text:
    Sweigart v. Richards.
    A survey ivas made under a warrant in 1775, three lines of which were found to have been marked on the ground jn that year. The fourth line was shown to have been marked in 1795. To establish that as the true line against subsequent warrantees, it is competent to show that the surveyor who marked both lines received a number of surveys which he located in the neighbourhood in 1795: and his field-notes of those surveys, though not relating to the land in question, and a connected draft made by him, found in the possession of his ' family and authenticated, showing that the fourth line above mentioned was resurveyed and marked on the land in 1795, are evidence to go to the jury to show the.true line of the survey in 1775.
    To prove the handwriting of a person who had been dead upwards of forty years, witnesses may speak from a comparison with signatures and writings in family records, admitted by the family to be in such person’s handwriting; from letters in the possession of his family purporting to be signed by him; and from official documents received in the proper office, and acted upon as genuine.
    In error from the Common Pleas of Dauphin county.
    This was an ejectment to recover about forty acres of land which the plaintiff, Richards, alleged was included within the lines of a survey made on his ancestor’s warrant; and the main question was on the admission of certain evidence to establish the existence of the lines marked on the land. The plaintiff claimed under a warrant issued in 1774, and surveyed by Galbraith, and returned in 1775. At the same time two tracts adjoining on either side were surveyed and returned. The northern, eastern, and western lines were found marked on the land, but the southern corners of the adjoining tracts were twenty perches further to the south than a measurement by the draft returned would allow. Between these two corners a line was discovered partially marked (the land having been chiefly cleared), which counted back to 1795, and which the plaintiff contended was his southern line.' The plaintiff had a patent issued in 1815.
    The defendant claimed under a warrant in 1814, surveyed in 1818, for the tract adjoining plaintiff’s to the south; but he alleged that his northern line was forty perches to- the north'of the line claimed by plaintiff as the division-line. It appeared that some time before 1795, one hundred and thirty-one warrants were delivered to Galbraith, deputy-surveyor, to survey. Of these, one hundred and thirteen had been surveyed and returned, which, in connexion with the evidence subsequently mentioned, showed that the southern line of the Richards and the two adjoining tracts, as now claimed by the plaintiff, had been laid down by Galbraith as the boundary of those tracts. And the plaintiff offered to read the field-notes of Galbraith made at the survey in 1795, and a con-, nected draft of the tracts then surveyed, to show that this boundary was surveyed and marked by him at that time as the boundary between the Richards tract and the tracts he then surveyed to the south of that. The admission of this evidence was the question. Carpenter, the great-grandson of Galbraith, said that he believed the field-notes to be in the handwriting of Galbraith (who died before the birth of witness), from comparison with entries in the family Bible, admitted to be his by all the family, and letters from him in possession of the family; that he received the field-notes and draft from Mr. Fisher four years before. Mr. Fisher said he received them in 1830 or thereabouts; that he was counsel for the heirs of .Galbraith, and the notes and draft were used as evidence in a controversy between thetíi and one Elder, before the board of property. Rehrer said he had been employed in the land-office for fifteen years, and, judging from the returns to warrants made by Galbraith, these papers were in his handwriting; that, warrants for one hundred and eighteen of the tracts upon the connected draft were filed in the office. Col. Crain said he had been forty years in the land-office; that he had never seen Galbraith write, but judging from returns in the office and letters from him, he believed the papers were in his handwriting.
    The defendant objected to the warrants for the tracts, contained in the connected draft, because they did not apply to the land in question; and to the field-notes and draft, because they were not official, but found in the possession of individuals, and not in the offices, and had never been returned to the land-office. The court permitted them to be read to the jury.
    It was proved that there was a line marked in 1813, which the defendant contended was the true boundary-line; and this question was left to the jury on the evidence.
    There was also evidence that plaintiff had pointed out to various persons the line now set up by defendant as his southern boundary; but there was no evidence of his having done so to defendant, before his purchase, or that he purchased on the faith of those representations. The court said this fact alone would not conclude him. ' -s
    Another point was made, which was answered affirmatively; the facts, however, being left to the jury. .

      Alriclcs, for plaintiff in ejfror,
    on the admission of the evidence cited: 3 Yeates, 587; 6 S. & R. 221; 14 lb. 372; 8 lb. 392; 4 W. 247, 264; 1 Penn. Rep. 74; 2 lb. 384; 5 W. 223, 524; 1W. & S. 166; 5 Barr, 77; 4 W. & S. 348; 13 S. & R. 123; 6 Binn. 39; 4W. & S. 323; 4W. 263.

      Msher, contó:
    5W. 209; 8 lb. 81, 103; 7 W. & S. 458; 2 Rawle, 141; 7S. &R. 312; 3W.466; 7 lb. 91; 1W.&S.6; 7W. 91; 1W. & S. 168; 4S. & R. 62; 2 Binn. 169; 5 S. &R. 215; 4 W. 261; 13 S. & R. 113; 2 Barr, 43.

      July 3.
   Coulter, J.

The first error assigned is in admitting the evidence contained in defendant’s bill of exceptions. The evidence is a connected draft of a number of surveys, purporting to have been made by Bartram Galbraith, deputy-surveyor of the district, and the field-notes of the said surveys, and a large number of warrants on which the surveys were made.

It was proved that-these field-notes and the draft had been produced before the board of property, as evidence in a controversy between the heirs of Galbraith and Thomas Elder, and afterwards returned to Adams Eisher, Esq., counsel for Galbraith’s heirs, and by him delivered to James C. Carpenter, grandson of Galbraith, who was examined as a witness in the cause. Other testimony, given to prepare the way for the introduction of these papers as evidence, which is on the record, will, I presume, be fully set out by the reporter.

The draft, field-notes, and accompanying warrants, were offered in evidence, for the purpose of showing the southern boundary of the Rittenhouse, Richards, and Bull tracts; under one of which— the Aquila Richards tract — the plaintiff claims. The evidence was objected to, because the draft and field-notes were not sufficiently proved, and because the warrants did not apply to the land in dispute. It is necessary to observe, before considering the objection, that a survey was made on the Aquila Richards warrant, in 1774, and returned into the land-office in the same year, and a patent granted by the commonwealth to the plaintiff, for the same land, on the 24th July, 1815. The dispute, in this case, arises out of the uncertainty of the southern boundary of this tract, and will be determined by the true and accurate location of that boundary. The title to lands cannot be acquired or established by unofficial diagrams, drafts, or surveys. But such papers may often be extremely useful in fixing and designating doubtful boundaries. It has been an ancient custom of the courts to receive them in evidence for what they are worth, in illustrating a question of boundary. Thus, in the case of McCormick v. McMurtrie, 4 Watts, 192, it was ruled, that the field-notes and other official proceedings of a deputy-surveyor may always be given in evidence* to explain his acts; and in the case of Nieman v. Ward, 1 W. & S. 82, it was ruled that reputation and hearsay is such evidence as is entitled to respect, in a question of boundary, where the lapse of time is so great as to render it difficult to prove the original landmarks. In Payne v. Croft, 7 W. & S., it was decided that the field-notes of a deputy-surveyor were competent as evidence of boundary, and also that a connected draft, certified from the land-office, was competent evidence for the same purpose. A connected draft from the land-office is usually the work of a clerk, and derives all its value from the juxtaposition of the different surveys. But the ■ same work done by the original surveyor, if genuine, would seem to be a surer and more perfect guide as to boundary. Were, then, these field-notes and this connected draft the veritable work of Bartram Galbraith, the deputy who made the surveys, and returned the survey under which the plaintiff claims ? The papers have been produced here in court, and wear on their face the strongest appearance of authenticity and antiquity. They are covered with the rust of time, and are written in the strong, legible chirography which distinguished public surveyors and other public officers seventy years ago.

James C. Carpenter, the grandson of Bartram Galbraith, in whose possession these papers were, states that his grandfather died in 1804, from which the difficulty of obtaining the testimony of persons who have seen him write, will be at once perceived. But the witness, Carpenter, swears with undoubting confidence, that the field-notes and the draft with it, writing and figures, are the proper handwriting of Bartram Galbraith, the deputy-surveyor. He says he knows it from his writing in the family Bible, which is the family record, and which all his descendants regard as his genuine writing, and from many letters in the possession of his mother, written by Bartram Galbraith, her father. It is true that this court have decided that the witness who testifies from a comparison of handwriting must have the highest evidence of the authenticity of the standard paper, which would usually be that of some person who had seen the person write it, or evidence of equal authority. Now it appears to me that the family record, admitted and received by all the descendants as his genuine handwriting, is of as high authority and verity as a standard or test, as the evidence of a person would be who testified to the standard paper from having seen it written. In addition to this, there is the evidence of Richard M. Crain, who has been in the land-office for forty years, and who, from having seen the rStums of surveys of Bartram Galbraith, and his letters, all which are recorded at the capitol, and the foundation and evidence of numerous titles received and accepted in the land-office as his genuine writing, testifies to his belief that the field-notes and draft are in the proper handwriting of said Galbraith. And also the testimony of Thos. J. Rehrer, who has been in the land-office for a long time, to the.same effect.

