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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



>\ tt A 'i a v \V \v.\v i\ \A *

V-JviflS\|lYirA, ^^rts. Su.j>r<yAi C*^*^

REPORTS



OF



CASES



ADJUDGED IN



THE SUPREME COURT



OF



PENNSYLVANIA.



BY

THOMAS 8ERGEJ1JVT $ WM. RAWLE, JUW.



VOL. VII.



PHILADELPHIA:

PRINTED AMD PUBLISHED BY ABRAHAM SMALL,

No. 165, Chesout Street.

1823.



45




M



.-Eastern District of Pennsylvania, to -wit:

BE IT REMEMBERED, 7%<z* on <Ae tetfA day of July, in the forty-eighth

year of the Independence of the United States of America, A. D. 1823,

(SEAL.] Abraham Small, of the said district, hath depositedin this office the title of a

book, the right whereof he claims as proprietor, in the words folio-wing, to wit :

" Reports of Cases adjudged in the Supreme Court of Pennsylvania. By Thomas Ser-
geant, and William Ra\vle,jun. Vol. VIL"

In conformity to the act of the congress of the United States, intituled " Jin act for the
encouragement of learning, by securing the copies of maps, charts, and books, to the authors
and proprietors of such copies during the times therein mentioned." And alto to the act,
entitled, " Jin act supplementary to an act, entitled ' An act for the encouragement of
learning, by securing the copies of maps, cliarts, find books, to the authors and proprietors
of such copies dunng the times therein mentioned' and extending the. benefits tJiereof to the
tarts of designing, engraving, and etching historical and other prints."

D. CALDWELL,

Clerk of the Eastern District ef Pennsylvania.



JUDGES



OF THE



SUPREME COURT OF PENNSYLVANIA,



WILLIAM TILGHMAN, Esq. Chief Justice.

JOHN B. GIBSON, Esq. 1
THOMAS DUNCAN, Esq./ Justl

ATTORNEY GENERAL.

THOMAS ELDER, Esq.



778519



TABLE OF THE CASES.



A.

Alexander v. Stokely, - 299
Allison v. Rankin, 269
Alter v. Fleming, - - 295
Anderson, Share v. 32
Ash, Patton's Administra-
tors v. ' - 116

B.

Bank of Pennsylvania, Lig-



get v.


218


Berkey, Morrison v.


238


Bevan v. Taylor -


397


Blaker v. Cooper,


500


Blythe v. M'Clintic,


341


Bogert, Kennedy v.


97


Bower, Kauffelt, v.


64


Brindle u. M'llvaine,


345


Broad Street Road continued,


444


Brown, Willing v.


467


Bucher, Dorsheimer v.


9


Burd, Semple v.


286


Burkholder, Hanna v.


228


Bussier v. Pray,


447


Butler v. Delaplaine,


378


Byrne v. Walker,


483


C.




Carlisle v. Woods,


207


Chesnutv. Scudder,


102


Cheever v. Imlay, - ' ...


511


Christie v. Overfield,


172


Cist, Reed v. - - ...


183


Clark v Worley,


349


Clymer v. Thomas, - ;


178


Collins v. Rush, - .'_', _,


147



Commonwealth v. Anderson's
Ferry Turnpike Road, 6

v. Controllers
of the Pub-
lic School, 454
v. Gable, 423
Gillespie, 469
Russef, 489

Stoops, 491

Wolvertonw. 273
Controllers of the Public

Schools, Commonwealth v. 454
Cooper, Blaker v. 500

Cowdy, Dawson v. 366

Coyle v. Reynolds, - - 328
Creek v. Moon, - 330

D.

Da Costa v. Guieu, - - 462

Barnes v. Welsh, 203

Dawson v. Cowdy, - - 366

Deal's executors v. Deal, 201

Delaplaine, Butler v. 378
Denison's executors v. Wertz, 372

Dorsheimer v. Bucher, - 9



E.

Elliott, Harker v.
Ellmaker, Kean v.

F.

Findlay v. Smith,
Fisher v. Larick,
Fleming v. Alter,
Foster v. Shaw,



284

1



264

99

295

156



TABLE OF THE CASES.



