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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 6) online

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and goods sold and delivered by him to Hartley.

At the trial the plaintiff's counsel having opened that he would
show that Vansant to whom the goods and work were charged, was
only the agent of Hartley, produced a book which the plaintiff
stated upon oath was his book of original entries. The plaintiff'
testified as follows: " part of the entries were made by myself:
some were made the first, and some the second day after I had done
the work ; not later than the second day in the evening ;" and on
cross-examination by the defendant's counsel, he said, u These
entries were part taken from my head, and part from a slate ; I
can't tell which from my head and which from the slate ; I made
the entries on the slate myself, and in the book too." The defend-
ant's counsel objected to the entries being read to the jury, but the
court admitted them ; and they were read as follows :


" John Vansant,

1833, October 26th, Laying broad axe, 87J

1834, March 29th, Ironing York Wagon, - - 28.00

*To the admission of these entries by the judge, Hart-
ley's counsel excepted. ,

The counsel of Brookes then offered one Joseph Tillotson, a
witness, to prove that he (the witness), made certain entries in
another book alleged to be the plaintiff's book of original entries,
of work alleged to have been done, and goods sold and delivered by
Brooks for and to Hartley ; and Tillotson being sworn, testified as
follows:

" I know the book : these entries are in my handwriting, copied
off Mr. Brookes's slate, on the evening of the day they were made,
or the next day, or in the course of the next day, sometimes the
same night." Being cross-examined by the defendant's counsel, he
eaid, "I was boarding with him at the time, and did it to help him
along with his work : the slate he kept in his shop was my voucher,
I copied it from the slate as near as I could ; I got my information
from the slate." Being re-examined, he said, " I am sure it was his
(Brookes's) handwriting ; he was not always by when I made the
entries." The counsel for the defendant thereupon objected to the
entries so made by the witness being read to the jury, the judge
admitted them ; and they were read to the jury ; and the defendant's
counsel excepted.

The errors assigned were :

1. That the court below erred in permitting the entries made by
the plaintiff below in his book, from the slate, and set forth in



190 SUPREME COURT [Dec. Term,

[Hartley v. Brookes.]

the first bill of exceptions, to be read to the jury as evidence ; the
entries not being the original entries.

2. That the court erred in permitting the entries set forth in the
second bill of exceptions to be read to the jury.

Mr. Ingraham, for the plaintiff in error, cited Ogden v. Miller, 1
P. A. Browne 147 ; Ingraham v. Brockius, 9 S. & R. 285 ; Kessler
v. McConachy, 1 Rawle 441 ; Jones v. Long, 3 Watts 326 ; For-
syth v. Norcross, 5 Id. 432; McCoy v. Lightner, 2 Id. 350;
Budden v. Petriken, 5 Id. 286.

Mr. Oakford, contra, cited Patton v. Ryan, 4 Rawle 408.

PER CURIAM. There is nothing to distinguish this case from
others in which such entries as these have been received. Entries
transferred from a card to the book on the following day, were
admitted in Patton u. Ryan, 4 Rawle 408 ; and the like, in substance,
was done in Ingraham v. Bockius, 9 S. & R. 285. In Kessler v.
McConachy, 1 Rawle 441, no more was ruled than that the transfer
was too late at the expiration of nearly two weeks. The objection
that it was made in this instance by a third person has no greater
force. The entries might have been made originally by a clerk ;
and whether by the verbal instructions or written memoranda
*1 Q1 1 *^ ^ e P" nc ^P a ^ can surely make no difference they would
-* be as much the entries of the principal in the one case as in
the other.

Judgment affirmed.

Cited by counsel, 11 Harris 159 ; 2 Casey 386.

See, also, 3 Grant 233 ; 12 Wright 535 ; 2 Miles 268.

|| Entries made by master from memoranda made by servant, in a pass-
book, o^ delivery, are evidence. Hoover v. Gehr, 12 Smith 137. |j



[PHILADELPHIA, FEBRUARY 1, 1841.]

Fuchs's Case.



An appeal does not lie from a decree of a Court of Common Pleas upoi
the settlement of the accounts of a committee of a lunatic.

THIS was an appeal from a decree of the Court of Common Plea
of Northampton County in the matter of the accounts of John Fuchs
committee of the estate of Conrad Fuchs, a lunatic.

In 1822, John Fuchs and Adam Sandt were appointed the com-
mittee of the lunatic.



1840.] OF PENNSYLVANIA. 191

[Fuchs's Case.]

