THE LIBRARY

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW

REPORTS

CASES

ADJUDGED IN THE

SUPREME COURT

PENNSYLVANFA.

BY HORACE BINNEY.

VOL. I

•.' . \

PHILADELPHIA:
f UHLlSUKn «Y WILLIAM I' 1 AIHIAND AXl) W

1809.

District of Pennsylvania, to m it:
«***««* BE IT l?EMEAfREREU, That on tlic sc\enteenth
*SEAL.* ''•'>' ot Uecembcr, in tlie tliirtv-third year of the inde-
» * neiidence of the United States of America, A. D. 1808,

Horace Minney, of the said district, hath deposited in tins
office the title of. a book the right whereot he claims as author, in
the words following, to wit:

" Reports of Cases adjudged in the Supreme Court of Pennsyl-
vania. By Horace Binney. Vol. I."

In conformity to the act of the congress of the United States, in-
tituled " An act for the encouragement of learning, by securing the
copies of maps, charts, and books, to the authors and proprietors of
such copies during the times therein mentioned." And also to the
act, entitled "An act supplementary to an act entitled 'An act for the
encouragement of learning, by securing the copies of maps, charts,
and books, to the authors and proprietors of such copies duri:ig the
times tlierein mentioned,' and extending the benefits thereof to the
arts of designing, engraving and etching historical and other prints."

D. CALDWELL,
Clerk of the District of Pennsylvania

IVv and Kammerer, Printers.

■( AUG 1^ iS9e

PREFACE.

T TPON submitting to the public the following Re-
ports, the author feels the necessity of making
some apology for having adopted a form of publication
which implies a series of recent cases, while not a few
in the first number are of rather a remote date. It was
his design, formed several years since, to note the argu-
ments and decisions in the Supreme Court of this State;
not with any fixed view to publication, but principally
to inform himself upon points of law which are of local
concern, and which are to be found no where so well
illustrated as in the arguments of gentlemen experienced
at the bar. But limited as this design was, it suffered
such material interruption, that the fruits of the atten-
tcntion bestowed, however valuable in kind, were very
inconsiderable in (juantity; so that when in the course of
the past year, the plan of publishing in numbers the
future decisions of this Court, was adopted upon the
suggestion of his friends, the amount in his possession
was altogether too small to claim any consideration by
itself. Most of the cases, at the same time, involved
questions of so much interest to the Bar of Penn-
sylvania, and had been so frerjuently the object of
reference while in manuscript, thnt it wns thought bet-

IV PREFACE.

ter to interfere a little with the unity of the plan, than to
keep them baek; they are therefore to be found in ihe tirst
of the two numbers now published, which, with the addi-
tion of a third of equal amount, will form a volume of
convenient size. How frequent the publication of these
numbers will be, must depend essentially upon the situ-
ation of the court; but the author's access to the notes
and opinions of the judges is upon a footing of so much
facility to himself, that it is probable he shall persevere
in the collection, full as long as he shall be able to
persuade himself that he renders any service to his
profession.

To indulge in merely the common phrase of gratitude
for the kindness of Chief Justice Tilghman in aiding
thus far the execution of these Reports, would lead to a
very erroneous estimate of its amount. For a consi-
derable number of cases, those in particular decided in
^ the Western and Middle Districts, the reporter is in-

debted to him not only for the opinions of the Court,
but for a statement of the facts and points, for a note of
the arguments, and indeed for every thing but the dress
in which the reports appear. To be more particular
would probably oiFtnd the delicacy of a mind which has
acted solely from the impulse of benevolence, iuid which
perhaps would have been better pleased by the with-
holding of even this general acknowledgment.

The reporter at the same time confesses with great
sensibility the courtesy of the Judges of the Sui)reme
Court, "whose opinions have always been at his service
to transcribe, and the notes of one of whom, Mr. Justice
Smith, have enabled him more than once to supply a
chasm, or to detect an inaccuracv in his own.

PREFACE.

To the gentlemen of the Bar he probably owes an
apology for his imperfect report of their arguments; at
the same time he trusts that he is not chargeable in this
particular with any very serious mistatements. As the
merit of accuracy is undoubtedly the highest to which a
reporter should aspire, he must feel in the present in-
stance a sensible disappointment, if he is not found in
some measure to have attained the point to which his
eye has been constantly directed. He however stands
so much in need of pardon for failure in every depart-
ment, that he is perhaps indiscreet in not throwing the
whole upon the liberality of the profession, any doubt
of which has certainly not led to these few lines of
preface.

December isos

JUDGES

OF THE

SUPREME COURT OF PENNSYLVANIA.

EDWARD SHIPPEX Escj. Chief Justice. Appointed December 18, 1799.
WILLIAM TILGHM AN Esq. Cliief Justice. Appointed February 2G, 18O0,

in the place of Cliief Justice Shippen, resigned.

JASPER YEATES Esq. "J f March 21, 1791.

THOMAS SMITH Esq. (.Judges. Appointed J January 31, 1794.

HUGH H. BRACKENRIDGE Esq. J (^ December 1%, 1799

ATTORNEY GENERAL.

JARED INGERSOLL Esq. Appointed August 2'2, 1791.

JOSEPHB. M'KEAN Esq. Appointed May 10,1800, in the place of Jarcd

ingcisoll Esq. resigned

TABLE OF THE CASES

The Cases in Italics are cited from MSS.

AlBERTY, Dawson r. - 105

Reinholclt v. - 469

Ammons, Simpson's Lessee v. 175

Backhouse, Jenk's Lessee v. - 91

Bailey, Watson's Lessee u. 470

Baker, Wallace v. - - 610

Baker's case, ... 462

Bank U. S., Cramond v. • 64

Levy V. - 27

Bamet, Yohe v. - - 358

Barry, Crawlord v. - - 481

Beauvarlet, Petry v. - 97

Beattie, Roberta'' I.e-sace v. 440

Bell V. Bevcridgc^ - - 52

Benner v. Frey, - - 366

Bcrquier, Desesbats v. - 336

Bcrthon v. Kcele\', - - 502

Beveridge, Bell v. - - 52

Birch, McMillan I.'. - - 178

Black, Boggs V. - ' 333

Boggs V. Black, - - 32P.

Boileau, Vansant v. - - 444

Boyer, Commonwealth v. • 201

Brown -c. Oirard, - - 40

Rowley v. - - 61

V. Van/iorncy - - 334

Buchanan's Lessee v. Maclure, 385

Buckxvalttr, Hamilton v. - 5 72

Bull, Sterrett v. - - 234

Sterrett v. - - 238

Rurnes, Woglam v- - 109
Vol. L

Calbraith v. Grade,

Calhoun v. Insm*ance Company
of Pennsylvania,

Canal Company v. Sansom

Canhy v. Ridgwav,

CecWs Leasee v. Korbman,

Chaffant, Johnson v.

Champnevs v. Lisle,

Cochran, Commonwealth v.

Patterson's Lessee v.

Commonwealth v. Boyer,

V. Cochran,
V. Davies, -
V. Douglass,
V. Diuinc,
V. Duane,
V. Messinger,
V. North,
V. Pascalis,
TurnbuU v.

Cox\ yenninifa v.

Coxe, Garrigues v. - -

Cramond v. Bank U. S.

Crawford v. Barry,

Croxall's case,

Cutshall, Ross's Lessee v.

Dallas, Woods v.
DavieSi Commonwealth v.
l)aws(m V. Alhertv,
Deljcnnevllle v. Dchenncville,
Delaware Insurance Company v.
Gilpin, . . -

296

293

496

134

327

324

231

201

324

601

273

588

592

481

589

399

146
97

105
46

501

lABLK Or THE CASES.

Drmpsc!/ V. Insurance Company

of Pcnnsijlvanid, - - 300

Dcscsbats I', litrquicr, - 336

Dilworth's Lessee v. Sinderling, 488
Douglass, Commonwealth v. 77

Drum V. Snydor, - - 381

Duane^ Commomvealth v. - 98

Commonwealth y. 601

Morris v. - - 90

Duhosq V. Guardians of the Poor,415
Dunwoody's Admrs. Ruston, v. 42

Ebert u. Wood, - •• 216

Eckhart, Syler's Lessee t;. 378

Eckart, Crasser v. - - 575

Eddy's Lessee, Faulkner v. 188

Elder, Summcrl v, - - 106

Emerick v. Harris, - - 416

Evans, Webb v. - - 565

Ewing V. Tees, - - 450

Faulkner v. Eddy's Lessee, 188

Folwell, Smith's Lessee v. 546

Fortune, Harris v. - - 166

Fox V. Wilcocks, - - 194

Franklin, Wilt v. - - 502

Frazer's Lessee v. Hallowell, 126

Frazer v. Tunis, - - 254

Frey, Benner v. - - 366

Gallngher''s Executors ^Spajf or d v. 590

Garrigues v. Coxc, - - 592

Sparkes v. - 152
Gibson v. Insurance Companj'^of

Philadelphia, - - 405

Gilchrist v. Ward^ • - 41
Gilpin V. Delawai-e Insurance

Company, - - - 501

Giravd, Brown v. - - 40

Godshall v. Mariam - 352

Gorgas, Livezey t). - - 251
Gourdon v. Insurance Companij

of North America^ - 430

Grade, Calbraith v. - 296

Graham v. Hamilton, - 461

Crasser v. Eckart, - 575

Gratz V. Phillips, - - 588

Ciregory, Kennedy v. - 85

Griffith' "y. Ogle, ' - - 172

Grubby M'-Cidlough v. - 57 Z
(iuardiansoi'thePoor, Dubosqu. 415

Cnietner, rvI^Cullough v. - 214

Guicr V. 0' Daniel, - - 349

Hallowell, Frazer's Lessee v. 126

Hamilton v. Bucktvalter, 572

Hamilton, Graham v. - 461

liar kins ^ Tracy v. - - 395

Harris, Emerick v. - - 416

V. Fortune, - - 125

Hartman v. Weiser, - 253

Hartzell v. Reiss, - - 289

Hazard v. Israel, - - 2-iO

Hazard's Lessee v. Lowry, 166

Hecker v. Jarrett, - - 3/'4

Heiser, Hughes v. - . 463

Henry v. Kennedy, - 458

Hicks, Pemberton's Lessee v. 1

Hill's Lessee v. West, - 486

Hoar V. Mulvey, - - 145

Hodgson's Lessee v. Shcrer, 535

Hoffman, Snyder's Lessee v. 43

Holloway, Pigott v. - - 436

Hughes V. Heiser, - - 463

Nurst\s' Lessee v. Kirkbride, 616

Hutcheson v. Johnson, - 59

Ingersoll, Woods v. - 146

Ins. Co. N. A., Watson "o. 47

Gourdon v. 430

Jones V. - 38

Rousset V. 429

Ins. Co. Pennsylvaniat;. Ketland, 499

Calhoun u. 293
Dempseyv. 300
Ins. Co. Philadelphia, Gibson v. 405
Israel, Hazard v. - . 240
Jarrett, Hecker v. - - 374

Jenks' Lessee v. Backhouse, 91

yenning-sv. Cox, - - 588

Johnson, Ozeas v, - - 191

TABLE OF THE CASES.

Johnson v. ChafFant, - 75

Hutchtson V, - 59
Jones I'. Insurance Company of

North America, - - 38

Jordan v. Prleredith, - 27

Keeley, Berthon v. - 502

Kennedy i;. Gregory, - 85

V. Lowry - - 393

Henry v. - - 458

Keppele, Lang v. - - 123
Ketland, Insurance Company of

Pennsylvania v. - - 499

Kethnd V. Medford, - 497

Kin'zcr, Shaffer v. - - 5^7

Kirkbride^ Hurst's Lessee v. 616

Korbman^ CecWs Lessee v. 1 34

Kyle's Lessee v. White, - 246

Lang V. Keppele, - - 123

Lane V. Schreiner, - 292

Latimer v. Kidge, - - 458
I..evyy. Bank of the United States, 27

I-isle, Champneys v. - 327

Livezey v. Gorgas, - - 251

Lower Dublin School v. Paul, 59

Lowry, Kennedy f • - 393

Hazard's Lessee v. 166

M'-Culloitgh^Grubb V. - 573

V. (iuetner, - 214

Miles V. - 77

V. Young - 63

M'Kean v. Shannon - 370

M'Laughlin V. Scot, - 61

M'Millan v. Birch, - - 178

M'Rhea's Lessee v. Plummer, 227

Maclure, Buchanan's Lessee v. 385

Mannhardt v. Soderstrom, 138

Mariam, Godshall v. - 352

Medford, Ketland v. - 497

Mererlith, Jordan v. - 27

Messinger, Commonwealth v. 273

Miles V. M'CulIough, - 77

Mitchell V. Smith, - - IJO

Moore v. Wait,
Morris v. DiianCy
Mulvey, Hoar v.
Murray v. Wilson
Myers v. Urich,

Neff's Lessee v. Neff,
North, Commonwealth v.

G* Daniel^ Gider v.
Ogle, Griffith v.
Ozeas V. Johnson,

219
90

145

531

350
97

349
172
191

Pascalis, Commonwealth v. 37

Patterson's Lessee v. Cochran, 231

Paul, Lower Dublin School v, 59

Pemberton's Lessee v. Hicks, 1

Petry v. Beauvarlet, - - 97

Phillips, Gratz v. - - 588

Pigott V. Holloway - - 436

Plummer, M'Rhea's Lessee v. 227

Porter, Smith v. - - 209

Quigley, Shortz v. - -

Ramsay, Scott v. - -

Reinholdt v. Alberty,

Reiss, Hartzell v. - -

Ridge, Latimer v. -

Ridgway, Canbyu.

Roberts^ Lessee v. Bcattif^

Ross's Lessee v. Cutshall,

Rousset V. Insurance Company
of North America,

Rowley v. Brown,

Kugan V. Wi-st,

Ruston V. Dunw'nody's Admi-
nistrators,

Sansom, Canal Company v.
Schreiner, Lane v. -
Scot, M'J^aughlin v.

222

221
469
289
458
496
440
399

429
61

263

70
292

TABLE or THE CASES.

Scott r. Ramsay, - - 221

Shaffer v. Kintzer, - 5^7

Shannon, M'Kean u. - 370

Sherer v. Hodgson, - 5o5

Shortz V. Quigley, - - 222

Simpson's Lessee v. Amnions, 175

Sinderling, Dilworth's Lessee v. 488

Smith's Lessee v. Folwell, 546

Smith, Mitchell y. - - 110

V. Porter, - - 209

Snyder, Drum v. - - 381

Snyder's Lessee v. Hoffman, 43

Soderstrom, Mannhardt v. 138
Spafford v. Gallagher'' s Executors^590

Sparks v. Garrigucs, - 152

Sterrett v. Bull, - - 234

V. Bull, - - 238
Stexvart''s Executors^ Wootering v.22 1

Summerl v. Elder, - - 106

Syler's Lessee v. Eckart, 378

Tees, Ewing v.

Tracy v. Harkins.,

T unis, Frazer v.

TurnbuU %\ Commonwealth,

Urich, Myers v.

450
395
254

Vanhorne, Broivn v. - 334

Vanlear v. Vanlear, - - 76

Vanlcar v. Vanlear^ - 447

Vansant v. Boileau, - 444

Wait, Moore v. - - 219

Wallace v. Baker, - - 610

Warcl^ Gilchrist v. - - 41
Watson V. Insurance Company

of North America, - 47

Watson's Lessee v. Bailey, 470

Webb V. Evans, - - 565

JVehcr^ Hartman v. - 253

West, Hill's Lessee v. - 486

Kugan u. - - 263

White, Kyle's Lessee v. - 246

Wilcocks, Fox v. - - 194

Wilson, Murray u. - - 531

Wilt V. Franklin, - - 502

Woglam V. Burnes, - 109

Woods V. IngersoU, - 146

Wood, Ebert u. - - 216
Wootering v. Stewart* sExecutors^ 221

Yohe V. Barnet,
Young, M'Cullough v.

358

ERRATA.

Page 212, line 7, for "is not allowed" read "ought not."

In a few of the copies the first two lines on page 347 should
have been inserted immediately before the last line on
page 348.

Page 349, line 5, for "ed" read "carried."

CASES

IN THE

SUPREME COURT

PENNSYLVANIA.

Tb T Lessee oFPemberton and others a^ai?ist Hicks.

9sj368j_ O

CASE stated, to be considered in the nature of a special 1799.
verdict.

Monday,
December
^^ Joseph Gallffwaij intermarried with Grace Groxvdon^ by 23.

'' whom he had issue bom alive (and still remaining alive) be- The curtesy

' fore the death of Lawrence Groxvdon father of the said Grace; husband in"^

' which said Lawrence being seised in fee simple of the premi-^l'e lands of

' ses in the declaration mentioned, by his testament and last „(,j forfeited

' will duly executed devised the same with otlier real estate *f> 'he com-

' to the said Grace Galloxvay and a certain Elizabeth iV/c//c/- Cj,.^),^);,^ ^^^

' son his two daucrhters, in fee. Thomas Nicholson the husband '•>*' luisljaud

' of the said Elizabeth, and Joseph Galloxvay and Grace his laindci" for

' wife, in due form of law made partition by writ of the premi- truabon <om-

' ses to them devised as aforesaid, in which said partition the i,^,',, lititjme

' premises in the declaration mentioned were allotted with other ;>"<' after is-

' real estate to the said Grace Galloway, and the an'id jfosephGal- i,„t tlic

' loway in right of the said Grace took the exclusive possession wifi;'s estate

'thereof under the said allotment on the 24th of December, ^^^ll^.^^l^l^^

' A. D. 1773. The said Joseph Galloxvay afterMards by act of curtesy

' Assembly passed on the Gth of March 1778 was required to

' surrender himself under pain of being attainted of high trea-

' son. The said Joseph Galloxvay did not surrender himself

Vol. I. A

2 CASES IN THE SUPREME COURT

1 799. '" accordingly, and thereupon became and stood attainted of

T "high treason to all intents and purposes and his estate for-

of " feited to the commonwealth, the said Grace Gallowatj being in

Pember- " full life. The said premises were afterwards seized and sold

iON u jjy ^]je agents for forfeited estates, and the same conveyed to

Hicks. " ^^o^e under whom the defendants hold, by the common-

" wealth. I'he said Joseph Gallo-waij so being attainted depart-

*' ed out of the United States into parts beyond sea and there

" continues in full life. The said Grace Galloxvay continued in

" the United States, and afterwards, to wit on the 6th Fcbruanj

*' 1 782, died seised in fee simple of the premises in the declara-

** tion mentioned, having first, to wit on the 20th of December

" 1781, duly made and published her last will in writing where-

" by she devised the same to Oxven yones and others, the sur-

" vivors of whom are the lessors of the plaintiff. The plaintiff

" entered and was ousted by the defendant. UpcHi these facts the

" question submitted to the court is whether the law be with the

" plaintiff. If it is, judgment to be entered for him with six

" pence damages and six pence costs; if it is not, judgment to

*•' be entered for the defendant."

The point to which the arguments were directed, was whe-
ther Joseph Gallorvai/^ who was tenant by the curtesy initiate
of the premises, had such an estate therein as was forfeited to
the commonwealth upon his attainder by act of Assembly passed
the 6th March 1778; the 5th section of which is as follows:
*•* All and every the lands, tenements, hereditaments, debts or
*' sums of money, or goods or chattels whatsoever, and gene-
" rally the estates real and personal of what nature or kind
" soever they be, within this state, whereof the aforesaid Joseph
" Galloxvay &c. shall hnvchetn possessed oJ\intei-ested in, or en-
" titled unto, on the 4th day of July 1776, or at any time after-
*' wards in their orvn right or to their use, or which any other
*' person or persons shall have been possessed of interested in
" or entitled unto to the use of or in trust for them or any of
" them, shall according to the respective estates and interests
" which the persons aforesaid or any in trust for them or any
" of them shall have had therein, stand and be forfeited to this
" state." 1 St. Laws 752. The case therefore embraced not only
the proposition whether upon general principles an estate of te-
nant by the curtesy initiate is forfeited to the commonwealth by

OF PENNSYLVANIA. ;}

an attainder for treason, but also whether it was not made for- iT'go.

feitable even against general principles, by this act of assembly. ~ ■"*

At March term ir98 it was argued before all the judges by of

E, Tilghman for the plaintiff, and by Dallas for the defendant; PembeR'

and again at December term 1798 by i-eww for the plaintiff, '^°'''

and by Iiip-ersoll for the defendant. „

•^ "^ HrcKs-.

For the plaintiff. A consideration of the case under three
points of view will present the main question in such a manner
as to shew clearly that the law is with the plaintiff. 1. What
was Galloivay^s estate before issue ? 2. What was it after issue ?
3. How does the forfeiture operate after issue ?

1. By the marriage the husband becomes seised in right
of his wife of her inheritance, and is entitled to the rents
and profits during coverture, to his own use. This is an
unconditional consummate right vested in him eo instanti of
the marriage, and upon his attainder the king shall take the
rents and profits as forfeited during the coverture. 1 II. H. P..
C. 251. 253. But the marriage itself does not give the husband
a freehold, nor can he declare in covenant that he is seised in
his demesne as of freehold in right of his wife; he must declare
on a seisin in fee in himself and his wife in right of his wife,
otherwise it is bad. Polyblank v. Haxukins. (a) The fee and the
frank tenement therefore remain in the wife undivcsted by the
marriage, and neither of them is forfeited by the attainder of
the husband. Co. Litt. 351.

2. Upon the birth of issue a new consideration in law takes
place ; and in as much as by the law of nature he is bound to
support this issue, the law of England gives him a title to have
an estate for his life in the inheritance of his wife if he ahall sur-
vive her. The estate however is not actually imparted to him ;
it is both eventual and conditional ; and the freehold is not
taken from the wife and vested in the husband tmless and tintil
he shall happen to sui-vive her. He has a title, but no estate.
A title is the means or cause by which a man has the just pos-
session of his property-. 2 Bl. Com, 195. A man is entitled to the
estate by feoffment, but lie has no estate before livery. He has
also a title to take an estate upon a condition precedent, but he
ha"? neither the estate nor the right to the land until the cpndi-

{■«) Doug. 315.

Hicks.

4 CASES IN THE SUPREME COURT

1799, tion is performed. So the husband has a title or the means con

"""t fcrred by law of taking the estate by the curtesy upon the con-

Qf ditions that his wife be seised in deed as well as in law, that the

Pember- seisin be of an estate to which the issue between them is inhe-

TON ri table, that he have issue by her, and that he survive her,

otherwise not. Co. Litt. 30. a. and sec. 52. %I0^

Littleton in his definition of a tenancy by the curtesy, sec.
55. expressly refers the estate and seisin of the husband to
the happening of the last conditional event. " If the -wife dieth,
*' the husband shall have the land during his life." And in sec.
90. he calls it a title only in the husband to have the tenements
" if he survive the wife." " Tenant by the curtesy is he who
" after his wife's death (having had issue by her inheritable) is
" introduced into her inheritance and has an estate for life
« therein." 2 Bac. Abr. 218. Doc. and Stud. lib. I. c.27.

But the estate is said to have a beginning after issue, which
is respected in law for divers purposes; these purposes how-
ever as enumerated by Lord Coke fully prove that the husband
has no seisin of the land either in law or in deed in his own right
until the death of his wife.

First. After issue had the husband shall do homage alone.
The reason for this appears in Co. Litt. sec. 90. " None shall
" do homage but such as have an estate in fee simple or fee tail
" in his own right or in right of another. For it is a maxim in
" law that he that hath an estate for his own life shall neither
" do homage or take homage. For if a woman hath lands in fee
" simple or fee tail which she holdeth of her lord by homage,
" and taketh husband and hath issue, the husband shall do
" homage, because he hath title to have the tenements by the
" curtesy of England if he survive his wife. But if the wife dies
*' before homage done in the life of the wife, and he holdeth
" himself in as tenant by the curtesy, then he shall not do
*' homage, because he then hath an estate but for term of his
" own life." The reason of his doing homage alone for the fee,
is that he has a title to the curtesy if he survive his xvife^ for if
he had an estate for his own life at that time, homage would not
be due for it.

Second. If after issue the husband makes a feoffment in fee,
and the wife dies, the feoffee shall hold it during the life of the
husband, and the heir of the wife shall not during that time re-
cover it in a " sur cuiin vi^a." Now the reason of the case de-

OF PENNSYLVANIA. j

monstrates that the husband had no estate by the curtesy vested j 799,
in him at the time of the feoffment; for if he had, the feoffment — Z
would have worked a forfeiture, and the land might have been ^f
recovered against the feoffee. Co. Litt. 251. a. b. 252. a. 333. b. Pember-

Third. Tenant by the curtesy cannot claim by a devise and "^"^
waive his curtesy, because by 29 E. 3. fo. 27. the freehold u^*
commenced in him before the devise for term of his life. The
reason of this is, not because he had the freehold in him, but
because the title to it commenced before the devise. For the law,
where a man has two titles to take an estate, will adjudge him
in by force of the elder, and will not permit him to claim by the
latter title. Litt. sec. 659.

After issue therefore the husband has no greater estate than
before, unless he survive his wife. He has a title to have an es-
tate upon certain conditions ; and although this estate has thus
a beginning respected for certain purposes, yet Lord Coke con-
fines them to the three above mentioned, which is a strong
argunxeut to shew that it is respected for no other purpose
whatever. It is admitted by lord keeper Coventry^ when attor-
ney general, arguing for a forfeiture to the crown in Sheffield
mnd Radcliff^ {a) " That a tenant by the curtesy cannot grant
*' in the life time of the wife his estate by the curtesy to another,"
because nothing shall pass by grant but what lawfully may pass,
and a man cannot lawfully pass an estate before he has it. It
seems to follow therefore that not having the estate he cannot
forfeit it for treason, which is the third point.

3. It cannot be questioned that if the husband dies before
the wife, the estate by the curtesy is never completed. The last
condition is not performed; and however the beginning of the
estate be respected, it has at last by the death of the husband,
living the wife, turned out to be an ineffectual beginning. By
the attainder of Galloway he became civiliter ynortiius, and as
to all benefits to be derived from the law, he is as perfectly un-
known to the law as if he were naturally dead. He may indeed
by his own contract take for the benefit of the king; but the law,
which does nothing in vain, will not give him an inheritance or
freehold by act of law ^ for he cannot keep it. 2 Vin. 260. pi. 20.
Col/ing^uood v. Pace (bj. Upon the death of the wile the
estate by the curtesy vests in the husband by :!ict of law, and it

(a) Godb. 323. (6) 1 Ventr. 417.

S CASES IN- THE SUPREME COURT

ir99. must therefore follow that in case of his attainder the law will.

jL^ggggj, not devolve the estate upon him, for it will do a thing perfectly

of idle and vain, as the husband cannot keep it.
Pemoeu- The cases in the books, though to this point they are not nu-
^^^ merous, support the position.

Hicks " ^ f^^uie seised in fee takes baron and has issue, and after

" the husband is attainted in the life of his wife, and after the
" king pardons him; he shall not be tenant by the curtesy on ac-
" count of the issue had before attainder. Otherwise, if the hus-
" band had issue after the pardon." 13 ZT. 7. 17.

This case, the authority of which cannot be questioned, is
conclusive upon the present controversy. Even if the husband
be restored by pardon, yet he cannot be tenant by the curtesy
in virtue of the issue bora before his attainder. After the cor-
ruption of the inheritable blood bfetrween him and his issue, the
law will not devolve upon him the curtesy in consequence of
that issue, although issue born afterwards will produce a new
title upon which the estate may ultimately accrue. The inheri-
tance of the wife is discharged of the first title to the curtesy ;
a fortiori if he is never restored the estate by curtesy can never
be completed, and as he cannot by possibility take it in any way
but by act of law, the king cannot have it, and the wife^s estate
must be discharged of it for ever. We have accordingly the
warrant of subsequent authorities for this conclusion from the
case in the year book. " Persons attainted of treason or felony
" shall not be tenants by the curtesy, for the law intended to
" give the inheritance only to those who were capable of hold-
*' ing it tola vita sua: and in these cases their title shall never
" arise even for the benefit of the king, but the wife's estate
" shall be discharged of it for ever." Bro. tit. Curtesy^ 15.
Staundf. 196. 2 Bac. Abr. 219.

In the case of Shejpeld and Raddiff the attorney general
Coventry agrees that a tenant by the curtesy in the life of the
wife cannot grant the estate by the curtesy to another, " yet,'*
he adtls, " he may forfeit it for treason or felony hii tvay ofdis-
*' charge.''^ There is nothing in this case but the wife's estate that
can be discharged ; for if the forfeiture accrue to the crown, the
incumbrance of the curtesy upon the inheritance of the wife is
in no manner affected, and of course no discharge is produced.
The same doctrine is to be gathered from certain general po-
sitions by Lord Cok-e and Lord Hale which would certainly have

OF PENNSYLVANIA.

been qualified so as to exclude this doctrine had there been a ifgg.
question of its truth. " Baron entitled in right of feme is at- ^"T ~
-' tainted, the king shall hold durhi^ the coverture^ 1 H. H. ^f
F. C. 251. " Forfeiture does not extend to lands in right of the Pember-
" wife, but only during the coverture.'''' 3 List. 19. And as in ton
neither instance is it mentioned whether issue was before or af- j.ij~L.e
ter attainder it may be concluded that it is not material, and
that the king can hold in either case during coverture only.

Finally. The act of assembly does not enlarge the objects oi
forfeiture to such a degree as to embrace this kind of interest.
It is a mere condition upon the performance of which the
estate will arise, but which is not forfeited on attainder by the
general words of the law. 3 Co. 2, 3. 13 Vin.4>41.pl. 14. 3 Inst.
19. The forfeiture is however confined to those rights and
estates which Galloway had on the 4th day of July 1 776, or at
anytime afterwards, according' to the respective estates or inter-
ests,- at the time of attainder his estate was not complete, and
by the attainder the possibility of its compktion was gone, and
notlnng could afterwards arise.

For the defendant. Upon general principles a person attaint-
ed of treason forfeits all his lands and tenements of inheritance
whether fee simple or fee tail ; all his rights of entry on lands
or tenements which he had at the time of the offence committed
or at any time afterwards, and also the profits of all lands and
tenements Avhich he had in his own right for life or years so
long as such interest shall subsist. 4 Bl. Com. 374. 2 IVoodcson,
504.

Before issue bom, the interest of Galloxuay was it is true a
mere possibility; but instantly upon the birth of issue he began
to have a '■'■ permanent interest in the land;" and both the rights
and duties which attend upon that interest shew him to possess
an estate for life, not to ar'tse upon the death of the wife before
him, but subject to be defeated by the happening of his death
before hers. He is entitled to do homage alone for the wife's
lands, which he cannot do while nurcl)' seised of tlie fee in her
right; and the reason assigned l)y Lord Coke is " because he by
*' having of issue is entitled to an estate for term of his own
" life in his own right, and yet is seised in fee in right of his
*' wife, so as he is not bare tenant for life." Co. Litt. 67. a. It
is impossible for words more explicitly to convey the idea that

a A CASES IN THE SUPREME COURT

1799. ^y ^^^^ birth of issue the husband becomes tenant for life, and

— :; that his interest is not limited to a mere title to have such an

Qf estate upon a future contingency. Moreover he becomes one of

Pember- the pares ciiria:^ and tenant to the lord; and in the language ol

■*^'* Bhickstone^ the estate is so vested in him, that although it is

« ^ ' conferred for the maintenance of the heir, it is not suffered to

HiCKS. 1 r 1 • f

determine by the subsequent death of the mfant, or his commg
of age. 2 BL Com. 126. He may do many acts to charge the
lands. Ibid. Avowry shall be made only upon him in the life of
the wife. Co. Litt. 30. a. If he makes a feoffment in fee the
feoffee shall hold during the husband's life. Ibid. And having
an estate vested in him by birth of issue, which from its union
with the seisin in fee entitles him to do homage alone, whereby
he becomes tenant to the lord and bound to do him suit in his
court, with a right moreover to charge the lands in various
ways, and by feoffment to convey a good estate for his own life,
it seems necessarily to follow that he may forfeit it to the king
for treason. For these powers and obligations shew conclusively
that the husband has an estate for life in his own right, and it is
a maxim in law that what a man has in his own right he may
forfeit. Harrises case, (a)

That Galloxvay is civilly dead as to all actions there is no
doubt : but as to all his rights he is completely represented by
the commonwealth. If it were not so, whence comes the right
of the commonwealth to take the profits of the wife*s lands
during coverture? His existence is still contemplated in law for
the beneficial purpose of preserving his rights in the common-
wealth; and although they may continue subject to every de-
feasance that would have operated before attainder, yet here
the estate by the curtesy has escaped the only one to which it
was subject, and it remains an indefeasible estate for life. The
contrary position, against the obvious policy of the law, which
however distressing it may be is nevertheless to be judicially
recognised, would accelerate the descent to the heir, and confer
a bounty on the child for the treason of his father.

The only authorities which oppose this clear result from all
that has been written upon the nature of the husband's estate,
are the 13 H. 7. 17. and the admission of Coventry while at-
torney general.

ia)^Lcon.\\2.

OF PENNSYLVANIA. 9

The first is a mere dictum by Kehle; and whether at that time 1799.
a judge is not known. It does not appear in the year book what ^ ^

was the question under consideration, nor whether there were ot
any parties iiefore the court. It could not have been a question Pember-
similar to this, for by a reference to Noy 159. we find it to have *^^
turned upon the corruption of blood, and whether upon the fa- Hrc'K<;
ther's attainder, the sister might be heir to the brother of the
mother's estate. If the pardon contained words of restitution the
point might have been settled in conformity with Ktble's opi-
nion without bearing in the least upon the question now before
the court. This case therefore is worthy of little consideration.

The admission by Coventrij has still less weight. It was not
the point adjudged; and he cites as his authority the above case
o{ \Z H. 7. 17. which contains nothing to his purpose. There is
not a syllable in it of a forfeiture dy zva/j of discharge; andjin-
deed it is in itself an expression so absurd that it is not probable
he could have found an authority for it any where.

The quotation from Bacoi^s Abridgment^ and the senti-
ments of elementary writers are all referable to this dictum and
admission; and the present case stands therefore upon its own
peculiar footing; the clear estate of the husliand, and the sweep-
ing forfeiture to the commonwealth of every estate which Gal-
loivay had on the 4th July 1770., or at anytime afterwards.

If however a doubt can arise upon the authorities which ap-
ply to forfeitures in E/iifiand, the comprehensive terms of the
act of Assembly must put them to rest; for li Gcdbxvay had an
estate of any nature or kind soever in the premises; if he was
in any way interested in or entitled unto the lands, his estate, his
interest and his title are forfeited to the commonwealth and
the plaintiff cannot recover.

Cur. adv. vuU.

On the 23d December 1799 the Judges delivered their
opinions. But M'-Kian., who presided at the argument as chief
justice, was not at this time on the bench, having been chosen
governor of the commonwealth \\iOctober 1799.

Shippf.n C. J. The question to be decitled in this case is
whether the curtesy estate of the husband in ihr lands of the
wife is forfeited to the commonwealth for the life of the hus-
band by an attainder for treason committed i)v him in her lifr
time and after issue bom.

Vol. I. li

10 CASES IN THK SUPREME COURT

1799. In tvcry (Icfmiiion of an estate by curtesy, the death of the

wife is an essential ingredient to complete the estate in the

" of husband; before that event, and even after issue born, there is
Pember- but a possibility that such an estate may vest, but it does notac-
''■"N tualiy vest till the contingency happens.
Ti ^ ■ The husband's estate during her life is of a different and su-

perior kind; it is an estate of inheritance \nher right. Upon her
death that estate ceases, and the estate by curtesy vests. A
feoffment in fee made by him in her life time will be no forfeit-
ure of his future estate for life; but the feoffee shall hold the
estate during the life of the husband against the hcir^ which he
could not do if the estate for life had vested, because in that case
it would have been forfeited, and have fallen into the inherit-
ance. Co, Litt. 30. a.

If then the curtesy estate does not vest in the husband before
the death of the wife, does not his previous attainder for trea-
son effectually prevent its ever vesting at all? There is no doubt,
but an attainted person or an alien may contract for and pur-
chase an estate so as to enable him to take it although not for
his own benefit, vet for the benefit of the commonwealth; but
there is an established distinction between an estate's coming to
such person by contract and its devolving to him by act or g-ift
in knv: in the latter case no title can be derived to the alien or
attainted person even for the benefit of the crown.

Lord Hale in his ai'gument in the case of CoUingwood and
Face in Ventr. 417. states the law to be that an alien or
attainted person cannot on that principle take by descent, cur-
tesy^ or dower, for the benefit of the crown ; and in 2 Bac. Abr.
219. it is said the title of the husband to the curtesy shall never
arise, but the wife's estate shall be discharged of it forever.

In 3 In.st. 19. Lord Coke^ treating of forfeiture for treason,
says it extends not to lands in right of a wife, but only during
coverture. Lord Halc\s doctrine is to the same effect in 1 H.
H. P. C. 251. In the case of Lord Sheffield and RadcliJ^ Godb.
323. it is acknowledged by lord keeper Coventry that the hus-
band, in the life of liis wife, cannot grant his curtesy, and that
his forfeiture is a discharge of it. This word discharged evi-
dently means that the estate shall go to the heir, discharged of
the curtesy estate, 2 Bac. Abr. 219.; the reason of which is, as
I take it, that by his attainder the inheritable blood between
i>im and the issue is destroyed, and he stands in the same con-

OF PENNSYLVANIA. ' 11

dition, as it" he had no issue by his wife; for if after attainder 1799.
he had been pardoned and had *?//'5'<'5'?/r/2f issue, he would be L^^^see"
tenant by the curtesy. of

It has been said at the bar that the cases referring to the yeai* Pember-
book, 13 H.7.\7. are not warranted bvthe year book, and that ^^^
the particulars of that case are not enumerated, and that it does Hxcks.
not appear whether Keble was a judge or not. To this I think it
may be fairly answered, that whatever may have been the origi-
nal of this ancient doctrine, or the objections to it, the doctrine
itself has been so repeatedly recognised in our law books, and
so uniformly brought down in all the abridgments of the law,
that it seems to have become a rule of property, and not at this
time of day to be impugned by any objections to the original
authority.

The most plausible reason urged in favour of the forfeiture
is, that in Co. Litt. 30. a, it is said that where a man after
having inheritable issue conveys his wife's estate in fee, the
Icoffee shall hold after the wife's death, against the heir^
during the husband's life; and it is inferred that whatever a man
may grant he may forfeit. But the estate conveyed in that case
was not the curtesy estate^ for that had not vested; if it had it
would have been forfeited to the heir by the feoffment in fee;
but ^fce simple estate in right of the wife; and the husband was
esto])ped from claiming against the feoffee his life estate accru-
ing afterwards; and as to the heir the curtesy haying afterwards
vested by the death of the wife it was immaterial to him whe-
ther the right was in tlie husband or in his grantee; he must
wait till the death of the husband. And when it is considered
that in the case cited there was nothing to prevent the vesting
of the curtesy, after the death of the wife, whereas in the present
case there arose an aljsolute bar to its vesting by the attainder
of the husl)and, there can be no proper application ol that case to
the present. Besides, it is by no means a general rule that by
attainder a man \\'\\\ forf'U as much as he may tyrant; for in a
case not very dissimilar to this in principle, if issue in tail, in
the life of his father, is attaint of treason and dies, it is no for-
feiture of the estate tail; yet if he had levied a fine in his father's
life it would have been a bar to his issu:. (iodb. 31G. cites
3 Kcp. 50. Sir George JhowrCs case, and abridged in 13 Vin^
t47.

12 CASES IN THE SUFHEMK COURT

17'99. It is however urged on the part of the defendant that the

J words of our act of Assembly are of larger extent and compre-

of hend more subjects of forfeiture than either the common law or

Pr-MnEu- die statutes of Englajid do embrace; to this a proper answer was

^'^^ given at the bar, namelv, that the act of Assembly confines the for-

HiCKS. ti^iture to those rights and estates which they had on the 4th ot

Jiily 1776 or at any time afterwards, in their own rights or to

their use, according' to their respective estates or interests ;hvit if

by law and by the attainder the curtesy estate was extinguished,

no estate or interest remained to be forfeited.

Forfeitures in general, so far as they relate to the depriving
the innocent of their property, can only be justified by reasons
of public policy; and I should be averse to visiting the sins of
the father upon the children, unless warranted by express au-
thorities, which appear to me to be wanting in the present case.
I am therefore, upon the whole, of opinion that both on prin-
ciple and authority, the curtesy estate of Joseph Galloway was
not forfeited to the commonwealth by his attainder tor trea-
son; but that by such attainder that estate could never take
place, and the inheritance was discharged of it foreverj and that
consequently the heir of the wife should recover.

Yeates J. Whether the premises in question were forfeited
during the life of Joseph Galbwaif by his having issue previous
to his attainder, which happened before the decease of his wife,
depends on the words of the law of 6th March 1778.

What then was the estate of Joseph Galloway in these lands,
in the life of his wife, after the birth of their daughter?

It has been contended by the defendant^ that though the estate
of the husband be not consummate until the death of the wife, yet
that it hath such a beginning after issue had in the life of the
wife as is respected in law lor divers purposes: First, after issue
had he should do homage alone and become tenant to the lord
by the old feudal law. Secondly, if after issue the husband ma-
keth a feoffment in fee and the wife dieth, the feoffee shall hold
it during the life of the husband, and the heir of the wife shall
not during his life recover it in a" surcui in vita;^^ for it would
not be a forfeiture, since the estate at the time of the feoffment
was an estate of tenancy by the curtesy initiate though not con-
swnmate. Co. Litt. 30. a. Ley. 9, 10. It is therefore insisted that
Galloway in this case had more than an estate for life in these

OF PENNSYLVANIA. 13

lands; and that as he could grant them for the term of his own 1799.
life, he could forfeit his interest therein for the same term. The j^^gg^g
husband bv having issue is seised in his own right for life, and of
vet is seised in fee in right of his wife, and so as he is not a bare Pember-
tenant for life; he therefore shall after issue receive and do horn- ^°^
age alone during the life of the wife. Co. Litt. 67. a. As soon Hicks.
as a child was born the father began to have th permanent inte-
rest in the lands, which was not liable to be determined by the
subsequent death or coming of age of the infant. 2 Bl. Com.
127. He might do many acts to charge the lands. lb. 128. So
in Ploxvden 264. it is said by Weston J. that if a woman lakes
husband and has issue and lands descend to her and the husband
enters he is entitled to be tenant by the curtesy.

I frankly confess my sentiments on this subject have under-
gone a material change since the last argument. The definition
of curtesy by Littleton sec. 35. is that it takes place on the death
of the wife, the husband surviving her. So in 2 Bl. Com. 126. it is
said the husband shall, on the death of the rvife^ hold the lands
for his life as tenant by the curtesy of England; and many other
books pursue the same expressions. According to Lord Coke
the estate is not consummate until her decease. Co. Litt. 29. a.
Such then is the legal as well as vulgar acceptation of the terms
estate by the curtesy^ that it does not completely vest until the
wife's death. 2 Buc. Abr. 219. Doc. and Stud. dial. 2. c. 4.fo/.
115.

The reason why under the feudal system the husband shall
receive and do homage alone, during his wile's life, after issue
had, is his having a seisin in fee in right of his wife; for as a
mere tenant for life he sliall not do homage. Litt. sec. 90. And
this seems the true ground wh\' ihe leoiTment of the husband,
after a child born, shall not Ije a Ibrleiluri-: Win future Interest
and title to be tenant by the curtes\' is involved and passes by it
to the feoffee; though not to such purpose as to make him tenant
by the curtesy which none but the husband himself can he 2
Bac. Abr. 219. If he was merely tenant for life, his feoffment
in fee would clearlv be a forfeiture.

The husband may have n permanent interest in the land on
the birth ot a child, for certain purposes, I)ut not for others.
It may tiot be affected by any event happening to the child ; l)Ut
his inception of estate derived from such child mav be extin

14. CASKS IN THE SUPREME COURT

1 79'iK guishccl by u subsequent civil disability, to take the land on tht
termination of the life of his wife.

of In the English edition of Ploxvdcn (254) so much applauded

Pemj^kr- by Hargravc in his note on Co. Lift. 23. a. it is said in the mar-
^'■^^ ginal note of the case nbove cited, that though the title of the
Hicks husband is initiate by the seisin of the wife, it is not consum-
mate nor begins to hav'c any ej/ect until her death.

Nor is it universally true that because an interest may be
gi-anted, it may therefore be forfeited. This consequence is
denied bv Lord Coke arguendo in Venable's and Harrises case,
2 Leon. 126. He says " a man seised in right of his wife may
" grant but not forfeit. The husband may grant a term for years,
" which he hath in right of his wife, but he cannot forfeit it.
" A woman inheritrix taketh a husband, who afterwards is
" attainted of felony; the king pardons him; they have issue; —
" the husband shall be tenant by the curtesy; which proveth that
" the king hath not the freehold by that attainder." Pop/iam,
Avho argued for the crown in the same case, concurs in denying
the same consequence. 4 Leon. 112. So also Croie in Lord
SheJ^eld and J^adcliJ/''s cast-. Godb. 316.

The plaintiff's counsel have insisted that the case before the
court has already received a determination, and Is not now open
to he argued on general principles. They rely on the year book
13 if. 7. 17. which runs thus : " A man marries a feme inheri-
" trix and has issue; he commits felony of which lie is attainted;
••' the king pardons him ; Kebk said that he should not be te-
" nant by the curtesy by reason of the issue had before the
" attainder ; but if he had other issue afterwards, he shall."
It must I conceive be admitted, if these positions are received
as settled law, and of course a rule of property, that they
establish the plaintiff's claim.

I find from Dugdale's Chronica Series 75. contained in his
Origines Jiiridicales^ that Keblc was called as a sergeant in the
first year of Hen. 7. and in the same year book 14 H. 7. 7. in
the 2d line, he is styled one of the king's sergeants. The dic-
tums of Kcblc in 16 H. 7. 8. are cited with approbation in
many books ; as F. N. B. 84 A. 98 B. 456 /'. The assertions
of eminent counsel, uncontradicted at the time, or by subse-
quent cases, have always been received as evidence of the law;
such dlctums are often repeated in the year books, and in
the reports of Plorvdcn and Coke particularly. Ohjn C. J. in

OF PENNSYLVANIA. i6

Poster undl^amsai/^ 2 Sid. 150. expresses himself thus, ^' Our 1799.
" vtrv case was put hv Stephens^ the defendants' counsel, y
" /?ex against Boriaton and Adams., Noij 159. and not denied of
*' by the court; though Fleming-., who argued on the other Pembeu-
" side, denied it." Both the counsel who argued in Xoy 159. ^°^
168. admit the authority of the case in question; ^n<X Coven- Wn^-^^,
try attorney general, in 2 Roll. Rep. 340. Lord Sheffield and
Raddiff'., and Godb. 323. S. C. also admits it. It is moreover
cited in Co. Litt. 391. b. in inargine; by Allen in Foster v.
Ramsay., 1 Keb. 217.; and by Lord C. J. Bridgman id. 701.
S. C. i i is so much relied on by sergeant Haxvkins in his 2d
part of Picas of the Croxvn., c. 49. sec. 49. p. 4'57. that he
reasons from it as a settled case, against even Lord Coke''s
opinion. The case is likewise recognised in his P. C. 196. and
is there said to accord with the opinion of Justice Fitzherbert,-
by Broke^ Tit. Tenant by the Curtesy pi. 15.; by Viner 7 vol.
162.pl. 4. and 4 vol. 273. pi. 20.; and by Lord Chief Bra'on
Comyns in the 3d volume of his Digest 244. In Ter?ns de la
Z<"i/, first published in 1563, sub voces Curtcsie of England.,
the doctrine is set forth at large, but no authority is cited,
though the words in the year book aix' used.

The assertions of sergeant Keble are also warranted by ana^
logy drawn from other books. Thus in Perkins sec. 387. if the
husband commits treason, felony, or murder, and is attainted,
this shall oust the wife of dower; but if after the attainder the
husband purchases his charter of pardon, then of all such estates
of inheritance of which the husband is sejsed alter his pardon,
which the issue, that he may by possibility have by his wife,
may inherit by the common law, she shall have dower Sec; for
notwithstanding she was liis wife at the time of attainder, yet
the issue which the husband may have bv lier after his pardon,
is inheritable. If a son and heir l)e outlawed in the time of his
father, and afterwards in the life of his father procures his
pardon, and then his father dies, he shall not have his lands b}-
descent, but the lord of whom they are held shall have them b)
escheat. Fitz. Disccnt. 17. J'rin. 13 £. 1. So il the rldesi
son be attainted of felony and obtains a pardon in the life ol
his fatlier, who afterwards dies, the land shall escheat, because
the j)ardon cannot avoid the corruption of blood. Jiro. Disccnt.
pi. 44. HE. 1. Pardon restores not to blood (without an act oJ
parliament) except as to issue begotten afterwards. Co. Lift.

Hicks

16 CASES m THE SUPREME COURT

1799. 8- "• 391. l>. 392. a. S. P. C. 195. B. 3 Inst. 233. W. Jo. 34.
~ 1 //. H. P. C. 358. A person attainted, though he hath a par-

oC don, cannot chiim by descent. Cro. Car. A77. Bacoii's use of the
Pember- Laiv 140, 1. Thus, it appears to me, that the authority of the
TON case in 13 ^. 7. 17. is fully vindicated, as well from the un-
contradicted arguments of counsel and of judges, and its adop-
tion by elementary writers of the first reputation, as from the
general principles and analogy of the law. To adopt the lan-
guage of Judge Morcton in 1 Mod. 40. as to another resolution
( Harding V. JFarner, Latch 24.) " The case has walked through
*' all the courts of Westminster Hall undisturbed."

But the present case rests not solely on this authority: it is
fully settled that tenants by the curtesy and in dower come in
by descent, merely by act of law. Co. Litt. 18. b. Now in all
cases (except intails) attainder of treason or felony corrupts the
blood, upwards and downwards, so that no person that must
make his derivation by descent to or through the party at-
tainted, can inherit. Co. Litt. 8. a. 84. b. 392. a. 1 H. H. P. C. 356.
358. Dij. 274. And though an alien may take by purchase by
his own contract, that which he cannot retain against the king,
yet he is not enabled to take by act in law; for the law which
does nothing in vain, will not give an inheritance or freehold by
act in law where it cannot be kept; and therefore the law will
not give descent, curtesy, dower, guardianship. And in respect
of this incapacity he does resemble a person attainted, with this
difference, that the latter is a person whom the law takes notice
of, and therefore the eldest son attainted surviving the father
shall impede the descent to the younger son. Collingwood \.
Pace^ 1 Ve7itr. 417. per Lord Chief Baron Hale. S. C. and S. P.
1 Keb. 672. S. P. Stra. 332. by counsel arguendo.

Here then as to Joseph Galloxvny the vinculum of descent
was destroyed by his political offence. To use the expressions
of Mr. 7'ork in his considerations on the law of forfeiture
(p. 88.): " Bound as he was to the community by nature, moral
" duty, and experience, he disclaimed the law and was dis-
" claimed by it; by his own voluntary act, he has shewn himself
" an alien in affection.''^ He therefore shall not be admitted to
the legal right of descent; his title shall never arise even for the
benefit of the commonwealth; and the estate of his late wife
shall be dischareed forever of his claim.

OF PENNSYLVANIA. 17

This was the reasoning ol" CoftVi/rz/, attorney general, who 1799.
would not readily have given up the rights of the crown, in Lessee
Lord Sheffield and Rackliff. The husband by attainder of treason of
or felony, forfeits his right as tenant by the curtesy by way of Pember-
di.Hcharg-e; or as the same case is reported in 2 RoL Rep. 340. ^°^
if the husband commits felony or treason, he forfeits the dower jJicKS.
of his wife, and yet this is a thing in action, and goes in dis-
charge or surrender. 13 //. 7. 17. A man takes a woman in-
heritrix to wife, and has issue and commits felony, he shall for-
feit his tenancy by the curtesy.

It appears therefore that Joseph Galloxvay was legally inca-
pable of taking the premises in question after the decease of his
wife, by right oi descent as contradistinguished from purchase.
His claim was intercepted by his attainder, and could not take
eft'ect by his civil death any mere than if he had paid the com-
mon debt of nature. But the case is otherwise as to his daugh-
ter; for where a person attainted hath issue by a woman seised
of lands of inheritance, such issue may inherit to the mother^
though he or she never had any inheritable blood from the
father. 2 Hcnvk. 457. and the cases there cited. So children
born after the father's attainder may be heirs to each other on
the principle of Collinf^wood v. Pace^ that the children of an
alien mav be heirs as between themselves though not as to the
father. Harcf. Co. Lift. 8. a. note 5. 12. a. note 7. Consequently
if the father had no capacity to take the lands the daughter
would become entitled thereto as heir of the mother, though
in the life of the father.

A few cases yet remain to be cited which I soon shall pass
over. Where the husband commits treason the common law
gives ?i forfeiture of the inheritance of the wife only during the
coverture. It was otherwise by stat. 26 // 8. c. 13. as to trea.
son; but it is now remedied by 5 and6. Ed. 6. c. 11. fenk. 287.
Staundf. 187. Vide Co. Lilt. 351. a. Pollcxf 51. Parsons \.
Pearse et al. As to lands of inheritance if the liusband be seised
in right of his wife, and is attainted of treason, the king hath the
freehold during the coverture. 1 H. II. P. C 251. And Lord
Coke asserts the same doctrine in his 2>d Inst. 19.

On the whole I am of opinion that judgment be entered for
the plaintiff.

Vol.. r. C

18 CASKS IX Tin: suprkmk court

1799. Smitu J. Whether the law inflicting the punishment of

""Lessee f'orfeiture of property on the commission of high treason be
of founded in mercy or in rigorous and austere justice, can have
pEMBEU- no weight in determining the question before us. From one
^^ point of view the huv of forfeiture for high treason may seem
Hicks. ^^^^^^ ^nd cruel; the innocent and helpless part of a family suf-
fer for the crime of the head of it over whom they have no con-
trol. Were it possible for human legislators to enact perfect
laws, it would be the wish of every benevolent mind to have
this law altered in its effects upon such persons; but inexpe-
rience must unite with benevolence in the minds of those who
will propose further alterations than have been made in the
constitution of the United States in this respect, ar^ic/e 3. sec. 3.
and the laws of this state. 1 State Lazvs 846.

If the law of forfeiture for treason were altered, so as that
such parts of a familv might suffer no punishment, such altera-
tion would indeed be merciful to such individuals; but the
general efl^ect would be extensive cruelty to society at large,
and would frequently end in its dissolution : as self-preserva-
tion is the first law of nature, so it is likewise the first law of
society.

In every nation, under every government, there are many
men of gloomy discontented minds, of vehement spirits, of
disappointed or perverted ambition, of desperate fortunes. The
minds of such men are restless, ever on the rack to gratify their
malignity or their ambition, or to repair their shattered for-
tunes. So (ar as they consider themselves, they are desperate ;
the peace, welfare, or happiness, even the existence of the go-
vernment which protects them can have no influence in re-
straining such men from the most desperate measures to accom-
plish their purposes. The only human consideration which can
withhold them from endangering the nation, is their attach-
ment to their wives and children, which is frequently implant-
ed, for wise purposes, unusually strong in the minds of such
men by the all wise Author of our being.

From this point of view the law of forfeiture is merciful to
mankind; it may sometimes be productive of partial ill, but its
general eflfect will be universal good. Besides, property is cre-
ated and preserved by government and laws; consequently
every govrrnment may regulate it in such a manner as the soci-
ety deems most conducive to the good of the whole nation.

OF PENNSYLVANIA. 19

By some it may be said that the case of J. Galloway is dif- 1799.
ferent from that of a subject under an established government ""7 ' —

who commits treason. I answer that in every nation the will of of
the majority must govern, to which every one of the minority Pember-
must submit as soon as the society becomes a nation. From the "^^^
time independence was declared, it became the duty of every tt
citizen of the United States not only to submit to it, but to as-
sist in its establishment. In trials for high treason immediately
after the revolution in England, it was never alleged that the
case of anv of the prisoners was different from the case of a sub-
ject under an ancient government, who has committed treason.
^Moreover, could it have an)' weight, which I am clear it has
not, y. Galloxvay assisted in those measures, which, according
to the common course of events led to that independence,
which he afterwards laboured to destroy.

The question tlierefore is not whether the law of forfeiture
for high treason be humane or rigorous; but the question is
what is the law ? On this question it is our duty and we are
competent to decide. The law being penal, it is our ducy to con-
strue it not to extend beyond the letter of it.

Any lawyer who has never had occasion to examine the
point now before us, indeed any person, though not a lawyer,
who is acquainted with the history of England, and reflects how
many trials there have been for high treason, would, on the case,
being stated, be ready to take it for granted that it had been
long ago and often decided; and I confess that I was struck
with surprise when on examination after the case was first sta-
ted, I could not find one case in the books m which it has even
come before the court.

It seems to me that the principal difficulty in the case before
us arises from the inaccuracy of the writers on the subject in
not distinguishing whether the baron committing treason had or
had not had issue at the time the treason was committed; and
in not adverting to the alteration made since 13 H. 7. 17. b)
the statutes 26 and 33 N. 8.

" A man takes wife an inheritrix — has issue — commits felo-
** ny of which he is attainted; the king pardons him. Keble said
" he shall not be tenant by the curtesy by reason of the issue
" before the attainder, but if he have issue afterwards, he shall."
13 //. 7. 17. This position is the foundation of the plaintiff's
claim; and although it docs not appear what case or if any case

20 CASES IN THE SUPREME COURT

1 799. "^^'•'^s then before the court, and therefore it may be' inferred that
Lessee ^^is is a mere ohiter dictum of Kehle^ yet did the principle of
of it stand unopposed, although it has received no judicial con-
Pemher- firmation, that princijile would have weight with me in favour
^^^ of the plaintilf; it being well known to every lawyer that very
Hicks. ^•^^Y cases Avhich have been since from time to time recog-
nised as law, derive their original authority from similar dicta
in the year books. But let us consider that before issue " If
" baron and feme be seised in fee in a seignorie m the right
" "^/^y^'"^' baron shall not receive homage alone; but he and
*' feme together: but if baron in that case hath issue by feme
" then he shall receive homage alone during the life of feme.
" And the reason is because he bi/ having- issue is entitled to an
" estate for the term of his orun life in his own right, and yet
*' is seised in fee in right of his wife; so as he is not a bare ten-
" ant for life. But if feme die then he hath only but an estate for
" life, and then he cannot receive homage." Co. Litt. 67. a.
So " if feme seised of lands in fee simple or fee tail by homage,
" taketh baron and hath issue^ then baron in life time of feme
" shall do homage because he hath title to have the tenements
" by th'- curtesy of England if he surviveth feme, and also he
" holdeth in right of feme." Litt. sec. 90. '■'■ After issue he shall
" do homage alone and is become tenant to the lord, and the
" avoxvry shall be made on baron only, during the life of feme."
Co. Litt. oO. a. ; and " as soon as a child is born the father
*' begins to have a pervianent interest in the lands; and this
" estate being once vested in him is not liable to be defeated by
" the subsequent death or coming of age of the infant." 2. Bl.
Com. 127. Again; " If a man seised of lands in fee hath issue
" a daughter who takes baron and hath issue^ the father dies,
" baron enters, he shall be tenant by the curtesy albeit -the issue
" was had before feme was seised. And so it is although the
" issue had died in the life time of her father before the descent
" of the land." Co. Litt. 29. b. So " if a woman tenant in tail
*•• general takes baron and hath issue, which issue dieth, and
" feme dieth without any other issue, yet baron shall be tenant
" by the curtesy, albeit the estate tail be determined." Co. Litt.
30. a. And " if after issue, baron makes a feoft'ment in fee, and
" feme dieth, the feoffee shall hold during the life of baron,
" and the heir of feme shall not during his life recover it
*' in a sur cut in vita.''^ lb. F. N. B. 194. Why? Not because

OF PENNSYLVANIA. 21

he has /ess than an estate for life, for such feofFment would be 1799.

a forfeiture of even an estate for life; but because he has more, \

' Lessee

he is also seised of the fee in right of feme. of

From these various authorities it follows: 1. That by having PembeR-
issue the estate is vested \n baron for life. 2. That although the ^^^
issue die before feme is seised, yet the instant she becomes ij.pkc
afterwards seised, baron becomes entitled to the estate for the
term of his own life in his own right. 3. Nay, so absolutely and
indcfeasibly docs the estate become vested in baron for life by
having issue, that the determination of an estate tail by the death
of feme, the last tenant in tail, does not affect baron's right. It
is impossible even to suppose a stronger instance to demon-
strate that (fter issue no circumstance can make the least alter-
ation in baron's vested right to her estate for life. This gives a
iull answer to 1 Ventr. 417. that an alien or attainted person
cannot take by any act in law, because here he had taken; the
estate had by having issue become vested '\\\ him during his life.

In Godb. 323. Coventry attorney general says that " Tenant
'^ by the curtesy, during the life of feme cannot convey it, but he
may forfeit it by way of discharge;" and he cites 13 i^. 7. 17.
but the only words on the subject in 13 N. 7. 17. are those
which I have literally translated and before stated. In the first
point the attorney general is contradicted by Co. Litt. 30. a.
and the other was not then law.

The same doctrine is laid down in 2 Bac. 219. where it is
said that persons attainted of treason or felony &c. shall not be
tenants by the curtes\'; that their title shall never arise even for
the benefit of the king, but that the estate of the wife shall be
discharged of it forever. The authorities which Bacon cites are
Bro. Tit. Curtesy pi. 15. p. 250. which is a transcript of 13 ^.
7. 17. there quoted. Staundf. 19G. is the same, and he quotes
the same; and Godb. 323. He also cites Co. Litt. 291. a. 3 Inst.
43. as authorities in analogous cases; and in a note to it he
states the worfls of Keble. for which he cites 7 Co. 25. bv which
I am confirmed in my want of confidence in the accuracy of
the best abridgments, as authorities, as I observe that in neither
of those pages is the doctrme laid down, which he states.

So that all the authorities respecting the discharge of ihi
wife's estate rest on the dictum of Ktblc. In Baco7i it is said
the title of tenant by the curtesy shull never arise. This ex-
]iression shows that he is laying down the law where a man com-

22 CASES IN THE SUPREME COURT

ir99. mits treason before issue ; because by having issue the estate
Lesse~^''^* '^'^^'^^n and is vested in the husband for the term of his own
of life ; it has therefore become absolute and indefeasible during
Pember- his life. " The wife's estate shall be discharged of it forever,"
From what time is this discharge to operate I From the time of
Hicks. ^'^^ treason, or from the death of the wife? The expression is
so general, that the attainder is to have no elfect upon the estate
of the wife. If the dictum of Keble 13 H. 7» 17. were law, this
Would be the necessary consequence. For " a pardon shidl not
*' devest any interest either in lands or goods vested in the sub-
"jectj neither shall it, without express words of restitution,
" even devest any title from the king." 3 Mod. 101. " If the
" king present to a benefice on being entitled to it by simo-
" niacal contract, his presentee shall not be removed although
" the simony is pardoned." 2 Mod. 52. 2 Hawk. 390. On
the principle therefore of IZ H. 7. 17. the executors of Mrs.
Galloxvay may recover the mesne profits from the time the
estate was taken possession of by the commonwealth, if the de-
fendant has been in possession so longj nay, she herself (as he
became dead in law) might have recovered it by ejectment.
But that this is not the construction, that this dictum cannot be
law at this day, is clear from two most respectable authorities.
For Lord Hale 1 P. C. 251. and Lord Coke in 3 Inst. 19. lay it
down that where "baron is seised z'n right o/"feme of lands of in-
" heritance and is attainted of treason, the king shall hold during
" thecoverture.^^ It is not stated whether issue was had before the
treason or not ; but as the husband, though seised in fee in right
of his wife, yet by having issue is entitled to an estate for term
of his own life i?i his own rights it must be inferred that Lord
Hale and Lord Coke confine their position to the case of treason
committed by baron before issue. Let it not be said that there is
no difference whether the treason be committed before or after
issue as to this purpose: by issue the estate of bai'on in the lands
of inheritance of feme becomes entirely altered; it becomes from
that vi\oxntXiX.vested and permanent for his life. Lord Hale adds,
" and so if tenant for life be attainted of treason the king hath
" the freehold during the life of the party attainted." 1 have re-
peatedly stated that by having issue baron is entitled to an estate
for term of his own life in his own right, (he is become tenant
to the lord, Co. Litt. 30. a.) and therefore if attainted of treason,
the king hath the freehold during his life.

OF PENNSYLVANIA. ^S

Again: If feme tenant in tail takes baron, and he becomes en- 1799.
titled to an estate by the curtesy, which he does by having issue Z
capable of inheriting, not only his wife and he, but he alone may of
make a good tenant to the praecipe to suffer a recovery to bar Pember-
the intail. Cases Talb. 167. Harg. Co. Lift. 326. a. where, and in "^^^
a note to Ca. Talb. said to be a more accurate statement of x-T.dfe
Lord Talbot'' s argument, it is said in general terms, "That baron
" alone may by deed only and without any fine levied by feme
" convey a sufficient freehold to the grantee to make him a
" tenant to the praecipe."

The last but not the least consideration is, " If a man taketh
" feme seised of lands in fee and hath issue, and after feme is
" attainted of felony so as that the issue cannot inherit to her,
" yet he shall be tenant by the curtesy in respect of the issue
" which he had before the felony : but if feme had been attainted
'* before issue, albeit he hath issue afterwards he shall not be
" tenant by the curtesy." Co. Litt. 40. a. Now suppose baron and.
feme both commit treason &c. at the same time after issue, and
are attainted. Baron's vested right to tenancy by the curtesy of
her estate is not forfeited by her attainder. According to the
conclusion deduced from 13 If. 7. 17. her estate is not forfeited
by the attainder of baron, but is discharged J or ever: therefore in
such case it is not forfeited at iUl ; a position which it seems to
me cannot be supported.

I will take another position and consider the subject from a
different point of view. I will lay it down that the point stated
in 13 //. 7. 17. was then the law of the land, and will inquire
whether or not it be even the law of England since 26 H. 8. c.
13. and 33 H. 8. c. 20.; and more particularly whether since the
act of Assembly by which Joseph Galloivay was attainted, and
which must be our guide in forming our judgment upon the
present occasion, the words of Krblc be the law applying to i)cr-
sons attainted by this act of Assembly or not. " By the com-
" mon law all lands of inheritance whereof the offender is seised
" in his own right and also all rights of entry to lands in the
" hands of a wrong doer, arc forfeited to the king upon attain-
" der of high treason." 2 //aivi. 448. 2 Bar. 675. It may there-
fore be inferred that though the husl)and by having issue is enti-
tled to an estate in the lands of the wife for term of his own life
in his own right, yet being seised in fee in right of his wife such
lands arc not forfeited tt> the king bv common law, on tin-

24 CASES IN THK SUPREME COURT

1799. attainder for high treason; but she shall hold them discharged'

Lessee °^ ^^^^ right to tenancy by the curtesy. Lands intailcd were not

of forfeitable at common law or by 25 E. 3. c. 2. on attainder of the

Pember- tenant in tail for high treason, saving only during the life of the

'*"°'* tenant in tail. 3 Iinit. 19. By -^tat. 26 H. 8. c. 13. every per-

HiCKs. ^^^ attainted of high treason " shall forfeit to the king all such

" lands, tenements and hereditaments which he shall have ofanij

" estate of inheritance^ use or possession^ by any tight^ title or

" means.'''' It has been adjudged that b}' force of the words " of

" any estate of inheritance," estates tail are forfeited, because

these words would be void if they did not include estates tail;

for estates in fee simple were forfeited before. 2 Hawk. 452.

2 Bac. 580. Co. Lift. 372. L And by stat. 33 ff. 8. c. 20. " If

" anv person is attainted of high treason by common law or

" statutes; every such attainder by the common law shall be of

'"' as good strength, value, force and effect, as if it had been done

" by authoritv of Parliament. And the king shall have as much

" benefit and advantage by such attainder as well oiuses^ rights^

** entries^ co7iditions, as possessions, reversions, remainders and

" all other things^ as if it had been done and declared by autho-

" ritv of Parliament."

The words of each of these acts of parliament are more exten-
sive than the words of forfeiture by the common law. The
words in the first act have been held to extend to estates tail.
The words in the second act will include tenancy by the curtesy;
for baron by having issue is entitled to an estate for term of his
own life in his own right.

The words of the act of assembly by which foseph Galloxvay
was attainted are still far more extensive than the words of these
statutes. The legislature could not have used more compre-
hensive general words to embrace the subject matter in ques-
tion. It necessarily follows that Joseph Galloxvay forfeited all
his estate and interest in the premises for the term of his own
life. Therefore from either point of view, and especially from
the last, my opinion is that judgment be given for the defendant.

Judgment for Plaintiff.

OF PENNSYLVANIA t:

Myers ^^ffm^^ Uric M. ^^Q^*

THIS was an action of debt on a bond, brougHt in the Com- npcember
mon Pleas of Dmiphin cowiMx lo November term ir92;28ib.
and the plea was payment, with leave to give in evidence a pay- jf ^^^ oanil-
ment under a foreign attachment. slieo in afo-

Upon the trial of the cause before 7'eates and Smith Justices, j^^^^^^ f^,,^
at a Nisi Prius in Octeber 1799, the following facts were in evi-f'''*".'" V^^'ie
dence. A foreign attachment, returnable lo February ttrva. 1790,jJbt attach-
issued at the suit of James Kelly assignee oi Abraham Ebersoll^^^^ witliout
agamst Myers the present plvuntill; by virtue or which the polled so to
amount of a bond owing to Myers but not yet due, was attach-*^" by due
ed in the hands of Urich the obligor. In this attachment no law, and
declaration was filed, and judgment was rendered in the fol- witliout le-

1 • /< «^ 1 1 r r. 7 • 1 qaii'inij ihe

lowing August, On the 18th oi September in the same year stipulation
Urich paid Kelly nearl}' the whole amount attached. A scire'^^'^^^^'^^ ^J'
facias to August term 1791 then issued against the garnishee, s.mhU, it
upon which judgment was rendered in November^ with a stay",'" ""'/j'^-
of execution during six weeks; alter the expiration oi which iVom tlie oi-i
time, liut without execution, the residue of the bond was paid by f^'"^* ^^^^^'
Urich. No security however was found according to the act of
Assembly, 1 St. Laxvs 60. to answer to Myers it within a year
and a day he should disprove or avoid the debt &c.

The plaintiff Mifers proved a good defence to the demand of
Kelly; and it appeared to the jury that by articles of agreement
l)etwcen Myers and Kelly ^ Kelly had covenanted to pay to Ebcr-
soil the very bond upon which he as assignee had brought the
foreign attachment. A verdict was accordingly taken for the
plaintiff subject to the opinion of the court in bank, wliether
such a payment as Urich had proved was a good defence to the
demand of Myers.

Duncan for the plaintiff. The precipitate and voluntary pay-
ment by Urich before execution, or scire facias, or the condi-
tional security being entered, was made in his own wrong. Un-
less the proceedings were regular the garnishee could not have
been compelled to pay; and not being compelled to pay, this
must assume the character of any other voluntary payment to
a third person If we adopted special pleading in its rigour, the

Vol. • D

2^ CASES IN THE SUPREME COURT

1801. defendant Mould be forced to set oat all the prucecdiiT^s
■ , ( , in the attachment, Baker v. Hill (« ; that the act had been

7-. Strictly pursued, .SW/r/JC v. Toung ''/;); that pledges had been
Uricii. found, 1 Brown/. 62. D/jcr 196. pi. 42.; and that execution had
issued upon the judgment, Spink v. Tenant (c^. If this plea
were effectually traversed, the garnishee would be compelled to
pay the money over again; and he is bound to the same proofs
under his plea of payment that would be required under the
special plea. It is essential that the pavment should be drawn
from the garnishee by execution alone; for from the time of the
execution the year and day runs, Lervkner v. Huntley (d); and
if the money be paid before, by so much is the period abridged
within which the defendant may resort to the pledges. The law
is with Myers^ because Urich has no legal defence unless he was
compelled by due process of law to pay Kelly; the equity is iUso
with him, because Myers owed nothing to Kelly^ Kelly was
trusted by Urichj and Urich should support the injury of his
own act.

Ingersoll who was to have argued for the defendant gave up

the cause; and

Per Curiam. The ground of the defence is that Urich was
compelled by due course of law to pay the amount of the bond
to the plaintiff in the foreign attachment; but the fact is that he
was not compelled by due course of law; for he could not be
legally compelled unless the proceedings against him were
regular, and the security required by the act of Assembly wa.s

duly entered.

Judgment for Plaintiff.

{a) 3 Kcb. 62r. (c) 1 Koll. Rep. 105.

(h) LutK. 985. ((/) Cro. Eliz- 713

OF PENNSYLVANIA. 27

1801.
Jordan against Meredith.

Monday,
' Dccciiibcr

A SUFFICIENT number of special jurors not appearing gsu,.
in this cause, a tales was awarded; whereupon the trial If a juror is

,. r 1 1 • -ir A struck from

proceeded, and the jurv tound a verdict tor the plaintilt. A mo- ^i^g special

tion for a new trial was then made by M Levi,' for the defendant,.! ,»"'>• list, and

n t • 'i 1 1 I 1 tl>«n sworn

upon the ground that o;ie of the jurors who had been struck .^j, ^ ^alcs-

from the special iurv list by the defendant was sworn as a man with the
talesman and tried the cause; which circumstance he argued „f the party
was a sufficient ground for a new trial, although the verdict ^\lio struck
might in other respects be satisfactory to the court. He cited cannot on
Parker v. Thornton (a), and Himgate v. Hamond (b). But ^Jj-^J'^i'tJIc

« verdict.

The Court being satisfied that the error was known to the

defendant at the time it was committed, he himself having

struck the juryman from the list, thought the objection came

too late, and refused a^KuIe.

(a) 2 Ld. Bay. 1410. (/•) Cro. Eliz. 188.

Levy against The PrcsidtMit, Directors and Compaiiy 180^

of the Bunk of the United States. Monday,

May 3d.

HIS cause was tried at Nisi Prius after March term 1 802, J'^f^^^^^''^^"''

hcior it S hi f)f)en C. J. and^////V/i J. when the following facts ca.sh, nuule
, . ■ , b\ a Uu:il; in

ippeared m evidence. tlu- private

Josrjjh Thomas passed awa}- to the plaintiil" a check upon hank b.ok of
;iie IJank of the Unilt d States 'for S 2G(J0, dated the 31st yw/i^^';j';,|;';J[|.^,'^'i^
1798, and purporting to be drawn by Charles Wharton ini)aymont;
favour of Joseph Thomas or bearer. On the 3d of -^".?'"'^'^ check is a
1798, between eleven and one o'clock, the check was presented I'-riicm. of
at Bank !)y Mr. J.evifs clerk ; and was entered by the receiving |,„i^|^.,. ^^.^^
teller to Mr. Lcvifs credit in his bank l)ook as cash. It was also i.i^norant. the
entered on the scratchc r of the Bank, and in the cash book, and ^,j .,,„., ji^^,

I'iss. Jt sieiii:
that the acceptor of a. forpcd 1)111 is hound to pay it, not upon the principle that his
acceptance has i^ivcn a en (lit lo thf hill, Imt liccansc it is hia <hity to know the draw* r'.-s
han*l writinp whii h he is I'rt-chidi d from disputing'-. If a fort^cd rlicck is credilifl as c.isli
in the holder's bank book, and :itier«iirds upon boin^ infornieil of the furq;eiy, and under
1 mistake of his rij^lit:; he ajjre'js that if the clicck i'. rvally a for^^rry it \i nodcpi'slt, lie is

■t bound by the agrccmrnt.

28 CASES IN THE SUPREME COURT

1802. "^^'^s credited to Mr. Levy and charged to Charles Wharton^ ac-
"^ cording to the usage of that institution. On examining the

T. cliecks of that day between three and four o'clock in the after-
Bank U. S.noon as was customarv, this check was discovered to be a for-
gery; the credit to Mr. Levy in the cash book of the Bank, and
the charge to Mr. Wharton were respectively struck out, and
the entrv in the scratcher left as it was. This was proved to be
the usual mode of coiTecting such mistakes in the Bank. As
soon as the discovery Avas made, one of the clerks of the Bank
was sent to the plaintiff to request his own check in lieu oi the
other. The plainiiif asked the reason of this request, and was
told bv the clerk that Charles Wharton had not money enough
in Bank, although the fact was otherwise. The plaintiff replied
" That is nothing to me." The clerk then told him the check
was a forgery. The plaintiff was much surprised aud said he
would " take till the next day to consider Of giving another
" check in lieu of it." The clerktold him he might as well give
it then, for although not authorized by the cashier, he was cer-
tain the plaintiff's check would not be received at Bank on that
deposit. The plaintiff then made answer " On that score we
" are perfectly agreed. If the check is a forgery, which is all I
" wish to ascertain, it is no deposit." On the next day Mr. Levy
told the Bank that he would not refund the money, and that he
would not give them his bank book for the purpose of erasing
the entry. He then drew a check on the Bank for S 2600, the
amount of this deposit (an undisputed balance having been
previously paid to him) which was regularly protested lor non-
payment, and this suit immediately instituted to recover the
sum in question as money had and received and mc^ney lent
and advanced. Thomas\' forgeries, of which this was said to
be one, were known by several persons on the 31st ^aly and
1st Anq-Kst^ but not generally disclosed until the afternoon of the
3d August, in the evening of which day he assigned his pro-
perty for the benefit of his creditors, and absconded.

M'-Keaii (attorney general), Dallas^ and Ingersoll^ for the
plaintiff; Raxvle and Lervis, for the defendants.

For the plaintiff it was contended that his claim to a recovery
of the money was good upon several grounds. 1st, The entry
in his bank book was equivalent to an actual payment by the
Bank, or to a deposit of cash : at all events it was an acceptance

OF PENNSYLVANIA. 09

which made the Bank liable for the money. 2dly, The subse- 1802.
quent erasures by the Bank were wholly irregular, and as the Z ""

act of, one party, could have no effect upon the rights of the x>.
other. If the alteration could be made tlirec hours after the Bank U. S.
entry, it could be made at any distance of time whatever.
3dly, The plaintiff's language proceeded from a misconception
of his rights ; it was not so deliberate an act as the law would
construe intaa renunciation of them.

1. The check was entered as a deposit of cash in the plain-
tiff's bank book. The uniform practice of the Bank and the
universal understanding of its customers, shew that substan-
tially there is not the smallest difference between such an entry
founded upon a check, and one that is made for a deposit of
specie. For the convenience of the institution and the dispatch
of business, one clerk in this respect performs the office of two;
and instead of receiving the money for the check and handing
it over to be deposited and entered, the bearer finds both opera-
tions blended at one desk where the check is acknowledged to
be cash, and treated as such by the enu-y. The entry is the same
as a receipt for the cash. Leach 189. And if it was merely a
transfer of- so much money in the bank from the account of
Wharton to that of the ])laintiff, it was a payment. Bolton v.
Richard. (a)if\\c Bank having thus paid the check if it has
aimed /OUt to be a forgery they must abide by the loss; and
they cannot iadirectly compel a repayment from us by with-
holding our deposit. The acceptor of a forged bill of exchange,
who has paid it, cannot recover back the money from the
bona fide holder; still less where it has been paid at once with-
out any acceptance. Price v. Neal. {U) The law is the same
where payment is made under a forged bond ; the payer acts at
his peril. Allen v. Duiulas; (c)

But the result is siill in the plaintiff's favour, if we consider
this entry as an acceptance of the check, which in every ma-
terial respect is an inland bill of exchange, and is declared upon
as such. li'jchm v. Sterlinrf. (c/) Voy by a series of cases, some
of which are of long standing, and the rest of the highest
modern authority, the acc( |)tor of a forged bill of exchange i»
liable to the bona fide holder, whether the bill has been ncgo-

(«) f> n. cf E. 139. • (c) 3 D.Uf£. 182,

(^) 3 Burr. 1.355. 1 H/' Ml. S'JO C«<) 7 X>. U" i^. 4."#

30 CASES IN THE SUPREME COUkT

1802. tiatecl after acceptance or not j and upon this most reasonable
^Levy principle that the acceptor is presumed and bound to know the
V. drawer's hand writing, and to take that knowledge upon him-
Bank U. S. self. In the case of jfimifs v. Faivlcr et al. (a) which was an
action by the indorsee of a bill against the acceptor, the de-
fendant offered to prove it a forged bill by calling persons t»
swear that they did not believe it to be the drawer's hand wait-
ing. But Lord C. J. Rayynond refused the evidence, and
strongly inclined that even actual proof of forgery would not
excuse the defendants against their own acceptance. So in
Price V. Neal^ Lord Mansjield said it was incumbent upon the
acceptor to be satisfied that the bill drawn upon him was the
drawer'' s hand before he accepted it. In Smith v. Chester, (b)
Bidler J. says " When a bill is presented for acceptance, the
" acceptor only looks to the hand writing of the drawer, which
" he is afterwards precluded from disputing; and it is on that
" account that an acceptor is liable even though the bill be
" forged;" and in Master v. Miller^ (c) the same judge quotes
this doctrine as having proceeded from an eminent and learned
person in another place, " for half a century there have been
" various cases which have left the question of forgery un-
" touched. If a bill be forged, the acceptor is bound." " When
*' the drawee accepts a bill," says Lord Kenyon in fordaii e v.
Lashbroke^ (d) " he admits that the bill is signed by the per-
" son by whom it professes to have been made;" and most
inconvenient would it be if this admission were not enforced
against the acceptor who is in a state of complete privity
with the drawer as to the transaction upon which the bill is
founded, and who has opportunities peculiarly his own of
knowing the genuineness of the signature. It is indeed a ques-
tion of laches between the holder and the acceptor. " If the
" bill is not really drawn by the person whose name appears
" upon it as the drawer, to whom is negligence or want of cau-
" tion to be imputed ? To the acceptor certainly. And therefore
" if the bill be in fact forged, it is he who must sustain the loss."
Kyd 071 Bills 204. It may be said that the ground upon which
this liability of the acceptor has been maintained, is the credit
which he has given to a negotiable instrument; and that the

(a) 2 Stra. 946. <e) \ B. iSf E. 33.5.

(i) lD.i:;E. 635. {d) 7 D. ^Jf E. &)\.

OF PENNSYLVANIA. 31

principle of the various decisions is not met by the case before 1802.
the court, or bv anv case except that of a holder to whom the -t^xv
bill has been negotiated after acceptance. But although this v.
argument vnay be countenanced by the case of Jeiiys v. Faxvler^ Bank U. S.
where Lord RaymoJid appears to think forgery would be no
answer in the acceptor's mouth, because his acceptance " had
*' giveii the bill a ctedit to the indorsee^'* yet the principle is put
on a ver\' different ground by Lord Mansfield^ Lord Keni/on,
and Justice Bidler; the acceptor is liable because he is bound
to know the drawer's hand writing, and after his acceptance is
precUult'd from disputing it. The cases of Price v. Ntal, and
Smith V. Chester^ are decisive to this point. The Bank is
situated in this particular as though it had permitted a trans-
fer of its stock under a forged letter of attorney; a trustee
whether a private person or a body corporate must see to the
reality of the authority empowering them to dispose of the
trust money. Ashby v. Blackxuell. (ci)

2. The erasure was an act that by itself would subject the
books of an individual to just suspicion. It is manifestly an
irregular j)ractice to erase entries which hav^e been advisedly
made at the instance of third persons, and thus to attempt a
change of their rights. If an error of this kind existed it should
be corrected by a post entry which presents the whole matter in
an unmutilated form. But even if the erasure were legal it is
idle to say that the plaintiff's claim is destroyed by it. Is it un-
derstood in practice that the acts of the Bank are incomplete
until thiy have had time for investigation after bank hours?
Can it bt pretended that after the entry in the bank book, some-
thing is wanting to complete the party's title to the money? On
the contrary it is notorious that he may draw for it the next
moment. The transaction was cljsed as it respects the plaintiff
at the instant of the entry; and most complex and inconvenient
would be the operations of a Bank, and fatal to its own interests,
if a different doctrine should prevail. Sending the clerk to de-
mand another check in lieu of the forgery is conclusive to shew
th;ii lhr\- looked upon tlie erasures to be unavailing.

J. There is no bar then to the plaintiff's recovering Ijut iiis
conversation with the clerk; and it would be indeed a rare inci-
dent in the administration of justice, if such a conversation pro-

(rt) AnU)t. 50.1

$Q CASES IN THE SUPREME COURT*

1802. ceeding from great and painful surprise should be construed
I -^ . '"to the deliberate renunciation of a riglit. It was however a
,,, conversation in which the clerk thought proper to use a disho-
R.uik U. S, nest artifice to procure the money from the plaintiff. He stated
what was not the truth as to Mr. IVhartOTi's account. His design
was to entrap the plaintiff, and he has probably listened to his
language with this improper view. Hut what were the expres-
sions of Mr. Zct';/? Were thty an opinion suddenly formed
upon an imperfect consideration of the facts? This certainly
was the case. And can it be pretended that it amounts to the
release of a right, to an assent to every thing which the bank
had done after the detection of the forgery ? But if it amounts
to a promise to repay the bank, it avails nothing under the cir-
cumstances of the case. It was made under a palpable mistake
of the plaintiff's rights, and is not binding upon him. This
is so evidently the law that in Blesard v. Hirst ^ {ci) where
the holder of an inland bill neglected to give notice of its
nonacceptance to the drawers, and after the time of payment,
which was also refused by the drawee, one of the drawers cal-
led at the holder's house in his way to Leeds and told him he
would " take up the bill as he came back," but upon his return
said he was advised that he was not bound to do it, it was held
that the holder could not recover, and the promise by the
drawer was not even noticed bv the counsel, or in the opinion
of the court. So in Goodall v. Dolley^ (b) where there was an
offer by the indorser of a bill similarly situated, to pay it by
instalments, the court expressly decided that as it was made
under an ionorance of all the circumstances, he was not bound.
If money be paid under a mistake, which there is no ground to
claim in conscience, it maybe recovered back in an action for mo-
neyhadand received. Bizev. D'/ckason. (c) And in Evans v. Lle-
xvellyn^ ( d) even a conveyance, obtained from persons uninformed
of their rights, though the master of the rolls thought the case be-
fore the court did not present any proof of actual fraud or impo-
sition, was nevertheless set aside as improvidently entered into.

For the defendant, it was contended : 1 . That the entry in the
plaintiff's bank book did not amount to payment, and was clearly
made by mistake. 2. That the acceptor of the bill, though
indeed a check is not a bill, may upon the ground of forgery,

{a) 5 Burr 2670. (c) 1 D. iST E. 285.

(/') I D.l^ E. 7\?. {d) 2 Bra. Ca. 15CI

OF PENNSYLVANIA. 33

resist payment to any one to whom the acceptance has not given 1802.
the bill a credit, or in other words where the bill is not nego- i^^
tiated after acceptance. 3. That the plaintiff claimed through a r.
felony. 4. That the plaintiff's conversation amomited to a pro- Bank U. S.
mise to refund, and prevented the bank froni taking steps to
detain Thomas^ whereby the money was lost.

1. The usage of the bank is presumed to be known to its
customers, and forms an ingredient in every transaction between
them. The Bank is known to examine ever\' day the checks
which have been received during the hours of business, and to
correct bv the kind of erasure given in evidence, the casual
misentries which have occurred. It is partly for the security of
the institution, but it is principally to do perfect justice; and
the whole time that elapses between the opening of the Bank
and the end of the examination is therefore but a point of lime
in contemplation of the parties. The entry was subject to this
correction, k was a mere transfer of credit^ which it is true is
the same as a receipt; but a receipt in full is no discharge if
given by mistake; and therefore that which is the strength of
the plaintiff's case in one particular is the overthrow oi it in
another; for we claim the operation of all the authorities read
upon his last point, to resist his demand in the very threshold;
the entry was evidently a mistake. There is however a wide
difference between a transfer of credit, and a payment; for the
law is perfectly setdcd that if money be paid by mistake to the
agent of a third person, who passes it to the credit of his prin-
cipal against a debt which the principal owes him, and thus
closes the account, yet it is not a payment, but may be reco-
vered back in an action against the agent. Buller v. Harri-
son, (o) Nor is this principle opposed by the case of Boltoii
V. Richard; for there the defendant gave the plaintiff a check
upon their common banker, requiring him to pay on demand a
certain sum in a bill at three months. The plaintiff did not Lake
a bill, but accepted a transfer of credit from the defendant's ac-
count to his own, and the banker failed before the check became
due. In an action against the drawer of the check upon the ori-
ginal demand, the transfer was held to be payment because the
plaintiff had obviously agreed to consider it as such. Ashby v.
^/ac/t7vt'//' proceeded in some measure on the ground that the
Bank had deviated from their own rule with regard to the forged

(a) Cov-p. 5G5.

Vol. I. E

34 CASES IN THE SUPREME COURT

1802. power under which they suffered their stock to he transferred,

— Z — ~ — for in Ilili/ard v. The South Sea Compony^ (d) Sir J. Jekyl

^,, held that the company was but a mere instrument or conduit

Bank U. S. pipe, and that it was the purchaser's concern to inquire into the

letter of attorney.

2. But if this entry is considered to be an acceptance, still
it is competent to the acceptor to deny the drawer's hand writing
against every one but him to whom the bill has been negotiated
after acceptance. All the cases which are so reported as to be
■worthy of credit, put it upon the ground that the acceptor has
given a credit to the bill. In the leading case of Jenya v. Faw-
ler^ivom. Strange^ Lord Raymond vfovXA not admit evidence to
be given that the drawer's name vvas forged, y/-o/?z the danger to
negotiable notes; and he inclined that actual proof of forgery
>vould not excuse the defendants against their own acceptance,
rvhich had given the bill a credit to the indorsee. This was there-
fore the case of an indorsee after acceptance. That Lord Ray-
mond Wvciiic^i this principle to the particular case is evident from
Wilkinson v. Lutxvidge, (Jb) decided by him in the prior reign,
where, as between the acceptor and the plaintiff who was the
holder before acceptance, he lield that, the former was not
concluded from shewing the forgery; the acceptance being
in his opinion merely presumptive evidence ol the drawer's
hand. Price v. Ncul was also the case of an indorsee after
acceptance, and therefore comes within the rule of fenys v.
Fawler. Smith v. Chester contains to this point only the dictum
of judge Bidler^ and not delivered with reference to the dis-
tinction we take. When he repeats the same sentiment in
Master v. Miller it is again his dictum; and in his general ideas
in that case he was opposed by the whole court of King's Bench
whose judgment was afHrmed in error. It certainly may be true
under some circumstances that" if a bill be forged the acceptor is
" bound;" but wherever the question hasbeen solemnly discussed
the proposition is limited according to our argument; so that it
is impossible for the plaintiff's counsel to bring any thing but
dicta to their suppoit, while the doctrine of the cases which are
adverse to them has been adopted by more than one elementary
writer; 3 Woodeson 115. Kyd 202.; and if instead of resorting
to an arbitrary and in many cases an untrue position that the
drawer's hand must be known to the acceptor and not to the

.(«) 2 P. Trmc. 76. (b) Stra. 648.

OF PENNSYLVANIA. 35

holder, we adopt the reasonable and honest rule that so far as 1802.
the acceptance has given the bill a credit the acceptor shall be Levy
bound, we introduce a harmony into the system which recon- ^.
ciles the cases with the dicta, and an equity which tempers the ^^^*^ • '
severity of the law in its operation upon an innocent person.

If the case is resolved into a question of laches, what com-
parison is there between the conduct of the plaintiff who held
this check in his hands three days after it was due, and that of
the bank whose clerk during the hurry of business entered it in
the bank book ? The most that can be said for the plaintiff is that
he and the bank are in equal neglect, and then melior est con-
ditio possidentis.

3. The plaintiff claims through a forgery. Mead v. Toung {iC)
is decisive. There a bill was drawn payable to a certain
H. Davis or order and came by accident into the hands of
another H. Davis. While it was in his hands it was accepted
and then indorsed by him to the plaintiff. Three of the judges
were clearly of opinion that he could not recover from the ac-
ceptor, because he claimed through a forgery. The policy of
the law compels the holder of the l^ill to pursue the perpetrator
of the crime, who must be more within his reach than that of
the acceptor.

4. The conversation of the plaintiff proceeded upon no mis-
take, as all the facts were fully communicated to him; it was a
deliberate renunciation of his right if he possessed one. It
moreover prevented the bank from making any exertion to
arrest Thomas^ who on the same evening absconded.

In reply it was said that the plaintiff does not claim through
a forgery, but through the entry in the bank book. He does not
make title through the hill, but they attempt to defeat his title
by setting up the bill, Tiicre is no evidence that the bill was in
the plaintiff's hands a day liefore he j)resented it; the date is no
evidence of tlic fact; and if there was a delay it was for the
interest of the bank.

SiiiPPKN C. J. delivered the following charge to the jury

This case depends partly upon law, and partly upon the facta

which have been given in evidence to you; upon the former it

is incumbent upon us to give you our sentiments. Several points

of (rrcat importance have been made in the course of the argu-

ra)^D. 13* E. 28.

3t> CASES IN THE SUPREME COURT

1802. nitnt, upon some of which the court have an opinion, and in-
7~~', deed no great doubts upon any of them. They will communi-
1,. cate enough to assist you in forming your verdict, and if any
Ikink U. S. dissatisfaction is felt by the counsel, they can put tlie matter in
train for revision. It is our opinion that when the check was
credited to the plaintiff as cash, it was the same thing as if it
had been paid; it is for the interest of the bank that it should be
so taken. In the latter case the bank would have appeared as
plaintiffs; and every mistake which could have been corrected
in an action bv them, may be corrected in this action, and none
other. Now the law seems to be well settled that where a bill
of exchange to which the drawer's name is forged has been paid
by the drawee, it is too late for him to question the hand writing,
and the loss must therefore fall upon him. The efiect of an ac-
ceptance of a forged bill is not quite so clear. Some of the
authorities decide that the acceptor is bound, because his accep-
tance gives a credit to the bill, and as it is very common to
negotiate bills after acceptance, and indeed to procure their
acceptance for the purpose of negotiating them, the reason of
this rule may include the greatest number of the cases which
occur. If the acceptor were liable for no other reason, this point
would be in favour of the defendants, for the bank did not give
the check a credit with the plaintiff. But the modern cases cer-
tainly notice another reason for this liability which we think has
much good sense in it; namely, that the acceptor is presumed
to know the drawer's hand writing, and by his acceptance to take
thu, knoxvledge upon himself. In Price v. Neal it is said that
it is incumbent upon the acceptor to be satisfied that the bill is
the drawer's hand writing, before he accepts it; that is, it is his
duty; and if he does not attend to it, it is a neglect for which he
shwudd suffer, and not the holder whose duty it is no where
asserted to be. This rule would include the plaintiff's case. But
as it is a point of much importance, it sliall be reserved if the
counsel request it. The delay of the plaintiff in presenting the
check, even if it were proved, is of no importance between these
parties. 'I here are instances in which an indorsee holding a bill
too long makes it his own; but it is for a reason which can never
avail the acceptor or drawee. The drawer or indorser may lose
by the delay, if their responsibility is held to continue; but it is
for the advantage of the acceptor that the demand should be
deferred, and he cannot sustain any injury by it. Whether the

OF PENNSYLVANIA. 37

Bank is entitled to a certain time for the purpose of examlna- 1802.
tion, depends upon their mode of doing business with their I ^
customers, which is a matter of fact. It is impossible that they ,,
should be able to detect every forgery the instant it is present- Bank U. S
ed; and they are clearly free from any laches in communicat-
ing the detection of this forgery to the plaintiff. But it is said
the plaintiff has voluntarily renounced his right, by agreeing
that it was no deposit if the check was a forgery. If he had said
this deliberately, knowing his right, it might have been obliga-
tory on him; but it was the expression of an opinion of what he
should be obliged to allow, rather than of what he was willing
to allow, and being under a mistake of his right he is not bound
by it. The case of Penn and Lord Baltimore is decisive to this
poiit. I was present at the argument half a century ago, and
heard Lord Hardxv'icke say, though it is not mentioned in the
printed report, that if Lord Baltimore made the agreement in
question under a mistake of his right to another degree of lati-
tude, he ought to be relieved; but that he was not mistaken.
As some of the points however are of extensive commercial
importance we will hear their merits examined in bimk on a
motion for a new trial, or otherwise if it is desired. In the mean
time you will find such a verdict as the evidence and the law, as
thus explained to you, will wanant.

Verdict for the Plaintiff.

A motion for a new trial was argued at March term 1803, by
Raxvlc and Lewis for the defendants, and by Ingcrsoll for the
plaintiff, upon the same points which were made at the trial;
but the court stopped Jni^-crsoll in his argument, and imme-
diately discharged the rule, without assigning their reasons.

The CojuiiKMUvculth ai^'ciinst Pa sua Lib. T/,uiJcLiy,

Dcccmbei

/^N this day, which was the fourth day of the term and of ^ ''j.^.^gp

^-^ the general jury period, the attorney general asked the encc must

court to give this cause a precedence upon the trial list, agree- J5^,.°]*,n^|j,^",'

ably to rule 52. 7ih yanuarij 1789. But wcultli caus-

es upon llie

Per Curiam. A preference should have been asked upon ,i',ej„^y °
the first dav. The cause must now take its chance. P'-riod.

38 (.ASES IN THE SUPREME COURT

1802.

Jones unci Clarkk against The Insurance Compiiny
of North America.

Monday,

December

27\.\\.

A bill of ex-

the charge A FTER the sealing up of their verdict in this case by lYc

inay be ten- J 1. I'urv, but before the delivery of it in court, E. Tils^linion
dercd at uny /. , , ^ i • r

time before for the defendants tendered a bill of exceptions to the charge n

, j^^'.J"^ j^^'^the court delivered by the chief justice; and the question was

their verdict whether it was in time.

in open

court; even

after they Dallas for the plaintiffs objected that it was too late. The sla-

upon iS"^^"*^ °^ ^^^*'* 2. 13 £^. 1. c. 31. which gives the bill of Excep-
sealcditup. tions, specifies no time; but it must be tendered at the tral.
Bull. N. P. 315.; Wright v. Sharj) («); Tidd's Prac. 312. 314.;
and at the trial means before verdict. Exception shall not be
allowed after verdict, Tidd 314. ; and the uniform practice has
been to tender the bill at the time the exception is taken, Jloi-
tyn v. Fabrigas (/>), Si/mmers v. Peg-em (c); though it may be
sealed afterwards. JlJoneij et al. v. Leach (d). The same point
is expressly ruled in Wright v. Sharps where Holt C. J. and
Potft'/J.say it must be prayed and minutes of it taken at the time
of trial, and the cause may go on nevertheless ; it may be redu-
ced to form afterwards. The judge is not obliged to seal it unless
it is offered at the trial. Pocklington v. Hatton {e). It is com-
pared to a demurrer to evidence and to a special verdict, both
of which must be minuted at the time. Gibson v. Hunter {/).
The judges should set their seals that such exceptions were ta-
ken at the trial; and the writ to acknowledge the seal presumes
that at that time the exceptionable matter was noticed. Money v.
Leach. The precedents all justify these positions. Bull. N. P. 319.
Lill. Ent. 249, 250.; and every evil which can arise from a bill
of exceptions after a common verdict, will arise atfter one oi
this character, sealed up for delivery.

E. Tilghman stated that the objection was taken as soon as the
court opened, and before the jury appeared at the bar. A ver-
dict had indeed been agreed upon, and sealed up for the con-

Ca) 11 Mod. 175. 1 Sa!k. 38S. S. C. {d) I W. Bl. 556. 3 Bun. 1692. 5. C
lb) 2 W. Bl. 929. (e) 8 Mod. 220.

t217

387

1^7

OF PEN NS Y L V ANI A . 3 9

venience of the jun^; but such a verdict is not given until the 1802.
jurors have parted with it, and it is read and affirmed in open y~ ,'
court. 3 Bl. Com. Z77. Until this last step the trial continues; Clarke
the trial is over when this last step is taken. By this undeniable ^.
position all Mr. Dallas^s cases are done away; all of them ad- If^surance
mit that the exception will answer if taken at any time before xt \
verdict.

But there is also an important difference between an excep-
tion to evidence^ and an exception to the charge. In the first case
if it be not made when the evidence is offered, a reliance is
placed on the sufficiency of the evidence, and better or additional
evidence is not sought; the exception taken at a late period
would therefore if valid strip the party of his support when he
no longer had the opportunity to procure more. But before the
charge each party is presumed to have exhausted his evidence,
at least so far as is material; and no injury can accrue to either
party by a subsequent exception, if it be made before verdict.
By this distinction too the cases read are explained away. Tidd
314. is of an exception to evidence; so Bull. jV. P. 315. Wright
V. Sharpy and Symmers v. Rcgcm. Mostyn v. Fabrigas is not
to this point either way; nor is Money v. Leach; and the prece-
dents cited shew the exception to have been taken even subse-
quent to the verdict. Bnll. A'. P. 319. Lill. EnU 250.

Dallas in reply observed that there was no distinction in the
books between charg< and evidence; and that the cases of Por^-
lington V. Hattony and JVright v. Sharp related to the charge.

Per Curiam. A jury may depart from a privv verdict. Un-
til it has been opened and confirmed in court, it is in fact no
verdict; and the authorities and precedents which have been
read shew undeniably that if the exception to the charge is
taken at any time before verdict it is in season. We cannot re-
fuse to allow the bill in this case; and wc arc hnjipy to do it as it
will bring the principal question before ;i higher irilnmal.

CASES IN THE SUPREiME COURT

180:

.^Icnday,
Januarys 1st.

A protest
jnade by the
captain of" a
vessel within
twenty-four
hours after
his arrival at
his first port
where both
the owner
and insurer
resided, and
without no-
tice to the
insurer, is
evidence in
an action be-
tween those
parties to
shew that an
occurrence
at sea had
made a de-
viation ne-
cessary.

Brown against G i ii a r d .

lb 4(1
ab 258

''r^HE defendant underwrote a policy of insurance on the
■*- schooner Eagle^ upon a voyage at and from Edenton^
North Corolino, to Cape Nicola Mole. The vessel was captured
as she was sailing fronl Pliilacklphia to Cape Nicola Mole^ car-
ried into Port de Paix and condemned. At the trial of the
cause before Judges Smith and Brackenridge at Nisi Prius in
June 1802, the plaintiff's counsel, to excuse the deviation,
offered in evidence the protest of the captain made within
twenty-four hours after his arrival in Philadelphia^ where both
the plaintiff and defendant resided^ but without notice to the
defendant, to prove that the vessel upon her voyage from Eden-
ton to Cape Nicola Mole struck on Ocracoke Bar^ by which she
spnmg a leak, and that in consequence of stormy weather Phi-
ladelphia was the first port she could make. This evidence was
objected to by the defendant's counsel, and refused by the
court, reserving the question, and giving the plaintiff leave, in
case he should be nonsuited on this ground, to move to take
off the nonsuit. The plaintiff being unable to supply the proof
suffered a nonsuit, and accordingly now moved to take it off.

Condi) for the plaintiff contended that the protest of the cap-
tain had been invariably admitted in Pennsijlvania^ as evidence
in cases between insurer and insured to prove capture, to ex-
cuse deviation, and in general to establish transactions at sea.
Nixon v. Long (a). Story v. Slrettell (A), Richette v. Stewart (c).
That there was nothing in these cases, and nothing in the reason
of the rule to confine it \.o foreign protests; that they had been
admitted here on much the same ground, upon which a trader
is allowed to prove his book of original entries, the necessity
of the case, which justifies the admission of a protest made at
home as well as any other. Notice to the insurers was unneces-
sar)-. A cross examination would not have given the document
any additional effect in court. It is ind;;ed presumed to be im-
practicable as the protest must be extended within twenty-four
hours after arrival, and the insurers are not known to the cap-
tain. A protest has no resemblance to the ordinary deposition of
a witness. It is made before a dispute occurs, before any action

(a) 1 Dall. 6.

(i) 1 Ball. 10.

(01i)fl//.3ir.

IN PENNSYLVANIA. 41

can be brought, and by a peison wlio is in some measure the iqc
agent of both parties. A protest made here was admitted in
the Common Pleas in Gilchrist v. Ward, before Judge Biddh.

Brown

Raxole and Ingersoll answered that the admission of a cap-
tain's protest in any case is a dangerous exception to the salu-
tary rules of evidence. It is ahva_vs rejected in England^ even
under the most favourable circumstances, Senat v. Porter (ci);
and generally through the United States. It is an ex parte
affidavit by a pt-rson under strong temptations to colour or
conceal facts for the purpose of justifying himself. Where
however it is made abroad under certain regulations, it must
now be received in Pennsylvania^ for so are the cases cited; it
has been thought admissible from the necessity of the case.
But where is the necessity that when owner and underwriter
reside in the very port of arrival, the captain without notice of
any kind should proceed to make his deposition in a corner. If
a cross-examination would not give to the instrument the cha-
racter of Icgid evidence, it would get at the truth. The cases
have never gone the length of admitting a protest made at
home. In Gilchrist v. IVard^ a bill of exceptions was tendered
to the court's opinion, but was never prosecuted, because the
Verdict was for the excepting party.

Shippen C. J. delivered the opinion of the court.

The question is whether the captain's protest made in the
port ol Philadelphia^ (where both insurer and insured resided)
on a vo}age from Edcnton to the West Indies^ can be given in
evidence r The protest of the master of a vessel was ftrst ruled
to be evidence in the case o{ Nixon iif Harper v. Long-^ in 1762.
On eveiy occasion since, both before and since the revolution,
as between insurer and insured suth protests have been adiiiit-
ted in evidence. But it is objected that the protest was not
made in jiforeign port, but in a port where tlie parties resided.
I take it that the reason of ever admitting it arose partly from
its being an instrument which the insurance offices always ex-
pect to be produced to them, ;is a document to prove the loss,
and partly from the necessity of the case as a commercial trans-
action. What is the nature of this necessity? I take it that the
■Mss or damage arises on the occan^ and that the master is the

(fl) 7 D.ist E. 158.
Vol. I. F

GiRARD.

CASES IN THE SUPREME COURT

1803. only person arquaintcd with all the facts; and he immediately
"TT on coming to shore making a protest, it is admitted to be read

■,.. in evidence in a commercial case, contrary to the general rules
GiRARD. of law in other cases. Whether the parties reside here or else-
where, this necessity is the same, as the damage was at sea^ and
the master is the best able to give an account of it. The calling
the insurers before the notary when the protest is made, to give
them an opportunity of cross-examination, would be a novel
proceeding, and if done, would not by the rules of law make it
better evidence, as no action then depended. Therefore let the
nonsuit be set aside.

Nonsuit set aside.

RusTON against The Administrators of Dun woody.

ON behalf of the plaintiff a motion was made by Rawle to
strike off the rule of reference, which had been made in

March 14tli.

The court
will not per-
mit a rule ot ^^^^ cause,upon the ground that the original defendant was dead.

lias been a
mefitincjof
the referees
and the par-
ties have
proceeded
before them

reference to

be struck off" that the rule had been assented to by the plaintiff with the ex-
atter tiiere pej-^^^jon j^at from a personal understandmg with the defend-
ant he would derive certain accommodations, which his admi-
nistrators who were now parties to the action could not give,
and that the rule being entered into between the plaintiff and
Dumvoodij^ it could not operate as a rule between the plaintiff'
in the con- and the administrators oi Dunwoody. He cited 3 St, Laws 94. y
not\vitlf-' ^^^ argued that from the spirit of the privileges there allow-
standing ed to administrators, the court would be authorized to rescind
meetinff one t^^^ rule upon an application by them, and of course, to make

of tlie origi- gn equitable reciprocity of advantage, they should do it for the

nal parties is . .

dead, and his survivmg party.

representa-

T. Ross for the defendants answered that there had been seve-
ral meetings during the life time of Diinzuoody^ and therefore
the plaintiff had already derived the advantages which he con-
templat-'d in agreeing to the rule: that it was a general practice
of this court to refuse to rescind a rule of reference after there
had been a meeting of the parties; and that as the administra-
tors had come in voluntarily without asking any favour, there
was no equity in granting one to the plaintiff; though the act

tives have
been sub-
?!lituted.

OF PENNSYLVANIA. 43

uited appeared to regard no other privilege to the defendants 1803.
than that of a continuance. Ruston

Per Curiam. Rules of reference should not lightly be struck Dun-
ofF, after a party has felt the pulse of the referees at a meeting,
and concessions have been made which cannot be afterwards
used. Upon the circumstances of this case we must continue
♦4ie rule of reference, (a)

(fl) Vid. Turner v. Ccnvper, Barnes 210.

WOODV.

Snyder's Lessee as^ainst Hoffman. iVedr.esda^

EJECTMENT for a house and lot in the district of South- A rci^on of
xvark. John Snyder the lessor of the plaintiff obtained auiihoutcon'-
judgment against Peter Hoffman in this court at September term se"t of par-
1798 for 305 dolls, and 58 cts. and costs; and by a ft. fa. he back to the

took in execution the premises in question. The inquest found ^"'^"^'^ '"'.'■ ,

, icrccs iortiic

that the rents and profits would pay in seven years; and a /^/ic- purpose of

rar'i facias was then issued, and a return made that the house P,!^'"'^^''"^
, ,. , ... or* iniorinalily.

and lot were delivered at a certam valuation to ctnyder. At the

time of this execution Eleanor Hoffman the defendant, who was

the wife of Peter but had separated from him, claimed and was

possessed of the property under a conveyance from Peter to one

Hannah Toy; but this conveyance was alleged to have been

without consideration and with intent to defraud Snyder; and

he therefore brought the present ejectment.

The matters in variance in this cause were referred under a

rule of court; and the referees made the following report: " Wc

••' the referees &c. do award a balance of 364- dolls, and 37 cts.

" due from Peter Hoffman the defendant to John Snyder plain-

" tiff, with costs of suit. It is in full proof before the referees

" that the said Peter Hoffman and Eh'anor his wife conveved

" a certain house and lot in the district of Soutliivark unto Han-

" nah Toy in fee, without any valual)le consideration; which

" said house and lot were reconveyed by the said Hannah Toy

*' to Eleanor wife of the said Peter Hoffman without any con-

'' sideration as appears to us, thereby intending to prevent the

' said house and lot being levied on for the payn»cnt of the just

44 CASES IN THE SUPREME COURT

1803. *' debts of the said Feti'r Hoffmun^ which in equity roc beluvt:
S • • kr's ' ^^^^^^^ ^^ made liable to the jiidgmcnt that viaij Ae obtained by
Lessee " the said JqIiti Snyder on this award^''

^'- To this report several exceptions were filed. 1. That the

"°^^^^''' referees had decided on a matter not submitted to them; viz.
tlie sum due from Peter Hodman to Snijder. 2. That the award
was not positive, as the referees merely say they believe that
the premises should in equity be made liable to the judgment that
w«// be obtained, o. That the referees report that the premises
should be liable to the judgment obtained on this axvard; whereas
the question was whether they were liable to a judgment ob-
tained in another suit. 4. That the sum awarded to be due was
not the same that was recovered in the suit between Snyder
and Peter Hoffman.

Hopkinson in support of the exceptions, after opening the
case, was stopped by the court, who desired to hear the opposite
counsel.

Rawle in support of the award. All the exceptions, but thai
Avhich relates to the sum awarded, turn upon informality; and
as to that exception, the referees have merely added interest
to the original judgment; at all events there ^s no doubt an
award may be good in part and bad as to the rest. This court
has been astute to support awards where justice has been done,
and the real question between the parties decided. They have
gone even in the case of verdicts as far as is necessary here, by
moulding an informal verdict so as to produce consistency on
the record. Walker v. Gibbs^ (a) Thompson v. Musser {b). The
report is in effect a general finding for the plaintiff. For the
only question between the parties was whether the premises in
controversv were liable in equity to Snyder'' s '^xxd^vnent against
Hoffman^ and this the referees have substantially said, although
they may have added immaterial matter.

Condy in reply. There is evidently something more than in-
formality upon the very face of the award. The referees do not
find the house and lot of which they speak, to be the same for
which the ejectment is brought; they award that the deed by

(a) 2 DalL 21) {b) i Dal I. 458-

OF PENNSYLVANIA, 45

Hannah Toy was intended to defraud, and not that to her; they 1803.
report their beluf^ instead of saying that the fact is or is not so; Snyder's
and instead of awarding- that the premises are liable, which is Lessee
the ver>' question in dispute, they express an opinion that in '"•
equity they ought to be so. Further, it surely is no informality "°^^^'*^^''
to award a sum to be due by Peter Hoffman the defendant^
when he is no party to the suit, when that question was never
submitted to the referees, and when it is confessed to be a diffe-
rent sum from that which Snyder actually recovered from Hoff-
man in a suit at law. This part of the report exposes the premi-
ses to two debts, or certainly to a larger one than was due.

Th^ Court, after the argument, being of opinion that the report
was merely informal, recommitted it to the same referees to
correct the informality; who on the next day reported gene-
rally that they found for the plaintiff with six pence damages.

Condif and Hopk'inson now objected to filing the second report,
as the court had no authority to recommit without consent of
parties. But,

Per Curiam. In the case of Eckarfs administrators v. The
executors of Vandcren there was a recommitment without con-
sent after argument; and for these thirty years such recommit-
ments have been frequent, when the report has been informal.

Judgment for the Plaintiff
on the second Yc\iOYX.

T u R N B u I. L against The Commonwealth . Monday,

SejUember
5tli.
TNGERSOLL for the plaintiff, asked the court to give this The court

1 ^u^'ii'^ 11^ 1^ will not Ki-ant

cause a precedence upon the trial list agreeably to rule 52, pj-i-cedcnce

7th Januanj 1789, and rule 5!i, 8th April 1789, the common-'" ^ "'"^^^ '"

wealth being a part}- and interested in the event of the suit. coinmon-

weullli is in-

31. Levy who was concerned in other causes, objected to the less itis'ask-
prcfercncc, inasmuch as the rules embraced the case of common- '^^' '*> ^''^
wealth plaintiff, and not defendant. The preference he said was \vcaltb.

46 CASES IN Tin: SUPREME COURT

1803. ^^^ odious one; it had arisen iVoni that very unjust })arliahty
TvHNUuLL^^'^'^ in England is shewn to the business and rights of the
V. crown, to the vast injury of the subject; and therefore should
1 he Com- never be extended by a free construction.

monwcalth.

M^Keati (attorney general) said he had never asked a pre-
ference in such a case; nor did he now; but he did not object
to it.

Dallas' for the plaintiff replied that the ground of the rule
had been misconceived by Levy; it was founded, he said, in this
simple and equitable principle, that the business of the commu-
nity, in which all are concerned, should be transacted in prefer-
ence to that of an individual which concerns but one ; it was
therefore as just a provision in a case like this, as in the case of
commonwealth plaintiff.

The Court held the matter under consideration until the
next morning, when they said that as the attorney general did
not ask the preference they would not grant it.

September DeBeNNEVILLE f/^rt-/;;^^ De BeN NE VIL LE.

lOlh.

Witnesses T^ ^^^^ cause, which was an action of trespass for mesne pro-
subi ocnaed A fj^g^ ^ verdict was found for the plaintiff for 200 dolls, and the

th(nii,'h not r • i n t^

examined, prothonotary taxed the costs ot witnesses at 162 dolls, rrom

ai.d examin- this bill the defendant appealed.

ed tlioiifcli ' '

not Kubpcc-

riacd.areen. Raxvle for the defendant allecred that eight of the witnesses

titled to pay- ° °

ment. A par- suhpcenaed by the plaintiff had been neither examined nor called

ty may call ^ j^jj^ ^^^ ^^^ ^^ others were called and examined solely
as many %vit- -^ ' •'

nesscs as lie by the defendant; and he prayed the opinion of the court whe-

thinksneces- .1 • • i • i i •'.•m i. ^ „

sarv to make * ^'^ '" ^ cause m which a plaintiff knows he must recover some-
out his case; thing, and defendant has nothing to oppose to his demand, he
the court will „ , . . , . i i • ^i.

notinterteie ^ oppress his antagonist by summoning and charging the ex-

uiilr-ss he is pense of witnesses whom he never calls to the book.

giiilty of
oppression.

Dickerson for the plaintiffstated that several of the witnesses

were brought to prove the annual value of the estate and some

OF PENNSYLVANIA. 47

other points which were unexpectedly conceded at the trial j but j gOo.
that there was no wilful oppression. ^^ Ben-

. , , . • ... J NEVILLE

Smith J. I examuied this question a long time since, and ^^
this was the result; a witness subpoenaed though not examined De Ben-
has a right to payment; so if examined though not subpoenaed, neville.
A party has a right to call as many witnesses as he thinks are
necessary to make out his case. Where there is oppression it
must be proved, and the court will lay their hands upon it; but it
is not to be presumed.

Shippen C. J. There must be proof of oppression, which
does not seem to be the case here.

Per Curiam. The bill of costs, as it has been taxed by the
prothonotary, is confirmed.

Watson and Paul against Ihe Insurance Compan}' ^"e^^^^v.

o -VT 1 A • Sept. 13tU.

of North America.

HIS was an action of covenant upon a policy of insurance In an action,
by the defendants for 1000 dollars, on Goods by the sloop "i^j,^,,!"!^^^'^ "
Rebecca^ at and from her last port in Jamaica to Philadcljjhia, ''^■\^crc\nthQ
with liberty to touch at the Mole. The plaintiffs declared for a |.'|;||."^' ^-^3^.^^^'
total loss by capture; and at the trial before Shippen C. J. and total loss,
'Smith J. at Nisi Prius in March 1802, the following facts were 'p^"|,J".°^^'q^
in evidence. The sloop, with her complete return cargo oncundcmna-
board, sailed from Green Island in Jamaica on the 28th May p,.op",.tv in-
1797, bound for Montcgo Baif^ not with a view to take any ad-sn'*il which

.... , ' , ... , " lie lias iievt-r

ditional cargo, but to get the requisite clearance and papers .^bamloiu'd
from the custom house at that place, there being none at 6Vtr/ztotlic iin<lei-
Islancl. On the 29th Maij^ on her way to Mo7ifeifO Baij^ .she was j,„.j, ,„,',^.
captured bv a French privateer, carried into Cape Francois. and'-'^t''"atc' ihc
together with her cargo, condemned. Un llie ^(XAui^Ufit 1/9/,,^,.^. rcaipet-
the protest of the captain setting forth the captuie and con-f"«{'. deduct
demnation was exhibited at the office of the defendants, when^^jinie mum
a demand was made for a total loss, which the defendants re- ""siTcd, "ni'l
tused to pay; whereupon tins action was instituted. 1 he plain- ni.air.dcr as a
iffs' interest was proved. prntinl losf.

The cause wa-; argued to the rouit and jury upon thrcr obje^-

Ins. Co

N.A.

48 CASES IX THE SUPREME COURT

1803. ^'oii** to the claim. First, That Green Is/atid was not the sloop's

■— ; last port in 7<^'"f^'C« •within the meaning of the policy: for as

and ^'^^ policy was to attach only when she finished her coasting,

Pai' I. anti she had sailed to 3Iontcgo Baij for her papers, it was evident
"v- that Montego Bay was contemplated to be her last port. Second^
That it was against usage for vessels loading at Green Island to
go to Montego Bay for a clearance, but that Lvcea was the port
from which it should have been obtained over land; and that
sailing to Montego Bay was therefore a deviation. Third, That
there had been no abandonment, without which the plaintiffs
could not recover a total loss, and no partial loss being proved,
they could not recover any thing.

The first and second objection the chief justice in his charge
left very much to the jury; and they were not noticed in any
subsequent stage of this cause. The third was reserved for con-
sideration in bank. The jury, without following any rule that
was suggested, but, as was understood at the time, by compro-
mise with each other, found for the plaintiffs 740 dolls. 10 cents;
and it was then agreed that the propriety of a verdict for this sum
under the circumstances of the case should also be reserved as
a point to be argued with the other upon a motion for a new trial
by the defendants. The points were reserved in the following
terms: 1. Whether an abandonment is sufficiently proved or
waived by evidence of a demand as for a total loss and refusal
to pay. 2. Whether where the demand is for a total loss, and
there is proof of a total loss, the jury can find a partial loss or
a less sum than is underwritten.

They were now argued by 31. Levy and Letvis for the plain-
tiffs, and by Moykm, E. Tilghman, and Ingersoll, for the de-
fendants.

On xhtjirst point Levy argued that no specific words are
necessary to form an offer of abandonment. Any words will
answer if they indicate a willingness in the assured to cede the
property damaged or jeopardized, as soon as the loss shall be
paid. All that is necessary is to do some act signifying an inten-
tion to abandon, Mitchell v. Edie (a); and a demand for a total
loss is the fullest evidence of this intention. Upon the payment
of the loss by the defendants the property would have v»ested in

(a) 1 2J. £5* ^. 616 *

OF PENNSYLVANIA. 49

them without further act by the plaintiffs, which shews the reason ■« gQo

of the principle. As in trover and trespass, after judgment and ~Tr;

satisfaction for the conversion or taking of goods, the property is ^^^
in the defendant. Brorvn v. Wotton^ (ci) Lacon v. Barnard^ (J)) Paul
Glib. Ev. 265. The object of an offer to abandon is to inform ^'-
the insurer of the party's election, that he may pursue the -^^ . '^'
remnant of the property, and make it of as much value as
possible, AllwQod v. Henklc. (c) Any act which communicates
this information must be equal to a formal offer, and a demand
as for a total loss is as explicit to this effect as any act can be.
It was evidently so considered in the case of Havtlotk v. Rock-
rvciod^ {d^ where the assured without abandoning or offering to
abandon in terms, merely demanded as in this case payment as
for a total loss. He was indeed prevented from enjoying the
benefit of it, because upon a demand by the insurers that he
should actually assign his interest, he refused; which negatived
the willingness to abandon implied by the demand of payment;
of course, but for this refusal, he might have recovered upon
his demand alone. This was a case of capture like the present,
and is in point.

But the refusal to pay, williout mentioning the want of an
offer to abandon, was at all events a waiver; as in the case of a
tender of bank bills, where no objection is made particularly
to bills.

On the second point Lewis argued that it was clear the find-
ing of the jury would stand well with the declaration for a total
loss, that point being at rest bv the case of Gardiner v. Croas-
dfdc. (e) The proof of total loss referred to in the point re-
served is such as the circumstances of this case set forth, a loss
which would have been total upon abandonment, but which is
so incomplete as to leave a spes reciipcrandi. 'J'here has not
been a total destruction, the property remains in specie, and the
question is whether the jury can make a deduction for the
chance oT recovery'. The assured is not in any case bound to
abandon; but the onlv consequence of not abandoning is that he
must be satisfied with an average loss; Goss v. Withers; (y)
Mitchell V. Edie; and as an average loss he may recover any
thing even a cent short of the sum insured. Park 103. 144. 199-

{a) Co. Jiic. 73. {(i) Atchcwn \.b D.IJ E. 274.

(b) Cro.Car. 36. (r) 2 Burr. 906.

f() Park 172. (/) 2 Burr. 679.

Vol. I. G

N. A.

5Q CASLS IN THE SUPREME COUR'l

1803. The pltilntlfts have chosen to reserve the spes recuperandi to

TT thcinsilves, which they had a right to do, and which it is to be

and presumed the jury have valued. It the loss is so complete that

Paul there is nothing left, no abandonment is necessary according to

''• Camber Ijn 9- X. M'-Call; (a) if on the other hand an abandonment

T^' 4°' is necessary to make it a total loss there being something to cede,

that something is a deduction from a total loss which leaves an

average. Havclock v. RockwoodwAs, the case of a declaration for

a total loss, a total loss like the present proved, and a recovery

for a partial loss.

For the defendants it was contended that an explicit offer to
abandon was necessary, because notwithstanding the demand
as for a total loss, the plaintiffs might still upon a change of pros-
pects have recurred to the captors; by this means the insurers
would have been kept inactive by their uncertainty, and the
assured would have plajed fast or loose according to the colour
of events. All the cases require an offer to abandon, and they
speak of it in connexion with and subsequent to the demand as
for a totalloss, proving thereby their distinct character. 2 Mar^li,
479.481.483. 485.488. 494. 517, 518. P«r/^ 82. 143, 144. 172.
Havelock v. Rockxvood by no means decides that a demand for
a total loss is equivalent to an offer of abandonment. On the
contrary the underwriters in that case demanded an assignment
of more than they were entitled to, which the assured very pro-
perly refused, and then the case stood upon the original ground,
a simple demand of pa}-ment, which was held to be insufficient.

There is no pretence for presuming a waiver. If an offer to
abandon was necessary, the insurers had a right to refuse; the
title of the assured to payment as for a total loss was incom-
plete, and the demand unfounded. It never was heard that a
party bound to a certain duty after the performance of a condi-
tion by another, is likewise bound to tell the other party that he
must perform his condition under the penalty of being presu-
med to waive it.

The second point involves the existence of abandonment; for
if upon a declaration for a total loss, and proof of a capture and
condemnation of the property, the jury may value the fipes recu-
perandi^ and their finding is protected as a partial loss, it will

(a) 2 Dall. 280.

OF PENNSYLVANIA. 51

supersede abandonment in every case. The oljjections to it are 1803.

insurmountable. The jury must find according to their proof. Ay TygQ^

Now what has been proved here ? Capture and condemnation and

and the property still in the hands of the captors. Will any one Paul

sav this is an averaere loss? Is there a dictum, the sentiment of ^ ^''

■ . , . . r • 1 - Ins. Co.

an elementary writer, even the opmion oi a practical insurer to tsj^ ^^

justify such a name for such a loss r Do any of the rules for the
adjustment of partial losses apply to it ? Has any of the property
insured come to the owner's hands, or to any one for his use, so
as to form a deduction from the whole sum; or has there been
damage or partial injury? Certainly not, and without this there
cannot be an average loss. But it is said the spes reciiperandi
may be valued and deducted. By what rule is this to be done ?
Contracts of this kind are not to be governed by the vague
notions which twelve men may happen to form of the chances
of war, or the justice of foreign nations. They are contracts to
be governed by facts and not by imagination; and nothing can
be more completely indeterminate than the value of this hope.
But further; the spcs recxipcrandi goes to the whole property;
it is either good for the whole, or good for nothing. If it is good
for the whole, the assured while he retains it should not recover
any thing; if it is good for nothing, where can be the ground of
a partial loss ? The truth is that the law of insurance, to do per-
fect justice to both parties has said to the assured, you sliall not
retain the sptn reciipercmdi upon a pretence that it is good for
nothing, receive from the underwriters an indemnity for your
loss, and perhaps afterwards recover the thing insured; but you
may within a reasonable time transfer this hope to the insurtr,
who must pay the sum insured, and may then make the best of
the property for himself.

It is also argued that if this is not an average lossj, it is so
total as not to require abandonment. This proceeds upon a mis-
take. The law of insurance recognises but two kinds of less,
perfect in themselves, and which require no act of the assured
to vest his title to recover for tluin. The (irst is a total destruc-
tion, as by sinking at sea, blf)wing up &c.; the second is a par-
tial loss, where tlic damage or injury to the property is shoi-t in
some degree or other of total destruction. When eitherof these
losses is proved by the assured, hisrecoveiy mustbe/jro tanto.
Under certain circumstances the same law authorizes the assu-
red by abandoning his interest to the underwriters to recover a

52 CASES IN THE SUPREME COURT

1803. total loss from them in cases of extensive partial loss, and also

Wmson ^" cases where there is neither partial loss nor total destruction,

and as where a voyage is broken up, or the property is captured and

Paul condemned as in the present case. But in these cases without

, ^** abandonment there is no total loss; and every case in the books

Ins. Co. r • . 1 • r

N. A. ^''^y^ SO" ** '^ ^^^^'^ ^"'^^ even a capture may turn out, and it oiten
does turn out, to be a partial loss; and as such may be made
good under the policy as well as those extensive partial losses
which the assured has neglected to convert into a total loss by
abandoning; but unless the assured can shew a true partial loss,
or has abandoned in reasonable time so as to have a claim for
a total loss, his indemnity under the policy is gone. The prin-
ciple Avill stand the test of any investigation; it is part oi the
essence of indemnity, that while the thing insured is in exis-
tence, you shall not recover as for a total loss, unless you have
surrendered to the insurers your claim to the property with the
right of pursuing it in the best manner they can devise.

The cases which have been cited are not to the purpose. In
Havelock v. Rockxvood ^md in Mitchell v. £r/?> a partial loss was
proved as well as recovered; and the language of Buller J. in
the latter case is very explicit. " I am of the same opinion with
" my'brother Ashhiirst that where the voyage is lost but the pro-
" peitv is saved, the owners have an option to abandon, but
" unless they do elect, it is only an average loss." Which most
evidentlv means that total loss is out of the question without
abandonment, and that the recovery can only be for an average
loss where such a loss is proved. In the case of Bell v. Beve-
r'ldge {a) which was a case of capture and condemnation like

C«) I have been so fortunate as to procure a memorandum of the Chief
Justice's charge in the case referred to, from the notes of his honour Judge

Uniith.

Siiii'PEN C. J. " Tlic principal point rested on by the defendant is whe-
llier tliere was an abandonment in proper form and time. As to forms of aban-
donment, none are prescribed, and they are not material. It is sufficiently
made out that plainlifT meant to abimdon; but was it in timer It must be in
reasonable time after he lias ucll authenticated intelligence of the loss, so
that he shall not by delay derive any advantage. The time between the intel-
ligence atid the abandonment was however a long time, four or five months.
But the plaintiff seemed disposed to look to the underwriters from tlic firstjf
if he waited till he should know whetlier he could recover from the French
government, he ought not to recover. //* to axerage loss, it is out of the
'ruestiun." Vide 4 Da//. 272. s. 6.

OF PENNSYLVANIA.

Ins. Co.
N. A.

this, his honour the Chief Justice said, " when there is a claim 1803.
" for a total loss, and proof of a total loss, an average loss \%'~77r

. . W ATSOV

" out of the question." So in M'-Callmont and Boys v. Murga- ^nd
troyd^ decided in this court. Indeed it is useless to turn to Paul
cases for this principle; the books are full of them; and if it were '"•
not so, why have not plaintiffs, in the numberless cases in which
they have failed for want of abandonment, attempted a partial
loss. But a case in point is Bischoff'x. Agar, {ct)

Shippen C. J. The action is brought for the sum under-
written in the policy, to wit, for 1000 dollars, as for a total loss;
the jury have found a verdict for the plaintiffs for the sum of 740
dollars and 10 cents, as for a partial loss; the material question
is whether the jury could fmd as they have done.

Where any part of the thing insured is Icft^ and in that case
idone, the insured is bound to abandon to enable him to recover
as for a total loss; the only penalty for not abandoning is that
the assured must be satisfied with an average loss. Here it is
said there was something left, there was a spes reciipcrandi^
there was a chance of a reversal of the sentence of condemna-
tion, and that this chance should have been ceded to the under-
writers. The jur}' therefore might have considered this as an
average loss, that is to say, they might have estimated the spes
recttperandi and chance of a reversal of the sentence as equal
to the difference between the sum underwritten and the sum
found and obliged the insurers to pay the remainder as an
average loss. That a partial loss may be found in an action
l)rought for a total loss cannot be denied; but it is said that
where the demand is for a total loss, and a total loss in proved^
there cannot be a verdict for a partial loss, otherwise the neces-
sity of abandonment might in all cases be evaded by the jury's
being called upon and consenting to give a verdict for some
small matter less than the whole sum insured. If this should
ever be the case, it will always be in the power of the court to
prevent the evasion; but the case in 1 T. Rep. and some others
shew that a verdict may be found for a partial loss where a total
loss is proved as well as demanded, if the party had chosen to
consider it as such by an abandonment. And it is not compe-
tfnt to the defendant to say there is sojv.ethini:^ left for tin pur-

54 CASES IN THE SUPREME COURT

1803. pose of making an abandonment necessary, and yet that there

"T^~~~was not king left to make it an average loss. There seems to be

and no injustice done to the defendants l)y the finding of the jury-

Paul But it is said that although there are cases where the loss

^' would have been total and recoverable as such wheii the loss

N. A. happened, but which by subsequent events were become not
total, the insured by not making a seasonable abandonment
might be entitled to an average loss; " but where the loss was
** total originally, and continued so to the time of the demand,
" there can be no partial loss, but the insured by not abandon-
" ing will lose his right of recovering from the underwriter
'* either in whole or in part." The consequence of this doctrine
would be that the greater the loss the insured should suffer, the
less the insurer should pay. An insurance is a contract of in-
demnity for a loss, within the policy, and the law imposes no
arbitrary penalty upon either party, but proceeds upon just and
uniform principles: thus where the loss sustained is such as
that the assured by an abandonment might consider it as a total
loss, yet waits till it appears part of the property is saved, he
then loses his right of recovering as for a total loss, and must
look to that part of the property saved according to its value
for part of his indemnitv, and has recourse to the underwriter
for the remainder of the sum insured as an average loss. So
where the loss is such as might be considered as total from the
beginning, and continues so to the time of the demand, it is then
that the two kinds of total loss are to be considered; if the
loss is of that kind as to be attended with a total destruction of
the property, as being consumed by fire, or sunk in the sea, the
insured in that case may recover from the underwriter xv'ithout
any abandonment^ as there is nothing left to abandon; but if it is
said a capture and condemnation is not a loss of that kind, but
leaves a apes recuperundi in the assured, and therefore some-
thing is left, although only a chance, for the abandonment to
operate upon, what will be the effect of not abandoning?
Exactly the same as in the former case, where the loss must be
paid after deducting the value of the thing saved. So in this case
the loss must be paid after deducting the value of the thing not
ceded, which value is the estimated benefit which the assured
may receive from retaining the chance either of a recapture or
the reversal of the decree of condemnation. It is true this bene-
fit is not so easily calculated as where goods are saved and sold;

OF PENNSYLVANIA. 55

but the principle is the same; and where the jury from the clr- 1803.
cumstances of the case, and from their experience of the strength ^ir 7"

of the respective belligerent powers, and iht- probable injustice and
of the condemnation, have any data to calculate the chance of Paul
recovering back the property, and can reduce it to a fractional ""'
part of the sum insured, I see no reason why the value of that -v a '
chance may not be deducted from the sum insured, and the
assured recover the remainder from the underwriters, as in the
case of common average losses; for it is only the value of the
thing neglected to be ceded, which forms a deduction in any
case of loss, from the sum insured.

Yeatf.s J. "V\Tiere an insurance has been made, and the pro-
i^erty insured has wholly perished by some one of the perils
expressed in the policy, there can be no necessity for aban-
doning or offering to abandon; for there being nothing in exis-
tence on which the abandonment can possibly operate, it would
be highly absurd to declare that a ceremony vain and idle should
be practised, which could be attended with no benefit whatever
to either party. On this point may be cited 1 T. R. 613. 615.
2 Burr. 687. 1201. 1203. 1 Bl. Rep. 276. Park 161. Ifit rd. In
Great Britain, notwithstanding a capture and condemnation by
an enemy, the owner of the vessel will be entitled to have the
propert)- again on payment of salvage. But this was an effect
produced by the stat. of 29 Geo. 2. c. 34. s. 24.; and hence it is
that Lord Jllan.s-/ield says in 2 Burr. 695. tht Jus poatliminii in
1! n (f /atic/ conunues forever. The general law of nations must
govern us on this head, as it was considered in ilfai/ 1797, when
this capture took place; and I have always understood that such
' apture and condemnation by an enemy altered the j)ropertv.
If such capture and condemnation can be considered equivalent
to an entire destruction of the property in the present case, as
to the contracting parties, there can be no greater necessity for
m abandonment in the one instance than in the other.

But it has been objected that here the vessel existed at the time
of the demand for the total loss, and that the xpex rccuperatitli
was not wholly extinguished, inasmuch as appeals were allowed
from the Freneli court of admiralty in the IVe.st Indies to a supe-
rior tribunal. On this latter gjound my great difliculty has arisen.
iJccausc if the insured did not conceive there was anv chance

56 CASES IN THE SUPREME COURT

1803. of reversing the sentence of condemnation on an appeal, they
,,. oup-ht not to preclude the insurers from exercisinjj: their own

>V ATSON t> I '->

and judgment on the case, and should furnish them with the proper
Pavl documents to enable them to conduct the appeal. Nevertheless
- ^'" it cannot he denied that all the authorities concede to the in-
K. \. sured the election whether they will abandon or not, and that
they are not bound to make an offer of abandonment if any part
of the property exists. 1 T. i?. 615. If he does not abandon in
such cases wherein he might consider it as a total loss, though
partial in its nature, by declaring his early and unequivocal op-
lion and offering to abandon, he cannot by holding back, con-
vert the partial loss into a total loss. Fuller v. M'-Call. Nor can it
be denied that if a suit be commenced for a total loss, and a par-
tial loss be proved, such partial loss may be recovered therein.
2 Burr. 904. But it has been contended that where in such suit
a total loss is proved at the trial, no instance can be shewn of the
recovery of a partial loss. Admit this to be the case, still if no
authority can be shewn establishing a different doctrine, and no
injustice is done thereby, the plaintiffs recovering the damages
thevhave actually sustained v^^ithin one of the perils expressed
in the policy, I see no reason to set aside the verdict.

Smith J. In all cases the insured may choose not to aban-
don. Burr. 697. Park 162. 2d ed. 2 Bac. 157. 1 T. R. 615.
They are not bound to abandon; there never was a case in which
it was determined that they were; all the cases have said that
where they are entitled to abandon, if any part of the property
exists, they have the option whether they will abandon or not.
If the property existing amounts only to a shilling, the insured
may in an action for a partial loss, recover the whole amount
insured, excepting that shilling.

Now it is settled lav/ that if action be brought for a total loss,
if the plaintiff prove but a partial loss, he may recover as for a
partial loss. It is also settled law that the assured cannot recover
as for a total loss unless he cede or abandon all his right to the
underwriters. Park 161. 92. This right to abandon is certainly
generally for the ease and often a real benefit of the assured.
It is always troublesome, and frequently turns out to the loss
of the underwriter. He will therefore almost always prefer
pa}ing for a partial loss to paying for a total loss, and taking

OF PENNSYLVANIA. 57

he management of the existing property upon himself. It is 1803.
carcely ever in his power to manage it to so great advantage w^tson
as the assured can. and

The hope of recovering cannot be lost while any part of the Paul
property exists, and the assured need not part with the chance j U,
unless he pleases. If he does not part with it he has more diffi- jsf a.
culty in recovering than if he does; for on abandonment he has
only to prove the gross value of the vessel or goods, and the
loss, which is generallv easily made; but if he be content to
retain the chance of recovering any part, the proof to recover
on a partial loss is more diflicult to be made out. He must not
inly prove the value, but he must prove the amount of the inju-
n- done to every part, and the value of that part of it which is
in existence. If the assured choose to take this burden by not
abandoning when he may, he cannot recover for a total loss if
any of the property exists; and in estimating the amount of the
average loss the jury will make a due deduction for his chance
of recovering according to its foundation.

The cases in E-sp. Rep. 23 T. 1 T. R. 608. are substantlally
the same with the present. There the plaintiff might have reco-
vered as for a total loss had he abandoned in due time; so here.
There the plaintiff recovered as for a partial loss. What princi-
ple of law properly understood, what rule of practice was there
to prevent him from recovering for a partial loss ? The right to
recover for an average loss was not even called in question by
the counsel; ihcy properly contend and the court decide that
plaintiffs could not recover more than an average loss.

No hardship on the defendants as to the amount of the dama-
ges found, is suggested. " The defendants came prepared to
■' shew either that no damages liad happened.at 4II, or at least
*•' that damages did not happen to such a degi'ce as plainlill'
'' alleged in his declaration, or that they did not sign the poli-
" cy." Burr. 906, / . " It is an action of damages in which plaiu-
" tiff is to recover his damages according to his proof."

Did the plaintiffs gain any benefit, did tlie defendants lojie
any advantage by the recovery as for a partial loss, my opiniou
would be that plaintiffs ought not to recover; but I cannot, dis-
cover from any part of the argument that there is any benefit to
Uie plaintiffs or any disadvantage ro ti\e defeiulants.

I acknowledge that before I sgw tlur case 19 1 T. R. GOB. the
inclination of nn- mind was in favour of the defendants on this

Vf.r . r. H '

58 CASES IN Till-: SUP1?KME COURT

180J. point as a point of strict law, although I would not have signi-

T7^ ~"fiecl mv approbation otinsistiny; on it by the deftndants.

and Whtthcr the nolicc of and demand for a total loss be equi-

Pai I, valent to an offer to abandon; whether the refusal to pay on

, ^'' other grounds, does or docs not amount to a waiver of such
Ins. Co. „ . . . • - 1

jvj- ^ offer. It IS not necessary to give an opmion, because my opinion

is, on principles supported by cases, and there being neither

principle nor case to the contrary, that the verdict is right.

Brackenridge J. I am of opinion that the verdict should
stand, upon this principle, that under the circumstances of
this case there was not a necessity of an express offer to aban-
don. In the case of a total loss by sinking or burning, all spes
recuperandi is gone, or supposed to be gone, and to supersede
the n. cessity of an offer to abandon.

In this case of capture and condemnation, and as said by
counsel particularly a French condv mnation, the hope of reco-
very v.as but a bare possibility; it was ideal. The fact is, }t was
thought to be nothing; and it would have been a burlesque, an
insult, to talk of an interest remaining, or to make an offer to
abandon. This rebuts the presumption arising from the not
expressly offering to abandon, that there was an idea of retain-
ing a chance.

I admit there was an ideal interest to be abandoned because
the condemnation on appeal might be reversed, or the govern-
ment of the captured might indemnify, or that of the capturing
compensate for the spoliation; but in the public estimation there
was no hope, and the plaintiffs reasonably might have thought
there was nothing to abandon.

The notice of the loss and demand of payment would seem
in the first instance to be sufficient, and to put it upon the defen-
dants to shew that they had any wish to have the abandonment
made. The saying nothing was in fact a waiver.

I think mysi-lf on safest ground while going on the first point.
As to the other, that in a case of total loss, without an offer to
abandon, the insured may receive a part, the jury taking into
view and allowing or deducting for the chance of recovering
the possibility, it might seem reasonable; but the idea is new,
as I take it, in the books. Nor is it analogous to the law mer-
chant in the case of a bill of exchange. On the nt of notice
to the indorser of nonpayment by the drawee, it cannot be given

OF PENNSYLVANIA. 5^

in evidence, as superseding the notice or deducting for it, tliat 1803.
the drawer was worth nothing or a part of the sum. Watson

Have we a right to put the insurer in the power of the jury and
as to the value of his chance, which might have been aban- Paul
doned.'' I think not. He has a right to be the judge of it him- ^'*
self. There is no average of this kind in the books. The bare tsj a^
o possibility in this case rebuts the presumption that the insured
meant to retain the chance.

The not offering in express terms the abandonment is waived
by the silence, and the probability is that it was omitted from

the ignorance of the insured.

Judgment for the Plaintiffs.

Hutch EsoN aicainst Johnson. Wednesday,

*-* Sejiteniber

TN this case .S". Levy for the defendant obtained a rule upon ^ ^^^j^ ^^
-*- the plaintiff to shew his cause of action, and why the U«'fen-slie\v cause
dant should not be discharged on common bail. The rule was *'^,^^ j.|.""^.'j^^
rettirnable to Friday the 9th, but was then enlarged to this day, up';n the
when Moylan the attorney of the plaintiff upon record, who had [|^^y"i,'c.y ^
been unable to communicate with his client, objected to the ser-
tIcc of the rule, which had been made personally upon him, and
not upon the plaintiff.

Per Curiam. The practice of this court is that a rule to shew
cause of action is well served upon the attorney in the suit. It
is not necessary that service should be on the plaintiff personal-
ly; but if he lives out of the state, the court under proper cir-
cumstances will grant time. As such circumstances have been
suggested here, the court make the rule absolute unless cause
be shewn during the term.

Lessee of the Trustees of the Seliool in Lower Dublin '^hnrBday,

Sciitcmljtr

(ifrmnst Paul. i^tii.

THIS ejectment was referred under a rule of court; and the ^"'^'"I'''"""
r -111 trt a report

referees awarded that the plaintiffs should recover the „r referees

strip of land in controversv, with (k/. damages and Or/, costs. "'"^'^ I"""^

' _ • . ' oiit some

Exceptions to the report were filed by the defendant as follows: plain mis-

tuke in fact
'jr in law, ollierwise the court will not investigate the merits ol'thc rcpor';.

Paul

60 CASES IN THE SUPREME COURT

1803. !• Because it appeared before the referees that the defendant

Lower" ^"^ those under whom he chiimfd had been in possession of the
Dublin premises in controversy, and had their fence around the same
School from time beyond the memory of any person now living; and
that the lines called for by the conveyance of Richard Thomas
to Samuel Thomas on the 8th o{ yaimary 1745, under whom
the defendant claims, take in and include the premises in
controversy.

2. Because the referees in forming the award undertook
M'ithout any evidence to shorten by six perches the last course
but one of the defendant's land, and to lengthen by five perches
the last course thereof.

3. Because the referees had no evidence whereby to fix the
lines and boundaries of the premises in controversy in favour of
the plaintiff.

The cause was now called on for argument upon the excep-
tions, when M. Levy for the defendant moved a postponement
upon the ground that one of the referees, whose attendance he
was unable to procure, was material to shew the truth of the
exceptions.

Raxvle for the plaintiff objected, because from the very nature
of the exceptions the referees could not be examined without
opening the whole ground of controversy. The exceptions go
to the whole matter in dispute, and they do not point out any
circumstances which shew a plain mistake in fact or in law;
without which the objections must be confined to the face of the
report, which in this instance is unexceptionable.

Levy in reply cited Pr'ingle v. M'-Clenachan^ (a) where the
court went out of the report to examine the merits. Evidence
must be heard to ascertain whether there is a plain mistake or
not.

Shippen C. J. A plain mistake must be stated in the first
instance; and if evidence must be heard in order to prove it, the
court will listen to it. But here no plain mistake is pointed out,
and therefore we would not hear the referee if he were present.

Per Curiam. Report confirmed.

(«) 1 DalL 486.

OP PENNSYLVANIA. 6.C

1803.

.-- Thursday,

303 M'Laughlin against Scot. September

12 ^"T^HIS cause was referred under a rule of court, and the An award of

B » -» > costs IS O'OOu

1* -■- referees awarded for the plaintiif the sum of ninety-one althouj^h the

208 dollars thirty cents, and costs of suit. The rule contained noP''"cipal

provision that costs should abide the event of the suit, and the ^j ^y the ro-

prothonotar}^ taxed the plaintiff his lull costs. Wvcts would

not carry
. . , , r 1 costs if foujd.

S. Levy for the defendant now insisted that the act of 25th by u jury.

September 1786, which provides that if any plaintiff shall bring

or commence any suit or action in the Supreme Court and shall

not recover thereupon more than 50/. he shall not be iillowed

any costs, was fatal to the plaintiff's claim, in the present case;

^or the act extended to all modes of recovery, as well by award

of referees as by verdict of a jury.

Burd^ contra.

Per Curiam. It has been over and over again decided that
the party takes costs if the referees give them to him; provided
their authority is not limited by a special agreement, (ci)

b ot

Rowley against Bkown, administrator of Webb. Monday,

Decombti
TN this case an execution was levied upon the real estate of 7^0 shenfT
-■- Webb^ consisting of three tenements and the lot of ground <"a""ot nuke
upon which they were erected. The lot was so divided in point s_.(le „{• ,1^.

of fact, that a portion of it was used with each tenement; but^'V'"^ panels

1 11 /• 1 1 1 1 I 1 "* piopcrtv

an entire ground rent was payable out or the lot by the deed wliic li hchvut,

under which Wvbh held, and there had been no apportionment ^=''^'^" '" <^c-

, , , .,-,, , . , , cut ion. Be

subsequently agreed upon. 1 he property being coiul( nmedjsiionidsdl

the sheriff sold the wlifile in one bodv. *'"-'" *^'*

tnutly.

Ra-wle for the defendant obtained a rule to shew cause why
the sale should not be set aside uj)on the ground that the parcels
of property taken in execution were distinct, and should have
been %u\i\ separately.

(a) Kydon Avsards 134

62 CASES IN THK SUPREME COURT

1803. ^'^(^ ^^^ ^^^ plaintiff" now procecdtd to shew cause; ani

*• after setting forth the facts as above stated, he argued that as

there was an undivided ground rent issuing out of the pro-
Brown. perty, it was in fact but one parcel. That it was impossible lor
either sheriff" or plaintiff" to say in what manner the gi-ound
rent should be apportioned, without which there would be such
an uncertaintv as to the thn^g sold, that the defendant would
rather lose than gain; and further, that the sheriff" was not
authorized to say even what portion of the lot should go with
each tenement.

Raxvle in reply, said that it was every day's practice to sell
distinctly tenements and lots on which there was an unappor-
tioned ground rent; and to leave the apportionment to subse-
quent arrang! ment by the purchasers. The division of the lots
in point of fact furnished sufficient boundaries to each portion;
the)' should have been sold as they were then known and occu-
pied. In every case where parcels of property can be sold dis-
tincdv, the law for the protection of the debtor prohibits a
lumping sale.

Per Curiam. It is the rule of this court to disallow in every
case a lumping sale by the sheriff" where from the distinctness
of the items of property he can make distinct sales. It is essen>
tial to justice and to the protection of unfortunate debtors that
this should be the general rule; any other would lead to the
most shameful sacrifices of property. There may be exceptions,
- . but the purchaser must bring himself within them. The present

case is not one; the tenements and lots were here sufficiently
distinct both in law and fact, and there was no reason for deviatr
ing from the common practice.

Rule absolute.

OF PENNSYLVANIA 6^

1803.

^ ' / / ' "^ 6 ^

^\ % M'C u L L o u G H administrator of P a r l a n d against j^^^^^er
|j5 Young. i^th.

IN this case it was agreed by the counsel to submit a single Letters of
question to the consideration of the court; namely, whether j'j^J^"^^^^^^^^
the plaintiff as administrator Sec. could maintain his action under seal
against the detV.ndant by virtue of letters of admmistration ^^^^^ ^^.^ ^^

granted to him in the state of MariiloJid. sufticient

° -^ authority to

, . P , f. maintain ill

M. Levy for the plaintiff read the hrst section ot the act ©taction in

1705, which among other things provides that all letters of ad-^^is state

ministration granted oitt of this province being produced here

under the seals of the courts or offices granting the same, shall

be as sufficient to enablj the administrators by themselves or

attomies to bring their actions in any court within this province,

as if the same administrations were granted here, and produced

under the seal of the register general's office of this province.

1 St. Lmva 54. He said that the language of this act was too

unequivocal to admit of an argument, and that to deny the

plaintiff's authority to sue as administrator, was in fact to repeal

the law.

Hof)kinson for the defendant referred to the case o{Grccmeetal.
V. Harris (a) decided in 1 789, in which this court held that let-
ters of administration granted by the Archbishop of I'ork were
not a sufficient authority to maintain an action in this state. He
contended that this decision was an authority for asserting that
the law of 1705 was in this particular obsolete. That it was
impossible to untlerstand the words oi/t of this- province mihQiv
literal sense without overthrowing Grccme v. Harris^ and there
was no warrant in the law for understanding them in any other
sense. It must therefore be presumed to have been the opinion
of the court* that inasmuch as the law was passed when this
state was a Vviy insignificant colony, and when convenience
may have justified the comity that was shewn to foreign letters
of administration, the reason of it ceased when v. e became an
independent government, and the; amount and variety ol per-
sonal property had greatly increased. It is in opposition to the
law of some of our sister states,' and therefore wants recipro-
cal 1 yj,7//.'i'»<'

64 CASES liN THE SUPREME COURT

1803. "^'^^ J It must frequently produce collision between adniinistra-

',. ,, tors of diilerent states; and it proceeds upon a misconceiJtion ol

LOUGH ^^^' '^ture of letters of administration, which are a mere local

V. authority from an officer of limited jurisdiction. One inconve-

YouNG. nience which must result from it is monstrous; — the persona)

property of an intestate in this commonwealth, and which is the

proper fund for pavment of his debts here, may be taken away

and applied bv the law of another state in direct hostility to the

interest of our own citizens. This certainly will be the effect

of acknowledging letters from Delaxvare^ where an intestate's

creditors living within that state are first satisfied.

Per Curiam. The act of Assembly referred to has uniformly
been considered not to extend further than to the provinces in
this country at the time the act was passed, and Grtcme v. Har-
ris turned upon that ground. At the same time it has been as
uniformly understood both before and since the revolution that
letters of administration granted in a sister state arc a sufficient
authority to maintain an action here; and such has been the
practice without regard to the particular intestate laws of the
state where they have been granted. There may be indeed great
inconveniences from the law, but it lies with the legislature to
remedy them. We are of opinion with the plaintiff.

I lb 64

' 93r383

14s r 301

====^^ ir 123'

_4 34j

Tuesihj, Cramond uiid othei's, Executors of Cay surviving
Decenbcr partner of Clow, against The President, Directors
aixl Company of the Bank of the United States.

20th

A. isndebt- 'HT^HIS was a scire facias upon a judgment obtained in Sep-
edtoB. ami X tember 1801, against the defendants as garnishees in a

C. puitncrs . i i i- n •

111 tnidc who foreign attachment against James Brorvn; and the following

issue a p)- j.ggj, ^^.j^g stated for the Court's oi>inion:

reigii attach- '

ment f.gainst

his effects in " On the 19th of August 1 793, David Cay and Andrew CloWj

D^Af!^ef)he " ^^'^^° ^^^^ carried on business under the firm of Andrew Clow

deathiii' B. _ ,

and C the CTcecutors of C. who was surviving partner, obtain judgnient against the de-
fendant and the garnishee. B and C. were liie indorsers of a note whicli was discounted
by D. and which fell due after their death and was protested for nonpayment. The debt
to D. by B. and C. cannot be set off agninst tlic debt due by D. as garnishee of A. to C's
executors. A.'s debt upon Die dealh of B. and C became vested in their creditors gene-
rally, whose rii^hts could not be chan^^cd by any subsequent proceedings between the exe-
cutors, and garnishee.

OF PENNSYLVANIA. 65

" and company, indorsed a note drawn by Henry Darrach^ 1803.
" bearing that date for the sum of 852 dolls. 88 cents, which Cr^moj^^
" note was discounted by the defendants, and the amount paid 7,,
" to the indorsers. Before the note became due the drawer and Bank U. S.
'* indorsers died, and notice of nonpayment was duly given to
" the executors of the surviving partner David Cay."

"On the 11th April 1793, Andre7v Cloxv and David Cay
" laid a foreign attachment on the property of a certain James
" Brown^ in the hands of the defendants; and judgment was
'' obtained thereon on the 14ih June 1794, in the names of the
" present plaintiffs as executors of David Cay surviving partner
" &c. A writ of inquiry was issued and the sum of 25,543/. 2*.
" Zd. was found due to the plaintiffs, upon which there was final
"judgment. A scire facias then issued against the defendants
" as garnishees returnable to Septcinber Term 1797, and upon
" the 10th September 1801, a verdict was found for the plain-
" tiffs for 3354 dolls., and on the same day a judgment nisi.''''

*' The defendants as garnishees of Ja^nes Brown are in pos-
" session of tliirteen shares of bunk stock, and of the dividends
" thereon arising and accruing since the 1st July 1801, which
" are subject to this attachment. They have received payment
" of 284 dolls. 27 cents, being a dividend of the estate of Henry
" Darrach the drawer of said note."

" The question for the opinion of the court is, whether the
" deftiidants in this action are entitled to set off against the
" demand of the plaintiffs in this action the balance due on the
" said note, with interest."

It was argued by E. Tllghman and Ingx-rsoll for the plain-
tiffs, and by Raxvlc and Lewis for the defendants.

For the plaintiffs it was contended that by the death of Cay
surviving j)artner of Clorv, the debt due by Brown to Clow and
Cay vested in the executors of the surviving partner for the
Interest of the creditors generally; among whom the bank could
come in ox\\y pro rata according to the quality of their debt.
Cloxv and Cay died before the note with their indorsement fell
due, before judgment against the garnishee, and therefore
before there subsisted between them and the bank any debts
which could give rise to the question of set-off. But at their
death all their property both goods and credits, and among
others the right to Broxvn^s money, became assets in the plain-

Vor. I. I

(iO CASKS IN TH1-: SUPREME COURT

1803. l^i'^s' Hiuuls, l)ound by our act of distributions to flow in particu-

T! lar chiuincls to the creditors, and not subject to any chancre. If

7,. the claim of the defendants is allowed, the rights of the credi-

Bank U. S. tors are so far devested, and the bank, a simple contract creditor,

will take precedence of even higher debts.

But further, the question of set-oflF cannot occur where there
is no mutuality of debt between the parties. The claim by the
plaintiffs is not of a debt due by the defendants to them^ but to
yaincs Brown; and the ol>ject of the defendants is not to defal-
cate a debt due to them by James Broivn^ but by t\\^ plain tiffs i
of course the set-offhas no aspect toward the debt which it would
diminish. The debts are not mutual, they are to and from,
diffeivnt persons, the one is collateral and the other direct; and
in such a case a set-off was never heard of. If this were prac-
ticable, a garnishee might have a double set-off, one against the
deff ndant in the action, and another against the plaintiff, a cir-
cumstance equally novel.

Consider the operation of our foreign attachment law. Its
object is to compel the defendapt's appearance; and when that
is obtained within the period allowed, all intervening acts with
the garnishee are avoided, and he is completely discharged.
1 St, Laws 60. Act of 1705., sec. 2. If then the garnishee estab-
lishes this set-off upon the scire facias^ and the defendant after-
wards enters special bail, the set-off is defeated, and the defen-
dant may recover his whole mone)' from the garnishee. The
set-off is to be effectual or not according to circumstances; and
this clearly shows that it does not partake of the nature of a
legal set-off, which once made is permanently good. So after
execution awarded, the plaintiff is to find security that if the
defendant in the attachment shall within a year and a day come
into court and disprove or avoid the debt recovered by the
plaintiff against him, he shall restore the goods by him attached,
or so much thereof as shall be disproved or avoided. Sec. 4. If
this set-off be good, he may recover but one half of the goods
attached, and his security on the execution will nevertheless
bind him to restore the whole in case the whole be disproved.
To be sure, in a case where the sum set-off was completely due
by the plaintiff to the garnishee, he would pay no more than was
due from him to both parties, if he paid the whole sum dis-
proved; but where a question of assets, as in this case, is invol-
\ed in the sum due to the garnishee, it is very clear that he

OF PENNSYLVANIA. 67

might be compelled to pay more than was due from him; and 1803.
this affords a strone: argument that a set-off with such conse- "TT"
quences can never be allowed. x".

The language of the acts of Assembly is equally cogent. The Bank U. S.
plaintiff is entitled to the whole amount at the time of the attach-
ment due to the defendant by the garnishee; and if the gar-
nishee does not find security for its being forthcoming, whether
goods or money, the sheriff must take it from his hands and
secure it himself. Could a plea of set-off against plaintiff affect
the sum thus taken from his hands? And can his giving secu-
rity for it alter the case of the plaintiff? No plea by garnishee
to the scire facias will be good, except what is tantamount to
nulla bona; and accordingly all the interrogatories are directed to
that point by the act of Assembly. 2 St. Laxvs 734. sec. 2.

The defendants are too late with their demand of set-off on
the present scire Jaci as. The first scire facias^ which was follow-
ed by the judgment in September 1 80 ! , was that upon which the
garnishee should have claimed his right. The present scire fa-
cias is brought vipon the judgment which established the right
of the plaintifls to thirteen shares of bank stock, to recover the
dividends since accruing; and no plea can be sustained in answer
to the present scire facias^ which could have been offered pre»-
vious to the judgment.

For the defendants. It is necessary to shew that we are in time
before we proceed to the legality of our demand. It is perfectly
clear that the defendants cannot plead to the scire facias what
they could have pleaded to the first judgment. But it is proper
to accompany this position with an explanation; they cannot
plead to this scire facias that which will defeat or aff'ect the first
judgment; this is the rule, and we are perfectly within its pro-
vision at this moment. The present scire facias is not to exe-
cute the old judgment, but to get possession of a nciv property,
the dividends since declared; and our plea is not to affect that
judgment, but to defend ourselves against a second demand
accruing since, and not depending on the first scire facias. But
a right to set-off cannot be impaired by any act of the plaintiff;
he cannot force us to set-off at any time, Bas/terville v. Brown;
(u) and this being to every intent a new action, we arc in time

(n) •? Jinrr. 1?30

68 CASES IN THE SUPREME COURT

1 803. upon every gound. The omission of the bank in the first instance

Ck\mond ^^'^^ ^ mere oversight; and there is nothing in precedent or prin-

V. ciple against its being cured at this day; certainly nothing inprin-

Bai\k U. S. ciple, for it is analogous to the known case of a tenant holding

his landlord's note; and it is no hardship upon the debtor, for he

has sufiered nothing by the omission, as he would, if it were to

touch the original judgment.

[Yeates J. This point has less weight than at first it appear-
ed to have, since the present is a new claim for dividends, to
which there has been no opportunity of answering until now.J

As to the general question. Set-offs are favoured by law. Col-
lins V. Collins, (u) They are instituted to prevent circuity of ac-
tion. 1 St. Laxvs 65. The objection that a new distribution of
assets would be produced by allowing the set-off, has been made
in another case, and overruled. Broxvn v. Holyoke. (J)) If there
be mutual debts subsisting between the testator and I. S., the
executor will be indemnified in setting off I. S.'s debt against
his testator's, though they be of different characters. Priority
of payment must have a relation to the source of payment— the
assets; now assets in this case are only the balance due from
a debtor to the testator, cross claims deducted. If this objection
is invalid, it then returns to the case of a plaintiff in full life;
and surely in that case a court will not allow the plaintiff to take
money from the hands of his creditor who happened to be a
garnishee, and turn him round to a suit on the ground of a debt
which without a single inconvenience could be adju>sted by
set-off.

Mutuality is necessary to a very slight degree. Slipper v.
Stid.stonc. (r) Buying the plaintiff's paper before action brought,
entitles the defendant to set-off. Primer v. Kuhn. (d)

Cases of double set-off, to which it is said there is nothing-
similar, are nevertheless very numerous. A defendant may-
have a set-off in his own right, and also in the right of his
deceased partner. Slipper v. Stidstone. French v. Andrade. {e)
If he deals with a factor who conceals his principal, and is
afterwards sued by the principal, he may set-off a debt due by
the factor, and at the same time one due by the principal.
Rabone v. Williams; (J") and in like manner the assignee of a

(a) 2 Burr. 825. U) 1 Dall. 452.

\b) Bull. N. P. 179. (<•) 6 D.iStE. 582.

OF PENNSYLVANIA.

bond is liable to two set-ofFs, one by the original obligor, and ts03.
another by any particular defendant. '~,

rr.1 • r L 1 1 • -1, VvKAMOXD

Ihe operation or the attachment law is unquestionably ^,
favourable to set-off. By the judgment in the foreign attach- Bank U. S.
ment, the plaintiff becomes creditor of the garnishee by sub-
stitution, and all the legal consequences accordingly attach on
him. How is it possible to sepai-ate from this number the right
of set-off? The security under the law can work no injury; for
it is a security to refund; and all that can be demanded under
it is the amount received in virtue of the attachment. And if
no plea to the scire facias be good except one which is tanta-
mount to nulla bo?ia, then it is impossible for the garnishee to
plead a release; a position which cannot be maintained.

Yeatf.s J. Set-offs are agreeable to reason and justice; and
in actions by or against executors, where there are mutual debts,
they are allowed with gi-eat reason. But this mutuality of debt is
the essential circumstance in a set-off; and was there any thing
of the kind in this case? The debt of the bank was due to
Broxvn^ it owed nothing to Cloxv and Catj at the time of their
death. The object of a foreign attachment is none other than
to get the party's appearance by attaching his property, and it
would produce great confusion to turn it to the purpose of
settling collateral accounts like this. To allow the defendants
to pay themselves in this way, would be an injustice to the other
simple contract creditors of Clo7u and Cay^ whose right to this
debt from Broxvn to Clotv and Caij vested in them generally
upon the death of the latter, and could not be diminished by
the subsequent act of the defendants; it is upon this point that a
majority of the court rely in giving judgment for the plaintiffs.

Smith J. The ground I go upon is that the money was fixed
as between executors and garnishee the instant the testator
CloiVy surviving partner of Caij^ died. I give no opinion upon
die point of mutual debts and set-off.

Brackknkidgi: J. I am of opinion that if judgment had
been rendered against the gtu'nishee before the death of Cloxv
and Caif^ so as to have made it a debt of the garnishee's to them,
then the set-off might have been made; but the instant they
died, the right to the whole of Broiv)i's money vested in the
creditors generally, who became thereby entitled to its distri-
bution for their benefit.

Judgment for Plaintiffs.

^'1

/W, /' • ' (ASES IN THE SUPREME COURT

1803. «»r

w,:ci„csd„y, 'Yi^c President, &c. of the Delaware and Schuylkili,^* ■!■

December . . i ^ ^i

21st. Canal Navigation (Z^r«";/i/^ San soM. /// y^

Where a T]vj tj^jg cause the following case was stated for the opinion of

pcnaltv 11.13 I 1 y^,

for itsenil to "^ the Court:
insure the

of the prin- " '^^^ legislature of Pcnnsylviviia^ by an act passed on the
cipal obliga-" 10th April 1792, entidcd ' an act to enable the Governor of

tion, it does ., , i i • r t ■

not destroy the commomvealth to nicorporate a company tor'opcning a

It. The sub- « canal and water communication between the rivers Dela-

scribers to

the stock of " ^t"?''^ and Schuylkill^ and for other purposes therein men-«

the Dela- u tioned,' appointed David Rittenhouse and others, commis-

Avare and . i i r i i • i • r

Schuylkill " sioners to do and perform the several duties theremafter men-
canal sign- tt tioned; and amone other thinc:s directed that the said com-
ed an agree- . . , i i , ,

ment to pay niissioners should procure a book or books, and therem enter

20U dolls, tor ct ^^ follows: ' We whose names are hereunto subscribed do pro-
each share . . r i
as the same " rnise to pay to the president and managers of the Delaxvare

^'Yi^Jf J^'^ " ^"^ Schuylkill Canal Navigation the sum of two hundred

The act of " dollars for every share of stock in the said company, set

Incorpora- u opposite to our respective names, in such manner and pro-
tion autho- * ^ ^ ' , ' . * ,

rizes the " portions, and at such times as shall be determined by the said

catuor'' *°" president and managers in pursuance of an act of the Gene-

ments, and " ral Assembly of this commonwealth, entitled, 'An act to

pcnaltv of 5 " '^"^t>le the Governor of this commonwealth to incorporate a

percent, per" company for opening a canal and water communication

defaulters'""*' between the rivers Delaxvare and Schinjlklll,'' and give notice

and says, " of the time and place where the said book or books would be

the penalty " °P^^ ^^ receive subscriptions of stock for the said company;

shall amount" which was accordingly done.

paid In'^^he " ^^ ^^^ ^^Y °^ ^" ^^^ same year, the defendant

share shaU " subscribed his name to the writing entered as aforesaid in
Held that " °"^ ^^ *^^ ^^^^ books, for five shares of the stock of the
the company" said compan}'.

the^forfei-'^ " ^" ^^^ same day a certain Thomas P. Anthony in like

ture, and " manner subscribed his name for five shares of the said stocky

sonally upon " ^ certain John Stillc for five shares of the said stock, a cer-

the agree- " tain John Muyhin for two shares of the said stock, a certain

" Robert Bully ^ jun. for two shares of the said stock, and a cer-

" tain John Holland for one share of the said stock, which said

" John Stille, John May bin, Robert Bully and John Holland

OF PENNSYLVANIA. 71

*^ afterwards severally transferred the said shares by them re- 1803.
•^ spectively subscribed, to the said Thomas P. Anthony^ who ^ ,

on the day of February^ in the year of our Lord 1794, Company

transferred the saine together with the said five originally "J'-
subscribed by him to the said William Sansom; which said Sansom..
several transfers were all made in the manner authorized by
the seventh section of the act hereinbefore recited.

" The said William Sansom did pav one or more instal-
ments, or they or some of them were paid by the persons of
whom he purchased, as above stated.

" The whole amount of the two hundred dollars subscribed
for each share has at different times been called for in instal-
ments in the manner directed by the aforesaid act.

" Question I. Is the said William Sansom liable to pay the
amount of his subscriptions, yet remaining unpaid, on the said
five shares originally subscribed and yet held by him, together
with the usual legal interest thereon, or with the penal interest
given by the tenth section of the aforesaid act? Or can the
corporation only forfeit and sell the said shares, in the manner
directed by the said section ?

" Question II. Is the said William liable to pay the amount of
all the instalments yet unpaid, with the usual legal interest
thereon, or with the said penal interest, on the said fifteen
shares transferred to him as aforesaid, or only such of said
instalments as became due after the transfer of the said shares
to him? Or can the corporation only forfeit and sell the said
shares in the manner prescribed by the said act?"

" If on the foregoing statement of facts the court shall be ot
opinion in favour of the plaintiffs, then judgment to be entered
for the plaintiffs, the amount to be settled by the parties. If
the court shall be of ojiinion in favour of defendant, then judg-
ment to Ijc entered for the defendant."

The 10th section of the act is in the following terms, " That
the said preside nt and managers shall have power and autho-
rity from time to time to fix the several sums of money
which shall l)e paid by the subscriber or holder of every
share of the stock of the said Company, in part or for the
sum subscriljed, and the time wh{ n each and every dividind
or part thereof shall be paid, and the place where it shall b<

2 CASES IN THE SUPREME COURT

180r». " rorcivtd, and shall give at least thirty days notice In three of

X'.

Sansom.

(ji^T^i *' the public newspapers published in the city o{ Philadclp/iia as
Cumpany. " aforesaid, of the sum or dividend, and the time and place of
" receiving the same; and if the holder of any share shall ne-
" gleet to pay such proportions at the place aforesaid, for the
*' space of sixty days after the time so appointed for paying the
*' same, evciy such shareholder or his assignee, shall in addi-
" tion to the dividend so called for pay after the rate oi Jive per
*' centum for evert/ month^s delay of such payment; and if the
" same and the said additional penalty shall not be paid for
such space of time, as that the accumulated penalties shall
become equal to the sums before paid for and on account of
*' such shares, the same shall h^ forfeited to the said Company,
*' and 7nay and .shtdl be sold by them to any person or persons
" willing to purchase, for such prices as can be obtained there-
" for." 3 St. Laxvs 280.

It was argued by Morgan and Ingersoll for the plaintiffs, and
by 31ilnor and Raxvle for the defendant.

For the plaintiffs. The remedy of the Canal Company is not
confmed to the forfeiture authorized by the 10th section. 3 St.
Larvs 280. There is a positive unconditional promise by each
orrg-inal stockholder to pay two hundred dollars for every share
subscribed. It is a promise made unconditionally before any
corporation existed. Without such promise no plan could have
been concerted; the penalty would operate to distress the -punc-
tual and to release the defaulters. The canal was an enterprise
of such vast magnitude, and so entirely useless without com-
pletion, that any other object in framing the terms of subscrip-
tion, and the sections of the act, than that of exacting the whole
sum, would have been folly.

The forfeiture is given as a security to the general powers
of the corporation; as a mode of compelling under certain cir-
cumstances a more prompt payment of the instalments, than
by the process we now adopt; as a means to enforce without
merq-ing- the original obligation.

The rule of Pothier in his treatise on obligations is the true
and reasonable rul'.% " When the penalty has for its end to in-
*' sure performance of the principal obligation, it does not de-
" stroy it." 1 Oblig. 328. Where a penalty is intended merely to

OF PENNSYLVANIA. 73

secure the enjoyment of a collateral object, the enjoyment of 1803.
the object is considered as the principal intent of the deed, and 7; ~T
the penalt>" only as accessional. Sloman v. Walter, (a) Equity Compai^y
considers the penalty only as a collateral guard to the agree- v.
ment, which still remains the same, and unimpeached by the 2)Ansom.
parties, providing a y)^/7/zer remedy at law for the performance.

1 Fonbl, 141. Loxoe v. Peers. (^) 2 Poxv. on Contr. 136. How-
ard \. Hopkins, (c) 3 Bl. Cow. 434. Parks v. JVilson.(d) 12 Vin.
204. />/. 3.

The transferee is in the same situation by this act, as the
original subscriber; betakes the share cumonere. 3 Woodes. 87.

2 banv, Ab. 238. G Finer 463.

For the defendant. This case turns upon the construction of
a statute by the common rules ; and which, inasmuch as it is
a particular statute, cannot be construed beyond the letter.
Threadneedle v. Lynam. (e) Litt. Rep. 247.

Every contract, whatever may be its expressions, must be
expounded according to the intention of the parties. The inten-
tion must be draMn from the whole instrument; and references
to and recitals of other instruments make them part of, or in-
corporate them with tiie principal instrument. 2 Saund. 412.

Where the penalty is intended as a collateral security, the
principal obligation is not waived; but this is not our case. The
contract according to the first section is good for nothing unless
it refers to the act; it is witliout oi)ject, without consideration,
without parties; and in addition to this, there is a clause of di-
rect reference contained in the verv body of the contract. I'iie
error lies in separating tlie agreement from the law; the contract
is then taken ;is a distinct engagement, and the forfeiture as a
distinct penally; but wlien considered together, the different
sections of the law are like so many paragrai)hs in a will, which
courts will so mould as to get at the intention; and the forfeiture
is then seen to be the very penalty of the contract, and tlie only
one.

There is in the first place no di'.crrlion left to the company
whether they will or will not forfeit the shan s. Tiie forfeiture
^'^ peremptory; '' the same shall be forfeited." It takes place ipso

(rt) 1 Bro. tup. 418. (c) 2 Atk. 371. (f-) 2 M^'l- 57

(t) •; Buir. 2228. (</) 10 Mod. .519.

74 CASKS IN Tin: SUPREME COURT

1803. facto u))on cklinqiu-nry; tlitre is no iiiqm st, no puljlicallon prc-

Canal paratorv to it. Can thr legislature liavf intended this as an ad-

Q:'nipany ditional penalty, vhen at all events it must be inflicted? Is it

t, ^' alternative when there is no choice? It beino- the duty of the

Sansom. . , , , r r • ? ••I

corporation to consider these shares as lorieited, an omission by

them cannot alter the case ol the subscribers, who are by the
tenth section completely discharged. A remedj' given by statute
must be pursued, particularly by corporations, the very creatures
of statute. K'nk \. Noxvill. (a) Rex v. Croke. (b) The applica-
tion of s/ia/l to the forfeiture, and of shall and may to the sale,
very clearly shews the intention of the legislature.

The forfeiture is not intended to enforce payment^hwt it is to
destrov his right to hold the share, and therefore discharges his
obligation. It is in the nature of a liquidated satisfaction^
vhich cannot be exceeded or waived. Rolfe v. Patterson, (c)
1 Fonhl. 142.

The act says that Sansom is not a stockholder; the corporation
say he is; and the court would repeal this section of the charter^
if they should coincide with the corporation.

[Smith J. If the penalty goes to themselves, cannot they
remit it?]

We conceive not. They have no power by a bylaw to ex-
cuse what by the articles of their constitution it is compul-
sory upon them to exact. But if he is a member of the corpora-
tion, their general authority does not extend to suits against
their own members as such. They must have the power
spcciallv granted.

As to transferee^ he has not promised either expressly or
impliedly. By the seventh section he takes the shares subject to
paijments due and to groxv due. and nothing further.

In reply, the obligation of the transferee was given up. But
the power of suing its own members was said to be incidental
to every corporation; and moreover that at the time of making
the subscription, there was no corporation, but individuals to
whom the corporation succeeded.

