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application, so as aforesaid made to them, are thereby au-
thorized and required to appoint three impartial men, if
necessary, to inquire into the propriety of granting the prayer
of the petition, and it shall be the duty of the said men so ap-

517



465 SUPREME COURT [Philadelphia,

[Case of Maccungie township.J



I~*4fifi1 or an y two of them, to make a plot or draft of

J *the township proposed to be divided, and the division
line proposed to be made therein, or of the township proposed
to be laid off, or of the lines proposed to be altered of any two
or more adjoining townships, as the case may be, if the same
cannot be fully designated by natural boundaries, all which
they, or any two of them, shall report to the next Court of Quar-
ter Sessions, together with their opinion of the same, and at
the court after that to which the report shall be made, the court
shall confirm or set aside the same, as to them shall appear just
and reasonable.

The first exception for which the proceedings were quashed,
by the Court of Quarter Sessions, is to the form of the petition,
because it does not ask for an inquiry into the propriety of the
division prayed for. This exception does not appear to be well
founded, for the petition not only solicits a division of the town-
ship, but sets forth the reasons for doing so, which of necessity
demanded of the court an inquiry into the propriety of grant-
ing the prayer contained in the petition. The mode or means
by which the court shall make this inquiry, was not necessary
to be inserted in the petition, because the act of assembly
itself points out this, and from its terms would seem to leave it
discretionary with the court, whether they shall appoint three
impartial men or not, for the purpose of aiding in this particu-
lar. By the express words of the act, the court is only author-
ized and required upon application by petition for the division
of a township to appoint three impartial men " if necessary,"
and of this necessity the court is to judge according to its dis-
cretion.

The second exception upon which the court founded their
order to quash the proceedings, was to the previous order made
by it, appointing the three men, and directing the inquiry which
they were to make, which confined them to the propriety of
dividing the township, according to the line of division, as set
forth and prayed for in the petition, and did not authorize
them to inquire into the propriety of dividing it by any other
line.

It is agreed that the court had no power to restrict the com-
missioners appointed by them in their inquiries, to the line of
division proposed in the petition ; and it has been likened to a
petition for laying out a public highway and the appointment
of viewers thereon, where it is alleged that although the termini
of the road prayed for must be set out in the petition, yet if the
route and intermediate points, be also designated, and the
viewers appointed be restrained by the order of the court ap-
pointing them, to the route and courses set forth in the petition
518



March 30 1832.] OF PENNSYLVANIA. 466

[Case of Maccimgie township.]

in laying out the road, if they should be of opinion that a
public highway was necessary and wanting between the ter-
mini mentioned in the petition, the whole proceeding would
be irregular and ought to be quashed. Admitting all this,
as it regards the viewing and laying out of a public high-
way, to be correct, it will be difficult, I apprehend, to
apply the reason of it to an application for the division
of a township. In the first place, it may be observed,
that public highways are only to be laid out and established
*for the convenience and benefit of the public at large ; r^ 4fi r - i
and if it be adjudged proper and necessary that a L
highway should be laid out between any two given points, the
interest of the public demands, and can only be consulted by
adopting, in laying out the road, the shortest and best practica-
ble route between these points, of which the viewers are to
judge. To permit the petitioners, who are at most but a small
part of the public, and who have frequently some private inter-
ests to be promoted by laying out the road, to designate and
direct in their petition the whole route of it, would be to defeat
the public interests in many instances at least, which is the
great object in laying out public roads. The only consideration
that is permitted to interfere with this principle, is, the un-
necessary and useless sacrifice of private property and improve-
ments, which is to be avoided. All these considerations are to
operate in settling and determining upon the route of the road,
and makes it highly proper that the viewers and the court
should be left at full liberty to exercise their judgments in re-
gard to them.

In the next place it must be considered that by our act of as-
sembly which prescribes the mode and gives the authority for
laying out roads, that the Courts of Quarter Sessions cannot
dispense with the appointment of viewers. They must appoint
them ; and these viewers are to be appointed, as well for the
purpose of determining upon the particular course of the road,
as upon its necessity ; and in deciding upon the ground or course
where the road shall be laid out and established, they must be
left at full liberty and discretion in doing so, to decide according
to their judgment of what the public iuterest, having a proper
regard for the private improvements and rights of individuals,
would seem to require.

