been decided, as I conceive, by this court, in the case of Morrow
v. Brenizer, 2 Rawlc, 185, where the testator had directed his
real estate, as in this case, to be sold by his executors, and the
moneys arising therefrom to be equally divided among his chil-
dren, but before a sale was effected by the executors, a judicial
184 SUPREME COURT [Philadelphia,
[Wintercast and others v. Smith.]
sale of all the right and interest of one of the children in the
estate was made by the sheriff under a judgment against him ;
and held that nothing passed by it to the purchaser. This goes
to show that the legatee against whom the judgment and execu-
tidn were had and issued, had no right of property in the land
sold thereon, and which was directed by the will to be sold by
the executors for his benefit and that of others. That his claim
r^lS^T * un der the will was to money which was to be raised
-" out of the land by a sale of it : that it was in the
nature of a chose in action and therefore not the subject of an
execution. Neither could his proportion of the money pro-
duced from a sale of the land afterwards made by the executors
under the will have been levied on as his property before it was
paid over to him, because admitting that money may be taken
in execution, (see the King v. Webb, 2 Show, 166, and Francis
v. Nash, Ca. Temp. Hardw, 53,) still it could not be considered
his property for that purpose until received. Upon this princi-
ple, it has, as I take it, ever been held, that a sheriff who has
in his hands two writs of fieri facias, one against and the other
in favour of the same person, and collects the money upon the
fieri facias in his favour, but can find nothing upon which to
levy the amount of the other against him, cannot levy it out of
money which he has collected, because it is not considered the
specific property of the party plaintiff in the execution upon
which it was made, until it is paid over to him by the sheriff.
Armistead v. Philpot, Doug. 231 ; Turner i\ Fendall, 1 Cranch,
In every view which can be taken of the legacy in question,
it appears to me that it must be considered as a mere chose in
action, and as the husband has never made any claim to it, and
is now debarred from doing so by the divorce, which has dis-
solved the ties of matrimony between the defendant in error
and him, the judgment of the court below w r as right and is
Cited by Counsel, 3 Wh. 417 ; 5 Wh. 141 ; 8 W. 11, 412, 505 ; 10 W. 56 ;
3 W. & S. 230 ; e W. & S. 297 ; 1 Barr, 293 ; 2 Barr, 72 ; 4 Barr, 391 ; 7 Barr,
148; 10 Barr, 374; 4 H. 392; 9 H. 249; 7 S. 354; 15 S. 398; 13 W. N. C.
Cited by the Court, and approved, 6 W. 132.
15, 1833.] OF PENNSYLVANIA. 185
[PHILADELPHIA, FEBRUARY 15, 1833.]
Sylvester against Girard.
By the act of March 22d, 1817, entitled "An act to prevent the making,
issuing, receiving, and circulating certain descriptions of notes and tickets in
the nature of bank notes, and for other purposes," a note in the nature of a
bank note issued by an individual, is valid so far as to compel the drawer to
discharge it, and is consequently the subject of property in the holder, and if
stolen from him, it is the subject of larceny.
In an action of trover by the holder of such a note against the drawer, who
had got possession of it and refused to return it on the ground that it did
not belong to the holder, it is not necessary for the defendant to give notice
to the plaintiff, before the trial, that he must prove his property in the note.
The plea of not guilty in trover, requires the plaintiff fully to make out his
If such a note has been delivered to the plaintiff for the mere purpose of
getting it exchanged, no property passes to him, and the circumstances of
his being a^ creditor of the person delivering it, if no receipt or other ac-
knowledgment of credit on the old debt be given at the time, does not alter
Quere, whether a promissory note given for a consideration partly legal and
partly illegal, is valid for so much as is legal?
WRIT of error to the District Court for the city and county
of Philadelphia, in an action of trover brought by Nathaniel
Sylvester *against Stephen Girard for a promissory note <-** -,
in the following form :
g "1009 C. No. 353. No. 353. 1000. K
g I promise to pay to M. Gebler, or bearer, One c
O i Thousand Dollars, on demand, at my Banking- , g .
I g I house in South Third Street. Philadelphia, May ' & '
i 3,1827. a
OQ STEPHN. GIRARD."
" J ROBERTS, Cashier."
[Indorsed] " M. Gebler."
The defendant pleaded not guilty.
