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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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[Frost v. Eoatch.J

a suit before him by Wm. B. Roatch against John Frost, as special
bail of or surety for one C. K. Frost.

In the original suit before the alderman, which was brought by
Wm. B. Roatch against C. K. Frost, a judgment was given for the
plaintiff in the sum of $41.85 ; and the following entry upon
the alderman's docket was signed by John Frost. " I become
special bail in $90."

A scire facias was issued upon this recognisance and judgment
given by the alderman against John Frost, upon which the defend-
ant appealed to the Common Pleas.

The defendant pleaded nul tiel record, and payment with leave,
&c.

On the 15th of February 1839, the court on inspection of the
record of the alderman, gave judgment for the plaintiff on the plea
of nul tiel record, and on the 27th of April 1839, the court gave
judgment on the plea of payment under what is called the four
term rule. 1

*3fifH * r -Fhe defendant took a writ of error, and assigned the
-* following errors :

1. The court erred in giving judgment for plaintiff below, on
the plea of nul tiel record.

2. The recognisance entered into before Alderman Binns, by
the plaintiff in error, on the first day of April 1837, and on which
judgment was rendered by the court below, is not such a recog-
nisance as is required by the act of assembly, and is null and void.

3. The judgment, entered in the court below on the 27th of
April 1839, under what is called the fourth term rule, is erroneous
and illegal.

Mr. Perkins, for the plaintiff in error.

The recognisance is bad in not stating what the special bail was
for ; whether for stay of execution, or for an appeal. Both are
spoken of in the act of March 20th 1810 (Purd. Dig. 626), as
special bail. Section 4, page 628, says the party appealing shall
be bound with surety in nature of special bail. Section 5, page
629, speaks of the special bail directed to be taken by the justice,
in case of an appeal, &c. Section 9, page 630, speaks of special
bail for stay of execution. The plaintiff treated this as special bail
for stay of execution ; but he might with the same propriety have
considered it as special bail for an appeal. No particular form is
contended for ; only that the short minute of the recognisance
shall show the sum in which the party becomes bound, and what
for, whether for an appeal or for stay of execution. Recognisances
in the following cases were held bad. King v. Culbertson, 10 S.

1 See ante, p. 166, Kuhn v. Kisterbock.



1841.] OF PENNSYLVANIA. 360

[Frost P. Roatch.]

& R. 325 ; Bolton v. Robinson, 13 Id. 193 ; Donaldson v. Cun-
ningham, Id. 243 ; Pier v. McKenney, 2 Watts 104. In Moore
v. McBride, 1 P. & W. 149 ; Burgess v. Jackson, 2 Id. 432, and in
Ingham t>. Tracy, 5 Watts 333, the condition was stated, or the
recognisance itself showed showed what it was for.

Mr. Bready, contra, was stopped.

The opinion of the court was delivered by

HUSTON, J. The second section of the act of the 20th March
1810, makes provision that in certain cases the constable may take
a bond from a defendant taken on a capias, for the appearance of
the defendant before the justice ; and prescribes that such defendant
may enter special bail before the justice, or the bail to the constable
may enter special bail ; and it provides for proceedings on the bail
bond ; but it would seem, we have nothing to do with this section,
*the suit is not on such bail bond. In many if not in most
cases in this state, no bail bond is given. That is a matter
where it occurs, between the plaintiff and the constable.

The third section provides for the cases in which the parties
appear before the justice; such was the case here. The parties
appeared, and the defendant put in his defence : an adjournment
from 20th of March to 1st of April 1837, when both parties
appeared, and judgment for plaintiff for $41.85. After the entry
of this judgment on the justice's docket, we find written, April 1st,
"I become special bail in $90. JOHN FROST, 128 Eighth st."

The first question is, was this an entry which bound John Frost,
as special bail ? We have had several cases as to what was a suffi-
cient entry by prothonotaries of special bail ; and some on what is
a sufficient recognisance of bail on an appeal from a justice. This
is not an entry of special bail before a prothonotary, nor of bail for
an appeal ; for in that stage of the cause no appeal was asked.

The cases cited, King v. Culbertson, 10 S. & R. 325, and
Bolton v. Robinson, 13 Id. 195, go to prove that where a justice
enters the recognisance at large, and inserts what the law does not
require, or omits what it does require, it will not be good ; but in
the last case an &c. added, would have made it good ; and see 5
Watts 333.