In the judgment of this court, the papers were sufficiently authenticated to go to the jury as evidence on the question of boundary. The applicability of the warrants, and their juxtaposition to the land in dispute, was a matter of fact to be determined by the jury from the evidence, and not a matter of law to be ruled in the first instance by the court. They were also competent evidence for the same purpose, connected with the field-notes and drafts of Galbraith, who made the surveys.

The lines run and marked on the ground are the true survey; and although all the lines may not be found on the land, yet if the body of the lines are there, corresponding in data with the survey returned, the survey is valid, and authorizes a presumption that the other lines were actually run and marked, but have been effaced by time or tempest. But still more strongly are those lines good, if they have been resurveyed and marked before any intervening right accrues, which was done in the case in hand. The testimony fully proves that the survey made by Galbraith on the warrant under which the plaintiff claims, was made in 1774, and returned into the land-office, and is well marked round a considerable portion of the tract. But lines of that date are not found on the southern side, where the dispute about the boundary occurs. It appears, from the evidence, that a number of warrants were put into the hands of Galbraith in 17jf5, upon which he made surveys in that year, and above one hundred of these surveys are regularly returned into the land-office. Adopting the exact distance returned in the survey of 1774, the southern boundary of the tract in question would be near where the defendants below allege it to be, but where no marks are found on the ground, except those made by direction of the defendants, between twenty and thirty'years since. It is this circumstance which gives the field-notes and draft importance in the cause. In 1795, Galbraith, the same surveyor who made the survey of 1774, in making the surveys on the warrants put into his hands in 1795, conformed to the southern line of the tract in question, as we may presume he had run it in 1774, and then re-marked the line, which marks are still on the ground, although those of 1774 on that line have not been found. These marks were not discovered by the surveyor who made the survey under which the defendant claims. In 1815 or 1816, the mode he adopted to fix the southern boundary of the survey in question, on Galbraith’s survey, was to run the exact length of the lines from the north, and allowing two perches over, fixed there the line under which the defendant claims, and which he alleges is the true southern boundary of the Richards tract. The return of survey of 1774 and the patent corresponds, in course and distance of the southern boundary, with the survey made by Galbraith in 1795. And the returned survey and patent- correspond with the Galbraith south line, as found marked on the ground, with this exception, that the distances in some of the lines leading down to this southern or black line, as it has been called, require to be lengthened beyond the perches mentioned in the patent. But this is a circumstance so common in the early surveys, as to be of itself of small moment; The purchaser of land from the commonwealth, is bound to take notice of the lines on the ground, because they are the true survey.

There is not much force in the argument ingeniously urged by the counsel for the plaintiff in error, that the field-notes and draft of Galbraith were not returned to the land-office so as to affect purchasers from the state with notice. But if two or more witnesses belonging to the ancient days of the commonwealth had been, found who were present at the survey of 1774, and testified that they saw Galbraith run the southern boundary of the tract, and testified to its location, by marked trees or stones, which time had obliterated, that evidence would not be of record, yet who could doubt its competency as evidence of boundary ?

The court correctly instructed the jury that the true evidence of the boundary of the land was the survey made on the ground; and as affording some evidence, at least, of where that boundary as surveyed by Galbraith in 1774 was, the papers were properly received in evidence and commented on by the court.

The fifth and sixth points of the defendant below, relate to a> different aspect of the case, the answers to which are assigned as error.

Several of the witnesses testified that the plaintiff Richards had stated to them, that when he first went on the land, he thought the line marked by.the survey of the defendant below, in 1816, was his southern line, but he did not know where the true line was. The court were requested to charge the jury that they could not ’ go over that line, but must ■ consider it admitted as the true line.

If two persons whose surveys adjoin, dispute about the true boundary between them, but in order to settle the controversy agree upon a line, and mark it as the boundary between them, and take possession accordingly, such line would be good and valid though established by parol. But nothing of that kind existed in this case. The mere declarations of an individual, who professed to be uninformed on the subject, that he believed the line to be at such a place, were of no moment, unless it had been shown that the defendant, in consequence of these declarations, and relying upon them, had purchased the land in dispute. In such ■category they would require a more particular consideration.

In answer to the defendant’s sixth point, the court charged the jury, that if the facts were as assumed in it, they instructed them :that it was true, and they answered affirmatively. But the court ' tell the jury that they must take the whole evidence into considera- ■ tion, and pointed their attention to various facts and circumstances in the testimony; and formally state the law correctly on this point, as follows: “If, however, you are satisfied from the evidence that the plaintiffs encouraged them (the defendants) to expend their labour on this land, as contended for by defendants, then to that extent (the extent of the land cleared in the Galbraith line), the plaintiffs are precluded from recovering.”

We perceive no error in the record prejudicial to the plaintiff in error.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Etter v. Bailey.
    "Where a debtor lias deposited goods with the agent of his creditor in satisfaction or as a security for his debt: ho is a competent witness for the creditor in an action against the agent for the value of the goods sold by him.
    An unauthorized sale of goods by an agent, is a conversion which renders him liable in trover without a demand, and forfeits his right to a previous tender of the storage.
    "Where there are joint creditors, and a delivery of goods to an agent for one of them as a security for the debt: he can maintain a separate action against the agent for converting them.

      In error from the Common Pleas of Dauphin county.
    Trover for certain stoves received by Etter for plaintiff, and sold by him.
    The first question was the competency of Vanhorn as a witness for plaintiff.- It was proved that Bailey and Updegrove had recovered a judgment against Vanhorn and another; and that, upon their delivering the stoves now in question to Etter, as security or in satisfaction of the debt, Bailey had stayed further proceedings. There was also evidence that Bailey had admitted the receipt of the stoves in satisfaction; and the court then admitted Vanhorn to prove the delivery of the stoves to Etter for Bailey, and the sale by him.
    The court told the jury, that if the stoves were sold without authority, the defendant was liable for their value.

      Alricks and McClure, for plaintiff in error.
    The witness was interested to discharge the debt. The action could only be maintained in the joint names of Bailey and Updegrove; and there could be no recovery until a demand and tender of storage and expenses.

      JPisTi&r, contrd.
   Per Curiam.

The action is brought against the plaintiff’s agent, on the ground that he had received the stoves for the plaintiff, either as satisfaction of the debt due by the witness or as collateral security for it; and the fact that he had received them, either as the one or the other, was not denied. It was proved, even by the defendant’s own witness to the question of interest. But if the defendant sold them either for the plaintiff or on his own account, the debt was so far discharged; and the debtor would be called in for no more than the residue of it. In all besides, therefore, he was a competent witness.

The sale or barter of the stoves was a direct conversion of them, which superseded the necessity of demand and refusal, which is merely evidence of it. Nor was the defendant entitled to storage, having forfeited his right to retain for it, by having dealt with the property as his own. As to the parties to the action, it would seem, from the whole transaction, that Bailey was the beneficial owner of the note; and that Updegrove, of whom we have heard nothing but that he was one of the original payees, had ceased to have an interest in it. That Bailey had it in possession, and treated it as exclusively his own, without interference by Updegrove, might rebut the presumption of joint ownership from the names of the payees; and if there was a doubt on the subject, the defendant ought to have prayed the question of fact, with proper instruction, to have been submitted to the jury. Indeed, it weighs much, that there was no prayer for direction of any sort, and that the objections to the recovery have suggested themselves since the trial. But, even if the debt belonged to Bailey and Updegrove, yet the delivery of the stoves to Bailey alone, through his agent, the defendant, gave him separately a special property in them sufficient to maintain an action in his name against a wrongdoer.

Judgment affirmed.


author: Burnside, J.

text:
    Miller et al. v. The Commonwealth.
    The surety for a public officer is liable for moneys collected by him for the commonwealth on the clay of the date of the bond, in the absence of evidence that they were received prior to the execution of the bond and his acting under it; though he had previously been acting in the same capacity under another bond.
    In error from the Common Pleas of Dauphin county.
    The evidence was simply this : That in July, 1839, Myers had been appointed collector of tolls for the commonwealth, and given bond. That on the 17th February, 1840, he had given the bond on which this action was brought, with Miller as surety, conditioned to account for and pay over all moneys received as tolls, &c.
    On the day of the date of the bond he received §384 from tolls. The court instructed the jury that in the absence of all evidence of the hour of the day when the bond was executed, and Myers entered on the duties pursuant to it, the defendants were liable for the amount received on that day.

      Miller and Alrichs, for plaintiff in error,
    contended, that the burden of proof lay on the plaintiff; the presumption being that the moneys were received while the former bond was in force; 2 Barr, 497; 1 Cowp. 720; 4 Shep. 181; 1 Pick. 484; 1 Met. 129; 9W. & S. 114.
    Briggs, contra;.

      June 26.
   Burnside, J.

