
    Greenwalt and others against Horner and others.
    In Error.
    
      May.
    
    Whatever will in equity- and conscience the plaintiff, b^giv^TrT’ ¿gr the gene-issue.
    has conveyed land subject to a right of way, ■with general warranty, is a competent witness for the defendant, in an action for disturbing the right, to prove an agreement for the removal of the road on a certain event.
    The grantee of land subject to a right of way, is entitled to the benefit of an agreement in relation to that right, entered into between those from whom he has derived his title, and those who claim the right of way 5 and in an action on the case, for disturbing the right of way, he may give such agreement in evidence.
    The statute of frauds and perjuries, has no operation on an agreement, not in writing, entered into between the petitioners for a private road, and the owner of the land over which it is to pass, in the presence of the viewers appointed to appraise the damages, in rélation to a removal of the road on a future event, where the agreement forms the basis of their estimate of the damages, and their report is confirmed by the Court, possession of the land taken by the petitioners, the damages paid, and a receipt for the amount given.
    FROM the record of this case, which came before the „ • r _ , . . . COUrt, on a writ or error to Dauphin county, it appeared to be a special action on the case brought by the plaintiffs in error, Jacob Greenwalt, Philip Leebrick, and Jacob Andrew, against John Horner, Jacob Keller, and David Keller, the defendants in error, for disturbing them in a right of way over the lands of one of the defendants. The plea was, guilty. The facts of the case were as follows:
    
      On the petition of Jacob Greenwalt, Philip Leebrich, and Samuel Eshelman, to the Court of Quarter Sessions of February, 1808, for a public road, from Killough Run, to a certain tract of land which they had purchased, viewers were appointed, who reported in favour of a private road, which they designated by courses and distances. At August Session, 1808, a petition was presented by the administrators of Peter Ebersole, deceased, over whose land the contemplated road was to pass, in consequence of which, reviewers were appointed, who reported, that the road, marked out, would be highly injurious to private property, and reported one by different courses and distances. This report was, after argument, set aside by the Court, and re-reviewers appointed, by whom a private road was reported over the lands of the heirs of Peter Ebersole, on nearly the same ground as had been returned by the first viewers. This report was confirmed, and an application was afterwards made by the administrators of Ebersole, for the appointment of viewers, to appraise the damages sustained by the owners of property in consequence of opening the road. Viewers were accordingly appointed, who made the following report.
    
      “■ That the petitioners for the said road, are to hang swinging gates on the said road at each end, at their expense, and in case any water works should be erected on Killough Run, and the said road be any obstruction unto mills of any kind of a public nature, the said petitioners are to remove the said road to the west, and the heirs of the said deceased, are to give them the privilege of ground for the said road ; and further we do report, that the petitioners for the said road, are to pay the sum of forty eight dollars damages for the said ground.”
    This report was confirmed by the Court, and the damages, paid by the petitioners.
    When the cause came on for trial, after the plaintiffs had gone through the evidence in support of their case, the defendants offered to prove, that when the viewers convened on the premises, for the purpose of estimating the damages, in the presence of the plaintiffs and the owners of the land, it was mentioned by the jury, that they would appraise the road without taking into view the mill seat, provided the parties would agree to move the road, in case any mill works should be erected on the ground over which it was laid out; ° . . ; that the plaintiffs agreed to this proposition, and consented to the removal of the road, whenever any mill works should be erected, provided the owners of the land would give them other ground for the road; that when the owners complained of the contemplated road spoiling the mill seat, and one of them observed, that he could build an oil mill, a fulling mill, or some other mill works on it, Leebrich said in the presence of Greenzvalt, if they could make a mill there, he would move the road, and be no hindrance to the mill; that he then said, they would move the road to the west, if mills should be built; that the jury then appraised the damages, only for the ground taken for the road, at forty-eight dollars, and did not consider the value of the mill seat; that the value of a mill seat there, at that period, was from five hundred to nine hundred dollars ; that the report, estimating the damages, was returned to the Court where the plaintiffs had an attorney, who superintended their interests, and conducted the proceedings in procuring the road, and that no exceptions were made to the report, but that it 'was agreed to, and the forty-eight dollars damages paid by the plaintiffs ; that the land of John Horner, one of the defendants, consisting of sixteen acres, over which the road passed, would not be worth twenty dollars an acre without a mill, and that he gave eighty dollars an acre for it; that he built a good two story chopping and clover seed mill; and that before he began the works, or to approach the road, he gave the plaintiffs liberty to make a new road west of the one laid out, and shewed them the ground on which to make it; that at the time the damages were appraised, the said sixteen acres belonged to the heirs of Peter Ebersole, deceased, whose son took them at an appraisement, and sold them in the year 1814, to George Horner, who was at that time married to one of Ebersole’s daughters, and that he in the spring of 1816, sold them to John Horner.
    The counsel for the plaintiffs, objected to the admission of evidence in support of these facts, but the Court overruled the objection, and an exception was taken to their opinion.
    jn SUpp0rt 0f some 0f the facts above stated, the defendants offered the testimony of two of the viewers, who „ . . , , , were first appointed to appraise the damages, and who reported that they could not agree, and that of two of the viewers by whom the damages were assessed. The admission of their evidence was resisted, on the ground of incompetency, but the Court received it, and a second bill of exceptions was tendered and sealed.
    The defendants then offered as a witness, George Horner, who with his wife, the daughter of Peter Ebersole, deceased, had conveyed the land over which the road passed, to John Horner, one of the defendants, with covenant of general warranty. Exception was also taken to his competency, but the Court admitted his testimony.
    The following points were then submitted, on which the plaintiffs’counsel requested the Court to give their opinion, in their charge'to the jury.
    
