Volume 2 — Watts & Sergeant's Pennsylvania Reports

Samuel Parker against William Donaldson. This was an action of assumpsit for goods sold and delivered; to support which, the plaintiff offered in evidence his book of original entries, after giving the following evidence: Hugh Smith sworn. I am a clerk of Mr Samuel Parker, of Philadelphia. He is-a grocer. I was in his employment in April 1838. This book produced here is the book of original entries of Samuel Parker. This entry, dated April 27th 1838, is my handwriting.

In the autumn of 1838, Robert Kelly, being the owner of a tract of land in Union county, let a field of it to the defendant, Jacob Nagle, for the purpose of sowing it with rye in the course of the same autumn. Nagle was to furnish the seed, to cut and secure the rye when it should ripen, afterwards thresh and clean it, and then deliver to Kelly one-third part thereof at such place as the latter should appoint. Nagle accordingly tilled the field, and sowed it with rye.

Dennis C. Caul against Henry Wilhelm. This action originated before a justice, and was brought into the Common Pleas by appeal. It was founded upon a contract between the parties, by which the plaintiff agreed to do the carpenter work of a house for the defendant, for which he was to receive $75 from the defendant, to be paid as the work progressed.

Henry Nicholas and wife, Walter Smirall and wife, and Lyman Barney and wife, against Stephen Cook. This was an action of ejectment for fifty acres of land. • The plaintiffs were the heirs of Thomas Mattison, who died 24th of December 1815. Before, and at the time of his death, he was in possession of the premises in dispute.

ERROR, to the Common Pleas of Bradford county. Eli Gibbs against David Bartlett and Jesse Woodruff. This was an action of debt upon a replevin bond. Alexander Neely, Thomas Pearsall, and Nathaniel Pearsall sued out a writ of replevin against Eli Gibbs; whereupon they gáve bond to the sheriff and received the goods.

<p>If a defendant recover a judgment before a justice of the peace for a certain sum, and the plaintiff appeal, and the judgment of arbitrators in court, be “ no cause of action,” neither party is entitled to recover costs.</p>

This was an action of trespass by Joseph Kingsbury against Luther Ledyard, commenced originally before a justice of the peace, from whose decision it was brought by appeal into the Common Pleas.

George Kleckner against John Klapp. This action originated before a justice, and was brought into court by appeal.

<p>A subsequent parol agreement varying the terms of a sealed contract, cannot be tacked to it, so as to make the whole a covenant between the parties.</p> <p>In a scire facias upon a judgment entered on a bond conditioned for the performance of certain things mentioned in a covenant between the parties, it is not competent for the plaintiff to give in evidence a subsequent parol agreement-between him and the defendant, by which the terms of the covenant were altered.</p>

Nathan N. Finney and others against Mark Preston. This was an action on the case, in which the plaintiffs declared upon a written contract by which they agreed to cut, haul, and deliver to the defendant, 1000 white pine saw logs, of a specified size, and within a particular time, to wit, by the 15th of March; for which the defendant agreed to pay them $450 ■— one-half thereof as the work progressed, and the other half on the 1st of June thereafter.

Sidney Hill against Adam Rank. This was an action of debt. The plaintiff in her declaration set out a parol submission, and the following award as the foundation of her action: Whereas, certain unsettled accounts existing between Sidney Hill and Adam Rank, have by their amicable agreement been referred to the award and determination of Jacob Slenker, Jr., and.

Amos Foster against Tyrus Rice and Solomon J. Rice. This cause was referred to arbitrators, who made an award in favour of the plaintiff for $243, from which an appeal was entered by Solomon J. Rice, who took the oath required by law, and entered into recognizance with Clark W. Bailey as his security. The only question was, whether this should be considered an appeal for both.

Robert P. Maclay against Jacob Reichly. This was an action to recover the sum of #150, part of a bet made by Michael Kleckner with Jacob Reichly, on the result of the election. #300 were deposited by each party in the hands of Samuel Aurand, as the stake-holder. After the election, and while the money was yet in the hands of the stake-holder, Kleckner gave him this notice: “ Mr. Samuel Aurand.

The Commonwealth, for the use of William Swetland & Co., against Thomas Myers and others. This was an action of debt, upon the official bond of Thomas Myers, sheriff of Luzerne county.

The overseers of the poor of Lewisburg against the overseers of the poor of Augusta township, Northumberland county. This case involved the question whether George Conrad had a legal settlement in Augusta township, by reason of a devise to him of a tract of land in that township, or whether his settlement was in Lewisburg, by reason of the payment of taxes there.

Caleb Carmalt, assignee of Robert H. Rose, against Simeon Cook, with notice to Isaac Post, terre tenant. This was a scire facias upon a mortgage, and the same case which is reported in 8 Watts 406.

Clarendon Rathbone presented his petition to the court for the appointment of viewers to assess damages for injury done to his land by the location of a rail-road by the Tioga Navigation Company through it.

John Beirer against Robert Morrison. This was an action of ejectment for about half an acre of ground. The plaintiff gave evidence as follows: Jacob Steelsmith sworn. I know the land in. dispute. Question by Mr. Foster: — Who lived on the land, of which this was part, in 1803? Objected to by defendant; objection overruled by the court, and exception by defendant. I know the lines of the tract, and have known them thirty-five years.

James Dickey against Henry M’Cullough and Thomas Donnelly. This was an action of ejectment for two lots of ground and a grist-mill and saw-mill in Tarentum. There was also pending between the same parties an ejectment for seven acres of land in East-Deer township, which depended upon the same evidence, and was tried at the same time.

<p>The suing out of a fieri facias, and the collection of the costs upon a judgment in ejectment, is inconsistent with the prosecution of a writ of error by the same party, which, under such circumstances, will be dismissed on motion of the defendant in error.</p>

Thomas Cox against John Rhey and Samuel Livingston, administrators of Thomas Livingston deceased. Thomas Livingston, in his lifetime, was an attorney at law, and this suit was brought against his administrators for negligence of their intestate, in not bringing suit upon a note placed in his hands by the plaintiff for collection, by reason of which the money was lost.

THE heirs at law of James M’Kee and Eleanor M’Kee, deceased, against John Lamberton and David M’Clelland. Writ of Error to the District Court of Venango county. Held: in those cases, that the statutory claim for improvements was confined to the case of a recovery against minors and orphans, would any pretence have been then advanced — so far as we can infer — that the improver could claim against an adult ? Surely not.

This was an action of trover by A. L. Voorhis against John Freeman, for the conversion of one hundred and six soft and chilled rolls, which were part of the machinery of an iron-rolling mill situate in the city of Pittsburgh, and which were admitted to be of the value of $3863. The plaintiff claimed the property by virtue of a sheriff’s sale under an execution on a judgment which he had obtained against Leonard Sample, a former owner of the mill.

S. and A. Law against William Hall and Samuel M’Kelvey, trading in the name of Hall and M’Kelvey. Action on the case in assumpsit. The writ was returned served on M’Kelvey, and non est inventus as to Hall. Findlay appeared specially for M’Kelvey and pleaded non assumpsit. Van Amringe’s appearance was marked generally on the margin of the docket. The cause was tried upon its merits, and a verdict and judgment rendered for the plaintiff for #684.05.

John Sergeant against Hopewell Ford. This was an action of ejectment for twenty-one acres of land, in which the plaintiff gave the following evidence: A deed from Thomas Ford and Hopewell his wife, dated 17th of May 1831, to Charles Ford and his heirs, for one hundred and twenty-one acres, bounded as follows, &c.; then follows thus, (“excepting twenty-one acres for and during his natural life, bounded as follows, beginning at James Ford’s and running north and south, east…

H. H. Yan Amringe, Esq. against James Gray. This was an action on the case in assumpsit to recover the amount of an account for professional services as an attorney at law, rendered by the plaintiff to the defendant.

<p>Chattels delivered to the plaintiff after a claim of property by the defendant in a replevin issued out of the Supreme Court of New York, cannot be counter-replevied in Pennsylvania — at least before the question of property has been determined in favour of the defendant in the prior replevin.</p> <p>The record of such prior replevin may be given in evidence on the plea of property, and need not be specially pleaded.</p>

S. and A. Law against William Hall and Samuel M’Kelvey, trading in the name of Hall & M’Kelvey. This was an action on the case in assumpsit, founded upon two notes of the defendants. The writ was returned served upon M’Kelvey and non est inventus as to Hall. On the margin of the docket entry was “ Findlay for M’Kelvey” and “ Van Amringe.” “ Affidavit of defence filed, and defendant M’Kelvey pleads non assumpsit. Issue.

Allen Kramer against John Hay. This action upon a book-account originated before a justice of the peace, and was brought into court by appeal. Two of the entries in the plaintiff’s books were in the handwriting of George Anshutz, of whose absence the following proof was made: “ I saw George Anshutz between eight and ten weeks ago, at Cincinnati, working on the boat of which he is the captain for New Orleans. He is not in this county now. I believe he resides in Pittsburgh.

Joel W. Lightner against J. E. Will, and James Park & Co. against D. P. Ingersoll. The facts of each of these cases raised the same question. In the latter case, the plaintiffs gave the following evidence:— Pittsburgh, April 8, 1837. Four months after date I promise to pay to the order of Joseph Armorer, four hundred dollars, without defalcation, for value received. (Endorsed) (Signed) Orín Waters.

<p>ERROR to the Common Pleas of Fayette county.</p> <p>William Dixon and wife, and other heirs at law of Samuel Ramage, against Jonathan Ramage. This was an action of ejectment in which the question was whether the will of Samuel Ramage created an estate in fee in the land devised to Jonathan Ramage.</p> <p>“In the name of God, Amen. — Whereas I, Samuel Ramage, of Franklin township, Fayette county, and state of Pennsylvania, being weak in body, but of sound mind and memory, thanks be to Almighty God for the same, do make and ordain this my last will and testament in manner and form following, that is to say, first, 1 commend my soul to Almighty God that gave it, my body to the silent tomb, to be decently interred at the discretion of my executors. That all my just debts and funeral charges be paid out of the first money that is collected ; and as for my property, real and personal, I leave it all to my wife Mary and son Jonathan, share and share alike so long as she remains my widow; and should she marry, my will is that she shall have a decent out-set, and that her and Jonathan take charge of raising the family, and that Jonathan shall furnish his sisters as they grow up with such materials as will enable them to supply themselves with decent bed and bedding, and that as they each arrive to the age of eighteen years, that he shall furnish them with a cow and such furniture as they may choose, which together with their bed and bedding shall amount to fifty dollars, at a fair price. Last, I do constitute and appoint Jonathan Downs and William M’Cray my executors. I do hereby acknowledge this to be my last will and testament.”</p> <p>The court below was of opinion that the will created an estate in fee in Jonathan, and so instructed the jury.</p> <p>argued that where there are express words of limitation used in a devise, a charge of money upon the devise will not enlarge the estate. 2 Binn. 18, 464; 1 Dali. 226.</p> <p>It is manifest, from the language of the will, that the testator designed to dispose of his whole estate; and this is made more apparent by the fact that he has charged it with greatly more than the value of the estate given to his son, if the construction contended for by the plaintiff in error be the true one. Besides, the charge might not be payable until after the limitation had put an end to the estate. 6 Binn. 94; 8 Serg. <§~ Raivle 271; 6 Watts 346; 1 Watts 475; 2 Vern. 690; 2 Atk. 37; 3 Burr. 1618; Coup. 306; 16 East. 221; 2 Binn. 455; 6 Johns. 191.</p>

“ To Benjamin Byerly, Esq. “ My wish, desire, and intention, now is, that if I should not return, (which I will, no preventing Providence,) what I own shall be divided as follows: $100 to my father, together with my bookcase and one silver watch with the initials of my name on it, if I own it; if not, the best that I own, if I have any.

<p>To constitute a valid assignment of personal property against a judgment creditor, there must be a delivery to, accompanied and followed by a continuing possession in the assignee; and where property levied upon in the hands of A, and sold under an execution against him, is claimed by B under a previous transfer, it is incumbent on B in a suit by him against the officer malting the execution to prove that possession accompanied and followed the alleged transfer.</p> <p>Where the possession does not follow as well as accompany a transfer, it is a fraud in law, without regard to the intent of the parties, and becomes a question for the court, and not for the jury.</p>

<p>A partner has no power to bind the firm for his own private debts without the assent of his co-partners; but if that assent be given, it is the province of the jury to judge of the extent of it; and it is error if the court instruct the jury on this point as a question of law.</p>

