The opinion of the Court was delivered by'
Hustoit, J.
It is admitted that nothing was said in the court below on the subject of the judgment in favour of the defendant; and it is agreed, that on a motion in arrest of judgment, there cannot be a judgment entered for the defendant: this would preclude the plaintiff from another suit. It is true, that, generally, on a special verdict, there is a judgment for one party or the other; but in this case, and generally where the cause goes off on a motion in arrest of judgment, or for reasons depending on a mistake in declaration, or in the form of action, the judgment is only arrested; and the plaintiff may bring another action.
The different courts in England, from whence this state came as a colony, have distributed the administration of justice among them in such manner, that certain claims have been, for a long time, made in a court of chancery; and certain portions of them were, at one time, in the Ecclesiastical Court, and then, for a period, in the courts of common law, which last courts assumed jurisdicdiction to compel the payment of legacies, while the ecclesiastical courts were suspended under the commonwealth. Soon after the [148]*148restoration of the monarchy, the chancery became the more usual tribunal, and has, at length, superseded the jurisdiction of the com-< mon law courts as to legacies charged on land, except, perhaps, in' cases of express promise to pay, in consequence of some consideration.
We have neither ecclesiastical courts nor a court of chancery; and it could not have been tolerated, that so large a class of claims as legacies were ever irrecoverable in this colony or state. As our decisions, in former times, were not reported, we must speak with some doubt as to the mode, but certainly legacies were recovered in this colony long before the act of 1772, for the more easy recovery of legacies. The forms of declarations are in the manuscript book of forms of Tench Francis, Attorney General, more than twenty years before 1772. The act of 1772 enables the person, to whom any legacy, or bequest of any sum of money, or other goods or chattels has been made, to recover from the executors or administrators, with the will annexed, if there are sufficient assets, by action on the case, debt, detinue, or account-render, as the case may require, &c.
This did not in terms embrace the case of a legacy charged on the land devised to some particular person, subject to such legacy; for executors, unless there was a deficiency of assets to pay debts, could not touch lands so devised. In such cases, it was at one time the practice to bring ejectment against the devisee of the land so charged, and recover and deliver the possession to the devisee, until the- legacy was paid by perception of rents and profits. This was as far from any .thing known to the practice of courts of common law in England, as it was unsatisfactory, in most cases, do both legatee and devisee. Lands, of which only a small part was in cultivation, would not, by rents and profits, pay a few hundred dollars in a long time. The devisee was put out of possession—the legatee could not raise his money by a sale—and the remedy-required to be reconsidered, and, if possible, a better one discovered.
The case of Patton v. M‘Cauley, in 1782, occurred in Lancaster, while the late Judge Duncan was a student in the office of Mr. Yeates,, afterwards Judge Yeates. And in 1807, the suit of Brown v. Furer was commenced, but not finally decided until . 1818; (4 Serg. & Rawle, 213.) There the judgment was reversed, because it was personal against the defendants, and not as it should have been, a judgment to recover the money out of the land devised, subject to the payment of such legacy. In the same book, page' 509, in Gause v. Wiley, this matter came again under the consideration of this Court, and the doctrine was again fully discussed at the bar and by the several judges, and again it was decided that the executors ought to be made parties; because, if there remained debts of the testator unpaid, and no other fund, they must first be satisfied, even out of land specifically [149]*149devised, before a legacy charged on such land; and further, that the judgment ought to be, to levy the legacy out of the' land devised subject to the payment of it, and not general, against the defendants personally. From that time, debt for-a legacy charged on land, has been generally brought as directed- in' those cases; but cases have occurred, when debt could not be brought according to the principles peculiar to that action. The will under consideration is an example. The testator devises to his widow a certain sum of money to be paid annually, but he also devises six bushels of rye, two bushels of wheat, three bushels of buckwheat and four bushels of Indian corn, and fifty pounds of “good fat pork.” And such wills are ' very common in this state. Would debt lie for these