circumstantial. This reluctant remark is forced from the Court upon reviewing the one hundred and twenty-eight pages of testimony written down in this case.

George Harger was an important witness on behalf of the Commonwealth. He was assailed before the jury, and on the argument of this motion he was denounced (by Mr. Brady) in a philippic equal in power and polish to anything of the sort it has ever been the lot of this Court to listen to, or to admire. The man was denounced, but his evidence was not assailed. The denunciation of Harger is a double-edged sword, for it is well known that Harger was the man of all work, the privy counsellor, the companion and closet friend of Leverton Thomas, for more than half an ordinary lifetime. Nascitur a socio.

The testimony of Harger, if untrue, had a hundred vulnerable points. So far from being contradicted, he is corroborated, in various ways, by witnesses hostile, and by a singular variety of facts and circumstances which no cunning or ingenuity could foresee, prepare, prevent or control. It is reasonable to suppose a bad man will prefer truth to falsehood, if truth will serve his purpose and falsehood will not; but here the witness had no interest, and whether he had a motive, known only to himself, or whether he had none, his evidence bears upon its face the intrinsic force of truth. But there is evidence enough to justify a conviction in this case, independent of the testimony of George Harger.

The fatal agency of Harger, which roused the wrath of the defence, is the fact that he, who got access to these forgeries, furnished them to the Commonwealth. That these were forgeries, Harger knew right well.

Leverton Thomas, an aged and wealthy man, has now finished a career crooked and successful, hitherto. And when a court of justice is appealed to in strains of eloquence that lacerate our sympathies as a man, we must remember that some pity is due to the victims of fraud and forgery, and some protection owing to the citizens, some fealty due to justice and the law of the land. The prisoner felt no commiseration for this old man, the prosecutor, or his aged wife, when he swept from them the last remnant and turned them adrift on the charity of the world, or the hospitality of the poor house.

The prisoner, who is known by thousands of citizens of Washington and Allegheny counties, could not venture in the hour of his need to call a single witness to testify that he had any character for honesty at all. This remark is now made for the first time. At any other stage of the proceedings it would have been improper, here and now it is not out of place.

The motions for a new trial and in arrest of judgment are over ruled by the Court.

In the Supreme Court of Pennsylvania.

HOLE v. RITTENHOUSE.1

(Vol. III., p. 356, 1856. Reported 1 Casey 491.)

ERROR to Columbia County.

The following dissenting opinion was delivered by

BLACK, J.-This case is so important in its principle, so curious in its history, and so alarming in its result, that I feel bound to put on record a brief statement of my own views.

The plaintiff had three tracts of land regularly surveyed, adjoining one another. The Commonwealth was paid by the original warrantees for every acre included within them, and the title had passed from hand to hand several times, and through more than one generation. On two of these tracts the plaintiff and those from whom he purchased, had valuable improvements, consisting of houses, barns, arable fields, orchards and meadows. Of the third tract he had no actual occupancy. But for nearly half a century he had paid the taxes on all of them, except when on two or three occasions there was an omission to assess him. He was resting securely on the title which he had bought and paid

1 There are many reasons for believing that dissenting opinions in Supreme Court cases should be excluded from a book of reports; yet, the editor, in giving the following celebrated opinion a place in the present volume, so as to preserve it from loss, is justified by the concurring wishes of many of his professional brethren about him. A syllabus is not furnished, because it is thought a dissenting opinion decides nothing.

for, and which nobody had ever disputed, when Barney Hole, the nominal defendant, a man totally irresponsible, and altogether worthless in every sense of the word, impudently thrust himself upon one of the tracts, and without pretending to claim it, began to make as free with it as if it had been his own. The counsel who appeared for him, confessed, at the argument, that he had no interest in the question, and that he had been put on the land to provoke an ejectment by others, who are to have the benefit of any success with which this trick may be attended. He left after this suit was brought, and then the plaintiff might have dropped it, but he did not. The title which Barney Hole, or his anonymous backers now set up, and on which they hope to take from the plaintiff a large portion of the earnings of his own and his father's life, is this: A survey in the name of John Graff, which is older than either of the plaintiffs, lies afoul of them, and it was on the interference that Barney Hole sat down. This naked and solitary fact, that the plaintiff's surveys were interfered with by another, which was older, is absolutely all that was shown on the last trial. That is the whole extent of the defence. John Graff never took possession of his tract, nor any part of it. He never paid a cent of taxes. He never claimed the land in dispute. He does not claim it now, nor has he authorized any body else to claim it for him. Barney Hole and his employers seem to know nothing of him except his name. On the other hand, the plaintiff's survey was made under a regular warrant, was legally returned and honestly paid for. He has been in possession under it, and paid taxes upon it so long that the memory of man scarcely runneth to the contrary. I devoutly believe that he cannot be despoiled of it now on any evidence which this record discloses, without doing him a gross wrong.

