THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW FACULTY LIBBAJNf REPORTS CASES ADJUDGED IN THE SUPREME COURT PENNSYLVANIA. BY HORACE BINNEY. VOL. VI. TO WHICH 18 ADDED, A GENERAL TABLE OF CASES. PHILADELPHIA: PHILIP H. NICKLIX, LAW BOOKSELLER, No. 175, CHESTNUT STREET. PRINTED BY WILLIAM FRY, 1823. 45 Eastern District of Pennsy Irania, to wit: .***.*.. B g [T KEMEMBF.RED, that on the eighth day of August, in * SEAL. t ne forty -seventh yeai 1 of the independence of the United States of !****.! America, A. D. 18'22, Horace Binnev, of the saiO Disti'ict, hath de- posited in this office the title <>t a Book, the right whereof he claims as author,, in the words following, to wit: "Reports of Cases adjudged in the Supreme Court of Pennsylvania. By Horace Bianey. Vol. VI. Second edition, to which is added, a general Table of Cases." D. C A LOWELL, Clerk of the Eastern District of Pennsylvania. JUDGES OF THE SUPREME COURT OF PENNSYLVANIA. WILLIAM TILGHMAN, Esq. Chief Justice. JASPER YEATES, Esq. > Justices. HUGH H. BRACKENRIDGE, Esq. ATTORNEY GENERAL, JARED INGERSOLL, Esq. 778504 TABLE OF THE CASES. ADAMS v. Thomas, . . 254 Alexander, Commonwealth v. 176 B Bailey v. Fairplay, Lessee of Watson, .... 450 Barker, Meyer v. . . . 228 Baxter v. Smith, . . . 427 Benn, Cahill v. ... 99 Biddis v. James, . . . 321 Blackburn v. Markle, . .174 Bowman, Enslin v. . . 462 Boyles v. Johnston's Execu- tors, . ... 125 Brand, Shaller v. . . . 435 Breidenbach, Haak v. .12 Bringhurst v. Cuthbert, . . 398 Broome, Sparhawk v. . . 256 Brown v. Scheaffer, . .177 Burd, M'Dowell v. . . 198 Burr, Wilkins v. 389 Butler, Cavence v. . 52 Cahill v. Benn, ... 99 Callan, Commonwealth v. . 255 Campbell v. Lessee of Gratz, . 115 Campbell, Irvine v. . .118 Case of Shamokin Road, . . 36 Caufman v. Presbyterian Con- gregation of Cedar Spring, . 59 Cavence v. Butler, ... 52 Charaberlin, Richter v. . .34 Clark v. Israel, . . .391 Clarke v. Patterson, . .128 Clements, Commonwealth v. . 206 Cochran, Commonwealth v. . 456 Colhoun v. Snider, . .135 Commonwealth v. Commission- ers of Lancaster County, . 5 Commonwealth, Young v. . 88 v. Alexander, 176 White v. .179 v. Edwards, . 202 v. Clements, . 206 V. Holloway, . 213 v. Cornish, . 249 v. Callan, . 255 v. Lewis, . 266 v. Shepherd, . 283 v. Wolbert, . 292 v. Commission- ers of Philadelphia County, 397 Commonwealth v. Immell, . 403 Eaton v. . 447 v. Cochran, . 456 Cooper v. Henderson, . .189 Cornish, Commonwealth v. . 249 VI TABLE OF THE CASES. Curwen, M'Clenachan v. . 509 Cuthbert, Bringhurst v. . . 398 D Douglass, Ilgenfritz v. . 402 Drum v. Lessee of Simpson, . 478 Duffield v. Smith, . . .302 Duncan v. Forrer, . . .193 E Eaton v. Commonwealth, . 447 Edwards, Commonwealth v. . 202 Enslin v. Bowman, . . 462 Etwein, Rundle v. . . .136 Evans, Smith v. 102 F. Fairplaj, Lessee of Watson, Bailey v 450 Felmly, Werdman v. .39 Forrer, Duncan v. . . . 193 Fox, Grubbv. . . .460 French v. Reed . . .308 G Garrigues v. Reynolds, . . 330 Girard v. Heyl, . . . 253 Gratz, Lessee of, Campbell v. 115 Grubb v. Fox, . . .460 H Haak v. Breidenbach, . . 12 Haine, Heckert v. ... 16 Hamilton Lessee of, v. Marsden 45 Hantz v. Sealy, . . . 405 Harris v. Hayes, . . . 422 Hart, Wakely v. . 316 Hayes, Harris v. 422 Heckert v. Haine, ... 16 Henderson Lessee of, Rickets v. 133 Henderson, Cooper v. . .189 Heyl, Girard v. 253 Holloway, Commonwealth v. . 213 Homer, Wenberg v. . . 307 Huber, Shearick v. 2 Hyde, Longenecker v. . I Ilgenfritz v. Douglass, , . 402 linmell, Commonwealth v. . 403 Insurance Company of North America, Kohnev. . . 219 Insurance Company of North America, Schwartz v. . . 378 Irish v. Scovil, ... 55 Irvine v. Campbell, . .118 Israel, Clark v. . . .391 James, Biddis v. 321 Johnston, Thompson v. . .68 Johnston v. Tait, . . . 121 Johnston's Executors, Boyles v. 125 K Keister, Santee v. . . . 36 Kohne v. Insurance Company of North America, . . . 219 Kreitzer, Shaeffer v. . . 430 Lamberton, Sanderson v. .129 Lessee of Hamilton v. Marsden, 45 of Gratz, Campbell v. . 115 of Rickets v. Henderson, 133 of Whitman, Stoever v. 416 of Watson, (Fairplay,) Bailey v. . . 450 of Simpson, Drum v. . 478 of Snyder v. Snyder, . 483 of Sweitzer v. Meese, 500 Lewis, Commonwealth v. . 266 TABLE OP THE CASES. Vll Litle v. Toland, . . .83 Longenecker T. Hyde, . 1 M M'Allister v. Marshall, . 338 M'Clenachan v. Curwen, . 509 M'Dowell v. Burd, . . 198 Markle, Blackburn v. . . 174 Marsden, Lessee of Hamilton v. 45 Marshall, M'Allister v. . 338 Martin, Smith v. -. . . 262 Massej v. Thomas, . . 333 Masteller v . Trhnbly, . . 33 Meese Lessee of, Sweitzer -v. 500 Meyer v. Barker, . . 228 Milne v. Moreton, . . . 353 Moirison -v, Semple, . . 94 Moreton, Milne v. . . 353 Moulson v . Rees, ... 32 N Nichols, Obermyer -v . . . 159 Norton, Witman v. . . 395 Obermyer v. Nichols, . 159 Patterson, Clarke v. . . 128 Paul v. Vankirk, . . .123 Presbyterian Congregation of Cedar Spring, Cautman v. . 59 R Reed, French v. 308 Rees, Moulson v. , .32 Reynolds, Garrigues v. . . 330 Richter v. Chauiberlin, . . 34 Rickets Lessee of, v. Hender- son, .... Road (Shamokin) Case of, Rundle v. Etwein, Russel v. Skipwith, . . S Sailer^ Zerger v. .24 Sanderson v. Lamberton, 129 Santee v. Keister, . 36 Scheatfer, Brown v. . . 177 Schwartz -v. Insurance Compa- ny of North America, . 378 Scovil, Irish v. ... 55 Sealy, Hantz v. 405 Semple, Morrison v. . .94 Shaeffer v. Kreitzer, . . 430 Shaller v. Brand, . . . 435 Shamokin Road, Case of, . 36 Shearick v. Huber, . . 2 Shepherd, Commonwealth v. . 283 Simpson Lessee of, Drum v. . 478 Skipwith, Russel v. . . 241 Smith T>. Evans, . . .102 Smith v. Martin, . . . 262 Smith, Duffield v. . . . 302 Smith, Baxter v. . . . 427 Snider, Colhoun v. . . 135 Snyder Lessee of, v. Sny- der, 483 Sparhawk v. Broome, . . 256 Stoever v. Lessee of Whitman-, 416 Sweitzer Lessee of, v. Meese, 500 Tait, Johnston v. . . . 121 Thomas, Adams -v. . . 254 Thomas, Massey v. . . 333 Thompson v. Johnston, . . 68 Toland, Litle v. . . .83 Trimbly, Masteller v. . .S3 Vankirk, Paul v. 123 W Wakely v Hart, . . .316 Wenberg v. Homer, .' . 307 Vlll TABLE OF THE CASES. Werdman v. Felmly, . . 39 White v. Commonwealth, . 179 Witman v. Norton, . . 395 Whitman Lessee of, Stoever v. 416 Wilkins v. Burr, . . .389 Wolbert, Commonwealth v. . ' 292 Young v. Commonwealth, . 88 Zerger f . Sailer. . 24 CASES IN THE SUPREME COURT OF PENNSYLVANIA. Lancaster District. May Term, 1818. LONGENECKER and another against HYDE. Lancaster, IN ERROR. ^ ur t y > May 22. 'TPHIS was a writ of er ror tothe Common Pleas of Lan- The letter of a A caster county, in which Court the plaintiffs brought an g^JJJ hThad action upon the case against the defendant, for having received certain fraudulently and falsely represented a certain F. Eckstein JJJJal^jSfc. as a man of property, integrity, Sec. with a view to induce tiff to sell upon the plaintiffs to trade with him. The declaration averred ^^ n c ' e is of that the plaintiffs, who were distillers, did in consequence that fact in a suit of such false representation send three hogsheads of gmj^gjlj^ to Eckstein to be sold on commission, and that in conse- to recover dam- quence of his insolvency, they suffered loss, &c. fSy ^.^ sented the wri- Upon the trial of the cause, the plaintiffs, having proved ^b^amwfcT that the defendant recommended Eckstein as a man of pro- property, and perty, See. offered in evidence, to prove the delivery of the 1 " 16 ^ 11 ^' gin to Eckstein, a letter from him to them, acknowledging the receipt of three hogsheads, the day before, which he promised to account forj but upon the defendant's objection the court overruled the evidence, and whether the Common Pleas were right was the question. Hopkins for the plaintiffs in error. Montgomery contra* TILGHMAN C. J. The rule of law is, that no witness is to be heard but upon oath. The confession of a party is in- VOL. VI. A CASES IN THE SUPREME COURT 1813. deed evidence without oath, because in its nature nothing v. HYDE. LONGENECK- can be more satisfactory. But Eckstein was no party to the ER et al. su j t) nor was he the agent of the defendant, or in any man- ner connected with him. To admit his assertions then with- out oath, would lead to dangerous consequences. Collusions might easily be formed between plaintiffs and their wit- nesses, who might easily be induced to make declarations in letters, which they would be afraid to verify on oath in open court. The defendant had a right to the oath of Eck- stein, and the opportunity of cross-examining him in pub- lic. There is nothing in the case to take it out of the ge- neral rule. I am therefore of opinion that the Court of Common Pleas was right in rejecting the evidence, and that judgment should be affirmed. YEATES J. was prevented by sickness from sitting dur- ing this term. BRACKENRIDGE J. was of the same opinion* Judgment affirmed. Lancaster, Saturday, May 22. Replevin lies against the She- riff's vendee, to recover the pos- session of chat- tels wrongfully taken in execu- tion and sold. SHEARICK against HUBER. IN ERROR. THIS was an action of replevin brought to September 1806, by Huber the plaintiff below against Shearick, for a quantity of wheat, which had been levied on by virtue of an execution issued at the suit of Peter Sailer against Henry Lutz, and sold by the sheriff to Shearick. Huber claimed under a bill of sale from Lutz prior to the execu- tion ; and the wheat had been sold by the sheriff while grow- ing, and was taken by Huber from the ground, after it was reaped. After the action had been depending a considerable time in the Common Pleas of Dauphin county, and put at issue, the defendant in December 1807 moved the court to quash the replevin ; but the motion was rejected, and the judg- ment of the court on that point was the error now assigned. OF PENNSYLVANIA. Laird and C. Smith for the plaintiff in error, argued that the case was within the act of 3d April 1779, by which all writs of replevin granted for any owner of goods levied or taken in execution by any sheriff, are irregular, erroneous and void, and may at any time after the service be quashed upon motion by the court to which they are returnable; 1 Smith's Laws, 470; that the sheriffs vendee stood in the sheriffs place, and was included within the protection of the act; and that as in case of a reversal of a judgment, there was no restitution of goods sold under execution, ac- cording to Hoe's case (a), and Manning's case (), so by analogy, if a replevin could not prevent the sale and deli- very to the purchaser, no error in the proceeding should justify its being used to unravel the sale. The owner's re- medy was trespass against the sheriff. Elder and Hop&ins contra. 1. The motion was out of time, because the party by pleading waived his right to quash. 2 Dall. 142. 1 Browne's Rep. 95. 2. The object of the Act of 1779 was to prevent any hindrance to the sheriff in the execution of the writ; not to prevent the legality of the sale from being subsequently questioned, in any and every mode which the injured party might adopt in the case of a private wrong. Trespass and trover lie every where both against the sheriff and his vendee, if the execu- tion has been levied on goods not belonging to the defen- dant. 1 Bay. 317. Shaw v. Tunbridge (c), Bloxham, v. Olden ( HUHER. 1813. sembly passed 3d April 1779. The preamble recites that SHKARIOK writs of replevin had of late been granted for goods " taken " in execution, and for fines and penalties legally incurred " and due to this commonwealth, to the delay of public jus- " tice, and to the great vexation of the officers concerned *' in taking and levying the same." It is then enacted that all writs of replevin granted or issued for any owner of goods, &c. " levied, seized or taken in execution^ or by dis- " tress or otherwise" by any sheriff, constable, collector of taxes, or other officer, acting in their several offices, under the authority of the state, are irregular^ erroneous and void t and that all such writs may and shall at any time after ser- vice be quashed upon motion, by the Court to which they are returnable, &c. No judgment can be executed if the defendant or any other person is permitted to take the goods out of the hands of the sheriff, after they are taken in execution. The sheriff is commanded by the writ of Ji fa. to make the money of the goods of the defendant, and bring it into Court. But he cannot make the money if the goods are not in his possession. There is no doubt therefore, but that the Court issuing the writ might by its own authority prevent the defendant in the action from impeding the execution by a replevin. Whether a third person whose goods were seized when in the possession of the defendant, might be also pre- vented, is a question which it is unnecessary to decide, as the act of assembly certainly comprehends the case. The object of the act was to provide for the complete execution of the writ. No person whatever can obstruct the sheriff's sale by a replevin. The goods are in the custody of the law, and there they are to remain till the sheriff has sold them and delivered the possession to the purchaser. That being done, the object of the law is accomplished, and every man who has claims, is left to his usual remedy. There is no intima- tion in any part of the act, that the sheriff can transfer to the purchaser a better right than the' defendant possessed ; and it would have been most unjust if there had, for there can be no reason why one man's goods should be applied without his consent to the payment of the debts of another. It is not questioned but that the person who claims the goods may support an action of trover against the sheriff's OF PENNSYLVANIA, vendee. Why then may he not maintain a replevin? What 1813. advantage is it to the defendant to be protected against a SHEARICK replevin, while he is left open to other actions? On the v. other hand, it may be of use to the plaintiff to have a re- HUBER. medy for the specific restitution of goods on which he may set a great value for causes peculiar to himself. Family pic- tures, and many articles of furniture of little value in them- selves, may be inestimable to the person who claims them. Upon the whole I am of opinion that inasmuch as the re- plevin in this case was not issued until after the sheriff had completely executed his office, it did not come within the scope of the act of assembly, and the Court was right in re- fusing to quash it. The judgment should therefore be affirmed. BRACKENRIDGE J. concurred. Judgment affirmed. 6b 5 3sr562 2wh293 X) 505 O The Commonwealth ex relat. WITHER againstThe Commissioners of Lancaster County. N the 17th of this month, C. Smith on behalf of Air a- Saturday,' ham Witmer, obtained a rule on the commissioners of ^hl Supreme Lancaster county, to shew cause why a mandamus should not Court ma y IS ? ue J * , a mandamus in issue against them, to compel them to make out an order any of the Dis- on the treasurer of the said county in favour of Witmer 58,444 dollars 44 cents, the amount of the valuation . . prohibits that stone bridge over the river Conestoga. Courtfromtrying issues of fact ia Bank ; because as The commissioners shewed for cause a variety of mat- the return to the ..... . rr., . mandamus must ters, two only of which it is material to state. 1. That this be received as Court had no jurisdiction, the writ of mandamus being in its nature an original action, which could only issue from a ction for a false ........ i ,. return which may a Court having original jurisdiction) and this court had be brought ia some other court, the Supreme Court may proceed to the end of the mandamus, without trying any fact. A mandamus is not a civil case within the 19th section of the act of 24th February, 1806, the in- tent of that section being, to take away the original jurisdiction in civil actions, of which the infe- rior Courts had jurisdiction, and not to take it away in cases of mandamus and the like, of which those Courts had no jurisdiction. The Court will not grant a mandamus to the County Commissioners to draw an order upon the treasury, if there is no money in the treasury to pay it. 6 CASES IN THE SUPREME COURT 1813. no original jurisdiction of any civil case in this district, nor COMMON- cou ^ ** tr y tne issue of fact which might grow out of the WEALTH return. 2. That the treasurer had not in his hands any sum v. of counted money equal to the sum for which the order was COMMISSION- d> ERS OF LANCASTER _ . . COUNTY. ^* ^ mit ^ an " Hopkins for the relator. Rogers and Duncan contra. TILGHMAN C. J. A rule having been granted on the commissioners of Lancaster county, to shew cause why a mandamus should not issue, commanding them to draw an order on the treasurer of the said county, in favour of Abraham Witmer 1 for 58,444 dollars 44 cents the amount of the valuation of the stone bridge over the river Conestoga, the commissioners appeared, and shewed cause upon which we are now to decide. On the 22d September 1787", an act of assembly was passed, authorizing Abraham W'ttmer to build a bridge over the Conestoga, and vesting the property thereof, when built, in the said Abraham Witmer his heirs and assigns forever, with permission to take toll at the rate fixed by the said act. But the legislature reserved a power when- ever it should seem expedient to them to make the said bridge a free bridge, to appoint three persons commissioners on the part of the Commonwealth, in conjunction with three others to be appointed by the said Abraham Wi tmer his heirs or assigns, who or any four or more of whom should estimate " what sum or sums of money the said Abraham " Witmer his heirs or assigns should be entitled to receive, " as a compensation for his trouble and expenses in building " and maintaining the said bridge, which sum or sums " should be paid to him or them out of the treasury of the " Commonwealth" On the 4th April 1798, a supplement to this act was passed. The preamble recites that Abraham Witmer had represented to the legislature, that the bridge erected by him by virtue of the original act, having been built without a view to the turnpike road which was after- wards established, was not constructed of materials suffi- ciently durable, nor calculated to sustain the heavy burthens which were daily passing, and had praye d the legislature OF PENNSYLVANIA. 7 to pass a law to authorize him to erect a bridge over the 1813. said creek, upon that permanent and extensive plan, which ""COMMON- the importance of the situation required. It is then enacted WEALTH that the said Abraham Witmer his heirs and assigns may v - build support and maintain a permanent bridge over the COMMISSION ' said creek, on any unoccupied part of the great road lead- LANCASTER ing from Philadelphia to Lancaster immediately above and COUNTY. on the north side of his present bridge, and to take toll at the same rates as were established by the original act. The fifth section provides that whenever the legislature should deem it expedient to make the said bridge a free bridge, three commissioners should be appointed by the legislature and three by the said Abraham Witmer his heirs or assigns, who or any four or more of whom should estimate " what sum or sums of money the said Abraham Witmer " his heirs or assigns should be entitled to have and receive "for his right and title in and to the said bridge, which sum ** or sums so estimated should be paid to him or them out 44 of the treasury of the Common-wealth^ On the 2d April 1811, an act was passed giving to the commissioners of Lan- caster county 10,418 dollars 34 cents, part of a debt due to the Commonwealth from the estate of William Henry, to be applied towards payment for Abraham Witmer's bridge. On the 17th January 1812, the commissioners of Lancaster county represented to the legislature, that a great majority of the county wished for a free bridge, that they had applied to Abraham Witmer who refused to deal with them, alleg- ing that they had no authority to purchase. On the 27th March 1812, an act was passed, " to purchase and make free u the bridge over the river Conestoga built by Abraham Wit- u mer in the county of Lancaster" By this act three commis- sioners were named on the part of the Commonwealth, who in conjunction with three others to be named by Abraham Witmer (not being citizens of Lancaster county) were to estimate on oath " the sum or sums the said Abraham Wit- " mer his heirs or assigns should be entitled to receive ac- '* cording to the true intent and meaning of an act passed " 22d September 1 787, and a supplement passed the 4th April " 1798, for the stone bridge across the Conestoga river, built " and owned by the said Witmer." The commissioners appointed by this act, having been notified by the commia- 8 CASES IN THE SUPREME COURT 1813. sioners of Lancaster county, were to fix on a time and place V. ~ of meeting, notice of which was to be given to Abraham WEALTH Witmer. If four or more of these commissioners could not v. agree, the governor was to appoint a seventh person, and COMMISSION- tne sum awar d e d by a majority of these was to be paid to LANCASTER ^ e sai< * -Abraham Witmer his heirs or assigns " out of the COUNTY. *' treasury of Lancaster county, by warrant drawn by the " commissioners of said county thereon." If Abraham Wit- mer should refuse to receive the compensation awarded by the commissioners, for ten days after tender thereof made to him by the county commissioners, he was to be debarred of the right of taking toll. If the sum awarded exceeded 1O, 418 dollars 34 cents, then the commissioners of Lancaster county after having- paid the whole sum awarded, were authorized to receive toll until they should be reimbursed the amount of what they had paid over and above the said 1O,418 dollars 34 cents, after which the said bridge was to be free. Abraham Witmer having received notice from the commissioners of Lancaster county, named three commissioners on his part. The first commissioners met and made an award that the sum of 58,444 dollars 44 cents should be paid to Abraham Wit- mer. The commissioners of Lancaster county have refused to draw an order for this sum, and Abraham Witmer now applies for a mandamus to compel them. Many objections are made to the issuing of this writ. The first goes to the jurisdiction of this Court, and is founded on an act passed 24th February 1806, by the nineteenth section of which it is enacted, that " the Supreme Court shall "have no original Jurisdiction in civil cases." Taking these words in their greatest possible extent, they might compre- hend a mandamus, for it is an original writ applied as a remedy in a civil case. But to construe words in their largest sense, is not always to attain the intent of the legis- lature. At the time this law was passed, the Supreme Court were overwhelmed with business arising from civil actions commenced in the city and county of Philadelphia. Before the year 1786, no such actions were commenced in this Court, and it was judged proper to place its jurisdiction on the same footing that it formerly stood. This could pro- duce no injury to the public, because the Common Pleas had jurisdiction of all actions which were forbidden to be OF PENNSYLVANIA. 9 commenced in the Supreme Court. But it would have been 1813. productive of very ill consequences to take from the Su- COMMON- preme Court their jurisdiction in cases of mandamus and WEALTH other writs of like nature, because the Common Pleas had v ' no right to issue them, and thus there would have been a Tt * * f 1 ERS Or defect of justice on important occasions. By civil cases then L ANO ASTER is to be understood civil actions, which in common parlance COUNTY. do not comprehend writs of mandamus, certiorari, habeas corpus, &c. This was the construction put upon the act im- mediately after its passage and ever since. The jurisdiction has been repeatedly exercised and never before questioned. And upon one occasion it was expressly recognized by a resolution of the legislature, in which they directed that the Attorney General should appear in a case of mandamus, and support the right of the Commonwealth to a tract of land called the mammoth farm in Luzerne county. I have thought it proper to speak explicitly on the construction of the 19th section of the act of 24th February 18O6, al- though that section is repealed by the 5th section of the act of 20th March 1810. It has been urged further against issuing writs of man- damus, that this Court have no power to try an issue in fact out of the county of Philadelphia. This is true, and upon that principle the Court refused to grant an information in nature of quo warranto in the case of the Commonwealth v. Smith at Pittsburgh. But the case of mandamus is different from quo warranto. We may proceed to the end of it with- out trying any fact. The return to the first mandamus must be received as true, until it shall be proved false in an action for a false return, which may be brought in some other Court. If it contains matter sufficient to prevent a pe- remptory mandamus, the matter ends there for the present ; if not, a peremptory mandamus issues. Considering the objection to our jurisdiction then as groundless, we must examine the cause shown against the exercise of it in this particular case. We are called on to issue a mandamus, to compel the commissioners of Lan~ caster county to draw an order on the treasury for the sum of 58,444 dollars 44 cents. The commissioners say they ought not to draw the order, because there is not money in the trea- sury sufficient to answer it. No doubt they speak the truth, VOL. VI. B 10 CASES IN THE SUPREME COURT 1813. and it appears to be cause insurmountable against issuing the COMMON- w " u Whether the commissioners have done wrong in not WEALTH taking measures to have the money placed in the treasury, v. is not now the question. If they have, we have no right to COMMISSION- pun j s j, them in this way. What would it signify to draw an EH.S OK LANCASTER or ^ er on an em Pty treasury? The treasurer would refuse pay- COUNTY. ment, and there the matter would end. We know very well that no money can come into the treasury but by a tax on the county ', and that tax the commissioners cannot lay without the co-operation of other persons, even supposing that the act for the purchase of the bridge, authorizes the laying of a tax for the purpose of paying Mr. Witmer. If Mr. Wit- mer^s object be attainable by way of mandamus, the first step must be to order the proper persons to lay a tax ; and it must be laid for the whole sum at once, for the act for the purchase of the bridge makes no provision for partial pay- ments. There can be no apportionment of the toll ; Witmer is entitled to take it all until he receives payment of the whole sum awarded. In short the payment of so large a sum does not seem to have been an event contemplated by the legis- lature ; and whether this Court would think itself justified in compelling the county to raise it, without an act of assembly explicitly directing it, is a point on which I have not made up my mind. I recommend it to the serious consideration however, of Mr. Witmer and his counsel, before another application is made to this Court. There are other impor- tant points which have been well discussed on the argu- ment by the counsel on both sides, on which I deem it premature, at the present moment, to intimate any opinion. C' BRACKENRIDGE J. No subordinate Court under the judicial system of this state ever had any power to issue a writ of mandamus. This King's Bench power is in the Supreme Court alone. The act of the legislature taking away the original jurisdiction of the Supreme Court, can respect only those powers which the subordinate Courts could exercise. With regard to these, the Supreme Court may or may not have original power as the legislature may from time to time direct ; and in doing which they are not to be understood, of speaking as those powers which were never in any Court else to exercise. They are to be consi- OF PENNSYLVANIA. 11 dered as having a reference to the jurisdiction of the Su- 1813. preme Court, where by removal, appeal, or writ of error, COMMON- they have cognizance, or may have it specially given to WEALIH them in extraordinary cases, as co-ordinate with the Courts v. of inferior jurisdiction. The term original, or appellate, or COMMISSION- of revision, has no relation to a province in which the LANCASTER Supreme Court alone ever had power. If under the term COUNTY. original these high powers stiled prerogative are taken away as is alleged, are they given in the first instance to the subordinate Courts ? This not being the case, it must have been the intention of the legislature, according to a contrary construction, to annihilate all such powers in the judicial authority any where. This unless by express words can never be supposed to have been intended. I must there- fore be of opinion that this Court, notwithstanding any seeming implication or general term in the act of assembly, retains its usual jurisdiction in these pre-eminent cases which no other Court can exercise. But an objection made to the exercise of this power in the present case, is, that as in the case of a writ de quo warranto, so here they may be stopped by the traverse of a fact, which from the present constitution of the Court, they have not the power to try. But in the exercise of the jurisdiction by mandamus, in contemplation of law no fact can be traversed, but the return must be taken as true. An action may lie for a false return, but not on an issue to be directed by them ; so that there is nothing in this objection. A second occurs which has relation to the common law, and takes away the remedy in this particular case. It is that the party applying for the mandamus has another re- medy. It would seem to me that he has by his own act^ and without application to the law ; which is by keeping posses- sion of his property, and he may sue the commissioners for damages for the trouble they have given him. This sup- poses that he may bring a suit against the commissioners even on the award itself to compel the performance of it. In this therefore he has another remedy. But to what pur- pose will it be for him to bring a suit, where the interested are judges ? Such remedy maybe considered as none. He is in no worse situation however than others are who have to do with commissioners, and this has never been given as an 1813. COMMON- WEALTH v. COMMISSION ERS OF LANCASTER COUNTY. CASES IN THE SUPREME COURT answer to all who have a right of action, and might with equal reason apply to this Court for their extraordinary in- terposition. But supposing this to be the case, with regard to which, I will acknowledge that under the special circum- stances I have not the most decided opinion, the issuing a mandamus is discretionary in the Court ; and it would seem from the cause shewn by the commissioners, taking it to be true, the principle of estimation of the sum awarded is not correct, and according to the stipulations of the contract. It is not th f fee simple right in the bridge that is to be pur- chased^ but a privilege that is to be redeemed on paying the expense and trouble in constructing it ; and that would seem to be what it cost at the time of erecting it, taking the superintendance into view, making an allowance also for the depreciation of the current medium for the present time. If the real value of money now is to the nominal as one to two, then give double of what the bridge cost at the time it was built. But the highest toll of the bridge in any one year, and such a principal as would produce the interest, would seem to be an incorrect ratio of estimation. There is there- fore a bar to the discretion of the Court in issuing a man- damus, and the carrying this award into effect. I am there- fore of opinion to refuse the writ. Rule discharged. HA AK against BREIDENB ACH and another, executors of BREIDENBACH. Lancaster, Saturday, IN ERROR. May 29. Short pleas are rpi HIS was a writ of error to the Common Pleas of admissible only by consent. If either * Dauphin COUnty. adversaryTodraw ^ was argued f u % in this Court, upon a variety of points up his plea at on which no opinion was given. All that is material in the I A rjr c H n ( 1 lie r c ~ fuses' it is good case will be collected from the opinion of the Chief Justice. cause of special de Tiie7ffice of a Goodwin and Duncan for the plaintiff in error. ttilicet is to ren- der something Elder and Hopkins contra. more certain, which was expressed in doubtful or general terms before. Tf instead of doing that, it contradicts or destroys whut went before, it must be rejected altogether ; e.g. an award that defendant shall pay law. in two years, scilicet in yearly payments of 30/. each, is to pay the whole sum in two years. To debt upon an arbitration bond, the defendants pleaded no award and a recovery by the plain- tiff OF PENNSYLVANIA. 13 TILGHMAN C. J. This suit was commenced in the Court 1813. of Common Pleas of Dauphin county, by Philip Breiden- HAAK bach against Michael Haak. The original plaintiff died after v. the commencement of the suit, and the now plaintiffs his BREIDEN * BACH executors were substituted in his place by virtue of an act et a j of assembly providing for such cases. The pleadings are entered in short minutes, and I have found less difficulty tiff for the same in deciding the cause, than in understanding the record, action/The a ward which is confused to an extraordinary degree. It is an ac- * e * " 1 was of the tion of debt on an arbitration bond, dated 4th August 1786. 178 : and on the The defendant pleaded; 1. No award. 2. That the tors had misbehaved themselves in making the award. denct ! of reco- f very in a former 3. Recovery by the plaintiffs for the same cause in another suit, in which the ' .1 r> f r> TI /-declaration stated action on the case, m the Court or Common Pleas of tne same case, to Dauphin county. To the first plea the plaintiff replied an**' fjJjj^JJ award which was set forth in haec verba^ and assigned for mill, erected on breach that the defendant had not paid the sum of 120/. men- 1735, an d c'cmti- tioned in the award. To the second plea the plaintiff replied n " ed to , the .^L November 1788. that the arbitrators had not misbehaved themselves, and to the The Court below third plea he replied, "that there was no recovery for the same cause." It is then stated in the record that there were plaintiff from now giving evidence to "issues, and rule for trial. I presume from the judge's shew, that upon charge that issue was also joined on the plea of payment, ease* gave no with leave to give the special matter in evidence. It has evidence of da- . . . . mage done during always been the desire of this Court to support the judg- so much of the ments of the inferior Courts, which have been given after x,? r as 'was co- trial of the merits. In order to accomplish this, we consi- vered , b J'. the r award, viz. from der the short entries of pleadings in the same light, as if they loth of Jiugutt were formally drawn up, provided there is enough to shew^,^, s 17 86 the meaning o the parties. In the present case it is hard to an(J a . c cortiingiy permitted him to say whether the plea of a former recovery, &c. was intended give such evi- to be tried by Court or jury. In fact it seems to have been ^me time they tried by both, first by the jury and afterwards. by the Court. ]? oul ; l , not I i )ermit * . *- ne defendants Both tribunals however agreed in deciding against the plea, to shew that in rfi j- i i i i the former suit, Ihe matter in dispute between the parties, is the damage the plaintiff gave done to the plaintiffs bv the erection of a dam by the de- e"iienceofda- r -^ J mages sustained fendant on his own land, in consequence of which a stream of during the whole iii-i n i term laid in the water was thrown back in such a manner as to overflow the N m r, Held, that plaintiff's land, and injure his bark mill and spring, &c. A this waser <-. former action had been brought, in which the plaintiff com- plained of the damage done by the erection of the dam on CASES IN THE SUPREME COURT 181;}. HAAK v. BREIDEN- BAOH et al. the 10th day of August 1785, and the continuance of it until the 3d November 1788. The arbitration bond was founded on the same dispute. The defendant alleges, that the arbitrators gave damages for the same nuisance down to the 4th August 1786, so that the plaintiff if he succeeds in this action, will recover damages twice for the continu- ance of the nuisance from the 10th August 1785, to the 4th August 1786. The president of the Court of Common Pleas seems to have thought that this was the real point of dispute, and this he submitted to the jury as a matter of fact ; for the Court suffered the defendant to give in evidence, the record of the former action under his plea of payment. The charge of the president is entered at large in the mi- nutes, and that part which appears to me most material, for the decision of this cause, is in substance as follows. " It is " contended for the plaintiff that the suit of November 1788, "was not for the original matter which was determined by "the arbitrators, but for only a continuance of the nuisance " subsequently to the award, and for the damages sustained " by the plaintiffs after the date of it j that although the de- " duration states the erection of the nuisance on the 10th "August 1785, and the continuance of it from that period " to the time of purchasing the writ, yet that the actual claim " of the plaintiff, and the verdict rendered by the jury, did not " include damages for any injury sustained, previously to the " date of the award. We are decidedly of opinion, that, not- " withstanding the time stated in the declaration, the plaintiff " was at full liberty to give evidence of damages done during " part of the time laid, and the plaintiff's counsel contend "that in that case the plaintiff did give evidence of damages 41 sustained for a period, which did not overreach the date " of the award. If this were the case, of which you are to judge "from the facts adduced in testimony, then the plaintiff has "not received payment or satisfaction for any part of his "demand, and you will render a verdict for the amount " awarded, with interest from the date of it to this time." It appears clearly from this part of the charge, that the jury were left to decide from the facts given in evidence ; and it also appears, that when the defendant offered evi- dence to prove that in the former suit, the plaintiff gave evidence of damage sustained during the whole time laid in OF PENNSYLVANIA. 15 the declaration, and that the verdict was given accordingly, the Court rejected the evidence ; so that the plaintiff was permitted to give evidence on the same point on which the defendant's evidence was refused. This cannot be right. Either the record was the only admissible evidence of the proceedings in the former suit, or it was not. If it was, neither plaintiff nor defendant should have been permit- ted to go out of it. But at all events, what was permitted to one should have been permitted to the other. This alone is reason sufficient for reversing the judgment and ordering a venire de nova. It was said by the defendant's counsel on the argument, that the plaintiff gave no evidence to shew the time for which he recovered in the former suit. But I cannot reconcile this with the charge of the Court. There was another part of the president's charge complained of by the defendant. He gave his opinion that when the arbi- trators awarded that the defendant should pay 12O/. in two years, viz. in yearly payments of 30/. each, the true con- struction was that the whole sum should be paid in two years, and the matter contained in the scilicet rejected} whereas according to the defendant's construction, four years should be given for payment. But I think the charge was right. The business of a scilicet is to render something more clear or certain which was expressed in doubtful or general terms before. If instead of doing this it contradicts or destroys what went before, it must be rejected altogether. I cannot forbear expressing my hope that before this ac- tion is brought to trial again, the pleadings, except the de- claration, will by permission of the Court of Common Pleas be made de novo, and that they will be drawn up in form so as to leave no room to doubt what is their meaning. If the defendant intends to contest the validity of the award, his way is to plead no award; the plaintiff must then reply and set forth the award and breach, upon which the defendant must demur; short pleas ought not to be received but by consent. If either party requests his adversary to draw up his plea at large and it is refused, it will be good cause of demurrer, assigning the same specially for cause of demur- rer. I am of opinion on the whole that the judgment shoutd be reversed, and a venire facias de novo awarded. BRACKENRIDGE J. concurred. Judgment reversed. 1813. HAAK v. BREIDEK- BACH et al. 16 CASES IN THE SUPREME COURT HECKERT and another, administrators of Heckert, 6b 16 10sr426 4 Q 4 O AJ.i-.V^JVijJ.VJL C4A1V* UltWltlVrA 9 W\J.I*B,**UV m+mrm ** -m - -7 I^^T fl ^^ HAINE. g 00 IN ERROR. If the question ririjjjs was a writ of error to the Common Pleas of Dau- l)e whether a re- .. _ ceipt to which *- phin county, where three bills of exceptions were ten- SnTJitneltwasdered by the counsel of the plaintiffs in error, who were de- given, the witness fendants below, to the opinion of the Court, in admitting must be called : . , but the fact of the and overruling testimony. The whole case appears m the %* oP^ioa of the Chief Justice. proved by any w ' ess ' r .v. ,1 Elder and Hopkins for the plaintiffs in error. One ot the de- r fendants, an ad- ministrator, hav- Montgomery and Duncan, contra. ing released all his interest in the . _, intestate's estate, TiLOHMAN C. J. This action was brought by George the plaintiff below against John Heckert the original all the costs of the defendant below, who had been his guardian, for money re- should be admit- ceived by the defendant for the use of the plaintiff during as^Ttn?ss! Cd his minority. The action was commenced in 1787, Heckert Qu9 " (afterwards in- second reference, and award for the same sum ; and the plain- creased to so dol- tiff released 2 dollars 5O cents, the excess beyond the ma- pl-eh gistrate's jurisdiction, by the act of 13th April 1807. 4 Smith's wllcre * e ' J mage arises by an Laws, 470. actual or imme- The only error relied upon was the want of jurisdiction ^In^nlou'the" in the justice. boily of the pro- % perty. Maus and Duncan, for the plaintiff in error. Hall, contra. VOL. VI. E 34 CASES IN THE SUPREME COURT 1813. MASTELLER v. TRIMBLY. TILGIIMAN C. J. delivered judgment. We are of opinion that the act of 1st March 1799, under which this suit was brought, did not give jurisdiction to justices of the peace, except in cases where damage arises by an actual and immediate injury done to real or personal property. It was not meant to include injuries arising with- out any act operating immediately on the body of the pro- perty : such for instance as the present case, whichj was cheat- ing in a bargain concerning a horse. If the words were taken in their greatest possible extent, they would include Trover and Conversion, which was never supposed to be within the act, and in which jurisdiction was subsequently given by the act of 4th April 1 809. There are expressions also re- specting the estimating the damages, by view or otherwise^ which seem to suppose that it must be a damage which might be judged of by inspection. Trespass against property in common parlance, means an act, by which immediate in- jury is done to the property, and this is the sense in which the legislature used it. The cause of action in this case was not of that nature ; the justice therefore had no jurisdiction, apd the judgment must be reversed. Judgment reversed. Sunbury, June 7 In an action of trespass quare clausum fregit fcc. referred to out'declaratTon 1 " RICHTER against CHAMBERLIN and others. E IN ERROR. RROR to the Common Pleas of Northumberland. Richter brought an action of trespass against the defend- ants, for breaking his close, pulling down and carrying away or pie*, the arbi- his fences, and treading down, spoiling and destroying his trators awarded . , . " i- i o as follows: " Wegrass, with a contmuanao as to treading down, &c. the grass ^te from 1st May to 28th May 1812. On the same day on in favour of the which the suit was instituted, and before either plea, decla- ' defendant, and . n i i i i i 'the division as ration or statement hied, the plamtm entered a rule of re- SiUlbury, 104 424 E-Donu Monday, IN ERROR. June 7. THIS was a writ of error to the Common Pleas of Mif- Although a les- * see cannot contro- Jlm county, with which were returned two bills of ex- vert the title of ceptions to the opinion of the Court below, in admitting i-u^cxlsu^niy"* evidence. where the lease has been taken First bill. The suit was an ejectment for a tract of land, without fraud, which the plaintiff claimed derivatively under a location of^haviouronftlic the 13th Mail 1769; and having proved a lease of the pr e-part of the lessor, . y ... *... cv and not where the mises by himself to a certain John Magee, on the 6th juneiessor hasthreat- 1785, for five years, from the 1st of April 1785, and the defendant claimed under Maree, he rested his case. land b ->' fo ri^t . . i 11- arms, unless he Ihe defendant then, in order to enable him to prove title would take the adverse to the plaintiff, offered a witness to prove, that e ^ e he handwrit- Magee had taken a lease of the premises from a certain ! n s of . a subscrib- er n j i L r i ln B Wltness to a James Brown, and being m possession by virtue or the lease, disinterest- lease, the plaintiff came to the land with two men armed hisattestingTmay with guns, and threatened to turn Maree off, unless he be P roved if he . j . . becomes interest- would take a lease from Hamilton; and in consequence he ed subsequently, did take the lease. The Court admitted the evidence, the plaintiff's counsel tendered the first bill. A lease, or o r| , . bond, may be Second bill. The defendant having proved the ci r cum -read in evidence stances attending Hamiltsri's lease, then produced the lease BS from Brown to Magee, to which there were two subscribing subsct i bi ". Kw i t " 07 o ness wlio has be- witnesses, John Marsden, the present defendant, and Tostcome interested, Marsden, both disinterested at the time of the attestation, partV^w'itho'ut 1 and had since become interested by their own act : and hav-' 1I00 . fot ^ e , ha r d ' ' writing of the les- ing nrst proved by a witness, that there was an agreement 5 nsor or obligor: but writing between Brown and Magee> he offered to prove the not conduce 8 , and under suspi- cious circumstances, further proof is necessary 46 CASES IN THE SUPREME COURT 1813. handwriting of these subscribing witnesses, as a ground for Lessee of reading the lease to the jury. The Court admitted the evi- HAMILTON dence, the lease was read, and the plaintiff tendered the v ' second bill. MARSDEN. Huston and Watts for the plaintiff in error. 1. Hamilton leased to Magee, who assigned to Read^ who assigned to the defendant, one year before the lease expired : therefore the defendant came in under the plaintiff, and cannot controvert his title. If Brown's title was to be set up, he should have been made defendant on the record. 2. There are two ob- jections under the second bill. First, that the subscribing witnesses had become interested by their voluntary act, and the rule applies to accidental or involuntary interest. Glynn v. Bank of England (a), Tilley^s case (), Goss v. Tracey (c). Secondly, that where from interest or death the handwriting of the witness is offered to be proved, it should be attend- ed with proof of the party's handwriting ; Bull. N. P. 255. Peake's Ev. 66. otherwise frauds innumerable might be committed. Burnside and Duncan for defendant in error. l.The rule that a person coming into possession under a landlord, or accepting a lease from him, shall not be permitted to con- trovert his title, is founded in policy to preserve good faith and to prevent fraud. There was no mala Jides in the de- fendant's giving the evidence proposed, because it shewed violence and outrage on the part of the plaintiff, in impos- ing the lease upon Magee. The plaintiff would otherwise have reaped a benefit from his own wrong. 2. The paper was sufficiently proved to go to the jury. In addition to the proof of handwriting, there was corroborating evidence of an agreement; though in the first instance, proof of the handwriting was sufficient. As to voluntary or accidental interest, there is no such distinction. Davisonv.Blwner (. &? E. 265- Dong. r7 1799, and. also as to Samuel Needham, whom he had found in posses- u sion, and summoned as defendant. ships, and to which no title was The issue being joined upon not guilty, the plaintiff gave recited to be de- in evidence a patent from the Commonwealth to himself, Q^J[ n ^| lt dated the 13th of Julu 1809, for 189 acres and 1 2O or i he proprieia- . . , i i i . nes before lhe perches, in the above-mentioned township, being the land 4th July 1776, in dispute. He then read the return of the sheriff to prove J^^^^ 6 the defendants' possession, and rested his case. townships, though .... , . bad as to the resj- The defendants, to maintain the issue on their part, gave due. in evidence a certified copy of a certificate under seal, j granted by the commissioners appointed to carry into effect , , l \. .. , 3 . 1802, to prohibit the provisions of the act or 4th April 1799 and its supple- the recording of ments, to Scovil, dated the 21st of January 1804, for totJJJ^&^Jj* No. 4, in Claveracke, containing 189 acres 120 perches, and necticut \\t\e, n- i i r o-i (with the excep- then offered to give in evidence a. deed Irom dcovtl to one UOD of land with- John Brown, dated the 7th of November 1805, and pur- i^SuJdS portinc: to have been acknowledged on the same dav before te act of 1799) r . , f , I-LIJ- thcacknowledg- a jnstice ol the peace tor Luzerne county, which deed in- m eut of such a eluded the land in question, and also other land not within the seventeen townships, but within the county of Luzerne ;' law ^ M y void, and , .11. r i r cannot be given but it contained no recital of or reference to any title tromin evidence, even the Commonwealth of Pennsylvania, or the late proprietaries "itWn^town- before the 4th of Julu 1776. The Court rejected the deed, shi P- i i . i -11 c Statement in and sealed a bill of exceptions. ejectment against The errors insisted upon, were, 1. the rejection of the fi^Vb^for^the deed of 7th November 1805; 2. a variance between the first term: after- ... , ,. 1*1 i wards tlie sheriff statement or declaration, and the verdict and judgment ; the according t<> the statement being against Job Irish only, and the verdict and ^Tum^ed judgment against Job Irish and Samuel Needham. as defendant ano- ther pei-son found in possession. Held, that the statement was right ; and that if the name of the other defendant should be added, it might be doue after verdict and judgment below, and this Court would consider it as done- 56 1813. IRISH etal. v. SCOVIL. CASES IN THE SUPREME COURT Hall and Duncan for the plaintiffs in error. Burnside and Bcelas for the defendant in error. TILGHMAN C. J. The deed from R. Scovtl, the plain- tiff below, to John Broivn, which was offered in evidence by the defendants, and rejected by the Court, contained a conveyance not only of the land in dispute, which lies within the township of Claveracke, (one of the seventeen townships) and had been submitted according to the provision of the act of 4th April 1799, commonly called the compensation act, but also of other land lying out of the seventeen town- ships to which no title was derived from the Commonwealth, or from the late proprietaries of Pennsylvania, before the 4th of July \ 776. There was no evidence of the execution of this deed, except the acknowledgment of the grantor be fore a justice of the peace of Luzerne county, so that the question is whether the acknowledgment is valid. In order to come to a true understanding of the act on which this case turns, it will be proper to state briefly the occasion of making it. The peace of the Commonwealth had been long disturbed by the conduct of a number of persons, who seated themselves on lands in the north eastern parts of the state, under a title not derived from the Commonwealth, or the late proprietaries of Pennsylvania. Various lav/s have been from time to time made to remedy this evil without suc- cess. While the legislature wished to secure the rights of those who derived title under the Commonwealth, it ap- pears to have been their anxious desire to shew as much lenity as possible to a body of men, many of whom might have been deceived as to their own title, and many of whom (or their fathers) had shed their blood in defence of the country in the war of the revolution. In order to effect both these objects, the compensation act was passed, holding out inducements to the Pennsylvania claimants to relinquish their titles to the Commonwealth, and to the Connecticut settlers to purchase from the Commonwealth, the lands thus relinquished. The description of settlers intended to be fa- voured was confined to the seventeen townships, which had been in great part occupied, while the legal controversy be- tween the states of Pennsylvania and Connecticut was yet undecided. The act which we are now more particularly OF PENNSYLVANIA. to consider, bears date the 6th of April 1802, and its mani- fest object appears to have been to continue the kindness" which had been extended to the seventeen townships, but to cut up by the roots the title of Connecticut in all other parts. By the first section, no conveyanee to be made of any land in the counties of Luzerne, Lycoming, and Wayne, shall be effectual to pass any estate or right legal or equitable, unless the title to the land in such conveyance mentioned is derived from the state, or the late proprietaries thereof be- fore the 4th of July 1776, and unless such conveyance shall expressly refer to and recite the substance of the war- rant, survey, patent or title, under which the same is de- rived ; and if any judge or justice shall take an acknowledg- ment or proof of, or any recorder shall record, any deed which shall not have betn derived as aforesaid, he shall forfeit for every offenct 2O0 dollars; and such acknowledg- ment and recording shall be void and of no effect, and such recorder shall forfeit his office. The second section prohibits any person interested in the Connecticut title to sit as a judge or serve as a juryman in any cause, civil or criminal, in which that title may be brought into question, and prohibits all sheriffs to summon any person interested in the said title> as a juryman, &c. But the third section provides that " none of the penalties or disabilities created by the said u act, except so far as relates to judges, sheriffs or jurors, " shall relate to land or the claimants of land within the se- " venteen townships of Luzerne county, or any of them, so " far as concerns any act of theirs concerning lands within "the said townships, which have been or may hereafter be *' duly submitted according to law, under the provisions of " an act of assembly passed on the 4th of April, 1 799, &c." The operation of the third section is this. The restriction in the first section, with respect to the conveyance of titles not derived from the commonwealth, has no effect on lands within the seventeen townships, which have been or may be submitted under the compensation act, but the prohibition in the second section to sit as a judge or serve as a jury- man, or to return as jurymen, &c. remains in full force even as to persons within the seventeen towns. There can be no doubt then that the conveyance of that part of the land in dispute, which lies within the seventeen townships, if it had VOL. VI. H 57 1813. IRISH et al. v. Soovn.. 58 CASES IN THE SUPREME COURT 1813. IRISH et al. v. SCOVIL. not been connected with other prohibited land, would have "been effectual, and the deed of conveyance might have been legally acknowledged and recorded. Neither have I any doubt but that the estate of the grantor in the land within the seventeen townships, pass by the deed in question, although other prohibited lands are contained in the same deed. That the land within the seventeen townships should pass, is agreeable to the third section and not at variance with any part of the act. But what shall we say to the ac- knowledgment of this deed ? The acknowledgment is a step preparatory to recording. If it may be acknowledged, so may it be recorded. But it can neither be acknowledged nor recorded in part. They are acts indivisible, and must be good or bad in toto. It is no answer to say that the record- ing may be good so far as respects the lands in the seven- teen towns, and void as to the residue. One object of the law was to prevent the entry into the record books of any writing purporting to be a conveyance of prohibited lands ; and this object may be completely frustrated, if such con- veyances may be placed on record, by joining in the same deed a conveyance of other lands. Where prohibited lands are inserted in a conveyance, the act declares the acknow- ledgment to be void ; how then can we say that it is in any respect good ? If it be said, that this is a hardship, it must be acknowledged to be brought on by the negligence of the grantee, who ought not to have accepted of such a convey- ance. It was very much my wish to have supported this acknowledgment, if it could have been done without violat- ing the act of assembly ; because the costs in this action are enormous, and the deed may be given in evidence when the cause comes to be tried again in a new ejectment, by pro- ducing the subscribing witnesses. But I am constrained to consider the acknowledgment as altogether void, and that being the only evidence offered of the execution of the deed, the Court of Common Pleas were right in reject- ing it. The plaintiff in error has brought forward another excep- tion, that the judgment is erroneous, because the statement of the plaintiff's claim makes no mention of Samuel Need- hum, one of the defendants. But it does not appear to me that there is much weighj in this exception. The act of as- OF PENNSYLVANIA. 59 6b t>a 6s i 203 Iw225 2w336 2w337 3w227 4wl52 4ws 79 4ws 82 6ws356 14 62 27 335 32 305 63 38 66 260 38 sembly directs that the plaintiff shall file a statement of his claim, on or before the first day of the term to which the action was brought. It was done in this case before the term, and done properly, for at that time there was no de- fendant but Irish. But it is also directed bylaw, that if there are any other persons found in possession, the sheriff shall summon them, and they shall be also made defendants. Needham was found on the land, summoned by the sheriff, and entered as one of the defendants. He appeared by his attorney and joined the other defendant in the plea of not guilty. The act has been literally complied with by the statement which was filed. Whether more was necessary, I will not say, because from what appears on the record, the Court of Common Pleas would have been authorized to per- mit an amendment of the statement by inserting Need/iam's name in it at any time, even after verdict and judgment ; and if so, this Court may consider such amendment as hav- ing been made. My opinion therefore is that the judgment should be affirmed. YEATES J. was absent in consequence of sickness. BRACKENRIDCE J. concurred with the Chief Justice. Judgment affirmed. 1813. IRISH et al. v. SCOVIL. PS ft. CAUFMAN against The Presbyterian Congregation of Cedar Spring. IN ERROR. Swibwy, Wednesday, June 9. 235 XT' RROR to the Common Pleas of Mifflin county. It If a tenant for J * was an ejectment by the Presbyterian Congregation of Averse titt^witll- Cedar Sprint? against Caufman^ for 200 acres of land, as to out the cons . ellt ofthereversioner, his children and all persons who come in under him or them, are estopped from controverting the r eversioner's right to possession, in the same manner as tenant for years or his assignee would be. Where boundary is the subject in question, what has been said in relation to it by a person now deceased is evidence. A written agreement was placed by both the partiesin the hands of a common friend, who upon his removal from the scene of the transaction placed it with his father, who died. After proof of these facts, a witness swore that after the father's death, he together with the son-in-law of the fa- ther to whom all hi* papers came, made diligent search among the father's papers, but could not find the writing. Held, that this was sufficient proof of the loss, to lay a ground for one of the par- ties to prove the contents, without the oath ot the son-in-law himself as to the search and not finding- Upon adescriptivc location, the deputy surveyor surveyed more than the usual excess, and with- put the knowledge of the owner, cut off a part of the survey containing the best lands, and answer- ing most accurately to the description, for which another person at the deputy's instance entered a location, and got a return for himself- The owner of the first location not being informed ol the circumstance, entered upon the disputed part, and improved it. Held, that the return of survey did not prejudice the oldest proprietor, nor bent Jit the youngest ; and that the oldest had title. 60 CASES IN THE SUPREME COURT 1813. CAUFMAN v. CONGREGA- TION OF CEDAR SPRING. 99 acres T 7 7 of which he took defence, under the circum- stances dtiailed in the opinions of this Court. The case was here argued at the last June Term, upon exceptions to the opinion of the Court below in admitting testimony, and in their charge to the jury, all of which distinctly appear here- after. Huston, for plaintiff in error. Watts, contra. TILOHMAN C. J. The Presbyterian Congregation of Cedar Spring, were plaintiffs below, and obtained a verdict and judgment. In the course of the trial exceptions were taken to the plaintiffs' evidence, and to the charge of the Court. It will be necessary to state the evidence, in order to understand the points in controversy. So early as the year 1763, the plaintiffs began to build a church on that part of the land now claimed by them, which is not in dis- pute. The settlement having been broken up by the Indian war, the building of the church was suspended and not re- sumed till the year 1767, when it being found that the old logs were rotten they were rejected, and a new church built within about four rods of the site of the old foundation. On the 30th of March 1767, a location was entered in the land office "for 200 acres adjoining Thomas Baxton, Robert " Neilson and John Wilkes, ' in the names of James Patter- " son and James Purdy" in trust for a Presbyterian Meet' *' ing house and grave yard" On these locations the quan- tity of 332 dcres 81 perches was surveyed by James Wilson, an assistant ot William. Maclay, deputy surveyor. When Maclay was informed of th quantity, he said it was more than he could return ; and therefore told Isaac Calhoun, under whom the defendant claims, that if he would enter a location for 100 acres, he might take up part of the land, which Calhoun accordingly did; in consequence of which Maclay cut up the land into two surveys, one of which con- taining 232 acres 18 perches he returned for the congrega- tion, and the other containing 99 acres 123 perches for Calhoun. The part returned for Calhoun is much the best in quality, and answers best to the description of the plaintiffs* location* It does not appear that the congregation were in- OF PENNSYLVANIA. 61 formed of the manner in which these surveys were returned ; 1813. on the contrary thejr took and always retained possession of CAUFMAN the disputed tract, and about the year 1 774 or 1 775, built a v. parsonage house on it, which was first occupied by their CONGREGA- minister Mr. Kennedy* About the year 1779, Kennedy ^^ ^ was succeeded by the Rev. Hugh Magill, who was placed SPRING. on the land under a written agreement with the congrega- tion, by virtue of which he was permitted to clear woodland and make improvements, for which he was to receive a com- pensation in case they exceeded the rent. Magill while thus in possession, purchased Calhourfs title for 4O/. a sum far below its value, supposing the title to be good. This was about the year 1 786. Before the purchase was made, Magill informed the congregation of Calhoun's claim, and told them, that if they did not purchase, he would. It does not appear that the congregation took any steps towards purchasing themselves, but the purchase of Mag-ill produced discontent, in consequence of which the matter was referred to the presbytery in the year 1 80O, when it was finally agreed that Magill should hold the possession of the church land dur- ing his life and receive an annuity ; but he was no longer to remain pastor of the church. He died in possession in the year 1805, immediately after which his children re- ceived notice from the plaintiffs to quit the premises. Dur- ing their father's life, his sons William and Robert obtained a conveyence from James Purdy the surviving trustee of the church, for the sum of 55 dollars, and on the 1 7th March 1807, they obtained a patent from the Commonwealth in trust for all the children of their father. On the 5th May 1807, all the children joined in a deed to the defendant with general warranty, in consideration of the sum of 5OO/. secured to be paid to them. As soon as the defendant took possession, the plaintiffs brought this ejectment against him. The charge of the president of the Court of Common Pleas was in favour of the plaintiffs ; but at the same time he told the jury, that if they were satisfied that Magill purchased from Calhoun for his own use, with the consent of the con- gregation, in that case the defendant would not be estopped from controverting the plaintiffs' title, although he came in under their tenant. He likewise told them that if they were satisfied that the congregation were informed of the defend- 62 CASES IN THE SUPREME COURT 1813. ant's intention to purchase, and gave no notice of their CAUFMAN c ^ aim i tnc verdict ought to be in favour of the defendant. v . I have been thus particular in stating the evidence, be- CONGREGA- cause there is very little difficulty when the matter is fully TION OF understood. We must now take for granted that the con- LEDAII . . ., , , . SPRING, gregation gave no assent to Magills purchase for his own use, and that they were not informed of the defendant's in- tention to purchase. The case then stands simply thus. The defendant purchased from the children of Mag-ill, who came in under their father, who was the tenant of the plain- tiffs. Under such circumstances shall not the defendant be obliged to restore the possession to the plaintiffs ? Certainly he shall. Neither the tenant, nor one who claims under him, shall withhold from the landlord that possession, which by the agreement of the parties, was to be given up at the end of the term j and whether the term was for life or for years there is no difference. This principle is so familiar that au- thorities need hardly be cited. I will refer, however, to the case of Galloway v. Ogle, in this Court, 2 Binn. 468, and Jackson v. Hardie, in the Supreme Court of New Tork, 4 Johns. 