On the trial of the cause in the District Court, it appeared,
that one William Clew, a porter in the service of the Bank of
the United States had stolen the note in question from that in-
stitution. Being at the time indebted to the plaintiff, who kept
a lottery office, in the sum of nine hundred and twenty-eight
dollars and sixty-four cents, on account of the purchase from
time to time, of various lottery tickets of some of which, the
186 SUPREME COURT [PMladdphw,
[Sylvester r. Girard.]
sale in this state was prohibited by law, and for the whole of
which the plaintiff then held his note payable on demand, he
offered to him the above-mentioned note of Stephen Girard in
satisfaction of the debt, and requested his check for the balance.
The plaintiff took Girard's note, but alleging that it would dis-
order his bank account to comply with Clew's request, declined
giving his own check for the balance, saying, he would get
Girard's note changed and then pay him the balance. Clew
left the note with the plaintiff and did not take up his own note,
nor did he receive any credit on it.
In the meantime, the Bank of the United States, having dis-
covered the loss of the note, sent notices to the different city
banks, and requested them to stop it, if it should be pre-
Sylvester called at the Mechanics' Bank, which was the
nearest to his own office, for the purpose of getting Girard's note
changed. He was there informed of the notice received from
the Bank of the United States and that the Mechanics' Bank
could not receive the note. On being asked from whom he had
received it, he declined disclosing the name of the person, but
said he was a responsible man.
On his return to his office, Clew, who had remained there,
told him he had found this note, and another of Girard's notes
of like amount.
Sylvester then called at the Bank of the United States, and
afterwards on Girard, without obtaining payment of the note.
On the next day he put it into the hands of a notary public,
who presented it to Girard, and demanded payment. This was
refused, and the note itself, which had been delivered to him by
the notary, for examination, was detained, whereupon the notary
made a protest, that at the request of N. Sylvester, he had pre-
sented the original promissory note "at the banking-house of
f*1 871 Stephen Girard, Esq., *in South Third street, unto Mr.
J Girard the drawer, and Mr. Roberts, his cashier, they
both being together, and demanding payment of the same, I re-
ceived for answer, that he refuses to pay, and retains the said
note, at the request of the Bank of the United States : where-
fore, I, the said notary, was unable to obtain payment or a re-
turn of the said note." The notary, therefore protests, in the
usual form, against the drawer, and all others concerned, for all
damages, <fcc., for want of payment thereof, as well as for the
detention of the same.
On the trial, an objection w r as made by the plaintiff's counsel
to the admission of evidence tending to impeach the title of the
plaintiff to the note. The judge admitted the evidence, and an
exception was taken to his opinion. Exception was also taken
Feb. 15, 1833.] OF PENNSYLVANIA. 187
[Sylvester v. Girard.]
to the whole of his charge to the jury, which the opinion given
by this court renders it unnecessary here to insert.
A verdict and judgment having been given for the defend-
ant, the present writ of error was taken out, and the following
specification of errors filed in this court :
1. The court erred in admitting evidence to show that the
Bank of the United States had lost the note in question, the
said note having been issued and received in violation of an act
of assembly, and for receiving which, the Bank of the United
States was subject to a penalty.
2. The court erred in the admission of evidence to show that
the consideration given by the plaintiff to Clew for the note for
which the action was brought, consisted, as the defendant alleged,
of a debt due for lottery tickets; no notice having been given
to the plaintiff to prove the consideration.
3. The charge of the court was erroneous in this particular,
that the judge charged the jury, that it was competent to the
defendant to show for what consideration a certain promissory
note, drawn by Clew, and held by the plaintiff, had been given ;
and that if illegal lottery tickets, that is, such as could not by
law be vended in Pennsylvania, formed any part of the consid-
eration of that note, the whole was void.
In support of the first specification of error, Randall and Scot 1 .
contended that by the act of the 22d of March, 1817, entitled,
" an act to prevent the making, issuing, receiving, and circulat-
ing, certain descriptions of notes and tickets, in the nature of
bank notes, and for other purposes," Purd. Dig. 96-97, the
Bank of the United States could not be the lawful proprietors
of the note in question, it having been issued by Girard, in vio
lation of the provisions of that act.
As to the second specification of error, they alleged that the
plaintiff had a right to notice from the defendant, that he would
be required to prove the consideration given for the note.
