Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) online

. (page 30 of 71)
Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) → online text (page 30 of 71)
Font size
QR-code for this ebook


action of trespass. But it may be asked, are the owners to be with-
out remedy ? This, which might have otherwise been the conse-
quence of the enactment in the supplement, has been effectually pre-
vented. The act provides, in the first place, for an amicable settle-
ment and in case the parties cannot agree, it has empowered the court
to settle all differences between them, upon the most fair and equi-
table principles, by the appointment of men with authority to settle
the controversy, and to give to the owners all the damages which
may accrue to them in consequence of the diversion of the main route
of the railroad. It is by no means a strange construction of this
clause to hold, that the omission or refusal to make a passage for
the convenience of the owner, when required, is an injury or
damage consequent to the change of route, and, as such, comes
within the spirit of this enactment. We cannot intend that the
legislature would do anything so unjust, as to leave the injured
party without remedy ; and the redress which they afforded here
is plainly pointed out in the act ; and they certainly could not have
intended that he should be compelled to seek redress at common
law. In connection with the claim for compensation, the arbitrators
are required to take into consideration the amount of damages
already paid, and the advantages to be derived by the reversion of
the fee simple of the land to the former owner. If this course had
been pursued, equal and exact justice could have been done to both
parties ; and this action would seem like an attempt to elude those
equitable provisions in favor of the company. If this suit can be
supported, the company may be precluded from showing, as may be
the case, that the benefit which the plaintiff has obtained by the
change of route, is more thsih an equivalent for the damage sus-
tained by the omission or refusal to make the road or causeway, as
required by the original act.

Judgment affirmed.

|| Cited by counsel, 14 Smith 392 ||



1839.] OF PENNSYLVANIA. 261

*[PHILADELPHIA, FEBRUARY 6, 1840.] [*261

Comly against Bryan and others.
Eising and another against Bryan and others.



IN ERROR.



In an action in the District Court for the City and County of Philadelphia
by the endorsees of a bill of exchange dated at Nashville, against the acceptor
residing in Philadelphia, the defendants filed an affidavit of defence, stating
that after the bill was due, '' it was forwarded by the plaintiffs to D. W. &
Co. of Nashville," who by letter, dated after the bill became due, had agreed
to receive payment in their own notes, &c. In a supplemental affidavit, the
defendant stated that he had seen an entry in the account-book of the plain-
tiffs, in which the bill " had been charged back by them to the endorsees, by
whom it had been forwarded to them for collection." In an action in the
same court by the endorsees against the drawer of the bill, the defendant
filed an affidavit of defence, stating that the bill was "held, as the deponent
has learned since the same was due, by D. W. & Co., of Nashville," who
were indebted to the defendant in a much greater amount, and by letter dated
after the bill became due, agreed to receive payment in their own notes held
by the defendant -, and the affidavit concluded with stating, that the bill "if
now held and owned by the plaintiffs must necessarily have been transferred
to them by D. W. & Co. since the date of the letter. " Held, that the Dis-
trict Court was right in giving judgments for want of sufficient affidavits of
defence in the above cases.

THESE cases were brought into this court by writ of error to the
District Court for the City and County of Philadelphia, and were
argued together.

The first was an action of assumpsit, brought to June term 1838,
by Timothy M. Bryan, John Rodman and Isaiah B. Heylin, trad-
ing as Bryan, Rodman & Heylin against Samuel Comly, as accep-
tor of a bill of exchange drawn by Rising & Harris.

The second action which was brought to September term 1838,
was brought by the same plaintiffs against Rising & Harris, the
drawers of the bill.

*The plaintiffs filed in each action a copy of the bill r*nan
of exchange on which the suit was brought, and which was '-
as follows :

"$500. Nashville, March 3d, 1837.

Ninety days after date pay to the order of J. H. Fisher, five
hundred dollars, value received, and charge the same to account.

RISING & HARRIS.

To Mr. Samuel Comly. Philadelphia. No. 759.

Accepted, payable at Philadelphia Bank. Endorsed by J. H.
Fisher, Richmond, Fisher & Co., Bryan, Rodman & Heylin."

In the case of Bryan v. Comly, the following affidavit of defence
was filed on the 13th of June 1838.

