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appeal shall be duly taken and entered. Accordingly it has been
held to be error, to permit the judgment of ihe justice to be read
to the jury on the trial of the appeal. Besides the tenth section of
the same act which authorizes transcripts of judgments obtained
before justices of the peace to be entered on the proihonolary'a
docket, in order to create a lien upon the real estate of the defen-
dants lying within the county, with a view to render the lien effec-
tive and to give the plaintiff the benefit of it, expressly allows him,
after having issued an execution on the judgment before ihe justice,
directed to the proper constable, and a return made thereon by the
constable that no goods are to he found, to have a fieri facias issued
by the prolhonotary upon the transcript so that the real estate of the
defendant may be taken in execution to satisfy the judgment. Now
it cannot be pretended that the plaintiff is at liberty to proceed thus
where an appeal has been taken; otherwise the right of appeal is
given to little purpose, if the plaintiff may, notwithstanding, pro-
ceed on the transcript to collect the amount of the judgment ren-
dered by the justice of the peace. But it is perfectly manifest, that
this proceeding lo collect the amount of the judgment given by the
justice cannot be had at all in case of an appeal being taken ; for
no fieri facias can be issued on the transcript without n previous
vn. 2 v*

542 SUPREME COURT [Pittsburgh

[Hastings v. Lolough.]

execution being sued out before the justice on the judgment; nor
even then can it be done unless it shall appear, by the return of the
constable, that the judgment cannot be levied out of the defendant's
personal estate. The justice however cannot issue an execution
upon a judgment given by him that has been appealed from in any
case, so that the lien of the transcript, if it existed, would be rendered
inefficient by the appeal, on account of not being able to use the
means prescribed in other cases, for obtaining the benefit of it. It
is clear, therefore, that the various provisions of the act, when taken
together, prove most abundantly, that the transcripts of judgments
appealed from, though entered on the docket of the prothonotary,
were not intended to bind the real estate of the defendants therein
named. It would also be contrary to every principle of analogy in
the law to hold that they did. The argument, therefore, of expe-
diency, however useful it might be, that it would be giving to the
plaintiff a reasonable security for the payment of his judgment in
case it should be affirmed on the appeal, which was used by the
counsel for the appellant, cannot, avail. And the provision made
for this purpose by the compulsory arbitration law, in declaring ex-
pressly that the award of the arbitrators, in favour of the plaintiff
against the defendant for a certain sum of money, shall be a lien
for the amount thereof and continue to be so on the real estate of
the defendant, notwithstanding an appeal taken from the award,
until it shall be reversed upon trial of the appeal, makes strongly
against the appellant here ; because it shows that without such
express provision it would not have bound the real estate of the

Decree affirmed.

Todd against Figley.

A bailment is founded upon contract express or implied, and all questions
arising out of it are within the jurisdiction of a justice of the peace under the
act of 1810.

If injury happen to property in the hands of a bailee, the interference of the
bailor to remedy the evil, will not release the bailee from liability for the con-
sequence of his negligence.

ERROR to the common pleas of Butler county.

William Figley against James Todd. This action originated be-
fore a justice of the peace, in which the plaintiff claimed to recover
(he price of a horse loaned by him to the defendant, and which,
while in his possession, was kicked and died. The first question raised

Sept. 1838.] OF PENNSYLVANIA. 543

[Todd v. Figley.]

was, whether the justice had jurisdiction of the cause of action 1
The court below (Bredin, President) ruled this point in favour of
the plaintiff. It appeared in evidence that after the horse was kicked
the plaintiff employed a person to examine the wound, and take
some care of it. The defendant therefore contended that this in-
terference by the plaintiff exonerated him from any liability which
he might otherwise have been under ; but the court ruled this point
also in favour of the plaintiff.

Shannon, for plaintiff in error.
Jlgnew, for defendant in error.

