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a mortgage throughout. But it seems to me clear that it is only he
who has the title to the land, that on the one hand could redeem, or on
the other hand fix the price or value of the farm for a sale. It could
not be that these rights should remain in W. Paull when he ceased
to have a resulting interest in the land of any kind. They belonged
to the person that had the title to the land, who in this instance was
the plaintiff, James Paull, Jun., unless he renounced them expressly
and clearly, which he does not appear to have done.

What were the rights of the parties, however, under these agree-
ments it is unnecessary to inquire, because the plaintiff is not bound
by them further than he had agreed to ratify them. They were
made, so far as appears, without his knowledge or assent at the time,
and derive their efficacy as to him only from his contract of the 30th



Sept. 1834.] OF PENNSYLVANIA. 123

[Paull v. Mackey.]

of March 1822, by which alone his obligations and the rights of the
defendant are to be determined. The circumstances that led to this
contract were as follows.

On the 15th of December 1821, a week after his deed, the plaintiff
had leased to one Campbell, for five years from the 1st of April en-
suing, and covenanted to deliver possession. He also gave notice to
Mackey to quit. Before the 1st of April, however, it appears the two
parties became aware of the conflict likely to arise between them
from the previous acts of W. Paull. J. Paull perceived that W.
Paull had come under engagements to Mackey and placed him in
possession, by which his own agreement with Campbell would be
frustrated, and he be subjected to an action by Campbell for breach
of covenant. To prevent this the agreement of the 30th of March
1822, between plaintiff and defendant, is made. It purports to recite
the agreements between W. Paull and Mackey, as represented by
Mackey; and the representation of the plaintiff as to his title and his
ignorance and the difficulty he had got into with his tenant. I con-
sider J. Paull, Jun. as bound by the agreements only as thus repre-
sented. It does not appear that the draft of the 15th of December
1821 was shown to him ; nor does the language used warrant that sup-
position. On the contrary it is the representation of Mackey of the
agreement that J. Paull is here bound by, and no more. And in this
what relates to the conditional purchase clause is so incongruous and
unintelligible, that it is impossible to give it any definite meaning.
At the same time I am of opinion that, if recited clearly, the acts
done by W. Paull afterwards, would not vary the rights of the par-
ties, for the reasons I have already stated.

The true construction of the agreement of the 30th of March, and
the clause of relinquishment by the plaintiff in its close, appears to
be, that the plaintiff, in oonsideration of the defendant's agreeing to
take Campbell as his tenant, agrees that Mackey should hold the
land until, out of the rents and profits or otherwise, he was reimbursed
clear of all just charges and expenses; in the first place, the debt due
to him by the late firm of Paull and Brownfield, on all or any of the
notes of hand to him given, and next the debt due to him by W.
Paull for articles of agricultural produce of the kind mentioned, viz.
grain and meat furnished to W. Paull either before or after the 30th
of March 1822, while W. Paull carried on the iron works. And that
whatever Mackey can prove to be due to him on these accounts
must have been paid before he can be ousted from the possession.
We are further of opinion that Mackey had no right to hold this tract
against the plaintiff for the purpose of paying off the debts of Paull
and Brownfield to other creditors of theirs, as it would seem is con-
tended by Mackey and these creditors under some verbal agreement
or understanding at some period or other amongst them. No such
right is stipulated in the agreement of the 30th of March 1822, nor
even in the sketch of the 15th of December 1821. It cannot be



124 SUPREME COURT [Pittsburgh

[Paull v. Mackey.]

tacked to the mortgage by parol, and is in no way binding on the
plaintiff.

Having thus noticed the more material points of this case, I shall
proceed to consider the rest under the various heads which present
themselves in the record.

The first error relied on by the plaintiff in error, is that contained
in the second bill of exceptions, the admission by the court in evidence
of the certificate of William Paull, dated the 25th of November 1822,
that he had that day settled with the defendant and found in all their
accounts, say debts and sureties, a balance of 3000 dollars due him,
which he is to have a credit for on account of the farm he had pur-
chased of him. This certificate was certainly not evidence against
the plaintiff in this suit. The debts due to Mackey must be shown
by the usual evidence of their existence, not by the certificate of W.
Paull, after he had ceased to do business. This certificate was fur-
ther objectionable in purporting to authorize a credit for " sureties,"
a class not within the contract of the 30th of March 1822, and also
in fixing a purchase as having taken place, when W. Paul! had not,
after the deed to plaintiff, any interest in the land, and had nothing to
do with any purchase or sale of it. There was error therefore in
receiving this certificate in evidence.

