USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III > Part 31
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5,380 00
6,776 00
vines. Lock No. 14; near the end, sandy loam on the 1st part, stoney towards the end,
9,771 60 11,324 40
7,681 60
9,198 40
44th Mile. Passes for nine hundred yards at the base of the up slope requiring slope wall in part, then flats-embankment & culvert on Kobses' kill. Gravelly 9,127 20
9,890 40
7,720 60
9,085 40
45th Mile. Runs on the line of lowest ground west of Hageman's and near the foot of the up-slope -extreme depth of cutting 9 feet above water. Soil, clay and gravel -
7,915 00
9,454 00
46th Mile. Ordinary cutting and favourable ground through- out; soil, part sandy, part clay and gravel -
3,676 40 4,546 80
47th Mile. Ground rather roll- ing on the first half mile. Locks No. 15 and 16, near J. Auter's. Remainder very favourable; soil, clay and gravel on the first part, sandy loam on the last
13,982 80 16,178 80
48th Mile. Very favourable flats; soil, light sandy loam
4,004 00
4,567 50
49th Mile. Closes upon steep second bank and runs sideling on the chief part of the distance -four hundred yards requiring slope wall. Lock No. 17 at the beginning. Soil, inclining to gravelly, easy digging
13,205 20 14,664 40
50th Mile. Favourable flats to 1100 yards, then a steep gravel- ly bluff to the end. Lock No. |18, at the beginning of the ter- race -
15,290 00 17,325 80
51st Mile. Two hundred yds. as the preceding, then slight ex- tra cutting and favourable flats to the end, except seventy yds. which run upon cave bank
9,197 80 10,379 40
52d Mile. Passes along the face of the ledge at long rift, with terrace and slope wall to the end - 18,840 00 20,838 00
17,665 40
18,706 60
53d Mile. Slight terrace at the beginning, then flats half a mile, then face of second bank to the end -- cuts in slightly' near the end; soil, gravelly, stoney near the end
54th Mile. Has choice of le- vels and easy digging to two hundred and twenty yards from the end, where the limestone ledges of Foul rift commences, and run to 12 feet above water at the end. Channel to be cut without slopes
55th Milc. Limestone ledge to four hundred yards; extreme depth 12 feet above water, occa- sional ledges on the four hun- dred following. Line then de- scends by Locks No. 19 and 20, and runs on flat with easy dig- ging to the end. Lock No. 21 in the flat .
6,489 20- 7,721 20
15,909 60 18,951 60
7,714 00
8,924 00
8,209 20
9,156 40
1
13,607 20-
-3,400 60
4,012 40
6,844 20 7,717 90
25,969 80 30,073 40
4,702 00 5,494 80
23,120 00 27,970 00
56th Mile. Through flats, very favourable. Lock No. 22 at five hundred yards. Soil sandy loam, 8,158 80 . 9,338 20 57th Mile. Passes face of an iron bank three hundred yards,
8,957 20
9,919 40
1829.]
CANAL DOCUMENTS.
107
Small C'anal.
Large Canal.
Canal.
Large Canal.
requiring terrace, then two hun- dred yards in flat, then eight hundred yards-steep slope re- quiring terrace, of which 450 rocky-the remainder flats
14,556 40 16,069 20
58th Mile. Very favourable ground to four hundred and forty yards from the end, then com- mences a gravelly bluff, requir- ing terrace, &c. Lock No. 23 at commencement of slope wall; soil clay and gravel
13,409 00 15,205 40
59th Mile. Bluff continues six hundred and sixty yards, the line then cuts in and runs on favourable flats to the end. Gravelly and sandy loam,
11,458 40 12,644 00
19,502 60 22,245 20
65th mile. Tow path and slope wall; shore generally favourable 7,587 60
7,587 60
66th mile. Tow path and slope wall, generally favourable; cros- ses Bushkill
8,388 00
8,388 00
Fractional remainder from the end of the 66th mile to the mouth of the Lehigh, 126 rods, passing under Delaware bridge, 330 yards opposite the town of Eas- ton, done with piers and bridges 7,806 30
19,051 60 22,062 00
61st mile. Through flats with favourable levels, and easy soil. Culvert and embankments at Sandt's
4,471 20
5,477 80
Engineering, superintendence and contingencies,
60,000 00
60,000 00
Total cost for 66 6-10 miles, $776,798 80 885,502 10
Cost per mile,
$11,678 64 $13,319 62
Estimate round the bend at Walpack, beginning at the north end of the tunnel, and ending with the 28th mile of the located line. Rocky bluff's 880 yards, then slight embankment, and flats generally to the end; gravelly and sandy loam. Distance 4340 yards. Estimate, viz.
