THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
FACULTY T
>V \l A. A. V Vv I C\V i\ VX X
kjfi"4 . l^eporfs. ^u,<?r*w* 6wtrt,
REPORTS
CASES
ADJUDGED IN
THE SUPKEME COURT
PENNSYLVANIA.
BY
FREDERICK WATTS AND HENRY J. SERGEANT.
VOL. IV.
CONTAINING THE CASES DECIDED IN PART OP JULY TERM, IN SEPTEMBEP
TERM, AND PART OF DECEMBER TERM, 1S42.
PHILADELPHIA:
JAMES KAY, JUN. AND BROTHER, 122 CHESTNUT STREET.
PITTSBURGH: C. H. KAY & CO.
1843.
Entered, according to the act of Congress, in the year 1843, by JAMES KAY, Ju.\.
AND BROTHER, in the office of the clerk of the district court of the United States in and
for the eastern district of Pennsylvania.
Printed and Bound by
JAMES KAY, JUN. & BROTHER,
122 Chestnut Street
JUDGES
OP THE
SUPREME COURT OF PENNSYLVANIA,
DURING THE PERIOD OF THESE REPORTS.
JOHN BANNISTER GIBSON, ESQ., Chief Justice.
CHARLES HUSTON, ESQ.,
JOHN KENNEDY, ESQ.,
THOMAS SERGEANT, ESQ., Justlces '
MOLTON C. ROGERS, ESQ.,
OVID F. JOHNSON, ESQ., Attorney-General.
778543
MEMORANDUM. Judge Sergeant did not sit in the case of the Schuylkill
Navigation Company against Farr, being a stockholder of that company.
TABLE OF CASES.
Abbott v. Lyon 38
Adams v. Jackson 55
Alexander, Forrester v 311
Ankeny, Robb v 128
Anstatt, Poth v 307
Anthony, Commonwealth v.. . 511
Antillo, Union Canal Co. v.. . 553
Baird v. Campbell 191
Baldwin, Nickle v 290
Barras, Ewing v 467
Barry, Seaton v 183
Bayard, Duffv 240
Bell v. Hartley 32
Berger, Ulrich v 19
Bigler v. Karns 137
Bills, Monongahela Naviga-
tion Co. v 205
Bollman, Corbyn v 342
Boyer v. Frick 357
Bracken v. Miller 102
Brick v. Coster 494
Brouse, Gackenbach v 546
Bull v. Towson 557
Bunting's Appeal 469
Burbridge, Devall v 305
Burt, Larison v 27
Call v. Ward 118
Campbell, Baird v 191
Carney v. Wheatfield Town-
ship v 215
IV.-
Carroll v. Nixon 517
Cassiday v. M'Kenzie 282
Church, Tassey v 141
Church, Tassey v 346
Clay v. Irvine 232
Cochran v. O'Hern 95
Colt's Estate 314
Commonwealth v. Anthony . . 511
Commonwealth, Pontius v.. . . 52
Commonwealth v. Rainey ... 186
Corbyn v. Bollman 342
Coover, McCall v 151
Coster, Brick v 494
Cranmer v. Hall 36
Cunningham v. Gardner 120
Cunningham, Orr v 294
Dale, Kennedy v 176
Dalzell v. Lynch 255
Davis v. Dawes 401
Dawes, Davis v 401
Dawson v. Ryan 403
Delaware and Schuylkill Ca-
nal, Morris v 461
Devall v. Burbridge 305
Dewitt v. Eldred 414
Dickey, Dougherty v 146
Dougherty v. Dickey 146
Doylestown Bank, Jenks v. . . 505
Duffv. Bayard 240
Eldred, Dewitt v.
'A*
414
(5)
TABLE OF CASES.