The next error assigned is in the third bill of exceptions to the
agreement, dated the 28th of May 1823, between W. Paull and
Mackey, by which W. Paull agrees to fix the price of the farm
(which it states he sold to Mackey some time ago) at 2500 dollars,
and Mackey on his part agrees to let, the price be so fixed. This
agreement was, for the reasons I have stated, of no validity whatever
against the plaintiff. The right of fixing the price, and the right of
making sale of the property, belonged to the plaintiff as the owner
of it, after it had answered the purposes for which it was placed in
the defendant's possession, namely the payment of debts : and W.
Paull, in undertaking thus to dispose of it under the agreements be-
tween him and Mackey, acted without authority and could not bind
the plaintiff. There was error therefore in receiving this evidence.

The fourth bill of exceptions is to the admission of William Nixon
as a witness for the defendant. This witness declared on his voir
dire, that he had a debt against Paull and Brownfield, which Mackey
was to pay in case of his success. It was also proved by Brownfield
that Mackey, in consideration of getting the Cold Spring tract, was
to pay the debts of the firm of Paull and Brownfield : that this agree-
ment was made in June 1821 or later, after the dissolution of the
firm. Nixon further stated that Mackey never made any promise to
him. It would seem therefore that Nixon, in giving evidence to pro-
mote the success of Mackey, was aiding to preserve a fund for the
payment of his own debt, which fund he will lose if the plaintiff re-
covers. He has therefore a direct interest in the defendant's success
in making out a title to this tract of land, since on that the payment



Sept. 1834.] OF PENNSYLVANIA. 125

[Paull v. Mackey.]

of his debt by Mackey depends. There was error therefore in his
admission to testify on behalf of the defendant.

The fifth, sixth and seventh bills of exceptions embrace evidence
offered by the defendant and admitted by the court, to show acts
and opinions and declarations of the plaintiff going to prove that
he had rescinded his contract with William Paull, and abandoned
the title acquired under his deed. If a title by deed could be divest-
ed by proof of this kind, real estate would be held by a very loose
tenure indeed. Let it be supposed that a party having a complete
title should think he has no right, and under this impression seek to
strengthen it by acquiring additional muniments ; or being mistaken
in a question of law of difficult solution, should declare he had no
title: would evidence of all this take away his 11116] Unquestion-
ably not: this evidence would leave things just where they were
before : the written title remains. It is to guard against such modes
of settling questions of title to real estate that the act of assembly of
1772, for the prosecution of frauds and perjuries, expressly forbids
parol grants, assignments, or surrenders of interests in land. It was
improper therefore to receive the evidence contained in the deposition
of J. B. Trevor of the plaintiffs procuring an assignment of a judg-
ment against William Paull, under the idea that it was a lien against
his interest in the tract in dispute, with directions to levy on it. So
also the plaintiff's claiming the St John's Furnace was irrelevant to
the question of his title to the Cold Spring land, under his deed. He
might really remain the owner of the St John's Furnace lands, &c.
because William Paull had not complied with his contract ; or he
may since have acquired another title to it ; or he might have mis-
taken his right in contracting to sell it. Its introduction in this cause
could only embarrass by leading into a trial of the plaintiff's title to
St John's Furnace, a matter irrelevant to the issue trying ; or present
a fact of doubtful complexion, from which the strongest inference
that could be drawn would be that the plaintiff supposed he had a
title to the Furnace lands, and contracted to sell them an inference
of no consequence in this suit. I am therefore of opinion that the
court erred in receiving the evidence objected to in the fifth, sixth
and seventh bills of exceptions.

The eighth, ninth and tenth errors assigned are embraced in the
former part of this opinion, and need not be again referred to.

Judgment reversed, and a venire facias de novo awarded.



126 SUPREME COURT [Pittsburgh



Dorinan against The Turnpike Company.

A plaintiff in error will not be permitted to avail himself of a point not made
in the court below.

