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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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ment of a court of competent jurisdiction was obtained by imposi-
tion, fraud or forgery, practised on the court, or by mistake, wrong
or injustice. The merits cannot be thus overhauled and re-exam-
ined in a collateral proceeding. It is either not at all admissible
in evidence, as to third persons, or if admissible, is conclusive as to
every thing it directly decides as the matter in question though


472 SUPREME COURT [March Term,

[Hoffman v. Coster.]

*47*n not M * i n f erence8 *that might be drawn from it. 1 Phill.
I Ev. 242, 254 ; Amb. 761. I speak of the effect in a civil
proceeding, and not in a criminal one. Thus in Noel v. Wells, 1
Lev. 235, the court would not receive evidence to prove that a will
of personal property was forged in contradiction to the probate.
Evidence will not be admitted to prove that another person was
appointed executor, or that the testator was insane; for that
would be to falsify the proceedings of the ordinary, in cases where
he is the exclusive judge. Ib. So, in Meadows v. The Duchess
of Kingston, the plaintiff filed a bill to set aside a bequest by
the duke to the defendant, on the ground that she had imposed
herself on him as a single woman, being previously married.
The defendant pleaded a decree in the ecclesiastical court in
her favor, in a suit by her against her first husband of jactita-
tion of marriage. The lord chancellor held it conclusive. He
says, " I lay it down as a general rule, that whenever a matter
comes to be tried in a collateral way, the decree, sentence or
judgment of any other court, having competent jurisdiction, shall
be received as conclusive evidence of the matter so determined."
Amb. 761 ; 1 Phill. Ev. 264, 267. In Sheets' v. Hawke, 14 S.
& R. 173, it was decided that the record of the discharge of an
insolvent debtor is conclusive as to the fact of his having com-
plied with all things required by law to entitle him to a dis-
charge, and cannot be inquired into in a collateral action. Parol
evidence is not admissible to show the grounds of a decree of
the Court of Common Pleas. Gallagher v. Kennedy, 2 Rawle
163. A judgment of a court of competent jurisdiction discharg-
ing a debtor under the Bread Act, cannot be impeached col-
laterally by proof that at the time of his discharge he had a suffi-
cient sum of money about his person to discharge the debt.
McKinney w. Crawford, 8 S. & R. 354. To the same point might
be cited the cases of Wright v. Deklyne, 1 Pet. 202 ; Berks and
Dauphin Turnpike Co. v. Kendel, 11 S. & R. 123, and indeed
there would be no end of citing them. I shall only refer to the
case of Slocura v. Slocum, 3 Cranch 300. There the court below
instructed the jury that a fraud practised by a debtor in obtain-
ing his discharge under the insolvent law avoided the discharge
and left his security liable for his bond not to depart from the
prison rules. But the Supreme Court of the United States held
this construction to be erroneous and reversed the judgment,
saying that the judgments of a court of competent jurisdiction,
although obtained by fraud, have never been held void, and there-
fore all acts performed under them are valid as far as respects
third persons.

The only exception to the rule which has been allowed of, when
such judgment or proceeding is given in evidence against third per-


[Hoffman v. Coster.]

sons, is that they may aver and prove that such judgment or pro-
ceeding was procured or kept on foot by covin or collusion between
the parties to it ; and in such case, though binding between them-
selves, *its operation as to third persons may be defeated. r*A"
Fermor's Case, 3 Co. 77, however, where the rule is stated *
that all acts mixed with fraud and deceit, whether judicial or other-
wise, are wrongful and unlawful, was the case of a common assur-
ance not of an ordinary judicial proceeding. There a lessee for
years levied a fine by covin with another, in order to gain the fee
by the statute of non claim ; but it was held not binding in his
favor against the reversioner. Some of the cases cited there are
of judicial proceedings. Thus a widow entitled to dower, by covin
between her and another, caused a stranger to disseise the tenant,
in order that she might bring a writ of dower against him, which
she did and recovered ; yet though she had a good title, the whole
was considered void and of no force to bind the terre tenant. But
if the proceeding were adverse, if the party, as Lord Coke says,
venit tanquam in arena, it is otherwise. Thus it is said in the
same case, if a disseisor (although he gains the possession by wrong),
levys a fine with proclamation, yet it shall bind the disseisee. In
the Duchess of Kingston's Case, before the House of Lords, on
her indictment for bigamy, she set up a sentence in her favor in
the ecclesiastical court, on a suit for jactitation of marriage, between
her and her husband, but it was held that the crown, in a criminal
prosecution might aver and prove that the sentence was obtained
by covin and collusion between her and her husband. 1 Phill. Ev.
266. So in reply to a plea by an executor, of judgments recov-
ered, a creditor may reply per fraudem ; and a creditor affected by
the lien of a former judgment may show it was obtained by covin.
In all these cases, the record itself is not controverted ; it is bind-
ing between the parties to the fraud ; but a stranger may prevent
those concerned in it from employing it to his prejudice.