Small Canal.
Large Canal.
Excavation,
70,100 yds. at 8 cents, 5,608
960
9,400 108,320
20
21,664
Terrace along the mountain,
91,100
20
18,220
3,057
Slope wall, square yards,
10,190
30
3,057
637 50
Puddle, cubic yards,
1,700
25
425
2,550
600
Two Culverts,
900
Four Bridges, ,.
540
Fence and slight grubbing,
Total distance round 4340 yds; Cost for small Canal,
30,210
Cost for large C. 36,345 70 do
Comparison S do by the tunnel 2026
do
do
24,244 50
do 27,509
Difference in favor of the latter, 2313 yards
5,965 50
8,836 70
Estimate for a separate Canal from the Wygaat to Easton.
64th Mile runs on favourable ground with ordinary cutting, 1140 yards to Lock No. 26, thence turns round the point of the Wygaat with terrace and slope wall. Estimate, viz:
Excavation in earth,
21,560 yards at 8 cents, 1,724 80
Terrace round the mountain,
46,600
20
9,320
54,700 20
10,940
Slope wall,
6,600
30
1,980
300
Culvert,
5 76
5,184
Lock No. 26,
9 ft
4 96
4,464
600
Bridges,
3
600
240
Fence 2-3 400 yards slight grubbing,
18,628 80
21,333 60
65th MILE, near the river bank but without exposure, except 500; mixture of rock on this part, otherwise san dy loam. Estimate, viz :
66,080 yds at 8 cts. 5,286 40
51,080 yards at 8 cents, 4,086 40
15
2,362 50
18,750
12
2,312 50
Slope wall,
5,280
30
1,584
550
Culverts,
550
ment of the steep below which terrace and slope wall are par- tially required. Sandy loam and gravel 63d mile. Steep bank conti- nues, with points of rock, to four hundred and forty yards from the end, requiring terrace, &c. remainder favourable levels and easy soil
13,617 60 15,595 20
11,466 00 13,138 00
64th mile. Passes on favoura- ble ground to lock No. 26, then descends by three locks into the head of the Delaware basin, at the point of the Wygaat moun- tain-remainder of the mile, six hundred yards, to be terraced with tow path only .
60th mile. Flat continues fa- vourable one hundred and twen- ty yds. then rock cutting round face of steep slope three hun- dred and thirty yards, and part rock one hundred and fifty fur- ther to Martin's creek. Mode- rate embankment between Mar- tin's creek and Howel's tail race, after which flats to No. 24-side- ling below the lock, and small portion of rock near the end
7,806 30
716,798 80 825,502 10
62d mile. Favourable on the "first half mile, passing back of Sandt's, line then crosses to the upland with points of rock .- Lock No. 25 at the commence-
97,740 yds. at 8 cts. 7,819 20
12
1,128
Embankment,
8,000
12
-
600
900
540
26,120 yds at 8 cts. 2,089 60
1,980
300
Fxcavation,
Terrace,
15,750
1,584
240
Small
108
LAW CASE.
[FEBRUARY
Small Canal.
Large Canal.
Bridges.