An award, if defective because of an irregularity in the meeting of the referee,
is cured by the subsequent appearance of the parties, though under a saving of
exceptions.

WRIT of error to the court of common pleas of Alleghany county.

The Pittsburgh and Steubenville Turn pike Road Company brought
this action against George A. Dorman, the plaintiff in error, for tolls
incurred by him whilst a stage proprietor. The declaration was in
assumpsit, and set forth in the first count, that the defendant was in-
debted in the sum of 600 dollars for tolls and duties due and of right
payable by him to the plaintiffs for the passage of his stages and
carriages over the road, which the plaintiffs, by their name of incor-
poration, repaired and supported ; and being so indebted undertook,
&c. to pay, &c. The second count alleged, that in consideration of
being indebted in the further sum of 600 dollars for other tolls due
and payable, according to the form of the statute, at certain turnpike
gates, duly erected upon the road of the plaintiffs, for other stages
and carriages of the defendant which had travelled over the road and
through the said gates; and being so indebted, the defendant under-
took, &c. to pay, &c. Damages were laid at 1000 dollars. The
defendant pleaded non assumpsit and payment.

On the 28th of May 1830 the case was submitted to M. B. Low-
rie, esquire, an alderman, to ascertain the amount due. Upon his
report, judgment to be entered by the prothonotary without excep-
tion or appeal. To meet on the third Monday of June following at
Mr Lowrie's office. No meeting however took place on that day
before the referee : and on the 18th of December 1830, on motion in
court, the blanks in the order were filled with the 12th day of Janu-
ary 1831. On that day, the attorneys of the parties being present,
some testimony was taken before the referee, and the further hearing
of the case was continued till the 16th of February 1831. On that
day, the attorneys of both parties again being present, some further
evidence was taken, and the case was again continued till the 1st of
March 1831. On that day, A. Johnston attending on behalf of the
Company, and no further testimony being offered, the referee found
and reported the sum of 283 dollars 6 cents in favour of the Com-
pany.

To these proceedings before the referee, the attorney of the defen-
dant, on the 12th of January 1831, which was the day fixed by the
court for the meeting, filed exceptions, as follows :



Sept. 1834.] OF PENNSYLVANIA. 127

[Dorman v. The Turnpike Company.]

" W. W. Fetterman, attorney of George A. Dorman, the defendant,
protests against the referee going on to try the cause, inasmuch as
his authority is determined; and reserves to himself the right of
making and insisting on this objection at any time hereafter."

An affidavit was at the same time made by him before the referee,
as follows: "W. W. Fetterman, being sworn, says, that on the third
Monday of June, for the purpose of trying this case, Mr Collin and
other witnesses of the defendant being here ready for trial, and the
referee not being present, they, after waiting during that day, re-
turned home."

The errors assigned were the following:

1. The proceedings of the referee, he not having met on the day
appointed, and of the court fixing a new day without consent, and
the award and judgment were erroneous.

2. That the company have no right to recover in an action of
assumpsit for tolls, or for damage done to the road.*

Fetterman, for plain tiff in error.

After issue was joined in this case, it was submitted to the referee
to ascertain the amount due. The referee did not meet on the day
appointed. There was no power by the terms of the submission to
adjourn ; but nevertheless there was an adjournment, against which
we protested because it was irregular. Inasmuch as he did not pro-
ceed on the third Monday of June 1830, his authority was revoked.
Abbott v. Pinchin, 1 Doll 349; Allen v. Watson, 16 Johns. Rep. 205;
2 Petersd. Jib. 121, 122; Russel v. Gray, 6 Serg. < Reticle 145; An-
derson's Executors v. Long et al., 10 Serg. <$ Rawle 55; Stout et al.
v. The Commonwealth, 2 Rawle 341 ; Wier v. Johnston, 2 Serg. fy
Rawle 459 ; Moyer v. Kirby, 14 Serg. fy Rawle 162. Then as to the
second error, there was no evidence of an express assumpsit by the
defendant; and this court has decided that turnpike companies can-
not recover tolls on an implied assumpsit. 2 Penns. Rep. 462.

Burke, for defendant in error.