But the exception does not apply to parties or privies. The
record is conclusive evidence against them in a collateral pro-
ceeding ; and they cannot invalidate it by giving evidence of
fraud, but must apply to the court which pronounced the judg-
ment, to vacate it. 1 Phil. Ev. 266. In the case of Proudham
v. Phillips, cited Ambl. 761, the plaintiff brought assumpsit
against the defendant, who gave in evidence her marriage with
Meriman. The plaintiff then produced a sentence of the ecclesi-
astical court annulling this marriage for that when solemnized,
the defendant was married to Delafield. The defendant offered
to prove that the sentence was obtained per fraudem. Willes,
C. J., after much debate, took a distinction between the case of
a stranger who cannot come in and reverse the judgment, and
therefore must of necessity be permitted to aver that it is fraudu-



[Hoffman r. Coster.]

lent, and the case of one who is party to the proceeding. If
he plead that the judgment was fraudulent, he cannot give evi-
dence of it, but must apply to the court which pronounced the
sentence to vacate the judgment; and if both parties colluded,
it was never known that either of them could defeat it.

An action will not lie against the defendant for obtaining a
*4751 Decree *' n cnancer y by fol 86 an d forged evidence; such
* decree being still in force. Peck v. Woodbridge, 3 Day
30. And where an action was brought in the Supreme Court
if New York against a defendant for suborning a witness to
swear falsely in a cause in Connecticut, whereby judgment was
given against the plaintiff, contrary to the truth and justice of
the case, it was held the action would not lie. Kent, J., relied
on the conclusiveness of the judgment in Connecticut, which
it was attempted to open in a collateral action : Smith v. Lewis,
3 Johns. Rep. 157. In a suit on a judgment in another state,
the plea that it was obtained by fraud, mistake,, or want of
consideration, is not admissible. Benton v. Bergot, 10 S. & R.

Here Nathaniel R. Snowden was a party in the judgment,
execution and proceedings, in the Court of Common Pleas of
Berks county, where this acknowledgment took place. The judg-
ment was recovered to his use ; he was the plaintiff, and his remedy,
if the record were fraudulently or improperly altered, was an appli-
cation to that court to correct it. That court had full power to
inquire into the matter by inspection of its record, by examination
of its officers, by compelling the attendance of witnesses, and we
must take it for granted, if they were convinced the record was
improperly altered, would have amended it, provided the applica-
tion were made in due season, and the rights of third persons not
thereby affected. This was the proper remedy instead of an eject-
ment in another court, and an effort there to condemn the existing
record, and create a new one by parol evidence.

There is another feature in the proposed inquiry, which is also
constituted a strong objection. And that is, that according to the
evidence offered, the alteration of the record was made by the pro-
thonotary's clerk. The act of the clerk in his capacity as such, is
(speaking civiliter) the act of the prothonotary, who is the maker
and keeper of the records, under the supervision of the court. It
is then the record of the court made by the proper officer, and
another court cannot say whether the record made by the proper
officer, was properly made or not, whether he did right or wrong.
If his conduct was criminal, he ought to be indicted and heard in
his defence. If simply improper, without criminal motive, the
court of which he is an officer, is the only jurisdiction that can
examine this, and correct it If different courts undertake to


[Hoffman v. Coster.]

