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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 6) online

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terms of the protest.]

The objections to this protest were.

1. That there are blanks for the name of the holder or person
presenting the draft for acceptance.

2. The proof of notice given is the notarial signature and seal ;
whereas it is not the duty of the notary, and if he undertake to do
it, and does do it as agent, it ought to be proved by his oath in
court, or deposition legally taken.

3. It ought to have been directed to Clements & Hall, at Mont-
gomery, Alabama, and not to them at Philadelphia.

And 1st; it is laid down, that whoever is the holder of a bill,
may present it for acceptance and have it protested for non-accept-
ance; though the person who protests for non-payment must be
able to show a right to receive payment. All the forms of protest
name the person at whose request the bill is presented ; and there
might be reasons why a bill could not be accepted without knowing
who presented it ; as if the drawer had given notice by letter to the

414 SUPREME COURT [March Term,

[Fitler v. Morris.]

drawee, that a bill on him was lost or stolen. On the other hand,

as this bill was payable to Morris, and had no endorsement, the

*41VI * notar y m ig nt De taken as presenting it for him. This

J point was not urged, and I give no conclusive opinion on it.

2. Proof of notice. There are cases where notice is not neces-
sary. We have no evidence that this is such a case prima facie
it is necessary.

In this state, it seems to be settled that giving notice is a notarial
act, and a certificate by the notary evidence that it was given.
This evidence is liable to be rebutted ; but in point of fact, through
most, if not all of the states, the notary is called into court and
proves the notice, as was done in Stuckert v. Anderson, 3 Whart.
116. Generally, if not everywhere, out of the operation of our act
of assembly, the law is otherwise. In Morgan v. Van Tryon, 2
Johns. 204, giving notice of protest is said to be no part of the
duty of a notary. It would seem that the notary may be con-
sidered as the agent of the holder, and notice by him good as notice
from the holder. But he proves it by his oath. Church v. Barlow,
9 Pick. 547. The certificate that notice was sent, was therefore
no sufficient evidence of it. 1

3. The notice was of no effect, being directed to Clements &
Hall at Philadelphia, when they resided at Montgomery, Alabama.

It is no excuse that the notary may have been ignorant of their
place of residence. The payee and holder of the bill, by his own
evidence in the cause, did know, and if he intended the notary to
act as his agent, he was bound to tell him to what place to send his
notice; even some inquiry and answer not satisfactory, will not
justify a notary or party in directing to a wrong place. 3 Whart.
116. The editor of the 8th American edition of Chitty on Bills,
has added an appendix, in which, under title Demand and Notice,
from page 809 to 816, many American cases are collected, and
those on this subject scattered over the whole. The result is well
expressed in page 812. 7 Halsted 268. Where the holders know
the place of residence, it will not to do allege ignorance on this
point in the notary or his clerk, who in giving notice is so much
the plaintiffs' agent, that what they know, they are bound to inform
him. See also 7 Louisiana Rep., page 814.

These things were all received in evidence under the notarial
seal; and with them the plaintiff closed his testimony, and the
plaintiff recovered. There was error in admitting this proof of
them, and in considering the proof of any effect.

It is very apparent that on another trial, many matters will be,

1 See 4 Whart. 113 ; 4 W. & S. 510; 2 Barr 356 ; 9 Harris 506 ; 2 Casey
257 ; 6 Id. 142; 14eh Dec. 1854, g 2, P. L. 724, Purd. Dig. 759, | 12.


[Fitlerc. Morria.] ;

or possibly may be proved ; it may appear there was no necessity
for notice ; but 1 shall not indulge in conjecture.

Judgment reversed ; and venire de novo awarded.

Cited by counsel, 6 W. & S. 508 ; 2 Barr 86 ; 3 Id. 480.

Cited by the Court, 7 Barr 437 ; 3 Casey 252.

|| The holder of a bill must use due diligence to find the residence of the
drawer, to notify him of its dishonor. The place where the bill is drawn is
not taken to be the residence of the drawer for this purpose : Fisher v. Evans,
5 Binn. 541 ; Browning v. Armstrong, 1 W. N. C. 347. [|

"[PHILADELPHIA, APRIL 22, 1841.J [*416

Commonwealth against Sparks and Others.


1. The court refused to give a preference to the argument of a demurrer
to a plea in quo warranto ; though the office was an annual one.

2. In a quo warranto against three, to show why they claimed to exercise
the office of directors of a bank, one of the defendants disclaimed, and judg-
ment of ouster was given against him. The other two pleaded to issue :
Meld, that this was not a case within the 13th section of the act of the 13th
of April 1840, authorizing the court, in case judgment of ouster is given, to
decree that the office shall be held by the relators, &c.