The question of penal interest was scarcely touched upon in
the argument, as it seemed to be acknowledged that it was a
mere prelude to forfeiture, and could not be exacted under the
bond.

(<i) 1 Z). s^ £. 1 i 8. {b) Coixp. 26. (c) 6 £ro. P. C. 4^0,

OF PEXXSYLVANIA. 75

The opinion of the court was delivtred by 1803.

Yeates J. The court have no difficulty in this case. The Canal

terms of subscription must no doubt be taken with the act at Company

larjre, but there is nothing in the act to annul the unconditional ^ ^'"

7 -jiiii-r • T-u Sansom.

and express promise demanded by the nrst section. 1 he power

given to the companvbythe tenth section is merely discretionary;

the penalty is in favour of the company, it is intended to enforce

the payment of the subscription, and they may waive it as they

have done in this case. As to the original shares then, there

must be judgment for the plaintiffs fur the sum remaining due,

with interest at six per cent.

The shares which the defendant holds as transferee stand on

a different ground; as to them he has given no express promise

to pav, and the act has made no other provision than that the

shares should be aiibject to the payments.

SiiiPPEN C. J. was not present at the argument.

Johnson against Chaff ant. Saturday,

},^ 78 December

■^^il«( T J. 24th.

In Lrror.

THIS was a writ of error to the Common Pleas of Cheste}-;^^^^^'^^'^ 'san
and the error assigned was that the declaration, which washy'aum-nies

in dtbt^ did not state the obligation to be in any certain sum,^^'"^^' t<»

^. . anieml.coui^t

but left a blank tor it. ^vill jrive

fun \' t > f f k

Ross for the defendant in error moved for leave to amend ;ui,en(l af-
upon the ground of an agreement between the attornies below ^^r error
before error brought; of which he produced a certificate from ^nd witl'iovi!;
them. <:osts.

JlfKran (attorney general). The agreement was never com-
municated to ine, nor is it on record. The plaintilf below should
have seen to the amendment; and if leave is given now it ought
to be upon payment of costs. Rees v. iMorifan. Qi) Pvtric v.
FlanJiay. (Ji)

Per Curiam. You arc bound by the agreement of the attor-
nies below. We do not proceed upon tin; common ground of
amendment, but upon the agreement. The amendment mav
therefore be made, and ivithoiit costs,

(a) 3 I), b* F.. ;',49. (j>) :; d. {j* j^;. r,-;?

CASES IN THE SUPREME COURT

1803.

, r ! lb '761

neceScr Vanlear agaiust Vanlear. -:^|

26lh. "

The record T^HIS was an appeal from the Circuit Court of Chester

of tlie pro- X county. The record was filed in the office of the Prothono-

oran"appeait^iy ^^ ^^^^^ court before ten o'clock in the morning of the rth

{romi\\xi cw- St'ptevibcr 1803, which was the fust day of September term,

wii'icfXlaw the first term next after the decision of the circuit court from

is directed to ^vhich the appeal was entered,
be filed he-
fore the next

term, is in Jt was now called on for argument, when the appellee object-

filTd bcforr ed that the appeal was not in court, as the record of the pro-

the court ccedings was not filed within the time limited by the act of

fil-st day"of^^ Assembl)-, which is as follows: " That if either of the parties

the next tt g^c. shall be dissatisfied with the judgment or decision of the

^ "^' " said Circuit Courts on any demurrer, special verdict, case sta-

" ted &c. that then and in such case the party so dissatisfied

" with the judgment of the said Circuit Court, and appealing

" from the same to the said Supreme Court, shall obtain from

" the clerk of the Circuit Court of the respective county a re-

" cord of all the proceedings, and file the same with the pro-

" thonotary of the Supreme Court before the next tcr?ii, and on

" failure thereof, judgment shall be confirmed and execution

" awarded in the same manner as if such appeal had not been

" made." March 20th, 1799. 4 St. Laws 360.

The question was submitted without argument. Hoss for
plaintiff. Hemphill for defendant.

Per Curiam. The record of the proceedings having been
filed with the prothonotary before the meeting of the court on
the first day of the next term, we think it within the limit in-
tended by the act of Assemblv.

OF PENNSYLVANIA. 77

1803.

Miles against M'CuLLOUGH. December

29th.

THE defendant while attending in this Court, upon an ap- A party
peal from the settlement of his accounts, as administrator, }^''^*^",
» ' ' ing an appeal

in the Orphan's Court of Lancaster county, was served with a from the

summons at the suit of the plaintiff; and Hopkinson now iTf^oved ^|^"[^^*

to set aside the service upon the ground of privilege. county to

this court is
privileged

S. Levy contended that the party was privileged from arrests fiom a sum-
alone. But "'°"'-

Per Curiam. It has been repeatedly ruled that he is equally
privileged from the service of a summons. Therefore let the
service be set aside.

-- rhe Commonwealth r/p"«/;/^; Douglass and others Saturday,

1 im1 t p 1 t^ • Uccembci-

**'^'"1 Inspectors ot the Jrnson. sist.

TN this case upon the motion of Hojikinson^ founded upon the An act of
-*• following affidavits, a rule was granted upon the defendants ^.^^^^"['ij^/
to shew cause why an information in the nature of a quo ri-r/r- pointment of
ranto should not be filed against them to inquire by what autho- Jhc^pri^on °*
rity they exercised the oftice of inspectors of the prison of the in ibe mayor
city and county of PJdladclphia, "^^^.^^l "J^"

the city, and
" yohnClement Stacker^ of the city oi Philadelphia^ Esq. being of tUeVoun-
" duly sworn, doth depose and say, that being one of the alder- ^V of P/;;/a-
" men of the said city, on the 5lh day oi November last, (1803) |/i,lL.cts'it'io

" he called on Mattluiv Laxvler Esq. mayor of the said city, ^''' 'xerciscd
iL I • • I i- 1 • 1 • I ' I I 1 ' " _<in a certain

and mquired ol him at what time and place the election of aay. An ap-

" inspectors of the prison of the city and county of PAz7«(/t'/-P"'"tnieiit

"/»/«■« would be held, the appointment of the time and place of,ia,i,ii.stiac

" holding the said election being vested in the mavor, and this "'•"'"<-'■

alter a refu-
sal by the
ma)nr to make known to certain aiciermcn and justices the lioiir and place at whirii such
appointment would be m.ide, is not hucIi an exercise of tlie mayor's discretion, as ilie law
will waiTant; and the court will ^ive leave to file an information in the nature of a quo
^•tirranni, aj;ainst tlu; inspectors s>> appointed f)iie \iho has an autli'irity to aj)poii\t to a
public office, caimot appoint liim«iclf.

78 CASES IN THE SUPREME COURT

1803. '' deponent believing that as an alderman of the said city, he
Amnion- " ^^'''^' ^ \cgA right to participate in the said election. To the
wealth " inquiry made as aforesaid by this deponent, the said mayor
V. " replied, ' The law points out the time.' This deponent said,
Douglass, u t j believe it is on Mo7idaij next.' The mayor replied ' Yes.'
" The deponent then inquired ot" the said mayor ' at what place
" do you hold the election ?' To which the mayor answered,
" that he had not made up his mind. This deponent further
*' inquired * At what hour do you intend to open the election ?'
" To which the mayor again replied ' I have not as yet made up
" my mind as to the time, but I shall summon as many as the
" law directs.' This deponent then addressed the mayor and
" said: ' You will have no objection to let me know the time
" and place of the said election, if I shall call on you on
" Mondarj morning.' The mayor replied "• I shall summon as
" many as the law directs, but I shall not let you know.' This
*•' deponent observed that he hoped they had the same thing in
" view, the choice of good men. The mayor said he hoped so,
" but that he would not let this deponent know when it was to
"•' take place. The deponent replied that he thought it was hard
" to be debarred of his right to know the time and place of the
" election and to participate in it. The mayor again replied,
*•' ' that I might think as I pleased, but that he should sum-
" mon whom he pleased and would not let me know when or
" where.' That John Douglass Esq. was present during the

" conversation."

" Ebenezer Ferguson of the district of Southwark in the
" county of Philadelphia^ being duly sworn, doth depose and
" say, that this deponent, being a justice of the peace in and
" for the county of Philadelphia^ on Saturday the 5th day of
" November last, (1803) in company with several of the alder-
•' men of the city of Philadelphia, and justices of the peace of
" the said county, waited upon Matthexv Laxvler Esq. mayor of
" the said city, to be informed of the time and place at which
" the election of the inspectors of the prison of the city and
" county of Philadelphia would be held, that they might parti-
" cipate in said election. That upon making the inquiry of the
" said mayor, he declined to give the information desired.
" That on Monday the 7th day of the said month of Novembery
" the deponent, in company with a great number of the said

OF PENNSYLVANIA. 79

« aldennen and justices, to wit, (six aldermen and eight jus- isos.

*' tices) waited upon the said mayor at his office, a few minutes „ "~"

*' after nine o'clock in the morning, it being the da}' appointed -vvealth

*' by law for holding the said election of inspectors of the -v.

" prison, and inquired of the said mayor to be informed of the Douglass.

'' time and place of holding the said election, as this deponent

'' together with the said aldermen and justices wished to

" participate in the choice of the said inspectors. The said

■•' mayor replied that the appointment of inspectors was already

*•' made."

The act of Assembly wliich first regulates the appointment of
inspectors, enacts, That it shall and may be lawful for the mayor
and two aldennen of the city of Philadelphia^ and two of the
justices of the peace of the county of Philadelphia " on the
" first Monday in May next to appoint twelve inspectors, six of
*' whom shall be in office until the first Monday in November
" next, and six until the first Monday in May following^ and so
" from time to time six inspectors shall be appointed in manner
" aforesaid, on the first Mondays in May and November follow-
^'- ing." April 5th, 1790. 2 St. Laws 810. This provision is
repeated in a supplement to the Penal Lazvs of this state passed
23d September 1791. 3 St. Laxvs 124.

The rule was returnable on Monday the 19th inst. when
Dicker-son on behalf of the defendants appeared to shew cause;
Hopkinson and Ingersoll for the prosecutors.

The commission of the defendants was then produced signed
\yy M. Lawlcr^ mayor, John Douglass znAJohn Barker^ alder-
men, F. Wolbert and J. ATcs-.y/f-r, justices of the county; and it
was then in proof that the usage had been to summon nine or
eleven magistrates, not less than four from the county and five
from the citv, the mayor always naming the individuals; that
they generally met in the afternoon, and uniformly at the
mayor's office; that the present mayor in die appointment pre-
vious to the last had followed this usage, in consequence of
which so many magistrates attended of sentiments hostile to
his own, that he was out-voted, and had joined in commission-
ing officers he did not approve; and that to guard against a
repetition of this act, hf summoned in this instanre hut tour

80 CASES IN THE SUPREME COURT

1 803. magistrates, with whom he made the appointment at a tavern iu

"TT" the citv, before nine o'cloek in the mornine;; one of the alder-

Coninion- • ' .

wealth nicn present being appointed one of the inspectors, and Joinhig'

V. in his orvii commission.
Douglass.

Upon these facts and the act of assembly, Hopkinson argued,
that as the law docs not designate any two justices or aldermen
who are to hold the election, it does not give an authority to the
mavor to select any two; that therefore, by a necessary infe-
rence, the power of electing is vested in the whole body of the
magistrates of the city and county; all and each having an equal
right to participate in it, although it may be done by anij txvo.
All therefore who attended and claimed the right, were illegally
deprived of it by the refusal of the mayor to inform them of
the time and place of holding the election. The legislature
provides for an emergency, by requiring the assent of only a
few, as there are circumstances under which only a few can be
assembled; but beyond question, for the sake of the peniten-
tiary institution, it intended to reserve the benefit which might
arise from the counsels of the whole or a large portion, when-
ever the whole or the portion chose to advance their opinions,
and legally demanded an opportunity to express them. If the
contrary position be true, there is more than one consequence
flowing from these provisions of the law totally irreconcileable
with policy or common sense. In the first place, the opinion of
nine tenths of the city and county magistrates may be rendered
of no eft'ect by the opposition of one tenth. This is contrary to
the spirit of our laws in every other instance. In the next
place, the mayor alone might as well make the whole appoint-
ment. For if he may summon to his assistance those only Avho
suit him, and then clandestinely execute the law, it is clear that
none but those of his own sentiment will receive an invitation^
and therefore that his own candidates will always be appointed.
This is contrary to the spirit of the particular law in question;
for it is evident from the selection of at least two magistrates
from the county and as many from the city, that the object of
the law was to procure an expression of the public will from
each of these districts, because it is to them that the regulations
of the prison have a principal relation.

Whetherihe mayor is an essential member of the appointing
body, it is not material to inquire, as this is not a case in which

OF PENNSYLVANIA. 81

an appointment has been made without his concurrence or igO
against his will; our present point is that he has no discretion to ~Z '

reject the vote of any alderman or justice who presents himself wealth
for the purpose recited in th.- law; for if he has the discretion, he
may usurp the whole power. Douglass

Let it be granted however for the sake of argument that the
mayor has this discretion; we then say that he has exercised it
in a manner so partial^ oppressive and arbitrary^ as calls for the
exercise of the constitutiontd powers of the supreme court in
this behalf.

The first circumstance of this kind in the case is, that it was
not a Sare neglect to summon the officers, but a deliberate de-
nial of their right upon a claim made by them to exercise it.
Another is the desertion of the ordinary />/«C6' of meeting. The
mavor's office as well as the most natural was the most usual
scene of these appointments; and in changing it for an inn upon
an occasion of this nature, it is certain that the object was to dis-
appoint those who in a reliance upon usage should resort to the
accustomed place. A third circumstance is the hour. There is
a want of confidence in the measure betrayed by the parties
themselves in the selection of the time. If the mayor has the
discretion which is contended for, this is not the way in which
he must exercise it to secure the protection of the law; it is a
reasonable discretion alone that is defended by this court; and
there is not abetter ground for defeating a xxxixmiest usurpation
of right, than th^-re is for defeating a right thus oppressively,
partiallv, and unjustly exercised. The King v. Young and
Pitts, {ci)

The common defence of a discretion thus used is ignorance;
but it cannot be the plea of the present mayor. He was ac-
quainted with the usage, as in one instance at least he pursued,
it. He was moreover advised to adhere to it by the constitu-
tional counsel of the city; !nit the advice was rejected, although
the consequence was that 'Jolm Dong'ass appointed and com-
missioned himself, (h) The spirit of the proceeding infects the
whole appointment; and an information i.s the proper remedy.

(«) 1 Burr. 556. ^rt9.

(/») It ap|K-are<l tliat the recorder of the rity ha(l advised tlic mayor not tu
i)ror«:i-d to tlic appointment a.* Iio did; but liis advice was rounded on Uiff
:iicxp"dicncy of tlic measure i-i'li'-'- tlian on any opinion lie had f'jrni'jd of i(t
lUcfjalitv

Vol. I. I^

32 CASES IN THE SUPREME COURT

180J. Dickcrso)i argued, that the law provided for the oppo'intmcnl

Coniinon- ^^^ "^^ ^^^ ^^^ election of inspectors. An appointment is not
vcalth necessarily an election; in the present case it bears no resem-
^'- blance to an election; and the law has carefully avoided the use
IJovglass.qJ.-j^]^j^ latter term. Had the legislature intended that the inspec-
tors should be placed in their offices by an election, the place,
as well as the time, and the manner of conducting it, would
have been pointed out, as in the case of other elections.

As the city and county are both interested, so they both
ought to have some influence in the appointment of inspectors.
To have given this power without control to the mayor, would
have been doing injustice to the county. The only check, how-
ever, which the legislature thought proper to place upon the
power of the mayor was, that he should not appoint inspectors
without the concurrence of at least two of the justices of the
peace of the county, and two aldermen of the city; and with
their concurrence he could undoubtedly make the appointment,
even if all the other aldermen of the city, and all the other jus-
tices of the county should oppose him.

It is said, that the mayor by summoning but two aldermen
and two justices may always have the appointment made ex-
actly to his own liking. But how did the conduct of the former
mayors vary from this rule? It is true, they generally invited
four justices and five aldermen to attend the appointments; but
they took care to invite such only as would agree with them in
the choice. There is no instance where one of those mayors has
V2erg'ed\i\s own vote by inviting those who would vote against
him; nor indeed was there any obligation upon them to do so.
Those mayors hud as full and absolute control over the appoint-
ments with five aldermen and four justices, as the present mayor
had with two aldermen and two justices; the principle is pre-
cisely the same in the one cage as in the other. The law is ex-
press, that the mayor, two aldermen and two justices shall have
the power to appoint 8cc.

It is said that the mayor, if he had the right of selection,
has exercised it in a partial^ oppressive and arbitrarij manner;
and that although he might not be bound to give jiotice &c. to
all the aldermen and justices, yet he was bound to give them
that information when they applied for it; that they were enti-
tled to this information as a matter of right.

OF PENNSYLVANIA. 83

These questions are not fairly before the court. If the may- 1803.

or has deprived these aldermen and justices of any of tlieirT!

' , J J Common-

rights, they have their remed\- against him; they may bring wealth

their actions, or proceed against him as they please; but it is ^'•

idle to proceed against the inspectors for injuries the^' have A-'Ovglass.

sustained from the mayor. It is sufficient for the inspectors that

they hold a commission executed by the mayor, two aldermen^

and two justices; they were bound to serve or be subject to a

penalty; nor was it their business to inquire whether the mayor

had deprived any person of his right to vote; these exceptions

therefore to the conduct of the mayor ought not to have any

Influence in deciding the question before the court.

It is said that one of the inspectors is one of the appointing
magistrates. But it does not follow from this that the appoint-
ment is bad. Even in the case of an election to a corporation
office, it seems fairly inferible from the Km^ v. Ma/den (a)
that it is no objection to the officer that he presided at his own
election, and was sworn in before himself. But the present case
is merely an appointment; and it rests with the gentlemen in fa-
vour of the rule to shew that because a person is vested with
the right to appoint, he is precluded from exercising that right
in his own favour. If however the court should be of opinion
that he could not concur in his own appointment and by that
concurrence make it valid, it will not be denied that his concur-
rence in the appointment of others is good; his case therefore
cannot in the slightest degree affect the appointment of the
others.

The law does not fix the hour of the day nor the place of
making the appointment; and there has not been sufficient time
since the passing of the law to establish any rule upon the sub-
ject by custom. Nor indeed does it appear that there was any
necessity for a meeting at all, if the concurrence of the mayor,
two aldermen, and two justices, could have been obtained on
the proper day without. The mayor has exercised his discre-
tion upon thesf points, according to the spirit of the law. It is
sufficient that the a|)pointment was made on the proper day, and
by the officers required by law to make the same.

In^crsoll in reply said that the question was not so mucli
whether the mayor had a discretion, as whether he had exci-

(n) 4 Burr. 2130.

84 CASES IN THE SUPRFME COURT

1803. cised it in a fail- and reasonable niannt r, without which the ap-
Conuiioi~P*^'"^'"*^'"^ could not he vahd. That whether it was called an

weulili a|)poiiitment or aw election was immaterial; for that where an

'''• authority may be exercised by several, equal opportunity of

Douglass, j^jj^g. j^. g|,Q^,ij [3^ given to all; and where this opportunity is

oppressivehi withheld, it corrupts the whole proceeding. That
the case of the Kiiigx. Maiden did not apply, as the plaintiff did
not elect himself; but the only point there decided was that he
was not duly sworn in.

The opinion of the court was delivered by

Yeatf.s J. (f/) The words of the 17th sec. of the act of 23d
Sept. 1 79\ are that "• it shall and may be lawful for the mayor and
" two aldermen of the city of Philadelphia and two justices of
" the peace for the county of Philadelphia to appoint inspectors
" of the prison of the city and county of Philadelphia on the 1st
" Mondaijs of May and November in every year, and on any
" other days when vacancies shall happen in the said office by
" death resignation or otherwise." It appears to a mujoriiy of
the court, that the legislature intended to vest in the mayor a
certain legal discretion, which should be exercised in a lair,
equal, and reasonable manner. The question is not, whether the
mayor is bound to give formal notice to all the aldermen ot the
city, and justices of the peace of the county, when and where
the appointment shall be proceeded upon: but whether when he
has been called upon by persons of that description whom the
law vests w ith a power of appointment, and who are desirous
of exercising that right, he can legally refuse to gi\ e them in-
formation of the place and hour of appointment, and preclude
them from giving their sentiments upon the subject. We are of
opinion that he is not justified by law in this refusal; and thus
proceeding to a nomination at an unusual hour and place is not
such an exercise of his discretion as the law will warrant; be-
cause this would be in effect an assumption of the whole power
In the mavor, which cannot be collected from the words of the
law. One having a discretionary authority to appoint a fit per-
son to a public office appointing himself, seems a solecism in
terms; and it cannot be deemed the fulfilment of his duty. We
periectly concur with Mr. Recorder that whatever right the

(a) Shi ppen C J. was absent, from indisposition.

OF PENNSYLVANIA. 85

mayor had in this appointment, it was improper to exercise it in j gos.
the manner he has done; and ilierefore think good and legal TT
grounds have been shewn to file the information prayed for by wealth
the relators, in the nature of a quo rvarranto. v.

DoVGLAss.

Brackenridge J. I concur in this opinion only so far as
touches the case of Jolvi Douglass.

Rule absolute.

'*> &5 , . Saturday,

n Hi KEtiNEDY a^ai?7St Gregory. December

- "^ 31st.

.- _ ^ III an action

"T^IIIS cause was tsied before Smith and Brackenridge, jus- of slander

-■- tices, at Nisi Prius in June 1803. It was an action on the"''%^.^''f ,
' -^ _ proof IS that

case for a slander uttered by the defendant of and concerning the defend-

the plaintiff in his business of school-master, " that he loved li-f"* '" '^^y
' ' to a question

''quor," and "that he was given to drink," /x^r quodhc lost hisimplioatinc:

scholars. The pleas were not p-iii/ti/ and in tification. The evi- "^ P :»'"|»"
' . -'J answen-d ci-

dence of the slandir was the testimonv ot one Samiit/ BrerV'ter^^hev " It is
that on his askincr the defendant if Kenneclu was given to drink, *° ^^.'l

o u o ■> say It IS so,"

he answered either "it is so," or '■'■they say it is so." The tlic defend-

counsel of the defendant then offered a witness to prove, in mi- fn e'^dciic'e^

tigatirm of damages, that before the publication of the words ''" mitigatiou

laid in the declaration, he had told Gregory that the plaintiff'tvas^l^^l^^^^^^^^

nvcn to drink. This evidence was objected to, and the judges '"''l '''"i

were divided in opinion upon its admissibility. Smith J. thought il^'^!*,! j^ ^'^'

it was inadmissible upon the issues then trying, but was willing *'t<^'"'^ ^I'so

that the defendant should have tiie benefit of it, reserving tlic\^.i',p„ ti,e

point. Brackenridge J. thought it admissible in mitigation of ^'iinder is

damages; but he asked the defendant's counsel whether, from ,„,i'r,.(;,,..

the case which the plaintid' liad made to the jurv, thev thought <;"<'■. 'I'c ^Ip-
.1 • .. ^ 1 • 1 ,- • 'r-i -1 ' ' 1 1 fendant may

tneir client stood ni need of it. 1 he evidence was not heard. •,„ niiti^ratiori

The court then charged the jurv that the words did not appear "'^''=""='K^«:!*

to have been spoken maliriouslv, i)ut to have been used up(mii,p slander

.m examination of the plaintiff's character, in which the com- V^ eommu-

, „,, . , ,, , .• ,• "icated to

munity was interested. 1 \\v jury however lound a verdict lor j,im by a
'he plaintiff, one hundred doliars damages. V'";'' I"''*-""

" Vide Morm

V Duane.

t'O t ASLS IN THE SUPREME COURT

1 B03. Jjij^'crso// obtained a rule to show cause why there should not

Kennedy ^ ^ ""^^^ trial, on three grounds: 1. That the verdict was against
V. evidence. 2. That it was against the charge of the court. 3. That
Gregoky. competent testimony had been overruled. And although it was
stated by one of their honours, that the testimony which had
been offered was waived after the question put by judge Brack-
enridge^ the argument upon shewing cause turned almost ex-
clusively upon the third ground; a majority of the court in bank
being of opinion that the testimony was not waived.

Ingcrscll and Wells argued for the defendant. Hopkinson and
Hare for the plaintiff.

Shippen, C. J. having been prevented by ill health from sit-
ting on the argument, gave no opinion.

Yeates J. The material question to be considered In this
case is whether evidence proper in itself on the pleadings has
been refused by the court on the trial.

From the statement of the evidence made by the presiding
judge, it appears that Saynnel Brexvster one of the witnesses, on
the defendant finding fault with the conduct of the plaintiff,
asked him whether he was given to intoxication. To which the
defendant answered either that the plaintiff Joved liquor, or it
-uas said so. David Newport was offered to prove that he had told
the defendant the plaintiff was addicted to drink; on which the
court was divided. It has been contended that the answer to
this question was waived by the defendant's counsel. But tak-
ing into view what dropped from one of the members of the
court at the time, I am not disposed to put that construction on
it. A due harmony between the bench and bar not only con-
duces to expediting business, but is in a great measure ne-
cessary in the administration of justice. Under the circum-
stances of the case therefore I do not look on the evidence as
waived.

It is settled in 7 T. R. 17. that a plea of justification in slan-
der under the communication of another is not good, unless
the author is mentioned at the time of speaking the words; and
in 2 East 426. it is resolved, that whoever would shelter him-
self under report, must also use the very words of his author, in
order to give the plaintiff an action against him. A general

OF PENNSYLVANIA. 87

leave to justify by our practice is tantamount to a special plea 1803.

of justification in Entrland; and therefore it is clear that New-~Z

-' . ^ . . Kennedy

port could not with propriety' answer the question on the ^,.
ground of justification. But it is contended here that the testi- Gregouv
mony was not offered as a justification, but in extenuation of
the damages for the words spoken. If the words laid and
proved had been substantively and independently charged
against the plaintiff by the defendant, I am strongly inclined to
think that the present question could not be asked, even to miti-
gate the damages^ on cither plea then before the courtj unless
there had been leave to give the special matter in evidence,
and notice of the intention of the party had been previously
given. Because otherwise it would be a surprise on the plain-
tiff, and he could not come prepared to repel the evidence.

Here however one of the plaintifl^'s witnesses swore in the
alternative, that the defendant declared to him either that the
))laintiff loved liquor, or it was said so. And under these cir-
cumstances, I think it was competent to the defendant to shew
by Nexvport^ that he had said so to him, to take off all presump-
tion that the charge was a fabrication of his own, mcrehf in miti-
gation of damages, as to the words thus sworn to by Brexvstcr.

I agree that new trials will be seldom granted in actions of
slander. The peace of society requires that slander should be
repressed. But in this case, the presiding judge having declared
in his charge, that, he should have been satisfied if the jury had
given a verdict for the defendant, or if they could find for the
])hiintifr and should find reasonable damages, which evinced a
measuring cast in his mind, and testimony admissible in my
idea in its nature not having gone to the jury for their consi-
deration, under tlie special circumstances of the case, I am of
opinion that a new trial sliould be granted.

Smith J. When Nexvport was offered to prove that he told
defendant, phiintifl" was given to drink, the court was divided
upon the admissibility of the evidence; whereupon it was de-
clared hy the court that, agreeably to the practice on the circuit,
the evidence was to be given, and the point whether admissible
or not, reserved. The counsel who offered it, on being asked by
the judge who was in favour of its admissibility, Do you need
it? waived it.

Hut I will consider the question as if the court had ruled

88 CASES IN THE SUPREME COURT

1803. that it was not admissible, and as if there had been no waiver

TennkdT °*' '^•.

V. It is clear that \n justification of the defendant it could not be

Gregory, admitted. " If I. S. publish that he hath heard generally without a
" certain author that T. G. was a traitor or thief, there an action
*' svr It' case lieth against I. S. for this, that he hath not given
*'to the party grieved any cause of action against any, but
*' against himself who published the words, althtjugh that in
"truth he might hear them; for otherwise this might itnd to a
*' great slander of the innocent. For if one who h ith Ue am phan-
*' tasiam^ov who is a drunkard, or of no estimation, speak scan-
*•' dalous words, if it should be lawful for a man of credit to
"report them generally, that he had heard scandalous words
" without mentioning of his author, that would give greater co-
*•' lour and probability that the words were true in respect of the
*' credit of the reporter than if the author himself should be
*' mentioned; for the reputation and good name of every man
*' is dear and precious to him." 12 Co. 134. which case is recog*-
nised in 7 T, R. 19. by Lord Keiujon^ in delivering the opinion
of the court in Davis v. Lervisy which was an action of slander
for speaking these words by defendant, of and concerning plain-
tiff in his business as a taylor^ " I heard yon were run axvay; a
person has been here to tell me that you zvere run away.^* De-
fendant pleaded in justijication that before the speaking of the
words he the defendant had heard and been told bv one D.
Morris that the plaintiff v/as run away, for which reason he
spoke them ; and on general demurrer judgment for the plaintiff.
" Per Lord Kcnyon. Whether this be considered on the authori-
" ties or on the reason of the case, the justification cannot be
" supported." He then cites the Earl of Northampton's case as
in point. " Then it is said that it is sufficient to repel such ac-
" tion, to disclose by the defendant's pica the person who told
" him the slander; but that is clearly no justification after put-
" ting the plaintiff to the expense of bringing the action. The
" plaintiff can only impute the slander to the man who utters
" it, if the latter do not mention the person from whom he
" heard it. The justice of the case also falls in with the deci-
'^ sions upon this subject. It is just that when a person repeats
" any slander against another, he should at the same time de- •
" clare from whom he heard it, in order that the party injured
" may sue the author of the slander."

OF PENNSYLVANIA. 89

But it is now discovei-e J that although true it is this evidence j §03.

cannot be admitted to iii.stifu, vet it oufi:ht to have been admit- "T

■' JJT' o Kennedy

led in mitigatioii of damages. ,,.

It is truly said by Lord Mamfield^ Burr. 1 990. xh'W.favonrahk GRi-ftORv.
cases make bad precedents. Because on the trial the inclination
of my mind was rather against the plaintiff, does it follow that I
must incline to the adinission of evidence, which I believe to be
contrary to the rules of law properly understood and applied to
the subject matter? In Strange 1200. in an action for words, on
not guilty, defendant offered to prove the words to be true in
mitigation of damages, which the Chief Justice refused to
permit, saying that " at a meeting of all the Judges upon a case
'' that arose in the Common Pleas, a large majoritv of them
" had determined not to allow it for the future, but that it
' should be pleaded, whereby the plaintiff might be prepared
'' to defend himself as well as to prove the speaking of the
" words. That this was now a general rule amongst them all,
'* which no Judge would think himself at liberty to depart
" from, and that it extended to all sort of words, and not bare-
'' ly to such as imported a charge of felony."

I challenge ingenuity to point out one evil which woukl result
from such evidence being given as matter of justification.,
which would not follow to almost the same degree, were it
allowed in mitigation of damages ; it would certainly follow to
a very great degree.

A man whose declaration or even significant hint will be ex-
tensively believed goes round and makes such a representation
of the plaintiff as in a short time reduces him and his family to
the want of bread. TIic injured party brings an action against
the man who has thus injured his reputation; the propagator of
the slander lies by till the day of trial, and then he brings for-
ward evidence to prove that some vile wretch, perhaps whose
censure would be praise, told him the words which on his crc-
tlit have been believed from the time he uttered them, but
which, had he at first mentioned his author, would have been
deemed unworthy of the leirsl credit. But supposing the man
who told the defendant tiie words, to be of eepial credit with
himself or even l)etter, by his lying I)y till the trial the act of
limitation takes place, and the injured man has no remedy
against the original slanderer under whom the slanderer has
sheltered himself: this will be the general effect of the evidence

90 CASES IN THE SUPREME COURT

1 80o. offered, if adniiucd. If such evidence would lessen the damages;

Kenned ' ""^ cent, it would so far deprive the plaintiff of an adequate re-

T, medy against the authors of his ruin. But in this case there is

Gregory, an additional reason against its admission. Two or three days

after speaking the words, plaintiff and defendant both called at

Saimiel Brervster\<f^ who repeated the words of which he gave

evidence on the trial; even then defendant did not give a hint

that any other person had mentioned them to him.

I conclude therefore that evidence cannot be given either in
justification or in mitigation of damages, that a third person, not
named at the speaking of the words, mentioned them to the de-
fendant. A contrary decision or construction would open a
school for scandal throughout the state.

At the trial the inclination of my mind was that there was
not a sufficient proof of malice; but this was a fact arising from
the evidence properly and solely within the cognisance of the
jury. Their verdict proves that there was malice in defendant;
and as juries as veil as individuals are the best judges within
their own exclusive province or profession, reflection induces
me to believe that in this instance their judgment was more
correct than mine.

Malice, malignity of mind, maybe evinced in a thousand dif-
ferent ways. The defendant went round with the schoolmaster,
by whom he wished to supplant the defendant, to different em-
ployers, and by sly insinuations did him as much injury as if he
had made the most direct and pointed charge.

Brackenridge J. continued of opinion that the evidence
should have been admitted in mitigation of damages. He as-
sented to the law as laid down by Judge Sinith with respect to
pleading in justification, but thought it did not apply to the case.
He Avas also of opinion that the verdict was against the weight
of evidence.

Rule absolute, (ci)

(a) Since the appointment of Cliief Justice Tilghmax, the opinion of tlie

court in the case of Kennedy v. Gregory, has received his sanction^n the

foUowing case at Nisi Prius. lb~90J

" 2wh326

-, ,^ 2wh328l

Morris against Duaxe. "^t

IN this cause, which was an action on the case for a libel, tried before
Ttlghman C. J. at Nisi Prius March 21st, 1808, tlie defendant offered in
evidence a writinjj, purporting to be tlie copy of an anonymous letter which

• OF PENNSYLVANIA. "91

1803.
Lessee of Jenks against Backhouse. December

31st.

UPON the trial of this ejectment before Shipben C. J. and A trust
'■ ' estate in

Smith J. at a Circuit Court for Bucks in May 1802, the pgnnsyiva-

plaintiff shewed a reeular tide to the premises in question,'.''-^ ^J<^"'"^"f^'

., /^jiii.' in case 01 in-

being part of a large patent, m Laxurence hroivdon^ who by his testacy, to

will devised the residue of his estate, including the lands in <•'>« 'i'""" f*

, _,,. common law.

controversy, to his two daughters Grace and Ehzabeth. Eliza- «*

beth and Thomas Nicholson her husband, and Gi-ace and Joseph

Galloxvaij her husband, who in his own right was entitled to one

from certain marks on the back of it was inferred to have been in the pos-
session of B- F. Dache, and upon his deatli to liave come to the defendant
who succeeded him as editor of tlie Aurora in which the Ubel was publish-
ed. The deatli of Mr. Bache and tiie defendant's succession to the newspa-
per were prior to the libel; and the object of the writint^ offered was to mi-
tigate the damajjcs by shewing that the defendant was not tlie inventor of
the charge he had published against the plaintiff, but that this writing was
In his possession at the time and led to the publication.

The principal argument offered by Hupkinson for the defendant was this:
Tliat the libel being rharged in tlie df^chiration to have been malichmslv and
falsely dcviteJ as well as printed and published by the defendant, though it
was not necessary for the plaintiff to prove tlie whole charge, yet the conse-
<|uence of proving tlie whole would be damages proportionally high. It there-
fore was material to shew that the chai'gc was not devised by him, for he
thus shewed that the degree of malice was at all events less than if he had
devised it. It could not be given in evidence to maintain tlie plea of ;jo/ guil-
ty,- it was in strictness no jiutijication, and tliereforc as it was material ho
should be allowed to offer it to the jury in mitigation of damages. He cited
the case of Kennedy v. Gregory, and Prici's case Cro. yac. 91. in Brook v.
Montague.

The objections to this evidence by Lewis and Meredith wlio were of cuun-
".cl with the plaintiff were, that the libel jmblished by Dttaiie contained no
reference to a letter or to any other source of information, but was a
substantive charge proceeding exclusively from him.self, and therefore it
should fall exclusively on himself; that in point of law the malice was prov-
<;d conclusively l)y the false publication, and it was altogether iirclevant ti>
shew an absence (>!' personal ni:ilice, and of course a less or greater degree
of it. That it could not legally weigh a particle in the defendant's favour
that he harl such a pa|)er, when he had altempted to poison the mind of ihe
public by stating the charge uiiecpiivocally and witlioul refeiencc. 'I'iiat on
the contrary it aggravated the offence, as the reference might have furnish
ed the plaintiff an opportunity of reselling his cliriractcr, by exposing the
source fror^i which the calumny proceeded. The case from Cro. yac was al-
*.Onetber different There a chrgAman recited from his pulpit a stcry from

Back-
house.

92 CASES IN THE SUPREME COURT

I8O0. iwcnt\-lburtli of the patent, executed a deed of partition, and
~T~~^ ~r;Ulotted and granted the premises in question by certain numbers,

Jenks to Joscjjh Gallo7voy and Grace his w'lfv and to the heirs of Grace;
"v. certain other numbers to iV?cA(?/.9on and his wife, and certain other
numbers to Joseph Gallexvaij and his heirs. The deed was duly
acknowledged. At the time of the partition Galloway and wife
had issue Elizabeth. Galloruai/ was afterwards attainted of
treason, and removed from Pennsyhaiiia to Great Britain^
where at the time of trial he remained in full life. After his
attainder and departure, his wife died in Pennsylvania^ having
by her will devised the premises to Abel Janies^ from whom
they came to Thomas Jenks^ in trust for Elizabeth Galloway
the daughter and her heirs. Thomas Jenks died intestate

Fox's Mart\ roiogy, tliat one Greentvood for his perjuries and crimes liad been
killed by the liand of God. GreanDood was in cliurch at the time, and a^'tcr-
wards broiii^ht an action for the words. But the clergyman pkaded not
guilty, and it was held the action would not lie, by reason of the occasion of'
publishing the words. (The case of Kennedy v. Gregory was not in court, and
therefore was not noticed.)

TiLGTiMAx C J. Tliis point is not new to me, it has occurred on the cir-
cuit and been considered tlioutrh not absolutely decided by me. Tlie effect
of any evidence which a defendant may offer is with the jury; the compe-
tency of it, with the court. The ((ueslion in this case is, whether the defend-
ant is entitled to offer to tlic jury tliis letter, with the explanations, for any
legal purpose connected with the cause. It certainly cannot be offered to
prove the plea of not guilty; and it is no \ef!;z\justi^cation. But still, is it not
material? Can it be, that like damages should be given against two defend-
ants, one of wliom received his information from such sources as were enti-
tled to a certain degree of credit, while the other devised it by his own
A\icked imagination? I think it cannot. Such evidence certainly goes to the
degree of malice, and must weigh with the jury according to the circum-
stances which attend it. Wliether these circumstances are such as ought in
rea.son to mitigate the damages, they will decide. In the case of Williami;
and wife v. Mayer and vife, (Circuit Court, MiJJlin county. May 1806) 1
expressed the inclination of my mind, that the defendants who were sued
for slander in charging the plaintiffs with felony, might on general principles
give evidence of circumstances which had induced a suspicion of felony;
although in tiiat case the evidence was clearly admissible by way of rebut-
ting something which had been proved, in order to aggravate the damages,
by the plaintiffs, and therefore the general paint wsts not decided. Since that
I have observed in 2 Peai's Cnmp- of Evid. 287. it is said to have been ruled
by Eyre C. J>. in the case of Knodel v Fuller, that the defendant may in mi-
tigation of damnges prove, on the general issue, such facts and circum-
stances as shew a ground of suspicion not amounting to actual proof of the
plaintiff's guilt. I adhere to the opinion which I had formed in the case of
Wiliiams V. Mayer, and admit the evidence.

Horsf..

OF PENNSYLVANIA. 9Q

leaving six children; but the lessor of the plaintiff was his 1803.
oldest son, and heir at common law. The defendant derived Lessee of
his title under the agents of forfeited estates, who upon the Jenks
attainder of Galloruau-, sold the premises for his life, supposing ^^•■
him to be so entitled as tenant by the curtesy; but this court _„^,^J^'
having decided (a) that by his attainder the estate of Mrs.
Gal/oxuay was discharged of the curtesy, this ground was not
taken by the defendant. He however resisted the plaintiff's
claim upon two other grounds: First, That in Pennsylvania a
trust did not descend to the heir at common law, but to all the
brothers and sisters under the intestate laws; and that therefore
the recoverv could be but for one sixth at most. Secondly, That
the deed of partition conveyed a life estate to Galloxvay,

A verdict was taken for the plaintiff generally, subject to the
opinion of this court upon two points reserved, which were the
defendant's two objections; and they were now argued by
Hopkinson and Tilg-hman for the plaintiff, and by Ross and the
Attorney general for the defendant.

For the plaintiff it was contended on the first point, that
a trust descends in Pennsylvania as it does in England^ and is
not contemplated in any of the provisions of the intestate law.
They relate exclusively to the beneficial estate. The acts of
Asscmblv which govern this case give the eldest son two shares,
the widow her third or moiety, the other children their respec-
tive portions; in certain cases they order a valuation, and what
is a striking feature, they expose the whole of the intestate's
estate, which is in any manner the object of the law, to the
payment of his debts. 1 St. Laws App. 44. 47. It is impos-
sible that a mere trust should be embraced by such provi-
sions. The acts of Assembly are to be construed like a will, in
which a general devise of all a testator's estate docs not pass a
trust. Attorney general v. Bulhr. (b) Neither will a general
assignment iiy a bankrupt pass a debt due to him as trustee.
Winch V. Kcelei/. {c) The argument ab inconvcniciiti in our
case is very strong; and our judicial decisions n;cognise th(
heir at law for various purposes not witliin the intestate law,

(a) l.c-iu'c of I'cmberton v. Hicks, ante 1

fh) 5 Vezjr. 339. (0 1^- '-^ ^- ^^

Back-
house.

94 CASES IN THE SUPREME COURT

1803. as in the case of an estate tail, where the oldest son has been
7^;;;;^ adjudged to take.

Jenks Second point. The intention of the pai'tics was to keep their

-V. rights upon the old footing, and merely to sever the possession;
though whatever was their intention, they had no capacity to
limit by that deed any estate which was not in existence before.
Who were the parties that granted to Galloway and his wife?
Thomas Nicholsoji and wife, who certainly could not give Gal-
lowaii an estate in his wife's lands. It s contrary to the nature
of a partition either by writ or deed to alter the estate of the-
parties; they all continue to be in of their old estate. Co. Litt.
169. b. 177. h.

For the defendant. First point. The intestate laws include
within their provisions all legal estates; and if there be an
inconvenience, it is for the legislature to remedy it. Its falling
into many hands is no objection; for even in England it de-
scends to coparceners, and the children of a coparcener, Co.
Litt. 163. />., and to brothers in gavelkind, where all the in-
conveniences suggested may arise. Indeed the opposite argu-
ment allows that if all jfenis^s children were females, they
would take the trust among them. The legislature knew
that trusts were in existence, and they have used general
words. But it is said general words in a will do not pass a
trust; this has been vexata quccstio^ and in the case of Marlow
V. Smith {ci) the direct contrary was decided. The reason why
a bankrupt's assignment does not pass a debt owing to him as
trustee, is because the statute 1 Jac. 1. c. 15. only says that
such debts are to be assigned as ?LX&for the benefit of the bank-
rupt. As to an estate tail, whatever may have been the decision,
it does not apply. A man cannot be said to die intestate of that
which he has no power to devise. The heir at common law takes
per formam doni as the person named.

Second point. The intention of the parties is to govern; but
it must be collected from the deed, which explicitly allots and
grants an estate for life to Joseph Galloxvay. The only ques-
tion is as to their power, which hardly admits of doubt, since
the wife was a party and acknowledged the deed. She certainly
i»ay join her husband in conveying her estate to a third perstJn,

Ca) 2 P. Wws. 198.

OF PENNSYLVANIA. 95

^o.

Back-
house.

and may limit it by vise to her husband and herself for life, jgOc
with remainder to her right heirs ; and this is the same thing. i^essee of

Jenks
Reply. A trust will certainly descend to parceners, not be- ^•
cause the intestate law has so ordered it, but because they form
together but one heir. Co. Litt. 163. b. But although the equi-
table estate goes to all the sons in gavelkind, the trust does not,
nor to the youngest son in borough-english; the heir at law
must alwajs enter for a condition broken. Wcllock \. Ham-
mond, {ci)

Yeates J. delivered the opinion of the court.

The first point reserved is whether the trust descended by the
Intestate laws of this state to the six children of Thomas Jenks
deceased, or to the lessor of the plaintilT, his oldest son and
heir at the common law.

However general the words of our intestate act may be, it
cannot be asserted that the legislature contemplated trust
estates as governable thereby. None of the provisions which
have been made by our municipal laws, seem applicable to
interests purely legal. To speak of a widow having dower in
lands vested in her husband on special trust and confidence,
without any beneficial interest in him, but for express specified
purposes; or of children succeeding to the reversion of one
moiety thereof after her death; or making partition thereof, or
in case the same cannot be divided without prejudice to or
spoiling of the whole, proceeding to a valuation; or selling the
same for payment of debts and maintenance of minor children,
in defect of personal estate in the decedent; and a variety of
other cases which may be put, would sound very harshly in the
ears of a lawyer, and be deemed solecisms.

We cannot make laws, but we are bound faithfully to inter-
pret them according to their true intention, and must never
suppose that the legislature have been guilty of palpable absur-
dities, where their public acts are susceptible of a rational con-
struction. The di\ ision of a fiduciary interest into many parts
in diflcrent proportions, and vesting it thus split up, in many
instances in minors, incapable of discliarging the functions of
the trust, would be attended with many inconveniences. The

U) Cro. Eliz. 104.

HOUSE.

96 CASES IN THE SUPREME COURT

1803. ficlvtise doctrine docs not impair the principle of equality
J among the children ol a common parent, adopted by the policy

Jekks of our laws. In the case ot an estate tail after the death of the
1'. tenant in tail, it has been determined at Tork Nisi Prius that

Back- j^jg j^^.jj. ^^ common law shall take the lands thus intailed. He
claims, it is said, through his a.nctstor per Jorma?n doni; yet as
to the purpose of taking he is considered as the heir of the
father. The strong ground of the decision I take to have been,
that it had been the uniform received opinion of the profes-
sion, that such a case was not within the true spirit of the intes-
tate acts, that many estates have been held under it, and that
it would be highly dangerous at this time to impeach the doc-
trine. This argument holds in all its force in the present
instance. From the best inquiry we have been able to make,
and concurring as we do, that the vesting of a trust by the rules
of descent at common law will best answer the ends of its
creation, that our intestate acts only respect beneficial and not
confdential interests, and that the application of them to trusts
would produce many difficulties and mischiefs, we feel no diffi-
culty in declaring that the trust in this instance became vested
in the eldest son of Thomas Jenks the trustee.

On the second point we have no doubt. We do not think it
was the intention of the parties to the partition, to vest Joseph
Galloxvay with any other interest in the land, than he had pre-
vious thereto. He was tenant by the curtesy initiate of an un-
divided right, and the only object of the deed appears to be that
they should hold the right in severalty. Indeed it has been
truly said that it was not competent to the parties to extend
his interest in the lands.

On the whole we conclude that judgment should be entered
for the plaintiJF for the whole of the lands recovered by the
verdict.

Judgment for Plaintiff.

OF PENNSYLVANIA. 97

91
327 1804.

64 —

,S r. • T. Tuesday,

1^ . i ETRY agai7lSt iSY.AVXKRLET. September

V 4« llth.

'TN this case upon the motion oi Milnor. a rule was e-ranted ^^^'^^shenr

-■- upon the sheriff oi BucAi- county to bring uito this court cer- ncv raised by

tain costs which he had retained out of the money raised bv ^^ execution

• upon land

execution upon the defendant s lands. pays o(f

Upon the return of the rule it appeared that with the money 1"°'*^'^^!^"'^

\ ... ' jiiclpnients

SO raised the sheriff had paid off several judgments and a mort-\vliich had a
gage upon the premises sold, which being prior to the judgment P^^V V^" ^
in this case were entitled to prior satisfaction; and that he hadmciit under
charged a poundage upon the different sums so paid, which was ^^^|^^^^.^^ ^
the money brought into court, instead of confining himself to made, he is
the real debt in Pctry's execution. plnmdagl"

ujion the
Ml/nor cited the act establishing an explicit Fee Bill which ^.J^^ ihoutrh
limits the poundage of the sheriff for selling lands levied on, it exceed the
and expressly orders " that no poundage shall be paid for more ^j^'^ cxccu-
" than the real debt in the execution." 3 St. Laws. 782. But tion,

Per Curiam. The construction of that clause has uniformly
allowed to the sheriff a poundage upon the payment of all prior
judgments and mortgages. He must therefore take his costs.

The Comnionwculth against Da vies. Wednesday,

Same against North. miu"^ ^^

TIIK defendants in Auifiist 1797 became severally bound to J'"^ ^^o"""'
1 1 1 r 1 r^^ ■ r • r i • • httsnoautho-

the commonwealtli before the Chief Justice of this court m rity to mode-

» recocmisance in 1000 dolls, conditioned for the crood beha-'^'*''"'''^"^'*

... . . * ICCOglll-

viour oi William Cobbctt until the next Oyer and Terminer to be sauce of^ood

holden by the justices of this court for the city and county of , !"\^"."">

^ , ;' . •' ' wlncli js for-

Philndclph'ia. The recognisance was alleged to have been taken rcitrd by an

in consccnience of a libel or libels published h\ Cobbctt in the "'^ "'",'.,
1 ' J curt. I he

newspaper of which he was the editor; and upon the publication act of As-
of other libellous nutter by hiin before the court of Oyer •^"Jii'|"'p,y„^cr lo
Terminer, actions of debt were brought against him and his the court on-
sureties, on the recognisance. [c^.^nU^''^

sauce is f ir-
feited in court, as upon failure to appear, to prosecute, &c

Davies.

98 CASES IN THE SUPREME COURT

1804. The action against Davies was triL-d in March 1801 when a

"Co" ioi> ^'^'"'^''-^ ^^''^ Ibund for the commonwealth generally, with six
wc.tlih pence damages and six pence costs, upon which there was judg-
7 • ment. The cause was then removed to the Court of Errors,
where the judgment was affirmed. The action against iVorM
was tried in February 1804, with the same result in this court.
In each of these causes several important points were made for
the (lefendimt; as that the chief justice had no authority to take
surety of good behaviour out of court, not being a justice of the
peace; that it could not be taken before conviction, for the publi-
cation of a libel; {(i) that scire facias and not debt should have

{a) As the decision of the court of errors upon these points has not been

preserved to my knowledge by any {gentleman of the bar, I feci assured that

the opinion of the present chief justice upon the doctrine of surety of j^ood

behaviour, will be acceptable to the profession, and I therefore take tlic

liberty of inserting it. The facts of the case, which was decided at the

chambers of the Chief Justice on Monday, August 11th 1806, are sufficiently

dctailtd in the opinion. i ib ',»8

10 340 '

Commonwealth "^ Habeas Corpus to the keepei- of the gaol of the city
^ ''■ r &nd county oi' P/iiiadelphi a.

DUANE. J

TiLGHMAN C J. This case comes before me in consequence ofa habeas
corpus, (lii-fcu-d to the gaoler of the city and county of Philadelphia, com-
manding him to bring before me the body of Williavi Duane, together with
the cause of his being imprisoned. The gaoler in obedience to the writ has
produced the body of Wiiliuin Duane, and returned that he was detained in
prison by virtue ofa warrant of commitment from the mAyor of Philadelphia.
This warrant recites, that Williain Duane had been cliarged on the complaint
of the Marquis de CasaTrujo, made through the attoniey general, and on the
oath of William B. Hi^ht, with having on the 19th and 21st of July last, in a
public newspaper called tlic Aurora or General Advertiser, edited by the said
William Duane. ]5ublished certain libels on the said Marquis, and tliat the
said William Duane iiad been required by tlie said ma}()r to enter into are-
cognisance, as well for his appearance at the next major's court, as for his
good behaviour in the mean time, which lie had refused to do; and contains a
commitment of William Duane until lie shall enter into a recognisance as
aforesaid, or be delivered by due course of law.

From an examination that has been had before me, it also appears that the
said William Duane oflered before the mayor to enter into a recognisance
for his appearance, but refused to enter into one for his good behaviour. So
that the only question for my determination is, whdherit is proper to insist
on a recrifrnisance for the good behaviour of William Duane between this
time and the next mayor's court.

In the considerati(<n of tltls point are involved principles of importance,
which have ajritatcd 'ii" feelings and divided the judgments of many persons
both in tins and other states of the union

OF PENNSYLVANIA. 99

been the form of action; and that tht publiciition of a libel was 1804.
no forfeiture of the recognisance. Thes- points were discussed rommnr^
before the Court of Errors, and decided for the commonwealth; wealth
(as it is said.) But the point which led ultimately to the present ^•
argument, and which was principally urged in the action against ^^^^s^-
North, was this, that unless the jury might find less than the
whole amount, and this it was said they could not do, a recog-
nisance of this kind if forfeited by a libel would prove a direct

I Jiave considered it, certainly without passion or prejudice, and witli as
much attention as the short time allowed for decision would admit.

Surety for g-ood behaviour may be considered in two points of view. It i»
either required after conviction of some irulictable offence, in which case it
forms part of the judgment of the cou:t, and is founded on a power incident
to courts of record Ijy the common law, or it is demanded by judq^us or jus-
tices of the peace out of court, before the trial of the person charj^ed with
an offence, in pursuance of authority derived fioni a statute, made in the
34th year oi El-jiard .3. It is this last kind of surety we are now to consider.
• The statute 34 Edward 3. authorizes justices of the peace to take surety fov
good behaviour of all those tiiai are not of good fame, to the intent that
the public may not be troubled by such peisons It is su])posed that this;,
statute was made to prevent the disorders which were introduced by the*
soldiers oi Edward \.\\o third, numbers ofwiiom, after servinij in his armies
in France, were discharged in England. The natural meaninjf of the words
" persons not of good fame" seems to be, those who by their general evil
course and habits of life liad acquired a bad reputation, and were supposed
to be dangerouH to the communitj . In process of time, however, the con-
stniction of these expressions has been extended far beyond their original
meaning, .ind persons are now commonly held to find surety for their good
behaviour, who arc not generally of ill fame, but have only been chai ged w ith '
some particular offence. It is laid down by some ancient authors, that libel-
lers may be held to surety for good behaviour. But on searching tlie EvgUth
books of report<, I find but few cases in whic'i c )urts have given their opin-
ion on this point. The decisions of the Englia/i courts jirior to our revolution,
are, with some exceptions, received as autliority in our courts. Now it ap-
pears from the cas<"! before the revolution, tliat it was by no means an estab-
lislied practice, that a man charged with a lib<-l, sIkmiUI, bclbre conviction,
be held to surety for his good behaviour. In the cabe of the King v. Shuci/'urgt
in the year 1743, reinnted 1 Wilson. 2'J. the defendant was arnsleil, by
virtue of a warrant from liie secretary of state, for publishing a blas|)hcnioui
libel called " Old L- f>land's Te Dcutn." Upon being brought up to the court
of king's bench by habeas corpus in order to be bailed, he offered to enter
into the common recognisance for his appearance. The attorney general
In.sisted on bail f«r his good b'-jiaviour also. I'lie lord chief justice said it
had often been taken both ways, and he intended to take the opinion of all
tlie jutlgcs; he therefore, for the present, took the <lefendant'H recognisance
for his appearance only, and made him enter into a rule to put in bail for
his goo<l behaviour if the major part of the judgeu should ha of opinion iJmt

Uavies.

100 CASES IN THE SUPREME COURT

1804. restraint upon the press. Shippcn C. J. before whom ^x\d Smith

Common- J* ^^^^ cause was tried, told the jury as to this point that if they

wealth were of opinion with the commonwealth they might find for the

T- whole, as the court had authority under an act of Assembly to

moderate or remit the forfeiture. They accordingly found for

the whole as above stated and a judgment was entered upon

their verdict at March term 1804.

On the 13th March 1804 the defendants filed their petition

he oupht. Nothing- further appears to have been done in this case. In a mar-
ginal note of the report of it by sergeant Wilson, is mentioned the case of the
A'/'n^ V. Franilin, 5 George "id, when the Same point was argued before all the
jiidg-es, btit tliev never gave any opinion. Mr. Highniorc, in his treatise on
bail, published in the year 178.>, cites the case of the King v. Shuciburg and
seems to consider the law as still unsettled. It appears from these authorities,
that the English '}w\^es were unwilling to establish a practice, whicli they
might have thought hostile to tlie genius and spiiit of the nation. Let us now
examine how this matter has been considered in America. The United
States in general liavc at all times been very much alive to the liberty of the
press, and the riglit of trial by jur}' ; and their constitutions have shewn great
jealousy and sensibility on these points. In prosecutions of libels against the
king, iind officers of government, it has been usual in England to prosecute
by way of information; a mode of proceeding, by which the defendant is
brought to his trial by a petit jury, at the instance of tlie attorney geneial,
without the previous inquiry by the gi-and jury. The constitution of Pennsyl-
vania has taken special care to guard against this. Grand juries are not to
be dispensed with, excejJt in certain enumerated cases, of which libel is not
one. It also piovides that every citizen may freely speak write and print on
any subject, being responsible for the abuse of that liberty. I think the counsel
for Mr. Duane has gone too far, in contending that our constitution abso-
lutely prohibits tlie binding a man to his good behaviour for a libel, before
conviction. It only provides that a man may freely speak write and print,
at his own peril, being responsible either to the public or any individual
whom he may injure. It is general!} understood, and 1 think trul)', that this
provision was intended to prevent men's writings from being subject to the
previous examination and control of an officer appointed by the govern
ment, as is the practice in many parts of Europe, and was once the practice
in England: now, a man though bound to his good behaviour, may still pub-
lish what he pleases, and if he publishes nothing unlawful, his recognisance
will not be forfeited. Indeed 1 consider this point as having been decided
by the supreme court, and ultimately by the high court of errors and appeals
in the case of the ConiTnonwealtk^v. Cobbett, which I shall consider more par-
ticularly presently. But alti.ough it ban bten decided that a recognisance
when thus taken is not void, \et it never has been decided within my know-
ledge, that it is incumbent on a judge, or that it js prudent or proper, to call
for surety of good behaviour from a person charged with a libel, before trial,
and that is the point now be'oie me. Indeed from the charge dehvered by
C. J. Shipper in Cobbett's case, of which my brother Judge Smith has

OF PENNSYLVANIA. 101

that the court would moderate or remit; and on this day when 1804.
the matter was called up, the attorney general questioned the p _ " r~
authority of the court to interfere; whereupon that point was weulth
argued by Lervis for the defendants; Jf-Kean contra. v.

The act in question was passed on the 9ih December 1783. ^^^^^^•
The preamble recites that the act was passed " to the end that
" all fines, forfeited recognisances he. forfeited and recovered in
'* any courts in this commonwealth may be the more easily col-
favoured me with a ven' accurate note, I should not suppose that the chief
justice or either of the other judi^ts would liave thought it proper to cat!
for this kind of surety, except under very extraordinary circumstances. The
case now before me is attcndt- d with no extraordinary circumstances, so far
as it has come to my kiiowled^je judicially; aiid I must confine myself to the
evidence produced. The mayor, w!io was so obliginp as to favour me with an
account of wliat passed at his office, declared that lie considered the secu-
jity for i^ood b<;haviour as a thing quite of course, and for that reason only
would not dispense with it. And he al-o dtcl:.red, tha' he prepared the re-
coprnisance himself in what he conceived the usual form, without the instruc-
tion or direction of the attorney general. Now if this practice is established,
two consequences will follow, which certainly may be attended with great
inconvenience. In the first place Uie justice who takes the recognisance
mav fix it in whatever sum he pleases, and then if it should be forfeited by
X libel of the mildest nature, the whole penalty must be recovered, without
any power in tlic court to mitigate the punishment according to the nature
of the offence. And in the second j)lace, the defendant may be brought to
trill for a libel, to far as to Le burthened with the forfeiture of his recogni-
lance, without the previous investigation of a gi-and jury. No considerate
man will say that under certain circumstances these may not be very great
ovils. No man can e.xactly calculate Low far a practice of this kind, exer-
cised by wicked and daring hands, into which it may sometimes fall, may
stifle or even extinguish the spirit of honest investigation and necessary in-
quiry. And wliat is the occasion for it J '1 Ijc party complaiuing lias a right to
the protection of the laws and will receive it. The person accused will be
brought to his trial, and if convicted he will be punished according to the
degree of the oflence What muc does public justice require? But it is said,
it is necessary to prevent future libels. If future libels are published while
tlio prosecution is depcmling, they will be punished on conviction in propor-
tion to the obstinacy of the ofieinlcr. No man abhors more than I <lo the base
practice of libelling. It Is a crime forbidden by the laws of God and man,
and of a much iilacker dye than niany men secn> to be aware of All classes
and descriptions of men, all putties have in their turn lajncntcd and suffered
by the uncontrolleJ licentlousnesi of the pi ess. I aiu not without hopes that
the evil will be lessened, that a remedy will be found in the honesty and
good sense of a majority of the people, aided by the wholesome chastisement
which courts and juries will be called on from time to lime to inflict liut
in order to give those punishments their ftill cffica' y in the community, it
will be n«cc«ary in judicial proceedings to temper firmness with liberality,

v.
Davies.

102 CASKS IN THE SUPREME COURT

1804. " lertcd levied and paid into the public treasury;" and the fourth
Common- ^*'^^'^" tnacts " that all recognisances forfeited in the Supreme
wealth " Court or in any court of oyer and terminer &c. shall be sued
" foi- and be recoverable in the supreme court of this state,
" which is herebv empowered to order the said recognisances ^
'• to be levied, moderated^ or remitted, according to justice and
" their legal discretion." 2 St. Laws 167.

The Attorney General contended that the power of the court

never fore^ettini^ that humane principle, which in doubtful cases turns the
scale in ln\our of the accused.

I should have folt little difficulty in deciding the question before me, but-
for the case of Wtlliciin Cobbett, cited by the attorney general in his argu-
tne;it. Mr. Cobbett was, in the year 1797, bound with two sureties in a re-
cognisance for bis good behaviour, 1)v tl^e chief justice and present governor
M^Kenn whose opinion has great weight with me, bccau.se I consider him
as an eminent lawyer, zealously attached to the liberties of this country both
civil and religifuis. I have not been able to obtain an accurate statement of
the case of Cobbett, so far as relates to the binding of him to his good be-
haviour. Judge Smith's notes only contain an account of the action on the
recognisance tried in the supreme court. As far however as 1 have heard, it
differs from the present case in .some material circumstances. I have never
seen the warrant against Cobbett, but I have been informed that he was
charged in it with numerous libels against different persons, of which, on his
appearance before the chief justice, he avowed himself the author. In the
present case, BiKine is charged with publishing two libels against the same
person, and he lias not confessed that he is the author of either. As a judge,
I know nothing that is not legally proved before me. 1 must no/ act on .the
supposition that the defendant lias published numerous libels, because there
is no oath to that purpose, and by our constitution all warrants must be
grounded upon an oath or affirmation. Upon the whole, the most that can
be said with regard to recognisances for good behaviour is, that they are de-
mandable or not, at the discretion of the judge. They differ from recogni-
sances to keep the peace, in two important features: 1. Surety for gof)d beha-
viour is more exiensivc in its natvn-e than surety for the peace, and may be
more easily forfeited, and therefore should be exacted with greater caution.
2. Surety of the peace is demandable of right by an) individual who thinks
himself in danger of bodily hurt, and will make tlie neces.sary oaths; but this ,j
principle has not been applied to surety for good behaviour. 1 will not say
that there are no circiinistancfs in which surety for good behaviour ought
not to be exacted in cases of libels before conviction; on the contrary, 1 liavc
no doubt but there are occasions on which it may be proper and necessary to
insist on it. But I am of opinion that it will be most agreeable to the spirit of
our constitution, and most conducive to the suppression of libels, to adopt it
as a general rule, not to demand surety for good behaviour before cohviction.
Under these impressions I must diacha.ge the defendant, on his entering
into a recognisance for his appearance at the next mayor's court.

OF PENNSYLVANIA. 103

to moderate or remit was confined to forfeitures in court, as 1804.
upon recognisances to appear, to prosecute &c.: but that it did"!
not extend to a recognisance ot this kind forfeited by an act wealth
out of court.

Davies.

Lervis argued that the phrase forfeited in the Supreme Court
applied with as much force to a recognisance adjudged to be
forfeited in the Supreme Court as this had been, as to any re-
cognisance whatever; and although the forfeiture might have
been the consequence of an act out of court, yet from the gene-
ral expressions of the legislature, and from the superior neces-
sity for a power of relieving in cases of this kind it was fairly
to be inferred that all forfeitures if adjudged in court, were
subject to the equitable control spoken of. Very few recogni-
sances to appear and prosecute are ever taken in this court, as
it has no original criminal jurisdiction; and the court have at
common law a power of relieving in such cases.

[Yr.ATEs J. Upon legal grounds; but there maybe a reason-
able excuse addressed to the discretion of the court.]

Still the distinction between forfeitures in and oiit of court
does very little for such recognisances; for it is the staying
away, the refusal to appear and prosecute, that is the forfeiture;
the proclamations are merely to ascertain that the party is not in
court, but the forfeiture is in strictness by an act out of court.

But further; the clear object of the act is to estreat all forfei-
tures from the different courts and justices of the peace into the
office of the comptroller general. There can be then no legal
mode of ascertaining, certainly none of estreating a forfeiture
except from a justice of the peace, until it is forfeited in court;
and the instant it is so forfeited it becomes subject to the dis-
cretion of the court. A recognisance to keep the pi'ace, forfeited
by an assault and battery upon one Cecily was remitted by presi-
dent Co;i('tf in the Common Pleas oi Delaware ^ in August 1801.

Reply. The power to remit a forfeiture is both at common
law and by the constitution properly vested in the executive;
and the law in question interferes in this particular so materially
with the 9th section of the 2d article of the constitution, that it
must be considered as repealed.

[Shjppen C. J. The word in the constitution is remits in the
law moderate or rejnit; besides, the constitution does not con-

104 CASKS IN THE SUPREME COURT

1804. *^'" negative words; it says the governor may, but it does not

t; ; sav the legislature may not remit.]

Common- . o / j

wealth The law however as it derogates from the common law must
V. be construed strictly; the letter of it must be adhered to; and ii

Davies. thgj-e a^g some kinds of recognisances which are forfeited in,
and others which are forfeited out of court, the former alone
are subject to the provisions of the law. Of this distinction
there cannot be a question. Of the latter kind is the recogni-
sance in the present case; of the former are those to appear &c.
which are forfeited in court, not in consequence of doing an act
out of court, but for not doing an act in court, which is the place
of performance and also of forfeiture. But it is said these are
not a sufficient object for the legislature. This in the first place
is not the fact, for they exceed tenfold all other recognisances;
in the next place the section Avhich has been read adds to the
Supreme Court any court of Oyer and Terminer, General Gaol
Delivery, Admiralty Sessions, and special commissioners of
Oyer and Terminer, v/hcre none but recognisances to appear and
prosecute can be forfeited, or even be adjudged to be forfeited,
from a want of civil jurisdiction; so that the forfeitures in these
courts must be of that kind for which it is argued the law was
not made. The plain ground of the section is to give a power
of relief upon equitable grounds. >

As to the case oi Davies, however, there is another objection
to the interference of the court; it has been removed to the
Court of Errors, where the judgment has been affirmed; so that
to touch it is to affect a judgment of that court, (a) This objec-
tion is fatal; and even in North's case there was a judgment at
the last term, which is no longer in the power of the court.

At the conclusion of the argument the Court said that they
clearly could not interfere with the case of Davies, which had
been removed to a higher court; but they would hold the other
case under consideration until the following morning; when the
petition in both cases was dismissed.

Shippen C. J. There is abundantly more reason for a power
in the court to moderate or remit a forfeiture of this kind than

{a) When a judgment of this court is afiirnied in tlic high court of errors,
ihc record is remitted to this court for execution, as was done in this ca?e
on the 10th September 1804 before the arpuraent.

OF PENNSYLVANIA. 105

in those cases which come expressly within tlie law; ior, as it i804.

was argued upon the trial, if a publication in the newspaper —

^ ' ' . Common-

may be a breach, and upon such a breach the whole recogni- ^^.^.^it^

sance is forfeited, every justice of the peace may indirectly put v.
a restraint upon the press. I certainly told the jury that we had Davies.
an act of Assembly by which we might prevent the injury; and
I was probably misled by recollecting that in declaring upon
such a recognisance I always stated that it was filed of record
in the court, and so are the forms. But I am now persuaded
from an examination of the act that I was mistaken, and that
the relief is confined to forfeitures in court. It is to be regret-
ted that it is too late to afford the parties anew trial. The rclief
at present lies only with the executive. The opinion of the court
is that the petitions must be dismissed.

Smith J. I do not go merely by recollection in stating that I
did say upon the trial I had doubts as to its not being a restraint
upon the press; and then the Chief Justice said we had power
by the act to prevent injury. It was clearly a mistake, for the
act does not extend to such a forfeiture.

Per CuRiAiM. Petitions dismissed.

it«

ftv-iwS Albert V «y«i;ii-? Da vvsoN. Wednesdm,

•••"'J??, ' ^ SciMembcr

'rj5 \4« In Error.

96 ♦»»

TH IS was a certiorari to the Common Pleas of Philadelphia a justice ot"
county. The causi- originated before a justice of the pc^ce,|.^^^|^"^^ .
who gave judgment for Dawson the plaintiff below, upon a jud^-iTicnt
warrant of attorney, without issuing either summons or t'l- "/j',','",,j'.^,^^j"
pias. This judgment was aflirmed in the Common Pleas, and i'<). He must
upon the removal to this court the proceeding without sum- [[.a*,*.^,^,\ \^

mons or capias was assigned for error. the nature ni

a sunuiioiis
or capias.
M. l.rvTi for the plninriff in error, cited the act of April lOlh,

1 704, which follows the act oi March 1st, 1745. sec. 1. empow-
ering justices " upon complaint made to them for a debt or de-
" mand to issue a warrant in the nature of a summons or ra-
Voj. J. O

106

CASES IN THE SUPREME COURT

1804. *' pias as the case may require;" but it gives them no authority
A , „^,. ,.„ to take jurisdiction in any other way. (d)

Dawson.

Ross contra, said that the section did not contain negative
words, and that if the justict had jurisdiction of the amount,
a warrant of attorney from the party waived the benefit of the
ordinary proceeding. Though consent cannot give jurisdiction
it may waive process.

Shippen C. J. A limited authoritj-, such as is given to jus-
tices of the peace, must be strictly pursued. They cannot inter-
fere officially in a civil controversy without pursuing the steps
pointed out by the act.

Smith J. It has always been held that if the proceeding was
neither by summons nor capias, it was irregular.

Per Curiam. Judgment reversed,

(fl) Vidt Act April 9th, ,1807. M. 8. 8 St. Laivs ISO.

SuMMERiL against Elder.

106

525

3a8

Wednesday.,
Scpi ember
I2tli

indcbicfl to HT^HIS was an action of replevin for two hogsheads of coffee,

his principal A jj^ Avhich the defendant claimed property. It was tried at

Ships pro- 1 1 -

prrty to him Nisi Prius in February 1804, before Shippen C. J. and

on boaid a Smith T. when a verdict was found for the defendant, subject
vcssfl be- . . , . ,

l.mijin}^ to a to the Opinion of the court upon a case which was in substance

third person, ji^jg. £).ixvsoji and Watt, merchants at Cape Francois, were the

(although . . . „ -111

boundtoron- common agent of plamtifF and defendant, and were indebted to

furm 10 the j^q^]^ ^^ ^j^^. jj,^^^. hereafter mentioned, for the proceeds of sun-
agent s or- _ ' _ '
ders) and dry cargoes consigned to them. B. F. Garriguea the owner of

the captain ^^^ ^- y^^/-^ addressed her in the latter part of 1 801 to D. & W.

signs a bill ... . .

of lading de- with a direction to the captain to conform in all respects to their

livtrable to oj-jgrs. On the 23d Jan. 1802, D. & W. wrote to the defendant
the pnnci- •^ '

pal, the pro- as follows: "This goes by way of Baltimore and is merely to
upon ves^t^in" '"^"'"'^^ V^^ t"^t ^^^^ shall ship for your account on board the
the phnci- " brig Julia., Samuel Holt master, sailing for your port on or

Sgen7c'innot"^'^°"'^ ^^^ '^^^ ^^'^^ month the quantity of 7000 lbs. coffee
counter-
mand or disturb the sliipment.

OF PENNSYLVANIA. 107

••'or thereabouts.* By her we shall write you more fully, and 1804.
" remain your assured friends D, and ^F.* It being your pro- c ~ ^ T

''portion of the balance of xhe brig Agnes' cargo. D. and /F." ^..
On the 31st January 1802, the captain having taken on board Eloer.
his cargo for Philadelphia^ signed bills of lading for eight hogs-
heads and nine barrels of coffee marked T E, deliverable to
the defendant or his assigns, one of which bills D. and W. left
with the captain together with letters for the consignees. The
brig was detained until the 4th of February when Cape Fran-
cois was burned by the blacks, and property to a great amount
in the stores of Z>. and W. destroyed. On the 10th February
D. and IV. prevailed upon the captain to deliver up the bills of
lading and letters; and with a view to equalize the loss among
their different employers, took two hogsheads from the quantity
sh.ipped for the defendant, and addressed them to the plaintiff,
presenting at the same time bills for the signatiu'e of the cap-
tain, varied accordingly from the former bills. The captain at
lirst refused to sign, as an alteration had been made in the
quantity shipped to his owner, but was compelled to it by the
assurance of D. and W. that until it was done the brig should
not sail. From the 31st January to the 10th February the ves-
el remained in the harbour under her first bills of lading, her
bulk never broken, nor the marks of the hogsheads or barrels in
any way altci-ed. On the 4th of March after an embargtj the brig-
sailed, and on her arrival, the captain being informed by the
defendant that according to a letter from J), and JV. the quan-
tity due by the bill of lading last signed fell short of the amount
shij)ped, by two hogsheads, put the property in question on
■hore, when the defendant got possession. The plaintiff entered
and secured the duties upon them, and then brought the pre-
sent action.

Upon these facts jJ. I.ivy for the plaintiff argued that the
common factor of both parties had a right to alter the destina-
tion in this case; that the captain wae^ the agent of Dtau.soti and
Watt since he was tied down in all respects to their orders; and
that the delivery of the projK-rty and bill of lading to him was
a revocable act, since it might be considered as a delivery to
iiemselvcs; and that the most to which the letter and first bill
of lading amounted, was a promise of a bill of lading, which
however it might affect the contracting parties, passed no pm

Elder.

108 CASES IN THE SUPREME COURT

1804. perty. Thr interft-rence by the agents was to, equalize a severe
n ^ loss among many, before the means of so doing had gone out of

oUMMKHIL , . I

their hands.

JRaiv/e for the defendant answered that the coffee was shipped
from the funds of Elder in the hands of Dawson and Watt, that
,the property vest-.d by the delivery to the captain, that it was
at the defendant's risk from the 31st Januarij to the 10th Fe-
brvaru^ and that the interference of DarvsoJi and Watt was to
make Eider contribute to SummcriP.^ loss, which they had no
right to do. A bill of lading clearly vests the property in him
in whose favour it is made and for whose use it is delivered,
Evans v. Marietta {a) and the captain became the agent of El-
der as to this property the moment the bill was delivered. How
then could the general agents of Elder devest the property?
They could do it only in the character of agents, or under the
common power of stopping in transitu. As agents their autho-
rity was supplanted b}- that of another agent upon the delivery
of the bill of lading. As to stopping in transitu this case never
occurs but as between vendor and vendee, and as between them
the vendor can stop in transitu only when the vendee has become
bankrupt, or when no consideration has passed from the ven-
dee to him. Snee v. Prescott^ (J>) Wright et al. v. Campbell^ (c)
Lickbarrovj v. Mason^ (d) Ellis and others v. Hunty (e) Kinloch
v. Craigy {/) Sxveet v. Pym, (_§-) Alderson v. Temple, (^li)

Levy in reply said that none of the cases cited came up to
this, uhich was a delivery to the factor's own shipj and that al-
though a bill of lading did usually vest the property, yet for
the sake of doing complete justice it was construed otherwise in
the case of stopping in transitu. Justice here very clearly sup-
ported the plaintifl's claim.

Shippen C. J. Even granting that the parties in this case
have equal equity, still he that has the law must prevail. Now
there can be nothing more clear than that upon the delivery of
the bill of lading to the captain upon the 31st of January^ the

Ca) 1 L. Ray. 271. (d) 2D.tJ'£. 63. (g) 1 East 4.

{b) 1 Atk. 245. (e) 3 D. if£. 466. (/,) 4 IJurr. 2239.

OF PENNSYLVANIA. 10??

property vested in the defendant, it continued at his risk from j 304.
that time to the 10th February^ and had it been lost he and ^^^^ sTJ^mmwRTj
Daivson and Watt would have been the sufferers. After having -v.
30 vested, there was no authoritv in the agents to change the Elder..
rights of the parties. The opinion of the court is that there
jTiust be

Judgment for defendant.

WoGLAM and another against Burnes and Adams. T/iursd<n,

Sci'lciiiber
.... ^■''•''

'TT^HE matters in variance in this cause between the parties Paitot a rc-
-*- were referrc-d under a rule of court; and at the last term?"'* ^^^^'

ierces niav

the referees reported that there was due from Buriics to the b.- cmfi. m-

plaintiffs 11/. and from Burnes and Adams to the plaintiffs ^'''^,'''^ ^''?
' * residue set

31/. 5*. 7d. aMc. But

tlio court

canncit strike

Ross for the plaintiffs moved to set the report aside, as from out apart.

the face of it the referees had decided matters not submitted to

them, finding a sum due to the plaintiffs from one of the

defendants.

Frazer for the defendants replied that the part of the award
objected to was surplusage; that there was a perfect finding
between the parties in this suit, and that the court might strike
out the objectionable part.

Shippen C. J. The court cannot strike oat part of an award,
but they can confirm a part and set aside the residue, which in
this case will have the same effect. That jjart of the report
which relates to Burnes alone must therefore be set aside, and
judgment be entered for the joint debt.

Jutlgmenl accordingly.

110 CASES IN THE SUPREME COURT

18W.

'piursday, MiTCHELL aO-ahlSt SmITH.

September "

lb 110;

2s 1 196

4sflB9

4s. 17a

Hst2'24

Hsr26A

6VI/233

7wl64

7w296

Iw3l83l

7ws234|

3g 37

13th.

In Error.

338

'iH

138

23(i

505

4G7

201

A contract f |'*HIS was a writ of error to the Common Pleas oi Luzerne
rliase and coiintj', and the record presented the following case,

sale of lands ^;„,Y/j^ the plaintiff below, brought an action of debt against
vania under Mitchell upon a sealed note for 483 dolls. 33 cts. dated the
;lie Connec- jjth March 1796 and payable to Smith or order at the expira-

' icut title is . .

unlawful and tion of three years from the date with lawful interest. The de-
void, al- fendant pleaded payment with leave to give the special matter
act of Uth ii^ evidence. Upon the trial of the cause before President Rush

April 1795, qj^ ^he 23d April 1 802 it was in evidence that the note was given

neither ex- . „

])ressly says for land near Frenchtown m Luzerne^ and out ot the seventeen

so, nor con- townships, which land had been granted to the plaintilT by the
tains any . r i o i i i

prohibitory committee oi the Susquehanna company agreeably to a resolve

clause, but ^f ^|^g company. That the plaintiff by deed bearing even date

merely ui-

Jlicts a pe- with the note conveyed this land to the defendant. That the

iialty upon plaintiff and defendant went together to view the land before the

ihe oncndcr. i °

Such a pe- execution of the note or deed, and that upon the completion of

nalty implies ^i^g contract the defendant was put in peaceable possession of

.1 prohibi- . ' , ' '

ion. the land and had so continued ever since. Tiiat the defendant

at the time of the contract had full knowledge of the law against
intrusions in Luzerne county, and of the general dispute relative
to titles in the county.

Upon these facts and the act of 11th April 1795 the counsel
for the defendant insisted that he was entitled to a verdict for
the following reasons: First, because the consideration upon
which the note was given was illegal, and therefore the note was
void. Secondly, because the transaction on which the contract
originated was against the general policy of the law, and there-
fore should not be carried into effect. Thirdly, because the con-
sideration on which the note was given had failed. His Honour
in delivering the charge of the court stated their opinion upon
the several matters of law against the defendant, and told the
jury that if they were of opinion the defendant knew and was
acquainted with every material circumstance relative to the
i)argain, it was their dutv to make him pay the money with the

OF PENNSYLVANIA. 11]

interest thereon; but if thev were of opinion he was in any de- 1804.
gree imposed upon or purchased ignorantlv, in that case they 77
ought to find a verdict in his favour. The jury found for the x..
plaintiff. Smith.

To this charge a bill of exceptions was tendered and sealed,
and the record removed to this court.

The act of assembly in question enacts, section 1st, " That
" if anv person shall after the passing of this act take pos-
" session of enter intrude or settle on any lands within the
*' limits of the counties of Northampton^ Northumberland, or
" Luzerne, by virtue or under colour of any conveyance of
*' half share right or anv other pretended title not derived
" from the authoritv of this commonwealth or of the late pro-
*' prietaries of Pcnnsyhonia before the revolution, such per-
" son, upon being duly convicted thereof upon indictment in
" any court of oyer and terminer, or court of general quar-
" ter sessions to be held in the proper county, shall forfeit and
'^ pay the sum of two hundred dollars, one half to the use of the
'•' countv, and the other half to the use of the informer; and shall
" also be subject to such imprisonment not exceeding twelve
" months, as the court before whom such conviction is had may
" in their discretion direct." The second section enacts, " Tliat
" ever)' person who shall combine or conspire for the purpose
" of conveving possessing or settling on any lands within the
" limits aforesaid under any half share rjght or pretended title
" as aforesaid 8cc. shall for every such offence forfeit a sum not
" less than five hundred nor more than one thousand dollars,
*' one half to the use of the county, and the other half to the use
" of the informer; and shall also be subject to such imprison-
" ment at hard labour not excc( ding eighteen months as the
" court in their discietion may direct." 3 St. La7v.s 703.

The cause was argued in March and September terms 1803
by IV. Titghn\an and iM'-Kean (attorne}' general) for the plaintiff
in error, and by Rawle lor the defendant in error.

For the plaiiuiff in error it was contended tliat the transaction

on which the debt arose was forbidden I)y the law of this state,

ind llierefore that no court of this commonwealth would sustain

.w\ action for carrying it into effect. The act of 1 1th April 1 79.)

imposes a penalty of fine and imprisonment upon persons who.

112 CASKS IN Till': SUPREME COURT

1804. iinclcr colour of a conveyance of half share rights, intrude and
, J ^ settle upon lands in Lvzcrne out of the seventeen townships, or

,,. who combine or conspire ior the purpose of conveying posscss-
Smith. ing or settling them. The lands sold by Smith are of this de-
scription; the conveyance and the possession were confessedly
under colour of a half share right; and the naked question is
whether the contract having this effect in view is not absolutely
void in all its parts. Such a contract violates the principles of
morahty and decency, by producing a contempt for the laws of
the country, and thereby creating habits of disobedience and
licentiousness; it opposes the principles of sound policy, by
nourishing a spirit of hostility to the rights of this state over a
portion of her territory solemnly adjudged to be hers by the
decree at Trenton^ and which she has endeavoured to defend
by a great variety of laws; and it tends to contradict or evade
the particular law in question, a law of extensive and important
concern. Under each of these points of view the contract is
void.

1. The common law prohibits every thing contra bonos
mores. Jones v. Randall, (a) It was upon this principle that a
wager as to the sex of the chevalier d^Eon was held to be void
in Dacosta v. Jones; (F) and so of a bond given to a woman to
live in a state of concubinage, in Walker v. Perkins, (c) Courts
of justice should be preserved in perfect purity, and should
refuse all countenance and support to transactions of this kind.

2. In like manner all contracts militating against the general
policy of the laws, are prohibited and void. For this reason a
wager between two voters with respect to the event of an elec-
tion before the poll begins is illegal, and no action can be sus-
tained upon it. Allen v. Hearn. (d) So marriage brocage bonds
are void; and the courts set them aside not for the party's sake,
but for the benefit of the public. Debenham v. Ox. {e) It is
the same with all contracts in restraint of marriage. Loxoe v.
Peers. (/") A promise to indemnify a gaoler for letting a prisoner
escape is void, because the consideration is against law; Martin
v. Blithman; (^) and so are general restraints on the exercise

(rt) Covip. 39. (e) 1 Vez. 276.

ib) Cmi'p. 729. (/) 4 Burr. 2230.

OF PENNSYLVANIA. 115

of a trade, whether bv bond covenant or promise, with or with- 1 804.
out consideration; 'they are a public mischief. Mitchell \. -^^J/- Mitchell
?iolds. (a) It is not necessary that to make the contract void it v.
should be against the policy of the common law; it is equally Smith.
illegal if it violates the policy of statutes. A promise made by
the friend of a bankrupt to pay money in consideration that the
assignees and commissioners would forbear to examine him on
certain points, is void as being against the policy of the bankrupt
laws, Nerot v. Wallace; {h) and where an English subject in
Guernsey sells goods, knowing it to be the buyer's intention to
smuggle them into England^ he cannot maintain an action in
Enq-land for the price; it is against the policy of the revenue
laws, as well as immoral. Clugas v. Penuluna. (c) And even if
a foreigner, not subject to the English laws, sells goods with a
knowledge that thevare to be smuggled into£;2,§ /anfl^,and assists
in the transaction by packing them in a convenient way for
smuggling, no court in England will sustain an action for the
price. JVaymell v. Reed, (d)

5. But it would be sufficient if the case stood merely upon
the ground of its being a contract to do a thing which is made
unlawful by act of Assembly. It is true that the act does not say
that contracts to give possession of land under half share rights,
or for the convevance or purchase of them, shall be void; there
was no necessity for it. It prohibits the possession and the com-
bination to convey, and inflicts a severe penalty upon the offend-
ers, and that is enough. " Every contract" says chief justice
Holt "■ made for or about any matter or thing which is prohibit-
" ed and made unlawful by any statute, is a void contract,
" thougli the statute itself doth not mention that it shall be so,
*' but only inflicts a penalty on the offender; because a penalty
" implies a prohihition^ though there are no prohibitory wo^ds
" in the statute." Bartlctt v. Vinor. {e) The consideration is ille-
gal, and the assumpsit or obligation void. Allen v. Retscoiis (f)y
Sidlivon v. Greaves (g), Mitchell v. Cockburne (Ji)^ Stackpolc v.
Earle ( i), Baker v. Roger;. (^).

(rt) 1 /-■. Wms. 192. (./") 2 i-r-r 174

{b)ZD.'<:XE. 17. {g) P.iriS.

(f/) S D.iJf E. 599. (/■) 2 Wilt. 133.

(e) Carth. S52. f /•) Cro. JiHe. 78P

VOT.I. P

114 CASES IN THE SUPREME COURT

1804. For the deftndant in error it was argued, that since the note

MiTc Fi ^" question was given under a lull knowledge oi the circumstan-

■u, CCS without a suggestion ol fraud, he should be made to pay it;

Smith, for it is good at common law, and a good consideration was given

for.it; it is not against the policy ol the laws; and it is not void

under the act of 1 1th April 1 795.

1. It is good at common law. The mere occupancy of the land
was a beneficial interest, and the sale of a possession was always
valid. It does not appear that there is in any person a title to
this land derived from this state; it must therefore be taken to
be such as Smith might lawfully enter to settle and improve,
those being the only terms upon which land is granted by this
state since the act of 22d September 1794. The possession was
a good consideration for the note ; and if Smith had not even a
colour of title, and the deed passed nothing, still the sale passed
an interest against every one but the commonwealth and claim-
ants under her; no third person could eject Mitchell^ and he
might maintain trespass. Bull. N. P. 85. 93.

2. It does not oppose the policy of the laws. This is always
a delicate question for courts; to a certain extent the decision
involves matters not strictly within their province. But at all
events the application of the principle should be very plain; and
there is no case in which it could be less so than in this. It is
impossible to say what the policy of this state has been in this
particular. It has assumed every shape. At times the laws have
been gentle, at other times severe; in some instances persuasive,
in others menacing; and from a desire to promote settlement
and emigration, at the same moment that it has supported its
pretensions to the territory in question, the legislature has left it
in doubt which was the oI)ject most at heart, and of course
whether the policy of the laws was most evident to encourage
population, or to destroy the Connecticut tide. If settlement and
population be the policy, the present contract favoured them.

3. The contract is not void under the intrusion law. The act
contains no prohibitory words, nor does it declare the contract
to be void; and it may be laid down as a safe principle that
where a statute imposes a penalty upon doing an act which is
not an offence at common law, and contains no general prohibi-
tory clause, a contract relative to the subject of it is not void,
though the parties may be subject to the penalty. The general
rule i& that a penal statute should be srictly construed; and if

OF PENNSYLVANIA. ^15

the statute in creating a new offence specifies particular reme- igo4.

dies without containing a general prohibitory clause, this strict 73^

construction is applied not only to the character of the offence ^^
but to the mode of punishment. Castle's case (a), King' v. Mar- Smith."
riott (b), King v. Wright (cj, King v. Balnie {d)^ Hartley v.
Hooker, (e) Now avoiding the contract is surely a mode of
punishment, a punishment of the severest nature because the
offender does not read it in the law. But consider the avoid-
ance of the contract not as a mode of punishment, but as a mere
effect of the law, still it is a violation of this principle of strict
construction.

The Stat. 16 Car. 2. made contracts for money won at play
void; the stat. 9 Arme says that bills notes &c. for money won
or lent at play shall be void; but as it does not say that contracts
for money lent at play shall be void, such a contract was support-
ed in Robinson v. Bland, (^f) So a bond to reimburse a person
who has paid a difference upon a stock contract is good, although
7 G. 2. c. 8. imposes the penalty of 100/. upon paying such dif-
ferences. Faikneij v. Reynous Q^"), Petrie v. Hannay (Ji)^ IVet-
tenhallx. Wood (i), Burjrar v. Walmsley (k'). The cases cited
on the other side do not apply; they are cases of offences at
common law, or under statutes making void the contracts or
containing prohibitory words. Baker v. Rogers is the case of
simony, which Lord Coke says is odious to the common law.
3 In.st. 5Cy. 4 Bac. 465. Stackpole v. Earle was a bargain ex-
pressly made void by 5 and 6 Edxu. 6. Sullivan v. Greaves and
Mitchell V. Cockbnrne were under 6 G. 1. c. 18. which declares
such contracts to be ipso facto void. The only case remaining
is Burtlett v. Viyior containing Lord Holt's diction; but it was
in a case of simony and should be confined to it. The revenue
cases may be considered as of the same nature. The customs
are of great antiquity, a branch of the royal revenue, and there-
fore smuggling may be an offence at common law and against
the constitution; the English courts have however in cases affect-
ing the revrnue strained the Jaw to its utmost limit. The act

(a) Cro. Jac. 644- (/) 'J Bun- 1081 .

U)l S/urjj 398. nnte {t>'j (^) 4 Burr. 2U69.
(c) 1 Burr. 544. (A) 3 IJ. Isf E. 418.

(f/)C,/w/>. 650. («■) 1 ij/.. 18.

ff) Cir.vp. .524. f k) 3 Sfra. 1249.

1 16 CXSES IN THE S^UFREME COURT

1 804. of 6th April 1 802, which makes this kind of contract void, shews
Tl that it was not so before. 5 St. Laws 198.

31ITCHEI.L -, , ,

Cia: adv. viilt.

Smith.

On this day the judges delivered their opinions.

SniPPEN C. J. This is a writ of error to reverse a judgment
rendered in the court of Common Pleas for the county of
Luzerne, in an action brought on a bill obligatory for the sum
of four hundred and eighty three dollars and thirty three cents;
to which the defendant pleaded payment, with leave to give
special matters, in evidence.

It appears on the record that the consideration for this bill
was a tract of land conveyed by the plaintiff to the defendant,
lying without the seventeen townships, in the county oi Lu-
zerne, and held by him under a deed from a committee of the
StisqiK hanna company, under the Connecticut title, and not
derived from the authority of this commonwealth, or of the
late proprietaries of Pennsylvania before the revolution. The
principal question in the case is whether this be a legal or illegal
consideration for the bill, and whether the contract for the sale
and purchase of this land is a violation of the laws of this com-
monwealth, so tainting the whole transaction, as that this court
cannot legally afford their aid to carry the contract into exe-
cution.

The mischiefs intended to be i-emedied by the act of 11th
April ir95, were of a grievous nature. A warfare had been
carried on between the claimants of land under the title of
Connecticut, and the claimants under Pennsylvania for many
years, and many lives had been lost in the contest. It was at
length found necessary for congress to interpose. They thought
fit to appoint judges or commissioners to decide upon the claims
of the respective states, who after a full and solemn hearing
made their decree at Trenton, establishing the right of govern-
ment over the country in question to be in Pennsylvania, but
without deciding the particular tides of individuals claiming
the right of soil. Notwithstanding this decree, not only the old
setile/s under the title of Connecticut retained their possessions,
but a great number of new persons under the same pretended
title intruded into this part of Pennsylvania, and possessed
themselves of, and settled, such vacant lands as they chcse.

OF PENNSYLVAMA. 117

The legislature of Pemisi/lvania passed repeated acts of 1804.

Assemblv to remedy the evils consequent upon such intru-T^J

- . . 1 ••II- Mitchell

sions, some of them with a view to compromise with the first -y,

settlers. All however proved ineffectual to prevent new illegal Smit«.
settlements. At length the act in question was passed, called
the Intrusion Law. This act is of a public nature, and intended
to remedy a public evil. The point relied upon by the plaintiff
is that the land sold bv the plaintiff and purchased by the
defendant, was fairly bought and sold, all the circumstances
being fullv known to both parties, and curried into execution on
the part of the defendant, by his taking possession and occupy-
ing the land; and that although die act of Assembly imposes a
penalty on the party offending, yet it 7io xvhere invalidates the
contract. On the part of the defendant it is contended that the
contract which was the foundation of this obligation, having
been made in violation of the good policy and direct provisions
of the act of Assembly, this court will not afford their aid to
carrv such a contract into execution.

What then was the contract? It ajjpears to be a contract for
selling and conveying a tract of land which the plaintiff lield
under a deed from the committee of the Su.squelianna com-
pany, or in other words under a Connecticut title. What says
the law? " If any person shall enter into possession of, or shall
*' combine or conspire for the purpose of conveying^ possessing,
" or settling on any lands y itliin the ascertained limits, under
" colour of any half share riglit or pretended title not derived
" under the government, he shall forfeit," Sec. Is not the actual
conveying, possessing, and settling this land direct evidence of
combining for that purpose, and <jf course a direct violation of
the law? Hut it is objected that where a law creates a new
offence and prescribes a specified mode of punishment, no
other mode can be pursued. This is generally true where the
act contains no prohibitory clause; in which case the conunon
law punishment by indictment might be inflicted, although the
piuiishment directed l)y the act was bv bill, plaint, or informa-
tion. Here indeed there is no general j)rohlbit(jry clause, the
act directing only that if any person shall do so and so, he shall
be punished so and so. Is this however a case involving a
double punishment by prosecution? All that is contended for
is that the contract is illegal, being founded on a breach of the
law, and of consequence a void contract, and cannot be enforced

118 CASES IN THE SUPREME COURT

1804. in a court of law. And for this purpose there cannot be a more
Mitchell ^^P^'^^s authority than the case in Carth. 252. where Lord
V. Chief Justice Holt says, " that every contract made by or about
Smith. '» a matter or thing which is prohibited, and made unhiwful by
" any statute, is a void contract, though the statute itself doth
*' not mention that it shall be so, but only inflicts a penalty on
*' the offender; because a penalty implies a prohibition, though
" there arc no ])rohibitory words in the statute." This autho-
rity, although perhaps it might not warrant a conclusion that a
penalty implies a prohibition for the purpose of making the
offence punishable by indictment, in case the law had prescribed
another and a specific punishment for the offence, yet it cer-
tainly 13 an authority to prove that a contract about a matter
prohibited by statute is unlawful and a void contract, although
the act does not expressly say so, and that a penalty implies a
prohibition, so as to make the contract void. The spirit of this
^ law in Carthexo has been followed up in numerous modern
cases, particularly where goods have been purchased abroad
with an intent to smuggle them into England. In these cases
the seller of the goods, although a foreigner residing in a foreign
country, cannot recover the price of his goods in England^ if
he were any way concerned in the smuggling transaction; the
whole contract being tainted and nullified by the illegal act, so
as to prevent the recovery of the debt in the country whose
laws were violated.

I would barely add, that if we could enforce the payment of
the consideration money for this land, we must likewise have
been obliged on the other hand to enforce the delivery of the
possession, in case the money had been paid and possession
refused, which clearly would have been a most glaring infrac-
tion of the law; the remedies must be mutual or not at all.

This subject has been lately canvassed in this court, in the
ease of Maijbhi v. Coulon^ where we were compelled to resist
the payment of an otherwise honest demand, on account of
its being founded on, and connected with a breach of the laws
of trade, in covering the property of a foreigner by using the
name of a citizen of the United States^ in obtaining the regis-
ter of a ship.

For these reasons I am of opinion the judgment below must
be reversed.

OF PENNSYLVANIA. 11^

Ye AXES J. Whether this case be considered on prbiciple or 1804.
precedent^ I am of opinion that the judgment of the Common "
Pleas cannot be supported. ^^

Courts of justice sit to carry into execution dispassionately Smith.
the general will of the community disclosed by the laws. It
would seem a solecism in jurisprudence that a contract which
necessarily leads to defeat the provisions of an act of the legis-
lature, of the highest public concernment, should receive judi-
cial sanction and support. The single bill on which the action
is founded is dated 11th March 1796, and therefore the laws in
force at that time only, can affect our determination. The intru-
sion act was passed on the Wxh April 1795. [His Honour here,
recited the first two sections.]

The bill of exceptions states that a deed bearing equal date
with the single bill, was executed by the defendant in error to
the plaintiff for 1500 acres of land, in SniitliJieldio\vnsh\\) in the
county of Luzertie^ which the former claimed by a grant of the
committee of the Susquehanna compan}-, out of the seventeen
townships; that both parties went together to view the lands
previous to the execution ot the bill or deed, and that the plain-
tiff in eiTor was /;?/r in possession^ and continued therein since
the time of the contract.

It is evident therefore that the agreement was entered into,
in direct violation of the intrusion act, yor the purpose of con-
veifin^^ possessing^ and settling \\\c lands interdicted, under a
half share right or pretended title not derived from the authority
of this commonwealth, or of the late proprietaries. It openly
attacked the sovereignty of the state, over a considerable part
of the lands clearly comprised within her chartered limits.

In Booth ct al. v. Hodgson et al. 6 T. R. 409. Lord Chief
Justice Kent/on observes, that " it is a maxim in our law, that
" the plaintiff must shew that he stands on a fair ground, when
" he calls on a court of justice to administer relief to him."
And in faques v. IVithey and Reidy 1 H. Bl. 67- it is said by
counsel, and seemingly assented to by the court, that " where an
" action is in affirmance of an illegal contract, and the oljject of
" it is to enforce the performance of an engagement prohit)ited
'' by law, clearly such an action was in no case to be main-
" tained." And Lord Chief Justice Ellcnborough in the late
case oi Edgar et al. v. Fowler in 1803, has said, " We will not
" assist an illegal transaction in any respect; wc leave the matter

120 CASES IN THE SUPREiML COURT

1804. " as we find it, unci then the maxim applies, mcl'ior cat condit'w
TvT"^ '~ '"'' possidentis.'*'' 3 East 225. A broad ciound is laid down by
7, Lord Chief Justice Ho/t in Bartlctt v. Vinor^ Carh. 252. in

Smith, these words: " Every contract made for or about any matter or
" thing, which is prohibited and made unlawful by any statute
" is a void contract^ though the statute itself doth not 7nention
" that it shall be so,, but only inflicts a penalty on the offender;
" because vl penalty implies a prohibitioUn, though there are no
" prohibitory words in the statute." If the law is correctly laid
down in these authorities, i run little hazard in asserting that
the suit of the plaintiff in the Common Pleas cannot be sup-
ported.

It cannot be denied that contracts which violate the rules of
decency or morality, or oppose principles of sound policy of
the country are illegal and void. The cases cited on the part of
the plaintiff in error fully prove the positions.

So also of contracts which immediately tend to defeat the le-
gislative provisions for the security and peace of the community
though not made void by statutes. Thus in Biggs v. Lawrencey
3 T. R. 454. a contract for goods to be smuggled into England
was held invalid; and it is there said that one v/ho seeks redress
in a court of law must not shew that he broke the laws of his
country. In Clugas v. Penaluna,, 4 T. R. 466. it was resolved that
an inhabitant oi Guernsey cannot recover in England for goods
sold there, if intended to be smuggled into England. It was held
immoral to evade the laws of the country, though the act was
done in Guernsey,, and though the contract might be legal in
Guernsey and enforced there. In IVaymellv. Reed ct al. 1 T. R.
599. a vendor of goods abroad shall not recover the value of
goods packed up in order to be smuggled into England; for
even foreigners shall not be allowed to subvert the revenue
laws. In jyitchell et al. v. Cockburne,, 2 H. Bl. 379., A. and B.
were engaged in a partnership in insuring ships &c. which was
carried on in the name of A., and A. paid the whole of the losses;
such a partnership being illegal by the statute of 6 Geo. 1.
f. 18. A. could not maintain an action against B. to recover a
share of the money that had been so paid; because no contract
arising directly out of such an illegal proceeding could be the
foundation of an action. In the case before cited, Booth et al. v.
Hodgson^ 6 T. R. 405. A. B. and C. became partners in insur-
ing ships contrary to the said statute of 6 G. 1. c. 18. sec. 12.

OF PF-NNSYLVANIA. 121

bm it was agreed that the policies should be vindervmtten in 1804.
the name of A. only. Several policies were effected, and the j^jTtchell
premiums received bv C. and D., and it was held that A. could v.
not recover against C. and D. And in Camden v. Anderson^ Smith-
6 T. R. 730. a policy effected in contravention of a statute
made for the purpose of protecting the monopoly granted to the
East India company was held void. Courts will not enforce
contracts injurious to and against the public good. Per Ch.
Justice, 2 Wils. 348. Many contracts which are not against mo-
ralitv are still void as being against the maxims of sound policy.
Per Lord Mansfield^ Coivj). 39.; and again in the same book
p. 343. his lordship uses the following expressions: " The ob-
jection that a contract is immoral or illegal as between plain-
tiff and defendant sounds at all times very ill in the mouth of
the defendant. It is not for his sake however that the objection
is ever allowed; but it is founded in general principles of policy
which the defendant has the advantage of, contrary to the real
justice as between him and the plaintiff, by accident, if I may
^ay so. The principle of public policy is this, ex dolo malo non
oritur actio. No court will lend its aid to a man who founds his
cause of action upon an immoral or illegal act, if from the
plaintiff's own stating or otherwise. If the cause of action ap-
pears to arise ex turpi causa or the transgression of a positive
law of this country, there the court says he has no right to be
assisted. It is upon this ground the court goes, not for the sake
of the defendant, but because they will not lend their aid to
uich a plaintiff. Where both are eqiialUi in the wrong, potior
fst conditio defendrntis.'''' These observations afford a decisive
answer to part of the ingenious arguments of the defendant's
counsel.

But it has been further objected that most if not all of the
cases relied on, cither respect offences prohibited at common
law, or such as had been theretofore created by statute, and
particularly smuggling transactions, which the courts were ex-
tremely jealous of, ;is they defrauded the royal revenue.

It was said that the act of Gth April 1802 (5 St. Laws 198.)
was made to sujjply the v( ry deficiency which existed before,
and which was now attempted to be supplied by a judicial deci-
sion; for. V(?c. 4th vacates such contracts as the present, and the
act did not take effect till tlie 1st Mai/ 1802.

I answer that it would be no great stride, in my idea, tn

Vol. I. Q

122 CASES IN THE SUPREME COURT

1804 .maintain that after the decree at Trrnto?}, the sales of titles
vj„T~ within the limits o{ Pcnnsijhania^ under the grants of a sister
7.. state not recognised by our laws, would be indictable on the
Smith, principles of the common law. Such acts are immediate attacks
on the sovereignty of this state, tend to violences of the most
alarming nature, and are public evil examples. But supposing
it to be otherwise, and that the authorities in the English books
related merely to smuggling transactions, (though the fact is
contrary,) I t.ike it that the same grounds of decision which
influenced the courts in England to determine such contracts
to be invalid, would equally operate on our minds to declare
the same as to agreements which intimately affect the public
peace and national prosperity. In both cases the subject matter
is of great magnitude. The public revenue is endangered and
affected. Individuals are defrauded. Why should we not be as
tenacious as British judges in instances of public revenue
being defrauded, tending to infractions of the peace, and where
the very acts of contracting are express denials of the 7-ight of
the people over a large portion of the state? It was candidly
admitted during the argument that the deed, of which the single
bill in question was the consideration, vested no right or inte-
rest whatever in the grantee.

I will only add, that the subject of a contract ought to be
such a thing as men have a lawful right and power of stipulating
about, at pleasure. 1 Pozv. Cent. 164. The law, by forbidding
an act, takes from the contractor the power of obliging himself
to do it, and consequently prevents the person contracting from
gaining any right of requiring it to be done. Id. 1G5. A con-
tract or agreement is unlawful if it be to encourage unlawful
acts or omissions. Id. 195. On the whole, I am of opinion that
the judgment in the Common Pleas be reversed.

Smith J. concurred, and assigned his reasons.

Brackenridge J. The consideration of the bill in question
is the giving possession and the sale of a tract of land under a
title derived from what is called the Susquehanna company.
This claim is founded on the principle that the land is without
the charter boundary of Pennsylvania. Hence it is adverse to
the claim of this state both as to soil and jurisdiction. It is true
the mouth of the claimant paramount, the state of Connecticut.^

OF PENNSYLVANIA. 123

from whom the company derive their claim, is shut by a decision. j 804.
But this does not conclude the possessor as to right of soil, nor,,
in fact will it conclude his exertions as to jurisdiction. The ^,,
very object of the sale is to induce settlers, and increase strength Smith.
to support vexatiouslv the claim in the courts of the United
States, or by force independent of law. Shall the courts of the
state be called ujion to enforce contracts and assist combina-
tions against herself.'' Exercising jurisdiction, the state is bound
to preserve the peace and aid contracts, but not such as militate
against her own rights. It would be unnatural, and against rea-
son, which is a ground of the common law. It is against pub-
lic policv. Self preservation forbids it. So that independent of
any act of the legislature I must hold the transfer illegal, and
|23:he obligation given under such consideration void.

'Slj
96/

so' Judgment reversed.

«,

Lang and Whit aker as^ahist Ann Keppele Saturday,

September

Executrix of Georgp: Keppele. I5th.

Tf^HIS was an action of assumpsit to recover a partnership I'^ order to
-*- debt due by the house of Keppele and Zanfzing-er, the de-es^^le of a
fendant being executrix of the former, and the latter being still ^^ccased
alive but a certificated bankrupt before the action was brought, action foi^il
The declaration contained a recital of the partnership, and an P'^'t»^*>sl'ip
averment of the bankruptcy of Zantzinger since A'6y;/;t7t'A- ^„^tained
death. The pleas were non assumpsit, plene administravit, and-^S*'"^*^ '"s
debts of a higher nature. At the trial before Shippen C. J. and tiu-siirviving>

Smith J. at Nisi Prius in August 1804, a verdict was taken for P»'V".^r be a

cert J he lie d
the plainliffs, sul»ject to the opinion of the court upon a point i,;,„i;,.„pt (j^..

reserved, whether an action for a partnership debt can be main- ''"''-" "ciion

11 r 1 1 11 brouurlil.

tamed aganist the executor ol a deceased partner, the other
partner being alive, but u certificated bankrupt before action
brought.

Meredith for tiie plaintiffs now argued that the action was
well l)rought; for otherwise his clients would have a clear right
without a remedy. It is true as a general rule that the demand
stands good at law against the surviving partner, and that the

124 CASES IN THE SUPREME COURT

1804. executor of a deceased partner cannot in such case be pursued.

^Lant ^^^^ here the survivor is a certificated bankrupt; to pursue him

1,, is impossible. The only security of the plaintifls is in the fund

Keppele. of the deceased partner, which can be reached in this way

alone; and this court, giving effect to equitv principles, will

permit us to get at the fund, without regard to the strict ul'. of

law. Pollard v. Schajffer. (cT) Tliis is every day's practice in

Chancery. Lane v. Williams (b), Stephenfion v. Chiswell (c).

Our claim in equity is indisputable, for each partner is liable

for the Avhole debt; and on a judgment against two partners

execution may be levied on the goods of one.

But at all events the defendant should have pleaded this mat-
ter in abatement. Rice v. Shute (d)^ Abbot v. Stnith (e), Addison
V, Overetid (/)•

Levy for the defendant, argued that a plea in abatement
would have been ill, for he could not have given the plaintiffs
any other party liable to suit. Besides, the objection is not that
you should have joined Zantziuger^ for that would have been
irregular, but that you cannot sue the executrix at all under the
present circumstances; it is to the action and not to the exclu-
sion of the surviving partner that we object. If however a plea
in abatement would have answered, it is made unnecessary by
the declaration, which of itself shews that the action does not
lie. Chancery proceeds against the fund, but our courts against
the person; and if a proper party is wanting, notwithstanding
equity is a part of our law, the jurisdiction fails. It Js for the
legislature to fmd the remedy. The rule of law is clearly
against the plaintiffs.

At the conclusion of the argument all the judges were of opi-
nion that the plea in abatement would have been ill. At the
same time upon the principal question, Shippen C. J. Yeates
J. and Brackenridge J. were for the plaintiffs; but no opi-
nion was given till this day, when Smith J. expressed his as-
sent to the opinion of the court for the following reasons:

Smith J. The reasons assigned in support of this action I
have all along thought of much force; but I at first doubted

ia) 1 DaH. 212. (c) 3 Vez.jr. 292. (<?) 2 W. BL 947-

(*) 2 Vtrn. 292. {d) 5 Burr. 2611. (/) 6 i). b* E. 766. .^

OF PENNSYLVANIA. 125

whether sitting as a court of law we could give relief to the 1804.
plaintiffs. I now think however that wc are not controlled by ~~U^

the technical objection. The equity of the case is clearly with -j.
the plaintiffs, for the contract entered into with partners is Keppele.
sdways joint and several^ eacli partner is liable to pay the whole,
and contribution lies entirely among themselves. The partner
who survives is in this case a certificated bankrupt, who can no
longer be pursued-, the partner who is dead has left assets in
the hands of the defendant, which can be reached only in this
way. It is therefore a fair case for controlling the form of ac-
tion so as to give effect to the equity powers of this court.

Per Curiam. Judgment for plaintiffs.

Harris a^'ciinst Fortune. Tuesday,

" September

18U».

THE plaintiff in this cause recovered judgment for a swmless j^ ^,^^, p^^jj^_
than was requisite to entitle him to costs, and then issued tiH' levies by
,.,, ii^-^ ^ 1 . 1-1 execution

a ca. so. upon which the debt, interest, and costs^ were levied ^.^j^jj, ^^

hv the sheriff who paid thein over to the persons respectively «liicli he is
' not entitled,

interested. the court

will compel

T. Ross for the defendant obtained a rule upon the plaintiff'^"" ';> 7'^=

^ J • • 1 ^'' refund

to shew cause whv the costs up to the time ot rendering judg-ihem, even
ment, should not be refunded. jj^-^'^^^y

distributed
Franklm for tlie plaintiff now appeared to shew cause, andhy the she-
urged that the rule was of a very novel nature; that if the de- '"''^
fendant had not been compellable to pay costs, they might have
been stopjied in the siieriff's hands until a hearin,g in court; but
that after they had been paid over, and all proceedings in the
cause exhausted, up to the final distribution of the money, it was
irregular to open the cause by taking a ride in it. The proper
remedy was by action.

Per Curiam. The plaintiff^was the cause of the irregularity
by issuing execution for more than was due to him; and as the
process of the court was made use of to compel the defendant
to pny what by law he was not bound to pay, this summary pro-
cccdinp^ in th'- cause is the proper one to ( nforce repayment. ,

Rule absolute.

lb I'JGI
4y 4HH
Hs(4S»r,

lis CASES IN THE SUPREME COURT I l^'mi

1 805.

- Lessee of Frazer and others, Assignees of Greeves

Sc*pttmi)i r ^ bankrupt, against H a l low ell.

13th.

A. as aRint npijjjs ^yas an eicctment lor a house and lot in the city of

for B.. ami to B . . ^ , . . . ,

secure .1 PhUadclphta; and the following case was therein stated

dt bt (hie to £qj. ^j^j, opinion of the court, to be considered as a special verdict.

Imii, takes » *

a TTi'M-t.u'ap^e

of real estate it Q^ the 1 ^th day of March 1797, John Shields executed a

111 Ills own r 1 • •

mme iVom " mortgage of the premises in question to the defendant to

tl.c debtor, n secure a debt of 1207 dolls. 50 cts. On the 20th day of Au-

und tlien ob- . . .

tains a re- '"'' gunt 1800 the assignees oi John Shields^ by indorsement on

lease of the n the mortcraee, released the equity of redemption to the defen-

eqintv of re- o o 7 -i j ^ i

demotion. " dant. This mortgage was taken in the defendant's name, to
A retains the n secure a debt due by John Shields to Thomas Grecves, and for

title deeds •' •' .

and B. re- " his use, and the release was executed to the defendant Jor the

ceivestfic "said Grecves^s use." [A supplcmentarv case stated amoncr
rents and l ri . o

profits. Af- other things that the debt was by a note purchased in the

tenvards A. j.j.^^j.]jet for Greeves. which Halloivdl undertook to secure:
Jends Ins ' _ _ _ '

notes to B., that the name of Greeves did not appear in the transaction,
tTkos'thern ""^ ^^^^ ^^ known to Shields; and that the mortgaged premises
up, shortly were put up at public sale at the request of Shields^ and
bYs^I clar- hought in by Halloxvell^ after which Shields'' s general assignees
cdabank- released.]

si''ntes cani " -^^t^''' ^^ release was executed, which with the mortgage
not recover " always remained in the defendant's possession, the defendant
ironrA^mtiV' ^^"^'^ 7"/2C7?mA' Greeves his notes, which were discounted at the
ihej reini- " bank of Pennsylvania for his the said Thomas Greevcs^s use,
The an. mint " ^"^ which were frequently renewed till the 7th day of August
-0 paid for *' 1802, when the defendant paid for the said Thomas Greeves
" one of those notes amounting to 650 dolls, and on the 2d day
" oi September following paid another for him of 500 dolls.

" After Thomas Greeves .stopped payment and before the
" issuing of a commission of bankruptcy against him, the de-
" fendant told Greeves that he would keep the estate in question
"till he was reimbursed the 1150 dolls., which he had thus
" paid for him; but it is admitted that the mortgage and release
" were not originally executed to the defendant for the purpose
" of securing any debt due by Greeves to him, nor was any
" agreement subsequently made that the defendant should hold
" the estate as a security for any money owing by Greeves to

OF PENNSYLVANIA. 127

•* him. It is also admitted that Grefyf".? received the rents and 1805.
•' profits of the premises up to tl>e time of his bankruptcy. "Ti """"

' ' ' » -^ iUAZER

" On the day of December 1 802 Greeves was declared a -^,,

"■' bankrupt by the commissioners under a commission lawfully Hallo-
" issued against him dated the 19th November 1802, and the well.
" commissioners on the 21st December 1802 made a general
" assignment in the usual form to the lessors of the plaintiff, of
" all the estate and effects of the said Thomas Greeves for the
*•' use of his creditors.

" If upon the above facts the court shall be of opinion that
" the lessors of the plaintiff are entitled to recover and hold the
" premises in question to be appropriated to the use of the
'' creditors of Thomas Greeves generally, then judgment to be
'' entered for the plaintiff. But if the court shall be of opinion
" that the premises in question ought to remain as a security in
" the hands of the defendant for the monies due to him by
" Thomas Greeves, and that the le- sors of the plaintiff are not
" entitled to recover and hold the same until the said monies
" are reimbursed to tlie defendant, then judgment to be entered
" for defendant."

It v/as argued in December term ISO-l-, by Dallas and W.
TH^hman for the plaintiff, and by Condij and E. Tilghman for
the defendant.

For tiie plaintiff. A person whose name has been used as the-
^antee in a conveyance, but who has paid no purchase monev,
expended nothing upon the trust, received none of the rents and
profits, a mere name on the paj)ers, lends money upon a distinct
transaction to the real owner who becomes bankrupt, and then
claims a lien on the prf)perty for his debt. This is the defend-
ant's claim, and it is against equity as well as law. We reprc
sent the general creditors who have more equity than the de-
fendant, and we are upheld by the bankrupt law. In Pcnnsijl-
vania such a claim is out of tlic cjuestion, for here the owner of
the trust is the master of the legal estate. He may bring eject-
ment for it in his own name. Kcnnedi/ v. Furtf. (a) His wife is
dowableofit. A judgment against him is a lien upon it, by
uhich it may be taken in execution; and no conveyance of the

in) 1 Va/l. 72:

123 CASES IK THK SUPREME COURT

1805. tnist after jitdl'ttf^nt Avill defeat the creditor. If A. uses B.'s

Fr a /KiT "^'^'-' '-^^ ^^^^ ^^"^ oflice and pays the money, he has the title and

T. may sell the h\nd; it is every day's practice; and it never was

Hallo- heard of that B. could hold the land until a debt due to him by

WELL. ^^ ^,jg paid. In all these particulars we deviate from the law
of Englmid; for there the complete legal estate and the control
over it are in the trustee; so much so that if after judgment
against cestui que trust and before execution sued, the trustee
conveys the lands, they cannot be taken in execution. Hunt v.
Coles et ah (ci) If therefore any English cases favour the de-
fendant, it is upon principles which do not apply here. One
ground upon which they there make the legal estate in a mort-
gagee a security for claims that do not arise out of the mort-
gage, is because when the mortgagor or his heir or assignee
comes to foreclose they apply the principle that he who asks
equity must do it. But here we ask no equity, we are entitled
to this estate at law, our very process is ejectment. Another
ground is that by compelling the plaintiff in the bill to pay other
debts to the defendant, they avoid a circuity of action ; but where
an action will not do the same thing the ground fails. Thus
upon a bill to foreclose, a mortgagee may tack his bond to the
mortgage as against the heir, because when the land is redeem-
ed it becomes assets in the hands of the heir; but it cannot be
done as against third persons. Loxvthion v. Hasel (b). The
court never allows it against creditors. 2 Vez. 162. Anon. An-
other ground is an agreement or presumed agreement that the
legal estate shall stand as a further security. But the present
case states no agreement; on the contrary it states facts which
negative an agreement.

The case being clear of these principles how does it stand
upon authority in the particular case of trusts ? So far as the
silence of the books is an argument, it is with us. For the only
decision apparently against us is in a note in 2 Cha. Ca. 87.
very imperfectly reported; and there the trustee bought the
estate with his own money; and was also the general agent
of cestui que trust. Equity therefore would not give Lord
Dacres the land without paying Crompe all he owed him for
his agency, of which this land was but an item. The language
which is constantly used, that trustees should be saved harm-
Co) 1 Com. R'ip. 226 (i) Broiuyi^s Ca. CAa.162.

OF PENNSYLVANIA. 129

Itess as to all damages relating- to the trusty implies that the in- i805.
demnity shall go no further. Balsh v. Hyham. (a) Frazer

But whatever might be the case between the defendant and ^,
Greevesy the rights of third persons intervened before the notes Hallo-
were paid, and before any intention of resorting to this security well.
was declared. G reeves had then stopped payment, and had he
given a deed of the house to Halloxvcll it would have been
too late; he must have done it in contemplation of an act of
bankruptcy.

For the defendant. The case is to be considered,^rjff, as be-
tween the defendant and Greeves; and secondly^ as between the
defendant and tUe assignees of Greeves.

1. The statement shews that HallowelVs object was to secure
a debt due by Shields to Greeves, and that all the proceedings
were mere machinery. He stands then in the position of a fac-
tor, who collects debts, advances money, and may unquestiona-
bly retain. If instead of money he takes goods, he has a lien on
them. If he takes a bond or mortgage it is the same thing; and
it is still the same if he takes land. It becomes from the pur-
pose with which it is assigned an article of merchandise, subject
to the same disposition, answering the same views, and in equity
is governed by the same principles. Land devised to pay lega-
cies is money; money devised to buy land, is land; it is the pur-
pose which is the material tiling, even in England where real
estate has a peculiar sanctity; a fortiori in Feivi-njhania where
it has become an axiom that lands are chattels for the payment
of debts.

Chancery will never decree a conveyance from the agent to
the principal, until the agent's debt is paid. Bradburne v. Amand
(Ji) is decisive. Lord Dacres employed Crompe to purchase
land for him, and to take up money for it, which he did, and
took the purchase in his own name. Lord Dacres by bill prayed
that Crompc might convey the lands upon payment ot the mo-
ney; but as Crotnpc had uj)on other occasions mortgaged and
engaged for Lord Dacres, the Lord Chancellor decreed that the
latter should pay all or none. The answers to lliis case are not
satisfactory. Its being Crompe^s own money was of no conse-
quence, for Lord Dacres offered to pay that; and as to his being

{a) 2 P Wm^Ai5 ( h)2 Chii- Ca. S7

Vol.. I. H

i;,0 CASES IN THE SUPREME COURT

1805. the general agent, the law no where says how much agency is
Frazer "'-'Ci^ssary to constitute this equity.

•J.. It moreover consisted with Halloivi'lPs authority to sell this

Hai.i.o- land, and if he had sold it he might have set off the debt against

WELL, ^j^^ proceeds. It is therefore against conscience when this was
the true design of the parties, to treat the security as real estate
to prevent a discount, which is natural justice in all cases. 1 Eq.
Abr. 8. pL 6.

But the defendant must succeed upon another ground. To a
bill to redeem a mortgage, the defendant answered that he had
lent the mortgagee two sums on two mortgages, one of which
was deficient in value and was not asked to be redeemed; and
the decree was that both should be redeemed or neither. Pope
V. Onslow (a), Mcrgrave v. Lehooke (J)), lie that asks equity
must do equity. But it is said Greeves was to all intents
the oAvner, that the trustee was a mere name, and that he
does not ask equity. This is not so. The law of Pennsyl-
'vania on the subject of trusts is the same with the law of
England in every case that does not turn upon a question of
remedy. We have no Court of Chancery, and the cestui que
trust must therefore have an ejectment, or he can have nothing;
but he maintains it on his equitable title, and not because he is
master of the legal estate. We deny that a wife is dowable of a
trust; it has never been so determined; the legal estate is never
overlooked unless where if set up it would defeat the beneficial
interest; and the case then is as though Greeves asked a con-
veyance of the legal estate, which he could not have without
doing equity to the trustee. This very point was decided in
CeciPs lessee V. Peters, at l^ork Nisi Prius in 1788, where all the
sums due to the defendant the trustee, were ordered to be paid
before the plaintiff should have a conveyance or recover. To
the same effect is Harwoodv. Wraynam. (c)

N There is yet a third ground. It is a presumption of law that

we lent our money upon the land, knowing that we had hold of
the land by the mortgage and release. It is upon this principle
that if a first mortgagee lends a further sum to the mortgagor
upon a statute or judgment, he shall retain against a mesne
mortgagee until both mortgage and statute are paid. Brace v.
Dutchess of Marlborough, (d^

(a) 2 Vern. 286. (c) 1 i?c///. Reh. r.Q.

{by 2 Ven. 207. (:/) 2 P. Wvu. 494.

OF PENNSYLVANIA. 131

2. The assignees take the bankrupt's estate bound by all the 1805.
equit\^ to which it was liable in the bankrupt's hands. Taylor Yuazek
V. ]V/ieeler (a), Brown v. Jones (Ji)^ Hinton v. Hinton (c). -v.
They have even less equity than an individual assignee without Hallo-
notice. 1 Fonhl. 90. The only question then is whether Greeves "*'^^^'''-
committed or contemplated an act of bankruptcy when the de-
fendant's equity arose; and as to this the case is silent, though it
is manifest that the equity arose when the notes were given. If
the payment of a note is made after an act of bankruptcy, it may
nevertheless be set off against a demand by the assignees, pro-
vided the note was given before. Smith v. Hodson. {cl^

Shippev C. J. was not present at the argument.

Yeates J. I find myself confined to the facts stated as on a
special verdict; and I do not feel myself at liberty to indulge
any conjecture on the occasion. Our decision must be grounded
on the sta4K;mcnt itself; and from this I am only authorized to
state that Mr. Halloxvell was the agent of Greeves in accepting
the mortgage, to secure the original debt, and the release of the
equity of redemption. The latter instrument recites the nomi-
nal consideration of 7s. 6J., and that the mortgaged premises
had been struck off at public auction for 910 dollars. It cannoi
be denied that a mortgage in Pennsi/lvania as well as in Eng-
land is considered as a personal contract, and that the mortgagee
lias no interest in the lands beyond the security of his debt.
Prec. Cha. 99. Stra. 135. 413. Burr. 978. It is true there is a
difference in the mode of recovery in the two countries. Instead
of foreclosing the equity of redemption by a bill in Chancer}',
our act of Assembly directs the remedy by scire facias., and an
immediate sale of the mortgaged premises under a levari facias.
When the mortgage money is paid, tlie mortgagee is obliged to
enter satisfaction in tlie recorder's office of the proper county,
under a defined penaltv. Hence it is that a third mortgagee in
this state buying in a first mortgage shall not have a preference
against the second mortgagee until the sums secured by both
instruments arc paid. But in England it is otherwise under the
operation of the principle in Chancery, that where there is a
legal title and equity on one side, the Chancellor will not permit

[a) 2 Vcrn. 564 ,<•) 2 Vcz. 033-

152 CASES IN THE SUPREME COURT

1805. *^^ prior equity of another person to prevail against such title-

■"T; But we have the authority of Lord Ilanhvicke to declare that if

^, this had happened in any other country it could never have

Hallo- made a question: for if the law and equity are administered by

WELL, the same jurisdiction, the rule qui prior est tempore potior est

jure must hold. 2 Vez. 574f.

Much reasoning has been grounded on this, that the pre-
mises in controversy are to be deemed as under a mortgage
from Shields to the defendant; and inasmuch as it was the ob-
ject of the mortgage to secure a debt of 1207 dollars 50 cents,
the transaction has been compared to those cases where lands
haye been devised to be converted into money ; there equity hath
regarded them as money, and vice versa. 2 Atk. 307. 3 Atk. 254.
And so land agreed to be sold shall go as money, and money
agreed to be laid out in land shall go as land. Salk. 154. If in-
deed from any circumstances disclosed in the case, we are ena-
bled to pronounce that Greeves or his assignees might recur to
Mr. Hallorvell for the original debt due from Shields^ and that
it could still be considered as an existing personal demand, all
difficulties would cease; because it is settled in Smith et al. as-
signees v. TIodsoHy 4 T. JR. 216. that where the defendant lent
his acceptance to the bankrupt on a bill which did not become
due till after the act of bankruptcy, and was then outstanding in
the hands of third persons, yet the defendant having paid the
amount after the commission issued and before the action
brought bv the assignees, is legally entitled to a set-off. But
here, by the conduct of both parties, and by Greeves^s acquies-
cence in the acceptance of the mortgage and release, and his
subsequent receipt of the rents and profits of the premises in
question, up to the time of his bankruptcy, his demand of a per-
sonal nature is converted into an equitable interest in the land,
and neither he nor his assignees could afterwards look to the
defendant for the original debt.

It is obvious also that the equity of redemption being extin-
guished by the release of the assignees of Shields to the defen-
dant and accepted by him for the use of Greeves^ the defeasible
nature of the estate ceased and was wholly absorbed; the strict-
ly legal interest in the premises became vested in Mr. Hallo-
rvell, and the usufructuary interest in Greeves. In Femisylva-
nia where we have no court of Chancery, it must be admitted
that in such trust deeds, the legal estate is almost nominal from

OF PENNSYLVANIA. 133

the necessity of the case. With respect to the power of the 1805.
trustee to prejudice his cestui que trust by ahenation, the sin-~r; "

gle case in which his alienation can bind the cestui que trust x,.
is where being in possession of the estate he conveys it for a Hallo-
valuable consideration and without notice, in which case the ^vell.
purchaser will be entitled to hold the estate against the cestui
que trust. 1 P. Wms. 128. 2 Fonbl, 170. Here a cestui que trust
may support an ejectment in his own name, though it cannot be
done in England unless in some special cases. 1 Dall. 72.

Th- point in question maybe viewed in two lights: consider-
ing Greeves in full credit when the accommodation notes were
taken up, or as a bankrupt. Mr. Halhrvell can only be consi-
dered as a mere trustee whose name has been used. He falls
within the general principle, that an estate purchased in the
name of one with the money of another is a resulting trust,
although there be no written declaration, and is excepted out
of the statute of frauds. 1 Atk. 60. 1 Vern. 367.

If an ejectment had been brought by Greeves^ when solvent,
against the defendant, I should suppose there could be no dif-
ficulty in asserting that the latter could not defend himself in
possession by the offer of proof that the former owed him mo-
ney, which he had lent to him or expended for him in matters
whoWy foreign to the trust estate, and for which the former had
neither given nor engaged to give any security either real or
personal. Are we warranted from the facts stated in adopting
the language of the master of the rolls in Brace v. the Dutch-
ess of Marlboro^ 2 P. Wms. 494. in the case of a first mortgagee
lending a further sum to the mortgagor upon a statute or judg-
ment, " that it is to be presumed'''' that defendant lent his notes
as knowing he had hold of the lands by the mortgage and re-
lease in his possession, and in consequence ventured a sum
which would be a lien thereon? It is settkd that the title of a
trustee shall not be set up in ejectment against the cestui que
trusty from the nature of the two rights the latter is to have the
possession. Burr. 1901. As a matter of abstract equity and
morality it may justly be said that wiiile Greeves was seeking
for the premises as due to him of right, he ought on his part to
pay Mr. Hnlkivell a fair and meritorious debt; but it could
scarcely be urged that in such a suit a court of law who are
bound to distinguish by known rules between real and personal
/•states, should adopt the principle that " he who seeks equity

f34 CASES IN THE SUPREME COURT

1805. " s^^^' ^^ equity," and direct a set-off of the debt, or a retainti

TT' of the possession until the same should be paid. They would

V. necessarily order a recovery in the ejectment against the trus-

Hallo- tee, and leave him to his personal remedy against Grceves for

WELL, j^jg demand.

The case of the lessee of Charles Cecil v. He7iry Korbjnany
C Richard Peters J tried at Tork Nisi Prius on the 12th and
13th June 1788, has been cited and much relied on by defend-
ant. I was of counsel with the defendant in that case, and will
fully state from my notes the pretensions of both parties. It was
an ejectment for 150 acres of land in Codorus township. The
defendant claimed under a conveyance to William Peters from
Ambrose Draper^ the eldest great grandson of John Brothers^
who obtained deeds of lease and release from William Penn
for 250 acres of land to be located any where in Perinsylvania^
dated 2d Aujcfust 1681. The plaintiff claimed under a subse-
quent deed from three others, the great grandchildren of the
original grantee, and the son of one of them who was dead.
Peters released to Joseph Richardson^ who in pursuance there-
of obtained a warrant in 1762 for the 250 acres, on which were
surveyed the 150 acres in question, (inter alia) in 1763. One
Henry Conrad had settled on the lands in controversy in or
about 1748, built a small house and a mill called the Green
Mill, including under one roof a grist mill, oil mill, and slitting
mill, a large barn, cleared land, and made ten or twelve acres
of meadow; and continued in possession for twenty six years.
Mr. Peters contracted, and the warrant was laid on the land dis-
puted, and a patent obtained thereon founded on the old right.
Conrac^ might certainly have maintained his possession under
his valuable improvement and actual settlement, because the
old right could not legally have been l^id thereon, after settle-
ment and appropriation. But he and the vendees under him
were concluded and estopped from setting up an adverse title by
the material recital of particular facts on which they founded
their pretensions. Peters therefore and his vendee held the le-
gal title as to four sixth parts in trust for the other great grand-
children or their vendee j but the well known rule " that he who
seeks equity shall do equity," clearly applied to that case.
Those entitled to their proportions of the old right to unlocated
lands, could have no just claim to the lands located under it,
Unless they paid their proportions of the su-ms advanced in lay-

WELL.

OF PENNSYLVANIA 135

ing it, and securing the different tracts held under it. Hence it 1 805.
was that after the evidence was fully heard a juror was with- p^^^ebT
drawn and a special compromise submitted to. It was finally t>.
referred to the Judges of the Supreme Court to state an account ^allo-
of all expenditures under the old right by William Peters^ and
to charge him with all profits and rents and sums of money re-
ceived, with interest on the several sums, and upon Cecil pay-
ing two thirds of the balance in three months it was agreed that
he should receive a conveyance of two thirds of the premises
and immediate possession. A report was accordingly made on
12th April 1790, that Cecil should pay 1112/. 8.9. Qd. which it
was not the interest of the lessor of the plaintiff to comply with.

The circumstance of the money advanced by Mr. Halloruell
not being for any matter or thing relative to the trust estate,
forms a strong and marked distinction in my idea between the
two cases. Nor can I find any authority on the best search I
have been able to make, wherein trustees have been allowed out
of the trust fund for services or matters done or monies paid,
wholly unconnected with or foreign to the trust.

The case is made stronger when we consider the bankruptcy
of Greeves and the other facts stated. Though the precise time
of Greeves* committing an act of bankruptcy is not specified,
the commission against him issued on the 19th November 1802.
On the 7th August and 2d September preceding, Mr. Hallowell
paid on his account the two accommodation notes amounting
to 1 1 50 dollars ; but it was not till after Greeves stopped pay-
ment, though before issuing the commission, that the former
told him that he would keep the estate in question until he was
reimbursed the cash he had advanced, no agreement having
been previously made that Mr. Halloxuell should hold the pro-
perty until he was repaid. Unless the defendant had a previous
Hen or some valid or bindmg agreement, operating either le-
gally or equitably as such, the policy of the law interdicts a
bankrupt from giving a preference to any of his creditors
on the eve of a bankruptcy. The act of Congress of the 4th
April 1801, in section 12th, exempts mortgages and pledges
from the general operation of its provisions; it contemplates a
system of perfect equality to all the creditors who have not
used the precaution to secure themselves; and it therefore fol
)owF. that even if Greeves after he had stopped payment, had

136 CASES IN THE SUPREME COURT

1805. assented to the declinations of the defendant stated in the case,
"Ti such assent could not leffallv" take effect.

i'R\ZGK

\, Upon the whole, let my feelings as an individual be what

Hallo- they may, I find myself constrained to declare that judgment
^yELL. should be entered for the plaintiff in the suit.

Smith J. In this case my opinion is in favour of the defen-
dant.

I consider the mortgage as if it had never existed, and that
this was a conveyance of the estate on the 20th August 1 800,
the day on which the assignees of jfohn Shields executed the
release of the equity of redemption, to yo/m Halloxvelln, in trust
to secure a debt to Thomas Greeves; or rather a conveyance in
trust for Thomas Greeves. After the legal estate was vested in
Holloxvell in trust, he lent the notes in question to Greeves^ and
ultimately paid them for him.

In England if there is a first mortgagee, and then a second,
and the first lends more money on a third mortgage, he as third
mortgagee shall be preferred to the second, because it shall be
presumed that he lent his money on the security of having the
first mortgage. Is it not equally reasonable to presume in this
case, that the defendant lent his notes to Greeves., which he
afterwards paid, on the security of this estate being conveyed
to him; especially as it is not stated nor contended, that there
was any other consideration inducing the defendant to lend the
notes; nor that he took any counter security from Greeves
when he gave him the notes.

It is worthy of remark, that it is not stated that the defendant
had any authority from Greeves to take the mortgage, (if it
must be mentioned) or the release of the equity of redemption
which, joined to the mortgage, operated as a conveyance. If he
had not, the principal was not obliged to accept such convey-
ance, and by taking it Halloxvcll made himself liable for the
debt. It is not stated that Greeves ever called on the defendant
to release the trust estate to him, to exonerate him from such
liability. It is true that Greeves afterwards received the rents
and profits, it is equally true that the deeds remained in the
possession of the defendant.

That a factor has a lien on all con-'agnments for the general
balance due to him from his principal, is settled law; and I con-
fess I cannot distinguish between a factor, agent, or trii^tee^ as

OF PENNSYLVANIA. 137

to this purpose; each advances his money, each is presumed to 1805.
ad\ance it on the goods pledge or security in his possession. pj^^^ER
A. borrows 200/. on the pawn of jewels; afterwards he bor- ^.
rows of pawnee three other sums, for each of wliich he gives Hallo-
his note without taking notice of the jewels. Pawnor diesj his ^^^^^
executors shall not redeem the jewels without pacing the
money due on the notes; for it is natural to suppose the pawnee
would not have lent those sums, but on the pledge he had in
his hands before. So if the first sum had been secured by
mortgage. Free. Chan. 419. It is a rule that cestui que trust
ought to save trustee harmless as to all dam:igcs relating to the
trust; so within the reason of that rule, where the trustee has
honestly and fairly, without any possibility of being a gainer,
laid down money by which cestui que trust is discharged irom
being liable to the whole money, trustee ought to be repaid.
Balsh V. Hifham. (a) I have ever since the trial of CeciPs
lessee v. Korbmaiiy (Peters) at I'ork Nisi Prius, June 1788,
believed this lien to extend to trustees. There it was contended,
that the inquiry of the referees should be confined to the tract
of land for which the ejectment was Ijrought; but it was ruled
by the court, that the reference should be general, that the refe-
rees should settle how much the trustee (Peters) had expended
about that and all other tracts, as to the two thirds of which
he was trustee, under the purchase from Ambrose Draper; and
that upon the payment of the general balance due on all,
the trustee should convey to Cecil two thirds of the t- act in
question.

Brackenridce J. concurred in opinion with Smith J. and
iiccordingly.

Judgment for Defendant.

» 2 P. mn.i 455.

Voi.. I S

158 CASES Ix^J THE SUPREME COURT

1806.

Satur.fa.. , , • x c I "^ ^-^^i

Man h loth . IM A N N II A R D T CiflllUSt O O D E R S T R O M . l _r.s.5M) ',

imparlance.

A state A CAPIAS Vi^iwnrMc to September term 1805 was issued

ciMirt has no hX ...

jurisdiotioji -*■ ^ against the dclendant, b)- which he was arrested and held
o\ a suit J.Q h:\.\\. A declaration was filed de bene esse on the 8th Novem-

apainst a

consul; and ber; and the bail bond was sued to December term, and judg-

Jl .'^",^'■^5'" mcnt obtained. Special bail was entered on the 14th Februarij

ofjuiisdic- 1806, and on the 20th of the same month the defendant's attor-

tion IS snjT- jjgy j^j^j ^j^^^ following suggestion and plea.

court will " Defendant suggests that he was at and before the time of

quash the u instituting the above action, and since that time has continued

proceedinps. o _ '

Itisnotne- " to be and still is Consul General of his majesty the king of
U shoiild'ir " '^^'^^^"» 'ri the United States^ didy admitted and approved as
b\ plea be- " such by the President of the United States. That being such,
lore general u j^^ outrht not accordinor to the constitution and law of the

imnarlnnrp o o

" United States to have been impleaded in the said Supreme
'' Court, but in the District Court of the United States in and
'' for the district of Femisylvania, or in some other District
" Court of the said United States. And under protestation that
" this court has not jurisdiction, and of right ought not to take
" to itself the cognisance of this case, he pleads non assumpsit
*' and payment, with leave &c." On the 3d March 1 806 a rule was
obtained by the defendant to shew cause why the proceedings
should not be quashed; and upon the return of the rule it was
proved that he had in various instances submitted to suits and
executions from this court.

Frazer and Ingersoll then proceeded to shew cause. They ar-
gued that the application of the defendant was defective in form,
and out of time; and that he should have pleaded regularly and
in proper time to the jurisdiction of the court. There is a v/ide
difference between courts of a general jurisdiction, and courts of
a limited jurisdiction. If the latter discover at any stage of the
proceedings that they have no jurisdiction, they are under the
necessity of arresting the suit; this is particularly the case with
the federal courts. But if the former have a jurisdiction of the
cause of action, the want of jurisdiction arising from a personal
privilege of the defendant can never be averred, but by a regular
pica. The rules which regulate the order of pleading can havr

STROM.

OF PENNSYLVANIA. 139

no operation unless this distinction be sound; and they settle 1806.
the law that if the defendant pleads to the action he admits the jy/r . j^-j^l
jurisdiction, and that if he docs not in proper person and before hard.t
general imparlance plead to the jurisdiction, his time is gone. ^'•
1 Tidd 584. This privilege of being sued in the District Court, ^°^^f/
if it exists, is personrd to the consul; he may waive it or claim,
it, as he pleases; and if his submission to the process and execu-
tion of this court in other cases is not such a waiver as prevents
him from setting it up afterwards, it shews at least that it rests
with him to use it, and should therefore be subject to all those
rules which control the exercise of personal privileges. The
jurisdiction of a court with powers so general, and manifestly
competent to the cause of action, is not to be ousted by
suggestion.

But the authority of tlie District Court in this case is not ex-
clusive. " The judicial power shall c^^c^e/iff to all cases in law
" and equity arising under this constitution, the laws of the
" United States^ and treaties made or to be made under their
" auihoritv; to all cases affecting ambassadors, other public min-
" isters, and C'on;iuL- Jkc." Const. U. S. Art. 3. sec. 2. Do these
words exclude the authority of the state courts ? If they do not,
it follows that tiiis court has a concurrent jurisdiction of the
cause, because it possessed it at the adoption of the constitutionr
Now a delegation of exclusive authority to the union can be
produced only in one of three ways; 1st, by express words; 2d;
by a prohibition of the like authority to the states; 3d, by an in-
compatibility between the authority granted to the union, and a
reservation of it to the states. Here are no express terms, no
prohibition, not the least incom])ati!)ilily. The words are satis-
fied by a concurrent authority. It follows that the jurisdiction
of the state courts remains. But congress have proceeded to
legislate under this article. It is their warrant. They may go to
a less extent than it authorizes, but certainly no further; and
their law is of course to be tested by it, and to stand or fall as
the authority has or has not been closely pursued. In the 9th
section of the act to est.iljlish the judicial courts of the United
Stafesy Congress enact that " the District Courts shall have ju-
" risdiclion exclusively of the courts of the several states, of all
** .suits ag-ainst consuls or vice consuls, except for offences above
• the dcucript'ion aforesaid-^'' 1 U. S. Laxus 54.; that is, except
where a punishment exceeding thirty slrij)es, a fine exceeding

140 CASES IN THE SUPREME COURT

1806. one hundred dollars, or a term of imprisonment exceeding six

]yi^~~~ months, is to be inllicted. The suhji-cts of judicial cognisance

HARDT in this section are causes of admiralty and maritime jurisdiction,

■''• torts, and crimes; and there are no words to embrace causes

^ ' ' whicli arise upon contracts. The reasonable construction there-

STROM. r ■ 1 r ■

fore is, that exclusive jurisdiction is given of suits against con-
suls for offences only; and this is fortified by the deviation from
the usual language of the act, in speaking of suits against con-
suls, and not of suits to which a consul is a party; and by the
exception, which as it relates to criminal matters alone, was
probably used to qualify the grant of criminal jurisdiction. The
Supreme Court of the United States moreover has original juris-
diction of civil controversies which affect consuls, and the Circuit
Courts have cognisance concurrent with the state courts of all
civil suits where an alien is a party. It is in these parts of the
law that we see a forum erected for civil suits in which consuls
are concerned, and they furnish an additional proof that the 9th
section relates in this particular only to offences. A consul is
not entitled to the privileges of a public minister, and there can
be no national policy in giving him at all times the election of a
federal court. We must presume the intention of Congress to
have been constitutional, and construe their laws accordingly?
but if they have manifestly excluded the state courts, they have
exceeded their constitutional power, and so far as concerns the
state courts, their law is void.

•^ Duponceau and Levy in support of the rule, agreed the law
that where a court has general jurisdiction, and a defendant has
privilege to be sued in another court, he must make his applica-
tion in proper time and form; but this was not the personal privi-
lege of the consul. It was the interest of the United States and a
part of their policy, that ambassadors, public ministers, and con-
suls, should be subject to the judicial power of the United States
alone; and the station assigned in the constitution to consuls, who
:fre placed by the side of persons privileged by the law of nations,
is a proof of the consideration in which that character is held:
Indeed under the former treaty with France the consuls of that
government exercised in certain cases a judicial power. This is
a case then in which the defendant docs not claim privilege
personal to himself; it is the privilege of his nation and of the
United States: and if the fact of his official character appears on

HARDT

STROM.

OF PENNSYLVANIA. 141

ihe record, not even his consent can give this court jurisdiction. 1806.
In the cases between this defendant and other plaintiffs, the fact ~.
uid not appear; and this is a sumcient answer to them.

The true construction of the 9th section of the judiciary act v.
is that the District Court has jurisdiction in o//c/t;f/ suits against Soder-
consuls, exclusivelv of the state courts; and the like exclusive
jurisdiction of suits for offences of a certain grade. Of the higher
offences the Circuit Courts have jurisdiction exclusive of the
state courts, and concurrent with the Supreme Court of the
United States; United States v. Ravara; (jci^) of the civil contro-
versies these courts have a jurisdiction concurrent with the
District Court; so that the state courts alone are excluded; and
this reconciles all difficulties. That Congress intended to give
the District Courts exclusive jurisdiction, is therefore evident^
and the remaining question is whether they had a right so to
do. Now the delegation of this exclusive authority by Congress
has been acquiesced in fifteen years, and never judicially ques-
tioned. It flows from the language of the constitution; for if
the judicial power extends to the case of a consul, the United
States have a right to indicate all the qualifications under which
it shall extend. The power to establish an uniform rule of natu-
ralization has always been deemed exclusive. But there is an-
other source of exclusive jurisdiction in the federal courts, in
addition to those mentioned by the plaintiff's counsel; that is,
where the cases upon which the jurisdiction attaches, .^'rcry out
of the constitution. 2 Federalist 245. In such cases there was
no preexisting authority in the states, for the cases did not exist,
and of course that amendment which reserves to the states or
the people the powers not granted by the constitution, has no
application to them. Over tliese there can be no doubt that
Congress may delegate exclusive authority to their courts; and
such are the cases of amijassadors, public ministers, and consuls.
The federal courts having this exclusive jurisdiction, it is
never too late to claim the benefit of the fact before the state
court. If it appears in evidence on the trial of the general
issue, the court will take notice of it. 2 IVoodeson 273. Snells.
^nussatt (/>>), Le Caux \. Eden (c).

(n) 2 Dall. 297 (b) Ct. Ct. U. S- (e) Doug. 57^

142 CASES IN THE SUPREME COUKi

1806. TilghmanC. J. now delivered the opinion of the courtr

Mann- This is an action on the case on a bill of exchange drawn by
HAHDT the defendant, who appeared and pleaded the general issue; at
o ' the same time entering a protest against the court's jurisdiction,
STBOM. verified by his oath, in which he averred that at the time of is-
suing the writ in this cause he was, and still is consul general
of his majesty the king of Sii'eden, in the United States oi Ame-
rica. The defendant's counsel have now brought the point of
jurisdiction before the court, by a motion to quash the writ;
and it is confessed by the counsel for the plaintiff that the de-
fendant's allegation, that he is consul general of the king of Swe-
den^ is true.

Before I proceed to deliver the opinion of the court on the
main question, it will be necessary to take notice of one or two
objections of the plaintiff 's counsel which relate to other
points.

They have placed some reliance on the circumstance of the
defendant's having submitted to suits, judgments, and execu-
tions, in many instances; which they have proved by the records
of this court, and the Common Pleas. In answer to this objec-
tion, it need onlv be observed, that in those cases it did not ap-
pear on the record that the defendant was a consul, and there-
fore the court could take no notice of it.

They have also urged that the defendant is too late in except-
ing to the court's jurisdiction after pleading the general issue;
and cases have been cited on this head from the English books
of practice. In answer to this objection it is sufficient to say,
that by the established practice both in the courts of this state
and of the United States^ the court will put a stop to the proceed-
ings in anv stage on Its being shewn that they have no jurisdic-
tion. In the cast s ol Dnncanson v. Mavlure in this court, and of
SncUx. Faussatt iu the Circuit Cv)urt of the Ur.ited States be-
fore Judge Washington^ a defect of jurisdiction appearing, in
the opinion of the defendant's counsel, on the evidence given on
the trial of the general issue, the point of jurisdiction was urged,
and neither the counsel for the plaintiff, nor the court, suggested
that there was any impropriety in going into the argument.

These previous points l)eing disposed of, I will consider the
merits of the defendant's motion, which will depend upon the
constitution of the United States^ and the " Act to establish the

OF PENNSYLVANIA.

'' jifdicial courts of the United States^'''' passed 24i\i Sefitoiiber
1 789, and commonly called the judiciary act. By the 2d section "
of the 3d article of the constitution, it is declared that "the
"judicial power shall extend to all cases inlaw and equity uris-
•' ing under this constitution, the laws of the United States^ and
" treaties made or Avhich shall be made under their authority;
" to all cases affecting ambassadors, other public ministers, and
" consids, to all cases of admiralty and maritime jurisdiction,
*' to controversies to which the United States shall be party, to
" controversies between two or more states, between a state and
" citizens of another state, between citizens of different states,
" between citizens of the same state claiming lands under grants
" of different states, and between a state or the citizens thereof
" and foreign states, citizens or subjects."

" In all cases affecting ambassadors, other public ministers,,
" and consuls^ and those in which a state shall be party, the Su-
" preme Court shall have original jui-isdiction; in all the other
" cases before mentioned, the Supreme Court shall have appel-
*' late jurisdiction both as to law and fact, with such exceptions
" and under such regulations as the Congress shall make."

It is now sixteen years since the courts of the United Statca
have been organized, and during that time the construction of
the article relating to the judicial power, has been frequently-
considered. Many principles have been established, by which
we are bound. In conformity to those principles we are to un-
derstand, that by the expressions " the judicial power shall e.v-
" tend''"' to the cases enumerated in the section above mentioned,
Congress became invested widi the right of assuming the exclu-
sive jurisdiction for their courts; but in those of the said enu-
merated cases, where the state c(jurts had jurisdiction prior to
the adoption of the constitution, and where the acts of Congress
have not vested an exclusive jurisdiction in their own courts,
the courts of the several states retain a concurrent jurisdiction.
Thus in cases of " admiralty and maritime jurisdiction," the
courts of tl:c United States have always exercised an exclusive
jurisdiction, and in disputes between " citizens of different;
" states" they have exercised a jurisdiction concurrently with
the state courts. And yet in both cases the judicial power of the
courts of the United Slcttcs is founded on the same expression
in the constitution, that is to sav, that the judicial power {«f tlir

145
1806.

Mann-

HARDT

1'.
SoDER-
STROM.

144

CASES IN THE SUPREME COURT

1806.

Mann-

HARDT

SODEU-
STROM.

United States shall extrend ^c. to those two cases among others
that arc enumerated in the same paragraph.

It being then established that Congress had aright to assume
an excUisive jurisdiction " in all cases aflecting consuls," let us
see what provision they have made upon that subject by their
laws.

The 9th section of the judiciary act ascertains the jurisdic-
tion of the District Courts of the United States . (a)

In the first parts of this section, jurisdiction is given to the
District Courts in various matters both of a criminal and a
civil nature, in some of which their jurisdiction is exclusive of
the state courts, and in others concurrent with them. Towards
the latter part of the section the District Courts are vested with
jurisdiction " exclusively of the courts of the several states, of
" all suits against consuls or vice consuls except for offences
" above the description aforesaid." The word suits includes
those both of a civil and criminal nature; and the exception of
" offences above the description aforesaid" refers to a descrip-
tion in the first part of this section, viz. offences where no other
punishment than whipping not exceeding thirty stripes, a fine not
exceeding 100 dollars, or a term of imprisonment not exceeding
six months, is to be inflicted.

It is to be remarked that the jurisdiction of the District
Courts in suits against consuls or vice consuls is exclusive of
the state courts, but not exclusive of the courts of the United
States; because the second section of the third article of the
constitution had provided that " in all cases affecting ambassa-
•' dors, other public ministers, and consuls, the Supreme Court
*■' shall have original jurisdiction." Accordingly it is enacted by
the thirteenth section of the judiciary act, that the Supreme
Court of the United States shall have "original but notexclu-
" sive jurisdiction of all suits in which a consul or vice consul
*' shall be a party."

Then the ninth and thirteenth sections of the judiciary act are
consistent with each other and with the constitution; and in
suits against consuls and vice consuls the jurisdiction of the
state courts is excluded. Nor are we to wonder at this pi'ovi-
sion. One considerable object of our federal constitution was
to vest in the United States the administration of those affairs

(fl) 1 U. S. La-US .53, 5'i.

STROM.

OF PENNSYLVANIA. 145

by which we are related to foreign nations. Consuls, although jgoe.

not entitled to the privilege of ministers, often exercise very im- —

portant functions; and it is remarkable that in the constitution ^j^j^jj^
thev are mentioned in conjunction with " ambassadors and -u.
" other public ministers;" and like them they enjoy the impor- Soder-
tant privilege of commencing suits in the Supreme Court of the
United States. It was wise therefore to protect them from suits
in the state courts, although they are left at liberty to bring ac-
tionsj^g^ipst other persons in those courts, if they find it con-
veniens and choose to do so.

Upon the whole the court are of opinion, that, it appearing on
the record that this suit is against the consul general of the king
of Sweden^ their jurisdiction is taken away by the ninth section
of the judiciary act, and consequently the proceedings against
ihe defendant must be quashed.

Proceedings quashed.

Hoar as^ainst Mulvey.

" Saturday,

Match 15th.
r\U PONCEAU upon a former day obtained a rule upon the-pi^p^j^^jj^y-^

plaintiff, to shew cause whv there should not be a new of a party

trial; and upon the argument, he now offered to the court the„j.j;„„jj j-,,^ ^

same affidavit of the defendant upon which he obtained the 'I'li' to shew
. cause, but it

*''^''^' caiirKJt be

heard upon

S. Levy for the plaintiff opposed it as being contrary to the jp^n^ y,i t,h«
invariable practice of the court. '"'«•

Per Curiam. The affidavit of the party is frequently used
to lay a foundation for a rule to shew cause; but it has uni-
formly been the practice of the court, to refuse hearing it upon
the argument on that rule. He must produce proofs from »
different quarter.

Vo;.. I. i

146 CASKS IN THE SUPREME COURT

lb HO
3b ti2
Hsr233
13s t 121
13s 1 384
lws306
3ws469
7 73

1806.

Sfitiirtiav, Woods (urainst Ingersoll and Dallas.

Mard, 22cl. '^ ^

It is not 'T^HIS actum was brought by the deputy surveyor of Becf-

essential to

'T^HISa
thc'"valklhv J^''^^ couiity, to recover from the defendants the fees due

ot a survey for surveying one hundred, and fifteen tracts of land of four
Tands Ihat ^^""dit^d acres each, at the rate of 9 dollars 53 cents the tract;
the lines of which is the full legnl charge, deducting the fee for plot and
shoultf be r*-*turn, which the plaintiiT, in consequence of the dt^feefrdants'
marked on refusal to pay, had never made. It was proved upon thl'^* trial,
It 1s^9^i"ffi" ^^^^* *^^ plaintiff or his assistant had gone upon the lands and
cieiit if the had laid the warrants, some of M'hich were leading warrants
mariiccnines ^"'^ ^^^ ^^"^^ adjoining, according to the description of township
ciiouc^h to and countv therein; though in some instances the lands neces-
ilie'D.rticii- sarily ran into another township. The survey was made as the
lar tracts; surveys of company lands are usually made, by running the ex-

jiit unless ^gj,jQj. jj^gg Qf t},g whole bodv; but the cross lines of the particu-

iie marks ail ' .

ilie lines, he iar tracts were not run. In fact, the defendants had been gi'ossly

titk"l t*o"th defrauded by a person, who had led them to locate by their
full compen- warrants an immense tract of mountain, on which it was im-
sation given p^ggji^ig (q j-^j^ certain of the division lines; but the plaintiff was
not implicated in this deception. In the ninth section of the
same law which fixes the surveyors' fees, the mode of making
the survey is directed as follows: " Every survey hereafter to
" be returned into the land office of this state, upon any warrant
" which shall be issued after the passing of this act, shall be
" made by actual going upon and measuring of the land, and
" mariinq- the lines to be returned upon such warranty after the
" warrant authorizing such survey shall come to the hands of
" the deputv surveyor, to whom the same shall be directed;
'* and every survey made theretofore, shall be accounted clan-
" destine, and shall be void and of no effect whatever." 2 St.
Laxvs 316. April 8th 1785. The warrants of the defendants
were issued under the act of 3d April 1792, and came within
the provisions of the above section. The cause was tried before
7'eates and Bracienric/g-e Justices, m December 1805. The dedla-
ration contained three counts; the first for work and labour
done and materials furnished at the defendants' request; the
second upon a (quantum meruit; the third upon an insimul com-
putassent; and the jury found a verdict generally for the plain-
tiff, for his whole demand without interest.

OF PE^"NSYLVANIA. 1 47

A motion was made by the defendants for a new trial; which 1806.
now came on to be arcued by Dallas and In^ersoll for the "TTj
defendants, and by Morgan and Raxvle for the plaintiff.

The defendants' counsel objected to the verdict upon two
grounds: First, That the plaintiff was entitled to nothing, be-
cause the survey was not made in conformity with the act of
Assembly, aixi therefore void. Secondly, That at all events, the
whole duty enjoined by that act had not been performed, and
therefore entire fees could not be due.

This survey consisted in marking certain of the external
trees, which could not possibly constitute more than one line oi
a large proportion of the tracts. The object of the law was to
guard against the confusion which results from such a survey,
by requiring each tract to be designated by its own peculiar
limits; whereas in this survey all the interior or central tracts
are without line or corner, and can be traced only from th«
leading warrant. It is such a survey as the law declares to be
of no effect; a patent cannot be obtained upon it; and the sur-
veyor can be entitled to no compensation for services which are
not in conformity with the law.

At all events, the jury have given too much; for the entire
fees are due only for the entire duty. Now w hatevcr may be
the effect of omitting to mark the cross lines of the whole body,
that is, the lines of each tract, most clearly the law directs it;
it is a part of the surve}'or's duty; his fee is regulated with
reference to it; and if he fails to do it, his compensation must
be diminished accordingly.

It was answered by the counsel for the plaintifl, that the law
of 1785 embraced, in the section referred to, two distinct ob-
jects; the one the nioclc of making a survey, and the other tin-
time of making it. With respect to the fust, it is merely direc-
tory to the deputy surveyors, and no penalty is provided for the
neglect of the direction; but with respect to the latter, which
was a source of fraud upon the warrant holder, the law is deci-
sive in the penalty it affixes to disobedience, and declares that
every survey made before the warrant comes to the hands of
the deputy surveyor shall be accounted clandestine and void.
\\"\\\\ this latter clause our case has no connexion. If we have
riot complied with the former, we have still done enough. The.

X'.

Inger-

SOM .

148 CASES IN THE SUPREME COURT

1806. survey was proved to have been made in the usual manner:

"TT. I patents have been invariably granted upon such surveys, and to

■,,. disturb them would be to shake innumerable titles in Pennsyl'

Inger- vania. Sufficient has been done to indicate any one of the one

soLL. hundred and fifteen tracts, both as to quantity and position,

with perfect clearness, and this is the sole use of a survey.

If we are entitled to any thing, we are entitled to the sum
found. Our claim is, in fact, for a (Quantum meruit, of which
the jury are the proper judges; and they have acted with great
liberality to the defendants, in allowing no interest upon a debt
that has been due and unsatisfied for many years.

TiLGHMAN C. J. This is an action brought by the plaintiff
against the defendants for his services as a deputy surveyor in
surveying 115 tracts of 400 acres each. The plaintiff's charge
was 9 dollars 33 cents for each tract, which is the full legal
charge; that is, ten dollars a tract, deducting five shillings, the
fee for the plot and return, because the surveys were not re-
turned by plaintiff. He held back the return until his fees
should be paid him.

The jury found for the plaintiff 1073 dolls. 33 cents, being
the full amount of his claim without interest.

From the report of the judges who sat on the trial of the
cause, I take for granted that the evidence warranted the con-
clusion that although the external lines of the whole body of
land were run, so as to enable the plaintiff to ascertain not only
the whole quantity but also the quantity of each particular tract,
yet the cross lines dividing the several tracts from each other,
were not run.

By the act of Assembly fixing the fees of the deputy survey-
or, it is enacted as follows in the 9th section: " Ever)' survey
" hereafter to be returned into the land office of this state upon
'* any warrant which shall be issued alter the past.ing of this
" act, shall be made by actual ^oing" upon and measuring- of the
" /a7id, and marking the li?ies to br returned on such warrant,
" after the warrant authorizing- .such survey f>hall come to the
*' hands of the deputy surveyor to whom the same shall be di-
" rected; and every survey made theretofore shall be accounted
" clandestine, and shall be void and of no effect whatsoever."
«th April 1785. 2 St. Laws. 316.

OF PENNSYLVANIA. 149

The mode of making the survey is directed in the former 1806.
part of this section, that is, by actual going upon and measuring ~^^~^^
the land and marking the lines; the latter part of the section -d,
goes further, and declares that unless the survey is made after Inger-
the warrant comes to the hands of the deputy surveyor, it shall *oll.
be absolutely void. So that although the directing part of the
section is not strictly complied with, still the survey may be
sufficient to entitle the warrantee to a patent, provided the sur-
veyor has been upon the ground and run lines sufficient to iden-
tify- the tract, and ascertain the quantity contained in it. I men-
tion this, because it has been insinuated, although the point was
not formally made, that perhaps the surveys made by the plain-
tiff were void, inasmuch as all the lines of each tract were not
run and marked. I understand that the construction which I
have put upon the 9lh section of the act of Assembly in ques-
tion, has always been, as it still is, held by all the Judges of this
Court: and it is of consequence that there should be no misun-
derstanding on the point, as the titles of a vast number of per-
sons, who have taken up lands from the commonwealth and
paid for them, would be shaken by a contrary opinion.

But although the surveys made by the plaintiff for the de-
fendants may not be void, yet as he has failed in his duty plain-
ly prescribed by law, he cannot be entitled to the whole of
those fees which are established bylaw, for services which are
but in part performed. Although the defendants may receive
th;ir patents on the return of the surveys, they may be under
the necessity afterwards of running and marking those lines,
which ought to have been run and marked by the plaintiff; and
this will occasion an additional expense. It is true the jury
gave the plaintiff no interest, but that is not a sufficient reason
why there should not be a new trial; because, if the delay of pay-
mf-ni has been occasioned by his demanding more than he was
cutitltd to, he would not be entitled to interest for what might
be nail) due to him.

I am of opinion therefore that the jury did wrong in giving
the pl;iintiff his whole claim. The justice of the case requires a
new trial.

Yeatfs J. I much regret that I cannot concur in the opinion
which has been delivered, and peculiarly so upon the ground
that I am abundantly satisfied our respectable brothers have

150 CASES IN TH1-: SUFREAIK COLRT

1806. f^c^^n grossly defrauded in this speculation b)'^ the person who
Woods *^""'s^^<^-f^ them the locations. If the plaintiflThas not pavticipa
7,. ted therein, the sins of Dr. yamcx Hamilton cannot be visited

Inger- upon him.

•>OLi.. jj ^yjjg proved on the trial that the warrants were put into the

plaintiff's hands to be executed at the instance of the defend-
ants, and that he was urged by one of them to use dispatch on
their land warrants. 3Iat. Taylor swore that he sui-vevcd forty
six of the tracts by actuall}' going on the land and surveying the
tracts as is usual in the case of Company lands, and that there-
were no other lands vacant which suited the description of the
warrants; but he did not answer the question as to running and
marking the intermediate lines. From the posts expressed in the
returns of survey, it might fairly be inferred that many of the
cross lines were not actually run; but in how many instances
this omission obtained, was not ascertained.

The Judges who tried the cause were divided in' opinion,
whether the plaintiff's not running and marking the intermedi-
ate lines of each survey was not a full bar to his recovery of
any money whatever in this suit. I was then of opinion, and
have seen no reason to alter it, that it would be more just to
say that there might be a deduction from the surveyor's bill,
than wholly to defeat his claim to remuneration. The want of
returning the surveys can be no obstacle, because, under the 8th
section of the act of 8th April 1785, the deputy surveyor has a
lien on the survej'^ for the payment of his fees.

The difficulty arises on the 9th section of that act. It is plain
that the surveys declared to be clandestine and void are those
which shall be made before the warrants shall be received by
the deputy surveyor. I concur with the plaintiff's counsel, who
asserted that the preceding parts of the section are merely di-
rectory. A different construction would invalidate many sur-
veys of large bodies of lands, wherein the exterior lines have
been run and marked for companies or an individual, and the
division lines have not been run on the ground. I again refloat
that the decision on this point in Centre county has been much
mistaken. I go further, and assert that surveys of a similar na-
ture have more than once received our sanction upon the cir-
cuit. It is well known that the closing line of a survey is seldom
or never run on the ground, being susceptible of mathematical
calculation.

OF PENNSYLVANIA. 151

It is not my idea that a surveyor is entitled to his full fees 1806.
unless he shall have performed the duties enjoined on him by ^
Jkiw. He should faithfully perform his official duty; and though ,,.
the usage has been for many deputies to run and mark only the Inger-
outside lines of a large tract owned by several persons in part- ^olx.
nership, he is obliged to run and mark the subdivision lines,
when required so to do. If he should find himself under a phy-
sical impossibilitv to do the work, he should represent the same
to the proprietors; the law compels no man to do impossibilities,
and such impossibility certuinl}' exists in the execution of some
of the present surveys.

Hut here I apprehend the jury have made what they deemed
a proper deduction from the sum demanded. The plaintiff's
counsel claimed interest on the full services from the time the
business of the surveys was concluded, making 115 surveys at
3/. lOs. each, (allowing the fees on the return of each survey)
which amounts to 1073 dolls. 33 cents. The returns of survey
were ready in October 1795, which until the 9th December
1805, the time of trial, forms a period of ten years and two
montlis; and the jury by not allowing the plaintiff that interest,
have in fact deducted from him the sum of six hundred dollars
and upwards. From the evidence adduced on the trial he must
be considered as the agent of the defendants, and is now out of
pocket the sums he has advanced for provisions, chain carriers,
&c. In this view of matters my sense of duty compels me to
dissent from the opinion delivered by the majority of the court,
and I trust what I have said will be imputed solely to that im-
pression.

Smith J. gave no opinion, as he was not present at the argu-
ment.

Brackhnridoi-. J. concurred with the Chief Justice thai
there should be a new trial; but said at the same time that h»-
ould form no id{!a of a f/uanhtm meruit for half services.

\ew trial granted-.

152 CASES IN THE SUPREME COURT

1806.

162

lOs

101

(-•1

(!i

(13,

Iv,

6*'

300

212

213

Henry Sparks, junior, who survived Isaac Lloyi*
SaturJa.; oirainst Edwakd Garrigues and Robert Hay-

March 22d

DOCK.

When tlic

condiuonof 'T^HIS was an action of debt brought to September term

» bond is for X j 800, on .1 bond given by the defendants to Lloud and
the paymcnl „ , , . , , t r n^ ■ i i r

of interest oparks', bearing date the 20th ot May 1797, in the penalty ot

annually and 2000 dollars, conditioned to pav 1000 dollars on the 20th of
ofthepnnci- • i . r i • » • / n <- i

pal at a dis- Mai/ 1801, with lawiul interest to be paid annually irom the

tant day, the ^\r^^^,^ The defendants pleaded paument. with leave to give the

interest mav . »^ , , i i r u

be recovered special matter in evidence; and agreeably to a rule oi the court

before the pave the following notice to the plaintiff: '' Please to take no-
principal is ° . ^ "^ • i i • »

due, by an " tice that under the plea or payment m the above action, the

action of tt defendants mean to give in evidence that the bond on which

debt on the . ° .

bond; and if " the action was brought was given on a purchase of a tract of

the defend- u j^^^j-j containing 2299 acres, more or less, lying in the patent
payment and" of Minisini, Ulster county, state of New Tork^ together with
attempts to u another adjoining tract. That the said lands were mortgaged
bond by giv-" by J esse Dickerson to the said Lloyd and Sparks, who agreed
' Hraud "^^ " °^ receiving payment of this and three other bonds given at
want of con-" the same time by the defendants to them on the same account,
&c^bu\*^ails " ^° exonerate the said lands from the said mortgage. That the
and makes " said Lloyd and Sparks or one of them assured the defendants
ludtrment " ''^ *^^ time of giving the said bonds, that the titles to the said
shall be en- " lands were good, but did not shew them the title deeds and
penalty with " P^P^rs, though then in their possession. That the defend-
leave to take" ants besides paying 1000 dollars to the said Dickerson on ac-
^on in the " ^ount of the said purchase, and 1000 dollars the amount of
first instance" one of the said bonds, have expended 1000 dollars and more
rest due at *' '"^ improvements. That it since appears that Jesse Dickerson
ibe com- " had no title to the said land first mentioned, which was the
o/the action. " ^"^7 valuable part of the property so purchased; the other
For the inte- " tract being of very little value, except to the owner of the first
cipafaccru- " mentioned tract." The replication was non solvit.
ingsince.the At the trial the defendants went fully into their defence un-
move the der the notice; they examined witnesses and read depositions
court for as to the matter of title, and to shew that by the defect in Dicker
when the ' ^^^'^'^^ tide there was a failure of consideration. They alleged
defendant fraud and misrepresentation in the plaintiff, and urged them in

any deftnce avoidance of the bond; but did not attempt a set-off of any kind,
other than

that which has been tried, and arising subsequent to the suit. Such a plea of payment
is not under the defalcation Act, but is allowed under the equity powers of the court \x>
jive the defendant an eouitab'e defence.

QF PENNSYLVANIA. 15.

At the time of actipn brought, there was duelipon the bond only 1 806.
a year's in.terest, one year's interest having been paid, and the gp^^i^j^c
payment indorsed on the bond; whereas at the time of trial the 7,..
entire principal was due; but it was agreed that the quantum Garri-
should form no question before the jurj*. A verdict was given f^^'^^s.
generally for the plaintiff, with liberty to the court to enter the
judgment for such sum and in such form as they should think
proper; and this was the subject of two different arguments.

It was argued the first time at December term 1805, in the
absence of Chief Justice Shippen, by Ross and Levy for the
plaintiff, upon their motion to enter j udgment for the penalty, and
to take out execution for the sum due at that time, viz. princi-
pal and interest; and by Hare and Raxvle contra, who contend-
ed that judgment should be entered for the defendants, as the
interest could not be recovered in this kind of action, or at all
events merely for sixty dollars, the yeai-'s interest due at the
commencement of the action.

For the plaintiff. The condition was to pay the interest annu-
ally, and a year's interest was due and unpaid when the action
was brought; the penalty therefore was forfeited, and judgment
should be for that sum. In Gladman v. Henclunan, (a) a mort-
gage was made for 450/. payable at the end of five years, and
interest in the mean time pa)^able half yearly; the mortgage was
held to be forfeited by nonpayment of the interest. The interest
is an instalment; and where any instalment is due and unpaid,
the obligee is entitled to his judgment for the penalty, and to
execution as the payments become due. Darby v. JVilkiiiii (Ji)^
Land v. Harris (r), Boyuifous v. Ribot (^/), Masfen v. Toiichct
(e), is in point. It was dei)t on bond conditioned to pay GOO/,
and interest, in three years from the date, by instalments of 15/.
half yearly, and GI5/. at the end of the term, which was not vet
arrived. On failure of payment of interest, obligee brought his
action; and it was moved to stay proceedings on payment of the
interest due. IJut the court ordered judgment to be entered for
the whole, with only a stay of execution on payment of the in-
terest due. Honul/v. Hanjorth {/)-, Juddx. Evqus (^). If by

Ca) 2 Vrrn. 135. (0 2 IV. Black. "06.

(A) 2 Stra. 957. (/) 2 jr. lUact. 843. S. F

Vol. I. r

CUES.

154 CASES IN THE SUi'REME COURT

1 806. •'1 bond, money is payable by instalnunts,and in such manner that
Spaukb ^^^ nonpayment of a particular sum at a day certain, makes the
r forlciture of the whole bond, and accordingly for the nonpay-

Gauri- ment of such sum there is a verdict for the plaintiff'^ Jind'ing it
to be the deed of the party ^ upon the defendani's bringing into
court all that the master shall hold to be due^ and letting the
verdict stand as a security for future payment, the court will
by rule stay further proceedings on the bond. Webb v. Divile. {a)
This is precisely our case, except that by lapse of time every-
thing is due on the bond, and nothing but the payment of the
whole will stay execution. It is particularly proper that judg-
ment should be for the penalty, and execution for entire princi-
pal and interest, because the trial has been on the merits, the
consideration of the bond discussed, and every objection that
can be urged against it has been urged and decided. The jury
have affirmed the deed. If judgment and execution are to be
confined to the sixty dollars, the defendants may traverse this
bond a second time, and repeat the objections that have already
been answered; or perhaps it may bar any future suit on the
bond.

For the defendants. In the first place the plaintiff is not en-
tided to judgment at all. The principal was certainly not due
at the commencement of the action, that is at the time process
issued, and therefore cannot be noticed in this suit. Lowry v.
Lawrence, (b) Then as to the interest, it is in the nature of da-
mages, and can be recovered as such only; for in Seaman v.
Dee^ (c) it was resolved by the court that " no action of debt
" lies for the interest of money, but it is to be recovered by as-
" sumpsit in damages; and where by deed the party covenants or
*' binds himself to pay the principal with the interest, the interest
" is not to be included with the principal in an action of debt^
" but shall be turned into damages." So in Dixon v. Parkeset ah
where the obligee of a bond received the whole principal after
it was pav'-ible, it was held that he could not recover the interest
m an action on the bond, because as the jury give the interest
in the form of damages, there must be something to support
them. 1 Esp. Rep. 110. Now where the debt is not due, it can-

(a) 1 Bnc. Abr. 669.

(A) iV r. Term Rep. <)9. Cot^p. 454. Dous 61

fc) 1 Vcrar. 198.

Sparks

OF PENNSYLVANIA. 155

aot possibly support the damages; to this efTi ct it is the same as jsOG.
though the debt were paid. The interest is merely an accessory
to the principal. It is true that in Herries v. jfamieson, (a) the
court inclined to the opinion that debt would lie lor interest, be- Garbi
cause indebitatus assumpsit would ; but still this was intended gues.
debt for the interest only, and not debt on the bond before the
principal is due; for in that case there was one count in debt for
the principal, and another count in debt for the interest. If it
were an instalment, the case might be otherwise. There would
then be a distinct condition; and so was the case of Masfen v.
Touchet; the interest was payable as an instalment by name,
and as a part of the debt; but the words " to be paid annuallij'^
do not constitute such a condition, but they leave it by name
mere interest.

