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tell whether the property replevied, was delivered or retained on
a claim of property. The defect is not matter of form 'but of
substance, as it affects materially lx>th the damages and the form
of the verdict and judgment. It, therefore, Ls not cured by

471



424 SUPREME COURT [Philadelphia,

[Snyder v. Vaux.]

verdict, 2 Chitty PI. 412 ; 5 Jacob's Law Diet. 489 ; Replevin,
Sect, 3.

2. The declaration does not correspond with the writ. 1
Saund. 318, note ; Easton v. Worthington, 5 Serg. & Rawle, 130.
r*jor-i *3. The court did not answer the first proposition sub-
mitted by the defendant below. The question proposed
was, whether, if the defendant entered and cut down the trees,
claiming title in any one, himself, or any one else, adversely to
the plaintiff, the plaintiff was entitled to recover. The court
said, that he must enter under colour of title in himself; and
almost said, he must show a good title. Suyder did not claim
title in himself, but denied the title of the plaintiff below. In
no instance will replevin lie for trees cut down upon the land,
for it necessarily involves the question of title to the land itself.
To establish a title to the trees, the first step must be, to show
title to the laud on which they grew ; and nothing is better set-
tled, than that the title to real estate cannot be tried in replevin,
or any other personal action. Mather v. Trinity Church, 3
Serg. & Rawle, 509 ; Brown v. Caldwell, 10 Serg. & Rawle,
114; Baker v. Howell, 6 Serg. & Rawle, 476 ; Irvine v. Han-
lin, 10 Serg. & Rawle, 220. The defendant below was in the
actual, exclusive possession at the time the trees were cut down.
The land was vacant, and the moment he entered, he was in the
actual possession ; he had the possessio pedis, which gave him
the right to retain the timber he had cut, leaving the plaintiff
below his remedy by action of trespass, quare dausum fregit.
It is important to the merits of this case, that the proper forms
of action, established by the wisdom of ages, should be pre-
served. If trespass had been brought, the damages would have
been only the value of the timber in its rough state, and the de-
fendant below would not have lost his labour, unless the trespass
was wantonly committed ; but by replevin, the plaintiff gets the
timber after the defendant's labour has altered its form, and
given it an increased value. The defendant went on the land
innocently believing it to be actually vacant, and ought not to
lose his labour.

4. The court below erred in saying, that the property was not
so altered as to prevent a recovery by the plaintiff. If he had
any property in the trees, it attached at the moment they were
cut down, and the character of the property was afterwards
changed. It must possess the same character at the time of the
replevin that it had when the right attached. Upon the oppo-
site principle, if a cow has been taken, the owner may have re-
plevin Tor the hide, or even for the leather, after it has been
made into shoes, or replevin may be maintained for wood after
it has been made into barrels, tubs, or churns, and mixed with
472



March 27, 1830.] OF PENNSYLVANIA. 425

, [Snyder v, Vaux.]

other wood. The question is, whether the property has been so
altered, that a person who knew it before the alteration, would
not know it afterwards. The party who sues out a replevin, is
bound to show the property to the sheriff, which could not be
done in the present instance. No case can be found, in which
replevin has been sustained, where the property has been altered.
Trespass and trover differ materially from replevin, the former
being for the recovery of damages, and the latter for the iden-
tical thing taken. 6 Bac. Ab. 69 ; Moore, 394 ; 2 Brownl. 139 ;
*5 Jacobs' Law Diet. 487. Instances, therefore, in r*4o/n
which trespass or trover have been maintained, where -
the property has undergone a change, have nothing to do with
the present question.

Chf.uncey, for the defendant in error, who was requested by
the coort to confine himself to the third and fourth points made
by the counsel of the plaintiff in error, observed, in respect to
the third, that the judge did answer the question submitted to
him fully and rightly, and almost in the words of the Supreme
Court in Brown t v. Caldwell, 10 Serg. & Rawle, 114. The court
below did not say, that the defendant must show title, or any-
thing like it ; but merely, that if the defendant was not in pos-
session, and had neither title nor claim of title, this action could
be maintained. This is clearly right. Title is not necessary to
be shown, but merely possession. Here the defendant did not
even assert a title ; he was a mere trespasser, and could acquire
no title by his trespass. The plaintiff, on the other hand,
being the undisputed owner of the land, was in constructive,
actual possession of it ; the possession, in contemplation of law,
always accompanying the title, unless there is an actual, adverse
possession.

