1821. Ross, contra, insisted, that the patent was not admissible. It recited a title, no part of which was proved. The Com- Pittsburg. monwealth cannot make a title for a grantee, so as to divest ALLISON that of a third person claiming under warrant and survey. If the patent were read, it might happen that the party would not be able to produce the evidence of the title recited, and then it would be altogether irrelevant and useless. Such evidence is, in its nature, primary, and should precede the production of the patent. He cited, 1 Binn. 88. 2 Serg. & Rawle, 280. 450. The opinion of the Court was delivered by GIBSON J.-To shew that the title of William Marshal, under whom both parties claim, had been vested in the plaintiff below, his counsel offered in evidence, a mortgage to the plaintiff, together with the record of a scire facias, and judgment on it, shewing a sale to the plaintiff, and also a deed from the Sheriff of the county to all which the counsel of the defendant objected, on the ground that there was no legal service on the mortgagor, and that consequently the judgment, which was entered up by default, was irregular. But assuming this to be true, a Court can never inquire into the regularity of the proceedings of another Court, coming collaterally before it: and so far is this principle carried, that a conviction by a justice of the peace having jurisdiction, is, while unreversed, conclusive of the matter adjudicated, even in an action against himself. No alleged irregularity of the proceedings, therefore, could affect the competency of the judgment on the scire facias, or of the Sheriff's deed founded on a sale in pursuance of it. Independently of the proceedings, the mortgage was evidence of itself, being a good foundation for an ejectment against the mortgagor, or those claiming under him. But certain articles of agreement between Marshal and one Elliott, who assigned his interest to the plaintiff, were offered and objected to. By these it was agreed, that Elliott, in consideration of one hundred dollars paid by him, was to have a moiety of Marshal's interest, under his warrant and survey. No one can entertain doubt of the competency of this part of the evidence. v. RANKIN. 1821. ALLISON υ. RANKIN. On the other hand, however, the defendant offered a paPittsburg. tent from the Commonwealth to himself, which recited a sale for taxes by the commissioners of the county, to one Allison, and a deed from Allison to the defendant, which was rejected. The question was not on the competency of those recitals, but whether the patent was evidence at all before the intermediate links were supplied by evidence of the regularity of the commissioners' sale, and by the production of the deed to Allison, and also of the conveyance from him to the defendant. I cannot see how this case can be distinguished from Downing v. Gallagher, 2 Serg. & Rawle, 455, where it was held, that the patent was evidence of a grant from the Commonwealth, although it contained recitals of conveyances of an outstanding title, which were clearly incompetent evidence of the facts recited. The only plausible argument against this is, that it would be nugatory to receive evidence which the Court would be bound to inform the jury was altogether nerveless. But was that the character of the evidence in this instance. In Falkner v. The Lessee of Eddy, 1 Binn. 188, it is laid down, that a deed is inadmissible until at least a shadow of title is shewn in the grantor. But here was more than a shadow of title in the Commonwealth, for she had the complete legal estate. The patent therefore vested such a title in the defendant, as would enable him to recover at law, against the title which the plaintiff below set up under his warrant and survey, and which, between him and the Commonwealth, or a person standing in her place, was but an equity. The defendant therefore, by shewing that he was invested with her rights, would have put himself in a situation to take advantage of any circumstance that she could have urged against a specific execution of the contract: but this he could not have done without putting himself in her stead; for as to third persons, a warrant and survey, under our usages, I apprehend, confer a legal title. But taking the matter to be otherwise, still a conveyance of the legal estate is one step towards a complete title, and the defendant having read his patent, might possibly have shewn the regularity of the commissioners' sale, and have produced the intermediate conveyances. If he had failed to do this, he would have been 1821. declared a trustee, and the plaintiff would have recovered. But that was a matter for subsequent consideration, and has Pittsburg. nothing to do with the question of competency. It is the opinion of the Court, that the judgment be reversed. Judgment reversed, and a venire facias ALLISON V. RANKIN WOLVERTON and others against The Commonwealth for the use of HART & Co. IN ERROR. ERROR to the Court of Common Pleas of Erie county. September. In a suit upon a recognisance given by the Sheriff and good conduct, the judgment for his official is not to be en penalty, for the use of This was a scire facias on a recognisance, in the sum of 5000 his sureties, dollars, entered into on the 16th of October, 1816, by the plaintiffs in error, defendants below, Stephen Wolverton, Rufus S. Reed, and Benjamin Wallace, to the Commonwealth of Penn- tered for the sylvania, conditioned that Wolverton would perform the office of Sheriff, for the county of Erie, for the next three years. The those interestscire facias was for the use of Eli Hart and John Lay, ding under the firm of Hart & Co., and was returnable to December Term, 1817. It alleged generally a breach of the condition. The defendants pleaded generally