investigate it, they might come to different conclusions. Some
might condemn it, while the court itself approved it, and adhered
to it as their record. In Br. Ab. Record, pi. 45, 18 Vin. Ab.
173, there is this case : " Record of outlawry of divers persons was
certified in the Exchequer, among whom one was certified outlawed,
and was not outlawed, and that his goods were in the hands of J.
N. And upon process made against him, he came and said he was
not outlawed ; and parcel of the writ came by writ of the chancery
out of B. R. into the Exchequer ; *and Green, Justice of r*Aja
B. R., came into the Exchequer, and said he was not out- '
lawed, but that it was misprision of the clerk. Skipwith said,
though all the justices would record the contrary, they shall not be
credited when we have the record that he is outlawed. Query,
what remedy is for the party ? It seems it is by writ of error,
inasmuch as there is no original against him, but only record of out-
lawry without original." Now here one of the judges of the court
of King's Bench, moved no doubt by the injustice of the thing,
went into the Exchequer to remonstrate, and to testify that the
record before them from the Court of King's Bench was not true ;
that it was a misprision (or criminal offence, 4 Bl. Com. 119), of
the clerk. But the judges of the Exchequer would not listen to the
evidence of the judges of the King's Bench, because it was irregu-
lar and illegal, inasmuch as it went to falsify the record, which the
clerk had estreated into the Exchequer. We are therefore of opinion
that the contents of the deposition of Boyer were not legal evidence
in the present suit.

There was another point in this case which seemed at first to
require an opinion, and that was, whether Charles Snowden was
not to be deemed a trustee for Nathaniel R. Snowden. On con-
sideration, however, we are of opinion that it does not fairly arise
in the case as it appeared in the Court of Common Pleas, and is
now before us, owing to its being placed by the plaintiff through
out on the other ground, namely, that the deed was to Nathaniel
R. Snowden, and the legal title in him. If the plaintiff had
sought to make Nathaniel cestui que trust, he was bound to pro-
duce the deed to Charles Snowden. or prove its contents, if lost,
or not produced on notice. The acknowledgment was not evi-
dence, without the preliminary proof ; and the plaintiff's case is now
destitute of any legitimate evidence of the deed to Charles Snow-
den, considered in this point of view.

Judgment affirmed.

Cited by Counsel, 4 Whart. 38, 503 ; 6 Id. 346 ; 10 Watts 120 ; 2 W. & S.
277, 316; 3 Burr 129; 6 Id. 55; 8 Id. 162; 7 Harris 278 ; 4 Wright 154;
8 Id. 215 ; 8 P. F. Smith 497 : 1 Parsons 38. || 12 Smith 59 ; 24 Id. 283 ; 1
Norris 70 ; s. c. 2 W. N. C. 681 ; 2 Outerbridge 455 ; s. c. 11 W. N. C. 397;
12 Id. 303.||

Cited by the Court, 10 Watts 23 ; 7 W. & S. 470 ; 7 Harris 110 ; 3 Casey


476 SUPREME COURT [March Term,

[Hoffman r. Coster.]

427. flAe to the jurisdiction to examine a record made by the prothonotary,
I la-. -111:111 r. Salisberry, 24 Smith 286 ; as to the inadnaissibleness of parol to
contradict the record of an acknowledgment by the sheriff, Duff v. Wynkoop,
24 Id. 305 ||

Doubted, 8 Watts 135; but affirmed, 8 Id. 167; see also 10 Id. 475; 5
Barr 218 ; 1 Harris 36H. || Thome v. Ins. Co., 30 Smith 15.||

Cited by the Court below, 13 N orris 182, as to a court's reasons not being
inquirable into collaterally.

*477] *[PHILADILPHIA, APRIL 19, 1837.]

The Schuylkill Navigation Co. against Moore.

The plaintiffs, an incorporated company, authorized to used the water of
the river Schuylkill for navigation, and to grant out the water-power for
manufacturing purposes, conveyed to the defendant a certain lot of ground,
Ac., " together with the privilege of drawing from the canal, through the
forebay or tunnel, from time to time, and at all times hereafter, so much
water as can pass through two metallic apertures, one of 50 square inches,
and the other of 250 square inches, respectively, under a head of three feet,
to be measured from the middle of each of the said apertures respectively
to the face of the water of the said canal, &c. : To have and hold the said
described lot, Ac., and the right of drawing from the said canal the quantity
of 300 square inches of water in manner aforesaid, under a three feet head :
Yielding and paying a certain annual rent per inch of water." The defend-
ant applied to the aperture a certain conical tube, called an ajutage, by which
the flow of water was enlarged. It appeared that this invention was known
to persons conversant with hydraulics, and to some of the officers of the
Navigation Company before the making of the contract. Held, that the true
construction of the contract was, that the water was to be delivered in the
ordinary way, and that the defendant had no right to increase the flow by
means of an ajutage.

