Volume 6 — Wharton's Pennsylvania Reports

<p>This was a writ of Error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case brought by Andrew Brown against James Arrett.'</p> <p>The plaintiff was a manufacturer of linen goods, at Dundee, in Scotland, and had made several consignments of his goods to the defendant, who was a merchant in Philadelphia, for the purpose of sale on commission.</p> <p>This action was brought to recover damages for an alleged breach of the defendant’s duty as agent, in respect to the sale of certain of the goods.</p> <p>On the trial in the Court below, before Pettit, (President) on the 12th of November, 1839, it appeared that the defendant, on the 22d of September, 1822, had sent ten bales of these goods, for sale, to one James Young, of Boston, who sold the same, but failed, without paying over the proceeds.</p> <p>The principal subjects of dispute on the trial, were the liability of the defendant for this debt of Young; and also for a sale made by him in June, 1822, to one Folwell, in Philadelphia, who likewise failed without paying for the same. The plaintiff sought to charge the defendant with these debts, on the ground that, by his negligence and failure to give due notice to him, the defendant had made the debts his own.</p> <p>The plaintiff wrote to the defendant on the 22d of May, 1822, authorising him, in case any of the goods were unsaleable with him, to send “ a few bales to Baltimore, or any of the neighbouring cities,” if he thought it advisable, taking care to put them in safe hands.</p> <p>The defendant wrote to the plaintiff on the 15th of June, 1822, stating that the articles of ducks and dowlas never wrere, and he feared would not be very soon saleable in the Philadelphia market; adding, that he would do the best with his, the same as if they were his own; and if he should learn of a 'better market within the states for them, and it should be his business to inquire, would send them to it without waiting his orders.</p> <p>It appeared from the evidence, that Mr. Perit, of Philadelphia, had received in the year 1822, from S. and T. H. Perkins, an eminent commercial house of Boston, a letter, recommending in strong terms, one Mr. ’Andrew Thomson, a merchant of Scotland, who had resided a good deal in Boston, and requesting Mr. Perit to furnish him with introductions to his friends.</p> <p>Mr. Perit accordingly introduced Thomson to the defendant; and at his recommendation of Young as a suitable person for that purpose, Arrott sent to him ten bales of the plaintifPs goods, and four. others from another consignor, requesting him to dispose of them, soon affer arrival at the best prices. A correspondence then took place between Arrott and Y oung, of which the material parts are here given.</p> <p>On tl>e 22d October, 1822, Young wrote to the defendant that he had tried three bales at auction, which had been sold at rates which he mentioned—two of them bearing the plaintiff’s mark, and the other that of the owner of the residue of the goods; and on the 13th of November wrote that he had made another attempt to dispose of the linens, at auction, but stopped the sale, the prices being so unfavourable; and communicated an offer from a private house, of eighteen cents for the dowlas. This offer the defendant declined, but expressed his willingness to let the dowlas go for nineteen cents to an undoubtedhouse, and the sheetings at twenty-four to twenty-five cents. On the 22d of December, Young wrote to the defendant that, not having met with a better offer for the dowlas than eighteen cents, it was still unsold, and in his opinion had better be held until spring, or at least till an improvement in prices. No farther correspondence took place between them on the subject until the following spring. On the 19 th of April, 1823, the defendant requested Y oung to advise him of hisprospects. The latter in reply,stated that he had not been able to sell the linens at private sale at the limits, but had from time to time disposed of a few of them, by auction, at nineteen to twenty cents for the dowlas, and about twenty-four cents for the sheetings. On the 21 st of May, Young wrote to the defendant that he had sold some more of the dowlas at twenty cents, at which he expected soon to close sales. On the next day, and before he had received Young’s last, the defendant wrote to him that, since his letter of the 23rd ulto., he was without any communications from him, although daily expecting to hear, and also to receive an account-sales of linens so far as'they had been made, accompanied with a remittance; and on the 25th of May, he wrote to Young that when he had closed sales of the dowlas, &c,, he would be very glad to receive accounts of the same, with a remittance. On the 3d óf July, the defendant wrote to Young that since his of the 21 st May, he was without any communication from him, and referring to his own of the 22d and. 28th of May, requested account-sales at as early a day as possible, to be incorporated into his own account-sales, which he desired to send by his nephew, David Arrott, who was to sail for Liverpool on the 20th of July.</p> <p>On the 16th of July, Young enclosed an account-sales, by which it appeared that he had sold the whole of the goods, to the amount of about $2,700, of which $1,887 belonged to the plaintiff! By the terms of the credits, about one half of these sales would be due by the end of-July; a portion of them having matured in the previous spring. These last were the credits upon goods sold in the autumn; as to which it appeared that Young had, in reality, sold in the autumn a greater quantity of goods than his letters to the defendant had announced.</p> <p>On the 22nd of July, the defendant drew on Young, at three days sight, for $1,350 19 the amount of sales for which he would be in eash, on the 30th of that month, after deducting charges.</p> <p>This di'aft Young was unable to pay, having, as he stated, anticipated the amount of the sales from the auctioneer, in order to meet some pressing payments. His first open act of insolvency was the dishonour of this bill.</p> <p>Mr. Arrott, after advising with counsel in Philadelphia as to this debt of Young, went on to Boston, and consulted Mr. Hubbard, an eminent professional gentleman of that city, who, however, being of counsel for the Messrs. Andrews, who had an interest adverse to that of Young, recommended the defendant to employ Mr. Sullivan, which he accordingly did.</p> <p>It appeared that Winslow, Channing & Co., of whom Mr. Sullivan, jointly with Thos. H. Perkins and Isaac Winslow were assignees, had advanced money to persons, of whom Young was one, to purchase, and load, and send to Africa, a vessel to bring back a cargo. That vessel, and outward and homeward cargo were pledged to Winslow, Channing, & Co., and came into the hands of the assignees. It was .expected that Young’s part of this property would be sufficient to pay the demands of Winslow, Channing, & Co., and leave a surplus for his own use; but a litigation arose between Young and his co-partnerá' in the adventure, which was pursued in the Admiralty Court, and in the state court. Acting for the assignees of Winslow, Channing, & Co., Mr. Sullivan attended to these litigations as to the amount of their interest; and that claim being satisfied, further attended to them in order to increase the amount which might fall to Young’s share of the residue of the African adventure, to secure payment of Arrott’s demand. The defendant pressed Young very earnestly for payment, who gave him an order for 10s. in the 20s., on Isaac Winslow, who held the money under the assignment, and who accepted the order conditionally. The claim of Winslow & Co., being satisfied, a balance remained, which Andrews claimed as a creditor of the partnership in the'vessel of Young and Andrews; and Young claimed the same balance as creditor of the partnership. Young and Andrews engaged in litigation, and joined in a suit against the assignees for the balance, which would have been paid but for the acceptance of Winslow in favour .of Arrott, which had been previously obtained by him. Mr. Sullivan defended this suit to have out of the balance the sum intended for Arrott. The court ordered judgment and execution for the plaintiff. Young had no property but his interest in this fund.</p> <p>In compromise of the defendant’s claim, Mr. Winslow proposed to pay him six hundred dollars, which he was willing to accept, and give up Winslow’s acceptance, reserving his claim against Young personally. But the parties in Boston insisting on Young’s discharge, which Arrott did not feel himself authorized to give, the negotiation fell through.</p> <p>Mr. Hubbard testified that he thought at the time the arrangement made by the defendant in procuring the order of Young, and conditional acceptance of 'Winslow, a very favourable one for him, and that he had shown great skill and judgment in obtaining it; and that he believed until the year 1826, that Arrott would eventually realize more for the order than any of the separate creditors of Young, except Wm'. Andrews; believing that a compromise would be finally entered into, by which he would secure from 20 to 25 per. cent of ; the principal of the debt. He was of opinion that the defendant did adopt, at the time, the best and most prudent measures in his power for the purpose of securing the debt; and that he could not have adopted any measures more likely to obtain security or payment of •a part of it: but he did think in 1826 it would have been wise on the part of the defendant or his principals, if in his or their power, to have made a compromise with Winslow and Young, and have given Young a discharge in full.</p> <p>This step taken by the defendant to secure payment before Young, and the causes of his eventual want of success to realize any thing from the debt, were fully stated in the deposition of Mr. Sullivan, and the correspondence between him and the defendant, which were read in evidence on the trial.</p> <p>A number of witnesses were examined by the defendant, under a commission to. Boston, to prove that Young’s mercantile credit and standing were fair during the years 1822 and 1823 to the time of his failure.</p> <p>No written notice was given by Arrott to Brown of his having sent the goods to Boston, nor of the failure of Young, till the 7th May, 1824, when he wrote as follows:</p> <p>“I have been endeavouring to bring your sales to a close in order to hand you the same, -but it has not been in my power to do so completely: and in consequence of David’s wishes, I have concluded upon making them out so far as they have been effected, with a statement of what remains on hands. It is at his request I send this line, otherwise I would not have written you for a few weeks yet to come, being anxious when I did write, to be able to say how many shillings there would be in the pound coming from a bad debt, made on your account at Boston, to the amount of upwards of $1800, and up to this day I cannot tell. The instant I knew your property was in jeopardy, I went on there on purpose; and after waiting 14 days, and doing every thing man could do, succeeded in getting 10s. in the pound, as I thought and still think; but there is no dependence upon any security until the money is actually paid; which the lawyer thinks may be. the case in July. The whole amount of the debt was $2700; the balance is on account of my brother-in-law, Mr. David Lumgair. This bad debt has preyed on my mind very much, and one reason for my silence was, when I did write you about it, that I might be able at the same time to say, not that I have secured, but that I have actually received 10 shillings in the pound, which I was in hopes of getting before this day. If I had had money to have sent you, you should have got it, or good news of any kind to communicate, you should have heard from me, but to have nothing to write about, save bad debts, bad sales, &c., it was tome an irksome task, and is so now, but David has this morning insisted on my writing, and I remain,” &c.</p> <p>To this letter the plaintifF replied on the 21st June, 1824.—“I have received your favour of 7th ult., and regret the accounts it contains are so very unfavourable with regard to the shipments I had made to you. I hope you will get the whole cleared off soon, and send me account-sale and remittance. As to the bad debt you have made in Boston, you will excuse me for holding you responsible to me for it, since my instructions to you on the 22d May, 1822, were, if-you had occasion to send a few bales of my goods to Baltimore, or any of the neighbouring cities, you would take care to put them in safe hands. I was perfectly satisfied when they remained in your hands; there was no risk, and I wished if they were removed, to be in the same situation; besides your not advising me of the bad debt till long after it had happened, takes all responsibility from me, although the goods had even been sold at my risk. I regret this occurrence extremely, and hope you will not find the loss serious.”</p> <p>To this letter the defendant never replied.</p> <p>On the 23d, 1824, David Arrott wrote from New York to the plaintiff:—“ The enclosed packet containing your account-sales, and account-current made up to the 31st ult., I brought bn from Philadelphia yesterday, in order to despatch by this opportunity. My uncle desired me to say that he would be writing at length regarding them, and also of the goods remaining on hands unsold. I was extremély sorry to hear on my return to this country,’ of the bad debt made on your account in Boston, but I trust there will be 10 shillings in the pound sterling got from Young. My uncle went on himself to Boston, and did every thing in his power to get secured in what he could, but of these particulars he wall be writing you himself. Sales of all kinds of bleached sheeting are very dull both here and in Philadelphia.”</p> <p>The account sales referred to in the last letter, entitled sales per sundry vessels, showed as follows:</p> <p>Net amount sales . '. . $6398 85</p> <p>Of which at Baltimore, 897 28</p> <p>Boston, by Jas. Young, 1887 70 --</p> <p>2784 98</p> <p>And the residue $3613 87 at Phila.</p> <p>Account current referred to in last letter.</p> <p>Dr. Plaintiff,</p> <p>To charges, $2532 89</p> <p>Bills of exchange, 9431 23</p> <p>Bal. Int. Column, 374 99</p> <p>12339 11</p> <p>Cr. . By total sales, . 13931 36</p> <p>Less sales,</p> <p>To Jno. Folwell, $283 50</p> <p>By Jas. Young, at Bos. 1887 70</p> <p>---2171 20</p> <p>11760 16.</p> <p>1824, May 31.</p> <p>Balance in cash due by plaintiff to defendant, $578 95</p> <p>David Arrott, whose deposition was taken by the defendant, testified “that in the month of July, 1823, he sailed for Europe from Philadelphia: for six years previously he had lived with defendant as his clerk, and was intimately acquainted with his concerns. He knew of several consignments to the defendant by the plaintiff in the spring of 1822, and that the defendant sent a part of said goods to Boston, and consigned them to James Young at that place for sale, the market being bad for the goods at Philadelphia. He sent at the same time to Young, some of the goods of the plaintiff, and some goods which had been consigned to the defendant by David Lumgair * * * On the day of deppnent’s departure or the 'day before, defendant received an account of sales, but no remittance. That the defendant gave this deponent particular instructions to see the plaintiff, and to inform him of the state of Ins consignment particularly, and of the sales which had been made at Boston; and gave deponent a short letter of introduction to the plaintiff, and a recommendation to Mr.'Brown of deponent’s house at'New Orleans, which'was just then established. That shortly after the deponent’s arrival in England, he went to Scotland, and in August or September, 1823, he visited the plaintiff at Dundee, and made him particularly acquainted with the state of his consignment, and of the sales made at Boston. The plaintiff inquired of deponent what prices the goods brought at Boston, and the deponent informed him: a good deal of conversation took place between the plaintiff and the deponent, but the plaintiff made no complaint or objection to the defendant’s having sent the goods to Boston for sale, nor to any other particular of the defendant’s conduct in the management of the business. That the deponent shortly after went to England, and whilst there he received a letter from the plaintiff, inquiring of him if he had heard from his uncle the defendant, which letter the deponent answered, and in that letter, or verbally in a visit which he shortly afterwards made to Scotland, again he informed the plaintiff that he feared something had happened in Boston, as he heard incidentally from a friend at New York that his uncle had passed hastily through that place on his way to Boston.”</p> <p>Cross-examined.