<p>ERROR to the District Court of Allegheny county.</p> <p>The President, Managers, and Company of the Monongahela Navigation Company against James Gray. This was an action on the case.</p> <p>The declaration claimed from the defendant two instalments of five dollars each on twenty shares of stock, subscribed by him on the books of the Monongahela Navigation Company; setting forth that on the 27th day of July 1836, books were provided (in which defendant subscribed twenty shares) in conformity to an Act of Assembly, entitled, “ An Act to authorize the governor to incorporate a company to make a lock navigation on the River Monongahela,” passed 31st of March 1836, and the supplements thereto. And that by letters patent, dated the 26th of December 1836, the governor incorporated the company under the name of the President, Managers, and Company of the Monongahela Navigation Company.</p> <p>Plaintiffs offered Act of Assembly of 31st of March 1836, authorizing the governor to incorporate the company, &c. Defendant objected that this was a private Act of Assembly, of which the pamphlet laws were not sufficient evidence. The court overruled the objection, and sealed a bill of exceptions.</p> <p>Charter under Great Seal of State, dated 26th December 1836, read.</p> <p>1839 — 24th of June, supplement to Act of 31st March 1836, read — name and style shall be “ Monongahela Navigation Company.”</p> <p>The defendant offered to prove that the change authorized by the charter as to the height of the dams was prejudicial to the company and to the public, and to the defendant by involving him, together with the company, in expenses not contemplated by the original charter, and would subject the works to imminent danger and hazard.</p> <p>Plaintiffs objected that the testimony was irrelevant. The court sustained the objection, and sealed a bill of exception.</p> <p>The court below thus charged the jury : — ■</p> <p>This is an action brought to recover two instalments, of five dollars each, on twenty shares of stock subscribed by this defendant. The obligation is within the form prescribed by the Act of Assembly of 31st March 1836 (pamphlet laws, 263) in the following woi’ds:—</p> <p>“We, whose names are hereunto subscribed, do promise to pay to the president and managers of the Monongahela Navigation Co. the sum of fifty dollars for every share of stock set opposite to our names respectively, in such manner and in such proportions, and at such times, as shall be determined by the president and managers of said company, in pursuance of an Act of the General Assembly of this commonwealth, entitled, “ An Act to authorize the governor to incorporate a company to make a lock navigation on the river Monongahela.”</p> <p>“ Witness our hands this 27th day of July 1836.”</p> <p>It is not denied that the defendant subscribed for the twenty shares of stock. But the defence set up is, first, that the advertisements giving notice that the Board had required the two several instalments to be paid in, did not give the correct corporate name of the corporation; that the notice is to the stockholders of the “ Monongahela Navigation Co.,” w'hereas the Act declares that the name, style, and title of the corporation shall be “ The president, managers, and company of the Monongahela Navigation Co.” This prolix and awkward name was not changed to the “Monongahela Navigation Co.” till the Supplement to Act, passed 24th June 1839. Now, it is to be observed that the very Act of Assembly which confers this long name on the corporation in the form presented to be signed by the subscribers to stock, does not give them this name in all its unnecessary length, but directs the promise to pay to “ The president and managers of the Monongahela Navigation Co.” Nor is there any evidence that there was any other company named the “ Monongahela Navigation Co.;” nor is it pretended that the defendant was, or could have been deceived or led into any error by this misnomer of the corporation, or that he or any other person ever imagined that these advertisements referred to any other company.</p> <p>Such being the case, the jury might well disregard this small mistake as immaterial, even if it were a condition precedent to the defendant’s being hound to pay an instalment, that a public notice shall be given in a public newspaper. But “ it is not so written in the bond.” The promise is to pay in such proportions, and at such times, as shall be determined by the “ president and managers.”</p> <p>The seventh section, which directs notice for thirty days in one or more newspapers in Washington, Green, Fayette, and the city of Pittsburgh, has reference to a penalty of two per cent, per month, and forfeiture of the stock. If this had been an action to exact the penalty, the court would have held the plaintiffs to strict proof of compliance with the Act. But as the action is only on the original contract, and as it is in evidence that the president and managers have determined that two instalments of five dollars on each share shall be paid in, and more especially as there is evidence of a personal demand and refusal to pay by defendant, this defence ought not to avail him.</p> <p>A second objection has been made, to wit': — That the legislature have made a material alteration in - the charter, which gives the larger stockholders more votes than they had at first. Now, this alteration was not imposed on the corporation, but made at their request, (the request, by the way, of defendant’s own agents,) for the purpose of amending a section that was contradictory and obscure, and correcting a palpable blunder. Besides, if this section of the supplement is so injurious to the rights of the defendant, and “ impairs the obligation of a contract,” the objection is suicidal; for if the Act impairs the obligation of a contract, the Act is void, and not the contract.</p> <p>Upon the whole, I would say that it is not consonant with equity or justice, that after a number of persons, trusting to their mutual subscriptions and good faith, have entered on a scheme of this sort, with an expectation both of public and private benefit, and a part have proceeded in good faith to pay their money, and to incur heavy responsibilities for their common benefit, another portion of the subscribers should be suffered to evade their liability for trifling excuses or technical quibbles, and thus bring great loss and injury on those who have trusted to their promises.</p> <p>I see no reason why the plaintiffs should not have a verdict on the undisputed facts of the case.</p> <p>Defendant excepted to the charge of the court.</p> <p>Errors assigned:</p> <p>1. The court erred in receiving the evidence stated in the first bill of exceptions of defendant below.</p> <p>2. In rejecting the evidence offered by defendant below', as stated in his second bill of exceptions.</p> <p>3. In stating to the jury that the mistake in the advertisement of a call on the stockholders for the instalments was immaterial, and that no public notice was necessary of such call previous to bringing suit.</p> <p>4. The court erred in stating that they saw no reason why the plaintiffs below should not have a verdict on the undisputed facts of the case.</p> <p>5. The court erred in rendering judgment for the plaintiffs below, because no such corporation as “ The president, managers, and company of the Monongahela Navigation Co.” was in existence at the time of the bringing of this suit, nor for some time before nor since, as appears by the Act of Assembly read by the plaintiffs below themselves.</p> <p>By the Act of incorporation, the design, duties and powers of the corporation were expressly defined. Upon the faith of this law and its provisions, the defendant agreed to embark his capital, with the belief that he had made a profitable investment. If by any subsequent act or authority, the object to which his money is to be applied is changed, and that without his consent, he cannot be compelled to pay. 3 Penn. Rep. 184. In this case, the Act of 1839 changes a most essential feature in the original Act of incorporation. By the Act of 1836, Pam. Laws 262, sec. 4, no stockholder shall be entitled to more than ten votes; and by the 8th section, the dams to be erected were limited to the height of 4 feet 6 inches. Whereas, by the Act of 1839, a stockholder to a sufficient amount may have twenty votes, and the dams may be made 8 feet high. By the latter change, the expenditure to be incurred by the Company may be double what the defendant anticipated when he subscribed ; and by the former alteration, his voice in determining whether such alteration shall be made is in a measure silenced.</p> <p>The published laws are evidence. 6 Binn. 321; 1 Ball. 463; 4 Cra. 384; 12 Serg. <£• Rawle 203.</p> <p>The Act is permissive as to the change, and not mandatory, and the offer of the defendant below was in effect to show that the Act of the Legislature was prejudicial. If it turns out to be so, the managers will not avail themselves of the privilege, and thus the defendant might avail himself of a change which will never be made.</p> <p>The variance in the notice to stockholders was not such as to mislead, and that in the name of the party plaintiff could only be taken advantage of by plea in abatement.</p>

<p>In a case of doubtful solution, involving a question of conflict between a statute of the state and of the United States, this court will so decide as that the judgment may come in review before the highest judicial tribunal, the Supreme Court of the United States, without the expression of their own opinion, which might conclude the party.</p> <p>A toll-gate keeper upon that part of the National Road which passes through Pennsylvania, would not be justified by the Act of the 13th June 1836, in stopping a coach carrying the United States Mail, for the refusal to pay toll: if toll be recoverable, it can only be by action.</p> <p>If tolls be recoverable from a contractor for carrying the United States^ Mail upon that part of the National Road which passes through Pennsylvania, by reason of the Act of 13th June 1836, it can only be by action, and in the name of the commissioner appointed in pursuance of the provisions of that Act.</p>

Hitchcock, Zimmerly & Co. obtained a judgment against Titus Long, before a justice of the peace, a transcript of which they filed in the Common Pleas, after having a return of nulla bona” upon an execution issued by the justice; upon which they issued process in the nature of an attachment out of court in pursuance of the provisions of the Act of 16th June 1836.

The Bank of Pittsburgh against Thomas T. Whitehead, Charles Ihmsen, Christian Ihmsen, and William Philips. This cause was tried before Dallas, President; it was an action brought by the Bank of Pittsburgh against the present plaintiffs in error, on a promissory note executed by Thomas T. Whitehead after the dissolution of the firm, but for the purpose of meeting, as was alleged, engagements of said firm.

APPEAL by Dr Alexander Black from the decree of the Common Pleas of Allegheny county, distributing the proceeds of the sale by the sheriff of the real estate of Archibald M’Clelland.

Thomas Blackmore and Jacob Poth against Oliver Ormsby Gregg and Christian Ihmsen. This was an action of ejectment for the third part of thirty acres of land opposite Pittsburgh. A verdict and judgment were rendered for the plaintiff for one-fourth part of the premises; and a writ of error was sued out by each party. Mrs Jane Ormsby died seised of a tract of land containing sixty or seventy acres on the bank of the Monongahela, between the bridge and Birmingham.

<p>In an action upon a note, preliminary proof of the hand-writing of the drawers is all that is required for its admission in evidence; all else as to the time, manner and circumstances under which it was signed, must be the subject of subsequent investigation by the jury.</p> <p>An indirect and contingent liability of a witness is not sufficient to exclude his testimony on the ground of interest: it affects only his credibility.</p> <p>The violation of a charter of incorporation cannot be made the subject of judicial investigation in a collateral suit. The only evidence competent to prove the forfeiture of a charter is the judgment of a court directly on the point.</p> <p>The discounting of a note made payable “ in the office notes of the bank,” is not a violation of the 14th article of the Act of the 25th March 1824, which prohibits corporations from dealing otherwise than upon legitimate subjects of banking.</p> <p>A bank which discounts the note of several individuals cannot be affected by a ftaud or misunderstanding among the drawers themselves, unless it participated in it.</p> <p>The pendency of a foreign attachment, as matter of defence, can only be made available by a plea in abatement: if judgment has been rendered upon it, and executed against the garnishee, who is afterwards sued for the original debt, he may plead it in bar.</p> <p>Quaere? May the pendency of a personal action for the same cause in a foreign state be pleaded in abatement!</p> <p>In an action upon a promissory note for the payment of a certain sum in banknotes of a certain bank, the measure of damages is the amount of the note with interest, and not the specie value of the bank-notes; but in executing the judgment, the court will take care that no injustice be done.</p> <p>That a person called as a juror had formed and expressed an opinion, from the statement of others, of a general state of indebtedness by one party to the other, without any particular knowledge of the facts of the case which he is called to try, does not amount to a good cause of challenge.</p>

<p>ERROR to the Special Court of Common Pleas of Warren county.</p> <p>Lumbermen’s Bank against Nathaniel A. Lowry.</p> <p>The plaintiff’s claim was founded upon the following note:—</p> <p>** Three months after date we jointly and severally promise to pay to the order of the Lumbermen’s Bank, at Warren, twenty-six thousand dollars in the office notes of said bank,'or other solvent or current bank-notes. Dated 6th Sept. 1837.</p> <p>N. A. Lowry,</p> <p>Guy C. Irvine.”</p> <p>Most of the points raised on the trial of this cause, were the same as those in the case of Irvine v. Lumbermen’s Bank, {ante, page 190).</p> <p>Upon the trial of the cause, the defendant asked to be permitted to put in the following special plea, which the court rejected, and sealed a bill of exception.</p> <p>After the formal part of commencement, fyc. in due form — sets out that one Sedgwick Benham, of the county of Chautauque, in the state of New York, on the 22d day of February 1838, according to the form of the Statute in such case made and provided in the state of New York, sued out an attachment against the Lumbermen’s Bank, at Warren, being a foreign corporation, for a large sum of money, to wit, $1475, then and there owing from the said bank to the said Benham ; and by virtue of the said attachment and the Statutes of the said state of New York, in such case made and provided, attached the alleged debt or demand of the said bank against the said defendant, mentioned in the said declaration, and held and still holds the same for the payment and satisfaction of the amount due from the said bank to the said Benham; he, the said defendant, being a resident and citizen of the said state of New York. That the proper attorney of the said bank appeared to the said attachment, and an issue was duly joined in fact. The said attachment being duly sued out of the Supreme Court of the state of New York, being a court of general jurisdiction and of record — that such proceedings were had as that a judgment was duly entered and docketed against the said bank, and in favour of said Benham, for the sum of #1742.83, &c.: that said attachment and judgment thereon has not been discontinued, or in any way discharged, &c.; that by virtue thereof, and the laws of the said state of New York, the defendant was restrained and prohibited from paying, or in any manner accounting with said bank for said debt mentioned in plaintiff’s declaration, &c.; that an execution was issued on said judgment and returned, no property to be found, &c.; that the said judgment was duly assigned to one Richard F. Fenton, who, according to the form of the Statutes in said state of New York, in such case made and provided, exhibited his bill, founded upon said judgment, in the Court of Chancery of the said state of New York, being a court of record, and having full power and competent jurisdiction thereof, against the said Lumbermen’s Bank, at Warren, and against the defendant and others, as being debtors to said bank, whereupon such proceedings were had by the said Fenton, as that in pursuance of the statutes, &c., an injunction was duly issued by the said Court of Chancery of said state of New York, and under the seal of said court, against the said bank, and against the said defendant, Nathaniel A. Lowry and others, enjoining and strictly commanding the said bank to desist from collecting their, or any of their claims against the said Nathaniel A. Lowry; and enjoining the said Lowry, under penalty of $10,000, to entirely desist and refrain from making any payments to said bank till the farther order of said Court of Chancery, averring that said injunction was duly served upon said Lowry, and had never been in any way vacated, modified, or impaired.</p> <p>The plea farther proceeds to set out attachments similar in character and eifect with all proper averments as to the service upon Lowry, and effect under the Statutes of New York in favour of Nathaniel P. Copp for $1755, in favour of Jacob Phillips for $1520, and Henry Yan Burén for $1200. In all respects similar to the attachment of Sedgwick Benham, excepting as to the Chancery proceedings.</p> <p>The defendant then gave in evidence the following paper:—</p> <p>“ The Lumbermen's Bank, at Warren, Pa., proffers to William H. Seward to give drafts on Philadelphia, payable four months from date, with 60 days’ interest, on receipt of the usual notice, for all their office notes received by him in the regular course of business. This arrangement may be discontinued at the request of either party, on notice. Warren, September 21, 1837.</p> <p>Robert Falconer, Pres’t.”</p> <p>“We, the undersigned, guarantee the payment of all drafts which may be given in pursuance of the above arrangement. Warren, Sept. 21, 1837.</p> <p>Josiah Hall,</p> <p>Guy C. Irvine,</p> <p>N. A. Lowry.”</p> <p>The defendant then gave in evidence the following drafts, drawn by the president of the Lumbermen’s Bank, in favour of Seward, on the U. S. Bank:—</p> <p>One dated 5th Oct. 1837, payable 5th Feb. 1838, with expenses,.......$1509.42</p> <p>One drawn 29th Sept. 1837, payable 29th Jan. 1838, 1090.80</p> <p>One drawn 20th Oct. 1837, payable 20th Feb. 1838, with expenses,....... 1820.63</p> <p>One drawn 2d Nov. 1837, payable 2d March 1838, for .... 434.30</p> <p>Paid by bank, ... 142.67</p> <p>Balance,..... 293.66</p> <p>And gave in evidence, by the testimony of Benjamin J. Seward, as follows, to wit: — ■“ The above drafts were protested, and paid by N. A. Lowry, on a guarantee made by him, Josiah Hall, and Guy C. Irvine. These drafts were for the paper of the bank, taken at the land office.</p> <p>The plaintiff then proposed to prove that the drafts referred to as Seward’s drafts, and such as were provided for in the agreement, had been paid by the bank to Hall, Irvine, and Lowry, or either of them. Defendant objected to any evidence showing payment to Irvine or Hall; objection overruled, and exception by defendant.</p> <p>The witness proceeded, “ The drafts together amount to $4,848.09. I got from Hall a draft for $1200, which I paid on that account, and paid something more, say $142.67. In a settlement with Irvine, the last of January 1838, the bank gave him credit for two-thirds of these drafts, amounting to $3232, allowing him 3 per cent for his paying the money then, being $96.96; this left a balance due, which has never been paid by the bank, to my knowledge — to wit, one-third less $1200 and $142.67. It was agreed between these men, as I understood it, that they were to take care of these drafts.” On his cross-examination, witness said: “After the drafts were due and protested, Mr Seward called on the bank for the balance that remained after the payments I have stated. Mr Irvine represented himself that he was bound to pay them, and claimed a credit for it. I think he said the drafts were not paid, but he would pay them.”</p> <p>On the subject of this evidence, the defendant requested the court to charge the jury upon the following point:—</p> <p>If the plaintiff gave Mr Irvine credit upon the book, as testified by Mr Falconer, to the amount of $3200, for the purpose of paying the drafts in favour of Seward, and they were not paid by him (Irvine), it cannot prejudice the right of the defendant to his set-off in this suit, for the amount paid by him to Seward upon presentation and demand of the draft as testified by Seward.</p> <p>The court answered this point in the negative.</p> <p>upon the exception to the charge of the court to the jury, cited 10 Serg. Sf Rawle 211; 3 Bos. fy Pull. 235; 7 Serg. ¿f Rawle 238; 2 Term Rep. 282; 8 Cow. 168; 2 Wend. 481; Chit, on Con. 470; 18 Wend. 490.</p> <p>argued that the liability on the guaranty was a joint one, and a repayment by the bank to either of the guarantors was a good discharge.</p>

James M’Kennan against George M’Combs. This was an action of covenant upon an agreement, by which the plaintiff bound himself to deliver to the defendant 200 bushels of clover-seed, at the borough of Indiana, or at the city of Pittsburgh, or 100 bushels at one place and 100 at the other, on or before the 1st of February 1839, for which the defendant covenanted to pay $15 per bushel at the time of delivery.

