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Reports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 4) online

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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.
Sylvester v. Girard, ....... 185

2. In an action of trover by the holder
of such a note against the drawer,
who had got possession of it and re-
fused 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 case, .... Ibid,

3. If such a note has been delivered to
the plaintiff for the mere purpose of
getting it exchanged, no properly
passes to him, and the circumstances
of his being a creditor of the person
delivering it, if no receipt or other
acknowledgment of credit on the old
debt be given at the time, does not
alter the case, Ibid.

4. Quere, whether a promissory note
given for a consideration partly legal
and partly illegal, is valid for so
much as is legal, Ibid.

See BANK, 6, 7, 8



See SURETY, 1, 2, 3.










1. The act of assembly of the 20th of
March, 1818, "to improve the navi-
gation of the river Lehigh," and that
of the 13th of February, 1822, "to
incorporate the Lehigh Coal and



Navigation Company," in whom the
rights, &c., of the grantees tinder the
former act became vested, in provid-
ing a remedy for injuries occasioned
by the construction of the works,
provide for nothing that was not
remediable at common law, and, on
the other hand, the statutory remedy
extends to every common law injury.
Lehigh Bridge Company v. Lehujh
Coal and Navigation Company, . . 9

2. A coi poration (such as a bridge com-
pany), though not within the letter
of the acts, is within their equity,
and may recover damages in the
mode prescribed by them, for injuries
sustained in its property, . . Ibid.

3. If a corporation omit to continue the
succession to certain offices which
constitute an integral part of its
body, but these offices be supplied
with officers de facto, it is sufficient to
sustain its existence as to strangers,
and to enable it to maintain a suit,


4. The loss of an integral part of a cor-
poration, works a dissolution to cer-
tain purposes only; the corporate
franchise being suspended, but not
extinguished. An entire dissolution
is the result of a permanent inca-
pacity to restore the deficient part,
and never happens where the legiti-
mate existence of the part is not in-
dispensable to a valid election, or
other means of reproduction, . Ibid.

5. A forfeiture of t lie charter of a cor-
poration for abuse or neglect of its
franchise, must be declared by pro-
cess and judgment of law, before the
corporation can be treated as defunct.


6. The existence of a corporation plain-
tiiF, can be put in issue only by a plea
in abatement, or, at least, by such a
plea as denies the whole declaration ;
pleading over specially to the merits,
admits the plaintiff's capacity to sue,



See EVIDENCE, 1, 2, 3.





1. Covenants are to be construed de-
pendent or independent of each
other, according to the intention of
the parties, and the good sense of
the case ; and technical words should
give way to such intention M' Crelisk
v. Churchman et a/., 26

2. A. being indebted to B. in the sum
of five thousand one hundred and
seventy dollars and forty cents, for
tallow, for which he had given eight
promissory notes of different dates,
for different sums, payable at different
times, gave to h. his bond for five
thousand dollars, payable in one year
from its date, accompanied by a mort-
gage on his real estate, and paid him
the balance of the debt, one hundred
and seventy dollars and forty cents,
in cash. On the same day, an agree-
ment in writing was entered into be-
tween the parties, by which it was
stipulated that B. should pay off and
take up all the notes as they became
due, and deliver them to A. The
agreement contained a covenant on
the part of B. to indemnify A. against
all claims and demands arising on the
notes. The notes all came to maturity
before the bond was payable B.,
without having taken up any of the
notes, which were all protested as
they became due, and remained in
the possession of different holders at
the time of the trial, issued a scire
facia.-', on the mortgage : Held, that
the bond, mortgage, and agreement,
constitute one instrument, and that
no recovery could be had on the
mortgage, Ibid.









