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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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664 ; 4 Campbell 4 ; Newman v. Bradley, 1 Dall. 240 ; Farrell v.
McClea, Id. 392 ; 9 Peters, 692 ; 3 Atk. 48 ; Gresley Ch. Evid.
323, 324.

The opinion of the court was delivered by

ROGERS, J. As the parties to a suit are excluded from being


[Bowen v. De Lattre.]

witnesses, on account of their interest, declarations made by them
are evidence, and in some instances of the strongest kind. Of the
latter description, the case before us furnishes a striking example.
The suit is brought by the payee on two promissory notes against
the maker. The defendant pleads non-assumpsit, and on the trial
requires proof of the execution of the notes ; and the plaintiff not
having a witness at hand competent to prove the execution, offers
in evidence for that purpose the affidavit of defence filed under the
act of the 28th of March 1835, in which the defendant expressly
states that he gave the note sued upon, of which copies had been
filed in the cause. If the same admission had been made, either
verbally or in writing, it would have gone to the jury as competent
proof, without objection ; for the admissions of a party to the suit
against his interest, are always received in favor of the other side.
Nor is it material when or where the admission is made, nor in
what form or suit, or whether before or after the commencement of
the action, before arrest or after, or whether written or by parol.
The only inquiry on the question of competency is, whether it is
the confession or admission of the party really interested in this
suit? On this principle, an answer in chancery being an admission
of a party, the objection of res inter alios acta does not apply to
it, as it does to other legal proceedings ; and therefore it may be
given in evidence *in a suit at common law, by one who was r=M oo
not party to the suit in equity. Peake E. 55 ; 1 Hay w. 420 ; ^
Bui. N. P. 237. Analogous to this, a man's voluntary affidavit is
admissible against himself, with the restriction that if offered as an
affidavit, and not as a simple admission, when proof of the hand-
writing will suffice, it must be proved to be sworn. And when an
affidavit is made in the course of another cause, it is receivable as
evidence upon proof that such a cause was depending, and that it
was used by the party. Bui. N. P. 338. In Vandervoort v. Smith,
2 Baine's R. 155, it is decided, that the admission in a case merely
for argument, is evidence against the party making it. And in
Vickayr's Case, Gilb. E. 51, an action of covenant brought against
two, the affidavit of one of them was given in evidence as an
acknowledgment by both. And in Jenkins v. Harrow, 11 Johns.
334, the affidavits filed in the cause, or rather copies of them, were
admitted in evidence. And so far has the doctrine of admissions
gone, that in Faunce v. Gray, 21 Pick. 243, it was decided, that a
deposition which could not be received as a deposition, because
there was no notice, and because the deponent was a party to the
record, might be used as an admission. But it is contended that
the court erred in admitting the evidence ; 1st, because the affidavits
are compulsory, being filed under the provisions of the act of the
28th March 1835 ; and secondly, because the affidavits are pleas,
or are in the nature of pleas.

433 SUPREME COURT {March Term,

[Bowen v. De Lattre.J

The second section of the act of 1835, referred to, authorizes the
court to enter judgment by default at a certain time therein pre-
scribed, notwithstanding an appearance by attorney, unless the
defendant shall previously have filed an affidavit of defence, stating
therein the nature and character of the same. Whether the affidavit
be filed depends upon the defendant himself; but admitting it to be
in one sense compulsory, it is certainly not more so than an answer
in chancery, which may, as we have seen, be used as evidence
against the defendant, in an action brought by a plaintiff" who was
not a party to the proceedings in equity.