IN this case, which was a quo warranto to Thomas Sparks, Hugh
O'Donnel, and D. Henry Flickwir, to show by what authority they
claimed to exercise the office of directors of the Southwark Bank.
Mr. F. W. Hubbell applied to the court to fix a special day for
the argument of a demurrer to the plea of two of the defendants,
Sparks and O'Donnel. He said that Flickwir, the other defendant,
had disclaimed, and a judgment of ouster had been given against
him. This was an annual office : and if the opinion of the court
upon the points raised by the demurrer could not be obtained until
the cause was reached in its order on the list, the term of office
would probably expire.

THE COURT having declined to make any order for a special
hearing of this case, Mr. Hubbell applied* for a rule to show
cause why Mr. B. Tevis should not be substituted for Mr. D. H.
Flickwir, against whom judgment of ouster was given. He referred
to the acts of the 14th of June 1836, and 13th of April 1840

The opinion of the court was delivered by
*ROGERS, J. The commonwealth, on the suggestion of r^-iy
B. Tevis prays judgment of ouster against the respondents, '

417 SUPREME COURT [March Term,

[Commonwealth v. Sparks.]

and for a further decree as to the title of the relator, and two others,
Walter Thompson and Robert McMullin. Two of the respondents
plead to issue, and the cause is set down for argument on demurrer.
One having disclaimed, a judgment of ouster is entered against
him. The counsel for the relator moves the court that a day should
be assigned for the argument of the demurrer ; but the court, believ-
ing this is not a case which is entitled to any preference, refuse the
motion. The direction in the 9th section of the act of the 14th of
June 1836, refers to the pleadings. It is directed in that section
that the court shall make such orders in respect of the pleadings as
may expedite the cause ; but there is nothing which exempts the
writ of quo warranto from the ordinary rules. Having failed in
this application, " the relator moves for a rule to show cause why
B. Tevis should not have the office of director of the Southwark
Bank, in the place of D. H. Flickwir, against whom the judgment
of ouster has been given." The motion is made on the authority
of the 2d sect, of the act of the 13th of April 1840. If Flickwir,
against whom judgment was rendered, was the only respondent, it
would be the duty of the court, under that act, to investigate the
legality of the election of the relator. But the complaint is against
three, and the judgment against one only, the others having pleaded
to issue, which is still pending and undisposed of. We therefore
think, we cannot determine the right of the relator until there is a
final disposition of the complaint against all. "If judgment of
ouster is given against the party in possession, the court may decree
that the offices shall be held by the person or persons who they
shall be of opinion is duly elected." But who is the party in pos-
session within the meaning of the act? Not one, but the three
against whom the complaint is made ; and until judgment against
all, it would be premature to enter into an investigation of the right
of any. This we think is the reasonable construction of the act ;
and that any other construction would lead to embarrassment and
difficulty. We are bound to determine not only the right of the
relator, but of two others, who, it appears on the record, assert
they were duly elected. For, although judgment of ouster is
entered against one, it does not follow that the relator is elected,
but the right of the office may be in one of the others. And
the right would be passed upon without an opportunity of a

It is nowhere admitted in the pleadings, that the relator is enti-
tled to the office ; on the contrary, his title, as well as the others,
is explicitly denied. And although on the hearing the relator
may be entitled to judgment, this is not the time to enter into this

Motion refused.


*[PHILADELPHIA, APRIL 24, 1841.] [*418

King and Another against Richards and Another.


The defendants were common carriers of goods between New York and
Philadelphia, and had signed a receipt for certain goods as received of A.,
which they promised to deliver to his order. In trover by the indorsees of
this paper, who had made advances on the goods, it was held, that the defend-
anta might prove that A. had no title to the goods ; that they had been
fraudulently obtained by him from the true owner, and that upon demand
made, they had delivered them up to the latter.

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

This was an action of trover in the court below, brought by
Benjamin W. Richards and Joseph Bispham, trading under the
firm of Richards & Bispham, against Charles King and Francis
King, trading as C. & F. King, to recover the value of 100 bags
of coffee.