" Samuel Comly, the defendant, being duly affirmed, doth depose
5 WHARTON 17



262 SUPREME COURT [Dec. Term,

[Comly v. Bryan.]

and say, that there is a just and legal defence to the whole of the
demand in this case ; that the nature and character of said defence
are as follows, to wit : that said suit is instituted upon a draft drawn
by Rising & Harris, of Nashville, on deponent and accepted by him
for five hundred dollars ; that said draft was endorsed to the plain-
tiffs; that after the same was due, it was forwarded by them to
Douglass, Wood & Co., of Nashville; that said Douglass, Wood &
Co., were indebted to the drawers of said draft in a much larger
sum ; and further, said Douglass, Wood & Co., on the 15th of
January 1838, agreed with said Rising & Harris, to accept in pay-
ment for the same, any of our (their) endorsements or other liabili-
ties, or in such other mode as may be most convenient to you
(Rising & Harris), as will appear by the following extract from their
letter to Rising & Harris, to wit :

* Nashville, 15th January 1838.
Messrs. Rising & Harris, Philadelphia.

Gentlemen, your favor of the 8th is this moment received, and
has had our attention. We hold one only of your bills on S. Comly
for five hundred dollars, and will receive payment in any of our
endorsements, or other liabilities, or in such other mode as may be
most convenient to you.'

Deponent further saith, that in consequence of said agreement
between Douglass, Wood & Co. with Rising & Harris, the drawers of
said bill, that he the defendant, the acceptor of said bill, has settled
with Rising & Harris, the drawers thereof, and has no funds in his
hands belonging to them. SAM. COMLY."

" David B. Rising, one of the firm of Rising & Harris, being
duly affirmed, doth say, that he has read the foregoing affidavit of
S. Comly, and that the facts therein set forth are true.

D. B. RISING."

On the 6th day of August 1838, on motion of the plaintiff's
*9fi31 * a *torney, the court granted a rule on the defendant to show
' cause why the judgment should not be entered for want ol
a sufficient affidavit of defence.

On the argument of the above rule, the court allowed the defend-
ant to file an additional affidavit of defence ; which was done on
the 15th of September 1838, in the words following, to wit:

" Samuel Comly, the defendant, being duly affirmed, further
saith, that the plaintiffs called upon him for the payment of the
acceptance referred to in this deponent's affidavit, filed in this case
on the 13th day of June 1838. Deponent declined paying it,
stating that the drawers, Rising & Harris, had claims against the
holders of said draft prior to its coming into the hands of the
present plaintiffs, and to a much larger amount than said draft, and



1839.] OF PENNSYLVANIA. 263

[Comly v. Bryan.]

that the deponent himself has claims against the same parties, to
a much larger amount. That deponent next morning dalled at
the counting-room of the plaintiffs when they opened their account-
book and showed to deponent, an entry therein in which said
drafts had been charged back by them to the endorsers, by whom
it had been forwarded to them for collection. That said charge
was made prior to the arrangement referred to in deponent's prior
affidavit, and in that of D. B. Rising, at the suit of the same
plaintiff", which latter he prays may be considered as a portion of
this statement of defence.

SAM. COMLY."

In the case of Bryan v. Rising & Harris, the following affidavit
of defence was filed :

" David B. Rising, having been duly sworn according to law,
doth depose and say, that he has a just and true defence to the
plaintiffs' claim urged in this case ; the nature and character are
as follows : This suit is instituted upon a draft for five hundred
dollars, which was held, as deponent has learned since the same
was due, by Douglass, Wood& Co. of Nashville, Tennessee. These
holders agreed with the defendants to receive their liabilities which
they might hold, in payment of said draft, as will appear by the
following extract from their letter to the defendants, dated Nash-
ville, January 15th 1838.

" ' We hold one only of your bills on S. Comly, for five hundred
dollars, and will receive payment in any of our endorsements or
other liabilities, or in such other mode as may be most convenient
to you." At the time of writing this letter, said Douglass, Wood
& Co., then holding said bill, which is the one now sued out in this
case, were to a much greater amount, indebted to these defendants ;
and are still so indebted to them ; and defendants are willing and
offer to deduct this draft from their claim. The said draft if now
held and owned by the plaintiffs, must necessarily have been trans-
ferred *to them by Douglass, Wood & Co. since the date of 1-^9^
the above letter.

D. B. RISING."

By a copy of the protest fox non-payment, filed on the 1st of
October 1838, it appeared that the bill was presented for payment
on the 3d of June 1837, at the request of "the Girard Bank in
the City of Philadelphia, the holders of the bill," &c.