The opinion of the Court was delivered by

KENNEDY, J. The two errors first assigned, which raise the prin-
cipal if not the only question in the case, allege a want of jurisdiction
in the justice of the peace, before whom the suit was originally com-
menced. The act of 1810 gives justices of the peace "jurisdiction
of all causes of action arising from contract, either express or im-
plied, in all cases where the sum demanded is not above 100 dollars,
except in cases of real contract, where the title to lands or tenements
may come in question, or action upon promise of marriage." These
are the words of the act; and seeing they expressly embrace all
causes of action arising from contract, either express or implied,
when the sum demanded is not above 100 dollars, except in cases of
real contract, where the title to lands or tenements may come in
question, or cases founded upon breaches of promises of marriage,
the present case, being one of bailment, would seem to be clearly
included and brought within the jurisdiction of a justice of the peace,
because every species of bailment is grounded upon contract, either
expressed or implied. " Bailment," says Sir William Blackstone, 2
Bl. Com. 451, " from the French battler, to deliver, is a delivery of
goods in trust, upon a contract expressed or implied, that the trust shall
be faithfully executed on the part of the bailee ;" or, as Mr Justice
Story has it, "for some special object or purpose, and upon a contract
expressed or implied." All the writers, as also all the authorities on
this head, concur in laying it down that every species of bailment is
founded upon a contract, either expressed or implied ; thus using almost
the identical terms employed in the act, for the purpose of defining
the extent of the jurisdiction thereby given to justices of the peace.
See Jones on Bailment 1, 90, 117 ; 2 Kenfs Com., sec. 40, p. 437;
Coggs v. Bernard, 2 Lord Raym. 909 ; 3 Chilly's C. L. 354. Bail-
ment, according to Sir William Jones, consists of, or may be divided
into, five sorts : 1. Depositum, or deposit ; 2. JWandatum, or commis-
sion xvithout recompense ; 3. Commoc/a/um, or loan for use without
pay ; 4. Pignori acceptum, or pawn ; 5. Localum, or hiring, which is
always with reward. The case before us falls within the third spe-
cies of bailment, which is a loan for use, that is, a bailment or loan
by the plaintiff below of his mare to the defendant, to be used by the

544 SUPREME COURT [Pittsburgh

[Todd v. Figley.]

latter, who thereby became the bailee for a time without reward.
Jones on Bailment 36, 117. The bailee or defendant below being
the only person, as it would seem, who was to be benefited by the
loan of i he mare, was therefore bound by (he obligation arising from
his implied contract to take extraordinary care of her; and he became
liable to make good to the plaintiff below any loss which he might
sustain by reason of an injury happening to the mare even from
slight neglect on the part of him the defendant. Jones on Bailment
10, 65, 119; Coggs v. Bernard, 2 Lord Raym. 909. The declara-
tion is not drawn with as much adaptation lo the plaintiff's case, as
disclosed by the evidence, as it might, have been ; for, according to
the evidence, so far as recapitulated by the court in the charge to
the jury, it did not appear that the defendant below had abused or
wilfully violated the trust reposed in him in any way whatever.
The evidence merely tended, at most, to show that he had not be-
stowed sufficient, care and attention upon the mare, and had been
guilty of some slight neglect ; so that the case disclosed by the evi-
dence is nearly identical with the case of M'Cahan v. Hirst, decided
at the last Harrisburg term, ante 177. We held there that the jus-
tice of the peace had jurisdiction, to which I wish to refer, in order
to avoid repeating what is said there in support of the decision sus-
taining the jurisdiction of the justice.

The third error does not clearly appear to be well founded in point
of fact : for upon a fair construction of the charge of the court to the
jury it would seem to have been left lo the jury to decide what was
the occasion of the mare's death ; and if they should be of opinion
that it arose from want of proper attention and care on the part of
the defendant below, or in other words from neglect, though but
slight, he was liable and ought to pay the value of the mare, if they
should find also that he had borrowed her for his own use, without
reward. It would rather appear from the charge of the court, and
it is all xve have to judge from, as the evidence given on the trial
has not been brought up with the record, that the comested point
was not whether the mare died of the apparent injury she had re-
ceived, but whether it was occasioned or not through the neglect of
the defendant below. It would seem from the charge of the court
not to have been seriously denied that the mare died of the wound
inflicted upon her by the kick of another animal of her kind, as was
supposed, but earnestly insisted on that it had not happened through
any neglect whatever on the part of the defendant below.