Now it is obvious that the public have little if any concern or
interest in the division of a township. According to the very
terms of the act of assembly already recited on this subject, it
will be seen that it is only to be done for the convenience of the
inhabitants of the township, and upon their application by peti-
tion. It is only then, in those cases where the inhabitants of a

619



467 SUPREME COURT [Philadelphia,

[Case of Maccungie township.]

township think their convenience requires a division of the town-
ship, that the Courts of Quarter Sessions are authorized to act
at all. This matter of convenience is a thing of which the in-
habitants of the township are to judge in the first place, and no
division of the township can be made in opposition to their
wishes and judgment in this particular. The Courts of Quarter
Sessions would seem to have merely the power of inquiring in
such cases into the reasonableness and propriety of the wishes
of the applicants as expressed in their petition ; and whether
the division prayed for was in conformity to the wishes of the
inhabitants generally of the township or not ; and if necessary,
to appoint three impartial men, to aid in ascertaining all these
matters ; and finally, to grant or to reject the prayer of the
petition. If then, the inhabitants of the township have the
right, and must exercise it in the first place, of deciding whether
r*4fiSl their convenience requires a division of *their township
-" or not, as it must be admitted, I think, that they have,
it follows that they have the right to decide where the line of
division shall be, if a division be made at all ; because whether
their convenience shall in any degree be promoted by a division
of the township, may depend, in their opinion, entirely, or at
least mainly, upon where the line of division shall be fixed.
They have a right then, as it appears to me, to propose in their
petition to the court, a line of division, and indeed such are al-
most the very words of the act of assembly, and to say to the
court that their convenience will be promoted by making a di-
vision of the township according to the line so proposed ; but
if it cannot, or be not made in conformity thereto, that they do
not desire any division to be made. The third exception, there-
fore, taken in the court below, furnished no ground whatever
for quashing, the proceedings.

The insufficiency of the remaining reason for the court below
quashing the proceedings which is contained in the seventh ex-
ception there taken, has been fully established by what has been
said upon the second ground ; for if the order of the court be-
low in appointing the commissioners was correct, as has been
shown it was, the report of these commissioners, which forms
the subject of this seventh exception, and which is in every re-
spect a full and complete response to the order of the court
under which they acted, must also be free from error. The
order of the Court of Quarter Sessions quashing the proceedings
in this case is reversed, and the record thereof remanded with
direction to the said court to proceed therein as is further re-
quired by law.

Proceedings of the Court of Quarter Sessions reversed.
Cited by Counsel, 1 Barr, 100 ; 9 N. 357.

520



AfarcA30,1832.] OF PENNSYLVANIA. 469

*[PHTLADELPHIA, MARCH 30, 1832.] [*469]

Kimball who Survived Tys^n against Kimball.

APPEAL.

A. & B. brought an action of assumpsit against C., in which they declared
upon an alleged agreement, that the said C., in consideration that they would
enter satisfaction on two judgments which they held against him as adminis-
trators of D., for the purpose of enabling him to make a perfect title to one E.
for a lot of land which C. had sold to him and which was bound by those
judgments, promised to give to A. and B. a new judgment for the aggregate
amount of the two judgments on which they at his request had agreed to enter
satisfaction ; averring, that confiding in the said promise, they did enter satis-
faction, &c. Before the trial of the cause took place, A. died and his son was
offered as a witness to prove the agreement after having executed to a third
person, an assignment of all his interest in the suit and the money for the re-
covery of which it was brought, and offered to pay into court all the costs
which had accrued and a sum sufficient to cover all which might thereafter
accrue ; Held that he was incompetent on the ground of interest, notwithstand-
ing the assignment, &r , because in the event of the plaintiff's failure to re-
cover in this suit, the estate of the witness's father A., of which he was en-
titled to a distributive share, would be liable to make good to those interested
in the estate of D., of which he was one of the administrators, his proportion
of the amount of the two judgments upon which satisfaction had been entered.

