Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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so, having locked the door, after the books, which might be used
that da} r , were taken out. "I think," says Mr. Macalester, "Cist
was in and out two or three times during the morning," Mr.
Macalester was in and out several times. At length, he found

*3rt71 ^ r- ^* 8t * t ^ iere ? wno to ld h h e ^ a d made arrangements
J with the Schuylkill Bank. On being told he had not much
time to spare in bank before three o'clock, he replied, he had his
money here, touching his pocket. Mr. Macalester saw his pocket
handkerchief, or part of it. Mr. Macalester, when Cist was going
out to the bank, thought the money was in several packages, and
in each pocket. When this occurred, the door of the fire-proof was
shut whether locked or not, does not appear.

On returning from dinner, Mr. Macalester found Cist sitting in
his office in distress ; he said he had lost a package of money
enclosing one hundred thousand dollars ; had missed it at the
Schuylkill Bank ; thought he had seen it at his boarding-house that
morning ; was positive he had seen it at Wheeling ; thought he had
put it in the fire-proof that morning. The cashier of the Schuyl-
kill Bank came in, and he, Cist, Mr. Macalester, and Mr. Toland,
searched the fire-proof, and did not find it.

The persons in Mr. Macalester's office were William Pleasants
(who was the principal person in the office), J. P. Pleasants, and
Michael Brady. The latter person, says Mr. Macalester, saw
the money put in he took out the books before Cist put in the
money.

The bank at Cincinnati was informed of the loss, and published
the following advertisement :

" $10,000 Reward. The above reward will be paid on the recov-
ery of a package containing one hundred thousand dollars, in post
notes of the Bank of the United States, of the denomination of five
hundred and one thousand dollars, which was lost at Wheeling, or
between that place and Philadelphia, between the 29th of January
and the 3d of February. The package was made up at St. Louis,
and, addressed on the outside, to 'William S. Hatch, Esq.,' cashier
of the Commercial Bank of Cincinnati, and was forwarded without
being opened, from the Commercial Bank to Philadelphia. The



1341.] OF PENNSYLVANIA. 387

[Commercial Bunk of Cincinnati v. Plcasants,]

loss is supposed to have taken place after the arrival of the bearer
at Wheeling, and before he reached Philadelphia, but may possibly
have occurred on his arrival at the latter city.

The above reward will be paid on the delivery of the said
package to Charles Macalester, Esq., Philadelphia ; to John Sny-
der, Esq., cashier of the bank of Pittsburgh ; to John List, Esq.,
cashier of the N. W. Bank of Virginia, at Wheeling ; or to the
cashier of the Commercial Bank of Cincinnati, and no questions will
be asked.

Measures have been adopted to stop the payment of the notes ;
the descriptions of them have been extensively circulated ; they will
be of no value except to the owners.

If convenient to the finder to deliver the money, he is au-
thorized to deduct the reward, and remit the balance, by mail, to
the bank.

J. S. ARMSTRONG, Pres't.

Commercial Bank of Cincinnati,
March 17, 1836."

*Matters remained thus until the latter end of August,
1836, at which time the plaintiff below, about noon, on
coming out of the back room, met H. Toland, Jr., who was coming
from the street into the front room. Mr. Toland had been a short
time with Mr. Macalester, to acquire some acquaintance with busi-
ness, but had no salary. "Mr. Pleasants told me," says he, "to
come into the back room, and he unlocked the fireproof (it was
our custom to leave the fire-proof unlocked) ; he then told me to
stoop down and look ; I did so ; there was a good deal of sand at
that time on the floor of the fire-proof, which had been built at that
time about twelve months. I knelt down to look, but having just
come in from the light, I could distinguish nothing but a piece of
brown paper against the wall, and another piece on the sand. I
made some hasty remark, and he told me to look again, when I
made out the direction on the paper against the wall to be 'William
S. Hatch, Esq.,' and it was marked on the corner '$100,000.' I
exclaimed it was the lost package, and took it out, at which Pleas-
ants said something disapproving of my touching it. I then left
the package in the office, and went over for my father, who had a
store, at that time, No. 64 Dock street, but he was not in ; he
came into Mr. Macalester's office soon after, and he and Mr.
Pleasants took the package, as I understood from them, to the
Girard Bank, and deposited it to the credit of the Commercinl
Bank of Cincinnati, and took the certificate of deposit (I think).
Mr. Macalester was out of town at the time the package was found."
He then goes on to state, that he was not in the employ of Mr.
Macalester when the package was left, and only knows of it bv



388 SUPREME COUKT [March Term,

[Commercial Bank of Cincinnati v. Pleasants.]

report; that no other person than myself and Mr. Pleasants was in
the back room when he saw the paper, and took it up. Michael
Brady, a boy in the employ of Mr. Macalester, was in the front
room.

