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the said defendant, in consideration thereof, undertook, and then and
there faithfully promised the said plaintiff to pay him money accord-
ing to the tenor and effect of his said several promises : neverthe-
less," &c.

Pleas : JVon assumpsit. JVon assumpsit infra sex annos.

On the trial of the cause, the plaintiff gave in evidence as follows,
viz.

1. The note under seal of John and Joseph Patterson to W. Rus-
sel, dated Detroit, 26th of April 1814, for the payment of 1209 dol-
lars 50 cents, in sixteen months.

2. The letter of defendant to plaintiff, on which the present suit is
founded, and is as follows.

"November 10, 1818. Dear Sir: John Patterson and myself
have purchased out Joseph Patterson's interest in the lanyard, and
have undertaken to pay you the amount of the obligation you hold
on John and Joseph Patterson. As much indulgence as you can
possibly extend to us will be gratefully acknowledged. I have en-
tered into this business with a view of accommodating the Mr Pat-
tersons, and my sole object in addressing you with these lines is,
that you may consider them obligatory on me for the payment of the
money, which shall be done as soon as circumstances will reasonably
admit.

" I am, &c.

" WILLIAM CLARK."

3. The record in common pleas, Crawford county, Russel against
Joseph Patterson, No. 46, August 1830. Suit on the bond of John
and Joseph Patterson to Russel, and judgment by confession.

4. Record common pleas, Crawford county, No. 137, April 1830,
Russel against John Patterson, and judgment on the bond or note
mentioned, 4th December 1830, for 322 dollars 75 cents.

Fieri facias on this judgment to April 1831, and returned by direc-
tion of plaintiff's attorney.

The defendant, by his counsel, requested the court to charge the
jury on the following points, viz.

1. That the letter of defendant dated the 10th of November 1818,
is not a request to forbear to sue John and Joseph Patterson, as stated
in plaintiff's narr., but an assumption on the part of Clark to pay the



Sept, 1834.] OF PENNSYLVANIA. 215

[Clark v. Russel.]

debt, and a request to forbear to sue him, and therefore does not sup-
port plaintiff's narr.

2. Thnt, if it is a request to forbear to sue Pattersons, it is for a
general forbearance, and plaintiff having sued Pattersons since, de-
fendant is discharged from his promise.

3. That, in this case, the statute of limitations is a bar to the
plaintiff's claim, as he did not bring suit in a reasonable time : and
that after the present lapse of time, the law presumes the debt paid
and satisfied: and that the plaintiff has ceased to hold the defendant
for the same, and the whole business has been arranged arid settled
between Clark and Pattersons, and that plaintiff has agreed to look
to his bond only.

4. That if plaintiff intended to resort against defendant on his as-
sumption, he should have done so in a reasonable time : and that
having waited for twelve years, during which time he says nothing
to defendant, but proceeds against the Pattersons, as set forth in the
evidence, he is now barred by the statute of limitations.

Charge by the court.

" 1. The letter from defendant to plaintiff, dated the 10th of No-
vember 1818 does, in the strongest terms, show that he has under-
taken and promised to pay to Russel the bond of John and Joseph
Patterson ; and he, at the same time, requests as much indulgence
as Russel could possibly give. Now as Mr Clarke mentions ex-
pressly that he and John Patterson had bought out Joseph Patterson's
interest in the tanyard, and had undertaken to pay to Russel the
bond of John and Joseph Patterson, when he requests indulgence
and forbearance, it is virtually and in effect a request of forbearance
as to suing that bond ; for if Joseph Patterson was instantly pressed
on that bond by Russel, the necessary result would be that Clark,
who had undertaken to pay it as his debt, would also be pressed.
As the evidence shows you that the plaintiff has granted the very
indulgence which the defendant by his letter requests, we consider
that he is bound, according to his letter " obligatory," to pay the
bond : and therefore do not charge as requested in the first and second
points.

"2. The next question is as to the statute of limitations, in an-
swer to the third and fourth points. If the defendant had requested
indulgence for a short time, the great delay beyond six years might,
have been a bar: but his request is for "as much indulgence as you
can possibly extend ;" and this not merely on a guarantee of a debt
as surety for another person, but for a debt which the letter acknow-
ledges he had assumed as his own, having purchased the tanyard.
And it having been proven that the indulgence was granted so long
as John and Joseph Patterson were considered in good circumstances,
and that they were not sued until they were falling into doubtful
circumstances, we consider that the statute of limitations does not
apply, and is not a bar to plaintiff's recovery."

