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went on subtle grounds, but it is now settled that whether cove-
nants be dependent or independent, is a question of intention. On
the whole case, we are of opinion that the covenants are depend-
ent, and consequently that a deed should have been tendered be-
fore the commencement of the suit.

Judgment reversed.



Sept. 1841.] OF PENNSYLVANIA. 229



Evans against Boggs.

If a constable, by reason of negligence, becomes liable for the amount of an
execution placed in his hands, the issuing of a subsequent execution is not a
relinqu ishment by the plaintiff of his right to recover from the constable.

In an action against a constable founded upon negligence in not returning an
execution, it is competent for the defendant to prove, that the judgment was paid
before the execution issued.

ERROR to the Common Pleas of Butler county.

Thomas Evans against Samuel D. Boggs. This was an action
against a constable to recover the amount of an execution which
had been placed in his hands, and to which he had made no legal
return. The defendant relied upon two grounds of defence.

1. That the judgment was paid to the plaintiff before the exe-
cution issued.

2. That after the return day of the execution, the plaintiff issued
another, which was a waiver by him of his right to resort to the
defendant.

Both grounds were sustained by the evidence ; and the court
below was of opinion that both were tenable in law, and directed
a verdict for the defendant.

Purviance, for plaintiff in error, argued that in such case it was
not competent for the defendant, who was charged with negli-
gence in the discharge of his official duty, to enter into the merits
of the plaintiff's right to recover his judgment from the original
defendant.

The court will not construe the act of taking out another exe-
cution to be a waiver, inasmuch as it was for the defendant's
benefit.

Smith, for defendant in error. If the plaintiff was not injured
by the defendant's negligence, he can have no right of action
against him. If the debt was paid, no injury resulted to the plain-
tiff from not collecting it a second time.

The opinion of the Court was delivered by

SERGEANT, J. The issuing of a new execution by the plaintiff
was not a waiver of his resort to the constable, if the latter had
been fixed for the debt, as was decided recently by this court
in the case of a sheriff, Myers v. Commonwealth, (ante 60). On
the other point, however, the instruction of the court was right.
Several cases have decided that the constable, notwithstanding he

IT. U



230 SUPREME COURT [Pittsburgh

[Evans v. Boggs.]

has failed to comply with the injunctions of the first part of the
12th section of the Act of 1810, may, under the latter part of the
same section, show that there was " sufficient cause" for his not
doing so. It may be shown by the constable that the plaintiff had
no right to issue the execution, having already received the debt,
or levied it by a prior execution, and this exempts the officer from
liability to the plaintiff. Such process, it is true, is not absolutely
null and void, but it is one which is unwarrantable and improper,
and which the plaintiff ought not to be permitted to derive an ad-
vantage from, as against any person whatever.

Judgment affirmed.



David against Moore.

In an action by a passenger against a stage-owner to recover the value of a
trunk and its contents cut and carried away from the stage, the plaintiff is not a
competent witness to prove that there was money in the trunk, or the amount.

ERROR to the District Court of Allegheny county.

W. David against S. Moore, W. Colder, and J. Ottinger. This
was an action to recover the value of a trunk and its contents cut
from the stage of the defendants, in which the plaintiff was a pas-
senger from Chambersburg to Pittsburgh. The only question in
the cause was, whether the plaintiff was a competent witness to
prove that he had the sum of $75 in his trunk when it was taken.

GREEK, President, was of opinion that the witness was compe-
tent only to prove the amount and value of his baggage in the
trunk, and not the money, and directed a judgment accordingly.

Knox, for plaintiff in error, argued that the amount claimed by
the plaintiff was that reasonable sum which every man travelling
might be supposed from necessity to have, and therefore this case
came within the principle which governs the cases settling the
point that the plaintiff is a competent witness. 12 Vin. Jib. 24,
32; 10 Watts 336; 1 Greenleaf 27 ; 9 Wend. 102, 117; 19 Wend.
537 ; 1 Yeates 34.