Mr. Lewis, cashier of the Girard Bank, proved that the " bundle
or package was brought to the bank, and, after some conversation,
opened, counted and deposited to the credit of the Bank of Cincin-
nati, and absorbed long since in their business with us."

At the time the package was carried to the Girard Bank, and
before it was opened, something was said to Mr. Pleasants about
retaining the package until he had claimed the reward, or made up
his mind whether he would claim it. To this he made no other
reply than the request that it should go at once to the credit of the
Commercial Bank of Cincinnati.

The amount of the charge of the judge of the District Court was
distinctly that the plaintiff is entitled to recover.

In forming an opinion on the meaning and effect of a proposition
expressed words spoken or written, there is seldom any more required
than to know the circumstances in which the party was placed, the
object to be obtained, and the compensation proposed to be given :
metaphysical, and logical, and, unless in professional matters, tech-
nical acumen is not required, and sometimes misleads. The word
*ooq-i *lost, like most other words, has a different signification ac-
J cording to the other words in connection with which it is used,
and the subject to which itis applied. It is often used so that it is cor-
rectly applied on one state of facts, and not correctly applied in a dif-
ferent state of facts. Most men, who have transacted much business,
have at times, looked for a paper, and used the expression that it was
lost ; if out of the person's possession, and not in the possession
of some other to whom he gave it, he will say it is lost ; if he
afterwards finds it in his own possession, or that of some person to
whom it was properly given, or in some place where it was
properly put, he says it was not lost, it was overlooked or mislaid.
An article in the possession of the owner, or of a person to whom
he gave it, or in a place where he or that person put it, and where it
remains safely, is not lost.

So the word recover has its meaning affected by circumstances
under which it is used, or the connection in which it is used.

Evidently, the reward was offered under the impression that Mr.
Cist had dropped the package, or that it had been taken out of his
possession without his knowledge, in which case the words lost and
recover would be proper.

Mr. Cist was the agent of the bank. If he or his wife, when he
got home, had found the package in his trunk, enclosed in another
package of papers, or enveloped in some article of clothing, Mr. Cist
being an honest man, it would never have been lost only mislaid
or overlooked.






1841.] OF PENNSYLVANIA. 389

[Commercial Bank of Cincinnati v. Pleaaants.]

If, by some mistake, William S. Hatch, instead of giving this
package to Mr. Cist, had put it in the safe at Cincinnati, no one
would have known where it was, but it would not have been lost,
though it would have been mislaid, and no one in the bank have
known where it was for some weeks or months ; and neither
Mr. Hatch nor any officer of the bank could have become entitled
to the reward by seeing it ; for it had not been lost, it was not
recovered ; and, as it had been in the possession and was in the
possession of Mr. Hatch, no one would deliver it to him, in the
fair import of the terms, "on the delivery of it to William S.
Hatch," &c.

There seems also some misconception as to the situation of Mr.
Macalester in this business. He was not the agent to put out the
money, and he refused to take charge of it until it was disposed of.
He was, therefore, in no way answerable if never seen more. But
he was the agent to receive it for the bank if it had been lost. On
the money being put into his possession, by a person who had
found it or stolen it, the reward would have been earned ; but if,
without his knowledge, it had been overlooked in his fire-proof,
and had never been out of it, and Charles Macalester himself had
first seen it, it would never have been lost, never recovered, and
never could be said to be delivered to Charles Macalester, in whose
possession it had been all the while, though without his knowledge.
The advertisement *was not written for such a state of facts, r*'jqo
and Mr. Macalester never would have claimed the reward ; ^
and if he had, would not have recovered it. Now, William Pleas-
ants, the principal man of business in the office, was in the place
of Charles Macalester, and for the purpose of all official business,
was Charles Macalester. Any stranger having found this pack-
age where it had been really lost, if such had been the case, who
had brought it to the office, and delivered it in the office to William
Pleasants, in the absence of Mr. Macalester, and taken his receipt
for it, could have recovered the reward from the bank. On the
supposition, then, that it was always in the fire-proof of Mr. Mac-
alester, it was never lost, only overlooked ; it was not, could not be
delivered to Charles Macalester, it was always in his possession,
and the case provided for by the advertisement never had occur-
red, and never could occur; for I repeat the accidental seeing
it by the plaintiff was the same as if Mr. Macalester had first
seen it.

