Duncans in Franklin Co. PA Court Records Part 1

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Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised April 3, 2004

FRANKLIN CO. PA
COURT RECORDS Part 1
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Thomas Sergeant & William Rawle, Jun.; 2nd edition, revised and corrected; ("Sergeant & Rawle") Vol.4 pgs.449 to 452 (California State Law Library, Sacramento, 1/2004)
      DUNCAN against THE COMMONWEALTH; Supreme Court of Pennsylvania, Southern District, Chambersburg; 4 Serg. & Rawle 449; October, 1818, Decided.
      In Error. Writ of error to Franklin county.
      Matthew Duncan, the defendant below, was convicted of adultery and bastardy, but before judgment, received a pardon from the governor for the adultery. Having pleaded his pardon, the court allowed it, so far as regarded the punishment of adultery, but gave judgment against him for the costs. The court likewise made an order, that the defendant should pay to the mother of the two male bastard children, twelve dollars for her lying-in expenses, and one hundred and eighty dollars for the expenses of maintaining the said children, from their birth, to the day of making said order, and from that day, at the rate of forty-two cents a week for each of the children, until they should severally attain the age of seven years; and further, that the defendant should enter into a recognizance himself in four hundred dollars, and one good surety in two hundred dollars, conditioned for the performance of the said order and judgment of the court.
      On the removal of the cause to this court, three errors were assigned, which are stated in the opinion of the court.
      The opinion of the court was delivered by TILGHMAN, C.J. -- It is assigned for error, 1st "That the indictment is defective in not mentioning the township in which the defendant resided, when the offence was committed." This is said to be necessary, because the fine for adultery is to be divided between the Commonwealth, and the supervisors of roads of the township. By the act of 31st March 1772, the fine was to be divided between the governor, and the overseers of the poor of the township, where the offender resided at the time of committing the offence. But in the place of the overseers of the poor, the supervisors of roads were substituted by the act for erecting a poor-house in Franklin county, passed the 11th March 1807. It is not necessary, however, that the township should be laid in the indictment, because the court may ascertain the place of the defendant's residence, otherwise than by the verdict of the jury. There is no error, therefore in omitting it.
      2. The second error assigned, is in the judgment for costs. It is contended on behalf of the commonwealth, that the right to the costs was vested in the officers to whom they were due, and therefore, the governor neither intended, nor had the power to remit them. If the right was vested in the officers, I agree that the governor had no power to affect their right. But whether the right was vested, is the question. And I take it, that it was not vested before judgment and when the defendant pleaded his pardon, judgment ought not to have been given. This is the law laid down in Cro. Car. 9, and 199, "Costs for which judgment has been given, are not remitted by a pardon of the offence, subsequent to the judgment, because there was an interest vested in private persons."
      3. The third error assigned, is in the order respecting the support of the bastard children. This order is in the usual form, and the only question is, whether after pardon, the court had a right to make it. Where there are several offences, the governor may pardon one, and not the other, and where the punishment is divided into distinct parts, he may remit a part. Bastardy cannot properly be called a different offence from adultery. The bastard is begotten in the act of adultery, and his birth is the consequence of it. But the punishment of adultery, and the order to maintain the child, are quite different things. A fine and imprisonment are inflicted as the punishment of the crime, the order for maintenance is intended for the enforcement of a moral duty, and the protection of the public from expense. There may be propriety therefore in remitting the punishment, when it would be improper to dispense with the maintenance. The pardon in question is of the adultery, but no mention is made of the expense of maintenance; and they are things of so different a nature, that one cannot be said to be included in the other. The order for maintenance, is collateral to the judgment for adultery. The court, therefore, might proceed to make the order, although they could not lawfully give the judgment. If the order were part of the judgment, the pardon would have stopped all further proceedings, nor perhaps, would it be in the power of this court to reverse the judgment for costs, without reversing the order for maintenance, because it was decided in the case of Jackson v. The Commonwealth, 2 Binn. 79, (where the defendant was sentenced on a conviction of adultery, to pay a fine of one hundred and fifty dollars, and to be imprisoned three months at hard labor), that the judgment could not be reversed in part, and affirmed in part. I give no opinion, however, on this point, for it may deserve further consideration, whether even in a criminal case, the judgment may not be reversed as to costs, and affirmed as to the rest, or vice versa. In the present case, I consider the order for maintenance, as altogether distinct from the judgment for costs, and am therefore of opinion that the judgment for costs should be reversed, and the order for expenses and maintenance affirmed.
      Judgment for costs reversed, and order of maintenance affirmed.