The District Court after argument, ordered judgment to be
entered in each case for want of a sufficient affidavit of defence, on
the 25th of September 1838.

Writs of error were then taken, and on the return of the records,
the following specifications were filed.



264 SUPREME COURT [Dee. Term,

[Comly v. Bryan.]

1. The court erred in deciding that the facts laid in the affi-
davits would not, if proved before a jury, have been a full defence
to this suit.

2. The court erred in deciding, that if such an arrangement
was made, as is stated in the affidavit, Comly was not discharged
thereby.

3. The court erred in deciding that the plaintiffs were entitled
to a judgment in this action, when there was a positive affidavit,
that those parties had parted with the possession of the instrument
on which this suit is brought.

4. The court erred in deciding that the said bill of exchange had
not been fully paid and satisfied to the real owners thereof.

5. The court erred in giving judgment in favor of the plaintiffs,
notwithstanding the defendants' affidavits filed.

Mr. G-uiUou, and Mr. McCall, for the plaintiffs in error.

These affidavits are to be liberally construed. The facts are
stated with sufficient precision. The word "forwarded," does not
necessarily mean for collection. Why should the bill have been
sent to Nashville for collection, when the acceptor resided here ?
The defendant has a strong equity for relief which can be obtained
here at law. He had claims against the real holders for a much
larger amount, which he ought not to be deprived of. The case of
Commonwealth v. Clarkson, 1 Rawle 291, decided that mutual
demands extinguish each other by operation of law, without actual
defalcation by the act of the parties. [GiBSON, C. J. That case
has been greatly misunderstood. It never was intended so to
decide ; and so we have said in an opinion delivered last summer
at Sunbury.] Certainly the case has been understood as stated ;
and the doctrine appears to have been carried out in Conrad v. Lan-
caster, 2 Rawle 324. [HUSTON, J. The case of a negotiable note
is *there alluded to and excepted.] It is not necessary that r*of?c:
money should be actually paid, to give a right of set-off. *-
Murray v. Williamson, 3 Binn. 135. If a note be endorsed in blank,
the court never inquires into the right of the plaintiff, whether he
sues in his own name or as trustee. Manson v. Lamb, 7 Cowen 176 ;
Wagoner v. Colvin, 11 Wend. 27.

Mr. ffeiskell (with whom was Mr. Hood), for the defendants in
error. The first affidavit is defective and insufficient. The second
contradicts the first. The defendant has not sworn that Douglass,
Wood & Co. were the owners of the bill. Then there is nothing
to show that the plaintiffs are not the real bona fide holders, and
if so the rule of law in respect to the defence attempted to be set
up is perfectly plain.



1839.] OF PENNSYLVANIA. 265

[Comly v. Bryan.]

The opinion of the court was delivered by

ROGERS, J. The affidavit of defence required by the second
section of the act of the 28th of February 1835, must be construed
most favorably for the plaintiff, as it is altogether probable that the
defendant will in all cases state the nature and character of the
defence, as strongly as the facts will justify. We can at any rate
make no intendments for him. The court have a right to expect
a clear and distinct averment of the fact on which the defence
must turn. 1 These suits, which we consider together, are brought
by the endorsees of a bill of exchange against the drawer and
acceptor. The defendants seek to set off a debt due from Wood,
Douglass & Co., to the drawer, on an allegation that the latter were
at one time and now are the holders of the bill. It is an essential
ingredient in the defence, that Wood, Douglass & Co. should have
been the owners as well as the holders or possessors of the bill.
But in this material allegation, the affidavits are singularly, and it
would seem, studiously defective. The first affidavit states, that
the suit is instituted upon a draft drawn by Rising & Harris of
Nashville, on the deponent, and accepted here, &c. ; that the said
draft was endorsed to the plaintiffs ; that after the same was due,
it was forwarded by them to Douglass, Wood & Co., &c. Now
what are we to understand from this part of the affidavit ? The
legitimate inference would seem to be, not that the latter, but the
plaintiffs, were the owners of the bill ; and we may also infer, that
the bill was sent by them in the ordinary course of business, to
their correspondents for collection at Nashville, where the drawers
resided. Unless this was believed to be so by the deponents, why
adopt language so well calculated to produce this impression, when
it was so easy to negative any such conclusion? In the supple-
mental affidavit which Comly was permitted to file, and in the affi-
davits of Rising & Harris, Wood, Douglass & Co. are spoken of as
the holders of the bill ; but it is remarkable, in connection with
the terms before used, *that it is not stated in what character r^^o^
they held it, whether as endorsees or owners, or as agents *
for collection. It is no unfair presumption that the defendants had
reason to believe that they held it in the latter capacity ; which will
satisfactorily account for the ambiguous language of the affidavits.
Comly states that he called at the counting-house of the plaintiffs,
when they opened their account books and showed to the deponent
an entry therein, in which the draft had been charged back by them
to the endorsees, by whom it had been forwarded to them for col-
lection. He omits to say how he obtained the information that it
was forwarded to the plaintiffs for collection by the endorsees, or
what perhaps may be more material, he neglects to inform us who
were the endorsees ; and it is unfortunate for the defence that it
1 See 6 Whart. 277.