THE president, managers and company of the Schuylkill Navi-
gation Company brought an action on the case in this court against
John Moore, to recover damages for drawing a greater quantity of
water from their canal than, it was alleged by them, he was entitled
to under his grant.

The plaintiffs were incorporated by the act of 8th March 1815,
with authority to use the water of the river Schuylkill for the pur-
poses of navigation, and to grant out the water-pow-er for manu-
facturing purposes. Under this authority numerous grants were

By indenture of bargain and sale, dated the 1st of February
1830, between the Schuylkill Navigation Company and John
Moore, reciting that a certain Mark Richards had agreed with the
company on the 3d of November 1827, for the purchase of a lot
of ground thereinafter described at forty dollars per acre, and
on the 25th of January 1828, for the purchase of 100 inches of
water-power at Flat-rock canal, at the annual rent of six dollars

1837.] OF PENN? VANIA. 477

[Sehuylkill Nav '. . Moore.]

per inch, to commence that day and payable half-yearly ; and on
the 13th of March 1828, for the purchase of the further quan-
tity of 200 inches of water-power at Flat-rock canal at six dollars
per inch ; the rent of 100 inches to commence 1st of March 1829,
and 100 inches 1st of June 1829 ; which water-power was agreed
to be granted to the *said Mark Richards on the usual con- r* <-r
ditions and subject to the former grants of water-power : *
And reciting further that the said Mark Richards and wife, on the
4th of January 1830, granted to the said John Moore, the lot and
the aforesaid water-power of 300 inches of water, to be drawn
from the Flat-rock canal for the use of mills or any mill- work
except for making gunpowder or for sawing timber logs or lumber,
together with the appurtenances : And that the said Mark Richards
did therein desire and request the Sehuylkill Navigation Company
to make the conveyance and grant of the said lot and water-power
on the terms and conditions of their sale to him the whole rent
1840 dollars per annum being paid up to the 1st of December
1829: The plaintiffs then conveyed the lot; describing it by
courses and distances, &c., proceeding as follows : " Together with
the right and privilege of keeping the passage now cut from the
said canal within the said lines of the above-described lot continued
to the said canal through the western bank of said canal, which
bank is 20 feet wide and is intended to be left open and used as
a towing path and road along the western bank of the said canal ;
and of the railway now made through the land of the said com-
pany from the said passage so cut as aforesaid to the said public
road, and thence across the said public road, as far as lies in the
power of the said company as the owners of the soil of the said
road to grant the right of keeping the said race-way across the said
road to the above described lot of ground ; and of placing in the
passage or opening so cut as aforesaid by him within the said
limits, a forebay or tunnel of good and substantial construction,
whereby the water may be drawn from the said canal to the above
described lot of ground for the use of mills or any other water
works now erected, or hereafter to be erected on the said lot, except
for making gunpowder or for sawing any timber logs or lumber,
which are hereby absolutely prohibited ; which forebay or tunnel
shall have sliding gates placed therein so that the whole water may
be, as occasion requires, entirely stopped from entering into it, and
the same shall be so arched over or covered as to prevent it imped-
ing in any degree the said road or towing path : And together
with the privilege of drawing from the said canal through the said
forebay or tunnel from time to time and at all times hereafter for-
ever, so much water as can pass through two metallic apertures, one
of fifty square inches and the other of 250 square inches respect-
ively, under a head of three feet, to be measured from the middle
2 WHARTON 31 481