After a careful examination of this case, and the error assigned, we are all of opinion that the charge of the court was correct, and affirm the judgment, for the reasons given by the president judge.

Judgment affirmed.


author: Rogers, J.

text:
    Pennsylvania Railroad v. Heister. Same v. McClure. Same v. Reiley.
    Under the act of Assembly, incorporating the Pennsylvania Railroad Co., which directs an inquest to be summoned by the sheriff for estimating the damages sustained by owners of land occupied by the railroad, who shall make a report to the court, which, when confirmed, judgment shall be entered: provided that if the report be not confirmed, and justice may seem to require it, a new inquisition may be awarded by the court; the court may set aside the proceeding for excess in the estimate of damages: and this court has the same power when the proceedings are brought up by certiorari, and in such case a procedendo will not be awarded.
    Under that act, which directs a precept to be issued to the sheriff, commanding him to summon a jury, it is irregular for the sheriff to select a jury from a list of names prepared by his deputy.
    Certiorari to the Quarter Sessions of Dauphin county.
    The questions in these cases arose on proceedings by owners of land to assess the damages incurred by the location of the Pennsylvania Railroad upon their property, under the act of Assembly incorporating the company. The act provides that when the company cannot agree with the owners upon the compensation, &c., they, or the owners, may apply to the Quarter Sessions, who shall issue a precept to the sheriff, commanding him to summon twenty disinterested freeholders, to ascertain what damages, if any, have or may be sustained by reason of the construction of the railroad, or for materials used or taken away. That twelve of the jurors shall be empannelled and sworn by the sheriff or his deputy, impartially to decide and make report, and having viewed the premises, to estimate the quantity, quality, and value of the lands occupied and the materials used, and making just allowance for the advantages which may result to the owner in consequence of the making of the road, and a comparison of the advantages and disadvantages, they shall estimate what amount of damages, if any, have been or may be sustained, and make a report to the court; and if any damages be awarded, and the report be confirmed by the court, judgment shall be entered, &c.; provided that if the report be not confirmed, and justice may seem to require it, a new inquisition may be awarded by the court.
    Under this act, Heister presented his petition, setting forth that the company were excavating, embanking, and taking about three acres of his land.
    The jury reported the quantity taken to be two acres and sixty-three perches, the quality first-rate improved arable land, and the value to be $490; and making, a comparison, &c., estimated the damages, in consequence of the making of the road, at $1,260— amounting in all to $1,750, which they assessed to the petitioner.
    On exceptions to the report, testimony was taken by the defendants. They gave evidence, that evidence of opinion as to the depreciation of lands in consequence of the railroad passing through them was received by' the jury. Also, evidence of damages likely to result from burning of fences and destruction of cattle. Also, that a claim was made for $200 damages, for trespasses committed in laying out the road, and the injury to plaintiff’s feelings. That it appeared from conversations among the jurors, that damages likely to result from fences, &c., were estimated by them, and that the cost of making and maintaining fences on both sides of the road was included in the estimate. Also, that evidence was given that a culvert for drainage, then constructing, was insufficient; and that the award was made by each juror writing the amount estimated by himself, and the total was then averaged — three of the jurors estimating it at $3,000.
    The admission of this testimony before the inquest, and that the damages were excessive, were the exceptions taken below; the overruling of which were assigned for error. Also, that there had been a separate assessment of the damages and value.
    The petition of McClure set forth that the company had occupied three acres of his land, and taken off the surface of three or four acres more; doing damage to the residue, rendering the cultivation therof dangerous and difficult of access, and requiring an alteration in the fences and much additional fencing.
    The inquest found the quantity occupied to be two acres and six perches, the quality first-rate arable land, and the value $228 per acre;' and making a comparison of the advantages, &c., they estimated his damages for materials taken and to be taken, the amount of — for land for road, $446; for embankments, $106.25; for damages, $443.75; fencing, $267; in all, $1,263.
    In this case, it was proved by depositions, that the deputy-sheriff prepared a list of persons, from which the sheriff selected the jury. The result was arrived at, in this case, in the same manner as in the previous one; the estimates of the damages varying from $100 to $600, &c.
    The same exceptions, in substance, were taken in this ease as in the former; and also, that the jury were not selected by the sheriff. But no depositions were taken in support of any one of them, but the exception to the mode of selecting the jurors.
    The petition of Reiley set forth, that the company had excavated entirely across his farm, separating the buildings from the main body of the land, destroying fruit-trees, and running so near the buildings as to render them continually liable to fire.
    The inquest found the quantity (taken to be three acres and one hundred and fifteen perches; the' quality first-rate arable land, and estimated its value to be $1,115, and the damages to be $734; which, amounting to $1,850, they awarded to the applicant.
    The jurors in this case were selected as in McClure’s case.
    The exceptions' were the same as in the last case, with some others depending on matters out of the record, with respect to which there was no proof on the paper-book.
    In Heister’s case, the court delivered .an opinion refusing to set aside the report, for the mere fact that the damages were higher than the court, from its limited means of judging, thought right.

      Kunkle and MeQormieh, for plaintiff in error.
    Alricks, Berry hill, and Bawn, contra.
    They argued that the quantum of damages was not a question for the court: 1 Penn. Rep. 462 ; 2 W. 190; 5 Whart. 460; 6 lb. 41; 7 W. & S. 236; 4 Whart. 53; 8 .W. 243; and the jury were regularly summoned: Novinger v. Ayres, ante.

      July 5.
   Rogers, J.

The 12th section of the act to incorporate the Pennsylvania Railroad Company directs that whenever the company cannot agree with the owner as to the compensation to be allowed for the injury done his land, or the price of materials taken for the use of the company, it shall be the duty of the Court of Quarter Sessions to issue a precept to the sheriff, commanding him to summon twenty discreet and disinterested freeholders of the county to act as jurors, whose duty it shall he to ascertain and report to the court whether any, and if any, what damage has been or may be sustained by the owner of the land, and by reason of the construction of the railroad. And having viewed the premises, the jury is directed to estimate and determine the quality, quantity, and value of the land taken and occupied, or to be taken and occupied, having due regard, and making a just allowance for the advantages which may have resulted, and which may seem likely to result to the owner in consequence of the opening and making the road. And after having made a fair and just comparison of the advantages, they are to estimate and determine whether any, and if any, what amount of damages have been or may be sustained, and to whom payable, and malee report thereof to the court; and if damages be awarded, and the report he confirmed hy the court, judgment shall be entered thereon: provided, if the award be not confirmed, and justice may seem to require it, a new inquisition may be ordered by the court. In' this section the intention of the legislature is plainly evinced, that the report of the jury of inquest shall be returned to the court in which the proceedings originated, that they may have a supervision and control over the award of the jury, which is only available when it meets their approbation; when, and when only a judgment shall be entered, and execution may issue. When justice demands it, the act requires the proceedings to be set aside, and a new inquisition awarded. Although this part of the section is somewhat obscure, yet we think the design of the legislature is manifest. They certainly did not intend that the return of the inquest should be a vain and idle cerepaony, but that it should be the duty of the court to inquire whether justice had been done before adding their sanction to the verdict of the jury. And if, in their opinion, injustice had been the result, proceeding from whatever cause or nature it may, whether from undue influence or mistake, it is made their duty to refer the case to a new inquisition.

When the court conscientiously believes injustice has been done, to refuse to interfere for no other reason than that the inquest have come to a different conclusion, is, in our view, a narrow construction of the act. The legislature intended the court to be a check upon the jury; and when too much or too little, in their judgment, is awarded, justice, which is the governing rule, requires it should be ordered for a new hearing. But this does not seem to have been the view taken of the act by the court. They have gone on the erroneous impression, as is manifest, that they were not hound to interpose their veto to the award, unless the damages were so excessive as to show plain and palpable mistake of duty, or an error arising from some improper cause; such as fraud or corruption, or undue influence. The court say, there is no charge against the jury. They are discreet and judicious men, so far as we are informed; and, with the opportunity they had, they are better qualified and more competent to ascertain the damages, under the law, than we are, although their estimate seems large to us, with our limited means of judging; but there is nothing in the report to satisfy us that they have assessed the damages, in this case, under a plain mistake of their duty, or from any other improper cause. We have already approved the finding of a jury, when it seemed as if they had assessed the damages very low. We can discover no legal objection to the report of the jury in this case. The mere fact that it is higher than, with our limited means of judging, we believe is right, is not a sufficient cause for us to interfere. To do so, we would assume a power never intended by the legislature. Taken in connexion with other parts of the opinion, it is difficult to mistake the views of the court. In language too plain to be misunderstood, they express their belief that the legislature have not delegated to them the power to interfere, unless in case of such excessive damages being given as leads the mind to the conviction that some improper influence has been brought to bear on the jury. They seem to think, because they have ruled on this idea a case where, in their judgment, the damages were too low, consistency requires them to do the same where the damages are too high. It is in truth a remarkable feature of this case, that the court have confirmed an award which they themselves believe to be unjust; and that, too, in a case where it is difficult for any unprejudiced mind to come to a different conclusion.