The defendants pleaded the general issue ; upon which the cause
came on for trial before Stroud, J., on the 10th of April 1839,
when the plaintiffs called one George B. Jones, who testified as
follows :

"I am in the employ of Richards & Bispham; was so in 1836;
this is the signature of L. Clapier Heyl & Company. [Bill of
lading exhibited to witness.] 1 called with this bill of lading on
the defendants, on the 22d or 23d of November 1836, for the pro-
duction of the coffee. I saw one of the Messrs. King Mr. F.
King, I think ; he said that 80 bags of the coffee had been taken
away ; I tendered the freight, if not at that time, a day or two
afterwards; no portion of the coffee was delivered; the average
weight of Cuba coffee of this description is 160 Ibs., price 12J

* Cross-examined. "The advance was $1744 in a note, r+^-iq
at 60 or 90 days."

Examined in chief. " The advance was made 21st November
1836; [notes produced;] these are the notes; this is the bill of
lading ; [bill of lading produced ;] Mr. Walsh was the partner who
endorsed it."

The bill of lading and the notes were then read.

The following is a copy of the bill of lading :

Marks & ) " ^ team ^ ow ^ oat Company : Merchants' Trans-
Vportation Line between New York and Philadelphia,
. I T\ i JT>-* n if i_

) via Delaware and liantan Canal, for the conveyance

419 SUPREME COURT [March Term,

[King . Richards.]

of merchandise, specie, baggage, &c., and insurance effected when-
ever required on any package to its full amount of value."
" M rked I ^i^ er an( ^ Bancker, No. 16 Washington


Proprietors. > St., or No. 32 South Front St.. New York.
( C. & F. King, 19 S. Wharves, Philada."

" Received from L. Clapier Heyl & Co., on board the tow-boat
Orb, the following goods, viz., one hundred bags coffee marked and
numbered as per margin, which we promise to forward [danger of
navigation, fire, breakage, leakage and other unavoidable dangers
and accidents excepted ; and not holding ourselves responsible if
lost, stolen or damaged beyond the value of two hundred dollars
per package, unless insured by mutual agreement, and no damage
allowed without being notified twelve hours after delivery] to order
in Philadelphia, upon presenting this receipt at our office, No. 19
South Wharves, and paying freight therefor, 12 cents per 100 Ibs.
For the proprietors A. H. HIGHAM."

"Contents and conditions unknown." Endorsed "L. Clapier
Heyl and Company."

" I tendered a check for $40 to cover freight ; had no bill of
freight; made no question about freight."

The counsel for the defendants then called one Daniel Curtis, Jr.,
and offered to prove by him, that the coffee mentioned in the receipt
or bill of lading signed by the defendants, was the property of John

B. Lasala, a merchant of New York, and was so at the time the
receipt was signed : that before the defendants had any notice of
the assignment of the bill of lading to the plaintiffs, the coffee had
been claimed by the said John B. Lasala, as his property, alleging
that the same had been fraudulently taken out of his possession, by
the said L. Clapier Heyl & Co., and that the defendants had deliv-
ered the coffee to Lasala ; and that defence in this suit was now
taken by him. They further offered to prove by the same witness,
that the coffee had been agreed to be sold by Lasala, to the said L.

C. Heyl & Co., upon certain conditions being complied with ;
that the said conditions had not been complied with ; that
*4.901 there had been no *delivery of the coffee by the said Lasala

* to the said L. C. Heyl & Co., nor was possession of the
coffee parted with by the said Lasala ; that the said L. C. Heyl &
Co. fraudulently took possession of the same ; that the whole trans-
action on the part of L. C. Heyl & Co. was fraudulent, and that by
the use of ordinary diligence, the plaintiffs might have ascertained
all these facts before they advanced money on or took an assignment
of the bill of lading.

To which testimony, the plaintiffs' counsel objected ; and the
judge sustained the objection and rejected the testimony ; to which
the counsel for the defendants excepted.


[King v. Richards.]

The judge then instructed the jury, that the defendants could not
dispute the plaintiffs' title ; that it was like the case of landlord
and tenant, or mortgagor and mortgagee ; that it might be assumed
that the sale by Lasala to Heyl & Co. was conditional, and the
conditions not complied with ; that there had been no delivery of
possession of the coffee. This would make no difference ; that in
this suit such facts would have no operation ; and that the jury must
find for the plaintiffs.

The defendants' counsel excepted to this opinion ; and the jury
having found for the plaintiffs the value of the coffee, this writ of
error was taken, and the following errors were assigned :

1. That the court below erred in rejecting the testimony of
Daniel Curtis, a witness produced on the part of the defendants
below, to prove the facts set forth in the bill of exceptions.

