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on this point, your verdict should be for the defendants."

When the jury were coming into the box to render their verdict,
the plaintiff moved for a nonsuit, which was overruled by the court,
and a verdict taken for the defendants.

Both the associate judges were parties in interest in the cause,
and the special court was held by Shaler, president.

The several bills of exception to evidence and the charge of the
court were assigned for error; and also that the plaintiff should
have been permitted to take a nonsuit ; and that Judge Shaler alone
did not constitute a legal court having jurisdiction to try a cause.

Biddle, for plaintiff in error, as to the rejection of the deposition
of Hill, cited, Feiierman v. Plumer, 9 Serg. fy Rawle 20; Davis v.
Barr, Ibid. 137 ; Willing v. Peters 12 Serg. fy Rawle 181 ; Jnckson
v. Crnwf .rd, 14 Serg. fy Rawle 291 ; Jackson v. Crawford, 12 Serg.
$ Rawle 168; Gallagher v. Milligan, 3 Perms. Rep. 178; Brown v.
Insurance Company, 4 Yeates 121. On the subject of notice and
return of note, Cldtt. on Bills 97 ; 3 Maul fy Seho. 364 ; Ormsby v.
Fortune, 16 Serg. # Rawle 302; 2 Wils. 328; 5 Day 32; Gurley
tj. The Bank, 7 Serg. fy Rawle 324. That the plaintiff might take
a nonsuit at any time before the jury had announced their readiness
to give a verdict, Purd. Dig. 450. That a president judge cannot
hold a special court alone, Pam. Laws of 1833, 1834, pages 19, 20;
Purd. Dig. 451.



[M'Lughan V. Bovard.]
Yordair v. Hess, 13 Johns. 492.


Sept. 1835.] OF PENNSYLVANIA. 313

[M'Lughan v. Bovard.]

to have it formally disposed of, in order, I presume, to give the par-
ties a clear field a matter altogether unnecessary, as it was no part
of the proceeding on the scire facias, and had, for every legal pur-
pose, ceased to exist. The unfounded apprehension of the plaintiff
that it might be otherwise, did not authorise the court to treat it as
an existing document and exact terms for the setting of it aside.

Independent of the effect imparted to it by those terms, it is sup-
posed to have acquired a degree of credit from the bare statement of
the case as an admission of the facts. For what purpose and on
what condition was that admission 'I Exclusively to have the judg-
ment of the court on the facts submitted, and not to give them effect
for any other purpose. Each may have been willing to put the law
upon the circumstances, without intending to admit, or even without
believing them to be an accurate representation of the truth ; and
without consenting to be bound by them in another proceeding. A
counsel, confident that the law of the case depends entirely on a par-
ticular fact, which, if found, would be decisive for him, might be
willing 1o say to his antagonist, "give me that fact and make the
rest of the case as you please:" yet a statement immaterial in point
of legal effect, which could well be risked before a court, might ex-
pose the party to the most inveterate prejudices of a jury ; and if the
consequences of admissions thus made were to follow him on subse-
quent occasions into an inquiry by another tribunal, there would be
an end of agreements to settle facts by consent. A rejected offer of
compromise shall not prejudice ; because it may have been proposed at
a sacrifice as the price of peace, or with n view to compensation by
concessions on the adverse part, and because the admissions implied
by it were to have an effect limited to the particular occasion. la
these respects its analogue is a case stated, whose explosion ought
not, on any principle of justice, to do the parties a mischief to which
they had not consented to expose themselves, especially when the
advantages expected from the cheapness and convenience of it had
not been realized. But it is conclusive that a case withdrawn is in
effect a verdict set aside or reversed for error, which has no further
operation. And there is in this respect no difference whether it be
general or special, as was held in Mahoney t;. Ashton, 4 Har. fy
JW'Hen. 295 ; nor can there be a difference in principle between a
verdict and a case stated ; for the legal effect must be the same,
whether the parties undertake to say the truth for themselves or put
themselves on a jury to say it for them.