—“The goods were sent to Boston in April or May, 1822. Mr. Arrott received no regular account-sales until the sales were about to be closed. Deponent thinks he was advised of sales as they were made by letter, but no regular account-current was forwarded until the close. *' * * When the deponent was at Dundee, he had no copy of 'account-sales from Young, and of course showed none to plaintiff. Deponent cannot say how many packages of goods had been sent, or how many he informed plaintiff had been sent. Deponent has not the letter from plaintiff to him; it is now in New Orleans, if in existence. Deponent sailed for Europe the 20th July, 1823. About the time deponent went to Europe, he had established himself in business, and had left the defendant’s counting-house.”</p> <p>On the 27th June, 1822, the defendant sold to Folwell two bales of the plaintiff’s goods for the sum of $283 50, at a credit of six months.</p> <p>The amount of this sale was included with that of a sale of the defendant’s own goods in a note of Folwell in his favour at six months for $422 34.</p> <p>This note was read in evidence by the plaintiff together with an account dated 1st April, 1823, presented by the defendant to the assignee of Folwell, claiming balance due the defendant of $3216,75 cts.</p> <p>Also, the assignee’s dividend list, which included the defendant’s name as a creditor to the said amount. (</p> <p>Also another account subsequently presented, claiming balance of $2892,30, and sixteen years interest.</p> <p>It was also admitted by the defendant that previous to the receipt of the first dividend, he had released Folwell generally. Evidence was given by the defendant that Folwell was in good credit at the time the sale was made.</p> <p>The learned Judge of the District Court charged the jury as follows:</p> <p>“ This is an action brought by Andrew Brown, of Dundee, in Scotland, against James Arrott, of Philadelphia. The defendant was the factor of the plaintiff. Certain goods were shipped to the defendant to be sold on the plaintiff’s account. There are three separate transactions, yet unclosed between the parties, and this suit is brought to settle them. The plaintiff claims a balance of $4445 33, which is made up of the sum of $758 05, proceeds of eighty pieces of linen goods—of the sum of $1887 70, amount of sales of goods consigned by the defendant to James Young, of Boston; and of the sum of $283 50, amount of sales by the defendant to John Folwell, of Philadelphia—interest being calculated to this time and allowance made for certain remittances. As to the 80 pieces of linen goods there is no dispute now. The counsel have concurred in the mode of adjusting that part of the case. In relation to the other two items, however, the defendant denies that the claim of the plaintiff is well founded. As to the Boston debt, the defendant denies all liability for it whatever; except as mere nominal damages for omitting to give certain information to the plaintiff. In reference to the debt of John Folwell, the defendant also denies all responsibility, except as to forty per cent, of it, in the hands of Mr. Folwell’s assignees, but which the defendant holds himself ready to account for, as he can at once receive it from the assignees. The interest account being included, the defendant claims on his views a balance in his favour of $5 65, and asks for a certificate to that amount. Another view of the defendant is, that you may find some larger amount for the plaintiff; that you may allow as much more as you may see proper in the way of damages arising from the want of notice, if the plaintiff have actually sustained any.</p> <p>There are certain general principles of law for the government of principal and factor, which it is the duty of the court to state, and of the jury to enforce, as far as they are applicable to the facts of the case. There is no more dangerous error in reference to the business of the commercial world, than the adoption by a judge or a juror of the notion that he can decide every particular case submitted to him, of a contest between consignor and consignee, by his individual opinion of the honesty and good intentions of the respective parties. In many instances the law has wisely established certain rules which cannot be departed from, without incurring responsibility, no matter how upright may be the object or pure the dispositions of the party. We must not substitute the weakness of our hearts for the strength of our minds: our sympathy for our judgment. There is frequently an express understanding as to the terms of dealing; for example, in regard to the amount of commissions, merely for effecting sales, or for guarantee. But in almost every transaction between principal and factor, much is left to the operation of the general principles of commercial law, to the custom of merchants generally, or to the usage of the particular trade. These are recognised by courts and juries as necessary elements of the original understanding and contract. Where the parties desire to be governed by other rules, they must say so, and then their own compact, if not in conflict with the law, will bind them. Among the general rules referred to are these: Where a factor is employed to make sale of goods on consignment, he is bound not only to good faith but to reasonable diligence. It is not sufficient that he has been guilty of no fraud, or of such gross negligence as would carry with it the insignia or badges of fraud. He is required to act with reasonable care and prudence in his employment, and exercise his judgment after proper inquiries and precautions. If he shut his eyes against the light, or sell to a person without inquiry, when ordinary diligence, (that is, that degree of diligence which persons of common prudence are accustomed to use about their own affairs,) would have enabled him to learn the discredit or insolvency of the party, he will not be discharged from responsibility to his principal. Story on Agency, 172-174. On the other hand where the agent has conducted himself according to the usual course of business, and has employed the required diligence in his agency, he will not be responsible for consequences. Story, 190. Where the employment of a sub-agent is authorised, he must use the same reasonable diligence in his choice as to the skill and ability of the sub-agent. Story, 190. Again, it is the duty of an agent to keep his principal apprised of his doings, and to give him notice, within a reasonable time, of all such facts and circumstances as may be important to his interests. Story, 196. In some cases, too, the law goes further than merely to lay down the rule; it prescribes the measure of damage for neglect, even to the extent of a ■ strict penalty. The law not merely says, that the factor is bound to keep his principal informed of all material occurrences, but it also asserts, that where the conduct of the agent is such as to justify the principal in concluding that there is nothing at risk, and to warrant him in carrying on his business, and in making his calculations for the government of his affairs, upon the faith of the safety of the matters under the agent’s charge, the agent becomes an insurer for the whole amount. This is the doctrine emphatically laid down by our Supreme Court in Harvey v. Turner, (4 Ramie, 223.) It is the settled law whether we happen to like it or not. For my own part, however, I entirely approve of the doctrine of that case. There is no more hardship in it than in the instance of a guarantee commission where the agent takes the debt on himself. The agent there is not allowed to say, I acted honestly and honourably in making the sales, and it is therefore unjust to fix me for the loss of the debt. The legal effect of his contract is that he must pay at all events. So the legal consequence of the omission to discharge a very simple and well known duty relative to giving information, -is the same. The agent performs this easy duty, and he is free; he fails to perform it, and he is bound. It is an ingredient of the compact that such shall be the results. The rule ought not to be relaxed. Some sound reasons for a rigid enforcement of it are stated by the learned judge who delivered the opinion of the Supreme Court in the case above mentioned. Then the question is presented, do any of these rules apply to the facts before us? As to Young’s debt. Young resided in Boston. The defendant was bound to sell here only, unless he obtained permission to try another market. He relies on the plaintiff’s letter of 22d May, 1822 which contained this clause: “If any of my goods ax-e unsaleable with you, you may send a few bales to Baltimore or any of the neighbouxing cities, if you think it advisable, taking care to put them in safe hands.” On the 22d of September, 1822, the defendant sent on consignment to James Young of Boston ten bales of linen goods. It is conceded that the goods were unsaleable here, and that a few bales could be sent to a neighbouring city. But the plaintiff denies that Boston was a neighbouring city-; and that ten bales were within the authority. If there are any am-. biguities in these x-espects fix the plaintiff’s letter, he is not to take advantage of them. I should rather incline to adopt the plaintiff’s own view, as stated in his letter of June, 1824, whex'e omitting any reference to these points, he confines his complaint to the two matters of “safe hands” and “want of notice.” If it becomes necessary, it will be for the jury to decide whether on this part of the case, the defendant exceeded his authority. As to' the safety of the hands to which the goods were sent, the letter of the'22d of May, 1822, is not to be construed as containing a stipulation that the defendant should be answerable at all events fox’, the safety or solvency of the party in whose hands he might place the goods. The letter required only l-easonable care and diligence in the selection of the person to whom the goods should be sent.</p> <p>[The judge hex-e reviewed the testimony as to the choice of Mr. Young and as to his commercial standing, and said that if necessary to be decided it would be for the jury to determine whether the defendant did or did not use due diligence and make proper inquix’ies before sending the goods to Boston.]</p> <p>But assuming all the points of the case thus far to be in favour of the defendant, the plaintiff contends that there is still what he terms an overwhelming neglect or omission of the defendant in regard to giving material information, which completely fixes the debt on the defendant. The goods were transmitted to Boston in September, 1822. In July, 1823, the defendant was induced by a difference between Young’s previous letter and his accounts now furnished, to suspect Young’s situation. He immediately put him to a test, by means offthe draft for $1350, which proved his insolvency. To say-nothing of other omissions, particularly of the omission to inform the plaintiff of the consignment to Boston, prior to Mr. David Arrott’s visit to Scotland in August or September, 1823, the defendant, for nine-months after Young’s insolvency was made manifest to him, omitted to give any -notice whatever of the circumstance to the plaintiff. Here was a material fact which the plaintiff had a right to know, and which the defendant was bound to communicate. Nine months elapse before the defendant informs the plaintiff of any difficulty. The defendant concedes the omission to perform his duty, but contests the- question of the measure of damages. It becomes my duty here to state distinctly what the-law is on this point. A factor, though a sub-agent, sells goods on credit—sends his principal verbal notice, (after a delay of many months,) of the consignment, and of sales having been made—ascertains the insolvency of the consignee after there had been money in his hands—and then waits nine months before making any communication to the principal. Now, unless we are ready to overthrow the settled law of the land, I have no hesitation in saying that by the omission for so long a time to give notice of Young’s insolvency, the defendant made the debt his own, and that the plaintiff is not bound to offer evidence to show actual damage. The plaintiff-has a right to claim of the tribunals of this country, the benefit of the law of the land. He may say, I have made my calculations on the faith of the safety of these sales. I had a right to carry on my business on this faith. The effect of this delay is the same as if he had. charged a guarantee commission for making the sales. I put it to you then unequivocally, that the méasure of damage is the whole amount of the debt. A plainer cáse for the application of the doctrine could not, I think, be suggested. We are not at liberty to say, that perhaps the principal did not during the nine months, rely on the safety of his debt. ’ All that the law requires is that he might have done so. In the view I take of the law of this part of the case, it is unnecessary to inquire as to the alleged vigilance of the defendant in his efforts to secure the debt in Boston.</p> <p>Then as to FolwelPs debt.</p> <p>The goods were sold in June, 1822, at six months; at the time of the sale, Folwell was in good credit. Before the expiration of the credit, account-sales in part were transmitted by the defendant to the plaintiff, and a remittance made which covered this amount. This remittance would not conclusively bind the defendant. On the face of the account, it appeared that sales on credit had been made. That, however, did not prevent the defendant from re-charging the debt on Folwell’s failure, provided the defendant gave notice of such failure within a reasonable time, The fact that the money had been remitted, was perhaps an additional reason for prompt notice. It is a remarkable fact, that no notice was given of Folwell’s failure, till June, 1824. The whole of 1823 was allowed to pass by without a hint of it, and at last it was intimated only by a re-charge in an account-current; and even this, it is urged, was not a full account, as 25 per cent, had then been secured, which fact was not communicated. But here the rule of law is the same as to the want of notice, as. I have stated it to be in reference to Young’s debt. When Folwell failed, it was incumbent on the defendant to give notice within a reasonable time, and he omitted to do so at his own peril. If this were all of the case, it as strong as Young’s. Nine months delay is bad enough. Eighteen months delay is- no better. It has, however, been contended, that the plaintiff was bound to reply to the information of Folwell’s failure, and that his silence is an acquiescence, or evidence of an acquiescence, in the re-charge. There is neither law nor reason for this suggestion. For 18 months the plaintiff had a right to consider 'the money as his own, and after that lapse of time, he could not be affected by a recharge without his express consent to it. But if a recharge could have affected the plaintiff, it appears that this recharge did not give full information. If it was a mere recharge to credit in a new account, it was open for further explanation, and is not to be deemed as a charge of the whole amount. If the defendant’s liability was fixed before, then no effort of his could release him, without the plaintiff’s consent.</p> <p>On the two disputed points of the case, I charge you that from the delay to give material information, the defendant made both the debts in point of law his own. If wrong in this opinion, the Supreme Court will correct the error. I shall be happy to facilitate the steps proper to bring the case before them.”</p> <p>The jury found for the plaintiff, and a writ of error having been taken, the following errors were assigned.</p> <p>“1. Because the judge erred in his charge upon the subject of the measure of damages.</p> <p>2. Because the judge refused to charge as requested in the 0th, 10th, and 11th points, that the omission to communicate to the plaintiff the failure of Young, did not make the defendant liable to the plaintiff for any thing beyond the amount of the actual damage sustained by the plaintiff in consequence of such omission,, and beyond what the jury might believe equivalent to an indemnity therefor; and that the law did not make the amount of Young’s debt the measure of this indemnity.</p> <p>3. Because the judge refused to charge as -requested in- the 15th point, 'that the whole case was open to the jury to find a verdict either for the whole amount of the debt, or for such less amount as might in their belief afford to the plaintiff an indemnity for any actual loss or injury which might have been occasioned by the omission to communicate.</p> <p>4. Because the judge erred in refusing to charge as requested in the 12 th, 13th, 16th, and 17th points.</p> <p>5. Because the judge erred in refusing to charge as requested in the 19th and 20th points.</p> <p>6. Because the judge erred in charging the jury that the effect of the defendant’s delay to give notice of Young’s insolvency was the same as if he had charged a guarantee commission on the sales.</p> <p>7. On the subject of the first of the points on which the court was requested by the defendant to charge the jury, the court erred in not charging as therein requested, and in leaving it to the jury whether the defendant exceeded his authority in sending -the goods to Boston.</p> <p>8. The court erred in their charge on each one severally and respectively of the exceptions taken in the court below to the charge of the court which are herewith incorporated and set forth as originally there taken.”</p>

