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the judgment until reversed on a writ of error. The validity of the
judgment cannot be questioned on the distribution of the money
raised by the sheriff's sale.

A difficulty has been made whether this is a judgment against
the executors of Meason, in their individual, or representative capa-
city. But this we deem to be an immaterial inquiry ; as in whatever
way it may be viewed, this judgment creditor is entitled to come in
on the fund. It is admitted that the properly sold, belonged to the
estate of Isaac Meason deceased, and is, of course, liable for his debts.
Now the doctrine of extinguishment, cannot arise, as we must take
the judgment to be valid, as above stated, either against them as ex-
ecutors, or against Isaac Meason in his individual character; and in
either case the judgment is entitled to be paid out of the fund raised
by the sale of property which belonged to Isaac Meason deceased,
and by him devised to his son, as whose property it was sold by the
sheriff. Order of the common pleas affirmed,
iv. 2 T



346 SUPREME COURT [Pittsburgh

[Meason's Estate.]

Hurst v. Meason. The plaintiff, under this judgment, levied on
the interest of the defendant in the bridge at Connelsville ; and the
question is, whether the proceeds are to be distributed as real or per-
sonal property. The bridge was erected by virtue of an act entitled
an act to authorize Isaac Meason and Zachariah Connel, their heirs
and assigns, to erect, build and maintain a toll-bridge across the
Youghiogeny river, at Connelsville, in Fayette county. It is ad-
mitted that the abutments of -the bridge are built on the lands of
Meason and Connel; who, by becoming joint owners, became the
tenants in common of the property. The act vests the property in
Connel and Meason, their heirs and assigns ; it would, therefore,
seem to be regarded by the legislature as real estate : and it is doubt-
less competent for them to say whether it shall be real or personal
estate. And in the sixth section the grantees, their heirs and assigns,
are enjoined, under a penalty, to keep the bridge in repair. ' If a
man erect a bridge on his own land, it is unquestionably real estate;
and the only difference between that case and this is, that here the
bridge is authorized by an act of assembly, because, being built over
a public highway, the consent of the legislature must be obtained
for the erection, and the tolls must be authorized and regulated by
act of assembly. The abutments are upon the land of Meason and
Connel, and I presume a grant of the land would carry the bridge
as an incident or appurtenant; and this would hardly be doubted
when, as may often be the case over a small stream, there is but a
single arch. But aside of this, I think it clear that it is real property.
It may be included under the term tenement, if not land. Tenement
is a word of greater extent than land ; and though in its vulgar sense,
as Blackstone says, it is only applied to houses and other buildings,
yet in its original, proper and legal sense, it signifies every thing that
may be holden, provided it be of a permanent nature whether it be
of a substantial and sensible, or of an unsubstantial, ideal kind. Thus,
liberum tenementum, frank tenement or freehold, is applicable not only
to lands and other solid objects, but also to offices, rents, commons
and the like ; and as lands and houses are tenements, so is an ad-
vowson a tenement ; and a franchise, an office, a right of common,
a peerage, or other property of the like unsubstantial kind, are all of
them, legally speaking, tenements. A rent, and a right of way, have
also been held to be tenements. 2 Ves. Jun. 283. A pew in a church
was held to be real estate. Bates v. Sparrell, 10 Mass. Rep. 323.
In Buckridge v. Ingram, 2 Ves. Jun. 651, the shares in the naviga-
tion of the river Avon, under the statute of 10 Jlnne, were held to be
real estate and subject to dower. In Drybutter v. Bartholomew, 2
P. Wms 127, the shares of the New River Company are held to be
real property.

In the case at bar it is not only a right arising out of the soil, but,
so far as the abutments of the bridge are concerned, it is the soil
itself. In Co. Litt. 32, the cases in which a woman is endowable
are enumerated, as a mill, a villain, the profit of stallage, a fair, the



Sept. 1835.] OF PENNSYLVANIA. 347

[Meason's Estate.]

office of marshalsea, a dovehouse and a piscary. Wherever a per-
petual inheritance is granted, as here, which arises out of lands, or
is in any degree connected with, or, as it is emphatically expressed
by lord Coke, exercisable within it, it is that sort of property which
the law denominates real property.