And as to the second objection. It is true, that where there are
several counts in the same declaration, or several distinct pleas, an
allegation in one count or plea, cannot be insisted on by an adver-
sary as an admission of a fact for a purpose distinct from the proof
of that count, or of the issue upon the plea ; for every issue is to
be distinctly tried : as for example, in trespass a plea of justification
does not supersede the necessity of proving the trespass, where the
general issue was pleaded. So the plaintiff cannot use one plea of
the defendant for the purpose of proving a fact, which the defendant
denies in another plea; nor can he use a notice of set-off as evidence
of the debt, on the issue of non assumpsit ; and this is all that is
decided in Harrington v. Morris, 5 Taunt. 228, and in Miller v.
Johnson, 2 Esp. 602, so much relied on in the argument. The
reason of the latter decision is, that the particular of set-off is con-
*434T sidered *as incorporated with the notice of set-off, which is
* in the nature of a plea, and therefore a plaintiff cannot
make use of a notice of set-off as evidence of the debt, under the
plea of non-assumpsit, nor can he use a particular of set-off' for that
purpose, for it is incorporated with the notice. 5 Taunt. 228 ; 1
Marsh. 33. In Massachusetts, it is decided that if the defendant
in an action of slander, plead the general issue, and also specially
in justification that the words alleged to be spoken were true, the
special plea may be relied on by the plaintiff on the trial of the
general issue, as proof that the words were spoken, and he need
not offer any other proof of the speaking. Jackson v, Stiter and
Wife, 15 Mass. 48 ; Alderman v. French, 1 Pick. 1. The weight
of authority would however seem to be against this position. At
any rate, it must be confined to the action of slander. 2 N. Hamp.
89 ; 2 Phillips E. 97, and note. But be this as it may, those cases
are not analogous, because affidavits filed under the act of 1835,
are neither pleas nor in the nature of pleas. The act requires an
affidavit to prevent delay ; as without that a formal defence to
obtain time would be made when the debt was justly due. It is an
appeal to the conscience of the defendant, and will rarely be made
unless the facts stated by way of defence comport with the truth of
the case. If the party has no defence, a judgment according to the


[Bowen . De Lattre.J

ordinary course is entered against him. Or if the defendant in his
affidavit declares no legal defence, the court renders judgment
against him. But the affidavit, as was the case when filed under a
rule of court, has not the form of a plea, nor is it so in substance.
An issue cannot be joined upon it either by replication, demurrer,
or otherwise. As the object of all evidence is to elicit truth, there
is nothing better calculated to attain that end, than to take as true
against him, what a party has asserted in an affidavit made by him-
self deliberately, and filed as part of the proceedings in the cause.
The difficulty is not as to its admissibility, but it may be doubted
whether facts so stated should not be held conclusive, or in other
words, whether a party should be permitted to avail himself of
one state of facts, and on the trial put his case on a different arid
distinct ground, entirely inconsistent with the defence alleged in
the affidavit.

Judgment affirmed.

Cited by the Court. 10 Barr 168.

|| Semble, and affidavit of defence filed in a cause, is not considered as part
of the evidence, unless offered at the trial : Maynard v. Bank, 2 Outer. 250.
An affidavit of defence made by a defendant's agent, and used by such
defendant in one suit, may be used, as an admission of a fact therein,
against him in a suit brought by him against a third party : Reineman v.
Blair, 15 Norris 155.||

*[PHILADELPHIA, APRIL 24, 1841.] [*435

Humphreys and Others against Eeed.


The plaintiff, who was the owner of a canal boat, received and pave a
receipt for certain casks of nails, in good order, &c., which he agreed to
deliver (the damages of the navigation excepted), in the like good order and
condition, to VV. L., No. 17 Walnut street, Philadelphia, he paying freight
for the same at a certain rate. On the voyage to Philadelphia, the boat
struck against a stone in the bottom of the canal, by which a hole was
knocked in her bottom, and the nails became wet and damaged. On her
arrival in Philadelphia, the captain of the boat delivered the nails at tlio
wharf of the defendants, who were forwarding and commission merchants,
with instructions not to deliver them until the freight was paid. The defend-
ants, however, delivered the nails to W. L., without receiving the freight.
In trover for the nails, it was hdd, (1) That the defendants had a right to
show that in consequence of the unskilfulness or negligence of the persons
employed in the management of the boat, the plaintiff was not entitled to
recover the stipulated freight; (2) That the carrier was not bound to show
thut his boat was water-tight and sound at the beginning of the trip ; (3) That
the delivery on the wharf of the defendants was not in this case a delivery
to W. L.; (4) That it was a question of fact for the jury, whether the injury
to the nails was occasioned by the negligence or fault of the persons em

435 SUPREME COURT [March Term,

[Humphreys v. Reed.]

ployed on the boat, or came within the exception of the dangers of the
navigation. 1 (5) That the captain and steersman of the boat were not com-
petent witnesses for the plaintiff without a release.

ERROR to the District Court for the City and County of Phila-
delphia, to remove the record of an action on the case brought by
Alexander Reed against Charles Humphreys, L. Gr. Dutilh, and
Wm. Carlisle, trading as Humphreys, Dutilh & Co.

