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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 5) online

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be sustained. The award was not good at common law, because
the parties agreed that the submission should be in pursuance of
the provisions of the statute ; and it was not good under the
statute, because its provisions had not been pursued. Act of 1836,
sect. 1., Purd. 71 ; Okison v. Flickinger, (1 Watts fy Serg. 258).

Williston, for defendant in error.

The opinion of the Court was delivered by

KENNEDY, J. This action was instituted in the Court of Com-
mon Pleas of Bradford county, by David Benjamin against Jesse
Benjamin, to recover the sum of $142 with costs, which had been
awarded to be paid by the defendant to the plaintiff by arbitrators
mutually chosen by them, to whose arbitrament and award they
had agreed to submit all matters in variance between them,
expressly declaring by their submission, which was in writing,
under their respective hands and seals, that the submission was
"under the Act of 1836." The submission contained no agree-
ment that it should be made a rule of any court of record, as is
required by the 1st section of the Act of 1836; nor was any
attempt ever made to have the agreement of submission entered
upon the record of any court, and a rule of the court made, that
the parties should submit to, and finally be concluded by the arbi-
tration which should be made pursuant to the said submission, as
is directed by the 2d section of the said Act. And, indeed, it is
evident, that such an attempt would have been fruitless, and could
not have availed ; for the submission, as has been already men-
tioned, contained no agreement or provision that it should be
made a rule of any court whatever. It is, therefore, clear, that
the award cannot be sustained and enforced as one made under
the provisions of the Act of 1836. The question then presents
itself, can it be considered good as an award made in pursuance
of a submission at common law ? In the case of an award made
under a submission at common law, I take it to be well settled,
that a mistake on the part of the arbitrators, either in matter of
fact, or matter of law, or in both, is insufficient to set the award
aside. The arbitrators, being a tribunal of the parties' own choice
and creation, and generally composed of men who are not much
skilled in the law, or very much employed in the investigation and
finding of facts from evidence adduced, and who may admit and
act upon evidence that would be wholly inadmissible in a court
of record, the award is ever considered as valid and binding upon
the parties, unless it is impeached on the ground of excess of
authority, misbehaviour, partiality or corruption in the arbitra-
tors. Whenever this is shown to be the case, their award will be
set aside, but for no other cause. By the 4th section, however,
of the Act of 1836, an award made in pursuance of a submission


[Benjamin v. Benjamin.]

under that Act, may be set aside for a plain mistake committed
by the arbitrators, either in matter of fact, or in matter of law.
Then to consider the award made here, as under a submission at
common law, would go to deprive the defendant of the benefit,
which he plainly intended to secure to himself, of excepting to it
and having it set aside, if the arbitrators should commit a plain
mistake, either in matter of fact, or in matter of law, or in both, by
having it expressly declared in the submission, that it was under
the Act of 1836. We, therefore, think that the plaintiff below
was not entitled to recover in this action the amount of the award,
and that the court erred in rendering a judgment in his favour.

Judgment reversed, and judgment for defendant.

Feigley against Sponeberger.*

A sale of goods on credit to one partner, in the course of the business of the
partnership, is a sale to the firm, unless it be made contrary to an express notice
by the other partner not to trust the firm on his account ; in which case, he alone
will be liable who made the purchase, and an action to recover the price cannot
be maintained against the firm.

ERROR to the Common Pleas of Columbia county.

George Amos and Nathan Feigley against Daniel Sponeberger,
Charles F. Mann, J. F. Mann, Thomas Metzger and Jacob Rapp.
This was an action of assumpsit to recover the price of goods and
merchandise sold and delivered by the plaintitfs to the defendants.

Daniel Sponeberger and C. F. & J. F. Mann, entered into a
contract with the Lehigh Coal and Navigation Company for the
construction of a section of the canal ; the interest of Sponeber-
ger in the contract was one-half. After the work was partly
done, C. F. & J. F. Mann transferred one-half of their interest in
the contract to Thomas Metzger, upon the conditions that he was
to superintend the work to its completion, and be entitled to one-
half the profits, if any, and be subject to one-half the losses. At
the same time, Daniel Sponeberger transferred the one-half of his
interest to Jacob Rapp upon the same terms. When these trans-
fers were made, Sponeberger and C. F. & J. F. Mann directed
the Lehigh Coal and Navigation Company to make the monthly
payments to Jacob Rapp or Thomas Metzger, " their receipt to
be the same as ours," except the final estimate. After the plain-
tiffs had proved these facts, they gave in evidence their books of

* This case was argued at July Term 1842.

