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The cause had been once tried before, and was removed to the su-
preme court by writ of error: while there pending, the plaintiff below
entered a rule to take depositions, to be read in the event that the
judgment should be reversed and a venire de novo awarded. The
depositions were objected to on this trial, on the ground that when
the rule was entered in the court below, the cause was not pending
there; but the court (Shippen, president) overruled the objection.
The plaintiff offered a grand juror as a witness to prove that Huide-
koper was the prosecutor of the indictment ; the competency of the
witness was objected to on the ground of the capacity in which he
received the information that he was called to testify to ; but this
objection was also overruled, and the witness was sworn. The de-
fendant offered in evidence the notes of the testimony of witnesses,
taken by the magistrate who issued the warrant, to establish proba-
ble cause for the prosecution ; this evidence was objected to as in-
competent, the witnesses themselves being alive and within the
jurisdiction of the court ; this offer of evidence was rejected. The
trial closed on Saturday, the jury rendered their verdict on Sunday
morning, and the judgment was entered on Monday. This was
assigned for error, and also the rejection and receiving the evidence
as stated.

Galbreath, for plaintiff in error.
Thompson, for defendant in error.

The opinion of the Court was delivered by

HUSTON, J. This was an action for a malicious prosecution. An

Sept. 1834.] OF PENNSYLVANIA. 67

[Huidekoper v. Cotton.]

indictment had been presented against Cotton, on a charge of shoot-
ing at Huidekoper with a rifle with intent to kill him, and wounding
his horse. The grand jury returned the hill "ignoramus," and Cotton
instituted this suit. It was removed to this court once hefore, and a
venire de novo awarded. During the time that the record was in this
court, the plaintiff below entered in the common pleas a rule to take
depositions, &c., to be used if the^ cause should be tried again on a
venire, and took sundry depositions in pursuance of this : these depo-
sitions were objected lo, because the rule was entered in the common
pleas, while the record was in the supreme court. They were ad-
mitted, and exception taken. This bill of exceptions ought not lo
have been taken in the court below, nor have been brought here.
The act of the 26th of March 1827 provides expressly for entering a
rule and taking depositions in such a case. It is a good and conve-
nient law. The action remains slated on the docket, and it was
wise to provide that a person should have the power of perpetuating
his testimony, while his cause was pending any where.

The depositions of the foreman and some of the grand jurors were
offered to prove who was the prosecutor. The court admitted the
testimony, rejecting such parts as staled the opinion of the witnesses.
This was objected to, as being contrary to the oath of the grand juror
and the policy of the law. The court overruled the objection, and
another bill of exceptions was sealed. That part of the grand juror's
oath, "the commonwealth's counsel, your fellows', and your own,
you shall keep secret," has been the subject of much observation and
some misconstruction. It was framed in another country, and dur-
ing a state of society different from that in which we live. A pow-
erful and disorderly baron once came with his armed followers and
took the judges off the bench in York, and kept them prisoners in his
castle some weeks. In such times it might have been dangerous to
a witness to have it known that he gave evidence before a grand
jury against such a chieftain. Bills of indictment are sent to a grand
jury, and presentments are made by them, before the culprit is ar-
rested, and they are not permitted to give information of this, so that
the accused may escape. It is not allowed that they should disclose
who agreed to find the bill, and who did not agree. I shall not un-
dertake to specify every matter which is embraced by these words.
That part of the oath, us well as the whole of the proceeding, was
intended to punish the guilty, without risk to those who, in perform-
ance of their duty, took a part in the proceeding; but it never was
intended to punish the innocent or obstruct the course of justice.
So far from being the policy of our law that a prosecutor, however
groundless the charge, should escape; directly the reverse is provided
for: by an old act of assembly it is enacted, that "no person shall
be obliged to answer to any indictment or presentment unless the
prosecutor's name be indorsed ;" and so far is our law from forbid-
ding the grand jury from disclosing the name of the prosecutor, that
it is provided by the act of the 8th of December 1804, that in all
in. H

58 SUPREME COURT [Pittsburgh

[Huidekoper v. Cotton.]

indictments, cases of felony excepted, the grand jury, when they
return a bill " ignoramus," shall decide whether the county or the
prosecutor shall pay the costs ; and if they return that the prosecutor
is to pay the costs, they shall name who is the prosecutor. It would
seem then impossible to decide that, to be against the oath of a grand
juror, or against the policy of the law, which is, by enactment of the
legislature, a part of the duty of the grand jury.