      First. Whether a private road laid out and confirmed by the Court, taken possession of by the petitioners, the damages for the same ascertained on view, the report of the viewers confirmed by the Court, by the procurement of the owners of the land, and the damages paid by the petitioners, can be again taken possession of, and regained by the owners of the land, except by an express agreement in writing, given by all the persons interested in, and using the said private road ?
    On this question, the Court were of opinion, that if at the time the vietvers are valuing the damages done by a private road laid out over a mill seat, the owners and petitioners, enter into an agreement, (which is substantially reduced to writing in the report of the viewers,) that the said road shall be taken possession of by the owner of the land, whenever it will interfere with the erection of a mill, Upon his giving land for another road near it, and afterwards upon the erection of the mill works, all the parties interested in, and using the road, enter into a private agreement with the owner, that he shall take the road for a mill race, it will be a.good and binding agreement.
    
      Secondly. Whether a private road, under the circumstances above stated, can be resumed by the owners of the land, before it is vacated ?
    The Court answered, that the parties interested in, and using the road, may vacate it in pursuance of such an agreement as is above mentioned, without application to the Court of Quarter Sessions for the purpose.
    
      Thirdly. Whether the defendants could, in this action, give in evidence the agreement alleged to have been made by the petitioners, under the plea of not guilty ?
    The answer was, that when the evidence was offered, the plaintiffs excepted to it; the Court admitted it, and a bill of exceptions was signed.
    
      Fourthly. In giving a construction to the report of the viewers, estimating the damages, which was confirmed. by the Court on the 4th September, 1810, the President was requested to deliver his opinion on the following points.
    1. As John Horner, and his co-defendants, were not, until the year 1816, in possession of the land through which the road passed, can they avail themselves of the terms of the report, on the issue now trying ?
    
      Opinion. They can.
    2. Do the terms of the said report, extend to the assignees of the heirs of Peter Ebersole, deceased ?
    
      Opinion. The terms extend to the holders of the land, claimed under, and through Ebersole’’s heirs, who owned it, at the time it was entered into.
    3. Are John Horner, and his co-defendants, entitled to the benefit of the said report, the said Horner, holding the land, not as heir of Peter Ebersole, deceased, but as assignee of George Horner, who purchased from the said heirs ?
    
      Opinion, They are entitled to those benefits.
    . 4. What in law is the effect of the statute of frauds and perjuries on the said report, and the agreement of the parties ?
    
      
      Opinion. The statute does not make null the agreement and report of the viewers.
    The 5th and 6th questions were answered in favour of the plalntiffs, and it is unnecessary to state them.
    
      7. When two or more parties enter into a contract, the r r , , , . _ performance of which, depends on a future contingency, does not the party who alleges the contingency to have taken place, and endeavours to compel a performance of the contract, make the performance on his part, a condition precedent?
    
      Opinion. In this case, upon the happening of the contingency, John Horner was bound to give notice to the plaintiffs, of his intention to appropriate the road, for the purpose of a mill race, before he did it.
    These questions were argued by Elder, for the plaintiffs in error, and by Ellmaker, for the defendants in error; after which,
   Duncan J.,

delivered the opinion of the Court.

