[Roush v. Walter.]

Swineford and Lashel, for plaintiff in error, cited 14 Serg. & Rawle 71; 3 Smith's Laws 70. 113; 3 Serg. & Rawle 276; Str. Purd. 737; 17 Serg. & Rawle 101; 1 Watts 14; 16 Serg. & Rawle 414; 1 Binn. 38; 1 Serg. & Rawle 298.

Slenker and Merril, for defendant in error, cited 8 Serg. & Rawle 211; 4 Dall. 249; 3 Serg. & Rawle 273; 3 Penns. Rep. 180; 3 Watts 330; 8 Watts 407; 1 Watts 71; 1 Com. Dig. 420; 2 Saund. Pl. Ev. 203; 4 Rawle 9; 4 Watts 440.

PER CURIAM.-Though there was conflicting evidence at the trial, it is not now to be asserted that the dam was not constructed according to the requisition of the statute; for the jury were directed to find for the plaintiff if they should be of opinion that it was not. The principle which results, and it is perhaps the only one, is that the defendant is not to be held answerable for a loss which he could not foresee or prevent; as was ruled in the case of the Lehigh Bridge, 4 Rawle 241, and Bacon v. Arthur, 4 Watts 440. It cannot be pretended that if the shute had been rendered innavigable by the flood or an ark, the defendant would be answerable for damage for it before he had time to repair it; and such was the direction. As to the defendant's advice to attempt the passage at all events, it is obvious that he would not be liable for an erroneous opinion as to the condition of the shute, in an action for a nuisance. The rest was for the jury, who, as to the few and simple principles of law involved in the case, were properly directed. Judgment affirmed.

Maus against Maus.

Upon a scire facias to revive a judgment, with notice to several terre-tenants, a several issue was joined between the plaintiff and each terre-tenant, and a verdict and judgment were rendered against some of the terre-tenants and in favour of others: Held, that they in whose favour the verdict and judgment were rendered, were not entitled to recover their costs from the plaintiff.

ERROR to the common pleas of Northumberland county. Lewis Maus issued a scire facias to revive a judgment against Wm Montgomery, administrator of Philip Maus, deceased, with notice to Joseph Maus, Lewis Maus, Elizabeth Maus, and Philip Strawbridge; each defendant pleaded separately to issue, and a verdict was rendered for the plaintiff for 370 dollars 91 cents, to be levied of the land of Elizabeth Maus, and the jury found for the

[Maus v. Maus.]

defendants Joseph Maus and Philip Strawbridge. Whereupon a judgment was rendered. On motion the court allowed the bills of costs of the defendants Joseph Maus and Philip Strawbridge to be recovered from the plaintiff, and an execution was issued therefor.

Greenough, for plaintiff in error, cited 2 Com. Dig. 249, tit. Costs; 5 Watts 315.

Frick and Bellas, for plaintiff in error, cited 2 Arch. Prac. 287; 8 Taunt. 129.

The opinion of the court was delivered by

KENNEDY, J.-This was a scire facias post annum et diem, sued out upon a judgment at the suit of Lewis Maus against William Montgomery, administrator of Philip Maus, deceased, with notice to Joseph Maus, Elizabeth Maus and Philip Strawbridge, as terre-tenants. The administrator pleaded payment, with leave, &c. The terre-tenants severally pleaded specially;—first, that the several tracts of land, occupied and possessed by them, were not bound by the judgment; because, at the time of its rendition, the said several tracts of land, were severally and respectively held by them in fee, discharged from all lien, on account of the debt therein mentioned, and said to be owing by the intestate to the plaintiff. Secondly, that the intestate in his lifetime conveyed certain land to the plaintiff, in satisfaction of the debt mentioned in the judgment. And thirdly, that the obligation upon which the judgment was obtained, was given voluntarily and without any consideration by the intestate, in his lifetime, to the plaintiff. 5 Watts 315, where these pleas are set out at length. On the trial the jury found a verdict in favour of the plaintiff, for 370 dollars and 91 cents, to be levied of the lands of George Maus, in the possession of Elizabeth Maus, and as to Joseph Maus and Philip Strawbridge, the other terre-tenants, the jury found in their favour. The court rendered judgment upon the verdict for the plaintiff. Joseph Maus and Philip Strawbridge, claimed to have their bills of costs paid by the plaintiff, Lewis Maus, on the ground that the jury had given a verdict in their favour; and in order to obtain payment of the same, made application to the court for a rule against the plaintiff, to show cause, why their bills of costs should not be allowed; which rule was accordingly granted, and afterwards made absolute by the court. In this the plaintiff alleges that the court below erred. At common law no final costs were recoverable by either the plaintiff or the defendant. 2 Inst. 288; Hardr. 152; 2 Tid. Pract. 864. The statute of Gloucester, 6 Ed. 1, 1, sect. 2, first gave plaintiffs a right to recover costs in all cases where they were entitled to recover damages. But this statute only extended the right of recovering costs to plaintiffs. And in no case did a defendant acquire this right, excepting in a writ of right