400
400
Fence ¿ and 500 yards light grubbing,
320
320 ,
9,802 90
10,452 90
66th MILE runs on a flat three hundred and eighty yards, then locks down and keeps the steep slope to the cros- sing of the Bushkill. and ends one hundred and ten yards further south, Stoney along the slope with points of
rock. Estimate, viz:
14800 yards at 8 cents 1184
18800 yards at 8 cents 1504
Embankment and terrace
53040
12
6364 80
67860
12 8143 20
Slope wall
13800
30 4140
4140
Aqueduct across Bushkill
5 bays
4750
4740
Lock No. 27
9 ft 496
4464
576
5184
Bridge
200
200
Fence } and 1100 yards light grubbing
500
590
21602 80
24417 20
Fraction of a mile, one hundred and twenty six rods from the end of the 66th to the Lehigh, requires strong em. bankment in front of the town and under Delaware bridge. Lock No. 28 graduates the line to the head line:
of the lower canal. Estimate, viz:
Embankment and terrace.
45180 yards at 12 cents 5421 60
51600 yards at 12 cents 6192
Slope wall square yards
6960
60 4176
4176
Culvert
350
350
Lock No 28
8ft
496
3968
576
4608
Bridges
4 350
1400
1400
15313 60
16726 00
Comparison of the two modes of construction.
By the Delaware basin.
S. Canal
L. Canal
By separate construction
S. Canal
L. Canal .
64th mile as above estimated 19,502 60
22,245 20
64th as above
18,628 80
21,333 60
65th
7,587 60
7,587 60
65th
9,302 90
10,452-90
66th
8,388
8,388
66th
21,602 80
24,417 20
Fraction
7,806
7,806
Fraction
15,315 60
16,726 00
Total
43,284 20
46,026 .80
64,850 10.
72,929 70
43,284 20
46,026 80
Difference in favour of the basin location
21,565 90 26,902 90 The instrumental survey upon which the foregoing report is based, was commenced on the thirtieth of June, and ended early in August. My assistants were Lieutenant Ross, leveller, Lientenant'T. B. Brown, topographer, Absalom Nyce surveyor, and Lieutenants Chare and French volunteers, to all of whom I am under many and great ob ligations.
I have the honour to be, &c. . "
D. B. DOUGLASS.
United States, Military Academy, 29th November, 1828.
LAW CASE.
M'Ewen, Hale, and) In the Supreme Court of Penn- Davidson, sylvania, at Nisi Prius, before VS. Todd, Judge.
Stephen Girard.
January 29th, 1829.
This was an amicable action of Assumpsit, com- menced by agreement, signed the 22d November 1822, and filed on the 27th of the same month; and brought to recover the sum of $1059 67§ with interest from the 7th January 1817. The transactions which gave rise to the suit, as appeared by the evidence upon trial, were as follows:
five dollars in specie, and $25 more in specie or funded debt; every subscriber being required to deliver to the commissioners the specie and certificates of the public debt, with a power of attorney, authorising the said commissioners or a majority of thiem, to transfer the stock to the bank, as soon as it should be organised.
The commissioners appointed for Philadelphia, were William Jones, Stephen Girard, T. M. Willing, Cad- wallader Evans, Jr., and Thomas Leiper. The sub- scriptions opened on the first Monday in July, and con- tinued for twenty days; were found to fall short of $28,000,000, and in consequence were opened again at Philadelphia on the 26th of August, 1816, for the amount remaining unsubscribed, which was about $3,000,000.