This was an action on the case, for the disturbance of the plaintiffs’ right of private way, over the grounds of the defendants, or one* of them: the plea, not guilty. It was properly brought in case; for the freehold in the soil remained in the owners of the land. A question is not made, whether the plaintiffs could join in the action, and it is therefore, unnecessary to decide it. The plaintiffs* right of way, depended on certain proceedings in the Quarter Sessions, laying out and confirming the locus in quo,, as a private way, for the use of the petitioners and others. The land through which it ran, was the property of the heirs of Peter Ebersole, and is now the property of the defendant, Horner. The road was confirmed on 6th September, -1809. In December, 1809, on the petition of the administrators of Peter Ebersole, viewers were appointed to appraise the damages; and in April, 1810, they report, “that the petitioners for the road, were to hang swinging gates on said road at each end, at their expense ; and in case any water works should be built on Killough Run, and the road be any obstruction unto mills of any kind of a public nature, the petitioners were to remove the said road to the west side, being no disadvantage to said mills ; and the heirs of Peter Ebersole, were to give the privilege of ground for said road and they further report, “ that the petitioners for the road, were to pay jg 48 damages, for said ground.” On •the 4th September. 1810, the report was confirmed, and the . , , , . , , „ •petitioners paid the damages agreeably to the report. However irregular the petition of the administrators of Peter Ebersole might be, (for in this proceeding his heirs, and not •his administrators, should have been the petitioners,) however irregular it might be with respect to the substitution of another way, in case of the erection of mills, still, as the plaintiffs •deduce title by these proceedings, have acquiesced in them by paying the damages, it lies hot with them now to to object, for it is certain, that until the damages were paid, the petitioners could not have the road laid out.

The defendants, on the trial of the cause, when the plaintiffs had. gone through their evidence by producing the record of the whole proceedings, and the receipt for the payment of the damages, offered to prove, as in the first bill of ■exceptions.

[Here his honour read the bill of exceptions.]

The plaintiffs objected to this evidence as irrelevant, and the Court overruled their objection, and to this exception was taken. On this exception, depend the whole merits. It is contended, that all the evidence thus offered and admitted, was impertinent to the issue : First, for that if it could be received on any plea, it could not on the general issue. This objection is misconceived, for there is an essential difference between actions of trespass and on the case j the former are stricti juris, and therefore, a former recovery, release, or satisfaction, cannot be given in evidence on the general issue, but must be pleaded; but the latter is founded on the mere justice and conscience of the plaintiffs’ case, and is in the nature of a bill in equity, and in effect is so, and therefore, a former recovery, release, or satisfaction, need not be pleaded, but may be given in evidence ; for whatever will in equity and conscience, according to existing circumstances, preclude the plaintiff from recovering, may in case be given in evidence by the defendant, because the plaintiff must recover on the justice and conscience of his case, and on that only. Barber v. Dixon, 1 Wils. 45. Bird v. Randall, 3 Burr. 1353. 1 Wm. Bl. 388. On the general issue, the plaintiff is put to the proof of his whole case, and the defendant may give in evidence, any justification, or excuse of it. Birch v. Wilson, 2 Mod. 276. Bradley v. Wyndham, 1 Wils. 44. Brown v. Best, 1 Wils. 175. This is the general law. The cases of defamation, are an exception to this rule ; there, the truth of the words must be pleaded, but the cause of speaking the words, or publication in writing, may be given in evidence, warranting the act; as the character oí a servant given by his former master; words spoken by counsel pertinent to the matter in issue, and a variety of other matters, which go to bar the plaintiff’s recovery. But this very point has been decided; for in Newton v. Creswick, 3 Mod. 166, in case for obstructing ancient lights, on not guilty, the defendant was permitted to give evidence of a custom to build ancient foundations to any height. If the agreement, coupled with the report of the viewers of damages, was a valid one, then at least it amounted to a license on a given event, which event was offered to be proved ; the use of the road for mills. Now though a license must be pleaded in trespass, yet it may be given in evidence in case. 2 Mod. 6, 7. 1 Chitty’s Plead. 487. And in this State, the reception of evidence on the general issue, if not more liberal in our Courts, is not stricter than in the Courts of Westminster Hall. Nothing could form a stronger equity, than the defence set up by the defendants. The plaintiffs produced the report of the viewers of damages and a receipt for the payment: they made this report of the viewers a part of their own case,—indeed it was a part of their own title, without which they could not recover. The evidence was proper to shew, and to shew by the viewers, that this report, was founded on the agreement of the petitioners, was made on the ground at the time of the view, part of the res acta. But, it is objected, that all the parties were not present, and that the agreement of one, could not bind the .others. The answer is obvious : if this action is supportable at all, it must be, because the plaintiffs have a joint interest, and have received a joint injury; two of the plaintiffs at least came into the agreement, Leebrick and G-reenwalt, and all of them ratified it; accepted the report of the road on the terms thus agreed on. Whatever in equity takes away the right, takes away the remedy, and under the general issue, may be given in evidence. The evidence was properly received.