July 1843.] OF PENNSYLVANIA. 565

[Feigley v. Sponeberger.]

original entries, in which Rapp and Metzger were charged with
goods and merchandise furnished for the work to the amount of

The defendants then proved, that after the transfer of the one-
half of his interest in the contract by Sponeberger, he called upon
the plaintiffs, settled his account, and paid the balance then due,
and gave them notice " not to trust Thomas Metzger or Jacob
Rapp, or any other person on my credit, without an order from '
me, or I come myself." The goods and merchandise, for the price
of which this suit was brought, were sold to Metzger and Rapp
after the date of this notice.

The plaintiffs requested the court to charge the jury: " That
notwithstanding the jury should believe that the notice referred to
was given to the plaintiffs, yet, if the goods and merchandise were
received and used upon the work in which the defendants were
jointly interested, they were jointly liable for the plaintiffs' claim;"
and " that the notice as proved was not sufficient to bar the plain-
tiffs from recovering from the dormant partners."

LEWIS, President, instructed the jury, that the facts of the case
constituted all the parties interested in the contract with the com-
pany, partners : but if the jury believed that notice was given by
Sponeberger to the plaintiffs, not to credit the firm on his account,
they were not entitled to recover in this action. A verdict and
judgment were rendered for the defendants.

Greenough, for plaintiffs in error, argued that Sponeberger, not-
withstanding*his notice, remained liable for goods actually received
and used for his benefit : even if a partner give notice of his hav-
ing withdrawn from the firm, yet if he continues in fact to parti-
cipate in the profits, he would be liable to creditors. 3 Kent's Com.
15. If the plaintiff had omitted to sue Sponeberger, the others
might have pleaded it in abatement ; and, certainly, the proof of
such notice would not avoid the effect of the plea.

Pleasants and Cooper, contra, argued that partners had but an
implied authority to bind each other in matters pertaining to the
partnership ; and there was no reason why this implication might
not be removed as to third persons by an express notice, that, as
between themselves, no such authority existed. Besides, the law
is so settled by the best authorities. 10 East 264 ; 3 Kent's Com.
45; 1 Whart. 388; CoZ. on Part. 214; 3 Conn. Rep. 124; Gary
on Part. Ill ; 19 Johns. 538; Chit, on Con. 207 ; 1 Young $ J ar-
ms 227 ; Gow on Part. 49, note 3 ; 3 Stark. Ev. 1075.

The opinion of the Court was delivered by

KENNEDY, J. The only question in this case was whether the
defendant, Sponeberger, was liable to pay the plaintiffs for goods
sold and delivered by them to the other defendants, as partners of

v. 2x

566 SUPREME COURT. [Sunbury.

[Feigley v. Sponeberger.]

Sponeberger, after he had given the plaintiffs notice not to trust
them on his credit without an order from him, or he come himself
in person. This question seems to have been decided frequently.
Chancellor KENT, in treating the subject, says ; " a sale to one
partner, in a case within the scope and course of the partnership
business, is, in judgment of law, a sale to the partnership. But
if the purchase be contrary to a stipulation between the partners,
*and that stipulation be made known to the seller, or if, before the
purchase or delivery one of the partners expressly forbids the same
on joint account, it has been repeatedly decided that the seller
must show a subsequent assent of the other partners, or that the
goods came to the use of the firm." 3 Kent's Com. 45. For this
doctrine he cites the following cases, which go to support it fully.
Willis v. Dyson, (1 Stark. JV. P. 164) ; Galway v. Matthew, (1 Camp.
JVC P. 403), S. C. 10 East 264 ; Leavitt v. Peck, (3 Conn. 124).
And notwithstanding he mentions one or two cases somewhat at
variance with it, where the partnership consisted of three or more
persons, Rooth v. Quin, (7 Price 193), and Kirk v. Hodgson, (3 Johns.
Ch. Rep. 400), yet he declares the better opinion to be, " that it is
in the power of any one partner to interfere and arrest the firm
from the obligation of an inchoate purchase which is deemed
injurious." 3 Kenfs Com. 45. And indeed it would seem to be
unreasonable and contrary to analogy to hold otherwise ; for the
power of one partner to bind the others is not essential to the con-
stitution of a partnership. In most, if not in all cases, it is but an
implied power, and seldom, if ever, expressly provided for or given
by the terms of the partnership agreement. It would therefore be
strange if the exercise of it could not be expressly provided
against or forbidden by any one member of the firm, so as to
protect himself against claims created contrary to his assent and
express direction, by one or more of his partners, after notice
given by him to the party making the claim not to trust or credit
his partners or any of them on his account, without his express
and direct authority to do so. We therefore think that the in-
struction given by the court below to the jury was correct.

