Duncans in York Co. PA Court Records Part 1

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

Last revised February 2, 2004

YORK CO. PA
COURT RECORDS Part 1
 

"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. 2d, Insimnl computasset.
      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; 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") Vol.2, pgs.302 to 371 (California State Law Library, Sacramento, 1/2004) (MAD: see more on this family in Franklin Co. PA)
      CHRISTIANA DUNCAN widow of SETH DUNCAN against JAMES DUNCAN, SETH DUNCAN, MATTHEW DUNCAN, JOSEPH DUNCAN, WILLIAM DUNCAN, ABNER DUNCAN, JOHN NICHOLSON and HANNAH his wife, WILLIAM MOULDER and MARTHA his wife, JOHN DUNCAN, ADAM DUNCAN, MARY DUNCAN and WILLIAM SCOTT, executor of SETH DUNCAN; Supreme Court of Pennsylvania, York; 2 Yeates 302; April, 1798, Decided.
      DOWER. The tenants pleaded three pleas. 1. They set forth the last will of Seth Duncan, whereby he devised to his wife Christiana the demandant, her feather bed and furniture, thereto belonging, a desk, a looking glass, a spinning wheel, her saddle, three common chairs, a walnut table, a cow of the value of 4£., kitchen furniture of the value of 3£., together with the interest of one third part of the price of his real estate when sold, for her support during her natural life. -- He also directed, that all his estate both real and personal, should be sold to the best advantage as soon as convenient, and the before mentioned legacies taken out of the same; and after the decease of his wife, the said one third of his real estate should be divided amongst five of his children particularly mentioned; and if any of his children should die before they arrived at the age mentioned for the payment of their legacies, or without lawful issue, then their shares to be equally divided between the said five children, or the survivors of them, or any of them; which devises and bequests to and in favour of the said Christiana in the last will and testament of the said Seth, were in lieu and satisfaction of her dower, and by the said Christiana accepted, elected and chosen in lieu and satisfaction of her dower. 2. And for further plea, the said tenants say, that the said Christiana Duncan together with John Bittinger as guardians of Adam Duncan and Mary Duncan, minor children of the said Seth Duncan deceased, on the 26th March 1795, did petition the Orphan's Court of the said county of York, setting forth the several lands and tenements whereof the said Seth died seized, and that after making and publishing his last will aforesaid he had further lawful issue, the said Adam and Mary who survived their said father, neither of whom was provided for in the said will, and praying the said court to award an inquest to make partition of the said lands and tenements, with the appurtenances, so as to allot, assign and lay off unto the said Adam and Mary, one equal twelfth part of the same lands and tenements, for the purparts and shares of them respectively; but if partition could not be made as aforesaid, without injury to or spoiling of the whole, then to value and appraise the same. Whereupon the said court then and there ordered, that a writ should issue to the sheriff of the said county, commanding him to go in his proper person to the lands and tenements aforesaid, with the appurtenances, and in the presence of the parties aforesaid or their guardians, (by him the said sheriff having been first warned, if upon being warned, they will attend,) and the same lands and tenements by the oaths or affirmations of twelve good and lawful men of his bailiwick, having respect to the true value of the whole of the said premises, to cause to be divided, so as to allot, assign, and lay off to the said Adam and Mary each, one equal twelfth part of the said lands and tenements, if the same can be so divided without injury to, or spoiling of the whole; but if the same will not admit of such division, then to inquire into the true value of the whole of the said premises with the appurtenances undivided, and the said inquisition so openly and distinctly made, under his hand and seal and the hands and seals of the jurors aforesaid, together with the said writ, to return to the next Orphan's Court after making the said inquisition. And afterwards, to wit on the 23d June 1795, Godfrey Lenhart, esq., high sheriff of the said county, in pursuance of the said writ, made return to the said Orphan's Court, whereby it appeared by the oaths and affirmations of twelve good and lawful men of his bailiwick, that the said lands and tenements would not admit of such division as aforesaid, and that they had valued and appraised the same undivided at and for the sum of 1348£. 17s. 10d., which said valuation was then and there confirmed by the said court, and the lands and tenements aforesaid, with the appurtenances, were decreed by the said court to James Duncan, eldest son and heir at law of the said Seth Duncan, he paying to the widow and children of the said deceased their respective shares thereof, as then settled by the said court; and the said court did then and there further order, that he the said James Duncan should pay to the said Christiana Duncan, the widow of the said deceased, yearly and every year during the term of her natural life, the sum of 26£. 