the termination of ten years from the first return day of the
term to which the original judgment was entered, the second
revival came too late; and, it seems, the words of the law
in favour of this construction, are too imperative to be got
over. There was an interval, at which the lien of the mort-
gage attached, and it was properly allowed a preference.
Decree affirmed
Cited by Counsel, 4 W. 208 ; 12 K 29, s. c. 8 W. N. C. 247.
Explained in 4 W. 343.
Cited by the Court, 1 S. 209.
See Act March 26, 1827 (9 Sm. L. 303).
356
JifarcA29 ; 1833.] OF PENNSYLVANIA, 318
[PHILADELPHIA, MARCH 29, 1833.]
The President, Directors, and Company of the Mer-
chants' Bank of the City of New York against the
President, Directors, and Company of the Bank of
the United States.
IK ERROR.
Where a loss has been sustained by one of two or more innocent persons, it
must be borne by him whose act was the cause of it.
Therefore, where the plaintiffs, a bank in New York, stood in the relation
of creditor to the defendants, a bank in Philadelphia, and the former received
in Philadelphia, from the latter, in payment of the debt, specie drawn from
other banks, and not from the defendants' own vaults, contained in boxes taken
at the tale of those banks by the defendants in the first instance, and after-
wards by the plaintiffs' agent, who had an opportunity, and every necessary
facility to tell the money for himself, but omitted to do so, and the specie was
afterwards, under the direction of the plaintiffs' agent, transferred from the
boxes to kegs, and sent to New York, where it was afterwards discovered that
there was a deficiency in some of the kegs, but it was impossible for the de-
fendants to ascertain in which of the banks from which they had drawn the
specie, the errors had occurred, it was held that the plaintiffs were not enti-
tled to recover the amount of the alleged deficiency.
THIS was a writ of error to the District Court for the city
and county of Philadelphia, in an action brought by the plain-
tiffs in err.n against the defendants in error, to recover the sum
of one hundred and ninety-two dollars, with interest from the
3d of December, 1825, for a deficiency of silver delivered by
the latter to the former, in payment of certain drafts, amount-
ing together to forty-two thousand one hundred and thirty dol-
lars. The amount received in payment turned out to be only
forty-one thousand nine hundred and thirty-eight dollars.
*The deficiencies occurred in five kegs v*-i] ql
1. Marked $3000 deficient $75 00
2. " 2480 " 3 50
3. " 3000 " 58 50
4. " 3000 " 53 50
5. " 2650 " 1 50
$192 00
It appeared in evidence on the trial in the District Court, that
on the 3d of December, 1825, the plaintiffs sent to Philadelphia
an agent to present to the defendants certain negotiable paper
amounting to forty-two thousand one hundred and thirty dollars,
for which he was instructed to demand specie. On presenting
357
319 SUPEEME COURT [P?ii!ade2phw,
[Merchants' Bank v. Bank of the United States.]
the drafts to the first teller of the United States Bank, he was
told that they would draw for the amount on other banks in
the city, and hand it over to him as soon as it was received ; at
the same time he was requested to call again at a certain hour
named by the teller. The defendants accordingly drew out of
three other banks eighty-nine thousand dollars in specie, of
which the first teller directed forty-two thousand dollars to be
handed over to the plaintiffs' agent. The latter returned to the
bank at the time specified, which was about four or five hours
after his first visit, when he received from the first teller certain
boxes, said by him to contain specie to the amount of forty-two
thousand one hundred and thirty dollars. The boxes were
brought from carts into the Bank of the United States, and not
from the vaults .of the bank. The agent of the plaintiffs, for
the purpose of better securing the money, caused it to be taken
out of the boxes, placed in kegs made purposely for specie, lined
with hoops nailed on the inside of the chimes and the outside
of the heads, and iron hooped or bound. This was done in the
Bank of the United States by a cooper employed by the plain-
tiffs' agent, in his presence, and also in the presence of the
porter and several other officers of the Bank of the United
States, particularly of the first teller. The porter was present
during the whole time they were repacking the specie. There
were forty-two boxes, each said to contain one thousand dollars,
and the balance, of one hundred and thirty dollars, was paid at
the counter. The boxes were placed in the back room of th,e
Bank of the United States, where there was ample room for
counting it, and tables placed for that purpose, and it was proved
to be the practice of the bank to allow time for counting there
after banking hours. The kegs remained at the Bank of the
United States until the plaintiffs' agent took them away for
transportation. From the bank they were taken on board the
steamboat, where they remained under the charge of the agent
of the transportation line, until the return of the plaintiffs'
agent, who had gone to some other banks for specie which he
r*^9m ^ ac ^ ^ rece ^ ve> He took his passage on *board the
J steamboat in which the specie was placed, and accom-
panied it as far as Trenton, from which place it was transported
to Brunswick in wagons, accompanied by himself, and from
Brunswick it was carried on board a steamboat to New York,
where it was delivered at the bank of the plaintiffs. From the
time the steamboat left Philadelphia, with the specie on board,
until it was delivered at the Merchants' Bank in New York, by
their agent, it was constantly under his eye. When it was deliv-
ered there, the kegs were in good condition, uninjured, and bore
no marks of violence. When the specie was delivered to the
358
March 29 1833.] OF PENNSYLVANIA. 320
[Merchants' Bank v. Bank of the United States.]
