
    [Lancaster,
    May 30, 1825.]
    MORBERGER against HACKENBERG.
    IN ERROR.
    If by the correspondence and course of dealing, between a merchant in the city and another in the country, the former is authorized to send goods to the latter without special order, the property of goods so sent vests in the latter, from the delivery to the carrier.
    It is not error that the judge who delivered and filed of record the opinion of the court, did not reduce to writing- and file of record his reasons for the opiniqn, when requested by the party.
    In the Court of Common Pleas of Schuylkill county, a verdict and judgment were rendered in this cause in favour of Lazarus Hackeriberg, the .plaintiff below, against Simon Morberger, the defendant below and plaintiff in error, for the sum of one hundred and six dollars and eighty-four cents, and the cause was now removed by writ of error.
    The plaintiff below, a merchant residing in Philadelphia, sent goods by the defendant, a common carrier, to be delivered at the house of John Hammer, a merchant in Orwigsburg. It appeared in evidence, that Hammer gave a written order to the defendant to bring him certain goods'mentioned in the order, which he was to receive from the plaintiff in Philadelphia. The plaintiff delivered to the defendant not only the goods mentioned in the order, but other goods not mentioned, to be carried to the house of Hammer in Orwigsburg. This action was brought against the defendant for not safely carrying the goods committed to his charge.
    On the trial of the cause, after the evidence had been closed,1 the counsel for the defendant requested that the opinion of the court with their reasons therefor, should be reduced to writing, and filed of record in the cause, upon the following points.
    1. Can Morberger, the defendant, be liable in this action, he never having undertaken to carry for the plaintiff, nor did the plaintiff undertake, nor is he liable to pay him.
    
      Charge. From the evidence and the law arising therefrom, he can be liable in this action.
    2. John Hammer having sent an order by a particular carrier, Simon Morberger, did not the delivery of the goods to the carrier vest the property in John Hammer.
    
    
      Charge. The delivery to the carrier vested the property in John Hammer of the goods ordered, not of the goods not ordered.
    
      3. If the plaintiff sent more goods than Hammer ordered, can the defendant be liable for the loss of them, having no contract with the plaintiff.
    
      Charge. From the evidence given he can.
    4th. If the plaintiff sent more goods in virtue of his understanding with Hammer, did not the property vest as fully in Hammer on the delivery to Morberger, the defendant, as if the goods had all been ordered by Hammer.
    
    
      Charge. It did not.
    The following errors were now assigned:
    1st. The court did not expound the law as requested in the first and third points.
    2d. The court in answering the first and third points, gave an opinion on the evidence, and thereby withdrew the decision of the eause from the jury.
    3d. In answering the second point, the court erred in not confining their answers to the question stated. .
    4th. The court erred in their answer to the fourth point.
    5th. The court did not give their reasons for any of their opinions.
    
      Leoser and Buchanan for the plaintiff in error,
    cited 2 Serg. & Rawle, 44, 49, 70. 1 Serg. & Rawle, 449. 8 Serg. & Rawle, 150. 4 Serg. & Rawle, 329. 2 Esp. Dig. 251, 252. 2 Saund. 47. Jeremy’s Law of Carriers, 94.
    
      Wright, contra,
    cited 3 Serg. & Rawle, 269.
   The opinion of the court was delivered by

Tilghman, C. J.

The evidence on both sides having been given, the counsel for the defendant, requested the president of the court, “ to deliver his opinion on some points, with his answers therefor, in writing, and file the same of record in the cause,” according to the provision of the act of the 24th of February, 1806, sect. 25.

I will take notice first, of the fourth point, because it is the most material. The question proposed to the court was this: “If the plaintiff sent more goods, in virtue of his understanding with Hammer, did not the property vest as fully in Hammer, on the delivery to Morberger, the defendant, as if the goods had been ordered by Hammer.” The president answered, “ It did not.” The question was not so clear as it might have been, yet I think it might have been understood. Its meaning appears to be this: If, in consequence of the correspondence and course of dealing between the plaintiff and Hammer, the plaintiff was authorized to send goods to Hammer without special order, and did accordingly send goods not specially ordered, to be carried by the defendant to Hammer, did not the property vest in Hammer, immediately on the delivery of the goods to the defendant. On this state of the case, the property would certainly be vested in Hammer, on the delivery to the carrier, for it made no difference, whether the goods were sent under a genei’al authority, or by special oi’der. The jury should have been instructed, that they wei-e to decide whether the plaintiff had shown any authority, general, or special, to send the goods. If he had, the property vested in Hammer on delivery to the defendant. But if not, the property did not vest. The extreme shortness of the president’s answer might have left the jury under some uncertainty how they were to act. But, as the question, in the manner it was put, supposed that the plaintiff was authorized to send the goods, I am of opinion that the answer of the judge was erroneous.

In the answer to the first, second, and third questions, I perceive no error. But the counsel for the plaintiff in error, has also assigned for ei'ror, “ that the president of the Court of Common Pleas, although requested, did not give his reasons for his opinion on any of the points proposed to him.” As the same complaint has been made in several other causes which have been argued this term, it is necessary that the opinion of this court should be given on it. The direction of the act of assembly is plain, and positive, that, “ if either party, by himself or counsel shall require it, it shall be the duty of the judge who delivers the opinion of the court, to induce the opinion so given, with his reasons therefor, to writing, and file the same of recoi'd in the cause.” In executing this law, every judge acts on his own responsibility. But what we have to consider, is, whether1, if the act be disobeyed, it is error, for which tlie judgment should be reversed. And I am clearly of opinion that it is not ei’ror; because the act does not say that it shall be so, and it would be most unjust to visit the offence of the judge (supposing that he had been guilty of an offence) on an innocent suitor, who had obtained an honest and legal judgment. What this court has to inquire, is, whether there be error, in law, in the record. And if there is not, the judgment is to be affirmed. I am of opinion that -there is error in the court’s answer to the fourth point proposed by the counsel for the defendant, and in no other part of the record. This judgment is therefore to be reversed, and a venire de novo awarded.

On motion of counsel for plaintiff in error, restitution awarded.  