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Thomas Sergeant & Wm. Rawle, Jun.; 2nd edition, revised and corrected; ("Sergeant & Rawle") Vol.17 pgs.31 to 40 (California State Law Library, Sacramento, 1/2004)
      PURVIANCE and others against The COMMONWEALTH, for JOHN ALEXANDER'S Administrator; Supreme Court of Pennsylvania, Southern District, Chambersburg; 17 Serg. & Rawle 31; October 31, 1827, Decided.
      In Error. Error to the Court of Common Pleas of Franklin county, where a verdict and judgment were rendered in favour of the plaintiff below, and the defendant in error, the commonwealth, for John R. Latimer, administrator of John Alexander, against Purviance, Crawford and others, defendants below and plaintiffs in error. The case was tried before the associate judges of the court below.
      Scire facias to recover a share of the estate of John Alexander, who died in 1798. Plea nil debent. The share of the plaintiff was stated to be one-tenth.
      On the 15th of September, 1800, the first administration account of John Calhoun and Samuel Purviance, administrators of John Alexander, was settled, stating a balance of two thousand seven hundred and forty-four dollars and fifteen cents, in their hands. The second administration account was filed on the 9th of March, 1813, and confirmed on the 8th of June, 1813, by the Orphans' Court, finding a balance in the hands of accountants, for distribution according to the decree of the court thereto annexed, thirteen thousand, two hundred and seventeen dollars and eighty-five cents.
      A feigned issue was tried in the Circuit Court of that county, entered in 1805, in which William Alexander, Andrew Galbraith, and Jane, his wife, Oliver Alexander, and Elizabeth, his wife, Richard Duffy, and Martha, his wife, were plaintiffs; and William Jamieson, and L. his wife, John Stewart and, Margaret, his wife, Robert Gilleland, and Esther, his wife, Thomas Auld, and Elizabeth his wife, --- Tate, and Agnes, his wife, John Alexander, --- Huston, John ---, and Jane, his wife, Agnes Milligan, and Quentin Anderson, and Nancy Ann his wife, were defendants: and on the 9th of April, 1811, there was a verdict for the defendants. This appeared by the docket entries; but it was admitted that the declaration and other papers in the cause, could not be found; and that Mr. Duncan was the counsel of the defendants in that action. It was also admitted, that Mr. M'Cullough was the counsel of the administrators of John Alexander, in stating and presenting and settling the second administration account.
      The plaintiff next offered in evidence, a paper dated the 17th of April, 1813, in the handwriting of and subscribed with the initials of J. Hamilton, deceased, late president of the court, and the endorsement of sums on the same in the handwriting of Mr. M'Cullough, and also two papers attached thereto, in the handwriting of Thomas Duncan Esq., marked, "filed October, 1812, and November, 1812." It was admitted that the said papers came from the office of the clerk of the Orphans' Court. This evidence was objected to by the defendants, but the court received the evidence, and the defendants excepted.
      The following was the decree above-mentioned:
      No. 458, administration of John Alexander. On the administration account, the court made a decree as follows:
      It appears to the Orphans' Court, that although the legislature, evidently, under our intestate acts, have preferred representation in every case where there is a survivor of brother or sister, or survivor of any class of the next of kin, it seems to be otherwise when there are no survivors. Here all the uncles having died, and the issue being all cousins, all equally next of kin to the intestate, at the time of his death, the court is of opinion that this is a case not contemplated by the act, so as to divide the intestate's estate per stirpes. The decision in England, on a statute nearly in the same words, has been according to this construction.
      Where there is a survivor, it is reasonable to prefer him: and that principle adopted as to him, carries the distribution throughout. Here all are equal -- all are next of kin, and there seems to be no reason for inequality of division. If the contrary was intended by the legislature, it is a casus omissus. The court, therefore decree, that distribution of the intestate's estate be made among all the persons named; they being cousins, and being in equal degree to the intestate. J. H.
      (Endorsed,) This decree to be open to an application for consideration at next term if required. J. H.
      The following was the paper in the handwriting of Mr. M'Cullough, found endorsed on the back of the foregoing decree, and it was conceded to have been made as a memorandum some time after the papers had been filed.
      The distribution according to the within decree is as follows; to wit:--
            (2nd column heading) Dols. cts.