The opinion of the court was the subject of the errors assigned.



216 SUPREME COURT [Pittsburgh

[Clark v. Russel.]

Derrkkson, for plaintiff in error.
Riddle, for defendant in error.

The opinion of the Court was delivered by

GIBSON, C. J. The proposed forbearance was evidently to be per*
petual as to the obligors, the indulgence spoken of being referable to
those who were to pay the debt. The defendant reciting that he
and John Patterson had undertaken to pay the obligation of John
and Joseph Patterson, requests indulgence; and for whom 7 ? Not
for the obligors; but, as is apparent from the use of the word
" us," for John and himself, who had agreed with Joseph to substi-
tute their joint responsibility for the joint and several responsibility
of the obligors. It is undoubted that had the plaintiff pressed his
original security, Joseph might have been compelled to press the
agreement of the defendant and John ; and that the defendant might
thus have been affected indirectly. Had he indeed proposed to con-
tract but an indirect responsibility, it might have been intended that
the indulgence sought as a consequence was to follow the nature of
it. But he proposed positively and directly to pay the debt as soon
as circumstances would permit; and in the absence of an intimation
bearing the other way, it is reasonable to infer that the indulgence
was meant to correspond with the liability proposed as the considera-
tion of it. The responsibility proposed therefore being direct, the in-
dulgence was also to be direct. But not only was indulgence to be
extended to the new contractors, but also forbearance to the original
obligors as necessary to carry out all the parts of the arrangement.
It was for the benefit of the latter that the- defendant had come into
the transaction; and they could be benefited as obligors but by going
out of it at least for a time. But this implied condition of forbear-
ance being general, is also perpetual ; as was determined in Hay-
maker . Eberly, 2 Binn. 510, where it is said, that a promise to
forbear in general, without adding any particular time, is to be
understood a total forbearance. The plaintiff then could accept the
defendant's proposal but on the conditions expressed or implied in it;
and having violated one of these by recurring to the Messrs Patter-
sons on the original security, he has failed to perform the considera-
tion of the defendant's promise, and cannot maintain an action on it.

The decision might be rested at this point ; but a principal excep-
tion below, and therefore necessary to be decided here, is, that taking
the defendant's proposal of forbearance to be such as the judge as-
sumed it to be, yet it does not appear to have been accepted ; for the
plaintiff certainly cannot reserve himself for events and choose his
time to pursue the principal or the guarantee, as the solvency of the
one or the other may dictate. There must be a bonafide forbearance
at the defendant's instance and request. The only case which might
be thought to conflict with this, is Yard v. Eland, 1 Lord Raym. 368,
in which an exception was taken to the declaration, " that it is not
averred that when the defendant desired a day of payment the plain-



Sept. 1834.] OF PENNSYLVANIA. 217

[Clark v. Russel.]

