was to be construed according to its purpose, and as a part of a
system of laws for laying out the town plot of Spring Garden
The court ordered the argument to proceed as to the remain
ing exceptions, to wit :
That the viewers conversed with owners of property adjoining,
and others interested, in the absence of the parties and their
counsel, and were influenced by such conversations : That they
acted under the impression that Mr. Pennock had no title to the
said land, and gave him no damages; and the court below erred
in the same respect, and confirmed the report.
Biddle and Chauncey for the appellant. The jury were guilty
of undue practices, within the ninth rule of the court, in receiv
ing improper evidence, from interested sources, not under oath,
and in the absence of Mr. Pennock. The jury is required to be
under oath, and the testimony should be under oath. The act
of 1705 does not require referees to be sworn, yet it is the
practice, and they must hear testimony in the presence of the
parties. The province of the jury is judicial; there are parties,
and large amounts of property at stake. Is it to act without
principle or restriction? No tribunal of justice, can be safely
allowed to seek information at large ; and it is a fundamental
principle of administering justice in every forum, to hear evi-
dence in the presence of the parties. An undue practice, is any
215
193 SUPREME COUET [Philadelphia,
[Case of Spring Garden street.]
departure from correct practice ; and what is not right should be
corrected by the court. There was error also in law; the title
of Mr. Pennock was mistaken. This property was not dedicated
to public use by the deed of partition. If there was a dedica-
tion for a canal, it was conditional that the canal should come
there, which it never did.
T. Sergeant, for the county commissioners, and J. R. Inger-
sott, for the owners on the street, This court will not go into
general matters heard before the jury. The superintendence of
this court is to be exercised only in two cases, " fraud, or undue
practice," which imply something morally wrong, which has
not been imputed to this jury. Case of the Road from Penu's
r*i CUT Grove to the Concord Road, 4 Yeates, *372. Case of
*J the Schuylkill Falls Road, 2 Binn. 250. When the
court have departed from this rule, it has been to support the
record.
The persons appointed are not strictly a jury, but viewers.
They are at liberty honestly to investigate all matters, and to
derive their information from what sources they please to inform
their judgment. Opinions are almost entirely speculative, as to
the value of property, and the advantages or disadvantages to
result from opening the street. The jury are not sworn to find
according to the evidence, as common juries are; they have no
judge or sheriff to decide upon the legality of the evidence
offered ; they are not even authorized to administer an oath, and
may, and do, hear the statements of the parties themselves.
They are not kept together as other juries ; they go out to view
the ground, and adjourn from time to time, according to con-
venience. If error or injustice takes place, it is subject to
correction by the court below.
If Mr. Pennock had no title he cannot be heard. He threw
this ground out for a street and canal by the deed of partition,
and he was bound by this act, and could not resume what he had
so dedicated. If two or more lay out a street, neither can
afterwards shut it up, or claim damages for it from the public.
PER CURIAM. The Quarter Sessions had undoubted jurisdic-
tion. The object of the legislature was to amend the plan as
confirmed, leaving the existing law in force as regards the rights
and remedies of the parties ; not to lay out a new and indepen-
dent street. As to the objection that the viewers conversed
with the owners of property adjoining, in the absence of the
parties interested, we see nothing wrong in that. An inquest of
this sort is restrained to no peculiar species of evidence, and may
resort to any source of information which the members of it
216
Feb. 15, 1833.] OF PENNSYLVANIA. 194
[Case of Spring Garden street.]
may think proper even the evidence of their senses. The sub-
ject of the remaining exception, is not properly within our cog-
nizance. We are restrained not only by the decision in the
Schuylkill Falls Road, 2 Bumey,250, and the Road from Penn's
Grove to^ Concord, 4 Yeates, 372, but by our own rule, from
entering, in cases of this kind, into the merits, or determining
facts on depositions ; and whatever we may think of the justice
of the report, it can have no influence on our judgment as to the
regularity of the proceedings.
Proceedings affirmed.
Cited by Counsel, 2 Wh. 394 ; 3 W. 293 ; 5 Barr, 206 ; 2 C. 239 ; 4 S. 355 ;
2 W. N. C. 662.
Cited by the Court, 6 Wh. 41 ; 1 W. & S. 263 ; 1 H. 385.