We have the glaring eases furnished to us of juries undertaking to allow to Mr. Heister, for two acres and fifty-three perches, the enormous and extravagant sum of $1,750; to Mr. McClure, for two acres and six perches, $1,263; and to Dr. Reiley $1,850 for three acres one hundred and fifteen perches and two-hundredths of a perch — that is to say, for less than eight acres of land, the damages are a little short of $5,000, the average value of which would not exceed $120 per acre. And these damages, be it observed, are assessed for land situate near the borough of Harrisburg, which cannot fail to be benefited to a great extent by the construction of the road, adding to the value of whole tracts by affording an improved market for the produce of their farms.

The jury appear to have overlooked or disregarded the true rule in estimating the damages, viz: a fair and just comparison of the value of the whole tract through which the road passes, before and after ;the improvement is made. Is the property benefited, or is it injured by the improvement, is a most material inquiry. If bene-. fited, the owner neither is, nor ought to be, entitled to recover any compensation whatever; if really injured, not a mere fanciful injury, compensation is to be given to the amount of the damages sustained by the owner. In coming to their conclusions they may properly inquire what the property would sell for before and after the improvement is made, and the road in successful operation.

In this view Of the act, the advantages are altogether on the side of the owners, who pay nothing when they, as in most cases they'do, receive a benefit, but who are remunerated invariably when injured. Indeed, we are not without instances of owners benefited to the amount "of thousands, who nevertheless had the modesty to ask and receive damages at the hands of a jury. Had there been anything peculiar In the situation of these lands, something tangible, making'them an exception to the general rule, there would be some show of reason in the estimate of damages. But I have looked in vain for something to distinguish these cases from other tracts through which the roa'd must pass.

So far from any peculiar hardship in the case of Dr. Reiley, it appears that the company had determined to locate a depot, machine-shops, and warehouses, adjoining his lands, and that they offered, in ¡mesence Of the jury, $500 an acre for ten or fifteen acres of his land, because of its vicinity to the site of the intended improvements. It cannot but be' observed that the amount awarded in these cases is nothing in comparison with its effect in other respects ; for if we sanction these verdicts, and the same rule is applied throughout the whole line, the damages will be swelled to such an amount as greatly to embarrass, if not seriously to endanger, the ultimate success of: a work destined at no distant day to increase the prosperity of the commonwealth to an extent beyond the most sanguine calculations. But although the estimate of damages passes all reasonable bounds, we are by no means astonished at' the' result, when we see the means by which it has been produced.

These cases have furnished a practical commentary, showing the wisdom of the legislature in providing an efficient check upon the jury. The modus operandi we are told in the uncontradicted testimony of Messrs. Rutherford and Walters, two of the jurors. In Heister’s case, the jury was called on to allow damages for the general depreciation of lands, in consequence of railroads passing through them. To sustain this position, he was permitted to examine persons living along the Harrisburg and Lancaster Railroad, as to its effect on the lands contiguous to the road. More unsatisfactory evidence could scarcely be imagined, as it may be on that road injuries, if any did occur, may have arisen from injudicious and improper management.

Damages were also asked (properly I admit) for consequential damages likely to occur from the use of locomotives; such as burning fences, crops, &c. Heister demanded, and possibly received (as we can account for the finding in no other way) compensation for trespass committed by the corps of engineers, in locating the road, amounting to the neat little sum of $200.

Mr. Walter says, that after the testimony and arguments were closed, a general conversation took place, as to the items that should compose the finding of the jury. It was their unanimous opinion that Mr, Heister should be allowed a certain amount per acre for his land, and the costs of making the fences on both sides of the road; and a portion of the jury were for allowing him a certain sum for keeping them in repair after they were made. After this general mode was adopted in assessing damages, each member of the jury marked on a ballot the estimate put on it, which were then thrown into a hat, and the aggregate divided by the number of jurors. The damages he says were about the sum reported. After the result of the damage was announced, there were various propositions made to reduce the amount, but a majority of the jury was opposed to it. A motion was also made to increase the amount, which was also voted down.

A proper estimate may be made as to the effects of this mode of ascertaining damages, by the uncontradicted fact, that three or more of the ballots were for giving over $3,000 for about two and a half acres of land. From this it is evident that some, if not a majority of the jurors, considered a railroad as a serious disadvantage; that it decreased the value of the land in question, in the view of some of the jurors, $2,000, in others, a little short of that sum; an opinion worthy of the dark ages, but which should receive no countenance from a court of justice in the nineteenth century.

It is, I agree, not a mere trifling excess in the finding, which will justify the court in disregarding the verdict of the jury. But I cannot subscribe to the doctrine laid down by the Court of Quarter Sessions, that they must be satisfied, from the evidence given, that the jury was led into manifest error in the assessment of damages, or from any other cause injustice was done to the parties beyond all question, so as to lead the mind of the court to the belief that some improper influence was the cause of the report. There is no such stringent rule, as the court have supposed, applicable to the case. On. the contrary, it was the design of the legislature that the court, in good faith, should superintend the finding of the jury, taking effectual care that even-handed justice' should be done to the company as well as to the owner of the land. They are bound to interfere and direct a new inquest, whenever it sufficiently appears that too much or too little damages have been awarded by the jury.

It is not administering the justice which the act requires, unless the merits of each case are steadily kept in view; much less is the court justified in refusing to order a re-investigation when they conscientiously believe more has been given than the land taken is worth, allowing for the advantages and disadvantages attending the location of the road, and the purposes for which it is to be used. The value of the land must be estimated in view of the value of the whole tract, unless something be shown to make the case an exception. Taking this as the rule, the land would be well paid for, at an estimate of from $100 to $150 per acre, supposing the advantages and disadvantages be equal. It must be recollected that it is the value of the land to the owner, and not to the company, that is the criterion of damages.

In the two cases of McClure and Nr. Reiley, exception is taken to the manner of selecting and summoning the jurors, as appears by the testimony of Jacob Schell, the deputy-sheriff. Although I am perfectly satisfied of the integrity of the transaction, yet I am convinced the sheriff has proceeded in a mistaken view of his duty. The sheriff is commanded to summon twenty discreet and disinterested freeholders, from the body of the county, and not from a list prepared for the purpose by another, although that other be the deputy-sheriff.

In Novinger v. Ayres, an opinion was intimated that perhaps the deputy-sheriff may be permitted to select jurors; but, on more mature reflection, I am satisfied that none but the sheriff himself is competent to perform that duty. It is a judicial act, requiring judgment and discretion, which cannot be deputed to another.

It will be readily seen, that with the purest intentions on the part of the sheriff, if we sanction the practice of permitting him to select the jurors from a prepared list, it will eventually lead to great injustice. It will go far to corrupt the fountain of justice, and strike at the usefulness of one of our best institutions. We must take care that jurors be not only pure but unsuspected. The practice is dangerous in its consequences; and the sooner it is nipped in the bud, the better for the pure and wholesome administration of justice.

In Mr. McClure’s case, it is further urged that the report of the jury is incorrect, uncertain, and contradictory, inasmuch as they find damages for the land twice, and estimate the same at different values. And this is true, but an attempt is made to explain the mistake by the supposition that it was the design of the jury to value the land in the first instance at the sum of $228 per acre; and this explanation would be satisfactory, were it not that it does not tally with the second valuation for setting aside the six perches. The two acres will amount at that rate to $456. This is a mistake, perhaps, against the claimant, but it seems to show want of accuracy, to say the least of it. If necessary, it might be urged with success against the confirmation of the report; but we do not put his case on that ground, but on general principles, and the improper manner in which the jurors were selected by the sheriff.

But it is said the court has no power to examine the merits of the report, and set the award aside on the mere ground of inadequacy or excess of damages. In the case of The Commonwealth v. Fisher, 1 Penn. Rep. 462, it is asserted the Supreme Court have the authority to set aside a report for excessive damages, although it must be in a strong case. But in Willing v. The Philadelphia and Baltimore Railroad Company, 5 Wh. 460, (a case of doubtful authority), the power is denied even to the Court of Common Pleas, a restriction which does not apply here. The act under which that case was ruled differs from this in its phraseology. The report was to be made and placed in the office of the prothonotary, and not, as here directed, to be made- to -the court, and confirmed by them. In Allison v. The Delaware and Schuylkill Canal Company, 5 Whart. 482, it is ruled that this court has no power to examine into the merits of the report, and set it aside on the mere ground of inadequacy or excessiveness of damages.

This is the general rule, with which we are not disposed to interfere. But when it appears from the opinion of the court, which comes up with the record, that the Court of Quarter Sessions have refused to interfere, on improper principles and mistaken views of their power, in eases, too, where it evidently appears they ought to have interfered, it becomes the duty of this court to do what they ought to have done. Unless we assume the power, there is a palpable wrong without the means of redress. So when it appears, from depositions or otherwise, that the tribunal of the first resort has been improperly organized, or when the jury has been selected by any other than the sheriff himself, it is our duty promptly to set aside the proceedings. And this is the established practice in analogous cases; as, for example, in pauper cases, in road cases, in proceedings under the landlord and tenant law, et id omne germs, of which we have had several instances during the present session of the court.