Evans v. Montgomery 218
Ewing v. Barras 467
Fair, Schuylkill Navigation
Company v 362
Fenlon, Monongahela Navi-
gation Company v 205
Fisher, M'Caffrey v 181
Follmer, Lazarus v 9
Foltz, Grubb v 548
Foreman, M'Clure v 279
Forrester v. Alexander 311
Forsyth, McCall v 179
Foster v. Fox 92
Foster, Poe v 351
Fox, Foster v 92
Fretz's Appeal 433
Frick, Boyer v 357
Frick v. Kitchen 30
Frick v. Sterrett 269
Gackenbach v. Brouse 546
Gardner, Cunningham v 120
Gifien v. St. Clair Township. 327
Gray v. Packer 17
Grishobber, M'Cullough v 201
Grubb v. Foltz 548
Hall, Cranmer v 36
Hall v. Mathias 331
Hamilton, Hellings v 462
Hamilton v. Moore 570
Hankins's Estate 300
Hanna, Maris v 348
Hartley, Bell v 32
Hazleton Coal Company,
M'Gargell v 424
Hellings v. Hamilton 462
Hemphill v. Tevis 534
Hill, Kinleyv 426
Hill v. Roderick 221
Himebaugh, M'Call v 164
Houston, Kirkpatrick v 115
Huffnagle, Shoemaker v 437
Hulme, Taylor v 407
Insurance Company v. Seitz. . 273
Irvine, Clay v 232
Jackman v. Ringland 149
Jackson, Adams v 55
Jackson v. Knight 412
Jenks v. The Doylestown
Bank 505
Johnson v. Turner 465
Jones v. Shawhan 257
Juniata Bank, Patterson v. . . <. 42
Karns, Bigler v 137
Kelso, Sott v 278
Kennedy v. Dale 176
Killam v. Preston 14
Kinley v. Hill 426
Kirkpatrick v. Houston 115
Kirkpatrick v. Mathiot 251
Kitchen, Frick v 30
Knight, Jackson v 412
Knight v. Pugh 445
Kramer v. Sandford 328
Kronk v. Kronk 127
Lamb v. Lindsey 449
Larimer v. M'Call 133
Larison v. Burt 27
Lazarus v. Follmer 9
Lewis v. Lewis 378
Lindsey, Lamb v 449
Lothrop, Magaw v 316
Loyd, Union Canal Com-
pany v 393
Lynch, Dalzell v 255
Lyon, Abbott v 38
Mackey, Stuck v 196
Magaw v. Lothrop 316
Maris v. Hanna 348
Mason v. Wickersham 100
Mathias, Hall v 331
TABLE OF CASES.
vu
Mathiot, Kirkpatrick v 251
Mayor v. Randolph 514
M'Adam v. Orr 550
M'Anulty, Turnpike Co. v 293
M'Caffrey v. Fisher 181
M'Call v. Coover 151
M'Call v. Forsyth 179
M'Call v. Himebaugh 164
M'Call, Larimer v 133
M'Call v. Yople 168
M'Cleary v. Sankey 113
M'Clure v. Foreman 279
M'Cormick, Singer v 265
M'Cullough v. Grishobber . . . 201
M'Cullough v. Porter 177
M'Gargell v. The Hazleton
Coal Company 424
M'Grew, Smith v 338
M'Guire, Sage v 228
M'Kelvey v. Truby 323
M'Kenzie, Cassiday v 282
M'Kinney v. Mitchell 25
M'Kowan, Meaner v 302
M'Millan v. Red 237
Meanor v. M'Kowan 302
Menges v. Oyster 20
Miller, Bracken v 102
Mitchell, M'Kinney v 25
Monongahela Navigation Co.
v. Fenlon 205
Monongahela Navigation Co.
v.Bills 205
Montgomery, Evans v 218
Montgomery v. St. Stephen's
Church 542
Moore, Hamilton v 570
Morris v. The Delaware and
Schuylkill Canal 461
Nesbit, Wolfe v 312
Nickle v. Baldwin 290
Nixon, Carrol v 517
O'Conner v. Warner . . . 223
O'Hern, Cochran v 95
Ol wine's Appeal 492
O'Neal v. O'Neal. 130
Orr v. Cunningham 294
Orr, M'Adam v 550
Oyster, Menges v 20
Packer, Gray v 17
Parke v. Smith 287
Patterson v . The Juniata Bank . 43
Pierce v. Scott 344
Poe v. Foster 351
Pontius v. The Commonwealth . 52
Porter, M'Cullough v 177
Poth v. Anstatt 307
Preston, Killam v 14
Pugh, Knight v 445
Rainey, Commonwealth v. . . . 186
Randolph, The Mayor v 514
Red, M'Millan v 237
Reese v. Waters 145
Ridgway, Seitzinger v 472
Ridgway v. Stewart 383
Ringland, Jackman v 149
Road Case 39
Robb v. Ankeny 128
Roderick, Hill v 221
Roderick, Stewart v 188
Ryan, Dawson v 403
Saeger v. Wilson 501
Sage v. M'Guire 228
Sampson's Appeal 86
Sandford, Kramer v 328
Sankey, M'Cleary v 113
Schuylkill Navigation Com-
pany v. Farr 362
Scott, Pierce v 344
Seaton v. Barry 183
Seitz, Insurance Company v. . 273
Seitzinger v. Ridgway 472
Shawhan, Jones v 257
Shoemaker v. Huffnagle 437
Singer v. M'Cormick 265
Vlll
TABLE OF CASES.