G.

Gable, Commonwealth v. 423
Garvin's executors, Reed v. 354
Gettysburg Bank, Gurly v. 324

Gibbons, Rea v. 204

Gillespie, Commonwealth v. 469

Gillespy, Withers v. il

Givin, Hyskill v. 369

Graham, Stephens, v. - 505

Greenough, Scott v. 197

Guieu, Da Costa, v. - 462
Gurly v. The Gettysburg

Bank, 324

H.

Hanna v. Burkholder, - 228

Barker v. Elliott 284

Heller, Miller v. - 32

Helvete v. Rapp, 306

Hillegas, Leazure v. - 313

Horn, Sutton v. - 228

Hubley v. Vanhorne, - 185

Hyskill v. Givin, 369

J.

Jackson v. Wetherill, 480

Iddings v. Iddings, 111

Imlay, Cheever v. - 511

K.

Kauftelt v. Bower, 64

Kean v. Ellmaker, - 1

Kennedy v. Bogert, - 97

Kline v Shannon, - - 377

L.

Larick, Fisher v. - 99

Laurence, M'Dermot v. 438

Leazure v. Hillegas, - 313

Lesley v. Nones, - 410
Ligget v. Bank of Penns*yl-

vania, - 218

M.

Marlin v. Willink, 297

M'Clintic, Ely the r. - 341

M'Connel v. M'Coy, 223

M'Coy, M'Connel v. - 223



M'Cullough v. Montgomery, IT

M'Dermot, Laurence v. 438
Merchand's executors v.

Smith, 260

Miller v. Heller, - 32

v. Moore, 164

v. Shaw, - 129

Montgomery, M'Cullough v. 17

Moon, Creek v. - 330

Moore, Miller v. - 164

Morris v. Travis^ - 220

v. Wilkins, - - 220

Morrison v. Berkey. 238

Murphy v. Riddle, - - 230

N.

Nass v. Vanswearingen, 192

Nones, Lesley v. - 410

O.

Overfield v. Christie, 172
Patton's administrators v.

Ash, 116

Pearce, Skeen v. '- - 303

Pray, Bussier v. - 447

R.

Rambler v. Tryon, - 90
Rankin, Allison v. 269
Rapp, Helvete v. 306
Rea v. Gibbons, - 204
Reed v. Cist, - - 183
v. Garvin's executors, 354
Reynolds, Coyle v. 328
Riddle v. The county of Bed-
ford, - '*' 386
v. Murphy, 230
Robinson, Teetorv. - *' 182
Rush, Collins v. - 147
Russel v. The Commonwealth, 489

S.

Schuylkill Navigation Com-
pany -v. Thoburn, V 41 1
Scott v. Greenough, 197
Scudder, Chesnut v. "- 102
Selin v. Snyder, - 166
Semple v. Burd, ' 286
Shatter v. Snyder, 503



TABLE OF THE CASES.



Vll



Share v. Anderson, - - 43

Shaw, Miller v. 129

Foster v. - 156

Shelhamer v. Thomas, - 106

Simpson v. Wray, - - 336

Singleton, Walton v. - 449

Skeen v. Pearce, - 303
Smith t>. Merchand's execu-
tors, '.-: 260

Find lay v. - 264

Snyder, Selin v. 166

Shaffer v. - - 503

St. Mary's Church, 517

Stephens v. Graham, - 505

Stokely, Alexander v. 299
Stoops v. The Commonwealth, 491

Sutton v. Horn, - 228

T.

Teetor v. Robinson, - 182
Thoburn, Schuylkill Naviga-
tion Company v. 411
Thomas, Shelhamer v-. - 106
Clymer v. 178
Thompson v. Smith, - 209
Travis, Morris v. - 220
Tryon, Rambler v. - - 90



Turnpike Road, Anderson's
Ferry v. The Common-
wealth, - 6

V.

Vanhorne, Hubley v. - 185

"Vanswearingen, Nass v. 192

W.

Walton v. Singleton, - 449
Walker, Byrne v. - - 467
Weigley's administrators v.