4. The rule is, that replevin will not lie where the property
has undergone an essential change in its character, so that its
identity cannot be shown ; but where the essence of the thing
remains, though the form be changed, this action can be sup-
ported The cases put by the opposite counsel, and in the books,
in which it will not lie, are extreme cases, in which the property
has been made up into something else, and totally lost its orig-
inal character. This has been the law from very ancient times.
Udal r. Udal, Alleyn, 82, 3d Resolution; Moore, 19, 20; 20
Vin. 419; Cro. Car. 242, 274. This rule has been acted
upon repeatedly in New York, in cases of trespass and trover, in
which the principle is exactly the same as in replevin. 5 Johns.
Rep. 348 ; Curtis v. Groat, 6 Johns. Rep. 168 ; Babcock v. Gill,
10 Johns. Rep. 287 ; 7 CoAvan's Rep. 95. No question of title
can possibly arise in this case, for the defendant below admits,

473



426 SUPREME COUET [Philadelphia,

[Snyder v. Vaux.]

that he was a trespasser, and the plaintiff the owner of the soil.
Unless, therefore, the defendant can acquire a title by his tres-
pass, and bestow his labour on what was not his own, this suit
may be maintained.

The opinion of the court was delivered by

SMITH, J. The defendant in error brought an action of re-
plevin against the plaintiff in error, for taking and detaining
ten thousand chestnut rails, and three thousand chestnut posts,
together of the value of five hundred dollars. A part only of
the rails and posts were replevied and delivered to the plaintiff,
for which the jury found for him, with five dollars damages for
the unjust taking and detention, and full costs of suit, where-
upon the court rendered judgment. The defendant below, on
the trial, requested the court to charge the jury, that if they be-
r*497l li eve d ^ na t ne cu ^ the trees in question, *under a claim
-" of property in the soil whereupon the trees grew, the
plaintiff was not entitled to recover, and if such claim were
really made, it mattered not whether it were well or ill founded.
Secondly, that if the trees were split into rails and posts, and
their character and identity were thus altered, the plaintiff could
not maintain replevin. The court, after submitting the facts to
the jury, instructed them, that if they believed that the defendant
was in possession of the land from which the trees were cut,
under a claim of title, then this action of replevin could not be
maintained ; but if they believed, that he was not in possession,
nor had either title, or claim of title, then this action was well
brought, and the paintiff was entitled to recover. And thirdly,
the court answered, that making trees into rails and posts, was
not such an alteration of the property as to prevent the plain-
tiff from recovering them in replevin.

The errors assigned, and insisted on, relate to these instruc-
tions of the court. It is alleged, that the court did not answer
the first point propounded, and so far as the same was answered,
the answer was erroneous, and that the answer of the court to
the second point was also erroneous. I think the first point
was answered fully and correctly. The court took the long
and well-settled ground, that title to land could not be tried in
an action of replevin, ex directo, although it may sometimes in-
cidentally come in question; and, therefore, if the trees had been
cut, under an actual claim of title, it would have been necessary
for the injured party to pursue a different remedy ; but if the
defendant had neither possession, title, nor claim, he was a mere
trespasser, and the plaintiff had an undoubted right to recover.
Thus the court sufficiently answered the legal proposition in-
volved in the point, referring the matter of fact to the jury.
474



March 27, 1830.] OF PENNSYLVANIA, 427

[Snyder v. Vaux.]

2. But it is contended, that the trees cut had been changed
into rails and posts, and their identity so altered, that replevin
could not be maintained. The cases cited by the plaintiff in
error, do not support the doctrine contended for. A wilful
trespasser cannot acquire title to property, merely by changing
it from one article into another, as by working trees cut down
into shingles, or into cord wood, logs or rails. And that the
law has been so from time immemorial, is evident from the year
books, where it is said, that whatever alteration of form any
property may undergo, the owner thereof may take it in its
new shape, provided he can prove the identity of the original
materials ; as if leather be made into shoes, cloth into a gar-
ment, trees squared into timber, or iron made into bars. And
the same doctrine is recognised in modern cases. See 5 Johns.
Rep. 340; 6 Johns. Rep. 168; 10 Johns. Rep. 287, and 7
Cowan, 95. It is true, that if the plaintiff fail to prove the
identity of the property in question, or in other words, to show
that the original materials were the same which belonged to him,
he cannot recover ; but whether the same or not, is an inquiry
into a fact, which falls within the province of the jury. The
pernicious ^consequences of a different rule, are suffi- r^^osl
cieutly obvious. Should a wilful trespasser be able to L
protect himself by any change which he might communicate to
the shape or form of the materials, an unbounded license would
be given to plunder, and the security of personal property would
be exceedingly diminished.