On the 18th of March 1837, John Fuchs filed an account in the
Court of Common Pleas, which was referred to auditors who made
a report on the 19th of April 1839. Exceptions were filed by the
committee to this account ; and on the 23d of August 1839, the
Court of Common Pleas made a decree amending the account
reported by the auditors, and directing the prothjnotary to state an
account accordingly.

From this decree an appeal was taken.

Mr. Ihrie, for the committee, now moved to dismiss the appeal
on the ground that this court had no jurisdiction.

Mr. Maxwell and Mr. Porter, contra.

PER CURIAM. An appeal not expressly or necessarily given,
cannot *be entertained; and certainly none is expressly r^-jon
given in this instance, for the first section of the act of the L
16th of May 1836, has regard to removals only by common -law
process for correction of errors and irregularities, and not to
removals by an appeal, which lays open the cause to revision on the
merits, and which has been borrowed from the civil law. It is
argued, however, that as the Common Pleas is put upon a footing
in regard to a lunatic's committee, with the Orphans' Court in
regard to a guardian, there is consequently the same appeal from
its judgment or decree in regard to their accounts. But the 25th
paragraph of the 23d section of the act of the 13th April 1836,
from which the inference is attempted, has regard expressly to no
more than the "control, removal, dismissal, and discharge" of such
committees, and not to the settlement of their accounts. It is clear,
therefore, that the decree of the Common Pleas is conclusive.

Appeal quashed.

Cited by counsel, 6 Harris 436.

|| Quaere, as to whether the refusal of the Common Pleas to remove the
committee of a lunatic is reviewable in the Supreme Court. Dean's Appeal,
9 Norris 106. In Frankenfield's Appeal, 11 W. N. C. 373, the Supreme
Court entertained an appeal from a decree of the Common Pleas, confirming
the report of an auditor appointed to audit the account of a committee of a
lunatic. II



^PHILADELPHIA, FEBRUARY 1, 1841.] [*193

Lewis and Others against Carstairs.



IN ERROR.



1. E. S. B., who was the owner of a lot of ground on the west side of
Eighth street, in the city of Philadelphia, and also the owner of a lot on the



192 SUPREME COURT {Dec. Term,

[Lewis v. Carstairs.]

south side of Chestnut street, the rear of which lot bounded the first lot on
the west, conveyed the lot on Eighth street to J. S., "bounded on the west
by other ground of E. S. B. (viz., the Chestnut street lot), and on the
south by an alley of the width of two feet six inches, intended to be left
open by the said E. S. B. ; together with the free use and privilege of the
said alley as a passage, in common with the said E. S. B. and his heirs, and
those to whom he may likewise grant the same privilege ;" together with the
privilege of building on the said alley, &c. Four months after the date of
this deed, E. S. B. made an agreement with T. C., who was the owner of a
lot adjoining the Eighth street lot on the south, by which, after reciting that
E. S. B. had agreed to open an alley two feet six inches wide, running west
82 feet six inches, &c., the privilege of which, in common with the said E.
S. B., his heirs and assigns, was intended to be granted to J. S., it was agreed
that T. C. should leave out forever on the south of the alley a strip of ground
one foot in front on Eighth street, by 82 feet six inches in depth westward,
so as to widen the alley to three feet six iches, for the common use and
benefit of the said parties, their heirs and assigns, &c. Afterwards E. S. B.
conveyed the lots on Chestnut street to G. M., together with the free and
common use and privilege of the said three and a-half feet wide alley, and of
a water-course over and along the same, and the right of soil of the northern-
most part of the alley, subject to the privileges granted by the agreement to
the said T. C. and J. S., their heirs and assigns, &c. G. M. was at the time
of this conveyance the owner of other lots of ground on Chestnut street
adjoining the lots so conveyed to him by E. S. B. on the west; and opened
an alley in the rear of them communicating with the said alley leading into
Eighth street : Held, that the right of way, &c., in the said alley in common
with J. S. and T. C., and their heirs, &c., was confined to the owners and
occupiers of the lots on Chestnut street, originally owned by E. S. B.,
and adjacent to the alley, and could not be extended by G. M. to the owners
and occupiers of his lots adjoining on the west. 1

2. Where there is evidence of an uninterrupted use of an alley for a pas-
sage and water-course, for a period less than twenty years, evidence of con-
tribution by the persons so using it. to the expenses of laying and repairing
the pavement, and of laying water-pipes under the surface, 2 is proper to be
submitted to the jury, as bearing upon the fact of the presumption of a
grant.