Smith v. M'Grew 338
Smith, Parke v 287
Smyth, Wright v 527
Sottv. Kelso 278
Sprague v. Woods 192
St. Clair Township, Giffen v.. 327
St. Stephen's Church, Mont-
gomery v 542
Sterrett, Frick v 269
Stewart, Ridgway v 383
Stewart v. Roderick 188
Stiles v. The West Chester
Railroad Company 403
Stone, Young v 45
Stuck v. Mackey 196
Tassey v. Church 141
Tassey v. Church 346
Taylor v. Hulme 407
Tevis, Hemphill v 534
Towson, Bull v 557
Truby, M'Kelvey v 323
Turner, Johnson v 465
Turner v. Waterson . . . 171
Turnpike Co. v. M'Anulty ... 293
Ulrich v. Berger 19
Union Canal Company v.
Antillo 553
Union Canal Company v.
Loyd 393
Ward, Call v 118
Warner, O'Conner v 223
Waters, Reese v 145
Waterson, Turner v 171
West Chester Railroad Com-
pany, Stiles v 403
Wheatfield Township, Car-
ney v 215
Wickersham, Mason v 100
Wilson, Saeger v 501
Wolfe v. Nesbit 312
Woods, Sprague v 192
Wright v. Smyth 527
Yople, M'Call v 168
Young v. Stone 45
CASES
IN
THE SUPREME COURT
OF
PENNSYLVANIA,
NORTHERN DISTRICT, JULY TERM, 1842 CONTINUED.
Lazarus against Follmer.
If money be made upon an execution in favour of two or more plaintiffs, a pay-
ment to any one of them is good, and discharges the sheriff, and he cannot after-
wards maintain an action against the one whose receipt he took for it, for the use
of the other.
The charge of the court to the jury in one cause cannot be given in evidence
in another, as proof that that suit was prosecuted for a particular use.
ERROR to the Common Pleas of Ly coming county.
Peter Lazarus against William and David Follmer, executors
of Adam Follmer, deceased. Case in assumpsit. The whole case
is fully stated in the opinion of the Court.
Miller and Greenough, for plaintiff in error.
Maynard, for defendant in error.
The opinion of the Court was delivered by
HUSTON, J. To understand this case, I had to go back to some
previous matters which I proceed to state, that others may under-
stand it. Some twenty-five years ago, three small congregations,
one of German Lutherans, one of German Reformed, and one of
English Presbyterians, agreed to join in building a place of wor-
rv. 2 (9)
10 SUPREME COURT [Sunbury
[Lazarus v. Follmer.]
ship. None of these congregations was then incorporated, and
they appointed individuals to draw up the terms of an agreement.
These men were Henry Lantz and Daniel R. Bright, on the part
of the Germans, and D. Scudder and Samuel Hepburn, Esq., on the
part of the Presbyterians. They appointed Adam Follmer, Adam
Gudekunst, Daniel R. Bright, and Samuel Chesnut, as a building
committee, to contract for materials and workmen, and superin-
tend the work. Most of this committee were storekeepers or
mechanics, and as carpenters or masons who could undertake the
whole are not found in a small village, as Milton then was, the
committee had many contracts, and each member of the commit-
tee had his own account of work done and money paid by him.
Milton increased rapidly in population and wealth each denomi-
nation of Christians has now its own church. About the time of the
separation in 1825, referees were appointed to adjust the accounts
of the respective congregations with each other, and before them
were produced the accounts of each member of the building com-
mittee, viz : the accounts of Chesnut, of Follmer, of Gudekunst,
and of D. R. Bright, who were all then alive and present. This
was not agreed to by all ; and a suit was brought by Lantz and
Bright against Hepburn and Scudder on the articles of agreement.
