Duncan research files of
"Reports of cases adjudged in the Supreme court of Pennsylvania; with some select cases at nisi prius and in the circuit courts" by the Honorable Jasper Yeates, one of the judges of the Supreme Court of Pennsylvania; ("Yeates Reports") Vol.2, pgs.113 to 114 (California State Law Library, Sacramento, 1/2004)
ARCHIBALD STEEL against THOMAS DUNCAN and JAMES DUNLOP surviving administrators of DANIEL DUNCAN; Supreme Court of Pennsylvania, York; 2 Yeates 113; October, 1796, Decided.
CASE. The declaration contained two counts: 1st, Indebitatus assumpsit for 7125£. had and received to the plaintiff's use, and money laid out and expended at the request of the intestate.
It appeared ill evidence, that David Duncan of Pittsburgh, assistant quarter master in the service of the United States, during the late war, had drawn an order on the plaintiff, then also in the quarter master's department, for a large sum of money, the exact amount whereof was not shewn; and that the same was payable to the defendant's intestate.
That on the 18th December 1779, the plaintiff wrote to the defendant's intestate, informing him that he could pay no more than 19,000 dollars thereon, and that it gave him pain not to comply with the order of the said David Duncan, but he hoped he would have it in his power to serve him in a short time. This letter was subscribed by the plaintiff as "assistant quarter master," and indorsed "on public service."
On the next day, John Slaughter for Daniel Duncan passed his receipt to the plaintiff for 19,000 dollars, on account of David Duncan, which sum he promised to be accountable for.
The plaintiff then produced a settled account between himself and David Duncan, wherein the balance due from the said David to him, was struck, as 100,684£. 14s. 9d.
This account was objected to, as res inter alios acta, and overruled by the court on that ground. The court moreover declared, that the plaintiff had not entitled himself to the present action. The transaction between Daniel Duncan and him was merely confined to the order of David Duncan. It might have been given, for any thing that appears to the contrary, on a private account between Daniel and David. And the suit would have more properly lain against David Duncan by the plaintiff in his private capacity, if he had settled his accounts as assistant quarter master with the United States. But until such settlement was made by the plaintiff, the money was only suable for, in the name and for the use of the United States.
The counsel then said, they would tender a bill of exceptions, which was agreed to.
They afterwards agreed, that the suit should proceed for the benefit of the United States; but the court adhered to their former opinion. Verdict for the defendants.
"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Thomas Sergeant & Wm. Rawle, Jun.; 2nd edition, revised and corrected; ("Sergeant & Rawle") Vol.2 pgs.480 to 487 (California State Law Library, Sacramento, 1/2004)
BLASHFORD against DUNCAN; Supreme Court of Pennsylvania, Western District, Pittsburgh; 2 Serg. & Rawle 480; September, 1816, Decided.
ON the 7th June, 1815, two justices of the peace of Allegheny county, issued their precept, reciting that Margaret Duncan, of Pitt township, in said county, on the 1st April, 1807, was possessed of a messuage and tract of land, containing two acres in said township; and, on the same day, demised the premises to James Blashford, to be and remain a tenant at will, under the said Margaret, without any yearly rent or annual consideration. That the said Blashford entered and was, and still is, possessed thereof. That the said Margaret, on the 2d day of January, 1815, required the said Blashford to leave the premises, and he refused so to do. The sheriff was, therefore, commanded to summon twelve substantial freeholders to appear before the said justices, on Tuesday, the 13th June, and to summon the defendant. On the 13th June, an inquisition was taken, finding that Margaret Duncan, on the 1st April, 1807, was possessed of a messuage, &c.; and, on the same day and year, demised the premises to a certain James Blashford, to be a tenant at will, without any annual rent or yearly consideration, who entered, and was, and still is possessed thereof. That the said Margaret did, on the 2d day of January last preceding, require the said James to remove, and he refused to comply therewith. The inquisition assessed the sum of six cents for the damages of the said Margaret, occasioned by the detention of the premises. It was, therefore, considered and adjudged, by the said justices, that the said Margaret should receive, and have, of the said James, as well the said sum of six cents, for her damages aforesaid, as reasonable costs by her, in and about her suit expended. This inquisition was signed by the jury and the justices.
The record of the justices recited the complaint as in the precept, viz.: That Margaret Duncan did demise to Blashford the premises, to be and remain a tenant at will, under the said Margaret Duncan, without any yearly rent; that he had refused to leave the premises, &c. It also recited the precept to the sheriff, and his return, that he had summoned the said freeholders and the defendant; that the justices and freeholders proceeded to hear the proofs and allegations of the parties, and find that the said Margaret Duncan, on the 1st April, 1807, was possessed of the premises, and demised the same to the said James, to be and remain a tenant at will, without any yearly rent, and that three years before the said premises were last demanded by the said Margaret Duncan, the said James agreed to pay the said Margaret Duncan one dollar per year for the said premises, or corn to that amount or value; and that, above three months before the complaint, the said Margaret Duncan demanded the premises, and the defendant refused the delivering them up; that the said freeholders do, therefore, assess the sum of six cents damages, &c. Therefore it was considered and adjudged by them, the said justices, that the said Margaret Duncan should receive and have, of the said James, the said sum of six cents, for the damages aforesaid, and her reasonable costs, &c. A warrant of restitution was issued thereupon.
