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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) online

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vey the said premises, or such parts thereof as shall remain unsold
and undisposed of, " to such person or persons as shall and may
then (to wit, at the death of the said Maria Barbara and Isaac
Johnson), be the heirs and legal representatives of the said Maria
Barbara ; and in such parts, shares and proportions, as such person
or persons shall be entitled to according to the laws of Pennsyl-



524 SUPREME COURT \MarcTi Term,

[Lentz v. Hertzog.]

vania in cases of intestacy." In order to designate the persons who
are to take under this description in the deed, we must resort to the
laws of intestacy, which give it to the children, and the representa-
tives of a deceased child or children, per stirpes and not per capita,
And where can we draw the line of distinction ? If this be neces-
sary in the one case, why not in the other, especially when the
construction produces equality. The grantor says, they shall have
it in such parts, shares and proportions as such person or persons
shall be entitled to, according to the intestate laws ; or in other
words, in case she does not dispose of it in her lifetime, the property
is to be distributed in the same manner, and in the same proportions
as if she had died intesta-te. If it had been intended that they
should take an equal share of the land, as tenants in common, it is
difficult to imagine why this language was used. But on the sup-
*COK-I position that the children *who were equally dear to her,
' were to be put on an equal footing at her death, it may be
readily explained. There may have been reasons which made an
advance to one or more children at the time perfectly proper, which
did not apply to another. But this reason may have ceased to
exist, and it is by no means inconsistent with the idea that the
parent intended to place all her children on perfectly equal grounds
at her death. That this may have been the case, is probable ; and
no reason has been given why one or more children should be so
greatly preferred to another in the distribution of the estate. The
court learns to that construction which produces equality among
children ; the law, which is based upon equality, applies equally in
this state to real and personal property.

This view of the case, makes it immaterial whether the estate
was executory or executed ; whether the words " heirs and legal
representatives," were words of purchase or limitation ; or whether
the estate to the heirs and legal representatives, was an estate for
life or in fee. The court are of the opinion, that Maria Barbara
Lentz is entitled to receive the sum of three thousand dollars, &c.,
or other sum which may be hereafter ascertained, to make her
equal to her brothers and sisters, before division of the estate.

Judgment reversed, and judgment for the defendant.

Cited by Counsel, 10 Watts 167 ; 9 Harris 286 ; 5 Casey 210; 7 Id. 338.
Cited by the Court, 1 Grant 371 ; 4 Wright 60; || Story's Appeal, 2
Norris 99. ||

See also ante, 130.



1839.] OF PENNSYLVANIA. 526



*[PHILADELPHIA, MAT 8, 1839.] [*526

Comly against McBride.



IN ERROR.



|| A receipt of the price of goods by an agent of a consignee, is a receipt
by such consignee, so as to enable the consignor to maintain an action for
money had and received against the consignee, even though such agent failed
to remit said price to such consignee. || 1

ERROR to the District Court for the City and County of Phila-
delphia.

This was an action of assumpsit, brought by Patrick McBride,
who was a manufacturer of domestic goods, against Samuel Comly,
to whom, as he alleged, he had consigned certain cases of such
goods for sale.

The first and second counts of the declaration were for selling
under the invoice price, against the defendant's promise and under-
taking. The third was for negligence in the sale, and selling for
less than could have been got, with ordinary and reasonable care,
by five hundred dollars. The fourth was for not rendering a rea-
sonable account of the sale, and for not paying over the proceeds to
the plaintiff. This count alleged a sale of the goods by the defend-
ant, but contained no averment of his receipts of the proceeds.
The fifth and remaining counts were for goods sold and delivered,
money had and received, and an account stated.

It appeared on the trial that the goods were consigned to Comly
in Philadelphia, to be sent to one Thompson, a commission mer-
chant at New Orleans, who it appeared was in the habit of selling
goods for other persons as well as for Comly, who was his agent
here, to send him goods and procure him consignments. Testi-
mony was adduced that instructions were given by McBride in
Comly's counting house some time before sending the goods or
invoice, to send them to New Orleans. McBride had called and
made an arrangement for that purpose.

