THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW REPORTS OF CASES ADJUDGED IN THE <: SUPREME COURT OF 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 B 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. D Dallas, Woods v. DavieSi Commonwealth v. l)aws(m V. Alhertv, Deljcnnevllle v. Dchenncville, Delaware Insurance Company v. Gilpin, . . - I) 296 293 70 496 134 75 327 324 231 201 324 97 77 98 601 273 97 37 45 588 592 64 481 589 399 146 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 H 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. XI Johnson v. ChafFant, - 75 Hutchtson V, - 59 Jones I'. Insurance Company of North America, - - 38 Jordan v. Prleredith, - 27 K 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 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, N Neff's Lessee v. Neff, North, Commonwealth v. O G* Daniel^ Gider v. Ogle, Griffith v. Ozeas V. Johnson, 219 90 145 531 25 350 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 Q Quigley, Shortz v. - - R 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, S Sansom, Canal Company v. Schreiner, Lane v. - Scot, M'J^aughlin v. 222 221 469 289 458 496 440 399 429 61 263 42 70 292 63 xn 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, U Urich, Myers v. 450 395 254 45 Vanhorne, Broivn v. - 334 Vanlear v. Vanlear, - - 76 Vanlcar v. Vanlear^ - 447 Vansant v. Boileau, - 444 W 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 OF 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 "<' 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. V. 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. 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 I 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^ T 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 . 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. 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. (c) C(fxp. 494. (/) 2 H. Bl. 200 lb 38 8s t217 3 48 13 387 53 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. 4U 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 V. GiRARD. 4 o 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 V. 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. T 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 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. 53 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 11 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. (c) SD.isTE. 493. (/) 7 D.i:; E. 360. OF PENNSYLVANIA. 69 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. it (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. ( 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 ' " _> 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 o. 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 &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 M 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\« '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 N 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(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 , 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 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. lb 106 24 525 26 89 53 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 V. 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. (c) 4 £urr. 2046. (/) 3 I). iS" E. 119. 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'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. V. 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 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. ( 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 I 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. lb 162 lOs 101 Jw (-•1 Iw (!i Iw (13, Iv, 6*' 4 300 34 212 34 213 44 75 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 (c) 1 Stra. 51.5. (i') (5 D »r E. 396. S. P (t/).1 Burr. 13rO 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•. 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//*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 V. 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. (c) 2 //. Bl. 531. ff ) ^T) is; E. 693 (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- (c) 1 Dall. 423 ( f) 2 Cainte, 296. 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 s a.c) 2 'v4or> 2w4(J«; iwsGdS 6 91 71 123 tt 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.. 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 OF 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 nar 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.- 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. (c) Cffufi. 548. (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 2s r yv 2s 39 If 347 ■ 3pw 74 3pw 78 12 115 60 266 214, 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 ( 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 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 (. («/) 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?. ^ 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 V. ■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. (. 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 V, 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 nv 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) Cat. Tcmf: // ' 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};: , , 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 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. (c) Pari. 365. (h) I D. iSf £■ 127- (./) 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. (c) Cartlt. 225. (/■)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 tlarriintcd 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 wj 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,. 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; o 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. ticib, 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^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, 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.} 36 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 ay 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. 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''.if voyiige fVom Phlladtlphiat at wliicli time it is proha- hle 1)e ohlainee 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 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. (c) AD.iSf E. 123. ig) 1 Vern. SI'S, (f/) 2 Atr- IQ5. 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 . (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''"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, 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*" 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* 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/////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«///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. V. 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. c 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 T. 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 V. 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 Ge 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- u 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\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." 3 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 Hughes " U) 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 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;) 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\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. ( 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' '"" 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 V. 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^ «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. (c) 3 P JVtru. 414. (/) Pol'/cxf. 44 552 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 (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 7 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»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. //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 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. AN 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. 47 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. 59 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. 97 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. 85 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. ilfi r^.^L'T^l^RM REGIONAL LIBRARY FACILITY AA 000 592 850 2