In Pennsylvania, the action of replevin has been liberally ex-
tended, and it embraces almost every case of personal property
which is in the possession of one person, and claimed by
another. It will lie for the rails and posts,' sued for in the
present suit.

Other errors were assigned, but were abandoned on the argu-
ment, and, therefore, need not be considered. The plaintiff,
then, in our opinion, has failed to support the errors assigned,
and the judgment is, therefore, to be affirmed.

Judgment affirmed.

Cited by Counsel, 6 Barr, 394 ; 9 H. 361 ; 4 Wright, 253 ; 5 S. 173 ; 4 N.
257, s. c. 5 W. N. C. 72.

Cited by the Court, 10 W. 342 ; 5 S. 178.



475



428 SUPREME COURT [Philadelphia,



[PHILADELPHIA, MARCH 27, 1830.]



Moser against Libenguth and Another, Administrators
of Libenguth.



APPEAL.



A joint bond cannot, as against a surety, be shown to have been made so by
mistake, instead of a joint and several bond, by evidence dehors, unless the evi-
dence leave no doubt, that a mistake, in point of fact, has been committed, and
the instructions of the parties departed from.

APPEAL, by the defendants from the decision of Smith, Justice,
holding a Circuit Court for Montgomery county, on the 1st of
March, 1830.

The action was debt, brought by Peter Moser against Eve
Libenguth and John Libenguth, administrators of Jacob Liben-
guth, deceased, on a bond, dated 2d of April, 1821, given to
Peter Moser by Joseph Libenguth, and the said Jacob Liben-
guth, the intestate. This bond was decided to be a joint bond,
for which decision, and the form of the bond, see 1 Rawle, 255.
The cause was tried again on the plea of payment, with leave
to give the special matters in evidence, non est factum, and the
following plea, viz. : " That the writing obligatory, if any such
was sealed and delivered, by the said" Jacob Libenguth, was
sealed and delivered jointly, with one Joseph Libenguth, who
is still living, to wit : at the county of Montgomery, and not by
the said Jacob Libenguth, alone."

The plaintiff replied, non solvit and issues, and "That the
plaintiff ought to have his action, &c., anything in the aforesaid
plea notwithstanding ; and that the said writing obligatory, in
r*42Ql ^ e *declaration mentioned, was sealed and delivered
J by the said Jacob Libenguth, jointly and severally with
the said Joseph Libenguth."

William Mintzer, one of the subscribing witnesses, after
having proved the execution of the bond, testified, " That he
filled up the bond at the request of Moser and the Libeuguths :
That in doing so, he acted as the agent of both parties : That
Joseph got the money from Moser, and Jacob, the father went
security : That the parties did not give him any instructions
whatever, in what manner Jacob Libenguth was to be bound :
That he received no instruction from either of the Libenguths,
except that Jacob was to go security for the money, and he was
told to fill up the bond in the usual form : Tha't he had filled
up a number of bonds for Moser, in some of which there were
476



3farc/i27,1830.] OF PENNSYLVANIA. 429

[Moser v. Libenguth and another, Administrators of Libenguth.]

sureties : That he received no instructions to make this a joint
bond from either of the parties : That he received no instruc-
tions to make it a joint and several bond ; none from either
party, one way or the other : That he read it to the parties, but
doubted whether they understood it ; they were all Germans :
That he explained the amount of the bond to them, and the
suretyship, and when it was to be paid, and that both were
bound : That from the instructions he received from both parties
at the time, he intended to bind them jointly and severally ; that
is, if Joseph Libenguth was not able to pay the money, Jacob
should : That Joseph was considered insolvent a number of
years back; iu 1825 or 1826, his property was sold by the
sheriff: That he did not read the bond to them in German, but
explained it, and he had no doubt they knew what they were
about when they signed the bond : That the instructions were
to draw up 'the bond in the usual way in which he had done so
for Mr. Moser : That in drawing bonds, he generally put in the
words jointly and severally, and he could not account for not
having put in the word severally in this instance, except that the
line was filled up : That it was in the presence and hearing of
old Mr. Libenguth, that he was told to fill up the bond in the
usual way : That this instruction referred to its being paid in
gold or silver; but whether it referred to that alone, he could
not say."