But the supposed admissions of the case being actually in evidence,
the testimony of the counsel who signed it became unquestionably
competent to show, not only that his signature was gained by arti-
fice, but that the actual assent of his client was not had. A client
is doubtless bound by the legal effect of his attorney's act, whether
specially authorized or not ; but there is no adjudged case to show
that he is bound by an unauthorized concession of facts which have
lost all legal effect by being thrown open to the inspection of a jury.
iv. 2 P

314 SUPREME jCOURT [Pltlslmrgh

[M'Lughan v. Bovard.]

A mistaken concession of the client himself is open to explanation
by proof of ignorance or misconception ; and a fortiori a mistaken
concession of his counsel ought to be so by proof of an exclusive re-
liance on misrepresentations of ihe adverse counsel. For defect
of authority it was held, in Campbell v. Kent, 3 Penns. Rep. 72, that
the client was not bound even by the legal consequences of his attor-
ney's act. But the principle which governs the competency of alle-
gations in a chancery bill comes still nearer to the point. These
operate sometimes as admissions. " If no proceedings have been hud
on the bill, the allegations which it contains will not operate as evi-
dence against the plaintiff, by way of admission, unless his privity be
proved. But if the privity of the plaintiff can be established, the bill
will be evidence against him, though the facts were suggested for
the purpose of discovery upon the surmise of counsel." Starkie's Ev.,
part 2, p. 286. On this principle can it be doubted that the testimony
of the counsel was competent to prove want of privity of his client,
in a case stated on which there had been no further proceeding 1
Had judgment been rendered on it, the facts conceded in it might,
undoubtedly have been introduced to affect him like facts found in a
special verdict. But even had it not been withdrawn, the order to
set it aside could not have been considered as a proceeding on it, but
on the rule to show cause. The rejected part of the testimony ought
to have been received.

The exceptions to the charge are founded on facts supposed to
have been sustained by ihe case stated as prima facie evidence of
them; the law arising out of which, as the same facts may be again
before a jury on other evidence, it is necessary to decide. The facts
appeared thus. The defendants procured a draft for the amount of
the judgment, drawn at sight by Campbell, a stranger, on Whiting,
another stranger, and in favour of Bovard, a defendant, who indorsed
it to Hill, then the beneficial owner of the judgment; which being
accepted but not paid when presented, was returned. It was, how-
ever, again delivered to Hill by Parker, another defendant, with a
new acceptance; after which it was given np for the acceptor's pro-
missory note at sixty days, payable to Hill. The most important
assertion of fact in the case staled is, that the note was taken with-
out the knowledge or consent of any one of the defendants ; yet in
Hill's receipt to Parker, filed by the defendants as a credit on the
original judgment, and made part of the case, it is expressly asserted
that the note was delivered to him by Parker. In this particular the
truth is, the case is inconsistent with itself. Hill subsequently dis-
counted the note with Towne, who holds it unpaid; and Hill de-
mands the amount of it from the defendants, who incision it as
absolute payment. Nothing is clearer than that if Hill gave up the
draft against or without, the consent of the defendants, he made
the note taken in lieu of it his own, and the jury were so instructed;
but if all was done with their acquiescence, then other questions arise
in respect to Hill's supposed liability to the consequences of the

Sept. 1835.] OF PENNSYLVANIA. 315

[M'Lughan v. Bovard.]

drawer's insolvency. The judge charged that it was his duty not
only to give notice of dishonour, which, viewing the transaction as an
ordinary business one, it was said he had not done in time, but to place
the defendants in the situation they held when the note was drawn,
by offering to give it up lo them, or endeavouring to enforce pay-
ment of it by the drawer, if he were not desperately insolvent ; and
that failing to do so, he would be guilty of negligence.

The correct law of the case is free from doubt or difficulty. A
note or bill taken in satisfaction of a precedent debt, imposes no fur-
ther duty on the creditor than to use reasonable diligence in obtain-
ing payment or acceptance by presenting it in season, and giving
notice of its dishonour to the debtor from whom it was had, if he be
a party to it. Smith v. Wilson, Jlndr. 187. But where, as here, the
debtor is not a party to it, even want of notice is immaterial unless
he has sustained actual loss from it. Chitty on Bills 98. It would
therefore be clear, on the facts stated, that, the plaintiff had done at
least, all that the law exacted of him. It was the business of the
defendants, having notice, to pursue the drawer themselves ; the
most they could claim of the plaintiff being the use of his name as a
trustee. That the note was in the hands of a broker presented no
obstacle to a suit by them in his name, and imposed no other duty on
him than to produce it when called for. Even had notice not been
given, he would have been responsible but for consequential damage;
and in both these aspects the direction was erroneous.

