1804. tain negative words; it says the governor may, but it does not Common- say the legislature may not remit.] wealth V. The law however as it derogates from the common law must be construed strictly; the letter of it must be adhered to; and if DAVIES. there are some kinds of recognisances which are forfeited in, and others which are forfeited out of court, the former alone are subject to the provisions of the law. Of this distinction there cannot be a question. Of the latter kind is the recogni&c. sance in the present case; of the former are those to appear which are forfeited in court, not in consequence of doing an act out of court, but for not doing an act in court, which is the place of performance and also of forfeiture. But it is said these are not a sufficient object for the legislature. This in the first place is not the fact, for they exceed tenfold all other recognisances; in the next place the section which has been read adds to the Supreme Court any court of Oyer and Terminer, General Gaol Delivery, Admiralty Sessions, and special commissioners of Oyer and Terminer, where none but recognisances to appear and prosecute can be forfeited, or even be adjudged to be forfeited, from a want of civil jurisdiction; so that the forfeitures in these courts must be of that kind for which it is argued the law was not made. The plain ground of the section is to give a power of relief upon equitable grounds. As to the case of Davies, however, there is another objection to the interference of the court; it has been removed to the Court of Errors, where the judgment has been affirmed; so that to touch it is to affect a judgment of that court. (a) This objection is fatal; and even in North's case there was a judgment at the last term, which is no longer in the power of the court. At the conclusion of the argument the COURT said that they clearly could not interfere with the case of Davies, which had been removed to a higher court; but they would hold the other case under consideration until the following morning; when the petition in both cases was dismissed. SHIPPEN C. J. There is abundantly more reason for a power in the court to moderate or remit a forfeiture of this kind than (a) When a judgment of this court is affirmed in the high court of errors, the record is remitted to this court for execution, as was done in this case on the 10th September 1804 before the argument. 1804. Commonwealth • Vne in those cases which come expressly within the law; for, as it was argued upon the trial, if a publication in the newspaper may be a breach, and upon such a breach the whole recognisance is forfeited, every justice of the peace may indirectly put a restraint upon the press. I certainly told the jury that we had DAVIES. an act of Assembly by which we might prevent the injury; and I was probably misled by recollecting that in declaring upon such a recognisance I always stated that it was filed of record in the court, and so are the forms. But I am now persuaded from an examination of the act that I was mistaken, and that the relief is confined to forfeitures in court. It is to be regretted that it is too late to afford the parties a new trial. The relief at present lies only with the executive. The opinion of the court is that the petitions must be dismissed. SMITH J. I do not go merely by recollection in stating that I did say upon the trial I had doubts as to its not being a restraint upon the press; and then the Chief Justice said we had power by the act to prevent injury. It was clearly a mistake, for the act does not extend to such a forfeiture. THIS ca the peace cannot enter HIS was a certiorari to the Common Pleas of Philadelphia A justice of county. The cause originated before a justice of the peace, who gave judgment for Dawson the plaintiff below, upon a judgment warrant of attorney, without issuing either summons or pias. This judgment was affirmed in the Common Pleas, upon the removal to this court the proceeding without mons or capias was assigned for error. upon a warrant of attor and ney. He must sum M. Levy for the plaintiff in error, cited the act of April 19th, 1794, which follows the act of March 1st, 1745. sec. 1. empowering justices "upon complaint made to them for a debt or de"mand to issue a warrant in the nature of a summons or ca proceed by warrant in the nature of a summons or capias. 1804. "pias as the case may require;" but it gives them no authority ALBERTY to take jurisdiction in any other way. (a) Ross contra, said that the section did not contain negative words, and that if the justice had jurisdiction of the amount, a warrant of attorney from the party waived the benefit of the ordinary proceeding. Though consent cannot give jurisdiction it may waive process. SHIPPEN C. J. A limited authority, such as is given to justices of the peace, must be strictly pursued. They cannot interfere officially in a civil controversy without pursuing the steps pointed out by the act. SMITH J. It has always been held that if the proceeding was neither by summons nor capias, it was irregular. Per CURIAM. Judgment reversed. (a) Vide Act April 9th, 1807. sec. 8. 