The judgment of the court in each of the cases named is reversed, and the proceedings set aside.

Abides, on the part of the defendants in error, moved that a procedendo be awarded in each case, to enable the company to proceed as they have taken the initiative.

Upon this motion the' court said: “ The court overrule the application for a procedendo. The proceedings being set aside, the claimants must commence de novo. Whether the claimants may commence proceedings under the original act, or must proceed under the supplement to the act, passed the 13th of April, 1846, the court decline to give any opinion.”


text:
    Frederick v. Gilbert.
    Under the replication da injuria to a plea of son assault demesne, the defendant cannot give evidence in mitigation of damages, nor contradict the averments of aggravated injuries laid in the narr: he is confined to proving an excuse for the battery.
    Where additional counts have been filed, the plaintiff cannot be put to his election as to which he will proceed on.
    In error from the Common Pleas of Dauphin county.
    The plaintiff declared for an assault and battery, averring that defendant had knocked out two of plaintiff’s fore-teeth; and that by reason of the injuries inflicted he was confined to his bed for thirty days, and disfigured for life.

      Subsequently, be filed two additional counts, tbe first of wbicb was tbe same in substance as tbe original narr., and tbe second was for an assault and battery generally. Tbe defendant pleaded son assault demesne, and tbe plaintiff replied de injurié.

    On tbe trial, and before tbe plaintiff bad opened bis evidence, defendant required tbe court to compel tbe plaintiff to elect on wbicb count be would proceed; wbicb tbe court refused to do. Tbe defendant then offered to prove in mitigation of damages that be bad been prosecuted, convicted, and fined for tbe assault and battery; wbicb tbe court rejected. He also offered other evidence in mitigation, and also to show that tbe injuries allegéd in tbe narr. bad not been sustained; which tbe court rejected.
    Tbe court (Hepburn, P. J.) instructed tbe jury that tbe plea admitted tbe cause of action as set out in tbe narr.; and that if tbe justification failed, they bad nothing to do but assess tbe damages.
    In answer to defendant’s points be further said, that tbe matters of aggravation and tbe consequential damages and injuries averred, were admitted by tbe pleadings.

      Fisher, 'for plaintiff in error.

      JFunkle and McAllister, contó.

      July 3.
   Burnside, J.

This action was trespass vi et armis, for assulting and beating tbe defendant in error. There were two counts in the plaintiff’s declaration: first, for an assault, beating and wounding tbe said George in a most violent manner in bis face, and on bis head and breast, striking tbe said George in tbe mouth and knocking out two of bis fore teeth; second, for seizing and laying bold of the plaintiff, and with great force and violence, pulled, shook, and dragged about tbe plaintiff, and then and there struck tbe plaintiff many violent blows, throwing tbe plaintiff with violence on tbe ground, by means of wbicb be was greatly hurt and bruised, and following it up with tbe aggravation of great suffering, confinement, &c.

To this, Frederick, tbe defendant, pleaded at length and in form son assault demesne, and tbe plaintiff replied at length in form de injurié sua propria absque tali causa; and on this issue alone tbe jury were sworn.

Tbe first error assigned is, that tbe court refused to compel tbe plaintiff to say on which count in tbe narr. be proceeded to trial, and in default of bis doing so, refusing to continue tbe cause. There is nothing in this assignment of error. The court were not hound to direct the plaintiff’s counsel as required. The counts were substantially the same ; the enormity of defendant’s conduct was declared in both, and they were not inconsistent with each other. The court refusing to continue the cause was a matter of discretion, and so purely so, that it is not the subject of error.

The plaintiff then read his declaration and rested; and the defendant proceeded to call his witnesses to prove his plea of son assault demesne, The defendant, at the conclusion of his evidence, offered the indictment at November sessions, with his conviction, fine, and costs, amounting to $146.75, in mitigation of damages. If the defendant had pleaded not guilty, I think this evidence would have been admissible for the purpose for which it was offered. But under this plea of son assault demesne in excuse, with the general replication de injurid, &c., the burden of proof is on the defendant, who will be bound to show that the plaintiff actually committed the first assault, and also that which was therefore done on his own part, was in the necessary defence of his person. 2 Grreenl. Ev. sec. 95, and cases there cited.

In regard to the replication de injurid, &c., the general rule is, that as it puts in issue only the matter alleged in the plea,, nothing can be in evidence under it, which is beyond and out of the plea: 2 Grreenl. Ev. sec. 96.

All the other grounds of complaint are to the charge of the court, in instructing the jury that, under the pleadings, the cause of action, as set out in the plaintiff’s declaration, is confessed by the defendant, and the defence taken under the plea of justification. This was certainly correct, as all the authorities show that the burden of proof, under the plea of son assault demesne, lay on the defendant; and the jury were further correctly instructed, that if the defendant failed under the evidence in the case, then nothing was left but to assess the damages, having regard to the circumstances of the case, as given in evidence. Nor is there error in affirming plaintiff’s points: 1 Selw. N. P. 35, n. A. We think the points were all correctly answered.

It is true that violence may be justified, where the safety of the person is actually endangered: 2 Salk. 642; Buller N. P. 18. If the battery was excessive, beyond what is necessary for self-defence, all the American authorities agree that this excess may be given in evidence, under the replication de injurid; and to this we subscribe. And this without either a special replication or a new assignment: 2 Greenl. Ev. sec. 95, n. 5, where the authorities are collected.

With us, the only question is as to the degree and proportion of the beating, to the assault. We think the cause was properly presented to the jury, under the issue raised by the defendant.

Judgment affirmed.


author: Bell, J.

text:
    Neisly’s Appeal.
    A decree discharging a guardian on settlement of his accounts and payment of the balance to the substituted guardian, with a release by him, is not a bar to petition of review. The payment contemplated in the act is a payment to the ward, after he has attained his majority.
    From the Orphans’ Court of Dauphin county.
    This was a petition of review, averring errors in'a settled guardianship account; for omissions in the guardians to charge themselves with interest; for excess in the compensation charged; in the charges for boarding, when the 'labour of the ward was an equivalent to that expense; and for errors in other items, the grounds of which were not mentioned.
    The petition set forth the appointment of the guardians in 1831; that in 1842 an account was settled, admitting a balance due the ward. That a petition was prepared by the guardians’ attorney, which the ward, then about fourteen years of age, signed, setting forth these facts, and that the guardians were desirous of resigning, and praying the court to appoint Snevily guardian. That the decree was made, and the balance of the account paid over, and a release executed by Snevily.
    The answer of the respondents set up, among other things, the decree in 1842, and the payment over of the balance, and the release.
    The petition was presented in 1847, less than five years after the confirmation of the account.
    The court (Eldred, P. J.) dismissed the petition, being of opinion that the review was barred by the payment of the balance to the substituted guardian.
    Fisher, for appellant.

      AlrieJcs, contrá.

      July 5.
   Bell, J.

Before the act of 13th October, 18^0, the practice of granting reviews of administration and guardianship accounts, upon the suggestion of error, was liberally exercised. That statute was not intended to restrain or abridge the practice, but rather to regulate and give it efficiency by making imperative a right, which before rested in some manner in grace, and the discretion of the judge. To advance a remedy so beneficial, the act which affords it should receive such a construction as will best give effect to its spirit, untrained by the liberal import of its terms, where these may seem to be in conflict. One of its leading objects is the protection of the interests of minor children, a class whose rights the law is always sedulous to shield and sustain. We must be careful, therefore, not so to interpret the statute as to put these in danger from the ignorance, incompetency, dishonesty, or negligence of those to whom has been confided the administration of their property.

In the present instance, the accounts of the first guardians were filed on the 23d of March, and confirmed on the 10th of May, 1842. - On the latter day, a petition was presented, it cannot be doubted, at the instance of the guardians, averring a settlement of their accounts, and expressing their desire to be discharged from the further execution of the trust. This, signed by the ward, then but little more than fourteen years of age, was on the same day presented to the Orphans’ Court. It was immediately acted on by the discharge of the guardians, and the appointment of another in their stead. Without the pause of even a day for inquiry, the new guardian received from. his predecessors the balance of the ward’s estate, as exhibited by the account settled, and executed to them a release of all claims and demands for or on account of any money or estate which came to their hands for the ward.