<p>CERTIORARI.</p> <p>i.On a certiorari to remove proceedings in the case of a road, no point can be made which is not apparent exclusively on the proceedings removed.</p> <p>2. Where an act of Assembly authorised a rail-road company to “ locate and construct” a railroad, and declared that the “ location shall be approved of by the judges of the Court of Quarter Sessions, upon the view of six jurors, to be appointed by said court as directed;” it was held that it was not a valid exception to the proceedings, that the location was made by the jury, nor that there were not two full terms between the appointment of the jury and the confirmation of their report.</p> <p>3. The regulation of a street in a city or incorporated district- is given to the corporation, only for corporate purposes, and is subject to the paramount authority of the state in respect to its general and more extended uses.</p> <p>4. The provision in the constitution that private property shall not be taken for public use . without compensation, does not prohibit the legislature granting to a rail-road company the privilege of laying rails on the streets of a city or town, and of using the rail-road so made.</p> <p>5. There is nothing in the constitution to prevent the grant of such a monopoly as a rail-road.</p>

<p>The defendant, who was a contractor for carrying the maii, became indebted to tho plaintiff and others, who were sub-contractors, and drew a bill on the post-master general, payable to his own order, for a certain sum, to be charged to iris account; which bill he endorsed, and handed it to A., one of the sub-contractors, and told him that it was good; that he received the drafts as his pay, and gave them as such. The bill was endorsed by the plaihtiff, and by A.; and was discounted, and the proceeds received by A., who paid part to the sub-contractors who were present, and retained the balance for payment of the others. The defendant was also one of the sub-contractors. Payment of the bill was refused at the department, and the plaintiff was compelled to pay it. Held, that he might recover in indebitatus assumpit for money paid &o., for the defendant; and that A. was a competent witness for him.</p>

<p>IN ERUGK.</p> <p>1. To render a bill of sale of goods valid as against creditors, there must be an accompanying, actual, vjsible^and notorious possession in the vendee. /S*. u - ’, It?,</p> <p>2. Where A. living in the country, and being indebted to B. and C., merchants in Philadelphia, made an assignment to them of his stock of goods in payment of his debt; and by an agreement between them A. was to remain in possession as clerk to B. and C., who took a lease of the premises, and a few days afterwards B. and C. made a bill of sale of the goods to D., who took possession of the goods, and, while in his possession, the goods were levied upon and removed by the sheriff upon an execution at the suit of a creditor of A.; it was held in trespass brought by D. against the sheriff and the execution creditor, &c., that the possession of the goods might be lawfully taken by D. notwithstanding any dissent by A., and that evidence was not admissible to show that no consideration passed from I). to B. and C.</p> <p>3. In trespass against a sheriff and execution creditor for taking goods of the plaintiff, or an execution against another, evidence is not admissible on the part of the defendants to prove that the goods were returned by the sheriff to the place from which they were taken a few days afterwards.</p>

This was an action of debt brought to November Term, 1837, in the name of the Commonwealth of Pennsylvania, to the use of John Stecher against George Stecher and Philip Messinger, upon a bond dated the20th dayof January, a.d.,1 832,executed by George Stecher, with Philip Messinger as his surety, in the penal sum of $16,300, with the following condition. “ Whereas, -at an Orphans’ Court held at Easton, in the said county, on the 26th day of November, 1831, the said court did…

<p>in error;</p> <p>1. In an action against a_ county, the sheriff returned that he had served the summons on A. and B. who “ are said to be two of the commissioners of the county.” Held, that the words “ said to be,” ought to he struck out of the return; and that the return was to be read as if the service had been made on two of the commissioners.</p> <p>2. Service of a writ of summons against a county upon two of the commissioners is good; and it seems that service upon one would be sufficient.</p> <p>3. Service of process upon a commissioner who has been elected, but who has not taken the oath of office, is good.</p> <p>4. If the sheriff reads a’writ of summons in the hearing of the defendant, it is sufficient without leaving a copy of the writ with him.</p> <p>5. Quere. Whether a county or township is amenable to the jurisdiction of a Court of Common Pleas of another county?</p>

<p>IN ERROR.</p> <p>. A testator made tho following provision, “ And it is also my will that G. L. shall pay $755 56 to my wife E.; it being her dower in the plantation that I sold to G. L.” And then after certain other bequests and devises, he added, “ My executors shall take so much money out of tho estate that I have not disposed of, and loan it on interest, so that the interest accruing from said money, and the interest of my wife’s dower, will make the yearly income of $100, which my executors shall pay to my wife in two equal half yearly payments.” The testator held a bond of G. L. with condition to pay to him, his executors, &e., the sum of $45 33, yearly, during the life of his (the testator’s) wife E., and at her decease the further sum of $755 56. Held, that the widow E. was entitled to tho sum of$755 56 absolutely, and notmerely to the interest of it.</p>

<p>IN ERROR.</p> <p>1. Parol evidence is admissible to prove that an agreement in writing not under seal, between A. and B., for the delivery of certain goods by B. to A., was in fact made by A. as the agent of C., and for his benefit.</p> <p>2. An agreement was made by the defendant with T. & M., beginning as follows: “ I have this day contracted with and sold to T. & M. all the starch which I may manufacture this year, or have manufactured by my agency,” &c.; binding himself that the quantity to be manufactured by him during the year should not exceed 1000 barrels, “ the fine at five cents, and the superfine at seven cents per pound, payable in cash on delivery,” &c. The agreement further provided, that if wheat should advance so as to exceed $1 20 per bushel, a proportionable advance should be made in the pound of starch; and that if wheat should decline, a corresponding deduction should be made, &e. The defendant delivered a part of the starch, but refused to deliver more, and sold and delivered other starch of his manufacture to other persons: Held, 1. That an action for the recovery of damages for'the breach of this contract might be maintained in the names of B. & B., for whom T. & M. were the agents, and upon whose account the contract was made. 2. That B. & B. had a right to bring the action before the expiration of the year mentioned in the contract. 3. That the judge below was right in charging the jury, that in the absence of evidence on the part of the defendant, they might assume that one thousand barrels were manufactured by the defendant; the action having been commenced about a month before the expiration of the year; and that as respected the price of wheat, the defendant having omitted to produce evidence, they might'presume most strongly against him within the limits of the contract and of the testimony.</p>

