defendant in error, dated 1st of February, 1830, in the penalty
of four hundred and ten dollars and thirty cents, conditioned
for the payment of two hundred and five dollars and fifteen
cents, on the 2d of March, 1830. The judgment was entered of
February Term, 1830, by virtue of a warrant of attorney accom-
panying the bond, under the provisions of the act of the 24th of
February, 1806. On the day on which the judgment was en-
tered, Hutton gave to the plaintiff below a receipt for the bond,
which was left in the office of the prothonotary. On the 26th of
March, 1830, the defendant below paid to the prothonotary or
to his clerk, two hundred and two dollars, the balance due on the
judgment, and also sixty-two cents, the fees for entering it, took
the receipt of the prothonotary's clerk for the amount paid, re-
ceived the bond, and cancelled it. In February, 1831, the
obligee went to the prothonotary's office to receive his
r*'}P"1 * mone y> but Hutton had been previously removed from
-* office, and had died insolvent. The plaintiff below is-
sued a fieri facias on his judgment on the 10th of May, 1832,
and on the return day of the writ an application was made to
set it aside, on the ground that, by the payment, delivering up,
and cancelling of the bond, in the manner above stated, the de-
fendant below was discharged. The court, on this application,
ordered an issue to try the question of payment and discharge,
and a case was stated, in the nature of a special verdict, em-
bodying the facts above stated.
410
i 7, 1834.] OF PENNSYLVANIA. 365
[Baer v. Kistler.j
In pronouncing the judgment of the Court of Common Pleas,
the President Judge stated the question submitted to him to be,
whether the prothonotary had a right to receive the money upon
the judgment which he had entered, and whether the payment
made by the defendant was legally made, so as to protect him
from all claims on the part of the plaintiff for the amount of the
judgment.
His opinion was, that it was not the duty of the prothonotary
to receive the money : That the condition of his official bond
did not embrace the transaction : That he had no legal right
uor any authority from the plaintiff to receive the money : That
if the prothonotary was the agent of any one, he was the agent
of the defendant, and for his default the defendant must suffer :
That the defendant was not protected by the payment of the
money to the prothonotary, as it was never paid to the plain-
tiff, and that judgment must be entered in his favour, for the
amount of the judgment and interest.
Judgment having been entered in conformity with the opinion
of the court below, the defendant removed the record by writ of
error to this court, where the cause was argued by Brooke for
the plaintiff in error, who cited Commonwealth v. Clarkson, 1
Kawle, 291 ; Carmack v. Commonwealth, 5 Binu. 184.
Gibbon and J. Sergeant were stopped by the court.
PER CURIAM. This is one of those cases about which
nothing is to be said, but to pronounce the law. Without then
determining what may be the liability of the prothonotary's
sureties a point not before us it is sufficient for the occasion
to say, that the officer was not the agent either of the party or
the law, and that the receipt by him involved the debtor in a
mispayment, which consequently cannot be set up as a discharge
of the debt.
Judgment affirmed.
Cited by Counsel, 3 Barr, 352; 3 C. 397 ; 1 Wr. 75.
^PHILADELPHIA, FEBRUARY 17, 1834.] [*366]
The Commonwealth against Beaumont.
IN ERROR.
The judgment of the Court of Common Pleas in quashing an inquisition in
a case of lunacy, is revisable by this court. But in such a case a writ of error
411
366 SUPREME COURT [Philadelphia,
[Commonwealth v. Beaumont.]
does not lie. The process by which the proceedings are to be removed is a
certiorari.
It seems, however, that the judgment of the Court of Common Pleas, after
pleading to i ssue on a traverse of the inquisition, is revisable on a writ of
error.
WRIT of error to the Court of Common Pleas of Sucks
county.
In this case, a commission in the nature of a writ de lunatico
inquirendo having issued against John Beaumont, an inquisition
was returned on the twenty-second of May, 1833, finding that
the defendant, "John Beaumont, aged seventy-five years, by
reason of old age and long-continued sickness has become so far
deprived of reason and understanding as to be wholly unfit to
manage his estate, and hath been so for the last eighteen mouths
and upwards."
Exceptions were filed on behalf of the defendant to the pro-
ceedings of the inquisition, both in point of law and fact, and
the court, after hearing, quashed the inquisition; upon which
the present writ of error was sued out.
Randall moved to quash the writ of error.
