THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
u
REPORTS
CASES
ADJUDGED IN
THE SUPREME COURT
PENNSYLVANIA.
BY
WILLIAM RAWLE, JUN.
WITH NOTES REFERRING TO CASES IN THE SUBSEQUENT REPORTS.
BY
WILLIAM WYNNE WISTER, JUN.,
CONTINUED BY
ELLIS AMES BALLARD.
VOL. IV.
PHILADELPHIA:
T. & J. W. JOHNSON & CO.,
LAW BOOKSELLEKS, PUBLISHEKS, AND IMPOKTEKS,
No. 535 CHESTNUT STREET.
1885.
45
Entered according to the Act of Congress, in the Tear 1885,
BY T. A J. W. JOHNSON & CO.,
In the Office of the Librarian of Congress, at Washington.
JUDGES
OF THE
SUPREME COURT OF PENNSYLVANIA.
JOHN B. GIBSON, Esq.,
MOLTON C. ROGERS, Esq.,
CHARLES HUSTON, Esq.,
JOHN Ross, Esq.,
JOHN KENNEDY, Esq.,
THOMAS SERGEANT, ESQ., (appointed
February 3d, 1834, in the place of
JOHN Ross, Esq., deceased,) . . _,
Chief Justice.
J ustices.
ATTORNEYS-GENERAL.
ELLIS LEWIS, Esq.
GEORGE M. DALLAS, Esq., (appointed October 14th, 1833,
in the place of ELLIS LEWIS, Esq., appointed President of the
Eighth Judicial District.)
778511
TABLE OF OASES.
[References are to the top paging.]
A.
PAGE
.346
Ankrim v Woodward, . .
\
B.
Baer v. Kistler, 364
Baker v. Lewis, 356
Bank of Pennsylvania v. M'Cal-
mont, 307
Bank of the United States, The
Merchants' Bank v 318
Bauer v. Roth, 83
Beaumont, The Commonwealth v. 366
Bennett v. Bittle, 339
Bertsch v. Lehigh Coal and Navi-
gation Company, 130
Bittle, Bennett v 339
Black v. Caldwell, 376
Bladen, Dundas v. 463
Bradford, Stiles v 394
Brentlinger v. Brentlinger, . . . 241
Brown v. The Commonwealth, . . 259
v. Johnson, 146
Buckecker, Smith v 295
C.
Caldwell, Hickman v 376
Black v 376
Case of Jacob Gerard Koch's Es-
tate, 268
Case of Jonas Hartman's Estate, . 39
Case of Siter et a/., Guardians of
Jordan, 468
Case of Spring Garden Street, . .192
Chew v. Keck, 163
Churchman, M'Crelish v 26
Coates v. Roberts, 100
Commonwealth v. Beaumont, . . 366
Brown v 269
M'Laughlin v. . 464
Craft v. Webster, 242
D.
Doyle, Hough v 291
Dundas v. Bladen, 463
E.
Earnest v. Parke, 452
Earp, The Mechanics' Bank u. , . 384
Ellmaker, Harrison v. 162
Evans v. Knorr, 66
F.
Fox v. Winters, 174
Fritz v. Hocker, 370
G.
Gaul, Rhoads v 404
Girard v. The City of Philadelphia, 323
Sylvester v 185
Gratz v. Gratz, ....... 411
H.
Harrison t. Ellmaker, 162
Hartman, Jonas, Case of .... 39
Harvey v. Turner, 223
Hellman v. Hellman, 440
Hickman v. Caldwell, 376
Hocker, Fritz v 370
Hopkins, M' Williams v 382
Hough v. Hough, 363
Hough v. Doyle, 291
Humphreys v. Kelly, 305
Hutchinson v. Sandt, 234
J.
Jennings, Logan v 355
Johnson, Brown v 146
Jones, Pritchett v 260
K.
Keck, Chew v 163
Kelly, Humphreys v 305
Kistler, Baer v 364
Knorr, Evans v 66
Koch's Estate, Case of 268
L.
