1822. The errors assigned in the record, which were argued by Pittsburg Coulter, for the plaintiffs in error, and by Craft and Forward, for the defendant in error, are stated in the opinion of the COOK and another Court, delivered by v. GILBERT. TILGHMAN, C. J.-Four errors have been assigned in this record: 1. "That an attorney, or agent, has no authority to enter an amicable action, under the Act of the 21st of March, 1806." That is a question which it is unnecessary to consider. Independently of that Act, an amicable action may be entered by attorney. It has been a long and general practice. 2. "That the cause of action is not stated in this agreement." The cause of action is sufficiently stated in the account at the head of the agreement. It was an account for goods sold, &c. against Cook & Isott. This account, the defendants undertook to pay. They assumed the debt, and agreed to give judgment against themselves for it. 3. There is no confession of judgment in writing by the defendants below, expressing the amount due to the plaintiff." This exception must have been taken with a view to the Act of 1806, on which the case does not depend. The agreement was a sufficient authority to the Prothonotary to enter an appearance of the defendants in proper person, and a confession of judgment by them for the sum mentioned in the agreement. 4. "The judgment is entered by the Prothonotary, by virtue of a warrant to him directed, when, in fact, there is no warrant to him or any other person. A warrant of attorney must be under seal." It is a mistake, to call this a warrant of attorney. It is no such thing. It is an order to the Prothonotary to enter a judgment according to a very common practice in this State. The Prothonotary does not call it a warrant of attorney, but a warrant, that is, an authority to him, as Prothonotary. But if he had called it by a wrong name, that would not have invalidated the judgment, provided there was authority for entering it. These agreements to enter amicable actions and confess judgments, need not be under seal. I have seen a great many of them, and do not recollect one under seal. I make no doubt, that thousands of judgments have been entered in this way; and they must not now be questioned. It is the opinion of the Court, that there is no error in 1822. this record; and therefore the judgment should be affirmed. Pittsburg. If a man article of ance of a The cause was argued in this Court by Stannard, for the the conveyplaintiff in error, and Foster, for the defendant in error; after piece of land, which, TILGHMAN C. J. delivered the opinion of the Court. and in the terest of A. the article is land first men Hence, in an ney, after the This is an action of debt, brought by Samuel Moorhead, Coed, all the plaintiff below, on a single bill given by Andrew Brown, clain, and in the defendant below (and plaintiff in error.) to Abraham B. in another Sharra, and assigned by Sharra to the plaintiff. As the piece of land, plaintiff took this bill, subject, under our Act of Assembly, not extinguished by a to every matter of defence, legal or equitable, which the de- deed conveyfendant might have set up against the assignor, the defen- ing only the dant, on the trial in the Court below, went into the conside- tioned. ration of the bill, and proved, by parol evidence, that it was action for the given as part of the consideration of a tract of land which he purchase mohad purchased of Sharra. The deed of conveyance of this deed has been read to the ju. land, from Sharra to the defendant, was given in evidence, ry, the defendated the 1st day of March, 1816; after which, the defen- dant may give dant offered to give in evidence certain articles of agreement the article of between him and Sharra, dated the 20th of February, 1816, hew that it by which articles, Sharra agreed, in consideration of the sum has not been fully complied of three thousand dollars to be paid by the defendant in the with. manner therein specified, to convey to him the land before mentioned, and also to convey, or cause to be conveyed, to the defendant, "all the right, title, claim, and interest, that Josiah Moorhead and Abraham Cahill have to a certain lot VOL. VIII.-4 C in evidence agreement, to 1822. of land whereon said Cahill now lives, containing about thirPittsburg. ty acres." To this evidence the plaintiff objected; and the Court having rejected it, the defendant excepted to their opinion. BROWN V. MOORHEAD. The three thousand dollars to be paid by the defendant, were the consideration, not only of the tract of land to be conveyed to him by Sharra, but also of the conveyance to be made to him of Cahill and Moorhead's right to the thirty acre lot. The defendant had a right to shew, what was the agreement between him and Sharra, and that the consideration had failed, in whole, or in part. But this he could not do, otherwise than by the articles of agreement. It was argued by the plaintiff's counsel, that when the defendant accepted a deed from Sharra, the articles of agreement were