plaintiffs' agent he was not requested to count it, nor was any
objection made to his doing so. On his examination as a witness
in the cause, he stated, that he thought it would have taken him
at least two days to count it. The first teller, who was also ex-
amined as a witness, swore that it would require about an hour
to tell by weight forty thousand dollars, and that three persons
might count that sum in three or four hours. He likewise swore
that it was always left to the person who received the money to
attend to repacking it. The kegs of specie were delivered by
the agent to the first teller of the Merchants' Bank, in New
York, on the 6th of December, 1825, and were opened a few
days after, behind the counter in the banking-room. From the
time they were received, until they were opened, they were kept
in the vaults of the bank. The specie was counted by the first
teller, assisted by the porter of the Merchants' Bank, when the
deficiencies in the kegs above mentioned were discovered. The
alleged deficiency was communicated on the 28th of December,
1825, by letter to the cashier of the Philadelphia Bank, who
was, requested to ask for payment of it from the Bank of the
United States. A statement of the amounts deficient in the
five kegs was at the same time transmitted. Application for
payment was accordingly made to the defendants, by whom it
was refused. The deposition of the agent, first teller, and porter
of the Merchants' Bank, were then sent on, and the application
for payment renewed, which the Bank of the United States
again refused.
The first teller of the Bank of the United States testified that
there was an understanding between the Bank of the United
States and the other banks in this city, that where specie goes
in the original boxes, mistakes shall be corrected, but that with
foreign banks, the Bank of the United States had never, in any
instance, corrected an alleged mistake. There had been some
small errors with foreign banks, to the amount often or fifteen
dollars, and one to the amount of fifty dollars, but in that in-
stance the money had been counted and afterwards weighed.
These errors seldom occurred, and had never been corrected.
He also testified that if an error had been discovered at the time
the specie was repacked, the defendants could have ascertained
in what bank it had occurred, but that after mixing it up, there
were no means of knowing.
Judge Coxe, before whom the cause was tried, instructed the
.jury thus: "That supposing the jury to be satisfied that the
deficiency *of one hundred and ninety-two dollars did r*ooi-|
exist at the time of the delivery of the boxes in pay- *
ment of the drafts, then, if the jury be satisfied from the evi-
dence, that Catliu the agent of the plaintiffs, knew that the boxes
359
321 SUPEEME COURT [Philadefyhia,
[Merchants' Bank v. Bank of the United States.]
of money were received from other banks, although he did not
know the names of said banks, nor what banks, further than
that they were banks of this city ; that he knew the said boxes
were marked so as to ascertain the bank from which each was
received ; that he knew that the error could be rectified so as to
protect the defendants if a deficiency were ascertained in the
original boxes if he knew the defendants delivered the original
boxes taken in payment, immediately on their receipt, to facili-
tate his departure without counting, and relying on his care, dili-
gence, and integrity, as well as that of the officers of the banks
from which they were received, and that the boxes were delivered
to ascertain if correct, and were placed in a proper room, with
counters and other conveniences for ascertaining the amount,
and that Catlin, the plaintiffs' agent, knowing these facts, chose
to have the original boxes broken open by a cooper, and boy,
and the contents thrown into kegs, each containing three boxes,
and mixed up the money .received from different banks, so that
it was impossible to identify them, and thus the said agent of the
plaintiffs, knowingly prevented the defendants from protecting
themselves from the loss which arose from the errors of the other
banks, and not from their own, and the said agent then took on
the said money to New York, on the 3d or 4th of December,
and delivered the same to the plaintiffs, who kept it until the
25th of December, before they counted it ; if these facts be es-
tablished from the evidence, in the opinion of the jury, together
with the knowledge of them by Catlin, the plaintiffs' agent, I
am of opinion it would be contrary to equity for the plaintiffs
to recover in this action."
