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FROMgA PHILADELPHIA P.fl
LJTW JC.AS.&
The following opinions delivered by the
judges of the supreme court oi' this stjite, at
an adjourned court held 17th January, 1807,
are of importance to all concerned in the
purchase and sale of real estates. The cause
was ably argued at December term lajf, by
Messrs. J. Sergeant and Lewis for the plain-
tiff, and Messrs. J. B. M'Kean, and Iuger-.
soil for the defendant.
Opinion of chief justice TilgJiir.an.
Lewis Bender, ~) ¦
•vs. >
John Frombergef's, Ex'rs. b
¦ comes before the court upon a
point submitted to them by the jury who
tried the cause. Fromberger sold to Bender
about 2 acres of land in the northern liber-
ties of this city, and in his detrd of convey-
ance, dated Sepl ember, 1797, covenanted
¦" that he was lawfully seized of a good, sure
and indefeasible state of inheritance in fee
simple in the said land, and good right, full
power and authority in his own right, to
grant and convey the same to Bender in fee
simple."
Bender entered upon, the premises & im-
proved them considerably by fences, build-
nigs and otherwise; he remained in posses-
S on till the latterend oftheyear 1831, when
he was evicted by one Hilton, who recover
td f.;ainst him in the circuit court of the U.
States.
|B Bender then brought the present action of
covenant, and the jury found a verdict in his
favor for g0332 50-100 .: but if the court
should be of opinion, that he was not enti-
tlrd to recover the value of the improve-
ments made by him, after he purchased of
the defendant, then they find damages only
to the amount of §2979 14-100, (the pur-
chase money and interest from the time of
the eviction.)
The qiv.'SMon submitted to us by the jury
has never been decided in this court. It is
of importance and has been well argued.
It may betaken for granted, that on a
suici: warranty, whentithe remedy ' for the
party who loses the)ands,is either by vouch-
er or writ of warraiiti a chartx, therecovery
is only according to the 'value of the land ot
the time the 'Warranty -was crtaied.' This is
conceded by she | lamtiff's counsel and very
properly, for many authorities weie cited di-
rt otly to the peint. But tins kind of'war-
ranty, which is a covenant real, has long
ceased a;:'.; has been succeeded by the cOve-
TMXxXsrpersonal, introduced into modem con-
veyances. The latter has two. advantages,
the remedy by action of Oteenanf is more
easy in its form, and more comprehensive in
its effects, foi it extends ib the pergonal pro-
perty of the warrantor in the hands of his
executev? ; whereas the ancient recovery
iu value, was confined to land. I know of
no case in England where it has been de-
cided whether the recovery in an action of
covenant, could be carried so far as to include
damages for improvements made after the
purchase ; but I must suppose that sir Wru.
Blackstone was of opinion, that such dama-
ges could not be included, otherwise he
ought certainly to have mentioned it, when
he was comparing the ancient warranty
wiih the modern covenants, which he says
have superseded them ; his expressions are
these ; " if he covenants for his executors
& administrators, his personal assets, as well
?s his real, are pledged for the perform-
ance of the covenant, which makes such
covenant a better security than any war-
ranty, ai'd it has therefore in modern prac-
tice, totally superceded the other." A ge-
neral warranty, is as comprehensive in its
f- presslons, as any words made use of in
in idem covenants, it undertakes to defend
the land to the warrantee, his heirs artd as-
signs against all persons Whatever, It is in
its nature a covi nent real, and since the re-
covery on it extended no further than the
value of the land, at the time of the war-
(lie inference is very strong,
that in these personal covenants which I
succeeded to it, the extension shallbe ne-
ater. But the plaintiff's co
that the reason why,the recovery in v.due
en the ancient warranty was confined to the
value at the time of its creation is, bee
in real actions no damages can be recovered.
This reason is unsound— the value at the
time of the voucher might have been reco-
vered, without recovering rj and
this is very evident from some of the cases,
which have been cited ; pa ; .
of'Ballet 'u. ballet, where il ..that
in a warrantia charta, if then wild-
ings, of wdiich the warranty is deman
which were not at the time of the warranty
made,, the defendant rhui ire to. shew
the special matter . .n exchange of land, the recovery
in value- in case of eviction, is according to
the actual loss sustained. As this seemed to
be at variance with the general principles of
warrant}', I have examined it since the ar-
gument of this cause, and found that the
case was not properly explained. The
-voids of the abridgment are as follows :
"If a man recovers in value, upon a warran-
ty in law on an exchange, he shall have in
value according to the 'value 'which he has
ioil." In support of this, the case of Bus-
tard 4 Coke 121, is cited. In the first place
it is to be remarked, that in the marginal
note to pi. 6, in the same pag« of Viner, it
is said that the same case is reported in Cro.
