burg. GURLY V. The 1821. whether on those facts, the notice was reasonable. But this Chambersrule was unequivocally disapproved of by Lord KENYON, in Hilton v. Shepherd, and Hopes v. Alder, both reported in 6 East, 14, 15, 16, notes. That it will ultimately settle down into Lord MANSFIELD's rule, in England, is highly Gettysburg Bank. probable, as the power of juries in that country, seems to be gradually passing over to the Courts. But as reasonable. ness of notice had not been decided to be matter of law in the English Courts, while the United States remained part of the British empire, and their subsequent decisions have not the force of authority here, it is to be considered what have been our own decisions, for it will be found to be a subject which the Courts of Pennsylvania have frequently had under consideration. In Robertson v. Vogle, 1 Dall. 252, the point came before the Court of Common Pleas of Philadelphia, when the late C. J. SHIPPEN was President of that Court, and it was held, that reasonable time of notice was matter to be submitted to the jury. The same principle was adopted by M KEAN C. J., in the Bank of North America v. McKnight, 2 Dall. 158. YEATES and BRADFORD Judges, held the same opinion at Nisi Prius, in Mallory v. Kirwan, 2 Dall. 192. The Supreme Court decided in the same way, in the Bank of North America v. Pettit, 4 Dall. 127. The last of our reported cases on this subject, is Warder et al. v. Carson's Executors, 1 Yeates, 531, and the language of M'KEAN C. J., who delivered the opinion of the Court, is worthy of great consideration, as it establishes a distinction between notes discounted by the banks in Philadelphia, and other notes, which appears highly reasonable. "Our trade and usages," says he, "are not so well fixed, as to admit those strict rules, and for the reasons given in Robertson v. Vogle, such strictness would be dangerous and inconvenient. No decision that we know of, amongst us, has fixed any general rule, and the question respecting reasonableness, &c., has been left to the jury. Indeed, in suits brought by the banks, against indorsers of promissory notes, we have gone so far as to say, that as they themselves have adopted the practice of giving notice to indorsers within six or seven days at farthest, where the parties live in the city, this usage shall be obligatory on them, and that a further delay will discharge the indorser." Without undertaking to say pre burg. GURLY V. The Gettysburg Bank. cisely, what is the practice of the banks in this city, I am 1821. confident that they give notice now in a much shorter time Chambersthan five or six days. And the fact is capable of being so exactly ascertained, that there will be little difficulty, when a case occurs, in settling the law with regard to them. But I am satisfied, that an attempt to lay down any general rule at this time, applicable to all notes discounted in the country banks, would be unjust and dangerous. The practice of giving notice, has been different, in different banks, espepecially in cases where the indorsers do not live in the town where the bank is kept. And as to individuals in the country, who hold indorsed notes, never discounted by any bank, I am well assured, that there is no general understanding, of any particular time of giving notice. How then can the Court fix the time? The common law has no rule on the subject. And in those countries where the greatest commercial strictness prevails, the Courts have never undertaken. to establish a rule, until they found the course of business so well settled, as to afford them a basis. Even in our greatest commercial cities, which have sometimes been subject to alarming epidemic disorders, the Courts have found themselves reduced to the necessity of submitting to juries, (often better informed in these matters than themselves,) what should be a reasonable allowance for the circumstances of the time, in questions of notice with respect to promissory notes, bills of exchange, and policies of insurance. I have forborn to take notice of the decisions of the Supreme Courts of New York and Massachusetts, not that I have not the most unfeigned respect for them, but because we are bound to pay still greater respect to our own decisions, which have not been in exact accordance with them. Upon the whole, I am of opinion, that we cannot say there was error in this case, without a premature and dangerous departure from all former precedents in this Commonwealth. The judgment of the Court of Common Pleas is therefore to be affirmed. Judgment affirmed. In a scire facias against the heir and ancestor, tered ne lands which it valid under and binds COYLE heir of COYLE and O'CONNER terre tenant against REYNOLDS and another executors of REYNOLDS. IN ERROR. ERROR to the Court of Common Pleas of Franklin county. William Reynolds and James Campbell, executors of John judgmen en- Reynolds, deceased, brought this scire facias in the Court rally thent below, against George Coyle, heir of Henry Coyle, and David specifying the OConner terre-tenant, on a judgment against the said Henry is to affet, is Coyle, entered at March Term, 1787. Several errors were the practice in assigned in the course of the argument in this Court, but Pennsylvania, they were all abandoned except one, which was, that the only the lands jury did not find any lands bound by the judgment in the of the ances- hands of either of the defendants, and the judgment on the hands of such scire facias was entered in such a manner as to affect the tenant, and if