But in the second place, the most that judgment can be en-
tered for is the interest that was due at the time of action
brought. In this case the pica is payment; not at common law,
for there nothing but payment at the day was a defeasance; nor
under the statute of 4 Ann. which relates to entire payments /^o^f
dietn; but under the peculiar practice of Pennsylvania^ and our
own defalcation act. It is the settled practice of this state that
on the plea of payment the jury shall find the precise sum due,
Thompson v. Musser; (b) and it is their duty to presume every
thing to have been paid, which ex (vguo et bano^ in equity and
good conscience ought not to be paid. HoUingsrvorth v. Ogle.
(c) It is under this principle that they weigh the whole transac-
tion, and find precisely the amount due. It probably grew out of
the defalcation act, for it Is clearly with'n its equity. But there
is here a payment of one year's interest which is indorsed up-
on the bond; and the case therefore comes within the express
words of the defalcation act of 1705, by which if it appears to
the jur\^ under the plea of payment " that any part of the sum
** demanded be paid, then so much as is found to be paid
'* shall be defalked, and the plaintiff shall have judgment for
the residue onli/, with costs of suit. 1 St. Laws 65. Tiu- objec-
tion that the nuiits have been tried, is not founded in fact. We
could give nothing in evidence that occurred subsequent to the
action; and yet wc certainly nmst have an op|50ilunity to do it,
t»ecause the principal was not due until after the action had been

Ca) 5 D kjf E 55G (A> I iJatl 4'/J 'c) 1 Dall. 26:'.

156 CASES IN THE SUPREME COURT

180ti. commenced. It must therefore he suhjcct to every objection
since that period, or we arc concluded by an incomplete trial.
We will enter an agreement on record that the judgment for

Spahks

T'.

Garki- the interest shall be no bar to a future suit.

CUES.

In reply, it was said, that the case of Herries v. Jamieson
had completely overruled that of Seaman v. Dee from 1 Veyitris.
The opinion attributed to Lord Hale could not be law, or
there would be no means whatever of enforcing the payment of
interest reserved and made payable hij deed before the princi-
pal; for the deed itself would be a complete bar to the assump-
sit. But here the question was not whether interest was debt or
damages, but whether the nonpayment of it agreeably to the
condition of the bond was not a forfeiture which entitles us to
a judgment for the penalty; and no answer on this point has
been given to our cases. The plea of payment in this case, as is
most evident from the notice and the facts at the trial, has
nothing to do with our defalcation act. This act is expressly
confined to cases of persons dealing' together^ and indebted to
each other upon bonds, bills, bargams, promises, accounts, or
the like, where the defendant does not gainsay the deed, upon
which he is sued. In such a case he may plead payment of all,
or part of the sum demanded, and give any bond, bill, receipt,
account, or bargain, in evidence. Now the evidence was used
exclusively to gainsay the deed; and fraud, misrepresentation,
and failure of consideration, were severally objected to it, with-
out any attempt at set-off. The practice of the jury to give the
precise sum due, grows out of, and is confined to, cases under
this act. This plea in truth has arisen from our want of a court
of Chancery, and to let the party in to an equitable defence.
If he fails, the same judgment must be rendered that is con-
stantly given in England^ and in this state, except in cases of
set-off, a judgment for the penalty. That the merits have been
tried is most evident; for every objection, that could go to the
principal, went to the interest; and if the bond was invalid,
nothing was due, contrary to the finding of the jury.

Yeates J. We have been called upon by the counsel on
each side, to mould the finding of the jury agreeably to the
rules of law, and the substantial ju-tice of the case. The defen-
dants' ^ungcl have insisted that jhe verdict should be entered

OF PENNSYLVANIA. 157

for them, contending that the suit in its present structure i\as 1806.
been brought prematurely. They admit that a bond conditioned ~T
to pay money by instahnents, may be prosecuted on one instal- ^,
ment becoming due, though it is otherwise as to a single bill; Garri-
but they urge that the stipulation of the payment of the interest gues-
yearly, is not in its nature an instalment; and further, if it
should even be so considered, that a special declaration in debt
should have been filed, demanding the interest eo nomine. It
cannot be denied that this obligation was intended to secure as
•well the payment of the annual interest, from the 20th Maij
1797, as the 1000 dollars on the 20th May 1801, and it is SD
expressed in the instrument. If therefore the annual interest
could not in correct language be deemed an instalment, it
■would fall under the same principle. The objections to the
form of the suit are founded on the expressions imputed to
Lord Kenijon in 5 T. R. 553. The expi-essionsof Lord Kcmjon
and of Justice Ashhurat^ must necessarily be considered as
generally referrible to the subject matter before them, which
was a simple contract. The expression of Lord Hale in Seaman
V. Dee is strongly doubted, I might say denied. There it was
held that no action of debt lies for the interest of money, but
that it is to be recovered by assumpsit in damages; but the other
two judges held that debt would also lie in such case; and if it
was otherwise, injustice would be done where the payment of
the interest was stipulated by deed. Neither of them however
assert, that this could not be done in a suit brought for the
penalty of the bond, nor that it must be effected by a special
declaration referring i<j the condition of the obligation. The
very point now uader consideration was determined at Nisi.
Prius at Lfincastcr^ between Gra/f and IVlutmorc atid others^ on
a bond worded substantially like the present, wherein I was of
counsel with the plainlifl. I therefore assume the position that
interest may be recovered in the present form of action, and
proceed to consider to what extent that recovery shall be.

It seems a settled principle that the cause of action must be
complete when the suit is instituted, and cannot be made good
by subsequent events. Where, however, on the suiu demanded
interest is fairly running on and due, the jury in their verdict
should find the same from the commencement of the action
until the time of the trial, or if at Nisi Prius to the day in bank;
otherwise injustice would be effected. I do not recollect any

Gl'ES.

158 CASKS IN THE SUPREME COURT

180f). other exception to the general rule. No man can be arrested
~^ ~~here, unless a good ground of action exists when the writ is
■V. taken out; nor can be compelled to defend such a suit. The
Garui- parties arc placed on the same footing, and their relative rights
are graduated on the same scale ; a defendant cannot avail him-
self of a set-off which accrued to him after the commencement
of the action.

In T/iomfiso7i v. Musser^ 1 Dall. 462. it is asserted by coun-
sel, and concurred in by the court, that the constant practice in
all the courts of this state, as well before as since the revolution,
has been to enter the verdict, on the issue of non solvit., for the
sum found to be actually due; but it is otherwise on the plea
of non est factum., and most other general pleas ; the diversity
most probably grew out of the defalcation act. The plaintiff's
counsel have objected that the defalcation act applies only to
mutual dehts^ and that the law in the particular under conside-
ration is confined to three cases: First, where the defendant
has paid or satisfied the debt or sum demanded: Secondly, or
a part thereof: Thirdly, or where the plaintiff has been over-
paid: and that the defence set up here alleges a want of consi-
deration, and that nothing was ever due. It is answered that
our act goes farther than the British statutes of set-off, by
allowing defendant to give any bond, bill, receipt, account,
or bargain in evidence, and that the practice of travelling into
the want of consideration, primarily arose from the defalcation
act, to prevent manifest injustice. It is farther said, that though
no payment is made on such an obligation as the present, it is
within the equity, if not within the express words of the act of
Assembly; but that in all events this case is to be governed by
the act, inasmuch as one year's interest had confessedly been
paid and was indorsed on the bond. In Musser v. Thompson^
the verdict of the jury was for the entire debt and interest in
tobacco, though nothing was paid thereon. The plaintiff's
counsel have contended that the bond becomes forfeited by the
nonpayment of the year's interest, which was due previous to
the commencement of the action, and that the penalty thereby
became the legal debt. They insist that judgment should be
entered therefor, the merits of the bond having been fully tried,
in order to move the court to take out execution for the sum
incurred since the time of bringing the action, or to take out a
3cire facias under the 8 and 9 W. 3. which we have extended

OF PENNSYLVANIA. 159

by our practice. To this it is objected, that our general pra.c- 1806.
tice under the plea of payment is adverse thereto, and that the g
defendants have an unquestionable right to an untrammeled -y,
trial of the whole merits, as any sum or sums of money may Garri-
become due under the obligation. cues.

Independent of any practice which may have obtained on
this head, mv great substantial ground of refusing my consent
to the motion, on the part of the plaintiff, is that the bond would
therebv pass in rem jiidicatam^ and would in fact amount to a
prejudication of matters not put in issue in this action. A judg-
ment concludes a defendant as to all matters of defence which
existed anterior thereto, though as to things which happen
since the commencement of the suit, they may be taken advan-
tage of by pleas puis darre'ni continuance. I would cautiously
guard against everv legal difficulty on this score. If at a future
day when the trial of the plaintiff's demand for the principal
may come on, the defendants may have it in their power to
shew an entire want of consideration for this bond, that the
lands sold belonged to others who had actually recovered
them at law, I think they ought not to be precluded from going
into defence upon such subsequent suit brought either in debt
or covenant.

Moved by these considerations, my opinion is, that to do
equal justice between the parties, the verdict should be entered
up for sixty dollars, the year's interest due and payable at the
time of the impetration of the writ, together witli all the interest
due thereon, from the day of payment up to the time of trial.
I consider myself correct in this particular, as it is a fixed sum
stipulated to be paid on a precise day, and is considered by the
court in the nature of an instalment. For the aggregate thereof,
I think judgment should be entered and not on the penalty of
the l)ond under the pica of payment in this case.

Smith J. Previous to our consultation last evening, I had
seen and attentively considered the opinion delivered, and I
feci difficulties about the manner in wliich the verdict and judg-
jnent ought to be entered in this form of action. On one side,
should the verdict be entered for the interest only, due at the
time the action was brought, the doubt will be whether a new
action can be brought on the same bond, for the interest due
afterwards, or for the principal; whether such verdict and

loO CASES IN THE SUPREME COURT

180G. judgment avUI not be a bar to a future action. The defendants'
"T; counsel have aproed to obviate this difficultv by making a

Si' ARKS "

^ Special entry on the record that it shall not be a bar. In fact

Gakri- one years interest only was due at the time the action was
ovFs. brought; whether that was paid or not, was the only fact really
m issue on trial, although the merits of the whole were tried,
without due consideration I apprehend.

It seems to me that the result would be exactly the same,
whether the verdict be entered for the penalty, or for the in-
terest due at the time the action was brought, with interest from
the time at which it ought to have been paid, except as to the
costs, if the interest be under 50/. For if the defendants would
be let into a defence in a new action, if judgment be given for
only the interest due, they would be equally entitled to such
defence on a scire facias for the instalments due afterwards; or
♦.^ven before leave would be given to take out execution for such
instalments, they would on proper cause shewn be entitled to
have it tried on an issue directed by the court, whether any
defence had arisen which they could not have given in evidence
on the issue which has been tried. That the defendants might
make such defence is clear to me on the principles of the defal-
cation act, and our practice of giving fraud, mistake, or want of
consideration in evidence; because suppose after the recovery
or payment of the interest, and belore the principal became
due, or before action could be brought for it, the lands for
which the bond was given were bona fde recovered against the
obligor, (he having given due notice to the obligee to defend
the title to the land for which the bond was given) by due
course of law; it would be contrary to natural justice, that the
obligor should be compelled to pay such bond, and the defalca-
tion act and our practice in such cases are founded on the prin-
ciples of natural justice. Supposing the obligor should be let
jnto a defence, to the extent I have stated, to each instalment
as it becomes due, it would be no more inconvenient than if a
separate bond had been taken for such instalment, in which
f'ase it is clear that the defendant or obligor may make such de-
fence to each bond.

Whether judgment be entered for the penalty, or for the in-
terest only, the form of entering it must be different from any
in the books of entries. I therefore suggest to the counsel on
each side to draw up a form in vrhich they think judgment

GUES.

OF PENNSYLVANIA. 161

ought to be entered, to enable us better to enter it agreeably to ISOO.
our law and practice, in a manner besc calculated to do equar~7."

... ^ bPARKS

justice between the parties, and to become a rule in such cases
hereafter. Difficulties on each side occur to me; and if my Gakri-
brothers should be divided in opinion, as I believe they will, I
will take time to advise.

Brackenridge J. By the defalcation act " If any two or
'•• more dealing together be indebted to each other upon bonds,
•' bills, bargains, promises, accounts, or the like, and one of them
''• commences an action, if the defendant cannot gainsaLf the
•' deed &c. it shall be lawful for such defendant to plead pav-
'' ment &c. Sec." This act therefore does not apply to cases
where he gainaaijs the deed by pleading n07i est factum^ or where
admitting the execution he pleads duress, or under the plea of
payment gives fraud, mistake, or want of consideration, in evi-
dence, in avoidance of the deed. The penal sum is less than nomi-
nal in the case of a set-off under this act; that is, it is not even
noticed in the judgment entered, nor is it necessarv; for the
reducing of the sum in demand by a set-off does not affect the
costs. The act renders it clear of this difficulty.

In the case before us, it would certainly be most simple and
reasonable to sustain an action of assumpsit for the interest, as
for an instalment becoming due; but it would affect the costs,
when the sum is within the cognisance of an inferior jurisdic-
tion; and it would introduce another inconvenience; the plea to
the execution, or the pleas in avoidance, might be brought into
view and made triable totica quoties on every instalment of
the obligation, unless it could be saved by an averment as an
issue already determined. But this would give delay, anil in-
crease suits. Again: an action of covenant must be on the whole
of the obligation, and yet the judgment for the particular sum
recovered. Would not this be in bar of another action on the
bondr But can we not reach the justice of the case by a judg-
ment for the pcnaltij^ with leave to take out execution for tht-
sum due at the time of bringing the action, and also for the sum
liecoming due up to the time of taking out execution, or what
may become due subsequent to the taking out the execution in
'he first instance.

It is not under the def.ilcation act, ')ul under the exercise ol
(Chancery powers that we relieve from the penaltv; and thouglt
Vor. I, \

162 - CASES IN THE SUPKEME COURT

1806. nominally wc pursue lor that sum, yet the sum really due is the
"T ~ . del)t. But he that will have equity must do equity; and on thi»
X.. principle it was early in practice to suffer the penalty of" an obli-

Garki- gation to cover a simple contract debt. If" so, why not cover a

^^ ^'^' sum that has become due in the intermediate time, and that de-
pends on the same writing. If any thing has arisen which goes to
a sum becoming due since the action brought, or plea pleaded, or
judgment entered, this matter on motion may be shewn to the
court; and if of such a nature as to require it, an issue may be
directed to try the fact, and in the mean time the penalty sus-
pended, and execution staid as to the sum in conti"oversy. Or
let judgment be entered for the penalty, subject to a defence to
any instalments becoming due since the action brought, pro-
vided that defence be on a ground arising since bringing the
action.

It may be seen therefore, that I consider the defalcation act
as having no application to the case before us; nor do I consider
our rule of letting in a defence to the consideration &c. of the
bond under the plea of payment, as making any difference, save
as to the way of getting at the truth in a court of law. I substi-
tute motion and leave to take out execution, and the framing an
issue if necessary, in lieu of the scire facias. But let the thing
take the course of the English practice if you so choose it, and
let a scire facias issue toties quoties on the instalments; under
the plea of payment nothing but payment could be proved;
for it would not come within the meaning of the rule of plead-
ing, to travel into the consideration of the bond, as that issue is
alread}' tried. I again say that it is under the written rule of the
court, and which rule is from the Chancery power of the court,
that payment here is pleaded; it is no set-off, nor has it any thing
to do with that act.

There being a difference of opinion in the court, a second
argument was directed upon the appointment of the present
Chief Justice; and it accordingly took place atMarch term 1806,
by Levy for the plaintiff, and by Hare and Rawle for the defend-
ants, upon the same points which had been already urged; except
that it was now conceded that there must be judgment of some
kind for the plaintiff; and this day the judges delivered their
opinions.

Sparks

OF PENNSYLVANIA. 163

TiLGHMAN C. J. This is an action of debt on a bond in the jgOG.
4^5enalty of 2000 dolls, dated 20th 3Iai/ 1797, and conditioned
for payment of 1000 dolls. 20th May 1801, with lawful interest
to be paid annually from the date. At the time of the com- Gakri-
mencement of the action, one years interest, amounting to sixty gves.
dollars, was due and unpaid. The plaintiff declared for the pe-
nalty of the bond in the usual form, to which the defendants
pleaded payment, with leave to give the special matter in evi-
dence. The defendants, agreeably to the practice and rule of this
court, gave notice to the plaintiff that under the plea of payment
they meant to give in evidence sundry matters, which I shall
not particularly mention, but which if established were of such
a nature as to avoid the bond. The general replication was made
to the plea of payment, and issue joined. The jury found for
the plaintiff; and by the consent of the parties it is now submit-
ted to the court in what manner judgment shall be entered, that
is to say whether for sixty dollars the amount of the interest
due, or for the penalty of the bond.

It is a point of considerable importance; for if the judgment is
entered only for the sixty dollars, the plaintilfmust bring another
action for the interest accrued since this action was brought,
and forthe principal;and the defendant will again put in the same
plea, which has been already tried and determined against him.

The nonpayment of interest annually was a forfeiture of the
bond. It should seem therefore that the issue being found for
the plaintiff, the judgment according to the general principles of
the law should l^e entered for the penalty of the bond. It is not
denied by the defendants' counsel but that this is according to
the practice in the cfjurts of common law in EiiglunJ. But they
have made several oi)jections founded on the law and practice
of Pennsi/hania, and particularly on an act of Assembly passed
in 1705, commonly called the defalcation act, which directs that
in certain cases judgment shall be entered, not lor the pefia/tt/
of the bond, but for the sum which by the jury shall be found
to be due thereon. 'J'liis is the only difficulty in the case; buf
it appears to me to be rather an apparent tiian a real difll-
culty; for it is founded on a supposition that the plea of pay-
ment with leave to give evidence of an equitable defence in bar
of the action, is derived from the defalcation art. But that is
not the case. The defalcation act provides that where there have
been mutunl dealings between plainlin'and defendant, if defend-
ant cannot q-ainsai/ the claim of the plaintiff' -.vhcreon he is iued,

CUES.

164 CASKS IN Till-: SUPKKMK COL'UT

1806. l^t-" niav pUad payment of all or any part of the debt or sum de-
SpAKKs "■'•'^"'^'^■d, and give any bond, bill, receipt, account, or bargain, in*

7' evidence. If it shall appear that he hw?, fully satisfied the claim

Cjauiu- of plaintiff, judginent shall be given for him; if only /7«r^ has
been satisfied, the plaintiff shall have judgment for the residue;
if the plaintiff has been overpaid^ the jury shall give a verdict
for the defendant, and certify in how much the plaintiff is in-
debted to the defendant, which may be recovered by the defend-
ant in a .scire facias against the plaintiff. Now the words as well
as the spirit of this act extend only to cases of set-off where the
defendant acknowledges the deed,bargain, or account, on which
the claim of the plaintiff is founded, but opposes it by payments
or by another claim of his own. But the case before the court
is widely different; for the defendants set up a defence, not con-
sisting of payments or set-off, but which goes to the total destruc-
tion of the plaintiff's cause of action. On what then is this kind
of pita founded? It has arisen from the particular situation of
Fe?insi/lvaniay in Avhich there is no court of equity, and there-
fore the courts of common law jurisdiction have very properly-
adopted a mode of practice by which defendants are permitted
to avail themselves of an equitable defence. But it never was
intended that an equitable defence, which goes in bar of the
plaintiff's whole cause of action, should be tried 7yiore than once.
This would be going beyond the relief granted by courts of equi-
ty; and no case has been cited to shew that more than one trial
has been had under similar circumstances in this state. It has
been shewn indeed, that where the special matter has been given
in evidence under a plea of payment, judgment has been enter-
ed for the sum found by the jury to be due. But in all the cases
cited, the whole dispute has been finally settled, and the sum
found due on the bond was the whole that the plaintiff could
ever be entitled to. The plaintiff therefore would have no ob-
jection to entering judgment for that sum. But in cases like the
present, if judgment is entered only for the sum due at the time
tht- suit was commenced, the plaintiff will be driven to a new
action for every future year's interest, and the parties involved
in a scene of endless litigation.

It has been also objected, that by an entry of judgment for the
penalty, the defendants will be debarred froui the benefit of a de-
fence founded on circuinstances arising after the commence-
mt)u fiftl e action. But that is not the case. The plaintiff in the
first instance is only allowed to take out execution tor the sum

OF PENNSYLVANIA. j^,5

due when the action was commenced; he must move the court j gQg^
♦for future executions; and then if it is made to appear that the ^ , ~
defendant has a defence, other than that xvhich has been tried, ^,.
and arising .subsequent to the suit, the court have it in their Garmi-
power to see that justice shall be done. ciEs.

It is extremely convenient, and prevents a multiplicity of suits,
to enter judgment for the penalty of bonds, and to give permis-
sion to the plaintiff' to take out execution for the different sums
as thev become due, according to the condition. I can see no ob-
iect in entering judgment only for the interest due at the time
of the action brought, but to let the defendants into a second
yial of what has been already determined: an object subversire
of a very valuable principle of law, and tending to the increase
of expense and litigation. Expedit reijmblicce ut sitjinis litium.
I am of opinion that judgment be entered for the penalty of
the bond, with liberty for the plaintiff" in the first instance to
take out execution for sixty dollars.

Yeates J. said he was under the necessity of adhering to the
opinion which he had before delivered; that is, that judgment
should be entered for the sixty dollars, with interest thereupon
from the time of issuing the writ, but without costs, as the sun\
did not amount to fifty pounds; and that he could not think that
the admission of the execution of an obligation by the obligor,
and shewing at the trial that it would be the height of injustice
to exact the payment thereof under all the circumstances of the
case, could be denominated j^-ainsaijin^ the deed. It was no
more in his idea, than if he could prove that the full contents of
the bond had been discharged in current money.

Smith J. and Brackknridgi; J. agreed in opinion with the
Chief Justice, and said that the defendants ought to have liber-
ty to make defence on future instalments, provided such de-
fence arose since the commencement of this action, and was not
the same that had been tried.

Judgment for the Penaltv, with leave to
take out execution for sixty dollars.

At a subsequent day the question w;i.s argued before the
€f)urt, whelhc r the plaintiff" was entitled to charge interest on
till- annual interest of the bond, which was decided in the nc-
j^tivc.

G(") CASKS IN THE SUPREME CUUR'f , ib lee

4y 576
lb 233

1806. i«i!'»

____ ____. 6w431

„. 5w569

Pltts:!ur^', 22 360

•S"a"" '/">•. Lessee of Hazard as[aiust Lowrv-

Scptember "

THIS was an ejectmtnt for land lying north and west ol the
. , . ,, rivt-rs C/i/o and v4//fp//<v?vantl ^'i'^i(*7''^'"^<5 creek. The war-

Ill tlie ninlli .

section of rant to the lessor of the plaintiffbore date the 13thof ^/;n7l792,

'id A^'-l ^"'^' called tor 400 acres " adjoining land this day granted to Walter

1792, which " Stervart.^^ At the time the warrant was taken out, and until

^eulcmeni ^^*-' ^i"^^*}' ^f General VVayne^ which was made at Meadville on

in r iisc of the 3d of August 1 795, and ratified on 23d of December t'ollow-

pre\ention .^ there was an Indian war on the frontiers of Pennsiilvania;
Dj 1.10 eiic- o' •'

m}, also ex- and the frequent irruptions of the enemy into the quarter of the.
Tcv^ Two" country to which the warrant applied, have been repeatedly
yeais after recognised hv the courts of this state as excusing during that
ti(in bv^Gene- P^""'^^ the settlement required by the act of 3cl April 1792; in-
ral Wayne's deed until the spring of 1 796 there was hardly an instance of
reasonable ^"Y person, except a few intrepid and perhaps rash adventurers,
time fur ^y^o attempted to make a footing in that country. On the 17th
settlement J^me 1794, more than two years after the date of the warrant,
which has ^ survey was made upon it by Recse^ the deputy surveyor of

hem preven- .... ,. ,'..., ,, "i- •

ted by the the district, according to thu description m the warrant '' adjom-
enemy. " ing Walter Stexvart-^^ but no entry was made at that time by
the lessor of the plaintiff, or by any one under him, with a view
to settlement. The defendant entered on the land in July 1795;
and the plaintiff brought his ejectment to Sep'emberttrm 1797,
more than a year and a day after Gen. Wai/7ie^s treaty, but less
than two yeais. The demise was laid as of the 1st October 1796.
The whole case turned upon the construction of the 9th sec-
tion of the act of the 3d April 1792, which is in the following
terms. " No warrant or survey to be issued or made inpursu-
" ance of this act for lands lying north and west of the rivers 0/»"^
" and Allegheny and Conewungo creek, shall vest any title in or
" to the lands therein mentioned, unless the grantee has prior
" to the date of such warrant made or caused to he made, or
" shall -within the space of two yearn next after the date of the
" .same make or cause to be made an actual settlement thereon,
" by clearing, fencing and cultivating at least two acres for
*' every hundred acres contained in one survey, erecting thereon
" a messuage for ih:.- habitation of man, ;md n siding or causing
" a family to reside thereon for the space of five years next fol-

OF PENNSYLVANIA. 16";

*• lowing his first settling the same, if he or she shall so long 1806.
'•'• live; and in default of such actual settlement and residence, it " Lessee
" shall and may be lawful to and for this Commonwealth to of
" issue new warrants to ather actual settlers for the said lands Hazard
*•' or any part thereof, reciting the original warrants, and that . ^''
*' actual settlements and residence have not been made in pur-
" suance thereof; and so as often as defaults shall be made, for
" the time and in the manner aforesaid; which new grants shall
" be under and subject to all and every the regulations contain-
" ed in this act. Provided^ that if any such actual settler, or any
" grantee in any such original or succeeding warrant, shall by
" lorce of arms of the enemies of the United States be prevented
" from making such actual settlement, or be driven therefrom,
*' and shall persist in his endeavours to make such actual settle-
" ment as aforesaid, then in either case, he and his heirs shall
*•' be entitled to have and to hold the said lands, in the same
" manner as if the actual settlement had been made and
-*' continued."

At the trial of the cause in November 1802 in the Circuit
Court of Allegheny county, a verdict was taken for the plaintiff,
suljject to the opinion of the court upon three points reserved;
and which were now the ground of appeal, as the decision of the
court below was in favour of the plaintiff upon all of them. I.
Whether, as no survey was made upon the plaintiff's warrant
within two years next after the date, any survey thereon made
afterwards could vest a title in the warrantee. 2. Whether any
title vests in a warrantee under the act of 3d April 1792, un-
less he has made an actual settlement before the date of the
warrant, or within two years next afterwards. 3. Whether,
supposing the plaintiff to have been prevented during the two
years after the date of his warrant from makingan r.clual settle-,
ment, he had proceeded to make it within a reasonable time
after the prevention ceased.

A. W. Foster for the defendant contended on ihej/rst point,
that as the warrant in this case was not of a nature to ascertain
the lanfl without a survey, and as the ninth section of the act of
3d April 1 792 required, in order to vest a title, that within two
years from the date of the warrant certain arts should In- per-
iormcd upon or with reference to a specific ascertained tract
of land, it followed that there never had been even an inccp-

168 CASKS IX THK SUPHEMi: COURT

1806. tioi^ of title in the pkiintifl". The w;irrantee did not know

r^"""" within tlic two years where his land was; he of course had it

of not in his power to enter or to take any step with refercrice to

Hazaud it. In fact he did not lay claim to any land until the time had

r ' ' expired. A special warrant, which describes the land, attaches

LOWUY. .',.'.. , • , , , ,

Irom the tune it is entered with the deputy surveyor; but a
general warrant like this, if it is of any avail under the act of
1792 which in its ///i/v/ section demands a particular description
of the lands in every a]}plication, attaches only from the time
' of survey, unless a special entry descriptive of the land is made
at the time of delivery to the surveyor. Whatever may have
been the situation of the country, the plaintiff must make out his
title according to the ;///i^/i section. The provho at most dis-
penses with actual settlement only in the event oi -a prevent/on
by the enemies of the United States; but the plaintiff never had
a survey which fixed a particular body of land whereon he had
a right to enter and settle; and it is therefore absurd to say that
he W2i^ prevented hyxht. enemy from settling, or that there ever
was a tract of land which he could persist in his endeavours to
settle. A survey is a condition precedent to the operation of
the proviso; for until that is made, there is no object for settle-
ment, prevention, and persistence.

The defendant entered then, after the plaintiff forfeited his
right. He became an actual settler, as he might well be without
a vacating warrant; for the 9th section is explicit, that in case
of forfeiture new warrants shall issue to other actual settlers^
which implies a settlement before the new warrant is issued; and
having entered upon a right adverse to the plaintiff, his settle-
ment cannot enure to the plaintiff's use.

'I'he .st'conr/ point was not pressed.

On the third point it was contended that the decision of the
Supreme Court of the United States in Heidekoper''s Lessee
V. Douglass (a) was not binding upon the courts of this state, as
it was not pronounced in a cause exclusivelif of Federal juris-
diction; the point was therefore to be settled bj- the decisions in
Pennsylvania^ which established the necessity of an actual set-
tlement after the prevention had ceased. The question in the
present instance was as to the time. All apprehension' of danger
ceas'.d at least as early as the ratification of Cieneral Wat/ne^s
treaty in December 1795, and more than a vearand a half elap-

(.7) 4 Dait. o9':.

OF PENNSYLVANIA. 169

sed before the plaintiff made an attempt to proceed under his J 806.
survey. The common law has limited a year and a day to be a Lessee^
legal and convenient time for a great variety of purposes, espe- of
ciallv in the case of continual claim, to which this renewal of Hazard
settlement is in many respects analogous. Co. Lift. 254. b. sec. , ^''
422,— .3. Rmin. on Eject. 143.; and as a general rule to which
this and all other cases must bend, it would manifestly interfere
with the main design of the legislature to settle this frontier
country, if a longer time were allowed. The actual settler is en-
titled to a credit for every day he has resided on the tract, ,
against the five years' residence required by the law; and as in
many cases an actual settlement was commenced before preven-
tion, he should be allowed as a general rule only a medium of
the whole time for completing his actual settlement after the
prevention was at an eiad.

Ross for the plaintiff. The first point states nothing in rela-
tion to the entry of the warrant with the deputy surveyor; but
submits the naked question, whether the survey, not having
been made within two years, vested any title in the plaintiff; or in
other words, inasmuch -dslhit proviso dispenses completely with
settlement where it is prevented by the enemy, whether it does
not also for the same cause dispense with the survey. The ques-
tion answers itself. The warrantee is excused from entering to
settle, because it would be monstrous to insist upon it at the haz-
ard of his life; and can it be argued that although the danger
was precisely the same, there should nevertheless be an entry
to survey? Besides, the plaintiff could not compel a survey. It
could be made only by the public officer; and both the courts of
this state and of the union have held that lie is excusable in re-
fusing to survey Jlai^rante hello. The argument therefore pro-
ceeds upon a double injustice to the warrantee, by making him
suffer for not causing that to be done whicli the spirit of the
proviso excuses, and then by imputing to him the omission of
a public officer whom the law in this very particular justifies.
Th{' endeavour of the plaintiff is, however, very obvious from
the survey having been made in June 1794, during the period
uf hostility; and as the defendant entered in iryr), the kind of
warrant taken by the plaintiff is legalized from tlie time of sur-
vey, by the act of 22fl April 1 794. 3 St. Laws 581.

Vol. I. Y

170 CASES IN THE SUPREME COURT

180G. T'^^ second point has been settled by this court at Sunburij.

It cannot indeed be seriously urged that an actual settlement

of niu-.^t lie made within the two years, without rejecting almost

Hazaud the onlv plain meaning which the proviso affords. The acts of

'''• Assembly for raising troops, prove incontestibly a prevention

by the enemy; and nothing more is necessary^ to postpone the

effect of the whole enacting clause, even from the moment the

warrant issues.

On the third point there are two positions for the plaintifl',
one as it respects the defendant, the other the Commonwealth.
As it respects the defendant,he was a wrongdoer; hecntered be-
fore the treaty, while most clearly the plaintiff's right was in
force; and he shall never be permitted to object to our claim, a
defect of which, if it exists, he himself was the cause. As it re-
spects the commonwealth, even the common law rule is suffi-
cient; for our demise is laid on the 1st October 179&; not a year
after the ratification of the treaty, which is the point of time at
which a settlement might have been commenced with safety.
Merri'>*s Lessee v. Neighman. (a) But the rule which has been
adopted at Sunbury, and which is the only rational rule that can
be adopted upon the subject is this, that as the 9th section al-
lows two years for clearing, fencing, building &c. and as the
enemy prevented all settlement until the ratification of the
treaty, two years ufter that date is a reasonable time for per-
forming the same duty.

TiLGHMAN, C. J. delivered the opinion of the court. This
cause comes before the Court upon an appeal from the Circuit
Court of Allegheny county. The ejectment was brought to Sep-
tember 1797, and tried November 1803, when a verdict was
taken for the plaintiff, by agreement, subject to the opinion of
the Court upon the points to be reserved. These points arc spe-
cified i'l the record, and are now the subject of our considv;ra-
tion. The counsel for the defendant has argued the cause on
very extensive grounds, and raised manv points not necessary
to be determined in deciding the questions before us. The
weight of business resting upon this court, will make us cau-
tious how we express our opinions on matters foreign from the

(fl) i Dall. 209

OF PENNSYLVANIA. 171

tase before us. I shall therefore confine myself to the reserved 1806.
points stated on the record, without intimating any opinion on j gcsee
any otht;r question. of

The first and second points may be considered under one Hazard
yiew. Thev, as well as the third point, arise out of the act of 3d _ ^'
April 1792, and prmcipally out ot the 9th section otthat act.

Although this section is expressed with such obscurity as to
have occasioned great diversity of opinion among men of the
first abilities, yet there are some points concerning which there
can belittle doubt. One of these points is, that if the setdement
required by law is prevented by force of arms of the enemies of
the United States, the interest of the grantee does not revert to
the commonwealth, although the settlement is not made within
two years from the date of the warrant. Now in the case before
us, the warrant bears date the 13th April 1792, and it is noto-
rious, and not denied by the defendant, that for more than two
years from that time there was open war with the Indians,
which rendered it dangerous to attempt a settlement of the land
in dispute. It may be safely affirmed, from the public acts of the
commonwealth in granting money and raising troops for the
protection of the countrv, that this state of danger existed until
the pacification by Gtrneral Wayne'' s treatv with the Indians. If
the danger arising from this war excused the warrantee from
making a settlement, so did it likewise excuse the deputy sur •
vcyor from surveying the land. The counsel for the defendant
contends, that inasmuch as the warrant does not describe the
land except as " adjoining a tract granted to Walter Stewart^^
which had not been surveyed, the warrantee could not know
where it lay until it was surveyed, and of consequence he could
not be prevented from settling what he had no right to enter on.
Hut this argument has more of rclimmcnt than of solidity.
When the warrantee paid his money and took out his warrant,
his title commenced; he ol)tained a right to reduce the laud to
a certainty by survey, and he shall not be deprived of that right
by the event of war. There is nothing in the act which autho-
rizes such a position. On the contrary, the proviso in the 9di
section which excuses the settlement, does virtually excuse the
survey.

The third point for our decision supposes that the warrantee

was prevrnt.d by the enemv from makiriK a sctth-m- n: f)r two

ears from thr date of the warrant; but the defendant contends

172 PASES IN THE SUPREME COURT

1806. that a settlement was not made within a reasonable time alter
Lessee ^^^ prevention ceased. It was decided by my three brethren at
of the special Court at Sunbunj^ (a) when I had not the honom-
tlAZAHD Qf jj gpjjj Qj^ ^Y[\s bench, that a reasonable time for such set-
LowRT element should be allowed; and to that opinion I subscribe.
The question then is, what is that reasonable time? The law has
not fixed it. But as two years are allowed for building, clearing,
and fencing, in case the country had been in a state of peace, it
seetns most consonant to the spirit of the law that where war
existed from the date of the warrant for two succeeding years,
not less than two years should be allowed from the pacification
by the treaty by which the war was concluded. I understand
this to have been the opinion of the Judges of this court, and I
see nothing which should induce us to depart from it. The de-
fendant then, having entered during the time that the lessor of
the plaintiff had a right to hold the land for the purpose of
making a settlement, was a wrong doer, and subject to be re-
moved either by an entry or by ejectment. It follows that the
plaintifTwas entitled to judgment in the Circuit Court, and that

judgment must now be affirmed.

Judgment affirmed.

(a) 4 null. 237. ^ r\

I 10s ,225
' ,"'^306/

Ft tuburg, Griffith ai>'a bist Ogle and K i m m e l l . .' /

Saturday, o '

September

J?^^' 1- .. nnHIS was an appeal from the Circuit Court of Somerset
It a verdict I ^ *

be found for -■- county.

( tio' ^s ^* ^^^^ ^" action on the case in nature of a writ of conspiracy.
inadc in ar- The first count in the declaration charged that the plaintiff being

ment"durim'-^"*^^^°'^'''^^^" j"^^'^'^ of the Common Pleas o'i Somerset cowDty^th^
ihc penden- defendants conspi»"ed falsely to charge him with the offence of
ihe^plaintifl' t^^i"S illegal fees, and to cause him to be removed from office;
dics,;iidj;- and in pursuance of their malicious conspiracy didfolselij and
etuL eda'sof maliciously accuse and charge him with taking illegal fees. The

a 'e.m after
the \erdict

when he was alivo. It seeins that in an action on the case in the nature of a writ of con-
spiracy, it is iiot necessary to declare that the conspii-acy was witbuiit probable cause.
" Fr.lisel-; ar.d maiicicuti}'" is ejiougl). At all e>cnts it is gnou after \erdicl. 'L'hf law iin-
plics Ja "Sgc- fron. a conspiracy i-> accuse a pcrsau of an offense for wliich he is liable to
indictment and removal from office.

OF PENNSYLVANIA. 173

second count charged that the defendants cons^ivtd false-ly and 1 806.
maliciously to accuse the plaintiff before the house of representa- q^ij.j.ixh
tives, of taking and extorting illegal fees from a certain Chris- v.

tian Hershberrrei\ and that in pursuance and execution of their Ogle.
said conspiracy, under false pretext and colour of legal process,
they caused and procured Hcrshberger to appear before a justice
of the peace, and prepared a certain writing in form of an affidavit,
wherein it was falsely stated that the plaintiff had taken an ille-
gal fee; and did endeavour to prevail on the said Hershberger
to make his affidavit to the facts stated in the said writing, when
they knew the contents of the writing to be absolutely false.
The general issue was joined, and upon the trial in October

1802, the jury found for the plaintiff upon both counts, and
assessed damages at GOO dolls, generally.

Reasons were offered to the Circuit Court for a new trial, and
in arrest of judgment, which they overruled in October 1804;
and as the plaintiff died after the verdict, to wit, in March

1803, they ordered judgment to be entered as of a term when
he was living. From this judgment the defendants appealed}
and the case was now argued upon most of the points decided
by the Circuit Court, by IVilkins and Addison for the defend-
ants, and by Riddle and Woods for the plaintiff.

TiLGHMAN C. J. delivered the opinion of the court, aftei
stating the case.

The first question is whether the Circuit Court did right in
entering judgment as of a term in which the plaintiff was living.
Although this point has not been absolutely abandoned by the
defendants' counsel, yet with great propriety it has not been
urged as if they supposed it was tenable. Direct authorities
have been cited by the plaintiff's counsel, in support of this
practice, (ti) It tends very much to the attainment of justice,
and we have no doubt but it is perfectly regular.

Of the remaining points offered in support of a new trial, and
in arrest of judgment, some have been al)andoned by the de-
fendants' counsel, and others insisted on. I shall confine mysell
to the latter. They may be classed under the following heads.

(n) Cumber v. Wane, 1 Sra. 426. Tuoier v. Duke of lifoufftt, I linn. 14S.
Trclavtnyy. Dithop rf Wincheittr, I liurr. 219.

174 CASES IN THE vSUPREME COURT

180G. !• That the declaration does not state that the defendants

OjijPP,^ conspired against the p\a.int\ff rvit/iout provable cause.

V. 2. That the declaration does not allege that the plaintiff was

OoLE. put to any inconvenience, or suffered anv loss or damage.

3. That the judge who tried the cause erred in charging the
jury that the defendants had not proved probable cause.

1. Tlie defendants* counsel have bottomed their arguments on
the first point, on this position, that the analogy between actions
for a malicious prosecution, and the present action is so great,
as to warrant the conclusion that the declarations in both actions
should be alike in alleging the want of probable cause. There
is however a considerable difference between these actions. The
action for malicious prosecution being founded on a malicious
proceeding bv the defendant in a court of justice, there is more
reason for alleging in that action than in this, that there was no
probable cause for the prosecution; because when legal process
is issued, the presumption prima facie must be, that those pro-
ceedings were proper. This is founded on that respect which
is due to the process of courts of justice. But even in actions for
malicious prosecutions, no good authorities have been cited to
shew that a declaration stating the prosecution to be false and
malicious, is bad after verdict; and without expressing our
opinion on a case not before us, we will only say that We are
far from being convinced that in such case judgment should be
arrested.

In a writ of conspiracy strictly speaking, it is sufficient to
charge the defendants with a conspiracy falsely and maliciously
to accuse the plaintiff of a crime, without saying any thing about
probable cause. This action on the case in the nature of a writ
of conspiracy, has been invented for the ease of plaintiffs, being
attended with much less form than the old writ of conspiracy.
When I say that two men conspired falsely and maliciously to
charge me with an offence, I go far towards saying that they had
no probable cause for their conduct; for if they had, they could
not properly be said to have acted maliciously. Besides, if proba-
ble cause had been shewn, the defendants ought not to have
been found g'liltj'; and we cannot do otherwise than presume
that pro!)able cause was not shewn. Nay it appears on the record
th"it the defendants had the full advantage of this point before
the jury; and one of the errors which they have assigned is, that

OF PENNSYLVANIA. 175

the judge was mistaken in charging the jury that the evidence 1806.
on the part of the defendants did not prove that they acted on Griffith
probable cause. t.,

2. The old writ of conspiracy charges a conspiracy in the de- Ogle.
fendants; and that conspiracy is the ground of the action. In

the present action likewise the conspiracy is the gist of the action,
although it may be necessary to shew some act in execution of
it. The declaration does charge such act; and we are of opinion
that inasmuch as the conspiracy was to accuse the plaintiff of
an offence for which he was liable to indictment, and removal
from office, the law implies damage.

3. As to the opinion of the judge that the defendants had not
proved probable cause, we think he was right. It is meritorious
to make candid inquiries into the conduct of magistrates, and to
prosecute them in case of extortion. But light reports do not
justify such conduct as was pursued by the defendants; espe-
ciallv as the plaintiff had explained to Mr. Ogle the true nature
of the transaction, before he had taken any measure in pursuance
of the conspiracy.

1T51 Upon the whole we are of opinion that the judgment of the
9c»si Circuit Court should be affirmed with costs.

Judgment affirmed.

***!; Lessee of Simpson afrainst Ammons and others. Pittsburg,

2H7| beptcinber

»«TN this cause a case was stated for the opinion of the court, I3th.

[_ '^1-*- which in substance was as follows: Jolm Bayiiton^ '^^'^^^^executed^by

IVharlo?!, and George Morgan^ were seised in fee as join- ♦wo out of

tenants of the premises in question on the 1st of August 1767. nanis is a

On the 11th of November 1769, Baynton and wife, ^T/or^an severance of

and wife, and Baynton for IVhartony but without any aiitho- tenancy'

rity from him, executed a mortgage of the premises to 5c;2-T'>c assig-

jomin Marshal!. After the death of Marshall the mortgagee, adnnnistra-

his administr.iiors on the \5th yanvary 1801, assigned the""^<''»

mortgage to the lessor of the j)laintiff. Baynton and Wharton xx\k\ main-

dicd nefore the 28th April 1802; and on that date TJ/o/p-on^'*'''*" <'i«'c'

1111/1 • l_ 1 XII- ""■"' '" '•"*

conveyed the whole of the premises to the lessor or the piam- o^n name,
tiff. The questions were two: First, Whether the mortgage

176 CASES IN THE SUPREME COURT

1806. severed the jointenancy. If it did, the deed of Morgan in

"^ 1802, convt-yed but a third; otherwise it was good for the

of whole: Secondly, Whether the assignee of the administra-

SiMi'"ON tors of a mortgagee can maintain an cjectmcr'.t in his c<-vn

''• name; for if he can, the plainiiff was entided to two thirds,
Ammons. I 1 1 • • ,

even though the jomtenancy was severed.

Riddle for the plaintiff. A mortgage is a mere security to the
mortgagee; it is not a disposition of the land, which is essen-
tial to sever a jointenancy. If it is redeemed by the jointenant
who makes it; he does not hold under the mortgagee, but under
his old title, which in equity has been all along in him. A gt mt
of a moiety would no doubf^ sever, and so does a grant revoke
a devise; but a mortgage is no revocation of a devise. 4 Bac,
Abr. 697. 2 Eq. Abr. 538. A recognisance which binds the
land, Is no severance unless it is executed in the life of the re-
cognitor. Co. Lift. 184. /;.

There is no doubt, that a mortgagee may maintain an eject-
ment in Pennsyhunia. [This was conceded by the whole
court.] It is equally clear that an administrator is entitled to
the benefit of a mortgage, unless it has been foreclosed, or the
equity of redemption has been released. Tabor v. Grover. (a)
MarshalPs heirs were therefore trustees of the legal estate for
the benefit of the administrators, and of course for the benefit
of their assignee, the lessor of the plaintiff. Now it is settled
law in this state, that a ce.itui que trust may support an eject-
ment in his own name.

Addison for the defendants. Tork \. Stone et al. {b) has decided
the first question; and it has been recognised as law ever since.
4 Bac. Abr. 697. It is for the interest of both parties that the
mortgage should be construed a severance; for if not, upon the
death of the mortgagor his representatives lose his estate, and
the mortgagee his security. It was here an alienation in fee to
be void on a subsequent event, which is a severance at law. Co.
Litt. 189. a. sec. 294.

I deny that the administrators could maintain ejectment in
their own name. The act of Assembly gives them a scire facias.
but not an ejectment.

^0 2 Vern. 367. ib) 1 ."ialL 158.

OF PENNSYLVANIA, I77

TiLGHMAN C. J. delivered the opinion of the court. 1806.

This case comes before the court, on a case stated for their Lessee
opinion. of

Baynton, Uliort07i, and Morgan, being seised in fee simple as Simpson
jointcnants of the land in question, a mortgage was executed ^ji^^'ioy^.
by Baynton and Morgan^ and by Baijnton for JF/iarton, to BeJi-
janiin Marshall; but Baynton had no authority to execute the
mortgage in the name of Wharton. The administrators of
Marshall, who is dead, assigned this mortgage to the lessor of
the plaintiff, who also obtained a conveyance of the whole land
irom Morgan^ since the death oi Baynton and Wharton. On
this case two points arise: First, Whether the jointenancy was
severed by the mortgage: Secondly, Whether the assignee of
the administrators of a mortgagee can support an ejectment iu
his own name.

As to xhc first,, the court are of opinion that the mortgage
was a severance of the jointenanc}-. The interest of Baynton
and Morgan passed by it, but the interest of Wharton was not
affected.

As to the second point, the legal estate in the two thirds con-
veyed to Marshall,, descended on his death to his heirs. But
the mortgage being in effect only a security- for a debt due to
the estate of Marshall,, his heirs were trustees for the benefit of
tlie administrators, who were entitled to the debt. It was de-
termined in the case of Kennedy v. Fury,, 1 Dall. 72. that cestui
que trust may support an ejectment in his own name. This
decision is founded on the peculiar situation of Pennsylvania^
where there is no Court of Ciiancery, to prevent inconveniences
which might arise from the obstinacy of trustees, who might
refuse to assist in the recovery of lands. It appears to us that
the case before us falls within the same j)rinciple. The equita-
l)le interest of the mortg;ige is completely vested in the lessor
of the plaintiff, and no third person can be affected b) his reco-
very in this ejectment. We are of opinion, therefore, that he
may recover; but as the interest of Wharton is not vested in
him, he can recover but two thirds of the land for whicli the
action is brought.

Vol.. T. /

178 CASES IN THE SUPREME COURT

1806.
r~~ M'MiLLAN «p-(7mj.'^ Birch. ib nil

Pttts''ltrg, <^ 2s r 30

Sdtur.'av, 7sr53r)

Srpi.mber In ErROR. il^^m

loth. J1J68)

To call a T~^HIS cause came before the court by writ of error from the

cler?\ man a A Circ uit Court of Washington county.

nciionable. ^^ ^^'^s an action of slander brought b\- Birch against M^- Mil-

Words spo- /^;^ for calling liini "a liar, a drunkard, and a preacher of the

dffetu'laiit of" devil.'' The declaration stated that the phxintifF was " a man

ami to the " of learning, integrity, and piety, and that for twenty eight

ton arhuich" years last past he had been and then was a minister of the

rrcsbytcry, a gospel in the Presbyterian church, and had taken upon him-
111 the course or j ...

of his de- " self the orders of the same." It also laid a special damage in

fence njjamst consequence of the slander, viz. that the plaintiff was refused

tliere admission into the Presbytery of Huntingdon as a member.

hroiight Picas, not Ruiltv, act of limitation, and justification.

apainst him > o . > > j

I'V the plain-

iif>, are not jj ^^.^^ proved at the trial of the cause, that the plaintiff" was a

actionable, " „ , . . . . .

he docs not Presbyterian mmister, regularly ordamed m Ireland; that he

V. ander came to the United States in 1 798, and on producing his cre-

desi.q-nedlv . . . (. .

from tlie ' dentials to the standing committee of the Presbyterian church

point in jj^ Philadelphia, was permitted to preach there; that he after-
question, for .... .
tlie purpose Wards came with his family to Washington county; that upon

?i!.""*^''"^ an application made to th Ohio Presbytery, he was rejected for

%'. Whether want of experimental knowledge i and that he appealed from

euig re us- ^j^^jj. sentence to the General Assembly, who, after examining
ed admission -" ' b

into a Pies- and considering the case, did not pass anj^ censure on the Ohio
surh'^snc iai ^''^sbytery, but determined that they found no ground why any
damap^e as Presbytery should not take the plaintiff up, and proceed with
take Roticc ^^'^ agreeably to the rules and regulations in such cases pro-
of, vided.

The plaintiff afterwards cited the defendant, who was also a
clergyman, before the Presbytery of Ohio, to answer for slander
and for unchristian threatenings. The defendant appear!.:d and
\vas heard in his defence. The Pr^■sbytery acquitted the de-
fendant of the charges brought against him, except for calling
the plaintiff '• a preacher of the devil," for which they repri-
manded the defendant, and he submitted. The plaintiff"appealed
again to the General Assembly; but apprehending that he should
not obtain a favourable decision, in consequence of his having

Birch.

OF PENNSVLVANIA, 179

committed some irregularities in IVashi'g-ion county, by adml- 1806.
nistering the sacrament and ordaining elders, in violation of the 7y|iT\jjL,
rules of the church, he gave up his appeal, and withdrew from lan
the jurisdiction of the General Assembly; after which the As-
semblv determined that they would have nothing more to do
with him, and that he never had been in union with the Presby-
terian church in the United State ., so as to be authorized to
preach as one of their ministers.

The plaintiff proved also as laid in the declaration, that he
failed in his application for admission into the Presbytery of
Huutin^g-don.

The words laid in the declaration, or some of them, were spo-
ken of and to the plaintiff" in the Presbytery of Ohio, while the
defendant was making his defence against the plaintiff's charge.

The cause was heard before Judges Yeates and Smith, in
October 1804; and the counsel for the defendant, among other
things objected 1st, that the action could not be maintained by
the plaintiff for words spoken of him in his profession of a mi-
nister of the Presbyterian church, because the evidence shewed
that he did not hold that office; and 2dly, that words spoken by
the defendant in Presbytery, while making his defence against
the plaintiff's charge, were not actionable. Upon both points the
court charged for the plaintiff, and sealed a bill of exceptions.
The jury found for the plaintiff.

' Rons and Addison for the plaintifl" in error, made four points:
1st, tliat the plaintiff below stated in his declaration that he
had been twenty eight years a clergyman of the Presbyterian
church,.and was so then. IJut it was proved that he never was
a ckrg)'raan of that cluirch in the United States; therefore he
failed in supporting his action. 2d, That the words laid were
not actionable, if spoken of a person not a clergyman. 3d, That
the special damage laid was not f)f a civil but ecclesiastical nature,
which the lav. would not notice. 4th That the words spoken by
the defendant in his defence before the Presbytery, were not ae-
♦ional)le.

1. The plaintiff must prove his case as it is laid in his dccla
ration, and should have shewn that he was a clergyman of the
Presbvterian church at the tinic the words were spoken. ColHi;

1 80 CASKS IN THE SUPREME COURT

1806. v* J^folhi. (f/) It a bnrristcr bring an action for words which arr
M'iMii- '^ disgrace to him in his profession, he must aver that at the time
LAK of publishing them he was a practising hxwyer. He must aver
"^^ that lie was " homo conci/iariu.s in Icgt-;^^ " homo cntditus^^
^^^'^"* will not do. C-> Bac. Abr. (Giri//.) 210. 218. 219. 1 Com. Dig.
276. The principle upon which these and all the cases upon the
same point proceed, is this, that the words being actionable only
as they are spoken of persons in a particular trade or profession,
it must be shewn that the plaintifl' was of that trade or profession
at the time of the words spoken, or the very essence of the ac-
tion is wanting. We have in this case the highest authority of
the Presbyterian church for saying that rhe plaintiff never has
I)een a minister of that ehurcli in the United States: His having
been so in Ireland, according to Coi/i.s v. Ma/in will not answer.
It was there laid that the plaintiff had used per magnum tempiis
the trade of buying and selling &c; but because it was not siated
that he used it at the time the words were spoken, it was ad-
judged for the defendant.

2. No charge of a general misfeasance is actionable, unless
the words are applied to the trade or calling. 1 Com. Dig.
268, 9. Stanhope v. Blith {b)^ Savile v. Jardine (c). In or-
der to make words actionable, they either must contain an ex-
press imputation of some crime liable to punishment, some
capital oflVnce or other infamous crime or misdemeanor, or
they must be spoken of one in an office of profit, which may
probably occasion the loss of his office, or of persons touching
their respective professions trades and business, and do or may
probably tend to their damage. Omloxv v. Home, {d) The words
" liar and drunkard" may be used with impunity; they are ex-
pressions of anger, and not of malice. 3 Bl. Comm. 124. note 5
Chr. And as to the phrase " preacher of the Devil," it certainly
is no worse than " brazen faced Belzcbub," or " Devil," or
" prince of darkness," which are not suable, because they im-
port passion, but no crime or discredit. Smith v. Wood, (c) The
rule in Smale v. Hamvion^ {/) that where the words spokei;
tend to the disgrace infamy or discredit of the party, they art
actionable, has been repeatedly overruled. Holt v. Schoffield. [g

(a) Cro. Car. 282. (c) 2 Salk. 692-

(6) M{ep. 15. (/) 1 Bulstr. 40.

OF PENNSYLVANIA. 181

i. This point was not made at the trial. If the words are not 180G.
actionable in themselves, this kind of damage cannot make them "tTrVivi "
so. The law has no measure for it; it is arbitrary to the last de- j^y^^j,-
gree. It is an injury purely ecclesiastical; for the Presbytery
has no salary, no living, no preferment; and if the plaintiff could 1jiR<^"-
not gain admission in one place, he might have gone to another.
The special damage must be of a temporal nature; and so it is
universally laid.

4. The plaintiff complained to the Presbytery of the woixls
laid in the declaration; and at his instance the defendant appear-
ed and went into his defence. If he had travelled out of his case
to slander the plaintift", it is unnccessaiy to sav what the law
AS'ould be; but it was in the very matter charged that the words
were used, and they were therefore justifiable from the occasion
of using them. The original words are out of the question; they
were barred by the statute. There is no head of the law in
which the cases are more uniform than in this; and they turn
upon a principle which at once favours the peace of society, and
the security of the individual; that where there is a proper occa-
sion for speaking the Vv'ords, the law will not implv malice even
from their falsehood. It i.^ on this ground that a servant cannot
maintain an action against his former master, for words spoken
in giving his character, unless he prove both malice and false-
hood; even though the master make specific charges of fraud.
Weathcrfitcn v. Hawkins. («) In a court of justice it is essentia!
that the defendant be allowed to speak freely in his defence; and
where a charge or recrimination is made bv him upon the point
in question, an action will not lie. It was thus ruled, where the
defendant bv his affidavit exhibited in court, allei;ed that the
plaintiff had s^vorn falsely. A.ttlij v. Tounir. (^/i) The same o!
words spoken before a justice of the peace, upon a question of
binding to good behaviour. Caller \. Dixon, (r.) So of a bill
exhibited to the Starchambu-, which is not a court of record,
provided the court had jurisdiction of the mattir. Burklcij v.
Wood, (r/) And so where in a suit in the spiritual court, the de-
fendant put in an exception to a witness, that he ivrs- perjurcdi
because said the court, it is in the course of justice, and not ex
malitia. Weston v. Dobnicl. (r) Tiie law extends the privilege

{a) 1 D. iSfM. 110. (c) \ Rep. M h. (c) Co. Jac \Cr..

(V ? Birr. 80- (,!) Crr. Eliz 2J0. 213.

V.
BlUCH

182 CASES IN THE SUPREME COURT

1806. to the counsel of a party, who mav justify even a charge of
M'MiL- felony* as being spoken in the legal and necessary txertise of
LAN his profession. Brook v. Montague, (a) Now that this mrtter
was before a competent tribunal cannot be disputed. It does
not indeed proceed by temporal punishment, but it had in this
instance a jurisdiction I)y consent, both parties having appeared;
and it might severely have punished the defendant, by expelling
him from the church. The rights of conscience and of public
worship are protected by the constitution; and with the latter
is inseparably connected the discipline of the church. To deny
the Presbytery the right of investigating complaints which affect
a member, is to overthrow their discipline, and with it many of
the interests of religion which discipline sustains. The Court
of King's Bench has indirectl)' su])ported the discipline of
Friends. King v. Hart. (/;) It is of public convenience.

Mountain for the defendant in error contended that whe-
ther the plaintiff below was or was not a minister, to call him a
drunkard was actionable in Pennsylvania. Drunkenness is not
only immoral, but it subjects the party to temporal punish-
ment. It is not a charge of so general a nature as to be of no
effect for want of precision; but it specifically fixes upon the in-
dividual an otTence against the law, which subjects him to a
fine, or in case of his inability to pay it, to imprisonment in
the house of correction. Many of the modern cases have been,
to use Lord Holt's expression, too learned on this point. His
own rule contains the sense of the best authorities, and certain-
ly contributes most to the public good; " Where words tend to
" slander a man," said he, " or to take away his reputation, I
" shall be for supporting actions for them, because it tends to
" preserve the public peace;" and the doctrine was adopted by
the court. Baker v. Pierce (c), Harrison v. Thornbitry (d).

But at all events the words are actionable M'hen spoken of a
elergyman. They necessarily destroy his influence; they take
from him his hearers; and they deprive him thereby of his sub-
sistence. There is a case in Alleyn 63. Dodd v. Robinson^ pre-
cisely in point, that an action lies for calling a clergyman a
drunkard. C Bac. Abr. 215. It is the same as to call a physician

(a) Cro. yac. 90 6 Bac. Ahr. 224. (c) 2 Lord Ray. 960.

C/') 1 Wm. Bl. 1H0 (d) GHb. Hep. in P.. JO. UT

BlUCH.

OF PENNSYLVANIA. 183

a quack, or a lawyer a knave. So to charge a clergyman with 1806.
incontinence. Harthi v. Herrings, (a) The only question then is, jynj^liL-
whether the plaintiff was a clergyman at the time the words were lan
spoken; and of this there can be no doubt. He is not stated to
have lieen a minister in communion with the Presbyterian church
in the United States, but simply a minister of the gospel in the
Presltyterian church. He was ordained in that church in Ireland,
he was received by the Presbvtery in Philadelphia^ and permit-
ted to preach by the standing committee; and he accordingly
supported himself by the exercise of that office. The very re-
ception in this state recognised tht ordination in Ireland; and
whether it did or not, this court, having proof of a regular ordi-
nation abroad, and of a continuance in the exerciseof the cleri-
cal office here, would be bound to consider him as a clerg\'man
of that church in which he was ordained. A minister of a cer-
tain church remains so until he abandons it, or is deprived for
misbehaviour.

The rejection from the Huntingdon Presbytery was not mere-
ly an ecclesiastical loss. It deprived him of an opportunity to
receive a call from a parish in communion with the church in
America. It is one part of a clergyman's preferment, which the
law so far considers of a temporal nature, a^ it naturalh leads to
temporal good.

If words spoken colourably by a party in his defence are not
actionable, suits at law will become instruments of defamation:
and certainly it is a mere colour of defence, to reiterate slander,
as was done in this case, under the pretence of justif\ ing it. As
it respects courts of justice in England^ the rule has however
been settled to a certain extent, and cannot be questioned. Biu
5t is uniformly stated to apply exclasivcly to cases " in the
course of justice;'''' and nothing is more clear than that the course
of justice lie s onU' through Courts cstai)lished by the law of the
land. The spiritual court has in that kingdom very extensive au-
tiiority over both person and property, and therefore stands up-
on the same footing in this respect with the other courts of the
realm. Hut the Presbytery is not even known to the law; it ex-
ists and acts bv consent. A proceeding before that body is no
more in the course of justice, than if it were before any self-cre-
nted society whatsoever. Their rules have no contact with the

',A 8 D ISf /•:. 130.

134 CASES IN THK SUJ'RKMK COUKT

LAX

1806. l^ws of the land; and although they mav regulate the disciphuc:
oi many churches, the law must be the same as though the}
govei-ned but one. If a defendant can justify vvords because
V. uttered in his defence before such a body, he may do it if ut-

BiRcii. tared before any body of men sitting upon the question, any
where, and under all circumstances.

TiLGHMAN C. J. after stating the facts, delivered his opinion
as follows:

The bill of exceptions contains two points: 1. That upon the
evidence given, the action could not be maintained by the
plaintiff, for words spoken of him in his profession of a minis-
ter of the Presbyterian church. 2. That the words spoken by
the defendant, while making his defence before the Ohio Pres-
bytery, against the charge exhibited against him by the plaintiff"
for slander, were not actionable. On both these points the court
charged in favour of the plaintiff.

In arguing the cause btioi-e us, the counsel for the plaintiff in
error made lour points which it will be necessary to consider.
1. That the words spoken are not actionable, applied to persons
m general. 2. That they are not actionable when applied to the
pLiintlir on the evidence in this cause. 3. That exclusion from
the Huntingdon Presbytery is no temporal damage, nor such as
the law will take any notice of, or suffer damages to be recover-
ed for. 4. That the words spoken by the defendant in his de-
fence before the Ohio Presbytery art not actionable.

First and second. Whether the words are actionable applied
to persons in genLiai, I think it unnecessary to decide, because
I am clearly of opinion they are actionable as applied to the
plaintiff. The reason wh)- certain expressions are actionable
when t.ppiicd to persons of certain professions is this: that from
the nature of the case it is evident that damage must ensue. To
say of a merchant that he is a ijankrupt, or of a lawyer that he is
a knave, must, if believed, necessarily produce damage. So to
say of a clergyman that he is a drunkard; because these words
if believed, must deprive him of that respect, veneration, and
confidence, without which he can expect no hearers as a minis-
ter of the gospel. Exjiress authority has been produced to shew
that these words are actionable, spoken of a clergyman in En-
trland. 'I'he defc-nclant's counsel do not say that thf character of
a clergyman is less sacred Or less worthy oi" protection here, than

OF PENNSYLVANIA. 185

in England; but they object, that hiasrauch as the plaintiff was 1806.
never admitted to the rights of a Presbyterian clergyman in the j\ii]\Iil.
United States^ he has failed in proving his case as stated in his lan
Narr. But in answer to diis it is to be remarked, that he has not ■^'•
said he was a minister of the Presbvterian church in the United ^
States; he only savs in general that he was a minister of that
church, and so he undoubtv dlv was; for he was ordained in Ire-
land^ and was never degraded from holy orders. He was what
the Presbyteries and General Assembly in the United States call
•A foreign minister ; and in that capacity he might, if he thought
proper, preach and receive money for preaching, from any that
chose to pav liim, without the consent of any Assembly or Pres-
bytery. Or if he proceeded in a regular way, and obtained their
consent, no new ordination would have been necessary; which
is an incontestible proof that the church here recognises an or-
dination in Ireland^ as investing a clergyman completely with the
order of the ministry. The plaintifT therefore was a minister of
the Presbyterian church; and the words spoken of him, if be-
lieved, must necessarily preclude him from any employment,
•.vhercbv he might obtain a living in the American church.

Third. This point is not mentioned in the bill of exceptions.
No objection was made to the charge- of the court in this re-
spect. I think it tiierefore immaterial. There can be no error in
the record, on account of special damages, because the words
arc actionable in themselves, and the law implies damage. Even
supposing for argument's sake that the loss of admission into a
Presbytery was not a matter lor which damages could be reco-
vered, (which be it remembered I by no means assert) it would
be unwarrantable to suppose after a verdict, that the jury had
givtn damJges on that account. Courts are always disposed to
support, and not to destroy, the verdicts of juries.

I'ourth. I come now to the last point, the only one which is
attended with any difficulty. It was rai^td suddenly in the
course of the trial; it was new; and tlic judges who tried the
cause, and who were obliged to declare their opinions in a short
time, delivered the inipressien of their minds, not without
doubt. I have given it the attentive consideration that it merits;
and though I cannot but feel difhdenre when I disagree with
the rcspcctal;!',: and learned gentlemen before whom llie trial
was had, 1 will proceed to ofi'er my reason-; for thinking thai

Vol. I, 2 A

BiKCH.

186 CASES IN' THE SUPREME COURT

1806. the words spoken by the defendant, when making his defence
~"jj^j7jvr~" before the Presbytery, are not actionable.

LAN I consider malice as an essential ingredient in slander. If I

say of a man that he is a thief, or that he committed murder,
the law implies malice in general; and it lies on mc to shew that
there was no malice in my heart. This I may do in various
ways. I may shew that I used this expression wli^-n examined
as a witness in a court of justice; or when I was concerned in
a prosecution, as attorney for the Commonwealth; and although
I was mistaken in the fact, no action lies. The occasion of my
speaking l)eing called upon by others, and only acting in the
course of mv duty, preclude the idea of malice. So what is said
by mvself or my attornies in mv defence in a court of justice is
not actionable; not only because of the occasion of my speak-
ing, but also because the public good requires that every man
should be allowed to speak freely in his own defence. It is the
same with regard to what I say as plaintiff in an action; because
there is as much reason why persons should enjoy freedom of
complahity as freedom of defence. But if any man should abuse
this privilege, and under pretence of pleading his cause, wander
designedly from the point in question, and maliciously heap
slander upon his adversary, I will not say that he is not respon-
sible in an action at law.

This freedom of speech in what is called a course of justice.
is not confined to courts of commoti law. Cases have been cited
to shew that it is extended to proceedings in ecclesiastical
courts, and proceedings before justices of the peace; and I have
no doubt but it should likewise be extended to proceedings be-
fore referees.

The objection in the case before us is, that Presbyteries and
General Assemblies are not courts of justice. Certainly they are
not; and depositions taken before them are no evidence in
courts of justice, because they have no authority to administer
an oath; and a person swearing falsely could not be indicted for
])erjury. But although they are not courts of justice, they arc
liodies enjoying certain rights, established by long custom, and
not forbidden by any law. They can inflict no temporal punish-
ment; and their jurisdiction is founded on the consent of the
members of the church. No extensive church can preserve de-
cency, good order, or purity of manners, without discipline. It
serves to correct a multitude of evils, which cannot and ought

OF PENNSYLVANIA. 18'

lOt to be subject to temporal cognisance. It corrects them too 1306.

m a manner the most mild, the most private, and the least scan- ~ , ,

, • • • 1- • • I. f M'MiL-

dalous and mjunous to religion; in u manner that may reiorm j^^j,

the offender, nithout exposing him to the open scorn and ridi- -■.

cule of the world; circumstances which sometimes render men Birch.
desperate. A jurisdiction of this kind, exercised only over
those who consent to it, certainly must be productive of good
effects; and it appears to me that the persons thus consenting
and pleading their causes either in a course oi complaint or de-
fenccy fall within the principle applied to those who are speaking
in courts of justice. If thty conduct themselves in a decent
manner, the occasion of speaking makes it improper that the
law should imply malice. 1 repeat the remark made before, that
if under a pretence of pleading a cause before a Presbyteiy, one
should designedly and maliciously wander from the point and
slander his opponent, he would be responsible for his conduct
in a court of justice.

Let us apply these principles to the case before us. It was
the plaintiff who first affirmed the jurisdiction of the Pres-
byten', and cited the defendant to answer before it. The de-
fendant did not decline the jurisdiction. What then was he to
doi' He must either confess that tiie words he had spoken of
the plaintiff were false, which if he believed them to be true
would be a great crime, or by acknowledging that he had
spoken them, and endeavouring to justify them, render himself
liable to an action in a court of law, which had been barred by
the act of limitation; for this is the consequence, if words
spoken there are actionable. Would these words have been
spoken at that lime, if the plaintiff had not extorted them!" And
after extorting them, shall he aj)plv to a temporal court for da-
mages? If thi^ law is so, will not ecclesiastical jurisdictions prove
traps for the unwary? May not the occasion of the defendant's
speaking be fairly and candidly said to warrant the conclusion,
that he spoke not through malice, but in his own defence; or at
least, ought it not to form an exception from the general rule by
which the law i>fip/irs malice? The subject suggests a multitude
of reflections; but I have said enough to explain the principles
on which my opinion is founded. Whether the defendant will
derive any advantage irom it I know not; for it is very possible
that on a new trial there mav hr sufficient evidence to establish
he plaintiff's action, independent of what passed before the

LAN

T'.

|8g CASES IN Ttli: SUFREMK COLRl

1806 Presbytery. It is very possible that the verdict alreody giten,
would have been the same if the court had charged on this
point, according to the defendant's wishes. But be that as it may,
he is entitled to the benefit of his exception. I am of opinion

Birch, that the charge of the Circuit Court was erroneous, in the last
point mentioned in the bill of exceptions; and therefore the
judgment must be reversed.

Brackf.nridge J. concurred.

Judgment revrrsed.

Pittsburg, Faulkner against The Lessee of Kddy, 'js'^'a

Saturday, 3r '29o

September _ ^ ! «:;^"*^^

13th. In Error. i/?^.,*^

The act of ^T^HIS was a writ of error to the Circuit Court of Allegheny

3-94 vlh county, upon a bill of exceptions to the opinion of Yeatf.s

proiiibits any and Smith Justices,
new applica-
tions forcer- _,, . . • ^ r ^l. 1 n r

tain lands The questions ansmg out 01 the bill 01 exceptions were

(Iocs not pre- argued by Foss for the plaintiff in error, and by Woods and

teration'of Addison for the defendant in error; and in delivering his

the names of opinion, the Chief Justice has rendered any further statement
former ap-
plicants, unnecessary.
The return

stir^fvor'is TiLGHMAN C. J. This cause comes before the court on a
merf Iv bill of exceptions taken on the trial in the Circuit Court of

prtmnjaae j^n^a-fienii county. The material facts stated on the record are

evidence 01 o J

the tnith of as follows: On the 25\.\\ April 1793, a certain John M'-Ket
rcuinied'^'^ entered applications in the land office for six thousand acres of
A deed is land, in tracts of four hundred acres each, in the names of
ble fn e\'i- ' sundry persons; of which the tract in dispute was one. In the
dence, until month oi May 1794, before any warrants were taken out, he
shadow of ^^^ surveys made on the applications. On the 24th May 1794,
tith- Is he sold his right in these lands to Gideon Hill Welb, and

Grantor." ^^^ Richard Hill Morris, who in yiine 1 794 paid the considera-
tion money to the state, and took out warrants, having pre-
viously altered the names of the applicants by consent of the
said M'-Kee, and with the approbation of the officers of the
land office, who have proved that such alterations v/ere cus-
tomary in the office. The first surveys being supposed to b'-

OF PENNSYLVANIA. 189

illegal, subsequent surveys were made under the direction of 1806.
M'Kee^ and returned, and accepted in the land office; and theTT""/^ ~
deputy surveyor having improperly and by mistake returned ^,_
the surveys as having been made in 3Iaij 1794, that mistake Lessee
was corrected in the land office, and the returns made to corre- o^
spond with th-r surveys in March 1795.

The plaintiff below, having given in evidence the articles of
agreement between M'-Kee^ and Wells and Morris for the pur-
chase of the lands, proved by the oath of the said M'-Keey that
the cabin and claim of a certain John Wolf were excluded by
the survey which is mentioned in the said articles viz, the
siirvev made before the warrants were issued. And the defen-
dant then offered to read in evidence to the jury, a deed from
the said Wnlf to John B. C. Lucas Esquire, dated 23d jfunc
1796, conveying the said cabin and claim of Wolf to the said
y. B. C. Lucas. The court overruled the evidence because
no proof had been given of any legal settlement made by the
said Wolf prior to the survey of Wells and Morris in March
1 795.

On this bill of exceptions, the counsel for the plaintiff in error
have raised three points.

First, That the alterations of the name of the applicant, and
of the name of the owner of the adjoining tract, which is refer-
red to by way of description and boundary, is contrary to the
act of 22d April 1 794.

Secondly, That the deed from Wolf to Lucas ought to have
been received as evidence.

Thirdly, That no parol evidence ought to have been received
of the surveys made in 1795, inasmuch as the first returns stated
the surveys to have been made in May 1794.

As to tin- frst ( xception, I am of opinion that the alteration
made in the application was not contrary to the act of 22d April
1794.* The intent of this act was to prevent the grant of any

• The fir»t section of tliis law, enacts, " That (iom and after tlic passinr
" of this art, no appliralions shall be rcccivtd iit the IuikI (iHice for any
" unimproved land within that part of tliiii Commonu ealtli, commonly called
*' the New piirdiasi , and tlic 'I'rianpular tract upon Late L'ne" The second
section enacts, that no warrant shill issue for the aboxe land, ejccept in
ra\our of prr«on» claiming hy settlement and improvtment; and that all
applications remaininpf on the files of the land otfice after the iMli y«n<'
1794, <(n wffich the piirchas'- money shall nf)t have been paid, shall be
Toid; with a nr^viiion in fnvour of certain persons 3 St. Latvt 581.

of
Eddy.

190 CASES IN THE SUFKEiME COURT

1806. "lore lands, except in certain specified cases; it being supposed

7^ that the vacant lands in the state would not be sufficient to

„, satisfy more than the amount for which the state had already

Lessee engaged to make titles. The alteration in question did not

increase that quantity; it evidently was for the very .same land.,

that was described in the applications entered by M^'Kee.

Therefore it does not violate the spirit of the law.

In arguing the second point, the counsel for the plaintiff in
error has not contended for the broad principle laid down in
JJ^DilPs lessee v. M'-Dill., (a^ that any deed may be read in evi-
dence, whether pertinent or not to the matter in issue. In this
he was certainly right. It has been generally conceived that in
that case the law was carried too far. But he relied on an agree-
ment between M*- Kee and Wolf^ that the cabin of Wolf should
not be taken from him. The record states not one word of any
such agreement; and the case stands nakedly as of one who, hav-
ing no kind of title, makes a deed conveying his right to another.
It has been the practice at Nisi Prius to reject the deed in such
cases; and I see no reason why it should be altered. It makes
no difference to the party offering the deed, whether it is reject-
ed at once, or whether the court suffer him to read it, and then
tell the jury that it passes nothing. But it expedites the trial of
causes to reject the deed in the first instance.

As to the f/izrJ point, it appears to me extremely plain that it
was proper to receive evidence to explain the whole transaction.
The return of an officer is prima facie evidence, but not conclu-
sive, of the truth of the matter returned. It would be a reflection
on courts of justice, if in a case like the present, where the party
had in truth procured a legal survey to be made, he should be
estopped from shewing it, merely because there had formerly
been an illegal survey, and the oOicer had made a mistake in his
return. And this too, when the Commonwealth, the party most
interested, had by its officers permitted the truth to be explained.

Upon the whole I am of opinion that the judgment of the Cir-
cuit Court be affirmed.

Brackenridoe J. concurred in the opinion of the Chier
{a) 1 Ball. 64. 1 Dali 69. S. P.

OF PENNSYLVANIA. 191

Justice with one remark, that if there had been any proof of a 1806.

scint/f/a of ihle'm Wolf^ however small, he should have been oiTrT^, ^TZZT

opmion that the deed ought to have been received as evidence. v.

Lessee

Judgment affirmed. ^^

Eddv.

lb 191
93r2«

s i2» OzEAS aica'mst ionK^o^ administrator of Foulke. Wednesday,

'} *^-l ^ December

^ I "'HIS was an action for money had and received, tried be- One partner

^ fore the Chief Justice, at Nisi Prius in June 1 8C i. The facts *^^."""* ™'^'"'-
• I 1 , 1 • -rr 1 /- ;/ 1 1 1 tain assump-

in evidence \verc, that the plaintiff and /o?«>tc had been con- sit ag-ainst

cerned in several adventures to New-Orleans^ upon the accounts ^.'"^ other,

r u* 1- ITT ■ lor tlie pro-

ot which, different sums appeared to be due to the plaintiftlrom ceeds of a

Foulke^ who had received the proceeds; and for the recovery of P-J''^"^''^'"P

1 ... „ adventure,

these sums with interest the action was brought. Que of the wit- unless they

nesses swore that two or three vears before Foulke^s death, the \^'''^ settled

, . .— , " . . their ac-

plaintift demanded a settlement of his accounts, which Foulke cMmts and

promised to make in a short time; but no account stated and f ^'"j"^'^^*
settled by the parties was produced upon the trial, nor was there
any evidence that such a settlement had ever taken place. Upon
these facts, Uoplc'uison for the defendant requested the court to
reserve the point, whether the plaintiff, being a partner of
Foulke and et^ually concerned in the adventures, could recover
in the present form of action. The point was accordingly re-
served, and the jury found for tiic plaintiff.

S. Lv'jij for the plaintill'. The objection to the form of action,
being designed to turn the plaintiff round to a very tedious
suit, is entitled to no favour. That a settlement and the striking
of a balance are essential to sM])port this action, seems far from
being the case, according to the decision £.v/M/7r'A^(j/6ci', referred
to in Wats, on Part. 221. where it was held that if a partnership
has been determined, and the solvent partner has paid the
debts, he may be, without any settlement, the petitioning credi-
tor for a commission against his partner; and this must proceed
tipon the giound of there being an ascertained debt due to him.
SiiU further, where an account has been a long time in the

192 CASES IN THE SUPREME COURT

1806. hands of the debtor without objection, this is as conclusive-
77 against him as a stated account; Tickcl v. Short; (a) and it will

■y. be presumed, to support the action, that the balance was esta-
JoHNSON. blished before the jury by some evidence of this kind. But what
action is to be adopted? Account refidcr is almost obsolete, 1 Bac.
Abr. 31.36.37.; and is attended with vexatious delays. We have
no courts of equity, and therefore cannot resort to a bill. The
action for money had and received is therefore the best form
of action, because it is the most like a bill in equity, Jestoyis v.
Brooke; (b) and has been allowed to perform that office in the
state of Pe7insi/hania. D^Utricht v. Mclchor. (c) The legis-
lature of this state have moreover protected us by directing
that no suit shall be set aside for an informality of this kind.
7 St. Laws 563. Act of March 21st 1806.

Hopkmson for the defendant. This is a case of special part-
nership, in which no account was settled; and nothing is clear-
er than that in such a case money had and received does not
lie. It is not an objection to form, but to substance. One part-
ner has nothing but a moiety of what remains after the debts of
the concern are paid, and the accounts arc settled. If this ac-
tion lies, under the circumstances in evidence, it must either be
made to effect this settlement in the course of the proceeding,
which is impossible, or it will work injustice. But it does not
rest upon principle; it has been repeatedly decided that unless
there is a settlement and a balance struck between the parties,
assumpsit does not lie. Wats, on Part. 221. 226. It is laid down
in terms by Judge Buller in Smith v. Barrow (d') that " one
" partner cannot recover a sum of money received by the other,
'' unless, on a balance struck, the sum be found due to him
" alone:" and it does not seem clear that even an express pro-
mise to pay the balance is not essential. Moravia v. Levy (c),
Casey V. Brush {f)^La Malairev. Caze^ Ct. Ct. U. S. April 1 806.

TiLGHMAN C. J. delivered the opinion of the court.

This is an action on the case in which the plaintiff declared
for money had and received to his use by Adam Foulke deceased-

(a) 2 Vtz. 239. (J) ^ Ji.ksf E. 478.

(A) Conup. 795. (e) 2 JD. iS" E. 483. Note-

OF PENNSYLVANIA. .. 193

It was proved on the trial, that the plaintiff and Adam Foulke 1806.
were engaged as joint partners in an adventure to Nezv-Orleans. "q^e/vs
Thejur}- were of opinion, that on striking the balance of the i,,
partnership accounts, the sum of three hundred and twenty dol- Johnson.
lars was due to the plaintiff, and found a verdict accordingly.
There was no proof that the partners had ever settled their
accounts; and at the request of the defendant's counsel, the
point was reserved for the consideration of this court, whether
under these circumstances the plaintiff could support this action.

It was my wish to support the action if possible, because the
jury have decided on the merits of the case. But upon consi-
dering the nature of the action, and the authorities which have
been cited on both sides, I am of opinion that the plaintiff cannot
recover. The money received by one partner during the part-
nership, is not received for the use of either of the partners,
but of both of them. All that either partner is entitled to, is a
moiety of what remains after all the partnership debts are paid.

The proper remedy for one partner against the other, is by
an action of account render. No case has been cited by the
plaintiff's counsel to shew that an action like the present can be
maintained, unless the partners have settled their account, and
struck the balance. It is of importance that the forms of action
should not be confounded. They are founded in good sense,
and convenience. The defendant has an interest in insisting
that the proper form of action should be preserved, of which
this court has no right to deprive him. It is most convenient
that the partnership accounts should be settled before auditors.
It would be extremely difficult, and in many cases almost im-
possible to settle them by a jury. I am therefore yf opinion that
the plaintiff cannot maintain his action.

Vol. I. 2 B

194

CASES IN THE SUPREME COURT

1806.

Fox administrator of Hockley a gainst Wil cocks

and others.

T^HIS was an appeal from the Orphan's Court of the city antt

ney of the
intestate,
or has used
it himself;
and it Hes

has been
done with
the money

Saivrday,
Dfirt-mber
20tli.

An adminis-
trator is
cliarpcable
wit '.interest,
who. the has -*- county of Philadelphia. Mr. Fo.x the appellant, who was

of neKle'ct'^in ^^*'"g administrator of W. B. Hockley ^ settled his account in
not iMitting the register's office, from which it was passed to the Orphan's
Court for confirmation. With consent of the pa:rtics, it was re-
ferred by that court to auditors for examination and statement^
and the appellees, who were next of khi to the intestate, gave
notice to the administrator, that he would be reqtiired to pro-
Bhew what duce to the auditors the bank book of his administration, and to
state on affirmation whether he had used for his own purposes
any and what monies of the intestate. At the ineeting of the

Bir he is not auditors the dispute turned" upon two points, the amount of
liable to in- • n i i i • • • i • « r

terest until compensation allowed to the admmistrator m the register s or-

after twelve fice, which the next of kin said was too great, and a credit
months from ,., i-iii r\ • c • i

the death which was claimed by the next ot kin tor interest upon sums they

of the in- alleged to have been a considerable time in the administrator's
hands; but Mr. i^o:v refused to produce his bank book,ortomakc
the required statement upon affirmation. The auditors allowed
the compensation as it stood; and although they refused the
credit for interest as it was claimed, they nevertheless charg-
ed Mr. Fox £ 150 as a reasonable compensation for any use
he could or did make of the money remaining in his hands dur-
ing his administration; reporting at the same time, that it did
not appear he was ever unprepared to pay any money legally
demanded of him. To this report both parties filed excep-
tions; the appellant, that he had been charged with any sum in
the shape of interest; the appellees, that he had not been charg-
ed enough; but by agreement the report was confirmed, and an
appeal made to this court, to obtain a decision upon the princi-
ple that was to govern the case.

lb I'M
2b ;)()l)

4wii(;

14sr241
10sr4.il

a.c)

'v4or>

2w4(J«;

iwsGdS

123

Rawle for the appellant. The charge oi £\50 is wrong upon
the face of the report; for the auditors have reported that the
administrator was never unprepared to pay money upon de-
jnand; and from their silence it is clear there was no proof ot

OF PENNSYLVANIA. 195

his having used it. Considering him then as a trustee for the 1806.

next of kin, it is settled hivv in Petinsylvania, that, under the case — '

put, he was not liable for a cent of interest; Knight v. Reese; (a) ^,.
and as an administrator under the act of 1713, he was chargeable Wilcock:'
with interest only on the surplus of the decedent's estate remain-
ing in his hands, " when the accounts of his administration were
" or ought to have been settled and adjusted." 1 State Laws 101.
sec. 6. There is no allegation of delay in the final settlement of
his account; and although an administrator may apply to the
Orphan's Court for their leave and direction to put out any
Jnoney belonging to minors, yet gross negligence must be shewn,
to charge him with interest for the omission.

C. y. Ingersoll for the appellees. The precise question in
this case is, whether an administrator is not liable to pay inte-
rest after refusing to produce the bank book of his administra-
tion monies, or to state on oath whether he has applied them to
his own purposes. The Orphan's Couit proceeds in many re-
spects like a court of equity. It has a variety of its forms and
powers; and may enforce obedience to its orders and sentences
by sequestration and imprisonment. It is indeed no where spe-
cially invested with authority to appoint auditors; but as they
arc necessary to give effect to the jurisdiction of the court, their
appointment must be supported; and they must judicially be
considered as representing the body from which they emanate.
As therefore, in contemplation of law, it is the court that exa-
mines and states the account, and as its authority to order the
production of books and a statement upon oath cannot be ques-
tioned, the same was within the power of the auditors, who are'
instruments and representatives of the court. Upon a refusal to
produce the books and to make the statement upon oath, every
presumption arises to support our claim to interest; as, that the
administrator used the monev for himself, or suffered it im-
providently to lie in his hands unemployed. Mmijestce conjes-
sionis est nolle jurare.

In either of these cases he was liable to pay interest by the
law of Pennsi/lvaniay and according to the doctrines of every
system of law whose foundation is reason. Hv the 4th scctiop.

(n^? null IP"

196 CASES IN THE SUPREME COURT

1806. of the act of 1713, an administrator mav put out the money of

i^ minors to interest, upon such sc'curit^• ;is thf Orphan's Court shall

rox , ' ■ ...

It. approve; and \i no person van he found whu is wilhng to take thp

WiLcocKS inonev, then he shall be responsible for the principal enhj. But
the necessary implication of this section is, that if he omits to
make application to the court, or cannot shew an exertion on
his part to find a person willing to take the money, he shall be
responsible for the interest as well as the principal. The sixth
section is still stronger; for it expressly charges him with inte-
rest upon the surplus in his hands after his accounts are or ought
to be settled; which by the existing law should be done within
a year from the date of his administration. All our acts in pari
?nateria shew the design of the legislature to charge adminis-
trators with interest, if they do not put the money out; 4 St.
Laws 151; a fortiori where they use it themselves.

The English doctrine applies with peculiar force; for in
England an executor or administrator is allowed nothing for
his care and trouble; and there is therefore one inducement
wanting in that country to charge him with interest, which
exists here. Now the authorities from the time of Charles the
second to the present dav, with a few deviations, concur in
settling the rule, that administrators shall pay interest for money
which they either employ for themselves, or are negligent in
not employing at all. The liability to pay interest in the one
case, results from its being a breach of duty in the administrator
to neglect making it; in the other, it is a dictate of the plain-
est 'quity, that the profits of a capital, or at least something in
lieu of them, should be paid to the proprietor of the fund; and
to compel from the administrator a disclosure of the facts, it
has become a standing rule of presumption in Chancery, that
the money has been used by him, unless he states, under oath,
what has been the particular disposition made of it. Hilliardv.
Gorge (a), Ratcliffv. Graves (6), Landen v. Green (c). Attor-
ney genera/ v. Corporation ofStafford{d^^ Lee v. Lee (ej. Bird
v. Lockey (f)y lVilkin.<i v. Hunt (^), Newton v. Benntt f/z),
Treves v. Townsend (?). Littlehales v. Gascoigne^ (Ji) fixes the

(a) 2 Chan. Cat. 235. (/ ) 2 Vern. 744.

(b) 1 Vern. VJ6. (^) 2 Atk. 1.51.

(d) Id. 36. (i) Id. 384.

(r) 2 Vern. .598. (t) 3 Bro. Ch. Rep. 74

OF PENNSYLVANIA. 197

principle on abroad and liberal ground. " An executor's pay- 1806.
*' ing or not paving interest," said Lord T/iurlow, " depends p
" on its being necessary for him to keep the money to answer i,,
*' the exigencies of the testator's affairs, or not; but where he Wilcocks
" holds the money longer than is necessary, he must answer
" interest." And in Franklin v. Frith^ {ci) the point of interest
was abandoned bv the counsel for the executors. Piety v.
Stace^ fb) and Pocoik v. Redding-ton, (c) are both to the same
purpose, and in point.

The civil law adopts the same principle. Denizart tit. Inte-
ret. 11. 51. 53, 54. tit. Tuteur. 61, 2, 3. 6. 9. 2 Pothier de
Bienf. 36. 48, 49.

Lnvis in reply. The question is properly stated by Mr. In-
gersoll-y it is whether the mere refusal to produce bank books,
and to make a statement upon oath, should be admitted as evi-
dence that the administrator used thi- money, or kept it by him
too long. Now it is clear the presumption from this refusal
must be at an end, if there was no authority in the auditors to
demand a compliance; and this of itself hardly admits an argu-
ment. Auditors are not known to the law; their appointment is
good only by consent of parties; and they cannot proceed a step,
if the administrator chooses to recede. The Orphan's Court
itself has no power to tender him the oatli, or to compel his ap-
pearance- before auditors; such authority is no where found in
the law, and there has never been an instance of it in practice.

The cases from the Eng-lish books cannot of course apply,
until more matter is before the court; and whenever there is
occasion to apply them, it will be found that those which bear
the most severely upon administrators, charge them with in-
terest only where they have used the money, or kept it by th^m
a long- time; that is, in case of fraud or gross negligence.

TiLGHMAN C. J. delivered the opinion of the court.

It appears that S. M. Fox, the acting administrator of W. B.
HockUij, settled his administration accounts with the register,
which were transmitted, as usual, to the Orphan's Court, by
whom, with the consent of the said administrator and next

(a) Bro. Ch. Kep. 433. {c^ 5 Vrz. W. 794.

ilA 4 rrz.;>. 620

198 CASKS IN THE SUPREME COUT^T

180G. of kin, the accounts were referred to auditors. On appearance

Y~ before the auditors, there was no dispute concerning unv item

-J,. charged in the administration accounts: but the next of kin ob-

Wii.cocKsjectcd to the commissions allowed the administrator, and they

claimed interest for sums of money, which they alleged had

remained a considerable time in his hands. The auditors were

of opinion that the commissions allowed the administrator were

reasonable; and that the administrator should be charged with

150/. as a just and reasonable compensation for any use which

he coiilfi or did make of the money remaining in his hands,

during the course of his administration; and they declared at

the same time, that it did not appear that the administrator

was ever unprepared to pay any money legally demanded of

him.

The next of kin and the administrator were both dissatisfied
with this report. Both filed exceptions; and it was agreed that
the report of the auditors should be confirmed by the Orphan's
Court without prejudice to either party, in order to afford a
'^-round for an appeal to this court: on which appeal every objec-
tion was to be heard, that could, under the exceptions filed, have
been made to the report of the auditors in the Orphan's Court.

The next of kin excepted, that the administrator had large
sums in his hands for a long time; that they called upon him to
produce his bank book before the auditors, and to answer on
oath, whether he had made use of any, and how much money
of the deceased, and for what length of time; both which he re-
fused to do: that in consequence of this, they were entitled to
interest on the sums which so lay in the hands of the adminis-
trator; but that the auditors refused to allow interest.

The administrator excepted, that the auditors charged him
with 150/. interest, although they state, that it did not appear,
that he was ever legally called on for money on account of the
estate, which he was not ready to pay.

What I consider as the principal point in this ease, is, whether
the administrator is liable to interest, for the sums of money,
which from time to time remained in his hands, before the set-
tlement of his accounts.

By the actof 1713,acc'.4. («) it is enacted that "executors, ad-

(a) 1 St. La^c 98--

OF PENNSYLVANIA. 199

*' ministrators, and guardians, may,by leave and direction of the 1806.
" Orphan's Court, put out their minor's money to interest: but ^ox
" if no person can be found to take it, who ■will give good sccu- v.
" rity, thev shall only be responsible for the principal." By the ^^' ilgocks
same law sec. 6. " they shall onl\- be liable to pay interest on the
" surplusage of the estate remaining in their hands, when the
" accounts of their administration are, or ought to be, settled be-
'' fore the Orphan's Court or register."

It is therefore the duty of executors, administrators, and
guardians, not to let monev remain unemployed in their hands:
and by fair implication from the words of this act of Assembly,
if they do through negligence suflVr it to remain unemployed,
they are responsible for interest: much more so if they use the
money for t/wir otvn purposes. As the law expressly declares
that they are only liable to pay interest on the balance in their
hands, when the administration accounts are or ou^ht to be set-
tled, it should seem that they are not liable to interest during
twelve months from the death of the Intestate, since that period
is reckoned reasonable for the settlement of those accounts.

I'o la\- down rules, by which it may be ascertained in every
case, whether administrators shall pay interest on balances in
their hands, is impossible; because every case depends on its
own circumstances. But I think it may be established as a prin-
ciple, that interest is payal)le, where the administrator has been
guilty of neglect in not putting out money, or where he has
made use of it himself. («) Both the act of Assembly and the prin-
ciples of universal reason concur in this; and it is agreeable to
the authorities cited from the law of England, and the civil law.
Still it remains to I)e decided by the facts in each case, whether
the principle is applicable. As to the auditors, no law has been
shewn, which satisfies me, that they have power to call for the
oath of the administrator as to the use he has made of the mo-
ney, or to demand the production of his books. At the same
time I cannot help remarking, that the administrator sliould
reflect well before he declines tlie offer of his adversary, to ap-
peal to his own books: because it lies on him, to shew what has
been done with the money; and unless he does shew it, in :i
satisfactory manner, he leaves himself open to the conclusion
of having used it for his own purposes.

I'l) Vide Granberrj't Exer-ito' v Cranberry, 1 n'rf.j// 24<^.

200 CASES IN THE SUPREME COURT

180G. The Court having given their opinion on the point of law

' y submitted to them by the exceptions, it remains for the par-

1,, ties to determine, whether they will acquiesce in the report ol
Wii.cocKsthe auditors, (men certainly of excellent character and experi-
ence in business) or proceed to a further investigation of the
accounts.

Yeates J. and Smith J. were not present at the argument,
nor at the delivery of the court's opinion.

CASES

IN THE

SUPREME COURT

PENNSYLVANIA.

jb I'he Commonwealth against Boyer.

^^«/ _ 1807.

THE defendant was tried before Tilghman C. T. and- - —

Smith J. at a court of Oyer and Terminer, holden by the Febniary
Judges of the Supreme Court in the county oi Philadelphia, in-Oih.
Jannarij 1807, under the following indictment: "The R-rand ^" '"^^'''^"

.•no rncnt for

" mquest, &c. &c. do present that Nicholas Boyer, kite of the siealinj^ two

" countv aforesaid, yeoman, on the first day of Maii in the vear^^" dollar
- • •' • - notes of the

ol our Lord 1806, with force and arms at the county aforesaid Freshknt,

''in a certain lane near the highway, in and upon one John''''^"'"''"'"/

. r co7t\pany of

Dtiffcij, in the peace of Cod and the commonwealth then the bant Uni-

" and there being, feloniously did make an assault, and him the '^'[•^'''";J^^c-
-"; _ •' 'is na<l. I hey

" said John DuJ/cy in bodily fear and danger ol" his life in the should be
•' lane aforesaid, then and there feloniously did put, and txvo tcn^^^''^ '■" ^^

' . promissory

''■Hollar notes of the President directors and comfnuuj of the rtf^^es for thti

^' ban/: of the United States; one ten dollar note of the President?,^"'''^ °^

-' directors and compamj of the hank of North America; one five S^uWhcihtT

'' dollar 7iotc of the President directors and combanu of the Inrnk !'" 'T-'^k' a
•J I J J mclit IS ban

" of Pennsylvania, and one three dollar note of the Philadclphiaf<>r Inying-
'' bank, being altogether of the value of thirty eight dollars, o/I;f^f,"'^^j;'^^
" the goods and chattels of the said John Du/fl-y, from the per-i"rf chattels
" son and against the will of the said fohn Duffey in the lane "f,^^',!; P'^"'"'
" aforesaid, then and there feloniously and violently did steal,
•' take, and carry awav, contrary to the form of the actof Asscm-
VoL. I. ' ' '2C

202 CASES IN THE SUPREME COURT

1 807. " bly in such case made and provided, and against the peace and
Common- " <^lJgiiiO' ^^ ^^^' commonwealth of Povist/lvania.^^ He was
wealth acquitted of the robbcrij^ and found guilty of the larceny; and
■^'- aniotion was made in arrest of judgment upon two grounds:
o^EU. j^ Because the indictment did not pursue the act of Assem-

bly in describing the property alleged to have been stolen; and
the property described was not the subject of larceny at com-
mon law. »

2. Because the indictment laid the property alleged to have
been stolen, to be the g-oods and chattels of John Duffey.

It was argued on the 16th and 18th of February^ by Mere-
dith and S. Levif for the defendant, and by the Attorney general
for the commonwealth.

The act of Assembly upon which the indictment was founded,
was passed on the 15th April 1790, and the 5th section is as fol-
lows: " Robbery or larceny of obligations or bonds, bills obli-
" gator)-, bills of exchange, ^rommore/ notes for the payment of
" money ^ lottery tickets, paper bills of credit, certificates grant-
" ed by or under the authority of this commonwealth, or of all
'•'' or any of the United States of America^ shall be punished in
*' the same manner as robbery or larceny of any goods or chat-
" tels." 2 St. Laws. 804.

For the defendant it was contended, that the property de-
scribed in the indictment did not appear to be such whereof a
Jarceny could be committed ; for it was not stated that they were
promissory notes for the payment of money. A note of the Pre-
sident directors and company of the bank of the United States^
is not necessarily such a promissory note; because it may in fact
contain no promise or engagement whatever, and in addition
to this, may have already been paid and cancelled. Where the
words of a statute are descriptive of the Jiature of the offence,
there it is necessary to specify in the particular words of such
statute; Rex v. Pemberton; (a) and the court will not, bv a
forced intendment, support an indictmt.-nt which is defective in
the description of the crime, since they are restrained by the
same principle which limits the operation of penal statutes to

(fl) 2 Burr. 1037.

OF PENNSYLVANIA. 205

cases within their letter. The notes are also laid in this indict- 1807.
ment to be of the bank of the United States &c. The effect *^* T^n^mon^
this language in vulgar use is not a question for the court, but wealth
on the contrary its legal import; and this evidently is, that the v.
notes were the property of the bank; which leaves it still more Boyer.
doubtful whether they were promissory notes for the payment
of money. Craveri's case, 2 East Cr. Laxv 601. is in point. He
was indicted upon the stat. 2 Geo. 2. c, 25. for stealing a certain
note commonlij called a bank note; and all the Judges on re-
ference to them, held the indictment ill, as in describing the
property stolen, it did not follow any of the descriptions of pro-
perty in the statute.

The indictment states the notes to be of the goods and chat-
tels of Duffel). In the case of the King v. Sadi and Morris^ (a)
it was determined by all the judges to be improper to lay bank
notes to be chattels^ though they were also of opinion that that
word might be rejected as surplusage, if the indictment were in
other respects sufficient. In that case they were laid to be the
*' property and chattels" of S. S.; but here if " goods and chat-
" tels" are rejected, the indictment is gone. There is no acces-
sary after the fact for receiving money; because money is not
goods and chattels within the acts which make it felon}' to re-
ceive goods and chattels, knowing them to have been stolen.
Gut/^s case (^), Morrises case (c), Dea?i's case (d).

For the commonwealth it was said that no other certainty was
required in an indictment, than wiiat is called by Lord Cake
" certainty to a certain intent in general^^' and not in every par-
ticular. No other description of the offence is necessary, than
such as will inform the defendant what crime he is called to an-
swer, as will appear to warrant the jury in their conclusion of
g;uilty or not guilty upon the premises delivered to them, and as
will so define the crime to the court that they may apply the le-
gal punishment. Rex v. Horn, (e) Can there be a question upon
the face of this indictment, what crime the defendant is called to
answer? Is not a note of the President directors and com-
pany of the bank of llie United .Stales y in the strictest sense u
oote drawn by tiiat incorporation? For if this preposition indi-

(u) 2 Enut Cr. J.cm 601. (t/) J E,ul 64C

(t) I Leazh 276. < i^) Ccnvp. 68?

(0 2 irncA 52S

J04 CASKS IN THL SUPREME COURT

1807'. catcs property in the hank, then the second reason In arrest ol

. ■judgment must fail upon the defendant's own argument, since

v-onimon- •' ^ _ * ^

wealth ^^^ words " of the goods and chattels" may be stricken out as

■V. surplusage; and then the articles stolen will be notes " of the
IJoYEH. "said jfo/ifi Dnjfeijy It is the same as if they were laid to be
notes drawn by the company, which must necessarily be intended
to be promissory notes for the payment of the money mentioned.
If thev had been paid and cancelled this might have been shewn
under the defendant's pica. The contrary reason has too much
subtility in it for justice. It leaves nothing to the discretion oi
the judges, who although they " will not suffer a man to be
" condemned of any crime whereof the jury have not expressly
" found him guilty, by any argument or implication from what
" they have so found, so on the other hand they will not suffer
" a criminal to escape for so trifling an exception, which it would
" be absurd and ridiculous to take notice of; for nimia subtilitan
" in jure reprobatur^'' 2 Haivk. c. 25. s. 61. Craven'' s case
turned upon its being laid to be a note convnonly called a bank
note; for if those words had been omitted, the other words
would have come expressly within one of the descriptions in
2 Geo. 2.

That promissory notes are goods and chattels can hardly be
questioned; for although bank notes which are paid and receiv-
ed as cash, may pass under the description of money, yet the}
are legally nothing more than choses in action, and are ranked
under the head of chattels personal by all the elementary
writers. 2 Bl. Coinm. 397.

TiLGHMAN C. J. The prisoner was indicted for the robbery
of jfohn Diiffeij in a certain lane near the highway, of the fol-
lowing property viz. " Two ten dollar notes of the President
" directors and company of the bank of the United States; one
" ten dollar note of the President directors and company of the
'' bank oi NortJi America; one five dollar note of the President
" directors and company of the bank oi Pennsylvania; and one
" three dollar note of the Philadelphia bank; being altogether
" of the value of thirty eight dollars of the goods and chattels of
'' the said John Diifeij:'

On tht trial of this indictment, the juiy acquitted the prisoner
of the robbery^ and found him guilty of larceny. His counsel
have offered tv/o reasons in arrest of judgment. 1st. That the

OF PENNSYLVANIA. 205

Indictment does not pursue the act of Assembly, by which the i on''

property alleged to have been stolen was made the subject cf—

robbery or larceny. 2d. That the Indictment lays the property to . i ,

be the goods and chattels of Duffeij. -^^

It is admitted that bank notes were not the subject of larcenv Boyeu
at common law. But the px-esent question depends upon the act
of Assembly of 5th April^ 1790, sec. 5. by which it is enacted,
" that robbery or larcenv oiprom'isaorij notes for the payment of
" money, shall be punished in the same manner as robbery or
" larceny oi any goods or chattels.''''

The punishment of robbery and larceny being severe and
ignominious, we must confine ourselves to those strict rules of
construction, which have ahvavs prevailed in the consideration
of indictments on highh' prnal statutes.

The subject is not altogether new. Decisions have taken place
in England ox\ a statute similar to our act of Assembly; I meau
the statute of 2 Geo. 2. c. 25. s. 3. !)y which, among manv
other things, bank 7iotcs, and notes for the payment of moneij^
are made subjects of felony. In the case of the King v. Craven. »

who was indicted on this statute for stealing " a certa'in note.
** commonly called a bank note, of the value of one pound.
" marked &c. dated &cc. and signed by A. Hooper, for the
" (iovemorand Company of the bank of ii//^-/rt?z^/, by which said
" note, said Hooper, for said governor &c. did promise to pay
" to Abraham Neivland, or bearer on demand, the sum of one
" pound, the said note being the property of one T. G. &c.,"
after conviction, all the judges, on reference to them in March
1801, held the indictment ill laid, as in describing the property
stolen to be a note, commonly called a bank note, it did not fol
low any of the descriptions of property in the statute, and in
other respects seemed inaccurate. What those other respects
were, is not mentioned. But from what is mentioned, we see
the very strict construction supported by the English judges.
One of the descriptions in the statute is, notes for the payment
of money. Our act of Assembly s^y^, promissory notes for the
payment of money. The indirtment should cither aver in the
words of the act of Assembly, that the notes stolen wtrc pro-
missory notes for the payment rf moneij, or give sudi a descrip-
tion as provL'3 them incont'stablv to have been pronussorv notes
lor the payment of money, without conjecture, or reference tc»
farts not stated in the indirfm. ti». T:i the cp.ic before us, the

BOYER.

206 CASKS IN THE SUPREME COURT

180r. indictau'iit charges the notes to be " two ten dollar notes o/*thc

Common- " Pi"esident directors and company of the bank of the United

weahh " StatcSy^ and so of the rest. Now though I am satisfied from

1'- having often seen notes of these banks, that they must have been

promissory notes for the payment of money, yet I cannot say

that this positively appears on the face of the indictment.

A note of ■a. bank is a general expression, by no means posi-

tiveljf importing that it is a note by which that bank promised

to pay money.

It appears upon search that the precedents of indictments on
this act of Assembly, have not been uniform. In the case of
the Commonivealth v. Dolan and Donelly^ in the Mayor's Court
October sessions 1801, the exception now urged was taken to
the indictment. No judgment was given, because the defen-
dants absconded; but since that time it has been usual to frame
the indictments so as to avoid the exception.

Upon the whole, I am of opinion that this exception is good.
The judgment must therefore be arrested.

It is unnecessary to give any opinion on the second pointj
although I would by no means have it understood, that I think
the indictment bad because the notes are laid to be the goods
and chattels of John Diiffey. Yet I certainly consider it as
more correct to lay them to be the property of the person from
whom they are stolen, {a)

Smith J. Two reasons have been filed in arrest of judg-
ment; if either of them be valid, the judgment must be ar-
rested.

Whether the great strictness in favour of life, which has at
all times been required in England, in every point of indict-
ments in capital cases, ought to extend to indictments for
offences formerly capital in Pennsylva?iia, but now subject
only to imprisonment at hard labour, and a certain proportion
of the time to confinement in the solitary cells, will deserve
great consideration when the point comes directly before the
court. For the humane Judge Hale complains, and the com-
plaint has been a thousand times repeated since his time, " that
" this strictness has grown to be a blemish and inconvenience
*' in the administration of the law; for that more offenders
" escape by the over easy ear given to exceptions in indict-
" menLs, than by their own innocence; and many times gross

(a) Vid. 1 Dyer 5 b

OF PENNSYLVANIA. 207

" murders, burglaries, robberies, and other heinous and ciying 1807.
" 0'-ence>>, remain unpunished by these unseemly niceties; to"T7~~~~
" the reproach of the law, to the shame of government, to the Avealth
" encouragement of villany, and to the dishonour of God." t^'-
2 Hale 193. So far as these unseemly niceties have prevailed ■"°"'^^^'
in canital cases decided before the revolution, we are fettered
by them. We are not at liberty to overrule an exception which
has prevailed before in a case exactlv in point, although every
judge and every well read lawyer who hears it, may be con-
vinced it has no foundation in the merits of the particular case,
or in the general principles of law.

However, great as this evil undoubtedly is, it is perhaps bet-
ter that it should be submitted to, than that the opposite evil
should creep into its place. Should courts launch into a sea of
uncertainty, having no land marks to guide them, the innocent,
not knowing under a vague charge in the indictment what they
are really to answer, mav suffer; and I do not know that the
guilty will have a less chance of escape than they have under
the present strictness. This consideration will make us " rather >
" bear those ills we have, than fly to others that we know not of.''
Where courts are not bound by established precedents or by
adjudged cases in point, they are at liberty to exercise a sound
legal discretion, in adjudging whether judgment in a criminal or
in a civil case shall be arrested.

I will now consider the two reasons filed in arrest of judg-
ment, in their order.

1. It is generally a good rule in indictments at common law,
that the special manner of the whole fact be set forth with such
certainty, as that the party may know with what offence he is
charged, and thereby be enabled to prepare for and instruct his
counsel in his defence; that those words of art, which the law
hath appropriated for the description of the offence, must be in-
serted in the inrlictment, and cannot be supplied b) any other
words. 2 Ha-ivk. 224. 5. The same rules which are laid down
in the books, respecting indictments at common law, are gene-
rally applicable to indictments on statutes. 2 Haxvk. 245. 'I'herc
IS no necessity in any indictment grounded on a statute, to re-
cite that statute. Hut unless it be recited, neither the words
contra formam staluti^ nor any periphrasis, intendment, or con-
elusion, will make good an indictment which does not bring
«be fact prohibited or commanded, in the doing or not doing

208 CASES IN TJIK SUPHLMK COURT

1807. ^vhercf)f the oflVnce consists, xvithin all the material xvoriu

T^mnicTi.- <?/ ^'''^ statute. Idevi '249. Indeetl, besides pursuing the very

wealth -words of the statutt, it is sometimes necessary to add othei

"* • words to state the fact fully, ciircctly, and expressly; as

in indictments for perjury on the statute of 5 Eltz.^ and for

usury &c.

Now what are the material words relating to this point in the
act creating- the crimes, or to speak more correctly, making
promissoiy notes for the payment of money the subject matter
of robbery and larceny, ibr which the defendant has been in-
dicted, and of one of which crimes he has been found guilty by
the traverse jury? They are contained in the 5th section of the
act of 5th April 1790. The only words in this section descrip-
tive of bank notes, art pro}nissorij notes Jor the payment of vio-
nei{; but such Avords are not stated iji the indictment in question
as descriptive of the bank notes, for the robbery and larceny of
which the defendant has been indicted, and for the larceny of
which he has been found guilty. The words in the indictment
describing the bank notes are " Two ten dollar notes of the
"•' President directors and company of the bank of the United
'' StatesP'' &c. Now these not being the material words in the act
of Assembly, making bank notes the subject matter of robbery
and larcenv, they not being so at common law, and this indict-
ment being grounded on the act of Assembly, it cannot be sup-
ported; this exception is valid, and judgment must be arrested.
However, it does not generally follow that because judgment is
arrested, the party escapes punishment if guilty. The attoraey
general may move the court to have him bound over to answer
lo another indictment, and he cannot avail himself of judgment
being arrested for a mistake in the uiclictment. He must answer
to anotlier indictment properly describing the offence with
which he is charged.

2. I have my notes before me on which I had formed my
opinion on tlie second exception; but it is not now necessary to
give that opinion. I will only say, that on a consideration of all
the cases, I am by no means prepared to say that laying the
bank notes to be the goods and chattels of Dujfey would vitiate
the indictment, were they otherwise technically described.
Hov, c-vcr, perhaps it will be advisable in future to lay them as
x\\Q property of the o-,v'iicr.

Judgment arrested.

OF PENNSYLVANIA. 209

1807.

209
61
397
479
162
96

Smith as^ainst Porter and others executors of Sm i t h . ^«''«f* V.

o March 25tl

*' I "'HIS cause was originally instituted in the Common Pleas A debt
-■- of Montgomeri/ county, from whence it was removed to ■.p(\"|j|,'fj^J^'^"
the Circuit Court by habeas corpus. It was an action of assump- Act of li-
sit to recover a debt due by the defendant's testator, to which Jvit'^.e%,'v'(l^
the defendants pleaded non assumpsit and payment, and the Act]>y a clause
of /imitations, and the plaintiff replied in the usual form. At jg^j^,)^ ^^jj
the trial in the Circuit Court, the jury found the following spe- the testa-
cial verdict; " And now, to wit jfune 3d 1805, a jury being jj^btg^Q {,g
" called come &c. who being duly sworn and affirmed do say,P=iid'
" they find on the pleas of non assumpsit and payment for the
" plaintiff, and assess damages at 167/. 3s. 8d. On the plea of
" the Act of limitations they find that there was no acknowledg-
" ment or promise to pay by the testator or executors within
" six years before the action brought. But the testator by his
'' will dated the 23d 3Iay 1800, ordered and directed, /roe//:^
" the will. (The clause referred to being in these words ' /
" order and direct all my just debts and funeral expences to be
^'' paid.^) But whether by law the words and directions of the
" said will are a sufficient assumption and acknowledgment to
" take the case out of the operation of the Act of limitations or
" not, the jury cannot say, but refer the decision thereof to the
" court. If the court shall be of opinion that the words and di-
" rections of the said will take the case out of the operation of
" the Act of limitations, then the jury assess the damages aa
" above, with six pence costs. But if the court shall be of opin-
" ion that the said Act of limitations is a bar to the plaintiff's
'•' recovery, notwithstanding the words and directions of the said
" will, then the jury find for the defendants, unless the plaintiff
" shall elect to suffer a nonsuit."

It was agreed by the counsel, that the question of law arising
out of the spixial verdict should be argued in bank in the tu'sl
instance, and accordingly the case was removed by appeal, as
from a decision of the Circuit Court.

Mi In or (or the plaintiff. Tlic debt is due in conscience, and
although barred by the statute, it is revived by the order to pay
11 his just debts. We proceed here upon the same principlf^
Vol. I. 2D

210 CASES IN THE SUPREME COURT

1807. which govern courts of equity, where it has often been held
Z that such a testanientar>' provision takes the case out of the

^, statute. In Aiidrews v. Brown (a) it was held that if a debtor

Porter, makes his will and directs that all his debts shall be paid, or
makes any provision for the payment of his debts in general^ the
debt is revived, and is brought out of the statute; and in La-
con V. Briggs^ (^) though Lord Hardwicke appears not to
like the doctrine, yet he admits it is the established rule in
equity, that where there is a trust of real estate for payment
of debts, it revives debts barred by the statute of limitations.
Lord Mansfield approved the principle, and said that even a
court of law upon a proper case would say that if a man devises
his estate for the payment of his debts, all debts barred by the
statute should share the benefit of the devise. Trueman v.
Fenton. (c) An anonymous case mSalk. 154. is to the same
point; and all the cases go upon the ground that the debts
still exist in equity, and the duty remains; the statute has not
extinguished that, though it has taken away the remedy; and of
course where there is a provision for payment of debts, a debt
upon which the statute has run is within the provision equally
with any other debt. Gofton v. Mill, {d) It is necessary to give
some operation to the words adopted by the testator in this
case; and if they have not this effect they have none. A di-
rection to pay debts is at least as effectual in this particular as a
trust to pay them.

Frazer and Porter for the defendants. The amount of the
English cases is, that where a trust is created by will for the
payment of debts, those barred by the statute are included; but
they go no further. The point cited from Andrews v. Brown
was not the point decided, it was the argument of the court; it
was also Lord MansfieWs argument in Truetnati v. Fenton.
In Lacon v. Briggs there was a trust created by I^ord Brad-
ford's will for the payment of his debts; so also in Gofton v.
Mill^ and in the anonymous case from Salkeld; in fact there has
been no pretence in any case to exceed this limit. Even this
has excited the murmurs of the most respectable judges iR

(a) Precedents in Chan. 385.
(6) 3 AtL 107.

(d) 2 Vcrn. HI. 4 Bac. Air. 484. 6 Com. Di^- 341.

OF PENNSYLVANIA. 2H

^Ingland; and it is very difficult to assign any reason for it, un- 1807.
less we take that which is assigned by the master of the rolls in Smith
Norton v. Turvill, -a) that trust estates are not within the sta- v.
tute. The case of the Earl of Strafford v. Blakeway in the Poktf.r.
house of Lords has verv much shaken all the decisions in equity,
even in these cases of devises in trust, 3 Bro. Pari. Ca. 305.; so
much so that Lord Hardivicke said he was very glad that the
cause of Oughterloney v. Poxuis did not turn on the question
whether the demand, which was barred by the statute of limi-
tations, was revived by the trust, for he should be under some
difficulty to determine it after the case oihord Strafford; Anibl.
231. J and in a case which soon after this of Earl Strafford
came before Lord Chancellor King^ where the lapse of time
from the commencement of the debt had been considerable,
although the testator had willed his executors to pay his debts,
he allowed the plea of the statute. Legastkk v. Coivne. (b) But
the decisions have at no time gone the length of the plaintiff's
argument. Here the order was entirely useless; the law would
have done the same without it, as far as lands and personalty
would go; and the devise may be considered as merely void.
] P. lyms. 90. Cox^s qitiere.

TiLGHMAN C. J. delivered the opinion of the court.

This case comes before the court on a special verdict; and
the single question is whether a debt due on account, and
barred by the act of limitations, is revived by the following
clause in the will of Robert Smith: " I order and direct all my
"just debts and funeral expenses to be paid." Clauses of this
kind are very usual in last wills. It is a form of old standing,
])robably introduced from English precedents. There are some
countries in which it now is, or heretofore may have been use-
ful to direct the pa) mciit of debts in a man's will, because it
may tend to make certain kinds of property subject to tlie pay-
ment, which otherwise would not have been so. But in Penn-
iijlvania it is altogether unnecessary, because without such
direction the whole property of the testator real and personal,
must be applied to the payment of his debts. To give this
'lirection the largest import which it can bear, it is no more
than the desire of the testator expressed to his executor, that

■m)2J'. Wmx UV '!'> If, ,.../.• 19 !

2X2 CASES IN THF. SUPREME COURT

1807. his just debts shall be paid. Whether the debts are just or not

Smith "^'^^^^ ^^ ^*^^^ ^® the judgment of the executor before he makes

r. a voluntary payment; and il upon a candid examination he

Porter, thinks a debt not justly due, it would be doing violence to the

words of the testator, so to construe them, as to deprive the

executor of the legal means ol defence by pleading the act of

limitations. But an executor is not allowed to plead that act

against a just debt: on the contrary if he knows it to be just, I

think it is as dishonest in him to use that plea, as it would be in

the case of his own debt. Considering, therefore, the clause in

question according to its obvious meaning, without regard to

judicial decisions, it cannot be said that it revives a debt barred

by the act of limitations.

But as this Court is bound by the authority of cases adjudg-
ed by their predecessors, it becomes necessary to inquire what
decisions have been made.

Some period for the limitation of actions is necessary for the
peace of society. I believe that in all enlightened countries re-
gulations for the purpose have been adopted. Like all other
good things, they arc liable to abuse; and the indignation which
is excited in honest bosoms at an attempt to evade payment of
a just debt, by a legal subterfuge, has sometimes produced de-
cisions which, although not now to be contradicted, are scarcely
to be reconciled to reason. The slightest acknowledgments of

debt, though very far from any thing like a promise, have
been held to be evidence sufficient to justify a jury in finding
that there was an actual promise. But the industry of the plain-
tiff's counsel has not produced a single case in which it has
been decided, that a direction in a will like the present revives
a debt barred bv the statute. It was several times determined
between th<: years 1690 and 1726, that where a testator creates
a fund in trust to pa)' his debts, the creditors barred by the
statute shall cov.f in equallv ,vith others. In the year 1727,
however, the House of Lords in England^ reversed a decree
which was founded on this principle in the case o( Blakewaif v.
The Earl of Strafford^ 3 Bro. Par. Ca. 305. In the year 1744,
Lord Hardwicke states the rule to be, that debts barred by the
statute shall be paid out of a trust fund of lands created for pay-
ments of debts, although he dechires that he does not see any
good reason for it. 3 Atk. 107. Bat in 1754, he says, ihai this
principle has been a good deal shaken by the decree of the

or PENNSYLVANIA. 213

House of Lords in Lord Strafford'' s case, and that if the case igor.
before him had turned upon that point he should have taken time T" "

toconsidcr it.^' ^. 231.1n the case oi Legast'icw .Coxvnem 1730, -^,^
MoseleiJ 391. it was expressly decided that the plea of the sta- Porteu.
tute of limitations is a good bar in a case where a testator or-
dered his debts to be paid. This case is reported by Mosely who
does not stand high in reputation; it is probable however that
the decision was made as reported, because it was but three
years after the decision in tho house of Lords in Lord Straf-
ford^s case, and seems to have been founded on it.

In our own courts, I know of no decision on the point in
question, although I understand that on more than one occasion
intimations have fallen from different judges unfavourable to
the revival of the debt; but as no decision was made, it would
not be proper to give weight to these intimations. In point of
authority then the matter stands thus : there is one decision on
the point that the act of limitations is a bar, notwithstanding the
direction to pay all just debts; and there is no expiess decision
to the contrary'. This b-ingthe case, and feeling no inclination
to go beyond the principles that have been established, I think
n\\ s« II bound to savthat I do not conceive the direction by Ro-
bert Smith to pay his just debts, can be fairly construed so as to
deprive his executors of the right to plead the act of limitations
in such cases as th^n- think proper.

I am therefore of opinion that a nonsuit be entered accord-
ing to the agreement of the parties, the plaintiff having elected
to enter a nonsuit instead of judgment for the defendants.

1 ^^

214

r yv

347

■ 3pw 74

3pw 78

115

266

214, CASES IN THE SUPREME COLKI

^^^''' ' SEPTEMBER TERM 1807.

Pittsburg,

September RoBERT M'CuLLOUGH and GeOKGE M'CuLLOUGH

ogiiinst (juetner.
In Error.

Summons \ 7^ 7" ^^^^ ^^^ EiTor to the Common Pleas of Cruwford coun-
jigamst twc, VV t}'. The record she v/td that a summons issiud from the
to one, and couit below at the suit oiGuetner agoinst the two lU^Cidloughs^
"nil»ilhabei"jjpj ^j^^j jj. was returned nerved as to Gear tee, and nihil habct
as \u the », r • 11-

other; 'after- as to Robert. Mr. lrvi?ie, an attorney, entered his name upon

wards an at-^}^g docket, without restriction, opposite to the names of the

tOi'iieytr.ter'. ' ...

his anpciir- defendants; and he afterwards signed as their attorney an agrec-

ance withovit j.j^gj^j in which the action was entitled aeainst both defendants,
reslviction ' . ...

opposite the and which referred to certain persons all matters in dispute in

name of the j^ above cau.ie. The referees awarded in favour of the plain-
on the dock- tiff, and judgment vv'as entered upon the award. A fi. fa. was

et; It IS a Vjgj^ issued to AitP-ust 1804, bv which a mill and some land
good appear- " ' - _

anceforboth. were taken in execution, and an inquest held, who found that
uesthas'rc ^^^^ fcnts and profits would pay in seven years. The inquisition
iurnedthat was returned and filed, and in November 1805 the plaintiff made
nrofits u V '^^ entry on the docket that the execution was disconiifiucd. He
pay in seven then took out a second //'. fa., and levied on lands of Robert,
phiiuifiran-'^^^^'*^^ were condemned and sold. The court below was moved

notdiscon- to set aside the second execution, which they refused after ar-
linue his fi.

fa. and take gumcnt.
out a new

one, wiiltout J^aldxvhi for the plaintiffs in error, took two exceptions;

leave oi the •• _ ' •

, '.'ji-t. 1st. That the judgment was lAf^jixn^i Robert M'-Cidlough, dXihou^

the return to the process shewed that he was not a party. He
said it did not appear that Robert had authorized any person to
enter an appearance for him, for there was no warrant of attor-
ney filed agreeably to the act of Assembly. One partner can-
not enter an appearance for another, or bind him by an agree-
ment of reference. Edwards v. Carter (a), Kyd on axvards, 42.
Strangfordx. Green (b). Much less the attorney of one part-
ner. Bacon v. Dubarry. (c)

ia) 1 Stra- 473. (c) Salif. 70.

(y) 2 Mad. 228.

OF PENNSYLVANIA. 215

2d. That the discontinuance of the first execution was irre- igoT".

gular, as the plaintiff had made an election of his remedy, and ' ^p

the land was in cfTect ah-eady extended to him. He should at all lough
events have applied to the court; for if it is optional with him v.

to take a new execution against the same or other lands, he mav Guetsep. .
defeat the act of Assembly, and harass the defendants for ever.

A. W. Foster for the defendant in error, and S. B. Foster for
the purchaser at sherifF^s sale, argued

1. That in the present stage of the cause it must be taken that
there was a sufHcient legal appearance for both defendants, as
the attornev had entered his name generally, and had agreed to
a reference which bound both. Somers v. Bdabrega (a). Hilk
«t al. v. Ross (i), in point.

2. That it was clear that a plaintiff must in many cases be en-
titled to discontinue h\s fi. fa. and to take out another writ; as
in this case, if it had appeared after inquest that the defendants
had no title to a part of the land. For while the //. fa. was in
operation, as it might be considered here, the plaintiff could
never have a ca. -sa. 3 Bl. Coinm. 419. And if the court could
permit such an act, they certainly might confirm it, as was done
below after argument.

There was also an argument upon the validity of the award,
but it was not noticed in the court's opinion.

Per Curiam. The judgment below must be anirmcd, be-
cause it sufficiently appears that the attorney appeared for both
the defendants. IJut the execution was erroneous, because the
plaintiff, having levied upon land, held an inquest which deter-
mined that the rents &c. were sufficient to pay in seven years,
and had that writ returned and filed, had no power without the
court's permission to take out a new execution. This has been
the practice and understanding of the courts of Nisi Prius, and
great inconveniences miglit (;nsu<; from a contrary i)ractice; be-
cause the plaintiff might set aside the j)roceedings and levy
again on the same land repeatedly, until he got a jury to con-
demn it, which would take away from the defendant tiic bonr-
't of the act of Assembly upon this subject.

(a) \ Dall 161. (A) 3 D.i//. 33l

lb 3161

216 ' CASES IN THE SUPREME COURT a^''««7

1^26'jI
1807. fl*^*"";

OW372

Saturday, iL B E R T ff^fl?/?^; W 1) . i-taoj

September M

12th. In Error. la 3n,;/

A parol par- 'THHIS was a writ of error to the Common Pleas oi Fayette
twecn te- county. ?roo«^ the plaintiff below, brought an action of

j.ants 111 partition against Ebert^ to which he pleaded noii terient insimul.
made by -^^ ^^^^ ^"^^^^ ^^ the cause, Wood gave in evidence a deed from a
maikins: a certain John Lea to himself for an undivided moiety of the
sion on t)ie premises ill the declaration, and another deed from the same Lea
sroiind, and to the defendant for the other undivided moiety. The defend-
correspond- ^^t then offered parol evidence to shew that Wood and himself,
ing separate before the institution of the suit, had agreed to make partition,
is pood, not- and that accordingly they met upon the ground, and with the
Mithstand- assistance of a surveyor mutually employed by them, they ran
for the pre- and distinctly marked a line of partition, and actually made
vention of division of the land by each taking possession of the part allot-
perjiiries. ted to him by the other, which had been so held in severalty
ever since. This evidence was overruled by the court, and a
bill of exceptions sealed, upon which the case was now argued.

Addison for the plaintiff in error contended that the evidence
should have been admitted, because 1. partition by parol be-
tween tenants in common was good at common law; and 2dly
since the statute of frauds it was equally good if followed by a
correspondent possession.

1. Littleton is express that partition between parceners may
be made as well by parol without deed, as by deed; and the
same law is laid down by Sir Edward Coke of tenants in com-
mon, if they execute the same in severalty by livery; Litt. sec.
250. Co. Litt. 169. a.; and in Docton v. Priest (a) it was held
that a partition between tenants m common is good without
deed, if made upon the land^ for this amounts to a livery in law.
This is exactly our case.

2. A parol agreement concerning lands, partly executed, is
good in equity, 1 Fonhl. 164. ch. 3. see. 8.; for this is not within
the statute of frauds, as the evidence of the bargain does
not lie merely upon the words, but upon the fact performed.
2 Pqw. Cont. 300. Earl of Aylesford^s case, (p) So wher^

(a) Cro. Eliz. 95. {b) 2 Stra. 78?.

OF PENNSYLVANIA. 217

the agreement is confessed without being executed in part. 1 1807.
Pow. Cont. 292,3. JVhitchurch v. Bevis ^a), Attorney Gen. v. ~~j:^^^^~
Day (*), Potter v. Potter (c), CoUington v. Fletcher (dj. And v.
in the case of a parol pai-tition and a long possession in confor- ^^' odd.
mity with the agreement, equity will not suffer even the equali-
ty of the partition to be controverted, but will order convey-
ances according to the partition. Ireland v. Rittle. (e) In all
these cases the statute is considered with reference to its object,
which is to prevent frauds and perjuries; so that an agreement
in which there is no danger of either. Chancery has always
held to be out of the statute. Our act of Assembly, which in the
particular now in question copies the English statute, is to be
taken with the English decisions, as equity is a part of our law.

Ross for the defendant in error answered, that if the cases
were examined, it would be found that a parol partition by
tenants in common was not good at common law; and that it was
explicitly so stated by Sir W. Blackstone^ who says that " by the
" common law, coparceners being compellable to make parti-
*' tion, might have made it by parol onl\'; but joint tenants and
*' tenants in common must have done it by deed, and in both
" c.ises the convevance must have Ijeen perfected by livery oi"
" seisin." 2 Bl. Comm. 324. 4 Com. Dig. 311. The statute of
frauds has however abolished the distinction, and made a deed
necessary in all cases.

Mr. Ross was then about to argue that the equity decisions in
England could not be of any authority here, because we
had no Court of Chancery; and when the act of 21 March
1772 for the prevention of frauds and perjuries was passed,
it wa.s known to the legislature that we had no Court of
Chancery. But upon the Court's intimating to him that it had
been the settled practice of the Supreme Court to proceed
upon equity principles, he relinquished that point.

He then said that it was not clearly settled what part perfoi
-nance was sufficient in equity; but it must certainly be such a-;

(a) 2 Brmjn. Ch. 559 (</) 2 Atk. 155.

(Z.) 1 Vet. 220. (0 1 -M- 541-

Vol.. I. op

J 18 CASES IN THE SUPREME COURI

1 807. necessarily prcvcntcdfraud, which was not the case here, because

Ebeut '^ separate possession of different moieties might be had in point

V. of fact by tenants in common, without a complete severance of

Wood, their title. At all events the partition should have been specially

pleaded, and the possession under it should have been averred.

In Chancery the part performance must be alleged in the bill,

or the statute will bar.

TiLGHMAN C. J. delivered the opinion of the court.

The defendant in error brought an action of partition against
the plaintiff in error, who pleaded non tenent insimul^ and
thereupon issue was joined. On the trial of the issue, Ebert of-
fered to give evidence of a parol partition having been made by
lines run and marked on the ground, and of possession having
been taken by each party respectively according to this parti-
tion, and the part allotted to each having been held in severalty
from the time of the partition to the time of bringing the action.
This evidence was overruled by the court, upon which a bill
of exceptions M'as taken, and whether the evidence was proper-
ly rejected is the question now to be decided.

The defendant in error contends that the evidence ought not
to have been admitted, 1st, because the partition was made b)
parol; 2d, because if it had been in writing it was not admis-
sible on the issue joined, but ought to have been specially
pleaded.

The first objection is founded on the act of Assembly of 21st
March 1 772, by which a writing is made necessary for the pass-
ing of any estate or interest in lands. This act of Assembly, so
far as respects the point under consideration, is in substance the
same as the English statute of frauds and j^erjuries; in the con-
struction of which it has been determined that specific execu-
tion of a parol agreement shall be decreed in equity, where the
agreement has been carried into effect in part only. This deter-
mination was founded on two principles : 1st, that where the par-
ties have acted upon their agreement, there is no danger of
perjury in proving it; and 2d, because it is against equity that a
man should refuse to perfect an agreement, from which he had
derived benefit by an execution in part. Whether the courts of
Chv.ncery have gone further than they ought, in thus indirectly
giving efficacy to a parol agreement concerning land, we do not
think ourselves at liberty now to Inquire; because the prinei-

OF PENNSYLVANIA. 219'

pies I have mentioned have been adopted by this court, and 1807.
long considered as the law of the land; and to question them~^jjj^~
now, would shake many tides acquired under their authority. v.

\Vc therefore think ourselves bound to say that the evidence Wood
offered by Ebert ought to have been received, unless it was im-
proper because not applicable to the issue joined; which is the
second point for consideration.

The plaintiff below declared that he and the defendant held '
the hind together and undivided; the defendant pleaded that
they did not hold it tog-ether; and this was the point of the is-
sue. Now what was the evidence offered by the defendant?
Why that he and the plaintiff had made partition, which was in
direct affirmance of his plea, that they did not hold together;
because if they held in severalty, they could not hold together.
The court are of opinion therefore, that the evidence offered
by the defendant below ought to have been received, and that
the judgment of the court of Fayette county was erroneous, and

must be reversed.

Judgment reversed.

j^«oi Moore a (gainst Waii .

./'Hi

*"l'jl In hKROU. Pittsburg.

'ilff Monday.

*^ WT^^'^ of error to the Common Pleas of Washingtori coun- J^;,'J''"'^"'

^^ ^ ^ tv. Wait^ the defendant in error, was sued before a jus- if a justice

lice of the peace, who gave judgment against him for 88 <i"Jls. |^'^J'|^ |^. ^'

with interest from a certain day, making the whole amount 104c(rtain sum

dolls. 2G cts. He appealed to the Common Pleas, and there .^"j,'" ^""^j^j^

pleaded the general issue to the plaintiff's declaration, but said nhovc his ju-
, . ..... r • • 1- .• V ]• ^ ,_ risdictioii,

nothing of the justice's want of jurisdiction. A verdict was.^^^^j 1,^^, j^_
found for the plaintiff for 112 dolls. C4 cts., and upon a motion rinilant ap-
m ari'cst of judgment, the court below was ol opmion that as the (j,^,,,,,,^,,
transcript which accompanied the appeal was in place of a writ, Picas, ;ii-
and the foundation of all the proceedings in court, judgment j|JJJ.'^^.'jjjly
could not be rendered on the verdict, because the transcript tlic ^rciur.il
shewed that the justice had no jurisdiction, and all subsequent .^ tm,.iai^
proceedings were a nullit\. Ihe judgment was accordingly .ju'ljjincnt
arrcsted, and the plamtift took his writ of error. rested. TIio

prooecdinp',
upon an app''al .iff not dr novo in the Common I'I'tia

^220 CASES IN THE SUPREME COURl

1807. Campbell for the plaintiff in error said that the justice had

MooHE ^^^^ exceeded his jurisdiction, because the liquidated sum was
V. 88 dolls, and the judgment in fact for no more. Hut the ground
Wait, on uhich he relied was, that as the defendant had pleaded to
issue, he coidd not afterwards take advantage of the defect ol
jurisdiction in the justice; the time for pleading to the jurisdic-
tion being before imparlance. In the case of a certiorari it was
otherwise, but on appeal the proceedings were de novo in the
Common Pleas.

Addison contra said that the interest was as much a part of
the judgment as the principal; and that as the transcript was the
foundation of all the proceedings in the Common Pleas, if at
any time the court discovered the justice's want of jurisdiction,
it was enough.

TiLGHMAN C. J. The jurisdiction of the justice is founded
on the act of Assembh'; and having exceeded that jurisdiction,
the judgment is erroneous. On the appeal every objection on
the law or the merits was open to the appellant; and it appear-
ing to the Common Pleas on the face of the record that the
judgment of the justice was erroneous, it was their duty to ar-
rest the judgment, although this matter was not pleaded.

Yeates J. and Smith J. concurred.

Brackenridge J. concurred with great reluctance. He
•oaid his mind was not perfectly satisfied that it was not the de-
fendant's duty to plead to the jurisdiction, either before the jus-
tice or in the Common Picas.

OF PENNSYLVANIA. , 221

1807.

^6 Scott administrator of Pa t t e r s o n against Rams a y . Pittsburg,

■a Friday,

Mo' , Septembei

iTo In Error. 18tL.

T N this cause, which was brought up from the Common Pleas Debts due
-*- oi IVashingtoii conwiy hy writ of error, u case was stated gj ^^^5^^*^ '
for the opinion of the court, which was in substance as follows: take rank

ow . » 1- 1 • 1 r 1 accordincr

jofin Fattersoti dKci intestate, possessed or personal pro-^,, tl,j.ij. "
pert)', and seised in fee of real estate. At the time of his death 1"^''ty at
several persons had obtained judgments against him before jus- \^\^ death.

ticts of the peace. After his death several creditors obtained Ju^ls'iients

, .,.,.. 1 1 1 • I obtained bc-

judgments agamst his administrator on debts by simple ton- f^i-g ^ jus-
tract. The personal estate being insufficient, the real estate was^'ce of the
sold by order of the Orphan's Court, and after the sale, some of fijej ;„ t]^^
the judgments ol)tained before justices of the peace were filed Common
in the Court of Common Picas, and others were not filed. The niadc knou u
questions for this court were two: ^? tlicadmi-

1. Whether the simpK- contract creditors (of whom the dc- must be
fendant in error was one) who obtained iudement against the P-"*^ /"■" ''«'''
admmistrator, were to be considered in any respect as judgment mcnts in

creditors of the intestate, and as such entitled to any preference courts oi
• , . record.

m the paym'.-nts to be made by the administrator out of the per-
sonal assets, or the proceeds of the real estate.

2. Whether the creditors who obtained judgment before jus-
tices of peace in the intestate's life, were to be considered as
judgment creditors within the 14th section of the act of 19th
April 1794; and whether any distinction was to be made be-
tween those whose judgments were filed, and those whose judg-
ments were not filed, in the office of the Common Pleas.

Addison for the plaintiff in error.

Campbell for the defendant in error.

Tilgh:sian C. J. delivered the court's opinion.

The first question has been determined by this court in the
case of Woolcrin(r\, The executors of Stewart. ( Deremher icrvn
1799.J It was there decided on argument and full considera-
tion, that the order of payment was to be according to the nature

222 CAbKS IN lllE SUPREISIK LOUR I

jgQ., ot the debt at the time of the testator's decease; and conse-

qiunth- a simple contract creditor obtained no preference by

Scott , . . . , . ,

oDtaming judgment agauTist the executors.

Ramsay. I' ^^^s been contended on the second point, that the tern>
jud^-?>ienti-^ m the act of Assembly 19th April 1794 is to be
restrained to judgments in a court of record. But it appears to
the court that the meaning of the word and the intent of the
legislature both call for a more liberal construction. In the same
session an act was passed by which the jurisdiction of justices
of the peace was extended to twenty pounds, and their judg-
ments, when recorded in the office of the prothonotary of the
Court of Common Pleas, were " to have the same effect as judg-
"•' ments obtained in the Court of Common Pleas." Of course
they become a lien on lands; and it Avould be most extraordi-
nary if the legislature could intend to make them a lien on
lands, and yet be of no consideration with respect to personal
assets. Wc are therefore of opinion that these judgments when
filed in the prothonotary's office, or when made known to the
administrator before he has paid away the estate, are to be on
a footing with judgments in courts of record. But as great
inconvenience might ensue if administrators were obliged at
their peril to take notice of such judgments, the court desire it
to be understood, that they give no opinion whether the admi-
nistrator would be guilty of a devastavit if he paid the estate to
creditors of an inferior nature, before he received notice of
judgments rendered by justices of the peace, and not filed.

— 6b 1*

is ,198
3, 282

Friday, bUORTZ Ggamst QuiGLEY. 10 «

Sepiembcr ^3 450

IN JliRROR. ^.j 5U'2

A bill of np'HIS cause came before the court on a writ of error to the
does'iiot'ne Common Pleas o( Craxvford county. A motion was made

to the opi- to the Common Pleas on behalf of Shortz the defendant below.
Court in re- '^ °P^'^ ^ judgment entered iigainsthim by ^ligley^ on a bond
■ oivinj^or with warrant dated 4th December 1800, conditioned for pay-
"eitimoi?/ ^^-^"''^ °^ '33 dollars :i:i cents on the 15th October 1801. The

upon a mo- judgment was entered as oi October terin 1803.

tion for sum- /-»,• •• ,1 -i -^i

■•aarv r-ii-f. ^" ^"^^ motion it appeared by evidence given to the court

below, that by articles of agreement dated 14th August 1800,.

OF PENNSYLVANIA. 225

'l^nghy contracted to sell to Shortz \\ tract of land for which he I80r.
was to give him a good deed, conveying the land free from all r~~7
incumbrances; and Shortz was to give a mortgage for the un- x-.
paid part of the purchase money. Shortz having pa-id part of the Qvigi.t\.
purchase money, a second agreement was made on the 4th De-
cember 1800, by which, after reciting that Shortz had paid part
and given bonds for the residue of the purchase money, ^lig- '

leij engaged to convey by good and sufficient deed, clear of in-
cumbrance, by the 15th October 1801; in default thereof he was
to refund the money he had received, and the bonds of Shortz,
upon one of which the judgment in quJLStion was entered, were
to be void. §liiig-lci/ did not convey by the 1 5th October 1 801 ; but
on the 23d March 1803, he procured at his own expense a pa-
tent to be issued to Shortz, and on the 27t)i July 1803 he exe-
cuted a release to him. The patent and release were tenderetl to
Shortz who refused to accej)! them, although he was in posses-
sion of the land, and remained so at the time of the motion.

After this evidence had been given to the court, the counsel
o{ Shortz offered to prove that .^n^g-/ci/\s- title was founded on
an actual settlement of the land undc r the act of 3d Jjjril 1 702;
and that the settlement, improvement, and residence, not having
!)een completed according to that act, his title M'as defective,
notwithstanding the issuing of the patent. The court refused tn
liear this evidence, or to open the judgment; on which the
counsel of .S'/iC'r/2 tendered a bill of exceptions, to whidi t^i'.
court affixed their seals.

A. W. Foster, and S. B. Foster for the plaintif!" in error, eon-
tended that on a motion to open a judgment, the court was bound
to receive the same evidence that would be competent upon a
trial by jury; and that lor any error in opinion in receiving or
rejecting testimony uj)on such a motion, a I)ill of exceptions
might be tendered. In this case the plaintiflin error had no other
remedy for an obvious injury. There was nothing in the statute
against it, and although the motion was t{) the discretion of the
Court below, it was to a sound discretion influenced and go-
verned by the rules of law. The groimd of the motion was this:
that the articles of agrcenunt executed by •^il^^lcij on the 4.tli
December 1800, were in fact a part of the condition of the bond
executed bv Shortz on the same dav. That bv those articles the
bond was void upon an event v.hich had occurred smce thr
il'itf', and which the parties originallv acjecd r.hould have that

224 CASES IN THE SUPREME COURT

^807. effect if it did occur, namely, if a certain time elapsed before-

Shoutz ^''S'^cy made Shortz a good title. Sfiortz wished to shew that
V. ^jiglcy never had made such a title, and never could make it,

gi iGLEi . notwithstanding the patent; that is, he wanted to shew the true
meaning of the condition, which under existing circumstances,
avoided the bond; and of course proved that the judgment was
erroneous. 1 Esp. Digest, 248. 345. The evidence, though pa-
rol, was perfectly competent by all the decisions in Pennsylva-
nia. Field for the use of Oxley v. BiJdle. (a) The patent was
merely presumptive evidence of title.

Bahhvin for defendant in error, said that it was an attempt
on the part oi Shortz to keep the land without paying for it; in-
asmuch as a claim adverse to that of these parties was never
heard of; so that the plaintiff in error had verv little equity.
But at all events, the case presented by the bill of exceptions was
out of the question; for a bill was never before thought of being
tendered for refusing to hear evidence on a motion to the court.
Lord Coke says that the exception extends " not only to all
" pleas dilatory and peremptory &c. to prayers to be received,
" oyer of any record or deed, and the like, but to all challenges
" of any jurors, and any material evidence given to any jury^
" which by the court is overruled." 2 Inst. 427. But when the
matterwas proposed to the court alone, they might hear what evi-
dence they pleased. There would otherwise be no end to delay.
As to the judgment itself, there was no error in it, it was entered
under a valid power, and not until the title had been tendered.

TiLGHMAN C. J. after stating the case, proceeded as follows:
It is first to be considered whether there is any error in the
entering the judgment. It appears there is not. It was regularly
entered in pursuance of a warrant of attorney. The motion to
open the judgment was an appeal to the court to exercise a
summary jurisdiction on principles of equity. In hearing these
motions, courts are not tied down to those strict rules of evi-
dence which govern them in trials by jury; because it is pre-
sumed that their knowledge of the law prevents their being
carried away by the weight of testimony not strictly legal.
I have never heard it supposed that a bill of exceptions lies to
the court's opinion, in receiving or rejecting testimony upon
motions for summary relief. The statute of 13 Ed. 1. on which

<'J^ 2 Daii. in

OF PENNSYLVANIA. 225

bills of exceptions are founded, has not been construed to ex» ISOT.
tend to such cases. If it did, the delay of justice would be (^j^Q^.f^
infinite. Every motion however trifling that was ir.ade in the ^,.
course of a suit, would be the subject of a writ of error. I con- QuiGi-iiY.
sider the point as too well settled to need discussion.

The strength of Shortz's case consists in this; that by the
agreement of 4th December 1800, the bond on which judgment
was entered in this case, was to be considered as void, unless
^ligley conveyed the land by 15th October 1801. Although
this is introduced into the record, yet being a distinct paper
from the bond on which judgment was entered, this Court at
the same time that they consider it, must consider a number of
other circumstances, particularly that Shortz entered on the
land, and still holds it. I am by no means satisfied that on a writ
of error we are at liberty to enter into those equitable circum-
stances, which might induce the Court of Common Picas to
give an opinioQ one way or the other. But I do not think it
necessary to express any opinion on that point, and I desire it
be understood that I do not. Supposing for argument's sake,
that we have a right to decide on the whole merits as they
appear on the record, I see no reason for reversing the judg-
ment, because it appears that Shortz if injured, is not without
remedy. He may have his action on some of the writings
which have passed between him and ^dglcy^ and recover'
such damages as a jury shall think he has sustained. Tiiis
being the case, and the real equity of the matter appearing very
doubtful on the record, I am of opinion that thci c is no cause
for reversing the judgment of the court below.

Yeates J. I have no hesitation in saying, that if I had been
on the bench of the Common Pleas of Crawford count}-, 1
would have given mv voice that the defendant below should
have had a hearing of liis cause before a jury, iijion the facts
disclosed to us on this argument. They would be the legal and
and constitutional judges to ascertain whether any suljstantial
damages had ijeen sustained by reason of tiie ])laintift's not
having niadc the title by the 15th October 1801. IJut even as
matters now stand, Shortz has a full and complete remedy in
an action founded on the contract of the 4th December 1800, il
he has l)een in li nth injured by the delay of 9^ngleif. Where
'^ompensation for the delav mav he made in damages, a rouri

Vol. I. -3 F

J26 CASES IN THE SUPREME COURl*

1807. ^f equity would not on tliat ground alone decree it to be a for-

e ^ leiturc. A ric-id adherence to the letter of the second atrree-

Shoktz ... . ,

.J, mcnt, in saying that it annuls the first, and that !^iigleij should

Ql'iglky. repay the six hundred dollars and interest, and cancel the other
bonds, would be the exaction of the pound of flesh by a Shy-
lock^ and the enforcing of a hard and unconscientious bargain,
at which the feelings of every honest mind would revolt.
Shortz's counsel profess not to go so far.

But these facts are disclosed to us in the bill of exceptions
which comes up with the writ of error; and this necessarily
introduces the preliminary question, whether such bill could
legally be taken in the present instance. That a writ of error
would lie on the final judgment of an inferior jurisdiction,
there can be no doubt; but that for every order of the court,
whether before or after judgment, a bill of exceptions might be
tendered, I utterly deny. It is most generally taken under the
statute of Westm. 2. on the trial of an issue by a jury; but it will
not lie upon every opinion of the court delivered in the pi-ogrcss
of the cause, as in discharging on common bail, or directing
the (jiiantum of bail. Suppose the Court of Common Pleas
should order on the trial of an action, under circumstances ol
the most peculiar hai'dship and seeming injustice, or postpone
it under the like circumstances, should refuse to discharge a
freeholder from his arrest, or to set aside an execution, it can-
not be pretended that these and such like interlocutory deci-
sions would be good gi'ounds for tendering bills of exceptions-
The law confides the exclusive order and direction in such
cases to the legal discretion and judgment of the court, having
jurisdiction over the subject matter; and courts of error will
not deem themselves at liberty to review the same. I remember
one instance wherein the propriety of dissolving a foreign
attachment and of sustaining a domestic attachment in Cum-
berland county was attempted to be questioned in the Supreme
Court on a writ of error, but was refused in bank, though the
lacts had been stated bv consent on the record.

If the law does not support the bill of exceptions, the ground
of complaint of the plaintiff in error fails him; and there being
no error in the record, properly so called, the judgment must
of course be affirmed.

Smith J. and Brackenridge J. concurred with the Chief
Justice.

Judgment affirmed.

OF PENNSYL\ AN'IA 227

lb 227

66 215 1807.

2s r397

j|sf233 • Fitulmrg,

laV,^ Lessee of John M'Rhea ag-ainst Vluume-r. Friday,

2w394 September

2w395

18th.

7w243 'TT^HIS was an appeal from the decision of Tcates J. at a Cir- jj- .^ '^(^^xey

7 ^if ■ C"it Court for Beaver coitnty in September 1806. l>as been du-

OOP , Iv niudc un-

It was an ejectment for a tract of land lying north &c. of the 'n^^, \^^^\ ^u.

Ohio, taken up under the act of 3d April 1792. The warrant th'>nty, and

1 , . .— , , , 1 , -7 r r 1 1 , the land

to the plamtift was dated the 14.th Aprd 1792, lor tour hundred surveyed re-

acrcs of land "■ adioinins; land this day ir'"ir>ted to James^^^^^'^^ ^V^^
•^ ° . ', *' , to purclia-

'■'' M'Rheay This warrant, together wrth twenty-one others, sevs, a wai--

the pronertvof the Population company, was delivered by their '■•'»"^ coming

' ' ' ' T I V q/terwards to

agent yohn Hoge to Jonathan Leet deputy surveyor, who en- the hands of
tered them in his official book. The tract of country on which ^''^ dei)uty
these warrants fell, had been surveyed by authority ol the state piied by him
in 1785 or 1786, and divided into tracts for the purpose of be-t»tlie suncy
ing sold to satisfy depreciation certificates; but a sale ol all the made, with-

lands not havinc: been made, the land unsold remained open to °"V""",'"'^'

^ ' r 1 1 ^"" maikinjj

purchasers under the act of 3d April 1792. Jonathan Leet had Uic lines

acted as an assistant to his brother Daniel in making these sur-'"lf^^'; ""^-
veys, and had retraced the lines in 1793. After receiving the ing the 9th
twenty two warrants of the Population company, he went on the j*,*-*^^""! "/j-
ground, and ran one line to ascertain the variation. That being >sih April
fixed, he attaciied the leading warrant to the ground it called ^''^''
for, then James M' Rhea's warrant, and then JohnlWRluci's ad-
joining-, according to the call of the several warrants. At that
time there were no settlers on the land.

It was objected at the trial, that llie surve)- of the land in
question was void under the act of 8lh April 1785, 2 St. Laxvs
.311, the 9lh section of which enacts that " Every survey hcre-
" after to be returned into the land office of this state, upon ans
" warrant which shall be issued after the passing of this act, .shall
" be made by actual going upon and measuring of tiie land, and
" marking the lines to be returned upon such warrant, aj'tcr tiu-
" warrant authorizing sucli survey shall come to tiu; hands ol
" the dcput) surveyor to whom the same shall be dincted; and
'• every survey made theretofore shall be accounted clandestine^
" and shall be void and of no effect whatever." Ykates J. was
of opinion that under the circumstances of the case the survey
was not void J l)Ut the jury found a verdict for the defendant. A
motion wn*? thereupon made for a new trial, which was awarded

. J-JH CASES IN THE SUJIMIEME COLKT

1807. ^y ^'is Honour; and it was from this decision that the detendant
Tr^ appealed. The (jucstion therefore for this court was whether

^._ the survey was void, it liaving been made before the warrant
Plvmmer. came to the hands of the deputy surveyor.

A. IV. Foster for the defendant argued that a warrant of the
kind in question, not being descriptive of the land, could not
attach until survey, and that there never had been a survey in
this case; or if the survey in 1 785 were relied upon, it was void,
as having been made before this warrant came to the hands of
the deputy surveyor. The only valid sui-vey known to the law
since the act of 1785 is made by going upon and measuring the
land after the warrant has come to hand. The deputy surveyor
in this case was not on or near the ground after he received the
warrant; and he thus committed a double breach of duty, by
disregarding the plain direction of the law, as well as the expli-
cit order of the surveyor general of the 19th January 1793,
not to make return of any survey unless actually made on the
ground. The objects of this section were two, to prevent
fraud, and to give notice to persons desirous of improving. To
gain the first object, the law rejects and disavows the applica-
tion of a survey to any warrant whatever, if the survey was
made before that warrant came to hand ; and whether it was
made with or without reference to a warrant to be subsequently
issued is immaterial. To shew how the second object will be
defeated by sustaining this survey, it is only necessary to state,,
that a settler would discover hy the age of the marks on the
gi-ound that they could not possiblv apply to a warrant under
tbe act of 1 792, and that therefore he would be secure against
any title accruing under that act, as was the fact in the present
case.

Ross for the plaintiff contended that the only object of a sur-
vey was to designate the land which was appropriated by a cer-
tain warrant; and if the lines of a tract were once run by pub-
lic authority, and a warrant subsequently applied to that survey,
jt was impossible to say there was a violation of the law. There
could be nothing clandestine in such a proceeding, because the
survey was publicly authorized; there could be no fraud upon
third persons, because the first warrant that came to hand
\vould have the benefit of tlie survey; and the marks could not

OF PENNSYLVANIA. 229

by possibility mislead a settler of common sense, because the 1807.
deput)' surveyor and not the trees should be his guide. A refe- jvI'Rhev
rence to the officer would settle the question, whether or no the v.
lands were appropriated. This is a case entirely out of the spi-PiuMMER
rit of the law. It would surely be absurd, if a vacant tract were
surrounded by three surveys, to argue that a surveyor must
re-measure and mark the lines that were common to the vacant
tract; yet this is the letter of the law; it is equally so to argue
that he must i-epeat an entire survey once regularly made by
public authority. But it is indeed questionable whether the act
of 1785 applies at all to surveys under the act of 1792; on
the contrary the general provisions of the law are clearly con-
fined to the lands particularly mentioned therein, and for which
the legislature contemplated so great a press of applications
that it became necessary to secure each person his fair priority
by the clause in question.

TiLGHMAN C. J. after stating the facts, proceeded as follows.
It was objected at the trial that the survey of the land in ques-
tion was void, having been made before the warrant came to
the hands of the deputy surveyor. Judge Tcates was of opinion
that under the circumstances of this case the survey was not
void; and that is the point now to l)e decided.

As it is admitted that the commonwealth received the full
price of the land, that there has been at some time an accurate
survey marked on the ground, and that when the appropriation
was made for the plaintiff, there was no settler on the land,
nothing but very clear and positive law ought to deprive the
jjlaintiffof his purchase.

I'hc objection to the survey is founded on the 9th section of
the act of 8lh yf/;/// 1785. I shall give no opinion at this time
whether the provision of this section extends to surveys m;idc
under the act of 3d Ajiril 1792. I imdcrstand that in the case
of Wri_^ht*s lessee v. Wells tried at Nisi Priits at Wasliin^'ton be-
fore the late Chief Justice Jlf'-Kcan and Judge Tratrs^ it was
held that it was restrained to lands then lately purchased by the
commonwealth from the Indians, and intended to be sold in a
short time. But supposing that it extended to all surveys on
warrants issued after the passing of that act, thouj;h the present
case may fall within the 7i>orc/.s, it is evident that it is not within
the spirit and intention of the act. The intent was to prevent

^.,0 CASES IN THE SUPREME COUR'i

180r. i'll persons, surveyors as well ns others, from making sm-veys
M'Rhea ^vithout authority, and to declare all surveys so made, absolute-
V. ly void. Now the surveys of the depreciation lands were made
't.iMMEu. under the authority of the state. Let us compare this case with
others that have been decided, and concerning which there is
no question. Suppose a surveyor receives a warrant, and the
land to be surveyed on it is bounded on three sides by the
lines of other tracts which he has surveyed before. It is not
contended that he is obliged to run those three lines over again ;
and why? Because it would be useless trouble, those lines hav-
ing been run and marked by /eg-al authority before; and vet he
does not comply with the words of the act, which require him
to run the lines and mark them, after the warrant comes to his
hand. Here then is an implied exception from the words, in or-
der to comply with the spirit of the act. Nothing more is to be
done in the case before us. What mischief can arise from this
construction? It is said the actual settlers will be deceived, be-
cause they can fmd no marks made since 3d April 1792. But
if they take due pains they cannot be deceived. It is in vain
lor any man to seek for proper information by hunting for
marks on the ground, without applying to the deputy surveyor,
who is obliged to keep books for the purpose of information.
The marks on the ground give no satisfaction, for they may
have been made by unauthorized persons. But the surveyor's
books combined with the marks on the ground, will make eve-
ry thing clear. The entries in the books of the surveyor would
have shewn that this lafid had been surveyed; and if upon com-
paring the marks on the ground with the surveyor's entiy, a
difficulty had occurred because the marks appeared older than
the entry, this would have been at once explained by the sur-
veyor on application to him. Every prudent and honest man
would naturally make such an application, before he expended
his time labour and money in making a settlement. If in any
case it has happened that a settler has in fact been deceived,
even through his own inadvertency, I can only express my hope
that the warrantee will take that circumstance into considera-
tion, and let him have a reasonable portion of the land on
moderate terms. I have no hesitation in saying that in my
opinion every honest conscientious man ought so to do. But at
present we are called upon to decide the law.

OF PENxXSYLVANIA. 23 1

For the reasons I have given I see no cause to differ from the 1 807".
opinion delivered by Judge Teates. I am therefore of opinion 7[iRHr7
that the award of a new trial be affirmed. t.

Pr.b'AfMF}; .

Smith J. concurred.

Brackenridge J. I cannot assent to the opinion delivered
by the Chief Justice. The act of 1785 I have no doubt extends
to this case; and although I will not say that an omission to go
on the gi-ound and mark the lines avoids the survey, as this part
of the section may be considered directory^ yet if the survey is
not made after the warrant comes to the hands of the deput}-
surveyor, it is absolutely void; for that part of the section is posi-
tive^ and not directory. In this case the survey was not made
after the wan-ant was delivered to the deputy surveyor.

- Lessee of P A T T £ R s o N against Cochran. j^uu-bur ■•,

Friday,

■231 ^ I ''HIS was an ejectment for lands lying north and west of the Septcmbci

575 I - o 1^ Bill.

i<« -■- Ohio &c. It was tried before Tcatcs J. at a Circuit Court,r.,

«w - „ - r- / 1 . <- ^''^ want 11

wj tor Beaver \\\ September 1806, when the following facts appear- :iii actual

ed in evidence. The plaintiff's title was founded on a warrant"'",'-'"'^'"

, , ., ... wittiiu two

dated the 14th April 1792, which was entered in the deputy years from

surveyor's office on tiie 10th fxinc 1793, and a survey J^'^adej|;,^,';^^j'ijf^j|;.
thereon the 6th April 1795. In the spring of 1797, the defend- Iiuliuns, can
ant entered on the land, made an improvement, and I'csided "'^\;'^,jj'^[J.'''
there at the time of trial. In the summer of 1797 the de-titicofa
fendant received warning to leave the land from Ennion ^^Z- J[,!,j[.J."\^^
Hams the agent of the Population company, to whom in fact it^'ct of Aim.)
belonged; but he refused to give up the possession, and told ^pcVson'wL
IVillinms that " he held in opposition to the Population compa- has taken
" ny, and meant so to hold." The court was of opinion that al- p™"J;l.i,',,
though the plnintiff had made no actual setdement, yet as hcf^I'diinii.
was prevented therefrom by hostilities, and was entitled to two^.e c\pi*r:'i^
years from die pacification by (ieneral ^/avm'.v treaty for inak-tif>n of tlu-.
ing it, a refusal by the defendant during that period to deliver i,\^,",^[!n,",i

up the possession, estopped him iVoni urging a want of settle-'"' ''«^l'vcr i'.

up to tlic
. , warrantee.

A hare rcfnsarl is onoii(,'li to estop tl,c possessor, wiUioul the tlircat or iisc of actual fnrc"

232 OASES IN THE SUPREME COURT

180r. nicnt against the plaintiff's title. The jury however found for

Lessee ^^^ defendant. A new trial was then awarded, and the defeml-

of ant appealed from the decision to this court.
Patteu-

^' A. W. Foster for the defendant, said that he took the law to

C'orHRAN.t'^ settled that there could be no title without an actual settle-
ment within two years from the pacification by General Wayne's
treaty. The act of assembly of 3d April 1792, recognises no
prevention but by force of arms of the enemies of the United
States; and in this case the defendant merely refused to deliver
up the part he occupied, without any displaj^ or threat of re-
sistance. To prevent the defendant from alleging this matter, it
should at least be shewn that he had held the plaintiff out by
force; it might then be a different case. If A. is bound in a bond
conditioned to enfeoff J. S. and the obligee disseises A. this is
no plea to the bond, because he might have entered and made
the feoffment, and the obligor is bound to do all he can; but it
would have been a good plea, that the obligee held him out
by forccy so that he could not enter. Lancashire v. Killing-
■worth. (a) Co. Lift. 206. b.

Woods for the plaintiff, said that t]>e defendant had entered du-
ring the two years, and had declared an intention to hold posses-
sion; which was all that was necessary to bring it within Hazard'' s
lessee v. Loxvrij, {h) The plaintiff had a right to settle on any
part of the land, and the law does not demand of any man that
he shall actually encounter danger in order to enforce his right,
but always justifies his recourse to an action. The defendant
has wrongfully prevented the settlement, and therefore he can-
not object the want of it.

TiLGHMAN C. J. after stating the facts, proceeded as fol-
lows. The defendant relies on the defect in the plaintiff's title,
a settlement not having been made in pursuance of the act of
.'Jd April 1792. It was decided by this court on the motion for
a mandamus to TcJich Coxe^ (c) and on the trial of the issue at
Sunbury at the special court directed to be held by an act of
Assembly, (<^/) that if a warmntee was prevented by war from

(«) 1 Ld. May. 686 (f) 4 Dall. iro.

(4^ Jrfe t. 166. {<() 4 Ball 2.17.

OF PENNSYLVANIA. 23 S

making a settlement in two years from the date of the warrant, 1807.
his title was not extinguished, but he should be allowed a rea- ~Y^ssee
sonable time for making such settlement after the prevention by of
war ceased. And it was determined by this court at this place Patter-
last September term, in the case of Hazard'' s lessee v. Loivn/, ^^'
that such reasonable time was not less than two years from the Cociirav.
pacification by General JVayne^s treaty with the Indians. Now
the plaintiff was prevented from making a settlement within two
years from the pacification by Waijne^s treaty, by the wrongful
act of the defendant, who refused to give up the land which he
had improperly entered on. I say he was hindered, becaust-
although the defendant did not occupy the whole land, yet hav-
ing said that he held and meant to hold against the Population
company, the probability was that if the plaintift'had attempted
to take possession, it might have been attended with personal
injur}^ The law compels no man to run risks of this kind.
Having demanded possession, which the defendant refused to
deliver, the plaintiffs most prudent line of conduct was that
which he has pursued, to appeal to the laws of his country for
redress. The defendant having thus hindered the plaintiff from
making a setdemcnt, shall not be permitted to defend himself
against the plaintift' because a settlement has not been made.
There are many cases in which it has been held contrary to
equity and good conscience, and destructive of morality, to
permit defendants in ejectment to take advantage of a defect in
the plaintiff's title. A man who has received land under a lease,
is not permitted to controvert the title of his lessor. A mort-
gagee omits to record his mortgage in six months; although the
mortgage is declared by act of Assembly to be of no validity,
yet it has been decided that a person who purchases from the
mortgagor with notice of the mortgage, shall hold the land sub-
ject to the mortgage. The present case is mucli stronger than
cither of them. It would be an outrage on society, a violation
of the first principles of sound policy and good government, to
permit a wrong-doer thus to derive benefit from his wrongful
conduct. Inflced the verv question in dispute is not new in tliis
court. In the case of Nriq-/unan v. Staines^ tried at Nisi Priii':
before Judges Tcates and Smithy and in the case of the viandu-
mus^ and in that of Haz.ard\s lessee v. Lowrij which I have men
tioned before, the court expressed their opinion that a warran
tec whr> had not mn'li- :» Ff'Ttlrrment, might recover in ejectmcn'^
Vol. T. ^r.

234 C ASKS IN THE SUPREME COURT

1 807. against a person who had entered on the land and settled during
"*T~T~~ the time allowed bv law for the warrantee to make his settle-

X^CSSCC •'

of ment. I am therefore of opinion that Judge Tcatcs was right in
Patter- telling the jury that upon the evidence given in this case, the
*°^ plaintilf was entitled to recover, and that he was right in order-
Coc HK AX. i"S''^ne^^ trial.

Smith J. concurred.

Brackenridge J. dissented from the opinion of the court,
because he was of opinion that whether the plaintiff was or was
not prevented by the defendant from making a settlement, was
a fact for the consideration of the jury. He admitted at the
same time that the court might order a new trial, where the
jury had found clearly against the evidence; but as he was not
satisfied that they had done so in the present case, he was
against the new trial.

DECEMBER TERM 1807.

1808.
Saturday, S. aild R. StERRETT ExCCUtOrS of W. SxERRETi

^'""''■-'2- against Bull, and others. ll''l

If an origi- ^^'4()h

a shop book In Error. *' *"8

&.C is in the

handwiiUns rj-iHIS was a writ of error to the Common Pleas of Chester

oi 2L clerk I

it must be -*" county. It was an action brought by the defendants in

proved by error, (the plaintiffs below) who were fumacemasters, to re-

iiim bcr re u • r

it can be ad- cover the price of some pig iron sold to Sterrett, who was

oSence ^ forgemaster. Upon the trial of the cause in August 1806, the
unless he is plaintiffs, to prove the sale and delivery of the iron, offered in
^f^jJ;."''J^"g^^ evidence a book which Smithy one of the plaintiffs, had pre-
of the court, viously swom was their book of original entries^ kept principally
ney\^°Roi's ^^ ^^^ " °^ ^^^^^ clerks, although some of the entries were by him ;
1 Da/l.23ii. but the entries bearing upon this cause zvere 7nade hij a clerk.
A receipt
lor goods

written in a book of original entries by the clerk, and signed by the person to whom the
goods arc- delivered, must be proved in the same manner as other receipts; and a cus
torn lo treat it a.s an original entry is bad.

OF PENNSYLVANIA. 035

This evidence was objected to, upon the ground that tlic cntritis j soa.
should be proved bv the clerk himself: but the court admitted;,"
the evidence, and die President sealed a bill of exceptions. -^,

After the book was admitted, it appeared that what was Bclt.
called an entr}-, was an agreement written in the book, in the
following words: " We the subscribers do promise to deliver
'' Mr. William S te rr ett yxxmor^ the number of tons of pigs to
" our respective names annexed;" under which was a schedule
presenting different columns, wherein were written the day of
the month, the quantity of pig iron delivered, and the signa-
tures of certain persons, said to be carters, or their marks with
their names filled in by the clerk. A witness was then called,
who swore that he kept books as clerk at two furnaces, about a
year and a half at one, and a few weeks at the other, and never
at any furnace besides; that in these places the customary mode
of charging pig iron delivered, was the one pursued in this
case; receipts for the pigs were taken from the carters of the
forgemasters, who hauled the pigs away; to whom at the same
time an invoice was given expressing the same quantity with
the receipt. There was, however, no proof that the signatures
in this case were made by the carters of the forgemasters, or
by their authority. The defendant's counsel again objected to
this evidence, since on examination it appeared to be a common
receipt, and not an entry properly so called, and since the testi-
mony fell far short of establishing an usage for this kind of
entry. The President was opposed to the testimony; but the
associate judges admitted it, and scaled a second bill of excep-
tions. The jurv found for the plaintiffs.

The bills of exceptions were now sent up with the record,
md the admissibility of the evidence argued before this court.

7'. Ross for the plaintiffs In error, contended that as to the
matter of exception in the first bill, it stood here precisely up-
on the same footing as in J:iniflam/. The entries having been
made by the clerk of the defendants in error, he should have
been produced ; or upon proof that lie was dead or w;is not with-
in the power of the court, e\ idcnce that the entries were in his
handwriting should have been demanded as the next best legal
evidence to be procured. 3. lil. Coinm. 368. That as to the mat-
t'T ol the secondb'iW, it was obvious that the writings referred to

23<i CASES IN THE SUPREME COURT

1 808. ^vere common receipts, purporting to be executed by carters to
71 whom pier iron was delivered; and therefore to charge the plain-

^, tifhs m error, it was essential in the hrst place to prove the au-

Blll. thority of the carters, and then to prove their signatures. To
change the nature of evidence, by calling tliis receipt book a book
of original entries, was certainly a new attempt; and it was out
of the question to support such an attempt by a usage so imper-
fectly proved, and which would still be a doubtful usage in point
of law after it should be proved completel)%

Trazer for the defendants in error, answered, y^r*;, that the
strict rules of law with regard to evidence, ought not to be
extended to mercantile transactions; and he cited the case oi
Riche and Richards v. Broadjield^ (a) in which an account sales
of an adventure shipped to Ncw-Tork^ signed by the factor, was
admitted in evidence to prove a loss on the goods, upon the
mere proof of the factor's handwriting. That the rule which
subsisted in England upon the subject of shop books or books
of original entries, had been held, from our peculiar situation,
to be inapplicable in this state; for, in the case of Poidteney et al.
V. Ross, {b) it was ruled by Shippen, President, that *' although
" in England the shop book of a tradesman is not evidence of a
" debt, without the assistant oath of the clerk who made the en-
" try, yet here, from the necessity of the case, as business is
*' often carried on by the principal, and many of our tradesmen
" do not keep clerks, the book proved by the oath of the plain-
" tiff himself has always been admitted." In the second place,
the object of the evidence mentioned in the second bill was to
prove the deliverv of the pig iron to the plaintiffs in error; and
inasmuch as a mere charge of delivery made by the defendants
in error in their books, would have been evidence of the fact
imder the oath of Smith, can it be any the less so because the
precaution has been taken of making the carters sign a receipt?
This is stronger than the case of Price v. The Earl of Tor-
ring-fon, (r) in which the signature of the plaintiff's own dray-
man to an account of beer delivered was admitted in evidence
to charge the defendant. Esp. 141. Bull. N. P. 282. Jiut this.

(a) 1 JJail. 16. ^c) 1 Sai.f-.SB^

'h) 1 Dall. 2::8.

OF PENNSYLVANIA.

237

moreover, was the customary mode of making entries at iron j gos.
works; and they are therefore to be proved as original entries of";
any other kind. It is the custom for forgemasters to send t/ieir '^^^^^^-'^'^
carters to the fumacemasters; and the writing taken together Bui.r
amounts to a charge of the delivery of pig iron to the forge-
master.

TiLGHMAN C. J. delivered the opinion of the court.

This case is brought before the court on a writ of error to the
Court of Common Pleas of Chester county, and is founded on
two bills of exceptions taken on the trial.

Although there are two bills of exceptions, yet the subject of
ihem is the same, viz. the admissibility of the plaintiff's book
in evidence. They present the matter under two different points
of view, and shall be considered separately.

The first exception, which is signed by the presiding judge,
was taken to the admission of the book after one of the plaintiffs
liad sworn " that it was their book of original entries, made
" principally by two clerks of the plaintiffs." It appears that if
the book can properly be called a book of entries, it is one of a
very uncommon kind; it does not contain entries of goods sold,
in the usual manner, but is in fact a book containing the receipts
of different carters for quantities of iron received by them to be
carried to different persons. There was no proof that these car-
ters were in the service of the plaintiffs; on the contrary, I un-
derstand that they were employed by the persons to whom the
iron was to be delivered. Those who could write signed their
names, but where they could not write they made their mark,
opposite to which the name was written by a clerk of the plain-
tiffs. Now if this is to be considered as a receipt^ there is no
reason why the handwriting or the making of the mark should
not be proved. But even if It could be considered as an entry
made by the clerk, he should be produced, or proof made that
he was dead or out of the power of the court. In consideration
of the mode of doing business in the infancy of the country,
when many people kept their own books^ it has been permitted
from the necessity of the case, to offer these books in evidence.
But when no such necessity exists, when the fact is that clerks
have been employed and the entries made by them^ there is no
cause for violating that vfhc prin^iplr-, tliot no man shall be ul-

238 CASLS IN THL SUPHEMK COURT

1 s(j<?. lowed to give testimony for liimself. The court are thcrciore
DiEKUKi r of op"''iori'> that as a book of original entries, under the circum-
V. stances of this case the evidence was improperly admitted.
Bull. AVhen the second exception, signed by the two associate

judges, and not by the president, was taken, the book was sup-
ported by the evidence of a witness who gave testimony, that to
the best of his knowledge this book was kept according to the
custom of irotimasters. We do not think that an\- such custom
was well proved. The Avitness had only been clerk a year and a
half at one furnace, and a few weeks at another. But even if it
had been better proved, the court are of opinion that it would
be going too far to give the force of law to a practice, which
would tend to charge the purchasers of iron with large sums of
money, for iron delivered to carters, who gave written receipts^
without cither proving that those carters were in the employ of
the purchasers, or that they signed the receipts in the books of
the seller. It ma}^ have been the custom to take receipts in the
manner these are taken; and it appears to be a very prudent
custom, if you add to it the precaution of making the carter
produce an order from the purchaser, before the iron is de-
livered; but it has not been the practice of courts of justice to
admit such receipts as evidence, without more corroborating
testimony than was offered in this case.

The opinion of the court is, that the evidence was improperly
admitted, and consequently the judgment of the Court of Com-
mon Picas must be reversed.

Judgment Reversed.

i'aifie u'av-

Same Causp:.

On tlic re- A I'" i l^K t^c reversal of the judgment in this cause, Frazei

yersal of ilie T\. moved the Court to award a venire Jacias de novo to the

«f'.-i\(r.vcr court below. The exercise of such a power by the court, he

court upon agaid^ would be attended by a saving of time and expense to the

.'cpticmTto parties, who in case of a general reversal of the judgment,

evidence, Avithout a venire de novo^ must resort to a new suit; and he
tiiis Court , , , i ^ r i .1

r.iav award a contended that the court as a court ot error possessed that

-rrnire facias authority, as was evident from cases both in England and the

United States. In Harwood v. Goodright^ {a) Error from the

{(t) Go-vp 89.

