text:
    Spangler versus Springer.
    1. A prior agreement under seal may be referred to by a subsequent parol agreement, and made part of it, so that both shall form but one parol agreement, and assumpsit be maintained.
    2. If the parol modification of the covenant be in such of the plaintiff’s stipulations as were conditions precedent to the action, he would be bound to sue in covenant; but where it is a modification of the defendant’s covenant on which he is called to respond, assumpsit is the remedy; and in such an action, brought upon both instruments as one entire parol agreement, both were competent evidence.
    3. In an agreement under seal, the plaintiff agreed to manage a coal business, and the defendant agreed to compensate him in proportion to the business done, it being agreed that the contract should continue three years if the parties so long agree, hut that either party may terminate it by giving reasonable notice. In a subsequent agreement signed by the defendant alone, but not under seal, it was agreed that if the compensation fell short of $1500 in any year, the defendant was to make up the deficiency at the end of the year:

      Held, that the forbearance of the plaintiff to assert his right to terminate the connection, and his continuance in service under the parol agreement, was sufficient consideration to support the parol agreement and to enable the plaintiff to recover at the rate of $1500 per annum.
    4. An account made by one of the parties against the other, is not an account stated between the parties; and the mere retention by the plaintiff of such an account without objection, is but slight evidence of its correctness in charging him with money paid on his account by the defendant to another, or with a balance of money due to the defendant by such third person. Such account was by no means conclusive against the plaintiff.
    5. An alleged variance between the allegata and probata is not a ground of reversal where no point as to it was made in the Court below, where an amendment could have been made.
    Error to the District Court, Philadelphia.

    This was an action of trespass on the case, brought by John B. Springer v. Christian E. Spangler.
    A narr. was filed alleging a special parol contract, and setting out breaches thereof, and claiming damages. The contract declared on in the third count of the narr. was in the terms stated in an agreement between the parties under seal, and also in a written agreement signed by the defendant alone, which was not under seal; it alleging an agreement made between the parties on the 1st March, 1848, on the terms stated in the sealed agreement, viz., at a certain proportion of twenty-five cents per ton on the coal received and shipped; and alleging, as agreed upon in the second or parol agreement, that in case the said wages should, in any year, fall below $1500, then for the wages of $1500 per annum, &c. The narr. also contained common counts.
    The pleas were non assumpsit, payment, and set-off, with leave &c.
    On the trial the two agreements were offered in evidence on the part of the plaintiff. They were to the following effect:—
    An agreement, under seal, dated 1st March, 1848, between Spangler and Springer, whereby Spangler agreed to employ Springer to conduct and manage the shipping of coal; and Springer agreed to give his undivided attention to the business. Spangler agreed to pay Springer a compensation for his services to be ascertained as stated, the same depending on the amount of coal received and shipped—the estimates of the business done and expenses incurred in conducting it, were to be made out on the first days of July, October, January, and April of each year, and the amount which should be due to Springer for his services, upon a calculation made, was to be paid or credited to him.
    It was further agreed that the contract was to continue- in force for three years from the date, “ if both parties can agree so long.” But (it was provided) it may be terminated by either party giving to the other reasonable notice of his intention so to do. The agreement was signed by both parties, and was sealed.

    Subjoined to the agreement before referred to, was the following:
    “ Christian E. Spangler, the party of the first part, agrees, in case the amount coming to the said John B. Springer should fall short during any year below $1500, then the said Christian E. Spangler agrees to make up the deficiency at the end of the year.”
    This was signed by Christian E. Spangler alone, and was without date and was not under seal.
    A witness testified that he saw the paper containing- the two agreements executed. The sealed one was executed at the time it bears date; the second one sometime after the first. On his cross-examination he said the time of the execution of the second agreement was three or four weeks after the execution of the first one.
    The paper containing both agreements was offered in evidence on part of the plaintiff. It was objected to for the reason, among others, that the first of the agreements was under seal; that the second agreement .was without consideration and therefore void; —that the two agreements, taken together, did not support the action; that the declaration set out both agreements together as forming one entire and continuous agreement, made at one and the same time, and as a simple contract, and for one and the same consideration.
    The paper was admitted, and exception was taken.

      Among certain items of moneys paid by defendant to plaintiff, for which the defendant claimed a credit, were three items which were objected to by plaintiff. They were charges against the plaintiff for advances by defendant to the plaintiff’s father, and a sum charged to the plaintiff by the defendant to settle the father’s account. The father was at the same time in defendant’s employ in another branch, of the same business. With regard to those disputed items, defendant called a witness, who testified as follows :—
    “ I know the parties; I was in defendant’s employ in 1 848, as book-keeper. The plaintiff and his father were both in defendant’s employ at that time, in the coal business. These are the books of the coal business, containing the account's of plaintiff and his father with defendant. . There has been money paid to the plaintiff; the following items among others (which were objected to by plaintiff’s counsel), viz.: December 13, 1848, cash $25 ; December 19, 1848, cash $50; December 18, 1848, charged to plaintiff to balance his father’s account, $457.20. This was cash paid to the father, and a sum charged to the -son to settle the father’s account. There was an account rendered to the plaintiff up to January, 1849, making balancé ir£ our favor of $305 and some odd cents. The items with regard to the father, were in that account. The entry here in the book shows $457.20 charged to the son to settle the father’s account. There was an account furnished to father and son, and neither objected. The accounts were furnished in February, 1849, and were brought up to January, 1850.”
    On cross-examination he said: The old man said the account was right; the son said nothing about it; the sums charged to the son have never been charged to the father; the entries have never been altered since they were put down as they are; these sums were allowed as credits to the father in his accounts at the arbitration, in the suit brought by the father against the present defendant, on a contract he had with the defendant in reference to this business. John B. Springer in this account was credited with ten months’ wages, at the rate of $1500 per annum.
    Re-examined: “Springer (the plaintiff) was about the office occasionally about the first of the year. The accounts were not altered before the arbitrators. John (the plaintiff) lived with- his father.”
    There was no other testimony whatever, as to those items. The accounts referred to by the witness, were furnished before the plaintiff and defendant separated, and about a year before this suit was brought.
    The defendant’s counsel argued that as there were no disputed facts with regard to these accounts, they were accounts stated, conclusive in point of law, and that their correctness was a presumption of law which concluded the parties.

      The judge, however, left the question of their correctness to the jury as a presumption of fact, charging, as to them, as follows:—“Among the sums for which the defendant claims a credit, there are three disputed items. It is a presumption of common sense that where an account is presented to a man, he would object if it were wrong. This principle is strengthened by lapse of time, and further strengthened when two accounts are coupled together as in this ease. While the plaintiff remained in the service of the defendant, he did not object to the account, nor did he object before suit brought. If the plaintiff was aware that the items had been drawn from another account, it was his duty to object, or he would subject the defendant to a wrong. I therefore instruct you, that under the circumstances of this case, the account is strong evidence of the correctness of the items relied on by defendant.’
    Verdict was rendered for the plaintiff for $475.
    It was assigned for error: 1. That the Court erred in admitting in evidence the paper containing the agreement under seal and the one not under seal. 2. In submitting to the jury, as a question of fact to be passed upon by them, the legal presumption of correctness arising from the account stated.
    Sheppard, for plaintiff in error.
    It was contended that the parol agreement was not of such a nature as to deprive the sealed agreement of its character of a specialty, and reduce it to a simple contract and make it the foundation of an action of assumpsit. That the second was executed three or four weeks after the first, and was without consideration, and therefore void: 6 W. & Ser. 443, Ellmaker v. Franklin Insurance Company; Chitty on Con. 542.
    But if there were a consideration for the additional agreement, it was contended that it was not of such a nature as to reduce the previous one to a parol contract: 11 East 548, White v. Perkins. It is merely collateral, and may furnish an independent cause of action. If, in respect of a new consideration, there has been a new simple contract, assumpsit may be maintained on the new contract, but not on the original one: 12 East 572; 9 Pick. 292.
    It was further said that the contract was described in the narr. as entire and continuous, made at one and the same time, and for the same consideration. That it was not set out according to the facts, and there was, therefore, a variance between the allegations and the proof: 3 Ser. & R. 578, Jordan v. Cooper.
    As to the second assignment, it was contended that the account submitted was a stated account, and that its correctness was a presumption of law and not of fact, a presumption conclusive on both parties, a “presumptio juris de jure:” 1 Harris 314, Thompson v. Fisher; Pulling on Mercantile Accounts, 32-3, 57 Law. Lib.

      H. M. Phillips and R. C. McKinley, for defendant in error.
    The third count in the narr. was upon the contract as modified by the parol agreement, and to it the evidence conformed. In support of the form of action adopted, reference was made to the case of Vicary v. Moore, 2 Watts 451; also to the opinion in Green v. Roberts, 5 Wh. 88, that where the alteration has not regard to the performance out of time of a precedent condition, but to the covenants on which breaches are assigned, such case admits not of election as to the remedy, but the whole has been turned into parol. In the present case the modification was not of the plaintiff’s stipulations, but of the covenant of the defendant. Also cited opinion of Kennedy, J., in Vaughn v. Ferris, 2 W. & Ser. 46.
    The consideration for the subsequent parol agreement was the performance of the services detailed in the sealed contract, and this appeared in the account of defendant furnished to the plaintiff, and by the books of Spangler, wherein the plaintiff was credited with the salary of $1500 per annum.
    .As to the variance alleged to exist, was cited Miller v. Miller, 4 Barr 317, where the Court say that the variance alleged was between the declaration and proof, as to which no specific direction was asked; and having omitted to point it out, it cannot be assigned as error. If it had been pointed out the declaration might have been amended.