Bright died, and Scudder died, and Hepburn refused to proceed
on part of defendants, and the style and parties to the suit was by
consent changed and stood :
Henry Lantz, who survived D. R. Bright, on behalf of the Ger-
man Lutheran congregation, for the use of Adam Follmer, Adam
Gudekunst, and Samuel Nicely, and Hannah, his wife, administra-
tors of D. R. Bright, against Robert M'Guigan, John M. Patton,
and others, trustees of the English Presbyterian Congregation in
the borough of Milton, as representatives of said congregation.
There was also an agreement that the persons named in the suit
were not to be personally liable, but recourse was to be had to
the property of the church for what might be recovered. The
cause was tried writ of error taken to this court; the judgment
was affirmed, and on executions the interest of the Presbyterians
sold and struck off for $800, to Adam Follmer, in 1831.
This suit is brought to recover from the estate of Adam Foll-
mer, who died about the beginning of 1832, the whole sum of
$742, being the balance of money bid, after deducting the costs.
Bright had died about 1827, and Adam Follmer and Hannah the
widow of Bright, administered. She afterwards married Nicely.
The plaintiffs contend that the suit and recovery, though in the name
of Lantz, was for the use of Bright's administrators ; and the defend-
ants contend that it was to pay money advanced by Follmer in
the lifetime of Bright, to pay money advanced by Gudekunst, who
was never administrator of Bright, nor, so far as appears, in any
way connected with his estate, and to pay Bright's representa-
July 1842.] OF PENNSYLVANIA. 11
[Lazarus v. Follmer.]
lives for money advanced by Bright, or perhaps to the German
congregation, if it had paid Follmer, and Gudekunst, and Bright.
The plaintiffs, to support their case, offered to read from the
record of that case, the charge of Judge Chapman, in the case
above referred to, which had been excepted to and returned with
and made part of the record. It began with this sentence : " this
action is brought by Henry Lantz, who survived Daniel R. Bright,
in behalf of the German Lutheran Congregation, for the use of the
administrators of D. R. Bright, deceased, to recover from the de-
fendants, trustees of the English Presbyterian Congregation in
the borough o c Milton, a sum of money that has been advanced, as
is alleged, more than their moiety or half part of the expense of
building of the Milton church." This was offered for the purpose
of proving that the administrators of D. R. Bright were the per-
sons for whose use the suit was prosecuted ; and for the purpose
of showing that Adam Gudekunst, Adam Follmer and S. Nicely
and wife, were considered the administrators of D. R. Bright.
The court admitted the record in evidence, but refused to admit
that part of the charge above quoted, for the purpose for which it
was quoted. To this the plaintiff excepted.
The court were right : no question was raised as to the rights
of Gudekunst, Follmer and Bright's administrators ; no evidence
given as to the amount each claimed ; no proof of how the change
of plaintiffs was made, or at whose instance. The court were not
called on to give an opinion, and clearly had no idea of affecting
the rights of those now before the court. Besides, the court would
not bind the plaintiffs as to their respective proportions of the
money to be recovered. That was not the matter in issue. The
recital of what the testimony was by the Judge is not evidence,
except perhaps in very special cases.
The plaintiff then offered from the record above-mentioned, as
follows :
26th of January 1831, jury called. Before verdict, defendants
except; verdict for plaintiff, $1263.97. Eodie, judgment.
No. 11, April term 1831, fieri facias. Land levied and con-
demned.
12th of April 1831, writ of error filed.
Levied on the undivided half part of the church and building
situate in the borough of Milton, called " Harmony Church,"
bounded on or near Mahoning street, and being on the base about
40 by 50 feet, and in height two stories.
8th of July 1831, judgment affirmed in Supreme Court re-
mittitur.
No. 25th of August 1831, venditioni exponas thus returned :
" To the judges within named. I do testify, that after due, public
and timely notice by me given of the time and place, I did, on
Saturday the 13th day of August 1831, expose the church and
building within mentioned to sale, at public vendue or outcry, and
12 SUPREME COURT [Sunbury
[Lazarus v. Follmer.]
sold the same to Adam Follmer, for the sum of $800 ; which sum,
after deducting costs, I have applied to the payment of the judg-
ment."