There would be but little difficulty in this case if the record had
been fully copied. The case was called for trial. The defendant
was not ready. It was then submitted to the referee merely for the
purpose of ascertaining the amount due. This amounted to an ad-
mission by the defendant that there was an express assumpsit. At
the time of the submission, it was agreed in open court that another
day should be fixed in case of the referee's absence on the third Mon-
day of June. The opposite counsel has forgotten that this promise
and application were made to the court below, who fixed the 12th
of January 1831 for the next meeting, under a full recollection of
the agreement. It was an order which the court below had discre-
tionary power to make ; but is not the subject of a writ of error.
There are numberless points arising in the course of a suit which
cannot be reviewed. Clason v. Shotwell, 12 Johns. Rep. 49. It was






128 SUPREME COURT [Pittsburgh

[Dorman v. The Turnpike Company.]

held no ground to revoke the authority of arbitrators that notice was
not given fifteen days before meeting. Brown v. Brashier, 2 Penns.
Rep. 114; Whart. Dig. 257. There was no objection filed to the
report of the referee, which it was incumbent on the defendant to
have done. Kline v. Guthart, 2 Penns. Rep. 490; Andrews v. Lee,
3 Penns. Rep. 99. Witnesses on both sides were heard before the
referee. Several meetings took place before him, and the attorney
of the defendant below attended and examined witnesses. This was
a waiver of all irregularity, and of any objection to the proceedings
of the court.

Mr Burke was proceeding to argue the second error when he was
stopped by the court.

Fetterman, in reply.

There was no agreement made before the court below, except
what appears on the record. The order of the court was an unau-
thorized assumption of power. Where was the authority for direct-
ing, that after the submission expired, we should again appear before
the referee? Can a party thus be forced by the court to a reference 1 ?
The court below possessed no such power ; and the order which was
made, is clearly the subject of a writ of error. Suppose an action of
debt depending, in which the court below improperly direct judgment
to be entered, would not the judgment be subject to reversal on the
ground of a want of authority? The entry of a judgment upon the
confession of an attorney, would be an act of the court, which could
be reviewed on a writ of error. Kid on Aw. 47, 60. To justify such
an order as was made by the court in this case, the consent of the
parties must appear on record. Our protest against the proceedings
was made in consequence of the decision of this court, that such an
action could not be sustained.

PER CURIAM. In the Turnpike Company v. Brown, 2 Penns.
Rep. 462, it was held, that the law implies no promise to pay tolls
for the use of a turnpike; but it was not intimated that an express
contract to pay tolls, OF any other stipulated sum, is not binding.
Such contracts are of daily occurrence ; and it would be not only a
misconstruction, but highly inconvenient to hold them to be incon-
sistent with the regulations of the charter. Here a promise is ex-
plicitly laid ; and whether it were express or implied, being matter
of evidence and not of pleading, can not be told from the record,
since every promise is laid according to its legal effect, and conse-
quently in the same way. If the point therefore be not made at the
trial, it cannot be made on a writ of error, by an allegation that the
plaintiff had not shown a cause of action ; for such an allegation
must be contradicted by the record. As to the assignment of a new
day for the hearing, the defect, if it were one, was cured by the de-
fendant's appearance, though under a saving of exceptions. It was
open to him to refuse to go on, or to waive exception ; but not to






Sept. 1834.] OF PENNSYLVANIA. 129

[Dorman v. The Turnpike Company.]

take the benefit of an actual defence, and yet give an exparte charac-
ter to the proceeding. He thought proper to go on, and he is con-
cluded by his election.
Judgment affirmed.



M'Dowell against Simpson.

An agent is a competent witness to prove his own authority.

A lease of land in writing for seven years, by an authorized agent, may be
ratified by the owner; but to avoid the effects of the statute of frauds and per-
juries, that ratification must be in writing ; a parol ratification gives to the
tenant an estate at will, and if it continue more than one year, an estate from
year to year, of which he cannot be dispossessed, but upon having received three
months notice to quit.

ERROR to the common pleas of Jllleghany county.

This was an ejectment for part of lot No. 219, on Wood street, in
the city of Pittsburgh. The plaintiff, Andrew N. M'Dowell and
wife, claimed to recover the possession of the property, as heirs of
William Porter deceased, by virtue of certain proceedings in partition,
in the common pleas of Alleghany county, instituted on the 17th of
August 1829, and perfected on the 25th of April 1831, between
them and the other heirs of William Porter, viz. Alexander Brack-
enridge and wife, Samuel Smith and wife, and William A. V. Magaw
and wife. By these proceedings the property in dispute was assigned
to the plainiiff.