Klixabeth, Moore, and Yeherton, in neither
of which is such point, mentioned—and it is
certain from my lord Coke's report that the
decision must have been extrajudicial, for
Bustard's case turned on a different point—
Bustard beihg evicted of the land received
by him in exchange, entered upon that
which he had given-in exchange by virtue
of the imfiiied condition in law 'which is
annexed to an exchange ; a re-entry was
made on him, in cons.equ.ence *f which he
la-ought an action of trespass, and whether
lie .couid recover in that action, was the
question - so that the court had nothing to
«)o with the value of the land. But accord-
ing to 1113' lord Coke's account of it, yvhat
they did decide concerning the value is not
applicable to th$ point now before the court
—(he decision is that if A. wltp has receiv-
ed three acres in exchange* is impleaded for
one acre, and vouches B. from whom he re-
ceived them, and then the demandant reco-
vers the one acre, A. shall, recover in value
from B. but according to the loss, that is
but one aci e - but not a word is said con-
ig the time to which the value of this
acre is to relate. And that is the only ques-
tion now under consideration. -
It has been contended, that the true mea-
sure of damages in all actions of covenant
tis the loss actually sustained. But this rule
is laid down too generally. In an action
of covenant for ncn payment of money on a
bond or mottgage, no more than the princi-
pal and legal interest of the debt can be
recovered, aliho' the plaintiff may have suf-
fered to a much greater amount by the de-
fault of payment. The rule contended for
by the plaintiffs' counsel in its utmost lati-
tude, applied to covenants like the present,
would in many instances produce excessive
mischief. Indeed the counsel have in some
measure given up this rule, by confessing
that when buildings of magnificence are e-
rected to gratify the luxury of the wealthy,
it would be unreasonably to give damages to
the extent oi the loss—but the ruinous con-
sequences would not be lessto many persons,
who have sold lands, on which no other
than useful buildings have been erected.
The rise in the value of land not only in
towns'on the sea coast, but in interior parts
of the United States, is such, that it can
hardly be supposed any prudent man would
undertake to answer the incalculable dama-
ges which might overwhelm his family, .un-
der the construction contended for by the
plaintiff. I have taken pains to ascertain
the opinion of lawyers in this state, prior to
the American revolution—and I-think my-
self warranted in asserting from the informa-
tioji I have received, that the prevailing
opinion among the most eminent counsel,-
was, that the standard of damages was the
value of the land at the time oi making the
contract. The title of land rests as much
within the knowledge, of the purchaser as
the seller ; it depends upon writings which
both parties have an equel opportunity of
¦-. If the seller makes use of any
fraud, concealment or artifice to mislead the
purchaser in examining the'title, the case
. rent, he will then be answerable for
all losses which may ensue.
Cases have been cited from the Civil law ;
I throw them out of view, because this case
can ¦ be decided only on the principles of
common law.
Cases have also been cited from law re-
ports in the states of South-Carolina and
New-York. Though they are not authority
in this court, yet we shall always be happy
to receive information of the opinions of
the learned judges in our sister states, and
always treat them with due respect. Upon
the point now in question, it seems there
is a difference of opinion. In South-Caro-
lina it has been held, tlmt the plaintiff is
intitled to recover according to the value at
the time of the action. In New-York that
he can only recover according to the value
at the time of the contract. On these cases
1 will only remark, that the opinions of
the judges in South-Carolina having been
given during the hurry of a jury trial, do
not appear to have been founded on such
mature deliberation as those of the New-
York judges, who made their decision in
the supreme court, sitting in bank.
Upon the whole, I am of opinion, that
by the true construction of the covenants
iu the case before 'us, the plaintiff is not
intitled to recover the value of the improve-
ments made by him after he purchased of
John Fromberger, and therefore that judg-
ment be entered for £>2-97y 14-100 and
costs. ,
I am authorised to say, that judge Yates,
whose absence is occasioned by sickness,
concurs in this opinion.
by an
Opinion of Judge Smith.