The act of Congress, of April 10th, 1816, "To in- corporate the subscribers to the Bank of the United States," provided, that $28,000,000 should be "subscrib- The plaintiffs had made arrangements to subscribe for 2825 shares, equal to $282,500, and for that purpose had deposited in Mr. Girard's bank $14, 125 in specie, and held $70,625 of public debt, being the proportion required by the act to be paid at the time of subscrib- ing. ed and paid for by individuals, companies, or corpora- tions;" and for that purpose directed, that subscriptions should be opened on the first Monday in July 1816, at certain places, to continue open for twenty days. If the subscriptions within that time, should not, in the aggregate, amount to $28,000,000, the books were to On the 26th August, 1816, the books were opened the second time, and the defendant, who was one of the commissioners, was about to subscribe, when Mr. Evans, another commissioner, apprehending that Mr. Girard would take the whole balance, intimated his wish to make a subscription. Mr. Girard gave place to Mr. Evans, and allowed him to subscribe for 100 shares, and then said to the gentlemen present, "If any of you wish be and remain open at Philadelphia, under the superin- tendence of the commissioners there, and receive sub- scriptions of individuals, companies, or corporations, to the amount requisite for completing the 28,000,000. These subscriptions were to be paid, one-fourth in specie, and three-fourths in specie or funded debt of the United States at certain rates: and for each share of $100, there was to be paid at the time of subscribing | to subscribe for yourselves, or your friends, you can do
Excavation
109
LAW CASE.
1829.]
!. " Nobody offering besides Mr. Evans, the whole remaining amount was subscribed by Mr. Girard. When the board of commissioners adjourned, Mr. Wm. Jones, one of their number, met Mr. M'Ewen, a partner in the plaintiff's firm, who appeared a good deal excited, and complained of want of opportunity to subscribe, what he had prepared for by a deposit of specie in Mr. Gi- rard's Bank, and stock which he had got ready Mr. Jones related to Mr. M'Ewen, what had passed at the time of Mr. Girard's subscribing, and said he thought Mr. Girard would let him have the amount he had pre- pared for. Mr. M'Ewen expressed a wish that Mr. Jones would speak to the defendant on the subject, which he accordingly did, informing the defendant of the complaint made by Mr. M'Ewen, that he had pre- pared to subscribe, but was precluded by Mr. Girard's taking the whole balance; and also stating to him that he had mentioned to Mr. M'Ewen what Mr. G. had said at the time he made his subscription. Upon this appli- cation, Mr. Girard agreed to let the plaintiff's have the amount they wished; nothing was said as to the terms on which the plaintiffs were to have the stock. Mr. Jones informed Mr. M'Ewen of the result, and on the 27th of August, 1816, the plaintiffs paid Mr. Girard the sum of $14,125 in specie, and transferred to him, public debt to the amount of $70,625. The defendant on the sanie day delivered to the plaintiffs scrip certificates, promis- ing transfer when the bank should be opened, and sub- sequently transferred 2825 shares of the stock of the United States Bank to various persons, agreeably to the directions of the plaintiff's.
The Bank of the United States was not organized until the 4th of November 1816, and of course the public debt held by subscribers was not transferred to the bank until after that date. The quarter's interest, which became due on the first of October, remained on the books of the Loan Office to the credit of those per- sons who held certificates of public debt; and Mr. Gi- rard, holding the stock which had been transferred to him by the plaintiffs, received, on the 2d of October, 1816, the interest then due thereon, amounting to $1059 673.
Immediately after the Bank of the United States was organized, a question arose in the Board of Directors, as to the quarter's interest upon public debt, the legal title to which had been: in subscribers on the 1st Octo- ber, when the interest became due. Mr. Sergeant, one of the directors, on the 5th November, 1816, offered a resolution, that subscribers be required to pay into bank the proportion of the quarter's interest which accrued after the dates of their respective subscriptions, and the resolution was adopted. On the 7th November this re- solution was reconsidered and recommitted. On the 25th a substitute was reported and rejected, and the re- solution of the 5th was rescinded. On the 7th January, 1817, the Board passed a resolution by which they re- linquished all claim upon the quarter's interest, and di- rected what had been received from subscribers on that account, under the resolution of 5th November, 1816, to be returned to them.
The plaintiff's in this case claimed of the defendant the payment of $1,059 673, the quarter's interest upon the public debt transferred to him by them on the 27th of August, 1816, which interest he received on the 2d of October, 1816; together with interest on the said $1,059 673, from the 7th of January, 1817, the time when the bank relinquished their claims, as above stated.
