5 Watts 423 | Pa. | 1836
The opinion of the Court was delivered by
There is nothing tenable in any of the matters assigned for error, excepting in the second bill' of exception, which was taken to the opinion of the court below, in admitting George ■ W. Fell, to testify as a witness on behalf of the defendant in error, the plaintiff in the court below. It is admitted, that Fell was one of the cestuis que trust, for whose use, this action was commenced in the name of Josiah Galbreath, as a trustee merely. Fell, however,
It has been decided by this court, in two or three cases at least, that a person for whose use an action is brought, no matter whether his name be on the record or not, cannot be made a competent witness to support the action, by assigning his interest and claim to whatever may be recovered in it, without all the costs, accrued therein, being actually paid, and a sum of money brought into court and deposited with the prothonotary or'clerk, sufficient in amount, in the estimation bf the court, to pay all the subsequent costs which shall thereafter accrue, and to be ajopropriated to that end, whether the plaintiff succeed in the action or not, without any right or claim whatever on his part to have them repaid. No promise or engagement of the assignee or of any other person on his behalf to pay the same or any part thereof can supply the want of payment of the costs already accrued, and a deposit of money sufficient to pay all which may or shall accrue. And jt may be considered now as settled, that nothing but an actual payment of all the costs, which have accrued and a deposit of a sum of money sufficient to pay the residue thereof, which shall have accrued upon the final determination of the suit, together with an absolute relinquishment of all right to have or claim a return of the same, is sufficient to relieve the party for whose use the action was commenced, after assigning his interest therein, from his liability for the costs of the action, and from the interest which he has by reason thereof, in the event of the suit, so as to render him a competent witness to sustain it. We therefore think there was error committed in admitting George W. Fell to testify on behalf of the plaintiff below, and upon this ground alone the judgment is reversed.
Although, for the purpose of trying this cause again, it may not be indispensably necessary, to notice particularly the other matters, which have been assigned for error; yet, believing from some of the observations made by the court below in relation thereto, as well as from the manner in which the counsel for the plaintiff in error, has pressed them upon us as being erroneous, that he may not, perhaps, be singular in the opinion as to their being so, it is deemed proper out of respect for those who seem to have been so impressed, to mention some of the reasons why they are not considered erroneous.
Firstly. It has been argued, among other things, that as George
Secondly. It has been contended, that although Josiah Galbreath, the plaintiff below, was invested with the legal title to the whole of the land, yet the recovery ought only to be for that proportion of it, which belonged to the cestuis que trust, at whose special request the counsel attending to the trial for the plaintiff, declared he was doing so. Tenants in common have a unity of possession, and the entry of one of two or more tenants in common is uniformly considered the entry of all; so much so, that unless one
For'ought, however, that appeared in this case, all the cestuis que trust may have been consulted and consenting to the bringing of this action. The declaration of the counsel who tried the cause last, made at the time of that trial, that William S. Rankin and the heirs of Benjamin Lodge were interested as plaintiffs, and that he knew of no other person interested as plaintiff, does not disprove this by any means; because it might have been so without his knowledge. And, moreover, the counsel who instituted the suit originally, and who attended to the first trial, was dead at the time of the second; and it did not appear by whose authority the action was commenced by him.