20th of August 1831, Sheriff Lazarus acknowledged deed to
Adam Follmer for the undivided half part of the church and build-
ing situate in the borough of Milton, called " Harmony Church,"
sold as the property of the English Presbyterian Congregation of
the borough of Milton.
24th of February 1823, letters of administration to Adam Foll-
mer and Hannah Bright, upon the estate of Daniel R. Bright.
6th of January 1831, will of Adam Follmer; William and
David Follmer, executors.
3d of August 1836, discharge of Hannah Nicely, as adminis-
tratrix of Daniel R. Bright, deceased, by the Orphans' Court of
Northumberland county.
10th of July 1837, letters of administration de bonis non to
Abraham Kreamer, upon the estate of Daniel R. Bright.
An assignment of Peter Lazarus, of all his right, claim and
demand in the suit, to Abraham Kreamer, administrator of Daniel
R. Bright ; all the costs of suit which had accrued, and such as
the court estimated might accrue, having been paid into court.
The plaintiff offered to prove by Peter Lazarus, that he, as
sheriff of Northumberland county, delivered a deed for the undi-
vided half part of the brick church in Milton, called the " Harmony
Church," to Adam Follmer, about the 23d of November 1831, and
took a receipt of that date from Adam Follmer, as one of the plain-
tiffs in the judgment on the record for the purchase money, to wit:
the sum of $800 ; that he paid only $57.59f of the purchase money,
which was applied towards the payment of the costs ; the balance,
to wit : $742.40^, never was paid. The defendants objected, on the
ground that it contradicted the return made by the sheriff, and
disclosed no cause of action, and the claim was barred by the
Statute of Limitations.
The plaintiff showed and read release of 10th of February 1842 ;
Abraham Kreamer, administrator de bonis non of Daniel R.
Bright, deceased, to Peter Lazarus. It was admitted that Samuel
Nicely died in the fall of 1832.
The plaintiff also offered the receipt of November 23d 1831,
signed Adam Follmer and Adam Gudekunst, for the sum of
$742.401 the balance raised on the sale in the above stated suit,
after deducting $57.59 costs in full. It was also admitted that
Adam Gudekunst died eight or ten years ago.
The above was the whole evidence intended to be laid before the
jury by the plaintiff, except that the plaintiff also offered to show
that Adam Follmer was the acting administrator of Daniel R.
Bright, did the whole business, and received all the compensation.
The defendant showed record of suit against Peter Lazarus,
July 1842.] OF PENNSYLVANIA. 13
[Lazarus v. Follmer.]
brought July 21st 1837, and nonsuit, January 9th 1840. The
court rejected the evidence, and the plaintiff excepted, and assigned
for error, that " the court erred in rejecting the evidence offered
at the trial, contained in the several bills of exception."
In order to determine whether the evidence offered, or any part
of it, was legal evidence in the case trying, we must remember
that that cause was instituted and carried on to decide what pro-
portion of the expense of erecting the church was due from the
Presbyterians, and it decided that matter : it was instituted in the
names of Lantz and Bright, on behalf of the Germans, against
Hepburn and Scudder, on part of the Presbyterians. Some of the
parties on record died, some were changed by consent, and an
agreement was filed that the parties on record should not be per-
sonally liable. This cause is to try whether Bright's estate is
entitled to all the money recovered, or whether Follmer's or Gude-
kunst's representatives are each entitled to a part, and how much
each has a right to. The parties are different ; the objects in con-
test are different; the evidence must be different, to meet the
issues here ; even depositions taken in that case, could not be evi-
dence in this. The only purpose for which that record could be
used in this case, was to show the amount recovered. It was
admitted for that purpose but it is attempted to use it to show
that Bright's representatives are entitled to all the money reco-
vered, and of course, that Gudekunst and Follmer are not entitled
to any part of it. It is not evidence for this purpose. We must
see that the evidence offered was offered as making out the plain-
tiffs whole case ; in this point of view it was rightly rejected by
the court. No part of it was evidence to prove anything not in
issue, not tried nor decided in that case. In this case the parties
are different the claim is against a different party the dispute
is different and to support the suit, the testimony must be dif-
ferent. The plaintiff here must prove how much he advanced of
his own funds there it was proved how much the Germans
advanced, how much Follmer paid, how much Gudekunst paid
and it was not in issue, not tried, not decided how much each was
entitled to. Generally, when a suit is marked for the use of a
person, he is entitled to receive the money if for the use of several
persons, any one may receive it, and his receipt to the sheriff is
good, and discharges the officer at least this would be the case
unless notice not to pay all to one has been given. There is
enough difficulty and responsibility on a sheriff already. If
where there are several plaintiffs who recover, and no notice to
the contrary is given to the sheriff, and he pays the money to one
or two of them, he has nothing to do with their disputes about
their respective proportions. Perhaps the case in 1 Watts 351,
where the sheriff paid to one judgment creditor more than was
due on his judgment, may not apply to a case like this, where a
iv. B
14 SUPREME COURT [Sunbury
[Lazarus v. Follmer.]