In Lord Stafford v. Buckley, 2 Ves. 170, Lord Hardwicke said, "an
annuity in fee, granted out of the four and a half per cent duties
upon goods exported from the West Indies, is a personal heredita-
ment." He was of opinion that it was a mere personal annuity,
having no relation to lands or tenements, nor partaking of the nature
of rent, which savours of the realty. I think it plain that if it had
savoured of the realty, the chancellor would have been of the opinion
that it was a real and not a personal hereditament. Order of the
common pleas affirmed.

The next and last judgment in order, is the Bank of Pittsburgh
. Meason, which, it is understood, depends on the principles discussed
in Hankins v. Meason. Order discharging the rule reversed, and
rule made absolute.

Some doubts exist in the minds of at least some of the court,
whether the judgment creditors are entitled to more than simple
interest on the original judgment, or whether they can count their
interest on the judgments when revived. It is therefore ordered that
the judgments be calculated on the principle of simple interest, leav-
ing the other question for future adjudication.

Decree accordingly.



Henry against Norwood.

By the fourth section of the supplementary arbitration act of March 1820,
it is the duty of the party who enters the rule, to serve a copy of the record of
the appointment upon the adverse party, if he reside in the county, although
his attorney attends when the appointment is made.

In an action for a libel, if the plaintiff give in evidence parts of the libel not
set out in the declaration, for the purpose of showing malice, it is competent for
the defendant to give evidence of the truth of such parts, although he has not
pleaded a justification.

In an action for a libel it is competent for the defendant to prove that the
general character of the plaintiff is bad.

ERROR to the common pleas of Beaver county.

David Norwood against William Henry. Action for a libel.

The defendant entered a rule of arbitration : the attorneys of the
respective parties appeared and made choice of arbitrators, and agreed
to the time and place of meeting. The arbitrators met, the defend-
ant appeared, but the plaintiff did not, and an award was made for



348 ' SUPREME COURT [Pittsburgh

[Henry v. Norwood.]

the defendant. On motjon of plaintiff's counsel, the court set aside
the award at the cost of the defendant, OH the ground fchat a copy of
the appointment of the arbitrators was not served on the plaintiff, a^
required by the fourth section of the act of 28th of March 1820.

The plaintiff's declaration set out but a part of the libel made by
the defendant; but the whole of it was given in evidence to show
malice on the part of the defendant in publishing ihe other parts de-
clared on. The defendant, then offered to give evidence of ihe truth
of those parts of the libel thus read by the plaintiff and not declared
on. This was objected to on the ground that the defendant had not.
pleaded a justification, and the court rejected the evidence and sealed
a bill of exceptions. The defendant also offered to prove that the
general character of the plaintiff was bad. This was also objected
to and the evidence was rejected.

The errors assigned were: that the court erred in settingaside the
report of the arbitrators, and in rejecting the defendant's evidence as
contained in the two bills of exception.

Burke and Walls, for the plaintiff in error, cited, 2 Stark. Ev. 877 ;
Bull. JV. P. 9 ; 1 Binn. 92.

Jlgnew, for the defendant in error.

The opinion of the Court was delivered by

KENNEDY, J. Under the eighth section of the act of 1810 regu-
lating arbitrations, where both parties, either by themselves, their
agents or attorneys, attended to the appointing of the arbitrators be-
fore the prothonotary, it was not required of the party entering the
rule that he should give or serve a certified copy of the record of the
appointment upon the adverse parly in any way whatever either
upon himself, his agent or attorney. If the latter, however, did not
attend, either in person, or by his agent or attorney, at the time and
place of appointing the arbitrators, it was then required that a certi-
fied copy of the record of the appointment of the arbitrators, contain-
ing their name?, together with the place and time fixed for their
meeting, should be served upon him, if living within the county;
otherwise upon his agent or attorney. But it is evident, from the
fourth section of the supplementary act of the 28th of March 1820,
that the legislature intended to make some alteration in regard to
this matter ; otherwise the fourth section would not have been intro-
duced and passed. For it being substantially, if not identically the
same with that part of the eighth section of the original act, which
requires and points out the manner in which the certified copy of the
record of the appointment of the arbitrators shall be served, omitting
the following clause, " where such party has not attended by him-
self, his agent or attorney on the day on which the arbitrators were
chosen or appointed," goes to show pretty clearly that it was intended
to make the requisition of serving such certified copy on the party



Sept. 1835.] OF PENNSYLVANIA. 349

[Henry v. Norwood.]

in the manner therein prescribed applicable to all cases, as well
where he attended to the appointing of the arbitrators as where he
did not. We therefore think, upon its being shown that the plaintiff
below resided within the county, and that no copy of the appoint-
ment of the arbitrators was served upon himself, that the court were
right in setting aside the award of the arbitrators.