5s. 7 1/2d. in full of her right or claim of dower of and in the lands and tenements aforesaid, and that he the said James, upon making the several payments aforesaid, or giving good security for the same, should hold the said lands and tenements, with the appurtenances, in as full and ample a manner as the said Seth Duncan, his father, in his life time, held and enjoyed the same, exonerated and discharged from the further claims of the said widow and children of the said deceased, and all persons claiming, or to claim the same under them or any of them, as by the proceedings of the said court remaining of record in the said Orphan's Court will more fully appear. And the said tenants further in fact say, that the said James Duncan, by virtue of the said decree, entered into the lands and tenements aforesaid, with the appurtenances, and thereof became seized; and that the lands and tenements in the said petition, inquisition, and decree of the said Orphan's Court mentioned and appraised, were all the lands and tenements of which the said Seth Duncan died seized, and are the same lands and tenements mentioned in the writ of dower aforesaid; which said sum of 26£. 5s. 7 1/2d. so ordered and decreed to be paid by the decree of the said Orphan's Court, yearly and every year to the said Christiana Duncan, during her natural life, was in lieu of and in full satisfaction of her dower in the lands and tenements aforesaid in the said writ of dower mentioned, agreeably to the acts of assembly in that case provided. And all this they are ready to verify; wherefore they pray judgment, whether the said Christiana ought to have or maintain her said action thereof against them, &c.
      The demandant replies, that the said devises, bequests, and sum of money, were not in lieu and satisfaction of her dower, and that the same were not accepted, elected, and chosen in lieu and satisfaction of her dower aforesaid, and this she prays may be enquired of by the country; and the tenants in like manner, &c.
      There was likewise a third plea, on which an immaterial replication was filed, and a demurrer thereto. Two witnesses were examined, to prove that the widow had received the specific articles devised to her by the will, shortly after her husband's death.
      On the part of the demandant, it was asserted, that it was uncertain whether the devise to her was in lieu of dower. A rough draft of the will, in the testator's hand writing, was therefore offered in writing, wherein the words "in lieu of "dower," followed the devise to the widow; but these words being omitted in the will executed, evinced that the testator well knew the force of the expressions, and had left them out intentionally.
      The court declared, they could not rule that this paper should be received in evidence. The will must be judged of ex visceribus suis. Here there is neither a latent nor patent ambiguity. But they thought very differently of the effects of the paper produced, and that it clearly appeared on inspection thereof, that the words were omitted by the unskillfulness of the scrivener, and not from any desire of the testator. They therefore submitted to the adverse counsel, whether they would not consent that it should go to the jury, to which they readily agreed.
      It was at length concluded on, that the court should finally determine the point, whether the widow was entitled as well to her dower as to the bequests under the will, and that no future action should be brought thereon, and three persons were appointed to value the rents and profits of the lands since the death of the testator.
      The court said, this was clearly a case of election. No difficulty can arise as to the intention of the testator. Though the devise to the widow is not expressed "to be in lieu and "satisfaction of dower," yet it is absolutely inconsistent with and repugnant to such claim. She could not possibly have the interest of one third of the amount of sales of the whole land during her life, and at the same time hold one third part of it unsold for her benefit.
      As to the determination of her election, it must be by plain and explicit acts, under a full knowledge of the circumstances of the testator and of her own rights. Her bare receipt of the specific articles devised to her, without something more, will not produce this effect; nor will her petition to the Orphan's Court, as one of the guardians of the two children born after their father's making his will. And it must be observed, that the law of 4th Geo. 3, passed 25th May 1764 (which governs this case, and is nearly in the same words as the late act of 19th April 1794), only regards the wife after married, or child or children after born, and leaves the devisees under the will in the same state as formerly. Consequently the Orphans' Court could not consider the husband in the present instance as having died intestate, and the widow entitled to the yearly interest of one third part of the appraisement of the real estate during life, in lieu of her dower. The demandant therefore is still at liberty to demand her dower, and may have her election. This case is not so strong in its circumstances as that of Wake v. Wake, where such a privilege was allowed to the widow. Verdict for the demandant.