The plaintiff declared in trover for 500 kegs of nails. Plea not

The cause came on before Stroud, J., on the 25th of November
1839, when the plaintiff gave in evidence the following depositions,
after objection on the part of the defendants, which was overruled.
*4.3fil *Isaac McKinley Reed deposed as follows :

" I was master of the canal boat of Milton named the
Good Intent, in April 1838, and still am. Alexander Reed owns
the boat. She started in April 1838, from Farrandsville ; she had
500 kegs of nails on board, shipped at Farrandsville by Charles F.
Pearson to Wm. Lyman. This exhibit shown to me, marked A.,
is the manifest and bill of lading signed by plaintiff, and handed to
me as the master of the boat. Shortly afterwards we started on
our voyage to Philadelphia. The crew consisted of myself as
master, John H. Maffitt as steersman, and James Dergeman, driver.
That is the ordinary complement of a canal boat. This was the
first trip of the season. The water had not been let into the canal,
I think, over a month. After we had left home a few days, coming
under a bridge between 8 and 9 o'clock in the morning, we struck
on a stone or some sunken thing in the bottom of the canal, which
I could not discover ; it could not be seen. The boat was in the
customary place of running ; as near the centre of the canal as
could be guessed at. John H. Maffitt was at the helm. I was on
board the boat not doing anything in particular. The steersman
was watching the head of the boat, keeping her steady and straight
in the canal. I had no means of discovering or preventing the
accident. It knocked a hole in the bottom of the boat in one place,
and cracked a plank in another ; the water got in ; it wet 199 kegs
of the nails, which were all that I could see were injured. There
was no other cargo on board. On our arrival in Philadelphia, I
took the boat to Walnut street wharf on the Schuylkill, which is
the wharf of the defendants ; they are forwarding and commission

1 || And semble, in the absence of evidence acquitting such persons of
negligence, it (negligence) may be presumed : *444. The reason being, that
" a danger of navigation" depends for its existence on the facts of the loss,
and to bring the carrier's case within such exception, he must prove the
facts; but where the excepted risk is a ''loss by fire," the carrier having
proved a destruction by fire without disclosing any negligence, the burden
of showing negligence is on the owner, &c., of the goods destroyed : Patter-
eon r. Clyde, 17 Smith 500. ||


[Humphreys v. Reed.]

merchants. I went to Mr. Hoffman, one of the clerks of the defend-
ants in their store, and asked him where I should deliver the nails.
He then told me to deliver them in the shed on the wharf, which I
did. Shortly afterwards he gave me the receipt marked B. Before
that time I had been to see Mr. Horatio Etting, the agent of Mr.
Wm. Lyman, to see him and know what he wished done with the
nails that were wet. He said we would have to have the nails
unloaded and the damages appraised. I asked him for the freight,
which amounted to $250, which he refused to pay, alleging that the
nails were damaged. I asked him again for it on another day, and
received the same refusal, and the same reason, and wanted Capt.
Reed to bear whatever damage they had sustained. I communi-
cated to Mr. Carlisle, one of the defendants, that some of the nails
were damaged, and that Mr. Lyman had refused to pay the freight
As soon as I ascertained that they would not pay me the freight, 1
gave Mr. Hoffman orders not to deliver the nails to any one until
I gave him further orders. I then started for home. I next returned
to Philadelphia about the latter part of May or 1st of June. I
called upon defendants to see if the nails were there. I saw
Mr. Carlisle; he said he *had delivered the nails to Wm. r*4q7
Lyman. He said he did not know the nails were in dispute. *
I told him before I went away that the nails were damaged, and
that they had refused to pay me the freight. Exhibit marked C. is
a copy of the note written by plaintiff's counsel to Mr. Lyman,
demanding the freight and notifying him that the nails were in store
at his risk and expense ; and that they would not be delivered until
the freight and storage were fully paid ; and other matters therein
stated. The original of which I delivered to Mr. Lyman person-
ally, on the 26th April 1838, and on the next day made affidavit on
the said copy." Cross-examined. u The accident happened two
or three miles from Watsonstown, in Northumberland county. It
was under a farm bridge. The navigation had been opened from
three weeks to a month. But very few boats had passed that I had
a knowledge of. There was nothing peculiar in the shape of the
canal at that place that I recollect. I cannot tell which lot of
nails was injured. There was no person present at either of the
conversations I had with Mr. Carlisle. There were persons pass-
ing and repassing. I think I had arrived two days before 1 got
the receipt from Mr. Hoffman. The boat was lying at Mr. Hum-
phrey's wharf, and the nails were on the wharf before I got the
receipt. I don't recollect whether I ever showed the receipt
marked B. to Mr. Etting or not, but I think I did when I demanded
the freight. I left here on my return to Dunnsbury, about the last
of April or 1st of May." Re-examined. " When I left on this
trip returning, the nails were still in the shed, on the preceding

437 SUPREME COURT [March Term,

[Humphreys v. Reed.]

