1814.

Lessee of

But take the case before us and apply principle; for it must be the same case where you apply precedent. Even a SWEITZER case of cattle running at large, cannot always be said to be a case upon all fours, for it is not in that sense of the word that the maxim is applied nullum simile est idem, or nullum simile quatuor pedibus currit.

V.

MEESE et al.

The present case is that of an adverse claim to the title of the husband of the witness. If it succeeds, it must change the possession of the person holding under the husband, or in other words deriving title from him. He sets up a title paramount to the husband and the wife, and he claims above them both. The title set up is adverse to them both, and it is for the whole possession that had been of the husband and wife. Has not the widow an immediate interest in defending herself with the tenant in common, a tenancy in law, if not in fact? It is true she may recover her dower against the adversary, should he get into possession of the whole, but in that case she must establish not only her mar riage &c., but she must go on and prove original title in the husband. This she has no occasion to do against a person claiming under the husband. It will be sufficient to shew the conveyance to him, and that he got into possession by a verdict and judgment and an habere facias possessionem under that judgment, which must conclude him as to the necessity of her proving an original title in the husband. The proceedings in this case therefore could be given in evidence, as shutting his mouth to say that she was not entitled to dower in this estate on the ground of not being the husband's. This on a suit between Sweitzer and the widow Dowdle. This not on the ground of a verdict being given in evidence, being between the same parties, and on the same points, but as proof how and in what manner Sweitzer came into possession, and that he derived title from the husband, after shewing which, how could he contest her right of dower? It must facilitate her recovery very greatly to have to do with Sweitzer rather than with Meese who claims paramount, and will put her to the trouble of proving title in her husband as well as in herself. The first so far as respects Sweitzer was already proved by his recovering under it. The last could be more easily made out, her right to recover dower in what was her husband's.

How can it be said what weight the widow's testimony had in establishing the original title of her husband? It was necessary to the proof, otherwise it would not have been adduced. We are not to suppose that the title could have been established without it; for where an ounce is necessary to make up a pound, there must be that ounce. In a suit for her dower against Meese, claiming paramount to her husband, she must prove the seizin or original title of the husband as against him. But she cannot use her own testimony; and therefore she will want this to complete the weight, that outweighed before. As against Sweitzer she need not prove original title, and therefore can do without it. She can shew the derivation, and the only question can be, has her right of dower passed by the conveyance from her husband or otherwise been taken away, as by a sale for debts &c. This distinction I threw out in the breaking of the case, but it did not seem to be attended to, if it could be answered; but which I thought nevertheless, was the only thing that was to be considered. The counsel appear to me to have been misled by the New York cases, and the indistinct manner in which the law is laid down by them. They decide the matter right, at least in the case in 4 Johnson, but they do not distinguish in their reasons as I could have wished.

If we analyze the case before us, we must see that the widow must have a direct interest in establishing her husband's title, because it is only on establishing that title that she can have any right.

But it would seem to me that the rejection of Spangler's deposition was error, and that he could not be said to be interested in the then ejectment. He had covenanted against the heirs of Hahn, but the heirs of Hahn were not demandants here, but a claim of title paramount. A warranty may be special, as being against the grantor, or those claiming under him, or against a particular person. It is not any deriving title under the grantor or the particular person warranted against, that here claims.

As to the notice it is informally and unskillfully made out; but I believe it may do. It is directed to all the defendants and served upon one. The defendants had all appeared by the same attorney, and defence was taken for them all.

1814.

Lessee of SWEITZER

V.

MEESE

et al.

It is on these two grounds only that I am willing to reverse the judgment.

There was something said about personal estate compensating the widow in lieu of dower, which I could not comprehend, unless by interrupting the counsel and asking questions on the law or fact, to which they alluded, but which interruption they did not seem to like; so that not understanding it, I am obliged to lay this part of the argument out of my consideration.

APPENDIX.