<p>IN ERROR.</p> <p>A testator, after giving a house to his sister D. for life, and making certain other provisions ibr her, devisedas follows: “ And I also give to every nephew and niece of mine an equal share of my estate : And that if any nephew or niece of mine die, leaving no heir before the division of my estate, then his or her portion shall not bo divided among his or her friends, but shall be divided equally among my surviving nephews'and nieces. And whereas there is a suit against P. W7s estate, I pledge the portion of E. S.” (a niece of the testator) “ to make good any loss P. W.’s estate may sustain by the said law suit so far as her portion goes, because I think it unjust that such a suit should have been commenced. It is my will and wish that all the lawful children of the body of J. L., son of my brother C. L., shall have the portion of their father divided equally amongst them, male and female, share andshare alike.” “ It is my will, and wish, and hope, that all my nephews and nieces above-named may be satisfied with my doings,” &c. By a codicil made about two years after the will, he made certain provisions respecting the portion of one of his nephews, reciting that in his will he had given and bequeathed to his “nephews and nieces” who should be living at his decease, eaefi a certain portion of his estate. E. S., the uiece mentioned in the will, was dead at the date of the will. Held, 1. That upon the construction of the will the children of E. S. were not entitled to a share or part of the estate. 2. That parol evidence was not admissible to prove that the testator knew of the death of E. S., and that she left children ; that a suit had been brought by them against the estate of P« W., which was discontinued in consequence of a correspondence between the testator and the representatives of P. W., in which the contents of his will were made known to the latter, and communicated to the children of E. S.; and that the testator had declared that they would receive their part of his estate upon his decease.</p>

<p>IN ERROR.</p> <p>In proceedings to estimate the injury sustained by the owner of a mill from a dam raised by the Schuylkill Navigation Co., it was held that the jury were to ascertain what was the real damage to the mill in ordinary events, and were not to^be governed by the consideration of the profits which the owner might have derived from an accidental rise of the value of grain at the particular time.</p>

<p>IN ERROR.</p> <p>1. In an action against a sheriff for an alleged false return of nulla bona to a writ of fi. fa., by which he was required to levy upon certain bank stock, standing in the name of A., the defendant in the execution ; it was held, that A. was a competent witness to prove that the stock was in fact purchased with the money of his brother, and that he had sold it to B. before thefi.fa. issued; although he (A.) had agreed to indemnify C. for being security to the sheriff for not levying on' the stock; C. having executed a release to the witness.</p> <p>2. Stock in a bank, or other corporation, standing in the name of a defendant in an execution, is not liable to be sold as his, under the act of the 29th of March, 1819, if it actually be the property of another.</p> <p>3. A., a stockholder in the Bank of the U S., sold his stock on the 22d of April, 1836, taking from the purchaser his promissory note at 60 days; and on the same day executed a power of attorney to transfer it. On the 6th of May, 1836, a levy was made upon the stock, which still stood in the name of A., by the sheriff, by virtue of a fi.fa. against A.: Held, that the stock was not liable to execution ; all hough the rules of the Bank required transfers of the stock to be made in the presence of an officer of the Bank.</p> <p>4. A sheriff is not bound to levy upon personal property alleged to belong to the defendant in an execution, upon an offer by the plaintiff to indemnify him. Unless it appear in an action against him for a false return, that the property actually belonged to the defendant in the execution, the offer to indemnify him will not make him liable to damages.</p>

<p>EQUITY.</p> <p>1. Under the act ofthe 16thof June, 1836,§ 13, this court had no power to compel a discovery of deeds and other papers, excepting where such discovery was material to the determination of an issue depending in this court.</p> <p>2. Equity will not compel a party in possession of land, to deliver up the title deeds to a person claiming the title to the land. If the latter recover possession of the land at law, equity will then compel the delivery of the title deeds to him.</p>

<p>Error to the Common Pleas of Delaware County, to remove the record of an action on the case brought by Peter Smith against Robert Churchman and Jonathan Roberts.</p> <p>The plaintiff declared in assumpsit for goods, &c. sold and delivered to the defendants, as co-partners in trade, under the firm of Jonathan Roberts. The defendants pleaded non assumpsit, and payment, with leave, &c.</p> <p>The cause came on for trial before Bell, (President) on the 27th of August, 1839, when the plaintiff offered in evidence his book of original entries, containing certain charges against the defendants, accompanied with the testimony of witnesses in respect to the handwriting in the book, and the delivery of the goods. The book was admitted in evidence, after objection on the part of the defendants; and exception was taken.</p> <p>A great deal of testimony was also given in respect to an alleged partnership between the defendants, which it is not material to state here.</p> <p>The learned judge charged the jury, in substance, as follows:</p> <p>“ This is an action of assumpsit to recover the value of certain ?owder alleged to have been sold and delivered by the plaintiff, 'eter Smith, to the defendants, Robert Churchman and Jonathan Roberts. The defendants say the powder was not sold to them; and unless, under the evidence, you should be of opinion that such sale was made to the defendants jointly, the plaintiff cannot recover in this suit; because whatever may be the justice of the claim against one of the defendants, unless it extends to and embraces the other, he does not make out the allegation of his declaration, which asserts a contract made with both. In order, however, to create such joint liability, it is not incumbent on the plaintiff to show a contract expressly made wdth both defendants or a delivery to both; for joint liability may exist, although the arrangement for the sale and delivery of the articles was made with and to but one of the defendants; if they stood in a relation, which, in law, constitutes one the agent of the other, as to all subjects within the object of their association; in other words, if, at the time of the sale and delivery of the powrder in question, the defendants were copartners in the prosecution of a business which required the use of powder, and such powder was purchased by one, even without the knowledge or assent of the other, both will be bound as fully as if the contract of purchase and sale were made by and with both. This, then, is the great question in the cause. Were the defendants in the years 1831, ’32, and ’33, co-partners for the purpose of quarrying and making profit of the stone of the Christiana quarry ? If they were, and you believe the plaintiff’s book of original entries, and the other evidence of the delivery of the article sold, the plaintiff is entitled to recover. If they were not partners, but, as is contended by Churchman, stood in the relation of landlord and tenant, the plaintiff is not entitled to your verdict. In order to determine this question correctly, it is important to ascertain what constitutes partnership, what are some of its characteristics, and how, in the absence of written evidence, the fact of its existence is usually ascertained. Partnership is a contract by which two or more persons join in common, money, goods, labour and services, for carrying on some lawful commerce, work or business, that they may share among them all the gain or loss thereby arising. So it may also be constituted by joining real estate owned by one, with money or labour, or both, contributed by another, if the object be to carry on a lawful commerce or business with the view to share ■ the loss or gain. Thus, an agreement that one shall provide a shop, loom, and tackle, the other to perform the labour, and to share the profit and loss between them, constitutes a partnership. 2 Watts, 342. So if one agree to render service in a store as clerk, to be compensated by a participation of profits, he is a partner as regards creditors. 6 Serg. 4* Rawle, 259. The leading characteristic of partnership is participation in profit and loss: if such participation exist, no matter what is the nature or amount of the property or thing contributed by the persons associated, the law intends a partnership, attended by all the consequences of such relation. Before I proceed to consider the usual proof of such a connection, it may be profitable to inform you as to some general principles which govern the liabilities of partners. (Plere the court pointed out the difference between ostensible and dormant partners, the extent and continuation of their liabilities respectively, and the general authority of one partner to bind his fellows by contracts in respect to the business of the firm.) Let us now inquire how partnership may be proved where the contract is not in writing. Where suit is brought against partners, less evidence of the existence of partnership is required than where the action is brought by persons as partners. In the former case, it is sufficient to make it out prima facie by proof of such facts as reasonably induce a belief: in the latter, proof more conclusive is required ; and the reason is, that in the one instance the plaintiff cannot be supposed to have the means of making himself acquainted with all the-evidence of-the defendants’ connection; in the other, such evidence must be within the knowledge of the plaintiffs. Where, therefore, the partners are defendants, proof of the acts, conduct, and declarations of the respective partners in conducting the business of the firm is usually relied on to establish prima facie partnership. Whether such acts, conduct and declarations, be sufficient in themselves for that purpose is purely a question of fact for the determination of the jury. It is sufficient for me to instruct you that such proof is competent, and from it the jury may legitimately deduce the fact Declarations, however, by one partner that others were connected with him, are not sufficient, standing alone, to charge such others as partners, but such declarations may be considered in connection with the acts and declarations of the others, tending in any degree to show partnership. Briefly, declarations or confessions of one, independently of other facts, are not evidence against another: taken in connection with other declarations and acts, proceeding from such others, they are evidence. On the other hand, the conduct of the alleged partners, in relation to the business of the alleged partnership, may properly be considered by the jury in disaffirmance of the allegation of partnership. (Here the court stated the facts of the case.) But apart from all the other facts of the case, we are to consider the effect of Mr. Churchman’s declarations made to Messrs. Maddock and M‘Cormick in 1831 and ’32, and the declarations of bis counsel before the arbitrators, • and here, that by the arrangements of the parties Mr. Churchman was to receive one-half of the profits or proceeds. I have already said, and the position is not disputed by the defendants’ counsel, that a participant- in the profit and loss of a concern, no matter what may be the arrangement between the parties, is as to third persons a partner, and as such liable for the debts of the firm. But it is said there must be a participation in the losses as well as the profits to make a partnership. This is true; but the very idea of profit includes the idea of loss ; for profit is that which remains after losses are paid. It is not neces-, sary to show that any losses were actually sustained. If the party from the nature of the arrangement was liable to suffer loss, the rule is satisfied. Now by the arrangement between Messrs. Roberts & Churchman, what was it the latter was entitled to receive? This is exclusively for your decision; but it is submitted that the evidence tends to prove that Mr. Churchman was to receive one half of the profits remaining after payment of losses. In 1832 he said he had netted in 1831, $1200. In 1833 he said they, Roberts and himself, had each netted $1200 ; thus putting himself on the same footing with Roberts. The word “netted” means, among business men, the sum realised after payment of all losses. It seems to me, therefore, that it is not correct to say that Mr. Churchman was to receive a moiety of the gross proceeds as compensation for the use of his quarry. On this point of the case a distinction exists of which it is proper you should be instructed; it is this: If a man stipulates that as a reward for his labour, or perhaps as a compensation for the use of his property, he shall have, not a specific interest in the business, but, a given sum of money, even in proportion to a given quantum of the profits, that will not make him a partner; but if he agrees for a part of the profits, as such, he is as to third persons a partner. In illustration of this distinction the following case is given. If the proprietor of a lighter agree with tire person who worked the lighter, that in consideration of working her, the latter should receive one half of the gross earnings for his labour, it is ruled that such agreement does not constitute a partnership, it being merely a mode of paying wages for labour; but if the agreement be that the two were to share the profits arising from the working of the lighter, such agreement would constitute partnership.</p> <p>But it is further alleged-that the relation of landlord and tenant existed between these defendants, and that the amount receivable by Mr. Churchman is to be considered as rent. If such relation did exist, the defendants cannot be made liable as partners. There is no proof that in 1831 and ’32, rent was to be paid by Roberts to Churchman. But although no such proof exists, it is insisted that the mode in which Roberts occupied the quarry was analogous to a renting of a farm on shares. I confess I can see no resemblance between the two cases. That a man may rent his land on shares, as it is called, without becoming a partner with his tenant, does not admit of doubt; and while the owner of the land keeps himself within the practice which governs such a letting, he is safe from the consequences of partnership; that is, while the landlord is content to receive from the tenant any portion of the gross produce of the farm, .such return is to be considered as rent; but the moment he becomes a party to a contract, founded on a communion of profit and loss, arising out of the sale in gross of the produce of the land, each party to receive a portion of the profits and to bear a portion of the loss, he puts himself in the position of partner in respect to the subject from which profit is to be made or loss incurred. This does not interfere with the undoubted right of the landlord to authorise the tenant to convert into money his proportion of the proceeds: in such case the tenant is the mere agent of the landlord. In the instance . before us, if the contract between Roberts and Churchman was that Mr. Churchman was to be paid for the use of the quarry, by a certain portion of the stone raised, or even by a certain sum in proportion to the stone quarried, or the value thereof, Mr. Churchman cannot be held as a partner, and the plaintiff is not entitled to recover. ' But if the agreement was, that after payment of losses and expenses, the profits were to be divided between Roberts and Churchman indefinitely, then, as to third persons, they are to be considered as partners, in respect to the business of the quarry at Christiana, and as such liable to the payment of all debts contracted in carrying on the business of the quarry. It does not appear, except from some statements made by Mr. Churchman, as to the renting in 1833, but that the parties carried on the quarry in this last year upon the understanding and agreement of the prior years. Be this as it may, if a partnership existed in 1831 and ’32, or at any time during those years, while the plaintiff furnished the powder, which was after-wards dissolved, it is incumbent on the defendants to prove notice of such dissolution to the plaintiff. No such notice is alleged, ahd consequently the defendants, if they were partners in 1831 or ’32, are liable for powder delivered by the plaintiff in 1833. Although the book of original entries was admitted in evidence to the jury, yet if you think the book was fraudulently added to or altered, with a view to charge Churchman, you ought to throw it altogether aside; and in such case you should found your vex'dict upon such testimony as is to be found in the case, independently of the book. A book of original entries is evidence of goods sold and delivered:.the jury are not bound by the prices set down in the book; but it is prima facie evidence of price. The receipts of August 24th, 1832, and May 23d, 1833, though in full, are open to explanation, and cannot have the effect of barring the plaintiff. In the absence of explanation, the receipts will bar the plaintiff’s recovery in this action.”</p> <p>The defendants’ counsel excepted to the chax’ge, and the cause was removed this court; and numerous errors were assigned both in respect to the admission of evidence and the charge of the court.</p>