, The question now. to be.dccitjed by this
court is of great importance. I understand
that it has long been discussed ..among the
oiuent counsel in Pennsylvania, and
opinions have been given by some of them,
but that it has never received a judicial da-
cision—I believe on inquiry, tliat it never
came before any court in Pennsylvania, until
the 24th May, 1804, when it came before
the circuit court, holden for the comity of
Northumberland, by judge Brackcnridge
and myself, in the case of Wm. Bonham
vs. John Walker's adm'r. We said that
" It is a vexatious question, and it is pro-
per that it should receive a solemn decision
in bank—we therefore propose that the
measure of damages should be left to the
jury, on each of these grounds, which is
done accordingly." The jury found " a
verdict for plaintiff for gioyta 17-100 da-
mages, on the ground of the original pur-
chase money—and on the ground of the
value of the land at the time of the execu-
tion (eviction)"—$§1602 21-100.
After my return, I was induced to make
diligent inquiry whether the point had ever
been decided, and what had been the general
opinion of eminent counsel on it, and the
result was that expressed by the chief jus-
tice. After a very extensive perusal of the
cases on the subject ; the notes of which
taken by me then, and annexed to that
case, are now before me, they did. not in
my opinion, warrant me in drawing a dif-
ferent conclusion; but I saw difficulties,
whether the question was decided one way
or the other, which made me anxious to
hear it deliberately argued ; ready to alter
my opinion, if 1 should discover that it was
not well founded, or if the opposite opinion
should be supported by law and more con-
ducive to the general interest, and more
agreeable generally to the intention of the
s to such contracts.
' I have heatd it very well argued—If tte
very well arranged and able argument of the
ingenious young gentleman who began, has
not been able -to shake the opinion which
1 had formed, I am induced to believe that
it is well founded on the solid principles of
law,-J must therefore adhere to it upon the
present occasion. It not being suggested
that there was any fraud'ox concealment en
the part of the vendor, nor any hno'wledge
when he sold, of any defect in his title.
Had any of these circumstances occurred,
I should be of opinion that he would be li-
able to the amount of the loss.
Although the vendor on a covenant like
that in question, be liable to damages only
to the value at thg time of the deed, yet he
may enter into such a special express cove-
nant as will make him liable to the value at
the time of eviction, and so much will the
vendee on such event be entitled to. In
the present case I agr-e, that judgmeut be
entered forthe plaintiff for 2979 14-too.
dollars.
Judge Brackenridge was present and ex-
pressed his concurrence.
The three following Bulletins complete our
series to the 4«d.
G RAND ARMY.
THIR.TY-F1KYU BULLETIN.
Posen, Nwuembcr 28.
The emperor set off from Berlin on the
25th, at two in the morning, and arrived
at Custrin, on the same day.at ten in the
morning. He arrived at Messeritz on the
26th, and at Pusen on the 37th, at ten in
the evening.. On the following morning
his majesty gave audience to the different
orders of the Poles. The marshal of the
palace, Duroc, went as far as Osterode,
where he had an interview with the king of
Prussia, who declared to him that a part of
his states was occupied by the Russians, and
that he was entirely in their dependence ;
that in consequence he could not ratify the
suspension of arms which had been con-
cluded by his plenipotentiaries, because he
could not execute its stipulations. His ma-
jesty was going to set off for Kcenigsberg.
The grand duke of Berg, with a part of
his reserve of cavalry, and the corps of mar-
shals Davoust, Lannes and Augcreau, have
entered Warsaw. The Russian gen. Ben-
ningsen, who had occupied the.town before
the approach ot the E rench, had evacuated
it, on learning that the French army was
marching against him, and wished to come
to an engagement.
Prince Jerome, with the corps of Bava-
rians, was at Kalitsch, .
All the rest of the army was arrived at
Posen.
Marshal Mortier is on his march to Ank-
lam, Rostock and Swedish Pomerania, after
having taken possessionof the Hanse towns.
The surrender of Hamcln was attended
with some strange events. Besides the gar-
rison intrusted with the defence of.that for-
tress, some Prussian battalions appear to
have taken refuge there after the battle of
the 14th. Anarchy prevailed in this nu-
merous garrison. The officers shewed
marks of insubordination against the gene-
rals, and the soldiers against the officers.
During this time the garrison was iu a state
of insurrection, and the fust act of sedition
was to hasten to the brandy magazines,
break them open and drink without mea-
sure. In a short '.ime, animated by this
spirituous liquor, they tired upon each other
in the streets, soldiers against soldiers,•olii-
cers against officers, and soldiers against
citizens, thg disorder was at its highest pitch.
Gen. Yon Schoelcr sent courier alter courier
to gen. Savary, to iiitrest him to come and
take possession of the place" before the »io-
meut fixed on for delivering it up. , Gen.