All this was done without, so far as appears, any such examination of the accounts as is contemplated by the 11th section of the act of 29th March, 1832. No auditors were appointed to pass on them, and if the court subjected them to its own scrutiny — which is more than doubtful — no proper person was appointed to appear and act for the ward in respect to the settlement of such accounts. These irregularities are not mentioned as affording a ground for impeaching collaterally the decree of the Orphans’ Court, but as furnishing opportunity to express our disapprobation of a looseness of practice in the exercise of an important jurisdiction, which we fear is but too prevalent. A guardian should not be discharged from his office on his own application, until his accounts have undergone the investigation of impartial and intelligent auditors appointed for the purpose, unless, indeed, where the trust has been of such short duration, and the accounts are so simple as to make it practicable and convenient for the court itself to pass upon them. Too much care cannot be exercised in the dismissal and appointment of guardians. Looking to the numerous details to which the attention of the Orphans’ Court is necessarily engaged, it may be safely asserted that a case is of very rare occurrence in which the employment of auditors for adjudicating the accounts of retiring guardians, can, without danger; be dispensed with. But in every case, without it be sent to auditors, or made the subject of the court’s immediate inquiry, some proper person should be designated to watch over the interests of the ward.

In the case in hand, the petition for a review of the accounts, was preferred within' the period prescribed by the statute. It is presented by the ward, though still a minor, and the single question made, is, whether the receipt by his new guardian of the balance shown by the accounts settled, precludes him from the remedy he seeks.

The proviso of the 1st section of the act of 1840, is, “ that the act shall not extend to any cause where the balance found due shall have been actually paid and discharged by any executor, administrator, or guardian.” It is difficult to imagine why this proviso Was introduced in the terms in which it stands. It is certainly in conflict with the time allowed by the statute for a review, and may, in many instances, materially interfere with the remedies of wards who have been induced, ignorantly, to accept payment of the “ balance found due” shortly after attaining full age. But is payment to a successor in the office of guardian such a payment as is contemplated by the proviso ? It may be said to be within the letter, but does it satisfy the spirit of the exception ? We think not. Looking to the whole enactment, it obviously regards the “person interested” in the account, as one competent by age to take care of,his own rights. In the instance of a guardianship account, it is the ward himself who occupies the thoughts of the law-makers, and it is a payment to him on which the proviso operates. The case of' a removed guardian, accounting with his successor, was not embraced within the legislative view; otherwise, surely, some further provision would have been made for the protection of the minor’s interests. The law cannot have intended to place a ward at the mercy of two faithless guardians, by making the unadvised act of one, a protection of the dishonest or careless act of the other. So to hold, would militate against the whole policy of our system governing the relation of guardian and ward, which aims to keep everything open, until, at least, the ward attains maturity. The language of the proviso, it is true, is so broad and general as to justify the interpretation, of the Orphans’ Court: but the construction to which we lean is more in consonance with the liberal spirit that seeks to extend the remedy, and better harmonizes with the tenor of other statutes in pari materia. Indeed it is the only one which will conserve the right of this ward, and others similarly situated, to have an investigation; for it is to be observed, no appeal lies to 'this court under the act of 1832, after the lapse of three years from the decree pronounced, if that be considered final; and one under tutelage cannot appeal without the agency and assent of his guardian. As there is nothing in the words used which absolutely precludes it, we feel satisfied we are but carrying out the great object of the act, by restraining the operation of the proviso to payments made to the ward himself, or upon his order,to his personal representatives after his death, more especially as it can scarcely be imagined that the case now presented suggested itself to the legislative mind.

• It is scarcely necessary to say there is nothing in the release executed by the second guardian to bar the prayer for a review. Had it been executed by the ward himself under a mistake of his rights, it would not have precluded further inquiry, as is shown by Lukens’s Appeal, 7 W. & S. 48 ; Stanley’s Appeal, decided at the present sittings, and other cases.

Decree of the Orphans’ Court reversed; and it is ordered that the record be remitted to the said court, with directions to proceed according to the prayer of the petition.

Coulter, J., dissented.


author: Coulter, J.

text:
    Reeme v. Parthemere.
    Bail in an administration-bond is a competent witness for the administrator in an action brought by him.
    Where the question is whether the transfer of property has been obtained by fraud and undue influence, the acts of defendant, and Ms dealings and representations to defendant many years before the transfer, are competent proof.

      In error from the Common Pleas of Dauphin county.
    Trover for two notes belonging to plaintiff’s intestate. The jury found that they had been obtained by plaintiff from the intestate by practising on her fears or prejudices, and by false and fraudulent representations, and without consideration.
    The first question was, whether the plaintiff’s bail, in the administration-bond, was a competent witness for him.
    The second, third, and fourth errors assigned, were to evidence given by Shoop, the drawer of the notes, which were dated in 1829 and 1837, which proved the origin of the notes, and the intimacy of defendant with the intestate; that, in 1829 and since, he managed her business, and received money paid on the notes; and also, of his representations to her, in 1839, that if she died without héirs, the state would get half the money. The notes were assigned to defendant’s testator, in 1843.

      Boas and MeOormick, for plaintiff in error.
    The bail was incompetent: 1 Har. & Johns. 135; 11 Gill & Johns. 338; 4 W. & S. 472. The receipt of the money was not evidence' of the fraud on which plaintiff relied.

      Rawn and Roberts, contó.

      July 3.
   Coulter, J.

The first bill of exceptions is to the admission of John P. Shoop as a witness on the part of the plaintiff, because he was bail in the administration-bond, and therefore liable for costs. But he was not liable for costs specifically upon failure of the plaintiff in the suit; nor was he answerable in any way for the conduct of the suit. His liability was that the administrator would administer the assets of the deceased well and truly, according to law: and so far as any devastavit was committed by the administrator, to be answerable. But any liability for costs, or any interest whatever so as to make him incompetent as a witness in a suit by the administrator to recover the assets of the estate, is not apparent to me. If the witness can be supposed to have any ■ interest, it would be the other way; for a recovery on the part of the plaintiff would increase the assets, and thus enlarge the responsibility of the witness, and defeat would diminish the assets, and thus lessen it.

The second error assigned, is that the court erred in the matters embraced in the second, third, and fourth bills of exceptions, and in their charge to the jury.

The charge is sufficiently general in its terms, and as the counsel have not taken the trouble to point out the part of it in which the court fell into error, we cannot notice it, as we do not perceive any.

The second and third bills of exception relate to the matter of part of John Shoop’s testimony. The reason for its exclusion urged here, is, that it was too remote from the principal facts in controversy to have any legitimate effect on their character and value. But it must be borne in mind, that the point to which all the evidence was to converge, was this: that Daniel Reeme had acquired such habitual influence over the mind of a frail, superannuated, ignorant, and unlettered female, as to obtain from her, by operating on her fears, prejudices, and avarice, through fictitious representations, bonds and moneys, without giving her any value, Now part of the testimony did relate to a period several years before the principal transaction; but it went to establish the influence which Daniel Reeme the elder had over the old woman, and the means by which he kept it up, which was by representing himself as the constant friend of her deceased husband, and his executor. We are all more or less the creatures and victims of habit. It is in vain to say that an influence long exercised does not acquire strength by its continuance, because the assertion would be against the experience of mankind. Great latitude in testimony is allowed where the object is to establish fraud. The reason is obvious— because it moves in darkness and shuns the light, and can be detected only by circumstances, some of which may be somewhat remote, and yet be entitled, in connexion with other facts, to great weight. The sound discretion of the jury, under the direction of the court, will generally afford a sufficient safeguard to the innocent, honest, and just individual, in whatever character he may be sued. We cannot say that the facts given in evidence for the purpose of establishing the long-continued influence of Daniel Reeme over Mrs. Parthemere, were improperly received.

The fourth bill of exceptions relates to the rejection of Thomas Reeme as a witness, who was offered by the defendant, and rejected by the court. The witness was without doubt incompetent. He had a direct interest in the result of the suit, as one of the heirs of Daniel Reeme deceased, the defendant’s testator.

Judgment affirmed.


text:
    Jobsen v. Boden.
    A journeyman is not entitled to a lien for liis -work under the acts of 1836 or 1846.
    In error from the Common Pleas of Dauphin county.

      Scire facias upon a mechanic’s claim. The facts were: J obsen was employed by McAllister to build a mill at a certain price. Jobsen hired Boden by the day, to work as a carpenter and mill-wright; for the agreed price, Boden filed the claim now in question.
    On a point reserved, the court gave judgment for plaintiff.

      McAllister, for plaintiff in error.

      Fisher, contó.

      July 1.
   Bell, J.

