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Reports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 2) online

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of the owners of property within the city district. The court,
after hearing the parties concerned, conceiving the Act of Assem-
bly, under which the proceeding had taken place and the map or
plan was made, to be unconstitutional, refused to establish it,

Sept. 1841.] OF PENNSYLVANIA. 323

[District of the City of Pittsburgh.]

either in whole or in part, and therefore, as it appears, refused to
direct it to be recorded as required by the Act.

On behalf of the defendants here a motion has been made to
quash the writ of certiorari, because, although it is a writ of
course, yet it ought not to have been issued without cause having
been first shown, and also, because by it, the record of the pro-
ceedings therein have been brought into this court, and being
here by virtue thereof, must remain, notwithstanding this court
shall decide that the court below erred in their judgment, without
any further action being had in the case ; for this court has no
authority to do what the court below were required by the Act
of Assembly to do ; nor can this court remit the record so that
the court below may proceed to do what the Act required it
should do, in case this court should be of opinion that it was the
duty of the court below to have rendered obedience to the Act by
directing the map or plan of the said city district to be recorded
in some shape or other. Now it is certainly every day's practice
to remove proceedings had in the Courts of Quarter Sessions of
the several counties of the state, for the purpose, either of laying
out, altering or vacating public roads and highways, by means of
the writ of certiorari, without any application being made to the
court, or any one of its judges, to grant an allowance for suing
out the same upon cause shown; and where the court, upon
review and examination of the proceedings in such cases, find
them to be regular, it is the uniform practice of this court to
affirm them, and then remit the record to the court below, there
to remain, so that, if any further proceeding should be requisite,
it may be had. The case of laying out roads for public use under
our Acts of Assembly, resembles, in many respects, the present
case; and the practice just mentioned, in regard to suing out writs
of certiorari from this court to the Courts of Quarter Sessions, in
the case of roads, has obtained long since in the state, and would
seem to be alluded to, and sanctioned by the first and eleventh
sections of " an Act relative to the jurisdiction and power of the
courts," passed as late as the 16th of June 1836. The motion,
therefore, to quash the writ of certiorari, in this case, is dismissed.

Now, as to the constitutional question which has been raised in
the case. In the close of the 10th section of the 9th article of
the constitution, it is declared that, " no person shall for the same
offence, be twice put in jeopardy of life or limb, nor shall any
man's property be taken or applied to public use without consent of
his representatives, and without just compen sation being made." This
latter clause recognises the right, on the part of the state, to take
and appropriate private property to public use ; a right, however,
which she would have without any clause of the kind or provision
on the subject, as it is a right inseparably connected with sove-
reign power, and without which it would be difficult, if not im-
possible, for any state to get along. It is perfectly obvious, that

324 SUPREME COURT [Pittsburgh

[District of the City of Pittsburgh.]

the clause was not introduced into the constitution for the purpose,
of either conceding such a right to the state, or of showing that
it existed, but merely with a view to regulate the exercise of it,
so that the private property of no man should be taken for public
use, without the consent of the legislature, and without a just
compensation being made to him for it. That the laying out and
opening of streets, lanes, alleys, and even public squares, are and
may be essentially necessary for the use and benefit of the public,
is a proposition so clearly demonstrated by every day's* experience,
that it cannot be denied with any propriety. But then the mere
laying of them out cannot be said, of itself, to be a taking of the
property of the individuals, upon which they are laid out, for pub-
lic use at some future day, but rather a designation of what may
be required for that purpose thereafter ; so that the owners of the
property may in due time be fully apprized of what is anticipated,
and regulate the subsequent improvements, which they shall make
thereon, accordingly. It is only when the streets, lanes, alleys,
and public squares, shall come to be admitted in this case into the
city, as a part thereof, and be opened under the authority of the
same, in the manner prescribed by the Act, that the lands so
appropriated can be said to be taken or regarded as taken for
public use ; for until then the owners thereof continue, not only to
hold the same interest in them, but likewise to have the right to
enjoy and use them in the same manner that they did previously.
The instant, however, that the streets, lanes, alleys, and public
squares, shall be opened, as directed by the Act, and thus actually
given to the public for their use, the owners of the lands respec-
tively, upon which such streets, lanes, alleys, and public squares,
are located and laid out, becoming thereby devested of their
authority over the lands so taken and applied to public use, will
be entitled, under the provision in the constitution, and the Act
of Assembly authorizing the laying out of the city district, &c.
in this case, to receive a just compensation for the injury, if any,
which they shall have sustained by reason thereof, to be assessed
and paid out of the funds of the county, in the same manner that
the amount of the damages sustained by the owners of lands,
upon which public highways or roads are laid out, in pursuance
of the authority given by the general road laws, is ascertained
and paid. No valid objection can be made in this case to the
mode prescribed for ascertaining and adjusting the amount of
compensation, when any of the streets, lanes, alleys, or public
squares, within the city district, shall come to be opened, if such
a thing shall be claimed by any one entitled to it, that would not
be equally strong in the ordinary case of a road laid out and
opened under the authority of the general road laws ; because the
mode of ascertaining the compensation is identically the same in
both cases, and in principle they are substantially the same. But
I am not aware that any objection has ever been thought of, much