On the trial of the cause, Alexander Brackenridge was offered as
a witness on behalf of the defendants, and objected to by the plain-
tiff. The objection was overruled by the court, and the witness ad-
mitted ; to which the plaintiff's counsel excepted.

The witness then testified that he was the only heir residing in
Pittsburgh. On the 1st of April 1824, without any power of attor-
ney, he renewed leases for a term of three years for the property
which then was, and continued until the 25th of April 1831, to be
held in common amongst the heirs. He collected the rents as they
became due. On the 1st of April 1827, he again, without any power
of attorney or instructions, renewed the leases for three years. This
was acquiesced in by the plaintiff, to whom the witness always remit-
ted his share of the rents, keeping with him a regular account. On
the 1st of April 1829 the witness renewed leases for the property for
one year. As the 1st of April 1830, when these leases were to expire,
approached, he made a proposition to all the heirs, and, by letter
dated the 14lh of January 1830, to the plaintiff, to build upon the
property jointly, or to give a lease of it for seven or ten years; and, in

III. R



130 SUPREME COURT [Pittsburgh

[M'Dowell v. Simpson.]

case they should conclude to build, that a lease for one year had
better be given in order to make arrangements. To this proposition
he received no positive answer from the plaintiff; who agreed, how-
ever, by letter dated the 19th of February 1830, to the suggestion
to rent for one year. The witness, considering that this reply to
his proposition amounted to no specific instruction, that as a part
owner of the property he was entitled to an answer to the whole of his
proposition, and that every thing stood in the same position as before,
then executed on the 1st of February 1830 a lease under seal for
seven years to John Wallace, under which the defendants now claim
to hold possession, and which was signed by him as " Attorney for
William Porter's heirs." He leased without exhibiting any authority
to the tenants, who took it for granted that he possessed it. The plain-
tiff removed to Pittsburgh during the summer of 1830, where he has
resided from that time up to the present. The witness went on as
usual, collecting the rents as agent for all the heirs, which he paid
over from time to time without keeping a particular account, some-
times taking a receipt for the same, and sometimes not. He had
also charge of a judgment against Anthony Bulen, owned by the
heirs. On the 17th of September 1830 the plaintiff gave him a
general receipt for 200 dollars on account of this judgment, Under
the old leases the annual rent of the property was 476 dollars 50
cents; under the new lease for seven years, 801 dollars 62 cents.
On the 3d of December 1831 the plaintiff gave the witness a general
receipt for 265 dollars 92 cents, who did riot know whether the plain-
tiff was aware at what rate he was receiving rent. In December
1831 the witness left a general account of rents and moneys paid
and received in the course of his agency, at the office of the plaintiff.
The witness had conversations with the plaintiff as to the dissatis-
faction which Magaw, another heir, had expressed about the lease
for seven years. The plaintiff then expressed no dissatisfaction on
his part about the lease, of which he seemed to have a knowledge.
The witness had informed the plaintiff of the lease by letter directed
to Lewistown or Harrisburg, to which, however, he received no an-
swer from the plaintiff. The witness distrusted his own authority
to make the lease, but relied upon the acquiescence of the other
heirs. He became aware that Magaw was, and then expected that
the others would also be, dissatisfied. Since the trial with Magaw,
the witness discovered that the plaintiff was not satisfied about the
lease, although he had never expressed dissatisfaction to the witness.
The witness never told the plaintiff of the lease, but conversed with
him repeatedly about it as a matter existing.

Dr Samuel Smith, one of the heirs, testified, that he removed to
Pittsburgh on the 1st of November 1830. The first time the plain-
tiff mentioned to him the lease for seven years, the plaintiff expressed
his astonishment that it had been executed. The increased rent
was never a subject of conversation between them. The plaintiff
uniformly expressed to the witness his determination to have posses-



Sept. 1834.] OF PENNSYLVANIA. 131

[M'Dowell v. Simpson.]

sion of the property as soon as the partition should be confirmed,
thinking it useless to proceed until then. The witness was satisfied
that the plaintiff, who lived with him at Lewistown at the time,
never received a letter apprising him of the lease for seven years.



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