Property in mercantile paper of this description, passes by
delivery. A note payable to bearer, is payable to him in the
quality of bearer; he is not *required, prima facie, to go r*ioo-
further than to show his possession. If the defendant L
be entitled to enter into an. inquiry as to the plaintiff's right of
possession, it can onlv be done on reasonable notice to him. If
the rule were otherwise, he would be taken by surprise. Chitty
on Bills, 148, 400, 411; 4 Taunt, 114; Latimer r. Hodgdon, 5
Serg. & Rawle, 514; Grant v. Vaughan, 3 Burr. 1516; 2 Camp.
5 ; Lowndes et al. assignees of Lees v. Anderson et al., 1 3 East.
In arguing the third specification of error, they contended,
VOL. rv. 14 209
188 SUPREME COURT [Philadelphia,
[Sylvester v. Girard.]
that if the consideration of the note given by Clew to the plain-
tiff was good in any part, the note was not avoided by -reason
of its embracing a defective consideration also. The plaintiff's
property in Girard's note was in no degree affected by the
soundness or unsoundness of Clew's note to him. The plain-
tiff was entitled to the possession of Girard's note, stopped and
detained from him against his consent by the defendant, which
in law amounted to a conversion, or to damages for the deten-
tion. Miller v. Race, 1 Burr. 452 ; Faikney v. Reynous and
another, 4 Burr. 2069 ; Petrie et at. exs. of Keeble v. Haimay,
3 D. & E. 418 ; Touteug and another v. Hubbard, 3 Bos. &
Pull. 295 ; Barjeau v. Walmsley, 2 Str. 1249.
Binney and Chauncey for the Bank of the United States (the
real defendants, Girard being ready to pay the amount of his
note to any person entitled to receive it) argued that the case
did not come within the act of March 22d, 1817, the second
section of which recognises the right of individuals established
for the purpose of banking, to issue such notes as that in ques-
tion. This section embraces the case of Mr. Girard, who, when
the act was passed had been for some time an established banker;
and the seventh section of the same act gave to the Bank of the
United States, which w r as the legal proprietor of the note, the
exclusive right to recover from the drawer. Hess v. Werks, 4
Serg. & Rawle, 356.
In answer to the second specification of error, they contended
that the plea of not guilty, the general issue in trover, puts the
plaintiff to the proof of everything necessary to make out his
title to the chattel which is the subject of the suit ; no notice
therefore is necessary. Tid. Pr. 702; Chitty PI. 89, 511 ; 2
Taunt. 2 ; 2 Esp. Ca. 611 ; 3 Stark. 1504; 11 Johns. R. 529 ;
13 Johns. R. 92 ; 14 Johns. R. 128.
With respect to the third error assigned, they said, they con-
sidered the charge of the court as misunderstood. It amounted
in substance to this, that if unlawful lottery tickets were to any
extent the consideration of Clew's note to Sylvester, the latter
must show from other sources than the note itself, that a part of
the consideration was lawful, although it was admitted that the
judge had expressed an opinion that the illegality of part of the
consideration contaminated the whole instrument. They re-
ferred to Yundt v. Roberts, 5 Serg. & Rawle, 139 ; Wheeler v.
Russell, 17 Mass. R. 258 ; 3 Taunt, 226 ; 3 Bar. & Aid. 181.
r*iQl They also contended, that Girard's note was *only de-
J livered by Clew to the plaintiff for the purpose of get-
ting it changed ; that no property in it passed to him, and that
therefore he could not maintain an action for it in his own name.
Feb. 15, 1833.] OF PENNSYLVANIA. 189
[Sylvester v. Girard.]
The opinion of the court was delivered by
HUSTON, J. By the second section of the act of 1817, this
note of Stephen Girard, admitting him to be within the prohib-
itory clause, which I do not admit, would have been illegal, and
no suit for the recovery on it could have been supported ; and
if so, this suit would be a useless contest about the right to that
which was worthless.
Admit, however, that generally no suit can be supported on
a note or writing, which the law forbids any person to make or
issue under a penalty, yet it was competent to the legislature
to enact otherwise, and expressly to declare, that although it
was forbidden to make, issue, or receive any such note, and a
penalty was inflicted on those who violated its provisions, yet
the note when issued and received, should be available to enable
the person who had received it, to sue for and recover the
amount due ou the face of the note, from the individual or bank
who made it, and by the 7th section this was done ; and this
section made the note valuable, the subject of a suit, and of
larceny, as if the act declaring such notes not the subject of a
suit, or of larceny was repealed.