478 SUPREME COURT [Hard Term,

[Schuylkill Nay. Co. c. Mcore.J

of each of the said apertures, respectively to the face of the water
of the said canal opposite to the above described lot of ground,
when the same is as near as may be on a level with the late top
before the same was recently changed and raised, of the present
great dam erected by the said company across the said river at the
head of the said canal, together with the privilege of building a
*i-q-| bridge across the said canal," &c. *" To have and to
J hold the said described lot of ground, hereditaments and
premises and the right of drawing from the said canal the quantity
of 300 square inches of water in manner aforesaid under a three
feet head, with the appurtenances and privileges hereinbefore and
hereinafter mentioned, under and subject to all the restrictions and
limitations in these presents mentioned and contained." Yielding
and paying the said rent, &c. The deed contained a covenant by
Moore to pay the taxes and the rent erect and support and main-
tain the forebay and tunnel and keep in repair the side banks of
the canal not to encumber the road and to erect at his own
expense and forever support in good order the two metallic aper-
tures, one of 50 square inches and the other of 250 square inches,
through which the said 300 inches of water under three feet head
were to pass and to prevent all leakages, &c. : and it was provided
that it should be lawful for the grantors and their agents to enter
on the premises for the purpose of examining the fixtures and the
placing of such metallic apertures and ascertaining their size and
whether any leaks existed in the premises which might occasion
more water to be drawn from the said canal than was thereby
granted ; and if they found any such defects or leaks or on due
notice the same were not forthwith removed and remedied, it should
be lawful to shut down the sliding gates until such defects and leaks
should be removed and remedied without any abatement of rent.
Or it should be lawful for the company to make repairs at their
expense and distrain for the same as rent. The grantee covenanted
to open the gate during heavy rains to prevent overflowing ; that
he would not manufacture gunpowder, or saw timber under a for-
feiture of the premises and stoppage of water and re-entry. In
case of any break of the dam, the company was to repair within
30 days, or the rent should be suspended, but no other damage.
If the water of the dam in the opinion of the company should be
insufficient to furnish the quantity necessary for navigation and to
answer their sales, they retained the right to enter on the premises,
and withhold the 200 inches of water from passing through the
metallic aperture of 250 square inches so long and until the water
which might be furnished by the great dam, should in the opinion
of the company be sufficient to answer the purposes of the navi-

Previously to this conveyance to the defendant, Mark Richards,


[Schuylkill Nav. Co. . Moore.]

the grantee, had made certain alterations in or additions to the
aperture hereafter described, which increased the flow of water into
the forebay : and in a bond taken by him from the defendant, it
was stipulated that any action which might be brought against him
by the Schuylkill Navigation Company, should be defended by
Richards ; and if it should be decided that the defendant had no
*right to draw the water in the manner then practised, the r*4on
obligation should become void, &c.

On the trial before Gibson, C. J., at a Court of Nisi Prius, held
in Philadelphia, the plaintiffs after reading the deed to the defend-
ant, introduced the following testimony :

Frederick Erdman. " We were directed to examine the mills
by the company. This memorandum was made by Mr. Gill, from
minutes he made on the ground ; I don't recollect the date ; we
were directed and made the observations at the time when the mills
would best permit ; we examined the mills from one end to the
other, not exactly in regular rotation, but as might suit the mills ;
at the north mill was a rectangular aperture longer than it was
high ; I don't recollect the dimensions ; I have no memorandum
of the square one, more than the report made at the time. As to
the other mill the south one has what they called a conical tube ;
the aperture was circular ; it opened into the forebay ; the conical
tube was inserted into the forebay ; the funnel part was all in the
forebay ; it projected some distance inside, and the tube some dis-
tance outside ; the length of the tube was about eight feet ; I
should suppose about one-eighth of it inside the forebay, and about
seven-eighths outside ; I don't know that the dimension was
correctly taken ; it is merely from memory. I was present at the
experiments that were made on the 6th of November 1830, on the
flow of water through an aperture and through a tube, something
like that exhibited ; several persons were present ; I was requested
by Mr. Jos. S. Lewis to prepare an iron plate to suit the smallest
diameter of the conical tube, which, on measurement, I found to be
seven and twenty-five one-hundredth inches ; likewise a rectan-
gular plate of twenty-five inches long and two inches high ; both
of which plates were inserted into the forebay that the conical tube
was inserted in. As regards the time, I think this was done the
day before the experiment was made, on the 6th ; the water was
drawn through the conical tube, I think first ; if my memory serves
me right, there was a nail placed exactly one foot below the sur-
face of the water ; the forebay was then filled, and the gate drawn,
to permit the water to pass through the conical tube ; the water
was exhausted ; drawn down to the nail ; that is, one foot, in one
minute and twenty-eight seconds ; the forebay was filled again, and
the water let through the plain circular plate ; the time occupied
in drawing down the same distance, was four minutes and eighteen


480 SUPREME COURT [March Term,

| Srlmylkill Nay. Co. r. Moore.]

seconds ; the forebay was filled again, and drawn through the rec-
tangular aperture of twenty-five inches long and two inches high ;

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 54 of 68)