1. Because this court had no jurisdiction of the case, for
which he cited Gest's Case, 9 Serg. & Rawle, 3.17; Righter v.
Rittenhouse, 3 Rawle, 281.
2. Because the exceptions filed in the court below depended
upon facts which this court is not competent to decide.
Ross and Kittera, coiitra, cited 1 Sm. Laws, 139; 3 Bl. Com.
427 ; 2 Madd. Ch. 732 ; Moore v. Cooke, 4 Serg. & Rawle, 231 ;
Cooke v. Reiuhart, 1 Rawle, 317.
The opinion of the court was delivered by
GIBSOX, C. J. By the eleventh section of the act of 1 722,
the judges of the Supreme Court are empowered to issue writs
of habeas corpus, certiorari, and of error. By the thirteenth,
they are u to examine and correct all, and all manner of errors
of the justices and magistrates of this province, in their judg-
ments, process, and proceedings in the said courts, as well as in
all pleas of the crown, as in all pleas, real, personal, and mixed;
and thereupon to reverse or affirm the said judgments, as the
law doth or shall direct." Finally, it is declared generally,
that "they shall minister justice to all persons, and exrcise the
jurisdiction and powers hereby granted, concerning all, and all
and singular, the premises according to law, as fully and amply
to all intents and purposes whatsoever, as the King's Bench,
*Common Pleas, and Exchequer at Westminster, or
any of them can do." The grant of these powers is
412
Feb. 17, 1834.] OF PENNSYLVANIA. 367
[Commonwealth v. Beaumont.]
confirmed by the sixth section of the fifth article of the Consti-
tution, which provides that the Supreme Court and the several
Courts of Common Pleas, shall have certain specified powers
" besides the powers heretofore usually exercised by them."
What then are the powers of the King's Bench, to say nothing
of the other courts at Westminster, so broadly granted to the
Supreme Court? "The jurisdiction of this court," says Sir
William Blackstone, "is very high and transcendent. It keeps
all inferior jurisdictions within the bounds of their authority,
and may either remove their proceedings to be determined here,
or prohibit their progress below. It superintends all civil cor-
porations in the kingdom. It commands magistrates and others
to do what their duty requires in every case where there is no
other specific remedy. It protects the liberty of the subject by
speedy and summary interposition." 3 Com. 42. As then the
Supreme Court has a general jurisdiction of the proceedings of
all inferior tribunals, as regards their regularity and legality,
what argument is there to make this particular one an excep-
tion to it? It is said, the very section of the Constitution which
confirms the previous grant of general powers to the Supreme
Court, disposes specially of the subject of power over the per-
sons and estates of those that are no r a compotes mentis, by com-
mitting it concurrently to the Supreme Court and the Common
Pleas: whence an inference, quoad hoc, of an equality of juris-
diction in all respects. If this equality were conceded, the
decisions of the several Courts of Common Pleas would be
precedents for the Supreme Court and for each other ; or the
decisions of each would furnish precedents but for itself a
consequence productive, in either aspect, of the wildest uncer-
tainty. It is plain, however, that the clause in question has re-
gard to orignal, and not appellate, jurisdiction; for it is incred-
ible, that the framers of the instrument should have intended to
deprive the citizen, in a matter which peculiarly involves his
liberty, of the high judicial protection which is so amply secured
to him in the most trifling matter of property. Were the mere
concurrence of jurisdiction to determine the question of parity,
this court would be incompetent to revise the decisions of the
District Court of the city and county of Philadelphia. Next, it
has been said, that as the jurisdiction was originally a chancery
one, and as a writ of error does not seem to lie to the law side
of that court at this day, there is consequently neither writ of
error nor appeal here; and this much is supposed to have been
decided in Gest's Case. The inference from that case holds only
as regards the instrument of removal; for it may well be that a
writ of error is not the proper process, and yet the judgment of
the court below not be irreversible. The superintending power
413
367 SUPREME COURT [Philadelphia,
[Commonwealth v. BeaumoHt.]
given by the statute and the Constitution, hag respect to the
court, and not to the nature of the proceeding, further than
concerns the form of the appellate process ; and even that is to
be determined by the form it has received from the structure of
our judiciary, an( ^ n t * ne form it had originally. *Thus,
principles of equity infused into what are elsewhere
common law actions, become the subjects of exception and error,
for the plainest of all reasons, that equity is a part of our law ;
and even the remedy to recover a legacy which was originally a
subject of chancery jurisdiction, having taken the shape of an
action at law here, is attended with all the incidents of one.