OF PENNSYLVANIA. 239

Coramou Pleas, Lord Mamfield said that the House of Lords igos.
had in two instances awarded the writ, and that the King's^^,^^^^^.^.^.
Bench as a court of error had the same jurisdiction; and after- x<.
wards in dehvering the opinion of the court page 91. he says BuLt>
if either side had moved for u venire facias de novo "•' this couri
" as a court of error could have granted it." So in Grant v.
Aatle^ (a) which was a writ cf error from the Common Pleas,
brought by the defendant below, the court said " There was no
*•' doubt but a ':;cnire de novo might be granted by a court of
" error; that it had been done by the House of Lords, and was
"not a new practice, (ITSl) for upon inquiry made by this
" court on a late case from Ire/and, a great many instances had
" been found;" and so a venire was awarded, and the record
sent back. In Davics v. Pearce et al. (^), a venire de novo was
awarded upon the reversal of a judgment, on a /;/// of excep-
tions. So in Bc7H V. Baker, (c)

In the Supreme Court of the United States this power has
beenexercisfd in one instance, and in another admitted though
not exercised, because the court were divided in opinion as to
the jurisdiction of the court below. This latter case was Binj^--
ham V. Cabot et al. (d) But in the former, Clarke v. Russcl^ (e)
there was a perfect verdict below for the plaintiff, a bill of ex-
ceptions tendered by defendant to the opinion of the court
upon a question of evidence, a writ of error sued out by defen-
dant, a reversal of the judgment in consequence of admitting
the evidence, and a venire facias de novo^ which is exactly thi-i
case.

Frazer also cited Trevor v. JVall^ (f) in which the venire
was refused; but there the proceedings originated in an in-
ferior court. 2 Bac. Ahr. Error. ;//. 2. 2 Cro. Jac. 206.
1 Show. 127. Cas: temp. Ilardxi'. CA. Salk. 403. Com. JJ/(f.
Pleader. 2 B. 20.*

J^os.s- relied on the case of Street v. /lopki/iso/i et al. (j^j,
rror in /?. /:'. in Lord Ifardiv'Hkc^.i time; in MJuch the court

(<i) iJoiifi. 708. (731 ). (f) 3 Datt. 4 1.5.

(A) 2D.isf K. 12 J. {J) 1 D. tr /;. I.) I

(«/) 3 Dall. 19. 42.
• Vid. note (fl) to Davie* v. Pierce, Q D. If J\. 126. wlicrc tlie repoi-tcf
I IK rl.'i«^p.l tl..- ri"' -: in \\]vi]\ fi mire facia* dc rox.t mny.bo ;;rantf(l

Bum.

210 CASES IN THE 8 U P RKME CO URT

1 808. say that they cannot award a venire dc novo^ because the action
Sterkett was not in the same court. He also adverted to its being a case
V. of the first impression in the Supreme Court; but he did not
press his argument upon either point.

Per CuRiAJi, We have no doubt that we have power to
award a venire facias dc novo. It tends to the despatch of
justice, as it prevents delay; and there can be no reason against
it but want of precedent in this court, for the cases cited
seem to shew full authority. The practice of the Supreme
Court of the United States^ although not binding upon us, will
always command great consideration.

Judgment that the record be
remitted with award of
Venire de novo.

"Tr240(

10si4Ul

It 459

Hazard against Israel. j«_^

^iaturday, ^

3 • r I ^HIS was an action of trespass brought against the defend-
In an action -1- ant, who was sheriff of the county of Philadelphia^ to re-
sheriff for cover damages for the misconduct of his officer in the execu-
the miscon- ^jon of ^fi. fa. It was tried before Brackenridge J. at Nisi
officer in the Prius in December 1807, when the jury found a verdict for the
execution of plaintiff, 750 dolls, damages. The defendant now moved for a
not ne'cessa- new trial on the grounds that the verdict was against law and
ry to shew a-gyijence, and the damages excessive,
warrant to ^ The facts as reported by Judge Brackenridge were as fol-

the officer; Jqws: Lewis as executor of Fuller broucrht a suit against the

this is ncces-

sai-y only in plaintiff and Bringhiirst as administrators with the will annexed

the case of a

bailiff; but in

this state

there are no bailiffs, their place beinpf supplied by deputies whose authority is sufficiently

shewn by proof of a (general privity with the sheriff.

The sheriff" is answerable for the misconduct of his deputy, whether he recognises and
adopts his acts oi- not.

A Jury may give exemplary damages against the sheriff for the misconduct of his
deputy.

Ifadeputy sheriff enters the house of an administrator to look for goods of the intestate,
and afterwards jjrocceds to levy upon the goods of the admini.strator from whom nothing is
d»ie, he is a trespasser ab ir.ltw-

OF PENNSYLVANIA. 241

*A Clarkson, in which judgment was obtained for a considerable \ 308.
sum, reserving the question of assets. Upon this judgment ■a.fi.Ja. Vr
issued for the debt, to be levied of the testator's goods, and seven v.
pounds ten shillings costs to be levied in like manner if goods Israkt..
were found otherwise dc bonis propriis of the administrators.
While the execution was in the hands ofSuter the deputy sherift',
he mentioned the circumstance to Mr. Reedtht attorney of the
administrators on record, who told him that the costs were paid
to the defendant; and the fact was, that before the execution
issued, Mr. Reed had requested the sheriff to charge the costs
to his private account, to which he assented. There was no pre-
tence that Clarksoti'a administrators had any of his goods in
their hands at the time of the execution or afterwards ; neverthe-
less Snter on the return day of the writ went between ten
and eleven o'clock at night to the plaintiff's house, and there
proceeded in a rude and insolent manner to levy upon the fur-
niture in the parlour to the amount of seven or eight hundred
dollars, and then asked for more property. Mr. Recd^ who was
called in, forbade Suter to levy, asked him to read the execution,
told him that the plaintiff was answerable for costs only, and tliat
thev were paid. Suter answered that he knew his duty as well as
Mr. /?eefi^,andthathe was levying for debt and costs; he then con-
tinued to make his inventory, and afterwards went away, but
without removing any of the goods. On the next morning In-
ifersoll moved the court to set aside the levy; and in the course
of the day the defendant wrote to the plaintiff that he rescinded
the levy, and then made the following return to the fi.J'a.: " No
" goods of Clnrkson whereon to levy &c. and for default thereof
•■' levied on divers goods Sec. o{ Ehenezcr Hazardiox the dama-
'* ges, which are since restored, as the amount of the said
" damages were previousl}' secured to me, and my bailiff
'' when the said levy was made was not informed llureof."

Condij for the defendant. 1. As to the act of Suter the offi-
cer. He was not a trespasser; he had a right to levy for the
costa^ for although the siieriff had security for them, they were
not paid; and if h(; was dissatisfied with the security, whatever
was its character, there was no legal impediment in tiie way of
his compelling the pavment of them bv Hnzrird.

He had moreover a right to enter for tlie pur])ose of looking

for the goods of Clarkson. It is in the possession of the admi*
Vol. I. v> H

2i2 CASES IN THE SUPREME COURT

1808. nistrator that such goods are to be souglit; and as this circum-
T, ' ^stance makes his entry hwvful, he must be made a trespasser, it

IlAZAUD •' ' II-,

V. at all, by subsequent acts. But there was no violence; he did not

Israel, remove or touch a single article of furniture; he merely put in a

claim to the goods for the sheriff, and then departed. It cannot

be that he was guilty of a trespass by ^•ai/it}(f that he made a levy,

without any thing further.

2. As to the liability of the sheriff. It was incumbent on the
plaintiff, in order to support this action, to shew the defendant's
warrant to Suter for executing this writ; which was not done-
The sheriff must answer for the acts of his bailiff; but the
particular warrant must be produced. No general privity be-
tween them, such as is shewn by the bailiff's bond, or by
his acting usually as such, will ansiver. Drake v. Sykes. («)

The defendant immediately rescinded the levy made hy Suter;
and if upon notice to the sheriff of bailiff's misfeasance, the
property is instantly restored, no action of trespass will lie. It
would be otherwise if there was a special command by the
sheriff to the bailiff to commit the trespass. But the writ is a
■warrant to do that only which is lawful; and unless the sheriff
recognises the unlawful act, he is not answerable. Here the
goods were not touched, and the levy was given up as soon as
the sherifT had notice of it. Saunderson v. Baker (h) turns upon
the sherifl 's recognising the unlawful act of his bailiff; and Lord
Chief Justice Dt Grey put it to the jury expressly " That if they
'* were of opinion that the sheriff had recognised the act of
" Bolland^ they ought to give their verdict for the plaintiff;"
which they accordingly did, and said " they were of opinion
" that the sheriff had recognised the act oi Bolland.^^

3. The damages are outrageous. Suter did not touch an ar-
ticle but the chair he sat on; larael rescinded the levy on the
very next day; and the jury give 750 dollars as a compensation
to the feelings of the plaintiff; for he has sustained no injury.
Notwithstanding the case of Duberly v. Gunning (c) the court
may certainly grant a new trial for excessive damages in cases
oitort. yones v. Sparrows, (d) Diicker v. Wood, (e) If there be
any propriety in the rule of Duberly v. Gunning-^ which was an
action for crim. con., it can be only in application to such a case.
The damages here are evidently given by way of example; and

(a)7 D.iJfE.US (c) 4 J), is" Ji. 651 (t) 1 D.tr £. 277.

•b) 3 WiU. SO?. <d) SD.iS" £. 257- 6 Bac. Abr. 667.

OF PENNSYLVANIA. 04,3

no case can be shewn in which exemplary damages have been I8O8.
supported against a sheriff for the act oi his baihff, in an action „ ~

of trespass for taking property. In Lippincott v. Barker sheriff ^,
oi Philadelphia county, the measure of damages was the amount Israel.
sales of the goods.

Ingersoll contra. 1. There cannot be a doubt that^u^^r was
a trespasser. The costs were absolutely paid; and the sheriff
attempts to save himself by a quibble, when he returns, that
they were secured to him. They were settled by Mr. Reed; the
sheriff positively accepted him as a debtor for them; they
were charged to his account; and the idea of security was an
after thought. But the circumstance was also communicated to
Suter several days before he attempted a levy; it was repeated
to him at the time of levy, and there was no pretence of igno-
rance. He even levied for debt and costs; and after taking about
eight hundred dollars' worth of furniture for twenty dollars
costs, he still asked for more.

The pretence of searching for ClarksorCs goods is also setup
sint"-- the fact. He did not ask for them; the parlour of the
plaintiff was not the place to seek them. Though he may have
us;'d no violence to enter the house, his conduct afterwards was
rude and insolent; it shewed the disposition with which he en-
tered; and although a man whose behaviour is civil and deco-
rous may enter my house under the presumption ot general
leave given to persons of such a description, yet my house is
mv castle; and if any one enters it to disturb my family and to
insult and offend me in the bosom of it, he is a trespasser ab
initio.

2. The sheriff is liable under the circumstances of the case.
There is no necessitv for producing a warrant to Suter. He wa.s
the under sheriff and not the bailiff; bailill's, such as are known
in Evgland^ are not known in the state of Pennsylvania. The
under sheriff is the ^ij-f/KTfl/ servant of the sheriff; the bailiff is
his servant to :i particular purpose; hence the necessity ol shew-
ing a particular warrant to the latter, while proof ot :i general
privity is all that is essential to establish the connexion with
the former. Drake v. Si/kes.

The defendant did not rescind his levy until a motion was
made in court, and (.h<\- were about to (<mip -1 him. Hul this
fact is not material; the slieriff is answerable for the act of hiu

2-1-4.. CASES IN THE SUPREME COURT

180H. bailiif or his deputy in the first instance; his liability does not
jj^j^^~" depend upon his subsequent recognition of the act; and so is
^.. the hnv in England^ and in the very case of Saiinderson v. Ba-

IsuAKL. kcr as reported in 2 //'. Biack 832. The Chief Justice, according
to this report, put it to the jury that if they thought the sheriffs
liad recognised BollancTs act, there was no doubt; " and if
'' they had not., still he thought the sheriff was bound by the act
" of his offic.r.s.'''' Go/z/r/ Justice puts this case; trespass against
sheriff for his under sheriff's executing on I. O. 'a fi. fa. sued
out against 1. S. and returning mdla bona of I. S.; and a recove-
ry against sheriff. The true distinction is, did the officer act by
colour of his ivarrunt? The sheriff and all his substitutes make
but one officer; and in Ackxvorth v. Kempe (a) in which Saun-
derson v. Baker came before the court, Lord Mansfield says ex-
plicitly that " for all civil purposes the act of the bailiff is the
act of the sheriff," and that IVilsori's report, that the case turned
upon the recognition of the sheriff, was inaccurate.

We have in this case however what even in Wilson was con-
ceded by the sheriff's counsel to be a recognition, a return of
the levy by the defendant, who ipso facto acknowledges the of-
ficer and all his proceedings. 3 Wils. 311. 315.

3. As to damages. No doubt the court has authority to
grant a new trial for excessive damages. It depends upon the
circumstances of the case. But there is no reason why a sheriff
should answer for his deputy in compensatory damages, that
will not make him answerable in damages of any other kind;
and whether or not in a case of such unprovoked insolence and
rudeness as this, by one of a class of men usually unprincipled
and without property, the court will order anew trial in conse-
quence of these damages, is a question for their discretion. It
is a case in which the jury have asserted in the person of the
plaintiff, the mviolability of every man's house while he lives
in obedience to the laws. Beardmore v. Carrington et al. (b')

T. Poss in reply, after enforcing the arguments for the de-
fendant, was proceeding to urge the distinction between a ^ai-
lijf ixnd an under sheriff; but Chief Justice Tilghman said,
" The case of Drake v. Sykes shews that in England the sherifl
" is liable for his known deputy, but not for his bailiff without
••' warrant. Now we have no such officer as a bailiff in this state.
" Suter vras the defendant' known deputy."

'a) Dou;r. 40 (b) 7 Wih. 244

OF PENNSYLVANIA. 245

TiLGHMAN C. J. after stating the facts, delivered the opinion 1808.
of the court. ~hI7a^

The counsel lor the defendant in support of their motion v.
have contended that there was no trespass, because the costs Israel.
were only seen re(/ and not paid; and because even it tht;v were
paid, the officer had a right to enter the house to look for goods
oi Clarkson; and after he was in he committed no violence, nor
took any thing away. As to the costs, the evidence warrants the
plaintiff in saving that they were paid. When the defendant had
agreed to look to Mr. Reediox them, he had no right to levy;
and so the defendant himself seems to think in his return to the
fi. fa. ; for he there assigns as an excuse for the levy, that the
deputy was not informed of the security which had been given.
Then as to the entry being lawful to search for goods of Clark-
son, granting that to be the case, (concerning which however no
opinion is given) the subsequent conduct of the officer in levy-
ing for costs when none were due, makes him a trespasser. >^

It was also contended that the sheriff was not answerable in
an action of trespass for the conduct of his deputy. We ai'e
clearly of opinion that for all civil purposes he is answerable,^
though not criminally. There appears to be some doubt on the
point in the case oi Saimdcrson v. Baker et al. reported in 3 Wils.
309; but the doubt is probably owing more to the inaccuracy of
the report than to any other cause. The same case is better re-
ported in 2 IV. Black. 832. In Ackxuorth v. Kempe, Doug. 40.
where the case of Saunderson v. Baker et al. was considered.
Lord Mansfield looks upon the law to be quite clear in the man-
ner I have stated it. It is a principle not lately introduced, l)ut
founded upon ancient authorities. And most inconvenient it
would be if tlu; law were otherwise; for the sheriff's deputies
are frequently men of small property, and sometimes of Ijad cha-
racter; and the responsibility ought to rest on the principal,
who has the sole power of appointing and removing them.

The last reason offered for a new trial is, that tlie damages
are excessive. 'J his is tlie only point on which there could be a
doubt. A distinction has been taken between exemplary da-
mages, and those which are only a compensation lor the injury
sustained. This distinction is certainly \\orthy of great conside-
ration by a jury, when a principal, who has been no way to
blame, is sued for the conduct of his deputy. But in point ol
law if the sheriff is answerable at :U1, he must be answerable for

t240 CASES IN THE SUPREME COURT

1808. such damages as the jury, on the whole circumstances, think
Haz uuT P'^P^^ to give. In the present instance they have given exem
7,. plary damages; for the actuiil injury was nothing. They have
l3R A EL. thought it a necessary check to rude and improper behaviour of
the sheriff and his officers. The public safety requires that im-
plicit obedience should be paid to the officers of justice in the
execution of their duty. On the other hand, the happiness of so-
ciety requires that these officers should be influenced by pow-
erful motives to avoid all acts of rudeness and wanton injury.
It does appear that the quiet of the plaintiff's family was inva-
ded at a very unusual hour of the night, without just causej and
it also appears that the officer gave unnecessary uneasiness in
the course of transacting the business; and this too after he had
been warned that he was doing wrong. I am well satisfied from
the character of the defendant, that he was not accessary to this
improper behaviour. From the view which I have been able to
take of the evidence, (imperfect to be sure because I did not
hear it delivered on the trial), the damages appear to me to be
severe; but as the jury have thought proper to make the con-
duct of the defendant's deputy an object of public example, I
cannot say that I think them so altogether wrong, that a new
trial should be granted.

New trial refused. «<> 163I

= ^"1S3

^f^'377l

Lessee of Kyle agamst White and another.

Saturdajf,

January 2(J. rr^HIS cause, which was an ejectment for lands in MiJJiin

An improve- ^ county, was tried before Judges Yeates and Smith upon
mentmade ^^ spring circuit of 1803, and a verdict found for the plaintifl

on lands not .^, r, a • \ c

purchased agamst the charge of the court. A motion was made tor a new

from the In- ^j.jj^j ^^j ^ ^^^ jq shew cause granted, which it was agreed by

dians, does , . . .

not vest a both parties should be argued in bank ; and accordingly it was

title from its j^^^^ argued by Watts and Duncan for the defendants, and by
A survey on Dallas and C, Smith for the plaintiff. The case and the argu-
Td a^f/i/W '^^"^s are so fully stated in the opinion of the Chief Justice,

location is that it becomcs unnecessary to make any additional note of

good against ,

a person who '•"^"'•

had notice of

it before the commencement of his title, even thoiifrh the survey was not returned. It it;

no objection to a survey made before the year 1767 on lands purchased from the Indian?

in 1754, that 562 acresi wf-ro, surscycd upon two warrnnts for 100 acres each.

White.

OF PENNSYLVANIA. 247

TiLGHMAK C. J. This cause was tried at a Circuit Court in 1808.
Mifflin county in May 1803, before Judges Yeates and Smith, t .
when a verdict was found for the plaintiff. A motion was made of
for a new trial; and it was agreed by the counsel on both sides Kyle
that the case should be argued in bank.

It appears that in the year 1749 William White deceased,
under whom the defendants claim, was settled on part of the
land in dispute, which at that time had not been purchased by
the proprietaries of Pennsylvania from the Indians. In the same
vear Richard Peters^ secretary of the land office, went by or-
der of the government with some magistrates, to turn off those
persons who had settled on the unpurchased lands on the yuni-
ata, whose residence in that country had given offence to the
Indians. White agreed to move offj and in recompense of his
submission to the government, Peters promised him that when
the land should be purchased by the proprietaries from the In-
dians, his place should be secured to him. We find that in the
year 1754, before the purchase, y antes Kyle was settled on the
tract in dispute, not far from the improvement of White,, and
that in the spring of the year of /iraaWoc/^'* defeat (1755) he
received notice o( Whitens claim. The proprietaries made a pur-
chase from the Indians, including this land, in the year 1754,-
and in 1755 the land office was opened for the sale. On the day
of the opening of the land office (3d February 1755) William
nTf/fe- obtained two warrants for 100 acres each; one to include
his improvement on which Kyle had settled, the other to the
northward of the first mentioned tract, and to include part of
the jB/^ Meadow. On the 28th of November 1760, a survey of
562 and a half acres was made for White by William Lyon for
Colonel Armstronif,, which was returned into the surveyor
general's office November 6th 1766. In 1763 the office uf Co-
lonel Armstront; was burnt and all his official papers; wiiich
probably occasioned the delay of the return of this survey, by
leading to a belief that it was destroyed by fire, though in fact
it was not.

On the 3d June 1 762, Kyle took out a warrant for 100 acres
adjoininir William JVhite, and not making any mention of his
own improvimcnt; he had entered a caveat 17lh May 1762,
against White's large survey.

In July 1 765 the dispute between Kyle and White was heard
before William Peters, secretary of the land office, who derided

■White.

248 CASKS IN THE SUPREMi: COURT

1808. that after William White's two warrants should be executed,

■~^ ^and accommodated with a reasonable and full share of the sur-

Lesscc

of vey made by Ann.strong^ the remainder should go to the satis-
Kyi.e faction of Kijle^.s warrant.

October 23d 1765, Kyle took out another warrant for 200
acres, inchtdi7ig his iinprovemerU., to pay interest from 1st
3Iarch 1755.

Jime 30th 1768, Kyle and White were heard before the
board of property, who decided that Kyle should have 225
acres out of White's survey, and White should keep the remain-
der.

July 20th 1768, two surveys were made for Kyle on his two
warrants, one containing 106 acres, the other 111 acres.

September 22d 1766, Kyle obtained a conveyance from
George Gabriel; but it does not appear at what time Gabriel
was settled on the land.

April 16th 1755, William White conveyed his right to John
Calhoun^ who devised to his wife and children. His son John
brought an ejectment against James Kyle^ which was tried in
the Court of Common Pleas of Cumberland county (a) April
1770, when a verdict was found for the plaintiff. Kyle then
brought an ejectment against Calhoun^ which was tried at Nisi
Prius May 1773, and a verdict found for the defendant; so that
two juries have found in favour of the title of White.

It appears then that both Kyle a.r\d White claim under ancient
improvements; but that of White is the most ancient. Neither
of them, however, can derive title from the date of their im-
provements, because they were made against law, on lands not
purchased of the Indians. White had an equitable claim under
the promise of Secretary Peters, which the proprietary officers
always recognised. White, besides having the advantage of this
equity, has the oldest warrant and survey. How is his title to
be impeached? It is said that he included too much land in his
survey, and that one of his warrants called for the Big Mea-
dow, which is a mile or two distant from his survey. It is also
said that his survey was not returned till 1766.

The delay in the return of the survey is well accounted for,
by the burning of Colonel Artnstrong^s papers, and the Indian
war in which he took a veiy active part.

(a) Mifflin county was erected into a separate county by act of Assembly
19th September 1789, out of parts of Cumberland and Northumberland
counties

White.

OF PENNSYLVANIA. M9

In considering the objection as to the quantity of land, wc 1808.
must advert to the time when the survey was made. If made x ~
at this day^ the objection would be decisive. But in the year of
irOO, when it was made, it was customary to include much Kyle
larger quantities than the warrants called for. It was not till
1767, that this practice was altered by instructions of the
Governor to the surveyors. Now White ought not to stand in
a worse situation than others, because he had obtained a pro-
mise from Richard Peters^ that his place should be secured to
him; and what strengthens his case very much, is that his sur-
vey was made before Kijle took out his warrant. Kyle too had
notice of Whitens survey before he took out his warrants, for he
entered a caveat in 3Iay 1762. This circumstance answers the
objection that the survey is laid partly on land not called for;
because in case of a survey on a shifted location^ it is good
against a person who had actual notice before the commence-
ment of his title, even although the survey was not returned.

It is of great consequence that there should be uniformity of
decision on titles to land. It appears to me, that the verdict in
this case is contrary to those principles which have been here-
tofore established; and it is a circumstance of considerable
weight, that the plaintiff after two verdicts and judgments
against his title, acquiesced for the length of seventeen years,
before he brought the present action.

I am of opinion there should l)e a new trial.

Yeates J. and Smith J. concurred.

Brackknridgk J. stated the titles as before, and then
proceeded: The accommodation of settlers, and the improve-
ment of the country, would seem to have been the early
policy of the proprietaries; and it ajipears in the usage of the
office in granting lands in small quantities, except in cases of
special favour for special reasons. The induliging or accepting
surveys for more than the quantity in the warrant, was under
the idea that the settler was not able at once to take out a war-
rant for more. Where the warrant was not taken on a settle-
ment, there was not the same reason to call for the inchilgence
•f the proprietary.
White had two warrants for one hundred acres each, and

there would be good reason to indulge him in a survev of three
Vol. 1. 2 I

250 CASES IN THE SUPREME COURT

1808. hundred acres, which then or since had become usual. But

~ here were five hundred and sixtv-two and a half acres surveyed,

^r that is, two hundred and sixtv-two and a half beyond what the

Kyle warrants called for.

^ T- But although the proprietary might indulge, it was still a

^^^^' bare matter of indulgence or courtesy; there was no obligation
so to do; and the proprietary agent Peters- in 1765, and the pro-
prietary^ board of property in 1 768, decided against the indul-
gence, and restricted him to a quantity which would leave two
hundred and twenty-five acres to the plaintiff. The verdict in
the case is according to this decision.

It is reasonable to suppose that the claim of Kyle, who had
also been a settler, or made some beginning of settlement, and
was in the country at an early period, was the ground of re-
stricting the survey, which might otherwise have been indulged.
A survey of three hundred acres on each one hundred acre
•warrant, would be going on the ground of two improvements
and settlements, which was the case here.

I feel a considerable revulsion at the conduct of a settler, who
is not satisfied with defending himself against an Intruder on
bis occupancy, but would exclude him from a reasonable vici-
nage, engrossing for himself more than he could pay for, and
more than the usage of settlement would support. It is astonish-
ing how early this grasp at an unequal distribution of property,
even in a poor man, began to shew itself.

The verdict of early juries has great weight with me, but
not sufficient to outweigh what appears to me very strong in
this case.

I would have left the motion for the new trial to the Judges
who sat on the trial; or at least would have been less willing to
sanction the verdict, were it not that being brought before the
court, though in the way of a concilium, it is but fair to the par-
ties that my way of thinking be understood; in order that they
may exercise their judgments in bringing it before me, or put-
ting it off, at the holding of the nekt Circuit Court.

Kule absolute 1

OF PENNSYLVANIA 251

1808.

LivEZEY and others against Gorcas and others. saturdav,

if if,' January 2.

X HABEAS Corpus issued from the Supreme Court at the An assize of

•*-^ suit of the defendants, to remove this cause, which was an^^^^^^^^ ^^^

i.iiisance

r<-
assize of nuisance^ from the Common Pleas of Philadelphia mr>\.'d fn.m

the Common
county. Pleas to the

Lcxvin for tlie plaintiffs, now moved to quash the writ, for Supreme
two reasons; 1. Because the Supreme Court has no jurisdic- ^'^^^^
tion of an assize. 2. Because a habeas corpus is at all events Corpus.
an improper writ to remove an assize.

1. As the Supreme Court has at this time no original juris-
diction, the plaintiffs were compelled, even if we disregard the
nature of their suit, to institute it in the Common Pleas; and
having so instituted it, it must be left there; for a removal of it
to this court destroys the action. In an assize of nuisance the
recognitors must have a view before the return of the writ, and
none but the jury which has had the view, is competent to try
the cause. The demandant must be i-eady to count ins tauter
upon the tenant's demand, and the tenant is to plead presently;
if he pleads in abatement, he must plead over at the same time;
for the cause must be tried at the return of the writ and not after,
as it IS festinum remedium. The Supreme Court cannot hold
the trial at the return of the writ in the Common Pleas; and the
jurv which alone can try the cause, cannot be brought into the
Supreme Court. It follows therefore that the jurisdiction fails
for want of a jury competent to the trial, and because the Su-
preme Court cannot possibly arraign the assize in that period
in which by the rule of law it must be done. 1 Bac. 251.
Savier v. Linthall (o), Saveris v. Briggs. (^)

The court wants jurisdiction for another reason. There arc no

words in any law to give them authority to take assizes; and ihcy

have no special commission to do it. One ol these is essential.

The Common Pleas have the power in express terms. 1 St.

Laws 182. sec. 21.

2. A habeas corpus is an improper writ. An assize is a real
action which cannot l)i removed b)- habeas corpus. This writ
removes the body with the cause; and lies only where the pro-

vcding is in personam. It dors not lie in. ejectment, replevin

■25:2 CASES IN THE SUPREME COURT

1608. or in any real action whatever. It is particularly inadequate,
~L^^r^^"^~ because it cannot bring up that jury which alone can try the
V. cause; and its eflect is to abate a rightful suit. 3 B I. Co7nm. 130.
CioROAs. jj^ 184. Hetlicring-ton v. Rcijnolds. («)

Raxvle for the defendants.

1. By the constitution of the Supreme Court, it has power
to issue writs oi habeas corpus^ certiorari^ error ^ and all other re-
medial writs and process; it has authority to hear and determine
all and all manner of pleas, plaints, and causes, removed from the
Courts of Common Pleas; and it may exercise the jurisdictions
and powers granted to it, as fully as the Courts of King's Bench,
Common Pleas, and Exchequer, at Westminster. 1 St. Laws
180. sev. 13. Under this gi-ant of jurisdiction it has sustained
removals of dower, partition, and waste, which are real actions;
and there is nothing in an assize which particularly exempts it
from the jurisdiction of this court. It is not expressly within
die court's power; and why should it be, if general terms will
reach the case? But if it is within the authority of the Com-
mon Pleas, it is necessarily within that of the Supreme Court,
which has an unlimited power of removal, confirmed by a par-
ticular section of a subsequent law, in every case in which title
to lands or any other real estate 7nay come into question. 1 St.
lMxvsA:79.sec.4!. An assize is perhaps still more evidently within
the jurisdiction of this court than dower, waste, or partition; for
while these are confined to the Common Pleas at IVestmiiistery
that may be brought either there or in the King's Bench. 3 Bl.
Comm. 40. I grant that recognitors must have a view before the
return, and that the same jury must try; but this is no ob-
stacle to the removal. It is not absolutely necessary to finish
the assize at the return of the writ. The justices will give a
day out of term for reasonable cause. F. N. B. 409, — 10. An
imparlance may be granted for good cause, Saveris v. Brtggs;
(jbj and the assize may be adjourned, or removed to a supe-
rior court. 1 Com. Dig. 567^ — 8. Assize B. 21. 25. 27. 28.
2 Inst. 423.

2. Habeas Corpus is a proper writ. It does not suppose any
actual imprisonment; since in England it lies to every inferior
court, and in cases where the sum in controversy does not au-

(a) 1 Sa//. fe {b)\ Salk 83

OF PENNSYLVANIA. 253

thorize an arrest and there is no bail. It issues it is true in cases 1 808.
which concern the person; and such is an assize of nuisance; for i^^y^^j,^
the plaintiff may recover damages in the action, and have a ca. 'v.
sa. against the defendant to recover them. By an act passed Goiigas.
March 20th 1799, the record itAcIf is removed by habeas cor-
pus in like manner as by certiorari; so that if the cause can be
removed by either writ, it may be removed by that which has
been adopted; and in the case of Hartman v. Weiser, December
1795, which was a writ of dower removed by habeas corpus
from the Common Pleas oi Berks county to this Court, we have
an instance of its adoption in a real action.

Lewis in reply;

Mr Raivle grants that the same jury which views must try;
but he docs not shew how they are to be brought into this
court. The Supreme Court has no authority by act of Assem-
bly to take an assize, nor have the judges by virtue of their
commissions. The justices of B. R. have a special commission
to take assizes; they do not take them ex officio; and when on
their circuit an assize is taken, and adjourned into bank, though
it be the same court, it is so adjourned by virtue of a statute.
There is no instance of the King's Bench having issued either
habeas corpus or certiorari to an inferior court to remove an
assize of nuisance.

TiLGHMAN C. J. The court do not think it necessary to de-
cide whether or not they have jurisdiction of an assize of nui-
sance; but they are clearly of opinion that such an action can-
not be removed into this court by a writ oi' habeas corpus; it has
not been customary, and it is not proper, to remove a real action
by this kind of writ. For this cause only they allow the motion.

Habeas Corpus quashcrl.

12.14 CAbES IN rHE SUPREME COURT

1808.

>i;.*i. ■

Frazer against Tunis and another administrators of

Jaiuiaiv 2. TA

JJUN WOODY.

A claim

IN this cause it was agreed that iudement should be entered
?
uiicaiavc » lov thc amount due from the intestate to the plaintiff; and

danvfo-'^'^o ^^^^ upon the question arising under the plea of want of assets,
account of a case should be submitted to the court, which in substance was

the breach ^^ follows:

ot articles ot

aijreement On the 25th Au£-ust 1 794, yohn Dumvoody and Charles Dil-

i'"' d bt b ■^^'^'■'''' filtered into articles of agreement under seal with Tho-
specialty vias Ritston^ by which they covenanted to convey to him a
mean?n '^f qi^^i^tity of ^^"d at a Stipulated price. Rusto7i covenanted to pay
the 14th sec- the price, and in part performance paid on this agreement 5864
act"oa9th dollars. On the I'th September 1794, the same parties entered
April 1794. into other articles wider seal with the same covenants; and Rus~
ton on this agreement paid 3250 dollars. Ruston assig-ned to
Harrison; Dunwoody and Dihvorth did not perform their co-
venant; and an action was brought upon the last article in the
name of Ruston for the use of Harrison to March 1797 in this
court. Pending the action Dihvorth died, and Dumvoody and
the plaintiff then referred the cause under a rule of court; but
before any award, Dunwoody also died, and the defendants were
substituted as his administrators; after xvhich the referees re-
ported for the plaintiff 15467 dolls. 22 cts. and judgment there-
upon was duly entered.

In 1792 Dumvoody entered into other articles under seal
with M. Slough and H. Downing^ for establishing a line of sta-
ges from Philadelphia to Lancaster in partnership. In these
articles there were covenants to account for and pay over the
receipts &c. and under these, Doxvning claimed a balance from
Dunwoody to a large amount.

The question submitted to the court, was whether the monies
claimed under the said articles of agreement, or anj' of them,
were debts by specialty within the meaning of tho 14th section of
the act of 19th April 1794, which is as follows:

" That all debts owing- by any person within this state at the
" time of his or her decease, shall be paid by his or her execu-
" tors or administrators, so far as they have assets, in the man-
" ner and order following: First, physic, funeral expenses.

OF PENNSYLVANIA. 255

*' and servants' wages. Second^ rents not exceeding one year. 1808.
*' TAir^i, judgments. /'oz/rM, recognisances. i^j/?A, bonds and Fhazeii
*' specialties; and that all other debts shall be paid, without re- v.
'•'• gardto the quality of the same, except debts due to the com- ^ t'Nr«.
" monwealth, which shall be last paid. But if there shall not be
" assets sufficient to discharge and pay such bonds and special-
" ties and other debts, then and in such case the same shall be
" averaged, and the said creditors paid pro rata, or an equal
" sum or proportion in the pound as far as the assets will ex-
*' tend, first paying the bonds and specialties aforesaid." 3 St.
Laws. 521.

The arguments upon the case were confined principally to the
claim oi Ruston; that of Dorvning being more evidently within
the act of Assembly.

Frazer for the plaintiff, (a) These claims are not debts
by specialt}' within the meaning of the section referred to.
Ruston's certainly is not. At the time of Dunwoodif s death
it was a claim for unliquidated damages, which had no fixed
and established measure in law; a position made the iTK)re evi-
dent bv the report of referees, who have awarded more than the
principal and interest of all that had been paid by Ruston on
both articles of agreement, though the action was only on the
second article of 17th September 1794.

Cases arising under the statutes of set-ofF in England are
analogous. The statute of 2 Geo. 2. c. 22. enacts that where there
arc mutual debts between the plaintiff and defendant, one debt
may be set against the other; and the established construc-
tion of that term should govern the construction of an act of
Assembly in which it is used with equal emphasis. Such a
claim as this cannot lie set off. You cannot set off unliqui-
dated damage; Freeman v. I/i/ett (b)^ nor the penalty of ar-
ticles of agreement, which is stronger than this case. Nedriffe
V. Hainan, (c) Debts to be set off must be such as indebitatus
assumpsit will lie for. Iloxvlet v. Strickland, (jcl)

(rt) In (his case, the Court determined to relax Uic rule of hearing only
two counspl on a side, as there were other [)ersons interested hcside tlic par-
ties on record, wlo had af^rccd to be bound by tlie decision in this cause.
Hut the benefit of this relaxation was aftenvards waived by counsel

(/<) 1 W. Black. 394 (d) Co-^vp. 5f^

fr') 2 R:,rr 10?4

256 CASES IN THE SUPREiME COURT

1808. ^^^ have the true definition o{ debts by specialty in 2 Bl.

~T. Comm. 465: they " are such whereby a sum of money becomes,

^, " or IS acknowledged to be, due by deed or mstrument under

Tims. " seal;" a definition adopted in this state in the case oi January

V. Goodman^ {a) before the act of 1794 was passed; and to be

presumed the sense in which the same words are intended bjr

the legislature.

RustorCs claim moreover is not founded barely on the arti-
cles, but on Dunrvoody not having performed the facts in the
articles; the specialty is but mere inducement to the action; and
matter oi fact is the foundation of it; and therefore the claim
cannot be considered as a debt by specialty. Warren v. Co7i'
sett, {b)

Leruis on the same side cited Radcli^e^s case (c) to shew that
the legal sense of the word debt must be presumed to have been
intended.

Rarvle contra, contended that the creditors under the articles
of agreement had at the time of Dvnwoodifs death, a cause of
action founded on a specialty; and although he agreed with
Radcliffe's case, that the judges were not "to lay aside the legal
" sense of a law, and run about to find the meaning in which it
" is received by rustics and plebeians," yet it was by the legal
meaning of the terms " debts by specialty," as intended by the
act, that the claims, he said, were embraced, and therefore
there was no necessity of resorting to the common understand-
ing upon the subject.

The distinction applicable to this act is not between debt, a
sum certain and ascertained^ and damages, to be assessed for
breach of contract^ but between demands ex contractu^ and de-
mands ex delicto. If a party claimed damages for a tort^ the
plaintiff's objection would be well founded; the intestate at the
time of his death owed him no debt; but he that claims upon
the foundation of a contract is a creditor of the intestate; and his
claim must necessarily be a debt. The true question under the
act is, could an action lie against the administrators?

r«) 1 Ball. 208.

(//) 2 Lord PayA^Q^.

C<) 1 Stra. 278.

OF PENNSYLVANIA. 237

These claims are debts by specialty: 1st, Because in that 1808.
country from which we derive our laws, and whose provisions "TT" ~

in this respect must have been in the eye of the legislature, they ^^
have been uniformly recognised as such. 2d, Because if they Tuvis.
are not debts bv specialty, there is no class of debts in the act
under which they can rank; and they must therefore, contrary
to all reason, be rejected altogether.

1. In laying down the order in which an executor or admi-
nistrator must pay the debts of the deceased. Sir JV. Blackstone
ranks in the fifth class, " debts due by special contracts, as for
'■'■ rent, or upon bonds, covenants^ or the like, under seal." 2 Bl.
Comm. 511. The authority cited for this position is Wentxvorth
Ch. 12. and the words of the author are completely in point to
the present question. " Now between a debt by obligation, and
'' a debt for rent or damages upon a covenant broken, I con-
'' ceive no difference, nor any priorit}' or precedency." Wentw.
Off. Ex. 146. And if a doubt can be raised upon the language
of this authority, it must be terminated by Godolphin^ uho says
" between a debt by oI)ligation, and a debt for datnages upon a
'' covenant broken^ there is not any priority or precedency."
Godol. Orp. Leg.pl. 2. ch. 28. p. 220. Doc. and Stud. Dial. 2.
• h. 10. 2 Foiibl. 408.

Money agreed by marriage articles to be invested in purchase
of lands, — covenantor dies without having performed his cove-
nant, — it is a debt by specialty; for an agreement under hand and
seal by deed is a covenant, and consequently a spccialtif. Ben-
ron V. Benson. (<?) There is no other definition of a specialty
debt, but that it is under seal. GifJord\. Manleij^ (b) Bunn v.
Gil If. (c)

The grantor's covenant for him and his heirs in a marriage
settlement, that the premises were free from incumbrances, shall
come in equally with creditors on hand. J^ariicr v. Harvvij. (d')

We have then the authority of approved writers, and the de-
cisions of courts, that this kind of claim is treated in England
as a debt for damages upon a covenant broken; and with these
before their eyes, it cannot be that the legislature has in a pa-
rallel case intended the word debt in a more limited sense. In
relation to the subject matter of the law, this comprehensive
sense is the true legal meaning of the woid.

(rt) \P. Wms. 1.50. (c) 4 luut. 190.

(A) n,n.tr,„f,. r.,\!. 100 (,/) 4 /ja;,;,., ;->. irtw. 3oa

Vol. I. 2 K

258 CASES IN THE SUPREME COURT

1808. The statutes of set-off and cases uncl«"r them, do not apply.

Fkazer ^^ ''' impossible to shew the mtai\ing of" terms used in one

X'. statute, by shewing what they mean in another totalb; dis-

lUNis. similar in its object. The case of Nedr'fjfe v. Hoiran^ cit* d

by jVIr. Frazer^ clearly proves this. Will it be contended that

articles of agreement under seal, with a penaltij in money,

do not constitute a debt by specialty under this act.' Yet such a

debt is not within the statutes of set-off.

But it is said that in this case the articles of agreement are
mere inducement; and that matter of fact is the foundation of
it; of course there is no debt bij specialty. But in the first place
Warren v. Consett turned exclusively upon a question ol plead-
ing; and the judgment was, that where the deed was but in-
ducement, and the foundation matter of fact, nil debet was a
good plea; as in debt for rent by indenture^ becaiiHe the plaintiff
need not set out the indenture in his declaration. But where
the deed was the foundation, and fact the inducement, «i/f/<'Ae<
■was no plea. Now take it in the best manner for plaintiff,
is rent due b\' indenture any the less a debt by specialty^ be-
cause nil debet may be a good plea to an action of debt for it?
But in the next place, the very action in the case cited was
debt upon a covenant to pay a certain sum, in case the di'fen-
dant did not transfer to plaintiff twenty five shares in the Welsh
copper mine company; and the court held that the articles
were the foundation, and the fact of not transferring but mere
inducement; and therefore nil debet no plea.

2. If these claims are not debts by specialty, w^hat are they?
They certainly do not come within any of the first four
classes; and if they are comprehended under the sweeping
description of " all other debts^ without regard to the quality
" of the same," there is a difficulty at the threshold, which if
removed, must carry away with it the onlv objection to our
coming under the fifth class. For surely it cannot stand among
other debts ^ unless it be a debt; and if it be a debt so as to be
included by the swi cping clause, it is impossible to deny that
when coupled with its origin, a writing und'/r seal, it is a debt
by specialty. There is no alternative then, but to argue that this
is a contract upon which the administrators are not compellable
by law to pay any thing.

OF PFNN'^YLVANIA. 259

Letvis in reply. Words used by vulgar people are to be un- 1808.
derstood according to their usual signification; when they are Phazer
used in pleading, thev are to b- understood technically; and v.

when a word of a fixed legal meaning is used by the legislature, Tunis
it must be understood in that sense, unless it be accompanied
bv such explanations as evidently shew another sense to have
been intended. It is for this reason that cases under the statutes
of set-off do apply with great effect to the cjuestion before the
court; for they ascertain the legal meaning of the term debt,
when used bv the legislature; and as there are no explanatory
words in this act to give the same term either an enlarged or
a restricted sense, the same meaning must be implied, as a
necessarv consequence.

But the cases cited by Mr. Rcnvle do not apply. The rule of
the civil law puts specialties upon the same footing with bonds,
having a regard simply to the instrument; whereas our act of
Assemhlv not onlv demands that there be a specialtij^ but that
there also be a deht due and owing by specially. These circum-
stances must both concur to bring the demand ot Ruston wiihin
the fifth class of debts; and although we concede that here is a
specialtif^ we deny that at the time of Dunwoccfifs death there
was a debt due and owing by him to Ruston^ but simply a
demand on the part of the latter tf r unliquidated damages.

1. As to the meaning of the term debt. In legal acceptation it
is a sum of money due by certain and express agreement; as by
a bond for a determinate sum, a bill, or note Sec; where the
<|uantitv is fixed and specific, and does not depend upon any
subsequent valuation to settle it. 3 Bl. Comm. 154. Damages
on the contrary are uncertain. The plaintiff has no certain de-
mand till after verdict; and they are ranked by Rlackstone
imder the head of property acf/uired by suit and judgment at
law. 3 BI. Co vim. 438.

2. As to iMr. A'rtw-'/^'* authorities. There is no question that
■A covenant to pay a sum certain is Tidcht by specialty; and there
is nothing in 2 Bl. Comm. 511. to shew that this was not the
kind of covenant intended. The language implies thiit it was,
as the commentator says " debts due on spec ial contracts, or
" up«}n bonds, covenants, and the like under seal," and the au-
thority cited iiy Blitckstone, merely shews that it was the instru-
vtent which the law regarded, as IVentivorth considers " a debt

bv obligation, a debt for rent, or damages for a covenant bro-

0(30 CASKS IN THE SUPREME COURT

1808. " ken," as having an equal pretension one to the other. Off.

pj^^y^,^ Exec. 146. The passage from Godolphm is to the same pur-

V. pose; one is the transcript of the other. It cannot be a matter

Tunis, of consequence whether the claim be debt or damages, where

the only inquiry is whether the instrument, under which they

accrue, is or is not a specialty.

Benson v. Bmson was clearly a debt by specialty. The trustee
had money in his hands which he neglected to appropriate ac-
cording to his covenant, and died.

Parker v. Harvey is a loose note to be found only in Burn;
iind it does not appear whether the covenant was a general one,
or whether there was a penalty.

3. As to the class under which this claim falls. It is proba-
ble that it must come under the general clause. The clause
however is obscure; for if the phrase " without regard to quali-
•■' ty" refers to rank^ it seems to be useless, as all below special-
ties are of the rank of simple contracts ; it is most reasonable to
presume that all that remained to be specified, are to be includ-
ed in this comprehensive clause, without regard to their being
secured by specialty or otherwise.

TiLGHMAN C. J. delivered the opinion of the court.

This case comes before the court on a case stated for their
opinion.

John Dunwoody undCharles Dihvorlk, both deceased, enter-
ed into articles of agreement under hand and seal, with Thonia^
Ruston deceased, by which they covenanted to sell and convey
to him a quantity of land at a stipulated price. Ruston paid
several sums of money on account of this purchase, but Dun-
-woody and Dihvorth failed in making the conveyance. Ruston
brought an action of covenant on the articles of agreement
against the administrators of Diinzuoodyy which was submitted
to referees, who awarded 15467 dolls. 22 cts. to the plaintiff in
that action. Dunwoody also entered into other articles of agree-
ment under seal ^vith Matthias Sloui^h and Hunt Doivning^ for
establishing a line of stages between Philadelphia and Lancas-
ter; for a breach of which articles Doxvning claims a considera-
ble sum from the estate oi Dunrvoody. That estate is insufficient
for the payment of all the demands against it; and the question,
now submitted to the court, is whether the claims under the
sajd agreements are to be considered as debts by specialty.

O l" P i: N X S YI A' A N I A , 261

Viithin the meaning of the 14th section of the act of Assembly 1808.
of 19th April 1794, entitled ^' An act directing the descent o^ "jT^^Tzer"
intestates' real estates" &c. r.

The act of Assembly declares that " all debts ovv ing by eve- Tcn'is.
" ry person within this state at the time of his death, shall be
^ paid by his executors or administrators so far as they have
*' assets, in the manner and order following: 1. Physic, fune-
" ral expenses, and servants' wages. 2. Rents not exceeding
" one year. 2>. Judgments. 4. Recognisances. 5. Bonds and
" specialties; and all other debts shall be paid without regard to
" the quality of the same, except debts due to the Common-
*•■ wealth, the which shall be last paid."

It is not denied by the plaintiff's counsel that the.se articles
of agreement are specialties; because they are writings under
seal^ which is the true defmition of a specialty. But they con-
tend that in order to be ranked in the 5th class, it is necessary
that they should be debts as well as specialties^ which they sav
they are not, because at thu- time of the intestate's death they
were only claims for unliquidated damages. There is no doubt
but the word debt is frequently understood as a sum of monev
reduced to a certainty, and distinguished from a claim for un-
certain damages; and in this sense it has been taken in the con-
struction of the British statutes authorizing a set-oft", where
there are mutual debts between plaintiff and defendant, liut the
question is whether it has not been used in a more extensive
sense, and if so, whetlier it will not best answer the intent of
the act of Assembly to construe it in its most enlarged
signification.

When the legislature undertook to lay down a rule for the
direction of executors and administrators in the payment of
assets, it must be supposed that it was their intent to direct
them in all cases^ and not to leave a number of important claims
totally unprovided for. It was well known that demands fre-
quently occiu* both of the nature of specialty and simple con-
tract, wiii( h are not debts in iht- sense contended for by the
plaintiff's counsel; and yet there is no description of claim in
the act, other than a drb/. It must likewise be supposed that the
legislature turned their attention towards those bocjks and those,
courts in E/ir^-iand, which treat and take cognisance of tlie pa\ -
mcnt of deius ilue from deceased persons. The order of pa) -
ment of thr>sf dcl»ts is nof dinctrrl by statute, hut pro!iahh-dc-

262 CASES IN THE SUPKI:ME COURT

1808. rived from the civil law, and adopted hv the ecclesiastical
I'razer cf^"i"ts. The cases cited by Mr. Rmvle iVom Godolph. Orph.
V. leg. part 2. ch. 28. sec. 7. 1 P. Wms. 130. Benson v. Benson,
1 I'Nis. and Viner title Executor 2. 0. pi. 39. prove incontestably that a
claim for unliquidated damages, founded on a specialty, ranks
equally with a debt on bond. Theonly answer attempted to be
given to these cases is, that our act of Assembly speaks only of
debts by specialty, but the ecclesiastical law of England regards
only the instrument by which the demand is created, whether
such demand be of the nature of debt or damages. This answer
does not meet the difficulty. The order of payment of debts in
Engla7id is not regulated by statute; the point to be inquired
of therefore is, whether approved writers on the ecclesiastical
law do not speak of this kind of claim as a debt. The words of
Godolphin, M'hlch have been adopted by subsequent authors, are,
'■' between a debt by obligation, and a debt for datnages tipon a
'"'■ covenant brokcji, there is no priority." If we are to have re-
course to the origin, (the latin word debitum, a thing that is
due or ozv/ng) I see no reason why a compensation for breach
of contract may not be due, although not reduced to a certain
sum. But it is needless to examine whether this extensive
meaning is so strictly proper as that in which it is generally ta-
ken in the coinmon laxv. It appears sufficiently, that the legisla-
ture had authority for using the word in that enlarged sense,
which manifestly best answers their intent; for, to construe it
otherwise, would leave a numerous class of creditors unprovid-
ed for, and consequently postponed without reason to all others.
It was suggested though not much urged by Mr. Lewis, that
claims of this kind may be included in the general description
oi all other debts, which are directed to be paid zvithoj/t regard
to their quality. The expressions without regard to quality do at
first view seem to give some little colour to this construction;
but it is to be remarked in the first place, that this is in direct
contradiction to the whole scope of the plaintiff's argument,
which is founded on the position that a claim for damages is
not a debt. Then as to the words " without regard to quality,"
there is no difficulty in perceiving why they were introduced:
the five first classes comprehend all kinds of debts, but those by
simple contract. Debts bv simple contract are of various qualities'-
verbal contracts, notes of hand, bills of exchange &c. The act
of 1705 gave protested bills of exchange a preference to almost
all other debts of the nature, of simple contract. The act now

Tunis.

OF PENNSYLVANIA. 26$

under consideration rppeils the act of 1705; and the object of 1 808.
t\\^ words, -ii'ithout regard to quality ^%v;xs to place all simple Fkazeb.
contract debts on the same footing.

Upon the whole then it appears that the 14-th section of the^
act in question is capable of two constructions, without doing-
violence to its expressions. The court have no hesitation in say-
ing that it is most consistent with good policy, with justice, and
with the intent of the legislature, to consider all claims found-
ed on contracts of the nature of specialty as debts by specialty.
It follows that the claims of Ruaton and Downing^ mentioned
in the case stated, are debts by specialty.

Rug AN and another, assignees of Samuel West a
bankrupt, against William West.

'HIS was an action of Trover which was tried under the

T"".' "" "~r" "J" "t V • D • ."The 56th

gineral issue be forcBRACKJNRiDGE J. at a Aisi rniis m section ot

Di'cember last. Samuel West was the surviving partner of Jo/ui i'-'',^- ^

IVcst, and an administrator to his estate, in which characters he ;iet, wiiicli

was possessed of all thi- personal estate of Jo/in. and traded ">-^'^' s the

• * ... commission

upon it for his own account from 1 797, the year in which yo/iii and assij^n-
diid, to the autumn of 1800. The defendant was the guardian mt'it oonclu
of yo/in West s children, and on the 7th and 8th October 1800, oftlic u-a-
obtainod from SamueL who was at that time einbarrasscxi, an*';''^'"*,"" ^^'^

' _ . ' n! biinkrupt-

assignment of several bonds, notes &c. in trust for the children, ly in all

On the 25th A'c/pt-m/'fr 1800 a commission of hnkruptcr was *;''"'' *''^'"'=

' ' tlic assign-

issued against Samnely under wliich he was declared bankrupt; d. s shall /sro-

and the plaiiitifTs, who were chosen assignees, instituted the ''T'''"^ '"7.i
* ' . tla/'tor (it the.

present action to recover the property thus assigned to the iiaiiknipi foi

eiendant. ^ ■' , ,

ty or demand.

The counsel for the plaintiffs, after opening their case, g;rve in "^i*^'* '"'^ "P"
evidence the commission of bankruptcy, and the assignmeitdu- tion i A' trover
ly acknowktlgtd before a iudge of this court; and thev then .-^ " "^'

■' *-> Jo ' . siijrnrcs.

ofl'cred in evidence the original proceedings liefore the commis- The pro-
sioncrs, which had been filed in the clerk's office of the District 7'.'!'."|^'|''',?'

siri|\< IS of

bankrupt «rc Jtnis/iiJ witliin the ,51st section, when the; conimissioncrH have |iro(i cdetl
on tlie rommisHioii, examined tho h.inkinpt and nthcr \\itiu»:ic-s, admitted the irt-ditors
to pi'jve their dvl'ts, and a»»ij,f>ied the bankrupt's ( Ktate. And when filed in tiic Disiricl
Court, rcrtificd copies tlureof are fjrima/acie evidence against all persons, of the commi.s-
sion, trading, and act of bankniptcv.

CASLS IN TIIK SU HHEME COURT

Court, including all the examinations of the bankrupt up to the
lUiGAN time of his certificate. The commission and assi^'fnncnt were
V. proposed as cviilence of the issuing of the con:\mission, and
\Vest. of Samuel lFest''s being a trader and bankrupt at the time
mentioned therein, agreeably to the 56th section of the bank-
rupt act of the United States^ passed 4th u^pril 1800, which
Is as follows: " In all cases where the assignees shall prosecute
" any debtor of the bankrupt for any deht^ duty or demand^ the
"^ commission or a certified copy thereof and the assignment of
" the commissioners of the bankrupt's estate, shall be conclu-
" sive evidence of the issuing the commission and of the person
" named therein being a trader and bankrupt at the time men-
" tioned therein." The proceedings were offered as evidence
of the state and condition of the bankrupt's affairs, and the course
of his proceedings, at and before his bankruptcy, as far as they
appeared in his examinations, agi-eeably to the 51st section,
v.'hich is in these words; "■ The said commissioners shall once
*•' in every year carefully file in the clerk's office of the District
" Court, all the proceedings had in every case before them and
"■ v.hich shall have hecD fnis/ied^ including the commissions,
■•' examinations, dividends, entries, and other determinations of
" tl:e said commissioners, in which office the final certificate of
'' the siiid bankrupt may also be recorded; all which proceed-
" ings shall remain oj' record; and certified copie,s thereof shall
" be admitted as evidence in all courts in like manner as the
" copies of the proceedings of the District Court ore admitted in
■•' othcj- cases.''''

The evidence ofl'ered under the 5 1st section was objected to
as being inadmissible for any purpose in a suit between these
parties; and it was also objected that the commission and as-
signment could not be evidence under the 56th section, inas-
much as the defendant was not in anv sense of the word a debtor
of the bankrupt. Of the same opinion on both points was the
court.

The plaintiff 's counsel then ofl'ered the deposition of Thomas
Fisher taktn before the commissioners, and filed with the other
proceedings, to prove the act of bankruptcy, he being dead.
This evidence was also objected to, and overruled; and the
plaintiff's not being prepared with other evidence to these
points, a nonsuit was entered with leave to move in bank to set
it aside.

OF PENNSYLVANIA. 055

At the request of the plaintiff's counsel, the reasons for the 1808.
opinions of the court were reduced to writing and filed; in sub- t>„^ 77""
stance they were these. His Honour was of opinion, that between y.

these parties the 50th section had no effect upon the evidence, West.
because the defendant was not a (Jebto>' whh'iu either the common
or strict acceptation of the term. The action oi' trover supposes a
trespasser; it is founded in tort; and where no money has been
received, it would be a fiction to treat the defendant as a debtor,
not to be allowed for the purpose of extending an exception to
the rules of evidence. The word debtor in the 56th section can-
not be construed to include all other defendants; and if it could,
so as to comprehend an adverse claimant or possessor of the
bankrupt's property, it would be unreasonable so to construe it.
It cannot i)e material to the debtor when he became indebted, or
when the act of bankruptcy was committed; or if it should, it
would be a hardship, and would furnish a reason for confining
the conclusiveness of the ex parte evidence to the case of a
debtor commonly so called; ex parte evidence, because there is
no provision in the law for giving a debtor the privilege of be-
coming a party to the proceedings before the commissioners,
or of a trial by jury in case of a contested fact. IJut where the
property in question is alleged to have come to the possession
of the defendant after the bankruptcy, and to have been convert-
ed by him, his defence may rest upon the time of the bank-
ruptcy; and it would therefore be still harder to extend by con-
struction this ex parte conclusiveness to the case of such a de-
fendant. It seems necessary to confine the innovations by this
act on the common law rules of evidence, to the case of debtor
or creditor in the common or strict legal and technical accep-
tation of the term. The creditor is Ixirred as to certain facts,
Ijecausc he may make himself a party; and the debtor to a cer-
tain extent, although he cannot make himself a party. Under
the 5 1st section the proceedings before the comniissioncrs, filed
in the District Court, ma)- be given in evidence in bar of a
creditor and debtor, conclusive as to some facts, .xw^X prima facie
as to all; but in the case of such defendants as do not come un-
der the description of creditor and del)tor strictly taken, thev
cannot be evidence as to tlie testimonj- before the commis-
sioners, unless it be where it is lost and not in the power of the
party to produce, or not in their power to have produced since
the institution of the suit. The present suit was brought in Scp-

Voi. I. 2 1.

RVGAN

206 CASES IN THE SUPREME COURT

1808. iffii/nr 1801; and F'talier died oiil}' during the last Nisi Prins;
so that there was an opportunit} to obtain the testimony by de-
position, giving the defendant liberty to cross examine. The
West, result ot the vhole is, that the defendant has a right to expect
that ever)' step in establishing the bankruptc}' and the assign-
ment will be supported by proof orignially made, and where he
can have an opportunity to cross examine.

A motion was accordingly made to set aside the nonsuit,
and was argued for the plaintiffs by Gibson and JRawle^ and by
E- Tilghman and Ingersoll for the defendant. The Chief Jus-
tice, who had been a commissioner in the cast, did not sit upon
the argument; and Judges Smith and Brackenridge sat
solely for the purpose of constituting a court, as the former
had expressed an opinion upon the material points opposed to
that of Judge Brackenridge, when the cause was opened
before him at a Nisi Prius in July 1807, and was interrupted
bv the sickness of a juror.

The counsel for the plaintiff argued that the commission and
assignment were by the 56th section, made conclusive evidence
between these parties, because the term debtor is not to be taken
in a strict technical sense, but as a correlative to debt, diUy^ or
demand^ and as expressly descriptive of a person prosecuted^
which implies an action for a tort^ as well as for a breach of con-
tract. That it is the policy of the law to make them conclusive- of
the trading and bankruptcy against every body; because from the
extent of the United States^ it would be infinitely inconvenient to
be called upon for proof of these facts, at a great distance from
the place where they occurred. That if by the section they are
conclusive only upon debtors, strictly speaking, still the case
of this defendant is embraced, who is in substance a debtor,
although pursued by an action of trover; for the section does
not speak of any form of actioii, but leaves that to the assig-
nees, and merely regards the character of the defendant, as
being subject to a demand by the bankrupt whom they re-
present.

The objection to reading the proceedings under the 51st
section went at the trial upon two grounds: first, that they
were not finished; but this is clearly the case when all the sum-
mary proceedings of the commissioners are at an end, although

OF PENNSYLVANIA. 26:

dividends may remain to be made. W^hen the bankrupt has 1808.
obtained his certificate, there is a finishing of the proceedings jJT"
M'ithin the meaning of this section. The second ground was -v.
that thev were evidence only between parties and privies, and West.
that none but creditors can become parties. Taking this to be
the case, it is a clear principle that whoever refuses to come in,
when it is lawful for him, is as much concluded as an actual
party; and then the question is whether the representatives of
jfo/ifi West could have come in; and where was the impe-
diment. There was a clear and certain debt due from the
bankrupt; and but for the security, the whole might have been
proved. The security does not alter the case, whether justly or
imjustlv obtained. If unjustly, it is out of the question. If
justly, thev might have applied for the sale of it, and have
come in for the residue; and their choosing to hold to the
security cannot make them less a creditor; if it is insufficient,
the certificate bars as to the deficiency, and this shews them to
be a creditor. But the bankrupt was a creditor of his own estate
for this very debt, and might have proved it as administrator
under his commission. Ex parte Leeke (a). Co. B. L. 133. 137.
If the estate oi yolin West is barred, of course the representa-
tives of that estate are barred as privies. It is, however, a mis-
construction of this section to confine it to creditors, 'ihe
words that the " proceedings shall remain of record''^ make
them evidence without any thing further; and as they are so to
an equal extent with the proceedings of the District Court in
rerriy to which the proceedings under a commission of bankrupt
are analogous, they l)ind all the world. Certainly they are evi-
dence prima facie ; for as the 56th section is conclusive uj)on
debtors, and creditors are bound as parties without a Sjiecial
provision, the only oljject of the 51st section is to make them
evidence between persons of another description, for which
the impartial office of the commissioners was a sufficient reason.
Jatison V. Wilson [b).

Fislicr^s evidence would therefore come in under either
construction; and bv his death there is an additional reason
for it. He coidd not have been examined under a rule, for he
was nt ither an ancient nor a going witness, and he lived within
forty miles of the place of trial; of course we had not been
guilty of laches.

ia) 2 Bro. .Wf. (b) Drnt;. 2t6. C257">

268 CASES IN THE SUPREME COURT

1808. The counsel for the defendant argued upon the effect of the

77~. 56th section, that if it made the commission and assignment con-

■j.. elusive evidence between these parties of the facts stated in the

"West, section, it must be the same against all the world; in which case
a commission would be proof against the suggestion of fraud,
concert, and all other defects. In the face of the grossest mis-
conduct in the bankrupt, of a trading and act of bankruptcy
preconcerted and merely colourable, in fraud of the law, the
commission would itself protect the iniquity by which it was
produced. This cannot be the meaning of the section; in the
case of 3I'-Laivs^ a bankrupt, Judge 1Vashi?ig-ton held that it
was not; for upon proof that the whole was a matter oi con-
cert between the bankrupt and his friends, as nine tenths ot all
the bankruptcies in Pemisiihania have been, he decided that
there was no bankruptcy. The true construction is. that as it is
of no importance to the debtor, against him it is conclusive;
but against persons claiming adversely to the bankrupt, it has
no operation; of course most clearly it is not conclusive in those
cases where the bankrupt himself could not sue, and whei-e the
^ assignees come in to defeat an act by which the bankrupt would

be estopped. As against .S". West^ the assignments in question
are good, be they ever so fraudulent against creditors; and he
could never come forward to defeat them, supposing the com-
mission to be set aside; to this defendant therefore, the time
and the fact of bankruptcy are all important. But what is deci-
sive against the plaintiffs, is their election to consider the de-
fendant as a wrong doer; they have waived the contract, and
proceeded for the tort; and they shall not by their action deny
that he is a debtor, and deprive him of the rights which he
might have in that character, and at the same time treat him as
a debtor, for the purpose of exposing him to consequences to
which he is not liable as a wrong doer.

Under the 51st section these proceedings are not evidence,
because subsequent proceedings remain to be had. The filing
of the dividends implies that nothing more is to be done; and
the contrary aigument supposes that the commissioners may,
from time to time file the proceedings in any one case, part at
one time, and the residue at another, which the section does not
permit. The whole must be filed and shewn together, that no
Improper effect may be produced by a part. But at most they
are evidence like the record of a judgment, only between

OF PENNSYLVANIA. 269

parties and privies, that is, between creditors and purchasers. igOS.
Now in the first place, where a person is possessed of a secu- — tt"; '
rity, he is not obliged to give it up, and until he does, he cannot ^,,
prove his debt, or become a party, and is to the present pur- West.
pose no creditor. Co. B. Z. 1 19. But further, if the defendant is
treated as a creditor of S. JFest, at the time of the bankruptcy,
it is because the assignments are looked upon as an act of bank-
ruptcy, or as being subsequent to such an act, which is the verv
question. So that whether creditor or not, even by the plain-
tiff's argument, may depend upon the time of bankruptc\',
which time they argue to be fixed against the defendant, be-
cause he is a creditor. The argument is in a circle.

Supposing, however, the entries and determinations to be
evidence against every bod\-, the depositions are so only upon
the common terms, that is, where the witness cannot be had,
or is dead, and there have been no laches in obtaining his tes-
timony, which certainly cannot be said in this case.

YnATF.s J. The questions raised in this case depend chieflv
on the true construction of the act of Congress of the 4th April
1800; the 51st section whereof is in these words: " The said
''commissioners shall once in every year carefully file in the
" clerk's office of the District Court all the proceedings had in
" every case before them, and which shall have hcvnjinifihed,
" including the commissions^ examinations,, dividends, entries,
" and other determinations of the said commissioners, in which
"office the final certificate of the bankrupt may also be record-
"ed; all which proceedings shall remain of record in the said
"office, and certified copies thereof may be admitted as e\i
" dence in a/l rourt.f, in /He yuanner as the copies of the pro-
"ccedings of the said District Court are admitted in (ithei-
" cases." And the .56th section runs thus: " In all cases where
*•' the assignees shall prosecute amj debtor of the bankrupt for
" any dcbt^ ^^ifij or demand^ the commission or a certified cop)
"thereof :uk1 the assignment of the commissioners of the bank-
" rupt's estate, shall be conclusive evidenc<- of the issuing the
'"'' commission^ and of the person named therein being a trader
" and bankrupt at the time mentioned therein."

I have no hesitation in de( laring that this jGih section is not
leferahlc to an action of trover and conversion. The words
" any debtor" exclude suits founded in tort^ from the operation

270 CASES IN THE SUPREME COURT

1808. of the clause; and in the interpretation of a law, we are not at
RuGAN~ li^<-'rty to drop any expressions made use of by the lawgivers.
V. Besides, there is a solid ground of distinction between causes of
West, action which arise ex contractu, and those which arise ex de-
licto. It is of no moment to the debtor whether the suit is insti-
tuted by his creditor originally, or by his assignees, or when the
supposed act of bankruptcy was committed. His defence is pre-
cisely the same in both cases; and by the 13th section of the act
a provision is introduced that " where a debtor shall have bona
'"'•Jide paid his debt to any bankrupt, without notice that such
" person was bankrupt, he or she shall not be liable to pa\' the
" same to the assignees." But in cases of persons claiming by
from or under such bankrupt, adversely to the assignment, it is
all important to them that they should be at liberty to contest at
law the commission, trading, bankruptcy, and the time of the
act of bankruptcy committed. To preclude such persons from
their full defence, and to conclude them by proceedings to
which they neither were nor could be parties, would in my idea
be a violation of the first principles of justice. Hence it is that by
the 2d section of the act, it is directed that the petitioning credi-
tors shall give bond, conditioned for the proving their debts, as
well before the commissioners, ason atrial at law, in case the due
issuing forth the commission shall be congested, and also for pro-
ving the party a bankrupt. And such has been the usage under
the bankrupt laws of Great Britain^ of the United States^ and of
this Commonwealth, and so it must have been necessarily de-
termined in the case of M'-Laxvs the saddler, by Mr. Justice
XVashbigton^ in the Circuit Court of the United States.

The 51st section is attended with more difficulty. The words
" xvhen finished'*'' may I think be fairly satisfied by the commis-
sioners' proceeding on the commission awarded, declaring that
the party was a Ixmkrupt on due examination and sufficient
cause, examining the bankrupt and other witnesses, admitting
the creditors to j)iove their debts, and assigning the estate and
effects of the bankrupt to such person or persons as the major
part in value of such creditors according to their several debts
proved, should appoint.

It is declared by this clause that the proceedings shall remain
of record in the office of the ch.rk of the District Court; and
Copies thereof shall be admitted in evidence in all courts, in like

OF PENNSYLVANIA. 271

inaivier as the copies of the proceedings ol" the District Court 1808.
are admitted in other cases.

On the part of the plaintiffs it has been contended, that the

RUGAN

proceedings bting declared matter of record, necessarily be- West.
come evidence without other words; and being put on the same
footing as the proceedings of the District Court in other cases,
which has exclusive maritime jurisdiction and in the instances
of their proceeding in rem^ all the world are supposed to be
parties, and to be concluded by the subject matter deter-
mined. The Icfendant's counsel have insisted that the clause
must be construed strictly, as an innovation on the rules of
evidence at common law; and that as the act assimilates the
proceedings of the commissioners, considered as evidence,
to judgments, the former can only be read in such cases
where the judgments could be received in evidence; that judg-
ments are not admissible in evidence except as between the
parties and privies; and consequently as the defendant neither
was nor could be a party to the proceedings before the com-
missioners, those proceedings were as to him res inter alios
acta; and he could not be affected thereby in any shape.

The res(jlutions under the British acts of bankruptcy throw
no light on the present question. They vary in point of expres-
sion from our statute, as far as relates to the subject under con-
sideration. The statute of 5 G. 2. c. 30. s. 41. prescribes that
" a true copy of the record of such commissions, depositions,
" and proceedings, or other matters and things, shall and may
" upon all occasions be given in evidence, to prove such com-
" mission and the bankruptcy of sucli person, against whom
" such commission hath been or shall be awarded, or ot/ier
" matters or things^ any law, usage, or custom to the contrary
" notwithstanding." In Janson v. Wilson^ Doug. 246. (257)
the Court of li. R. were of opinion that the depositions of the
act of bankruptcy when recorded, are evidence in an action at
law to prove x.\\ii precise time when the act of bankruptcy was
committed, if specified therein. But it is said that it has 7iot
i)een determined whether the depositions may be contradicted.
Cooi. li. L. 5()2. 4 Ed.

I consider the bankrupt law as a system of policy devised b)
the legislature of the union for great national purposes; and ac-
commodated to the circumstances and local situation of the
I ^nifrd States. Many failures must necessarily take place in a

212 CASES IN THE SUPRKiMi: COURT

1808. country of so great extent, wlKrc commercial enterprise pre-
~~ri "vails in a hicrii decree. It would be inconvenient in such a state

J, of things, that in everv case where a bankruptcy occurs, parol

Wesi . proof should be deemed absolutely necessary to be made of the
trading and act of bankruptcy, however remote the trial might
be from the scene of action. I adopt the language of Lord
Mansjield in the case cited from Douglas^ that " the legisla-
*' ture considered the commissioners as indifferent persons,
" examining the witnesses with impartiality, and taking care of
" the interest of all parties." In the case of the death of any
witness examined before them, his testimony is perpetuated.
The law seems not to be confined to those who are or might be
parties to the proceedings. Debtors of the bankrupt have no
such opportunity of being made parties, nor have distant credi-
tors; and yet with respect to both classes, it is admitted that the
proceedings may be read in evidence. Besides, it strikes mc
forciblv, that if the 51st section is not considered to have a
general operation on this and similar cases of adverse claims
against the assignees, then it is wholly nugatory and superflu-
ous; it can have no possible object. The 56th section makes the
record of the commission conclusive evidence in the case of any
debtors^ and presupposes that a general provision had been made
as to receiving such record in evidence. But by confining its
conclusive effect to the cases of debtors, it leaves other instances
open to be decided on by a jury, on a fair comparison and con-
trast of all the testimony exhibited on the trial.

The result upon the whole then is, that the proceedings of the
commissioners when recorded should be received Tis prima facie
evidence of the commission, trading, and act of bankruptcy, in
the present instance; but that it is competent to the defendant to
contest the same by other proofs; and that the deposition of
Thomas Fisher who died since the examination should be re-
ceived in evidence.

Smith J. and Brackknridgi: J. remaining of their former
opinion, the judgment of the court was tliat the

Nonsuit be set aside.

OF PENNSYLVANIA. 273

TTTis 1808.

tV.ils MARCH TERM. 1808.

6stl54|

The Commonwealth a stains t Messinger and others. Saturday,

^ March 26tli.

'TT^HE defendants were indicted in the Quarter Sessions of Upon anin-
-*- Northampton county, for feloniously stealing one bill obli- s,'ealinp' a

gatorij given bv Messinger to Cleaver^ and bv him assigned to^'"'''^ noie,
rr ' 4, , r^, . , , . . ,: ... , bill oblisrato-

xienry Abel. 1 hey were tried upon this indictment and lound py &c. evi-

guilty; but a new trial was ordered, because the verdict was '^*-""ce of the

taken after twelve o'clock at night of Thursdai/y the court having ^i.e ipstm-

commenced its session on the preceding Monday^ and the time i"*^"*^ "^^y '"^

oi holding and continuing the Court ot (:iuarter sessions in out shewing-

Northampton county beincr limited by law to four days. The ^ "^^'ce to

, . • " . . ' the defend-

indictment was afterwards removed to the Circuit Court, and ant to p>"o-

was there tried before Br ackenridgeT. on the 29th .4/;;7/l 806. '^"^'^/'''■°''''

ii"inal at the
At ':h( trial Henry Abel was produced as a witness on the partn-iui.

of the prosecution, and being about to state the contents of the U"'''^'' ^^*
bill obligatory ch:irged to have been stolen, it was objected by 'Ai)iii 1790
the counsel for the defendants that no parol evidence could be ^'I'^l^ de-
admitted to prove the contents of the bill, but that the bill hiiceny ot
itself should be produced, or evidence given that it was lost or'""^ "''^'5V
destroyed, or, if in the hands of the defendants as alleged, thatimnishcd iu

notice was eiven to them to produce it. This objection was " '*"""*^
^ ,' . -^ manner as

overruled by the court, and the following reasons for the opinion iaivcny of

were filed of record at the request of counsel, aereeablv to ''I'-^^""*^\°'^

^ ' o / cliuUi-ls, the

the 25th section oi the act of 24th February 1 806. " Overruled Cdonious

" by the court, because this is not a case within the reason of ^','. •'^ ^^\

• , ' _ ... "' ""f hillou-

" the principle of the law relative to giving notice to a defend- hiratory is

" ant to produce papers, as it would supervene another preat '""",'

I II' I _ 's as a larco

" principli-of the law, that no man is bound to accuse himstlf,
*' or produce evidence of his guilt- It is alleged that the defind-
" -ints did take and carry awav the p;ip«r, which supposes it in
" their poss' ssion, and out of the power of tli! Comujonwealth
" or prosecutor to j)roduce it; the next best (.vidence is thcre-
" fore admissil)le, which is the proof offered."

H. II. Brackenridge.

The defendants were convicted; and on th 30th of April
their counsel filed the following r( ason to ground a motion in
Vol. I. 2 M

Messin-

RK.R.

274 CASES IN THE SUPREME COURT

1808. arrest of judgment. " That at common law no larceny could be
Common- " committed of a 'nil oliligatory as laid and described in the in-
wculth " dictment. That this indictment if founded at all, must be
T-'- " founded on the fifth section of an act of Assembly passed on
'"'■ the 5th dayof ^/>;-?/ 1790, entitled 'An act to reform the penal
*' laws of this state;' but that the charge laid in the indictment is
"not within the provisions of the said act, inasmuch as the said
" act declares that ' robbery or larceny of obligations or bonds,
" bills obligatory, bills of exchange &c. shall be punished in the
" same manner as robbery or larceny of any goods or chattels,'
" but does not declare or provide that robbery or larceny of a
" bill obligatorij shall be so punished." The motion was there-
upon made and argued; and it was agreed that an advisare vult
should be entered, that a motion for a new trial should be con-
sidered as having also been made, and that both the question of
evidence and the objection to the indictment should be argued
in bank.

The}- were argued accordingly on the 1st and 2d of jfan-
nciry 1 808, by Hopk'inson for the defendants, and the Attor-
neij General for the Commonwealth, and held under advise-
ment until this day when the Judges delivered their opinions.

TiLGHMAN C. J. This is an indictment against the defen-
dants for felony in stealing a bill obligatory for 175/. from
Philip Messinger to Jesse Cleaver^ assigned by Cleaver to
Henry Abel.

On the trial of the cause two points were reserved for the
consideration of this court.

1. Whether parol evidence was admissible to prove the con-
tents of the bill obligatory described in the indictment, without
having given notice to the defendants or one of them, in whose
hands it was, to produce it at the trial.

2. Whether the taking of one bill obligatory is punishable
as a larceny, under the act of 5th April 1790, section 5.

As to the first point, the law seems to be settled in England^
that with respect to proving the contents of writings by parol
evidence, there is no difference between civil and criminal
cases You are to produce the best evidence that the nature of
the case admits of. The paper itself, if in existence, and in the
power of the prosecutor, is to be produced; but if it is in the
hands of the defendant, notice must be served on him, or his

Ml' SIN-
GER.

OF PENNSYLVANIA. 275

attorney, to produce it, because otherwise it cannot appear that 1808.
the prosecutor might not have had the original, if he had chosen (-^ ,
to call for it. This principle is established in the cases of Le wealth
Merchant^ 1 M-Nally 250. The King v. Aiciles, 1 Leach 330. -^^
(third edition) The Kbigx. Watson^ 1 M'-Nally 234. and Gates
qui tarn V. Winter^ 2 D. ^ E. 306.

So far as relates to all papers, but that which is the su'ject of
the larceny^ I fullv concur with the principle above mentioned;
but with respect to the paper which has been stolen^ a different
rule has been followed in Pennsylvania. It has been usual to
prove the contents of paper bills of credit, before the American
revolution, and of bank notes since, without giving notice to the
defendant to produce them. I am induced to follow this rule
the more readily, because no injury can result from it to the
defendant. He is informed by the indictment, in what manner
the paper in his possession is described, and if it is not truly
described, he has it in his power to shew it. This in effect is
notice; and I think it is for the interest of the defendant to have
it so considered. The court have no power to compel him to
produce the paper; and the very circumstance of giving him
actual notice to produce it may, in case of his not complying,
make an impression to his prejudice in the minds of the jury.
With regard to other papers, the case is very different. Not
being the immediate subject of the prosecution, the defendant
may be taken by surprise, having no reason to suppose that
they will be brought into question. It is proper therefore in
such cases, that no evidence but the paper itself siiall be re-
ceived, unless the defendant having received notice declines
producing it. I am therefore of opinion that in the case before
us, the parol evidence was properly admitted.

The second point turns on the fifth section of the act of 5th
April 1790. It is thereby enacted that " robbery or larceny
" of obligations or bonds, bills obligator) , bills of exchange,
" promisson' notes for the payment of inonev, lottery tickets,
" paper bills (if credit, certificates granted by or under the au-
" thority of this Commonwealth, or of all or any of the United
" States' of Afnericoy shall be punished in tiie same manner a&
" robbery or larceny of any goods or chattels."

The obvious intent of this law appears to be, to put bonds,
with respect to larceny, on the same footing as goods or chat-
tels. They arc made the subject of larceny, which they were

276 CASES IN THE SUPREME COURT

1808. not before. If larceny of bonds is to be punished in the same
0)111111011^ nianncr as larceny of onij g-oods or chattels^ larceny of one bond
-wealth niav be so punished, because larceny may be committed of
^'- a single chattel. When it is said that larceny of bonds may be
punished as larceny of a?ii/ goods or chattels, it is saying sub-
stantially, that larceny of any bonds may be punished. Now if
this had been the exact expression, it may be easily shewn by
authority, as well as reason, that larceny of o?ie bond would
have been included.

The statute 32 H. 8. c. 9. forbids the purchase of any pre-
tended rights or titles. In the case of Partridge v. Straiinge
and Croker^ which was an action of debt on this statute, 6 and 7
Ed. 6. Ploivd. 86. Justice Hales gave his opinion, which was
not contradicted by the rest of the court, that the purchase
\ of one pretended right was an offence against the statute,

although the words are in the plural number. The statute
23 H. 8. c. 1. takes away the benefit of clergy from persons
who wilfully burn any dxvelling houses^ or rob any churches or
chapels; Mv Lord Hale takes it for granted, that the burning
of one dxvelling house^ or robbery of one churchy is within the
purview of this statute. 2 H. H. P. C. 365.

By statute 2 G. 2. c. 25. s. 3. it is enacted that " if any person
*' shall steal or take by robbery any bank notes, bonds, bills,
*' promissory notes for the payment of any money," &c. &c.
" notwithstanding any of the said particulars is termed in law
*' a chose in action^ he shall be deemed guilty of felony of the
*' same nature, and in the same degree &c. in the same manner
•' as it would have been if the offender had stolen or taken by
*' robbery any other goods of like value" &c. It was determined
in HasselPs case that the stealing of a single bank note is with-
in the statute. 2 East. Cr. Law. 598. 1 Leach 1. S. C.

By act of Assembly 22d April 1794. s. 5. any person who
shall be convicted of printing, signing, or passing, any counter-
feit notes of the bisnks of Pennsylvania^ North America, or the
United States, shall be punished as is therein prescribed. It has
never been doubted that the printing of one counterfeit note is
an offence within this act.

Indeed the counsel for the defendant confess that if the ex-
pression in the act in question had been a7iy bonds &c. the con-
struction must have included one bond, because they say the
word any is put in opposition to none. But the word any may

OF PENNSYLVANIA. 27;

with equal propriety be applied to a substantive in the singular 1808.
or in the plural number; and where it is joined to a substantive rommoii-
in the- plunil, it certainly has in strict construction a plural sig- wealth
nification. So that all the cases I have mentioned where any ~^'-
churches has been construed one church he. prove that the strict ^^^^^^sin-
meaning of the expressions has been departed from, in order to
comply with the manifest spirit and intent of the law. The truth
is, that this objection is founded on a single case, which when
examined does not warrant the extensive conclusion attempted
to bf drawn from it; I mean the case of the statute 1 Ed. 6. c.
12. by which the benefit of clergy is taken from the felonious
stealing of horses^ mares, or geldings. A doubt arose on this sta-
tute, whether clerg}- was taken from the offence of stealing one
horse, and to remove the doubt the statute of 2 and 3 Ed. 6. c.
35. was made. My Lord Hale'^s account of the matter is this,
that the doubt was not solely because the statute 1 Ed. 6. was
in the plural number, horses, mares, or geldings, but because the
statute ^7 H. 8. c. 8. was expressly penned in the singular num-
ber: " if any man do steal any horse, marc, foal, or filly;" and
then this statute of 1 Ed. 6. thus varying the number, and yet ex-
pressly repealing all other exclusions ot clergy introduced since
the beginning of Hcnrij 8. made some doubt whether it was not
intended to enlarge clergy where only one horse was stolen.

Upon a full consideration of the words of the act of Assem-
bly, and of all the authorities which bear upon the point, I am
of opinion that the felonious taking of the bill obligatory
charged in the indictment, is punishable as a larcen)-.

Yeatf.s J. The first question to be considered, is whether
the admission of parol evidence on the trial of this indictment,
respecting the bill obligatory alleged to have been stolen, was
erroneous, no notice having been previously given to the de-
fendant to produce it. The general rule is (a) that when an
original instrument is in the hands of the party, against whom
it is intended to be given in evidence, no evidence whatever of
its contents can be received, until notice has been given to pro-
duce it in order to avoid misrepresentation; and it is said, (b)
that there is no distinction in this particular, between civil and
criminal cases. Lord Ala ns^e Id sccma however to have drawn

(fi) Penh's Compend, 70. "1. (/.) M'Nal. Evid. 348.350.

278 CASKS IN THE SUPREME COURT

1808. :illne of distinction between thcin in (r/) Roe v. Harveif; and he
ConinioD- l^ys i^ down, that in a criminal or penal case, the defendant is
wealth never forced to jjroducc any evidence, though he should hold
^, ^'' it in his hands in court. The rule is introduced to guard
' GER ligainst a false statement of the facts contained in a written pa-
per, and presupposes the possession of the paper clearly in the
adverse party. But does it necessarily follow, that the designa-
tion of a bill or note as the subject of larceny, draws after it a
minute description of its full contents with the date, and the
names of the witnesses? And is it consistent with the benevo-
lent spirit of the law, that the stolen goods charged in the in*
dictmcnt for felony, shall be deemed to be in the hands of the
party, standing upon his trial for the oflence ? The presumption
of law is directly adverse thereto. Innocence is always sup-
posed, until guilt is duly established. I take the larceny of pa-
per bills of credit made tenderable by particular laws, to be
perfectly analogous to the present case: so of bank notes. Nu-
merous indeed have been the instances of indictments for felo-
ny in stealing such bills, laying the same in money numbered,
both before and since the American revolution; and yet it was
never thought necessary, that notices should be given to the
prisoners to produce upon their trials the bills which they were
supposed to have stolen. The ground of guarding against
misrepresentation, would equally hold in all those instances;
but it will not be asserted that the rule contended for has ever
obtained an application in any of them. I conclude therefore,
that the admission of the parol evidence in the present case,
was strictly n-gular.

The next question is, whether the stealing of one bill obliga-
tory is a felony punishable by the act of Assembly passed April
5th 1 790. I fully assent to the established principle, that penal
laws are to be construed strictly, and that they are not to be
carried beyond their letter. 1 also am disposed to concur with
Dr. Burn^ who asserts, when speaking ol the stat. 10 Geo. 3. c.
l8. Tthe words whereof are, " if any person shall steal any dog
" or clogs of any kind or sort whatsoever, he shall forfeit for the
" first offence a sum not exceeding 30/. nor less than 20/.") that
it might be doubtful, whether upon this act it is penal to steal a
bitch, {bj Whether the opinions of the judges on the stat. 1 Ed.%..

(fl)4 Burr. 2489. {h) 1 Burn's Just. 497.

OF PENNSYLVANIA. 279

f. !2. which declared "that no person or persons convicted of 1808.

" stealincr horses, mares, or eeldiners, should be admitted to the '^'

^ , ' . . , . Common-

" bent'fit ot clergy," (\vho conceived that it was not sufficient to wealth

exclude from clergv anv person who should steal one horse, v.
mare, or gelding,) was grounded on the words of the statute be- ^'^ssin*
ing merely in the plural number, according to Sir William
Blackatonc^ (a) or that they entertained doubts thereon for the
reasons assigned by Lord Hale, (V) it is immaterial to deter-
mine. Dr. Burn assigns what he calls a plain reason for it.
" What a man has a right to (as his life, liberty or estate) by a
" clear and undoubted law, shall not be taken from him by a law
" less clear and certain." It is sufficient to state that our books
teem with authorities, shewing that penal statutes shall not be
construed beyond this strict letter. It must be remembered, says
Lord Hale^ (c) that the party indicted must be brought within
the vert/ letter of the statute. But according to Lord Mansfield^
(d) there is a great difference between bringing a case within
the equity of an act where it is not within the words, and taking
a case out of the meaning of an act by an equitable construc-
tion, where it is within the words: the first ought never to be
done in a criminal case; neither ought the second, if the case be
in equal mischief with others, clearly within the meaning of the
act. The plain words therefore of the fifth section of the act of
5th April 1 790, must govern our decision on this question. The
intention of the lawmakers must be extracted from their own
expressions. The whole must be read together. To every ex-
pression must be assigned its true meaning. Wc have no power
to insert and interpolate on the one hand, nor on the other to
drop and reject a single word, in order to make the act com-
port with our private sentiments. A rational construction must
be formed on the trjiite ensemble^ according to tlie apparent in
tention of the legislature as expressed by themselves.

So far then as the s<ction applies to the case under conside-
ration, it will read thus. '' Larceny of bills obligatory shall be
punished in the same manner ^ as larceny of any goods or chat-
tels." Of the proper signification of the term antj^ there is no
dispute. Its natural sense seems to be settled by («) judicial de

(a) 1 Bl. Com. 87. (c) 2 Jl Jf. 1'. C 344.

(A) 2 H. H. P. C. 56.5 U) 2 Kau'i Cro'iiin Lav:, 59?.

Messin-

OEK

280 CASES IN THE SUPREME COURT

1808. cisions, which we are not at liberty to dissent from, unless they
^onmioiv^ flatly contradict our ideas of right and wrong. It is admitted
wealth that any is the converse o{ none. But it has been strenuously
■^'' urged by the defendant's covmsel, that the word any in the close
of the section only relates to the punishment, and that it cannot
amplify the preceding descriptive plural words. These cannot
in mv idea with propriety be termed descriptions of the offen-
ces; they contain an enumeration of certain choses in action,
which are considered as mere evidences of debts or duties,
having no intrinsic value in themselves, and which the lawgivers
have made the general subjects of robbery or larceny. It may
well be asked, if we should not be guilty of a palpable violation
of the terms of the law, by adhering to the construction that
the stealing of one bill obligatory to any amount whatever is
no larceny, and that the stealing of two or more bills of an in-
ferior amount is larceny? The mischief intended to be guarded
against, is precisely the same in both instances. Besides, are
all the words of the law satisfied by such narrowed construc-
tion? " Larceny of bills obligatory shall be punished in the
*' sayne manner as larceny of any goods or chattels." The
stealing of one single specific article is larceny and punishable
as such; and by making the larceny of bills obligatory punish-
able as thefts of any other personal property, the legislature
have both in terms and substance enacted, that the stealing of
one single specific bill is also larceny. This appears to me to be
the true meaning of the fifth section of the act collected ex
visceribus. I cannot think the present case a casus omissus; and
upon the whole, I am constrained to say that the defendant
might legally be convicted of stealing the bill obligatory laid in
the indictment.

Smith J. concurred.

Brackenridge J. This was an indictment under the act of
Assembly which provides " that robbery or larceny of obliga-
" tions or bonds, bills obligatory, bills of exchange, promissory
" notes for the payment of money, lottery tickets, paper bills of
^' credit, certificates granted by or under the authority of this

(a) Leach. C. L- 1. HasscPs case. 2 Easfs C. L- 598.

OF PENNSYLVANIA. 281

" Commonwealth, or of all or any of the United States of Ame- 1808.
*•' rica^ shall be punished in the same manner as robbery or lar- Qq^^j,^^^
" ceny of miif goods or chattels.''^ The securities specified in wcidth
the act, take their identity much more from the writing than v.
from the paper upon which the writing is made; and it became " it-ssiN-
necessary to establish the written instrument by evidence ot
the contents. Evidence was offered of the cont^^nts by parol.
Exception was taken that no evidence could be given of a
written instrument, short of the writing itself, where it was
in the power of the part\- to produce it; and if in the power of
the adverse partv, not unless notice had been given before
the trial to produce it. The charge laid in the indictment,
one would think, in this case would have been notice sufficient
to supersede the necessity of any other notice, taking away all
pretence of surprise on the part of the prisoner by the evidence
offered; more especially as this had been the second or thuxl
time of trying the same fact, and on which trials this evidence
had been offered, and it did not appear that it had been except-
ed against. The exception of not having given notice, was a sur-
prise upon the prosecution. Under these circumstances it would
seem unreasonable that the accused should avail himself of it;
and I can have no hesitation in thinking that this itself would
take the case out of the rule, with regard to notice, supposing it
otherwise to apply: but to examine it independent of this cir-
cumstance, let us see whether it is a case which required notice
to the accused, in order to let in the evidence.

It would seem an absurdity to expect the accused to produce
a thing which he was alleged to have stolen; or to say that we
should not establish the identity but I)y the thing itself: that we
should not prove the value or the colour of a piece of cloth,
until notice had been given to produce the article. ''Take notice
" that pi oof will be given of the Ixiy horse charged in the indict-
" ment, on your refusal to produce him at the trial;" or, " take
" notice that you produce that paper at the trial, with stealin{^
" which you are charged, otherwise evidence will be given of its
" contents." I take it that it would be a sufficient answer to the
exception, that it is inconsistent with the charge of feloniously
taking, to suppose that the accused would furnish any evidence.
It is presuming tliat he has a thinj^ in his possession, which he ir,
charged with stealing. I admit there is no difference b tweeii
criminal and civil cases in this respect; and I take it that in an

Vol. I. 2 N

^Iessin-

GER.

2S2 CASES IN THE SUPREME CUUUT

1808. action of (Iclimie^ or trover, or replevin, where the phiintiff goes
Ti~"~~~for u specific -writing or identical paper written upon, the decla-
v.ealth ration is suiHcicnt notice that it is considered in the possession
of the defendant, and that evidence inferior to the writing itself
will be given of its contents at the trial. But here we arc
brought u]5 by an authority, that of Lord Kcnyon^ in an action
of trover, ■where this inferior evidence was offered and over-
ruled. It is the case of Coxvan v. Abrahams- ct al. 1 Enp. N. P.
50. It would seem to be directly in point; for according to
the report, it was an action of trover for a bill of exchange,
which had i)een picked out of the pocket of the plaintiff's clerk,
and traced to the possession of the defendants. The declaration
stated the bill of exchange, describing it as drawn and indorsed.
The plaintiff proved the possession and loss of the bill, as de-
scribed in the declaration. The defendants objected to the go-
ing into any evidence respecting the bill as set out in the decla-
ration, unless notice had been given to produce it. For the
plaintiff it was insisted that it was sufficient to give evidence of
anv instrument which was his property, as described in the
declaration, and which had tortiousiy come to the defendants'
possession; that the plaintiff could only be called upon to prove
the averment in his declaration, which he did by the evidence
offered, which described the bill of exchange in the defendants'
possession, as laid in the declaration. Lord Kenyoii said that
the objection was founded on a rule of law not to be departed
from, namely, that the best evidence the nature of the case ad-
mits of is always to be given; that wherever there is written
evidence, parol evidence of its contents is not the best evidence,
and is thtrefore inadmissible; but that if the party in possession
of the written evidence v.ill not produce it when called on, that
then inferior evidence is admitted, that is, parol proof of its
contents; and that the plaintiff in this case was attempting to
give parol evidence of the contents of the bill of exchange,
without having given any notice to the defendant to produce
the original, which he could not do. On a motion for a new
trial, the Court of King's Bench concurred in opinion.

In tile above case the declaration stated the bill of exchange,
describing it as drawn by John Harrison^ on Robert and Thomas
Harrison^ in favour of Thomas Bentli/^ and by him indorsed to
the nlaintiff in the usual form. This is to be remarked; as in a case
where the opinion of Lord Keuf/on was afterwards quoted as an
authority before the Court of Common Pleas on this veiy point,

OF PENNSYLVANIA. 283

,it was put upon the particularity of the description of the bill 1808.
of exchange in the declaration; and I think it is not difficult Comnion-
to see that the report of Espinasse is imperfect, and that the wealth
ground of the decision of Lord Kenyan does not sufficiently '^•
appear; or that the Court of Common Pleas are astute in dis-
tinguishing and making an apology for his decision. For it
would seem to me, the more particular the description, the less
reason for notice of what was intended to be proved by evi-
dence on the part of those who had not the possession, and
could not be expected to produce the writing itself, but must
offer inferior evidence. The case to which I refer, is that of
Buchvr et al. v. Jaratt. 3 Bos. and Piil. 143. It was trover for a
certificate in writing of the registry of a certain ship or vessel
called the Salem^ which said ship or vessel had been registered
by the plaintiffs. At the trial it appeared that the defendant,
having been emploved as broker in the sale of the ship by the
plaintiffs, had got the certificate of registry in question into his
hands, and refused to deliver it at their desire to the person
who had purchased of them, so as to enable them to obtain a fresh
certificate of registry. To prove that such a certificate had
been granted, an officer of the customs was called, who pro-
duced the original registry from which the certificate was
copied. This evidence was objected to on the part of the de-
fendant, because no notice had been given to the defendant to
produce the certificate of registry itself, without which it was
insisted that the plaintiffs could not resort to any seconclarij evi-
dence of the instrument which they sought to recover. The evi-
dence however was admitted, and the verdict was for the plain-
tiffs. A rule nisi for a new trial was granted, and tiie case ol
Cowan V. Ahraliams relied on ; but the rule was discharged b}- the
unanimous opinion of the court. [His Honour here repeated
the arguments and o])inions in the case oi Buchvr v. yaratt^ and
referred particularlv to the intimation of the court in answer to
Serjeant Be-sty who argued for the new trial, that it had not been
the practice, and v.as not necessary upon an indictment for
stealing a written instrument, to give notice to the prisoner to
produce the Instrument, before any evidence could be received
of its contents.]

If we examine the cases In tlie books whicli have been refer-
red to, or which bear upon the point, we shall find that they an-
cases of evidence of something in the possession of the party

284 CASES IN THE SUPREME COURT

1808. originally or which had conic to his possession, and of which
'P"~~~itdid not necessarily ioUow that evidence would be offered on
wcahh the trial; as in JSlolton qxd tarn. v. Harris. 2 E.sp. N. P. 549. 1 his
'• was an action of debt for a penalty under the statute, for killing

iF.ssiN- g^^^g^ 'YXxc defendant pleaded the general issue, and relied that
he was qualified by estate to kill game. To prove this qualifi-
cation, he gave in evidence the payment of rents by scviral
persons who held houses under him, to the extent of the quali-
fication; but all of them appeared to have first become tenants
to him from Blichaetmas 1796. The title under which he claimed
this property was (as appeared by the receipts made) a convey-
ance from a Mr. Felloxves^ whose niece he had married in the
March preceding. The counsel for the plaintiff contended, that
the conveyance was fraudulent, and done with a view to give
him a fictitious qualification to kill game; and that it would ap-
pear so by the deed of settlement made on defendant's mar-
riage. To prove the circumstance they called Mr. Walford^ who
was attorney to the defendant; but not being able to get the fact
from him, Garrotv proposed to give in evidence the memorial
of the conveyance as registered, and contended, that as the deed
was in the hands of the defendant, such inferior evidence
would be sufficient. Lord Kenyon asked if notice to produce it
had been given; and being answered in the negative, ruled that
no notice having been given to produce the deed, no proof
whatever of its contents was admissible by any other evidence.

It did not necessarily follow, nor indeed can we say that it
ought to have been expected by the defendant in this case, that
the allegation of fraud would be set up, and that evidence would
be offered of the memorial of the conveyance, or of the convey-
ance itself in this case. It had become matter of evidence in
consequence of evidence that had been given, rebutting or re-
pelling evidence in the cause, all which may be unexpected by
the person against whom it is produced.

I take it therefore that in the case before us, on general prin-
ciples, and under the circumstances of the case, the evidence
was admissible.

The reason in arrest of judgment comes now to be consider-
ed; that the act of Assembly specifies the robbery or larceny c«f
obligations or bonds, bills obligatory, &c. but not of a bill, which
was the charge in the indictment in this case. There could be
no good reason with the legislatuz-e for not making the larceny

OF PENNSYLVANIA. 285

of a single bill punishable; because the larceny of a single bill 1808.

of a large amount might be an equally valuable chattel with (^Q^^j^^on-

many bills of a smaller amount. But if it is a casus omissus^ a. wealth

matter not made larceny by express words, or necessary con- t'-

struction, no power inferior to the legislature can make it lar- -1^^^^^'

ceny. For with equal reason it might be said that one horse

might be equal in value with two; nevertheless, a doubt arose on

the statute of 1 Ed. VI. cap. 12. sec. 10. which in the case of

a person attained or convicted " for feloniously stealing of

"horses," '" tikes away the privilege or benefit of his clergy;"

for a subsequent statute of 2d and 3d Ed. VI. cap. 33^ has this

preamble: " for as much as it is and hath been ambiguous and

" doubtful upon the words mentioned in one act of parliament,

" made in the first year ot the reign of our sovereign lord tiie

" king, whether that any person being in due form of the lav/s

" found guilty, or otherwise attainted or convicted, for feloni-

" ouslv stealing one horse, gelding, or mare, ought to be admit-

*' ed to have or enjoy the privilege and benefit of his clergy and

"• sanctuarv; therefore it is declared and enacted by the king,

*' &c. that all and singular persons feloniously stealing or taking

" any horse, gelding, or mare, shall not be admitted S:c.; in like

" manner and form as though he or they had been indicted for

" felonious stealing of two horses, two geldings, or two mares.''

By Lord Ha.'r, 1 PI. C. 365. the doubt was not singly be-
cause the statute of 1 iTfl'. VI. was in the plural number, '■'■/lorsc-s.
'■^tnares, or geldings;'''' for then it might as well have been a doubt
whether upon the statute of 23 Hen. VIII. cap. 1. he that had
v/ilfuUy burned one house should not liave had his clergy, be-
cause the words in that statute are in tlie plural number, dwell-
ing houses orl)arns. But the reason that made the scruple v.as,
liecause the statute of 37 //. 8. cap. 8. was expressly penned
in the singular number, " if any man would steal any horse,
" man; or fillv:" and then this statute of 1 Ed. \'I., thus vary-
ing the number, and yet expressly repealing all other exclusion?
of clergy introduced since the begitming of Jlonij 8., mad«.
some doubt whether it were not intended to enlarge clerg\-
where only one horse was stolen. To remove thisdoul.it the sta-
tute of 2 and 3 Ed. VI. cop. 33. was passed, whereby clergy is
f-xcludcd from him that steals one horse, gelding, or mare.

The doubt would seem to have originated in tlie humanity
of the Judges, feeling the sanguinary niUure gf the code whi(!h

OER.

0-86 CASES IN TiiE SUPREME COURT

1808. ^^^'^' ^^^^ *o execute, and knowing that the benefit of clergy haci

7i been a means of softtninp it by Icoishitive extension, or judi-

Common- • tt r i i n c v

wealtli cial construction. Hence we find that a small matter ot i-eaclmg

^•. would enable an unfortunate convict to pass in the courts for a
Messin- clerk, and to claim the privilege of clergy. It may have been
imder this impression, and from the singular circumstance of the
two statutes mpari materia varying the expression from the sin-
gular to the plural, that the doubt was excited. But it has been
correctly observed by the counsel in the argunaent, that in the
statute 23 //. 8. cap. 1. it is the 'robbing of any churches,
'burning of a;»/ dwelling houses, that is excluded from clergy,*
which Lord Hale does not take notice of, but omits the word
any which is used in the statute, and is a distributive nu-
meral word, pointing to the singular of houses, barns, or
churches. If there is any force in the word any^ it is certainly
an omission which weakens the analogy of his reasoning. That
there is force in it cannot be denied. In the Anglo-Saxon the
word an means one; thence ane and a7iy. In HassePs case,
the indictment under the statute 2d Geo, 2. c. 25. § 3. (which
enacts that " whoever shall steal or take by robbery any exche-
''quer bills, &c. shall be deemed guiltv of felony,") charged the
stcalhig one single bank note. Before the prisoner entered on his
defence, it was submitted to the consideration of the court, that
the subject of the larceny was not within the terms or intention
of the act of parliament; that penal acts were to be construed
with great strictness, and could not be made to aflfect the life, li-
berty, or property, but according to the literal import. To which
it was answered that they must be construed I'easonably, ac-
cording to the common sense of mankind, and the apparent
intent of the legislature; that the words were " whoever shall
" feloniously steal any bills, &c." and then it goes on to say,
" notwithstanding any of these particulars may be termed in
'• law a chose in action;" which plainly shews that it was the
Intention of the legislature to make the stealing of a chose in
action, which one single bank note is, felony; that the words of
2 and 3 Ed. 3. c. 33. were horses, &c. and not any horses, and
yet it was only doubted whether it did extend to one horse; that
by 22 and 23 Char. 2. c. 7. it was made felony to burn any ricks
or stacks of corn, and yet it had never been doubted but that
rhe burning of one barn was ftlonv within the <^tatute.

OF PENNSYLVANIA. 287

The Court, after consulting upon the subject, declared that igns
it was their clear and unanimous opinion that there was nothing ~
in the objection. Whether it was the word am/ that had helped wealth '
them out, does not appear by the report. But it seems to have v.
been the idea that it was ex vi termiyii^ or by the effect of the Messix-
word any^ that the plural was narrowed to the singular, or that ^'"^^
a singular was considered as within the words. "■ Though the
" statute mentions bank notes in the plural number, yet the
'•*• stealing of a single bank note is within it, particularlv on ac-
'' count of the words which follow: "notwithstanding any of
" these paiticulars may be termed in law a chose in action."

The effect of the word any in the construction of the statute
against selling pretended rights and titles, is noticed in Far'
fridge's case, 1 Plow. 86. Hales J. says that a pretended right
and title in the singular number is within the penalty of the sta-
tute; for the plural number contains in itself the singular number
and more; and if one right or title should not be contained here,
the effect of the statute would be set aside; and also every right
or title is contnined in the last branch by this word anij^ and
therefore for this reason a right or title in the singular num-
ber is within the statute.

In the act of Assemblv in this state entitled an act against
removing of land marks, 1 -SV. Laws. 3. the word any is used:
" That no person in this province, or counties annexed, shall
''^cut, fell, alter, or remove, any certain boundary tree, or other
" allowed land mark." And in an act entitled an act against ef-
facers of charters, the word any is used : "• That whosoever shall
" forge, deface, corrupt, or embezzle, any charters, gifts, grants,
" bonds, bills, wills, conveyances or contracts, shall" ike. In the
first act the word any is used with the singular word tree or
land mark; and in the second art with the plural words chart-
ers, gifts, &c. indifferently. Would it not seem from hence that
the use of the word was not so marked by them as to be of
much import in construing their acts?

Hut if the word any is of such effect provided it is found
somewhere attached to the plural words or can be referred to
them, we have it here in the very same section and selfsam(.'
sentence in which the suljject of the larceny is specified, and
the penalty affixed: " Robbery or larcenv of obligations, 8<c.
" shall be punished in the same manner as robbery or larceny of
*' any goods or chattr-ls." That is, as robbery or larceny of any

^Iessin

GER.

288 fASES IN THE SUPREINIL COURT

1808. goods or chattels is punished, so shall robbery or larceny ot"
Tv^ , ,, ohlioraions, that is, of" any obligations. Such ellipses continuallv
wculth occur in ordinary speech; and the language ol' a statute is like
that of ordinary conversation, for it is drawn from it. I
Avould refer to popular phraseology in construing an act of the
legislature. " It is the office of the Judges to know the common
••' language of the people, and their common method of speak-
*' ing, and to adjudge upon them according to the common
'' course and understanding of the people of the country." 1
Ploxv. 169. 329. An individual giving notice by advertisement
that he meant to prosecute trespassers upon his orchards, gar-
dens, fields, meadov.s, &c. would think he had made himself to
be understood as cautioning against an entry on any one of
these; nor coull any person be reasonably supposed to under-
stand him otherwise.

But even on the ground of strict construction, I distinguish
materially between stealing obligations, and stealth of obliga-
tions. The word of (in the Gothic :vL\(i. Anglo-Saxon af) means
consequence, offspring. 1 Ep. Pter. 299. The word concern-
ing is used to explain it; we say of and concerning, and of
or concerning; so that larceny of obligations, means larceny
concttrning obligations, that is, that species of property which
comes under the head of obligations. This I take to be the
meaning of the words in so plain and obvious a construction
as to render them impossible to be mistaken; and notice of the
offnce to all whom it may concern, to what extent punishable,
is the principle which ought to govern the construction. I do
not think, therefore, it would be justifiable to arrest the judg-
ment in this case.

New trial refused, and judgment
for the Commonwealth.

OF PENNSYLVANIA. 289

1808.

~lb289 HaRTZELL against R E I S S . Saturday,

11 238; Marcli

In Error. 26th.

108 75 1

HIS was a writ of error to the Common Pleas of iVorM- Under the

pK-aofpay-
ampton connty. me, u to a

On the \2x.\\oi November 1793, Hartzell^ TisshtviK oi North- scire facias

ampton county, sold a tract of land which was purchased by juj^piei^t^

jReiss, who paid him part in cash, and for the residue gave histlie defen-

bill penal with a warrant of attorney. Judgment was confessed |",p i^^?^.j.

on the 26th of Au!(ust 1795. A scire facias to revive the judg-dence, tliat

ment was brought to April Term 1803, to which J^eiss appear- executed the

ed, and pleaded payment with leave to give the special matter ^o" J •'^"'1

in evidence. The cause was continued until March 1806, when^|' „\^,j',i(.l,

a motion was made on behalf of the defendant to open thethcjudg'-

judgment, for the purpose of letting in a defence, and in the confessed,

mean time to stay proceedings on the scire facias. This motion t'le phiintifF
, , ' ,,,, ■ r ■ 1-1 pioiTiisedlo

was refused by the court. 1 he scire Jacias accorcnngiy camccanccl it

on for trial in Atiinist 1«<)6, when agreeablv to notice the de-"Po"iin

rr 1 I- 1 • 1 ' I I n event which

lendant ottered one ol the witnesses to tlie penal bill, to prove |,.,s occur-
that, previous to its execution, it was mentioned by both parties'"^'' |*"\<^^-

. . tlie iud"-

that the above mentioned tract of land was subject to a mort-meiit. *"

gage to one James Williams^ and tliat the bill was to be given
only to secure the pavment of that mortgage; that Hartzell at
that time declared, that whenever Reiss should pay oft' the
mortgage, he would cancel the bill; that upon this assurance,
Reiss executed it, and that on the 30th April 1802, Reiss had
been compelled to pay the mortgage to IVilliaiiis. To this evi-
dence the jjlaintin's counsel objected, but the court overruled
the objection; whereupon a bill of exceptions was tendered and
sealed, which was nov/ brought up by the writ of error.

Sitirrr(roes and lui^crsoll for the plaintiff insisted that the
evidence was inadmissible upon this principle, that the defen-
d:int cannot plead an\' matter to a scire facias on a judgment,
which he mi;^lu have pleaded to the original action; 2 'li(ld\s
Practice 104G; and that its being a judgment by confession
did not affect the principle. Midilleton v. IJill (a). In Bush \.
Ctoxver (A) which was a scire Jacias on a judgment by warr.int

(a) Cro. El. 58P. (f>) Cat. Tcmf: //<mh.: 22".

Vol. I. 20

O90 CASKS IN THE SUPREiME COURl

1808. ot" attorney, to which the defendant pleaded the statute of
iTautzell'^'''^^'^' //a7<'/t7;i.9 for the defendant relied on that ground, and
7'. said that the reason why the plea was refused in MidiUft07i v.
Reiss. ///■//, was because it might have been pleaded before the judg-
ment; but the defendant in his case had never had an opportunity
to plead it. Lord Hardxvicke however said, that the true way was
to move the court to set aside the judgment, but that the plea
could not be maintained. So in Cooke v. Jones (a), where the
court had granted a rule nisi to vacate a judgment confessed,
and to stav proceedings on the scire facias^ upon an allegation
that the consideration upon which the warrant of attorney was
obtained was usurious. Lord Mansfield said, " the defendant
" is without relief unless the court interposes; he can plead
*•' nothing in bar of the scire facias., which he might have
" pleaded in the original action;" and the court, therefore,
ordered the rule to be enlarged, and an issue to try whether
the contract was usurious. Here the evidence went to shew
that nothing was ever due on the bond, and it would of course
have been competent to the defendant to shew it in an action
on the bond. The proper mode was by motion; and if the
defendant deferred that for ten years, he has no cause to
complain.

Rarvle for the defendant answered that neither the principle
nor the authorities applied to the case. In Middleton v. Hill.,
and in Bush v. Gower^ the plea was the statute of usury. It
%vent to the original contract, which might have been shewn
upon the action, and therefore the only way of getting at it, was
by a motion to vacate the judgment, as in Cooke v. Jones. But
the object of the evidence here, was to shew an equitable de-
fence, arising out of facts which did not exist at the time the
judgment was entered, and could not have been pleaded to the
original action, even if action had been brought. Of course the
rule of pleading is out of the question. The only point is,
whether upon a scire facias., a defendant may not give in evi-
dence facts arising since the judgment, to shew that the plain-
tiff is not entitled to execution. This is the first opportunity we
have had, not because the judgment was confessed, but because
the defence did not exist till since that time. Our motion to
the court was delayed by the plaintifl', who suffered his judg-

(o) Cuvp. 727

OF PENNSYLVANIA. 29 i

aient to sleep eight years; and it being to their discretion, we 1808.
were forced to submit; but we are not confined to that applica-TT" —
tion, either by the rules ot law, or the practice in Pennsijhania.

Reiss.

TiLGHMAN C. J. delivered the opinion of the court.

The plaintiff in error, who was plaintiff in the court below,
brings this case before the court on a bill of exceptions.

The plaintiff's objection to the admission of the evidence is
founded on this principle, that nothing can be pleaded to a scire
facias in bar of execution, which might have been pleaded to
the original action. The principle is undoubtedlv true; but
how does it bear upon the case before us? The original judg-
ment was regularly entered; nor had the defendant any thing to
say in bar, if the plaintiff had brought suit on the obligation in
the usual manner, instead of entering judgment by confession,
by virtue of the warrant of attorney annexed to it. The cases
cited by the plaintifFs counsel, differ from this in one material
circumstance. In those cases, the matter relied on by the defen-
dant would have been a bar to the action, at the time the judg-
ment was entered. In this case, the defendant had no plea of
which he could avail himself, till near seven years after the
entry of the judgment. Why then, when he is called on to say
whether he has any thing to allege against issuing execution,
may he not shew, that in consequence of something which has
taken place since thejndg-ment, the plaintiff's right to an execu-
tion no longer exists? It is to be remarked, that an equitable
defence may in this state be pleaded in a court of law, which is
not the case in En/fland. 1 very much doubt, whether t/iere the
defendant could have had any relief in a court of common law.
But certainl)', if he had filed his bill in equity, and made good
the matters alleged by him in this bill of exceptions, he would
have been relieved from the judgment. Upon this ground,
therefore, it appears to me that he may plead these equitable
matters to a scire facias on the judgment. It has been objected,
that his proper remedy was by motion to the court below, to
open the judgment; but supposing that he might have- had that
remedy, it does not follow that he may not avail himself of the
same defence on a plea to the scire facias. And this latter mode
ought not to b<; discouraged l)y this Court; because the j)arties
labour under a very gi-eat difficulty in applic ations to the court

i?92 CASES IN THE SUPREME COURT

1808. below, In motion. Those motions heinj.'j an appeal to the d'tscri''
II » n r.. , ''5'^ o^ t'^<-' t^oiiit, I do not know that the decision can be ques-
tioned on a writ of error.

Reiss.

Upon the whole, I am of opinion that the evidence was pro-
perly admitted in the court below, because it tended to prove
matters in bar of the ])laintiff's execution, which had arisen
after the judgment.

Judgment affirmed.

lb 292

.niturdax. Lane against Shreiner. '-" ^"i

Maicl) l-eth.

The dav on T^ ^^^'^ ^^^^ '^ verdict was given for the plaintiff in the Cir-
viiich the J- cuit Court of Lam aster county on Ttiesdai/; and on the
\q^tI ^\s com- '^^^^"'^'^if following, amotion was made by the defendant for
piucd as iinea rule to shew cause why there should not be a new trial.
<li\ s which That Court however being of opinion that the motion
are allowed \vas too late, because the day on which a verdict is given
a new trial, sbould be included in the four days, refused the rule; and the

defendant appealed to this court.

The decision of the Circuit Court was affirmed without

argument, upon the authority of Biirrall v. Dubloh. («)

Hopkins for plaintiff, E. Tilghman for defendant.

(r/) 2 Dall. 22'J.

OF PENNSYLVANIA. 2V3

1808.

Calhoun for the use of Fitzimmons and another Scmmhiy,

. March 2b\h.

against The Insurance Company of rcnnsylvania.

COVENANT on a poficy on goods on board the brig yohii^ if a policy
Barker master, from Charleston South Carolina to Cadiz, "",'^'^,^^2'
15000 dolls, at 15 per cent. The foot of the policy contained l;ukli)liia
the following memorandum: " This insurance is decku-ed to be ^Ja;.pa,"f/of
"• made on sugars not discharged from on board the above ves- AnKiican
" sel at Charleston, where she brought them Irom ^id'^^'^if^'^i^^toll^ovcd
" Warranted bv assured to be American property, to he proved, [f required in

.,.',.. 1^1 I ■)■> ' tilts city and

" if required, in this citij, and not elsewhere. ^^^^ ^/^^.

Upon the trial of the cause before Smith J. at iV/.vi Prius'^^liere,' the
in Julif 1807, the material facts in evidence were these. On the ^^^jtieli to
8th '^fiine 1800, the folm sailed upon the voyage insured from vi'i'li'^'^^-^ tl'C
Charleston, where at that tmie the blockade ot Cadiz was not ^^avi-anty not
known. On the 16th Julii as the vessel was steering for Cadiz, "^^\y "gainst.

,. / , , . , , a fbreiu-ii

and at no great distance trom that port, the captam was brought p,„ulcnina-

to bv the Hector, one of the squadron blockading Cadiz under""" •'■' ''"-
.,■.,,,., , /Of- i-micx' prc-

Admiral linker ton, was warned not to enter Ladrz on account .^,,^,^._ \^y^x^

of the blockade, and was taken on board the Hector with his a};:<nibt a

papers. On the same day he was carried on board the admiral's j,,,,, );„. .j^^^

ship, but was afterwards returned to his own vessel, from which "*^* "•' "'"'«-

, ,,11 I 1 /v 1 • I ^'"" ''' ""'

the mate and four hands were taken out, and an olhcer and eight iigcnts (lu-
men put on board of her with orders to stay by the fleet. On ""K /''^\^?.\-
' . uj(c,'r A .ucli

the 26th Jiilij the brig's papers were indorsed " warned not to tiic ncuirali-

" enter Cadiz or St. Lvcar as they are Ijlockaded, hut has per- *) j'* aU. jrcd

... ,> , , to have been

^'' mission to go to am/ other port. Szvijtsure, fulij 26tli 1800. ,;,,(;.i,f.ti.

B. Halloivell, Captain of tlie Srviftsure, one of the ships of the A ussel

1- -I i- I '*•"'' "'^"'

'' blockading squadron;' i)ut there was no evidence ol tiiese pa- c;lia;., >xm\

pers having been at any time in Captain Bark(r\s i)ossession *"' '^•'^'"-
after the IGih July, or that he saw them after that date until „„tii.i; of it's

bcinj;- in a
stale of
l)Iork:i(h', and within a sliort distance of the port is bidu^flit to by tlic l)iockaiHn{j
hcpiadroii and warned nr)t to enter on account of tlie blockade; t!\e mate and four haixU
are taken out of her, and an olVicer anil ei;;ht men put on board w itb <>r«lcrs to slay b> tlic
fleet. Ten <lays afterwards the captain is taken out of her and carried tC) the Admiial of
the squadron wiio savs to liiui, " We ha\c llioujjhls of .si-ttinn" you at liberty, and in ease
" we tlo, wliat ])i)ii will \oh i)roceed for;" '1 be ca|)iaiii replies, " In cae I reri ivy no
" new instructions 1 siiall follow my old ones." '* 'i'bat 1 suppose v, ill be for Cudiz!"
" Certainly, unlcs.s I liave new orders." Tliis i« not an attempt lo enlei-, and liier. luic no
breach of bh)ckade .'Jj//,rrr. Whether any declaration of;in intention to enter, amounts to
an fiitrjtifit^

Ijy4 CASES IN THE StPHEME CuGRT

1808. ^^'*^> ucrc exhibited in the Admiralty at (7i/>/Y7//(/;-. 1 he mate
Calhoun ^^^^'^^''■"*' declared on his examination in that court, that after
^.. they had been in possession of the British about ten days, the
Ins. Co. papers and command of the vessel were offered to Captain Bar-
Venn, kcr, which he refused, because his vessel had been taken and
his hands unjustifiably removed. On the 27th of [fuly,, until
which day the Captain had been detained on board the brig, he
was again taken on board the Admiral, who addressed him
thus; " We have thoughts of setting you at liberty; and in case
" we do, what course will )ou steer?" or " what port will you
*' proceed for?" Captain Barker replied " In case I receive no
" new orders," or " new instructions, I shall follow my old
" ones." " I suppose that will be for Cadiz^'' said the Admiral;
to which the Captain answered " Certainly, unless I have new
" orders." Sir Richard Bickerton then said " That is sufficient,
" I shall send you to Gibraltar^ for adjudication." He was ac-
cordingly sent to Gibraltar^ where the vessel and cargo were
libelled, and on the 2Gth Ausfiist 1800 the decree was pro-
nounced in the following terms: " The Judge having heard the
■■' said claimant together with the sundry examinations taken in
'' preparatoiy in the cause, and the papers and documents
" found on board said brig at the time of the capture, and de-
••' iivei'ed in to the register upon oath, and having further heard
'■'• the parties &c. rejected the claim, and declared the brig to
"■• have been cleared out for Cadiz^ a port actually blockaded by
" the arms of our sovereign lord the king; and that the mas-
" ter of the said Xrcx^ persisted in his intention of entering that
■^ port, after warning from the blockading force not to do so,
" in u direct breach and violatioji of the blockade thereby noti-
'■'■ fled; and pronounced the said brig and cargo by virtue there--
'•^ of or otherrvisc subject and liable to confiscation, and con-
*■' demncd the same as g-ood atid larrful prize to our sovereign
" lord the king."

The interest of the plaintiffs who were American citizens, and
a regular abandonment, were proved or admitted; and the jury
found a verdict for a total loss, subject to the opinion of the
rourt upon the three following points;

1 . Whether the decree of the Court of Vice Admiralty
r.f Gibraltar was or was not conclusive evidence of the facts
set forth in it. And if conclusive, whether it discharged the
underwriters.

OF PENNSYLVANIA. :293

"2. Whethei- the conduct of the captain m the bay of Cadiz 1808.
in relation to the blockade, did or did not amount to a breach Calhoux
of the warranty in the policy. v.

3. Whether the captain's conduct amounted to barratry, I"s. Co.
with liberty to move for a new trial on the ground of the ver- "cnn.
diet being against law and evidence.

A motion for a new trial was accordingly made; and this
question and the points above stated were argued by Dallas
and Levif for the plaintifls, and by Raxvle and Lexvis for the
defendants.

1. On the frst point the plaintiff's counsel conceded the
principle that the decree of an Admiralty Court' binds the
property for ever, as in Hughes v. Cornelius; (a) and that a
condemnation us \ir\xt g-etiet-alli^y Saloucci y. Woodmass (b) or as
prize, assigning for cause such an act or omission as is against
the law of nations or a treaty between the nations of the cap-
tor and owner. Carrels v. Kensington^ (c) or as enemies' pro-
perty gcnerallif^ or enemies' property for the want of neutral
documents, Gei/er v. Aguilar^ (d) is conclusive upon the war-
r:Lnty of neutrality. But they insisted that it is not conclusive
upon the warranty where the sentence is ambiguous, Bernardi
V. Motteuxy (e) or when it is founded upon an ordinance
against the law of nations, Bird\. Appleton^ (J) or where the
grounds of the sentence contradict the conclusion, the condem-
nation being as prize, Pollard v. Bell, (g) or contradict a treaty
between the nations of the captor and owner. Price v. Bell, (li)
In the present case the grounds of the sentence are facts which
even under the law of nations are not a breach of blockade, and
which certainly do not constitute that offence under the treaty
between the United States and Great Britain^ as will be shewn
under the second point.

But whatever may be the conclusiveness of the sentence in
a cfjmmon case, the special clause in this policy prevents that
effect altogether. It was introduced solely with that view, and
it has been construed to have that operation by Judge Wash-

(fl) Shuxv. 2.'52. (r) Dous- 575.

ib) Park. .>62. (/) ^ D.lJfE. 5C2.

U) % D.i^f E. 2.W ig)^ Disc £.434.

frf) 7 n^St y. r-Hl (/,> l Knit 663.

296 c:ases in the supreme court

1808. ingtO)i in Calhraith v. Grade decided at J/;/// sessions 1805. (u)
Cai holV ^^ n^^y 'j<-* argued that the design of the clause was merely
V. to allow a in-ooi' of propcrtif, strictly speaking, in opposition to
Ins. Co, the sentence; and that a condemnation for unneutral conduct,
TViiii. or for such acts as amount to a forfeiture of neutrality, is left to
its legal operation. But considering what the sentences of Vice
Admiralty Courts had been, such a construction supposes the
assured to protect himself against one in a hundred of the
probable acts of injustice of those courts, aind to leave himsell
exposed to the the other ninety nine. The argument moreover
rcsidts in this dilemma. If the sentence does not decide the
question of property, it does not forfeit the warranty; if it de-
cides the question of property, the clause applies.

2. The facts being let in, they negative a breach of the war-
ran tv. Thev do not shew even an ititcntion to break the block-

((/) Calbrai TH 1 Upon tlie ojjeninij of" this cause on tlie defendant's
v. > side, tV»e piaintirt", the assured, objected to tlie reading

Gracie. J of the ])roceedings in the Court of Vice Admiralty in
^N'fTj Providence, in consequence of a clause in the policy. The property in-
sured was warranted Avwrican property, with this proviso, That if the same
shall be called in c/uestitm, it shall be si(_fficicrit on the part of' the assured to prove
in any Court of the United States that the property is American.

After argument upon the point, the opinion of the Court was delivered by
AV'asui NG'i ox J.

Tliis is a new clause \vhich has been introduced into policies of insurance
by some underwriters within a few years past. The sooner It receives a con-
struction the better. To understand it we mu::t pursue the rule adopted as
to the exposition of statutes. We must find out w liat was tlie mischief it was
intended to remedy, and then the extent of the remedy. Tlie mischief was
that the sentence of a Foreign Court of Admiralty condemning a vessel as
enemies' projjerty or as lawful iirizc, was and is considered universally in
Kngltind, and has been so decided in some of the states, as conclusive proof
of that fact against the assured .so as to forfeit his warranty of neutrality;
and this too though he should be al)le to prove the falsity of the conclusion.
The remedy was to meet and correct this, which often in former wars, and
still more in those which have lately happened, was a crying evil. We have
all heard of the conduct of the West India Courts of Vice Admiralty, and the
shameful abandonment of all correct principles which has disgraceil their
decisions. The assured did not chuse that their property when really neutral,
and which they could prove to be so, should be declared ollurwise in conse-
• juence of a sentence of those Courts. But they never meant to go further,
and it would be improper to have done so. Tiiey are, riofi^ith^tandin^^ the sen-
tence, tti be at liberty to vindicate the truth of their warranty But the under-
writer may combat that fact by reading the proceedings of the Foreign
Coui I of Admiralty as evidence, but not as conclusive evidence. Indeed they
may often be essentially neressarj' to prove the loss.

OF PENXSYLVAXIA. 297

aje; for the language of the Captain, upon which alone the 1808.
captors and the Court of Vice Admiralty proceeded, though c^ljjovn
insidiously extorted, to furnish a ground of detention, and there- v.
fore accoi-ding to the case of the Jlercuriiis, («) entitled to pe- ^^^- Co.
culiar indulgence, does not when construed with the utmost
severity amount to such an intention. But an intention is not
a breach of blockade by the law of nations, or the treaty.

By the law of nations there must be an attempt to enter, or
there is no offence, Faitel B. iii. c/i. vii. iec. 117; and the great-
est extent to which constructive breaches of blockade have
bee« carried, is in those cases which treat the sailing' with in-
tention to break the blockade as an overt act, an attempt. (Z*) In
this case however both the ingredients of this kind of attempt
are wanting. In the first place notice^ which is implied in the
intention, and which the Captain never received until he was
detained by the squadron; and in the next place the act of sail-
inif^ which never was in his power after the notice was given.
The onlv case in which there is an intimation that an i/itaition
may break a blockade, is that of the Henrick and Maria (c) in
which the vessel was restored. There is at the same time in
that decision, something very equivocal in the words of Sir
William Scott; for in one place he speaks oi an adherence to a
first intention as subjecting a ship to the penalty; and in another
as though that would attach only where the Captain's conduc,t
amounts to an obstinate perseverance.

Under the treaty the case is still plainer. The 18th article
recites that " whereas it frequently happens that vessels sail for
" a port or place belonging to an enemy without knowing that
" the same is either besieged, blockaded, or invested, it is
*•' agreed that every vessel so circumstanced may be turned
*' axvaij from such port or place, but she shall not be detained,
♦' nor her cargo, if not contraband, confiscated, unless after no-
" tice she shall attain attempt to enter ^"^ (<-/) So far as the treaty
interferes with tiie genera! law, the latter must yield. 'Hie plain
unequivocal language of the former requires that there must be
an actual turninif aivaij^ and then an attempt^ before there is a
breach of blockade; and such has been the decision in N^eii-

(a) 1 Rol>. 70. (c) 1 Hob. 123.

(b) Columhia, 1 Rob. 130. (/) 2. U. S. Lav.-s. 4R4.
Vol. I. 2 P

Pcnn.

298 CASES IN TilK SUPKEMl-: COURT

1808. i'ork in the very case ol' ilie Columbia^ Liotardx. Graves., (ci)

~7r , " '~ and in Voa and Graves v. Vnttctl In.s. Co, (b) The indorsement
Calhoun _ ^ -'

X,, on the papers of 26th July 1800 shews of itself that there had
Ins. Co. been so far no breach of blockade, and on that day the vessel
was sent to Gibraltar., the Captain never having had his papers
after his detention, and never being told that he was at libert)'^
to depart and go elsewhere. The mate it is true savs the com-
mand was offered to the Captain, and that he refused it in con-
sequence of the delay and loss of hands. This was probably
hearsay, as the mate was one of those who were taken out; but
the facts were a justification to the Captain; the squadron
should have turned him away at once.

3. If however there was a breach of blockade by what is
called the obstinate adherence of the Captain to the inten-
tion of entering Cadiz., it was barratry. Judge Buller was of
opinion in Saloucci v. Johnson (c) that if a resistance to search
■was a forfeiture of neutrality, it would be barratrous; and there
is no doubt that the neutrality of a vessel and cargo is forfeited
by a breach of blockade. It is a breach of trust to the injury of
the owners, and it is necessarily ex vialcficio or malo animo., be-
cause it is illegal and certainly injurious to the owners. That
it is not for the Captain's benefit is immaterial; this is a mere
circumstance to shew fraud in an ambiguous case; but is not
wanting in a case where the law will imply fraud from the ille-
gality and the tendency of the act. Earl v. Rorvcroft. (d) The
breach of blockade is stronger than sailing out of port without
paying duties. Knight v. Cambridge., (r) or than smuggling,
Havelock v. Hancill; (y) for in each case there may be some
benefit to the owner; whereas here the act is fatal to his inte-
rests, and comes up to all the cases upon barratry. Vallejo v.
Wheeler^ {g) Robinso?i v. Ewer., (h) Hood''s Executors v. Nes-
bit^ (Ji) Moss V. Bijrom. (^)

For the defendants It was argued on the first point that the
admissions of the plaintiff's counsel put the question at rest in
the present cause; for the principle which they recognise, in

(«) 1 K. r. Cues in Error 7. (/) 3 D.isTE. 277-

(i)3 Cah,es^26, (^) Covjfi. 141.

(./) 8 East no. (/) 2 Da!i. ^37.

(e) 8 Mod 230. Oitft. 155. (^)6I3.fS'E. 3r9.

OF PENxVSYLVANIA. 299-

adopting certain of the English authorities is, that the decree 1808.
6f a Court of Admiralty is conckisive as to all the matters it (^j^lhoun
directly decides; those authorities proceeding upon no other v.
principle. There is as between the insurer and insured an- ^"s- ^o.
other consideration, always as material as the conclusiveness ot
the sentence, that is, whether the matters decided do or do not
falsify the warranty; zndhenct in Be mar di v. Motteux^ Bird
V. Appleton^ Pollard v. Bell and Price v. Bell, there was a reco-
very upon the policy, not because the sentence was not conclu-
sive as to what it directly decided, but because there was no-
thing directly decided by the sentence that falsified the warrant)-.
But there is not a case to be found in which an English court
has ever questioned the decision or conclusion of a Court of
Admiralty on any point either of law or fact in a case within its
jurisdiction. Lothian v. Henderson, {a) It is a doctrine of the
common law and has been repeatedly acknowledged in Pemi'
sylvania^ that no court can in a collateral way review the pro-
ceedings of a tribunal which had jurisdiction of the subject mat-
ter; and that where a matter comes to be tried in a collateral
way, the decree of ant/ court of competent jurisdiction is con-
clusive evidence of such matter while it remains unreversed.
Penhalloxv v. Doane (h), Jones v. Boxu (c), Bidl N. P, 244. Al-
len v. Dundas (d)^ Papelje v. Emery, (r) That at this day the
law of Enifland deems the sentence of an Admiralty Court con-
clusive as to every point it directly decides, cannot be question-
ed; not one of the twelve judges in Lothian v. Henderson inti-
mated a doubt of it, although one or two of them expressed a
regret that in its application to French decrees the principle was
productive of hardship. Such also is the law of this state since
the case of Drmpsnj v. Thr Insurance Co. of Peunsi/hania (/)
in which the point was decided by this Court, and which is still

(rt) 3 Bm. ISf Pull 516. (J) 3 Z) Isf E. 129.

{b) 3 Dall. 185. I Dull. 220. (e) 2 I) all. 231.

(/■)Sinrc the argument in lli'ij cause, llic c.ise of Dcm/isrj asjij^ncc of
Mrmvii V. "J'hc Insurance Cuinfxiny of Fcnmyhaniu lias liccn (iccidcd in llic
HIkIi Ciiurt ofErrtiiH and Appeals.

It was an artif)n of rovcnant on a ])oliry on ^^oods on board tl<c i)rifj lictsy
at anil fiom Pluladclphiit to JJonlcaiix ■dU([\)a.ck,ii>arriintcd American prnjicrty,
and iliat the vc-tscl was an American bottom. The brijj was captnred by a
British ship of war and carried into the island of licrmudat, where vessel and

Pcnn.

30(5 CASES IN THE SUPREME COURT

1808. *^* \^w, although a writ of error is pending before the court of
"CALnooTl^st rcsorli The idea that the sentence is not conchisive if it
X'. decides in opposition to the law of nations, is altogether new;
Ins. Co. if it were just, the sentence would in no case he conclusive, for
the instant you examine into the propriety of it, you try the
matter over again, and the conclusiveness of the decree van-
ishes. Then how far does the present decree go, what does it
decide? JNIost clearly it decides that the Captain committed a
breach of blockade, which it is conceded is a breach of neutrali-
t}-, and therefore a forfeiture of the warranty.

The special clause was not designed, for the case that has
happened. The meaning of it is that the property only is to be
proved here; for independent of the warranty the insured was
bound to conduct himself as a neutral; and the clause must
therefore have been introduced in consequence of the warranty
and merely to prevent its being falsified by an Admiralty sen-
cargo were acquitted; but upon an appeal this sentence so far as respected
the cargo svas reversed, and the same condemned as belonging to the ene-
mies of the erown of Great Britain, and by virtue thereof or othcnvise good
and lawful prize.

The cause w as tried in Bank at December term 1804, when the record of
the Vice Admiralty at Bermudas, and the final sentence of the Lords Com-
missioners of Appeal, were given in evidence. The plaintifTtlien oRercd to
prove that the cargo at tlie time of the capture and condemnation belonged
soley to Brcnvn, who was a native citizen of the United States residing there.
This evidence was objected to by tlie defendants, because the proceedings in
llie Court of Vice Admiralty and the final sentence of the commissioners
were conclusive evidence that the cargo was at the time of the capture the
property of enemies to the crown of Great Britain, and not American proper-
ty. Of this opinion was the Court, who overruled the evidence; and tlie jury
found for the defendants. A bill of exceptions was tendered and allowed, and
the record carried by Writ of Error to the High Court of Errors and
Appeals.

In that Court the case was twice argued, first at^w/yterm 1807, and again at
yuly term 1808. Upon the first argument two questions were made: 1. Whe-
ther the sentence of the Lords Commissioners of Appeal decided directly
such facts as falsified the warranty; and 2- If it did, whether it was conclu-
sive evidence of those facts between the parties to this suit. Upon the first
argument the Court declared their opinion that the facts decided by tlie sen-
tence did falsify the warranty; and the second argument was therefore con-
fined to the general question " Whether tlie sentence of a foreign Court of
Admiralty, condemning property as prize, is conclusive not only as to its
direct effects, but also as to ihc facts directly decided by it." Of the aflirmative
opinion were Presidents Rush, Roberts, H.\milton, Yoi'ng and Wii.son;
President Cooper contra. Accordingly the Judgment of this Court was
Affirmed.

OF PENNSYLVANTIA. 3Q1

tence upon the very point of property. In Calhraith v. Grade IgOS.
the condemnation was as enemies' property. Calhoun

2. But if the facts are let in, they shew a breach of the war- v.
ranty. The treatv between the United States :in(\ Great Britain Ins. Co
is in the matter of blockade in affirmance of the lifSVaf nations; *^"'^
it introduces no new principle. An attempt is necessar)^ in all
cases; but the question is, what is an attempt? Under the treaty
there must in certain cases be a turning away; but what is that?
That there should be a physical turning away by the blockading
squadron is absurd; the Captain should turn himself away. The
meaning of the phrase must be ascertained by its object. The
treatv applies only to cases in which there was no notice; and
its first provision is therefore for notice, which is signified by
the terms turning- axvay^ or what was practised by the squadron
at Cadiz^ xvar7iing off'. The Captain was then turned away on the
16th July after he had once attempted to enter, being as is said
ignorant of the blockade. But what shall amount to agaiji at-
tempting X.o enter? It cannot be that it means only an actual
sailing toward the blockaded port; for if the Captain hovered
about the port without taking a direction to one which he
might lawfully enter, it would be a clear attempt. This attempt
would consist in his not going away according to his duty; and
remaining on the spot would be the overt act. If the possession
of the vessel is offered to him that he may go elsewhere, and he
refuses to take it but upon the threat of going to the prohibited
port, here is an attempt of the same kind; and his refusal to go
away with the vessel is the overt act. Case of the Apollo, (a)
That Captain Barker refused his vessel and papers with the
liberty to go to any but the blockaded ports is sworn by the
mate; and that something of this kind passed may be inferred
from the questions put to him by the Admiral, which cannot
be accounted for l)Ut upon the supposition of some previous
offer, refusal, and threat. On the 27th of July however, eleven
days after notice, he makes his deliberate declaration that if he
is dismissed he will go to Cadiz; for such is the obvious mean-
ing of his words. The old orders which he threatened to follow
if he did not gcrnew, were clearly those of his owners, as they
led to Cadiz^ and those of the Admiral another way; and the
impossibility of getting new ones at that time from his owners,

(«) 5 Rob. 25$. *

302 CASES IN THE SUPREME COURT

1 808. is a proof of the inveterate obstinacy with which he persevered

~7, in the iirohihitcd track. This conversation and the refusal were

Calhoun '

x>, a clear attempt; and there was therefore a breach of blockade
Ins. Co. under the treaty.
I enn. «^ T\\it Captain's conduct was not barratry; it was grossly

improper, but for this impropriety the owners must answer, as
they are bound to provide a person of competent skill. Law v.
Holl'mgatuortli. (a) To constitute barratry' there must be some
fraud or knavery or other criminal act practised against the
interest of the owners. Hood v. Nesbit, (J)) In this case the
Captain was to derive no benefit; and this is a powerful cir-
cumstance to negative fraud. If a breach of blockade were de-
signed for the benefit of the owners, surely it would not be bar-
ratry; Case of the Adonis; and it is not possible that here it
could be designed for any thing else. If fraud is to be presum-
ed from the illegality of the act, it is barratry to pursue the ex-
clusive interest of the owners through such an act; this can-
not be law. There must be something criminal in the Captain's
conduct, or there must be the malus animus directed against
the owner; in this case there was neither. In Moss v. Byrom
the Captain committed piracy; and in Earle v. Rowcrojt he
sold arms and ammunition to the enemies of his country.

TiLGHMAN C. J. This cause arises on a policy of insurance
on the cargo of the brig John^ Richard Barker master, at and
from Charleston^ South Carolina^ to Cadizy for 15,000 dollars,
premium 15 per cent. At the foot of the policy is the following
agreement: " This insurance is declared to be made on sugars,
" not discharged from on board the above vessel at Charleston^
" where she brought them from Havanna^ warranted by as-
••' sured to be American property, to be proved, if required, in
" this city, and not elsewhere." The vessel was taken on her
voyage by Vi British squadron blockading Cadiz^ sent to Gibral-
tar^ and condemned, together with the cargo, for breach of the
blockade of Cadiz.

The cause was tried at Nisi Prius before Judge Smith last
July^ when a verdict was found for the plaintiffs for 20,267
dollars and 60 cents, subject to the opinion of this Court, on
the three following points. *

(^0 7 I). (S- K. 160. {b) 2 DcUl. 137.

OF PENNSYLVANIA 30

1. Whether the decree of the court of Vice Admiralty at 1808.
Gibraltar^ is or is not conclusive evidence of the facts set Qy^LHOUN
forth in it; and if conclusive, whether it discharges the under- xk
writers. Ins. Co.

2. Whether the conduct of Captain Barker in the Bay of P^"""-
Cadtz^ in relation to the blockade, did or did not amount to a
breach of the warranty in the policy.

3. Whether the Captain's conduct amounted to barratry.
With liberty to move for a new trial, on the ground of the
verdict being against law and evidence. Under this liberty a
motion for a new trial has been made.

It will be necessary to state the material facts which were •

given in evidence. On the 8th June 1800 the brig sailed from
Charleston^ where the blockade of Cadiz was not then known;
nor does it appear that the Captain knew of it until he received
notice in the Bay of Cadiz^ in the manner which I shall here-
after mention. On the morning of the 15th or 16th Jidij^
steering for Cadiz^ and not many leagues distant from the
shore, Captain Barker descried two large ships, one of which
fired a p^un at him; he stood on his course with all sails set. In
about an hour he was overtaken by the Hector, one of the
squadron forming the blockade of Cadiz under Admiral Sir
Richard Bickerton; he then received notice not to enter Cadiz,
which was blockaded, and was taken out of his vessel, and
carried on board the Hector, with his papers and letters. The
same day he was carried on board the Admiral's ship; the
mate and four hands were taken out of the brig, and an officer
and eight men put into her, with orders to detain her and
stay with the fleet. The Captain was detained as a prisoner on
board the brig; and thus things remained until the 2rth July^
when he was carried on l>oard the Admiral's ship. The Admi-
ral said to him, " We have thoughts of setting you at liberty:
" in that case what course will you steer? or what port will you
" go to?" The Captain answered, '' In case I receive no new
" order, or in case I receive no new instructions;" for in that rf -
spect the Captain's protest and his answer, when examined on
interrogatories in the Court of Admiralty, difltr: *' I shall fol
" low my old ones." The Admiral replied, " that will bo, I
" suppose, for Cadiz;'''' to which the Cajitain answered, " ccr
" tainly, unless I liavc new orders." Wliereupon the Admiral
said, " that is sufRcicnt; I shall send ) ou to Gibraltar for adju-

304. CASES IN THE SUPREME COURT

1808. *' dication." Here again the examination of the Captain difFers

r *i iiniN something from his protest: in the lormer it is thus expressed:

V, " The Captain said that in case he got no new instructions, he

Ins. Co. " should proceed by his old ones, and go to Cadiz;^^ and the

Fcnn. Admiral then told him, he must send him into Gibraltar for

adjudication.

On the 26th yultj 1800, an indorsement, as follows, was
made on some of Captain Barker^s papers: " Warned not to
" enter Cadiz^ or St. Liicar, as they are blockaded; but has
" permission to go to any other port." But it does not appear
that the papers were ever returned to Captain Barker after
they were taken from him on the 16th jfuly^ or that he ever
saw them again, till they were exhibited by the captors in the
Court of Admiralty at Gibraltar. Christopher Bennet^ the
mate of the brig, declared on his examination, that after they
had been in possession of the Hector about ten days, the papers
were offered to the master, and the command of his vessel^
which he refused, because he thought the captors had unjusti-
fiably detained him, and removed four men from the brig, on
5oard the Hector and Incendiary.

On the 26th August 1800, the judge of the Court of Vice
Admiralty at Gibraltar pronounced his decree of condemna-
tion. After declaring the said brig to have been cleared out for
Cadiz^ a port actually blockaded, and that the master persisted
in his ititention of entering, after warning from the blockading
force not to do so, in direct breach and violation of the block-
ade thereby notified, he pronounced the said brig and her cargo,
and the master's private adventure, by virtue thereof or other-
rvise subject to confiscation, and condemned the same as gooJ
and lawful prize.

Upon the first question, whether the decree of the Court of
Vice Admiralty is conclusive, I shall give an opinion founded
on the special circumstances of this case, without entering into
the general question of the conclusiveness of the sentences of
loreign Courts of Admiralty. It is now well understood, that a
warranty of Arnericati property, " to be proved if required in
" the city of Philadelphia and not elsewhere," is to be so con-
strued, that in case any dispute arises whether the property
was American, and as such entitled to protection, or whether in
the circumstances under which it stood at the time it was cap-
tured, it was to be considered as the property of an enemv.

or PENNSYLVANIA. 305

-.uch dispute is to be decided by proof in the city of Philadel- 1808.

phia. A warrantv oi American piopertv is a contract not only V>

\ . •; , Calhoun

that It was American property at the time it was shipped, but -j,

that it should not lose that character by any act or omission Ins. Co.

of the insui-ed or his agents, during the voyage. Now a ques- Pemi.

lion has arisen, whether the property has not lost its American

character, by an attempt to break a blockade. It is a question

springing out of the warranty. By what proof then is it to be

decided? The answer is plain: by proof satisfactory to a court

and jury in this city, and not elsewhei-e; not by the opinion of

any foreign court, which it was the very object of this warrant}'

to exclude. In this case, therefore, the decree of the Court of

Vice Admiralty at Gibraltar^ cannot be received as conclusive

evidence that the property was not Afnerican.

2. But was the conduct of Captain Barker in the Bay of
Cac/izy such as to throw off the American character, and forfeit
the protection due to American property? Did he act in viola-
lion of the law of nations, or of the treaty between the United
States and Great Britain? It is unnecessary to speak particu-
larly of the Law of Nations, because the treaty is in exact con-
foriTiity to it. One of the passages in the 18th article of the
treaty, is as follows: " Whereas it frequently happens that
** vessels sail for a port or place belonging to an enemy, with-
'' out knowing that the same is either besieged, blockaded, or
*' invested, it is agreed that every vessel so circumstanced,
^' may be turned away from such port or place, but she shall
" not be detained, nor lier cargo, if not contraband, be confis-
** cated, unless after notice she shall attain attempt to enter."
The case supposed in the treaty is the very case we arc decid-
ing; the case of a vessel which sailed from Charleston with-
out knowledge of the blockade of Cadiz; and how was she
treated? She was not turned axvaij^ according to the treaty, but
detained^ in express violation of it. Did she attempt to enter
again after notice? By no means. A conversation took place
lietwcen Captain Barker^ and the Commander of the British
squadron, in wiiicli the lormer made use of an expression,
which, to make the most of it, was l)ut equivocal; and this is
set up for an obstinate, determined, resolution to break the
blockade. It may be questioned whether any words would be
a breach of the treaty, since an attempt implies an action. But
granting, for argument's sake, that under a liberal construe -

Vol.. I. 2 Q

306 CASES IN THE SUPREME COURT

1808. tioii, a clear and positive declaration of an intention to enter a

"TT"" ~ blockaded port, might amount to a breach of the treaty, I think

-,. the evidence in this case falls far short of the proof of such

Ins. Co. decided intention. I am far from being satisfied that it was

Penn. Captain Baricr^^ intention to attempt to enter Cadiz^ unless
he received permission to do so from Sir /■Richard B'jckerton.
When he said to the Captain, " we have some thoughts of
*' setting you at liberty, in that case, what course will you
*' steer?" the Captain might have supposed, that the Admiral
meant liberty to go where he pleased; and understanding him
so, the other words, " unless I receive 7iew orders^ or 7iexv
" instructions^^'' might intend orders or instructions from the
Admiral: for the Captain could have no reason to suppose, that
just at that moment he should receive orders or instruction.^
from his oxvners. According to the evidence, the Admiral
appears to have put this question with a view of taking advan-
tage of the answer: and the conversation, taken altogether, is
too slight and too obscure, to warrant the strong conclusion
drawn from it, that the Captain was determined to break the
blockade. I cannot say that his conduct amounted to a breach
of the warranty in the policy.

3. The opinion which I have given, renders it unnecessary
to say any thing on the third point.

Upon the whole of the case my opinion is that sufficient
cause for a new trial has not been shewn, and that judgment be
entered for the plaintiff.

Yeates J. I feci it unnecessary to decide In the present in-
stance, how far the decree of a foreign Court of Admiralty is
condnsivc^ on abstract principles, as between the insurer and in-
sured. It is sufficient to observe that the plaintiff's counsel ful-
ly admit, that a sentence of condemnation in a course of pro-
ceedings in rem binds the property, and that where it has been
condemned as cnemifs property, or as pr'izc^ or when in the case
of a warranty of neutrality the decree is founded on zruant of
neutral papt-rs^ox on mixed premises oflarv andfact^ by proceed-
ings according to the law of nations, it is conclusive evidence,
not merely in suits between the identical parties in the foreign
court, but as to collateral purposes, between other parties. The
principle of these concessions has been recognised by this court
in other cases.

OF PENNSYLVANIA. 307

I shall consider this cause more in the light of a special con- 1808.
tract, than under general principles. The insurance was declar- c^mouN
ed to be made on sugar, which was brought in the brig yoJin v.
from Havamia to Charleston^ and not discharged there; war- Ins. Co.
ranted hv the assured to be American property, so to be Penn.
proved^ if required, in this city and not elsewhere.

What is the true meaning of this clause ? What was the un-
derstanding of the contracting parties, when they inserted it in
the policy ?

By the decision in Gei/er v. Aguilar (7 T. R, 681.) it is set-
tled, that the legal import of a warranty of American property
extends beyond an engagement that it is American; and that it
asserts the ship shall be navigated so that the insurer shall de-
rive the full benefit of her neutrality. The risk is thereby les-
sened, and the premium is proportioned thereto. The insured
are bound that the ship shall possess all the necessary docu-
ments required by the particular laws of the country, against
whose hostility the insurance was made. It follows from hence,
as a necessary consequence, that the master of the ship shall not
only possess competent nautical skill, but shall so conduct him-
self as not to forfeit his neutral character, which would in-
crease the risk of the underwriters.

We can well remember the period when such special agree-
ments came to be inserted in our policies, and the cause of the
insertion. Strong instances occurred of grossly partial and un-
just condemnations in the Courts of Admiralty of the several
belligerent powers; and the courts here having adopted the
English doctrine that the sentences of such foreign courts were
conclusive, as to the points which they professed to decide^ it was
judged necessary to introduce words similar to the present into
the policies. The direct object of such clauses, ,§fc;2e"ra/ i« their
nature^ was to guard against the unworthy conduct of foreign
tribunals; and the construction thereof should be coexten-
sive with the evils intended to be remedied thereby.

It is a sc ttled rule, {New York Cases in Error 1 3.) that the in-
sured, in order to comply with his warranty, must not only
maintain the property to be neutral, but so conduct himself to-
wards the l^elligcrent parlies, as not to forfeit his neutrality; he
must pursue the conduct and preserve the character of a neu-
tral. These were matters incumbent on the assured to prove, if
required, " in this citv, and not elsewhere," in case of loss by

Pcnn.

308 CASES IN THE SUPREME COURl'

1808. any ot ihe ]jcrils expressed in the policy. They are the neces-
Calhoun ^^^y P'"^'doininant features of the American character^ consi-
T'. dercd as a neutral nation. But if the decree of the Court of
Ins. Co. Vice Admiralty at Gibraltar was conclusive evidence of the
facts set forth in it, and discharged the underwriters, it would
be idle in the plaintifl's to offer any proof upon the subject; and
the clause would be thereby rendered a dead letter, wholly nu-
gatorj' and useless. I cannot bring my mind to accede to such
a construction, and fully assent to the opinion expressed by
Judge JVaslwigton in 1 801 in Calbraith and Grade, that under
such a warranty the assured is at liberty, notwithstanding the
sentence of a foreign tribunal, to vindicate the truth of his war-
ranty M'ith all its necessary incidents. If it has not this effect,
the clause appears wholly useless, and can serve no purpose
whatever.

Under the express agreement then of the contracting parties,
I deem myself authorized to examine the evidence upon which
a decree of condemnation has been pronounced. It is admitted
by all the writers on the civil law, that no commerce or inter-
course whatsoever is to be allowed to a neutral with a blockad-
ed port; {Vattcl lib. 3. c. 7. s. 117.) but Grotius adds this limi-
tation, if surrender or peace be expected. {Grot, de jure bel, ei
pac. lib. 3. c. 1. .s. 5.) This limitation however, has been con-
demned as neither agreeable to reason nor to the conventional
law of nations. {Bijnker. quocst.jiir.pub. lib. 1. c. 11. 2Broxvn^6-
Civ. Laiv 214.) The besieging or even blockading force, says
Vattel, has a right to hinder any one from entering, and to treat
as an enemy whoever attempts- to enter the place, or carry any
thing to the besieged without his leave; for he opposes the en-
terprise, and may contribute to the miscarriage of it, and thus
cause the party to fall into all the evils of an unsuccessful war.
The ship attempting to break a blockade is liable to confisca-
tion; its cargo may be so also, although not contraband, if the
owners of that cargo were conusant of the blockade, before
they sent or shipped it; although they might attempt to throw
the blame on the carrier master, if such an attempt was proved
to be founded in artifice : but if they were really ignorant of the
fact, the master is not their agent to bind them by his contract,
or his misconduct. (2 Brozvn's Civ. Laxv 318.) By the general
law of nations therefore, with which the treaty between Great
Britain ^x\d the United States accords, there must be an actual!.

OF PENNSYLVANIA. 509

attempt n-iade to enter the bloc^zaded port; and there mual 1808.
either be a formal notification of the existence of the blockade, f. .,„^„..
or it must be apparent de facto. (1 JRob. 78. 128. 131. Am. £d.) i,.
And though Attiericans :irii not exempted from the common effect Ins. Co.
of the notification of a blockade, existing in Europe^ yet lying Perm-
at so great a distance, the rule obtaining in Europe Is reasona-
bly said not to l)e rigidly applicable to them, (l Rob. 282.)

Without citing civilians, it is perfectly clear that a treaty
made between two nations abrogates and annuls the general
law of nations as between the contracting parties, and ought ta
be held sacred and inviolable. The plaintiff's counsel rely
much on the 18th article of the treaty of commerce concluded
between the United States and Great Britain on the 19th A'c-
vember 1 794. The defend:mts contend that this treaty is in con-
firmation of the law of nations, and introduces no new principle.
Be it so. It will hov,-ever be admitted, that it pointedly ascer-
tains that no vessel sailing to the port of an enemv', unknowing
of the blockade, shall be detained^ nor her cargo, if not contra-
band, be confiscated, unless after notice she shall ag^aiii
attempt to enter.

In the case of the brig Columbia (1 Rob. 132.) Sir Wm. Scott
declared himself clearly of opinion that sailing Vv'ith the inten-
tion of evading a blockade, was beginning to execute that in-
tention, and was an overt act constituting the offence, and
from that moment the blockade was fraudulently invaded. He
thought the ceremony of turning away the vessel unnecessar\',
when the merchant or his agents had acquired notice in fact,
even ditrinir the voijage^ of an existing blockade. The question
came before the court for correction of errors in the state of
i^etv York (1 Caines Cases in Error 11.) in 1801, between Voss
and Grr/oev and the United Insurance Company^ upon a policx" un-
derwritten on the same brig Columbia^ wherein a contrary de-
cision took place. The Court of Errors there expressed sur-
prise that the moral laM', which arraigns intention., should b(
adopt' fl in the law of nations witii a greater latituile than in oui
municipal sx'stem, for the benefit of belli if cr cuts ^ and to xhcpre-
judirc of neutrals. " In intention, say the court, there is notli
" ing certain and permanent; it is controlled by every rcflcc
" tion; is changed, dropped, and renewed, by the occurrences ol
*' every liour; l)y the constant vicissitudes to which the agent is
•*• '^ubjert. TJT*- cntrrprisf on a nearer vifw appals, the hnty

310 CASES IN THE SUPREME COURT

1808. *■' poenitcntic \s embraced." "The rule, that sailing with a destl-

P ~" nation to a hlockadcd port, is a breach of blockade, is undefi-

7>. " nable in relation to distance, between the port of departure and

Ins. Co. " thatof destination, and will produce great uncertainty and vex-

Penn. « ation." The same principle was adopted in the Supreme Court
oi Nexv York in Z?o^n;7/ against Graves in 1805. (3 Caincs 236.
240.) And it cannot be denied, that the system of reasoning in
these two last cases, is strong and almost irresistible, while wc
hold the treaty in view.

But without expressing any decided opinion, whether the
mere hitention of the neutral master shall constitute a breach
of blockade per w, we may be allowed to inquire what evi-
dence there is of such intention, in the present instance. We
have the same evidence bcfove us, on which sentence of con-
demnation was pronounced on the vessel and cargo, at Gibral-
tar. The vessel sailed from Charlesto?i to Cadiz, on the voyage
insured, on the 8th yune 1800, duly documented, and both
brig and cargo, were the property of American citizens. At
the time of her sailing, it was n^t known at Charleston, that
Cadiz was in a state of blockade; and Captain .fir/r^fr has
sworn, that neither he, nor his crew, knew of the blockade,
until he was seized by the British ship of war, ZTfC^or, on the
16th Julif 1800, as he was steering for Cadiz, and within six
hours sail of that port. He further declares in his affidavit, that
if he had received orders from the British Admiral not to go
to Cadiz, he would not have offered to proceed to that port. No
( ounter proof was offered as to these facts: and if the Captain
knew of the blockade antecedent to his seizure, it would have
been folly in the extreme in him, to have directed his course
to Cadiz, surrounded as he was by the squadron of Admiral
Bickerton. When the seizure was made, the mate and four of
the crew were removed on board the Hector, a prizemaster
and eight men were put on board the brig, and Captain Barker
was detained as a prisoner on board his own vessel until the 27th
Julij, when he was sent on board the Sxviftsure, the Admiral's
ship. During this interval, let Barker'' s intentions, be what they
would, he could not, in his dearth of hands, overpowered as he
was by the prizemaster and his party, have attempted to enter
Cadiz, even if the British squadron was not in sight. The
short conversation which he had with the Admiral on the
27th "/?//'/, dne-^ not necessarily lead to th^ conclusion, that he

OF PENNSYLVANIA. 311

intended to violate the blockade. But this was deemed sufii- 1S08.
cient by the Admiral, to send him into Gibraltar for adjudica- Calhoun
tion; and on this, the sentence of condemnation must have been v.
founded; " because the master persisted in his intention to Ii^s. C<j.
*' enter the blockaded port of Cadiz^ after notification." The Pcmi.
effect which this interview has on my mind, is precisely the
same as that produced on the minds of the jurors, who found
the special verdict on the 12th yulij 1806, "that Captain
" Barker'' s intention was to go to Cadiz^ unless he received
" new orders from Admiral Bickerton to the contrary; and if
*' the Admiral had given new orders to Captain Barker^ not to
*■' proceed to Cadiz ^ he would not have gone there, in breach
*' of such orders." We have the authorit}- of Sir William Scott
for asserting, that if there had been any thing insidious in the
manner of this interview, he should have thought it his duty to
protect the neutral from suffering loss or inconvenience, under
it. (l Rob. 70.) And upon another occasion lately, he has de-
clared that hasty expressions, in a moment of surprise, are not to
be taken advantage of rigidly. (5 Rob. 258.) It is true that the in-
dorsements made on the brig's American register, sea letters,
and Mediterranean pass, in these words, " Warned not to enter
" Cadiz or St. Lucar^ as thty are blockaded, but has permis-
" sion to go to any other port. Sxviftsure off Cadiz ^ 26th Julij
" 18(XJ, B. M. Hallowell^'' serve at first sight to create suspi-
cions, as to the truth and correctness of Captain Barker^s
;iccount of the transaction, with respect to not being warned:
but when we consider that the papers of the brig'-vere carried
on board the Admiral's ship, on her first seizure, and were
ever afterwards out of possession of the master, and that the
British officer, who lodged them with the Registrar of the
Vice Admiralty Court, swore that they wei'c in the same
plight as when they were taken from the l)rig, our suspicions
on this score vanish and we are led to l^eHeve, that the master
had never been apprised of those indorsements.

The answers of Christopher Bennct^ the mate, corroborate
the account of the Captain, and state in particular, that the
blockade of Cadiz was not known at Charleston^ when the brig
left that harbour, and was wholly unknown to him until the
time of her arrest; and further, that they received no warning
not to enter Cadiz. His oath is, however, inexplicalile in one
part by mc. He says, without naming the day, that tiie papciTi

Jl^ C-AbLS iN THL vSUPKLMi: COURT

1808. '^i^*^ coniniancl of ihc brig were oflercd to the Captain, but that

■7; he rcTuscd to take the same, on account of" the siczure and de-

Laltioux ....

tention ol the brig. How could he have obtained a knowledge

Ins. Co. of this fact, unless at second hand? Immediately on the seizure
Pcnu. he was put with four seamen on board the Hector^ and the Cap-
tam continued a prisoner in his own vessel, under the direc-
tion of the prizemaster and eight men, until he was sent on
board the Admiral's ship: of course they must have been
separated, imtil they met each other again in Gibraltar.

On the one hand I cannot impute barratry to captain Barker,
whereby the underwriters would be rendered chargeable. I can
discover wo fraud or crimiJial conduct in him, which are indis-
pensably necessary according to the settled doctrine of this
court in that ofTence. 2 Dall. 131. It will not be supposed
that a tenacious adherence to the supposed interests of his
owners, would merit reprehension. On the other hand, I can-
not believe that his conduct in the bay of Cadiz^ in relation to
the blockade, so fi\r as has appeared in evidence, amounted to
a breach of the warranty in the policy.

'Ihe plaintiffs then, bc7ia fide American citizens, had proper-
ty on board to the amount of the sum insured. The brig, duly
♦locumented, xinoffendinghj sailed to the port insured. She was
arrested within six or seven leagues of Cadiz by a boat from
one of the British ships of vt'ar, detained for eleven days against
the letter and spirit of the treaty, stripped of part of her seamen,
and her master and crew were incapacitated by a superior
force from proceeding to the destined port, or any other place,
fudging on the evidence before us, I cannot discover any inte?i-
fion in the mafitcr to violate the blockade^ after notification; and
much less, in the language of the treaty, after notice, any at-
iempt again to enter the blockaded port. I cannot therefore con-
cur in the legality of the condemnation of the brig and cargo,
believing as I now do, that neither the owners, shippers, master,
or crew, have in ought offended against the treaty or the law ol"
nations.

"Within these few days we have been furnished by news-
papers with the opinion of the Supreme Court of the United
.itatcs^ delivered by Marshall Chief Justice, in the case oi Fit-
','jmmons plaintiff in error, against the Newport Jnsurdhce Com-
pany., on a special verdict upon a policy on the brig fohn for
the present voyage, but which is silent as to the place of proof

OF PENNSYLVANIA. 313

• }f the property insured being American; which made the case 1808.

lot nearly so stronp: as the* iiresent. The Court there declared 77 '
1 u ; 1- 1 1 1- 1 • Calhoun

that the tacts disclosed dul not amount to an attempt again to ^,

enter the port of Cadiz; and thei-elore did not amount under the Ins. Co.
treaty between Great Britain and the United States^ to a breach Pcnn.
of the blockade of Cadiz. The sentence of the Court of Vice
Admiralty in Gibraltar^ consequently, was not considered as
falsifying the warranty that the brig was American property, or
as disabling the assured from recovering against the underwri-
ters in that action, and the testimony in the case shewed that the
blockade was not broken.

Upon the whole, as this has been a loss by capture, within
one of the perils expressed in the policy, I am of opinion that
the motion for a new trial be oyerruled, and I concur that judg-
ment be entered for the plaintiffs on the verdict.

Smith J. I was of opinion on the trial that the plaintiff
should recover, and have seen no cause since to think other-
wise; at the same time I have been prevented by indisposition
from reducing my reasons to writing. The assured was entitled
to shew the truth of the case, under the special clause; and it
does not appear that the conduct of the Captain amoimted to a
breach of blockade. Some act is necessary to constitute such a
breach. I give no opinion on the question of barratry, which
may come before us hereafter.

Brackknridgk J. The points, in the order I shall take them,
are 1st. Whether the conduct of the captain in the bay oi Ca-
diz., in relation to the blockade, did or did not amount to a
breach of the warranty in the policy.

The warranty in the policy is in substance, that the property
insured was neutral; and the first question that arises will be,
whether this sli.iU be construed as warranting agui.ist a breach
of a Ijlockade. There would seem to be no doubt but that it
shall be construed as a warranty that the properly liclongs to a
neutral nation; that it is protected by documents lliat evince
this neutrality; and that it shall remain the property of that na-
tion, and be protected by documents evincing that neutrality,
<luring the voyage insured. Hut wluther breaking a blockade,
which incurs a forfeiture, is within the warranty, is not self-

(•vident. For at common law, tli< distinction is well known be-
Vofc. I. 2 R

314 CASES IN TH1-: SUPREME COURT

1 R08. t\veen what incurs the like forfeiture, though not the like act»
f>,. As in the case of assistincr a felon to escape, the forfeiture is the

L/AI.HOUN . ... .

^._ same with that of tht- principal felony. So capture is the penalt)-
Ins. Co. of a neutral breaking a blockade, which is the same as that ol

1 enn. ^^^ enemy made a prize. But it is an offence of which a neutral
may be guilty, and subjects to confiscation, not because it is in
fact taking part in the war, but because the law of nations or
particular treaties prohibit it in a neutral. Grotius (/. 3. c. 1.
*. 5.) pilts it on this ground: ut is qn'ijud'ic'i hnmhientt reum via-
nift'stum ex'nnit: atqite eo yiomine licebit in eum statuere quodde'
licto convenit; quare intra eum modiim etiam spoliari poterit. It
is founded on the idea, doubtless, that it is giving assistance, and
is constructively a taking part. But it is distinguished from an
act of direct hostility, and is not resented as a cause of war with
the nation to whom the violator of the blockade belongs; nor
does the nation resent the capture as a cause of war, the block-
ade having been broken. It is the affair of the owner of the pro-
perty; and the forfeiture which he incurs is the penalty of the
transgression; and the matter terminates in this. Nevertheless
it seems to be spoken of by the writers of the law of nations as
a departure from neutrality, and in the language of the writers
on the law of insurance, it seems to be considered as included
under a warranty of neutrality. " This warranty," says Mnr-
■sliall^ (361.) " must not only be true at the time when the poli-
" cy is efl^ected, but the insured should take care that he do not,
" by any act or omission on his part, forfeit his neutrality. Such
" forfeiture is a breach of the warranty. A ship may forfeit her

' " neutrality by any act done or attempted against the laAv of

" nations." Here we find a forfeiture of neutrality, and a breach
of the warranty of neutrality, spoken of as effected by the likg
acts against the rights of belligerents.

The next question that will then arise under this point will
be, has there been a forfeiture of neutrality, or in other words,
a breach of the warranty in the policy; that is, has there been a
breach of the blockadeby the conduct of the Captain in the bay
of Cadiz ?

Our treaty of 1795 with £;?^/anr/ takes the matter out of the
law of nations, with regard to this, if in any respect diff'erent;
, and confines us to the words of the treaty with respect to what
shall be a breach of blockade. '-'•Again attempt to enter'"' sup-
poses an attempt to enter before she had been turned away from
such port or place, and before she could be liable to be detained

OF PENNSYLVANIA. 315

fn this case it does not appear that the vessel in question had 1808.
been turned awav before she was detained. The seizure was /-.,„" ..
before turning away. The Captain was taken onboard the captor, v.
together with all his papers and letters, and detained on the I"s. Co.
16th yult/ from nine to eleven o'clock, and was then ordered on P*^""
board the ship; during which, a prizemaster and some people
were put on board his vessel to take charge of her. He was af-
terwards taken to the admiral, who ordered him to be detained,
and that his mate and four of his crt-w should be taken out of
the ship, and an officer, w ith eight men and a boy, put on board
in lieu thereof, with direction to remain with the fleet. In this
situation, as a prisoner in his own ship, he was detained until
the 27th jfu/i/^ when he was again ordered on board the admi-
ral's ship. The admiral then and there addressed him, saying,
*' We have some thoughts of setting you at libertv. In that case
" what course will you steer? or what port will you proceed for?
*' In case I receive no new instructions, I shall follow my old
" ones." The admiral then said, " I suppose that will be for
" Cadiz." To which the Captain replied, " certainly, unless I
" receive new orders." The captain by his protest declares that
these words " new instructions, new orders," meant instructions
or orders from the admiral. But it may be that they were intend-
ed and ought to be referred to owners; that it was as much as to
say, in case of being set at liberty, I must steer for or proceed
to Cadiz, for such are my instructions, such my orders; unless
you could change mv instructions or the orders of my owners,
I must obey them. Taking this to be the meaning of the Cap-
tain's language, and supposing it not equivocal, but to contain
an express declaration of intention to proceed to Cadiz in case
of being set at liberty, yet it is but a declaration of intention to
enter that port, and it could only lie by being set at liberty, that
he could be in the ca))acity to do the act, that is, to make the at-
tempt to enter. 'Jhe declaration manift-sted an intention; but it
remains to this hour but evidence of an inltnlion, not suflercd
to grow into an act. Intention to enter is short of an attempt to
niter. The law is lull of this discrlininatiun between the inten-
tion and the act. Although a declaration of an intention to
commit an offence, may be a ground of binding to good beha-
viour, yet it cannot be considered as constituting an offence. It
would seem to me therefore l)y analogy to the principles of the
common law, that the offence in this case was not complete,
and that there was not an absolute breach of the blockade. This

316 ( ASES IN THE SUPKEiME COURT

1 808. is tukinp; up the matter on the principle of strict construction; but
Calhovn ^"'^'^ '^ ^''*'' principle of all laws which establish an offence, that
V. they be construed strictly. It is a principle of reason and hu-
Tns. Co. manitv, and not peculiar to our own common law, but that of
all nations. Where a forieiture is claimed, it behoves the claim-
ant to shew the forfeiture completely made out of which he
would take the advantage. It might have been but matter of
form in this case to have restored the Captain his mate, and
four mariners and boy to the ship, setting them at liberty; but
it was necessary to be done in order to constitute a free agen-
cy, and to put the captured in a capacity to put about the
ship, and ag-ahi attempt to enter. This might have been form,
but it was necessary to go through it. The admiral would seem
to hAve been over hasty in seizing the vessel in the first in-
stance, and in the last, deficient in that astutia which a spoiler
under the forms of law ought to have, or which the enforcer ol
the penal code ought to exercise, in order to avail himself of the
siummumjus.

This construction of the words " attempt to enter," is sup-
ported by that of the Supreme Court of the United States^ in
the case oi Fitzimvions against the iVt'Tiy^or? Insurance Company
according to a report of it which I have seen published; and it
is some evidence of the justness of my construction, that I had
not any knowledge of that report when I prepared the foregoing
on this point. Different minds without communication thinking
the same thing, furnishes a proof in favour of the deduction.

2. A second point in this case, to which the verdict is sub-
ject, is, whether the decree of the Court of Vice Admiralty at
Gibraltar^ is or is not conclusive evidence of the facts set forth
in it; and if conclusive, whetherit discharges the underwriters.

The judgment of a foreign municipal court is not conclusive
in England. An acquittal in a foreign court is a bar in a crimi-
nal prosecution; (Bul.N. P. 245.) but a judgment in a civil ac-
tion is examinable. The issue of nul /ie/ record goes to the jur}-,
because there is no way of bringing the record into court; and
the seal of a foreign court must be proved by testimony. The
judgment is examinable, because when the court is calU d upon
to enforce the judgment, it claims a right to examinejthe ground
of it. Doug. 1.2//. Black. 410. Peak Ev. 70. The m volo would
be a better reason; for whv shall the lex loci govern the contract,
and not the forum of the place detei-mine the controversy which
arises out of it ?

OF PENNSYLVANIA ,317

But if the judgment of a foreign municipal court, even be- 1808.
tween the same parties, where there has been an actual contesta- Calhoun
t\o litis^ shall not be held conclusive, why shall the judgment of a -v.
foreign maritime court form an exception, and conclude? It is Ins. Co.
true, the domestic court in a case of insurance is not called
upon to enforce the judgment of the foreign court: but it is
called upon to enforce that which depends upon it, and is
drawn from it. We must therefore look to some other source
for the reason of the exception, and to some other source than
reasons drawn from the effect of judgments of domestic courts
of a peculiar jurisdiction. For reasoning from that source fails,
when we consider that the community has the framing her
own jurisprudence, and the constituting her own courts, with
powers and limitations as to all matters within herself; and she
has it in her power to consider the judgment of one court or
another, conclusive or examinable, as she pleases. It is true we
may argue, that as in our domestic courts of peculiar jurisdic-
tion we hold a judgment conclusive, so we ought to hold the
judgment of a foreign court of peculiar jurisdiction, conclusive.
But it will not follow: for the same reasons of policy which may
lead to protect our domestic judgments, and give them a con-
clusive effect, may not hold in the case of a judgment of a fo-
reign court.

Different results on the same question in the foreign prize
court and collaterally in the domestic court, is an argument
from inconvenience. But the same thing is suffered in other
cases. It must not only be on the same question, but between
the same parties, that a verdict or judgment in the common
law court at home, can be even given in evidence, much less I)e
conclusive; therefore there mav be different results on the same
question, in the same court, as it affects strangers, parties, or
privies. All the world are parties to the sentences of these
courts of peculiar jurisdiction, say judges and some commenta-
tors. But that in reality is not the case; nor is it the ground of
the policy. " The ground is the peculiar jurisdiction ol the
*■' courts, independently of other considerations; and not in rc-
" spect to any distinction of persons, stranger, ])arty,or j)rivy."
Ilartr. Imxo Tracts 4.57. But I have nothing to do with this; I
am only shewing that the inconsistency of contrary results on
the same question, even in the same court, is an inconvenience
which the law, for the sake of justice, cannot but endure.

318 CASES IN THE SUPREME COURT

1808. ^^ ^^^ consider the judgment of a foreign court as conclusive,

■7; it must be because the community under which that court is

Calhoun _ -

X-. constituted, demands it of usj or because our own convenience
Ins. Co. renders it expedient. If the community demands it of us, it
must be in virtue of a treaty, or under some law of nations.
Treaty in the present case is out of the question: for there is
no such provision in any treaty we have with foreign powers;
nor have I ever met with, or heard of such a provision in any
treaty. Is it a law of nations? If so, where is it laid down?
With what writer found? The Fre7ich disclaim it. " As between
"the insurer and insured they enter into the justice of the con-
" demnation of a prize court." (1 Emerig. 458.) The English na-
tion alone gives it countenance. The ideas of one nation cannot
make a law of nations. But it may be said, the reason of it, the
necessary policy, makes it a law. But what reason? what policy?
How are nations interested in carrying the judgment of a prize
court farther than to protect the thing sold? On the score of
convenience to ourselves, provided it breaks no relation with a
foreign nation, what is it to the home government how the
judgment of a foreign court is considered, as to its effect in a
matter of meum and tiiwn between citizens of the home govern-
ment, unless to let in an examination of the prize court sentence,
in order that the justice or injustice of it may appear, and be
known to the public?