The evidence being closed, His Honour charged the jury :
" That they were to consider whether any circumstances had
been given in evidence, to show, that the original intention of
the parties was, that the bond should be joint and several : That
they must be satisfied from the evidence, that such was the inten-
tion : That if they were satisfied that it was the intention of
the parties that it should be different from what it was, the plain-
tiff must recover : That it was for the jury to say, whether
Jacob Libenguth intended it should be a joint bond ; if he did
intend it, he must have known that his estate would not be
bound after his death, which was more than many lawyers knew :
That if, from the circumstances, they believed it was a mistake
of the scrivener, and the parties intended the bond should be
joint and several, and not joint, it was their *duty to I-JMOAI
find for the plaintiff; and if the evidence struck them L
as it struck him, old Mr. Libenguth did not believe or think his
estate would be exonerated from the payment of this bond after
his death. If, however, the jury thought differently, they would
find for the defendants."

The jury found a verdict for the plaintiff, upon which the
defendants moved for a new trial ; and the judge having over-
ruled the motion, they appealed.

477



430 SUPKEME COURT [Philadelphia,

[Moser v Libenguth and another, Administrators of Libenguth.]

The cause was argued by Rawle, Jr., for the appellants, who
cited, 1 Phill. Ev. 511 ; Gillespie v. Moon, 2 Johns. Ch. Rep.
596, 597 ; Lyman v. The United Insurance Company, 2 Johns.
Ch. Rep. 633 ; Christ v. Diffenbach, 1 Serg. & Rawle, 465 ;
Cozens v. Stevenson, 5 Serg. & Rawle, 423, 426 ; Iddings v.
Iddings, 7 Serg. & Rawle, 114; Heagy v. Uruberger, 10 Serg.
& Rawle, 342 ; Besore v. Potter, 12 Serg. & Rawle, 160 ; 1 Madd.
Ch. 60 ; Lyon v. Richmond, 2 Johns. Ch. Rep. 51 ; Heilner v.
Imbrie, 6 Serg. & Rawle, 411 ; M' Williams v. Martin, 12 Serg.
& Rawle, 269; Weidler v. Farmers' Bank, 11 Serg. & Rawle,
134 ; Deal v. M'Cormick, 3 Serg. & Rawle, 344 ; Weaver v.
Shryock, 6 Serg. & Rawle, 264 ; Fisher w. Larick, 3 Serg. &
Rawle, 319.

Ifittera, for the appellee, referred to, and commented on the
authorities cited against him, and cited, Marshall v. De Groot,
1 Games' Cases in Err. 122.

The opinion of the court was delivered by

GIBSON, C. J. In 1 Rawle, 255, this bond was 'determined
to be joint, because the positive intent of the parties, as expressly
declared in the penal clause, could not be controlled by an ad-
verse implication, which might otherwise have been made from
the words of the condition. The attempt now, is to establish
the existence of accident and mistake, by evidence dehors; but
although an instrument may undoubtedly be reformed on parol
proof, yet, where, as here, the relief sought is adverse to the pre-
existent equity of a surety, the evidence should be so clear as to
leave the fact without the shadow of a doubt. Where, indeed,
the deceased obligor was the principal debtor, mistake will, it
seems, be presumed from the naked relation of the parties ; but,
whether of fact, as regards the words inserted, or of law, as
regards their effect, is nowhere said ; relief being granted to
prevent a failure of justice, and substantially, on the foot of an
equity arising from actual receipt of a benefit. It has, indeed,
been intimated by authority eminently entitled to general respect,
that mistake in point of law, is an available ground to reform
the instrument, independently of fraud and imposition, or the re-
lation of the parties. Hunt v. Rousmanier, 8 Wheat. 174. That
point is not before us, and at present, it is proper to say more
than that the principle seems to be unsupported by authority or
analogy ; and that it would be pregnant with danger further to
f*4^n *expose instruments of writing to speculation as to the
-" legal understanding of the parties, and to the hazard
and uncertainty of parol proof. In the case at bar, the plain-
tiff was bound to show a clear mistake in matter of fact ; and
478



March 27, 1830.] OF PENNSYLVANIA. 431

[Moser v. Libenguth and another, Administrators of Libenguth.]