            John Alexander, one share, 1320,78 1/2
            William Jamieson and wife, one share, 1320,78 1/2
            John Stewart, and Margaret, his wife, 1320,78 1/2
            Robert Gilleland, and Esther, his wife, 1320,78 1/2
            Thomas Auld, and Eliza, his wife, 1320,78 1/2
            Agnes Tate, 1320,78 1/2
            Mary Huston, 1320,78 1/2
            Jane Milligan, 1320,78 1/2
            Agnes Lauson, 1320,78 1/2
            Quentin Anderson, 1320,78 1/2
      On a separate piece of paper, in Mr. Duncan's handwriting, was the following:--
      Distribution to be made, subject to a supplemental account, to be rendered by administrators and to a further allowance to be made to them.
      The defendants in the feigned issue who represent the intestate, submit to the court to decree in what manner distribution is to be made. John Alexander died intestate since the act of 1794, leaving at his death his next of kin of equal degree, and his sole representatives,
      1. John Alexander, William Jamieson and Livy, his wife, late Livy Alexander, John Stewart and Margaret, his wife, late Margaret Alexander, Robert Gilleland and Esther, his wife, late Esther Alexander, children of Hugh Alexander, who was the brother of William Alexander, the father of the intestate.(4)
      2. Thomas Auld and Eliza, his wife, late Eliza Alexander, Agnes Tate, late Agnes Alexander, children of John Alexander, a brother of William Alexander, who was the father of the intestate.(2)
      3. Mary Huston the daughter and only child of James Alexander, the brother of William Alexander, who was the father of the intestate.(1)
      4. Jane Milligan and Agnes Lauson, children of Jane Lauson, sister of Isabella Lauson, who was the mother of the intestate.(2)
      5. Quentin Anderson and Nancy Ann, his wife, the daughter and only child of Robert Lauson, the brother of Isabella Lauson the mother of the intestate.(1)
      The court direct distribution to be made amongst the parties above stated, under advisement, and will decree the several distributive parts under the intestate act on the Monday of November term.
      In the handwriting of Mr. Duncan.
      Distribution decreed, subject to a supplementary account, to be rendered by the administrators, and subject to any further allowance the court may make to the administrators, to wit: -- One fifth part to John Alexander, William Jamieson and Livy, his wife, late Livy Alexander, John Stewart and Margaret, his wife, late Margaret Alexander, Robert Gilleland and Esther, his wife, late Esther Alexander, the children of Hugh Alexander, who was the brother of William Alexander, the father of John Alexander, the intestate.(4)
      One fifth part, to Thomas Auld and Eliza, his wife, late Eliza Alexander, Agnes Tate, late Agnes Alexander, and John Alexander, children of John Alexander, a brother of William Alexander, who was the father of John Alexander, the intestate.(3)
      One fifth part to Mary Huston, the daughter and only child of James Alexander, the brother of William Alexander, who was the father of John Alexander, the intestate.(1)
      One fifth part to Jane Milligan and Agnes Lauson, children of Jane Lauson, the sister of Isabella Lauson, the mother of the intestate, to hold as tenants in common. And one fifth part to Quentin Anderson and Mary Ann, his wife, the daughter and only child of Robert Lauson, brother of Isabella Lauson, the mother of the intestate.
      The defendants gave in evidence the receipt of John Alexander, dated the 2d of March, 1819, for two hundred dollars, and then proposed to add the plea, that the plaintiffs ought not to have or maintain their action aforesaid, against them: because they say, that the said John Alexander, deceased, of whose estate, the said John R. Latimer is administrator, was not the said John Alexander mentioned in the decree of the Orphans' Court, recited in the plaintiffs' writ of scire facias, and was not one of the heirs of John Alexander, who died in Chambersburg: and this they are ready to verify.
      The defendants also proposed to give in evidence, that John Alexander, for whose representative this suit is prosecuted, is the same John Alexander, to whom the said payment was made on the 2d of March, 1819, and that he is the same Alexander for whose administration this suit is brought, and that the said John Alexander, to whom said payment was made, and whose representative the said John R. Latimer is, was the son of John Alexander, and not the son of Hugh Alexander. That there was a Hugh Alexander and a John Alexander, (uncles of the said John Alexander, who died in Chambersburg: and that the said uncles Hugh and John, left two sons of the name of John Alexander, who are cousins in the same degree, to the decedent John Alexander, who died in Chambersburg; and also offered to prove by the declarations of the said John Alexander, for whose representative this action was prosecuted, and by other evidence, that there are several other cousins in the same degree, not named in the issue in the Circuit Court, or in the Orphans' Court; who are entitled in equal shares with the parties named, to a distributive share of the estate of the said decedent, John Alexander, who died in Chambersburg, as aforesaid. And the said John Alexander, for whose representative this suit is prosecuted, is not the John Alexander named in the decree of J. H., president of the court, given in evidence, or in the endorsement. And that the persons entitled as heirs in the same degree above-mentioned, and not named in the decree, as well as the said John Alexander, by whose representatives this suit is prosecuted, at the time of the said decree, and ever since resided out of the United States, and that John Alexander, the son of Hugh, also resided out of the United States. To the admission of which plea and evidence, the plaintiffs objected, and the court refused to permit the pleadings to be amended or to receive the evidence. To which opinion of the court, the defendants excepted.