The fallacy consists in arguing this case as if the seventh
section were not in existence; as if the law of this case de-
pended on the general law, or the thirteenth section of the
act of 1814 which are repealed, and were not to be decided by
the provisions expressly made to govern it.
These notes are then property, subjects of larceny, and being
so, are, when stolen, subject to all the incidents of other stolen
property ; that is, they can be recovered from the thief, or re-
ceiver of the theft, with knowledge of the theft, and of course,
payment may be stopped when demanded by the thief, or any
person acting as his agent, or who received it with notice that
the .note was stolen.
As to not having given notice to prove ownership, this objec-
tion is taken without due reflection. The form of action adopted
by the plaintiff made it necessary for him to prove his right to
the note ; to have given him notice to prove his right would be
not only idle, but absurd, and the more so, in this case, because
Mr. Girard, when the note was presented to him, told the plain-
tiff, " this note belongs to the Bank of the United States, it was
stolen from them, they have given me notice to stop the payment
of it ; I will not pay or return it to you because you are not the
owner." On this the plaintiff might still have sued for the
amount of the note, or might sue to recover the possession of
the note, and he chose the latter. The suit then was brought,
and the form of action selected to try who was the owner of the
189 SUPREME COURT [Philadelphia,
[Sylvester v. Girard.]
note. On this ground no usage, no precedent, is produced of
any such notice to a plaintiff in trover. Besides, the defendant
does not ask the plaintiff to prove anything. Under his plea
r*1QOl ^ e can ky *l aw defeat the plaintiff by showing title in
J himself, or a third person, and either will equally de-
feat the plaintiff's recovery. 3 Starkie, 1504 ; 14 Johns. 128 ;
11 Johns. 529.
When the holder of a note sues for the amount due on it, and
the defendant pleads that he did not assume to pay it, the plain-
tiff has no notice that his right to the note will be disputed ;
but when he presents a note to the maker who retains it, and
says, " I will retain it, because it is not your property, but that
of another person from whom it was stolen," and on this the
holder selects to try the very question whether he has a good
right to the note or not, he cannot be surprised on the above
ground, for he must be nonsuited unless he shows a right to the
possession of the note. The third exception is on a point which
did not arise in the cause. If the plaintiff had delivered to
Clew his note of nine hundred and twenty-eight dollars and
sixty-four cents on receiving this one thousand dollar note, or if
the plaintiff on receiving the note in question, had, according to
his statement of what was intended, entered a credit on that
note before he was informed of the theft, a question might have
arisen on which it seems different opinions have existed. But
nothing like this occurred. The plaintiff neither gave any pres-
ent consideration for the note, nor credit on any past debt ;
before either had occurred, he was told it was a stolen note. It
would then be a waste of time for this court to enter into the
discussion of whether a note was void in whole or in part, when
that note or its validity or invalidity can have no effect in
this cause, and could not have had any effect unless there was
some colour of proof that the nine hundred and twenty-eight
dollar note of Clew had been given up in consideration of the
note in question.
If Clew had proposed to, buy a horse, and the owner went to
get change for this one thousand dollar note, and had been told
it was stolen, and returned and kept his horse, how could he say
he had given a valuable consideration for the note, or any con-
sideration at all ?
It occurs too often in this state, that matters having but
little connection with the cause, and therefore not much attended
to by the judge, are made the subject of assignment of error
and reversal of the judgment, and this has often been found a
great evil. If, however, the matter has a bearing on the point
<;rying, it must be considered on error brought; but it would be
Feb. 15, 1833.] OF PENNSYLVANIA. 190
[Sylvester v. Girard.]
too much to reverse for what, on all that appears before us, has
no more connection with this case than any other case in court.
Cited by Counsel, 5 Wh. 368 ; 2 W. & S. 236 ; 3 Wr. 524 ; 18 S. 222 ; 7 W.
N. C. 493.
*[PHILADELPHIA, FEBRUARY 15, 1833.] [*191]
Case of the Germantown and Perkiomen Turnpike
A conditional report of viewers appointed to assess damages in a road case,
finding facts, but submitting to the court questions of law arising upon them,
; s bad.