    As to the 2d assignment: It may be true that when an account becomes what is termed a stated account, its correctness may be prima facie assumed; but still it is a_question in every case whether an account offered is an account stated or not. It is not settled what length of time is necessary to establish it as such. Rut it was further observed, that it seemed that the jury had considered the account as conclusive, and had given credit for it, the verdict having been for only $475, while the salary was $1500 per annum. Where it appears by calculation that the jury did not allow credits of which incompetent evidence was given, the judgment will not be reversed on a bill of exceptions to such evidence: 1 Pa. Rep. 364; Id. 140; 5 Harris 520, Schmoyer v. Same.
   The opinion of the Court was delivered by

Woodward, J.

The first assignment is, that the Court erred in admitting in evidence the paper containing the agreement under seal, and the additional agreement between plaintiff and defendant.

The action is founded on these two agreements, and is necessarily in assumpsit. The third count in the plaintiff’s narr. lays them both as the substantive ground of recovery, or rather, as together constituting the contract of hiring in pursuance of which the services were rendered. As evidence, therefore, they were not irrelevant to the issue. Had the parol modification of the covenant been in such of the plaintiff’s stipulations as were mere conditions precedent to the action, he would have been bound to sue in covenant, on the principle of Jordan v. Cooper, 3 Ser. & R. 579, and could not have maintained the present action; but instead of this, it was a modification of the very covenant on which the defendant was called to respond, and as in Vicary v. Moore, 2 Watts 457, drew the retained stipulations of the sealed instrument into parol, and left the plaintiff no other remedy than an action of assumpsit. In Vaughn v. Ferris the rule laid down in Vicary v. Moore was followed, and it was said a subsequent parol agreement cannot be tacked to a prior agreement under seal, between the same parties, so as to make the two agreements one entire agreement under seal; but a prior agreement under seal may be referred to by a subsequent parol agreement, and made part of it, so that both shall form but one entire parol agreement. That is precisely what was done here; and in an appropriate action, brought upon both instruments as one entire parol agreement, both were competent evidence.

It has been suggested on the part of the plaintiff in error that the parol agreement was void for want of consideration; and a dictum of Chief Justice Gibson, in Ellmaker v. The Franklin Insurance Company, 6 W. & Ser. 443, is cited in support of the position. The parol agreement in that case was the agreement of the plaintiff in the action, and the point ruled was that it did not take away his action of covenant on the prior specialty, which is perfectly consistent with the distinction taken in Vicary v. Moore. The remark that if it was executed subsequently, it would be without consideration, may have been appropriate enough to the facts before the Court, but must not be understood as the announcement of a general principle; for the case now before us shows most clearly that the terms and conditions of a sealed instrument may be such as to furnish a consideration for a subsequent alteration. According to the covenant between these parties, Springer’s compensation was determinable by the amount of business which should happen to be done in the coal trade which he was to conduct for Spangler; and though it contemplated three years’ service, there was an express stipulation that either party might terminate it by giving the other reasonable notice of his intention to do so. Instead of so terminating it, and quitting an employment which he found was not likely to remunerate him, Springer remained in service on the faith of Spangler’s parol agreement, made three or four weeks after the date of the sealed instrument, that if in any year the compensation should fall short of $1500, he would make up the deficiency at the end of the year. Eorbearance to assert his right to cancel the original obligation, and continuance in service under the parol agreement, were abundant considerations to support it. That the services were rendered under and in pursuance of the parol agreement, is proved by the account rendered by the defendant, in which he credited the plaintiff, not according to the rate stipulated for in the covenant, but at the rate of $1500 per year. For these reasons, we think the plaintiff in error has failed to support his first assignment of error.

As to the alleged variance between the allegata and prolata, it is sufficient to say, that no point was made in the Court below, where, if necessary, the plaintiff might have amended his narr., and therefore no question of the kind can he entertained here.

Nor has he been more successful with the second assignment. The instructions of the Court as to the effect of the account rendered by the defendant were quite as favorable as he had any right to demand. It was not an account stated between the parties, hut made up by one of them, and there was not a fact, except the retention of the account without objection, to justify the charges against the son, of moneys paid to his father, and of a gross sum to balance the father’s account. The law requires very explicit evidence to charge one man with another’s indebtedness, and there was no such in this case. Mere acquiescence in an account sent to a party was said in Killam v. Preston, 4 W. & Ser. 16, to be very slight evidence that it was correct. If there was error in what the Court said on this point, it was in favor of the complaining party.

The judgment is affirmed.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    McCandlish versus Newman.
    1. Delivery of personal property is not necessary to the vesting of the title, it is only evidence of it; but the delivery should be made in pursuance of the contract.
    2. After a contract of sale is completed, the risk of the property from accident, as between the parties, is in the purchaser where the loss has arisen from accident and without wrongful detention, or delay in delivering it, or carelessness in keeping it, or other fault, on the part of the seller: but if the loss occurs before the contract is completed it must be borne by the seller.
    3. In order to constitute a perfect or complete sale, the subject-matter of it-must be specified and defined by the parties, and this cannot be if the greater portion of the property has not been procured by the vendor.
    4. On 17th October, 1847, the defendants, residing in Philadelphia, addressed the plaintiff residing in Richmond, Virginia, inquiring on what terms he would deliver in New York from 100 to 150,000 hoop poles. To this the plaintiff replied, that he would deliver the quantity specified alongside vessel
      at Richmond at a price stated. On the 21st October the defendants replied agreeing to the proposed delivery, and stating that they would write in a day or two what they would do with the poles. The plaintiff, by letter of the 25th Oct. acknowledged the receipt of the defendants’ letter, and inter alia stated that the hoops were not all on hand but would be had soon. On the 29th, the defendants replied desiring to know how many of the hoops were ready or would be for a vessel which might be chartered at New York to receive them. On the 5th November, the plaintiff replied that he had upwards of 40,000 ready. On the 15 th and 22d, he again wrote that he had no more hoops ready, but that some boat loads were on the way. On the 25th November the defendants wrote that a vessel had been chartered and would take 50,000, and stating that it was desired that they be tied up in bundles of 30, at the expense of the persons interested; and that the plaintiff should have them all ready on some wharf so that there need be no delay.

    A flood occurred on the 25th and 26th November, before the last letter could have been received, and many of the hoops, which had been for weeks on the wharf, wore carried away and others were damaged:
    It was Held, that there was no contract before the plaintiff’s letter of the 25th October, acknowledging the receipt of the defendants’ acceptance of his proposition as to the manner of delivery, and the defendants’ reply of the 29th October, admitting the receipt of the plaintiff’s letter of the 25th; and inasmuch as the greater-part of the hoops were not then on hand, were not in bundles of 30 as suggested, and that the defendants had not been informed that the hoops had been set apart for them, the ownership of the hoops was not then changed but remained in the plaintiff.
    5. Delivery on a wharf is not delivery alongside of a vessel when there was no vessel present to receive the hoops, having been carried away by the freshet before the vessel arrived.
    6. To constitute a delivery the hoops should also have been bound in bundles as directed, and set apart for the defendants, and proof given that the defendants agreed as to the delivery or that notice had been given them that the hoops would be or were delivered.
    Error to the District Court, Philadelphia.

    This was an action of assumpsit by James McCandlish v. James L. Newman and John H. Beale, trading under the firm of Newman & Beale. It was founded on an alleged contract for the purchase of hoop poles, part of which were carried away by a flood, and others were Md again by the vendor, the parties for whom they were intended having declined to take them.
    The pleas were non assumpsit, payment, and set-off, with leave, &c.
    The action was founded on the facts referred to in the correspondence between the parties.
    Néwman & Beale, residing in Philadelphia, wrote a letter dated Philadelphia, October 17, 1847, to J. M. McCandlish, residing in Richmond, Virginia, inquiring at what rate he would deliver in the city of New YorTc 100 to 150,000 of 14 feet W. O. of hickory hoop poles, per M., &e.
    McCandlish, by letter dated Richmond, October 19, 1847, proposed to deliver from 100 to 150 M. alongside vessel at Richmond, at $18.50, &c., and requesting an early reply and to be informed, how soon they would be desired.
    Newman & Beale, by letter of 21st October, replied: “ We have your favor of the 19th, offering to sell 150,000 W. oak or hickory 14 and 16 feet hoop poles, alongside of the vessel, at $18 M. of 1000 pieces. As the poles are described of good quality, we will take them on those terms, and will write you in a day or so, what we will do with them—either ship them direct to West Indies or New York, as the parties to whom we sold them may direct,” &c., inquiring what commission the plaintiff would give them for selling the hoops, and stating that they had named $18 at Richmond, without any of the expenses of putting them alongside being paid by the plaintiff.
    McCandlish replied by letter of October 25, stating that he had observed that Newman & Beale had made sale of from 100 to 150 M. at $18 per M.—the purchaser to be subject to the expense of drayage, wharfage, &c.that he would allow the defendants a commission for effecting the sale and guarantee; and stating “ the hoops are not all here yet, but I can have them here very soon; and you must give me as long notice as you can.”
    Newman & Beale replied, by letter of October 29, stating that the parties for whom the hoops were designed wished to know how many hoops were ready, and how many they could depend on, and when; and if he had a sufficient quantity they would send a vessel for them.
    And in another letter, of November 2, Newman & Beale expressed the expectation of having the next day an answer to their last letter, wishing to know how many hoops were ready, and if he, the plaintiff, would have any more, and what probability there was of the 150,000 being ready to ship, so that a vessel may be chartered to load them; also, to ship one thousand of each kind to New York, as a sample.

