ought to protect him, and if it does not protect him it ought to be repealed. If it does not give repose to him, there is no reason why other men should have the advantage of it.

But even if there were no statute of limitations, the lapse of time, accompanied by the facts of this case, would raise a conclusive presumption in favor of the plaintiff. It often happens that surveys interfere with each other, sometimes by mistake of the officer, and sometimes with the consent of the elder warrantee. It is not at all uncommon for the junior survey to be the better title, in consequence of some contract or other act of the adverse party, which estops him from claiming the interference. Now take this as a part of our daily experience, and apply it to a case where the elder warrantee has not shown himself for sixty years. He takes no possession, pays no taxes, asserts no right, and performs no duty of an owner. On the other hand, the junior warrantee, and those claiming under him, enter immediately upon their tract, to build, and plant, and sow, and pay the taxes. Successive generations live and die upon it. The whole of it is repeatedly bought and sold and paid for in good faith. The extent of the claim embracing the interference, is not only seen from the marks on the ground, which any one can trace, but from the records of the land office, the recorder of deeds, the register's office, the Orphans' Court, the county commissioners, and on every assessment of taxes, or at least most of them, for half a century. After all this, would not any court presume a conveyance of the interest which the elder warrantee had in the interference? Such presumption is required by all analogy, and in ninety-nine cases out of a hundred, it would accord with the truth. It would be quite as just, and more natural than the similar presumption made in Strimpfler v. Roberts, 6 Harris 283. But here the elder warrantee makes no claim. John Graff is willing to abide by the contract which the law presumes him to have made. Barney Hole, an intruder and a stranger, is to have the benefit of a title, which Graff, while he was living, and his descendants since his death, have always been too honest to assert.

But there is no need of resorting to fundamental principles analogies and presumptions. The very question now before us has been repeatedly and solemnly ruled. In Kite v. Brown, 5

Barr 291; Waggoner v. Hastings, 5 Id. 300; Lauderbaugh v. Seigle, 5 Id. 490; Mann v. Fitch, 8 Id. 503; Billhemier v. Steele; in each of these cases, this precise point came directly up, was argued by able counsel, was carefully considered and decided. The reasons of the judgment were given at length, and on every occasion were unanimously agreed to by the judges. The plaintiff's land cannot be taken from him without overturning the rule established and defined in these cases. It is this: that where two surveys interfere, and the owner of the junior survey enters upon any part of his tract, he is in the actual possession of all the land within his lines, and such actual possession ousts the other party from his constructive possession of the interference unless he too enters upon his tract and thus restores the equilibrium of possession. Every one of the cases was a claim of the junior warrantee to be protected by the statute under an occupancy of twenty-one years, without showing any enclosure of the interference, and in every one of them it was held that he was protected. This doctrine was universally acquiesced in. It had long before been declared by Judge Huston, in Hockenbury v. Snyder, 2 W. & S. 240, to have been uniformly held as the law of Pennsylvania. It commended itself by its simplicity, its justice, and its consistency with all the principles previously determined. In our whole system of land law, there was no rule of property that seemed more firmly settled. No doubt thousands have invested their money and their labor on the faith of it. To overthrow it now is to prove that nothing is safe.

How it was regarded by the profession is shown in the way in which this case has been conducted. When it was first tried the Court below gave the plaintiff all of the John Graff tract which was interfered with by the whole three of the plaintiff's surveys. A writ of error was taken for the sole purpose of getting a decision here, that the plaintiff could not have that one on which he had no improvements. That he was entitled to the part interfered with by the other two on which he lived was not denied. Not a word was uttered in argument either for or against the rule settled in Kite v. Brown, and the other cases. The counsel of the plaintiff in error knew the whole ground very well, for he was one of the foremost men in the state; but he could not then be VOL. I.-19

tempted to make the point which has since been so successful. Even on the last argument he barely raised it, and did not press it. I am thoroughly satisfied that no judicial legislation on this subject can have the approbation of his judgment, and his opinions are a fair sample of what is thought by the best men in the profession everywhere.