1 P. & W. 149, and 2 P. & W. 432, decide, that a short
entry on a docket (which it is shown was usual in all courts), was
sufficient; and that from it a formal recognisance might be and
always is made in a full record of the suit, or on a scire facias. I
understand the counsel that no objection was made on account that
a full recognisance was not written out, and signed by John Frost;
but the objection was of another kind. The second section directs



361 SUPREME COURT [March Term,

[Frost v. Roatch.]

as to special bail before the hearing. This was entered after the
judgment. The fourth section says, the party appellant shall
become bound with surety in the nature of special bail ; and the 5th
section gives the form and effect of such recognisance on appeal ;
and neither the form nor the effect are precisely the same as what
is known as a recognisance of special bail. But in this case there
was no party appellant, and of course no bail in nature of special
bail on appeal ; no appeal was asked or taken. The sixth section
also speaks of an appeal by a freeholder; but has no application to
this case.

The ninth section is, " In all cases where the defendant is a free-
holder, or enters special bail to the action, and the judgment shall
be for a sum above $5.33 and under $20, there shall be stay of
execution for three months ; and when the judgment shall be above
$20 and under $60, there shall be stay of execution for six
months," &c., &c.

Now, unless in order to reverse proceedings, we suppose some-
thing to have occurred, of which the docket gives no intimation,
*3fi21 *^ e * s P ec i a l bail here could only have been to the action,
J and for the purpose of obtaining the stay of execution.
After the six months had expired, a sci. fa. issued, and on a plea
of nul tiel record, the entry, " April 1, I become special bail in
90 dollars," signed "John Frost," was a good and sufficient minute
from which to draw up a formal recognisance, and supported the
sci. fa. stating such formal recognisance. As I understand it,
after judgment on the scire facias, the defendant John Frost
appealed, and on a hearing among other matters, pleaded nul tiel
record. The Common Pleas decided that the entry was sufficient,
and gave judgment for the plaintiff on that issue ; but there was
some other plea or pleas, issue or issues, not decided. There is a
rule of the Common Pleas as follows.

" It is ordered that no appeal from an alderman or justice of the
peace, be continued more than four terms, unless a legal reason be
assigned, or the cause not reached ; and if the cause be reached at
the fourth term, or at a subsequent term, (having been continued
at any former term, without legal ground by either party, or by
both parties, or by the court in their absence), and a legal reason
be not then assigned for putting off the trial, judgment of non pros.
shall be entered, in case the plaintiff be appellant : and in case the
defendant be appellant, judgment shall be entered against him, for
the sum for which the alderman or justice who decided the cause
had rendered judgment, with legal interest thereon ; provided, that
when there shall have been an award of arbitrators filed in this
court, upon such appeal, judgment of affirmance of such award
shall be entered, and when the award shall have been for a sum of



OF PENNSYLVANIA. 3G2

[Frost v. Roatch.]

money, the judgment shall be for that sum, together with the
interest thereon from the day of filing the award."

On this rule a judgment was entered, we must suppose on a state
of facts bringing the case within the rule ; and the third error
assigned is, that this judgment entered in pursuance of this rule, is
erroneous and illegal ; in other words, that the court had no power
to make such a rule. It was not denied that courts have power to
make rules for the regulation and order and despatch of business.
Instead of a formal argument against the power of the court, it was
rather intimated that some professional men had doubts, and the
decision of this court was wished. This court have no doubt of the
power to make such a rule, or of its propriety. For myself indivi-
dually, I would shorten the time from the fourth to the third term ;
and make the rule universal in all cases where a cause was on the
issue list, and either party asked a continuance and could show no
legal ground for such continuance. Without rules compelling par-
ties to proceed, causes would never be brought to a conclusion.
Either party must have the power to bring on the cause. An
appellate court, as the Common Pleas was in the case before us,
will often find the person against whom a judgment has been ren-
dered, and from which he has appealed, very averse to another
hearing; but *the court is bound to respect the rights of r*ofo
the other party. The rule in question applies to each party, ^
and applies with equal effect. A non pros, of the appellant is an
affirmance of judgment below; and there can be no reasonable
objection to the same rule being applied to the other party, and
affirming the judgment below, if he will not contest it.

