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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 2) online

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spect and consequently equal in verity to their protocols. But
at all events, the duplicates being made out and certified by the
commissioners, under their hands and common or the county seal,
would seem to be evidence of as high a nature, and quite as veri-
table as copies of the assessments certified by their clerk under
the county seal, which are expressly made good evidence by the
22d section of the Act of the 15th of April 1834. Stroud's Purd.
(1841) 196. The evidence then being competent, and also ple-
nary to establish the fact that George Conrad was charged with
public taxes, not only for two, but three years successively, while
a resident in the borough of Lewisburg, brings us to the conside-
ration of the next objection ; that the testimony is insufficient to
prove the payment of these taxes. The witnesses adduced for
this purpose, it must be observed, were the collectors themselves,
with their respective duplicates and warrants in their hands, by
which they were authorized and required to collect these taxes.

July 1841.] OF PENNSYLVANIA. 69

[Overseers of Lewisburg v. Overseers of Augusta.]

They say that these taxes for the years 1831, 1832 and 1833, were
paid, because they are marked as paid on their duplicates ; that
they do not recollect the fact of their having been paid, but have
no doubt that it was so, for they are marked as paid by them-
selves ; and that they would not have done this if the fact had
been otherwise. Neither can they recollect that these taxes were
paid by George Conrad himself, but they have no reason to be-
lieve that they were paid by any other person. Now it must be
recollected that the collector of taxes is a public officer specially
appointed, and clothed with the public authority for that purpose.
A registry therefore made by him in writing, of his having per-
formed certain duties as such, is not to be looked upon merely as
a memorandum or registry made by a private individual of his
transactions ; but as an official act, to which some degree of faith
and credit at least, is to be given, on account of the public confi-
dence reposed in him for his integrity and truth, which is evi-
denced by his appointment to the office. Hence I am inclined to
believe that the production of the duplicate and warrant, with a
return or mark made on it by the collector that the tax has been
paid, with proof that such return or mark was in his hand-writing,
would be sufficient to prove that the tax was paid, without calling
the collector himself for that purpose : this is frequently done in
the case of a sheriff, where he has returned money made on a writ
of fieri facias; and why should it not be so in the case of a col-
lector of the public taxes ? In principle there is no distinction
between the two cases. And in every such case it is not only
evidence that the money has been paid, but evidence likewise,
that it was paid by the party charged and bound to pay it. Great
public inconvenience would inevitably arise, if no evidence could
be given of their official acts, except by calling them forward to
testify to the fact, and then not to be permitted to give evidence
of it unless they have a distinct recollection of it.

Decree affirmed.


Post against Carmalt.

Mutual debts do not per se extinguish each other : to effect such extinguish-
ment, there must be some act of the parties, whilst debtor and creditor, by which
they determine that one shall go in satisfaction of the other; which act must be
of binding efficacy, so as to accompany the claims into whose soever hands they
may pass.

ERROR to the Common Pleas of Susquehanna county.

Caleb Carmalt, assignee of Robert H. Rose, against Simeon
Cook, with notice to Isaac Post, terre tenant. This was a scire
facias upon a mortgage, and the same case which is reported in
8 Watts 406. The defendant pleaded payment with leave to
give the special matter in evidence, and in pursuance of the rules
of court, gave the following notice of his defence :

" The terre tenant, Isaac Post, under his plea will give in evi-
dence :

" Payments to Robert H. Rose, per his receipts,

"2d January 1816, $3000

" 15th December 1815, 70 00

" 8th January 1817, 193 92

$293 92

" And also that the said Robert H. Rose subscribed to the Sus-
quehanna Academy the sum of fifty dollars, which sum was by
the trustees of said Academy assigned to the said Isaac Post, and
the said Robert H. Rose requested the said Isaac Post to charge
the same in account between them, and it should apply to said
mortgage, to be applied as of January 1818.