Lehigh Bridge Company v. The
Lehigh Coal and Navigation
Company, 9
Lehigh Coal and Navigation Com-
pany, The Lehigh Bridge Com-
pany v 9
Lehigh Coal and Navigation Com-
pany, Bertsch v 130
V
vi
TABLE OF CASES.
Lesley v. Randolph, 123
Lewis, Baker v 356
Logan v. Jennings, ....... 355
M.
Magoffin v. Patton, 113
Marsh v. Pier, 273
M'Calmont v. The Bank of Penn-
sylvania, 307
M'Crelish v. Churchman, .... 26
M'Laughlin v. Commonwealth, . 464
M'Nair's Appeal, 148
M'Williams v. Hopkins, .... 382
Mechanics' Bank v. Earp, .... 384
Merchants' Bank v. Bank of United
States, ....*, 318
N.
Neide v. Neide, 75
Newbold v. Wright & Shelton, . . 195
Nisbet v. Patton, 120
O.
O'Brien, The Union Canal Com-
pany v 358
Oliver v. Oliver, 141
P.
Parke, Earnest v 452
Patton, Magoffin t>. 113
Patton, Nisbet v . . 120
Patton v. Eyan, 408
Philadelphia, The City of, Gi-
rard v 323
Philadelphia, The City of/Vidal v. 323
Pier, Marsh v 273
Poole v. Williamson, 317
Pritchett v. Jones, 260
Randolph, Lesley v 123
Rhoads v. Gaul, 404
Ristine v. Ristine, . 460
Roberts, Coates v 100
Roth, Bauer v 83
Ryan, Patton v 408
S.
Sandt, Hutchinson v 234
Shook, Young v 299
Siter et al., Guardians of Jordan,
Case of 468
Smith v. Buckecker, 295
Smith, Wintercast v 177
Spring Garden Street, Case of . .192
Stiles v. Bradford, 394
Sylvester v. Girard, 185
T.
Turner, Harvey v 223
U.
Union Canal Company v. O'Brien, 358
V.
Vidal v. The City of Philadelphia, 323
W.
Webster, Craft v 242
Williamson, Poole v 317
Wintercast v. Smith, 177
Winters, Fox v 174
Woodward, Ankrim v 345
Wright & Shelton, Newbold v. . 195
Y.
Yarnall, Priscilla E., Case of her
Will, 46
Young v. Shook, 299
CASES
OP
PENNSYLVANIA.
EASTERN DISTRICT DECEMBER TEEM, 1832.
[PHILADELPHIA, JANUARY 8, 1833.]
The President, Managers, and Company for Erecting a
Bridge over the River Lehigh, near the Town of
Northampton, against The Lehigh Coal and Naviga-
tion Company.
The act of assembly of the 20th March, 1818, "to improve the navigation
of the river Lehigh," and that of the 13th of February, 1 822, " to incorporate
the Lehigh Coal and Navigation Company," in whom the rights, &c., of the
grantees under the former act became vested, in providing a remedy for injuries
occasioned by the construction of the works, provide for nothing that was not
remediable at common law, and, on the other hand, the statutory remedy ex-
tends to every common law injury.
A corporation (such as a bridge company,) though not within the letter of
the acts, is within their equity, and may recover damages in the mode pre-
scribed by them, for injury sustained in its property.
If a corporation omit to continue the succession to certain offices which con-
stitute an integral part of its body, but jthese offices be supplied with officers
de fucto, it is sufficient to sustain its existence as to strangers, and to enable it
to maintain a suit.
The loss of an integral part of a corporation, works a dissolution to certain
purposes only ; the corporate franchise being suspended, but not extinguished.
An entire dissolution is the result of a permanent incapacity to restore the
deficient part, and never happens where the legitimate existence of the part is
not indispensable to a valid election, or other means of reproduction.