If, however, the plaintiff were liable for laches at all, the measure
of his liability would seem, from Harvey v. Turner, 4 Rawle 223, to
be the nominal and not the actual value of the note. This question
can scarcely arise again, as the turning point will probably be the im-
puted agency or acquiescence of the defendants in the substitution of
the note, which can affect them at all only by showing that it was
not received as payment, but on account.

To the direction to find for the defendants generally if laches were
proved, there was no exception at the trial ; and the error, if there
were any, is not to be made the subject of assignment here. Nor, as
the case stood before the jury, was it destitute of evidence to disprove
the existence of a balance. In the case stated, the draft is expressly
said to have been for the amount due, and that Hill gave it up for
Whiting's note for the money, that is, for the money due on the
judgment. The existence of a balance seems not to have been in
contest ; and it is not our business to rejudge the cause on its merits.
As it goes to another jury, the parties will have an opportunity to
inquire into the fact afresh ; and the same remark is predicable of
the supposed error in submitting the question of extinguishment with-
out evidence to raise it.

In like manner the refusal to allow the plaintiff to suffer a non-
suit, has become unimportant in the particular cause, though, as the
point was directly made below, and is insisted on here, it is our busi-
ness to decide it. " Whenever," says the statute by which the right

316 SUPREME COURT [Pittsburgh


[M'Lughan v. Bovard.]

is regulated, " the jury shall be ready to give in their verdict, the
plaintiff shall not be called ; nor shall he then be permitted to suffer
a nonsuit." When are the jury thus ready 1 They are ready, in
one sense, as soon as they are agreed ; but it would scarcely be pre-
tended that the right is detenninable by a criterion so uncertain, and
of such difficult ascertainment as the point of time when they be-
came so. The court is supposed to be uninformed of what is pass-
ing in the jury-room, and cannot regulate its action by what hap-
pens there; neither can it know that the jury are agreed when they
are on their way to the courthouse, or even when they have en-
tered the hall or box, for juries often return for further direction :
and to inquire by affidavit into the exact point of time when they
arrived at their, conclusion, would be replete with confusion. But
they may not be ready even when they are agreed ; for they must
repair to the box, be counted, and signify their readiness. The
right of the plaintiff, therefore, ceases only when, in reply to the
usual inquiry of the prothonotary, they have officially announced
their readiness to the court. But the matter is not governed exclu-
sively by considerations of abstract reason or convenience. The
point of time indicated by the words of the statute, " the plaintiff
shall not be called," was that at which, by the practice in force when
it was passed, the plaintiff was demandable ; which was the instant
before the verdict, and it is to this that the words " nor shall he then
be permitted to suffer a nonsuit," have relation : consequently his
right is unimpaired till then. It is, perhaps, not important when
it terminates; is highly so that the period of its termination
be marked by some definite point of time, susceptible of such cer-
tainty as will prevent cavil ; for which purpose, none is so practica-
ble in its application as the one which seems to be indicated by
the very words of the statute. What the effect of a nonsuit would
have been at the trial, is not now to be determined, it being sufficient
for the occasion to say the plaintiff was not precluded by the statute.

Whether the court, consisting as it did of the president alone, had
competent jurisdiction, or whether the interest of the associate
judges, which disqualified them from sitting, made the case an
exception to the positive directions of the act of special constitution,
which require at least one of the associate judges to be joined with the
president, is a difficulty which it is at present unnecessary to resolve,
as the parties will doubtless procure a private act to remove it. If
forced to dispose of it by construction, we would probably hold the
president to be competent in order to prevent a failure of justice. A
construction so violent, however, could be justified but by an extre-
mity which may not occur, as the legislature would doubtless inter-
pose ; and it is sufficient to refer the parties to that body in I he first

Judgment reversed, and a venire de novo awarded.

Sept. 1835.] OF PENNSYLVANIA. 317

M'Kellip against M'llhenny.

A defendant having given the plaintiff a notice to produce a paper material
to the issue, which he refused to do, although in his possession, may give parol
evidence of the contents of it.