<p>Each successive writ of scire facias to revive a judgment or recover damages for the breach of the condition of a bond on which the judgment has been rendered, must be founded upon the judgment which immediately preceded it. A recovery upon a writ of scire facias is a bar to any subsequent recovery upon the original judgment.</p>

Andrew Bedell against William Chambers and others. This was an action of trespass quare clausum fregit, in which the defendant pleaded not guilty. The parties were owners of adjoining tracts of land, and disputed about their partition line. The plaintiff cut a quantity of rails upon the land in dispute, and hauled them to another part of his land, which was not in dispute.

Daniel Williams, for the use of John Reynolds, against John Adams and Dyer Woodworth.

Thomas Evans against Samuel D. Boggs. This was an action against a constable to recover the amount of an execution which had been placed in his hands, and to which he had made no legal return. The defendant relied upon two grounds of defence. 1. That the judgment was paid to the plaintiff before the execution issued. 2. That after the return day of the execution, the plaintiff issued another, which was a waiver by him of his right to resort to the defendant.

W. David against S. Moore, W. Colder, and J. Ottinger. This was an action to recover the value of a trunk and its contents cut from the stage of the defendants, in which the plaintiff was a passenger from Chambersburg to Pittsburgh. The only question in the cause was, whether the plaintiff was a competent witness to prove that he had the sum of $75 in his trunk when it was taken.

<p>ERROR to the Common Pleas of Allegheny county.</p> <p>John M’Chesney against James A. Speer. This was an appeal from the judgment of a justice. The claim of the plaintiff was for mason-work done for the defendant. The parties disputed about the amount of wock done. It appeared on thd- trial, that before suit was brought, the parties "chose John W.. Johnston to measure the work, and agreed “ to abide by his measurement.” The result of his measurement was proved; and the defendant asked the court to instruct the jury that it was conclusive. In answer to which the court said that it was not conclusive, but that the jury must find a verdict upon all the evidence in the cause.</p> <p>argued that the submission of a question of fact affecting the rights of parties and an award upon it, were just as conclusive as an award settling a disputed account. • - .</p>

John Thompson against James Frazier and Isaiah Nibloek. This was an action of debt upon a note for $400, to which the defendants pleaded payment with leave, &c. The defendants proved that the consideration of the note was goods purchased by the defendants from the plaintiff at different times; and among other things a quantity of Brandreth’s pills, to the amount of #150, and the agency to sell them.

<p>ERROR to the District Court of Allegheny county.</p> <p>Anderson & Canan against James Blakely. This action was brought to recover from the defendant the amount of a book account for goods sold and delivered by the plaintiffs to Thomas Pratt on the 12th February 1839, and at several other dates between that time and the 30th May 1839, amounting to $923.99, on account of which the said Thomas Pratt had paid on the 12th February 1839 $>100, on the 13th April $100, and on the 11th July $90. The first bill of goods purchased was on the 12th February 1839, and amounted to $230.07. The action against the present defendant was founded upon the following letter of credit:</p> <p>“ Messrs Anderson & Canan:</p> <p>“ Gentlemen, — Mr Pratt having informed me that he is making some purchases from you, and not being acquainted with you, that you wish some reference. Though not personally acquainted, yet I would say from my knowledge of Mr Pratt that you might credit him with perfect safety, and that any thing he might purchase from you, I would see paid for. Respectfully yours,</p> <p>“ James Blakely.”</p> <p>This letter was without date, but was delivered to the plaintiffs 4th February 1839.</p> <p>It was proved by the plaintiffs that in June 1839 Blakely, the defendant, called on them and said “ that although Pratt was an honest and industrious man, he would not be accountable for goods got by him after that time.”</p> <p>Shaler, President, was of opinion that the true construction of the letter credited limited the defendant’s liability to the amount of the bill of goods which was then the subject of negotiation between the parties; and that this liability was not enlarged or altered by the parol proof of the defendant’s notice to the plaintiffs, after the whole amount of the account now claimed was purchased, “ that he would not be liable for goods purchased after that timeand directed a verdict for the defendant.</p> <p>argued that the true construction of the paper was a continuing letter of credit, and bound the defendant up to the time it was countermanded; and cited 2 Camp. 436; 12 East 227; 2 Camp. 39, 414; 3 Camp. 220; 2 Hall’s Rep. 197; 3 Yerger 330; 7 Peters 134; 5 Binn. 195. And what greatly strengthens this construction is, that it is one which the defendant himself put upon it, as is manifest by the notice he gave “ that he would not be liable for goods purchased thereafter.”</p> <p>The intention of the parties must govern their rights and liabilities; and that intention can only be gathered from the letter, which is the ground of the action. There is no rule which requires a strict interpretation of that letter against the defendant; on the contrary, inasmuch as he derived no consideration himself, his liability should not be extended beyond its reasonable construction. “ Mr Pratt having informed me that he is making some purchases from you,” is the ground-work of the defendant’s engagement; and whatever obligation he put upon himself in the subsequent part of the letter has reference to present purchases. The cases in 8 Johns. 119, and 16 Serg. fy Rawle 212, seem to be conclusive, in sustaining the opinion of the court below.</p>

This was an action of ejectment for 500 acres of land, by the heirs of John Hockenbury against Conrad Snyder and James Taylor. The plaintiffs were admitted to be the heirs of John Hockenbury deceased, and as such claimed title to the land in dispute.

<p>ERROR to the District Court of Allegheny county.</p> <p>John Willock, assignee of Merrick Munson, against Daniel E. Mitchell and George Hamilton.</p> <p>This was an action of trespass vi et armis, brought by the defendant in error against the plaintiff in error, Mitchell, who was constable, and Hamilton, who was plaintiff in the execution by virtue of which the property in controversy was levied and sold.</p> <p>On the 17th of June 1839, Merrick Munson executed to the plaintiff a voluntary assignment of all his property, in trust for his creditors, upon the ordinary terms and in the usual form, which was recorded the same day.</p> <p>On the 21st of the same month, an inventory and appraisement of the personal property were made; and on the 9th July 1839, the assignee filed his bond required by the Act of Assembly.</p> <p>On the 12th of June 1839, George Hamilton obtained judgment against the said Merrick Munson, before a justice, for a debt of $68, and on the 3d day of July 1839, an execution was issued, directed to Daniel Mitchell, constable, on which a levy was made the same day, and the goods removed and subsequently sold, and the proceeds applied to the payment of the judgment.</p> <p>Dallas, President, instructed the jury that leaving the property in the possession of the assignor, under the circumstances of this case, was not fraudulent, and that there was such a possession in the assignee as entitled him to recover in this action.</p> <p>argued that the assignee was bound to remove the property, and not suffer it to remain, where it had always been, in the possession of the assignor; thus giving him a credit by which he might deceive the public; and cited 17 Serg. df Rawle 254; 10 Serg. df Rawle 202, 428; 14 Serg. df Rawle 214; 5 Serg. df Rawle 275; 6 Watts 459.</p> <p>The Act of 14th June 1836, which makes provision for the conduct of an assignee under a voluntary assignment for the benefit of creditors, allows thirty days in which he is to qualify himself to take possession of the property by giving bond, making an inventory and appraisement, and filing the same: by which it is manifest that time was allowed in which, although the legal possession is in the assignee, he need not remove the property or take actual possession of it. 5 Watts 373; 3 Rawle 343; 2 Binn.174.</p>

This was an action of ejectment by Joseph Wilson against William Altemus, for 193 acres of land. The plaintiff gave in evidence that there was an actual settlement made upon the land by Thomas Pettigrew in 1805; a transfer of it by Pettigrew to John Wakefield, in 1809, to whom a warrant was granted in 1816; a survey made in 1817. Deed from Wakefield to the plaintiff in 1829, to whom a patent was granted 20th of April 1838.

A. S. T. Copeland against John Glenn. This was an action of debt upon a recognizance of bail. There was no declaration filed. The docket entry was as follows: “ 2d February 1841, judgment for plaintiff, sum due liquidated at seventy-four dollars and sixty cents.” This judgment cannot be supported, inasmuch as there was no declaration filed, no condition of the recognizance set out, no breach assigned; and it does not appear that there was any trial by the court.

' ERROR to the Common Pleas of Beaver county. James Cubbison against James M’Creary. This was an action on the case founded upon a parol agreement between the parties respecting the partition of a tract of land, in which the plaintiff claimed to recover damages from the defendant for not conveying the land according to his agreement.

This was an action of trespass de bonis asportatis, brought by Solomon M’Cumber, the defendant in error, against James Duncan, the plaintiff in error. The goods in question were part of the personal estate of Moses Fellows at the time of his decease; and as such were thereupon taken into possession by Rebecca Fellows, his executrix and widow.

Samuel Burnside against William Weightman. This was an action of replevin for 400 dozen of wheat. On the 3d of October 1837, William Maits was the owner of the land in fee on which the wheat (in a twelve-acre field) was the only growing crop. On that day, by written agreement, he leased the land to the defendant, William Weightman, for the term of five years, commencing on the 1st of April 1838, reserving by express stipulation, the said twelve-acre field of grain.

John F. Braddee against Bazil Brownfield. The facts of this case, and the principles of law raised by them, are fully stated by the court below, in their charge to the jury, which was the subject of exception.

This was an action of ejectment brought in the Common Pleas of Washington county to August Term 1840, to recover 100 acres of land, situate in Carroll township, Washington county. The land had been originally entered in the name of William Hamilton, the father of the plaintiffs.

William Wickersham, trustee of Mary Chess, against Cyrus Huston. This was an action of trespass, in which the plaintiff charged the defendant in his declaration with entering into his land on the 1st of June 1837, and remaining in possession until the 13th of October 1839, and during that time taking the rents and profits.

This was an ejectment brought by the plaintiffs in error, William Musser and Joseph Howell, against the defendants in error, Joseph S. Hyde, Erasmus Morey, and Jacob Ridgway, to recover 162 acres and 37 perches of land.

<p>A certiorari to the Court of Quarter Sessions to remove road cases lies without any special allowance or cause shown, on which the court may affirm the proceedings or remit them for further proceedings. And the same principle applies to a proceeding in that court for laying out streets and squares in a proposed city district.</p> <p>The mere laying out streets, &c., for a city, under the Act of 16th of'June 1836, and its supplement, or under the general road law, is not of itself a taking of the property of individuals by the right of eminent domain recognised in the constitution; and it is only when they are actually opened and applied to public use, that the owners are entitled to receive compensation.</p> <p>Therefore, the legislature had authority to pass the Act of 16th of June 1836, to lay off a district of country adjoining the city of Pittsburgh, and to direct a survey and location of the streets in anticipation of the future increase of its population.</p> <p>They could, also, direct such streets, &c., to be opened on the petition °f thirty lot-holders.</p>

