10 Pa. 56 | Pa. | 1848
Books produced at a trial in obedience to an order of the court, are in its custody; and it may allow such access to them, or make such other disposition of them as, in the exercise of a sound discretion, it may deem necessary to fairness and justice. Its orders in respect to them are, consequently, not subject to a writ of error. How could the errors assigned in this part of the case be corrected by it ? The mischief being done, would be irreparable. The information supposed to be improper, has been gained; the accounts of the intestate, in regard to other transactions, have been exposed; and what has been done could not be undone by sending the cause to another jury. We are required to reverse the judgment, in order not to correct an incorrigible error, but to inflict a penalty on the gratification of an impertinent curiosity. That is not a legitimate motive for the interference of a court of error. But there was no room even for the infliction of a penalty. If the inspection went no further than the accounts pertinent to the cause, there was no harm done. Even if it went beyond them, there still was no harm done; for the intestate’s business was ended by his death, and all his transactions must necessarily be revealed in the settlement of his estate. The defendants, therefore, could gain no advantage, as dealers in the trade, from a knowledge of the intestate’s former transactions in it; and, even if an injury should
Nor was there error in permitting the boohs to go to the jury, without notice having been given of the parts intended to be used. They would have been competent on non assumpserwnt without the plea of payment, which was entirely unnecessary. The accounts went to show, that the transaction was not a sale of goods, and therefore to subvert the cause of action; but, at all events, they went to show that the contract had been mutually executed, and they were consequently evidence of direct payment or satisfaction in goods, which needs no notice of special matter. As to the admission of a particular item to prove a partnership between the plaintiff and his brother, it is sufficient to say, the exception is not founded in fact.
The fourth and fifth assignments of error, are unfounded both in law and in fact. The judge did not charge, that the transaction was an exchange of goods. He left the evidence of the fact to the jury, with instruction that if the ribbons were to be paid for in goods, the value of the goods could not be recovered back as money had and received, and the principle is indisputable. The case which comes nearest to the present, is Curcier v. Pennock, 14 S. & R. 51, in which the defendant gave the plaintiff a parcel of foreign and uncurrent coin for merchandise, who, discovering it to be spurious, brought an action for goods sold and delivered, which was held not to lie, because, among other reasons, the transaction was said to be not a sale, but an exchange.’ Now, the bargain here was to' give English goods for ribbons, the prices being used respectively as measures of value, to arrive at the balance, which was alone paid in cash; and the property was changed by the execution of it, if it was not void for unfair dealing or something else. The case, therefore, is not within the principle of Longchamps v. Kenney, in which the plaintiff’s masquerade ticket was presumed to have been sold by the defendant, with whom it had been deposited, and who would give no account of it. The bailee had only a special property in it. Even in that case of clear deposit, it was held that there must have been a refusal to account, and there was no evidence of it here. There is, however, no presumptive sale by a vendor of goods to found this action. On the contrary, in every case of which such a sale, was an ingredient, the goods had been bailed to the defendant to be sold on the plaintiff’s account. Doebler v. Fisher, in which a horse had been given for
As to the rest of the case, the judge charged pretty much as the law is laid down in La Rue v. Gilkyson, 4 Barr, 375, in which it was said, that an insane man, like an infant, is liable on his executed contract for necessaries; and in which it was intimated, that he would be liable for merchandise innocently furnished to his
Judgment affirmed.