Judgment affirmed.

Cited by counsel, 1 Jones 294; 11 Casey 276.

Cited by the court, 9 W. & S. 143.

See, also. 8 Barr 301 ; 2 Harris 159 ; 7 Id. 358 ; 10 Id. 35 ; IP. F. Smith
85. IJ A short entry of special bail for stay of execution in which no penalty
is stated is insufficient: Caldwell v. Brindle, 1 Jones 243.

As to the validity of such a rule of court, see ante *166.||



[PHILADELPHIA, APRIL 3. 1841.]

Bridge Over Smithfield Creek.

CERTIORARI.

1. There is nothing in the acts of assembly relating to bridges to prevent
the county commissioners from building new bridges over any stream ; pro-
vided that such bridges are approved of in the manner declared in the 35fh
section of the act of 1 3th of June 1836.

2. Where, therefore, the superstructure of a county bridge had been swept



363 SUPREME COURT [/lT/-t7t Term,

[Bridge over Smithfield Creek. J

away by a freshet, it was held that the county commissioners (though per-
haps bound to repair it) might erect a new bridge over the same stream at
another place ; and that an order of the Quarter Sessions for the appoint-
ment of viewers for such purpose was regular and proper, though there was
no application to vacate the former bridge.

3. Under the act of 13th June 1836, a report of viewers upon the subject
of a bridge must be made to the next term. When a report, therefore, was
made on the 3d of February 1841, upon an order made on the day preceding,
the proceedings were quashed.

4. Under the act of 13th June 1836, the Court of Quarter Sessions may
authorize the erection of a bridge over any river or stream, though a public
highway.

CERTIORARI to the Quarter Sessions of Monroe County, to re-
move the proceedings in the matter of the petitions for building
bridges over Smithfield creek, at the places where the road from
*qc,n Easton to *Milford, and the road from the Easton and Mil-
J ford road to Stroudsburg cross the said creek, in Smithfield
township, in the county of Monroe.

The facts were as follows :

A bridge was erected over Smithfield creek, where the public
road leading from Easton to Milford crosses the same, by the com-
missioners of Northampton county, in pursuance of the order and
decree of the Court of Quarter Sessions of that county, made at
April Sessions 1795; and was kept in repair by that county, up to
the time of the erection of Monroe county, (in the year 1836), and
by Monroe county up to the 8th of January 1841.

By the 7th section of the act of 15th March 1825, (Pamphlet
Laws, page 118), James Bell and Evan Thomas were authorized
to erect a bridge over Smithfield creek, near their mill, where the
road leading from Stroudsburg to Houser's, crosses the same,
(called in this certiorari the road from the Easton and Milford road
to Stroudsburg), "provided that the said bridge shall so be built as
not to injure or obstruct the navigation of the said creek; and
when completed shall be free from toll, and kept in good repair
forever, by the said township of Smithfield ;" and the said Bell
and Thomas were authorized to take and receive such subscriptions
as they might be able to procure, and collect such sums of money
as were already subscribed, and apply the same to the building of
the bridge.

By the act of 14th April 1827, (Pamphlet Laws 331), so much
of the act of 15th March 1826, "authorizing James Bell and
Evan Thomas, to build a bridge over Smithfield creek, in North-
ampton county, as compels the township of Smithfield ever after to
keep the said bridge in repair," was repealed. And it was provided
that "the said James Bell and Evan Thomas, be and they are
hereby authorized to receive a rate of toll which shall enable them
after paying all repairs and other necessary expenses, to divide six
per centum per annum, on the capital sum expended." The act



1841.J OF PENNSYLVANIA. 364

[Bridge over Smlthfield Creek.]

also required them to report the cost, &c., within two years, and
annually, if required, the tolls, &c., received, to the Court of Quar-
ter Sessions of Northampton county.

In pursuance of these laws, the said Bell and Thomas, in the
years 1827 and 1828, erected the bridge so authorized; which was
repaired from time to time, until the 8th of January 1841.

On the 8th of January 1841, there occurred a very great freshet,
which swept away the superstructure of the county bridge, at the
Easton and Milford road, and somewhat injured the southern abut-
ment. The same freshet also carried away the bridge of Messrs.
Bell and Thomas.