<p>THIS was an action of assumpsit originally brought by Samuel Archer, Isaac C. Jones, Richard Oakford, and Samuel T. Jones against Nathan Dunn, in which the plaintiffs declared for a large sum of money had and received by the defendant to their use. After the institution of the suit Samuel Archer died, and the trial was had in the names of the survivors. The defendant pleaded non assumpsit and payment, and claimed a set-off of a sum of money due to him from Samuel Archer, and also for damages on account of the plaintiffs not complying with their contract to send two ships a year to Canton via Liverpool. The cause was tried at Nisi Prius before Mr Justice Rogers, and a verdict was rendered, by consent, for the plaintiff, subject to the opinion of the court, the amount due, if any, to be fixed by the court or the counsel. The defendant moved for a new trial.</p> <p>The suit was brought to recover back moneys received by the defendant as the plaintiffs’ agent or factor at Canton, in China. The defendant claimed to retain the moneys as his own property, in conformity with his accounts rendered to the plaintiffs. The plaintiffs objected to certain charges in these accounts as erroneous, alleging that the defendant was not entitled to withhold these sums of money, but was bound to pay them over. The claims consisted of three kinds: 1. An alleged overcharge by the defendant of the amount of commission he was entitled to for merchandise which left England for Canton, viz., the overcharge of 5 per cent, on gross sales, instead of 2J on gross sales and 2J on nett proceeds. 2. The retention of a large sum of money as commissions on the ship Isabella on her 4th voyage to Canton; which the plaintiffs alleged was to be placed in the second period, viz., from the 13th of July 1828, and terminating on the 13th of July 1830; and the defendant contended that it came under the arrangement from 1826 to 1828. 3. A claim of interest at 12 per cent, on the sums retained by defendant.</p> <p>The evidence was voluminous, consisting of the agreements of the parties, their correspondence during many years, and the accounts between them, with arguments and discussions on the subjects in controversy prior to the institution of this suit.</p> <p>It appeared that the plaintiffs were merchants residing in Philadelphia, and projected a course of trade on a large scale from Philadelphia to Canton, for which purpose they employed the defendant to go to Canton and reside there. The contracts between the parties underwent several changes from time to time. The first agreement was entered into on the 12th of July 1821, (in connection with Whitton Evans, who withdrew in 1826), and was for a residence there by the defendant for not less than three nor more than five years; and under it he remained five years: and the defendant was to be compensated partly by a commission and partly by one-quarter of the profits. The second agreement was for a continuance of two years further from the 13th of July 1826, and the compensation to be by a charge of commissions. A third agreement was made for his residing there two years from the 13th of July 1828, to end on the same day in 1830; the commissions the same, but $25,000 per annum was guaranteed. The defendant went to Canton, and continued there the whole time agreed on, and returned to this country on the 22d of November 1831. The dispute turned on the second and third agreements, the first being used only for illustration.</p> <p>During the time agreed on, from 1826 to 1828, the plaintiffs despatched the following ships from Philadelphia to Canton via England : — The Isabella (third voyage) arrived in Canton on the 5th of February 1827. The Woodrop-Sims, on the 7th of November 1827; the Globe, on the 28th of February 1828; and the Isabella (fourth voyage) on the 13th of October 1828. This last vessel sailed from Liverpool on the 15th of May 1828. If she fell within the contract from ’28 to ’30, the commissions on her and the Tobacco Plant exceeded $50,000, the sum stipulated by the ■agreement. If she belonged to the second period, the commissions of this year were deficient by nineteen or twenty thousand dollars.</p> <p>Most of the foregoing vessels, as well as several others, went from Philadelphia to Canton via Liverpool. There were some others sent direct from Philadelphia to Canton, about which there was no dispute, namely, the Newport and the Tobacco Plant. There arrived in China to defendant, on consignments by plaintiffs, during the four years from the 13th of July 1826, to the 13th of July 1830, as follows, viz.:</p> <p>Ship Tobacco Plant, (fourth voyage), 17th of October 1826, from Philadelphia.</p> <p>Ship Isabella, (third voyage), 5th of February 1827, from Liverpool.</p> <p>Ship Newport, 12th of August 1827, from Philadelphia.</p> <p>Ship Woodrop-Sims, 5th of October 1827, from Liverpool.</p> <p>Ship Globe, 28th of February 1828, from do.</p> <p>■ Ship Isabella, (fourth voyage), I3th of September 1828, from Liverpool.</p> <p>■ Ship Tobacco Plant, (fifth voyage), 13th of August 1829, from Liverpool.</p> <p>Ship Isabella, (fifth voyage), 23d of December 1829, from Liverpool.</p> <p>The defendant made out accounts current, from time to time, separately, with S. Archer, and with Jones, Oakford & Co., in which expenses, charges, &c., on all goods purchased for homeward shipment, as well as on outward cargoes, were charged equally, one-half to S. Archer and the other half to I. C. Jones, Oakford & Co. The account-sales were all headed sales by N. D. of cargo received per ship -, for account of Samuel Archer and I. C. Jones, Oakford && Co., of Philadelphia.</p> <p>The following agreements and correspondence were read in evidence on the trial:</p> <p>1821, July 12. Agreement between Samuel Archer, I. C. Jones, Oakford & Co., and Whitton Evans of the one part, and Nathan Dunn of the other part.</p> <p>The first named parties having determined to enter into the China trade on joint account, and to make the same their principal business, mutually bind themselves to continue the same for a term not short of three, nor exceeding five years, unless it should be found that the business cannot be continued (during either of those periods) without a loss, in which case, a majority in the United States may annul the same at an earlier time.</p> <p>The first named parties engage to furnish the whole capital to carry on said trade, and to send not less than two ships in each year to Canton, via England.</p> <p>Nathan Dunn agrees to proceed to England to procure a cargo of dry goods, to be shipped on board the ship Columbian, with what specie the first named parties may ship, and proceed to Canton.</p> <p>With a view of embracing all the advantages of the China trade, N. Dunn agrees to reside in Canton during the period this arrangement may continue, and to transact all the business of said concern.</p> <p>The first named parties agree to allow Nathan Dunn three per cent, commission on all the specie shipped, and one-fourth of the profits arising on the sale of dry goods to be received in Canton on closing the sales of each shipment, and three per cent, on sales, and three per cent, investment of proceeds of all other cargo (than 3ry goods), by the concern: but no commission for investing the proceeds of dry goods.</p> <p>. The first named parties mutually agree that should there be a loss on any cargo of dry goods sent by the concern to Canton, that Nathan Dunn is to bear no part thereof.</p> <p>The first named parties mutually agree, that in placing funds in England, each one is at liberty at their own risk, to make remittances or shipments in any way they may deem most to their interest, for their respective proportion.</p> <p>The first named parties are each to receive one-fourth of the profits arising out of the sale of dry goods, and each one-third of the profits on the sale of other cargo.</p> <p>All the funds invested at Canton on account of the three first named parties to be in separate invoices, consigned to them separately, each containing as near the same kind of goods as possible, and occupying nearly the same tonnage.</p> <p>Nathan Dunn is to ship his proportion of the profits arising out of the sale of dry goods, in nearly the same description of goods, and occupying nearly the same proportion,of room, as the first named parties, in the first vessel belonging to, or chartered by the concern after the sales of the cargo are closed in Canton; the freight on his tonnage to be at the same price as the concern’s.</p> <p>It is agreed that in estimating the cost of dry goods in Canton, that the exchange on England shall be taken at par, and all that the sales produce above this estimation shall be divided as above specified,- subject, however, in the United States, to the charge of the current rate of exchange, or price of bills at the time of remittance to England for the payment of the same, with commission, insurance, and interest, until in funds for the same in Canton.</p> <p>If the above charges should exceed the par of exchange, N. Dunn’s agent is to pay- his proportion to the first named parties in Philadelphia. Should they be under the par of exchange, the first named parties to pay N. Dunn’s agent his proportion.</p> <p>The first named parties agree to allow N. Dunn, in lieu of rent of factory, provisions, servants, cumshaws to linguist and house compradore, if two ships arrive within each year, $1667 on each ship; if three or more within the year, $550 to be charged on such additional ship, to be received in Canton, and three per cent, to be charged on the ship and factory disbursements: Nathan Dunn to be allowed 15 tons privilege each, on two ships annually. If but one ship arrives at Canton within the year, N. Dunn is to receive $3334 on said ship for factory disbursements, or expenses in Canton; and if none should arrive within the year, the first named' parties agree to pay N. Dunn $3334 in lieu thereof.</p> <p>Any storage, or other expenses occasioned by purchasing goods in anticipation of arrivals, to be charged to the concern.</p> <p>The first named parties agree, that in case they should discontinue the concern at an earlier period than is now contémplated, they will allow N. Dunn at the rate of $3334 per annum, during the time he may be employed at Canton in closing the concern after the dissolution, not to exceed one year.</p> <p>N. Dunn agrees that his agent shall pay to the first named parties, the nett proceeds arising out of his proportion of profits on dry goods sold in Canton, on closing the sales of each shipment in Philadelphia.</p> <p>The first named parties engage to pay N. Dunn an interest of six per cent, per annum on all sums received from his agent, which is to be employed on their account and risk in the contemplated business during the continuation of said concern; at the expiration of which, the first named parties individually bind themselves to pay the principal thus received, with interest, unto Nathan Dunn, in cash or their obligation at sixty days, with interest.</p> <p>It is agreed that Nathan Dunn is at liberty to employ any funds that may arise from commissions in any way he may deem most to his interest.</p> <p>It is agreed that any specie or stores for his own use, that N. Dunn may have to ship to Canton, shall go free of freight.</p> <p>Nathan Dunn engages to use his best endeavours in the sale of the outward cargoes, and the purchase of the return cargoes, for ■the interest of the concern.</p> <p>Nathan Dunn may deduct the excess of his actual expenses (over and above what is allowed him) from his share of profits on the dry goods in Canton, and what may be required for his stores in Philadelphia, to be deducted from the proceeds arising from the sales of said dry goods.</p> <p>N. Dunn agrees to give some one of the concern the preference in consigning the merchandize arising out of the profits of the dry goods in Canton, provided they will transact the business on as satisfactory terms as any other person.</p> <p>It is understood that N. Dunn is not to solicit or receive consignments from any other concern whatever.</p> <p>It being also expressly understood that this is to be the business of the concern, each party bind themselves, in order to carry the above agreement availably into effect, not to engage in any other business that will interfere with this arrangement, and particularly not to encourage or engage in other shipments beyond the Cape of Good'Hope. (Signed respectively.)</p> <p>Philadelphia, 7th mo. 12th, 1821.</p> <p>P. S. It is understood by the parties to the within agreement, that N. Dunn’s privilege for stores, specie, or goods, may be 35 tons each in two ships outward, annually, and is not to exceed this specification. (Signed respectively.)</p> <p>“ Canton, March 11th, 1824.</p> <p>“S. Archer, I. C. Jones, Oakford & Co., and Whitton Evans.}</p> <p>“ Respected friends, — If the East India Co. do not increase their importations, and the quantity of dry goods sent to this country by Americans should be small, — or say that it does not exceed the quantity heretofore sent, — I am of the opinion that there would not be much risk of a loss in forwarding two ships with cargoes to this country annually, consisting each, say of from $250,000 to $300,000, provided they arrive in the proper season. As respects your proceedings on the receipt of this, if you have not forwarded more than one cargo since the Columbian, Faulks, and say this comes to hand about the 30th July, 140 days, and that Samuel could arrive in England by the 1st September, that a cargo could be despatched by the 15th December, allowing him 3-J months, and allowing a ship 130 days’ passage, she would arrive here say the 1st of May. I suggest for your consideration, whether it might not be better, under present circumstances, to send a second ship, although too late to sell the cargo to best advantage, in preference to laying over for the next season. If you should decide in the affirmative, it might be best, on account of the lateness in the season, to let the amount be small, say Sf150,000 to $200,000.</p> <p>From the time required to effect sales in this country, I should not wish a cargo to exceed $300,000, and not more than two in a season. In Nos. 19 and 45,1 have informed you that it is very important that the cargoes arrive here at the time specified, — to which I now wish again to call your attention, and to request that in future they may be forwarded so as to arrive here one month earlier than the time specified in No. 19, — say the first, from the first of the 11th to the last of the 12th month; and the second, from the first of the 2d month to the last of the 3d month.</p> <p>“ Truly,</p> <p>“ Nathan Dunn.”</p> <p>“Canton, December 7th 1824.</p> <p>“ Samuel Archer.</p> <p>“ Dear friend, — There would, in my opinion, be considerable risk in consigning goods to much amount to any of the Hong merchants of this place. They should not only be under the direction of a person acquainted with the business of this country generally, but with the quality and value of dry goods in particular ; and even then, to pursue it to any extent with a prospect of success, it will require the strictest personal superintendence.</p> <p>I have not made any discoveries in any new branch that I have sufficient confidence in to recommend- to thy notice. The most profitable trade to this country is, I presume, the one in which thou art engaged.</p> <p>The competition in the general commerce between this and the United States, is now so great that it cannot be continued in the usual way with much prospect of success. The most lucrative mode that has heretofore been pursued, and which might yet, if judiciously managed, yield a moderate profit, is similar to what I took the liberty of pointing out to you under date of the 11th mo. 17th, 1823 — No. 60.</p> <p>In adverting to the query contained in thy favour of the 5th mo. 29th, and the period when the present agreement with the concern terminates, I have thought that it might now be seasonable, and that thee might expect that I should inform thee whether or not there was any advantageous business that I could recommend to thy notice for our mutual benefit, that might be taken up at the expiration of that period. I am aware that propositions should be made with caution by junior persons in subordinate situations, but as I am addressing one who I hold in higher estimation than those of my friends in the ordinary course of business, one who, though he might reject my opinions, will not treat them with ridicule; these, when taken in connexion with the time required for replies to our communications, may be some apology for the proposition that I am about to make. But previous to proposing it, I cannot refrain from stating, that I have been looking forward to the day of returning to my dear native country with much solicitude, and if a moderate compensation for my personal wants were all that was required, I might look forward to the end of the present agreement with a hope of its being realized ; but as there may be others that may suppose they are entitled to illy assistance, I cannot determine on that period for my return, without an apprehension that it may at least be premature. For all the privations that I am sustaining, a palliation is easily found in the magnitude of my former misfortunes.</p> <p>If, then, thee should be of the opinion that the present business might be continued for a further term than the present agreement to advantage, either by the same concern, or on thy own account, I would consent, if agreeable to you, to remain for a further term of two years, to commence, say on the 7th mo. 13th 1826, and end on the same day in 1828, on the following conditions:</p> <p>That you should send two ships to this country by way of England, with about $300,000 cost in dry goods, and from 50 to $80,000 in specie, in each ship annually, consigned to my address; that if more than two ships were annually sent by the way of England, or specie, or other property, is sent to this country by any of the concern from any other quarter, or in ships direct from the United States, that all such property should be consigned to myself.</p> <p>That I should give my exclusive services to the concern, and receive as a compensation for the same, 3 per cent, commissions on the gross amount sales, and 3 per cent, for investing the proceeds, and 3 per cent, on the amount of specie shipped. The charges on the ships, &c., and my privileges in them to be the same as heretofore; and that I should be at liberty to manage my funds in any way that I might deem most to my interest, excepting that I should not interfere with your interest in importing any dry goods from England.</p> <p>I should here observe, that, if at any time the information you should receive from me of dry goods should be so unfavourable as to make it necessary for you to suspend your operations for a season to prevent a loss, that in that event, I should not wish a fulfilment of your stipulation in sending the two ships in each season. If no ship should arrive within the year, that I should be allowed 3,334 dollars in lieu of factory expenses.</p> <p>As I am not to receive consignments from any other concern, it will be required that you engage that this shall only be yours, and that you will not enter into any other that will in the least interfere with this arrangement, and particularly not to engage in, or encourage any shipments to the eastward of the Cape of Good Hope.</p> <p>Having now made a tender of my services, I have to request that thou wilt, as early as thee can after the receipt of this, inform me of thy determination.</p> <p>If you should determine on a further continuance of the business, it would be desirable, if practicable, that the same agent be continued in England for purchasing the goods, and that the same attention be paid as heretofore to any alterations that the state of this market may hereafter require in purchasing the different articles: and that the time and mode of disposing of the merchandise in this country, be left to my direction to manage in the best way I could for your interest.</p> <p>Accept my best wishes,</p> <p>1st Phoenix. 2d Caledonia.} Nathan Dunn.”</p> <p>“Philadelphia, April 15th, 1825.</p> <p>“ Nathan Dunn.</p> <p>Esteemed friend, — The Tobacco Plant left this the 7th inst., and hope/ this will find her safe at Canton.</p> <p>We now come to answer thy proposition with respect to remaining in Canton for two years beyond. the. term formerly agreed upon. The concern are agreed to continue the business for a further term of two years, from the 7th mo. 13th, 1826, on the same terms as formerly. If this is not agreeable to N. D., will allow 5 per cent, commission on sales of merchandise, and for investing nett proceeds of same, and 3 per cent, for specie, and will engage to send at least two ships in each year with merchandise and specie (if advice received from thee will warrant it without a prospect of loss), to an amount not less than §300,000, each ship; $260,000 of which shall be in merchandise; and, as said above, if the advices received from thee from time to time will warrant a further amount being sent, it shall be done; and any other business done by the concern at Canton during said period, will be given to thee at the customary com'mission. We would prefer thy accepting the first of the two propositions now offered, but if the second be preferred, shall be satisfied. We do not know how thee may consider the last offer on our part, but we think it liberal, as all the risk of market, bad debts, &c., <fcc., will rest with us. We shall be glad to know, as early as is convenient, whether either of the terms proposed meets thy approval; in the mean time shall continue our operations as though no change was to take place in thy remaining in Canton.</p> <p>With sentiments of much regard, we are thy friends,</p> <p>(Signed) “ I. C. Jones, Oakeord & Co.</p> <p>“ Samuel Archer,</p> <p>-“Whitton Evans.”</p> <p>Extract of letter to Nathan Duñn, from Samuel Archer, dated Philadelphia, Aprü 18th, 1825.</p> <p>“ The concern have written to thee by this conveyance respecting thy remaining in Canton two years beyond the time formerly agreed upon. Thee will of course decide as may best suit thy own views upon this subject; but if I was entirely disinterested I should say, judging from past operations, that either offer was advantageous, but the latter of course most certain, say four voyages during the two years, $250,000 each, in dry goods, is $1,000,000. Sells for $1,400,000, at 5 per cent., is $70,000; and say $160,000 in specie, at 3 per cent., is $4,800; total commissions $74,800; on the returns 25 per cent, would make a pretty good business for two years, with the chance of still larger funds, should the prospects warrant, and possibly one or two ships direct to thy consignment.”</p> <p>Extract of Letter No. 108, dated Canton, July 18th, 1825, from Nathan Dunn to S. Archer, I. C. Jones, Oakford df Co., and Whitton Evans.</p> <p>“ Had your ship arrived by about the 1st of the 4th month, and her size moderate, it was my intention to have endeavoured to effect sales sufficient for her sailing with light funds in all the 7th or 8th month, but the unseasonable amount and large tonnage of the New Jersey, has laid such an effort at rest.</p> <p>My situation at present is an anxious one. The contracts for silks amount to $140,000, and for teas bought to $40,000; the money for most will soon be required. To sell the ship’s inward cargo, in the present state of the market, will require a sacrifice of 40 a $50,000; to hypothecate will be nearly as injurious; to hold until the proper season, to wit, the 11th month, will put the persons to whom I owe the money to serious inconvenience.</p> <p>In looking to sales, the previous loss is not the most serious objection to its accomplishment. If you will allow me to digress, I shall endeavour to give my reasons; the conduct of all the few foreigners that reside in this country (particularly the Americans) is closely scrutinized by the Chinese; we all have our particular characters amongst them. They have strong prejudices, and transact business very different from the Americans or English merchants; one particular trait in their character is the facility with which they unite, when they find a man’s necessities occasionally require him to sell, to purchase the goods at a rate much below the market value. These combinations, or consues as they are termed, will account, for the difficulty (you will perceive that I allude to the cloth, and other outside merchants) of a poor hong merchant’s accomplishing favourable sales to any extent, unless it is a mere agent or broker; whenever they ascertain that a poor hong has actually made purchases, they withdraw until his necessities compel him to sell on any terms.”</p> <p>Received 12th mo. 24th, 1825.</p> <p>Extract of Letter, dated Philadelphia, September 27, 1825, from I. C. Jones, Oakford Sf Co., and Whitton Evans, to Nathan Dunn.</p> <p>“ Our last was under date of 14th inst., (to be forwarded by this conveyance), since which our markets have experienced a further depression for almost every description of goods that are offered at public sales; and Canton goods, both teas and silks, feel their full share, the market already being pretty well supplied, and parcels being constantly thrown into auction appears to have completely alarmed the buyers. Crape dresses that were in fair request at $5.50 at the time the Isabella arrived, have recently been sold at $4.75 to $5.00; black handkerchiefs $6.75 to $7.00; and other articles also at considerably lower prices. We made pretty large sales before the fall, most of which has been since the arrival of the Pacific.”</p> <p>“Canton, November 19th, 1825.</p> <p>Samuel Archer, I. C. Jones, Oakford & Co., and Whitton Evans.}</p> <p>“ Respected friends, — Had I been aware that the terms upon which I offered to remain in this country, as stated to your Samuel Archer, under date of the 12th mo. 7tb, 1824, would be considered by you unreasonable, it might not have been foreign to the subject to have informed, that in making the proposition I was nof actuated entirely by sinister motives, or they might have led me to look for a higher compensation from another quarter; but I really believed that the offer (as far as interested motives would permit me to judge at least) was, under all circumstances, reasonable. Had it been a business such as is usually pursued by the Americans m their intercourse with this country, my claims for a compensation in its execution would have been of a much less prominent nature; but as it is one which I have introduced to your notice, and one in which I have suffered some anxiety and privation in fulfilling the department allotted me in this country, the success of which I am confident would yet be found on a trial to be very materially connected with its judicious execution in this country, and one which, under the most favourable circumstances, would be most materially affected by an experienced competitor. These were some of the considerations which led me to believe that you would not consider the terms I proposed unreasonable.