Weir, 309

Weir, Weigley's administra-
tors v. - - 309
Welsh, Barnes v. 203
Wertz, Denison's executors v. 372
Wetherill, Jackson v. - 480
Wilkins, Morris v. 220
Willing v. Brown, - - 467
Willink, Marlin v. 297
Withers v. Gillespy, - 11
Woods, Carlisle v. 207
Worley, Clark v. - 349
Wolverton v. The Common-
wealth, - 273
Wray, Simpson v. - 336



CASES




SUPREME COURT



PENNSYLVANIA



LANCASTER DISTRICT, MAY TERM, 1821. CONTINUED.



KEAN administrator of KEAN against ELLMAKER.



1821.

Lancaster



IN ERROR.



Wednesday,
May, 28.



ERROR to the Court of Common Pleas of Dauphin inascirefa-

rountv clas "K 81081 a

recognisorand
terre tenant,

' This was a scire facias, on a recognisance in the Orphans' ^ceTn tC'"
Court, to recover the value of a share of an intestate's real Orphans'

i i_ . . r Cotlrt for land

estate taken at the appraisement, brought in the name of Amostk.n atanap-

Ellmaker, Esquire, President of the Orphans' Court 6f Dau- {' '{XJ?
phin county, successor to Walter Franklin* Esquire, who m " stfir v ktrec o-

ev F tv , r-r I- r ver ju.lgnv'nt

was successor to John Joseph Henry, Esquire, for the use agate* the i-
of James Alricks, against John Kean, Esquire, with notice ^n"^^"!!!}
to Daniel Rcigart and Nicholas Swoyer, terre tenants in to separate
possession of a house in Harrisburg. After the bringing against the
of the writ, Kean died, and Jane Kean, administratrix, with 4 te !T e ten *'*>

J to have exeou-

the will annexed, was substituted. A verdict and judgment tio of the
had been given in this cause, in the year 1819, which judg- 8 "} t *' 8error
ment was reversed in May, 1820, on writ of error to this ifafte ''-i n<l 8-

ment by de-
fault Against

the recognisor, the jury is sworn as to the rccognisor and terre tenant.

The declarations of the recognisor, after he has conveyed the land to a third person, are not
evidence in the proceeding against such third person as terre tenant, to shew that the recognisor
was or was not indebted.

VOL. VII. -B



8 CASES IN THE SUPREME COURT

1821. Court. (6 Serg. & Rawle, 44.) Afterwards a judgment
Lancaster - de bonis was entered against Jane Kean by default. The

Mntoferator cause then went to tria l on tne pl ea of payment : the jury
ofKhAH were sworn as respected both the defendants, Jane Kean
. and Nicholas Swoyer, the writ not having been served
on Reigart. It was admitted, that James Alricks, mar-
ried one of the daughters of the intestate, John Hamilton,
deceased, and that she was entitled to a share of the pro-
perty, for the payment of the value of which, the recogni-
sance was given by Kean, on which this suit was brought ;
and that the house occupied by the defendant, Swoyer, was
part of the property taken by Kean at the appraisement. One
question on the trial was, whether any thing remained due
to Alricks. The plaintiff offered evidence to prove, that in
the year, 1809, John Kean undertook to pay some of the
heirs of John Hamilton, deceased, for James Alricks, and ad-
mitted he was then largely indebted to James Alricks for
his wife's share in John Hamilton's real estate. To this evi-
dence the defendant objected, but the Court admitted it,
and the defendant excepted.

The defendant then offered evidence to shew, that John,
Kean, since 1809, had repeatedly said, that he had paid
James Alricks in full for his share in the estate, of John
Hamilton, and that he stated the same thing in the fall of
1816, when examined as a witness before arbitrators. To
this evidence the plaintiff objected, and it was overruled br
the Court, who sealed another bill of exceptions.

A. Hopkins, for the plaintiff in error.

The declarations of John Kean, after he had conveyed te
Reigart and Swoyer, were not evidence to affect either of
them. The declarations of a grantor after his conveyance,
are not evidence against the grantee. Packer v. Gonzalus,
1 Serg. & Rawle, 536. 539. Phcenix v. Assignees of In-
graham* 5 Johns. 412. 2 Serg. &? Rawle, 354. At any rate,
if the declarations ot Kean are admitted to charge the terre
tenant, his subsequent declarations on the same subject
ought to be admitted to rebut them.