APPEAL from the decision of the Chief Justice holding a
circuit court in Montgomery county in March, 1832.

After argument by Rawle, Jr., for the appellant, and by
Kittera for the appellees, the opinion of the court, in which the
case is fully stated, was delivered by

KENNEDY, J. This was an action of assumpsit brought by
Jonathan Kimball and Peter Tyson, (who died after the com-
mencement, and before trial of the suit,) to recover the amount
of two judgments which had been entered in the Court of
Common Pleas of Montgomery county, in favour of Jonathan
Kimball and Peter Tyson, the plaintiffs in this action, against
Josiah Kimball, the defendant, upon judgment bonds given by
him to the plaintiffs, each for the sum of eight thousand five
hundred and fifty-four dollars and twenty-eight cents, condi-
tioned for the payment of one-half that sum.

The declaration set forth, that the defendant after having sold
ten acres of land, part of his real estate, which was bound by
the judgments, to a certain Jonathan Shaw, and having agreed
to make Shaw a title for the ten acres, clear of incumbrances,
applied to the plaintiffs in the judgments and requested them to
enter satisfaction upon the judgments, that he might be enabled
to comply with his contract, in making a title to Shaw, and at

521



469 SUPREME COURT [Philadelphia,

[Kimball v. Kimball.]

the same time promised the plaintiffs, that if they would enter
satisfaction upon the judgments, he would give a new judgment
to the plaintiffs in the Court of Common Pleas of Montgomery
r*470T coun ty> f r tne aggregate *amount of those upon which
- he requested satisfaction to be entered : That the plain-
tiffs, confiding in the promise of the defendant, and at his re-
quest, did enter satisfaction upon the judgments ; but the de-
fendant afterwards refused to give or to confess a new judgment
to them, to secure the payment of the amount of money for which
the satisfied judgments had been entered, and which was justly
due upon them at the time satisfaction was entered, according to
his promise and undertaking in this behalf.

Upon the trial of the cause, it appeared that the plaintiffs,
Jonathan Kimball, and Peter Tyson who was married to the
sister of Jonathan Kimball, had been the administrators of Wil-
liam Kimball deceased, the father of Jonathan Kimball, the
plaintiff, and of Josiah Kimball, the defendant, and that the
bonds upon which the two judgments were entered up in their
favour, against the defendant Josiah Kimball had been given to
them, partly for their own use, and partly in trust for the use
and benefit of the other children of the said William Kimball ;
and that the satisfaction entered upon the judgments had been
done without the consent, and without consulting these other
children. It did not appear that these other children had been
paid or satisfied, in any way, for the amount of their interest in
these judgments by Jonathan Kimball and Peter Tyson, or
either of them. On the part of the plaintiff, William Tyson,
one of the children of Peter Tyson, who was one of the plain-
tiffs in the judgments, and one of the plaintiffs in this action, at
its commencement, and for some time afterwards, until he died
intestate, leaving an estate which passed and descended to his
children, was offered as a witness after having executed an
assignment under his hand and seal, to a certain John Keck, in
consideration of ten dollars paid to him by Keck, of all his
right, claim, interest, and demand in the moneys for the recovery
of which this suit was brought, as also all his right and interest
in the same ; and the plaintiffs offering at the same time to pay
into court all the costs which had accrued in the suit, and a sum
sufficient to pay and cover all that might thereafter accrue.
The defendant objected to the competency of William Tyson, so
offered as a witness, on the score of his being interested in sus-
taining and promoting a recovery in this suit. The Chief Jus-
tice thought so, and refused to admit him. From this decision
an appeal has been taken to this court.