As early as the year 1819, it was decided by the District Court of Philadelphia, that a journeyman mechanic employed in working on a building, under the original contractor or master-mason, could not file a lien against the erection, under the act of 1806, notwithstanding the general or comprehensive words of the statute, which, taken literally, would seem to include every grade and class of workmen, from the chief builder down to the least important day-labourer: Cobb v. Traquair, 1 Frank. Jour. 97. The doctrine was repeated by Judge Randall, then of the Common Pleas of Philadelphia county, in Barnes v. Wright, 2 Wh. 196; and, indeed, it seems to have been everywhere recognised by the profession as a well established principle, firmly founded in reasons of public policy and convenience. The act of 16th June, 1836, which embodies and supplies former enactments on the subject of mechanics’ liens, is not broader in its terms descriptive of the persons entitled to create a lien, than is the act of 1806. It cannot, therefore, be pretended that the latter act enlarges the circle of those- upon whom the first statute conferred the privilege of lien, by admitting to a participation a class of workmen not before contemplated. Had such been the intention, the legislature, doubtless acquainted with the prior adjudications and the prevailing opinion on the subject, would have taken care to manifest it by unequivocal language. But, in this respect, the only difference between the two enactments is, that the older of them, after naming certain trades and occupations which should be entitled to the benefit of its provisions, extends them to “any other person or persons employed in furnishing materials for, or in erecting or constructing such house or other building;” while the younger, rejecting the special enumeration as redundant, authorizes generally a lien for the “payment of all debts contracted for work done or materials furnished for or about the erection or construction of” any building. That, in this feature of them, the statutes are equally extensive, is indeed shown by Savoy v. Salter & Jones, 2 Rawle, 343; in which it was held, that the act of 1806 is not confined to the classes of persons specially enumerated in it, but embraces all persons employed either as builders or material-men. As, then, the law stood, under these enactments, it is very certain-one merely engaged as a journeyman was not within their spirit, though perhaps comprehended by the letter. It is, however, supposed by the plaintiff below, that a change was effected by the 5th section of the act of 16th April, 1845 (Dunl. Dig. 951), which declares that the act of 1836 shall be construed to extend to and embrace claims for labour done and materials furnished and used in erecting any house or other building which may have been or shall be erected under or in pursuance of any contract or agreement for the erection of the same; and that no claim which has been or may be filed against any house or other building, or the lien thereof, shall be affected by any contract having been entered into for the erection of such building; but the same shall be held as good and valid as if the building had not been erected by contract. But it is notorious that the object of this declaratory act was not to extend the remedy of lien to the wages of subordinate workmen, but to correct a supposed error of judicial decision, committed in the cases of Hartz v. Patterson, 5 W. & S. 537; and Haley v. Prozer, 8 W. & S. 133. In these cases, it ha$ been determined, that one who undertook by special contract to erect a building, for a gross sum, was not within the purview of the mechanic lien laws; because, by his agreement, the intention of the contracting party to re]y upon the personal security of the owner, in the absence of a contrary stipulation, is manifested. It is perfectly apparent, from the tenor of the act of 1845, that notwithstanding the general words relied on by the plaintiff below, touching all claims for labour done and materials furnished, nothing further was intended than to extend the provisions of the act of 1836 to actual contractors, whom prior decisions had shut out from its benefits. Indeed, the •general clause to which I have referred is not more comprehensive, •and therefore not more efficacious to include all classes of artisans, than the language employed in the act of 1836, which, as I have said, was never thought to reach persons in the plaintiff’s position.

This restricted construction seems to be absolutely necessary to the safety of the proprietors of newly-erected buildings. Since the act of 1845, their property is exposed to a double lien for the same work done and materials furnished; one in favour of the contractor or undertaker of the erection, and another to secure the master-workmen employed by him. Were the plaintiff’s construction of the statute admitted, to these would be superadded the. lien of every individual workman engaged by the principal, even for a day, or to the extent of preparing a bed of mortar. This would soon be felt as intolerable. Before the act of 1845, it was observed in Hartz v. Patterson, 5 W. & S. 537, that owners desirous of improving their estates are exposed to great risks, which can only be avoided, if at all, by extreme care and caution. To increase these risks so materially as we are now asked to do, would be seriously to interfere with the growth and improvement of our cities and towns, by interposing obstacles to the march of meritorious enterprise, and thus eventually to injure the workman himself. For the introduction of such a rule, a distinct manifestation of legislative will is necessary. It is, in our apprehension, far better for all parties to leave the journeyman operative to the security he most commonly relies on, the personal responsibility of his employer.

Judgment reversed.


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    Greenawalt v. Shannon.
    A motion to quash, an appeal from the judgment of a justice of the peace, will not be entertained after the case has been referred to arbitrators, a trial had upon, the merits, and an award filed.
    In error from the Court of Common Pleas of Dauphin county.
    John Shannon, the defendant in error, brought trespass for killing his cow, before a justice of the peace, against William Greenawalt, the plaintiff in error. From the judgment of the justice on the report of referees, defendant appealed to the Court of Common Pleas of Dauphin county.
    The case is sufficiently stated in the opinion of this court.

      jBoas, for plaintiff in error.

      Kunkle, contó.

      July 5.
   Burnside, J.

This was an action of trespass for hilling a cow of plaintiff, who is defendant in error, before Justice Snyder. - No amount of plaintiff’s demand appears to haye been stated on the justice’s docket. The parties referred the cause to three of their neighbours, who awarded for the plaintiff $15, damages and costs. The testimony returned with the record shows that no witness valued the cow at less than $25. From the award Shannon the plaintiff appealed, and filed a declaration in the Common Fleas, laying his damages at $250. To this declaration the defendant entered a plea, and afterwards a rule of arbitration. The arbitrators awarded the plaintiff $35, damages and costs. From this award the defendant, Greenawalt, appealed. About a year afterwards, when the jury were about to be sworn, the counsel of defendant moved the court to strike off the appeal, which the court refused; and the cause was tried, and the plaintiff obtained a verdict for $85, damages and costs.

The only error assigned is, that the court refused to strike off the first appeal. The case of McClosky v. McConnell, 9 W. 17, is not unlike this case, and it was held that if a justice of the peace enter a judgment for the defendant upon an award of arbitrators, the plaintiff has a right to an appeal, if his claim exceed $20, which may be measured by his declaration, or by the amount stated on the doeket of the justice. It is the duty of the court to treat the law giving justices jurisdiction in civil cases, as well as their proceedings, with great liberality, in order to prevent injustice. The original summons in this case is not returned, but it is fair to presume it was for a “ sum not exceeding $100.” The amount of the demand was not stated on the docket. The value of the cow, and the wantonness of the trespass, ivas the subject adjudicated. The court say in 9 W. 18, that the damages laid in the declaration, where there is no other standard, will give jurisdiction, and that this rule rests on the authority of many cases, there referred to and cited. But the application to strike off the appeal was too late. In Marks v. Swearingen, 3 Barr, 454, where the appeal from the justice was on the 17th of June, 1845, and entered to October Term of the same year, and the motion to quash was not made until the 6th of December, 1845, after the case had been referred to arbitrators, a trial on the merits (as in this case), and the award filed, it was held that the motion to quash came too late; and the court say, the lateness of the application should have prevented, if there had been no other ground for quashing the appeal.

The defendant had acquiesced in this appeal until a trial was had on the merits; 3 Barr, 456.

Here the defendant makes ho objection to the appeal, tries his cause on the merits, which results in an increase of' damages, appeals to the Common Pleas, and when he finds the plaintiff ready to meet him before a jury of the country, tries to get clear of the case in a summary manner, which justice forbids.

Judgment affirmed.


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    Brobst v. Welker.
    On. the trial of an issue of non est factum, the plaintiff cannot prove that defendant had parted with his property, with the avowed purpose of defeating the plaintiff’s claim.
    In error from the Common Pleas of Dauphin county.
    The case is sufficiently stated in the opinion of this court. The evidence w.s exclusively as to the genuineness of the signature. The pleasure non est factum, and payment with leave.

      Kunlcle and McOormick, for plaintiff in error.

      Fisher, contó.

      July 8.
   Burnside, J.

The only question in this case which requires consideration, arises on the admission of the testimony in the third bill of exceptions; that is: the plaintiff proposed to prove that the defendant has parted with his property to his son-in-law for the avowed object to defeat the collection of this money, and did it since this cause has been put on the trial-list for this court.” There is nothing in either of the other errors assigned, and as we rise to day, I shall confine the opinion of the court to this bill of exceptions.

We must bear in mind that the action is debt on a single bill, and that the plea is non est factum, and this is the issue trying.' If there had been a witness to the single bill, the plaintiff would have been bound to call him to an account for his absence; as there was none, it lay on the plaintiff to prove the handwriting of the defendant : Greenl. Ev. sec. 569. This is to be done, first, by persons who had seen him write; the second mode is, by persons who have seen letters or other documents, purporting to be in the handwriting of the party, and having afterwards personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such acts founded on the implied genuineness, or by such adoption of them into the ordinary business transactions of life, as induces a reasonable presumption of their being his own writings: 1 Greenl. Ev. sec. 577, and'the cases cited.

In the case under consideration, the transaction was not an old one. The parties lived and traded up the river, not very distant from the county of Dauphin; hence it is not necessary to discuss any other mode of proof. The evidence offered was calculated to raise a false issue, and mislead the jury from the true inquiry, which was, whether he wrote his name to the single bill, and whether it was or was not the deed of the defendant.

I am sensible that it is a high qualification in an advocate, when he finds his case doubtful, to raise a false issue, which will tend to strengthen the question on the part of his client, and raise a prejudice against his opponent. Nothing could be better calculated for this purpose than the inquiry proposed. The court ought to have rejected the offer, and on the issue of non est factum, confined the parties to the question, whether the single bill in question was the deed of the defendant. To prove a person’s hSidwriting by collateral acts is an invasion of the law of evidence, which we are not prepared to sanction.

