OF CASES ADJUDGED IN THE SUPREME COURT OF PENNSYLVANIA. BY THOMAS SERGEANT & WILLIAM RAWLE, JUN. 83051 VOL. III. SECOND EDITION, REVISED AND CORRECTED. PHILADELPHIA: KAY & BROTHER, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 1871. リ Entered according to Act of Congress, in the year 1841, by ROBERT H. SMALL, in the Office of the Clerk of the District Court for the Eastern District of Pennsylvania. (Appointed Yeates, Esq) N.B. T of the Court after Judge argued by h JUDGES OF THE SUPREME COURT OF PENNSYLVANIA. WILLIAM TILGHMAN, Esq. Chief Justice. JOHN B. GIBSON, Esq. *THOMAS DUNCAN, Esq. Justice (Appointed March 14th, 1817, to fill the vacancy occasioned by the death of Jasper Yeates, Esq.) ATTORNEY GENERAL. AMOS ELLMAKER, Esq. N. B. The cases being reported in the term at which the opinion of the Court was given, many were decided by the other two Judges, after Judge DUNCAN came on the bench, which had been previously argued by him as counsel. (Harris v. Smith.) does not perform the condition, the property is not ultimately changed by such delivery. Or, if it was the understanding of the parties, that the delivery of the goods and of the note, are to be cotemporaneous, and each to depend upon the validity of the other, the delivery of the one does not vest a right, if the delivery of the other does not take place. Again, it is a principle of law that fraud vitiates every thing; and if there was fraud used in getting the possession, it does not change the rights of the parties. As if the purchaser in a case like the present, practises a trick: if he plans to get possession, and yet not give the note, it does not change the rights of the parties." To this charge the defendant tendered an exception. The jury found a verdict for the plaintiff. Phillips and S. Levy, for the plaintiff in error, cited 4 Dall. 95. Livermore on Agents, 94. 1 Dall. 62. 2 Johns. 16. 2 Black. Com. 481, 2, 3. 4 Black. Com. 230. Chauncey, contra. *GIBSON, J. The plaintiff in error objects to the proceed[*23]ings below, that Silas E. Weir, who was admitted to be sworn as a witness, was interested and incompetent; and that there is error in the charge of the Court. It is certain that Weir, with whom the goods had been deposited as an auctioneer, was liable to Hinkle, and it is probable the money recovered in this suit, will be paid directly into his hands: so far his credibility is directly affected. But has he a vested legal interest in what may be recovered? I think not. Weir, an auctioneer, having sold the goods for which this suit is brought, to the defendant below, commits them to the custody of the plaintiff, his servant, with instructions to deliver them to the defendant on his performing certain conditions. The defendant, by artifice, and without having complied with the conditions, prevails with the plaintiff to part with the possession. The result is, that the plaintiff and defendant are both liable to Weir-the plaintiff for a breach of his instructions, and the defendant in an action of trover or replevin, founded on Weir's right of property. He can sue either or both; but he is legally unconcerned in any suit between the present parties. A case has been read to show that an action to recover the price of goods sold at auction, can be sustained in the name of the auctioneer only; and hence it is inferred, the witness has a legal interest in what may be recovered in this suit, and is to be considered as the real party. This case, even if it were law (which I very much doubt) is inapplicable; for the action, here, is not brought for the price of the goods, but in express disaffirmance of the sale. As to the charge, the error alleged is, that the facts proved were insufficient to show such a special property in the plaintiff as to enable him to sustain an action; that at most he had a mere charge of the property that could give no right; and that even if he had been a bailee, his property, as such, was divested by the delivery to the defendant. On the evidence, I admit it is questionable whether the plaintiff had a sufficient right of property. But the error, if any, lay with the jury. They were instructed that a mere servant, who, as such, has only the charge or custody of goods, has not a special property in them, but that the property remains in the master, and the action for their reco (Harris v. Smith.) very must be brought in his name; and that unless the goods in question had been delivered by Weir to the plaintiff as a [ 24 ] bailee, and under a particular responsibility, this action could not be sustained. This was a direction as favourable to the defendant as the law would warrant. The judge left the application of the rule to the jury, whose business it was to apply it to the facts. As to the delivery to the defendant, it is very clear the property was not changed by it. If a vender rely on the promise of the vendee to perform the conditions of the sale, and deliver the goods absolutely, the right of property will be changed, although the conditions be never performed. But where performance and delivery are understood by the parties to be simultaneous, possession obtained by artifice and deceit will not avail: the fraud will vitiate the whole transaction. To this effect the jury were instructed; I am of opinion, therefore, there is no error in the record, and the judgment must be affirmed. NOTE. This cause was argued before YEATES and GIBSON, Justices, in the absence of the CHIEF JUSTICE, who was prevented from attending Court by domestic affliction. It was held under advisement, and during the ensuing vacation, Judge YEATES died; but the opinion of the Court having been formed on consultation immediately after the term, was now delivered by Judge GIBSON. *PETERS and another against the PHENIX INSURANCE [ *25 ] COMPANY. The law implies no warranty of sea-worthiness, except at the commencement of the voyage. Therefore, when a vessel which has received damage, from a peril insured against, puts into port to repair, the captain, or agent, who superintends the repairs, is only bound to use due diligence. It is not necessary, that the vessel should at all events be so repaired, as to render her sea-worthy. Where a vessel in the course of the voyage, has suffered damage to the amount of 50 per cent., the assured is entitled to recover for a total loss, notwithstanding she has performed her voyage, and been moored 24 hours in safety in the port of destination. The Court will not grant a new trial on a point of law not made at the trial; unless the party moving for a new trial, would be without remedy if the verdict should stand. ACTION on a policy of insurance on the brig Madeira, at and from Philadelphia to Charleston, and at and from thence to Madeira. The brig arrived in safety at Charleston, and after remaining there some time, sailed on the 16th October, 1812, for Madeira. In going over the bar of Charleston she struck several times very hard, and on proceeding to sea, was soon found to be in a leaky condition. The leak increasing, it was determined, on the 24th October, to make the first safe harbour. Accordingly the course was altered to the westward, and on the 31st October, the brig arrived at Norfolk in Virginia. Here she was repaired, and having sailed again for Madeira, left the bay of Chesapeake on the 25th November. It was shortly afterwards. discovered, that the repairs at Norfolk were insufficient. On searching for the leak, a knot hole was found, which had been enlarged by the VOL. III.-3 |