sheriff pays on the only judgment, the exact amount of it, and the
claimants to interest in that judgment contend about the amount
of their respective interests ; with this the sheriff has nothing to do,
and it is not easy to see how he can maintain this suit.
Judgment affirmed.
Killam against Preston.
Assumpsit will not lie by one partner to recover from the other a balance due
upon the settlement of their partnership account, without proof of an express
promise to pay.
A partnership account stated by one partner after the dissolution, and presented
to the other, who retains it in his possession for more than a year without objec-
tion to it, is not sufficient evidence, upon which a recovery of the balance appear-
ing to be due upon it, may be had. Nor is the copy of such account retained by
the plaintiff evidence at all, without notice to produce the original.
ERROR to the Common Pleas of Wayne county.
Warner M. Preston against Jacob Killam. This was an action
on the case in assumpsit. The case is fully stated in the opinion
of the court.
Wheeler and Case, for plaintiff in error. This partnership had
been dissolved for two years and a half, when one of the partners
makes up an account and sends it to the other, and this was
decided by the court below to be sufficient evidence for a recovery ;
and not only that, but for a recovery of the whole balance, which
even if the account were right, was double the amount he was enti-
tled to. These parties were raftsmen, and not subject to those
rules of mercantile law which give effect to accounts rendered in
the course of a correspondence. 1 Story Com. 500, pi. 526. Be-
sides, the account given in evidence was but a copy of what the
plaintiff alleged to be the ground of his action.
Fuller, contra. These parties were partners, and come pecu-
liarly within that rule which requires the party who receives an
account rendered to make his objections, if he has any, within a
reasonable time. 2 Vern. 276; 2 Vez. Jr. 239; 3 Johns. Chan.
569; 2 Mk. 252; 7 Cranch 147; 1 Binn. 191. The objection
that the paper given in evidence was but a copy was not made in
the court below.
/%1842.] OF PENNSYLVANIA. 15
[Killam v. Preston.]
The opinion of the Court was delivered by
KENNEDY, J. In April 1837, the plaintiff and defendant entered
into a partnership for the purpose of buying and selling lumber,
which was continued until the latter end of August in the same
year, when they gave up the business. Something better than
two years afterwards, Preston made out an account of their part-
nership transactions, stating the moneys paid out and received by
each, and showing a difference in his own favour of $473.65. He
made out duplicates of this statement of their accounts, and placed
them in the hands of a Mathias Moggridge, who, after comparing
the one with the other, to see that they corresponded, delivered
one of them, at the request of Preston, to Killam, who resided
about 14 miles from Preston, telling Killam that Preston had sent
it to him. Nearly a year afterwards, Preston receiving no com-
munication or reply of any kind from Killam, instituted this
action of assumpsit, for the purpose of recovering the $473.65,
which, it would seem, he considered to be the balance in his
favour, coming from Killam upon a settlement of their partner-
ship accounts. In the declaration there are three counts : one for
money lent and advanced; the second for money had and received;
and the third upon an account stated.
On the trial of the cause, the plaintiff offered to prove by
Mathias Moggridge, as stated above, that the witness, at the
request of the plaintiff, in January 1840, nearly a year before the
commencement of this suit, had delivered to the defendant a true
copy of the account as stated by the plaintiff, which was produced
in court. The defendant objected to this evidence ; but the court
overruled the objection, and admitted the evidence; to which