tiff consented to give it him ; but it is only said quod, assumptioni fideni
adhibens, he forbore, so that the defendant might remain in fear all the
time, and the consideration then fails. But to this it was answered by
the court, that "it is averred the plaintiff forbore, &c. which is suffi-
cient consent." But it is to be remarked that this was said on an
exception to the declaration, and it amounts to no more than that for
purposes of pleading ; performance fidem adhibens assumption! is equiva-
lent to performance at the defendant's instance and request ; for no
one would pretend that forbearance induced by any other cause would
charge him. The court never meant to say that. In fact the words
literally import that the act was done on the credit of the defendant's
assumption, which is but. another form of saying it was done at his
instance. On the other hand it is not essential that the plaintiff
should have bound himself to forbear or stay proceedings on the ori-
ginal security so as to give an action for a breach of promise. Such
an agreement would undoubtedly be a valid consideration, and might
be so laid, according to the precedents in cases of mutual promises
which are reciprocally the consideration of each other, and which
must therefore be simultaneous, concurrent and equally obligatory:
but where the consideration is not promise for promise, less than a
positive engagement to do an act which, when done, is to be the me-
ritorious cause of the promise, may be a sufficient consideration for
it. A positive act is more evincive of the distinction than a negative
one. If I promise ray neighbour to compensate him if he will do a
specific act of service for me, and he does it in consequence, he may
maintain an action though he had not bound himself to do it. The
consideration of such a promise belongs to the class called executory,
the promise itself being in its nature conditional. But what if the
defendant should desist, having performed the act in parti He
would forfeit his interest in the promise; neither could he recover a
quantum meruit; and the parties would be where they began. But
the promissor may have sustained damage or at least disappointment
by the other's default. He undoubtedly may ; but it is his folly not
to guard against it by exacting a mutual engagement instead of
making a conditional one, which leaves the party employed to earn
the promised reward or not at his pleasure. Now the condition of
forbearance belongs to the executory class, being usually so stated
in the precedents ; and it differs in no particular from the instance
put, except that the act is of a negative instead of an affirmative
nature ; and it is this negative nature, rendering as it does the mo-
tive of the act equivocal, that induces the mind to hesitate. It might
be supposed, from an expression of the judge who delivered the judg-
ment in Bixler v. Ream^ 3 Penns. Rep. 285, that a positive engage-
ment to forbear was thought indispensable in all cases; but it is
intimated in the succeeding sentences that actual forbearance at the
instance of the defendant may also be sufficient, on the principle
that a single spark of benefit received on the foot of the promise is a
valid consideration. But in the actual state of our law on the eub-

III. CC



218 SUPREME COURT [Pittsburgh

[Clark v. Russel.]

ject, being without that part of the statute of frauds which is inter-
posed for the protection of third persons elsewhere, policy dictates, in
the absence of such an agreement, that clear and satisfactory proof
be exacted that the request was in fact the exciting cause.. The
question then is, whether it sufficiently appeared in the casetm hand
that the plaintiff had forborne at the defendant's instance, in order to
warrant the direction, and verdict produced by it. The evidence
consisted of the defendant's letter of request ; the original obligation
with separate recoveries on it; and parol proof that the obligors had
continued to be in good credit till the suits were brought. There
were no extrinsic circumstances to show that the plaintiff's forbear-
ance had not been merely voluntary ; and there is nothing in the
nature of the act itself to indicate the motive for it. Positive acts,
as already said, are less equivocal, and usually exhibit the exciting
cause of their performance, as in the case of delivery pursuant to a
sale of goods ; but negative acts, unconnected with circumstances of
explanation, and more particularly acts of forbearance, are referable
to no particular cause : and such is their legitimate effect after the
reception of a proposal not responded to, as was the case here, by
word, deed, or sensible change of action. Who can say that the
plaintiff would have pressed the Messrs Patterson at an earlier day
if no overture for indulgence had been made 1 To avail himself of
a proposal received without reply, he ought to have shown a discon-
tinuance of measures demonstrative of an immediate resort to com-
pulsion ; or at the very least, that he had continued to forbear while
the obligors were notoriously in failing circumstances. Of all such
circumstances, the case was destitute ; and even if there had been
evidence to raise the question of assent to the defendant's proposal,
it ought to have been left to the jury as an open one, instead of the
positive instruction given that the defendant was bound to pay the
bond according to the terms of his letter.
Judgment reversed.



Sept. 1834.] OF PENNSYLVANIA. 219



Chess against Manown.

The owner of a private ferry has no right to land boats and passengers at
the terminus of a public highway, between high and low water mark, on the
opposite margin of the river, without the consent of the owner of the soil.

ERROR to the common pleas of Jllleghany county.

James Manown, the defendant in error, brought an action of
trespass quare clausum fregit against the plaintiffs in error, to
prevent them from landing with ferry boats and passengers on his
land. A public road passes through Manown's farm to the edge of
the Monongahela river. Chess owns the land on the opposite side,
and keeps a ferry. Manown contends that Chess has no right to
land his passengers at the end of the road terminating at low water
mark on Manown's land.

The court below charged the jury as follows (Shaler, president) :

"The landing complained of is admitted to have been on the shore
between high and low water mark. To (his point a public road has
been laid out. The question submitted for the consideration of the
court is, whether a ferry can be established from the land of A to the
land of B on the opposite shore, to terminate at low water mark, and
on a public road running down to low water line ; and this is to be
determined by the right of the party to the land adjoining on a navi-
gable river and lying between high and low water mark. This ques-
tion appears to have been already decided in Uberworth v. The Le-
high and Schuylkill Navigation Company, in which Judge Huston,
in reference to it, holds the following language ; * along all rivers,
&c.,' and ending with 'it is better than that of any one else, but
always subject to the superior right of the state.' If this be the law
it establishes the right of the plaintiff to your verdict."