    McCandlish, by letter of November 5, 1847, informed the defendants that he had upwards of 40 M. of the hoops, and would endeavor to get the remainder as soon as possible. Newman & Beale, by letter of November 11, informed McCandlish that they had instructed the persons in New York, for whom they were acting, that they thought that by the time a vessel from New York reached Richmond the hoops would be ready, and inquiring whether the sample bundles had been sent. On 15th November, McCandlish wrote that he had received no more hoops in consequence of a breach in the canal, &c. That he would have the hoops drayed to the wharf where the vessel would probably stop, and thus save two drayages.
    On the 22d November he wrote again, inter alia, inquiring what the defendants would give for the hoops he might receive during the season, and that he had received no more since he last wrote, though several boat loads were on the way.
    On the 25th November, the defendants wrote acknowledging the letter of the 22d, and inquiring what he could sell his hoops for, and when they could be delivered, and stating that a vessel had been chartered in New York for Richmond to load the hoops in, and hoping that they would be ready for it: “ She will take about 50,000.” “ They want them tied up in bundles of thirty,” &c.; “what the expense is they will pay;” and requesting him to “ have them all ready on some wharf, so that there need be no delay.”
    The plaintiff, by letter of November 27, acknowledged the letter of the 25th, and informed the defendants that a freshet had occurred on the day previous and the day before (the 25th and 26th of November), and that a good many of “your” hoops had been carried away. He further stated that he had had them carted to a good and safe wharf, to await the arrival of the vessel, but that all the wharves had been inundated.
    From another letter from him, dated December 3, it appeared that the vessel which had been chartered at New York had not then arrived, but was in the river.
    The captain refused to receive the damaged poles. Other correspondence ensued. The plaintiff shipped a portion of the hoop poles received by him to New York, where they were sold; and this suit was brought to recover for those lost, and for a loss on sale of the others which had been sold in New York.
    The judge before whom the cause was tried charged that the delivery of the hoop poles on the wharf was not' a delivery to the defendants, and that the loss occasioned by the freshet must be borne by the plaintiff; and he directed the jury to find for the defendants.

    Verdict was rendered accordingly.
    It was assigned for error, that the Court erred in the charge referred to.

      Porter, for plaintiff in error.
    It was, inter alia, contended, 1. That the poles were delivered in the place designated by the defendants. 2. That the phrase “alongside of vessel” used in the plaintiff’s letter of 19th October, 1847, and the phrase “ready on some wharf,” used in defendants’ letter of November 25, 1847, are identical in meaning. The defendants, through their agents in New York, were to send the vessel from New York to Richmond, and the plaintiff could not comply literally with his offer of 19th October, until the vessel had arrived there. The correspondence shows that unless the articles were “ready” on the wharf before the arrival of the vessel, she could not wait. If the phrases differ, the direction contained in the defendants’ letter, which is subsequent in date to the plaintiff’s, modified his obligation. 3. That the wharf on which they were deposited, was a proper, safe, and suitable place, and the place generally used for such a purpose. 4. That as the hoops were deposited on the wharf in a suitable place, apart from the plaintiff’s own property, and apart from any other articles of the same kind, this, according to the decisions, was a sufficient designation and setting apart to constitute a delivery to the defendants. 8. That it was a question, for the jury to decide whether there was a delivery.
    It was contended that, on a contract of sale, the right of the vendor is divested immediately after the contract of sale is made: 1 Yeates 527. That whether goods marked and separated are actually delivered is a question of intention to be determined by the jury: 3 W. & Ser. 14. On the subject of delivery was further cited 5 Barr 254; 3 Id. 50; 3 W. & Ser. 14; 7 Id. 140; 2 Gill 150; 13 Johns. 294; 10 Smedes & Marshall 376; 19 Pick. 202; 3 W. & Ser. 295; 1 Meigs 22; 11 Shepley 366; Id. 286; 3 Humphrey 542; Walker 370; 14 Wend. 546; 2 Strobhart 309; 2 Hill, S. C. 587; 1 Conn. 60; 1 Harris 148; Cowp. 294; Ryan & Moody 260; 1 Gale & Davidson 417; 20 Verm. 172; 3 Barr 50; 6 W. & Ser. 357-368.

      H. M. Phillips, for defendants in error.
    On the 17th October, 1847, Newman & Beale wrote to McCandlish to inquire at what rate he would deliver hoop poles in New York. On the 19th he wrote declining to deliver in New York, but could deliver them at a certain rate alongside a vessel at Richmond. It was said that this offer was not accepted; but, on the 25th November, the defendants wrote inquiring the price, and when the poles could be delivered; and that a vessel had been chartered, &e. It was contended that till this time there was no contract, and of course no delivery. McCandlish had had some poles hauled there before the date of this letter; one witness said they were hauled there “ a day or two before the freshet;” that the. poles were deposited on the wharf “prior to.November, 1847, and commencing in August or perhaps earlier.” Some days after the 27th November, the chartered vessel arrived; the captain refused the damaged poles, and they were shipped to New York. The letter of the defendants, requesting that the hoops be ready on some wharf, was written in Philadelphia, on November 25th, and it was on that day the freshet occurred; so that the deposit of the hoops was not made in pursuance of any authority or direction of the defendants.
    If anything remains to be done, as between the seller and the buyer, before the goods are to be delivered, a present right of property in the buyer does not attach: 2 Kent 494; 3 Mason 111;
      Blackburn on the Contract of Sale 152, 57 Law Lib.; 1 Camp. 282; 5 B. & A. 632. Where anything remains to be done for the ascertainment of the price, the goods remain at the risk of the vendor: 2 Camp. 240; 6 Cowen 250; 7 Id. 85; Story on Sales, sec. 296; Id. 309; Holt 18; 15 Pick. 171; 7 Barr 140.
   The opinion of the Court was delivered by

Lowrie, J.

This was an action of assumpsit for the balance alleged to be due on a lot of about 100,000 hoop poles sold by the plaintiff to the defendants, part of the chaim being for the difference on a resale of some of the hoops,' and part of it for hoops carried away by a flood before the defendants had taken them into actual possession. The learned Judge of the District Court held that there was no evidence of any delivery to the defendants, and that the loss occasioned by the freshet must be borne by the plaintiff, and therefore ordered a verdict for defendants.

Delivery is not necessary to the vesting of the title; it is only evidence of the vesting ; and therefore this property may have been at the risk of the purchasers even without delivery, for the risk accompanies the ownership, unless there is carelessness in the seller in the manner of keeping the property after the sale, or improper delay in delivering it. After a complete, or, as the Roman lawyers always call it, a perfect sale, is ascertained, then it ,is known on whom the risk of loss or damage is, where it arises from mere accident, and without wrong by another. After that the vendor is but the bailee of the goods, and bound for a bailee’s care, unless where he wrongfully detains them, and we think that, in this case, the plaintiff has proved that he used that degree of care.

Who then owned this property at the time of the flood ? We have, in the ease of Winslow v. Leonard,* expressed our views so fully on the legal principles involved in this question, that we need not discuss them at length in this case. -It is a rule founded in the very nature of things, that there can be no perfect sale unless the subject-matter of it has been defined and specified by the parties. Then the question is, was the lot of hoop poles which were carried away by the flood, thus defined.

It is really very difficult to make out any agreement at all for a sale from these letters; but we assume that one is shown by the plaintiff’s letter of 1847, October 25, and the defendants’ answer of the 29th. Then it was an agreement to sell 100 to 150,000 hoop poles at $18, and expense of drayage, wharfage, &e., and defendants were to be allowed , commission and guarantee for effecting the sale. It is evident that this was not then a perfect sale, for the plaintiff had yet to procure the greater part of the poles.

But it is insisted that the sale became perfect as to 40,000 of the poles by the delivery of them on the wharf at Richmond, in pursuanee of the instructions in the defendants’ letter of November 25. This is impossible, for the flood took place on the 25th, and that letter could not have been written in Philadelphia, received at Eichmond, Va., and the work done all in one day. Besides, all the testimony is that they were placed on the wharf before, if not long before, that letter was written, and the dockmaster testifies that, by virtue of his office, he ordered them to be removed from an improper place and put there. And there is not a spark of evidence that they were placed there pursuant to defendants’ directions, or that any count had been taken of them, or that they had been bound in bundles of 80 as directed, or that the defendants had agreed or been informed that any special hoop poles were to be or were set apart for them. The ownership of them, therefore, remained fully in the plaintiff.

There is no other chance for this case. It is said that delivery on the wharf is delivery “ alongside” of a vessel pursuant to the terms of the letter of October 21; but it is not, for the vessel was not there to receive them, and without this there could be no delivery. It would rather seem that the letter of October 21 is necessary to the construction of that of the 25th. There the contract was to deliver alongside of a vessel, that is on a proper wharf, the purchasers to pay the expenses of delivery. In this view a delivery alongside of a vessel was necessary to a perfect sale in this case, and there could be no such delivery until there should be a vessel there to receive them, and there was no such delivery, and no pretence that they were ready for delivery to the vessel.

This action is on the common counts, and the relevant one is that for goods sold, and the views just expressed show that there is nothing in any part of the case that would justify the Court in leaving it to the jury to find a perfect sale, or the loss on resale.

Judgment affirmed.


author: Lewis, J.

text:
    Clark’s Case.
    1. In England the general rule is to allow the costs of a commission of lunacy out of the estate of the lunatic, if the lunacy be established.

    2. But if the party he found not to he a lunatic, or if the commission he superseded before any part of the property vest in the crown, no costs will he allowed to the party taking it out. This result is for want of jurisdiction.

    3. But in Pennsylvania, under the constitutional provision giving the Supreme Court and Common Pleas the power of a Court of Chancery in relation to the persons and estates of those who are non compos mentis; and under the Acts of 13th June, 1836, and of 16th April, 1849, in relation to commissions of lunacy, the Court have control over the costs of such proceeding, and may decide who shall pay them, or may apportion their payment among the parties interested.