      COUNSEL: Messrs. Duncan and Clark, pro quer.
 

"Reports of cases adjudged in the Supreme Court of Pennsylvania" by Charles B. Penrose and Frederick Watts, 2nd edition ("Penrose & Watts") Vol.3, pgs.382 to 386 (California State Law Library, Sacramento, 1/2004)
      DUNCAN against ALT and Wife; Supreme Court of Pennsylvania, Lancaster District, Lancaster; 3 Pen. & W. 382; May, 1832, Decided.
      In Error. Error to the Court of Common Pleas of York county.
      This was a case stated in nature of a special verdict, in which the following facts were agreed on:
      Andrew Lau made, and published his will and died. In that will, which is dated on the twenty-first of March eighteen hundred and sixteen, and was admitted to probate on the twenty-fifth of February eighteen hundred and twenty-two, he directs his personal estate to be sold, and after paying his debts, bequeaths one-third to his wife; and two-thirds to be equally divided among his children, "he had with his first wife," ten in number, naming them, of whom Elizabeth, the plaintiff, is one. The testator then goes on and devises as follows:
      "I give and bequeath unto my eldest son, Michael, my dwelling plantation, to his heirs and assigns for ever, that is, one hundred and fifty acres, and allowance I allow to him, and the overplus thereof, I keep for myself, on the south side; for which one hundred and fifty acres, he my said son Michael shall pay, and give out the full sum of twenty-two hundred pounds lawful money, that is to say, my son Michael shall pay seventeen hundred pounds of the aforesaid sum to me, and to my wife, and to my said children, in manner as shall hereafter be said. Fifty pounds he is to pay to me, on the first of April eighteen hundred and sixteen, then on the first of April eighteen hundred and seventeen, twenty-five pounds again, and then so on until after my decease. On the first day of April, after my decease, my son shall pay one hundred and fifty pounds in such manner: thirty pounds to my wife, and the one hundred pounds is to be divided to and amongst my ten children by my first wife, in equal shares, to them in the meaning aforesaid; and then so on, yearly, on every year, on the first day of April, thirty pounds to my said wife, if she remains my widow, and one hundred and twenty pounds to my children, in manner aforesaid, till the seventeen hundred pounds is fully paid. But in case my wife should die else marry before the said seventeen hundred pounds shall be paid, if she marries again, she shall have the thirty pounds no more, after her marriage or death the yearly payments of one hundred and fifty pounds is to be divided to and amongst my said children in the meaning aforesaid; now I order for the five hundred pounds, after the seventeen hundred pounds is paid, if my said wife is then alive, and my widow, my said son Michael shall pay yearly the interest of the five hundred pounds to my said wife. The said five hundred pounds shall lay on the land to my son so long as my wife shall not marry or else die. After her decease, my said son shall pay on the interest of the said five hundred pounds until after her death or marriage as aforesaid, (after the seventeen hundred pounds is paid as aforesaid). Then after her marriage or decease, my son Michael shall pay the said sum of five hundred pounds, to my other children which I have by my present wife Magdalena, in manner as shall hereafter be said, in three equal shares or payments; the first payment on the first of April, after her decease, and so on yearly, until the five hundred pounds is fully paid to my children, which I have by my second wife Magdalena. (But this I mention, the five hundred pounds shall not be paid, nor no interest thereon, until after the said seventeen hundred pounds is paid.) The said five hundred pounds is to be divided in equal shares alike to and amongst my other children, which I had by my second wife."