There is nothing in the fourth error. It would be strange indeed
if the circumstance of the plaintiff's getting a farrier, or other person
whom he considered capable of rendering relief, by advice or other-
wise in such case, to examine the wound or injury upon the mare,
should exonerate the defendant from his responsibility, if the death
of the mare was occasioned by his neglect. Even had the plaintiff
below taken his mare from the defendant, as soon as he discovered
that she was hurt, and done all he could with a view to cure her,

Sept. 1838.] OF PENNSYLVANIA. 545

[Todd v. Figley.]

but failed, which would have been going much farther than he did,
still it would not have furnished the least pretence for claiming that
the defendant was thereby discharged from his liability.
Judgment affirmed.

M'Gee against Campbell.

A sale and delivery of personal property for the purpose of hindering and de-
feating creditors in the collection of their debts, is fraudulent and void as to
such creditors ; but good and available as to the parties themselves. Nor can
the creditors avoid such sale and delivery except by legal process ; and in taking
the property without such process they are trespassers ; and the officer taking
it with process out of his jurisdiction thereby becomes a trespasser.

ERROR to the common pleas of Jefferson county.

John B. M'Gee against William Campbell and Henry Smith.
Trespass vi et armis for taking two horses. The facts of the case
seemed to be, that Richard Wolverton had been the owner of the
horses, and, being indebted, he made a pretended sale of them to the
plaintiff, with the fraudulent intention of preventing his creditors
from levying and selling them, and delivered the possession of them.
The plaintiff gave his note to Wolverton for the price of them, and
removed them into Clearfield county, a short distance from where
Wolverton lived. The defendant obtained a judgment against Wol-
verton in Jefferson county, and an execution, which he put into the
hands of Henry Smith, the other defendant, who was a constable,
and they went and found the horses in Clearfield count}', in the
possession of the plaintiff, and took them away.

The court below instructed the jury that if they believed the trans-
action between Wolverton and M'Gee was fraudulent, it vested no
title to the horses in the plaintiff, and therefore he could not recover.
This was the subject of the error assigned.

M'Calmont, for plaintiff in error.
Bujfington, for defendant in error.

The opinion of the Court was delivered by

KENNEDY, J. The sale of the property in question by R. Wolver-
ton to M'Gee, the plaintiff, was most probably made for the purpose
of preventing the creditors of Wolverton from enforcing the payment
of the debts due to them ; and was therefore no doubt void as against
them. But it was not only good and binding as against the parties^
that is, Wolverton and M'Gee, but likewise against all the rest of the

546 SUPREME COURT [Pittsburgh

[M'Gee v. Campbell.]

world, excepting the creditors of Wolverlon. Notwithstanding,
however, it was void against, them, still they could not seize or take
the property wherever they happened to meet with or find it, unless
under legal process giving and extending an authority to the place
to do so. Campbell, one of the defendants, it is true, had obiained
a judgment against Wolverton before a justice of the peace in Jef-
ferson county, upon which an execution had been sued out directed
to Smith, the other defendant, and was in his hands at the time that
he and Campbell took the property. But this execution did not au-
thorize Smith to go beyond the limits of (he county to seize property
under it. If he went out of the county of Jefferson, where the jus-
tice resided before whom the judgment was obtained and from whom
the execution was issued, it was the same out of the county as if he
had no process whatever in his hands against Wolverton. Having
no authority then to take the property except in Jefferson county, it
follows of course, and necessarily loo, that he became a trespasser in
taking it in Clearfield county. Campbell had no authority, and
could not have justified himself for having touched the property, ex-
cept it had been to have assisted Smith, upon his request, in Jeffer-
son county, had the property been found there, where Smith himself
would have been justified in taking the property by virtue of the
execution in his hands. Smith and Campbell were then both tres-
passers here. The question next presents itself, seeing a trespass
was committed, against whom or upon whose rights was it com-
mitted? If Wolverton had not parted with his right in the property
to M'Gee, it is perfectly clear that, as the owner of it, he might have
main(aine,d an action of trespass against the defendants for having
taken it; but having previously sold and transferred all his right
therein to the plaintiff here, it. is equally clear that he could maintain
no such action, because, as against him, the transfer is perfectly
good and available. Upon it, if he were in the possession of it, and
should attempt to withhold it from the plaintiff against his consent,
the latter might recover it from him. This being the case, what is
there then to prevent the plaintiff from maintaining the action? He
is invested with the same right to the properly that Wolverton would
have had, provided he had not sold to the plaintiff: consequently the
latter may maintain this action. No plausible objection can be made
to his doing so. For although the sale and transfer of the property
by Wolverlon to the plaintiff may be, and doubtless is, void against
the creditors of the former, because made fur the purpose or with a
view to hinder, delay or defraud them in the collection of their debts,
yet they have no right to meddle with or take it, unless they will
come armed with the authority of the law for that purpose. The
court below seem to have entertained the idea that if the sale to the
plaintiff was fraudulent it was therefore void to all intents and pur-
poses against all the world, and that no right of property whatever
became vested in the plaintiff by it. This, however, is not the case,
because it is good and available against every body and for every