A forfeiture of the charter of a corporation for abuse or neglect of its fran-
7
9 SUPREME COURT [Philadelphia,
[Lehigh Bridge Company v. Lebigh Coal and Navigation Company.]
chise, must be declared by process and judgment of law, before the corporation
can be treated as defunct.
The existence of a corporation plaintiff, can be put in issue only by a plea
in abatement, or, at least, by such a plea as denies the whole declaration;
pleading over specially to the merits, admits the plaintiff's capacity to sue.
F*1 01 *The legislative grantees of a right to improve the navigation of a
L J river, by erecting dams, locks, &c., with the privilege of entering
upon the lands of others for those purposes, have the same right to erect a
darn at any place on the river, that a proprietor has to erect one on his own
lands ; and if chargeable with no want of attention to its probable effect, are
not answerable for consequences which it was impossible to foresee and prevent.
For an act of Providence, alone, therefore, they are not answerable. To
fix them with liability for mischief done by a flood or storm, there must be
a concurrence of negligence with the act of Providence ; and in a proceeding
against them to recover damages for such mischief, it is for the jury to in-
quire whether they have used all proper precautions to prevent consequential
injury.
In a proceeding to recover damages for an injury done to the pier of a bridge,
occasioned by the erection of a dam with a sluice or chasm left for rafts, which
in a flood directed the volume of water against the pier, the standard of dam-
ages is not the cost of a new pier, unless the old one should be found altogether
worthless.
THIS case, which came before the court on an appeal from the
judgment of the Circuit Court of Lehigh county, held by Hus-
ton, J., in April, 1832, originated in a petition presented by the
plaintiffs, to the Court of Common Pleas of Lehigh county, on
the llth of September, 1830, for a venire under the acts of as-
sembly of 20th of March, 1818, entitled "An act to improve
the navigation of the river Lehigh," (Pam. Laws, 197,) and of
13th February, 1822, entitled "An act to incorporate the Lehigh
Coal and Navigation Company/' (Pam. Laws, 21.)
The plaintiffs were incorporated by the act of 28th of March,
1797, entitled "An act to authorize the governer of the com-
monwealth to incorporate a company for erecting a bridge over
the river Lehigh, near the town of Northampton." (5 Laws of
Penn. 242, Carey and Bioreu's ed.)
By the first section of this act, commissioners are named for
receiving subscriptions : the form of subscription indicated, and
five dollars on each share directed to be paid on subscribing.
The second section declares, that when fifteen or more persons
shall have subscribed one hundred shares, the governor shall in-
corporate the company ; directs what the style of the corpora-
tion shall be ; authorizes an enlargement of the capital stock,
&c. By the third section, the six persons first named in the
letters patent, are directed to give notice in two or more Phila-
delphia newspapers, one of which shall be in the German lan-
guage, and also in the public newspapers at Easton, of a time
and place by them to be appointed, not less than thirty days from
the time of issuing the first notice, when and where the sub-
scribers shall proceed to organize the corporation, by choosing
Jan. 8, 1833.] OF ' PENNSYLVANIA. 10
[Lehigh Bridge Company v. Lehigh Coal and Navigation Company.]
