incumbrancers, by relation, the benefit of his security to the ex< tent of the whole estate. To the same effect is Bellas v. McCarty, 10 Id. 22. On the principles there settled, it can scarcely admit a doubt, that, had the buildings, including the machinery, been destroyed by fire, whether caused by accident or design, the loss would be borne by the purchaser, on the reasonable principle, that, in contemplation of equity, he is owner of the premises from the time of the sale. The law is equitable and just; for, as he must bear the loss, so, if any benefit accrues to the premises in the mean time, he is entitled to the advantage of it. The learned judge of the common pleas seems to have been carried away by the erroneous idea, that the administrator has a remedy for the injury, but the purchaser has none; that Mann, having no right to the possession of the farm until the first of April, 1846, and the stills and other apparatus being taken before that time, the administrator, and he alone, had power to bring suit.

It is very true that Mann can not maintain an action of trespass, because he was not in the actual possession of the premises; but what prevents him from sustaining a special action on the case? It must be recollected that the trespass complained of is an injury to the inheritance; and can it be doubted that the owner has a right of action in such a case against a wrong-doer? Is it in principle anything more than the case of an injury to the inheritance, when in possession of a tenant? and has it ever been questioned that an action by the owner lies for waste either against the tenant or a stanger? The court were of opinion that the remedy was with the administrator alone. In this view, it will be perceived we differ from the court of common pleas. The administrator who makes the sale is but the officer of the court: Bashore v. Whisler, 3 Watts, 494. He has not, by virtue of his power, either the actual or legal possession of the premises. That is in the heirs. He surely is clothed with no greater power than a sheriff, who is the officer of the law; and it will scarcely be pretended that the sheriff in such a case can sustain the suit. But, however this may be, and without attempting to define the extent, either of the power of the sheriff or of the administrator, we are of opinion that the remedy was vested in the purchaser; and, consequently, he must seek redress for the wrong done in taking and carrying away the apparatus pertaining to the distillery.

Although not perhaps very material, yet we would wish to correct an idea thrown out by the court, which, if left without

notice, might lead to error. I allude to that part of the charge where the court say: "Owing to an exception having been filed to the confirmation of the sale by the administrator, at the February term, he (the administrator) was not able to make a deed or the first of April, 1846, so that the purchaser was not bound to comply on his part, if he had seen proper to refuse." This has never been held to be law as to sheriff's sales, nor do we conceive this rule ought to be applied to sales by an administrator. Time is not of the essence of the contract, and the principle applied to all judicial sales, as has been repeatedly ruled, is caveat emptor. The purchaser knows that the sale is open to exception by creditors. Establish the principle ruled by the court, and it will be an easy matter for a purchaser to escape from an imprudent bargain by collusion with a creditor, inducing him to file exceptions so as to delay the confirmation. of the sale.

But stress is laid on the evidence, which, if believed, proves that Mann told Robb, he would pay no more money, unless Robb would make good to him the utensils in the distillery, and that Robb replied, "If you will let me have one hundred dollars, I will have the utensils brought back, or make you compensation for them;" that relying on the promise of Robb, one hundred dollars were paid by Mann to him, and on the third or fourth of April he took possession of the farm. But, if we are right in the view we have taken, the objection to this part of the charge is conclusive. The promise, if made, can not bind the estate, but the administrator himself; nor him, if the promise is without consideration. The payment of the money was no consideration, because he merely did what he was bound to do by his contract. He in truth was guilty of a wrong, by refusing to pay according to his contract. This can not furnish a foundation for a promise, for it would enable the defendant to obtain an advantage by a refusal to perform his agreement. There are other points which have been argued by counsel, which it is unnecessary to notice because it is believed that the views of the case taken embrace the whole case, and there can be but little difficulty on another trial.

Judgment reversed, and a venire de novo awarded.

CONFIRMATION OF PROBATE SALE, necessity and effect of, and purchas er's rights before confirmation: See Rea v. McEachron, 28 Am. Dec. 471; Klingensmith v. Bean, 27 Id. 328; Taylor v. Cooper, 34 Id. 737, and the notes thereto. As to the necessity of confirmation of judical sales generally, and the purchaser's title before confirmation, see Tooley v. Gridley, 41 Id. 628;

Wagner v. Cohen, 46 Id. 660, and cases cited in the notes thereto. The doctrine of the principal case, that a purchaser at an administrator's sale is deemed, in equity, to be the owner from the time of sale, is doubted by Strong, J., in Demmy's Appeal, 43 Pa. St. 169, where he says that the remarks of Rogers, J., on that point "seem to be outside of the case."

RIGHTS OF PURCHASER AT EXECUTION SALE BEFORE CONVEYANCE: See Halley v. Oldham, 41 Am. Dec. 262; Oviatt v. Brown, 45 Id. 539.

TITLE OF PURCHASER OF LAND GENERALLY BEFORE CONVEYANCE: See Hampson v. Edelen, 3 Am. Dec. 530; Jackson v. Morse, 8 Id. 306; Holmes v. Schofield, 29 Id. 364; Pitts v. Bullard, 46 Id. 405; Ives v. Cress, 47 Id. 401; Chapman v. Glassell, 48 Id. 41; Rucker v. Abell, Id. 406; Doe v. Haskins, 50 Id. 154, and notes. In Siter, James & Co.'s Appeal, 26 Pa. St. 180, the principal case is cited to the point that a vendee of land is regarded in equity as the owner after the agreement of sale and part payment, and that any increase in value is his gain and any decrease his loss.

THAT AN ADMINISTRATOR'S SALE IS REGARDED AS A JUDICIAL sale is a point to which the principal case is cited in Halleck v. Guy, 9 Cal. 196.