defendants personally. The defendants below pleaded paythe plaintiff ment; and O'Conner also pleaded for himself, that " he was attempts to enforce it a purchaser for a valuable consideration, and stood protected personally, by law," and issues were joined on these pleas. The jury the Court may found for the plaintiffs, and the judgment was entered generally. tor in the heir or terre against them interfere in a summary manner. It is no ob jection to a such scire fa- heir or terre Dunlop and McCullough, for the plaintiffs in error, objected to the entry of the judgment, as erroneous and defective, inasmuch as it rendered the defendants personally liable, in a case where only the property of the original defendant, hands of the which was in their possession, ought to be bound, and that tenant, if they the judgment should have been specially entered to that effect. The jury ought to have ascertained the property, so thing to bring that point be- as to regulate the judgment. 2 Saund. 7. note 4. Lill. Ent. fore the jury. 289. 2 Saund. 17. Herbert's Case, 3 Co. 12. Poph. 153. Phill. Evid. 294. 5 Com. Dig. Pleader, S. 20. pleaded no Chambers, contra, cited 2 Tidd. 1032. 1 Esp. N. P. 2d part, 89. 1821. burg. COYLE and another V. REYNOLDS' executors. The opinion of the Court was delivered by TILGHMAN C. J.-This was a scire facias against the Chambersheir and terre tenant of Henry Coyle, deceased, on a judgment against the said Henry, entered at March Term, 1787. Several errors were assigned, but in the course of the argument they were all very properly relinquished but onewhich was, that the jury did not find any lands bound by the judgment, in the hands of either of the defendants, and that the judgment on the scire facias is entered in such a manner as to affect the defendants personally. If that were even the case, the defendants would have themselves to blame for it, because they did not plead any thing which brought that point before the jury. They pleaded payment, and besides, O'Conner pleaded for himself, that he was a purchaser for a valuable consideration, and stood protected by law." A singular plea to be sure; for what protection did the law afford to a man who purchased land bound by a judgment? However, the defendants need not be unnecessarily alarmed -the judgment is entered in a short memorandum, as all our judgments are, and when reduced to form, will only affect the land bound by the judgment. It is too late for this Court to attempt now to correct a mischievous and inveterate practice, which has entered into the system and very heart of our titles to land. Our judicial proceedings framed in the unsuspecting simplicity of early times, with a view of avoiding expense, or saving trouble, have been so short, as to be obscure; so loose, as to be uncertain. The prothonotary writes the word judgment, and that is all we have for it. But what that judgment is, the Courts, as they are called on from time to time, must explain. This Court has considered itself bound in duty to support judgments as far as possible, where every thing appeared fair and honest. In writs of scire facias against heirs, and terre-tenants, it has been very common not to specify the lands of which execution is demanded. The scire facias directs the Sheriff, to make known, &c., to the terre tenant of all the lands held by the defendants at the time of the judgment, and the Sheriff returns, that he has made known, &c., to certain persons, naming them, but not describing the lands held by them. The short entry of judgment against those persons, is construed to relate only to the lands in their possession, which were bound VOL. VII.-U u Chambers burg. COYLE and another V. REYNOLDS' executors. 1821. by the original judgment, and not to affect them personally. I am sensible that this is an inconvenient way of conducting the business, and am very sorry for it. But so it must remain, until the Legislature interfere; for this Court cannot make an alteration, without affecting past transactions; which would disturb the quiet of the State. All that we can do, is, to protect all persons, as far as possible, from suffering by any misconstruction of the judgments which are entered, or by any abuse which may be attempted to be made of them. In general, the pleadings, issue, and verdict, shew plainly enough, what the judgment ought to be. In the case before us, considering the practice which has prevailed, I think it sufficiently clear that the judgment affects not the persons of the defendants, but operates only on the lands which were in the tenure of them, or either of them, and were held by Henry Coyle, deceased, at the time the original judgment was entered against him. Should the plaintiffs attempt to injure them, by taking an execution against any other lands, or against their persons, the Court will interfere, and do justice in a very summary way. I am therefore of opinion, that the judgment should be affirmed. Judgment affirmed. DUNCAN J. gave no opinion, having been counsel in the cause. CREEK and another against Moon and another. Monday, A survey made by a person, not appearing to have been a IN ERROR. ERROR to the Court of Common Pleas of Cumberland county. deputy surveyor, of land not comprehended within the Act of 8th April, 1785, returned into office and accepted, and a patent issued thereon, is valid. A survey in 1783, of 328 acres, on a warrant for 150 acres, to the prejudice of the improvement right of a third person, to 300 acres, which improvement was made prior to the survey, is bad. |