Judgment affirmed.




1. Abandonment is not to be presumed from lapse of time against one
who had warrants and surveys, and paid the whole purchase money
for the land to the Commonwealth ; nothing will do short of actual
ouster for twenty-one years. Urket v. Coryell, 60.

2. Abandonment of land by a settler is not in all cases a matter of
fact ; it may be a conclusion of law from facts. Miller v. Cresson,

3. To constitute an abandonment, there must be an actual relin-
quishment of possession by the settler, without the intention of return-
ing. Ibid.

4. It is error to submit to the jury the question of abandonment,
when there is no evidence of a relinquishment of possession. Ibid.

5. As to land which has been once improved and cultivated, aban-
donment may be matter of law to be decided by the court, or of fact
to be determined by the jury ; but when the facts with respect to it
are doubtful, it must be referred to the jury. Forster v. .M'jDm'Z, 359.

VENDOR, &c., 15.

1. An Act of Assembly declaring the children of a bastard child
able and capable to inherit and transmit the estate of their deceased
mother, as fully as if the said bastard child had been born in wedlock,
does not devest real estate which had previously passed by descent
from the mother to her brothers, so as to vest it in the children of the
deceased bastard child. Norman v. Heist, 171.

2. The Legislature cannot take the property of one individual, with
or without compensation, in order to give it to another. Ibid.


EXECUTORS, &c., 1.

An action against the Bank of Pennsylvania, which is located in
Philadelphia, cannot be instituted in the county of Berks by a service
of the process upon the cashier of the branch of the bank located in
that county. Brobst v. Sank of Pennsylvania, 379.


1. In an issue between a father and a creditor of his deceased son,
to try whether a sum of money given by the father to the son was a
loan or an advancement, it is competent for the latter to prove that


568 INDEX.


the son worked for the father after he arrived at full age. Christman
v. Siegfried, 400.

2. It is also competent in such case to prove that the father had
made advancements to his other children. Ibid.




1. If the matter in dispute and object of a written agreement, whe-
ther under seal or not, can be discovered, it will be construed so as to
effect that object. WorraWs Accounts, 111.

2. Where a suit has been compromised and a doubtful question
settled, it will not be opened unless there has been fraud or imposition,
especially where the agreement of compromise indicates an intention
to end the matters in dispute. Ibid.

3. Therefore a release of demands executed on the settlement of a
family dispute will be construed according to the design and intent of
the parties, and not by technical expressions. Ibid.




1. After an appeal by a defendant from an award of arbitrators
against him, the plaintiff cannot file an additional count containing a
new and distinct cause of action from that tried by the arbitrators.
HUyard's Estate, 32.

2. If the narr. sets out a contract with the plaintiff alone, a new
count averring a contract with the plaintiff and another since deceased,
contains a new and distinct cause of action. Ibid.




If upon an appeal from the judgment of a justice of the peace,
the recognizance be not in conformity with the 33d section of the Act
of 12th February 1842, the appellant must be called upon by rule to
perfect it, which he must do nunc pro tune, so as to take effect from
the date of the previous one. Adams v. Null, 363.


A general appearance by the defendant waives the summons and
service of the writ. Zion Church v. St. Peter's Church, 215.