The decision of the Circuit Court upon this point, we think
was right. William Tyson, who was offered as a witness on
522



J/arcA30,1832.] OF PENNSYLVANIA. 470

[Kimball v. Kimball.]

behalf of the plaintiffs, had merely transferred and assigned
such proportion of the money, which might be recovered in
this action, as would be coming to him as. one of the children
and heirs of his father ; but it is manifest that he was interested
in a recovery being had beyond this ; for he could have no claim
to the money or to any portion of it, recovered in this suit,
until all the other children of William Kimball deceased, be-
side Jonathan Kimball, were satisfied and paid their respective
proportions of it ; and in case of a failure to recover in this ac-
tion, he would not only lose his claim to that portion of the
surplus *which might have been coming to him as one r*A.T\-\
of the children of Peter Tyson, his father, after satisfy- L
ing Jonathan Kimball and the other children of William Kim-
ball deceased, but his father Peter Tyson's estate would be liable,
in conjunction with Jonathan Kimball, to make good to the
other children of William Kimball deceased, their respective
proportions of the amount of the two judgments in which they
stand as trustees for these other children, and for which they had
made themselves chargeable, by having entered satisfaction upon
the judgments and thereby destroyed the security which they
had for the payment of this trust money, without having received
it, and without the consent of the cestui que trusts. The manner
in which Jonathan Kimball and Peter Tyson have alleged that
they entered satisfaction upon these judgments, was clearly a
breach of their trust, and such an act as made them liable to pay
out of their own pockets, whatever of the amount thereof should
be thereby lost, and was held in trust ; so that Peter Tyson's
estate would and must be reserved just so much as his propor-
tion, that is, one-half of whatever the trust money was equal to,
in case of a failure to recover in this action, which must neces-
sarily affect and reduce the sum that would be coming to William
Tyson as his purpart of his father's estate, exclusive of what
might be added to it by a recovery here, and the assignment which
he had made was only of his interest in this action and his right
to claim any portion of the money which might be recovered in
it, retaining his interest in the other estate of his father. William
Tyson, the person offered by the plaintiff as a witness, was thus
directly interested in promoting a recovery in this action, not-
withstanding his assignment, because it would go in relief of, and
prevent a diminution of the residue of his father's estate, which
otherwise must inevitably take place, and of course diminish his
distributive share of it. This case has no analogy to the case of
a creditor, who is a competent witness, generally, to prove a debt
due to his creditor, notwithstanding the recovery of it may en-
able the debtor to pay the witness his debt, because every debtor
is presumed to be of sufficient ability to pay his debts, inde-

523



471 SUPREME COURT [Philadelphia,

[Kimball v. Kimball.]

pendent of the debt or claim in controversy, until the contrary
shall be shown ; and therefore the creditor cannot be supposed
to have any immediate interest in his debtor's recovery, as he
will get his debt at all events.

Neither has the case of Patton v. Ash, 7 Serg. & Rawle, 116,
which has been referred to, and mentioned also by the counsel
for the appellant ; or if it has, it is rather against him, for the
court seem to insinuate that if it had been suggested there that
the administrator, who was a party on the record to the suit,
had committed a devastavit he would not have been a competent
witness, although he had released all claims to any possible bene-
fit which he might derive from a recovery in it. Now it appears
in the case before us, that a devastavit was committed which must
diminish the amount of the estate out of which the person offered
as a witness claims to have his equal distributive share, unless
there shall be a recovery in this action.

f*4791 *The case of Baynton v. Turner, 13 Mass. Rep. 391,
-I has also been quoted and relied on by the appellant's
counsel, where a son and one of the heirs of the plaintiff's in-
testate, after having assigned and released to the plaintiff all his
proportion and benefit of the money which might be recovered
in the suit, and having received from the plaintiff a deed exe-
cuted by her to him, indemnifying him from all costs and charges
to which he might be liable in consequence of the suit, was
offered by the plaintiff as a witness upon her part, and after
objection by the defendant was held to be competent by the
court. We also think that that case is very different from the
one now before this court, because it did not appear in that case
as it does in this, that a recovery by the plaintiff would go to
relieve the estate of the intestate in which the witness was still
interested, from a charge that must otherwise inevitably fall
upon it and reduce his share.

Judgment of the Circuit Court affirmed.



[PHILADELPHIA, MARCH 30, 1832.]

Craig against Craig.



IN ERROR.



The mere possession of a bond by one of several co-obligors, is no evidence
that he has paid the whole debt.