</p> <p>The preference I feel for those who have countenanced me with their confidence and efficient support, has been the strongest motive in influencing me to the determination of remaining for a further term of two years in this country as your agent; and I now inclose two copies of a memorandum of an agreement drawn up in conformity with the conditions stated to your Samuel Archer in the 12th mo. 7th last, excepting the commissions on the sales and investment of the dry goods, which, after the foregoing remarks, I must leave for your decision to fill at either the five per cent, for the sales and investment of dry goods, agreeable to your offer under date of the 4th mo. 15, 1825; or say two and a half per cent, on sales of dry goods, and two and a half per cent, for investing the proceeds, which amounts to the same; or on my terms of three per cent, on the gross amount sales of dry goods, and three per cent, for investing the nett proceeds.</p> <p>I should hei’e state my reasons for inserting gross amount sales on the dry goods. In several instances I have succeeded in making arrangements with some of the poorer hong merchants for the payment of the duties at' a handsome discount, as you will see by referring to the sales, the details of which I need not recapitulate ; suffice to say, that in its execution I have had considerable trouble, and have been strongly opposed by the richer part of the co-hong, aided by the Hon. the East India Company: for these and many other reasons, there is no part of the business on which I feel that I have stronger claims for a compensation.</p> <p>Although I must now accept of either commission on the sales and investment on the dry goods, I shall wait with some solicitude your determination.</p> <p>You will have the goodness to return me one of the copies by the first opportunity.</p> <p>Of my attention to the business intrusted to my care, and the manner of its execution, you have, no doubt ere this, formed a judgment; whether it has been such as to have met with your approbation I am not now about to inquire, but to say that in coming to the decision of remaining for the further term of two years, that I am not insensible to the stimulus inseparable from the approbation of those whom I wish to please; and a belief that my exertions will be well received, will continue to excite an increased zeal in the gratifying task of giving satisfaction to my employers. With much respect, I remain,</p> <p>1st per Addison. Nathan Dunn.”</p> <p>“Samuel Archer, I. C. Jones, Oakford & Co. and Whitton Evans, merchants of Philadelphia, having been engaged in the China trade for several years past, under a written agreement which expires on the 7th mo. 13th, 1826, believing it would be to .their interest to extend the business for a further period, and Nathan Dunn who has resided at Canton as their agent agreeing to remain in China for that purpose, the first named parties engage to continue the China trade on joint account for a further term of two years, commencing on the 7th mo. 13th, 1826, and ending on the same day in the year 1828, and to employ Nathan Dunn to reside at Canton as their sole agent, on the following conditions:</p> <p>The first named parties engage to send not less than two ships in each year to Canton via England, with cargoes of not less than $300,000, or say $260,000, first cost in dry goods, and $40,000 in specie, in each ship consigned to Nathan Dunn.</p> <p>The first named parties engage that if more than two ships are sent via England to Canton in each year, or that if ships, specie, or any other property is sent to Canton by the concern, or any one of the same, from any other quarter, or in ships direct from the United States, that all such property shall be consigned to Nathan Dunn.</p> <p>Nathan Dunn engages to use his best exertions in disposing of the outward cargoes received from the first named parties, and in investing the proceeds for the return cargoes for their interest.</p> <p>Nathan Dunn engages that all the funds invested at Canton for the three first named parties, shall be in three separate invoices, consigned to each respectively, corresponding in amount and kind of goods as near as possible, and occupying nearly the same tonnage.</p> <p>Nathan Dunn is not to interfere with the interest of the first named parties in soliciting or receiving consignments from any other concern, (excepting a mutual arrangement with some respectable resident at Canton to act in case of demise), or in importing dry goods from England.</p> <p>The first named parties engage to allow Nathan Dunn, as a com‘pensation for his services, the following commissions, to wit: per cent, on the amount sales of dry goods, and</p> <p>per cent, for investing the proceeds, and three per cent, on all specie shipped, and three per cent, on sales, and three per cent, for the investment of all other cargo (than dry goods), and three per cent, on the ships and factory disbursements to be received in Canton.</p> <p>The first named parties agree to allow Nathan Dunn, in lieu of factory rent, provisions, servants, cumshaws to linguist, and house compradore, if two ships arrive within each year, sixteen hundred and sixty-seven dollars on each ship; if three or more within the year, five hundred and fifty dollars to be charged on each such additional ships; if but one ship arrives at Canton within the year, thirty-three hundred and thirty-four dollars is to be charged in lieu of factory rent, &c., as above specified, on said ship; and if none should arrive within the year, then the first named parties agree to pay to Nathan Dunn thirty-three hundred and thirty-four dollars in Canton in lieu thereof.</p> <p>The first named parties agree to allow Nathan Dunn fifteen tons of forty cubic feet privilege each in two ships, in each year from Canton to the United States; and for stores, specie, and merchandise, (other than dry goods), not exceeding thirty-five tons each in two ships annually from the United States via England to Canton, free of freight.</p> <p>Any storage or other expenses on the outward cargoes at Canton, or on goods purchased in anticipation of arrivals, to be charged to the first named parties.</p> <p>Nathan Dunn is at liberty to transact business on his own account in any way that he may deem most to his interest.</p> <p>It is understood that if the information received from Nathan Dunn, by the first named parties, of the state of the Canton market for dry goods should be so unfavourable as to make it necessary for them to suspend their operations for a season to prevent a loss, that in such an event their engagement to send two ships in each year via England to Canton, is not to be considered binding-</p> <p>It being expressly understood that this is to be the business of the concern, the first named parties engage that they will not enter into any other business that will in the least interfere with this arrangement;' and particularly not engage in, or encourage any other shipments to the eastward of the Cape of Good Hope.</p> <p>Signed at Canton, 11th mo. 19th, 1825, by</p> <p>Nathan Dunn.</p> <p>P. S. On signing the above agreement by N. Dunn, the first item of commissions on the sales of dry goods and investing the proceeds is left blank. N. Dunn asked three per cent, on the gross amount sales, and three per cent, for investing the proceeds as per letter to Samuel Archer of the 12th mo. 7th, 1824, and the first named parties offered five per cent, on the sales and investing the nett proceeds, as per their favour of the 4th mo. 15th, 1825. It is now left with them to fill up, at not under the five per cent., or above three per cent, on the gross amount sales, and three per cent, for investing the proceeds, as they may think proper.</p> <p>Nathan Dunn.”</p> <p>“ Canton, December 1th, 1825.</p> <p>“ Samuel Archer, I. C. Jones, Oakford & Co. and W. Evans.}</p> <p>Respected friends, — Under this date I have written to Samuel T. Jones, inclosing an estimate of the quantity of the different articles of dry goods that I wish hereafter forwarded in each ship, amounting to about §310,000, estimating exchange between the United States and England at par, and taking them at the same cost as those by the ship New Jersey. Of the quantity and amount contained in that estimate, I am now of the opinion it will be pretty safe to forward two cargoes in each season to this country, unless the shipments by the Americans, or the E. I. C., is more than usual, of which Samuel can ascertain in England, or an unusual depression in this market, of which I will give the earliest information.</p> <p>Although I have frequently urged the importance of your ships arriving at this market at a favourable season, the losses that you have sustained in consequence of several arrivals at an unfavourable season, and its importance, is, I trust, a sufficient apology for my again calling your attention to this subject. Under date of the 3d mo. 11th,. 1824,1 requested that the first ship in the season should arrive here from the 1st of the 11th mo. to the last of the 12th mo.; and the second ship, from the 1st of the 2d mo. to the last of the 3d mo. As a fair average passage for ships sailing from England at those seasons is five months, I have now to request that the first ship in each season should sail from Liverpool not later than the 10th of the 6th mo., and the second ship not later than the 10th of the 9th mo.</p> <p>If you cannot make up your minds in time for Samuel to despatch the ships by those periods, it would be much to your interest to defer shipment until the regular season of the next year, in preference to their laying over in this port.</p> <p>Very sincerely, Nathan Dunn.”</p> <p>1st per America. 2d per New Jersey.}</p> <p>Extract of letter to Nathan Dunn, from I. C. Jones, Oakford <£• Co., and Samuel Archer, dated Philadelphia, February 1st, 1826.</p> <p>“It is our wish that all the business be closed at Canton, including the Phoenix cargo, which is now considered the last vessel to Canton under our original agreement; and should any further business be done to Canton during thy stay there, it will of course be on a new account, and the sooner the old one can be closed the better, so that we can ascertain what the result is, and have but little doubt it will prove satisfactory to all concerned. Please, when rendering a final account, to furnish one for each shipment; should any goods remain unsold on receipt of this, perhaps it may be as well to close them, even at some little sacrifice, in order to close the concern sooner.”</p> <p>Extract of letter dated Philadelphia, April 7, 1826, from I. C. Jones, Oahford fy Co., Samuel Archer, and Whitton Evans, to Samuel T. Jones.</p> <p>“ We have been waiting for the arrival of the ship New Jersey to bring us advices from Nathan Dunn, that should govern as to our future movements in the Canton trade. On the 5th inst., we received by the America, arrived at New York, the letter of which the inclosed is a copy, and on the strength of his recommendation have concluded to send one ship from Liverpool to Canton the approaching season, (there would not be time for two, if we wished it.) We therefore have to request thou wilt immediately on the receipt of this, make arrangements for the purchase of a cargo of dry goods on our account, to the amount of £60,000 sterling, to be assorted as near as practicable to the list furnished by him; and as goods have fallen in price so much, we presume this sum will buy nearly as many goods as $310,000 would at the old prices; should_any of the staple articles have fallen much more in proportion than others, it may be well to increase or diminish accordingly to some extent, but not so as materially to change the assortment.”</p> <p>Extract of letter No. 133, dated Canton, April 14, 1826, from Nathan Dunn to Samuel Archer, I. C. Jones, Oahford <f Co., and W. Evans.</p> <p>“ Since the sailing of the Phcenix, I have not effected any further sales or made any purchases. I am very anxious to dispose of the heavy stock of cotton goods on hand. And although it is now the proper season for selling, there does not appear to be the least demand, and I dare not enter into further engagements, in my present situation.”</p> <p>Received 9th mo. 9, 1826.</p> <p>“ Philadelphia, April 15, 1826.</p> <p>“ Esteemed fkiend, Nathan Dunn,—</p> <p>We write this without much prospect of its early delivery, and may advise of the safe arrival of the ships Tobacco Plant and New Jersey, the former the 10th ulto. and the latter on the 13th inst., but we regret to say to a very bad market, particularly for teas, on which there will be a heavy loss. The silks per T. Plant 'will pay some profit, and nankeens are scarce and pay pretty well. In consequence of the information received from thee, particularly that contained in No. 107, added to the bad state of the market here, we did not think it safe to send a cargo of dry goods until we received further advices from thee; but upon receiving thine of 12th mo. 7, 1825, No. 117, on the 5th inst, we immediately wrote to S. T. Jones (by the packet of 8th inst.) to prepare a cargo of the amount of £60,000 sterling. This sum we presume, at the present very reduced rate of goods in England, will buy as many as $310,000 would have done a year ago. We request him to have them ready for shipment in the 8th month; and as the season is so far advanced, shall send but one this year by way of England, which is agreeably to thy instructions, but have pretty much concluded to send the T. Plant direct, about the middle of next month, with $100,000 in bills on London, drawn by the Bank United States, and $100,000 in Spanish dollars. We presume thee will have heard ere this of the total loss of the Juniatta (oUr ship that left Liverpool for Canton in the 11th mo. last) on the coast of Ireland. Should thee have prepared any cargo in advance for her, thee will keep it for the T. Plant. Thee has no doubt also heard of the failure of E. Thomson and others, also the temporary stoppage of J. & W. Lippincott & Co.</p> <p>For the concern,</p> <p>I. C. Jones, Oakeokd & Co.”</p> <p>Extract of letter to Nathan Dunn from Samuel Archer and I. C. Jones, Oakford Co., dated Philadelphia, May 20th 1826.</p> <p>“We have already adverted to W. Evans having withdrawn from the concern, and the state of things here is such as to make us hesitate for the present as to what course we should pursue relative to next year’s business, under the articles of agreement sent out by thee; but we concluded that at all events the sending of these ships (the Tobacco Plant and Isabella) would compensate for remaining this year, and by the New Jersey we shall have time to write thee fully on that subject.”</p> <p>Extract of letter, dated Philadelphia, June 16th, 1826, from Samuel Archer and I. C. Jones, Oakford <§• Co., to Nathan Dunn.</p> <p>“ Since ours of 5th mo. 20th, by the Tobacco Plant and Caledonia, we have received thy favours, Nos. 126 and 127, per Beaver, and note the list of goods bought and contracted for, for the Phoenix. The dry goods, we think, will about pay cost and charges, but on the teas, as usual, this year there will be a heavy loss. The prices continue, as thee will see by the price current, without much variation, although there is not quite so many forcing at auction as a few months back; and if Thomson’s cargoes were out of the market, there would be some chance for improvement, but they will be likely to keep down prices all the season.</p> <p>T. H. Smith has got off two ships, and says he means to send three more, (it is said he has borrowed largely on respondentia at 14 per cent.) Hone has had the control of most of his cargoes that arrived this season, and has mostly forced them off at very low prices.”</p> <p>Extract of letter, dated Philadelphia, July VUh 1826, from I. C. Jones, Oakford <$• Co., and Samuel Archer, to Nathan Dunn.</p> <p>“ There is very little change in our market here since we last wrote, indeed it has been a remarkably dull season for business; every description of merchandise has depreciated very much, Canton goods having come in for their full share of the fall, particularly teas.</p> <p>Thee will see noted in the price current sent, all the sales of any consequence. The failures that have taken place have in a very great degree destroyed confidence, so that not only our monied men, but, to a very considerable extent, our banks and insurance offices, are lending their money on public stocks in preference to discounting notes and loaning on respondentia, although in the former case they get but 4^- to 5 per cent. The consequence is, that we have been obliged to hold a large part of our importations, and whether they will do much better in the fall remains to be seen.”</p> <p>“ Philadelphia, July 18th 1826.</p> <p>“ Esteemed friend, Nathan Dunn,</p> <p>We have already written thee by this conveyance to which we refer. In our letter of 5th mo. 20th, we advert to the difficulty we felt in coming to a decision as to any further operations to Canton after this year. Since that time we have reflected seriously upon the subject, and have pretty much come to the conclusion that it will be best to close our present operations with the voyage about commencing in the Isabella. And that, as soon as that cargo can be satisfactorily disposed of, together with any goods that may remain of former parcels, we will leave thee at liberty to settle up the concern and pay us a visit, when, if anything satisfactory should open for our mutual advantage, we may embrace it and commence anew. Whether thee will be able to come home in the Isabella, thee will be best able to judge) we think it doubtful. We would also recommend thy keeping this determination from the knowledge of the Chinese, as they might take advantage of it, and hold back from buying in hopes of thy being forced to sell low to close sales. In coming to this determination, there are several things that have weighed with us: and first, the rate of exchange, which has constantly been so heavy against us, with interest and insurance on that additional sum, has all along made heavy inroads on our profits; the length of time that it has been found necessary to keep on hand a large portion of the goods in Canton to enable thee to get fair prices making a long interest account, and the dull and frequently losing state of the market on this side for returns, added to the risk of bad debts, making it necessary to have such a large amount of funds employed, that whenever there is a scarcity in the money market we are liable to be subjected to inconvenience from the fear or caprice of bank directors; and what is the most unpleasant of all, from the time of our first commencement of this business there has been such an alarm endeavoured to be kept up (with but little intermission) of the very heavy losses that we must sustain, at first on the outward cargo, and latterly on the returns, (the latter idea having been very much strengthened by the development of the disastrous state of Thomson’s business,) that very many well-disposed persons have concluded that we must really be doing a very ruinous business, and that it must end in a very unpleasant way; we therefore have concluded that we would prefer winding up and closing our business rather earlier than we had intended, in order that the public may be convinced that we are not without the means to bring it to a satisfactory issue whenever we see fit, (as it has been urged that we are obliged to keep on in order to benefit by the credit on the duties, &c., &c.,) and remove such unpleasant surmises. By the Isabella, Phoenix, and probably some one from New York, we shall have opportunities of writing thee again, when, if any alteration-in our views takes place, we will communicate them. Thine truly,</p> <p>I. C. Jones, Oakeokd & Co., Samuel Archer.”</p> <p>Extract of letter dated Philadelphia, October 5, 1826, from I. C. Jones, Oakford Co., and Samuel Archer, to Nathan Dunn.</p> <p>“Within the last month there has arrived from Canton, the Citizen and Splendid at New York; and at this place, the B. Rush, T. Scattergood, and last of all the Phoenix, which arrived on the 27th ultimo, all well, but as heretofore to a dull market. Thee will see by the report of sales both here and in New York, as noticed in the shipping list, that the tea market is very low indeed, and there appears to be but little prospect of improvement during this fall.”</p> <p>Extract of letter from I. C. Jones, Oakford fy Co., and Samuel Archer, to N. Dunn, dated Philadelphia, October 7, 1826.</p> <p>The letter we wrote thee under date of 7th mo. 18th last, we forwarded open with others to S. T. Jones, to be sent by the Isabella, and it drew from him the obsex-vations that are contained in the copy of letter from him to us, dated 9th mo. 24th, and sent herewith. The determination we came to at that time was with reluctance; but we thought it due to thee to have some decision on the subject, and the miserable state of this market for returns has continued to be very discouraging all the season; we have, however, no doubt but the withdrawal of Thomson’s business, and the reduction of T. H. Smith’s, will be very sensibly felt both in your market and ours, and that the consequence will be much lower prices with you, and better sales here; this certainly will make it desirable for us, after wading through such a determined opposition and competition as we have met with, to participate in some degree in the benefit of their withdrawal; and as we fully agree with S. T. Jones that it will be almost if not impracticable for thee to leave Canton in the Isabella, which vessel we may reasonably conclude will leave there in the 4th or beginning of the 5th mo., and as the regular season will then be over, and it is not likely that thee will be ready, or meet with a suitable opportunity, before the return of the vessels that may leave here next spring, we have therefore changed our views, so far as to request thee to not leave Canton before the receipt of letters from us by the early spring vessels, which will give us an opportunity of seeing the result of the closing sales of the different cargoes this fall, and how the prospect looks for next year. And should we see an inducement, we shall prefer thy remaining to the end of the time stipulated, and we trust it will be no disadvantage to thee to comply with our request, for, as stated above, we do not expect thee will be able to leave before that time; but as it is a matter of great importance if we should do any thing to have thee there, we write this to make it certain. Should thee think we are vacillating in our views, our apology must be in the peculiar state of the times.</p> <p>We confirm what we wrote under date of 5th mo. relative- to bills of exchange. We send thee herewith a marked catalogue of the sale of two-thirds of the Phoenix’s cargo, by which thee will see the miserable state of this market for teas. The B. Rush’s and T. Scattergood’s cargoes remain entire, as well as a number of other heavy lots, say a large proportion of the Superior, Globe, Dorothea, Addison, and Woodrop-Sims’s cargoes.”</p> <p>“ Canton, November 24th, 1826.</p> <p>“ Samuel Archer, and I. C. Jones, Oakeord & Co.</p> <p>“ Esteemed friends, — In regard to the withdrawal of Whitton Evans, the pressure of hard times at home, and the paralyzed condition of the concern — after giving the whole matter (as I trust) its due consideration — it is natural for me, whilst I lament the difficulty on your part, to estimate my own interest, which is so materially affected by this sudden derangement of our prospects; in so doing, I have to notice a seeming disposition on your part to disown any positive engagement to me that should necessarily influence your decision respecting the Canton business, which puts me under the necessity of reminding you, that the article which you hesitate to ratify is an unimportant paper.</p> <p>Yours of 4th mo. 15th, 1825, over your three respective signatures, contained your serious proposals and conditions for my further continuance at Canton for an additional term of two years; to the terms of that letter I acceded, which was ratified by mine of 11th mo. 19th last, in which I positively accepted of the latter of the two offers which yours contained. The article which accompanied it was to afford you an opportunity (if so disposed, after hearing my remarks,) to fill the commission blank according to my views. With due regard,</p> <p>Nathan Dunn.”</p> <p>Extract of letter, dated Philadelphia, December 12th, 1826, from I. C. Jones, Oakford <f Co., and Samuel Archer, to Nathan Dunn.</p> <p>“We avail ourselves of the detention of the Augusta, to inform thee that we have now arranged for a vessel (the William Brown or the Woodrop-Sims) to sail from England about the 1st of 6th mo. next, with a cargo in dry goods of not less than about £50,000 sterling, to be increased or not, as circumstances between this and that time may seem to warrant.”</p> <p>Extract of letter, dated Philadelphia, February 12th, 1827, from I. C. Jones, Oakford Co., to Nathan Dunn.</p> <p>“ We wrote thee on the 10th inst., and sent the letter to New York, to be forwarded by T. H. Smith, per this conveyance. In that letter, we mentioned our expectations of sending a ship direct in the course of 60 days from this time; since then, upon a particular investigation of the documents sent by thee from time to time, relative to the exports to this country, we have very much determined to send one.”</p> <p>Extract of letter, dated Philadelphia, February 16th, 1827, from Samuel Archer and I. C. Jones, Oakford <)• Co., to Nathan Dunn.</p> <p>“ We wrote thee on the 10th, and under cover to J. Jenkins on the 12th inst., both sent to New York, to be forwarded by this conveyance; we also directed the New York price-current to be sent. We now fully confirm what we then wrote, and may add that we are in treaty for a vessel of pretty large tonnage, and if we agree for her, which is quite probable, she will leave here early in the 4th month, with about $200,000.”</p> <p>“ Canton, March 12th, 1827.</p> <p>“ Samuel Archer and I. C. Jones, Oakford & Co.</p> <p>Respected friends, — Your duplicate letter of the 10th mo. 7th last, per Citizen, came to hand the 3d instant, and that of the 7th mo. 18th, in its due course; their contents have been considered, but I deem any remarks on them superfluous: on my own part, suffice to say, that so far as I am capable of judging, it appears to me that it will be necessary for me to remain here until the 7th mo. 13th, 1828, to fulfil my part of the stipulation existing between us. v Believe me, with due respect,</p> <p>Nathan Dunn.”</p> <p>Extract of letter, dated Philadelphia, March 24th, 1827, from I. C. Jones, Oaltford Co., and Samuel Archer, to Nathan Dunn.'</p> <p>“Our last was under date of 2d mo. 10th a 16th, per Beaver, from New York, copies of which we hand herewith. In the last of those, we mentioned our intention of sending an early spring ship, and we accordingly soon after chartered the Newport, and now send her out with $204,460 in specie, and merchandise as per invoice.”</p> <p>Letter to Nathan Dunn, from I. C. Jones, Oaltford df Co., and Samuel Archer, dated Philadelphia, March 24th, 1827.</p> <p>“ Esteemed Friend, Nathan Dunn, — ■</p> <p>Inclosed we hand thee invoice and bills of lading for property shipped on board the ship Newport, Burroughs master, bound for Canton, and consigned to thy address, amounting to $204,460, there being $136,000 in specie, and in merchandise $64,649.02. Having borrowed of Comly & Tevis $90,000 on this shipment, we have agreed to consign to them, as collateral security for the loan, the sum of $112,000. We therefore request that on the homeward voyage thee will make out and consign to order an invoice on account of each of our houses, amounting to $56,000, and inclose it under cover with bill of lading, also to order (and endorsed in blank) to Comly Tevis; the balance of the cargo thee will of course consign to us in the usual way, and in the manifest the whole will appear consigned to us.