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(Long and another v. Laufman and others, Commissioners of the County of Franklin.)

cessary, and would be too expensive for the township or townships to erect; which being entered of record, it becomes the duty of the commissioners to procure an estimate, &c. of the money which will be necessary to erect such bridge, and the commissioners of the county shall provide the same out of the county taxes, and proceed forthwith to have such bridge erected by contract, or otherwise, as shall seem to them most expedient. If they have the power, it is by implication, as it is not expressly granted in the act. The authority of the commissioners is very extensive in relation to this matter. They have a discretion, which seems to have been well exercised, as no objections have been made by the county. It comes with a bad grace from the defendants, who were as well aware of the defect of power, if any existed, as the commissioners. They have received their money under the contract, and wish to avoid it, when sued for on breach of their agreement.

The report of the viewers, as mentioned in the fourth exception, is no sufficient answer to this action. It was left by the court, as a persuasive fact for the jury, but not as conclusive of their right; and in this direction there was no error. The burden of proof was on the plaintiffs, who were bound to satisfy the jury, that there was a defect in the construction of the bridge. We concur in opinion with the Court of Common Pleas, that the bridge not being on the public highway, does not render the contract void. If the jury were satisfied, as it appears they were, that it was built near enough to the public road on which it was intended it should be erected, for the public convenience, it is sufficient for the maintenance of this suit, without changing the route of the road, as prescribed by the act of assembly of the 1st of March, 1815.

Judgment affirmed.

[CHAMBERSBURG, OCTOBER, 20, 1828.]

GREENFIELD and another against YEATES and others, for the use of the Directors of the Poor, &c. of Franklin County.

IN ERROR.

A bond given to A. and B., who were directors of the poor, may be sued in their names for the use of the directors of the poor, though they constituted a body corporate.

Where a bond is directed by statute, to be taken by a corporate body, but no form is prescribed, it is good, though taken in the name of individual members, as obligees.

ERROR to the Court of Common Pleas of Franklin county.

The opinion of the court was delivered by

ROGERS, J.-It is admitted, that at the date of the bond, on which suit is brought, the plaintiffs, Thomas Yeates, Jacob Heck, and Andrew Thompson, were directors of the poor and house of employment, for the county of Franklin. But it is contended, that being incorporated by the act of assembly of the 11th of March, 1807, the suit should have been brought in their corporate name, and not in the name of the obligees, for their use. Without saying, whether a suit brought in that form, might not have been sustained, (of which there may be some doubt,) we are clearly of opinion, this action may be supported, upon the principles stated in Long et al. v. Laufman et al., decided at this term. It is the contract of the defendants, and it is not for them to complain of a suit which has been entered in strict conformity to their agreement; volenti non fit injuria. The only difference between the cases is, that in Long v. Laufman, the bond was given to the commissioners for the time being, and to their successors, and in this it is to the directors individually, without binding themselves to their successors in of fice; although the whole contract shows, it was for the benefit of the corporation, for whose use this suit has been brought.

The next objection goes to the bond, which it is contended, is void; because, it is not taken in their corporate name. In the fourth section of the act of assembly of the 11th of March, 1807, they are incorporated by the name of, The directors of the poor and house of employment, of the county of Franklin, and are directed to appoint a treasurer annually, who shall give bond, with sufficient surety for the faithful discharge of the duties of his office. Although the bond is ordered, yet the form is not prescribed; and I am unwilling to believe, that where the provisions of the act of assembly have been substantially complied with, it avoids the bond. And this seems to be the distinction in Armstrong et al. v. The United States, 1 Peters' Rep. 47. "Where a bond, required by a statute,

(Greenfield and another v. Yeates and others, for the use of the Directors of the Poor, &c. of Franklin County.)

is taken, it ought to conform in substance at least, to the requisitions of the statute; and if it go beyond the law, it is void, at least, as far as it exceeds those requisitions." And in The Bank of the Northern Liberties v. Cresson, 12 Serg. & Rawle, 314, inasmuch as the statute did not prescribe the form of the bond, a variation from the requisitions of the statute, was held, not to avoid the contract. And the case was illustrated by a decision which had been had on the statute, 23 Hen. 6, restricting bail bonds to be taken by sheriffs. The nature and form of the security are given by statute; it is to be by bond, and, therefore, an agreement in writing, made by a third person, is void; because, the statute giving the bail bond, declares," that if the sheriff takes an obligation in any other form, it shall be void; but if a bond is given to the plaintiff in another form than that which the statute prescribes, it is valid." 12 Serg. & Rawle, 314. 2 Saund. 60, a. No. 3.

It would appear to be reasonable, that corporations should have the same power as individuals, and in such case, a bond, taken in the name of another, is good; and where the interest appears, it is protected by the court. Besides, if the corporation cannot recover on the ground that the instrument is void, the same rule must apply where they are defendants. In Pennsylvania, bank bills are not always taken in the name of the company. It would be dangerous to establish a principle, which would cut the banks loose from such contracts.

Judgment affirmed.

[CHAMBERSBURG, OCTOBER 28, 1828.]

| HERBAUGH, Assignee of ZENTMYER, against ZENT

MYER.

IN ERROR.

A father agrees to convey land to his son for the sum of six thousand dollars, with certain reservations; by one of which, the son engaged, for himself and his assigns, to give to his father yearly, and every year, twenty bushels of wheat, twenty bushels of rye, and twenty bushels of corn; also, two good loads of hay, &c. A conveyance is made, referring to the articles, and possession taken by the son. Held, on a purchase of the son's estate at sheriff's sale, that this is a rent, and the covenant to pay it runs with the land, and binds the vendee.