The case was argued as if it was certain that the package had
never been out of the fire-proof of Mr. Macalester. If it had been
taken from that place, and returned from compunction of conscience,
or fear of detection, it would not make the case of the plaintiff below
better.

Mr. Macalester was, by the advertisement, appointed by the bank
6 WHARTON 25



390 SUPREME COURT [March Term,

[Commercial Bank of Cincinnati v. Pleasants.]

its agent to receive the package. On the delivery of it to him, the
reward became due. But it was not delivered to him. It was dis-
covered in the case in his office, that is in his possession, and placed
beyond his control. I have come to the conclusion, that while in
his fire-proof it was not lost, but if the broadest meaning of lost is
to be adopted, and thus making it lost while there, and the claim is
made by one who did nothing more than see what others overlooked,
the principle must be carried through, and it ought literally to have
been delivered to Mr. Macalester as one of the four persons named.
This was not done, but it was taken out of his power, and delivered
where he had no control over it. He who claims a large sum
for doing what required no exertion of ingenuity or labor of
body, but solely on the ground of the literal performance of what
was required in the proposal, must show that he performed every
part, and not that he did one of the things required, and omitted
or went contrary to the other requisitions, or some of them. The
judgment of the court below is reversed, and a venire de novo
awarded.

ROGERS, J., dissented.

Judgment reversed, and a venire de novo awarded.

|| The eaptor of stolen property, for which a reward is offered, has a lien
for its amount: Gumming v. Gann, 2 Smith 484. ||



*391] *[PHILADELPHIA, APRIL 3, 1841.]

Ash against McGill.

When the recovery in ejectment is of an undivided part of the premises,
the sheriff must put the plaintiff into actual possession thereof along with
the defendant.

A JUDGMENT had been obtained by the plaintiff in an action of
ejectment against the defendant, for an undivided, fifth part of a
house and lot of ground in the Northern Liberties. 1 The plaintiff
sued a writ of possession to March term 1841, which was returned
executed. The sheriff had put the plaintiff into actual possession of
the house and lot, along with the defendant's tenant in possession ;
and the plaintiff was expelled therefrom by the tenant in possession,
and others.

Mr. G. Ingersoll, for the plaintiff, now took a rule on the
defendant to show cause why an alias writ of possession should not
1 DawBon v. McGill, 4 Whart. 230.



1841.] OF PENNSYLVANIA. 391

[Ash v. M'Gill.]

be issued under the 1st section of the act of 1st February 1834,
being u a supplement to the act relating to actions of ejectment."

Mr. Q-oodman, for the defendant.

The recovery of the plaintiff being of an undivided fifth of the
house and lot, actual possession along with the defendant cannot be
given by the sheriff consistently with the defendant's possession of
his four-fifths. It amounts to an ouster of the defendant of a
portion of his unquestioned right of possession. The defendant
offered the plaintiff to account to him for a fifth of the proceeds of
the annual value of the premises : the plaintiff can have his action
of partition, and of account

PER CURIAM. Let the alias habere facias possessionem be
issued.



*[PHILADELPHIA, APRIL 3, 1841.] [*392

Yaughan and Others against Barclay.

IN EQUITY.

1. This court has jurisdiction of a bill brought to compel the conveyance,
by a trustee residing within the state, of the outstanding legal estate in lands
situate in other states.

2. In 1795, R. M., and others, conveyed to J. N. and J. B., certain lands
in Virginia, Kentucky, North Carolina, South Carolina and Georgia, in
trust for the shareholders of an association called " The North American
Land Company." In 1807, a majority of the shareholders resolved that
J. N. and J. B., the trustees, should convey to certain persons named, for
the purposes of sale, &c., and on making such conveyance, should be held
harmless and blameless for any acts, &c. In 1808, J. N. conveyed all his
estate in the land, pursuant to the agreement ; but J. B. refused to convey,
and died in 1816, having survived J. N. ; and leaving as his heir-at-law, J.
M. B.; who, on being applied to, refused to convey, alleging that he did not
know how far the trust had been accepted and acted upon ; that he had never
accepted the trust; and that he had by an instrument under seal, which was
recorded, renounced the trust, and declared that he would not intermeddle
with it. On a bill against J. M. B., to compel the conveyance of the legal
estate, there being some evidence that J. B. accepted the trust, a decree for
a conveyance was made.