The defendant pleaded non assumpsit and statute of limitations.
T. Sergeant and C. Chauncey, the counsel for the plaintiff's, insisted that the contract between the parties was to be ascertained from all the circumstances of the transaction, and must be taken to have been that the plaintiffs should be placed by the defendant in the same situation as if they had actually subscribed for the 2,825 shares. Had the plaintiffs been actual subscribers they
would have received the quarter's interest, and would have had a perfect right to it upon the bank's relin- quishing its claims. As to the second plea, they said the suit was brought in good time. The plaintiff's had no cause of action until the relinquishment by the bank, viz Jan. 7, 1817. The agreement to enter this action was signed on the 22d November, 1822. Until the bank relinquished its claims, the defendant held the money as a trustee to pay to the bank, if the bank claimed; but in case the bank relinquished, then to pay to the plaintiff's. The bank had a right to this interest; if the plaintiff's had been actual subscribers they would have received it on the 2d of October, but would have had no right to it until the bank relinquished it.
J. R. Ingersoll and Binney, for the defendant, con- tended that the contract between the parties was sim- ply for the sale of 2825 shares of stock to the plaintiffs. The defendant had fulfilled his part, by transferring the shares to such persons as the plaintiff's directed, and thus the business was at an end. Mr. Girard had subscribed, as he had a right to do, for the whole balance, and thereby rendered a service to the public, because the amount required to be subscribed by individuals, &c. might otherwise not have been made up. Mr. Girard gave his money for the stock, and the plaintiffs were to have a certain number of shares for their money. There was no agreement until the 27th of August, 1816, when the defendant gave the plaintiff's scrip certificates, by which he engaged to transfer so many shares, as soon as the bank should be opened. This he had done.
If the plaintiffs ever had a cause of action, it ac- crued on the 2d October, 1816, when the quarter's in- terest was received. The Bank never had any right to this interest, and the resolutions passed by the Directors amounted nearly to an acknowledgment that they had no right. The defendant was a purchaser of the stock and was entitled to the interest which became due upon it. The plaintiff's, at all events, could not recover for the proportion they purchased as agent for others; and, it appeared only a small part of the 2825 shares was for themselves.
Todd, J. charged the jury to the following effect:
There are two questions in this case. 1st. Had the plaintiffs ever a legal right to the money in dispute? 2d. Have they now a right to receive it in this suit ?- The defendant agreed that the plaintiffs should have some of the shares for which he had subscribed, he let them into an interest in the subscription; the plaintiffs advanced the funds, or replaced the next day what the defendants had paid. The quarter's interest on the pub- lic debt transferred by the plaintiff's to the defendant, was paid to the defendant and held by him.
The act of Congress, section 3, is material. It con- tains these words: "Together with the amount of inte- rest up to the time of subscribing." The construction of the commissioners would not have occurred to me. I think the commissioners ought to have credited sub- scribers at the time of subscribing, with the amount of interest up to that time. Perhaps I am wrong. The sixth section provided that the interest on public debt paid to the bank for the subscription of the government should be paid quarterly, to commence from the time of the payment on account of such subscription.
The first of the questions, I have stated, is a question of fact for your consideration: my opinion is not to bind you. Was this a purchase and sale of so much stock? If it was, nothing is due to the plaintiff's: or, was the contract, that the plaintiffs should stand in the place of the defendant as subscribers? This you will determine. Had the defendant a right to take the whole balance of 30,000 shares? Yes, if no one else appeared for the purpose of subscribing, but if others did appear, and wished to make subscriptions, I think he had not such a right. (The Judge here read the provisions of the act in case of the first subscription falling short.) It was the duty of the commissioners to keep the subscription open, for some time undoubtedly. The citizens gene-
110
MERCANTILE LIBRARY.