" one president, four managers, one treasurer, and such other
officers as they shall think necessary to conduct the business of
the corporation for one year, and until other officers shall he
chosen, and are authorized to make such by-laws, rules, &c., as
may be necessary for the well-ordering the affairs of the com-
pany/' &c. By the fourth section it is provided, that the stock-
holders shall meet on the first Monday in August in every suc-
ceeding year, for the purpose of choosing such officers as afore-
said for the ensuing year. The fifth, sixth, and seventh sections
are not material. The eighth directs the mode of keeping the
accounts *of the company, which are to be submitted once r*i i -i
a year to the stockholders until the bridge shall be com- '
pleted, and until all the costs, charges, and expenses shall be
fully paid and discharged ; it directs that the aggregate amount
of all such expenses shall be liquidated and ascertained, and if
upon such liquidation, or whenever the whole capital stock shall
be nearly expended, it shall be found that the capital stock is not
sufficient to complete the bridge, the president, managers, and
company are authorized to increase the number of shares to such
extent as shall be deemed sufficient to accomplish the work. The
ninth section vests the property of the bridge, when completed,
in the company ; establishes the rate of tolls, and contains a
proviso that the bridge shall not be erected in such a manner as
to injure, stop, or interrupt the navigation of the river or the
passage over the ford near to the place where the ferry was then
kept. The tenth and eleventh sections are immaterial. The
twelfth directs, that accounts shall be kept of the tolls received,
and that dividends shall be declared, deducting first, expenses,
and such a sum as may be deemed necessary for a growing fund
to provide against the decay of the bridge, and for rebuilding and
repairing it. The thirteenth section provides that at the end of
every third year from the date of the incorporation, until two
years next after the bridge shall be completed, an abstract of the
accounts, showing the whole of the capital expended in the pros-
ecution of the work, and the income and profit arising from the
bridge, during those periods, shall be laid before the legislature,
with an exact account of the cost and charges of keeping the
bridge in repair, to the end that the clear income may be ascer-
tained, and if it shall appear that the clear income and profits
will not bear a dividend of six per cent., the tolls shall be in-
creased so as to raise it to that amount, and at the end of every
ten years after the completion of the bridge, a like abstract shall
be laid before the legislature, and if the clear income and profits
will bear a dividend of more than fifteen per cent., the tolls shall
be reduced so as to reduce the dividend to fifteen percent. The
fourteenth section provides, that if the company shall not pro-
9
11 SUPEEME COURT {Philadelphia,
[Lehigh Bridge Company v. Lehigh Coal and Navigation Company.]
ceed to carry on the work within three years after their incor-
poration, and shall not complete it within seven years from the
passage of the act, the legislature may resume the grant. And
the fifteenth section authorizes the legislature, after the year 1820,
to take the bridge at a valuation.
This act was revived and amended by an act passed 28th of
March, 1806, (4 Sm. L. 341.)
On the 20th of March, 1818, an act of assembly was passed,
entitled "An act to improve the navigation of the river Le-
high," (7 Laws of Penn., Read's ed. 86,) by which Josiah White,
George F. A. Hauto, and Erskine Hazard, their heirs and as-
signs, were authorized to enter upon the said river, to open, en-
large, and change its channel, &c., to make dams, locks, or any
other device which they should think fit and convenient to make
r*i 91 a good navigation downward, *&c. The second section
' of this act provides, " that if any person or persons shall
be injured by means of any dam or dams being erected, or the
laud of any person inundated by swelling the water by means
of any dam or dams, or any mill or other water works injured
by swelling the water into the tail race of any mill, or other
water works, which may have been erected in the said river,
and if the said Josiah White, George F. A. Hauto, and Erskine
Hazard, their heirs and assigns, cannot agree with the owner or
owners thereof, on the compensation to be paid for such injury,
the same proceedings shall be had as are provided in the third
section of this act ; the persons valuing the damages, being first
sworn or affirmed, or the jury, as the case may be, shall take
into consideration the advantages which may be derived by
such owner or owners by the navigation aforesaid."
The third section declares, "That the said Josiah Whitt,
George F. A. Hauto, and Erskine Hazard, their heirs and as-
signs, shall have authority and power by themselves or theii
superintendents, engineers, artists, and workmen, to enter in and
upon, and occupy, for the purpose, all land which shall be neces-
sary and suitable for erecting a lock, sluice, canal, tow-path, or
other device, doing as little damage as possible, and there to dig,
construct, make, and erect, such lock, sluice, canal, tow-path, or
other device, satisfying the owner or owners thereof, but if the
parties cannot agree upon the compensation to be made to such
owner or owners, it shall and may be lawful for the parties to
appoint six suitable and judicious persons, who shall be under
oath or affirmation, and who shall reside within the proper county
where the land lies ; or if they cannot agree on such persons,
then either of the parties may apply to the Court of Common
Pleas of the proper county where the land lies, and the said
court shall award a venire- directed to the sheriff, to summon a
10
Jan. 8, 1833.] OF PENNSYLVANIA. 12
[Lehigh Bridge Company v. Lehigh Coal and Navigation Company.]