      The defendants requested the court to instruct the jury,
      1. That the distribution made, as is alleged by the plaintiff, in the Orphans' Court of Franklin county, and as given in evidence, is not conclusive as to the said parties, being the only representatives of the intestate.
      2. That other persons who stand in the same relation, though then unknown, are not barred of their claims by the omission to name them in such proceedings in the said Orphans' Court.
      3. That it is incumbent on the plaintiff to make out with reasonable certainty all the heirs and representatives of the said testator, to enable him to recover what is the distributive part of his intestate, if entitled to any.
      4. That it is uncertain what is the distributive share of the plaintiff's intestate.
      5. That the plaintiff's intestate having in the receipt of 1819, given in evidence, described himself as John Alexander, son of John, is not entitled to recover a tenth part of the balance on the administration account, under the decree of the Orphans' Court of the said county, and under the evidence given in this cause.
      6. That the plaintiff cannot recover in this action without showing by other proof than the decree of the Orphans' Court, that his intestate was one of the heirs of the intestate, and was entitled to a share of his estate, and was the person to whom the share was decreed: and as no such evidence has been given, the plaintiff cannot, therefore, recover.
      7. That the plaintiff, if entitled to recover as an heir a distributive part, is not entitled to receive interest on such distributive share until after demand made.
      The court directed the jury as follows:
      1. That the proceedings and decree of distribution, made in the Orphans' Court, is, from the lapse of time and acquiescence, conclusive.
      2. That the proceedings had, and decree of distribution made in the Orphans' Court excludes unknown relations, if any such there be.
      3. That the record of the Orphans' Court is a sufficient designation of the representatives of the intestate; and from it, under the pleading, the jury may find for the plaintiff.
      4. That there is some uncertainty as to the sum now due, arising from the payment made, and interest that may be chargeable; of all which the jury is to judge, but the plaintiff is entitled to a tenth part according to the decree.
      5. That the receipt of 1819, signed by John Alexander, as son of John, is no bar to the plaintiff's recovery.
      6. That the evidence exhibited on the trial of this cause, may by the jury be considered, under the pleading, sufficient to warrant the plaintiff's recovery.
      7. That if from the evidence the jury are of opinion, that the administrators used the money of the intestate as active private funds employed by them in business, they may and ought to be charged with interest thereon after a reasonable time from their final settlement at the Orphans' Court: but the jury is to judge from the evidence as to whether the administrators ought not to have, say, from one to five or six months after the said settlement, to vest the money before they be charged interest. (MAD: arguments of counsel omitted here)
      The opinion of the court, Duncan, J., being absent, was delivered by GIBSON, C. J. -- As the Orphans' Court has jurisdiction of the subject matter of distribution, it may designate the parties entitled, and its decree will be conclusive. But so unusual is it to do so at the settlement, that I have never known an instance. The usual way is to confirm the account, stating the balance, where there is any, to be in the hands of the accountants, subject to distribution according to law. And this is the safest course where there is a doubt as to the persons entitled, because it leaves the matter open to deliberate inquiry in an action at law, instead of suddenly concluding by a decree the rights of parties who are not before the court and who seldom have actual notice. The Orphans' Court, however, would be bound to act on the petition of any one interested; but, in such case, it ought to exact all that the nature of the case admits of to give notice; and, even then, I would not hold myself concluded, unless it should appear to have acted on the whole subject. What is there here in the shape of a decree? We have a paper in the handwriting of the president, in which it is decided that distribution be made per capita; the conclusion of which is in these words: "The court, therefore, decree that distribution be made among all the persons named, they being cousins, and in equal degree to the intestate." Now, no persons were named except in two other papers in the handwriting of counsel, found tacked to the opinion of the president, each of which appears to have been presented separately as the basis of a decree: in one of which are found names of ten persons who were defendants in a feigned issue between them and an entirely different set of claimants; by which, if it were assumed as the basis, the present plaintiff would be excluded; and in the other eleven are named, among whom the plaintiff is included. Endorsed on what is called the decree, are the names and supposed shares of the ten persons who constituted the successful party in the feigned issue; but so far is this from having been the act of the court, that it is conceded on all hands to have been a memorandum of counsel, and made several months after the paper was filed. The reference, therefore, if it be to these papers, is altogether uncertain; and if it be not, it is a reference to nothing. The paper was no doubt intended as a memorandum of the opinion of the court as to the principle of the decree, leaving its details to the counsel and the clerk when it should come to be made up in form and entered on the record. The late President HAMILTON, who, was one of the ablest and most careful judges of the Orphans' Court of whom I have any knowledge, would never have considered his decree perfected by filing a paper such as this; from which it is evident that he viewed the matter before him as a preliminary question; and that he did not consider himself as deciding between individuals, but classes. But, were this otherwise, the decree would indisputably be void for uncertainty.