But it is alleged that the Ejiglhh common law courts have
adopted it as a principle to a farther extent; and thence it has
become common law, that the sentence of a foreign prize
court shall conclude, not only in rem^ but in a matter where
the effect of the judgment shall come collaterally and inciden-
tally in question; that the judgment of the foreign prize court
being placed on the same footing with that of the domestic
prize court, and the common law being our law, we are pinned
down, and cannot bring in question the justice of the judgment
of the foreign prize court. If this is so, I do not see that it can
be done, even by consent. A wager would not be sustained in
the English courts, which would bring in question the justice of
the judgment of a court of a peculiar jurisdiction, nor would it
be suffered in any action where the judgment came poUaterally
and incidentally in question. If so, and the judgment of a fo-
reign prize court is put on the same footing with that of the
domestic prize court, and it is adopted as a principle of the
common law, that the judgment of a foreign court is conclu-

O F PENNSYL V AN I A . 319

sive to all intents and purposes whatsoever, and its judgments 1808.
are protected with such sacredness and respect, as not to be ^ _ ~ .
touched as to their effect, even collaterally and incidentally, no -v.
understanding of the parties, no stipulation, can enable the Ins. Co.
court to go into a traverse of the grounds of a foreign judgment, Penn.
so as to examine the justice of it. No help therefore can be de-
rived from the stipulation in this case, " warranted American
"property, and to be proved here." But I deny that it is a prin-
ciple of the common law, that the effect of the judgment shall
be carried further than to protect the thing sold. What evidence
have we of it? ^Vllat case before the date of our charter, or even
before our revolution, where a decision has taken place precise-
ly on this point, with a reference to common law writers, or to
year books, or to books of entries, or reports? For I would re-
quire something of this nature before the decision of a Judge,
even an hundred years back, or two hundred, would pass with
me as conclusive, unless the reason of the case was with him,
and I could clearly see that even if the thing was not so, it
ought to be so. In the case of Hiighea and Coriicliufi, which is
the leading case on this point, there is no case cited, no autho-
rity from whence it might be seen what was the extent of the
doctrine. It is put on the foot of reason and general policy.
Now if reason and general policy carried it farther than to pro-
tect the thing sold, how can the courts vary the policy when
carried farther, and let in an examination bv consent? The rea-
son given in Ilughca and Corncliua is, that if we do not pay
respect to the sentence of the court of a foreign nation, the fo-
reign nation will not respect the sentence of our prize court.
The extent of the decision must be tested bv the reason of it;
and if the decision extends to the case of the insurer and insur-
ed, the reason must. The argument will then be, that the courts
of a foreign nation will not respect a sentence of our courts,
unless we consider the adjudication as conclusive on the con-
tract of insurance. In that case we must not put it in the power
of parties. In- their stipulations, to involve us in this dik-mmu.
No: the stii)ulation would be contrary to good policy, and
could not be endured; for though it might shew the under-
standing of the parties, yet it would be an understanding which
could not be carried into effect. Who ever doubted the under-
standing of the parties in the contract of insurance, could it
have been left to the juries at all times on that point? That of
Itself would prove that the examination of a sentence broke no

320 CASES IN THE SUPHEME COURT

1808. lelation uith foreign powers, and must be a matter of indifferi

Calhoun^"^*^ to them, provided it is not suffered to affect the sale of the

V. property which has been transferred under a sentence of their

Ins. Co. courts. The point in Hughes and Corneliitfi respected only the

1 cnn. property which had passed under a sale of the prize court, and
nothing farther was determined in that case; but the generality
of the reason given, has been assigned in subsequent cases as a
ground to carry it farther, and it has been always argued as at
this day, that because a court of peculiar jurisdiction, the sen-
tence of a foreign prize court should be put on the same footing
with a judgment, decree, certificate, or sentence, of our own
courts of that description: not distinguishing between the neces-
sity, convenience, or policy, in the one case, which may not exist
in the other. I have traced the history of this conclusiveness of
the sentence of a foreign prize court from the first dicta which
seemed to look that way, to the latest decisions; and have
seen from what misconception and misapplication the doctrine
has arrived at its present growth, and how much the Eng-lisk
courts are embarrassed with it; which embarrassment lies not
in our way, because the decisions which fetter them, beginning
with Bernardi and Motteiix, have been since our revolutionary
period. But even if they were before, and fell upon us as they
do upon tliem, I would think it competent to look into the
grounds on which the first decisions went, and restrain them to
just limits. If from misconception or misapplication a doctrine
gets a footing, there can be nothing in the way of setting it
right, but that of property having passed under it, or the incon-
venience of unsettling adjudications. It not being real estate
that is here to be affected, but matter of personal property re-
coverable or not recoverable in a personal action, it can only be
the last consideration that can be in the way of overruling an
erroneous principle in this case, even supposing that it had got
a footing in the jurisprudence of this country.

The adjudications of foreign prize courts are supposed to be
founded on the law of nations, and to be conducted with equity.
But this presumption, even in the opinion of the English courts
themselves, with regard to the French courts, has totally failed;
and they have proved this by granting salvage on the recapture
of neutral property from the French^ considering capture and
condemnation as the same thing. (2 Rob. 246.J

These United Slates say of the English captures, de tefabula:
this being the case, what reasons of policy can lead to counte-

OF PENNSYLVANIA. 321

nancing the adjudications of either, orto respect the sentence fur- 1808.
ther than as falling on the thing captured and sold:' On the con- liJ^LHotJ>r
trary, good policy would seem to require that an examination v.
of the grounds of the sentence should be let in collaterally or inci- I"^- Co-
dentally, as it would afford an occasion to ascertain the robberies
that take place wider the forms of justice.

I see therefore nothing on the ground of national interest or
policy, to exclude the parties to a contract of insurance, from a
re-examination of the cause of condemnation, according to the
understanding of the contract, implied in the undertaking, or
expressed in the stipulation. But it is made a point:

3. Whether the condemnation was not owing to the gross
misconduct of the Captain: and whether it was not such as to
discharge the underwriters.

This depends upon the expression of the Captain in answer
to the admiral, who had said " We have thoughts of setting
" vou at liberty: in that case, what will you dor" It is impossi-
ble to say now, how the thoughts of the admiral might have set-
tled down, and into what resolved themselves; whether to set
at liberty, or retain the capture. It is certain that if the admiral
had really any thoughts of setting at liberty, this declaration of
the captured was calculated to prevent it. It is very probable it
did prevent a restitution. But as the capture was complete be-
fore, a pri7A'masfer on hoard, and as there was a detaining con-
trary to treaty, and a right of abandonment arisen, the question
comes to this, — whelherlhedeclarationof the Captainmade sub-
sequently, and calculated to prevent restitution, would relieve
the underwriters from the loss, before complete. It would seem
to me that it would be too much to say, that the declaration of
the Captain, unequivocal as we are willing to suppose it, did
prevent restitution; and unless I could say that it did, I do not
see that I can avoid deciding for the insured in this case.

But let it be taken that the meaning of the Captain was a
plain declaration^ that unless he got new instnations, ncrv or-
ders, from his owners, a thing impossible, he would as soon as
at liijerty steer for Cadiz; and that this prevented the restitution
of the capture, and did in fact amount to the same thing as it
in the first instance he had attemptcfl to enter after being turn-
ed away, and by this means had broken the blockade. The final
question in this case will arise, was it barratiy in the Captain?
For though the warranty on the part of the assured, of the pro-

VoL. I. 2S

522 CASLS IN THE SUPREME COURT

1 808. pcrty being neutral, may bjp con.sidered as warranting against all

/. that divtsts the neutral character, and so against the breach of

,,. a blockade; yet it must consist with the warranty on the partoi

Ins. Co. the insurer, viz. against the barratry of the Captain; and if the

rcnn. neutral character is divested by an act of barratry in him, the
insurers are liable. It will then be a question whether the breach
of the blockade in this case will be barratry, as alleged, by the
declaration of the Captain to the admiral of his intention to
break it; supposing it under all circumstances to be a breach of
the blockade. It is a criminal act, a violation of the treaty. It
is not stated to be with the knowledge or consent of the insured.
But the Captain may have thought it for their benefit, to run
the risk of attempting to enter; and it is not a part of the point
submitted, that he had any interest in it. The case then is this:
A crime^ the cause of the loss, committed without the consent
of the insured, without interest to the Captain, and which he
may have ill-judgingly thouglit, or, to put the case stronger,
did think, y^r the benefit of the oxvners.

" It appeared to me," says Lord Mansfeld^ *' that the nature
" of barratry had not been judicially considered, or defined in
" England with accuracy. It is not easy to collect from a gen-
" eral verdict, or from notes taken at Nisi Prius^ what was the
" true ground of decision."

After considering the common law cases o{ Knight iMi([ Cain-
bridge^ Stamina and Brorvn^ and Elton and Brogden., he ob-
serves, " that these cases do not afford any precise definition of
"what barratry is; therefore I wished the cause to stand over
" to be argued by one counsel on a side; I have in the mean time
" considered of it, and consulted with men conversant in mer-
" cantile affairs, and I am now veri^ clear. ''^ {Coxvp. 153.) He
defines it to mean cheat, fraud, cozening, or trick. The fraus^
dolus aiit deception had been given as the definition before;
and I cannot find any thing more explicit here. So that in fact
however clear to him, he has left it as dark to me as he found
it. But if he means that, in application to the case before him,
he was clear, I agree that he might be so.

Parke (94'.) defines it " any act of the master or of the
*' mariners, which is of a criminal nature, or which is grossly
" negligent, tending to their own benefit, to the prejudice
" of the owners of the ship, without their consent or privi-
" ty." If the words " tending to their own benefit" were

OF PENNSYLVANIA. 323

struck out of this definition, I should be willing to adopt it. 1808.

For though some indulgence of self-interest may occasion this (-^lhoun

crassa ncgii^entia^ or lead to this conduct, and usually appears

in the case, yet without this ingredient, I take it there may be Ins. Co.

barratry. At least it is not necessary for the insured to shew it. Penn.

The law will infer it from the criminal act^ or the grosa

neplip-eiice.

In Knight and Cambridge^ says Lord Mansfeld{Coxvp. 183.)
*' the neglect of the Captain in not doing his duty was adjudg-
" ed barratry; for it was his duty to pay the port duties, before
'' the ship went out of port, and he being guilty of neglect
"in not discharging them, it was adjudged to amount to
" ban-atry."

" With us," says Marshall (445.) " no fault of the master or
*' mariners amounts to barratry, unless it proceeds from an in-
" tention to defraud the owners of the ship." In his note at
this place he cites an authority: non omn/s navarci culpa est bar-
rataria; sed solum tunc ca dicitur qiiando comittitur cum prce-
existenti ejus inachinationc^ ct dolo proeordinato ad casum. There
is nothing here of intention to defraud. It is only of intention
to do the act; that is, it must be rvilful. The first case which he
gives to illustrate his definition (7 T. R. 505.) was that of a
deviation; but fraud was negatived by the verdict of the jurj';
and therefore barratry could not be inferred. But in Moss and
Pr/rom (6 T. R. 379.) Lord Kemjon, speaking of the devi-
ation by the Captain, lays it down that " it was contrary
" to his duty, and to the prejudice of his owners, because they
" stii)ulated by the charter-party that the ship should sail di-
" rectly to Liverpool^ and therefore they were lluble to the
" freighters for any damage that might happen in consequence
" of that deviation." In this case the Captain had no interest
for himself; but what is more, was acting, as lie thought, for
the benefit of the owners; but by Lawrfnce J. " though the
" Captain might conceive that what he did was for the benefit
" of his owners, vet if he acted contrary to his duty to them, it
" was barratry."

We are furnished by the counsel for the plaintiflT with a case
in Rclf's Gazette of the Glh March 1 807 containing a report of
a decision in the Court of King's Bench of the 27th Novem-
ber ISOG, Earl v. Rowcroft, which recognises this doctrine;

24 CASES IN THE SUPREME COURT

1 808. ^"^ though but a newspaper report, yet I hiclinc to think it
~ genuine, and extract it here as it stands in the Gazette.*

^, Applying the doctrine of this case to that I)efore us, it would

Ins. Co. scL-m to be immaterial what the Captain thought in his declara-

^^""- tion, or whether he thought at all. It was wilful, and intended

bL-ncfit to himself or owner: it vvas mischievous^ and taking it

to be the cause of the loss, it was barratry. So that quacwique

via the insurers are liable.

New trial refused, and
Judgment for Plaintiff.

• Since reported In 8 East 126.

Maifepth ^^^^ Comnioin\t;aIth against Cochran and others,

Officers of the Land Office.

IN June 177 o yames Moore agreed with Alexander Hunter
and William M'Cord to take up lands, in which they were to

An appeal

does not lie

from the "^ and ^^VilUam IW-Loraio take up

board of j^g equally interested; but the purchase money in the first in-

tlie Court of stance was to be wholly advanced by Moore^ and one third was

Common afterwards to be repaid bv each of his partners. The purchase

Pleas al-

tlioug'h an was accordingly made, and six of the warrantees conveyed to
act of \s- Hunter. The land fell within the seventeen townships. All the

semnlv uj- i , i i c 4 x. Aj -i

rccts the of- parties released to the Commonwealth under the act ot ^th April
f'^<^'"V^ ^1^^*1799, but the commissioners awarded the valuation to 3Ioore

board lo do ' i • i • j i,-

certain alone, no part of the purchase money havmg been repaid to nim.

tlung-s ;n Hunter and M'-Cord'^s representatives entered a caveat in the

case 0/ an ' _

Appeal. land office against issuing a ticket to the Comptroller and Ke-

Tlie only „lster General in Moore'^a favour, and they were heard by the
mode of con- o . _ , . , p

testing their board of property upon the question of their ngnt to a part oi

decision 13 ^j^g valuation; but the caveat vvas dismissed. The board how-
bv an action • • r i,

between the ever withheld the ticket in conformity to the third section ot the

ordllliV" ^''^ ^^^^ above mentioned, which among other things provides, that

%vay. " In case of disputes between Pennsylvania claimants before

" the issuing of the certificates in pursuance of this act, such

" disputes shall be decided by the board of property according

*' to the general usage; provided that their decision shall not

*' prevent the party against whom it is made, from prosecuting

" his claim in the courts of law an usual; and in case of an ap-

OF PEXNSYLVAXIA. 325

"• /jf-a/ i'rom the decision of the board of property, the certlfi- 1808.
" cates shall not issue until the dispute is decided.'''' 4 St. Lazvs (^o^-^j^on-
400. Hunter and M'-Cord appealed from the decision of the wealth
board of property to the Common Pleas of Lancaster county, ^•
and the appeal was afterwards removed to the Circuit Court.

In December 1805 Jngersoll^ upon the affidavit of Moore's ad-
ministrator, obtained a rule upon the defendants to shew cause
why a mandamus should not issue to them to gvitnt the ticket to
him for the whole valuation; and his ground was, that no appeal
was authorized by law, although the word appeal \v?is used; but
that an action was the only mode of setding the dispute, which
the losing party had omitted too long to adopt, now to prevent
the board of property from putting the successful party in pos-
session of his rights.

The propriety of the appeal and also of the mayidamus^ were
by consent blended in argument at the present term by Ingersoll
for Moore^ and by Tilghman for Hunter and M'-Cord; and
the judges now delivered their opinions upon both questions.

Tilghman C. J. This case arises under the act of 4th Apr'il
1 799 " for offering compensation to the Pennsylvania claimants
" of certain lands within the seventeen townships in the county
" of Luzerne.'''' 4 St. Laws 4(X). The third section of this law-
enacts, that in case of disputes between the Pennsylvania claim-
ants, (before the issuing of the certificates in pursuance of the
act) such disputes shall be decided by the board of property
according to the general iisage; provided that their decision
shall not prevent the party against whom it is made, from pro-
secuting his claim in the courts of law as usual, and in case of
an appeal from the decision, the certificates shiUl not issue till
the dispute shall be decided.

There was a dispute before the board of property, between
Alexander Huntrr and the representatives of William M'-Cord
deceased j)l;iintifTs, and the administrator of James Moore de-
fendant. The board decided in favour of the defendant, and dis-
missed the caveat of the plaintiffs. The party against whom the
decision was made, entered an appeal to the Court of Conunon
Pleas of Lancaster county, which was removed to the Circuit
Court of the same county. On the other hand, the administrator
of Moore has applied to this court for a mnndamus, to compel
the officers of the land office to issue a ticket to him, I)y which

326 CASES IN THE SUPREME COURT

1808. J^c ™'^y be enabled to receive from the Commonwealth the

"7i whole money at which the land was valued. We are now to dc-

Common- . - • • i i

wealth ^"^^ o" ^^^ appeal and the mandamus. I think it very clear that

V. the appeal must be dismissed; there is no law or precedent au-
CocHRAV. thorizing an appeal from the board of property to the Court of
Common Pleas of any county. The only mode of appeal is by
bringing an action at law. But in the present case there is great
difficulty in bringing an action. The party against whom the
board of property decided, cannot bring an ejectment, because
he has released his title to the Commonwealth. Neither can he
bring an action for money received by his adversary for hi»
use, because no money has yet been received. Under these cir-
cumstances I do not think it right to issue a mandamus. The
appeal being dismissed, the board of property are at liberty to
act according to their discretion. And I should think it no
abuse of that discretion, if they were to say, that inasmuch as it
was the clear intent of the legislature that no money should be
pa'id^ till the party against whom they decided had an opportu-
nity of a trial in nature of an appeal, and as such trial cannot be
had unless the parties by mutual consent agree upon some mode
of bringing the matter before a court of law, they will withhold
the ticket until the administrator of James Moore consents to
put the matter in train for a speedy decision. If after this in-
timation, any affxtation of delay should be manifested by the
party against whom the board have decided, a ticket might be
issued to Moore immediately.

Yeates J. The proviso in the third section of the act of 4th
Apr\l 1 799 is involved in great obscurity, from its not prescrib-
ing the mode of appeal from the decision of the board of pro-
perty. I am strongly inclined to believe that it must be by
action at law. But in what form? The Pennsylvania (i\'A\vci^.ViX
must release to the state before he can be entitled to compensa-
tion; and when he is divested of his title, he cannot support
ejectment. The words are, " the certificates shall not issue un-
'' til the dispute shall be decided." Until the money is paid, I
do not see what kind of personal action can be maintained.

The board of property are to decide in case of disputes be-
tween Pemisiflvania claimants, according to the general usage.
They seem to have done so in the present case. The appeal
must be dismissed as irregularly made to the Common Pleas

OF PENNSYLVANIA. 327

of Lancaster county. But \i Alexa7ider Hunter and John Cook 1808.
are willing to institute a suit to try their right, I do not see how common-
the certificate can be issued until that matter is settled. It will wealth
be found tht interest of all parties to agree on some amicable "J'-
mode of deciding the dispute. The motion for a jnandamus
as to the ticktt must be denied, as it goes to the Comptroller
find Register General.

Smitu J. was not present at the argument.

Brackenridge J. concurred.

Appeal dismissed, and
Rule discharged.

"x^lc Champnevs against L v l e and others, assiernees of Saturday,

\^'t**' T^ ^^ 1 r T>. 1 1 X Aprils.

V \v' ^ Richard Maris and JohnDavis, bankrupts.

THIS was an action for money had and received to the The prcfer-
plaintiff's use. On the 11th and 15th ^/;ri/ 1801, ^^«'"/'-[,".",fact"of
net/*, as the surety of Maris^ executed three bonds to the UnitedUt March

States for duties upon coods imported, which he afterwards '''■^7.^°.

' " ' ' sureties m

paid. Maris became a bankrupt within the act of Congress rnstom-
passed the 4di of April 1800, and this action was l^'"OUght Jj'jJJf* '^""j^
against his assignees to recover the full amount of the sum paid b:mie to the
to the United States, with interest up to the time of judgment, t-j"'^^^^ -^^^^^
in preference to the other creditors. The jury found a verdicttaken away
for the plaintiff for his whole demand, subject to the opinion of ^'^^ ^^ actfuip
the court upon two points: surriy is en-

TTri 11 r • • • 1 1 1' 1 tided to nri-

1. Whether the prelerence given to sureties m bonds tor the ,„.ny ^f ' .

payment of duties by the act of 1st March 1799, was taken "^^"t out of

I 1 I I c ^ 4 -I ^'"^ hank-

away by llie bankrupt act ot 4th Af)ru 1800. mnt's estate

2. If not, then whether the plaintiff was entitled to recover in- *'"" '^'"^''

, L I r L r 1 1 principal and

ttrest subsequent to the date 01 the commission 01 bankruptcy. nitcrMt.

By the 65th section of the " Act to regulate the collection of
" duties on imports and tonnage," it is enacted that in all cases
of insolvencv, or where any estate in the hands of the execu-
tors, administrators or assignees, shall be insufficient to pay all
the debts due from the deceased, the dci)t due to the United
Stofrv on any bond for the pavment of duties shall be first satis-

Lyle.

328 CASES IN THE SUPREME COURT

1808. fictl; a"tl if the princip;xl be insolvent, and the surety shall pay,
Champ^ he shall have the like advantage, priority, or preference, for the
NEYs recovery of the money out of the estate and effects of the prin-
'"• pal, as are reserved to the United States. It also provides that
on all bonds on which suits shall be connmenced, an interest
shall be allowed, at the rate of six per cent, per annum, from
the time when they became due, until the payment thereof.
By the 31st section of the " Act to establish a uniform sys-
*' tern of bankruptcy," it is enacted " that in the distribution of
" the bankrupt's effects, there shall be paid to every of the credi-
" tors a portion rate, according to the amount of their respective
" debts, so that every creditor having security for his debt by
"judgment, statute, recognisance, or specialty', or having an at-
" tachment under any of the lav/s of the individual states or of
" the Ujiited States on the estate of such bankrupt, provided
" there be no execution executed upon any of the real or per-
" sonal estate of such bankrupt before the time he or she be-
" came bankrupt, shall not be relieved upon any such judgment,
*' statute, recognisance, specialty, or attachment, for more than
" a rateable part of his debt, with the other creditors of the
" bankrupt;" and the 62d section enacts " that nothing in
'' this law contained, shall in any manner ajfect the right of
'•'• preference to prior sati faction of debts due to the Uni-
" ted States^ as secured or provided by any laxv heretofom
" passed."

The points were argued by Milnor and Ligersoll for the
plaintiff, and by Raxvle for the defendants.

For the plaintiff. The Arst question is whether the bank-
rupt law constructively repeals the provision in the 65th section
of the act of 1799 which gives the plaintiff a preference; for it
is clearly no repeal in terms. In the case of constructive re-
peals, it is requisite that a plain intention to this effect should be
shewn by the legislature; for if the statutes can stand together,
it shall be presumed to be so intended until the contrary mani-
festly appears. That a repeal could not have been intended by
Congress, is obvious from many circumstances. In the first
place, the case of the plaintiff, a case of clear preference prior to
the bankrupt act, is not enumerated in the 31st- section, with

OF PENNSYLVANIA. 329

those securities and prc;ferences which Congress meant to de- 1808.
feat. In the next place, the 62d section expressly saves the pri- p
ority belonging to the United States, and the plaintiff stands in keys
their shoes. But further, the preference given by the act of v.
1799 is not confined to a surety who pays for his bankrupt ^^^e.
principal, but it extends to the case of voluntary assignments,
and affects the estate of a person who dies without assets to pay
all his debts. Now the repeal can go no further than to defeat
the preference in case of bankruptcy; and then the other priori-
ties remain, which is absurd. But if the repeal has taken place,
what is there to preserve the preference to sureties who have
executed and paid the bonds /(r/ire the bankrupt law ? There
is no difference between these and subsequent bonds, all are
affected or none; and the argument for a repeal therefore
supposes a monstrous breach of faith. The obvious policy
of the law of ir09 is to induce persons to become sureties,
and sureties to pav the money, by promising them a se-
curity; and it cannot be credited that the legislature would
be satisfied to withdraw such a promise, in an ambiguous
manner.

The second question depends altogether on the first. The
rights of the United States are preserved, and oi course with
them a right to the interest, which the law directs to run on until
the payment of the bond. 1[ the surety is entitled to the
" like advantage, priority, and preference," his title must go the
whole length. The reason for limiting the interest in common
cases to the date of the commission, does not apply. The fund
being dead, it is all the same to creditors who must share pro
r^/r/, whether interest runs on or not. Even in the case of a
mortgage, the assignees if thev wish to redeem, must pay full
interest. 1 Co. limikrvpt Law, 182.

For the defendant. Kvery affu-mative statute is a repeal by
implication of a precedent affirmative statute, so far as it is
contrary thereto. 1 1 Rep. 61. I'oster''s case. The question then
is, whether the jirovisions of the b;iiikrupt act are opposed to the
preference given fiy the act of 1 799. That tlie policy of the law
is opposed to it, there can be no doubt. It proceeds with a view
to divide the property of an insolvi nt ratc.-iblv nmong all lii»

Vol.. I. I'V

330 CASLS IN THE SUPREME COURT

1808. tic<liti>ib, ami is in open hoslillty to such preferences as an in-
~7~7~ solvent makes Ix-lorc an act of bankruiUcy in contemplation of
>EYs that event. Its provisions are also opposed to it. The single
^'' case in which the creditor of a bankrupt is entitled to a pre-
^^'^' ferencc under this law, is that in which he has a specific
lien, a mortgage, a pawn or pledge, or an execution exe-
cuted; and the reason of it is, that the assig-nees cannot ask
equity from the holders of the property without doing com-
plete equity to them. But even in this case, if the lien creditor
asks to come in under the assignment for a balance beyond the
value of the pledge, he must come in as other creditors, so that
his security arises solely from possession of the property, and
is limited to that extent. 1 Co. Bank. Law 161. The preference
under the law of 1799 must therefore cease by reason of the
general provisions, unless it is expressly saved; whereas the
argument for the plaintiff supposes that it will stand from its
being consistent with them, unless it is expi-essly taken away.
The constitutionality of the preference to the surety has always
been questioned, and suffering it to fall in consequence of its
collision with a subsequent act, was the best way of terminating
it. But it is said that the preference is expressly saved to the
United Stafa-. This is still worse for the case of the plaintiff;
for the express saving of the rights of one person, shews an in-
tention not to save the rights of others. As to the effect of the
bankrupt act upon bonds given prior to its date, the question
does not arise; these bonds were given and paid subsequent to
that law.

The question of interest does in some measure depend upon
the other; but this is a question as to the extent of interest,
and not whether any is chargeable. Now there is not a case of
any kind in Avhich a person claiming from the bankrupt fund,
even if he has a specific pledge in his hands, is entitled to in-
terest after the commission. The fund earns nothing, and
should thcrelbre pay nothing. It is not like the case of as-
signees asking to redeem; it is the case of a person claiming
from the fund, and not from the individual. The act of 1799
docs not extend the preference to the interest; the provision is
introduced to prevent a doubt that the bond after failure of
payment carries interest.

Lyle.

OF PENNSYLVANIA. 331

TiLGHMAN C. J. delivered the opinion of the court. 1808.

The plaintifF was bound as security for Richord 3Iaris\ in Chamt-
sundry bonds to the United States^ for duties en goods ini- ^'i^^'^
ported, dated 11th April 1801. The plaintilFpaid those bonds,
and Maris became a bankrupt. Two questions are now sub-
mitted to the court.

1. Whether that preference which was given to sureties in
bonds for duties, by the 65th section of the act of Congress,
" to regulate the collection of duties on imports and tonnage,"
(^HJarch 1st 1799) was taken away by the act " to establish an
" uniform system of bankruptcy tlu-oughout the United Stat cs.^^
{April 4th 1 800.)

2. If such preference is not taken away, then, whether the
plaintifF is entitled to recover interest subsequent to the date of
the commission of bankruptcy.

The 65th section of the act to regulate the collection of
duties &c. provides that in case of insolvency of the obligors,
or in case of their death, and not leaving sufHcient assets to pay
all their debts, the debt due to the United States on bonds for
duties, shall bcjirst satisfied; and that if any surety in such
bonds shall pay to the United States the money due thereon,
" he shall have and enjoy the like advantage, priorit}', and pre-
" fcrence, for the recovery and receipt of the said money, out
" of the estate and effects of such insolvent, or deceased prin-
*' cipal, as are reserved and secured to the United States.''''

The bankrupt law provides in general for the equal distri-
bution of the bankrupt's estate among his creditors, without any
preference, except as to tliose creditors who had liens existing at
the date of the act. But it is enacted by the G'id section, that
nothing contained in that law " should in any manner affect the
*' right of preference to prior satisfaction of debts due to the
" United StateSy as secured or provided by any law theretofore
" passed."

It would have been an act of such extreme injustice to take
away from sureties in custom-house bonds, that preference
which had been assured to them, and on the faith of which
they became l)ound to the United States, that nothing but the
clearest expressions could induce me to suppose that congress

Lyi.e.

332 CASES IN THE SUPREME COURT

1808. li^<l such intention. And whatever is the construction of the
Champ-~ hankrupt law wilh respect to bonds passed before its date, it

NKYs must be the same as to bonds of subsequent date; for not the
■''• least distinction between them is to be found in the law. Now
it appears to mc, that the provision in the 62d section of the
bankrupt law, that nothing therein contained should affect the
" right of preference to prior satisfaction of debts due to the
*' United States^ as secured by any prior law," may fairly be
construed so as to preserve the rvliole riglit of preference,
touching these debts, whether that preference was given to the
United States^ or to sureties in the bonds. I am the more in-
clined to adopt such construction, because otherwise, not only
would the United States be chargeable with the flagrant injus-
tice I have mentioned, but with the ab.snrdity of taking away
the preference of sureties in case the principal became a bank-
rupt^ but leaving it untouched when he died, not a bankrupt,
but wilh an estate insufficient for the payment of all his debts.
Besides, the general creditors of the bankrupt would derive but
little advantage from the construction contended for; because
the preference of the United States, is undoubtedly preserved,
and they might and ought to call on the assignee for payment
of the xvhole debt. Had congress thought, as has been suggested
by the counsel for the defendants, that the preference of sureties
was in its nature unjust, and perhaps not strictly warranted by
the constitution, they surelj- ought to have openlj' abolished it
altogether, (taking care that no injury should arise to those
persons who had acted under the faith of an existing law) and
not have made 7\ partial repeal, in the obscure manner in which
it is said to have been effected by the bankrupt law.

I am therefore of opinion, that the bankrupt law did not re-
peal those provisions in former laws, which in cases of bank-
ruptcy gave a preference to sureties in custom-house bonds.

As to the second point, the 6Gth section of the act to regu-
late the collection of duties &c. enacts, that " on all bonds on
" which suits shall be commenced, an interest shall be allowed
" at the rate of six per cent, per annum, from the time when the
" said bonds became due, until the payment thereof;" no dis-
tinction is made between suits brought by the United States,
and by the sureties. Being of opinion then, that no part of the

OF PENNSYLVANIA.

advantage given to sureties by this law is taken away by the 1808.

bankrupt law, I must also be of opinion that the interest, which ~7T" "T

is part of that advantage, is recoverable in a suit brought by the neys

surety against the assignees of the bankrupt. "y-

Lyle.
Judgment for plamtiff.

whBoggs administrator of Calbraith agatjist Black. SatuiJay,

f6« • April 2d.

\^ In Error.

125
294

W''RIT of error to the Common Pleas of Dauphin county. Notice te
Calbraith on the 29th March 1782, leased to ^/«f/ a S of I «r.
tract of land, to hold from jear to year from the date during t-i'" year, is
the pleasure of the landlord, under an agreement that the te- bv\he bnd-
nant should improve tiie land by cutting oif the timber so as to'"rd'sper-
clear it, put it under fence, and pay the taxes. On the 26thlen.!Jn"^o J.^.
April 1802, he instituted a proceeding under the landlord and'"'"'? i" pos-
tenant law, to turn Black out of possession; and the jury by t,nthe year
their inquest found that the term was fully ended on the 29th ''*f'^'".^l'e ex-
March 1801, that the landlord in the month o( Februarif ISOOuleVmice;
gave Blaci notice to quit on the said 29th of March, and that'^'**"'^'^-
notice to quit was given at " divers other days and times, to wit, u..'iia'nt' hdd^

" on the 25th oijanuurij last." (1802). They found all other '^X ^'^ "»-

» • 1 r ^ I ' • 1 1 ' 1 1 1, , />roi7np- lease,

material tacts, and possession was awarded to the landlord, ^l,at 1°, to

The record of the inquisition was removed by certiorari to the^''^''"" '""^

/■' r>i 1 1-1 • 1 • • k;iici; tlic

1.0m mon rleas, where the judgment ot the justices was revers- land and pav-
ed, and restitution ordered j and the cause was now brought up!.''*^ ^"2^*^^ '"
... 01 iipn „f rent,

by writ of error. o)„. \vi,ether

tlic notice to

In^er.soll {or the defendant argued, that by the finding of the Jf',"j^'^.'5^^['''"'"
jury, the three months' notice required hy tlie act of 1772, had iandl'uidand
not been given. The notice in F< bruary 1 80(J to quit on the 29th Ij^lIIujc"*!^..
March 1801, was waived; for as this was an improving lease, <ii iluc*
3uff.:ring the tenant to stay and improve the land was equiva- [ill.".'\'!fecn"j
lent to the acceptance of rent due after the end of the term, <>r the term
which was clearly a waiver of notice. Charter v. CorJwent. (a)
niari was tli.n tenant for a jear ending 29th Ahirch 1802; and
if sf), the notice on the 25ih Jaiiuanj was too short, as it was

(rt) DUf K. 219.

334 CASES IN THE SUPREME COURT

1808. "Ot given three months before the end of the term. This is the

7^ ^ law in England as it respects the half year's notice, and has

-;,. been ruled to be the true construction of our act by President

Black. Wilson^ :it Bucks, (a)

Hopkins for the plaintiff said, that the waiver was a question
for the jury, which was negatived by their finding, and which
did not appear from any thing on the record ; on the contrary,
the other notices kept it alive. But if the case turned on the
notice of the 25th Januarij 1802, it would nevertheless be Avith
the plaintiff, since it had been repeatedly held that the notice
was sufficient if given any time before the end of the year, pro-
vided it was three months before the application to the justices,
which in this case was on the 25th April 1802.

TiLGHMAN C. J. delivered the court's opinion.

This is a proceeding by a landlord against his tenant under
our act of Assembly. The jury found in favour of the landlord.
The proceedings were removed to the Common Pleas of Dau-
phin county where a decision was made in favour of the tenantr/^T'^
on which judgment a writ of error was brought in this court.

(rt) Brown ") THIS was a certiorari from the Common Pleas of Biicli
V. > county, to remove the proceedings before two justices of

Vanhorn. J tjie peace, under the landlord and tenant law, in wliicli
iud"ment was entered in favour of Broivii, the landlord. One of the excej)-
tions against the proceedings was, that tlic notice to leave the demised pre-
mises was not given three months before the expiration of the time.

Wilson President. The notice to quit appears from the record to have
been given less than tliree months before the expiration of the term. The
defendant is stated to iiold under a parol lease from year to year, during
w ill. In such a case tlie lessor cannot determine his will at any time he
pleases; the moment another jear commences, the tenant has a right to hold
until the expiration of it, and cannot legally be retjuired by the landlord to
leave the premises at any otlicr period. By tlie common law, ever since the
reign of Henry 8, wliere there was a lease from year to year during the plea-
sure of both parties, it was required tiiat half a year's notice to quit
should be given by the landlord to the tenant before an ejectment could be
brought. 2 J3i. Com. 147. And there have been repeated determinations that
the notice must be given half a } car before the end of tl)e year, or the eject-
ment cannot be suppcnted. The Court of King's Bench in the case of the
Lessee of Flower v. Darby and Bristoiv, 1 D. iSf E- 159. decided that the
notice to quit must end at the exjuration of the year, and several prior deci-
sions of the same kind were cited. The act of Assembly on which the pro-

OF PENNSYLVANIA. 335

The objection to the finding of the jury is that it does not 1808.
appear that sufficient notice to quit the premises was given by j^
the landlord. v.

The jury find that the lease expired 29th March 1801, and Black.
that notice was given in Februanj 1800 to quit on the said 29th
March 1801, and that the tenant had refused and did refuse to
complv with the notice; and that notice to quit was also given
at divers other times, particularly on the 25th Janiiarij 1802.
The inquesc was held 28th April 1802. The application to the
justices by the landlord was made 2Gth April 1802.
. TheactofAssemblv requires that it should be made to appear
to the jury " that the term is fully ended, and that demand had
"• been made to leave the premises three months before the ap-
" plication to the justices."

The objection raised by the counsel of the tenant is this, that
although the term expired 29th March 1801, yet as the land-
lord did not proceed to remove the tenant agreeably to his first
notice, the tenant stood in the situation of a person who had a
lease from year to year; and being in that situation, the land-
lord ought to have given him notice to leave the premises three

ceedinjfs in the case before us are founded, requires but tliree moutbs'
uotice, and provides a summary remedy for the landlord instead of an eject-
ment. But it does not alter tlic law witli ref^ard to tlie time at which the
notice must be {^iven. To enable the landlord to recover, the Itasc must be
full;: ended, and the lease caimot be fully ended unless tliree months' notice
has been pivcn before the endof the year; for the tenant is lej^ally in posses-
sion, as Ik* has a ripht to hold tliree months after notice; another year has
commenced, and by the agreement whicii tiie law implies, he is entitled to
continue in possession during the whole of it. The landlord cannot determine
iiis will by a shorter notice than one for tliree months.

The practice in the city of Pliiladctfiliia is I believe, contrary to the prin-
l[)le on which this court now decide; but I am not aware that it hasbctji
KTOfriiispd in any judicial decision. It may i)ro(liicc no inconvenience there,
thoiipb it would be very injurious if adoptcrl here. It is for the interest oi'
both landlords and tenants, that the rule should be as the court has stated
it; for otherwise, as farms are almost universally let only at a jiarticularsea-
'-'Ml of the year, the tenant mijcht be dispossessed at a time when he could
not proruri; anotli'r farm; anrl on the same principle- he mifjlit leave it :il ;■
I •rind wiien his landlord could not be supjilicd with another tenant.

Proceedings set aside
Cimdy for the plaint ifl'. Sit^ieajies for the defendant.

'The reporter is indebted for the above note to Mr President Wti.sox.}

CASES IN THE SUPREMl': COURT

1808.

BOGGS

Black,

months previous to the 29th March 1802. But the court are of
'opinion tluil nothing appears on the record to shew that the
tenant was to be considered in any other light than a trespas-
ser after 29th March 1801. It is not found that the landlord
accepted rent which accrued after that time; or did any other
act which directly or indirectly implied a renewal of the lease.
The jury have found all the tacts which are required by the act
of Assembly as a foundation for judgment of restitution to be
awarded by the justices. This court are therefore of opinion
that the judgment of restitution given by the justices was pro-
per, and that the judgment of the Court of Common Pleas re-
versing the said judgment of the justices, be now reversed.

Re-restitution of the demised premises to the landlord, is
ordered.

Judgment reversed.

Saturday,
April 2.

Desesbats against Berq^uier.

lb 3361
24 506
77 369

TN this case the Register's Court of Philadelphia county
-■- directed an issue in the Common Pleas to try the validit)-

A will of

personal

property

must be ex- of a certain writing bearing date the 8th of August 1798, pur-

ecuted ac- porting to be the will of Jean Theil deceased. The issue was

cording' to ' ° . "^

the law of accordingly formed in the Common Pleas, and removed by

the testa- certiorari into this court, where the following case was made
tor s uomicil , . .

at the time for the court s opinion.

of his death. u jj jg ^ feigned issue from the Register's Court to trv

If it is void . . ° , ...

by that law, " the validity of a certain paper writing purporting to be the

it will not cc ^.m of j^^j^ j^i^^ii deceased. It is admitted that the said

pass personal ...

prope.ty in a" instrument^ if it had been made by a citizen of Pennsylvania^

til eign u xvQuld be a zvilL and that if the testator had been a citizen

country, al- ' ^

though it is " of the said state^ the property bequeathed therein would

v'ith'aU the " have passed thereby , On the other side it is admitted that the

formality re-" said Jean Theil was an inhabitant of f cremie in the island

the7aws"of " °^'^'* Domingo^ and a subject of France^ at the time of ma-

tliat country. " king the said instrument; that he continued to reside there till

" the time of his death, and that by the larvs of the said island

" the said instrument is not, nor Tvas at the time it rvas made

" nor since, a last -ivill and testament; and that the said Jean

" Theil,, iroless this instrument is established as a will, died in-

" testate. That the property intended to pass by the said instru-

OF PENNSYLVANIA. 337

" ment, xvhich is all personal property^ was at the time of male- 1808.

" ing thereof, and hitherto has rt-mained and still remains, in the j)ggj.g.

" hands of persons resident in and citizens of Pennsylvania. That bats

" jNIr. Desesbats the plaintiff was at the time of making the i>-

" said instrument an inhabitant of .SY. Domingo, but at the time ReR^^ieu.

" of the death of the said Jean Theil, was an inhabitant of the

" island of Jamaica. If the court shall be of opinion that the

" instrument aforesaid under the above circumstances is to be

••' considered in Pennsylvania as the will of the said Jean Theil^

" then the probate thereof taken by consent in the register's

" office- in and for the city and county of Philadelphia, to stand

" valid, it being admitted to be in due form according to the

" laws of Pennsylvania; otherwise judgment to be rendered

" for the defendant, and the said probate to be null and void."

Tod and Hare argued for the plaintiff. The single question
is whether a Avill in perfect conformity with the law of Penn-
sylvania^ is effectual to pass personal property situated here, the
testator being a foreign subject domiciled in St. Domingo^
where the will was made, and l)y the law of which country it is
void. The question is a new one, and is not involved in any oi
the English decisions upon intestate succession. These deci-
sions have merelv settled the law, that in case of an intestacy,
the law of the intestate's domicil must regulate the distribution
of his personal property; a doctrine, that were it now for the
first time to be discussed, would encounter many objections.
But it proceeds in part upon a principle which sustains the pre-
sent will: namely, that since all succession rt*^ intestato is ground-
ed on the presumed will of the deceased, his estate ought to de-
scend to him whom the law of his own country calls to the suc-
cession, as the person whom it presumes to be most favoured
by the intestate. 2 Erskine's Itist. 69G. Or in other words, that
where a will is not expressed, the law of the domicil is raised
up to execute a presumed will. Wliere, however, a will is ex-
pressed, the presumption in favour of the law of the domicil never

arises; that law is (overlooked, and the law referred to by the tes-
tator must govern his testamentary arrangement I)Oth in form
and substance. Ind'-ed when- the presumption in iavoiw oi the
domiciliary law is rebutted by the act of making a will, foreign
courts have deinanded that the will should conform to the law
«f the place where the goods were situated, or otherwise to he
Vol. I. 2 V

ooS CASES IN Tin: bUPREiNlE COURT

1808. ■ without cflect. Thus in England i\ bastard cnjovs the privilege.
~1")esks- °* '^^'^'^'"S ^ testament, wliich docs not obtain in Scotland; and
RATS accordingly notwithstanding such a testament is made, his
1-- moveables in .S'co^/a;;^/' escheat to the crown. 2 Lord Kahncs Pr.
KRquiEU.^'^^ 03^^ Here the will is not set aside to let in the law of the
domicil, which would give the goods to an administrator to pay-
debts, to be in trust for children, or if he had none, then for
the ordinary, but that law being overlooked, the goods escheat
to the crown. So in England a 7mncupative will is sustained,
but it will not carry Scotch moveables; for by the law of Scot-
land^ which is the only rule to be followed since there is no
presumption in favour of the domiciliary law, writing is essen-
tial to convey moveables from the dead to the living. 2 Lord
Ka'imes 335. The cases from Avhich Lord Kaimes has extracted
these principles, have therefore decided, that in the event of an
express will, the testator must be such a person as by the law
of the country where the moveables are situated is competent to
execute the instrument, and the will such in point of formalitx
as the law of the countrv recognises. This may be going too
far. It may be very hard in certain cases to demand this con-
formitv; but a perfectly safe rule is to give effect to the law of
the domicil both in form and substance in order to execute a
will, but never for the purpose of overthrowing it. This con-
formity of the will to the law of the place where the goods arc,
has certainly existed without being thought of bad consequence.
In Boxvaman v. Rccve^ {ci) where a native of Holland made his
will there, and died possessed of personal estate in England^ the
will was proved in the latter country, which it could not have
been, if it was not in conformity with the English law; and in
11 Vin. 58. pi. 6. it is stated to have been given in charge to a
jury by Justices Doder'idge and Chamberlain^ that if a will of
goods in England be made in France and proved there, the ex-
ecutor shall not have action on this probate, but ought to prove
it in England.

It being then a<iuestion in which the law of the domicil has
no influence to defeat us, it is proper to urge the analogy be-
tween this case, and 1. cases of foreign contracts; 2. cases of
mere remedy in the courts of the country where property or
debtor is situated; and 3. cases of statutory transfers of
property.

( a) Free in Chan. 577-

OF PENNSYLVANIA. 339

1 . It is ti'ue that the lex loci almost invariably governs, where i gOS.
such is the intention of the parties. But it cannot be disputed, pj
that where a contract is made with reference to another coun- bats
try, the law of tlie country referred to shall govern, and not the "f'-

law of the place. Robinson v. Bland, (a) Thus \n,Sir yolin^^'}^^^^-^'^
Champant v. Lord Ranelagh (b^ a bond was made in England
and sent over to Ireland where the money was to be paid, but
the kind of interest was not mentioned; the Lord Keeper was of
opinion that it should carry Irish interest. 1 Eq. Ahr. 286.
Now there is nothing in a Contract strictly so called, that incor-
porates or rejects the lex loci more than any other disposition
of propertv, such as a gift or a will. " In -very dispo.sitiou or
" contract where the subject matter relates locally to England''''
says Lord Mansjield in Robinson and Bland^ " the law oiEng-
" landnx\\%\. govern, and must have been intended to govern;"
and he illustrates his position bv a contract concerning stocks^
which notoriously follow the law of the domicil in the case of.
intestacy, as well as by a mortgage and a conveyance of land.
The question always is, what was the intention of the party ?
By what law did he intend his contract or disposition to be
tested? That law and that alone shall govern. If personal pro-
pertv has no situs ^ it must be transferred by contract as well as by
will, agreeably to the domiciliary huv, or the opposite argu-
ment falls; for that argument is that moveables follow the per-
son, and are with him where he dies, therefore the will must
be such as is good in that place. But then it must be true of
contracts in the life of the party as well as of wills; for the fic-
tion does not depend upon the proprietor's deatli. Now it is
clearly untrue as it respects contracts; for i)\' reurring to the
laws of a foreign country they embody tliem, and are control-
led thereby both in form and substance. There are instances in
which an instrument or contract, invalid in the country where it
is executed, has been enforced in a foreign country to whose law
it conformed; as in the case of stamps; and even agreements
abroad, whicii after liaving been carried into c nVci h\ one of
the parties, would have been there the ground of a capital prose-
cution, have been enforced against the other party in England.
Borr V. Vandall ('), Smith v. Oxcndrn. (r/)

(rt) 2 nurr. 1079. {c) 1 Chn. C„. "0.

<.h) Fic. in Chan. V19, [,l) lb. 25.

4y CASES IN 11 IK SUPREME COURT

1808. -• 1'^ lliose cases where tlu; (|ULbtion is merely a question

""T^ ol reinech', the law of the countrv where the icmedy is asked

Desks- . „ , " , , ■ ,

B^ J s must umversally govern; the party must take his remedy upon

V. such terms as the courts of the country will give it to him,
Berquier. -pj^jg jg another principle in restraint of that comity on which
the defendant must rely. Thus if a debt be contracted in Eng-
land^ and sued in Scotland^ the English statute of limitations is
no bar; 2 Lord Kaimcs 354.; and in Nash v. Tuppcr^ (tf) where
a note was given in Connecticut^ whose limitation is seventeen
years, the statute of New Yorh^ which limits the bringing of
suit to six years after action accrued, was pleaded and the plea
sustained. So in Duple'/n v. Dc Roven. (b) These cases shew
that what might be considered as an ingredient in the foreign
contract, that is the statute of limitations, is entirely overlooked
the instant the parties enter the court of another country.

3. Statutory transfers of property have no effect out of the
country where they are made. A statute of Great Britain may
order a conveyance from a bankrupt of all his moveables, and
call it a voluntary conveyance, but it will not transfer his
rnoveables in Scotland. 2 Lord Kaimes 362. Now if comity to
foreign nations will in any case support a transfer which does
not conform to our law, it must be where that transfer is pecu-
liarly the act of the nation; but here the foreign country re-
fuses it; a fortiori will it refuse to defeat a transfer, simply be-
cause it is not agreeable to the law of the domicil, when the
property is in its own countrv, and the transfer consistent with
all its laws.

There are no cases which militate against the application of
these arguments. All that is found in the En^q-lish law, relates to
intestate succession. The opinion of foreign jurists is to be
received with great caution; they write with reference to or
under the bias of their own national institutes of law. Huberus
in particular, who has feigned a case for argument similar to
this, is spoken of with litde respect in 1 Collcc. Jurid. 116.; and
every lawyer knows the difference between an opinion formed
and defended in the closet, and the judgment of a court pro-
nounced after solemn argument and deliberation. The dutchess
of Kingston's will, which has been much spoken of, and the
circumstances of which are given in 1 Collect. Jurid. 323. does

''«) ] Nftvi Torh T. R. 402. {b) 2 Vern. 540.

OF PENNSYLVANIA. 341

not touch the present question. Her will was executed accord- 1808.
ing to the law of her domicil, which was in England^ ^"^^~Deses^
Target was of opinion it was good in France. Our argument ^^^.5
is, that although the law of the domicil may be called in to v.
support a will, it shall not be used to overthrow it. Bergiuier.

Duponceau for the defendant. Whatever may formerly have
been the objections to the rule which must govern this case, it is
now a rule of property as well established as any in our sys-
tem; and it is one and the same rule in the case of an intes-
tacy, and in the case of a last will. The maxim on which it is
founded has the assent of all nations, mobilia peraonam scqiiun-
titr, immobiHa situm; and therefore to every purpose connected
v/ith this question, the personal property of Jean Thcil must
be considered as accompanying his person at the time of his
death, and not to be disposed of by any will, that would not
have passed property actually situated in Jeremie. " It is a
" clear proposition," says Lord Loughborough in delivering the
opinion of the court in Sill v. Worswick^ " not only ol the law
'■'- of England^ but of every country in the world where law has
" the semblance of science, that personal property has no loca-
*■' lity. The meaning of that is, not diat personal property has
" no visible localit)-, but that it is subject to that law which
*•• governs the person of the owner. With respect to the dispo-
" sition of it, with respect to the transmission of it either by
" succession, or the act of the party ^ it follows the law of the
person. If he dies, it is not the law of the country in which
the property is, Ijut the law of the country in which he is, that
must regulate the succession." 1 H. Black. 690. These sen-
timents are confirmed b\- Lord Chancellor Thurloxve in Bruce
V. Bruce^ " Personal property follows the person of the owner,
'* and in case of his decease, must go according to the law of
" the country where he had his domicil; for the actual .situs
" of the goods has no influence." 2 Bo.f. and Pul. 231. It is
in this case that we find a commentary upon the principles of
Scotch law, cited from J^ord Kaimes; principles that are thirc
and in subsequent cases expressly overruled, and slated to have
been framed by following the lex loci rci .v?/rt', in ojiposition to
the rules of the civil law and the jus gentium., which give an
exclusive consideration to the law of the domicil. liut even
Lord Kaime.H can spc the sense of the rule which regulates

342 €ASl-:S IN THE SUPRLiME COUKT

1808. *^''^ succession to tx Scotc/ii)}aii\'{ moveables, both at home aud
Df.ses- '^^'"^^1 according- to the Scotc/i law; and the error of limiting
HATS this rule to a Srotcliman^ is now finall\- corrected in that country
V. b\- Bruce and Bruce.
Berqlieu. These principles alone would defeat the plaintift's claim; lor
most clearly the will in this case would have been good for
nothing, if the property had actually been in yeremic. But it is
said they apply to the case of an intestacy, and to cases in which
the law and not the party makes the regulation. The precise
question has perhaps never been litigated in Enghind; but the
opinions of learned men wliose writings are respected by all the
world, and are received as authority on this subject as a branch
of the law of nations, are conclusive of the point. In Holland a
last will and testament mav be made before a notarv and two
witnesses; in Friezeland it is of no effect unless established and
M'itnessed by seven witnesses. A Frizian makes his will in his
own country before a notary with two witnesses, and it is car-
ried into Ho llojid and demand made of the goods found there;
" it will not be granted," says Huberiis " because not made in
'•' a valid manner at first, being made contrary to the laws of
"the place." Hub. vol. 2. B. 1. Tit. 3. p. 26. 3 Dull. 372.
This is exactly our case. Vattel says, " The validity of a tcsta-
" ment, as to its form, can only be decided by the judge of the
'• domicil, whose sentence delivered in form ought to be every
" where acknowledged." B. 2. sec. 85.; and in Denizart's Col-
lection dc Dech'ions^ Tom. \v.p. 515., we have a confirmation
f)f the same principle in terms still more explicit. " Mais ce
" n'est pas assez que la volonte du testateur ait ete libre et
" saine, il faut encore qu'elle ait ete cxprimee avec les formes
'' qu'exige la loi du domicile dans lequel le testament a ete
" fait;" his will must be expressed in the form required by the
kvwofthc domicile in which the testament has been made. To the
same pilrposc is 2 Wolf. 201. The opinion of Monsieur Target
on the dutchess of KingstoJi's will, is on the same side. I'he
dutchess of Kingston was an Englishwoman^ who was autho-
rized by the king or France to acquire property in that king-
dom, and to dispose of it by gift, last will, or otherwise. She
never abdicated her country or her home, but she resided and
died in France. Her will was made in conformity with the law
o{ England; but had she been obliged to follow the form estab-
lished by the custom of Paris^ it would have been null. Mr.

OF pi:nnsylva><ia. 343

Target, who examines the question ^\■l^d\ great ability, gives it 1808.
as his decided opinion, that " as soon as she had fulfilled the d^^^^
"■ formaliiv prescribed by the law of her country, it must be bats
" concluded that the form of her will was regular." 1 Collect. ~^-
Jurid. 329. In fitct it being setded by the cases oi Bruce v. ^^^^'^'^^^•
Bruce, Omviantif v. Bingham, and Sornervills v. Lord Somer-
ville, (a) that the lex loci ret sitce is in personal property com-
pletely out of the question, and that the succession ab intesiato
must be according to the law of the intestate's domicil, Avhat
possible argument can there be for introducing a different rule
in the case of a last v»ill, and treating moveables in this single
instance as fixed to the country where they happen to be? The
notion would be productive of infinite mischief. One man in
a thousand may not know the law of last wills in a foreign
country, but all men know it, or may easily know it, in their
own. Where one will is maintained by the doctrine, many
must be overthrown; and in case of personal possessions in
several countries whose laws are different, the testator must
either die intestate of part of his property, or execute a will to
incorporate all their varying forms, which may be impossible.

AnaIog\- is at all times a dangerous argument in the law. In
the argument of the plaintiff it derives all its weight from a
misconception of the true question. This is not a case of foreign
contract or disposition where the subject matter relates lo-
cally to Pennsifhajiia; it is a question whether property situated
in contemplation of law in a foreign country, can be disposed ot
by a will which is void by the laws of that country. Neither is
it a question of remedy to which the cases cited apply; it is a
question of title in the i)laintlll' which stands or falls with the
instrument under which he claims; and the objection is not tiiat
the mode of enforcing his rights is or is not agreeable to the
foreign law, but that he has no right of any kind. Finally it is
not a question whether any law of a foreign country shall have
an cxlraterritorial force, although it is most evident that by a
comity whlcli is essential to the well being of the world, this
«fl'ect is frequently permitted; but it is a question whether per-
sonal property is not by the understanding of ever)- civilian
;md common lawyer in existence appurtenant to the person, the
person always connected with his (l'<mi(il, -md the law of the

344 CASES IN THE SUPREME COURT

1808. domlcil operating therefore upon the personal property by vir-
^ tue of its own intrinsic unquestionable authority.

BATS

7'. TiLGHMAN C. J. This case was very well argued. Every

BERquiEK.jj^jpg jj^jjj. ingenuity and industry could produce was brought
before the court. If the case had been entirely new, it would
have been extremely difficult to decide. But although no autho-
rity directly in point has been produced, yet some principles
have been established by adjudged cases, which bear strongly
on the question before us. It seems to have been formerly
taken for law in Scotland^ that the goods found there of a per-
son who died intestate in England^ should be distributed ac-
cording to the Scotch law. But since the cases of Bruce v.
Bruce^ Ommaney v. Bingham and Somerville v. Lord Somervillc^
it must be considered as settled that " the succession to th-e
" personal estate of an intestate is to be regulated according to
" the law of the country of which he was a domiciliated inhabi-
" tant at the time of his death." If this is the rule in case of
intestacy, why should not the same rule prevail with respect to
last -wills? It is only with the view to promote the general con-
venience and happiness of mankind, that any country allows the
laws of a foreign nation to operate in any instance on property
within its territory. It is supposed that every man is best ac-
quainted with the law of his own country, and that when he
dies intestate, it is his desire and expectation that his personal
property wherever situated, should be distributed according to
that law; and to gratify this reasonable desire, it is the prac-
tice of civilized nations to extend their courtesy towards each
other so far as to permit the law of the domicil of the intestate
to prevail. This the counsel for the plaintiff candidly admit.
But they contend that the establishment of the will of Jean
Theil will answer the purpose which should always be kept in
view, that is to say, it will carry the wishes of the foreigner into
effect. It is very true that in this instance it willj but we must
take care how we establish a principle, which at the same time
that it carries the will of one man into effect, may tend to de-
stroy the will of one hundred others. If we say that the will shall
itand good because it is agreeable to our law, although contra-
ly to the law of the testator's domicil, then we establish the
principle that with regard to last wills, the law of Pennsylvania^
and not the law of the domicil, shall prevail. It will follow that

OF PENNSYLVANIA. 345

the wills of foreigners, made according to the law of their own 1808.
country, are to have no effect on moveable propert}' found here, ia
unless they are agreeable to our law. This may produce very bats
mischievous consequences, not only to foreigners who have '^•
property here, but to our own citizens who juay have property *^^^^^'
abroad. For we must expect that other nations will pay no
greater regard to us, than we pay to them. We are a commer-
cial people, and should be forward in reciprocating those acts of
courtesy which the nations of Europe are in the habit of practis-
ing. Indeed we have always been sensible of the importance of
paying a high regard to the law of nations. It is considered as
incoqjorated with, and forming a part of, our common law. (1
Doll. 114. Respub. v. De Longchamp.') Where a debt due from
one Englishman to another has been discharged by a commis-
sion of bankrupt in England^ we recognise such discharge here.
England pays the same regard to the bankrupt laws of other
nations, as appears by the case of Potter £s?c. v. BrowUy 5 East.
124., where Lord C. J. Elkmboroiigh in delivering his opinion
says " it is every day's experience to recognise the laws of fo-
" reign nations as binding on personal property; as on the sale
*' of ships condemned as prize by the sentence of foreign courts,
" and the succession to personal property hij ivill or intestacy, of
" the subjects of foreign countries." Let us now examine what
is the conduct of France (for Thcil was a subject of France) in
cases of this kind, /"rawce recognises the bankrupt laws of other
countries. We find that the dutchess of Kingston's will, made
in France according to the law of England, was held good, for
the disposition of her moveable property in France. Collect,
yurid. 24-2. 2Gth Oct. irSG. And the case from 4 Denizart
Testament 5\S. asserts the principle that the will must be ac-
i ording to the law of the domicil. No cases were cited to shew-
that any respectable nation held different sentiments; and I
think it may be concluded from a full view of the suliject, that
to regulate the disposition of the moveaI)le propcrf)' of deceased
persons act orrling to the law of their domicil, whether they die
testate or intestate, is best calculated to promote the general
convenience of the world, and most agreeal)lc to those princi-
ples which liav«- been established by judicial decisions among
the most enlightened nations. I ant therefore of opinion that
the paper set up for the will n{ Jean Thcil is not a valid will,

inrl that judgment be entered for the defendant.
Vni . I. 2 X

;346 CASES IN THE SUPREME COURT

1808. Yeates J. It has been remarked by Lord Chancellor Lough'

'~l)zsKS^ ^°' °"^^'^ C^) that if the question whether the clomicil of the party
UATs deceased should decide upon the succession to his personal
^•- property, was quite new and open, the point appeared to him
'^^*^''^^^' susceptible of a great deal of argument. Numerous decisions in
the Court of Session in Scotland^ with one single exception, as-
serted the negativt of that proposition. The different authori-
ties on this head are collected in a note subjoined to Bruce v.
Bruce reported in 2 Boa. and Pul. 129. But the point is
now settled by cases {b) determined in the British House of
Peers.

The master of the rolls, Sir Richard Pepper Arden (c) in 1801
has deduced the three following rules, as the result of the dif-
ferent authorities on the subject. 1st, That the succession to the
personal estate of an intestate is to be regulated by the law of
the country in which he was a domiciled inhabitant at the time
of his death, without any regard whatever to the place either of
the birth or the death, or the situation of the property at that
time. 2dlv, That though a man may have two domicils for some
purposes, he can have only one for the purpose of succession;
and 3dly, that x\\c forum originis is to prevail until the party has
not only acquired another, but has manifested and carried into
execution an intention of abandoning his former domicil, and
taking another as his sole domicil.

The domicil by the civil hiAV is there described " ubi quis la-
" rem rerumque ac fortunarum suarum sjimmam con&tituit.^^
But Sir Richard censured this definition as too vague and
difficult of application; and thought Bijnkcrshoek was very wise
in not hazarding a definition of the term..

The counsel for the plaintiff in this case in the course of their
arguments have not denied the authority of these rules; but
they have contended that they appl)- only to cases of persons
dying intestate, where according to 2 Erskiue 697 the law of
the domicil is considered as the presumed will of the party,
.and declaratory of his intention; and that the same ought not
and cannot possibly control the solemn intention of the party

(«) 3 Vez.jr. 200.

(/O 3 Vez.jr. 200. 2 Bos. and Pul. 239. 1 //. Bl. 690. 5 Vcz-y. 786. 4 T. R.
1 2A. Hvhere ell the authotitiet in the civil lafj are cited.

OF PENNSYLVANIA. 347

declared by his last will to take effect after his death. I have j gOS.
no hesitation in asserting that the ingenious observations o^~~^eses^
those gentlemen struck me forcibly at the tin\e; and my ideas gy^Ts
of the justice and equity of the plaintiff's claim powerfully in- t.
creased the effect of those first impressions. But on a fuller ^^nquiEB.
research of the books and more mature deliberation, I felt my-
self constrained to abandon my private opinion of the supposed
honesty of the plaintiff's demand. This part of the lex gentium
is founded on the mutual courtesy of independent governments,
looking forward to the common advantages and good harmony
of civilized nations. The principle equally applies, whether the
individual makes a will or not in a foreign country. The goods
of individuals in their totality ought to be considered as the
goods of the nation in regard to other states. They in some
sort really belong to it, from the right it has over the goods of
its citizens; because they make a part of the sum total of its
riches and augment its power; and because a nation has an in-
terest in the protection it owes to its members. The foreign
jurists, Vattel (a), Huberus (^), Wolfe (c), Denizort (d)^ Tar-
get (<•), and Lord Kuimes {f)^ severally assert that the law of the
domicil shall govern as to the regulation of the moveable pro-
perty of a subject or citizen dying in a foreign country; and
that the validit}- of his testament as to its form can only be de-
cided by the judge of the domicil, whose sentence delivered in
form ought to be every where acknowledged. It has been said
that Sir fames Ufarriott has spoken lightly of the///a7t'(7io/;,9of
Hiihcr; but it is well known that Lord Mansfield has cited his
work with approbation; and Mr. Har grave {£) has declared
that his writings on the civil law are much esteemed. Accord-
ing to Lord Chancellor Thnrloxvc in Bruce v. Bruce (li) decided
in the British House of Lords in A/)r/l 1790, (i) personal pro- •

pertv follows the person of the owner, and in case of his de-
cease^ must go according to the law of the country where he had
his domicil; for tiie actual situs of the goods has no influence.

(rt) Vuail, 154. s.Hj. (SJ Pnnc. Equ. 3.56. ////. 3- c. 8. sec. .".

(i) Huhcriix, V(,i.2. Ub. 1. tit. 3. (^) Co. Litt. 80. b. Hargravc's notr.

id) Denizart, 4 Tit. Ttstanier.t. 515. (/) 2 Bos. b Put. 2.10, 231
(c) Collect Jurid. 242. (324 )

348 CASES IN THE SUPREiME COURT

1808. l-'Orcl Chief Justice Kentjon in 1791 has said (rt) generally

- speaking it must be admitted tiiat personal property must be

BATS govi rued by the laws of that country uhtrc the owner is domi-

V. ciled. Lord Chancellor Loiighhorongh in 1796 has declared (J))

Bebciujku. ^j^m j[jg ^Qy^, ^^^ i^^y jl^^f [)^^. ij^^y of the country where the domi-

cil is decides, wherever the personal property is situated. Ac-
cording to Sir Richard Pepper Arden in 1801, (r) there is not
a single dictum from which it can be supposed that the place ot
the death shall make any difference. It is evident therefore that
by the law of nations as well as by the British decisions the
general rule at least is clearly established to be in favour of the
defendant; and it was incumbent on the plaintiff to shew that
the making of a will under the circumstances of this case form-
ed an exception. This has not been done; and it cannot be said
with propriety that when the word succession is made use of
without a particular reference to an intestacy, that it necessarily
excludes the taking under a will. But we have more; we have
an authority in point. In (d) Sill v. Worswick determined in
1791, we find that Lord Chief Justice Loughborough expresses
himself in these strong terms: " It is a clear proposition not
" only of the law of England but of every country in the world,
"' where law has the semblance of science, that personal proper-
*^' ty has no localit}'; with respect to the disposition of it, with
" respect to the transmission of it, either by succession or by
" the act of the party ^ it follows the law of the person." Of the
signification of the words, act of the party ^ there can be no
doubt. The transmission of a man's property to others arises
from civil institutions, and is the subject matter of positive law.
My former feelings on the justice and equity of the plaintiff's
claim have been repressed by considerations of the imperious
necessity of our strict adherence to uniform established rules.
In Bempdc v. Johnson alreadv cited, Lord Loughborough de-
clared the case of Sir Charles Douglas came before the House
of Lords under circumstances that affected the feelings of every
one; for the consequences of the judgment which the House
of Lords found themselves obliged to give, were both harsh

(a) 4 T. R. V)2. (c) 5 Fez. jr. 788.

(i) 3 Fez. jr. 200. (ti) 1 //. £i. 690.

OF PENNSYLVANIA. 349

and cruel; and if the particular circumstances raising very just 1808.

sentiments in every mind, could prevail against the uniformity £)£gj,g_

of the rule it is so much the duty of courts of justice to estab- bats

lish, there could be no case in which the feelings would have v-
ed one further. BEuquiER.

On the whole matter I find myself constrained to deliver my
opinion, that judgment should be entered for the defendant.

Smith J. concurred.

Brackenridge J. Subsequent to the argument in this case
I examined the authorities cited, and the civilians generally on
the subject. An abstract of the investigation with my conclu-
sion has been mislaid, and cannot now be recurred to. But it
will suffice to say, at this time, that my conclusion was decisively
against the will, and in favour of the successor ab intestato. («)

Judgment for defendant.

(rt) The case of Desesbats v. Berquier, wliicli decides the effect of domicii
upon a will of moveables, and the follow in;j case of Guier and 0' Daniel, which
contains a very full exposition of the principles by which domicil is ascer-
tained, are the only cases in Pennsylvania in wliich these questions have
been solemnly discussed and settled. The reporter is therefore induced to
connect them in this manner.

The case arose in the Orphan's Court for the city and county of Philadel-
fjhia, between

■m SrEVHEN GuiER, claiminjc as the father of Thomas GiriER deceased in-
:m testate, and Francis O'Da.mei. and Wili.i.vm Younc;, ciaimin}^ on
beljalf of the brotiiers and sisters of the intestate.

THE sum of 1400 dollars was in dispute under tlic fojlowinp circum-
stances. Thomat Guier, the intestate, was the captain of a vessel, and was
murdered in the West Indies in 1801. Tiie mouty in controversy was part o^
the proceeds of certain coffee whicli can)e to J'/iiladelp/iia, and was sold on
liis account after his death. O' Daniel and Tuung claimed it lor liib brother
and sisters by the law of Delaviarc; the father claimed it for himself by the
law of Penmylvani a; and the question for the Court was, I)y whirli lau the
distribution should be directed.

The facta were these: Stephen Guier the father, and his family, including
the intestate at that time a minor, removed lioni the state of Qmnccticut to
JJelaiuare in March 17'J5; where they settled on a fai m belonging- to his son
Gideon, who was alreatly resident there. In the same year Tltouian sailed
from Wilmington in Delaviare, as a sailor in a vessel commanded by Gideon,-

150 CASES IN THE SUPREME COURT

1808.

Wednesday,
April bill

Lessee of Nei f against Nett.

It isnotnc- M^HIS was a motion by Rush and Hopkinson for the defen-

cessaiyto X dant, to remove this cause from the general to the special

entitle a .,.,,,.,,, , ,

party to a jury list, although it had been more than three years at issue.

special jury ''j^^j^^ ^^.1;^,^ qj^ ^j^^ ^cts of Assembly 2St. Laws 267. 691 ., which

that tlie at- •' . . . - • ■ i_ • r

torneyshould entitle parties to a special jury, and put no limit to the time 01 ap-
ccitify that piyinrr for it; and also on a case between Hall and Vanda^rift at

It IS not 111- I - o ' 11

tended for the last term, in which the court allowed the change to be made,

delay. 1 here jjf^gj. ^^^ cause had been several years on the general jury list.
IS no time . _ •' ° o j

limited with- It was essential they said in this case, because the controversy

party mu^t ^^^ interested a large community, and it was highly probable
apply for a from the mode of returning a general jury, the defendant might
special jury. )^r^y^ q^ jj^g pannel some of his decided opponents.

and constantly afterwards followed the sea. In a second voyage with Gideon
from IVihnington, he was cast away, and returned to Wilviingtoti. In the w inter
of 1796 he lived in Gideon's house in Wilmington, and there went to school to
learn navi^ration. In March 1797, he took a protection from the Collector of
Fhiladelphia and sailed from tliat port. From 1796 to 1798, durin,^ some i)art
of which period he wasof age, he always boarded when ashore with Gideon's
widow in Wilmington, where he kept his trunks, clothes, books, and papers;
and from 1798 to 1800 he boarded when ashore at an inn in the same town.
In 1800 he became a member of a Freemason's Lodge at Wilmington, and
contributed his proportion of the room-rent. In the summer of 1801 he went
to Connecticut on a \isit to his relations; but, except in 1797 when lie sailed
from Philadelphia, and once when he sailed from Neia-Tork, all his voyages
from 1795 to 1801 began at Wilmington, during which period he was succes-
.sively seaman, mate, and captain. All his owners resided at Wilmington. The
protection from the Collector at Philadelphia stated him to be twenty three
years of age; but several witnesses swore to his being under age when he
first went to Delavcare. The bank of Wilmington required two indorsers on
his notes, as they did on the notes of all non-residents; and he never owned
or rented a house, liad never been assessed or paid a tax, nor ever voted at
an election in the state of Delaware, though he once offered his vote and it
•was rejected. In 1801 he sailed and never returned. The sum in dispute had
never been in De.'arcare, the coffee from w iiich it proceeded having come
direct from the Wat Indies to Philadelphia.

C y. Ingersoll for tlie father, argued it upon three points. 1. That Thomas
Guier liad no domicil any where. 2. That wliere there is no dwnicil of prefer-
ence, custom and the law of Pennsylvania establish the lex loci rci sit,v as the
rule of succession to personal as well as to real property. 3. That the /ocfw
ret sitx being Pennsylvania, and no domicil of preference being shewn else-
where, by the law of Pennsylvania the father was entitled to the succession.

Hopkinson and Rodney for the Dela'Oiare claimants.

OF PENNSYLVANIA.

351

Wallace opposed the motion on this ground, that the agree- 1808.
ment of the attornies of this Court, which had been made a rule Lessee
of the court, demanded as a prerequisite to a special jury, that of
the attornev should certify it was not intended for delay. It was
true that no affidavit of defence was required by law in an action
of ejectment, but the certificate was an independent matter.
Here delay would be the consequence from the known state of
the special jury list, the defendant had been negligent in not
making an earlier application, and there was no certificate.

Neff
Neff.

Per Curiam. The certificate is not required by the act of
AssembU', and the rights of the parties are to be tested by that.
The law limits no time for an application of this kind, and as
the court thought proper to allow it in the case alluded to, it is
essential to uniformity of decision that the motion should be
granted.

On the 7th July 1806, the opinion of the Court was delivered by

Rush President. Tlie case is embarrassed with little or no dilTiculty, whe-
liier considered on lepjal principles or matters of fact. The qucslioii is, where
w as he domiciled at the time of his dealhr and by what law shall the personal
estate be distributed ?

It is necessary to state botli the law and the facts bi'iefly- The ]iosition is
too clear to be controverted, that personal estate must go accordinfj to the
laws of the country in which a man is domiciled at the time of his death.
There can be but one domicil for the purpose of distributing; personal es-
tate; and wlicn tliat is ascertained, all sucii property wherever dispersed,
will tfo in sticcession accordincj to the laws of the country in which the in-
testate was Uut domiciled. Debts, havinp no situs, follow the person of tlic
creditor; and the lex loci rei sit.v is with great propriety totally disrej^ardcd.

A viaii is prima fticie dumiciltd at the place vilicre he is resident at the time
(,f his death; and it is incumbent on tlio.se who deny it, to repel this presump-
tion of law, which may be done in several ways. It may be shewn that tlie in-
testate was there as a traveller, or on some particular business, or on a visit,
or for thesake of health; any of which circumstances will remove the presump
tion that he was domiciled at the /i/rtcf of liis de.ith. 1. Bos. and I'ul. 2:30.

On a question of domicil the mode of livin;^ is not material, whether on
rent, at lodpinps, or in the house of a friend. I'he apparent or avowed inlen
tion (t^ constant residence, not the manner of it, con.slitutes the domicil.

Minute circumstances in inf|uirii-s of this sort are taki-n into consideration
the immediate emi<lo\menl ol the ititestalc, his jjiiuial |)urMiils and habits
m life, his friends and connexions, are circumstances which, thrown into the
scale, may pive it a decisive preponderance.

There is no fixed period of time necessary to create a tloniicil. It may br
accpiired after the siiortcst residence under certain circumstances; and un
der others, the longest residence may be insuflicient for the purpose.

;52 CASES IN THE SUPREME COURT

1808.

God SHALL against Mar i am. /'"^ fesj

'H''ednesiiay,
April 6th.

The regiila. ^ I ''HIS was an action of trespass to recover damages from
bvrepiila" *^^ defendant for breaking and entering the plaintiff's

tors uiulcr close, and removing five pannels of fence. The defendant
tlieactof9th , , , ., , ,., -, » • i

March 1771,P*'^^ded not guilty, and libcriun tenementum. Upon the trial

from which before the Cliief Justice at Nisi Prius in yime 1806, the plain-
entered to tiff proved a regular title to a lot of twenty feet in breadth by

the next Qug hundred and ten feet in depth, on Third street in the
Common -.^ , r -i • t • i i i • i i i • i

Pleas, is con- Northern Liberties, which lot was stated in a deed bearing date

c/««jeasto the 15th November 1794, from Dr. John Redman to the person

the founda- ,.._.,. , , .

tionsand under whom the plaintiff claimed, to be " bounded northxvara

^ f h"^ -1 r"** " ^y ^ thirty five feet corner lot, granted or intended to be

erected con-" granted b}' the said John Redman to Adam Logan.'''' He also

formably shewed that his lot was dulv regulated on the 25th Juhj ir98,

thereto; but , " r t r

not so as to by the proper officers under the act of 9th J/arcA 1771, b}

thelmes of j^^m-kinc: the lines in front and in rear, and putting stakes at all

the lot 111)011 o '1

which tlicre the comers; that the owner of the Northern lot had knowledge
are no build-
ings.

of the regulation; that there had been no appeal from any order

Bynkcrshoeh, we are told, would not venture to define a domicil. Vattel
says, it is a fixed residence, with an intention of always staying there.
It may be defined, in our opinion, to be a residence at a particular place ac-
companied with positive or presumptive f^oqf of continuing it an unliiiiited time;
and is the conclusion of law on an extended view of facts and circumstances.
The determination in the case of Major Bntcc in the House of Lords does
not militate with any part of this definition. Bruce left Scotland when very
voun"-, and became completely domiciled in the East Indies, in word and in
deed, by a residence of sixteen or seventeen years. Towards the close of his
life, and after makinij a fortune, he expressed a resolution of spending the
remainder of his days in his native country, and accordinirly took measures
to send his property before him, wlicn he suddenly died. It was held that he
was clearly domiciled in the East Indies in the first instance, and that thejn-
tention to change coidd have no effect. Though declarations are good evi-
dence that a person has changed his domicil, no fixed views of that sort can
be suppo.sed equivalent to tlie actual abandonment of one domicil, and the ac-
(|\iisition of another.

The domicil of origin arises from birth and connexions. A minor during
pupil/age cannot acquire a domicil (f biso'wn. His domicil therefore fallovjs thai
of his father, and remains until he acquires another, lu/iir/t he cannot do until lie
hecomei a person sui juris.

With respect to the facts in the case before us, Thomas Giticr]cft Connec-
ticut in the year 1795, under age, in company with his father Stephen, who,
quitting his native country, migrated to Dclaitiart, and became a resident of
•hat state by acts of the most unequivocal nature. There cannot be the least

OF FEXXSYLVAXIA. 353

of the regulators; that the plaintiff had built a brick house con- 1808.
i'ormablv with the regulation, twentv feet in front and about /^„rr T7T

-' IjODSHALL

twenty five feet deep, and that he erected the fence in a line Avith v.

the side of his house. The trespass complained of, was the de- Mariam.
fendant's taking up this fence and setting it down in the plaintiff's
lot, about two feet six inches within the line of regulation.

The defendant shewed title to the before mentioned comer lot
of thirty five feet, under a deed from Redman to Logan of 15th
November 1794, in which it was said to be bounded *■'• yiorth-
" ward by Coates's street.'''' He then gave in evidence a regula-
tion of the cross streets in the Northern Liberties^ commenced
before the regulation of the plaintiff's lot, but not published
and confirmed until the 5th August 1799. This regulation had
no connexion with the regulation of lots, but was a distinct
thing, authorized by an act of 17th April 1795; and the sur-

iloiibt tliat tlie fullicr became domiciled ihere. His son Gideon was the liar-
binpfer of the family, and was acUially a resident in Delaivare in the jear
1792, when he was a maiiied man, a housekeeper, and the commander of
a vessel. Induced pn)b:djly l>y the establishment of his son in that part of the
world, the old man followed his fortunes, ami settlinj^ under his immediate
auspices, became a farmer; a mode of life in itself more indicative than any
other of views of permanent residence. The father being thus domiciled in
Delfn.'tire, his minor s'ln Thomas was domiciled there also, who while under
ag« never acquired cir could acijuire a doniicil sui juris. liit were a point of
doubtful decision whethor Thuvias was ever domiciled by any action of his
own, DeluM'arc would of course be his dcmiciliuin oiiginn, and the country
whose law would re{;ulate the socces.>-ion to his jiersonal estate.

Hut we do not rest his domicil in Dclaiuare on this groimd: he acquiretl
one of his own. From the time old Gttiir and family, with his son Tliomas,
arrived in Delmvare, they seem to have been connected with Gideon Guic-r,
and to have been both in some dejjree dependent upon him. He settled hik
father on a plantation, and Thninas became his apprentice in the seafarin)>;
business. Having serveil out his lime, he received wa^cs from his brother.
About the year 17'J7 Thoinas was shipwrecked, and returning by the way
of Nev) Tori, he proceeded not to Connecticut but to Wilviington. He studied
navigation after he was of age in the borough of Wihnington. His diligence
and good conduct recomnien<lcd him to notice. In a year or two he became
a mate, then a captain and part owner of a vessel, in which character hu
sailed in 1801, when he was murdered by the blacks in the island ol' St. Do-
mingo. During this whole peririd we hear nothing frcun him of the aniviui re-
verlendi. So far from it, that afttr paying a vUil to hi:* friends in Connecticut
in 1800 or 1801, he hastened back lo Wihnir.yjon as the place of bis em-
ployment, and the residence of his friends. N<jt a single witness of the great
number who have been examined in Connecticut and Delavxtrc, ever heard a
wonl escape his lips of his intention to return; or that IVUmington was only
the place of ids temporary residence. Thomas Cuier entered the world as an

Vol. I. 2 Y

354 CASES IN Tin: SUPREME COURT

1808. vcyurs \\ ho piirormcd the duty, put tlu: hne (/f Coates's street
CioDsiiAi.L "^ ^'^'^ place about two feet six inches soutliward of the accus-
V. tomed liiu-. In consequence of this the defendant could not
Maiuam. have his complement of ground without interfering with the
regulation of the plaintifl's lot; and he therefore moved the
fence. There was also some evidence that the regulators them-
selves had since questioned their own regulation of Godshuirs
lot, as being founded on a mistake of the street line; and that
there was more ground to llie soudiward of tlie plaintiff, than
Avas necessary to satisly all claims.

Upon these facts it was argued for the plaintiff, that the walls
of his house, and the lines of his lot^ w^ere conclusively fixed by
the regulation, and that the survey o{ Co ales'* s street not being

adventurer, and in a few years arquired a pood deal of property. It is there-
fore reasonable to believe be felt the full force of tbis irresistible cement to
locality and situation. Tiiis consideration founded (»n interest, furnisbes the
stron{(est proof that he had fixed on jrihnington as the place of his domicil. A
icniark of the unerrinjr observer of liuman natiu'e, that " where the treasure
" is the heart will be also," may be here applied with strict propriety.

Several witnesses say they believe he bad fixed his residence at Wilming-
ton; others say they believe he had not fixed it there. This appears to be
meie opinion. Not a word from Giiier himself has been given in evidence;
but his sikn'-e on thw subject is an argument to shew his views were jjerma-
nentlv fixed on that country, in which his affairs wore the most promising
aspect. When he proposed to settle his afiiiirs, he does not think of CoiDirc-
ficut, but of sending to Judge Booth at Neiv-Castle, to draw his m ill in favour
of that part of bis family who were resident there.

It is I think extremely doubtful whether voting and paying taxes are in
any case necessary to constitute a domicil, which being a question of general
law, cannf.'f depend on the municipal regulations of any state or nation. Vo-
ting is confined to a few countries, and taxes may not always be demanded.
Guier was a seafaring man; and one of tlic witnesses says that between the
14th ^unuury 1800 and the 15th October 1801, he sailed six or seven limes.
Is it any wonder a single man thus engaged in trade should escape taxation
It frequently happens that young men who never go abroad, are not disco-
vered to be objects of taxation till they have reached the age of five or six
and twenty. It Guier escaped taxation flirougli the neglect of the officers ol
governmenl, it is impossible to conceive how their neglect can have any
effect on the fpifstion of domifil. The almost constant absence of a sailor
from home, actually effaces fioni bis mind v(-ting at electif)ns; yet it appears
Guier was present at one election and offered his ticket, which, though )io1.
received, is a striking fact to sliew he considered himself in the light of a
citizen. The ticket not being received does not alter the nature of the trans-
action on the part of Guier; the evidence resulting from it, of intention to
settle and reside, is the same as if it had been actually receive^

OF PENNSYLVANIA. 355

tuuipleted until after the regulation, could make no impression 1808.
on the cause: but that at all events, that survey did not, ^nd'TZZZTTTTI

' •- ' \jiODSHAI.I.

was not intended to, ascertain wht-re the true line of CoatOi's -i>.
street was, but to fix a line for its future course. That there- Mariam.
fore, for any thing that appeared, the regulation was right. Fch-
the defendant it was said, that the regulation, so far as it re-
spected the unbuilt part of the lot, was not conclusive, and that
as the plaintiff's lot was bounded by a thirty five feet corner
lot, the whole question was, where the corner of Coatc.s''.<i street
was, which the survey conclusively shewed. The Chief Justice
charged the jury that there could be no doul)t that the walls of
the plaintiff's house were fixed irrevocably in 1798, by a regu-
lation from which there was no appeal, but he would reserve
the question xvhether the lines of the lot xvere also Jixed. That
the jury might then consider them as not fixed; and if so, he
thought the survey was strong evidence to shew where the line

As to his sailinp^ o>if voyiige fVom Phlladtlphiat at wliicli time it is proha-
hle 1)e ohlaine<l a rcitificate of his beincf a native o'^ Connecticut ^wA a citizen
of the United State;, they ajipear to he accidental circumstances, siiclj as may
be h)oke<l foi' in the life of a sailoi", a)ul no wise inconii)atil)le witli his resi-
dence in another place.

Employments of tlie most opposite character and description may have
the same cflect to prodnce a doniicil. A man ma\' be alike domiciled, whe-
ther he supports liimself by plouphiuc;' the fields of his faini, or the waters of
the ocean. It is not exclusively by any particular act that a domicil, gene-
rally speakinpr, is acrpiired; but hy :i train iif ccm/uct manifesting that the
countr\' in which he died was the place of his clioice, and to all appearaiu-i-,
of his intended residence. The snilor who spends whole years in conibatin^-
the winds and w aves, and the contented hnsbandman whose devious sU ps
seldom i)ass tlie limits of his f:irm, Jnay in their dillercnt walks of life, exhi-
bit ecpial evidence of being dcmiiciled in a country. Every circumstance in the
conduct of old Guicr and his son Thnnios, taking into view the unsettled
mode of life of the latter, anijrdsthe fiUlest proof that they we>e both domi-
ciled in Dc/mvnrc. If llie proof be stronger in either case, it is in the case
of T/i'/VKit, who, though employed in traversing the globe from clime
to clime, constantly returned to Wilminvion, the source and centre of his
business, the seat and abode of his friends and rnnnexions. His " heart
*' untravillcd" :ippears to have been imnioveabl} fi.\etl on the spot, to
which he was attached by tlie powerful tic of interest, and the strongest obli-
gations of social duty; and never for a moment to ha\c pointed a wisli
to any other coniitiy.

We arc of opinion 'Vhajnas Guicr was domiciled in the state of Ik-
laijare, during puf>illagc; anrl that he was also domiciled there after he
became tui juris; and do <lecrce that his personal ])roperly hr distriliuted
liTordin^ to tin- lu^ct «J ihe state of Dr.X-AWAHE.

356 CASES IN THE SUPREME COURT

1808. of Co(ites\s street was, and where the defendant's lot began.
GoDSHALL The jury however found a verdict for the plahuiif.

~'.
Mariam. a motion for a new trial was made by the defendant's coun-
sel, because the vertlict was against law and evidence; and
this motion and the point reserved were now argued by Binncif
for the plaintiff, and by Jli/nor and Hopkinson for the defen-
dants; but the argument was almost entirely confaied to the
conclusive nature of the regulation.

TiLGHMAN C. J. delivered the opinion of the court.

The only question now to be decided by the court is, whether
the regulation of the lines of a lot in the Northern Liberties of
the city of PhiLuielphia^ made by virtue of the act entitled
*' An act for appointing regulators in the southern parts of the
" Northern Liberties of the city of Philadelphia^ and for other
" purposes therein mentioned," («) is conclusive on the parties,
not only as to that part of the lot on which buildings are erected,
but throughout the whole extent of it.

The act, after reciting in the preamble, t'nat great incon-
venience had ensued for want of surveyors or regulators to
lay out the proper gutters, channels, and conduits for carrying
off the waters, " and to set out the lots and to regulate the ivalls
" to be built bcttvecn partij and partii^'' goes on to enact, " that
" the regulators shall upon application made to them have full
" power and authority to regulate and lay out the proper gut-
" ters, channels and conduits for the carrying off the waters
" within the limits of the said described piece of land, and to
" enter upon the lands of any person or persons in order to set
'■'■out the foundations^ and to regulate the walls to be built
" between party and party as to the breadth and thickness
" thereof, which foundations shall be equally laid on the lands
" of the persons between whom such party wall is to be made."
&c. &c.

The third section inflicts a penalty on persons who shall
begin to lay the foundation " of any party xvall^ or any wall
^'■fronting on any of the streets^^ before the same is viewed and
directed by the regulators.

The fourth section gives an appeal to the justices of the next
county Court of Common Pleas, in case either party, between
whom such foundation or party wall is to be viade, shall con-
Co) 9th March 1771, 1 St. La-Ks. 549.

OF PENNSYLVANIA. 357

ceive himself aggrieved by any order or direction of the regu- 1808.
lators; and the justices are forthwith to summon a jury and Godshali
proceed to determine the matter in dispute, according to the 1,.
course of the common law. The fifth section ascertains the fee Mauiam.
to be paid to the regulators for their trouble, " i/i setting out
" a?id regulating the lines of each lot.''''

These are the only parts of the law material in the present
question. It appears then that although tlie preamble speaks of
setting out the lots^ yet the enacting part of the law gives no
power to the regulators to enter on any man's land for any other
purpose than that of regulating the foundations znd party walls
of buildings; consequently they have no power to enter at all
for the bare purpose of ascertaining the lines of a lot, nor is
there any appeal given but in case of a building. There is great
reason why the decision of the regulators, unappealed from,
should be conclusive as to the building; because if it were not,
the walls which were l)uilt under the authority of officers,
whom the party was obliged to employ, might be afterwards
pulled down. This would be a grievance too ruinous to be sub-
mitted to, and cannot be intended to be the meaning of the law.
Indeed considerable inconvenience may result from question-
ing the boundaries in any part of the lot, after a house has been
built. And if it was in the power of the court to make or alter
the law, they would prevent that inconvenience by directing
tliat the lines fixed by the regulators should be conclusive. But
in a case where valuable property is to be affected, they are not
authorized to draw inferences from slight expressions, not war-
ranted by the principal parts of the law. No express power is
given to fix the lines of the lot, when there is no party wall.
Hut it is objected that a fee is given "/or setting out and regu -
*' lating the lines of each lot.'''' The answer is, that this cannot
enlarge the power given before, but must be construed b)
reference to that power; that is to say, the fee is given for set-
ting out and regulating the lines^ so far as is necessary for the
jjurpose of regulating the front and parti/ walls; and it is evi-
dent that part or the whole of t7uo lines at least, must be set out
and regulated in order to do this. This construction renders
the whole law consistent, without doing violence to any part of
it. I am therefore of opinion that the parties are not concluded
by the regulation made in that p:irt of the lot, which lies back
of the holise. There must of course be a new trial, because the

358 CASES IN THE SUPREME COURT

1 808. court suppose that the jury found their verdict under an opinion

(loDSHALi, ^^^^ *^^ ^^' °^ ^^^^ regulators was conclusive. Tiie weight of

T'. the evidence was against the reguhition. On the second trial,

iNlARiAM the parties knowing precisely on what pouit the cause will turn,

will come better pr.pared to contest the real merits, that is, the

true location of Coatcs\'i street ; for that will be the only matter

in dispute.

New Trial granted.

We.lr.esdav, JaCObYoHE aguhlSt WiLLIAM and JoHN BaRNET,^

"^i"''^^'^- administrators of Henry Barnet.

A. obtains "TPHIS was an appeal from the Circuit Court of Northamp &
jiiclffmcnt for J- totl COUnty.

against B. 'Jacob Tolie the appellant married a daughter of Henry Bar-

liis son-in- ;j^^^ and became indebted to his father-in-law in a considerable
then dies in- sum, for which he gave his bond with warrant of attorney,
testate seis- Judgment was entered against Tohe^ and executions issued
estate, and against his property both in the life time of Barnet and after
JeavipR' seve-j^is death, but without effect; the principal part of the judgment
amongwliom remained unsatisfied, and Tohe was insolvent. Nenri/ Barnet d\ed
isthewife ofjjjjgg^jj,.^, whereupon an inquest of partition was awarded by

B. The real , ^ , , ^ ' ,,• , . • i i r
estate is di- the Orphan s Court; and his real estate, not being susceptible ot

vided by in- ^ division into as many parts as there were claimants, was ap-
fe\ver parts praised by the inquest and ordered by the court to certain of

tlian tlifc ti^j. children and grandchildren upon the terms prescribed by
are children, . , r . . . . .

uhich are al-law, viz. upon their givmg good security, which in practice is a

lotted ac- bond and recognisance, to pay to the other children their equal
cordniplv, o ' i ^ i

wndeith'cdi-and proportionable part of the appraised value of the estate.

i-eciionof ]vf^ part of the i-eal estate was ordered to Tohe and his wife,
tlie law that ....

a bond shall who was Still living, but he was entitled in right of his wife to
be {,'iven hy ^^^ ftf^h part of the valuation.

those who '

take the land

to the other children, B.'s wife among- the number, for their resperlive purparts. B. is

insolvent, and his debt to A. unpaid. The Orplian's Court may order B.'s debt to be

deducted from the amoimt of the bond for his wife's part, and if necessary to ascertain

the amount, may direct an issue.

The bond directed to be piven for the purpart of the valuation of real estate is persona!
property, and attended by all its incidents.

The Courts of Pennsylvania have no authority to insist on a provision for the wife, when
the husband applies for her personal properly.

OF PENNSYLVANIA. 359

The appellees who were sons of Henry Barnet^ and to each of \ gos.
whom a part of the real estate was ordered, petitioned the Or- Tr
phan's Court that the money, which by virtue of the inquest x,,
and voluation accrued to 7'ohe in right of his wife, might be Barnet.
made payable to them as administrators in satisfaction of Toilers
debt; or that it might be secured in some other way for the
ben( fit oi Barnet's estate. The Orphan's Court decreed against
the petition; and the Circuit Court upon appeal reversed the
decree, and ordered the distributive share of Tohe in right of
his wife to be deducted from the sum due on the judgment, and
that giving him credit therefor should be deemed a full pay-
ment to him in right of his wife.

From this judgment I'ohe appealed to this court; and the
cause was now argued by Hopkinson for the appellant, and S'lt-
greaves for the appellees.

For the appellant, two principal exceptions were urged
against the judgment of the Circuit Court; 1. That the Orphan's
Court had no jurisdiction over the matter of the petition; and
2. That it was against equity to deduct the husband's debt
from his wife's share of her father's real estate. There were *

other exceptions incidentally noticed in the discussion.

1. The Orphan's Court has a limited jurisdiction, and is not
left to the exercise of any discretion in the distribution of an
intestate's estate. Nothing can be more explicit than the provi-
sions of the law upon this kind of partition; for the only parti-
cular in which any thing like a discretion is left to the Orphan's
Court, is in limiting the time, not to exceed twelve months,
within which the securities for the purpart of the valuation shall
be made payable. In what manner can it try tiie questions which
may arise out of this application? Suppose the debt is denied
or payment is averred ; where has it the power to summon a
jur)' or to direct an issue ? How can it hold plea of sct-ofli' The
creditors of Tohc are as much interested as the representatives
iA Barnet ;\\o\s are they to be brought in and concluded b\
the decree? It is no answer to say they arc not interested; for
that is the very question. But the matter was no longer before
the Orphan's Court at the time of this petition. The partition
and appraisement were made, and the order of the court com-
pleted, nothing remained but to give the bonds in the m.inner

360 CASES IN THE SUPREME COURT

1808. required by law; the court was then functus officio as it respect-
YQ„g ed ^f//v?f/'i' real estate. The petition therefore asks the court
11. for a review of its own judgment, which it cannot grant. Sup-

Bahnet. pose the real estate to have been divided into as many parts as
claimants, how would the petitioners have arrested the allot-
ment to Yohe^s wife? And can the circumstance of turning
land into money alter the rights of tlie parties? Personal pro-
perty is paid into court for distribution, and a control over it
may perhaps be exercisedj but realty and the bonds which are
given in lieu of realty are subject to no control but that which
is expressed in the law. Courts of general jurisdiction do some-
limes contrary to their regular practice expose a fund in their
possession to the claim of a creditor who cannot reach it by or-
dinary process, as in Horn v. Horn; {a) but they will not bring
a fund within their control for the purpose of doing this.

But what have the administrators of Barnet to do with the
real estate ? They respresent a debt due to the intestate, and
they pray that the real estate or its representative the bond may
not go out of their hands until the debt is paid. The real es-
tate never was in their hands; it is a distinct fund; and any cre-
ditor of Jacob Tohe may as well make the petition as they.
Their being heirs at the same time does not alter the case; for
as such they have no claim upon Tohe for any thing.

2. The purpart is the property of Yoke's wife; as land no
doubt it would go to her; and the bond is the same as the land.
The court must consider it as given in the wife's name; for in
strictness it should be so. If he dies before it is converted, it is
still hers; if he must applj- to the court for it, he must apply for
it as hers; and then two questions arise: first, will the court in-
terfere in this summary way to settle an account between Yoke
and the estate of Barnet^ where the rights of a third person in-
tervene? and secondly, will they allow the wife's property to be
taken out of their hands upon an appeal to their equitable juris-
diction, to pay the husband's debt ? To the first question the case
of Doe V. Darnton {b) is a direct answer in the negative. As to
the second, married women are peculiarly under the protection
of courts. If the husband cannot get at the wife's property but
through a Court of Equity, it will never give it to him but upon
a settlement; a fortiori will it not expose it to the payment of
his debts. It is a principle of equity, by which our courts are

' (a) Ambl. 79. (b) 3 East 149. •

OF PENNSYLVANIA. 361

governed as well as a Court of Chancery. The wife at all events ISOS.
has a chance, of which she should not be deprived. Yghe

For the appellees, it was contended that the Orphan's Court Baunet.
in its modes of process, of trial, and of enforcing its decrees, is
a Court of Equity, and by the act of 1713 has an express grant
of power, in the last respect, coextensive with that of "■any
" Court of Equity." 1 St. Laws 98. But the power in question is
Incident to all courts, who must have a right so to modify
their decrees and judgments as to prevent the perpetration of
fraud; it is peculiarly so to Courts that proceed upon equity
principles, as all the courts \n Pennst/Ivania do. The power to
tr\- facts either by affidavits, or by directing an issue, appertains
to the Orphan's Court as an instrument in the exercise of their
express authority. Facts may be disputed upon an application to
distribute mere personal assets. Persons may be called before
the court cither as parties or witnesses, and punished for their
default, or concluded by its decree. Every thing that relates to
the partition of real estate by an inquest under the act of 1794,
is completely within the power of the court. The equity of
ihe partition, the rights of the parties, the nature of the securi-
ty, and the limitation of the time of payment not to exceed
twelve months, are all matters for the discretion of the court;
the question then is, has it in this case exercised a legal discre-
tion.' The administrators here are likewise heirs, and therefore
they would be competent to litigate a dispute concerning mere
real estate; but real estate is out of the question; by the law it
has been converted into personal property. If the bond is given,
he will sue them in their individual capacity, and of course
they cannot set off the dei>t which belongs to them as adminis-
trators; the only point is, should the court arrest tlie bond, or
order it to be so drawn as to compel To/w to do justice? If the
money had been an advancement to 2~o/ic\s' wife, it must have
been brought into hotchpot, and his purpart Ijy so much dimi-
nished. Is lie to be favoured in equity because it was a loan?
If /?«r;ir/'.v estate had Ijcen altogether personal, the administra-
tors might have retained for the debt. Are they to Ije worse
off because part is real estate, and yet iVu'i' interest in that
estate has become personal ])roperty ? Me can come at his right
only by an order of the Orphan's Court, and then by all the

rules of cquitv thcv mav and ought to impose terms on him
Vol.. I. ' ■ ' 2 Z

302 CASES IN THE SUPREME COUKT

1808. ii'^ ^^l^'fJt is to the same estate upon which he makes liis claim;

T. a technical rule of law which clisiinp-uishes real from personal

T, estate is all that prevents us from doing ourselves justice; is
U.VRNET. this to be adhered to in aid of a fraud i" The Orphan's Court
itself has often dexfiated from the letter, to do justice; it has or-
dered the bond to be given to the heir of the assignee. If a
plaintiff cannot And effects of the defendant to satisfy his judg-
ment, a court of common law will order the sheriff to pay over
monev which he has levied in another case at defendant's suit.
Arnusteadx. Pliilpot. (a) There is no other way of getting at it,
which is our difficulty, for it cannot be taken in execution.
Turner v. Fendall. (^) So under the general jurisdiction of the
court, they will allow A to set off a judgment against B and C,
against a judgment by B alone. Mitchell \. Oldfield(c) The case
is not within the statute, but it is an equitable interposition to
prevent injustice. Gurish v. Doncroan. (li) So where an insol-
vent debtor has effects which cannot be reached, equity will ex-
pose them to the demand of a creditor after he has exhausted
his remedies at law. Edgdl v. Haywood (e), Balch v. Was-
lali (y), Smithicr v. Lervia {g). In these cases the funds were
not in possession of the court; on the contrary Edgell v. Hay-
ivood was the case of a legacy in the hands of an executor whom
the court ordered to pay the plaintiff's debt. But in our case
the funds were still under the control of the court, for until the
bonds are given tlie matter is undetermined.

Then as to the wife's interest. This bond is to no intent
or purpose real estate; if it were, it should be given to the
husband for life; and he, like all other tenants for life of money,
should give security. It is personal property; and there is no
instance known in our practice of a court's demanding a provi-
sion for the Avife as the condition upon which they will assist
the husband to her money. It is a rule in Chancery, but unfor-
tunately without precedent among us. The bond is the hus-
band's; it is given to him in right of his wife; he may assign it
in payment of his debts; he may sell it and squander the money;
the merest act will amount to a conversion; and if she dies be-

{ n) Douf^. 2i9. (e)5Ati.352.

(//) 1 Cr'anch. 13G. (/) 1 P. Wins. 445.

OF PENNSYLVANIA. 36C

lore him, he will take it whether it he in her name or his own, 1808.
as administrator. His title to all her personal estate is exclusive. Yohe
His right to admin ibtration depends upon and follows his right v.
of property. And it is then merely a possibility that the wife Barnet,
mav survive, that is to defeat the equity of the appellees; it is
still less, it is a possibility that the husband shall die living the
wife, before the bond is paid; for the heir may choose to pay it
any time after it is due. But finally there is no equity in the.
wife's claim. She has already received the benefit of her pur-
part in the loan to her husband. It has proceeded from the same
fund upon which she must make her claim; it has diminished it
to a greater amount than her claim; and it is against equity that
even for the wife herself the claim should be enforced.

TiLGHMAN C. J. This case comes before the court on an ap-
peal from the Circuit Court of Northampton county, who re-
versed the judgment of the Orphan's Court of the same count)-.

Jacob Tohe married one of the daughters of Henr.j Barnet
deceased; and his wife is living. He became indebted to the said
Henri/ Barnet by bond, which was put in suit, and judgment
obtained on it by the said Henry in his life. Part of this judg-
ment has been paid; but a considerable bulance remains due,
and Jacob Tohe is insolvent. After the death of the said Hcnrij
Barnet^ his land not being capable of a division among all his
children without injury, was ijy order of the Orphan's Court
assigned to particular children, who were to pay to the other
heirs the amount of their share of the valuation of the land iu
mone\-. The share of the wife o{ Jacob Tohe was one fifth part
of the valuation, which was to be secured by a bond to be given
to the said Jacob ToJie in right of his wife. The other heirs of
Hcnrij Barnet petitioned liie Orphan's Court for an order to
deduct the lialance due on the judgment against Jacob I'ohc^
from his wife's share of tlie real estate which was to be secured
by bond as aforesaid. The Orphan's Court adjudged that the
prayer of the petition could not be granted; and the Circuit
Court decided on an appeal that the petition should be granted.
Many exceptions were taken to the judgntent o( the Circuii
Court, but on the argument they were reduced to two.

1. That the Orplian's Court had no invi'dictinn to art on
the matter of the p( tition.

JC,4 CASKS IN THE SUPHb.iVIK COURT

1808. -• That it was unjust to deduct the husband's debt from the

x^',,' wife's share of her father's real estate.
I. 1. In supporting the first point it was urged, that the Or-

Barnet. phan's Court liad no authority but what they derived from the
act of Assembly directing them to make partition of the intes-
tate's estate; and that in case of a dispute they have no mode of
ascertaining the amount of a debt. But there are cases in which
the Orphan's Court must take upon themselves to decide facts
incidental to the partition of an estate. For instance, if a dispute
should arise concerning the amount of an advancement made
by the intestate in his life to one of his children, partition cannot
be completed till this amount be ascertained. If necessary, facts
mav be ascertained by a jury; so that there seems to be no dif-
ficultv in surmounting this part of the objection. If instead of
a debt due from 7~ohe to his father-in-law, he had received from
his father-in-law an advance of money in part of his wife's share
of the estate, there is no doubt but the Orphan's Court could
and must have deducted the amount of the advance. The case
of a debt, to be sure, is not quite the same; although in fact this
debt has drawn as much from the estate of Hoirij Barnct into
the hands of his son-in-law, as if it had been an actual advance.
But inasmuch as Tohe cannot come at his wife's share without
the aid of the Orphan's Court, I see no reason why that court
may not deduct what appears to be due from him to the other
heirs, in a case like the present, where if he once gets hold of
the money or the bond, there is reason to fear that payment
of his debt will never be obtained. I speak now, taking it for
granted that Tohe is entitled to receive the amountof his wife's
share, which is the second point for consideration.

2. The Ori)han's Court have ordered that a bond should be
given to Tohe in right of his wife for the amount of her share.
It is said, and not Avithout great plausibility, on the part of the
appellant, that this bond being given in lieu of land, ought to be
considered as the property of the wife; that if the bond was
passed immediately to her, and she should survive her husband,
it would be her absolute property, and that it is hard to deprive
her of this chance. There certainly may be hardships in cases
of the kind, which probably the legislature were not aware of,
when they directed the mode of partition. But we must take
the law as we find it written. There is no ground for saying

OF PENNSYLVANIA. 35-5

that the share, thus directed to be paid in money, remains for 1808.
anv intent or purpose, of the nature of real estate. It is convert- Yohe
cd completely into personal property. The bond would be alto- v.
gether in the power of the husband. He might release it, as- Baunet.
sign it, or dispose of it in any way he thought proper. It is to
be regretted that the courts in this state arc not vested with the
power exercised by the Court of Chancery in Engla7id^ of in-
sisting on some provision for the wife, Avhen the husband ap-
plies to them for the purpose of getting possession of her per-
sonal property. But we have no trace of any such exercise of
power by our courts. It must be taken for granted then, that
they possess no such power. That being the case, Jacob Tohe
appears to be substantially the owner of his wife's share. If
it was payable in cash he would have a right to demand it;
and being in fact no more than money to be secured by bond
payable in a time to be fixed by the Orphan's Court not ex.
ceeding twelve months from the partition, I am constrained
to consider it as his property.

I am therefore of opinion that the equity of this case de-
mands that the balance due on the judgment against Jacob
Yohe should be deducted from his wife's share, and that
the judgment of the Circuit Court be affirmed.

Brackenridge J. concurred.

Yeates J. and Smith J. gave no opinion, as the appeal was
from their decision.

Judgment affirmeti.

366 CASES IN THE SUPREME COURT

1808.

jrednftday, B E N N E R aiicl aiiothcr, administrators of O b e ii l a n jde k ,
^P"-'! 6ti.. . jifml

aP'(ll?lst r REY. 2waH

^ /'IS mj

A liabeas 'TPHIS action was originally brought in the Common Pleas

corpus for X of Daiifilun count}', and was removed at March term

of a cause '^797 to the Supreme Court, by a habeas corpus at the instance

from the of the defendant. It was there put at issue, and after December

Conininn r i • i i i r i

Pleas to the term 1 TQO, was transierred with the other causes irom the same

Supreme countv to the Circuit Court for Dauphin. It was tried in Daw-
be amended /'/i"i in October 1803, before Chief Justice Shippen and Judge
by the prx- Brackenridge, and a verdict was found for the plaintiff. A

cipe; and . , , . r • i i • i

mav, after motion was then made in arrest ot judgment, which was over-
verdict, be ruled by the court; and from this decision the defendant ap-
the Common pealed. The plaintiff also moved for leave to amend the habeas
Pleas for the cv^rpus and return; and to this motion an advisare was entered,
having- tlie with an agreement that it should be argued in bank. The ques-

return ^j^j^ however in both shapes was the same; the reasons in arrest

amended by .

that court, being that there were no parties and no cause beiore the court,

and the amendment having in view the cure of these defects.

The fact was that the defendant's attorney gave a regular yvrar-

cipe for the habeas corpus; but although the writ was allowed

by a judge of the Supreme Court, sealed and signed by the

nrothonotarv, and indorsed with the names of the parties, it

was entirely blank on the face of it in all but the printed parts.

The record of the Common Pleas, moreover, which came up

with the writ, was signed by the clerk and sealed with the seal

of the court, but the return to the writ M^as signed by only one

associate Judge. The reasons in arrest were therefore, 1st, that

the cause had never been removed from the Common Pleas,

there being no valid return to the writ; and 2d, that the process

did not shew any parties or cause of action to the Circuit Court.

The answer was that the defects might be amended.

Ilophins and Dallas argued for the plaintiffs.

1. As to the writ. The error which requires amendment is
A mere misprision of the clerk; and there is a regular priei ipe
by which it may be amended. There has been too a fair trial
and a verdict; and the justice of the case is with the amend- -
ment. Now no instance can be shewn in which an amendment

OF PENNSYLVANIA. 367

has been refused, where the defect was a clerical error, where 1808.
there has been something to amend by, and where the justice of b^^ner
the case has coincided with the motion. The King\. Ellames (a), v.
MossmaJi v. Higgvison (^), Course v. Stead (c). Black v. Wis- Fuey.
tar fd). Here it is the defendant's own writ; and that alone
should prevent his benefiting by its imperfection. I^ex v.
Hayes, (e) The court after verdict will if necessary even pre-
sume that a good writ once existed, but is lost, and that the
cause was not removed by this writ. More v. Hodges, (^f)

2. As to the return. The law does not point out any particu-
lar mode of authenticating a return to a habeas corpus. The
record of the Common Pleas is sent up under the seal of the
court, and it expressly states that the cause is removed by ha-
beas corpus. This is a sufficient return; at all events it is suffi-
cient to amend the return by. If we should go back to the Com-
mon Pleas, the docket would shew that the cause had been re-
moved; for we have a verification of the docket entries with the
writ; if we cannot amend the return, the cause then is not in
existence. But tlic proceedings of the parties in the Supreme
Court amounted to a removal of the suit by consent, and there-
fore both writ and return are immaterial. Suits were frequent-
ly removed without process prior to the act of 24th February
1806.

Jngersoll argued for the defendant.

1. As to the return. The writ is directed to the judges of the
court below; and no one but the court can make a return to it.
The only question then is, whether one judge constituted the
court; and there is no question, he did not; it would be idle to
read the law. But it is said the record shews the cause to have
been removed, and the return may be amended by it. The
docket entries are made by the clerk and not by the court. The
seal is evidence that the entries are tliere, but not that the
court put them there. The argument sul)stitutcs the clerk for
the court. If the record were sufiitient, then even the return by
one judge would be useless. Indeed the return by one judge

(aj Cat. Temp. Hard\K. Zl . (</) 4 Dall. 267.

(A) 4 Dall. 12. (0 2 Stra. 84.3. 8 Co. 59. b.

(. •^ 4 Dall. 22 ( /) (?;•<,. Car. 90

368 CASES IN THK SUPREME COURT

1808. furnishes a presumption that the other two were against him;
~Bexneu ^"^^ it the phiintifl's reasoning holds, the clerk may be against
x;. them all, and yet his return shall prevail. The cause in fact is
Frey. still in the Common Picas o{ Dauphin county; and our justifi-
cation in taking the exception is, that had the verdict been for
us, we could not have had the benefit of it.

2. As to the writ. The habeas corpus to remove a suit is an
original writ, and not within the statutes of amendment. Mas-
ters V. Ruck (rt), Christie v. Hvggins (J)). The cases cited do
not come up to this. This writ, from being blank on the face of
it, is in fact directed to no court at all; and then what authority-
had the Common Picas of Dauphin to make a return? Frank-
IhCs case is in point. An indictment was found before the
!^iartcr Sessions. The precipe for the removal of the indict-
ment was written by the counsel for the defendant; the writ
was worded according to the precipe, and issued at the instance
of the defendant; and it was directed to the Judges of the Com-
mon Pleas to remove an indictment pending before them. They
returned it; and although they were Judges of the Quarter
Sessions because they were Judges of the Common Pleas, the
defect was held to be incurable. Commonxvealth v. Franklin, (c)
A wrong direction cannot be worse than none; and there is no
difference from the decision being in a criminal case; for
amendments at common law are always allowed in criminal
cases, and no other can be made to a habeas corpus of this kind.
It is vain to talk of consent waiving process, when the process
was actually demanded by the defendant, though he is in no
manner accountable for its defects; for in the Ki7ig v. Haijes^
cited from Strange^ the very defect in question was made by
the defendant's own clerk in court, in making up the Nisi Pri^
Its record.

TiLGHMAN C. J. delivered the opinion of the court.

This action was brought in the Court of Common Pleas of
Dauphin county, and removed by the defendant by writ of ha-
beas corpus to the Supreme Court. It was there brought to
issue, and from thence transferred to the Circuit Court of

(a) Barnes \2. (c) 4, Dall.^55.

[h) Barnes l3.

OF PENNSYLVANIA. 369

Dauphin, where it was tried, and a verdict found for the phiin- 1808.
tiff. The defendant after all this, moves in arrest of iudo;ment, t,^^ , '„
because the suit was not legally removed to the Supreme Court. -u.
He alleges two reasons against the removal. Frey.

1st. That the habeas corpus was left blank in many substan-
tial places.

2d. That the return to the habeas corpus is signed but by one
of the associate Judges of the Court of Common Pleas.

1. As to the first point, the fact is that a regular pnecipe was
given by the attorney for the defendant, for issuing the habeas
corpus^ but by inadvertency of the clerk, the writ, although al-
lowed by a Judge of the Supreme Court and sealed with the
seal of the Supreme Court, was left blank in material places. If
there had been no praecipe, there would have been nothing to
amend by; but as amendments have frequently been made by
the praecipe, I think there can be no case more proper to allow
it than the present. I am therefore of opinion that this writ may
be amended bv the prsecipe.

2. The return by one associate judge is not good, because one
judge cannot hold a court. But I observe it is said in the re-
cord, which is certified by the prothonotary under the seal of
the court, that the suit was removed by habeas corpus. This af-
fords reason for supposing that the court did in fact order the
record to be returned in obedience to the habeas corpus; and it
may be that it is only owing to the error of the prothonotary, that
the record was sent up without a proper certificate. On the ar-
gument of this cause I feared there would be great difficulty in
getting at the justice of the casej but upon reflection I am of
opinion that the Circuit Court may send back the record to the
Common Pleas, with permission to the Judges of that court to
amend the return if they think proper. In the case of the King
against The Mayor and Burgesses oJGrampond^ 7 D.i^ ii. 699,
a motion was made for leave to amend the return to a writ of
mandamus after verdict. The Court of King's Bench refused
to give leave to amend, because they did not think it proper un-
der the |)articular circumstances of that case; but tluy had no
doubt of their power, not under the statutes of Jeofails^ l)Ut un-
der the general authority of the court. It was there said that
these amendments were reducible to no certain rule, but that
each particular case must be left to the sound discretion of the
rourt; and that the best principle seemed to be, that an amend-

Voi.. I. 3 A

370 CASKS IN THE SUPREME COURT

1808. n\ent should or should not be permitted to be made, as it would
Benner ^^'^^ ^^""^ ^° ^^^' ''^""thcrance of justice. There is so much liberality
V. and good sense in the opinion which I have cited, that i cheer-
luEv. fully subscribe to it. Let us apply the principle then to the case
before us. Will the amendment of the return ten<i to the fur-
therance of justice? No one can entertain a doubt but it will;
but whether the Court of Common Pleas will think proper to
make any amendment, must be left to their own judgment.
The\' know the truth of the case, and will no doubt govern
themselves bv tlic truth.

I am of opinion that the record should be sent back to them,
A\ ith leave to amend if they think proper.

"''''^76''u ' M'Kean for the use of Dixon's Administrators

r/^c//;r,?^ Shannon and others.

The party Ohajinon and Poalk^ in the course of their business as auc-
who first tioneers, became indebted to Dixon^ whose administrators

brings suit

upon an offi-on the 24th June 1805 brought suit on the official bond for

cial boml is ^^33 dollars 33 cents, returnable to September Term, in the
entitled to ' ^ '

priority ot name of the Governor for their use. On the 25th Jiine 1805,
pajment, a'-jjj^Qj.j^ej- g^ijt ^^33 brought on the same bond for the use of Abel

thoui{li lie IS

prevented Hijde; and on the same day another suit for the use of John
froni obtain- sherxvhu On the 2d Jnlu 1805, a fourth suit on this bond was

angjudg- J J '

nient by an brought for the use oi Roar''s administrators; and on the 26th
procce^dinKs -^^^'"''^^.V 1806, an amicable action on the bond was entered to
upon the de-September Term 1805, for the use of the Commonwealth. On
pTvtn^the *^^ 3d March 1806, a rule was granted upon the plaintiffs in
amount f.f all these suits to shew cause why proceedings should not be
court AlV 'staid, the defendants having paid into court the penalty of the
subsequent bond, and the costs of the first suit. On the 9th May 1 807, the
same term attorney general had leave to take out of court 658 dollars
arc entitled 84 cents, the amotmt due to the Commonwealth for duties;
iflnstead oi^^^ ^^^^ above rule was continued from term to term until the
suing they 31st March 1 808, when it was made absolute. On the same day
court to Ross for the pLiintifFs in the first action moved for leave to take
come in mi- o^t of court the balance, or so much Tis was necessary to satisfy
suit, priority t^**^^^ demand against .5'//a;z;2<?;z and Poalk; and it was upon this
of ajjphca- motion that the present case arose.

tion will enti-

tic them to priority of payment.

OF PENNSYLVANIA.

Oil

I^oss contended that by priority of suit he was entitled to the 1808.
payment of his entire demand, if the balance in court was suffi-'TTT"
cient; Meredith tor ^herxvin^ and MrKean [^Attorney general) y^
for i?(3ar, contended for a firo rata distribution among all the Shannon.
creditors who had brought suits to the same term.

For the plaintiffs. The law is explicitly stated by Chief
Justice M'-Kean in a note to Dallas v. Chaloner'*s executors^ (a)
that the person who first sues and obtains judgment on an
official bond, is entitled to take the whole penalty, if his de-
mand amounts to so much, in exclusion of every other claimant.
And the doctrine was recognised by the whole court in Dallas
V. Hazlehurst et at. (b) and carried still further; for in this
case they say, that upon principle and authority the creditor
Jirst suing is entitled to be first and completely paid before
other creditors are admitted. At all events, the priority that
Dixon would have gained by getting the first judgment, he is
entitled to in this particular case by commencing the first suit;
for it must be presumed that he would have obtained the first
judgment had not the court interfered by a rule to stay pro-
ceedings; and they certainly will not diminish his security by
the rule. We have a clear legal preference, as in a suit against
an executor, where among creditors of equal degree, the party
first suing is entitled to be first paid. 3 Bl. Comm. 19. 1 Roll.
Abr. 925. Cro. Eliz. 41. 1 IVentu'. 143. 2 JVcntw. 73. Shcp.
Touch. 457, 8.

For Sherwin and Roar. The note in 3 Dallas appears to
have been only a dictum of the Chief Justice. It was not
the point before the court; and it relates exclusively to the first
judfrmciit. In Dallas v. Hazlehurst., the court did not decide
that the creditor first suing should be first paid; the case did
not admit of such a decision. On the contrary, the record
shews that a suit was brought for the use of Maria Capper
against Footman\s sureties, which suit was afterwards sug-
gested to be also for the use of James King., and that a judg-
ment was obtained therein at March Term 1802. Capper and
King agreed together that the former should be first paid her

(<7) 3 Dull. 501. (A) 4 Dull. lOO.

372 tJASES IN THE SUPKKML COURT

1808. ^vhole ckniaml, and that the latter shouUl then copie in for his.

"ZTT- In March 1804 Price and Kclhind, two creditors who never

M'Kkan ... .

-,,. brought suit, petitioned the court for a pro rata distribution

Shannon, among ail the chiimants. But tlieir petition was refused; the
judgment was paid according to the agreement of Guppcr and
King; and therefore the only point decided by the court was
that suit and judgment give a priority before creditors who
never bring suit, which we do not deny. But here were four
suits instituted within a few days of each other to the same
term. As there was no defence, judgment must have been
signed in all of them upon the same day, if proceedings had not
been staid; and judgments on the same day are on the same
footing. En'icrick v. Garwood {a). The act of Assembly re-
quires only that the day of the month and year of signing a
judgment be set down, but not the hour of the day.

TiLGHMAN C. J. delivered the opinion of the court.

This action is brought for the penalty of an auctioneer's
bond, in order to recover a sum of money due from the auc-
tioneer, for cash received on sale of the plaintiff's goods at
auction.

After the plaintiff commenced his action, several other cre-
ditors commenced suits on the same bond, at different times,
but all returnable to the same term as the plaintiff's suit. The
defendants brought into court the amount of the penalty and
costs of suit, whereupon proceedings were staid before Judg-
ment. It was agreed that the debt due to the Commonwealth
for duties should be paid in the first place; and it is now sub-
mitted as a question for the Court's decision, whether the
several persons who have brought suits, should have preference
in payment according to their respective priority of suit, or
whether they should all come in equally, pro rata.

If it was in the power of the court to distribute the money
according to their discretion, it would be most agreeable to
their ideas of equity to let all the creditors in equally. But
they have no such power. The act of Assembly under which
the bond was taken, is silent as to the mode of proceeding on it.
2 .S"^ Laws 777. 27th March 1790. The case must therefore be
governed by the general principles of the law. If the plaintiff

(«) 4 Dall. 321

OF PENNSYLVANIA. 373

had been suffered to go on to judgment, I know of nothing 1808.
which could have hindered him from receiving full payment of M'Kean
his demand. This is expressly laid down by M'Kean Chief v.
Justice in the case of Dallas v. Chaloner's executors, 3 Dall. Shannon.
501. note, as the settled rule in suits on official bonds. But it is
said that in this case there is no judgment, and therefore it is
not within the rule. But why is there no judgment? Not by
any fault of the plaintiff, but solely because the court has or-
dered the proceedings to be staid, on the money being brought
into court. When the court make orders of this kind for the
protection of a defendant, they will take care that the plaintiff
receives no injurv. The plaintiff having brought the first suit,
it must be presumed that he would have obtained the first
judgment. Indeed it has not been shewn to my satisfaction, that
any other person could bring a second suit on this bond. I am
therefore clearly of opinion that the plaintiff is entitled to be
paid the whole of his demand in preference to the others.

But as there will be a surplus after satisfying the plaintiff, how
is that to be disposed of? We are not without a precedent to
assist us in this respect. In the case of Dallas v. Hazlehurst, 4
Dall. 106. note, a suit was brought on an auctioneer's bond for
the use of Mrs. Gapper, which was marked on the record,
before judgment, to be also for the use of yames King: The
order of the court was that Mrs. Gapper should be paid^r,s^,
and then King. Now although it turned out that there was
more than enough to pay both, yet the order gives an express
priority to Mrs. Gapper. After the judgment was entered, other
persons who were creditors, petitioned the court for leave to
take the money among them; and their petition was granted;
but there was no dispute about priority, for they settled that
matter among themselves. In the case now before the court, I
know of no rule so reasonable as to consider the action first
brought as being for the use not only of the plaintiff who
brought it, but also after him for the use of the several other
persons who brought suits. U instead of bringing suits they
had applied to the court for permission to enter on the record
that the first suit was for their use also, the court would I con-
ceive in granting that permission have governed themselves by
the prmciple adopted in Dallas v. I/azlr/iurst, viz. that j)riority
of application g.jve title t(j priority of payment. But in the pre-
sent case the actions being all brought to the same term, th(

374 CASES IN THE SUPREME COURT

1808. applications to the court must be considered as all made at the
7^:57^77 same time.

V. Upon the whole of this case I am of opinion that the plain-

Shaxkon. tiff is entitled in the first place to receive payment of his whole

demand, and the surplus is to be distributed equally pro rata

among the other persons Avho have brought suits to the same

term.

Brackenridgk J. concurred in opinion with the court that
Dixon was entitled to payment in the first instance; but he said
he had not fully made up his mind as to the distribution be-
tween the other creditors.

Saturday, H E C K E R agaznst J A R R E T T .

June 25.

The penalty ^ I ^HIS was an action of debt, to recover the penalty of 500/.

raUtinff'T imposed by the habeas corpus act upon any one who shall,

person who without the order and process of a court having jurisdiction of

once deliver- *^^ cause, knowingly recommit or imprison a person for the

ed for the same offence or supposed offence for which he has been once

same cause , ,. , , ,

on a habeas delivered on a habeas corpus.

corpus, is li. The declaration stated that the plaintifl' was arrested by vir-

rommit- ^ue of an execution issued by the Common VXc^soi Northamp-

ments for ^q;j county, and directed to the defendant who was the sheriff

crbninal of that county; that he was brought by /j«^£'a* corpus before

nffence, and one of the associate judges of the said court, and by the said

curred bv J^^^^g^ ^vas discharged from imprisonment; and that the defen-

takinj the Jant, knowing the same, arrested him and committed him a

second time Second time to prison, without any legal order of the Court of

in custody Common Pleas of the said county, or any process issuing out

upon civil , • ' r '• r • 1 I

process. of the same, other than the writ of execution aforesaid; by rea-
son whereof action accrued to the plaintiff to demand and have
of the defendant five hundred pounds, Sec. To this declaration
the defendant demurred, and the plaintiff joined in demurrer, (a)

S'ligr caves in support of the demurrer argued, 1. That the
Associate Judge had no authority to discharge the plaintiff

(a) This cause was argued and decided at a Circuit Court holden in North-
ampton by the Cliief Justice; but the importance otthe dfjcision, from which
there has been no appeal, is thought to be a sufficient justification for in-
serting it

OF PENNSYLVANIA. 375

from civil process, as the fifth section of the habeas corpus act 1808.
explicitly provides that nothing therein shall extend to dis- j^ecker
charge out of prison anv person charged with debt or other ac- v.
tion, or with process in anv civil cause. 2 St. Laws 241. That Jarrett.
therefore there was no legal discharge from this execution, and
the defendant was justifiable in committing the plaintift'. 2.
That the eleventh section, by which the penalty of five hundred
pounds is imposed, relates exclusively to commitments and re-
commitments for criminal or supposed criminal matter; that
the thirteenth section, which is the first that applies to per-
sons restrained of their liberty under other pretences, expressly
orders the habeas corpus to be awarded and granted under the
penalties before directed, but says nothing about penalties for
other infractions of the law; and that the following section then
applies to civil cases the same penalty imposed by the ninth sec-
tion in criminal cases for disobedience of the writ, going no fur-
ther; so that the partial repetitiort in these sections is conclu-
sive to shf;w that the penalties of the first twelve sections are
not extended generalUj to cases within the thirteenth, and that
there is no penalty for a recommitment after a discharge from
civil process. Restraints for supposed criminal matter are alone
deserving of the severe punishment imposed by the eleventh
section; as no dangerous attack upon the liberties of the citizen
is likely to assume any other form than that of criminal
accusation.

Exving for the plaintiff contended 1. That the Judge had a
right to discharge from civil execution; tliat the words ot the
act are sufficienlly comprehensive for this purpose; and that the
fifth section applies only to the case of a detainment at the same
time for both civil and criminal matter, and was intended to
prevent a discharge from the latter, from operating construc-
tively as a discharge from both. 2. That the thirteenth section
in the outset extends to civil cases all liie penalties of the j)re-
ceding sections, l)y extending the provisions of the act iov pro-
ceeding on the habeas corpus^ as well as for awarding and
granting it; and the repetition of certain ol tbe jjenalties, though
it may be intended to enforce more explicitly the previous pro-
visions, cannot, as there arc no negative words, take away
the evident effect of tiie affirmative clause. The reason for

376 CASES IN THE SUPREME COURT

1808. applying all the penalties, is as complete as that for applying

Jamuett. Tilghman C. J. The habeas corpus act contains distinct
provisions for the relief of persons imprisoned for criminal and
for civil matters. The first twelve sections relate to criminal
matters. The eighth section imposes a penalty of 300/. on any
judge or justice who shall refuse or neglect to arva r d ?iny writ
of habeas corpus required to be granted by the act. The ninth
section Imposes on officers, sherlfis, gaolers &c. to whom writs
of habeas corpus shall be directed, and who shall refuse or neg-
lect to jnaie retuni or to bring the bodv of the prisoner ac-
cording to the command of the writ, a forfeiture to the party
grieved of 100/. for the fust offence, and for the second 200/.
and also an incapacity on the officer to hold his office. The tenth
section imposes the like forfeiture and incapacity on officers
refusing to deliver, upon demand, a copy of the warrant of
commitment and detainer of any prisoner. The eleventh section
enacts that no person who shall be delivered on any habeas cor-
pus^ shall be again committed or imprisoned for the same of-
fence by any person whatever, other than by the legal order and
process of such court wherein he is bound by recognisance to
appear, or other court having jurisdiction of the cause; and that
any person, who shall knowingly recommit or imprison such
person for the same offence or supposed offence, shall forfeit to
the party grieved five hundred pounds.

It is very clear that this eleventh section relates solely to the
cases of persons confined for criminal or supposed criminal
matter; because it makes no menilon of any persons but those
who are committed for offences.

The thirteenth section extends " all the provisions before
■■' made for the awarding and granting writs of habeas corpus
" and proceeding thereon^ in case of commitment or detainer
" for any criminal or supposed criminal matter, to persons, not
-' being committed or detained for any criminal or supposed
'■' criminal matter, but confined or restrained of their liberty
■■' under any colour or pretence whatsoever;" and the same sec-
tion goes on to provide that upon a certain oath being taken,
" a habeas corpus shall be awarded and granted in the same
^ manner, tuid under the same penalties, to be recovered front!
"• the same persons as is herein before directed."

OF PENNSYLVANIA. ^""^

O/ 4

It is contended by the plaintiff, that under the general words 1808.
of the thirteenth section, all penalties of every kind imposed o^i Hecker
any persons in any cases whatever by any of the preceding sec- u.
tions, are extended to civil cases. The most general words in Jauret r.
the thirteenth section are those which mention " all provisions
" before made for the awarding and granting writs of habeas
*'• corpus^ and proceeding thereon^'' Had the provision respect-
ing civil matters stopt there, there might have been some
ground for the argument, that the intent of the law was to ex-
tend the same penalties which had been imposed in criminal mat-
ters, to all persons and all cases in civil matters. But it is evi-
dent that such was not the opinion of the legislature, because
in a subsequent part of the same section a habeas corpus is or-
dered to be axuarded and granted in the same manner and un-
der the same penalties, to be recovered from the same persons
as is before directed. Now if the first part of the section had
been sufficient to extend all penalties in all cases, the latter part
extending one of the penalties in a particular case, would have
been not only unnecessary but improper. But to make the mat-
ter still clearer, the fourteenth section goes on to provide particu-
lar penalties in other particular civil cases; that is to say, in cases
of writs oi habeas corpus not being returned, or the bodies of
prisoners not bein^ produced by the persons to whom the writs
are directed; but there is a total omission of any penalty for im-
prisoning a person a second time for the same cause for which
he had been before imprisoned and discharged.

If it is asked why a penalty should not be inflicted upon
a second imprisonment in a civil as well as in a criminal
case, it is suflicient to answer, that the case being omit-
ted, the penalty cannot be inflicted, even supposing that
such omission was Iiy accident, and without reason. Jiut there
may have been a very good reason why this penalty was de-
signedly omitted in civil cases. It is this; that the object of the
habeas corpus act was to protect the liberty of individual citi-
zens; and the danger of oppression is not so great in civil mat-
ters, as in case of crimes or supposed crimes. Ciovernments
oftenjmagnify real crimes, and sometimes impute offrnccs false-
ly to innocent persons, for tiie purpose of ojjjircssion. From this
quarter has generally arisen the danger to liberty; and this
might have induced the legislature of Pennsylvania to omit tin
penalty in civil cases. Be that as it mav, as they have omitted

Vol. I, n B '

J78 CASES IN THE SUPREME COURT

1808. '*i ^"^ ^^ '^ ^^ ^ ^^*^^' established rule of construction that penal-
~ 'tics are not to be imposed without express words, or necessary

HeCKEU r . ■ 1 • • • • 1 I '

■;., implication, I am of opinion that the ])laintifF is not entitled to
Jarbett. recover the penaltv of 500/, upon the case stated in his decla-
ration. Judgment must be entered for the defendant.

Judgment for defendant.

lb 378f
3srS46
3pwll6
JULY TERM. 1808. 3pw362

8w255
6w494

junAur)', Lessee of Syler and wife ap-amst Peter and „I'^;H

Jul\ llth. TREDERICK LcKHART. «i yj*|

J'7 8l|

A parol g-ift rTpHE ^yife oi Siller was the daughter of John Eckhart, de-

oflaiids by a I , . , r i u- -nu i

father to liis ceascd, and the defendants were his sons. 1 he latter were

son, accom- -^^ possession of different parts of a tract of land, which it was

pained with ' i r i i j- i •

possession, alleged belonged to the lather who died intestate; and this eject-

and follow edj^^j^j^j. ^^.^^g brouffht to recover the portion which descended to

bv the son s ^ . '

iTiakinff im- the daughter. There was no dispute that the land was formerly

provcmeiits q^.^^^^j by t^g father; but the defence set up was this, that the

on the land, - ' '

is vah.l, not- father made -Jl parol gift to the defendants of the land they re-

^*li'^'^^^^^'^j"^spectively occupied at the trial, being parts of a larger tract on
fr.auds and which he resided, and put them in possession nearly twenty years
perjuries. before his death; that they continued in their possession during
his life, made valuable improvements, and paid the taxes which
•were assessed in their respective names, and not in that of the
father. No deed passed to either of them; but one witness swore
that the father, a few years before his death, pointed out the divi-
sion line of the land which he said he hadgiveji to his sons Fre-
derick and Peter; and also that when Peter exchanged three or
four acres of his part with one Snyder who wanted a deed from
the father, the latter told him he must get it from Peter. Other
witnesses swore to the like declarations of the father, that he
had given the land to his sons ; but there was some contradic-
tion in the testimony taken together.

The cause was tried at a Circuit Court for Dauphin^ before
Ye ATEs J. who charged the jury that if they were satisfied that
yohn Eckhart had made an actual gift of the land to his sons,
they should find for the defendants; but if .they thought his in-

OF PENNSYLVANIA. 379

tention was to jvlve them possession nicivlv, reserving the title 1808.
to himself, thev should find for the plaintiff. The jury ioimd for Lessee
the plaintiff apjainst the inclination of his Honour's mind; and a of
motion was made for a new trial, which was overruled by con- ^yler
sent and without argument, that the question might come t>y£__„. j^^
appeal to this court.

It was accordingly now argued upon that appeal, by Duncan
for the plaintiff, and l)v Elder and Hopkins for the defendants;
and although several points were made to the court upon the
evidence reported hv Judge Yeates, as that Siiler^s wife had
been advanced in her father's life time, and therefore was not
entitled to a share of his estate, until the advancement was
brough into hotchpot^ and also that the whole was a question
of fact which the jurv had a right to determine, the material
point was, whether a parol gift of land, under the circumstances
of this case, passed the title.

For the defendants it was argued, that this court proceeding
upon equitv principles, would, like a Court of Chancery, carry
into effect anv parol agreement concerning lands, where it was
in part performed; for the statute of frauds should never be
so turned, construed, or used, as to protect or be a means of
fraud. That delivery of possession had always been held to
be a part performance, especially if money had been expended
in improvements. 1 Fonhl. 105. 168. 175. Sug'den\s- Lorv of Fen-
dors, fe?r. 65. 73. Will.',- v. Strndling; (a) Earl of Aijle.sford\'<
case, (h That there was no difference as to this point between
a parol gift upon the consideration of natural love and affection,
and a parol transfer for money; and that it would be a gross
fraud upon the defendants to defeat their title, after having been
more than twenty years in possession, converted the land from
a wilderness to a farm, paid the taxes, and exercised acts of
complc te own'-rship with the consent and direction of the fa-
ther. There v> as clear proof of a gift, and the verdict was there-
fore against law and evidence.

For the plaintiff it was contended, th:it by the Act of fraud.''
and perjuries of 2l5t March 1772, 1 St. Laws 640.^ an estate

(a) ,irrz.>r. 381. (■,<.> Q.9<rrt rft"!

1'
KCKHART

J80 CASES IN THE SUPREME GOURT

1808. 'jy invent and seisin only, or by parol, is nothing more than an
I gg^.jj estate at will; and that this Act should not be frittered away b}
of distinctions, as it had been a sulijcct of regret among the judges
Syler in England that the provisions of their statute had ever been in-
fringed or weakened by construction. Cooper v. Elst07i. (a)
That from this sentiment the modern cases had gone upon
much stricter grounds than formerly, refusing to consider the
payment of money as a part performance. That at all events,
cases of part performance by delivery of possession existed only
as between vendor and vendee, and in such of those cases mere-
ly wherein the vendee's possession was inconsistent with the ven-
dor's title, Wills v. Stradling before cited, and 1 Sugden 73. ; but
that delivery of possession by a parent to a child was not inconsis-
tent with the parent's title, particularly where the father and
family I'c sided on the same tract, and possession of part only was
delivered to the son. The question of gift or not was however
a question of fact, and so left to the jury whose province it Avas
to decide.

The opinion of the Court was delivered by

TiLGiiMAN C. J. This is an appeal from the Circuit Court
of Dauphin county, on a motion for a new trial, oveiTuled by
Judge Yeates who tried the cause, without argument and by
consent.

The defendants relied on a parol gift of lands by their de-
ceased father, in consequence of which they had made valuable
improvements, and had long possession in their fathei's life
time.

Although the court arc not disposed to extend the principles
on which parol agreements concerning lands have been confirm-
ed, farther than they have been already carried, yet they are
bound by what has been decided. It has been settled that where
a parol agreement is clearly proved, in consequence of which one
of the parties has taken possession and made valuable improve-
ments, such agreement shall be carried into effect. We see no
material difference between a sale and a gift; because it certain-
ly would be fraudulent conduct in a parent to make a gift which
he knew to be void, and thus entice his child into a great ex-
penditure of money and labour, of which he meant to reap the

{a) 7 D.^ E. 14»»

OF PENNSYLVANIA. 381

benefit himself. Whether such gift was made in the present in- 1808.
stance was submitted by the court to the jury.The jury thought j^^gg^^.
there was not a gift; but the Judge who tried the cause was dis- of
satisfied with the verdict, and thought that the evidence in Syleu
favour of the gift greatly preponderated. He was better able '^'•
to judge of this matter than we, who only take the evidence
from his notes; and therefore his opinion is entitled to great
weight. But independent of that, enough has appeared to satisfy
us that there is reasonable ground for a new trial. The Court
forbear to enter into remarks upon the evidence, as the cause
is to be tried again.

New trial awarded.

Drum as^a'mst Snyder and another, administrators

65-552 Oi SELIN.

2s f 73i Sunburv,

35 r 67

Monday,

In Error. jdy lith.

^ I ''HIS case came up from the Common Pleas of Ao;/////;?i-Tlic record
-*- I'crltpu/ couvtv by writ of error. The defendants in error" *;'"k,'5'
on the 23d jful/j 1803, obtained a judgment against Drum for justice otilie
17/. 10*. with costs, before a justice of the peace; and on the r^j^^^^^ns bc-
22d oi Aug^tist following filed a transcript of that judgment in^"'"'^ '>''"i»
the Common Pleas. They withdrew this transcript on the 30ih {'i"^ foi^ndu-
August 1804, and in November of the same year obtained at'onola

i__ ^ L f ^1. • ^' • ■ r • 1 scire facias,

judgment betore the same justice m a scire Jaaas upon the ^fj^,,. ^ ^p^,,.
original judgment. The proceedings were then removed by script has

«• • ^ I /- 111 1 1.-1 been filed in

certiorari to the Common Tlcas, where the judgment was,i,p commnn

affirmed. l'K-;ts vmikr

The error alleged was this, that the original judgment was April 19tb
removed from before the magistrate, and became a judgment ^"-'^
of the Common Pleas by filing the transcript in that Court;
•f course that there was nothing whereon to found the scire
facias.

By the art oi March 1st IT-I-.S, called the I'ive pound Law,
1 St. Jmu'.s 304. it is enacted that after juflgment given by a
justice of the peace, he sliall issue an execution directing th(
constable to levy the debt and costs of the defendant's .^-ocr/v ancf
chattels^ and for want of sufficient distress to take and imprison

382 CASES IN THE SUPREME COURT

1808. Jiis hodij ; but in case no assets can be found sufficient to pay
Drum ^^^'^ '^"*^ costs, it provides that the justice shall give a tran-
x<. script of his judgment to the plaintiff, who upon filing the same
Snydf.r. in the Common Pleas, may proceed to levy the debt and costs
on the lands and tenements of the defendant by fieri facias &c.
in like manner as by law is provided in other cases. Sec. 3.
This provision continued to govern upon the subject of tran-
scripts, after the jurisdiction of justices was extended by the act
of 5th April 1785, to ten pounds; but by the act of 19th April
1794, called the Twenty pound Law, 3 St. Laws 536. which
incorporates all the regulations of the law of 1745, and applies
them to the increased jurisdiction of the magistrate, it is
enacted that the justice before whom judgment is obtained,
shall upon request make out and deliver a transcript of such
judgment under his hand and seal; and upon such transcript
being filed in the prothonotary's office, it shall have the same
cff'cct as judgments obtained in the Courts of Common Pleas.
Sec. 3.

D. Smith and Hall for the plaintiff in error, argued that by
the filing of the transcript in the Common Pleas the jurisdiction
of that court attached, from which moment the authority of the
justice in the particular suit was at an end; that as the Twenty
pound Law gives to the transcript the sarne effect as a judgment
in the Common Pleas, it makes it to all intents a judgment of
that court to be enforced by its ordinary process of execution;
and that therefore no judgment could remain before the justice,
otherwise there would be two judgments against the defendant,
imder both of which he would be liable to execution.

Evans for the defendants in error replied, that the only design
of the transcript under the Twenty pound Law, was to create a
lien upon the defendant's lands. That the provision of the law
of 1745 was defective, inasmuch as it did not make the tran-
script a lien, nor permit it to be filed until execution had gone
against the defendant's goods, and they were found insufficient;
which evil the third section of the law of 1 794 merely remedied,
by autliorizing a transcript to be filed at any time after judg-
ment, and by making it a lien in the same manner as judgments
of the Common Pleas; but that the defendant's body still con-
tinued exempt from execution af^er the transcript was filed, if

OF PENNSYLVANIA. 333

he had goods, no part of ihe law of 1745 as to execution being I8O8.
repealed by the law of 1794-; whereas if the transcript became a ^
judgment of the Common Pleas, execution might have gone, ^
until a recent law, against body, lands, or goods, in the order the Snyder .
plaintiff should elect. The judgment remaining before the jus-
tice for the purpose of execution, it was of course a good
ground for the scire facias.

The opinion of the Court was delivered by

TiLGHMAN C. J. The case turns upon the act of 19th April
1794, commonly called the Twenty pound Act. By this act the
jurisdiction vested in the justices of the peace by the act of 1st
March 1 745 was extended to debts not exceedingtwenty pounds,
under the same regulations, restrictions, and exceptions, as are
contained in that act " in the same manner as if the said act had
"been recapitulated and reenacted," other than the limitation
to debts not exceeding five pounds. It becomes necessary there-
fore to refer to the provisions of the act of 1745. It gave a stay
of execution of three months to freeholders, and also to persons
not freeholders, provided they entered bail in the manner pre-
scribed by the act. It gave an appeal to the Court of Common
Pleas. The execution to be issued by the justice was to be le-
vied on the defendant's goods if he had any, before his bod)'
could be taken; and in case there were no goods to be found,
the plaintiff might file a transcript in the Court of Common
Pleas, from whence an execution might issue to levy the debt
on the defenthuu's lands. Hut by the third section of the act of
19th April 1794, the plaintiff might file a transcript of the judg-
ment in the Court of Common Pleas at any time; and such tran-
script when filed was to have " the same effect" as a judgment in
the Court of Common Pleas.

The plaintiff in error contends, that by the filing of the tran-
script the record was comjjietely removed from the justice, so
as to oust him of all liis jurisdiction; and that the juilgnient is
to be considered to all intents and purposes as a judgment of the
Common Pleas. It a|)pears to us that this was not the intent of
the law. The act of 1 74.^ had suHieiently j)rovided for the issuing
an execution from the Common Pleas to levy on lands; but it was
defective in not permitting the j)laintiff to obtain a lien on the
lands of the defendant I))' filing the transcript, until alter he had
proceeded against the goods; and there mightpcrhapsbeadoubt

384 CASES IN THE SUPREME COURT

1808. ^vhetiler it created a lien at all, or whether it ranked as a judg-
"TT nient of the Common Pleas when considered as a debt due from

1,. a deceased person whose assets were insufficient to pay his
Snyder, debts. To remove all difficulty in these respects, it was thought
proper to introduce the clause in the act of 1 794, which autho-
rizes the plaintifl' to file the transcript inmiediately^ and gives it
when filed the same effect as a judgment in the Common Pleas.
But it was not meant to take away from the defendant the pro-
tection against imprisonment while he had goods, which is
given him by the act of 1 745 ; and which would be the case if it is
to be considered simply as a judgment of the Common Pleas.
This would be construing the law so as to defeat one part of
it by another, which is never to be done if it can be avoided.
The record for some purposes remains before the justice after
the transcript filed in the Common Pleas. An appeal may be
made, or the record removed by ccrtiorariy in both which cases
it is supposed to remain before the justice; so proceedings
may be had against the special bail. There is no inconsist-
ency in supposing the record to remain before the justice, while
at the same time a transcript exists in the Common Pleas, hav-
ing the effect of a judgment there, on which execution may be
issued in case the debt is not levied by an execution from the
iustice. This mode of construction makes a consistent system,
and is injurious to neither party. The Court is therefore of opi-
nion that there was no irregularity in the proceedings before the
justice, and that the judgment of the Court of Common Pleas
be affirmed.

Judgment affirmed^

OF PENNSYLVANIA. 385

1808.

Sunbury,

Lessee of Buchanan a^avist M'Clure and Smith. Saturdav,

^ July 16tli.

^ I "'HIS cause was tried before Brackenridge J. at a Circuit An impiove-

-*• Court for Northumberland^ in May 1804. It was an tj*^^^" settlement
ment for land lying within the purchase from the Indians of"" 'andspur-
November 1768. The lessor of the plaintiff claimed under an |i,(.j„ji^„g
improvement and settlement made between the date of that '" November
purchase, and the opening of the land office on the third of ^j&ri/bttxv'eenthat
1769. He also shewed an application for the land, entered the<^^'^.»"'l ^!*^
dav on which the land office was opened, and drawn in the lot- the land
terv devised at that time to fix the priority of the respective ":;^*^'^ °!' the
applications. The defendants claimed under an application de- 1759, <rive

scriptive of the land, entered on the same day with the plaintiff's,"" pretcr-

, ," . , ence to the

but of ?L prior numl)er according to the decision of the lottery. s< ttler

The reason of resorting to a lottery, as well as the effect of it, ^rT^'ost a

• . „ 'descnptive

appeared by a Statement drawn up by the proprietary officers iqiplication

at the openincc of the land office. It recited that the 3d of April ''l^^"]'^^^, *"
1769 being appointed for opennig the land office for the new (ire on tho
purchase made at the treaty of Fort Stanwix^ and it being '^f^^ '^ .
known that great numl)ers of people would attend ready to give
in their locations at the same instant, it was the opinion of the
governor and the proprietar\- agents, that the most unexcep-
tionable methf)d of receiving the locations, would be to put them
all together, after being received from the people, into a box or
trunk, and after mixing them well together to draw them out,
and number them in the order they shoidd be drawn, in order
to determine the preference of the applicants. Those who had
settled plantations, especially those who had settled by permis-
sion of the commanding officers to the westward, were declared
to have a preference. Hut tiiose persons who had settled or
made zohaf thrif vallrd improvements^ since the f)urcliasi\ it wa'i
declared should not thereby acquire any advantage.

Upon this case his Honour charged the jury, that an improve-
ment and settlement made l)etween the time of the purchase in
1768 and the opening of the office on the 3d of April 1769
within that purchase, gave a preference to the setlkr, even
against an application i)roperly describing the land; and that

No. 2, accompanicfl with such a settlement, was entitled to a
Vol. I. T ('

J86 CASES IN THE SUPRExME COURT

1808. prctercncc over No. 1. The jury accordingly found for the

I plaintiir. A motion for u new trial was then made and overruled,

Lessee ' , _ '

ot' and the defendants appealed to this court.
Buchanan Upon the argument here, several questions were raised whicK
'''■ had no connection with the principal point, the misdirection of
' the Judge in his charge. Upon this point —

Watts for the defendant argued, that the proprietaries, who
were the exclusive owners of the soil, had a right to grant it up-
on any terms they chose; and that by the preamble to the lotte-
ry they explicitly refused a preference to a settlement like the
plaintifl's. That therefore the settlement was out of the ques-
tion, and the case stood upon the two interfering applications,
t>f which the defendant's was first drawn. With respect to lands
previously purchased of the Ijic/iani\, the uniform practice of the
proprietaries in giving a preference to settlers, had, it was true,
at last made the law in regard to those lands; but with I'eference
10 this purchase there was no usage established before the
opening of the land office; and the circumstance of the office
remaining shut as to these lands five months after the purchase,
was of itself an evidence that no title to them could originate in
that interval. If an improvement after the purchase could have
been the foundation of a title, the proprietaries could not have
performed the promise made by the lottery, the scheme of
which went expressl)' upon the ground that no preference at-
tached to such improvement. The preference was limited to a
meritorious class of people Avho had settled under special licen-
ces before the purchase, or having gone on without licence had
left their settlement in consequence of the act of 3d February
1768, 1 St. Larvs 489., and the proclamation of the governor
founded upon it. On these principles the board of property de-
cided in favour of the defendant, in March 1770; and in Novem-
ber 1 789 there was a verdict and judgment before Atlee and Irtish
Justices of the Supreme Court, in conformity to that decision.

Evans for the plaintiff contended, that as he had settled on the
land after the purchase was made, he was entitled to a preference,
whether the proprietaries were willing to give it or not. The
acts of Assembly countenanced the settlement by prohibiting it
only on unpurchased lands; and the instant the purchase was
made, the right of settlement attached in the citizen under the

OF PENNSYLVANIA. ^8'.

influenceof a practice, which at last had become the law of the land 1808.

as to all the vacant lands in the Commonwealth. Settlement was Lessee
not confined to a particular district; it was a mode of obtaining of
title, as operative as a warrant, and as extensive as the unap- "^'^"^^'^^
propriated land in the state. It did not depend upon the land \itr;LuRE
office being open. To cut off the right to settle these lands dur-
ing the interval in question, was in fact to say that it could not
exist after the land office opened, until it was expressly sanc-
tioned by the proprietaries; for the usage could not applv with
more force to these lands after the office opened, than it did
before. The proprietaries however did not intend to deprive
the plaintiff of a preference. Such an intention is not to be pre-
sumed, as it would have been unjust, and the preamble does not
in fact discover it. The real object was to deprive individuals
of any advantage from a mere colourable improvement; " such
'' persons as had made 7vhat they callimpro'-oements^ should riot
"•'acquire anv advantage;" but there is nothing to exclude the
preference legally due to those, who like the plaintiff, made a
bonajide settlement with much labour, and in the exti-emity of
winter.

TiLGHMAN C. J. This cause was tried at a Circuit Courf
at Sunbury in May 1804, when a verdict was given for the
plaintiff. A motion for a new trial was made and overruled,
upon which the defendants entered an appeal to this Court.
The principal reason relied on in support of the appeal, is a
supposed misdirection in point of law by Judge Brach-f iridic,
who directed the jury that an improvement and settlement
made between the time of the purchase by the late proprieta-
ries of Pctin.syhania of the Indians in the month of November
1768, and the opening of the land office on the 3d Af)rU 1769,
for the sale of the lands included in that purchase, gave a pre-
ference to the settler against an application properly ilescribing
the land in question, entered in the land office 3d April 1769.

The counsel on i)oth sides made a written recpurst that r/Z/the
Judges of this Court would sit on the argument here, and this
request has been complied with to prevent a failure of justice.
Without such request we should have found ourselves under
great difficulty. Judges Tratcs and Sinilli are so nearly related
to Mr. Charh'H Smith who is concerned in interest, that if it
could have been avoided ihcv would have declined sittinj::.

538 CASES IN THE SUPREME COURT

1808. Jii*Jc;<-' Brackenrulirc diTivered the opinion IVom -which an ap-

— : pc;il was made, and I was concerned in the trial as counsel for

Ecssec ', , ^ ,
of the defendants.

Brc M AKAN To form a correct decision in this cause, it will be necessary to

^'- advert to the terms on which the land office was opened 3d April

'M'Clure • •

1 769. At that time the population ot Pennaiflvnnia was very con-
siderable; and it was foreseen by the proprietary officers, that the
applications for land at the same instant would be numerous,
and that probably there would in many instances be more than
one application for the same tract. In order therefore to put all
persons on an equal footing, (after satisfying the claims of the
officers who had served in the army raised by the province of
Pennsylvania some years before, and a few special grants to
persons who were entitled to particular favour,) they determin-
ed to decide the preference of all applications by a lottery, and
to ask no part of the purchase money till twelve months from
the date of the application. At the same time it was expressly
declared that " those who had settled plantations, especially
" those who had settled by permission of thecommandingofficers
" to the westward, should have a preference. But those persons
" who had settled or made what they call improvements since
'' the purchase^ should not thereby acquire any advantage.^''
Notice was given by public advertisement 3d February 1769
of the terms on which the office would be opened, and the "pen-
ing was delayed till 3d April 1 769 for the express purpose of
giving the back inhabitants sufficient time to bring in their
applications.

The counsel for the appellee have made two points. 1. That
the settler was entitled to a preference by the law of the land, of
which the proprietaries could not deprive him. 2. That he was
entitled to a preference by a fair construction of the terms on
which the office was opened 3d April 1769.

Title by settlement has always been favoured, and under pro-
per restrictions it deserves favour; but it must not be sup])orted
to the destruction of all other rights. It cannot be denied, that
the late proprietaries, who were absolute owners of the soil,
had a right to make sales, and to grant rights, on what terms
thcv pleased. If they had thought proper to grant no kind of
right, but upon payment of the purchase money, neither the le-
gislature, nor the courts of justice could have controlled them.
But as they had been. in the habit of encotiraging poor setders

OF PENNSYLVANIA. 389

who were unable in the beginning to pay any money, this prac- 1808.
tice at length grew into a right, and what had originated in be- 7 ~
nevolence became the law of the land. I speak now of the lands of
sold bv the proprietaries prior to the year 1769. The List pur- Buchanak
chase made bv them of the Indians was at Fort Stanzvtx 4th ^'
November 1768. In opening their office for the sale of these
lands, they determined, as has been already mentioned, to give
no preference to persons who settled between the 4th No-
vember 1768 and the 3d A/jril 1769. To have given such pre-
ference would in a great measure have defeated the equitable
intention of putting all persons on an equal footing. Nor could
there be any just cause of complaint against the regulation
adopted by the land office. Only a few months intervening be-
tween the purchasL' and the notice of the opening of the office,
and those months including the winter when improvements
cannot be carried on to great extent, it was improbable that any
one could have been induced to go to considerable expense, un-
der an idea that he would obtain a preference by settlement.
But there was a class of settlers of another description, whose
case was entitled to a different consideration. This leads me to
the second pnim, the true construction of the terms proposed b)-
the land office. Although it had alwa\ s been the policy of the
proprietaries and the legislature to discourage settlement on
lands not purchased of the Indians^ because it gave offence to
the Indians and might produce war, yet when the seat of war
between Great Britain and the colonies, and France and the In-
dians allied to her, was transferred to the Ohio and the country
between Pittsburgh and the great lakes, it became extremely
convenient and almost necessary that there should be a chain of
inhabitants on the military roads h ading from the settled coun-
try to the western waters. For this purpose the commanding
officers of British forces had been in the habit of granting li-
cences to settle, and in many instances persons seated them-
selves without licence, but under an implied permission. These
people were exposed to gnat danger, and manv of them were
cut off by the savages in their frequent incursions. Tiiis kind
of settlement had taken place chiefly, but not altogether, in the
western parts of the state. It is to be remarked too that many
of those who had settled without licence, were entitled to fa-
vour, because they had relinquished their settlements in conse-
quence of an act of Assembly passed in the spring of the year
1 768, and a proclamation issued by the governor in pursuance

590 CASKS IN TllK SUPREME COURT

180R. of it. It was thought reasonalilc therefore, that a prctercncc
Lessee sho'-'ltl be given, on the opening of the land office, to " those
uf " who had settled plantations, especiallv those who had settled
Buchanan" l^y permission of the coninianding officers to the westward."
M'Clure H^^^^^^'-'P''op''*^t^'"y^'"'^lt;rstopt here, there might havebeen some
ground for arguing that the words of the order included all set-
tiers prior to the opening of the office, however different their
cases or merits might be. But, to take away all doubt, the order
proceeds to exclude certain se^^/tr* by negative expressions, viz.
" those who had settled, or made what they call improvements
" since the purchase." It is contended that these negative
words are to be restricted to those persons who only made tri-
fling improvements, without having settled plantations. But
neither the expression, nor the reason of the thing, justifies this
restriction; the words " those who had settled" include all
kinds of settlement; and the rcnson of the order, as before
explained, certainly demanded that no preference should be
given to any kind of settlement made after the purchase.

I ha\e hitherto considered this matter as if it were a new
point. But that is far from being the cuse. It has been under-
stood ever since the opening of the land office in 1 769, that those
persons who settled between 4th November 1708 and 3d Aprrl
1769 were entitled to no preference. The board of propertv de-
termined so in the case of the very land now in dispute, on the
26th March 1 770, in a cause between John Buchanan and the
late Dr. William Smithy under whom the defendants claim. The
same principle was laid down by Chief Justice Chexv before the
revolution, as I am informed bv my brother Yeatcn in the case of
Kldcrs Lessee v. Campbell, and by Chief Justice M''Kean and
other Judges of the Supreme Court since the revolution, in the
cases of Thompsoii's Lessee v. Beeler and Sheerer^s Lessee \'.
M'-Cliire; and it is admitted that this has been the uniform opi-
nion and course of decision at Nisi Prius. Now although the
point has never been brought before this court in bank, yet
when a principle affecting titles to land has been supported for
near forty years by repeated decisions at Nisi Prius^ from
which no appeal has been made, it appears to be so incorporated
with the law as to render it dangerous to touch it.

I am of opinion on the whole that the judgment of the Cir-
cuit Court should ^e reversed, and a new trial ordered.

Yeates J. and Smith J. concurred.

OF PENNSYLVAMA. 391

Brackenridge J. I take this to be the first time that the 1808»
point has come before the court in bank. It had come more than "Xessee
once to my knowledge, before Judges of the Supreme Court at of
Nisi Prius. I always took it to be simply the question, whether ^'-''^'I'^^'An
■■X prior settlement could be aifected by a posterior office rie/it; ,» /-- '
tor the only distmction that could be taken in the case was,
that the usage under which settlement was protected, did not
extend to that portion of time which elapsed from the purchase
oi 1768 until the opening of the office in 1769: a period of about
five months. Why it should not, I had never been able to com-
preliend. Is it because the office was not open to take out rights
during this period!" This ought to furnish the stronger reason
in support of the usage, which had its origin in the office not
being open to take out rights during the proprietary minority.
It was not in the face of any act of Assembly to settle; for the
law prohibited only settlements before the purchase^ but this
was after the purchase. '\t was not in the face of the proclama-
tion of the proprietary governor, commanding settlers to re-
move; for that respected residents l)efore the purchase. Was it
because that on the opening of the office in 1769, the proprieta-
ry declared that in reSpect to the locations drawn on that dav,
the third of Aprils no regard would !)e paid to those who had
settled, and made what they called improvements^ since the
purchase? It could not be; because, if the settlement could pro-
tect against a grant, the declaration ex post facto^ or retrospec-
tive, could not take the protection of the law awaj. It was /tw
sub srraviore le^c; a law of their own in the usage thev had
countenanced; sanctioned bv the act of Assembly in the year
1730, 1 St. Latvs 248. and which had been establisht:d by the
decisions of courts and the verdicts of juries. But it was not
their meaning, and they have not made it; it would involve an
inconsistency in the declaration. I'or settled j)lanlations mado
before the purchase^ are declared to be respected; ancrshall they
be understood to h:i\ , that settled plantations made since the
purchase shiill noir The first made when there was a law against
it, and the second when there was no law, and no intimation
from any authority that it was prohibited. Sc ttled i)lantationH,
rspeciallij hi/ the permission of the commandinrr officer^ cnrricj
with it the implication, that without the permission of the
commanding officer, settled ])lantations were to be respected.
" Settled or ivndc ivhat then call imprcvements^^'' therefore

392 CASES IN THE SUPREME COURT

1808. means something else than settled plantations, and inferior

~~r to this.

Lessee

of But let it be the meaning of the declaration, that no prefer-

BucH\NAN ence shall be given in case of a number drawn, from being cou-
M<r^ pled with a settled plantation made since the purchase, it does

not necessarily follow that they shall be considered as saying
that no settlement shall be respected as protecting against an
application. But if they had said it, the previous question oc-
curs: could their saying so supersede the usage, and the law of
settlement as to settlement made before? If so, no evidence can
be given of settlement made in that isolated space of five
months. It is an interval cut off from the usage. How could
settlers be aware of this, who during the winter after the pur-
chase, with great suffering and much labour, went upon the
ground and established a residence? It is argued that the pro-
prietary not opening the office and granting warrants, evinced
that no disposition was to be made for* some time of the lands
then lately purchased from the Indians. This is not the fact.
There may not have been what are usually called warrants, is-
sued to all applicants, but there w^ere orders of survey; they
were called special orders; and yet it has never been understood,
nor do I know even any Nisi Prius decision, that these special
orders could affect the settlement; I mean since the doctrine of
improvement came to be recognised at Nisi Prius, which I ad-
mit was not the case for a period of time. It is well known that
from the year 1783 — 4-, when the first Nisi Prius Court was
held within the purchase of- 1768 after the revolution, Chief
Justice M'-Kean^ and the associates with him, overruled all evi-
dence of improvement; so that settlements were swept away in-
discriminately until about the year 1789 or 90, when Jutlges
Smith and Teates came to hold the Nisi Prius Courts, who ad-
mitted evidence of improvement, and the whole doctrine of 1« gal
tenure as to office right and improvement underwent a change;
Chief Justice -/^'^eon himself at subsequent Nisi Prius Courts
concurring. I admit that after this period on a second eject-
ment, M''Clure V. Shearer^ evidence of an improvement made
between the purchase Novcmher '\!\kv 1768 and 3d April 1769
was overruled, as it had been on the first trial, to \xv\ great sur-
prise; for the ejectment was brought in consequence of the
change of decisions. It appeared to me an inconsistency: (or
why what is called an application for a survey, should have a

OF PENNSYLVANIA. 393

greater effect than a special order, I have not been able to com- 1808.
prehend; or rather, to put the point fairly, why settlement made t _~
in the interval after the purchase and before the opening of the of
office should not be protected. It is the inconsistency and con- Buchanan
tradiction in the doctrine of improvement with which I am dis- - , ,,* "

iVl ^ Vj I U R T*

satisfied. Either let the principle be rejected altogether, or let
it apply generally. The principle after much struggle has been
established, and it is the partial application which I resist; for
which I can see no reason, and which I take to have originated
in temporary misconception; or it is my misunderstanding
which vet exists^

Judgment reversed, and
New Trial ordered.

to^^«' SEPTEMBER TERM. I SOB.

2i,4-i9 Pittsburfr,

3"' y\\ T^ . T „ Wednesday,

is *^' Kennedy against Lowry. September

14th.

HIS was an action of slander, originally brought in the In an action

Common Pleas of Craxvford county, and removed by ^jj^ ^^.^,1,^,.^

habeas corpus to the Circuit Court, where it was tried before tion is irood

Veates J. in October 1806. The declaration contained five ,,},'!^,'.|,!^\j,j^

counts; four of w hich charged that the defendant spoke &c. of ^'>*" il< fen-

and concerning the plaintiff " in .'substance the following false, ceiiain

" scandalous, and defamatoiy words;" and one of the counts ^^■"'»1'*. " ««

laid words which were not actionable. A verdict was found c,,]!,,^^,^-. ^5^^.

for the plaintiff, srenerallu. with two hundred dollars damages. ^^" »" *P-

A m(jtion was then made m arrest ol judgment upon two jccisiun of

jn-ounds: First, That the verdict was general, and one or more t''^' tJn cnit

r 1 1-1 • 1 1 • I -11 Court upon

ot the counts did not contam words which were actionable: a motion in

Secondly, That four of the counts did not charge words, but ^'"'^^st of
the substance of words; whereas words should be sptrifically this Courtis

laid, though tluv might be proved substantially. Thi- motion '''^'"^"^'.""'"^
1 1 1 ' I • TT 1-1 ■ III ■'*'""^ .situa-

was overruled by his Honour, and judgment entered tor thetion as the

plaintiff; upon which the defendant appealed to this court. -''"^f^"'"''''*^
IT L ri \ tfiv • court, wticn

Upon the report ol the case here by Judge Yeatf.s, it ap- tiir motion

peared that no material evidence was givm which applied par- "^^'"^''*^»

° ' * ' aiui may

direct the
verdict antl judrfmtut to i)c entered as he ntij^htiiavc done

Vol.. I. r, n

J94 CASES IN riu<: supreme court

1808. ticularly to the difective count, the fourth, but that all of it

Kenned7^PP^''^'^ ^° ^^^ ^^^^ counts.

1'.
LowRY. .S". B. Foster for the defendant. As to the first objection, the
point is almost too plain for argument, that as the verdict was
general, and one of the counts bad, judgment ought not to have
been entered upon the verdict. There is no pretence for sup-
porting the fourth count, unless by the innuendo; but as it is the
proper business of an innuendo to explain matter sufficiently
expressed before, and not to add to or extend the words, ac-
cording to The King v. Horn., (a) the innueyido cannot help the
declaration. If no evidence had been given upon the bad count,
it might have been in the power of the Circuit Court to amend
the verdict, by entering it upon the good counts; but some evi-
dence was given, and whether it had weight with the jury or
not, it is impossible to say.

The plaintiff in the next place ought to have set out certain
words, notwithstanding he is permitted to prove their sub-
stance. For if he is allowed to set out the substance as well as
to prove it, it will not only be a material innovation upon the
practice, but the court cannot say upon the face of the declara-
tion whether the words spoken are actionable, and it may tend
to surprize by rendering the charge too indefinite for the de-
fendant to meet it. There is no precedent of such a declaration
to be found.

Baldzubi for the plaintiff. The words " in substance" may at
all events be considered as surplusage; but if not, still as the
plaintiff is allowed to prove the substance of the words laid,
there can be no reason against his laying the substance, because
the same principle governs both cases; it is the charge by the
defendant which is material, and not the very words, and for
this there is a direct precedent in 1 liic/i. Prac. R. R. 108.

As to the other objection, this court may decide as the Cir-
cuit Court ought to have done; it stands in the same situation;
and the case is to be treated as if it originated here. The report
of the Judge shews that no material evidence applied immedi-
ately to the bad count, and that all of it applied properly to the
good counts; the verdict may therefore be amended by his

(a) Cb«/>. 682.

OF PENNSYLVANIA. 39

notes. IVilliams v. Breedon (a), Harrison v. Harrison (^), Staf- I8O8.
ford V. Green (c). Ke^^;;;^

A W. Foster in reply, conceded that if this Court could do Lowrt.
as the Judge who tried the cause might have done, the verdict
might be amended; but he contended that this Court was now
setting as a court of error, and could take no notice of the evi-
dence at the trial; that judgment below had been actually
entered, and that the only question was, whether it had been
properly entered upon a general verdict on such a narr.

The opinion of the Court was delivered by

TiLGHMAS C. J. This is an appeal from the Circuit Court
oi Crnxvford coxxnty. It is an action of slander which was tried
in October 1806. A verdict was found for the plaintiff, and en-
tire damages assessed. The defendant moved in arrest of
judgment, the motion was overruled by Judge Teates, and from
his decision the defendant appealed to this Court.

The reasons urged in support of the appeal are two. 1. That
the declaration contains five counts, in lour of which it is
alleged that the defendant spoke in substance the words fol-
lowing viz. — and then the words are inserted. It is contend-
ed that the declaration is bad, because those counts do not set
forth the very words which the defendant spoke, without
which the court cannot judge whether they are actionable. It
was formerly held, that unless the plaintiff proved the identical
words laid in the declaration, he failed in supporting his action;
but this strictness has long been relaxed; and it is now siffi-
cient, as is conceded by the defendant's counsel, if the plain-
tiff proves that the defendant spoke words siibstantially the
same as those laid in the declaration, {d) This being the

(«) 1 B^>s. ijr Put. 329. (c) 1 Johnson 503.

(0) Cro Jac. 18 J.

(J) Up'iii a question connected witli lliia doctrim', tlic reporter has been
favoured by Jiidpe Rush witli his opinion, adopted by the Court of Common
Ple-is, in the following case dcci<lcd in February 1308.
"si*

Tracy 1 Tracy the ijlaintifl' obtained a verdict in slander for

V. V forty five <Iollars. Upon the trial a point was rcscrveil for

Ha.rk.ins J i|,(. opinion of the court, whether words laid in the stcind

person, " you are a tliiff," nro supported by ovid^nre that th^v were spoke n

CASLS IN THE SUPREME COLRT

1808. case, we see no reason why it is not sufficient to allege that the

r: 7" defendant spoke certain words in substance as follows 8ic. If

\, he does not prove words of the same substance, he fails; if he

LowRY. does prove them, the allegata ^nd probata agree; and as to the

Court's judging whether the words are actionable, it is easy

for them to determine whether the substance laid in the decla-

in tlic third person, " lie is a thiefj" and that point was accordingly argued
\ipon a rule to shew cause why there should not be a new trial.

Rush President. In actions of slander, the general rule is, that it is suffi-
cient if the plaintift'provesthe wAj<n«ce of the words, as laid in his declara-
tion. As an illustration of this rule, it is expressly stated by Butler, in his
Lavi of Nisi P'iiis published in 1772, that words laid in the second person,
are substantially proved by evidence they were spoken in tl)e third person.
This was clearly the law of tlv land, and universally admitted to be .so, till
the \car 1773, when Lord Mansfield unfortunately adopted a different
opinion in the case of Averillo v. Rogers, the report of which I have not been
able to find in my researches. He is said to have decided, that words laid
in the third person are not supported by proof they were spoken in tlje
tccnnd person, there being a difference, says liis Lordship, between words
in a passion to a man's face, and spoken deliberately behind his back, the
first being more excusable. Esp. 521. Doubtless there is a difference be-
tween words spoken in a passion, and deliberately; but surely it does not
follow, that because words of slander are spoken to a man's face, they were
spoken in a passion; and even if it were the case, it could be considered in
no other light, than a circumstance to extenuate damages, and can have no
tendency to prove they are not substantially the same with words spoken
deliberateh. The uttering words in a passion, or deliberately, is matter of
evidence to be left to the jury. Whether words are substantially proved a.s
laid, and wlietlier they are viore or less excusable, arc distinct things; the
former being matter of law, the latter a proper subject of inquiry for the
jury.

The old law which declared the words are substantially proved, if spoken
in one ))erson and proved in another, appears to be founded in reason and
good sense. The substantial ground of the action is charging the ])laintin
with being a thief; and whether the charge be conveyed in the second or
third person, the crime is equally imputed. Whether the imputation of theft
is openly made to a man's face, or at a few yards distance, and out of his
hearing, the accusation is the same, and the slander the same; and the
damages should depend, not on tlie words being spoken to tiie face of a
man, which may be in a passion or otherwise, but on the malice and deli-
beration with which they are delivered, and n«" requency of their re-
petition.

In our opinion the law has been long settled in Pennsylvania, agreeably to
the old edition of Buller,- and wc are happy on this occasion, that we are
not obliged to entangle justice in nctts of law, or to sacrifice the dictate.**
of common sense upon tiie altar of high autiiority. Let the rule be dis
charged.

Vide Jiex v. Berry, A, D. ilT E.217

OF PENNSYLVANIA. 397

ration is actiouable; if it is, the declanxtion will in tliat respcCL ISOS.
be good. It was objected by the delendant's counsel that "<^'~j^ei^nedy'
precedent to support such a mode of declaring could be pro- v.
duced. But one precedent has been pz'oduccd from 1 RIc/t. Lov.kv
Pract. B. R. 108. where the purport of words was laid, v.hich
is in effect the substance of the words; and we make no doubt
but that other precedents may be found to the same purpose.

The second Vitvison of the appeal is that the fourth count is
bad, the words contained in it not being actionable; and the
jury having assessed entire damages, judgment could not
properly be entered upon it.

There is no doubt of its being a settled principle that judg-
ment cannot be entered upon a verdict assessing entire damages
in slander, where one of the counts is bad. But it is equally
certain, that this principle has often produced an arrest of judg-
ment contrary to the merits of the case. Accordingly, for some
time past, the courts have done all in their power to get rid of
it, so far as is necessary to do justice to the parties. The reason
of the rule is, that as the jury have blended in their damages the
words that are actionable with those that are not actionable, it
is impossible for the court to separate them, so as to make the
defendant answerable only for the actionable words. But in
cases where no material evidence has been given, except what
went in support of the actionable words, it is to be presumed
that the jury, in forming their verdict, paid no regard to any
words but those which were aeiionable. In such cases the court,
to support tiie intent of the jury, will direct the verdict to be
entered for the plaintiff on those counts only which are good.

It appears from the report of the Judge who tried the cause
that this was a case of the nature last mentioned. There is
no doubt therefore that he might on application to him have di-
rected the verdict to be entered on those counts to which there
is no objection, if the plainiiff's counsel had thought of asking
it; but in the liurry of business this was overlooked. But can
this court do it.'' The defendant's counsel contend that we can-
not, because we are sitting as a Court of Krror, and can take no
notice of the evidence, i'his would certainly be the case were
wc acting on a writ of error from a Court of Common Pleas.
But this cause does not come before us on a writ of error, but
on an appeal of a special nature. By the act of 20tli March
1799, 4 St. Lmi's 5fi2. thf* Court" of AV-v; Priui' were nliolished

398 CASES IN THE SUPREME COURT

1808. In all the counties of the state, except the county of /V»7a</(r/-

K.ENNKDY pfli(l^ and instead of them were established Circuit Courts to

I-'- be held by one or more Judges of the Supreme Court. The

.o\\ii\. Qi5Jj.j,j. of this change was to make the administration of justice
as convenient as possible, bv bringing not only the trial, but all
the proceedings (the judgment included) to every man's home.
It was also an object, in case of dissatisfaction with the opinion
of the judge before whom the cause was tried, to obtain the
decision of the Supreme Court, with the same ease and dispatch
with which it had been before obtained after trials at Nisi Prius;
and further, it was thought desirable (as business in the Circuit
Courts must generally be dispatched in a hurry; to give an ap-
peal from decisions on inotions for new trials, and other lyiotions^
upon which no writ of error would lie. The words of the act
are as follows: " If either of the parties is dissatisfied with the'
"judgment or decision of the said Circuit Court on any de-
" murrer, case stated, special verdict, point reserved for the
"• consideration of the court on the trial, motion in arrest of
"'■judgment or for a ncxv triah or to set aside a judgment, dis-
" continuance, or nonpros, that then and in such case the party
■•' so dissatisfied may appeal &c." The practice under this law
Tias been such as to render the proceedings on the appeal as little
expensive and as expeditious as possible. On an appeal in case
of a motion for a new trial, the Judge who tried the cause, re-
ports the evidence from his notes, just as if the trial had been
at Nisi Prius. Now upon the true construction of this law, we
conceive that this court is placed in the same situation on an
appeal from a Judge's decision on a motion in arrest of judg-
ment, as the Judge himself stood when the motion was made
before him; of consequence we have a right to examine the evi-
dence, and to take any steps for supporting the verdict which
he might have taken. We have heard his report of the evi-
dence, from which we think ourselves justified in directing that
the Circuit Court shall cause the verdict to be entered on all
the counts but the fourth for the plaintiff, and on the fourth
count for the defendant; and that then judgment be entered for
the plaintiff on that verdirt.