In England also a grand juror may be examined to prove who was
the prosecutor. Selwyn's JV*. P. (by Wheaton) 815.

At the time when Cotton was first arrested and bound over, several
witnesses were examined in addition to the oath of Mr Huidekoper.
Notes of their testimony were taken, and of the cross-examination :
it was proved that these notes were taken as the testimony was given,
and the defendant's counsel offered to read them, to show probable
cause; they were objected to, overruled, and exception taken.

The witnesses were in full life and within reach of the process of
the court, and had not been subpoenaed to attend.

It is then no more nor less than examining a man atone court, and
at a subsequent hearing calling, not the same man and swearing
him, but calling a by-slander to prove what was before sworn. Bui
there was another and fatal objection: the paper offered did not pur-
port to be the words of any witness; it consisted of abbreviations and
short abstracts of sentences; prepositions, adverbs and conjunctions
generally omitted ; impersonal verbs much used ; verbs without any
nominative, and nouns without, verbs ; in short, though correct as
notes, from which the writer might refresh his memory and give a
correct statement of what the witness said, yet, taken as written, it
was uncertain, and much of it totally unintelligible to a stranger.
The notes of testimony is an expression which is applied to very dif-
ferent matters. In our ordinary trials, the witness, after uttering a
sentence, is silent until it is written down, and then proceeds with
another sentence. What is thus written, is often the very words of
the witness, and is more like a deposition than notes ; though it is
called the notes of the testimony, and when written by careful coun-
sel, and properly sworn to, has been received to prove what was said
by a witness who is dead or gone out of the jurisdiction of the court.
What was offered in the present case was a different matter an ab-
stract of each sentence; and though perfectly intelligible to the wit-
ness and to him who wrote it at the time, it was not so to any other
person. These notes might have enabled the writer, by recurring
to them, to have given a pretty full and correct account of what the
witness swore; but the writer was not offered as a witness for this
purpose, and the notes were rightly rejected.

The next bill of exceptions was to the overruling some notes of-
fered for another purpose and no error in it.

The last error assigned does not in fact appear on the record ; but
the judge has stated the fact, that it may receive the consideration
of this court. The jury was sworn on Thursday ; the trial continued

Sept. 1834.] OF PENNSYLVANIA. 59

[Huidekoper v. Cotton.]

until Saturday after dark, when the jury retired to make up their
verdict. They did not agree for some time; and the verdict was
given in about, five o'clock on Sunday morning. The judgment on
that verdict was rendered on Monday. It is contended that all is
erroneous or void because the verdict was given in on Sunday.

I can say for myself, and I believe for the whole court, that we
should be very unwilling to sanction any violation of the Sabbath.
After the charge of the court, a jury cannot separate. The objection
goes to a great length : if it is unlawful or sinful to deliver the verdict
to the prothonotary, verbally, after Sunday has commenced, I must
suppose it would be equally unlawful to write and seal it up to be
delivered on Monday; nay, to deliberate upon and discuss it after
Sunday had commenced. In some districts the practice of sealing
up a verdict and delivering it in court is general, in some it is not
usual, and is not known to the common law. Now whether it would
be less sinful, in fact and in its consequences, to keep a jury from
Saturday night until Monday morning locked up without food ; or to
permit them to give a verdict, go home and attend public worship, I
leave to casuists to discuss. However strange it may seem, it is cer-
tainly true, that Christians, for some centuries, kept their courts open
on Sundays; and this in opposition to their heathen neighbours, who
abstained from holding court on days appropriated to certain religious
ceremonies in honour of their deities, and who also had certain un-
lucky days -fasti el infasti. At length decrees of councils of the
church, and of the emperors and governments, forbade holding courts
on Sunday; but they went fuither, and included many other days
Lent and other fasts of the Catholic church, Christmas, Easter,
and several days before and after. These were many of them esta-
blished by the civil authority in England, but were never part of the
law in this state. Every denomination of Christians in our country
has its own regulations for its own members ; but we have no gene-
ral ecclesiastical law, and our courts have no power in such matters,
except what is expressly given by legislative enactments. Our
legislature in 1705 enacted, that "no person, on the first day of the
week, shall serve or execute, or cause to be served or executed, any
writ, precept, warrant, order, judgment or decree, except in cases of
treason, felony or breach of the peace ;" and declares such service
void, and the person serving it liable to an action, as though he had
acted without writ, warrant, order, judgment or decree.