To this opinion the counsel of the plaintiffs excepted.
J. M. Read, for the plaintiffs in error, cited Com. on Cont.
326 ; Lamine v. Dorrell, 2 Ld. Ray. 1217 ; Jones v. Ryde, 5
Taunt. 488 ; Bank of the United States v. Bank of Georgia,
10 Wheaton, 342; Curcier v. Pennock, 14 Serg. & Rawle, 51 ;
Raymond v. Baar, 13 Serg. & Rawle, 318 ; Gloucester Bank v.
Salem Bank, 17 Mass. Rep. 33; Cox v. Prentice, 3 Maul &
Selw. 344 ; Gallatin v. Bradford, 1 Bibb, 209 ; 3 Mason. 1 ; 8
Cowen, 88, 97
Cadwalader, for the defendants in error, cited Ellis v. Wild,
6 Mass. R. 321 ; Yernon v. Boverie, 2 Show. 296 ; Alexander
v. Owen, 1 T. R. 226 ; Shep. Touch. 142 ; Wade's Case, 5 Rep ?
115 ; Co. Litt. 208, a; Young v. Roth, 4 Bing. 253; 6 Taunt.
76 ; 6 Barn & Cres. 673 ; Rep. in Ch. 68 ; 15 Yes. 440 ; Hart
v. Ten Eyck, 3 John. Ch. R. 108 ; v. Tegg, 2 Russell's
Ch. R. 385.
360
Jfim*29,1833.] OF PENNSYLVANIA. 321
[Merchants' Bank v. Bank of the United States.]
The opinion of the court was delivered by
GIBSON, C. J. There is a rule which disposes with perfect
and *unquestionable justice of every loss, which must r^onQ-i
be borne by one of two or more innocent persons, by L " J " J -'
assigning it to him whose act was the cause of it. Both parties
here are blameless ; and the question is, whether the act of the
one or the other contributed more to produce the state of things,
which renders a loss by one of them inevitable. The facts are,
that at the time of the transaction they stood in the relation of
debtor and creditor; and that to answer the convenience of the
former, the specie given in payment, was drawn from three other
banks instead of its own vaults. It was contained in boxes taken
at the tale of those banks, by the defendants in the first place,
and afterwards by the plaintiffs, whose agent had an oppor-
tunity and every necessary facility to tell the money for him-
self, but omitted to do so ; so that according to the custom in
such cases, the boxes were delivered and received by common
consent, without a particular examination of their contents :
consequently, it is unnecessary to decide the vexed question,
whether it be the business of the party paying, or the party
receiving, to see that the money is right. There was a tacit
agreement to deliver and receive the boxes, according to their
nominal amount ; and though an agreement founded in mutual
mistake of a fact which was the inducement to it, be not usually
conclusive, where it is not explicitly understood that the parties
are respectively to take the risk of the fact as being in a par-
ticular way, it certainly is otherwise where the consequences of
unravelling the transaction, would put the opposite party in a
worse situation than if the agreement had not been made. The
creditor requiring a review of the transaction, to ascertain the
amount actually paid, must be able to show that the debtor
cannot possibly be prejudiced in this respect. How he is to
show it, is not the question here, where he has shown, on the
contrary, that the defendant would suffer an irretrievable loss
from the plaintiffs' own act in confounding the contents of the
boxes, and thereby rendering it impossible to fix the deficiency
on any particular one of the banks from which the boxes were
procured. By the plaintiffs' own showing, then, the act which
rendered the loss inevitable, was done by its own agent. In
putting the cause to the jury, the judge laid particular stress on
the agent's supposed knowledge of the circumstances. That
would undoubtedly strengthen the case, as it would be a species
of bad faith, knowingly to deprive the defendant of the moans
of recourse to another for the deficiency, and at the same time
to insist that the defendant should make the deficiency good ;
but it wa not an essential ingredient. Between parties equally
361
322 SUPREME COURT [Philadelphia,
[Merchants' Bank v. Bank of the United States.]
innocent, and consequently equally meritorious as to everything
else, the personal responsibility for the act which led to the loss,
is sufficient to turn the scale, for the reason, that every man
should bear the consequences of his own acts, just as he should
bear his own misfortunes. The case then, as it appeared on the
evidence, and clearly as it was put to the jury by the court,
was one on which the plaintiffs could not recover.