The proceedings were removed to the Court of Common Pleas of Allegheny county, by certiorari, where they were confirmed. They were removed to this Court by writ of error, and the following errors were assigned. (MAD: errors omitted here; counsel's arguments omitted here)
(opinion) TILGHMAN, C. J. This is a proceeding by a landlord against his tenant to obtain possession under the act of 21st March, 1772. The proceedings were removed to the Court of Common Pleas of Allegheny county by certiorari, where they were confirmed, and they are now in this Court by a writ of error. It appears by the inquisition, that Margaret Duncan demised a messuage and tract of land to James Blashford, to hold at her will without payment of any rent; and it is objected, that the case is not within the act of assembly, which is confined to cases where a certain rent is reserved. It is enacted by the 12th section of the act, that "any person having leased or demised any lands or tenements to any person or persons, for a term of one or more years, or at will, paying certain rents," may, in certain cases specified in the act, apply to any two justices, "and upon due proof before the said justices, that the lessor had been quietly and peaceably possessed of the lands or tenements so demanded to be delivered up, that he had demised the same, under certain rents, to the then tenants in possession, and that the term for which the same was demised is fully ended," the said justices may issue their warrant to the sheriff, commanding him to summon twelve substantial freeholders to appear before the said justices in four days, &c. &c. The act then goes on to provide, that the landlord may be restored to his possession, and recover such damages as shall be assessed by the said freeholders, in case it shall appear to the said justices and freeholders, "that the lessor had been possessed of the lands or tenements in question, that he had demised the same for a term of years, or at will, to the person in possession, or some other under whom he claims, or came into possession at a certain yearly or other rent; that the term is fully ended, and that demand had been made of the lessee or other person in possession as aforesaid to leave the premises three months before the application to the justices." Thus it appears, that upon every occasion where the act mentions the kind of demise upon which relief is to be given, (and it is mentioned in three instances,) it is described as a demise upon which a certain rent is reserved. If it be asked, what material difference there is between a demise on which rent is reserved, and one on which no rent is reserved; it may first be observed, that where the law has made a difference it is not for the Court to say there is none, nor is it for us to extend this summary proceeding which deprives a man of his possession in a few days to cases not clearly within the scope of the law. Then as to the difference between cases where a rent is reserved, and those where none is reserved, it may be answered, that there certainly is a difference. The very idea of a lease seems to contain some kind of render or service from the tenant, and where nothing of the kind is stipulated the connection of the parties, as landlord and tenant, does not appear to be completely recognised. But where the tenant agrees to pay rent, it is a full acknowledgment not only of his landlord's title, but of the lessee's holding under him as tenant. Whether this was the view which the legislature took of the subject, or whether they thought it not worth while to give an extraordinary remedy in cases where the landlord had not thought it worth while to reserve any rent, I will not undertake to say. But whatever might have been the motive, they have confined the remedy to cases where rent is reserved; and even if they made an involuntary omission, the Court has no right, in a case of this kind, to supply it.
But it has been contended by the counsel for the landlord, that in one part of the record it appears, that rent was reserved. Looking through the whole of this record it certainly exhibits a singular aspect. In the inquisition, under the hands and seals of the freeholders and justices which is returned as part of the record, it is expressly found, that the demise is without rent. And yet afterwards in something which seems to have been intended for a record drawn up by the justices, and certified by them alone, it is averred, that it was found by the justices and freeholders that for the last three years a rent of one dollar a year was reserved. Certain it is, that the inquisition and the record, certified by the justices, are at variance. What is to be done then? Supposing that the justices might, as has been contended, have made a record of the proceedings without annexing the inquisition to it, yet they have not done so. They have sent the inquisition, and having placed it on the record they cannot contradict it. But even supposing, that no regard was to be paid to the inquisition, we must then take the proceedings as they are certified by the justices in the record which they have drawn up, and in that record there is an essential defect; for it does not appear, that the term was ended. So that in no point of view can the proceedings be supported.
I am, therefore, of opinion, that the judgment of the Court of Common Pleas confirming the proceedings before the justices and freeholders, should be reversed, and that these proceedings should be quashed.