8 St. Laws 180. Wednesday, September 12th If an agent indebted to his principal ships pro vessel be. THIS SUMMERIL against ELDER. HIS was an action of replevin for two hogsheads of coffee, in which the defendant claimed property. It was tried at perty to him Nisi Prius in February 1804, before SHIPPEN C. J. and on board a SMITH J. when a verdict was found for the defendant, subject longing to a to the opinion of the court upon a case which was in substance third person, this: Dawson and Watt, merchants at Cape Francois, were the (although boundto con- common agent of plaintiff and defendant, and were indebted to form to the both at the time hereafter mentioned, for the proceeds of sunagent's or. ders) and dry cargoes consigned to them. B. F. Garrigues the owner of the captain the brig Julia addressed her in the latter part of 1801 to D. & W. signs a bill of lading de- with a direction to the captain to conform in all respects to their the princiorders. On the 23d Jan. 1802, D. & W. wrote to the defendant pal, the pro- as follows: "This goes by way of Baltimore and is merely to perty there"inform you that we shall ship for your account on board the the princi- "brig Julia, Samuel Holt master, sailing for your port on or pal, and the "about the 1st next month the quantity of 7000 lbs. coffee liverable to upon vests in agent cannot counter mand or disturb the shipment. V. "or thereabouts.* By her we shall write you more fully, and 1804. "remain your assured friends D. and W.* It being your pro- SUMMERIL "portion of the balance of the brig Agnes' cargo. D. and W." On the 31st January 1802, the captain having taken on board ELDER. his cargo for Philadelphia, signed bills of lading for eight hogsheads and nine barrels of coffee marked T E, deliverable to the defendant or his assigns, one of which bills D. and W. left with the captain together with letters for the consignees. The brig was detained until the 4th of February when Cape Francois was burned by the blacks, and property to a great amount in the stores of D. and W. destroyed. On the 10th February D. and W. prevailed upon the captain to deliver up the bills of lading and letters; and with a view to equalize the loss among their different employers, took two hogsheads from the quantity shipped for the defendant, and addressed them to the plaintiff, presenting at the same time bills for the signature of the captain, varied accordingly from the former bills. The captain at first refused to sign, as an alteration had been made in the quantity shipped to his owner, but was compelled to it by the assurance of D. and W. that until it was done the brig should not sail. From the 31st January to the 10th February the vessel remained in the harbour under her first bills of lading, her bulk never broken, nor the marks of the hogsheads or barrels in any way altered. On the 4th of March after an embargo the brig sailed, and on her arrival, the captain being informed by the defendant that according to a letter from D. and W. the quantity due by the bill of lading last signed fell short of the amount shipped, by two hogsheads, put the property in question on shore, when the defendant got possession. The plaintiff entered and secured the duties upon them, and then brought the present action. Upon these facts M. Levy for the plaintiff argued that the common factor of both parties had a right to alter the destination in this case; that the captain was the agent of Dawson and Watt since he was tied down in all respects to their orders; and that the delivery of the property and bill of lading to him was revocable act, since it might be considered as a delivery to themselves; and that the most to which the letter and first bill of lading amounted, was a promise of a bill of lading, which however it might affect the contracting parties, passed no pro 1804. SUMMERIL V. ELDER. perty. The interference by the agents was to equalize a severe loss among many, before the means of so doing had gone out of their hands. Rawle for the defendant answered that the coffee was shipped from the funds of Elder in the hands of Dawson and Watt; that the property vested by the delivery to the captain, that it was at the defendant's risk from the 31st January to the 10th February, and that the interference of Dawson and Watt was to make Elder contribute to Summeril's loss, which they had no right to do. A bill of lading clearly vests the property in him in whose favour it is made and for whose use it is delivered, Evans v. Marlett, (a) and the captain became the agent of Elder as to this property the moment the bill was delivered. How then could the general agents of Elder devest the property? They could do it only in the character of agents, or under the common power of stopping in transitu. As agents their authority was supplanted by that of another agent upon the delivery of the bill of lading. As to stopping in transitu this case never occurs but as between vendor and vendee, and as between them the vendor can stop in transitu only when the vendee has become bankrupt, or when no consideration has passed from the vendee to him. Snee v. Prescott, (b) Wright et al. v. Campbell, (c) Lickbarrow v. Mason, (d) Ellis and others v. Hunt, (e) Kinloch v. Craig, (f) Sweet v. Pym, (g) Alderson v. Temple. (h) Levy in reply said that none of the cases cited came up to this, which was a delivery to the factor's own ship; and that although a bill of lading did usually vest the property, yet for the sake of doing complete justice it was construed otherwise in the case of stopping in transitu. Justice here very clearly supported the plaintiff's claim. SHIPPEN C. J. Even granting that the parties in this case have equal equity, still he that has the law must prevail. Now there can be nothing more clear than that upon the delivery of the bill of lading to the captain upon the 31st of January, the (a) 1 L. Ray. 271. (c) 4 Burr. 2046. (d) 2 D. & E. 63. (g) 1 East 4. |