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1813.

BOYLES

V.

JOHNSTON'S
Executors.

name of Stephen Porter was also endorsed under the name of Pomeroy. The Court rejected them all, and sealed a bill of exceptions.

Kelly and Reed for the plaintiff in error, relied on Hubly's Lessee v. Chew (a), and Sproul v. Plumsted's Lessee (b).

Forward, contra.

TILGHMAN C. J. after stating the facts, proceeded as follows:

If this land was actually surveyed for Pomeroy, and improperly returned by the deputy surveyor on Porter's warrant, and if Pomeroy had taken possession, insisted on his title, and never relinquished it, then there would have been an outstanding title which would have barred the plaintiff's recovery, even though the title of the defendant had not been connected with that of Pomeroy. Whether it was so connected, does not appear by the bill of exceptions, and therefore we cannot suppose that it was. If as the defendants' counsel now say, the connection was proved, it ought to have been inserted in the bill. The papers rejected by the Court seem to have been material for the establishment of Pomeroy's title. Such papers have been received in similar cases. The field notes of the deputy surveyor were admitted in Hubly's Lessee v. Chew, 2 Sm. Laws 257; and it is evident that the old draught endorsed John Pomeroy, must have been very material to shew that the survey was originally made for Pomeroy. Such a draught was given in evidence without dispute, in the case of Ross's Lessee v. Patterson, tried before the late Chief Justice Shippen and Judge Brackenridge at a Circuit Court for Lycoming county, in which I was of counsel for Patterson. In that case the name of Patterson had been endorsed, then obliterated, and the name of another person inserted in the place of it. The warrant calling for the land of Pomeroy, also tended to shew that a survey had been made for him. By rejecting these papers, the Court took upon themselves to decide matters which ought to have been submitted to the jury. Whether the location was the property of Pomeroy, and supposing it

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to be his property, whether he had acted so negligently as to forfeit the imperfect title which he had acquired, were matters which depended on a variety of circumstances, concerning which the Court might have given their opinion to the jury after the evidence was closed. But it appears to me, that agreeably to former decisions, the evidence ought to have been received. I am therefore of opinion that the judgment should be reversed, and a new trial ordered.

YEATES J. absent in consequence of sickness.

BRACKENRIDGE J. was of the same opinion with the Chief Justice.

Judgment reversed.

1813.

BOYLES

v.

JOHNSTON'S

Executors.

END OF SEPTEMBER TERM, WESTERN DISTRICT, 1813.

CASES

IN THE

SUPREME COURT

OF

1813.

Chambersburg,
Monday,

September 27.

Although the

landlord and tenant law says

PENNSYLVANIA.

Southern District, September Term, 1813.

CLARKE against PATTERSON.

IN ERROR.

ERROR to the Common Pleas of Bedford county, to re

move the record of the proceedings of two justices,

the judgment of in a landlord and tenant cause.

the justices shall be final and conclusive, a writ of error lies.

Riddle for the defendant in error, moved to quash the writ, upon the ground that the act of 21st March 1772, declares that the judgment of the justices shall be final and conclusive. 1 Smith's Laws 374.

Duncan contra, said there had been many cases in which the judgment of the justices had been reversed for error; and cited Boggs v. Black (a).

Per Curiam. There are too many precedents of such judgments removed from the Common Pleas by writ of error, to permit the practice to be questioned. The motion must be denied.

(a) 1 Binn. 335.

Motion denied.

CASES IN THE SUPREME COURT, &c.

SANDERSON Executor of SANDERSON against

THE

LAMBERTON.

IN ERROR.

1813.

129

Chambersburg,
Monday,
September 27.
A agreed with
B a common car-
rier, for the car-

HIS was an action against Sanderson the testator, on the custom as a common carrier, for not delivering to Lamberton a barrel of castor hats, which in consideration of riage of certain goods. B without two dollars, he had agreed to carry from Philadelphia to the direction of Carlisle. The suit was instituted in the Common Pleas of A, agreed with Cumberland, and during its pendency Sanderson died, and for the carriage of the same goods; his executor was made a party by scire facias. In this and C without Court it was argued upon the following special verdict, direction of on which the Court below gave judgment for the plaintiff. agreed with Ďa

C ́another carrier

the knowledge or A,

third carrier. D lost them. Held

issue that A might plain- against D, and that by bringing

maintain suit

April his action he

affirmed the con

could not after

"The jurors empannelled and sworn to try the "joined in this cause, respectively do find, that the "tiff James Lamberton, on the twenty-eighth day of “Anno Domini one thousand seven hundred and ninety-six, tract made with "being in the city of Philadelphia, bargained and contracted him by C, and "with a certain John Semple, then and there being a com- that recover from mon carrier, to carry for hire, a barrel containing twelve B or C, "castor hats, the property of the said James Lamberton, "which said barrel with its contents, the said John Semple "agreed to deliver in a reasonable time, to the said James "Lamberton, at his store in Carlisle, which said barrel of "hats, were at the time of the above contract, deposited "with Benjamin Scull of the said city. The jurors afore"said do further find, that the said John Semple after

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wards, without the direction of the said James Lamberton, "did engage and contract with a certain John Chambers, "then and there being also a common carrier for hire, that "he the said John Chambers, would deliver the said barrel of "hats to the said James Lamberton, at his store in Carlisle, "in a reasonable time. And the jurors aforesaid respec❝tively do further find, that in pursuance of the agreement "so made, between the said John Semple and the said "John Chambers, he the said John Chambers received the "said barrel of hats from the said Benjamin Scull, and that "the said John Chambers then and there, without the knowVOL. VI.

R

SANDERSON

1813. "ledge or direction of the said James Lamberton, did agree "with Robert Sanderson, the defendant's testator, (the V. "said Robert then and there being a common carrier for LAMBERTON, "hire) that the said Robert should carry the said barrel of "hats, and in a reasonable time deliver the same to the "said James Lamberton, at his store in Carlisle. And the "said John Chambers, did then and there undertake that "the said James Lamberton would pay him the said Ro"bert, for the carriage of the said hats, the sum of two "dollars, upon the delivery of the said barrel of hats at "the store of the said James Lamberton, in the borough of "Carlisle. In pursuance of which said agreement, the said "Robert then and there received from the said John "Chambers, the said barrel of hats. And the jurors afore"said do further find, that the said barrel of hats was not "delivered to the said James Lamberton, at his store "in Carlisle, in a reasonable time by the said Robert, but "that the same was entirely lost by the negligence of the

same Robert Sanderson. But whether the plaintiff is en"titled to recover &c., the jurors are ignorant, and pray "the opinion of the Court. And if the Court shall be of 66 opinion in favour of the plaintiff, then the jury find for the "plaintiff the sum of one hundred and twenty-eight dollars "and twenty-nine cents damages, and six cents costs. But "if the Court shall be of opinion in favour of the defen"dant, then the jurors find for the defendant."

Metzger argued for the plaintiff in error, that here there was an express contract made between Chambers and Sanderson, which negatived any implied contract between the latter and Lamberton; and that as Sanderson could not have recovered his compensation from Lamberton, neither could the latter recover the value of his goods from Sanderson. The action against the carrier must be in the name of the consignor who agreed with him, and was to pay him; and in this case Chambers was the consignor, acting for himself, and not for Lamberton, because Lamberton gave no authority to Semple to make a contract for him, nor did Semple give any to Chambers. The contract by Lamberton was specially made with a carrier of his own choice. He neither named Sanderson as the carrier, nor was Sanderson em

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