The second error assigned is, in the court's rejecting evidence of-
fered by the defendant below,: first, for the purpose, as his counsel
allege, of proving the truth of certain parts of the libellous writing
not set forth by the plaintiff in his declaration but read in evidence
by him- to show malice on the part of the defendant in publishing
the other parts declared on ; and secondly, to show I hat the general
character of the plaintiff was bad.

So far as the evidence offered tended merely to prove the truth of
those parts of the libel read by the plaintiff but not introduced by
him into his declaration, it certainly ought to have been received ;
because as to them the defendant had no opportunity of justifying.
2 Stark. Ev. 465, Phil ed. 1834. But how much of the evidence
offered was of this character does not distinctly appear, owing
to the careless manner in which the bills of exception have been
drawn up. It is certain, however, that it was not all so ; for the
depositions of Jane Duff and Fanny Caldwell, that part of James An-
derson's testifying to the free use of ardent spirits, &c. in the session
of the plaintiff's congregation when he was moderator, and the deposi-
tion of James Miller, except that part of it which relates to the plain-
tiff's general character, tended strongly to prove the truth of those
parts of the libel selected by the plaintiff and set forth in his declara-
tion as the ground of his complaint; and were, therefore, not ad-
missible evidence under the general issue. To have received this
part of the evidence would have been a violation of the rule estab-
lished in Underwood v. Parkes, 2 Stran. .1200, where it was agreed
by all the judges, that evidence of (he truth could not be admitted
either in bar of ihe action or in mitigation of damages, unless it were
pleaded. The propriety of this rule is most obvious, for as Mr Slar-
kie very justly observes, if facts tending to prove the truth of the
charge were lo be admitted in mitigation of the punishment, how
would it be possible to draw (he line and stop short of actual convic-
2 Stark. Ev. 470, Phil. ed. 1834. It may be too, but not
having a copy of the enlire libel on our paper books, we cannot
say it was so, that some of the evidence offered and rejected by the
court (ended to prove particular facts or circumstances injurious to
the character of the plaintiff, not contained in any part of 'the libel :
if so, the court was right in rejecting it; because, although the
plaintiff may be considered as having put his general character in
;uid therefore bound to sustain Jt or abide the consequences,
yet it would be unreasonable to suppose that he could, or to require
that he should, come prepared to encounter and refute every act or
appearance of indiscretion or crime that might be imputed to him in



350 SUPREME COURT [Pittsburgh

[Henry v. Norwood.]

the whole course of his life, without any previous notice given to
hirn that such charges were intended lo be made. And besides,
even if a plaintiff should be guilty of one offence, that furnishes no
reason or justification for falsely and groundiessly charging him with
another; nor ought it to be considered any extenuation of the con-
duct of a slanderous defendant.

Something was also said on the argument in regard to the admis-
sibility of evidence tending to prove that the charges contained in
the libel and set forth in the declaration were in circulation and cur-
rently reported to be true before they were published by the defend-
ant as a libel. The admission of such evidence, even in cases of
verbal slander or defamatory words spoken, ought not perhaps to be
sanctioned, unless under pretty narrow restrictions; for in many such
cases it may be impossible to trace the slanderous report to its first
author, and in every case of the kind the defendant is as likely to be
the author as any other. And why should not the publisher of a
slander be held responsible and punished as the author, unless he
shows clearly who the author is, and that when he spoke the slander-
ous words he mentioned the author's name in such a way as to
show that he was a witness for the party slandered against the slan-
derer, and not participating with him in it] But it is obvious, for at
least two reasons, that the rule, even thus qualified and restricted,
ought not to afford a protection to a parly who has heard defamatory
words spoken of another, if afterwards he commit them to writing or
to print, and publish them in this form, without some legal excuse for
doing so, notwithstanding he gives the author's name along with it.
First, because the words spoken, though tending to bring the person
of whom they are spoken into contempt or ridicule among his ac-
quaintances, may not be actionable, but may become so by commit-
ting them to writing or print, and publishing the same ; so that if it
were to be held a good defence for the writer or printer and publisher
in such case, that he disclosed in his written or printed publication
the name of the person who communicated the same to him ore tenus,
it is perfectly clear that the person slandered must be without re-
dress, though greatly injured. And secondly, because reducing the
slander to writing or print, and sending it forth into the world in this
form, not only gives to it a much wider spread, but a character vastly
more imposing on the credulity of mankind, and one that may occa-
sionally commend itself to the most wary. In short, the injury pro-
duced, both to the public and the individual, by a written or printed
slander, is so much greater than that generally occasioned by a ver-
bal one, that they may be considered as belonging almost to different
classes of private wrongs.