John Hill Maffitt deposed that " He was steersman of the canal
boat Good Intent, on her trip to Philadelphia, in April 1838.
This is the second summer that I have run a canal boat. Isaac Reed
was the master of the boat. He has followed running canal boats
three years to my knowledge. We were running along the canal
as usual between 8 and 9 o'clock in the morning ; our boat struck
something at the bottom of the canal, which I suppose was a stone.
I was standing at the helm at the time. I cannot say whether he
was on deck or below. I did not know anything of the accident
until we struck the stone, after which I did all in my power to
save the nails. I do not know of any accident having happened
before in that place during the season. I had run over the same
ground the previous season, and had not heard of any accident
having taken place there." Cross-examined. " I am engaged by
the summer on board this boat, at so much a month, and work at
his farm when the boat don't run. This boat had two horses to it.
This was a union canal boat an open boat. The injury took
place about 5 or 6 feet from her bow, as near as I could tell. I
think it was middling clear weather. The accident happened
about 16 miles above Northumberland, on the West Branch canal."
*438T Re-examined. ''I was not far off when I heard Isaac Reed
J tell one of the clerks belonging *there, at the wharf, not to
deliver the nails until further orders ; but I do not know whether
they saw me or not. I was not paying much attention. I heard
it accidentally."

The following are the papers referred to in the deposition of the
witnesses :

" Invoice of three hundred and five casks nails and spikes
shipped by Charles F. Pearson, agent, on board boat Good Intent,
John Reed, master, and consigned to W. Lymen, 17 Walnut street,

[ Here follows a list of the kegs, &c.]

" Received, Farrandsville, April 6th 1838, of Charles F. Pear-
son, agent, three hundred and five casks nails in good order and
well conditioned, which (the dangers of the navigation excepted) I
agree to deliver in the like good order and condition to W. Lyman,
Esq., No. 17 Walnut street, Philadelphia, he paying me freight
for the same at the rate of fifty cents per keg ; and also the same
rate on the 195 (one hundred and ninety-five) casks for Messrs.
Bevan & Humphreys.

(Signed^ ALEX. REED."


[Humphreys . Reed.]


"Received per Good Intent, of Capt. Reed, five hundred kegs
nails (in shed).

April 21st '38. per C. J. HOFFMAN."

"Mr. W. Lyman. Sir:

On behalf of Capt. Alex. Reed, we are instructed to demand
from you the payment of two hundred and fifty dollars, the amount
due by you to him, for the freight of 500 kegs nails from Farrans-
ville to Philadelphia; which nails are now in store at your risk
and expense, and will not be delivered until he said freight and
storage are fully paid. We are further instructed to notify you
that unless the same be fully paid to us on or before the 8th May
1838, it is his intention to expose the said nails to sale by public
auction at your risk, and on your account ; and he will hold you
answerable for any loss that may ensue.
Yours, &c.,


Attorneys, &c.
Philada., 26th April 1838. No. 104 Walnut street."

The defendants produced no evidence. Their counsel requested
the court to charge.

1. That the plaintiff could not recover the goods, because he
*had not earned his freight by carrying them according to r+joa
the terms of the bill of lading.

2. That the plaintiff could not recover, if the nails had been
injured by the negligence of the boatmen, to an amount greater
than the amount of freight claimed.

3. That where a carrier alleged that an injury had occurred by
a danger of the navigation, he was bound to show his vessel sea-
worthy, at least so far as respects the danger from which the injury

4. That delivery on the wharf was a delivery to the owner, and
the lien for freight was gone.

5. That striking upon a stone in the canal was not a danger of
the navigation excepted by the bill of lading.

6. That if freight was for any reason not due and payable, the
plaintiff could not recover.

The learned judge however charged that these points had no
application whatever to the suit. He said that if the plaintiff, as
owner of the boat, had sued Mr. Lyman for the freight, they might
have deserved some consideration ; but were to be thrown out of
the present case by the jury.