Savary immediately hastened to march into
t'he town, which he entered amid a stiuwer
of balls, made all the soldiers of the garri-
son hie through one of the gates, and shut
them up in a meaaow. He afterwards as-
sembled all the officers, acquainted them
that what had happened aro»e from want
of discipline, made them sign their cartel,
and re-established order in the town. Se-
veial of the inhabitants are said to have
been killed in the streets.
THIRTY-SEVENTH BULLETIN.
Posen, December 2.
The fort of Czcntoscluu has capitulated.
Six hundred men who formed the garrison,
thirty cannon, and some magazines are fal-
len into our power. There is a treasure
formed of several precious objects, which
the devotion of the Poles had ottered to
an image of the Virgin, who is regarded as
the patroness of Poland. This treasure had
been put under sequestration, but the empe-
ror has ordered it to be returned.
The part of the army which is at Warsaw
continues to be satisfied with the spirit
which animates that large capital.
The town of Posen gave a ball to-day to
the emperor. His majesty spent an hour
at it.
There was a Te Deum to-day for the
anniversary of the emperor's coronation.
Thirty-eighth bulletin.
Posen, December 5,
Prince Jereme, commander of the army
of the allies, after closing the blockade of
Glogau and raising batteries round the place,
marched with the Bavarian division Wrede
and Deroi towards Kalitsch to meet the
Russians, and left gen. Vandamme and the
Wirtemberg corps to carry on the siege of
Glogau. Some mortars and several pieces
of cannon arrived on the 29th November.
They were immediately formed into batte-
ries, and after a few hours bombardment,
the place surrendered by capitulation.
The allied troops of the king of Wirtem-
berg have behaved very well. Two thou-
sand five hundred men, considerable maga-
zines of biscuit, corn and powder, with
about 200 pieces of cannon, an roe
of this important conquest, especially from
the goodness of its fortifications and .situati-
on. It is the capital of Lower Silesia.
The Russians having refused battle before
Warsaw, re-crossed the Vistula. The grand
duke of Berg crossed it after them: he took
possession of the suburbs of Praga. He is
pursuing them along the Bug. The empe-
ror has 111 consequence, ordered prince Je-
rome to march on his right against Breslaw
and to surround that place, which will ere
long fall into our power. The seven places
of Silesia will be successively attacked and
blockaded. Considering the composition of
the troops which are in them, none of them
give reason to presume a long resistance.
The small fort of Colmbach, named Plas-
senburg, had been blockaded by a Bavarian
battalion; being provided with provisions
for several months, there was no reason for
its surrendering. The emperor got pieces
of artillery prepared at Cronach and For-
eheim for the purpose of battering that fort
and obliging it to surrender. On the 24th
November, 22 pieces were mounted, which
determined the commandant to deliver up
the place. M. de Becker, colonel of the 6th
regiment of Bavarian infantry of the line,
and commander of the blockade, displayed
activity and knowledge-upon this occasion.
Tiie anniversary of the battle of Austerlitz
and of the emperor's coronation, was cele-
brated at Warsaw with the greatest enthu-
siasm.
NEW-YORK, February 21.
We noticed in yesterday's Mercantile
Advertiser that the son-in-law of colonel
Burr had published a refutation 01 the charg-
es alledged against him in the cyphered let-
ter to general Wilkinson. The following
is a copy of this refutation, addressed to his
excellency Charles Pinckney, governor of
the state of South Carolina :
" Oakv February 6, 1807.
" Dear Sir
". I have received and rend the president's
message with deep mortification and con-
cern. But the letter annexed to it, stated
to be a communication in cyphers from
colonel Burr to general Wilkinson, excites
my unfeigned astonishment. I solemnly
avow that, when the letter was written, I had
never heard, directly or indirectly, from
col. Burr or any other person, of the
meditated attack on New-Orleans ; nor had
I any more reason to suspect- -an attack on
that place or any ether part of the United
States, than I have at this moment to sus-
pect that our militia will be forthwith or-
dered on an expedition against Gibraltar.
' On the other hand I had long and strong
grounds for believing that colonel Burr was
engaged by other objects, of a very differ-
ent nature from those attributed to him^and
which I confess the best sentiments of my
heart approved. I need not add that these
objects involved not the interests of my coun-
try. Without adverting to that integrity of
principle, wdiich even my enemies, I trust,
have allowed me, can it be supposed that a
man situated as I am, descended from a
family which has never known dishonor,
happy in the affection and esteem ot a
large number of relations and friends, pos-
sessed of an ample fortune, and standing
high in the confidence of his fellow-citizens,
co'uld harbor tor an instant, a thought in-
jurious to the country which was tne scene
of these blessings ? The-supposition would
be monstrous. No sir. It was but a short
period bclore the impression became gene-
ral, that 1 apprehended the possibility of
Mr. Burr's intentions being hostile to
the 11111011 ; and the moment which
-nth to that apprehension, gave birth
to the resolution winch became a citizen.