      By a codicil to the above will, dated the seventeenth of November eighteen hundred and twenty-one, the testator bequeathed another plantation, containing sixteen acres, to his wife Magdalena, during her life, or so long as she remained his widow, "and after her death or marriage, the same to be sold, and the proceeds of sale, to be equally divided amongst all" his "children." And he also devised to his son Michael, in fee, "the overplus of the plantation, willed to him as above, lying on the south side of the one hundred and fifty acres."
      In the District Court of York county, the defendants in error, Philip Alt and Elizabeth his wife, who were plaintiffs below, brought an action of debt for the purpose of recovering the proportion of Elizabeth, his wife, the testator's daughter, by his first wife, in the sum charged on the one hundred and fifty acres of land devised to Michael against the executors of Andrew Lau, with notice to the terre tenant. Judgment was rendered in this action, on the fourteenth of April eighteen hundred and thirty-one, and under it a levy was made of the land devised to Michael, which was sold by Andrew Duncan, Esq., sheriff of York county, for two thousand one hundred dollars; against whom as defendant this amicable action was entered. And the questions submitted were:
      1. "Are the seventeen hundred pounds to be paid out of the proceeds of sale, in preference to the five hundred pounds in the will mentioned? If so, judgment for the plaintiff for two hundred and forty dollars."
      2. "Are the seventeen hundred pounds, and the five hundred pounds, to be paid out of the proceeds of sale, pro rata? If so, judgment for the plaintiff for two hundred dollars."
      The Court of Common Pleas gave judgment for the plaintiffs, for two hundred and forty dollars, and Duncan, the defendant brought the case by writ of error to this court.
      The opinion of the court was delivered by GIBSON, C. J. -- A pecuniary legacy may undoubtedly be exempt from abatement, as in the case of a wife or child destitute of other provision, or of a legacy given in lieu of a dower, or of a preference manifestly intended. But these cases are few in number, dependent on peculiar circumstances, and attended with strong expressions of intention. They are, in fact, exceptions to the general rule that equality is the highest equity, which a chancellor is eager to enforce, whenever it is not controlled by countervailing equities, or by an intent too manifest to be disregarded. The interest of the widow, which is frequently an obstacle to the enforcement of it, is not involved here. Ample provision was made for her by the bequest of a third of the personal estate, a devise of land for life, or during widowhood, and an annuity charged on the fund in question, which could not, however, be affected by contribution among the children, the inquiry being not whether the annuity shall abate with the rest, but whether the other legacies shall be brought into average. Putting her interest out of view, then, what is there peculiar in the case? Both the land and the person of the devisee are charged with the twenty-two hundred pounds, which is directed to be paid out. Out of what? Undoubtedly the land devised to the son, who is thus made a purchaser of the shares of the other children. By a codicil made a few years afterwards, the testator gave to the devisee over again the residue, after deducting that sum, which is entirely indicative of an intent that, till satisfaction made, the shares of all the children should remain in the land. But the five hundred pounds, part of the gross sum, are expressly charged; and if the seventeen hundred pounds are not charged likewise, the consequence to the children of the first wife must be postponement instead of preference. Now, having charged the land and the person of the devisee, too, it is unreasonable to suppose the testator ever anticipated the unparalleled depreciation of real estate that occurred in a few years from the date of his will, or dreamt that any part of these legacies would not be paid. Even so late as eighteen hundred and twenty-one, we find from the codicil already mentioned that he supposed the land to be more than sufficient. There is nothing, then, to indicate an actual intent to prefer a particular class of them, except what is urged by the plaintiff as sufficient evidence of it, a direction that the five hundred pounds shall not be distributed among the children of the second wife till the seventeen hundred pounds are paid to the widow and the children of the first. But though this direction is given with an appearance of emphasis, it could not, as already said, have been suggested by an apprehension of