      But, were it even conclusive, the defendants ought to have been permitted to show that the plaintiff was not entitled under it; and this either on the plea of nil debet, which was already on the record, or the special plea which they tendered at the trial, and which by force of the act of assembly was clearly admissible. It did not propose to give the plaintiff a better writ, but to bar him of his demand. The defendants pleaded that the plaintiff's intestate was not the John Alexander mentioned in the decree; and if this be in abatement, it would be equally so in an action on a bond to plead that the plaintiff and the obligee are different persons. The error in this respect is palpable; but on both grounds the judgment is to be reversed.
      HUSTON, J. -- There are some things unusual in this case. The case was before the Orphans' Court of this county. That court alone can decide who are the persons entitled to distribution of the estate of an intestate, and the amount due to each; this, by the express words of the bond in the first section of the act of 1794, and the concluding clause of the said section, and by every clause and section in the act which have any bearing on the subject: this is subject to appeal, and no other court has jurisdiction of this matter. The Orphans' Court of this county had two sets of claimants before them; one set who alleged the intestate to have been their kinsman: another, of a different family, from another part of Ireland, claiming him to have been of their family. An issue was found and tried, taken to the Supreme Court, and affirmed. It is singular that the order for this issue and the whole record are not now to be found. Who directed the trial, and what was to be tried by that direction, we must collect from parol proof, or from inference from some things which do appear.
      After this trial one set of claimants disappears; the other comes into the Orphans' Court and claims the estate. At first a scheme of division into five parts, dividing it per stirpes, was submitted to the Orphans' Court: in this the defendants in the feigned issue are all named, and one other is named, or the name of John Alexander is twice introduced.
      This mode of division was not adopted by the court; but the paper on which it is drawn up is found in the office of the Orphans' Court, and is annexed to the following paper; commencing, "The defendants in the feigned issue, who represent the intestate, submit to the court to decree in what manner distribution shall be made. John Alexander, the intestate, died since 1794." And then proceeds to name all the defendants in the feigned issue, and states their pedigree, showing them to be the children of the uncles of the intestate, and that the uncles are all dead. The Orphans' Court made a decree, in which, after premising the facts, they say, "The court, therefore, decree distribution of the intestate's estate to be made among all the persons named, they being cousins and being in equal degree with the intestate."
      The administrators had settled their accounts, and the amount was known. On the back of the paper on which the decree is written, was endorsed-- "Distribution according to the within decree as follows:--
      "John Alexander, one share, one thousand three hundred and twenty dollars and seventy-eight cents," and the same as to nine other names, being the names of the defendants in the feigned issue, and in the paper submitted to the court. This endorsement was in the handwriting of a gentleman of the bar who was counsel for the administrators. I consider this an absolute, and being unappealed from, final decree of the Orphan's Court, deciding the persons entitled, and the sums to which each was entitled.
      1. The objections to it are, that we have not the records of the feigned issue. I think we have enough to show that it was directed by the court; and what it was to decide, and did decide, and that it was adopted by the court. If we have not, we have a decree, independent of the feigned issue before us.
      2. It is objected, that as two schemes of division were before the court, and in one of them eleven persons were named, and in the other ten, and as both have been put in the bundle of papers, it is uncertain which number the court had in view in the decree. I have no difficulty on this subject. The court adopted one of them; that which referred to the feigned issue, and it would be strange to suppose the phrase, the persons named, referred to a rejected paper.