In point of fact, I remember cases in the common pleas and in
the circuit courts, between 1798 and 1809, in which the jury charged
and sent to deliberate on Saturday, did not agree until after twelve
o'clock on Saturday night, and in some instances until late in the
forenoon of Sunday. In some of those cases writs of error were
taken, and in some appeal : so far as I know, the present objection
has not been taken in our courts before.

I have heard of courts sitting and counsel arguing causes on Sun-
day. I never saw it, and I would not do it.

60 SUPREME COURT [Pittsburgh

[Huidekoper v. Cotton.]

But as I saicl, we have no power in the matter but what the legis-
lature have given us : we may have our opinion of what religion
permits or forbids ; as judges we can only say, that is void which the
legislature has declared void. No law forbids the receiving of a
verdict as this was received, and usage sanctions it.

Judgment affirmed.

Campbell against Shrum.

The purchase of a tract of land by agreement under seal, " subject to the pay-
ment of the purchase money and interest" due to a third person, is a covenant
by the vendee to pay such purchase money and interest, upon which an action
may be maintained in the name of the vendor for the use of him to whom it is

A subsisting mortgage on the land by the vendor, to secure that purchase
money which the vendee had thus covenanted to pay, would not prejudice the
title tendered by the vendor to the vendee before suit brought.

A notice to take depositions, is rightly served by leaving a copy of it at the
dwellinghouse of the party with his son.

ERROR to the common pleas of Jllleghany county.

This was an action of covenant by Henry Shrum for the use of
Thomas Astley against Robert Campbell. On the 2d of January
1805, Thomas Astley and James Gibson sold, by articles of agree-
ment, a tract of land to Henry Shrum, the plaintiff. On the 27th
of September 1814, Henry Shrum entered into an agreement, under
seal, with Robert Campbell, to convey to him the same land, in con-
sideration of the sum of 341 dollars and 75 cents, "subject to the
payment of all the purchase money and interest, now due on an arti-
cle of agreement between Thomas Aslley and James Gibson of the
one part, and the said Shrum of the other part, dated the 2d of Janu-
ary 1805." On the 1st of August. 1821, Shrum executed a mort-
gage to Gibson to secure the balance due on his purchase. Campbell
being in possession under his purchase, Shrum procured the legal
title from Astley, who was invested with Gibson's interest, and made
a tender of it to him, and demanded the payment, of the money due
to Astley, which Campbell refused to pay, and this action of cove-
nant was brought to compel the payment. The defendant pleaded
non estfactum and covenants performed. On the trial ihe plaintiff
offered in evidence a deposition, taken upon a notice, a copy of which
had been left at the defendant's house with his son. It was objected
to on the ground that that was not a good service of notice. The
objection was overruled and exception taken. The defendant relied
upon these positions as constituting his defence : that the plaintiff
was guilty of laches and was too late in endeavouring to enforce the

Sept. 1834.] OF PENNSYLVANIA. 6t

[Campbell v. Shrum.]

contract ; that the mortgage to Gibson was an incunrvbrance on the
land ; that he had entered into no covenant such as was set out in
the plaintiff's declaration ; that the clause in the agreement on which
the plaintiff rested his claim to recover was not a covenant by the
defendant, but a condition, which could only be enforced by a pro-
ceeding in rem.

The court below (Shaler, president) ruled all the points against
the defendant.

The jury rendered a verdict for 2446 dollars and 65 cents damages,
in favour of Shrum, to be released by the payment by Campbell of
the purchase money to Astley in one year, or by Campbell otherwise
fulfilling the contract between Shrum, and Astley and Gibson; but
no execution to issue until satisfaction was entered on the mortgage:
the deed from Shrum to Campbell to be left in court to be taken out
by Campbell upon his payment of the damages or performance of
his contract.

Fetterman, for the plaintiff in error.