jury of disinterested men, in order to ascertain and report to the
court what damages, if any, have been sustained by the owner
or owners of the ground by reason of such lock, canal, sluice,
tow-path, or other device, passing through his, her, or their land,
which report being confirmed by the court, judgment shall be
entered, and execution shall issue, in case of non-payment,
for the sum awarded, with reasonable cost to be assessed by the
court. And it shall be the duty of the jury, or the six ap-
praisers, as the case may be, in valuing any land, to take into
consideration the advantage derived to the owner or owners of
the premises from the said navigation : Provided, that either
party may appeal to the court within thirty days after such re-
port may have been filed in the prothouotary's office of the
proper county, in the same manner as appeals allowed in other
cases." This section also contains a provision in relation to
femmes covertes, persons under age, non compotes mentis, or out
of the state.
On the 13th of February, 1822, an act of assembly was passed,
(Pam. Laws. 21,) to incorporate " The Lehigh Coal and Naviga-
tion *Company," the preamble of which recited the act r^.-, <.-.
of 20th March, 1818, to " improve the Navigation of the '
river Lehigh," by which certain rights were granted to Messrs.
White, Hauto, and Hazard : That they had conveyed to the
Lehigh Navigation Company, all the rights vested in them by
that act, reserving certain residuary profits : That Messrs.
White, Hauto, and Hazard, had purchased certain estate in
sundry tracts of coal land, which for the purpose of raising
funds, they had conveyed to trustees for the use of certain per-
sons furnishing the funds, and associated under the name of
" The Lehigh Coal Company," reserving certain residuary pro-
fits and exclusive rights in the management of the company :
That these companies had united and amalgamated themselves
into one company, under the name of The Lehigh Navigation
and Coal Company, confirming to Messrs. White, Hauto, and
Hazard, the residuary profits, and exclusive rights before re-
served by them : That Hauto had agreed to convey all his rights
to White and Hazard, which agreement had been carried into
effect, and the funds of the company being still insufficient
for the objects of the association, it was agreed between the
stockholders in the said company, and the said White and Haz-
ard, that the name of the company should be changed to that
of " The Lehigh Coal and Navigation Company :" That the
capital stock should be increased by the admission of new sub-
scribers, and that in consideration thereof, and certain shares of
the stock of the new company to be given to them, White and
Hazard should release to the comnam r their reserved rights,
11
13 SUPREME COURT [Philadelphia,
[Lehigh Bridge Company v. Lehigh Coal and Navigation Company.]
and convey to trustees, in the new company, all their rights to
the water power, and come in as simple stockholders under the
new association, &c. The act, therefore, in the first section, in-
corporates the new company, by the name of " The Lehigh
Coal and Navigation Company/' with the usual corporate
powers, &c. The second section vests the property of the for-
mer association in the new corporation, and provides that its
contracts shall continue in force. The third section confirms to
the corporation the rights and privileges granted to Messrs.
White, Hauto, and Hazard, by the act of 20th of March, 1818.
The seventh section, declares, that in the appraisement of dam-
ages, and valuation of materials provided for by the second,
third, fourth, fifth, or any other sections of the above mentioned
act, if either party shall require it, the referees, or persons com-
posing the jury of valuation, shall not be taken from within
seven miles of the river Lehigh.
The petition presented by the plaintiffs to the Court of Com-
mon Pleas, in pursuance of the provisions of these acts of as-
sembly, alleged damage and injury to their property, in the fol-
lowing particulars, viz. :
First. By the erection and construction of the defendant's
dam, it was alleged that the middle pier of the bridge was un-
dermined, and the foundation of it cracked and split, and totally
ruined, and the value of the bridge impaired to the amount of
ten thousand dollars.
f*i 41 * Second. That by reason of the blasting of rocks, earth,
' and stone, in the construction of the canal, &c., above
and below the bridge, a house erected on the bridge, of the value
of five hundred dollars, was shattered, torn in pieces, prostrated,
and totally destroyed.
