An Essay on Professional Ethics: Second EditionSharswood, George
Philosophy
An Essay on Professional Ethics: Second Edition
Sharswood, George
Legal ethics -- United States
There is another decision of the Supreme Court of Pennsylvania, not so
bold and avowed an act of judicial legislation as that just mentioned,
but not less transparent, which may be cited as strongly illustrating
the same consequences of uncertainty and litigation flowing from a
disregard of the principle adverted to. From the year 1794, there had
existed in Pennsylvania an act of Assembly limiting the lien of the
debts of a decedent on his real estate, at first to seven, afterwards to
five years. No question ever arose before the court in regard to it.
Lien was considered to mean lien and not obligation: lands to be subject
to execution for all debts of the owner prosecuted to judgment, and of
course not barred by the Statute of Limitations; and the limitation of
the lien merely intended for the protection of purchasers from the heirs
or devisees or their lien creditors. Such was recognized to be the true
meaning of the law in 1795 (Hannum _v._ Spear, 1 Yeats, 566), and so
distinctly ruled in 1830 (Bruch _v._ Lantz, 2 Rawle, 392); yet on
grounds palpably only relevant to what, in the opinion of the court, the
law ought to be, it was held in 1832, in Kerper _v._ Hoch (1 Watts, 9),
that the period named was a limitation not of the lien but of the debt
itself, and available in favor of heirs and devisees, volunteers under
the debtor and succeeding to his rights _cum onere_. As we have seen,
but two cases are to be produced of litigation arising out of this law
carried to the highest tribunal from 1794 to 1832. More than twenty
cases are to be found reported since, in which that court has been
called upon to draw distinctions and settle the precise extent of their
own law. Thus a little complicated system has grown up on this
construction of the act. A volume, indeed, might be written on Kerper
_v._ Hoch and its satellites, when if the act had been let alone to
speak for itself, and the prior decision followed, it would have been a
simple and intelligible rule of action, until the legislature saw fit
to alter it. It seems that this consideration pressed upon at least one
of the judges, who joined in that decision; for in a subsequent case,
when Kerper _v._ Hoch was cited, that Judge, with characteristic candor,
interrupted the counsel with the remark: "We will abide by the rule, but
it was erroneously decided." (Hocker's Appeal, 4 Barr, 498.)
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