M'CLENACHAN against CURWEN.*

1802. Philadelphia, Saturday, March 26.

The Commonwealth has a con

RESPASS quare clausum fregit. The following case TRE was stated for the opinion of the Court, and agreed to stitutional right to

be considered in the nature of a special verdict.

authorize a turnpike company to lay out a road through the pri

the soil.

Under the act of assembly, passed the 9th April 1792, vate ground of entitled “An act to enable the governor of the Common- the citizen, without making com"wealth to incorporate a company for making an artificial pensation for "road from the city of Philadelphia to Lancaster," a company was incorporated by the name stile and title of "The "President, Managers and Company of the Philadelphia & "Lancaster Turnpike Road," for the purpose of making an artificial road from the city of Philadelphia to the borough of Lancaster, which road was under the authority of that law, laid out by the said Company, over the cleared, tilled and enclosed lands of the plaintiff, situated in Chester county, and was afterwards made and completed in such manner as in the said act is mentioned.

Afterwards, to wit, on the 1st day of August 1794, the defendant, then being superintendant for the said Company, and acting by their commands, entered on the aforesaid land of the plaintiff, along the route or tract so laid out for the said road; and for the length of 100 perches, and in breadth 50 feet, over and along the said route or tract, dug up the cleared and enclosed land of the plaintiff, and overlaid the same with stones and gravel for the said road, and also then and there threw down the enclosure of fence of the said plaintiff, over and across the said route or tract.

No appraisement of the land so overlaid, nor of the damages done by throwing down the said inclosure, has ever

* This case is inserted at the request of the Chief Justice, from a report in his possession. It is of obvious importance, not merely from its containing some valuable facts connected with the early history of Pennsylvania, but from its settling a much litigated point of constitutional law.

1802.

been made, nor has any money ever been paid or tendered MCLENA to the said plaintiff for the same, nor was his permission ever obtained for the entry upon, or overlaying the said route or tract, or breaking down his said inclosure.

CHAN

v.

CURWEN.

On the 11th July 1681, William Penn, the first proprietor of Pennsylvania, made and executed a certain instrument in writing, entitled "Certain conditions or concessions "agreed upon by William Penn proprietary and governor "of the province of Pennsylvania, and those who are the "adventurers and purchasers in the same province." (Prout the same instrument) (a).

No such great roads or highways, as in the said written instrument are mentioned, were first laid out and declared to be for highways, before the dividend of acres was laid out for the purchasers; but in lieu thereof, and with the assent of the said William Penn and the adventurers and purchasers, an allowance for such roads and highways of six acres for every hundred acres, over and beyond the said quantity of every hundred acres, was from the first settlement of Pennsylvania made by the said William Penn, in all his grants of lands in Pennsylvania, for which said allowance no price or sum of money was ever charged or paid; and a like allowance for the like purpose hath ever since been made by the successors of the said William Penn, and by the state of Pennsylvania.

It is agreed, that all acts of assembly of Pennsylvania, whether now in force or not, that either party may think material, shall be considered as a part of this case.

(a) The only material section of the concessions, is the first, which is in the following terms:

"That so soon as it pleaseth God that the abovesaid persons (the proprietary " and adventurers and purchasers in the province) arrive there, a certain quantity "of land or ground plot shall be laid out for a large town or city, in the most "convenient place upon the river for health and navigation, and every purchaser "and adventurer shall by lot, have so much land therein, as will answer to the "proportion which he hath bought or taken up upon rent; but it is to be noted, "that the surveyors shall consider what roads or highways will be necessary to "the cities, towns, or through the lands. Great roads from city to city, not to con"tain less that forty feet in breadth, shall be first laid out, and declared to be "for highways, before the dividend of acres be laid out for the purchaser; and "the like observation to be had for the streets in the towns and cities, that there may be convenient roads and streets preserved, not to be encroached upon by any planter or builder, that none may build irregularly to the damage of ano "ther. In this custom governs."

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