Error was assigned to this charge.

Kingston and Forward, for plaintiff in error.

Fetterman and Foster, for defendant in error, cited Chambers v.
Fury, 1 Yeates 167 ; Cooper v. Smith, 9 Serg. fy Rawle 31 ; 7 Ha-
zard's Reg. 192; Shrunk v. Schuylkill Navigation Company, 14
Serg. <$ Rawle 80 ; 3 Kerfs Comm. 427.

PER CURIAM. The point in this case was decided in Cooper v.
Smith, 9 Serg. <$ Rawle 31, where it was determined that the estab-
lishment of a ferry by law, gives the owner of it no right to land his
passengers or boats on a public highway wilhout the consent of the
owner of the soil. The same principle was held in Chambers v.



[Pittsburgh
[Chess v. Manown.]

Fury, 1 Yeates 167, where it was determined that the dedication of
ground to purposes of public use as a road, gives no right to use it for
purposes of landing or receiving freight. Here the locus in quo was
a terminus of a public highway on the margin of the river : and there
was not even a public ferry to give colour to the pretence of a right
to use the shore as a landing or wharf for the mooring of boats. The
franchise of the public was to pass over the soil, and no more.
Judgment affirmed.



Alexander against M'Ginn.

A partner who purchased, and actually applied, articles for the use of the
partnership, may, if sued alone, plead in abatement that the contract, if made at
all, was made with him jointly with the other partners.

It is not material that the plaintiff was ignorant of the partnership at the time
of the purchase, or whether he gave credit on the responsibility of the partners
jointly, or on that of the defendant individually. The plea is sustained if the
defendant intended the purchase as a partnership transaction, and it came within
the scope of his authority.

ERROR to the common pleas of Mleghany county.

M'Ginn, the defendant in error, was the plaintiff below, and
brought this suit before an alderman to recover the price of a wheel
furnished by him to Alexander. The suit was taken, by appeal from
the judgment of the alderman, to the common pleas, where the
plaintiff filed a declaration in assumpsit. The defendant pleaded non
asswnpsit, payment and set off, with leave to give the special matters
in evidence; which plea was, subsequently, on motion, withdrawn,
and a plea in abatement filed, that the promises and undertakings
alleged in the declaration, if made at all, were made jointly with two
other individuals still living.

The court thus charged the jury.

"The defendant has pleaded in abatement, that he was, at the time
of the transaction, a partner with others in the purchase of the pro-
perty for which this action is brought, and that the purchase was
made on behalf of the partnership. The question of the existence
of a partnership is submitted to the jury ; but how far the defendant
can avail himself of it, if it did exist, as alleged, is matter of law. If
the plaintiff, at the time of the sale knew nothing of the partnership,
and gave credit to the defendant individually, although the article
purchased was for the use of the firm and was applied to the part-
nership concern, I conceive that the plea of co-partnership cannot
avail the defendant. The true criterion is not whether the partner-
ship existed, but whether the plaintiff had knowledge of it, and gave



.
Sept. 1834.] OF PENNSYLVANIA. 221

[Alexander v. M'Ginn.]

credit on the responsibility of the partners jointly, or on that of the
defendant personally. If on the responsibility of the firm, the plea
is sustained and the action defeated ; but if on the individual respon-
sibility of the defendant, the plaintiff must recover ; and of this you
are to judge."

Verdict and judgment were rendered for the plaintiff.

Errors assigned.

1. There was a mis-trial, there being- no replication to the plea in
abatement.

2. The court erred in instructing the jury, that the true criterion
was not whether the partnership existed, but whether the plaintiff
had knowledge of it, and that, although the article purchased was
for the use of the firm and was applied to the partnership concern.

Jl. W. Foster, for plain tiff in error.