" Also an order of William M. Doty of $24.33, dated 13th
June 1818, which the said Robert H. Rose agreed to take and
apply as aforesaid. Also an order of Robert H. Rose, 10th April
1820, in favour of J. Green, for $26.00. And the said Isaac Post
will also give in evidence an account of the said Isaac Post
and David Post against the said Robert H. Rose, amounting to
$152.49 ; and prove an admission and agreement of the said Ro-
bert H. Rose, that the said account should apply in payment of
said mortgage.

" Also an account of the said Isaac Post against the said Ro-
bert H. Rose of $7.56. The first of said accounts under dates
from the 5th of April 1818, to 13th December 1819; and the last
from 19th September 1821, to 10th April 1827.

July 1841.] OF PENNSYLVANIA. 71

[Post v. Cannalt]

" And the said Isaac Post will insist that so much of the said
sums as may be necessary to satisfy said mortgage, shall be ap-
plied to the same."

The plaintiff replied the Statute of Limitations to the defend-
ant's set-off.

The defendant, after giving in evidence the accounts mentioned
in his notice of special matter, called Dr Rose as a witness, who
testified as follows :

" I have a very indistinct recollection, but if I could be per-
mitted to refer to my papers," (witness then examined some pa-
pers, and proceeded,) " there was an account unsettled with
Isaac Post. I had the two mortgages of Simeon Cook and J. J.
Hubbard, on which he was to apply any unsettled account which
he had not any specific account but any account which he had
he did apply some, as you have heard. I subscribed $50 to
the Academy, which I think Mr Post answered for me.

" The Doty order is correct for $23.33, and I charged to Doty
in 1818, $23.33 for this order. I have examined the account of
Post. This account was sent to me at the time it bears date.
The orders produced are mine. It is so long since that I can't
particularly recollect the delivery of the articles. I believe the
account is correct." (Account commencing April 5th 1818, of
I. & D. Post, and ending December 13th 1819; and account of
Isaac Post commencing September 19th 1821, and ending April
10th 1827.)

David Post testified as follows :

" At the time my brother and I were doing business in partner-
ship, it was understood that my brother was indebted to Dr Rose
for land, and it was understood between us that he was to have
the account made by Dr Rose to apply on what he was owing
Dr Rose for land. I don't know that Rose knew any thing about

Robert H. Rose, being recalled, testified as follows:

" The accounts of I. & D. Post were to apply on what Isaac
Post was owing for land. There was no specific account spoken
of, but the account in the store was to be applied."

The court below, in answer to a point put by defendant's coun-
sel, thus instructed the jury :

CONYNGHAM, President. This cause has been heretofore before
the judges of the Supreme Court, and they have sent it back here
for another trial, laying down the law which must govern both
court and jury at this time. We do not discover that in the evi-
dence now there is any material difference to vary the rule laid
down by the Supreme Court. Dr Rose is only more distinct and
positive now with regard to the authority to appropriate the
claims on the part of Mr. Post, a view of the case which the Su-
preme Court assumed in their opinion ; and we consider, therefore,
that the rules by them stated must still apply to the cass. We



[Post v. Carmalt.]

say to you, therefore, that there is no evidence before you at this
time, of any application of these debts to each other by the joint
or concurrent act of the parties before or previous to the assign-
ment of the mortgage to Mr Carmalt ; and therefore, that as far
as Mr Carmalt is concerned, there is nothing in the case to estop
the operation of the Statute of Limitations on the claims or off-
sets of the defendant. Consequently, that such claims and offsets
are barred, and should not now be allowed, and that the plaintiff
should recover the otherwise conceded balance due on the mort-

Williston, for plaintiff in error, referred to the testimony of Dr
Rose, and argued that it should have been referred to the jury as
a matter of fact whether the parties had not made an actual ap-
propriation of the accounts as set-off to the mortgage, and that
the jury would have been justified in so finding.

Case, for defendant in error, argued that the testimony amounted
to nothing more than an expression of the willingness of the par-
ties that the appropriation might be made, but that it clearly ap-
peared that it never had been made. The proof was too vague
and uncertain to submit to a jury.