The same thing may be affirmed of many other substitutes for a
bill in equity. As I am unable to recall the precise ground of
the decision in Gest's Case, I the more regret that the Chief
Justice happened to depart from his usual practice in plain
cases, of embodying the substance of the opinion in a per curiam
note of it ; but I venture to assert, that neither he, nor Mr.
Justice Duncan, was so unmindful of what was due to the forum,
as to surrender one of its undoubted prerogatives. The report
contains no evidence of such a surrender. The motion to quash
was indeed advocated on the ground of the English practice,
according to which, the writ of error, being the only process of
removal from the law side of the Chancery into the King's
Bench, and having been superseded in that particular by an
appeal to the king in counsel, ought, it was said, to be considered
as exploded here ; and as no appeal is expressly given to the
Supreme Court, it was contended that nothing can be substituted
for it by implication. But can it; be collected from the report,
that the writ was quashed because the judgment was not the
subject of revision ? Were an appeal given to the Supreme
Court as a substitute for the appeal from the chancellor to the
king, it might have been supposed that recourse to it alone could
be had, as in the case of a libel for divorce ; but no such substi-
tute being provided, it was natural to refer the subject to the
general corrective powers of the court in the last resort, the
form of the process being determinable, as in other cases, by the
nature of the proceeding. A writ of error is the proper process
of removal, where the primary tribunal is a court of record, and
the proceedings to be removed either were according to the
course of the common law in the first instance, or have assumed
a common law shape subsequently ; but where they are sum-
mary, or the magistrate is not the judge of a court of record, it
is a certiorari. Thus the latter is a proper process to remove
the proceedings of justices of peace, and even the judgment of
the Quarter Sessions where it has been rendered in a summary
way pointed out by statute, as in the case of an appeal from a
414
Feb. 17, 1834.] OF PENNSYLVANIA. 368
[Commonwealth v. Beaumont.]
conviction by justices of the peace for refusing to assume the
office of supervisor of the highways. Ruhlman v. The Com-
monwealth, 5 Biun. 24. Where, however, the proceedings have
taken a common law form in a court of record, whether they
originated there or not, the judgment can be removed but by
writ of error: as where an action brought before a justice of the
peace has been determined on an appeal to the Common Pleas ;
or even where the regularity of his proceedings has been de-
termined on a certiorari, which is not a prosecution of the pro-
ceedings before the justice, but an original and independent
process of review according to the course of the common
*law. Clark v. Yeat, 4 Binu. 185; Cook v. Reinhart, r#ooqi
1 Rawle, 317. On the same principle was adjudicated "
The ship Portland v. Lewis, 2 Serg. & Rawle, 197, which was
the case of an issue to try a fact controverted in a libel, for
work and materials furnished to a vessel, under the act of 1784;
and The Schuylkill Navigation Company v. Thoburn, 7 Serg. &
Rawle, 411, which was an appeal from the decision of an inquest
awarded by the same court on a petition for the assessment of
damage-;, and which had taken the form of an action. The diffi-
culty in respect to the judgment in Gest's Case, however, is in
the fact that the proceedings in lunacy were originally on the
law side of the Court of Chancery, and therefore, it might be
supposed, according to the course of the common law, which
would interpose no obstacle to a writ of error here. But it does
not follow that all the proceedings of a court of record are ac-
cording to the course of the common law, as is instanced in the
appeal from the conviction of the supervisor of the highways,
which was summarily determinate in the Quarter Sessions.
Instances of the same sort may be found in statutory grants of
original jurisdiction ; as in Lewis v. Wallick, 3 Serg. & Rawle,
410, which was the case of proceedings in a domestic attach-
ment ; and Miller v. Miller, 3 Binn. 30, which was a libel tor
divorce ; in both of which it was determined that a writ of error
does not lie. It may be said, the jurisdiction in those cases was
conferred by statute, and that it does not appear that the chan-
cellor acquired his jurisdiction of lunacy otherwise than as the
common law jurisdiction of the courts at Westminster was ac-
quired at the dissolution of the Aulu regis. But the jurisdiction,
however acquired, is an extraordinary one; and it is not won-
derful that the appellate jurisdiction of the King's Bench should
have been contested, and eventually relinquished. The proceed-
ings are certainly not in accordance with the ordinary forms of
the common law known here; and having been conferred on the
Common Pleas by the positive enactment of the Constitution,
are revisable only bv writ of certiorari. According to the prin-
415
369 SUPREME COURT [Philadelphia,
[Commonwealth v. Beaumont.]
ciple indicated, they would seem to be revisable by writ of error,
after pleading to issue on a traverse of the inquisition ; but
having been quashed before they assumed an ordinary common
law form, and not because they are exempt from examination
here, we are of opinion that the motion be sustained.