how stands the evidence of it. The scrivener testified, explic-
itly, that he received no instructions to make the bond joint
and several, being barely desired to fill it up in the usual way ;
but that he, himself, intended to bind the obligors jointly and
severally ; that is, as he explains it, to bind the surety to pay,
in case the principal should not : in other words, that he and
the parties were ignorant of any difference between the one form
and the other, and if that were a ground of relief it would sel-
dom be wanting. But a mistake of the scrivener, if not common
to the parties, would be unimportant, the question being, was
anything omitted which was directed to be inserted? The
scrivener read the bond to the parties, but doubts whether it
was understood. A doubt would be insufficient to rebut the
equity of a surety, even if it related to matter of fact, particu-
larly where the person doubting explained the matter to the
parties in their vernacular tongue, and says, he entertains no
doubt that they knew what they were about. But the doubt,
if any, evidently related to the legal effect of the instrument
a circumstance altogether insufficient to sustain a prayer for
relief against a surety : but nevertheless, this was obviously the
ground on which the jury found for the plaintiff, as the evidence
excludes the possibility of mistake in matter of fact. The par-
ties gave no particular instructions, without which it is not easy
to see how mistake can be suspected. Having heard the bond
read in the English language, in connection with the scrivener's
explanations in the German, they adopted its words as their
own, and took upon themselves the consequences of their legal
effect. The administrators of the surety, therefore, being dis-
charged at law, cannot be charged in equity.

HUSTON, J., and TOD, J., were absent in consequence of sick-
ness.

Judgment of the Circuit Court reversed, and a new trial
awarded.

Cited by Counsel, 4 K. 154; 2 Wh. 78 ; 5 Wh. 62 ; 4 W. 51, 290 ; 2 W. &
8. 49 ; 2 J. 51 ; 12 H. 493 ; 1 S. 370 ; 9 S. 222 ; 18 S. 270.
Approved, 2 W. 416 ; and commented on, 7 H. 238.



[PHILADELPHIA, MARCH 27, 1830.]

Brodie, Administrator of Lightfoot, against Bickley,
Administrator de bonis non of Polgreen.

Debt will not lie against an administrator here, on a judgment against a for-
eign administrator of the same intestate.

THIS action, which was debt on a judgment, obtained in the

479



431 SUPREME COURT [Philadelphia,

[Brodie. Administrater of Lightfoot, v. Bickley, Administrator de bonis non

of Polgreen.]

island of Barbadoes, by the plaintiff's intestate, against Susanna
D. Polgreen, administratrix of Thomas B. Polgreen, upon whose
estate letters of administration de bonis non were granted to the
r*4*}91 P resen t *defeudant, by the register for the probate of
^ wills, &e., for the city and county of Philadelphia, was
brought in this court to July Term, 1815.

The case will be best understood from the pleadings. The
declaration was as follows :
" Philadelphia County, ss.

" "Of the Term of June, 1815, No. 34.

"Abraham Bickley, administrator de bonis non of the goods
and chattels, rights and credits which were of Thomas Bickley
Polgreen, deceased, unadministered, was summoned to answer
David Brodie, administrator of all and singular, the goods and
chattels, rights and credits, which were of Samuel Francis
Lightfoot, deceased, at the time of his death, of a plea, that he
render unto the said David Brodie the sum of twenty thousand
dollars, lawful money of the United States, which he unjustly
detains from him, and whereupon the said David Brodie, by
Benjamin Tilghman, his attorney, complains, for, that whereas
the said Samuel Francis Lightfoot heretofore, to wit, at a Court
of Common Pleas in and for the island of Barbadoes, and within
the jurisdiction of the said court, on the 25th day of February,
in the year of our Lord one thousand seven hundred and ninety-
two, by the consideration and judgment of the said court, re-
covered against the said Susanna Dorothy Polgreen, adminis-
tratrix of all and singular the goods and chattels, rights and
credits of the said Thomas Bickley Polgreen, as well the sum of
two thousand pounds current money of the said island of Bar-
badoes, which, in and by the said court, were then and there
adjudged to the said Samuel Francis Lightfoot, for the non-
payment of a certain debt due upon a certain bond or obligation
under seal, made and executed by the said Thomas Bickley
Polgreen, on the 5th day of August, in the year of our Lord
one thousand seven hundred and seventy-two, to the said Samuel
Francis Lightfoot, as also the sum of two thousand pounds,
current money of the said island of Barbadoes, for his costs and
charges by him about his said suit expended in that behalf, to
the said Samuel Francis Lightfoot, by the said court, of his own
assent, then and there adjudged, whereof the said Susanna Doro-
thy Polgreen, administratrix as aforesaid is convict, which said
judgment still remains in that court in full force and effect, in
noM'ise satisfied or annulled. And the said David Brodie, in
fact saith, that the debt, damages, costs, and charges aforesaid,
: n form aforesaid recovered, are of great value, to wit, of the
480



March 27, 1830.] OF PENNSYLVANIA. 432



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