(opinion) GIBSON, J. The whole scope of the landlord and tenant act seems to evince, that the legislature contemplated a re-possession of the demised premises immediately at the end of the term. The inconvenience to the tenant from being dispossessed in the middle of a succeeding year, when the assent of the landlord to a continuance of the lease may have been presumed from his silence, would be oppressive, especially as by the custom of the country lands are let only at a particular season. The reasons of Judge WILSON in Brown v. Vanhorne, appear to my mind satisfactory. In giving a construction to a statute general convenience ought never to be lost sight of. But as the inquest, who were the legal judges of the facts, have expressly found, that the plaintiff was a tenant at will, and not from year to year, notice might be well given to him at any time. I lay out of view all the facts introduced into the record by the justices which are not warranted by the inquisition of the freeholders. These, if taken as a part of the case, would constitute a tenancy from year to year, but without being expressly found by the freeholders they can have no legal effect.
The next exception, that it is expressly found no rent was reserved, is better founded. In giving this summary proceeding the object of the legislature was to relieve the landlord from the vexation and delay of an ejectment, to which, only, he could, before the act was passed, have had recourse, even in the plainest case, and where the tenant could not hope to make a successful defence. The intention, however, was to confine the application of the remedy to plain cases only, and accordingly we find the legislature have described, with precision, the few and simple ingredients that compose the case they have committed to the jurisdiction of the justices and freeholders. The reservation of rent being the most satisfactory evidence of tenure, of which any case is susceptible where the agreement is by parol, was, no doubt introduced to prevent the remedy from being extended to cases where the existence of a lease may be barely pretended, for the purpose of giving colour of jurisdiction. The frequency of attempts to abuse the provisions of this act, by perverting it to purposes of oppression, and to bring it to bear on cases never intended to fall within its operation, shews the propriety of leaving nothing to construction, as to what is necessary to constitute a case falling within it. I am, therefore, disposed, in every instance, to hold this tribunal strictly to the letter of its authority. Then, whatever may have been the motive, it is certain the legislature have made the reservation of rent a fact necessary to authorise the justices to take cognisance of the complaint, and they being a court of special jurisdiction, in derogation of the common law, must be restrained in the exercise of their authority to cases that clearly and explicitly come under it, without the aid of any construction or intendment whatever. But it is contended that, as the justices have set forth in their record that a certain rent was reserved, the fact sufficiently appears; and that, as it was not necessary to send up the inquisition, the case stands exclusively on the record. I admit, if the justices had sent up only the record, which they are, by the act, directed to make, it would have been good in the first instance, at least, to enable the Court to proceed on the return, and, if diminution were not suggested, the Court would not travel out of it, to discover whether it were falsely made up. But, where there is a suggestion of diminution, the Court, for the purpose of looking at the whole proceedings, will award a certiorari to bring them up. Here, having been sent up, in the first instance, they are judicially before us; and we can, therefore, inquire whether the justices have introduced into their record facts for which they had no warrant. It being the province of the freeholders to ascertain all necessary facts, and, it being "lawful, in every such case, for the said two justices to make a record of such finding," it is error if the facts are recorded untruly; at least no defect can be supplied by the introduction of any thing not found in the inquisition. The judgment would be then rendered on facts different from those found by the persons who are the legal judges in that particular. Here the defect is in the inquisition, and it is clear it cannot be cured by any act of the justices, who, without the concurrence of the freeholders have no right to assume any fact necessary to sustain the landlord's case. The judgment must be reversed.
Judgment of the Common Pleas reversed and proceedings quashed.
"Pennsylvania state reports, containing reports of cases adjudged by the Supreme Court of Pennsylvania" by George W. Harris, Vol.VII ("Pennsylvania Reports"); Vol.19, pg.318 to 320 (California State Law Library, Sacramento, 1/2004)
OLIPHANT v. CHURCH & CAROTHERS; Supreme Court of Pennsylvania; 19 Pa. 318; September 27, 1852, Decided.
Error to the District Court of Allegheny county.
This was an action on the case, by Church & Carothers, against F. H. Oliphant as endorser of a bill of exchange, as follows:-- Springfield Furnace, June 15, 1848. Four months after date pay to the order of J. H. Duncan, two thousand dollars, at the Western Bank of Baltimore, without defalcation, for value received, and charge to account of J. K. Duncan. To Messrs. Calhoun & Harrison, Cumberland, Md.
The bill was endorsed by J. H. Duncan, and successively by F. H. Oliphant, the defendant in the suit, by Church & Carothers, and others. The pleas were non assumpsit, and payment with leave, &c.
The bill fell due on the 18th October, and, being protested for non-payment, was taken up by Church & Carothers, notice being given to Oliphant, the endorser.
In order to replace themselves in the funds required to meet the bill, Church & Carothers procured an accommodation note, at four months, for $2000, from Carothers, Miller & Co., which, being endorsed by J. K. Duncan and by Oliphant, was discounted by the Bank of Brownsville, and the proceeds remitted to Church & Carothers. This note, when it fell due, was also taken up by Church & Carothers.