Sept. 1838.] OF PENNSYLVANIA. 547

[M'Gee v. Campbell.]

purpose, except, as against the creditors of Wolverton, and even as
against them it is sufficient to protect the plaintiff in the possession
and the enjoyment of it, unlil they shall take it by virtue of legal
process suiied to that end. The court below therefore erred in di-
recting the jury that it did not alter the case, even if the property
were taken by the defendants in Clearneld county; and that the
plaint iff could not recover in this action, if they found the sale to the
plaintiff to be fraudulent, whether the property was taken in Jeffer-
son or Clearfield county.

Judgment reversed, and a venire de novo awarded.

Holdship against Patterson.

A benefactor may provide for a friend the means of subsistence for himsel
and family without exposing his bounty to the debts or improvidence of the
beneficiary. He has an individual right of property in the execution of the
trust, of which he cannot be deprived by an execution against the trustee.

ERROR to the district court of Jllleghany county.

Henry Holdship against Robert Patterson. Amicable action on
the case.

Case stated by the court, which, by agreement of the parties, is
to be considered as a special verdict.

The defendant, Robert Patterson, on the 1st of January 1823, and
for some years previous, was a partner in trade with one Jonathan
H. Larnbdin in the business of bookseller and stationer in this place
(Pittsburgh). On that day they failed to a large amount, and made
assignments for the use of their creditors.

In two of them the plaintiff is an assignee. Nevertheless, a ba-
lance remains due and unpaid to the plaintiff, which was afterwards
put in suit in the district court of the United States, and judgment
obtained for the sum of 3766 dollars.

At the time this judgment was obtained the defendant had in his
possession certain property, consisting of stock in the bookselling
business, &c. &c., which he claimed as agent or trustee for his chil-
dren. This property the plaintiff claimed or asserted to be the pro-
perty of defendant, accumulated by his labour and industry since his
insolvency, and therefore justly liable to be taken in execution to
satisfy his former creditors. The defendant disclaimed the beneficial
ownership of the property, claiming it to be in his children, for whom
he acted as agent and trustee ; and that therefore he had no right to
convert this property into funds to pay his former debts ; nor had the
plaintiff a right to levy on it for the purpose of such satisfaction.

548 SUPREME COURT [Pittsburgh

[Holdship v. Patterson.]

In order to settle this question amicably this issue has been formed
and submitted to the court. The inquiry has been conducted with
great candour and liberality on both sides, showing a disposition to
have the case decided on its merits, without regard to form, that the
parties may each know their rights and their duties, and be governed
accordingly. Hence, although Robert Patterson is made defendant
in the issue, yet as his children were the persons claiming the bene-
ficial ownership of the property, and therefore should have been made
the party defendant, the case was so treated, and Robert Patterson
was himself examined as a witness, even without being required to
be sworn, and his statement and discourse received as evidence and
as the admitted facts of the case ; hence there is no discordant testi-
mony or difference of opinion between the parties on the facts of the
case, but they are admitted to be as in the testimony above, taken
down by the court, and are briefly as follows :

Robert Patterson, at the time the firm of Patterson and Lambdin
failed, as already stated, became completely insolvent, but honestly
gave up all his property to his creditors. In the year 1823 he was
out of business and without means of support for his family, which
consisted of a wife and six minor children.