virtually extinguished. But this cannot be, because the deed from Sharra, was but a fulfilment in part of what he had covenanted to do by the articles. The other part, viz. the conveyance of Cahill and Moorhead's right to the thirty acre lot, remained to be done. Until this was done, neither Abraham Sharra, nor his assignee, could recover from the defendant the whole sum of three thousand dollars; nor, unless the agreement was laid before the Court and jury, would it be pos sible to decide, what would be the equity of the case between the parties to the present suit. I am of opinion, therefore, that the articles of agreement ought to have been admitted in evidence. There was another exception taken by the defendant to the opinion of the Court, in admitting Abraham Sharra as a witness; a release having been first executed to him by the plaintiff. The decision of the Court on this point was clearly right. The objection to the competency of the witness, was his supposed interest, in consequence of being liable to the plaintiff, on his assignment of the single bill, in case the plaintiff should not recover in this suit. But this interest, (if indeed he was liable) was removed by the release, and consequently, he was competent. There were, besides, several objections to the charge of the Court, upon which it is impossible for us to form an opinion, because of the imperfect state of the evidence, which is not upon the record, and to which the President alluded in his charge. Under these circumstances, the Court cannot 1822. say that there is error in the charge; but inasmuch as there is error, in not permitting the articles of agreement to be Pittsburg. read in evidence, the judgment must be reversed, and a ve- BROWN nire facias de novo awarded. : Judgment reversed, and a venire facias V. MOORHEAD. FINDLAY against BEAR IN ERROR. ON a writ of error to Somerset county, this appeared to be an action of slander brought by the defendant in error against the plaintiff in error, in which the declaration set' forth, that the defendant uttered and published, of and concerning the plaintiff, the following words: “ Daniel Bear pilfered a dog, and peddled the dog through the county, and then sold him to John Levingood for five dollars." The jury found a verdict in favour of the plaintiff for thirty-seven dollars; and a motion in arrest of judgment having been overruled by the Court, the defendant took out this writ of error. Forward, for the plaintiff in error. Foster, contra. The opinion of the Court was delivered by TILGHMAN C. J.-This is an action of slander, and the only question is, whether the words laid in the declaration are actionable. The words were, "that the plaintiff stole a dog." The objection is, that a dog is not a subject of felony, and therefore it was impossible the plaintiff should steal one. It is conceded by the counsel for the plaintiff, that, by the common law, a dog is not that kind of property of which there can be a felony. It is so laid down by Hale and Haw Monday, To say of a man, that he stole a dog, is not actionable, FINDLAY υ. BEAR. 1822. kins, who have been followed by all subsequent writers on Pittsburg. criminal law. But it is contended, that a dog is included in the general words, "goods and chattels" made use of in “the Act to reform the Penal Laws of this State," passed the 5th of April, 1790, 2 Sm. L. 531. By the fourth section of this Law, it is enacted, that "if any person shall feloniously steal, take, and carry away any goods or chattels under the value of twenty shillings, and be thereof legally convicted, he shall be deemed guilty of petty larceny," &c. But there is no reason for supposing, that it was intended, by this Act, to extend the crime of larceny beyond its ancient limits. That would be a singular construction of a law, the object of which was, to mitigate the penal code. By the words any goods or chattels, we are to understand any such goods or chattels as have been esteemed subjects of larceny. This will be clear enough, when we consider, that in another section of the same Act, it is provided, that robbery or larceny of any bonds, bills, &c. shall be punished in the same manner as robbery or larceny of any goods or chattels. Bonds, bills, &c. are goods or chattels; and yet it was thought necessary to declare them subjects of felony, by a special provision; which shows, that the words goods or chattels, before mentioned, were to be taken, not in their most extensive signification, but according to their usual import in the criminal law. Constructive felonies are odious and dangerous. It is time enough for the Court to say that a thing is a felony, when the Legislature has plainly declared it. The owners of dogs are not without remedy, against those who take them away. They may recover ample damages in a civil action. It is the opinion of the Court, therefore, that there can be no felony of a dog. Consequently, the words laid in the declaration in this case, are not actionable; and the judgment must be reversed. Judgment reversed. |