Therefore, in an action by one co-obligor who alleged that he had paid the
whole debt, against the other for contribution, where the joint liability of the
plaintiff and defendant was admitted, it was held to be error to permit the

524



March 30, 1832.] OF PENNSYLVANIA. 472

[Craig v. Craig.]

bond to be given in evidence by the plaintiff to prove that he had paid the
whole debt.

The declarations of a third person, as to a disputed fact, made in the pres-
ence of both parties, is evidence, though not conclusive, against a party who
has consented to submit the fact to his decision ; even where such third person
is capable of being examined as a witness.

THIS case came before the court on a writ of error to the
Court of Common Pleas of Northampton county.

From the record, which was returned with three bills of ex-
ceptions to the opinion of the court below on points of evidence,
it appeared, that Charles Craig, the defendant in error, brought
this action of assumpsit against his brother, Thomas Craig, Jr.,
the plaintiff in error, to recover the proportion alleged to be due
from him of two bonds, in which they were jointly bound to their
father, General Thomas Craig, the whole of which Charles
alleged he had paid.

On the trial in the Court of Common Pleas, the plaintiff, after
having proved the execution of the bonds, and the handwriting
of the *obligee to certain indorsements on them, offered r* 47 o-i
in evidence both the bonds and the indorsements, for the L
purpose of proving the original liability of the plaintiff and de-
fendant as co-obligors, and that he, the plaintiff, had discharged
the debt. Their admission was objected to by the defendant's
counsel, because in that stage of the cause the bonds were not
evidence to prove any other fact than the joint liability of the
plaintiff and defendant to the obligee, which was admitted, and
because the indorsements were not as good evidence as the oath
of the obligee who ought to have been produced. The court re-
jected the indorsements, but admitted the bonds in evidence,
because their execution had been proved; adding, that "the cir-
cumstance of their having been delivered up to the plaintiff
should have its proper weight in the decision of the cause." The
opinion of the court on this point, formed the subject of the first
bill of exceptions.

In the course of the trial, the plaintiff called as a witness
Jacob Stem, who testified that he and two other persons were
chosen by Charles Craig and Thomas Craig, Jr., to settle the
matters in dispute between them. The referees met at the house
of Charles Craig at the Lehigh Water-gap, on the 23d Decem-
ber, 1823, when the plaintiff and defendant and General Thomas
Craig attended. Charles produced two or three bonds which
were not then due, and Thomas objected to having anything to do
with them. He said he was not willing to pay anything on
these bonds as Charles had not given anything for them. Gen-
eral Craig then said, that he was satisfied, or that Charles had
satisfied him for these bonds. The referees did not take into

525



473 SUPREME COURT [Philadelphia,

[Craig v. Craig.]

consideration any bonds that were not then due, and they were
handed back to Charles. By the consent of the parties General
Craig was examined before the referees without oath. On his
cross-examination the witness said, that he was sure the word
used by General Craig was " satisfied ;" he said nothing about
payment.

Dr. John Boyd, who was also examined as a witness on the
part of the plaintiff, stated, that in the course of the summer of
1828 he called on Thomas Craig, Jr., to endeavour to settle the
dispute between him and his brother Charles. Thomas said he
was not willing to pay Charles for these bonds, because he had
never paid his father anything for them ; and added, in sub-
stance, that he was willing to leave it to his father's decision.
The witness went on to state, that sometime after, a meeting
took place at Allentown between General Craig, his two sous,
Frederick Hyneman and the witness, for the purpose of settling
the dispute relative to the bonds, when General Craig acknowl-
edged unhesitatingly, that he had received full payment from
his son Charles of the bonds payable 1st May, 1824. Here the
counsel for the defendant interposed, and objected to evidence
being given of any declarations by General Craig on this occa-
sion, or of any part of the transaction except so far as it con-
sisted of the acts and declarations of Thomas Craig, Jr. The
court, after argument, decided, that inasmuch as Thomas Craig,
Jr., had declared to the witness that he was willing to leave the
r*474.1 ma ^ er to his father's decision, and inasmuch *as the



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 3) → online text (page 60 of 67)