^PHILADELPHIA, FEBRUARY 15, 1833.] [*195]
Newbold against Wright and Shelton.*
IN ERROR.
The withdrawal of material facts from the jury is error.
A factor cannot pledge the goods of his principal for his own debt.
A usage cannot be set up in opposition to a general rule of law ; therefore,
a usage for factors to pledge the goods of their principals, is bad.
A supercargo, to whom various shipments have been consigned by the same
vessel, with instructions from one of the shippers to obtain an advance on his
goods, cannot make a general deposit of the whole cargo, to secure a general
advance, so as to bind his principals. It is his duty to keep the different in-
terests separate
Where a general advance is made to a factor on a general deposit of goods
owned by various persons, it must be borne rateably by all.
THIS was a writ of error to the District Court for the city
and county of Philadelphia. It was an action of assumpsit
brought by the plaintiff in error to recover the proceeds of his
goods, sold by the defendants.
On the trial of the cause, the facts which appeared in evi-
dence were substantially as follows :
In April, 1823, the plaintiff, by his agents Thomas & Martin,
made a shipment of nine hundred and sixty pieces of blue
Mo reas, valued at two thousand seven hundred and nine dollars
and twenty-four cents, to St. Jago de Cuba, by the schooner
Sally and Polly, consigned to Clayton Hollinshead, supercargo
on board, for sale and returns. In the letter of instructions,
* For the report of this case, the reporter is indebted to John L. Newbold,
Esq., who was of counsel in the cause.
217
195 SUPREME COURT [Philadelphia,
[Newbold v. Wright and Shelton.]
the supercargo was directed to sell the goods, if he could, but
if not, to obtain an advance of one-half or two-thirds of their
value in coifee. Various other shipments were made in the same
vessel, likewise consigned to Hollinshead, and part of the cargo
belonged to himself. He arrived in St. Jago in Ma,y, 1823,'
sold two hundred pieces of the plaintiff's goods to pay duties and
charges, and left the balance of the plaintiff's goods, also the
goods of the other shippers, and his own, which were then un-
sold, with the defendants, who were commission merchants at
St. Jago, for sale. He gave the defendants at the same time a
list of the goods left with them, in which the names of the va-
rious owners were marked, under the description of their goods.
During Hollinshead's stay at St. Jago, he made a shipment
through the agency of the defendants, of sugar, coffee, and mo-
lasses, amounting to fourteen thousand eight hundred and eleven
dollars and seventy-five cents, on board the brig Union, bound
to Philadelphia. In account-current between the defendants
and Hollinshead, dated July 3, 1823, he was charged with the
amount of the shipment per the Union, and credited with seven
thousand three hundred dollars, for bills drawn by him by vir-
tue of a letter of credit, the extent of which did not appear, and
f*1 Qfil * wn ^ tne net sa ^ es f * ne Sally and Polly's cargo. The
-" account showed a balance against him of six thousand
and sixty-two dollars and seventy-three cents. On the 5th of
July, Hollinshead left St. Jago, after requesting the defendants,
by letter dated 4th July, to dispose of the goods left for his ac-
count ; he hopes the flour will bring the limits; but says they
must do the best they can with it ; he directs the dry goods to
be sold for the prices fixed, and states that some satins and
teas would soon arrive, which he wishes them to sell, and credit
him with five per cent, commissions for sales, and two and a
half for purchasing or remitting. On Hollinshead's return to
Philadelphia, he settled with Thomas & Martin, on the 9th of
August, 1823, for two hundred pieces of the plaintiff's goods,
which were sold, and paid them thirty-seven dollars and sixteen
cents, the balance of their proceeds after deducting charges, &c.
A correspondence took place between Hollinshead and the de-
fendants, and Thomas & Martin and the defendants, of which
the following is the substance :
May 7, 1824, Holliushead writes to the defendants, acknowl-
edging the receipt of theirs of the 13th of April ; was aston-
ished the flour turned out so badly ; wishes the defendants to
write to Thomas & Martin, respecting the blue India goods ;
inquires whether they will sell, and requests them to be careful
to deduct out his commissions on sales and reshipments. May
20, 1824, Thomas & Martin write to the defendants, stating,
218
Feb. 15, 1833.] OF PENNSYLVANIA. 196
[Newbold v. Wright and Shelton.]
that if their goods could not be readily sold at two dollars per
piece, they wish them returned by the first opportunity. In
August the defendants reply, stating that they had sold part of
the goods, and will endeavour to sell the balance. November
12, 1824, Thomas & Martin write .to the defendants inclosing
Hollinshead's order for their goods, requesting remittance for
sales made, and the return of the goods unsold. January 18,
1825, the defendants reply, that the sales are closed ; and that
they had rendered an account-current to Hollinshead, the 28th
of October, which shows a small balance (two hundred and
twenty-three dollars and six cents) in his favour, which they
will hold subject to his orders.