RULE OF CAVEAT EMPTOR APPLIES TO EXECUTION SALES: Danley v. Rector, 50 Am. Dec. 242, and cases cited in the note thereto.

TIME IS OF ESSENCE OF CONTRACT, WHEN: See Jones v. Robbins, 50 Am. Dec. 593, and note. See also the note to Johnson v. Evans, Id. 675–679.

YOXTHEIMER v. KEYSER.

[11 PENNSYLVANIA STATE, 364.]

PROMISE BY BANKRUPT AFTER DISCHARGE TO PAY DISCHARGED DEBT " soon as he got able," and to pay "all his honest debts as fast as he could," except certain ones in the city, will not revive such debt.

ASSUMPSIT. The debt sued for had been discharged by proceedings under the bankrupt act, but the plaintiff relied upon a promise made after the discharge to revive it. The promise is stated in the opinion. The court below being requested to charge the jury that the plaintiff could not recover by reason of the promise without proof that the defendant had afterwards acquired sufficient property to pay all his debts, the court charged that if the jury believed that the promise was made as stated, and that then and afterwards the defendant was able to pay this debt, the plaintiff should have a verdict. Verdict and judgment for the plaintiff, and the defendant brought error. Jordan and Hegins, for the plaintiff in error.

Miller, contra.

By COURT. That the plaintiff in error came as near to fix himself by a promise to pay as he could without doing so, is extremely clear; but he seems to have studiously kept himself

on the windy side of the law. To an inquiry whether he would pay this debt, he replied that "he was going to pay it as soon as he got able," and that he was going to pay all his honest debts, except some in the city.

This, though expressive of an intention, did not constitute an engagement, which is necessary to give legal effect to a moral obligation; it is not enough that there was a recognition of the debt, which, in McKinley v. O'Keson, 5 Pa. St. 369 (where, however, there was an absolute promise), was perhaps too broadly said, in reference to a bankrupt, to be evidence of a promise to pay. The effect of such evidence has been carried very far to avoid the statute of limitations; much further than it ought to be in order to avoid a bankrupt's discharge, which would otherwise be a dead letter. The bankrupt in this case expressed the same intention to pay all his honest debts, except those in the city, and he certainly did not mean to waive the benefit of his discharge as to all the rest. If the foundation of the action fails, it is unnecessary to consider the other exceptions.

Judgment reversed.

PROMISE TO PAY DEBT DISCHARGED BY BANKRUPTCY, sufficiency of: See Merriam v. Bayley, 48 Am. Dec. 591, and cases collected in the note thereto.

MCDONALD v. SCAIFE ET AL.

[11 PENNSYLVANIA STATE, 381.]

EVIDENCE OF OWNERSHIP IN REPLEVIN, BEING A DISPUTED FACT, IS FOR JURY, and the court can not instruct them that the evidence shows title in one of the parties.

MEASURE OF DAMAGES IN REPLEVIN, where the defendant retains the property, is ordinarily its value with damages for the detention, which is usually interest on the value from the taking.

EXEMPLARY DAMAGES ARE ALLOWABLE IN REPLEVIN where circumstances of aggravation and outrage attend the taking or detention.

REPLEVIN for a boat. One question in the case was as to the ownership, upon which there was an exception to the ruling of the court leaving the matter to the jury. Another exception was to an instruction that the jury, in assessing the damages, might take into consideration any circumstances of aggravation appearing in the case. Verdict for the plaintiff for the value of the property and for five hundred dollars damages, and judg ment thereon. The defendant brought error.

Darragh, attorney general, for the plaintiff in error.

Shinn and Williams, contra.

By Court, ROGERS, J. Two errors are assigned, one of which only it will be necessary particularly to notice, as the first is clearly untenable. It would have been an unwarrantable interference with the province of a jury, for the court to have instructed them, as a matter of law, that the testimony given showed such a sale and delivery of the boat as vested the right in the owner of the steamboat Arrow. The evidence of ownership was a disputed fact, which was left properly to the decision of the jury. The only possible difficulty there can be in the case, is in the second error, in directing the jury to find the value of the property at the time of the taking, and also damages for the taking, according to the ordinary rule in trespass, taking into consideration any circumstances of aggravation that appear in the case. Of the charge in this respect, the plaintiff in error complains. He alleges that under the charge the jury gave exemplary damages, taking into consideration the personal violence of Captain McDonald to Captain Jones, an agent of the plaintiff; and also the defamatory words proved to have been used on that occasion. If the jury so far misunderstood the direction (which I can not well suppose), as to allow such considerations to swell the amount of damages, it is an injury which we can not redress. The defendant can only be relieved on a motion for a new trial. The jury were instructed, as in trespass, to take into consideration circumstances of aggravation which appeared in the case; that is to say, such outrages as attended the taking and detention of the property. With this explanation, was the court right in the rule given to the jury for estimating the damages?

In an action of replevin, where the defendant retains the property, the measure of damages is ordinarily the value of the property, and damages for the detention, which is usually the interest on the value from the time of taking: Wilkinson on Replevin, 6 L. L. 31; Hosack v. Weaver, 1 Yeates, 478; Easton v. Worthington, 5 Serg. & R. 130; Etter v. Edwards, 4 Watts, 63; Moore v. Shenk, 3 Pa. St. 20 [45 Am. Dec. 618].

But though this is the general, yet it is not the universal rule, for circumstances may attend the taking and detention which will justify the jury in giving exemplary damages. The exceptions are as well settled as the rule itself. Thus, when the taking or detention, or both, are attended with circum