Forsyth v. Matthews

• Decision Date: 01 January 1852
• Parties: Forsyth versus Matthews.
• Court: Pennsylvania Supreme Court

Page 100

14 Pa. 100

Forsyth versus Matthews.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

The case was argued by McCandless, for plaintiff in error.

Geyer was for defendant, but the court declined to hear him.

The opinion of the court was delivered by BELL, J.

In this case the writ of error brings up a formal bill of exceptions, duly sealed by the judge before whom the cause was tried. Were it not that the carelessness of practice in many of our judicial districts, and the loose manner in which records in error are made up, has almost banished the formal bill of exceptions, it would be scarcely necessary to remark, that in reviewing the action of the subordinate tribunal, a court of error is strictly to confine its attention to what is presented by the bill, and its proper appendages. It may contain a recital, in extenso, of the evidence given on the trial, or, as in this instance, it may consist of a condensed statement of such of the facts proved, or which the testimony tended to prove, as is necessary to the proper comprehension of the points ruled by the court, and the instructions given to the jury.

The bill before us, after stating the sale of the goods in question, by Edwin C. Matthews to the plaintiff below, and the consideration of the contract, avers that the evidence tended to show the possession of the goods sold had been delivered to the purchaser, at the date of the agreement of sale; after which the latter conducted the eating-house, in which they were found, in his own name. On the other hand, the defendant below gave evidence tending to show there had been no open and manifest change of possession, in pursuance of the sale. Here, then, was a conflict of testimony, which must necessarily be referred to the jury. This the court did, with the instruction that an assignment of personal property, without an actual transfer of the possession, gave no title to the assignee, as against the creditors of the assignor; and if there was no such transfer of possession, the plaintiff could not recover. This was certainly correct. Had there been no proof of a transfer of possession, correspondent with the sale, it would have been incumbent on the court to direct the jury, as matter of law, that as against creditors the sale was naught, and therefore the plaintiff could not recover: 2 Watts & Serg. 147. But under the contrariety of proof which appears to...