267 SUPREME COURT [Dec. Term,

[Comly v. Bryan.]

could not be Wood, Douglass & Co., as their names no where appear
upon the bill. Unless the latter were the owners of the bill, their
offer not accepted by Rising & Harris to receive payment in any of
their endorsements or other liabilities, amounts to nothing, unless
it is satisfactorily shown that they had authority from their princi-
pals to enter into such an engagement.

Judgment affirmed.

Cited by Counsel, 6 W. & S. 231 ; 6 Casey 532 ; || 23 Smith 136.|



'267] *[PHILADELFHIA, FEBRUARY 15, 1840.}

Osborne' s Estate.



1. An assignment for the benefit of creditors directed the apportionment of
the fund to them according to a certain order, viz., 1st, to the payment of a
note for a certain amount to T. S. 2d, To the payment of a note for a certain
amount to J. V. 3d, To " pay and discharge $225, due and owing to A., C., B.
& Co.," by the assignor. It appeared on a hearing before an auditor, that A.,
C., B. & Co. claimed to be creditors for money lent, and on other accounts, the
only evidence of which was their book of original entries. They also held a
note for $265, upon which they claimed : Held, that the auditor was right in
allowing the payment of A., C., B. & Co. of the amount mentioned in the
assignment.

2. Where an assignment was made for the benefit of creditors, and the land-
lord of the assignor gave notice to the assignee of the amount of rent due,
before the sale or removal of the goods, and told him that he wished to have
it secured for him, which the assignee promised to do, as far as the law
allowed, it was held, that the assignee was justified in paying the amount
of rent to the landlord.

THIS was an appeal from a decree of the Court of Common
Pleas of Bucks County, made upon exceptions to the report of an
auditor appointed to distribute certain funds in the hands of Thomas
Sands, assignee of William W. Osborne.

The part of the assignment upon which the question before the
court below arose, was as follows :

"After deducting the reasonable costs and charges of the said
Thomas Sands, and expenses incident to this trust, shall and will
pay and discharge and indemnify Thomas Sands, of Solebury, in
order, first, by the payment of a certain note of two hundred dol-
lars, due and owing by the said William W. Osborne ; in the second
place, shall and will pay and discharge, secure and indemnify, Isaac
Vanhorn a note of one hundred and fifty dollars, due and owing
by the said William W. Osborne ; and in the third place, shall pay
and discharge two hundred and twenty-five dollars, due and owing
to A. C. Brittain & Co., by the said William W. Osborne ; and in
*2fi81 fc ^ e fourth pl ace > shall pay and discharge Samuel *Sutton,
J by the payment of all the notes to the Doylestown Bank of



1839.] OF PENNSYLVANIA. 268

[Osborne's Estate.]

Bucks County, remaining unpaid, upon which the said Samuel Sut-
ton is endorser, drawn in the name of J. & W. Osborne, a schedule
whereof is hereunto attached ; and also shall and will pay and dis-
charge, secure and indemnify the said Samuel Sutton, by the pay-
ment of all notes to the New Hope Delaware Bridge Company,
remaining unpaid, upon which the said Samuel Sutton is endorser,
drawn in the name of J & W. Osborne; a schedule whereof is
attached."