      4. The Court of Common Pleas, where there is no certificate, as provided by the Act of 1836, that there was not probable cause for the application, may direct the payment of the costs by the lunatic before the proceeding is determined; such order, however, being but interlocutory will not prevent the Court from directing reimbursement, or making a different decree on the determination of the case.
    Certiorari to the Common Pleas, Philadelphia, in the matter of Lewis Clark.
    A commission of lunacy was sued out on 8d October, 1850, against Lewis Clark. It was alleged, on the paper-book, that, owing to the absence of two of the jurors, the jury, on the application of the petitioners, was discharged on the 28th January, 1851, and a new jury was summoned. On 22d Pebruary, 1851, an application, on behalf of'the said Lewis Clark, was made to the Court to vacate the order of 28th January. The Court refused to do so, and the ease was proceeded in before the new jury.
    On 29th May, 1851, the commissioner reported that the jury were unable to agree as to the sanity or insanity of the said Lewis Clark.
    A rule was asked (the date not stated on the paper-book) by counsel, representing, as it was stated, the commissioner and three of the jury, upon Anne G. Clark and others, on whose application the commission had issued, to show cause why the costs of the inquisition should not be paid.
    On 7th May, 1853, the Court ordered that the expenses of the proceeding be paid by the said Lewis Clark. The bill filed amounted to $860, not including the fees of the other jurors or the witnesses.
    Prom the decree Lewis Clark appealed.
    The exceptions were, 1. The Court erred in deciding that the expenses of the proceeding be paid by the said Lewis Clark. 2. In making a decree as to the costs whilst the proceeding was pending and undetermined.
    By the 1st section of the Act of 13th June, 1836, relating to lunatics and habitual drunkards, it is enacted that, “ It shall be lawful for any Court of Common Pleas of this Commonwealth, to issue a commission in the nature of a writ de lunático inquirendo, as heretofore practised and allowed, &c.
    By the 8th section of that Act, in cases where a party, alleged to be a lunatic, has no estate, or his estate is so small that the costs of the inquisition will be found an undue burden, the Court may direct an inquest to be impannelled from the jurors attending the Court, &c., to be held by one of the judges.
    Section 9. If, upon such inquisition, it shall be found that the party, with resDect to whom the application was made, is not a lunatic or habitual drunkard, and it shall appear to the judge holding such inquisition, that there was not probable cause for such application, he shall certify the same on such inquisition, and thereupon the party by whom such application was made, shall be liable for the costs of the proceeding, &c.
    Section 10. Every commissioner shall be allowed such reasonable sum for his services as the Court shall allow and direct.
    By the 2d section of the Act of 16th April, 1849, it is enacted that “it shall be the duty of the Court of Common Pleas, out of which any commission in the nature of a writ de lunático inquirendo, to inquire into the lunacy or habitual drunkenness of any person within the Commonwealth, shall hereafter issue, to decide and direct who shall pay all costs attendant upon the issuing and execution of said commission, or to apportion said costs and the payment of them among the parties interested, in such proportions as the justice of the ease may require, and to order and decree payment accordingly,” &c.

      Markland, for the appellant.
    It was said that costs were not recoverable at common law, and that the petitioners, in this case, were responsible for them. That, by the Act of 16th April, 1849, it was made the duty of the Court to decide who shall pay the costs in a proceeding in lunacy, or to apportion them among the parties interested. That this Act was not intended to give the Court an arbitrary power over the costs, but was rather intended for the protection of the lunatic. In general, costs are paid out of the estate of the lunatic, where he is found to be non compos mentis: Shelford on Lunacy 103-105; but persons vexatiously opposing the commission may be made to pay costs: Id. 105. Where the party is found to be of sound mind, the costs of the solicitor are to be paid by the person who employs him.
    But, it was said, at all events, Clark should not be adjudged to pay all the costs.
    2. It was contended that there was nothing in the'Act of 1849 which authorized the Court to decree that Clark should pay the costs before the proceeding was determined. Till then it cannot be ascertained what the costs will be, or what may be the conduct of- the parties concerned, or even who they may be. That no witnesses have presented any claims—the only claimants are officers of the Court.
    Parsons, contrà.
   The opinion of the Court was delivered by

Lewis, J.

In England the general rule has been to allow the costs of a commission of lunacy out of the estate, if the lunacy be established: 1 Collinson on Lun. 461. And, notwithstanding what is said in Ex parte Wright, 2 Fes. Sen. 25,- it is laid down by Mr. Oollinson'that even the next of kin who attend to propose committees, or to the passing of the accounts, are now allowed their costs as a matter of course. This is upon the ground that the whole proceeding is for the benefit of the non compos, and justice therefore requires that the costs should be allowed out of his estate: 1 Collin. on Lun. 308, 462; Beames on Costs 337. But if the lunacy be not established by the inquisition, or if, upon traverse, the party be found not a lunatic at the time of the commission issuing, or it be superseded before any part of the property vest in the crown, no costs will be allowed to the party taking it out, however meritorious his intention; for the reason that there is no fund in the hands of the Chancellor out of which the costs can be taken, and it was supposed that there was a want of power to compel the payment by the ordinary process of Chancery: 5 Ves. Jun. 832. That this result is not in accordance with the justice of the case, but proceeds from a mere want of jurisdiction, is apparent from what fell from Lord Chancellor Loughborough, in Feme, ex parte, 5 Ves. Jun. 833. “If I could act cum imperio,” says the Lord Chancellor, “it is a very proper case; and the parties have entitled themselves to all the costs I can give them; but I have no jurisdiction.” In Sherwood v. Sanderson, 19 Ves. Jun. 280, Lord Eldon referred to the special and limited authority of the Chancellor, who acts, in lunacy cases, not as Chancellor, but under the special ivarrant of the crown, authorizing him to take care of those who are not able to take care of themselves; and he lamented, as his predecessor had done, his inability to give costs, after the care taken and expense imposed from very proper motives for the benefit of the alleged lunatic. But in that case it happened, that the Chancellor, as Chancellor, had the control of a portion of the funds of the party, aw.aiting, as was not unusual in the time of Lord Eldon, his decision in a cause then pending. The justice of the case was so undeniable that he ordered all the costs to be paid out of that fund; and this order was made before the proceedings were brought to an end, and before it was ascertained whether the person for whose benefit ’ they were carried on was a lunatic or not: 19 Ves. Jun. 290.

But in Pennsylvania we have no occasion to lament the want of power to do justice. The Courts here have, by the constitution, the power of a Court of Chancery in cases óf that kind. By the Act of 13th June, 1836, they have the power to proceed “ as theretofore practised and allowed” in such cases, and where it is found by inquisition that the party with respect to whom the application was made is not a lunatic, and there is' a certificate from the judge holding the inquisition that “ there was not probable cause for the application,” the party who instituted the proceeding is liable for the costs. In addition to this, the Act of 16th April, 1849, gives full power over the costs in these cases. Under that Act the Court may decree either party to pay all the costs, or may “apportion them among the parties interested, in such proportions as the justice of the case may require,” and may “order and decree payment accordingly:” Brightly’s Dig. 551.

There was therefore no want of power in the Common Pleas to make the decree complained of. As there was no certificate that the application was made without probable cause, there was nothing on the record to control the discretion of the Court, and to make it obligatory to order the party applying for the commission to pay the costs. There was nothing contrary to equity in making the order for payment of the costs pending the proceedings. On the contrary, the justice of the case may frequently require such an order. This order is not a final decree. It is merely an interlocutory order providing for the present payment of expenses incurred, and does not prevent the Court from making a different disposition of the question upon the final decree. If the justice of the case requires it, the party charged with the payment of costs under an interlocutory order, may be reimbursed under the final decree.

In this case, the costs claimed amount to $860. We have no ,means of judging of the propriety of the charges. The items are not stated on the paper-book. But the practice of allowing very high costs in these cases has been condemned as one which the Court should guard against with vigilance: Highmore on Lunacy 78. If the final result proves that there was no cause for the application, it is certainly wrong to lay a heavier burthen upon the object of it than the necessity of the case requires; and if, on the other hand, the application should be well founded, it is contrary to all the feelings of benevolence which prompt the public interference, to aggravate a family already distressed by such a visitation as lunacy, by diminishing, unnecessarily, their resources of comfort: Highmore on Lunacy .78.

As the proceeding is always intended for the benefit of the alleged lunatic, the presumption, in the absence of evidence to the contrary, is, that those who commence and carry it on, are governed by that object and have probable ground for their action. If the judge should perceive that there was no probable ground, the costs, as we have seen, are placed upon the applicants for the commission. But the party who may be unnecessarily harassed, without probable cause, has a still further remedy by action. Under these circumstances, we do not see any great hardship in an interlocutory order such as was made in the present case. At all events, there is no error in it for which we can reverse it. As we take this view of the case, it is not necessary to consider the motion to quash the appeal, which was not made in time to entitle the party making it to he heard. But this decision is not to be understood as affirming the right to appeal from an order such as was made by the Common Pleas in this cause.

The decree of the Common Pleas is affirmed.


author: Woodward, J.

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    Agnew versus Johnson.
    1. Mere possession of personal property which is not used for purposes of trade, though indicative of title is not title; and the person to whom the possession is transferred must take the hazard of a demand by the proper owner.
    2. A party, under an agreement with the author, having the exclusive right to publish certain books, the copyright to which was in the author, and which books he was to have stereotyped, sold to others the one-half of his interest, the latter to pay one-half of the cost of the plates, and to publish at their own expense; with the further provision that the latter should not have the right to dispose of their interest in the looks without the consent of their vendor; and in case of the death of either of the vendees or on their dissolution, the former was to have the right to claim the plates upon giving satisfactory notes for the amount paid by the purchasers, with interest.
    It was Held, that the first owner, on tendering satisfactory notes, had the same right to recover the plates from one to whom the first purchaser had pledged them for advances as he would have had against his own vendees.
    3. The parties who paid for half of the plates under their contract, had not the right of disposing of them as against their vendor, because they had but a qualified property in them, holding them as tenants in common with him for the mere purpose of publication in subservience to the original contract with the author of the books.
    4. Having by the pledge to a stranger to the said contract incapacitated themselves from applying the plates to the purposes to which they were designed, the first seller had the right, on tendering proper notes, to recover the value of the plates in an action of trover against him who had them in pledge, whether the latter had or had not notice of the terms on which the plates were held.
    5. There being no special count or averment in the declaration as to loss sustained by the plaintiff in consequence of the interruption of his business, or for the cost and trouble of obtaining new plates, damages were not recoverable therefor; the measure of damages was the value- of the property converted, with interest from the time of the conversion.
    Error to the District Court, Philadelphia.