Sept. 1841.] OF PENNSYLVANIA. 325

[District of the City of Pittsburgh.]

less made, to the mode of ascertaining the compensation in the
case of roads laid out and opened under the general road laws ;
and as to the sufficiency of the fund out of which the compensa-
tion is directed to be paid, in any case where the party claiming
it, shall be found entitled to a pecuniary compensation, no one can
doubt of it ; because the county, within which the property taken
for such purposes lies, is bound to pay, and ever deemed of suffi-
cient ability to do so. But it not unfrequently happens that the
party whose property is only taken in part for public use, is fully
compensated for the loss of that which is taken, by its rendering
the residue of more value than the whole was before. When this
is the case, it is perfectly clear that he can have no claim to fur-
ther compensation from any source. And it is not at all improba-
ble that may turn out to be the case in this instance. But it has
been objected in this case that it was not competent for the legisla-
ture to pass an Act in anticipation of a future increase of the popu-
lation of the city, with a view to accommodate such increased popu-
lation by laying off a district of the country, or lands adjacent to the
city, and directing a survey and location of streets, lanes, alleys,
and public squares, to be made in it, so that if the population
should increase in such degree as to render it expedient to make
it a part of the city at some distant day, it should be added
thereto as such. It would be matter of great regret, I think, if
it were the case, that the legislature could not exercise such a
power. But it is clear that they are not limited by the constitu-
tion in this respect ; and it is equally clear that the public might,
and indeed frequently would be subjected to great inconvenience,
if such a power did not exist, and could not be exercised by them
in prospect of the rapidly progressive and increasing improvement
and population of the state, so as to accommodate and meet the
exigencies of the public at a future day. This was done under
the authority of an Act of the Legislature of New York, passed
in 1816, as appears from the case in the matter of opening Fur-
man Street, in the city of Brooklyn, (17 Wend. 649) ; whereby a
survey was directed to be made of Brooklyn, which was then but
a village, extending the plan of it far beyond its population at that
time, together with a map thereof, exhibiting the streets, roads,
and alleys, to be permanently laid out. The survey and map
were made in 1818, by trustees appointed for that purpose, exhi-
biting the street then in question, among others, as laid out,
which, however, was not to be opened until the future advance
of the population and business of the town should render it neces-
sary. And accordingly no step was taken for opening it under
the provisions of the Act, until 1835, when the town had increased
greatly in size and population, and had become a city. But no
one seems to have thought the Act, or the proceedings under it,
unconstitutional. And the court even went so far in the case as
to hold that the owners of buildings in Brooklyn, erected on the
n. 2c

326 SUPREME COURT. [Pittsburgh.

[District of the City of Pittsburgh.]

site of the streets, as designated on the map of the village, were
not entitled to a compensation for the destruction of such build-
ings, by the opening of the streets, although the order for opening
the same was not made until seventeen years after the approval
and adoption of the map.