The opinion of the Court was delivered by

SERGEANT, J. This case is not, in the point now discussed,
placed in a situation materially different from that which it pre-
sented on the former writ of error. It is urged that the present
evidence of Dr Rose goes positively to show an agreement be-
tween him and Post, that the claims of Post should be applied in
discharge of the mortgage, which the court below ought to have
left to the jury ; whereas, they charged that there was no evidence
that could, in point of law, alter the character of these claims, and
bar the operation of the Statute of Limitations upon them. Tak-
ing the testimony of Dr Rose alone, and without referring to the
other evidence in the case, it is, in our opinion, too loose and un-
certain in its character to justify the inference that any applica-
tion of these claims had been made by the joint or concurrent acts
of the parties prior to the assignment of the mortgage from Rose
to Carmalt, so as to preclude the assignee from insisting on the
bar by lapse of time. It is settled, that mutual debts do not per
se extinguish each other. Himes v. Barnitz, (8 Watts 39); Car-
malt v. Post, (8 Watts 406). To effect such extinguishment, there
must be some act of the parties, whilst mutually debtor and cre-
ditor, by which they conclusively establish that one shall go in
satisfaction of the other, which act must be of binding efficacy, so
as to accompany the claims into whose soever hands they may
pass, and fix definitively their character, and determine whether
they still subsist as debts, or become cancelled and extinguished.

July 1841.] OF PENNSYLVANIA. 73

[Poet v. Carmalt]

But all that Dr Rose says is comprised in a line or two : that the
unsettled accounts between them " were to be applied on what
the defendant owed for the land." This apparently means that
such was the purpose and intent of the parties, and that if either
had requested the application to be made, it would not have been
refused. But he does not allege that this was ever done ; nor does
he state that there was any positive and fixed agreement between
them to that effect, which would conclude them, nor state when
or where, or on what occasion such agreement was made. The
design is left inchoate and incomplete, to be performed at some
future day ; and if before that day either party chooses to assign
his claim to a third person, without having effected this purpose
or intent, and without any express arrangement on the subject,
the assignee might well contend, that what was intended to be
done never was done, nor any act completed which would be
equivalent in its legal operation. No particular mode of making
such application, either by endorsement or settlement of accounts,
(though these, perhaps, would be the safest modes) is designated
by law, but certainly there must be some positive and definite act
or agreement by which both parties are bound, and not a floating
general intention or willingness which either may relinquish, and
which he must be considered as relinquishing who assigns his
claim to a third person for a valuable consideration, and without
notice, as appears to have been the case ; otherwise third persons
would be prejudiced by latent intentions in the breast of the
assignor, never executed, and never communicated to them. For
these reasons, we think there was no error in the charge of the
court. .

Judgment affirmed.

n.~ 10


Rathbone against Tioga Navigation Company.

After the issuing of letters patent by the governor, in compliance with the
requisition of an Act of Assembly creating a corporation, a deed of conveyance
to the company is good and effectual to vest the estate conveyed in it; although
they may not have been so far organized as to have elected their officers ; and their
assent to it will be presumed.

A conveyance of land to a company for the purpose of constructing a rail-road
upon it, " provided the same does not interfere with buildings on said land," will
be so construed as to prevent the construction of the road so near to the buildings
as to endanger their safety or destroy their usefulness.

A corporation may become bound by an express or implied contract, or with
or without seal.

ERROR to the Common Pleas of Tioga county.

Clarendon Rathbone presented his petition to the court for the
appointment of viewers to assess damages for injury done to his
land by the location of a rail-road by the Tioga Navigation Com-
pany through it. The viewers were appointed, and made a re-
port in his favour for $350, from which the company appealed
to the Common Pleas ; and when the cause came on for trial, the
company gave in evidence the following deed of the said Claren-
don Rathbone :