    This was an action of trover by Samuel Agnew v. Lawrence Johnson, for the conversion of four sets of stereotype plates of Goodrich’s Pictorial Histories of the United States, England, France, and Greece. The plea was non cul.

    The case was tried before, and was reviewed in this Court. See report in 5 Harris 373, &c.
    The case was, briefly, as follows:—
    Agnew, by an agreement with Goodrich, dated February 19, 1842, purchased the exclusive right of publishing the histories above mentioned, which Goodrich was to prepare. Agnew was to have them stereotyped, and pay to Goodrich a per centage on the sales. Agnew afterwards entered into an agreement, dated July 23, 1844, with Sorin & Ball, booksellers, by which he'sold them one-half of his interest in the stereotype plates, and in the contract for publishing the histories, subject to the performance of the engagements on the part of Agnew under his contract with Goodrich, each party to perform one-half thereof. Sorin & Ball were to pay to Agnew the one-half of the cost of the plates; to publish the histories at their own expense, and sell at their own risk; the profits to be equally divided.
    It was further agreed that Sorin & Ball should not have the right 'to dispose of their interest in the said, books, without the written consent of Agnew; and in case of the death of either of the said firm or of their dissolution, Agnew was to have the right to claim the plates upon refunding the amount paid by Sorin & Ball, with ten per cent, interest; payment to be made by satisfactory notes at sixty and ninety days, &e.
    By a further agreement between them, dated October 12, 1846, it was provided that the said plates were to be pledged to Agnew as security that Sorin & Ball would pay Goodrich; and, in case Sorin & Ball should be unable to perform their part of their engagement with Agnew, and whereby he should be entitled to purchase the plates, the price thereof was to be pledged for any arrears that may be owing by them.for the copyright money.
    Sorin & Ball paid half of the price of the plates, and published the histories.
    On the part of the plaintiff in error it was stated that Sorin & Ball failed in the fall of 1847, and soon after ceased to do- business as a firm.
    On 3d August, 1848, Agnew demanded of Sorin &. Bali the stereotype plates; at the same time exhibiting his own notes with ten per cent. interest, which were to be held by him in pledge, according to the agreement.
    This action was at length brought.
    Johnson, the defendant, claimed the plates under an alleged pledge by Sorin & Ball for money lent to them.
    On the part of the plaintiff in error it was said that there was proof that the defendant knew of Agnew’s agreement with Sorin & Ball.
    On the part of the defendant in error it was stated, inter alia, that the plates were pledged by Sorin & Ball to Johnson for moneys advanced by him to them to carry on their business, of which these histories formed a considerable part; and that these advances were made before the agreement in October, 1846, as above referred to. That a portion of the moneys advanced by Johnson, Sorin & Ball paid to Agnew.
    It was denied that Sorin testified that Agnew’s notes were satisfactory, and the contrary was intimated. It was also said that the agreement of July, 1844, did not prohibit a transfer of the plates, but of .the boohs. That a copyright existed for the books, but the plates were necessarily parted with to printers to print from.
    The Court referred to the jury the question, whether Agnew did what was necessary to retake the plates, and whether the proper time for that had arrived. That the agreement of July 23, 1844, provided for the retaking in case of the death of either member of the firm, or of their dissolution. The supplementary agreement of October 12, 1846, appeared to allow such a retaking, in case of any event happening by which said Sorin & Ball should be unable to carry out their part of their engagement.
    He charged that “ Sorin & Ball had a right to transfer to the extent of their interest, notwithstanding the prohibition in the contract with Agnew of 1844, to any person not having notice of the nature of their interest.” Whether Johnson had such notice he referred to the jury, and also the time when Johnson’s interest commenced, charging that if Johnson’s interest arose prior to the supplementary agreement of October 12, 1846, the tender by Agnew was not good. If his rights arose after that agreement, it was good.
    He further observed that if the jury found against the plaintiff on any of the said points, then, without reference to his contract with Sorin & Ball, Agnew could recover for one-half of the plates; but not for the other half, which Sorin & Ball transferred to Johnson, which half, if not redeemed under the terms of the contract, Johnson could hold as against Agnew. That for the half retained by Agnew, he could recover if Johnson held the plates under a claim for the whole. But if Johnson claimed but the half under the transfer of Sorin & Ball, Agnew’s half not being sever-able, he could not recover for it.
    He further charged that the plaintiff could not recover for interruption in his business, and the cost and trouble of obtaining new plates, in the absence of any special count or averment in the declaration; and that the measure of damages was the value of the property converted, with interest from the time of the conversion.
    Verdict was rendered for the plaintiff for $800, which, it was stated, was given as one-half of the value of the plates.
    It was assigned for error : 1. The Court' erred in allowing an investigation of the accounts between the plaintiff and Sorin & Ball. 2. In charging that Sorin & Ball had a right to transfer to Johnson. The 3d related to the charge as to the question of notice. 4. Related to the portion of the charge respecting the time when Johnson’s claim originated. The 5th and 6th related to the portion of the plates for which the plaintiff could recover, if at all, and the condition on which the right of recovery depended. The 7th referred to the charge as to the measure of damages.

      Miller and Jones, for plaintiff in error.

      Waln, for defendant in error.
   The opinion of the Court was delivered hy

Woodward, J.

All the material questions in this case were decided when it was here before. That Johnson was not a purchaser of the stereotype plates for value and without notice—that his title could not rise higher than the rights of Sorin & Ball—and that as against them the plaintiff had, under the several articles of agreement, an interest as part owner unconditionally, and the right to the remaining interest in the plates on performing the conditions specified in the agreements, were points very expressly ruled in the opinion of Mr. Justice Lewis. It would seem to follow necessarily from these principles that the plaintiff had the same right to recover the plates or their value from the defendant, Johnson, as he would have had from Sorin & Ball; yet the Court below held, that Agnew, though he had performed his conditions, could recover for only half of the plates. The error consisted in supposing that Sorin & Ball had any transferable interest in the plates. Though they had paid half their cost, and were entitled to the possession of the plates for the purpose of publishing the pictorial histories mentioned in the contracts, they had not the jus disponendi as against Agnew. And this,'not because they had pledged their moiety to Agnew as security for arrears of copyright money, but because they held them as tenants in common with him for the sole purpose of publishing works, the copyright of which was in another. The agreement of 19th February, 1842, established the relation of author and publisher between Goodrich and Agnew, and Sorin & Ball came in under the subsequent agreements to share with Agnew the benefits and advantages of the original contract, and of course all their rights were subservient to it. By that, the copyright in the books was retained by Goodrich, and the plates were prepared in view of that fact. They could be used only under the contracts. Their whole value, beyond the mere price of the metal, consisted in their connection with the copyright, and this connection was established by the contracts in evidence. Sorin & Ball had no vendible interest in the plates; their rights were limited to a use of them for the purposes set out in the contracts. When, therefore, they undertook to transfer them to Johnson, whether by way of sale or pledge, they so misused the joint property, and so incapacitated themselves for applying it to the purpose for which it was designed, and in connection with which it had acquired its value, that A.gnew might on tender of his notes recover its value. An event had then happened which rendered them “ unable to carry on their part of their engagement;” and as in case of the death of either of them or of a dissolution of their firm, Agnew had, according to the agreements, “the right to claim the plates and take the same as his own property” upon refunding their money with ten per cent, by satisfactory notes at sixty and ninety days and four months, for equal portions thereof. If the tender of the notes were proved to the satisfaction of the jury, they should have been instructed that the plaintiff was entitled to recover the full value of the plates with interest.

As to notice. If Johnson stood as a purchaser for value, instead of a mere pledgee, the general rule that a purchaser of personal property takes no better title than his vendor, would apply to him, for this property was not within any of the exceptions to that rule which were very well stated by Mr. Justice Bell in McMahon v. Sloan, 2 Jones 232.

But a party having only such a qualified property in goods as Sorin & Ball had in these stereotype plates, cannot pledge them any more than a factor can pledge the goods of his principal for his own debt, and that this may not be done is established by a train of décisions: Patterson v. Tash, 2 Strange 1178; D’Aubigny v. Duval, 5 D. & E. 604; Skinner v. Dodge, 4 Hen. & Mun. 432; Kennedy v. Strong, 14 Johnson 128; Van Amrige v. Peabody et al., 1 Mason 440; Lousatt v. Lippencot, 6 Ser. & R. 386. The pledge in such cases is wholly void, and the property is not divested from the owner, because it is made in violation of the conditions on which he has the possession, the very ground on which this transfer was void. Mere possession of personal property which is not used for purposes of trade, though indicative of title is not title, and the person to whom the possession is transferred must take the hazard of a demand by the proper owner.

It is not necessary to advert to the evidence of notice, or to pass upon its conelusiveriess, because we think the defendant acquired no rights whatever by the transfer from Sorin & Ball.

There was no error in the instruction as to the measure of damages.

These observations dispose of all the assignments of error except the first, and we find no bill of exceptions to sustain that.

The judgment is reversed and a venire de novo awarded.


