WARREN CO. PA
Formed 1800 from Allegheny, Lycoming
 

CENSUS RECORDS

1800-1820 Warren Co. PA Census
      No Duncan indexed

1830 Warren Co. PA Census
Brokenstraw
Pg. 23  William Duncon      0000,1      - 0

1840 Warren Co. PA Census
Southwest
Pg.417  William Duncan      0000,01     - 0000,01

1850 Warren Co. PA Census
Southwest
Pg.341, #1711, William DUNCAN 45 PA farmer $1000
                  Jemmimah 44 PA
Pg.343, #1251, Thomas SHEFIELD 40 VT carpenter $600
                  Julian 21 NY
                  Morian? (m) 3, Nile (m) 2/12 PA
                  Orphena DUNCAN (f) 13 PA
Pg.344, #1702, William DUNAM (not DUNCAN)
Pg.344, #1764, James DUNAM (not DUNCAN)
 

1860 Warren Co. PA Census
Sugar Grove Twp.
Pg.61, #1311-1311, Richard DENRIAN 36 PA farmer $400-$300
                  Mary 26 NY
                  Florence (f) 80 PA
                  Florida 3, Frank 1 PA
Pg.61, #1312-1312, Ransom L. WOODIN 32 PA M.carpenter $0-$300
                  Lucy A. 26 NY
                  Viola (f) 5 PA
                  Nancy M. DANCAN? 61 R.Island
SouthWest Twp.
Pg.1036, #9-10, William DUNCAN 55 PA farmer $1000-$300
                  Jemima 54 PA
                  (no others)
 

1870 Warren Co. PA Census
Columbus Borough
Pg.45, #81-84, SUGGS, Henry 41 PA ?tenneller? & Innents? $1500-$1000
                  Elmira 37 PA keeping house $700-$0
                  Nelson A. 12, Elmira A. 10 PA at home
                  Clayton (m) 6 PA at home
                  William H. 4 PA
                  Seshi (m) 5/12 PA
                  BROWN, Sarah 17 PA going to school
                  DUNCAN, J.B. (m) 31 NY laborer
Deerfield Twp.
Pg.108, #204-215, DUNCAN, Bell (m) 21 CANada laborer $0-$0, parents of foreign birth
                  Jennie 21 PA keeping house
                  Sula (f) 1 PA, father of foreign birth
Southwest Twp.
Pg.274, #24-24, DUNCAN, John 43 PA lumberman $4000-$1500
                  Abigal 41 NY keep house
                  Mary E. 15, Jane 14 PA at home
                  Caroline 13 PA at home
                  David D. 7, Robert 1 PA at home
                  Corry (f) 9 PA at home
                  CHAMBERS, John ?. 25 NY labourer
 