C.

[Maus v. Maus.]

of ward, writ of error, and writ of replevin, until the passage of the statute of 23 Hen. 8, chap. 15, sect. 1; whereby it was enacted that, "in trespass upon the statute, 5 Rich. 2, debt, covenant, detinue, account, trespass on the case, or upon any statute for an offence or wrong personal, immediately supposed to be done to the plaintiff, if the plaintiff, after the appearance of the defendant, be nonsuited, or a verdict pass against him, the defendant shall have judgment to recover his costs against the plaintiff, to be assessed and taxed by the direction of the judge or judges of the court, where such action shall be commenced or sued, and shall have such process and execution for the recovery of the same, against the plaintiff, as the plaintiff should or might have had against the defendant, in case judgment had been given for the plaintiff." And subsequently other statutes were passed, extending the right of defendants to recover costs, to other cases; but until the passage of the statute of 8 and 9 Wm 3, chap. 11, if one of several defendants had been acquitted, he was not entitled to his costs; the courts construing the former acts to relate only to the case of a total acquittal of all the defendants. Dibben v. Cooke, 2 Strange 1005-6; Queen v. Danvers, 1 Salk. 194; 2 Tidd's Pract. 900. This statute, however, as may be seen by the first section, only extends to cases of trespass, assault, false imprisonment, or ejectione firma, where several persons were made defendants, and enacts that, where any one or more of them shall be, upon the trial thereof, acquitted by verdict, every person so acquitted, shall recover his costs of suit, in like manner as if the verdict had been given against the plaintiff, and acquitted all the defendants. Being thus confined in its terms, to these particular actions, it was held not to extend to actions of trespass upon the case, including trover; 2 Strange 1005; 1 Barnes 139; nor to replevin, 3 Burr. 1284; or to debt on bond against executors, where one was acquitted on the plea of plene administravit preter, 2 Tidd's Pract. 901. And it is perfectly clear, that it does not embrace the case before us, which is a writ of scire facias. And indeed it does not appear, that either plaintiff or defendant was entitled to recover costs in such writ, until this last act came into operation. 1 Stran. 188; 3 East 202. But by the third section of this act, it is enacted, inter alia, that "in all suits upon any writ or writs of scire facias, and suits upon prohibitions, the plaintiff obtaining judgment, or any award of execution after plea pleaded, or demurrer joined therein, shall likewise recover his costs of suit; and if the plaintiff shall become nonsuited, or suffer a discontinuance, or a verdict shall pass against him, the defendant shall recover his costs, and have execution for the same in like manner as aforesaid." But then according to the rule of construction, which governed the statute of 23 Hen. 6, chap. 15, as also the prior statutes giving costs to defendants, the provision of this third section can only be considered as extending to cases in favor of defendants, where there is a total acquittal of them all. Besides, this would appear also to have been what the

[Maus v. Maus.]

legislature intended, otherwise they would have used language similar to that employed in the first section of the act. There is no other English statute in force here, giving costs to defendants in suits of scire facias; and having none of our own, it necessarily follows, that the defendants or terre-tenants, Joseph Maus and Philip Strawbridge, are not entitled to recover costs in this case. The judgment and order of the court below, allowing them costs, and likewise the execution issued therefor, are reversed. Judgment reversed.

Inman against Kutz.