3. A party who might otherwise be entitled to the exclusive enjoyment of
an easement, may be equitably estopped from contesting the right of others
to use it, if by allowing a common enjoyment of it for a period less than
twenty years, and by positive acts of acquiescence on his part be encourages
an innocent purchaser to pay his money for the purchase of property to
which such easement appears to be appurtenant. 8

ERROR to the District Court for the City and County of Phila-
delphia, to remove the record of an action of trespass quare clau-

|| ' The court considered the question as to whether E. S. B.'s power,
(arising from the reservation in his deed to J. S.) to grant the use of the
alley was in gross or appurtenant ; and while leaning strongly to the latter
view, were also of opinion that as a matter of fact, E. S. B. conveyed the
easement to G. M., as appurtenant to the lot conveyed to him ; and of course
G. M. could not append it to other ground. And further, that the agreement
between E. S. B. and T. C. was an entire execution of any such power in
gross in E. S. B.||

|| J But semble, laying water-pipes under the surface would not be evidence
of a grant of passage and superficial drainage. See infra *208, *209.||

|| ' And this, it seems, is a question of lavr. Lewis t>. Carstairs, 5 W. & S.
205.||



1840.] OF PENNSYLVANIA. 193

[Lewis r. Carstairs.]

sum, *fregit, c., brought by James Carstairs against Law- r*-ini
rence Lewis and William P. Blight, executors of the will of
George Blight, deceased, Sarah Care, Plannah Care, Martha Care,
William VVharton, and P. E. Fontanges.

The action was brought to try the right of the defendants to use
as a water-course, passage, or otherwise a certain alley laid down
in the following diagram.

George Street.



W

oi5'



GO



Carstairs.



10



G. Blight .



The alley.



i i



Sims.



66



O

o



66



7 Dec. 1815,
Burd to
Murray.



00



33



26th Sept. 1817,
Murray to Biddle.











20



20



O

20



to

Cn



CD
5*



Chestnut Street.



6 WHARTON 13



194 SUPREME COURT [Dec. Term,

[Lewis v. Carstairs.]

The controversy rose out of the following circumstances :
*1Q^1 *^ n ^ e 10th of January 1809, Edward Shippen Burd,
being seised in fee of a lot of ground on the west side of 8th
street, at a distance of 100 feet south from the south side of Chestnut
street, containing in front 22 feet, and in depth 99 feet ; and also
of a lot on the south side of Chestnut street, at the distance of 66
feet west of 8th street, containing in front 33 feet, and in depth
100 feet, executed a conveyance to John Sims in fee, for a lot
described as follows :

" All that lot or piece of ground situate on the west of Delaware
Eighth street, between Walnut and Chestnut streets, in the said
city, and composed of two contiguous lots, that is to say, one thereof
commencing at the distance of ninety feet one inch and a-half south-
ward from the said Chestnut street, situate on the west side of the
said Eighth street, and containing in front or breadth, on the said
Eighth street, nine feet ten inches and half an inch, and extending
in length or depth east and west, thirty- three feet ; bounded on the
north by other ground of the said Edward Shippen Burd, on the
east by the said Eighth street, on the south by another lot contiguous
thereto, and hereafter described and granted, and on the west by
ground of the said John Sims. Also, the other contiguous lot
above mentioned, situate on the west side of the said Eighth street,
and commencing at the distance of one hundred feet southward
from Chestnut street, and containing in front or breadth on the
said Eighth street, north and south, nineteen feet six inches, and
extending in length or depth east and west, sixty-six feet ; bounded
on the north partly by ground of Edward Bonsall, partly by ground
of the said John Sims, and partly by the other lot contiguous thereto,
and hereby granted, on the east by Eighth street aforesaid, on the
west by other ground of the said Edward Shippen Burd, and on
the south by an alley of the width of two feet six inches, intended
to be left open by the said Edward Shippen Burd : together with
the free use and privilege of the said alley, as a passage in common
with the said Edward Shippen Burd and his heirs, and those to
whom he may likewise grant the same privilege ; together with the
privilege of building over the said alley, leaving at least nine feet
headway in the clear ; together with the appurtenances,'' &c. ;
reserving an annual ground-rent in fee of one hundred and forty
dollars, with the usual covenants and clauses; and at the conclusion
of the deed the grantee, Sims, covenanted that the buildings to be
erected upon the lot should be in such a manner as to leave the
alley of the full width of 2 feet 6 inches in the clear.

This deed was recorded on the 17th of March 1809.