An action of covenant will not lie to enforce the payment of the
purchase money due to Astley and Gibson. An action of ejectment
would have been the proper remedy. Then as to the first error as-
signed, we contend the deed from Nicholson to Cramond and others
should not have been admitted in evidence ; because no title was
shown in Nicholson, the grantor. Lessee of Peters et al. v. Condron
et al., 2 Serg. fy Rawle 80 ; Hoak et al. v. Long, 10 Serg. fy Rawle
1. Nor should the agreement between Shrum and Campbell have
been received in evidence. And here arises the principal point to
be determined in this case: whether the article of agreement con-
tained such a covenant as the one declared on by the plaintiff be-
low 1 There is an express covenant in the agreement to pay Shrum
341 dollars. This express covenant negatives any implied covenant.
But there is no covenant to pay the purchase money to Astley and
Gibson. It is true, that Campbell bought subject to that payment.
But if he did not pay Astley and Gibson, the remedy was in their
hands. They could maintain ejectment to compel payment. The
assignment of a lease, which is a case analogous, constitutes no
covenant. Salisbury v. Phillips et al., 10 Johns. 57. The case of
Beach v. Morris, 12 Serg. fy Rawle 16, was one in which the vendor
brought an action of debt against the purchaser from the vendee,
who had contracted with the vendee to pay the instalments. A
proviso does not make a covenant. 2 Mod. 36. Nor will an action
of covenant lie upon the proviso in a mortgage deed. Drummond's
Administrators v. Richards, 2 Munf. 327; Bristoe v. Knipe, Yelv. 206;
Waldo v. Hall, 14 Mass. 486; Wheeler and wife v. Walker, 2 Cond.
Rep. 199. Suppose Campbell a purchaser at. sheriff's sale, on a
judgment, against Shrum, would his case be different? Chahoon et
al. v. Hollenback, 16 Serg. # Rawle 425. The depositions referred
to in the third error should have been rejected. There was no legal

62 SUPREME COURT [Pittsburgh

[Campbell v. Shrum.]

notice to the son of Campbell. By the thirty-eighth rule of the court
of common pleas, it is ordered that notice is to be given to the party
in person, or, in his absence, to be left with some of his family at his
dwellinghouse. Here it does not appear that the service was at the
dwellinghouse. (a) It has been held that service on an attorney is
not good, where a rule of court requires it to be on the party himself.
Nash et al. v. Gilkison et al., 5 Serg. $ Raicle 352. Nor is notice
on a party's wife sufficient, if she has not acted in the business.
Bauman and wife v. Zinn et al., 3 Yeates 157. At our bar we have
always been in the practice of objecting to the notice at the time of
the trial. In this case the trial took place in ten or eleven days after
the depositions were filed, so that but a short period intervened ; and
we cannot be charged with having taken the other parly by surprise.
The bill of exceptions was shown to the opposite counsel. In the
case of a rule and notice to take special bail, if the defendant be
absent, the notice must be left at his house in the presence of a
member of his family. This is the general rule; and we are not to
travel out of it and conjecture the manner of service. In a case in
Washington county, a deposition was, on the second trial of the
cause, found to have been taken by one of the attorneys. The court
below decided it to be inadmissible; and this court confirmed the
decision. Let the fact, however, be taken to be as it was proved at
the trial. The fourth and sixth errors were considered together.
The effect of the mortgage to Astley for the purchase money, was
still existing when the deed was tendered. It was for more than
the amount of the purchase money claimed of Campbell by Shrum.
On this mortgage Astley might sell the land. Where there are
incumbrances upon the land, the vendee has a defence pro tanto, or
to the full amount. Huber v. Burke, 11 Serg. fy Raicle 238; Poke
et al. v. Kelly, Assignee of Case, 13 Serg. <$ Rawle 165. With re-
spect 1.0 the fifth error assigned, we contend that Campbell could
rescind the contract, under the lapse of time and all the peculiar
circumstances of the case, although he had not tendered the pur-
chase money. The right of relinquishment is not affected by taking
possession. Bank of Columbia v. Hagner, 1 Peters's S. C. Rep. 468.
The vendee may disaffirm and recover back (he money he has paid,
if the vendor be unable to make tide. Judson v. Wass, 11 Johns.
525 ; Benedict v. Lynch, 1 Johns. Cha. 370 ; Ballard v. Walker, 3
Johns. Ca. 60. Interest was not recoverable. Fasholt v. Reed, 16
Serg. < Rawle 266 ; Dunlop et al. . Hepburn et al., 1 Wheat. 202.
The court charged, that at law Shrum could not recover. So far
the charge was right; but it was error to assume the exercise of
chancery powers through the jury.