It has also been made an objection to the Act of Assembly in this
case, that the select and common councils of the city are required,
on the petition of so small a number as thirty lot-holders, within
any section of the district, to admit the same into the city, and
thereupon to cause the streets, lanes and alleys therein, to be
opened. This certainly cannot be sustained, either upon consti-
tutional or other grounds, as an objection to the validity of the
Act ; for there is nothing in the constitution either to guide or
restrain the discretion of the legislature in respect to it ; and this
being the case, whatever they have directed to be done on the
subject must be submitted to and regarded as the law of the case.

We therefore think the court below erred in deciding the Act
of Assembly, under which the proceeding in this case was com-
menced and carried on, to be unconstitutional ; and that it was
the duty of the court, instead thereof, to have determined that
the map or plan of the said district should either be fully estab-
lished, or otherwise be established with such alteration as they,
upon a thorough investigation of the matter, should have thought
it right to make, in order the most effectually to promote the
public interest and convenience, and not that of private indi-
viduals, which must always be made to yield to the public benefit
and convenience when requisite, or so intended by the legislature.
The record of the case is therefore remanded to the court below,
in order that it may proceed in the matter as required by the Act
of Assembly.

Record remitted for further proceedings.






Archer against Dunn.*

S. A. & W. E. and the firm of I. C. J. O. & Co., merchants, residing in Phil-
adelphia, agreed with N. D. and with each other, to enter into the Chinese trade,
for not less than three nor more than five years : the first named parties furnish-
ing capital to send two ships annually to Canton via England ; and N. D. giv-
ing his services in selling the goods at Canton and investing the proceeds in
return cargoes, separately consigned to the parties in Philadelphia in proportion
to their respective shares. N. D. was not to bear any part of the loss on
dry goods, but was to share equally with the others the profits on their sales
and to receive a commission on specie as well as other parts of each cargo. His
profits and commissions were to be taken out at Canton and shipped on his sepa-
rate account in one of the company's vessels ; and the funds of the other parties
were to be invested for each of them on separate account ; and Chinese goods
separately invoiced and consigned to them in proportion to their shares, without
regard to the state of the partnership accounts. This arrangement continued
during the contemplated period of five years, and was succeeded by another be-
tween N. D., on the one hand, who was to receive a commission on dry goods
instead of profits, and the other parties, on the other hand, except W. E. who
had retired. It was succeeded by another on the same terms, except that the
concern guaranteed that the commissions should not fall short of $25,000 per
year. Held, that a joint action for money had and received, to recover the pro-
ceeds of sales made in the second and third periods, might be maintained by
S. A. & I. C. J. O. & Co. against N. D.

* This case was argued at March Term 1841.


SUPREME COURT [Philadelphia

[Archer v. Dunn.]

Held also, that N. D. could not set-off in such suit a deht due to him by
S. A.

Where a contract for commissions to an agent abroad is uncertain in its terms,
containing blanks to be filled by the other party, which never is done, the amount
of charge for commissions must be collected from the letters and acts of the par-
ties ; and if the agent charges commissions in the accounts sent to his principals
during several years, and is suffered to run through a succeeding contract with-
out measures being taken to undeceive him until his return home, the interpreta-
tion of the contract, where it is doubtful, ought to be in his favour.

The amount of interest is to be determined by the law of the place where the
contract is to be executed. It may be expressly reserved, though it exceed the
rate allowed by the law of the domicil or the law of the forum ; and where no
rate is stipulated, the parties are presumed to have contracted with reference to
the law of the place of performance, whether statutory or customary. If the
contract is to be executed in China, the measure of damages for the breach of it
is the customary rate of Chinese interest.

THIS was an action of assumpsit originally brought by Samuel
Archer, Isaac C. Jones, Richard Oakford, and Samuel T. Jones
against Nathan Dunn, in which the plaintiffs declared for a large
sum of money had and received by the defendant to their use.
After the institution of the suit Samuel Archer died, and the trial
was had in the names of the survivors. The defendant pleaded
non assumpsit and payment, and claimed a set-off of a sum of
money due to him from Samuel Archer, and also for damages on
account of the plaintiffs not complying with their contract to send
two ships a year to Canton via Liverpool. The cause was tried
at JVm Prius before Mr Justice Rogers, and a verdict was ren-
dered, by consent, for the plaintiff, subject to the opinion of the
court, the amount due, if any, to be fixed by the court or the
counsel. The defendant moved for a new trial.