Third. That by reason of the blasting of rocks, stones, and
earth, as aforesaid, a large and substantial iron chain was se-
vered and broken, and the frame and wood work of the bridge
seriously injured, thereby further impairing the property of the
plaintiffs to the value of five hundred dollars.
Fourth. That certain scaffolding made use of in repairing the
bridge, was prostrated, swept away, and totally destroyed,
thereby further impairing the value of the plaintiffs' property to
the amount of two hundred dollars.
Fifth. That by reason of the construction of the dam across
the river, &c., a large quantity of stone and gravel was forced
down the river which has seriously injured the property of the
plaintiffs.
Sixth. That the plaintiffs being seized in their demesne as of
fee of a certain tract of land, <fcc., in Hanover township, &c.,
containing fifty feet square, the defendants had, in constructing
12
Jan. 8,1 833.]' OF PENNSYLVANIA. 14
[Lehigh Bridge Company v. Lehigh Coal and Navigation Company.]
their lock and tow-path, fifty feet in length, and thirty-seven
feet in width, upon and through this land, deprived the plaintiffs
of the use and occupation of the land, and impaired the value of
their property to the further amount of one hundred dollars.
And other wrongs and injuries, &c. That the defendants had
made no compensation, &c.
By virtue of this venire the sheriff summoned an inquest, who
on the 18th of October, 1830, returned an inquisition finding
that damages to the amount of six thousand three hundred and
seventy -one dollars, had been sustained by the plaintiffs, " ex-
clusive of any advantages which may be derived to the said,
' The President, Managers, and Company, for erecting a bridge/
&c., from the navigation of the said river Lehigh, improved by
the said, ' The Lehigh Coal and Navigation Company/ " and
accordingly assessed the damages at that sum.
From this finding the defendants appealed to the Court of
Common Pleas of Lehigh county, and afterwards removed the
cause into the Circuit Court.
The plaint filed by the plaintiffs, set forth, in substance, that
by virtue of the act of 28th of March, 1797, and that of 28th of
March, 1806, the plaintiffs were incorporated by the corporate
style aforesaid, and in and during the years 1813, 1814, and
1815, erected and constructed a good and substantial bridge
composed partly of stone, partly of wood, and partly of iron,
called a chain bridge : That the right, title, property, and inter-
est in the bridge, with the right of taking toll, were, and ever
since have been, and are now, absolutely vested by the provis-
ions of those acts of assembly, in the plaintiffs, their successors,
and assigns forever: That between the 1st of January, and 20th
of June, 1829, the defendants constructed a dam across the
river, leaving a sluice, or passage, in the dam, which threw
*the water along the east side of the middle pier of the r.,,-. p.-i
bridge, by which the pier was undermined, the founda- L
tion of it sunk, and the pier itself cracked and split and totally
ruined, by reason whereof the value of the bridge was impaired
to the amount of ten thousand dollars : That the defendants, by
blasting, and blowing rocks, earth, and stone, in the construction
of a certain canal, lock, tow-path, and other devices at, above,
and below, the east end of the bridge, on the 21st of October,
1828, severed and broke down a large and substantial iron chain,
in consequence of which the floor of the bridge was thrown down,
and the frame and wood work, greatly injured, by which the
plaintiffs sustained damage to the amount of five hundred dol-
lars : That by reason of the same causes, a frame house on the
eastern pier of the bridge was torn in pieces, prostrated and
totally destroyed, to the further damage of the plaintiffs five
13
15 SUPREME COURT [Philadelphia,
[Lehigh Bridge Company v. Lehigh Coal and Navigation Company.]
hundred dollars; and that by the occupation by the defendants
of the plaintiffs' laud for a lock and tow-path, they had sustained