A deed, purporting to convey all the
right and title of the grantor to land
of which he had previously parted
with the fee simple, reserving only a
right to a portion of the purchase-
money charged upon the land, does



not pass his interest in the money
so charged. Graft, for the use of
Powell, v. Webster, 242


1 . A deposition read by one party on
the argument of a rule to show cause
why a feigned issue should not be
directed to try his right to money in
court, cannot be read in evidence by
the opposite party on the trial of the
issue, when the witness is himself in
court, and capable of being examined.
Stiles et al. v. Bradford, .... 394

2. Perhaps the reading of the deposi-
tion might be deemed an admission
of the competency of the witness, so
far as respects existing objections on
the side of the party reading it, but
it cannot be deemed such an admis-
sion of its contents, as to supersede
the rule that the best evidence in
the power of the party must be
given, Ibid.


1 . Testator devised as follows : " Prin-
cipally and first of all, I give and be-
queath to my eldest son, J. N., my
late purchase from E. C., as also four
acres of woodland being in a corner,"
&c. The land purchased from E. C.,
was purchased in fee simple, and held
that a fee passed to the devisee, both
in the land purchased from E. C.,
and in the four acres of woodland.
Neide v. Neide, 75

3L Real estate, acquired after the mak-
ing of a will, does not pass under a
devise of the residue of the testator's
real estate, without a subsequent re-
publication of the will, even where
the testator, in addition to the gen-
eral devise of the residue, declares in
a codicil, that it is his wish and in-
tention that all the real estate which
he shall thereafter purchase, shall
pass by the said will. Girard et al.
v. The City of Philadelphia, . . 323




1. On an appeal from the decree of the
Court of Common Pleas on a petition
for a divorce, an affidavit that it is
not intended for delay, must be filed.
Brentlinger 'v '. Brentlinger, . . . 241

2. But such an affidavit is not a pre-

requisite to an appeal, Until the
affidavit is filed, the appeal is not
complete, but the court will not dis-
miss the appeal on the ground that
such an affidavit has not been filed
with the record, where the defect has
been supplied during the term (even
if the court be sitting by adjourn-
ment) and before motion to dismiss

the appeal, Ibid.

3. Adultery, committed by the husband
after the wife has separated herself
from him, is no bar to his obtaining
a divorce, in consequence of the wife's
wilful and malicious desertion, and
absence from his habitation without
reasonable cause, for the space of
two years and upwards. Ristine v.
Ristine, 460






See BANK, 3.

See SURETY, 2, 3. PRACTICE, 2.

1. If counsel submit to the court sev-
eral distinct questions of law, with
a request that the jury may be in-
structed on them, it is not error to
answer them collectively, provided
they all relate to the same matter
and are answered fairly and fully.
Coates v. Roberts, 100

2. The withdrawal of material facts
from the jury is error. Newbold v.
Wright & Shelton, 195

3. It is error to permit a party to read
so much of the docket entries of the
suit under tral, as shows that the
opposite party had appealed from an
award of arbitrators ; though neither
the award itself was read, nor that
part of the docket entries which
showed what the award was. Hum-
phreys v. Kelly, 305

4. The expression by the court, of an
opinion upon the evidence, even if
incorrect, is not the subject of a writ
of error. But if the court give a
binding direction on the facts, and
thus withdraw them from the jury,
it is error. Baker v. Lewis, . . 356

5. To tell the jury that where a testa-
tor is of sound mind, and not under
undue influence, he has a right,
which cannot be controlled, to make



such disposition of his property as
he pleases, and that under, such cir-
cuiusUmces, the reasonableness or
otherwise, of his testamentary dis-
positions is of no consequence, is not
error. But to instruct them that the
contents of the instrument are not
evidence, however unreasonable and
absurd its testamentary dispositions
may be, even where its execution is
impeached on the ground of fraud
and imbecility of mind in the tes
tator, is error, Ibid.