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    Bennett’s Appeal.
    By the 17th section of the Act of 16th June, 1836, relating to executions, it is provided that, from the time of the service of the scire facias consequent upon a bill for discovery of the estate of a judgment debtor, the personal property of the defendant in the judgment, in the hands of another person, shall be bound (hereby, and shall be liable to be taken in execution by the plaintiff in such judgment, “ in like manner as goods or effects in the hands of the garnishee in. a foreign attachment;” and if such person shall transfer the same to any other person after such service, “ he shall be liable to pay the value thereof to the complainant out of his own proper goods and chattels.”

      Held, that the remedy thus provided is the exclusive one, and that if the goods have been fraudulently transferred they are liable to seizure by any creditor of the debtor, the complainant being included. They are not protected from seizure by the bill of discovery and proceedings thereon.
    This was an appeal by Joseph M. Bennett from the decree of the District Court, Philadelphia, overruling exceptions on his part to the report of an auditor relative to the distribution of proceeds of sheriff’s sale, on executions by Jo^n C. Hunter and others v. the firm of J. & W. L. Ward.
    W. L. Ward and J. P. Ward were in the watch and jewellery business, Chestnut street, Philadelphia. The stock of watches and jewellery were levied on under a judgment in favor of E. H. Ward et al., and a large portion of the said stock was purchased by Townsend Ward, who gave his bonds to the judgment creditors. The business was continued in the same place.
    J. M. Bennett obtained judgment against J. & W. L. Ward, in the said District Court, to September Term, 1851, for $1127.30; on which a fi.fa. was issued to the same term, No. 758, and which was returned "nulla bona.”

    On 8th November, 1851, bis bill, under the 9th and subsequent sections of the Act of 16th June, 1836, relating to executions, was filed, for a discovery of the estate of the said W. & J. P. Ward. It was directed against' them and E. H. Ward, Townsend Ward, and others; and was served on all of the parties previous to the 15th November, 1851, it being served on Townsend Ward on 13th November, 1851.
    On 11th December, 1851, the said stock in the possession of Townsend Ward was levied on under several executions against W. & J. P. Ward, the sheriff having been indemnified; and after a delay of some months, caused by the application of Townsend Ward under the Interpleader Act, which was ineffectual as he did not give security for the forthcoming of the property, the property was sold by the sheriff and produced about $10,000, a part of which, viz., above $2000, was the fund in controversy. Subsequently, Townsend Ward relinquished all claim.

      The following was the order of the executions against W. & J. P. Ward:—
    1. Execution of Grerritt & Smith, issued 12th December, 1851, left at sheriff’s office on the same day. 2. T. C. Howell and Hunter’s executions, issued December 16, and delivered to sheriff on the same day. 3. J. C. Duhadaway’s, issued and delivered on 17th December.
    Bennett’s execution, though delivered first to the sheriff, viz., on 8th November, was returned nulla bona, as beforé stated.
    On the bill of Bennett a scire facias was issued on 8th November, 1851, returnable on the first Monday of December. On 9th December, 1851, a rule on defendants was taken to answer. Answers were filed, and various other proceedings took place; but on 29th May, 1852, a rule to vacate the appointment of the master and examiner in the proceeding, was made absolute, and no further proceedings in the matter took place.
    An auditor was appointed to report distribution of the fund in dispute. Before him counsel of J. M. Bennett contended that Bennett, by his bill and subsequent proceedings under the Act of 1836, had acquired a right in or lien upon the property, out of which the fund, for distribution arose; that this right was divested by the sheriff’s sale, and that therefore he was entitled to payment in the first place out of the fund for distribution.
    The auditor decided against such claim, and reported in favor of the executions in their order.
    Exceptions on the part of Bennett, to the report as disallowing his claim, were filed; but they were overruled by the Court, and the report was confirmed.
    Prom such decree Bennett appealed, and the exceptions were to the award in favor of the execution creditors and not to him.
    In section 9 of the Act of 16th June, 1836, relating to executions, it is provided that “It shall be lawful for the plaintiff in any judgment for the recovery of'money obtained in any Court of this Commonwealth, to have a bill for the discovery of the real and personal estate of the defendant in such judgment.” By the 10th section the bill may be filed against the defendant in the judgment, and against any person having possession of such real or personal estate, or who may owe, or be accountable for or may have knowledge of the same; the bill to be filed in the Court in which the judgment is, or in the county in which the person, of whom the discovery is sought, resides. In the- 14th section it is provided that, upon the filing of such bill, it shall be lawful for the Court, or any judge thereof in vacation, to award a scire facias.

    Section 17. Prom the time of the service of any such scire facias “ upon any person, other than the defendant in the judgment, the personal property of the defendant in the hands of such person
      shall be bound thereby, and shall he liable to be taken m execution at the instance of the plaintiff in such judgment, in like manner as goods or effects in the hands of the garnishee in a foreign attachment ; and if such person shall transfer such personal property to any other person, after such service, he shall be liable to pay the value thereof to the complainant, out of his own proper goods and chattels.”

      Dropsie, for appellant.
    It was contended that Bennett, by his proceeding under the Act of 1836, was entitled to preference in the distribution of the fund in dispute. Reference was made to 23 Pick. 488; 16 Mass. 317-318; 16 Pick. 553-5; 17 Id. 289; 4 Johns. Ch. 682; Id. 687.

      Hirst and A. Thompson, contrà.
    It was contended, 1. That Bennett had no standing in Court. He did not prove before the auditor the facts he alleged in support of his claim; and he did not show a final disposition of his proceeding. The answers to his bill denied any fraudulent complicity between Townsend and W. & J. P. Ward, and it lay upon Bennett to establish it.
    2. The bill gave him no right to payment out of the fund. In foreign attachment actual execution is necessary before the fruits of the judgment can be realized against the garnishee: 17th sec. of Act of 13th June, 1836; 7 W. & Ser. 219. A seizure of the goods was necessary to continue the lien: 5 Wh. 125; 9 Barr 351; 1 Watts 300. If the property be within the power and control of the sheriff, possession should be taken within a reasonable time: 3 Rawle 401. The statute of 1836 was passed not only to protect purchasers, but to settle the claims of execution creditors. If a levy be made merely to secure a debt, and not to obtain satisfaction of it, it is void against third persons: 3 Rawle 334.
   The opinion of the Court was delivered by

Lewis, J.

It is true that the 17th section of the Act of 16th June, 1836, declares that “from the time of the service of the scire facias” the personal property of the defendant, in the hands of such person, “ shall be bound thereby.” But the subsequent clause explains the sense in which the Legislature used the word “ bound.” After the provision that the goods shall be liable to be taken in execution, “ in like manner as goods or effects in the hands of the garnishee in a foreign attachment,” it is added, “ and if such person shall transfer such property to any other person after such service he shall be liable to pay the value to the complainant, out of his own proper goods and chattels.” The intention seems to be that if the goods remain "in the hands” of the respondent in the bill at the time the plaintiff takes out execution, they shall he liable to be taken in execution in like manner as goods “in the hands of the garnishee in foreign attachment.” But if the respondent in the bill shall “ transfer the goods to a third person after the service of the scirefacias," he shall be “liable to pay the value thereof to the complainant out of his own proper goods and chattels.” As this is the remedy expressly provided by the statute in case of a transfer after service of the scire facias, the rule of construction requires that the remedy thus provided be pursued, and excludes a resort to any other, founded upon the bill.' If the goods have been fraudulently transferred by the debtor they are open to seizure at the suit of any creditor who thinks proper to incur the risk, and to assume the task of establishing the fraud. The plaintiff in the bill has an equal right with the other creditors to enter the lists. If he chooses to resort to his execution he may do so. The course is open to all, and the most vigilant is, in general, the most successful. But if the property is protected from seizure during the delay which may arise before the bill can be brought to a hearing and final decision, the Act of Assembly may produce the very evils which it was designed to remedy. A lien upon personal property,'without seizure, to continue for an indefinite period, or to abide the uncertain event of a lawsuit, would be productive of so much embarrassment in the transaction of business, and is so entirely at variance with our legislative policy, that we cannot suppose the Act of 1886 was intended to create it. The Act admits of a construction less inconvenient in its results, and more in accordance with the established policy of the state; and that construction is adopted.

Decree affirmed.


text:
    Hogg’s Appeal.
    1. On the 7th June, 1841, the Bank of the United States made a second assignment of assets exceeding twelve millions of dollars to pay depositors, and holders of notes of the former and of the bank then existing, “ being notes of the ordinary kind, payable on demand and commonly used in circulation;” and also “to sundry persons holders of notes of the said bank, commonly called post-notes (other than post-notes held by or issued to certain banks in the city and county of Philadelphia, for which security was provided and given by an indenture bearing date the first day of May in the present year, and which are not intended to be provided for and embraced in the present indenture).” And further providing that the bank had “resolved and agreed to provide an adequate security for the payment of the said deposits, and of the said notes, and of the said post notes” (except as aforesaid), “ and of the interest to accrue upon them,” &c.
    It was Held, that the post-motes, meant in the said assignment, and designed to be secured by it, were such notes payable at a future day as were designed as a part of the circulating medium,; and that the assignment did not include notes or obligations of the bank under seal, payable at a future day in London, each being for one thousand pounds sterling, with interest, which were issued for a loan of money to the said bank, and which were not designed to be a part of the circulation of the hank.