</p> <p>Thine truly,</p> <p>I. C. Jones, Oakford & Co., Samuel Archer.”</p> <p>“ Philadelphia, April 6th, 1827.</p> <p>“ Nathan Dunn.</p> <p>Respected friend, — In reply to thy letter, under date of the 11th mo. 24th, 1826, we may observe that we entirely agree in the sentiment, that a contract verbally entered into should be equally binding as though it was sanctioned by the strongest and most solemn instrument, signed and sealed by the contracting parties ; and perhaps it will not be going too far in saying this is not only our opinion, but have endeavoured to make it our practice so far through life; and when writing the gloomy letter to which thee refers, we were quite sensible of the nature and obligations of the arrangements between us, and had no disposition at the time to shrink therefrom; but with the aspect of the commercial world at that moment, and the prospect of heavy losses on the return cargoes, thought it safer to subject ourselves to any demand thee could properly make upon us for any delinquency that might occur on our part, rather than jeopardize a much larger amount, by continuing with prospect of heavy losses. We therefore cannot help thinking that some of thy remarks were rather premature, as the result must prove; at same time do not complain that thee should be alive to thy interest, without waiting the expiration of the time agreed on.</p> <p>As we had informed thee previous to receipt of the letter above alluded to, it will be seen that we were proceeding to the accomplishment of our engagements; and trust when thee has closed the business of the three ships to leave for Canton this year, no cause will remain for complaint, at least against us; but should we be mistaken, shall hold ourselves bound to fulfil to the uttermost of our engagements.</p> <p>As heretofore thy assured friends,</p> <p>(Signed) Samuel Archer,</p> <p>I. C. Jones, Oakford & Co.”</p> <p>“Philadelphia, April 14th, 1827.</p> <p>“ Esteemed friend, Nathan Dunn,</p> <p>We wrote thee under date of 9th inst., per Splendid, advising of the safe arrival of the Tobacco Plant, since which we have made extensive and satisfactory sales of silk goods received by her. We now have the satisfaction of advising of the safe arrival of the Superior, with her passengers all well; S. W. Archer and M. Loyd having reached this city. The Caledonia has also arrived. A few days since, we received a letter from our S. T. Jones, announcing his safe arrival in England, a copy of which we inclose.</p> <p>Although thee may suppose we are rather whimsical in our views, yet as we have reason to believe, notwithstanding the gloomy prospect with which our second term of agreement commenced, and the withdrawal of one of our late concern from the business, thee will not have much cause of complaint by the time the two years expire. We are emboldened to make thee a proposal to remain as our agent for a further term of years, from the 7th mo. 13th, 1828; and should it be agreeable to thee to remain, we will engage to make consignments to thy address to an amount that will insure thy commissions to amount to $25,000 per annum at least — the per centage to be 21,- for sales of outward cargo, and 2-| per cent, for investing proceeds thereof, and 3 per cent, for investing specie, and that all our shipments to Canton shall be consigned to thee.</p> <p>The other parts of the agreement same as heretofore, as relates to thy privileges and exclusive services, viz.:</p> <p>Nathan Dunn engages to use his best exertions in disposing of the outward cargoes received from us, and investing the proceeds for the return cargoes for our interest.</p> <p>Nathan Dunn is not to interfere with our interest in soliciting or receiving consignments from any other concern (excepting a mutual arrangement with some respectable resident at Canton, to act in case of demise), or in importing dry goods from England.</p> <p>We agree to allow Nathan Dunn, in lieu of factory rent, provisions, servants, cumshaws to linguists, and house compradore, if two ships arrive within each year, $1667 on each ship; if three or more within the year, $550 to be charged on each such additional ships; if but one ship arrives at Canton within the year, $3334 is to be charged in lieu of factory rent, &c., as above specified, on said ships; and if none should arrive within the year, then we agree to pay Nathan Dunn $3334 in Canton, in lieu thereof.</p> <p>We agree to allow Nathan Dunn fifteen tons of forty cubic feet privilege each, in two ships, in each year, from Canton to the United States; and for stores, specie, and merchandise (other than dry goods), not exceeding thirty-five tons, and in two ships annually from the United States via England to Canton free of freight. ,</p> <p>Any storage or other expenses on the outward cargoes at Canton, or on goods purchased in anticipation of arrivals, to be charged to us.</p> <p>And we are willing to state distinctly that, upon being advised of thy acceptance of this proposition, we- bind ourselves to the fulfilment of it by the payment of the above sum annually, although from unforeseen events we should not ship the amount that would produce this sum; but from our views and feelings we flatter ourselves that our shipments will be to an extent that will yield thee considerably more.</p> <p>Thy reply to this communication by the first and different opportunities to the United States will be very desirable, in order if thee accepts our proposition, we may have time to prepare our operations for next season; and upon receipt of such a letter we will consider the contract as complete.</p> <p>We have left the time of thy remaining in Canton blank, to be filled up by thyself either two or three years, as may best suit thy own views.</p> <p>With sentiments of much regard, we are thy friends,</p> <p>(Signed) I. C. Jones, Oakford & Co. Samuel Archer.”</p> <p>Extract of letter, dated Philadelphia, June 8th 1827, from I. C. Jones, Oakford Co. and Samuel Archer, to JVathan Dunn.</p> <p>“ Our arrangements will be made for the Globe to leave Liverpool on or about the 1st of 10 mo. next, and we have directed S. T. Jones to prepare from 50 to £60,000 sterling, depending upon the state of the market and the amount shipped; and we think it quite probable he will make it the latter sum.”</p> <p>“Philadelphia, September 28th, 1827.</p> <p>“Esteemed friend, Nathan Dunn,</p> <p>We have this day written thee advising of the arrival below of the Isabella, and acknowledging receipt of thy several favours up to No. 16, inclusive. Notwithstanding there has not been time for us to receive an answer to our communication made to thee in the 4th mo. last, relative to a continuance in Canton as our agent, yet from the remarks in thy letters now received, particularly No. 12, which inclosed a letter for S. T. Jones, we infer that thee was inclined to remain a further period, and, from the liberal terms offered by us, we cannot but suppose they would be accepted. We have concluded to forward thy letter to S. T. Jones, and to request him to prepare a cargo to be ready to leave Liverpool from the middle of the 5th month to the 1st of 6th month next, to the amount of about £60,000 sterling, to be assorted agreeably to thy instructions. We shall therefore rely upon thy remaining to take charge of and dispose of this cargo, whether our proposition is accepted or not; and if it is accepted, we shall go on to fulfil our part of it. Thee will be aware that if we had waited for thy reply it would have hurried us very much to send two cargoes next year, and would have made them very late. As thee will have this early information of our views, thee can make thy arrangements for the disposal of the outward and the purchase of a return cargo in anticipation of the arrival of the vessel, so as to make her return as a spring ship. As S. T. Jones will have plenty of time, and has now had much experience, we have no doubt but he will select a very handsome cargo. Thine truly,</p> <p>I. C. Jones, Oakford & Co. Samuel Archer.”</p> <p>(Received by defendant February 14th, 1828.)</p> <p>“ Canton, October 1st, 1827.</p> <p>“ Samuel Archer and I. C. Jones, Oakeord & Co.</p> <p>Respected friends, — I have duly received your favour of the 4th mo. 14th last, containing a proposition to me to remain for a further term of two or three years in this country as your agent, upon conditions set forth therein; which, on mature reflection, I agree to accept for two years, to commence on the 7th mo. 13th, 1828, and end on the same day in 1830.</p> <p>Very respectfully,</p> <p>Nathan Dunn.”</p> <p>Letter to I. C. Jones, Oákford <§• Co., and Samuel Archer, from Nathan Dunn, dated Canton, October 5th, 1827.</p> <p>“ I. C. Jones, Oakeord & Co., and Samuel Archer.</p> <p>Respected friends, — By the assistance of my Chinese friends, I have succeeded in despatching the Newport with a full cargo, but a recurrence of the same assistance cannot again be calculated on; the object of this letter is to call your attention to what appears to me to be the prominent defects in the course you have adopted in sending a ship direct from the United States this season: they are, first, that you were too late in making up your minds; 2d, the funds were too light; and 3d, that the ship carries too much by 300 tons or more. In the regular season, you advise of your intention to send the Newport with about $200,000 in specie and cargo, with an order for the investment that would fill about 630 tons, and amount to $229,500; the teas that you have estimated to cost $103,500, agreeably to my calculation will amount to $143,000; to fill a ship of the size of the Newport with the usual assortment of teas,- at the customary prices, requires, as you will see by the inclosed sketch, $221,000, and with your arrangements, the order for silks and nankeens would be superfluous for the want of means to purchase them. Silks, adapted to the sales in the United States, are generally the article that pays the best advance; the advantage that a resident has over the transient ship, provided he has the means and qualifications to avail himself of them, are such as in most cases to yield a fair advance, while others could only obtain first cost; there are but few seasons pass but what, from the 1st to the 7th month, silks can be obtained on favourable terms. I will not insist on these advantages any further: they have been pointed out to you years since, and if you do not avail yourselves of them, I believe I shall be clear. It may, however, be proper, previous to closing this address, (as it will probably be the last on the subject of direct ships), to state what would be the most eligible course, in my opinion, for you to pursue, if you should wish to avail yourselves of the advantages of your situation, which would be, that you make up your mind that you will send one direct ship every year, with at least $300,000 in specie, or a proportion of it in Bank United States bills on England; that the ship shall sail from the United States by the 1st of the 4th month; that she be about the size of the Tobacco Plant, or not to exceed in her carrying 500 tons; that she have a fast captain. And I would say that I would be prepared with a homeward cargo, and that she should sail on or about the 1st of the 10th month from Canton, so as to insure her to be with you in time to dispose of her cargo previous to the arrival of the regular season ships. It is important that the ship should leave you at the time mentioned, so that if early contracts were made for her silks, &c., the Chinese should know about the time they could be reimbursed; the less cargo the better. Ginseng should be omitted.</p> <p>Believe me very sincerely,</p> <p>Nathan Dunn.”</p> <p> “ Canton, December 25th, 1827. </p> <p>“ Samuel Archer and I. C. Jones, Oakford & Co.</p> <p>Respected friends, — Two invoices for part of the returns of the Woodrop-Sims’s cargo on your account, are, agreeably to your directions, filled up to order with my blank endorsement, and forwarded under cover to John A. Brown & Co. The purport of this is to say, that such endorsements constitute the shipper the consignee, and of course make him liable for the duties accruing to the government: in expressing my opinion that I do not believe that I incur any danger by such a responsibility with you, I should also state that in my situation I believe it is not usual to incur them. In requesting you to adopt another mode, I take the liberty of inclosing a form of an endorsement as attorney; if it answers your purpose, you will please take the written opinion of two eminent attorneys on the liability attached to it, which I should like to see.</p> <p>Believe me very respectfully,</p> <p>1st Woodrop-Sims. 2d Caledonia.} Nathan Dunn.”</p> <p>“ Canton, February 1st, 1828.</p> <p>“Samuel Archer and I. C. Jones, Oakford & Co.</p> <p>Respected friends, — By a reference to your respective accounts, which I now have the pleasure of inclosing, you will perceive that the balances together in my favour at this date is $81,295.21; to which is to be added the outstanding debts, due me on your account, of $72,280.33: amounting, as per statement also inclosed, to $153,575.54.</p> <p>The interest account herewith you will perceive is calculated,' according to the usage of Canton, at one per cent, per month. The principle upon which it is stated, is preferred on account of its simplicity, and accuracy in regard to dates. It embraces all receipts and payments of money on your joint account, and the average balance of cash in the treasury, which is taken from a cash-book, correctly kept and regularly balanced: the other sums on which interest is reckoned (except on the balance of former accounts) are commissions due me, as your account-current will show; the dates to these sums, when arising from sales, are taken at their average due. In regard to the interest on the balance in my favour, 10th mo. 21st, 1826, when your accounts were rendered, the correctness of that sum will be shown by a statement also herewith for that purpose; which balance is also deemed to have existed at the close of the former concern on the 7th mo. 12th, 1826. My books were not balanced until the 10th mo. 21st, aforesaid; but as no transactions intervened between those dates materially to affect the balance, I conclude it was due on the 7th mo. 12th, and have charged interest accordingly, as you will perceive.</p> <p>Respecting the charge of interest upon the average balance of cash on hand, you will find that I have credited you by interest on all money from the dates of its receipt, and charged interest from the dates of payment, which will explain the necessity of this charge. The nature and magnitude of my operations on your account will also convince you that such a balance is unavoidable.</p> <p>In charging commissions on the sales of dry goods and for the investment of the same, I have followed literally your letter on that subject of the 4th mo. 15th, 1825, which would not have required to be noticed here, but for my misconstruction of it when I formerly wrote you on the subject.</p> <p>Believe me, very sincerely,</p> <p>Nathan Dunn.”</p> <p>Extract of letter to Nathan Dunn, from I. C. Jones, Oalford Co., and Samuel Archer, dated Philadelphia, July 7th, 1828.</p> <p>“We have almost concluded on sending a small ship this coming fall to Canton via Liverpool; shall determine in a few days. S. T. Jones informs us Perkins & Co. are doing but little, and the company not so much as usual, and encourages us to believe a fall vessel may do well. Should we send another vessel she will not leave until late in the fall; will then leave two more vessels to be sent the next season.”</p> <p>Extract of letter to Nathan Dunn, from I. C. Jones, Oakford 4* Co., and Samuel Archer, dated Philadelphia, August 26th, 1828.</p> <p>“We have lately chartered the Tobacco Plant, which is expected to leave Liverpool for Canton in all the 11th month, with about £45,000 of such cargo as may be most likely to answer best.”</p> <p>Philadelphia, October 21st, 1828.</p> <p>“ Nathan Dunn.</p> <p>Respected friend, — The Alert being detained affords us an opportunity of advising of the arrival of the Globe on the 11th instant, all well. Her cargo is not yet landed, but think it will pay cost and charges. Young hyson teas are better; the raw silk we think will bring $4.50 per lb. short price; some of the piece silks have been sold to a good profit; the black sarsnets, cost $5.25, sold at $11.00; white sarsnets sold by I. C. J., O. & Co. at $17.00; rhubarb 75 cents. We think the worst has passed as to Canton operations, but it is with feelings not to be described, that we must say to thee our situation is such at present, that we cannot calculate on any benefit hereafter to arise from our own means or credit, having arrived at the foot of a mountain which we have no hope to pass, or at least not until we have encamped in the valley for some time to regain strength.</p> <p>On arrival of the Globe, we were refused permission of entering her cargo unless additional security was given; this was offered, but refused as not competent; it resulted in J. A. B. & Co. joining us in bonds, and taking possession of the property; this circumstance, added to the loss we sustained by Whitton Evans, completely closed the little credit we had; and seeing no prospect of being able to borrow hereafter from either banks or insurance companies, have, with the most painful reluctance, decided on coming to a stand for the present. ■ We need scarcely say to thee how great the mortification is to us; after an extensive business for thirty-four years by S. A. and thirty-seven years by I. C. J. to be brought to such a dilemma, and that, too, just at a time the most certain to do well by the Canton trade, which hitherto has proved so disastrous on returns; and having outlived most of those engaged in the trade, had the custom-house permitted us to enter as heretofore, we should have hoped to have pressed through our difficulties. The duties on the Globe would have given us $170,000; J. A. Brown & Co. would have taken our notes for $100,000 more; this they offered if we could enter without their aid. But so it is, and we are to follow' the sad example of a great portion of the merchants of our country.</p> <p>But amidst this thick darkness a bright spark is seen; J. A.'B. & Co. will send the Tobacco Plant this fall as previously intended, for our benefit, furnish all the needful, and if the prospect is fair on arrival of the Isabella, she will depart on same conditions, and be continued so long as it will benefit us. Our loss by W. Evans is about $235,000, and various other losses not much short of this amount, which have befallen us within the last twelve months; such heavy losses perhaps has scarcely ever befallen the lot of men in the same space of time, and yet we still hope ere long to pay all demands against us, but at this time cannot do so; and to accomplish so desirable an object, we have to ask whether it will comport with thy views and inclination to remain a further period in Canton; on this point we should like to hear from thee as early as possible. Should thee determine to remain, please say how long, and the terms, as we shall, in our present situation, leave both these points pretty much to thyself, believing as we do, that no extravagant rate would be demanded. Our friends propose sending two vessels in each year, so long as the business is found to answer; the funds probably about as formerly.</p> <p>Any funds thee may send forward hereafter, belonging to us, please ship for account and risk of J. A. Brown & Co., and to them consigned. We have had many and very heavy losses since embarking in the Canton trade, independent of losses on returns; this part of our loss would have been covered by the handsome operations on the outward cargoes.</p> <p>The prospect is certainly now fair for at least cost on returns; if this be realized, a few voyages via England we can but hope will compensate for the past in a great measure.</p> <p>We have already paid for account of W. Evans, since his stoppage, about $90,000 in cash, and not received one cent from him, with the exception of $3000 or $3500 in debentures, which he could not make any use of but in payment of bonds.</p> <p>Hoping to hear favourably from thee in regard to thy further stay at Canton,</p> <p>We remain, with respect and esteem,</p> <p>Samuel Archer, I. C. Jones, Oakford & Co.”</p> <p>“ Canton, March 17, 1829.</p> <p>“ Samuel Archer and I. C. Jones, Oakford & Co.</p> <p>Esteemed friends, — In reference to your request that I would remain for a further period in this country as your agent, as per your favour of the 10th mo. 21st last, I understand it of course to mean from and after the 7th mo. 13th, 1830, as I am already under an engagement with you until that time; and that I now proceed to state, that upon reflecting on this proposition I have come to the following conclusion: That if agreeable to you I will remain here for a further term of one year, commencing on the 7th mo. 13th, 1830, and ending on the same day in 1831, on the following conditions: that you engage to allow me a commission of five per cent, on the sales of dry goods received by way of England, and for the investment thereof; and three per cent, on specie, and three per cent, on the sales of all other cargo than dry goods from England, and three per cent, for investing the same. And that all shipments to this country in which you have any interest shall be consigned to me, and that you engage that my commissions shall amount to $25,000 in the year, payable here. That you allow me a privilege of 30 tons freight (of 40 cubic feet) from this to the United States free of charge, and from the United States to China via England a privilege for stores, specie, and merchandise (other than dry goods) of 35 tons each in two ships free of charge. That storage and other expenses arising on either the inward or outward cargo be charged to you. And that you allow me in lieu of factory rent, provisions, servants, and linguist’s fees, if two ships arrive within the year, $1667 for each ship; if but one within the year, $3334; and if more than two ships within the year, for such additional ships a further allowance be made of $550 each; but if no ship arrives within the year, I am to be allowed the $3334 in lieu of factory rent, &c., as above stated.</p> <p>And that I remain in this country for the disposal of the property, and the investment thereof, as may appear most for your intex-est; and that I do not interfere with you by the importation of dx-y goods by way of England.</p> <p>If you should feel a reluctance to the engagement of making up my commissions to $25,000 in case they should not equal that amount on the sales, I am willing in lieu thereof to make another offer, and which I will call the second proposition.</p> <p>Tlxat you engage to allow me a commission of six per cent, on the sales of dry goods by way of England, and for the investment thereof; and three per cent, on specie, and three per cent, on sales of all other cargo than dry goods from England, and three per cent, for investing the same; and that you engage that all shipments to this country in which you have any interest should be consigned to me; that the other parts of this second proposition be the same as the preceding, as detailed above.</p> <p>On being informed of which of these terms you accept, I shall l’emain in this country for the fulfilment of my part thereof; and have to request that you will please to infox-m me by the earliest conveyance.</p> <p>Believe me, with much respect, your friend,</p> <p>Nathan Dunn.”</p> <p>1st per Pacific, 2d brig Leander.}</p> <p>Extract of letter to Nathan Dunn, from I. C. Jones, Oahford Co., and Samuel Archer, dated Philadelphia, May 31 si, 1830.</p> <p>“ We had hoped that the extent of commissions on our business had been so great that in any new arrangement we should have been able to have them redneed to two per cent, on sales and two for investments; this would amount to a large sum yearly; this you can take into consideration, and if you think well of adopting it we shall be pleased, if not we prefer as the fairest mode that you charge 2-J- per cent, on sales and 2\ per cent, on the investment, the latter may be added at the foot of the invoices. Can you not also reduce the sum charged for factory rent, áse., below $1667 each ship; this is considered the highest rate paid for single ships.”</p> <p>Extract of letter to Nathan Dunn, from I. C. Jones, Oakford Sf Co., and Samuel Archer, dated Philadelphia, May 1th, 1831.</p> <p>“ If it was to the extent contemplated, say sterling £100,000 — • the gross sales of which would probably be nearly or quite $700,000 — and yielding a commission of nearly $35,000. This from one concern we think no trifling compensation. But to come to the point, it is our intention and expectation to continue to have forwarded, through the means of our friends, as many goods as you can vend advantageously.”</p> <p>“Philadelphia, December 24th, 1831.</p> <p>“ Respected friend, Nathan Dunn.</p> <p>Having now gone through an examination of thy accounts, and discovered what we consider sundry errors, amounting in the aggregate to the sum of $19,763.77, exclusive of interest, the particulars of which thee will observe per the inclosed accounts; be so obliging as to examine the different items and inform us thy opinion of the result.</p> <p>Very respectfully thy friends,</p> <p>I. C. Jones, Oakford & Co.”</p> <p>Letter to I. C. Jones, Oakford Sf Co., and Samuel Archer, frcrni Nathan Dunn, dated Philadelphia, February 11th, 1832.</p> <p>“ Respected friends, — I regret having delayed so long to reply to your note of the 12th mo. 20th last, inclosing two statements of alleged overcharges in my accounts, the first for $2872.19, growing out of the difference between 5 per cent, on sales and for investing the same, and 21- per cent, on sales and 21- per cent, on investments.</p> <p>The charges in my account are predicated on an arrangement between us for merchandise that should leave England to my consignment between the 7th mo. 13th, 1826, and the 7th mo. 13th, 1828, as per your letter of the 4th mo. 15 th, 1825, in which are these words, ‘ will allow 5 per cent, commissions on sales of merchandise and for investing nett proceeds of same,’ which appeared to me comprehensive, admitting of but one construction; and since the subject has been again called to my attention, by the receipt of your statement, I cannot see how the commission can be divided and 2J per cent, charged on the investment, as you seem to wish it, when this letter states that 5 per cent, is to be charged on sales, as the compensation for making them and investing the proceeds.</p> <p>The Isabella’s fourth cargo being purchased early in 1828, comes under the arrangement for these two years, and for the two succeeding years, the two cargoes in the ships Tobacco Plant and Isabella were forwarded.</p> <p>Believe me, very respectfully,</p> <p>N. Dunn.”</p> <p>“ Philadelphia, October 29th, 1838.</p> <p>“ Friend Nathan Dunn.</p> <p>My father being too unwell to write, has requested me to say, that on the evening of the 20th inst. he was handed two papers from thee, dated 5th mo. 31st, 1836, with some remarks, and purporting to be an account between thyself and him, showing a very large balance in thy favour. My father considers said statement ■ so extraordinary a one, that he cannot receive it as a true account between you. Respectfully,</p> <p>(Signed) Sam’l W. Archer, For Samuel Archer.”</p> <p>The case was argued by J. R. Ingersoll and J. Sergeant for the defendant, and Price and Meredith for the plaintiffs.</p>