210, 211. It is not proved expressly that the de- fendant knew whence the persons from whom he purchased derived their possession, but that is immaterial; k was his business to know it, and the circumstance of his taking a general warranty renders it probable that he did know it, or at least that he knew the title not to be without suspicion. I have hitherto considered the case upon the facts which I have stated. But on the trial of the cause the defendant objected to the admission of some of those facts in evidence. The validity of those objections is now to be examined. In the first place it was contended that parol evidence of what was said by Wilson the assistant of Maclay ought not to have been admitted, because the official return of survey was the best evidence of the survey. But the evidence of Wilson's words was not let in with a view of contradicting the return of survey ; it was only to shew what were the boundaries of the plaintiffs' claim. It will be recollected that Wilson is dead, otherwise nothing less than his own oath could have been received. Where boundary is the sub- ject, what has been said by a deceased person is received as evidence. It forms an exception to the general rule. It was OF PENNSYLVANIA. 63 necessary for the plaintiffs to shew their possession of the 1813. lands returned for Calhoun ; because had they acquiesced CAUFMAN in that return, and suffered Calhoun to take possession and v. keep it for any considerable time, they would have been CONGREOA- TTOTtf OV bound by it. But having never acquiesced, they had a right Q AR to contend that William Maclay had done the wrong, even SPRING. supposing that not more than 22O acres could properly have been returned upon a location for 200 acres. He ought not to have deprived them of the most valuable portion of the land, especially as it corresponded best with the plaintiffs' location. It was impossible for the plaintiffs to shew the ex- tent of their possession, without shewing the lines run by Wilson. Those lines were the plaintiffs' boundaries, at least such was their claim. It appears to me therefore that what was said by Wilson, came within the exception which admits the words of a deceased person to be given in evidence in a matter of boundary. The next exception is to the admission of parol evidence to prove the substance of the written agreement between the congregation and Maglll. To make way for such evi- dence it must be proved, first, that the agreement once ex- isted ; second, that it has been lost or destroyed, which may be done by circumstantial evidence. There was good proof of the execution and existence of the writing, and of its being deposited in the hands of Joseph M^Clellan, for safe keeping, so that he was to be considered as a trustee for both parties. On Joseph M*-Clellarfs removal to Butler county, he placed the writing in the hands of his father John M^Clellan. The father then came into the place of the son, and held the deposit for the benefit of both parties. John M'-Clellan died, and the plaintiffs had recourse to his son- in-law James Sanderson, into whose hands all his papers came. Sanderson with James Knox made diligent search among the papers of John M'Clellan, but the writing was not to be found. This is proved by Knox. The defendant's counsel insisted that all this was insufficient, because San- derson was not examined on oath. The Court of Common Pleas were satisfied that enough had been done, and ad- mitted the parol evidence. If this writing had been in the custody of the plaintiffs themselves, it might have been reasonable to hold them to very strict proof of its loss or 64 CASES IN THE SUPREME COURT 1813. CAUFMAN v. CONGREGA- TION OF CEDAR SPRING. destruction. But considering that it was no more in their hands than in those of the opposite party, I am not disposed to differ from the opinion of the Court of Common Pleas. Proof was made of a search by Sanderson; and as it was as well known to the defendant as the plaintiffs that Sanderson had possession of his father-in-law's papers, by depositions taken in this cause before the trial, the defendant, if he had suspected collusion or negligence in the search, might have examined Sanderson on oath. Having thus considered all the points made by the plaintiff in error, I have only to add that upon the whole I am for affirming the judgment. YEATES J. The first error assigned by the plaintiff in this case is, that the declarations of James Wilson, an assistant of William Maclay ^ deputy surveyor of the district, were received in evidence to establish a survey of the lands in question for the congregation, whereas in fact the lands were surveyed and returned on the application of Andrew Cal- houn. under whom Caufman claims. This objection is found- / *> ed on a misapprehension of the fact. The making of the survey was ascertained by other proof written as well as parol ; and it also appeared, that Calhoun was informed of this survey prior to his entering his location. But the de- clarations of Wilson were received for the sole purpose of establishing the boundaries of the claim, and the extent of the possession of the congregation. The decision in Mont- gomery's Lessee v. Dickey, in Franklin county, is a strong case in point upon this subject. 2. It has been contended, that the contents of a written agreement between the congregation and the reverend Hugh Magill, their pastor, were shewn by parol, without laying proper grounds for such testimony in the first instance. How stands the fact? In 1778 or 1779 Mr. Magill succeeded Mr. Kennedy as minister of the congregation, and was put into possession of a house previously erected by the con- gregation upon what was called the glebe (being the pre- mises in question) and occupied by Kennedy. An agreement was entered into between the parties, and deposited in the hands of Joseph M'-Clellan for safe keeping. Upon his re- moval to Butler county, he delivered this paper to his father John M^Clellan ; and on his death all his papers came into OF PENNSYLVANIA. 65 the hands of James Sanderson, his son-in-law, who together 1813. with James Knoxmade a diligent and strict search for the original agreement, but their endeavours were fruitless. v. These facts were amply verified by the depositions of CONGREGA- M^Clellan and Knox, taken under a rule of Court ; and the T, ION OF Court being fully satisfied of the former existence and loss SPRING. of this agreement, and that due pains had been used to ob- tain it, permitted its contents to be shewn in evidence by parol proof. It was objected that Sanderson might have re- tained the paper in his possession, and have subtracted it from the other papers of his father-in-law when the search was made, and that he also should have been examined upon oath. This might have been a prudential measure if pursued, but I can see no absolute necessity for it. The fact was sworn to, that all the papers of John M'Clellan deceased, were examined carefully, and that the agreement could not be found. There was no reasonable ground to suppose that Sanderson would withdraw it, nor could he have any motive for so doing. He united his exertions to find it; and if the Court of Common Pleas were convinced that due diligence had been used to obtain it, they were jus- tified in letting in oral testimony of its contents. 3. It has likewise been urged that the judges below erred in charging the jury, that the congregation were entitled to recover the possession. It appears to me to be a strong case on their part. The congregation began to erect a church a few perches from the tract of land in question in 1763. The Indian war came on, and the inhabitants fled but returned in 1767. On the 3Oth March 1767, James Patterson and James Purdy took out a location for 20O acres of land ad- joining Thomas Baxton, Robert Nelson, and John Wilkes y in trust for a presbyterian meeting house and grave yard. It called with precision for the tract in controversy, and could be laid on no other spot. In the same year they built a new church, and James Wilson the assistant of William' Maclay deputy surveyor, having surveyed 332 acres 81 perches on the meeting house location, Maclay under the pretence that he could not return so large a quantity thereon, returned under a latter location of Andrew Calhoun, dated 8th January 1768, 99 acres 123 perches without the pri- VOL. VI. I 66 CASES IN THE SUPREME COURT 1813. vity or consent of the congregation. By these means the CACFMAN congregation would be stripped of the lands which the trus- v. tees had specially applied for, and in lieu thereof, would CONGREGA- obtain lands which ?were proved on the trial, to be of in- T CK IAK ^ Tlor quality, and considered relatively were not deemed SPUING. as exceeding one fourth part in point of value. This con- duct was most highly unjustifiable in every view of the case. It is not competent to the proprietary agent to vary the contract of the party without their consent. In 1774 or 1775, the congregation built a parsonage house on the premises in controversy, north easterly of their church, with- out any claim on the part of Calhoun, and put their minister Mr. Kennedy in possession thereof, who occupied the same until 1779, when he was succeeded by the Rev. Hugh Ma^ill, who was likewise put into possession by the con- gregation, under a written agreement which is since lost, that he should reside therein free of rent, and should have liberty to make improvements on the land, for which he was to receive compensation in case they exceeded the value of the rent. Thus living under his flock and super- intending their spiritual concerns, he buys in the claim of Calhoun for 40/. in 1786, which, if his pretensions were well founded, would be worth at least 300/. The congrega- tion are justly displeased with him, but he is suffered to continue on the land. In 1800 the matter is heard in pres- bytery j and at length it was mutually agreed that Magill should hold possession of the glebe during his natural life and receive an annuity. He gave up the sacramental cups &c. and separated from his flock as their pastor. All this seems incompatible with his pretensions under the adverse title of Calhoun. Magill died on the land in 1805, and im- mediately afterwards, notice was given to his children to quit the premises. Previously thereto, on the 1st of Febru- ary 18O2, William Magill and Robert Magill two of the sons, fraudulently obtained a conveyance from James Purdy the surviving trustee of the congregation, in consi- deration of 55 dollars; and after their father's death, on the 17th of March 1 707, obtained a patent from the Common- wealth in trust for all the heirs, and all the children join in a conveyance to John Caufman on the 5th May 18O7, with covenant of general warranty. Immediately after OF PENNSYLVANIA. 67 Caufrnan received possession, an ejectment was brought 1813. against him. CAUFMAN Upon this statement of the facts, I can see little difficulty v. in deciding in whom the title is ; or as it is frequently ex- CONGRBGA- pressed, who had the best right to the patent. The question otr OF whether the congregation were guilty of any constructive SPRING. fraud in not giving notice to Caufrnan previous to his pur- chase, was fairly submitted to the jury, and they have deci- ded against it. Their possession by their tenants operated as full notice of their claim. They had the earliest location, particularly describing the premises, which could be satis- fied no where else, which was followed up by an early sur- vey, and though not properly returned, the actual survey formed a complete contract. If the surveyor general would not receive the survey on the ground of the large quantity of land contained therein, the surplus thrown out should not have been in such part as was specially called for by the ap- plication, but on the other side of the tract where the lands were of inferior value, and notice given thereof to the trus- tees of the church. The conduct of the deputy herein, could not affect the interests of the congregation, unless they ac- quiesced therein after notice of the fact, of which there was no evidence. Hugh Mag-ill came into possession under them as their tenant, and neither in a legal nor moral senae could withhold the possession from them against the plain tenor of their contract. His children came in under him, and also their vendee, and they all stood in the same relative situa- tion towards the original landlords. The plain consequence is, that Caufrnan must resort to his covenant of general warranty upon his eviction, for the redress of the injury he has sustained. I am of opinion that the judgment of the Court of Com- mon Pleas be affirmed. BRACKENRIDGE J. having been prevented by sickness from sitting on the argument, gave no opinion. Judgment affirmed. CASES > ; f i sl'rJ yrff IIWI'M n't 7 IN THfc yj:>Vf tloOBgyfgJOO v' SUPREME COURT OF PENNSYLVANIA. * ite fd mr '!,* 6f;-r r'uirt'// , "-' Western District, September Term, 1813, 1813. THOMPSON against JOHNSTON. 6b 68 Iw 96 Pitttburg, m ERROR. Saturday, September ii. _, RRQR to the Common Pleas of Indiana county, to A warrant, sur- I-j < ' T vey, and patent JL-A remove the record of an ejectment for 217 acres and chased *f "he PUr " 1 8 perches of land, brought by Johnston the plaintiff below Indians, and against Thompson, in which the following case was stated. which the pro- ' ' prietariea did notto be considered in the nature of a special verdict. know at the time of granting, 10 be within the Jndian fjffg O f plaintiff belozv. A warrant issued by the Com- ImMiM, pass no ' * *" right. monwealth of Pennsylvania to Thomas Johnston for 20O acres of land within the late purchase, dated 17th May 1785. A survey of 217 acres 18 perches and allowance was made on the 1 7th of July 1 785, by virtue of the said war- rant, by James Johnston deputy surveyor, adjoining the purchase line. Thomas Johnston the warrantee above named, by indenture dated 3d December 1798, in consideration of natural love and affection and of one dollar, conveyed the said tract of land to James Johnston the plaintiff in fee. The defendant is in possession of the land surveyed as above. The said defendant and a certain Alexander Taylor searched the lines of said tract of land about thirteen years ago, and found the purchase line marked differently from other lines ; and that the diagram made by Alexander Taylor on the 27th of December 1809, by virtue of an order of Court, contains a true representation of the surveys of CASES IN THE SUPREME COURT, &c. plaintiff and defendant, and their relative situation, and of the purchase line as run in conformity with the treaty " with the Indians at Fort Stanwix in 1768; and that the land now claimed by plaintiff lies on the north side of said line, and adjoining thereto. The said treaty and purchase from the Indians, and the different acts of assembly relative thereto, to be considered as part of the case, and that the purchase line was run and marked agreeably to the acts of assembly, previous to making the plaintiff's survey. Defendant's title* An application was entered on the 23d of July 1773, for 30O acres in the county of Westmoreland^ in the name of Charles Porter. On the same day a warrant was issued by the then proprietaries of Pennsylvania to Charles Porter for 300 acres joining Stephen Porter in Westmoreland. On the 14th day of October 1773, a survey was made by Joshua Elder deputy surveyor, by virtue of the said warrant, containing 323 acres and allowance, and which survey is fairly represented in the diagram made as above by Alexander Taylor. Charles Porter by indenture dated the 8th of February 1775 in consideration of five shillings conveyed the said tract of land to James Cannon; and the then proprietaries on the 18th of the same month, granted their patent for the land to Cannon. The defendant settled on the land in dispute in the year 1796, and has cleared eight or nine acres. The purchase line runs through the tract of land in the name of Charles Porter ; and the defendant claims the tract under the patent to Cannon above mentioned. The purchase line above stated was the boundary line between Westmoreland county and the counties thereto adjoining on the north, until the act of assembly, passed the 30th of March 1803, erecting certain parts of Northumber- land and Lycoming counties into a separate county called Indiana; the same for a certain time came within the juris- diction of Westmoreland, and is now Indiana county, and was so at the time of bringing the suit. The commission to Joshua Elder contained only an authority to survey within the purchase of 1768* The survey of defendant was made, and patent granted before the purchase line was run by the commissioners. And if upon the whole the opinion of the Court shall be Sec. 69 1813. THOMPSON v. JOHNSTON. 70 CASES IN THE SUPREME COURT 1813. The diagram of Taylor is not material : it shewed the THOMPSON interference of the tracts, and that Porter* s survey was v. upon land not then purchased from the Indians. JOHNSTON. Forward argued for the plaintiff in error. yj'u lo eJ->t 3iM-i'&ib yi j j iuu; ,tui^'.'u\i. Ross contra. TILGHMAN C. J. James Johnston the plaintiff below, and defendant in error, claims under a warrant dated 17th May 1785, on which a survey was made 17th July 1785. John Thompson, the defendant beloxv, claims under a war- rant dated 23d July 1773, on which a survey was made 14th October 1773, and a patent issued 18th February 1775. But at the time of the defendant's warrant, survey and pa- tent, the land had not been purchased by the late proprie- taries of the Indians. The question therefore is, whether any right to land so unpurchased passes by a patent. It is a principle that nothing passes by a deed, where the grantor is entirely deceived as to the object of the grant, unless such deception be without any fault of the grantee, and on a point which the grantor is bound to know. Considering that the surveyor was in some measure the agent of the party who took out the warrant, as well as of the proprietaries, and that it was the party who described the land which he wished to take up, I do not think that a survey made in ex- press violation of the rules prescribed for the conduct of surveyors, can be said to be altogether without the fault of the warrantee, although he may not have been guilty of an intended fraud or deception. It was impossible for the pro- prietaries to be present at the execution of surveys. They therefore laid down general rules for the direction of sur- veyors, and it is highly reasonable that all persons applying for lands, should be bound by those rules. One of these di- rections was, to survey no lands beyond the bounds of the purchases from the Indians ; a regulation founded not enly in good policy, but in strict justice. The royal charter did indeed convey to William Penn an immediate and absolute estate in fee in the province of Pennsylvania. But that great and good man did not conceive that he had a title in con- science, until he had obtained the consent of the natives. Accordingly he established it as a principle, which was fol- OF PENNSYLVANIA. lowed by his successors, and has received the approbation of all mankind, to grant no lands which had not been pre-~ viously purchased of the Indians. In this he was supported by the legislature, who at a very early period made it penal for any individual to settle on the Indian lands, or even to make a purchase from them. The consequence was what might be expected. The Indians entertained a lasting sense of gratitude and good will to the proprietaries and go- vernors of Pennsylvania, and were less disposed to war with that province than with others, where principles less equita- ble had been adopted. If the proprietaries had been inform- ed of the truth of the matter, we may be morally certain, that the patent in this case would not have been issued, nor is it pretended that it ought to have been issued. But it is said that having issued, the legal estate passed. But that is begging the question ; for it is contended on the other side that the grant was void, in consequence of the deception. We are not without authority for this opinion ; for it was determined before the revolution in the case of The Pro- prietaries v. Samuel Wallis, that the patents were void which were issued for lands in the proprietary manors, surveyed contrary to standing instructions, and done in such a man- ner, that the secretary and surveyor general were imposed on. It was also decided at Nisi Prius in the year 1796, in the case of Weiser v. Moody, that nothing passed by a patent for lands beyond the bounds of the purchase, unless the pro- prietaries or their superior officers were acquainted with the true situation of them. It may be asked, what in such a case does equity require ? The answer is plain. When the patentee has been guilty of no fraud, he should either be permitted to survey an equal quantity of other land, or have his money restored to him with interest. But equity- would not require that he should have the identical land, illegally surveyed in 1773, which has been since legally surveyed and sold to another under the authority of the Commonwealth, This would be doing wanton injustice to the subsequent purchaser. In the present instance there is no allegation of fraud, but there certainly was negligence or carelessness in the surveyor, or the warrantee, or both. The purchase line had not been actually run ; it was therefore incumbent on the surveyor to keep at such a distance as 71 1813. THOMPSON c. JOHNSTON 72 CASES IN THE SUPREME COURT 1815. should be clearly within it. At any rate the survey was at THOMPSON ^ e P er '* * l ^ e wan *antee. This is the light in which the v. subject has been constantly viewed by the legislature. In JOHNSTON, the act for opening the land office, subsequent to the revolu- tion (9th April 1781, 1 Smith's Laws 532) by which all imperfect titles derived from the late proprietaries were confirmed, there is an express exception of lands not within the Indian purchase ; and in the year 1785, petitions for con- firming titles under circumstances similar to the present were rejected. It appears to me therefore that the title of the defendant is defective ; consequently the title of the plaintiff, although of later date, stands good. I am of opi- nion, that the judgment of the Court of Common Pleas be affirmed. YEATES J. The history of Pennsylvania from its founda- tion as a colony, furnishes most abundant proof of the fixed resolution of the different proprietaries to dispose of no lands within their chartered limits, which had not previously been purchased from the Indian natives. The cultivation of peace with the Aborigines was a measure of sound policy ; and combined therewith the individual interests of the lords of the soil. Their solemn engagements not to sell lands beyond the boundary of their purchases were repeatedly recognized in different conferences with the Indians. The usual forms of warrants issued from the land office restricted the surveys to be made thereon within the Indian purchases; and the deputy surveyors received written instructions to execute the warrants directed to them, "according to the " express word and order of such warrants, and not other- '* wise :" and it is obvious that they had no authority to enter on the Indian lands to make their surveys. The pur- chasing of lands from the natives, or settling thereon, was prohibited by positive law. No instance can be shewn wherein the proprietary of- ficers have received an application for lands within the Indian boundary ; and we are bound to presume that if such applications had been made, they would have been re- jected. It appears by the minutes of the governor's council, (Lib. M. 151.) that on the 18th of April 1752, a commis- sion and license issued to Andrew Montour to settle and reside in any place he should judge convenient and central; OP PENNSYLVANIA. 73 to preserve the lands from being settled by others, and warn 1813. off all who had presumed to go there, and to report the THOMPSON names of such as had settled there, that they might be pro- v. secuted. In the course of my practice at the bar, two cases JOHNSTON. only came to my knowledge of ejectments being commenced on surveys made out of the Indian purchases ; but the plain* tiffs never ventured to bring either of them on to trial. It appears from the facts agreed on in this case, that the survey under which the plaintiff in error claims the lands in dispute, was made on the 14th of October 1773, above eighteen months prior to the running of the lines of the Indian purchase, made at Fort Stanwix, viz. on the 4th of May 1775. The imaginary line therefore between the nearest fork of the west branch of Susquehanna and Kit- tanning, could only be guessed at. But if the owner of the Warrant under which the plaintiff founds his pretensions, knew at the time that the survey was made beyond the purchase, he was guilty of a fraud of which he or those claiming under him cannot avail themselves. There is nothing on the face of the survey as returned, which could lead the proprietary officers to information that the lands lay beyond the Indian purchase j and the deputy surveyor has sworn that his commission contained only an authority to survey within the purchase of 1 768. Assuming it then a u ,a ftict, that the situation of the lands beyond the Indian pu aase made at Fort Stanwix, was unknown either to the grantors or grantee at the time of issuing the patent on the 18th of February 1775, what is the law arising on this case ? It was against the uniform practice of the proprietaries to sell lands unpurchased from the Indians ; nor was it their intention to do so in the present instance. A mistake had arisen from the want of knowledge in the deputy surveyor of an unmarked boundary of forty or fifty miles in extent, which had never been run; and neither party meant that lands within the claim of the natives should pass. There was not therefore the union of two minds in the grant of the lands in question, under the circumstances of this case. But what is the plaintiff's equity ? The lands have been paid for by the patentee at the rate of Si. sterling per one VOL. VI. K CASES IN THE SUPREME COURT THOMPSON v. JOHNSTON. 1813. hundred acres ; and as between him and the late proprie* taries, if the consideration has failed either in whole or in part, the former is entitled in good conscience to have the consideration money refunded in proportion to the defi- ciency of his title, together with interest thereon, and his reasonable expenses. The Commonwealth has succeeded to the rights of the proprietaries, and should deal out the same measure of justice as would be incumbent on the latter. Beyond this the plaintiff has no fair pretensions against the state. Besides the relations between the parties have materially changed by subsequent events. Previous to the Indian purchase at Fort Mackintosh, the land office by an act passed 21st December 1784, was declared to be opened for sale of all vacant lands within the state (the de- preciation and donation tracts only excepted) at the rate of SO/, currency for every one hundred acres. In pursuance thereof Thomas Johnston, under whom the defendant in error holds, has paid for the lands in question at that rate, and the equity derived under him is evidently superior by a positive law to that derived under Charles Porter, who paid a very inferior sum for the lands then supposed to lay within the purchase. To give a preference to the latter under such circumstances, would render an illegal act the means of obtaining an undue advantage over the rest of the community. , Such were evidently the grouno^'" . the legislative deter- mination upon the petitions of James Milligan and Hugh Lenox, presented 22d March 1785, {Journals of Assembly 235,) and of William Parr, Owen Biddle and Clement Biddle, presented 28th of the same month. (Ib. 252). For although the committee on both petitions reported on the 5th of April 1785, "that at the times of the petitioners making the lo- " cations and paying the purchase money, it was understood " and believed that the lands were within the lines of the " Indian purchase, but that the line which was run from the " western branch of Susquehanna to the Allegheny, in or "about April or May 1775, is said to have excluded the " lands so located and returned or part of them; yet they "were nevertheless of opinion that the claimants had an tl equitable claim to have the lands confirmed to the war- " rantees, or t/ieir leg.il representatives or assigns, and re- OF PENNSYLVANIA. 75 " commended a resolution that the prayer of the petitions " should be granted." The legislature however refused to adopt the report, (Ib. 286.) and no provision was made in the subsequent law of 8th April 1785 allowing a preference in such cases. Upon the whole I am of opinion that the judgment of the Court of Common Pleas of Indiana county should be affirmed. BRACKENRIDGE J. At the time of the proprietary grant made to the plaintiff in this case, had the charter proprietor a right to the land granted, or has he since acquired a right, so that he could have it in his power to make a title, though f originally he had not ? The king of England, under whom the charter was granted, would seem to have considered himself as having an absolute right to the soil ; for there is nothing said as to the rights of the Aborigines, or any reser- vation made in granting the charter. From the first disco- very of the continents or islands of America, these Aborigines were not considered as having any right, not being chris- tians, but mere heathens and unworthy of the earth. The pope, as head of the church, considered himself as having the title paramount and the absolute right of the soil. " The earth is the Lord's and the fullness thereof," says the scrip- ture ; and for whose use could it be intended but for that of the heirs of salvation. This was the catholic notion of the right; nor would the protestant church seem to have en tertained different ideas as respected the claim of the origi- nal inhabitants of the country. For on the crown of England becoming protestant, we find no distinction taken, or modi- fication of the grants that were made under it. The bare right of discovery is all that is referred to as warranting a right of property in the country so discovered. But the pro- prietor himself taking the charter, would not seem to have considered it as giving a right paramount and above that of the Aborigines; on the contrary he would seem to have acknowledged the right of the natives by purchasing from them. But it is observable at the same time that he consi- dered himself as possessing an interest in the soil, exclusive to a certain extent ; otherwise why claim a monopoly in his disposal of lands within thl cfiarter boundary ? He would not 1813. THOMPSON v. JOHNSTOX. 76 CASES IN THE SUPREME COURT 1813. himself take possession without giving an equivalent, but he THOMPSON wou " tl not P ermit others to purchase. This was bringing the v. Indian to his own market, where, if he sells at all, the In- JOHNSTON. dian must take what he could get from this his only cus- tomer. This was an indirect constraint, and in fact excercising an interest in the soil, an ownership of it. It cannot be said therefore that the proprietor admitted an absolute dominion in the native to the ownership of the soil. In fact he consi- dered the Indian title as but in the nature of a claim. Nor was it altogether without reason that he so considered it ; not for the reason already hinted at, the not being a Chris- tian, but for the not being a man ; in other words, the not living more humano, and after the manner of men. For what distinguishes an Indian from a wild beast, an animal ferce natura;, who lives upon his prey and cultivates little or no soil? And hence it is that if he claims a right to what soil shall be necessary, living in this manner, it will be more than will fall to his share as one of the family of mankind ; for the cultivation of the soil will support a greater population, than a life by hunting, and therefore this mode of life is less according to the law of nature. It is on this principle that the philosopher fastens in reducing the claim of the savage from that extensive range of a life by hunting, to a more confined extent of subsistence by tilling the gtound. With regard to the whole of mankind, a savage cannot be said to have an absolute right to the soil he occupies, since he does not occupy it in a way that contributes to the civi- lization of man ; for a close population and the scarcity of soil to a certain extent, are necessary to the improvement of the species. Arts and manufactures are the offspring of a close cohabitation, science also and all those endowments which elevate human nature. Hence cities, towns and dense settlements produce refinement in manners, and lead to the cultivation of literature and to all mental enjoyments. Can. those therefore be said to have a perfect right to the soil, who do not use it themselves in a proper manner ? Can they be said to have a right to hinder others to use it ? I know the extent of this argument, and it is sufficient to open the vista to see where it will lead. It will terminate in this, that with respect to the community of nations, there can be no absolute right of soil in- any nation, unless where OF PENNSYLVANIA. 77 it can be ascertained that taking quantity and quality 1813, into view, and relative contiguity to marine productions, 7 f HOMPSON no more of the earth is occupied by one than another, or at p. least no more than in proportion to their size and the pro- duction of what is necessary for their subsistence. For to reduce it to strict principle, as the length and breadth of the place of interment is to the body of a man at death, so is his proportion of the soil during life. But upon this princi- ple in making such allotment, we must consider every por- tion of soil equally productive, which it is not, or at least made equally capable of subsisting, by the adjoining element of water, fowling or fishing or some such advantage. But though it may not be practicable to ascertain to what por- tion of any soil the right of an individual may extend in a state of nature, yet the claim of the savage is monstrous, living by hunting and claiming beyond all reasonable extent. I therefore do not respect the claim of a native Indian as he is called, in the light of an absolute right to the whole ex- tent of the soil he is accustomed to range over, or rather to prowl across in his pursuit of wild beasts. The proprietor did not seem to have considered it in that light, otherwise he could not have thought himself justifiable in restraining others from purchasing this right from the native, should he be disposed to sell. He seems to have considered the native as having something like a lien on it, a special pro- perty in the whole, but an absolute right only to so much of it, as living by cultivating it, might be necessary for. his subsistence. Hence it is that we hear of extinguishing the Indian title. And it was at all times well understood both by the proprietary and others, that the extinguishing this title was practicable, by an easy purchase from time to time, so as at no distant day to include the whole within the charter boundary. It was little else than a mere matter of form to reserve the Indian title in the grants made by the proprietary, though it was usual to make such a reservation 44 of lands lying within the late purchase made of the In- " dians." Yet on the score of interest in the soil, had not the proprietor William Penn, and those under him, the same right to grant before a purchase, as the king of England had to grant to him ? The proprietor by taking the charter can- not be said not to have acknowledged the right of the king 78 1813. THOMPSON v. JOHNSTON. of England to grant; and the charter being taken without 'any reservation of the rights of the natives, goes some length in implying an idea on the part of the proprietor that they had no right; at least that it was not an absolute right. For with the full knowledge of all the circumstances in his mind, it would be idle to accept as a compensation for ser- vices or even as a gratuity, what was of no value. It might be said, it is true, that he accepted the king of England's good will to this soil, not regarding it as a title. But the matter of fact is, that in the understanding of both pro- prietor and settler that came with him, the king's right was considered good, though founded but on the right of disco- very ; and the savages were considered as but having a claim, which more for the sake of peace than of obligation, it behoved them to extinguish. But as this matter of fact may be disputed, the under- standing on the part of the proprietor or those settling under him, let it rest on matter of law ; and it cannot be denied to be a principle, that an individual selling that to which he has no right, yet if he after acquires a right, it shall enure to the use of him to whom he sold. Would the proprietor have been bound after having made a purchase of the Indians, to complete a title for land sold before a purchase of it from the Indians ? This will depend upon his having intended to grant the land in question, or the not having used the pro- per means on his part to ascertain and to know what he was granting. It will not lie in his mouth after having received a valuable consideration, to allege that he was mistaken in his grant, unless the mistake was induced by the purchaser, or the proprietor deceived in his grant. Whose duty was it to measure off the land, and to know what was to be mea- sured off ? Whose officer was the surveyor ? He has been said to be the agent of both purchaser and proprietor. Could the purchaser change him as he would change an agent? The proprietor could. I consider it just the same thing as if the proprietor himself had been present, and had measur- ed off the land. The boundary of the purchase, in other words, the purchase line, was known to neither of them ; but it was in the power of the proprietor to have ascertained it. The purchaser could not, for it would have been at his peril to have entered on the soil of the proprietor and to OF PENNSYLVANIA. 79 have run and marked lines for the purpose of ascertaining 1813. the boundary. It would have been unreasonable that he THOMPSON should have been at this expense for the sake of a single v. tract. It behoved the proprietor to have had the boundary JOHNSTON. ascertained, before he granted a single warrant or authoriz- ed a single survey for the new purchase j because it could not be mathematically known, nor, unless where natural boundaries were called for, could it be certainly known where the land measured off might lie. There was no mis- take of the individual spot shewn to the surveyor. The tract to be surveyed was shewn to the officer of the pro- prietor. There was no fraud on the part of the purchaser; and I view it in the same light, as if a merchant in his shop, meaning to sell to a certain extent of the piece, should cut off a yard beyond, and receive the price and deliver it to the buyer. The making a survey and running lines, and marking beyond the line of the Indian purchase, might give umbrage to the Indians ^ and subject the country to a war, as a settlement would do ; and it was prohibited by law to make a settlement, and with a view to this policy. But though the legislature by an act could prohibit settlements, being an act operating upon their own citizens, yet they could not prohibit the charter proprietor from surveying and selling the property admitted to be his, and therefore shall not be presumed to have done it, nor the act in question be con- strued to have gone so far. I do not think it would have lain in the mouth of the proprietor to say, that not having run the purchase line, he had suffered a survey to be made, which now appeared to be over it, having received the fees of office for surveying, and the purchase money. He would have been compellable in equity to grant a patent, had he not granted it; but having granted it and completed the agreement, 2 Powel on Contracts 263 is in point that he was bound by it, where it is the mistake of all the parties to the agreement, and no one is more under an imposition than another. Courts of equity hold that to shake them on that account would be mis- chievous, tending to make all agreements vain and nugatory ; and in such a case the mistake is not the occasion of the promise, therefore the act is valid, there being nothing wanting of the assent or bona fides. When in addition to CASES IN THE SUPREME COURT 1813. THOMPSON v. JOHNSTON. this it is considered that it more behoved the one party "to have prevented the mistake than the other, the case is the stronger. The proprietor could have the line run defini- tively between him and the Indians, according to the sale made by them ; the grantee could not. He had not authority even had he gone to the expense ; it was a line of forty or fifty miles, and his running might neither' have satisfied the proprietor nor the Indians. It is admitted by the counsel, and it could not but be admitted, that in chancery the proprietor would have been compelled to refund the money. But if the party who could have compelled him to refund had got the land, why not keep it ? Melwr est conditio pas- sidentis. Whatever the proprietor was compellable to abide by, will not the Commonwealth which succeeds to his rights be bound to do ? The Commonwealth has succeeded to his estate in these lands. But by the act, that of the 27th of November 1779, there is a reservation of all rights, titles, estates, claims and demands which were granted by or derived from the said proprietaries, their officers or others by them duly commissioned, authorized and ap- pointed or otherwise, or to which any person or persons other than the said proprietaries were or are entitled, either in law or equity, by virtue of any deed, patent, warrant or survey, of, in or to any part or portion of the lands comprised or contained within the limits of this state, &c. or by virtue of any location, &c. Could there b( j any thing more extensive than such a reservation ? " Officers "duly appointed or otherwise" They were willing to embrace every possible equity that could be in any party, claiming from by or under the proprietor. And when it is considered that it was an exercise of the dominium eminens, as the civilians term it, or transcendental right, as Burlamaqui calls it, a divesting property on the ground of the salus populi, the supreme law, shall we be putting a hard con- struction on the law as affecting third persons, and applying the rule of the summum jus ? Even had the proprietors themselves been concerned, it cannot be alleged that they could now be called upon to refund, since they have made no objections to the grant, but affirmed it by a patent so early as February 1775. Or would it be rea- sonable to turn the purchaser round to recur to them? OF PENNSYLVANIA. The Commonwealth has made no offer to refund the pur- 1813. chase money with interest, even if this could divest the THOMPSON right of the purchasers. I have never met with any thing v. that has appeared to me a clearer case both of equity and JOHNSTON. law. Let me consider it a little more. The proprietary estate was taken away on the ground of being too enor- mously great, to be consistent with the freedom of a repub- lican government, which cannot endure such inequality of possessions in an individual. This was a principal conside- ration, setting aside socage render and quit rents, which were a badge of the ancient tenures under great lords in England; but the chief argument urged, was the inequality of the possession. Now an adequate or equivalent. compensation would be inconsistent with the taking away, for in that case the inequality would still exist in another shape. The 130,OOO/. was not therefore a compensation in value, but something in consideration of what had been taken away ; a sum which the proprietary family might be suffered to re- tain, as not inconsistent with the individual freedom of the community. It was nevertheless thought a hard case, and the legislature themselves did so consider it ; for as to claims derived under the proprietor, they have been manifestly liberal in their provisions and reservations. They had no idea of looking at the circumstance of a survey being made by a surveyor out of his district, or not duly commissioned, or made on land in one county when the warrant called for another, or whether the dividing line of a purchase from the Indian territory ran through it or left it out. They con- firmed all these things in bulk, lands surveyed or grants made in a course of a regular proceeding of the land office or otherwise. But even were not this act to be considered as a species of confiscation which is not favoured by our laws, all forfeitures being odious, and supposing the succes- sion by the Commonwealth to be as heir, and free from all odium of taking property under the idea of an imperious necessity, yet even in England where the heir is so much favoured by the common law, would he not be compelled even under an equitable agreement of his ancestor, to com- plete it under such circumstances ? Land not at market, but by the mistake of supposing it at market measured off, possession taken, and the usual rent stipulated, or what is VOL. VI. L CASES IN THE SUPREME COURT v. JOHNSTON. 1813. more, advanced, or what is stronger, the usual whole value THOMPSON or selling price of lands paid. What reason have we to sup- pose that the lord of the soil in question, the proprietor, would have demanded more for this land than for lands be- fore sold, the 5/. sterling an hundred acres ? For what an heir may be called upon in England to do, I will cite an authority or two. " The heir of a person who has entered into " a contract, may in equity be liable to perform it although " he is not named in it. For where a person articled for the " sale of lands which he convenanted to convey, but did not ** covenant for him and his heirs, it was held that his heirs- " should be bound to perform the agreement. Nerv. on Con. " 34. If A agree to sell lands and receive part of the purchase " money, and before any conveyance made die, his heir on a " bill brought against him will be decreed to convey." Com. on Con. 115. But it will be said this is not the case of an ancestor or heir claiming the lands, but of a third party, a bona fide purchaser of the lands before granted by the an- cestor through mistake. He may be a bona Jide, but is he what the law calls an innocent purchaser? Had he not notice? The survey on the ground was notice ; the survey was re- turned into the office and a patent granted. It was matter of evident notoriety in pals, to all the country, that these surveys had been made ; and when the division line of the purchase came to be run, it cut some of them in two, or left but a selvage in the old purchase, or threw them out alto- gether. It was a catch at this circumstance that led to the application of the plaintiff for a warrant, and to survey across these lines. But had the contract with the proprietor even been void, I can cite an authority that will shew, that a third person cannot take advantage of it where a conside- ration has been paid. If a person lends money on a surren- der of copyhold lands, but which is not presented at the next Court, for want whereof it is void by the custom of the manor, and afterwards another person purchases the same land from the mortgagor with notice of the prior surrender, and takes a surrender and is admitted thereon, the Court will decree the subsequent purchaser either to pay the mortgagee his money, or to surrender him the legal estate. New. on Con. 505. There is but one single particle of equity in this case, as between the proprietary grantee OF PENNSYLVANIA. 83 JOHNSTON. and the Commonwealth or the plaintiff deriving title under 1813. it. It might be said, that though the proprietor might have THOMPSON been considered bound to extinguish the Indian title be- cause he sold at the usual selling price of lands for which the Indian title was extinguished, yet as he had not done it before it was put out of his power to do it by the Common- wealth taking the estate from him, yet the Commonwealth having at a subsequent treaty with the Indians made a pur- chase, the defendant may be said to be bound to contribute a blanket or a pair of leggens as his proportion of the extin- guishment. That I presume he would have no objection to do, or the value of them if called upon for it, but deducting at the same time his proportion of the tax which in con- templation of law, we must presume has been raised towards this extinguishment. This is taking up matters in the ex- tremest rigour which the law could require. But under all circumstances I take the defendant to have the ground valid under him, notwithstanding the proprietor had cut from a piece of cloth, so to speak, which he meant to have kept a while by him, and not to have disposed of at that time ; and this is all that can be said about it. Both buyer and seller mistook the piece ; both are contented, but a third person who knew all this, wishes to avail himself of the mistake. I will not sanction it, or so far as my opinion goes, suffer it to be done. Judgment affirmed. LITLE against TOLAND. IN ERROH. Pittsburs; Saturday, September 11. In a notice to u T7 1 RROR to the Common Pleas of Washington county.. J-^ In the Court below, Toland brought suit against Litle, pence, that ifnlew a justice of the peace of Washing-ton county, for issuing a ficienttuTemls" fi. fa. against his goods, without any previous process or w ' thin thirt y T , f-iru -r L , , fa. and return by Toung; as stated in his plea, and there rested the case. The defendants then asked the Court to charge the jury, that as no commission to Toung, constituting him coroner, had been shewn in evidence, the present action was not supported. But the Court declared that it was not incum- bent on the plaintiff to produce such commission in order to support the action. The defendants further requested the Court to charge, that OF PENNSYLVANIA. the action was not supported, because no evidence had been given of any recognizance having been taken by the recorder ~ of deeds agreeably to the act of 28th March 1 803 ; but the Court declared that such evidence was unnecessary in sup- port of the present suit. Whereupon a bill of exceptions was tendered and sealed. The errors relied upon in this Court were, 1 . The refusal of the Court to rule the plaintiff to reply to the two pleas last filed. 2. The admission of the bond, without proof of its being recorded, or certified and transmitted to the secretary of state, or that the sureties had been approved of by the judges of the Common Pleas, or that they had been ap- proved by the governor, or that a commission had ever issued to Toung 3. The charge of the Court, that it was not necessary to give evidence of a commission having issued to Toung. 4. The charge of the Court, that it was not necessary to prove a recognizance to have been taken from Toung and his sureties. Kelly and Foster for the plaintiffs in error. Reed and Forward contra. TILGHMAN C. J. The first error assigned in this case, is, that the cause was tried without joining issue on two special pleas put in by the defendants below. It is said in answer to this objection, that the Court would not permit the pleas to be put in, or what isc,the same thing, they decided that the plaintiff might go on to trial without replying to them. Although the act of 21st March 1806, authorizes the de- fedant to alter his plea or defence at any time on or before the trial, yet it must be understood that this is to be by permission of the Court ; otherwise the defendant might harass and evade the plaintiff forever, by constantly put- ting in new pleas when the cause was ready for trial, or even during the trial. But although the Court have a discre- tion on this subject, yet it is a legal discretion, subject to the review of this Court on a writ of error. When the de- fendant offers to plead specially, a matter of law necessary 1813. YOUNG etal. v. COMMON- WEALTH. CASES IN THE SUPREME COURT 1813. YOUNG et al. v. COMMON- WEALTH. for his defence, he should be permitted to do it, because it tends to that certainty which is the object of pleadings. It tends also to bring the point before the proper tribunal. If the matter pleaded is demurred to, the Court decide it ; if denied, it goes to the jury. Whereas by the general issue with leave to give the special matter in evidence, the whole goes to the jury (subject to be sure to the charge of the Court) in so confused a manner, that when the trial comes on, the parties hardly know what is to be tried. I am there- fore of opinion, that when the defendant offers such a plea, it is error to refuse it, unless it is put in at such a time as shews that the object is delay. In the present instance, the reasons assigned by the Court for their opinion, shew that the pleas were not rejected because they were put in for delay, and the record shews the same thing, because they were put in on the 20th of July, and the cause was not tried until September following. The pleas ought therefore to have been received, and the plaintiff should have been ordered to reply to them. 2. The second error assigned is of a multifarious nature ; it includes several distinct points which I will consider separately. It is objected that the bond ought not to have been admitted in evidence, because it was not recorded in the office of the recorder of deeds, and transmitted to the secretary and recorded in his office. The act of assembly directs that this should be done, and it ought to be done. But if the bond is sealed and delivered, it is not the less valid because the officers of the Commonwealth neglect their duty in not recording it. The recording was for the facility of proving the bond on a trial, as well as for safety in case of loss. These advantages are lost ,in not recording. No copy could be received in evidence, and the plaintiff was driven to the necessity of producing the original. He did produce it, and proved the execution; that being done, it was proper that it should be read to the jury. The next objection is, that there was no proof of the sureties in the bond being approved by the judges of the Court of Common Pleas and by the governor, previous to its execution. I can- not think that this was necessary. The bond having been executed, and the coroner having acted in his official capa- city, it may fairly be presumed, that the approbation re- OF PENNSYLVANIA. 93 quired by the act of assembly had been previously given. Another objection is that there was no proof of the com- " mission having issued to the coroner. Neither do I think that this proof was necessary. It was proved that Samuel Toung had executed and returned a writ directed to him as coroner, which was quite sufficient, because he had no right to execute the writ until he was commissioned. 3. The third error assigned is, that the Court directed the jury, that on the issue joined, evidence of a commission having issued to the coroner was not necessary. I have taken notice of this objection before, which is but a repetition of what was included in the second error. 4. The last error assigned is, that the Court directed the jury that there was no occasion for the plaintiff to prove that a recognizance had been taken by the recorder of deeds of Indiana county, according to the provision of the act of 28th March 1803. The opinion of the Court was, " that u such evidence was unnecessary in support of the present " suit." In considering this objection, we shall perceive the difficulty into which the defendants were thrown by the re- jection of their special plea. If that plea had stood, the plaintiff must either have demurred, in which case the fact of no recognizance having been given would have been confessed, or he must have replied that a recognizance was given, and then it would have lain on him to prove it. Whereas the plaintiff's counsel now contend, that if no recognizance was given, it lay upon the defendant to prove the negative. Whether that was the opinion of the Court below, does not clearly appear. They only say that it was not necessary for the plaintiff to prove that a recognizance was given. But the Court having declared that the special plea ought not to be received, because the defendants might have all the advantage of it on the general issue, it would be unjust that they should not be placed in the same situa- tion in which they would have stood, if the plea had been admitted, and then it would have lain on the plaintiff to prove the affirmative. I will not say whether the recogni- zance might not have been good, although not taken before the recorder, if taken before a judge of the Court of Com- mon Pleas ; but if no recognizance at all was given, it ap- pears to me that the plaintiff cannot recover on the bond. 1813. YOUNG etal. v. COMMON- WEALTH. CASES IN THE SUPREME COURT 1813. YOUNG etal. v. COMMON- WEALTH. Pittsburg, Monday, September 13. When the The act of assembly directs that bond and recognizance shall be given, and that unless given, " the commission and all " acts whatsoever, done by the coroner under colour of office, " shall be void and of no effect." Now this bond, by the ex- press terms of the condition, is to have no effect until Sam uel Toung shall be duly commissioned coroner &c. But a void commission is no commission ; therefore by the positive provision of the law, there can be no recovery on the bond unless it is accompanied with a recognizance. This may be attended with excessive hardship, when the officers of the Commonwealth have been so inattentive, as not to see that the law has been complied with before the commission issues, or at least before any process is put into the hands of the sheriff or coroner ; and it may be doubted whether the legislature, in their anxiety to enforce security, may not have gone farther than was necessary. The subject is well worthy of their consideration ; for as the law stands, both in- dividuals and the public may be subject to great injury from the hardihood of a sheriff or coroner elect, who pre- sumes to act without having given the requisite security. On the whole it is my opinion that the judgment should be reversed, and a new trial ordered. YEATES J. was prevented by sickness from being present at the argument. BRACKENRIDGE J. concurred with the Chief Justice. Judgment reversed. MORRISON and others against SEMPLE and anoth 6b 94, 9sr446! 14s r 88 14s r 98 14s r 99 14s r 101 4r 81 2wh383 4ws4I9 9 142 249 511 25 331 130 188 IN ERROR. r T^HIS was an ejectment for 142 acres 136 perches of ** land in Alle S h y county, brought in the name of Ed- tion to pass the ward and Sarah Semple by their guardian William Jfaus. whole interest of ,, , , . . _ . the devisor, the against Morrison and others the plaintiffs in error ; in which a^cTif thatwas l ^ e ^^ ow ' n g case was stated in the nature of a special ver- the devisor's diet, and judgment was without argument entered for the estate ; otherwise if the words only escre te oect evse ; e evsee w ten tae or e. J?all ray real and personal property" passes a fee in the reality. OF PENNSYLVANIA. 95 plaintiffs below, that the cause might be removed to this Court. " Sa muel Semple late of Allegheny county, deceased, on /. 1., 7az//or v. ^6 (M). Mountain contra, did not deny the general principle for which the opposite counsel contended, but argued that " property" in this will denoted the thing devised, in the same manner as if the devise had been of all the testator's lands. He cited and relied on French v. M^Ilhenny, and Clayton v. Clayton (v). TILGHMAN C. J. Judgment was entered in this case, in the Court of Common Pleas, without argument and by con- sent, in order that it might be brought up for the opinion of this Court. The question is, whether an estate for life or in fee passed to Steele Semple by the will of Samuel Semple. The will is very short and in the following terms : (Here the Chief Justice read the will). The counsel for the de- fendant in error, placed this case in as strong a light as it o) Co-top. 304- (A) 4 JPfod. 89. (/) 1 Harris # Jfc. 148. \b) 1 Salk. 238. ft) 2 Fern. 687. (7) 2 Ann. 13. c) 3 Crunch 128. (fc) 2 Came* 351. () Coivp. 352.. d) 1 Wash. 96. (?) 1 .Mimf. 537. (s) 1 Ca. 127. [e} 1 Ca. 7. /) Doug. 734. [) 1 . 236. (w) 2 P. Wms. 741. (?t) Co-toper, 238. (o) 5 JIfass. 535. (0 1 Sound. 186. (u) Styles 308. (v) 3 Binn. 476. OF PENNSYLVANIA. 97 would bear, but I have never entertained a doubt on the subject. In whatever point of view it is considered, I per- ceive a plain intention with apt words to pass a fee simple. Here is a testator with an only child, (a daughter) who had a husband and two children. He makes no mention either of child or grandchild, but speaking of his son-in-law in the most affectionate manner, he gives him the whole of his real and personal property, and appoints him his sole executor. What can be concluded from this, but that the testator placing unbounded confidence in the husband in- tended to put every thing in his power. It is inconceivable that with any other intent, he should have observed a pro- found silence with respect to every other human being. It is a singular instance of confidence, but does not prove that the testator had no affection for his daughter or her issue. It proves that he was convinced of the honour and integrity of his son-in-law, and to an honourable and upright mind no obligation could be stronger than that which this will imposed. What is its language ? " I place every thing that *' is dear to me in your hands. The person and the fortune " of my child are confided to you. I know that you will " prove worthy of the trust." But it is said that intention alone is not sufficient. The heir is not to be disinherited without words sufficient to pass the estate to some other person. It is true that we are not permitted to guess at the intention ; it must be ascertained from the words of the will. But if it can be so ascertained it shall be carried into effect. No technical words are necessary to pass a fee simple. Any expressions which shew an intent to give an absolute estate are sufficient. A devise of land to one for ever t or, *' to dispose of at his will and pleasure," is a fee; be- cause there is a manifest intent to give a fee. So a devise of one's estate, or of all one's right or interest in land, passes a fee for the same reason. The rule is this : Words which only describe the object devised, give no more than an estate for life ; but words which comprehend the quantum of the estate, pass the fee. And this rule is not founded on any artificial principle, but on the plain ground of common sense and fair construction. When a man gives all his estate, it is as much as to say, all the interest that he has in the subject devised. In the present instance the testator desig- Voi. VI. N 1813. MORRISON etal. 17. SEMPLE et al. 98 CASES IN THE SUPREME COURT 1813. MORRISON et al. v. SEMPLE etal. nates no particular object, but gives in general, all his real ' and personal property. I can conceive no expressions more comprehensive. The giving of the real and personal pro- perty by the same words, shews an intent to give the same interest in both, that is to say an absolute interest, for no man ever doubted that those expressions give an absolute interest in personal property. Property signifies the right or interest which one has in land or chatties. In this sense it is used by the learned and unlearned, by men of all ranks and conditions. We find it so defined in dictionaries, and so understood by the best authors. The possession of land may be in one man, the property in another. There is a right of possession, and a right of property. Every scrivener who draws a conveyance, mentions not only the land itself, but also " the right, title, interest and property of the grantor "of, in, and to the same." In common conversation we say that such a house or piece of land is the property of such a person. When therefore a man devises all his real property^ he devises all the right and interest which he has in any lands or real estate. If he has a right in fee simple a fee passes, otherwise the will is not complied with ; for if the devisee takes but an estate for life, he does not take all but only part of the devisors property. Many cases were cited on the argument. I think it unnecessary to take particular notice of any of them. It is a principle undeniable, that when the words of a will indicate an intention to pass the whole interest of the devisor, the devisee shall take a fee. Being clearly of opinion that such an intention is indicated by the expressions of this will, it follows that Steele Semple took an estate in fee in all the real estate of Samuel Semple. The judgment of the Court of Common Pleas must therefore be reversed, and judgment entered for the plaintiffs in error. YEATES J. absent in consequence of sickness. BRACKENRIDGE J. concurred with the Chief Justice. Judgment reversed. OF PENNSYLVANIA. 