It was testified by a clerk in the defendant's employ at the time
of the transaction, that in cases like this the original invoice would
*be retained, and that in this case it was retained by the r*c97
defendant, but he did not know where it then was.

Another witness in the defendant's employment proved that he
had been directed by the defendant to make out an account current
between the parties. That he copied it from the original account-

1 1| The syllabus to the former edition was as follows, viz. : " A receipt for
the price of goods given by an agent of a consignee, is a receipt by Lis
employer, so as to enable the consignor to maintain an action for money had
and received against the consignee." ||



527 SUPREME COURT [March Term,

[Comly v. McBride.]

sales of Thompson. That he was directed by the defendant to
ascertain the interest on the sales ; and to add the interest and
commission to McBride's account, amounting altogether to about
twenty-seven hundred dollars. McBride complaining that his
goods were sold too low, the witness was told by Comly to make
some deduction in consequence. That there was an effort to com-
promise after McBride's complaint ; and the witness was requested
to make out an account by which the parties were to settle the mat-
ter in dispute. He was told to take off all the charges in New
Orleans, and all in Philadelphia. It was a settlement of Mc-
Bride's account in the book account of sales of his goods sold
under the limits, but that he understood that McBride fled from
the proposal. Another witness who was requested by the plaintiff
to call on Comly about his sales, said that he never heard him dis-
claim responsibility as principal in this transaction, and that he
did not pretend that he was settling with McBride as agent for the
Thompsons. That the witness had himself sent goods to New
Orleans through the defendant, who had never attempted to shift
the responsibility from himself to Thompson ; nor pretended that
he was settling with him as the agent of Thompson. Testimony
was also given, that in the spring of 1835 goods advanced in
price.

On the part of the defendant it was proved by various witnesses
in New Orleans, that the goods were sold for their full market
value at the time.

The defendant also gave the evidence of a colored man in his
employ, and whose business it was to examine all the invoices con-
signed to him in this city and suburbs, and to mark them if correct,
that these goods never came into Comly 's store, but went directly to
the wharf. This witness swore that he came out of the store to
obtain the invoice, and followed the drays, which went down to the
wharf ; that on the wharf McBride came up to the witness and said
he had a lot of goods ; and on being asked for the invoice, he said,
they are not for you, I am going to ship them to New Orleans. The
witness then left him and came up to the store : it was one of Mr.
Comly 's vessels ; McBride did not give him the invoice ; witness
had no recollection of dates ; and said that he had never mentioned
those facts to his employer or any one else.

It was also proved that Thompson suspended payment in April
1837 : that Comly was a very heavy creditor of Samuel Thomp-
son's, about $500,000 : in February 1836, it was upwards of
#^90-1 *400,000, and it appeared to have been so for a considerable
J time : that Thompson did not remit specially to pay these
sales ; but did remit large sums from time to time.

The original invoice furnished by the plaintiff to the defendant
was not in evidence.



1839.] OF PENNSYLVANIA. 528

[Comly v. McBride.]

The account-sales of Thompson, dated the 30th of November
1835, and 6th of January 1836, were headed " Sales account of
Patrick McBride, by order of Samuel Comly."

The invoice of the eleven cases of domestics purported to be con-
signed to Mr. Samuel Thompson, for sale, on account of Patrick
McBride.

The learned judge in his charge to the jury said, That it was a
question of fact for their decision, whether, as the plaintiff con-
tended, the goods were consigned directly to the defendant so as to
make him responsible, or, as the defendant alleged, they were con-
signed to Mr. Samuel Thompson, at New Orleans, so that the
defendant was a mere forwarding agent, and not answerable for the
sales. That if the jury were of opinion with the plaintiff, on the
question jus-t stated, the plaintiff could recover upon the declaration
filed in this action. In commenting upon the evidence, the judge
noticed the fact that in the account-sales made out by Mr. Thomp-
son and produced by the defendant, commission and guaranty were
charged by Samuel Thompson, and the net proceeds of sales placed
to the credit of Samuel Comly ; that if, on the facts, Mr. Comly
was liable to the plaintiff, he might, so far as the plaintiff was con-
cerned, be regarded by the jury as having had and received to the
use of the plaintiff, the net proceeds thus passed to his credit no
matter what the actual state of the general account between him
and Mr. Thompson was. As there was a count in the declaration
for money had and received, the judge thought, without looking to
the other counts (though the plaintiff was entitled to have them con-
sidered if necessary), that if the jury found for the plaintiff on the
merits, the action could be maintained.