While in this situation a number of his friends, in order to afford
relief to his family, entered into the following agreement, dated Pitts-
burgh, January 15, 1824.

Whereas Robert Patterson, of the city of Pittsburgh, has been un-
fortunate in trade, is left without means for the support of his family,
and under a load of debt which he cannot reasonably expect ever to
be able to pay; arid whereas we, the subscribers, feeling influenced
by motives of friendship and humanity, and confiding in his capacity,
integrity, industry and economy, are disposed, under these circum-
stances, to render him such assistance for the support of his family
as we deem proper. We do agree and engage to contribute (on or
before the 2d day of February next, or at such other time as may be
specified opposite the signature of each) the sums severally annexed
to our names, expressly and solely for the purpose of affording relief
and support to the family of said Robert Patterson, and the means of
educating his minor children, and in no manner or way for the inte-
rest or advantage of said Robert Patterson, except only a mainte-
nance to be allowed him for his services rendered.

We also agree and direct that the amount of said sums shall be
employed in the way and manner specified below, viz. that after
Juliet, the eldest child of said Robert Patterson (she being now be-
tween nineteen and twenty years of age) shall, by proper document,
be released from ajl obligation, and responsibility to her father, or
control under his authority, so that she may act independently for
herself; we will pay over to her the several sums as above stated,
taking her receipt for the same, redeemable in all four to five or six
years, with payment of legal interest, semi-annually, provided that
she engage to employ her father, and no other person without our

Sept. 1838.] OF PENNSYLVANIA. 549

[Holdship v. Patterson.]

entire consent, as agent, to trade, deal, barter, buy and sell, in her
name, for the above mentioned purposes, and for no other purpose,
allowing him only a reasonable support for his services rendered ;
provided, also, that in case of her death or marriage the same trust
shall descend, with all its provisos and appurtenances, to the next
eldest child of said Robert Patterson, and so on, in the same way
and manner as often as the occurrence of death or marriage or any
other sufficient cause shall render the same necessary. Provided,
furthermore, that in case of the death of said Robert Patterson before
the aforesaid capital is entirely redeemed, as provided for above, said
business, be it what it may, shall be continued under the discretion
and friendship of the contributors of a major part of said trust (re-
maining unsatisfied) for the purposes as before specified. Again,
when said capital shall have been entirely redeemed and refunded
as provided above, the proceeds and stock remaining shall accrue to
the benefit and use of the family of said Robert Patterson, he being
hereby, in such event, appointed the guardian and trustee of the
same for their use as long as he shall live, and for the equitable and
fair distribution to his widow and children after his demise. It is
farther hereby agreed and provided that said Juliet or her successor
shall, once in every year, cause to be furnished a true and mercan-
tile report of the stale of said trust, in order that the contributors may
be well informed whether their wishes are gratified by the above
objects being realized and by a good prospect of success in future, or
whether, on the contrary, from any cause whatever, the state of the
case shall indicate a losing concern, and justify a close of the busi-
ness and withdrawal of the capital, which right of dissolution we
reserve to ourselves, if manifest want of success shall, after a trial of
not less than eighteen months, make it appear to be absolutely ne-
cessary, in the opinion of the contributors of a major part of the whole
sum thus entrusted.

Witness our signatures, &c.

In conformity with the spirit and design of the trust, specified on
this sheet of paper, to my daughter Juliet, for the use and support of
my family, &c., I do hereby renounce all my right to her personal
services, and disclaim all demands of responsibility on her part, and
all interest in any profits to myself, arising from her investiture of
the said trust, which would otherwise be matter of right and subject
of control belonging to me as her father.

Witness my hand and seal, day and date before mentioned.

Attest, Joseph Patterson. ROBERT PATTERSON, [L. s.]

Form of receipt given by Juliet Patterson.

Online LibraryPennsylvania. Supreme CourtReports of cases argued and determined in the Supreme court of Pennsylvania (Volume 7) → online text (page 63 of 74)