The second, bill of exceptions, is in substance the same, except that the objection is raised on the character of the witnesses, as being viewers. They were not offered to prove any matter in contradiction to the report; it was to corroborate it, and to shew the principles on which that report was founded ; it was because the petitioners agreed to remove the road, if a mill was erected, they did not estimate the value of the mill seat, lost by the road. The proposition of removing the road, came from the petitioners; shall they be permitted now to say, all this exceeded the authority of the viewers, when this excess arose from their own agreement and proposition, and was the leading consideration with the viewers in assessing the damages? They propose an expedient to lessen the damages ; the damages are estimated accordingly ; they accept and pay for, the road on these terms ; their own conditions; the owner of the ground accedes to this, and all is consummated by the receipt of the damages. It could not be endured, in an equitable action, as case is, that they should say, we will not take the road on these conditions, but will have it without any condition. Either this report is valid, or it is erroneous and void ; if valid, the plaintiffs have no cause of action j if void, they have no title on a void proceeding; the defendants have not obstructed the right of a way, which right did not exist. The viewers were competent witnesses, and their testimony relevant. If these conclusions are just, and the evidence property received, the plaintiffs have no ground to stand on.

The third bill of exceptions, relates to the admission of George Horner, as a witness. He conveyed the land on which the road ran ; he entered into a general warranty of the title, and nothing else ; no special warranty respecting the road; no covenant which has the least relation to the subject. On the general warranty of the title, he could not be in any re-, spect responsible for the right of way, established or annihilated, on any covenant he has entered into.

The last exception, is to the charge of the Court. The view I have taken of the subject, conforms to the opinion delivered by the Court, on the general question of the parties rights; it is unnecessary, therefore, again to repeat what I have stated with respect to their general rights. It remains here to review, and it shall be done with all brevity, the instruction given to the jury on seven questions proposed by the plaintiffs.

The fifth and sixth were favourable to the plaintiffs ; the three first are in reality the same. Did John Horner stand. in that situation, that he could avail himself of the terms of tjje report ? jfe possessed all the rights of the heirs of Peter Ebersole; he took the land, subject to this easement to the defendants; the freehold was in him, subject to this right of way; the agreement for substitution, ran with the land, was attached to the soil; the alienee took it with the burthen of this private way, but with all the conditions annexed to it; he held the freehold interest, just as the heirs of Peter Ebersole held, with all its rights, incidents and appurtenances.

Sixth. The statute of frauds and perjuries, has no bearing on the subject; the report of the viewers, is matter of record, part of the title of the plaintiffs, produced in evidence by them, and by producing the receipt for the damages reported, they furnish evidence in support of their agreement to its terms ; it is a contract, not executory, but executed; money paid, possession taken.

The seventh and last questions. The answer might have been more full and explicit, but we are bound to consider it, not as an answer to an abstract question, but with relation to the case before the Court; to the evidence given in the cause ; to the subject matter of inquiry. The privilege of a new road, in case of a mill being built, is secured by the report; the placé is marked out, it is to be west of the'land reported ; the petitioners were to remove it there; it was to be their own act; the privilege is described with sufficient certainty in the report; if not, the plaintiffs could have rendered it certain by any act of their own. If they had applied to the defendant, Horner, for a further assurance of the privilege, and he had refused, another question would have been raised ; but here, the defendant gave the plaintiffs notice of his intended erection of mills, before he obstructed the road; called on them to remove it to the west, agreeably to the report; this they refused; they refused the new road; the defendant could do no more than he did, the plaintiffs having refused a substitution of ground for the road.

Judgment affirmed.  