<p>Where the vendor is in possession of land, and makes improvements on it, and afterwards the vendee enters into a contract to buy with full knowledge of all the circumstances, the jury are bound to believe it was the property of the vendor in the absence of countervailing proof, particularly when the vendee takes possession under the agreement, and enjoys it, and never offered to restore the possession, and shows no outstanding adverse title.</p> <p>Where, by articles of agreement, the vendor is to give a good right, and a free deed, and if the purchaser should make the land free, the costs are to be deducted from the purchase money, and the purchaser afterwards takes out a warrant and patent, the administrator of the vendor may sue for the value of the purchase money due, without previously tendering a deed.</p> <p>The vendee in such case has a right to an allowance for the sum paid for the patent, without regard to any change subsequently made in the price of obtaining the patent.</p> <p>A survey which has never been returned to the land-office is not evidence of an adverse title without a warrant or other evidence of one besides its recital in the survey.</p> <p>A vendee, under articles of agreement, who enters and continues in possession, must pay interest on the purchase money; but where he has been harassed or disturbed in his possession, or there has been wilful and vexatious delay, or gross or criminal laches on the part of the vendor, or where there are well-founded doubts of the title, or from neglect or otherwise for a length of time no administrator has been appointed to receive payment, it is for the jury to determine whether the vendee is to pay interest.</p>