To this charge exception was taken by the defendant : and the
verdict being for the plaintiff, this writ of error was brought and
error was assigned as follows :

1. The court erred in charging the jury, that the sales of the
goods having been made by Samuel Thompson, and the proceeds of
the same passed to the credit of Comly by Thompson, might be
considered by the jury as so much money had been received by the
defendant to the use of the plaintiff although there was no
evidence to show that the defendant had ever received any money
or remittance from Thompson for or on account of said sales.

*2. The judge erred in this, that he declined to charge r^rnq
the jury, that the action was not sustained by the evidence '
as he was requested to do, but on the contrary charged that the
same was good, and that the plaintiff might recover upon it.

Mr. Me Call, for the plaintiff in error.

The only question is, will money had and received lie where the
defendant has not actually received money, but only a credit for



529 SUPREME COURT [March Term,

[Comly v. McBride.]

money from an insolvent person ? This is the only point to be de-
cided ; for the judgment being entered generally on all the counts,
cannot be sustained if the count for money had and received be
bad. That the money was ever actually received by Comly is not
pretended ; nor can it be maintained that an equivalent for it has
been received, unless it can be shown that a mere book credit from
a man who, at the time of the credit was deeply indebted to him and
ever since so continued, is equivalent to a receipt of money. During
the period embracing these sales, Comly was a creditor of Thomp-
son of upwards of five hundred thousand dollars. [KENNEDY, J.
Is not the receipt of the agent the receipt of the principal ?] Not
for the purpose of maintaining this form of action. The money
must actually be received to sustain this action, not by any intend-
ment of the law. Perhaps there may be a solitary exception in the
case of negotiable paper. It is a question of remedy. There is a
class of cases in which an agent or middle-man who has received a
credit from his sub-agent has been held responsible to the principal
in this form of action. But that is where another element is combined,
namely, the destruction of the principal's remedy against the sub-
agent by the acts, negligence or omissions of the middle-man ; in other
words, where he has made the debt his own. Such was Andrew v.
Robinson, 3 Camp. 198 ; and Wilkinson v. Clay, 6 Taunt. 110.
But these cases have no analogy to this. Comly has not tied up
the plaintiff's hands as to Thompson, nor destroyed any security
or impaired any obligation of Thompson to him. [GiBSON, C. J.
Could McBride recover against Thompson Is there any privity
between them ?J I submit that he clearly has a right to look to
Thompson, who was his agent in New Orleans as Comly was here.
He then commented on the facts to show that such privity existed
between McBride and Thompson.

Mr. Haly, for the defendant in error.

There was evidence that the vendor of the consigned property
in New Orleans, was the defendant's agent, and that the defendant
never disclaimed his liability as principal, for the proceeds of sale ;
further that the amount was passed to the defendant's credit in the
account sales furnished to him by his sub-agent, and that large
amounts were, in fact, remitted to the defendant, though not spe-
cially on this account. The jury have found against the defendant
as principal, upon the whole evidence, and, however the objections
*rqA-i now *raised might have constituted grounds for an applica-
J tion for a new trial below, they are unavailable here after
verdict. The jury having found the fact of a receipt of the plain-
tiff's moneys by the defendant's agent, the defendant himself is
bound thereby and the count for money had and received is appli-
cable, and all sufficient for the plaintiff's purposes. He never



1839.] OF PENNSYLVANIA. 530

[Comly 0. McBride.]

recognised Thompson as his agent ; is content with the finding of
the jury against the defendant ; and therefore declines (as he always
has) the proffered remedy against the sub-agent, who was notor-
iously insolvent before he went to New Orleans.

Mr. Srashears in reply.

PEE CURIAM. A remittance of the proceeds of sales by an
agent is not necessary to maintain an action against the principal.
It is true that an action for money had and received cannot be
sustained unless money has been actually received, but if the actual
vendor were the defendant's agent, of which there was evidence to
go to the jury, his receipt of the price was the defendant's receipt
of it. Finally there was a count in the declaration on which the
plaintiff might recover. Judgment affirmed.

|| Cited by Counsel, 11 Norris 525 ; s. c. 9 W. N. C. 52. ||



*531] *[PHILADELPHIA. MAT 8, 1839.]