Darrack, for defendant in error. The principle settled is that
the plaintiff is a witness to prove the contents of his trunk so far
as it contains articles which in the ordinary course of things he
alone can know. A trunk is not the ordinary place to carry
money; and it does not follow that if the plaintiff resorts to that



Sept. 1841.] OF PENNSYLVANIA. 231

[David v. Moore.]

extraordinary mode, no one but he should know it. The danger
of establishing such a rule as the plaintiff contends for, should be
a conclusive argument against it. If his competency be limited
to the mere article of clothing, no great danger results from it.
But if the plaintiff may swear himself into any amount of money
he may please to say he had, staging might be a very good busi-
siness for the passenger, but a ruinous one for the owner.

The opinion of the Court was delivered by

HUSTON, J. The plaintiff was a passenger in defendants' stage,
on his way from Philadelphia to Pittsburgh, showed a receipt
for payment of his passage, proved that his trunk was put into
the boot of the stage at Chambersburg. After driving all night,
on the arrival of the stage at Bedford, the straps of the boot were
found to be unbuckled, and plaintiff's trunk gone. The damages
laid were, for trunk and clothing $86, in bank-notes $75. The
proof of the contents of the trunk was the oath of the owner.

The jury found for trunk and clothing $50 ; and by direction
of the court an additional sum of $75 for the money, if the court
should be of opinion the fact of there being money in the trunk,
and its amount, could be proved by the oath of the owner. The
court gave judgment for the $50 only. The error assigned was
in not rendering judgment for the money as well as the trunk
and clothing.

The liability of carriers is an old doctrine. Stage-owners have
been considered common carriers, and liable as such. They have
endeavoured to escape from this liability by notices that they
would not be liable for baggage. The difficulty of bringing home
notice of this regulation, induced some companies to put a clause in
the receipt, that all baggage was at the risk of the owner. Judges
at nisi prius, and even courts in bank, did not exactly agree as to
the effect of such clause. In England, it seems, an Act of Parlia-
ment has passed on the subject. This court and the courts of
some of the neighbouring states have carried the doctrine of their
liability as far as that of common carriers at common law: This
case does not raise any question as to that matter. In some cases
a distinction has been made as to articles of small bulk and weight,
but of great value, and this value not made known to the stage-
owner. The reasons for making a stage-owner liable for what he
knows and believes he has in charge, would seem not to apply to
property of great value, bank-notes, for instance, of which he had
no knowledge or suspicion ; but this question does not arise in this
case. The naked question is, can the owner be a witness to prove
that there was money in his trunk, and the amount of it? That
a person may prove the articles of clothing in his trunk in a suit
against the stage-owner for losing a trunk, was established long
ago. See the cases cited in the case in 10 Watts 336, and the
decision of this court in that case. But in all the cases he is said



232 SUPREME COURT [Pittsburgh

[David v. Moore.]

to be a witness from necessity ; as the trunk is generally packed
by himself or his wife. If a man is a witness from necessity, is
there any reason to make him a witness beyond the necessity ?
Money, especially since bank-notes are the circulating medium,
is not generally put in a trunk. If bank-notes are enclosed in a
letter, I believe the general if not universal usage is, to let some
person be present and see them put in and sealed in. If a stage-
owner is to be held liable for money in a trunk, there is nothing
improper or indelicate in having a person present to see the amount,
and that it was put into the trunk. The carrier is liable if lost
by theft or robbery liable for every thing but the act of God or
a public enemy. It is not unreasonable that he to whom he is
thus liable should be held to some proof beyond his own oath, that
money was among his baggage, and the amount of money. The
principle on which this opinion rests would seem to make it im-
material to what purpose it was intended to apply the money,
whether to buy land, or cattle, or goods, or to pay travelling ex-
penses, and whether those expenses were expected to supply a man
on a journey of a few days, or a journey to be continued for
months or years.

The idea that the owner may prove a small sum of money for
expenses to have been in a lost trunk, is not founded, so far as is
shown by the cases cited, or which I have met with. In the case
in 9 Wend. 102, 117, cited for the purpose of sustaining that doc-
trine, the dictum does not apply to the evidence to support plain-
tiff's claim. The action was against the carrier for the loss of a
large sum of money proved (not by the owner) to have been in a
trunk. No notice had been given to the owners or to the captain
of the boat that the trunk contained money. The decision was
that owners were not liable because not informed that the trunk
contained bundles of bank-notes ; and the judge says a carrier is
not liable for money in a trunk of which he has not been informed,
except it be a small sum for travelling expenses. No dispute ex-
isted, and no opinion was given as to what evidence would be
sufficient to prove that there was money in a trunk.