COURT RECORDS

"Pennsylvania state reports, comprising cases adjudged in the Supreme Court of Pennsylvania" cases argued at May and October and November terms 1880; by A. Wilson Norris, Vol.XIV; Vol.95, pgs.15 to 21 (California State Law Library, Sacramento, 2/2004, "Duncar" as printed)
      JAMIESON v. CAPRON, to use, &c.; Supreme Court of Pennsylvania, Middle District, Harrisburg; 95 Pa. 15; May 26, 1880, Argued; June 14, 1880, Decided.
      Error to the Court of Common Pleas of Warren county: Of May Term 1880, No. 211.
      Debt by J. R. Capron for use of Henry P. Duncan and others, against H. E. Brown, administrator of the estate of E. H. Dunn, deceased, John R. Shaw and H. A. Jamieson.
      This action was brought to recover on two property bonds given in two actions of replevin instituted in the Common Pleas of Warren county. The writ was served on H. A. Jamieson alone, the surety for the defendants in the bonds. Both replevin suits were brought in the names of Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of Stephen Duncan, deceased. The property was replevied and bonds given by defendants. After the cases were at issue on the pleas of ne unques executors, non cepit and property, motions were made by the plaintiffs in both cases to amend the record by changing the title of the suits by substituting the heirs of Stephen Duncar (MAD: sic) (naming them) as plaintiffs, and about four and a half years thereafter the substitution was ordered.
      There were recoveries in the replevin suits in favor of Duncan's heirs, and they undertook, in this case, to collect the amount from the surety in the cases, on bonds executed to the sheriff in the name and for the benefit of the executors, not the heirs, of Stephen Duncan.
      The questions in the case were, had the court the right to make the amendment, and if so, whether a recovery can be had against the surety in the amended cases, on the bonds given in the cases as they were originally brought?
      Trial by jury was dispensed with, and the case was tried by the court, Wetmore, P. J.
      At the trial the records in the replevin suits were offered in evidence, and defendants objected, for the reason that they were not the same cases in which the bonds in suit were given. Objection overruled and evidence admitted.
      The defendant submitted the following points, all of which the court refused:
      1. There having been no recovery by Duncan's executors, in whose favor the original suit was brought, who were the plaintiffs when the bonds in controversy were given, there can be no recovery against the defendant, who was the bail in the bond given by defendants for the property replevied by Duncan's executors.
      2. That the amendment made by striking from the record the original party plaintiffs and substituting in their places entirely different parties, affects only the record of the cases in which the amendment was made, and has no effect whatever on the bond given to the sheriff as far as Jamieson, the bail is concerned.
      3. The court had no power to amend anything farther than the writ, declaration, plea and judgment in the cases in which the amendment was made.
      4. The above-named defendant was not a party to any of the proceedings in the original cases, had no notice of the application of the plaintiffs to amend, and is not bound by the action of the court in allowing the amendment.
      5. That the act of Duncan's executors in procuring the amendment by which others were substituted as plaintiffs in their place, released the surety in the property bond, against whom the substituted plaintiffs seek to recover in this case.
      The court found the facts substantially as set forth above, and in their conclusions of law, inter alia, said:
      "The condition of the bond is that Eli H. Dunn et al. shall appear in court and defend and make good their claim to the timber or lumber. As between the executors and the heirs at law of Stephen Duncan, deceased, it was of no consequence to defendants to whom the property belonged.
      "The construction of the bond of the bail is that they shall not be bound beyond the extent that shall appear by the surroundings of the transaction to have been contemplated at the time of the execution. Law and equity cast the responsibility on the surety, if by the terms of the agreement he assumed it; but this would not be so if the bond of the surety is not within the scope of the undertaking. When the bond was executed there existed the right under the law to add or alter the names of parties, plaintiff or defendant, when a mistake or omission had occurred in the same.
      "If the amendment was within the authority of the court at the time and duly made, the rights of the defendant were subject to the exercise of this authority. It was within the scope of the undertaking of defendant. This position is fully sustained in the case of Hocker v. Woods's Ex'rs., 33 Pa. 466, which rules this case."
      The court then entered judgment for plaintiff for $1095.02. Exceptions were filed by defendant to the decision of the court which were dismissed. This writ was then taken, defendant alleging that the court erred in the above entry of judgment, in the admission of the records of the suits in reolevin, and the refusal of the foregoing points.
      (MAD: arguments of counsel omitted here)
      Before Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., and Paxson, J., absent.
      Mr. Justice STERRETT delivered the opinion of the court, June 14th 1880.
      The contention of the plaintiff in error is that he was discharged from liability as surety on the property bonds in consequence of the amendments in the replevin suits, made without authority of law, as he claims, and without his knowledge or consent. The actions of replevin were brought by Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of the last will and testament of Stephen Duncan, deceased, against Eli H. Dunn et al., who claimed the property replevied, gave bonds to the sheriff in the usual form, and pleaded non cepit and property, upon which issue was joined. Subsequently, on application of the plaintiffs, an amendment was allowed in each case, by which the words "executors of the last will and testament" were stricken out, and the words "heirs at law" substituted, and the names of other heirs at law were added as plaintiffs. As thus amended, the cases were tried and resulted in judgments for the plaintiffs, who then brought the present suit on the property bonds, in the name of the sheriff to their use against the plaintiff in error, and judgment was obtained against him for the amount recorded in the actions of replevin.