<p>APPEAR</p> <p>1. A parol contract, for the purchase of land, is not taken out of the statute of frauds by the mere payment of the purchase money.</p> <p>2. A., tenant for years of land, made a parol agreement with his landlord, in the autumn of 1836, for the purchase of the land. Part of the purchase money was to be paid during the autumn, and the balance on the 1st of April, 1837; and A. was to con. tinue in possession as tenant, and to pay rent until the 1st of April, 1837, when his lease expired. In December, 1836, no part of the purchase money having been paid, he gave the vendor his note for 90 days for the first instalment, which was discounted for the vendor; and on the 1st of April, 1837, A. paid this note and the balance of the purchase money, and received a conveyance. Afterwards the land was sold as the pro-^ perty of A. under a judgment obtained after the conveyance. Held, that a judgment* creditor of A., whose judgment was obtained in January, 1837, was not entitled to be paid the amount of his judgment out of the proceeds of the sheriff’s sale.</p>

<p>Error to the Court of Common Pleas of Northampton County.</p> <p>• The circumstances of the case were thus:</p> <p>On the 26th of February, 1817, Robert Lyons executed six several bonds to Andrew Whitesell; the first for $500, payable on the 27th of May, 1817; and the remaining five, for $600 each, payable on the first day of April, 1818, 1819, 1820, 1821, and 1822 successively ; and on the same day he executed a mortgage to Whitesell upon two tracts of land, in Lower-Mount-Bethel township, Northampton county, to secure payment of these bonds.</p> <p>Andrew Whitesell assigned these bonds and mortgages on the 22d of October, 1825, to Peter Ott; who on the 2d of April, 1835, assigned the same to Samuel Ott.</p> <p>On the 2d of April, 1835, Samuel Ott brought suit upon four of the bonds which remained unpaid; and obtained judgment on the 27th of November, 1837.</p> <p>A fieri facias was issued upon this judgment to August Term, 1838; to which the sheriff made return, that he had sold the personal property of the defendant, amounting to the sum of $239 66: and for the residue levied on two tracts of land in Lower-Mount-Bethel township; which by an inquisition held on the 24th day of August, 1838, were found sufficient to pay and safisfy the debt and damages in the fi. fa. mentioned, together with the costs, within the space of seven years, beyond all reprises; and that thereupon the same inquest had assessed the value of the yearly rents and profits of the real estate at the sum of $200 60 cents.</p> <p>No further proceedings were had upon this judgment.</p> <p>On the 8th of November, 1838, a scire facias was sued out upon the mortgage by Andrew Whitesell, for the use of Samuel Ott, against Robert Lyons; to which the defendant pleaded payment, with leave to give the special matter in evidence.</p> <p>Issue having been joined upon this plea, the cause came on for trial 'before Banks, (Prps’t) on the 26th of November, 1839; when the defendant gave in evidence the record of the proceedings- upon the judgment on the bonds, and relied upon them as a defence to the action.</p> <p>The learned judge charged the jury in substance as follows:</p> <p>“ This is a scire facias on a mortgage given by the defendant. Bonds had also been given for the same debt. Suit has been brought on the bonds and judgment obtained. Execution was issued on this -judgment; a levy was made on personal property which has been sold, and also on land; and the inquest found that the rents would pay tfie debt in seven years. No further proceedings were had on this judgment and execution. After all these proceedings were had, this scire facias was issued on the mortgage. The defendant contends that the former proceedings are a defence to a recovery in this action. I do not think so. Part of the debt is still unpaid. The plaintiff did not take out a liberari facias. If he had, and the officer had put him in possession, then it might be a question whether there could be a recovery in this case. As it is, the former proceedings are not sufficient to prevent the plaintiff’s recovery in this action.”</p> <p>The defendant’s counsel excepted to this charge, and took a writ ■of error to this court. The only error assigned was as follows:</p> <p>“ The court erred in charging the jury, that the judgment for the same debt on the 27th of-November, 1837, and the subsequent,proceedings thereupon, were insufficient to bar the plaintiff’s recovery in this action,”</p>

This was an action for work done, brought by John Kisterbock against Charles Kuhn, before AldermanBinns, who gave judgment for the plaintiff on the 27th of February, 1837, for $19,75: whereupon the defendant, Kuhn, appealed to the Common Pleas; his appeal being entered to March Term, 1837.

<p>IN ERROR.</p> <p>1. In an action on a promissory note drawn by the defendant in favour of the plaintiff, the defendant called a witness, who stated on his voir dire, that he was interested in the event of the suit, and expected to receive part of the consideration of the note. Held, that he was competent to testify for the defendant; the witness making no objection.</p> <p>2. It seems that the defendant would have a right to compel a witness to testify under such circumstances.</p> <p>3. Evidence is admissible of admissions made by one of two co-plaintiffs or defendants, respecting material facts within the knowledge of the party making the admissions; but declarations by one of two co-plaintiffs or defendants of what he has heard the other plaintiff or defendant say in regard to the subject-matter of the action, are not admissible.-'</p> <p>4. By.articles of agreement under seal between the plaintiff and defendant, the defendant agreed to take a certain portion of a rail-road contract, which the plaintiff had entered into with the rail-road company, at a certain rate, and to pay the plaintiff a certain sum for it; and the plaintiff agreed to give the defendant a power of attorney to do all business pertaining to the contract if accepted by the company: Held, that these were independent1 covenants, and that it was not necessary for the plaintiff to" prove that he had given or offered to give the defendant the power of attorney mentioned in the agreement.</p>

<p>Error to the District Court for the City and County of Philadelphia.</p> <p>In the Court below K. P. Edgell brought an action on the case against Daniel M'Laughlin, upon a check drawn by the defendant upon the Philadelphia Bank, dated Philadelphia, July 29th, 1836, in favour of S. Comfort or bearer for $500. Plea, non-assumpsit, fyc.</p> <p>On the trial befoi’e Stroud, J., on the 28th of February, 1838, the plaintiff’s counsel gave the check in evidence, and proved a demand upon the bank and a refusal to pay by the direction of the defendant.</p> <p>The defendant’s counsel then offered in evidence the following paper.</p> <p>“ The undersigned having made a wager concerning ascertain note in writing, or letter, said to have been written by Daniel M‘Laughlin to George C. Baker, they put into the hands of Stephen Comfort, each a check of • this date for the sum of five 'hundred dollars, which the said Stephen is to deliver to K. F. Edgell on the first day of August; 1836, if the said K. F. Edgell will deliver to the said Stephen any letter or lióte in the handwriting of Daniel MfLaughlin, party hereto, requesting the said George C. Baker to pay any larger sum, than the hundred dollars, which he lately borrowed of the said Daniel; but in case the said K. F. Edgell, party hereto, fail to produce and deliver said note, with such request as aforesaid in the said writing to the said Stephen, on the first day of August, and in that case the said Stephen is to deliver both the said checks to the said Daniel for the said Daniel’s use.</p> <p>(Signed)</p> <p>D. McLaughlin,</p> <p>K. F. Edgell.”</p> <p>The plaintiff’s counsel objected to this paper; but it was admitted by the Court, and exception taken.</p> <p>The plaintiff’s counsel then gave in evidence a letter from the defendant to George C. Baker, dated the 8th of July, 1838, requesting him to repay the sum of $ 116.</p> <p>The learned judge charged the jury, as follows;—</p> <p>“ I shall place this case before the jury, upon a plain ground. I construe the paper produced to be a wager. It is a frivolous, idle, and trifling wager, and it is not becoming courts of justice to have such cases tried before them. Such was the law in England before the Revolution; and though there have been some decisions since, which might tend to establish a different conclusion, yet there has been exhibited a constant desire upon the parts of courts there, to restrain suits upon such subjects. (The learned judge here gave some instances, and proceeded.) And our own Supreme Court has, I have been informed, recently decided, that a bet upon a boat-race cannot be recovered. My opinion therefore is, that the paper discloses an illegal wager, and that therefore the plaintiff cannot recover, though he may have performed the matters assigned to him, and produced the paper specified. It is a wager and nothing else; and there is nothing appearing in it which can be construed to be a consideration, upon which the promise to pay can be supported. Under this view of the case, the jury will find for the defendant.”</p> <p>The -jury accordingly found for the defendantand this writ of error was taken.</p> <p>The plaintiff in error assigned for error the admission of the evidence excepted to, and the charge of the Court.</p>