      3. The distribution endorsed, and the names of the ten, and sum to each is not in the handwriting of the judge who wrote the decree, but of a gentleman of the bar. I, however, consider it as the act of the judge, done as it were by his clerk, a reader accountant and scribe, as read to him when completed and adopted by the Orphans' Court and from that moment their own act. The general practice is, that when the account is passed the court order "distribution to those entitled according to law." This is the minute on the account. The clerk of the Orphans' Court, however, in all cases so far as I have known, writes on the record of the Orphans' Court at length the names of the distributees, and the sum due to each. This is done in the presence of the administrators, and is considered the act of the court, as such made out when a copy of the record is called for. In ordinary cases where parties live in the country, no difficulty arises or can arise: if the clerk has not leisure at the moment, he takes a memorandum of the names and makes the calculation, and completes the record at his leisure. Unfortunately in this case no record was ever made; all is yet on loose paper; still I consider this the decree of the court, made out, adopted, and decreed by them; for no human being who knows him who made it, can surmise it was done in any other way than as I have stated it; that is, to relieve the court from the labour of calculation and writing, and shown to them. But, if under our practice this was not conclusive, or for any of the above reasons should not be held so, after the lapse of time it ought to be prima facie evidence. John Alexander left Ireland in 1774; to bring proof by persons who knew him is not to be expected; witnesses who did not know him cannot tell who were his relations; we may as well give the estate to those in whose hands it is. The decree was made in 1812; the administrators have acted on it, paid some of the persons, and paid the expenses of feigned issues and the counsel of the defendants. It is too late for them to deny there is a decree.
      By our law a man may put in a plea after the jury have been sworn, and if the other party is surprised and wishes time to meet it, the jury are dismissed, (on payment of costs by the party putting in the new plea in some districts;) this being by positive enactment, it is error to refuse such plea unless it is plainly frivolous or totally inconsistent with former pleas, (as non est factum, after another plea which expressly admitted the execution of the instrument and avoided the effect of it.) This case is singularly circumstanced; the distributees all live or did live in Ireland. The plaintiff sues as administrator of John Alexander. The defendant may put him to prove that the John Alexander, whom he represents, was the son of Hugh Alexander, of the parash of ---, in the county of ---, and the brother of Mrs. Jamieson, Mrs. Stewart, and Mrs. Gilleland, named in the feigned issue, and in the paper on which the decree is founded.
      There was then error in this; and also in refusing to permit the defendants to prove that the plaintiff's intestate was not the son of Hugh Alexander and not the John Alexander named in the feigned issue and the paper before-mentioned.
      GIBSON, C. J., delivered the opinion of the majority; Duncan, J., and TOD, J., took no part.
      Judgment reversed, and a venire facias de novo awarded.
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Frederick Watts and Henry J. Sergeant ("Watts & Sergeant"); Vol.3 pgs.465 to 469 (California State Law Library, Sacramento, 1/2004)
      STEVENS against HUGHES; Supreme Court of Pennsylvania, Middle District, Harrisburg; 3 Watts & Serg. 465; May, 1842, Decided.
      Error to the Common Pleas of Franklin county.
      Samuel Hughes against Thaddeus Stevens, James D. Paxton, and others. This was an action of trespass quare clausum fregit, which involved the question of title to the locus in quo. The parties stated the following facts, which they agreed to consider in the nature of a special verdict:
      Plaintiff claims under a warrant to Maurice Kennedy, dated 6th of September 1792, for 400 acres and allowance of land, adjoining land that day granted Pascal Hollingsworth, in Washington township, Franklin county.
      Warrant to Pascal Hollingsworth, dated 6th of September 1792, for 400 acres and al. adjoining land granted Levi Hollingsworth, in the same township.
      10th of September 1792; receipt of Francis Johnston, R. G. and David Kennedy, S. G. for purchase money of the above warrants and others.
      19th of July 1799; letter of John Basely to John Holker, inclosing this receipt.
      November 22d 1792; receipt of Mathew Henderson, deputy surveyor, to John Holker, for $60, in part for survey of 27 warrants in South Mountain, Washington township, Franklin county.
      May 2d 1793; receipt of Daniel Henderson, assistant surveyor, for surveys made, $80.
      8th of April 1799; deed of conveyance of John Holker to Samuel Hughes, for his lands in Franklin county and elsewhere.