THIS was an appeal by David Donner, executor and devisee of John Donner, deceased, from the decree of the Orphans’ Court of Lehigh county, confirming the report of auditors upon his account.

This suit was originally brought by John Hampton (constable) against Dr. Isaac Z. Coffman, in January 1840, before a justice of the peace, “ for $2.23, for a deficiency on a sale for account of a former purchaser,” as the cause of action was stated on the docket of the justice. On the hearing, the defendant exhibited a claim of set-off to the amount of $47.50, which was disallowed by the justice, who gave judgment for the plaintiff for $3.76|-.

This was an amicable action on the case by Joel Pennock, to the use of P. Frazer Smith, his trustee for the benefit of his creditors, against Joseph Pyle, in which it was agreed that the following facts should be submitted to the court below in the nature of a special verdict. P. Frazer Smith is trustee of Joel Pennock, under an assignment of all his personal property for the benefit of his creditors, made September 16,1839.

This was an action of replevin, brought by John E. Carver against William MTntyre, for 34 panel doors. The defendant pleaded not guilty, and afterwards, at the trial, non cepit and property. The defendant gave bond to the sheriff on service of the writ.

This was a scire facias brought by Isaac Fretz, Jr., and Catharine his wife, late Catharine Stover, in right of said Catharine, against Andrew Heller, Enos Fretz, and Bernard Hillpot, as garnishees of Abraham F. Stover and terre-tenants.

THIS was a writ of error to tbe District Court for the city and county of Philadelphia, in which a verdict and judgment were rendered for the defendant. It was an action of assumpsit, brought by John H. Reid and William Leckie, late partners as Reid & Leckie, to the use of J. H. Reid, against Thomas Morrison, to December Term 1833. The declaration contained three counts, viz: 1.

<p>THIS was a writ of quo warranto on the relation of John Dungan against William Primrose, setting forth that the defendant, since the 5th of October 1841, had exercised the office of a commissioner to represent the creditors of John Nicholson, deceased, under the Act of Assembly of the 16th of April 1840; that the relator claimed the office under a commission from J. B. Anthony, Judge of the Nicholson Court, dated 14th of July 1840, but was removed by the Judge on the 5th of October 1841, without previous notice, and when the Judge was in Philadelphia; whereas the Act of Assembly directs the court to be held for such purpose at Harrisburg; which order of removal the Judge, on hearing, refused to vacate, assigning as a reason the presentation of a deed of compromise between the heirs of John Nicholson and the creditors, which, the writ stated, gave no authority for the proceeding. That on the 5th of October 1841, the defendant was appointed instead of the relator, when no vacancy existed, and for other reasons.</p> <p>The defendant pleaded several pleas, the first of which was, that on the 5th of October 1841, the office of commissioner on the part of the creditors was vacant, and being so vacant, the Judge filled the vacancy by appointing the defendant to the office, who took the oath and entered on the duties of the office.</p> <p>The relator demurred, assigning among various causes of demurrer the following as the 5th: That the said answer and pleas, by not denying, admit that the vacancy in said office of commissioner was made and created by the removal of the relator therefrom, by the order of Judge Anthony, dated 2d of October 1841, and entered upon the minutes of the court on the 4th of October 1841, as set forth in the suggestion, and in no other manner whatever.</p>

This was an action on the case for slander by John Troné, and Elizabeth his wife, against Israel Weierbaeh and wife.

The plaintiff declared on two promissory notes, signed Haughey, Steel & Co. — one dated February 25th, 1839, for the payment of $350, at 30 days; the other, of the same date, for $396, at 60 days — and also for goods sold and delivered.

applied to the court to award a mandamus to the commissioners of the county of Philadelphia to pay the amount of a bill alleged to be due to the complainant by them for carrying prisoners to and from the jail and court, during the sitting of the Court of General Sessions.

THIS was an action of assumpsit brought by Charles Ellet and Mary his wife, the said Mary suing by her next friend and trustee, Elijah Dallett, for the use of said Elijah, against Timothy Paxson, Thomas P. Cope, Joseph Roberts, William J. Duane, and John A. Barclay, executors, &c., of Stephen Girard, deceased. This cause was tried at Nisi Prius, before Mr Justice Sergeant, and a verdict rendered for the plaintiffs in the sum of 16500. The defendants moved for a new trial.

<p>If the figure 4 in a promissory note, originally dated in 1834, be altered by the holder without the consent or knowledge of the maker into a 6, it avoids thie note.</p> <p>If a suit on a note endorsed by the payee in blank, be brought in the name of one who knew nothing of the suit till after it was brought, had no claim for the money, and had no interest in it, the jury may be directed to find a verdict for the defendant on that ground only.</p> <p>If a subsequent suit be brought in the name of the real holder, such former verdict and judgment are not a bar to his recovery on the note.</p> <p>It may not be error for the court below to admit or reject evidence, where its pertinency or materiality does not distinctly appear to a court of error.</p> <p>Where the merits were tried in a former suit, but the verdict was against the plaintiff solely on the ground of his incapacity to recover for want of interest in the note sued upon, the evidence given by witnesses then examined is admissible, if they are out of the state.</p> <p>It is error in a suit on a promissory note or bond in which the signature of the defendant is disputed on the ground of forgery, and an attorney of the court is a witness for the plaintiff, if the court charge the jury that such witness “is charged with high crimes — crimes, if true, that would drive him from the bar and disgrace him for ever,” that not being the issue trying, nor necessarily connected with its determination.</p>

They were actions on the case instituted by summons issued in the spring and summer of 1840. Some were brought on promissory notes of the defendants, payable at no fixed date, commonly called bank notes; others on post notes, payable at certain periods after date; a few to bearer, but chiefly to order, and endorsed by the payee.

THIS was a Writ of Error to the Common Pleas of Montgomery county, in which the plaintiff in error, Elias Hersch, sued out a scire facias against the defendants in error, Joseph Groff and John Reichart, executors of Samuel Shuller, deceased, to August Term 1838, to which the defendants pleaded nul tiel record, and other pleas.

This was an amicable action in debt by Samuel Comfort, guardian of the minor children of Sidney Eastburn, deceased, against Benjamin Mather and William Mitchell, executors of Mary Stack-house, deceased; and was instituted to test the right to a certain legacy under the will of Mary Stackhouse.

THE tenth rule of this court directs, that in cases where the plaintiffs reside out of the state, in qui tarn actions, in suits on administration or office bonds, or where the plaintiff, after suit brought, has been discharged under the insolvent law, the defendant, on motion and affidavit of a just defence against the whole demand, may have a rule for security for costs; and for want of such security at a time named by the court, judgment of non-suit will be entered, on…

The plaintiff proved the execution of the will, and read it in evidence. There was a codicil dated December 15, 1833, on the same paper with the will. Both were in the hand-writing of John Lewis, and signed by him. On the margin of the will was written the word “ obsolete,” which was proved by two witnesses to be also in the hand-writing of J. Lewis. The testator died in 1837.

Shipman, trading under the firm of Beckley & Shipman, against Daniel Fitler, sheriff of the city and county of Philadelphia. The declaration contained two counts: one for a false return, and the other for allowing one M. M’Cabe to escape from arrest, under a writ of capias ad respondendum, issued against him by the plaintiffs, on the following note: Philadelphia, Oct. 4th 1839. $600tW.

In the action of Ball v. Dyott and several others, the real estate of the defendant Dr T. W. Dyott was sold by writs of levari facias and venditioni exponas, and an auditor was appointed by the District Court to distribute the proceeds, which were claimed by depositors, note-holders of the Manual Labour Bank established by the defendant in the city of Philadelphia, and by other claimants. The fund in court, after deducting liens and charges, amounted to #15,714.39.

A rule was obtained in the court below upon the commissioners of Monroe county, to show cause why a' mandamus should not issue, commanding and requiring them to proceed forthwith to the repairing and re-constructing of the county bridge over Smith-field or Brodhead’s creek, at a place where the great road leading from Easton to Milford, crosses the same in Lower Smithfield township and county aforesaid.

On the trial, the counsel for Bavington, the plaintiff, opened his case by stating that Bavington claimed the price of certain trees and logs sold by him to Castor, the defendant, upon which, after admitting a credit of $15.18, he claimed a balance, amounting with interest to $93; and then called a witness, who testified, “ I was one of the arbitrators between the parties while this suit was before the justice.

<p>The first insurance by a fire office was upon “ merchandise generally, including liquors and groceries contained in store No. 37, South Wharves, for use of whom it may concern; say merchandise without exception.” A second was made in another office on coffee and other merchandise without exception, either on board the J. S. in this port, or in the brick store, No. 37, South Wharves, in the city of Philadelphia. A loss happened, by fire, on goods in the store not brought in the J. S., or landed therefrom. Held, I. That facts and circumstances out of the instrument are inadmissible to show the intention of the parties as to the second policy being a specific insurance on other goods not covered by the first. 2. That, as thus explained, there was not necessarily a double insurance, but the first might be on goods generally in the store, and the second on specific goods merely, brought in the J. S. or landed therefrom.</p> <p>Where there is a clause in a policy of insurance, that persons at that office must give notice of any insurance made on their-behalf by the same, and shall cause such other insurance to be endorsed on their policy, in which case each office shall be liable to the payment only of a rateable proportion of any loss or damage which may be sustained, and unless such notice is given the assured will not be entitled to recover in ease of loss, the condition applies to a subsequent as well as to a prior insurance.</p> <p>If the second policy contain a clause that such insurance shall not be binding if the assured has made, or shall make, any other insurance on the same, unless the same be allowed of by said company, and specified in their policy, and then to pay rateably, such clause does not affect the first insurance, if the assured could not at any time recover on the second policy.</p> <p>The assured’s informing the second underwriter that there was a former policy at another office, but adding it was on other property, would not, of itself, bring the case within this clause, nor would it be sufficient to make the second company responsible in an action.</p> <p>Quxre? Whether, in case of an insurance on fire on goods, with a clause stipulating for paying only a rateable proportion in case of another insurance, if the assured procures another insurance on the same risk, and the loss is less than the whole amount insured, he may recover the whole loss from the first underwriter, or only a pro rata payment from each!</p>

’ This was an action of trespass quare clausum, fregit by Frederick Stoever against the Ridge Turnpike Company, for breaking and entering his close, breaking his fence, cutting down trees, &c. and erecting a stone messuage and privy so as to obstruct the free ingress and egress of the plaintiff, &c. The defendant pleaded not guilty.

THIS was a Writ of Error to the District Court for the city and county of Philadelphia, in which judgment was entered for the plaintiff John Dupuy, Jr., brought an action of covenant against John S. Silver and William Dewey, and filed the following copy of the deed on which the suit was founded:— “ For and in consideration of the sum of Í1000 per annum, to be paid to him in equal quarterly payments after the first day of March next (A. D. 1837), John Dupuy, Jr., hereby rents…

THIS case came before the court by appeal from the decree of the Court of Common Pleas of the city and county of Philadelphia, confirming the report of auditors appointed to settle the account of Samuel Sneyd, assignee of J. B. & C. W. Dyott, under an assignment for the benefit of releasing creditors, dated the 26th of January 1839. The auditors’ report was a full one, but it is necessary only to state those parts of it which were contested on this appeal.

This was an amicable action, brought by the plaintiffs in error, the School Directors for the district composed of the borough of West Chester, against Francis James, guardian of the minor children of William Gibbons, deceased, in which the following case was stated for the opinion of the court, to be considered in nature of a special verdict:— On the first day of February 1836, Francis James, then and until the present time resident in the borough of West Chester aforesaid,…