Writ of error quashed.
Cited by Counsel, 5 E. 122 ; 3 Wh. 557 ; 4 Barr, 302 ; 1 H. 74 ; 2 H. 487 ;
7 C. 468; 7 Wr. 113; 24 S. 247.
Approved in 4 W. 306, and 3 Wr. 412.
Cited by the Court, 2 Barr, 119 ; 12 Wr. 336 ; 7 S. 445, 454 ; 26 S. 468.
[*370] * [PHILADELPHIA, FEBRUARY 17, 1834.]
Fritz against Hocker.
The mediation and concealment by a grantee, at the time of the execution
of the deed, of an impracticable plan of acquiring the property which is the
subject of the grant, and afterwards refusing to perform the agreement which
was the consideration of it, and subsequently acting in pursuance of such plan,
are not such a fraud as will produce a recision of the contract, and prevent the
grantee from recovering in ejectment against the grantor.
THIS was an ejectment originally brought in the Court of
Common Pleas of Montgomery county, by Peter Fritz against
Christopher M. Hocker, for a tract of land and marble quarry,
with the buildings thereon, situate in Whitemarsh township, in
the county of Montgomery, containing twenty acres forty
perches, an equal undivided moiety of which the plaintiff claimed
under a deed executed to him by the defendant, in May, 1829.
The cause was removed by the defendant by habeas corpus
cum causa, to the Circuit Court, where it was tried before Rogers,
J., in July, 1833.
On the trial, the defendant proposed to give evidence that the
consideration of the conveyance under which the plaintiff sought
to recover had totally failed, and that there was fraud on his
part in procuring it. To reach this result, he offered in writing,
to prove the following train of circumstances :
" The parties are half brothers ; the defendant is the elder ;
he was a marble mason in the city of Philadelphia, and the plain-
tiff served his time with him. The plaintiff became of age in
the month of February, 1823, and was entitled to a small sum
of money. The defendant had a large stock, and was engaged
in extensive business. The defendant took the plaintiff into co-
partnership on equal terms, allowing him a credit for the prin-
416
Feb. 17, 1834.] OF PENNSYLVANIA. 370
[Fritz v. Hocker.]
cipal part of the share of the stock, which was brought by the
defendant into the concern. t This partnership continued until
March, 1826, when it was dissolved by mutual consent. The
stock was valued, and the defendant permitted the plaintiff to
take the whole of it at a valuation. The defendant in tre mean-
time, had become the proprietor of the marble quarry and farm.
The contract for it was made in the month of February, 1826,
and it was consummated by the actual conveyances, dated, April
1, 1826, The consideration for the whole was fifteen thousand
four hundred dollars. Of this, seven thousand and four hundred
dollars were paid in cash, and a bond and mortgage executed
for the balance of eight thousand dollars, which were afterwards
discharged, the money for the purpose being raised by giving a
bond and mortgage to a third person, viz. : Henry Beckett, on
the 1st of May, 1827. The mortgage *was executed r*o~-|-i
by Christopher M. Hocker alone, but the accompanying L
bond was the joint obligation of C. M. Hocker and Peter Fritz,
the latter being in no respect concerned in the purchase of the
quarry.
"Between the 17th of May, 1826, and the 18th of Decembei
of the same year, the plaintiff purchased of the defendant on a
credit, marble from the quarry to the amount of three hundred
and twenty-seven dollars, and between April 2d ; 1827, and the
13th of December, 1827, he purchased in like manner, to the
amount of one thousand and forty-three dollars and thirty-five
cents. Between the 19th of March, 1828, and the 24th of
December, 1828, he purchased in like manner, to the amount of
two thousand four hundred and fifteen dollars and fifty-five
cents ; and also, between the 19th of May, 1828, and October
30th in the same year, he purchased in like manner, to be ap-
propriated to the building of Arch Street Theatre, to the amount
of eight hundred and thirty-seven dollars and twenty-five cents,
making an aggregate at the end of the year 1828, of four thou-
sand six hundred and forty-three dollars and sixty-five cents.