February 19th, 1825, Thomas & Martin acknowledge the
receipt of the defendants' letter of the 18th of January, and
state, that from it they infer that the defendants made Hollius-
head an advance on their shipment by the Sally and Polly : That
Hollinshead is dead, and they therefore expect the defendants to
unravel the mysterious business, as he had informed them he
could not obtain an advance on their goods, but was obliged to
sell two hundred pieces to pay freight, duty, &c. : That they
wish the defendants to forward copies of the acount of sales,
and any receipts of Hollinshead for moneys advanced on their
goods : That they do not understand why Holliushead's order,
forwarded on the llth of November, is not sufficient to justify
payment of the balance, if not more than the proceeds of the six
bales of goods ; and that on receiving copies of the accounts,
they hope C. Hollinshead's character, and that of their house,
will stand unimpeached. They add in the postscript, that C.
Hollinshead informed them, that he, by several *oppor- r*-|Q7-|
tuuities, had forwarded orders to the defendants, to ac- L
count to Thomas & Martin for the proceeds of the goods, soon
after his arrival from St. Jago, which was the reason of their
not obtaining an order from him sooner, which will more fully
appear by reference to his letters to the defendants of the 7th
of May and the 12th of November, 1824.
May 19th, 1825, the defendants reply, stating that the ac-
counts had been forwarded to Hollinshead in duplicate : That
they now send copies: That it is not their fault if Thomas &
Martin's interests have suffered : That, as by their account-
current they stand responsible to Hollinshead's estate for the
balance it exhibits, they cannot transfer it to Thomas & Martin
on the order sent, which did not reach them until after they hac
accounted to him, and that had it reached them sooner, the}
could only have accounted for the balance due after the liquida-
tion of their advances.
219
197 SUPREME COURT [Philadelphia,
[Newbold v. Wright and Shelton.]
The account of sales is dated the 30th of September, 1824.
Sales of seven hundred and fifty-nine pieces Succatoous :
Gross sales, $1,518.00
Matting, 12.00
1,530.00
Charges, 86.65
$1,443.35 due on the average.
November 1st, 1824.
The current-account dated the 1st of January, 1825, between
C. Hollinshead and the defendant, showed a balance in his
favour of two hundred and ninety-three dollars and six cents.
C. Hollinshead wrote to the defendants November the 12th,
1824, stating that he was pleased to hear they had sold all
Thomas & Martin's goods, but had since learned they had sold
but two hundred and fifty pieces : That he had given Thomas
& Martin an order for the balance of their goods in the defend-
ants' hands, and for the proceeds of those sold, and requests
the defendants to deduct five per cent, commissions out of the
sales, and two and a half per cent, if reshipped, and place them
to his credit : That he was sorry Mr. Archer's goods would not
sell : That he wishes them to make up his account and send it,
as he wants to know the balance against him ; and wishes Mr.
Sheltou to send him the letter of credit he left with him when
last in Cuba.
Jacob M. Thomas and James Martin, members of the firm of
Thomas & Martin, commission merchants here, were examined
on the part of the plaintiff, who proved that the goods in ques-
tion belonged to the plaintiff at the time of the shipment: That
a lot of goods, of which these were part, vras placed in their
hands by the plaintiff for sale : That they had made an advance
on them to the plaintiff, but had sold enough to reimburse their
l~*1 QSl advance : That Thomas & * Martin had no interest in
J the shipment, which was made under the direction of the
plaintiff: That the defendants have never paid them the balance
of two hundred and ninety-three dollars and six cents : That
Hollinshead stated he could get no advance on the plaintiff's
goods, which was the reason for making sales at such a sacrifice
to pay the freight, duties, &c., on the outward shipment : That
Hollinshead received his instructions from them, as agents of
the plaintiff: That they never communicated to the defendants
that the plaintiff had any interest in the goods : That their cor-
220
Feb. 15, 1833.] OF PENNSYLVANIA. 198
[Newbold v. Wright and Shelton.]
respondence with the defendants was communicated to the plain-
tiff, and received his sanction and approbation : That Hollins-
head was dead, considerably insolvent, and that they could never
find among his papers the accounts which the defendants stated
they had sent.