      Draft of Mathew Henderson, deputy surveyor, dated January 15th 1795, containing this return:
      "This draft describes a parcel of land, situate in Guilford and Green townships, in the county of Franklin. The black lines represent a survey begun and carried on the 20th of June 1793, for Samuel Nicholson, in execution of his warrants in the names of Matthew Duncan, Eliza Duncan, Sarah Nicholson, John Cooper, William Duncan, and William Moulder, dated 3d of January 1793. The circumstances intervening which prevented the completion of the surveys at the time were, that Henry Kaddle had an improvement and warrant adjoining the land intended to have been taken in; it was thought proper that Kaddle's survey should first be made, and bad weather coming on at the same time, the business was postponed until the 3d of April 1794, when a survey was made for Henry Kaddle, and on the 7th of the same month, at the instance of John Holker, who also claims the greater part of the same lands under part of 27 warrants, dated the 6th of September 1792, beginning with Robert Smith and ending with Alexander J. Dallas, the lines formerly run were revised and new ones run, represented above with red ink. The surveys previously made for Mr Holker, and the intermediate vacancies and matters relative thereto, are all represented in a general draft, accompanying this, for the inspection of the board of property, and humbly submitted by MATHEW HENDERSON, D. S. To Daniel Brodhead, Surveyor General of Pennsylvania. N. B. -- Mr Nicholson claims the whole of the land included within the black lines, on his first four warrants above mentioned, and also that space between the same and the Rocky Ridge, in part of his other two warrants. M. H. 15th January 1795."
      Draft of survey made by Thomas Poe, deputy surveyor, of 400 acres and al. made 21st of November 1808, for Samuel Hughes, on warrant to Maurice Kennedy.
      Do. of same, made by same, of 401 acres, made 17th of November 1808, for Samuel Hughes, on warrant to Pascal Hollingsworth.
      Receipt of Thomas Poe, deputy surveyor, for surveying fees paid by Samuel Hughes, dated January 21st 1811, November 13th 1811, and May 28th 1813.
      January 8th 1811; return of surveys made by Thomas Poe, for Samuel Hughes, to surveyor general's office.
      Lands assessed in South Mountain, in Washington and Guilford townships, from year to year.
      Plaintiff also exhibits claim under warrant to John Finley, dated September 6th 1792, and survey on same by Mr Henderson and T. Poe, 382 acres and allowance, for Samuel Hughes.
      Also, warrant to Robert Henry Duncan, for 400 acres, dated 6th of September 1792, and survey on same, by same, for Samuel Hughes.
      Defendants claim under six warrants, to Samuel Nicholson dated 3d of January 1793, in names of Matthew Duncan, Elizabeth Duncan, Sarah Nicholson, John Cooper, William Duncan, and William Moulder.
      The warrant to Matthew Duncan calls for 400 acres of land on the head waters of the Conococheague, in the South Mountain. The warrant to Elizabeth Duncan calls for 400 acres of land, adjoining land this day granted to Matthew Duncan, in the South Mountain. The warrant to Sarah Nicholson calls for 400 acres of land, adjoining land this day granted to Elizabeth Duncan. The warrant to John Cooper calls for 400 acres of land, adjoining land this day granted to Sarah Nicholson, in the South Mountain. The warrant to William Duncan calls for 400 acres of land, adjoining land this day granted to John Cooper, in the South Mountain. The warrant to William Moulder calls for 400 acres of land, adjoining land this day granted to William Duncan, in the South Mountain.
      Survey and return thereon made by M. Henderson, deputy surveyor, 15th of January 1795.
      This was the same return of survey as that stated in the plaintiff's claim of title. The title under these warrants became duly vested in the defendants.
      The question presented was, whether the return of survey made by Mathew Henderson, in 1795, was sufficient, and vested a good title in the warrantee? or, whether the title of the defendants was not abandoned? The court was of opinion that the general survey and return of the whole quantity of land was not a valid return: and that the surveys and returns of each separate tract, in 1811, gave a good title to the plaintiff, for whom judgment was rendered upon the special verdict.
      COUNSEL: Stevens, for plaintiff in error. When the purchase money is paid to the commonwealth, there arises no presumption of abandonment; and as the survey of the defendants was first made and returned, the only question is, whether that was a good return. There was no necessity for running the division lines. But if it be an irregularity, who has a right to complain? One who takes subsequent warrants and knowingly locates them upon land which had been previously appropriated? This is said in 8 Serg. & Rawle 181, to be against conscience, and not to be looked upon with favour: and in 3 Binn. 26, it is said that such knowledge estops the party from taking any advantage of such an irregularity. But although as to the commonwealth, it might be objectionable, yet if no objection be made, and the return be accepted, it does not lie in the mouth of a stranger to gainsay it.
      Chambers, for defendant in error. The title of the plaintiff was founded upon his warrants of 1792, duly and regularly executed in 1808, and returned in 1811, and so remained without caveat or objection for thirty years. This is a perfect title, unless there is an intervening one duly prosecuted. The defendants' warrants were of a subsequent date and have never been regularly executed or duly prosecuted by having surveys returned upon them, to this day. Each warrant originates a title to a distinct and separate tract of land, for which a patent is to issue; and this designation must be made within a reasonable time. A general connected draft is not recognised as the evidence of title, but as mere illustration.