With respect to the evidence offered for the purpose of showing
that the general character of the plaintiff was bad, we think it ought
lo have been received, and I hat the court below were wrong in re-
jecting it. 2 Stark. Ev. 469, 470, Phil. ed. 1834, and the authori-
ties referred to in the notes. That such evidence is admissible may



Sept. 1835.] OF PENNSYLVANIA. 351

[Henry v. Norwood.]

be clearly deduced from the ground itself upon which the plain-
tiff must rest, his claim to damages. In his declaration he com-
plains, that, being of good character as a minister of the Gospel, and
also as a citizen, and having sustained the same until ihe publica-
tion of the libel by the defendant, he thereby received great injury
in his good name so previously had and enjoyed. Now it is appa-
rent that the injury here complained of and alleged to have been
produced by the publication of the libel, is the loss of his good cha-
racter ; and hence it becomes all important, as well as pertinent to
the issue, to inquire whether or not the plaintiff had a good charac-
ter, such as he has averred in his declaration; for if he had it not,
it was impossible in the nature of things that he could either lose
or be deprived of it. The testimony was also admissible for the pur-
pose of establishing a measure of justice between the parties; because
the extent of the injury, if any, which the plaintiff had sustained,
depended, in some degree at least, upon the goodness or the badness
of his general character before the publication of the libel; and as
the amount of compensation ought to be commensurate with, and
bear some proportion to, the extent of the injury, it. was altogether
proper for the jury, who were to assess the amount, to know what
standing and character the plaintiff had in society anterior to the
publication of the libel.

Judgment reversed, and a venire de novo awarded.



M'Call against Lorimer.

Whether a tract of land is seated or unseated, and has been assessed, taxed
and sold by the treasurer as such, must depend upon the records of the commis-
sioner's office, and not upon parol testimony as to the fact, or the private dupli-
cate of an assessor.

ERROR to Butler county.

The plaintiff, Archibald M'Call, gave in evidence a regular title
from the commonwealth to the land in dispute : the defendants, the
heirs of Alexander Lorimer deceased, claimed title by virtue of a sale
for taxes by the treasurer. The records of the commissioner's office
did not show that the land had been assessed and taxed as unseated;
but they offered to prove by Moses Hanlin, that " he was the assessor
for 1814, and took down four hundred acres from the preceding du-
plicate: he called at Lorimer's house and he was from home, and then
put down in the seated list four hundred acres: ihe ne*xt week he
saw Lorimer, who told him he would not pay for more than two
hundred acres : that he then altered the assessment in his own dupli-
cate, charging him with two hundred acres in the seated and two hun-



352



SUPREME COURT [Pittsburgh



[M'Call v. Lorimer.]

drecl acres to Nicholas Day in the unseated list: that he returned
the one he got from the commissioners to the office and did not know,
until he saw it in court, but what he had altered it also." The
plaintiff objected to this evidence on the ground that the assessment
of unsealed land cannot be established by parol evidence, and which,
in thi instance, goes to contradict, the written evidence of assess-
ment ; but the court overruled the objection, and the testimony was
given The defendants then offered in evidence the private dupli-
cate of Moses Hanlin, which he kept; the private duplicate of the
supervisors, and their assessment of road taxes ; the l.st of lost taxes
returned by the collector into the commissioner's office ; the record
of an agreement between John Lorimer and Nicholas Day ; Hie sale
book of the commissioners ; the surplus bond of Edward Duffy ; and
a deed from Hugh M'Kee, treasurer to Edward Duffy, for two h
dred acres, part of John Lorimer's tract," dated the 1 1th of August
1817 This evidence was objected to by the plaintiff; but the court
overruled the objection, and the evidence was given,
a verdict for the defendant.