An Act of Parliament has no force here. I have stated that one
was passed in the time of George IV. on the subject of the liability
of common carriers, by which stage-owners cannot be held liable
beyond 10, unless the value beyond that sum is mentioned and
booked, or noticed by receipt of owners ; and it further enacts that
the owner suing shall prove the value of the property lost, by or-
dinary legal evidence.

I have said this is not obligatory on this court ; but the result
of great experience adopted as a rule in other places may be con-
sidered, when we are called on to decide so important a point for
the first time. I have strong reasons for believing that cases have
occurred, where the list of articles and value put on them by the
plaintiff has been greatly above the real value. The rule settled



Sept. 1841.] OF PENNSYLVANIA. 233

[David v. Moore.]

of permitting a plaintiff to prove the contents of a trunk is not
impugned as to what may be comprehended under the very exten-
sive term baggage ; but I agree with the court in 9 Cowen, in
thinking it does not comprehend money ; and we see no cause for
extending the competence of a party to give evidence in his own
case.

Judgment affirmed.



Speer against M'Chesney.

A reference and award have a conclusive effect in determining a dispute about
a personal right.

ERROR to the Common Pleas of Allegheny county.

John M'Chesney against James A. Speer. This was an appeal
from the judgment of a justice. The claim of the plaintiff was
for mason-work done for the defendant. The parties disputed
about the amount of work done. It appeared on the trial, that
before suit was brought, the parties chose John W. Johnston to
measure the work, and agreed " to abide by his measurement."
The result of his measurement was proved ; and the defendant
asked the court to instruct the jury that it was conclusive. In
answer to which the court said that it was not conclusive, but
that the jury must find a verdict upon all the evidence in the
cause.

Robb, for plaintiff in error, argued that the submission of a
question of fact affecting the rights of parties and an award
upon it, were just as conclusive as an award settling a disputed
account,

M'Candless, contra.

The opinion of the Court was delivered by

GIBSON, C. J. It is evident from an effort perceptible in the
earlier cases, to construe awards so as to defeat them, that they
were not favoured by the courts. To this cause is to be attri-
buted also their limited effect in operating a transfer of property.
In Hunter \. Rice, (15 East 100), Lord Ellenborough remarked,
that there is a difference between an award that property be
transferred, and an actual transfer of it by the contract of the
owner, made through the medium of an agent; yet it seems diffi-
cult to understand why an agreement of transfer which the parties
n ._30 r*



234 SUPREME COURT [Pittsburgh

[Speer v. M'Chesney.]

were competent to make in their own persons, may not be made
by arbitrators, as their agents, clothed with their powers. The
reason may be that an award is executory ; but as it may be
executed in chancery where it directs a conveyance of land, the
distinction between it and a conveyance executed, can be material
only as regards an award of chattels, which affords no more than
a ground of action to recover damages for a non-performance of
it. This, of course, is to be understood of an award at common
law; and not of an award where the submission is by rule of
court, which may be enforced by attachment. Such, however,
was the ground on which this court, in Davis v. Havard, (15 Serg.
fy Rawle 169), executed an award of freehold pursuant to a sub-
mission at the common law. But the limited effect of an award
of chattels may have been also the consequence of considering it
rather as a judgment than as an agreement; for though a judg-
ment operates conclusively on a contested right, it is not by the
exercise of an arbitrary power to take the property of the one
and give it to the other. But that an award has the conclusive-
ness of a judgment in its operation on such a right, whether the
property be real or personal, is shown by Doe v. Rosser, (3 East
11), in which an award of land was held, even at law, to conclude
the unsuccessful party from again contesting the title a principle
which alone would have been sufficient, had it been necessary to
recur to it, for the decision in Davis v. Havard. In Doe v. Ros-
ser, the award was allowed to have a greater effect even than a
verdict and judgment in ejectment ; and it must consequently be
allowed to have a conclusive effect in determining a dispute about
a personal right. Such is the law, not only in our own state, but
in England. Now, in this instance, the matter in variance, was
the measurement of a job of mason-work, and the parties agreed
to leave the matter to an arbitrator, to re-measure it and settle
the amount due for it. He did so; and surely his measurement
is conclusive.