If the rule in Kite v. Brown had been opposed by other decisions of this Court, there might be reasons for declaring it abolished. But there is not a solitary case, old or recent, that impugns it in the least. It is true, and it has been uniformly so held, that a person who occupies land adjoining to a survey, and who without authority and of his own head, marks his lines over on his neighbor's tract, acquires thereby no possession and no rights. Such were the cases of Cluggage v. Duncan, 1 S. & R. 111; Burns v. Swift, 2 Id. 436; Altemus v. Trimble, 9 Barr 232; Wright v. Guiger, 9 Watts 172, and some others. No one has ever been so extravagant as to suppose that the making of lines upon another's land without any pretence of authority from the Commonwealth was more or less than a trespass. A person who acts thus is a naked wrongdoer in no respect better than Barney Hole himself. But how any human ingenuity can confound such a case in principle with the case of one official survey interfering with another, passes my comprehension. An official survey is always color of title at least. Lines made by a trespasser are not color of title, and that makes all the difference in the world. But, even if the distinction were not as broad and palpable as it is, is it not enough that the law has made a distinction which all authority recognises and everybody acts upon? I think so.

I could say much by way of proving that the rule I contend for is wholesome in its operation, and that no other rule equally just and simple can be substituted in its place. But that is surely not necessary. When a principle of law is established by a long series of decisions without a single case on the other side, to carry it out in plain good faith is as sacred a duty as any judge has to perform. His own notion that it ought to be otherwise is not entitled to a moment's consideration. It is no part of our office to tinker at the law, and patch it up with new materials of our

and no people

own making. Suitors are entitled to it just as it is. Bad laws can be borne, but the jus vagum aut incertum-the law that shifts and changes every time it passes through the courts, is as sore an evil and as heavy a curse as any people can suffer; who are fit for self-government will suffer it long. Even a legislator, if he is wise and thoughtful, will make no change which is not absolutely necessary. Legislative changes, however, are prospective and disturb nothing that is past. But judge-made laws sweep away all the rights which may have been acquired on the faith of previous rules. For such wrongs even the legislature can furnish no redress. When the scales of justice are shaken by the hands that hold them here, there is no power elsewhere to adjust them. A simple man, who has invested his money in the purchase of a title solemnly pronounced indefeasible in half a dozen cases decided by the highest tribunal of the state, may wake up from his dream of security to find himself ruined by a contrary ruling of the very same question.

The judgment now about to be given is one of "death's doings." No one can doubt that if Judge Gibson and Judge Coulter had lived, the plaintiff could not have been thus deprived of his property; and thousands of other men would have been saved from the imminent danger to which they are now exposed of losing the homes they have labored and paid for. But they are dead, and the law which should have protected those sacred rights has died with them. It is a melancholy reflection that the property of a citizen should be held by a tenure so frail. But "new lords, new laws," is the order of the day. Hereafter, if any man be offered a title which a Supreme Court has decided to be good, let him not buy if the judges who made the decision are dead; if they are living let him get an insurance on their lives, for ye know not what a day or an hour may bring forth.

The majority of this Court changes on the average once every nine years, without counting the chances of death and resignation. If each new set of judges shall consider themselves at liberty to overthrow the doctrines of their predecessors, our system of jurisprudence (if system it can be called) would be the most fickle, uncertain and vicious that the civilized world ever saw. A French constitution, or a South American republic, or a Mexican admin

istration would be an immortal thing in comparison to the short lived principles of Pennsylvania law. The rules of property which ought to be as steadfast as the hills, will become as unstable as the waves. To avoid this great calamity I know of no resource but that of stare decisis. I claim nothing for the great men who have gone before us on the score of their marked and manifest superiority. But I would stand by their decisions, because they have passed into the law and become a part of it—have been relied and acted on-and rights have grown up under them which it is unjust and cruel to take.

s. c. 7 Harris 305; 1 Casey 491; 1 Wright 116.

In the Court of Oyer and Terminer of Westmoreland County. COMMONWEALTH v. CORRIGAN.

(Vol. III., p. 357, 1856.)

1. Circumstantial evidence of guilt.-Motive.-Declarations indicative of intention. Preparation.-Unexplained appearances of suspicion, and efforts to account for them by false representations. 2. Murder.-Definition and degrees of.

BUFFINGTON, P. J.-I need not tell you, gentlemen, that this is a case of the first importance; a case involving the issues of life and death. It behooves us all, therefore, to feel the responsibility of our position, and to act with patience and diligence and care, in order that we may feel a consciousness that we have discharged our duty, be the result what it may.

The case presented by the evidence is one mainly of fact, and as such to be considered of and decided by the jury. Our constitution and laws have wisely determined that the administration of justice shall not be cast entirely upon a fixed tribunal, but that matters of fact, which can be better determined by those conversant with the practical affairs of mankind shall be determined by a jury indifferently selected from the various pursuits of business life, whilst the laws, which are the wise conclusions of eminent lawyers and judges, and the positive enactment of the