Judgment affirmed.
Cited by Counsel, 3 Wh. 283.
[*323] ^[PHILADELPHIA, MARCH 29, 1833.]
Girard against The Mayor, Aldermen, and Citizens of
Philadelphia.
Vidal and Wife against the Same.
CASE STATED.
Heal estate, acquired after the making of a will, does not pass under a de-
vise of the residue of the testator's real estate, without a subsequent republi-
cation of the will, even where the testator, in addition to the general devise
of the residue, declares in a codicil, that it is his wish and intention that
all the real estate which he shall thereafter purchase, shall pass by the said
will*
THESE were amicable actions of ejectment, instituted to try
the title of the defendants, who were the residuary devisees of
she late Stephen Girard, to certain real estate, situate in the
oity and county of Philadelphia, described as follows, in the
agreement under which the actions were entered :
"Two houses and lots on Walnut street, between Second and
Dock streets, Nos. 63 and 65, and one house and lot on Dock
street, No. 61, purchased October 5, 1831, by the late Stephen
Girard.
"A lot of land in Passyunk township, containing sixty acres
and eighty-seven perches, purchased by the same, October 27,
1831.
* The law on this subject is altered by the following section of the Eevised
Act "Relating to last wills and testaments," passed April 8th, 1833, (Pam. L.
250:)
"Sec. 10. That real estate acquired by a testator after making his will, shall
pass by a general devise, unless a contrary intention be manifest on the face
of the will." EEPORTEB.
362
JfarcA29 1833.] OF PENNSYLVANIA. 323
[Girard el cd. v. The City of Philadelphia.]
"A house and lot on the north side of Coates street, west of
Sixth street, purchased by the same, October 27, 1831.
"A lot of ground on the north-east corner of Coates and
John streets, purchased by the same, November 2, 1831.
"A house and lot in South Third street, No. 48, purchased
by the same, November 4, 1831.
" A messuage and lot of ground in Passyunk township, having
a front on Schuylkill, purchased by the same, December 1,
1831.
" Stores, wharf, and dock in North Water street, between
Market and Arch streets, late Stiles' estate, purchased by the
same, December 21, 1831."
The following case was stated for the opinion of the court,
to be considered as a special verdict :
" Stephen Girard, Esquire, late of the city of Philadelphia,
banker, died on the 26th day of December, 1831 seized in fee
of all and singular the real estate set forth in the agreement to
enter the above action, purchased by him at the dates mentioned
in the said agreement having first made and executed his last
will and testament, dated the 16th day of February, 1830, and
codicils thereto, dated *respectively on the 25th day of r*o9,-n
December, 1830, and the 20th day of June, 1831, duly I
proved in the register's office for the city and county of Phila-
delphia, on the 31st day of December, 1831, [prout will and
codicils, which are to be considered as part of this case] and
leaving at the time of his death, the following named heirs at
law :
" 1. Etienne Girard, a brother of the testator of the whole
blood.
"2. Antoinetta Hemphill, wife of John Hemphill, Henrietta
Clark, wife of John Y. Clark, and Caroline Haslam, wife of
John B. Haslam ; the said Antoinetta, Henrietta, and Caroline,
being the children of John Girard, deceased, a brother of the
testator of the whole blood.
" Francoise Fenellon Vidal, the wife of Louis Vidal ; the
said Francoise Fenellon being the daughter of Sophia Girard
Capayron, deceased, a sister of the testator of the whole
blood."
The following parts of the will only, are material :
" IX. I gl/e and devise my house and lot of ground thereto
belonging, situate in rue Ramouet aux Chartrons, near the city
of Bordeaux, in France, and the rents, issues, and profits thereof,
to my brother, Etienne Girard, and my niece Victoire Fenellon,
(daughter of my late sister Sophia Girard Capayron,) (both re-
siding in France,) in equal moieties for the life of my said
brother, and, on his decease, one moiety of the said house and
363
324 SUPREME COURT [Philadelphia,
[Girard et al. v. The City of Philadelphia.]
lot to my said niece Victoire, and her heirs forever, and the
other moiety to the six children of my said brother, namely,
John Fabricius, Marguerite, Ann Henriette, Jean August,
Marie, and Madelaine Henriette, share and share alike, (the
issue of any deceased child, if more than one, to take amongst
them the parent's share) and their heirs forever.
