(Pullen v. Rianhard.)

different, as well as appropriated to uses altogether foreign from that authorised and prescribed by the deed of trust: which would be overruling what is laid down in Lancaster v. Dolan; that even the cestui que trust herself, cannot exercise an authority over the estate, so as to divert it from the defined object of the trust, further than she is expressly empowered to do so by the terms of the deed; and then only in the manner and form prescribed by it.

This brings us to the conclusion, that the plaintiff is entitled to recover, unless he be estopped by the award of the arbitrators.

The submission under which the award was made, has express reference to a summary proceeding commenced before two justices of the peace, therein named, by the defendant as a purchaser at sheriff's sale of the property in dispute; which could only have been instituted under the act of the 5th of April, 1802, entitled, " An act to enable purchasers at sheriff's and coroner's sales to obtain possession." According to the terms of the submission, the question was, "whether the plaintiff (that is the defendant, who was the plaintiff in that proceeding,) as sheriff's vendee is, or is not, entitled to the possession of the property in dispute." It is therefore fairly inferrible that the only question submitted to the decision of the arbitrators, was, whether agreeably to the provisions of the act, the plaintiff in the proceeding, commenced by him under it, was entitled, he having the sheriff's deed for it, duly acknowledged in, and certified under the seal of the proper court, to recover the possession. Now it is pretty obvious from the preamble of the act, that the great object for passing it, was to put the purchaser at sheriff's sale, in possession of the land bought by him, without any unreasonable delay; and that too, whether the sale was valid or not, so he had a deed for it, acknowledged and certified as mentioned above; because from the inability generally of the owners of lands, so sold, to compensate the purchasers at sheriffs' sales, for the injury and loss arising from the great delay that attended the recovery of the possession in ejectment, which was the only remedy then in being, and one where the regularity and validity of the sales could be investigated and decided on; the latter had frequently sustained great damage, and been put to much expense without the possibility of remuneration; but still, leaving the owner of the land after he should be evicted from possession by this proceeding, to bring his action of ejectment without prejudice, and thus have the validity of the sale tested. This is demonstrated by the terms of the first section of the act, which makes the sheriff's deed, in such summary proceeding, if duly acknowledged in and certified under the seal of the proper court, conclusive evidence of the sale; and further provides, that no certiorari, which may be issued to remove such proceedings, shall be a supersedeas, or have any effect to prevent or delay the delivery of the possession. A judgment in a proceeding under this act, against the defendant, is not even equivalent in its effect to a

(Pullen v. Rianhard.)

judgment in ejectment, though it seemed to be doubted by the counsel for the defendant, whether it was not conclusive. The whole scope and design of the act, as may be plainly collected from the several parts of it, show clearly, that such judgment ought not to be any bar or impediment to the maintenance of as many actions of ejectment afterwards, between the parties, as if there never had been a proceeding under the act. Indeed, it would have been unjust, had it provided otherwise; for the title to the land, or the validity of the sheriff's sale, cannot be brought in question or inquired into. Considering then, the arbitrators as substituted for the justices and the inquest, for the purpose of passing upon the defendant's right to the possession under his sheriff's deed, upon the same ground that the justices and the inquest should have done, which I am rather inclined to think, meets the design and intention of the parties best, the award ought not to have any other or greater effect than a judgment rendered by the justices and the inquest; which would have had, as I have shown, no effect in barring the plaintiff here of his right to recover. But, even supposing the submission had been intended to embrace the title to the land between these parties, and that it is to be considered, as a submission and an award at common law, it does not appear that they all gave their assent to the submission. Without this, the award cannot be considered as possessing any binding effect whatever. Sophia Johnson, the cestui que trust, who had certainly a much greater interest in the matter than any other, never signed or assented to the submission. For although it appears to have the name of a gentleman of the bar to it, as attorney for the defendants, meaning Johnson and his wife, who are set down as the defendants in the caption to the submission, yet it does not appear, that he had any authority from the wife to do this. It may and most likely was done at the instance of the husband; which would not bind her in a common law submission in such case. But this form of signing the submission among other things, also tends to show that it was rather considered as a continuation of the same proceeding, and for the same end with that commenced before the two justices of the peace. Upon the whole, we are satisfied, that the judgment of the District Court ought to be reversed, and that judgment here ought to be rendered for the plaintiff.

Judgment for the plaintiff.

END OF MARCH TERM, 1836.

APPENDIX.

[APRIL, 1836.]

THE COMMONWEALTH v. EARLE.*

1. It is not a sufficient reason for allowing a writ of error, after conviction upon an indictment for murder by poison, that the indictment did not aver that the prisoner knew the substance employed to be a deadly poison; nor that the indictment did not aver that the poison was given to the deceased by the prisoner or any one one else.

2. On an indictment for murder, perpetrated by means of poison, a verdict finding the prisoner "Guilty in manner and form as stated in the indictment," is a conviction of murder in the first degree, and sufficient to authorise the judgment of death.

Ar a Court of Oyer and Terminer held at Williamsport for the County of Lycoming, at November Term, 1835, John Earle was arraigned upon the following indictment:

"Lycoming County, ss.