On the 20th of May 1809, an agreement was entered into between
E. S. Burd and Thomas Carstairs, who was the owner of the lot of
ground on Eighth street adjoining that of Mr. Burd on the south,



1340.] OF PENNSYLVANIA. 195

[Lewis v. Carstairs.]

reciting that, " Whereas, and inasmuch as the said Edward Ship-
pen *Burd hath agreed to open and lay out an alley, of the r*iqfl
width of two feet six inches, running from Delaware *
Eighth street, in the said city, westward to the depth of eighty-two
feet six inches, from the west side of the said Eighth street,
and commencing at the distance of one hundred and nineteen
feet six inches, from the south side of Chestnut street, and running
parallel with the said Chestnut street, to the depth aforesaid ;
situate between the said Chestnut street and George street the
privilege whereof in common with the said Edward Shippen Burd,
his heirs and assigns, either has been or is intended to be granted to
John Sims, of the said city, painter, together with the privilege of
building over the said alley, to the depth of forty-two feet from
the west side of Eighth street aforesaid. Now it is hereby agreed
by and between the said parties, that in consideration of the said
Edward Shippen Burd's permitting the said Thomas Carstairs to
use the said alley as a passage and water-course, in common with
the said E. S. Burd and John Sims, and the heirs and assigns of
the said E. S. Burd, he, the said Thomas Carstairs, and his heirs
will, and he doth hereby in consideration of the premises, and of
one dollar to him in hand paid by the said E. S. Burd, grant, cove-
nant, agree to and with him, his heirs and assigns, by these presents,
that he. the said Thomas, will open and leave out forever, adjoining
the said alley, on the south, a strip of ground one foot in front on
the said Eighth street, and extending eighty-two feet six inches in
depth, westward, in the clear ; so as to widen the said alley from
two feet six inches, to three feet six inches, in the clear, of the
depth aforesaid ; for the common use and benefit of the said par-
ties, to these presents, their heirs and assigns forever. And the
said Thomas Carstairs in consideration aforesaid, doth hereby grant
unto the said E. S. Burd, his heirs and assigns, the right and priv-
ilege of building over and under the said one foot of ground, front-
ing upon Eighth street, as aforesaid, to the depth of forty-two feet,
westward from Eighth street, to the end that the said E. S. Burd
may grant the same privilege of building over and under the same
one foot of ground to the said John Sims in fee."

On the 7th of December, 1815, E. S. Burd, by indenture of
that date, conveyed to George Murray, two messuages and lots
described as follows :

" Two certain contiguous three-story brick messuages or tene-
ments and lot or piece of ground thereunto belonging, situate on
the south side of Chestnut street, between Eighth and Ninth
streets from Delaware, in the city of Philadelphia, containing in
breadth east and west on the said Chestnut street, thirty-three feet,
and extending in depth southward on the east side thereof, one
hundred and nineteen feet six inches, to a three feet and a half



196 SUPREME COURT [Dec. Term,

[Lewis v. Carstairs.]

wide alley, leading into said Eighth street ; thence extending along
the said alley westward parallel with the said Chestnut street, six-
*1Q71 teen ^ eet 8 * x i ncnes *thence extending southward parallel
' with the said eighth street, two feet six inches along the
western boundary of the said northernmost part of the said alley :
thence westward parallel with the said Chestnut street, sixteen
feet six inches: thence northward one hundred and twenty-two feet
to Chestnut street; thence eastward along the south side of Chest-
nut, thirty-three feet to the place of beginning : bounded westward
by other ground, now of the said George Murray, northward by
the said Chestnut Street, eastward partly by a messuage and lot of
ground now or late' of Edward Bonsall, partly b} T ground now or
late of John Sims, and partly by part of the end of the said three
feet and a half wide alley, and southward partly by the said alley,
and partly by ground of Thomas Carstairs."

The deed then recited the conveyance of this lot to E. S. Burd,
and proceeded :