In an action for a nuisance in flowing water back upon the land of the plain-
tiff, by means of a mill-dam, it is competent for the defendant to establish a
parol license, from a former owner of the plaintiff's land, to erect the dam and
flood his land.

A parol license from the known agent of a foreign land company, to erect a
mill-dam, and flow the water back upon their lands, may be given in evidence
in an action for a nuisance by a purchaser from the company.

A parol license to erect a mill-dam, by which the lands above will be covered
with water when executed, is binding upon all subsequent purchasers of the
lands affected : such license may be revoked before its execution, but after it, is

In an action for a nuisance in the erection of a mill-dam, by overflowing the
plaintiff's land, his declarations, or those of any former owner of the land made
while he was the owner, respecting the defendant's right to do BO, may be given
in evidence by the defendant.

The acquiescense of all preceding owners of land, overflowed with water by
reason of the erection of a mill-dam in the stream below, is to be taken into the
computation, in order to raise the presumption of so long an acquiescence as
would bar a present owner from a recovery in an action for a nuisance.

ERROR to the common pleas of Armstrong county.

Robert M'llhenny v. Archibald M'Kellip. Action on the case for
a nuisance. The facts which gave rise to the several points in this
case are fully stated in the opinion of the court.

Bujfington and Coulter, for plaintiff in error.
Stannard and White, for defendant in error.

The opinion of the Court was delivered by

KENNEDY, J. M'Kellip, the plaintiff in error, was the defendant
below, and it appears from the evidence that he and the plaintiff
below severally owned a tract or parcel of land, adjoining to each
other, lying on a stream of water called Pine Run, which runs through
both tracts. The land belonging to the plaintiff below lies above
that of the defendant on the stream. These parcels of land were
purchased originally from the state by an association of persons known
and called by the name of the Holland Land Company. The legal
title for that part of the plaintiff's land in which he alleges he has
been injured by the acts and conduct of the defendant, as also for
the whole of the defendant's land, was at one -time vested in Paul
Busti, in trust for the company, for whom he acted as a general
agent, and was known for many years to exercise unlimited power

313 SUPREME COURT [Pittsburgh

[M'Kellip v. M'ilhenny.]

in disposing of their lands. The land thus holden in trust by Busti,
was conveyed I)} 7 him to Benjamin B. Cooper, from whom the plain-
tiff and defendant, respectively, as the defendant offered to show,
derived their several rights or claims to their respective adjoining
lands. This also would seem to be inferable from the evidence given
in the cause ; because the plaintiff read in evidence a patent from the
s'ate to Paul Bnsti for nine hundred and ninety acres, surveyed on
warrant No. 3062, and a deed executed by Paul Busti, conveying
the same to Benjamin B. Cooper, who by his deed given in evidence
by the defendant, conveyed two hundred and eighty-four acres one
hundred and twenty-five peiches thereof to the defendant; and who
also, by articles of agreement made with James Brady, as appears
by the testimony of David Lawson and John C. Corbet, Esq., sold
part of the residue, adjoining that conveyed to the defendant, to
James Brady, who assigned his right of purchase under the articles
of agreement to the plaintiff; by means whereof he obtained a con-
veyance for the same from Benjamin B. Cooper, executed by C. C.
Gaskill his attorney in fact, who was also the attorney in fact of J.
J. Vanderkemp, the person from whom the plaintiff got his title by
deed of bargain and sale for the residue of his land. This is a brief,
but I believe, a correct statement of the facts and evidence in rela-
tion to the titles of the parties to their respective lands, so far as I
have been able to collect it from the paper book furnished, which
presents the case but indistinctly.

The first error assigned is, that, the court below erred in rejecting
the evidence offered by the defendant as set forth in the various bills
of exception, amounting to eleven in number.

