8 Watts 385 | Pa. | 1839
The opinion of the Court was delivered by
No error has been shown in the record of this case, excepting in the matter embraced by the fourth error assigned, which raises the question, was any evidence given on the trial of the cause, which made it proper in the court to leave it to the jury as a question of fact to be decided by them, whether Reuben Holgate, the plaintiff below, was not the only person interested in and entitled to receive the moneys, when made, which were directed to be levied under the execution sued out upon the judgment in favour of James and Reuben Holgate, for the use of John Bowman, against Peter Shaffer, and put into the hands of James Seagreaves, as constable at the time, to be executed? Seagreaves, in receiving the note in writing from Switland, containing the promise for a breach of which this suit was brought, must be regarded as standing in the place of an agent for the person or persons who were entitled at the time to receive the money, when collected, upon the execution. It is clear from the evidence of Seagreaves, too, that he considered himself as acting in that character, in every thing that he did in regard to it. He took no responsibility upon himself in granting the stay of any further proceeding on the execution, as was requested by the plaintiff in error in his note, but presented it immediately to Reuben Holgate, whom, it would seem, he looked upon as the party entitled to receive the money, in order to have •his advice and direction whether the request should be acceded to or not; and that upon receiving the assent of Holgate to let the execution rest, as requested by the plaintiff in error, he immediately communicated to the latter that his proposal, in this respect, was agreed to. The plaintiff in error, then, not having revoked his . proposal, nor expressed any thing but a willingness still to abide by it, when it was made known to him by the constable, that it was agreed to and accepted of by the plaintiffs in the execution, became absolutely bound for the payment of the amount of money directed to be levied under it, provided a cessation to proceed further therein, until the close of the following week, took place, and should be duly observed by the plaintiffs in the execution. Then, from1 the evidence given on the trial, let us see who are the persons
Judgment reversed, and a venire de novo awarded.