In regard to the acceptance and note it was testified, that when the bill became due, Duncan, the drawer, said the bill would not be paid, and he proposed getting a note of Church, Miller & Co. discounted. The note above referred to was obtained, and was discounted, and the proceeds, $1960, were, as stated before, sent to Church & Carothers, who had lifted the bill. The books of the plaintiff were produced, and they showed a charge, on the 25th October, 1848, to the account of J. K. Duncan, the drawer, of the amount of the draft, and also a credit for the proceeds of the note which had been discounted at the Bank of Brownsville. It was testified, that as soon as Carothers saw the entry of the note in the books of the plaintiffs, which entry had been made by the clerk of Church & Carothers, he said it should not have been charged to Duncan, as it was for his (Carothers') own use.
On the trial, various points were submitted on the part of the defendant, the third of which was, that if the note of Carothers, Miller & Co., discounted at the Bank of Brownsville, was given as a loan of the credit of the makers, to raise money for the purpose of enabling the plaintiffs to take up the bill of exchange on which this suit is founded, or of reimbursing them upon their having so done, and the money was so raised upon the endorsement of the defendant, and paid over to the plaintiffs, it amounted to a satisfaction pro tanto of the bill.
Lowrie, J., refused to instruct the jury in accordance with this proposition, and to this error was assigned.
Verdict was rendered for the plaintiff. (MAD: syllabus omitted here)
(opinion) September 27 -- This was an action by Church & Carothers, endorsees, against J. H. Oliphant, endorser of a bill of exchange, drawn by J. K. Duncan, on Calhoun & Harrison, of Cumberland, Md., in favor of J. H. Duncan, for $2000, at four months.
The defendant set up that a note of $2000, made by Carothers, Miller & Co., to the order of J. K. Duncan, and endorsed by him and Oliphant, had been discounted at the Brownsville Bank, and the proceeds remitted to Church & Carothers, whose clerk credited the amount to the account of J. K. Duncan, and charged to the same account the draft, which, having been dishonored, was taken up by Ohurch & Carothers. It was claimed on the part of the defendant, that the note was given as a loan of the credit of the makers, to raise money for the purpose of enabling the plaintiffs to take up the bill of exchange, or of reimbursing them upon their having done so, and thus that it amounted to satisfaction pro tanto of the bill. The Court refused, on request, to affirm this proposition, and this is the error now assigned.
We must assume the purpose for which the note of Carothers, Miller & Co. was made, to have been as stated in the proposition of the defendant; but in judging of the effect of that transaction, three other facts must be kept in view, which appear to have been undisputed on this record:--
1st. That due notice of the dishonor of the bill of exchange had been given to Oliphant.
2d. That Church & Carothers disaffirmed the act of their clerk, as soon as they discovered the entries he had made in their books.
3d. That when the note of Carothers, Miller & Co. fell due in the Brownsville Bank, the plaintiffs paid it and took it up.
In view of these facts, how could a loan of the credit of the parties to the note extinguish Oliphant's liability on the draft, without an express agreement to that effect? His liability to the plaintiffs, as subsequent endorsers, was fixed by the protest of the bill, and notice to him. They held the bill and the note as securities for the same debt, but, until actual payment of the one or the other, neither was extinguished. All the authorities go to show that, at law, accepting of a security of equal degree, either from the debtor himself, or from a stranger, at the instance of the debtor, is no extinguishment of the first debt. See Weakly v. Bell, 9 Watts 273, where Judge Kennedy discusses the authorities on this point very much at large. Even a higher security between different parties, or for a different sum, will be presumed, in the absence of proof, to have been accepted as a collateral security; and it depends on the intention and agreement of the parties, whether it shall be extinguishment and satisfaction of the antecedent indebtedness.
Nor did the discount of the note at bank alter the presumption of law; for in Kean v. Dufresne, 3 Serg. & Rawle 233, it was decided that, if a creditor take a note from his debtor, and get it discounted at bank, and apply the proceeds to the credit of the drawer, and afterwards the note is protested and paid by the creditor, this is not such a parting with the note as makes it an extinguishment of the precedent debt. If the doctrine of the defendant's point were sustained upon such facts as we have here, then any creditor would discharge his debtor by borrowing money to meet engagements which the debtor should have met; and in the same manner, a surety might release the liability of his principal. But the law is not so. There was no evidence of the intention or agreement of Church & Carothers to receive the note in lieu or satisfaction of Oliphant's liability on the bill, and as there was no payment of the note by any of the parties to it, the law will not treat it as satisfaction.
There was no error in the Court's refusal to affirm the defendant's proposition, and the judgment is accordingly affirmed.
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