The errors assigned were, in admitting the evidence mentioned
the first and second bills of exception.

Evans and Ayres, for plaintiff in error, cited Birch . Fisher, 13
Sere. &> Rawle MS; Wain . Shearman, 8 Serg. $ Rawle 368
Bind JT Ramsay, 9 Serg. 4* fiawfc 109; Cox v. Grant, 1 Yeates 1
Stewart . Shoenfelt, 13 Serg. fy Rawle 3QI.

Sullivan, for defendant in error, cited, Parker v. Loughborough,
10 Serg. # Rawle 249 ; Hubley v. Keyser, 2 Penns. Rep. 501.

The opinion of the Court was delivered by
HUSTON, J. Ten years ago we find in 13 Serg^ $ Rawle 3
the case of Stewart ^Shoenfelt, the first case in Pennsylvania m
which a purchaser of a tract of land sold for non W ni ***>
succeeded in holding the land. This was also the first reported de-
cision under the act of the 13th of March 1815 We seem now to
have come to the opposite extreme, and to doubt whether m any
case, under any circumstances, a title under a sale for axes can be
invalid. Under the provisions of the former acts, no sale had been
held valid ; because some one thing in the process of Assessment 01
sale had been omitted or done irregularly ; or, if all had
regularly, some of the evidences of regularity, though cveiy body
new they existed a few weeks before the trial, yet, at the trial, weie
not found" This state of things led to the act of i^whic^among
other things, provided, " that if the owner of land sold for taxes shall
with ntw g y e P arsaf te ,- such sale make a tender of the amount of
axes for which the land was sold, and costs with the ^d.tional
sum of twenty-five per cent on the same, to the county treasurer
who is hereby authorized and required to receive the same, and pay



Sept. 1835.] OF PENNSYLVANIA. 353

[M'Call T. Lorimer.]

it over to the said purchaser on demand ; and if it shall be refused
by the said treasurer, or in case the owner or owners of land so sold
shall have paid the taxes due on them previously to the sale, then,
and in either of these cases, said owner or owners shall be entitled
to recover the same by due course of law ; but in no other case, and
on no other plea shall an action be sustained :" and " that no alleged
irregularity in the assessment, or process, or otherwise, shall be con-
strued or taken to affect the tide of the purchaser; but the same shall
be declared to be good and legal." This act does not purport to lay
down an entire system ; it does not alter the jurisdiction of the com-
missioners, or extend their authority to sell for unpaid taxes any
other than unseated lands ; lands on which a person is residing are
as much exempt from sale by a treasurer as before the passing of this
act; so too the treasurer is authorized to'make sale of the whole or
any part of such tracts of unseated lands, situate in the proper county,
as will pay the arrearages, any part of which shall have remained due
and unpaid for the space of one year.

Taxes cannot be due unless they have been assessed. Words
and names often mislead. There is in each township of every
county an officer called the assessor ; and it is too often assumed
that he assesses the taxes. By the act of the llth of April 1799
for raising county rates and levies, it is thus directed

Section seven. The commissioners shall make an estimate of the
probable expense of their county for the ensuing year, and issue their
precepts to the respective township assessors, requiring them to make
a just and perfect return of the names of all persons within their wards,
townships or districts, and of all property made taxable by this act,
within thirty days after the date of such precept, together with a
just valuation of the same ; and on the receipt of such return the com-
missioners shall proceed to quota the townships agreeably to the
quantity and quality of the land and other taxable property ; and
when they shall have completed and ascertained the quotas of each
township, shall cause accurate transcripts of such assessments to be
made out by their clerk, and transmit them to the ward or township
assessors. It then directs notice to be given of the time and place of
appeal, at which appeal a board of commissioners shall attend, and
hear all persons who may apply for redress, and grant, such relief to
them as may appear just and reasonable.



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 4) → online text (page 41 of 60)