#### **Wm.*Webb *against*B. Fish, adm’r. of Jesse Eldridge, dec.

in error.

THE declaration sets forth a bond, given by *William Webb*to *Jesse Eldridge,*in his life-time, dated the 11th day of *July*.1806, for the sum of 500 dollars, with condition in the words following : “The condition of this tion is, that if the said *William Webb,*his executors,, . . administrators, and every 01 them, do perform the award of *George Elkinton, Jacob Haley,*and *Jonathan Dallass,*arbitrators, chosen between the said *William Webb*and *Jesse Eldridge,*to arbitrate of and concerning a certain road, part whereof is on said *Eldridge,*and part on said *Webb,*so as the said award be made under the hands and seals of said arbitrators, or any two of them, and ready for delivery on or before the first day of *August*next, then the said obligation to be void, or else to remain in full force and virtue.”

Suit by adfo^breach^f 3f" (a)

Action on bond with special condi^QtdeJer’ tered for the PenalY- (b)

The declaration further sets forth, “ that the arbitrators on the 16th of *July*1806, made their awards under their hands and seals, of and upon the premises; and did award and order, first, that the causeway and road formerly made by *George Elkinton*and *Joseph Brachney,*beginning at the fast land near the edge of the swamp, at a stone in the line of the said *William Webb*and *Jesse Eldridge,*running thence on said *Webb*near the line between said *Webb*and *Eldridge,*one hundred and sixty-three rods, should be and remain where it then was, and should be looked upon as the joint property of both said *William Webb*and *Jesse Eldridge,*and their heirs and assigns forever, to use, possess, and enjoy, as a road, free and clear of any molestation, each from the other; and that the same should be maintained jointly between the said *Webb*and *Eldridge*
      *426and their heirs and assigns. And secondly, that the said *Eldridge*should pay to the said *William, Webb,*in ninety days, with interest, the sum of one hundred and thirty-four dollars.” The declaration then avers, that the submission in the condition of the bond is the same of which the arbitrators awarded; that the said *Jesse*paid the said *William,*in pursuance of the said award, the sum of one hundred and thirty-four dollars, with interest, which the said *William*accepted; and that the said *William*did not allow the said causeway and road to be and remain as it was, at the *time of the date of the said award, and to be looked upon as the joint property of both said *Jesse*and said *William,*and their heirs and assigns forever, to use, possess, and enjoy, as a road, free and clear of any molestation from the said *William,*and to be maintained jointly between the said *William*and *Jesse,*and their heirs and assigns ; that the said *William,*after the making of the said award, and receiving the said sum of one hundred and thirty-four dollars, *viz.*on the first day of *January*in the year of our Lord one thousand eight hundred and eight, did molest the said *Jesse*in the use and enjoyment of the said road, in the township of *Downe*and county aforesaid, and did obstruct the said *Jesse*in the use and enjoyment of the said road, by laying bars and gates in the way of the said road, and by overflowing the adjoining meadows, and has continued so to molest and obstruct the said *Jesse*in the use and enjoyment of the said road, until the time of the death of the said *Jesse,*who died on the. fourteenth day of *September*1812 ; and since his death has continued to molest and obstruct the heirs and assigns of the said *Jesse,*in the use and enjoyment of the said road, contrary to the form and effect of the said writing obligatory, and of the said condition thereof, whereby an action hath accrued &c. Breach in common form.

The defendant pleaded, that he, the said *William,*did not, after making the said award, *to wit:*on the first day of *January*1808, obstruct the said *Jesse*in the use and enjoyment of the said road, by laying bars and gates in the way of the said road and by overflowing the adjoining meadow, and continue so to molest and obstruct the said *427
      *Jesse*in the use and enjoyment of said road, until the time of the death of the said *Jesse,*nor has he, the said *William,*continued to molest the heirs and assigns of the said *Jesse,*in the use and enjoyment of the said road, contrary to the form and effect of the said writing obligatory and of the said condition thereof.