Burke and Forward, for the defendant in error, were directed by

(a) On referring to the notes of the trial, it appeared that the service was at the

Sept. 1834.] OF PENNSYLVANIA. 63

[Campbell v. Shrum.]

the court to confine their remarks to the point relating to service of
the notice to take ihe depositions of John B. Wallace and others.

The record does not show that the notice was left at the dwelling-
house of Campbell ; but such was the fact, and so it was proved on
the trial. The depositions were on file for a length of time. Why
were they not objected to at an earlier period 1 The court below
very properly has a good deal of latitude in admitting papers in evi-
dence. This latitude should not be infringed upon in the present
case. The objection should have been sooner made. Carpenter v.
Groff, 5 Serg. $ Rawle 162.

The opinion of the Court was delivered by

SERGEANT, J. Ten error?, in relation to matters of evidence and
the charge of the court below, have been assigned in this court.
Several of them having been waived in the argument here, I shall
confine myself to such as the plaintiff in error has urged as material.

The main question is, whether the words of the articles of the
27th of September 1814, between Shrum, the plaintiff below, and
Campbell the defendant, constitute a covenant on the part of Camp-
bell to pay the arrears of purchase money and interest due by Shrum
to Astley and Gibson, under the agreement made between them on the
2d of January 1805. By the agreement of the 27th of September
1814, Shrum agrees to grant and convey to Campbell, his heirs and
assigns, the tract of land "under and subject to the payment of all
the purchase money and interest now due on an article of agree-
ment between Thomas Astley and James Gibson of the one part,
and the said Henry [Shrum] of the other part, dated the 2d of
January 1805 ;" after which follows a covenant by Campbell to pay
Shrum 341 dollars and 75 cents.

No particular form of words is necessary to constitute a covenant.
Whatever shows the intent of the parties to bind themselves to a
performance of the thing stipulated, may be deemed a covenant,
without regard to the form of expression made use of. Express cove-
nants may be created by words which at first view might appear to
operate rather as conditions, qualifications, or defeasances of cove-
nants. Thus an office was conveyed by the plaintiff to the defend-
ant, provided that out of the profits he should pay the plaintiff 500
pounds : it was held that the proviso was in nature of a covenant,
and not by way of condition or defeasance, and covenant would lie.
Clapham . Moyle, 3 Scdk. 108; 1 Lev. 155. So where a lease was
made to B for life, with a proviso that if the lessee should die within
the term of forty years, the executors of the lessee should have it for
so many of the years as should amount to the number of forty to be
computed from the date of the lease: this proviso was held only to
amount to a covenant. Parker v. Gravener, 2 Dy. 150; And. 19 ;
1 Co. 155, a. A case more nearly resembling the present, is the
following. A leased to B, for years, on condition that he should
acquit the lessor of ordinary and extraordinary charges, and should

64 SUPREME COURT [Pittsburgh

[Campbell v. Shrum.]

keep and leave the houses, at the end of the time, in as good plight
as he found them ; the lessee was held liable to an action of cove-
nant for omitting to leave the houses in good plight. 2 Bac, Jib.
62. (a) Here the principal consideration for Shrum's agreement to
transfer to Campbell was, that Campbell should discharge the arrears
due by Shrum for the land, and relieve and exonerate him from his
liability therefor. No one that reads this clause can doubt that the
understanding of the parties was, that Campbell agreed to do so.
Without this construction, Shrum would have been left to pay Ast-
ley and Gibson in the first instance, and afterwards be turned round
to recover upon the equitable claim for indemnity which he would
have against Campbell. Whereas it was intended, under the agree-
ment, that Campbell should pay off these arrears forthwith ; and a
breach of the undertaking on his part occurred when he omitted to
do so, for which Shrum could at once bring his action. It is no
answer on the part of Campbell to say that Shrum had not paid
Astley and Gibson, and therefore he has not been damnified; this
action is not founded on the damnification, but on the breach of cove-
nant. The amount of damages to be recovered is another question;
but if the plaintiff tendered a clear title from Astley and Gibson, I
see no reason why the whole arrears of purchase money and interest
may not be fairly recovered ; and the present verdict is sufficiently

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 3) → online text (page 7 of 62)