deficiency, nor consequently with a view to provide for such an event. A motive distinct from any presumption of an intended priority of right, may be found in the fact that the children of the first marriage were more advanced in years, and therefore more immediately in need of their patrimony to establish them in business or a profession. Nor is there anything more solid in the exemption of the five hundred pounds from interest before the expiration of the time limited for the preceding payments. An obvious reason for that is, the interest was intended to make up the widow's annuity after the seventeen hundred pounds should be exhausted, before which it would not be wanted. What weight, then, is due to the asked direction for priority of payment? In regard to that, the rule of the court is laid down by Lord Hardwicke, in clear and satisfactory terms. "It is said there are cases," he remarked, "wherein the court has gone a great way to level legatees and make them abate in proportion, as in Brown v. Allen. I do not remember the state of that case, and there may be a difference in the state of it; for if the testator say, 'imprimis,' or 'in the first place, I give such a legacy,' that amounts only to the order in which he expresses his gifts in the will, to nothing more. But if he had said, 'to be paid in the first place,' and it had been in that case a PROVISION FOR A WIFE, I should have doubted of that determination, and should have been inclined to think it was a declaration of his intent that the provision for his wife should come out of the personal estate, and be paid in the first place, because there is ground for that from the preference to a wife and children UNPROVIDED FOR. If indeed in that will THEY ALL STOOD IN EQUAL DEGREE, it was a sufficient ground for the court NOT to presume a preference; but it was a provision for a wife or child unprovided; that is different:" Lewin v. Lewin, 2 Ves. 415. The case of Brown v. Allen, which was the subject of these remarks, is reported in Vern. 31, but briefly and unsatisfactorily, Lord Nottingham being represented to have said, in a few words, that "where a man devises several legacies, as one hundred pounds to one, and fifty to another, &c., there, though he directs the legacy of one hundred pounds to be paid in the first place, yet, if the other legacies fell short, the legatee of the one hundred pounds must make a proportionate abatement of his legacy;" in other words, that a naked direction of the sort gives priority of time, but not priority of right, as has since been determined in Blower v. Morret, 2 Ves. 429. Then to try the matter by the rule of Lord Hardwicke, as just stated, the interest of the widow being out of the case, and the children who claim a preference being provided for, while all stand in an equal degree of consanguinity to the testator, the direction for priority of payment is insufficient to raise a presumption that a preference was intended in point of right. The plaintiff and the other children of the first marriage have had a monopoly of the personal estate, along with the widow; and if they are to come in for a preference, as regards this fund, the children of the second marriage will have been left absolutely destitute, a consequence which the testator could never have intended. Had they even stood in equality of provision, the legacies must have abated in proportion; but as the inequality observable in the case is prejudicial to them in respect of the other parts of the estate, it strengthens their claim to an equality of participation in this. They ought, therefore, to have been let in on equal terms.
      Judgment reversed, and judgment for the plaintiff for two hundred dollars.
 

"Reports of cases argued and determined in the Supreme Court of Pennsylvania" by Frederick Watts, Vol.V, May to October 1836, 2nd ed.; ("Watts") Vol.5, pgs.141 to 145 (California State Law Library, Sacramento, 1/2004)
      DUNCAN against KLINEFELTER; Supreme Court of Pennsylvania, Middle District, Harrisburg; 5 Watts 141; May, 1836, Decided.
      ERROR to the common pleas of York county.
      This was an action on the case by Andrew Duncan against Adam Klinefelter, in which the following special verdict was found.
      In 1830 the plaintiff was commissioned sheriff of the county of York and appointed the defendant jailer and keeper of the prison of said county. In 1832 suit was brought in the circuit court of the United States for the eastern district of Pennsylvania, by Isaac Darst and others, citizens of Ohio, upon a covenant made in York county, Pennsylvania, to said plaintiff, by Jacob Roth, then and always a citizen of Pennsylvania, and judgment was obtained against said Roth for 5,465 dollars 44 cents.