439 SUPREME COURT [March Term,

[Humphreys v. Reed.]

The jury found for the plaintiff $273.54 damages. Whereupon,
the defendants took this writ of error.
The following errors were assigned :

I. Because the judge admitted the evidence of J. McKinley
Reed and John H. Maffitt, the one the master and the other the
steersman of the boat, in which the nails were carried.

II. Because the judge charged the jury that they were not to
take into consideration the following points made by the defendant's
counsel, viz. :

1st. That the plaintiff was not entitled to recover in this suit,
because he had not carried the goods according to the terms of the
bill of lading.

2d. That if the nails were injured, by the neglect or negligence
of the boatmen, to an amount equal to or greater than the freight
claimed, the plaintiffs are not entitled to recover.

3d. That where a carrier alleged that an injury had occurred, by
a danger of the navigation, he was bound to show his vessel sea-
worthy, at least so far as respects the danger from which the injury

*4401 *4th. That delivery on the wharf was a delivery to the
- owner, and the lien for freight was gone.

5th. That striking upon a stone, in the canal, was not a danger
of the navigation, excepted by the bill of lading.

6th. That if freight was for any reason not due and payable, the
plaintiff could not recover.

Mr. Williams, for the plaintiff in error, cited Robertson v. Stew-
art, 5 Watts 449 ; Bartram v. McKee, 1 Id. 39 ; 3 Esp. N. P. 114 ;
Ogles v. Atkinson, 5 Taunt. 759 ; 1 E. C. L. R. 255 ; Clemson v.
Davidson, 5 Binn. 399.

Mr. J. A. Phillips, contra, cited Ostrander v. Brown, 15 Johns.
Rep. 39 ; Gordon v. Little, 8 S. & R. 533 ; Atwood v. Reliance
Co., 9 Watts 87; Hart v. Allen, 2 Id. 117; Leech v. Baldwin,
5 Id. 446.

The opinion of the court was delivered by

KENNEDY, J. This is an action of trover for five hundred kegs
of nails, in which the plaintiffs in error were defendants in the Dis-
trict Court, where it was commenced and tried, and the defendant in
error plaintiff. The latter being the owner of a canal boat, called the
Good Intent, had been employed by Charles F. Pearson, agent, to
convey, by his boat, the nails, on the canal, from Farrandsville to
Philadelphia, there to be delivered to W. Lyman, Esq., No. 17 Walnut
street, upon his paying the defendant in error freight for the same at
the rate of fifty cents per keg. The defendant in error by his writ-


[Humphreys r. Reed.]

ten engagement, made on the 6th of April 1838, after having re-
ceived the nails, bound himself to do so. He accordingly sent
his boat on with the nails, in charge of Isaac McKinley Reed
as captain, and John Hill Maffit as steersman of it. They
arrived with the boat and the nails at Philadelphia, about the
22d of the same month, at the Walnut street wharf, then in pos-
session of the plaintiffs in error. The nails were in good order
when received by the defendant in error, but in the course of the
transportation had, from some cause, received wet, and in conse-
quence thereof were in a damaged state when brought to the wharf.
Lyman did not, as it would appear, refuse to receive the nails ; on
the contrary, he was willing to do so, but objected to paying the
freight, which the captain of the boat, as the agent of the defend-
ant in error, claimed before the value of the injury done to the
nails should be ascertained, so that it might be deducted from or
set off against the freight. The captain of the boat, however,
would not accede to this ; and instead of delivering the nails to
Mr. Lyman, he left them in charge of the plaintiffs in error, tak-
ing a receipt from their clerk for having done so, without T-*AI-I
specifying the purpose or object of the *deposit. The plain- -
tiffs in error afterwards, upon the demand of Mr. Lyman, delivered
the nails to him. Now it is perfectly obvious, from this exhibit
of the case, that the only interest or claim which the defendant in
error could have in the nails, as against Mr. Lyman, was the
amount of his freight, say two hundred and fifty dollars ; and this
sum, with interest thereon, appears to be what the jury gave their
verdict for against the plaintiffs in error. This action, therefore,
though trover, would appear to have been brought for the purpose
of recovering the amount of the freight claimed by the defendant
in error. So far, then, as the attainment of justice would seem to
have been a matter of concern in the cause, the main question pre-

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 49 of 75)