The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the body of the county of Lycoming aforesaid, upon their oaths and affirmations respectively do present, that John Earle late of Lycoming County aforesaid, labourer, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, and of his malice aforethought, wickedly contriving and intending a certain Catherine Earle, with poison, wilfully, feloniously and of his malice aforethought to kill and murder, on the fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty-five, and on divers other days and times between the said fourteenth day of October in the year last aforesaid, and the seventeenth day of October in the year last aforesaid, with force and arms at Lycoming County aforesaid, did knowingly, wilfully and feloniously, and of his malice aforethought, put, mix and mingle certain deadly poison, to wit, white arsenic, in certain chocolate which had been at divers days and times during the time aforesaid, prepared for the use of the said Catherine Earle, to be drunk by her

I have been favoured by the Chief Justice with the materials for the report of this case, which it is believed will be interesting to the profession.-REP.

(Commonwealth v. Earle.)

the said Catherine Earle; he the said John Earle then and there well knowing that the said chocolate with which he the said John Earle did so mix and mingle the deadly poison as aforesaid, was then and there prepared for the use of the said Catherine Earle, with intent to be then and there administered to her for her drinking the same; and the said chocolate with which the said poison was so mixed as aforesaid, afterwards to wit, on the said fourteenth day of October in the year last aforesaid, and on the said other days and times, at Lycoming county aforesaid, was delivered to the said Catherine Earle to be then and there drunk by her; and the said Catherine Earle not knowing the said poison to have been mixed with the said chocolate, did afterwards, to wit, on the said fourteenth day of October in the year last aforesaid, and on the said divers other days and times there, drink and swallow down into her body, several quantities of the said poison so mixed as aforesaid with the said chocolate; and the said Catherine Earle, of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October in the year last aforesaid, at Lycoming County aforesaid, became sick and greatly distempered in her body; of which said sickness and distemper of body, occasioned by the drinking, taking and swallowing down into the body of the said Catherine Earle of the poison aforesaid, so mixed and mingled in the said chocolate as aforesaid, she the said Catherine Earle, from the said several days and times on which she had so drunk and swallowed down the same as aforesaid, until the sixteenth day of October in the year last aforesaid, at Lycoming County aforesaid, did languish, and languishing did live: on which said sixteenth day of October, in the year last aforesaid, at Lycoming county aforesaid, she, the said Catherine Earle, of the poison aforesaid, so taken, drunk and swallowed down as aforesaid, and of the said sickness and distemper thereby occasioned did die. And so the inquest aforesaid, upon their oaths and affirmations respectively as aforesaid, do say, that the said John Earle, her the said Catherine Earle, in the manner and by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought did kill and murder, contrary to the form of the Act of General Assembly of this Commonwealth in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.

And the Jurors aforesaid, upon their oaths and affirmations respectively as aforesaid, do further present, that the said John Earle on the said fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty-five as aforesaid, and on divers other days and times between the said fourteenth day of October in the year last aforesaid, and the sixteenth day of October, in the year last aforesaid, at Lycoming County aforesaid, with force and arms, did knowingly, wilfully, feloniously, and of his malice aforethought, place, mix, and mingle certain deadly poison, to wit, white arsenic, in certain tea which had been at divers days and times dur

(Commonwealth v. Earle.)

ing the time aforesaid, prepared for the use of the said Catherine Earle, to be drunk by her the said Catherine Earle; he, the said John Earle, then and there well knowing that the said tea with which the said poison was mixed as aforesaid, was then and there prepared for the use of the said Catherine Earle, with intent to be then and there administered to her for her drinking the same. And the said tea with which the said poison was so mixed as aforesaid, afterwards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said other days and times, at Lycoming County aforesaid, was delivered to the said Catherine Earle to be then and there drunk by her; and the said Catherine Earle, not knowing the said poison to have been mixed with the said tea, did afterwards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said divers other days and times, there did drink and swallow down into her body several quantities of the said poison so mixed as aforesaid with the said tea; and the said Catherine Earle of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October in the year last aforesaid, at Lycoming County aforesaid, became sick and greatly distempered in her body; of which said sickness and distemper occasioned by the drinking, taking, and swallowing down into the body of the said Catherine Earle of the poison aforesaid, so mixed and mingled in the said tea as aforesaid, she the said Catherine Earle, from the said several days and times on which she had so drunk and swallowed down the same as aforesaid, until the said sixteenth day of October in the year last aforesaid, at Lycoming County aforesaid, did languish, and languishing did live on which said sixteenth day of October, in the year last aforesaid, at Lycoming county aforesaid, she, the said Catherine Earle of the poison aforesaid, so taken, drunk, and swallowed down as aforesaid, and of the sickness and distemper thereby ocasioned, did die. And so the inquest aforesaid, upon their oaths and affirmations respectively as aforesaid, do say, that the said John Earle, her, the said Catherine Earle, in the manner and by the means last aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder, contrary to the form of the act of General Assembly of this Commonwealth in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania."

The trial of the prisoner commenced on the 2d of February, 1836; and the jury returned a verdict of" Guilty in manner and form as stated in the Indictment."

The counsel for the prisoner moved in arrest of judgment, and assigned the following reasons:

"1. That it is not alleged in either count in the indictment, that the defendant knew the white arsenic to be a deadly poison, as by law the Commonwealth were bound to allege.