2. That the judge erred in instructing the jury that the defend-
ants could not dispute the plaintiffs' title ; that it was like the case
of landlord and tenant, or mortgagor or mortgagee ; that it might
be assumed that the sale by Lasala to Heyl & Co. was conditional,
and the conditions not complied with ; and that there had been no
delivery of possession of the coffee ; this would make no difference ;
that in this suit such facts would have no operation ; and that the
jury must find for the plaintiffs.

Mr. Davis and Mr. James S. Smith, for the plaintiffs in error,
cited Story on Bailments 371, 582 ; Taylor v. Plumer, 3 Maule
& Selw. 562 ; Wilson v. Anderton, 1 Barn. & Ad. 450 ; 20 E. C.
L. R. 426; Hart v. Allen, 2 Watts 117; Hand v. Baynes, 4
Whart. 215 ; Berkley v. Watling, 7 Ad. & Ell. 29; 34 E. C. L. R.
22 ; Haddon v. Parry, 3 Taunt. 303 ; Barrett v. Rogers, 7 Mass.
297 ; Forrester v. Dodge, 12 Id. 565 ; Ogle v. Atkinson, 5 Taunt.
769 ; 1 E. C. L. R. 255 ; Abbott on Shipping 381 et seq. ; 2
Leigh's Nisi Prius 483 ; Starkie's Evid., pt. IV. 308 ; Maryland
Ins. Co. v. Ruden, 6 Cranch 338 ; Del. Ins. Co. v. Hogan, 3 Wash.
C. C. Rep. 5.

*Mr. Meredith, for the defendants in error, cited 3 Esp. [-#4.01
114 ; Hawe v. Watson, 2 Barn. & Cres. 540; 9 E. C. L. L '
R. 170 ; Miles v. Cattle, 6 Bingh. 743 ; 19 E. C. L. R. 219 ;
Stonard v, Davis, 2 Camp. 343 ; Dyer v, Pearson, 3 Barn. & Cres.
38 ; 10 E. C. L. R. 13 ; Copland v. Bousquet. 4 Wash. C. C. Rep.
596 ; Parker v. Patrick, 5 Term Rep. 175 ; Irving v. Motley, 7
Bing. 543 ; 20 E. C. L. R. 238 ; Mackinley v. McGregor, 3
Whart. 396 ; Burnside v. Miskelly, 5 Watts 506 ; Haggerty v.
Palmer, 6 Johns. Ch. 437.

The opinion of the court was delivered by

KENNEDY, J. The only question raised in this case is, whether

421 SUPREME COURT [March Term,

[King v. Richards.]

the defendants, the bailees of goods delivered to them as common
carriers, to be transported from the city of New York to the city of
Philadelphia, ought to be permitted to show, in an action brought by
the bailors or their assignees, that the bailors had no right to the
goods whatever : that they had obtained the possession of them
fraudulently from the true owner without his consent ; and that
upon demand made of the goods by the latter, the defendants
below, who are the plaintiffs in error here, had delivered them to

In Rolle Abr. 606, tit. Detinue, it is said, if the bailee of goods
deliver them to him who has the right to them, he is still notwith-
standing chargeable to the bailor, who in truth has no right,; and
for this 9 Hen. 6, 58, is cited. So if the bailee deliver them to the
bailor in such case, he is said not to be chargeable to the true
owner thereof, Ibid. 607 ; for which 7 Hen. 6, 22. is cited. And
again in Fitzherbert's T. B. 138-9, tit. Writ of Detinue, M., it is
laid down, if a man have goods delivered to him to deliver over to
another, and afterwards a writ of detinue is brought against him
who hath right unto the goods ; now if the defendant, depending
the action, deliver the goods over to whom they were bailed to him
to deliver, the same is a good bar in the action, because he hath
delivered them according to the bailment made unto him. But it
is said, if I deliver a deed to A., to which B. had right, and A. dies,
and his executor takes the deed, he is not chargeable in detinue to
me, but only to B., who hath the right, because he comes to it by
law. 1 Rolle Abr. 607, tit. Detinue, for which 9 Hen. 6, 58, is
quoted. The reasoning, which we meet with in support of these
several positions, is by means satisfactory ; nor yet in accordance,
I apprehend, with analogical principles. In 1 Bac. Abr 359, tit.
Bailment (A) the reason assigned why C., to whom the goods of A.
were bailed by B., must not deliver them to A. the real owner is,
that C. cannot pretend to remove or alter that possession committed
to him, in order to restore it to the right owner ; for the right of
restitution must be demanded of him that did the injury, of which
C. has no pretence to judge; and therefore it would be downright
*4221 treac ^ er y *i n hi to deliver them to any other than him
-" from whom he had it. Here the proposition that the right
of restitution must be demanded of him that did the injury, because
the bailee may not know or have the means of ascertaining the
owner, if correct, would go to show that in no case can there be a
recovery by the rightful owner of goods against him to whom they
have been delivered, upon a sale or otherwise, by one who has taken
them tortiously without the owner's consent, and without the least
color of right, because the vendee or bailee in such case may not
know, or have it in his power to ascertain with certainty, who is the
rightful owner of the goods. But recoveries by the right owners