ERROR to the Court of Common Pleas of Franklin county.

The opinion of the court was delivered by

ROGERS, J.-This is a clear case. Christopher Zentmyer, by articles of agreement, agreed to convey to his son, Daniel, a tract of land, for the sum of six thousand dollars, with certain reserva

(Herbaugh, Assignee of Zentmyer, v. Zentmyer.)

tions, and among others the following:-"The said Daniel Zentmyer engages to give to his father, Christopher Zentmyer, yearly, and every year during his natural life, and the life of his wife, Barbara, twenty bushels of wheat, twenty bushels of rye, and twenty bushels of corn; also, two good loads of hay, &c." The article of agreement, which covenants for Daniel and his assigns, was carried into effect, and possession delivered by deed, in which there is a reference to the article. Where a covenant refers to a preceding instrument on which it is founded, that instrument shall determine the covenant. George v. Bucher, 2 Vent. 140. The plaintiff in error was the purchaser of Daniel's interest, at a sheriff's sale, and the question is, whether, as the legal assignee of the land, he is bound by the covenant in the article. When we ascertain the nature of the covenant, the question becomes one without difficulty. I look upon it as a covenant to pay a rent in kind. Rent is defined by Lord Chief Baron GILBERT, to be an annual return, made by the tenant, either in labour, money, or provisions, in retribution for the land that passes. Gilb. on Rents, 9. 2Cruise on Real Property, sect. 2, title Rents, p. 307. And the rent may well be reserved on a conveyance of the fee simple. 2 Cruise, 310. It is a rent which issues out of the thing granted, and not a part of the thing itself. It is part of the annual profits. If this, then, be a rent, it is a covenant running with the land, and the defendant is clearly liable; for upon such covenants, which concern real property, or the estate therein, the assignee of the lessee is liable to an action for a breach of covenant, after the assignment of the estate to him. 1 Chitty, 36. 3 Wilson, 25, 29. There is the privity of estate, which is sufficient to maintain the suit. Covenants against assignees are of three kinds. Where the covenant relates to, and is to operate on a thing in being, parcel of the demise, the thing to be done, by force of the covenant, is quodammodo, annexed to the thing demised, and shall go with the land, and bind the assignee to the performance, though not named. As, if the covenant is to repair a house then demised, and I may add, to pay rent, this shall bind the assignee, though not named. But it is otherwise, where the covenant relates to a thing not in being at the time of the demise; as, if it had been to build a brick wall on the land demised, this not being in esse when the covenant was made, it shall not extend to the assignee, if not named. But if the covenant mentions the assignee, as, if the lessee covenants for himself and his assigns, then the assignee shall be bound by every covenant, for any thing to be done in the thing demised; as, to build a wall on the thing demised; but to any thing which is merely collateral, as, to build a house on some other land, then the assignee shall not be bound, though he is named. So, when the contract is for the benefit of the estate, or to support it, it shall not bind the assignee, though not named. Spencer's Case, 5 Rep. 16. Bally v. Wells, 3 Wilson, 26. Cockson v. Cock, Cro. Jac. 135. Dean v. Chapter

(Herbaugh, Assignee of Zentmyer, v. Zentmyer.)

of Windsor's Case, 5 Co. 24. Pollard v. Shaaffer, 1 Dall.

210.

George Herbaugh is the legal assignee of Daniel Zentmyer, and as such, he is bound to pay the rent, which is a covenant running with the land, upon the principles above-stated. It would be a matter of regret if the law were not so, as otherwise, a father would be prevented from securing a provision for himself, and at the same time advancing his children. There is no pretence, but that this was a fair family arrangement, to which the parties interested made no objection, as is manifest, by the substitution of the judgments against Daniel Zentmyer, in lieu of those which had been rendered against the father, Christopher Zentmyer.

Judgment affirmed.

[CHAMBERSBURG, OCTOBER 30, 1828.]

STAMBAUGH against YEATES.

IN ERROR.

After a Fieri Facias, levied on land and returned, grain was sown on it; another creditor levied on the grain and sold it, and afterwards the land was sold on a Venditioni Exponas, issued on the first Fieri Facias. Held, that the creditor who levied on the grain, had the right to hold the proceeds.

WRIT of error to the Court of Common Pleas of Franklin county. Crawford, for the plaintiff in error.

Chambers, contra.

The opinion of the court was delivered by

HUSTON, J.-It was admitted on the trial of this cause, in the Court of Common Pleas, that Robert Yeates had duly obtained a judgment against John Kyrne in the Court of Common Pleas of Franklin county, and issued a Fieri Facias to August Term, 1824, which was levied on a tract of land. A Venditioni Exponas issued to November, 1824; and an Alias Venditioni Exponas to January Term, 1825, on which the land was sold to Robert Yeates, and a deed duly executed by the sheriff. On the 4th of April, 1825, Yeates entered into possession of the land. But in March, 1824, a judgment had been obtained by the administrator of Wilson, against John Kyrne, before a justice of the peace. Special bail was entered, and when the stay of execution had expired, an execution was taken out and levied in November, 1824, on the half of fourteen acres of wheat in the ground, being the share of John Kyrne, the landlord. It was sold for fourteen dollars and fifty cents to Stambaugh. The proof was, that the grain was put

VOL. II.

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