The intention of a payer to appropriate a payment to a particular
debt, may be collected from the nature of the transaction, and may be
referred to the jury as matter of fact. West Branch Bank v. Moorehead,


INDEX. 569


1. An award of arbitrators chosen by the parties is conclusive of
the controversy, and has the effect of changing the right to the money
or property claimed, in the same manner as a judgment. MerricVs
Estate, 9.

2. If a cause be referred to arbitrators, and an award made in favour
of the defendant for a certain sum, and the plaintiff appeals, and after-
wards, by leave of the court, suffers a nonsuit, the award is thereby
defeated, and is irrecoverable by scire facias against the plaintiff.
M'Kennan v. Henderson, 371.

3. A submission and award under the Act of 1836, not having been
entered of record and a rule of court obtained thereon, is wholly ino-
perative, and no action will lie for the recovery of the amount of the
award. Benjamin v. Benjamin, 562.



The burning of a barn with hay and grain in it, is felony and arson
at common law. Sampson v. The Commonwealth, 385.


1. Articles fully executed by paying part of the purchase money
and giving bond, and conveyance made under them, have no bearing
in a suit on such bond. Ludwick v. Huntzinger, 51.

2. Queere, how it would be in such suit if the defendant could show
the land conveyed to be different from that contracted for. Ibid.

3. Articles of agreement concerning 72,000 acres of land belonging
to M., N. & G., do not, without other evidence, embrace lands be-
longing separately to M. Urket v. Coryett, 60.

4. Where titles are held by trustees under articles, for the benefit
of subscribers to the articles, the trust does not take effect until there
are subscribers. Rid.



1. Where a voluntary assignment for the benefit of creditors br-
comes void in consequence of not being recorded within thirty days,
moneys in the hands of assignees, the proceeds of the assigned pro-
perty, as well as debts outstanding and uncollected, are subject to an
attachment of execution at the suit of creditors not coming in under
the assignment. Stewart v. M'Minn, 100.

2. But the assignees are not liable in such attachment for moneys
collected and paid over before the attachment in pursuance of the
assignment. Ibid.

8. Assignees under a voluntary assignment for the benefit of credi-
tors have no right as against a mortgage creditor, which could not be
claimed by the assignor himself. Lnckenbach v. Brickenstein, 145.
4. The board of directors of the Bank of the United States had
v. 72 2x vu.xj

570 INDEX.


power to assign its property and effects, in trust to pay certain pre-
ferred creditors, without the authority or consent of its stockholders.
Dana v. The Bank of the United States, 223.

5. Such power belongs to a corporation, like an individual, unless
it be restrained by its charter or other legal provision. Ibid.

6. The insolvency of the bank at the time of such assignment does
not impair its powers to assign for the benefit of preferred creditors.

7. Schedules to an assignment not dated, referred to in the assign-
ment as bearing even date with the assignment, will be taken to have
been executed at the same time, and that might be shown by parol
evidence if it were even necessary. Ibid.

8. A deed of assignment for the benefit of creditors is not rendered
invalid by containing a reservation to the grantor of the surplus after
paying the debts of the assignor provided for, such a reservation being
implied by law, though not expressed. Ibid.

9. Though such assignment be made by a failing bank and the
surplus is alleged to exceed by 50 per cent, the debts preferred, yet
if it is assigned as a pledge with right of redemption, the other credi-
tors may redeem, and thus avoid its being locked up for a long time
from such creditors. Ibid.

10. A proviso in an assignment that the trust shall be closed within
two years, and if not then closed, the assignees shall within six months
sell remaining assets sufficient to pay the debts preferred, but stipu-
lating also for payment and distribution among the preferred creditors
from time to time, as often as there shall be moneys in hand, does not
postpone the liability of the assignees to account, or protect them from
being cited after a year, and is therefore no objection to the validity
of the assignment. Ibid.

11. An assignment, good when made, cannot be affected by an Act
of Assembly afterwards passed, on the ground that it was then known
to the assignor that such Act was about being passed by the Legisla-
ture. Ibid.