99 C A H i L L against B E N N and others. * * j 6b 99 IN ERROR. Pittsburg, was an ejectment in the Common Pleas of Indiana scomber is. * county, in which the attorney of Benn and others, the Verdict for the plaintiffs, below, in his Prcedpe for the summons, particu-court'be'iow.' 6 larly described the land in controversy ; the defendant ^'^which 6 * pleaded the statute plea of not guilty, and on this issue the judges were ... .... , ~. , equally divided. the cause went to trial. A verdict being entered tor the Afterwards mo- plaintiffs, the defendant moved for a new trial ; and the fo^'pStTfr,"* Court being equally divided, the motion was held under two judges being advisement. Afterwards the plaintiffs' counsel moved for ordered judgment judgment, and two judges being present, one ordered judg- ment as a matter of course, and the other objected to the the entry, where- _,, , . . , . . upon the clerk entry. Ihe prothonotary entered judgment; and on the entered judg- same day, the 14th of June 1813, execution was issued. ^ On the same day, likewise, a recognizance to prosecute a.H?ment, this . P , . 111 i Court presuming writ of error was entered into, and made known to the that the dissent- plaintiffs ; and on the 15th of June about 10, A. M. the in * J ud s e ^~ f J ed merely to writ of error issued. At 12, at noon of the 15th, possession enter his dissent was delivered under the haberc, and on the 16th about and no[toarrest sunset, the writ of error was shewn to the Court of Com-^f 1 '^" 131 ' 60 "^ 1 ot law, by prohi- mon Pleas, and the sheriff. The attorneys subsequently hiting the protho- agreed to abide by the opinion of Mr. Ross, upon the ques-^ak^g proper lion whether restitution ought to be made ; and his opinion en A ry - Was in faVOUr of restitution. attornies in the Court below, to abide by the opi- The points made in this Court by A. W. Foster for the n . ion ? fa P|' ofes - . * . f s.onal gentleman, plaintiff in error, were : 1. That there was no judgment in upon the question the Court below. 2. That restitution should be ordered, as tiolf of the"re- U well on the ground of law, that the writ of error was a mises shoukl be f made to the supersedeas to the execution, as on the ground of the agree- plaintiff in error ment below, and Mr. Ross's opinion. 3. That there was hrbeenuikea y error in the omission of the plaintiffs to file a description of >>yaAaer<* is > ld a * so much per acre, and there is a "It is agreed that the following are the facts in this uesnel v. Woodlief et al. cited in 2 Hen. fcf Munf. 173. (note\ it was decided that those expressions in a deed must be re- stricted to a reasonable or usual allowance for small errors in surveys, and for variations in instruments ; and in Nelson v. Matthews et al. In the same book and page, it was ad- judged that a deficiency of eight acres in a tract of 532 acres, was no more than a purchaser who buys for more or less, might reasonbly expect, but that it was otherwise as to a deficiency of 20 acres. It cannot therefore be said here that a title for 903^ acres could be deemed equivalent to 991 i acres, although the words "more or less" are inserted in, the conveyance. Upon the whole, I am of opinion that the personal repre- sentatives of the mortgagor are entitled to an allowance for the deficiency of the lands conveyed, upon the usual prac- tice of our courts, as well as upon principles of law, equity and common honesty, and that the judgment entered in the court below for the defendant in error, by consent, but with- out prejudice, be reversed. BRACKEMRIDGE J. At the original contract in this case, there would appear to have been before the parties, the three separate drafts of the surveys of the three adjoining tracts, the three official drafts as surveyed upon the ground and returned into the office, the courses and distances of these with the calculated quantity returned into the office, and upon which three separate tracts, according to the quan- tity calculated, patents afterwards issued. The sale of these tracts was according to the courses and distances, and I must infer, according to the calculation of the official sur- veys within those courses and distances. In such a case is it ever understood, unless specially provided for, that there is to be a remeasurement, in order to ascertain whether the distances fall short, or a recalculation, in order to ascertain whether the quantity according to such courses and distances VOL. VI. P 113 1813. SMITH v. EVANS, 114 CASES IN THE SUPREME COURT 1813. SMITH v. EVANS. will hold out ? The inconvenience of such an understanding, "and the uncertainty of surveys at different times and by dif- ferent chain carriers, would lead to litigation. Were I to refer to what I know to be the understanding of the coun- try, it is that in the case of official drafts in all contracts, unless specially stipulated, the quantity is taken according to the official calculation, and no idea is ever entertained of a remeasurement or a recalculation. Is there any thing special in this contract which would lead to the idea that a remeasuring and recalculation were intended ? There are the words, twelve shillings and six pence an acre. This it is clear to me was nothing more than the result of looking to the sum for which the purchase was to be made, and comparing it with the reputed quantity or number of acres ; it was estimated to be at that rate, twelve shillings and six pence an acre. But it would seem to me to be a purchase in bulk, and the words " less or more" would refer not only to the quantity of acres actually comprehended in these courses and distances, but to this quantity at twelve shillings and six pence an acre, making up the sum which was to be given for the whole in bulk. I would take the terms expressly to mean, that whether less or more in quantity, the drafts were to govern, and the twelve shillings and six pence an acre had a reference to that computation. There are three tracts of ground as described and computed, for which I must have so much money in the whole. But I cannot have so much money in the whole if it is to be reduced by a deduction. And we all know that the mere quantity of acres in this country in a purchase is but a small consideration, compared with the laying and general advantages of the whole. I cannot construe this writing so as to think that the twelve and six pence mentioned can affect the stipulated sum to be given for the whole, taken for more or less as it then appeared. Not that I think the more or less to be ap- plied to the twelve shillings and six pence necessary, or perhaps intended, but taken strictly it might be so referred. But whether or not, my construction would be the same. There is a class of cases in this country that is springing up and begins to be talked of, whereon an accidental expe- riment or running of a line, or where in consequence of a division amongst minors and valuation by the acre, the OF PENNSYLVANIA. 115 surveys are found to contain less or more ; and where an in- 1813. timation of a computation of the purchase money from the SMITH number of acres, has unadvisedly, because unnecessarily, got v. into a mesne conveyance, claims to refund or set off may be EVANS. advanced. I have heard of some of them which this very controversy has awakened, and which await our decision. I concur with the Chief Justice. Judgment affirmed. CAMPBELL and another, Administrators of CAMP- BELL, against the Lessee of GRATZ. Thursday, IN ERROR. September 16. HPHIS was an ejectment brought against Patrick Campbell f 2 r ^' !n * the intestate, to March term 1797, in the Common ejectment, in Pleas of Westmoreland. The Narr laid the demise on the lstn execution^re- of January 1793, for ten years. After the institution of thef used a f terthe , ~ J * lapse oi several suit, it was removed to the Circuit Court, where in 1 799 year* from the the Court on motion enlarged the term to fifteen years, from^h" rcpira- and in November 180O, it was tried and a verdict found in tl0 ? J . the term 7 ... an( I a 'tfc'' new- favour of the plaintiff for one undivided moiety of the party had come lands in question. After the judgment, the original defen-'" ' p01 dant took a lease from Grate, and a new lease was after- wards granted to William Campbell, son of the original de^ fendant, by Grate** devisee, between which parties a dis- pute had arisen as to possession. At May term 1811, a writ of habere facias was issued, together with ^Ji.fa. for costs, and under these executions, possession was delivered, and the costs made. A motion was then made to set aside both executions; but the court merely set aside the Ji. fa. t and suffered the other to stand. After this writ of error was returned, Wilkins for the defendant in error, moved the Court to enlarge the term to 25 years, upon the ground that the term is merely a fiction, that the powers of a court of error are as competent to amend in such a case, as those of the original court, and that in point of principle there is no difference between enlarging the term to support the judgment, which is done every day, and enlarging it to support an execution, which is the ob- 116 CASES IN THE SUPREME COURT 1813. ject here. He cited Tillotson v. Cheetham (a), 2 TidePs Practice 1028., 1 Ttdd's Practice 662., Crasner v. Van Als- tyne (), and Dunlap v. -S/wr (c). CAMPBELL v. GRATZ'S Lessee. Foster contra, said that the motion was made in order to support an execution illegally taken out, which was contra- ry to all precedent ; that further, the plaintiff had been in complete possession by his lease to the tenant, and ought to pursue the usual remedies between landlord and tenant ; that the present tenant was not the party recovered against, and that as tenant he was entitled to notice to quit, instead of having an execution sprung upon him from a judgment that had been sleeping thirteen years. That whatever might be the power of the Court, they would not exercise it under circumstances like these* TILGHMAN C. J. The Courts have long exercised the right of enlarging the term in ejectments, both before and after judgment, considering it as no more than an instrument by which the cause is brought to trial; and of late even Courts of error have made the same amendments which the inferior court might have done. All this is for the sake of supporting a judgment after trial of the merits. The plaintiffs in error now ask us to go one step further. If the Court will grant an amendment to support a judgment, says he, why not also to support an execution 2 If at the time of judgment the term should be near expiring, and the plain- tiff should inadvertently suffer it to run out before he issues his extcution, he would have much to say in favour of an amendment, especially if the original defendant remained in possession. But the parties in this suit are now changed, thirteen years have elapsed since the judgment, and five since the expiration of the term. Upon the principle con- tended for by the plaintiff, a judgment in ejectment might be made use of for twenty years, as an instrument to obtain possession from whatever tenant might be placed on the land by the defendant, or those claiming under him. This might produce great injustice, and would be contrary to all principle, because it would be using the judgment to the prejudice of persons whose titles had never been tried. In the present case for example, what does this Court know of (a) 3 Johns. 95. (i) 9 Johns. 386. (c) 3 Sinn. 169. OF PENNSYLVANIA: 117 William Campbell's title under the lease by which he was in 1813. possession. 7 As a court of error we know nothing that is "CAMPBELL not in the record ; and are we to go out of it for the purpose v. of trying the defendant's title, and in what manner are we GRATZ s to try it ? for the facts are not agreed on. It seems the plain- tiff had virtual possession by the attornment of the original defendant, who after the judgment took a lease from him. But now, a dispute has arisen between the devisee of the original plaintiff and the son of the original defendant, to whom a new lease was granted. Suppose the plaintiff had taken out his execution, and having obtained possession, had made a lease to the defendant, could he have regained the possession by a second execution ? Certainly not. He would have been left to the usual remedy of landlord against te- nant. Besides, as the discretion of the Court is appealed to by this motion, it appears to me that it would have been more proper for the plaintiff to have applied to the Court of Common Pleas, before issuing the execution. That Court might have enquired into the matter, after having called the other party before them. An opportunity of being heard ought to have been given, because turning a man out of pos- session and selling his goods are serious matters. Upon the whole, considering the length of time and change of parties, I am of opinion that it would be establishing a dangerous precedent, supposing this Court has the power of granting the amendment, to exercise it on the present occasion. I am of opinion therefore that the motion should not be granted. YEATES J. gave no opinion, being kept from Court by sickness. BRACKENRIDGE J. concurred with the Chief Justice. Motion denied. 1813. CASES IN THE SUPREME COURT IRVINE and others against CAMPBELL. 6b 118 4sr529 7s r 76 7s i 81 7s r 87 Saturday, IN ERROR. 4^100 September 18. The seller of npHIS was an ejectment in the Common Pleas of Ve- land, although he J conveys it, retains * nango^ by Charles Campbell the plaintiff below. an equitable lieu against the pur- chaser, and alt Upon the trial of the cause, the facts were these : An im- claiming under . . him, with notice provement was made in the year 1796 upon tne land in s^r question, which lay west of the Allegheny, for the use of Hence, if by the John Field; and a settlement was commenced at that time deed of convey- !.-,,,, , ance, or other in- by virtue or the act of the 3d April 1792, and continued up SfU?S. to 21st Januanj 18O2. On that day Field sold to Campbell, it appears that the the purchase money to the Commonwealth not having been time tor paying a . , , , _ . part of the pur- paid, and Campbell was or course entitled to a patent, on an official survey made and returned, and paying the purchaser under purchase money. On the 29th August 1803, Campbell sold that title at . - . . . . . . . . ,. , sheriffs sale or by an instrument or writing, and conveyed his right to W tt- 8we e rabie e tor an liam Milford for 2,40O dollars, of which 800 dollars were to that by the terms be paid in one year from the date, and the residue in yearly of the instrument _ . , , .. , ._: was not due at payments or 300 dollars each until the whole should be paid. purchase f But \(Milford was to take out the patent in his own name ; and fcy a distinct in- Campbell covenanted that the improvement right wao good. strumentbetween . . .. -11 A t / A the original par- A his writing was entitled an Article or Agreement, and *' fovth'e contained a covenant that each party would upon reasonable whole purchase request give to the other, " any other or further instrument " not due, a" of writing agreeable to law, or which should be necessary " for the security of either party." Immediately under this less duly re- writing, and on the same paper, was another writing exe- cuted by Milford under hand and seal, by which he agreed that no title was to vest in him, till the whole purchase mo- ney was paid. This last writing bore date in the year 1805, without mentioning day or month, but in fact was executed in the month of November 1806. Neither of these writings was recorded till the 16th October 1809. David frvinej one of the defendants, purchased the land at sheriff's sale on the 21st September 1808, under a judg- ment in favour of Jackson assignee of M-Candles^ against Milford, entered the 25th March 1808. There had been a judgment for Joseph Taylor and Co. against Milford at Sep- tember term 1806, part of which was paid, and the remain- OF PENNSYLVANIA. 119 der satisfied by the acceptance of another judgment entered 1813. for Taylor and Co. agaisnt Milford and one Robert Orr y at IRVINE September term 1807. This last judgment Irvine paid after et al. he had made the purchase at the sheriff's sale. The question below, was whether Campbell had a lien on AM1 the land for all that part of his purchase money which re- mained unpaid ; and the presiding judge gave it in charge to the jury, that Campbell had such a lien, and that the pur- chaser at sheriff's sale took the land subject to all equitable liens which the plaintiff had for the purchase money, with- out notice of such lien. To this opinion the defendant's counsel tendered a bill of exceptions. Wiltins and A. W. Foster for plaintiffs in error. Ayres, contra. TILGHMAN C. J. After stating the case, delivered his opinion. It has been decided by this Court that a purchaser at she- riff's sale is protected by the recording act, against all con- veyances not recorded, of which he had no notice. The question will be then, whether the defendant stands in the situation of a purchaser without notice. In examining this point, we must distinguish between the deed from Campbell to Mtlford) and the other writing executed by Milford on the same paper with the deed. As the plaintiff claims under the deed, and cannot make out his title without it, he is bound to take notice of every part of it. Now it appears on the face of this deed, that part of the purchase money was not due at the time when the defendant purchased the right of Milford from the sheriff. This was sufficient notice that part of the purchase money was unpaid, for he ought not to have supposed that it was paid before it was due. The sel- ler of land, although he conveys it, retains an equitable lien against the purchaser and all claiming under him with no- tice that the purchase money is unpaid. For so much there- fore of the purchase money in this case, as by the terms of the deed was not payable until after the defendant's pur- chase from the sheriff, the plaintiff had a lien. It was urged on the part of the defendant, that the plaintiff had lost his lien by delivering possession to Milford^ because the land 120 CASES IN THE SUPREME COURT 1813. was taken up from the Commonwealth, not by warrant or IRVINE ""~ otner written title, but on terms of improvement and settle- et al. ment. But I do not think so. It was incumbent on the defen- v- dant, when he purchased Milford^s title, to look farther than CAMPBELL. to t h e Dare possession. Seeing a mill and valuable improve- ments, he should at least have enquired whether the settle- ment had been commenced and continued by Milford. He ought to have known that nothing is more common than for one man to make an improvement, and sell it to another, so that before the expiration of the five years required by law for the continuance of the settlement, the land may have passed through several hands. In short, if he had exercised common prudence, he would have known that the title did not originate with Milford, but was derived from Campbell. Let us now consider the other writing signed by Milford, giving the plaintiff a lien for the whole purchase money. There was no proof that the defendant ever knew of that writing. It was quite a distinct thing from CampbelVs deed, although written on the same paper, not having been execu- ted till upwards of three years after it. It falls therefore within the provision of our act for recording of deeds, (18th March 1775,) by which all deeds any way affecting land in law or equity, are directed to be recorded within six months after the execution thereof, otherwise they shall be adjudg- ed fraudulent and void against any subsequent purchaser for valuable consideration. The plaintiff then had no lien in consequence of this writing ; so that his lien must be confined to that part of the purchase money which on the face of his deed to Milford was not due at the time of the defend- ant's purchase. But the president of the Court of Common Pleas gave it in charge to the jury, that the plaintiff had a lien for the -whole purchase money. In that he went too far. I am therefore of opinion that the judgment should be reversed, and a new trial ordered. YEATES J. was prevented by sickness from hearing the argument, and gave no opinion. BRACKENRIDGE J. concurred with the Chief Justice. Judgment reversed. s OF PENNSYLVANIA. JOHNSTON against TAIT. 1813. Pittsburg; IN ERROR. Saturday, September 18. LANDER in the Common Pleas of Mercer. ., r that the defend- ant said "there The declaration laid the words to have been spoken by !.' Tait as follows: "It is a rascally business. There was a" { -# an(| c t to " collusion between William Johnston, the plaintiff meaning, person swear a "Aaron Hackney, Levi Arnold and Peter Rambo, to make 1,^^,^" "John Bowman swear a false oath in a suit before Peter b y proof of im " Rambo, {Peter Rambo esquire a justice of the peace mean- there was a col- "ing,) between Bowman, the said John Bowman meaning, " " and Hackney and Arnold.*' The evidence was, that the de- " m ke See." fendant said " that Johnston had entered into a collusion with kid are " he stole "Aaron Hackney and Levi Arnold, to make &c.," without!! ^l,^ 8 ^ mentioning Rambo. The judge charged the jurv that it was n t supported by _ i / i i i . . , .' ,, . proving thewords doubtful, whether the evidence supported the declaration ; to have been " he and the plaintiff's counsel excepted. !! 8 o ^* c 8*i S. B. Foster and Campbell for the plaintiff in error. The sub- stance of the words was proved, and that was sufficient to support the declaration. The words proved were substan- tially those laid, because there was an alleged conspiracy between the plaintiff and two of the three persons named. In an indictment against the plaintiff for conspiracy with the three, he would have been convicted on proof of a con- spiracy with two of them. The case of Cuming v. Sibly (a), E. 9 Geo. 3. C. B., and the King r. Lookup (b), 7 G. 3. B. R., are strong to shew that it is sufficient to prove the substance, except where the tenor is stated. A. W. Foster contra. The offence according to the words proved, was a different offence from that charged in the declaration, since a conspiracy with A and B, is a different offence from a conspiracy with C and D. If the words are changed, and the charge remains the same, the words are matter of form ; but if the change of them, changes the of- fence, they are matter of substance. The offence is changed not merely when its specific character is altered, but also (a) 1 D. and E. 239. (4) Ibid. VOL; VL, Q CASES IN THE SUPREME COURT 1813. when its individuality is gone. He cited Nelson v. Sir Wool- JOHNSTON V. TAIT. TILGHMAN C. J. delivered judgment. To give the plaintiff the full benefit of his exception, I shall consider the judge as having said that the evidence did not support the declaration ; for when he told the jury that the law was doubtful, they would naturally find for the de- fendant, it being incumbent on the plaintiff to mak-e out his case without doubt both in fact and law. It is a question which admits of very little reasoning. The single point is, whether the words laid and the words proved are substan- tially the same. I think they are not. A collusion between A, B and ", and between A, B, Cand Z), are different things. It is not necessary to prove the words exactly as laid ; it will do if you prove so many of them as are actionable. 2 Salk. 660., the >ueen v. Slater. If the plaintiff declares that the defendant called him a strong thief, and proves that he called him a thief, the action is supported, because the only material word is thief. Dyer 75. But if the words laid had been, that the plaintiff stole the goods of A, proof of the defendant's saying that the plaintiff stole the goods of B y would not support the declaration ; because although stealing the goods of B is an indictable offence, yet it is a different offence from stealing the goods of A. So when the defen- dant says that the plaintiff with B, d7and D conspired &tc., it is not enough to prove that he said the plaintiff together with B and C conspired &c.; because although it may be in- dictable for the plaintiff to conspire with B and C, yet it is a different offence from his conspiring with B, C and D ; he may have been guilty of both and punishable for both. I anfi of opinion therefore that the charge of the Court was right, and that the judgment should be affirmed. Judgment affirmed. (a) Hardw. Ca. 2'jl 6b 123 3 350 67 82 OF PENNSYLVANIA. 123 PAUL against VANKIRK and DEPU. 1813. IN ERROR. Pittsburff, Saturday, September 18. THIS was an action of trespass in the Common Pleas A warrant direct- of Westmoreland, for breaking and entering the still t \ d e b p y ea a c J u t f!ll f house of the plaintiff Paul, and taking away sundry goods, constable, if it is The defendants pleaded non cuL with leave to give the spe- proper constable cial matter in evidence. wdl dirSS' " On the trial, the plaintiff called a certain William Davis, A constable and .. , . his assistant mar who swore, that a day or two before the property in the justify under an' declaration was taken by the defendants, he was the owner ^"Seliho^g'h of it, and for a valuable consideration sold and deli vered'tke clearly jn-e- the whole at the still house of the witness, of which he also execution against delivered to the plaintiff possession and the key. The con- Pp sideration was the result of a lumping settlement made be-judgments. tween the parties a day or two before the sale ; and at the time of the settlement, Davis and Paul knew there were two executions out against the former and Vankirk, one at the suit of William Irwin, and the other at the suit of William Irwin assignee of Jesse Regman. The plaintiff also proved the taking by Depu and Vankirk. The defendant's counsel then produced the transcript of two judgments against Davis, and also separate judgments against Vankirk as his bail ; and offered in evidence two ex- ecutions against Davis and Vankirk, under which Depu as constable, and Vankirk as his assistant, had seized the goods. The executions were respectively directed " Westmoreland County, The Commonwealth of Pennsylvania, to -- constable;" and recited that Ir-win had obtained judgment before the justice against Davis and Vankirk, the amount of which it required the constable to levy of their proper goods Sec., as if the judgment were joint. To this evidence the plaintiff objected, but the Court admitted it, and sealed a bill of exceptions. Two objections were urged in this Court against the evi- dence as a justification of the defendants : 1. That the writs were not directed to any constable, and therefore not to the constable of the township &c., where the defendant resided, according to the act of 2Oth March 1810; but it was admit- ted they were executed by the proper constable. 2. That 124 CASES IN THE SUPREME COURT 1813. the judgments, being separate, did not warrant the execu- PAUL tions, which were joint. v. VANKIHK. Forward, for plaintiff in error. A. W. Foster, contra. TILGHMAN C. J. after stating the case, delivered judg- ment. Two objections are made to the execution. 1. That it is not directed to any constable. 2. That there was no judg- ment to warrant it. 1. The act of assembly orders that the justice shall direct his warrant to the constable of the district. This execution is directed to constable. It would have been more proper to direct it to the constable by name, or to the con- stable of the district generally j but it may be supported, be- cause it is admitted that it was executed by the constable of the district. The word constable with a blank, cannot be said to be directed to a wrong constable, and may be understood intended for the right one. I do not know that the consta- ble was bound to execute it without a more particular direcj tion, but he was justified in so doing. 2. The execution was certainly irregular. A joint execu- tion against principal and bail, ought not to be issued on a separate judgment against each. If the plaintiff in the suit before the justice, had been defendant in the present action, it might have lain upon him to shew that his execution was supported by the judgment; but the case is different with the constable, and the other defendant who acted as his as- sistant. It is enough for them to shew an execution issued by competent authority. Whether the execution is support- ed by the judgment, is a question in which it would be unrea- sonable for the law to involve them. It was necessary for the defendants to make out that the goods levied on were the property of Davis, and that they had authority to make the levy. I am of opinion that the execution was legal evi- dence to shew the authority, and therefore the judgment should be affirmed. Judgment affirmed. 6b 125 llsralS 3 49 OF PENNSYLVANIA. 125 BOYLES aginst JOHNSTON'S Executors. Pittsburg; IN ERROR. Saturday, September 18. THIS was an ejectment in the Common Pleas of for 213$ acres, which the executors of Johnston, the or, shewing a sur- plaintiffs below, claimed under a warrant of the 8th December ^hiwintimc',--* 1 774, in favour of Stephen Porter, for 20O acres on Stonu a warrant in the y name of , call- Run. On this warrant a survey was made on the 24th No- ing for A as ad- vember 1775 by Joshua Elder, deputy surveyor, for 213i j d ^ig|' t "ofasm-. acres. On the first March 1782, Porter conveyed to Robert v y found in the * office of the de- Johnston the testator, who obtained a patent from the Com- puty surveyor, on i.i which ^/'s name monwealth. was i ndorsed i n The defendant claimed under an application dated the 3d t! ! e ^f ^ ^"^s April 1 769, and signed by John Pomeroy in the name of Joh n surveyor, all Stephenson, for 30O acres of land on the north side of BUtek^SSXTJt lick about two miles from the fording, which he produced, dencetoshewa together with a copy of the location for the land, in Stephen- sorfs name. No survey of this tract was ever returned to the land office ; but the defendant proved that in the year 1772, a cabin was built upon the land in dispute by one Robert Reed, and about five or six acres of land deadened ; that Pomeroy bought the improvement of Reed, and placed one Milligan upon the land, who improved it for him in the years 1775 and 1776 ; and that Pomeroy in his life time had receipts for the surveying fees paid to Joshua Elder, which had been lost, and had requested Thomas Allison about 20 years before the trial, to procure a tenant for the land. In order to prove a survey of the land in dispute for Pomeroy , under the above location, the defendant's counsel then offer- ed in evidence, successively, the following papers : 1. A manu- script book containing the field notes of Joshua Elder , de- posited in the office of the deputy surveyor of the district, and remaining there, by which it appeared that this land was surveyed for Pomeroy on the 22d April 1 773. 2. A warrant in the name of Samuel Moorehead, dated the 24th June 1735, calling for John Pomeroy's land as adjoining. 3. An old draught of a survey found in the office of the deputy surveyor, on which the name of John Pomeroy was endors- ed in the hand writing of Joshua Elder, and on which the 126 CASES IN THE SUPREME COURT 1813. name of Stephen Porter was also endorsed under the name BOYLF.S of Pomeroy. The Court rejected them all, and sealed a bill v. of exceptions. JOHNSTON'S Executors. KgUy gnd Regd for the pla - int ; ff - n eiTor> relied on tf u Uijs Lessee v. Chew (a), and Sproul v. Plumsted*s Lessee (). Forward, contra. TILGHMAN C. J. after stating the facts, proceeded as follows : If this land was actually surveyed for Pomeroy, and im- properly returned by the deputy surveyor on Porters war- rant, and if Pomeroy had taken possession, insisted on his title, and never relinquished it, then there would have been an outstanding title which would have barred the plaintiff's recovery, even though the title of the defendant had not been connected with that of Pomeroy. Whether it was so connected, does not appear by the bill of exceptions, and therefore we cannot suppose that it was. If as the defend- ants' counsel now say, the connection was proved, it ought to have been inserted in the bill. The papers rejected by the Court seem to have been material for the establishment of Pomeroy's title. Such papers have been received in similar cases. The field notes of the deputy surveyor were admit- ted in Hubly^s Lessee v. Chew, % Sm. Laws 257 ; and it is evident that the old draught endorsed John Pomeroy, must have been very material to shew that the survey was origin- ally made for Pomeroy. Such a draught was given in evi- dence without dispute, in the case of Ross's Lessee v. Fatter- son, tried before the late Chief Justice Shippen and Judge Brackenridge at a Circuit Court for Lycoming county, in. which I was counsel for Patterson. In that case the name of Patterson had been endorsed, then obliterated, and the name of another person inserted in the place of it. The warrant calling for the land of Pomeroy, also tended to shew that a survey had been made for him. By rejecting these papers, the Court took upon themselves to decide matters which ought to have been submitted to the jury. Whether the location was the property of Pomeroy, and supposing it (a) 4 Smith's Laws 257. (*) 4 Ann. 192. OF PENNSYLVANIA. 127 to be his property, whether he had acted so negligently as 1813. to forfeit the imperfect title which he had acquired, were BOYLES matters which depended on. a variety of circumstances, con- -v. cerning which the Court might have given their opinion to JOHNSTON'S the jury after the evidence was closed. But it appears to me, k xecutors> that agreeably to former decisions, the evidence ought to have been received. I am therefore of opinion that the judg- ment should be reversed, and a new trial ordered. YEATES J. absent in consequence of sickness. BRACKENRIDGE J. was of the same opinion with the Chief Justice. Judgment reversed. END OF SEPTEMBER TERM, WESTERN DISTRICT, 1813. CASES 1813. Chamber sburg t Monday, September 27. Although the landlord and tenant law says the judgment of the justices shall be final and con- clusive, a writ of error lies. IX THE SUPREME COURT PENNSYLVANIA. Southern District, September Term, 1813, CLARK against PATTERSON. IN ERROR. ERROR to the Common Pleas of Bedford county, to re- move the record of the proceedings of two justices, in a landlord and tenant cause. Riddle for the defendant in error, moved to quash the writ, upon the ground that the act of 21st March 1772, de- clares that the judgment of the justices shall be final and conclusive. 1 Smithes Laws 374. Duncan contra, said there had been many cases in which the judgment of the justices had been reversed for error ; and cited Boggs v. Black (a). Per Curiam. There are too many precedents of such judgments removed from the Common Pleas by writ of error, to permit the practice to be questioned. The motion must be denied. Motion denied. (a) 1 inn. 333. CASES IN THE SUPREME COURT, Sec: 129 ~6bi29 SANDERSON Executor of SANDERSON against 6s -439 T 5wh 93 : JLAMBERTON. '2 272 1813. IN ERROR. Chmnbersburff, Monday, r F 1 HIS was an action against Sanderson the testator, on Se P tember 27 - , ..,.. J* agreed with L the custom as a common carrier, tor not delivering to R a com m on car- Lamberton a barrel of castor hats, which in consideration of S^of certain''" two dollars, he had agreed to carry from Philadelphia toS 00 * 13 - # without ,, .. . _,, . . . . . , the direction of Carlisle. The suit was instituted in the Common Pleas of A, agreed with Cumberland, and during its pendency Sanderson died, and fo^th^carriage" his executor was made a party by scire facias. In this ^ 688 6 ? 00 * 13 * _ . i r it i i. aml C wi'hout Court it was argued upon the following special verdict, the knowledge or on which the Court below gave judgment for the plaintiff. ed'wUhii a third Carrier. I) _,, . i, i i , 1<)st them. Held * i he jurors empannelled and sworn to try the issue that Ji might "joined in this cause, respectively do find, that the plain- a^S/Taml " tiff James Lamberton* on the twenty-eighth day of April t] tb y bringing Ins action V\c " Anno Domini onet housand seven hundred and ninety -si x, affirmed the con- " being in the city of Philadelphia, bargained and contracted h " with a certain John Semple, then and there being a com- could not after _ r . . , . . c , that recover from " mon carrier, to carry for hire, a barrel containing twelve jr or G. " castor hats, the property of the said James Lamberton, '* which said barrel with its contents, the said John Semple 44 agreed to deliver in a reasonable time, to the said James " Lamberton, at his store in Carlisle, which said barrel of u hats, were at the time of the above contract, deposited " with Benjamin Scull of the said city. The jurors afore- " said do further find, that the said John Semple after- " wards, without the direction of the said James Lamberton, " did engage and contract with a certain John Chambers, " then and there being also a common carrier for hire, that " he the said John Chambers, would deliver the said barrel of u hats to the said James Lamberton, at his store in Carlisle " in a reasonable time. And the jurors aforesaid respec- " tively do further find, that in pursuance of the agreement " so made, between the said John Semple and the said " John Chambers, he the said John Chambers, received the *' said barrel of hats from the said Benjamin Scull, and that " the said John Chambers then and there, without the know- Voi. VI. R 130 CASES IN THE SUPREME COURT 1813. " ledge or direction of the said James Lamberton, did agree SANDERSON " vvitn Robert Sanderson, the defendant's testator, (the v. " said Robert then and there being a common carrier for LAMBERTON. u hire) that the said Robert should carry the said barrel u of hats, and in a reasonable time deliver the same to the " said James Lamberton, at his store in Carlisle. And the " said John Chambers, did then and there undertake that " the said James Lamberton would pay him the said Ro- " bert, for the carriage of the said hats, the sum of two " dollars, upon the delivery of the said barrel of hats at " the store of the said James Lamberton, in the borough of w Carlisle. In pursuance of which said agreement, the said " Robert then and there received from the said John " Chambers, the said barrel of hats. And the jurors afore- " said do further find, that the said barrel of hats was not " delivered to the said James Lamberton, at his store '* in Carlisle, in a reasonable time by the said Robert, but " that the same was entirely lost by the negligence of the " same Robert Sanderson. But whether the plaintiff is en- " titled to recover &c., the jurors are ignorant, and pray " the opinion of the Court. And if the Court shall be of " opinion in favour of the plaintiff, then the jury find for the 41 plaintiff the sum of one hundred and twenty-eight dollars *' and twenty-nine cents damages, and six cents costs. But ** if the Court shall be of opinion in favour of the defend- *' ant, then the jurors find for the defendant." Metzger argued for the plaintiff in error, that here there was an express contract made between Chambers and San- derson, which negatived any implied contract between the latter and Lamberton ; and that as Sanderson could not have recovered his compensation from Lamberton, neither could the latter recover the value of his goods from Sanderson, The action against the carrier must be in the name of the consignor who agreed with him, and was to pay him ; and in this case Chambers was the consignor, acting for himself, and not for Lamberton, because Lamberton gave no autho- rity to Semple to make a contract for him, nor did Semple give any to Chambers. The contract by Lamberton was spe- cially made with a carrier of his own choice. He neither named Sanderson as the carrier, nor was Sanderson em- OF PENNSYLVANIA. 131 ployed under a general order given by Lamberton to employ 1813. any carrier. He therefore cannot maintain the action. Dun- can v. Keiffer (a), Davis v. James (), 2 Com. on Con. 315. Vf LAMBERTON. Parker and Carothers contra. Sandersons estate is clearly liable, and the only question is, by whom the action should be brought. The present action avoids circuity, and that is of itself a strong argument for it. But in addition to that, the contract with Sanderson was clearly made for the benefit of Lamberton, and he has therefore a right to affirm it, and sue upon it. He has affirmed it by the suit. Still further, he was the owner of the goods, and an action against a com- mon carrier may be supported in the owner's name, although he has not named the particular carrier. As to the compen- sation of Sanderson, he had a right to retain for it. Schemer- horn v. Vanderheyden (c), 1 Selw. N. P. 339., Snee v. Pres- cot (/.17., 2 #. 4. 8. a./>/. 42. 14. a./>/.5., %qA. /Vac*. Courts. 305., #a5- fordv. Martin ()., 19 Fm. 555. 56O., Fitz. N. B. Ld. Bale's Notes, 596., 6 Com. Dig. Statute Staple. D. 5. pa. 305., 2 Sound. 8. 9. 10. note 5., 2 ac. 698. Execution. B. 5., 75. 7OO., Co. Litt. 102. a., 1 Smith's Laws, 57. 60. On the other hand were cited 2 Bac. 686. Execution A., Co. Litt. 102 a. ., 2 //zs*. 395. 396, 678., 3 Rep. 12 a., Terms de la Ley. Execution., 3 Black. 419., Rundle v. Etrvein,(c), Pleasants v. Bayer, (of.) (a) 2 P. Wms. 492. (&) Winch. 84. (c) Jfcf. & Sup. C. Pa. Dec. 1795.* (d}M. S. Ct. Ct. Westmd. 1802. * The following is a note of that case, extracted hy the Chief Justice from the manuscript notes of Mr. Justice Teates. TluNDLE and MUBGATHOYD ") Supreme Court, Philadelphia, December Term v. > 1795, before JWKean C. J., Shippen, Yeates, ETWEIN. J and Smithy Justices. Scire facias on a judgment for plaintiffs as assignees of John Scliaffer against George Weiss, 26th February 1787, on a bond dated 14th January 1786. A Ji. fa. issued to June term 1789, which was levied on real property acquired by Weiss subsequent to the judgment, and aliened by him prior to the levy. By agreement of the parties, the defendant was permitted to inquire into the con- sideration of the bond on which judgment was obtained ; and it was clearly proved that the bond was obtained from Weiss without consideration, and by a wicked and fraudulent combination to defraud Charles JVorris (a young man of large fortune but subject to intemperance) of a considerable sum of money ; and that the bond formed part of the system of the iniquitous proceeding. The Court declared that the plaintiffs, though innocent assignees of the bond, and without notice, stood in the place of the obligee, so as to let in every defence, which the obligor had against the obligee at the time of the assignment or notice thereof, and therefore were not entitled to recover on the merits either in law or equity. They further declared that execution could not be levied on lands, which the defendant got by purchase after the judgment, if he aliened them before execu- tion bonajide. Verdict for defendant. jRatvfe for plaintiffs. Porter and Lewis for defendant. OF PENNSYLVANIA. 137 TILGHMAN C. J. The question in this case is, whether a judgment is a lien on lands purchased by the defendant after * the judgment, and aliened before execution issued. I am well satisfied that by the English common law such lands are bound. But it seems to have been differently under- stood in this state. In the case of Rundle and Murgatroyd v. Etwein^ in this Court, (December Term 1795) it was the opinion of all the Court, as appears by a manuscript note of Judge Teatesy that after purchased land was not bound. I feel myself obliged to pay great respect to this opinion, particularly as the late Chief Justices M'Kean and Shippen were then on the bench, who from their age and long expe- rience were well acquainted with the practice of early times. It is certain that in many instances the common law of Eng- land has been departed from in this country, from a sense of inconvenience, which has produced a silent practice^ not now to be traced to its origin. In truth it is of no great importance how the point is settled, so that it be but set- tled ; and I am induced to abide by the decision in Rundle v. Etwein, because I perceive that it has been acted upon in different parts of the state, so that to overturn it now might be injurious to purchasers who have relied upon its authority. I find by notes of the late Judge Smithy in my possession, that the law was laid down in conformity to Rundle v. Etwein, in the case of the Canal Company v. Nicholson in this Court, (March Term 1798,) and in Pleasants v. Boyer, Circuit Court, Westmoreland county, November 1802. There has been some difference of opinion respecting the common law on this point; but I have reason to suppose from a conversation which I once had with Judge Smithy that both he and Chief Justice Shippen found- ed themselves on the understanding which had long pre- vailed in this state. Be that as it may, my opinion is bot- tomed solely on the decisions which I have mentioned, and therefore I forbear from entering into any discussion of the common law principle. I am of opinion that the judgment should be affirmed. YEATES J. The question before the Court is, whether lands purchased by a defendant after judgment had against him, and sold by him bondfde before execution, be bound VOL. VI. S 1813. COLHOUN V, SNIDER. 138 CASES IN THE SUPREME COURT 1815. by the lien of the judgment, so that the same may be taken C OLHOUN in execution, in the hands of the fair purchaser. v . This subject has presented itself to roy consideration, SNIDER, both at the bar and on the bench, and I have given it all the reflection in my power. I shall now consider it upon principle, upon the English authorities, and how far such lien would be consistent with our laws and customs. Upon principle, it seems to me that whatsoever may be the efficacy of a judgment per se, it must take place at the time the same is rendered. The lien attaches at the mo- ment of entrv, and I can have no idea of its shutting at one period and opening at another, so as to embrace, of itself merely, property not originally bound. Its effects are im- mediate, and must be known and ascertained, when the judgment is given, and cannot depend upon subsequent events, unless it has been so provided by positive law. In a writ of debt, a man shall not have recovery of any lands but of those which the defendant hath the day of the judgment yielded ; and of chattels, a man shall have execution only of the chattels which he hath the day of the execution issued. Termes de la Ley, Voc. Execution. In point of authority, I fully agree that several of the elementary writers lay down the law, that execution may be sued of any land which the defendant had by purchase after the judgment, though he had aliened it before execu- tion. 1 RoL Abr. 892.pl. 16.; 10 Vin. Abr. 563. pi. 16.; SDanv. Abr. 317.pl. 16.; Sugderfs Vendors 306. The posi- tion in the first three writers rests on the single authority of the Tear Book of SO Edw. 3. 24. The note subjoined to Sug- den has enumerated some other cases, none of which upon in- spection will be found to warrant the doctrine in the extent laid down. Rolle seems to have been followed by the other authors, but how far he is himself supported by the autho- rity he relied on, must be collected from 30 Edw. 3. 24., a literal translation whereof follows : u A man had recovered 14 a certain debt against Sir "John de Moleyna, and had an " elegit. The sheriff returned that he had nothing. Moivb. () " prayed the capias. Fish, (b) When you have execution at (a) John de Motvbray, a Serjeant at Larta. Dugd. Chron. Sen. 47. (b} Will de Fishide, Serjeant at Law. Dugd. Chron. Ser. 45>. OF PENNSYLVANIA. 139 " your election, and you choose the elegit, you cannot now " have another execution. Mowb. A.her fieri facias, if the " sheriff returns that he has nothing, a man shall have " elegit. Seton (). Every elegit includes a fieri facias. " Finch. If at the time of the judgment rendered, he had " any land, but had aliened afterwards, you might have " execution of this ; and if he had purchased lands after- " wards, you have execution of this, for you have the u elegit, sicut alias et pluries ; and if he had no lands at the " time of the judgment rendered, this would be your own " folly that you would pray an elegit, and then when you " were apprized that he had nothing ; therefore there is no u mischief, but you shall not have the capias &c." Now it appears to me that this case not only does not sup- port the inference of the abridgers, but is directly opposed thereto ; because the Tear Book says, if at the time of the judg- ment rendered, the defendant had lands, but had aliened after' wards, of this you may have execution. If he had purchased lands afterwards, of this you may have exection by alias or pluries elegit. It cannot be denied that one may fairly sell his lands, pending a writ sued out against him, before judgment; but that he cannot defeat a judgment by a sale of the lands of which he was seized when the judgment was given. As to after purchased lands, the previous judg- ment in ray idea does not affect them, but they are bound by the delivery of the writ to the sheriff. Sir Nicholas Statliam () first attempted to methodize the law. It has been remarked that this venerable abridg- ment contains many original authorities, which are not ex- tant at large in the Tear Books. It is difficult to make out his law French from the frequency of his abreviations ; but the following is supposed to be a correct translation of the case- reported by him, title Execution, page 1. u Mich. 30 Edw. 3, one prayed execution by elegit, and " had it, to which the sheriff returned that he had nothing ; " wherefore he prayed a capias, and he could not have it. " But it was said to him that he might sue sicut alias, if the " tenant came to the lands or goods afterwards, but he shall () Seton, a judge of B. R. Ib. 46. and appointed Chief Justice, 31 EJv. 3. Ibid. 48. (b}He?vas appointed second Baron oft/ie Exchequer. Dugd. Citron. Ser. 68. 1813. COLHOUN r. SNIDER. 140 CASES IN THE SUPREME COURT 1813. COLHOUN V* SNIDER. " never have capias, nor fieri facias. And Thorpe (a) said ""that the reason is, because the entry is that such a " one comes and elegit his execution of the moiety &c. " which is the plaintiff's high execution &c. v Fitzherbert in his Grand Abridgment^ tit. Execution, 126, is almost a literal copy of it, and has assisted me in my translation. It is obvious on comparison that Statham and Fitzherbert did not abridge this case from the Tear Book ; and that they put the after purchased lands and goods upon the same footing, as to the effect of the alias elegit. Respectable as the name of Rolie may be, I cannot avoid observing, that when he cites an authority for his doctrine, we are bound to exa- mine the accuracy of his extract. The plaintiff's counsel have urged another argument from the usual form of writs of elegit, which directs the sheriff to deliver one half of the defendant's land, which he had at the time of the judgment given, or ever after, (or at any time since) upon a reasonable price or extent. At com- mon law, lands could not be taken in execution on a judg- ment for debt or damages, unless in special cases. The Stat. of Westm. 2. c. 18. (13 Edw. 1,) was the first act which subjected lands to the execution of a judgment or a recognizance. 3 Co. 11 b. 12 a., Wright's Tenures 17O, 171. The statute directs that " Cum debitum fuerit recupe- " ratum, quad vicecomes liberet ei medietatem terrce suce, " quousque debitum fuerit levatum per rationabile pretium, " vel extentam, et si cjiciatur de illo tenemento, habeat re- " cuperare per breve novas disseisince, et pontea per breve " redisseisincc si necesse fuerit." 1 Ruff. Stat. 93. Ld. Coke in his 7 Rep. 39 a, states that by construction of law the medietatem terras is of all the lands which the debtor had at the time of the judgment given, or at any time after. If either he or the writ had gone further, and said " though *' the lands after acquired, had been sold by the debtor sub- ** sequent to the judgment," I should have thought the ar- gument conclusive of the law of England ; but as I have before asserted, I understand the law to be, that the after purchased lands of which the debtor stood seized at the time of the delivery of the elegit to the sheriff, became thereby (a) Will, de Thorpe was appointed Chief Justice ofB. R. 20 Edw. 3. OF PENNSYLVANIA. 141 subject to the debt, in the same manner that all his personal property would then become. Lord Coke too, in his 2 Inst." 395, commenting on the words medietatem terrce suce in the statute, lays it down expressly " this is to be understood of *' such lands as the defendant had at the time of the judgment "given, or of the recognizance knowledged, unless it be con- " veyed away by fraud and covin to deceive his creditors." So in Co. Lift. 102 a. upon judgment in debt, the plaintiff shall not have execution but only of that land which the de- fendant had at the time of the judgment, for that the action was brought in respect of the person, and not of the land. And again in 7 Co. 171 a. the freehold and inheritance which a common person has at the time of judgment is bound thereby, but in the king's case from the time the party becomes the king's debtor. It has been objected by the plaintiff's counsel, that these different passages in Lord Coke's works, mean nothing further than that lands sold bond jide pending the writ, are not bound by the judgment, but that his intention did not extend to after purchased lands. I can- not accede hereto, thinking as I do, that it would be using an unwarrantable freedom with plain language. Sir W. Blackstone likewise, in his 3 Comm. 418. 419., speaking of the stat. of 13 Ed. \. c. 18, says, if the goods are not sufficient to pay the debt, then the moiety or one half of the defendant's lands which he had at the time of the judgment given, is nlso to be delivered to the plaintiff. And to this point he cites 2 Inst. 395, above stated. On a recovery in personal actions, execution shall be of any land which the party had on the day of the judgment rendered ; but for chattels, only those which he had the day of the execution sued. Finch of Law, 471. If debt be brought at common law on a recognizance, he shall have only judgment of the lands diejudicii redditi on the original writ ; but if by scire facias founded on the record, then he shall have execution of the lands which the conusor had on the day of making the recognizance. Dyer 306. a. b. Exe- cution shall only issue of the lands had at the time of the judgment rendered. 6 Edw. S.fol. 15. pi. 14. Scire facias. Per Shard; you shall have execution but of the lands which he had on the day of the judgment rendered. 6 Edw. 3. fol. 17. pi. 23. Scire facias. 1813. COLHOUK V. SNIDER. CASES IN THE SUPREME COURT 1813. COLHOUN V. SNIDER. Besides the several authorities which have been already "cited, many others may be shewn, restricting the liens of judgments under the Stat. of 2 West. c. 18. ; but I shall re- fer generally to 2 Bac. Abr. 363. 364., Wood^s Inst. 6O7 (edit. 0/1738.), Cro. Car. 149., Cro. Jac. 451, 452., Kdlw. 87 a., F. N. B. 267. /o/. 59f., 2 Hen. 4. 14 a. It is moreover worthy of observation that though Ld. Cli. Bar. Coinyns, in his 3d Dig. 307. (1st edit.) tit. Execution, D. 1., cites the case of 30 Edw. 3. 24., in two instances, yet he wholly omits the deductions drawn from it in 1 Roll. Abr, 892. pi. 16, and confines the liability of the lands to those which the defendant had at the time of the judgment rendered. The case of the King v. Death, Cro. Jac. 513. Mich. 15 Jac. in the Exchequer, which was not cited upon the argument, has been put into my hands by a learned friend, who observed that it required an answer. It is short, and runs thus : " It was found by inquisition that one York had reco- " vered in an action upon the case for words against John. " Allen, five hundred pounds. Afterwards John Allen and. interest by way of damages, unless special circumstances NICHOLS, took the case out of the justice of such finding? In assump- sit on a parol demise, the same. Were it otherwise, it would not be pursuing the equity which the act of 21st March 1772 gives under a proceeding by distress, when the tenant ultimately appearing in fault, the Court will relieve on the replevin bond, only by his doing that which to right and justice shall appertain. Distraining is a harsh remedy, and except in towns and cities it is little resorted to, and this may be a reason why it should be the usage to allow interest; for where a harsh but instant remedy is waived in favour of the tenant, equity would say there is the greater reason to allow interest. In England, equity will decree interest upon arrears of an annuity or rent charge, where there is either a clause of entery or nomine pwncc, or some penalty upon the grantor which he must undergo if the grantee sued at law ; but not for the rents and profits of an estate where the sum is uncertain. Cases Temp. Talbot 2. Interest in all cases must be at the discretion of courts and juries, except where a general rule can apply as in the case of a specific sum due. The legal interest is assumed in these cases, as the measure of damages for the use of money, or the detention of a debt. The reason was absurd, which has been given some- where, that rent shall not carry interest, because it is itself interest. It is in lieu of profits of land, and so is interest upon money in lieu of the presumed or stipulated profits of it. It was the nature of-military or socage services, and the remedies for them, that precluded interest, or rendered the allowing it unnecessary at an early period ; and it required length of time to accommodate new rules to new circum- stances. All these reasons have long ceased, and in this country especially, why any distinction should be made as to rents from demands of any other nature, I do not preceive. Whether allowable in the case before us, as in all other eases, may depend upon the circumstances of it. There are exceptions to al. general rules. I shall apply myself to examine the question whether the judgment ought t stand or be reversed, on the ground of allowing interest, or ior other reasons. It would seem to be OF PENNSYLVANIA. 171 implied in the charge of the Court, that certain covenants 1813. on the part of the landlord might not have been performed OBEKMYER by him ; for it is left to the jury to say, whether or not v. they hnd been performed. But at the same time these cove- NICHOLS. nants are stated to be minor and subordinate, and not going to the essence of the contract, nor to the whole of the consi- deration, so as to defeat the rent in toto, in case they or any of them were not performed by the landlord. It ought to have been left to the jury to say, as well, whether these were minor and subordinate, and not going to the essence of the contract, as whether they were or were not perform- ed. The judge had no right to say that they were minor and subordinate, so as to exclude the jury from a conside- ration of this, which, by taking it upon himself to lay it down as a matter of law, as he would seem to have done, would exclude. But it is more material, what he has given in charge in regard to what respects interest. Who made the first default in this case ? The landlord. Certain covenants, however minor and subordinate, he had not performed. What could his tenant do in this case ? Could he know what to tender ? That would be taking upon himself to estimate the deficiencies. Did the landlord offer to leave ad arbi-> trium boni viri to estimate all deficiencies ? As the phrase is in common parlance, did he offer to leave it to men, to say what should be deducted on this account? We hear nothing of this. The tenant was justifiable in waiting, until the landlord should establish a claim which he had rendered questionable as to the extent, by his own act. It was the de- fault of the landlord, which rendered it necessary to have recourse to some tribunal private or public, of their own choosing or otherwise, to ascertain what in justice, if any thing, was due. All the consequences ought to fall upon him the landlord, and at least the lying out of his rent if any due, until that should be ascertained. Did the tenant, when called upon by a judicial tribunal, or otherwise, affect delay, or procrastinate by making use of the forms of the law to gain time. We hear nothing of this. I see therefore, no obligation on the tenant to pay until the balance was ascertained, and he could know what to tender or pay. Inte- rest upon the balance from that time, and not from the time the rent was payable, ought, or could in equity have been 172 CASES IN THE SUPREME COURT 1813. v. NICHOLS. given by the jury. I say equity, because where the question of interest is not fixed by positive law, or general rule, or by the express stipulation of the parties, it is a matter of equitable consideration to grant it. It is recoverable at the discretion of the Court or jury. Putting myself in the place of the tenant in this case, I cannot but feel his embarrassment in not knowing what to pay, or how to free himself from the debt. What could he do with the money in the mean time ? Not knowing at what time he might be called upon by adversary process, to have it levied on him, could he use it ? The more natural pre- sumption is that he kept it by him. It is the presumption that he ktpt the whole rent lying by him the whole time ready to pay it, not knowing whether the Court and jury would allow him to defalcate any thing in lieu of the breaches of covenant on the part of the landlord. In this case it might be a question of some subtlety, whether in consequence the tenant might not have a right to turn the tables upon the landlord, and demand that interest be allowed him, the tenant, on the difference between the rent payable and the balance found. This on the set off. For it is the legal presumption, that he had the rent ready to be paid at every instant of the time, from that at which it was due ; and nothing appears to negative this, unles a presumption which might arise from his being a man in such business as might require the use of money, and render it productive at a short time or a long. This is the case with bankers or merchants, or it may be with manufacturers of any kind ; but not with a trembling tenant, upon whom a small rent coming unawares at the moment not provided for, might sweep away his small means, and break him up. For I lay it down as a general rule, that when it can be presumed that a man who with- holds money, has made use of it in the mean time, it is natural justice that he allow for the use of it. I cannot presume this in the present case, nor am I to consider as passing for nothing, the trouble and expense this tenant has been put to in attending court, and employing counsel, sa as not to be an equitable bar to a demand of interest. It is the gist of the cause with me, that the landlord made the first default. As to the covenants not performed being- minor and subordinate, these are indefinite terms. De mi- OF PENNSYLVANIA. 