The Commonwealth against Green and others. 1

QUO WARRANTO.

1. The General Assembly of the Presbyterian Church is not a quasi cor
poration. A quasi corporation has capacity to sue and be sued, as an arti-
ficial person, which the General Assembly has not. It is also established by
law, which the General Assembly is not. Neither does the General Assembly
bear the same relation to the corporation of the trustees of the General
Assembly, &c.. as the shareholders do to a bank or joint-stock company ; for
the latter are an integrant part of the body. The General Assembly is a
segrated association, which, though it is the reproductive organ of corporate
succession, is not itself a member of the body.

2. The General Assembly having no corporate quality in itself, it is not a
subject of the Court's corrective jurisdiction, or of the Court's scrutiny,
further than to ascertain how far its organic structure may bear on the
question of its personal identity or individuality.

3. The Acts of the General Assembly of 1837, exscinding the Synods of
Utica. Genessee, Geneva and the Western Reserve, were nothing more than
ordinances of dissolution.

4. The plan of union of 1801, between the Congregational and Presby-
terian churches, was a mere temporary expedient, and therefore acquired the
force of a law without the ratification of the presbyteries. It could be con-
stitutionally repealed by an ordinary act of legislation ; and those synods
which had their root in it could not be expected to survive it.

5. A permanant amalgamation of Congregational and Presbyterian
churches, would compromise a principle at the very root of Presbyterian
government, which requires that the officers of the church be set apart by
special ordination for the work.

6. The General Assembly is a homogeneous body, uniting in itself without

1 I am indebted for the report of this case to F. W. Hubbell, Esq. REP.



531 SUPREME COURT [MarcTi Term,

[Commonwealth v. Green.]

separation of parts, the legislative, executive, and judicial functions of tho
government.

7. The four synods could not have been proceeded against judicially, for
they had committed no offence. The plan of union, according to its true
construction, admitted mixed churches, partly congregational and partly
Presbyterian, into the Presbyterian system, and authorized them to send
unordained lay delegates to the presbyteries. Had the synods been judicially
prosecuted for this relaxation, they could have pleaded the plan of Union as
a defence.

8. These acts of exscision did not exclude the Presbyterian parts of the four
synods from the church ; provision being made for them, by allowing them to
attach themselves to the nearest presbytery.

9. It is immaterial to inquire into the fact whether the four synods had
actually been constituted on the plan of Union. If the General Assembly
proceeded in good faith, the validity of its enactment cannot depend on the
justness of its conclusion. This court has no power to re-judge ita judgments.
%r 09-1 *10. As the synods in question were constitutionally dissolved, the

' J presbyteries of which they had been composed, were at least for the
purpose of representation, dissolved along with them ; for no presbytery can
be in connection with the General Assembly, unless it be at the same time
subordinate to a synod. The commissioners from the exscinded synods,
were not, therefore, entitled to seats in the General Assembly.

11. But even if they were entitled to seats, the refusal of an appeal from
the decision of the moderator, would be no ground for the degradation of
that officer at the call of a minority ; nor could it impose on the majority an
obligation to vote on a question put unofficially, and out of the usual course.

1'2. When a question is put by the established organ, silence is acquies-
cence with the majority, because each member is supposed to have assented
beforehand to the process pre-established to ascertain the general will ; but
this rule of implied assent is inapplicable to a measure which is essentially
revolutionary, and based on no pre-established process of ascertainment
whatever.

13. To affect silent members with an implication of assent, the ground of
the motion, and the nature of the question must be so explicitly put before
them as to prevent misconception or mistake.

14. The moderator of the preceding year, presiding under the provision of
the constitution during the organization of the succeeding year, is a mere
mechanical instrument of organization, and not at all subject to the control
of the General Assembly.

15. If he were corporeally present, but refused to perform his functions,
he might be deemed constructively absent, insomuch that the commissioners
might proceed to the choice of asubstitute ; but not if he had entered on the
performance of his task.