The suit was brought to recover back moneys received by the
defendant as the plaintiffs' agent or factor at Canton, in China.
The defendant claimed to retain the moneys as his own property,
in conformity with his accounts rendered to the plaintiffs. The
plaintiffs objected to certain charges in these accounts as errone-
ous, alleging that the defendant was not entitled to withhold these
sums of money, but was bound to pay them over. The claims
consisted of three kinds: 1. An alleged overcharge by the de-
fendant of the amount of commission he was entitled to for mer-
chandise which left England for Canton, viz., the overcharge of
5 per cent, on gross sales, instead of 2^ on gross sales and 2^ on
nett proceeds. 2. The retention of a large sum of money as com-
missions on the ship Isabella on her 4th voyage to Canton ; which
the plaintiffs alleged was to be placed in the second period, viz.,
from the 13th of July 1828, and terminating on the 13th of July
1830 ; and the defendant contended that it came under the ar-
rangement from 1826 to 1828. 3. A claim of interest at 12 per
cent, on the sums retained by defendant.

The evidence was voluminous, consisting of the agreements of
the parties, their correspondence during many years, and the ac-

Dec. 1641.] OF PENNSYLVANIA. 329

[Archer v. Dunn.]

counts between them, with arguments and discussions on the sub-
jects in controversy prior to the institution of this suit.

It appeared that the plaintiffs were merchants residing in Phi-
ladelphia, and projected a course of trade on a large scale from
Philadelphia to Canton, for which purpose they employed the
defendant to go to Canton and reside there. The contracts
between the parties underwent several changes from time to
time. The first agreement was entered into on the 12th of
July 1821, (in connection with Whitton Evans, who withdrew
in 1826), and was for a residence there by the defendant for not
less than three nor more than five years ; and under it he remain-
ed five years : and the defendant was to be compensated partly
by a commission and partly by one-quarter of the profits. The
second agreement was for a continuance of two years further from
the 13th of July 1826, and the compensation to be by a charge
of commissions. A third agreement was made for his residing
there two years from the 13th of July 1828, to end on the same
day in 1830; the commissions the same, but 825,000 per annum
was guaranteed. The defendant went to Canton, and continued
there the whole time agreed on, and returned to this country on
the 22d of November 1831. The dispute turned on the second
and third agreements, the first being used only for illustration.

During the time agreed on, from 1826 to 1828, the plaintiffs
despatched the following ships from Philadelphia to Canton via
England : The Isabella (third voyage) arrived in Canton on the
5th of February 1827. The Woodrop-Sims, on the 7th of No-
vember 1827; the Globe, on the 28th of February 1828; and the
Isabella (fourth voyage) on the 13th of October 1828. This last
vessel sailed from Liverpool on the 15th of May 1828. If she
fell within the contract from '28 to '30, the commissions on her and
the Tobacco Plant exceeded $50,000, the sum stipulated by the
agreement. If she belonged to the second period, the commissions
of this year were deficient by nineteen or twenty thousand dol-

Most of the foregoing vessels, as well as several others, went
from Philadelphia to Canton via Liverpool. There were some
others sent direct from Philadelphia to Canton, about which there
was no dispute, namely, the Newport and the Tobacco Plant.
There arrived in China to defendant, on consignments by plain-
tiffs, during the four years from the 13th of July 1826, to the 13th
of July 1830, as follows, viz. :

Ship Tobacco Plant, (fourth voyage), 17th of October 1826, from

Ship Isabella, (third voyage), 5th of February 1827, from Liv-

Ship Newport, 12th of August 1827, from Philadelphia.

Ship Woodrop-Sims, 5th of October 1827, from Liverpool.

Ship Globe, 28th of February 1828, from do.
n. 42 2c*

SUPREME COURT [Philadelphia

[Archer v. Dunn.]