The cause was tried at *September*term 1816, and the jury “ find for the plaintiff, and assess the damages of the plaintiff, by reason of the breach of the condition of the bond, in the declaration mentioned, at one hundred and fifty dollars.”

Judgment was given for the plaintiff for his debt of 150 dollars, and his damages aforesaid, and signed 24th *September*1816.

On the trial, the plaintiff, to maintain and prove the issue on *his part, offered to prove, “ that the public were prevented from using and travelling the road in the declaration mentioned, by reason of the obstructions erected thereon by the defendant, whereby the said *Eldridge*was injured in his tavern and ferry to which said road led.”

The plaintiff further offered to prove, “ that certain obstructions were placed in the said road by the defendant, and the acknowledgment of the said defendant thereof, at times subsequent to the said award and prior to the commencement of the action, and since the death of *Jesse Eldridge*in the declaration mentioned, as in the said declaration alleged:” which evidence was objected to by the counsel for the defendant; the objection overruled by the court, and the evidence admitted.

The errors assigned are, 1. That the declaration, and that the matters therein contained, are not sufficient in law for the said *Benjamin Eish,*adm’r. &c., to have and maintain his aforesaid action against the said *William Webb.*

2. The court admitted incompetent and unlawful testimony to be given to the jury, by the plaintiff below.

3. The judgment is entered for the sum found by the jury, whereas it ought to have been entered for the sum mentioned in the bond set forth in the declaration.

*428
      *D. Elmer*and *Ewing,*for plaintiff, contended,

1. That administrator could not maintain a suit for the breach of the covenant for quiet enjoyment, where the breach was subsequent to the death of the defendant. 3 *Baa. Exec.*let. *M.*And that this error was not cured by the verdict. It was a defective title, and not a title defectively set out. *Saun.*171. 2. That the covenant was for the use of the road by *Eldridge,*his heirs and assigns, and evidence that he objected to the public using the road, was no evidence of a breach of the covenant, and therefore inadmissible. 2 *Bl. Com.*35. And, that evidence of injury, since the death of *Eldridge,*was evidence of injury to his heirs, not to the plaintiff, who was his administrator. 2 *John.*283. 3. The judgment should have been for the penalty, not the verdict. *Pat.*255. 1 *Saun.*53. 2 *Saun.*58, 187. 8 *John.*111.

*Crane*in answer, on

1. Referred to 2 *Swift.*1 *Sell.*533. 2. The meaning and object of the covenant was, that the ■public should use the road for the benefit of *Eldridge’s*tavern *and ferry. And 3. That this entry of the judgment, if an error, was a clerical error, which might be amended.

See *Chapman vs. Holmes, 5 Hal. 20, 35. Petrie vs. Voorhees, 3 C. E. Gr. 285. Stothoff vs. Dunham, 4 Har. 181.*

*Roll vs. Maxwell, 2 South. 493. Tunison vs. Cramer, 2 South. 498. Ordinary vs. Hart, 5 Hal. 65. Richman vs. Richman, 5 Hal. 114. Graecen vs. Allen, 2 Gr. 75. Hunt vs. Allen, 2 Zab. 533. Allen vs. Hunt, 3 Zab. 376. Allen vs. Smith, 7 Hal. 160. Griffith vs. Jones, Pen. *932.*Plaintiff may recover more than the penalty, *Robbins vs. Long, 1 C. E. Gr. 59.*

Kirkpatrick G. J.

Remarked that the award does not authorise the use of the road for the public. It is confined to the *heirs*and *assigns*of *Eldridge;*the evidence, therefore, that the defendant obstructed the public, was inadmissible. The' judgment is erroneous; it should have been entered for the penalty; but were this the only error, he would have been disposed to suspend the judgment until the amendment could be made by the court to which the writ of error was directed. As to the obstruction to the heirs, he expressed no decided opinion.

*Rossell*J. concurred with the Chief Justice. *Southard J.*was with the plaintiff in error, on all the points.

Judgment for plaintiff in error.