Elder, contra.

Reigart and Swoyer purchased, with notice of the recog-



OF PENNSYLVANIA. 3

aisance entered into by John Kean. The administratrix of 1821.
Kean, was one of the defendants, and against her the decla- Aqncag * er -
rations of her intestate were evidence. On the issue of pay- KE \ N

r ' administrator

ment, his confessions were good evidence. The case is not of KEAN
like that of one who conveys land, and afterwards makes
declarations adverse to the title. Here the declarations are
respecting a debt due from the grantor, which is collateral to
the title. The case resembles that of joint tresspassers, where,
after judgment by default against one, the jury are to assess
the damages as to all. The judgment by default against the
administratrix, is for the penalty of the recognisance : the
amount to be paid by the condition is an indefinite sum, and
must be fixed by the jury. The sum fixed by the jury, would
conclude the administratrix, as well as the terre tenant. As
to the second bill of exceptions, though the declarations of a
party are evidence against him, yet his declarations made at
a different time, are not, therefore, evidence for him.

Ellmaker^ in reply.

The terre tenant was the only real defendant. The
judgment which had been taken against the administratrix
was for a sum certain, because the records of the Orphans'
Court specified the sum payable to each child : there was,
therefore, no necessity to make her a party to the issue tried.
The declarations of Kean were not evidence against the ttrre
tenant at all : but at all events, not those which he made
subsequently to his conveyance to the terre tenants.

The opinion of the. Court was delivered by
GIBSON J. At the last May Term, when this cause was
before us on another point, we described the course of the
proceedings between a recognisee and terre tenants defending
their separate interests on a scire facias. The recognisor
and the land are both debtor : the first directly and person-
ally, in consequence of the contract to pay : the second, as
a fund in the hands of whomsoever it may be ; but the re-
cognisor is the person against whom the suit is to be brought,
and until he is in Court, the cause cannot proceed for want
of parties. Hence, if he does not appear, the plaintiff must
do every thing he can to bring him in, or, in case of his death,
his personal representative ; and must, in either case, proceed



4. CASES IN THE SUPREME COURT

1821. for want of appearance, to judgment by default ; and having

_ thus disposed of the legal party, he may pursue against the

KKAW land. The terre tenant, who has come in upon notice, then

administrator .... . !

of KEAK makes defence, which, it is obvious, may be different from,
anc * therefore is always necessarily unconnected with, the
defence of the recognisor : as for instance he may plead
a release of the particular land from the lien of the proceed-
ings in the Orphans' Court. Each defends separately, and
as the issue between the plaintiff and the terre tenants is col-
lateral to the proceedings against the recognisor, who is the
deft- ndant on record, so must the judgment be, which is, that
the plaintiff have execution of the lands in the hands of the
terre tenant for as much as has been found against him. Here
then the commencement of the error was, in swearing the
jury as if the administratrix of the recognisor were a party
to the issue, and jointly concerned in the defence set up by
the 'terre tenants, when she had, in fact, been defaulted, her
responsibility in respect of the assets fixed, and when she was
to be considered a party for no other purpose than to enable
the plaintiff to proceed against the land. As she repre-
sented only the interests of the recognisor and was no par-
ty to the issue, it is plain, that his admissions could not
affect those who were bona fide purchasers from him before
.those admissions were made, and who therefore were nei-
ther parties nor privies. This is the principle so familiar in
questions respecting the effect of recitals in deeds. But it
is said, that as the judgment against the administratrix is for
the penalty of the recognisance, the condition of which is the
payment of an indefinite sum, it is necessary that a jury or
inquest should assess the sum due % ; and that the verdict
against the terre tenants would necessarily conclude the ad-
ministratrix as a party to it, on the same ground that a jury,
assessing damages against a joint trespasser, are also to assess
the damages against those who have suffered judgment to go
by default ; and that, in that view, the declarations of the
recognisor were evidence against his own estate, as far as it
was involved. There is not, however, the most remote re-
semblance between the case of joint trespassers, when the
judgment is the same against all, and when the jury who try
the issue as to those who appear, also assess the damages
against those who have suffered judgment to go by default,