The plaintiff gave in evidence the outward manifest of the
Sally and Polly's cargo, dated the 26th of April, 1823. -
The defendants read in evidence the deposition of Thomas
Brooks, a clerk in the employ of the defendants. He stated
that Hollinshead arrived in St. Jago in May, 1823, in the Sally
and Polly with a cargo of provisions and dry goods, consigned
to the defendants : That from the list of the cargo, and from
Holliushead's not mentioning that any other persons were in-
terested therein, he believed the cargo belonged to Hollinshead :
That Hollmshead received the sum of six thousand and sixty-
two dollars and seventy-three cents, an advance from the de-
fendants, in cash and merchandise to himself, for repayment of
which the goods were left in the defendants' hands, as per the
list of goods and account-current : That Hollinshead, in his
correspondence directed the defendants to sell the goods left :
That in December, 1823, the defendants received an order from
Hollinshead to deliver to C. Bispham's order part of the goods :
That in the same month and year another order was received
to account to M. Burrough for part : That in November, 1824,
another order was received to account to S. Archer for part,
which orders were accepted : That on the 27th of December,
1824, they received another order from Hollinshead, sent by
Thomas & Martin, to account to them for the balance of six
bales Moreas, left by him in the defendants' hands, which order
could not be complied with, as the account of sales of these
goods had been before rendered to Hollinshead : That the de-
fendants owe Hollinshead or his representatives two hundred
and ninety-three dollars and six cents, as per the account-
current of January 1st, 1825: That the plaintiff never wrote
to the defendants, nor the defendants to the plaintiff: That
such copies of the defendants' letters to Hollinshead as the
deponent could produce were annexed to the deposition : That
the goods in question were always held and considered as the
property of Hollinshead until the liquidation of all advances
made, and they and their proceeds subject only to his order.
On his cross-examination he stated : That the defendants did
not make the advance to Hollinshead on any one description
of the merchandise remaining in their hands, separately and
specifically, but, *made the said advance, receiving as r*iqq-i
security therefor the whole of the remaining goods, L
which, by his order, were to be sold for his account and the
221
199 SUPREME CQURT [Philadelphia,
[Newbold v. Wright and Shelton.]
liquidation of the said advance : That on Hollinshead's arrival
in 1823, the only unsettled account between him and the defend-
ants was one in which there was a small balance in his favour
of one dollar : That the defendants, as commission merchants,
were agents in a sale of produce to Hollinshead in 1823, and
shipped by them by his order on board the brig Union, bound
to Philadelphia, in June, 1823; for whose account the deponent
does not know ; the invoice was attached ; the amount of the
shipment, fourteen thousand eight hundred and eleven dollars
and seventy-five cents, was charged to Hollinshead in the ac-
count-current of the 4th of July, 1823, as due that day: That it
was never known to the deponent, nor as he believes to the de-
fendants, that the goods in question were shipped by any other
person than Hollinshead, unless Hollinshead might have stated
verbally that others were shippers, of which the deponent had
no recollection ; nor was there any positive information given,
as the deponent believes, to the defendants, to cause them to
know that the. said goods actually belonged to any other per-
son, or to whom they belonged, until the receipt of Holl ins-
head's order of the 31st of October, 1824, received the 27th of
December, which stated that the goods belonged to Thomas &
Martin, and were consigned to Hollinshead by them, and then
for the first time directing the defendants to follow Thomas &
Martin's directions relative to the said goods ; although the
defendants had before received a letter from Thomas & Martin
on the subject of the said goods, dated 5th mo. 21, 1824, which
stated that Hollinshead had ordered the proceeds of sales to be
remitted to them, but said nothing of their or any other per-
son's property in said goods ; nor was any order of Hollins-
head's so to account to them for them, ever received by the de-
fendants until the one before mentioned, on the 27th of Decem-
ber, 1824: That in the list of goods left by Holliushead at his
departure from St. Jago, in 1823, is written the name of Thomas
& Martin over the description of the goods in question, from
which circumstance the deponent inferred, that the said goods
were received from Thomas & Martin, either through purchase
or otherwise, but their right in the property was never made
known specifically to the defendants until the transfer ordered
by Hollinshead: That Hollinshead made no consignment of
goods to the defendants after he left Cuba in 1823, except a
small bill of castings amounting to one hundred and thirty-two
dollars and twenty-eight cents ; and that Hollinshead took from
the defendants a receipt for the goods left, of which a copy was
annexed. The correspondence between Hollinshead and the
defendants, and Thomas & Martin and the defendants was an-
nexed to the deposition.