      If the amendments were unauthorized, it will scarcely be pretended that the surety in the property bonds would not be discharged. But so far as the records in the replevin suits given in evidence in this case have been brought to our notice, there is nothing to show that the amendments were either unauthorized or irregular; on the contrary they appear to have been within the letter and spirit of our statute of amendments. They consisted, as we have seen, first in changing the character in which the plaintiffs sued from executors to heirs at law, and secondly, in adding the names of other heirs at law who were not executors. Amendments, similar in principle, have been frequently sanctioned: Kaylor v. Shaffner, 24 Pa. 489; Schollenberger v. Seldonridge, 49 Pa. 83; Cochran v. Arnold, 58 Pa. 399; Westcott v. Edmunds, 68 Pa. 34. It is said in Kaylor v. Schaffner, supra, that whenever it appears a mistake has occurred "it is the duty of the court to correct it, taking care that the amendment be not used for the purpose of introducing a cause of action substantially different from that on which the suit was actually though informally brought."
      The case before us is distinguishable from Kille v. Ege, 82 Pa. 102, in this, that the original plaintiffs in that case had no cause of action, either in their own right or in any representative capacity, and were accordingly nonsuited. The plaintiffs who recovered were new parties, brought upon the record two years after suit was commenced, strangers to the original plaintiffs and in no way connected with them by privity of interest or otherwise. The three plaintiffs who originally sued in this case were in fact heirs at law of Stephen Duncan, deceased, and the mistake that appears to have been made was in styling them executors instead of heirs; and that was clearly amendable. There was no change in the cause of action. The basis of claim before as well as after the amendment appears to have been title derived from Stephen Duncan, deceased. The parties brought upon the record were not strangers to the claim. They were joint heirs with the original parties, and all derived title to the property in controversy from a common source.
      It follows, therefore, that the defendant had no available defence, either on the ground that the amendment was unauthorized, or that it introduced a new cause of action.
      But, it is further contended that, inasmuch as there could have been no recovery by the original plaintiffs in their capacity as executors, the effect of the amendment was to change or increase the liability of the surety, and that he was thereby discharged. This would undoubtedly be correct if his obligation as surety for the defendants had not contemplated a trial and judicial determination of the cause of action, on which the replevin suits were based, according to the established course of practice in such cases, because it is a just and reasonable principle of law that the contract of a surety shall not be changed without his consent, express or implied. When a person becomes surety for another in a judicial proceeding, there is an implied understanding that it shall be conducted according to the provisions of law relating thereto. The statutes regulating amendments, as well as other incidents of trial, are as much a part of the contract, in the contemplation of the parties thereto, as if they were embodied in the condition of the bond. There is and necessarily must be this distinction between contracts of suretyship in ordinary business affairs, and those connected with judicial proceedings. If the holder of an obligation against two, with a surety for both, releases one of the obligors, he thereby, for obvious reasons, discharges the surety; but, if a person becomes surety for two administrators or guardians, and one of them is discharged by court, without the knowledge or consent of the surety, his liability for the official acts of the remaining administrator or guardian still continues. The reason of this is, that the surety, when he entered into the obligation for both, knew, or must be presumed to have known, that the court had power to discharge one, and thus devolve all the duties of the office on the other, and in view of this he consented to the condition that the court might exercise any authority with which it was invested, without releasing him from liability as surety. In Hocker v. Woods's Ex'r, 33 Pa. 466, the question was as to the liability of the surety for two joint guardians, one of whom was discharged by the court, and it was held that his liability for subsequent acts of the remaining guardian still continued. The distinctive features of a surety's contract in judicial proceedings are there adverted to, and it is said: "The Acts of Assembly, under which official bonds are given and judicial contracts are made, enter into and modify such bonds and contracts; and the parties must be considered as contracting with the view to what the law prescribes, and as assenting to all the legal consequences of their act." So, in the present case, the plaintiff in error, in becoming surety for the defendants in the actions of replevin, must be considered as having contracted with reference to the law applicable to the trial and final determination of the cases, and with the view of becoming responsible for the amount that might ultimately be adjudged against the defendants.
      What has been said has reference only to such amendments as are authorized by the statutes. If a new cause of action is introduced or new parties brought upon the record against whose claim the Statute of Limitations has fully run, and a recovery is permitted, the rule as to liability of the surety would be different.
      The conclusion reached by the learned judge in this case was correct.
      Judgment affirmed.
 

OTHER RECORDS

"New York Times," New York, New York, 25 Jul 1866 (from Kathy D. Cawley 10/2006)
      Obituary. DUNCAN.- At Irvine, Penn., on Saturday, July 14 [1866], at residence of DR. W.A. IRVINE, MISS EMILY DUNCAN, in the 74th year of her age. (MAD: Irvine, Warren Co. PA)
 

END

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