several kinds of grain, and this pork 1 No. Are such devises not to be recovered in this state 1 If ejectment is brought, is the widow to hold a farm, producing much grain, and keep all to herself, or become tenant to the devisee for all above what is devised to her ? But these quantities of grain she is to receive annually, as long as she lives; when in possession by a recovery in ejectment, she is soon paid for time past, and must then restore the possession. But default is made and she recovers possession again, and so on to the end of her life. Such a remedy would be ruinous to both parties, and satisfactory to neither. Again, this year wheat is two dollars per bushel, and other grain, at a proportionally high price; and suppose it is not paid to her, and she brings ejectment and recovers, and when in possession, wheat and other grain sell for half the. present price; is she to take bushel for bushel, or as much wheat, &c., as would indemnify her for being compelled to purchase this year—and if so, how are the relative prices and proportions to be settled 1
If there is a difference any where as to the obligatory force of judgments on land, depending on whether the debt was originally evidenced by writing under seal, or-depending on parol proof, that difference don’t exist here ; a judgment creditor can levy on, and sell the lands of his debtor, without regard to what was the nature of his debt before it became a judgment; and this is also the case whether the form of action was covenant, or debt, or assumpsit, or case, or trespass: and I can see no reason why this court should not support against the executors and devisee, debt or case, or any other action suited to the facts of the case; and on suggesting in any one of these actions all the facts which constitute the claim a lien on a specific tract of land, and claiming a judgment to be levied on that land, recover in one form of action as well as in another. The same reasons which induced the court to sustain debt on a money legacy ■ charged on land, will be found to exist and to apply, with at least equal force, to induce them to support case ,to recover a quantity of grain, or wood, or meat, or all of them, charged to be delivered annually to .a devisee, by a person to whom a particular tract is given.
[150]*150In the case of Long v. Long, (1 Watts, 269,) Judge Kennedy has shown that debt against, what is called the pernor of the profits, was well known to the common law. Perhaps in modern times in England, such claims are now brought in chancery.
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The opinion of the Court was delivered by'
Hustoit, J.
It is admitted that nothing was said in the court below on the subject of the judgment in favour of the defendant; and it is agreed, that on a motion in arrest of judgment, there cannot be a judgment entered for the defendant: this would preclude the plaintiff from another suit. It is true, that, generally, on a special verdict, there is a judgment for one party or the other; but in this case, and generally where the cause goes off on a motion in arrest of judgment, or for reasons depending on a mistake in declaration, or in the form of action, the judgment is only arrested; and the plaintiff may bring another action.
The different courts in England, from whence this state came as a colony, have distributed the administration of justice among them in such manner, that certain claims have been, for a long time, made in a court of chancery; and certain portions of them were, at one time, in the Ecclesiastical Court, and then, for a period, in the courts of common law, which last courts assumed jurisdicdiction to compel the payment of legacies, while the ecclesiastical courts were suspended under the commonwealth. Soon after the [148]*148restoration of the monarchy, the chancery became the more usual tribunal, and has, at length, superseded the jurisdiction of the com-< mon law courts as to legacies charged on land, except, perhaps, in' cases of express promise to pay, in consequence of some consideration.
We have neither ecclesiastical courts nor a court of chancery; and it could not have been tolerated, that so large a class of claims as legacies were ever irrecoverable in this colony or state. As our decisions, in former times, were not reported, we must speak with some doubt as to the mode, but certainly legacies were recovered in this colony long before the act of 1772, for the more easy recovery of legacies. The forms of declarations are in the manuscript book of forms of Tench Francis, Attorney General, more than twenty years before 1772. The act of 1772 enables the person, to whom any legacy, or bequest of any sum of money, or other goods or chattels has been made, to recover from the executors or administrators, with the will annexed, if there are sufficient assets, by action on the case, debt, detinue, or account-render, as the case may require, &c.