Judgment reversed, and a venire de novo awarded.



Sept. 1841.] OF PENNSYLVANIA. 235



Frazier against Thompson.

If a note be given for an entire consideration, part of which is legal and part
illegal, the whole contract fails, and there can be no recovery upon the note; but
if there be several considerations, each having its own value fixed by a separate
contract, some of which are legal and some illegal, it fails in part, and is good
as to the residue.

ERROR to the Common Pleas of Butler county.

John Thompson against James Frazier and Isaiah Niblock.
This was an action of debt upon a note for $400, to which the
defendants pleaded payment with leave, &c.

The defendants proved that the consideration of the note was
goods purchased by the defendants from the plaintiff at different
times ; and among other things a quantity of Brandreth's pills, to
the amount of $150, and the agency to sell them. The defend-
ants also gave some proof tending to show that the pills were
spurious, and that they were fraudulently imposed upon the de-
fendants.

The defendants requested the court to charge the jury :

1. If there was a conspiracy to cheat Mr Frazier, in giving
him the agency of spurious pills for genuine, and the same were
purchased in connection with the goods which form the consider-
ation of the note, the whole would be void.

2. If the agency was an inducement for the purchasing of the
goods, the inducement being fraudulent, the whole contract would
be void.

BREDIN, President. It is certainly true that fraud vitiates
every contract that is tainted by it ; the law will not lend its aid
to enforce such a contract. In this cause, the evidence on the
part of the defendants is, that the principal portion of the goods
were purchased after the pills were got, and after Mr Frazier was
appointed agent, and would not therefore, if the jury are satisfied
from the evidence that the pills were spurious, prevent the plain-
tiff from recovering the amount of the goods purchased by Mr
Frazier after he got the pills or goods purchased before he got
them. There is nothing in the evidence going to show that the
agency for selling the pills was what induced Mr Frazier to pur-
chase the other goods ; but if there was, the court is of opinion
that the pills being spurious would not prevent the plaintiff from
recovering the price and value of the goods sold to Mr Frazier at
and after the delivery of the pills, particularly as the goods were



236 SUPREME COURT {Pittsburgh

[Frazier v. Thompson.]

not returned nor offered to be returned ; nor is there any diffi-
culty in separating the transactions.
The jury found for the plaintiff $256.

Purviance, for plaintiff in error, argued that whatever may
have been the several contracts of the parties, there was one con-
tract in the giving of the note, and if the plaintiff founded his
action upon that contract, he must stand or fall by it. The con-
tract, therefore, being an entire one, if part of the consideration
was fraudulent, it vitiates the whole. 8 Johns. 253 ; 4 Yeates 24 :
4 Wash. C. C. Rep. 299; 4 Rawle 185; 11 Serg. $ Rawle 164;
Cro. Eliz. 199; 1 Term Rep. 201.

Gilmore, contra, argued that the note was but evidence of the
indebtedness of the defendants ; and inasmuch as they are per-
mitted for purposes of defence to enter into the consideration of
it, the justice of the case must be determined upon the whole
truth, as the proof establishes it. The proof, therefore, shows
that under all circumstances the consideration in part was good.

The opinion of the Court was delivered by

ROGERS, J. We cannot distinguish this case from Yundt v.
Roberts, (5 Serg. < Rawle 141). When the condition of a bond
consists of several different parts, and some of them are lawful and
others not, it is good for such as are lawful, and void as to the rest.
But if a contract is entire, and founded on two considerations,
one of which is unlawful, that vitiates the whole. Cro. Eliz. 199 ;
Crawford v. Morrell, (9 Johns. Rep. 196). Here, the purchase of
the different articles was separate and distinct, not mutual and
dependent, with an entirely different price and consideration. The
different items were summed up, and the note taken for the whole
amount ; but that cannot alter the case. If the contract had been
that in consideration of all the articles furnished by the plaintiff
the defendants gave the note, it would be an entire contract, and
the illegality of the consideration in part would avoid the whole
contract. And the reason is, that in the supposed case we can-
not separate the good from the bad. But where the contracts are
separate and distinct, no difficulty exists, and consequently there
is nothing to prevent a recovery of that which is good, allowing a
credit for the item which is illegal. Nor can it affect the princi-
ple that the contracts are made at the same time, provided the
considerations are not so blended as to form but one consideration,
although it may be composed of different items.

