Roberts v. Austin

5 Whart. 313, 1840 Pa. LEXIS 210

• Court: Supreme Court of Pennsylvania
• Decided: February 15, 1840
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

It is a well established rule of-law, that when an agent names his principal, the principal is responsible, not the agent. But the agent must name his principal as the person to be responsible. It is alleged that the affidavit of defence is defective in this particular, that the defendant omits to aver, that the goods were sold on the credit of the principal alone. The affidavit must receive a reasonable construction, and the words used must be understood in their ordinary sense. Giving its language its usual import, the defendant substantially avers, that the principal alone was held responsible; that the bilf'-of exchange was intended by both the contracting parties in the nature of an order on the principal for the money, without any idea that in any event the drawer was to be liable on the bill. The defendant says, that the name of his principal was disclosed by him to the plaintiff,, at and before the time of the purchase. “ The merchandise was furnished to his principal upon the credit and for the use of his principal.” As there can be no doubt the defendant meant to assert that the goods were furnished for the use of the principal alone, it is equally clear that we must understand hi.m to say, that they were furnished on his credit alone. It is the obvious and natural import of the language of the affidavit. They constitute one sentence, and the same construction must be applied to each. If this was the contract, the face of the instrument cannot alter the case, as is held in Emmet v. Sharp.

* As between the immediate parties, the drawer may be discharged by proof aliunde, from the liability arising on the face of the bill itself.

A refusal to discharge a defendant from arrest, is a matter purely of legal discretion, the propriety of which cannot be reviewed in this Court.

There are many summary proceedings in which a writ of error is not maintainable, as in case of a judge or Court discharging a defendant on common bail; moderating bail on capias; receiving the justification of bail; or in the case of a privileged person held to bail on an arrest. 2 Yeates, 162. 3 Serg. & Rawle, 410. 5 Binn. 24.

Judgment reversed and a procedendo awarded.

Ante, page 288.