[FEBRUARY
rally should have had an opportunity as well as the commissioners. The commissioners were to superin- tend the subscription, and were paid for so doing. It does not appear that the defendant meant to take all, to the exclusion of others; but clearly, the commissioners had not the right to exclude other persons. This has no bearing upon the case, except as it affords a reason for the contract contended for by the plaintiffs. If the. contract was that the plaintiff's should be on the foot- ing of subscribers, the defendant had no right to the interest in question more than he had to the 2825 shares themselves.
It has been said that the written engagements to trans- fer the bank stock when the books should be opened, are conclusive proof of sale. That was before the Cir- cuit Court of the United States, in the case of McCul- lough vs. Girard, and it was answered that they were a partial execution of the contract. Nothing was said about price or terms: now perhaps it is strange that there were no terms agreed on, if this was a sale. If it was not a sale, the plaintiffs (to use an expression em- ployed by one of the counsel) " stand in the defendant's shoes." Mr. Jones, who was produced as a witness, says, not that the plaintiffs applied to defendant to pur- chase, but that Mr. M'Ewen was indignant at the de- fendant's taking all. He might have complained that the books were not kept open. . Mr. Jones said two or three times that the defend't consented that the plaintiff's might subscribe; and the witness was not subjected to a long and perplexing cross-examination, but told a plain story. I do not understand that any other persons than the commissioners were present; nor that the application to the defendant was a day or two after his subscription: "when the Board adjourned," said Mr. Jones. The defendant in point of lionour was bound not to take all to the exclusion of others, and in point of law he had no right to do so: indeed a commissioner had the last right, after others. That might be a reason for putting the plaintiffs in the situation of subscribers; and if they were so placed, they were entitled to their interest: the sha- dow follows the substance. It is for you to determine what was the agreement.
The plaintiffs, if entitled to recover, are so entitled as well for the proportion for which they were agents of other persons, as for their own paris. Separate suits need not be brought. This suit may be sustained by the plain- tiffs; though they be not owners of the shares, they are responsible to their principals.
My mind has varied upon the other point, during the trial; but it appears to me now, that the act of limitations is a complete bar to the plaintiffs' suit. It is a plain law, and I dislike metaphysical refinements. Suppose the bank had the right to this interest, (I dont believe they had, ) then the defendant had gotten the bank's money .. The bank relinquishes or transfers, can the transferree have 6 years after that? Suppose a note trans- ferred, the bank would be barred first, and then their as. signee, if that could be. I don't understand the last re- solution of the bank, it refers to a former of the 18th, but undoubtedly the bank have given up their claim. The act of limitations is more important to the public than this cause is to the parties ..
Verdict før the defendant. «.
[Aurora.
MERCANTILE LIBRARY.
The seventh annual meeting of the Mercantile Library Company was held at their rooms on the evening of the 8th inst, when
Mr. THOMAS C. ROCKHILL, was called to the chair; and
Mr. BENJAMIN ETTING, appointed Secretary.
The Annual Report of the Directors and Treasurer having been presented and accepted, the following reso- lutions were considered and unanimously adopted.
Whereas, it appears from the Report now presented, that thirteen shares of the Library Stock remain unsold; therefore,
Resolved, That the Directors be authorized to issue certificates for two hundred additional shares.
An election was then held for the choice of thirteen Directors and a Treasurer for the ensuing year.
Signed,
TIIOMAS C. ROCKHILL, Chairman. BENJAMIN ETTING, Secretary.
Report of the Board of Directors.
Since our last annual meeting our association has re- ceived new proof of the excellence of the principles up- on which it was formed, and of the just appreciation of its objects by our fellow citizens. Seventy-five shares of stock have been sold during the year, of which fifty- nine have been issued to new members and sixteen to annual subscribers, who thus connected themselves with the society by a more permanent relation. Thirteen shares only now remain in the possession of the Com- pany.
In pursuance of a resolution of the members an act of incorporation has been obtained, which has pas- sed through nearly all its forms and will probably be completed within the present week. Such legal recog- nitions, are very properly sought by institutions, com- posed like our own of numerous members, and the ad- vantages are too obvious to be detailed.
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