" Know all men by these presents, that we, whose names are
hereunto subscribed, in the township of Lawrence, in the county
of Tioga, Pennsylvania, in consideration of one dollar to us in
hand paid by the Tioga Navigation Company, have bargained,
sold, released, and quit-claimed, unto the said Tioga Navigation
Company, and to their successors and assigns, all those certain
pieces or parcels of land, situate, being and lying in the township
of Lawrence, by us jointly and severally occupied, or owned, not
exceeding in width three rods, across said land, providing the
same does not interfere with buildings on said land ; then in that
case, all damages, so far as relates to the buildings, to be paid by
the company, in such part thereof, and in such direction as the
president and managers to be elected, shall lay out the rail-road
from Blossburg to the state line, at or near Lawrenceville ; and
also the right and privilege of casting earth upon, and otherwise
using so much of the land on both sides of the piece herein con-
veyed, as may be necessary for the convenience of said company,
while the said rail-road is constructing, to have and to hold the
same, together with the privilege aforesaid, unto the said Tioga
Navigation Company, their successors and assigns, for the pur-

July 1841.] OF PENNSYLVANIA. 75

[Rathbone v. Tioga Navigation Company.]

poses of the rail-road aforesaid, with all and singular the heredi-
taments and appurtenances thereunto belonging."

CONYNGHAM, President, thus stated the case and charged the

This is a proceeding commenced under the 4th section of the
Act of 4th of April 1833, supplementary to the Act incorporating
the defendants, and is brought into court by the appeal of the
defendants from the report of viewers, under the provisions of the
same section. The declaration sets forth the proceedings under
this Act, and several pleas are put in by defendants ; to only one
of which, under the view the court proposes to take of the cause,
is it necessary to refer; this is the deed of release dated the 27th
of July 1835 ; and to this special plea the plaintiff replies and
alleges that it was obtained by fraud, or under certain conditions
as to location and fencing, which have not been complied with by
the defendants. There is no evidence before you of any fraud in
regard to this matter, or any evidence of a condition with regard
to the location, as stated in the pleadings ; and the evidence of
Dr Parkhurst that the agreement with the several parties, was
that the company should fence out the road, is not a condition
which would destroy or defeat the operation of the release or
agreement at this time, whether the company have done the
fencing or not. The charter of the company was obtained from
the governor under the seal of state, on the 18th day of July 1835,
previous to the date of the release; and therefore under the 3d
section of said supplementary Act, the said company was then
authorized to purchase lands or tenements, which may be neces-
sary for the erection of said rail-road. For all then that appears
in this cause, you are to consider this as a valid and existing deed
and agreement between the parties.

The fair construction of the deed appears to the court to be,
(and this is matter of law for us,) that it is a release of three rods
of land across the farms of the subscribers, to be located in such
part thereof, and in such direction as the president and managers
of the company to be elected, shall select, to occupy with their
rail-road, &c., together with the privilege of using land on each
side for certain purposes therein specified; provided, however,
that in case such location shall interfere with any buildings, then
the company shall pay the damages for such interference with the
buildings ; that is vesting in the company the right to the land,
wherever the road may be located for such purposes, absolutely,
upon the implied agreement to pay damages for any buildings
they may interfere with by such location. A question would in
the first place here arise, if it were not for another part of this
case to which your attention will be hereafter directed, whether
under the evidence there is now such a case presented, that the
court could, under their legal construction of this written agree-
ment, leave to you the ascertainment of any damages. We think


[Rathbone v. Tioga Navigation Company.]

that in such a case as is here presented before us, it would not
require that there should be an absolute touching of the building to
interfere with it. An interference with, or an obstruction to the
privileges and appurtenances rendered necessary for the enjoyment
of the building for the purposes for which it was intended to be
used, would be contrary to the spirit of this contract. Exposure
to danger by fire, unreasonable obstruction of the proper mode
of ingress and egress, and such like matters, would all be calcu-
lated to lessen the value of the buildings as such ; and therefore in
our opinion, if they existed, would be such an interference with,
and damages to the buildings, for which the owner might fairly
seek for compensation under the meaning of this agreement or
release. It might not have been necessary that the court in this
case should have given the above opinion to you, as we think there
is a legal difficulty in the way of the plaintiff's recovering any
thing in this form of proceeding ; but we have been desirous that
the various questions arising under the evidence, might all be dis-
posed of on the record.