THIS was a suit in equity, instituted by John Vaughan, Robert
Porter, James Dundas, Henry Nixon and Benjamin Kugler, as
managers of" The North American Land Company," against John
M. Barclay.

The bill set forth, that by certain articles of agreement, dated
the 20th of February 1795, between Robert Morris, John Nich-
olson, James Greenleaf, and those who should become purchasers



392 SUPREME COURT [March Term,

fVaughan v. Barclay.]

of shares in the North American Land Company, an association
was formed, styled the North American Land Company.

That the stock of the said company consisted of six millions of
acres of land in Pennsylvania, Virginia, Kentucky, North Carolina,
South Carolina and Georgia, the titles to which were to be vested
in Thomas Wilting, John Nixon and John Barclay, in trust, to
convey the same according to the said articles of agreement.

That on the oth of March 1795, Robert Morris, John Nicholson,
and James Greenleaf, by five several deeds, conveyed unto the said
*oqq-| *Thomas Willing, John Nixon, John Barclay, and to the
-1 survivors or survivor of them, and to the heirs of such sur-
vivor, large bodies of land in Virginia, Kentucky, North Carolina,
South Carolina and Georgia, in trust, to hold the same agreeably
to the said articles of agreement.

That Thomas Willing refused to accept the said trusts ; but that
they were accepted by John Nixon and John Barclay.

That by the 28th article of the agreement establishing the com-
pany above referred to, it was provided, that in case it should be
found necessary to alter the said articles, the same might be done
on certain conditions therein stated.

That in conformity with the provisions of the said 28th article, it
was agreed by a constitutional majority of the shareholders in the
eaid company, representing 17,132 shares, at their annual meeting
on the 31st of December 1807, as follows :

" 1st. That all the business and concerns of the North American
Land Company shall henceforward be managed and conducted by
Henry Pratt, John Ashley, John Vaughan, Robert Porter and John
Mjller, Jr., their survivors, or a majority of such survivors, who
shall have full, unlimited and uncontrolled powers to barter, sell,
or convey all or any part of the land or property of the said company,
on whatever terms and conditions they may judge fit ; and also to
act in all possible cases regarding the affairs of the company as they
may deem most expedient and proper.

*' 2. That John Nixon and John Barclay, the trustees of the com-
pany, shall have power to transfer or convey, and shall transfer and
convey to the said Henry Pratt, John Ashley, John Vaughan, Robert
Porter and John Miller, Jr., as aforesaid, by deed or quit claim, or
other competent conveyance, all the lands and property of the com-
pany vested in them, either in law or equity, for the benefit of the
company, and also all shares of stock of the company that may have
been transferred to them, or in their names, under the 23d article
of the agreement aforesaid. And that the said John Nixon and John
Barclay shall, on making such competent conveyances or transfers,
forever after be held harmless and blameless for any and all neglects
or pretended neglects, and for any and all doings which may have
happened or occurred while they were considered the trustees of the
company."



1841.] OF PENNSYLVANIA. 393

[Vaughan v. Barclay.]

That on the 27th of April 1808, John Nixon in pursuance of the
articles of agreement, establishing the company, and of the above
stated amendments thereto, and reciting the same, conveyed to the
said Henry Pratt, John Ashley, John Vaughan, Robert Porter and
John Miller, Jr., and their heirs as joint-tenants, and not as tenants
in common, all his estate in the lands aforesaid, in trust for the
said company, agreeably to the said articles of agreement, and
the above-recited amendments thereto.

That John Vaughan and Robert Porter, then surviving Henry
*Pratt, John Ashley and John Miller, Jr., on the 30th of r-*nq
April 1838, conveyed all the land aforesaid unto Benjamin L
Tilghman, in trust to reconvey to the complainants.

That on the 1st May 1838, Benjamin Tilghman conveyed the
said lands to the complainants, and the survivors and survivor of
them in trust, for the same uses as the said John Vaughan and
Robert Porter had, and held the same :

That the said John Barclay refused to convey the said lands to
the said Henry Pratt and others, in pursuance of the above stated
articles of agreement and amendments thereto.