173 ntmis non curat lex is a maxim, and I would not put on 1813. spectacles, to look at breaches in matters unsubstantial and QBERMYER of no great amount one way or the other. But, whatever v. was substantial I would look at; and putting myself in the NICHOLS. place of the tenant, I would consider what rendered this contract less profitable or less convenient than it ought to have been. It is of the utmost consequence in point of mo- rals, that the contracting parties should be held to a strict per- formance, and from a landlord to a tenant especially. In the case of Washington, writing to an agent respecting tenants, who alleged the non performance of something which on the part of the agent ought to have been done, " do them *' justice, said he, and give them heaped measures." This was a golden saying, and worthy of a great mind. But it is not only the most honourable, but always the safest policy. No man can prosper in life without a disposition to do all that can be required of him in discharge of his obligations to men. Even with this disposition of mind or determina- tion, a great error is looking all on one side, and the being blind of an eye, if I may use a figure, so as not to see with equal advantage what is on one side and what on the other. Some men are of this cast from an inordinate self-love and defect of judgment ; but it is the policy of the law to correct their understanding and their vision, and teach them to be honest. Discite justitiam monit't, et non temnere divos. In foro conscientice there is no great difference between larceny, and defrauding of what is due ; and what can we call it in a moral point of view, if any thing is to be done as a condition precedent in the nature of a contract, and it is not done. If it is in a matter at all substantial, I would strongly incline to defeat a recovery, or resist a claim on the part of the defaulter, altogether. In the present case I would have it left to the jury to say whether substantial, and if so, that the landlord should recover nothing. The yeomanry of the country are the proper judges of these things. A judge may be well skilled in law, as far as regards abstract princi- ples ; but as between landlord and tenant, in what shall be deemed substantial in putting the premises in repair in par- ticulars specified, and whether these shall be considered substantial or of minor concern, 1 would give but very little 174 CASES IN THE SUPREME COURT 1813. for his notion. Few judges have been tenants, more have v. NICHOLS. OBERMYER ^ een landlords, and this is not a matter I would leave to them ; at least I would prefer upon this point a jury of the country. What though the tenant in this case had given no- tice, and expressed an intention of relinquishing the premises at the end of the term, the presumption is that it was in consequence of these defaults on the part of the landlord, and goes to prove him deficient in what he undertook to do, It is true, that the warmth of the heart is not always a guide to the judgment of the head, for indignation may be from a mistake of facts and the legal inference ; but it would srem to me, that in this case the landlord might be satisfied in escaping damages, and losing the rent. At all events I would leave it to a jury to consider this under all circumstances, and it would not seem to me that in this case, it was put in point of the law to the jury, so much to the advantage of the tenant as it ought to have been. I am therefore inclined to reverse the judgment. Judgment affirmed. BLACKBURN and another against MARKLE. Chambersburg, IN ERROR. ^Monday, October 4. T7' Upon a report Ij RROR to the Common Pleas of Huntingdon. of referees finding a sum ment on the sci. fa., they would compel the defendant to ARI give up the articles of exchange, which had not been done* Huston in reply, said that the agreement of reference was in fact a new action: judgment had been entered in the ejectment, and this was a proceeding entirely collateral to it. In what form could the scire facias have issued ? How call on the plaintiff in ejectment to shew cause why he did not pay money to the defendant ? TILGHMAN C. J. This agreement was entirely collateral to the action. It would have been better to have entered a new- action, in which the defendant should have been plaintiff. Being made however by rule of Court, the party injured by non-performance of the award, might perhaps have remedy by attachment, but as to that I give no opinion. That is the mode by which reports under rules of Court are enforced in England, and could have been enforced here, but for an act of assembly, which authorizes the entry of a judgment in the same manner as upon the verdict of a jury. Act for Defalcation, 1705. But suppose that upon the verdict of a jury, a sum of money should be found due from the plain- tiff to the defendant. At common law no judgment can be entered for the defendant to recover any money from the plaintiff. But here again our act of assembly alters the com- mon law. In such case the defendant may have a scire facias against the plaintiff, on which he may have judgment and execution for the sum found in his favour. Reports of re- ferees being put upon the same footing as verdicts, I do not see in what manner the defendant can support his proceed- ings. If his case falls within the act of assembly, he should have taken a scire facias, or as I have intimated, perhaps he might have had remedy by attachment. But even if it had been a proper case for an attachment, the Court would not have awarded it without inquiring whether the party moving for it, had done on his part every thing which he ought to have done, and in this case it appears that some- 176 CASES IN THE SUPREME COURT 1813. thing was to be done by the defendant. He was to deliver BLACKBURN U P tne articles of exchange. Consider the matter in what etal. view you will, it appears to me that the judgment and exe- cution were erroneous. I am therefore of opinion that they MAUKLE. g reversed> YEATES J. and BRACKENRIDGE J. concurred. Judgment reversed. Chambersburg, The Commonwealth against ALEXANDER October 4. Prisoner dis- TTABEAS CORPUS to the jailer of Franklin county. By SeTarrantTas the return it appeared that the ntaer/Jtetf Teach, issued by the had been committed by a precept from the commissioners county commis- ' . , ionerstocoiiectaof Franklin county, having no property to make satisfaction edno^roSJng'of a fi e referred to therein. The precept was dated the by virtue of which 24th of February 1812, directed to the collector of Mont- it was issued ; nor * . was any shewn at gomery township, commanding him to go to the house or if the e procledbg ttne several persons named in a schedule annexed, of whom of a court martial Teach was one, " as delinquents for not performing the late imposing it, had r ..... t . rr i been shewn, the " tour or militia duty belonging to captain Hayes s company SXrpHsoner 6 " of riflemen, and collect and pay the sums with which they to his action, and" stand respectively charged " (48 dollars each person) " in not have decided summarily upon " the same manner as the county tax is directed by law to "be collected and paid." Dunlop for the prisoner, argued both against the suffi- ciency of the commitment, and the legality of the imposi- tion of the fine. Chambers contra. TILGHMAN C. J. delivered the Court's opinion. It appears from the return to this habeas corpus, that Teach is held in prison by virtue of a warrant from the commissioners of Franklin county, for the collection of a militia fine. The warrant contains a naked precept to col- lect the fine, without mention of any proceeding whatever, by virtue of which it was issued. The commissioners have no authority to issue a warrant without some foundation, and as no foundation has been shewn either on the face of the warrant or otherwise, although the commissioners have OF PENNSYLVANIA. 177 had notice of the habeas corpus, it is the opinion of the 1813. Court that the prisoners should be discharged from confine- COMMON- ment. It will be understood, that we pass no opinion on the WEALTH legality of the imposition of this fine. That being a matter v. in which many persons are concerned, we should think it ALEXANDER - most proper for those who mean to contest it, to make it the subject of an action, in which the matter may be fully inquired into, and solemnly decided. Prisoner discharged. BROWN against SCHEAFFER. IN ERROR. - Saturday October 9. TN this case, which was a writ of error to Franklin if cause be . iii r. rr referred to arbi- * county, it "appeared by the record, that bcheajfer the trators, it is not plaintiff below, had entered a rule of arbitration, and the there'shouU/be defendant not attending according to notice, he and the an y dedar a t . ioi ?5 )r . - . statement filed by prothonotary named arbitrators, who, at a meeting of which the plaintiff, or the defendant also had notice but omitted to attend, found Xelw^uT 11 an award for the plaintiff. The award simply found so she . w the cause of action much money for the plaintiff; and there was neither decla- ration nor statement filed by the plaintiff, to shew what was his cause of action, which was the error relied upon in this Court. Chambers and Duncan for the plaintiff in er^gr. Crawford contra. TILGHMAN C. J. The plaintiff in this case entered a rule of reference in an action on the case, under the "act regu- lating arbitrations," passed iJOth March 1810. The pro- ceedings were all ex parte^ as the defendant did not think proper to join in the choice of the arbitrators. A report was made in favour of the plaintiff, upon which judgment was entered, and the error assigned is that there was no decla- ration or statement filed, by which the cause of action might appear on the record. At the opening of the case, I was struck forcibly with the inconvenience which might result from such proceedings, and I am still sensible of them ; but upon considering the act of assembly, I find no power VOL. VI. Z 178 CASES IN THE SUPREME COURT 1813. in this Court to remedy the evil. The law has introduced BHOWN a new m de f trial, by which the proceedings may be with- v, drawn from the Court, and carried before arbitrators, imme- SCHEAFFER. diately after the commencement of the action. It is not required that a declaration or statement should be filed of record, nor are the arbitrators required to keep a record of tneir proceedings. The legislature seem to have supposed that no injustice could be done, because either party might appeal to the Court in which the suit was instituted, and then the action would be conducted with the usual formalities. But even supposing both parties to be satisfied with the award, it may be of great importance that the cause of action should appear on record, lest another action should afterwards be brought for the same cause. It is not sufficient however for the plaintiff to point out an inconvenience. This Court is vested with no general power of supplying defects in the acts of the legislature. Still it is always to be expected, that when defects occur in practice, those who have the power, will apply a speedy remedy. Before the present system of arbitration was introduced, it had been decided by this Court, that in case of a voluntary reference, judgment might be entered on the report of the referees without filing a declaration. That principle is decisive of the present ques- tion. The necessity of filing a declaration is no greater now than it was then. I hope a law will be passed, obliging the plaintiff in every case to place his cause of action on the re- cord. In the mean time is will be prudent for defendants to request the arbitrators, to call on the plaintiff for a rvritten statement of the cause of action to be signed by him, and authenticated in such a manner as will make it evidence, in case it should be necessary to ascertain it at a future time. My opinion re, that the judgment should be affirmed. YEATES J and BRACKENRIDGE J. concurred. Judgment affirmed. OF PENNSYLVANIA. 179 1813. WHITE against The Commonwealth IN ERROR. Saturday, * 78 October 9. . TT* RROR to the Oyer and Terminer of Cumberland An i n( i; ct mpnt ' S Hi county, to bring up the record of an indictment and Jw-gng th-ftthe judgment for murder. certain stone which be held, in and upon the The indictment charged, that Edward 'White, " not having right He of the . o i_ i r =v / h ea<1 ' l " e '' e * "the fear of God before his eyes &c., on the 23d ot yw/z/ ceaser j > f c | ( mios- " 1812, with force and arms, at &c,, in and upon one ^wwrfJSJ^taw.S "Sampson, in the peace of God &c. then and there being, that the defen. " feloniously, wilfully, and of his malice aforethought, did stone aforesaid, " make an assault ; and that the said Edward White, with a^^ d e in " certain stone of no value, which he the said Edward White right side of tHo , . , t i i i head, feloniously " m his right hand then and there had and held, in and upon &c . did strike, "the right side of the head, near the right temple of him ^ r c ^J at the " the said Samuel Sampson, then and there feloniously, wil- defendant threw . , i,., i \ the stone and " fully, and of his malice aforethought did cast and throw ; stru ck the de- " and that he the said Edward White with the stone aforesaid, ce ^ l n - ndict . " so as aforesaid cast and thrown, the aforesaid Samuelment for murder, . , i L j r i_ i i , it is not necessary Sampson, in and upon the right side 01 the head, near the so to describe " right temple of him the said Samuel Sampson, then "there feloniously, wilfully and of his malice aforethought, it be murder of ,,.,., , ... , .io .the first or second " did strike, penetrate and wound, giving to the said oamttf/ degree. Nor is it " Sampson, by the casting and throwing of the stone a " said, in and upon the right side of the head, &c. one mor- should conclude " tal wound of the length of two inches, and of the depth of f the act of as- " one inch, of which said mortal wound, the said Process must go "Sampson then and there instantly died; and so the juror* in the name of "aforesaid, upon their oaths &c. say that the said &!)&/ wea ith of Pfenn- " White, him the said Samuel Sampson, in manner and form"y. ra ''' v '. b " t 7 ^ _ . |l ls immaterial in, "aforesaid, feloniously wilfully and of his malice afore- what part of the " thought, did kill and murder, against the peace and dignity mouwcaith is in" " of the Commonwealth of Pennsylvania." ' traduced, so that the command is given in its name. Precepts for Courts of Oyer and Terminer may issue under tiie private seals of the judges ap- pointing such Courts : No seals are required for the Courts themselves. hi a precept to the sheriff to summon the grand and petit jury, it is sufficient to command him to cause to come before the judges 24 good and Icnvftil men, without commanding him iu what man- ner they are to be drawn or selected. A precept to the sheriff, commanding him to cause to come &c. " Qigood and lawful men of the 'body of the county of C. aforesaid, then and there to inquire, present, do and' perform tueli things as on behalf of the Commonwealth shall be enjoined them, and also a competent . imher of sober and judicious persons, and none other, as jurors for the trial of ail issues &c.," contains 10 command to convene the petit jurors from the body of the county of C. And therefore if it docs 101 appear by the return or the panel, that the petit jurors in fact came from the body ol'thu coun- ty, the error is fatal. 180 CASES IN THE SUPREME COURT. 1813. WHITE v. COMMON- WEALTH. The precept to the sheriff began, " Cumberland county '"ss. I jfames Hamilton^ President of the several Courts " of Common Pleas in the ninth district, consisting of &c. " and by virtue of my office, of the Court of Over and Ter- 44 miner and general gaol delivery for the trial of capital and 44 other offenders therein, and John Creigh and James Arm- 44 strong, esquires, associate judges of the same Court, in " the said county of Cumberland, to the sheriff of Cumberland 44 county, greeting: In the name and by the authority of the 44 Commonwealth of Pennsylvania, you are hereby command- *' ed, that you cause to come before the president and asso- 44 ciate judges of the same Court in the county of Cumber- 44 land, or any two of them, the president being one, on the " &c. at Sec. in &c. 24 good and lawful men of 'the body of the 44 county of Cumberland aforesaid, then and there to inquire, * 4 present, do and perform such things as on behalf of the 44 Commonwealth shall be enjoined them, and also a compe- " tent number of sober and judicious persons, and none other, " as jurors for the trial of all issues, at a Court of Oyer and 44 Terminer and general gaol delivery, which number shall " not be less than 48, nor more than 60 : And also that you " make known to all justices &c. of the said county, that " they be then and there with their records &c. &c., and 44 that you yourself and your ministers, be then and there in 44 your and their proper persons, to do those things, &c., and " have you then and there this writ, together with a panel " thereunto annexed, containing the Christian and surnames "and places of abode of those jurors. Given under our 41 hands and seals, at Carlisle, the 7th of December 1812." The sheriff at the day returned his writ with a panel an- nexed, containing the names &c. of the jurors, and the townships where they lived, but in no place mentioning the county. The defendant being found guilty of murder in the first degree, various objections were taken to the indictment and process, by his counsel, which being overruled by the Court below, and sentence of death having been passed, this writ of error was with the consent of the attorney general issued. Watts and Duncan for the plaintiff in error, took the fol- lowing exceptions to the record. OF PENNSYLVANIA. 181 1. That the process to summon the grand and petit jurors, was unconstitutional, because it was in the name of the judges, and not of the Commonwealth. 2. That the process was under the private seals of the judges, whereas it should have been under the seal of the Court. 3. That the sheriff was not commanded to have the jury drawn according to law. 4. That the sheriff was not commanded to cause good and lawful men of his bailiwick to be summoned as petit jurors, but merely sober and judicious persons; and it did not appear by the record that they were taken from his bailiwick. 5. That the indictment was absurd, as it charged the of- fence to consist in throwing with a stone, &c. and did not lay the charge of striking, positively and certainly : and that it was defective, in not concluding against the form of the act of assembly. Carothers for the Commonwealth. TILGHMAN C. J. Edward White has been convicted of murder in the first degree, and judgment of death passed against him by the Court of Oyer and Terminer for the county of Cumberland. By permission of the attorney gene- ral, the record has been removed to this Court, and several errors have been assigned, on which we are now to deliver our opinion. The exceptions which have been taken, go both to the indictment and the process. To the indictment it is objected, first that the offence is not charged with a suf- ficient certainty, and next that it does rot conclude against the form of the act of assembly. 1. It is said in the indictment, that Edward White, -with a certain stone which he held in his right hand, in and upon the right side of the head, near the right temple of Samuel Sampson, feloniously, &c. did cast and throw ; and that the said Edward White, with the stone aforesaid, so as afore- said cast and thrown, the aforesaid Samuel Sampson in and upon the right side of the head near the right temple of him the said Samuel Sampson, feloniously &c. did strike &c. The objection is, that it is not said in the first instance, that White threw the stone at all, but only that he threw with the stone; and that the subsequent averment that he struck 1813. WHITE v. COMMON- WEALTH. 182 CASES IN THE SUPREME COURT 1813." WHITE v. COMMON- WEALTH. Sampson with the stone, so as aforesaid cast and thrown, 'does not amount to a positive assertion, because it refers to the casting and throwing as aforesaid, when in fact it had not been said before that he did cast and throw it. The ac- tion of White is not as well described as it might have been ; but upon the whole it is sufficiently alleged, that he threw the stone and struck Sampson with it. Casting and throwing with a stone, cannot be understood as using a stone for the instrument of throwing; it was the object thrown, and the cast or throw was made upon the right side of the head of Sampson. This to be sure is an awkward kind of expression, and not very good grammar ; but in the words which follow it is positively asserted, that White struck the deceased with the stone cast as aforesaid. Taking it altogether then, it sufficiently appears that White threw a stone, with which he struck Sampson, and thus killed him. 2. Where a statute creates an offence, the indictment must charge it as being done against the form of the statute. But where the statute only inflicts a penalty upon that which was an offence before, it need not be laid to be against the form of the statute, because in truth the offence does not violate the statute. That this is the rule, was decided in the case of the Commomvealth v. Searle, 2 Blnney 339. The only question then will be, was murder of the first degree an offence created by act of assembly. This depends on the second section of the act " for the better preventing of "crimes &c." passed 22d of April 1794.- After reciting that the several offences which are included in the general denomination of murder, differ so greatly in degree of atro- ciousness, that it is unjust to involve them in the same punishment, it is enacted, that all murder which shall be perpetrated by means of poison, &c. &c. shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree, and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in their ver- dict whether it be murder in the first or second degree ; but if such person shall be convicted by confession, the Court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. Now this act does not define the crime of murder, but OF PENNSYLVANIA. 183 refers to it as a known offence ; nor so far as concerns mur- der in the first degree, does it alter the punishment, which"" was always death. All that it does, is to define the different kinds of murder, which shall be ranked in different classes, and be subject to different punishments; It has not been the practice since the passing of this law, to alter the form of indictments for murder in any respect; and it plainly appears by the act itself, that it was not supposed any alteration would be made. It seems taken for granted, that it would not always appear on the face of the indictment of what de- gree the murder was, because the jury are to ascertain the degree, by their verdict, or in case of confession, the Court are to ascertain it by examination of witnesses. But if the indictments were so drawn as plainly to shew that the mur- der was of the first or second degree, all that the jury need do, would be to find the prisoner guilty in manner and form, as he stands indicted. In the case of the Commonwealth v Joyce and Mathias, (Oyer and Terminer, Philadelphia, Fe- bruary 1808, before C. J Tilghman and Judge Smith) who were convicted of the murder of Sarah Cross, it was moved in arrest of judgment, because the indictment did not charge the murder to have been committed by a wilful, deliberate, and premeditated killing, as expressed in the act of assem- bly. But the motion was overruled, and the murderers exe- cuted. I am therefore of opinion that the indictment is good. The exceptions to the process remain to be considered. The precept to the sheriff is in the names of the president of the district, and two of the associate judges of the Court of Common Pleas, under their hands and seals. The style is, " the judges to the sheriff greeting : In the name and by u the authority of the Commonwealth of Pennsylvania, you " are hereby commanded &c." It is objected 1. That the style should have been u the Commonwealth to the sheriff " greeting." 2. That the precept should have been issued under the seal of the Court of Oyer and Terminer. 3. That the sheriff should have been commanded to have the jurors selected and drawn in the manner directed by law. 4. That the sheriff is not commanded to return petit jurors of the county of Cumberland, nor does it appear on the record that they were of that county. These objections shall be consi- dered in their order. 1813. WHITE V. COMMON- WEALTH. 184 CASES IN THE SUPREME COURT 1813. WHITE v. COMMON- WEALTH. 1. It is declared by the present constitution of Pennsyl- " vania, art. 5. sec. 12, that "the style of all process shall " be, the Commonwealth of Pennsylvania ;" and this provi- sion is copied from the twenty-seventh section of the frame of government of 1776. The expression of the style being in a certain way, does not convey a precise idea. It is said by the counsel for the prisoner, that the process shall begin with these words, and in general, process issuing from Courts of record does begin so; and yet the substantial intent of the constitution would seem to be satisfied, if the command is given in the name and by the authority of the Common- wealth, in whatever part of the precept that command is expressed. In the same sec. tion of the constitution, where it is intended to direct the place in which particular expressions shall stand, it is clearly pointed out, " all prosecutions shall " conclude against the peace and dignity of the Common- " wealth." It is now thirty-seven years since the formation of the constitution of 1776, and during all that time the precepts for Courts of Oyer and Terminer have been in the same form as this. Courts of Oyer and Terminer were held soon after the making of that constitution, so that the con- struction first put upon it was contemporaneous with the constitution itself, and no doubt adopted by some of those who were framers of it. A construction thus commenced and thus continued is entitled to the highest respect. The im- perfection of language causes much uncertainty in writings which have been drawn up with the greatest deliberation. It is of great importance that the construction should be fixed as soon as possible, and when once fixed, it should be adhered to, unless palpably wrong, and productive of inconvenience. It is of no consequence in what part of the process the Commonwealth is introduced, so that the command is given in its name. This is done in the precept under considera- tion, and as it is agreeable to constant usage, I am of ^pi- nion that it is sufficient. 2. Much of what has been said will apply to the second exception. The usual form has been under the seals of the judges. Precepts that issue or are supposed to issue from a Court of record during its session, are under the seal of the Court. But this is not the case with precepts for a Court of Oyer and Terminer. Emergencies may arise, requiring such OF PENNSYLVANIA. 185 Courts to be held on a sudden. There are no particular pe- riods appointed by law for the holding of them. The judges " may appoint them at their pleasure, and this appointment need not be made during the sitting of any Court. As for a seal, there is no occasion for a particular one for these Courts. The judges of the Supreme Court have no seal for the Courts of Oyer and Terminer held by them ; and this is the case in many instances with the judges of the Common Pleas. There is no weight therefore in this objection. 3. The command to the sheriff is, that on a certain day he cause to come before the judges twenty-four good and lawful men &c. This is the accustomed and the best form. Entering into details is dangerous, because something may be omitted, and it is unnecessary, because the sheriff must be supposed to know his duty, and is bound to perform it. If he neglects any part of it, those whom it concerns may set the process aside. 4. The fourth and last exception is that it does not ap- pear that the petit jury came from the body of the county, and if well founded it is fatal. The command to the sheriff is that he cause to come &c. " twenty-four good and lawful " men of the body of the county of Cumberland afore- " said, then and there to inquire, present, do and perform " such things as on behalf of the Commonwealth shall be " enjoined them, and also a competent number of sober and "judicious persons, and none other, as jurors for the trial of " all issues fcfc." Why the words good and larvful men, ap- plied to the grand jurors, are dropped, and sober and judi- cious persons put in their place as to petit jurors, I know not. The act of 29th of March 1805, does indeed direct that jurors shall be sober and judicious persons ; but the words good and lawful men comprehend that and every other re- quisite. I do not think however that this change of phrase is material; but are the words " of the county of 'Cumberland?^ ', which follow "good and lawful men", connected by the co- pulatives and also, with the words next succeeding " acorn- " petent number of sober and judicious persons &Pc. ?" The descriptions of the two sets of jurors, are each complete and independent of the other ; and the use of the copulative ex- pressions is only to shew that the sheriff is commanded to cause to come &c. both one jury and the other. How this VOL. VI. 2 A 1813. WHITE v. COMMON- WEALTH. 186 CASES IN THE SUPREME COURT 1813. WHITE v. COMMON- WEALTH. form crept in among us, I am at a loss to imagine. I have ex- amined the printed entries of criminal proceedings, and find them quite different. They particularly mention that each jury is to come from the body of the county. The return of the sheriff makes no mention of the county ; he endorsed on the precept, "jury summoned as within commanded, as per " list annexed." Annexed is a list of the jurors mentioning the townships in which they reside, but nothing is said of the county. One of the townships is Allen. I know that there are townships of that name in several counties, and it may be so with others. If I were allowed to conjecture, I should have no doubt but that the whole jury was of Cum- berland county ) and were it a civil proceeding, I would try hard to get over the objection. But -were life is at stake, I dare not endeavour to be ingenious. Having attentively considered the precept, it appears to me, that without tortur- ing it we cannot understand that the petit jury were to be of the county of Cumberland. I am therefore of opinion that the judgment was erroneous, and should be reversed. YEATES J. I feel myself under the painful necessity of dissenting from the opinion delivered, in one point. Amongst the errors assigned to reverse the judgment up- on the conviction on this indictment, none of them strike my mind with difficulty, except that which arises from the form of the precept to summon the juries. I do not conceive it to be necessary that it should be under a public seal. I know of no law which provides for a seal of the Court of Over and Terminer. The Judges of this Court, by virtue of their offices, are justices of Oyer and Terminer and general gaol delivery in the several counties; and yet previous to the American revolution, as well as under the former constitution of 1776, and the present one of 179O, such precepts have issued under the hands and seals of the individual justices of the Court, and many convictions have taken place under them. But it is objected, that by section twelve of article five of the present constitution, it is provided, " that the style of all *' process shall be, the Commonwealth of Pennsylvania ; and " all prosecutions shall be carried on in the name and by " the authority of the Commonwealth, and conclude against " the peace and dignity of the same." OF PENNSYLVANIA. 187 It is true, the precept here commences in the name of the president of the district, and two of the associate judges of the court ; but it is directed to the sheriff, and in the name and by the authority of the Commonwealth of Pennsylvania expressly he was commanded &?c. This appears rather a ver- bal criticism than a substantial objection, and it weighs much with me that it pursues the form used in this Court until within these few years, under the constitution of 1790. The greater difficulty remains to be got over. The sheriff was commanded that "he should cause to come &c." The objection is that though the sheriff is directed to summon the grand jurors of the body of the county of Cumberland^ yet that direction does not extend to the traverse jurors. I think the words "good and lawful men of the body and " county of Cumberland" by fair construction may refer to the persons who are to be summoned and returned as jurors for the trial of all issues. The directions as to the two sets of jurors are connected together by the conjunctions and also , which refer to the body of the county from whence the she- riff is to cause those jurors to come. The sheriff has sum- moned them accordingly, and has obeyed the injunction of the writ by annexing a panel thereto in his return, containing the Christian and surnames, additions and places of abode of the jurors. I feel every tenderness for unfortunate prisoners, that they should be subjected to no difficulties which the law does not permit; but I do not feel myself justified in. pronouncing that there is a fatal error in this venire facias, which renders the judgment illegal. The exact correspon- dence of the precept which issued in the present instance, to other precepts issued by the Courts of Oyer and Terminer and general gaol delivery of this district, operates strongly on my mind, that I should not declare this venire facias to be illegal, unless upon the most solid and substantial grounds. I am strongly inclined to think that this venire facias for the Court of Oyer and Terminer, has pursued the form used by the judges of this court sitting at Oyer and Terminer ; but having no access here to those records, I would not be understood to express a confident sentiment thereon.* I consider the indictment as inartificially drawn, but not 1813. WHITE v. COMMON- WEALTH. On my coming to Philadelphia, and searchingthe prothonotary's office of the Supreme Court, I find I have been mistaken herein. 183 CASES IN THE SUPREME COURT 1813. WHITE v. COMMON- WEALTH. as radically defective. It states the felonious, wilful and " malicious assault of the prisoner upon Sampson, and that with a certain stone which he then and there in his right hand had and held, in and upon the right side of the head near the right temple of the said Sampson, then and there feloniously wilfully and of his malice aforethought did cast and throw; and that the prisoner with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid Sampson in and upon the right side of the head near the right temple of him the said Sampson, then and there feloniously wilfully and of his malice aforethought did strike penetrate and wound, giving to the said Sampson by the casting and throwing of the stone aforesaid, in and upon the right side of the head near the right temple of the said Sampson, one mortal wound of the length of &c., of which said mortal wound the said Samp- son then and there instantly died. So that the charge is laid positively, and not by way of recital, and that the party died of the wound occasioned by the prisoner's casting and throw- ing of the stone ; and the throwing of the stone, though in- elegantly expressed, is couched in words of sufficient cer- tainty. It has been further assigned for error, that the offence of murder of the first degree was created by the act " for the " better preventing of crimes, and for abolishing the punish- " ment of death in certain cases," passed on the 22d April 1794, (3 Smith's Laws 187) ; and therefore the crime should have been laid in the words of the act to have been done wilfully, deliberately and premeditatedly, and the indictment is defective in not concluding against the form of the act of assembly. But it is clear that this law creates no new offence as to wilful and deliberate murder, nor annexes any new punishment thereto. Different degrees of guilt exist under the general crime of murder, which is therefore arranged under two classes of murder of the first and second degree. The uniform practice since the act was passed, has been to lay the offence as at common law; which has been decided by the judges of this court sitting at Oyer and Terminer to be sufficient, in the case of the two negroes who were exe- cuted a few years ago for the murder of an ancient woman in the city of Philadelphia. The true distinction on this sub- ject is drawn in Respublica v. Searle, 2 Binney, 339. OF PENNSYLVANIA. 189 Upon the whole, imperious duty constrains me to declare, 1813. that there does not appear to me such error on this record, WHITE as would justify me in reversing the judgment rendered v. against the prisoner. I entirely assent to the opinion, that too COMMON- great nicety in proceedings is a reproach to the criminal law of any civilized country. BRACKENRIDGE J. I concur with the Chief Justice in the fullest manner. Judgment reversed. COOPER and another against HENDERSON. IN ERROR. Chambersburg, Saturday, October 9. THIS was an ejectment in the Common Pleas of Adams The Courts of county, brought by Henderson the plaintiff below, to h ^ er !} recover a tract of land in right of James Cooper an insol- ^IV*?* ""jo* vent debtor. The insolvent was discharged by the Court of for the relief ' Common Pleas of Tork county on the 5th of December^ 1797, and on the same day assigned "all his property real P'. nt new "and personal," to Jacob Rudesell, William Gilleland and those first ap- George Laskell, who were appointed by the Court to be toS^andTo 6 trustees for the benefit of his creditors, according to the act 00 " 1 ? 61 the first assignees to con- of 14th February 1729 30. The property in dispute wasvey their interest not contained in the schedule delivered into Court by the Ihe^re^'ppoiat- insolvent. On the 8th of June 1799, a certain Georve .ern me . ntofnew f assignees by the appeared in Court, and made oath that the asignees ot Court does not James Cooper had refused to act in execution of their trust ; whereupon the Court appointed the said Kern and Hender- them > so that i . >ii r i the - v may support son the plaintiff, as trustees in the place of those who had an ejectment. refused. Kern died, and this action was brought by Hen- an insolent 60 ' derson* who had never received a conveyance of James debtor may insti- , . . tuteaneject- Cooper s property, either from himself or his asignees. meat, without Upon the trial below, the defendants counsel prayed theSJgJJjJj 1 Courts opinion, on the three following points, on all of re nl - . .... , ? .. , r r u I -tr i ci i ^ h ass.gnmeut which it was delivered m rayour ol the plaintm, and n led of an insolvent of record. debtor passes all Ins property, 1. Whether the property for which the suit was brought, wi'^ter men- } 'tioncilm the passed by James Cooper s deed of assignment, not having schedule annexed been mentioned in the schedule of his estate, exhibited to n l ^ is I)etiliou > or 190 CASES IN THE SUPREME COURT 1813. the Court of Tork county, at the time of his petitioning to COOPER ~ be discharged. et ail. 2. Whether the trustees appointed by the Court in the v. room of those who had refused, had such an estate vested '.NDERSON. J Q t jj em ^ as wou i(i enable them to support an ejectment. 3. Whether the proceedings were not erroneous, because the plaintiff did not shew either by his writ or declaration, that he sued in his own capacity as trustee ? In this Court the first exception was given up : but the other two were insisted upon by Maxwell and J. Riddle for the plaintiffs in error. Dobbins contra. TJLGHMAN C. J. after stating the facts and exceptions, delivered his opinion. 1. The first acception has been abandoned. There was nothing in it, because the deed of assignment contains gene- ral expressions, embracing all the property of the insolvent, whether mentioned in the schedule or not. 2. The act of assembly contains no provision for the ap- pointment of new trustees in case the first refuse to act, or die. It seems to have been taken for granted, that there never would be a refusal to act, and with proper care there never could, because the intended trustees might be con- sulted before the assignment was executed. But it is said that the assignment having been executed, it is necessary that the Court should have the power of making a new appointment, otherwise the trust could not be caried into effect. There certainly would be a great convenience in the power to make a new appointment, and I have no doubt that within the spirit of the law the Court possess it ; but it does not follow that the estate shall be vested in the second trustees, without a conveyance from those persons in whom it had been vested by the assignment. There can be no necessity for that, because there is no reason to pre- sume that such conveyance would not have been made if the Court had ordered it ; or even without such order, if application had been made to the assignees, and informa- tion given them of the new application. In England the estate of a bankrupt becomes vested in the commissioners, OF PENNSYLVANIA. 191 by the commission of an act of bankruptcy, ipso facto* 1813. But this is by the express provisions of an act of parlia- COOPER ment. Our act of assembly directs the conveyance to be et al. made by the insolvent debtor himself. But suppose the as- v - signees should refuse to act, and also refuse to execute a " ENI)ERSO reconveyance ?' If the Court have power to order a convey- ance, they have power to compel obedience to their order. If they have no power to make the order, the matter is at an end. That point however is not before us. It does not ap- pear that the assignees in this case, ever refused to convey to the plaintiff, or were ever applied to for that purpose. The plea of necessity therefore, on which the plaintiff has rested his case, falls to the ground. 3. All the cases cited by the plaintiff's counsel, in which the person bringing an action, has been obliged to shew in his writ of declaration, the right by which he brought it, are of personal actions. But it is not so in suits for the recovery of land. Our ejectments are regulated by a late act of as- sembly, which prescribes the form of the proceedings, and the plaintiff has pursued it word for word. I am of opinion therefore, that in this respect all is right. But as the plain- tiff in error has made good his second point, the judgment must be reversed, and a new trial ordered. YEATES J. the counsel of the plaintiffs in error have very properly abandoned one of the errors assigned, that the assignment of James Cooper previous to his discharge by the insolvent act, did not include all the property he had at the time. The assignment is as comprehensive as words can make it. I can see no reason for the exception, that Henderson should shew on the face of the record, in what capacity or character he brought his suit. I see no necessity for it, nor know any such practice. Where lands have been conveyed to trustees for special purposes, the trustees may support ejectment in their own names, as having the legal estate. The light in which they claim, appears when the trust deed is shewn in evidence, and no ill consequences can possibly arise from its not appearing at an earlier stage of the cause. I fully agree that the Courts of Common Pleas under the old act of 14th February 1729 30, " for the relief of in- 192 CASES IN THE SUPREME COURT 1813i "solvent debtors," (1 Smithes Laws 181.) possess an ifl- COOPER herent power to appoint new assignees of the property of et al. an insolvent debtor in certain cases. The act is silent in that particular, but its object could be effectuated in no other mo( j e ^ w here the former assignees have died or refused to act. Chancery will never suffer a trust to be disappointed for want of a trustee. Where trustees decline the trust, equity will oblige them to assign to others appointed by the lord chancellor. But here, under the express terms of the second section of the act, " the estate, interest and property' " of the lands, goods, debts and effects so assigned, shall be ** vested in the person or persons to whom such assignment " shall be made, who may take possession of and sue for the " same in his and their own name or names, in like manner " as assignees or commissioners of bankrupt &c." How then has this interest been divested from the assignees first ap- pointed by the Court of Common Pleas of York county ? By the express terms of a positive law, all the interest of the insolvent became vested in them. They were in full life, and the Court of Common Pleas in York county had in my idea, an unquestionable right to call them before the Court, and oblige them to reassign their interest in the property of the insolvent, in case they refused to except and act under the trust. How can the substituted assignees or the survi- vor of them, shew this interest to be in themselves without such reassignment ? I cannot conceive it to be possible. Efforts at least should have been made to procure the re- assignment. As matters then stood, it was competent to the defendants below, who rested on their possession, to shew an outstanding title adverse to the plaintiff in ejectment. In this point of view, I think the opinion of the Court below was erroneous. Unless the substituted surviving assignee, could deduce his interest under his predecessors or the survivors of them, I think he was not entitled to recover ; and I am of ^opinion that the judgment of the Court below be reversed, and a venire facias de novo be awarded. BRACKENRIDGE J. concurred. Judgment reversed. \ OF PENNSYLVANIA. 193 1813. DUNCAN and wife against FORRER. Saturday, 'HIS was an appeal from the decision of Brackenridge J. at a Circuit Court for Cumberland in April 1809. Pennsylvania does not sever a joint-tenancy ,not- Arnold Duncan, and his wife, who was one of the daugh- J^g* n * ^ ters and legatees of Robert Patterson deceased, brought this makes a will good action of account render against Forrer as the surviving *"w fo. a the grant- executor of Patterson. The issue on which the cause went"S' conveying . .,. . , , i- i and assuring of to trial was never bailiff or receivers; and the verdict being lands &c. for the plaintiffs, judgment quod compulet was entered in the sid er joint Circuit Court. By the report of his honour, the case was as tenants in com- mon, when they thus : purchase lands Christian Garter, by articles of agreement dated the 29th ^ViSesSn?" of Mail 1792, covenanted to convey to Patterson and Forrer of money in the _ , , . . improvement of their heirs and assigns, a piece or land containing 50 acres them. by metes and bounds, in consideration of 60G/. payable by instalments, and of the making for him two tons of bar iron in two and three years from the date. Upon the 12th June following, Garber conveyed by deed the land to Patterson. and Forrer their heirs and assigns, " to have and to hold " the same to them their heirs and assigns, to and for their " proper use for ever." On the 26th September 1792, Patter- son made his will, whereby he directed that the whole of his estate real and personal should be sold, and devised one third to his widow, and the remainder to his nine children. He appointed his widow and Forrer, who had intermarried with one of his daughters, executors; and on the 9th of October 1792, letters testamentary issued to both executors. On the 14th of April 1798, the widow having died, Forrer and his wife executed a conveyance to John Douglass and others of the premises, in consideration of 2850/. It recited the title of the patentee, and the mesne conveyances down to Patterson and Forrer, and that Patterson died seized of one moiety of the lands, having first made his last will, thereby appointing his executors, with power to them or the survivor of them to sell ; and the grantors then conveyed the lands with warranty, without further mention of the authority in the will. The suit was brought to oblige the de- fendant to account for a moiety of the proceeds of this sale. VOL. VI. 2 B 194, CASES IN THE SUPREME COURT 181 S. It appeared on the trial, that Patterson had paid a larger DUNCAN portion of the consideration money than Forrer, but the v. precise difference was not ascertained. The widow paid FORRER. 100/. out of the funds of the testator, and Forrer paid 180/. after Patterson's death. He also made many valuable im- provements on the premises, estimated at above 150O/. One of the witnesses testified, that he understood the pur- chase was niade, for erecting a forge for the manufacture of iron by Patterson and Forrer; but nothing was done by them in further prosecution of that object. It was admitted at the trial that a joint-tenancy was created by the words of the deed from Garbcr ; but the judge de- livered his opinion to the jury, that under all the circum- stances of the case, the plaintiffs were entitled to a verdict, and he also gave his opinion, that the will of Robert Patter- son was a severance of the joint-tenancy, and defeated the jus accrescendi. Duncan for the appellees, contended for the same doctrine in this Court. He argued : 1. That though a legal joint- tenancy, it was an equitable tenancy in common, in conse- quence of the object for which the land was purchased, viz. for the manufacture of iron, and in consequence of the unequal contribution of the parties toward the purchase ; for which purpose he cited Lake v. Craddock(a), Rig-den v. Vallier (), Caines v. Lessee of Grant (c), Sugden 407., and Addison's Rep. 330. 2. That in Pennsylvania, a last will was a severance, by virtue of the Laws agreed upon in England, No. 15., 1 State Laws App. 22., by which it was provided, that wills attested by two witnesses, should be of the same force as to lands, as other conveyances ; and also by the first section of the act of 1 705, 1 State Laws 53., by which last wills were made good and available for convey- ing, granting, and assuring lands. He also argued, that the recital by Forrer in his deed to Douglass, amounted to a declaration, that he held as to one half in trust to execute the will of Patterson; which was equivalent to a covenant by him so to hold it. 1 Powel on Con. 237., Griffith v. Penrose (d). (a) 3 P. Jfms.158, (i) SAtk. 7,54. (c) 5 Sinn. 150. 231. OF PENNSYLVANIA. Carothers and Watts contra, answered, that as the judge had told the jury that the will was a severance, there must" be a new trial. For that doctrine there was no warrant, unless by a last will a man could make a fee simple out of an estate tail, or could give away that, which ceased to be his before his will took effect. That in point of equity, there were no circumstances to alter the law of the case, this not being a purchase for a partnership, or to expend money upon in improvements ; and that as to the recitals in Forrer's deed, they were made to satisfy a purchaser, and at all events could not be taken advantage of by strangers to that conveyance. They cited 2 Cruise 504. 525., Co. Litt. 185, sec. 286., Co. Litt. 352 a. b. TILGHMAN C. J. The counsel for the plaintiffs admit the general maxim, that the right of survivorship is preferred to the last will by the common law ; but they contend, 1st. that the law of Pennsylvania differs in this respect from the common lawj and 2dly, even supposing that it were not so, yet under the circumstances of this case, a court of chancery would consider Patterson and Forrer as tenants in common, and therefore the verdict being right, there ought not to be a new trial, even though the judge might have stept a little too far in stating the effect of the will as to the severance of the jointure. 1. At the time of Patterson's death, we had no act of assembly expressly affecting an estate in joint-tenancy, although one has been made since, which has no operation on the present case. But reliance is placed on the act " con- " cerning the probate of wills" &c., passed in 1705, by which it is enacted, that a will proved as therein directed, " shall " be good and available in law, for the granting, conveying, " and assuring of the lands or hereditaments, thereby given "or devised, as well as of the goods and chattels, thereby " bequeathed." The argument is, that the will operates as a grant or conveyance, and therefore severs the jointure. But I see nothing in the act to warrant this inference. The object of the law was, to enable all persons to dispose of their devisable lands by last will, but not to alter the nature of their estates. It was never supposed that a tenant in tail, might dispose of his lands by devise, so as to bar his issue. When a will takes effect, it operates as a species of convey- 195 1813. DUNCAN v FORRER. 196 CASES IN THE SUPREME COURT 1813. DUNCAN v. FORRER. ance ; but a conveyance which does not take effect till after the death of the testator. But the rule of law being fixed, that at the instant of death the right of survivorship attaches, in preference to the will, the act of assembly does not embrace the case. This appears to be the plain construc- tion of the act, and I have never before heard of any other. The plaintiffs' counsel has not produced the decisions of any court in support of his arguments. 2. Whether the verdict is right, is not altogether clear. There certainly are cases in which equity will consider joint-tenants as tenants in common ; and one of those cases is, where a purchase of land is made by two persons, with a view to expending large sums of money in the improve- ment of it. It is said that this purchase was made with a view to the erection of iron works. Perhaps it was. One of the witnesses said that he understood so ; but he did not say when or from whom he got his information. A stronger cir- cumstance appears in the articles of agreement for the pur- chase, previous to the conveyance. Part of the consideration was two tons of iron, to be made in the years 1794 and 5, (two years and more after the date of the articles). In con- firmation of an intent to hold as tenants in common, the plaintiffs rely also on the deed from Forrer and wife, con- veying the land to Douglass and others, in which it is recited, that Patterson " died seized in part of the said undivided " 53 acres of land, having made his last will and testament, "by which he authorized his executors to sell his lands, for " the purposes mentioned in the said will." On the other hand it is said, that no iron works were erected, and that after the death of Patterson the defendant expended up- wards of 40OO dollars in improvements on his private account. With regard to the recital in the defendants deed to Douglass, he says that it was done to satisfy the purchaser, and not from any doubt of his own title. In this mixt kind of case, consisting of law and fact, it would have been pro- per for the Court to inform the jury, that the will of itself could have no effect in severing the joint-tenancy, and then the material circumstances might have been laid before them, and the law explained, as applied to those circumstances. But it may be that the jury, understanding that the right of survivorship was defeated by the will, might not think themselves at liberty to enquire farther into the case. In OF PENNSYLVANIA. 197 order to afford an opportunity for such enquiry, I am of 1813. opinion that there should be a new trial. YEATES J. after stating the case very fully, delivered his opinion to the same effect. The plaintiffs' counsel have insisted that a co-tenant may devise his interest in lands held in joint-tenancy by the laws of Pennsylvania. To prove this, it has been urged, that wills as to lands shall have the same force and effect as legal con- veyances. 1. Dall. Laws, App. 22. No. 15. Written wills proved by two witnesses, shall be available in law to convey and assure the lands devised in Pennsylvania under the old act of 1705, Sec. 1. 1 Dall. Laws 53. But these provisions evidently presuppose an estate in the lands devised, capable of being passed by will. It will not be said, that because un- der the act of 16th January 1799, (3 Smith's Laws, 338), tenant in tail may bar the estate tail by deed acknowledged and recorded as the act specially points out, he may effect the same thing by his last will. Nor, if the real state of the law was in unison with the plaintiffs' doctrine, could there be any necessity to enact the law " concerning joint-tenancy," on the SlstMarch 1 812, (5 Smith's Z.aws,395), whereby joint- tenancies in all cases, except trusts, are transmuted into tenancies in common. The distinguishing feature of joint- tenancy is, that it disqualifies the party from devising his interest. 3 Burr. 1496. He holds under the original grant merely ; and unless the joint-tenancy is severed during his life, the jus accrescendi arises as an inevitable consequence from the nature of the estate. This affords a sufficient an- swer to the argument deduced from Patterson's last will. Forrer in a legal view was no further responsible for assets, than as to the legal right of Patterson in the premises, and was put to no election by a devise to his wife of the one undivided ninth part of the residue. The recitals in his deed corresponded with the truth of the case in every particular ; but it by no means appears that he sold under the autho- rity in the will given to the executors or the survivor. Upon this head, the deed is at least equivocal. The unequal sums paid by Patterson and his widow and Forrer, cannot afford any just ground of exception from the general rule of law. If Forrer has paid a less sum than he was liable to pay under the terms of his original contract, DUNCAN v. FORRER. 198 CASES IN THE SUPREME COURT 1813. DUNCAN v. FOHUER. he must necessarily be responsible to the estate of his father- "in-law in some other mode of procedure. Upon this part of the subject it is of moment to state, that he has expended more than 1500/. in valuable improvements on lands of which the plaintiffs mean to establish that one moiety be- longed to Patterson, and was subject to the directions of his last will. This is not a mercantile case. It is not established clearly that the premises were bought as a forge seat. Certainly no partnership appears by the evidence to have been entered into for that purpose j nor were any erections made, or even meditated, for the accomplishment of that object. Upon the whole, I freely admit that the case bears hard on the children of Patterson. This in the nature of things is the case in all instances of estates in joint-tenancy, where the chance of survivorship is not perfectly equal, and where the prospect of families in life rests on the event. Joint- tenancies are seldom or never intended by the purchasers of lands. The law acts by general rules. Where such words are made use of in a deed, as the law will construe to be a joint-tenancy, legal consequences must necessarily flow there- from, and we are bound to follow the results. If the joint- tenancy was not severed in the life time of Patterson, his will could not operate upon it, nor defeat the jus accrescendi. I am of opinion that the judgment of the Circuit Court be reversed, and a new trial be awarded. Judgment reversed. M'DOWELL against BURD. Chambersburgt IN ERROR. Saturday, October 9. in an action to npHIS was an action of debt in the Common Pleas of rfrnegmfthf 6 * Franklin, brought by McDowell upon a single bill given defendant is enti- by ^ ur( j f or 20O dollars, dated the 23d of Februani 1808, tied to give evi- / *-,... T.I dence,that&e/br^,and payable in three months after date, with interest. 1 he thereof the defendant pleaded payment, with leave to give the special sale, the negro matter J n evidence. was afflicted with a disorder which made him of little value ; and he is not obliged to shew previously that the plaintiff knew it. That may be done subsequently. OF PENNSYLVANIA. 199 At the trial of the cause, it was proved, that the conside- 1813. ration of the bill was a negro boy sold by the plaintiff to the defendant for a term of years. The defendant then offered -v. to prove, that before, at and after the time of sale, the negro BURD. was afflicted with a disorder which made him of little value. The plaintiff objected, but the Court admitted the evidence, and sealed a bill of exceptions. Brown and Riddle for the plaintiff in error, contended that the evidence was admissible, 1. Because the defendant had not previously shewn that the plaintiff knew of the un- soundness ; for as there was no warranty, knowledge of the unsoundness was essential to make him responsible. Seixas v. Woods (a), Frost v. Raymond (), Snell v. Moses (c), Perry v. Aaron ( Upon the hearing, it appeared that the indenture was to learn. dated the 23d of May 1811, and was executed by Francis Butt, one of the overseers of the poor for the borough of Norfolk, and by Henry Edwards for himself and his wife ; and it recited that Butt, in pursuance of an order of Court of the preceding month, bound the minor, an orphan child, to Edwards and wife, to learn the art of a milliner, until she should arrive at the age of eighteen, the master and mistress to find her in meat, washing, lodging, clothes &c., to have her taught reading and writing, and to give her twelve dollars at the expiration of her apprenticeship. S. Etvlng for the minor. The indenture made in Vir- ginia, has no force in Pennsylvania. It is local as to its objects, it proceeds from a law purely municipal, and has no efficacy except within its own jurisdiction. It is more- over violated and annulled by the act of the master, in bringing the minor out of the state where she was bound ; a CASES IN THE SUPREME COURT &c. S03 power which a master has not generally at common law, 1813. and which, for the best reason, he should not be permitted COMMON- to have, except where the nature of the art to be taught, WEALTH particularly requires it. In this case, no law of Virginia is T>> shewn to authorize the removal; and by bringing her away, DWAKDS the peculiar protection of Virginia laws and courts in cases of apprentices is lost, and no such protection is gained here. The law in authorizing overseers of the poor to bind out minors, intends that they shall be kept where the same law can do them justice. If the overseer of Norfolk meant to give the power of removal, his authority must be shewn, otherwise the master must be subject to the general princi- ple. Coventry v. Woodhaugh (a), 4 Bac. Abr. 578, Master & Servant E.) Hall v. Gardner (), Davis v. Coburn (c). Badger for the defendant. The trust of an apprentice, is I agree, a personal trust ; this prevents an assignment of the indentures. But the master continuing to be the same person, I deny that there is any decision against his autho- rity to take the apprentice out of the realm with him. In many cases it is necessary, particularly in the case of sea- men, which cannot be deemed an exception. If the law imperatively prohibits a master from taking his apprentice beyond sea, it must prohibit such an indenture as gives him the authority. It seems therefore that either minors cannot be bound apprentices to the sea, which we know is not the case, or that the master has the authority we contend for in all cases. But another objection to this Court's interference is, that the indentures were made by authority of a Court of competent jurisdiction, which ought to be respected every where. The master is here compellable to provide for the infant ; he should therefore have the custody of her person. Commonwealth v. Hamilton ( |i-wards put ' < coftee in the "and in behalf of the owners of the ship, and "as agent cabin, about " aforesaid", for the considerations therein mentioned, " he^. I, c e) w |,en c, C " granted and to freight let unto the said G. and T. Metier, wh . was interest- y ed in the charter " the hold of said ship, reserving usual and sufficient room with ji, purchas- ,i r r LI j i ed it of B. :nd "for the stowage of cables, provisions, wood and water, pai(1 the captain "for a voyage to be made from the port of New York f< ?F his cahin i'. r '- * vilege. One bill of 44 to Amboy in New Jersey, from thence to Varel, (and lading was given " Bremen if it proved to be free of blockade) and at and J^-j^i^ f hat "from thence back to New Tork, on the terms and condi-'' llhe (' oWar ' diu the cabin, " pay- " tions therein after mentioned." Barker as agent then cove- " ing freight as nanted that the ship was, and to the best endeavours of her p owners &c. should continue, tight, strong &c., and so on that - B r was b UQ(1 - to pay for the through the ordinary covenants on the part of the ship coffee in the owner. On their part, G. and T. Meyer covenanted with s c e a q Barker as arent, to use the hold of the ship, subject to the unseaworthiness . r ., -i of the ship. reservation aforesaid, to tender and receive the cargo, and A charterer to pay to the said Jacob Barker or his order for the same, SK^ 44 150O/. sterling, with five per cent, primage." payable at th . e . wholeamount i tn. i. i i i i i i of the Ioss catlsctl particular times. The charter thus concluded, "and lastly by uuseawortiii- "for the true and faithful performance of all and sin- "SSgumfeV- *' gular the agreements and covenants herein before con- writers have ai- ** tained, on the part of said forties respectively, they ^in^/dbputTpaid put "themselves personally each to the other, and their heirs, olth t'? ss; that f . . y . ' part betng reco- 44 executors, administrators and assigns each to the other, verabie b^ck by ,, j i j LU iiLjri ihe underwriters, 44 and the said cargoes are hereby severally bound, for the agapayment b) . 44 payment of the freight, primage and demurrage to the said mistake 44 ship and owners and their agent or agents ; and the said 44 vessel, her tackle and apparel are hereby bound for the 44 due performance of her owners, and agent or agents, to the 44 said G. and T. Meyer." It was signed and sealed first by Jacob Barker, without any addition, and then by George Meyer, and Theodore Meyer by his attorney George Meyer. While the cargo was loading at Nerv Tork, the defendant 230 1814. MEYER etal. v. BARKER. CASES IN THE SUPREME COURT put coffee of his own in the cabin, and a dispute arose whe- ther only the hold, or the -whole ship was chartered; in con- sequence of this, Jacob Le Roy and Sons, who were owners of an undivided moiety of the cargo, purchased for the con- cern the coffee of the defendant, and paid the captain for one half of the cabin which was his privilege ; and a bill of lading was signed for the whole cargo, including the coffee in the cabin, paying freight as ''per charter party." The vessel sailed from New York upon the voyage, and in consequence of springing a leak, she made a jettison of 402 bags of coffee, including that in the cabin, damaged her cargo, and was obliged in consequence of distress to put into the Delaware, and to come up to Philadelphia. Messrs. Le Roy and Sons, who were insured in Baltimore-, received the loss there without any dispute. They were also insured in Philadelphia ; but in a suit against the Union Insu- rance Company, they were defeated on the ground of unsea- worthiness. This suit was therefore brought against Mr. Barker upon the same ground. The declaration alleged the damage by breach of covenant to have accrued to G. and T. Meyer; but subsequent to the institution of the suit, it was en- tered on the record to be also for the use of Le Roy and Sons. Upon the trial of the cause, the first question was whether a copy of the charter party could be given in evidence. It was proved that the original had been sent with other papers from New York, by George Meyer, to the agent of the con- cern in Philadelphia, Mr. George Harrison. Mr. Harrison delivered the papers as he received them to Mr. Ingersoll to bring suit upon, and Mr. Ingersoll swore that he received the charter from Mr. Harrison on the 26th of March 1807, and afterwards delivered it to one of his students, to draw the declaration, which was drawn and filed on the 17th of August 1 809 ; that diligent search had been made for the charter party in his office, and from its not being among- his papers, he believed that the same had been lost upon the removal of his papers on a change of residence. After the loss was discovered, a second declaration was filed without profert. It was also proved that both the subscribing wit- nesses were dead, and that notice had been given to the defendant to produce the counterpart. On this evidence, an examined copy, made by the defendant himself, and exhibit- OF PENNSYLVANIA. 