There has been a mis-trial, there being no issue joined on the plea
in abatement. The plaintiff below should have replied to that plea,
"that the promise and undertaking were made by the defendant alone,
&c. and not by him jointly and together with the said persons men-
tioned in the plea, &c." 2 Chitt. PL 589. Then as to the second error
assigned, see 1 Saund. 291, 296, 299, Sergeant Williams"' 's note 4.
It is admitted that it is not necessary for the plaintiff to unite a dor-
mant partner of the defendant. He is not bound to consider the
dormant partner as liable. Gow on Part. 194. That however is not
the present case. The case here is where the partner may be known
to all the world as such, but to the plaintiff alone.

J\fetcalf and Burke, for the defendant in error, cited Wilson v.
Wallace, 8 Serg. fy Rawle 55 ; Clark v. Holmes, 3 Johns. 148 ; 3
Stark. Ev. 1082.

The opinion of the Court was delivered by

ROGERS, J. A plea in abatement that there is a dormant partner,
not joined in the suit, who is concerned in interest* will not in all
cases be available, because, generally speaking, the right of the cre-
ditor to proceed against such partner is elective and not compulsory ;
he being under no obligation to consider the dormant as his debtor.
Gow on Partnership 194; 8 Serg. fy Rawle 55. But this principle
does not extend to known ostensible partnership. There he not only
may, but he is bound to bring his suit against each member of the
partnership, and this, whether the fact of partnership was known to
him or not at the time the contract was made. The true criterion
is not, as is supposed by the court, whether the plaintiff had know-
ledge of the partnership at the time he made his contract, but whether
the contract was with the partnership, i. e. whether the partner
making it intended it a partnership transaction, and it came within
the scope of his authority as partner. If, however, both parties make
the contract as individuals, then, as the partnership could not be



222 SUPREME COURT [Pittsburgh

[Alexander v. M'Ginn.]

charged, neither shall the plaintiff be defeated in his action by plea
in abatement. Clark v. Holmes, 3 Johns, Rep. 146. Murray v.
Somerville, 2 Campbell 99, was the case of an individual contract.
The action was for money had and received. Plea in abatement
that the promise was made jointly with one Stuart and one Montgo-
mery, who are both alive. Defendant proved he had two partners
of those names in America, but several letters from him to the plain-
tiff were given in evidence, which were signed in his own name, and
in which he promised to pay the money in question. Lord Ellenbo-
rough held the letters conclusive evidence that the debt was due
from the defendant individually, and not from the partnership. It
is not put upon the ground of knowledge of the plaintiff, but upon
the nature of the particular transaction, which showed that it was
intended as an individual contract. If on the trial the jury should
be satisfied that the article was purchased on account of the partner-
ship, the plea is sustained, whether the plaintiff knew it was intended
for the partnership or not. The reason given for the rule that de-
fendant must plead in abatement, is grounded on the fact that
plaintiff may not know all the members of the firm, even at the time
of the commencement of the suit. For this reason the defendant
must plead the non joinder in abatement, in which plea he is bound
to give the plaintiff a better writ.

Judgment reversed, and a venire de novo awarded.



Hamilton against Aslin.

Where the supreme court reverses a judgment and orders a venire facias de
novo, and the defendant in error pays the costs on such reversal, in order to take
down the record to the common pleas, where he again obtains judgment, he may
afterwards maintain assumpsit against the plaintiff in error to recover back the
costs so paid by him.

ERROR to the common pleas of Jllleghany county.

In a suit in the common pleas, in which William Aslin was plain-
tiff, and Samuel Hamilton, the plaintiff in error, was defendant, As-
lin recovered judgment. Hamilton took out a writ of error to the
supreme court, by whom the judgment was reversed, and a venire de
novo awarded. Aslin paid the costs incurred in the supreme court,
and took down the record to the common pleas, where the cause was
again tried, and a verdict and judgment rendered in his favour. The
present suit in assumpsit was brought by him to recover the costs he
had paid in the supreme court. The court below charged the jury
that he was entitled to recover. To this charge error was assigned.



Sept. 1834.] OF PENNSYLVANIA. 223

[Hamilton v. Aslin.]

Fetterman, for plaintiff in error, cited Lyon v. M'Manus, 4 Binn.
172; Work et al. t>. Lessee of Maclay, 14 Serg. <$ Rawle 265;
Wright et al. v. Lessee of Small, 5 Binn. 204.



Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 3) → online text (page 26 of 62)