In ejectment upon an equitable title, where the payment of money to the defendant is necessary, to enable the plaintiff to recover, a tender of the amount before suit brought, and bringing it into court on the trial, are sufficient; it need not be the same money, nor need it be brought in upon a rule of court.

In levies of real estate upon execution, more laxity of description is allowed than in deeds of conveyance: it is sufficient if the terms used show what was intended to be levied on; and where doubtful expressions are employed, the construction should be favorable to the plaintiff, to enable him to obtain payment of his debt from the property of his debtor.

When there is any evidence of a fact submitted to a jury, this court will not inquire into the propriety of the verdict; the remedy is in the court below on a motion for a new trial.

WRIT of error to the common pleas of Luzerne county.

This was an action of ejectment by Jacob Kutz against Caleb Inman, for the one-third part of a tract of land, containing 38 acres. Richard Inman died seised of the land, leaving issue, eleven children, of whom Richard, Caleb, and John Inman were three. In January, 1832, upon the petition of Israel Inman, the eldest son, a writ of partition and valuation was awarded, upon which the estate was divided into several parts, of which the land in question, 38 acres, was one, and called No. 2; valued at 70 dollars per acre. Caleb Inman came into court upon the return of the writ, and took this No. 2 at the valuation, and entered into the recognizances required by law to the other heirs, and it was confirmed to him.

Then the plaintiff offered in evidence, an article of agreement, dated 7th Jan. 1833, between Caleb, Richard, and John Inman, produced by defendant on notice of the attorney of plaintiff to Caleb Inman, and in the possession of Caleb Inman, to which offer defendant's counsel objected; whereupon the court overruled the objection, and the defendant excepted.

Agreement then read in evidence as follows:

[Inman v. Kutz.]

Whereas, John Inman, and Richard Inman, have this day bargained and sold, transferred to me their interest, part and parcel of the real estate of Richard Inman, for the purpose of enabling the said John and Richard, in conjunction with myself, to take portion No. 2 in the division of our father's estate, for our joint benefit, and it is understood and agreed, that if the court permit me to take said portion at the appraisement, and demand recognizance to secure the payment of the due proportion of money to the other heirs and legal representatives, and also the widow's dower; then upon the said John and Richard, advancing at all times, their due proportions in money, as the court may order and direct me, then they shall be equally interested in said portion, number two. That is, it is understood, that we hold as tenants in common, in equal proportions; the said Caleb holding the whole as security to cover his advances and liabilities, if any.-Witness my hand and seal this 7th January, 1833.

CALEB INMAN, [L. S.]

The plaintiff then gave in evidence a judgment against John Inman, upon which execution was issued, and the following levy made: "Levied on a tract or parcel of land, situate in Hanover Township, Luzerne county, and state of Pennsylvania, now in the hands and possession of Caleb Inman, and being the heirship of John Inman, in the real estate of Richard Inman." Upon a venditioni exponas the land was sold to the plaintiff for 20 dollars, and a deed made to him by the sheriff, describing the land as in the levy. The recognizance entered into by Caleb Inman upon his taking the land at the valuation, was in the sum of 1600 dollars, conditioned for the payment of 876 dollars 35 cents, to the heirs of Richard Inman, after the death of the widow, the interest of which was to be paid to the widow during her life. The plaintiff then proved the tender of 480 dollars to the defendant before suit brought, and the same sum was brought in on the trial.

The plaintiff then rested, and the defendant, to sustain the issue on his part, gives the following evidence:

January 10, 1833. Deed, Richard Inman and wife to Caleb Inman, being a release for consideration of one dollar, of their interest in real estate of Richard Inman, deceased. Recorded January 12,

1840.

January 7, 1833. Deed, John Inman to Caleb Inman, being a release for consideration of one dollar and other good considerations of interest of John Inman, in real estate of Richard Inman, deceased, acknowledged and recorded January 14, 1833.

January 7, 1833. Deed, Richard and John Inman to Caleb Inman, for their interests in their father's estate. Consideration of one dollar, and other good causes and considerations, them thereto moving.

Jonas Hartsell sworn-Proves the receipt of Richard Inman to Caleb Inman, of September 23, 1836. This receipt then offered by