgment-creditors should not have a preference, in the application of such proceeds, would produce this monstrous injustice, that those creditors would preserve the benefit of their lien, in case a man made a will, but lose it, if he happened to die intestate.

Before I dismiss this subject, I will give my opinion concerning debts due by mortgage, which were mentioned in the course of the argument. I conceive them to stand on a different footing from judgments, because the mortgagee is, strictly speaking, the owner of the land, and may recover it in an ejectment. The mortgagor has no more than an equity of redemption ; nor have the orphans’ court power to sell a greater estate than he is lawfully possessed of. It will be seen, that in the 14th section of the act, where the order in which debts shall be paid is designated, there is no mention of mortgages, which evidently shows that the legislature took it for granted, that the mortgagee looked to the land for his security. The question now decided, is of importance to the public, particularly as different opinions have been entertained concerning it. As it must henceforth be considered as settled, I make no doubt, but the orphans’ court, in the several counties, will use proper vigilance to prevent injury to judgment-creditors. *They have full power to see that sales are made fairly, and with due notice, and to exact security from the administrator, in proportion to the increased funds which may come to his hands. These precautions, assisted by the attention of the creditors to their own interest, will, I flatter myself, produce sales to the greatest advantage, and faithful application of their proceeds.

My opinion is, that the defendant, the purchaser at the sale ordered by the orphans’ court, holds the land discharged from the plaintiff’s judgment.

Yeates, Justice, who was present at the argument, informed the chief justice that he concurred with his opinion ; and—

Br ackeneid ge, Justice, expressed his concurrence, generally.

Judgment to be entered for the defendant.

       On a sale of an intestate’s lands, by order of an orphan’s court, judgment-creditors are to be paid according to priority in date. Girard v. McDermott, 5 S. & R. 128.

       Judicial sales of land divest all liens, whether general or specific. Thus, when a legacy is charged upon land, a sheriff’s vendee or a purchaser under a sale by an order of an orphans’ court would take the land discharged from the lien of the legacy. McLanahan v. Wyant, 1 P. & W. 96; Barnet v. Washebaugh, 16 S. & R. 410; Graff v. Smith, 1 Dall, 486 note; see also ante, p. 151 note. The act of the 6th April 1880, does not embrace the case of a sale by order of an orphans’ court.

       This is a mere dictum, and has not been received as law. Bowen v. Oyster, 3 P. & W. 243. Prior to the passage of the act of 23d March 1867, an orphans’ court sale, for the payment of debts, discharged the lien of a mortgage given by the decedent in his lifetime. Morse v. Shultz, 13 Penn. St. 98. And it still has that effect, except in certain counties of the state, for which special provision has been made local statutes. For the legislation on ikij subject, see Purd. Dig. (10th ed.) 479.