OF PENNSYLVANIA. 5

and the case of a recognisor and terre tenant who represent 1821.
distinct interests in different rights, and against whom there Lancaster.

are separate judgments which differ in their nature and fre- KEAN

r . , J . , , c c t administrator

quently in their amount. We are therefore or opinion, the is- O f

sue was exclusively between the plaintiffs and the terre te-
nants, and that swearing the jury, as if the administratrix were
a party, was error, and did not render her legitimately
such ; and that as the estate of Kean the recognisor, was not
involved in the question, his declarations or admissions sub-
sequent to the time when he parted with the land, were not
evidence to affect it in the hands of the terre tenants.

On the other hand, it is urged that as the declarations of
Kean were actually admitted to charge him, his subsequent
declarations, that he had since paid the debt, ought also to
have been admitted as rebutting evidence. The rule is that
a particular part of a confession shall not be selected, but the
party is entitled to all he said at the time, as explanatory of
the expressions adduced ; but it goes no further ; for an ad-
mission would be of little value, if it might, when found to
have been indiscreetly made, be afterwards qualified, or
avoided altogether, by counter declarations. These fall with-
in the rule, that a party shall not make evidence for himself,
and it is therefore too clear for argument, that they were
properly rejected.

Judgment reversed, and a venire facias
r de novo awarded.



5 CASES IN THE SUPREME COURT

1821.

Lancaster.

Commonwealth ex relatione DUFFY v. The President,
Managers and Company of the ' Anderson's Ferry,
Waterford, and New Haven Turnpike Road.



Friday, MANDAMUS.

Jane 1.

Under the RULE to shew cause why a mandamus should not issue

45th S.-c of commanding the defendants to grant to the relator, Duffy, a
Mm-ch '26, certificate issued by the president, attested by the treasurer,
Court ^m not and sealed with the seal of the said company, and transmit a
grunt a man- duplicate of the same to the State Treasurer, for a judgment

dam us to a

turnpike com- obtained by the said Dujfy against the same company, in the
a^itififate'to Court of Common Pleas of Lancaster county, amounting to
a person 1899 dollars and 2O cents, with interest from the 22d March,
judgment 1819 : also a certificate to the State Treasurer for 4989 dol-
?fThe 8t re b - em ' lars 20 cents ' re P rted in favour of the said Du/y, on the 25th
turn that such January, 1817, against the said company, from which the
notljbia'ined' 18 company had appealed and the appeal was depending in the
for work, la- (; ourt O f Common Pleas of Lancaster county.

Dour or ser-
vice perform-

The defendants returned for cause, that the judgment for



said Act. 1899 dollars 20 cents, was not obtained for work, labour or
howler a service performed by James Dnjfy and John Pedan, tor the
tura C !hat T" sa ' d company, within the true intent and meaning of the Act
judgment ob- o f Assembly, passed the 26th day of March, 1821 ; nor was it

tained against ... . .

them isap- obtained for work done on contract, on any part of the said
ffcST' turn P ike road and that the said judgment of 4989 dollars 2O
provided for cents, having been appealed from, remained undetermined in
a^amUunus the Court of Common Pleas of Lancaster county ; and they
will ii. : tocom- ver ji y believe, that on the trial of the said suit, there will be

pel them to

grantaeerti- found nothing due or owing to the said Duffy and redan by
the said company.

They further returned, that they have not drawn any war-
rant on the State Treasurer for the sum authorised to be
subscribed by the Governor, on behalf of the Commonwealth,
nor are they ready or willing at this time, to draw out of the
State Treasury any part of the amount of the States subscrip-
tion, because they say, they are desirous of making a final



OF PENNSYLVANIA. 7



settlement of the accounts of all persons, who may have per- 1821.
formed work, or service, or to whom they are indebted for Lancaster L _
work done on contract, on the said turnpike road, previous ^ e ''^ n "
to drawing their warrant on the State Treasurer. And they relation*
humbly submit to the honourable Court, that under the Act v
of Assembly, they are vested with a discretion, as to the time, The President