That the said John Barclay died on or about the 8th of August
1816, having survived the said John Nixon.

That John M. Barclay is the eldest son and heir-at-law of the
said John Barclay, and that upon him as such, the said trust
descended.

That the complainants had requested the said John M. Barclay
to convey to them the estates so held in trust by him, according to
the above stated articles of agreement, and amendments thereto,
but that the said J. M. Barclay had refused so to convey to the
complainants ; alleging as a reason for such refusal, that he did
not know how far the trust was accepted and acted upon ; that he
had never accepted the trust ; and that by an instrument under
seal, dated 9th April 1832, he had renounced the trust, and
declared that he had not, and would not intermeddle with the
same ; whereas the complainants expressly charged the contrary,
and averred that the trust was cast upon the said John M. Barclay
by act of law.

That the declaration of the 9th of April 1832, was made without
their consent, and that notwithstanding the same, it was and is the
duty of the said John M. Barclay to convey to them the said legal
estate, according to the draft of a certain deed by them prepared for
that purpose, and of which a copy was annexed; to execute which
conveyance, or any other conveyance of the said legal estate, the
said John M. Barclay had refused.

That such refusal worked manifest injury to the complainants,
by preventing them from conveying a legal title to the lands, and
supporting suits therefor, and was contrary to equity and good
conscience.



394 SUPREME COURT \March Term,

[Vaughau v. Barclay.]

The bill then prayed relief, &c.

The answer stated that the respondent had understood there was
an association styled the North American Land Company, in which
the late Robert Morris, John Nicholson and James Greenleaf were
interested ; but that he had no knowledge of the articles of agree-
ment of 20th February 1795, mentioned in the bill, and neither
admitted nor denied the same, but prayed that, if material to his
interest, they might be proved by the complainants.

That he had no knowledge whether the capital stock of the com-

*qqe-i pany *was to consist of such bodies of land, and to be vested

- in trustees in such manner, as was mentioned in the bill ; and

neither admitted nor denied the same ; but prayed that, if material

to his interest, the same might be proved.

That he had understood and believed that there was some
conveyance made by the said R. Morris, J. Nicholson and J.
Greenleaf, to the said Thomas Willing, John Nixon and John
Barclay.

That he believed and admitted that Thomas Willing refused the
trust, and that John Nixon accepted the same.

That he had no knowledge of the transactions of the shareholders
of the said company, and neither admitted nor denied the same ;
but prayed that, if at all material to his interest, the same might
be proved.

That he admitted the conveyance of the 27th of April 1808,
from John Nixon to Henry Pratt, John Ashley, John Vaughan,
Robert Porter and John Miller, Jr. ; the deaths of Henry Pratt,
John Ashley and John Miller, Jr. ; the conveyance of the 30th
of April 1838, from John Vaughan and Robert Porter to B. Tilgh-
man ; and the conveyance of 1st May 1838, from B. Tilghman to
the complainants, as stated in the bill.

That he further admitted that John Barclay never made any
conveyance to the said Henry Pratt, John Ashley, John Vaughan,
Robert Porter and John Miller, Jr.. or either of them.

That he admitted the deaths of the said John Nixon and John
Barclay as stated in the bill ; and that he is the eldest son of the
said John Barclay.

The answer further stated, that in 1818 or 1819, the respondent
was called upon by the said Henry Pratt and James Greenleaf,
when they stated to the respondent that they wished him to convey
the trust property which, they alleged, had vested in the respond-
ent as heir-at-law of his father, the said John Barclay, to the said
Henry Pratt, and some other persons whose names the respondent
did not recollect, but who were stated to be managers of the said
North American Land Company ; that the respondent having con-
sulted counsel, agreed to make a conveyance of any trust or pro-
perty that might have vested in him, to the said Henry Pratt and



1840.] OF PENNSYLVANIA. 395

[Vaughan r. Barclay.]

the other persons stated to be the managers of the said North
American Land Company, provided the said Henry Pratt and the
other persons to whom the respondent was requested to make
the said conveyance, would contract and agree to save and keep
the respondent harmless and indemnified, for and on account
of the said conveyance ; with which request the said Henry Pratt
refused to comply ; nor was any indemnity offered by any other



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 44 of 75)