      On the 6th of December 1832, Jacob Roth was arrested by the marshal of the eastern district of Pennsylvania, by virtue of a capias ad satisfaciendum upon said judgment, and on the same day was committed by said marshal to the custody of the defendant, who was then jailer and keeper of the prison of York county by virtue of his aforesaid appointment. On the same day the defendant in said capias ad satisfaciendum, Jacob Roth, made application to George Barnitz, one of the associate judges of the court of common pleas of said county, for the benefit of the insolvent laws of Pennsylvania, and gave bond to the plaintiffs in said capias ad satisfaciendum, to appear in court, and comply with the provisions of the said laws: and the said judge approved said bond, and granted an order to the defendant to discharge said Roth from prison agreeably to the directions of said insolvent laws, in the form always practised in York county. Said defendant took counsel of two counsellors at law, and was by both advised that he had no right to detain said Roth. In pursuance of which said order and advice of counsel the defendant on the said 6th day of December 1832, permitted the said Roth to leave said jail and go at large, and made return thereof to the said court of common pleas, according to the act of assembly. The defendant in so doing acted with good faith, diligence, and fidelity. Afterwards, to wit, on the 7th of December 1832, said Roth voluntarily returned into custody on the request of the defendant, and was subsequently discharged agreeably to the provisions of the act of congress of 1800, relative to insolvent debtors. The said Roth, also, in pursuance of the above mentioned application and bond, complied with the provisions of the insolvent laws of Pennsylvania, and was discharged. In 1833 the plaintiff was sued in the circuit court of the United States by the plaintiffs in said capias ad satisfaciendum, for the escape of the said Roth, and in 1834 compromised said suit, and paid said plaintiff 1050 dollars, in full satisfaction for said escape. If the plaintiff is entitled to recover the 1050 dollars, then judgment to be entered for him for said sum with interest from the 1st of May 1834, but if said 1050 dollars is not the legal measure of damages, then judgment to be entered for plaintiff generally, and a writ of inquiry of damages to issue. If the plaintiff is not entitled to recover, then judgment to be entered for defendant.
      The court below rendered a judgment for the defendant.
      The opinion of the Court was delivered by SERGEANT, J. -- The power of the associate judge of the court of common pleas of York county to discharge Roth from custody under the capias ad satisfaciendum, issued by the circuit court of the United States, on giving bond to take the benefit of the act of assembly of the state of Pennsylvania, for the relief of insolvent debtors, is not sustainable. The act of assembly on this subject, passed the 28th of March 1820, authorises the debtor to apply to the president, or any associate judge of the court of common pleas of the county in which he is arrested, and to give bond with such security as is required and approved by the said judge, conditioned to appear at the next court of common pleas for said county to take the benefit of the insolvent laws of this commonwealth, &c., on which the sheriff is to discharge him. But the provisions of the acts of assembly relate only to debtors held under executions issued from the state courts. It has never been supposed that they intended to give, or could give to the state courts or judges, power to control the process of the courts of the United States in matters within the jurisdiction of the latter. (MAD: part of opinion omitted) And the argument of the defendant is, that the right of the debtor to give bond and be discharged was part of the proceedings upon the execution by virtue of the act of assembly of 1820, at the time this act of congress of 1828 was passed, and, therefore, the act of congress recognises and adopts it. There can be no doubt, that although acts of assembly are not, in themselves, of any efficacy as to proceedings in the courts of the United States, yet if congress, by its enactments, adopts them, they become so far obligatory. But the defect of the argument of the defendant is, that the act of congress of 1828 no where gives authority to the judge of a state court to interfere with, or control, executions issued from the courts of the United States, or proceedings thereupon. If the state law can be applied in the way contended for, it must be by the tribunal in which the execution and proceedings are had, unless an express sanction be given by act of congress to the exercise of such jurisdiction by the state judges. In the case of Beers v. Houghton, which has been strongly urged by the defendant's counsel, the application of the state laws to the case was made by the judge of the circuit court of the district of Ohio, who, under the authority given by the proviso in the third section of the act of congress of 1828, made a rule of court, that under neither mesne nor final process, should any individual be kept imprisoned, who, under the insolvent law of the state, had for such demand been released from imprisonment: and it was held by the supreme court of the United States, that this rule protected the bail of a defendant thus released, against a recovery on his recognizance in the same circuit court of the United States. It was upon the validity and effect of the rule of court that the case was decided. In the present instance, no such rule of court has been made by the circuit court of the United States in which the capias ad satisfaciendum against Roth issued, authorizing a discharge of a person who had given bond to one of the state judges to take the benefit of the insolvent laws of Pennsylvania. As then the exercise of such authority by the state judges is not recognised by the act of congress, nor conferred by any rule of the circuit court under the proviso, and it cannot be derived from the act of assembly, it follows that none such existed, and that the discharge was unauthorised. It is fully settled, that an officer is not justified in obeying the order of a judge, or court, having no jurisdiction in the matter. The only question that remains is, whether the jailer is liable over to the sheriff for the loss he has sustained by the escape which the former permitted.