6. It is no reason for reversing a judg-
ment, that the court below rejected
"sundry documents, letters, and
other papers," not brought up with
the record, or in any way connected
with it, but stated in the bill of ex-
ceptions to have been " to and from
the parties in the suit touching the
premises in question, and matters in
dispute," and to have been offered by
the plaintiff in error as rebutting
evidence to the jury, though similar
" letters, documents, and other papers
as to dates " were previously read by
the opposite counsel without objec-

tion by the counsel of the plaintiff in
error, and without its having been
adverted to by the judge, that they
were dated after suit brought ; and
though the judge rejected the docu-
ments, letters, and other papers of-
fered, on account of their being
dated after the commencement of the
action. Gratz v. Gratz, . . . .411



If a fieri facias be issued, and returned
" Levied as per inventory," &c., with
an inventory annexed thereto, and
immediately after its return an alias
fieri facias be issued on the same
judgment, and put into the sheriff's
hands, with instructions from the
plaintiffs attorney to stay proceed-
ings for the present, the object being
merely to secure the debt due to his
client, it must be postponed to a fieri
faci'is subsequently issued by another
creditor, which has been duly acted
upon. Hickman v. Caldwdl. Black
v. The Same, 376


See ORPHANS' COURT, passim.
1. There is a distinction between the

liabilities of executors with respect
to creditors, and those with respect
to legatees ; and there are many
cases in which they would be dis-
charged as against the latter, though
not against the former. Case of
M' Naii* a Appeal, . . . . . .148

2. So long as executors manage the
estate of their testator in accordance
with the ideas which he himself en-
tertained of it, and do nothing but
what there is reason to believe he
would have approved, could he have

^been consulted, it seems they are
not responsible for losses as respects
legatees ; aliter, as respects creditors,


3. Testator made a will of which he
appointed his three sons, A., B., and
C., executors, and directed that two
of his sons, A. and B., should put out
to interest for the use of his daughter
B,., two thousand six hundred and
sixty-seven dollars of his estate, "on
land security, or otherwise render it
safe and productive, and pay the pro-
ceeds thereof to her from time to
time, as they in their wisdom should
judge most for her benefit." Among
the assets which came into the hands
of the executors, was a bond given
to the testator by G. S. and his fa-
ther J. S. in which the latter was
surety. The bond was dated in 1810.
In 1813, at a meeting of the cred-
itors of G. S., an offer was made to
the testator to pay off the bond,
which he declined, saying he did not
wish it paid during his life ; he only
wanted the interest. He continued
to receive the interest until his death
in 1816. J. S., the surety in the
bond, died, in 1818, leaving a large
estate. A suit was afterwards brought
against his executors to recover the
amount of the bond, but it was ad-
judged to be a joint and not a sev-
eral bond, and that therefore there
could be no recovery against the es-
tate of J. S. as G. S. had survived
him. G. S. became insolvent about
the year 1817, and the monev was
lost. There was some evidence to
show, that about a year after the
death of the testator, one of the lega-
tees offered to take the bond as part
of her share of the estate, which A.,
one of the executors, would not
agree to, intimating that he wished
to retain it as a part of the fund to

. be set apart for the use of the testa-



tor's daughter R. It also appeared
that G. S. in the year 1820, offered
to A., one of the executors in satis-
faction of the bond in question, a
bond and mortgage on certain lands
in Steuben county, New York, but
it was not shown what was his title
to the lands, nor what was their
value, and the offer was refused. The
executors appeared to have acted
with good faith throughout the
whole business, and in the suits in-
stituted on the bond in controversy,
acted under the advice of eminent
counsel. Held, that under the par-
ticular circumstances of the case, of
which the above are the principal,
they were not responsible to the leg-
atees for the loss of the bond, and
that they were entitled to credit for
the expense they incurred in en-
deavoring to collect it, ... Ibid.



'. The seal of a foreign corporation
cannot be admitted in evidence
without proof that it is the official
seal which it is asserted to be. Chew
v Keck etal.., . . 163

2. If a similar seal has already been
given in evidence,without objection,
the jury are not to be permitted to
compare the two seals, and judge of
the genuineness of the second from
the comparison, [bid.

3. If upon a hearing of the cause be-
fore arbitrators, the seal has not
be^n objected to, the party offering it
on the trial in court, is not entitled,
on the ground of surprise, to have a
juror withdrawn, Ibid.