CERTIORARI to the Court of Quarter Sessions of the County
A wide range of argument upon certain local acts of assem-
bly was taken by Chew for the Germantown and Perkiomen
Turnpike Road Company, and by Page for the commissioners
of the county of Philadelphia; but the opinion of the court
\ lelivered by the Chief Justice) being confined to a single point,
it becomes unnecessary to report the arguments.
PER CURIAM. The quarter sessions very properly quashed
the report, inasmuch as the viewers had not power to report
conditionally, or, as in the case of a special verdict, to reserve
the matters of law for the determination of the court. They
were bound to dispose, in the first instance, of all the matters
committed to them, whether constituted of law or of fact, sub-
ject however to review by the sessions. It would be improper
to anticipate a question which may arise hereafter, whether
the rights of the company have been assumed by the district,
or whether the corporate owner of a franchise, is a subject
for compensation under the general road law. That question
may come up on another report, and we restrict ourselves to
the ground on which the judgment of the court is clearly
Order of the Quarter Sessions affirmed.
* See 2 Serg. & Rawle, 277.
192 SUPREME COURT [Phttadefyhia,
[*192] ^PHILADELPHIA, FEBRUARY 15, 1833.]
Case of Spring Garden Street.
The Presidents of the Courts of Quarter Sessions are not required by the
act of the 24th of February, 1806, to reduce their opinions to writing, and file
the same of record.
The act of the 23d of April, 1829, directing that "Spring Garden Street, as
now laid down and confirmed by the Court of Quarter Sessions of the City
and County of Philadelphia, west of Tenth street, be continued of the same
width from Tenth to Sixth streets," does not lay out a new and independent
street, but is merely an amendment of the plan of the District of Spring
Garden, as authorized by the act of incorporation, and confirmed by the court,
and leaves the act of incorporation in force as regards the rights and remedies
of the parties.
It is no objection to the report of viewers appointed to assess damages for
opening a street, that they conversed with the owners of property adjoining,
in the absence of the parties interested.
This court will not, on a certiorari to the Quarter Sessions to remove the
proceedings in a road case, enter into the merits or determine facts.
THIS was a certiorari to the Court of Quarter Sessions of
Philadelphia county, to bring up the proceedings of the court
and jury assessing damages on opening Spring Garden street,
in the District of Spring Garden, from Tenth to Sixth street.
A rule to show cause why a mandamus should not issue to
compel the president judge of the Court of Quarter Sessions to
file his opinion of record, that the same might be brought into
review before this court, was moved for on behalf of A. L.
Biddle and Chauncey endeavoured to sustain the rule, under
the act of the 24th of February, 1806, section twenty-fifth, re-
quiring the " presidents of the Courts of Common Pleas," &c.,
to reduce their opinions to writing and file the same of record.
It was argued that as the same judge by the constitution of the
state presided in both the Common Pleas and Quarter Sessions,
the law was obligatory on him, when sitting in either court.
Price, for the District of Spring Garden, was stopped by the
BY THE COURT. We find this law productive of much in-
convenience in practice, and as the benefits expected from it have
not been realized, we are not inclined to extend its operation by
a liberal construction. It does not in its terms embrace the
Feb. 15, 1833.] OF PENNSYLVANIA. 192
[Case of Spring Garden street.]
president of the Court of Quarter Sessions, and we are not dis-
posed to carry it beyond its terms. The rule is denied.
The first exception taken to the proceedings below was, that
the court had no jurisdiction.
Spring Garden street from Tenth to Sixth street, was laid
down by authority of the third section of the act of 23d of
April, 1 829, in these terms : " That Spring Garden street, as
now laid down, and confirmed by the Court of Quarter Sessions
of the city and county *of Philadelphia, west of Tenth r*iqo-|
street, be continued of the same width from Tenth to "-
Biddlc and Chaunccy contended, that this act was unconstitu-
tional and void, because it took away the property of the citizen,
without providing compensation therefor.
Price argued, that it had relation to the plan of the district
of Spring Garden, authorized by the act of incorporation : that
it was to restore to the plan, a street that had been obliterated
by an order of court; and that the ordinary proceedings for the
assessment of damages to owners whose property was to be taken
for streets, were to be had in the case of this street, as if it had
been laid down on the plan by the surveyor of the district. It