OF PENNSYLVANIA. 399

1808.

3»y

"m-^ Lessee of Ross and others against Cutshall and mXl'Iav,

5 *>* others. - September

5_*^ Uth.

'' I "'HIS was an appeal from the decision of his Honour Judge Articles of
•*- Brackenridge at a Circuit Court for Bedford in October beuteTn the
1 806. proprietaries

It was an ejectment for a tract of hmd to which the defend- yania'and
ants had a regular title under the state of Pennsylvcmhi, commen- Maryland,
cing by application in August 1766; but the plaintiff claimed jj(j,„^(jj^,.jg^
under a title derived from Lord Baltimore the proprietary of "f^'if two
Marijland^ in the following manner: On the first of ^d>ruarij\;\y^l^^^^-^^
1760 a special warrant was issued to David Ross from the land evidtnce
office of Maryland^ for " Five hundred acres of vacant land injnp. proved
" Frederick county, between Little Meadow and Buck Lodp-e on "^ acknow-
" PotOTvmac river above Fort Cumberland^ partly cultivated.'''' coidiip to

On the 30th April 1762 a survey was made for Ross^ the^^'l^" '^^^^ of

certificate of which stated, that by virtue of a renewed warrant iieini^ in the

of 4th Februnrij 1762, two himdred and ninety-five acres were ''•'^"'*' "^ ^

■ .... slate paper

surveyed, called the Dry Levely begmning at two white oaks *m;11 known

standing on the top of a hill on the west side oiW'iWs creek ;";.^'^^ .^o"'"*-*

. of justice.

but the survey said nothing of Little Meadoxv and Buck Lodge^ A survey

or of its being partly cultivated; and it was said to be ten ""''^'''.'^ ''^'
. ' • lu-vved wai--

miles from the Potoxumac^ and below Fort Cumberland. A pa- rant issued

tent for this survey was granted by Lord Balt'imorc to Ross in|''"'V ^Ij.^
•^ ^ -' land (ilnce

December 1762. of Maryland

The land in question being within the state of Ptvjn.s7//t;fm/V/,",'|J'j'^'j^^'*
the plaintiff's counsel offered in evidence upon the trial, a pa- surveyed is
|)er purporting to be the original articles of release &c. between J.'^'i,^^^j'}-J^. .
Lord Baltimore and Thomas and R'lchard Penn dated 4th 'JuUi :i w j.irant
1760, and certified to have been at that time acknowledged •'< - j,'ii'v'i760*
fore a master, and enrolled in the Chancery of England; the oh- reh"it< s to
ject was to shew that the plaintiflF's tide was protected by thc[|]^ or'l'in°a*l
following proviso therein: " Provided that this release shall not warrani. and
" extend to the right of any grantee &c. of lands now in the ac- i,V^'hc\M^rrec-
" tual possession and occupation of such grantee Sec. which havi "'<"' l^'--
" been at any time and in any manner heretofore granted b\ orp'|.,',,Vrie.^
" under the authf)rit\ of the said Lord Baltimore or his aii-i'i''cs-
' rcstors, but it .shall be lawful for such tenants and occupiers

4U0 CASLS LN TIJE SUPUEMK COURl

180b. *' il'^ '!■ lieirs &c. to hold and enjoy the said lands, paying quit-

j j,j;sp^. " rents &c. to the proprietaries of Fermsyhania.^^

of The admission of this deed was objf ctt-d to on the part of

Uoss ilic defendant, because it was not proved in any mainner known

/. ' to the law o{ Pennsylvania; hut the objection was overruled.

<- VTSHALL. rr., , r 1

The defendant s counsel then urged that the plaintiff's war-
rant did not call for the lands surveyed, and therefore did not
attach to them until the 30th April 1762; and further, that the
survey was made, not under the original warrant, but under a
distinct warrant of 4th February 1762; that consequently, as
the agreement between the proprietaries, by which they mutu-
allv released, was dated 4th July 1 760, no title v/hich had not
vested at that time was protected by the agreement, particularly
against a regular title derived from the proprietaries of Fenn-
syhania. His Honour however charged the jury, that the re-
newed warrant was a continuance of the warrant of 1760, and
that under it a survey of the lands called for by the original
warrant was protected by the articles of 1760. The jury found
for the plaintiff. A motion for a new trial was made and over-
ruled, and the defendants for all the reasons above mentioned
appealed to this court.

Woods for the appellants, contended that the articles of 4th
juhf 1760 had been erroneously admitted, without the proof
required by the law of Fennsyhania; Act of 1715, 1 St, Lazvs
109.; the certificate and enrolment in Chancery being of no
avail. That even in the case of a deed more than sixty years
old, this court in The Lessee of Thomas v. Horlocker (a) had
thought some slight proof of the hand writing of one of the wit-
nesses essential to make the deed evidence. He contended fur-
ther that the Maryland w?irr ant under which the plaintiff claim-
ed was vague and uncertain, and that no right attached until
survey. But that at all events the land surveyed under the re-
newed warrant was not that called for by the original warrant,
as nothing was said oi cultivationyLittle Meadozi).,or Buck Lodge;
and the weight of the evidence shewed that the land in ques-
tion was wide of these places. That the articles between the
proprietaries only protected grantees and those claiming under

(a) 1 Dull. 14

OF PENNSYLVANIA. 401

them Avho were then in actual possession, which was not the 1808.
plaintiff's case; and that after Lord /^(7/^i7?z(?re had released to l^essec
the Penns^ he had no right to grant to the plaintiff, even in con- of
sideration of purchase money before paid. That the verdict was ivoss
therefore against law and evidence, and there should be a new rT;TSH\i i
trial.

Poss for the appellees answered that the deed was admissible
upon either of two grounds; as an ancient deed, which hud
been accompanied by possession, Bull. iV. F. 255. 4 Co?n. Dig.
9i. B. 2. 12 Fin. 84. Evidence; or as a public state paper well
known to courts, and requiring no proof. That in The Lessee
of Thomas v. Horlocker^ possession had not accompanied the
deed, which was material. That this deed had been inrolled in
Chancery in pursuance of a decree of that coui't to which it re-
fers. Pemi V. Baltimore, (ci) That it was found a few years since
among the papers of Dr. Ross^ and in it were sundry questions
proposed to Stephen Bordltij^ a gentleman of the law, concern-
ing the effect of the articles upon Lord Baltimore^- interest,
and a rough draft of an opinion in Bordleifs hand writing, dated
4th Fcbruarif 1761. That this was such an account of the (\ii<:d
as brought it within the principle under which ancient deeds
arc admitted, and made it a strnngrr case than that of The
Lessee of Hijmn v. Edivards (/>) in which the copy of a deed
inrolled in the King's Bench, and proved before the Lord
Mayor of London to be a true copy, was admitted in evidence
by this court.

To the other objections he answered, that the original war-
rant and the payment of the purchase money gave the plaintiff
an equitable title. That the case was not so much against him
as it would have been imder a Pennsylvania warrant, which bv
its own form required a survey in six months or was void, but
nevfrihckss was allowed to be executed after six months. That
Lord Baltimore in practice demanded a renewal of liie warrant
after two years, which then related back to the original war-
rant, and had the same effect as if there h:ul Inen no limitation
to the time of survey. That whether the survey was on the
land called for, was a fact which the jury had decided; and thai

(a) 1 Vez. 444. (tA 1 /),//. 1

Vol. L 3 E

T.
Cl.lSIJALI.

402 CASES IN THE SUPREME COURT

1808. ''s Lord Baltimore was bound to account to the Ptnns for thfc
I ^, purchase money received by hun, it was obviously against
of equity for them to vacate the grant, and to receive the nxoney
Ross too. That the articles of agreement should be construed libe-
rally; and as the final line between the proprietaries was not run
initil 1766, the agreement of 17G0 should be continued down
to that time, and the several agrcenjents and the running of the
final line considered as one act. 2 Com. Dig. 62, 63. Hoh. 220.
IJoldfast V. Clapham (r/), Vaughmi v. Atkins. (/;) The defen-
dant's title did not commence till August 1766.

In reply it was said that the whole depended upon the arti-
cles of 1760. That tenants and occupiers of the land, and
grantees, were protected, but that the plainiift' was neither of
these; and as the land surveyed by the v.arrant of 1762 was not
called for by the warrant of 1760, the tract in question being
ten miles from the Potoxvmac and below Fort Cumber/and^ it fol-
lowed that to support this survey was actually to allow Lord
Bahimcre to make an entirely new grant after the year 1760,
when he had released all his right to the proprietaries of this
state.

The opinion of the court was delivered by

TiLGiiMAN C. J. This cause comes before the court on an
appeal from the Circuit Court oi Bedford county. It was tried
lOih f^f^o^d'r 1806, and a verdict found for the plaintiff". The
defendants moved for a new trial, and this motion being over-
ruled, thev entered their appeal to this court.

The first reason offered for a new trial is, that the Judge
who tried the cause admitted in evidence certain articles of
agreement between Lord Baltimore the proprietary of Mary-
land^ and Thomafi and Richard Penn the proprietaries oi Penn-
sifl-oania^ dated 4th July 1760, which were acknowledged by
the parties before a Master in Chancery, and enrolled in the
Court of Chancery of England^ but which had not been proved
or recorded in Pennsylvania. We are of opinion that this deed
was properly admitted in evidence. It was an ancient deed as-
certaining the boundaries of the then provinces oi Pennsylva-

(,-;) 1 /). cT E. 600 (i) 5 Burr 2r85.

OF PENNSYLVANIA. 403

riitt- and Marylati^, and may be considered in the light of a state 1808.
paper, well known to the courts of justice, and which has been Lessee
admitted as evidence on former occasions. Even deeds between of

private persons, thirty years old, and attended with the posses- Ross
sion of the land conveyed by them, have been received as ^
evidence without further proof. But this is a much stronger
case.

In order to understand the next reason for a new trial, it is
necessarj^ to mention the plaintiff's title as proved on the trial.
He claimed under a warrant Febriiarif 1st, 1760, from Lord
Baltimore to David Ross^ for " Five hundred acres of vacant
" land in Frederick county, Marijland^ between Little Meadow
" and Buck Lodge on Potoxumac river above Fort Cumberland^
" partly cultivated." This warrant was renewed 4th February
1762, and a survey of two hundred and ninety-five acres was
made oOth y4/;ri/ 1762, being the land in dispute. This land was
granted to D. Ross by patent from Lord Baltimore 25th De-
cember 1762. We think there is great reason to suppose that
the land surveyed does not answer the description in the war-
rant. The case depends upon the articles of agreement 4th
July 1760 between Lord Baltimore and the Fcnns. By these
articles the estates of all persons were protected, who had, be-
fore that time^ acquired title by any kind of grant from Lord
Baltimore or his ancestors. The question then is, had Lord
Baltimore made a grant to David Ross prior to 4th July 1760?
If the original warrant had called for the land afterwards sur-
veyed, we think that the title of Ross would have related to the
date of that warrant, although the survey was not made until
some years after, provided the warrant had been renewed ac-
cording to the practice of the land office of y]7f/////<//ir/. But sup-
posing as we do, that the warrant did not call lor the land sur-
veyed, the grant to Ross cannot be said to commence before the
lime of the survey viz. 30th April 1762, and is therefore u
mere nullity. We can find nothing in the articles of agreement
between the proprietaries, to establish a title of this kind to
land in this state, against a person who, like the defendants, af-
terwards acquired a regular title from the proprietaries of
Pennsylvania. Whether the land in dispute was called for by
the warrant, was a matter of fact which tiie jury decided in
favour of the plaintiff. But agreeably to our usual practice, wc

404 CASES IN THE SUPREME COURT, &c.

1808. think it proper to order a new trial, because it appears to us

Lessee ^^^^ ^^^ weight of the evidence was strongly against the

of verdict.

Ross
X,. Judgment reversed, and

CuTSHALL. New Trial ordered.

CASES

IN THE

SUPREME COURT

PENNSYLVANIA.

DECEMBER TERM, 1808.

Id 405
8srI48

Gibson against The Philadelphia Insurance Company. 1808.

H,o I r 1 • Saturday,

lb cause came betore the court upon exceptions to a Dicembcr

report of referees. -*^^''-

An agree-
The plaintiff on the 31st of January 1806, borrowed of the nient by a

1 r 1 1 • 1 1111 1 • lender on

(Jelendants thirty thousand dollars on respondentia, '->pon ^.^^^^^ .^^^^-^

specie, goods, wares, and merchandises, laden or to be laden '| '^J* be

on board the ship Triton^ bound on a voyage from Nexuca.stle^ .. avcra-'c

Delaware^ to Canton^ and at and from thence to Philadelphia. " '» tbi^

The bond obligated the plainliil", in case the voyage should be « ,,'^.j. ,,g ,j,^.

performed, to pav the i)rincipal sum, together with 583 dollars '* ilcrwri-
r .' , . . . . . 1 r 1, • " tiTs on a

15 cents per calendar month; and it contained the tollowing .. policy of

clause, upon which the controversy arose: " It being first de- " "isurancc

iiccordni*''
" clared to be the mutual understanding and agreement of the " i„ tin; i,sa-

" parties to this contract, that the lender shall be liable to " K"^'* -V^*^

" average, and entitled to the benefit of salvage, m the same » of the city

" manner to all intents and purposes as underwriters on a policy '' "* ,^''.'''V,

' ' . clclphiu,

'' ot insurance, according to the usages and practices oi the city does ikh

" of PhilacUlhhiay "^f'^y-

' till- l)()rro\s -

cr U) calcu-

liitc an average loss upon the wliolc aniounl of the money loaned and the viarine int-.rest, hu^

merely on the cost, and cliarpes of tl»e jfoods on board, and llie (ni inium of insiirince

Upon an insurance on floods, the underwriters are not liable lur iVeijjlit f<:iid by tlit

owner of tlic pfMuls during the voyapc.

Vol . I. .1 p

■106

CASES IN THE SUPREME COURT

Ins. Co.

1 808. i he friton was chartered from Thomas Carberry and George

Gibson Johnston of Nexv York^ by Nicklin and Gr'jjfith o{ Philadelphia^
T-. at a freight of 40,000 dollars; the freighters to pay the ship's
Philadcl. expenses, and to deduct them, together with all other sums ad-
vanced on the ship's account, out of the freight. To these ex-
penses and advances, the shipment of the plaintiff contributed
at Canton; and on the homeward passage, his goods, consisting
of saltpetre and teas, suffered sea damage, the former 20 yivo per
cent, and the latter 2 -po% per cent.; and the question, upon what
amount this average should be calculated, was submitted to
arbitration under a rule of court.

The referees reported for the plaintiff 5824 dollars 8 cents,
according to the following statement:
Loss on Saltpetre, admitted to be

on Teas,
Cost of Saltpetre,

2000 pcculs, at S 1 1 S 22,000
Charges, per invoice, 2,174

Commissions, 3 per cent. 725 22

24,899 22
* Premium, 9 per cent.
Abatement, 2 per cent.
Commissions, \ percent.

to cover S 3,235 47

20 j%°(j per cent.
2 rixi Ptr cent.

20 T?5°o on

28,134 69 gives S 5,880 15

• This was the premium thurjjccl in calcuUitinj^ the monthly payment for
the loan, as follows:

Sum loaned, - - - §30,000

1 per cent, per monlh, 12 mos. 3,600

Premium of insui-ance, 9 per c.
Abatement, 2 per c.
Commissions, A, to cover

9 percent, on

66,^M

4,366 10
§37,966 10

is g 3,416 94
Interest, 3,600

7,016 94
S 7,016 94 cts. for 12 montlis is g 584 74 cts. per month, nearly the sum
in t lie b'lnd

OF PENNSYLVANIA. 407

Amount brought forward, S 5,880 15 1808»

Cost of Teas, Gibson

120 qr. chests H. Skin, §2,192 62 .■^•

Paper for marking, 60 Ins. Co-.

Commissions, 3 per cent. 65 79

2,259 01
Premium, &c. to cover, 293 54

2 y^ on - - 2,552 55 gives S 62 79

5,942 94
Deduct two per cent. 118 86

Amount of award, 5,824 08

To this award the plaintiff filed exceptions: 1. That the ave»
rage should have been calculated on the amount of the loan and
interest when the Triton returned, the special clause in the
bond making it a valued policy, and the whole amount of the.
loan, and the marine interest at the time of the ship's re-
turn, being the value. He therefore claimed according to the
following adjustment.

Cost of Saltpetre, charges, and commissions, S 24,899 22
of Teas, - ... 2,259 01

27,158 23
20 f'^ per cent, on 8 24,899 22 is g 5,203 94
2 T*/^ per cent, on S 2,259 01 is 55 45

8 5,259 39

Whole amount of loan and marine interest 38,747 dolls. 25 cts.
Then,

If 27,1 58 dolls. 23 cts. lose 5,259dolls. 39 cts. — 38,747 dolls.
25 cts. lose 7,503 dolls. 77 cts. the amount claimed.

2. That even supposing the calculation of the referees to have
been founded on a right principle, yet, as the plaintiff had paid
at Canton a portion of the frtigiit out and home, which was
deducted from the money shi|)ped, the referees should have
added this to the cost and charges of the goods, and so settled
the average upon a larger sum.

By the examination of tlie referees it appeared that the
plaintiffendeavoured before them to maintain his//r.v^exception,
upon the ground of a parol agreement before the execution of
the bond, that the loan and marine interest should compose the

403 CASES IN Tini SUPREME COURT

1808. value; but tlipy were decidedly of opinion thnt nothing had oc-

"^""77" curved to vary the written contract. He also alleged before them,

7,. in support of that which now formed his fipcond exception, that ;i

Philadel. usage existed in riiiladelphia^ in settling an a^'erage loss on a

ins. Uo. p,^]j(.y on such a voyage as this, to add to the cost of the goods,

the freight paid at Canton; but they Avere clear that no such

usage was proved, nor had the}' anj' evidence of it.

The exceptions were argued at March term 1808 before the
whole court.

G//>5(j7i and Z/?^??-.?!?// for the plaintiff. The questions in this
case are, 1. Whether the defendants are not liable as upon a va-
lued policy. 2. Whether, even if their liability is as upon an
open policy, the report is not incorrect.

It is perfectly clear, if this be a valued policy, that the referees
have erred; and there are two circumstances which shew it to
be valued: the nature of the contract into which the clause is
introduced, and the premium which the plaintiff has paid.
Without the special clause, the lender would not be liable to
partial loss. 2 Marshall 662. In case of such a loss then, the
borrower would lose a proportion of the money loaned and its
marine interest; for he would be obliged, notwithstanding the
loss, to pay the entire interest as well as the loan. The clause
was Introduced to secure the borrower in this respect; it must
be understood with reference to the peculiar contract of re-
spondentia, which in the event of a partial loss involves the
borrower in a loss of principal and interest; and it must be so
construed as to cure the evil it was intended to remedy. If the
principrd and interest do not compose the value, then in case of
a partial loss, the borrower must be liable to the whole marine
interest as before: that is, instead of receiving an average upon
what he loses, he will only receive an average upon a part of
his loss. His whole loss is principal and marine interest; his
indemnity should be to the same amount. This can be done
onlv by treating the loan and interest as a valued policy, and
giving him the same proportion of the whole, that his goods
have sustained damage. As for instance: take 10,000 dollars
for the loan, and 5,000 for the marine interest; suppose the
money loaned to be on board, and that 5,000 dollars are lost.
Tnating it as an open policy, he will receive but about 5,000,
whereas his actual loss is 7,500, since he has that amount to

OF PENNSYLVANIA. 409

pay, without having any representative of it onboard. Trel- 1808.
ing it as a valued policy, he is excused 50 per centum of tie q
loan and interest, which is precisely his loss. x>.

No light can be thrown upon this contract b}' English dci- Philadel.
sions; for by the law of England^ there is neither average lor ^°^' ^'
salvage upon bottomry and respondentia, except upon Inst
India voyages, which are provided for by Stat. 19 G. 2. c.l7.
2 Marshall 662. But our argument is justified by the viev of
the subject, which is taken by both Emeri^ron and Vd'in.
2 Etnerig. 54^^. 2 Valin 19. In the case of general average, on-
tribution is made upon the loan; and there is no reason or a
different rule in the case of particular average. In fact the erm
average^ as applied to a bottomry contract, means a dedution
of the loan, and of course of the interest.

But the mode of calculating the premium shews an inteition
to ind<-mnify to the whole extent. The interest was addd to
the principal, and to that a premium to cover; so that wehave
paid a premium upon principal and interest, which could»e for
no reason but because an indemnity might be claimed y the
borrower, to that extent. A total loss would have cleaed us
from the whole of the debt; a partial loss should relieve u from
a corrcspondentpart of the debt. It is in truth nothing bt a fair
indcmnitv, as the cargo has cost us the whole amount Df tlic
loan and interest.

If however an open policy is the rule, the freight shoud have
been added. It is part of the cost of our goods; for itvas ta-
ken out of the money shipped, and was a charge payole be-
fore the goods could be laden. 1 MagensZT. It is acccdingl)
allowed in 1 Magens 256. The trade to Canton from th> coun-
try is peculiar. The freight is paid abroad; and if we d not re-
cover it in case of loss, wc do not receive an indemnty. W«
should also have had a return premium for short jroperty.
The loan and interest amount to 38,747 dollars 25 ct.; and a
premium was paid upon the whole of it. If the m asure is'
the amount on ijoard, then wc have paid for mort than wj*
have, and.a return is indisputably due. I

liinnctj for the defendants. The rule of this court is perfect
ly settled, that there must be a plain mistake in law or fact, ♦
vitiate a report of referees; so that if the court have a dout,
we arc entitled to the benefit of it. But the case secirs too ploi
for doubt. The whole question depends upon thcncaning>f

410 1 CASKS IN THE SUPREME COURT

J 808. tiE special clause, by which the defendants are made liable to

Q a>'!;ragc, in the same manner as underwriters on a poUcij of in-

X,. sir.ance^ according to the usages of Philadelphia. To what ex-

Philadel. teit, and in what manner then, are underwriters lialjle? If this

ns. Lo. J.QJ i^j, ascertained, the case is at an end.

'inhere is no pretence for construing the clause with reference
to he peculiar character of a bottomry contract; for the parties
ha\!: introduced another contract as the rule, namely, the con-
trac of insurance; and such as their liability would be upon a
poliy, such and none other it is upon this clause. Now there
is nithing more certain than that every policy is open, unless it
is expressly valued. The terms themselves prove it. A policy
is olthe latter kind, only where a value is set upon the proper-
ty, aid inserted in the contract in the nature of liquidated da-
mags, to save the necessity of proving it. Marshall 190. If
the prties have not agreed upon the value, the policy is open;
and i remains for the assured to shew the value in case of loss.
Ther is certainly no value fixed in the present contract, nor even
a surrnamed, except 30,000 dollars, which the plaintiff denies
to bethe value. The defendants are not to answer as under-
writer on a valued policy, but as underwriters on a policy of
insurace generally, which of course means an open policy. If
therefre they are to abate a part of the loan and its interest,
withou regard to the value of the goods on board, they are not
liable i the same manner as underwriters; for as against under-
writer;! where there is no valuation ia the policy, it is only the
cost ofihe goods, with all charges till on board, and the premi-
um ofinsurance included, that makes the value insured. 1
Magen\^7. But take it to be a valued policy. What is the va-
lue? If it is merely the 30,000 dollars, the plaintiff gets too
much, a the referees have settled the average upon a larger
amount. If it goes beyond this, it includes the marine interest;
and ther it becomes a fluctuating value from 30,000 up to
38,747, iccording to the lapse of time, and is one tiling if the
loss happens today, and another tomorrow, which is a sole-
cism. TVis however is not the greatest objection to it. The
narine interest is nothing more than a compensation for the
oan and the risk; it is the same as common interest, except as
o its amount, which is left by law to the regulation of the
•arties. If the plaintiff may make this interest a part of the
alue, there is nothing in a common case ofinsurance to pre-
'jnt his clarging the underwriters with the interest he pays for

OF PENNSYLVANIA. 1 411

his shipment, or with the interest he loses by its being a dead 1808.
capital while on board. This is at least a new doctrine; but its Gj^soj^
novelty is not the worst part of it; its effect, upon the present v.
case, is to involve both parties in pjreat absurdity. It converts Phihulel.
this contract into a wager pollcv; for if the interest is insured, "^"
it is clearly a wager. 1 Marsh. 94. Now there can be no partial
loss upon a wager. If the lender had caused himselt to be insu-
red, he could not have recovered a partial loss upon more than
the money lent; the interest not being insurable at all, if wager
policies are void in this state, and not being insurable against
partial loss, even if such policies are valid- Such an indemnity
is contrary to the nature of a wager; and yet it is the plaintiff's
argument that the contract provides for it, contrary to law, and
-against the spirit of the contract itself.

It is said that the rule for calculating general and particular
average upon respondentia must be the same. There is great
reason in this position; but it is against the plaintiff. His argu-
ment is that the instant a partial loss occurs, the marine inte-
rest is extinguished upon so much of the loan, from the very
commencement of the contract, though the loss may have hap-
pened twelve months after it. ^^'hat do the French writers say
upon this subject? Whatever may be the law oi England^ which
seems unsettled, the French law expressly subjects bottomry
contracts to the payment of gross average. Orel, clc la Marine
1681. Art. IG. Fall /I, in his commentary upon this article,
says that contribution shall not diminish the marine interest.
" La contribution au rachat ne s'impute pas, ipsojure^ sur le
*' capital donne a la grosse, a Veffet de dimimwr le profit mari-
" time; I'imputaiion ne se fait que dujour que le donneur a Ht
" mis en demeure de contribuer.^'' That is, the marine interest
runs on until the lender becomes liable to make the payment,
which in the present case was upon the return of the TritOm
and the contriljution is then made only in proportion to the ca-
pital loaned. To the same point are Pothicr^ Trait, du Pnt a la
Grosse 209. and 2 Lmvrig. 509. The case of Pons against David
& Isnard^ decided in the admiralty of Marseilles in 1750, and
reported in 2 Emerigon 410. is completely in point to the pre-
sent case. The defendants there claimed that the lender should
contribute to gross average, the same proportion of the loan
and its interest, which his part of the average bore to the capital
loaned; but the court refused, and settled the average upon th«-
capital onlv.

4r2 CASES IN THE SUPREME COURT

1808. The second exception is equally untenable. Usage is out of
GiBsov ^^^ case; there has not been the least evidence of it. The ques-
V. tion therefore is a naked one: whether an underwriter on goods
Philadel. is answerable for any freight which the owner has paid during
ins. K^o. jj^g voyage; or, in other words, whether freight paid in advance,
or pro rata^ is part of the cost and charges of the goods. There
is no case to be found that coimtenances such a doctrine; no
settlement of an average in which it has ever been included.
The charges allowed are those which are incurred to put the
goods on board; freight is incurred afterwards, and in the event
of a total loss is not due at all. The claim is therefore to make
the underwriters pay on a partial loss, what they could not be
charged with at all if the loss were total. In the adjustment set
out in 1 Magcns 256, the freight was not allowed; it was mere-
ly used in the calculation to ascertain the net proceeds of the
damaged goods, and so it always is. As to short property, in ad-
dition to its not having been made a point before the referees,
a mere statement of the demand puts an end to the difficulty.
The lender, in the first place, has run the risk of losing the
whole principal and interest, which entitles him to the whole.
But in the next place, what does the property on board fall
short of? The sum insured? AVhat is insured? Nothing but a
partial loss on the proceeds of the loan; The proceeds of the
loan were on board, the risk has been run, and the loss has hap-
pened. The borrower has therefore the benefit of his whole in-
surance, and the lender is entitled to the benefit of his whole
premium.

The cause being argued upon the last day of March term,
it was held under advisement until this day, when

TiLGHMAN C. J. delivered the opinion of the court.

In this case exceptions have been filed to the award of re-
ferees.

The plaintiff borrowed of the defendants thirty thousand
dollars on respondentia, on si)ecie, goods, wares, and merchan-
dises, laden on board the sliip Triton^ bound on a voyage from
Newcastle in the river Delaware to Canton in China., and from
thence to Philadelphia. The bond, which is drawn in the usual
form except a memorandum at the end of it, obliges the plain-
tiff, in case the voyage is performed, to pay the defendants the
sum of thirtv thousand dollars, and also the sum of five hun

OF PENNSYLVANIA-. 4IS

dred and eighty thrte dollars fifteen cents per month, for the 1808.
whole time that the voyage should continue. The memoran- Qjbsqjj
dum on which the dispute has arisen, is as follows — " It being v,
" first declared to be the mutual understanding and agreement Phihulel.
" of the parties to this contract, that the lenders shall be liable °'

" to average, and entitled to the benefit of salvage, in the same
"• manner to all intents and purposes, as underwriters on a poli-
" cy of insurance according to the usages and practices of the
" city o{ Philadelphia:'

The ship arrived in safety at Canton^ where she took in a
cargo for Philadelphia; and on her homeward voyage the goods
of the plaintiff were damaged to the amount of about one-fifth
of their value. On the settlement of this loss, a dilference arose
between the plaintitT and the defendants, which was submitted
to arbitrators. There was no dispute as to the fact of loss, bat
the question was on what amount the average should be calcu-
lated. The plaintiff first contended before the referees, that in
consequence of some communications between him and the de-
fendants prior to the execution of the bond, the average should
be computed on the amount of the loan and interest. The re-
ferees were of opinion that there was no proof of any commu-
nication which could have that effect, or any other effect alter-
ing the contract expressed in the bond. The plaintiff next con-
tended that the insurance must be considered as having been
made on aD«///<Y/ policy, to the amountof thirty-eight thousand
seven hundred and forty-seven dollars twenty-five cents, and
that he was entitled to have the average of twenty per cent, cal-
culated on that sum; and he contended in the last place, that
even supposing the average to be calculated on an open policy,
he was entitled to include a sum of money paid at Canton on
account of freight, as part of the cost and charges of the goods.
On both these points the referees decided against him. Their
opinion was that the average should Ijc com])uted on the prime;
tost and charges of the goods and premium of insurance, ex
clufling the freight.

This contract, partaking of the nature i)oth of respondentia
and insurance, appears to have been lately introduced into this
city. It is to be regretted that it had not been expressed in
such precise terms, as to leave no room for that great difference
of opinion which the parties entertain concerniiig it. The court
must decide upon the matter as it appears on the face of the

V'oj.. I. •; (i

414 CASES IN TtlE SUPREME COURT

1808. liond; for tlic referees determined that there was no proof of
■"T; any extraneous facts to alter the bond, and nothinc: has been

,, shewn to us which could iniUice us to say that they were wrong

Philadel. in that dfttrmination. Then what says the bond? That the
Ins. Co. itnder shall be liable to average in the same manner to all in-
tents and purposes as underwriters on a policy of insurance, ac-
cording to the usages and practices of the city of Philaddph'ia.
What is the law, usage, and practice, in case of a loss of this
kind? The plaintiff has laid before us the calculation of a loss
on a valued policy by a very intelligent broker, Mr. Clement
Biddle; but there is no occasion to examine the correctness of
it, because there is nothing in the bond which authorizes us to
consider this as a valued policy. All policies are considered as
open unless the contrary is expressed. Then taking it as an
open policy, the average is to be calculated on the cost and
charges of the goods and the premium of insurance. There is
no ground for taking into consideration the marine interest ,
which the plaintiffs paid for the loan; as well might the assured,
in common cases of insurance, charge the underwriters with
usurious interest paid by him for the money with which he
purchased the goods. This interest is not the cost of the goods^
but the cost of the moneij with which the insurer has nothing
to do.

The case then is narrov/ed to this point, whether the plain-
tiff had a right to include the freight^ as part of the cost and
charges of the cargo. Freight in its nature seems distinct from
those costs and charges. It is the price paid for carriage of the
goods; and in case of a total loss, it is not payable at all. This
is not a new point. It received an express decision in Baillie v.
Moudigliaui, (Parke 53. 25 Geo. o.) where it was the unani-
mous opinion of the court, that in an insurance on goods the
underwriters are not liable for freight paid by the owner of the
goods, 'because they have not engaged to indemnify the in-
sured against it. That case is not an authority here; but it is
eniided to that consideration which we pay to the respectable
courts of all nations, when they found their decisions not on
municipal regulations, but on the general principles of mari-
time law. It appears to me therefore that the referees were
right in excluding the freight.

My opinion on the whole is that the exceptions are notgoodj^
and that the asvard be confirmed.

OF PENNSYLVANIA. 415

Smith J. My opinion is that the report be confirmed, be- 1808.

cause I cannot discover in it anv clear mistake either in fact or ^

^ viIBSON

in lav,-. V.

Award confmiied. Philadel.

Ins. Co.

Dub SO against The Guardians of the Poor.

lb 415
8s>340,

Saturday,

In Error. Dec. 24th.

THE record of a judgment against Dubosq^ at the suit of Ifthejudg'.
the defendants m error, was brought by cerf/orffr? tromj^,s^i(.e of the
before an alderman, to the common pleas oi PhiladelpliJa coun-l»-':icc is :if-

, .• ^, , . • • , ,- 1 hrmcdm the

ty; and no exceptions being filed in writing on or betore the^-ommon

first argument day after the return, the judgment was affirmed l^lt^-is, for

• 1 r 1 T 111 ^\'"'lt 01 ex-

of course, agreeably to a rule ot that court. It was then brought ^.^.p^jons in
by writ of error to this court, and errors assigned. tuvio, aprce-

-' ably to the

niles of tliat

S. Levy.ior the plaintiff in error, was now proceeding to *^"^"'"*' ^•"s

•" * I vj court NVill

open the ciTors, when not hear nb-

jeclions to it.

JViiU'i/is produced the rule of the common pleas, and asked
whether the court would hear an argument.

PerCuRiA.M. The court of common pleas has been much
harassed by ccrtioraris to justices of the peace, and it has a
perfect right, for the despatch of business, to make such a rule,
and to enforce it. After the judgment has been affirmed in con-
sequence of the party's neglect, we will not suffer him to dis-
turb it here.

Judgment affirmed.

416 CASES IN THE SUPREME COURT

1808. jh 41B

■- 4b Yi'i

4b Vi&
13SI410

SaturJ,7y, Emerick as^aiiist Harris. '^1 452

Dcc.24lh. ^ _»9_*n'

This court ^ I "'HIS was a certiorari to the alderman's court of Philadel-

ub aiit 1011- X pJi'ia, The record shewed an action of debt by Emerick
ty to (liciile .... .

upontlic against II(irtis,,'\n which tl)e defendant had. suffered judgment

ali'tv of an" *° S° ^X ^•^f'^'-i^^ f"*" ^ !'• 6** 0^* '^"<^ ^he costs; and the only ob-
act of the jection to the proceeding was, that the alderman's court had no
ture^ *"^*^ '*" jurisdiction in causes above 10/.

The 20/. Before the adoption of the present constitution of Pennsylva-
constitution- "'^ '"^ ^ 7^0-, justices of the peace, by an act passed the 5th April
^>1 1785, 2 St. Laws^ 304. had jurisdiction in cases of debt or de-

mand not exceeding 10/.; but by a law passed the 19th April
1794, 3 St. Lows^ 736. that jurisdiction was increased, in cases
of the same kind, to an amount not exceeding 20/. This law
directed, that if any person should bring suit in other manner
than was provided by the act, and should not recover more
than 20/. he should not have judgment for any costs; at the
same time it provided, that either plaintiff or defendant in a
suit brought before a justice for a demand above 10/. might
before judgment elect to have the cause tried in the common
pleas, the defendant, if he was the party electing, giving secu-
rity in the nature of special bail, or to enter a common appear-
ance, accordingly as the cause originated by capias or sum-
mons; and it entitled either party, even after judgment, if the
amount exceeded 5/. to appeal to the common pleas, upon giv-
ing security to answer costs, to prosecute the appeal with effect,
&c. The same jurisdiction, thus modified, was given to the
alderman's court, which proceeded without the intervention of
ajur}'.

The case turned upon the validity of this law, which was al-
leged to be unconstitutional and void, !)ecause it violated the
6th section of the 9th article of the constitution, which says
" that trial by jury shall be as heretofore, and the right there-
" of remain inviolate."

It was argued at September and Decemher terms 1803, by
M'-Keaii (attorney general), Ingersoll^ and E.Tilghman^ for the
defendant, and by Hophinaon and Rmvle^ for the plaintiff.

OF PENNSYLVANIA. 417

The arguments for the plaintiff, were in substance, 1. That 1808.
this court had no authority to declare an act of the legislature to £mekick
be unconstitutional. That such a power was not expressly given v.
to the judiciary by the constitution; and without it, being at Harris.
most but a coordinate branch of the government, they could
not defeat or control the legislature, by vacating laws, of the
constitutionality of which the one had no better right to judge
than the other. That in fact neither had the right; the people
being the safeguard of the constitution, and holding in their
hands the remedy for all injuries to that compact, in the power
of dismissing bad servants. That if the court took the power
by implication from either their oath of office, or the nature
of their duties, so might the common pleas, the alderman's
court, justices of the peace, and even many executive officers,
until at last there would be no person too illiterate or too hum-
ble to correct the legislature of the state, and to arrest the exe-
cution of the laws. 2. That the law of 19th April 1794 was not
contrary to the constitution. That the legislatiu-e had an ex-
press right bv that instrument, to organize new judicial tribu-
nals; and that so long as the trial by jury was preserved through
an appeal, the preliminary modes of obtaining it might be va-
ried at their will and pleasure. That to deny them this right,
was to prohibit the minutest change in any of the formal pro-
cess and rules by which jury trial was obtained and regulated.
That by this law the trial was open to the parties at their own
election, or by appeal; and it rested with them, whether to re-
main before the magistrate, or to proceed in the old way. That
the only difficulty was about the costs; and that therefore the
question of constitutionality came to this, whether the legis-
lature had a right to abridge, or to abolish costs, in cases where-
in they were recoverable before the constitution was adopted.
That this was almost too plain for argument, and was a matter
upon which a multitude of laws had been made since that time,
without a suggestion of their improprietv. That it was always
a question of policy for the government, and not of right in the
party; some j)arties paying none, others paying double or treble
costs according to the nature of the case; a projjortion some-
times existing between them and the damages recovered,
sometimes not; the whole being an arbitrary system, ol (he
change of which, or even its extinction, no one had a right to
complain.

418 CASES IN THE SUPREME COURT

1 808. 1^0*" ^^ic defendant the arguments were, 1 ■ That the constitu-

TT'JI'Tir^Jt)" was the paramount law of the hind; and that all acts of the
T. legislature which impugned its provisions, were not merely
Harris, voidable, but absolutelyvoid; they wei^ not laws at all, as they
wanted the vital efficacy of a law. That if an act, deriving its
authority from a supposed law, should come before the cpurt,
there could be no doubt of the court's power to defeat the act,
if the law was found not to exist; which was precisely the case
where an act was founded upon a law repugnant to the consti-
tution. That the question was between conflicting laws, one of
which must always stand, and the other give way; and the
whole point was, whether the court, who could execute but one
of the laws, had aright to decide whether there was a conflict,
and which should give way. That it was too plain for debate,
that when there is a paramount law by which the court is at all
events bound, it must have a right to say whether a law, Avhich
has no authority upon them except it conform to the para-
mount law, does or does not conform to it. That the judiciary
owe a duty to the constitution above that which they owe to
the legislature; and where the one says one thing and the
other a contrary thing, they must adhere to the first, which in
eff"ect is deciding against the second. That finally the right of
the court had been repeatedly affirmed by judicial decisions; as
in Vanhome v. Dor ranee («), IlaijburrCs case (/>>), Hijlton v.
The United States (c), and many others in our own state. 2.
That the constitution, by directing that trial by jury should be
as heretofore, and the right thereof remain inviolate, had inter-
dicted the legislature from abolishing or abridging this right in
any case, in which it had existed before the constitution. That
a prohibition to do this directly, was a prohibition to do it in-
directly, cither by deferring the decision of a jury until one,
two, or more previous stages of the cause had been passed, or
by clogging the resort to that tribunal by penalties of any kind,
cither forfeiture of costs, security upon appeal, or delay. That
the power to obstruct at all, implied a power to increase the
obstructions, until the object became unattainable; and that the
instant the enjoyment of the right was to be purchased by sa-
crifices unknown before the constitution, the right was violated,
and ceased to exist as before. That the question was not whe-

(a) 3 Ball 304. (b) 2 Ball. 409. (c) 3 Ball. 175.

OF PENNSYLVANIA. ' 419

ther the legislature had a right to take away costs altogether, 18O8.
but whether they could make the loss of them a penalty ibr de- ^^^^J^Tck^
manding a right secured by the constitution. That all encroach- x,,
ments upon constitutional rights were in the first instance mi- Harris.
Bute; that they increased in magnitude, as the boldness of the
usurping power increased by the acquiescence of the citizen;
and that therefore it was the duty of the judiciary to detect and
resist the usurpation at the outset.

Cur. adv. vult.

On this day the judges delivered their opinions.

Yeates J. On the first question argued in this case, I have
no doubt whatever, that this court is vested with the legitimate
power of deciding on the constitutionality of an act of the legis-
lature. The judicial authority of this state comprehends the
exercise of this right as well on principle as precedent.

The constitution, being the act of the people, and the com-
pact according to which they have agreed with each other that
the government which they have established shall be adminis-
tered, is a law to the government; and a sacred reverence for it
is an indispensable requisite in the character and conduct of
every public agent. 1 Tuck. app. to BUuk. Comm. 29.

It cannot l)e denied that an anxious desire is expressed by the
people in the formation of die constitution of the United Slates^
and of this state, to keep the powers of the legislative, execu-
tive, and judicial departments, distinct and independent of
each other. They are separate and coordinate branches of
the government, and are expressly recognised as such, by a
special enumeration of their respective powers and rights. By
the Gth article of the constitution of the United Stales,^'- the
" senators and representatives in congress, and the members of
*' the several state legislatures, ;md all executive and judicial
" officers both of the United State/ and of the several states, shall
" be bound by oath or aflirmation to support the constitution."
This is further enforced by a law of the United States passed
on the Ist yunc 1789. 1 U. S. Laws 26. By the 8th article of
the constitution of diis state, " members of the general asscm-
" bly, and all officers, executive und Judicial, shall I)e bound by
"oath or affirmation to support the constitution of this com-
•' monwealth, and to perform the duties of their respective
•• ofljf fs with fidelity." On what grounds are these piovisioils

420 CASES IN Till-: SUPREME COURT

1808. made, ui.less, as judge 7'?/C/i6'r observes, the constitution regards

"T the judicial exposition of that instrument, as the bulwark

Lmkkick r . , ...

,, provided against the undue extension ot legislative power?

Harris. 1 Tuck. apl). 288. The judiciary power, far from being an
emanation from the executive, is intended by the American
constitutions as a counterpoise or check to its excesses, and
those of the legislature. 3 Tuck. Black. 24. note 2. See Fede-
ralist^ No. 78.

The 10th section of the 1st article of the constitution
of the United States provides, among other things, that " no
'' state shall pass any bill of attainder, ex post facto law, or law
*' impairing the obligation of contracts;" and the 17th section
of the 9th article of the state constitution expressly directs, that
" no ex post facto law, nor any law impairing contracts shall be
made;" and the 18th section asserts that " no person shall be
attainted of treason or felony by the legislature." Put a strong-
case, which for the honour of human nature we can scarcely
suppose the possibility of: that the legislature should, under
very peculiar circumstances, (as in the case of sir John Fen-
ivicke in England) pass an act of attainder against an obnoxious
citizen for treason, and the attorney general should demand of
the court to award execution. Will it be said that we are com-
pellable to pass such sentence, against the express words, and
plain meaning of both constitutions, and the tenor of our oaths
of office? Would it not be our bounden duty to refuse to pass the
sentence, and to put the party on his trial according to the ordi-
nary course of law, as was done by the judges of the general
court in Virg-inia^ on an Act passed to attaint Josiah Phillips in
May 1778, unless he should render himself to justice within a
limited time? 1 Tuck. Black, app. 293.

The obligation of aii oath imposed upon us to support both
constitutions would be nugatory, if it were dependent upon either
of the other branches of the government, or in any manner sub-
ject to their control; since such control might operate to the
destruction instead of the support of either constitution. Nor
can it escape observation, that to require such an oath on the
partof the judges on the one hand, and yet suppose them bound
by acts of the legislature which may violate the constitution
they have sworn to support, carries with it such a degree of
impiety as well as absurdity, as no man who pays any regard to
the obligations of an oath, can be supposed either to contend for

OF PENNSYLVANIA. 42

or defend. 1 Tuck. Black, append. o5S. My idea of the obliga- 1808.
tions arising from the oath to support the constitutions of th^~F^F.nicK
United States and this state, prescribed breach of those solemn v.
instruments, is plainly this: Whether the party moves in the Harris.
sphere of the legislative^ executive^ or judicial department, he
is bound to maintain and uphold those compacts made with the
people. Possessed of a portion of the lawmaking power, he is
interdicted from exercising his legislative right in such a man-
ner, as may injure or impair the sources from which his autho-
rity is derived. In the executive branch, he shall carefully avoid
every act which may have that injurious tendency. In the ju-
diciarv, he shall fairly and patiently compare legislative acts
v/ith both constitutions, and honestly pronounce upon them as
his judgment and conscience shall dictate, widiout regarding
consequences. A due conformity to the oath of office in a judge,
creates duties beyond those of passive obedience. It requires
the active energies of the mind to determine on the constitu-
tionalitv of those laws, which may be brought before him in
judgment; and in his decisions he shall />r^^fc^ those paramount
laws v hich he has sworn to support.

Every one can readily see that the judges mav be thrown
into a delicate situation by the exercise of this constitutional
right. They are subjected to the lawmaking power by im-
j)eachment, or by removal for causes which do not furnish
ground of impeachment; and may therefore in one sense be
supposed to owe their existence to the lawmaking power. I can
only answer, the constitution of this state contemplates no wilful
perversion of the power of impeacliment or removal; and it is
to be hoped, for the honour of human nature, that such instan-
ces will seldom occur. Whenever it does happen, the judge
must derive consolation from the integrity of his own mind, and
the honest feelings that he has discharged his duty with hdelity
to the government. When he accepted his comniission he
knew the tenure of his office; and it is much l)etter that iiidivi-
fluals should suffer a private inconvenience, than the commu-
nity sustain a public injury. Posterity sooner or later will do
him cf)mj)kte justice.

The power of the judiciary branch to pronounce against the
vnlidity of the laws of the union and of individual states, ib
taken for granted by the act of congress oi Sept. 24th 1789,
.'fee. 25. In certain cases whore is drawn in question the

Vol. I. .1 H

422 CASES IN TIIK SUPREME COUKT

180S. valiiiiti, of a treaty or statute of, or an authority exercised un-
vT,„„ ^ clci"! tl^e United Stutes. and the decision is against their vali-

Jt:.MRRICK ...

T. ditv; or where is drawn in (lucstion the validity of a atatitte of,
IIarkis. or an authoritv exercised under, wny state., on the g' round of
their heirtg repugnant to the constitution., treaties, or hiws of the
United Stateft., and the decision is in favour of such their valt-
ditv; or wliere is drawn in question the construction of an\
clause of the constitution, or of a treaty, or statute of, or com-
mission held under the United States^ and the decision is
against the title, right, privilege, or exemption, specially set up
or claimed by either party under such clause of the said consti-
tution, treaty, statute, or commission, the final judgment or de-
cree in any suit in the highest court of law or equity of a state,
may be reexamined and reversed or affirmed in the supreme
court of the United States., upon a writ of error. 1 U. S'.
Laws 64.

On this point there is no dearth of precedents, either in the
courts of tile union, or of our own btate. In the case of the
Invalid pensions, the judges of the supreme court of the
Ujiited States in 1791 refused to execute an act of congress.
2Dall. 410. 1 Tuck. BUick. app. 5. \\\ Hxjlton, plaintiff in error ^
V. The United States., the sole point in question was the consti-
tutionalitv of the law of congress passed June 5th 1794, laying
a duty on carriages for the conveyance of persons. 3 Dall.
171. In Vanhorne'^s lessee v. Dor ranee, Judge Patterson deter-
mined the confirming act of Pennsylvania of 28th March 1787
to be unconstitutional and void. 2 Dall. 304. In the courts of
this state, \v\Austin\s Lessee v. The Trustees of the University oj
Pennsylvania., a law of this state passed on the 6th August
1784 was adjudged to be unconstitutional, in April term 1793.
In Re.spublica v. Cobbctt^ December term 1798, Kespiiblicay. Du-
puet, December term 1799, on a case stated respecting the
wooden buildings in the city, the constitutionality of certain
laws was fully argued; and in Rcspuhlica v. Franklin and
y^w/^in*, the constitutionality of the intrusion Act of the 11th
April 1795 was debated at great length, both in the circuit
court, and here in December term 1802. Indeed until lately
there was but one opinion on this subject; it being uniformly
conceded by the bar, and held by the bench, that the courts of
justice must necessarily possess and exercise the power of
judging of the constitutionality of all laws, brought before

OF PENNSYLVANIA. 423

them jiiditially. At the same time I readily admit that the ju- 1808.
dicial authority ought not to dechire a law to be unconstitu- I^ie^jck
tional, unless in cases perfectly plain and clear. It cannot be -u,
denied that the entertaining an argument on the constitution- Harhis.
ality of a legislative act by the judiciary, implies necessarily in
itself a power to judge and determine on its validity, on a fair
comparison of it with the powers granted to the former branch
of the government, by a solemn act of the people, sanctioned
by the oaths of those who are delegated to act in the three
branches.

The opinion of the supreme court of the United States be-
tween Marbunj v. Madison^ on the motion for a rule on the
secretar)' of state of the United States to shew cause why u
mandamus should not issue, commanding him to cause to be
delivered to the plaintiff his commission as justice ofthe peace in
thedistrictofC(5^^«zZ'/«, has been published in 1 Cran. 137. since
I drew up this opinion. The act to establish the judicial
courts of the United States^ authorized the supreme court "to
*' issue writs of mandamus, in cases warranted by the principles
'' and usages of law, to any courts appointed, or persons holding
" office^ under the authority of the United States^ 1 U. S.
Imxvs 58. sec. 13. The court adjudged that this was a plain
case for a mandamus either to deliver the commission or a
copv of it from the record. 1 Cran. 173. But the power of the
supreme court being limited by the constitution, in point of
origihal jurisdiction, " to cases affecting ambassadors, other
" public ministers and consuls, and those in which a state
*' shall be a party," it was adjudged that the clause in the act of
congress v/as unconstitutional, and could not be execvited by
the supreme court. The chief justice has demonstrated that
" courts as well as other departments are bound by the consti-
" tution, and that the essential principle of all written constitu-
" tions is that a law repugnant to that instrument is void."
p. 180. " It is emphatically the pr(A'inct; and duty f)f the judi-
'* cial department to say what the law is. Those who apply the
" rule to particular cases, mustof necessity expoimd and inter-
" pret that rule. If two laws conflict with each other, the court?^
" must decide on the operation of each." p. 177. I feel that I
should be guilty of injustice to the elaborate argument of the
chief justice, were I to quote detached parts of his system of
reasoning on this subjert. I have no hesitation in saying for

424 CASES IN«THE SUPREME COURT

1808. myself, that his observations have strengthened and confirmed
~Kl.r~.~, ^l^c sentiments I have ever entertained of the indispensable ob-

C.MEHleK "^

T. lipjation of written constitutions upon judiciary characters. See
Harhis. 1 jyi/s.460.

When the con\cntion declare in the 5ih section of the bill
of rights, that "'trials bv jury shall be os heretofore, and the
" right thereof shall remain inviolate," I do not conceive that
any restriction is thereby laid on the legislative authority, as to
erecting or organizing new judicial tribunals in such manner
as may be most conducive to the general weal, on a change of
circumstances eflVcted by a variety of causes. This appears plain
to me from the 5th article of the constitution, which vests the ju-
dicial power of the state " in a supreme court, courts of oyer and
" terminer, and sessions of general gaol delivery, common pleas,
" orphan's court, register's court, sessions of the peace, justices
" of the peace, and in .s-uch other court.'i as the legislature may
" from time to time establish." But it is equally obvious to my
understanding, that the legislature cannotconstitutionally impose
any provisions substantially restrictive of the right of trial by
jury. They may give existence to new forums; they may mo-
dify the powers and jurisdiction of former courts, in such in-
stances as are not interdicted by the constitution from which
their legitimate powers are derived. Still, the sacred inherent
right of every citizen, atrial by jury, must be preserved. '■'■It
shall remain inviolate, as heretofore."

When the present state constitution was formed, the 10/. act
which passed on the 5th April 1785 was in full force, and must
be presumed to have been in the contemplation of the conven-
tion, who by the words " as heretofore" virtually confirmed it.
The law now in question was enacted at a subsequent period on
the 19th April 1794; and is therefore subject to legal discus-
sion. It extended the jurisdiction of justices of the peace to 20/.
With the wisdom, sound policy, or expedience of that law, this
court have nothing to do. These are matters purely of legisla-
tive dehberation and cognisance. I cannot avoid lamenting that
the original jurisdiction of suits embraced bj' the act is exclu-
sively assigned to a single justice, and only an appellate juris-
diction reserved to a jury. But it must be admitted that the right
of trial by jury is not taken away, though the party may be
subjected to some inconvenience in making his election. The
law therefore appears to me not to be thsit plain and clear casCy

OF PENNSYLVANIA. 425

in which I should feel myself authorized to pronounce on its in- ^80 8.

validity, as a deviation from the constitution; and therefore I Emerick
find myself bound to give judgment for the plaintiff.

Hakris.

Smith J. concurred.

Brackenridge J. began by saying that the case involved
two questions, 1. Whether this court had authority to decide
upon the unconstitutionality of an act of assembly; and 2. Whe-
ther the particular law in question was against the constitution.
He said that the first was a vexata qucest'to^ very delicate and em-
barrassing in its nature; that he had made out his observations
at a considerable length, in which the difficulties of the ques-
tion were stated; but that at present he did not think it neces-
sar)' to read them. He then proceeded upon the second ques-
tion as follows:

Assuming it as a principle, that a case may occur where it
may be the duty of the judiciary to pronounce upon an act of
the legislature as contrary to the constitution, and where they
may be called upon, as in the present instance, to arrest the
execution of it, we come to inquire whether the act in question
is of that nature.

By the constitution, art. 10. sect. 1., " the judicial power of
" this commonwealth shall be vested in a supreme court, in
*' courts of oyer and terminer and general gaol delivery, in u
" court of common pleas, orphan's court, register's court, and
** a court of quarter sessions of the peace for each county, /'//
*^ justices of t/ic /)caci\ and in such other courts as the Icjris-
" lature may from time to time establish." From a specifica-
tion of the different tribunals, it would seem to be inferible,
that the distribution of the jurisdiction shall Ije according to
the nature of the forum. That of justices of the peace did not
originally extend to civil cases. But by an early act of the legis-
lature of the province, in the year 1700, civil jurisdiction was
given under the title of " An act for determining debts under
-tO.v." This act continuing five years was repealed, but supplied
in 1715. I'Vom the jurisdiction of the justices, under this act,
was excepted " debts for rents, or contracts for real estates."
By an act of Marcli 1st 1745 the jurisdiction was extended to
'* actions for debt, or other demand for the value of 40a-. and
" upwards, and not exceeding 5/." with an appeal under certain

426 CASES IM THE SUPREME COURT

1808. regulations to the court of common pleas. This appeal has
"j^iPRic^bcen construed to extend only to demands above 40,v. Un-
T'. dcr this act there is an exception " of debt for rent, debt
Hahhis. upon bond for performance of covenants, actions of reple-
vin, or u|X)n any real contract, actions of trespass on the
case for trover and conversion or slander, actions of trespass
for assault and battery or imprisonment, actions where the
title of lands shall anywise come in question. "

Such was the jurisdiction exercised at the framing of the con-
stitution under the commonwealth in 1776; in which constitu-
tion, there is nothing that has a direct reference to the powers
of the justices of the peace, or from which we can collect, that
the jurisdiction which has been given by these acts of assem-
bly, and exercised under the province, was provided against;
imless it be in that article of the declaration of rights, " that in
'' controversies respecting property, and in suits between man
*' and man, the parties have a right to trial by jury, which ought
"■ to be held sacred;" or in that clause of the constitution " trials
" shall be by jury as heretofore." Under this constitution, by
an act of the legislature, Jan. 28th, 1777, entitled " an act
" to revive and put in force such and so much of the late laws
" of the ^jrovince as is judged necessary to be in force in this
" commonwealth," we find no exception of those laws giving
jurisdiction to the justices of the peace in controversies respect-
'ng property, and in suits between man and man; whence
it is inferible, either that the legislature did not attend to the
nature of these laws, giving jurisdiction to the justices " in
*' suits between man and man;" or that they did not consider
them as inconsistent with the provisions of the constitution.
These provisions are the same, in substance, with those of the
charter of liberties granted by William Penn to the first settlers
of the province, in which it is declared " that all trials shall be
*' by twelve men, and, as near as may be, peers, or equals, and
" of the neighbourhood, and without just exception;" the laws
agreed upon in England in 1682. And yet in the face of this
provision, jurisdiction to the justices in civil matters had been
originally given, and continued.

Under the constitution of the commonwealth, by an act
of the 23d September 1784, supplied by an act of the 5th April
1 785, the jurisdiction of the justices in civil matters was exten-
ded to debts and demands not exceeding 10/.; subject to like

OF PENNSYLVANIA. 427

appeals, and under similar regulations, restrictions, and excep- 1808.
tions as in the preceding act of March 1745. Emerick

The framers of the present constitution had these acts before v.
them, and the exercise of this jurisdiction within their know- Harris.
ledge; and yet we find no direct exclusion of this jurisdiction,
and nothing more than what may be collected from the like
words with those before used: " trials shall be by jury as here-
"•' tofore." For it would not seem that the variation in the
words " trials shall be by jury as heretofore," as in the con-
stitution of 1776, and "trials by jury shall be as heretofore,"
as in the constitution of 1790, would warrant the conclusion
that a change of meaning was intended; or that any exclusion
can be drawn from the one expression more than the oth^r,
with a reference to the jurisdiction of the justices.

It is under this constitution (1790) that we come to the act
before us, oi April 1794, by which the jurisdiction is extended
to 20/., subject to an appeal in matters above 5/.; and with ex-
ceptions as in the act preceding. The most material particular
in this act, is the taking awav the appeal in a demand above
40*., and not exceeding 31.

By an act of the 23d September 1784, extending the juris-
diction of the justices of the peace to actions of debt or de-
mand of the value of 5/. and not exceeding 10/., as in the case
of debts of the value of 40*-. and not exceeding 5/., an appeal
was excluded. 1 his by an act of the 5th April 1785 was re-
pealed, with a preamble, "that whereas the act entitled, &c.
" in not allowing trial by jury in suits or actions for debts, and
" other demands, cognisable under the same by one justice of
" the peace, is- contrari^ to the spirit of the constitution of this
" statCy'' &c. It might be said on the same ground, that the
taking away the appeal in the act before us in demands above
40.V. and not exceeding 5/., in which case it was before allowed,
is contrary to the spirit of ilic constitution.

It is of less moment that under this act the jurisdiction oi
the justices is extended to a demand of 20/.; yet it may be said
to be " contrary to the spirit of the constitution." For though
an appeal is saved in debt or demand above 5/., yet there is iu
the first instance a privation ol tlie trial by jury. It is true there
is weight in the consideration exj)rcsscd in the preamble of the
act, " tlie lessening in the value of money." But it cannot be
in the spirit of the constitution, but contrary ta it, to extend the

428 CASES IN THE SUPREME COURT

1808. jurisdiction of the justices of the peace, ad libitum, and to any
Emeuick '^^^^'"^ *"^'^" allowing the appeal. Yet it is one thing to be con-
r, trar)- to the spirit of the constitution, and another thing to be
Hakris. in direct violation of it. " Trial by jury shall be as heretofore."
But trial by jury heretofore^ had not been known in the forum
of the justice. And it could not be with a view to secure the
jury trial in this forum, that the provision was introduced. It
must have been to secure the trial in the courts where it had
existed; or to secure it in those courts which " the legislature
" may from time to time establish." But in the distribution of
judicial power to the justices of the peace where the trial by
jury does not exist, what is given more to the cognisance of
the justice, is making less the jurisdiction of the courts where
the jury trial does exist; and is indirectly taking away the
trial by jury from the subject of the jurisdiction given to the
justice. Yet this is but an indirect invasion; and the difficulty is
to say where it may begin to be an invasion, unless it is assumed
as a principle that it cannot be extended beyond what it was at
the time of framing the constitution; and this, taking into view
the history and progress of the jurisdiction, would seem to be
assuming more than is justifiable. If then we are not arrested
at the precise point where the matter stood at the framing of
the constitution, with respect to an enlargement of the jurisdic-
tion of the justice of the peace, how far shall we go? Where
shall we stop? Is it competent to the judiciary to fix this point?
Is it not in the nature of it, a matter of discretion, a question of
expediency? And must it not be left to the legislature? What
might be done in an extreme case which might be imagined,
an accumulation of jurisdiction in a justice of the peace far
beyond any thing like what had before existed, it is not neces-
sary to say; for the present would not appear to me to be such
a case, nor can it warrant the judiciary to exercise an act of such
paramount and delicate authority as to interfere. My opinion
therefore must be for the plaintiff in the suit before the justice.
It will be observed that I have confined myself to the act
giving jurisdiction to the justice of the peace in demands not
exceeding 20/., under which the jurisdiction in the case before
us arises; and which act, being of the 19th April 1794, is an
extension of the act of March 1745, and subject to, and under
every regulation, restriction and exception in that act. The
exceptions in that act with respect to the subject of contro-

OF PENNSYLVANIA. 429

versy, debt for rent, debt upon bonds for performance of cove- 1808.
nant, actions of covenant, replevin, &c. have been stated, and Emerick
the jurisdiction in the act in question being sabject to the like t.
exceptions, it has not come in my way, in considering the case "ARRis.
before us, to take notice of what might be the question in a case
where the subject of jurisdiction was enlarged as to the cause
of action, as well as to the quantum of the demand; or as to
the cause of action itself. I take it to be of more moment that
the jurisdiction be confined as to the subject of controversy,
than as to the quantum of demand, or at least as much; for the
principle of law, which may come in view and be disposed of
by the justice, may be of as much consequence as the value of
the property. I should feel myself under more difficulty to re-
concile the enlarging the jurisdiction as to cause of action,
than as to quantum of demand. But there is nothing in the
act before us which goes beyoud debt, or contract, or actions not
excepted in the act of March 1745.

TiLGHMAN C. J. gave no opinion, not having been upon the
bench when the cause was argued. But he said he had under-
stood from the late chief justice Shippen, that he agreed with
the other members of the court.

Judgment affirmed.

Rous SET against The Insurance Company of North ^.^j^^^^^^^
4«»i*73 America. Dcccnibci-

.*L_i«5 2411i.

ASK for the opinion of the court, in substance as fol-xiicas-
lows: siKiiicofa

The defendants, on the 28th 'Januarij 1799, underwrote a,Msiiniiice
policy of insurance in the name of ^t/z/V/wjin iVo;je*, for 4000^'^'^^"*'^''!*'''*

to nil (Icf'll"

dollars, on the brig Charlotte^ at and from Philadvlphha to ^r//-cutiniis.to

minpton. N. (!.. and at and from thence to Marthuqur. At the"'''^''' " ^^^'
• f /r • I • XT L -siiLjcclbe-

time oi effcctmg the nisurance, JVonex was the true owner ot f,„-t; the as-

thc 6'/jar/o//^, and she was duly registered in his name. He '*'^'"'"'*"':
continued to own her until the 28tli November 1799, when he hy the as-
sold her to the plaiiiliir. On that day he executed a bill of sale "'^T'"' ^''^

of the brig, and delivered into the hands of the plainiilV the nuiy set olla

debt due by
the assifjnor at the time ofontTtinp tlic policy, llioiip!) it be an open policy, andthccluim
fur a f>artial\osfi.

Vol.. [. .3 I

430 CASES IN THE SUPREME COURT

1808. J^bove policy of insurance, as his own, and for his own use and
■benefit; and on the 21st yanuari/ 1800, the policy was formal-
ly assigned by indorsement. In the month of March 1799 the

ROUSSET

Ins. Co. brig sailed upon the voyage insured, and during the prosecu-
N. A. tion of it suffered damage from stress of weather, which was
repaired in the JFe.'tf Indies during the winter of 1800, and to
recover for which this action was brought ; but at the time of
effecting the policy, and ever since, Nones was indebted to the
defendants for premiums on insurance made by them for him
on other vessels and cargoes, and on the same vessel for a for-
mer voyage ; and he was insolvent at the time he sold the ves-
sel, and at the commencement of this suit. The question for
the court was, whether the defendants had a right to set off,
against the plaintiff's demand for a partial loss, so much of the
debt due to them by Noiies^ as was equal thereto. If they had,
judgment to be entered for the defendants; if not, judgment
for the plaintiff.

Upon breaking the case, the court intimated an opinion that

the precise point had been determined by this court in the case

of Gourdon against the same defendants, tried at bar in March

» 1802, {a) and the set-off sustained. They therefore requested

(a) Gourdon- for the use of his Assignees -d. The Insurance Company of
North America. Tiuo actions.

These were two actions of covenant on two policies of insui-ance, dated"
18th oi April 1797, the one on the .schooner Felicity, valued at 5,000 dol-
lars, the other on her cargo, valued at 20,000 dollars, at and from Philadelphia
to Leogane, and at and from thence back. The defendants pleaded cove-
nants performed, with leave, and a set-off.

The causes were tried together at bar in March term 1802, when the fol-
lowing facts appeared i;^ evidence. On the 23d May 1797 the schooner was
captured on her homeward voyage, carried into Port au Prince, where the
cargo was condemned, and the schooner acquitted; but after her acquittal,
she was surveyed, found incapable of proceeding, and sold ; and the net
proceeds of sale amounted to thirty-four dollars only. An abandonment in
both cases was admitted.

On the 19th April 1797, Gourdon assigned the two policies, the schooner,
and her outward cargo, with invoices and bills of lading, to Pratt and Kint-
zir.g, to secure a debt; and on the lotli May 1797, he assigned all his sur-
plus propert) to a committee of his creditors for their use rateably.

On the 7th of ^uly 1798 Pratt and Kintzing, having received their demand
due from Gourdon, assigned the policies to the assignees of the creditors, for
whose use tlie action was brought.

The defendants claimed a defalcation of seven protested notes given by
Gourdon, previous to the assignment to Pratt and Kintzing, amounting to

OF PENNSYLVANIA. 431

the plaintiff's counsel to look into it, and see whether he could 1808.
raise a distinction. Rousset

Levy for the plaintiff, at a subsequent day said, that he had Ins. Co.
examined a manuscript report of the case referred to, in the JN. A.
possession of Mr. Justice Teates^ and agieed the main point
of the case to be well decided, namely, that the insurers might
defalcate against the general assignees of an insolvent debtor;
but that was not the present case, and therefore he thought it
proper for an argument.

He contended that a policy of insurance, being made for
whom it doth, may, or shall concern, being assignable in its
nature and terms, an appendage to the ownership of the pro-
perty insured, and inseparably attached to it, was not liable to
a set-off in the hands of a honajide assignee for a valuable con-

15,125 dollars, but payable after the subscription of the policies, to wit, in
"June and October 1797; a further sum of 1,475 dollars 50 cents on two charges
of premiums for insurance made the 22d April zwd 11th May 1797, with a
credit of three moiitlis, and of 2,800 dollars paid to Pratt and Kintzing on the
27th March 1798, upon the policies in question; and 9,300 dollars paid to the
United States for duties due from Gourdon, on the 3d December following. The
actions were entered on the 24th December 1798 to December term.

Pratt deposed to the copy of a letter from his letter book, dated 4th May
1797, wherein he pave notice to the company of G<iurdon\- assignment of the
policies to the firm; and to his belief, that the original was given to one
of his clerks the next day to be delivered. But the secretary of the company
swore that no such letter had been received. The company denied that they
had received any notice of the assignment of tiie 15th May 1797; and on
11th December 1797 Gourdon applied in his own name for j)aymcnt of the
loss.

About the lOlh A/ay 1797, Giiurdon\ creditors hud a meeting, when tlu-
secretary ol' the company attended; but it did not appear whether he had
given notice to the creditors of any claims for Guurdons notes, or for pre-
miums wjiich had not then become due

On the 7th November 1797, the company received notice of the loss by tlie
captain's protest being shewn to tlicir secretary; and on the 16th November
a formal abandonment and cession were executed by Gourdon, and Pratt and
Kintzing, but no evidence was given to shew when it was oflered to the de-
fendants.

It was agreed upon the trial that the jury slioidd ascertuiii how far the
defendants were entitled to a defalcation; and that the balance should be li-
quidated by reference.

Dallas and Rawle argued for the plaintiff, that no set-off was to be allow-
ed against a policy of insurance, which was assignable like a bill of lading;
and they cited to this point 1 D. iT* K. 2G. ^ D iSf K. .142. 2 Valin. 45. Skinn

N. A.

432 CASES IN THE SUPREME COURT

1808. sidcration. It is essential to commerce, that this instrument
"Rousset should pass freely from hand to hand. Common law rules are
V. not applied with strictness to documents of this descrip-
Ins. Co. tion, as appears by the strong case of Feimer v. Clears; {a)
they would clog thtm, and reuder them useless; and it is only
upon a strict common law principle that the sct-offcan be sup-
ported. Policies have always been assignable. They are not a
common law chose in action. Though executed in the name of
one person, they may be, and most commonly are recovered in
the name of another. Cunninghaffi^ 176. 178. Spencer v. Fran-
cOy Id. 276. [C. J. TiLGHMAN. That is, when the plaintiff is the
original cestui que trust.] In Masters v. Miller (^), Buller J.

(a) 2 W. Blach. 1269. {b) A D Isf E 342.

54. That no set-ofTat all events could po beyond what was expressed in the
policy, wliicij excluded all others. Tlip.t the silence of the company on the
10th May, had lulled the creditors of Gourdon, and prevented them from
makinc: other insurance, which they might have done. Park, 320 1 Burr.
492. 496. They admitted that the payment to Pratt and Kintzing, and the
duties, must be allowed, but not the notes due subsequent to the assignment;
for to justify set-off" there must be a connexion between the demands, and
they must be in the same right; Ambl. 407.; and nothing can be set off
against an assignee, which is not due at the time of the assignment. 1 Dull-
28. 443. 3 Z) ijf E.\^&.

Moylan, IngerscU, and Tilghman, contra, contended it was enough if the
notes had come to matinity before action brought. That the rights were
the same between the company and assignees, as between the original par-
ties Doug 614. 1 Dull. 23. 7 D.iSf E. 663. That a set-off was allowed even
against notes of hand, until the act of 27th February 1797; and policies were
never as negotiable as they. That our defalcation act was more comprehen-
sive than the British statutes. That a policy of insurance was not assignable
at law, but merely in equity; and that therefore no assignment could extin-
guish the equity of the company to set off their demands against the instru-
ment, in whose hands soever it might be. That the words in the policy were
designed merely to authorize a set-off" of premium, due after action brought;
and that, except in this particular, the company might do as much without
them, as with them: the argument on the other side went to prove that if
they had lent Gourdon money, they could not defalcate it even against himself-

Shippen C J. delivered the following charge to the jury.

The insurances, loss, and abandonment have been admitted, though the
time when the latter was offered to the company has not been fixed. The
notice of the assignments appears to be material in no other point of view in
this case, than from the inferences deduced from thence that the defend-
ants, were accessory to the loss sustained by the creditors of Gourdon. If the
niits had been brought by him for his own use, the set-off" would clearly ob-

OF PENNSYLVANIA 433

in his very able argument, says, that the objection, that the as- 1808.
signee of a chose in action cannot maintain an action in his „
own name, has never prevailed in a mercantile case; and " in -u.
" the two instances most universally in use, it undoubtedly Ins. Co.
" does not hold, that is, in cases of bills of exchange, and po- ^"
" licies of insurance." Bills are assignable by the custom of
merchants, so are policies of insurance; in each case the hold-
er or assignee may recover in his own name. The absolute pro-
perty of the instrument is in him; and therefore any equity as
between the underwriter and the name in the policy is out of

tain agjainst him, and operate as a payment pro tanto, because the counter-
demand had actually become due before tl>e actions were instituted; and if
the insurance company have duly and fairly made their claim known, tlieir
ripht of set-off continues against the assignees. Mr. Pratt in his deposition
takes notice of the notes payable to the company, and says they had not be-
come due at the time of the assignment; but how could he have known
of them, unless he had received notice thereof from the defendants ? and
would he not thus be apprised and put on his guard?

The law on the subject may be ascertained without much difficultv. The
difficulty, if any, will depend on the facts disclosed in evidence. To as_ertain
0" law, it will be proper to premise some considerations relating to nego-
tiable paper, and what instruments come under that denomination.

Bills of exchange, and notes payable to order in the city of Philadelphia,
are properly negotiable paper, after such notes have been indorsed bona fide
in the course of trade. The effect is that the holder may sue in his own
name, and may recover the money from the drawer without any embarrass-
ment whatever on account of any counter demands, or want of consideration
as between the drawer or maker and the payee.

Bonds may be assigned by our law so as to enable the assignee to bring
an action on them in his own name, but without the other qualities of nego-
tiable paper; that is, if the obligor had before the assignment any just de-
mand against the obligee, which he could have set off against him if there
had been no assignment, he may set off" the same against the assignee, who
takes the bond subject to all the equity that it was subject to before tiio
assignment This rule is however subject to one qualification. If the as-
signee, when Ik- is about to take the assignment, calls upon the obligor to
know whether the wliole money is due, and the obligor tells him it is a good
bond, but is entirely silent as to any claim of his against the bond, he can
never after open his moutii against the demand of the assignee.

A policy of instirance is not assignable in its nature; but it is assign:il)Ie
in equity. It is not like a bill of lading, which is assignable in its nature, iiTul
the assignment of which vests the absolute property in tlic goods assigned
in the .assignee. i\ pfjiicy of insurance, in its (jualities, resembles a bond for
payment of money at a future day, more than any other instrument. Tlicy
arc both chotet in action. It is only by a particular act of assembly that the
assignee may bring the action in his own name, if the assignment be scaled
and delivered in the presence of two subscribing witnesses; but th** law docs

434 CASES IN THK SUPREME COURT

1808. the (luestion. Such is the universal mercantile usage. In France

RoussET ^ policy is negotiable to order or bearer like a bill, 2 Valin 45.;

X'. and the ordinances and usages of France have often received

V \ great attention from this court, upon questions of the law

merchant.

The circumstance, that the policy is inseparably attached to
the property, has great weight from analogy to the common
law cases of covenants running with the land. In these, and in
all other real covenants, the assignee may sue in his own name.
But the defendants ha\-e no equity. The policy authorizes
certain defalcations, as the premium of the particular insurance,
and the two per cent, abatement ; all others are therefore ex-
cluded. Expressiim facit cessare taciturn. They should have
retained the policy until the premiums were paid. They have
enabled Nones to impose upon the plaintiff, and have lulled him
into a false security, by which they should lose, and not he.
GourdoiUs case is very distinguishable from this. His as-
I signees, like assignees of bankrupt^ stood precisely in his place,

and they in fact sued in his name. The equity which the de-
fendants had against him, they therefore had against his as-
signees, according to Bosvill v. Brander (a) and Taylor v.

(a) I P. Wms. 459.

not prevent the obligor from showing' a want of consideration, or setting off
any counter demand against the obligee.

1 have before mentioned tliat it is incumbent on the assignee of a bond to
call upon the obligor, to know tlie quantum of the debt due. I take it to be
likewise incvmibcnt on the assignee of a policy to call upon the underwriter
and inform him before any account of a loss, and to inquire if he has any
thing to set off against the policy. If tlie underwriter has this notice, and
either makes no objection and claim, or is totally silent as to any claim, I
.should consider the assignee of the policy in the same condition, as the as-
signee of a bond under like circumstances; and tliat both are entitled to re-
cover notwithstanding the underwriter in the policy, or the obligor in the
bond, should afterwards discover that he had a counter demand; and that
their mouths are stop])ed by their acquiescence or silence; otherwise in
both cases it would lead to a deception.

The chief question then in this case is a question of fact, whether there
was any notice given to the insurance company of the assignment; and whe-
ther they either by acts, words, or silence, waived giving any intimation of
their demands against the assured. We will only add that the underwriters
are acquitted, unless the plaintiff or his creditors have suffered by their de-
fault in not letting their claims be known.

The jury fovmd for the jjlaintiff, but that the defendants were entitled to
the defalcation.

OF PENNSYLVANIA. 4351

Wheeler (a). But here we have paid a valuable consideration. 1 808.
Gourdon's was also a valued policy, and the claim, lor a total Rqusset
loss; this is an open policy, and the claim for a partial loss; and it v.
is clear by the law of England^ which seems by the case oiGor- Ins. Co.
don V. Boivne (b) to be also the law of New York, that a set-off
is not maintainable in such a case. I however do not mean to
press this point, as our act of defalcation goes further than the
English statutes.

Hopkinson and Ing-ersoll, who were to have argued for the
defendants, were stopped bv the court.

TiLGHMAN C. J. This cause comes before us on a case sta-
ted. Benjamin Nones had an insurance effected on the brig
Charlotte. He afterwards assigned the policy to the plaintiff,
and then became insolvent. There was a partial loss, concern-
ing which there is no dispute. The only question is whether
the defendants can set off against the plaintiff, a debt due from
Nones at the time the policy was underwritten.

The court thought it unnecessary to hear the counsel for the
defendants; because they considered this point as having been
settled in the case of Gourdon (for the use of his assignees)
against The Insurance Company of North America^ tried in
bank at March term 1802. The charge of chief justice Shippcn,
delivered with the approbation of all the judges, established u
principle decisive of the question now before us: that is to say,
that a policy of assurance was to be considered as other chases
in action^ which are not assignable by the common law, but on-
ly in equity; and consequently the assignee takes it liable to all
defalcations to which it was subject before the assignment.
That case was fully argued. I have read judge Teates^s manu-
script note of it, and find that the arguments urged by Mr.
Levy in this case, were then brought forward by the counsel
for Gourdon\s- assignees. Upon the authority of that case, thcre-
forf, the court are now of opinion that tlie defendants are en-
titled to the set-off for wliich they contend.

Smitif J. I am of opinion that the defendants are entitled to
the set-off claimed, under the practice between the assured and

(«) 2 Vern. 561-. (^) 2 Johmon, 150

436 CASES IN THE SUPREME COURT

1808. ^e underwriters in the city of Philadelphia. I do not need the

RoussET *^^ of the decision in GourdorCs case to warrant this opinion; it

^. is founded on the common course of mercantile transactions.
Ins. Co.

N. A. Per Curiam, Judgment for defendants.

PiGOTT CP-c/w.?/ HoLLOVVAY. jo 4.,^.

Saturday, ^ 6s, j^i

December "srajj

24th. In Error. ^J sis;

-A joint com- T~^ RROR to the common pleas of Montg-omeru. Holloxvauy

mission issu- P. li--a-ii i i_-7i-

ed to Lon- "^ the plamtiit below, brought indebitatus assumpsit upon a

^T' k"j, judgment entered by warrant of attorney against Pigott in the

plaintift'na- common pleas oiWestmtnster . Ajointcommission issued to Zow-

anedcom- ^Qy^ for theexamination of witnesses; with which the plaintiff sent
anissioncrs . . i 1 -i • . • 1 1 •

-whose pro- mterrogatones to be exhibited to witnesses produced on his own

fession and behalf, and Other interrogatories for the witnesses that mieht be

particular 1 1 ir r 1 1 r 1

residence he produced on behalf of the defendant; and he named as his com-

"h^ Tf ''j*^ missioners Samuel Marshall^ of Serjeant'' s Inn^ Fleet-street^ in

ant named the City o( LoTidon^ Serjeant at law, and Vitruvius Lawes^ of

^\^^ ,, Red Lionsan^Lxe. in the county of Middlesex^ barrister at law. The

iind CD. r 1 • •

"of Lon- defendant sentinterrogatoriestobe administered to the witnesses

",^®".* , ^ produced on his own behalf, and named as his commissioners,

plaintin s ' . ' '

commission- Robert Thomas esquire, and Mr. Joseph Robinson^ both of the

ers caused ^.jj q£ London. The commission, which was forwarded in "^une
inquiries to -^ ' . -^

he made ov July 1805, was executed in January 1806 by the plaintiff's

lor the commissioners only; who certified that, having caused due in-

commission- , . ■' to

ersoftlie quiries to be made after the residences of A'o^erf Thomas 2Lnd.

defendant, ^Q^eph Robinson, named with them for executing the commis-
and no sucJi J ^ ^ o

persons be-
in^ found,
they executed the commission ex parte. Held that the commission was well executed.

Interrogatories, which are directed to be put to the witnesses on behalf of one party,
need not be put to the witnesses of tlie other.

A subscribing' witness to a waiTant of attorney swore, that from his minutes h» found
he was present at a certain place on a c<;rtain day, being- the day the warrant bore date,
and that upon reference to the warrant he found liis name in his own handwTiting as an
attesting witness, and that the seal appeared to have been taken from an engraving he
then and still had; and from all these circumstances he luas convinced that he was present,
and -uhncsied the execution of the instrument. This is sufficient proof of the warrant to go to
thejuiy.

OF PENNSYLVANIA. 457

sion, in order to give them notice thereof, and it appearing to 1 808.
them that no such persons were to be found, they had proceeded Pj^ott
to the execution of the commission ex parte. They also attach- v.
ed to the commission the affidavit of Faithful Croft^ sworn be- Ho'.lo-
fore A. Chambre at his chambers in Sergeant's Inn^ London^
stating that in pursuance of instructions from the plaintiff's
commissioners, he had diligently made inquiries to learn the
residences of Messrs. Thomas Vind. Robinson^ on l\v^ American
walk in the Royal Exchange^ at the houses of several American
merchants, at the New York and Carolina coffeehouses, and at
the general postofficc; and not being able to gain any intelli-
gence of them, he left the outside cover of the commission
containing a direction to all the commissioners, with a clerk at
the postoffice, and requested him to inquire for them of all the
postmen and lettercarriers, for the city of London and its vi-
cinity; and that he was afterwards informed by the clerk, whom
he believed, that he had called out their names two days in
succession to all the lettercarriers; but their residence was to-
tally unknown to them.

No witnesses were produced on behalf of the defendant; and
the plaintiff's witnesses were examined only upon the plaintiff's
interrogatories.

Annexed to the commission was a warrant of attorney
dated 23d May in the 35th oi George od, purporting to be signed
by the defendant, and to be witnessed by H. Martclli^ who, in
answer to one of the plaintiff's interrogatories, swore that upon
reference to his minutes, he found he was present at the London
tavern in Bishopsgate street in the city oi London^ on Saturday
the 23d dav of 3Iay 1795; and upon reference to the warrant of
attorney signed Edxvard Pigott^ purporting to be a warrant of
attorney from Edivurd Pigott of Twyford in the county of Berks ^
esquire, to the plaintiff, for securing the sum of 554/. and inte-
rest, there not appearing to have been any bond, he found his
name in his oxvn handivriti/ig subscribed (hereto as the attesting
iritness to its execution; and that the defeasance* to such warrant
of attorney was all in his handwriting, and the iihpression of
the seal appeared to have been taken from a?i engraving he then
and still had; and from all these circumstances he was convinced
that he was present and witnessed the execution of such instrU'
I'lcnt^ to which there was no other subscribing"; witness.

Vol . \. \ K

438 CASES IN Till: SUPREME COURT

1808. Upon the trial below, the depositions and answers under the

Pigott" commission were offered in evidence, generally, by the plain-

X,. tiff; and they were objected to by the defendant, because they

HoLi.o- were taken ex parte, and because the defendant's interrogato-

WAV. j.i(.g j^.^j j^^j. \y^^y^ pm J.Q ti^j. plaintiff's witnesses. But the court

overruled both objections. The plaintiff then offered to read
the warrant of attorney; to which the defendant objected, be-
cause the execution of it was not sufficiently proved by Mar-
tcUVs deposition. But the court suffered the warrant to go to
the jury; and sealed a bill of exceptions upon all the points.

Frazer for the plaintiff in error contended, that under the
circumstances of the case, the nonattendance of the defendant's
commissioners was fatal. The commissioners of the plaintiff
made no inquiry themselves; but referred it to Crqft^ who
sought among merchants for persons who do not appear to be
of that description, and then turned the matter over to a clerk
in the postoffice. Every thing he learned from the clerk is
hearsav; he did not know a svllable of it to be true; and the ob-
vious way to ascertain the truth would have been to swear the
clerk or the lettercarriers. The neglect of such a precaution is
strong to shew a design of excluding the defendant's evidence.
Croft himself was not legally sworn. The oath was administered
by one who docs not set forth any authority; and the affidavit is
therefore no more than an informal account of what another
person told him, which should not have received the least cre-
dit from the court below.

The defendant's interrogatories should have been put to the
plaintiff's witnesses, for whom from their nature they were
designed, as well as for his own. At present the witnesses stand
without cross examination, although the materials for it were
in the commissioners' hands.

MarteU'i does not swear either that he saw, or that he be-
lieves he saw, Pigott execute the warrant of attorney; or that
the signature is his handwriting. He merely swears that from
his minutes he is convinced he witnessed its execution, which
might have been by a person who forged Pigotfs hand. To
make a deed evidence, the execution of it must be proved by
at least one witness, who saw it sealed and delivered by the
party. The handwriting is one step; but although this be
proved, or even confessed, it will not answer without proof of

WAY,

OF PENNSYLVANIA. 439

the delivery, which is of the essence of the deed, and which can 18t)8.
be proved only by a witness who sav-^ it. Abbott v. Plumbe (a). Pkjott
Com. Dig. Evidence B. 3. Bull. N. P. 254. Gilb. Ev. 99. v.
Peake Ev. 97. Martelli does not swear to the delivery, nor to Hollo-
the handwriting of Pig-ott^ nor to its execution by him. All
that he swears may be true, and yet the warrant no deed of
Pigott. He even swears from minutes, and not from recollec-
tion refreshed by minutes. Peakc Ev. 190.

Milnor and Ross for the defendant in error. The circum-
stances shew either fraud or gross negligence in Pigott. The
residence and profession of the plaintift^'s commissioners being
accuratelv described, it was easy on his part to find them out,
and to produce to them, both his witnesses and commissioners.
On the other hand the profession of his own commissioners not
being set forth at all, and their residence stated to be merely in
London., where without further description it would be hope-
less to look for them, nothing can be imputed to the plaintiff
for not finding them. If it rested only here, the objection would
be of no avail; for the ex parte execution would be owing to a
loose description by the defendant, who by diligence might
have remedied the evil, and whose duty it was to do it, and not
ours. The plaintiff is not to lose the benefit of testimony, by the
laches of the opposite party. But further. The commissioners
were sought for among merchants, and at the general post-
office, and an affidavit made that the inquiries were futile. The
ver}' names are calculated to increase the difficulty. So that it
is clear there was something more than negligence.

The answer to the second objection is obvious. The defend-
ant directed his interrogatories to be put to his own witnesses,
and he produced none. It would have been contrary to in-
structions if the commissioners had exhibited them to the wit-
nesses of the plaintiff.

We do not argue tliat the deposition of Martelli conclusively
proved the warrant of attorney, but that the proof was sufficient
to go to the jury; and Par/lc v. Meats (/;) is a plain authoi ity
for this distinction. H Martelli was quibl)ling, the jury might
have disbelieved him; but if he was not, the warrant was suffi-
ciently proved. After the lapse of eleven years, he was right

Cfi) JJouf^. 20.1 (b) .T Juf}. in

4 to CASES IN THE SUPREME COURT

1808. t« speak cautiously. He gives the ground of his belief"; and he
~~^ ~" concludes by saying, not that his minutes prove this or that, but
1,, that he is convinced that he witnessed the execution, which in-
HoLLo- dudes every thing. To say that it might have been executed
WAV. ]^y some one else, is deciding upon the eftcct of the evidence,
which was for the jury. There have been many instances in
our own courts, where such proof has gone to the jury. In a
case ex parte Hiiirtf and Laxvcrswyler in the district court, the
witness swore that he did not recollect the execution, but that
he knew his own handwriting, and would not have signed un-
less he- had seen the execution of the deed. It went to the jury.
So in the Lessee of Roberts v. Beatty^ where a subscribing wit-
ness to the will of Jane Roberts swore to his signature, but did
not recollect to have seen the testatrix sign it, nor did he know
her handwriting. And the like in Ncffw Neff'm this court.

Reply. The case of Park v. Mears is not to the purpose.
There the witness did recollect that the obligor acknowledged
his signature; and he attested it at the request of a person then
with the obligor. But the question was whether the execution
had not been previously completed before a witnessgin another
room, and so this acknowledgment merely in the light of
a subsequent confession, which would not be evidence. In
Hurrif^s case the witness sw^ore that he should not have signed
it, unless he had seen the party execute it; and that was proba-
bly the case in Roberts v. Realty. But here the witness does
not swear to his practice of not attesting except when he saw
the party execute the instrument, nor does he swear even to a
belief that he saw Pigott execute it.

TiLGHMAN C. J. This cause comes before us on a writ of
error to the common pleas of Montgomery county, founded on
a bill of exceptions. Thomas Holtoway the defendant in error
was plaintiff below. His action was founded on a judgment ob-
tained against the defendant in one of the courts of England.
A commission to take depositions of witnesses residing in En-
gland was moved for by the defendant and issued, in which
both plaintiff and defendant joined. Each party exhibited in-
terrogatories. The plaintiff filed interrogatories to be adminis-
tered to his own witnesses, and also to the witnesses of the de-
fendant. The defendant filed interrogatories to be administered

■WAY.

OF PENNSYLVANIA. 441

to his own witnesses only. Two commissioners were appointed 1808.
on each part, and the commission was sent forward directed to p
the four commissioners. It was returned executed by the plain- x;.
tiff's commissioners only, who certified that after diligent in- Hollo-
quiry and search, no such persons, as those who were named
commissioners for the defendant, could be found. Annexed to
the return of the commission was an ex parte affidavit oi Faithful
Croft^ making particular mention of the steps taken by him to
discover the defendant's commissioners. The plaintiff's tom-
xnissioners are described in the commission both by their pro-
fession and place of abode. The defendant's are only described
as being of London.

Two objections were urged by the defendant to the admis-
sion of the depositions taken on this commission as evidence on
the trial. 1st. That the execution of the commission by the
commissioners of the plaintiff only, was irregular. 2d. That the
interrogatories of the defendant ought to have been adminis-
tered to the witnesses produced on the part of the plaintiff. On
both these points the court below gave an opinion against the
defendant, and permitted the depositions to be read in evidence.

The defendant then objected to the reading in evidence of a
warrant of attorney, said to be executed by him, annexed to the
return, and referred to in the deposition of one of the witnes-
ses, who swore that his name subscribed as a witness was oi
his own handwriting, as was also the defeasance to the war-
rant of attomev; that on having recourse to some private mi-
nutes of his own he found that on the day of the date of the
said warrant he was at a certain house in London^ where he sup-
posed it was executed; that the seal was an impression from an
engraving which belonged to him; and from all these circum-
stances he was convinced he was present and witnessed the
execution of the said instrument; and that there was no other
subscribing witness. The court below were of opinion that on
this evidence the warrant ofattornev might be read to the jury.

These several oljjections are stated in the 1)111 oi exceptions,
on which tliis court is now to decide.

As to the irregularitv of the execution of the commission by
the plaintiff's commissioners only, it appears to me that, cir-
cumstanced as matters were, an ex parte execution was not im-
proper. It was the defendant's fault that his commissioners had
no share in the execution; he was negligent in not describing

412 CASES IN THE SUPREME COURT "

1808. them by their profession or occupation, and place of abode. Be-
PiVoTT ^'^"^^ '^ does not appear that he took the proper measures for
V. executing the commission. He had a right to forward it him-
Hoi.Lo- self, and should have done so. If he did not know where his
^^^^' own commissioners resided, he should have sent the commis-
sion to some friend or agent, with directions to find them out;
and he should have taken care to give notice to the plaintiff's
commissioners where his own were to be found. The court
cannot avoid observing that this would have been very easy, as
the plaintiff's commissioners were men of notoriety; one of
them Mr. Marshall^ a serjeant at law and author of the trea-
tise on insurance; the other Mr. Lawes^ a barrister. The com-
mission is dated in May 1805, and executed in January 1806;
so that there was ample time for taking every necessary step to
insure the attendance of the defendant's commissioners. It
would be extremelyhard if, after this lapse of time, and this care-
lessness of the defendant, the plaintiff should be deprived of the
benefit of his testimony, merely because the commission was
not executed by men who were sought for and could not be
found.

The second objection is answered by adverting to the inter-
rogatories filed by the defendant. They are directed to be ad-
ministered to his own witnesses. It is much to be regretted, if
any material facts have been lost for want of a cross examina-
tion of the plaintiff's witnesses. But the commissioners acted
with strict propriety in not propounding any questions on the
part of the defendant to the plaintiff's witnesses, because the
defendant had not directed any such questions to be put.

As to the third objection, which goes to the reading the war-
rant of attorney in evidence, I am clearly of opinion the court
below were right.

Whether the evidence contained in the de|Msition was suf-
ficient to establish the execution of the warrant of attorney,
was for the consideration of the jury; but surely there was
enough to authorize the court to submit it to them. Few men
can swear positively to the sealing and delivery of an instru-
ment after any considerable time. In this instance the witness
mentioned strong circumstances from which he was convinced
that he attested the execution; he knew his own handwri-
ting and his own seal. But the defendant's counsel has urged,
that he has not said that the signature of the defendant's name

OF PENNSYLVANIA. 443

was the defendant's writing, nor that the instrument was exe- 1808.
cuted by the defendant. True, he has not; his expressions are "^j^'^j^^
*' that he is convinced he was present, and attested the execu- ^,
" tion of the instrument." It is possible the witness may have Hollo-
quibbled. He might have seen the instrument executed by ^^^"^■
some other person who forged the (lefendant's name. But this
kind of quibbling approaches so near to perjury, that none but
a rogue would be guilty of it. If his character had been proved
to be bad, the jury might have disregarded the evidence. But
unless his character was impeached, I should think the jury
well justified in believing, that the instrument was executed
by the defendant. On this point however they were left to
judge. The objection is, that the court ought not to have suf-
fered them to exercise any judgment on it.

My opinion is, that the court of common pleas decided
rightly, and that their judgment be affirmed.

Yeates J. of the same opinion.

Smith J. Were the objections of the plaintiff in error to the
regularity of the commission to prevail, it would be in the pow-
er of an artful defendant to delay a trial for a long period, by
naming commissioners not in existence, or not to be found.
The defendant below first applied for the commission; the
plaintiff joined; regularly the defendant should have given no-
tice to the plaintiff's commissioners of the time and place of
taking the depositions, as they not only did exist, but were well
known, and the place of their residence described in the com-
mission; while that of the defendant's commissioners was care-
fully concealed; nor has it been to this day disclosed. It is im-
possible not to see at least an affectation of delay in the defen-
dant's conduct. As to the neglect of examining the plaintiff's
witnesses upon the defendant's interrogatories, the defendant
did not direct any questions to be put to them. In all the pro-
ceedings of the lower court, I think they were right, and con-
cur in the affirmance of the judgment.

Brackenridcf. J. concurred with the chief justice.

Judgment aflftrmrd.

444 CASES IN THE SUPREME COURT

1808.

Vans ANT against Boileau and another. ib 4441

24th. " In Error. ,«« ■■«i

Saturday,
December

108 308

An executor TT' RROR to the common pleas o£ Bucks.
t^ff'in'a fVitrn "^^ ^'^^ ^^^^ below was a feigned issue from the register's
ed issue to court, to try the vaUdity of a paper purporting to be the hist
itvof the* ' 'will of Nicholas Vansant; and the defendants in error, who were
will, is not a the executors named in that paper, were the plaintiffs in the
wiuicss^be- 'ssue. Upon the trial, Mr. Boileau was offered as a witness to
ing liable for support the will, and was objected to for various reasons; but
A writ of ^^^ material one was his liability for costs. The court overruled
error lies the objection, and sealed a bill of exceptions; and the jury found

from this i* r i i • -rr • 1 1 •

court to a ^ verdict tor the plamtins, sixpence damages, and sixpence

judgment costs, upon which judgment was entered as in common cases.

rendered by

the common

pleas upon a The question under the bill of exceptions was argued at

feigned is- March term, 1807, when Ross for the plaintiff in error conten-
^"^- ded, that even considering Boileau as an executor, he stood in

the light of a prochein amy, who being liable for costs, is in-
competent, according to Hopkins v. JVeal, (a) though he might
have no other interest ; and that it was a general rule that a
coplaintiff could not be examined on behalf of the plaintiffs,
in consequence of this liability. 1 P. Wms. 595.

Condy, on the other side, argued, that as executor he was not
liable for costs in the event of his failure; (^) but further, that
upon a feigned issue, the costs did not follow the event of the
trial, but were adjusted in the register's court as expenses at-
tending the probate, and charged according to their discretion.
Of course Boileau had no interest.

The court however decided that he was not a competent wit-
ness, on the ground of his being accountable for costs, and so
maintained the exception.

Conc/y then moved to quash the writ of error, and had opened
his argument, when it appeared that the writ had not been duly
returned, and it went off for amendment. Upon the return of the
writ, the motion was renewed, and argued at the present term.

fa) Stra. 1026. '!>) Vide Tolhr. 439-

OF PENNSYLVANIA. 445

In support of the motion he contended that the authority 1808.
of the common pleas, overissues from the register's court, was Vansant
confined to taking and returning the verdict; and that the judg- t.
ment was a nullity. The 18th section of the act of 13th April Boilkau.
1 791 provides " that if the register's court, upon a dispute
' upon facts arising before them, shall sefid an issue into the
court of common pleas, which they shall do at the re-
quest of either party, and a verdict establishing' the said Jacts
" be retvmed^ the said facts shall not be reexamined on ap-
peal." The law knows nothing of a feigned issue formed in
the common pit as; it directs the real issue, between the parties
in the register's court, to be sent for the decision of a jury,
without declaration or plea, or any of the forms of a common
law suit; and the common pleas, instead of sealing a bill of ex-
ceptions, hearing a motion in arrest of judgment, or entering
a judgment, are expressly to certify the nakexl verdict to the
register's court, for their further proceeding. If a new trial is
proper, from the errors eithtr of judge or jury, the application
must be to the register's court; and if they err in their defini-
tive dccrte, the IGth section gives an appeal to the court of
errors. A judgment by the common pleas is therefore no judg-
ment in point of law, as they have no authority to render it. If
they have, they may oust the party of his appeal; for instead of
the register's court passing a final decree upon the facts re-
turned by the verdict, all whir h may be carried by appeal to
the court of errors, this court will pass a final judgment only
upon matters of law appearing on the record. The whole pro-
ceeding is copied from, and is in strict analogy to, tht; sending
of issues from chancery. Upon verdicts on these issues, judg-
ments are not entered in the common hiw court, 2 Ilarr. Oum.
124.; and if a mw trial is wanted, application must be to the
chancellor; ihid.^ whether for the misdirection of the judge or
otherwise. Lord Fuulconhertf v. Puree (a), Cleeve v. Gas-
coigne (/;). And what shews clearly that the issue does not at
all follow the course of issues originating in the common law
court, is that the costs, which follow the event of the trial in
other cases, in these are in the discretion of chancery, 0. Ilarr.
Chan. 125. Now, in the fee bill, or in the act of 1791, there is
not a word about the costs of an issue i\<m\ the register's court.

(a) AmU 210 (/;) Ambl. 323.

Vol. I. 3 L

446 CASES IN THF, SUPRKME COURT

1 aOR. At common law there are no costs. The act being silent, the
VAAs\Nr common pleas cannot give them. Hut it jmist give them co
V. nomine, and to the winning party, if it renders judgment upon
Boii.EAU. this verdict; and therefore it cannot render judgment. The fact
is that there are no costs at all; l)ut the expenses of the issue
are an incident to the probate of the will, and are charged ac-
cording to the discretion of the register's court. Another diffi-
culty: the executor is helrl not to be a witness. We wish to
strike his name from the proceeding; it is a mere form, and any
name will do as well. If the verdict were certified to the regis-
ter's court, they who moulded the proceeding might rectify it;
but if it be strictly a suit at law, we are without remedy either
here or in the common pleas, except at the expense of paying
costs.

JRoss contra. "The common pleas has rendered a formal
judgment, and therefore we are clear of technical difficulties.
It is now simplv a question, who is to correct the errors of that
court upon the trial of a feigned issue. That the register's court
can, is begging the question. It is a court of limited jurisdic-
tion, and of prescribed powers, wholly unlike the court of chan-
cery; which has the most extensive authority, and in various
ways directly or indirectly controls the proceedings of other
courts. The act does not authorize the register's court to grant
a new trial. It provides no way of making known to it the mis-
direction of the judge, or the evidence; but it gives the limited
power of sending forward an issue, which in every respect
thereafter is left to the operation of common law rules. In
point of fact there are real parties to this issue; in practice there
is a declaration and a plea; matters of law and fact are discus-
sed according to common law principles and the rules of evi-
dence; and therefore there is nothing to except it from the
control of this court, which has power, equal to the king's
bench, to correct errors in the judgment, process or proceed-
ings of the lower courts. Act of 1722. Province Laws 112. The
act of 1791 gives a new jurisdiction to the common pleas in the
matter of feigned issues, without limiting the mode of its ex-
ercise; it must therefore be according to the course of the com-
mon law, and controllable by writ of error or certiorari from

OF PENNSYLVANIA. 447

this court, Groeiivelt v. BuinvelL («) Accordingly so has been 1808.
the practice since the date of the hnv. In numberless cases theTT ~~~~~r
issue has been lemoved by certiorari to this court, and tried .y.
here, precisely like other issues. In one case the plaintiff was Boileau.
permitted to suffer a nonsuit; and in Vanlear v. Van/ear this
court, and not the register's, granted a new trial. This mode
of proceeding is obviously the most convenient, and by far the
most conducive to justice; and it in no wise defeats the law,
because the verdict can be as well returned after a new trial
and judgment, as before. Costs it is said are not of course; but
the contrary has been the uniform sentiment, and it was clearly
implied by the judgment of this court upon the bill of excep-
tions. But if the objection were good, it proves nothing, be-
cause as the costs of the verdict are settled, so may be those of
the judgment and writ of error.

Reply. The practice under the law can be of no avail against
its express directions ; especially a recent practice, as any one
under this law must be. How is the bill of exceptions obtained
in this case? The statute gives it where one is impleaded before ^

the justices to whom the exception is alleged. If these parties
are impleaded any where, it is in the register's court. As to
allowing a nonsuit, that decision has been often overruled, and
it shews the difference between this and other issues; to allow it,
would be to defeat the register's court, and so does the writ of
error. Our great difficulty is unnoticed. How are we to get
Boileau^ s- name from the issue? [C. J. Tilghman. You may
apply to the register to new model the issue.] That we could
have done had the verdict gone back; but the register's court
cannot now get hold of it.

TiLGHMAN C. J. This case comes before us on a motion to
qua .h the writ of error by virtue of which the record was re-
mcjvcd from the court of common pleas oi Bucks county. An
issu< had been directed to that court, by tlie register's court of
Bucks county, to try the validity of a writing set up as the last
will «>r Nicholas Vansant deceased. The court of common ple.xs,
according to the usual course of proceeding in such cases,

(rt) 1 SM. C6.^

448 CASES IN THE SUPREME COURT

1808. caused an action to be entcrcJ, a declaration to be filed, and an
V'ansan r issue joined. A verdict was found for the plaintiffs, in which
V. damages and costs were assessed, and judgment was entered.
BoiLEAu. In the course of the trial, a bill of exceptions was tendered b}'
the defendant who is plaintiff in error in this court; which was
sealed by the judges and sent up with the re«ord. The point
contained in the bill of exceptions was argued some time ago;
and this court delivered their opinion in favour of the plaintift'
in error. The counsel for the defendant in error then moved
to quash the writ; and he has urged many ingenious reasons
in support of his motion. The scope of his argument is this :
that by the act of assembly of 13th April 1791, the register's
court are authorized to send an issue to the court of common
pleas for the trial of facts disputed before them, and the ver-
dict establishing such facts is directed to be returned to the
register's court; that if improper evidence was admitted at the
trial, this should have been represented, b3^the party injured, to
the register's court, who might have ordered a new trial, and
in case they had refused so to do, an appeal might have been
made from their decision; that the court of common pleas
ought not to have entered judgment on the verdict found be-
fore them, nor had they any occasion for a feigned issue in or-
der to try the facts sent from the register's court.

It is unnecessary for me to give an opinion whether or not
the facts might have been tried in the common pleas, without
having recourse to the expedient of a feigned issue. It is cer-
tain that such and no other has been the course of proceeding,
from the passage of the act of assembly before mentioned to
the present moment. The action, placed on the record of the
common pleas, has been treated like all other actions. It has
been frequently removed to this court by certiorari and tried
by jury here. In the case of Vanlcar v. Vanlear in Chester
county, a new trial was ordered by this court; and it was once
decided that the plaintiff might enter a non pros.; though that
decision seems now generally agreed to have been made with-
out sufficient consideration, because the entry qf a nonpros.
would defeat the act of assembly which directs the issue to be
tried j and the verdict to be returned to the register's court. I
can see nothing in the act of assembly which looks like an in-
tent to place the register's court on the footing of the chancellor
in Englundj who exercises the right of ordering a second trial.

OF PENNSYLVANIA. 449

if he is discontented with the first. Now unless that court 1808.
can review the proceedings of the court of common pleas, it Vansant
would be a great defect in the administration of justice, if errors v.
could not be corrected in this court. If indeed the court of Boileau.
common pleas had given no final judgment in the case, there
would have been a technical difficulty hard to be got over: a
writ of error does not lie, except on a final judgment. But the
judgment entered by the common pleas has removed all objec-
tions of that kind. It seems to me, therefore, that whether we
consider this matter upon grounds of general convenience,
without regard to former decisions, or take it up on the opinions
which have been entertained both by the courts of commou
pleas and by this court, ever since the making of the law oa
which the case arises, the writ of error was properly issued. I
am therefore of opinion that it should not be quashed.

Yeates J. was holding a court of nisi prius during the ar-
gument, and gave no opinion.

Smith J. Ingenious as were the arguments of the counsel
who moved to quash the writ of error, I have not been able to
entertain a doubt upon the point.

The mode here pursued, of carrying the law on the subject into
execution, has been adopted from the passingof that law. Titks
to lands depend upon the legality of that mode. Yet if we lound
that the mode hitherto adopted was not warranted by the
law, we ought to correct it. Bat, as I think that this manner
of proceeding is warranted by the law and is c:ilculated to car-
ty it into complete execution, I cannot consent to quash the
writ of error.

As to the point contained in the l)ill of exceptions, against
the admiss!l)ility o( N, Boileau as a witness, if it be open to
consideration, I think it deserves another discussion. Arc we
preclutltd from discussing it? Let it not be said that judgment
is already given upon it. The record was never before this
court until this tirm ; the judgment therefore alleged to have
been given is a mere nullity. It seems to me not to be yet too
late for the court of common picas (which always imder this
act puts the issue directed by the register's court into form) so

450 CASES IN THE SUPREME COURT

1808. ^f> modify that issue, as that justice shall not he entangled ia
Y~j,g^jj^" a net of form, if this court shall be warranted in awardiug a
^.. venire facias de novo*

BoiLEAU.

Brackenridge J. concurred with the chief justice.

lb 450

Motion refused, '^^J^^?^

Judgment reversed, and \^^^,

* ' Venire de novo di>N^x<\^t&. 'iTJwfi

IwsDSH

Ig 131

— Ig HO

«■ * 19 407

haturaayy 2i 425

34 im\

C2 150
63 339

A parol con- >' I ''HIS cause was tried before Mr. Justice Teatcs at a nisi
saleoHands prius in the present month, when a point was reserved for

December E W I N G against Te E S .

24th.

is g-ood an- the opinion of this court,
frauds and ^^(^ facts, according to the report of his Honour, were
perjuries, to m substance these. .On the 14th November 1801 a written
action^for" a^eement was made by the defendant with Jacob S. Otto as the
damages. Soplaintiff's'agent, to pay the plaintiff 6,366 dollars 67 cents for a
contract ^T^ct of land in Philadelphia county; 300 dollars to be paid on
with an or before the 17th of the month, possession of the land to be
has mer'ely a delivered on the 30th, and the balance to be paid on the 22d
pai-ol &\xi\\o- December following, when the deed was to be executed. The
Quaere, whe- agreement was signed by both Otto and Tees. Upon the trial,
iher in any a witness swore that on the 17th he went with the defendant to
court will Otto^ and that the defendant told Otto he was sorry for his
grant a new agreement, as his wife did not like the place, but that he would
there has make him a compensation for his trouble; that Otto replied, he
been no mo- had sent the agreement to the plaintiff, and whether he would
the four be satisfied with it, he could not tell, as he had sold the place
days. £qj. iggg i-^rin he vvas authorized to do; that the defendant then

said, this is the day I was to pay 300 dollars, and if you cannot
tell me whether I am to have the place now, I will have no-
thing to do with it before diis man; to which Mr. Otto answer-
ed, if you do not take the place now, you will be sorry lor it
hereafter. The witness swore that he believed the defendant
had 300 dollars in his pocket; but he did not know that he ten-
dered it. Between the 17th and 25th the plaintiff assented to
the agreement. On or before the 30th the possession was ten-
dered, and on the 22d December a deed; both which the defen-

OF PENNSYLVANIA. 451

dant refused. The place was then sold for a less sum, and the ' 1808.
present action brought to recover damages for the breach of ""e^^TngT"
the contract. The material question of fact was whether the de- -v.
fendant had offered a performance on the 17th, which had been Tees.
refused by Otto; and for this the testimony above mentioned
was relied on; but by the plaintiff's counsel it was said to be
contradictory and inconsistent, and to be opposed by that of
another witness who swore that the reason assigned by Tees to
him, for not taking possession on the 30th, was simply because
his wife thought the place unlucky, and not because Mr. Otto
had refused to abide by the contract. The point of law, which
was reserved at the request of counsel, was whether, under the
circumstances of the case, Otto should not have had an authori-
ty in writing from his principal. His Honour charged the jury,
that if the defendant had tendered the money on the 17th,
which Otto had refused, he would have been no longer bound;
but that if he was merely using finesse to avoid compliance with
his contract, they should find for the plaintiff, which they ac-
cordingly did, 283 dollars ~1 cents damages.

Exi'tng' and Sergeant for the plaintiff. The naked question
is whether Otto^s authority should have been in writing. The
1st section of the act of frauds and perjuries, which embraces
the first three sections of the 29 Car. 2. c. 3. relates wholly to
conveyances of an interest in the lands, &c.; and it requires
that, to pass an estate in them, the conveyance shall be put in
writing and signed by the parties or their agents lawfully au-
thorized by writing. The 4th section of the English statute
then provides that no action shall be brought to recover dama-
ges upon any contract or sale of lands, unless the agreement
shall be in w riting and signed liy the party to be charged thcre-
^vith, or by some other person by him lawfully authorized.
This section is wholly omitted in our act. So that it was the
intention of our legislature to leave the action for damages as
it stood at common law. A parol agreement for the sale of
lands will therefore support an action for damages, still more a
parol authority to an agent to agree, which is good even by the
English statute. Si/gc/en 56. Bell v. Ajidmvs. (a) The most
that is required by the 29 Car. 2. is that the contract shall be

(a) 4 Datl. 152

452 CASKS IN THE SUPREME COURT

1808. signed by the party to he charged^or his agent. Signing liy the
~T~ ~, other party is unnecessary. Hatton v. Gray («), Fozvlev. Ffee^

Tres.

Blered'ith antl S. Levy for the defendant. The object of the
first section of our act was to prevent any part of a contract in
relation to lands, from resting upon parol evidence. The wri-
ting in question, which if it was any thing, was a sale of the
lands,convev{ d no interest to either partv, for want of a written
authority to the agent. It is good for nothing as to the purpose
for which it was intended: and therefore if it has any effect, it
must he against the intention of the parties. To go by the let-
ter of the act is doing injustice to its spirit. Its terms are some-
thing ambiguous; but its evident intention was to cut up alto-
gether parol contracts for lands. So it must have been held in
Nicliolsori's Lessee v. Miffin^ (c) where for want of proof of a
written authoritv to the ag'.nt, the plaintiff was nonsuited. Bell
v. Andreivs has nothing to do with the point; for the only materi-
al cjuc i^tion there, was whether the payment of the consideration
might be proved bv parol evidence. It is essential that the par-
ty signing should have some evidence in his hands to shew the
acquiescence of the part)' who does not sign, 1 Poxo. Conir. 286;
and this is not contradicted by Hatton v. Gray^ for there one
wrote, and the other signed, Avhich was equal to a signing by
both. From the manner in which the reserved point embraces
the circumstances of the case, we are however at liberty to
press them for a new trial; and although the four days are past,
yet where the court see that manifest injustice is done, they
will order a new trial of their own accord. There was in fact
no contract. The agent's declaration on the 17th November^
when the defendant must have tendered the money, shews that
he had no authority of any kind. What the plaintiff did after-
wards is immaterial; for on that day, the defendant, fiiidingthat
the agreement was without authority, retracted his promise,
which he had a right to do. A mere promise does not bind till
acceptance by the promisee; and till then, the promisor hdiS ^locus
pan'itent'uc^ as in bids at auction, and may retract. 1 Poiv. Contr.
544. Payne v. Cave, (r/) Both must be bound or neither. The
plaintiff certainly was not bound, either at the date, or on the

(a) 2 Chan. Ca. 164. (c) 2 Ball. 246.

{b) 9 Ves. jr. 351 . {d) 3 D. & E. 149.

OF PENNSYLVANIA. 453

17*th; the promise was therefore destitute of mutuality, and 1808.
the defendant was at liberty to decline when he did. Cooke v^
Oxky. {a)

Reply. The point is whether under the circumstances there
should have been a. written authority, not whether there should
be a new trial. The merits were decided by the jury; and
even if they were with the defendant, there is no instance in
which anew trial has been granted by the court, after the four
days have passed without a motion. [Smith J. In the King v.
Holt^S D. ^ E. 438. the court said, they would themselves
take an objection to the verdict, if they thought substantial jus-
tice had not been done.] That was a criminal case, and the
opinion of the court is confined to such cases. It was founded
upon the King v. Gough^ where Buller said the proceeding was
irregular. At all events, it is confined to cases of extreme and
palpable injustice; of which there is not a trace here. First, as
to the locus poenitenti*; it is gone the instant the contract is
reduced to writing, or is in part performed. 1 Fonbl. \7\. Then
as to the refusal by the agent and his want of authority; it is
plain the jury did not believe the defendant's witness, and that
they thought the defendant was practising a trick. Otto told
him to take the place f/if/i, and the plaintiff assented the instant
he heard of the agreement. He tendered the possession and
the deed; he recognised Otto for his agent from ihe outset,
and therefore it did not lie with the defendant to deny him.
When a party offers to perform, no case is to be found where
equity has inquired whether he was bound. And hence the
words circumstances of the case; for under the circumstances
we contended that no authority at all was necessary, as the acts
of the agent were adopted. I'hen as to the statute; all that is ne-
cessary in England^ is that the party to be charged, has sign-
ed, /'oti'/c V. Freeman is explicit, and has not been answered.
So is Hatton v. Graij^ for the writing was not a signing. Haxv-
kins v. Holmes (b). But in this state, the contract is attended by
all its consequences at common law, except passing the estate;
so that it is not nccessaiy in this action, that there should
be a signing by either party. NicUolson\s Lessee v. Mifflin was
an ejectment for the land, and therefore writing was tsbtntial.

(rt) 3 D. C- K. 649. {b) 1 P. Wim. 77V.

Vol. I. 3 M

EwiNG

V.
1 EES.

454 CASKS IN TlIi: SUPREME LOUin

1808. TiLGHiMAN C. J. This cause was tried before judge Teates

, , at nisi prius in Dixcmhir 1808; and on the trial a point was

.,,. reserved, on which it is now brouglit before the court.
Tees. The action was brought to recover damages for breach of 'k

written agreement, by w hich the delencUint engaged to purchase
a tract of hmd the property of the plaintiff. The agreement
was signed by the defendant and by Jacob S. Otto^ who was
alleged by the plaintiff to be his agent. It was objected by the
defendant, that supposing Otto to be the agent, it was necessary
that his authority from the plaintiff should have been in wri-
ting. The point reserved by the judge was " whether under
" the circumstances of this case, J. S. Otto should not have
" been authorized in ivr'iling^ to make the contract on which
*' the suit was brought to recover damages." The facts in the
cause were to be decided by the jury, taking it for granted that
the authority need not be in writing.

The act of assembly " for prevention of frauds and perju-
" ries," on which this point arises, provides that " all leases,
" estates, interests of freehold or term of years, or any uncer-
*■' tain interest of, in, or out of, any messuages, manors, lands,
" tenements or hereditaments, made or created by livery and
" seisin only, or by parol, and not put in writing, and signed
" by the parties so making or creating the same, or their agents
" thereunto lawfully authorized by writing, shall have the force
" and effect of leases or estates at will only, and shall not either
" in law or equity be deemed or taken to have any other or
" gi-eater force or effect, except leases not exceeding the term
'' of three years from the making thereof."

It is evident that this provision extends only to the estate
intended to be passed. No estate in lands shall be conveyed by
one person to another, unless the agent is authorized by wri-
ting. But it is one thing to convey an estate, and another and
very different thing to make an agreement that you will convey
it. It might be good policy to establish certain solemnities,
without which the title of land could not be transferred; because
the peace and happiness of society are promoted by the clear-
ness and facility with which the titles of real estate may be as-
certained, and by preventing those frauds and perjuries which
would inevitably take place, if after a great length of time it
was permitted to establish a title by parol evidence only.
Whereas, an action for damages for not performing a contract,.

OF PENNSYLVANIA. 455

is of much less moment. The jury may give such damages as, 1808.
under the circumstances of each case, appear reasonable, and "TT"
these damages will often be very small; and there is less dan- -j,_
ger of perjury, because those actions are limited, so that they Te^s.
must be commenced in six years. I should think the case suf-
ficiently clear, if it was taken upon the act of assembly, without
any other consideration; but it is still clearer, when we turn to
the English statute of frauds and perjuries, 29 C. 2. c. 3. It is
plain that our legislature had that statute before them, when
they framed the act in question; because that part of our law
which I have recited, is copied very nearly verbatim from il>e
English law. But there is a total omission of the fourth section
of the English statute, which enacts, that no action shall be
brought to recover damages upon any " contract or sale of
" lands, tenements, or hereditaments, or any interest in or con-
" cerning the same, unless the agreement on which it is brought,
" or some memorandum or note thereof, shall be in writing,
" and signed by the party to be charged therewith, or some
" other person thereunto by him lawfully authorized." It is
impossible that this omission should have been accidental. It
must have been intended to leave the common law unaltered,
as to the redress whicli it aft'ords for breach of a parol contract,
by recovery of damages. Agreeable to this construction is the
sentiment expressed by this court, in the case of /?('// v. y^/n-
dmvs^ 4 Dull. 152.; although the point now in contest is diffe-
rent from that which was then before them. The same con-
struction has been given in several cases at nisi prius, in which
damages have been recovered on parol contracts for sale of
lands.

But the defendant's counsel have contended that if the opi-
nion of the court on the reserved point is against them, they
ought to have a new trial; l)ecause they proved to tin- jury that
Otto had no authority ia make tlie sale at the time the writing
was signed, nor at the time when the first pa\ ment was to have
been made by the defendant. In the first place it must be re-
marked, that no motion for a new trial was made, and the four
days for making it are out, so that no motion can now be re-
ceived. It has been urged, that still, if the court perceive by
the judge's report of this case, that manifest injustice has been
done to the defendant, they will take- the matter up themselves,
and order a new trial. All that I shall say at present is, that

456 CASKS IN THE SUPREME COURT

1S08. '* "^"st be an exceedingly clear error indeed that should induce
"IETv-Tng "'^ ^^' interfere, after the four days have expired without a
1., motion lor a new trial. Nor will I commit myself by saying,
Tkrs. whether or not I should think myself justified in doing so, in
any case of a civil nature. It is enough that in the present case,
I am by no means satisfied that any injustice has been done to
the defendant. There is no proof that, as his counsel contend,
he tendered the money due for tlie first payment, and thjtt Otto
refused to receive it because the plaintiff had not ratified the
contract; nor even that he had the money ready to tender. The
testimony of the witness, on whom he relies to prove ihsii Otto
said he had no authority to make the sale, is not free from con-
siderable inconsistency. It was established beyond doubt, that
as soon as the plaintiff was informed of the contract, which was
not more than ten days from its making, he gave his assent to
it; that possession was offered to the defendant on the thirtieth
of Novetnbcr^ the day appointed for that purpose; and that at
the time fixed for making the last payment, the plaintiff ten-
dered the defendant a deed of conveyance in fee simple. Thus
every act of the plaintiff tended to a faithful performance of
his part of the agreement; while the defendant's whole conduct
evinced an intention to flj- off. And what has great weight with
me, judge Tcatcs^ before whom the cause was tried, and who
had a better view of the evidence than we now have, is well
satisfied that injustice has not been done by the verdict. My
opinion therefore is, that a new trial should not be granted.

Yeates J. concurred in opinion with the chief justice, that it
was not necessary that the authority of the agent should be in
writing. He went at the same time into the merits, for the pur-
pose of shewing that no injustice had been done by the verdict,
and that e^-en if the court could indulge the defendant with a
relaxation of the rule, he was not entitled to a new trial by the
evidence.

Smith J. expressed the same opinion upon the point
reserved; Init he thought that inasmuch as the question
was so reserved as to let in " the circumstances of the
case," and upon those circumstances there was so little
evidence of any contract at all, that manifest injustice had
been done to the defendant. His Honour said, *' Had the

OF PENNSYLVANIA. 457

point reserved been worded in the usual form, I think I 1808.
should have been compelled to give my voice in favour of the ^^^ ]
plaintiff. But the words *•' under the circumstances of the case" -y.
have some meaning, and were inserted for some purpose. If it Tees.
was not intended thereby to empower the court to investi-
gate and decide on the merits, they were worse than nuga-
tor}'; they tended to perplex. I am glad therefore that, if I
have discpvered during the course of the argument that injus-
tice has been done, I am at liberty to give mv voice for a new
trial, although it has not been moved for within the four davs.
More than one of the court during the argument said that a
motion ought to have been made; but on examination I re-
joiced that the strong inclination of my mind, the justice of the
case, was not fettered by form. Let it not be said that this re-
laxation of the rule is confined to criminal cases. The case of
Smith v. Gilman^ Stra. 995. Birt v. Barlow, Doug: 162. and
the reasoning in other cases, shew that there is no distinction
between civil and criminal cases, nor ought there to be any.
I am therefore of opinion that there ought to be a new trial."

Brackenridgf. J. On the reserved point I have no doubt.
Parol evidence may be given of an agreement to convey real
estate, upon an action on the contract, so as to entitle to dama-
ges; this not being within the act of frauds and perjuries. Nor
is there any thing in the expression " circumstances of the case,"
that will enable us to take them into view in considering the
point reserved. Hut whether the circumstances of the case may
be taken into view at this stage, a new trial not having been
moved for within the four days, is another matter. It is a rule,
that although the motion cannot be made after the four davs,
yet the court arc not prevented by this rule from granting of
tliem.sclves a new trial, if from a view of the evidence they sec
reason for it. But I am not i)repared to say that this verdict is
so palpably against the evidence as to make it clear that a new
trial ought to be granted; and I concur in refusing it.

New trial refused.

4-58

1808.

Afnrulnr,

Dcccinlur

36th.

The rule of

this court re-

quirnig ten

CASES IN THE SUPREME COURT

HeiVrv against Kennedy.

T~^HE plaintiff obtained a verdict in this cause on the 16tlr
-*- November last, at a nisi prius for the county of Philadelphia;
davs'"notice ^"^ °" ^^^^ ^^y' Dallas for the defendant, moved for a rule to
in uW/;//_c be- shew cause why there should not be a new trial; the verdict
term, of :m having been in direct opposition to the charge of his Honour,
intended judge Yeates, upon the law.

motion for -i
new tiiid, in

tauses tried M'Shane and Tod, for the plaintiff, contended that the mo-
at nisi prius, . ... r • • . . , .
applies to tion coulcl not be received, no notice oi it in xurittng having

causes tried been given ten days before the commencement of the term, ac-

at nisi prius . i /• i •

in the county cording to rule 34 or this court.

oi Philadel-
phi a.

Dallas answered, that he had given parol notice of his in-
tended motion in proper time, and had entered a memorandum
of it upon his notes. That this was sufficient in causes tried in
Philadelphia, as the rule was made when courts of nisi prius
were held in all the counties, and was merely intended to guard
against surprise or inconvenience when the cause was tried at
a distance. But

Per Curiam. The rule contains no such distinction. The

parol notice will not answer; and therefore the motion cannot

be admitted.

Motion rejected.

Thursday, l^A TIMER and YaRD Clgainst RiDGE.

December

To entitle a T^HIS and a cross action by Ridge against Latimer and Yard,

party to dc- J- were referred under a rule of court to arbitrators, who

■ferces'that' found against Ridge in both suits; and the exception upon

they will al- ■which it was now attempted to set aside the award was, that the

trprocTucT'^^ arbitrators had refused to allow Ridge sufficient time to produce

testimony, his evidence.

he must

shew them what it is, why he is not able then to produce it, and that he expects to

obtain it in a reasonable tiore. A naked alleg-ation that he desires further time is not

sufficient.

OF PENNSYLVANIA. 459

From the examination of one of the referees it appeared, that 1808.
at their first meeting in Apr dor May 1898, the parties were Latimer
present, and certain documents rehiting to a transaction in the -o.

West Indies were read, particularly the deposition of Richard Ridge-
Foster, taken under a commission from this court, returned
and filed the 10th November 1806. That on their second
meeting, the 1 1th Jidy, Ridge did not attend, but wrote to Mr.
Yard, one of the parties, that he was not prepared, for want of
papers. That on the 15th Septeynber, the referees again met,
when the counsel of Ridge addressed to them a letter, stating
that Ridge had never seen the evidence of Foster, until it was
produced before the referees, and desiring further time to pro-
cure testimony. That they again met on the 5th November,
when the counsel of Ridge a second time wrote for a continu-
ance, Ridge not having obtained his testimony; and that they
met finally on the 19th November, when they received alette*
from Ridge himself to the same effect. On this day they con-
cluded their awatd, having refused further time. Ridge did
not personally attend either of the three last meetings.

Brown, for the defendant, read the affidavit of Jost-ph
Hutchitison, the witness whom Ridge was desirous of opposing
to Foster, stating his knowledge of the matter, his absence
from Pliiladelpliia for some months, and his arrival here on
the 30th November 1808. He then contended that the refei-ecs
had precipitated the hearing, contrary to the interests of jus-
tice and the rules of law. It was a case he said involving the
character of his client; and all he desired was, that the same
referees should hear this witness, who was now for the first time
in the defendant's power.

Tilghman, in support of the award, said that the refusal
oi Ridge prrsonally to attend the meeting of the referees, and
confining the communication to letters, would alone have jus-
tified the referees in refusing time; for they had a right to
question him u|)on any point lluy thought materially connect-
ed with his demand of lime, to ascertain whether it was not an
affectation of delay. Hut further, the letters did not state how
much time he wanted, for what particular object he wanted it,
what were his expectations of procuring testimony by delay,
Tior what pains he had before taken to provide iu He was in

460 CASES IN THE SUPREME COURT

1808. f'>ct guilty of laches at the outset; Foster's testimony had been

Latimer "<^^ily two years returned under a commission in his own suit»

V. when it was first read to the referees, and had also been five

Ridge, months before them, when a continuance on that account was

first asked.

Hopk'inson replied, that no objection was made at the time to
the absence oi Ridge ^ or to his communications by letter. The
referees had in fact acknowledged the propriety of the request,
by granting time, but had erred in granting it for six weeks
only, when a continuance in court would have given three
months. Hutchinson was absent during the whole period of the
reference, and returned ten days after the award. Ridge did not
know of his evidence until the 15th September^ the day on
which his counsel asked for time to procure it. There were of
course no laches in the case; and it results to the simple ques-
tion whether reasonable time was allowed.

TiLGHMAN C. J. The exception is that the referees have
acted improperly in not giving further time. We think that the
exception is not supported, because Ridge did not inform the
referees what evidence he wanted, the reason why he was not
able then to produce it, and that he expected to be able to pro-
duce it in a reasonable lime. A court of justice would not
have granted a continuance, unless all these circumstances had
been satisfactorily shewn. This court must decide on general
principles. It is to be distinctly understood that a naked alle-
gation, that a party desires further time to produce testimony,
is not sufficient. It would tend to infinite delay.

Per Curiam, Award confirmed.

OF PENNSYLVANIA. 461

1808.

II ■ TT Friday,

Graham and another ogatmt Hamilton. December

30th.

EXCEPTIONS to an award of referees. The referees made ^^j^^^'^' "^f^^^^^^
up an award in favour of the plaintiffs, and returned itu.eactof
into court with their names subscribed to it, but rcithout ^^"^^•jl'^f^f^^^^
The defendant fd^-d several exceptions; but the only one noticed .idminister-
upon the argument, was the omission of seals; required by the ^j|^^°J^^^^^^-
following clause in the 3d section of the act of 21 March ISOe.jxnscd with
7 St. Larvsy 559. " Th,; referees, chosen in pursuance of ^^e ['.>;^^"J P^fjj .^
" directions of this act, shall be sworn or affirmed (imless ^/ze no necessity
^' same shall be dispensed zvith by the consent of the parties) to ^'^^.^j.^^J'g^iould
"try and determine the cause referred to them, and a just h '.nacr
" axvard make out under the hands and seals of a majority of^''^-
" them, agreeably to the terms of the submission."

The cause now coming on to be heard, it appeared in evi-
dence that the oath had been dispensed with by consent of par-
ties; and the sole question for the court was whether the seals
were not dispensed with as a consequence.

Condij for the plaintiffs. The clause of the act is connected,
throughout. There was no obligation to make an award under
seal, distinct from that created b}' the oath; and as the oath was
waived, so was the duty. It is true the oath is to make a just
award : and so it may be urged against this construction that
that also would be waived. iJut the distinction is between a
moral duty not created, but merely enforced, by the oath, and
a duty which has no existence except under the oath. The ce-
remony, moreover, is entirely useless; and therefore the court
should favour that construction which gets rid oi it.

.Serifeant for the defendant. Even if the clause is connected,
still the oath is merely a sanction to the whole duty, which re-
mains, though the sanction be waived. Tiiis is evident from the
mode in which a just award, and the ceremony of its being
under hand and seal are joined. It is the same as if the legis-
lature had prescrilied the entire duty as it stands, and had then
directed the oath to perforin it, unless it should be dispensed
with by the parties. But the clause is not connected. The oath

Vol. I. 3N

TON.

462 CASES IN THE SUPREME COURT

1808. '8 t" *'■>' ^^^^ dftennine the cause ; and dispensing with it only

"Graham '"^^'*'^'^s them from an absolute duty to do this. If the duty of

\.. affixing a seal is comprehended by the oath, so is the duty of

Hamil- making a ji'st award ; and then the legislature is involved in

the absurdity of authorizing the parties to dispense with ^Just

award. Had the legislature intended to enforce the several

duties by the oath, the phrase would have read, " and a just

award to make out," &c.

Per Curiam. The making a just award under hand and
seal is a part of the oath; and there is no absurdity in imposing
on the referees an oath to perform their duty justly, or in re-
lieving them from the oath, if the parties sufficiently confide in
their honesty without it. They are still bound substantially to
do their duty, after the oath is waived; but there is no direc-
tion to adhere to the ceremony of a seal, independent of the
oath; that being dispensed with, so is the seal.

Award confirmed.

Baker's Case.

f'ridtiy,

Decenibcf

SOUi.

A petitioner -pj AKER presented his petition to this court under the act

for rciior Yf .

under the in- -*^ of April 1 798, praymg for the relief prescribed by that and

^''l^^"''^^^^"^ other insolvent acts of the general assembly. The schedule an-

1798, must nexed to his petition set forth that he had no estate of any kind,

exhibit to having made an assignment of all his property on the 13th Oc-

tlie court a " ° . .

sUitemeiitin tober 1808, Avhen he was discharged under the insolvent acts

-ii-ntirg ni h\s ^y the common pleas oi Philadelphia county. His object at this
tlie means time was to bar two creditors whom he had omitted to serve

whereby he | j^ notice upon his former discharge.

becaiTie in- ' ^

solvent. The application now coming on to be heard, the chief justice

vho^ri"'^ asked whether the petitioner had made any statement in writing

propcitv of his losses and the means whereby he Ixecame insolvent,

nevmhekss agreeably to the 2d section of the act of 4th April 1798. This

entitled to section directs that the insolvent shall exhibit to the court " a

ofUichisol- "j"st and true account of his debts, credits and estate, real

vent acts. *' and personal, containing a statement of his losses and the

" means whereby he became insolvent."

OF PENNSYLVANIA. 465

Chaunceij^ for the petitioner, answered that he had not, but 18O8.
that he was ready to answer upon oath any interrogatories g^j^^-j,^
upon that head. He said that the written statement very rarely Case,
in practice accompanied the proceedings, and that in this par-
ticuhir the construciion of the law seemed to be settled by the
practice, in like manner as in respect to the insolvent's estate;
for although the letter seemed to require that he should have
some property, yet relief had uniformly been extended to ap-
plicants who had none.

Per Curiam. There must be a statement in writing- of his
losses and the means whereby he became insolvent. A matter,
so essentially connected with the discharge of an insolvent, is
not to rest upon verbal explanation, of which no trace remains
upon record. The court owe it to the public to prevent this
statement from falling into disuse, or becoming a nominal
ceremony. As to the circumstance of the petitioner's having
no property, it has been held to be within the spirit of the law;
relief has often been afforded in similar cases.

The written statement not having been usually exhibited
lierctofore, the court gave Baker until the next day to prepare
and file it; l)ut they said they would have it understood here"
after that writing- was essential.

Hughes ap-ainst Heiser.

19 , r- Drcciuber

20
96

In Lrror. 31jj(_

bl-
oc -

WRIT of error to the common pleas of Berks county. To supporf
II ■ .u t • .-ir II I I 1 • • :m action oj

tieiser^ the piamtin below, brought his action ag^mst ^1,^. ^..,gj. Cm.

Ilitirhes to recover damages for obstructing the navigation of <li»m:ij;'c oc-

the Iiit( Sc/u/ijliill. The declaration set forth, that by an act of .j,^,,,,,,',,,,^

assembly, passed March 1 , 1 8(X), Biq^ .Scliuijlkill, from the mouth nnisniu c, it
f ,, . , , 1 ' y. " • 1 • is not iicccs-

01 Norwei^tan creek to where the 6a/«7i'n'.sr// road crosses it, „.„.y that ih«

wa.s made a public highway for the passage of boats and rafts; ^l='"'='K'i^' «"»•

t:iim<l

l:iim<l
sluxiUl have

l»r<n direct; if is ( noiiji^li if'it wnscovser/tuntiui'

Till- plaiiilif] (ifcland tliat lie had prcparcil raflH, willi inlcIU to luivijyatr llicm down .'*
jiviT, wliicli was a pnhlic hijfhwa); and thut hi; did navi^'ate tlicrn, inilil Ik- c;imc to a (\nm
erected by the tl',f(;ndant, hy wliich he was prc^vcntid from j)as';i»ij^ down the river wil^i
Ills rafts liild, that. lliis is sunicicnl special danial,'-c to suppoit an action.

4.61 CASES IN THE SUPRKME COURT

1808. ^vitli SLpyoviso^ that the act shouldnot be understood to prevent
"Tt anv person, possessing hmds on the river, who before the act

^. had authority to erect a dam, Irom erecting such dam or clams

Heiskr. as he might think proper; provided that such dam were con-
structed and kept in njjair with a proper slope and lock, that
the navigation shouldnot I)0 injured, nor the fish prevented
from passing. It ilu n stated that Hughes on the 1st November
1800, made a dam of the height of eight feet across the Big
Sc/nn/lkill Within the limits above mentioned, without a proper
slope or lock, so that it injured the navigation, and prevented
the passing of fish; and that he kept up and maintained the dam
from that time until the impetration of the writ. It then pro-
ceeded as follows: "■ And whereas the aforesaid Ulrkh He'iser^
" after the passing of the act of the legislature aforesaid, and
'* after the dam aforesaid was erected as aforesaid by the said
" Hugh Hughes^ to wit on the 1st day of Julij 1801 at the
" county aforesaid, had provided for himself a large quantity of
" pine boards, to wit 50,000 feet, and a large quantity of tim-
" ber of various kinds, and had the same pine boards and tim-
" ber made into three rafts, in the aforesaid Big Schuylkill in
" the county aforesaid, above the dam so as aforesaid erected
" by the said Hugh Hughes^ and the said Ulrich Heiser did
" then and there intend to navigate the rafts aforesaid down
" the Big Schuijlkill below the mouth of Norwegian creek
" aforesaid; and the said Ulrich Heiser further saith that on the
" first day of yiily aforesaid at the county aforesaid, the water of
" the said Big Schuylkill th^tn being unusually high, he the said
*' Ulrich Heiser did navigate the rafts aforesaid containing the
" boards and timber aforesaid^ down the river Schuylkill to the
" dam so as aforesaid erected kept up and maintained contrary to
" the act aforesaid by the said Hugh Hughes^ which rafts were
" then and there of a proper and convenient form for the navi-
'* gation of the said river; and the said Ulrich Heiser does aver
" that the aforesaid dam, so as aforesaid by the said Hugh
'•'• Hughes erected, was by him the said Hugh Hughes kept up
" and maintained on the day aforesaid at the county aforesaid,
" without a proper slope or slopes, lock or locks, and contrary
'* to the act aforesaid; so that as well rafts as boats were hin-
" dered and entirelv prevented from passing down the said Big
••' Schuylkill. And he the said Ulrich Heiser says, that he 7vas
"" then and there, by the dam aforesaid, erected and kept up by the

OF PENNSYLVANIA. 465

" said Hugh Hug-hes^preventecl from passing dorun the said Big \ gos.

" Schuidkill -with his rafts aforesaid., to the dam;'.B:e of the said~iT

•' J J ' t> Hughes

" U<riih Reiser two hundred dollars Sic." -j,.

The jury found for the plaintiff forty pounds damages. Heiser.

Evans and IngersoU for the plaintiff in error. The declara- '
tion contains no cause of action. It is founded on a common
nuisance, and therefore cannot be maintained, except for a par-
ticular, direct injurv, in which case x\\(t per quod is the gist.
That the dam was a common nuisance, and that Hughes might
have been indicted for it, is abundantly clear. Co. Litt. 56. a.
3 Black. Com. 219. The damage being common to all the citi-
zens, no one can assign his proportion of it, unless he has re-
ceived an injury both particular and direct. In the present case
there is no particular damage whatever. If Heiser may sue,
fifty others may do the same; for all persons passing down the
river must be obstructed. It is not that he may not have suffered
inconvenience, but that he has suffered an inconvenience com-
mon to many; and therefore to avoid a multiplicity of suits, the
law turns him to an indictment. In the next place, the damage
is consequential. No harm is charged to have been done to the
rafts, or directly to the owner; and if any was sustained, it
was the consequence of delay, which is not sufficient. In
Paine v. Partrich (a) the court put this case, '' that if a high-
" way be so stopt, that a man is delayed in his journey a little
" while, and b)' reason thereof he is damnified, or some impor-
" tant affair mglected, this is not such special damage for
" which an action on the case will lie; a particular damage to
" maintain the action, 7?;?/.sf he direct and not consequential; as for
*' instance, the loss of a horse, or some corporal hurt, in falling
" into a trench in the highway." To the same purpose is Hubert
v. Groves^ {b) where it was laid, that by the obstruction of the
road, the plaintiff was obliged to carry his coals and timber, by
a circuitous and inconvenient way; and he was nonsuited. So
is Bull. N. P. 20. It is however agreed in all cases where special
damage of some kind is nrccssary, that it should be laid with a
per quod^ the business of which is to close the action, and shew
the cause of it. It irj so in slander, where the words are not
actionable in themselves; and the rule is the same in a common

(rt) Canh. 194. ib) 1 F.sp. 118

466 CASES IN THE SUl»REME COURT

1808. "uisanccj because in both cases, it is the special damage that
~TT ~ supports the action. The case of hcson v. Moore^ (o) in whicU

^,. the court was divided in opinion whether it was sufficient spe-
Heiskk. cial damage to hiy, that by the obstruction in the highway, the
plaintiff's carts for carrying his coals could not pass, by which
he lost the benefit and profit of his colliery, and his coals were
deteriorated, is distinguishable from the present case in this^
that there it was laid with ?i. per quod., and the damage was well
set forth. Here the damage is not special; and even the general
damage is not connected by a per quod with the dam. Then
as to the effect of the verdict: It helps a cause of action or title
defectively set forth, but not where there is no title at all. In
the former case, the proof of such circumstances as are neces-
sary to complete the title imperfectly stated, may be presumed
to have been made at the trial; but if the plaintiff omits to state
his title altogether, it need not be proved, and cannot be pre-
sumed. Rushton V. Aspinall. (Ji) As where the scienter was
omitted in an action for keeping a bull that used to run at men,
the verdict did not cure. Buxendin v. Sharp, (c) Nothing is to
be presumed after verdict, but what is expressly stated in the
declaration, or what is necessarily implied from those facts
which are stated. Spieres v. Parker (d\ Bishop v. ^rt?/-
ward (e).,Stennellv. Hog-g (f). Here no special damage is
stated, nor can it be implied.

Dallas for the defendant in error. I ;igree there must be
special damage to support the action; but it is plain that the
declaration sets it forth. The meaning of lord Coie, Blackstone^
and other writers is, that while a common nuisance exists
merely as a danger, there no individual can have an action, as
all are in the same situation; but the instant a man is obliged to
take even a circuitous route, the damage is peculiar to himself,
because it is impossible that he sustains it in common with any
one. Accordingly the action was held good in Hart v. Bas-
set, {g) where the plaintiff declared that he had tithes in a cer-
tain parish, and a barn in which he intended to lay them, and
that the king's highway in B. was the direct way for carrying
the tithes to the barn; but that the defendant obstructed it with
a ditch, so that he was forced to carry them round about and in

(«) 1 Ld. Ray. 493. (c/) 1 D. & E. 141. (/) 1 Snund. 228. c.

(Z.) Doug. 638. (f^ 4 T) C- E 470 (^) 4 Vina: 519. pi. 7.

(r) 2 SaU. 662:

OF PENNSYLVANIA. 467

li more diffciilt way. The same was ultimately decided in 1808.

Iveson V. Moore, where HoWs opinion was reversed bv all the „

' ' - JriiiGHES

judges of the common pleas, and the barons of the exchequer, x'.

12 Mod. 269; and it is contradicted by no case but the nisi Hexser

prius decision of Hubert v. Groves. The distinction between

direct and consequential damages is therefore not law at this

day. An injury of any kind to person or property is a special

injury; and it is only material that the person suing has a

damage, which is not common to all others. Williams^s- ca;c. ((3)

The present however is stronger than any of these. Thi- raft

was impeded bv the dam, and it was impossible for the plaintift

to take it any other way. There is a material difference between

the obstruction of a road, and that of a river. In the one case

the traveller has his choice of a circuitous route; in the other the

raftman has no choice at all; the property cannot pass to market,

and special damage is inevitable. So that yielding the cases of

Hart V. Basset and Jvesori v. Moore^ the plaintiff" stands upon a

ground that is not shaken by any case. His cause of action is

also well laid. The declaration contains in strictness the per

quod; for it sets forth that by the dam he was prevented from

passing with his rafts; and it previously avers that he had come

to the dam, with the intention of navigating the river. Here is

a clear statement of special damage connected with its cause.

It must also have been pro\'ed upon tiie trial, or he could not

have recovered; and therefore the verdict is evidence of it.

Macmurdo v. Smith. (//) At all events it is necessarily implied

by the facts stated in the declaration; which brings it within all

the cases cited for the plaintiff in error.

The opinion of the court was delivered by

TiLGiiMAN C. J. This cause comes before the court on a.
writ of error to the common pleas of Berks county. It is an
action on the case for damages occasioned to Heiser the plain-
tiff below, who is defendant in error, by the defendant's obstruc-
ting the navigation f)f the Big Schui/lki//, which was made a
public highway l)y act of assembly.

The plaintiff in error contends that the declaration contains
no cause of action, l)ecausc it shews no special damage sustain-
ed by the plaintiff below.

(rt) 5 Pefi. 71 '/>) 7 D.iSf E. 52;3-.

468 CASKS IN THE SUPREME COURT

1808. ^ 'i^ general principle has been always agreed, that for an

Hl'ghes o^>struction to a highway, which is a common nuisance, an ac-
1,. ; tion cannot be suj)ported, but by a person who has suffered
Heiser. some special damage. But in the application of this rule to the
different cases which have arisen, there have been decisions
which are not to be reconciled. In Hart v. Basset {m Car. 2.)
sir T. Jones 156, an action was supported by a ))crson entitled
to receive tithes, who in consecjuence of an obstruction in the
liighway, was forced to carry his tithes by a circuitous route.
The declaration alleged that he was forced to carry them by a
longer and more difficult rvay^ and no other damage was shewn.
In Paine v. Partrich (3. Wm. and Mary) Carth. 194, the court
are made to say, that if by a common nuisance a man is delayed
in his journey, by reason whereof he is damnified, and some
important affair neglected, an action does not lie, because to
support an action the damage must be direct^ and not conse-
quential; as for instance, the loss of his horse^ or some corporal
hurt. Such seems to have been the opinion of C. J. Holt in
Iveson v. Moor^ (10 Wm. 3.) Carth. 451, where the plaintiff
alleged that he had a great quantity of coals (he being possess-
ed of a colliery and coal mine) which he was prevented from
carrying in his carls and carriages, by reason of an obstruction
in the highway raised by the defendant. One of the other jus-
tices of the king's bench agreed with Holt; but the two others
were against him. In consequence of this diff-rrence of opinion,
the case was laid before all the judges on a consultation in the
exchequer chamber, and they were of opinion the action lay.
IVilles Rep. 74: note a. In Chichester v. Lethbridge (11 Geo. 2.)
Willcs. 71. the plaintiff averred that at divers times between
two certain days, he was travelling in his coach in a certain
highway, but the defendant obstructed the said way by bars,
posts, trenches, &c. and in his proper person withstood the
plaintiff from removing and abating the obstruction, so that
the plaintiff then and hitherto could not and cannot Iwoe or use
the said xoay as he oitght^ to his damage forty pounds. The
court were of opinion, that particular damages were assigned
sufficient to support the action, and cited Hart v. Basset in
support of their opinion. They said, this case was stronger
than Hart v. Basset in two particulars, one of which was " that
" it was expressly laid that the plaintiff was attempting to tra-
■•' vel the road, but could not by reason of the obstructions."

or PENNSYLVANIA. 409-

This case of Chichester v. Lethbridge appears to be the last ad- 1808.
judged in England on the subject, prior to our revolution. Since "Tj , ^

the revolution, the case ol Hubert v. Graven (shortly reported ^^
in 1 Esp. 148.) has been adjudged in express contradiction to Heiser.
Hart V. Basset, This case ot Hubert v. Groves^ is no authority
here, and no I'urlher to be regarded tlian its intrinsic merit
demands. There is no occasion, however, to decide to which
of these cases the court inclines, because they think the case
before them stronger than either. The phiintiflhas averred that
he had procured a large quantity of boards and timber, and
made them into rafts to bring down the river; that he seized
the opportunity of a flood, and did come down as far as the
obstruction, and v/as there stopped by tlie obstruction. It is
certain that he must have suffered special damage, and the jury
have found so; and if he has, it is immaterial whether it was
immediate or consequential.

The court are of opinion, therefore, that the judgment in the
court below was rightly given for the plaintiff, and must be af-
firmed.

Judgment aflirmed.

Itj^ He I N H O L J) T ai(amst Al B £ R T I. Saturday.

*i o December

31st

T EV1\ upon a former day, obtained a rule upon the plaintiff i'l^^ authori.

to shew cause \\\\y a discontinuance should not be entered f^,|j^j^'s\^t^

in this suit; and now, upon the return of the rule, it appeared '^'""'^y 's

that the action uas l)rought to March term 1803, and that on].""/^reanuc'

the 14th March 1804, by order of the defendant's attorney, a'^'""^''^';''""'^

I r r 111 pros- with-

non pros, was entered ior want oi a narr^ agreeably to the;,,,^ the con.
r\\\c oi ZA September \\i(d2. Afterwards, on the 1st yr//«/«rj/ '*^."<^ of l""^
1806, the same attorney b)' writing agreed that the nonpros.
should be taken off. A declaration was filed on the same dav,
and the cause thus reinstated upon the docket.

The defendant's affidavit was then produced, stating that he
had been j)resent when the nonpros, was demanded, and that
shortly afterwards his attorney told him it was entered, and
the suit was at an end; that he had never been consulted as to
the revival of it; and that if he had been, he sliould have refused
his consent.

Vol. I. 3 O

T'.

Albeiiti.

470 CASES IN THE SUPUl'.ME COURT

1808. ll^pon these facts, Levy argued, tliat the noiiprofi. was taken

R^.iN^ off without any authority. He contended that I)y the judgment
iioLDT o{ non pros, the warrant of the defendant's attorney was at an
end; and that it was not competent to him to renew the suit
without a fresh retainer, which he never had. He cited the
SttU. r,f]Ve.slm. 2. c 10. 2 In.st. 377. to shew that the power of
the attorney terminates when the plea is determined; and Gitb,
Exec. 92. and Runn. on Ejec. 428., which are clear to the point,
that bv judgment against the defendant, the warrant of the
plaintiff's attorney determines, except so far as to suing out
execution within the year.

Barjies^ who was to have shewn cause, was stopped by the
court.

Per Curiam. We have no doubt. If the attornev has done
wrong, he is answerable for it. But undoubtedly by the prac-
tice of Pennsijlvania^ the authority of the defendant's attorney
is competent to restore an action after nonpros. The authority
of an attorney is not limited here in the same manner that it is it
in England. For a payment to the plaintiff's attorney, long after 2b ,
judgment, and without execution, has been held good upon ar- 2b j
gument. Let the rule be discharged. ob .j

Rule discharged, '^b <<

9s ,27;

Lessee of W a t s o n and Wife as^uinst Bailey and '.1= ' y^

Saturday, , ^ .^"^*b«i

December Othcrs. ^^"'^1

:Ust. 82 285

Bargain and * PPE AL from the circuit court of Lancaster county.
Mife's land -^^ '^^^^ w'lic of IVatson^ one of the lessors of the plaintiff,
li} husband claimed the premises in this ejectment, as heir at law of Mar-
mIk) bva garet Mercer^ in whom the title was formerly vested. The de-

_96 429

Mercer^ in virtue of
xecuted by her and

cnnificateof fendants also derived title from Margaret 3i

a jildprc- of , , ri • 1 1 r 1

the common ^ deed of bargam and sale of the premises, ex

pleas, indor- her husband James Mercer^ to Nathan Thompson^ on the 30th

sed on tlic

rlecd, *' por-

" sonally I'ppeared before liim, and aciiw-ivledged the indenture to be their act and deed, and

" ilesircd the same to ho recorded, she'6eing 'if full age, ami hy hitn examined apart," not

sufficient to pass the wife's estate.

Parol declarations of the wife that she executed the deed voluntarily, and if it was not
sufficient, would execute and acknowledge it again, or do any other act to make the deed
good, — inadmissible.

GF PENNSYLVANIA. 471

3/aj/ 1785, who on the same day conveyed to the husband, of 180S.
whom the defendants were heirs. On the dav the deed was ex-

Lessee
ecuted, the husband and wife appeared before a judge of the ^f

common pleas, who indorsed upon the deed the following cer- Watson

tificate: " Lancaster county ss. Personally appeared before me, ^'"

"the subscriber, one of the justices of the court of common

" pleas for the countv aforesaid, the widiln named yames JSler-

*'*' cer and Marsfarct his wile, and acknowledged the above

" written indenture to be their act and deed, and desired that

" the same might be recorded. Slie the said Margaret being of

'"''full age, and by me examined apart. In testimony whereof I

" have hereunto" set my hand and seal, this 30th day of May^

" anno Domini 1785."

The chief justice, before whom the cause was tried in May
1807, held that the acknowledgment was defective, and that
therefore the deed did not pass the estate of the wife. The de-
fendants then offered to produce evidence of parol declarations
by the wife, that she executed the deed voluntarily, and that if
it was not sufficient she would execute and acknowledge it over
again, or do any other act to make the deed good. The evi-
dence was iield to be inadmissible; and the jury found for the
plaintilF. A motion was then made for a new trial, which was
refused; and the defendants appealed to this court.

The act of assembly, upon which the main question turned,
was passed the 24th February 1770, and is entitled " an Act for
" the better confirmation of the estates of persons holding or
" claiming under feme coverts, and tir establishing u mode by
" which husband and wife may hereafter convey their estates."
The preamble to the 1st sect, recites, that it had been thereto-
fore the usage, ever since the settlement of the province, in
transferring the estates of femes covert, in many cases lor tlie
husl)and and wife to execute the conveyance in the presence of
witnesses only, and in other cases, after such execution to ac-
knowledge the same before a justice of the peace, or ajudgeof
the common pleas or supreme court, the wife being scparat*
and aj)art from her husband examined; whereby a great num-
ber oi bona fide jjurchasers, for a valuable consideration, under
such conveyances, were then become the just and equitable
owners and possessors of such estates; and as doubts had arisen
whether such deeds were valid in law to pass the estate of the
wife in the lands inteudtxi to be transferred by the said deeds,

Bailey.

472 CASES IN THE SUPREME COURT

1808. it therefore enacts that no conveyance whatsoever theretofore

J bo7ia fide made by husband and wife in manner aforesaid, of

I^essce 1 ■

of any lands, tenements, or hereditaments whatsoever, should be

Watson deemed defective; but that the same should be valid in law for
transferring and passing the estates, rights, titles, and interests
of such husband and wife, according to the true intent and
meaning of the words thereof. The 2d section is as follows:
" And in order to establish a mode by which husband and wife
may hereafter convey the estate of theivtfe^ be it enacted, tiiat
where any husband and wife shall hereafter incline to dispose
of and convey the estate of the wife, or her right of in^ or tOy
any lands, &c. it shall and may be lawful to and for the said
husband and wife, to make, seal, Stc. any grant, bargain and
sale, &c. for the lands, &c. intended to be by them passed and
conveyed; and after such execution, to appear before one of
the judges of the supreme court, or before any justice of the
county court of common pleas, of and for the county where
such lands, &c. lie, and to acknowledge the said deed or con-
veyance; which judge or justice shall, and he is hereby autho-
rized and required to, take such acknowledgment; in doing
whereof, he shall examine the wife sej^arate and apart from her
husband^ and shall read or otherwise make known the full con-
tents of such deed or conveyance to the saidxvife; and if upon
such separate examination^ she shall declare that she did volun-
tarily^ and of her own free will and accord^ seal^ and as her act
and deed deliver^ the said deed or conveyance^ without any coer-
cion or compidsion of her -^aid husband^ every such deed or con-
veyance shall be, and the sam<; is hereby declared to be, good
and valid in law, to all intents and purposes, as if the said wife
had been sole, and not covert, at the time of such sealing and
delivery; any law, usage, and custom, to the contrary in anv
wise notwiihsianding." 1 St. Laivs. 536.

MoJitgomery and Tilghman for the appellants. The act of 1 770
makes no distinction between deeds to pass the wife's contingent
right of dower, and deeds to pass her separate estate; it includes
both. The present question is therefore of vast importance; be-
cause, however in some instances the ceremoniesof thislawhave
been complied with in deeds to pass her estate, it is notorious that
the present form of certificate is almost universally indorsed
upon deeds to bar her dower. This fact is material to shew the

OF PENNSYLVANIA. 473

true meaning of the act of 1770. The preamble recites an ex- 1808.
isting usage for femes covert to pass their estates by a simple Lggg^g
bargain and sale before witnesses; and another usage to pass of
them by deed and acknowledgment, the wife upon such ac- Watson
knowledgment being examined apart from her husband, without ^''
more. The former usage had been sanctioned by a judicial de-
cision in Lloyd's Lessee v. Taylor^ (a) and the latter in Davy v.
Tur?ier. (b) In the one there was no acknowledgment or sepa-
rate examination; in the other there was an examination apart,
-^vhich included a communication of the contents to the wife. The
1st section of this act sanctions all deeds in conformity to either
usage; and by the second section it confirms and establishes
that usage under which married women passed their estate or
right in land by deed, with an acknowledgment and examina-
tion apart. By confirming this usage, and making it written
law as to all subsequent conveyances, it adopted and legalized
that form of certificate which had been before used by the ma-
gistrate in similar cases; and accordingly, to this day, the lorm
has undergone litde or no change ; and very many titles are now
derived from femes covert under no other evidence than the
defendants have shewn. This practice since the law, universal
as to conveyances by which the wife has passed her dower, and
very general as to those by which she has passed her fee, is
irresistible evidence of a known intention in the legislature to
make no change in the mode of pursuing the usage they con-
firmed. This is one view of the subject. But take it as a mode
of conveyance devised by the act. What does the act direct?
That the justice shall do certain things; but not that he shall
recite all he does. He has said enough to shew that the sub-
stance of the act has been satisfied. The acknowledgment
by the wife, that the indenture was her act and deed, and
her examination apart from her husband, which is coupled
with this acknowledgment, shewing the one to have been
made during the other, arc well set out. The only thing
wanting is, that he made known to her the contents; and this is
to be presumed. In the first place, this was necessary by the
usage before the act; and yet in Davy v. Turner^ where it was
not set out by the indorstment, the usage was held to have
h«'cn pursued. In the next place it is a principle, that when

(rt) 1 Dall \7 (l>) 1 Dall.n.

474 CASES IN THE SUPREME COURT

1808. the law trusts to a judicial officer the power to do a certain

Lggg^jg particular, and he certifies he has done it, every thing forming

of that jiarticular is presumed to have been done. Illustrations of

Watson this principle are found in 19 Vincr 187. pL 1. 39 i,'. 3. 7. Bro.

^'* Action on the ease pU 67. Now he has certified the separate
Bailey. . . i • i , i ,

examuiation, which mcludes the makmg known the contents,

and her declaration that she acts without coercion. These are
parts of one ceremony; and the whole being certified, the
question is simply whether the parts are included. Credit is to
be given to justices of the peace, that they have done right in
the execution of their power. The presumption is in their fa-
vour. The Slueen v. Simpson, (a) Here there is enough to
shew that the judge had the act in his eye; and if it cannot be
presumed that he did his duty, nothing short of a full state-
ment of particulars will answer; and then not one title in fifty-
can stand. At all events if the court is to presume that he did
not do his duty, the declarations of the wife should have been
received to rebut the presumption.

Hopkins for the appellee. Whatever in common cases may
be the presumption in favour of justices, none is ever made to
give validity to the deed of a married woman; for the general
presumption being that such a deed is void, it is essential that
those things which constitute its validity, should plainly appear
along with it. Hence when she joins in a fine, and undergoes a
separate examination by writ, the examination is not presumed
to have been correct, from any short minute of the judge; but
it must itself always appear upon the writ, and be its own evi-
dence. 2 Inst. 515. The usage before the act of 1770 took the
place of a fine to save expense; but from the looseness of the
usage, doubts were entertained whether the conveyances under
it were valid. The legislature supposed them to have passed
at most but an equitable title; and they were confirmed only in
favour of purchasers for a valuable considei-ation. Taking this
case then upon the foot of usage, the defendant's title is defec-
tive. They are not purchasers for a valuable consideration; but
the deed of the husband and wife was a mere instrument to fix
the fee in the husband. The dispute is between the hceres natus
and the ha'res f actus; and equity will never aid a defective con-

(a) 10 Mod. 382.

OF PENNSYLVANIA. 475

veyance to transfer an estate from the former to the latter. The 1808.

act however, instead of estabhshing the usage even for the past j

time, merelv confirms certain deeds under it, and bv the second q(

section abolishes it for ever, by directing a new and explicit Watson

rule for the future. The preamble is verv plain; it is to establish ^•

. ' Bailey.

a mode by which husband and wife may hereafter convey the

estate of the xvife. Deeds to bar dower are therefore not in-
cluded j and they may be safe under the old form of acknow-
ledgment. The ceremony on the wife's part is the same that is
required in a fine; and it should therefore be as explicitly en-
tered on the deed. That a certificate of its performance is ne-
cessary, has not been denied; the only question then is, what
does the present certificate contain. The joint acknowledgment
is nothing; for the wife's is to be separate and apart from the
husband. There is therefore no acknowledgment by the wife.
The contents are to be made known to her; this does not
appear. She is to declare that her acknowledgment is not the
effect of coercion or compulsion; this does not appear; and
these are of the very essence of the acknowledgment. It is not
even certified that she was examined separate and apartyr;?;;?
her husband. The act did not intend that the court should sup-
ply a defective certificate by conjecture and inference. Abuse's
of the husband's power, and collusion with the magistrate,
Were both to be guarded against; and it is obvious that such
a certificate as this may be true in every part, and yet the act
entirely defeated. If the contents are presumed to have been
made known, and the requisite declarations to have come
from the wife, it is idle to make a record of any part of the
proceeding; a mere certificate, that the parties had been before
the justice, would be sufficient ground for presumption. As to
coupling the acknowledgment with the sej)arate exaniinalion,
it is impossible, because the acknowledgment is joint; and this
furnishes another answer to the doctrine of presumption,
namely, that where a magistrate sets out a proceeding mani-
festly defective, the law is not at liberty to presume that he has
done right in the execution of his power; he may have had the
law in his eye; but he has either misunderstood or disregarded
it. A usage, since the act, to convey all the estates of married
women in Pennsylvania, by such a deed and acknowledgment,
would not weigh a straw against the act of assemlily. vVs to the
declarations, if the certificate is bad, it is as none; and then (he

476 CASES IN THE SUPREME COURT

1808. declarations can never amount to an acknowledgment. What

; "the wife savs upon the subject must be said before the proper

QJ- officer apart from her husband, and be so certified. The law

Watson respects her interest too much to allow any weight to declara-

^'" tions elsewhere.
Uailet.

Rcplij. It is too strong to say that an universal usage for
such an acknowledgment would not weigh a straw. If a usage
could repeal the common law, how much more should it avail,
when it affects the mere construction of a law. Lord Coke
says usage has prevailed even against magna charta. 2 Inst. 28.
We do not ask for aid to a defective conveyance; though if we
did, the objection would have no weight; for the enacting clause
of the first section goes further than the preamble, and confirms
the estates of purchasers and all others; and in Davy v. Turner
the husband himself was the defendant, and in Lloyd^s Les-
see v. Taylor a purchaser under a judgment against the hus-
band. The whole is a question of law, whether, as the act does
not require the justice to set forth the particulars, he is bound
to do it. The enacting clause of the second section also goes
further than the preamble; it establishes a mode of conveying
the wife's right of^ in^ or to^ any lands, which includes dower;
andtherefore our objection is not answered. Examined apart is a
technical phrase, to which time has appiopriated a comprehen-
sive meaning of all that the act requires; it is apart from every
body, and therefore apart from the husband. As to collu-
sion with the magistrate, it is more likely to end in a formal
certificate than otherwise; it is certainly not prevented by one
more than the other. Ut res magis valeat quam pereat^thc deed
should be confirmed, unless the law is imperative.

Yeates J. This is an appeal from the decision of the cir-
cuit court of Lancaster county, overruling a motion for a new

mal.

The facts of the case are shortly these. .SaroA, one of the lessors
of the plaintiff, claimed as the sister and heir at law oi Marga-
ret Mercer^ who died without having had issue by her husband
James Mercer. Mrs. Mercer was seised of the lands in her
own right. On the 30th May 1785, James Mercer and Mar-
garet his wife executed a conveyance of the premises to Nathan
Thompson in fee simple, in consideration of eight hundred

OF PENNSYLVANIA. 47^

pounds, and on the same day as is indorsed on the deed they igOS.
appeared before Henrij Slmjmaker^ one of the justices of the Lessee""
court of common pleas for Lancaster count)', and " acknow- of
" ledged the within written indenture to be their act and deed, Watson
" and desired that as such the same might be recorded; she the „ '"'
" said Margaret being of full age and by the said justice ex-
" amined apart. This the justice certified under his hand and
" seal."

If this conveyance devested the said Margaret Mercer of hef
legal title to the lands, the plaintiff was not entitled to recover
them, and the defendants would be entitled to a new trial. The
validity of the conveyance, it is agreed, depends upon the true
construction of the act of assembly, passed on the 24th Fehntarij
1770, entitled "• an act for the better confirmation of the estates
" of persons holding or claiming under femes covert, and for
" establishing a mode by which husband and wife may hereaf-
" ter convey their estates." 1 St. Lazus 535.

The preamble of the act recites that " it had been theretofore
" the custom and usage ever since the settlement of this jjro-
" vince in transferring the estates of femes covert, in many
" cases, for the husband and wife to execute the deed or con-
" veyance in the presence of witnesses only; and in other cases,
" after such execution to acknowledge the same, the said wife
*' being separate and apart from her husband examined; by
" means whereof a verv great number of bona fide purchasers
" for a valuable consideration had become the just and ecjuita-
" ble owners and possessors of such estates." It then goes on to
provide that such grants, deeds, &c. thereto/ore bona fide made
and executed by husband and wife in manner aforesaid, shall
be good and valid in law.

There can be no doubt that the decisions in this court, in thir
Lesser of Davij and wife \. Turuer in September term 1764»
where there was an acknowledgment by baron and feme, and
which was carried by appeal to the king in council, (1 Da//. 11.)
and in L/otjd's Lessee v. Taij/or^ in AprU 1 7()8, where there
was no acknowledgment (I Da//. 17.), gave l)irth to this law.
These decisions were founded on a principle highly conduciw
to the peace of society, that comnmnis error facH jus.

The law, having in the first section put such bona fide pur-
chasers in a state of perfect security, proceeds to establish a
rule for future cases. It declares that " where any husband and

Vol.. I. 3 p

478 CASKS IN Tin: SUPRKMi: COUR'i'

1808. '' Wiic shall thcrcaj'tfr incline to dispose of and convey tlic eS'-

1 " tate of the wife or her right of" in or to any lands, tenements

of " or hereditaments whatsoever," it shall and may be lawful for

Watson the husband and wife to execute any grant &C., and to acknow-

,. ^ ■ ledge the same in the mode pointed out by the act, which is

thereby declared to be good and valid in law to all intents and

purposes, as if the said wife had been sole and not covert.

It has been contended that the acknowledgment, herein
directed, extends to such deeds wherein the wife joins the hus-
band to bar her of doAver, equally with those which she before
held in her own right; and that a practice, founded on the for-
mer loose mode of taking acknowledgments, has been conti-
nued; which it would be highly mischievous and inconvenient
now to impeach; and that common usage has expounded the
act.

If the first remark rested on solid grounds, I should long-
pause, before I adopted a construction which eventually might
unsettle many estates. The maxim of " commimis error facit
'"'■ jus'^ has great weight with me, where the most injurious con-
sequences would flow from counteracting it. I admit that the
words standing by themselves might, from their generality, be
supposed to comprehend cases wherein the wife releases her
contingent interest of dower; but the whole section must be
read together, in order to collect the true meaning of the legis-
lature. Thev distinctly express their intention, and the object of
their provision, in the beginning of the sentence thus: " And in
" order to establish a mode by which husband and wife may
" hereafter convey the estate of the ivife^ be it enacted &c." The
words therefore " such deedl^'' which are twice mentioned in the
subsequent part of the section, evidently refer to deeds,
whereby the estate of the wife is conveyed, and no other. This
law had two distinct objects in view: the quieting and securing
the titles of purchasers of the lands of married women, under
the ancient usage, and prescribing a new method of conveying
them, instead of the tedious and expensive ceremony of fines at
x;ommon law; and both the title and preamble of the act strongly
negative the construction set up by the defendants' counsel. I
cannot therefore bring mvself to believe, that the law under
consideration had any effect on the acknowledgments pointed
out by the act of 1715. 1 .SY. Laxvs 109. " No doubts had
" arisen whether deeds so acknowledged were not sufficiently

OF PENNSYLVANIA. 479

'* valid in law to transfei- and pass the possible interest of. the 1808.
" wife," in case she survived her husband, to lands held by him Lessee
during the intermarriage. The act of 18th March 1775, 1 St. of
Lcnus 703. entitled " a supplement to the act entitled an act ^^ atson.
" for acknowledging and recording of deeds," also points out n . tley.
acknowledgments, without prescribing their form. I presume
it will not be contended, that the words of the act of 1770, as
to acknowledgments, are adopted by this latter act. Thinking
then, as I do, that this law of 24th February 1770 is suscept-
ible of no other construction than that which I have mentioned,
if I am correct therein, the mischievous consequences, which
it is apprehended may flow from the usual mode of taking ac-
knowledgments, cannot arise. It is by no means a very gene-
)al practice for married women to transfer the lands which
they hold in their own right; and the acknowledgments of such
convevanccs have in general been correct.

I do not take a literal strict adherence to the very words of
the act, to be essentially necessary in these cases; but the sub-
stantial requisites, by which the rights of married women were
intended to be guarded by the legislature, should be pursued,
l^ord Hardxvickc has somewhere said, that the wife may be in-
timidated l>y cruelty on the part of the husband, as well as se-
duced by his flattery and extreme kindness, to do acts, which,
on more mature deliberation, she would totally disapprove of.
In this acknowledgment, her consent to the deed is not express-
ed by the justice, which alone could give it ^'alidity, without
adverting to smaller matters. We may regret that the unskil-
fulness or negligence of the scrivener has led to this error; but
we are bound to say, ita lex scr'ipla est; and the party must
abide by the consequences of his own acts.

It has been contended that we should give credit to a certi-
ficate of a judge of the common pleas, in the execution ol his
powers; and he having certified here that lie had taken the
acknowledgmint, omnia pra-.suimtntur esse rite aria: and that
parol testimony was oflered to tlie circuit court ol ihe declara-
tions of jMrs. Mercer^ at other limes, of her ])erfect freedom of
will in executing tlie conveyance; and that she would join in
any other act in confirmation of her deed. This, it is said,
comes in aid of the legal presumption, and removes every pre-
sumption to the contrary . To this I answer, she should have
appeared before a projier tribunal, aijfl declared her consent

480 CASES IN THE SUPHEME COURT

1808. separate and apart from her husband, in the manner pointed out

£^^,^^^.^. by the laws of the country. Such parol testimonj' ought not to

of be received. It leads to great uncertainty and mischiefs in tra-

Watson (>jr,g tides to real estates at a distant day. Our law is a system

T, ^ ■ of nolicv. It is adapted to our local situation and the common

uAILEV* ' - II- • 1

safety. In England^ the rights of a married Avoman to lands,
can only be passed by the medium of a fine. Her examination
must ever appear on the writ; and if the judge doubts of her
age, he may examine her upon oath. 2 Inst. 515. These regu-
lations guard the interests of the wife, as far as human prudence
can effect that object. The act of 1715 directs that the justice
shall certify the ackno7vledgment or proof on the back of the
deed, under his hand and seal, together with tlic day and year
%vhen the same was made. The act of 24lh February 1770 ev-
idently points to the same mode of certificate; and an important
trustis confided to the judge or justice before whom the acknow-
ledgment is made. The justice of the court of common pleas has
not conformed himself to the directions of the law " establish-
" ing a mode by which husband and wife may convey the es-
" tate of the wife," but has materially and substantially failed
therein. The provision was introduced as a substitute for a
fine, which if not pursued, the deed was not validated by the
act.

In the present instance, the intention evidently was to devest
the wife of her kgal right in the lands, and vest it in the hus-
band; and if, in any case, a court of justice would insist on at
least a substantial adherence to the manner of acknowledgment
prescribed by the law, it would be in such a one as is now be-
fore us. The conveyance from Mercer and wife to Thompson^
and the reconveyance of Thompson to Mercer^ bear equal dates,
and are acknowledged on the same day before the same jus-
tice, and contain the same consideration money of eight hun-
dred pounds.

I am therefore of opinion that this deed had no legal effect
against the heir at law, after the death of the wife; that the pa-
rol testimony was inadmissible in aid of the defective acknow-
ledgment; and that the decision of the circuit court be affirmed.

Smith J. concurred.

Brackf.nridge J. took no part in the cause, having on the
circuit ruled the point differently from the chief justice.

Judgment affirmod.

) 481
502

OF PENNSYLVANIA. 481

1808.

Crawford a gams f B a r r v . December

3 1st.
^C IRE facias against a (farn'ishee. A foreign attachment Upon the

against Thomas O'Gormond was laid at the suit of the "'^* °[o""5f.
plaintiff, in March 1803, upon certain goods, consisting oi facias
chairs and cabinet ware, in the hands of the defendant; and ^^J";^y^ ^^^
after judgment against the principal, and an inquisition of da-tliejurx must
mages, this action was brought against the garnishee. He ^^^^ g,',„ds^
pleaded nulla bona; and at a nisi prius before Teatcs J. in No-'m the p^arni-
vember last, the jury, who had never seen the goods, found ^^.^.^ji'^t

that there were effects in the hands of the defendant to the finding ef-

fccts ofii ccr-
value of 801 dolls. 30 cents. tain value in

the defencl-

Levy^ for the defendant, moved the court to set aside the 'j^^^.^^^'g^^i^^lj.
verdict, and to grant a new trial, for several reasons; but the they iind the
material one was, that the jury were bound to find the speci--^"^^^^J^|^'^j!i^j
fie goods or effects in the garnishee's hands, and had no their value,
right, by a general verdict, to deprive him of the benefit of ,,^,^^5,';^^, „f
handing them over, in his own discharge to the plaintiff. a special jo-

in support of his motion he now cited the act of 1705, 1 St. '
Lari's 60.; the 2d section of which directs, that " if an attach-
*■' ment shall be made for goods or effects, and the garnishee
'• plead he had no goods or effects in his hands at the time of
" the attachment or at any time after, and the plaintiff prove
" the contrary', the jury in such case, iieing satisfied that the
" proof is plain and full, shall find for the plaintiff, and say
" ivhat goods or fjf'ects they find in the garnishee''^ hands;
" whereupon judgment shall i)c entered, that appraisement
" may be made of the said goods or effects so found by the
"jury, and a precept shall be granted, requiring the sherifl to
*' get ihtm appraised ; and if the garnishee ivill not producr
" them, then execution shall be forthwith awarded for the va-
" lue thereof, according to appraisement, to be levied upon
" the lands, tenements, goods and chattels of the garnishee."
He argued that by this law it is clear, that the garnishee is
answerable for the value, only in the event of a refusal to de-
liver the goods; that the office of the jury is limited to a find-
ing of the specific goods and effects, preparatory to an ap-
praisement by another tribunal; anrl that c.yrn after thf

482 CASES IN THE SUPREME COURT

1808. appraisement, it is competent to tlic defendant to prevent
(T^""^^^^^ execution, by giving up the property attached. I'he propriety
-J, of the hiw is obvious. The garnishee may be justified in va-

Bahry. rious ways, in pleading nulla bona. He may contend that the
goods were sold to him; that he sold them and was never paid
for them; that they belong to a third person, and the like; and
yet if the decision is against him, he may prefer a surrender
of the goods, to payment of their value. The law, therefore,
contemplating him merely as a stakeholder, and perceiving
that it would be contrary to the first principles of justice, either
to deprive him of a full defence, or to make him a purchaser
of the goods against his will, allows him an alternative after
the plea is decided against him. The present verdict takes it
away. The law makes him a debtor only after refusal to deli-
ver the goods; this verdict makes him so, without a demand,
and in spite of a tender. Whatever may have been the prac-
tice under the act, it cannot repeal a provision so express. In
fact a judgment upon such a verdict would be erroneous; it
would be for the money; whereas the judgment should be
qiiodjiat appretuitio; such is the direction of the law, and such
is the uniform practice under the custom of London^ from
which the law is borrowed. Lex Londinensis 35. Citii Liber'
ties 14. Privilegia Lond. 257. The hardship too of the pre-
sent case is grievous. The jury never saw the goods, and have
given 800 df)llars, for what are not worth fiftv. Now that the
plea is found against him, the defendant do<'s not wish to keep
them; and they shall be delivered over immediately, upon
condition that the verdict be released.