      The jailer is the sheriff's deputy or servant, appointed to perform the duties appertaining to that office. The sheriff is liable for his acts, and he is responsible over to the sheriff for a non-performance of duty by which the sheriff is injured. The most important of the duties of the jailer, and one which he assumes to perform by the acceptance of the office, is to keep safely all prisoners lawfully committed to his custody, until discharged by due course of law. As the servant is liable to his master for breach of duty, in consequence of which a loss is sustained by the master, so if the jailer suffer a prisoner to escape, and the sheriff is thereby made responsible, the jailer is liable to him in an action on the case. The sheriff may, and often does take a bond of indemnity, with security, from the jailer, to perform the various duties which by law are imposed upon him, and to save him harmless from the breach of them--but this is done for the security of the sheriff, and without such bond, the law makes the jailer liable upon the promise implied in his undertaking the office, for all that his duty requires him to perform. The circumstances mentioned in the case stated, that the defendant took advice of counsel, and acted with good faith, diligence and fidelity, do not seem to be sufficient to exempt him from liability. A loss has been sustained, which must be borne by one of these parties: and it ought to be borne by him whose act or default has occasioned the loss, and not by him who had no connection with it. Where one undertakes an official duty, and fails in the performance of it, his ignorance or mistake of the law, or the honesty of his motives and conduct, do not exempt him from civil responsibility, where damage is sustained by his non-performance. The defendant's act was entirely his own; the sheriff was not consulted and had no participation in it, so far as appears.
      On the question of the amount which the plaintiff is entitled to recover, a considerable difficulty arises from the manner in which the case stated is drawn up. The sum paid by the present plaintiff to the plaintiff in the execution was 1050 dollars, after suit had been brought in the circuit court for the escape. It is not stated whether that suit was debt or case; and a material difference between the two exists. In debt, for the escape of one held in execution, the jury, if they find for the plaintiff, must find the whole debt and costs. But in case, they may find such damages as they think proper. The mere payment of the sum of 1050 dollars, would not, of itself, make that sum the measure of damages, because the compromise was made by the plaintiff without the consent or knowledge of the defendant that we know of. As a general position, the sum of 1050 dollars thus paid, is not the legal measure of damages; even if it be the true standard of what the plaintiff on the execution would have recovered against the sheriff. Circumstances might exist between the sheriff and the defendant, which would lessen or take away altogether the damages claimed of the defendant. At the same time it is proper to remark, that the circumstances mentioned in this case are not of that character. In this uncertainty it is, perhaps, the safest course to refer the question of damages to the jury of inquiry, in whose power it will be to give to the plaintiff the whole money paid, with interest, or less, if there be legal ground to diminish the amount, and, in the mean while, judgment to be entered for the plaintiff generally.
      Judgment reversed, and record remitted that judgment may be entered for the plaintiff generally, and a writ of inquiry of damages issued.
 

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      DARST v. DUNCAN; Case No. 3,580; Circuit Court, E.D. Pennsylvania; 6 F. Cas. 1194; 2 Law Rep. 246; November, 1839, Term.
      DARST et al. v. DUNCAN; Case No. 3,581; Circuit Court, E.D. Pennsylvania; 6 F. Cas. 1195; 2 Law Rep. 357; November, 1839.
      ANDREW DUNCAN, Plaintiff in Error, v. ISAAC DARST, HENRY DARST, and JACOB DARST, Defendants; Supreme Court of the United States; 42 U.S. 301; 11 L. Ed. 139; 1 HOW 301; March 14, 1843, Decided.
      COMMONWEALTH v. DUNCAN; Supreme Court of Pennsylvania; 8 Pa. 93; May 22, 1848, Decided.
 

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