<p>IN ERROR.</p> <p>1. In a writ of attachment in execution, under the act of the 16th of June, 1836, it is not necessary to state the kind or nature of the property to be attached. It is sufficient if the writ requires the sheriff to attach “ the goods and chattels, rights, credits, .and moneys,” of the defendant, in the hands of the garnishee.</p> <p>2. It is not error that such writ required the sheriff to summon the defendant in the judgment as well as the garnishee; the naming of the defendant being merely surplusage.</p> <p>3. A writ of attachment, which was issued upon a judgment against A. L., directed the sheriff to attach goods, debts, &e. of A. L., and to make known to A. L. and O. JL. to appear &c. to show why the said judgment should not be levied of the effects of the said A. L. in the hands of the said C. L. &c. To this writ the sheriff returned that he had attached and levied “ a debt of about $600, due to the defendant by the within named A. L. and in his hands,” and served the writ on the defendant, A. L., by giving him a copy, &e. Afterwards, on the petition and affidavit of the sheriff, the Court of Common Pleas allowed him to amend his return as follows, “ Served the within writ on the within named defendant, A. L., and also on the within named C. L., by giving the said A. and C. each a true and attested copy of said writ,” &c: Held, that the court had power to allow of the amendment; that the two returns were to be taken together, and that they constituted a sufficient return.</p> <p>4. If the garnishee, in a writ of attachment in execution, make default by not appearing after due service of the writ, judgment ought not to be given against him to be levied of his goods and chattels, &c. The judgment ought to be that the plaintiff have execution of so much of the debt, &c. due by the garnishee to the defendant, and attached in his hands, as may satisfy the judgment of the plaintiff, with interest and costs: and if the garnishee refuse or neglect, on demand by the sheriff, to pay the same, then the same to be levied of his, the garnishee’s goods, lands, and person, according to law, as in the ease of a judgment against him for his proper debt; and that the garnishee be thereupon discharged as against the defendant of the sum so attached and levied, &c.</p>

<p>IN ERROR.</p> <p>In a claim filed under the Mechanics-Lien law a building was described as situate “ on the west side of 13th street, between Vine and James streets, in the county of Philadelphia, belonging, or said to belong to C. S.” (the defendant). In point of fact the building was situate on the west side of 13th street between Callowhill and James ■streets. Callowhill street intervenes between Vine and James streets. Held, that the description was sufficiently certain; the defendant having no other house in that street.</p>

<p>IN ERROR.</p> <p>In an action by a blacksmith to recover for work done, the plaintiff produced a book containing entries, part of which he swore were made by himself not later than the second day in the evening after the work was done, and were partly taken from a slate and partly from his own head. A witness was also produced, who testified that he made some of the entries by copying them from the plaintiff’s slate on the evening of the day on which they were made, or in the course of the next day. Held, that the book was admissible in evidence.</p>

This was an appeal from a decree of the Court of Common Pleas of Northampton County in the matter of the accounts of John Fuchs, committee of the estate of Conrad Fuchs, a lunatic. In 1822, John Fuchs and Adam Sandt were appointed the committee of the lunatic. On the 18th of March, 1837, John FucBs filed an account in the Court of Common Pleas, which was referred to auditors, who made a report on the 19th of April, 1839.

<p>IN ERROR.</p> <p>1. E. S. B., who was the owner of a lot of ground on the west side of 8th street, in the city of Philadelphia, and also the owner of a lot on the south side of Chesnut street, the rear of which lot bounded the first lot on the west, conveyed the lot on 8th street to J. S., “ bounded on the west by other ground of E. S. B. (viz. the Chesnut street lot,) and on the south by an alloy of the width of 2 feet 6 inches, intended to be left open by the said E. S. B.; together with the free use and privilege of the said alley as a passage, in common with the said E. S. B. and his heirs, and those to whom he may likewise grant the same privilege together with the privilege of building on the said alley, &c. Four months after the date of this deed, E. S. B. made an agreement with T. C., who was the owner of a lot adjoining the 8th street lot on the south, by which, after reciting that E. S, B. had agreed to open an alley 2 feet 6 inches wide, running west 82 feet 6 inches, &e. the privilege of which, in common with the said E. S. B., his heirs and assigns, was intended to be granted to J. S., it was agreed that T. C. should leave out forever on the south of the alley a strip of ground one foot in front on 8th street, by 82 feet 6 inches in depth westward, so as to widen the alley to 3 feet 6 inches, for the common use and benefit of the said parties, their heirs and assigns, &c. After-wards E. S. B. conveyed the lots on Chesnut street to G. M., together with the' free and common use and privilege of the said 3 and a half feet wide alley, and of a water course over and along the same, and the right of soil of the northernmost part of the alley, x subject to the privileges granted by the agreement to the said T. C. and J. S., their heirs and assigns, &e. G. M. was at the time of this conveyance the owner of other lots' of ground on Chesnut street adjoining the lots so conveyed to him by E. S. B. on the west; and opened an alley in the rear of them communicating with the said alley leading into Eighth street: Held, that the right of way, &c. in the said alley in common with J. S. and T. C., and their heirs, &c., was confined to the owners and occupiers . of the lots on Chesnut street, originally owned by E. §. B., and adjacent to the alley, and could not be extended by G. M. to the owners and occupiers of his lots adjoining on the west.</p> <p>2. Where there is evidence of an uninterrupted use of an alley for a passage and watercourse, for a period less than 20 years, evidence of contribution by the persons so using it, to the expenses of laying and repairing the pavement, and of laying water-pipes under the surface, is proper to be submitted to the jury, as bearing upon the fact of the presumption of 0 grant.</p> <p>3. A party who might otherwise be entitled to the exclusive enjoyment of an easement may be equitably estopped from contesting the right of others to use it, if by allowing a common enjojunent of it for a period less than 20 years, and by positive acts of acquiescence on his part he encourages an innocent purchaser to pay his money for the purchase of property to which such easement appears to be appurtenant.</p>

<p>IN ERROR.</p> <p>In 1832 A. executed three bonds, each with condition for the payment of a certain sum'to . B.; one on the 1st of April, 1833; one on the 1st of April, 1834, and the third on the 1st of April, 1835; and at the same time executed a moitgage of certain real estate,to secure payment of the bonds. In October, 1833, judgment was entered upon the bond first payable, and execution issued, under which the'mortgaged premises were sold, in January, 1834, to C. Held, that the lien of the mortgage was altogether discharged by the sale.</p>

<p>1. Under the act of the 27th of February, 1798, when the Court in Bank have made an order upon a party to produce at the trial certain specified writings, the judge at Nisi Prius oatmot inquire whether they are pertinent to the ease, or whether they would or would not be evidence if produced.</p> <p>2. The party upon whom the order has been made, must either produce the writings named in it, or satisfy the judge why it is not in his power to produce them.</p> <p>3. On the trial of ah action against a corporation, upon whom an order had been made to produce certain papers, the defendant’s solicitor swore that when he received notice of the Order, about a year previously, he left it with the cashier of the company. That the office of the company had been removed a few weeks previously; and that he had on the morning of the trial searched in the office for the papers without success. No other officer of the company was produced : Reid, that the non-production of the papers was not satisfactorily accounted lor. ■</p> <p>4. Under peculiar circumstances, the Court will direct the assessment of damages upon a judgment given against a defendant in consequence of the non-production of papers, to be made at Nisi Prius.</p>

<p>¡N ERROR.</p> <p>1. Although the taking of the note of a third person as collateral security for a pre-existing debt, without more, will not place the taker in the situation of a holder for value, so as to protect him against the equities subsisting between the original parties to the note; yet it is otherwise if there is a new and distinct consideration—as if time was given in consideration of obtaining the note as security for the debt, &c.</p> <p>2. The plaintiffs, who were creditors of A. to the amount of $1500, held as security for the debt a bond given by a third person to A. for about $2400. A. applied to them for the bond, alleging, that he had an opportunity of getting the money upon it, and would with the proceeds pay the amount of his debt to them. The bond was 'delivered to A. upon this understanding. A few days afterwards A. paid the plaintiffs $800 in cash, and gave them a note drawn by the defendant in his favour for $983, as security for the balance. Held, that under these circumstances the note of the defendant was taken upon a sufficient consideration, and therefore that the plaintiffs were entitled to recover against the defendant, although there was no consideration between him and A.</p>

<p>A will contained the following provisions : “ As to my worldly goods of all sorts and kinds, I will and order that they shall be put under the care and be kept as a general fund, (except such as shall be hereafter otherwise ordered in this will or my codicil hereto affixed,) by my executors' and their successors thereafter ibr the term of one hundred years from and after my decease, and all the rents and profits to be equally divided between my four children S., T,, W., and S., on the seventeenth of May and twenty-seventh of November of each year, and on the death of either of them, the portion of the deceased to be divided and paid to each of their children equally. That on the death of either of my executors a successor shall be chosen by the survivors of my children, and the children of the deceased, as one to vote-in the choice as representative oftheir parent, and on the death of all my children, then by all the survivors whó are entitled as above and so on for the above-mentioned 100 years, after which, the whole to be equally divided among the survivors who shall retain the surname of Bradford and shall be lineally descended from me.” The testator gave an annuity to his housekeeper, and certain articles of furniture, &c. to certain of his children, and concluded with the appointment "of executors. By a codicil the testator, reciting that his son S. had involved his brother T. in difficulty, directed that his executors should annually, “ as the portion of my estate becomes due to the said S., pay three-fifths of the said legacy to the said T. till the whole debt with the interest shall be liquidated and the remainder to the said S.and reciting that his son W. had involved him in debt, he concluded as follows: “ it my will that before they any part or parcel of the sum devised him, that my executors shall pay for the relinquishment of the said debt three- . fourths of the legacy, and the remainder to the said W.” Held, that the real estate of the testator did not pass under this will.</p>

<p>A vessel was insured “ for and during the term of twelve calendar months, ending on the 10th of November, 1838, with liberty of the globe; and if at sea at the expiration of the said twelve months, the risk to continue at the same rate of premium until her arrival at her port of destination in the United States.” “ Beginning the adventure upon the said vessel, &c. for twelve months from November, 10,1837, as aforesaid, and so shall continue and endure until the said vessel shall be safely arrived at November, 10,1838, at noon, with liberty of the globe, as aforesaid, and until she shall be moored twenty-four hours in safety,” &c. The order for insurance was in the words of the first clause above stated. The vessel sailed from Philadelphia in November, 1837, for South America, for the purpose offreighting.and took on board a cargo entirely on freight, and sailed on the 9th of October, 1838, for the island of Jersey, in the British Channel, for orders. On the 10th of November, 183S, she was at sea on the voyage to Jersey; and while still at sea, in December, 1838, encountered a gale, which did her great damage. Held, that on the true construction of the contract, the underwriters were not liable after the expiration of the year, unless the vessel should be on her voyage to her port of destination in the United States; and therefore that they were not answerable for the loss suffered in the gale of December, 1838.</p>

<p>IN ERROR.</p> <p>An assignment for the benefit of creditors stipulated for a “ full and complete release of their respective claims” against the assignors within a certain time. A mercantile firm, creditors of the assignors, executed a general release under seal, and added to the signature the following words, “on condition that the assignment pays over 25-100 on our claim:” Held, that the condition was void, and the release single and absolute; and ■ that it extinguished the debt.</p>

<p>IN ERROR.</p> <p>In an action against J. W., as surviving partner of T. F., to recover a debt which was con. traeted by T. F., trading as T. F.& Co., in 1833, it appeared that the plaintiff sued T. F. in 1834, and that T. F. confessed judgment for the amount of the debt, and that T. F. also gave his personal bond, with a warrant of attorney to confess judgment in another state; upon which judgment was entered. Held, that the action against J. W. was barred notwithstanding the act of the 6th of April, 1830.</p>