I confess, howevev, there aie limes even
now, when, in spue ol (lie strong fuels which
have been exhibited, 1 anl almost inclined
to believe my suspicions injurious. What-
ever may be the thought of the heart of
Mr. Burr, his taleins are great beyond ques-
tion—and to reconcile with such talents, the '
chirueicial project of dismembering the
union, or wresting from it any part of its
territory is difficult indeed. .1 travelled
through a part of the Western Country, dur-
ing the last summer, and have nohesitation
in saying, that either of those projects would
have been as much reprobated there as in
the Atlantic States. With respect, howe-
ver, to the communication annexed to the
president's message, which occasions you
the trouble of this letter—after my solemn
assurances to you, that I had never given
Col. Burr or any other person the smallest
reason to imagine that 1 could be induced
to engage in any project against my country
—it would be infinitely satisfactory to me,
could 1 explain to you with the same cer-
tainty, the motive which led him to intro-
duce my name as he did. But here unfor-
tunately all is conjecture.- Two motives-
only suggest themselves. He Imagined
perhaps, which by the way he had no right
to do, that his influence would be sufficiently
great to induce my assent, and thought,
therefore, he might as well consider it al-
ready obtained : Or, which is more probable,
he might have imagined, that by the appa-
rent concert of a number of persons from
different states, a stronger impression would
be made upon his correspondent. Consi-
derable effect, too, was no doubt anticipated
by Mr. Burr's discernment from the perfect
self-confidence which would have been mat
nifested by his taking with him his daugh-
ter, receiving my co-operation, and thus
embarking in the scene the fortunes of his
infant grandson—the only relative except
his daughter that he has. But, whatever
the motive, which drew from col. Burr the
assertions contained in his letter to general
Wilkinson ; facts, incontrovertible facts,
prove that he had no authority for making
them. His daughter did not go with him ;
the navy of the United States is still faith-
ful to its duty ; commodore Truxton, I am
told, at the very moment he was said to
have gone to the West-Indies, was in Phi-
ladelphia, which I know Jtbt whether he
has ever left ; and I. instead of foi!
with a corps of worthies, am now at my
usual residence, jvhefte I have been , ,el
since the adjournment of the legislature,
peaceably directing the ploughing oi my
rice fields and preparing ray lauds for live
ensuing crop. This is conclusive.
A conspirator against the happiness or li-
berties of his country would at this moment
have been very differently employed. Con-
spirator ! the blood burns my eheek as I
write the word—but I meant to confine my-
self simply to the disavowal, 1 have made
you, of a single action or thought hostile to
my country. To feel even that disavowal
necessary, is sufficiently painful : I have
yielded however to circumstances, and made
it. My unequivocal manner Of making it, I
trust, will not leave a doi-.bt upon ore can-
did or honest mind. Still I am aware that
the common interchange of good ofirces
with a man with whom I have been long
nearly connected, may have given rise to
circumstances, which however innocent in
themselves, malignity -will delight in dis-
torting, ar.dthe illiberal among my political
adversaries exult in disser,-, inatng. I :¦
ware that there vvill be men base enou
you and I have not long since seen pi
it—to whisper even tin! circumstance of my
connection by marriage with col. Burr, as a
CtttumSt-ance warranting suspicion. About
the opinions of such men I am indifferent'.
To the more ingenuous and better part of my
fellow-citizens, of whatever sect or party, I
can only solemnly repeat, as I have done to
vou, sooner would I have perished than h»r-
bored a thought sub.lll,l«IMLMII......a—...,.- . -r^v
just Received,
Per the schooner Three-Friends, Kdtvard Har-
vey, frum Marseilln, Barcelona andMulag,i,
lO.S r.»v>ks Claret, iron hoops
lehies.
65 bales Writing Paper
41 qr. casks Malaga Wine
500 boxes Bloom and Musca.1 Raisins.
F«r sale, by
HENRY MESSONN1SR.
February 18. eo'ina.
German Evangelical Reformed
CHURCH LOTTERY.
500 Tickets drawn two last days.
Prizes of '2o dollars No. 54-99 6237 7354.
Prizes of 6 dollars Nos. 3846 3947 8093
873-2-8983 9079 9 |