that Wolverton tice not auhad well and truly performed all the duties of a Sheriff, faith-thenticated tra ed, but for the damages sus tained by the party sueing. The transcript of a jus under seal is not evidence. The admis, is sion of incompetent evidence cannot be assigned for error, when the fact it was adduced to prove, i afterwards established by other conclusive evidence. In an action against the Sheriff and his sureties on their recognisance, for a breach of duty in the Sheriff's suffering a defendant to escape, after being in custody; if the plaintiff, after having given notice to the defendant to produce the execution, offer to prove the existence of the execution by parol evidence, and the defendant objects to the evidence, on the ground that a record cannot be proved by parol evidence, and the Court admit the evidence, and the defendant except to their opi nion, he cannot afterwards, in bringing a writ of error, avail himself of the objection to the evidence that there was no proof that the execution had come to the Sheriff's hands. In a suit on a Sheriff's recognisance against the Sheriff and sureties, for his suffering a person in his custody, under an execution, to escape, the insolvency of such person at the time is not evidence. VOL. VII.-N n υ. use of 1821. fully executed all process, paid over all monies, &c. The Pittsburg. plaintiffs replied, setting out a particular breach, that on the WOLVERTON 1st of May, 1817, a certain Edwin Forbes was committed and others to the gaol of the county, and in the custody of the said Common- Sheriff, by virtue of an execution issued by George Moore, a wealth for the justice of the peace, at the suit of Hart, & Co. for 117 dollars HART & Co. and 77 cents, on a judgment obtained by confession, pursuant to the Act of Assembly, and that the Sheriff suffered Forbes to escape and go at large. The defendants rejoined, denying, that Forbes was in custody under the execution, but averring that having applied for the benefit of the Acts of insolvency, he had, at his examination, been committed under those Acts, on a charge of fraud, which the defendants insisted was a virtual discharge of his person, under the execution. The plaintiffs sur-rejoined, that Forbes was in custody under the execution, and on this issue was joined. On the trial of the cause, the plaintiffs offered in evidence a transcript of the judgment of the justice. This was objected to by the defendants, because it was not authenticated under seal, and because the docket itself was the best evidence, and ought to be produced. The Court, however, overruled the objections, and admitted the evidence, and the defendants excepted. The docket itself was afterwards produced and given in evidence by the plaintiffs. The plaintiffs also offered parol evidence of the existence of an execution against Forbes, "having first given notice to the defendants to produce the said execution. The admission of which said testimony was then and there objected to by the counsel of the defendants, on the ground that a record could not be proved by parol evidence." This objection was overruled by the Court, and the testimony admitted, and an exception taken by the defendants. The defendants offered in evidence, the petition of Forbes, together with the schedule of his debts, credits and effects, and all the proceedings of the Court of Common Pleas on the petition. The plaintiffs objected to this evidence, and the Court rejected the evidence, declaring, that in the above case of an escape, it is immaterial what the circumstances and others of Forbes were, whether he was solvent or insolvent; and 1821. that it was not now competent to the said defendants to shew Pittsburg. the insolvency of Forbes, even if they were able to do so; WOLVERTON and that the said schedule was irrelevant and inadmissible. To this decision, the defendants excepted. The jury found a verdict for the plaintiffs for the amount due to them by Forbes, for which judgment was entered. This case was argued at the former term, and again at this term, by Foster, for the plaintiffs in error, and Baldwin for the defendants in error. GIBSON J. delivered the opinion of the Court on all the points but one. TILGHMAN, C. J. having been absent at the argument, and a difference of opinion having arisen between between GIBSON J. and DUNCAN J., on that point, it was re-argued at this term, before all the Judges. GIBSONJ.-The objection that judgment for the Commonwealth ought to have been entered up for the penalty, to remain cautionary for the use of any one that might have cause of action for the official misconduct of the Sheriff, has not been sustained. The Act of the 28th of March, 1803, s. 4. authorises the Commonwealth, or any person aggrieved, as often as the case may require, to institute actions of debt or scire facias, on such recognisance: and provides that a verdict and a judgment shall pass for whatever damages shall be proved to have been suffered. This, of course, excludes all idea of there being one judgment for the use of all concerned, as the foundation of a separate remedy for each, by a scire facias adapted to the peculiar circumstances of the case. Besides this, there are three points which arise on bills of exceptions to evidence. The plaintiffs below offered in evidence a transcript of the proceedings and judgment of a justice of the peace, which was objected to for want of evidence of authentication, it not being a record attested by the seal of any officer; and because it was secondary to the docket itself, which, it was said, ought to be produced. The Court admitted the transcript; but the docket, also, was afterwards produced and given in evidence. It is very clear, the transcript was not V. Common wealth for the use of HART & Co. |