"X. I give and bequeath to my said brother, Etienne Girard,
the sum of five thousand dollars, and the like sum of five thou-
sand dollars to each of his six children above named : if any of
the said children shall die prior to the receipt of his or her
legacy of five thousand dollars, the said sum shall be paid, and
I give and bequeath the same to any issue of such deceased
child, if more than one, share and share alike.
" XI. I give and bequeath to my said niece, Victoire Fenel-
lon, the sum of five thousand dollars.
" XII. I give and bequeath absolutely to my niece, Antoi-
netta, now married to Mr. Hemphill, the sum of ten thousand
dollars, and I also give and bequeath to her the sum of fifty
thousand dollars, to be paid over to a trustee or trustees to be
appointed by my executors, which trustee or trustees shall place
and continue the said sum of fifty thousand dollars upon good
security, and pay the interest and dividends thereof as they shall
from time to time accrue, to my said niece for her separate use,
during the term of her life, and from and immediately after her
decease, to pay and distribute the capital to and among such of
her children and the issue of deceased children, and in such
parts and shares as she the said Antoinetta, by any instrument
under her hand and seal, executed in the presence of at least
f*^2"T *two credible witnesses, shall direct and appoint, and
' for default of such appointment, then to and among the
said children and issue of deceased children in equal shares,
such issue of deceased children, if more than one, to take only
the share which their deceased parent would have taken if living.
" XIII. I give and bequeath unto my niece, Carolina, now
married to Mr. Haslam, the sum of ten thousand dollars, to be
paid over to a trustee or trustees to be appointed by my execu-
tors, which trustee or trustees shall place and continue the said
money upon good security, and pay the interest and dividends
thereof from time to time as they shall accrue, to my said 1 niece,
for her separate use, during the term of her life; and from and
immediately after her decease, to pay and distribute the capital
to and among such of her children and issue of deceased chil-
dren, and in such parts and shares, as she the said Carolina, by
any instrument under her hand and seal, executed in the pres-
ence of at least two credible witnesses, shall direct and appoint,
and for default of such appointment, then to and among the
364
3farcA29.1833.] OF PENNSYLVANIA. 325
[Girard et al. v. The City of Philadelphia.]
said children, and issue of deceased children, in equal shares,
such issue of deceased children, if more than one, to take only
the share which the deceased parent would have taken if living;
but if ray said niece, Carolina, shall leave no issue, then the said
trustee or trustees, on her decease, shall pay the said capital and
any interest accrued thereon, to and among Caroline Lallemaud,
(niece of the said Carolina,) and the children of the aforesaid
Antoinetta Hemphill, share and share alike.
"XIV. I give and bequeath to my niece Henrietta, now
married to Dr. Clark, the sum of ten thousand dollars ; and I
give and bequeath to her daughter Caroline, (in the last clause
above named,) the sum of twenty thousand dollars, the inter-
est of the said sum of twenty thousand dollars, or so much
thereof as may be necessary, to be applied to the maintenance
and education of the said Caroline during her minority, and the
principal, with any accumulated interest, to be paid to the said
Caroline, on her arrival at the age of twenty-one years."
The testator then gave the residue of his estate, to "the
mayor, aldermen, and citizens of Philadelphia," in the manner
set forth in the following clause of his will :
"XX. And whereas, I have been for a long time impressed
with the importance of educating the poor, and of placing them
by the early cultivation of their minds and the development of
their moral principles, above the many temptations to which,
through poverty and ignorance, they are exposed ; and I am
particularly desirous to provide for such a number of poor
male white orphan children, as can be trained in one institution,
a better education, as well as a more comfortable maintenance
than they usually receive from the application of the public
funds: And whereas, together with the object just adverted to,
I have sincerly at heart the welfare of the city of Philadelphia,
and, as part of it, am desirous to improve the neighbourhood
*of the river Delaware, so that the health of the citi- r*o9p-i
zens may be promoted and preserved, and that the "-
eastern part of the city may be made to correspond better with
the interior: Now, I do give, devise, and bequeath, all the resi-
due and remainder of my real and personal estate of every sort
and kind, wheresoever situate, (the real estate in Pennsylvania
charged as aforesaid) unto 'the mayor, aldermen, and citizens
of Philadelphia/ their successors and assigns, in trust, to and