231 ed upon a trial in another cause, was offered, and admitted by the judge, reserving the point. The fact of the loss and damage, and of the entire unsea- worthiness of the vessel, was then shewn, and the cause was spoken to, the defendant's counsel making the following ob- jections to the plaintiffs' claim, in addition to their observa- tions upon the question of unseaworthiness : First, that the defendant was not responsible, having acted in the capacity of agent. Secondly, that the plaintiffs could only recover their own loss, and that the loss of Messrs. Le Roy and Sons could not be included. Thirdly, that no damages could be recovered for the coffee in the cabin, the charter party only embracing the hold. Fourthly, that from the entire loss, should be deducted the amount received by Le Roy and Sons from the underwriters at Baltimore. All these points the judge reserved, giving his own opinion at the same time against the defendant upon all, and the jury found a verdict accordingly. The reserved points were now argued by Dallas and Ingersoll for the plaintiffs, and by Todd and Ra-wle for the defendant. Arguments for the plaintiffs. 1. The copy was good evi- dence, because the loss of the original was proved as clearly as it could be. There was no necessity for examining the plaintiffs or Le Roy and Sons, because the paper had been traced out of their hands, and their was no ground for sup- posing it had ever got back. 2. The defendant was personally responsible. The respon- sibility of agents depends very much upon the intention of the parties, to be collected from the language used, and from the circumstances attending the transaction. Barker is the party ; his principles are not named, nor are they bound ; the freight is reserved to him or his order ; he binds himself in express terms personally, and he seals in the character of a principal. There was good reason for requiring his per- sonal liability, because the owners lived out of the state : if he had intended to bind his principles only, he would have named them, signed for them, and given his plaintiffs a re- course to them. For want of this he is personally liable. 1814. MEYER etal. v. BARKER. 232 CASES IN THE SUPREME COURT 1814. MEYER etal. v. BARKER. This is not like the case of Hodgson v. Dexter (c), nor ' Unwin v. Wolseley () ; because there the obvious intention was to look to government, and not to the agent. 3. The damage sustained by Le Roy and Sons may be recovered in this suit. They were interested from the first. No second suit can be brought upon this charter party, and yet clearly the defendant should make good the whole loss. It can only be done by permitting an entire recovery in this. Le Roy and Sons were known to the defendants as parties in interest from the outset. They bought the cabin coffee, and paid the captain ; and the bill of lading which included the coffee, stipulated for freight as per charter party. This recognized and included their interest. 4. The coffee thrown overboard from the cabin is upon the same footing with other parts of the cargo. It was in- cluded in the same bill of lading, which referred to the charter party. After the dispute arose, the defendant by selling the coffee to Le Roy and Sons, agreed to their inter- pretation, that the hold meant the entire ship. The bill cf lading is evidence of the particular goods to be conveyed according to charter party, and included within it. Abbot on Ship. 172. 5. The ship not being seaworthy, the underwriters who have paid a loss, may recover it back, as a payment by mis- take. If it is deducted in this suit, and the underwriters then recover it, no further remedy can be had upon the charter party. If the defendant wishes to take defence against those underwriters upon the question of seaworthi- ness, we agree that he may do it in our name j or we will deduct the amount so paid, from our claim in this suit, on receiving an indemnity against the underwriters. For the defendant. 1. It was not quite clear that the paper sent to Mr. Harri- son was an original ; but before a copy could be evidence, it was necessary to examine the plaintiffs, who had the legal right to possess the original, or to produce their affidavit. There was nothing to shew that 'it might not have been delivered back to them. 2. Barker is not bound personally, because he is bound (a) 1 D. &f E. 674. (b} 1 Crnn. 3i5. OF PENNSYLVANIA. 233 throughout as agent, and the plaintiffs treated with him as agent. Joyce v. Sims (a). It is this circumstance that" exempts him. Signing and sealing, personally binding, are of no importance ; these existed in Hodgson v. Dexter (). The term personally was used only to guard against an abandonment of the goods for the freight. If it appears that the party covenanted in a representative capacity for his principles, he is exempt. That the owners were not dis- tinctly named is immaterial, as their names might have been ascertained at the custom house ; and the bill of lading un- questionably bound them, if the want of an authority under seal, prevented the charter under seal from obliging them. As to the reservation of freight to Barker, payment to the owners would have barred him, and they might have main- tained suit upon the charter. 2 Roll. Abr. 22. /. 20., 2 Lev. 74,. 3. The recovery must be according to the count, which is for damage to the plaintiffs only. At the commencement of the suit, the names of Le Roy and Sons were not entered in the process, or on the record. The defendant is in the nature of a surety, against whom a remedy should not be extended by implication. Wright v. Russel (c), Strange v. Lee ( i- enemy, or what action, because the said William Kussel is an alien enemy, \ a equivalent to " born out of the allegiance of the United States, and within ^^S^ " the allegiance of a foreign sovereign, to wit, The Kingof isresi(li "K inthe " the United Kingdom of Great Britain and Ireland, and iseSy* " not a citizen of the said United States of America, nor " resident within the same ; and that since the last continu- VOL. VI. 2 H 242 CASES IN THE SUPREME COURT 1814. "ance of the plea between them, to wit, the day of RUSSELL *' a public war has been commenced, and is now carried v. " on, between the king of Great Britain and Ireland and their V-KIPWITH. " dependencies, and the said United States of America and " their territories. And this &c. Wherefore &c." To this plea there was a general demurrer, and joinder. Rawle for the plaintiff. The plea is bad, because the de- fendant has not set forth every fact necessary to bar the plaintiff. He does not aver that the plaintiff is residing in an enemy's country. It is a hard and odious plea, and must be construed strictly. Casseres v. Bell (a). The rigour of the ancient practice of confiscation has been banished from modern war. Credits are no longer affected by war. A reasonable time is allowed for the recovery, removal, and disposal of effects; and the humane and rational principle is adopted in England, that barely owing allegiance to a belligerent, is no bar to the action, without a residence in the country of the enemy. Bynk. Law of war, 56, 57., 1 Emerg. 567., 4 U. S. Laws 160. Act of 6th July 1798., Treaty with G. B. 1794, Art. 1O. In Casseres v. Bell, the plea did not describe the plaintiff as residing in the enemy's country, and it was held bad. In Lebret v. Paptllon (l>), Brandon v. Nesbit (c), and Bell v. Chapman (, sec. 7. on which there is no incumbrance. . i i r i i i It ' s not sufficient Binney obtained a rule upon the defendant, returnable that the freehold this morning, to shew cause why this suggestion or pl^I^UoSejSdg. should not be struck off the record, upon, the ground that jnent, after pay the defendant had not such a freehold as was intended bybrances. the law. The law enacts that the writ of execution shall be staid on the judgment, " if exceeding four hundred dollars, " twelve months, counting from the first day of the term to " which the original process issued is returnable, if the " defendant in the opinion of the Court is possessed of a ** freehold estate, worth the amount of such judgment, clear " of all incumbrances." Hopkins, who shewed cause for the defendant, admitted that his only freehold in the county was a house and lot, for which he had given four thousand dollars on the 25th May 1807, and on which there were two mortgages, one of the 16th July 1807, for one thousand dollars, and another of the 16th July 1811, for three thousand dollars; but he offered to prove by a witness in court, that the property was worth 254 CASES IN THE SUPREME COURT 1814. GlRAUD V. HEYL. .Pluladelphia, Thursday, March 31. If the late she- riff has executed more than six thousand dollars, and that an offer for it to that amount had been refused. The counsel then argued, that security to the plaintiff was the only object of the law ; and that according to its spirit, the defendant had a freehold equal to the judgment, clear of all incumbrances, or in other words, after all incumbrances should be cleared or paid off. Such had been its interpretation in other courts ; and upon any other construction, an incumbrance of ten pounds would take away the privilege from a freehold of ten thousand. Binney in reply said, that no argument could make the act plainer. The defendant claims a privilege, and it is no hardship upon him to be asked to bring his case within the fair and natural import of the law. He must have a free- hold clear of all incumbrances, not above, or more than, but clear. Any incumbrance destroys the privilege. If the de- fendant obtains a stay, what certainty is there that the whole property may not be swept away to-morrow, by an execution upon one of the mortgages. The law intended that the plaintiff should have a security indefeasible by the act of any one. PER CURIAM. The act is too clear for a doubt. The de- fendant says he can prove the estate is worth six thousand dollars. How can he prove that if a lev ari facias should issue, and it should be sold by the sheriff, it would bring half the money ? Both the words of the law and its spirit are against the privilege in this casej the words, because the defendant has no freehold clear of incumbrances ; the spirit, because it did not intend that the plaintiff's judgment should be exposed to defeat by sale under a prior incum- brance.* Rule absolute. ADAMS and another against THOMAI 6b 254 10 w 22 10 w 23 10 w 39 a deed, and at- TN this case, the lands of the defendant had been sold Sdyfh?sl d c- b > r ? aif ez Hyde, late sheriff of Luzerne county, under a cessor cannot un- testatum venditioni, issued out of this court returnable to tier the act of 23d -.'., m, , i i , e\e-JDecember lerm 1813. 1 he purchase money having been P aid i the sheriff made a deed for the lands, to Henry Drin- riff may acknow- f^ e freehold in question was afterwards sold under a Ji.fa. in this case, and though 1 ouTof ^ not P roduce t* 16 amount ot the mortgages and interest. office. OF PENNSYLVANIA. 255 ker the purchaser ; and acknowledged the same on the 29th of October 1813, at the Wilksbarre Court of Common Pleas." Hyde being out of office, the purchaser now petitioned- the Court under the act of the 23d of March 1764, to direct the present sheriff of Luzerne county, to execute a sufficient deed. Drinker on behalf of the petitioner, contended that the acknowledgment was an essential part of a sheriff's deed; and that the former sheriff having acknowledged the deed before the return day of the writ, the whole was a nullity. Glances Lessee v. Jones (a). That the petitioner's case, was within the equity, if not within the words, of the act of 1764; that the acknowledgment of a deed, was an act to be done by the sheriff, as sheriff; and that the former sheriff could now do no such act. 1 Dyer 41. 136 ., Moore 364. 186. 431., Cro. Eliz., 512, though he might make return of whatsoever he had done, whilst sheriff. 2 Ld. Ray. 1O72. PER CURIAM. The case of the petitioner is not within the act of 1764. That act provides for the case where a sheriff has made no deed; but the late sheriff has executed a deed to the petitioner, which it is said has not been acknowledged in due form of law. The acknowledgment is no part of the deed ; it is only the sanction of the Court to the, act of the sheriff. The practice has been for sheriffs, after their term of office has expired, to acknowledge deeds for lands sold by them, and executed whilst they were in office; and the Court is of opinion that such acknowledgments are suf- ficient. 1814. ADAMS etal. v. THOMAS. 66 2551 6sr341 The Commonwealth against CALL AN. Pftiladelphia, Thursday, March 31. r TPHIS was a habeas corpus to Lieutenant Callan of the A mother isa -- cavalry, to brine up the body of JR. L. Caustin a minor parent, within the J 7 * act ot Congress of 19 years of age ; and the return was, that he held him as of 20th January a soldier in the army of the United States, under an enlist- ij 8tm 'entot 'mi-" ment of the 20th of September 1813. nors : " d lf . t , 1 ,' e f minor h--s neither The facts were, that the minor at the time of his enlist- father, muter nor ment had neither father, master, nor guardian, but a mother; coii'lenHs ncUs- and he had enlisted without her consent. wry to his en- listment. () 1 Smith's Lnv 65. 256 CASES IN THE SUPREME COURT 1814. PER CURIAM. By the act of Congress of 20th January COMMON- 1813, no person under the age of twenty-one, shall be enlist- \VEALTH ed or held in the service of the United States, without the "V' consent in writing of his parent, guardian, or master, first LALLAN. ^ a d &nc i O b tamec j t The mother is a parent within that act, and her consent is necessary. He must therefore be dis- charged. The same has been decided by the Chief Justice at his chambers, and by the District Judge of Pennsylvania. SPARHAWK and others against BROOME. It a bankrupt, T^HIS was an action against the defendant as the indor- between the date J. ser o f two pro missory notes, one dated the 5th of Feb~ of his commission r J ' and his certificate ruary 1803, for 1250 dollars, drawn by Andrew Hadfeg dorse" a^promis-" ^ Co. payable to the order of Peter Lohra, ninety days sory note, he is a f ter <] ate an d t h e other dated the 9th of February 1803, liable to an action upon the note by for 1250 dollars 5O cents, drawn by the same persons, and \JhetberuTe' payable to the same order, and at the same time as the bankrupt borrow- fi rst> Qn the day of their date, both the notes were indorsed ed it tor his own * accommodation by Lohra and by the defendant, who at the time of his in- it" an^whether* dorsement received value from his indorsee. A commission the note became of bankruptcy under the act of Congress, was issued against Ws assignees or the defendant on the 7th of April 1802, and his certificate of dl //wenw,that a discharge was signed by the judge on the 4th of March 1803. note which a The cause was tried before Yeates T at a Nisi Prius in bankrupt acquires . between his com- January last, when it was agreed that a verdict should ScSe" becomes " be entered for the plaintiffs for the sum in controversy, sub- i he property of ; ect to t h e opinion of the Court, whether upon the above his assignees, un-' -11 less it is lent to tacts they were entitled to recover. Li in as an accom- modation* N. Chauncey and Chauncey for the plaintiffs : 1 . The assignment of the notes must be taken to have been legal, and to have transferred the property as in a common case. 2. Whether legal or not, the defendant is liable upon his indorsement. 1> The objection is, that the defendant was an uncertifi- cated bankrupt at the time of indorsing, and could have had no property in the notes. The answer is, that he might transfer the notes without having any property. He might have been the agent of the drawers, and if so, the property OF PENNSYLVANIA. 257 did not vest in his assignees ; Cooper's Bank. Law 331.; or 1814. they might have been lent to him as accommodation, and SPAR HAWK then his assignees took nothing. Arden v. Watkins (a), et al. Wallis v. Hardy, (). Every intendment jnust be made, in Vt the absence of proof to the contrary, to support so just a B demand. Even if the notes were the fruits of the defendant's own industry, acquired between the commission and certifi- cate, his assigness were not entitled. The act says "if any " real or personal estate shall descend, revert to, or become "vested" in the bankrupt before the certificate, it shall be vested in the commissioners, and be assigned by them. 5 U. S. Laws 77. sec. 50. Act of 4th April 1800. The 13 EViz. c. 7. * 11., says if the bankrupt shall " at any time " after, purchase" any lands goods or chattels, or if they shall "descend, revert, or by any means come to him." The differ- ence in the terms is striking, and shews that congress intend- ed to include such only as came to the bankrupt by opera- tion of law. Even in England the assignees are not entitled to money aquired by the personal labour of the bankrupt ; Chippendale v. Tomlinson (c), Silk v. Osborn () 10 Ves. 09. (0 I Coot. J9. L. 55: () Jhnbler 63Q. (I) 2 Vern, 156. (w) 1 Atk. ^252. OF PENNSYLVANIA. 259 et al. v. BROOME. dorsement was void, and there was no liability of the bank- 1814. rupt upon it. In Toms v. Mylton (a), the bankrupt committed SPARHAWK an act of bankruptcy in January 1724, and the petition- ing creditor's debt was a note drawn in 1725. The commis- sion was void. A simple contract before bankruptcy, is not extinguished by a bond given afterwards. Ambrose v. C/en- don (). The indorsement gives no remedy against the drawer, and therefore they cannot recover against the de- fendant on the drawer's default. Pinkerton v. Adams (c), is in point. The bankrupt indorsed an accepted bill before his certificate, and the acceptors were under the general issue permitted to object it against the holder. Chitty 94., Smith v. Pickering (' f his assignees, nothing passed by his indorse- ment, and therefore he is not responsible. In the mouth of a man who received value for his indorsement, this to be sure is a most ungracious defence. It is material that the assignees have never claimed these notes, nor do the) take any interest in this action. Every possible intendment should therefore be made in favour of the plaintiffs. Whether the bankrupt or his assignees are entitled to property acquired by him after his bankruptcy, but before the signing of his certificate, is a point which has been fully argued. I incline to the opinion that the assignees are entitled to such pro- perty. It is enacted, in the 50th section of the act of con- gress, that " if any estate real or personal, shall descend, " revert to, or become vested in any person, after he or she " shall be declared a bankrupt, and before he or she shall " obtain a certificate signed by the judge as aforesaid, " all such estate shall by virtue of this act be vested in the " said commissioners, and shall be by them assigned &c." The words are sufficiently comprehensive, and as compre- hensive I think as those of the English statute of 13 Eliz. c. 7. sec. 11, though somewhat different. But no property passes either*under the statute or the act of congress, but such as the bankrupt has a beneficial interest in. Now what interest had the bankrupt in these notes at the moment be- fore he indorsed them ? As there is no evidence of his hav- ing applied any part of his estate, or paid any valuable consideration whatever for them, I shall suppose that they were drawn and indorsed for his accommodation, in order to enable him to raise money, in which case, neither he nor his assignees under the commission could have supported an action against the drawer or first indorser. This was decided in Arden v. Watkins, 3 East 317, where an uncertificated bankrupt drew a bill payable to himself, and indorsed it. It was held that the indorsee might maintain an action against the acceptor, because the bill did not vest in the assignees under the commission, no value having passed from the drawer to the acceptor. The case of Pinkerton v. Adams was cited from 2 Esp. Rep. 611, to shew that the indorsee of the bankrupt could not recover against the acceptor. But Lord Ellenborough, remarking on that case in Arden v. Wat- kins, says, that there " the bankrupt had a property in the OF PENNSYLVANIA. 261 " bill before his bankruptcy." If so it would clearly pass 1814. under the commission. In this view of the case the law is SPAR HAWK with the plaintiff. But even if the property of the bill had et al. been vested in the assignees, I am not satisfied that the plain- v ' RROOME tiffs' action would have been barred. The defendant's counsel have laboured to shew the property to be in the assignees, taking for granted that if they succeeded, the plaintiffs' action was gone* But they have cited no case which comes up to their position. Justice is against it, and there is a strong principle in their way. It is not necessary that the indorser should have such a property in the note as would enable him to recover against the drawer. Every indorser stands as to his indorsee in the light of a new drawer. He is liable although the note be forged, and so would he be, I apprehend, if he had stolen it himself, by which he could acquire no legal property. It appears to me that a man who has received value for his indorsement, should be estopped from impeaching his own property. Whether the assignees under the commission might recover against the plaintiff in an action of trover for these notes, is another question. If they were accommodation notes, they could not. If they had been purchased by the bankrupt with money raised from his own estate and fraudulently concealed, perhaps they might ; but that would not be at all inconsist- ent with the plaintiffs' recovery in this action. I am therefore of opinion that judgment should be entered for the plaintiffs. YEATES J. I concur in the opinion which has been de- livered by the Chief Justice. The contest here is not be- tween the plaintiffs and the assignees, who are interested for the general creditors, but between the plaintiffs and the bankrupt himself, who has received value, who endeavours to avoid his liability as indorser of the notes, upon the ground of his having committed a fraudulent act. As between the indorsee and the drawer of a promissory note, it is incumbent on the former to prove a full and com- plete right to the note ; but the same is not necessary in a suit by the indorsee against the indorser ; for as between them, it is an entire new contract, guaranteeing the payment of the note by the drawer, when it comes to maturity, and the handwriting of the indorser, and due notice of the non- payment of the note, need only be proved. The decisions on 262 CASES IN THE SUPREME COURT 1814. the responsibility of indorsers of notes given by infants, or which even have been proved to be forged, furnish striking illustrations of the correctness of the principle. It is wholly unnecessary to anticipate at this time, whether, if the bankrupt had a beneficial interest in these notes, his assignees might not recover from the plaintiffs in trover, or the amount of the monies hereafter received from the defendant. It is sufficient to say, that the liability of the defendant, not attaching until above two months after the date of his certificate of conformity, the debt could not be proved under the commission, nor was barred thereby, j am therefore of opinion, that judgment be entered for the plaintiffs. BRACKENRIDGE J. concurred. Judgment for plaintiffs. 6b 262] Philadelphia, Monday, SMITH and another against MARTIN. April 4. ven by'stress of " T^HIS cause was tried before the Chief Justice at a Nisi veather into a JL Prius in February last, when a verdict was given for the defendant; and now, upon a motion by the plaintiffs for a rule to shew cause why there should not be a new trial, his upon the master, Honour reported the case to be as follows : whose duty His / to take proper 1 he action was brought against the defendant as master ^ods 0f asaredama. of the shi P Volunteer, for not delivering to the plaintiffs or ged.orareofa their assigns at Philadelphia. 230 barrels of refined salt- perishable nature, * . . . he has power, petre, agreeably to a bill or lading signed by him in London i the 21st of October 1808, and for unlawfully selling the port out of her course, the charge of the cargo devolves ship, to sell. But same at St. fhomas. The invoice price of the saltpetre was those which are * . .. * _ in good condition, 1067/. 1*. 4,d. sterling. It was valued m a policy by the Fhoe,- nix Insurance Company at 85OO dollars, and for their use right to sell with- the present action was brought, they having paid the plain- out the order ot r the owner, to tiffs a total loss, and received an assignment. to'dTe'ittimedSllte ^ ne vesse l by great stress of weather, and in consequence information, if o f much injury from storms and tempests, was obliged to contrary to this J . J . . duty he sells, he take refuge in the island or ot. l/ionias, where she arrived an ~ in the month of February 1809. Surveys were held upon ship and cargo in the same month, by which the former OF PENNSYLVANIA. 263 was condemned as unseaworthy, and the latter, expressly including the saltpetre, was stated to be generally damaged " by sea water. It was therefore thought advisable to sell ; and accordingly the entire cargo was sold at public auction between the 3d and 16th of March, the saltpetre producing very little. There was no supercargo on board, and the de- fendant applied for advice to Messrs. Badderack a house of the first respectability in the island. The cargo, excepting the saltpetre and some books, sold pretty well. The plaintiffs, and others who were owners of parts of the cargo, having heard of the ship's arrival at St. Thomas, despatched y. W Peril as their special agent, with full powers to act as might be necessary. He was intrusted by the plaintiffs to bring the saltpetre to Philadelphia, unless it should be damaged, or would bring 30 cents a pound on the spot. When he arrived at St. Thomas, which was in April, he found that the entire cargo had been sold, and that the defendant, having settled his accounts with Messrs. Badde- rack, was about to depart to the United States, with bills of exchange to the amount of the net proceeds ; and either by persuasion, or the menace of a suit, he prevailed on the de- fendant to remit the bills to Messrs. Guest and Bancker of Philadelphia, accompanied by a letter, in which he made an appropriation of different sums to different persons, ac- cording to their respective interests iu the cargo. At the same time, Mr. Peril as the attorney of those persons, gave a written engagement to the defendant, by which it was stipulated that in consequence of the whole proceeds hav- ing been remitted, his constituents should pay to the defen- dant the amount of his lawful claim for freight, services and expenses. The evidence as to the damage done to the saltpetre, was rather contradictory. Mr. Peril swore that the survey- ors of the cargo were men of the first respectability ; that he saw part of the saltpetre which he considered to be damaged, but he did not examine it very particularly ; that he did not know that he should have sold it, as it was in a condition in which it might have been brought to Philadel- phia ; that it was in bulk when he saw it. Saltpetre, he stated, is not a perishable article, the part not damaged remaining good as before. That he did not know any vessel that the defendant could have got to come to Philadelphia, the vessels 1814. SMITH etal. v. MARTIN 264 CASES IN THE SUPREME COURT 1814. SMITH etal. & MARTIN. there being embargo breakers. He did not consider himself "as finishing the business with the defendant, at St. Thomas, but as leaving it to be concluded at home. Shortly after his arrival in the island he wrote to his principals, that the con- duct of the defendant appeared to have been correct and judicious, and so it then seemed to him. On the other hand it appeared that the saltpetre, which was sold for 7 dollars the keg, was exposed in bulk to the sun and air; that it was than repacked, when about 10 kegs were lost out of the 230, and the residue proved good and merchantable, and was sold for 25 dollars the keg. The plaintiffs' counsel contended before the jury, that the sale was unlawful ; because, as the article was not perishable, as the damage it had received was little or nothing, and as the master did not want money to repair the ship, she being condemned and sold, his duty was to store the saltpetre, and give notice to the owners. He had therefore made him- self liable by his misconduct. They relied upon the follow- ing authorities. Abbot on Ship. 158., 2 Condifs Marsh. 171 note. The Gratitudine (a), Vanomeron v. Do-wick (6), Hunter v. Prinsep. (c). The defendant's counsel contended that the master had acted like a prudent agent, and within the scope of his authority ; that the saltpetre was generally damaged, and therefore within the plaintiffs' rule he had a right to sell ; but that independent of this, as the voyage was fairly broken up, and the cargo was miscellaneous and principally damag- ed, the master was not bound to preserve the particular parts not damaged, but might sell the whole. The breaking up of the voyage made the difference. For this they cited Mills v. Fletcher (I - v ' ' a married woman engaged as a nurse at different places. Upon these occasions is competent ..... >tii witness to prove the defendant frequented her company, was with her late at the criminal con- night when the families had eone to bed, and once was with ne n tt ! thner - The wife cun- her all night. Her husband on the 17th of March 1805, n0t P TOvet ' ie n n - , r , , , access of the 1ms- came to her lathers house and supped, but did not sleep band; but if th there. Since that time he had not been known to be mf^^ the company of his wife either at her father's house or question from the . , . , answer to which elsewhere ; but one witness swore that he saw Myers in thenoj.-accessmuy Philadelphia market on the lOth of June 1812, and he was 1^^'"^,, seen in the same place about a month before, and also in " smct slie liad ., . "seen her hus- the spring of 1 8 1 1 . hand," and af- The prosecutrix having been called, swore that she was JJJJJ^JJJJ* delivered of a male child on the 24th of December I812, wercnolloc . on ' sider any thing which ffltfroru the wife as evidence of non-access, the verdict cannot be disturbed OD account of the question. 284 CASES IN THE SUPREME COURT 1814. that the defendant promised to marry her, had frequent cri- COMMON- niinal connexion with her, and was the father of the child. WEALTH It had not appeared when she gave this evidence, that she v- had ever been married. The defendant's counsel put that HERD. q Uest j on to h er on t h e cross examination, and she answered that she was married about Christmas 18O1, but that she did not know whether her husband was dead or not. The counsel for the prosecution then asked, when she last saw her husband. The defendant's counsel objected, and after a long discussion the judge overruled the objection, and she answered that she had not seen him for eight years. In his charge to the jury, Teates J. said, that if upon a consideration of all the evidence, they should be of opinion that the husband had not had access to his wife, and that the child was really begotten by the defendant, they might find him guilty of both fornication and bastardy ; but that they were not to consider any thing which fell from Sarah Myers as evidence of non-access. Brorvne for the defendant. 1. The verdict was against law and evidence. The hus- band had been seen in Philadelphia, several times after he removed to New Tork, and particularly in May and June 1812; and no evidence was given to shew that he was in New Tork at the time when the child was begotten. Access was to be presumed, until the contrary was shewn. Although the rule of the four seas is exploded, yet it is still the law that if the husband is in the same place with his wife, the issue shall be bastardized only by proof of his impotence. It is not necessary that he should be in her company. Access does not mean connexion, but liberty to have con- nexion. Lomax v. Holmden (a), is in point. 1 Bac. Ab. 511. East. A., 1 Botts Poor L. 396. 397., 1 Tuc&er's Black. 457"., Rex v. Reading (), 1 Domat 622. It was the duty of the prosecution to rebut the presumption of access, by proof of non-access, and so should the judge have charged ; whereas from his charge to the jury, they must have understood that there was no such presumption in favor of access. St. George v. St. Margaret (c). Peake's Ev. 420. (a) 2 Stra. 940. (6) Hardtv. ca. 79. (73.) (c) 1 Salk. 123. OF PENNSYLVANIA. 285 2. Illegal evidence was admitted. It is perfectly settled 1814. that the wife cannot prove the non-access ; and yet the an- COMMON- swer to the question went to shew non-access ; for it is a WEALTH mere play upon words, to say that a wife may not see her u> husband, and yet he may have access to her. The effect of fc this answer remained, notwithstanding what the judge said in his charge, and we are entitled to go to a jury who shall not hear that question or the answer. The wife herself was not a competent witness to the bastardy ; she has no right to release her husband from the responsibiliy of maintaining her issue, nor to affect his reputation by her testimony. The act of 1705 applies only to cases of single and unmarried women j this case stands at common law. Drowne v. Stimp- son (a) is a strong authority. Living for the prosecution. 1. The law is now settled that access or non-access may be proved by circumstances. Pendrell v. Pendrell (). It was therefore properly stated to the jury ; and no one can doubt from the evidence, that their inference from it was right. 2. The question was put to the witness, after she had been asked if she had been married, and she had answered that she did not know whether her husband was dead or alive. It went to corroborate this statement. But if it was improper because it tended to shew non-access, that tendency was counteracted by the charge. The wife is a good witness to prove the con- nexion, ex necessitate ; but the non-access must be shewn by other witnesses. This is the result of all the cases. 1 Botts 455. pi. 600. Rex v. Reading (c), 1 Botts 462. pi. 607. 397. pL 593. 452. pi. 593. The exception to her testimony is now too late, it should have been taken at the trial before the verdict was brought in. Hecker v. Jarret TILGHMAN C. J. This is a motion for a new trial by William Shepherd, who has been convicted of fornication with Sarah Myers, and begetting a bastard child on her body. The reasons assigned are, that the judge who tried the cause admitted improper evidence, and erred in his () 2 Mass. 441. (c) Andrews 10. (*) 2 Slra. 025. ( 85) it is enacted, that all bonds given by direction of OF PENNSYLVANIA. 297 any law, by persons in office, for the due execution of their respective offices, shall be tor the use of, and in trust for the" persons concerned, and the mode of proceeding on such bonds is pointed out. But this act does not comprehend the bond in question, because it is not given by direction of any law. It private persons have any interest in it then, it must be, because from its nature, it appears to be in trust for them. It is unnecessary however to decide that point, if the Com- monwealth has, as I am clearly of opinion it has, a prefer- ence for its whole claim, against all private persons, not only because the bond is expressed to be for its use, but because the first suit was commenced for the Common- wealth ; and the defendants shall not avail themselves of their negligence or collusion with Parham y in suffering him to obtain judgment in his action. It was the duty of the defend- ants to plead before the arbitrators, that a prior action had been brought for the use of the Commonwealth, and was then depending, and if the arbitrators had overruled this plea, an appeal should have been entered. So that if the de- fendants suffer by Parharrfs judgment, they have nobody to blame but themselves. Upon the whole, it appears that the Commonwealth ob- tained judgment against the defendants for the penalty of the bond, and thai there is no act of assembly, by which any private person is let in. Neither- is there any principle of common law, or of equity, by which the Commonwealth will be deprived of the benefit of this judgment to its full extent, as long as it has a just demand unsatisfied, arising out of a breach of the bond. But it has been proved, that there is a just demand unsatisfied for fees received by Fre- derick Wolbert, to the full amount of the penalty of the bond, and something more. I am therefore of opinion, that the Commonwealth should recover all that part of the penalty, which remains after deducting the amount recovered in the first action. YEATES J. The facts of this case have been fully detailed by the Chief Justice. The counsel on both sides agree that no act of assembly can be found, directing that the protho- notaries of the Courts of Common Pleas, should give bonds with sureties for the faithful performance of their duties. VOL. VI. 2 P 1814. COMMON- WEALTH v. WOLBERT et al. 298 CASES IN THE SUPREME COURT 1814. COMMON- WEALTH v. WOLBERT etal. Hence it has been asserted by one of the defendants' coun- " sel, that the bond given in this case not being authorized by law, is not binding against the surviving party. It is evident in the present instance, that the taking of such a bond was a prudent and necessary precaution to guard the public interest, and on these terms Mr. Wolbert was commissioned. It is therefore valid at common law as a voluntary obligation, and falls within the principle laid down in Johnson v. Lasene, 2 Ld. Raym. 1459, 2 Stra. 745, wherein it was held, that though an executor is not obliged to give bail in error, yet the Court may well take it j and if he will voluntarily enter into such a recognizance, it shall bind him. But the question cannot come into consi- deration in the present suit, judgment having been rendered on the verdict obtained on the official bond, which thereby transit in rem judicatam. The merits of that judgment while it remains unreversed, cannot be overhawled. The official bond was given to the Commonwealth in the penalty of 4266 dollars, 66 cents, for the use of the Com- monwealth, conditioned for the faithful performance of the duties of Wolbert, as prothonotary. Judging from these expressions, we are bound to presume, that the immediate object of the bond was the security of the monies which might fall due to the state, and I deem it unnecessary from the facts in this case, to decide how far suitors in court were protected thereby. The attorney general instituted an action on this bond returnable to December term 1811, on which a trial was had at Nisi Prius, upon the plea of payment, on the 22d June 1812, and a verdict found for the penalty of the bond, and the jury further certified that 896 dollars 87 cents, were then due to the Commonwealth. In December term following, judgment was rendered on this verdict. A second settlement was made by Wolbert to the accounting officers of the state, and on the 19th October 1811, a sum of 842 dollars 14| cents, was found due to the Commonwealth, of which Wolbert had re- ceived due notice. The attorney general afterwards moved, that he should be permitted to take out execution for this sum under the judgment which he had obtained; but it ap- pearing to the Court that other creditors claimed under the OF PENNSYLVANIA. 299 judgment, the Court directed thatascire facias should issue in 1814. order that all the facts might come regularly before a jury on COMMON- trial. An amicable scire facias was therefore filed by mutual WEALTH consent, returnable to March term 1813. Previously thereto, v ' i ii/r i ' 11- r * OLBKRT Robert Wallace and Maloney issued their writs of et a j scirc facias returnable to the same term, for two sums of money paid into the hands of the prothonotary, by order of the Court of Common Pleas. Upon the trial of the present cause, the defendant gave in evidence the payment of four sums of money, besides the sums certified by the former verdict for the use of the state, amounting in the whole to 3329 dolls. 65| cts. leaving a balance of the penalty 937 dolls, and a half cent. Besides which it was shewn, that Joseph Far ham brought on the 22d May 1812, a suit on the same official bond, to July term following, which proceeded to ar- bitration, and that the report thereon was filed on the 2d July 1812, (before the return of the process) finding for the plaintiff 456 dollars 7O cents, upon which judgment was en- tered on the same day, in pursuance whereof, 509 dollars 8 cents was paid by the surety to the plaintiff, including the costs, on the 12th November 1812. On the whole facts dis- closed, it was submitted to the Court in bank to decide, whether the Commonwealth was entitled to recover any thing, and how much in this suit. The surviving surety has contended, that he is discharged from all responsibility by the negligent conduct of the officers of the Commonwealth, and that in all events he is entitled to credit for the sum paid to Parham. The private creditors have insisted that if they should not be deemed entitled to preference as to the remaining balance of the penalty, they are at least entitled to come in pro rata. Upon the first objection it has been urged, that the exe- cutive magistrate should have removed Wolbert from office immediately on his first failure to settle his annual account in the treasury, according to the provisions of the act of assembly, 24th February 1806 ; that the existing law gave full power to the accounting officers to oblige him to settle his accounts ; and that the case before the court must be con- sidered in the same light, as if all these laws had been incor- porated in the condition of the obligation. Here has, it is said, been a gross omission and neglect, by proceeding in 300 CASES IN THE SUPREME COURT 1814. COMMON- WEALTH v. WOLBERT etal. the first instance for the debt incurred during the last year ot his office; and where an obligor gives time for payment to his principal debtor, his sureties are disch trgrd in equity. The case was compared to The People v. Jansen and others, 7 Johns. 332, wherein it was adjudged that sureties in an official bond may urge laches, in not proceeding against the principal according to the provisions of the law, by way of defence. I answer, that the case in Johnson was one of the most gross neglect for ten years, during which the surety was kept in entire ignorance; and the act itstlf imperiously directed the officer's removal. The delay here did not x- ceed twelve months, and the law required no removal. Mr. Binder also managed all the business of Wolbert with the treasury, and must have known all the transactions. He must be presumed to have concurred in asking indulgence from the accounting officers. The rule in " quity in the Eng- lish cases, is admitted as to indulgence given to the principal debtor ; but I do not know that we have extended these cases in their full latitude. A bill will lie in chancery by a surety to compel a creditor to sue his principal; and equity will act on his refusal or neglect to sue, particularly where the condition of the surety is thereby deteriorated. The surety here has no such remedy, he must pay the money on the bond, and take an assignment. Should he demand a suit against the principal in desperate circumstances, I should huld him bound to tender an indemnification. That a surety is not discharged by the obligee of a bond not pro- ceeding against the principal, when the same becomes due, is I believe generally understood in this state. It was so decided some years ago in Delajf\. Turbctfs Ex'rs. at a Cir- cuit Court in Lancaster, and not long since in the middle district by the whole Court in bank, in the case of Simpson and others, upon full argument on a writ of error. In this instance it was stated that the debtor was solvent, when the debt became payable. I would not however be understood to say that in no given case the surety in a bond under all circumstances would be responsible. Besides, an insuperable difficulty lies in the defendants' way, on this branch of the argument. The cause was tried under the plea of payment, and no notice of. this special matter was given, agreeably to the rule of this Court. It OF PENNSYLVANIA. 301 cannot be pretended, that the conduct of the officers of go- vernment could be available at common law under this plea. It would operate as a complete surprize on the attorney general. Who can tell what he might bring forward if this de- fence was disclosed in due time? He might shew that the most vigilant attention was paid by the accounting officers, in the discharge of their duties in this instance, and that the delay and indulgence granted were justified by existing circum- stances, and even sought for by the very sureties who now set it up as a ground of defence. In this point of view the ground taken would not discharge the surety from respon- sibility* I consider the payment under Portion's judgment as vo- luntary and not compulsory. The proceedings were wholly illegal. Two suits of the same nature cannot be maintained on the same bond. The defendants knew they had been sued in the first action to December term 1811, and were bound to plead the former suit still depending, upon which a ver- dict had been taken to the action brought to July term 1812. Admitting that this bond would enure for the use ot pri- vate suitors in court as well as of the Commonwealth, con- cerning which I express no opinion, Parham could not compel an arbitration to ascertain the quantum of his de- mand in the action which he had commenced, but was left to his remedy by scire facias upon the judgment on the verdict, in the same manner that Wallace and Maloney have done. The attorney general brought the first suit upon the official bond, and obtained judgment on his verdict. To the next term he issued this scire facias, and has proceeded as quickly as the law would permit him. It is not competent to Parham to deprive the Commonwealth of the fruit of her officer's vigilance, and by a short cut to justice, unknown to the law, to frustrate the effect of this scire facias. I have already said, that the evident intention of the bond was to secure the interests of the Commonwealth, and therefore can see no reason why judgment should not be rendered on this scire facias for 937 dollars and half a cent, the balance due on the penalty of this official bond. BRACKENRIDGE J. concurred. Judgment for the Commonwealth. 1814. COMMON- WEALTH v. WOLDERT etal. 302 CASES IN THE SUPREME COURT 1814. DUFFIELD against SMITH and others. April 4. an action ofTre's" r ""'HIS was an action of trespass, assault and battery, and pass atrainst the X f a i se imprisonment, ajrainst Isaac Deaves president of office; 8 of a court . martial for impri-a militia court martial, Joseph Lloyd the judge advocate, ti^fnot appear- an( * J^ n Smith marshal of the Pennsylvania district, bail ing that they had 3QOO dollars ; and it came now before the Court upon a rule exercised their . r power, whether to shew the cause of action, and why the defendants should Sul!fed, ri S al ' ynot be discharged on common bail, oppression. The plaintiff's affidavit set forth, that some weeks since he was served with a notice signed by Deaves, requiring him to appear before a court martial, to answer for a dis- obedience of orders of the President of the United States, in not appearing at a muster of militia, held on the 19th of April 1813. He did not appear as required by the notice. He was shortly afterwards called on by Deaves, with a note from Lloyd the judge advocate, requesting his attendance before the court martial. This note he also disregarded. In consequence of this a guard of soldiers was sent to his dwelling house the next morning ; and the plaintiff being absent, they searched all the rooms of the house, and the cellar, in order to arrest him. The guard returned the next morning, and the plaintiff seeing them, concealed himself in an adjoining house. They again went through part of the plaintiff's house, and threatened to billet themselves in his house, and to eat and drink at his expense, until he surren- dered himself, and appeared before the court martial. After the guard retired, he went to the court martial. Deaves pre- sided, and Lloyd acted as judge advocate. The latter inform- ed him that he was brought there under a charge of disobe- dience of orders of the President of the United States, and inquired whether he had any thing to offer in extenuation. The plaintiff answered that he was in the service of the bank of Pennsylvania at the time, had a family to support, and could not attend the muster of the militia. Some weeks after, the plaintiff went with the marshal's deputy to the marshal, upon the subject of the fine assessed upon him by the court martial, and the marshal told him he must pay it, or go to jail. 1'he deputy afterwards called upon the plain- OF PENNSYLVANIA. 303 tiff at a stage office where he was employed, and told him he had orders from the marshal to take him, and that he " had better go with him and see the marshal. He went. The marshal repeated that he must pay the fine or go to jail, that his deputy would go with the plaintiff among his friends to try to get the money. The plaintiff requested the marshal to call at the stage office at five o'clock, it then being dinner time. The marshal refused. The deponent then left the marshal's office in custody, and went to the stage office where he remained about an hour, and was then taken towards the jail. After going some distance, he returned with the deputy to the stage office, and sent for the proprie- tor to ask his advice. The proprietor offered to pay the fine. The plaintiff said he preferred consulting counsel, which he was permitted to do ; and counsel having advised him not to pay, he was committed to prison. After he was in prison, the proprietor of the stage office paid the fine of 3O dollars, and the keeper's costs, and the plaintiff was discharged. The affidavit then proceeded to state that the plaintiff was a man without any property, which he had stated to Deaves before appearing at the court martial, and to the marshal before the arrest j that he did not attend the muster on the 19th of j4/>r7/1813, nor did he at any time enroll himself as a draft in the service of the United States ; and as he had been advised, the proceedings against him were not sanc- tioned by law. Two questions were made in the case; 1. Whether the court martial was authorized by law to inflict the fine upon the plaintiff. 2. If not, whether the plaintiff was entitled to bail. On the first question, as a majority of the Court gave no opinion, and the point involved several acts of congress and of this Commonwealth,, an official corres- pondence, and a variety of military orders, it is unnecessary to state the argument. On the second, supposing the Court to have had no authority, Gibson and Hallowell for the plaintiff, contended, that as it was a case involving the liberty of the citizen, and the sanctity of his home, which had been brutally violated by the guard, and as the invasion proceeded from a military court whose encroachments were always watched with 1814. DUFFIELD V. SMITH et al. 304 CASES IN THE SUPREME COURT 1814. jealousy, and punished with exemplary rigour, it was the DUFFIELD duty of the Cour;, exercising a just discretion, to hold the defendants to bail. They cited 1 Sellon 35., Frye v. Sir Chaloner Ogle (a), 2 M* Arthur 242., Lehman v. Allen (). V. SMITH et al. Browne and Dallas on the same point answered, that the general rule was against holding to bail in actions of tres- pass; and that the Court exercised its discretion in ordering it only in flagrant cases, as of an outrageous assault and battery, or when there had been an oppressive exercise of military power as in Fryers case, or where the defendants were about to leave the state. 1 Crompton 35. In the present instance there was no feature of oppression, but on the con- trary a disposition manifest throughout to perform the duty- incumbent on the defendants, in a lenient manner. The con- duct of the guard was unauthorized. TILGHMAN C. J. I think it unnecessary in the present stage of the action, to give an opinion, whether the proceed- ings of the court martial have been conformable to law. Let it be supposed that the plaintiffhas shewn cause of action. That is putting the matter on the most favourable footing for him. The general rule is, that in actions of trespass, bail is not demandable, because there is no standard by which the damages can be measured. But there are exceptions to this rule. One is, where the defendant is about to depart out of the jurisdiction of the court. Another is, where there has been a violent battery, in which the plaintiff may sometimes swear to damages to a certain amount, and it may be evident from a view of the wounds, that considerable damage must have been sustained. There are other cases where it is pre- sumable that large damages will be given, because the sub- ject may have been discussed in an action against others for a similar trespass. Such was the case of a court martial of which Sir Chaloner Ogle was president, (cited by the plaintiff's counsel) whose proceedings had been proved to be unjust, arbitrary and oppressive. The case before us comes within none of these exceptions. The court martial was not con- vened by the defendants through a wanton spirit of mis- chief, but in obedience to the orders of the governor of the (a) 1 M* Arthur 229. (i) 1 mis. 160. OF PENNSYLVANIA. commonwealth ; nor in the course of their proceedings has the plaintiff been treated by them with contumely, insolence " or oppression. On the contrary, nothing offensive has been shewn in the conduct of the president of the court or the judge advocate; and the marshal behaved with great kind- ness, in suffering his deputy to attend the plaintiff to the houses of his friends, in order to borrow money to pay the fine. One of these friends offered money, which the plain- tiff refused, and went to jail by advice of counsel, in order to lay a foundation for damages in this action. I pass no censure on the plaintiff for choosing to go to jail, he had a right so to do; and it is highly important to the citizens of this Commonwealth to have it judicially decided, whether the acts of this court martial are warranted by law. But I see nothing in this case, which should take it out of the general rule with regard to special bail. It is impossible to say what damages a jury may think proper to give. Where national liberty is invaded, high damages are sometimes given by way of example, though the plaintiff has suffered very little injury ; on the other hand, a jury might think the rights of the nation sufficiently vindicated by small damages for the first offence, against persons who had conducted themselves with mildness and decency in a doubtful case, where they were called upon to act by superior authority. It is not for me to anticipate the verdict, nor do I think it prudent to say, until the cause comes to a hearing, any thing which may have a bearing against either party with respect to damages. I am of opinion, that there is no reason, why the Court should in this instance depart from the general rule, which permits an appearance without bail in actions of trespass. But I desire it to be understood, that my opi- nion would be different, should a case be presented, where the members of a court martial had conducted themselves inso- lently, rudely or oppressively towards those, who by their religious principles are known to be conscientiously opposed to the bearing of arms. On such persons the law itself ope- rates with sufficient rigour, and should not be aggravated by unnecessary severity. No case of that kind has yet oc- curred, and I sincerely hope none ever may. VOL. VI. 2 Q 1814. DUFFIELD V SMITH et al. 306 CASES IN THE SUPREME COURT 1814. DUFFIELD V. SMITH -t al. YEATES J. I cannot reconcile my mind to the exercise oi l ^ e P ovvers f courts martial over private citizens, or militia men, who have not mustered or been in actual service, con- sistently with the provisions of the constitution of the United States, or of this Commonwealth. Nor can I see in the act of congress of 28th February 1795, any authority delegated to such courts martial, to compel such persons to appear before them, to answer for a supposed delinquency, by the instru- mentality of an armed force. At the same time, that I feel it to be my duty thus pub- licly to avow my sentiments, I cannot avoid saying, that I can discover no tincture of wanton oppression in this in- stance by the military tribunal. The expressions of the file of men who were sent to apprehend the plaintiff in his lodg- ings, were in my idea highly reprehensible ; and if such con- duct had been authorized by the orders of the court martial, I should have no hesitation as to the holding of the defend- ants to bail. The case before us presents a question of great importance to the rights of the citizens, but unattended with any circumstances of aggravation fairly imputable to the defendants. The plaintiff intimidated by the acts of the guard, surrendered himself to the court martial. It is our duty to decide on the motion according to the known rules of law, applicable to the circumstances of the particular case. In matters of mere tort, bail is not of course, but may be directed by the special order of a judge, or of the whole Court. In the exercise of an impartial legal discretion, they will either order or refuse bail, according to their view of the individual wrong which is the subject of the suit. When the injury complained of is not gross or enormous, the cir- cumstance of the defendants having expressed no intention to leave the government, to whose laws the plaintiff has ap- pealed, will always have great weight. Judging by these rules, I concur in opinion, that the de- fendants should be discharged on common bail. BRACKENRIDGE J. was of the same opinion with the Chief Justice. Discharged on common baiL OF PENNSYLVANIA. 307 1814. WEN BERG against HOMER. Philadelphia, t ndaif, April 15. "N this case the writ was in trespass for an assault and if the writ is in ^ battery, and the declaration contained three counts, de JSEKb ^rt first two for assault and battery, and the third for the miscon- in tn-spass and r ,,.._. . part in case, the duct of the captain as master or the ship Piscataqua, in defendant cannot causelessly dismissing the plaintiff from his post of mate of that ship. Plea non Cltl. J ur ) have found in his favour upon the count in case. The cause was tried at a Nisi Prius before Teates J. in January last, when the jury found for the plaintiff on the first two counts, damages 250 dollars, and for the defendant on the third. Browne for the defendant moved for a new trial, on the ground of excessive damages, and in arrest of judgment, in consequence of the variance between the writ and declara- tion, and the mis-joinder of counts. He contended that although the jury had found for his client on the third count, yet the plaintiff under it had introduced evidence which influenced the jury to assess extravagant damages on, the others. Shoemaker contra, answered that the third count was now immaterial in consequence of the finding, and that under this circumstance the Court would disregard the variance. 1 Chitty 248, 254, 401., 3 Saund. 171 b. c. TILGHMAN J. There is no reason to arrest the judgment, because the verdict on the bad count was for the defendant. As to damages, although it is possible that the jury may have been influenced in some degree by the evidence appli- cable to the other counts, yet we ought not to suppose so, unless it is very plain. Judge Teates does not think the damages so improper as to authorize a new trial, supposing them to have been grounded solely on the evidence applica- ble to the first and second counts ; and it appears to us all in the same light. We are therefore of opinion that judg- ment should be entered on the verdict. Judgment for plaintiff. 308 CASES IN THE SUPREME COURT 1814. FRENCH against REED and FORDE. Philadelphia, Wednesday, Apni 'jo. " "^HIS was an action on the case against the defendants, who kinder no * r not execut i n g the plaintiff's order for insurance, obligation to exe- The Narr contained two counts : The first stated, that the cute ;in ortl rot , . _ . . , . . insm-vjce. never- plaintiff being owner of goods to the value of 20,OOO dol- takl^uT'lTJxe- lars on noai "d ^ e Dri g Hiram, at Reedy Island, bound to the cutes it detective- island of Hispaniolo. and two ports of that island, the de- ly.heis answtt-a f \ . . ... bie for the loss. lendants at the request or the plaintiff, and in consideration of the plaintiff's promising to pay them a reasonable reward and commission, undertook to procure insurance to be made as aforesaid ; that the said brig proceeded to Cake Francois, and in proceeding thence to Gonaives, the second port to which the defendants undertook to procure insurance, she was captured, and with her cargo lost; that the defendants neglected to procure the said insurance, whereby &c. The second count laid the promise to procure insurance from Cape Francois to Gonaives. The cause was tried before the Chief Justice in February last, when a verdict was found for the plaintiff, damages 13,867 dollars 19 cents ; and upon a motion by the defen- dants for a new trial, the case was reported as follows : The plaintiff, having shipped on board the Hiram an in- voice for his own account and risk of 20,208 dollars, and being about to sail in the vessel, on the 5th of December 1804, wrote a letter to the defendants from Reedy Inland, requesting them to effect insurance immediately upon goods, valued at 20,000 dollars, as by a bill of lading enclosed, out only, to two ports in the island of Htspantola; property war- ranted American, and premium to be covered. 1 here had been previous dealings between the parties, but at this time the plaintiff had no funds in the defendants' hands, but on the contrary was their debtor, and his circum- stances were not good. On the 10th of December, the defendants wrote to R. Fleming^ the general agent and attorney in fact of the plain- tiff, informing him that the plaintiff had requested insurance, but unless they were made safe, they must decline acting. That a note for the premium must be given, and they gave him that notice that he might see what could be done. They would make enquiry among the offices about the premium. OF PENNSYLVANIA. 309 On the 13th of December ', they wrote to the plaintiff, in- forming him that the offices asked 20 per cent, for two ports, and \\ould not take less than 15 per cent, to one port. That he had forgotten the note for the premium payable in three months, and that the Hiram would not return in time to pay the note. They said they were anxious to make the in- surance, and had applied to his agent Fleming to make an arrangement upon the subject, but that difficulties had ari- sen ; and they then mentioned certain conditions* on which they were willing to undertake to make insurance. On the ITth ol December, the defendants had 3500 dollars written by private underwriters for the plaintiff, at 1O per cent, from Philadelphia to Cape Francois or Port de Paixin Hispaniola. On the 24th they caused 8OOO dollars to be underwritten by the Union Insurance Company, at 1 1 per cent, from Phi- ladelphia to one port in Hispaniola, the goods valued at 23,000 dollars. On the 27th, they wrote him, advising of their letter of the 13th, and of his omission to leave the premium note ; that Fleming would not make the arrangement required ; that they had insured to one port out as above, and expect- ed to get the remainder done at New Tork and Baltimore for 11 per cent.; that he must exert himself to remit thtm, and that they had passed their own notes for the premium. On the 18th of January 1805, they wrote him again, in- forming him that in consequence of the premiums to Hayti having risen, they had waited for a fall, and had fortunately heard of his arrival at Cape Francois, before they made any further insurance. On the 24th of December 18O4, the plaintiff wrote from Gonaives, that he had come from the Cape there, giving an account of some articles he had sold to the administration at the former place ; that he should return to the Cape the next day, where he should sell, and purchase coffee at Gonaives. On the 4th of January he wrote from Cape Franfois, saying that he had landed the greater part of his cargo there, and had sold some which the defendants had in her ; and requested them to insure no part of his property at pre- sent further than Gonaives. He wished them to insure 10,OOO dollars home in the Hiram. 1814. FRENCH v. REED et al. 310 CASES IN THE SUPREME COURT 1814. On the 2d and 6th of February he wrote from Gonaives, FRENCH mentioning that the brig had left the Cape under British v. convoy, and that he was afraid she was captured by a French REED privateer. In case of capture he should abandon to the un- derwriters. That it was very unfortunate for him, as more than half of his goods were on board, a good part ofrvhich he had sold to the administration at Gonaives. He requested them to abandon the moment the capture was ascertained. On the 24th of February, he wrote from Cape Franfois stating his surprize to find that they had insured only 11,500 dollars, and to one port; that on reflection he was convinced they must afterwards have extended it to two ports for the whole amount ordered by him. Ha then men- tioned the amount of goods remaining on board the Hiram, that she was missing, and that he abandoned. On the 26th of February the defendants wrote him that they had received advices of the brig's sailing under convoy from Cape Francois, and that they would endeavour to in- sure 10,000 dollars from the Cape to Gonaives, but were not sure it could be done ; and On the 4th of March they wrote, that by some of the offices a premium of 2O per cent, was asked for the risk with convoy; that the Union asked 17 3, and they had offered 15, which they thought would have been taken, but a report of the capture arrived, which prevented any thing from being done. The Hiram was captured on the 28th of January 1805, about three leagues trom Gonaives, by a French privateer, at which time she had on board an invoice of 9O38 dollars 92 cents belonging to the plaintiff, which was totally lost. The defendants had goods of their own on board, which were also lost; but on these they had effected insurance to two ports, by which they were covered. Three questions were raised upon the trial. 