J J Managers and

when, they shall draw their warrant on the State Treasurer ; Company of
nor are they bound to give any certificate until they are gon'^F^rry
ready, and dr sirous of drawing: out of the State Treasury the Waterford

and New

amount of the State's subscription, nor until the accounts Haven Turn-
have been settled by them.* P ike Road>

Hopkins for the telator, contended, that for the payment of
1899 dollars 20 cents, he was entitled to a certificate on which
immediate payment would be received from the State Trea-
sury. For the 4989 dollars 20 cents, for which a suit was

" Act of March 26th, 1821, Sec. 45." And be it further enacted that the Go-
Ternor be, and he is hereby authorised and required, to subscribe on behalf of this
Commonwealth, tor one hundred shares, at one hundred dollars per share, of the
Anderson's Ferry, Waterford, and Newhaven Turnpike Road Company, to be drawn,
by warrants in the usual manner on the treasurer, and to be paid to the president
and managers of the said company.

Sec. 77. And be it further enacted, &c. That it shall be the duty of the pre-
sident and managers of the several turnpike road and bridge companies, to which
roads or bridges, the Governor is, by this Act, authorised to subscribe for stock,
before they or any of them shall draw out of the State Treasury any part of the
amount of the State's subscription, in this Act authorised to be subscribed, to settle
the accounts of all such persons who may have heretofore performed work, labour,
or service, and to whom they are indebted for work done on contracts on any part
of the said turnpike roads or bridges, and who hold the accounts in their own right,
without having heretofore made a transfer thereof to any other person, and the
amounts due and payable to them respectively, shall be certified by the presidents
and attested by the treasurers, respectively, under their corporate seal, a duplicate
of each certificate shall be transmitted by the treasurer of each company to the
State Treasurer, and the certificate given to each individual creditor for labour per-
formed as aforesaid shall be received by the State Treasurer, and shall be paid by
him to the holder thereof or to his order, and the amount so paid shall be deducted
by the Slate Treasurer f.-om the appropriations made to such turnpike road or bridge
eompany : Provided, That if in the settlement of the accounts for work done, any
misunderstanding should arise or shall have arisen to prevent a settlement of any
account, the amount in dispute shall be certified to the State Treasurer, and shall
be retained until the dispute shall be settl"d, and when thus certified, shall be con-
sidered as if si tiled agreeably to this section, so far as to enable the company to
draw the surplus: Provided also, That if th - certificate in possession of the cre-
ditors aforesaid of any company, thus presented to the State Treasurer shalVi-xceed
thr total wmount to be drawn, the same shll be paid pro ruta: And Provided
further, That nothing herein contained shull extend to the section making an ap-
propriation to the centre turpike road leading from Reading to Sitnbury.



8 CASES IN THE SUPREME COURT

1821. depending, the relator was entitled to a certificate, on which
Lancaster, immediate payment should not be received from the treasury.
J^ai!hx The Act of Assembly provides for both cases.

, relations

J Rogers for the defendant..
The President The Act of Assembly was made for the benefit of the

Managers and

Company ot company. It gives them a subscription of 10,000 dollars,
son's^Vrry^ * r which warrants are to be drawn on the Stale Treasurer.

Waterford, fi u t the company has a discretion as to the time of drawing
and New- r '

Haven Turn- their order. Perhaps, they might not choose to accept the

pi e Road, subscription on the terms prescribed, viz. that the State should
be taken as a subscriber for 10,000 dollars. Before they draw
their order they will give certificates. As to the judgment
for 1899 dollars 20 cents, the answer of the company is a
complete bar to further proceeding in the mandamus.

PER CURIAM. As to the judgment for 1899 dollars 20
cents, the return made by the defendants shews sufficient
cause against the mandamus. If that return is false, the
injured party has his remedy by action. But as to the other
sum of 4989 dollars 20 cents, the return is insufficient It is
the duty of the defendants to give a certificate immediately;
they have no discretion on that point. The certificate will
be a security to the relator, and no injury to the defendants,
because they return that claim, as being in dispute and it is
a case expressly provided for by the Act of Assembly as



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