As to the first, the defendant after having given evidence showing
that the attorneys of the plaintiff had in their possession certain arti-
cles of agreement made between Benjamin B. Cooper by his attor-
ney in fact David Lawson of the first part, and James Brady of the
second part, whereby the first, as it is alleged, sold to the latter the
land in which the plaintiff complains he was injured, which articles,
by indorsement made in writing on the back thereof, were assigned
by Brady, together with his interest in the land thereby agreed to
be sold, to the plaintiff; and having shown, likewise, that a notice
had been served on the plaintiff a reasonable time beforehand, to
produce the articles of agreement with the indorsement thereon upon
the trial of the cause, who declined to produce the same offered to
give parol evidence of the execution and contents thereof: to which
the plaintiff's counsel objected, and the court overruled the evidence.
It does not appear upon what ground it was that the court rejected this
evidence, nor can I form even a conjecture of it. In connexion with
the other evidence offered to be given on the part of the defendant,
it was certainly very material to the issue, and the defendant un-
questionably showed that he had done all that the law required of
him to entitle him to give the secondary evidence offered. It was
proved distinctly that the originals, which were doubtless the best

Sept. 1835.] OF PENNSYLVANIA. 319

[M'Kellip v. M'llhenny.]

evidence of what they were, were in the hands of the plaintiff's
counsel at a former trial of the cause, and being writings which be-
longed to the plaintiff as part of the muniments of his tide to his
land, the conclusion clearly was that he could have produced them
if he had pleased ; so that there was no ground for rejecting the evi-
dence offered, because the best evidence of I he matters proposed to
be proved was not produced. Nor can it well be,I think, that the
court rejected the evidence offered because (he leiter of attorney au-
thorizing David Lavvson to execute the articles of agreement on be-
half of Benjamin B. Cooper, was not produced and proved ; because
that was offered to be done afterwards and rejected by the court,
which gave rise to (he third bill of exception*. Being able, then, to
perceive no good reason why the evidence in this exception was
overruled by the court, we think that they erred in doing so.

The second bill of exception was to the opinion of the court in re-
jecting a letter of attorney from Paul Busti to Daniel Lawson, dated
the 19th of August 1811. If this were the only error assigned in
the case, I am riot satisfied that the judgment of the court below
ought to be reversed on account of it, for I am not able to discover
clearly that it could have had any material bearing on the cause:
still, as Paul Busti appears to have been invested with the legal title
lo the land of boih parties, and was known to exercise all the power
over the lands of the Holland Company that ownership itself could
give, at the date of this letter of attorney; it might have had a very
important bearing on the cause, if Lawson had under it given to the
defendant leave to build his mill-dam originally in the manner he
did. This, however, does not appear from the paper book to have
been the purpose for which it was offered; nor does it appear dis-
tinctly for what end it was proposed to be read in evidence; and
therefore we cannot say there was error in rejecting it.

The third bill of exception was to the opinion of the court in re-
jecting the letter of attorney of Benjamin B. Cooper to David Law-
son. If (he execution of this letter of attorney was either offered |o
be proved by the defendant's counsel, or admitted by the plaintiff or
his counsel, the court below ought to have admitted it to be read in
evidence; because it would have shown David Lawson's authority
as the attorney in fact of Benjamin B. Cooper, for encouraging the
defendant to go on and expend money in improving and maintain-
ing his mill and dam.

The fourth bill of exception was for rejecting the defendant's offer
to prove by David Lawson that he never had any other power of
attorney emanating from the Holland Land Company than the one
from Paul Busti. Not being able to perceive the relevancy of this
evidence to the issue, we cannot say that the court erred in reject-
ing it.

The fifth bill of exception is to the rejection of the defendant's offer
to prove by David Lawson that he, as the attorney in fact of Benjamin
B. Cooper, wilhin a year after the date of the deed from Paul Busti to

320 SUPREME COURT [Pittsburgh

[M'Kellip v. M'llhe'nny.]

Cooper, granted to the defendant the privilege of continuing and
keeping up a dam in the place where it then was; that Cooper
had a number of tracts of land in the same neighbourhood, and that
the act of L'.uvson in thus granting this privilege to the defendant
was approved of by Cooper himself afterwards ; and that M'llhenny,
the plaintiff, was informed of it and assented to it also. This evi-
dence, in connexion with the other testimony offered by the defend-
ant and rejected by the court, some of which would have tended to
have shown that the privilege of building the dam was granted ver-
bally to the defendant before he erected or constructed it, was ad-
missible under the peculiar circumstances of the case, in order to show
a confirmation of the original grant, and that all concerned were

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 4) → online text (page 37 of 60)