" In the beginning of January, 1829, Hocker pressed, through
his counsel, the payment of this debt, and on the sixth of the
same month, the plaintiff, through his counsel, communicated to
Hocker a threat that he would take immediate steps to absolve
himself from the responsibility incurred on account of Henry
Beckett.
"On the 15th of January, 1829, the defendant entered a
lien against the Arch Street Theatre, Peter Fritz being made
defendant, and sued out a scire facias thereon.
" Immediately afterwards, the plaintiff began to urge the de-
fendant to enter into a co-partnership, having for its objects
the marble quarry of the defendant, and the marble yard and
VOL. iv. 27 4l7
371 SUPREME COURT [Philadelphia,
[Fritz v. Hocker.]
the business of the plaintiff in the city. He frequently urged
the large business that could be carried on ; the great advantage
which would arise from it ; his extent of work actually engaged ;
the great contracts which he was about to make, among the rest,
representing that he was to have one-half the building of the
Mint of the United States, and the large quantities of marble
that would be wanted for it. For a considerable time the de-
fendant remained unmoved by these importunities, and refused
to enter into the co-partnership. He at length, however, con-
sented, and agreed to become the partner of the plaintiff under
certain terms, which were to be reduced to writing. P. Fritz
estimated his stock at twelve thousand dollars, and stated that
he had ten thousand dollars worth of work engaged. In ex-
pectation of enjoying a share of these advantages, and of the
contracts to be made, the defendant agreed to put the one-half
of the quarry at a price greatly below its value, to wit, seven
thousand five hundred dollars. But it was distinctly understood
by him, that the co-partnership was to be permanent in its du-
ration, extensive in its operations, and to be the means of
affording to the defendant a vent for his marble without impos-
ing on him the necessity of seeking for it, and a place of deposit
f*^72l ** n Philadelphia? under the care of a party interested,
1 in whose fidelity reliance might be placed. The ar-
rangement was carried into effect in the month of May, and the
deed was signed and articles of co-partnership were executed,
the whole forming one transaction, and. being necessarily con-
nected with each other. The defendant carried the arrange-
ment into effect in perfect good faith. He used the joint names
of himself and P. Fritz in the sales of marble. He styled the
quarry and the teams the property of Hocker & Fritz, and he
firmly intended to consider and treat his co-partner as such in
all the transactions which might take place. No part of the
purchase-money having been paid at the time, the deed, &c,,
were signed, and the defendant repeatedly sent to the plaintiff
for money. He received for answer, inquiries concerning the
record of the deed, and intimations that no money would be
paid until the deed was recorded, which was in the defendant's
hands. The defendant then recorded the deed, and sent again
for the money, when for the first time, the plaintiff declared
that he owed him none. He was now brought to believe that
improper designs were harboured by the plaintiff relative to the
co-partnership, and he immediately received the deed from the
office of the recorder, and continued, as he still does, to retain
it. Not long afterwards, he came to Philadelphia, and inquired
why the name of the firm, as agreed on, had not been put up
at the marble-yard. He was informed by the plaintiff that he
418
i 7, 1834.J OF PENNSYLVANIA. 372
[Fritz v. Hocker.]
never would put it up, and it never was his intention to put it
up. The defendant received no part of the proceeds of sales at
the yard, and no share of the advantages of any contracts which
were made by the plaintiff. In the month of August, 1829, the
plaintiff entered into a contract to supply the material and do
the marble work of the northern half of the United States Mint;
but it was not made known by the plaintiff to the defendant.
On the contrary, the plaintiff, with a view to deprive him of the
advantage of the contract, and to reserve it altogether for him-
self, on the 18th of February, 1830, dissolved the co-partnership
without the consent of the defendant, and himself published the
dissolution, and then immediately proceeded to complete the
work for the Mint, which resulted in an operation to the extent
of about from thirty to forty thousand dollars. During the
period when the defendant believed the partnership to exist, the
plaintiff received marble from the quarry to the amount of one
thousand four hundred and seventy dollars and forty-five cents.
" Immediately after the said dissolution, Peter Fritz having
himself in vain endeavoured to procure and purchase marble at
the quarry, instigated his brother Frederick to make purchases,