1. As to the mode of estimating the damages, if the verdict should be for the plaintiff, the defendants claiming a premium of insu- rance, the usual deduction of two per cent., and an allowance for the goods sold to the administration of Gonaives. 2. As to the warranty of American property, the defendant's coun- sel contending that the warranty was broken, or at least the risk increased by that sale. 3. As to the defendants' liability, OF PENNSYLVANIA. 311 the same counsel arguing that the defendants were not bound, because they had not undertaken to execute the order, but on the contrary had expressly declined it ; and that afterwards they had gratuitously effected a different insurance, not under the order, but as a favour, to diminish as far as they could, the inconvenience arising from their refusal to execute the order. The Chief Justice charged the jury 1. That as the plaintiff gave orders to cover, the jury, if they found in his favour should give him the cost of the goods, without deducting the premium or two per cent. 2. That the warranty was not broken, if the sale to the French administration at Gonaives was made on condition of being delivered there ; but if the jury should think that the contract was completed by delivery at Cape Francois, then the warranty was broken. As to the increase of risk, the Chief Justice did not think it had been proved. The French captured all property, to whomsoever it belonged, found on a voyage to or from His- paniola; and as to the English, they were on terms of friend- ship with the administration at the Cape and Gonaives, as appeared by their granting convoy. 3. That an agent was bound to insure : 1. Where the prin- cipal had funds in his hands. 2. Where the principal con- signed goods to him, and he accepted the bill of lading. 3. Where he had been in the habit of insuring for his prin- cipal. That the defendants stood in neither of these predi- caments, and therefore were not bound to insure. Under the circumstances of this case, if the defendants had said they would insure to one port in Hispaniola, and nothing more, because they had no funds, his honour did not think it ought to be inferred against their express declaration, that they undertook to execute the whole order. But if from the expressions of the defendants, or the circumstances of their conduct, the plaintiff might have been fairly led to conclude that they had undertaken the execution of the order, in such case the jury would be warranted in saying that they did undertake it, and holding them responsible for the damages occasioned by omitting to perform any part of it. In other words they would consider the defendants a* 1814. FRENCH v. REED et al. 312 CASES IN THE SUPREME COURT 1814. FRENCH v. REED et ul. standing in the place of insurers, and charge them to the extent of the plaintiff's order of insurance. No opinion was intimated on the main point, namely whether the defendants did or did not undertake to execute the order. That, which was the turning point ol the cause, was left to the jury. The jury gave the amount of the invoice, 9038 dollars and interest. The motion for a new trial was argued hv Sergeant and Levy for the defendants, and by Rawle and Ingersoll lor the plaintiff. TILGHMAN C. J. This is an action for not executing the plaintiff's order, to have an insurance effected, or rather for executing the order differently from the plaintiff's direction. The order was to effect insurance from Philadelphia to the island of St. Domingo, and two ports in the said island. The defendants had an insurance made to one port only, and the vessel and cargo were captured on the voyage from the first port where she arrived in safety, to the second. The plain- tiff wrote the order at Reedy Island, when he was just on the point of sailing for St. Domingo, so that there was no time for the defendants to return him an answer. There had been an intimacy and dealings in business between the plain- tiff and defendants for some time before this, but at the date of the order for insurance there was a balance of account due to the defendants, nor was there any circumstance ex- isting from which the plaintiff had a right to demand of the defendants to have the insurance effected. There is no doubt therefore, but that the defendants might have refused to tx- ecute the order. But instead of refusing, they seemed will- ing to execute it in part at least, and whether they did not act in such a manner as to make themselves liable for the non- execution of the whole, was the question submitted to the jury. It was one of those questions, which, although to be solved principally from letters which passed between the parties, was yet so interwoven with the defendants' actions, as to render it proper for the Court to submit the whole to the jury, with this direction in point of law, that although the defendants were under no obligation to execute the plaintiff's order, yet if they did undertake it, and executed it OF PENNSYLVANIA. 313 badly, they were answerable for the consequences (a). The ]ury could be under no embarrassment with regard to the /aw, but the matter of fact was not without difficulty ,* and so it appeared on a former occasion, when a jury, after hearing the evidence and arguments of counsel, were discharged by consent, because they could not agree. Insurance is so essen- tial to commerce, and it is so necessary for one merchant to rely on another for executing his orders on that subject, that the law ought not to be relaxed. It is said to be a hard case, and in one sense it is hard* The defendants receive no value for the damages awarded against them. But that is no reason for setting aside the verdict. Nor do I see how with propriety it can be set aside. If the defendants had refusec^ at once to effect the insurance, there would have been an end of the business. But they intermeddled so much, as to render it doubtful how far they would go. It does not ap- pear that if they had refused, there were any other persons who would have taken upon themselves to execute the plain- tiff's order, and yet it it is possible there might have been ; and I do not think myself justified in saying peremptorily, that there would not have been such persons, for the plain- tiff had some friends besides the defendants, and after in- telligence had been received of the brig's arrival at ihejirst port) there would have been no great difficulty in procuring an insurance to the second. In fact the defendants were en- gaged in a negotiation for that purpose, and would have effected it, if they had not been too tardy ; but the matter was kept in suspense, until news of the capture arrived. I am sorry for the defendants' loss, for they have brought it upon themselves by their willingness to oblige the plaintiff. But the plaintiff has his rights, of which the Court cannot injustice deprive him. The cause was submitted to the jury upon a point, on which merchants best understand their own modes of doing business. The verdict ought to stand, unless we clearly perceive it to be wrong. This would be going further than I think myself warranted in doing. My opinion therefore is against a new trial. YEATES J. It cannot be denied, that the verdict in this case operates with peculiar severity on the late firm of Reed and (a) Vid 1 ,1/arsA. 298., 4 Johnt. 84., 5D,VE. 150. VOL. VI. 2 R 1814. FRENCH v. RKED etal. 1814. FRENCH f. REED etal. CASES IN THE SUPREME COURT Forde. They did not fall within either class of cases, where- in a correspondent is generally bound to make insurance for his principal. They had ho funds of the plaintiff in their hands, such was not the usual course of dealing between them, nor had they accepted bills of lading upon a consign- ment of goods to them. Yet if by the commercial law they have incurrred a responsibility under all the circumstances, and the verdict is not contrary to plain evidence, we should not be justified in awarding a new trial. The law on which the plaintiff relied to support his re- covery, has not been questioned by the defendants* counsel. If a party who makes an engagement to perform a business gratuitously, enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for this misfeas- ance. Thornbury v. Day, 4 Johns. 96. But it has been con- tended that this legal proposition is not applicable to the facts in this case. It is certain that the plaintiff wrote to Reed and Forde from Reedy Island, on the 5th of December 1804, directing them to make insurance immediately upon goods on board the Hiram for Hispaniola, valued at 20,OOO dollars, and cover the premium, out only to two ports in Hispaniola ; and that this letter came to hand. The defendants shewed great anxiety to carry the order of the plaintiff into effect. They wrote to the general agent and attorney in fact of the plaintiff, stating to him their want of funds, offered to raise the premium supposed to be at least 3000 dollars, and informing him they must decline insuring, unless they were made safe. Several arrangements were made for this purpose, but they were rendered abortive. By their letter of the 13th of De- cember, they tell the plaintiff that he had forgot to leave a note for the premium payable in three months, and that the Htram would not return in time to put them in funds, and they mention the conditions on which they would make the insurance. Had the defendants adhered to their resolution of not insuring, unless funds were furnished to them for their indemnification, all would have been well. But on the ITth of December they effected a policy, wherein 3500 dollars were subscribed bv private underwriters on the goods to Cape Francois or Port de Pa'ix in Hispanic/las and on the 24th of the OF PENNSYLVANIA* 315 same month, another policy of 80OO dollars in the office of 1814. the Union Insurance Company to one port in Hispaniola. These act's did not conform to the orders they had receiv- t. ed, which specified that the insurance was to be made on REED the goods valued at 20,000 dollars, covering- the premium, to two ports m hispaniola, without naming either of them. Upon the 27 h ot December, Reed and Forde inform French, of what they had doni-,and express their hope of having the remainder done at New Tork and Baltimore at a premium of eleven per cent. In another letter of the 26th of February 1805, they say they shall endeavour to insure 10,OOO dol- lars from the Cape to Gonaives, but probably it could not be done ; and again on the 4th of March, they mention that the president of one of the insurance companies had demand- ed a premium of 171 on that risk and they had offered 15, which they thought he would have taken, if a report of the capture of the Hi ram had not arrived. Whether the defendants undertook the effecting of this insurance in pursuance of the plaintiff's orders, was the point on which the cause turned ; and this was fairly sub- mitted by the Chief Justice to the jury, to be decided by them from the language of the defendants' letters, and their whole conduct, without any intimation of his opinion. The question of f;ict and law was so intimately blended, that I do not feel myself authorized to pronounce that the jurors were mistaken in the inferences which they drew from a lengthy correspondence, and a variety of circumstances dis- closed therein. I am of opinion that the rule to shew cause bhould be discharged. BRACKENRIDGE J. delivered his opinion contra; but a part of it having been mislaid, the reporter is unable to pub- Ijsh^it, Judgment for the plaintiff. 6b 316 3s r 39 316 CASES IN THE SUPREME COURT 1814. 6sr420 6sr582 14 62 32 366 Philadelphia, ,, TT it 55 40 Wednesday, VVAKELY against HART and Others. 61 359 April 20. r THHIS was an action of trespass, assault and battery, and ny without war- _L f a i se imprisonment, tried before Teates J. at a Nisi rant, notwith- standing sec. 7. Prius in January last. art. 9. of the con- stitution ; and a private person The suit was against John Hart, George Peters, John hit peril : but Fries junior, and Jacob Wenn. Hart and Peters pleaded tju. Hardv. 123. (4) Id. 264. (c) 10 Johns. 95. (O 5 Burr. 2590. (e) 2 Bro~one<25j. (/) 10 Johns. 21. 318 CASES IN THE SUPREME COURT 1814k The charge was right. A private person may arrest fov WAKELY felony r 'or a high misdemeanor so nearly bordering upon v. felony as this. 1 Burn. Just. 140. But if not, the evidence HART shewed a felony ; and the Court will not send the cause back, if they see that the same verdict must be given; TILGHMAN C. J. The first question is as to the admis- sion of the record. The defendants contend, that having reason to think the plaintiff guilty of larceny, they arrested him as they had a right to do, at their ptril, so that it was incumbent on them to prove him guilty ot larceny, in order to make good their defence. They do not say that the bare finding of a bill is proof of guilt, but that the bill connected with the circum- stance of withdrawing from trial, was evidence proper to be laid before the jury. If proving the plaintiff guilty of larceny will justify the arrest made by the defendants, there can be no doubt but that the record was evidence, because flying from justice is a strong indication of guilt. But the plainuff insists, that by the constitution of this state, no arrest is lawful without a warrant^ issu< d on probable cause, support'' edby oath. Whether this be the true construction of the con- stitution is the main point in the cause* It is declared in the ninth article, sect. 7., " that the people shall be secure in. 41 their persons^ houses, papers, and possessions from unrea- *' sonable arrests ; and that no warrant to search any place or " seize any person or thing, shall issue without describing " them as nearly as may be, nor without probable cause sup- " ported by oath or affirmation*" The provisions of this sec- tion, so far as concern warrants, only guard against their abuse by issuing them without good cause, or in so general and vague a form, as may put it in the power of the officers who execute them, to harass innocent persons under pre- tence of suspicion ; for if general warrants are allowed, it must be left to the discretion of the officer, on what persons or things they are to be executed. But it is no where said, that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery, must be arrested on the spot or suffered to escape. So although not seen, yet if known to have committed a felony, and pursued with or OF PENNSYLVANIA. 319 without warrant, he may be arrested by any person. And even when there is only probable cause of suspicion, a pri- \>ate person may without warrant at his peril make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest. These are principles of the common law, essential to the welfare of society, and not intended to be altered or impaired by the constitution. The whole sec- tion indeed was nothing more than an affirmance of the common law, for general warrants have been decided to be illegal j but as the practice of issuing them had been ancient, the abuses great, and the decisions against them only of modern date, the agitation occasioned by the discussion of this important question had scarcely subsided, and it was thought prudent to enter a solemn veto against this powerful engine of despotism. I am therefore of opinion, that the de- fendants were justified in making the arrest, if they could prove the plaintiff guilty of larceny ; consequently the record tending to prove the larceny was legal evidence. The next question is on the admission of Fries and Wenn as witnesses, which was objected to by the plaintiff, on the ground of their being defendants in the action. There is no technical rule in the way of their admission. If a plaintiff includes persoos in the suit against whom no evidence is offered, they may be witnesses. The bare circumstance of being a defendant therefore is not an exclusion. These de- fendants however are implicated in the trespass, and as the law was held in the case of Lloyd v. Williams, Cases Temp. Hardw. 123, they are incompetent. But I agree with the principle laid down by the Supreme Court of New Tork in Stockholm v. Jones, 1O Johns. 21, (a principle long adopted by this Court} that the interest which the witness has in the verdict, is the criterion by which his competency is to be ttsted. If he be interested in the question but not in the verdict, it goes to his credit but not to his competency. It was in the power of the plaintiff to have conducted his cause so as to exclude the testimony of Fries and Wenn; he might have laid them under a rule to plead, and taken judgment by default, and then they would have been interested in the verdict, because the same jury who tried the issue against the other defendants, would have assessed joint damages against all. But as ttye record stands, Fries and Wenn had 1814. W A KELT V. HART 320 GASES IN THE SUPREME COURT 1814. WAKELY v. HART etal. not the least interest in the verdict against Hart and Peters 'and were just as indifferent as if they had been sued in several actions. They were therefore competent witnesses. The last reason urged for a new trial, is that the judge charged the jury to find for the defendants, if they should be of opinion that he stole a watch, or received it knowing it to be stolen. A motion for a new trial is an appeal to the discretion of the Court. We are to look at the substance of the case, and consider whether injustice has been done. It may be that an inadvertent expression may fall from a judge, and yet the verdict be perfectly right. There is no need to decide whether an arrest may be made without warrant, for such a misdemeanor as receiving stolen goods knowing them to be stolen. It is an offence which approaches very near to a felony, and its effects are more pernicious than the felony itself, for if there were no receivers there would be but few felonies, and one receiver may support twenty felons. But supposing that the judge's charge was inaccu- rate with respect to the receipt of stolen goods, still the ver- dict ought to have been for the defendants. They rested their justification on a larceny committed by the plaintiff, and in my opinion there was abundant evidence of the plaintiff's guilt. He was proved to be a man of bad character, and was found in possession of a stolen watch, of which he could give no account. He was indicted for stealing this watch, and being admitted to bail before the bill was found, he made default in his appearance, and forfeited his own recog- nizance and that of his surety. How could the jury enter- tain any doubt of his guilt, and what would be the use of sending such a cause to a second trial ? It appears to me that justice has been done, and I am therefore of opinion that judgment should be entered on the verdict. YEATES J. and BRACKENRIDGE J. concurred. Judgment for defendants. OF PENNSYLVANIA. 321 }b 321 IsrSOS 1814. 2sr2o? BIDDIS administrator of BIDDIS against JAMES. fhilade i pAia Monday, Sg 37 IN ERROR. ^ ul y 25 - 2 87i._ An edition of 407 3 K?li^ P trr *^ C ' aws > i--' 467LJL-J RROR to the Common Pleas of Wayne county. ed under the The action in the Court below, was brought by James against George Biddis administrator of John Biddis, d u n ^L weU L. to recover 1O,OOO dollars, the amount of a prize drawn by the public laws it the plaintiff in a lottery made by the intestate in his lite ^i^a'si'iit to re- time, but not drawn till after his death. over : t P ri , ze drawn in a lottery, The act under which the lottery was formed, was passed the scheme of on the 20th January 1806, entitled " An act author izing^'^'f " John Biddis to vend his patent rights, for manufacturing for com ply ing * r with the lnw, filed " potatoe starch, sago and hair powder, and for opening oriu the secretary's u reducing offcast woolen clothing to wool ;" and contained nt othe bak P of but one section, in the following words : " That it shall be ext ' cutive mi : . nutes, are evi- u lawful for John Biddis to vend his aforesaid patent rights deuce against the "for eighteen months from the date hereof, according to BJJJSEJ^jJ^" 41 plan to be by him lodged with, and to be approved of byi >roof that he had . . executed the ** the Governor of this Commonwealth ; he the said John bond < deposited "Biddis giving the necessary sureties for the faithful per-j^ c ^ e * : s * me *' formance in the premises, and for a full and complete dis- tiine shewn tllstt ,._ . - , . . , , there was no w closure and exemplification ot his patent rights, at the end other bond or 44 of the said term of eighteen months, any lavr to the con- ^ e m lhe 41 trary of this act notwithstanding." The oath of a , . i r i 11 esc i r. i person who at- On the trial or the cause, it appeared that john Biddis tended the draw- submitted the plan of a lottery to the governor, and that itjj besVe^iJnce was approved by him within eighteen months of the date of tliat M particular i cw F r>- t t- i IT 11 numlier drew a the law. John Biddts in his lite time signed about loOO certain prize. tickets, and authorized his son John to sign tickets in his lot^r^^souTalter name, which he did in the life time of his father to the tlie tim e limited P , rr,. . , . , . bv law for com* amount ot about 35 or 37,000 more. Ihe intestate died in pietmg the sales, March 180r, and after his death the defendant and the ^ n r ^ r [g* familv concluded to proceed and complete the business. On i> rize tl|at ma >' be i j-i j i t drawn against it. the 8th February 1808, the governor commissioned persons to superintend the drawing of the lottery ; and in that xvinter John Biddis the son, with the concurrence of the defendant, signed tickets in the name of his father to the amount, in- cluding those previously signed, of about 124,OOO, of which between 8O and 100,000 were put into the wheel. The tic- VOL. VI. 3 S 322 CASES IN THE SUPREME COURT 1814. BlDDIS V. JAMES. ket of the plaintiff, as was the case with all those produced, bore date the 1st April 1806. The drawing commenced on the 23d February 18O8, and ended on the 1st August 1809, on which day the plaintiff's ticket drew a prize of 10,OOO dollars. Many witnesses were examined to shew that the plaintiff's ticket was issued after the expiration of the eigh- teen months, and to prove that the signature was not that of John Biddis the intestate j other witnesses were produced to repel this testimony, and to shew that James had purchased this and seventy-nine other tickets, without any knowledge of the defendant's proceedings. The plaintiff in the course of the trial offered, 1. a printed copy of the act of 20th January 1806, contained in a pamph- let of the laws, purporting to have been printed by Francis Bailey in the year 1806, under the direction of T. M. Thompson, secretary of the Commonwealth, in pursuance of a resolution of the legislature. 2. A paper writing purporting to be a scheme of a lottery signed John Biddis^ and proved by a clerk in the office of the secretary of the Commonwealth, to have been found on the files of that office, and by him copied into the book of executive minutes ; and that it was the only scheme of a lottery found in that office purporting to have been signed by John Biddis. 3. Two bonds purporting to be signed and sealed by John Biddis and others, in the presence of two witnesses, and proved by the same clerk to have been found on the files of the secre- tary's office, with the said scheme of a lottery, and copied into the book of executive minutes. 4. A journal of the drawing of the lottery, proved by the deposition of Michael Fortune to have been truly kept by him from the commence- ment to the termination of the lottery, and by which it ap- peared that the plaintiffs ticket drew the prize in question. To all these the defendant's counsel objected, but the Court overruled the objections, and finally charged the jury, that according to the act, John Biddis had only the power of vending his patent rights during the eighteen months, that it was exceedingly improper for the administrator to sell after that time, and that the District Court for the city and county of Philadelphia had decided correctly in refusing to compel a payment for tickets purchasedsafter that time from the agent of the lottery. But that the plaintiff came honestly OF PENNSYLVANIA. by the ticket, without any knowledge of the circumstances, that the misconduct was entirely on the part of the defend-" ant, and therefore if the jury were of opinion that the plain- tiff acquired the ticket innocently, he was entitled to recover the prize with interest, although the ticket should have issued after the eighteen months, in consequence of the fraud and artifice practised by the defendant. Bills of exceptions were tendered to the opinions of the Court upon the evidence, and to the charge. Sergeant and Ingersoll for the plaintiff in error. 1. The pamphlet of the laws was not evidence, because the act in question being a private act,of which the Courts do not take notice, the only mode of proof is by an exem- plification from the Roll's office, or by a sworn copy. Gilb. v. 10. 12., Peaks 26. The pamphlet was evidence of the public laws merely. In the Commonwealth v. Frazer and Porterfield, tried before the Chief Justice and Teates J., at an Oyer and Terminer in January 1813, it was decided that the printed copy of a law of Delaware published by authority of the state, was not evidence of a private act. The opinion of C. J. Marshall in 4 Crunch 384, was obiter. 2. 3. The scheme should have been proved. There was no evidence that it had been placed in the office by Biddls or by any one for him, nor was his handwriting to it prov- ed. This was the very foundation of the plaintiff's suit, and better evidence was in the power of the party than he fur- nished. The same objection applies in a great degree to the bonds* There was no evidence of the handwriting of wit- nesses or parties. 4. The journal was inadmissible, because the drawing was illegal ; most of the sales, and the whole of the drawing, having taken place after the death of Biddis^ whereas the lottery was a personal trust in him. 5. The charge of the Court was clearly wrong. In the first place because the fraud of the defendant, if he was guilty of any, could not make the estate of the intestate liable; and the judgment here is against the estate of the in- testate, the defendant being sued in his representative cha- racter. In the next place, because there was no cause of action upon a ticket issued after the eighteen months. By the act of 17th February 1762, lotteries are declared to be 323 1814. 13 1 mm v. JAMES. 324 CASES IN THE SUPREME COURT 1814. BlDUIS V. JAMES. common nuisances. A penalty of 500/. is inflicted upon the * maker, and 20/. on the purchaser, of a ticket. The act of 20th January 1806 gave to Biddis the right to sell his patent rights, by lottery, only for eighteen months after the date. After that the sale of tickets was illegal, and passed no right. A bond for the price of them was held in the District Court to be void. Barton v. Hughes (a). Whatever might have been the conduct of the respective parties, no court of this Commonwealth can do less than re- fuse their aid to the plaintiff, because the contract was in violation of a public law. May bin v. Coition (), Mitchell v* Smith (c), Huntv. Knickerbocker (d}. In addition to this limi- tation of time in the law, there is a personal limitation to Biddis. Neither the act nor the nature of the trust extends to administrators. Biddis could not have assigned the privilege ; it could not have been taken in execution ; it was not as- sets in the hands of executors. Where the law intends to embrace representatives, as in the case of copyrights and patents, it names them. 1 U. S. Laws, 118., 2 U. S. Laws 20O. It follows from this that a sale within the eighteen months, but after Biddis's death, passed no right. The act of 21st March 1806 has nothing to do with the case. It only prevents the application of the common law to cases provid- ed for by the act of assembly, further than may be neces- sary to carry the act into effect. Here the act of 1762 can not be carried into effect without defeating the contract. jf. Eiv'mg and Tilghman for the defendant in error. 1. There is no difference between public and private laws, when both are printed by public authority. The printed, book is as high evidence, as an exemplification under seal. The reason why in England a distinction has been taken, is because private statutes are not printed by the king's printer, and the judges it is said take notice of public sta- tutes, and only refresh their memories by the book. Where howeyer a private statute is so printed, in consequence of its relating to many persons, as to a whole county, it may be read from the statute book even in that country ; 2 Bac. Abr. 609 ; and in our own state, this distinction between public and private statutes was done away in the case ol; () 2 Browne 48. (i) 4JDatf. 2GJ. (c) 1 Binn. ItO. (rf) 5 Johns. 3"27. OF PENNSYLVANIA. 325 Thompson v. Musser (a), where the court received after full argument the printed laws of Virginia as evidence of a pub- lic statute, of which at the same time, being the law of ano* ther state, the judges certainly could not take notice, more than of a private law. In Young v. The Bank of Alexandria (), C. J. Marshall considers a private law to be well prov- ed by a copy of the laws printed by public authority. 2. 3. The scheme was the only one in the office, and there- fore as Biddis had made a lotterv, which was drawn, and the plan of which he was bound to lodge with the governor, this circumstance was at least presumptive evidence that the scheme was placed there by him. His signature to it was unnecessary. So as to the bonds* In an action upon them, it would have been necessary to prove them ; but when the only question was whether they had been deposited in con- formity with law, their being genuine or not was of no im- portance between these parties. 4. Whether the drawing was lawful or otherwise, the journal supported by oath was the best evidence of the fact, that the plaintiff's ticket drew the prize. 5. The charge of the court is not liable to the objections which have been raised. The act extended to the administra- tors of Biddis, because it was a trust coupled with an inte- rest. If he had sold many tickets in his life time, and then died, the purchaser might have insisted upon a drawing, and what injury could arise, or what difference did it make, to the public? The charge of the judge must be taken alto- gether. There was enough before the jury to shew that the ticket was sold within the eighteen months. But if not, still it does not follow that the sale was void. It was not the intent of the law that Biddis should be absolutely restricted to that time. The lottery was concluded within a reasonable time. In the Earl of Salisbury v. Bennet (c), a legacy of 20,OOO/. was to be reduced to 10,OOO/. unless the legatee married after sixteen, and with the consent of three persons ; she married with their consent, but before sixteen, and the full legacy was decreed, the time being only a circumstance. Lapse of time in tendering a conveyance or the like, is con- stantly relieved against. Gibson v. Patterson ( *' tered in the prothonotary's office, the plaintiff and defen- " dant may either in vacation or term time, by themselves, " their agents or attornies, consent to a rule of court, for *' referring their cause to certain persons, to be by them mu- " tually chosen." Now this is exactly what the parties did. But it is objected, that when the rule of reference was taken MASSET v. THOMAS. (a) 1 Burr. 623. (6) 1 Stra. 71. (c) Cro. Eli:. 235. (rf) 5 JRurr. 2673. (e) 2 Binn. 450. (/) 1 Sail. 364. (?) 2 W. Black. 892. 336 CASES IN THE SUPREME COURT 1814. out, there was no action depending. That is begging the MASSEY question. The same paper which contained the agreement v. to refer, contained also an agreement to enter an amicable THOMAS, action. Each must go in its order. The action is entered first, then follows the reference. This is so simple, so natural, so agreeable to the intent of the parties and the intent of the law, that I cannot consider it as at all doubtful. If the agreement had not been carried to the prothonotary till after the making of the award, the case would have been different, and would have fallen within the first section of the act. In that case it would have been necessary to prove the agreement by a subscribing witness ; but it was carried by the parties themselves, and delivered to the prothonotary as the foundation of the proceedings. Having ascertained the act under which the proceedings were had, I will con- sider the objections to the proceedings themselves. It is said, first that the action could not be instituted without a writ in the form prescribed by the twelfth section of the same act, 21st March 1806, by which it is declared, that " all writs of ejectment shall be in the form following " &c." But this is to be understood as applicable only to cases in which the suit is commenced by writ, and by no means as impairing the force of the first and second sections, by which all persons are permitted to enter suits without writs. The objects of this act are very different; one relates to arbitrations, the other to proceedings in court without arbitration, and it is the manifest intent of the act to en- courage arbitrations. The second objection is that there is no declaration or description of the property demanded by the plaintiff. It has been more than once determined by this Court, that when the proceeding is by way of arbitration, neither declaration nor pleadings are necessary. We see the inconvenience very plainly. But such is the system established by the legislature, and such it must remain until altered by a competent au- thority. The last and most serious objection is, that the award is so uncertain that no judgment can be entered upon it. It is in these words, " we find for the plaintiff by running a line " beginning &c." The line is well described, but the diffi- culty is, that one line comprehends no space. It is the duty of the Court to support the award, if they can, because the OF PENNSYLVANIA. 337 case has been decided on its merits, and the objection is to form. From the agreement of the parties and the award" itself, we understand that the plaintiff and defendant held adjoining lands. Then the dividing boundary being fixed, the meaning of the award is, that the plaintiff is to have the land up to the dividing line and adjoining his other land. Cerium est quod cerium reddipotest. The quantity may be ascertain- ed by measurement* The plaintiff must take possession at his peril. If he takes land not included in the award, the Court will do justice on a summary enquiry. In very few declarations in ejectment is there any actual certainty. The plaintiff demands so many acres of land, so much pasture, so much wood, and situate in a certain county* But until it is shewn, no person could discover it from this description j and when it is shewn, it is of no manner of consequence whether the quantity accords with the declaration or not, provided it does not exceed it. Yet that is held good enough. In fact it is so uncertain, that the sheriff has a right to de- mand an indemnity before he delivers the possession ; for he trusts to the plaintiff's shewing, not being able to make any thing out of the record. I am therefore induced to sup- port the judgment entered on this award. If the defendant should think himself injured by the possession taken by the plaintiff, he may apply to the Court for speedy redress. YEATES J. It cannot be denied that it was the intention of the parties to settle a disputed line by judges of their own choosing. The meaning of their agreement plainly was, that an amicable action should be entered in ejectment, and their respective rights be decided by the persons they had nominated. It does not plainly appear that the parties in- tended this reference should take place under the act of 21st March 1806, although the referees seem to have so considered it, by being qualified and returning their report under seal. But if it be necessary in order to effectuate the agreement, that it should be considered as having taken place under the practice which has obtained under the old defalcation act of 1 705, the Court will so consider it, ut res mag-is valeat quam percat. The entry of an action of ejectment presupposes a claim of lands by the plaintiff in the possession of defendant. The VOL. VI. 2 U 1814. MASSEY v. THOMAS. 338 1814. MASSEY v. THOMAS. CASES IN THE SUPREME COURT former recovers only such part as he can shew title to. By such entry of an amicable action, the defendant waives the necessity of issuing a writ, and of course every thing contained in it. I cannot suppose that the legislature meant to prevent parties appearing without previous process. An early determination of the controversy seems to have been a favourite object. A controversy respecting the boundary line between two persons necessarily implies that their lands adjoin ; conse- quently when the true division line is fixed, the parties re- spectively must recede from their former possession, or advance in their possession up to such line. The juxta position of their other lands readily determines on which side of the line their several lands lie. I think the award therefore sufficiently certain in ascertaining the boundary according to the submission. If the plaintiff below should take possession of land not found for him, the Court will interpose in a summary way, and grant the defendant below relief. I am of opinion, the judgment of the Common Pleas should be affirmed. Philadelplda, Monday, July 25. BRACKENRIDGE J. concurred, Judgment affirmed. M'ALLISTER against MAR SHAH-. 6b 338 2sr339 5r 225 2pw 92 3pw 91 6ws311 4 449 An assignment ripHIS was an ejectment for a brick messuage and lot of executed by an J _ insolvent dfebtor, J. ground, situated on the south side of Chesnut street in the city of Philadelphia. The cause was tried before the Chief Justice in Novem- with an under- standing, that part of tire pro- pei ty assigned shall" be conveyed ber last, when by consent a verdict was entered for the to trustees for the jrj L i ri_/~- use of his family, defendant, subject to the opinion of the Court upon the is so far as it ics- ev idt:nce, which by the report of his honour was as follows: pects the pi oper- T ^ J ty conveyed in The plaintiff, who was a bona fde creditor of Charles roHy, fraudulent Marshall the defendant and his son Charles Marshall jr. at and void as to ail ^ t j me o f t ^ e assignment hereafter mentioned, instituted creditors who do p not assent to the a suit against them in this Court to September term 1805, the a nonss n ent a ing^ taine( l a judgment at March term 1806, issued his fi>fn* creditors may f or 2 y 04 dollars 5O cents in December following, by virtue ttirCt.' it in cJtccu." tion- OF PENNSYLVANIA. 339 of which the premises in question were levied on ss the 1814. property of the defendant-, and on the 5th of April 1807, M*ALLISTER became the purchaser at sheriff's sale for the sum of 500O v. dollars. At the time of the sale the plaintiff had notice of a MARSHALL. claim to the property by Thomas Parker and others, trustees of the defendant's wife and children j and upon receiving his deed from the sheriff, he paid him only 140 dollars 59 cents the amount of the costs, and retained in his own hands the amount of the purchase money, to wait the event of this suit. The title under which the defendant asserted his posses- sion, stood as follows : Charles Marshall and Son having stopped paymentj a general meeting of their creditors took place in the city of Philadelphia on the 8th of January 1805, when Henry Pratt, John Morrell and William Smith^ were chosen assignees, and were directed to examine the books, accounts and affairs of the debtors, and to report to the creditors at another meeting, their opinion of measures best for the creditors^ and also for Charles Marshall and Son. The number of creditors who attended this meeting, or the amount of debts due to them, did not apptar ; nor di J it ap- pear that any report was made. A power^of attorney bearing date the 28th of January 1805, was executed to the persons above named as assignees, by fifty seven of the general creditors, authorizing them, 44 to settle, compromise with, and receive from the said " Charles Marshall and Son jointly or separately, for our use u and on our accounts, such monies, goods, properties or " effects to be assigned to our use by the said Charles Mar- *' shall and Son jointly or separately, or any other person or " persons on their account, as they the said attornies may " think proper ; and to accept the same in full satisfaction and ** payment of our and each of our demands ; and in our and " each of our behalves to sign and execute to the said " Charles Marshall and Son jointly or separately, a receipt " in full, release, or releases under seal, or other laruful ac- *' quittance of all demands &c.; and to make with them or any " other person on their behalf, on our accounts respectively, ** such contract, composition, conveyance or assurance, ax *' under all the circumstances of the case they may deem most " advisable ; and to dispose of and convert into mont y all " the property or debts to be received as aforesaid, anti pay 340 CASES IN THE SUPREME COURT 1814. u the same, and all other money to be received under this M'ALLISTER " trust j equally and rateably among us, in proportion to our v. " several demands*" The execution of this power by 37 MARSHALL, creditors was proved by a subscribing witness on the 5th of April 1 805, by one other on the 6th, by 1 5 others on the 16th August following, and the execution by four others was not proved. A like power was given by five lien credi- tors, saving their respective liens, dated the 31st of January 1805, and executed on the 9th, llth and 12th of February. The plaintiff never signed the power, nor assented to the proceedings. On the 14th of February 1805, Charles Marshall and Son, by their deed duly executed, reciting the two powers of attorney, in consideration thereof and of one dollar, trans- ferred and conveyed to the said assignees all their property real v personal and mixed, including the premises in the ejectment, which then belonged to the father, in trust, that they or the survivor should sell the real estate and collect the debts, and pay and distribute the money thence arising, in equal proportions to and among the joint and several cre- ditors of the said Charles Marshall and Son, or either of them, (provided the sum to be paid to the separate creditors of Charles Marshall junior did not exceed 4OO dollars) *' who shall accept the same in full and absolute satisfaction " and discharge of their respective claims and demands , and u -who have already executed, or shall, if resident in America, "within six months from the date hereof, or if resident in " Europe, within twelve months from the date, execute the * l said power of attorney" The witnesses to this deed were Benjamin Marshall and Joseph Scott. By deed dated the next day, the assignees " by virtue and ** in pursuance of powers vested in them by the creditors of ," Charles Marshall and Son, and in consideration of one " dollar paid to them by the grantees, and for divers other " good considerations," conveyed to Thomas Parker, Joseph Morris, and Thomas Morris junior, the premises in the ejectment, a ground rent of 15/. 5*. Qd. per annum, and all the plate and household furniture in the house, " in w trust for the s-jle and separate use of Patience Marshall, "wife of the said Charles Marshall, for her life, and after ** her death for the use of her daughters Elizabeth, Pa- OF PENNSYLVANIA. 341 " tience, and Mary Ann, as tenants in common in fee simple" 1814. with power in the mother to devise the premises for seven MCALLISTER years j the grantors providing at the same time, that they v. should not be considered as covenanting that they had law- MARSHALL. f ul authority to make the conveyance, but oply as passing their right, title and interest, as derived from the convey- ance made to them by the said Charles Marshall and Son, and the power vested in them by the creditors. The wit- nesses to this deed were also Benjamin Marshall and Jo- seph Scott. On the 9th May 1806, the assignees, by virtue of the two powers, executed a full and complete release to Charles Marshall & Son, of all claims and demands of the creditors who had signed them. The debts of Charles Marshall &? Son amounted to about 113,000 dollars. The property assigned for the use of the creditors, yielded abdut 51,000 dollars, exclusive of what was given to the wife and children, which was variously estimated, but was reasonably worth 1O,OOO dollars. The creditors who released, had received before the trial, about 37$ per cent, on their debts, and there remained about 110O dollars to be distributed. It did not appear at what time the power of attorney of the 28th January 1 805 from the creditors was executed ; but it was probable that a majority of them signed it before the assignment. All the real estate belonged exclusively to Charles Mar- shall at the time of the assignment. The question was whether the deed of assignment, and subsequent conveyance in trust for the family of Charles Marshall, were sufficient to protect the property from the plaintiff's execution. Hopkinson and TiJghman* for the plaintiff. The point in question is whether a debtor can by agreement with some of his creditors, exempt part of his property from the demands of the others. That this has been the case here cannot be doubted. The assignment of the 14th, and the conveyance of the 15th February, are clearly one transaction, proceeding * Mr. Tilghman represented another judgment creditor of the defendant, who bad neither signed the power of attorney, nor assented to the proceedings. 342 bASES IN THE SUPREME COURT 1814. from the same agreement, executed at the same time, and be- rTT ~ fore the same witnesses, and were the result of a compromise Vi between the debtor and the attornies of his creditors. It is MARSHALL, not the case of an absolute surrender of all the debtor's pro- perty, and a subsequent free gift of part by the creditors J but it is the nominal surrender of the whole, upon a previ- ous stipulation and compact that part should be returned. Far as our courts have gone, they have never come up to this. They have never permitted a debtor to make the law for his creditors, as to the amount which he should surren- der, but merely as to the terms upon which the whole should be accepted. The utmost reach of kindness to him has been to permit his demanding a release, as in Lippincctt v. Bar- ker (a); but in that case it will be recollected, that until the death of the late judge Smith, the Court were equally divid- ed, and that the majority, who ultimately ruled it, only re- cognize the release, where a sufficient number of creditors to absorb the whole property, sign it before an execution appears. In this case the premises were never out of Charles Marshall. The agreement that the assignees should give it to his family, was in point of law fraudulent and void, as to all creditors who did not assent. It was himself that gave, or rather that attempted to give to his family ; an abortive attempt, which passed nothing, but left the property in him as it stood before. If it passed by the assignment, the le- gal estate was in the assignees in trust for the creditors, who having signed a release, the property reverted to the grantor, subject to our exceptions. The assignment is void as to the plaintiff for another rea- son. Before he could receive any thing, he was obliged not merely to sign a power of attorney to execute a release, but also to make any contract, composition, conveyance or assurance, -which the attornies might deem most advisable ; that he should surrender his own judgment, his own will, his entire demand, into the hands of third persons, to do with it precisely as they pleased, and to return to the debtor any part short of the whole of his property. This is a condi- tion too monstrous to be tolerated. One creditor cannot force another to make a present to the debtor, and to take what persons not of his own choosing may say he ought to have : a} 2 Sinn. 174. OF PENNSYLVANIA. 343 and although most of the creditors agreed to this, that does 1814. not alter the case, but shews how perfect the scheme of MALLISTER coercion was, and that the toleration of it will make debtors v . the masters of their creditors. Though we have not paid MARSHALL. the sheriff, he is liable for the purchase money if we suc- ceed. We however only want our money ; and we are wil- ling that the judgment, if entered for the plaintiff, shall be defeasanced upon payment of the principal, interest and costs of the two judgments, although the premises are worth double the sum. Levy and Ingersoll for the defendant. The plaintiff cannot disposses the defendant, because upon his own shewing the latter is entitled to the possession. He has an equitable right to the house, until the difference between the plaintiff's judgment and the amount of the sheriff's sale is paid to him. Chapman v. Tanner (a), Walker v. Preswick (), Faivell v. Fawell (c). But the assignment was good. Where is the fraud, if, when there is no bankrupt law, the creditors and debtor make compromises upon the principle of the bankrupt law ? They have done no more here. Sixty-six out of sixty-nine creditors have agreed to the arrangement. The debts due to those creditors amounted to nearly twice the value of all the real and personal property of Charles Marshall &? Son. They have given to his family a portion of what he had given to them, or if the plaintiff prefers it, they agreed to give it before the assignment, for it makes no difference. They had a right to do so. A debtor may prefer certain creditors ; he may exclude others ; he may make a release the condition of his preference ; he may convey to them the whole or any part of his estate not exceeding their debts, which they may accept in satisfaction, and do with it as they please. Then construing the arrangement in the strongest way against him, he has given to certain creditors, in ex- clusion of the plaintiff, all his property for debts nearly double its amount ; and they, whose contracts with the debt- or do not concern the excluded person, have previously agreed to release him, and to convey part of the property for his family. If he had given them more than the amount (a) 1 fern. 267- (ft) 2 Vee. 622. (r) Ambl. 72*. 344 CASES IN THE SUPREME COURT 1814, of their debts, the case would have been different ; but when M'ALLISTBR ^ e cou ^ have absolutely preferred these creditors, and as v . absolutely have excluded the plaintiff, and have made the MARSHALL, same agreement with the former which it is alleged was made here, how can the plaintiff object that he has been ex- cluded virtually. Charles Marshall's family have none of his property, but the property of the creditors who signed the power; and the creditors had a right to give his family a part, because the whole did not amount to a complete satisfaction. Every thing that was done, proceeded from assignees chosen by the creditors, and possessing their con- fidence. It was not a case in which the creditors were sub- ject to the law of the debtor, to by any means the extent of Wilt v. Franklin (a), where he chose his own assignees even without their consent, and made all his arrangements at his own pleasure. But if the conveyance to the trustees of the wife is void, the legal estate nevertheless passed to the assignees of Mar- shall in trust for the creditors. It did not remain in Charles Marshall, nor was there a trust for him. The plaintiff there- fore purchased nothing at the sheriff's sale. TILGHMAN C. J. after particularly stating the case, e- livered his opinion. When the cause was argued, I strongly inclined to the opinion that the trust might be supported^ because the cre- ditors by whom it was created, had debts fairly due from Charles Marshall and Son, to a much greater amount than the value of their whole property ; so that the relinquish- xnent of part in favour of the family, seemed no more than giving up what was their own : and although this view of the case is just, so far as concerns the debtor and those creditors who wished to provide for his family, yet on full consideration of the bearing of this transaction on other creditors, I have been induced to alter my opinion. We have no bankrupt law. In considering therefore what an in- solvent debtor may do, and what he may not do, as to the disposal of his estate, we must havejrecourse to the common law, and the provisions of the statute, 13 Eliz. c. S. The debtor may prefer one creditor to another, and for this pur- (y 25 HT'HIS was a writ of error to the District Court of the A assignment , , it, ,: i_ i i i bv commissioners city and county of Philadelphia, where a judgment had O f bankrupt in been rendered in favour of Moreton the plaintiff below, up- En ff land ' d es l not prevent an OH the following Case. attachment of the bankrupt's effects by an American "Walter Morton the plaintiff is a merchant residing in cre(lltor - ** the city of New Tork, and a citizen of the United States, " and Thomas Topham, the defendant in the foreign attach- *' ment, is a subject of the King of Great Britain residing " in England. " The defendant Thomas Topham, through the plaintiff's " agent in Liverpool, transmitted to the plaintiff a consider- " able quantity of goods to be sold on commission, and re- " ceived from the agent an advance on account of them. " The goods were sold in this country, an account sales " was rendered on the 20th July 1 807, and the nett pro- " ceeds of sales were less than the sum advanced in Liver- "pool* This attachment issued for the balance on the 5th "December 1807. "On the 22d September 1807, a commission of bankrupt, " from the lord chancellor of England, issued against the de- " fendant in the attachment, on the 9th October in the same u year a provisional assignment was executed of all his es- " tate real and personal, and on the 29th of the same month " the final assignment was executed. "Goods of Thomas Topham are admitted in the hands " of Richard Milne the garnishee, which were the property "of the defendant before any act of bankruptcy committed "by him, and it is also admitted that their amount equals " the sum found in the inquisition. " The question submitted to the Court is, whether the " goods in the hands of the garnishee are liable to this " attachment, notwithstanding the bankruptcy of the de- " fendant? " If the Court shall be of opinion that they are so liable, u judgment to be entered for the plaintiff. But if the Court " shall be of opinion that they are not so liable, then judg- VOL. VI. 2 Y 354 1814. MILNE v. MORETON. CASES IN THE SUPREME COURT " tnent to be entered for the defendant ; it being agreed, that * " for the purposes of a writ of error, either party shall be at " liberty to consider the judgment of the Court which shall " be rendered hereupon, as though it were rendered upon " the finding of a special verdict." The case was twice argued in this Court, first at the ad- journed term in June 1813, by Montgomery and Binneyfor the plaintiff in error, and by N. Chauncey and Chauncey for the defendant ; and again in March last, by the same counsel with the addition of Ingersoll for the plaintiff in error, and Rawle for the defendant. Arguments for the plaintiff in error. The attachment must be defeated for two reasons, 1. Because Topham's debt hav- ing been contracted in England, with reference to the laws of England, it was discharged by his certificate (a). 2. Be- cause by the assignment of the commissioners, Topham's effects in the hands of Milne, were equitably transferred to the assignees. 1. The debt was contracted in England, because the money was there advanced to the bankrupt, the goods were furnished there, and there the implied assumpsit originated, that in case the money advanced should exceed the nett proceeds of the goods, Topham would pay the difference. The law of England was therefore in the view of the parties. The pro- mise was to be performed there. Robinson v. Bland (), Champant v. Ranelagh (c). This being the case, by a variety of decisions a discharge under the law of that country, dis- charges the debt. Burrows v. Jemino (uin v. Keefe (), Smith v. Buchanan (A), Pedder v. M- Master (z). At all events Top- ham could not have been held to bail by Moreton^ and there- fore his property could not be attached. 2. The assignment of the commissioners passed Topham's interest in the debt due to him by Milne. Any appropriation or transfer of a fund, though it be merely equitable, will prevent a subsequent attachment. In (a) Although the case does not state a certificate, it was argued on both sides upon the ground, that a certificate had been granted. (6) 2 Burr. 1079. (e) 1 Browne. Jlpp. 30. (A) 1 East 6. (c) Free. Chan. 128. (/) 2 Johns. 241. (f) 8 D. & E. 609. (rf) 2 Stra. 733. (,) 2 H. Black. 553. OF PENNSYLVANIA. 355 Fitzgerald v. Caldwell, formerly decided in this Court, a 1814. letter by a creditor to his debtor, appropriating the debt to a MILNE " third person, was held to be a sufficient transfer. In Sharpless v . v. Welsh (a) the same. Strictly there can be no legal assign- MORETON. ment of a chose in action. All acts which devest the credi- tor's interest are therefore upon a footing ; and any thing which deprives him of his beneficial title to the debt, pre- vents his creditor from appropriating it to himself by attach- ment. An assignment by commissioners of bankrupt is equiva- lent to a voluntary assignment. Debts due to the bankrupt have in contemplation of law no locality ; they attend his person, are subject to the same law, are transferred by as- signments in conformity with that law, follow its distribu- tion in the case of an intestacy, Pipon v. Plpon (), and in the case of testamentary disposition will not pass if there is a want of such conformity. This Court in the case of Des- esbats v. Berquier (c) has solemnly established this doctrine. It is a binding authority, and must carry the Court to all its legitimate consequences. The debt due to Topham^ must then be considered as within the same English jurisdiction with himself, present at the same domicil, and governed by the same law. Why then shall not a statutory transfer pass it? It is not allowing extra-territorial effect to the statute, for the chattel on which it operates is within the territory of the law maker. It does not contravene the will of the bankrupt, because as a subject of the country, he has assent- ed to the law, and all proceedings under it ; and he brings himself voluntarily within its provisions, as a trader. It is not without consideration, but upon the best, the payment of debts. It has accordingly been respected by all nations, as a sufficient transfer to prevent a subsequent attachment. By England as early the year 1760, in the case of a cessio bono- rum in Holland. Solomons v. Ross (a//.278. (d) 1 H. Black. 131. (,) Coopers Bank. Lcit^ (b) Ambl. 25. () Id. 132. App. 27. fr)ljWnn.345. (/)/'/. 132. (ft) Ib. 356 CASES IN THE SUPREME COURT 1814. application of it, has been sanctioned in a great variety of jVI ILNE cases ; Hunter v. Potts (a), Sill v. Wars-wick (), Smith v. v. Buchanan (c), Waring v. Knight (d); in Massachusetts, Good- MORETON. w ' m v. J ones (>), i n New Tork, Burd v. Pierpont (/), Burd v. Caritat (). Every day our own courts give it their sanction. They allow foreign assignees to sue, at least in the bank- rupt's name for their use ; and they would unquestionably disregard the bankrupt's release made at a subsequent day. Upon what ground can this be, unless an equity passed by the commissioners' assignment? The interest of all nations requires that this comity should be reciprocally shewn ; and it would be with an ill grace disregarded here in reference to England^ when reciprocity has at length come to be the only measure of the respect we shew to discharges of the person obtained under foreign laws. Boggs v. Teackle (A). Policy should lead us to adopt the rule. It is in favour of an equal distribution among creditors, and against particular preferences. There is no case against us which ought to be regarded, because in none has the point been argued, or the authorities noticed. Burk v. Maclean (t), contains merely an opinion of Mr. Dulany. Wallace v. Patterson (<), cites no authorities, nor does the argument notice any principle. In Harrison v. Sterry (/), the Chief Justice says merely that foreign statutes do not operate a legal transfer. If they did, they would ope- rate by relation ; but this does not say that they are not equi- valent to voluntary assignments, which pass an equity. Arguments for the defendant in error. There are two questions in the case. 1. Whether the English statutes of bankrupt have taken- away the right of the defendant in error. 2. Whether they have rendered ineffectual the reme- dy he has chosen. They have not taken away his right. Supposing the con- tract to have been made in England, and with a view to performance there, this,would not follow. The lex loci go- verns as to the form, the proof, and the construction of the contract, but not as to its discharge. The law that dis- charges a debt must have jurisdiction over the creditor. a) 4 D. and E. 182. (e) S Mass. 517. ft) 1 Ear. & M 236. b) 1 H. Black. 665. (/) 1 Johns. 118. (fc) 2 /far. & M 463. (c)l East 11. (P-) 2 Johns. 342. (!) 5 Cran. 259. (<0 1 Cook B. L. 307. (A) 5 Sinn. 337. OF PENNSYLVANIA. 35T When the question relates to enforcing the contract, it must be decided by the forum where the suit is instituted; and if there is nothing in that law opposed to it, it is of no im- portance that a foreign law would not enforce it. Molman v. Johnson (a), Biggs v. Laurence (), Ptenoll v. White (c), Moland v. Fitzjames (uin v. O'-Keeff (c), Pedder \. M 1 - Master (d}, Smith v. Buchanan (e), Proctor v. Moor (/), Vanraugh v. Vanarsdale (), Smith v. Smith (A). It would be most severe upon the bankrupt, to permit his assignees to take all his effects in the United States, and to leave him exposed to his creditors there. The assignment by the commissioners is compulsory. The bankrupt takes no part in it. He does not even formally join them. All the proceedings are in invitum. It might as well be said that the robber suffers death voluntarily, be- cause he voluntarily commits the crime, and assents to the law of his country. It is not upon a good consideration as to debts due abroad, because it does not discharge him from them. The cases of Solomons v. JRoss, and jfollet v. Defonthieu, were in chancery, and do not seem to have been argued. The vicinity of Holland to England, probably rendered it convenient for those countries to respect each others' bank- rupt laws ; but convenience is the other way between Great () 1 Cook. B. Law 303. (6) Doug. 169. (c) 2 H. Slack. 553. (th edit., Lord Mansfield said that the statutes of bankrupt did not extend to the colonies, or any of the king's dominions out of En- gland; the assignments under such commissions took place between the assignee and the bankrupt, but did not affect the rights of any other creditors* This was settled in many OP PENNSYLVANIA. 571 cases, and particularly in Wilson's bankruptcy, wherein 1814. Lord Hardwicke declared, that the creditors had a right MILNE to affect the estate in Scotland, and get the advantage of the general creditors, notwithstanding the commission in Eng- land, although he would not permit them to come in under the commission till the other creditors were made even with them. Wilson's case is also mentioned with approbation in Waring v. Knight, Ib. 307., and in Le Chevalier v. Lynch, Doug. 161, (170) wherein it was adjudged, that money owing out of England to a bankrupt, might be attached by the law of the place after the bankruptcy, for a debt due before the bankruptcy. In Hunter v. Potts, 4 T. R. 190, the defendant's counsel puts the very case now before us as not admitting of doubt ; and the Court do not appear to deny the correctness of his remarks. u If," says he, " a subject of Rhode Island had " been a creditor of the bankrupt, it is not to be supposed " that the courts of law would have turned him round to u seek his remedy under the commission in England, if " even after the commission here issued, he had attached " the property of the bankrupt there." In Mawdesley v. Park & Beckruith, assignees of Campbell fc? Hayes, cited by Sergeant Hill, arguendo, in Sill et al. v. Worswick, before mentioned and stated at large in 1 H. Black. 