This did not in terms embrace the case of a legacy charged on the land devised to some particular person, subject to such legacy; for executors, unless there was a deficiency of assets to pay debts, could not touch lands so devised. In such cases, it was at one time the practice to bring ejectment against the devisee of the land so charged, and recover and deliver the possession to the devisee, until the- legacy was paid by perception of rents and profits. This was as far from any .thing known to the practice of courts of common law in England, as it was unsatisfactory, in most cases, do both legatee and devisee. Lands, of which only a small part was in cultivation, would not, by rents and profits, pay a few hundred dollars in a long time. The devisee was put out of possession—the legatee could not raise his money by a sale—and the remedy-required to be reconsidered, and, if possible, a better one discovered.
The case of Patton v. M‘Cauley, in 1782, occurred in Lancaster, while the late Judge Duncan was a student in the office of Mr. Yeates,, afterwards Judge Yeates. And in 1807, the suit of Brown v. Furer was commenced, but not finally decided until . 1818; (4 Serg. & Rawle, 213.) There the judgment was reversed, because it was personal against the defendants, and not as it should have been, a judgment to recover the money out of the land devised, subject to the payment of such legacy. In the same book, page' 509, in Gause v. Wiley, this matter came again under the consideration of this Court, and the doctrine was again fully discussed at the bar and by the several judges, and again it was decided that the executors ought to be made parties; because, if there remained debts of the testator unpaid, and no other fund, they must first be satisfied, even out of land specifically [149]*149devised, before a legacy charged on such land; and further, that the judgment ought to be, to levy the legacy out of the' land devised subject to the payment of it, and not general, against the defendants personally. From that time, debt for-a legacy charged on land, has been generally brought as directed- in' those cases; but cases have occurred, when debt could not be brought according to the principles peculiar to that action. The will under consideration is an example. The testator devises to his widow a certain sum of money to be paid annually, but he also devises six bushels of rye, two bushels of wheat, three bushels of buckwheat and four bushels of Indian corn, and fifty pounds of “good fat pork.” And such wills are ' very common in this state. Would debt lie for these several kinds of grain, and this pork 1 No. Are such devises not to be recovered in this state 1 If ejectment is brought, is the widow to hold a farm, producing much grain, and keep all to herself, or become tenant to the devisee for all above what is devised to her ? But these quantities of grain she is to receive annually, as long as she lives; when in possession by a recovery in ejectment, she is soon paid for time past, and must then restore the possession. But default is made and she recovers possession again, and so on to the end of her life. Such a remedy would be ruinous to both parties, and satisfactory to neither. Again, this year wheat is two dollars per bushel, and other grain, at a proportionally high price; and suppose it is not paid to her, and she brings ejectment and recovers, and when in possession, wheat and other grain sell for half the. present price; is she to take bushel for bushel, or as much wheat, &c., as would indemnify her for being compelled to purchase this year—and if so, how are the relative prices and proportions to be settled 1
If there is a difference any where as to the obligatory force of judgments on land, depending on whether the debt was originally evidenced by writing under seal, or-depending on parol proof, that difference don’t exist here ; a judgment creditor can levy on, and sell the lands of his debtor, without regard to what was the nature of his debt before it became a judgment; and this is also the case whether the form of action was covenant, or debt, or assumpsit, or case, or trespass: and I can see no reason why this court should not support against the executors and devisee, debt or case, or any other action suited to the facts of the case; and on suggesting in any one of these actions all the facts which constitute the claim a lien on a specific tract of land, and claiming a judgment to be levied on that land, recover in one form of action as well as in another. The same reasons which induced the court to sustain debt on a money legacy ■ charged on land, will be found to exist and to apply, with at least equal force, to induce them to support case ,to recover a quantity of grain, or wood, or meat, or all of them, charged to be delivered annually to .a devisee, by a person to whom a particular tract is given.