<p>This case came before the court upon a habeas corpus to the ■ keeper of the jail of Montgomery county, to bring up the body of Michael Schultz.</p> <p>By the return it appeared that the prisoner had been committed by virtue of a warrant of a justice of the peace of the county of Montgomery; of which the following is a copy.</p> <p>“ Montgomery county, ss.</p> <p>The commonwealth of Pennsylvania to the constable of Upper Providence, in the county of Montgomery, and to all other . constables and good people of said county, greeting.</p> <p>Whereas Francis Hobson, Daniel Schuerick, Abraham Breighler, Solomon Missimer, Isaac Shalcup, upon their solemn oaths; Frederick Bergstresser, John Longacre, Samuel Custer, Daniel Stall, Ephraim Crater, Samuel Hallman, and Amos Thomas, upon their solemn affirmations, twelve good and lawful men of the county aforesaid, upon their oaths and affirmations duly administered according to law by me, the subscriber, one of the justices of the peace in and for the county of Montgomery aforesaid, acting for the coroner of said county of Montgomery, as an inquest upon the view of the body of Samuel Speece, a deaf and dumb man, about thirty-seven years of age, who was run over by the burden cars on the Philadelphia and Reading rail-road, on the morning of the 12lh of January, 3841, in the township of Limerick, in the county aforesaid, by one Schultz, while in the guidance of and conducted by the said Schultz—the aforesaid inquest as aforesaid by me had and taken, the sixteenth day of January, 1841, at the house of Samuel Speece, in Limerick township, and county aforesaid, adjourned to Hobson’s school-house in the aforesaid township, to the 18th inst, at one o’clock p. ¡vr., who upon their oaths and affirmations, and charged to inquire how, when and where the said Samuel Speece came to his death, and all other matters relating thereto, did report, that the said Samuel Speece was violently and negligently, while on the track of the aforesaid rail-road, run over on the morning of the twelfth of January, 1841, in the township aforesaid, by the aforesaid</p> <p>Schultz, as aforesaid, and then and there by the cause ■ aforesaid cut off his right arm above the joint at the shoulder, broke the shoulder-blade and collar-bone, beside many other mortal wounds, received then and there, and by the cause aforesaid to him the said Samuel Speece received, then and there languished, and languishing died on the night of-the fourteenth day of January, 1841, at about 10 of the clock p. m. by the wounds received then and there, and not otherwise; against the peace and dignity of the commonwealth. You and every of you are therefore hereby commanded to take the said Schultz, and convey him to the common jail of the county of Montgomery; and the keeper thereof is hereby commanded upon sight hereof to receive the said Schultz, conductor as aforesaid, into custody, and him safely keep until he be delivered by due course of law. Witness the said John Dismant, at Upper Providence township, in the aforesaid county, the nineteenth' day of January, one thousand eight hundred and forty-one.</p> <p>(Signed) John Dismant.”</p>

Sc.ott against Henry Hugg, to September Term, 1839. The plaintiff filed a copy of a promissory note, made by the defendant in favour of the plaintiff, dated the 14th of February, 1839, at six months, for $152 75.

<p>CASE STATED.</p> <p>In 1828 T. C. granted a lot of ground to J. R. in fee, reserving an annual ground-rent to himself, his heirs and assigns. In April, 1829, he made his will, whereby he devised the said ground-rent to his wife for life, with remainder to or in trust for his five children in different shares and proportions, giving one-eighth part to his son, T. C., Jr. In November, 1829, the lot of ground, with an unfinished building upon it, was sold at. sheriff’s sale, subject to the ground-rent, and was purchased for T. C. by his son T.C., Jr. On the 19th of March, 1830, T. C. died, without any deed having been made to him by the sheriff. Held, that the ground-rent did not merge in the equitable estate acquired by T. C. at the sheriff’s sale.</p>

<p>IN' ERROR.</p> <p>1. The doctrine in-this state is, that mere unaided comparison-of hands is not in general admissible. But after evidence has been given in support of a writing, it may be corroborated by-comparing the -writing .in-question with a .writing, -concerning which there is no doubt.</p> <p>2. To authorise the admission-of the writing offered as attest or standard, nothing short of evidence by a person who saw the party write the paper, or of an admission by such party of its being .genuine, or evidence of equal authority, is sufficient.</p>

<p>in ERROR.</p> <p>1. The expiration of a statute by its own limitation, ipstrfacto ievives-a. statute which had been repealed and supplied by it.</p> <p>2. The act of the 19th of March, 1810, forbidding unincorporated banks to issue their notes, discount paper, &c., which was repealed by the act of the 21st of March, 1814, revived, on the expiration of the period of eleven years, to which the last mentioned act was limited.</p>

1 Assumpsit by Joseph Garside against Charles Cumming, upon a promissory note, made by the defendant, dated the 13th of February, 1837, at six months, to the order of Garside & Mecutcheon, for $354, and endorsed by them. The plaintiff was one of the firm of Garside & Mecutcheon. On the trial before Jones, J., on the 5th of February, 1840, the endorsement was proved to be in the handwriting of the plaintiff.

<p>IN ERROR.</p> <p>1. In an action by a lessee against the lessor to recover for money expended In repairs, it Was held that parol evidence was admissible to prove that after the lease had been executed and taken away, the lessor returned, to have it attested; that the lessee then mentioned that certain necessary repairs had been omitted, and that the lessor then agreed that it should be done by the lessee, at his (the lessor’s) expense.</p> <p>2. A lessee may maintain an action against his lessor to recover for money expended in repairs, under an agreement that the lessor would repay it; although the lessee had previously paid rent to the lessor without claiming a deduction for the repairs.</p>

phia, in which an action on the case was brought by the defendants in error against the plaintiff in error, and a case was stated, which was to be considered in the nature of a special verdict, as follows. “ This is an action on the case brought by the plaintiff against the defendants, for obstructing an alley or right of way' and watercourse, for the space of fourteen feet, which alley is part of the southern boundary of the plaintiff’s premises.

<p>1. It is an undoubted rule that for a loss arising from mutual negligence, neither’party can recover in a court of common law.</p> <p>2. And this rule governs the ease of shippers of goods on board of vessels which have come into collision, to the injury of the goods, as well as the owners of the vessels themselves.</p> <p>3. An action cannot be maintained, therefore, by the owner of goods on board of a vessel, against the owners of another vessel to recover damages for an injury done to the goods by the collision of the two vessels; if there have been mutual negligence in the conduct of those who have had the vessels in charge.</p> <p>4. In an action to recover damages for injury done to goods on board of a vessel while she was lying at anchor in the river Delaware, by a vessel coming up the river in the night time, it was held that if the anchored vessel was moored in the channel without a visible light burning at the time, or if her watch was not on deck, and did not do what was customary for the purpose of avoiding a collision, there was such negligence as to bar the action, though there might have been negligence on the other side; and that the burthen of proof lay upon the plaintiff.</p>

This case came before the court on a writ of error to the District Court for the City and County of Philadelphia. In the court below, Charles J. Knight brought an action of covenant against The Southwark Fire Insurance Company, of the county of Philadelphia, upon a policy of Insurance executed by the defendants.

<p>IN ERROR.</p> <p>1. The presumption of the law is,, that a contract is intended to be peribrmed in the place or country in which it i's made, if there be not an express agreement or necessary implication that it is to be performed elsewhere; and whenever such understanding is not apparent, the law of the contract is the law of the place where it was made.</p> <p>2. On a contract made in one state of the union for the payment of money, the debtor is not bound to go to another state to tender the money to the creditor.</p> <p>3. Where A. residing in Pennsylvania, had obtained a judgment against B., wim resided in New Jersey, and the defendant, Who also resided in New Jersey, made a verbal promise to pay the money for B, if A. would wait a certain time: it was heldt that this promise was void under the statute of frauds of New Jersey, and that an action could not be maintained upon it against the defendant in the courts of Pennsylvania,</p>

<p>IN ERROR.</p> <p>In an action by the owner of a canal boat against the steersman, whom he had employed to take her down the river, to recover damages for the loss of the boat, which was carried over a dam, in consequence of the negligence of the defendant, it was held, that it was not a sufficient answer to the charge of negligence that the boat was not properly provided with poles and hands; if the vessel was improperly navigated too near the dam.</p>

<p>JN ERROR.</p> <p>1. Third persons dealing with a party against whom a judgment has been obtained, are not bound to look beyond the entry of the judgment as docketted by the prothonotary. If the prothonotary have made a mistake in setting down the amount of damages •assessed against a defendant, the plaintiff is nevertheless bound as respects such third persons; although the amount of damages is correctly stated in a- paper filed in the .office. .</p> <p>2. In assumpsit in the District Court on two promissory notes, the defendant had given •bail 'in $9000. Copies of the notes were filed according to .the act of assembly, and judgment was obtained for want of an affidavit of defence. Damages were then assessed by the prothonotary, according to a statement and calculation on a paper filed, at $4669 29; but by mistake the damages were.entered on the docket at only:$1331 .50. .Security for a stay of execution was then given -.by the same persons -who were bail io the action, in the sum of $2700, with condition for payment of the sum of $1331 50.: Held, (l)'That the judgment, so far as respected-the sureties in the recognisance for the •stay of execution, was to be taken as it was entered on the docket; .and therefore that the recognisance was valid and binding upon them; (2d) That .they were discharged from their liability as bail to the action, by the recognisance for stay .of execution.</p> <p>3. The.eourt in .which a judgment is entered, may allow an amendmentof the record, aB between the parties themselves, and even after a writ of error; .but this .cannot he done so as to affect the rights of a subsequent judgment creditor, mortgagee or purchaser; nor against bail or sureties for stay of execution.</p> <p>4. • A writ of error lies from this court to the judgment of a lower court upon .an issue of ml tiel record.</p> <p>5. When a judgment in such case is removed by writ of error, the practice has been for the record to be certified by the court below without a bill of exceptions, or making the record brought in for inspection a formal part of the proceedings.</p> <p>6. This practice however is inconvenient; and it seems that the record on which issue has been joined, ought to be attached to the record returned, either by means .of a bill of exceptions or certificate from thelcourt below,.or otherwise, so as to make it part.of the record returned.</p>

It appeared by the return that a petition for the appointment of viewers of this road was presented to the court on the 5th of February, 1839, and that six persons were appointed for the purpose. No minute of the proceedings was made, and when the clerk of the court was called upon to make out the order, he was unable to find the petition.

<p>IN' error.</p> <p>Although a mortgage given to indemnify a surety may not have been discharged by a sheriff’s sale made prior to the act of 1830, under a junior incumbrance, yet if the mortgage was absolute upon the face, and contained no notice of its having been given for such purpose, it was discharged by such sale.</p>

B. Roatch against John Frost, as special bail of or surety for one C. K. Frost. In the original suit before the alderman which was brought by Wm.

The facts were as follows. A bridge was erected over Smithfield creek, where the public road leading from Easton to Milford crosses the same, by the commissioners of Northampton county, in pursuance of the order and decree of the Court of Quarter Sessions of that county, made at April sessions 1795; and was kept in repair by that county, up to the time of the erection of Monroe county, (in the year 1836), and by Monroe county up to the 8th of January, 1841.

This was an appeal from a decree of the Orphans’ Court for the County of Philadelphia, in the matter of the settlement of the accounts of the administrators of the goods, &c., of Daniel King, late of the city of Philadelphia, deceased. The only item in these accounts which formed the subject of controversy, was the following. “ 1836, December.