680, it was held by the lords commissioners Smythe and Bathurst at Lincoln's Inn Hall, December 13th 1 779, that the assignment of the commissioners did not divest the property out of the bankrupt, as the debt was due in Rhode Island, but only gave the assignees a right to sue for it, who having commenced a suit first, and recovered judgment there, had gained a priority over the defendants ; and this although the case of Solomons v. Ross, and Jollet et al. v. Deponthieu et al., are admitted to have been decided differently. And in Smith et al. v. Buchanan et al., 1 East 11, before cited, lord Kenyan, after stating that assignees of bank- rupts, deriving titles under foreign ordinances, are permitted to sue in England for debts due to the bankrupt's estate, mentions the opinion of lord Talbot, that though the com- mission of bankrupt issued in England, attached on the bankrupt's effects in the plantations, yet his certificate would CASES IN THE SUPREME COURT 1814. not protect him from being sued there for a debt arising MILNE therein. v. In Bush et al. v. M'Clain, 1 Harr. & M'-Hen. 236, the MOHETOS. opinion of Daniel Dulany Esq. is given, wherein he distin- guishes between plaintiffs resident in Great Britain^ taking out attachments against the effects of bankrupts in Maryland, and country creditors pursuing the same measure ; and the Court acted on that distinction. And in Wallace et al. v. Patterson, 2 Harr. & M'-Hen. 463, where three persons residing in England became bank- rupts, and had effects in Maryland, it was adjudged, that an attachment would lie by a citizen of Maryland against one third part of the effects, to satisfy a debt due to him by one of the partners, and contracted in England. I now proceed to the case of Harrison v. Sterry et a/., adjudged in the Supreme Court of the United States in March 18O9, upon an appeal from a decree of the Circuit Court for the district of South Carolina, upon a bill in equity by Harrison for relief. The case in the Circuit court is re- ported in Bee's Admiralty Decisions 244, and on the appeal, in 5 Cranch 289. Six different classes of creditors claimed the effects in question : 1st Harrison the complainant, under a deed from Robert Bird in his own right and as attorney of Henry Mertens Bird and Benjamin Savage his co-part- ners, dated 3d December 1802, and on a similar instrument ,df writing without seal, signed by Robert Bird in behalf of the English and American firm, dated 31st January 1803. These were considered as fraudulent acts on the bankrupt laws, being made in contemplation of bankruptcy, and consequently void. 2d. The United States, who were de- clared entitled to priority under the act of congress of .3d March 1797, sec. 5. 3d. The American: and 4th. Bri- tish creditors, who had attached the effects of the part- nership in South Carolina on the 2d, 15th, 16th and 23d days of April 1803. Robert Bird alone had become a bank- rupt under the laws of the United States, and his interest of one third in the funds of the company, was unaffected by the attaching creditors, but passed to his assignees, subject to the claim of his co-partners upon a settlement of accounts. The lien of the attaching creditors upon this one third was removed by the bankruptlaw of the United States* 5th. Sterry OF PENNSYLVANIA. 373 and others, assignees of Henry Mertens Bird and Benjamin Savage, under a British commission of bankruptcy. The bankruptcy of Bird, Savage and Bird in London was de- clared on the 12th of June 1803, and a commission issued. On the 6th of February preceding they had stopped pay- ment. 6th. Aspimvall and others assignees of Robert Bird claimed under an American commission of bankruptcy. The house under the firm of Robert Bird and Co. stopped pay- ment at New Tork on the fifth of December 1803. Thomas Parker, who by consent of the creditors, had been appoint- ed an agent for all the parties concerned, to collect and receive the debts due to Bird y Savage and Bird, was also made a party in the appeal. In 5 Cranch 302, Marshall, Chief Justice, thus expresses the opinion of the whole Court, " as the bankrupt law of a 44 foreign country is incapable of operating a legal transfer " of property in the United States, the remaining two thirds 44 of the fund are liable to the attaching creditors, according 44 to the legal preference obtained by their attachments." It has been contended by the counsel for the plaintiff in error, that the word legal, used in the preceding sentence, is contra-distinguished from equitable, and must be under- stood in that sense. This does not appear to me correct, although I have had frequent occasion to lament the imper- fection of human language, used by persons of the most discriminating minds, and habituated to accuracy of speech. It would seem wholly unimportant to distinguish between legal and equitable effects, upon an appeal from a decree in equity on those effects in the particular case. I know of no equity arising from a transfer under a foreign law, which does not arise proprio vigore. It is agreed that the expres- sions, however general, are to be referred to the circum- stances of that case. I take the plain meaning of the words uf the Chief Justice to be, that a foreign law cannot transfer property in the United States, and this I think, will most clearly appear from the conclusion of the decree. " With 4 respect to any surplus which may remain of the two 41 thirds, after satisfying the United States and the attach- " ing creditors, it ought to be equally divided among all "the creditors, so as to place them on an equal footing 1814. MILNE MORETON. 374 CASES IN THE SUPREME COURT 1814. MILNE v. MORETON. " with each ether. The dividends paid by the British ' u assignees, and those made by the American assignees " being taken into consideration, this residuum is so to be " divided between them, as to produce equality between the " respective creditors." It is true, the attachments of the creditors were laid on the effects at Charlestown, previously to the issuing of the English commission against Bird, Savage and Bird, but that house stopped payment in London on the 5th of Feb- ruary 1803. How comes it then, that this commission did not effect an equitable transfer of the effects of the firm in the first instance, after payment of the debt due to the United States, by relation to the act of bankruptcy in Lon- don, according to the doctrine asserted by the concluding counsel of the plaintiff in error ? Or if the doctrine of rela- tion is not contended for, according to the argument of the counsel who preceded him, how does it happen, that after satisfying the United States and the attaching creditors, the residue was not ordered by the Court to be paid over to the British assignees, if the effects were equitably transferred by the British commission upon the principle of comity ? Why are all the creditors put upon an equal footing ? I know of no satisfactory answers which can be given to these ques- tions, unless on the concession, that the bankrupt law of a foreign country is incapable of operating any transfer, whether legal or equitable, of property in the United States. I have been thus minute in my observations on this case, because it has had considerable effect on my mind, in form- ing my judgment upon the subject before us. I regard it as a case in point, decided with unanimity in the highest Court in the Union, to whose jurisdiction the interests of foreign- ers are peculiarly intrusted. I admit that the American as well as British decisions assert, that the assignees under a foreign commission of bankruptcy are considered as the substitutes of the bank- rupt, and may support suits in their own names. As be- tween the bankrupt and debtor, this operation is fair, pro- vided the debtor is made safe in his payment ; but when it is extended further, and thereby affects the rights of stran- gers, it assumes a different character. The British courts will not permit the subjects of that kingdom to contravene their bankrupt system ; but unless in the two cases of Sole- OF PENNSYLVANIA. 375 inons v. Ross, and Jollet et al. v. Deponthieu ft aL, I know of no decisions which attribute this extra-territorial effect" to foreign laws and institutions. I fully agree, that we should pay sedulous attention to the comity of nations. Such courtesies tend to harmonize man- kind, promote public convenience, and enlarge the circle of human happiness in a social state. But our complaisance should be confined to reasonable and temperate limit?. At all events I would be fully satisfied, that the British courts sustain the doctrine contended for by the plaintiff in error, as to the effect of our own bankrupt system, before I give my assent thereto. Reciprocity in such instances is true equity as well as sound policy. That fact remains yet to be ascertained, and I avow my incredulity. Persons trading to England, and coming there occasionally, although not resi- dent in that kingdom, may be declared bankrupts by their laws. Cowp. 402., 1 Atk. 82. It is well known, that their practice has been conformable thereto. All intervening acts between the act of bankruptcy committed, and the assign- ment by the British commissioners, as to the personal pro- perty of the bankrupt, are avoided by the English statutes. Cook's Bank. Law 584. The effects of such a doctrine, ope- rating on such property in a foreign country, are too obvious to require any detail. Persons feel the difficulty of proving debts under a commission of bankruptcy among ourselves. How much must it be enhanced, when those proofs are to be made in Great Britain, at the distance of a thousand leagues from the scene of the transactions. In times of war between the two countries, dividends would not be paid in England. My feelings are repugnant to sending our citizens to foreign tribunals, to recover their debts, when full justice may be dispensed to them in their own country ; and I can discover no uniform imperious rule, which enjoins this hardship upon them. Upon the whole, on the fullest reflection, I do not see my way sufficiently clear, to subject our citizens to such embar- rassments and inconveniences, upon the principles of a sup- posed comity; and I am therefore of opinion, that the effects in the hands of the garnishee were liable to the attachment of Moreton, notwithstanding the bankruptcy of Topham, and that the judgment of the District Court be affirmed. 1814. MILNE v. MOUETOM. 376 CASES IN THE SUPREME COURT 1814. MILNE v. MORETON. BRACKENRIDGE J. Take the case to be that the contract 'was made here, that is, in this state, money advanced to Topham Or his agent here to be satisfied by the shipment of goods from England^ and the goods not shipped to satisfy according to the contract ; (fbr not being shipped to the whole amount of the sum advanced, the contract cannot be said to be wholly satisfied ; in that case, Topham became in- debted for the deficiency, and not having a domicil here, so that he could be arrested, his property became liable to an attachment to compel an appearance. But the property at- tached had ceased to be his before the attachment did attach, and it is admitted, and could not but be admitted by intel- ligent counsel, that a transfer for a valuable consideration by himself before the attachment, would exclude it. By operation of law, the consequence of an act of bankruptcy on his part, the property was transferred, and the attachment excluded. Topham a merchant in England was subject to the bankrupt law of England, and an act of bankruptcy on his part, had wrought a forfeiture of his effects for the use of his creditors. I take no distinction between the act of law transferring, and his own act. He committed the act of bankruptcy, and the law operating on this, transfers. It works an alienation. It his own act, what the law does for him, because he must be considered as having originally given an assent to this law which operates the tranfer, if it were necessary to recur to the subtlety of first principles in the case, to prove the act of law to be the same thing as a vo- luntary act on his part. But I lay out of the question all idea of voluntary or compulsory. He did the act to which the law annexes the consequence and effect of a transfer. The property attached was the property of Topham at the act of bankruptcy. It was his, with as complete an ownership as he would have had over it in England. There is no law here to secure that property from his own transfer, and for the use of his creditors here. It can therefore make no difference, whether he himself has transferred, or his own law for him. In contemplation of law it is his act. There is no lex loci bearing on the contract. The locus contractus has nothing to do with the case. The question respects the pro- perty, whether it remained his, or was transferred at the time of laying the attachment. If it were material, I would OF PENNSYLVANIA. 377 say the contract was made in England. It was not until the money advanced came to the agent of Topham in England,' that by his agent he could be considered as assenting and becoming a party to the contract. A contract requires par- ties, and the union of two or more minds ; and it could be only by accepting the money advanced, that he could be considered as assenting to the contract to ship goods. It was only on this act that the law could raise the implication of a promise. Whether a debt due from an individual of a home govern- ment, to a creditor in foreign parts, on a contract in foreign parts, is discharged by the certificate, where the creditor in, foreign parts does not come forward to prove his debt under the commission, it is not necessary in this case to say; for I am clear, that the interest attached in this case was transferred by the act of bankruptcy, and was no longer in him, so that it could be attached for his debt. The attach- ment itself, even supposing it before the act of bankruptcy, could not appropriate, and nothing could do it short of a judgment ; but the act of bankruptcy here was before evert the attachment laid, so that there can be no question. An interest arising on a contract here, unless there is some law with us to exclude it, follows the person as much as the ownership of a chattel. There is no difference between, a chose in action, and a chose in possession, in this respect. As to the locus contractus and lex loci, it must be immate- rial, except so far as affecting the consideration of the contract, the evidence or the enforcement of it, or the right of trans- ferring and carrying it out of the country. There being no- thing of this kind in the way here, it is transferred by the bankruptcy, and is the same thing as an interest arising on a contract in England. The domicil of the owner draws personal property with it, and it is the same thing as if in the home government. Trahit additque acervo. He drags it to his domicil. This is the principle upon which I put the case, and which is abundantly recognized by the law of England, and by the decision sof this Court. If there is any dictum of a judge of the courts of the United States, or even a decision, which would seem to break in upon the unity and simplicity of the system, I shall se VOL. VI. 3 B 1814. MILNE v. MORETON. 378 CASES IN THE SUPREME COURT 1814. more about it, before I shall be disposed to follow it. I can- j^ E not think it has been well considered by the judges if such -y. decision has been made. As to the inconsistencies of English MORETON. judges, I should pull an old house over my head, were I to give myself the trouble to look into them ; I confine myself therefore to reason and principle. Judgment affirmed. Monday, SCHWARTZ and another against The Insurance ^S general Company of North America. agent of ship and ^opTty'or'np 1118 action was brought by /. F. Schwartz and A. L board, the war- -L Schwartz who survived William M i Fadon, on a policy in a poii^o^the 7 of insurance for 20,000 dollars made the 19th January 1807, ship, is violated. Qn t ^ e s hj p ]\f ar g are t valued at 25,OOO dollars, at and from Batavia to Baltimore, with the usual liberty of touching and trading for refreshments, warranted American property, proof to be made in Baltimore only, premium 7 2 per cent. In the order for insurance, it was mentioned that the ship sailed under a sea letter or certificate, and that her cargo outwards consisted partly or in the -whole of articles contra- band of war. The cause was tried before the Chief Justice in November last, when the following facts were in evidence. The Margaret, belonging to the plaintiffs and William M^Fadon deceased, who were American citizens, sailed from Baltimore on her outward voyage in March 1804, laden principally with gunpowder and other contraband articles. She arrived at the Cape of Good Hope in May, where some of the articles not contraband were disposed of, and those which were contraband were carried in the ship to the Isle of France, where she arrived in July. She was there de- tained by an embargo for a considerable time, and at length sailed for Batavia the latter end of November, having dispos- ed of the remainder of her cargo, including the contraband, to the agent of the French government on a long credit, and having received an advance of 12,OOO dollars specie, from. Buchanan and Bickham on account of the debt due from the OF PENNSYLVANIA. 379 French government. The object of the voyage to Batavia, was 1814. to take in a cargo of coffee and sugar, with which a certain Det- *"^ mar Smith had promised to supply them, and to receive pay- e t a l. ment in bills on Baltimore. In "January 1805, they arrived at v. Batavia, where they found neither a cargo nor the probability I NS> COMPANY of getting one in a short time. William M^Fadon, one of the vr AMERICA owners of the ship, had gone out in her as master, with full powers to manage her concerns, and those of the cargo. Finding no likelihood of getting a cargo shortly, he made an arrangement with Christian Lewis Arnold, a Dutch mer- chant residing at Batavia, for a trading voyage to Tranque- bar, a Danish settlement on the coast of Coromandel. M'-Fa- don left the ship in charge of John Deshon the mate, with provisional orders that in case of his sickness, the command should devolve on Samuel Heard, who had originally been assistant supercargo ; and he authorized Heard by power of attorney, to manage the concerns of the cargo. He himself went from Batavia in February 1805 to the Isle of France, returned to New Tork in January 1806, and died before the commencement of this suit. Deshon was taken sick, and Heard came into the full management of ship and cargo. He made two voyages to Tranquebar, in partnership with Arnold, the first of which was prosperous, and the last not so. In August 1806, hav- ing returned to Batavia from his second voyage to Tran- quebar, Heard wrote to his owners under date of 30th August, that he expected his return cargo to Baltimore con- sisting of sugar and coffee, would amount to 50,OOO dollars. Afterwards under date of 9th November 1806, he wrote that the return cargo would probably amount to 73,OOO dollars, and requested insurance to be made accordingly. On the 19th December 1806, he wrote, that having taken a conside- rable part of the cargo on board, the ship sprung a leak, in consequence of which the cargo was unladen, and the ship repaired at a very heavy expence. Heard, in order to raise money, as he deposed, for these repairs, entered into a writ- ten agreement with Arnold, by virtue, as he therein stated, of a power of attorney from the plaintiffs, by which it was agreed that Arnold should advance money for the repairs of the ship, and also, if necessary, for payment of the plaintiffs' one half of that part of the cargo in which they and Arnold 380 CASES IN THE SUPREME COURT 1814. were equally concerned, viz. coffee, sugar, and pepper, to SCHWARTZ *^ e amount f 50,OOO dollars or thereabouts, for which et al. Heard was to give his bills on the plaintiffs with an advance v. of 28 per cent. The rest of the cargo belonged to Arnold; INS. Coat PAKY but j n or( jer to cover it from British capture, the whole N. AMERicA. car S was a PP arent ty to belong to the plaintiffs ; and to make the deception more complete, Heard gave his bills to Ar- nold for 30,OOO dollars, the amount of that part of the cargo which belonged to Arnold, under an express understanding that the bills were not to be paid. To make Arnold secure, the ship, cargo, and insurances, were hypothecated to him. In March 1807, the ship sailed fiom Batavia bound to Baltimore, having Arnold, his daughter, and six slaves on board as passengers. Arnold died on the passage. On the 8th July, the ship was captured by a British letter of marque, on suspicion of the cargo's being Dutch property. Heard at first declared that the whole property belonged to the plaintiffs, according to the ship's papers ; but the British captain having discovered some papers that led to the dis- covery of Arnold's partnership, and some of the crew hav- ing declared that they believed Arnold to be interested, Heard produced the written agreement with Arnold, and confessed the truth. The ship was carried to Trinidad; but their being no court of admiralty in that island, proceedings were institut- ed in the Court of Vice Admiralty of Barbadoes. Heard entered a claim for the ship and that part of the cargo which belonged to the plaintiffs, but both ship and cargo were con- demned as enemies' property or otherwise &c., with the exception of the property of Heard, and the adventures of the mariners. The reasons assigned by the judge for the condemnation were, that the homeward voyage was but a continuation of the outward, and was the result of an ad- venture commencing in contraband ; or if the continuity of the voyage had been broken by the trading from Batavia, then by that trading and the residence of M'-Fadon at Ba- tavia, he had acquired a Dutch character, and the vessel had become an adopted Dutch ship. Heard's adventure he restored, in consequence of what was called his candor in disclosing the true interests. The plaintiffs heard of the capture on the 30th of August OF PENNSYLVANIA; 381 1807, and on the next day directed their agents in Philadcl- 1814. phia to abandon, which was accordingly done. SCHWARTZ These are all the facts that were material ; and upon them et al. the Chief Justice explicitly charged the jury, that the war- v - ranty of American property had been violated, and the risk * j of the voyage increased, by the improper conduct of thej^. AMERICA. plaintiff's agent, and therefore that they were not entitled to recover. The jury found a verdict in conformity with the charge, and the cause came now before the Court, upon a motion by the plaintiffs for a new trial. J. . Ingersoll and Dallas for the plaintiffs. By the order of insurance the defendants knew that the Margaret carried contraband on the outward voyage ; and therefore all the consequences of that fact, were within their contemplation. They knew that as the cargo belonged to the same owners, the ship was liable to capture and condemnation. The JRin- gende Jacob (a), 2 Azuni 415, British Order of 24th June 1803, Chitty 318, 126. If therefore she was met by an ene- my, the event which actually occurred must have been foreseen, and it was encountered by the defendants for the premium which they received. The condemnation then having been on the very ground of contraband, and that ground having been disclosed and the risk assumed by the underwriters, it is merely a refinement to attempt to protect them from liability by setting up a breach of the warranty of neutrality. But in reality there has been no such breach. The conduct of the agent did not forfeit any of the neutral rights of the ship, nor expose the underwriter to any incon- venience or risk that he did not undertake to bear. A neu- tral ship has an unquestionable right to carry enemy pro- perty. Vattel book 3. ch. 7. s. 115. Vrozu Henrica (). If met upon the ocean, the captor has an equal right to take her in. If she is rightfully taken in, she is not entitled to costs OP expenses in consequence of the detention. Chitty 318., 4 Inst. 22., Bynk. Quest. Jus. Pub. book 1. ch. 14. These are legal results from the fact of carrying enemy's property; and there are no other inconveniences from covering it, since it is perfectly well settled, that the ship is not forfeited be- cause the agent of the owner has used false papers to skrecn () 1 Rob, 74. (6) 4 Rob. 282. 382 CASES IN THE SUPREME COURT 1814. the cargo. The extent of the forfeiture is the freight, to SCHWARTZ w ^ c ^ the underwriters would not be entitled, if it were etal. allowed. Chitty 301, 303, 328. The covering is beneficial v. to the underwriter on ship, because without involving the ? IPANY property in a new peril, it protects it from one that is ac- N. AMERicA. tua ^y impending. The fraud in its consequences is confined to the cargo. In the present case there was no animadver- sion by the judge of vice admiralty upon the false papers; he does not notice it as an ingredient in the cause ; on the contrary he restored the adventure of the captain, in conse- quence of the fairness of his conduct. No instance can be found in which the ship has been brought into jeopardy, ex- cept for illegality in her own conduct, or fraud in her own documents; and the sole object of the warranty was the vessel, her documents and conduct. Hopkinson and Levy for the defendants. This cause was formerly tried before Judge Washington, whose opinion being decidedly against the plaintiffs, they suffered a non suit when the jury were at the bar. The plaintiffs' argu- ment is partly founded upon a fallacy, partly on a misappre- hension of the law. It is fallacious to put the case upon the communication of the contraband ; because if the underwri- ters Icnew or supposed the ship might be condemned for that cause, which from the amount of premium it is clear they did not, it would not follow that they were to bear all or any other risks, which the misconduct of the assured might lead to. Nor is the cause of the condemnation of the slightest moment, though if it be material as to part, it is so as to the whole ; and the judge himself did not say whether it was contraband or Dutch adoption, that had the most in- fluence on his sentence. The latter was certainly justified by the facts, and there is no pretence for saying they were disclosed to us. The adoption alone was a breach of neu- trality. The Vigilantia (a), 1 Chitty 56. The true objections to the recovery are, 1. The breach of the warranty by covering enemies' property ; 2. The in- crease of the risk by the same cause. 1. The warranty of neutrality stipulates for neutral pro- () 1 Rob. 10. OF PENNSYLVANIA. 383 perty, neutral conduct, and neutral protection. To carry 1814. enemies property is lawful; to skreen it by false papers, Sc HWARTZ and false declarations, is unlawful. It is taking part with et al. one enemy against the other, contrary to the obligations of v - neutrality. It is prostituting the mantle of a friend to dis- INS * Co * IPANr guise and shelter an enemy. To state it, is sufficient to^ AMERICA. shew that it is unneutral conduct. The authorities are full to the point. Pratt v. Phcenix Ins. Co. (a), Blag v. Nero York Ins. Co. (), Calbraith v. Grade (c), Rich v. Parker ( consisted partly or in whole of articles contraband of war. The cause was tried before me, and the jury agreeably to my charge gave a verdict for the defendants. There was a great deal of evidence, and many points of law were discus- sed ; but the charge and the facts necessary to explain it may be reduced to a narrow compass. [The Chief Justice then stated as much of the case as was material.] On these facts, I directed the jury to find for the defen- dants, being of opinion, that the warranty of " American (a) 2 Sinn. 324. (c) 1 Marsh. 40C. (,?) 2 Campb. 223. (4) 1 Marth. 406. (d) Id. 409. 384 CASES IN THE SUPREME COURT 1814. "property" was violated, and the risk of the voyage in- "~^ IT" creased by the improper conduct of the plaintiffs' agent. et al. ^7 a warranty of American property* it is understood, v. not only that the ship belonged to an American citizen at INS. COMPANY tne t i me o f tne insurance, but should continue so during N AMERICA l ^ e vo y a S e an( ^ tnat l ^ e captain and agents of the owners should conduct themselves conformably to the laws to which neutrals are subject. A neutral may lawfully carry the goods of one belligerent, subject to the right of capture by the other. The captor takes the goods paying freight to the carrier if he has acted fairly. But where the neutral, not con- tent with carrying, undertakes to cover the cargo by false papers and false oaths, he violates the duties of neutrality as well as morality ; he takes part in the war by favouring one belligerent, and attempting to defraud the other. In answer to this, it is said that the underwriters have no reason to complain, because having been informed, that part of the outward cargo consisted of contraband articles, they knew that the ship was liable to condemnation. If they did know that she was subject to condemnation, it is strange that they should insure her at a premium of seven and an half per cent. It is more probable, that considering the length of time between the commencement of the outward voyage and the underwriting of the policy, it was supposed that the taint of contraband was purged. But be that as it may, the question is not whether the underwriters were like to be injured by the breach of the warranty, but whether the warranty was broken ; for if it be, the policy is vacated, though the ship were lost by a peril unconnected with the warranty. The plaintiffs rely much on the distinction between ship and cargo. The fraud say they, was confined to the cargo, and therefore could not be visited on the ship. This is so far true, that according to modern usage, the ship is not condemned for the fault of the cargo, except in the case of articles contraband of war, which condemn the ship, if they belong to the owner of the ship. But although the ship be not condemned for the carriage of goods of an enemy, yet when the captain conducts himself fraudulently, heavy expenses may be incurred. The owner of the ship is subject to those expenses ; he will be allowed no costs, and in gross cases, he will even be made to pay costs. Now OF PENNSYLVANIA. 385 if the warranty is not broken, he has a right to recover those 1814. costs and expenses of the insurer. Besides, it is probable g CHWARTZ that the ship will be subject to more delay, when these e t a |. fraudulent practices are discovered by the captor, than if all v. was fair. When it is found that the cargo is covered, S us-l NSi COMPANY picions will arise as to the ship ; hence a more strict scrutiny ^ AMERICA. and rigorous prosecution may be expected. So that in fact, the risk of the insurer is increased, though the ship be not subject to confiscation. My sentiments on this subject are strengthened by the opinion of the Circuit Court of the United States for this district. The plaintiffs first commenced their action there, and suffered a non pros, at bar, after hearing the charge of the Court against them. My opinion is against a new trial. YEATES J. The present motion for a new trial is founded on a supposed misdirection of the Court upon the trial to the jury, that the insured had been guilty of a breach of warranty expressed in the policy, and therefore not entitled to recover in this action. All the circumstances of the case from the period of the ship Margaret's sailing from Balti- more to the Cape of Good Hope, in March 1804, to the time of instituting the suit, have been fairly and minutely de- tailed by the Chief Justice in his charge, which I will not again repeat. I shall content myself with observing, that the order to make insurance on the return voyage from Batavia to Baltimore, dated 19th January 1807, stated, " that the " ship's cargo outwards consisted partly, or in whole of " articles contraband of war," and that the policy on the ship, pursuant to the order, contained a warranty that " she " was American property, of which proof to be made in " Baltimore and not elsewhere." When the plaintiffs institute their cause in this Court, and the inquiry into the observance of the warranty becomes indispensably necessary, the insured must be supposed to admit that the proof must be had here. How otherwise could the suit be tried on its merits ? That the property in the vessel was in truth and in fact American, in the common acceptation of the terms, there can be little room to question ; and if the case depended on that construction of the war- ranty, we cannot doubt what ought to be the result. But VOL. VI. 3 C 386 CASES IN THE SUPREME COURT 1814. the legal extent of this warranty, and the fair commercial SCHWARTZ im P rt f fch* 5 words used, must govern our decision in this et al. instance. American here means neutral property, in contra- distinc- INS. COMPANY t j on tQ b e mg erent . Now it is fully settled, that the meaning N. AMBRICA.^ suc h a warranty is not only that the subject insured shall be the property of neutral persons, but that it shall be neu- tral for all the purposes of being protected. The vessel must be navigated according to the laws of nations, and be furnished with every document proper to evince such neu- tral character. No anti-neutral papers on board should com- promit her asserted neutrality. The agents of the insured as well as the insured themselves, should do nothing in violation of the rules laid down by civilized nations for the conduct of neutrals. It cannot be said, that a concerted sys- tem of deception, studiously calculated to defeat the known rights of one of the belligerent nations, and false papers covering enemies' property, sealed with perjuries, can be deemed conformable to the correct conduct of neutrals. It has however been contended by the plaintiffs' counsel, that the acts of captain Heard, however exceptionable as to the cargo, could not increase the risk of the underwri- ters on the ship, inasmuch as thev were fully informed that she sailed from Baltimore on her outward voyage with con- traband goods on board, which was a sufficient ground of condemnation both of shi p and cargo, whatever change the ori- inal goods underwent in the course of her different voyages, under the modern doctrine of continuity. I answer that it is not material whether the breach of the warranty conduced to the loss, or not. The warranty is a condition precedent, which not being complied with, the contract of indemnity- is thereby disolved ; and the correct conduct of neutrals being precisely ascertained by many judicial decisions, it is equivalent to that line of conduct being particularly express- ed in the policy. In the case of the Phwnix Insurance Com- pony v. Pratt fc? Clarkson, 2 Btnney 324, it was held by this Court unanimously, that an attempt to mask goods under a neutral cover, was a breach of neutrality, and that the owners of a ship were responsible for the conduct of their captain who must be considered as their agent. Admitting that the carrying goods contraband of war into an enemy's OF PENNSYLVANIA. 387 port, would condemn the ship and cargo, and that the cover- 1814. ing of belligerent property by the neutral vessel under false SCHWARTZ papers, would only condemn the property of the enemy, et al. when it can be separated from what is bona jide neutral, v ' what follows from hence ? Shall the insured or his agents Q , multiply hazards on the underwriters, which they never N. AMERICA. agreed to run ? Shall the latter be subjected to other risks than those expressed in their contract of insurance, although of an inferior grade ? The taint of contraband had infected the outward cargo so early as March 1804 j but there would be no reasonable grounds to suspect the existence of that fact, when the Margaret was taken by the Dominica Packet on the 8th of July 1807. Unless some suspicious circum- stances occurred, which tended to awaken the recollection of the first illicit voyage, it might have passed into oblivion so far as respected the captors. This appears not only pro- bable to me, but to be the very truth of the case. The Mar- garet arrived at Port d^Espagne, in the island of Trinidad, on the 19th of July 1807. Within three days afterwards it appears by the record of the Court of Vice Admiralty, that certain depositions were taken by Archibald Gloster Esq. commissioner of the Prize Court of Barbadoes resident in Trinidad. Upon the 22d of July, James Co-will, commander of the Dominica Packet, made oath, that he boarded the Margaret, and detained her on suspicion of the cargo on board being Dutch property, and belonging to the enemies of the United Kingdom of Great Britain and Ireland. Andrew Arenstep chief mate of the Margaret, on the 24th of the same July, in answer to the third interrogatory, made oath that the Margaret was captured on suspicion of being Dutch property ; and captain Samuel Heard on the day following made the like answer to the same interrogatory, and to the thirteenth interrogatory he said, that the bills of lading for the cargo then on board, in asserting it to be American pro- perty, were not true, inasmuch as part of it belonged to Christian Louis Arnold. In his deposition taken in the action in the Circuit Court on the 1st of November 1808, and read by consent in this cause, captain Heard swore, that after the capture and detention of his ship, information was given to the British by the crew and people on board, that they had carried out contraband, and that they believed the ship and 388 CASES IN THE SUPREME COURT 1814. cargo to belong to Arnold. These particulars satisfy my SCHWARTZ mm d, tnat unless the vessel and cargo had been suspected et al. in the first instance to have been enemy's property, she v. would not have been sent in for adjudication, and therefore INS. COMPANY ^ mas k ec i p ro p er ty materially tended to the injury of the N. AMERicA. underwriters - I desire to be understood as concurring throughout in the charge of the Chief Justice. I adopt his expressions ; " although it be granted that it is not usual to condemn a " ship, even where the cargo has been covered by fraudu- " lent papers, yet the fraud is punished by withholding " freight and costs, and in gross cases by payment of costs. " If costs are paid or even withheld, the risk is plainly in- " creased, because if the insurance stands good, the assurer " must indemnify the assured against such costs." Indepen- dently however of the increase of risk, I have already said, that if the defendants had either by themselves or their agents, been guilty of a breach of their warranty of neu- trality, they are not entitled to recover. I am of opinion that the motion for a new trial be denied, and the judgment be entered for the defendants on the verdict. BRACKENRIDGE J. It seems to have been made out by the counsel for the plaintiff, so far as I can see without further examination, that hypothecation does not affect the neutral character of a ship; that it would not be a breach of a warranty of neutrality ; and that the carrying belligerent property does not affect the neutral character of the ship. If so, that could not be a breach of the warranty of neutrality. It seems also to have been made out, that covering belligerent property can affect the cargo only, not the ship. But the discovering the covering might lead to a stricter examination, and produce a discovery of something else, that might be a cause of the condemnation of the ship. But that cause to which such examination might lead was known to the assured, and the risk of it was taken on them- selves. This was the having carried contraband of war on a royage out, and before the voyage insured had commenced. This was the cause of the condemnation of the ship in ques- tion. The question then will be, the insurers having taken 'OF PENNSYLVANIA. 389 the risk of the carrying out contraband of war, it being 1814. known to them, and therefore to be considered as excepted SCHWARTZ out of the insurance, was the voyage insured to be consi- e t al. dered stript of this circumstance, and to be as if it had not v. existed? I cannot sav that I can otherwise construe it. If SO ,I NS< COMPANT the carrying belligerent property or covering it, even though j^ it did increase the risk of discovering this taint of the ves- sel, yet it did not increase the stain for which the vessel was condemned. A great deal has been said, and much may be justly argued on the subject. But the inclination of my mind on hearing the argument of counsel, and which I thought very able on both sides, was for the plaintiff. I am shaken doubtless, by the opinion of others against me ; but I am not prepared to concur in an opinion for the defendant. New trial refused. WlLKINS against BURR. Philadelphia, Monday, July 28. r T" 1 HE defendant obtained a rule upon the plaintiff to shew If the plaintiff J- cause why all proceedings iu this action should not be Un^i^conski""- stayed, and an exoneretur entered on the bail piece. I?"? 11 tha * 1 t . he ll<> fendant will not file a bill against The rule was granted upon the following facts: The de^lhe'dX^t fendant was held to bail in this suit in March 1808. Some- performs his en- . gfigement, will time after the commencement of the suit, his attorney wrote stay proceedings a letter to Mr. Clay of Kentucky, where the plaintiff lived, o^Lr anVx^ere. requesting him to file a bill of equity against the plaintiff/" r of the bail- to obtain an injunction against the further prosecution of the suit, or if this should not be granted, to get his answer to be read on the trial. After several interviews between Mr. Clay and the plaintiff, it was agreed that the bill should not be filed, and that this suit should be discontinued. Accord- ingly the plaintiff on the 17th June 1809, wrote and deli- vered to Mr. Clay, a letter directed to Joseph Gratz his agent in Philadelphia, directing him " on the receipt of this, " to dismiss the suit ordered against Aaron Burr on a pro- tested bill of exchange." The letter was forwarded to the defendant's attorney, who shewed it to Gratz. He said at 390 CASES IN THE SUPREME COURT 1814. first that the order should be complied with ; bat after a few WILKINS day's delay, declared that it would not be discontinued with- v. out further orders irom the plaintiff, to whom he had written. lit UK. He atterwards informed the attorney that he had received a letter forbidding the discontinuance ; and finally filed his own affidavit, that when the bill was placed in his hands to bring suit, it was agreed by them, that any money recover- ed should go to pay a debt due by John &f Charles Wilkins to Simon Gratz & Co., of which house Joseph, Gratz was a member. Hopkinson shewed cause against the rule. He said that the rule was without precedent. That in this way the Court might be called upon to try every cause. If the defendant had any merits, he might plead them, and submit them to a jury. Had the writing been a release, it must have taken that course ; and certainly the letter to Gratz, was not more. The order to strike off was revocable in its nature. The consideration was nothing. The defendant might at any time compel an answer; and the plaintiff offered Mr. Clay and is now ready, to answer any interrogatories of the defendant on oath. Besides here is the interest of a third person, which, to resist this rule, is sufficiently proved by his own affidavit. Biddle and Lewis for the defendant. The affidavit of Mr. Gratz is not evidence on the hearing of the rule. It must be considered as it it did not exist. The only question then is, whether this Court will enforce a fair agreement to discon- tinue, made upon a sufficient consideration, and in part car- ried into effect by delivery of the order to the defendant's attorney. The order was irrevocable ; Odes v. Woodward (a), Manser v. Shelly (). 1 Tidd 495., 1 Cromp. 318., Latch. 8 ; and the power of the Court is unquestionable. Baring v. Shippen (c), Bonafous v. Rybot (d). It was material to the bail who had relied on the promise of the plaintiff. TILGHMAN C. J. In considering this case the Court can take no notice of Mr. Gratz or of the house of Simon Gratz &? Co. ; because the action was not brought for their use, nor does it appear by legal evidence that they have any interest (a) 2 Ld. Ray. 850. (c) 2 Sinn. 167. (*) Sir T. Bay. 69. 4 (J) 3 Burr. 1370. OF PENNSYLVANIA. 391 in it. The affidavit of Joseph Gratz might be received by the court as the ground of a motion ; but when the motion' came to be heard on its merits, no regard could be paid to it, because he was an incompetent witness. Taking the mat- ter as it stands then between the parties to the action, the defendant only asks the performance of the plaintiff's agreement, founded on a good consideration, and entered into with deliberation. The defendant has performed his part by abstaining from filing a bill in equity, and it is im- possible for us to say that he may not be injured if this ac- tion is suffered to proceed. When the plaintiff wrote the order for discontinuing the suit and delivered it to Mr. Clay the attorney for the defendant, it became irrevocable. There is no suggestion of any kind of deception, imposition or improper conduct in obtaining the order. The case falls then within the reason of that principle, by which courts compel the specific execution of agreements concerning suits de- pending before them. I am of opinion therefore, that the rule should be made absolute, annexing one condition which justice requires. The cause has been depending a consider- able time in this court, and it is possible that if the plaintiff brings a new action he may be barred by the statute of limi- tations. The defendant must therefore engage, that if the plaintiff discontinues this suit, and brings another, the statute of limitations shall not be pleaded. YEATES J. and BRACKENRIDGE J. concurred. Rule absolute. 1814. WlLKIHS V. BURR. CLARK and another against ISRAEL. Philadelphia Monday, July .25. THIS was a scire facias to December 1812, to revive a A discharge un- judgment entered on the 23d April 1811, for fourteen ftftSSESfc hundred and seventy-two dollars thirteen cents, with i n . 1812, does not dis- /, turb the lien of a terest from the 1st May 1810. The defendant pleaded pay- judgment, ment, a set off, and a discharge under the insolvent law of tne Sns 13th March 1812. main after his assignment and discharge, subject as before to proceedings by mortgagees and judgment creditors. If the defendant is in possession, with the permission uf his assignees, it is not necessary to serve a acire facias post annum et diem upon his assignees. 392 CASES IN THE SUPREME COURT 1814. CLARK etal. v. ISRAEL. Upon the trial before Teates J. at a Nisi Prius in February "last, the defendant produced a discharge signed by the commissioners on the 15th May 1812, and duly filed in the prothonotary's office : and his counsel contended that the certificate operated as a complete discharge, not only as to his person, and property subsequently acquired, but also as to the lien which the plaintiff had on the real estate of the defendant, held by him at the time of the entry of the ori- ginal judgment. His honour reserved the point, and a ver- dict was by consent entered for the plaintiff. In addition to the point reserved, it was now argued that judgment could not be entered upon the verdict, 1. Because the real estate of the insolvent had passed to his assignees, and they alone had power to sell. 2. Because the assignees should have been made parties to the scire facias, as terre- tenants. 3. Because a judgment would make the defendant, and his subsequently acquired property, liable to execution. Milnor for the plaintiff. Phillips and y. R. Ingersoll for the defendants. TILGHMAN C. J. having been prevented by indisposition from hearing the argument, gave no opinion. YEATES J. It has been contended, that by the third sec- tion of the insolvent act in question, 5 Sm. Laws 322., the certificate of conformity " shall be construed to discharge " such insolvent from all debts and demands due from him, " or for which he was liable, at the date of such certificate, " or contracted or originating before that time, though pay- *' able or liable to be exacted afterwards &c.;" and that the debt, which is the substance, being discharged by operation of law, the judgment grounded thereon, which is the sha- dow, must be extinguished also. I profess to give no opinion on the constitutionality of this law, a subject which has lately much agitated the pub- lic mind. The counsel on both sides have argued before us, on the ground that it was constitutional. The question is, what is its meaning ? My mind would require the most clear and unequivocal expressions, before it could be satisfied that the legislature OF PENNSYLVANIA. 393 meant in any instance to take away the vested rights of in- 1814. dividuals, secured to them by law. This is seen in the bank- CLARK rupt laws, wherein it is declared, that a judgment without et al. an execution executed, shall give no preference in the dis- v ' tribution of a bankrupt's effects. The people are bound to SRAEL - know the law, and may guard themselves accordingly. Tak- ing the whole of this third section together, the intention of the legislature appears to be, to shelter the person and pro- perty of the insolvent, acquired after his discharge, from the demands of his creditors. " No person so discharged shall be " liable to be arrested or imprisoned for any debt or demand ** due from him, or to which he was liable, at the time of " the said discharge &c." In the eleventh section it is de- clared, " that the assignees appointed by virtue of this act, " shall have power and authority to redeem mortgages and " conditional contracts, satisfy all judgments &c." Why this classification, unless it was meant to put mortgages, and judgments binding lands, on the same footing, and to draw a line of distinction between them and other debts due from the insolvent. In fact this construction was admitted by the counsel for the defendant. Moliere's Lessee v. Noe, 4 Dall. 450., was cited, that a purchaser under a sale of land by order of the Orphan's Court, takes it discharged from the lien of judgments. This decision was had under the twenty-first section of the act of 19th April 1794, that " no lands sold under such orders " should be liable in the hands of the purchaserybr the debts " of the intestate" I heard the argument in that case, and though I was confined to my chamber when the opinion of the Court was delivered, fully concurred therein. I agree, that no inconvenience will result if the Orphan's Court and the administrator do their duty. It will be seen in that case, that this Court clearly held, that the proceeds of sale must be applied to the payment in the first place of the liens which existed in the life of the intestate, according to their respective priority. If the sale in that instance had been made by the sheriff, prior to the sale by the administrator, there cannot be the smallest doubt, but the purchaser under the judgment and execution would have had a good title. It has however been urged, that no judgment should be rendered on this verdict, because under the second section VOL. VI. 3 D CASES IN THE SUPREME COURT 1814. CLARK etal. v. ISRAEL. of the law, all the estate real, personal and mixed of the in- solvent, is vested in the assignees ; and under the eleventh section of the act, they have power to execute deeds for real estate, and to satisfy all judgments ; and hence it is con- cluded that the assignees only can convey the title to a pur- chaser. I cannot conceive, that the assignees possess the ex- clusive right of selling the lands of such insolvents bound by judgments. Should they sell the lands for the best price that could be procured, and fairly distribute the money arising therefrom according to law, it would certainly do no injury to the judgment creditors; but it will not be forgot, that although administrators give security, this is not re- quired of the assignees, and losses may thereby happen. Besides, shall the judgment creditors wait with the means of enforcing payment in their own hands, until it shall please the assignees to sell the real estate ? Why have they in the present instance deferred this sale above two years since the final discharge, with the complete power of selling ? It appears to me that the lands of the insolvent, after his final discharge, may be proceeded against by mortgagees and judgment creditors, with as much effect as if he had never taken the benefit of this law. It has likewise been said that the assignees should have been made parties to this scire facias as terre-tenants. To this it has been answered, that the defendant continues in the possession of the house intended to be levied on, through the permission of the curators and assignees under the pro- visions of the act, and that he only can be deemed the terre-tenant* This question may, if it be thought proper, be agitated at a future day ; at present we will not anticipate the decision. We have nothing to do with it at present. Let the purchaser look to his own security and title. In the last place, it has been objected that the entry of a general judgment on the verdict, may subject the defendant's future acquired property and person to the hazard of an exe- cution ; and ha. we have no power to enter a special judg- ment* Ordinary remedies would be misapplied in extraor- dinary cases. I know of no such law as the one in question in the English statute book, and therefore no precedent of a judgment is to be sought for in that quarter, which would suit the merits of tnis suit* I know of but cue mode which OF PENNSYLVANIA. 395 can protect the individual rights of the parties, and effec- 1814. tuate the intentions of the legislature, which is, the entry of CLARK a judgment on the verdict for the plaintiff, of the lands bound et al. by the original judgment on the 23d of April 1811; and such -' entry in my opinion should be made in this action. BRACKENRIDGE J. concurred. Judgment accordingly. Ir WITMAN against NORTON. July 30. CASE. " James Button on the 26th of November 1812, if a testator , j MI blends his real , j MI "duly made and published his testament and will j md personal es- " (prout the will;) and on the 29th of December duly made *> ^ r r a e l si _ " and executed a codicil thereto. (Prout codicil.) He died due, the legacies " on the - day of January 1813, and on the l'3th of "he lands^ ** January 1813, the said will and codicil were duly proved. " At the time of making the said will and codicil, the tes- " tator was possessed of personal estate, and seized of real " estate, but the personal estate was insufficient for the pay- " ment of his debts, and of the legacies he bequeathed ; and " at the time of his death, the personal estate continued to " be, and now is, insufficient for the payment of his debts " and legacies. The question is, whether the real estate is " chargeable with the legacies bequeathed to the plaintiff. '* If the Court shall be of opinion that it is, then judgment " to be entered for the plaintiff generally : if not, thenjudg- ** ment to be entered in his favour for such proportion of " the legacies, as the personal estate is sufficient to pay." The testator by his will and codicil gave to the plaintiff two legacies of one hundred pounds each. He gave pecu- niary legacies to other persons, without naming any funds from which they should be paid ; and particularly two hun- dred pounds to trustees, as a fund to repair and rebuild the wall of Coates's burial ground in the Northern Liberties. He also made a very special provision for erecting a tomb- stone over the remains of his parents, some others of his family and of himself, and directed his executors " to pay 396 CASES IN THE SUPREME COURT 1814. WlTMAN V. NORTON. 4 u out of his estate all the costs and charges" of procuring and erecting it. The concluding devise was as follows : "As " for and concerning all the rest, residue, and remainder of " my estate real and personal, whatsoever aralrwheresoever, " not herein otherwise disposed of, I do give, devise, and " bequeath the same, and every part and parcel thereof, " unto the corporation by the name of the Guardians of the *' Poor of the City of Philadelphia, the district of South- " -wark % and township of the Northern Liberties? in trust, &c. There was no particular devise of real estate, either in the will or codicil. The case was submitted without argument by Sergeant for the plaintiff, and by M^Kean and S. Ewing for the de- fendant. TILGHMAN C. J. The question in this case is, whether the pecuniary legacies bequeathed by the will of James Dutton are a charge on his real estate ? After giving seve- ral legacies, he devises as follows. " As for and concerning " all the rest, residue, and remainder of my estate, real and " personal, whatsoever and wheresoever, not herein before u otherwise disposed of, I do give, devise, and bequeath " the same and every part and parcel thereof unto the cor- *' poration by the name of the Guardians of the Poor of the ** City of Philadelphia, &c." I can conceive nothing more plain than the testator's intention to give only what re- mained after payment of debts and legacies. The devise of the residue has not the semblance of a specific devise, but shews an intent to give every thing real and personal which remained. Some of the legacies were of so peculiar a nature, (to be appropriated to the purpose of keeping the wall of a grave yard in repair, and erecting tomb-stones over the bodies of testator's ancestors) that it would be monstrous to think of defeating them by the subsequent devise of the residue. But there needed not that circum- stance. The intent would have been sufficiently plain, if there had been no other than the usual pecuniary legacies to friends. Two cases have been decided in this court full as strong as the present, and I think rather stronger. Nidds v. Postlethwaite, 2 Dall. 131 ; and Hassenclever v. Tucker, afterwards affirmed in the High Court of Errors and Ap- OF PENNSYLVANIA. 397 peals. 2 Binney, 525. My opinion is that the legacies are a 1814. charge on the land ; and therefore judgment should be en- WITH AN tered for the plaintiff. -v. NORTON. YEATES J. and BRACKENRIDGE J. concurred. Judgment for plaintiff. The Commonwealth ex. re. FREYTAG against The Commissioners of Philadelphia County. Saturday, July 30. TN this case a rule was granted upon the defendants, to A justice of the shew cause why a mandamus should not issue, command- asa^iuie^for" ' ing them to pay the bill of Michael Freytag esquire a j us- tlie Common- _ o r / . . wealth in criminal tice of the peace, for the costs of his attendance in sundry cases, isentiti.-d cases, in which he was a witness for the Commonwealth except (IJonl' against persons indicted and tried in several courts. da y lun "K e c ^ court, when he a bound to attend Ingersoll for the relator. rf r h tarrdnghu recognizances. Browne for the defendants. TILGHMAN C. J. delivered judgment. By the act 23d September 1791, the county pays the costs on all bills returned ignoramus by the grand jury, and also in all cases where any person is convicted of an offence punished capitally, or by imprisonment at hard labour, if the defendant had not property sufficient to discharge the same. By the act 20th March 1797, the county pays costs on all bills of indictment found by the grand jury, where the defendant is acquitted by the petty jury. The commis- sioners have doubts whether Mr. Freytag is entitled to costs as a witness, being as they supposed obliged to attend the court as a justice. It is his duty to attend the court for the purpose of returning his recognizances &c., but no fur- ther. This may be done in one day ; only one day therefore should be deducted from his costs as a witness. It is not necessary that he should have been subpoenaed. If he was under recognizance, or even requested by the attorney general or his deputy to attend as a witness, it is sufficient. 398 CASES IN THE SUPREME COURT The county is not to pay costs in case of conviction, if the COMMON- defendant has property. It is the duty of the officers to make WEALTH enquiry for property before they charge the county. But v - if they know of no property, they may resort to the county. PHILADEL- * l * s ^ e ^ utv ^ t " ie comm i ssioners a ko to make enquiry PHIA COUNTY. f r property, and if they find reasonable cause for supposing that there is property, the officers on being informed of this should in the first place endeavour to procure payment from this property. With regard to Mr. Freytag's present de- mand, no cause is shewn to the Court which can induce them to think that any of the convicts have property. We are therefore of opinion, that the rule for the mandamus should be made absolute. Rule absolute. BRINGHURST and wife against CUTHBERT and Philadelphia, Saturday, another. July 30. devise^ to trus- r T^HIS was a case stated for the opinion of the Court, in tees the dividends A the following terms : and income ot 8000 dollars old six per cent, stock p eter Knight, late of the Northern Liberties of the city of of the United . States for the Philadelphia merchant deceased, by his last will and testa- hi s P nL a ce, U an e d 0f mem dated the 18th, day of September 1798, gave and upon the trust bequeathed to Thomas Cuthbert and Anthony Cuthbert the and confidence ... i that they would defendants above named, " the dividends and income of detTdsand'tncome," eight thousand dollars six per cent, stock, debt of the and apply the United States in the funds of the United States, to them same for trie sup- port of the said " the said Thomas and Anthony their heirs executors and 'maintenance and" administrators, for the separate use of his the said Peter education of her u KniMs niece Elizabeth Brewster wife of William Brew* children. He also gave tothe " ster y and upon the express trust and confidence that they same trustees the ... . , 111 i -jj'-ji j principal of the "the said trustees should receive the said dividends and said 8000 dollars mcome an d apply the same for the support of the said as the same rr J should be paid off * Elizabeth, and the maintenance and education of her chtl- the government/ u dren" And he also gave and bequeathed to the said trus- t be held in trust ts fair executors and administrators, " the sum of six and applied as he had before direct-" hundred dollars money on the same trust and to the same ed with regard to.. i i i i rt_ -j-t.. the dividends and uses to which he had given the income oi the said eignt income thereof. Held, that the trust did not cease upon the death of the niece and the arrival of her children at lawful age; but that the trustees were to pay to the children the entire dividends of the stock, in- cluding the annual instalment of principal, until the whole should be redeemed by the United Stater. OF PENNSYLVANIA. < 399 u thousand dollars, and in aid of and by way of addition to 1814. * ' the said income." He also gave to the said trustees 4t the B RIN GHURST "principal of the said eight thousand dollars as the same et ux. " should be paid off and discharged by the government of the v ' " United States, to be held in trust and applied as he had CUTHBERT " before directed with regard to the dividends and income "thereof." [Prout the said will.] The executors of the said will assented to the said legacy to the said Thomas and Anthony Cuthbert as trustees aforesaid. The said eight thousand dollars six per cent, stock was duly transferred to them on the books of the treasury of the United States, and the said sum of six hundred dollars duly paid to them. During the life time of the said Elizabeth Brewster, the dividends and income of the same were regularly paid to her. On the 16th day of September 1808, the said Elizabeth Brewster died, leaving two children, to wit, Margaret the wife of Robert Bringhurst the plaintiff, which said Marga- ret became of full age on the 22d day of March 1807, and Peter K. Brewster who is yet a minor. After the death of the said Elizabeth, the said trustees paid the interest on the stock and monies so bequeathed for two years, one half to the said Robert Bringhurst the plaintiff in right of his said wife Margaret, and one half to William West guardian of the said Peter K. Brewster. Since that time they have re- fused to pay the said interest dividends and income or any part thereof to the said Robert in right of his said wife or otherwise, and have also refused to pay the principal monies or any part thereof to the said Robert or his said wife. The said trustees have since the death of the said Peter Knight sold the said eight thousand dollars six per cent, stock of the United States, and have now in their hands the proceeds principal and interest of the said legacy, the sum of 715O dollars 69 cents. The questions submitted to the Court are, 1. Is the said Robert Bringhurst in right of his said wife entitled to any and what part of the principal monies and interest now in the hands of the said Thomas and Anthony Cuthbert, the proceeds of the said legacy ? 2. If the Court should be of opinion that the said Robert is not entitled to any part of the principal monies aforesaid, 400 CASES IN THE. SUPREME COURT 1814. is he entitled to be paid any and what part of the interest BRINGHURST thereon ? et ux. V. CUTHBERT etal. Judgment shall be entered conformably to the opinion of the court. The material part of the testator's will being recited in the case, it is only necessary to state further, that after the bequest above mentioned, he gave a great many pecuniary legacies to different persons ; and then devised " all the rest " of his estate real personal or mixed, after his debts, funeral u expenses, and the preceding legacies were paid," to five persons, one fifth each. Hare for the plaintiffs. 1. One half the principle is paya- ble to the plaintiffs. A devise of the dividends of stock, is the same as a devise of the stock ; and where there is a gift to trustees to pay the produce to A, without words li- miting the duration of the trust, it is a gift of the principal. 1 Fonbl. 169. 174., 1 Bro. Ch. Rep. 532. The use was not entirely in Mrs. Brewster during her life, because it was intended that the trustees should have the management of the fund for the benefit of the children. It was a trust, not a use executed. 7 Bac. Ab. 124, Uses and Trusts, H. 3. But since her death, and the arrival of Mrs. Bringhurst at lawful age, the use is executed in her as to a moiety, parti- cularly as the fund has been converted into money. The testator intended the principal to pass, and not under any circumstances to fall into the residue ; because the residue is bequeathed after payment of the legacies. 