The auditor reported that payments ought to be made as
follows :
" Thomas Sands's note, with interest, .... $202 16

Isaac Vanhorn's note, balance due, . . . . 21 87

A. C. Brittain & Co., as preferred in assignment, . 225 00

Samuel Sutton, notes in Doylestown Bank, . . 300 00
do. New Hope & Delaware Bridge Co., . 425 00
Amount preferred, . . . $1174 03
Balance in assignee's hands, . 774 31
Deficiency in paying the

preferred creditors, . . 400 72

To this report Samuel Sutton, one of the said preferred credi-
tors, filed the following exception :

1. That the auditor erred in allowing and reporting to A. C.
Brittain & Co. two hundred and twenty-five dollars.

Daniel Parry, one of the general creditors, also excepted to the
auditor's report, as follows :

1. That the auditor erred in not allowing the landlord's
claim for one year's rent, due previous to the removal of the
goods of the assignor, which were subject to the landlord's dis-
tress.

2. That the auditor erred in not allowing the assignee's ac-
count for rent due said landlord, to the amount of seventy-five
dollars ; which claim was assented to previous to the removal of the
goods.

On the argument before Fox (Pres't), the following depositions
were read.

Thomas Sands, the assignee, testified as follows : " Osborne
lived in the house of Parry at the time I accepted the trust. After
I had appraised the goods of Osborne, and before the sale and
removal, Parry came to me and said he had seventy-five dollars,
which he wanted paid, and wanted me to receive it for him. I told
him, so far as the law allowed, I would receive it ; he appeared
satisfied, and allowed me to sell the goods. I laid the claim of
Parry before the auditor, and told him 1 expected it would be paid.



*Parry made no interference to stop the sale or removal of
the goods. I think I accepted the trust in April 1837. I



[*269



think the property rented for seventy-five dollars ; I believe Parry



269 SUPREME COURT [Dec. Term,

[Osborne's Estate.]

told me so. Parry did not ask me to pay the rent, while the goods
were on the premises, and before the sale. I don't know that he
distrained. All the request that he made was, that he wished me to
secure it for him. I told him at our first conversation, that I con-
sidered his claim valid."

The auditor, A. M. Griffith, Esq., was also examined, and testi-
fied as follows : " Samuel Brittain, one of the firm of A. C. Brit-
tain & Co., produced before me the claim of the firm. It was a
transcript from their book of original entries. I think a part of it
for cash lent, and a part for other matters charged to the assignor.
There was no other evidence of indebtedness produced at that time.
The greater part of the claim produced, was for cash entries taken
from their book, as I think. Brittain, at this time, the first meet-
ing, founded their claim to preferment under the assignment on the
cash entries in their book, as he supposed the assignor intended to
prefer them for the cash entries. I reported in their favor upon
the evidence of the cash entries. At the first meeting Brittain
mentioned a note they held against the assignor for a larger amount
than the sum for which they were preferred in the assignment. The
adjournment to the second day was because all the preferred credi-
tors requested it, to give them an opportunity to present their fur-
ther evidences of claim. The claim of Brittain for the cash entries
was objected to before me by Button's counsel. At the second
meeting Brittain produced a note dated March 28th 1835, payable
ten days after date, to A. C. Brittain & Co., for two hundred and
sixty-five dollars and fifteen cents, and signed by the drawer, Wil-
liam W. Osborne. The note was proved. Brittain 's counsel, at
the second meeting, said they claimed under the assignment. This
was in answer to the question of Button's counsel, as to whether
they claimed upon the cash entries in the book, or upon their note.
The book -account was not laid before me at the second meeting.
The note was produced to substantiate the preferment of Brittain's.
The transcript produced by Brittain exceeded the amount of their
preferment in the assignment. The claim at the second meeting
was not founded exclusively upon the note. I would have reported
upon the evidence of the cash account, even if the note had never
been produced. The evidence of the note strengthened and corro-
borated the evidence of the claims Brittain had in the assignment,
although there was evidence sufficient to induce me to report with-
out it. There were but two meetings of the creditors before me."

After argument, the court made a decree, that the rule granted
upon the exceptions filed by Sutton, be discharged :
*27fll *And in the case of Parry's exceptions, the report of
' the auditor was ordered to be altered in conformity with
the exceptions.



1839.] OP PENNSYLVANIA 270

[Osborne's Estate.]

Whereupon an appeal was taken by Samuel Sutton to this court :
and the following errors assigned :

1. That the court below erred in discharging the rule granted
upon the exceptions filed by said Sutton against the auditor's re-
port, allowing the claim of A. 0. Brittain & Co., to the amount of
two hundred and twenty-five dollars.

2. That the court below erred in decreeing that the auditor's
report be altered in conformity with the exceptions filed by Daniel



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) → online text (page 30 of 71)