4. A n inquisition taken under a com-
mission in the nature of a writ de
lunatico inquirendo, finding that a
person is of unsound mind, and has
been so for a certain space of time
prior to the finding, is prima facie
evidence to show that a deed pur-
porting to have been executed by
such person during that period, is
invalid on the ground of the mental
incompetency of the grantor. Hut-
chinzon et al. v. Sandt, ...... 234

5. It is, however, only prima facie evi-
dence, and may be rebutted by the
testimony of those who were ac-
\juainted with him during the period

in question, and knew him to have
been of sound mind, or at least to
have had lucid intervals, and that
the deed was executed by him during
one of those intervals, .... Ibid.

6. And the members of the inquest
who found him to be of unsound
mind, are competent to prove such
facts, so far as they are within their
knowledge, but they cannot be ex-
amined for the purpose of proving
what they conceived to be the na-
ture of their finding, and that they
did not intend to find or represent
that he had been of unsound mind
for the space of five years anterior to
the inquisition, or that they did not
know until after their report had
been made, that it was retrospective
in its operation, Ibid.

7. A verdict and judgment between
the same parties or their privies, on
the same subject-matter, though in
a different form of action, is admis-
sible and conclusive. Marsh v. Pier,


8. Therefore, if P. brings an action for
the price of goods against N., the rec-
ord of the judgment is admissible
and conclusive on the issue of prop-
erty in replevin for the same goods,
brought by P. against a purchaser
under N. ; and this, whether the
judgment be for the plaintiff or the
defendant in the first action, . Ibid.

9. A bill of particulars, if proved to be
genuine, is evidence to show the
precise subject-matter of an action,


10. A mutilated piece of paper, which
appears to have been torn out of a
book, in which the name neither of
the plaintiff nor defendant appears,
which contains no charges against
the defendant, and which is unintel-
ligible without explanation by the
plaintiff, is not admissible in evi-
dence, as a book of original entries.
Hough v. Doyle, 291

11. In an action of slander for calling
the plaintiff a whore, the defendant
cannot, under the plea of not guilty
with leave to give the special matter
in evidence, give evidence to prove
that the plaintiff' was a reputed thief
before the time at which it was
proved that he had spoken the
words. Smith v. Buckecker and wife,


12. Nor can the defendant be permitted
to prove, that before the time at



which he had spoken the words, it
was reported, that the plaintiff' had
been accused by her sisters of having
had connection with J. H., . . Ibid.

13. A book, purporting to be a book of
original entries, containing entries of
the sale of goods, made when the
goods were ordered, but before they
were delivered, is not competent evi-
dence of goods sold and delivered.
Nor are arbitrary signs or marks af-
fixed to the entry of each article, not
for the purpose of charging the de-
fendant, but of informing the porter
so as to prevent a second delivery of
a similar article, are riot evidence of
delivery, particularly when it ap-
pears that the signs or marks were
not always made by the person who
made the charge, nor by the plain-
tiff, or a clerk in his employment.
Rhoadu v. Gaul et at., ..... 404

14. Where a plaintiff makes an entry
of goods sold upon a card, with pen
and ink, and the same evening or the
next day transcribes the entries into
a book, the book is to be considered
as the book of original entries of the
plaintiff, and may be read in evi-
dence to the jury, and the material
on which the entry was first written,
or its size and shape, are indifferent.
Pattonv. Ryan, 408



1. A factor cannot pledge the goods of
his principal for his own debt. New-
bold v. Wright & Shelton, . . . 195

2. A usage cannot be set up in opposi-
tion to a general rule of law ; there-
fore, a usage for factors to pledge
the goods of their principals, is bad.


3. 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 inter-
ests separate, Ibid.