Judgment reversed, and a venire de novo awarded.


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    Epler v. Funk.
    In an action on a promissory note by an endorse^, a statement may be filed instead of a declaration.
    An endorsement of a note without recourse, passes it with all its negotiable qualities.
    In an action by an endorse^ against a drawer, the mere neglect to produce boohs under notice for the purpose of showing that the endorsement was made after-maturity is immaterial, where no notice has been given that plaintiff would be required to prove the consideration of the transfer, and where the notice to produce was not in writing.
    In error from the Common Pleas of Dauphin county.
    The facts of the case are fully stated in the opinion of this court.

      Msher, for plaintiff in error.

      McOormioh, contó.

      July 8.
   Rogers, J.

This is an action by an endorse^ against the maker to recover $100, payable to the order of Henry Hamer twelve months after date. It is endorsed to J. M. Funk, without recourse. The defence is, that the consideration of the note was for the right of vending Hoover’s patent corn-stalk cutting-machine, in Dauphin county; that the machine was entirely worthless, and that defendant was induced to enter into the contract by combination, contrivance, and fraud. The plaintiff, after proving the handwriting of the maker and endorser, offered the note in evidence, which was objected to, because, the defendant says, it is not admissible under the statement filed, and in a case like this it is necessary to file a narr., setting out specially the cause of action, the transfer of it, and all the special circumstances. But we are of opinion there is nothing in the objections. The case was clearly embraced by the statement, and the cause of action is set out with convenient certainty. There is nothing in the second bill. An endorser, it is true, is not a competent witness -for the endorsee; but where he is released by the endorsee, as here, he is competent, not to impeach, but to enforce payment of the note. This has been repeatedly ruled: Vide Barnes v. Ball et al., 1 Mass. Rep. 73; Rice v. Stearns, 3 Ib. 225.

The third bill presents more difficulty. The defendant contends that, under the circumstances exhibited on the face of the note, on the special endorsement and the facts given in evidence, he is entitled to make the same defence against the endorseij as between the original parties to the note. The note is endorsed by the payee to the order of J. M. Funk, the plaintiff, “without recourse.” This, it is said, is not ip the usual course of business; that it was sufficient to put the endorsed on his guard, and to lead him to suspect there was something wrong in the transaction, as between the maker and payee. But although most usually notes go forth endorsed in blank, yet I cannot agree that such an endorsement affects the negotiable quality of the paper. It shows only an unwillingness to be answerable for the solvency of the maker — a prudent precaution, particularly where, as here, the note has a long time to run before it matures. And this is the view taken of this fact, in Rice v. Stearns, 3 Mass. Rep. 225. In that case, a promissory note was endorsed specially thus: “ For value received, I order the contents of the note to be paid to A. B., at his own risk.” Two points were ruled: 1st. That in an action on such a note, by the endorser against tbe maker, tbe promisee is a witness to prove the execution of the note. 2d. Which I take it is the case here, such special endorsement transfers the property of the note, with its negotiable quality, to the endorse^.

There seems to be no question that there was a consideration passing between the present holder and the payee. It is in proof that it was taken in payment of a book account owing by Hoover to Funk. It is, however, alleged that the note was endorsed after it arrived at maturity, and consequently the maker is entitled to go into an examination of the consideration between the maker and payee. The defendant gave in evidence the deposition of John Stewart, proving a letter to be the handwriting of J. M. Funk, with notice to J. M. Funk to produce his books. The defendant then proposed to prove that the consideration of the note entirely failed, and that these witnesses perpetrated a fraud upon Epler, and made fraudulent representations to him, which induced him to take the territory of the county of Dauphin, and give the notes ; and that the machine turned out to be utterly valueless, and different from the representations they had made to him, and different from what they insured to him at the time he gave the notes.

Had the defendant connected Funk with the fraud, or had they shown anything from which an inference could be legitimately drawn that he knew of the imposition before he received a transfer of the note, it would have been the duty of the court to receive the evidence. Rut this the defendant has failed to do. There is nothing in the letter of Funk from which such an inference can be fairly drawn. On the contrary, the tenor of the letter goes to show that he thought all was fair. His object appears to have been to secure a debt owing to him by Isaac Rogers, and he wishes, for this purpose, to know what had become of a note arising out of the same transaction, given by Epler to Rogers. He says, “ I hope you have done well with the territory you got from Hoover and Rogers, and may turn it to a good account and to your advantage.” This is not the language of a man cognisant that the defendant had been grossly cheated in his purchase. The only suspicious part of the plaintiff’s conduct appears to me to be his omission or refusal, upon request, to produce his books, which probably would have shown the date of the transfer of the note. Rut to this it is answered, that the plaintiff had no notice he would be required to prove the consideration of the transfer, nor had he timely notice to produce his books; and that the notice, such as it was, was not in writing. On these questions the Court of Common Pleas are much more competent to judge than we are. They threw the notice to produce the books entirely out of the question, for the reasons stated. We would not, therefore, be justifiable in reversing the judgment on that ground.

Judgment affirmed.


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    Hartz v. Woods.
    'Where there is evidence that a bond was deposited with A., he must be called to prove its loss, or that he could not find it, before evidence of its contents can be given.
    The mortgagor having confessed judgment on a sci. fa., is not a competent witness for the plaintiff in a sci. fa. on the mortgage against a terre tenant.

    A sheriff’s sale under a judgment confessed for the interest accruing on a bond secured by mortgage, discharges the lien of the mortgage, although the defendant had previously to the judgment aliened the land, for it relates back to the date of the mortgage: and this, though the mortgage is conditioned for the payment of the amount mentioned in the bond, and there is no express stipulation with respect to the interest in the mortgage.
    In error from the Common Pleas of Dauphin county.
    The material facts of the case were these: A sci.-fa. issued on a mortgage by George Hassinger, reciting that he was bound to Woods in behalf of Landis and Susannah his wife, conditioned to pay 1661, as by the obligation would appear ; and the defeasance was conditioned that he should pay the said sum of 166?. on the day and time thereinbefore mentioned, according to the condition of the bond. There was nothing to show when the money was payable, nor any stipulation in the mortgage with respect to interest.
    The bond was lost, and it was proved to have been conditioned for the payment of interest during the life of Susannah Landis, and of the principal one year after her death.
    The mortgagor confessed judgment on the sci. fa., and defence was taken by the terre tenant.

    The terre tenant set up a discharge of the mortgage by a judgment confessed by the mortgagor in 1823, before a justice, and there was evidence it was confessed for the interest due on the bond secured by the above-mentioned mortgage. In 1824, a transcript was taken to the Common Pleas, and a sheriff’s sale made of the land to one from whom defendant (the terre tenant) had title.
    The plaintiff gave evidence that George Hassinger conveyed the land to Singer and Weisse, by deed recorded in 1817, and they continued in possession until the sheriff’s sale in 1824; and they offered to prove (but the court rejected the evidence) that at that sale, by a parol agreement, the land was sold, subject to the mortgage.
    Two questions were made on the admission of evidence : 1. The plaintiff called Hassinger, the mortgagor, as a witness. 2. The proof of the contents of the lost bond. It was in evidence, that the plaintiff’s papers had been left with Bowes (at one time the owner of the land), and the mortgage was there found, but a search for the bond was ineffectual. But the plaintiff did not call Bowes, and on this ground defendant objected to the secondary evidence.

      Fleming and MeOlure, for plaintiffs in error.

      Fisher, contó.

      July 8.
   Coulter, J.

George Hassinger was not a competent witness, being directly interested in the event of the suit. His admission was therefore an error. The loss of the bond was not sufficiently proved, nor was search made in all the places where it might have been found, nor all the persons brought to testify who might have had possession of it, in order to lay the ground for parol evidence of its contents. The parol evidence therefore on that subject was improperly admitted. The other bills of exception to eAÚdenee are not sustained.

The sale on the judgment extinguished all liens prior to the judgment on which it was sold, existing against the same title that was sold; of course, if the judgment on which it was sold was a lien on Hassinger’s title, it would extinguish the mortgage; and no condition or qualification made or annexed by the sheriff at the time of the sale, could alter or affect this rule, the sale being made prior to the act of Assembly of 6th April, 1830.

Whether Singer had acquired title, and was in possession before the rendition of the judgment, was a question of fact, and as such was properly enough left to the jury. But its principal effect would depend upon the fact whether the debt upon which the land was sold, was a debt secured by the mortgage or not. If the debt on which the land was sold was also a debt secured by the mortgage, then it was a matter of no consequence when Hassinger sold to Singer, because the lien of the judgment would run back to the lien of the mortgage; and of course carry the land with the sale, free from the lien of the mortgage. There was error in the charge of the court, and also in the admission of evidence.

'Judgment reversed, and a venire de novo awarded.