Raiule contra. An instance of appraisement by a special in-
quest, under the attachment law, has never been known. The
jur\' who try the issue, find the value, which saves both time
and expense; and if the practice has not arisen under a law of
ir22, 1 St. Larvs 185, which empowers the court, upon giving
any interlocutory judgment, to charge a jury at the bar to as-
sess the damages, it is so completely within the spirit of it, as
to have its sanction. It is also the practice in London^ accord-
ing to the case of Pearsc v. Calcott^ (a) which says that the
\alue ought to be found before judgment. It will not answer
at this day to take up the law in question, without the practice

(a) Sir W. yones. ^6.

OF PENNSYLVANIA. 48-3

vmder it. No law has been more extended by constructio-n. 1808.
The very proceeding by scire facias is not to be found in itS(_;j^^^^.pQj^jj
letter; but it has been adopted as the best mode of enforcing v:
its principles. It becomes then a question, what is the spirit of Baury.
the law in application to this case. The garnishee, contrary to
his dutv, retains the goods long after the attachment, and sup-
ports his possession by a plea which is false. In the mean time
the goods diminish in value, or perish entirely ; and then he
claims a release from the attachment, upon delivering the da-
maged articles, or upon delivering nothing, in case they have
perished. That such a claim cannot be supported, seems mani-
fest; it would be rewarding a breach of duty. How is it to be
defeated, and the justice of the case attained? Not by an ap-
praisement after verdict, for that must follow the value at the
time of appraisement; no other fact is submitted to the ap-
praisers. There is no way, but to leave it with the jury, who
decide upon the truth of the plea, who receive evidence of the
delay, and of its effect upon the goods attached; and therefore
if the principle of the garnishee's liability beyond the value at
the time of verdict be adopted, they must be entitled to fix its
extent; and the amount of the present verdict forms no objec-
tion. But it is said the jury must, at all events, find the speci-
fic articles. 'I'he necessity of finding the goods is at an end,
if the garnishee has no right to deliver them up in satisfaction.
But in addition to this, the jury have very inadequate means
of forming such a report; the facts rest in the knovviedge of
the garnishee; and although, by an act of assembly, the plain-
tiff may examine him upon oath, it is a proceeding to whicii
it is sometimes very dangerous to resort. The objection to
such a finding should come from the plaintifl", and not from the
defendant.

Tir.dHMAN C. J. Tliis case coiues before us on a motion fu
the defendant for a new trial. The defendant is garnishee ilj
a foreign attachment against Vhomas O^Gormond. The plaintifl
having established his cause of action against O''(iormond^ b\
a writ of in(|uiry of damages, issued a scire facias against the
defendant, who appeared and pleaded nulla bona, upon whic.li
issue was joined. The jury found that ilie defendant had
goods of O^dormrjiid in his hands to the value of eight hundred

484 CASES IN TUK SUPHEMK COURT

1808. and one dollars and thirt} cents, but did not say what these
7; croods were.

CRAWFOUn°

1,, The defendant, in support of his motion for a new trial, has

Baury. urged several reasons; but the principal one is this, that the
jur.v have greatly overvalutd the goods, and by not finding
what they were, have deprived him of the benefit, which the
law allows him, of delivering them up to the plaintiff, instead
of paying the estimated value. He has offered to deliver to the
plaintiff all the goods in his possession; but the plaintiff de-
clines to receive them, and insists on having the amount of
the jury's valuation in money.

It does not appear that this point has ever been brought
before the court. It is probable, that in most cases the garni-
shee has either given up the goods without contest, or a debt
due from the garnishee has been attached; in which case there
would be no goods to give up. The court must now decide
the construction of the attachment act, which was made so
long ago as the year 1 705. By the second section of this act,
(1 St. Laws 60.) it is enacted, that " if an attachment shall
*' be made of goods or effects, and the garnishee plead he had
*' no goods or effects in his hands at the time of the attach-
" ment, or any time after, and the plaintiff prove the contrarj^
*' the jury in such case, being satisfied that the proof is plaia
** and full, shall find for the plaintiff, and say what goods or
" effects thetj find in the garnishee's hands; whereupon judg-
" ment shall be entered that appraisement may be made of
" the same goods or effects so found by the jury, and a pre-
" ccpt shall be granted, requiring the sheriff to get the same
^' appraisedj and if the garnishee will not produce them., then,
" execution shall be forthwith awarded for the value thereof
" according to the appraise}nent^ to be levied upon the lands
" and tenements, goods and chattels of the garnishee." By
the Jburth section it is provided that after judgment obtained
by the plaintiff, he shall, before sale and after execution ig
awarded^ find security that if the defendant in the attachment
shall within a year and a day come into court, and disprove
the debt recovered by the plaintiff against him, or discharge
the same with costs, that then the plaintiff shall restore the
said goods or the value thereof.

It seems extremely clear that the object of this law was to
procure for the plaintiff, sa;isfaction of his debt out of the

OF PENNSYLVANIA. 485

goods of the defendant; and that the garnishee was not to be 1808.
liable, unless he refused to produce those goods after it had 7. "

been found by verdict that they were the property of the de- ^.
fendant. The jury are expressly directed to say what goods or Baruy.
effects they find in the garnishee's hands, in order that an ap-
praisement may be made of them. It seems to have been the
practice for the jurij to value or appraise the goods; and to
this I see no objection, although not strictly conformable to
the act, because it saves the expense of a writ of appraisement.
But there is no authority for the jury, by any mode of finding,
to take from the garnishee the right of surrendering the goods
and discharging himself from the obligation of paying the
value. There is not one word in the act, which looks like an
intent to charge the garnishee if he offers to produce the
goods. The plaintiff's counsel have argued that it is extremely
difficult to prove exactly what the goods are. This is verv true;
and to assist the plaintiff in that respect, it is provided by the
act of 28th September 1789, (2 St. Laws 733) that interroga-
tories may be administered to the garnishee, which he shall
answer on oath. It is objected that the plaintiff may have no
confidence in his oath. To this I can only say, that if the
plaintiff will go to trial, without taking the examination of the
garnishee, and without satisfactory evidence to prove that the
goods in his hands are the property of the defendant, and to
shew what the goods are, he has no right to expect a verdict
in his favour; because he affords the jury no sufficient ground
to discharge the duty required of them by law.

If the plaintiff will accept the goods offered by the garni-
shee, there will be no occasion for another trial. If he will not,
I am of opinion that there should be, a new trial to supply the
defect of this verdict.

Yeates J., Smii'h J., and Hrackenridge J. concurred.

New trial nisi.
Vol. I. 3 Q

486 CASES IN THE SUPREME COURT

18 08.
SattOiiay, Lessee of Hill against W^est and others.

Dcci lubcr "

olSl.

After suii A ^ amicable ejectment was brought by the plainlifF against
bivujj:ht, one iX ti^e defendants, to H/arch term 1798 of this court, for

<n till' lU"-

ionilants some lots in Pliilaflelphin^ with a view, by trying the title, to
(Ill's, ami determine to which partv the commonwealth should grant a
is entered patent. A casc was finally made for the opinion of the court;
at^amst both .jjj^^l j^fj^,^ argument it was decided for the plaintiff, bv three

Error is . ^ . .

brought to a judges agamst one, and a judgment entered accordingly at

superior December term 1804. A writ of error was brought to the high
court, • c .

where the court; but tor want of an agreement below to turn the case into

writ IS non ^ special verdict, the defendants lost the benefit of their writ,

pressed; r ^ '

and ilun up- and suffered a now /?;-05. They then brought error coratn voh'iSy
on error ^^^ assigned for error the death oi Nicholas ToiinsTt one of the

coram voois, ° "^ '

t! e death of defendants, in August 1798.

one of the

defendants

before judg- Hallowell^ on a former day, obtained a rule to shew cause why
nrient, as- ^j^^ record should not be amended by entering at this time

signed. _ .

Amendment a suggestion of the defendant's death, with the same effect as it
permitted, j^. j^^^ i^^^^,^ ^1^^^^ before judgment.

by entering" a .to

suggestion In support of the rule, he now argued that it was a naatter of
fend int'l' course to permit an amendment of this kind to attain the real
death, with justice of the case. The stage of the cause at which the motion

tl e same ef- • ... . ' ^ r i^ l i^

feet as if it ^^ made IS immaterial; lor amendments may be made at any
had been time, if the record is in court; as, after error from a court in Ire-
t'udL'-mcnt l^ind to a court in England; Clements v. Walker (a), or from a base
court to a superior one. Z)rt?//^6'r.?v. Pender (U). So after error for
a verdict and judgment beyond the damages in the declaration,
there may be an amendmentby remittitur; Pickwoodv.Wrightfc)^
Fury y. Stone (d);7ind the/?o.9^f«maybe amended by the judge's
notts; Doe V. Perkins (^e^. This very kind of amendment has been
allowed. As where one of two plaintiffs died before interlocutory
judgment, and the suit went on to execution in the name of
both; after a motion to set aside the proceedings for irregula-
rity, a suggestion of the death was permitted on the roll. Ne-wn-
ham V. Laxv.{f) The case of Hamiltonv, HoUomh (^g) is in
point. The judgment was against two defendants, one being
dead; error coram vobis brought, and amendment allowed.

(a) 4 Burr. 2157. (d) 2 DjIL 185. (/) S D. & E. 577.

{b) 1 WiU. 337. (e) 3 D. CV E. 749. (^0 yohmon'-^ cases 29

(rMJI. Blaci. 643.

OF PENNSYLVANIA.

Dallas and Ingersolly contra, admitted that amendments were
generally subject to the discretion of the court; but that they"
were allowed only to attain thejustice of the case; and that, in
granting them, the court always seize upon equitable circum-
stances. They contended that the present amendment should
therefore not be permitted, unless the party consented to
terms. There was a difference of opinion among the judges
of this court upon the merits; and the defendants lost the be-
nefit of a revision, by an accidental omission in the case stated.
They can never enjoy it, imless a reargumentis made a condi-
tion of the amendment. And without such a condition, the
amendment will not come within the spirit of the rule, under
which all amendments are made; for equitable circumstances
will be disregarded, and the justice of the case will not be at-
tained. No case, however, except that of Ha/ni/ton v. Holcomb
from New York^ has ever gone so far as to allow the insertion
of a new fact after error coram vobin. And the case of Newn-
ham V. Laxv^ there relied upon as in point, certainly is not in
point; for error was not brought.

Rawle in reply. The end of the amendment is to support the
substantial justice of the case; which certainly is no way aflected
by one of the defendants dying before judgment. If we are to
belaid under terms, it must be because justice demands it. But
what justice is there in granting a second argument, when the
court itself did not ask it, and upon a full hearing decided three
to one? If it were done in this case, amendments after verdict
could never be obtained without consenting to a new trial. The
power of the court is almost self-evident. Bringing error does
not prevent amendments; this is a settled principle. An amend-
ment may be made consisting of this kind of new fact, accord-
ing to Ncxvniunn v. Law. This is also settled. It follows then,
necessarily, that bringing error does not prevent an amentlinent
consisting of this new fact: that is the death of one defendant
before judgment.

TiLGiiMAN C. J. dilivered the court's opinion.

This is a motion to amend the record by entering a suggcs
tion of the death oi Nkliolaa Toun^, one of the defendants, who
died before the judgment.

487

1808.

Lessee
of

HiLt

X'.

West;

488 CASES IN THE SUPREME COURT

1 808. The cases cited in support of the motion arc sufficient to shew

, the power of the court; and it is a power which, generally

of speaking, tends very much to the promotion of justice, iiut the

Hill defendants' counsel contend that it ought not to be exercised

,-,^'* in this instance, because it tends to injustice. And how do

W EST.

they shew this? Why by proving that when they carried this
cause to the lute high court ot errors, they were prevented
from arguing the merits, because the case suited^ on which this
court decided, did not appear on the record. This being the
case, they think it hard that they should not have a second ar-
gument. As the case was fully argued, and deliberately deci-
ded in the time of the late chief justice Shipptn^ the court can-
not suppose thiit there is any thing like hardship in the de-
fendants being bound bv that decision. We must look to the
consequences of the precedents we establish. If terms of this
kind are imposed on the plaintiff in this action, with what
propriety can they be refused in the numerous cases which
must occur where amendments in form are asked after a
trial of the merits? The court feel themselves bound to
adopt amendments of this nature, as far as is consistent with
their lawful authority. Nor will they be disposed to fetter
them with conditions, except in extraordinary cases. They
are of opinion in this case that the rule should be made
absolute.
< . ^ Rule absolute.

^ / h h^

Santrda\, LcSSCC of Dl LWOR TH 2iX\di OthtYS, aS^ttltlSt SiNDERLING

t)cc ''

31st

December , t Jl* .

and Lewis. ^---^

It is now a X) Y Consent of parties, judgment was entered for the plain-

that interest "^^ *'^ ^^ ^^'^ ejectment, subject to the payment of such sum
is recover- of money as should be found due to Mr. Lewis ^ as executor
ney lent and ^"^ residuary devisee of Bc7ijamin Fuller. This question was
advanced; tried at a nisi prius, before Mr. Justice Teates^ on the 6th in-
appliesVo" ^ stant; when the jury found for Mr. Lewis 2,936 dollars 40 cts.

lo.i. s i!.a.de

when the law was held to be otherwise.

A trustee is entitled to liTtercst upon advances made for the use of cestui que trust, to
supply the deficiency of the fund. He is also entitled to an allowance for depreciated pa-
per money paid him during tlie war, for rent of the trust estate, and for expenses incurred
in ererting proper and necessary buildings upon it, although the cestui que trust was not
consulted.

OF PENNSYLVANIA. 489

and now, upon a motion for a new trial by the plaintiff, his 1808.
Honour reported the facts in substance as follows: Lessee"

of
About the year 1770, the rev. Williafu Sturgeon^ a minister Dilvorth
of the protestant episcopal church in Philadelphia^ being in ^*
great distress, and having several children, some of whom ung.
were very young, his congregation made a subscription ot
about 400/. and confided the money to the rev. Jacob Diichcy
Joseph Donaldson^ and Benjamin Fuller^ " to be by them laid
" out in the purchase of a small piece of ground, or in such other
*' manner as to them should seem best, for the support of Mr.
" Sturgeon^ and the maintenance and education of his younger
" children." The execution of the trust was left to Fuller^ who
received the money, and purchased with it about 63 acres of
land near the city (the premises in the ejectment); the title ta
which, he took in his own name, having paid more for the land
than the amount of the charitv. Siursrcon died in November
1770, having lived but a short time on the land. Fuller then
took charge of his three minor sons, who were particularly the
objects of the trust, put them to school, and defrayed the ex-
pense of their maintenance and education. When they left
school, they were bound out as apprentices; and to two of them
when they came of age, the one in 1 783, and the other in 1 786,
he gave 100/. each, to assist them in commencing their trade.
I'he third son died joung. The premises were rented, and
the rents received by /'w/Zt-r, until A^otr/«/'er 1799, when he died.
Part of the rents, reserved upon a lease for five years com-
mencing in March 1777, were paid in depreciated paper mo-
ney, by which a loss was sustained; and when the youngest
son came of age, the annual interest of the money which Ful-
ler had advanced beyond the rents, exceeded the annual rent.
About the year 1 789, two of the sons being dead, and the <

third absent, he expended upwards of 200/. in building a plain
stone house, and making necessary repairs on the land; and
from that time, the balance against the estate increased rapid-
ly. Fuller was not negligent either in attention to the children,
or in the manngement of the estate. He many times spoke of
it as their estate, and mentioned it in one or two wills, after-
wards revoked. But upon their coming of age, it did not ap-
pear that he told them of their interest in the land; nor did the
lessors of the plaintiff, who were the surviving brother and sis-

490 CASr.S IN THE SUPREME COURT

1808. f^"' ascertain the trust until his death, when the ejectment was
~T^==«o brought. Shortly before that, he ortercd to lease k for twelve
of years; and he once told Mr. Leiois, " people say the estate
DiLwoKTHdoes not belong to me, but I say it does." At this time how-
''• ever the annual interest of the money, advanced by him, so far
LING. exceeded the rent, that he probably took it for granted the
children could never redeem the estate, and therefore that it
would remain his property. He kept in his books a regular
account of the rents, as well as of his advances, upon which he
charged interest; and at the end of each year he carried the
balance to a new account. In some instances he charged inte-
rest upon interest, by calculating it upon the balance of the for-
mer year, without advertingto its being composed of interest.
After the ejectment was brought, the place suffered for want
of attention; and the rent received from it was very little. If
he was not entitled to interest on his advances, nor to an al-
lowance for the depreciated money, nor to the expenditures
for building, and his residuary devisee was bound to answer
the full value of the rents as if the place had been kept in good
order, the trust owed him nothing; if on the contrary he was
entitled, and the charge was to correspond with the actual re-
ceipts, the trust was in debt to him the amount found by the
jury, deducting the charges of compound interest, which they
were told by the counsel to rectify, but had omitted to do it.

Gibson and M. Levy in support of the motion. There are a
few settled rules that must govern this case. By accepting a
trust, the trustee is obliged to execute it with fidelity, and rea-
sonable diligencf ; and it is no excuse to say that he has no be-
nefit from it. Charitable Corporation v. Sutton, (a) He is never
allowed to make a profit by a breach of the trust, Earl Powlet
v. Herbert; (J)) and if he forbears to do what it was his office
to have done, it shall in no sort prejudice the cestui que trusts
Lechmere v. Earl of Carlisle, {c) These principles are enforced
with peculiar strictness in the case of charities, which are ob-
jects of great favour in equity; and they are fatal to the claim
of the present trustee, who has acted upon a system to make
the estate his own, and neglected to inform the cestui que trusts
of their right, until by the accuniulation of principal and inte-

(a) 2 Atk. 406. {b) 1 Vez.jr. 287. (c) 3 P. Wms. 315

OF PENNSYLVANIA. 491

vest the estate is not worth redemption. Fidelity to the trust, 1808.
demanded a disclosure to the cestui que trusts in ir86, when j^^gg^^
they might have redeemed; forbearing to do it was a neglect of
of duty; and if he is not punished for it, he makes a profit Dilworth
by a breach of trust. In such cases, where the trustee has at- £,

•^ .... SlNDER-

tempted to impose upon the charity, the rule in chancery is to ling.
cutoff the interest from the sums he has paid, except from the
time of their liquidaiion by the master, and to make him pay
costs. Attorneif General v. Brexuer\s Company, (a) But even
considering this as a common case of debtor and creditor, the
plaintiff owes Fuller''s estate nothing; the demand is made up
by interest, allowance for depreciated money, and expendi-
tures for buildings. Interest upon an open account was against
all the decisions, at the time these advances were made. In
Jacobs V. Adams (b) (1781), it was held that where no day of
payment was fixed for money lent, interest was payable only
from demand. In Henry v. Risk (c) (1788), no interest upon
an open account for goods sold and delivered. In IVill'iams v.
Craig {(i) in the same year, no interest upon an unliquidated
account. At that time there were but three cases in which in-
terest was allowed upon an open account; 1. Where there was
an express agreement. 2. Where there was a general usage, as S
in the trade between Enifland and An^erica. 3. Where there
was an unreasonable and vexatious delay; which can never be
where there is no demand. And although in IVillingx. Craw-
ford (e) (1803), the rule was said to have undergone a change,
vet the old rule was recognised, and this case must be govern-
ed by it. But under the new rule. Fuller would not be entitled.
Here is a long unsettled account, made intricate by his neglect,
and of which there was no adjustment or demand of settlement
for nearly 30 years. In such a case, the uniform rule has been,
to deny interest. lioddam v. Rylct/ (f), and Barwell v. Paries
(j^). fuller should be charged with the full amount of the
rents, without an allowance ior d( j)reciation. He has made a
strict accoimt against us, and should be charged strictly. He
was not bound to receive paper money. His successor, too,
should be charged with the injury to the place, and with full
rents; for although the estate was considered by the trustee as

{,!) 1 /'. n'uis. 376. (./; 1 Ij.iu. ...IJ. (if) 2 Sro. C. ( ^

;70 1 Dull. 52. (f) 4 DalL 289.

,1 Dull. 26.5. r/) 3 Brn. C C. 239.

LING.

492 CASES IN THE SUPREME COURT

1808. '"s own, it was his duty not to k-t it go to ruin. In 1786, he
J^~J*~ was bound to convey to the children; his trusteeship being
of limited to their minority. Buildings, subsequently erected, were
DiLwoRTHnot within his authority, nor were they lor the benefit of the
''■■ cesttti que trusts; for the expense has swelled the balance to the
complete absorption of the equitable interest. The verdict must
be set aside at all events; for the jury have allowed compound
interest, which is manifest from a mere inspection of the ac-
count.

Rawle :xr\di Ingersoll contra. The general rule is that a trus-
tee is neither to gain nor lose; and in this case, giving him the
whole amount of his claim. Fuller does not gain a cent, as he
charges nothing for his trouble; giving him less, he is out of
pocket for advances charitably made to supply the deficiency of
the trust fund, and to improve it. He never claimed the estate
as his own against the will of the cestui que trusts; but he consi-
dered the probability of a redemption as nothing, because the
advances were beyond the value. The object of the trust was
to maintain and educate the minor children. The rents of the
land were not adequate. He advanced money for the purpose.
He gave the sons schooling and a trade; and to two of them
100/. each to set them out; and all this was perfectly right,
though it broke in upon, and even absorbed the principal of
the trust; for the principal was small, and was designed to be
so applied. Barlow v. Grant, (a) When they came of age, his
demand, allowing interest, exceeded the rent; so that to have
proposed a redemption, when they had no property, would have
been idle,- and there was no breach of trust in it, because the
charity was not contemplated to last beyond their minority. He
however improved the property afterwards by buildings, and
great care; and the question is whether he is to be charged
with more than he received, and to be credited with less than
he has paid, with interest. The rule of interest is now perfectl)
settled, in opposition to the old decisions. Interest is always
due for money lent and advanced; and the notion that the rule
reaches only so far back, and that to all loans before, the old
rule applies, is contradicted by the case o( Cravfordv. Willing^
where the transactions upon which the debt arose occurred be-
fore the year 1776. That Fuller rendered the account intricate,

[a) 1 rm/. 255.

OF PENNSYLVANIA. 453

is not the fact; it was plain enough; and the only reason why it 1808.
was not settled, was because there was no person to settle it, Lessee
and to pay him a certain sum, for an uncertain value in return. of
Interest upon the advances of a trustee has been allowed after Dilworth
a greater lapse of time, in CeciPs Lessee v. Korbinan^ {a) in this „
court. The cases, in which it has been disallowed, have been tiuo.
cases of fraud, and of such gross negligence as produced great
mischief to the debtor. So were Attorney Gen. v. Brewers'*
Company^ and Boddam v. Ryley. As to the depreciated money, it
was a legal tender; for the act of 31st 31ay^ 1780, M'-Kean's ed,
388, did not suspend the tender law as to contracts made after 1st
November 1779, or where a distress might be made^ which was
our case. That law was not generally repealed until June 1781,
and then there was a saving of guardians and trustees who had
received such money bona fide. The rents since Fuller'' s death
have fallen in consequence of the ejectment; during which, ac-
cording to the plaintiff's argument, it was neither our interest
nor our duty to improve the place; for the more we expend, the
less we are to get. And as to the buildings, they were essen-
tially necessary; the place was not tenantable without them, and
the cestui que trusts were not present to be consulted. Had they
been costly or useless, the case would have been different; but
in consequence of this improvement, and the great rise in
lands, the estate may be now redeemed better than at any
other time. The compound interest is a matter of calculation,
and we are ready to correct it. The jury omitted the direction
we gave them at the trial.

Reply. At the time of these advances, monej' lent bore no
interest eithir here or in Eni^land. The benefit attending loans,
at this day, ought not to be extended to past transactions, be-
cause it was not in the contemplation of either borrower or
lender, and formed no part of the implied contract. What the
lender could not have expected to receive, there is no proprie-
ty in allowing him. The act of 1780 merely excepts contracts
after November 1779, and cases in which a distress might be
made; that is where it was made. And the reason of both is ob-
vious: as to the one, the contract must have been made with a
knowledge of the lender law; as to the other, if you compelled
the tenant to pay, it was fit he should pay in the current paper;
and accordingly suits at law were excepted as well as distresses.

{a) Supra. 135

Vol. I. 3 R

494 CASES IN THE SUPREME COURT

1808. TiLGHMAN C. J., after stating the facts, delivered the

Lessee op'"ion of the court as follows.

of Several reasons have been urged by the counsel for the

DiLwoRTH plaintiff in support of their motion for a new trial. These may
c "be reduced to the following; heads:
LING. 1. No interest ought to have been allowed on /"w/Zer'^ ad-

vances.

2. No allowance should be made to Fuller for depreciated
paper money.

3. No allov/ance should be made for money expended in
buildings after the youngest child came of age.

4. The jury have allowed compound interest.

1. It seems to have been formerly held that interest was
not allowable on an account for money lent and advanced.
That opinion gradually declined upon more mature reflec-
tion; and without citing particular cases, it may now be safely
affirmed, that for a considerable time past the settled law has
been, that interest is recoverable for money lent and advanced.
Is there anv thing particular in this case to distinguish it from
the general rule? Fidler has charged no commissions. I think
he ought not. The honourable and charitable trust he had
undertaken forbade such a charge. It may be said he would
have been more charitable if he had charged no interest.
True. But he was under no legal obligation to do so. It is
material that the subscribers to the charity seem to have had
no views beyond the maintenance and education of the chil-
dren. They did not expect that there would be more than
enough for this. The whole subscription amounted to 408/.
14*. 2d. It was left to the discretion of the trustees whether to
invest the money in land or not. Now if it had remained in
money, it would have been expended as occasion required.
After it was invested in land, either the object of the charity
must have been violated, or money must have been borrowed
for the support of the children. If Fuller had borrowed, he
must have paid interest, which would have fallen on the trust
estate. Now where is the difference to the children, whether
interest is paid to Fuller or to a stranger? There is no just
cause of complaint, because the jury have allowed interest.

2. On the second point little need be said. The plain prin-
ciples of justice demand that a trustee who has acted to the
best of his judgment ought not to be money out of pocket.
There is no ground for saying that Fuller zvantonly received

OF PENNSYLVANIA. 495

bad money. We know that during the war of the revolution, 1808.
it was not prudent to refuse the current paper. In consider- ~T^~ g^.
ation of this, it is provided by act of assembly that guardians of
and trustees shall not be chargeable with losses occasioned by Dilwouth
the receipt of such money And if there was no act of assem- ^ ^'"
bly on the subject, I should not hesitate to say that the law ling,
would be the same.

3. As to the money expended in buildings and repairs, i^?^//fr
would have acted with more prudence and propriety, if he had
informed the children, when they came of age, of the exact
state of the trust, and taken their advice, whether to keep the
place any longer, or sell it at once, and thus close the business.
If he had laid out the money in improper buildings, it would
have been but reasonable to throw part of the expense on him.
But that was not the case. He made no other than plain solid
buildings, very necessary for the land, and by which its value
has been greatly increased. It is certain that the balance
against the trust estate has increased very much since the
children came of age; and this increase has arisen altogether
from those buildings, and the interest on Fuller^s account.
But on the other hand, the children have the advantage of
the great rise in the value of land. If it appeared that Fuller
had intentionally deceived them as to the nature of their
rights, or that he had ever formed a design of making the
estate his own to their prejudice, it would be proper to punish
him by striking from his account the expenditure for the build-
ings; but that not being the case, it is reasonable to allow it.

4. In the last objection to the verdict there is weight. Al-
though we do not exactly know in what manner the jury stated
the account, yet there is sufficient reason to suppose, that in
some instances they allowed charges of compound interest.
But the defendant's counsel having consented to correct all
errors of that kind, there is no occasion for a new trial. The
court recommenrl that the accoimt should be made out on each
side, correcting the errors of compound interest. If the two
accounts thus made out agree, it may be taken for granted,
that the calculation is right. If they differ, the court reserve
the right of deciding between them.

On the whole of the case, the court think there is no cause
for a new trial, the defendant consenting to correct errors of
compound interest under their direction.

New trial refused.

496 CASES IN THE SUPREME COURT

1808.

Saturday, ^ • ^ "O

December LaNBY ttgainst KiDGWAY.

31st.

Ifasuithas A SHORT time after the commencement of this action,

been carried /A ^ , ,•, • • r j i i • /• , •

onfortheusc Lanoy^ while m prison lor debt, assigned, inter alta,\\\%

of ;in as- claim against the defendant to a certain Thomas Shaw, and then

signoc, the .

nominal plain took the benefit of the insolvent laws. The action was after-

tiH being wards carried on for the use of Shaiv. who instructed counsel,

insolvent, the .....

court will and assisted at the trial, when a verdict passed for the defend-

permit the a^f

Qelendant

after verdict Upon these facts Hallowell^ for the defendant, obtained a rule

to suerpest upon Shaw to shew cause why he should not pay the costs of

docket the suit.

name of the

assignee, und

will rule him Raxvlc, upon shewing cause, objected that as the name of

to pay the Sfiaxv did not aj^pear upon the record, the court could not com-
pel him to pay the costs. The defendant might before trial have
suggested the name of Shaw as the real plaintiff, or have ob-
tained a rule for security for costs upon the ground of Canbifs
insolvency; but as he had neglected to do either, he was not
now to be assisted by the court.

Halloxvell replied, that a rule for security was out of the
question, as Canhy lived within the jurisdiction of the court;
and that it was not too late to make the suggestion now, since
the facts shewed that Shazv had been all along the real plaintiff
in interest.

Per Curiam. It is agreed that this suit was carried on in
the name of the plaintiff for the use of Thomas Shaw^ who ob-
tained an assignment from the plaintiff shortly before he was
discharged by the insolvent act. The court are of opinion that
under these circumstances, Shaw may be considered as the
substantial plaintiff, although his name does not appear on the
record. The defendant might have pleaded that the action was
for his use, and made a set-off of a debt due from him. Having
used the process of the court for his exclusive benefit, it is rea-
sonable that he should be answerable for the costs. The rule is
therefore to be made absolute; but it must be entered on the
record, at the suggestion of the defendant, that the suit was for

the use of Shazv.

Rule absolute.

OF PENNSYLVANIA. 497

1808,

Thomas Ketland, surviving partner of J. Ketl ah b, Saturday,
against Medford surviving partner of Willis. 318^"* "

FOREIGN attachment at the suit of the plaintiff was ^^.^^re the
laid upon the effects of the defendant in the hands ofthe debt
yohn Lisle, returnable to March 1801. In April following, ^"e by his
Lisle, who was the agent oi Medford for receiving and paying and the lattei'

the debts of Medford and Willis, and had been previously di- V-^ P^'^! "®"

r . 1-11 'I'ing', the

reeled by Medford to stand suit, entered special bail, and court will

dissolved the attachment. He afterwards consented to a refer- ""*' *^ ^^%

instance ot

ence; upon which 3,302 dolls. 23 cts. were awarded to the plain- the princi-

tiff, and the award confirmed. By an article between Ketland'^^''^'.^^^ .

. f. P ag'ainst the

and Lisle, a few days prior to the reference, the former agreed wish ofthe
to accept from the latter 12.y. &d. in the pound, ofthe sum that ''*''' '^'■'^'''■^"

I _ • _ ... I'xoneretur

should be awarded, as a full discharge oi Lisle from his liabil- upon the bail-
ity for the debt as bail; Medford being at that time in ^'^g^^nd,^^^^^^^^^^^^^''^^^
and his bail unable to surrender him. And a short time after has been ta-
the award. Lisle paid the 12*. 6^^.; and at his instance Ketland
assigned the judgment to Preston and Smithfield. Whether
Lisle paid the money with the funds of J/f<^or<y, did not ap-
pear; he claimed to be a large creditor of Medford; and upon
the latter coming to America, Lisle took out a bail-piece, with a
view to take him. Ketiand declared himself satisfied, and that
he had no claim against Medford.

Ingersoll, for the defendant, moved to enter an exoneretur
upon the bail-piece; and upon the above facts appearing in evi-
dence, he contended, that, as Lisle had acted as the agent of
Medford in pa\ing the money, he had no right to surrender
him, because he had taken the step for the accommodation and
safety of his principal, and not to secure a power to himself.
And in the next place, that the money being paid, and the bail
discharged from all liability, he had no right to surrender him,
because the right to surrrender was a mere defensive riglit,
and founded exclusively upon the responsil)ility of the bail.
That in fact Lisle was no longer l)ail ; the recf)gnisance was
extinct; the condition of it was, that if the defendant shouUl be
condemned in the action, he should satisfy the costs and con-
demnation, or render himself to the custody of the sheriff, or

498 CASES IN THE SUPREME COURT

1808. the ball should pay the costs and condemnation for him. Here
Keti.and ^^^ ^^*' ^^^ P^''^ ^^^ costs and condemnation, and therefore

V. the recognisance was at an end by performance.
Medford.

Levi/ and Tilghmaii for the bail. It is well known that bail
are the most favoured of all sureties; and, as it is said in 6 Mod.
231., they have their principal always upon a string, and may
pull him in whenever they please. This is an application by the
principal to pull the bail out of the bail-piece ; it is of the first
impression; and in this summary way, before the bail is taken,
and where facts are disputed, should not be listened to. The
only ground upon which it can be supported, is, that the prin-
cipal has paid the debt himself, or the bail has paid it out of
his funds. The first is not pretended; and the latter we deny. He
paid it out of his own funds, as any third person might; and the
plaintiff became a trustee of the judgment for his use. It was
accordingly assigned at his instance to Preston and Smithjield.
Bail may certainly buy the judgment; and if he does, there is
no ground for depriving him of any of his remedies. [C. J.
TiLGHMAN. The question is not whetlier he may buy the
judgment; but what has become of the recognisance.] If he
had paid under the recognisance, as in debt or scire facias
upon it, there might be some ground for the opposite argu-
ment; but here he has paid it, as a stranger might, without
action, and with an intention, at the time, to use the judg-
ment, by directing an assignment of it. Indeed it is question-
able whether the court has any power to grant the motion
against the consent of the bail, who is no party on the record;
but surely as the application is to the equitable jurisdiction of
the court, as it is said in Martin v. O'-Hara^ (a) and the bail
has paid all, and the principal nothing, they will not interfere
to prevent his getting the money back.

Rawle in reply. It is true that bail hold their principal upon
a string; but here the bail has cut the string, and wishes to get
hold of it again. He has terminated the recognisance by pay-
ment; not payment as a stranger, but payment as bail; for the
article of agreement recites that he was unable to surrender
his principal; and the compromise was in full discharge of his
liability. We do not come then to the equitable jurisdiction

(a) Coixp. 824.

OF PENNSYLVANIA. 499

of the court; for the recognisance is gone. It is not as if it 1808.
were in force, and the bail applied for a discharge; but it is as i^j..j-lahd
if an execution had issued upon a judgment that had been paid. v.
Lisle however has no equity; he made the agreement without Medford.
the privity of Medford; and after having discharged the re-
cognisance, he wishes to set it up. If he can do it now, he
may at any distance of time, and may constitute himself the
gaoler of Medford whenever he pleases.

TiLGHMAN C. J. delivered the judgment of the court.

This is a motion on the part of the defendant to have aa
exoneretur entered on the bail-piece; the bail not joining in the
motion, but opposing it.

The court have no doubt of their authority to enter an ex-
oneretur, if a clear case was made out. But the counsel of the
defendant have shewn no precedent going the length they ask.
Without entering into a detail of the facts, this case presents
two striking features : one that the bail has paid a large sum
on account of the defendant; the other that the defendant has
not paid one farthing. Nor has he yet been taken by the bail.
In this situation the court think it would be wrong to interfere
in this summarv manner. If hereafter the defendant should
be taken by the bail, and it shall be made to appear that the
bail-piece is used for oppressive and unjust purposes, it will
be in the power of the court to grant relief.

The court are of opinion that the motion be rejected.

Motion denied.

lb 499f

16s r 7l|

'1' 2fi«

1809.

Insunince Company of Pennsylvania a^a'mst Ketland. , ,

' ■' -' '^ Wednesday,

Janu.ory 4lli.
'' I ''HE household furniture of the defendant was taken under wIk re t!ic

-*- a //. fa., and the shcrilf at this term returned his writ J" ^"
*' levied as per inventory." Before the levy, the sheriff had upon floods
been indemnified by the plaintiff; and after the return, a ^t"^- {-"naant's
ditioni exponas issued, returnable at next Manh term. On a possession,
former day a motion was made on behalf of the sheriff to amend ^v'-jhult stay

proceed-
ing's and

direct an issue to try the property, upon an allegation that the goods belong to a tliird

person.

500 CASES IN THE SUPREME COURT

1809. ^'s return, by acMing" that the goods mentioned in the inveii-

T 7; ;; " torv, were, at the time of the levy made, claimed by fames
Ins. Co. of ^ • ' ', , . , . r

Penn. " ^'J'^ ^"" others as their property, by virtue ol an assignment

V. " bv the defendant, dated the 4th of Januarij 1806;" and
Ketjland. ypon Jin affidavit that it was his intention at the time to make
this addition a part of his return, but that it was omitted
by accident, the court after argument permitted the amend-
ment.

Tod^ for the defendant, now moved the court to stay proceed-
ings on the execution, and to direct an issue to try in whom
was the property of the goods. He said that the sheriff himself
had the power to impanel a jury for this purpose if he doubted
of the property, 2 Bac. Abr. 715.; and that the court should
exercise the same power under the circumstances of this case,
though the sheriff should choose to decline it.

The Court asked whether a precedent for such a motion
was any where to be found; and told the counsel that if they
thought there was, they should have time to search for it,
though it was the last day of the court's sitting; but the coun-
sel answered that they were not aware of any precedent, and
therefore would not ask for time. Whereupon

Per Curiam. iMotion denied.

Ingersoll with Tod.
Dallas contra.

END OF DECEMBER TERM, 1808.

OF PENNSYLVANIA. 501

1809>

MARCH TERM, 180'J.

Thomas Smith Esq., one of the Judges of this court, died
on Friday the 31st of March 1809.

Appointment: Between December and March terms, Walter
Franklin Esq. to be Attorney General.

Delaware Insurance Company against Gilpin. M-Hthiut.

THIS was an action of debt upon a bond, brought and I" an action
, - , , , . , , , , ox'dtbt die-

defended by attorney in the common pleas, and then continued

removed by hab. cor. to this court, where it was ^/jfC0??f7nwe^;''^fter the first
, , - , " . • rr>, . 1 • J court upon

the defendant agreeing to pay costs. 1 he question submitted the defend-
to the court was, what costs were due to the plaintiff's ''"t's agree-
ment to pay
attorney. costs, the

plaint ifi"'s
attorney is

Condy read the «th sec. of the act of 21st March 1806.entiikdto

7 St. Laxvfi, 562., which directs that " the plaintiff's attorney ^''*^ ^'^.^ ^"^

. . . - 'inactions

" shall not be entitled to -^ judgment fee in any action of debt; ended after

and also the act of 20th April 179S, for establishing an explicit*^'^*^ ^^''^^ ,

r ^ or covwt, and

fee bill, 3 St. Laws 775. sec. 1., which allows to attorneys in before judg-

the common pleas for issuing /'nrc/*^ &c. in suits ended the'^l^'"' ""^
' o / I Withstand-

first court 1 doll. 67 cts., if after the first court, the furthering the 5th

sum of 1 doll. 66 cts., and for every suit prosecuted '^o j"^S"act (f oi

ment, discontinuance &c. four dollars; in this court, double. March 1806.

He contended that the act oi March 1806 did not extend to.^^-^Y'V^'

the r that

an action of debt conducted like this by attorneys, but to such section takes
only as was prosecuted or defended by the party himself; ''"d '-"^j^^i";!^ J^^
that of course the plaintiff's attorney was entitled to full costs, fee m anac-
as though that act had not bt-en passed; or at all events tl>'»t rosecuted
the judi^ment fee taken away, was merely the sum of five shil-and defend-
lings, v.'hich added to th«; two sums of 12a-. 6r/. before given, '.^[^^1.^^^.
made the four dollars; and that those two sums were still left
to the attorney.

Vol. I. 3 S

502 CASES IN THE SUPREME COURT

1809. Pr." Curiam. It is not necessary to decide whether the

r;; provision of the act of 2tst March 1806 extends to such an

Dki.a- •

AVARK action of debt as this; but as no judgment has been entered in

Ins. Co. tliis case, it is not within that clause of the act which has been

^ ^'" read. The plaintiff's attorney is entitled to the fee due in
actions ended after the first court and before judgment.

Saturday, Wl L T agaiflSt FraNKLIN, AssigllCC of Ke E L V .

April 1st

Berth ON and Son against Keely.

?>"enin ^'""'' TT^^ plaintiff Wilt levied upon the property of Keely, which
aftcra c'onsi- -^ he had previously assigned for the benefit of his credi-
dcrablever- jq^s; and the proceeds of sale were paid to KecliPs assignee by

dictisoDt<.in- ' ■ ..-..'

cd against .^, the sheriff. Mr. Franklin conceived himself entitled to distn-
hc conveys | ^^ the money acrreeablv to the assignment ; Wilt denied the

;iU Ills pro- , o - o '

perty lo a validity of the assignment, and claimed the money exclusively.

trustee of Ins rj, jete^mine these conflicting pretensions, this action for mo-
own clioice, ° * '
for tlie benc-nev had and received was agreed to be entered, and tried under

,.f^ . the treneral issue, which accordingly was done before Teates T,
creditors, in o ' '-> J _ ''

equal pro- at a nisi prius in February 1807, when the jury returned
K'trustce the following special verdict.

livcsatadis- The jury find " that an action on the case was instituted
do'eTn(ithcar''" the supreme court of Pennsylvania by the said Abraham
ofthe deed Wilt against the said Matthias Keely; and that on the 3d day
d;<vs after- °^ March 1804, at a court of nisi prius holden, &c., a jury
wards, when duly sworn and affirmed found by their verdict to be due to
No p^os"es- the plaintiff Wilt, by the defendant Keely, the sum of 9,062
sion ofthe ti- dolls. 15 cents. That this verdict was given in ^t about A; o^ clock
eiven untir P' ^^' ^f Saturday the said third day of March in the same
nearly two year. That immediately afterwards, on the afternoon of the
tor; and same day, by directions of a certain Charles P. Heath, the

the debtor gon in law of the said Matthias Keely, and on his behalf, a cer-
continues in . , , ^ , . , , , , . • *u

possession of^^m deed of bargam and sale- was drawn by a scrivener m the

the furniture said city, for the purpose of transferring the real and personal

and g-oods, / i i u

the next day
after tlie ex-
ecution of the deed, which was Sutulay, and part of Monday, when they are seized in
execution. The deed contains no schedule of property, and no limitation of time, for dis-
tributing' the estate. IfeU, that it is a valid deed, and takes effect from its execution, as
the assent of the trustee is presumed; delivery of title deeds is unnecessary, and non-
dcliver, of goods is explained.

If a bargain und sale recite a consideration of money, and the jury find no money was
paid, tliis part of the verdicf goes for nothin^f. No averment lies against such a recital in
ilse deed.

OF PENNSYLVANIA. 503

estate of the said Matthias Kcely to a certain John Bartholo- 1809.
mexv; and on the nig fit of the satnc day bctxveen 9 and 10 o"* clock \v7L^i^^
P. M. the said deed of bargain and sale was signed by the said v.
Matthias Keely a«^ Ti'j/t", in the presence of txvo ivitnesses,'-'^^^^^-^^
and acknowledged before Frederick Wolbert, esquire^ in the
same rooni^ and immediately after the signing. That the said
John Bartholomew was not present at the said time and
place of signing^ nor had he a?iy knoxvledge beforehand that
any such deed ivas to be^ or xvould bc^ executed. That the said
John Bartholomew xvas not a creditor of the said Matthias
Keely, That he resided at that time in Chester county, in this
commonwealth, at the distance of about three and twenty miles
from the city of Philadelphia aforesaid, and never heard or knexv
of the said supposed assignmeiit witil Wednesda}', the 7th day
of the same month o/'March, when the same was shewn to him
at his dvvellinghouse in the said county of Chester^ by a certain
George Dmitzman, who was sent to him with the assignment
and a letter by the said Keely. That the said John., on receiv-
ing the said letter and assignment, said to the said George^
after perusal of the said papers, that he was a friend of Mr.
Keely^s family, and was willing to oblige him in this respect:
that he was very xvilling to serve, but that his illness would
prevent him from coming to the city." The jury further find
" that no money xvas paid to the 5rtzW Keely by the said Bartho-
lomew on the said 3d of March, or at am/ time afterxvards; and
that no possession of the goods or lands, books or xvritings of the
said Matthias Kccly xvas delivered by him to the said John, on
the said 2d day of March, or at any time afterxvards. That the
family of the said Matthias continued to reside in his said
dwellinghouse after the said supposed assignment; and that
the said Matthias continued in possession of his goods and furni-
ture until Monday the 5th day of Murch aforesaid, xuhen the
sheriff of the city and county (^/Thiladelpliia levied on the goods
and furniture of the said Matthias, at the suit of a certain Peter
lirrthon and son, and took the same into custodw" The jury
further find " that on Monday the 5th day of March in the
same year, being the first day of the March term of the said
supreme court, judgment was entered in the same court, on
the said verdict, against the said Kcely. That on the 7th day
of the same March, the same Matthias Keely was arrested and
confined for debt in the prison of the city and county of Phi-

504 CASES IN THE SUPREME COURT

1809. ladelphia. That on the 10th day of March in the same year,
rr: the said John Bartholomew assigned the premises mentioned

^ in the said supposed conveyance of the 3d of iMarch to a cer-

t'RANKLiN.tain Thomas AlliboJie ?ix\6. Caleb North^who afterwards assigned
to the said Walter Franklin^ the defendant. That the said Caleb
North and Thomas Allibone were authorized by a meeting of
the creditors of the said Matthias to take the said assignment
from the said John." The jury further find " that two messuages
of the said Matthias Kcehj^ in the city of Philadelphia^ were le-
vied upon by the sheriff, under the execution of the said Abra-
ham; but that the title deeds of the said two messuages or of any
other real estate of the said Mixtthi'ds Keely, included in the first
assignment aforesaid^ xvere not delivered by him^ or his order ^ to
the said ]ohxi Bartholomew at any time., but remained iii his own
house, where his famih' continued to reside, and were by him
brought into the court of common pleas on the 26th April
1804, and surrendered. And that the said Matthias Keely,
or a certain Charles P. Heath, his son in law, had in his or their
possession the said supposed assignment of the id of March
until the evening of the 6th of March, when it was put into the
hands of the said George Dantzmaii, in Philadelphia, to be de-
livered to the said John, in Chester county. And that the said
Matthias Keely on the 8th day of March, in the same year,
petitioned the court of common pleas of Philadelphia county,
on which such proceedings were had \_pr out proceedings']. If
upon the whole matter the law be in favour of the plaintiff,
then the jury find for the plaintiff, and assess damages to 2,037
dollars 58 cents, and 6 cents costs; if the law be in favour of
the defendant, then they find for the defendant."

The case of Berthon and son against Keely, it was agreed by
counsel should be decided on the same argument with Wilt
and Franklin; and that the preceduig special verdict should be
considered as existing in the case, as far as it applied, with this
additional fact, that the sheriff under the seizure found by the
verdict, proceeded to sell the goods so seized, and had paid the
proceeds into this court. The question in this case was there-
fore, whether Berthon and son should not be at liberty to take
the money out of court.

Both cases turned upon the validity and relation of the deed
of 3d March 1804; by which, Keely and wife, in consideration

OF PENNSYLVANIA. 505

■jf one dollar^ bsirgajned and sold his whole real and personal 1809.
estate to Bartholomew, in trust that he should " forthwith take ~*T; "
" possession and seisin ot the premises, and within such con- ^^
" venient time as to him should seem meet, by public or private Frankliw.
" sale for the best price that could be procured, convert all and
" singular the estate real, personal, and mixed, into money,
" and as soon as possible collect all and singular the debts and
" sums of money above assigned, and after deducting the costs
" and charges of the trust, should pay^ind apply all the moneys
" arising therefrom" to and among all the creditors q/'Keely, in
equal proportions; the surplus, if any, to be returned to him.
The deed also gave power to Bartholomew to convey part or
the whole of the property to one or more trustees under the con-
trol and direction of Keely's creditors^ upon the same trusts as
were mentioned in the original assignment. And under this di-
rection and control, Bartholomexv, on the 10th March 1804, con-
veyed the whole to North and AUibone^ and they on the 13th
Ju7ie 1804 to Mr. Franklin^ the defendant; but the deed did
not contain or refer to any schedule or list of the property and
debts assigned, or of the debtors and creditors. It was recorded
on the 2%\.\\ August 1804.

The cause was argued at March term 1808.

Phillips and M. Levy for Wilt. Tod^ for Berthon and son.
Upon this special verdict we make two points. 1. Under the
facts stated in the verdict, the deed of the 3d March 1804 is
fraudulent and void. 2. Supposing it to be valid, it had no
operation until the assent of the trustee, on the 7th of March^
and therefore does not cut out our intervening judgment, and
execution.

1. The deed is fraudulent and void, because it was intended
to defeat the verdict which Wilt had obtained on the same
day, — because it was not attended l)y delivery of possession, —
because the trustee was not a creditor, and was chosen by the
debtor, — because there was no money paid by Harthol'jmeio
to Kcely^ — because there is no schedule ol the propertj', — and
because no time is limited for the execution of the trust.

To render a deed fraudulent by the stat. 13 Eliz. c. 5. the
mala mens need not appear from positive proof. If its necessa-
ry effect is to delay, hinder, or defraud creditors of their just
and lawful units and debts, the law pronounces the deed to be

506 CASES IN THE SUPREME COURT

1809. traudulcnt, from the mischief that results, and does not ask for
77, ^ direct proof of covinous intention. The facts of this case are
7-. short. On the night of the same day on which JVilt obtained
Franklin, his verdict, at an unusual hour, and without consulting a cre-
ditor, Keehf conveys away all his property upon earth. The
judgment was to become absolute in four days; and therefore
the Jfrst objection to the deed is, that it was to delay, hinder,
and defraud IVilt of the just benefit which the law was about
the next moment to conA^r upon his vigilance, in the lan-
guage of the statute, *' to the let and hindrance of the due
" course and execution of law and justice." The manifest view
was to defeat this creditor; and therefore even if it had been
for a valuable consideration, given by a person conusant of
the facts, the law would overthrow it, according to the case
put in Cadogan v. Ktnnett. {a)

No possession of the property was delivered to the grantee.
This is our second objection. There is no circumstance that
goes more directly to the point of fraud, than the grantor's
continuing in possession of his property, after he has assigned
it by an absolute deed. Even where it is made for a valuable
consideration, it is bad; as in Txvyne*s case^ (Jb) where the con-
veyance was in satisfaction of a debt due to the grantee; and in
Hungerfordv, Earle^ (c) where the grantor conveyed to trus-
tees to pay debts, and to raise portions. It is not merely evi-
dence; it is a circumstance per sc, which, in point of law, ren-
ders the deed fraudulent. In Edrvards v. Harhen (d) it is
stated by Bxiilcr J. that upon a consultation with all the judges,
in the c:is< of liamfurd \ . Baron., they were unanimously of
opinion, that unless possession accompanies and follows the
deed, it is fraudulent and void; and that where a bill of sale on
the face of it is absolute, and to take place immediately, pos-
session must be immediattly delivered, or the deed is fraudu-
lent. The principiil case was argued by the counsel of the
grantee, as being one in which the want of possession was
only evidence of fraud, and that it was not such a circumstance,
per 6r, as made the transaction fraudulent; but the answer of
the court was, that that was the point they had considered;
and they were all of opinion, that if there was nothing but the

(a) Cov-'p. 434. (c) 2 Vern. 261.

{b) 3 Co. 80. frO 2D.&-E. 587

OF PENNSYLVANIA. 507

absolute conveyance without the possession^ that in point of law 1809.
was fraudulent. It is also to be remarked in our case, that ^y
there was no counterpart of the deed of the 3d. of Marchy and ^,
that the original was in the custody of Keely until the evening pRANKiiif.
of the 6th; during which time he might have destroyed it.
The title deeds also were in his hands until the 26th April.
These facts bring us within the principle of Wilson v. Day^ (a)
and also within that of Tarhack v. Marhury, {I))

The third objection is, that the trustee was not a creditor,
and was chosen by the debtor. The impropriety of allowing a
debtor, involved in inextricable embarrassment, and pursued to
the verge of execution, suddenly to withdraw his property, and
to place it in the hands of a friend, who can feel no common
interest with the creditors, and must entertain a bias to the ac-
commodation of the debtor, is not to be overlooked. It not only
shews the fraudulent intent, but it contributes to the fraudulent
effect. It turns round the creditors to a person against whom
they have little or no remedy, and who, in all cases of collision
between them and the debtor, will act in the spirit of his ap-
pointment, by baffling them with every impediment that the
debtor's interest may suggest. Accordingly in Burdv. Fitzsim-
?nons, (c) it was mainly relied upon by the judges, who decided
against the deed; and in Alderson v. Tempk\ {cl^ it was the
opinion of lord Mansfield that it would be an act of bankruptcy
in a debtor, to convey his estate to trustees of his own choosing.
If so, it jniist be bad at common law, as it must proceed upon
the giound of fraud.

Another objection is that no money was paid by the grantee;
there is therefore no consideration to raise a use. 2 Bl. Comm.
330, Monninirton v. Williams (e), Stream v. Seyer (/)■, Sarg-cnt
v. Reed (if). The consideration is of the essence of this kind of
conveyance. 2 Inst. 671. It is true, after verdict, a considera-
tion will be presumed to have been proved; but here the re-
ceipt of a dollar is negatived l)y the special verdict, and the
presumption is rebutted.

Tile fifth defect of this assignment is the want of a schedule*
Courts of justice, keeping in view the principles of the common

(a) 2 /iurr. 830 (.d) 4 Burr. 2240. (g) 2 Stra. 1229.

{l>) 2 y-rrn. 510 (e) 1 Tr/i// . 108

(() 4 Dall. 77 (/) 1 LJ. Rny. Ill

508 CASES IN THE SUPREME COURT

1809. law, as well as the statute 1 3 Eliz., will not suffer themselves to
Ty be deceived by the honest appearance of a deed of trust, if it is

■,,. wanting in those provisions which are essential to the execu-
FRANKLiN.tion of it, and which are necessary to render the trustee and
cestui que trust independent of the QV^ntor. When real estate
is conveyed, the trustee should know its situation and amount,
either from the deed, or from something to which it refers;
a fortiori where debts are assigned, since without some speci-
fication, the pursuit of them is hopeless. This was a circum-
stance relied upon in Burd v. Fitzsimmoiis^ and with great
propriety.

Finally, no time is limited for the execution of the trust. If
such a conveyance as this can be supported, it must be because
it is for the benefit of creditors. It can never be for their bene-
fit, that the property of the debtor, in whose hands it is subject
to execution after a limited delay, should be given to a trustee
to apply it for their use, only when he shall think proper. It is
substituting, for the delay of a few months, a delay without
limit.

2. But supposing the deed to be valid, it did not take effect
until the 7th of March^ when the trustee assented. This assent
was clearly necessary to give operation to the deed. But it
cannot carry the deed back by relation. Relations are not to do
wrong to strangers; they are fictions in law, which are always
to be accompanied by equity. Nor is such assent to be pre-
sumed. Where a deed is for the benefit of the grantee, no
doubt the presumption exists; it is highly reasonable. But
where the deed imposes an unprofitable dutv, the presumption
ought to be the other way. The case is all the stronger for us,
because the trustee is not a creditor; he is here to perform a
duty without reward, and he covenants for the performance of
the duty by accepting the trust. There is no case in whicl>
assent to such a deed has been presumed. The lime of delivery
therefore, according to lord Ellenborough^ in Hall v. Case-
nove^ (a) is the important time when it takes effect as a deed.

Rawle and Ingersoll for the defendant. It is the policy oP
all civilized countries to favour an equal distribution among

(fi) 4 East 481.

OF PENNSYLVANIA. SOfy

the creditors of an insolvent debtor. The embarrassment to 1809.
commerce, and the ruin to individuals, which spring from \v77t~^
large preferences, either given to, or compelled by, a single v.
creditor to the exclusion of the rest, have every where led toFRA:sKLiN.
i>ankrupt and insolvent laws; vmtil at last we may say that ge-
neral assignments are favourites of the law, and will be sup-
ported by everv reasonable intendment. If then the deed in
question is bad, it is either because it is fraudulent upon mo-
ral principles, or is contrary to the provisions ot the statute.
It surelv is not against the general policy of the law.

Fraud, upon moral principles, is not found by the verdict.
It is not to be presumed; and in fact it is negatived by all
the proceedings of the debtor. His object was to convey all
his propertv, for the equal benefit oi'all his creditors, without
any trust or reservation for himself, and without stipulating for
a release. His creditors were to control the trust, by appoint-
ing subsequent trustees; and they might order the distribution
in the manner and time they pleased. In what respect does this
differ from an assignment under the insolvent laws, except
that the debtor remains exposed to execution, and has not
claimed the protection which the law would have granted him.
It is not contrar)' to the statute. To make a deed fraudulent
within the 13 Eliz. there must be an actual mala mens^ which
cannot be presumed, but must be proved, and found by the jury;
as it was resolved in the Chancellor of Oxford'' a case, (a) The
circumstance, of its being voluntary and without consulting the
creditors, is of no consequence; for there are many cases and
opinions, that a deed of trust may be voluntary, and yet not
fraudulent; as in lord Tcynliam v. Mullens (b) and in J^ussel v.
Hammond, (r) Lord Mansfield, in delivering his opinion iu
Cadogan v. Kennett,, (d) sa)s that such a construction of the
statute is not to be made in support of creditors, as will make
third persons sufferers; and therefore the "statute doesnotmili-
*' tate against anv transaction bona fide, and where there is no
" /m«^i/j(-/?/'>/i'>///v/?/r/." Whether voluntary or otherwise, there-
lore, is not the (juestion; l)Ut whether it is a trick or contrivance
to defeat creditors. The statute goes wholly upon the ground of

(u) \0Co.5Q. (0 1 Ati. 15.

(';) 1 M'J. ny. (d) Covp- 431.

V(5L. i. 3 T

510 CASKS IN THE SUPREME COURT

1809. intended (viiml. It speaks, in the preamble, of feigned, covinous,
YvTiT ^"^ fraudulent conveyviv\ccs,devi'ieda/id contrived of inalioc. The
T. parties are made criminal, and are punishable by information;
lRANKi.iN.;ind tlic 6th scction expressly protects such deeds as are made
upon a good consideration, and /jona fide. It may be upon a
good consideration, and yet fraudulent, as in Twi/ne\<i case;
which was a criminal prosecution, and where the deed was
evidently designed to cheat the other creditors of Pierce; but
if it is done honafide^ it is impossible that there can be fraud
within the statute. The cases from the English books, where
an honest intention was held not to save the deed, are cases
within the statutes of bankrupt; the deeds were deemed to be
frauds upon those statutes. But they could not be bad at com-
mon law, or by the stat. 13 Eliz.; to come within which, the
feoffment must be devised of malice, fraud or the like, 3Ieux
qui tarn v. Hoxvell. (r/)

But it is said this deed was intended to defeat and delay the
creditor who was about to obtain an execution; and that this is
fraudulent. We deny the position. The object was to prevent
one creditor from grasping every thing to the exclusion of the
rest; and this was perfectly honest, and is supported by manv
authorities. Surely on the afternoon of 6'a^?<r^a«/, Keehj might
have given property to one creditor in satisfaction of his debt,
bankrupt laws out of the case; a fortiori might he give it for the
benefit of all his creditors. Nunn v. Wilamore. {h) The ap-
proaching judgment was nothing; and to this, and indeed to
all the objections against the intent and effect of the deed, the
cases of Holbird v. Anderson^ (c) and Meux v. Hoiuell^ are in
point. The delay is honestly and lawfully produced to obtain
an equal distribution among all who are entitled.

Then as to the particular defects which are relied upon as
badges of fraud:

No posscsaion was delivered. So far as it respects the title
deeds, none was nccessar}'. Our recording acts have made the
possession of the deeds, immaterial. And Keely con\d not have
destroyed the principal deed, since it was well known by its ex-
ecution before witnesses, and by its acknowledgment before a
Judge, who took the privy examination of the wife. As it re-

\ [a, 'i L::-.'. 1. fi; fi Ji c'- A'. 52^. •'■ .i D. tt £. 235.

OF PENNSYLVANIA, 511

spccts personal property, it is a mere evidence of iVaiid which 1809.
may be rebutted by circumstances; and so are the cases cited. ^yTZr
In Edwards v. Harbcn the deed called for immediate posses- ^,.
sion, and the grantor verbally stipulated for a possession of Tranklin.
fourteen days. What the court say is therefore with rela-
tion to such a contract, and they thought proper to treat it
as full evidence of fraud; but it docs not resemble the present
case. Thev held immediate possession to be necessary; but this
floes not exclude all mesne acts; it implies convenient time
without delay, as in Rex v. Francis; (a) and there was clear-
ly no delay here. The deed was executed on Saturday night;
Stmdai-f was not a day for liusineas; and on Mondan^ Berthoii's
own execution made a delivery impossible. There was no sti-
pulation that the grantor should remain possessed; and the ob-
stacle to delivery was the conduct of one of the parties who
now set up the objection.

The next is the appointment of his own trustee, «ot a
creditor. This also is a mere circumstance. Cases may occur
in which such an appointment would be almost conclusive
evidence of fraud. But here the very deed provides for an
appointment by the creditors; and therefore the argument of
possible fraud and mismanagement fails. Besides, the trustee
M'ould have been amenable to the creditors, without this pro-
vision, by our act of assembly. 1 St. Laius 690.

Another Is, that no money was paid by the trustee. The
deed expresses, first, the consideration of debts; which is a
special and a valual)le consideration. Nvgent v. Gijford. (b)
Secondlv, the receipt of one dollar, though the jury negative
it. It is however clearly settled, that if the deed make men-
tion of monc\- paid, and in truili no money is paid, yet the
Ijargain and sale is good; and no averment will lie against this
which is expressly affirmed by the deed. Shej). Touch. 223.

Anollier is, the want of a schedule. There is no case in
which this has b»:en a substantive objection to the deed. Here
the deed was an authority to demand the books, whicli would
be the best sche lule, since every thing was conveyed; and al-
though tlie omission of the document was relied on in Bard
v. J'itzsimmoJis^ yet it is to be observed, that the reasons of the

512 CASES IN THE SUPREME COURT

1809. judges for overthrowing that assignment were different. The
court was divided three to two upon the main question; and

^, they took all the minor objections in connexion with the

Fhanklin. strong and peculiar feature in that deed — a resulting trust to
the debtor before the creditors were paid.

It is also urged that no time is limited for the distribution.
The act of assembly furnishes a remedy against improper
delay. There is moreover no limitation of time in the assign-
ments under the insolvent laws; and all that the debtor could
do, he has done, by requiring the distribution to be naade as
soon as possible.

The only remaining point is the relation of the deed. It is
conceded that the acceptance of the grantee is to be presumed,
when the deed is for his i>cnefit. This deed, it is true, is
neither a gift nor a reward; but it is the creation of a trust in
the grantee, which it is merely an act of justice, and a per-
formance of the social duty each man owes to the community,
to accept. The law will therefore presume an assent, until a
disagreement is shewn. It is not a question, whether the deed
relates back so as to cut out mesne acts, but whether the
estate was not out of the grantor, eo instantly the execution
was complete; and to this point, the case of Thompsons, Leach
is full, {a)

Rcphj. The case of Thompson v. Leach is of very doubtful
authority. The opinion of Ventris^ upon which the defendant's
counsel rely, was opposed by three judges in the common
pleas, whose judgment was affirmed by the king's bench; and
although this judgment was reversed by the house of lords,
there were ten judges against the reversal. But give it its
full weight: The whole argument of Ventris is upon convey-
ances at common law; and he expressly avoids saying any
thing of conveyances that work by the statute of uses. 2 Ventr.
201. Even such conveyances at common law, as require
some reciprocal act from the grantee, he excepts out of those
to which his assent is implied, as exchanges. And in the pre-
sent case, as the trustee covenants for the performance of the
trust by accepting it, it is a reciprocal act, not formal, but

(a) 2 Vaitr. 198. 1 Shomi.ZQQ- S. C

OF PENNSYLVANIA. 513

substantial; and therefore comes fully within the exception of 1809.

Ventris, Wilt

Cur. adv. vult. ^_

Franklik.
Upon this day the judges delivered their opinions.

TiLGHMAN C. J. These causes come before the court on a
special verdict, found in the action in which Wilt is the plaintiff.
In the action by Berthon and son^ it is agreed, that it shall be
decided on the facts found in the verdict in Wilt's suit.

Two points were made by the counsel for the plaintiff. l.That
under the circumstances stated in the verdict, the deed from
Matt/lias Keelif to yol^n Bartholomeru is to be considered as
fraudulent and void. 2. That supposing it to be good, it had
no operation till the 7th of March^ when it was first made
known to Bartholomeiv., and received his assent.

In support of the first point, it was contended that the deed
was void bv the stat. 13 El'iz. c. 5., and by the principles of
the common law; because it was made with an intent to defeat
the action of IFilt, who had obtained a verdict against AW//
the same dav the deed was executed; because it was not at-
tended with delivery of possession of the property conveyed;
because it vested the management of Keely^s whole estate in u
trustee of his own choosing; because there was no schedule of
the property; and because no money was paid hy Bartholomnv
to Keeltf.

I will consider this subject under two points of view, which
will include the different positions taken by the plaintiff's
counsel.

1. What was the intent of the parties?

2. In what manner has their intent been carried into effect?
1. As to Bartholomew the grantee, there is no intimation of

his having entered into any improper collusion with Kccly. He
knew nothing of the deed till after its execution; and it does
not appear that he was any way interested in it. The manifest
intent of Kcelij was to ])rcvent Wilt from obtaining an)' prefe-
rence by his judgment, and to put all his creditors, without
exception, on an equal footing. There appears to be nothing
immoral or unfair in such intent. On the contrary, it is the
object of well regulated societies, where commerce flourishes,
to obtain an equal division of th« property of insolvent traders.

514 CASES'IN THE SUPREME COURT

1809. The statute of 13 Eliz. c. 5. (the provisions of which go no
^Y'lLT fi^irthcr than the common law as 7iow understood) never had
T. it in contemplation to invalidate a fair transaction. It was
Franklin, made to avoid fraudulent conveyances, intended for the pur-
pose of defeating, hindering, or delaying creditors of their
just dchts. The parties to such convejances were considered
as criminal, and subject to a penalty, to be recovered bv action
of debt or information. The statute is declared to be made for
the purpose of avoiding " feigned, covinous, and fraudulent
" conveyances, bonds, suits, judgments, and executions, which
" were devised and contrived of malice, to the end, purpose,
*' and intent, to deloif^ hinder^ or defraud creditors and otheis
" of their just and lawful actions, suits, debts," &c. &c. There
is nothing in the statute to hinder a man from giving :a prefer-
ence to any creditor he pleases, before or even after an action
brought against him. It was never supposed that it would pre-
vent an executor from preferring one creditor to any other ol
equal degree, by a voluntary confession of judgment, although
the creditor, who brought the first suit, was thus entirely defeat-
ed. An executor indeed could not give a preference to a debt
of an inferior nature; but that was because he would thereby
be guilty of a devastavit: a reason which does not apply to the
case of debtor and creditor who are both living. It was express-
ly decided in Hoibird v. Anderson^ 5 D. ^ E. 235., that a
debtor, being sued to judg-rne7it by one of his creditors, might,
before the time when execution could be taken out, prefer
another creditor by a Aoluntary confession of judgment,
by virtue of which an execution was immediately sued out,
and levied on the goods of the debtor. In Nu7in zwd Ladbrook
v. Wilsmorc, 8 D. £9" E. 529, 530., lord Kenyan declares his
opinion, that, " putting the bankrupt laws out of the case, a
'* debtor may assign all his effects for the benefit of particular
" creditors." Now, if preferences of this kind are lawful, much
more so is an act which gives a preference to no creditor, but
prevents any one from obtaining a preference^ and puts all on
an equal footing. It may be objected, that this case comes with-
in the words of the statute, because Wilt has been hindered^
delayed^ and in part defeated, by this deed. It is true he has
been delayed and partly defeated, but not in a fraudulent man-
ner. We must give the statute a reasonable construction. Wilt
v.ould have been delayed and partly defeated, if, immediately

OF PENNSYLVANIA. 515

after the commencement of his suit, Keely had, with the con- 1809.
sent of all his other creditors, executed a deed to trustees of ,,, ,._,
the creditors' own choice, for the purpose of disposing of his ^,^
estate, and dividing the proceeds equally among them. But IFrvnkhx.
imagine no one would contend that in such case the convey-
ance was not good.

For the reasons which I have given, and many others which
might be given, I conclude that the intent of Kecly^ so far as
it appears by the verdict, was fair and lawful.

2. Let us next consider the tneans by which he carried his
purpose into efllct. He executed a conveyance of all his pro-
perty^ without specifying it, to a trustee of his own choosing;
with power to the said trustee to convey part, or the whole of
the said property to another trustee or trustees, under the con-
trol and direction of his creditors. Keeiy and his wife imme-
diately acknowledged the deed before a judge of the court of
common pleas of PhUadelph'ia county. This was on Saturday
night. On Mondaif following he confessed judgment to Bcrthon
and .9o«, who immediately took out a //. fa. and levied on his
goods, still remaining in his possession. On Tuesday night the
deed was given by Keely to a messenger, to be carried next
morning to liartlwlomew^ who lived twenty-three miles off;
and on Wednesday it was delivered to Bartholomerv^ who then
for the first time was made acquainted with it, and who con-
sented to act as trustee.

By the execution of the deed, Keely irrevocably parted with
all power over his estate. And it is to be remarked, that the
transaction was not secret. The judge who took the acknow-
ledgment must have been privy to the contents of the deed,
because the law required him to make the contents known to
Mrs. Keely when he took her acknowledgment.

As the counsel lor the plaintiff relied a good deal on the
case oi Burd v. l-"ttzsimmojis Sec, decided in the high court of
errors and appeals in this state, in support of some of their ob-
jections, under the head which I am now considering, I think
it proj)cr to mention that xXxa pointy dceidcd there, is very litth
to the j)resent purpose, because the two cases arc csscntiallv
different. In that case a time was fixed, within which the cre-
ditors were required to give their assent to all the conditions
of the deed. The shares, of those who did not express their
assent, were to be paid over to Mr. M^Clenarhnn^ the person

5 16 CASES IN THE SUPHEJME COURT

1809. ^^''^° made the convtyance, and who was notoriously insolvent;
7y and there was reason to suppose thac it would have been al-

^, most impossible for the whole oF the creditors to receive notice

pRANKLrN.of the deed, and signify their assent within the limited time.
The authority of that case goes no farther than the main point
decided. As to the reasons on which the different judges foun-
ded their opinions, thev wtre various.

I will now consider the particular objections urged bv the
plaintiff's counsel in the case before us.

1. The trustee was chosen bv the debtor himself.

Although it is most prudent and proper to consult the cre-
ditors, as to the choice of a trustee, when it can be done without
great inconvenience, yet where there is no bankrupt law exist-
ing, (which is our present situation) I know of no law which
forbids the debtor to make the choice himself. There is no oc-
casion now to decide, whether, under certain circumstances, the
choice made by the debtor v/ould not be conclusive proof of
fraud ; as where the trustee should be an intimate friend or
near relation of the debtor, desperate in his fortune, and of
notoriously bad character. No imputation whatever is thrown
on the trustee here; and it is of some weight that the deed
contained an opening for a choice to be made by the creditors,
which in fact afterwards took place. It is to be remarked too,
that had Keehj waited to consult his creditors after Wilt obtain-
ed his verdict, the judgment would have been entered, and
the preference of Wilt^ as to the real estate, been established.
Under the bankrupt system in England^ an attempt by an in-
solvent trader to throw the management of his affairs into the
hands of a trustee of his own choice, is in direct violation of
the whole spirit and system of the laws, and therefore amounts
in itself to an act of harikruptcij. Many cases of that kind were
cited; but they are inapplicable, being founded wholly on the
English statute law.

2. As to the want of a ^chedidv. It is very desirable that con-
veyances of property should be accompanied with schedules.
They are a great convenience to creditors, and a check upon
fraud in the debtor. But they are more necessary, where part
of a man's property is conveyed to particular creditors, than
where the whole is conveyed for the benefit o^ all; and I am sa-
tisfied that many conveyances of the latter description have
been made ivithout schedules, and proved very beneficial to the

' OF PENNSYLVANIA. 517

creditors. The want of a schedule is a circumstance proper to 1809.
be taken into consideration; but I cannot think that it is, in it- 77^

V\ I LT

self, conclusive evidence of fraud. i>.

2. The next objection is the nondelivery of possession; thisFnANKi-iN.
applies only to the goods. I agree, that in general, the conti-
nuance of possession in the grantor is one of the strongest
marks of fraud, espcciall}' if such possession continues a con-
sidtrable length of time. I agree too, that in many cases pos-
session has been adjudged to make a conveyance fraudulent,
where no actual frauds no criminal intent, was supposed to ex-
ist. Although the statute 13 £/i2., as 1 mentioned before, is
bottomed on the supposition of an immoral intention, yet it
has been judged necessary to determine, that certain circum-
stances, which, in their nature, tend to deceive and injure cre-
ditors, shall be considered as sufiicient evidence of fraud. Such
was TivijUtPs case., (the leading case on possession^ where the
creditor, to whom a general conveyance of the debtor''s ivhoh
property was made, in satisfaction of a just deljt amounting to
more than the whole property, suffered the debtor to retain
the possession, to use the property as his own, to dispose of
what he pleased of it, and to put his oivn mark on the sheep.
There is no searching the heart of man ; but a possession of
this kind tends so directly to deceive the world, that it was
fair to conclude, that the conveyance in Tivijne''s case was at-
tended with some secret trust lor the benefit of the debtor.
Possession is not always in itself conclusive evidence of fraud,
but is open to explanation. In the case before us, the deed was
executed late on Saturday night. Sunday is not a day of busi-
ness. The trustee lived twenty three miles off. On Monday the
goods of the debtor were levied on by Bcrthon and son. Being*
m custody of the law, the necessity of a delivery to the trustee
was less urgent. Indeed I do not see how a delivery could then
have been made. All that could be done, was to inlbi ni ilie
trustee what the goods were; and that they had been taken in
execution. Under these circumstance;!, I think the nondelivery
of possession is sufficientlv accounted for.

4. The last objection, to the validity of the deed, is that no
money war. paid by the grantee. I do not think this objection
can be supported. The bargainee undertakes to pay the whole
proceeds of the estate to the creditors of the bargainor, for his
Senefit. But independent of that, as the objection is merely

\*OL. I, .'3 U

518 CASES IN THE SUPREME COURT

1809. technical, and applies only to x\\cform of conveyance, it is an-
xirr.jZ swered by the opinion of Anderson Justice, in Smith v. Lane^
T. 1 Leon, iro, and of the whole court in Fisher v. Smithy Moor.
Fhanklin. 569, that if a consideration of money is expressed in a deed of
bargain and sale, there shall be no averment or evidence re-
ceived to the contrary. I adopt this principle so far as to sup-
port the formal part of the conveyancej to go farther is not
necessary.

Having thus considered the principal objections to the deed,
my opinion on the whole is, that it is valid. It only remains to
determine at what time it took eflfect; whether on its execution,
or on the Wednesday following, when the assent of the grantee
was expressly given.

This does not appear to me to be a point of much difficulty.
The plaintiff's counsel concede, that where the deed is for the
benefit of the [grantee, it is reasonable that his assent should be
presumed. They were right in this concession. I think it rea-
sonable to make the same presumption, where the grantee is
required by the deed to do an act useful to his neighbour, and
not injurious to himself. This presumption is liable to be re-
butted by shewing an express dissent. A man cannot be forced
to accept a conveyance against his will. But, in the present in-
stance, the presumption is confirmed by the assent of the gran-
tee, the moment he was informed of the conveyance. 1 am
therefore of opinion that it took effect from the execution on
Saturday night; of course it is not subject to the lien of the
judgment of the plaintiff Wilt.

Upon the whole of the special verdict, my opinion is in favour
of the defendant.

Yeates J. If the assignment made by Matthias Keely to
"John Bartholomew^ in trust for all his creditors, " in just and
" equal proportions according to their respective demands,
" without any preference or advantage to one more than
'' another," can be sustained at law, to take effect from its date,
the n*ecessary consequence will be, that judgment must be en-
tered for the defendant; because the assignment is prior in
point of date to the judgments under which the plaintiffs seve-
rally claim. But the assignment is attempted to be impeached on
several grounds, which I shall separately consider.

1. It has been objected, that there is no good consideration

OF PENNSYLVANIA. 519

to give validity to the assignment, the jury having found that no i goO.
money was paid by the trusti-e to Keehi. The instrument recites \Vilt
that " Kcely owed and was justly indebted unto divers persons v.
" in divers sums of money, but, being incapable to pay off and Franklin.
" discharge the same to their full amount, was nevertheless de-
*' sirous, so far as lay in his power, that they should be satisfied
" in just and rateable proportions, according to their icspective
"demands;" and that in consideration as well of the premises, as
of 7a'. Qid. in hand paid by the said J. B. the receipt whereof
"was thereby acknowledged, did grant, &c. In reason and sound
sense, money, honestly due from the party assigning, is equiva-
lent to money- paid down; and we have lord Hardwicke*s au-
thority that it is a good consideration, (a) OtliL-r judges have
adopted the same doctrine, and have said (Jb) " that in deciding
" questions of this kind, the courts have always disavowed in-
" quiring, whether or not the consideration be equivalent; they
*' will not weigh it in very nice scales, if it be an honest trans-
" action." Very small considerations have been holden suffi-
cient to give validity to a deed. Besides, the assignment
expressed that 7s. 6f/, was paid by the trustee. This is sufficient
to raise an use under the statute; and though it is inserted in
the special verdict, that no money was paid, it is clearly set-
tled, (cj that there can be no averment against the consideration
contained in a deed, so as to affect its binding force; and conse-
quently it is not susceptible of proof.

2. It has been urged that the assignment took no eflect until
the rih Jl/arc/i, when Z^«r///6/«j;«cTy assented thereto, and there-
fore the judgments, entered on the 5th March^ have their full
operation. To this it is answered, that the assent, of the party
that takes, is implied in all conveyances, by intendment of law,
till the contrary appears; and that this is as strong as the ex-
pression of the part)-. Stabit prcvHumptlo donee probetur in con-
trarium. (rt') This doctrine has been asserted by Ventris Justice,
in his elaborate argument in the much disputed case of Vhomp-
son v. Leach., (r) which commenced in the common pleas, was
afterwards carried by writ of error into the king's bench, {f)
and was finally determined in the house oi lords, upon the rea-
sons contained in the argument of Vcntrls; so that his opinion

(a) 1 Att. 46.3, 4. (</) 2 Ventr. 202-

ib) 8 T. 1{. 529. (r) 2 Vcntr. l'J8. 1 6'/iow. 29Cy I A. 7. 2H1.

52U CASES IN THE SUPREME COURT

1809. finally prevailed, {a) In Meux and others qui tarn v. Hoxueli
Wii^ and Atlee. (h) L<nvrence J. asks the plaintiffs' counsel these
V. questions during their argument: " May not a person indebted
Franklin, u to several, without the imputation of fraud, confess a judg-
" ment to a trustee, to enable him to take all his proi)t rty for
"the benefit of all his creditors equally? Does not a court of
"equity act upon the same principle, in the distribution of
" assets? And why should there be a previous consent ot the
" cestui que trusts, if they consent afterwards:" The fact more-
over is, that here was an acceptance of the trust, in a reason-
able time after it was created. The trustee lived twenty three
miles from Keehj. The assignment was executed on Saturday
night of the 3d March, at 10 o'clock. On 3Iondoy the 5th, the
goods and furniture were levied on by the sheriff at the suit of
Peter Berthon and son. On Wednesday the 7th, Bartholomew
accepted the trust; and on the 10th, pursuant to a provision
contained in the deed, he assigned the same to Thomas Allibone
and Caleb North, who had been elected by the creditors. On le-
gal principles therefore, the acceptance will refer back to the
execution of the deed, and form one transaction, done at the
same time.

3. It is objected that Barfhohmerv was no creditor, nor
elected b}- the creditors in general to take the assignment. I
do not see how his not being a creditor can detract from the
validity of the instrument. If, indeed, the assignee had been
insolvent, or was incompetent to the execution of the trust, it
would afford strong evidence of meditated fraudj but neither
of these facts is found by the special verdict; and they cannot
be presumed. Besides, this assignment contained a proviso,
that Bartholomexv should "grant and assign the premises, or
*' any part thereof with the appurtenances, to one or more
" trustees, under the control and direction of the creditors."
And it is found by the special verdict, that in pursuance
thereof, the said John Bartholomew assigned the premises to
Thomas Allibone and Caleb North, on the 10th 3Iarch follow-
ing, who had been authorized by a meeting of the creditors to
take the said assignment. This brings the case within the law
maxim, omnis ratihabitio retro trahitur et mandato ceqwpa-
ratur.

{a) 2 Ventr. 208. 1 Show. Par. Ca. 150. (6) 4 Ecuit 9.

OF PENNSYLVANIA. 521

4. It has been insisted that no time has been limited, 1809.
within which the execution of the trust should be completed. ^^
The words of the assignment, as to this point, are, " that the ^,^
'^trustee shall forthwith take possession and seisin of theFuANKLix.
" premises, and within such convenient time, as to him shall

" seem met-t, by public or private sale, for the best price that
" can be procured, convert all and singular the estate, real,
"• personal, and mixed into money; and shall, as soon as possi-
" ble^ collect all and singular the debts and sums of money
" above assigned, and, after deducting the costs and charges
" of the trust, shall pay and apply all the moneys arising
" therefrom," &c. The force of the objection is greatly taken
off, by the provisions of the act of 22d January 1774: (a)
The commissioners appointed by the courts of common pleas,
have sufficient powers to oblige the trustees and assignees of
insolvent debtors to execute their trusts, and can prevent all
unreasonable delays. Where the estate of a person, who has
failed in trade, is scattered and dispersed in different pl;xces,
it is next to an impossibility to fix a period of time, within
which all his accounts can reasonably be expected to be ad-
justed; and in the cases of debtors discharged under the insol-
vent acts, no period is ever fixed, within which the assignees
shall close their trusts.

5. It has been further insisted, that the goods of Kecli/y
and his real estate with the title deeds, did not pass into the
hands of the assignee; and that the debtor's continuance in
possession is a mark of trust if not of fraud. I agree the gene-
ral rule to be, that in the transfer of chattels, (/») unless pos-
session aciompanies and follotvs an absolute deed, it is fraudu-
lent and void as to creditors; and that the vendor's continuing
in possession is inconsistent with such deed. Yet there arc
cases where, though possession was not delivered at the time,
the conveyance was not held to be fraudulent. To form a cor-
rect judgment on this head, we must distinctly mark the dif-
ferent events, as they occurred in order of time. On the 3d
March^ the assignment was executed and acknowledged be-
tween 9 and 10 o'clock at night, Rartholotncw not being pre-
sent. This was on Satnrdaij. The goofls and furniture of
KiiJif remained in his possession the residue of that night,

',a) 1 fit Lavin 690. (/.) 2T H 594. 2 Brn. Cha. Ca. 650.

522 CASKS IN THE SUPREME COURT

1809. ^"t^l until Mojiday morning, when the sheriff levied on them
WnT~'** ^^^^ ^"'^ °^ PtYrr Eerthon and son. On Tueftday the 6th, the
t;. assignment was sent on to Bartliolomcru^ who accepted it on
Franklin. the next day; and on the same day Keely was imprisoned for
drbt. On the 10th March, Bartholomciv assigned to North and
Allibone, in pursuance of the requisition of the general credi-
tors. An execution in the house would prevent the assignee
from taking possession of any part of the propertv on Monday;
and it would be straining matters very hard to suppose that
Keely obtained any false credit by the goods and furniture con-
tinuing in the house as usual, the small remnant of Saturday,
and the whole of Sunday. It is not found that he either bought
or sold, or in any manner dealed during that interval; nor that
the title deeds of his real estate were fraudulently withheld
from his assignee. It has been resolved, that not taking pos-
session is only evidence of fraud, («) and, like other equivocal
facts, may be explained by circumstances. As to tht- title deeds
being retained by Keely, this circumstance would not have the
same effect here, as possibly it might in England, where they
have no general statute for the registry of deeds; and it has
been determined at nisi prius at jReading in May 1792, between
Evans, executor oj' Evans, v. ^ones £sf ux. administrator of Ni-
cholas, that it was not necessary that mortgagees should have
possession of the title papers.

6. Lastly, it has been objected, that no schedule accompa-
nied the assignment. Much stress has been placed on the de-
cision of the case of Burd, plaintiff in error, v. Fitzsimvions et al.
in the high court of errors and appeals. (Ji) As I understand
that case, the majority of the judges determined the assignment
of Mr. M'-Cler.achan to be invalid on several grounds, but
chiefly, as I apprehend, on this, that under the terms of the
deed, a trust resulted to the debtor himself, for the proportions
of all such creditors, as should not agree in writing to accept
thereof, within the period of nine months from the date. The
creditors were widely dispersed, many of them were beyond
sea, and the assignees were not provided with the means of
executing the trust reposed in them. It is true, two of my
brothers were of opinion, that there should have been a sche-
dule annexed, designating the creditors, or explanatory of the
debts and property. But with all due deference, I would ob-

ia)l Burr.AM. (b)ADaU.7&-

OF PENNSYLVANIA. 523

serve, that I can find no positive rule of law, or commercial 1809.
usage, which imperiously demands a schedule of creditors or ^vTlt
debtors, to confer validity on a general assignment. I can find v.
no such precedent in the books, nor have any such occurred to Fkanklin.
me while at the bar or on the bench. I admit, that such a list
may contribute to facilitate the labours of the assignees; but
the question now is, whether it be essentially necessary. It the
books of the debtor have been well kept, they would afford
much better sources of information, than an)- schedule; if ill
kept, no man of extensive dealings can possibly know the true
state of his accounts with individuals. In most cases the de-
mands of creditors on the spot can be ascertained by convening
them together.

It cannot be denied, that this assignment was made for the
express purpose of preventing a preference to the plaintiffs in
these suits; or, in other phrase, of putting the creditors in gene-
ral on one common footing, without any kind of priority. That
this was an immoral act, will not be asserted. Was it then ille-
gal, and prohibited by the words and spirit of the stat. 13 Eiiz*
f. 5.?

That act, as well as the stat. 27 Eliz. c. 4. is in affirmance
of the common law, whose principles and rules, as they are
now universally known and understood, would, according to
lord Mcnififield^ (a) have attained every end proposed by those
statutes. The question in every case is, whether the act done is a
bona fide transaction; or whethi-r it is a trick and contrivance to
defeat creditors. The plaintiff's counsel have urged that this
assignment was made, " to the end, purpose, and intent to de-
" lay, hinder, or defraud creditors and others of their just and
" lawful actions," Sec. Hut lord C. J. Ellcnborough has declar-
ed in Neiix^ qui tam^ v. Ilowdl^ " that it is not every feoffment,
" judgment, &c. which will have the effect of delaying, or hin-
" dering creditors of their debts, that is therefore fraudulent
" within the statute. For such is the effect /;r5 tanlo of every^
" assignment, th:it can be made by one who has creditors.
" F.very assignment of a man's propcrtv, however good and
" honest the consideration, must diminish the fund out of which
" satisfaction is to be made to his creditors. Hut the feoffment,
"judgment, &c. must be devised of malice, fraud, or the like,
" t(v bring it within the statute." Were there then, in th'-. words

S'2'i CASES IN THE SUPREME COURT

1809. of the statute, " malice, fraud, covin, collusion, or guile," iu
\v7lt ^^^ present instance, " to the intent to delay, hinder, or defraud
V. " creditors, not only to the let or hindrance of the due course
Franklin. tt ^^d execution of law and justice, but also to the overthrow
" of all true and plain dealing?" The trust is in express words,
*' for the use of all the creditors, in just and equal projiortions,
*' according to their respective demands, without any preference
" or advantage to one more than another." In every civilized
country in Europe^ it has been anxiously attempted to effect an
equal distribution of the property of insolvent persons. In
Great Britain^ it is said by lord Mansfield., (a) that the whole
bankrupt law has two main objects in view, to wit, the manage-
ment of the bankrupt's estate, and an equal distribution among
his creditors. Such was the spirit of the system of bankrupt-
cy of the United S'tatct, under their act of April 1 800; and such
was the spirit of the laws of this state, passed anterior to the
adoption of the constitution of the United States. I cannot
bring myself to believe, that a conformity to such laws can be
denominated either an actual or legal fraud, and shall conclude
with the strong expressions of Grose J., in Meux v. Howell^
before cited: " Here there is nothing like a fraud; and it
" makes one shudder to think, that persons, who appear, like
" the defendant, to have acted most honestly, should have been
" in any hazard of being subjected to punishment, for having
" endeavoured to procure an equal distribution of his property
" amongst all his creditors."

My opinion is, that judgment should be entered for the de-
fendant, in both suits.

Brackenridge J. The first thing that strikes me in this
case, is, that it was not until the last moment, that the debt-
or thought of making an arrangement for the distribution
of his property, with a view to a pro rata payment of hie
debts. It was not until after a verdict on which judgment
was about to be entered, and execution to issue. It may be
said that the verdict was unexpected, and that there may have
been a defence in fact, to the action, though he had not been
able to make it out. But we find that he confesses judgment
in another case, to which he had set up a defence, and which
lessens the presumption that he honestly thought in this case

(-i) 1 Burr. 47G.

OF PENNSYLVANIA. 525

that he had a deftnce ; for it proves that he was not hicapable jgOQ.
of contesting, or at least delaying the payment of a just debt. "vV^jlt
Now, if the onlv motive had been the payment of his debts, it -y.
would have looked better to have begun sooner. As the caseFnANKi-iN.
is, it has the appearance of being driven to it, and a suspicion
arises of a contrivance to save something for himself.

The second thing that strikes me, is, that the trustee select-
ed is not an indifferent person; but one who acknowledged in
the words of the case stated, " that he was a friend of the fami- • .

ly, and was willing to oblige him (the debtor) in this respect;
that he was very willing to serve, but that his illness would
prevent him from coming to the city." Was there no creditor
at hand, who could have been consulted in the constituting a
trustee? Or was there no indifferent person who could have
been prevailed upon to be made a trustee? One near at hand, in-
to whose possession the property could have been delivered
for the use of the creditors. As the case is, there is no sub-
stantial difference from the debtor being his own trustee,
and having it in his power to do what he pleased with the
property.

It is to be remarked, that the creditors are in the power of
the debtor, with respect to the debts due; and might he not
say to a particular creditor, how much do I owe thee? 500 dol-
lars. Take thv bill and write down 1000 dollars. Is there no
danger of such unjust itezuarcL/iifi^ where a person is about to
be insolvent; and where the liquidation of tlie debts, is with
a trustee of his own nomination?

The third thing that strikes me is, the not delivering a sche-
dule or list of the property, which is the next thing to the de-
livering possession of the property itself; and which might be.
done, where the property itself could not be delivered; books,
pajjers, &c. An inventory of the properly is the next best thing
to the possession of the property itself. If the deI)tor had made
a sale directly to any <jne, for a valuable consideration, would
he not be likely to give possession? Would it not be a Ijadgtf
of fraud if he did not? Where that could not be done, would we
not expect that he would come as near it as possible, by deliver-
ing an inventory of the property transferred? Where the pos-
session is not changed, the property remains in the power of
the debtor, and may be disjjosed of by him. liut an inventory
Tjpay be a check upon the embezzlement.

Vol. I. ^ X

526 CASKS IN THE SUPREME COURT

18(XJ. ^ '^^ ""*^ say that because every tiling was not done, that

IT^ miglu liavc bt-en done, the assignment is void; but the leaving

,, anv thing undone, is so far a detect in excluding the presump-

FRANKLiN.tion, that the debtor has consulted his own interest in making

the arrangement; because he has not put it out ol his power to

have an interest, from an understanding with the trustee, or

particular creditors.

It will be said the exigency was pressing in this case; and
that it ought to be a sufficient answer, that the time did not
serve to call the creditors together, and make an assignment,
and deliver the property to them; or to get a trustee of their
nomination, and to deliver jthe property to him for their use;
or to make out a schedule of debts and credits, or an inventory
of the effects, and to deliver this to the cixditors or trustee: that it
was impracticable before the judgment would have been a lien,
and the execution attached, and the estate taken by particular
creditors: that equality is equity: that it was the part of an
honest debtor to endeavour to provide for ii pro rafa distribution
of his property; and that having done all that could be done, in
the short space of time he had to act, it ought to be supported.
But I think it of equal, or of more importance, that no oppor-
tunity be given to a debtor to arrange for himself at the ex-
pense of his creditors; and which opportunity he will have, if
such a disposition can be supported. We shall have instances
enough of this kind of last will and testament of a debtor about
to be insolvent. If it is meant to provide for the payment of
debts honestly, and to let the whole go to that purpose, why
begin so late? Why not sooner look out, and make distribu-
tion? Insolvency in itself carries xvith it the presumption of dis-
honesty; for it is oftener the result o{ imprudence^ than ot mis-
fortune; and I cannot call the man who makes use of the pro-
perty of others, even imprudently, a perfectly honest man; and
the man, who runs in debt, makes use of the property of others.
The scripture tells us, that " he who maketh haste to be rich,
shall not be innocent;" and it is usually such as make haste to
be rich, that run in debt, and become insolvent. I believe I
Aight- sav, with great safety, that they are seldom innocent.
The law treats the man who is about to take the benefit of the
inso!vent act, as a person somewhat to be suspected; he is ex-
amined on oath, and undergoes a purgation. We lay hold of
his conscience, and superadd the fear of a prosecution for per-

OF PENNSYLVANIA. 527

jury, to the sense of moral obligation. We dre far from leaving 1809,
tiie disclosure to a simple declaration. The presumption is, 7^
that it is his purpose to defraud; and hence notice to creditors, ^_
and the privilege of crossexamining in open court, in order to Frankmn..
satisfy all concerned with respect to the fairness of the surren-
der, and account of property.

Where the debtor undertakes to make an equal provision
for the payment of his debts, and professes good motives, he
presents himself with a better appearance somewhat; never-
theless, we are justified in distrusting his motives.

I think it reasonable to require of him everything that will
rebut the presumption of an interest for himself.

It may be, that the oldest creditor has not sued first, or first
recovered judgment. But the presumption is, that the patience
of the oldest creditor has been first exhausted, and that he has
sued first; and on the principles of natural justice, the oldest
debt should be first paid. The law cannot carry the adminis-
tration of justice to such extent, as to take notice of the oldest
debt. It could not be conveniently practicable. But it will
take notice of the suit first instituted; and the maxim will
apply, prior i?i tempore potior in Jure. In cases where the
order of paying debts is left to the law, it will give a prefer-
ence to a judgment; and between judgments themselves, it
will respect the priority. Here the debtor has undertaken to
cut out judgments, and to put them on a fooling with other
debts. It is true, he may have thought some of them of more
meritorious consideration; but with me the more natural pre-
sumption is, that he was irritated at the process that had been
instituted, and the recovery against him; and that, for that
reason, he wished to defeat the recovery, and give it no other
advantage than other creditors had; which I think unfair, hav-
ing put them to the expense and delay of legal proceedings.
And tliough the conclusion may not be inevitable, that he was
com!)ining an interest for himself, or that it was the dominant
and ruling motive, yet I cannot see but that he had it in his
power to conceal, and save property for his own use, where
the trustee was of his own nomination, and where a number
of the creditors were rendered favourable l)y the race made to
get ahead of the judgment and the fxccution, and to j)ut them
all on a footing.

528 CASES IN THE SUPREME COURT

1809. ^t has been said, that fraud is not to be presumed; it must

■y\-,LT ^^ proved. But this is proving it by circumstantial evidence.

7.. Fraud, in most cases, is but a conclusion from circumstances;

I uANKLiN.and circumstances are but presumptive jjroof; and therefore it

is not the meaning of the maxim, that presum])tion shall not

arise from circumstances.

But it has been argued also, that fraud not being found by
the jury, the presumption cannot be weighed and the conclu-
sion drawn by the court. But on a special verdict the conclu-
sion must be drawn by the court; for it is the nature of the
special verdict, that it be left to the court to infer from the
facts what the jur}- might have done had they taken upon
themselves to infer, and give a general verdict, which contains
the conclusion of fact from the evidence, and the conclusion of
law from the fact. The jury, in this case, have found the facts
from the evidence; and, as in the case of every other special
verdict, it remains with the court to draw the conclusion of
fraud, whether it be a conclusion of fact, or of laiw. Doubtless
t?ic conchision of fact must be in the minds of the court, before
ihcy can draw the conclusion of law.

Under the circumstances of this case, if I am to draw the
conclusion, it will be, that the debtor had an interest in the
arrangement; but, even supposing that he had not, the dispo-
sition in the hands of a trustee of his own nomination, and
the property remaining with himself for a time, and no inven-
tory of the effects in the hands of a creditor, leave it in his
power to make use of the property after the assignment, and
before it comes to the hands of the trustee; and, for this rea-
son, I niMfit think such disposition against good policy, and
not to be supported. I think it belter, that a judgment creditor
should take the whole, or the greater part, of a delator's pro-
perty, than that a door to fraud should be opened by sanction-
ing such a disposition. The truth is, I do not much like the
idea of cutting out the judgment creditor, and taking the dis-
position out of the hands of the law, when it is just about to
take the property. A sense of wrong arises in my mind. I think
it unfair; the heart revolts; and the only difficulty with me is,
to analyse and give good reasons for feelings which I think
must be just.

But it is not necessary, in this case, to draw the conclusion
of fraudulent intention, or of legal fraud, so as to avoid

OF PENNSYLVANIA. 52?

the deed: that is, to render it absolutely void as between the 1809.
parties. It will be sufficient if it can be avoided, or rendered ~,,t

^ . W ILT

voidable, with regard to those who do not become parties; ^,
and the operation restrained in the case before us, short of Franklin.
aftVcting the lien of the execution. I will admit that a debt is a
valuable consideration, and will support a conveyance as much
as money paid at the time of the conveyance; for it must be
considered as a consideration past. But the law will not pre-
sume an acceptance bv the creditor, as in the case of money
paid, or where the grant is a gift. Because it does not neces-
sarily follow, that it will be for the benefit of the crtdiror, or
that he would think it for his benefit; and it is upon this ground
alone, that the law will presume a subsequent assent. This may
be collected, in particular, from the argument 2 Ventris 198.
v.'here the case was a grant on a consideration good, not valu-
able, and the estate a gift. But it does not ioliow, with moral
certainty, that a creditor will take property for his debt, or
wait the sale of property, under the management of a trustee
not of his own nomination. Money is what he had a right to
expect; and it may be, that he will insist upon money paid im-
mediately, or to be collected by the process of the law. Even
taking it for gran tiil, that the debtor is about to be insolvent,
and unable to discharge the whole of his demands against him,
it does not necessarily follow that he will take property, or wait
the sale of it, for the debt is still recoverable from the fu-
ture effects. But where the property conveved is not supposed
to be an equivalent, or will not satisfy the debt of every creaiior,
and a pro rata payment only can be eontempliited, it is not
an intendment of law that the creditor will accept. It may be
very probable that he will accept; but it cannot be legall}' infer-
red. The law will not impl\- it, as in a case where ^//c pro?/?
cannot but be for his benefit. But su|)posing a presumption of
law to arise that the creditors, other than the judgment credi-
tors, will accept, there can be no presumption that the judgment
creditors will accept, who have it in their power to take the
property immediately under executions. For these reasons,
the subsequent assent of the creditors, expressl)' given, will be
necessary to complete the transfer in this case; and the assign-
ment can have no operation until that assent is given.

But let it be supposed that in the case of a conveyance im-
mediately to the creditors, an assent to take may Ik- presumed.

53U CASES IN THE SUPREME COURT

1809. t'^^ assignment is not immediately to the creditors; a medium
11, is used: a trustee: and there is no consideration of the trust to

\V ILT

^, the trustee himself. It is not accompanied with any benefit to

Franklin. him; for anv benefit that is pretended is that of the debtor.
There is no presumption of law that he will undertake the trust.
It is on this ground that the principle must rest, that where the
trustee has no benefit, it is not to be taken for granted that he will
accept. The law to this effect is suggested in a late publication,
Roberts on Fraudulent Conveyances^ 430. " A general convey-
" ance or assignment to a sti-anger, in trust to pay the debts of
" the person conveying, is clearly not a consideration sufficient
"■' even to raise a use upon a covenant to stand seised. Nor will
" it suffice to support an actionable promise; for in such case no
" consideration moved from the promisee of advantage to the
" party promising." It is clear, therefore, that the assent of the
trustee is necessary to undertake the trust, before he becomes a
trustee, and an interest can vest for the cestui que trust. Until
that is done, there is no conductor of the interest; it remains
with the owner of the property. Nan constat that the trustee
named will undertake the trust. Although there is an act of
assembly, 1 St. L. 690., which provides for the calling trustees
to account, yet it makes no provision for the compelling any
one to be a trustee. It cannot therefore be taken for granted
that a trust exists; and that a delivery to one of the deed of
assignment to be delivered to the trustee, renders the delivery
complete for the use of the creditors. The property remains in
the debtor, and is liable to be taken for his debts, unless by re-
lation the subsequent assent of the trustee can be coupled with
the assignment in the first instance, so as to operate from the
date. This, as between the parties who subsequently assent,
there can be no doubt, will be the effect; for it is consonant
to justice, and to reason, that it should be so. It is a matter
between themselves; and the inchoate, or inceptive, and con-
cluding act make but one. It is all the same transaction. It is in
support of the intention of the parties, that the instrument should
operate from the date. But relation is a fiction; and, in fictione
juris semper subsistit equitas. Relation shall do no wrong to
strangers. 2 Vcntris 119. There are many authorities in the
books to this effect. But if there were not, it is such a principle
of reason and common sense, that it could not be doubted. If at
the date of the conveyance the property is not absolutely out of

OF PENNSYLVANIA. 53 i

the debtor, but the operation suspended until the subsequent 1809.
agreement of him who is to take, that suspension cannot inter- 7^:
cept the act of the law which attaches the property. I therefore v.
take it, that the assignment in this case did not take place of Franklin.
the execution.

Judgment for defendant.

Murray and another, Executors of Miller,
against Wilson.

In Error. Saturday,

April 1st.

ERROR to the common pleas of Philadelphia county. The com-

IVilson, the plaintiff below, brought an action for money !]J;5",f^f^j.'J^^^j
had and received by Miller to his use. Jlliller was prize agentvesscl which
for the Enterprise, a public vessel of war, and received the ^'''^^j^^^^f ^1^'"^'*
proceeds of a prize captured by her while Wilson was on board, g'wd witness
The question was as to the capacity in which the plaintiff was j" '^"j,p^^°^
entitled. To prove that he was entitled as a sailmaker, his^'jr/i'isithe
counsel offered in evidence the following certificate under the [^'j^au^c the
seal of the navy department. " Accountant's office, January i)l:iintlff's
" 1st, 1802: I do hereby certify that it appears by the rolls of p,!j'^^. |^, •
" the schooner Enterprise, filed in this office, that WUlium Wil- iV^ixre.
^^ son was sailmaker on board, from the 6th yuly 1800, to the ^.,,l.J|f^^,^^^'^.'^
*•'■ 5l\\ March 1801. Tho. Turner, accountant." This evidence tin; account-
was objected to; but it was admitted by the court. The defend- j^vy depan-
ant then offered in evidence the deposition of captain Sluav, the"'^"^ mul<r
commander of the Enterprise at the time the prize was made, t.i,.it j^,p.,rt.
to prove that the plaintiff was not a sailmaker but a common '"''"t. is cvi-
seaman, to which the plaintiff's counsel objected, because cap-
tain Shuiv, as commander ol the sdiooner, was interested in the
decision of the cause; and the evidence was accordingly over-
ruled by the court, who sealed a bill of exceptions upon both
points.

Chauncey for the plaintiffs in error. The certificate was not
evidence. A sailmaker is a warrant officer, appointed by the
president, 4 U. S. I.axvs 1:3. 'JO. 1J8; and it is an unyielding

532 CASES IN THE SUPREME COURT

1809. rule, that vhere a right is established by a specific authority,
~x7~, IT. the authority must be produced. It is the best evidence. An
V. attorney must produce the roll, a judge his commission; and so
Wilson, a sailmaker his warrant. T'tllard v. Shehbeare (a), Foster v.
Cale {b), 2 Roll. Ab. 574. But tlie certificate merely states that
it appears bv the rolls: which will not answer, for the court
must make its own conclusions. The least that can be offered
is either a sworn or oHice copy of the roll itself. Bull. N. P. 22G.
The accountant has no authority to give such a certificate, be-
cause he has not the custody of the seal. The secretary of the
department should certify. 4 U. S. Laivs 233. 470. As to the
interest of captain Sluni\ as commander, it will not bear an ar-
gument. He is entitled to three twentieths, if he was acting in-
dependently, acd two if his vessel was one of a squadron or
fleet, which is a certain proportion. 5 U, S. Laivs 124.

Meredith for defendant in error. The warrant might be re-
quired between the party and the United States^ but not between
him and his agent. The officers keep their warrants with them
upoi> service, and the agent receives by the roll, and therefore
must pay by it. The commander of the capturing vessel is
bound, on pain of forfeiting all his prize money, to transmit to
the navy department and to the prize agent, complete lists of the
officers and men entitled to a share of the capture, inserting the
quality of every person rating. 5 U.S. Laxvs 110. These are
absolute between the agent and claimant. Then as to the person
certifying: The navy department is a public known office, and
its seal entitled to faith. The accountant is a public known oflfi-
cer, created by law for a particular province of that department.
4 U. S. Laxvs 233. What he certifies in his province, as for in-
stance the rolls in question, is a certificate Irom the proper offi-
cer of the navy department, and is entitled to the seal. It is not
like the case of a private clerk using the seal of office. Certify-
ing that it appears^ is no objection. The roll is well known to
be a list, in which is entered the person's name, sailmaker, from
such a day to such a day; and the certificate has all that. As to
the interest, I concede the witness had none strictly as com-
mander; but in this case he gave a certificate that the plaintiff

(^) 2 Wils. 366. (4) Stra. 76.

OF PENNSYLVANIA. 533

was sailmaker, and if Wilson had recovered as such contrary to i809.
the fact, the witness would have been liable to the officers of"
the same rate, for the loss; he was therefore directly interested

Murray

Z'.

to prevent a recovery. Wilsox.

Reply. The interest, now objected, forms no part of the ex-
ception, ard in fact it has no foundation; for if the witness was
answerable for an incorrect return, he swore against his interest,
as his evidence established the error.

TiLGHMAN C. J. This is a writ of error to the court of com-
mon pleas of Philadelphia county. It is an action brought by
William Wilson, the defendant in error, who was plaintiff below,
against William Miller^ for money had and received for his use.
Wilson was in the navy of the United States, and entitled to a
share of prize money. Alillrr was the agent for prizes; and the
dispute was, whether the plaintiff was entitled to a share in the
capacity of a sailmaker, or of a common seaman. He claimed
as a sailmaker. In the course of the trial, exceptions were taken
to the opinion of the court on two points with respect to the
admission of evidence, which are stated in a bill of exceptions
annexed to the record. The defendant offered to give in evi-
dence the deposition of yohn Slunv, who was captain of the
United States schooner Enterprise, when she captured the
jirize, concerning which the dispute arose. This deposition
was rejected by the court, because Shaxv, as commander of the
said schooner, was interested in the decision of the cause.
There was no proof of any interest except such as arose from
his being commander. I am therefore of opinion that he was a
competent witness; because by the act of congress, regulating
the distribution of prizes, he was entitled to a certain propor-
tion, which could not be affected by the share which the plain-
tiff would draw, cither as a sailmaker or common seaman. It
has indeed l)een suggested, in the course of the argument here,
that he had an interest in preventing the jjlaintiff's recovery,
because he had given a certificate that the plaintiff was sailma-
ker on board the Enterprise, and therefore if the plaintiff re-
covered, Shaiv might be sulyect to an action by the rest of the
crew for having certified what was not true; but it is unneces-
sary to enter into the merits of this objection, because, not ap-

VoL. I. :'. Y

534 CASES IN THE SUPREME COURT

1809. pearing on the record, we can take no notice of it. It is not
~~. stated on the record, that Shaw gave any certificate.

> 1 U R R A V tJ -'

^, I shall give no opinion on the exception to the certificate of

Wilson. Thomas Turner; because I take for granted, that the plaintiff,
when this cause shall be tried again, will take care to be fur-
nished with a certificate from the navy department, free from
all the objections which have been made to this.

On the whole I am of opinion that the judgment of the court
of common pleas be reversed, and a new trial ordered.

Yeates, J. I shall avoid giving a decisive opinion whether
the certificate issued by the accountant of the navy department,
under the seal of that office, was evidence in this case. But I
have no doubt that a true copy of the muster rolls, properly cer-
tified, would have been admissible. The ground, on which 1
think the judgment should be reversed, is, that the deposition
of captain John Shaxv was not permitted to go to the jury. It
was objected that he was interested in the event of the cause,
as commander of the schooner Enterprise^ on board whereof
was the defendant in error, who has instituted this suit for the
recovery of his share of prize money as a sailmaker.

It has been candidly admitted by the counsel of Wihoii^ that
captain Shaxv s prize money could neither be diminished nor in-
creased by whatever might be the result of this action. The
share of the captain is regulated by an act of congress passed
23d April 1800. But it is said that if captain Shaw should be
permitted to substantiate the fact, that the plaintiff below was
not a sailmaker on board, he would thereby render himself re-
sponsible; and consequently is interested. The force of this rea-
soning rests on the fact of his being the officer who made the
returns from which the certificate is extracted. But this does
not appear from the certificate, which only states, that it ap-.
pears by the rolls of the schooner Enterprise, filed in the ac-
countant's office, that William Wilson was sailmaker on board
from the 6th July 1800, to 5th 3Iarch\m\. Now Shaxu might
not have made these returns; and in fact it appears by the de-
position that he had the command of the vessel from October
1799 to October 1800, when the state of his health obliged him
to leave her. The result therefore would be, that of the eight
months, during which Wilson was on board* of the schooner,
Shaxv commanded her only three months.

OF PENNSYLVANIA. 5S5

But even admitting that captain S/unuhad made the returns, 1809.
I do not sec how this would ailect his competency. His depo- 2^i^;j^j^^^^Y
sition was offered bv the defendant below, in order to shew -v.
that he was not a sailmaker, within the true meaning ol the act Wilson.
of congress, entitled in that quality to prize money. He is ad-
duced to swear against his own interest; because if the making
of a false or imperfect return would create a liability, he is
brought to establish a fact which may eventually produce that
effect. A man will be admitted to swear against his own inte-
rest, though not in favour of it. ^

In every point of view, I think captain Shaw was a compe-
tent witness; that his testimony ought to have been rtceivedj
and consequently that the judgment below should be revei^sed,
and a venire facias de novo be awarded.

Brackenridge, J. was holding a court of nisi prius during
the argument, and gave no opinion.

Jtidgment reversed, and
venire de jjovo awarded.

S H E R E R against Hodgson. Saturday

Lessee of Hodgson against S h e r e r . "'^P"^ ^^^'

THESE causes were tried at a circuit court for Chester inJ>"'ors nor
^, , . , . . I— , , . I • , (lr;i\vii hv lo'

j/;/«^ 1808, when the plamtitt m each action obtamed af.j,. the m-c-

verdict. The juries who tried them, were not chosen for the^'"^ ^""""■^•

,.,,.,,,, , liiit drawn

court at whicli the trials took place; hut were summoned to a upon h for-
previous court, when they held a view, and to save the ex-">'' °^*''''

- , . -11 A sion;(ii<l coii

pense ot another view, were continued over by consent. Ai;,|„^^^il over,
full panel of jurors notwithstanding was selected and returned ="'^' ""^ t""^'-
for the other issues ot the y «/;/<• circuit. from tin-

It was agreed by counsel to propose the question of costs io*.''""'^>' '""
this court; and accordingly Frazer for Sherer^ and IJefn/JhilI\(,^,\\\^r \Mri\.
for Nodifson, now submitted the following questions, without ' .''^'•'^l'^"'^''

oi:i view lA
argument. noiclinrfre,

1 . Whether jurors not drawn by lot for the present court, but •''^'•" *" ^^"'■
drawn and struck on a loimer occasion, and continued over, inusi be paiii

arc entitled to be paid bv the eo\int\ ; if not, whether bv any '^> '^'"■.'*'^"''-

' ' ' pnily in tin:

one, and whom. mum-

53G CASES IN THE SUPHl'.Ml. COURT

1 80'J. -• ^^'llethc•l• the expense of a view is to be paid liy the count)',

Sheueu *^^^^-^ ^^^^ parties; and if by the parties, whether by both, or by

,.. the party failing, or the party demanding the view.
Hodgson.

Tii.GHMAN C. J. The juries who tried these causes were
not drawn by lot, and summoned to the court at which they
were tried; but having been drawn and struck sometime I)e-
fore, they were continued over by consent, and at the request
of the parties, for their own convenience; because it saved the
expense of a new view.

Two questions are siabmitted to the court, with respect to
costs. 1. Whether the jurors who thus attended are to be paid
by the count}-; and, if not, then by whom they are to be paid.
2. Whether the expense of the viexv is to be paid by the
county or the parties; and if by the j>arties, whether by both, or
by the one against whom the verdict was given; or by the
party demanding the view.

1. I think there is no pretence for charging the county with
the costs of these juries; because they were not summoned for
the benefit of the suitors in general, but for the particular con-
venience of these parties. The usual number of jurymen, ex-
clusive of these, were summoned for the general business of
the court, and paid by the county.

2. I am of opinion that the expense of the vieru is not to
be paid by the county; because it is unreasonable, and there
is no law which authorizes it. It is to be paid by the parties;
and like other costs, it must fall ultimately on the losing
party.

Yeates J. It appears to me, that only the jurors drawn by
lot, as the law directs, are entitled to be paid for their attend-
ance by the county. Otherwise the consequence would be, that
individuals might Ijurthen the county with costs, which were
never contemplated b\- the legislature. It follows of course that
the attendance of the jurors, not drawn by lot, both on the view
and at the trial, must be paid for by the losing parties respect-
ively, according to the events of the two causes.

Brackf.kridge J. was engaged at a nisi prius during the
argument, and gave no opinion.

OF PENNSYLVANIA. 537

1809.

Shaffer as^amst Kintzer.

" Saturday^

April 1st.

In Error.

THIS was a writ of error to the common pleas of ^er^^ Entire dama-
county. The action below was brought by Kintzer against 1^^^^,^^^^^^.^^^^^^^

Shaffer, for slander; and in the declaration, the slanderous counts in

, , • 1 • r ♦ slander,

words were laid m tour counts. o„c of vvhicl\

The first count charo-ed, that whereas an action, for a de-is bad.

", ,, 11-1 Judsrment

mand not exceeding 100 dollars, was dependmg between a cer- j.p^.gj.sed,

tain Christian Ztrhe and the said /iTi/z^zcr, before Daniel Lud-'^^^^'<'enire de

/. , , » 1 • • r u ?ioi'o award-

101^^ esquire, one of the commonwealth's justices ot the peace, ^jj

which action came to be tried on the 24th December 1805, To say of a

, . P ,, man, '■^ he has

before the said D. Lxidxvig^ then and there having lull power ^,„„;.„y^/^e,"
and authority to try, &c. ; at which trial the same John Kintzer '^^""^ jiction-
then and there, before the same D. Z., was in due manner ooUoquium
sworn upon the holv evangelists, to say and certify the truth,'^f'nff«f a"

' . o ' y J _ extrajudicial

the whole truth, and nothing but the truth, ot the matters in .iffidavit be-
controversy, (he, the said £). Ludxvig then and there having [|J?'^y^ij''*_Ji<^*^
authority to administer such an oath) and all and singular the Nor arc the
things which he knew to be true, concerning the matters i'^^''j'[f.^.Ij[|j^."
controversv, did testify and give in evidence, and the truth, nueiulo of
the whole truth, &c. did depose, according to the oath []'^'^';'|;J^ J^^?
aforesaid; nevertheless, the said Jacob Shajfer., not being ig-.m innuendo
norant of the premises, but maliciously contriving and i"tend-[|^JJ||^'^*j^'^^|^
ing to cause the said Kintzer to be brought in danger of the conneciin}^
pains and penalties of the laws made against those who com-^lJ^"^^^|V^*^
mit perjury, afterwards, in a cert.iin discourse of and con-towliich
ccming the ^?iu\ Kintzer ^ and the testimony so as aforesaid J^^^j-.'^^^.^i^/
sworn, in the presence and hearing 8ic. did falsely publish a meaning-,
f)f the said yo/m Kintzer^ thr- following false, feigned, scan- J"*^^"^","'"^'^^;
dalous, and defamator)- words, to wit, " He" (the said yc/j« contradicto-
Kintzer int^aiiiriR) "has sworn false;" (hereby meaning thatj^^^^'-'^^ ^'^^^^^^
the said John Kintzer had committed perjury.) alter tluii-

The Ad'tc?;/'/ count pursued the first, txcejjt as to the words ^"
spoken, which were laid in the second person, " You have
sworn false."

The third count charged, that wliereas on the 24th Decem-
ber 1805^ the said Kintzer did, on the application of the said
Shaffer, make and declare an oath of him the said KiniZLry dull/
taken and sworn before Daniel Ludwig, esquire, one of the com-

538 CASES IN THE SUPREME CObRT

1 809. monxveultlis justices of the peace., (jhtm and there having
Shaffer (^^'thority to administer such oath) that he the said John Kintzer
V. had not given up and relinquished a certain xvagcr, which he
KiNTZER. /[^^ before that ti?ne made and concluded with a certain Chris-
tian Zerbe, and did then and there swear to the same with
great truth and veracity; nevertheless, the said Shaffer^ mali-
ciously intending to scandalize him, afterwards, &c. in a dis-
course concerning the said oath, falsely and maliciously spoke
and published the following false, scandalous, and defamatory
words, " He," (tlie said John Kintzer meaning) " has sworn
'' false;" (hereby 7neaning that the said John Kintzer had com-
mitted perjury before the said Daniel Ludwig, esquire., in
swearing that he the said John Kintzer had not given up the
iva^er^ which he had., bfore the taking of the said oath., made
ivith the said Christian Zerbe.)

The fourth count differed from the third, as the second did
irom the first.

The jury found a general verdict for the plaintiff, and assess-
ed entire damages. The general errors were assigned; and the
question was, whether the declaration contained any cause of
action.

Evans for the plaintiff in error. The ground of action is,
that the crime of perjury was imputed to Kintzer; and the
question is, whether this appears by the declaration. To con-
stitute perjury, there must be a lawful oath administered by
one that hath authority, in some judicial proceeding. 3 In.st.
164. The objection to the first and second counts is, that the
kind of demand, for which the action was brought, is not stated;
without which it does not appear, that the justice had jurisdic-
tion; and if he had not, all was coram nonjudice., and no perju-
ry could be committed. 3 Inst. 166. Besides, Kintzer was a
party; and an oath could not be lawfully administered to him,
except in particular cases, which should have been set out. The
third and fourth counts are, however, the most faulty; and, as
the damages are entire, if one count is bad, judgment must be
reversed. The words themselves do not import a perjury.
" You have sworn false" may mean a false swearing in con-
versation; it is the same as to call one " a forsworn man,"
which, by all the authorities, is not actionable. 3 Burn. fust.
229. ISth ed. 3 Inst. 166. Gorf v. Moorton (ci)y Stanhope v.

(a) Cro. Eliz. 9Q5.

OF PENNSYLVANIA. 539

Blitli (ci). The case of Holt v. Scholefeld (b) is in point. There 1809.
it was held, that saying of the plaintiff, " Tim Holt has forsworn Shaff^r
" himself, and I have three evidences that will prove it," would v.
not support an action; and the court laid down the true rule, Kintzer.
that either the words must be such as can be understood only
in a criminal sense, or it must be shewn by a colloquium in
the introductory part, that they have that meaning. Then what
is the colloquium here? It is of a voluntary, extrajudicial, affi-
davit, made before a justice of the peace. The magistrate had
no authority to administer the oath, for two reasons: there was
no cause depending; and the person who took the oath was a
party. 2 Haxvk. lib. 1. c. 69. sec. 4. 4 Bl. Com?ti. 136. If the
words were even actionable by themselves, and would be in-
tended to impute a perjury, this colloquium takes away from
them that character. To say of a man, " You are a thief, you
*' stole a plantation," is not actionable, because from the whole
it appears no crime was charged, which is essential according
to the rule in Onsloio v. Home; (c) so here, if to say " you
" have sworn false" is actionable, yet the colloquium cures
it; because it is that you have sworn falsely in an extrajudicial
affidavit, wherein a perjury could not be committed.

Frazer for defendant in error. There are three principles
by which this declaration is to be tried. 1. That the words must
be taken as they were understood by those who heard them.
2. That it is not necessary to allege that the oath was in a cause
depending ; it is sufficient to say it was taken before one
having authority. 3. That after verdict the innuendos are to be
taken as true.

1. The rule of '■^ tnitiori sen.su'^ has long been exploded.
Words are to be taken in the common sense, and according to
common parlance; Bull. N. P, 4. Beovor v. Hides; (d) and af-
ter verdict, the court will not be guessing and inventing a
mode, as it is said in Pcakc v. Oldham {e) in which it is barely
possible for the words to have been spoken without meaning
to charge the plaintiff with being guilty of a crime. The charge
of swearing falsely, in common sense, anil common parlance,

(fl) Micp. 15. a. (rf) 2 WiU. 300.

(Z.) 6 D. & li. C>'J-'. {<■) Cnvp. 277.

540 CASES IN THE SUPREME COURT

1809. is an imputation of perjury. The case oi Hoyle v. Toung, (a)

Shafkeu "^ principle, goes much furthtr. But

%>. 2. As to the third and fourth counts, upon which alone

KiNTZER. there can be any doubt, there is a colloquium which fixes the
charge to be of false swearing before a justice of the peace,
whose authority is averred. That the party himself swore, is
no objection; for in many cases his oath is taken, as to prove
his book of original entries, or to wage his law ; and Co!ome\'
case (/^) was an action for imputing precisely this perjury. The
only question then is, whether perjury may be committed in an
affidavit before a justice of the peace. Now there is no case
whatever to the contrary; and ver}^ often such an affidavit may
be necessary. Indeed the cUse of Gurneth v. Derry (c) is a
clear authority for a power in the justice to administer such
an oath; because it decides that it is slander simply to charge
a man with being forsworn before a justice of the peace.
There the words were, " thou art a forsworn man, and didst
" take a false oath against me before justice Scawen;'''' and
judgment was arrested solely because it did not appear that
Scawen was a justice of the peace; the whole court declaring,
that " though to say that one is forsworn before a justice of
" the peace is actionable," yet there it did not appear that he
was a justice; and it might be the man's name was Justice. To
the same point is Ward v. Clark, (d) In Holt v. Scholefield, it
was not mentioned before whom the oath had been taken, or
that any oath in fact had been taken.

3. The innuendo, however, is that Shaffer intended to impute
perjury; and in this state it was ruled in Rue v. Mitchell^ {e)
that such an innuendo must be taken to be true after verdict.
The words were " you have taken a false oath before squire
" Rusli'^ (meaning that the plaintiff had committed the crime
of perjury in a certain oath, by the said plaintiff then lately
taken before William Rash., esq. one of the justices, &c. in a
cause before the said justice depending); and a motion in ar-
rest of judgment was overruled.

Ingersoll in reply. The very definition of perjury is, that
it must be committed in some judicial proceeding. It is not

(a) 1 Wash. 150. {d) 2 Johnson 10.

(A) Cro. Jac. 204. fe) 2 Ball. 58.

Cc)3 Lev. 166.

OF PENXSYLVANIA. 541

enough that the party may think the oath necessary; it must 1809.
I'elate to some civil or criminal prosecution. We therefore ""!

1 • Ll-l-i-j ^ r ■ OHAFFER

come to a short pomt, whether the third count speaks or a ju- ^,
dicial proceeding. And it clearly does not. Gurneth v. Derry Kintzer.
may be all right, if you suppose the court to speak with refer-
ence to a cause before the justice, and no doubt they do; but
as to Rue v. Mitdiell^ though I hold in great respect the opi-
nions of the judge who decided that cause, yet I must doubt
■whether it be law; it allows an innuendo to alter the whole
meaning of the words, while its proper office is to explain.

TiLGHMAN C, J. This cause comes before us on a writ of
cn-or to Berks county. It is an action of slander brought by
Kint'zer the defendant in error, against Shaffer the plaintiff in
error. The declaration contains four counts. The jury found a
general verdict for the plaintiff, and assessed entire damages;
and judgment was entered on that verdict. The error assigned
is, that the matters set forth in the third and fourth counts,
constitute no legal cause of action; and that is the point for our
decision.

In the M//r/ count it is declared that whereas the plaintifl'did,
on the application of the defendant, make and declare an oath,
of him the said plaintifl", duly taken and sworn before D. Lud-
wi^ esq. one of the commonwealth's justices of the peace &c.,
then and there having autliority to administer said oath, that
the said plaintifl had not given up and relinquished a certain
wager which he had made with a certain Christian Zerbcy
(which said oath was true,) nevertheless the defendant, ma-
liciously intending to injure him &c., in a discourse concern-
ing the said oath &c., spoke the following false, scandalous
and defamatory words: " He" (the said plaintifl" meaning)
" has sworn false," (meaning that the plaintiff had committed
perjury before the said 1). Ludwi^^ t:sq«, in swearing that he
had not given up liie said wager.) The fourth count is the
same as the third, except that the words arc laid to have been
spoken of the plaintifl in the second person, " nou have sworn
false."

The objection to these counts is, that it is not alleged that
any cause was depending before the justice, in the course of
which the oath was administered. On tiic contrarv it would

Vol. I. n Z

542 C:ASES IX THE SUPREME COURT

1809. seem that no cause was depending; but that the plaintiff took
~Z the oath voluntarily at the request of the defendant.

^ In order to constitute perjury, there must be a " lawful oath

KiNTZER. " administered in some judicial proceeding." False swearing,
in a voluntary alHdavit made before a justice of the peace,
beforc whom no cause is depending, is not perjury; nor can
it be punished by indictment, although it is a very immo-
ral and disgraceful action. With regard to words which will
support an action of slander, I take the rule to be as laid down
by C. J. Vc Grey in the case of Onslozv v. Home in the year
1771; which is an authority in this court. They must contain
an express imputation of " some crime liable to punishment,
" some capital oflence, or other infamous crime, or misde-
'^' meanor." This rule is recognised and approved by the court
of king's bench in Holt v. Scholejield^ (l^Qe) in which it was
held that it was not actionable to say that a man had " forsworn
*' himself," (meaning that he had commited perjury). But it
has been urged, by the counsel for the defendant in error, that
the defect in the words is cured by the innuendo of perjury,
which the jury have found to be true. It is the office of an
innuendo to elucidate the words, by connecting them with the
subject to which they refer, and averring a meaning not incon-
sistent with, or contradictory to, them; but it cannot alter the
nature of the words. If A say of B that he cut down and car-
ried away one of his trees, innuendo that B committed felony,
this will not make the words actionable; because they do not in
their nature import a felony. The case oi Rue v. Mitchell^
2 Dall. 58. was cited and relied on by the counsel for the de-
fendant in error. In that case the words were " you have taken
" a false oath before squire A^zas//," (meaning that the plaintiff
had committed perjury in an oath taken by him before William
Rush^ one of the justices Sic, in a cause before him depending).
The court were of opinion that the action might be supported,
and laid considerable stress on the innuendo^ which the jury had
found to be true. There is this remarkable difference betweea
that case and the one before us, that there tht innuendo expressly
asserted that the oath was taken in a cause depending before the
justice; but in this case the innuendo contains no such averxnent.
Besides, the third and fourth counts ofthe declaration, in the pre-
sent case, describe the proceeding before the justice, in such a
manner as to make it appear, that no cause was depending; and

OF PENNSYLVANIA. 543

if the innuendo contradict it, it is of no avail. I think the case 1809.
oiRuex. Mitchell extended the efficacy of an innuendo far ,.^^,„„

111 J T "^HAFrER

enough; rather farther than any former case had done; and 1 ^,
am not for going beyond it. U innuendos can alter the meaning Kintzer
of words, they may be employed to very mischievous purpo-
ses. A man may be made responsible not for what he said, but
for what other persons may suppose he intended to say.

I am of opinion, on the whole, that the judgment in this
case must be reversed, because the words charged in the third
and fourth counts are not actionable.

Yeat^s J. concurred.

Brackenridge J. In the case of Rue v. Mitchell^ 2 Dall. 58.
" it appeared, on the trial of the cause, that the oath in question
*■* was voluntarily taken by the plaintiff in order to satisfy the
" defendant upon a controverted fact involved in the suit."
The voluntariness, spoken of here, is not of a nature with that
which is properly called a voluntary oath; for there was a suit
depending before the justice, and of which he had jurisdiction.

The jurisdiction of the justice in civil matters not being of\.
common law origin, but taken from the civil law, where the
judge determines the fact as well as the law, it has not been
the understanding, under the acts establishing his jurisdiction,
that he is bound by every rule of common law evidence; but
that he may exercise, and it has been the usage to exercise, a
chancery power, in purging tlie conscience, by admitting an
oath on the part of the plaintiff in support of his demand, or an
answer upon oath on the part of the defendant. And even in the
courts of justice, and before a jury, if a party plaintiff or de-
fendant waives the strict rule in regard to testimony, and offers
to leave a matter to the oath of his adversary, I do not know
that the court could reject it; the party called upon being willing
to make the oath. For it is a renunciation by the party of a right
which the law has introduced for his sake. Yet such could not
be called a voluntary oath; for tliough the court or justice, be-
fore whom it is taken, could not impose it, yet it is imposed
hy the allegation which the oath is admitted to repel. Such was
the occasion of the oath in the case of Rue v. Mitchell; and it
was legally administered. Perjury was both in)))utable and pu-
nishable in such a case. Law wager still exists in our law; and

544 CASES IN THE SUPREiME COURT

1809. under certain forms of action, the defendant, at this day In

T~ courts of iustice, Avould have his privilege to repel on his own

Shaffer J , , , . r ■

,,. oath and that of others, the allegation of the plaintiff. These

KiNTZER. oaths, though in a certain sense voluntary, would not be extra-
judicial.

An oath administered by a justice wlicre he has no jurisdic-
tion, cannot be distinguished from an oath administered by one
not a justice; for the proceeding of any tribunal, of a civil na-
ture, must be founded on the plaint of a party; and where the
tribunal proceeds without plaint, or entertains a plaint over
which it has no cognisance, there is, in contemplation of law,
no proceeding before it; and an oath taken in such a case is ex-
trajudicial. A justice has no jurisdiction even on plaint made,
where the jurisdiction is not given by positive statute, or where
it is excluded by those principles wiiich exclude the jurisdiction
of every judicial forum; as where cognisance of the plaint is
against public policy, or general convenience. Where a matter
actually exists in dispute, and, superseding all necessity of
process, it is agreed to be referred to the oath of a party on a
certain particular, the oath will not be extrajudicial, provided
the matter in dispute be of such a nature as is within the cog-
nisance of the justice; for it is an agreement of the parties to
terminate the controversy in this way. I will not say, that, even
if the justice had not cognisance of the matter on the ground
of cause of action, from the subject of the controversy, or from
the quantum of the demand, an oath on such an agreement
might not be administered to the parties, or to a witness offered
by them, and agreed upon to be admitted; and that in that case
it might not be judicial. But no agreement would warrant the
administering an oath in a matter, the taking cognisance of
which would be contrary to good policy: as in the case of a
wager respecting an election, or the defect or infirmity of a third
person. No prosecution would lie on an allegation of perjury in
such a case; nor would an action of slander lie for an imputation
of perjury in such a case. The law throws it entirely out of its
protection, and can take no notice of it unless as a misdemea-
nor in the officer who administers. The law takes no notice,
says Blackstone in his Commentaries, of any perjury but such as
is committed in some court of justice having power to admi-
nister an oath; or before some magistrate, or proper officer in-
vested with a similar authority, in some proceedings relative to

OF PENNSYLVANIA. 545

a civil suit, or a criminal prosecution. For it esteems all other 1809.
oaths unnecessar>- at least, and therefore will not punish the "^^ffer"
breach of them. For which reason it is much to be questioned 7..
how far any magistrate is justifiable in taking a voluntary affida- Kintzer.
vit in any extrajudicial matter, as is now too frequent upon
everv petty occasion; since it is more than possible that by such
idle oaths a man may frequently, in for conscientite, incur the
guilt, and at the same time evade the temporal penalties, of
perjurv. 4 -fi/. Comm. 137. And Coie in his Institutes lays it
down as has been quoted, that where the court has no authority
to hold plea of the cause, it is coram non judice. 3 Inst, 166,
cites Bract, lib. ^.fo. 180.

To applv these principles to the case before the court. The
words laid to be spoken are '■'•that he sxvore falsely.'''' These
words do not, of themselves, necessarily import a charge of
perjur\-, or any indictable offence. " Perjury is a crime com-
*' mitted, when a lawful oath is ministered by any that hath
"authority, to anv person in anyjudicial proceeding, who swear-
" eth absolutely and falsely in a matter material to the issue, or
" cause in question, by their own act, or by the subornation
"of others." 3 Inst. 164. " If a man calleth another a per-
" jured man, he may have his action upon the case, because it
"must be intended contrarj- to his oath in a judicial proceed-
" ing; but for calling him a forsworn man, no action doth lie,
"because the forswearing may be extrajudicial." 3 Inst. 166.
And to say generally that a man hath forsworn himself, is not
actionable; because he may be forsworn in common conversa-
tion, or it may be an expression of mere passion and anger, 4
Co. 15. b; nor shall it be intended to be referred to a case where
perjury may be committed.

It may be said, that after a verdict, it shall be taken to have
been in evidence, that the oath, which was spoken of bv the de-
fendant, and said to liave been sworn falsely, had been taken
in the course of a judicial proceeding, and legally administered;
but the introductory averment, as well as the roUof/uimn^ shews
that the supposed defamatory words were ap])lied to a mere
voluntarv oath, extrajudicially and illegalh- taken. So that il
appears to me, the errors assigned in this caus« arc supportccl.
and warrant a reversal of the judgment.

Judgment reversed.

546 CASES IN THE SUPREME COURT

1809. Frazcr then moved the court to award a venire de tiovo., two

'Shaffer~°^ the counts being clearly good; and he cited the case of

Grant v. Astell^ Doitg: 731, where Buller J. lays down the doc-
KiNTZER. trine, which is adopted by the court, that where entire dama-
ges have been assessed upon several counts, some good, and
others bad, and judgment for that reason is reversed, a court of
error may award a venire dc novo.

TiLGHMAN C. J. I believe there is a late case in which a
venire de novo was refused in slander; but I see no reason for
the distinction. The case in Doug-las is good law and good
sense; and I am willing to abide by it.

Per Curiam,

Venire de novo awarded.

4^ «<e/

^^'157

fully bcpot
ten; and in
case of his
death with-
out such is-
sue, he or-
ders C. his
executors

Saturday , LcSSCC of S M I T H aga'mSt F L W E L L .

April 1st.

^.devises all XT JECTMENT for a messuage and lot in the city of Pliilu-

his real es- -l-^ delphia^ in which the following case was stated, to be con-
tate to his . , , . , ,.

son B. and sidered as a special verdict.

]iis heirs law- " John Bleakley the elder, being seised in fee of the premises

in the declaration mentioned, on the 8th day oi August 1768,

duly made and executed his last will in writing of that date,

and thereby devised as follows: " As for and concerning my

" worldy estate, I give, devise, and bequeath, the same in

" manner following, &c. I give and bequeath to my brother

and adminis-u £)avid Bleakleii, living in the north of Ireland^ the sum of 10/.

tralors tosell ^' o 7

the real es- " Sterling. Also, I give and bequeath to my brother William

late within « Bleakley^ living near Dungannon^ the sum of 10/. sterling,
ter the son's " Also I give and bequeath to my sister Margaret Harkness^

death; and u ^f Dun^amion^ the sum of 100/. sterling. Also I give and

hebcfjueaths . 00

the proceeds " bequeath to my sister Sarah Boyle^ wife of the rev. Mr. Boyle^

bJotherl^a'li'd " ^^^ ^""^ °^ ^^^' s^^'''^'"?- ^^so, I give to my cousin Archibald
sisters by " Toiing^ of Philadelphia^ an annuity of 30/. Pennsylvania mo-

^^hdr heirs " "^7' '° ^^ P^^*^ ^^"^ ^^^ °^ ^^^ rents and profits of my real

forever, or

such of them as shall be living at the death of the son, to be divided between Uiem in er/ual
proportions, share and share alike All (he brothfis ;ind sisters die, leaving issue. Then C.
dies, and afterwards £ , the son, without issue. Heirs is a word of linnitation; and none of
the brrjtlierf and sisters beini? alive at ihe deatli of .5., the object of the power to sell,
has failed; their issue are not entitled; and a sale by the executors of C. conveys no title.
A power to C. and his executors to sell, may be executed by the executors of C* exe-
cutor, if the object of sale continues.

V.
FOLWELX.

OF PENNSYLVANIA. 547

*■' estate, on the 25th clay of March in every year, during the 1809.
"joint lives of him the said Archibald Young, arid my son x „
" John Bleakley or his heirs kavfully begotten; but in case of of
" the decease of my said son xvithout issue lawfidly begotten as Smith
" aforesaid^ in the lifetime of the *«i^ Archibald Young, then the
" said annuity is to cease^ and in lieu thereof I give and bequeath
" unto the said Archibald Young and his assigns the sum of
" 400/. ster/ingy payable out of the proceeds of mij real estate^
" when the same is sold and disposed of according to the inten-
" tion of this my will hereinafter mentioned, a)id before any
" dividend is made of the proceeds of my said estate; and this
" legacy or bequest is made to my said cousin A. T. not only
" for the natural affection I have and bear to him as a relation,
" but al-^o as afidl compensatio7i for the services he has already
" rendered me, and in lieu of his commission for the trouble
" he may hereafter have in the execution of this my will. All
" the rest and residue of my estate real and personal, &c. I
" give, devise, and bequeath to my son John Bleakley and his
" heirs lawfully begotten; and iji case of the decease of my said
" son without such, issue^ then I do direct and order my said
" cousin Arthil)ald Young, his executors or administrators^ to
'' sell and dispose of my real estate 7vithin two years after
** the decease of my said son John Bleakley, to the best advan-
" tage; and I do hereby give and bequeath the proceeds thereof
" to my said brothers David Bleakley and William Bleakley,
" and my said sisters Margaret Harkness and Sarah Boyle,
*' and their heirs forever^ or such of them as shall be living at
" the decease of my said son^ to be divided betrveen them in equal
proportions^ share and share alike^ after deducting out of
such proceeds the sum of 400/. sttrling, herein before given
and bequt-athed to the said A. T. immc diatdy on the decease
" of my said son without issue, in lieu of the annuity above
" mentioned; and in case my said son should die before he at-
" tains the age of 21 years without issue lawfully begotten as
'' aforesaid, then my will and mind is, that the remainder of
" my per3(<aal estate hereby intended for my said son at his
" own disposal, if he should live to attain the age of 21 years,
" shall go and be divided amongst my said brothers and sisters
" 7vith the proceeds of my real estate^ as is herein before direct-
" ed to be divided.'''' 'I'he testator then appointed Archibald
Toung his executor, and in the same year died seised."

548 CASKS IN THE SUPUKIME COURT

1808. " John Blcakkif the younger, the devisee named hi the said

Lessee" ^^^'^' altenvards, to wit, in the same year, entered into posses-

of sion of the premises therein mentioned, of which the premises

Smith named in the declaration are part, and held and enjoyed the

FoLWELL ^^"^^' ""^'^ ^^^^ ""^ ^'^^^ o{ September, 1802, when he died of full
age and without issue, after having duly made his last will in
writing, bearing date the 19th of April, 1802, and ilKrchy ap-
pointed Joseph Parker Norris his executor." (By tliis will the
testator directed his real and personal estate to be sold, and the
proceeds, after paying legacies, to be divided among certain
of his relations share and share alike.)

" On the 25th day of May, 1803, the said Joseph Parker
Norris, executor as aforesaid, in consideration of 7000 dolls,
lawful money of the United States, to him paid by William Fol-
ivell, the defendant in this action, bargained and sold the said
premises to the said William Fohvell and his heirs."

" The following legatees, named in the will of the said John
Eleakley the elder, and who were next of kin to him, as well
as to John Eleakley the younger, died at the following periods,
that is to say, Sarah Boyle between the years 1760 and 1770,
leaving issue who are still alive; William Eleakley in the year
1775, leaving issue who are still alive; David Eleakley in the
^ year 1790, leaving issue who are still alive; and Margaret

Harkness in the year 1794, leaving issue who are still alive."

" The said Archibald Toung, executor of the will of the said
Jolvi Eleakley the elder, on the 3d of May 1 782, duly made and
executed his last will in writing; and thereof appointed Robert
Correy his executor, and died on the 27th of May in the same
year, without having disposed of the premises in the declara-
tion mentioned."

" On the 24th of April, 1797, the said Robert Correy duly
made and executed his last will in writing, and thereof ap-
pointed Eleanor Correy and James Eoyde executors, and after-
wards died, to wit, on the 1st day of June 1802, without having
disposed of the premises in the declaration mentioned."

" On the 1st day of February, 1805, the said Eleanor Cor-
rey and James Eoyde, executors as aforesaid, for a valuable
consideration in lawful money to them paid by James Smith,
the lessor of the plaintiff, bargained and sold to him and his
heirs the premises in the declaration mentioned. The said
James Smith, at the time of the said purchase, had notice of

OF PENNSYLVANIA. 549

the deaths of the said D. Bleakley^ W. Bleaklei/, S. Boijle, 1809.
and M. Harkncss; and that they died before the decease o^ "Lessee"
the said John Blen/dcy the younger. He also had notice, at of
the time of his said purchase, of the said deed by Joseph P. Smith
Norris to W. Fohuell.'*'' p ^''

" If on these facts the law be with the plaintiff, then judg-
ment to be entered for him, with 6 cents damages, and 6 cents
costs; hut if the law be with the defendant, judgment to be en-
tered for him."

The case was argued at last December term before the
whole court.

Dallas for the plaintiff. The personal representatives of the
brothers and sisters of Bleakley the father, are entitled to the
proceeds of the real estate; and not the devisees of Bleakleij
the son. ^y the father's will, the son has a clear estate tail in
the realty; the reversion in fee descends to him, subject to
a power in Toung and his executors to sell, upon his dying
without issue living at tiie time of his death; and by this sale,
the fee is transferred to the vendee. Lancaster v. Thornton (a)
and Warneford V. Thompson (Jb). There are but two questions.

1. Whether the facts establish the existence of a power to sell.

2. Whether there is any object for the exercise of the power.
1. The existence of the power depends upon two circum-
stances: the son's dying witliout issue living at the time of his
death, and the continuance of the authority up to the time of
aale. That the life of Archibald Toung is not essential to the
raising of the power, is evident for various reasons: he is a
jnere instrument; his death is provided for by the substitution
of his representatives; the clause which commutes the annuity
for 400/., makes it depend upon his being alive at the death of
the son without issue, but the clause which directs the sale,
makes it depend sokly upon the death of the son without issue;
the brothers and sisters are the second object of the testator's
bounty, and to make a power for their benefit hang upon the life
of an indifferent person, is absurd. Then as to the continuimcc
of the authority: The direction is to Toung^ his executors and
administrators; and the executors of the executor may perform
it. Shop. Touch. 404. 8 Vincr, 4G5. pi. 3. 467. pi. 16. 2
Brownl. 19-1. Kcihcay 4^. Co. Litt. 113. a. note 146. Tenant

U) 2 Bu>y. lO.V. ib) i Fcf.jr. 51'..
Vol. I. A- A

550 CASES IN THE SUPREME COURT

1809. ^"' Broivu {a). There can be no objection from the remoteness
j^pgsgg of the power. The sale must be made within two years after
of the son's decease; and the division is to be between such as
Smith ^^^ living at. the decease; tht-refore the power is to arise upon
FoLWFLL ^'^^ death of the son without issue living at the time of his death.
2. With respect to the objects of the power, the material in-
quiry is the testator's intention. The land which is ordered to
be sold is to be considered as money, 1 Fonbl. 414; and it is to
be divided between the brothers and sisters, or such of them
as were living at the son's death, and their heirs. Heirs is
not of necessity a word of limitation. Bamjieldw. Popham (h).
It is often used as a designation of the person. Biirchellv. Dur-
dant (c). The intent of the testator being the principal rule for
the exposition of the will, he is excused from using the strict
and proper terms of law; it is enough, if he has suificiently de-
clared his intent. Heirs is not necessarily a word of limitation
here, because the property being money, an absolute estate
passes without it: a principle of which the testator was aware,
when in a certain event he devised his personalty to his bro-
thers and sisters, without more. It must be used therefore
to bring in the issue, who are generally called heirs, and not to
qualify the estate. 7'he testator could never have intended to
make the sale and distribution of his estate depend upon his
old brothers and sisters surviving his young son; the event was
too improbable. But it is reasonable to attribute to him an
affection for the stock, which, upon the failure of his own,
he wished to advance; and an intention, that the heirs of
such as should be dead, that is their issue, should take per
stirpes. Construing the term as a limitation, his object as to
the heirs is defeated; treating it as a word of purchase, and a
designation of the legal representatives, the whole will is
supported; and this result is a sufficient justification for laying
aside the technical meaning. Darbiso7i v. Beaumont (d). The
death of the brothers and sisters before the son, is therefore
immaterial, as their issue were living at the son's death, to
come in under the description of heirs. But granting that they
must take in the quality of heirs, we contend that they can
take. The brothers and sisters were either to take by way of
executory devise, or they had a contingency coupled with an

(fl) 1 Chan. Ca. 180. (c) 2 Ventr 311

(b) 1 P. Wms 59. id) 1 P. IVms. 230-

OF PENNSYLVANIA. 551

interest, which was both devisable and descendible. As an ex- 1809.
ccutory devise, Porter v. Brndleij (a) is in point, that although L^ggg
they died before the contingency, their children take; so is of

Gurnell v. Wood (Ji). As a contingency coupled with an inte- Smith
rest, the right of their representatives is clearly supported by ^'
King V. Withers (c). There a devise was of 2500/. to a daugh-
ter, at 21 or marriage; and if a son should die without issue
male living at his death, she was to have 3500/. more at 21 or
marriage; and if the son's death did not happen betore 21 or
marriage, she was to have the money whenever it did happen.
She died before the son, who afterwards died without issue
male; and her administrator took. The principle, that these pos-
sibilities coupled with an interest, descend, and may be devis-
ed, has been settled law h'lncit Sclwyn v. Selwyn (d). So are
Goring- v. Bieker^toffe^ {e) Knight v. Knight^ (/) Roe v. JoJies^
(g) and Perry v. Phillipa (h). All that is necessary is that there
should be somebody ready to take when the contingency occurs.

Rarvle^ for defendant, made three points. 1. That the will con-
tained a clear devise of all the realty to the son in tail. 2. That a
power was limited to arise on a contingency, depending upon the
events, firsts of John Bleakley the son's dying without issue
living at the time of his death; and secondly^ of the brothers and
sisters, or some of them, surviving the son so dying; which last
event not happening, the power never arose. 3. That the fee
which descended to the son, was unulFtcted by the power, and
passed by his will to his executor, who sold to the defendant.
The first point, he said, was incontrovertible; and the third
was settled by the second; of course he confined himself to the
second point, upon which he argued as follows. The son must
die without issue living at the time of his death, Ijefore the es-
tate goes over; and when it does go, it goes to the brothers and
sisters and their heirs, or such of them as are living at the son's
death, 'ihe first question is as to the meaning of the word heirs.
The general rule, that it is a word of limitation, is not to be
questioned. There is even an anxiety in courts that the heirs
shall take by descent, and not by purchase, as appears from

C«; .i it c' A. 143. U) 2 Burr. 1131. (/,') 2 //. lit. 30.

(/') WilUi, 211. ((") Pollexf. 32. (/i) 1 Vet. jr. 251.

552 CASES IN THE SUPREME COURT

1809. Shelly'^s caye (fl), Coulson v. Cotilson (i), and Hodgson v. Am-

1 ggj. /^ro5e (c). In i^re^/ v. R'lgden (^d) rather than construe heirs to

of be words of purchase, the devise was suffered to lapse. If a

Smith testator uses technical words only, courts are bound to under-

^ ^ ■ stand them in a lecral sense; if he connects them with words
FOLWELL. ^^ ..... ., „

which shew a diiterent meanmg, his intention prevails. But

there are no such words here. What, however, are the conse-
quences of considering the term as a description of the person,
and allowing the heirs to take by purchase? Manifestly, that they
cannot take per stirpes^ which is argued to have been the testa-
tor's design. Purchasers must take/»£'rca/?/?«; and then if one bro-
ther be dead leaving nine children, they will take three fourths
of the whole estate, and the surviving brothers and sisters one
twelfth each. Was this the intent of the testator? Clearly not;
the division is to be share and share alike. There is no alter-
native then but to consider heirs, not as a description of the per-
son, but as a word of limitation. And this is confirmed by the
contingent devise of the personal property, which is to be divi-
ded among the brothers and sisters^ rvith the proceeds of the
real estate^ as before directed; and to which the issue could not
make a pretension upon the death of the ancestor before the
contingency. It is confirmed also by this, that if it is a word of
purchase, it does not qualify the estate of the brothers and sis-
ters; and then the testator must have intended them merely a
life estate, which is impossible. Being a word of limitation, if
the ancestor took nothing, nothing comes to the heir, Moor-
house V. Wainhonse: (e) and the only remaining question is,
whether the ancestor did take any thing. In this case every
thing is contingent: the person to take, the time, and the quan-
tity. A division is ordered among such as shall be living at
the death of the son; that is, such of the brothers and sisters.
Every thing depends upon that contingency; it is therefore a
bare possibility that any one of them shall take. There is no in-
terest coupled with it, to devise or transmit; for every thing d«-
pends upon the party's being himself mes^c. This distinguishes
it from all the cases read. In Porter v. Bradley^ there was no
contingency that the persons who were to take should be alive
at the death of the first devisee without issue. There was a ge-
neral limitation over to the daughters and their issue, upon the

(a) 1 Rep. 98. 104. (c) Doug. 341. ie) 1 W. Bl. 638.

( b) Stra. 1125. {d ) PUvid. 345.

OF PENNSYLVANIA. 555

death of the son without issue living at his death; and no col- 1809.
lateral event was required to exist at the same time. So was j^^^^^^
GurJiell V. Wood^ Khig v. Withers^ and the rest. of

If the proceeds are personalty, the legacy is lapsed; for in a Smith
devise of personal property, heirs, and heirs of the body, are ^•
rejected; the legatee takes absolutely, and his executor, not his
heir. Leonard Lovie's case (a), Robinson v. Fitzherbert (^),
Webb V. Webb (c). If the devise had been to the brothers and
sisters and their executors, or such of them as should be living,
&c. where would have been the doubt?

There being no person entitled to receive the proceeds, no
sale can be made against the interest of the heir at law, for
whom equity will restrain the trustee, Bradley v. Poxvell (</),
Yates V. Phettiplace (e), Tournayv. Tournay (/), Roper v.
Raddiffe (g), Croft v. Lee {h). The object ceasing, the power
ceases; and the purchaser from the trustee with notice, like the
lessor of the plaintiff, becomes himself trustee for the cestui que
trust, or in this case, for the devisees and vendees under the
son's will. Saunders v. Dehexv (i ), Mansell v. ManseU{k).

Tilghman on the same side. The heir is the favourite of the
law of England, and not to be disinherited but by express
words, or necessary implication. He should be still a greater
favourite here, where all the children make but one heir, and in
this case, where the son was totus hares. It is agreed he took
an estate tail by devise, and the fee by descent; he must there-
fore have a right to dispose of the fee by will, unless prevented
by the plain and legal intent of the father. It is said he is pre-
vented by a sale under a power in the father's will; and the
only questions are, 1. Whether such a power ever existed. 2.
Whether there ever existed any objects for the exercise of it.

1. If the power is to arise after an indefinite failure ot the
son's issue, it is too remote. If no time is fixed, it is bad, for
uncertainty. If any time is fixed, I submit, that it is the death
of Bleakley the son without issue, living Archibald Toung.
Toung was to have the annuity of 30/. as long as he and the

(rt) 10 Jii-p. 87. (e) 2 Vern. 416. (/) 2 Veni. 271.

(b) 2 Bro. C. C. 127. (/) Prec. Chan. 290. {i) 2 P. fVms. 681

V.
FOLAVELL

554 CASES IN THE SUPREME COURT

1809. *°"» °'' ^^ '^"^ *^^ son's issue lived; but if the son died without

' issue in the lifetime of 7'oune. he was to have 400/. out of the

L#essee ^

of proceeds of the real estate, and before any dividend was made.

Smith This shews that the real estate was to be sold only in a case in
which Toimg was to have 400/. Further; by the first part of
the will, the gross sum is to be paid upon the son's dying with-
out issue in the life of ToKng; and by the latter part, the sale is
directed upon the death of the son without ftuch issue^ that is,
in the life of 2'oimg. I agree that his executors and adminis-
trators were to sell, provided the power arose by his surviving
the son, and dying bfforc the two years; and hence their in-
troduction. The testator might have supposed that the son
would come of age in Toimg's life, and that if he outlived
Toung^ he would do what was right himself; therefore the life
of Toung^ however immaterial per se^ was not so in connexion
with the son's life, but was likely to be a proper circumstance
by which to limit the raising of the power. The disposition of
the personalty shews that the testator considered Toung as sur-
viving. The son was to have it on attaining 21; but it was to
be divided with the real estate, if the son died before 21 with-
out issue lawfully begotten as ajoreaaid^ that is, living Toung.
No one can have the proceeds until Toung'' s 400/. are paid; it
is a compensation for his trouble in selling and remitting; there
can be no sale without it. Was it the testator's intention to
prevent the son from alienating during his whole life after
Toung''s death? It cannot be. But it might be proper to re-
strain him during the probable period of Toung''s life; and
therefore that life is essential to the power.

2. If the power arose, was there any object in whose favour
it could be legally or equitably executed? It is agreed that the
whole was contingent. Whoever was to take was to be alive
at the son's death. We say brothers and sisters; they say, and
the children of such as were dead. As to their being purcha-
sers and taking per stirpes^ Mr. Rawle^s argument is conclu-
sive; and yet it is clear they cannot take in any other way; there-
fore they cannot take at all. Such of them cannot mean of the
heirs, but of the brothers and sisters; otherwise, there is a
double contingency, which is bad. The event is clearly doubt-
ful. If heirs are meant, the persons are doubtful also; and then
there is one contingency upon another. 1 Fearne 378. Heirs

eF PENNSYLVANIA. 555

cannot take by purchase unless there is descriptio personcr; this 1809.
rule is unquestionable. Now suppose the brothers and sisters ;: "

had died in the life of the testator; it cannot be argued that Qf
their children would take; but there is no reason against it, Smith
except that they would derive nothing from their ancestors; '^'•
and this is conclusive to shew there is no descriptio personae, °

As to the power of the executor to sell, the general princi-
ple is plain. But at law, th^ executor derives merely from his
testator. Young never had authority to sell, as he died before
the son; and therefore his executor derived at law no power
from him. Then, though equity might order an execution of
the power by Toung's executor, or even by the heir, it will
never do it, where nobody is entitled to the proceeds, and
there is a bona fide purchaser from the heir. The sale under
Tciung's will is therefore bad both in law and equity.

Lewis in reply. \i Bleakley the son did not die in the life of
7'oung, there was no reason for Toung^s having the 400/.; and
therefore when his compensation is spoken of, the testator
gives it only in case of his son's death without issue " in the
" lifetime of the said Archibald Toung;^^ but when the devise
is made to the brothers and sisters, Toung^s life is not requi-
red, but the duty is to l)e performed by him or his representa-
tives. Neither is any thing said of his survivorship in the de-
vise of the personalty. His life therefore is not essential to the
power. Ifitis, two consequences follow, which are quite impro-
bable: first, that the testator intended to benefit his brothers only
in the event of a stranger's death; and secondly, that if Toting
died before the son, and the son died afterwards under age and
without issue, nothing was intended to pass under the will, but
the heir at law was to take the whole. I contend that the death
of the son without issue, is all that is necessary to raise the
power; and that the land is to be sold absolutely upon that event,
withfjut regard to any other. Whoever mav own the proceeds,
the lessor of the plaintiff owns the land. The sale is to be made
within two years after the son's death without issue. Of course
the failure of issue is referible to that time. Under what cir
cumstances is it to be made? As to Toung^ his life was immate-
rial; he was a mere instrument. It is said his executors are
substituted, because he might survive the son, and die before

556 CASES IN THE SUPREME COURT

1809. the sale. But in such an event the substitution would be use-
Lessee '«^ss; equity would make it for the testator, the power having
of arisen. The only design of the substitution was to provide for
Smith ^Yi^ power in the event that has happened: a dying before the
FoLwELL. ^^^' ^^ *° ^'^^ brothers and sisters, the direction to sell is dis-
tinct from the division between them and their heirs: the one is
peremptory, the other is conditional. It does not follow because
the property is sold, that the proceeds must go to them. The
testator did a discreet thing in merely changing the propertv,
and permitting the law to distribute. Had he stopt at the order
to sell, there could have been no doubt; and in effect he has
stopt there; for he does not couple the order with the distri-
bution, by saying that for the purpose of dividing he directs
the sale, or to the intent, or in order to, divide; but there are
two distinct and independent orders, one to sell, and the other
to divide. But supposing objects of sale to be necessary, we
say they exist. One question on this part of the case is, whether
the children take by descent or purchase. I agree the ge-
neral rule; but heirs certainly may be a word of purchase, if it
5s so intended. The brothers and sisters were advanced in life
when old Bleakley made his will; the son was young; and
therefore there was a probability of their death before his; in
which event it was his desire that their children should take,
and hence the word heirs. The effect of the term is to be limited
according to his intent; he did not know the legal meaning of
descent or purchase; his design was that the children should
stand in loco parentis throughout. I see the difficulty of their
taking by purchase, where one brother is dead leaving chil-
dren; but it is obviated by assigning to him the intention,
not that they should take technically either by descent or
purchase, but that they should stand exactly as their parent
would have stood. But if this will not hold, then the authori-
ties of Mr. Dallas do shew that a contingent executory inter-
est commenced in the brothers and sisters, which was trans-
mitted to the children, and became consummate in them upon
the son's death without issue. It is exactly the case of Pin-
bury x.Elkin: {a) where one made his wife executrix, and gave
her all his goods and chattels, provided she died without issue

1 P. Wmi. 5CX

OF PENNSYLVANIA. ' 557

by the testator, in which event after her decease, 80/. was to 1809.

remain to A.; A. died before the testator's wife, and his repre- T '

.... Lessee

sentatives took. So a devise to A. and his heirs, and if he dies of

before 21, to B. and his heirs. A. dies before 21, and B. dies Smith

before him; B.'s heirs take. 8 Fine?- 112. p/. 38. 377. pL 11.

2 rentr. 347.

Cur. adv. viilt.

Upon this day the judges delivered their opinions.

TiLGHMAN C. J. The question in this case arises on the
will oi John Bleaklcij the elder, and is to be resolved by ascer-
taining what the contingency was, on which the testator autho-
rized his executor to sell his real estate, and divide the proceeds
among his brothers and sisters. If that contingency has taken
effect, the plaintiff will be entitled to recover, because there is
no doubt, that the power to sell is extended to the executors of
the original executor; nor is it in its nature more remote than
the law permits, being to take effect on the expiration of a life
then in existence. But if the contingency has not taken effect,
the plaintiff has no title.

The objects of the testator's bounty appear to have been his
son, his brothers and sisters, and his cousin Archibald Toutig^
whom he made his executor. In the first part of his will he
gives a small legacy to each of his brothers and sisters; and to
Archibald Young an annuity of thirty pounds, Pennsyhania
currency, to be paid out of the profits of his real estate " during
" \\\c joint lives of the said Archibald To ung^ and his son John
" Blcakkif^ or his heirs larvjulhj begotten; but in case of the de-
'' cease of his said son without issue lawfullv begotten as aforc-
" satd^ in tiie lifetime of the said Archibald Toung, then the
'^' annuity was to cease, and in lieu of it, Archibald Toung was
" to have 4CXJ/. sterling, payable out of the proceeds of the tes-
" tator's real estate, when die same was sold and disposed of as
" was afterwards in the said will directed." If we pause here,
we find the testator's intention very clearly expressed, that his
real estate was to be sold, in case his son died without issue
during the life of Archibald Toting; or in case he left issue, and
that issue should die without issue during the life of Archibald
Toung. I am liy no means satisfied that this inti-ntion was not
preserved throughout the v.ill, although in a subsequent part.
Vol. I. 4B

X'.
fOLWELL

558 CASES IN THE SUPREME COURT

1809. ^vhich I will next consider, there are expressions not strictly
Z ; reconcilable with it; and which aflford strong ground for arguing
of that the testator designed that his real estate should be sold, in
Smith case his son should die without leaving issue livDig^ at the time
of his death, without regard to the life o{ Archibald 7'oung. His
words are as follow. " All the rest and residue of my estate,
" real and personal, I give, devise, and bequeath to my son
" ychn Bleakley, and his heirs lawfully begotten; and in case of
*' the decease of my said son without such issue, then I do
" direct and order my said cousin, Archibald 7'oung, his execii-
" tors or administrators, to sell and dispose of my real estate,
*' within two years after the decease of my said son, to the best
*' advantage. And I do hereby give and bequeath the proceeds
*' thereof to m)'' said brothers, David and IVilliam Bleaklcy, and
" my said sisters, Margaret Harkness and Sarah Boyle, and
*' their heirs for ever, or such of them as shall be living at the
" decease of my said son, to be divided between them in equal pro-
*■'■ portions, share and share alike, after deducting the sum of
*' 400/. sterling, herein before given to the said Archibald
" Toung, immediately on the decease of my said son without
" issue, in lieu of the annuity above mentioned." Here is, to
be sure, an express power to sell, given to the executors of Ar-
chibald Toung; but that power might be necessary at all events,
because Archibald Toung might survive the testator's son, and
die within the two years, during which the sale was to be made,
without having completed the sale. But as my opinion on this
case will be founded on another point, I decline giving any
opinion, whether, on the whole of the will, the power to sell
was intended to be restricted to the event of John Bleakley, the
son, dying without issue in the life of Archibald Toung. I do not
consider this point as bv any means clear; and if the case rested
solely upon it, I should feel myself inclined to give as much
weight to the direction to the executors of Archibald Toung to
sell, as it would reasonably bear; because it would tend to fa-
vour the brothers and sisters of the testator, who, next to his
son, were the objects of his affection.

Supposing then, that the authority to sell was to arise on the
event of the son's dying, without issue living at the time of his
death, it remains to be considered for what purpose the sale was
to be made. The literal exprcfsion is, that the proceeds shall be
equally divided between the testator's brothers and sisters and

OF PENNSYLVANIA, 559

their heirs, or such of them as should be living at the time of 1809-
his son's death. But none of them were living at that time. Lgssgg
Therefore, to follow the literal expression, there were no per- of
sons in existence, in whose favour the power to sell could be Smith
exercised. It appears to me, that the literal interpretation ac- Pqlwell.
cords with the spirit and intent of the testator. For, although
it might be reasonable to restrain the son fi-om making any
disposition of the real estate, to the prejudice of the testator's
brothers and sisters, who were naturally dear to him, yet it
would be hard to impose such a restriction merely to secure
the estate to nephews and nieces living in a remote country.

It is contended by the counsel for the plaintiff, that the word
heirs may be taken as a word of purchase; and that, by virtue
of it, the heirs of the deceased brothers and sisters may take.
There is no doubt but the word heirs may be so construed,
when it appears that the testator used it with a view o{ desig-
nating' a particular person. But is it so used in this will? I think
not. It is intended to have the effect of giving the property
completelij to the brothers and sisters, who were to take. It is
not an accurate expression; because it is applied to /?i';-*072a/
property, to moncy^ which does not go to heirs but to execu-
tors. However, it is very commonl)' used in wills, to denote an
intent that the legatee shall have the absolute property in money.
To construe the word heirs otherwise than as a word of limita-
tion in this will, would introduce a confusion never intended
by the testator. It was his intent that the persons who took,
should take in equal portions. Now suppose that one of the
brothers had died^ leaving several children; and the others had
been all living at the death of John Bleakley^ the son. Would
each child of the deceased brother have taken an equal share
with the surviving brothers and sisters? This is so monstrous,
that the plainlifl't. counsel do not contend lor it. They say,
that all the children of the deceased should take among them
the share tiiat their parent would have been eniitleti to, if
living. This certainly would be very equitable; but wiiere do
we find it in the will? It is making the will, not construing it.
I am satisfied that the testator, when he gave the direction to
sell, did not look beyond the lives of his brothers and sisters;
and if this construction was not sufficiently clear from the
parts of the will which I have mentioned, it h confirmed by a
•ubsequcnt clause, in which he dirrrf^, that, in rase his son

560 CASES IN THE SUPREME COURT ,

1809. ^^'^s witliout issue, before the age of twenty-one years, the

Lessee remainder of his personal estate (intended to be at his son's

of disposal if he attained the age of twenty-one) shall go to, and

Smith be divided between, his brothers and sisters^ with the proceeds

Vnx wvr °^ ^'^ '"^"^^ estate, as before directed.

The plaintiff's counsel made another point, which it is ne-
cessary to mention; that is, that it was the intent of the testator
that his real estate should be sold at all events, in case of his
son's death without issue. But to this I cannot agree. It is
true, that to sell is one thing, and to dispose ofih^ proceeds of
the sale is another; but to what purpose is the sale to be made,
if there is no person in existence to receive the proceeds? The
cause of the sale ceasing, the authority to sell must cease like-
wise.

Upon the whole of this case, my opinion is, that the contin-
gency, on which the power to sell was to arise, has never taken
effect, and therefore the sale under which the plaintiff claims,
was without authority. Of consequence he has no title, and
judgment must be entered for the defendant.

Yeates J. delivered his opinion at large in concurrence
with the Chief Justice, upon all the points. On the first point
however, whether the power to sell did not depend upon the
death of the son in the life time oi Archibald Toung'^ his Hon-
our said, that as the claim to the 400/. was made in positive
terms to depend upon the son's d\ing without issue in the life-
time of Toiing, and as the 4001. was to be paid before any di-
vidend of the proceeds of sale, in his mind it irresistibly fol-
lowed, that as the son survived Toung^ the legacy did not
arise, and the lands could not be sold.

Brackenridge J. In this case the annuity payable to Ar-
chibald Toung, " diuing the joint lives of him the said Archi-
'■'-bald Toung^ and the son John BleakJeij^ or his heirs lawfully
"begotten," ceases on the death of Archibald Toung^ who died
before John Blcakley die younger. But the 400/. is a birqui st to
depend on theson yoA;z^/(Y//^/«/'.s- dying without issue. For it is
stated to be to him " the said Archibald Toung^ and his assigns;"
and executors and administrators are assigns in law. It is further
stated to be " to my said cousin Arclubald Toung^ not onb. for
" the natural affection I have and bear to him as a relation,

OF PENNSYLVANIA. 561

" but also as a full compensation for the services he has already 1809.

" rendered me, and in lieu of his commission for the trouble ~

. ... Lessee

*' he ma) hereafter have in the execution of this my will;" and Qf

it was in the contemplation of the testator, that Archibald Toung- Smith

micrht not himself" live to execute the will, since he continues the ^ ^''

1- . 1 1 r • I 11 L 1 FOLWF.LI..

direction and order oi executing the will, to the executors and
administrators of Archibald 7'oiing. There was therefore the
same reason that this 400/. should come to the representatives
oi Archibald I'oung^ his executors or administrators rendering
the service, as there was originally that it should come to him-
self. And though " in lieu of his commission for the trouble
" he may hereafter have in the execution of the will" is stated
as an inducement of the bequest or legacy, yet " natural affec-
" tion and a compensation for services he has already render-
" ed," is also an inducement; and there would be an object of
sale for the raising this legacy if no other did exist. For though
the legacy of 400/. is stated to be given in lieu of the annuity,
yet it is not a commutation, but a substitution; and the termi-
nation of the annuity is marked as the commencement of this
other provision: that is, it is as much payable as if no annuity
had preceded it; and although it is " in case of the decease of
" my said son without issue lawfully begotten in the lifetime
" of Archibald T'owig^^'' that the annuity is to cease, yet the
power is continued to the executors and administrators for the
purpose of the sale. Archibald I'cung- dying before sale, yet sale
can be made by his executors or administrators, the 400/.
will be pa\ able, and the dying before the son can have no effect
but as it limits the antiuity. This object therefore of the sale of
the property, and the distribution arising on the sale, did not
cease by the death oH Archibald 2'oung-hciovc the death oi Jofvi
Bleakletj the son.

But taking it, that the contingency of yohn Blcaklcij the
son dying in the lifetime of Archibald Toung' not happen-
ing, the bequest of 400/. is not claimable ijy his representa-
tives, vet tlie main object of the sale in case of Blcaklcij the
son dving without issue, was for the use of the devise over
of the prf)cceds of the estate: " I do hereby give and bequeatli
" the prow^tds there'll';" and there was a reason for a devise of
the proceeds rather than of an undivided interest in the realty
itself, because it superseded the expense and trouble of parti-
tion. Thai the estate in John Blcakley the son, determined on
flying without issue, is clear; and that the remainder over in fee

562 CASES LN THE SUPREME COURT

1809. vested in the trustee Archibald Toiuig; or his executor or ad-

ministrator, for the purpose of sale, is also evident. For had
LrtCsscc

^f even the authority been naked, and not coupled with ^n inte-

Smith rtst, yet by act of assembly, 3 St. Laws- 200. " w hen by the last
^■- *•' will and testament of a decedent, a naked authority only to

•OLWELL. u sell lands shall be given to executors, they shall take and hold
" the same interest in such lands, and have the same powers
" and authorities respecting the same, as if the lands were de-
" vised to them to be sold." Nor does the main object of the
sale cease on the brothers and sisters or either of them dying
before yo/in Blcakleij the son, provided the brothers and sisters
or either of them left children. For the devise of the proceeds
is to " brothers and sisters, and their heirs, or such of thou
"as shall be living at the decease of my said son," to be divi-
ded between them in equal proportions, share and share alike.
To whom? To brothers and sisters, or to heirs of brothers and
sisters, who shall be living at the decease. By the word heirs, I
understand children. What use of the word heirs, if children
were not meant? For the proceeds on a sale going to a brother
or sister, being personal estate, would give them the absolute
interest, without the word heirs. And by the word heirs, I take
to be meant children, because in the language of the people it
means children, and it is in this language that the will is writ-
ten. The popular meaning ought not to be set aside for a
technical sense that defeats the general intention, which
seems to have been that the estate should go over to brothers
;md sisters, and their issue. It is on the death of John Bleak-
ley the son, and of the brothers and sisters, that the proceeds
come immediately to the children. But coming to them as
the children of brothers and sisters, they take, as one person,
that share which would have come to those whom they repre-
: c-nt. It would seem absurd to devise to persons and their heirs, or
such of them as should be living, and, in construction, to confine
ihelivingtothepersons themselves, who must cease tolive before
there can be heirs, that is surviving children. Were it neces-
sary to derive the interest through the stock, we might be em-
barrassed with the law of descentj but the children of the stock
are the immediate takers, the stock ceasing to exist. The de-
vise is to brothers and sisters, and their heirs. It cannot mean
licirs general, and those who are equally the heirs uf one bro-
ther and sister as of another, but the heirs of each brother and

OF PENNSYLVANIA. 56S

sister severally: that is to the children of each the share of the 1809.
parent. I understand it to be as much as to say that the parent j ^^
not living, the child or children shall take, or offspring, or is- ^f
sue, or heir, which is the word used. The extreme case strikes Smith
me of a brother or sister surviving without children, and ""'
the three others deceased leaving children; in which case, on
the opposite construction, the brother or sister without a child,
would take the whole, and the children of the deceased nothing:
which would seem to defeat totally all use of the Ti^&;r/ heirs.

Mv impression upon the whole of this will is, that the tes-
tator meant that in case of his son dying without issue living at
the time of his death, the estate should go over; that a legacy
should go to Archibald Toun;^^ or his representatives, of 400/.,
and the remainder to brothers and sisters of the testator, or
brothers' and sisters' children, but a sale to be made and the
proceeds to be distributed; and that Archibald I'oiaig; his exe-
cutors or administrators should make the sale, which sale
should be made within two years after the contingencyof thcsou
dying without issue. Where there is an executor, or an execu-
tor of an executor, as in this case, there can be no administra-
tor; and therefore the executor of the executor succeeds to the
trust. The sale has been made by the executor, and it is good; for
it is a principle of law, that no execution of a trust shall fail for
want of a trustee; and a court of chancery in England^ where a
trustee fails, will appoint a trustee. With us the law will sanc-
tion the act of him who succeeds to the management ot the
affairs, the pursuit of the rights, and the discharge of the du-
ties of the deceased.