      The opinion of the Court was delivered by KENNEDY, J. -- This was an action of trespass for entering the lands of the plaintiff below, and cutting and carrying away the timber growing thereon. The plaintiffs in error were the defendants below. The parties, by agreement, stated a case in the nature of a special verdict, upon which the court rendered a judgment in favour of the plaintiff against the plaintiffs in error. The plaintiffs in error, by the case stated, admit the entry upon the lands and the cutting, &c. of the timber, but claim to be the owners thereof in fee. They derive their title from six warrants, dated the 3d of January 1793, each calling for 400 acres, though not particularly for the land in dispute, taken out and originally owned by Samuel Nicholson; upon which the deputy surveyor of the district, in 1794, surveyed 1626 acres 152 perches, by running and marking on the ground the exterior lines only, and returning, in 1795, into the surveyor-general's office, a general diagram thereof, without making any division lines, or designating, in any way whatever, what particular part of the whole body of the land was intended to be applied to each of the respective warrants. The defendant in error, who was the plaintiff below, derives his claim to the land from two warrants, bearing date the 6th of September 1792, each calling for 400 acres, but not for the land in contest, upon which surveys were made in 1808 and returned into the surveyor-general's office in 1811. The purchase money, in full, was paid to the state, for the lands mentioned in the warrants of both the parties, but no patents appear to have been issued upon any of them. Now, as the warrants, under which the parties respectively claim, do not appear to be descriptive of the land in controversy, the question of title, which remains to be decided, depends entirely upon the priority of survey, made and returned into the surveyor-general's office. If the survey made and returned by the deputy-surveyor upon the warrants under which the plaintiffs in error claim the land, be a good and sufficient appropriation of the land contained in it, it follows clearly that they are entitled to hold the same; and that the judgment of the court below ought to have been rendered in their favour. It seems to have been long since well settled, that surveys of large bodies of lands are good where the exterior lines only are run and marked on the ground, either for a company or an individual, without running the division lines on the ground. (MAD: more omitted here) And in Ross v. M'Junkin, (14 Serg. & Rawle 364), where two warrants, belonging severally to two persons, were surveyed together, without running or making a division line in any way between them, and a general diagram of the survey returned by the deputy-surveyor into the surveyor-general's office, the survey was held to be good and a sufficient appropriation of the land, so that those who entered upon it afterwards, adversely to the warrantees, were adjudged to be trespassers. Now if such a survey be good, when made under two warrants, owned by two persons severally, it is perfectly clear that it would be equally good if made under six or any greater number of warrants, owned severally by as many different individuals. And it is also perfectly clear, that it must be still less liable to objection, if possible, where all the warrants are owned by one and the same person at the time of making the survey, as was the case here. Because, as the whole of the land so surveyed belongs to the same person, a division of it is altogether unnecessary for the purpose of determining the ownership to any particular part of it. The only possible object for which a division can be required, would seem to be that of issuing patents for it, where an apportionment of it to the several warrants, mentioned in the return of the survey, may be proper, so that a patent may issue on each warrant and the State receive the full amount of fees, that is, $10 upon each patent. But a division and appropriation for this purpose can be made by protraction in the surveyor-general's office, as well as by going on the ground; for it can be a matter of no concern to any one how the division shall be made. The running and marking on the ground the exterior lines of the survey of the whole body of the land, is quite as good notice to the world of its having been appropriated, as if it had been divided and distributed among the several warrants, by running and marking the lines on the ground, around the portions respectively intended to be appropriated to each warrant.
      Judgment reversed, and judgment for the defendants below.
 

Go to the Franklin Co. PA Court Records Part 2
      DUNCAN against CLARK; Supreme Court of Pennsylvania, Middle District, Harrisburg; 7 Watts 217; May, 1838, Decided.
      DUNCAN'S Appeal; Supreme Court of Pennsylvania, Harrisburg; 43 Pa. 67; May 29, 1862, Decided.

Go to the Franklin Co. PA Court Records Part 3
      HUGHES versus STEVENS; Supreme Court of Pennsylvania, Harrisburg; 43 Pa. 197; June 26, 1862, Decided.

Go to the Franklin Co. PA Court Records Part 4
      THOMPSON v. KYNER; Supreme Court of Pennsylvania, Harrisburg; 65 Pa. 368; May 10, 1870, Argued; July 7, 1870, Decided.

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