An action for money paid, laid out and expended, can only be sup-
ported by proof of the actual payment of the money, or of the plaintiff's
having given his own negotiable note for it, and not then, if it appear
that the defendant is a surety on that note. Pursel v. Ellis, 525.


The plaintiff may issue an attachment of execution, notwithstanding
an alias fieri facias is pending on which no levy has been made.
Tanis v. Wardle, 222.


1. The Supreme Court will not grant relief to an attorney who has
been stricken off the rolls of the District Court or Courts of Common
Pleas, either by certiorari, appeal, mandamus, or any other form of
proceeding. Commomvealth v. District Court, 272.

INDEX. 571


2. Counsel who has been consulted about a title to land will not be
permitted to purchase an outstanding one, and set it up in opposition
to his client. Hockenbury v. Carlisle, 348.


1. If different lots of articles are sold to one person at an auction
sale, and one of the lots is warranted, but turns out different from the
warranty, in consequence of which the buyer refuses to take it, but
the parties agree to settle for the other articles without prejudice to
either, such acceptance of the other articles does not preclude the
buyer from contesting his liability for the loss on a resale of the arti-
cles warranted. Barclay v. Tracy, 45.

2. Where the terms of sale and responsibility of the parties are
different in the sale of different articles to one person at an auction,
the contracts in respect to them may be considered as different, and
not one entire contract. Ibid.




ASSIGNMENT, 4, 5, 6.




1. The validity of the petitioning creditor's debt, on which a com-
mission of bankruptcy issued in England, cannot be disputed here by
the bankrupt, on the ground that the petitioning creditor was an alien
enemy, in a case where the debt was settled by an award of arbitra-
tors without taking that objection, and the bankrupt afterwards failed
in an action of trespass brought in England against the commis-
sioners, and the chancellor, on application of the bankrupt, refused to
supersede the commission, and a great lapse of time afterwards
occurred. Merrick's Estate, 9.

2. The rule in Pennsylvania is, that an involuntary transfer by
proceeding in bankruptcy in a foreign state, of property here, will be
regarded, except so far as it interferes with the claims of American
creditors ; and foreign assignees may sue here in the name of the
bankrupt. Ibid.

3. But, qiuere, whether the exception embraces creditors of the
bankrupt at the time of the suit, or only those at the time of the assign-
ment ? Ibid.

4. If an assignee' of a bankrupt become bankrupt, and make an
assignment ns such, neither his assignees nor his personal representa-
tives are entitled to a debt outstanding due to the original bankrupt ;
but it must go to a new assignee of the original bankrupt. Ibid.


EviDENf R, 5.

572 INDEX.





VENDOR, &c., 12, 14.

1. The holder of an endorsed note, who discovers that the endorse-
ment was forged by the maker, may take from the maker a judgment
and sell all his estate by execution, and appropriate it to the payment
of such note, without thereby discharging the bona fide endorser of
another note given by such maker, and in the holder's possession,
though he gave no notice to him of his proceedings, and did not arrest
the maker for the misdemeanor, if there be no evidence of a composi-
tion of the offence. Brittain v. The Doykstown Bank, 87.

2. Where a note is payable at a bank, an assertion in the protest
of demand at the bank is sufficient prima fade evidence of such
demand. Ibid.

3. Proof of a delivery of such note by the cashier to the notary for
protest on the last day of grace, and presentation by him at the bank
on the day following, is sufficient. Ibid.

4. But in such case there need be no demand at all, if the endorser
has waived notice of non-payment by a memorandum at the time of
endorsing. Ibid.

5. Where a note is payable at a bank, it need not be shown that
the cashier was at the bank all the business hours on the day of pay-
ment in order to receive it ; the presumption is he performed his duty.

6. The husband is not liable on a negotiable note given by his wife
even in a suit by a bona fide endorsee, unless it was given with his
authority or approbation, and that must be shown before such note is
admissible in evidence against the husband. Reakert v. Sanford, 164.

7. The husband's authority cannot be inferred from his knowledge
that the wife was carrying on business, and gave the note in the course
of it. Ibid.

8. In a suit by the holder of a negotiable note, the defendant may
show fraud in obtaining it, if he offers to prove that after being pro-

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 5) → online text (page 66 of 69)