[150]*150In the case of Long v. Long, (1 Watts, 269,) Judge Kennedy has shown that debt against, what is called the pernor of the profits, was well known to the common law. Perhaps in modern times in England, such claims are now brought in chancery. We have no court of chancery: we have sustained actions at law, for which there was no precedent, to attain justice in a clear case, as Lang v. Keppele, &c. Brown v. Furer, has been cited; and in Pidcock v. Bye, (3 Rawle, 183,) before the Chief Justice at a Circuit Court, and before this court, on appeal, assumpsit was supported, and a special judgment to be levied on the lands agreed to be charged, was entered; possibly debt could have been sustained in that case, which was for a precise sum of money. But in this case debt would not lie for grain, meat, hay, and firewood; and perhaps it is in a special action, such as this, that a recovery must always be had, for nondelivery of such articles as are here sued for.
But it is said that this suit is for articles agreed on at a family settlement and consultation of friends, to be paid to the widow, beyond what is directed to be delivered to her by the will, and that if the plaintiff succeeds, it will be 'establishing a lien by parol, and that this cannot be done in Pennsylvania. It is better in the decision of causes, to try and decide the case before us: the jury have found that the defendant is in possession of the lands which are to be affected by this judgment, at the time when he purchased, expressly subject to the articles directed to be delivered to the widow by the will, and also subject to the payment and delivery to her of the articles specified in the award, and agreed to by the whole family; and that these lat- . ter were omitted to be inserted in the deed by the mistake of the scrivener. Now it may be that an innocent purchaser, for valuable consideration,-actually paid before notice of this award and agreement, might hold this twenty-four acres discharged from this incumbrance, and yet that the land may be subject to it in the hands of Jacoby, who not only had notice of it, but actually agreed to pay and deliver the matters which are the subject of this suit. I say the law and the justice of the case might be different in the case of an innocent and bona fide purchaser. I do not pretend in this case to designate what facts or circumstances would produce such results.
This court is of opinion that under the finding of the jury in this case, and in this form of action, judgment ought to have been entered for the plaintiff; the sum found and costs to be levied of the said tract of twenty-four acres forty-eight perches of land so conveyed to him, as stated in the declaration. Beyond all question he got the land on paying a less sum in cash, on account of these matters charged on it, and which he agreed to pay: to refuse is unjust in him. The judgment will not affect any of the- other defendants; because it is' in truth, a judgment, not against any person, but against a specific tract of land. Several of the cases cited, prove that this may be done, and was done in'England, in actions of debt against the terretenant or [151]*151pernor of profits. To change the forms of proceeding in actions at law, when applied to the purposes known and sanctioned, is one thing; to extend the forms of law, when wernre exercising chancery-powers, or when we are compelled Jo apply those forms to new cases, is a different thing. If it were worth while to make a careful examination, one could find that judgments conditional and uncertain as to the time when they were to take effect, and uncertain whether ever they were to take effect, were once known to the common-law. The action of warranlia charts could be brought and tried, and judgment obtained before tfie plaintiffs were injured, or even threatened with a suit. The judgment was not for a specified sum of money, nor for money at all; nor for any specific quantity of land, or particular parcel of land; but to recover from the defendant lands of equal value with those warranted loffhe plaintiff; and nothing could be done on this judgment until the plaintiff was evicted from the lands warranted to him by the defendant. There will be found more than one case, in which in a suit against several who sever in their pleas, a judgment will be had against one and not against the others; one instance is a suit by a creditor of' a testator against two executors, who severally plead that each has administered all the assets which came to his hand, and the plaintiff replies to each that he has wasted the assets; the issues may be found one for the plaintiff, and the other executor may have a verdict. The alarm which is pretended when a conditional verdict is sustained, or a judgment given, which is to affect only the person or the-property which ought to pay, does not disturb me. In a few years all the applications of the common law forms to new cases, from Lang v. Keppele to this time, have met the approbation of those learned in the law, and honest in principle; and perhaps no case called for the interference and assistance of the court more imperiously, than those very common provisions for widows, of grain, wood, meat, &c. charged on particular tracts.
’ Judgment reversed.