Thirdly. It would also seem, that an idea has prevailed to some extent, that the defendant in such case as the present, after having pleaded in bar and joined in putting the, cause to issue, when the plaintiff has brought it on to trial, has a right then to demand for whose use the suit has been commenced and is carrying on. I, however, am not aware of any good authority upon which such opinion or right can be sustained. In support of it, however, it has been alleged, that the defendant, in case he should become entitled to recover costs, may not know to whom he shall have a right to look for payment of them unless the real plaintiff is disclosed. But surely it is a sufficient answer to this, that the plaintiff on the record is presumed to be the real plaintiff, and to be liable for the costs of the action, in case of his failure to prosecute it successfully, until the contrary shall be made to appear. If, however, in the course of the trial, it should turn out from the evidence that he is only a trustee, without the least interest whatever in the action; and that it was commenced without his knowledge or consent, for the exclusive benefit of others, they, whoever they are, become thus made known to the defendant, so that if t.he cause should be determined in his favour he can be at no loss, for want of knowledge, to whom he may
It may be remarked here also, that the defendant, in certain cases, has a right to demand security for costs; but he is not permitted to exercise it at the moment of the trial. For instance, in a qui tarn action, or where the plaintiff resides without the state, the defendant,
Accordingly, in order to prevent all unnecessary delay in bringing a cause to trial on its merits, and with a view to attain this great end as speedily as may be consistent with the time that is requisite to enable each of the parties to prepare fully for it, the same principle is observed and carried out in the rules of pleading; so that if an action be, commenced in the name of a fictitious person, the defendant may plead in abatement that there never was any such person in rerum natura; Bro. tit. Brief, pl. 25; Theloal’s Dig., lib. ii., case 7; 1 Com. Dig. tit. Abatement, E. 16, p. 60, 61; Doe v. Penfield, 19 Johns. 308; 1 Tidd’s Prac. 579; 1 Ckitty’s Pl. 435; or if the plaintiff once existed, but died before the impetration of the original writ, the defendant may likewise plead this in abatement. Bro. tit. Brief, Pl. 25, 70; 1 Com. Dig. tit. Abatement, E. 16, p. 61. But then he will not be permitted to plead those matters after pleading in bar to the action, nor even after a general imparlance ; for all pleas or excuses of this kind, for not meeting the trial of causes upon their merits, are regarded as dilatory, because put in with a view often to delay the final issue of them; and are therefore not much favoured in law. And, therefore, to entitle them to be received by the court, they must be put in at the earliest opportunity afforded the party, unless some cause can be shown for claiming indulgence by a special imparlance.
But it has been said that a plea in abatement is not an appropriate plea, and that it cannot be received in ejectment, because as by the. fourth section of the act of assembly of the 13 th of April 1807, 4 Sm. Laws, 477; it is enacted that “ the plea in ejectment shall be, not guilty;” and therefore no other plea can be put in or received. There is certainly no good reason why a plea in abatement should not be as proper, in such action as in any other; especially since all fiction is done away with in it, and the writ commencing the action must be sued out either in the name of the person actually invested with the legal or equitable title. By the second section of the act of the 21st of March 1806, for regulating arbitrations and proceedings m courts of justice, a new mode of instituting the action of ejectment by writ is prescribed, and the form of the writ is thereby given. It is thereby made the duty of the plaintiff, on or before' the first day of the term, to which the writ is returnable, to file in the prothonotary’s office, “ a description of the land together with the number of acres, which he claims and declares that the title is in him for; and the defendant shall enter his defence, if qny he hath, for the whole or any part thereof before the, next term, and thereupon issue shall be joined.” Here, it is merely directed that the defendant shall enter
It may also be further observed, that as no other than the party invested with either the legal or equitable title to the land has any right or authority to bring an ejectment for it, and the attorney suing out the writ may be compelled in the manner already mentioned to file his warrant of attorney for doing so, the defendant has it in his power generally, by this means, to ascertain by whom, and whether or not the suit has been instituted by the one or the other; and if by neither, but in the name of one of them, he may show the want of authority and have the suit dismissed; for no court will suffer its process to be abused, and most especially not by its officers. But if the suit should be instituted in the name and by the authority of one who has really no claim to the land, the defendant must of course answer to the suit or give up the land; and, though he may have no title himself to it, yet he may protect himself in his possession by relying on the inability of the plaintiff to show a title, or by showing a good title himself in a third person. If, however, the ejectment be brought by the authority, and in the name of a warrantee who has no real interest in the land, and the defendant be without right to it, it may be prudent for him to put himself under the protection of the cestui que trust, by becoming his tenant, which he doubtless may effect, unless where the cestui que trust may wish to obtain the actual possession himself, when he would be most likely to take sides with the warrantee; in which case the defendant would seem to have no alternative but to yield the possession of the land to its proper owner, which must be admitted by all to be not onty just but equitable.
It has also been complained of as error, that the court refused to leave it to the jury to find whether George W. Fell had abandoned his improvement and settlement or not, and, if he had, then to instruct them that the plaintiff could not recover. This, it is contended, ought to have been done according to the principle laid down in Cosby v. Brown, 2 Binn. 124, where the contest was between two ¡actual settlers, and not between a warrantee and a settler as in this .case. Here George W. Fell’s improvement and settlement, so far as he progressed with it, is set up, and the evidence seems sufficient to prove the fact to have been so, as having been made for and on behalf of the warrantee in fulfilment of the conditions upon which the land mentioned in the warrant was granted to him by the state.
Judgment reversed, and a venire de novo awarded.