    2. If the terms “post-notes, as commonly called,” were so new that the Courts were not presumed to understand their meaning, or to be able to learn it from books, it was proper for the auditors, before whom the question arose, to resort to the testimony of witnesses to ascertain their meaning.
    3. In the proviso to the 6th section of the Act of 5th May, 1841, providing for an assignment by the Bank of the United States, it is enacted that the trustees shall receive, in payment of debts, at par the notes or other evidences of debt issued or created by said bank. Field, that by the terms at par was meant the amount due upon post-notes including interest; and that on a settlement with the trustees for the principal of the notes, the interest upon them might be reserved by the owner and submitted as a claim at a future time.
    Appeal from a decree of the Common Pleas, Philadelphia, made on 10th December, 1853, on the third account of John Bacon and others, assignees and trustees, under an assignment by the President, Directors, and Company of the Bank of the United States, dated 7th June, 1841.
    The appellants, Sir James Hogg and others, were holders of post-notes of the Bank United States, dated the 14th day of October, 1839, and the 15th day of April, 1841, issued under a loan made by Messrs. Denison & Co., of London, amounting to £317,000 sterling.
    The Bank of the United States was incorporated by Act of the legislature of Pennsylvania, of 18th February, 1836. It after-wards became embarrassed, and on the 11th May, 1837, it suspended specie payments, and, after intermediate resumptions and suspensions, it finally suspended on the 4th February, 1841.
    On the 4th and 5th May, 1841, two Acts of the legislature of Pennsylvania were passed, authorizing the bank to make a general assignment of its assets for the benefit of its creditors. On the 1st May, 1841, an assignment was made to James Dundas and others of assets amounting to about $7,772,250.33, to secure the payment to the city banks of $5,078,444.94. On the 7th June, 1841, a second assignment was made. of assets, amounting to $12,475,300.60, to John Bacon and others. The material question involved in this appeal arose under the terms of this assignment. In the preamble to the assignment, it was stated as follows:—
    “ Whereas the said party of the first part are indebted to sundry persons, depositors in the said bank and the branches or offices thereof; and also to sundry persons, holders of notes of the late Bank of the United States, incorporated by Congress; and to sundry persons, holders of notes of the present bank, being notes of the ordinary kind, payable on demand, and commonly used in circulation; and also to sundry persons holders of notes of the said bank commonly called post-notes (other than post-notes held by, or issued to, certain banks in the city and county of Philadelphia, for which security was provided and given by an indenture, bearing date the first day-pf May, in the present year, and which are not intended to be provided for and embraced in the present indenture): And whereas the said party of the first part has resolved and agreed to provide an adequate security for the payment of the said deposits, and of the said notes, and of the said post-notes (save and except the said post-notes heretofore provided for as above said), and of the interest to accrue upon them,” &c.
    The assignment was made to pay the deposits, notes, and post-notes, according to the said preamble.
    By a statement called the “ State of the Bank,” dated the 7th of June, 1841, it appeared that the post-notes of the bank outstanding at that time amounted to $485,368.34. Post-notes, payable to John Ross or bearer, on account of the Cherokee Tribe, being what was commonly, called the Moss Issue, constituted a part of the post-notes of the bank, and have been recognised as such by the different trustees and auditors and in the final adjudication of all the Courts in the accounts already filed.
    On the 4th and 6th of September, 1841, the bank made a 3d assignment of assets, amounting to $15,929,038.15, to the said James Robertson and others,-’ in trust for their creditors without preference. This assignment included all the remaining assets, excepting stocks amounting to $15,581,000.13, hypothecated in Europe for more than their value; and sundry shares in Pennsylvania improvement companies, set forth in the schedule annexed to the said assignment, which were subsequently, under legal process, gold for the sum of $1185.
    On. the 22d March, 1852, the bank executed to Molton C. Rogers and others, a general assignment in pursuance of the directions of the Acts of the 4th and 5th May, 1841. The trustees therein named, by way of distinction, have been called statutable trustees.
    On the 23d day of August, 1839, the bank executed to Samuel Jaudon, a power' of attorney to borrow money in Great Britain or on the Continent of Europe or elsewhere. And for that purpose, to execute all papers and documents, and deliver all securities or evidences of debt, which the said attorney might, think fit.
    In pursuance of this authority Jaudon contracted various loans in Europe.
    1. On the 26th day of December, 1839, at Paris, he borrowed of DeRothschild Fréres ¿S'st’g 900,000. To secure this loan in pursuance of the written agreement between the parties, the bank deposited certain securities, and issued certain instruments called in French “obligation,” translated into English, “debenture.”

      2. On the 14th day of January and 4th day of July, 1840, at Amsterdam, Jaudon borrowed of Messrs. Hope & Co. two sums of 5,500,000 and 4,500,000, in all 10,000,000 guilders, equal at 42 cents per guilder to $4,200,000; to secure the payment of this loan, Jaudon entered into two written agreements with Messrs. Hope & Co., and deposited certain stocks therein enumerated.
    These agreements were executed according to the laws of Holland, and remain deposited with the notary public at Amsterdam as thereby required.
    8. On the 1st day of April, 1887, the bank-borrowed of Messrs. E. Huth & Co., of London, £ st’g 200,000, and to secure the payment issued bonds under the seal of the said bank, with coupons called “warrants,” annexed, payable in the city of London.
    4. On the 12th day of October, 1839, the bank, by Jaudon, and Denison & Co., of London, entered into an- agreement by which the bank deposited stocks amounting to $4,450,000, to secure the payment of the notes of the said bank, amounting to £ st’g 800,000, with interest, dated at London, the 14th of October, 1839; one-half payable at London, on the 15th day of April, 1841, and the other half on the 15th day of April, 1842.
    Six hundred and fifty notes, to wit, £ st’g 800,000, were accordingly issued in the city of London, and circulated in that city under the denomination of post-notes or post-bills, in contradistinction to those issued under the Rothschilds loan, which "were called debentures.
    On the part of the appellants it was stated that these notes were also called post-notes and post-bills in the gazettes and price currents and the newspapers of the United States, at and about the time they were issued, and prior to the 7th of June, 1841. These were in the following form:—
    Bank of United States.
    Loan of £800,000.
    £1000.
    The President, Directors, and Company of the Bank of the United States, promise to pay the bearer, on the 15th day of April, 1842, at the banking-house of Messrs. Denison & Co., in London, one thousand pounds sterling} with interest thereon from the 15th day of October, 1839, at the rate of six per centum per .annum, payable semi-annually, on the delivery of the annexed coupons.
    This note forms a part of a loan, &c.
    For the President, Directors, and Company of the Bank of the United States.
    Signed S. Jaudon, Attorney.
    London, this 15th day of October, 1839.

      On the 15th April, 1841, when the first class of notes, amounting to £ st’g 400,000, were about to become due, Jaudon and Denison & Co. entered into a new agreement. The bank deposited the additional security of $225,000 of Pennsylvania 5 per cent, stocks; the notes when becoming due were cancelled, and new notes at time were issued payable on the 15th day of April, 1842. Coupons for the payment of the interest, payable before maturity, were attached to all the notes.
    On the 26th day of April, 1853, John Bacon and Thomas Robins filed their third account, containing the sum of $324,747.07, to be distributed amongst the creditors. This account was referred to auditors to report distribution.
    On the part of the appellants, were presented to the auditors, post-notes issued under the Denison loan, amounting to £ st’s 317,000, with a statement of the amounts received from the collateral stocks pledged, principal and interest, leaving a balance due of $631,400.05, with interest .thereon from the time that Denison & Co., by virtue of the authority vested in them, had sold the collaterals hypothecated as before stated.
    The Marine Insurance Company of Philadelphia presented a claim of $9557.16, and John Pickens presented a claim of $1890.76. These claims were both for interest on notes and post-notes of the bank sold by them, and by the purchasers paid to the bank in satisfaction of debts due to the bank at the time of the assignment under the provisions of sections 20 and 6 of the Acts of 4th and 5th May, 1841.
    Washington Jackson also presented a claim for the sum of $43,555.23, with interest from the 29th of June, 1838, alleged to' be due to him as the plaintiff in a writ of foreign attachment against Warwick and Claggett, in which the bank were made garnishees.
    James Robertson and others, trustees under the assignment of the 4th and 6th of September, 1841, claimed the balance of the fund after paying the dividends to certain undisputed creditors enumerated in schedules attached to'the said report.
    In the report of the auditors it was stated that notes, such as those issued under the Denison.loan, were not “ commonly called post-notes in Philadelphia and in the United States, at the date of the assignment/’ 'They rejected the claim of the holders of such notes; also the claim of Washington-Jackson; and reported that after the dividends of undisputed creditors were deducted, the following be paid, viz.: 1. The sum of $9557.16 to the Marine Insurance Company of Philadelphia; 2. The sum of $1890.76 to John Pickens; 3. The balance of $249,285.72 to James Robertson and others, trustees as aforesaid..
    Exceptions to the report were filed on the part of the holders of the notes under the Denison loan, and on the part of Washington Jackson; but, on the 10th December, 1853, the Court overruled the exceptions and confirmed the report.
    By an agreement of parties, and by "order of Court, a large sum was paid over to the trustees under the assignment; leaving $71,447.92 subject to decision upon the appeals.
    An appeal was entered for holders of the Denison notes, for whom the whole fund was claimed; and another appeal was entered for Washington Jackson.
    In the case of Hogg’s Appeal exceptions were filed,. 1. To the decree in favor of the Marine Insurance Company. 2. To the decree'in favor of Pickens. 3. To the decree of $60,000 to Robertson and others, as trustees. 4. To the decision that the notes issued under the Denison loan -were not entitled to a dividend.
    In the proviso to the 6th section of the Act of 5th May, 1841, it is enacted, That the said trustees (under the assignment authorized to be made by the Bank of the United States), shall receive in payment of debts due to the said bank or to them, at par, the notes or other evidence of debt issued or. created by said bank.