222
Feb. 15,1833.] OF PENNSYLVANIA.
[Newbold v. Wright and Shelton.]
The accounts sales made by the defendants are headed, "Ac-
count sales by Wright & Shelton of sundries received per
schooner Sally and Polly, by order of C. Hollinshead, for ac-
count of all concerned."
*In account- current No. 10, under date of March
4, 1824, is an entry of charges on Archer & Bispham's
goods.
The defendants also read the deposition of two witnesses,
commission merchants of St. Jago de Cuba, who stated that it
was the usage of trade there, for the resident merchants to
make advances on merchandise and cargoes deposited with them
for sale, and to sell the same for account of the person to whom
the advance was made, and put the proceeds to his credit in ac-
count : That they treat the supercargo as the owner, and will
not account to the foreign shipper without an order from the
supercargo, and then only for the balance beyond the advance :
That it was not the practice to ask supercargoes for invoices or
letters of instruction : and that there are about eight commission
houses at St. Jago, all of whom conform to this usage.
Samuel Archer was examined for the plaintiff, and stated,
that in 1823 he shipped goods by the Sally and Polly, by C.
Hollinshead: That they were placed in the defendants' hands
for sale: That they were sold for more than the limits, and
the proceeds of the sale remitted, 3d of September, 1825,
amounting to two thousand and eleven dollars and nineteen
cents: That he thought he received no order from Hollins-
head for his goods ; no mention of any was made in the corre-
spondence ; it was probable Hollinshead wrote to the defend-
ants to make sales: That he obtained no advances from the
defendants; and did not think he authorized Hollinshead to
take any advance.
The correspondence between S. Archer and Hollinshead, and
between S. Archer and the defendants, was read, but is not
material.
The judge (after stating the evidence) says: What is the
character of the balance of six thousand and sixty-two dollars
and seventy-three cents, due on the 5th of July, when the
supercargo left the island? Was it his own debt, or contracted
on the credit of the cargo ? He had a letter of credit to some
extent, as appears by his letter of the 12th of November, 1824;
what its extent precisely was, does not appear. On the 5th of
July, the shippers had full confidence in him. There was no
suspicion, that appears, of his infidelity, or prospect of his sub-
sequent death and insolvency. Did the defendants act fairly
and bonafide in tne course of trade? Was this a pledge for his
own debt, or like the case of Laussatt v. Lippincott, in the
223
200 SUPREME COUKT [Philadelphia,
[Newbold v. Wright and Shelton.]
Supreme Court, cited by the counsel, a deposit in anticipation
of a sale, out of which the advances were to be repaid? It
would seem to me it was not a pledge, but a deposit of that
kind. The defendants certainly never trusted him on his per-
sonal credit for so large a sum. Supercargoes are generally
young men, known to be of little or no property. Independ-
ently of usage, therefore, the case in this respect is favourable
to the defendants; but I wish you carefully to examine Backus
and Chamberlain's evidence, as to the course and usage of
f*90n trade. If such a usage is proved, is it a reasonable
- *one? Is it not like the usages of other places? You
will judge for yourselves whether this usage is proved, and if it
is, whether it be reasonable, and whether it be not conformable
to the general mercantile usage and course of trade. Brooks'
evidence perhaps goes too far; but supposing the defendants to
have known the real character of Clayton Hollinshead, and the
names of all the shippers, does it alter the case? lie was in
their full confidence, lie was their authorized agent, with the
large powers of a supercargo. Might not the defendants con-
sider him the proper person to raise and settle accounts with,
and leave him to apportion and distribute among his principals?
Was there any privity independently of the specific orders be-
tween the shippers and the defendants? Are their accounts true
extracts from their books, made up as they bear date; (for we