We have already said to you that the execution and delivery
of this release vested in the defendants the right to the three rods
of land, together with the privilege of using the necessary land
on each side for their convenience, while the road was being con-
structed ; subject only to the implied agreement, and that an ab-
solute one, irrespective of any increased value to the property, to
pay not the value of the land occupied, but only for the buildings;
and also under the testimony of Dr Parkhurst, for fencing. It
gave to the company the right of immediate entry, to locate the
road wherever the president and managers might direct, and also
to construct the same ; and took away from them the characters
of trespassers, which would otherwise have appertained to them
for so doing, unless they should have previously fulfilled all the
prerequisites required of them under the 4th section of the Act
of April 1833.

This Act however contemplates a state of things altogether
different from those we have just stated. The 1st section provides
how the road is to be located ; it repeats all the different consi-
derations which are to operate, to justify and authorize the loca-
tion. The 4th section considers no interest in the land to be
vested in the company, until payment of the damages, &c. ; and
indeed no right of entry, until the commencement of the proceed-
ings and tender of the amount reported by the viewers; and these
damages, whether estimated by viewers, or by a court and jury,
are for the land, including buildings and all appurtenances, to be
estimated however, under the general advantage derived to the
owner of the property from the rail-road.

Again, the Act gives no authority to the company to go
through a dwelling-house, or any out-house of the value of $500,
without the consent of the owner. Now it may be the true con-

July 1841.] OF PENNSYLVANIA. 77

[Rathbone v. Tioga Navigation Company.]

struction of this agreement, that the company have the consent
of the owner to pass through any buildings, being obliged merely
to pay the damages for the building. Further, the Act regards
the owner of the land occupied by the location of the road, as the
person entitled to damages under the summary method of reco-
vering them, therein provided. In this case, the company under
this release, and not the plaintiff here, were the owners of the land
at the time of the location. Is it not evident that the Act refers
to a case where the owner and the company are different persons?
We finally say to you that this release so changes the situation
and rights of the parties respectively, that the special proceeding
provided under the 4th section of the Act does not apply to them,
and therefore that the plaintiff cannot now recover.

His remedy, if he has sustained damages contrary to the spirit
and meaning of the deed of release, is by an action upon the im-
plied undertaking therein contained. And we add that there is
nothing in this case to authorize the plaintiff to recover the value
of the two rods of land, over and above the three rods occupied
under this release.

The court further charge the jury in reply to the points sub-
mitted by the plaintiff:

The first point does not arise in the cause.

To the second, we reply that the release recited a valuable
and sufficient consideration paid. That Dr Parkhurst swears he
was requested by some of the stockholders in the company to pro-
cure releases on the various different proposed routes of the road,
to assist in deciding on the question of location, whether on the
east or west side of the Tioga river. This release from its very
language, is drawn, submitting the location to the officers after-
wards to be elected, the charter having been then duly obtained.
It is afterwards delivered over to the company, whose officers as
the plaintiff shows us, were duly elected in August 1835, and
claiming under this deed, they proceeded to locate the road.

Maynard and Greenough, for plaintiff in error, argued that
delivery was essential to the validity of a deed, and before the
company was organized, it was incapable to receive it. 5 Watts
354; 2 Watts 362; 8 Watts 9; 1 Penn. Rep. 32, 402; 7 Cranch

Williston, for defendant in error, cited 4 Whart. 135.

The opinion of the Court was delivered by

KENNEDY, J. A number of errors have been assigned, some of
which are exceptions to the general charge delivered by the court
below to the jury; and the rest are exceptions to answers given
by the court to points submitted by the counsel of the complain-
ant. The charge delivered by the president of the court (Conyng-
n. o *


[Rathbone v. Tioga Navigation Company.]

ham,) is certainly not only correct, but excellent in every respect,
so far as it is applicable to this case. Whether the company had
by the deed of grant, bargain and sale to them, from the owners

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