Judgment affirmed.



Sept. 1841.] OF PENNSYLVANIA. 237



Anderson against Blakely.

" P having informed me that he is making some purchases from yon, and not
being acquainted with you, that you wish some reference. Though not person-
ally acquainted, yet I would say from my knowledge of P, that you might credit
him with perfect safety, and that anything he might purchase from you I would
see paid for." Held, to be a letter of credit, limited in its extent, to the pur-
chases then being made.

ERROR to the District Court of Allegheny county.

Anderson & Canan against James Blakely. This action was
brought to recover from the defendant the amount of a book ac-
count for goods sold and delivered by the plaintiffs to Thomas
Pratt on the 12th February 1839, and at several other dates
between that time and the 30th May 1839, amounting to $923.99,
on account of which the said Thomas Pratt had paid on the 12th
February 1839 $100, on the 13th April $100, and on the llth July
$90. The first bill of goods purchased was on the 12th February
1839, and amounted to $230.07. The action against the present
defendant was founded upon the following letter of credit :

" Messrs Anderson & Canan :

" Gentlemen, Mr Pratt having informed me that he is making
some purchases from you, and not being acquainted with you,
that you wish some reference. Though not personally acquainted,
yet I would say from my knowledge of Mr Pratt that you might
credit him with perfect safety, and that any thing he might pur-
chase from you, I would see paid for. Respectfully yours,

" JAMES BLAKELY."

This letter was without date, but was delivered to the plaintiffs
4th February 1839.

It was proved by the plaintiffs that in June 1839 Blakely, the
defendant, called on them and said " that although Pratt was an
honest and industrious man, he would not be accountable for goods
got by him after that time."

SHALER, President, was of opinion that the true construction of
the letter credited limited the defendant's liability to the amount
of the bill of goods which was then the subject of negotiation be-
tween the parties ; and that this liability was not enlarged or
altered by the parol proof of the defendant's notice to the plain-
tiffs, after the whole amount of the account now claimed was pur-
chased, " that he would not be liable for goods purchased after
that time ;" and directed a verdict for the defendant.



SUPREME COURT [Pittsburgh

[Anderson v. Blakely.]

M'Clure and M'Candless, for plaintiffs in error, argued that the
true construction of the paper was a continuing letter of credit,
and bound the defendant up to the time it was countermanded ;
and cited 2 Camp. 436 ; 12 East 227 ; 2 Camp. 39, 414 ; 3 Camp.
220 ; 2 Hall's Rep. 197 ; 3 Yerger 330 ; 7 Peters 134 ; 5 Binn. 195.
And what greatly strengthens this construction is, that it is one
which the defendant himself put upon it, as is manifest by the no-
tice he gave " that he would not be liable for goods purchased
thereafter."

Metcalf, contra. The intention of the parties must govern their
rights and liabilities ; and that intention can only be gathered from
the letter, which is the ground of the action. There is no rule
which requires a strict interpretation of that letter against the
defendant ; on the contrary, inasmuch as he derived no considera-
tion himself, his liability should not be extended beyond its rea-
sonable construction. " Mr Pratt having informed me that he is
making some purchases from you," is the ground-work of the de-
fendant's engagement ; and whatever obligation he put upon him-
self in the subsequent part of the letter has reference to present
purchases. The cases in 8 Johns. 119, and 16 Serg. fy Rawle 212,
seem to be conclusive, in sustaining the opinion of the court be-
low.

The opinion of the Court was delivered by

SERGEANT, J. This case depends upon the construction to be
given to the letter of credit of February 1839, addressed to the
plaintiffs and signed by the defendant ; and the question is, whether
it is an unlimited credit for any amount of goods which might be
then or at any future time purchased, until countermanded, or
was restricted to the amount of purchases then to be made.

It cannot be denied that this is a question of some nicety, admit-
ting of plausible arguments on either side, whether taken up as a
new question, or after examination of the cases that have arisen,



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 2) → online text (page 26 of 68)