*At February Sessions, 1841, the Court of Quarter Ses- r*occ
sioiis of Monroe county, expressed an opinion that a view '
was necessary, and that the concurrence of the court, grand jury
and commissioners, was required for repairing the county bridges
which had been swept away by the freshet. On the 2d day of
February 1841, the following petitions were presented to the court :

" To the honorable the judges of the Court of Common Pleas of
the county of Monroe, now composing a Court of Quarter Sessions
of the Peace, in and for said county.

" The petition of the subscribers, inhabitants of the township of
Lower Smithfield, in said county, respectfully represents, That the
recent flood has taken away the two bridges across Smithfield creek,
where the public mail road from Easton to Stroudsburg crosses it,
and the other where the public road from Easton to Milford crosses
the same. That the bridges are very necessary, and that the expense
thereof would be too heavy and burthensome upon the inhabitants
of said township.

" Your petitioners represent also, that if one bridge was properly
located about equi-distant between the former two sites, and a road
laid out to be connected therewith, it would equally accommodate
the public, and save the expense of two bridges. Your petitioners
therefore pray your honors to appoint proper persons to view and
select a proper site for a bridge, agreebly to the act of assembly in
such case made and provided, and they will pray," &c., &c.

This petition was signed by Peter Korts, and nine others.

The other petition is as follows :

" To the honorable the judges of the Court of Common Pleas of
the county of Monroe, now holding a Court of Quarter Sessions
of the Peace, in and for said county.

u The petition of the subscribers, inhabitants of the township of
Lower Smithfield, and parts adjacent in said county, respectfully
represents, That a bridge is much wanted over Smithfield, otherwise
called Brodhead's creek, at the place where the great public high-
way leading from Easton to Milford, crosses the said creek, in
Lower Smithfield township, in said county ; and that the erection



365 SUPREME COURT [March Term,

[Bridge over Smithfield Creek.]

of such bridge will require more expense than it is reasonable the
said township should bear. Your petitioners therefore pray the
court to appoint proper persons to view the premises, and to take
such order on the subject as is required and directed by the act of
assembly, in such case made and provided. And they will pray,"
&c., &c.

This petition was signed by George Walter, and fifty-one others.

On the same day, viz., the 2d of February 1841, the following
order was made :

*-lfifil *"A-t a Court of Quarter Sessions of the Peace, of the
-" county of Monroe, held at Stroudsburg, in and for the said
county, on the 2d day of February A. D. 1841, before the judges
of the same court. Upon the petition of sundry of the inhabitants
of the township of Smithfield, in the said county, setting forth that
a bridge is much wanted over Brodhead's creek, at the place where
the public highway crosses the said creek, in the township of Smith-
field, in said county ; and that the erection of such bridge will
require more expense than it is reasonable the said township should
bear, and praying the court to appoint proper persons to view the
premises, and to take such order on the subject as is required and
directed by the act of assembly, in such case made and provided.
Whereupon, the court, on due consideration had of the premises,
do order and appoint James H. Stroud, Franklin Starbird, Thomas
J. Albright, Leonard Bartron, Abraham Youngkin and James Ely,
who, after being duly sworn or affirmed to perform the duties of
their appointment with impartiality and fidelity, are to view the
place proposed for said bridge, and if any five of them view the
same, and any four of the actual viewers agree that there is occa-
sion for such bridge, and that the erecting of the said bridge would
require more expense than it would be reasonable the said township
should bear, make report accordingly ; and the said viewers are
further authorized to examine the route of the road crossing the
creek over which the said bridge is prayed for ; and if in their
opinion a change or variation in the bed of the road would be an
improvement, and saving of expense in the erection of such bridge,
they are to make report thereof, and cause such variation as afore-
said, to be accurately surveyed, and a map or plot thereof to be
made, which shall accompany said report ; the report aforesaid, to
be made to the court now sitting, of Quarter Sessions, to be held
for the said county of Monroe, in which report they shall state that
they have been sworn or affirmed according to law."