Ship Isabella, (fourth voyage), 13th of September 1828, from

Ship Tobacco Plant, (fifth voyage), 13th of August 1829, from

Ship Isabella, (fifth voyage), 23d of December 1829, from Liv-

The defendant made out accounts current, from time to time,
separately, with S. Archer, and with Jones, Oakford & Co., in
which expenses, charges, &c., on all goods purchased for home-
ward shipment, as well as on outward cargoes, were charged
equally, one-half to S. Archer and the other half to I. C. Jones,
Oakford & Co. The account-sales were all headed sales by N.

D. of cargo received per ship , for account of Samuel

Archer and I. C. Jones, Oakford & Co., of Philadelphia.

The following agreements and correspondence were read in
evidence on the trial :

1821, July 12. Agreement between Samuel Archer, I. C. Jones,
Oakford & Co., and Whitton Evans of the one part, and Nathan
Dunn of the other part.

The first named parties having determined to enter into the
China trade on joint account, and to make the same their prin-
cipal business, mutually bind themselves to continue the same for
a term not short of three, nor exceeding five years, unless it should
be found that the business cannot be continued (during either of
those periods) without a loss, in which case, a majority in the
United States may annul the same at an earlier time.

The first named parties engage to furnish the whole capital to
carry on said trade, and to send not less than two ships in each
year to Canton, via England.

Nathan Dunn agrees to proceed to England to procure a cargo
of dry goods, to be shipped on board the ship Columbian, with
what specie the first named parties may ship, and proceed to

With a view of embracing all the advantages of the China
trade, N. Dunn agrees to reside in Canton during the period this
arrangement may continue, and to transact all the business of
said concern.

The first named parties agree to allow Nathan Dunn three per
cent, commission on all the specie shipped, and one-fourth of the
profits arising on the sale of dry goods to be received in Canton
on closing the sales of each shipment, and three per cent, on sales,
and three per cent, investment of proceeds of all other cargo (than
dry goods), by the concern: but no commission for investing the
proceeds of dry goods.

The first named parties mutually agree that should there be a
loss on any cargo of dry goods sent by the concern to Canton,
that Nathan Dunn is to bear no part thereof.

Dec. 1841.] OF PENNSYLVANIA. 331

[Archer v. Dunn.]

The first named parties mutually agree, that in placing funds
in England, each one is at liberty at their own risk, to make
remittances or shipments in any way they may deem most to
their interest, for their respective proportion.

The first named parties are each to receive one-fourth of the
profits arising out of the sale of dry goods, and each one-third of
the profits on the sale of other cargo.

All the funds invested at Canton on account of the three first
named parties to be in separate invoices, consigned to them sepa-
rately, each containing as near the same kind of goods as possible,
and occupying nearly the same tonnage.

Nathan Dunn is to ship his proportion of the profits arising out
of the sale of dry goods, in nearly the same description of goods,
and occupying nearly the same proportion of room, as the first
named parties, in the first vessel belonging to, or chartered by
the concern after the sales of the cargo are closed in Canton ; the
freight on his tonnage to be at the same price as the concern's.

It is agreed that in estimating the cost of dry goods in Canton,
that the exchange on England shall be taken at par, and all that
the sales produce above this estimation shall be divided as above
specified ; subject, however, in the United States, to the charge
of the current rate of exchange, or price of bills at the time of
remittance to England for the payment of the same, with com-
mission, insurance, and interest, until in funds for the same in

If the above charges should exceed the par of exchange, N.
Dunn's agent is to pay his proportion to the first named parties
in Philadelphia. Should they be under the par of exchange, the
first named parties to pay N. Dunn's agent his proportion.

The first named parties agree to allow N. Dunn, in lieu of rent
of factory, provisions, servants, cumshaws to linguist and house
compradore, if two ships arrive within each year, $1667 on each
ship; if three or more within the year, $550 to be charged on
such additional ship, to be received in Canton, and three per

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania [May term 1841 - May term 1845] (Volume 2) → online text (page 37 of 68)