      Bayard and Randall, for holders under the Denison loan.
    Post-notes are notes payable after date: 3 Com. Rep. 19; 2 Ser. & R. 463, Dyott’s Estate; 2 Bouvier’s Dic. 340; 2 W. & Ser. 443; 3 Kent 74. Also, opinion in Bank United States v. Peabody, 8 Harris 457, in reference to the notes to Denison & Co. It was said that the exclusion of the post-notes in the assignment was an argument in favor of these notes being included in it: Dwarris on Statutes 22-659; 2 And. 192; 19 Vin. 531.
    As to the term, “ commonly called post-notes,” used in the assignment, it was said that attention should not be confined to the understanding had of them in Philadelphia prior to 7th June, 1841, to which the - evidence heard by the auditors had been limited.; nor even to their meaning in' Pennsylvania,-though one of the witnesses stated that the common acceptation of post-notes in Philadelphia, was that of “ notes issued by a bank'payable after date.” . It was'said that the notes known as “The Ross Issue,” were payable to John Ross or bearer, and were sent to John Ross in the Cherokee country, and never circulated in Philadelphia, .yet they have been termed arid recognised under the trusts as post-notes: 6 Wharton 586. They have been recognised as such under the second and third trusts. The Bank of the United States had an agency.in London; and May Humphreys, a witness, says that the instruments issued under the Denison loans were called “ post-notes and post-Bills.” That they were so called in the newspapers in England.

    Further; the Denison notes are not to be excluded because held by foreigners. Foreign depositors are secured by the assignment as well as depositors residing in the United States.
    In Bicknell’s Reporter of 5th November, 1839, this issue was called “post-notes.”

      C. Ingersoll was on the part of the Marine Insurance Company.
    The appellees held post-notes of the Bank United States, the principal of which they sold to persons who bought them to apply them to the payment of debts due to the bank.
    It was further stated that when the notes, under which the claim was made for the Marine Insurance Company were withdrawn from the trustees’ possession, the person who acted for the persons interested in them signed a receipt for them, in the receipt book of the trustees, by the terms of which, the notes being about to be used in the extinguishment of debts, the claim upon the notes to the first dividend of the trust, and to a dividend under the September trusts, was released; but at the foot of the receipt' was a notification made at the instance of the agent that he retained the claim for interest.

      G. M. Wharton and Porter, for the trustees.
   The opinion of the Court was delivered by

Lowrie, J.

This is one of a class of claims called the Denison loan to the Bank of, the United States, and the principal question here is, whether they are entitled to share in the funds assigned by the bank to John Bacon and others, on the 7th June, 1841, for the benefit of a portion of its creditors'. The beneficiaries under this assignment are described as depositors, holders of notes of the ordinary kind payable on demand, and holders of notes commonly called post-notes. The appellants claim to be holders of post-notes within the meaning of this provision.

It is very important to notice that this assignment is a unilateral declaration of will or purpose, just as much so as a statute or last will; and for this reason our aim in interpreting it, must be to ascertain the intention of the assignors alone. The rule therefore, that a deed is to be interpreted most strongly against the grantor, cannot aid us, for this applies only to contracts. Besides, when this rule was transferred from the Roman law to ours (Pig. 50, 17, 172,) the reason of it was left behind, and this has seriously affected its value. That reason interpreted obscurities and ambiguities against the party who defined or wrote down the terms, because the fault was his: Dig. 2 14, 39; Dig. 18, 1, 21 and 33,; Dig. 45, 1, 99, pr.; Dig. 45, 1, 38, 18. In stipulationibus, verba contra stipulatorem, interpretanda sunt. (In the Roman law the stipulator proposed the terms, and they were simply accepted by the promisor.) This assignment, being unilateral, does not come within the rule or its reason, and if there be any obscurity here, it has in no way affected the previous position or rights of these claimants. It is a law imposed upon property by those who had the sole power to direct .its disposition, and we must read it as the expression of their intention. It is therefore necessary to inquire into the circumstances of the bank and its relations to the different classes of its creditors at the time the assignment was made.

Its embarrassments began to be seriously felt in the fall of 1836, as we discover from the fact that then it began to issue post-notes, and it continued to do so until June, 1840; and when this assignment was made there were of them outstanding over $485,000. The greater part of these were under seal and bearing interest, and they were all called post-notes at the bank and in the community.

In April, 1837, the bank borrowed of Huth & Co., London, say $960,000, and gave their bonds with interest coupons or warrants. These bonds differ from the Dennison issue only by the presence of the seal and the absence of security, and yet it seems that, in the English stock market, they were quoted as post-notes.

On the 11th May, 1837, the bank suspended payments, and when, in 1839, they were endeavoring to resume, they borrowed large sums in Europe. On the 12th October, 1839, they borrowed, through Denison & Co., say $3,840,000, and gave securities estimated at $4,675,000; and on the 26th, December, 1839, they borrowed from Rothschilds, say $4,320,000 (I count the pound sterling at $4.80), and gave securities estimated at $5,000,906. For the Denison issue they gave obligations called “notes” with coupons for interest, and containing the pledge of the securities. The principal contracts are essentially promissory notes. The assurances given to the Rothschilds were of precisely the same character, but they were expressed in French and called “ obligations,” and translated into English “ debentures.” We see no direct evidence that these were called post-notes even abroad.'

The bank’s difficulties continuing, they borrowed, in January and July, 1840, from Hope & Co., of Amsterdam, $4,200,000, giving obligations and securities. At another attempt to resume, in January, 1841, they made an arrangement to meet the balances due to the Philadelphia banks, in pursuance of which post-notes were issued to those banks amounting to $5,000,000. The resumption thus brought about was not permanent, and the final suspension took place 4th February, 1841; and on 1st May, the bank assigned, a portion of its effects to secure the post-notes which had thus been issued to the other banks.

If now we regard the Denison issue as post-notés within the meaning of the assignment, there is no apparent reason for excluding those of Huth & Co., and Rothschilds; and yet no claim is presented on their account.

We are at no loss for the reason or motive that led to this assignment, for it is clearly expressed—because the bank had resolved and agreed to provide an adequate security” for the creditors described. Now it is not at all plain, that this purpose is effected if the European loans to the amount of $9,000,000 are to come in for a share. Besides this, it is rather improbable that they, who had already received securities to an amount which, less than two months before, and perhaps even then, were deemed adequate, should be connected in the same provision with those who had no security, and this too without any provisions being made for the difference of relation in which they stood, or at all noticing that difference.

The exception of the banks from the benefit of the assignment, because they had securities already, is some evidence that it was not intended to include the Denison issue. Their claims would not be due for nearly a year and it is not at all probable that the bank were thinking of those who had no present power to annoy or urge them. But the deposits, ordinary circulation, and admitted post-notes, were all due and might be pressed immediately, except a few post-notes having a few days to run. Certainly all these facts leave a very strong impression that the bank was not thinking of the Denison claims, did not distinguish them from those of Huth & Co., and of Rothschilds, and did not regard them as post-notes.

The appellants’ position is thought to be strengthened by the fact of the exception of the post-notes held by the Philadelphia banks, on the maxim, exoeptio unius est inclusio alterius. But there was security already for these claims as well as for those of the banks, and therefore the appellants fall within the reason of the exception and not of the provision. Without this; if the appellants do not belong to the classes positively included, they cannot be placed there by an exception of some of those who do belong to them.

Are the obligations, constituting the Denison issue, properly called post-notes? Similar obligations of the-North American Trust and Banking Co., seem to have been so called: 3 Denio 70; 3 Barbour 226; 3 Comstock 21; but this may be a misapplication of the name. The word indicates a note payable at a future day; but this will not Answer for a definition, for it is not usual so to designate the notes of individuals. The best way of defining them is to ascertain their history, and this is very well illustrated in the evidence.'

They are a species of obligation resorted to by banks when the enchanges of the country, and especially of the banks, have become embarrassed by excessive speculations. Much concern is then felt for the country, and through the newspapers it is urged that post-notes be issued by the banks “ for aiding domestic and foreign exchanges,” as a “mode of relief,” or a “ remedy for the distress,” and “ to take the place of the southern and foreign exchanges.” And so presently it is' done.

Post-notes are therefore intended to enter into the circulation of the country as part of its medium of exchanges; the smaller ones for ordinary business, and the larger ones for heavier operations. They are intended to supply the place of demand notes, -which the banks cannot afford to issue or re-issue, to relieve the necessities of commerce or of the banks,, or to avoid a compulsory suspension. They are under seal, or without seal, and at long or short dates, at more or less interest or without interest, as the necessities of the bank may require. Like the Housatonic Railroad Company’s notes, or those of the Manual Labor Bank, they may even be marked on the face “ secured by pledge of stock and property,” or “ secured in trust on real estate,” or, like those of the New York banks, the notes may be in fact so secured; still, as they are intended and issued not merely as evidence of a loan, and to be thrown into the stock market, but as a part of the circulating medium, they are called post-notes. The obligations called the Denison issue are not of this character, and cannot properly be called post-notes.

But the bank has not left its intention open to the interpretation of a general description, for it limits its provision to those obligations “ commonly called post-notes.” It distinguishes between ordinary notes and post-notes, but does not stop there, lest the word post-notes should be taken as a description and not as a name. It is not all notes payable on time that are provided for, but those commonly called post-notes. This excludes the genus if the species above be thus commonly named. Now if the article or its name be so new that the judges are not .presumed to know it definitely by its name, or to be able to learn it, as they do their law, from their books, then its definition becomes a matter of fact to be decided on the testimony of witnesses. It was so tried by the auditors, and we are satisfied that they arrived at the proper conclusion.

The objections to the decree, so far as it relates to the claims of Pickens, and of the Marine Insurance Company, are also unfounded. Thé Act of Assembly requiring the notes of the bank to be taken at par, did not intend to alter the contract. Par means the amount really due including interest. And the claimants have a right to sell their claim to the principal of the notes and retain their claim for interest, and this is what was done.

Appeal dismissed at appellants’ cost.

Black, C. J., dissented.