16. A motion to put upon the roll the names of the commissioners from
the four synods, made before the body was sitting, under the presidency of
its own moderator, was premature. Such questions are proper for the deci-
sion of the body when it is fully constituted and prepared for organization.

17. The title of the commissioners from the exscinded synods, could be
determined only by the action of the house, which could not be had before
its organization was complete. In the meantime the moderator was bound
as the executive instrument of the preceding assembly, to put its ordinances
in execution ; for to the actual assembly, and not to the moderator of the
preceding one, it belonged to repeal it.

THIS was a quo warranto issued by this court under the act of
the 14th of June 1836. The suggestion and other pleadings were
in the following words.



1839.] OF PENNSYLVANIA. 532

[Commonwealth v. Green.J

" City and County of Philadelphia, ss.

"James Tod, John R. Neff, Frederick A. Raybold, George W.
McClelland, William Darling, and Thomas Fleming, who sue for
the Commonwealth in this behalf, come here into the Supreme Court
for the Eastern District of Pennsylvania, and for the said Common-
wealth give the court here to understand and be informed, that
Ashbel Green, William Latta, Thomas Bradford, Solomon Allen,
and Cornelius C. Cuyler, all of the city and county of Philadelphia,
since the twenty-fourth day of May, in the year of our Lord one
thousand eight hundred and thirty-eight, have exercised and do still
exercise the franchises and privileges of corporators, within the said
city and county, without lawful authority, namely, the franchises
and privileges of trustees of a certain corporation, called and known
by the name of Trustees of the General Assembly *of the r^/rqo
Presbyterian Church of the United States of America : That "-
on the day and year last aforesaid, the above-named James Tod,
John R. Neff, Frederick A. Raybold, George W. McClelland,
William Darling, and Thomas Fleming, were in due and regular
form of law, elected trustees of the said corporation, by the General
Assembly of the Presbyterian Church in the United States of
America, agreeably to the provisions of an act of assembly, passed
on the twenty-eighth day of March, in the year of our Lord one
thousand seven hundred and ninety-nine, entitled, An act for incor-
porating the trustees of the Ministers and Elders constituting the
General Assembly of the Presbyterian Church in the United States
of America, but notwithstanding the said election, they the said
Ashbel Green, William Latta, Thomas Bradford, Solomon Allen,
and Cornelius C. Cuyler, have for the time aforesaid used, and still
do use the franchises, offices, privileges, and liberties aforesaid, and
during the said time have usurped and do usurp upon the Common-
wealth therein, to the great damage and prejudice of the constitu-
tion and laws thereof. Whereupon the said relators for the said
Commonwealth, do make suggestion and complaint of the premises,
and pray due process of law against the said Ashbel Green, William
Latta, Thomas Bradford, Solomon Allen, and Cornelius C. Cuyler,
in this behalf to be made, to answer to the said Commonwealth by
what warrant they claim to have, use and enjoy the franchises and
privileges aforesaid."

" And now, this thirty-first day of July, in the year of our Lord
one thousand eight hundred and thirty-eight, comes the said Ashbel
Green, by John K. Kane, his attorney, and protesting that the
suggestions filed in this case., is altogether insufficient in law, and
that he need not, according to the law of the land, to make answer
thereunto ; nevertheless, for a plea in this behalf he saith, that
the said Commonwealth ought not to implead him by reason
of the premises in the said suggestion set forth because he



533 SUPREME COURT [March Term,

Commonwealth v. Green.]

saith, that by the first section of an act of assembly of this
Commonwealth, passed the twenty-eighth day of March A. D.
1799, entitled An act for incorporating the trustees of the Minis-
ters and Elders constituting the General Assembly of the Pres-
byterian Church in the United States of America, this defendant
and certain other citizens of this Commonwealth, were made,
declared and constituted a corporation and body politic and cor-
porate in law and in fact to have continuance forever, by the
name, style and title of Trustees of the General Assembly of
the Presbyterian Church, in the United States of America ; by
force of which said act of assembly, he saith that he became law-
fully authorized and entitled to exercise with his associates, in that
behalf lawfully constituted, the office of one of the trustees of the



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 4) → online text (page 61 of 74)