4. Where a general advance is made
to a factor on a general deposit of
goods owned by various persons, it
must be borne ratably by all, . Ibid.

fi. Where an agent sells the goods of
his principal on credit, taking a note
for the price gives notice of the sale

to his principal, and credits him in
account with the amount of it, but
omits to give notice of the non-pay-
ment of the note at maturity, the
agent becomes responsible for the
whole amount of the debt, and it is
not necessary, to enable the principal
to recover, that he should prove he
has sustained any damage. The
omission to give reasonable notice,
makes the agent an insurer of the
solvency of the purchaser. Harvey
v. Turner & Co., 223




Under the fee bill of the 28th of
March, 1814, the recorder of deeds
can only charge thirty-seven and a
half cents for a certificate and seal,
and cannot add to it a charge of
twelve and a half cents for a search
made to enable him to give the cer-
tificate. If he exacts payment of
such double charge, he incurs the
penalty of fifty dollars imposed by
the 26th section of the fee bill.
Harrison v. Ellmaker, 162

See DEVISE, 1.


1. On the trial of a feigned issue, to
try the right of B. to have and re-
ceive, according to the amount of
his liens, (under the revival by scire
fcwias of certain judgments, the lien
of which had expired by the lapse of
time,) the money in court, in which
it was agreed that the defendants in
the issue should be entitled to the
benefit of any question that might
arise in relation to the lien of a judg-
ment of reversal, or under the origi-
nal judgment, the defendants cannot
inquire into the consideration of such
judgments, or travel into the cause
of action on which they were found-
ed. Stiles v. Bradford, . . , . .394

2. Under the act of the 16th of April,
1827, "relative to the distribution
of money arising from sheriffs' and
coroners' sales," the court has a right,
where the estate has been sold as the
property of E. under process against
him, but is alleged to have been
really the property of T., to direct
a feigned issue to try the right of,a



judgment creditor of T. to the money
in court, Ibid.






1. Parol evidence is admissible to show
fraud in the formation of a written
instrument, or a fraudulent use of it
afterwards. Oliver for the use of Row-
land v. Oliver et a/., 141

2. In the latter case, it is not neces-
sary to have recourse to a writ of
deceit; relief may be given in an
action of trespass on the case, . Ibid.

3. The meditation and concealment
by a grantee, at the time of the exe-
cution of the deed, of an impracti-
cable plan of acquiring the property
which is the subject of the grant,
and afterwards refusing to perform
the agreement which was the con-
sideration of it, and subsequently
acting in pursuance of such plan,
are not such a fraud as will produce
a recision of the contract, and pre-
vent the grantee from recovering in
ejectment against the grantor. Fritz
v. Hooker, 370

See PARTITION, 3, 4, 5, 6.



1. Testator devises to G. K., his execu-
tor, and to his heirs and assigns, a
certain tract of land, which he pur-
chased of W. S. E , with the appur-
tenances; also, all the goods and
chattels assigned to him by the said
W. S. E , to hold to him the said G.
K. his heirs and assigns in trust,
only to and for the sole and separate
use of A. E., the wife of the said
W. S. E., and the heirs and assigns
of her the said A. forever, so that
the same shall not be in any manner
or way whatever, subject to any of
the debts, contracts, or engagements
of her husband. "I also give and

bequeath unto the said G. K. the
sum of one thousand dollars in trust
. for the use of her the said A. E ,"


Held, that the bequest of one thousand
dollars, was not for the sole and sep-
arate use of the wife, but went to
the husband. Evans and Wife v.
Knorr, Executor of Norton, ... 66

2. A legacy was left to a married
woman, whose husband had deserted
her, and from whom she was subse-
quently divorced from the bonds of
matrimony. After the divorce she
demanded payment of the legacy,
which the executors refused, on the
ground that the husband alone was
entitled to it, although he had never
claimed it, and it was uncertain
whether he was dead or living.

Held, that the wife was entitled to re-
cover. Wintercast v. Smith, . . 177

3. A deed by a husband conveying
the wife's choses in action to trustees
for the benefit of the wife and her
child, though not a reduction of such

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme Court of Pennsylvania [1828-1835] (Volume 4) → online text (page 63 of 65)