" And the said Edward Shippen Burd left open the south-east-
ernmost part of the aforesaid lot fronting on Eighth street, of the
breadth of two feet six inches on the said Eighth street, by eighty-
two feet six inches in depth, for an alley ; and in and by a certain
instrument of writing bearing date the twentieth day of May, one
thousand eight hundred and nine, recorded in deed book J. C., No.
3, p. 216, &c., did agree to permit the said Thomas Carstairs to
use the said alley as a passage-way and water-course; and the said
Thomas Carstairs did therein covenant and grant to and wi'th the
said Edward Shippen Burd, his heirs and assigns, to leave open
forever adjoining the said alley on the south side thereof, a strip of
ground one foot in front on the said Eighth street, and extending
eighty-two feet six inches in depth westward, in the clear, so as to
widen the said alley to three feet six inches in the clear, for the
benefit of the said Edward Shippen Burd and Thomas Carstairs,
their heirs and assigns forever ; and also granting to the said Ed-
ward Shippen Burd his heirs and assigns, the right and privilege
of building over and under the said one foot of ground fronting
upon Eighth street, aforesaid, to the depth of forty-two feet ;
which right and privilege of building over and under the said one
foot of ground to the depth of forty-two feet from Eighth street as
aforesaid, leaving at least nine feet headway in the clear, together
with the privilege of building over and under the northernmost
part of the said alley, that is to say two feet six inches in breadth,
to the depth of forty-two feet from Eighth street aforesaid, leaving
at least nine feet headway in the clear, together with the common
use and privilege of the said three feet and a half wide alley lead-
ing into said Eighth street as a passage-way and water-course, the
said Edward Shippen Burd hath granted with the remainder of the



1840.]- OF PENNSYLVANIA. 197

[Lewis . Carstairs.]

said Eighth street lot adjoining the said alley to the northward unto
John Sims, his heirs and assigns, TOGETHER with the free and
common use and privilege of the said three feet and a half wide
alley, and of a water-course over and along the *same, and r*ina
the right of soil of the northernmost part of the said alley, '
left open by the said Edward Shippen Burd as aforesaid ; subject,
however, to the privileges granted therein to the said Thomas
Carstairs and John Sims, their heirs and assigns respectively ; and
together with the ways, waters, water-courses, and appurtenances
whatsoever thereunto belonging or in any wise appertaining," &c.

At the date of this conveyance to him, George Murray was seised
of three messuages and lots of ground, situate on the south side of
Chestnut street, adjoining to the west the lots conveyed to him by
Burd, and containing together in front on Chestnut street, 60 feec,
and in depth 148 feet, to a 20 feet court, communicating with an
alley leading into George street, and having a right of way through
the court and alley into George street.

At, or shortly after, the date of the conveyance to him from
Burd, Murray was also seised of three messuages and lots of ground,
situate on the north side of George street, immediately south of the
three messuages and lots on Chestnut street, and communicating
with the twenty feet wide court.

On the 26th of September 1817, George Murray conveyed to
Nicholas Biddle in fee the three messuages and lots on Chesnut
street, by the following description :

" Beginning at a point in the south line of Chestnut street, at
the distance of ninety-nine feet west, from the west side of Dela-
ware Eighth street, thence south by other ground of George Mur-
ray, intended to be conveyed this day to Nicholas Biddle, 118 feet
6 inches, to an alley 3 feet 6 inches wide leading east into Eighth
street, thence west along the north side of said alley 5 feet 9 inches
to a point, thence south along said alley, 5 feet 3 inches to a point,
where said alley is only three feet wide in the clear, thence west
along said alley 37 feet 9 inches to a point, thence south along the
west end of said alley parallel with Eighth street, 3 feet to the line
of other ground of said George Murray, thence west by the same,
16 feet 6 inches to the line of ground now or late of John Brown,
thence north by the same 126 feet 9 inches to Chestnut street,
thence along Chestnut street 60 feet to the place of beginning.
Together with the common use and privilege of the said alley and
of a water-course over and along the same at all times thereafter,
forever."

On the 22d of July 1821, Nicholas Biddle conveyed to James
Craig in fee the easternmost of the three messuages and lots so
conveyed to him by Murray, containing in front on Chestnut street
20 feet, and extending back to the said alley leading eastward into



198 SUPREME COURT [Dec. Term,

[Lewis v. Carstairs.]

Eighth street, which alley bounds it on the south. " Together
with the common use and privilege of the said alley and of a water-
course therein at all times hereafter forever."
*1991 *^ n l ^ e ^k of November 1822, Nicholas Biddle con-
' veyed to Nathan Shoemaker the messuage and lot next to
the west, containing 20 feet in front on Chestnut street, by 123 feet
deep to an alley where the same is 3 feet wide : bounded south by
the said alley : "Together with the common use and privilege of
said alley leading into Eighth street, and of a water-course therein
at all times forever."

On the 12th of January 1833, Nicholas Biddle conveyed to
Sarah Care the westernmost of the three messuages and lots, of the
same dimensions both as to breadth and depth, and with the same
use and privilege of the alley leading into Eighth street as a way



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