[King v. Richards, j

against bailees and vendees, and especially the latter, are common
and of almost daily occurrence in our courts. As against the
purchasers of goods, from those who have come wrongfully by the
possession of them, I do not understand it to be denied that a recov-
ery may be had by the owners thereof: and that it is no plea for such
purchasers to allege that they purchased the goods, believing the
parties, of whom they purchased, to be the true owners thereof,
either from the circumstances of their being in the actual possession
of them, or that of any other. Indeed it is well settled in England,
that the sale of goods, unless made in market overt, if made without
the authority of the owner, either expressly or impliedly given, doea
not divest him of his right of property therein ; and that he is en-
titled to demand and recover the goods or the value of them, from
the person in possession of them, whomsoever he may be. 2 Blackst.
Com. 449, 450; 2 Inst. 713, 714. The law is the same in this
state, with the exception that we have no market overt ; and conse-
quently no protection can be afforded upon this ground in any case
to the purchaser. Hosack v. Weaver, 1 Yeates 478 ; Thomas v.
Hess, 1 Id. 479 ; Handy v. Metzger, 2 Id. 347 ; Easton v.
Worthington, 5 S. & R. 130 ; Lecky v. McDermott, 8 Id. 500.

Would it not, then, be singularly strange and unreasonable to
hold that a bailee, a mere depository for instance, who has given no
consideration, and parted with nothing for the goods, stands in a
more favored situation than an innocent vendee who has paid a full
price for them ? Bailees, with the exception perhaps of innkeepers,
common carriers, and wharfingers, or warehousemen, have the same
right to decline becoming such that vendees have, and may, there-
fore, by using proper precautions, make themselves secure against
loss accruing from their taking charge of goods belonging to others,
from whom they have been filched or improperly taken. And
although innkeepers, common carriers, wharfingers, or warehouse-
keepers may be bound, the first to receive the goods in the posses-
sion of their guests, when they have room for them, and the latter
the goods in the possession of those who may wish to employ them,
by placing the goods in their charge, without having sufficient time
allowed to make the requisite inquiry to ascertain first whether
they *are the rightful owners of the goods or not ; yet that I-JMOQ
would not seem to furnish any sufficient ground for their *
refusing to deliver the goods to the owners, on demand made by the
latter, where they have been wrongfully deprived of the possession
of them. It is sufficient in such cases for the bailees just mentioned
that they are authorized by law to retain the goods in their posses-
sion without delivery, until they are paid or tendered the amount
of what they are entitled to for keeping or carrying them Anon.,
2 Shaw 161, Yorke v. Greenough, 2 Ld. Raym. 866 ; and the case
of the Exeter carrier, cited in Yorke v. Greenough, p. 857. In the


423 SUPREME COURT [March Term,

[King v. Richards.]

two last cases cited, the only objection made to the plaintiffs
recovery was his omission or refusal to tender or pay the hire claimed
by the defendant, which the plaintiff alleged he was not bound to
do, inasmuch as his goods had been wrongfully taken from him and
delivered to the defendant by a person who had no right thereto or
authority whatever to do so. The court, however, held, in the first
of these two cases, that the defendant, who was an innkeeper, had
a lien upon the plaintiff's horse for his keeping, and was not bound,
therefore, to deliver the horse to the plaintiff, though he was the
owner, until paid for the keeping of the same ; and, in the second
case, that the carrier, who was the defendant, had a lien upon the
goods for his carriage of them, notwithstanding they were delivered
to him by one who possessed himself of them wrongfully, without
any right thereto, because he was bound to receive the goods, and
was therefore justified in withholding them from the plaintiff, who
proved himself to be the rightful owner thereof, until he was paid
his freight. But in neither of these cases does it seem to have
entered into the minds of the counsel or of the court that the plain-
tiff was not entitled to recover, because the defendant was under a
promise or obligation to deliver the goods to his bailor. On the
contrary, it seems to have been considered that his title to recover

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 47 of 75)