But though he has the manifest honesty of the case with him, the judgment could not be affirmed, unless the law also were with him. Let us see how that is:

In the first place, I think this defendant, being a mere intruder, had no right to set up a title of any kind in a third person. If he can do so, then every trespasser may demand of the injured party that he shall show a perfect title against all the world before he can recover for any wrong to his property. With profound

deference to the better judgment of the majority, I am clear that a man whose title to his land happens to be defective is not at the mercy of every dishonest stranger who may cast a covetous eye upon it. If I ascertain that my neighbor has lost a link in his chain of title so long ago that he cannot now supply it, and thereupon I get some venal tool to take possession and provoke an ejectment, so that I may show the defect, and keep land which is not mine, I do a thing as repugnant to the rule of law as it is inconsistent with common honesty. It would shock our sense of justice to allow a person who goes in, like this defendant, to set up an outstanding title, which the owner of it never asserted, nor intended to assert, and which he was probably paid long ago for not asserting. There is nothing in the books that gives the smallest countenance to such conduct. The direct contrary has always been held. In Hunter v. Cochran, 3 Barr 105, the broad doctrine is laid down, that no defendant in ejectment can set up an outstanding title, if it be derelict, abandoned, or barred by the statute: Foust v. Ross, 1 W. & S. 501, is full to the point. It decides, 1. That an intruder cannot set up an abandoned title. And 2. That the neglect of the owner to look after his title, and pay taxes for twenty-one years, is an abandonment. Here is a self-confessed intruder, who desires to set up a title which has been derelict and utterly abandoned for more than twice twentyone years. Should he be permitted to do so in the teeth of all the authorities and in the face of the plain reason and justice which forbid it? The judge of the Common Pleas thought not, and I thought he was right. It seems we were both mistaken.

But apart from all this, I would, if I could, protect the plaintiff from this wrong by the Statute of Limitations. I think John Graff himself, or his alienee, could not legally recover the land in dispute at least that part of it within the two tracts which are improved.

The plaintiff has not cultivated or enclosed the interference, nor any part of it, but he has an official survey which embraces it and his residence is on the survey. There it has been for a period much longer than twenty-one years. Why should he not hold it? The only answer is that though he lived for so long a time on his farm, yet he did not live on the very part of it with which

the other survey interfered. This would be a sound argument in England, but it is not the law of Pennsylvania, nor probably of any other American state. The statute would be useless here if it did not protect unenclosed woodland as well as cultivated grounds. Accordingly it has been universally held by this Court that one who goes into possession under color of title, with boundaries marked, is in, not the constructive, but the actual possession of the whole tract, and if he continues so to occupy it for twenty-one years he acquires a good title to all within the lines of his colorable claim, no matter how small a portion of it he may have had under his feet. This principle was fully discussed and settled in Heiser v. Riehle, 7 Watts 35; Criswell v. Altemus, 7 Id. 581; Bell v. Hartley, 4 W. & S. 32; Hoey v. Furman, 1 Barr 295; Porter v. McGinnis, 1 Id. 413; Fitch v. Mann, 8 Id. 503, not to speak of the many older cases in which it was affirmed. It was acknowledged by a majority of this Court to be the law so lately as the month of September, 1854, not more than fifteen months ago, in the case of Ament's Ex'rs. v. Wolf, 9 Casey 331.

These cases do assuredly decide, if anything ever was decided, that an office right is always good as color of title-that one who enters under such title is in possession of the unenclosed woodland within his lines as much as he is of the cultivated fieldsthat he has the whole tract by our law, just as he would have the enclosed part by the law of England—that if there were a better title to the woodland within the lines, the constructive possession of the true owner is ousted-that by such entry the occupant acquires title against all the world, but the bona fide owner of a better title that he may maintain ejectment or trespass against an intruder, and after twenty-one years will be protected against the owner himself.

These simple and long established rules should be decisive of the case. The plaintiff had an office right-a warrant regular on its face, and a survey legally executed and returned. This did not give him a perfect title to the interference. But it gave him color of title to all the land within his lines. On the day that he entered he had a right, good against men like Barney Hole, and after the expiration of twenty-one years, his right was good against John Graff also.

Under such circumstances the statute