On the 3d of February 1841, the following report was filed :

" To the honorable the judges within named, we the persons
appointed by the court to view the place for the proposed bridge,
in the within order mentioned, do report, That in pursuance of
the within order, after being severally sworn or affirmed, as within



1841.] OF PENNSYLVANIA. 366

[Bridge over Smithfield Creek.]

directed, we have viewed the place where the public highway
crosses Brodhead's creek, in the township of Smithfield, and
parts adjacent, and are of opinion that a bridge over the said
creek in the said township is indispensably necessary, and that
the expense of erecting such bridge would be more than it would
be reasonable the said township of Smithfield should bear. That
we have selected a site for said bridge, immediately at the upper
end of James Bell's saw-mill, on said creek. We further report,
that we have viewed, laid out, and do return for public use, the
following road, to be connected *with said bridge, to wit: r*Q7
Beginning at the public road on the northeast side of Brod- ^
head's creek, near the site of the old Smithfield's bridge ; thence
north forty-two and a-half degrees, west twenty-five perches through
lands belonging to Zimmerman ; thence north fifty-nine degrees,
west fourteen perches to a white oak ; thence north seventy-one and
a quarter degrees, west twenty-two perches to a red oak, partly
through Zimmerman's and James Bell's land ; thence north seventy-
seven degrees, west eleven perches to a large white oak ; thence
north seventy-nine degrees, west twelve perches to a maple ; thence
south eleven degrees, west thirteen perches across Brodhead's
creek, to the public road near the house of James Bell ; then be-
ginning at the said maple, thence north eighty and a half degrees
west ten perches ; thence south seventy-nine and a half degrees
west twenty-two perches to a hickory ; thence through land of
Joseph Houser, south sixty and a half degrees west twenty four
perches ; thence west twenty-two perches to a white oak, in the
public road leading to Stroudsburg a plot or draft of which is
thereunto annexed. We would also state that the recent freshet
took away two bridges on said creek, the one where the highway
from Easton to Milford crosses said creek, the other where the mail
road from Easton to Stroudsburg crosses the same ; and that the
site we herewith return as the most suitable place for the erection
of a bridge, is about equi-distant between the former two sites ; and
with the road we also herewith return as connected therewith, will
equally accommodate the public, and answer every purpose of two
bridges as before."

This report was signed by the six viewers named in the order.

This report was presented to the court, and approved on the
same day, viz., on the 3d of February 1841.

It was then sent up to the grand jury, and approved by them. '

This certiorari was taken on the 6th of February 1 841.

The following errors were assigned :

1. That the bridge over Smithfield creek, on the road from
Easton to Milford, being a county bridge, and so entered of record
at April Sessions 1795, the commissioners were bound to repair it
without any further proceedings by view, &c. And any view or
proceedings thereon, were unauthorized by law.



367 SUPREME COURT [March Term,

[Bridge over Sinithfield Creek.]

2. That but one order issued; whereas there are two distinct
petitions for bridges at different places.

3. That the order is made returnable at February Sessions 1841 ;
whereas it should have been made returnable to the next sessions
thereafter.

4. That the viewers have exceeded their authority in laying
*3fi8~l ou *' a * roa d fr m the Easton and Milford road, to the road

J leading from the Easton and Milford road to Stroudsburg,
on the north side of Brodhead's or Smithfield creek.

5. That the court had no right to appoint a view to report to
the same sessions, and to receive their report and act thereon
within two days from the presentation of the original petitions ;
the same being unauthorized by law, and affording no time to those
interested to make objection thereto.

6. That there was not time from the issuing of the order to the
return of the same, to give reasonable notice of the meeting of
the viewers, and of the intention to bring the proceedings before the
court and grand jury.

7. That Smithfild or Brodhead's creek being a public highway,
the court could not authorize the erection, nor could the commis-
sioners erect a bridge over the same, without a special law for the
purpose.

8. That the decree of the court approving the report, is contrary
to law.

Mr. Ihrie and Mr. Porter, argued for the appellants.
Mr. Mattery, contra.

The opinion of the court was delivered by

SERGEANT, J.

1. The first of these exceptions seems inapplicable to the facts
of the case. The bridge in question is a new one, to be built at
neither of the former sites, but about equi- distant from each. The
county commissioners might, perhaps, be bound to repair the former
county bridge, (though as to that we give no opinion), and yet they
might also, under the provisions of the act of assembly, with the
approbation of the court and grand jury, build as many new
bridges over the creek as should be found expedient. There is
nothing in the act of assembly that restrains the building of new



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 41 of 75)