This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case brought by William Pleasants against the President, Directors and Company of the Commercial Bank of Cincinnati, to recover the sum of f10,000, which had been offered by the defendants as a reward for the recovery of a package containing f100,000, belonging to the defendants, and supposed to be lost.

This was a suit in equity, instituted by John Vaughan, Robert Porter, James Dundas, Henry Nixon and Benjamin Kugler, as managers of “ The North American Land Company,” against John M. Barclay.

<p>APPEAL.</p> <p>1. Where notice of the filing of an auditor’s, report is not required by the rules of the Orphans’’ Court, it is not a sufficient cause of exception in this court that the report was filed without notice to, or knowledge by the appellant, and while the appellant was confined to her bed by serious sickness.</p> <p>2. Where it appeared that a minor son of an intestate had worked as an apprentice for , his mother, who was administratrix to the estate, and who carried on the business after the death of the intestate, it was held that she could not deduct from his share of the balance of the administration account in her hands, payments which she had made to or for him during the time that he had so worked for her, and which did not exceed the reasonable wages of the business.</p> <p>3. An auditor appointed to distribute among the next of kin the balance in the hands of . the administrator, has no jurisdiction of an adversary claim of a creditor of the estate.</p> <p>4. An administratrix held not to be entitled to charge counsel fees to the fund, where she had made an unjust and vexatious defence to the claim- of the next, of kin.</p>

The action in the court below was a scire facias brought by Henry Grew, assignee of Samuel Webb, against Henry Smith and James M. Cooper, with notice to terre-tenants, upon a mortgage dated the 18th of August, 1836, executed by Smith and Cooper to Webb, to secure payment of a bond of the same date, with condition for the payment of the sum of $4000 in one year, with interest.

Morris against Daniel Fitler, Esq., sheriff of the city and county of Philadelphia, and Robert Miller. The plaintiff declared in trover for certain shoes, hats, and other merchandise, of the value of $500. The defendants pleaded not guilty; upon which issue the cause came on for trial before Stroud, J., on the 5th of November.

In this case, which was a quo warranto to Thomas Sparks, Hugh O’Donnel, and D. Henry Flickwir, to show by what authority they claimed to exercise the office of directors of the Southwark Bank, Mr. F. W. Hubbell applied to the court to fix a special day for the argument of a demurrer to the plea of two of the defendants, Sparks and O’Donnel. He said that Flickwir, the other defendant, had disclaimed, and a judgment of ouster had been given against him.

<p>in error.</p> <p>The defendants were common carriers of goods between New York and Philadelphia, and had signed a receipt for certain goods as received of A., which they promised to deliver to his order. In trover by the indorsees of this paper, who had made advances on the goods, it was held, that the defendants might prove that A. had no title to the goods; that they had been fraudulently obtained by him from the true owner; and that upon demand made, they had delivered them up to the latter.</p>

<p>IN ERROR.</p> <p>In an action in the District Court by the payee against the maker of a promissory note, it was held, that an affidavit of defence in the same case made by the defendant under the act of 1835, in which he admitted the making of the note, might be read in evidence by the plaintiff as an admission of the fact of mailing the note.</p>

<p>IN ERROR.</p> <p>The plaintiff, who was the owner of a canal boat, received and gave a receipt for certain casks of nails, in good order, &e., which he agreed to deliver (the dangers of the navigation excepted) in the like good order and condition to W. L., No. 17 Walnut st., Philadelphia, he paying freight for the same at a certain rate. On the voyage to Philadelphia, the boat struck against a stone in the bottom of the canal, by which a hole was knocked in her bottom, and the nails became wet and damaged. On her arrival in Philadelphia, the captain of the boat delivered the nails at the wharf of the defendants, who were forwarding and commission merchants, with instructions not to.deliver them until the freight was paid. The defendants however deliveredthe nails to W. L. without receiving the freight. In trover for the nails, it was held, (1) That the defendants had a right to show that in consequence of the unskilfulness or negligence of the persons eipployed in the management of the boat, the plaintiff was not entitled to recover the stipulated freight; (2) That the carrier was not bound to show that his boat was watertight and sound at the beginning of the trip; (3) That the. delivery on the wharf of the defendants was not in this case a delivery to W. L.; (4) That it was a question of fact for the jury, whether the injury to the nails was occasioned by the negligence or fault of the persons employed on the boat, or came within the exception of the dangers of the navigation. (5) That the captain and steersman of the boat were not competent witnesses for the plaintiff without a release. '</p>

<p>IN ERROR.</p> <p>The defendant had endorsed a note for the accommodation of a prior endorser. When the note became due, A., the holder, called upon the prior endorser, who said he was unable to pay, and ashed for time, and offered to give his note for the interest which would accrue upon the enlargement of time. The note was received by A. without application to the defendant; who however afterwards promised to pay the amount to the plaintiff, to whom A. had endorsed the note after it had become due. Held, (1) that the defendant was discharged by the conduct of the plaintiff; (2), that the promise to pay was without consideration, and not binding upon the defendant; (3), that the plaintiff could not maintain an action in his own name upon such new promise.</p>

<p>in error.</p> <p>1. In replevin by a sub-lessee, for goods taken by tbe paramount landlord, on a distress for rent, on the plea of no rent in arrear, a receipt for rent given by the immediate lessee to the plaintiff, is not admissible on the part of the plaintiff.</p> <p>2. In replevin by a sub-lessee for goods taken by the paramount landlord, on a distress for rent, on the plea of no rent in arrear, where it appears that the defendant had previously distrained the goods of the mesne tenant for rent arrere, and sold the same, it • lies upon the defendant to show that the distress first taken was insufficient.</p> <p>3. It seems that the act of 13th of March, 1772, which says that the landlord shall or may sell the goods distrained, is imperative, and makes it the duty of the landlord to sell.</p>

<p>IN ERROR.</p> <p>A judgment was obtained in the District Court in 1837, by A. against B. and C. on three promissory notes given by B. and C. to A. Afterwards A. by writing filed assigned part of the judgment to K. and F., and the balance to D, ,H. A scire facias was then issued on this judgment in the name of A. to the use óf D. FI., to which the defendants filed an affidavit of defence, setting forth, (1st) That they had brought a suit against If. and F. in 1837, which was arbitrated, and that If. and F. had set off two of the notes upon which the original suit was obtained; that the arbitrators had allowed the set-off and made an award accordingly; from which they (the deponents) had appealed. (2d) That a foreign attachment had been commenced against the deponents by K. and F. upon the judgment in this case, or on the three notes upon which judgment was obtained ; which attachment was still pending and undetermined. (3d) That the said D. H. was indebted to the defendants in a larger sum than the balance of the judgment, viz. in the sum of $900, being the amount of a draft in favour of the defendants accepted by him for avaluable consideration; which they claimed to setoff; and that If. and F. were indebted to the deponents in a sum fully equal to that part of the judgment assigned to them, viz. the amount of their acceptance of the deponent’s draft at 60 days, for $303, dated, &c., which also they claimed to set off.: Held, (1) That the deponents could not avail themselves in this action of the award of arbitrators appealed from, or of the alleged foreign attachment as a defence. (2) That the alleged claim of set-off off the two acceptances of K. and F. and D. H. was' admissible as a defence; and therefore that the court below erred in giving judgment for want of a sufficient affidavit of defence.</p>

<p>MANDAMUS.</p> <p>The court refused a mandamus to the County Commissioners to file in their office a copy of the affirmation taken by a person elected to the office of Assessor of a Ward; the Commissioners having returned, that in consequence of the relator not having filed the copy of the affirmation within twenty days after his election, they had appointed another person to fill the office under the 87th and 88th sections of the act of 15th April, 1834.</p>

<p>IN ERROR.</p> <p>1. Under the act of 1806, an amendment may be made of a declaration on a trial, even after counsel have summed up.</p> <p>2. Where the goods of an assured were levied upon by the sheriff by virtue of an execution against him; and the sheriff took actual possession of the goods, and left them in the store of the assured, the doors of which he fastened, and the windows of which he nailed up; and the sheriff werft out of town and took the key of the store with him ; and during his absence a fire took place, which destroyed the store with its contents : it was held, that the assured was nevertheless entitled to recover.</p>

James Kerr brought an action on the case against Peter Marseilles and James S. Martin, partners under the firm of Marseilles & Martin, and declared in assumpsit for the use and occupation of a certain warehouse in the city of Philadelphia.

Eagle and William Plessin, trading under the firm of Eagle & Co., against John White, Jesse White, and George Emerick, trading as J. &. J. White & Co. The action was against the defendants as common carriers, for not delivering a box of merchandise, valued at $417, which the defendants for a certain freight undertook to carry from the city of Philadelphia to Columbia, in Lancaster county.

<p>IN EQUITY.</p> <p>The bill set forth that J. E. W. being in want of money, and Mrs. M., his mother-in-law being seized of certain real estate, lie applied to the Philadelphia Savings Institution for a loan of money; and the complainant was induced, by motives of friendship, to take a conveyance of a certain part of her real estate for the purpose of immediately executing a mortgage of the same as a security for the loan: That the loan was accordingly made to J. E. W., who gave his notes to the Savings Institution for the amount, and the complainant executed his bond and a mortgage of the premises, and delivered the deed ofthe premises to Mrs. M., with a request to her to have it recorded: That when the notes of J. E. W. became due, they were renewed by'the Savings Institution without the knowledgeor consent ofthe complainant, and were a second time renewed in like manner; that J. E. W. became insolvent, and has since so remained: That a scire facias on the mortgage was issued by the Savings Institution; but the year not having expired, it was agreed between the counsel for the Savings Institution and the counsel for the complainant, that an action should be entered in the District Court for the City and County of Philadelphia, on the bond, and that judgment should be confessed; but the" bill averred that the judgment was confessed without his (the complainant’s) knowledge or consent, and that at the time of the confession ofthe judgment, both the complainant and his counsel, were ignorant that there was a defence arising from the renewal of the notes of J. E. YV.: The bill further stated, that a sheriff’s sale of the mortgaged premises had been attempted by virtue of an execution upon the said judgment; and that it was then discovered that the deed from Mrs. M. to the complainant had not been recorded: That he had applied to her for the deed, but she had refused to deliver it up, and had made defence to another scire facias, which had issued on the mortgage; and that the Savings Institution had applied to the District Court to set aside the levy on the mortgaged premises, with the declared intention of levying on the property ofthe complainant. The bill prayed a discovery from Mrs. M., the Savings Institution, their assignees, certain creditors who had issued attachments in execution against the complainant upon judgments against the complainant, &e.; an injunction against the Savings Institution and their assignees against proceeding upon the judgment against any other than the mortgaged premises, and against Mrs. M. against conveying or incumbering the mortgaged premises; and for general relief: Held that this court had not jurisdiction to grant the injunction or relief prayed for, either under the act of 16th June, 1836, or the act of 13th June, 1840.</p>

<p>IN EQUITY.</p> <p>1. One judge of this court has no power to order an injunction in any instance. It can only be done by the court while sitting in bank, and then after notice of the motion.</p> <p>2. An injunction to stay proceedings upon an execution issued upon a judgment in the District Court, refused; there being no fraud, accident or mistake alleged in the bill.</p>

<p>IN error.</p> <p>1. If the declaration contain several counts, and there is evidence to support any one count, this court will not reverse, if the count on which judgment is rendered is good.</p> <p>2. Although a declaration in assumpsit should omit to aver that the promise was made to the plaintiff, yet it may be good after verdict.</p>