The testator would not seem directly to have contemplated
the event of Archibald Toting dying before the son; but he has
contemplated the dying after and before sale made; and the
provision he has made with an eye to that event, in giving pow-
er to executors to sell, has embraced a case which he may not
have had immediately in view, the d) ing before the son. For
the sale by executors cannot be affected l)y the dying before; nor
do I think the right to the legacy ought to be affected. There is
nothing in it but that the annuity ceased sooner, and the estate,
in the hand of the son, has been ]}ro tanto relieved. Being how
ever, clear as to the intention of the testator in regard of bro-
thers and sisters and their children, and that intention having
nothing in it unnatural or harsh, but on the contrary equal, and

5(54 CASES IN TilE SUPREME COURT

1809. to be approved, I am not disposed to yield easily to objection^
Z drawn from the application of principles of an artificial system,

of What rule of law is there to oppose this construction: The

Smith son took an estate tail by implication. The dying without issue
^'- means the dying without issue living at the time of his death.

This is the meaning in common parlance, and it is sanctioned
by decisions. There is therefore no indefinite failure of issue,
and the contingency is not too remote. The remainder goes
over. The children, if not in esse at the time of the devise, take
what the law calls an executory remainder. They take on two
contingencies. But it is not what is called a double contingency;
for the last is collateral to the first, connected with it, and
springing out of it, and therefore in fact but a single contin-
gency, the children of a certain description of persons taking
on the son dying without issue. If they must be considered as
taking the real estate, they take it immediately under the devise,
and without coming through the stock, but take the interest
the stock would have taken. They take by purchase; and un-
der the designation of heirs, or children, the heirs of each
brother and sister take a fourth. That heirs may be constru-
strued children cannot be disputed. There are innumerable au-
thorities to this. On the contingency happening, the fee is in
the persons designated according to their proportions, or in the
trustee for their use. There will be no abeyance. So that I can
see nothing in the way of taking it as a devise of real estate, or
real estate reduced to personalty, the proceeds to be divided.
I am therefore of opinion that the plaintiff recover.

Judgment for the defendant.

OF PENNSYLVANIA. 565

1809.

Webb and A\ire against Isaac Evans. A^'rii'St

^r^HIS was an appeal from a decision of the Chief Justice A testator

-■- at a circuit court for Z-ancfl.??er in 3Iai/ 1807. JVchh ^i^^hi^g w^fe 'tlu-
wife, who was formerly the wife of Isaac Evans deceased, de-iin|?lier wi-
manded of William and Isaac Evans ^ (the former of whom dicd^^j^,, front'
after action brought) the reasonable dower of the wife in one i;oi'n' i" iiis

1 11 111 r 1 I farm lioiisc,

messuage, one barn, and three hundrea acres oi land more or.^^.^^l^,. .^j^^j
less, as of the endowment of the said Isaac Evans, her late hus-i-'i^ common
band, whereof she had nothing. The defendant pleaded, 1 st, j^^- tchen
a devise and acceptance by the widow in satisfaction of dow-«veii, und

^ . r r • 1 1^1 1 T 1 draw well;

er; 2d, a forfeiture by v/aste; and 3d, a release. Issue was taken jj^. .^^^^^ ^\y(^s
upon all the pleas; and the jury found generally for the demand- ''^r, la con-

, ,, , ■ J- . r • 1 1 • sidcration of

ants, 200 dollars damages. Motions tor a new trial and in 'ir- 1,^.,. sj.jj,,oi.
rest of judgment were made and overruled, and the defendant "\^'' -"^"^^ '^^'^'^^

, "i 1 • 1- 1 I- n • L-diicatini^

appealed to this court ror the lollowing reasons: tin- ciniaren,

1. Because the devises and bequests in the will of /saac tlit- piolits of
Evans deceased to his widow, were inconsistent with, and letttii ids sons
no fund to satisfy the claim of dower; and being accepted by ^""^^ of ag-ft

... , . I • r 1 " » to possess il.

the widow, were a bar to her claim oi dower. jl^. |^|,c.n or-

2. Because the verdict was contrary to law; the jury not'^^J"'* 'Y^'.""'
having found that the husband died seised of any and what into two
estate. P-^'l^, o!>e of

3. Because the writ demanded dower of all the messuages jrives to one
and lands of Isaac Evans deceased, though the demandants)*""' '■'■^^■"■-

. > 1 , 1 ^".K -^ l>i'ivi-

held part thereof under the devise of the iormer liusl)und toK-^eof water
the widow during her widowhood; which excluded her from^'""^'"^^*;'**-'^

. lJ:^'"t, wliicli

claiming dower in the sanie during life. he j^ivcs to

The will of Isaac Evans was dated the 29th November 1781, """^''7 «"".
and contained the following clauses, which alone were thought respectively
material upon the appeal: " Imtirimis, I eive and bequeath to*^'"'""-''^ ,"*
" my beloved wife, one bed and furniture at her choice, six (Urs the son,
"chairs, one armed ditto, one case of drawers, one looking '''''^.^■^'l^*' ^

' ' _ . "partjciilHr

" glass, the whole of the tea furniture, one half of the pewter, part, to keep

"one hackney creature saddle and bridle, and one cow, her '' '""■\"-" ■'.'"^

' cow fur the

choice. I likewise give to my said wife during iier widow- wife, and to

cut anil lay
fircwoodat li' r .!-./,•• .h--:,.,- i,/ :■ -.vldowhoud. I/cLL Ui^tlUie dtvi»«g to tjic wife xre not in
hjir of dower.

Vol., J. 4 C

WKnn

i,66 CASKS IN Tin: SUPKKMi: COURT

1 809. " KooD, the front room of the house xvherein Inoxv I'lve^ the small
" cellar under the kitchen^ with libertij of the commo?i use of the
" kitchen^ oven^drazvwell^ and springhoufie^ with liberty to pass
Evans. " '^^^^^ repass to and from every of the same. I also give and
" bequeath to my said wife, in consideration ofnv.K schoolinc;
" AND WELL EDUCATING niij children, all ciud singular the pro-
'"''fts, rents, and issues,ofall my lands and appurtenances there-
" unto belonging, from the time of ivy decease, until my sons ar-
" rive to their respective ages to possess them as hereinafter
" directed.'''' " Item, It is my will, that my son William, or any
" other person, that shall enjoy the house and premises that I
" nozvlive in and on, shall keep for my said wife one horse crea-
" ture and OJie cow, in good order, arid likewise provide for her
^^ sufficient of good firewood, cut at a proper length and laid
" handy to her door^ during her said rvidowhood.^' " Item, It
" is my will, and I do hereby order that all ?ny land be d'lvided
" into two shares, by a straight line across the whole, so as to
" include one hundred and fifty acres and allowance to the up-
" per or south share, and not to extend further northward than
" the southernmost part of the garden; but if that should not
" include the aforesaid number of acres, I order that so much
*' of my woodland on the west side adjoining, and by a paral-
" lei line, be laid off to the south share, as will make up
" the aforesaid one hundred and fifty acres and allowance."
" Item, I give and devise to my son Isaac, when he arrives to the
" age of twenty-one years, all the aforesaid south share of land,
" together with all and singular the appurtenances thereunto be-
" longing, to him his heirs and assigns forever, reserving a pri-
" vilege of water, as hereinafter expressed^ " Item, I give and
" devise to my son William, ivhen he arrives to the age of twen-
" tif-vne years, all the residue and remainder of my lands and
" premises, with all and singular the buildings and appurtenan-
" ces thereunto belonging, together with the privilege of taking
" the water on his brother Isaac's land, to water his meadow,
" either as it is now or otherwise, as they shall agree, together
" with liberty to pass and repass, and keep the water courses
" in order, doing as little damage as the nature of the case will
" admit of; to him his heirs and assigns forever." " Item, I
" do hereby nominate constitute and appoint my beloved wife
" Ann, whole and sole executrix to this my last will and testa-
" ment. And it is my will, that she take all my personal estate

OF PENNSYLVANIA. 567

^- at a mode) ate value and appraisement^ to be made as soon 1809.
*' as conveniently may be alter my decease, pay all the le- y^^~^
-' gacies as herein directed^ and if it shall happen upon a settle- ■^,^
" ment^ that there is an overplus remaining in her hands, that Evans.
" then she shall divide the same equally to and amongst all my
'•' surviving- children, rvhen the youngest shall arrive at the age
*' of eighteen years, without interest."

The testator had eight children at the time he made his will,
and at his death in 1782: three sons and five daughters. Wil-
liam arrived at 21, in January 1787; and Isaac in August 1796.
John, the third son, to whom he gave 250/. to be paid when he
should arrive at 21, came of age in March 1791. To Mary and
Hannah he gave 150/. each, payable in a year after his death;
and to Sarah, Ann, and Susannah, 1501. each, payable when
they respectively arrived at 18. Sarah arrived at that age in
January 1786, Ami in March 1796, and Susannah in August
1798. The legacies therefore amounted to 1000/. payable at
different times; and the inventory of his whole personal estate
was a little better than 1300/. The wife of the testator remain-
ed on the estate devised to the defendant, until he came of age;
before which period she had been a considerable time married
to IVebb.

Montgomery and Hopiins, for the appellants. We agree that
dower is a favoured claim ; but it is barred by the acceptance
of a collateral devise from the husband, if it was so intended by
him. The only question is, in what manner the intention is to
be ascertained. It certainly need not be express; equity has
long since established a different rule; but if atiy intent to ex-
clude the wife can be collected from the circumstances of the
case appearing upon the will, it is sufficient; Laxvrencev. Law-
rence (a), Jones v. Collyer {h); that is, any plain intent; we do
not contend for a bar, where the arguments each way are in equi-
poise. The rules by which the wife's right is to be tested, are
perfectly settled. They are founded in reason, and in a spirit
of deference to the testator's intention. One rule is, that the
wife cannot claim under, and at the same time in opposition
to the will. Another is, that she cannot take both devise and
dower, where by the will there is no fund to satisfy both. A

^o) 1 Ld. Kay. 438. 1 £ro. C. C. 593 (/') Ambler 7.'. '

568 CASES IN THl' SUPREME COURT

1809. tliirtl, that she cannot take when the devises of the will and her

77, dower arc inconsistent. In all these cases the husband must have

Webu

^, intended to exclude her; because it necessarily follows, that the

Evans, wife, by claiming her dower, contradicts the will. Villa Real v.
Lord Galway (a). In the present case he gives the wife during
her widowhood, which is an estate for life determinable by her
ownact, rtr;jo/?'*crt5e(^),thefrontroomandkitchenin hishouse,
and the common use of the oven, drawwell, and springliouse:
that is, he gives her about one third of the messuage and ap-
purtenances, part of the fund from which dower is to arise.
Here is one evidence of a plain intention to exclude her. She
cannot have both the devise and the dower, because the last
includes the first. It is like the case of Hamilton v. Buck-waiter^
decided by this court in 1798, where the testator devised to his
widow his lands in Lampeter township, during her natural life
of widowhood, and the rest of his lands to other persons. She
married, and then brought dower for the Lampeter lands; and
it was held, that the devise being of part of the lands from which
dower was to arise, the acceptance was an extinguishment of
dower. But he also gives her the profits of all his lands until
his sons arrive at age to possess them: that is, (hey are to pos-
sess them at 21, and not s/ie. Her dower therefore must defeat
iheir possession of one third; which was held to be a strong
circumstance in Villa Real v. Galway. She is to possess the
xvhole under the will for many years after his death. It is cer-
tain then, that he intended to exclude her from dower at the
instant of his death, because she could not have it at that time,
and also hold under the will. But she could not have a right to
dower at anv other time. Her right was complete then, or it
never could be; and therefore, as it was intended to be, and
was, a bar at his death, it was a permanent bar. She is also,
during her life of widowhood, to have a horse and cow kept
for her by the occupant of his house, and firewood cut and laid
at her door. This too is out of the fund which is to satisfy
dower. It is in the nature of an annuity from this fund, which
brings it within Jones v. Collyer^ Gosling- v. IVarburton (c),
Villa Real v. Galway^ Arnold v. Kempstcad {d)^ and Wake v.
Wake, {e) The amount is of no consequence; for in Jones v.
Colhjer and Wake v. Wake^ the annuity was far less than the
dower. The will then proceeds to devise a moiety of his lands

(a) AvMer 682. (c) Cro. Eliz- 128. (e) 3 Ves.jr. 335.

lb) 4 Hep. 3. {d) Vid. Ambler 682.

OF PENNSYLVANIA. 569

to Isaac^ reserving a privilege of water for the other moiety, 1809.
which he gives to William. But the claim of dower is inconsis- ^^,33
tent with both the reservation and the grant; it must in all pro- v.
bability defeat both for the widow's life. The whole will there- Evans.
fore contains ever)' ingredient that is necessary to raise an in-
tention to exclude. That the widow would be destitute after
the children arrived at age, if it were true, would be her own
fault; because she was not bound to accept. But it is not true.
She had the profits of the land for many years, and the inven-
tory of about 1300/. subject to legacies as they should fall
due, without interest; which was worth about 700/. The case
of Kennedy v. Ncdroxu (a) is very distinguishable from this. In
that case there were funds to answer both the devise and dow-
er; the suit was for lands not devised to the wife; and there
was no intention, apparent upon the will, that the wife should
not take, nor any inconsistency, or overthrow of other devises,
produced by her taking.

The jury have found damages. The statute of Merlon^ by
which damages are given in dower, extends only to lands ot
which the husband died seised. They should therefore have
found that he died seised, and of what estate; and for want oi
it, the judgment of damages must be reversed. J5w//. N. P, 116.
Co. Litt. 32. b. The declaration does not even aver a dying
seised; which puts the objection beyond doubt.

C. Smith and Tilghman for the demandants. In the first
place, the record cuts up the argument ol the tenant by the
roots; for the acceptance was put in issue, and with the other
pleas negatived by the general finding of the jur) . But upon
the will, the case is equally with us. Dower is a riglit ol all
others the most favoured. It is the widow's property. She
does not hold it at the will of her husband; but has as firm an
interest in it as he has in the fee, by gift of law which no
conveyance by him can defeat. Her claim is better than the
iieir's, whom the ancestor may disinherit; while she can be de-
prived only by certain crimes. If llicrefore nothing but an
express intention, or the most plain and necessary implication, ^
can disinherit the heir, a fortiori as to the wife; in her case it
chould be incontrovertible. The argument which is drawn fion\
rhe inconsistency of dower with the devise to the 5;ons, prove*

(rt^ 1 Dull 415.

570 CASES IN THE SUPREME COURT

1809. too much. It proves that every devise to the wife must be in
Wkhb~ ^^^ ^^ (lower, if the husband wills away his lands. Such incon-
r. sistency is of no consequence; the testator meant to give only
Evans, what he had a right to give; and his devisee must take subject
to dower and all other incumbrances. Strahan v. Sutton, (o)
The only question is, whether dower is inconsistent with the
devise to the wife. And upon this, it is not sufficient that the
husband did not intend her to take. She does not want his in-
tention in her favour. He must have intended to exclude her;
and this must be made out from the will to be so clear., plain^
and incontrovertible., that the husband could not possibly give
what he has givr-n, consistently with her claim of dower. French
v. Davies. (Ji) The first objection is, that she has a room &c.
fo) life in the farm house; and of the same kind is the other,
that she is entitled to firewood and ihe keeping of a horse and
cow. The old cases of annuities and devises out of the dower
fund, have been ver}' much shaken, if not overthrown, by mo-
dern decisions. It is impossible that Villa Real v. Gahvay., and
Jones V. Collyer., can stand with lord Loughborough's decision
in Pearson v. Pearson^ (c) and lord Thiirloiv's in Foster v.
Cook; I d) the rule in these cases being, that if there is sufficient
to satisfy the annuity and the dower, it does not shew an inten-
tion to bar. Neither can they stand with Kennedy v. Nedroxv;
for there the widow was entitled to an annuity out of the land
in which she claimed dower, and at the same time took fee
simple lands under the will, to four times the value of the
dower; but there being enough to satisfy both, she recovered.
The court there setded the rule for this state, that to bar her, the
implication, that she should not take both, must be strong and
" necessary; or the devise must be entirely inconsistent with the
dower; or the dower must prevent the whole will from taking
effect. Now where is the inconsistency here? If the entire
house had been given to her, how would it have interfered
with her dower in the lands? And as part of the house is given,
that she may have this particular portion at all events, may it
not stand perfectly well with her claim to the residue? As to
• the firewood, &c. it is a personal service imposed upon the
son. There is not then the least evidence of intention to ex-
clude; still less, is there that clear, plain, and incontrovertible

(rt) 3 Ves.jr. 251. (c) 1 Bro. C. C. 290.

(b) 2 Ves.jr. 578 ' d) 3 Bru. C. C. UT-

OF PENNSYLVANIA. 571

evidence. He has devised the rest of his estate generally; 1809.
it has therefore gone cum onert\ and there is a great abundance 77,
to satisfy all claims. Then as to the devise of the profits and -y.
possession of the lands till the sons should come of age: the Evans.
very question was raised in this court, upon the will of Thomas
Grubby who gave the benefit of his real estate to his wife until his
sons came of age to enjoy their possessions; and it was held not
to be a bar. The wife was not put to her claim of dower, until
the sons came of age; but it vested and was complete upon the
death of the husband. There are, however, several cases in
which dower may be suspended. 9 Viner 243. pL 3. and 4.
We might argue with safety, even that the husband intended
her to take. She has the rents and profits of a moderate estate;
but it is upon the express condition of schooling and well
educating the children. She also has the personal estate at an
appraisement, subject to the legacies to the children, among
whom the whole surplus is divisible when the youngest is
eighteen. At that time she is left without any thing upon
earth, except her room, her horse, &c. unless the husband
intended her the benefit of dower.

The jur)', in practice, very rarely find a seisin; nor is it
averred in any of the precedents of declarations in use
among us. The damages must be presumed to have been
given for a detention of the dower after a dying seised. But,
if the court have any doubt, the demandants may release the
damages, and pray judgment of the land; and they may after-
wards aver that the husband died seised, and have a writ of
inquiry. 9 Viner 291. p/. 21.

Yeates J. This is an appeal from the decision of the cir-
cuit court of 7.a/Ka.s7rr wherein a verdict passed for the plaintifls
and the court ovcrruKd a motion for a new trial. 'Ihe ques-
tion arises on the will of Isaac Evans^ whetiier the widow, ac-
cepting the devi.ses therein expressed to her, is thereby barred
from recovering dower in the lands devised to her son Isaac.

The will is dated 29ih of November 1781, and is in these
words. [Mis Honor here referred to the material clauses ofthr
will.]

A variety of cases, upon this subject, occur in the Ent^HsL
book;i. At law it is fully agreed that when the husl)and de\ ises
gcnerallif to the wife, the same cannot be averred to be in sa

572 CASES IN THE SUPREME COURT

1809. Usfactlon of dower, unless it be so expressed, (at) Courts of
Wedu t^q^ity have relaxed this rule; and in some instances where
V. there appeared an evident intention to bar the wife of dower,
Evans, ^vh^re it would disappoint the will in case she took dower, and
where the devises to the widow and her claim of dower would
be inconsistent with each other, have put her to her election.
I have heretofore in this court attempted to review the -Eng--
lish cases on this subject, in the order of time in which the de-
cisions took place; and to shew that the principles of those de-
cisions could not be reconciled. The late case of French v. Da-
vies in 1795,^ 2 Fes. jr. 572. proceeds on the ground that a
widow shall not be put to her election to take under the will
of her husband, or her dower, except by express declaration or
necessary inference from the inconsistency of her claim with
the dispositions of the will. The same principle of decision was
laid down by the master of the rolls in Strahan v. Sutton in
1796. 3 Fes. Jr. 249.

Several cases of dower have occurred in this court and at
nisi prius. In Kennedy v. Nedrow et al. {b) it was determined
in bank, that dower cannot be barred by a collateral recom-
pense, though under the terms of the will the widow took
an annuity out of lands to which her claim of dower extended,
and though she had brought partition for dividing lands under
a devise in the will, in which it was acknowledged that the
moiety of the premises out of which dower was claimed belong-
ed to the tenants. In Hayniltonv. Buckwalter^^whtrem '^wdQ-
ment was entered for the tenant m December ttvm 1798, dower
was claimed in 294 acres of land in Lampeter township, Lan^
raster co\y[\\.Y. The tenant pleaded that John Patton, the former
husband of the demandant, devised to her all his lands in Lam-
peter toxvnship during her natural life of widowhood; but in
case she married, then she was to leave the plantation, on re-
ceiving 50/. a horse and saddle, with her bed and bedclothes;
and this was averred to be in lieu and satisfaction of dower.
The majority of the court were of opinion, that they might in
the construction of a will necessarily imply an intention not
particularly specified in words, though not on arbitrary conjec-
ture, even if founded on the highest degree of probability, (c)
The widow could not possibly hold the lands under the will,

(a) Co. Lin. 36. h. 4. Co. 4. a Bro. Ab. devhe.pl. 69.
•''-n n,ll.A\5. <'r^ 3 7'. i?. 473.

OF PENNSYLVANIA. 575

and be endowed thereof at the same tune. The devise to her of 1809.
those lands during widowhood was a freehold interest deter- Webb
minable on her own act only; (a) and such a devise might be v.
pleaded in bar of dower, where the widow entered under the i^-VANs.
will, and afterwards intermarried. (Z") She could not insist on
continuing in possession after receiving 50/. and the speci-
fic legacies devised to her on leaving the premises. Her claim
of dower therefore was utterly inconsistent with the express
words of the will, and incompatible with the plain intention
thereof. I have gone into the grounds of this decision more
fully, as the defendant's counsel have endeavoured to assimi-
late the two cases.

The case of Joseph Creacraft et uxor v. Wioiis^ on the will
of Jabrz Baldwin (c) came before two of us in the county
of Washing'ton; and M^Cullough et uxor v. Grubb likewise in
Lancaster county. The latter case resembles that before us in
one particular, that the testator there had devised the residue
of the personal estate and all his real estate to his widow, un-
til his several sons arrived to their respective ages of 21 years.
The diftcrcnt members of this court held that the widow was
entitled to dower.

But it has been oljjected, that a clause in this will forms a
material distinction between the two cases. The words are
*' I give to my wife Ann during her widowhood the front
' room of the house wherein I now live, the small cellar under
•' the kitchen, and the common use of the kitchen, oven, and
'' drawwtll, and the privilege of passing and repassing to and
" from every of the same." To this it is a sufficient answer to
say, that the house, kitchen, and premises, out of which these
privileges are granted, do not stand on the lands devised to
Isaac Evans the defendant in this suit; and it is immaterial at
present to determine what operation this would have, as to the
lands devised to Jl'^ii/iam. But waiving this answer, there does
not appear any incompatibility between this devise and the
widow's claim of dower. She was to educate and school the
children until the sons attained their full age; and the profits of
lh<; lands during their minority were given to her for that pur-
pose. It would be harsh indeed to ascrilic to the testator the
intention, that his widow after that time should remain dc-

(n) 4 Co. 3. a. Co. Lilt. 36. 0. (b) Moor.ol. case 102.

(r) AUdiion 350.

Vol. I. 4 D

574 CASES IN THE SUPREME COURT

1809._ pendent on the bounty of her children, in a state of helpless

Webb P*-'""')'- ^^I't suppose this to be the case, we may say with the
^ V. master of the rolls in French v. Davies, " We arc not now say-
i:vAN-s. '' ing what the testator would have done, if he had recollected
" his wife's dower. Privately wc may almost be satisfied, if he
" had recollected it, he would have made a condition upon her.
" He has not done so expressly. Has he done it, so that we
" can, as judges, say it is impossible he could mean her to have
" both? We cannot upon this will say she has disappointed
" him." Or, according to his language in Stralinn v. Sutton^
" we must' suppose every testator meant to give all he had a
'* right to give. The case is clearly decided, that a gift of an
" estate out of which the widow is dowable, does not prevent
" her from taking any other estate the testator has thought
" fit to give her."

In fact this very question came before the late chief justice
Jl'-Kean and myself, in an ejectment commenced by the lessee
of IVilliam Evans against the now plaintiff Webb^ on a case sta-
ted at nisi prius at Lancaster in 3Iaij 1794. We took time to
advise thereon after the argument, and in Jamiary term 1795,
'^ delivered our opinion with our reasons, that the claim of Webb
in right of his wife to her dower, was not inconsistent with or
in contradiction of the will. I see no reason for altering the
opinion which I then formed on due deliberation.

But my mind is not yet satisfied as to the manner of enter-
ing judgment on the verdict. The late mournful event has put
it out ol my power to examine the law, and consult the entries
in such cases, as fully as I intended; and therefore the cause
must be continued under advisement.*

Brackenridge J. concurred.

Cur. adv. vult.

At a subsequent day the demandants by their attorney re-
leased the damages found by the jury; and on motion, the court
gave

Judgment for the demandants.

* His Honour, at the close of his opinion, informed the bar, that the late
Mr. Justice Smith had seen andconcuiTcdinit.

OF PENNSYLVANIA. 575

itfJil 1809.

Ipw357 ~"

^I_il»' Grasser and wife against Eckart and wife. Saturday,

April 1st.

^ I ^HIS was an appeal from the decision of I'eatea J. at a cir- ^v],ci.e ti

-■- cuit court for LancaatiT county, in April 180G. residue of a

The action was brought to recover a distributive share of the noi.«r,n! i''«=

estate of Frederick White^ intestate, from the defendants, who tate is not

in the writ were styled his administrators. The declaration con- {^'^{^[^^^^.l^ •.

lained two counts. The frat was a general indebitatus assump- is always a

sit for money had and received by ^firtr? and wife to the use-jj^",^^"^''

of Grasser and wife in right of the wife; but, although the re- wlicthcrthp

lital of the writ stated the defendants to have been attached ^s (.ptiji^. j ^^ ;^

administrators, the count was against them personallv. The '^'^'"'^^icially,

, . , r 1 1- -1 • 1 • orasiitrus-

second was a special count lor the distributive snare in ques- tee; and this

tion. It recited that Frederick JF/iite, a minor, and only child ^"estionde-

of Frederick JVliite deceased, being possessed of personal pro- the sufficicn-

perty to the value of 3000/. died intestate and without issue, not ^> "* ^lie evi.

having or leaving any brothers and sisters of the whole or half wiiidi the

blood; bv reason whereof the personal estate vested in the next'"'^^"'^''^" i^

r , • o T 1 -1 1- -I • 1 • ^ ii'ade out.

of kin, &c. It then set out a title to a distributive snare in the ijuttlie bare

wife o{ Grosser, that the defendants took upon themselves the •'P.P^'itmenv

burden of administration, and that 3000/. beyond all debts and tor, hprhna

funeral expenses had come to their hands, by reason whereof/'^"*' ^^'i-

1 1 111 1 1 ■ -m t 1-1 di-iicc th:it it

they became liable to pay the plaintut s share, which was aver- js given to
red to amount to 1000/.; and in consideration whereof thev un- '""^ honcfi-
dertook and promised to pay. But the count did not state that a testator
thc)' became liable to pav as administrators, or that thev had f»<lti-s all his

1 }•■..' --rL 1 r 1 111' <l<l)tsandru-

assumed as administrators. 1 he defendants pleaded fion av- „(>ral cxncn^

sumpsit, hlenc adininistrdvit, imd />ai/ment with leave. scstohc

Upon the trial ot the cause, a number of points were made, (.jvis his

and afterwards claboratelv argued upon the appeal; but as this^^''' ~^^'^-

r 1 I • . : . . I « ' ;i,„l till- ilSft

court conlmed their opinion to two, it is unnecessary to give „(i, is iv:U
any other statement than such as is requisite to introduce these' '*'-'"' "'"•'!

. ' his only

points* child, a son,

tlii-n about
five years old, shall be fifteen. He eives his son 15/., a few specific Icffacics, and all liis
real estate; and then orders the residue of his personal estate, i xc<|)t a t:blc and two
stoves, fo /jr aolri by his executors at puhlir s;.le, as soon as nii};-ii( l)e after his dcatli,
to the best advantage; ami nuikei* his wife anil two friends executors. //</(/, th;it they
take as trustees.

A count, rhart^injf man and wife upon a joint asstmiption in consideration fif money had
and received by them to the ]>laintiit 's use, is bad, and cannot be amended under tlic ar«
bit ration law.

Jiidfjmcnt may h^ .-uresti.d for an olijec tion on the face of tlic record, tlion(fh it was n«1
assigned at tlic time of filiiic^ llic niotinn. or of i uti rini'- cin njijx- 11

576 CASES IN THE SUPREME COURT

1 809. fi^e wife of Eckart was the widow of Frederick White the fa-

"Tr thcr, and one of his executors. The father died in 1798, leav-

^,, ing the intestate his only child about five years of age, who
Eckart. died before the 8th July 1800. On the 25th November 1800
these executors settled their account in the register's office, and
acknowledged a balance of 2,434/. 2*. \0d. to remain in their
hands, to be paid as the will directed. All the property came
exclusively into the hands of the defendants in consequence of
this settlement. By a second account filed the 27th February
1805, this balance was considerably reduced; and on the same
day the defendants settled the administration account of the
estate of Frederick White the son, in which they did not charge
themselves with his share of the above balance, which was the
surplus of his father's personal property not disposed of by his
will, and which in fact was the principal part, if not the whole
of the personal property, said to have been left by the son. The
defendants contended that this surplus went to the executors of
the father beneficially, and that the intestate took no part of it;
and for this position they relied upon the will, the material
clauses of which were these.

" As to my worldly estate wherewith it has pleased God to
" bless me, I bequeath the same in the manner following," viz.
" First, I order, and it is my will, that all my just debts and
" funeral expenses be paid and discharged out of my estate,
" by my executors, as soon as conveniently may be after my
" decease."

" Item, Igive and bequeath to my beloved -wife Susannah, the
*' sum of 700/. laxuful money of Pennsylvania, to her her heirs
" and assignfi forever.''^ " I also order that my v^xit Susannah
" may live on the place I now live on until my son arrives at
" the age of fifteen years of age."

" Item, I give, devise, and bequeath, unto my only child
" Frederick White, all the land and real estate I am now pos-
" sessed of, here or elsewhere, to hold to him his heirs and as-
" signs forever. I also give and bequeath unto my said son,
" viy round top chest and all my books, (except my account
" books) and my silver watch, andmij silver shoe and knee buc-
" klcs, txvelve new pervter plates, and ff teen pounds in hard cash
" to be locked in said chest, and to remain there until he is of a
" sufficient age to use them, and also one horse creature, and
" one forty gallon still.'''

OF PENNSYLVANIA. 577

"Item, I give and bequeath unto Frederick Hoofman 20/. 1809.
" without interest, that I lent to the widow Groanbaugh, to him "
" his heirs and assigns." -y.

" It is mij will^ and I order that all the residue and remain- Eckart.
" der of my personal estate (except my dining table and
" TWO stoves) shall be sold by public sale by my executors or
" the survivors of them^ as soon as may be after my decease^ to

" THE best advantage."

He then made his wife executrix, and two of his friends ex-
ecutors of the will, and dated it on the 17th March 1798.

His Honour charged the jury upon this head against the de-
fendants; giving it as his opinion, that the will furnished strong
internal evidence, that White the father did not intend the re-
sidue of his personal estate to go to his executors beneficially;
and that in cases like this, it was always a question of inten-
tion. The jury accordingly found for the plaintiffs, upon the
frst count in the declaration.

The defendants moved for a new trial, which was overruled;
and also in arrest of judgment for a misjoinder of counts in
the declaration, the first charging the defendants personally,
and the second in their representative capacity as administra-
tors. This also was overruled by his Honour, and the defend-
ants entered their appeal.

Hopkins^ for the defendants, went fully into all the objections
urged below. But it is only material to give the substance of
his argument upon the right of the executors under the will
and upon the defects of the declaration. Upon the first question
he argued, that the executors took the residue beneficially. By
law the appointment of an executor vests in him all the perso-
nal estate of the testator; and it belongs to him after payment
of debts and funeral expenses, not as a compensation, but as a
bounty. It is a fundamental presumption of law that the ap-
pointment of executors is ^ gift io them of what is undisposed
of; and although equity converts them into trustees, where it
is necessarily toUected from the will that the testator merely
intended them the office, 2 Fonhl. 131. yet the rule laid down
Ijy lord Thurlow in liowkcr v. Hunter^ (a) is, that the execu-
tors shall take beneficially, " unless there is an irresistible infe-
rence to the contrary." In the present case, one of the execu-

Cci-\ 1 nro. Cha. 3?*1.

578 CASES IN 1 IIK SUPHKMl:: COURT

1809. ^ovsy the wile, has a legacy, but the others not; it there-
"7; fore makes no impression on the case; for it is undeni-

^, ably settled, iha* a legacy to one only ot two or more ex-

KcKAKT editors, shall exclude neither from the surplus, because the
testator might intend to such one a preference pro tanto: Far-
rington v. Kiiightlij (a). The question then comes to this,
whether there is an irresistible inference, or, as it is stated in
Clennellx. Lewthwaiic^ (Jy) 7\ strong and violent presumption in
the present case, that the testator intended his executors to be
trustees for the next of kin; if there is not, then as in England^
so in this state, according to Bondinot v. Bradford^ (c) they
take it beneficially; and there must be a new trial. Upon the
face of the will, there is no such intention to be found. The son
was the only object to interfere with the executors. lie takes the
whole real estate of the testator, which was of great value; he
also takes certain specific legacies, and a small money legac}
which it would have been absurd to give him, and to lock up
in his chest, were he to come in for a large portion of the sur-
plus. The direction to sell, though it was used below as an
argument against the defendants, is in their favour. In the first
place, two stoves and a dining table are excepted from the re-
sidue, in compliance with a known custom among the Germans,
to reserve these articles for the use of their house, and to go
with it to the heir. It shews, in the same manner as an ex-
ception proves the rule, that the son was to have nothing more.
In the next place, the residue to be sold was that which re-
mained after the payment of legacies; the design was therefore
to create a fund for the payment of debts, which was the best
f way to meet them; and a division of the surplus of that fund

in money, among his executors, was the most certain preven-
tive of disputes, and is a confirmation of the principle of law,
that they were objects of his bounty, since he thus consulted
their interest.

In arrest of judgment there arc two objections to the decla-
ration. 1. A misjoinder of counts. The first is in the personal,
and the second in the representative capacity. The plea ol
plene administravit cannot be pleaded to both; and the same
judgment cannot be rendered upon both, yennings v. Nexvman.
(d) Nor is it cured by taking a verdict upon one count. Bagc

{a) 1 P. Wms. 549. Cox\ nate. (c) 2 Dn/l. 268.

(b) 2 Vn: jr. 471 . (rf) 4 D. C- E. 317.

OF PENNSYLVANIA. 579

v. Broniuel. {ii)^2. A misjoinder of persons plaintiffs. Where 1809.
the wife is the meritorious cause of action, she may join with Grasseu
the husband, and not otherwise. Now upon the general money v.
count, nothing of this appears, whatever may be the fact as to Eckart.
the second. It is therefore bad; B'ldgoodv. Way and wife (b),
J^ose and wife v. Bowler; (c) and it may be alleged in arrest
of judgment, or assigned for error. Brig-den v. Pnrkes, (d)
There is also a misjoinder of defendants. The first count
charges man and wife personally, with having jointly received
money to the use of the plaintiffs, and jointly assumed to pay it ;
which cannot be. A married woman can make no contract;
and all the preceding cases against joining her as plaintiff, hold
a fortiori against joining her as defendant.

C. Smith and Tilg'liman for the plaintiffs. It is certainly ques-
tionable whether in Pennsylvania executors have ever taken the
surplus beneficially. In Etigland x\\c law was settled when per-
sonal propertv was of little amount; and equity has uniformh
laboured to get rid of it. It was settled too under the influence
of a principle, that executors were not entitled to compensation
for executing the trust; and hence it has become a standing
rule in equity, that a legacy to an executor, or even to one ot
two executors, for care and trouble^ makes the surplus a trust
for the next kin. The immemorial practice of the register's of-
fice in this state to make an allowance to executors for care
and trouble, is equivalent to a legacy. The allowance is matter
of right; it is supported by tiie authority of an uninterrupted
usage; it has often been recognised by the courts; it is known
by the people, and presumptively in their view at the time of
making their wills; and is therefore a sufficient ground for ar-
guu^ that the Enq-lish rule has never been adopted here. Cer-
tamly there is as much reason to presume an intention against
the executors from such an extraneous circumstance, as Irom
the same circumstance in effect, appearing upon the will.* Tlic
point has not been decided the other way in Pennsylvania.

(a) 3 L,-i: 99. (c) 1 // /?/. 108

(I,) 2 W. Bl. 1236. ((/) 2 ^c.t. t' /'"//. 42-1.

* This point was tl.iborntcly tirjjticd diinn)^ the prcHcnt tc rm \\\ WUson \
Wi/ton, where it appcin*! nccisstirily to require the opiniouof the court, ami
is now under advisement IJut liie ([uestion can rarely arise hereafter, as an
act of assembly of 7th /pnl 1807, makes the executors trustees in all cases
where persons d}ing after the act leave a b»t will in wliich the residue is r\p\
disposed of.

580 CASES IN THE SUPREME COURT

1809. ^^''i«t is given as the judgment of the court in Boudinot v.
~ Bradford^ was merely the sudden opinion of the chief justice,

^ without argument, and without confirmation by the judges.

EcKART. [Smith J. I took very full notes of that case; and they contain
nothing in relation to the point said to have been decided. It
certainly was not the opinion of the court. Yeatrs J. The
opinion attributed to the court, I recollect, fell from the chief
justice; it was a sudden answer to a point made by Mr. Inger-
soll; but there was no decision of the kind by the court.] What
however is the rule of equity in England'? Lord Thurloxv has
said there must be an irrcsintible inference to bar the executor.
His ardent mind prompted him to use too strong a phrase. No
case requires such an inference; a plain intention will disinherit
the heir. The expression is accordingly softened in subsequent
decrees. In Clennel v. Leivthwaite, (a) the master of the rolls
adverts to Bozvker v. Hunter^ in which case he says lord Thur-
loxu is made to say it must be an irresistible inference, which is
not the rule, but it must be a strong and violent presumption;
and in Dicks v. Lambert (b) the same master of the rolls asserts
the rule that the executor is entitled '' unless a reasonable
^^ ground appears upon the will, or as I see I stated m Clennel
** v. Lewthxvaite^ a strong and violent presumption" to the
contrary; thereby shewing an inclination to soften his former
expression, still much weaker than lord Thurloxv^s. The true
rule is given in Urquhart v. King^ (c) " that in equity it is al-
" ways a question of intention." What was the intention here?
The widow is provided for; she has a large legacy, and the
realty until the son is fifteen. This son was the only child. He
has a iitw pewter plates, and 15/. locked up in his trunk; and if
he takes no part of the surplus, he has not a shilling to educate
or to feed him from five years of age to fifteen, nor any thing
to stock his estate, that he may enjoy it when he gets it. Here
is violent presumption, if it be necessary. But the executors
moreover are ordered to sell the residue; not what remains after
payment of legacies m<:;rely,but after debts and funeral expenses,
all which are first provided for in the will. Why then are they
to sell, and at public sale, as soon as possible, and to the best ad-
vantage? To take it according to the defendant's argument, the
tesciit. r is guilty of absurdity in every line. He takes the con-
trol (A the property from those who alone are to enjoy it; he

(a) 2 Ves. jr. 471. {b) 4 Ves. jr. 729. (c) 7 Ves.jr. 228.

OF PENNSYLV'ANIA. 581

commands a public sale, whether they choose to reserve parts 1809.

or not, and he enjoins it to be made to the best advantage, lest "7-^ ~~

, . . . . Urasser

their own interest should not prompt them to sufficient care. i,.

But if on the other hand, it is admitted that he had merely the Eckart.
natural anxiety of a parent for an infant son, and that he was
desirous for his use to convert perishable or unproductive
goods, into a fund to maintain and educate him, and finally to
stock his land, the whole is reasonable and proper. The excep-
tion of the stoves and dining table in fact seals this construc-
tion, and makes it irresistible. If the whole goes to the execu-
tors, so do the parts. It is however conceded, that the stoves
and table go to the son; and that he was intended to take them
for his house. But how is this to be reconciled with any other
position, than that the executors were to take every thing as
trustees? For to take part beneficially and part as trustees is in
conformity with no rule in existence'.

The Jlrst objection in arrest of judgment is obviated by the
verdict, which is upon the first count; the second therefore
goes for nothing; and so seems to be the law from the arguments
and judgment of the court in Rosew Bowler. In modern times
judges have gone very far to support verdicts, and have often
dissented from the doctrine that prevailed at the time o( Bag-c
v. Bromuelivom Lcvim, which case is evidentlv not relied up-
on by Serjeant JVilliams^ though he cites it in his note to
.S't/w;jd'f;.». (a) The objection ishowever obviated byanother con-
sideration, tliat both counts charge the defendants personally.
The second objection was not filed below, and it is contrary to
a rule of the court now to admit it. Rc_(f. 19. Circuit Court. It
would tend to surj)rise, and would enable counsel to throw out
a lure, by assigning a flimsy objection, and concealing the real
point until the argument. But it is not without an answer. A
count upon a promise to man and wife is not bad. A l)ond mav
be given to both, and he may either join her, or refuse as to
her, and bring the action alone. Beaver v. Lane (i), Aleberry v.
Walby (c). A fortiori in this case where the cause of action
survives to the wife. It docs not depend upon the wife's being
the meritorious consideration; for even where a parol promise
is made to the wife during coverture, the husband may make it
good by agreement, and join with her in aisumpiit. Prat and

(a) 2 Saund. 118. (b) 2 Mod. 217. (c) I Stra. 230.

Vol. I. 4 E

582 CASLS IN THE SUPREME COURT

1809. ^'^{/f V. Taijlor. (a) This being after verdict and upon an appeal,
~!^ the court will support the declaration byevery reasonal)le intend-

-,,, ment. T'he objection to a promise hij man and wife is more

EcKART. formidable. It is generally true at law that a married woman
cannot promise. But as we have no court of chancery, every
thing that could support the promise in equity ought to be
intended; and as in equity the promise oi^feme covert in re-
spect to her separate estate is enforced, so may be the rule at
law in this state, and the intendment in the present case; and
the judgment may be so limited as to affect her separate estate,
and the estate and person of her husband; as in Huhne v. Te-
nant and ivife. (b) At all events it is submitted whether the
count may not be amended under the arbitration law, which
seems to embrace every defect of form that can be imagined.
7 St. Laxvs 562. sec. 6.

IngersoU^ in reply, admitted that the right of the executors
to the surplus was a question of intention upon the face of the
will; but he contended that it must be an explicit intention, and
not merely presumptive, which could never rebut the presump-
tion of law in their favour. He said that he did not recollect
the general question of their right ever to have been judicially
mentioned in Pennsylvania except in Boud'inot v. Bradford^
where the chief justice stated the law, as is mentioned in 2
Dallas^ without any dissent by the other members of the court.

The second objection in arrest of judgment, he said, had been
given up, or at least opposed only upon the ground that it had
not been assigned below. But that argument would go to de-
mand a judgment manifestly against law, which no rule should
induce the court to pronounce, especially as they now sat in the
last resort. Rules are made to facilitate business and not to
produce injustice; and though a rule equally strict with the one
cited, requires that exceptions to reports of referees be filed in
lour days, yet exceptions upon the face of the record are al-
ways heard without being filed, Bleckley v. Dunant^ (c) and in
Sjxifford v. Gallagher^ s Executors^ not reported, the court per-
mitted exceptions to be added after the four days. The arbi-
tration law cures only defects in form, and permits amendments
before and at the trial. This is a defect in substance and a

(a) Cro. Eliz. 61. {b) 1 Bro. Cha. 15. (c) 1 Dalt. 129.

OF PENNSYLVANIA. 583

verdict has passed. To strike out th»name of the wife is to alter j goo.

the nature of the action, and to leave it in is to expose her to GrassekT

execution; for it is impossible that there can be any presump- x,.

tion of a separate estate, when all the facts are before the court, Eckakt
having been heard upon a motion for a new trial.

TiLGHMAN C. J. delivered the following opinion for him-
self and the late Mr. Justice Smithy who had perused it after
it was drawn up by the Chief Justice, and accorded with it
throughout.

This case comes before the court on an appeal from the cir-
cuit court of Lancaster county. It is an action on the case for
the recovery of a distributive share of the personal estate of
F. IVhite, claimed by the plaintiffs, Grosser and wife, in right
of the wife. In the writ the defendants are named administra-
tors of F. White. The declaration contains two counts. The
^rst count is against the defendants, not styling- them adminis-
trators^ for money had and received by them for the use of tl^
plaintiffs in ri^ht of the xvife. The second count is special; it
sets forth the pedigree of the family of IVhite^ and deduces to
the plaintiffs, in right of the 'vife^ a title to a distributive share
of the personal estate of F. White. The verdict for the plain-
tiffs was taken on x.\\t first count.

A variety of points have been made, and elaborately argued,
some of which apply to the motion for a new trial, and others
to the motion in arrest of judgment. We consider it unneces-
sary to give an opinion on any of the points urged in favour
of a new trial, but one^ which is on the merits of the plaintiflV
claim; and by which, if the defendants are right, the plaintiffs
are barred, not only in this action, but in any other which may
be brought. The point to which I allude, is this; whether or
no the executors of the will of Frederick White the elder, the
father of /'. White the intestate^ under whom the plaintiffs
claim, took the surplus of the personal estate not disposed of
by the will, for their own benefit^ or as trustees for the next of
kin. In the discussion of this point, the counsel lor the defen-
dants, before they considered tlv; intent of the testator as it ap-
peared by his will, introduced a preliminary question, \\z.
whether, at the time of tbe death of Frederick White the elder,
by the law of Pennsijlvaniuy the appointment of an executor

584 CASES IN THE SUPREME COURT

1809. amounted to a gift of the personal estate as it does in England.
~7. We shall give no opinion on this question, as our opinion will

r. be founded on the will. But 1 think it proper to mention, that
EcKART. we do not consider the point as ever having been judicially
decided, although certainly the opinion thrown out by ('-. J.
M'-Kean^ in 2 Ball. 268, is entitled to great consideration. That
opinion waa not delivered by the court, but by the chief jus-
tice; nor was there anv argument upon it. It was not before the
court for decision; and my brother Smithy who has a very full
note of that case, has examined it, and finds no mention of any
such decision. Our legislature have lately, in my opinion very
wisely, established the law, different from that which prevails
in England; for I am satisfied, that not one man in ten supposed,
when he appointed an executor, that he thereby impliedly made
him a gift of all his personal estate not particularly disposed of.
Taking for granted then at present, that our law was the same
as the Eiiglish when this will was made, let us see what is to
be found in the will. The testator was possessed of a conside-
rable real estate, and a personal estate amounting to upwards of
1800/. clear of debt. He had a wife, and but one child, a son
of about five or six years of age. To his wife, who was one of
his executors, he gave a legacy of 700/., and his whole real
estate until his son attained the age of fifteen; he gave her be-
sides, some specific legacies. To his son he gave some trifling
legacies in the nature of tokens of remembrance, his books,
his shoe and knee buckles, some pewter plates, around topped
chest, and 15/. in cash, all to be locked up in the chest till his
son was of a sufficient age to use them; he also gave him a
horse and a still. To one Frederick Hooj'man he gave 20/.; and
he then directs, " that all the residue or remainder of his per-
" sonal estate (except his dining table and two stoves) should
*' be sold by public sale^ by his executors or the survivors of
" them, as soon as might be after his decease, to the best ad-
'•'• -oantagfJ'^

Although by the law of England the executor takes the un-
disposed surplus for his own benefit, yet the courts have cerT
tainly availed themselves of all reasonable opportunities of
getting over this rule, which was established at a time when
personal estates were generally not of much value. They have
adopted this principle, that where there are dispositions in the
will which appear inconsistent with an intent that the execu-

OF PENNSYLVANIA. 585

tor should take the surplus for his own benefit, he shall take as 1809.
a trustee for the next of kin. For instance, where a legacy is q^^ssfr
given to the executor; for why should he have a legacy, if it v.
was meant that he should have the whole? Cases have been Eckart.
cited to shew the opinions of different judges as to the principle
on which wills should be construed. In Boivker ^ al. v. Hun-
ter y al. 1 Bro. Cas. in Ch. 330. lord Thiirlow lays down the
rule, that the executor shall take- the residue unless there is an
irresistible inference to the contrary. In Dicks v. Lambert^
4 Ves. jr. 729, the expressions of the master of the rolls are,
unless " a reasonable ground'''' appears upon the will. " A strong
"' and violent presumption'''' are the words used by the master
of the rolls in Clenndl v. Lervtlnvaite^ 2 Ves. jr. 471. These
are strong expressions, but after all, we are not to be governed
by words more or less strong, which different judges, or even
the same judge at different times, will use upon the same sub-
ject; but upon the reason and principle on which their opinions
are founded. Indeed we do not receive cases adjudged in
Engla7id since our revolution, as any authority; we only regard
them so far as they appear reasonable. I agree with the master
of the rolls, who declared in Urquhart v. King^ 7 Ves. jr. 228,
that in equity " it is always a question of intention, whether
" the executor is entitled beneficially or as a trustee ; and this
" question depends upon the sufficiency of the evidence by
" which the intention is made out." Here is a principle by
which we may conduct ourselves. Now, so far as evidence is
derived from the will itself, the only rational way of coming at
the truth is to give a fair and candid construction to the whole
will, and determine whether there is ground sufficient to satis-
fy an impartial mind, that the testator did not intend the exe-
cutor to take for his own benefit; for it must not be forgotten
that the bare app(*intment of an executor is prima facie evi-
dence that the personal estate is given to him bcneiiciall)-.

In the will now under consideration, the testator provided
amply for his widow; and amply for his child after he attained
the age of fifteen. Hut if the executors take the residue for
their own use, the child is totally unprovided for till the age of
fifteen. This is an intention not very probable in the case of an
infant child. But if the matter rested here, I should not think
the evidence sufficiently strong to convert the executors into
trustees. I rely on the direction given to tlie executors to sell.

586 CASES IN THE SUPREME COURT

1809. i''or what purpose were they directed to sell, if the property

Ghasser ^^'^^ *^° ^^ ^^^^^ °^^"^ ^"'^ "°' °"b' *o s^*'» '^"^ ^t /JttMc .ya/«»,
X.. and to the best advantage? I can see very good reasoxis for

EcKART. this precaution, in the mind of a parent anxious to secure the
estate of a helpless child; but no reason at all, if the intent was
to give it to the executors. It would not only be useless, but
troublesome and expensive, to the persons who were the ob-
jects of his bounty, and very probably contrary to their wishes.
The answer given by the defendant's counsel, that it was pro-
per to create a fund for the payment of debts, is not satis-
factory; for it is the residue after debts paid ^ that he directs to
be sold. Besides they would have had power to sell for pay-
ment of debts without any direction, if such sale was necessary,
which does not appear. Why were the dining table and two
stoves excepted from the sale? Was it not because the testator
supposed that they would be kept in the house for his child?
Yet he has not given them expressly to the child. How then
was the child to have them, but under the intention of the tes-
tator that the executors should take nothing but as trustees?
For if they took beneficially, they would take these articles as
well as everv thing else not particularly disposed of. My mind
is fully satisfied from the whole of the will, that the residue of
the personal estate was not intended for the benefit of the
executors.

Of the several reasons urged in arrest of judgment, we shall
give our opinion but upon one, which we think decisive,
although it was never mentioned before the judge who tried
the cause in the circuit court, and of course he has given no
opinion upon it. The defendants, man and wife, are jointly
charged upon an assumption made by them to the plaintiffs in
consideration of money had and received by tliem for the use
of the plaintiffs. Here is an attempt to charge a married
woman on a contract made by her jointly with her husband
during the coverture. This is not warranted by any precedent
or principle that I have heard of. A married woman can make
no contract. The plaintiff's counsel have indeed candidly con-
ceded that this count cannot be supported, unless the court
should intend that the wife had a separate estate, and had
contracted this debt on the credit of such estate. As
we have no court of chancery, they suppose that this court
would be warranted in entering a judgment specially, so as to

OF PENNSYLVANIA. 587

effect the purpose which might be more conveniently and 1809.
directly done in a court of chancery. Without inquiring whe- Qj^^ggj-R
ther we have such power, we are very clear that we have no -y^
ground on this record for making the required presumption. Eckart.
There is nothing which indicates that the wife had any sepa-
rate estate, or that she made this contract upon her private and
separate account. We are therefore of opinion, that upon the face
of the declaration there is no cause of action against the wife.

But it is said, this defect is cured by the act '' to regulate
" arbitrations and proceedings in courts of justice," passed
21st of March 1806, sec. 6. 7 St. Laws 562. The great object
of this law was to prevent the merits of a cause from being sa-
crificed to form. The court are authorized to go great lengths
in amendments previous to and even during the trial. This is
right; and I will add that we shall always feel disposed to go
the full length of the court's lawful authority in supporting the
verdicts of juries after a trial of the merits. But the defect in
the present instance is matter of substance. It is a substantial
injurv to charge a married woman with money received by
herself and her husband, in the manner set forth in this de-
claration.

It only remains to take notice of one more point made by
the plaintiff's counsel. They say the court should not attend
to this error, because it was not assigned by the defendant
when he entered his appeal. I think this would be exercising
a strictness too severe. The court have a right, and perhaps,
where injustice is like to take place, are bound in duty to see
that an erroneous judgment is not entered, although it has not
been assigned as an error. We know the hurry in which
business is unavoidably transacted in the circuit courts. The
most industrious counsel will often make omissions; and now
that this court is the court f)f the last resort, we think they
should be particularly cautious not to cut a party off from a
substantial defence, although we trust they will never give
encouragement to captious objections.

Upon the whole of ihis case, our opinion is that iIk- judg-
ment must be arrested.

Yeates J. Upon most of the points argued, this case is an
appeal from my decision in the circuit court, and therefore I
give no opinion here upon them. But the ground upon which

588 CASES IN THE SUPREME COURT

1809. the court think the judgment should be arrested is a new one.
Crasser ^"^ ' "^'^^ °"'^' ^^^ ^^^' ' ^S'"c« ^^'^h ll»tm it is decisive.

T'.

EcKART. Brackenridge J. Concurred with the Chief Justice.

Judgment arrested.

Gratz against Phillips and others, Executors of

Saturday, ^

April 1st. biMON.

Amendment 4 CCOUNT render against the executors of Simori. who

ofadecbra- /\ i i i • i i i i -i-rr i

lion in ac- ^vas Stated by the writ to have been the bailinand receiv-

count ren- g^ of Michael Gratz. Pleas, never bailiff or receiver, and fully

der permit- •'

ted, by add- accounted.

ing to a

count which i • i i i

charged the Rawle on a former day obtained a rule to shew cause why

defendants' ^^^ declaration should not be amended by inserting a count
testator as . , . . , -^ . . °

bailifland in which the plaintilTwas described as surviving partner^ and

receiver of ^^-^ ijiterest as having bce?i held by him jointly with a certain
a count Barnard Gratz deceased; and now in support of the rule, he ci-

himTs'b^ TfT ^^'^ Slipper v. Stidstone (a), Hancock v. Hayman (A), French
&c.ofthe V. Andrade (c), and Ditchburn v. Spracklin (d).

plaintiff" as

surviving

partner of A. Phillips contra, urged that the new count would be a vari-

\\v\tcoTT&s^ ance from the writ, and would put the defendants to the neces-
ponded with sity of meeting a different allegation from that which they

the first I ^

f^^^^ came prepared to encounter.

But the court without difficulty made the rule absolute; ob-
serving, in answer to the last suggestion of Phillips^ that a
continuance would be granted if the defendants were in danger

of a surprise.

Rule absolute.*

• The reporter has been favoured by Mr. Rawle with a short note of the
case of yenningsv. Cox executor of Gayiuorth, decided before Shippen Presi-
dent, in 1789, in which a variance between the declaration and the writ was
held by our practice to be immaterial.

The defendant was summoned as the executor of Gayuiorth, and the decla-
ration charged him accordingly; to which he pleaded ne ungues executor. The

ia)5 D. & E. 493. (c) 6D.&E. 582.

119

34(1
h289

OF PENNSYLVANIA. 589

1809.

l^ CllOX all's Case. Tuesday,

April 4th.

/^iROXALL presented a petition to this court, praying to be The iSih

discharged under the act of 1798, as an insolvent debtor. .^'^'^S'"""^)'^*'

^ . _ insolvent lau'

At the time of his petition, he was confined in the gaol of of April 4th,

Northampton countv; and by the return to the habeas corpus, y^^' ',*'"*
' • • r ' tencled to re-

upon which he was now brought up for a hearing, it appeared lieve al! per-

that he was detained by virtue of two executions and a Cfl6fasf°"f '" ^^'

J ^ tual connne-

from the common pleas of that county. It also appeared in evi- ment, whe-
dence, that he had not been an inhabitant of this state for twOj^\^|,,'"f-^l^|g
years next before his application, but was an inhabitant of state or not;

\ r ~f but .1 nonre-

Nt'Xir Jer.'ieij. side.u debtoi-

Ross^ for the creditors, opposed his discharge, principally n>"st apply
upon two grounds. 1. That not having been an inhabitant for j.i,^,,„^» ^o'
two years, he did not come within the act of 1798. 2. That^Iie court by
being in confinement under process from the common pleas oi ^^^^ ]\e\s '
Northampton^ his application should have been to that court, confinetL
no other having jurisdiction of the case.

Upon the first point, he said it was perfectly clear, that by
the first section of the act, 8 St. Laws^ 132, the case of inha-
bitants was alone embraced. The 14th section, which is the
next that applies to the description of persons entitled to a dis-
charge, is limited in the same manner; except that the first
applies to persons not in confinement, and the fourteenth to per-
sons arrested in execution in vacation. The restriction to in-
habitants seems evident from the duty it imposes upon the
debtor to give bond to a judge of this court, or to the president
or two judges of the common pleas for the county w/uve th^^
debtor resides; and residency being required, it must mean the
residency pointed out by tlie first section. The only remain-
ing section that applies to this point, is tlie eighteenth; by
which all persons in actual confinement by adversary process,
may at the next term after such confinement, petition to be dis-
charged, agreeably to the true spirit and meanini( of the pre-

pbintifT withdrew his firnt lUchiriilion, and fiWd unotlur cliarj^inj^ the dc-.
frndant as excciitor of the executor of Cuyvorlh. The tlcfendunt tlien craved
oyer of the writ, and pUad«-d the variance between the writ and the cotnU,
in abatement. But on argument, the court overndcd thr ph-a in ahatcTneiii
and awarded a rr.rpondcai »'ii.tn

Vol. I. I F

590 CASES IN THE SUPUEiME COURT

1809. vious sections. The previous sections embrace the case of
rrTr~T~T. inhabitants for two years. Unless therefore the debtor be such

Gasc. an inhabitant, he is not within their spirit and meaning.

Upon the second point, he contended that this court could
not interfere. Take the application either under the fourteenth
or eighteenth section. Under the eighteenth, the debtor may
at the next term, after actual confinement, petition for dis-
charge. The court is not mentioned, but the reasonable con-
struction of the phrase is, that it means the next term of the
court, whose process has produced the actual confinement.
Take it under the fourteenth. He is to give bond to appear
before the court, of which the judge to whom he applies is a
member, conditioned for surrendering himself to prison, if he
does not comply with the act. This also means a judg« of the
court by whose execution he has been arrested in vacation. A
contrary construction would enable a party to bring his credi-
tors from Erie to Philadelphia^ and would make the surrender
to the prison of one court, while the application was to
another.

Levy for the petitioner. The act of 1798 is a beneficial law,
and should be construed liberally. If actual confinement for two
years is necessary in the case of a nonresident, the law, though
intended to be more lenient to the debtor than the former law,
is much more severe; for the former law required in such a
case but six months' confinement. Both th-^ 14th and 18th sec*
tions omit the qualification of inhabitancy mentioned in the 1st,
and the terms of the 18th are broad enough to embrace every
case.

As to the point of jurisdiction. This court has very exten-
sive jurisdiction in many cases. The legislature has given it to
them over the whole state, in cases of partition; and if there is
no ambiguity in the words of this act, no exposition can be ad-
mitted against them, merely because they give extensive pow-
ers. By the 1st section, it is evident that wherever the debtor
resides, he may apply to the judges of this court. He may
bring his creditors from Erie to Philadelphia. The legislature
therefore begin by giving the jurisdiction v/e assert. So if ar-
rested, and out on bail; this is one step further. I'hen comes the
14th. It does not say that he must apply to the court from,
which execution issued, but he may apply to any judge of the

OF PENNSYLVANIA. 591

supreme court, or to two judges of the county where he re- «op,Q

sides. Now, according to the opposite argument, il he resides

in Buckfi. and is arrested bv execution from the common pleas ^^P,^*"^^ ^

' - , Case,

in Chester, he cannot apply any where. Here then the law, to

avoid a monstrous inconvenience, docs allow an application to
another court; and the case put furnishes a good reason for al-
lowing a resort to this court in all cases. Then comes the 18th
section. The 14th provides for applications either to this court
or the common pleas in their respective vacations; and the 18th
provides for applications at their respective terms. The objec-
tion to tiie jurisdiction has no merits, it is merely technical, and
therefore the court should lean against it.

TiLGHMAN C. J. delivered the opinion of the court.

It appears that the petitioner is an inhabitant of Nezv jfersei/^
who was confined in the gaol of the county oi Northampton^hy
virtue of one capias and two executions from the court of
common pleas. Several objections have been made to his dis-
charge, of which it will only be necessary to consider two.

Thcjirfit is, that he is not an inhabitant of this state; tlie se-'
cond^ that the process by virtue of which he is confined did
not issue from this court.

The act of assembly under M'hich this petition is exhibited,
extends relief to insolvent debtors in many instances in which
none had been given before. The frst section applies to per-
sons not ill confinement^ who are not entitled to the benefit of
the act, unless they have been inhabitants of the state for two
years next before their application. The fourteenth section re-
lates to persons arrested in execution in vacation. It requires no
previous inhabitancy, but seems to be confined to those who are
residmg in the state; because the petition is to be "to any
*' judge of the supreme court, or the president or anv two
"judges of the court of common pleas for the county where
" the debtor resides^ The eighteenth section is more extensive,
and gives relief to " all persons," (inhabitants or not) " that
" shall be in actual confinement bv adversary process, without
" collusion w ilh the plainliff." Those persons may " at the next
** term after such confini ment," petition to be discharged,
" agreeably to the true spirit and meaning of the aforesaid scc-
•' tlons of this act." On a law so loosely drawn, the court must
put such a construction as is mo«t reasonable, and least inconvc-

592 CASES IN THE SUPREME COURT

1 809. nient. It appears to us that the obvious meaning of " petitioning
77~~ , , " the court at the next term after confuiement," restrains the

V ROXAI.L S , . , '

Case, petitioner to the court by virtue of whose process he is confined.
It is also the most convenient; for it would be attended with
very great inconvenience to bring parties and witnesses to the
supreme court from all parts of the state. If the law clearly
gave the debtor a right to petition this court, the argument
from inconvenience would be of no avail. But where the avoid-
ing of inconvenience accords with the most natural construc-
tion of the words of the law, it is entitled to considerable
weight.

We arc of o])inion, on the whole, that the case of the peti-
tioner is not such as authorizes us to proceed on his petition,
and he must be remanded to the custody of the sheriff" of

Petitioner remanded.

Tuesday, GaRRIGUES agaijist CoXE.

April 4.

THIS was an action upon a policy of insurance for 600
surance " nt dollars, upon the brig MallevUlc valued at 2000 dollars, at

and from," and from Cape Francois to Philadelphia. The policy was ef-
Qfgg^^^.Q^j]^j\ fected on the 11th December 1801, and contained the following
ness must be special memorandum. " If the above vessel, after a regular
the com- " survey, should be condemned for being unsound or rotten^
mcnccmcnt *' the underwriters shall not be bound to pay their subscrip-
i^ndifbe-' " tions upon this policy." The declaration set forth, that on
iweenthat the 11th November 1801, while the brig was proceeding on
sailing' of tlie ^^J* voyage, she sprung a leak, and was by and through the
vessel slic mere danger of the seas, greatly damaged; so that she was

becomes un- i i- , /^ ?-. • i i r i /-

fit for sea Obliged to retum to Cape rrancois^ and was there round unfit

without the to proceed, and that it would cost more to repair her than she

fault of the , , , , , ...

assured, and^^as worth; whereupon she was sold at public auction, and

is afterwards produced only 242 dollars 50 cents.

lost, the as- * • . • , i r l i • r • •

sured may f he cause was tried belore the chief justice, at a nisi

i-ccover. prius in March last, when the following facts appeared in
upon vessel evidence. The Malleville sailed from Philadelphia the 23d

contained a

<Liuse, that if after a reg'ular survey slic shoidd be condemn(;d for being- vn.-iound ov rotten,
the underwriters should not be bound to i)ay theii- subscriptions. Held, that tlie survey
«nd condemnation must siiew unsoundness from decay, and not from accident; and tliere-
fore tlie clause is not u bar, if the survey shews that the unsoundness proceeded from the
gnawing- of rats.
A leak occasioned by rats, without the neglect of the captain, is a peril within the policy.

OF PENNSYLVANIA. 593

September 1801, and arrived at Cape Francois the 12th October. 1809.
On the 10th November 1801, she sailed upon the voyage in-'
sured; and on the next day, without any bad weather, sprung

Garui-

CUES

a leak, in consequence of which she put back, and arrived at -v.
the Cape l\it 15th. After her cargo was taken out, a survey *-oxf..
^as held upon her on the 20th, by order of the tribunal de
premiere instance; and the surveyors reported, that they had
caused four streaks of plank to be taken from her waist, from
stem to stern on both sides, and found that they were in a bad
situation at the load water line, as well as the ribs and tim-
bers, which had been eaten by the rats, and were totally unfit to
receive the nails for replacing the planks. They recommend-
ed several repairs, which they estimated would cost about 600
dollars; but thought that the captain should not incur the ex-
pense, until by another survey it should be ascertained that
the brig required no others. The report was confirmed, and
another survey ordered, which was held on the 30th. The sur-
veyors then reported, that they had ripped off part of the waist
plank, and found the plank and timbers to be very inferior;
that, upon finding this, they thought it useless to continue rip-
ping, having already seen sufficient to prove that the brig was
in so bad a state, that the necessary repairs would exceed her
value when repaired. They therefore recommended an aban-
donment of the vessel, and that she should be condemned and
sold at public auction for the benefit of the concerned. This
report also was confirmed, the vessel condemned and sold, and
the net amount sales 242 dollars 50 cents. One of the sur-
veyors, whose deposition was read upon the trial, swore that
on the first* survey they could not find the leak. On the
second, they directed some of the outward planks to be taken
off, and pait of her ceiling to be opened, and tlu\- found eight
timbers so much rat-eaten, as not to hold nails to replace the
plank; hut from t/uir (rrrirral state, theij were not so defective,
except from being eaten by the rats, as to render her unfit for
sea. He was of opinion that the leak which caused her return,
was produced l)y the rats gnawing her linil)ers, and principally
her outward plank, and not from atiij rottenness; that she might
have been repaired in the United States, but that at Cape Fran-

' Tlif stirvcy licrc spukcn of, w.is proljiilily a Hnrvcy held oa the IZtli ^o-
vember, wlicii tlic siincyors cutild di'S'-fivrr nntliiiij^, tlir rarpo biiiii^ still on
l»oard.

COXE.

594 CASES IN THE SUPREME COURT

1809. ^oi* the carpenters asked 2000 dollars. He thought however,
Garri- ^^^^^ *'' ^^^^ impossible the impression by the rats could have

GVEs ^(^cn made after she left the CapCy or in /ess than three or four
V- 7veeks; that from the appearance of the holes and rat nests,
the rats must have been there still longer; and that she was not
seaworthy at the time of the second survey, or when she left
the Cope. He afterwards saw her at Havannciy in the possession
of a person who had brought her from the Cape, laden with
salt, having merely put in five new timbers, and renewed some
of the outward plank, to patch her up for the voyage. Another
witness also saw her at Havmma, where she was hove down.
He swore that her bottom was sound, though her sheathing
was wormeaten; that from any thing that appeared she was
seaworthy, and he should not have been afraid to sail in her.
That she there received no other repairs but a new sheathing,
which cost 450 dollars; and that she then brought a cargo of
molasses in safety to Philadelphia.

Upon this case the defendant's counsel opposed the claim,
1. because the vessel was proved not to have been seaworthy
at the time oj" sailing- from Cape Francois^ which was the point
of time to which the warranty of seaworthiness applied; or, at
least, that having proved her unseaworthiness at that time, it
threw upon the assured the proof that she was seaworthy when
the risk commenced. 2. Because the survey and condemnation
were a bar under the special memorandum. 3. Because the
eating of rats was not a peril within the policy.

The Chief Justice charged the jury, 1. that the insurance
commenced as soon as the vessel had been safely moored
twenty-four hours at Cape Francois; and that the implied war-
ranty of seaworthiness must be referred to the same time. If
between the commencement of the insurance and the sailing
of the vessel, she became unfit for sea without the fault of the
plaintiff, and was afterwards lost b)' the perils of the sea, the
plaintiff was entitled to recover. 2. With regard to the con-
struction of the policy, he said, that unless the survey shewed
that she was unsound or rotten^ he did not think the plamtlff
was barred of recover)' by force of the policy onli/. As for in-
stance, a vessel might be so disabled as not to be worth repair-
ing, in consequence of sudden accidents, such as loss of masts,
breaking of her timbers by accident, without any decay of the
wood. As to unsoundness by decaij^ it might be very reasonable

COXE.

OF PENNSYLVANIA. 595

to agree that the survey should be sufficient evidence of the j gog.
state of the vessel at the commencement of the risk; but such "q^rrj.
agreement would be very absurd, if applied to injuries arising gues
from sudden accidents and the like. If the survey should say ^ t-
she was unsound and no more^ the plaintiff would be barred.
But if the whole survey taken together shewed a defect arising
from an accident, and not from decay, he thought the case
would be different, and that the plaintiff would not be barred.
Upon the last point his Honour said, that supposing the leak to
have been occasioned by the eating of rats, he was of opinion
that it was a risk within the policy.

The jury found for the plaintiff, seven hundred and twen-
ty one dollars damages.

Burd^ for the defendant, moved for a rule to shew cause why
there should not be anew trial, upon the ground of a misdirec-
tion to the jury; and also because the verdict was contrary to
evidence. And in support of his motion, he now made the
three points upon which the cause was argued at nisi prius.

Upon the first, he contended that the implied warranty of
seaworthiness was coeval not with the risk, but with the sailing
of the vessel. There is in the contract of insurance an implied
agreement, that every thing shall be in that condition in which
it ought to be. Park 220, and of course wlwu it ought to be;
because what should be its condition, must be judged of
with relation to the time when the condition becomes material.
Upon an insurance " at and from," it is not necessary to have
a crew in port, or cables and anchors at the wharf; for that
alone which is material in these situations, respectively, is war-
ranted, and she is portworthy without crew or cables. Hut sea-
worthiness, strictly speaking, is a capacity to bear the ordinary
perils of the voyage; it has no reference to any place but the
sea, nor to any lime but the sailing; and it is therefore the in-
stant she sails on her voyage, that this warranty attaches, be-
cause it is only then that it becomes material. If the warranty,
in a policy " at and from," attaches at the beginning of the
risk, the insurance is void if at that time she is receiving re-
pairs; and there can be no recovery though she is sea^vorthy at
the time of sailing. But the case of Forbes v. Wilson^ {a) is

(a) Parh 229. Hth r<iit. rotr

59G CASES IN THE SUPREME COUHT

1809. Hutly the other way. In Eilcn v. Par/ihison, («) loi-d Mansfield

—^T"""" said it was suflicicnt if the ship was tight, stanch, and strong,

CUES ^' f^^^ ^^'"^ of sailing; so in Shoolhred v. Nutt. (/;) The decision

T. in the case of the Mills frigate, went upon the same ground.

Cox£. Marshall ::>7'1.

But the jury were wrong, whichever way the point be. We
proved her not to be seaworthy at the time of sailing; and the
facts raised a violent presumption that she was not so at the
commencement of the risk. The plaintiff" gave no evidence to
rebut it, though the burden of proof was on him; for the ex-
istence of a leak immediately after sailing, and without bad
weather, threw upon him the proof of her seaworthiness when
the risk commenced. Marsh. 365, Park 221.

In the second place, he argued that the survey and condem-
nation were a flat bar. The surveyors report that the brig was
in so bad a state, mauvais etat^ that her repairs would cost more
than she would be worth when repaired. 'I'his is the very
phrase to indicate unsoundness. 1 Valin 657, 1 Emerig. 583.

Upon the third point, he contended that no damage except
by the act of God, that is, inevitable accident, could be consi-
dered a peril of the sea. Perils of the sea are such accidents as
human prudence cannot guard against; Park 61, Marsh. 416;
for if they can be guarded against, it is laches and negligence,
and the remedy is against the party in fault, and not against the
insurer. Poth. on Ins. 66. sec. 64., 2 Fali)i 79. art. 28. The
question then is, whether the eating of rats is not chargeable
to the captain's neglect. Dale v. Hall, (c) is in point. There
a hoy man undertook to carry goods from one port to another;
and the rats made a leak, in the hoy, whereby the goods were
spoiled. It was held to be negligence in the hoy man, and he
answered the damage. Sir William yoncs^xxX.?, it upon the foot-
ing of ordinary negligence; Jones on Bail 104; and the rule
laid down by Roccus^ and adopted by others, that the captaiii
shall be excused if he has cats on board, is itself an illustration
of the principle. Abb. on Ship. 159., Marsh. 157., 1 Emerig.
377. Here there was no evidence of an endeavour to expel
them from the brig. But whether or not the captain is excu-
sed, this is not a peril of the sea. It is clearly much less so than
the eating of a ship's bottom by worms, which arc a creature

Co) Dou^. 703. (Z.) Park 229. tt. ( c) 1 Wik. 281.

OF PENNSYLVANIA. 597

of the element, and increase its danger. But they were held not j S09.
to be a peril of the sev., in I^o/ii v. Parr, (a) Garki-

GUES

Hallowell and IngersoU for the plaintiff. The risk upon the 'v-
hri^ commenced the 13th October^ twenty four hours after her ^°^''-
an ival at the Cape. Her condition ut that time was left to the
jury, and they were warranted in presuming her to have been
seaworthy, because she carried out a cargo in safely, and the
evidence fixed the injury to a subsequent day. We agree that
from the circumstances of the leak, the burden of proof was on
the plaintiif; but when it appeared that the loss might be attri-
buted to an unforeseen misfortune, the onus probaudi was shitt-
ed to the defendant. Patrick v. Hallct. {b) The question is then,
whether seaworthiness at the commencement of the risk is suf-
ficient upon an insurance '"■ at and from." The argument on the
other side proceeds upon a mistake in not distinguishing be-
tween an insurance " from," and an insurance " at and from."
When lord Mamfidd says, it is sufficient if a vessel be sea-
worthy at the time of sailing, and that if she sail without, there
is no valid policy, he is evidently speaking of an insurance
" from," where the time of sailing is the commencement of the
risk; and so he is understood by Park 228 b. note. But there
is not a dictum in existence, that upon an insurance "at and
" from," the vessel need not be tight and strong when the risk
commences. If she need not, a loss in port might be recovered
under the policy, though it arose from the defect of the vessel.
If then the vessel must be and is in a proper condition when
the policy attaches, and by a peril insured against, she is pre-
vented from being so at the time of sailing, to vitinte the policy
on account of unseaworthiness at sailing, is to defeat it by
one of its own perils. The case of the M'llh frigate (c) is de-
cisive. The objection to that vessel was that she was not
tight, stanch, and strong. Mr. Park says, that the judgment for
the assured turned upon this, that " the evidence did not prc-
" cisely prove that the ship was not seaworthy at the time of the
" insurance takinjr place on the \st April 1 764, on her arrival at
" Nevis, but only that she was so «^ the time of her xai/inj^ on
"the 2r)th full/. And the court uneciuivocally declared that a
" ship that is not, at the commencement of the insurance^ in a fit

(a) 1 Lsp. 444. (A) 1 Johnton 248, ^•) Parh 22H Sth edit.

Vol. I. 4. CI

598 CASUS liN THE SUPREMK COURT

1809. *' condition to perform her voyajje, is not a fit subject for insu-
T; '' ranee." In Forbes v. Wilson the underwriters took a ground

*-*AliHI- . , , r . » 1 111 U

GUES directly opposite to the delendiuii s; they contended that she
r. must be ready for sea when the pohcy attached; but the answer
CoxK. ^Q (^i^.^j ig^ ^l^.jt it is not necessary that she should be ready lor
sea, but she must be sound.

A survev and condemnation have no effect under the me-
morandum, vmless they proceed upon the rottenness and un-
soundness of the vessel in the nature of decay. The reason of
the stipulation is evident. When the timbers perish from natu-
ral decav, it may be impossible to fix whether the unsoundness
was produced by the voyage, or before. The insurers have
cleared themselves of the difficulty. But where the unsound-
ness mav easily be brought home to a peril within the policy,
the reason fails. Here the condemnation was in consequence of
the eating of rats, and the difficulty of getting repairs. The sur-
vey says she was en mauvais etat^ but not pourri^ gate^ or cor-
rompu; and a witness swore that her bottom was sound, and
that with an expense of 450 dollars, she brought a heavy cargo
to Philadelphia. If the defendant sets up a flat bar, he must
bring his case within the very words of the clause; it will not
answer even if the condemnation assign a mixed reason, as un-
soundness, and the want of docks to repair. Watson v. Ins. Co.
N. A. {a)

A leak is a peril insured against, and the only question is
whether it is excepted out of the general perils of the sea,
Avhen it is occasioned by rats. The underwriters are answer-
able for every accident at sea, not attributable to the fault of
the owner or muster. The liability of vessels to the depredation
of rats, is perfectly well known; no human prudence can pre-
vent these animals from making their entry; and the injury
here was inevitable, because it was unforeseen. The case of
Dale v. Hall was between a hoyman and his customer; and
the law between these parties can form no rule for the con-
tract of insurance. The hoyman is discharged by accidents
that bind the underwriter, and vice versa. The one contract is
governed by rules of public policy, the other by the intention
of the parties. The case however stands alone; it is not sup-
. ported by prior authorities, nor has it been since recognised

'.a) Cir. Ct. U. S. Pcnn. Dint.

OF PENNSYLVANIA. 599'

:n any judicial decision. [C. J. Tilghman. IVTy mind at the 1809.
trial rested simply on the abstract point, whether, supposing 7^
the captain not to have been in fault, this was such an injury as gues
the underwriters must answer for.] There was not a sb.adow of ^'•
evidence that the captain was in fault. Then as to Rohlv. Parr: ^°^s-
It turned upon an understanding among the merchants of Z,07i-
don^ that the eating by worms upon the voyage insured, was
not within the policy. The whole was left as a fact to the jury.
If it decided a principle of law, we deny its authority; it is in
direct opposition to the opinion of Emerij^on^ and the case of
the King- Solomon^ referred to by him. 1 Emer. 537.

Levy in reply. Unseaworthiness is such a state of the vessel,
as, without reference to the possibility or impossibility of
avoiding it, renders her unfit for her destined voyage. When is
it material to the contract that the warranty should be true?
Not when the vessel is in harbour. She may be receiving re-
pairs. The policy nevertheless covers her, if it be " at and
"from;" and of course the warranty cannot then attach, for
she has nothing like seaworthiness about her. 'I'here is no get-
ting away from the case oi Forhes v. Wilson. It was an insurance
upon a ship " at and from" Liverpool^ which at the time the
policy was made, was not in a condition to go to sea, but was
undergoing material repairs. Lord Kenijon held that under the
words " at and from" it was sufficient if the ship was seawor-
thy at the time of sailing, for from the nature of the thing the
ship while at the place, probably must be undergoing some re-
pair. If it is sufficient then, so it is material. The warranty
cannot bind as to the assured at one time, and as to the insurer
at another. The inconveniences of the principle are nothing; but
they would be all the greater, if the warranty attached with the
risk. A vessel may arrive at a foreign port, with a leak that
cannot be stopped in twenty-four hours. The policy is void.
She may be struck with ligiiining the day she arrives; it takes
a week to repair her, and she then sails seawortiiv, and is lost:
there can be no recovery. And so in many others. There has
been no proof however, that the brig was sound at the com-
mencement of the jifik; and the plainlilf should have been held
to strict and cogent proof, after such a loss. Marsh. 3G7. It did
not appear in what condition she landed her outward cargo.
From the depositions, it was probable the rats were in her at

(300 CASES IN THE SUPREME COURT

1809. that time, and had given her a death blow. Upon such evi-

~~Z dence the jury had no rio-ht to presume seaworthiness; and as

Garri- ^ ■ o I

Gt'Es there are other causes upon tliis policy, we should be sent

T. back to investigate this matter further.

CoxE. ^5 ^.Q tjjg memorandum: the timbers were reported to be

unsound and rotten; they would not liold the nails, and she
was condemned for this cause. We therefore do bring our-
selves within the words of the clause. The cause of the defect
is of no consequence; the parties have not said that it is; and
as in the common case of a warranty, it is therefore immate-
rial. Rotten and unsound however, mean different things; they
embrace all causes. I do not agree the case of Watson v. Ins.
Co. Nor. Am.^ that if by the survey and condemnation she is
brought expressly within the memorandum, the assignment of
additional causes will take her out.

Upon the last point it has been conceded, that the insurers
are not answerable for the neglect of the master. The case of
Da/e V. Hall is express that the gnawing of rats is ordinary
negligence; no matter between what parties, or upon what con-
tract. It is held not to be inevitable accident, and that is
enough.

The opinion of the court was delivered by

TiLGHMAN C. J. In this cause, as in many others, we feel
the loss of our brother Smith. As the cause was tried before
me, it was not my intention to give any opinion, but in case of
necessity. It has now become necessary. I shall only say, how-
ever, on the points of larVy that I have found no reason to alter
the opinion delivered on the trial; and in that opinion judge
Brackenridj^e concurs with me. The law being settled, the
merits of the case rest on the facts, whether the vessel was in
proper condition at the time the injury from the rats took place,
and whether this injury took place before or after the com-
mencement of the risk insured against, and without the ne-
glect of the captain. To these points the parties gave very little
evidence on the trial, nor did their attention seem to have been
turned towards them. All the proof made by the plaintiff was
that the vessel performed her outward voyage in good time;
but as to her condition, or the condition of her cargo, there was
no evidence. It appears that there are several more actions de-
pending on the same policy; and now that it is understood^, on

OF PENNSYLVANIA. 601

>vhat points the cause turns, it may be expected that the merits 1809.
will be more fully investigated. The court are of opinion that"~^^^^^
it will be most conducive to justice to hold the present case gues
under advisement, till a trial is had in one of the other actions. v.
If the jury find again for the plaintiff, there will be no reason Coxe.
for a new trial in this case; but if a verdict shall be given for
the defendant, it will be proper to grant a new trial, unless the
parties themselves agree on some other arrangement.

Yeates J. took no part in the cause, being related to one
of the parties; but he said at the conclusion of the court's opi-
nion, that he was perfectly satisfied with it.

Cur, adv. viilt.

601
598
599
403

298
361
341
518

Commonwealth against D u a n e . Tuesday,

^ April 4th.

THE defendant was indicted for a libel of the late gover- An act of as-
,,„ • , • /r ■ 1 • 1 •• • scmblv di-

^^1 nor iV-Kean in ins ojpctal capacttij; and at a nisi pi"ius ,,^^,^5 ".c ^],y^

holden bv 2'cates J. in December XzsX.^ was convicted upon fiom and

- . , , aittr the

one count. His counsel then moved in arrest ot judgment, be-p.,s^in^of

cause although the indictment charged the libel to be ;«a/icioz/*, the act no

. ,. , . 1 y- J person shall

scandalous, and seditious, it did not charge it to be ya/.ve, be subject to

which thev held to be necessary under the constitution of thisf^.^'^fy^'""

state. The motion was argued with great ability at December m^nx.," for a

term: and a second argument was directed at this term, itl!"'"^'^"^-"""^'
• <-> ..... tcnccatcom-

being understood that the court was divided in opinion; butmonlaw.
upon calling up the case, it was suggested that an act of as- ^|/^'''.J,''^^,^,j^
scmblv, recently passed, had put an end to the prosecution; to a pioscc-u-
and the court ordered an argument upon this previous point, ^'''" "'*''="
before thev should hear anv further discussion of the merits. conniunccd
The act in question is entitled. An act concerning '''>^"ls,|'"*j.J,^"^'^'^
and was passed the IGth March 1809. It contains but two sec- iKforc tlit-

• « c It pashintr of

ttons, as follows. !h,-act.lM.i

Sect. 1. Be it enacted, &C. That from and after the passing in wliichno
of this act, no person shall be .subject to prosecution by iNmcT-||"'j.*]|^^^
MENT in any of the courts of this commonwealth, for the pub- i>ronounccJ
licalion of papers examining the proceedings of the legislature
or any branch of government, or for investigating the official
conduct of officers or men in a public capacity.

DuANE.

602 CASES IN THE SUPREME COURT

1809. Sect. 2. That in all actions or criminal prosecutions of a U-

Common- ^^^■> ^'**^ neft-ndant may plead the truth thereof in justification,
WEALTH or give the same in evidence; and if 07111 prosecution bij indict-
ment^ or any action, be instituted against any person or persons
contrary to the true intent and meaning of this aet^ the defend-
ant or defendants in such action or indictment may plead this
act in bary or give the same in evidence on the plea of not guilty.
Provided that this act shall be and continue in force for the
term of three years, and from thence to the end of the next
session of the legislature.

J^ush for the defendant. The object of the act in question is
to take away a crime which previously existed, and therefore
that interpretation is to be adopted which favours the suffering
party. We contend that it is retrospective, that it terminates
all prosecutions heretofore commenced for libels upon the
official conduct of men in a public capacity. At the same time
it interferes with no private vested right. The government
alone is interested in the prosecution of criminal suits; it can
terminate them at any stage by a nolle prosequi; it can oblite-
rate the prosecuted offence from the penal code; and provided
it leaves to the citizen his civil remedy for the injury that is
peculiar to himself, it violates no right of property, and it of-
fends no principle of justice. The question is, what was the
intention of the legislature. The defendant is under a prosecu-
tion bv indictment for a libel of governor jlf-Kean in his offi-
cial capacity; and the first section of the law says, that from
and after the passing of the act, no person shall be subject to
prosecution by indictment for such an offf nee. Prosecution has
two meanings. The one is confined and technical, and signifies
the form or mode of suit, as prosecution by indictment, by
appeal, by information; instances of it may be found in 4 Bl.
Comm. 289, 301, 312, 317, 335. The other is an enlarged ge-
neral meaning, indicating the whole train or series of proceed-
ings from the commencement of the suit, to the final judgment
or sentence. 4 Bl. Comm. 320, 1, 2. 337, 362. It is in this sense
we speak of a particular stage of the prosecution, or of being
discharged for want of prosecution; and so it is emphatically
used by Blackstone^ with particular application to this case,
when in the beginning of one of his chapters, he says: " We
" are now to consider the next stage of criminal prosecution,
" after trial and conviction are past, which is that of judgment.''^

OF PENNSYLVANIA. 603

4 Bl. Comm. 575. Judgment therefore is a stage of the prose- igOQ.
cution; it is one which we have not reached; it is future to us; (joji^^oj..
and giving " shall" its strongest effect against us, we must still wealth
be embraced and protected by it. The words of this section v.
are as complete an arrest of judgment as if the law had said no Duane.
person shall hereafter be subject to judgment upon an indict-
ment for the publication in question. But there is another
ground upon which judgment must be ai-rested. The law has
actually repealed the offence of publishing libels upon the offi-
cial conduct of men in a public capacity. There is no longer
such a crime in our penal code. Now nothing is more certain
than that if a statute creating an offence be repealed, all pro-
ceedings under it fall. 1 H. H. P. C. 238, 291. 1 Haxvk. P. C.
b. 1. c. 40. sec. 10. United States v. Passmore. {a) The repeal
does not merely prevent new prosecutions; it cuts up existing
prosecutions by the roots; no one can be punished under the
statute, unless it contains a saving clause. Miller's case^ {b) 4 U.
S, Larvs 204. What is the ground of this principle? Simply
that the offence is gone; and no one can be punished for what
is not a crime at the time of punishment. It must be the same
if an offvince at common law is repealed; its being by statute is
of no consequence. It is the repeal of the offence that is mate-
rial.

If the first section puts an end to the prosecution, nothing
in the second section should sustain it; for the whole act
must stand. An argument may periiaps be drawn from the
word " instituted" as synonymous with commenced; but no
such meaning is assigned to it in any dictionary of reputation.
It is defined by Johnson^io fix, to establish^ to settle; and even
if it does signify to commence, it is not used in such a tense as
to mean prosecutions begun afterwards rather than before.

As to constitutional objections, they can hardly be expec-
ted. The constitution no where says that such prosecutions
shall not be abolished. It merely provides for the security of
the citizen, by allowing him to give the truth in evidence so
long as such prosecutions shall be lawful.

Levy and Inycrsoll for tiie commonwealth. Conslltutional
objections to a statute, :«rr of a nature too eml)arrassing to be

frt) 4 DM. 373. (i) 1 /r. D'.ach. 451

604 CASES IN Tlii: SUPREME COURT

1809. vesnitcd to, except in ;i plain case. But if this act is not

Common- ^mconstitutional, it approaches so closely to the verge of it, as

WEALTH to deserve no liberality of construction. By the first section of

^'- the ninth article, the constitution declares that all men have an

DUANE. • J r -I 1 • u^ X 1

indefeasible right to acqan-e, possess, and protect reputation;
and by the seventh section, in prosecutions for the pul)lication
of papers investigating the official conduct of officers, the truth
thereof may be given in evidence. The one is intended as a
security to reputation; the other as a regulation of the means
of protection, so as to make them consist with the interests of
truth and the public. Together they imply that nothing shall be
done to prevent either the acquisition or vindication of cha-
racter. They imply a continuance of all the sanctions by which
character is defended; and of course the instrument of either a
civil or criminal prosecution as the situation of the culprit,
or of the prosecutor may demand. To expose a servant of the
public to the foulest calumnies, and to leave him no redress
but a civil suit against a person who may have been selected
for his poverty to be the libeller of virtue, and against whom a
verdict for damages would be a solemn mockery, is so com-
plete an overthrow of the means of protecting character, that
if the right remains, it may be said to be without remedy.
Such a law surely deserves not to be extended by construction.
It is contended to be a retrospective act. It was truly said
by judge Patterson in Calder v. Bull^ (a) that there is neither
policy nor safety in such laws; they neither accord with sound
legislation, nor the fundamental principles of the social com-
pact; and if it is possible so to construe a law as to prevent
this effect, it is the duty of courts to do it, because it is a pre-
sumption of reason and justice that such a construction best
accords with the views of the lawmaker. The two sections of
this act must be taken together; for in the construction of a
statute, as of a will, every part should have its influence in fix-
ing the meaning of the whole. The 1st says that no person
shall be subject to prosecution by indictment. This cannot re-
fer to the mode of prosecution; because there is no other mode
of criminal prosecution known to our law, information being
abolished by the constitution. It can therefore only refer to
the particular stage of prosecution, in which an indi^ctment is

Ca) 3 Ball. 397..

OF PENNSYLVANIA. 605

preferred, and must have been introduced to render the law 1809.
prospective. The words " shall" and "' from and after," for- Coji^on-
tify this position, as they have nothing retroactive in their wealth
meaning. This section then does not repeal the offence; it merely ■^•
establishes a rule for the future. But how are defendants to take uane.
advantage of the rule? The 2d section was made for the pur-
pose of giving the answer; they are to plead the act in bar, or
to give it in evidence on the plea of not guilty. Here is another
indication of the stage of the cause to which the act applies.
They are not to use it in arrest of judgment, but before trial;
and of course it cannot be used upon a prosecution that is past
trial. If however any thing is wanting to fix thu intention, we
have it in that clause of the 2d section, by which the reined}'-
is confined to prosecutions instituted contrary to the true intent
and meaning of the act. Whatever may be the critical meaning
of the word institute., its legal signification always is, to com-
mence, or begin; and how can a prosecution be instituted
against the spirit of the act unless it be commenced after-
wards? We have then the words of the first section, which are
prospective, the pleading or giving in evidence of the second,
which is before or at the trial, the reference to prosecutions
instituted against the spirit of the act, which must be afterwards,
and a reasonable and just presumption of the intention of the
lawmakers, all conspiring to take this prosecution out of th,e
statute.

Hof)kinson in reply. The law unquestionably provides, that
after it is passed, there shall be no such offence as that for
which the defendant is indicted. It is no longer an offence in
Pennsiflvania. It cannot lie indicted, it cannot be punished, it
is taken out of the |)cnal code, not with exceptions, but abso-
lutely; and yet the argument is that this judgment cannot be
arrested, and that the defendant must be sentenced for that
which at the moment of sentence is not a crime. But what
are the words of the law? No person shall be subject to prose-
cution bij indictment; that is, as distinguished from civil prose-
cution; this is the universal language. It comes then to a sim
pie (|uestion of fact. Is the defendant now subject to a prose-
cution by indictment? Is he under it? Docs it hang over )iim^
If it does, the law is \ iolatrd.

Vol. f. Ill

606 CASES IN THE SUPREME COURT

1809. The argvimint for the commonwealth upon the second sec-

"(EoMMON^*'°"» is altogether a fallacy. It is, that the right is merely co-
wealth extensive with the remedy pointed out; and because the latter
^'- refers to the time of trial, prosecutions past trial cannot be

UANE. intended by the first section. If this be so, then should
the defendant even in a subsequent prosecution happen to
slip pleading, or pass his trial without vouching the act, he
must be sentenced in spite of the law. This is impossible. The
whole design of that section is to save an argument upon the
question how the act shall get to the knowledge of the jury,
whether through a special plea, or as evidence upon not guilty;
and upon a similar question much time was consumed upon
the trial of this very cause. This is the whole extent of the
2d section, or else the first is a dead letter. There being then
an end to the prosecution by the first, and nothing in the second
to sustain it, the consequence is plain; and it is all the plainer
because retrospective acts taking away offences are so uni-
formly favoured, that it has become a maxim that existing
prosecutions are gone, unless there is a saving clause; it is
only with reference to civil suits that the retrospect of a law
is unjust, because it trenches upon the vested rights of the
citizen.

TiLGHMAN C. J. This is an indictment for a libel against
the late governor M'-Kean, in his official capacity. The defen-
dant was convicted, and moved in arrest of judgment. In this
situation the act concerning libels was passed, the object of
which is to take away the prosecution by indictment, in cases
of this nature. The question now to be decided, is, whether
the court can proceed to give judgment on the indictment.
The counsel for the commonwealih have raised an objection
to this law, on the ground of its being a violation of the ninth
article of the constitution. Although their argument was rather
faintly urged, it is proper to take notice of it. By the first sec-
tion of the ninth article it is declared, tiiat all men have a right
of acquiring, possessing, and protecting property and reputa-
tion; and it is supposed that the protection of reputation will
be less perfect, when the punishment of libels by indictment is
taken away. It may be so ; and I fear it will be so. But it is
sufficient to remark, that the civil remedy by actio?! is still left
unimpaired, and that the proceeding by indictment is not the

OF PENNSYLVANIA. 607

right of the injured portij^ but of the public. The seventh sec- \ 309,
tion of the same article provides, that in prosecutions for the r^^TT T^
publication of papers investigating the official conduct of offi- wealth
cers or men in a public capacity, the truth may be given in "v-
evidence. This, say the counsel for the commonwealth, shews, ■^^A'*^-
that it was understood that there should be prosecutions by in-
dictment. I think it only shews, that at the time of the framing
of the constitution, such prosecutions were lawful, and there
was no reason to suppose that they might not continue to be
lawful; but there is no ground for drawing an inference, that
the constitution intended to provide for the continnmice of such
prosecutions for ever. It was intended to protect the defend-
ant by permitting him, when prosecuted, to give the truth in
evidence; but there is no intimation that it should be unlawful
for the legislature to take away the prosecution altogether.

I will now consider the act of assembly. The first section
enacts, that " from and after the passing of the act, no person
'* shall be subject to prosecution by indictment in any of the
" courts of this commonwealth, for the publication of papers
"' investigating the official conduct of officers, or men in a pub-
*■' lie capacit) ." The prosecution by indictment is the onl\r
criminal prosecution of such offences known to our law ; be-
cause the proceeding by information is forbidden by our con-
stitution. When therefore it is said, that a man shall not be
subject to prosecution by indictment, it is sa) ing that he shall
not be subject to a7i7j criminal prosecution. Now what is a
prosecution? It is the whole proceeding, including the judg-
ment. In the case before us, the judgment, the most material
part of the ])roseculion, remains to be given. Can the court
pronounce judgment, and inflict punishment, wlien the law
declares that the defendant shall not be subject to prosecution?
I do not see how they can.

But it is contended by the counsel for the prosecution, that
although it might be improper to pronounce judgment, if the
matter rested on the first section of the law, yet taking into
consideratit)n the second section, it will appear on the whole,
that there was no intent 10 give relief in case of prosecutions
commenced brforc the passing of the law. It is necessary there-
fore to examine the second section; for it is true, that in constru-
ing any /;r/r^ of a law, the Tt;/j(?/r must be considered; thcdiflerent
parts reflect light on each other; and if possible, such a con-

t08 CASES IN THE SUPREME COURT

1809. stiuction is to be made, as will avoid any contradiction or in-

(.^, consistency. That part of the second section which is material

Common- • '

WEALTH *o *^^ present purpose, dechires, that " if any prosecution by
i'. " indictment be infitituted against any person, contrary to tiie

UuANE. tt {p^j^ intent and meaning ol" this act, the defendant in such in-
" dictment mav plead this act in bar, or give the same in evi-
*■*■ dencc on the plea of not guilty." It appears then, that the
first section declares the laiv^ and the second section providet;
the mode by which in certain cases the defendant shall avaij
himself of that law. The mode of thus availing himself, is con-
fined to indictments which have not been tried; and I incline
to think, although I give no decided opinion, that it is confined
to prosecutions commenced after the passing of the law. For,
without entering into a critical examination of the meaning of
the word institute^ in common parlance, when applied to legal
proceedings, it signifies the cotn7nencement of the proceeding.
When we talk of iiistitutiiig an action, we understand bring-
ing an action. Supposing then that this is the meaning of the
word, which is giving the greatest possible weight to the argu-
ment for the commonwealth, how will the matter stand? It
will hardly be contended that the ajjhmativc words in the se-
cond section, confine the defendant to the mode of defence
pointed out in that section, if the first section entitles him to
other modes of defence. For instance, if a prosecution is com-
menced after the passing of the law, for a matter which on the
face of the indictment is a libel against a man in his official ca-
pacity, the defendant may surely take advantage of this act,
by motion in arrest of judgment, although he neither pleaded
it in bar, nor gave it in evidence on the plea of not guilty. I
conclude, therefore, that there is no contradiction or inconsis-
tency in giving to the second section the construction contend-
ed for by the commonwealth; and at the same time allowing
the first section to operate in its full extent. If the legislature
intended that the proceedings should be continued on indict-
ments already commenced, they ought to have said so express-
ly. This law is not drawn as clearly as it might have been. If
the same expressions had been used, as applied to a civil ac-
tion, I should have thought myself warranted in giving it a
different construction, because then it would have operated in
a retrospective manner, so as to take away from a citizen a
^^'"ifed right. But there is a wide diflF"erence between a czt;z/and

OF PENNSYLVANIA. ' 609

a criminal action. In the latter, the commonwealth only relin- 1809.
quishes its own right of inflicting punishment. In nothing is ~7, "^

the common law, which we have inherited from our ancestors, wealth
more conspicuous, than in its mild and merciful intendments i'-
towards those who are the objects of punishment. We apply ^^uane.
the principles of this law to the construction of statutes. Sup-
posing, therefore, as is certainly the case, that this act is not
without obscurity, I feel myself on the safest and strongest
ground, in adopting that construction which takes away the
punishment.

My opinion is that the judgment be arrested.

Yeates J. It appears to me that the meaning of the words
in the late act concerning libels, " that from and after the
" passing of this act no person .9A«///;<' subject to prosecution by
'* indictment," &c. refers to indictments found after the law
was enacted. The expressions of the legislature are in ihit fu-
ture tense, and in my idea not retrospective. This construction
seems strengthened by the second section, " that if any prose-
" cution by indictment, or any action be instituted ?\.^^\ust any
" person or persons contrary to the true intent and meaning of
" this act, the defendant or defendants in such action or indict-
" ment may plead this act in bar, or give the same in evidence
" on the plea of not guilty." The provisions here relate to in-
dictments thereafter originated or set on foot, and where there
has been no plea or trial; and cannot be extended to indictments
already found, particularly where juries have passed upon them.
I have thrown my sentiments hastily together, within these
few minutes past; and deem it my duty to mention them, as
the result of my judgment upon the argument.

Brackenridge J. I am of opinion with the chief justice,
hat the act of assembly has put an end to tlie prosecution.

Judgment arrested.

610 CASES IN THE SUPREME COURT

1809.

lb 61U

(Sst4'26

10s 1 34 '2

2w4()7

April 4th. In Error.

Wallace against James and John Baker.

74 314
85 375

The defend- -|-^ RRQR to the common pleas of Philadelphia countv.

ant .igTeeani ti .

writing- th.'.t ^—^ The record was of an action of assumpsit by the Bakers

a honse upon jj -j^gj. ff^^//^c^. l\^^. clcclaration in which contained four

which he o

had a claim of counts:

should b^ ^^^ "^^^ ^"'^"^ ^'^'"^ '^ colloquium on the 23d June 1804, be-

sold and tween the plaintiffs and defendant, concerning the sale of goods
and that the ^^ ^^^ plaintiffs to a certain Robert Berrett and Ajidrew C. Smithy
dittlrencc and concerning the sale of a house occupied by Berrett on
chVm^ind^'^ which the defendant had a claim of 6000 dolls, and an agree-
that sum ment by the defendant that the house should be sold and bring
^aidtothe ^^^^ dolls.j and that the difference between that sum and
plaintiffs; 6000 dolls. should be paid to the plaintiffs in part payment of
petenrto"""^^*^ goods. It then stated that upon that discourse the plaintiffs
him to give agreed to sell and deliver the goods to Berrett and Smith, in
jpj^'^g ^l'j^^jj_ consideration whereof the defendant agreed to guarantee to
was not them that the house should be sold and should bring 8000
hTm'to pay dolls. and that the difference between that sum and his claim
any money, of 6000 dolls. should be paid to the plaintiffs; and that after-
surplus, wards, to wit, the day and year aforesaid, the defendant, in
whatever it consideration of the agreement aforesaid, and also in conside-
that the ' ration that the plaintiffs had promised to perform all things in

house should til e agreement on their part to be performed, promised to per-

brinc above . n i • o i • r i i r

6000. form all things, &c. on his part. It then averred a performance

Declarations by the plaintiffs, and that, although the defendant in pursuance
made by the - . . i r i i n i

party at the of the agreement paid 1000 dolls, parcel of the 2000 dolls, the

time of exe- difference, &c. he had not sold or caused to be sold the said

cutmg- a • 1 1 • 1

written house, nor paid or caused to be paid the said 1000 dolls, re-

agreemcnt, gidue, &c. (althowrh to do this, the defendant afterwards, to
notevidence, . , , ^ . , ,> • , ,

if not com- wtt^ the day and year aforesaid^ at the county aforesaid, and

mumcated often afterwards was requested by the plaintiffs.)

to the other , ' . ^ ^ . . . .^

party. The 2d count laid the colloquium between the plamtiffs,

The'declara-^^^^^^^ and Smith, and the defendant, and that B, and S. had

tion laid a '

request to

sell the house and to pay the money, "on the day and year aforesaid," which was the day

of the contract. Held, tliat the request is well laid, though the defendant has a reasonable

time to sell the house and pay, after the contract.

OF PENNSYLVANIA. 611

proposed to the plaintiffs to sell the goods, and had offered to 1809.
pav for them partly bv the sale of the house, the proceeds of 777~~~~~
which above 6000 dolls, the plaintiffs were to receive, and x>.
partly out of their proper funds, to which the plaintiffs assent- Baker
ed. And that the defendant in consideration that the plaintiffs
would sell, &c. assumed that the house should be sold and
bring 8000 dolls, and so on, as in the first count, omitting the
partial payment.

The 3d count laid that in consideration the plaintiffs at the
request of the defendant, would sell and deliver to Berrett and
Smithy divers goods to the value of 10000 dollars, the defend-
ant undertook and promised in writing that he would thereb^^
guarantee to them that the house then occupied by Berrett
should be sold and bring 8000 dolls, and that the difference
between his claim of 6000 dolls, and that sum should be paid
to them. That the plaintiffs confiding therein, did at the defend-
ant's request, sell and deliver, &c. of which the defendant had
notice; by reason whereof, and according to the tenor and effect
of the said promise, the defendant became liable to pay the
difference between 8000 dolls, and 6000 dolls, to wit, 2000
dolls, and being so liable he promised to pay, when he should
be thereto afterwards required.

The 4th was a count for goods sold to Berrett and Smithy
at the special instance and request of the defendant.

Upon the trial of the cause it appeared that Berrett and
Smith were in treaty for the stock in trade of the plaintiffs, and
that Smith had negotiated with the defendant to give the en-
gagement which was the ground of action. This engagement
and two notes which preceded it, were as follows:

" Messrs. Berrett and Smith will have the goodness to say
" whether they have determined with respect to the stock; as
*' wc have been and are hourly deprived of making sales, which
*' is a serious disappointmrni and loss. If Mr. Wallace is de-
" termined on selling the house, we j)resumc he can have no
" objections to saying he 7i'ill/)ni/ k.v the difference between his
'* claitn and the amount. W\: are &c."

" James and John Bairr.""

" 22d yune 1 804-"

"To Berrett iind Smifhr

<)12 CASES IN THE SUPREME COURT

1809. '''' ('cntlemen^

^7r~~7~ " Ml' Wallace assents to your proposals in your note of

^, " being answerable tor rvhatcvcr .sum the house mat) bring over

Baker. " h\s claim of 6000 dolls, which shall be accomplished as soon

" as possible, and you receive the cash from him."

'■'■ Berrett and Smith,^^
''To y.andj. Baker r

" I agree to the above.

" Burton Wallace:'

" I do hereby guarantee to Messrs. James and Jolm Bakei
" that the house now occupied by Mr. Robert Berrett shall be
" sold, and bring eight thousand dollars, and the difference be-
*' tween my claim of six thousand dollars and that sum, shall
'' be paid them."

" Burton Wallace:'

" Philadelphia, gillie 23, 1804."

The defendant offered a witness to prove that it was never
intended by him that he should pay or deliver to the plaintifft.
any money whatever, but the surplus, if any there should he,
beyond the sum of 6000 dolls, expected to arise from the sale of
the house. He also offered to prove the declarations of Andrew
Smith on whose instance and behalf he entered into the en-
gagement, and the declarations and understandings of Smith
and himself, before he signed the engagement of 23d oijuney
although the plaintiffs were not present when they were made.
But the evidence was overruled by the court. The court then
charged the jury that the defendant was bound to sell the house
in a reasonable time, and that the contract being made the
23d of June 1804, and the action brought in May 1805, they
were competent to say whether reasonable time had been al-
lowed; that the note was not void under the act of frauds and
perjuries; that the demand, not being for a precedent debt or
duty, the declaration had duly stated a special request, of
which evidence had been given that they were to decide upon;
and finally that the consideration of the agreement was valid,
the plaintiffs having in consequence of it parted with their pro-
perty. To this opinion and charge the defendant tendered a bill
of exceptions, which the court allowed, and the jury found foi
the plaintiffs.

OF PENNSYLVANIA. 613

C. y. IiigersoU^ for the plaintiff in error, made three points. 1809.
1. That the parol evidence was improperly rejected. 2. That ^^Y~^^^^^^
no request was sufficiently laid in the declaration. 3. That the v.
contract was without consideration, and void. Baker,

1. The instrument of ^odjune was merely a parol agree-
ment: it is so declared upon; and therefore was liable to be af-
fected in every way by parol evidence. But giving it even the
sanctity of a deed, the evidence was proper under the English
cases, and most clearly under our own. The object was to add
a condition to the agreement; that is, to pay 2000 dollars, /jro-
-j'ldfd the house was sold and brought 8000 dolls, which was
clearly the intention of the plaintiff's note of 22d June; this
was allowed in Snowball v. Vicaris. («) It is not necessary that
the parol evidence should go to establish a trust or fraud; it is
allowed to take away a legacy, Bigelston v. Grubby (b) to shew
a mistake, yoynes v. Statham^ {c) and to shew that a written
agreement has been discharged. Pitcairn\.Ogbourne.{d^ In all
these cases it was allowed to vary and contradict the writing.
The case of Meem v. Ansell^ (e) upon the authority of which it
was ruled against us below, is too strict, and has been shaken by
subsequent decisions. Doe v. Burt {/)-, The King v. Scammoyi-
den (g)y Small V. Allen (h). But in Pennsylvania^ we have car-
ried the rule further than in England. In Thompsori's Lessee v.
IVhite^ (i) the rule in Harvey v, Harvey (i) that parol evidence
may be given of declarations made before the execution of a
deed, to shew the design with which it was executed, was
adopted by the whole court; and in Field v. Biddle (/) parol
evidence was admitted to prove an agreement that an absolute
bond should be void, unless a ratification of certain articles of
composition should be sent from England in six months. Mr.
Justice /^rarZ/brr/ appeared to think it was going much further
than the English books, but he said he was bound by Eliirst v.
Kirkbride^ the particulars of which are not reported.

2. The special counts in the declaration conclude with a lict-l
sKpe reqnisitits; and although the two first, in addition Xo this,
lay a time, it is the same time with the contract, which was be-
fore the lapse of a reasonable time, when the duty arose. Th«-

(a) Bunb. \7S. (r ) .3 mU. 273. (/) 2 Dall. 425.

(/>) 2 Atk. 47. (/) 1 1). C- K. 701. (/•) 2 Cha. C,i. im

(c ) 3 Aft. 3H7. is) ^ J^ (^^ 1"' 471. (/) 2 Dnll in

{d)2 Vet. 378. /",',)« /). C-. £. 117

VoT. T. I f

614 CASKS IN THE SUPREME COURT

1809. sale of the house was a collateral duty arising upon demand

w . T T .TTT J^ftcr reasonable time, and therefore a special demand was ne-

i<_ cessarv. B/ris v. Trippett (a), Selman v. Kin!^ (b). And the

Bakur. icquest before reasonal")le time will not answer, for it should

be made, when the duty ought to be performed. Fitzhugh v.

Dennvigton. (c)

3. There was no consideration moving to or from the de-
fendant; he was a stranger, and the agreement a mere curtesy.
Crow V. Rogers, {d^

Nervcomb and .9. Levy for defendants in error. The case is
entirely clear of the decisions upon parol evidence. The evi-
dence offered, was of the defendant's intentions^ never commu-
nicated to the plaintiffs, and of declarations made in their ab-
sence, but without stating of what nature, or at what time. The
agreement being in writing and very explicit, no intentions or
declarations not communicated to the plaintiffs could form a
part of it. Smithy to whom they were made known was not
their agent, but the object of the contract; and it would be
opening a door to the most terrible frauds, to trip up the hold-
er of a positive agreement by secret declarations to a third per-
son. But it was properly rejected, relation being had to the
agreement's being in writing. iMeers v. Ansell has never been
overruled. Doe v. Burt turned upon the construction of the
writing on its lace. In The King v. Scammonden the evidence
was allowed merely to shew a different consideration from that
expressed in the deed; and in Small v. Allen it was admitted to
defeat a fraud. The case was affirmed in Preston v. Mer-
ceau. (f) The ruk in Penrisylvania^ is the same as in England;
for by a note of C. J. Shippen^ Hurst v. Kirkbride^ which hus
been thought to varv the rule, turns out to have been a case of
gross fraud. Parol evidence is allowed in the cases of trust and
fraud; it is also allowed to explain ambiguities, but never to
varv or contradict the written instrument. And so are the
cases from Dallas. Peakc's Ev. 1 12. 1 14. Finney v. Finney, (f)
Here there is not a suggestion of fraud. The agreement of 22d
yune was altered on the 23d, and the object of the evidence
was to set up the first agreement.

(fl) 1 SaunJ 53. (c) 6 Mod. 227. 2C0 (e) 2 JV. Black. 1249.

(/;) Cra. Jac. 183. {,d ) 1 Ulra. 592. (/) 1 WiU. 34.

OF PENNSYLVANIA. 615

There is a request laid both in time and place, and the only 1809.
question is whether the time was proper, being laid on the77^~
same day with the contract. In the first place, this was not a ^,.
duty arising- upon demand, but merely payable on demand; it Bakf.u.
was not a collateral, but an original undertaking; Bull. N. P. 2 80.
Capp V. Lancaster (a), and Harxvood v. Turberville. (b) Then
even if it arose upon demand, it did not arise after a particular
time had elapsed, so as to require a demand after that time,
which was the case of Fitzhiigk v. Dennington; but no time
was appointed, and then the request might be made immedi-
ately, and the party left a reasonable time afterwards, which is
the distinction of Holt in 6 3Iod. 260. Wallace however paid
1000 dollars, which acknowledged a demand, as well as
reasonable time.

The consideration is too plain for argument. The agreement
was in consideration that the plaintiffs would sell goods to a
third person, which they accordingly sold. Loss to the plain-
tiff is as good a ground of contract as benefit to the defend-
ant. 1 Pow, Con. 344. 1 Fonbl. 536.

Ingersoll in reply. The effect of the evidence is one thing;
whether it should have been heard is another. As a general
principle, independent of statutes, there is no difference be-
tween contracts by word of mouth, and contracts in writing
not under seal. Rann v. Hughes, (c) They are all parol. The
agreement here is declared upon as parol. If it is not, how do
they find out the consideration? The instrument expresses
none; and the plaintiffs are therefore in the dilemma of allow-
ing it to be parol, and then it is open to every proof, or all
written, and then it is bad for want of consideration. The de-
clarations it is true varied the writing; but they must have been
made at the time of signing it, tor on the day before, the con-
tract was clearly against the plaintiffs; they therefore come
within Hurst v. Kirkbride, where declarations at the time were
allowed to contradict the deed. Both declarations and inten-
tions must have been offered to shew that the defendant was
cheated, which makes it a case of fraud; whether the plainiifl's
knew it, should have gone to the jury. The request to sell the

{a) Cm. Eliz. 518. (A) 6 Mod. 200. ( c) 7 Z>. O E. 351. note.

t)iO CASES IN THE SUPHKML COUR'l

1809. housf and to pay the money is laid as all one act; 'vvhereas
Wallace ^''*^ defendant unless hastened to do both, had his life to do
V. them in.
Bakeu. ji

TiLGHMAN C. J. This case arises on a writ of error to the 'j
court of common pleas of the county of Philadelfjhia. Annexed •'
to the record is a bill of exceptions, stating several exceptions 'i
to the opinion of the court. The principal and indeed the only _
one of any weight, is that to the rejection of the parol testimo-
ny offered by the defendant, in contradiction to the writing on
which the plaintiff founded his action. There have been many
decisions in this court in favour of the admission of parol evi-
dence, even in contradiction to written instruments. These de-
cisions have been chiefly in cases ofyrfl?^^ and oi trust. I think
the law will be found accurately stated in the Lessee of Thomp-
son and wife v. White^ 1 Dall. 424. where C. J. M'-Kean deli-
vered the opinion of the court after full consideration. The
leading case on this subject is that of Hursfs Lessee v. Kirk-
hride^ tried at nisi prius in Bucks county 24th of March 1773.
As that case has been often cited and relied on by counsel and
recognised by the court, and is not in print, I have procured a
state of it from the notes of C. J. Cheiv^ who was counsel for
Kirkbride. The plaintiff Timothy Hurst claimed the manor of
Pennshurij under a deed from Robert Edward Fell. This deed
(dated 10th of May 1770, and made in pursuance of and inex-
act conformity to articles of agreement dated 10th oi April
1770) after describing a large lot of ground on South street in
the city of Philadelphia^ contained general expressions, compre-
hending all the grantor's lands in Pennsylvania^ and elsewhere
in America. The counsel for the defendant offered to prove by
parol testimony, that it was not the intent of the parties to con-
vey the manor of Pennsbury^ and that the sale of the manor
was excepted at the time of executing the articles and deed.
The court, after argument, permitted evidence to be given by
William Parr the conveyancer who drew the writings, of con-
versations which he had with the parties when he received his
instructions for drawing the writings, and while he was draw-
ing them; and also that immediately after Fell had signed and
sealed the writings, before he rose from his chair, and before
the witnesses had signed their names, he mentioned the manor
of Pennsbury to Hurst^ who answered, " As to the manor, sir, I

OF PENNS VLVAXI A . 617

'* will treat with you about it another time." The truth was, that 1809.
Fell had not a good title to the manor, and had afterwards sold ^v^llace
it to Kirkbride^ not in his own right, but as attorney for the -j,.
real owners in England. Now it was a gross fraud in Hurst, Baker.
after all that had passed, to set up a claim to the manor, under
the deed from Fell. But neither that case, nor any other which
has been cited for the plaintiff in error will support the excep-
tion to the opinion of the court of common pleas. Let us eX'
amine the evidence which was rejected. The defendant below
offered to prove " that it was never intended by him, that he
" should pav or deliver to the plaintiifs any money whatever,
'' but the surplus, if any there should be, bejond the sum of
*■' 6000 dolls., expected to arise from the sale of the house."
But it does not appear that such intention was ever made
known to the plaintiffs, and therefore it ought not to affect
them. The defendant offered to prove further " the declara-
" tions of Andrew Smith, at whose instance and request, and
" in whose behalf the defendant entered into the said writing,
" and the declarations and understandings of the said Andrew
" Smith and of the defendant, before he signed the said writing,
" although the plaintiffs were not present at the time of making
" the said declarations." The bill of exceptions is defective in
not stating what these declarations and understandings were.
The court should be informed of their nature. But whatever
they might have been, they were improper evidence, because
the party to be affected by them was absent, nor can we pre-
sume that he ever heard of them. It is not stated that Andreio
Smith was in any manner the agent of the plaintiffs; if he had
been, the case would have been very different. The matter then
is simply this. The defendant executes a writing, on the faith
of which the plaintiffs part with valual)lc property, and after-
wards wants U) prove that before he signed it, he had inten-
tions and made declarations tending to render it of no value,
which were never communicated to the plaintiffs. Under these
circumstances is there auyj'raud in insisting on an exact fulfil-
ment of the written engagement? Or is there any justice in
permitting the plaintiffs to be effected by the evidence of mat-
ters, unknown to them when they made their contract? It is
vcT}' clear that this testimony was properly rejected.

The second exception is, that the plaintiffs did not lay in
their declaration, a special request to perform the guarantee,

Baker.

618 CASES IN THE SUPREME COURT, &c.

1809. "01" fJiJ they prove such request. I think the request is suffi-
Wallace ciently set forth in the declaration; and as to the proof, the
V. judge submitted the case to the jury on the evidence, so that
there could be no error in law, in that.

The /rt.v? exception is, that there was no consideration for the
defendant's assumption. This exception must have been taken
in a hurry; it is expressly laid in the declaration, that in consi-
deration of the defendant's guarantee, the plaintiffs sold and de-
livered to Berrett and Smithy goods to a large amount.

My opinion upon the whole is, that the judgment of the court
of common pleas be affirmed.

Yeates J. concurred.

Brackenridge J. was holding a court of nisi prius, during
the argument of this cause, and gave no opinion.

Judgment affirmed.

END OF MARCH TERM, 1809.

INDEX

TO THE

PRINCIPAL MATTERS.

ACKNOWLEDGMENT.
See Bakon and Feme, 2.

ACTION.
See Bond.

1. Letters of adininistralion granted un-
der seal in a sister state, are a suffi-
cient autliority to maintain an action
in this state. M<'uUou^'/i v. Y'ou7ig.

Paj,-e 63

2. In order to reach the estate of a de-
ceased partner, an action for a part-
nersliip debt lies against his executor,
jftiie Murvivin^; paitncrbea cerlifirated
bankrupt before action brought. Im>ii^
V. KepfieU. 123

3. (me partner cannot maintain assump-
sit ajjainst the other for the pioceeds
of a partnership adventure, unless
they have settled their accounts and
struck a balance. Ozian v. Johnson.

191

4. To stipport an action on tlie case for
damage occasioned by a conin)on nui-
sance, it is not necessary iliat the da-
mage sustained was iiiiiu'.diate; it
is sufficient if it was consequential.
Nng/te.i V. Hrifter. 463

ACTUAL SETTLEMENT.

1. Two years after the pacification by
General IVayne's treaty with tiie In-
dia?is, 13 a reasonable time for making
a settlement which has been prevent-
ed by the enemy. Lessee of Hazard v.
Lowrij. 166

^ The proviso in the 9th section of the
act of 3d J/iril 1792, which excuses a
settlement in case of prevention by the
enemy, also excuses a survey. 166

The want of an actual settlement
within two years from the pacification
with the Indians, cannot be set up
a,c;aiiist the title of a warrantee under
the act of 3d .l/iril 1792, by a person
who has taken wrongful possession of
the land, and before tlie expiration of
the two years has refused to deliver it
up to tlie warrantee. A bare refusal is
enough to estop the possessor, with-
out tlie tiireat or use of actual force.
Leasee of Palter son v. Cochran. 231

ADMINISTHATOR.

Sec Dehis. Judgment, 3.

I. Letters of administration granted un-
der seal in a sister state, arc a suffi-
cient aulliorily to niainlain an action
in this state. l^hCuHoin^h v. Younrr. f>'\

6:^0

INDEX.

-. An administrator is cliarpjcublc witli
interest, wlicrc he lias been j^uilty of
nes^lect in not pottiny; out tlie money
oltlie intestate, or has used it himself;
and it hes upon liim to shew what has
been done witli it. But lie is not liable
for interest until after twelve months
from the intestate's death. Fojc v. Mll-
ccck.^. I y.i.

3. Judgments obtained before a justice
of the peace when filed in the common
pleas or made known to the adminis-
trators must be paid by them /iro rata
with judi^ments in courts of record.
^cott V. Ram&aii. 221

AGENT.

•SVe Frauds and Peiuuuies, J.

If an agent indebted to his principal,
ships property to him on board a ves-
sel belonging to a third person, (al-
though bound to conform lo the
agent's orders) and the captain signs
a bill of lading deliverable to the prin-
cipal, the property thereupon vests in
the principal, and the agent cannot
countermand or disturb the shipment.
'Siunmcril v. Elder. 106

AGREEMENT.

^ee Amendment, 1. Fkauds and
Peujuries, 3.

1. If a forged check is credited as cash
in the holder's bank book, and after-
wards under a mistake of his rights,
he agrees that if the check is really a
forgery, it is no deposit, he is not
bound by the agreement. Ltvy v.
Bank of the United Htalcn. 27

2. A contract for the purchase and .sale
of lands in Pennnxjlvania under the
Connecticut title, is unlawful and void,
although the act of J/iril 1 1th 1795,
neither expressly says so, nor contains
any clause prohibitory of the contract,

but merely inilicts a penalty on the of-
fender. Mitc/irll w Sniil/i. 11 o

AMENDIVIENT.

1. If there is an agreement by attorneys
below to amend, amendment may be
made after error Ijrought, and without
costs. Jo/mnon v. ChaJJ'ant. 75

2. A hahcan cor/iiia to remove a cause
from the common pleas to the su-
preme court may be amended by the
/u-icci/ic; and may after verdict be sent
back to the common pleas for the pur-
pose of having the return amended by
that court. Bcnncr v. Freij. 366

3. Amendments are reducible to no cer-
tain rule. Each particular case must
be left to the sound discretion of the
court. Ikit the best principle seems to
be, that an amendment shall or shall
not be permitted, as it will best tend to
the furtherance of justice. 36y

4. After suit brought one of the defend-
ants dies, and judgment is entered
against both. Error is brought to a su-
perior court, where the writ is non-
prossed; and then upon error coram
vobifiy the death of one of the defend-
ants before judgment, assigned. A-
mendment permitted by entering a
suggestion of the death, with the same
effect as if it had been done before
judgment. Lenficc of IIUL v. Went.

486

5. A count charging man and wife upon
a joint assumption in consideration of
money iiad and received by them for
the plaintiff's use, cannot be amended
under the arbitration law of 21st
March 1806. (iranser v. Kckart. 575

3. Amendment of a declaration in ac-
count render permitted, by adding to
a count which charged the defendant's
testator as bailiff and receiver of the
plaintiff, a count charging him as bai-
liff Sec. of the plaintiff as surviving
Jiartner of y/., although the writ cor-
responded with the first count. Gratz
V. Fhillifis. 58S.

INDEX.

621

APPEAL.

1. The record of the procec'din£^s upon
an appeal from the circuit court, which
bv hiw is directed to be filed before the
next term, is in time, if fiied before
the court meets on the first day of the
next term. Vanlcar x.Vcirilcar. 76

2. The proceedings upon an appeal from
a justice of the peace, are not dc novo
in the common pleas; and therefore if
the justice exceeds his jurisdiction,
judti^ment in the common pleas may
be arrested. Aloorev. IVait. 219

3. An appeal does not lie from the board
of property to the common pleas, al-
though an act of assembly directs the
ofBcers of that board to do certain
things in case of an appeal. Comtno?!-
ivcalth V. Cochran. 324

4. On an appeal from a decision of the
circuit court, the supreme court is in
the same situation with the judge of
the circuit court, and may make the
same orders that he could. Kennedy v.
I.oturu. 393

APPEARANCE.

1 f an attorney enters his appearance ge-
nerally to a suit against two defcnd-
danls, one of whom only is summon-
ed, it is a good appearance for both.
M'CuUoiitfhv. (Jufliirr. 211

ASSIGNMENT.

See Set-off, 2.

1. On the same evening after a consi-
derable verdict is oblaincd agaiiiSt A,
he conveys all his properly to a trus-
tee of his own rlioice, lor the benefit
of all his creditors in equal propor-
tions. The trustee live* at a distance,
and does not hear of the deed initil
four days afterwards, when he assents.
No possession of the title deeds is

Vol. r. 4 K

given until nearly two months after,
and the debtor continues in possession
of the furniture and goods the next
day after tlie execution of the deed,
which was Sunday ■, and part of Mon-
day, when they were taken in execu-
tion. The deed contains no schedule
of property, and no limitation of time
for distributing the estate. JMd that it
is a valid assignment, and takes effect
from its execution, as the assent of
the trustee is presumed; delivery of
the title deeds is unnecessary, and
nondelivery of the goods is explained.
jrUt V. Franklin. ' 502

Although it is most prudent and pro-
per for tlie debtor to consult his credi-
tors as to the choice of a trustee, when
it can be done without great inconve-
nience, yet where there is no bankrupt
law existing, there is no law which
forl)ids tlie debtor to make the choice
himself. 502

A schedule is more necessary where
part of a debtor's property is conveyed
to particular creditors, than where the
whole is conveyed for the benefit of
all. The want of it is a circumstance
to be taken into consideration, but it
is not conclusive evidence of fraud.

.')02

ASSIZE OF NUISANCE.

An assize of nuisance cannot be remo-
ved from the common pleas to the su-
preme couit, by halwas corprm. Livc-
zey V. (jorgaa. '^'i 1

ASSUMPSIT.
See PaRTNKUs, 1

ATTAINDER.

See CrUTFSY.

622

INDEX.

ATTACiniKiNl', FOREIGN
Sec Set-oi"k, 1.

1. If the pjarnislit'c in a forcip;n attach-
nit.nt pay over to llie plainlilT the ckl)t
attached, without being; compelled by
due jirocess of law, and without re-
quiring tlie stipulation ordered by act
of assembly, it will not discharge him
from the original debt. Myers v. Ul-
rich. ' "25

2. Upon the plea of nulla bona to a ^cire
facius against a garnishee, the jury
must find tlie specific goods in the
garnishee's hands; a verdict finding
goods of a certain value in the de-
fendant's hands, is bad. But if they
find the goods, they may also find tiieir
value, to save the necessity of a special
inquest. Crawford v. Barry. 481

ATTORNEY.

1 . If an attorney enters his appearance
generally to a suit against two defend-
ants, one of whom only is summoned,
it is a good appearance for both.
iV/> Culloiigh V. Guetner. 2 1 4

2. The authority of the defendant's at
torney is competent to restore an ac-
tion after noji pros, without the con-
sent of his client. Reinholclt v. Albcrti.

469

BAILPIECE.

Where the bail has paid the debt due
by his principal, and tlie latter has
paid nothing, the court will not at the
instance of the principal, and against
the wish 0/ the bail, order an r.xone-
retur upon the l)ailpiece, before the
principal has been taiicn. Kctland v.
Medford. 4V7

BARGAIN AND SALE.

If a bargain and sale )-ccite a considera-
tion of money, and the jury find that

no money was paid, this part of tli<^
verdict goes for nothing. No avcr-
meiit can be made against such a rc«
cital. It'llt V. rrunklhi. 502

BANK CHECK.

'SVr Pavmknt, I.

BANKRUPT.

See Evidence, 6. 7.

. The proceedings of the commis-
sioners of bankrupt arcfmn/ied, with-
in the 5 1st section of the act o{ yijiril
4, 1800, when the commissioners
have proceeded on the commission,
examined the bankrupt, and other
witnesses, admitted the creditors to
prove their debts, and assigned the
bankrupt's estate. Rugan v. West. 263

. The preference given by the act of
March 1, 1799, to sureties in custom-
house bonds, is not taken away by
the bankrupt act. Chainjineys v. Lyle.

327

BARON AND FEME.
See Evidence, 1 1.

1 . The curtesy estate of the husband in
the lands of the wife is not forfeited
to the commonwealth for the life of
the husband by his attainder for trea-
son committed in her lifetime and
after issue born; but the wife's estate
is discharged from the curtesy. Leu-
sec of Pcnibcrton v. Hicks. 1

2. The courts oi Pennsylvania have no
authority to insist on a provision for
the wife, when (he husband applies
for her personal property. Yohe v.
Barnet. 358

3. A deed of the wife's land by the hus-
band and wife, who by a ceitificate
indor'^ed thereon, appeared before a

INDEX.

62-

judge ofthc common pleas, and " ac-
« knowledged the indenture to be
" their act and deed, and desired the
" same to be recorded, she being of
" lull age and by him examined
" apart," is not suflicicnt to pass
the wife's estate. Lessee of Watson v.
Bailey. 470

4. A count, charging man and wife upon
a joint assumption, in consideration ol
money had and received by them to
the plaintiff's use is bad. Grascer v
Eckart. 575

BILL OF EXCEPTIONS.

: . A bill of exceptions to the charge,
may l)c tendered at any thue before
the jury have delivered their verdict
in open court. Jones v. The Insurance
Com/iany of Nor ill America. o8

2. A bill of exceptions does not lie to the
opinion of the court, iii receiving or
rejecting testimony upon a motion for
summary relief. Hhortz v. (juit^leij.

222

.1. A bill of exceptions lies to the opi-
nion of the common pleas, upon the
trial of a feigned issue from the re-
gister's court. VauHunt v. Hoilcau. 444

HILL OF EXCHANGE.

Il sermn that the acceptor of a forged
bill is l)ound to pay it, not upon the
principle tliat iiis acceptance has
given a credit to the l)ill, l)iit because
it is his duty to know the drawer's
handwriiini;, which he is precluded
from disputing. Levy v. Jhmk of (he
United 'Slatrn. 27

HILL OF LADING.

if an agent indebted to his principal
ships properly to him on board a ves-
sel belonging to a third person, (al-
tho»igh bound to contorm to tlie
agcnl'i^orders,) and the captain signs

a bill of lading deliverable to the
principal, the property thereupon
vesis in the principal, and the agent
cannot countermand or disturb the
shipment. Summcrl v. Elder. 105

BLOCKADE.

A vessel sails from Charleston to Cadiz,
without any notice of its being in a
state of blockade, and wiihhi a short
distance of the pori is brought to by
the blockading squadron, and warn-
ed not to enter on account of the
blockade. The mate and four hands
are taken out of her, and an officer
and eight men put on bourd, with
orders to stay by the fleet. Ten days
afterwards the captain is taken out of
her, and carried to the adauv..! of the
fleet, who says to him, " We have
'' thought of setting you at liberty;
" and in case we do, what port will
" you proceed forr" The captain re-
plies, " in case I receive no new in-
" structions, I shall follow my old
" ones." " That I suppose will be for
" Cadiz." " Certainly, unless I have
" new orders." This is not an afte?n/it
to enter, and therefore no breach of
blockade. Qn. Whether any declara-
tion of an intention to enter, amounts
to an at(e/ii/:t. Calhoun v. T/ic Insu-
rance Company of Pennsylvania. 293

BOND.

Sec Pleading, \.

Where the condition of a bond is for the
payment of interest annually, and of
tin; piin(,ipal at a distant day. the in-
terest may be recovered bclore the
|)iin(i])al is due, iiy an action of debt
on the bond. Sjiurkes v. (iarrii^uts.

152

COMMISSION.
A joint commission issued to London,

624

INDEX

in v'hich the plaintiff named commis-
sioners, whose protession ami particu-
lar residence he set out; and the de-
fendant named merely ./. li. and C D.
*' of London^ The plaintiff's com-
missioners caused inquiries to he
made for those of the defendant, and
no such persons beint; found, they
executed the commission tx fuiric.
Hvld that the commission was avcU
executed. Pigo^ v. Holloivaij. 436

CONSPIRACY.

1. The law implies damage from a
conspiracy to accuse a person of an
ofience for which he is liable to in-
dictment and removal from office.
GriJ/ith v. Ogle. 172

"2. It seems, that in an action on the case
in the nature of a writ of conspiracy,
it is not necessary to declare, that the
conspiracy was \\'\\\\o\\i /irobable cause .
*' Falsely and maliciously" is enough.

i72

CONSTITUTION.

See Judiciary. Justice of the
Peace. Libel.

CONSUL.

See Jurisdiction.

COSTS.

See Amendment, 1.

1. Witnesses subpoenaed though not
examined, and examined though not
subpoenaed, are entitled to payment.
JJchennevilte v. Debenneville. 46

2. An award of costs is good, although
the principal sum reported by the re-
ferees, would not carry costs if found
by a jury. McLaughlin \. Scott. 61

3. If the plaintifi' levies by execution
costs to which he is not entitled, the
court will compel him l)y rule to re-
fund them, even after they have been
distributed by the sheriff". Harris v.
Fortune. 125

4. If a suit has been carried on for the
use of an assignee, the nominal plain-
tiff being insolvent, the court will
permit the defendant after verdict, to
suggest upon the docket the name
of the assignee, and will rule him to
pay the costs. Canhy v. Kidgivay. 496

5. In an action of debt discontinued after
the first court upon the defendant's
agreeing to pay costs, the plaintifi"'s
attorney is entitled tb the fee due in
actions ended after the first court and
before judgment, notwithstanding the
5th section of the act of March 21,
1806. Delaware Insurance Cornfiany
V. Gilpin. 501

6. Jurors not drawn by lot for the court
at which the issue is tried, but drawn
upon a former occasion, and continu-
ed over, are not entitled to pay from
the county, but from the losing party.
Sherer \. Hodgson. 535

7. The expense of a view is not charge-
able to the county, but must be paid
by the losing party. 53.)

COSTOMHOUSE BONDS.

See Bankrupt, 2.

CURTESY.

The curtesy estate of the husband in
the lands of the wife is not forfeited
to the commonwealth for the life of
the husband by his attainder for trea-
son committed in her lifetime and
after issue born; but the wife's estate
is discharged from the curtesy. Lch'
sec of Femberton v. Hicks. 1

INDEX.

62-

DAMAGE.

Hee Nuisance, 2.

. . riie law implies damas^e from a
conspiracy to accuse a person of an
oftence for which he is liable to in-
dictment and removal from office.
Griffith V. Oc^lc. 172.

2. Qu. Whether being refused admis-
sion into a church presbytery, is such
special danja^e as the law will take
notice of McMillan v. Birdi. 178

3. To suppoit an action on the case for
damage occasioned by a common
nuisance, it is immaterial whether
the damage be immediate or conse-
quential. Hutrfiea V. Heiatr. 463

DEBTS.

See Specialty. Set-off, I.

Debts due by a deceased person take
rank according to their quality at the
time of his death. Hcott v. licnnmy.

221

DEED.

See Assignment. Bakgain and Sale,
2. Baiion and Temk. I'^videnck, 4.

DEVISE.

1. A testator devises to his wife during
her widowhood, the front room in his
farm house, a cellar, and the common
use of the kitchen, oven and draw-
well, lie also gives her, in considera-
tion of her sch()oling and educating
the children, the profits of his farm
until his sons come of age to possess
it. He then orders his farm to be di-
vided into two paits, one of which he
gives to one son, reserving a privi-
lege of water lor the other part,
which he gives to another son, upon
their respectively coming of age, and
orders the; son who takes a certain

part, to keep a hoiist and cow for his
mother, and to c\it and lay firewood
at her door during her widowhood.
Held that the devises are not in bar
of dower in the farm. Webb v. Evans,

565

2. ^. devises all his real estate to his son
B. and his heirs lawfully begotten; and
in case of his death without such
issue, he orders C. his executors and
administrators to sell the real estate
within two years after the son's death;
and he bequeaths the proceeds there-
of to his brothers and sisters by name
and t/icir heirs forever, or such of
them as shall be livin'^ at the death
of the son, to be divided between
them in equal liro[iortions^ share and
share alike. All the brothers and lis-
ters die leaving issue, then C. dies,
and afterwards B. the son without
issue. Heirs is a word of limitation;
and none of the brothers and sisters
being alive at the death of B. the ob-
ject of the power to sell has failed,
their issue are not entitled, and a sale
by the executors of C. conveys no
title. Lessee oj' Smith v. FoIiih-U. 546

DISCONTINUANCE.

After an inquest has returned that the
rents and profits will pay in seven
years, the plaintifl' cannot discon-
tinue his Ji.fa. and take out a new
one, without leave of the court.
M^CuUouifh V. (iuetner. 214

DOMICIL.

1. A will of personal jjroperty must I)(
executed according to liie law of the
testator's domicil at the lime of his
death. If it is void by that law, it will
not pass personal pi-operty in a foreign
country, although it is executed with
all the formality prescribed by the law
of that country. Dcscsbatsw Berc/uier.

2. .\ man h/irima facie domiciled at the

'326

INDEX.

place \vhcrc he is resident at the
time of his death. Guier v. O'' Daniel.

■J. Domicil is a residence at a particidar
place acconipaiucd witli an intention
to continue it an unlimited time. 352

!■. A minor during pupilage cannot ac-
quire a domicil of his own; his domi-
cil therefore follows that of his father,
and remains until he acquires an-
other, which he cannot do until he
becomes a person sui juris. 352

DOWER.

i. A testator devises to his wife, during
her widowhood, the front room in his
farm house, a cellar, and the com-
mon use of the kitchen, oven and
drawwell; he also gives her, in con-
sideration of her schooling and well
educating the children, the profits of
his farm until his sons come of age
to possess it. He then orders his farm
to be divided into two parts, one of
which he gives to one son, reserving
a privilege of water for the other
pail, which he gives to another son,
upon their respectively coming of
age; and orders the son who takes a
certain p^rt, to keep a horse and cow
for the wife, and to cut and lay firewood
at her door during her widowhood.
Held that the devises are not in bar
of dower in the farm. Webb v. Evans.

5 65

;. At law it is settled that when tlic
husband dcs'i^QS generally to the Avife,
the sauie cannot be averred to be in
satisfaction of dower unless it is so
expressed. But cfjurty puts her to her
election, where there appears an evi-
dent intention to bar her, where
dower would disappoint the v.'ill, and
where the devises to her and her
dower, are inconsistent with each
other. 565

EJECTMENT,

'SVc MoHTGAGK.

EQUITY.

The equity decisions in England be-
fore tlie revolution, arc of authority
in lliis state; and as we have no court
of chancery, it has been the settled
practice of the supreme court, to
proceed upon them. Ebfrt v. H'ood.

217

ERROR.

A writ of error lies from the supreme
court to a judgment rendered by the
common pleas upon a verdict in a
feigned issue. Vansanl v. Boilcaii.

444

EVIDENCE.

1 . A protest made by the captain of a
vessel within twenty-four hours after
his arrival at his first port where
both the owner and insurer resided,
and without notice to the insurer,
is evidence in an action between
those parties, to shew that an occur-
rence at sea had made a deviation
necessary. Brown v. Girard, 40

2. In an action of slander the defendant
may give in evidence in mitigation of
damages, that a third person told
him what he related. Kennedy v. Gre-
gonj. 85

f). The return of a deputy surveyor is
merely firima faciit evidence of the
truth of the matter returned. Faulkner
v. The Lessee of Eddy. 188

4. A deed is not admissible in evidence
until at least a shadow of title is shewn
in the grantor. 188

5. If an original entry in a shop book
is in the handwriting of a clerk, it
must i)e proved l)y him before it can
be admitted in evidence, unless he is
dead, or out of the power of the court.
titerrctt v. Dull. 234

6. A commission of bankruptcy and as-
signment, are not conclusive evi-

INDEX.

627

dencc of the trading y.nd act of bank-
ruptcy, in an action ui" trover by the
assignees. Rugan v. U^est. 263

7. Certified copies of the proceedings
by the commissioners of bankrupt,
when finished, and filed in the district
court, are /irima facie evidence against
all persons, of the commission, trad-
ing, and act of bankruptcy. 263

8. Upon an indictment for stealing a
bill obligatory, evidence of the con-
tents of the instruments may be given,
without shewing notice to the de-
fendant to produce the original on tlic
trial. Connnonnveaith v. MessiJiger.

9. The sentence of a foreign court of
admiralty, condemning property as
prize, is conclusive, not only as to its
direct effects, but as to the facts di-
rectly decided by it. Dniifmey v. The
lunurance Comfiariij of Pcnnsyhmnia.

299

10. The articles of agreement betMecn
the proprietaries of Pennsylvania and
Maryland, settling the boundaries of
the two provinces, are evidence, with-
out being proved or acknowledged
according to the laws of Pennsylvania;
being in the light of a state paper
well known to the courts of justice.
Leasee of Koaa \. Cutahatl. 399

11. Parol declarations of the wife that
she executed a conveyance of her es-
tate voluntarily, and that if it was
insufticicnt, she would execute and
acknowledge it again, or do any other
act to make the deed good, are in-
admissible to supply a defective ac-
kriowlctlgmcnt. Leaaie of ll'ut&on v.
Bail.y. 470

12. An executor who is jjlaintin' in a
feigned issue to try the validity of the
■will, is not acom|)etent witness, being
liable for < osts. I'drmani v. lioileait.

444

13. The commander of a public armed
vessel which has made a prize, is a
good witness In a!i action by a seaman
against the prize agent, to reduce the

plaintift's share of prize money. Mzir-
rai^ \. Wilson. 531

14. Query. Whether a certificate by the
accountant of the navy department,
under the seal of that department, is
evidence. 531

15. Declarations made by a party at the
time of executing a written agree-
ment, are not evidence, if not com-
municated to the other party. IVullace
V. Baker. 610

1 6. A subcribing witness to a warrant of
attorney swore that from his minutes
he found he was at a certain place on
a certain day, being the day the war-
rant bore dale, and that upon reference
to the warrant he found his name in
his own handwriting as an attesting
witness, and that the seal appeared
to have been taken from an engraving
he then and still had, and from all
these circumstances he was convinced
that he ivas firesent and witnessed the
execution of the instrument . This is
sufficient proof of the warrant to go
to the jury. Pigot v. Hotloway. 436

EXECUTION.

After an inquest has returned that the
rents and proiits will pay in seven
years, the plaintiff cannot discontinue
his f. fa. and take out a new one,
without leave of the court. M'-Cul-
lough V. Guctner. 214

EXECUTOR.
See EviDKNCE, 12.

1. A jiower to y/ and his executors In
sell, may be executed by the executor
of .//'s executor. Leasee of Umilh v.
Folwe/l. 546

2. The bare appointment of an executor
IS /irima facie evidence that the resi-
due of the personal estate undisposed

62b

INDEX.

of by tlic vill. It. gnen to iurn I)cncfi-
cially. Grasscr v. Kckart. 575

. 'VVlicrc the residue of a testator's per-
sonal estate is not disposed of bv the
will, it is always a (jucstion of inten-
tion, whether the executors lake be-
neficially, or as trustees. 5 75

. A testator orders all his debts and fu-
neral expenses to be paid, and gives
his wife 700/, and the use of his real
estate, initil his only child, a son then
about five years old, shall be fifteen.
He gives his son 1 5/. a few specific
legacies, and all his real estate, and
then orders the residue of his per-
sonal estate, except a table and two
stoves, lo be aold by his executors at
public sale, as soon as may be after
his death, to the best advantage, and
makes his wife and two friends ex-
ecutors. They take as trustees for the
next of kin. 575

FEIGNED ISSUE.

1. A writ of error lies from the supreme
court to a judgment of the common
pleas upon a verdict in a feigned
issue. Vatisant v. Boileaii. 444

2. The court which tries the feigned
issue, and not the register's court,
has the right to order a new trial.

444

FOREIGN SENTENCE.
See Evidence, 9.

FORFEITURE.

Sec Curtesy.

FRAUDS AND PERJURIES.

i. A parol partition between tenants in
common, made by marking a line of
division on the ground, and followed

by a corresj)oiKiiiig separate posses-
siow, is good, notwithstanding the
act of frauds and pcijuries. lihcrt v.
Wood. 216

2. A parol gift of lands by a father to
his son, accompanied with ])ossession,
and followed by the son's making im-
provements on the land, is valid.
Lessee of Sylcr v. Kckart. 378

3. A parol contract for the sale of lands,
is good luuler the act of frauds and
perjuries, to support an action for
damages. So a written contract with
an agent who has merely a parol au-
thority. Knving v. Tees. 450

GARNISHEE.

1. If the garnishee in a foreign attach-
ment pay over to the plaintiil" the
debt attached, without being com-
pelled by due process of law, and
without requiring the stipulation or-
dered by act of assembly, it will not
discharge him from the original debt
Myers v. Urich. 25

2. Upon the plea of nulla bona by a
garnishee, the jury must find the
specific goods in his hands. A ver-
dict finding goods of a certain value
in his hands is bad. But if they find
the goods, they may also find their
value to save the necessity of a spe-
cial inquest. Cranvford v. Barry. 48 1

HABEAS CORPUS ACT.

The penalty for recommitting a person
who has been once delivered for the
same cause on a /lab-as cor/ius, is
limited to recommitments for the
same criminal offence., and is not in-
curred by taking the party a second
time in custody upon civil process.
Jfccker V. Jarreft. 374

IMPROVEMENT.
1 , An improvement made on lands not

INDEX.

629

iiurchased from the Indians, does not
Vest a title. Lessee of Kyle v. White.

246

i. An improvement and settlement on
lands purchu3«=;d from the Indians in
November 1768, made between that
date and the opening of the land office
on the 3d April 1769, give no pre-
ference to the settler against a des-
criptive application entered in the
land office on the day it opened. Les-
see of Buchanan v. Maclure. 385

INDICTMENT.

1 . An indictment for stealing two ten
dollar notes of the firesident, directors
and comfiany of the bank of the United
Statesy is bad. They should be laid to
be promissory notes for the payment
of money. The Cotnmonnvealth v. Hoy-
cr. 201

2. Query., Whether an indictment is bad
for laying bank notes, as the goods
and chattels of the prosecutor. 201

INNUENDO.

The office of an innuendo is to elucidate
•words, by connecting them with the
subject to which they refer, and aver-
ring a meaning not inconsistent with
or contradictory to them, but it can-
not alter their nature. ShciJ/'cr V. Kiiit-
zer. 537

INSOLVENT.

1. A petitioner for relief under the in-
solvent art of 'llh April, 17y8, must
exhibit to the court a statement in
ivritinfc of his losses, and tiie means
whereby he became insolvent. Jiu-
ker'a case. 462

.;'. A debtor who has no property what-
ever, is nevertheless entitled to the
benefit of the insolvent laws. 462

3. The IRth section of the insolvent law
of April 4th, 171)8, is intrnded to re-

VOL. I. 4 T.

lieve all persons in actual confine-
ment, whether inhabitants of this
state or not; but a nonresident debt-
or must apply for his discharge to
the court by whose process he is
confined. Croxall's case.

INSPECTORS OF THE PRISON
See Quo Warranto.

INSURANCE.
See Set-off, 3. EvIDE^'CE, 9.

1. In an action on a policy of insurance,
wherein the plaintiff declares for a
total loss, and pro^■es a captiu'c and
condemnation of the property which
he has never abandoned; the jury
may estimate the value of the sfies re-
C2i/ie7-andi, deduct it from the whole
sum insured, and find the remainder
as a partial loss. IVatson v. The Iji-
surance Comjiany of J\''orth America.

2. If a policy underwritten in Philadel-
l)hia contains a warranty of American
propctrty, " to be proved if required
" in this city and not elsewhere," the
assured is entitled to vindicate the
truth of his warranty not only against
a foreign condenuialion as enemies,
jiroperty, but against a condemnation
for any act or omission of his agents
during the voyage, by which the neu-
trality is alleged to have been for-
feited. Calhoun w The Insurarice Co7n-

fiany of Pennsylvania. 293

.■). An agreement by a lender on respon-
dentia, "• to be liable to average in the
" same manner as underwriters on a
*' policy f)f inM:ranrc according; to the
" usages and piaclices of the city of
*' Philadeliihia," does not entitle the
borrnwer to calculate an average loss
iipon the whole aniovmt of the money
loaned and the marine intci'esl, but
merely on the cost and charges ol
the goods on board, and the prcmitim

630

INDEX.

of insiinincc. Gibson \. The Philadel-
phia Insurance Cojufianij. 405

4. Upon an insurance on t^oocls, the un-
derwi'ilcrs arc not liable for fieit^ht
paid by ibe owner of the gootls dur-
ing the voyage. 405

5. The assignee of a policy of insurance,
takes it subject to all defalcations to
■which it was liable before the assign-
ment; and therefore in a suit by the
assignee the insurers may set oft" a
debt due by the assmed at the time
of the assignment, though it be an
open policy, and the claim for a par-
tial loss. Roussct V. The In.suranrr
ComJ:amj of A'orth America. 429

6. Upon an insurance " at and from" the
warranty of seaworthiness must be
referred to the commencement of the
risk; and if between that time and the
sailing of the vessel, she becomes un-
fit ibr sea without the fault of the
assured, and is afterwards lost, the
assured may recover. Garriguen v.
Coxe. 592

7. A policy on vessel contained a clause
that if " after a regular survey she
'< should be condemned for being un-
" sound or rotten, the underwriters
" should not be bound to pay their
*' subset iptions." The survey and con-
demnation, to come within the clause,
must shew unsoundness from decay,
and not from accident, as the eating
of rats. 592

3. A leak occasioned by rats without
the neglect of the captain, is a peril
within the policy. 592

INTEREST.

I. Where the condition of a bond is for
the payment of interest annually, and
the principid at a distant day, the in-
terest may be recovered before the
principal is due, in an action of debt
on the bond. But no interest can be
recovered upon such interest. S/iarku
V. Xiarrigues. 165

2. An administrator is chargeable willi
interest aher twelve months from the
intesiate's death, where he has been
guilty of neglect in not putting out
the money, or where he has used it
himself; and it lies upon him to shew
what has been done \\ith it. i'o^ v.
U'Ucocks. ' 194

3. It is now a settled rule that interest
is recoverable for money lent and ad-
vanced; and this rule applies to loans
made when the law was held to be
otherwise. Lessee of Dihvorth v. Sin-

dcriifig.

488

4. A trustee is entitled to interest for
advances made to supply the defici-
encies of the trust fund, although the
interest and advances nearly absorb
the equitable interest. 488

INTESTATE.
See Debts.

JOINTENANCY.

A mortgage executed by two out of
three jointenants is a severance of the
jointenancy. Lessee of Simpson, v, Am-
iiiOTis. 175

JUDGMENT.

1. If a verdict be found for plaintiff', and
doling the pendency of a motion in ar-
rest of judgnicnt the plaintiff' dies,
judgment may be entered as of a
term after the verdict when he was
alive. Griffith v. Ogle. 172

2. Judgments obtained before a justice
of the peace, when filed in the com-
mon pleas or made known to ad-
ministrators, must be paid pro rata
with judgments in courts of record.
Scott V. Rcnnsay. 221

3. Judgment may be arrested for an ob-
jection on the face of the record,
though it was not assigned at the time

INDEX.

631

of filing the motion, or of entering an
appeal. Grasscr v. Eckart. 575

JUDICIARY.

The supreme court has a right to pro-
nounce an act of the legislature to he
unconstitutional. Emerick v. Harris.

416

JURISDICTION.

A state court has no jurisdiction of a
suit against a consul; and whenever
this defect of jurisdiction is suggest-
ed, the court will quash the proceed-
ings; it is not necessary that i\ should
be by plea before general imparlance.
Mannhardt v. Soderslroni. 138

JUROR.

See Verdict.

Jurors not drawn by lot for the present
court, but drawn upon a Ibrnier oc-
casion and continued over, are not
enlilled lo i)ay from tlic county, l)Ut
from the losing party. H/icrcr v. Ilodg-
aon. 535

JURY.

. It is not necessary to entitle a party to
a special jury, that the utlorney sliould
ccriify that il is not intended for delay.
LcHStc of Nrjf V . Xrff. 350

. There is no time limited within which
a party must apply for a special jury.

JUSTICE OF THE I'EACE.

8ec Appeal, 1.

. A justice of the peace cannot enter
judgment upon a warrant of attorney.
He must proceed I)y warrant in tlie

nature of a summons or capias. Alber-
tij V. Dawson. 105

2. The record of a judgment by a jus-
tice of the peace still remains before
him, and may be the foundation of a
scire facias, after a transcript has been
filed in the common pleas. Drian v.
Suijder. 381

3. The act of 19th .^Jiril 1794, called the
20/. law, giving jurisdiction to justices
of the peace in certain cases not ex-
ceeding 20/. is not unconstitutional.
E771 crick v. Harris. 416

LANDLORD AND TENANT.

1. Notice to quit at the end of a certain
year, is not waived by tbe landlord's
permitting the tenant to remain in
possesion an entire year after the ex-
piration of the notice. Boggs v. Black.

333

2. The notice to quit required by the
landlord and tenant law, must be given
tliree months before the end of the
term. Broivn v. I'uJihorn. 334

LAND OFFICE.

1. Tlic act of 22d .'1/iril 1794, which
prohibits the land oflice from receiving
applications for certain lands after the
date, does not prevent an alteration of
the names of former applicants, lundk-
nrr v. The Lessee of Eddy. 1 88

2. An appeal does not lie from the board
of property to the common pleas, al-
ihougli an act of assemljly directs the
officers of that board to do certain
tliin^;s in case of an ajjpeal. The only
way of coiUestiiig tlieir decision, is by
an action between the parties in the
ordin.iry way. Tlir Conimomuralih v.
Cochran , "24

LARCENY.

Under the act of 5lh J/iril 1790, whicli
declares that larceny of bills ohligato-

532

INDEX.

ry shall be punished in the same man-
ner as larceny of any goods or chat-
tels, tl)c t'elonious taking, Sec. of one
bill obligatory, is punishable as a lar-
ceny. The Commonwealth v. JMcsshi-
ger. 273

LIBEL.

The act of assembly of 16th March 1809,
which enacts that no person shall be
subject to prosecution by indictment
for the publication of papers exami-
ning the proceedings of the legisla-
ture or any brancli of the govenmient,
or for investigating the official conduct
of officers or men in pubhc capacity,
is not unconstitutional. Commonwealth
V. Duane. 60 1

LIEN.
5'ee Trustee, I.

LIMITATIONS, ACT OF.

A debt which is barred by the act of li-
mitations, is not revived by a clause in
a will, ordering all the testator's just
debts to be paid. Smith v. Porter. 209

MISTAKE.
See Agreement, 1.

MORTGAGE.

See Join TENANCY.

The assignee of the administrators of a
mortgagee may maintain an ejectment
in his own name. Lesnee of Simpson
V. Ammons. 175

NEW TRIAL.

See Practice, 1 1.

!. The day on wliich the verdict is given,
is computed as one of the four days

which are allowed to move for a new

trial. Lane v. Shreiner. 292

2. Qiicfre whether in any civil case the
court will grant a new trial where
there has been no motion within the
four days. Ewing v. Tecs. 450

NOTICE TO QUIT.

1 . Notice to quit at the end of a certaui'
year, is not waived by the landlord';*
permitting the tenant to remain in
possession an entire year after the ex-
piration of the notice. Boggs v. Black.

333

2. The notice to quit, required by the
landlord and tenant law, must be
given three months before the end of
the term. Brown v. Vanhorn. 334

NUISANCE.

, To support an action on the case for
damage occasioned by a common nui-
sance, it is not necessary that the da-
mage sustained should have been di-
rect, it is enough if it was consequen-
tial. Hughes V. Hciser. 463

. The plaintiff declared that he had
prepared rafts, with intent to navigate
them down a river, which was a pub-
lic highway; and that he did navigate
them, until he came to a dam erected
by the defendant, by which he was
prevented from passing down the ri-
ver with his rafts. This is a sufficient
special damage to support an action.

ib.

OFFICE.

One who has an authority to appoint to
a pul)lic office, cannot appoint himself.
The Commonwealth v. Douglass. 77

OFFICIAL BOND.

The party who; first brings suit upon art
official bond is entitled to priority »f

INDEX.

65S

payment, although he is prevented
from obtaining judgment by an order
to stay proceedings, upon the defend-
ant's paying the amount of the bond
into court. All subsequent suitors to
the same term are entitled t^ro rata;
but if instead of suing they apply to
the court to come in under the first
suit, priority of application will entitle
them to priority of payment. M^Kcaii
V. a/iannon. 370

ORPHAN'S COURT.

1. The orphan's court may if necessary
direct an issue, to settle a disputed
fact. Yo/ie v. Barnct. 358

2. A. obtain^ judgment against B. his
son in law, and then dies intestate
seised of real estate, and leaving seve-
ral children, among whom is the wife
of H. The real estate is divided into
fewer parts than there are children,
and they are allotted accordingly un-
der the direction of the law, that a
bond shall be given by those who take
the land to the other children, li.'s
wife among the number, for their res-
pective purparts. 13. is insolvent, and
liis debt to A. unpaid. The orphan's
court may order B.'s debt to be de-
ducted from the amount of tiie bond
for his wife's part. ih.

PAROL AGRl'lEMENT.
Srr Ehauds and Pkhjihiks, I. 2. .".

PARTNEHS.

I. In order to rcacli the estate of a de-
ceased partner, an action for a part-
nership debt lies against liis execuior
if the surviving partner be a rerlifica-
icd bankrupt before action brought.
JMTlg V. Kcjijiclf. 1~3

One partner cannot maintain assump-
sit against the otlier, for the proceeds
of a partnership adventure, unless

they have settled their accounts and
struck a balance. Ozeas v. Johnson.

191

PAYMENT.

Sr-e Pleading, 1.2.

The entry of a check as cash, made in
the private bankbook of the holder, is
equivalent to payment ; and if the
check is a forgery, of which the hold-
er was ignorant, the bank must sup-
port the loss. Levy v. The Bank of
the United States. 27

PENALTY.
See Pleading, I.

1 . Where a penalty has for its end to in-
sure the performance of the principal
obligation, it does not destroy it. Canal
Comfmnxj v. Sansom. 70

2. A penalty inflicted by an act of as-
sembly for the doing a particular
thing, implies a prohibition of that
thing. Mitchell v. Smith. 110

PLEADING.

1. Where a defendant pleads payment to
an action of debt on a bond, and at-
tempts to defeat the bond by giving
eviflence of fraud, or want of consifle-
ration, but makes no set-off, the plea
is not under the defalcation act, but is
allowed under the equity powers of
the court, to give the defendant an
equitable defence; and therefore if he
fails, the judgUKiit shall be entered for
the penalty. S/iarku v. (iarrit^urs. 152

2. Under the plea of payment to a scire
facias to revive a judgment, the de-
fendant may give in evidence that
when he executed the bond and war-
rant, upon which the judgment was
confessed, the plaintifT promised to

634.

INDEX.

cancel it upon an event which has oc-
curred since the judgment. Ilartzctl
V. Rtiss. 289

3. It seems, that in an action on the case
in tl\e nature of u writ of conspiracy,
it is not necessary to declare that tlie
conspiracy was without probable cause;
*' falsely and maliciously, is enough."
Griffith V. Ogle. 172

4. A count charginp^ man and wife upon
a joint assumption, in consideration of
money had and received by them to
the plaintiff's use, is bad. Grosser v.
Eckart. 575

5. In slander the declaration is good,
though it charge that the defendant
spoke certain words in substaiice as
folloivs, &c. Kennedy v. JLoivry. 393

POLICY.

See Set-off, 2. 3.

POUNDAGE.

If the sheriff, with the money raised by
an execution upon land, pays off mort-
gages or judgments which had a lien
prior to the judgment under which the
sale was made, he is entitled to pound-
age upon the amount so paid, tliougli
it should exceed the real debt in the
execution. Petty v. Beauvarlet. 07

PRACTICE.

1. A preference must be asked for the
commonwealth causes, upon tlie first
day of the jury period. Commonivcalth
V. Pascalis. 57

2. The court will not permit a rule of re-
ference to be struck off, after there
has been a meeting of the referees,
and the parties have proceeded before
them in the controversy; notwithstand-
ing since the meeting, one of the par-
ties is dead, and his representatives

have been substituted. Ruston v. Dun-

woody. 42

3. A cause in which the commonwealth
IS interested, is not entitled to a pre-
ference, unless it is asked by the com-
monwealth. Turnbull v. T/ic Comvioti-
wealth. 45

4. A rule to shew cause of action is well
served upon the plaintiff's attorney.
Hulcheson v. Johnson. 59

5. The affidavit of a party may lay a
ground for a rule to shew cause, but it
cannot be heard upon the argument on
the rule. Hoarv. Mulvey. 145

6. If to debt on a bond the defendant
pleads payment, and attempts to de-
feat the bond by giving evidence of
fraud, want of consideration, &c. but
fails, and makes no set-off, judgment
shall be entered for the penalty, with
leave to take out execution in the first
instance, for as much as was due at the
commencement of the action. For
payments accruing afterwards, the
plaintiff must move the court for exe-
cution, when the defendant may make
any defence other than that which has
been tried, and arising subsequent to
the suit. -S/iarks V Garrigues. 152

7. It is not necessary to entitle a party
to a special jury, that the attorney
should certify that it is not intended
for delay. Lessee ofMff\. JVeff. 350.

8. If the judgment of a justice of the
peace is affirmed in the common pleas,
for want of exceptions in time agree-
ably to the rules of that court, the su-
preme court will not hear objections
to it. Dubosq V. The Guardians of the
Poor. 415

9. Judgment may be arrested for an er-
ror on the face of the record, although
it was not assigned at the time of filing
the motion, or of entering an appeal.
Grassrr v. Eckart. 575

10. The court will hear more than two
counsel of a side, where there are
other parties than those on the record,
who have agreed to be bound by the
court's decision. Frazer v. Tunis. 255.

INDEX.

635

11. The rule of court requiring ten days'
notice in im-king before the next term,
of an intended motion for a new trial
in a cause tried at nisi /inusy applies
to causes tried at nisi firiua in the
county of P/iiiadti/i/iia. Henry v. Ken-
nedy. 45 8

12. A variance between the writ and
count is inuiuiterial by the practice
\n Pennsyhmnia. Jennings w Cox. 588

PRIVILEGE.

A party while attending an appeal from
the court of another county to the
supreme court, is privileged from
the service of a summons. Miles v.
M'-CulLough. 77

PROSECUTION.

An act of assembly directs that " from
" and after the passing of the act no
" person shall be subject to prosecu-
" tion by indictment," for a particular
ofleiice. Held that it puts an end to a
prosecution commenced and carried
to conviction before the passing of tlie
act, but in which no judgment had
been pronounced. Cojnnionnveali/i v.
Tiiianr. 601

PROTEST.
•Vtr Evidence, 1.

QUO WARRANTO.

An act of assembly vests tlic appoint-
ment of inspectors of tlic prison in
the mayor and two aldermen of the
rity, and two justices of the county of
Philudiifihiuy and directs it to be ex-
ercised on a certain day. At) api)oint-
ment n)adc in a chindestine maiuier,
alter a refusal by the mayor to make
known to certain aldermen and jus-
• ices the hour and place at which such

appointment would be made, is not
such an exercise of the mayor's dis-
cretion as the law will warrant, and
the court will give leave to file an in-
formation in the nature of a quo ivar-
ranto against the inspectors so ap-
pointed. The Covimonwealtfi v. Doug-
lass. 77

REFEREES.
See Practice, 2. Costs, 2.

1. A report of referees may without
consent of parties be sentsback to the
same referees, for the purpose of cor-
recting informality. Lessee of Snyder
v. Hoffman. 43

2. Exceptions to a report of referees
must point out some plain mistake in
fact oi- in law, otherwise the court
will not investigate the merits of the
report. Lower Dublin School v. Paul.

3. Part of a report of referees may be
confirmed and the residue set aside.
Rut the court cannot strike out a part.
IVoglam V. Burnes, 109

4. To entitle a party to demand of refe-
rees an allowance of time to produce
testimony, he must shew them what
it is, why he is not able then to pro-
duce it, and that he expects to obtain
it in a reasonable time. Latinur v.
Pidgc. 458

5. If the oath directed by the act of 2l3t
March, 1806, to be administered to
referees, is dispensed with by the par-
lies, there is no necessity that their
award sliotild be under seal. Cra/iam
V. Iluviilcon. '161

REGULATION OE LOTS.

The regulation of a lot by regulators
under the act of '.)th IVIarcli, 1771,
from which no appeal is entered to
the next common pleas, is conclu-
sive AS to the foundations and partv

65(5

mDEX.

■walls of buildings erected confovm-
ably thereto, but not so us to the linos
of the lot on which there arc no build-
ings. (Jodshatl V. Aluriam. 352

RELATION.

1. A survey under a renewed warrant
issued from the iand office of Mary-
Jand in 1762, if the land is the same
called for by a warrant before 4th
July, 1760, relates to the time of the
original warrant. Lessee of Boss v.
CutshaLL 399

2. An assignment to a trustee for the
benefit of all the creditors of the as-
signor, not made known to the trus-
tee until four days after its execution,
when he accepts, takes effect from its
date. The acceptance of the trustee
is presumed until his refusal ap-
pears. IVilt V Franklin. 502

RENEWED WARRANT.
See Survey, 6.

RESPONDENTIA.

See Insurance, 3.

SALE.
See Sheriff, 1.

SCIRE FACIAS.

The record of a judgment by a justice
of the peace still remains before him,
and may be the foundation of a. saVfyn-
cias after a transcript has been filed
in the common pleas, Drurn v. Sny-
der. 381

SET-OFF.

See Orphan's Court, 2.

1. A. is indebted to B. and C. partners in
trade, who issue a foreign attachment
a<;ainst his effects in the hands of D.

.'/f/rr the death of B. and C. the exe-
cutors of C. who was surviving part-
ner obtain judgment against the de-
fendant and the garnishee. B. and C
were the indorsers of a note which
was discounted by D. and which fell
due after their death, and was pro-
tested for nonpayment. The debt to
D. by B. and ('. cannot be set off
against the debt due by D. as gar-
nishee of A. to C.'s executors. A.'s
debt upon the death of B. and C. be-
came vested in their creditors gene-
rally, whose rights canil6t be changed
by any subsequent proceedings be-
tween the executors and garnishee.
CraJHond v. The Bank of the United
States. 64

. The assignee of a policy of insurance,
takes it subject to all defalcations to
which it Avas liable before the assign-
ment. Roiisset V. The Insurance Com-
pany of J^orth America. 429

. In a suit by the assignee of a policy
of insurance, the insurers may set off
a debt due by the assignor at the time
of effecting the policy though it be
an open policy and the claim for a
partial loss. 429

SHERIFF.

1. The sheriff cannot make a lumping
sale of distinct parcels of property
which he has taken in execution. He
should sell them distinctly. Ronvteyv.
Bronvn. 61

2. If the sheriff with the money raised
by an execution on land, pays off
mortgages or judgments Avhich had a
lien prior to the judgment under
which the sale was made, he is enti-
tled to poundage upon the amount so
paid, though it exceed the real debt in
the execution. Petry v. Bcauvarlet.

3. In an action against the shenff for the
misconduct of his officer in the exe-
cution gf A writ, it is not necessary to

INDEX.

537

shew a particular warrant to the offi-
cer, this is nccessury only in the case
of a bailifl"; but in Penrisylvania there
are no bailiffs, their place being sup-
plied by deputies whose authority is
suflicientiy shewn, by proof of a ge-
neral privity with the sheriff'. Ha-
zard V. larael. 240

■i. The sheriff" is answerable for the mis-
conduct of his deputy, whether he re-
cognises and adopts his acts or not.

240

5. A jury may give exemplary damages
against a sheriff for the misconduct
of his deputy. 240

6. If a deputy sheriff" enters the house
of an administrator to look for goods
of the intestate, and afterwards pro-
ceeds to levy upon the goods of the
administrator from whom nothing is
due, he is a trespasser ah initio.

240

7. Where the sherifflevies upon goods
in the defendant's possession, the
court will not stay proceedings and
direct an issue to try the properly,
upon an allegation that the goods be-
long to a third person. Insurance Com-
/lany of Pennsylvania v. Ketlancl. 499

SLANDER.

1 . In an action of slander, the defendant
may give in evidence, in mitigation
of damages, that a third person told
him what he related. Kennedy v. Gre-

f^ory.

2. In slander the declaration is good,
though it charge that the defendant
spoke certain words in mthHtanee an
folloiva cJ'c. Kennrdu v. Lov^ry. 393

■>. To call a clergyman a dnmkard is
actionable M'-Miltan v. Jiirrh. 17K

4. Words spoken I)y the (kfendaiit of
and to the pliiintiff lieforc a clnirrh
presbytery, in I lie course of his de-
fence against charges there brought
against hin) by the pli^inliff') ^re not
actionable, if he did not wander de-

VoL. I. 4 M

signed! y from the point in question,
for the purpose of uttering them.

178

5 . To say of a man " he has sworn false"
is not actionable, the colloquium be-
ing of an extrajudicial affidavit before
a justice of the peace. Shaffer \'. Kint-
zer. 5 37

6. Words laid in the second person are
supported by evidence that they were
spoken in the third. Tracy v. Ilarkins.

395

SPECIALTY.

A claim against an intestate's estate for
damages on account of the breach of
articles of agreement under seal, is a
debt Ijy specialty within the meaning
of the 14th section of the act of
19th April 1794, Fruzer y. Tunis.

254

SURETY.

The surety in a customhouse bond is
entitled to priority of payment out of
a bankrui)t's estate for both principal
and interest of the sum paid by him
to the United States. ChanijinciiH v.
Lisle. 327

SURETY OF GOOD BEHAVIOUR.

1. The supreme court has no authority
to moderate or remit a recognisance
of good behaviour that is forfeited by
an act out of court. Commonwealth v.
Daviex. 97

2. It is most agreeable to the sjjirit of
the constitution, to adopt it as a gene-
ral rule not to demand surety of
goofl behaviour before conviction.
Coni/mmwealth v. DuaJie. 102

SURVEY.

I. It Is not essential to the validity of a
survey of a bodv of lands, that the

G38

INDEX.

lines of each tract should be marked
on the ground. It is sufficient if the
surveyor has marked lines enoutjh to
identify the particular tracts. Woods
V. Ingersoll. 146

2. The proviso in the 9th section of the
act of 3d April 1792, which excuses a
settlement in case of prevention by
the enemy, also excuses a survey.
Lessee of Hazard \. Loiury. 166

". If a survey has been duly made under
lej^al authority, and the land surveyed
remains open to purchasers, a war-
rant comini^ aftcrivurds to the hands
of the deputy, may be applied by him
to the survey already made, without
runnincj and marking the lines anew.
Lessee of JSblihea v, Plummcr. 227

4. A survey on what is called a nhifcd
location^ is good against a person who
had notice of it before the com-
mencement of his title, even tliough
the survey was not returned. Lessee
of Kyle v. White. 246

5. It is no objection to a survey made
before the year 1767, on lands pur-
chased from the Indians in 1754,
tha; 5 62 acres were surveyed upon
two warrants for 100 acres each. 246

6. A survey under a renewed warrant
issued from the land office of Mary-
land in 1762, if the land surveyed is
the same called for by a w-arrant be-

frie 4th of July 1760, relates to the
time of the original warrant, and is
protected by the agreement between
the proprietaries. Lessee of Ross v.
Cut shall. ' 399

SURVEYOR.
See Evidence, 3.

Unless the surveyor marks all the lines
of i-ach tract, in a body of lands, he is
noi entitled to the full compensation
given by law. Woods v. Jn^ersoll.

146

TIME.

l.The record of the proceedings upon
an appeal from the circuit court,
which by law is directed to be filed
bifore the next tern), is in time if
filed liefore the court meets on the
first day of the next term. Vanlcar v.
Vanlear. 76

2. Two years after the pacification by
General Wayne's treaty with the In-
dians, is a reasonable time for mak-
ing a settlement, which has been
prevented by the enemy. Lessee of

Hazard \. Lowry. 166

3. The day on which the verdict is

given, is computed as one of the
foiri days which are allowed to move
for a new trial. Latie v. Shreincr. 292

TRESPASS.

If a deputy sheriff enters the house of
an administrator to look for goods of
the intestate, and afterwards proceeds
to levy upon the goods of the admin-
istrator from whom nothing is due,
he is a trespasser ab initio. Hazard v.
Israel. 240

TRUST. I

A trust estate in Pennsylvania descends
in case of intestacy to the heir at
common law. Lessee ofJenks v. Baek-
house. 9 1

TRUSTEE.

5ce Executor, 3. 4.

1 A. as agent for B. and to secure a
debt due to him, takes a mortgage of
real estate in his own name from the
debtor, and then obtains a release
of the equity of redemption. A. re-
tains the title deeds, and B. receives
the rents and profits. Afterwards A.
lends his notes to B. and finally takes

INDEX.

639

them up, shortly after which B. is
declured a bankrupt. ^'5 assignees
cannot recover the premises from j1.
until they reimburse him the amount
so paid for B. Lessee of Frazer v.
Hallowell. 126

2. A trustee is entitled to interest upon
advances for the use oi cestui i/ue trust
to supply the deficiency of the fund.
He is also entitled to an allowance
for depreciated paper money, paid
him during the war for rent of the
trust estate, and for expenses incurred
in erecting proper and necessary
buildings upon it, although the cestui
que trust w as not consulted. Lessee of
Dilxvorth v. Sviderling. 488

VENIRE DE NOVO.

1. On the reversal of a judgment of the
common pleas upon a bill of excep-
tions to evidence, the supreme court
may award a ve?nre de novo. Uterrett
V. Bull. 238

2. Entire damages assessed upon sever-
al counts in slander, one of which is
bad. Judgment reversed and venire
dc novo awarded. Shaffer v. Kintzer.

537

VERDICT.
If a juror is struck from the special

jury list, and then sworn as a tales-
man with the knowledge of the party
who struck him off, he cannot on
that account object to the verdict.
Jordan v, J\Ieredith. 27

VIEW.

See Costs, 7.

WILL

See ExKcuTOR, 4,

A will of personal property must be
executed according to the law of the
testator's domicil at the time of his
death. Desesbats v. Berquier. 336

WITNESS.

See Costs, 1. Evidence, 16.

A party may call as many witnesses as
he thinks necessary to make out his
case; the court will not interfere, un-
less he is guilty of oppression. Deben-
nevitle V. Debenneville. 46

WORDS.
See Slander, 3. 4. .t.

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