2. But at all events a moiety of the interest is payable. Although education may be limited to minority, mainte- nance is not. The whole beneficial interest was clearly in- tended for the children ; and the bequest was in effect an annuity, for such is the stock. J. R. Ingersoll for the defendants. The testator intended that the legacy should remain a trust so long as the stock was unredeemed, because he gives the principal to the trustees as it should be paid off and discharged. They are therefore to have the management of the fund for that time. Where dividends of stock are given directly without the OF PENNSYLVANIA; 401 intervention of a trust, there is some reason for construing 1814. it a gift of the capital or stock ; but where a trustee is inter- BRINGHURST posed to apply them, the cestuy que trust can never call for et ux. a transfer of the principal. The sale of the fund in this case v - is not material, because the question is whether the plain- U * BER tiffs have title ; and that must depend upon the will. 2. As to the interest, the trustees merely wish the opinion of the Court; but in answer to the plaintiff's argument, it is to be remarked that the provision after Mrs. Brewster'a death can only be for the maintenance and education of her children, both of which terms have in equity an ascertained reference to infancy or minority. TILGHMAM C. J. The intention of the testator is not as clearly expressed as could be wished, because he is not ex- plicit as to the principal of the 80OO dollars stock of the United States. Yet considering the nature of that stock, I think it may be concluded that he did not mean that any part of it should return to the mass of the residue of his es- tate. The six per cent, stock is no more than an annuity for years, part of the principal being sunk annually. At no dis- tant period then, the whole will be paid. It would be giving a construction too hard against the legatees, to say that the trust should cease when the mother should be dead and the children arrive at the age of twenty-one. It is true that their education is mentioned, but so also is their maintenance, which would be as expensive after the age of twenty-one as before. The words of the will may bear this construction, that the whole dividends paid by the government annually should be applied to Mrs. Breivster and her children. As to the time past then, the trustees may now pay the full amount of all the dividends which would have been receiv- ed if the stock had not been sold, and the same rule may be adopted in future. This is going as far as can reasonably be done in favour of the legatees. The principal could not be paid to them without disregarding the will of the testator. YEATES J. and BRACKENRIDGE J. concurred. Judgment accordingly. END OF MARCH TERM, 1814. VOL. VI. 3 E CASES IK THE SUPREME COURT Of PENNSYLVANIA. Lancaster District, May Term, 1814. 1814. ILGENFRITZ against DOUGLASS. Lancaster, or>m> Thursday' m *-RROR. May 19. if a defendant rTpHIS action was commenced in the Common Pleas of appeals from an award in the Com- -- Dauphin county after the one hundred dollar law, by than a hund^red^which a P ar ty recovering less than a hundred dollars in the dollars, and the Common Pleas, is not entitled to costs, except in certain same or a greater cum is recovered Cases. on the appeal, he is liable for the costs of the ap- The cause was referred to arbitration by the defendant any costs before^ in December 1809, and in March following the arbitrators the appeal. awarded to the plaintiff 80 dollars, without costs of suit. On the same day the defendant appealed, and entered into a recognizance, according to the 13th section of the arbitration law of 29th March 1 809. The cause was tried in September 1811, and a verdict found in the plaintiff's favour for 86 dollars 7O cents, with six cents damages and six cents costs. The Court below were of opinion that the 13th section of the act of 29th March 1809, did not apply to a defendant in a suit commenced in the Common Pleas, but cognizable before a justice of the peace ; and therefore directed the judgment to be entered without any costs. The only point submitted in this Court, was whether the defendant was not liable to the costs of the appeal. JJopkins for the plaintiff in error. Elder for the defendant in error. CASES IN THE SUPREME COURT, 8cc. 403 PER CURIAM. The defendant below was subject to the 1814. payment of all costs subsequent to the appeal ; but not of J LGENFRITZ any costs prior to the appeal. v. Judgment reversed. DOUGLASS. Gb 403' The Commonwealth against IMMELL. May 21. defendant in this cause was convicted at the last This court win Oyer and Terminer for Dauphin, of fornication and JJ^^rVwiit of bastardy, and judgment was given. He afterwards applied error in a criminal to Judge Teates for his allocatur to a writ of error, upon where it has rea- the ground that the jury had been drawn by the sheriff and J2 JiHl^ 2S one county commissioner, instead of at least trvo, in confor- affecting the J merits of the mity with the act of assembly and the precept. His honour particular case, refused to allow the writ; and the same motion was noWp^^ 1 "^"^" made to this Court, by upon other cases. Godwin and Hopkins for the defendant. Duncan contia. TILGHMAN C. J. Taking it for granted that the jury was not properly drawn, the question will be, Whether this Court ought to allow a writ of error for the purpose of reversing the judgment. By the act " to establish the judicial courts " of this Commonwealth, in conformity to the alterations "and amendments in the constitution," (13th April 1791) sect. 7. it is enacted that no writ of error shall issue, " unless " the same shall be specially allowed by the Supreme Court, u or one of the justices thereof, upon sufficient cause to it " or him shewn, or shall have been sued out with the con- u sent of the attorney general, which special allowance or " consent shall be in writing and certified on the said writ." In considering the sufficiency of the cause shewn, the court must be governed by some fixed principle according with the intent of the act of assembly, and conducive to the pub- lic good. I have always supposed that it was not sufficient to shew a trifling error in form, but that the court or judge should be satisfied that there was reason to think there had been an error either affecting the merits of the case, or of a 404 1814. COMMON- WEALTH v. IMMELL. CASES IN THE SUPREME COURT nature so important with regard to its bearing on other "cases, that it was necessary to correct it. As to the merits of the particular case before us, there is no reason to sup- pose they have been affected by the error complained of. In all probability the jury would have been the same, if both commissioners had attended. Then how stands the matter with respect to the public ? There is no important principle of law to be settled ; no suggestion that the court of Dauphin county made any mistake, or refused to conr sider any point brought before them by the defendant. No objection was made to the jury ; but the defendant went on to trial, either with a view to reverse the judgment in case he should be convicted, or (which is more probable) not then knowing the error, which he has since discovered. In either case he ought to be bound by the judgment. If he knew of the defect, and took the chance of a verdict in his favour, with a secret intent to overturn it in case it should be against him, he acted uncandidly. But if he did not know of it, he has only himself to blame for ignorance of what appeared on the record. The consequence of allow- ing this writ of error will be very serious j for if we allow it, we must do the same in every case decided at the same court, so that we shall prostrate the whole proceedings of the court for no useful purpose, but barely to incur the ex- penses of new proceedings in cases which, for ought that appears, have already been fairly tried and justly decided. In my opinion this would be an exercise of discretion not conformable to the intention of the act on which the defen- dant founds his motion. I am therefore against the allow-i ance of the writ of error. YEATES J. having previously refused the allocatur, gave no opinion. BRACKENRIDGE J. concurred with the Chief Justice. Motion denied. OF PENNSYLVANIA. 405 HANTZ administrator cum test, annex, of SEALY 1814 against SEALY. T^^~ 6b 405 g'Sj 59 7o , . 73 144 Jnonaay, IN ERROR. May 23. c *. j.i_ r Tt Marriage is a was an action of assumpsit in the Common Pleas c i v ,i contract, of Tork county, brought to August Term 1807, ty^S^ Mary Scaly the plaintiff below, to recover the amount of the words in the pre- personal estate of Henry Sealy her late husband, bequeathed to her by his will. The Narr contained also a count for butlt a man s *y* * to a woman, " I money had and received. The defendant pleaded ; 1. Non" take you for my .. TII ^ i ^-rr !_ T " wife, ' and the assumpsit ; 2. Payment ; 3. 1 hat the plaintiff was his wile, woman answers, ' to be sure he is ' my husband, Upon the trial of the cause, the plaintiff's counsel, in sup- port of thejirst issue, offered in evidence the will of Henry Sealy dated the 21st of March 1798, and certified by the^ ?< Register of Tork county to have been duly proved by themge. i - i * u r ~/i ; An executor is oaths of the subscribing witnesses, on the 12th 01 April no t liable to an 1798. To this the defendant's counsel objected, and P^-^iii^he pl-oblte duced to the Court in support of their objection : 1. Theof the wiiiissus. record of an appeal by Henry Hull and another, made on norw iu anact i OQ ' 'good enough," eferring to a past I legal marriage the 25th of June 1799, to the Register's Court of county, from all acts and decrees of the Register relative to squire validity i MI . A i r iL n , /-, bv the subsequent the will in question: 2. An order 01 the Registers Court confirmation of on the 4th of December 1799, directine; an issue of devisavit^ W1 "- In an action of oel non in the Common Pleas of Tork : 3. The record of the debt or on the trial, verdict, and judgment in favour of the will, in the Circuit Court in May 1802 : and 4. The record of an appeal c ' ebt due fron } y the testator, tiie from that judgment to the Supreme Court, and the final con- plea of non est firmation of the will in May 1810, more than two years asmmpsit isTa after this suit was commenced. The counsel for the plaintiff a( j m i s . s ' 1 on , ot * >vlH ot which the de- then gave in evidence that on the 12th of April 1798, letters fondant isexecu- of administration with the will annexed pendente lite were th * *' e action granted to Boreas FahnestocL who settled his account in far a demand on winch the testator the Orphan s Court of Tork county on the 22d of September &* not liable, a 1802, and obtained his discharge on paying over the balance ' of 4334/. 14*. 3:^. remaining in his hands, part in cash and part in bonds and notes &c. to the defendant Hantz, who on the 24th of September, obtained letters of administration de bonis non cum testamento annexo, and received the ba- lance accordingly. The plaintiff's counsel also gave in evi- 406 CASES IN THE SUPREME COURT 1814. dence that Hantz was plaintiff in the feigned issue in the HANTZ Circuit Court, and that on the 25th of May 1805, after the v. appeal by the defendants in that suit to the Supreme Court, SEALY. he treated the appeal as if it had been abandoned, and issued execution for the costs, and received them. From this, and the acceptance of the administration it was inferred that Hantz was estopped from alleging that the paper in ques- tion was not the will of Sealy, or that the appeal was sub- sisting when this suit was commenced. Upon the whole matter, the two assistant judges against the opinion of the President, admitted the will, and sealed a bill of exceptions. Upon the second issue of payment, there was no evidence. Upon the third, it was proved that a marriage took place between the plaintiff and defendant before a clergyman in the month of January 1799; that he and she had given receipts by the name of Jacob and Mary Hantz ; that they cohabited as man and wife, had children, and had executed deeds for land, in which she was stiled his wife, and had acknowledged them as such. At the time of this marriage it was however perfectly clear, that the defendant had another wife living, from whom he had been separated according to his own notion effectually, but without any effect whatever in law. A legal divorce was afterwards obtained, and Hantz and Mrs. Sealy having come to Mr. Watts their counsel on business, he advised them to cele- brate a new marriage. Hantz then said, " / take you (the plaintiff) for my wife ;" and the plaintiff being told that if she would say the same, it would be a complete marriage, she replied, " to be sure he is my husband good enough" Mr. Watts advised them to repeat the marriage in a solemn manner before a clergyman, and he thought they went out for that purpose ; but it was never done. The matters objected by the defendant were; 1. The marriage, which was said to be proved both by the ceremony before Mr. Watts, and by the cohabitation and acts of the parties. 2. That no express promise having been proved, the action of assumpsit would not lie upon an implied pro- mise, until after a settlement of the administrator's account, and an order of distribution by the Orphan's Court. 3. That if a promise might be implied before, at all events it could OF PENNSYLVANIA. 407 not be until it was the defendant's duty to pay, in other 1814. words until the will was established; of course the action HANTZ~ was premature. 4. That the greater part of the property v. being in bonds and notes, the plaintiff could not recover the SEALT. amount of these in an action for money had and received, because she had not proved their conversion into money. 5. That no refunding bond had been filed before the suit was brought. The President charged the jury ; 1. That as to the cohabi- tation and acts of the parties, they did not amount to a mar- riage, but were facts from which a marriage might be inferred. They were circumstances on which to ground a presumption of marriage, and might be met by circumstances, shewing that they were founded on some fact unconnected with marriage. As for instance, if the cohabitation was merely the consequence of the marriage before the clergy- man, which was clearly void, and if the acknowledgments referred entirely to the fact of that marriage, then they could not be considered as referring to any other marriage, nor have any weight in proving the marriage contended for. These facts would entirely destroy the presumption of a legal marriage, that would otherwise arise from the cohabi- tation and acknowledgments ; and the jury were to decide upon them. As to the marriage before Mr. Watts, there was no doubt that marriage in Pennsylvania was so far a civil contract, as to be governed by the municipal laws of the state, viz. the statute and common law, without the in- tervention of any spiritual or ecclesiastical law, as in Eng- land. There was no particular form of ceremony established by the law of Pennsylvania which was to govern in all cases : but marriage was a very important and solemn institution, and the manner in which it was to be contracted, ought to be suitable to the nature and inportance of the engagement. It was not absolutely necessary to be done before a clergy- man, or a magistrate ; but it ought to be entered into with consideration and deliberate assent, and ought to be done formally and solemnly. The Court did not think it neces- sary to lay down any rule as to what form and ceremonies might be requisite to form a marriage ', but they were de- cidedly of opinion, that the facts which occurred before Mr. Watts did not constitute a legal marriage. 2. That 408 CASES IN THE SUPREME COURT 1814* where assets were in the hands of an executor, the law would HANTZ imply a promise before a settlement of accounts and an order of distribution. 3. That as to the effect of the will, it had already been decided by a majority of the Court, in receiving it as evidence. 4. That the jury should be satisfied that the amount claimed had been received by the defen- dant before the commencement of the suit ; but that the jury might presume this as well as any other fact from the evi- dence. Direct proof was not necessary. 5. That the want of a refunding bond should have been objected on the return of process or in a plea in abatement, and that it was now too late. To this charge an exception was taken, and all the points that were urged below, were now argued in this Court, by Montgomery and Duncan for the plaintiff in error, and by Bowie and Hopkins for the defendant in error. TILGHMAN C. J. In the assignment of errors, several ex- ceptions are taken to the charge delivered by the President of the Court of Common Pleas, of which it is necessary to take notice ; but the main ground of defence is, that the plaintiffs could not support an action, until the validity of the will was finally decided* The defendant pleaded that he was married to the plain- tiff, on which issue was joined, and it was objected that the judge ought to have directed the jury that the evidence proved the marriage. The judge laid down the law correctly. He told the jury that marriage was a civil contract, which might be completed by any words in the present time with- out regard to form. He told them also, that in his opinion the words proved did not constitute a marriage, and in this I agree with him. The plaintiff and defendant came to their lawyer Mr. Watts on business, without any intention of marrying. They had long lived in an adulterous intercourse, although they considered themselves as lawfully married. la fact they had entered into a marriage contract which was void, because the defendant had a former wife living, from, whom he had been separated by consent but not legally. Some time before the parties came to Mr. Watts, a legal di- vorce had been pronounced, and Mr. Watts advised them, to celebrate a new marriage. The defendant said, " I take OF PENNSYLVANIA; 409 *' you (the plaintiff) for my wife," and the plaintiff being told 1814. that if she would say the same thing the marriage would be HANTZ complete, answered, " to be sure he is my husband good u. " enough." Now these words of the woman do not consti- SEALY. tute a present contract, but allude to the past contract, which she always asserted to be a lawful marriage. Mr. Watts advised them to repeat the marrriage in a solemn manner before a clergyman, which was never done. So that under all circumstances, it appears to me, that what was done was too slight and too equivocal to establish a mar- riage. 2. Part of the personal estate which had come to the hands of the defendant was cash, and part bonds, notes &c. The defendant contended that this action for money had and received for the use of the plaintiff, could not be sup- ported without proof of the money having come to his hands. The law is so, and in looking at the judge's charge, I find that he so declared it, but told the jury, that although there was no express evidence of the receipt of the money 4 yet they would be justified in concluding that it was re- ceived, if they were satisfied that such was the fact by cir- cumstantial evidence. The charge therefore was right. If the jury drew a wrong conclusion, it is not for this Court to rectify it. 3. The remaining exceptions may be reduced to one, viz. whether the law raised an assumption to pay the money in the hands of the defendant under the circumstances of this case. In considering it, we must take the case as it stood at the commencement of the action; for if there was no as- sumption then, nothing which has happened since can alter it. The plaintiff's claim is founded solely on the will of her husband, and the only evidence of that will which the law admits, so far as concerns personal property, is a probate in the register's court, to which an appeal had been made from the act of the register individually in admitting the will to probate in the first instance. The decree of the re- gister's court was suspended by the demand of an issue to tiy the validity of the will, and it is enacted by the act of 13th April 1791, that the verdict returned to the register's court on that issue shall be conclusive. When this action VOL. VI. 3 F 410 CASES IN THE SUPREME COURT 1814. was commenced the issue was not finally decided, because HANTZ although a verdict had been taken, and judgment entered in v. the Circuit Court, there was an appeal to the Supreme Court, SEALY. which held the validity of the will in suspense. The verdict had not been returned to the Register's Court, nor could it be returned until the appeal was decided ; for upon that de- cision it depended, whether the verdict should stand or a new trial be had. In this situation the plaintiff brings her action, founded on implication of law, for no actual promise is pretended. I enter not into the question, whether any kind of action can be supported but that pointed out by the act " for the more easy recovery of legacies," but will take for granted for the present that where the law enjoins pay- ment of money, it raises a promise to pay. What was the duty enjoined by law on the defendant ? He was bound to pay the debts of the deceased as far as the assets extended, because the propriety of paying them did not depend on the will. Debts must be paid, will or no will. But it was not the duty of the defendant to pay any thing, which depended on the will, until it was decided whether the will existed. On the contrary such payments would be at his own peril. It is very clear that if a legacy had been paid, and the issue had been finally decided against the will, the defendant would have been responsible. The plaintiff's argument then leads to this ; that although the law does not require payment, and prudence forbids it, yet the law raises an assumption to pay. The conclusion being palpably false, the assumption falls to the ground, and therefore the action cannot be sup- ported. But it has been strongly urged on the part of the plaintiff, that the plea of non-assumpsit was a confession that there was a will, of which the defendant was executor. In proof of this, cases were cited which shew, that in actions of debt or on the case against an executor for a debt due from the testator, the plea of non est factum or non assumpszt is an admission of a will, of which the defendant is executor ; but those cases are widely different from the present. There the matter put in issue was, whether the testator made the as- sumpsit, or whether the bond was the deed of the testator. Consequently the will not being denied, was admitted. But here the action is not for a demand on which the testator OF PENNSYLVANIA. was liable, and the plea ofnon assumpsit applies to the de- 1814. fendant and not to the testator. Under this plea the defen- HANTZ dant may give every matter in evidence which shews either v. that he made no assumption before the suit brought, or that SEALY, the demand was extinguished before the suit brought. Sup- posing upon this issue it had been proved expressly , that the plaintiff had a cause of action, but that it did not arise until after the commencement of the suit. Surely he could not have recovered. Now that is the very case appearing on this record. Whenever the will was finally established, the law raised an assumption j but that was not till after the commencement of the action. I am therefore of opinion that the judgment should be reversed. YEATES J. after stating the facts at large, delivered his opinion. I consider the exception taken to this suit as brought pre- maturely, to be fatal. Upon this point I wholly concur with the President. The objection was founded on the probate of the will by the register, the operation of whose sentence re- mained in suspense, while the issue taken upon the validity of the will was pending and undetermined. The defendant in error relied on this probate only, and did not adduce the wit- nesses to the will, nor account for their non-attendance. Until the will was finally determined on, the executor or adminis- trator with the will annexed was under neither a legal nor moral obligation to pay the legacies devised. If he made such payments, and the validity of the will should be afterwards established in the dernier resort, he would risk his own pro- perty. No debt due from the testator was sought for, but a demand flowing from his bounty. Whether he had been thus bountiful or not, formed a material subject of inquiry. The cause of action arose on the will itself; and on the plea of non-assumpsit, every species of defence is open to the defen- dant. It is fully settled, that on this issue, every thing may be given in evidence which shews that the plaintiff has no right to recover, except perhaps a general release. 2 Barnes 293., I Ld. Ray. 217., 2 Stra. 733., 3 Burr. 1353. And even as to this exception the law is doubtful, 2 Burr. 1010., Buller 148, 149. The plaintiff below was bound to prove her case as she laid it, and must shew an existing cause of action when she brought her suit. A legislative exposition of the CASES IN THE SUPREME COURT 1814. effect of an appeal from the Register's Court is given in the HANTZ 18th section of the act of 13th April 1791, 3 Dull. St. Laws v. 98. " No appeal from the decree of the said Register's ALY. " Courts concerning the validity of a will or the ri^ht to ''administer, shall stay the proceedings or prejudice the act <' of any executor or administrator pending the same, pro- " vided the executor shall give sufficient security for the ^ faithful execution of the will and testament to the regis- ter &c." The case cited from Godolphirfs Orphan's Legacy 64, third edit., fully proves the proposition which I have at- tempted to establish. There debt was brought by an execu- tor, and the will proved by sentence was shewn in Court. The defendant pleaded that the pretended testator died in- testate, and that administration was committed to him, and shewed an appeal from the said sentence of the probate of the will. Coke and Doderidge held that the appeal suspend- ed the probate, and so upon the matter was not any probate at all, and therefore the plaintiff could not have action. I cannot conceive that Hantz is concluded by taking out letters of administration de bonis non with the will annexed, from insisting that legal evidence should be given of the will, or that his entry of a judgment in the Circuit Court docket on the 25th May 1805, and issuing an execution for costs returnable to December term following, could operate as the abandonment of an appeal instituted by his adversa- ries, without their consent. This was a palpable mistake, and was rectified at once by the counsel. The appeal to this Court remained on our records. It is admitted by the counsel of the defendant in error, that he brought forward his appeal, and argued it in May term 1810. Why was this done, if the appeal had been previously abandoned? Why was it thought necessary that the decision of this Court should be pro- nounced ? If the judgment of the Circuit Court had not been affirmed here, previous to the trial of the present cause, it cannot be pretended that the probate of the will before the register could have been admitted in evidence. I can see no reason why, when it has been affirmed, our judgment in 1810 should have a retrospective effect to validate proceedings instituted to August term 1807. OF PENNSYLVANIA. 413 I hasten to the other matters assigned for error, wherein 1814. I fully assent to the charge of the President to the jury. HANTZ His remarks as to marriage being a civil contract by our v. laws, I take to be perfectly correct. It is binding between SEALV. the parties, when entered into with full consent per verba in presenti. The acknowledgments of the parties being man and wife, evidently refer to the illicit connexion between them during the subsisting marriage between Hantz and his for- mer wife, who was then living ; and as to what passed in the presence of Mr. Watts, which has been particularly de- tailed by the Chief Justice, an explicit consent was not given on the part of the woman, nor did he himself consi- der it as a valid marriage at the time, because he recom- mended to them more than once to be married by a clergy- man, and he thought they went out for that purpose. There is no difficulty in saying that where it may be fair- ly presumed that money has been received for the use of another, there is no occasion for express proof. If the case will justify it, the jury may presume the payment of money as well as any other fact. And as to the tender of the refunding bond to the plain- tiff in error, previous to the commencement of the suit, if he meant to have made that a serious defect, he might have brought it before the Court upon an objection against the suit being sustained, or might have pleaded it in abatement, so that the fact might have been put in issue and fairly tried. When a suit for a legacy has progressed to a trial on its merits, and no complaint made of the want of a tender to the executor or administrator with the will annexed, before the action was brought, I should feel myself strongly disposed to assert, that the party had slipped his time. Here the re- funding bond is actually filed in the cause ; I cannot but consider the exception as a surprize on the plaintiff below on the trial. Upon the first ground alone, I am of opinion that the judgment of the Common Pleas be reversed. BRACKENRIDGE J. I have been unwilling to request this case to be holden under advisement, because as the judg- ment is to be reversed, it would be for the interest of the plaintiff that it be done immediately, that she may go on again. At the same time, I am not perfectly satisfied, that 414 CASES IN THE SUPREME COURT 1814. HANTZ v. SEALY. the judgment might not be supported. But it would require some investigation of principle before I could venture to give reasons of dissent. If this case should be reported with the opinions of the judges, I may give a note to be added to the report on the subject. I have been wondering only whether the defendant ought not to have pleaded at an early stage the caveat against the will, or the appeal puts darre'tn continuance, so as to give the plaintiff an opportu- nity of replying fraud and collusion, or the special matter, or perhaps negligence in the execution of the trust, that she might by damages compel an administration and settlement. What else could be done at common law by an action on the case or account render? But whether our system super- sedes, that will be the question. I may consider it perhaps, and signify my concurrence with the majority, or my dis- sent, with the reasons in the case. Judgment reversed. Note which may be added by the reporter. The facts of this case are these ; the will of Henry Sealy proved I2th April 1798. Administration, with the will annexed, committed same day to Boreas Fah- iiestock. 22d September 1802. Settlement of Boreas Fahnestock's administration account and balance, 4334Z. 14s. 3d. September 24th, 1802. Letters of administration de boms non with the will annexed of Henry Sealy, granted to Jacob Hantz. Release same day by Jacob Hantz to B- Fahnestock % for the balance, money bonds and notes, 4334J. 14s. 3d. August Term 1807, the present suit brought. The defendant pleads that he did not assume or promise to pay. 2. That if he did assume, he has paid. 3. That the plaintiff is the wife of the defendant. The Court affirm the judgment so far as respects the opinion of the Court On -this matter of fact plea, as decided by the jury. No evidence of any payment appeared or was alleged on the evidence. The whole turned on the plea of the defendant that he did not assume. This he attempted to make out, by alleging, that he was not bound to pay until the final settlement of his accounts. The question then will be, whether a legatee must pursue the executors or administrators with the will annexed, through the medium of the Register's Court, and compel a settlement by citation, attachment &c. and wait until all is ended here before he can bring a suit. The result of my opinion is, that the legatee may bring a suit without waiting for this, and this as well at common law as on our act of assembly . The proving assets over and above the debts &c. will raise a promise to pay- According to a modern decision, Coivper 284, an action may be maintained in a court of common law, against an executor in that character, on his express promise to pay a legacy in consideration of assets. And in another case, Coivper 289, it was also ruled, that on the same promise grounded on the same consideration, an action will lie against an execu- tor personally in his own right. In another case. 3 Peere Williams 208, some OF PENNSYLVANIA. 415 judges have held, that policy and convenience forbade the courts of common law 1814. to entertain this species of action, since they can impose no terms on the party suing ; whereas courts of equity in such suits interfere in a manner highly bene- llANTZ ficial to private families. Having no court of chancery, our act of assembly gives V. the action, and our courts will exercise the chancery jurisdiction, interposing SEALY. terms before they permit execution. It is not competent to the executor or administrator to plead non-assumpsit, if he means to rely on not being executor, or no will made or proved, or the will caveated- But all this should be pleaded in the first instance, and shewn specially if he means to rely on it. From the circumstances of this case there was reason to believe that the caveat was procured by the defendant, or at least a continuance of it procured ; and there was no way of getting this put in issue before a jury, but by the defendant's plead- ing it, and giving the plaintiff an opportunity to reply. Although the defendant ob. tained letters of administration &c., with an undertaking to settle his administra- tion account within a year, this suit is not brought till five years after, and yet the defendant alleges, that no implied promise could arise, because he had not settled. It may be urged as having some analogy to this, that where a writ of error is brought against good faith, or where it manifestly appears either from the con- fession of the parties themselves, or from the admission of the attorney of the party who sues out the writ of error, or from expressions equivalent to an ad- mission, that it is brought for the mere purpose of delay, it is holden to be no su- persedeas. 6 Vin. Sup. 185., 4 Vin. Sup. 70,71. Action of debt lies on a judgment in a Court of Common Pleas after writ of error brought, and the record removed to the Court of King's Uench. 6 Wila. Bacon 420, 421. An action of trespass for mcsne profits, brought pending a writ of error. 20 Vin. 76. Writ of error, only a snpersedeas of execution, not a suit on a judgment. The power of an executor, or the right of a legatee or devisee, is derived from the will, and not from the probate. An executor may file a bill in equity before probate, and a subsequent probate makes the bill a good one. 3 Peere Wms. 351. An executor accepts the trust, or administrator, and sufficient assets come to hand, is he not bound to pay without an express promise, which he cannot be compelled to give ? See Sac. Abr. Tit. Legacy, letter M. See letter L. Assent to a Legacy, 4 Massa. Rep. 634., See 2 Sail. 100., 2 Peake's Law of Evidence 344., 1 Comyn's Dig. 30., Bullets N.P. 143. 1 .-ilk. 293., 1 Saund. Wms. edit. Ill, 112, note 2., Ib. 336. note 10., 3 Wils. Sac. 87. letter M., Ib. 95., 1 Ld. Ray. 265., 2 Ld. Ray. 1510, 1511. It would shew the necessity of pleading the caveat depending &c., and what took place on the proving the will and the appeal, with a presumption of an aban- donment of the appeal, paying costs kc. From all those it is abundantly evident to me, or at least highly suspicious, tliat {he caveat was by collusion, and that the whole was done to baffle the legatee. 1 incline to affirm the judgment of the Court, that on the plea of non-assumpsit the will ought to have been admitted in evidence. In the case of letters of udmiuis- iration aud non-assumpsit pleaded, 2 Dall. 100, seems in point. 416 CASES IN THE SUPREME COURT ;' 8s, 5%, 0s,338 tfcraag - - ' - STOEVER against The Lessee of WHITMAN. *3 Lancaster, . w 66 Monday, !N ERROR. / 19 ff? May 23. The registry ofTHiHIS was a writ of error to the Common Pleas of Dau- births and deaths, , . keptbyareligi- A />*m COUDty. ous society, is evi- dence; but it must - . . i P be proven at com- In the lower Court it was an ejectment by the lessee of ander*the seaTof 7 Whitman, to recover the possession of 12 acres 26 perches the corporation, o f i ano m tne town of Lebanon, for a part of which a ver- is not evidence. . . . r . A recital in a diet and judgment were obtained by him ; but in the course of the tri ^ bills of exceptions were taken to the opinion of the property of D, foal Court, which now came up with the record, and which, is evidence against . .... . . r , the grantor with all the material facts, are noticed in the opinion ot the (though not con-/-,-] . /- T elusive) thauD Chief Justice. had a fee simple in the land ; and if - . ^ * . t . _ . the deed further Smith and Hopkins tor the plaintiff in error* recites, that D's estate had been divested by an en- Godwin and Duncan contra. try of the grantor for hreach of con- claims' under J> TILGHMAN C. J. Thefrst exception is to the admission (but not under o a p a p er purporting to be a copy of the registry of the the deed) is not > . T< . . , estopped from de- German Reformed Congregation at Easton, mentioning the jjttSJSS time of the death of Eleanor De Haas. This paper is under himself of thefirst t ^ e sea j o f the corporation, and certified to be a true copy estate. by Jacob Arndt president, and Thomas Pomp secretary and - preacher of the congregation stances will justify j t i s enacted by the "act for keeping a registry in reli- the presumption , . , of a deed, and it is" gious societies, passed in the year 1700, that " the regis- trv ^-^ by any religious society in their respective meet- the facts u m ~ book O r books, of any marriage, birth or burial within proved will justity f / f , , , , , the presumption. " this province or the territories thereof, shall be held good c Sm e in C a e p f arti-"and authentic, and shall be allowed of on all occasions cular place toen-u whatever." ter for breach of . a condition in a This act is in conformity to the principles of the common h^man r ne n rd d .ffetlaw. The registry is good evidence of the death, but before ent from that au- j t j s admitted, proof must be made of its authenticity. The thorized by the ... . - . .. , rules of the com- act is silent as to the mode or proving this j we must tnere- term^of the deed, ^ ore have recourse to the common law proof, which is by is inadmissible, producing the original registry, or a copy proved by the It is no objec- * b . , , , . . \. t. 1 T- tion to a convey- oath of a witness who has compared it with the original. J ance of land in Pennsylvania.) thattbe grantor was out of possession at the time. OF PENNSYLVANIA. 417 was contended that the German Reformed Congregation being a body corporate, a certificate under the seal of the cor- poration was evidence of the truth of the copy. But I know of no such principle. Corporations being invisible bodies, can make a contract only by their seal, which is visible. This is from necessity. But there is no necessity for their certifying copies of their acts. It might be convenient if such certificates were received in evidence; but that alone will not authorize courts of justice to receive them. The party against whom a fact is to be proved, has a right to call for the oath of a witness, except in those cases where it is otherwise ordered by act of assembly. I am therefore of opinion that the paper ought not to have been admitted. The second exception is to the opinion of the Court, as to the several deeds produced by the plaintiff in support of his title. This opinion was that from these deeds, it appeared that John Philip de Haas deceased, under a devise in whose will the plaintiff claimed, died seized of an estate in fee simple. The land in dispute consists of lots in the town of Lebanon, amounting to 12 acres and 26 perches. These lots were conveyed in fee simple to different persons, by the proprietaries of the town, reserving an annual perpetual ground rent, with power to distrain for the same, and a condition annexed, that if the rent should be behind and un- paid in whole or in part, for the space of thirty days next after any of the days on which it ought to be paid, and no distress could be found on the premises sufficient to satisfy the rent in arrear, with all costs and charges, it should be lawful for the grantors, their heirs or assigns to re-enter and hold the same as in their first and former estate, and from and after such re-entry the indenture by which the estate was conveyed to the grantee should be void and of no effect, and it should be lawful for the grantors, their heirs and as- signs to grant, bargain and sell the premises or any part thereof to such persons and for such estates as they should think fit, free from the claim and demand of the grantees or their representatives. The plaintiff, doubting whether he should be able to deduce a direct title to the whole premises from the proprietaries of Lebanon, gave in evidence a deed from the defendant Francis Stoever and others proprietors of the said town to Samuel Miley. This deed contains reci- VOL. VI. 3 G 1814. STOEVER v. Lessee of WHITMAN. 418 1814. STOEVER v. Lessee of WHITMAN. CASES IN THE SUPREME COURT tals, in which it is said that two contiguous lots, part of the premises, after several conveyances mentioned in the said recitals, became the property of the said J. P. De Haas, also that the said De Haas became entitled to and possessed of another lot, part of the premises originally granted to a cer- tain James M'-Ne'iJf, and that the said De Haas having died possessed of the said three contiguous lots, without having paid any part of the rents for upwards of three years before the time of his death, and his executors having neglected or refused although often required, to pay the same after his death, the said F. Stocver and the other grantors, being the true and lawful owners and proprietors of the rent charges issuing out of the said lots, did by virtue of the condition annexed to the several grants, re-enter into the said lots, no sufficient distress being to be found on the same, and sell the same at public auction to the said Miley for the sum of 35/. 11*. 0 the lessor and Finley leased the premises to Eleanor Baxter and her as- those claiming signs for twenty years, for which she was to board Finley bound by'the* and keep his house without any expense to him; and each lease - party was bound to performance in a penalty of 200/. At the date of the lease, the lessee was a married woman coha- biting with her husband, who was not mentioned nor referred to in the deed. He lived with her some time on the premises, and died in October 1805 in the western country, where he went in quest of a settlement. His wife, according to her witnesses, both before and after his death, and up to the death of Finley in May 1807, performed the stipulations of the lease. The plaintiffs claimed under the will of Finley, dated the 12th of March 1806; and they offered evidence to shew that the defendant's husband had declared that he would not permit the lease to stand, that while he was gone to the western country, she said that she had burned the lease in the presence of Finley, and that after her husband's death, Finley on the 4th of February 1806 leased part of the pre- mises to one Harris -for five years from the 1st of April 1806, at a rent of ten pounds the first year and fifteen pounds the other years, which lease Norris on the same day assigned to Mrs. Baxter. By Finley's will he devised the premises to Mrs. Baxter for five years from the date of his will, which time, and that in the lease to Norris, had expir- ed before this ejectment. The President of the Common Pleas charged the jury, that the lease was void because made to a feme covert, against whom no action could be supported for the non-per- 428 CASES IN THE SUPREME COURT 1814. formance of her part of the agreement ; and the defendant's BAXTER counsel tendered a bill of exceptions. SMITH. Cassat and Hopkins for the plaintiff in error. The charge was erroneous, because 1. The lease was binding on the lessor and the husband of the lessee; 2. The lessor having gained the whole consideration, his representatives cannot avoid it. 1. A feme covert may take by purchase unless her hus- band expressly dissents ; Co. Lift. 3 a., 1 Com. Dig. 566, Ba- ron &? Feme P. 2.; and if she may take absolutely, so she may take upon condition, as that she shall support the grantor for life ; 1 Com. Dig. 570., Bar. & Feme 8, 1O. ; and if her husband knows and does not dissent, the condition binds him. Here was evidence of assent, because the husband lived on the land, and enjoyed the fruits of the lease ; and the judge precluded the jury from weighing it, because he declared the lease void. If the wife seals a bond in the hus- band's presence, and he does not gainsay it, it binds him. 2 Freem. 215. 2. But if there was no assent, the wife confirmed it after her husband's death, and performed her stipulations to the lessor. This being the case, it is against equity for the de- visees of the lessor to set aside the lease ; and the reason of the rule laid down by the judge failed, because, although an action might not have lain against the wife, yet in equity the result was the same, because she had done all that an action could have demanded. Kelly and Bowie contra. The deed of a feme covert is not voidable like some which an infant may execute, but is ab- solutely void ', Co. Lift. 42 , note; and in the present instance . it contained the ingredient of a penalty, which even in the case of an infant is fatal. Co. Lift. 172 0, note. Her deed is void, she is incapable of consent. 1 Bac. Abr. Agreement A. It is void in some cases also, because she is incapable of performing the covenants it may contain, and cannot be coerced. The judge, was therefore right in his charge to the jury, because there was no evidence that the lessee had performed her stipulations, and that being the case, as an action would not lie against her, the lessor and his representatives were without remedy. But as the whole evidence is brought up OF PENNSYLVANIA. 429 by consent, this Court will not reverse the judgment for an 1814. error in the charge, if justice has been done. The lease did BAXTER not bind the husband, because there was evidence that he v. dissented; and the taking a new lease after her husband's SMITH. death, was an acknowledgment by the wife that the first lease was void. TILGHMAN C. J. It was given in charge by the President of the Court of Common Pleas, that the lease was void, be- cause made to a married woman, against whom no action could be supported for the non-performance of her part of the agreement. He took for granted from the evidence that the husband did not assent. This broad position took from the jury all right of considering the circumstances of the case; and it appears to me that the president went too far in say- ing that the lease was void, because no action lay against the woman. For granting that no action lay, yet if in fact all the stipulations on her part were complied with, both during her husband's life and afterwards, neither Finley himself who had received the benefit of those stipulations, nor the plaintiffs who claim under his will, would be per- mitted to aver that the lease was void, such averment being against all equity and good conscience. A married woman may take by purchase unless her husband expressly dissents. So that the jury should have been instructed to consider, whe- ther from the direct or circumstantial evidence, George Baxter the defendant's husband had assented to this lease, or whe- ther the terms agreed to by his wife had been complied with, and in either case, if their opinion should be in the affirma- tive, the lease was valid and the plaintiffs ought not to reco- ver. I give no opinion on the evidence, which is sent up with the record, that being a matter not proper for our considera- tion. On the whole I am of opinion that there was error in the judge's charge, and therefore the judgment should be reversed, and a venire facias de novo awarded. YEATES J. The authorities cited on the part of the plain- tiff in error abundantly prove, that a deed made to a mar- ried woman may take effect, provided her husband assents thereto, or even in case he does not dissent. It ought there- fore to have been submitted to the jury, whether any act on 430 CASES IN THE SUPREME COURT 1814. BAXTER v. SMITH. the part of the husband, invalidated this demise. Certain "acts on his part might subject him to the stipulations con- tained in this lease, in equity. If the wife faithfully perform- ed what was incumbent on her to do during her husband's life, and acting under the lease still continued to perform its duties after his death, it would be such an affirmance, as would estop Andrew Finley and those claiming under him, from defeating his solemn deed. But all these facts were withdrawn from the consideration of the jury, by the Court's declaration, that the lease was absolutely void. I think there- fore, that the cause was not decided on its correct merits, that the judgment should be reversed, and a venire facias denovo awarded. BRACKENRIDGE J. concurred. Judgment reversed.. Lancaster, Saturday, May 28. is evidence against JL the defendant, al SHAEFFER against KREITZER. IN ERROR. was a writ of error to the Common Pleas of county. Ipw394< Iwh 15 31 196 71 225 82 124 102 334 though no judg- In the Court below, the action was an ejectment for about entere^if ht n has tweut y acres of land in Tulpehocken and Bethel townships. acquiesced in it by paying the costs and deliver- Upon the trial of the cause, Kreitzer the defendant offer- sion! e ^ e d i evidence the record of a former trial and verdict in Upon an appeal an ejectment for the same land, and upon the same title. from the award J of arbitrators, it is and between parties under whom the present plaintiff and award to the jury, defendant respectively claimed ; having first shewn, that the defendant in that suit, under whom the present plaintiff claimed, had paid the costs, and delivered up the possession according to the verdict to the plaintiff in that suit, under whom the present defendant claimed. The counsel of Shaef- fer objected to this evidence, because no judgment had been rendered on the verdict ; but the Court admitted it. The defendant's counsel further offered in evidence the report of arbitrators in this cause from which there had been an appeal. To this also the plaintiff objected, but the Court admitted it, being of opinion that the defendant had OF PENNSYLVANIA. 431 a right to read the whole record, and of course the report ; 1814. at the same time instructing the jury to disregard the re- SHAEFFER port, which was entitled to no weight whatever. v " A bill of exceptions was tendered, upon which the points k- RElTZEB were now argued in this court. Evans and C. Smith for the plaintiff in error. It is a general rule that a verdict without judgment is no evidence, because it may happen that the judgment was ar- rested or a new trial granted. Montgomery v. Clark (a), 1 Peak 32. The only exception is where the verdict is introduced to shew a trial, in order to prove what a deceas- ed witness swore. Pitton v. Walter (), Fisher v. Kitchen- man (c). But here it was offered as evidence of title. Our own legislature, in giving more effect to the proceedings in ejectment than the common law, confines the effect to cases of two verdicts and judgments. Act 13th April, 1807, 4 Smith's Laws 477* The award was no evidence, because it was the very thing appealed from. As to its being part of the record, that prin- ciple would authorize the reading of a verdict that had been set aside, an attempt that was frustrated in Ridgely v. Spen- ser (cT). It cannot have the least weight, because then it might throw the onus upon the opposite party ; and if it has no weight, it ought not to be read. Hopkins contra. The verdict was evidence for two rea- sons ; first, to account for the defendant's possession, and the payment of costs in the former suit. This brings the case to the rule in Pitton v. Walter. The second reason is, because it was a verdict acquiesced in, which is within the rule of a verdict followed by a judgment. The entry of a judgment was the mere omission of the clerk. There is much confusion as to the point when posteas are or are not evidence. They are or are not so, according to the thing to be proved. Kyp v. Brigham (e}. When the inference which the want of a judgment creates, is rebutted by the acts of the party against whom the verdict passed, the ver- dict is as good as the judgment. (a) BuU. JV. P. 234. (c) Mod. 451. (*) 7 Johns. 170. (*) 1 Stra. 162. ( i T-N ; " ineil, and the 1 he suit was brought to December 1798, and in December f u ii contents 1800, an agreement was filed for "judgment, but no execu- " ^^J^ai "tion to issue, until the title of the land for which the bond " consenting iii r 11 i i iV A i " thereto," is " was given, should be perfected by the plaintiff. At a sub- goo d. sequent day the plaintiff took out execution, which the set aside. His counsel then moved for leave to take out ex- panied the posses- .... rii i -11 s i n thirty years, ecution, which the court refused ; but permitted a trial under is evidence, with- the judgment, to ascertain whether the title had been per- * P" of lts exec fected. A judgment, -,. . , i,, , i- upon which it is The title was brought down without dispute to a certain agreed that no Valentine Dillebaugh the elder, who, according to the P^^in-f^y^J,"", 8 ^ 11 tiff's allegation, by his last will dated the 3d September 1777,piaintift'has per- ,.,,,,. , , . , T , , fected the title to devised the land in equal parts to his sons Valentine and certain land for Christian, and to his daughter Catharine in fee. which the bond that supported Valentine the younger and Christian Dillebaugh, on the the judgment was 26th February 1778, conveyed to Tost Brand, who mar-f e rest. ca ' ried Catharine the daughter; the wife of Valentine not join- . If the same wri- J ting that admits ing in the conveyance. the survivorship Tost Brand and Catharine his wife, on the 1st June 1782, i, er being's'tiii conveyed to Christian Brand. This deed was acknovvledp;- a . llv< ;' assei ' tsth! J t she lias released ed on the 29th August 1808, before a judge of the Com-herdower, and it m r r\ . 7 i , , . . /- is used as evidence mon rleas tor Dauphin county, who endorsed his certificate at -,1^ ; t j s ev i- on the deed that the grantors personally appeared before ( l e " ce V 1 ? 1 the . J r r right ot dower 11 him, "and severally acknowledged the said indenture as not outstanding. " their act and deed, and desired that the same might be " recorded as such ; she the said Catharine being of full age, " separate and apart from her said husband by me examin- 436 CASES IN THE SUPREME COURT 1814. SHALLER etal. v. BRAND. " ed, and the full contents made known to her, voluntarily ~ " consenting thereto" Christian Brand and Feronica his wife, in the year 1783, conveyed to Adam Shatter in fee, and acknowledged the deed on the 20th April 18O8. The first question upon the trial, which took place in De- cember 1812, arose upon the proof of Valentine Dillebaugh's will. It was written in German, \\ ith the signatures of both Valentine and his wife, and subscribed by six witnesses ; but did not appear to have been ever exhibited for probate. Notice had been served on the defendant below and his counsel in 1805, to produce certain title papers on the trial, and generally all papers relating to the lands j but this will was not particularly mentioned. Under the notice certain papers were received in January 1808, by Mr. Elder the counsel of Brand, and a memorandum was taken of them, but it did not include the will. Mr. Elder swore that he could not speak with certainty as to the will, but thought he got it then or sometime after from Shatters counsel. The counsel of the defendants swore, that they had not seen the will until the trial of the cause. The deed from Brand to Shatter in 1783, recited that the grantor's title was de- rived under this will ; and the deed from Valentine and Christian Dillebaugh to Tost Brand, recited that the father had devised the premises to his three children equally, by a will duly proved and recorded in the county of Lancaster ; but no such will was found there. The counsel for the defendants objected to the reading of this paper, but the Court admitted it ; and in conclusion charged the jury, that proof of the execution could be dis- pensed with only on the ground, that it had accompanied the possession for more than thirty years, which was a fact for them to determine ; and if it had not gone with the pos- session, they should pay no attention to it. The next question arose upon the certificate of acknow- ledgment by Tout Brand and Catharine his wife, which the defendant's counsel contended was defective as to the wife, and therefore did not pass her estate or dower. But the judge charged to the contrary. A third was in relation to the dower of Anne, the wife of Valentine Diltebaugh the younger. The fact of her having OF PENNSYLVANIA. survived her husband, and being still alive, appeared from a memorandum in the handwriting of Mr. Elder the plain-"" tiff's attorney, which stated further that she had released her dower. The judge charged that the whole must be taken together, and if so, it shewed that the dower was not outstanding. The last question related to interest on the judgment, which was objected toby the defendants, because the judg- ment was conditional, and it had been the plaintiff's fault that the title was not sooner made perfect. But the judge charged the jury that interest was due upon the judgment, because it was absolute, and the condition applied merely to the execution ; and because the defendants had received the pro- fits of the lands, and had never made a tender of the mo- ney nor kept it unemployed. On all these points bills of exceptions were tendered and sealed. The exceptions were argued in this Court by FisheF and Montgomery for the plaintiffs in error, and by Elder and Hopkins contra. TILGHMAN C. J. delivered his opinion upon the several exceptions as follows : 1. The defendant contends that the plaintiff was not entitled to interest on the bond subsequent to the entry of the judgment, because the judgment was conditional, or in the nature of an interlocutory judgment, and in its nature showed an intention to suspend the interest, until the title was completed. But the judgment was neither conditional nor interlocutory. It was absolute, and the condition or re- straint was annexed only to the execution. Whenever the title was perfected, the plaintiff had a right to take out exe- cution, and the judgment being for the penalty of the bond, the plaintiff might cover under it his -whole interest and costs. The jury did not give interest from the time of the judg- ment on the accumulated sum of principal and interest then due according to our act of assembly, so that the defendant has no reason to complain of the least hardship, considering his case on equitable grounds. He was in possession of the land, the profits of which were equal to the interest of the money, and there was no evidence of his having kept the money lying dead for a single moment. 437 1814. SMALLER et al. v. BRAND. 438 CASES IN THE SUPREME COURT 1814. SMALLER etal. v. BRAND. 2. The next question is on the acknowledgment of a deed from Tost Brand and Catharine his wife to Christian Brand. The act of 24th February 1 770, on which this point arises, directs that the judge who takes the acknowledgment, shall examine the wife separate and apart from her husband, and shall read or otherwise make known to her, the full contents of the deed ; and if upon such separate examination she shall declare, that she did voluntarily and of her own free will and accord seal, and as her act and deed deliver the said deed, without coercion or compulsion of her husband, then the said deed shall be good and valid. It is insisted by the counsel for the defendant, that the form prescribed by the law should be strictly pursued ; but such has never been the opinion of this Court. We have always declared, that it was sufficient if the law was substantially complied with ; and on any other principle of construction, the peace of the country would be seriously affected, as the certificates of acknowledgments of deeds have generally been drawn by persons who were either ignorant of or disregarded the words of the act of assembly. The law must be complied with, but in construing it we shall always be inclined to sup- pose a fair conveyance if possible. Now it is here said, that the wife was examined apart from her husband, that the contents of the deed were made known to her, and she voluntarily consented. It is not straining the expressions " voluntarily consenting thereto" too far to say, that they imply, she declared that she executed the deed voluntarily, and that is sufficient ; for if the execution was voluntary, it was without coercion or compulsion. I am clearly of opi- nion therefore that by this deed, the estate of the wife was legally conveyed. 3. The third question is on an outstanding title of dower in Anne Dillebaugh, supposed to be living in Canada. She is the widow of Valentine Dillebaugh jr., who conveyed his interest in this bond to Tost Brand, the 26th February 1778. There was no proof of this woman's being living or having any right of dower, except by a memorandum in the hand- writing of Mr. Elder, in which same memorandum it is also mentioned, that she had released her right. The Court of Common Pleas were of opinion, that the contents of this paper must be taken altogether, and in this they were cer- OF PENNSYLVANIA. 439 talnly right, so that although it appeared, that she once had a right of dower, yet upon the whole it appeared that she had no right because she had released. 4. The last objection is to the opinion of the Court in ad- mitting as evidence a paper purporting to be the will of Valentine Dillebaugh the elder, bearing date the 3d Septem- ber 1777, by which he devised the land sold by Christian Brand to Adam Shaller, to his sons Valentine and Christian and his daughter Catharine equally in fee. There was no proof of this will, but it was admitted in evidence on the ground of its being a writing which had accompanied the possession of the land for upwards of thirty years. There is no doubt but that ancient deeds under which the possession has gone for thirty years, are evidence without proof of their execution, and it was decided in Jackson v. Blanshan, 3 Johns. 292, that in similar circumstances a will also was evidence. In that case the Court differed in opinion, as to the time necessary to bring a will within the rule of an ancient paper. Spencer thought that upwards of thirty years having elaps- ed from the date of the will, and possession having been held under it twenty-seven years, it might be read in evi- dence without proof. But Kent Chief Justice, and a majority of the Court were of opinion that it required thirty years possession ; and I agree with them, because although the antiquity of the writing affords some evidence in its fa- vour, yet the main ingredient is possession. Both however are necessary to raise that presumption which will justify the Court in departing from the usual rule, which requires the production of the subscribing witnesses or proof of their handwriting, after accounting for their absence. This will bore date thirty-five years before it was offered in evidence, the testator had been dead upwards of thirty-four years, ar- ticles of agreement for sale to the defendant had been exe- cuted by the plaintiff, who claimed under the will, upwards of thirty years, and these articles had been followed by an actual conveyance the year next succeeding, so that posses- sion had probably been held under this will between thirty and thirty-four years. The proof was not positive, that the will had been among the title papers delivered to the defen- dant, nor was it ascertained with certainty at what time the 1814. SHALLEK etal. v. BRAND. 440 CASES IN THE SUPREME COURT 1814. SHALLER etal. v. BRAND. title papers were put into the hands of the defendant. The Court thought, that sufficient evidence had been given to authorize them to permit the will to be read to the jury ; and they permitted it under this restriction, that unless the jury should be of opinion that possession had gone according to the will for upwards of thirty years, they should pay no regard to it. The Court had a right to judge upon the previous matter themselves ; but I do not see that they did wrong in permitting the jury to judge of it, a reasonable foundation having been first laid. And it appears that such foundation was laid, both from the strong circumstance of possession held by the defendant himself, and from recitals in ancient deeds deducing title under this will. The testator left three children, two sons Valentine and Christian, and one daughter Catharine the wife of Tost Brand. The two sons conveyed their interest to Tost Brand, by deed dated 6th February 1798, in which it is recited, that their father devised the premises to his three children equally by a will duly proved and recorded in the county of Lancaster. But no such will has been found on record, so that there is a mistake in that part of the recital. The deed from the plain- tiff to the defendant also recites the title as derived from the same will. These are very strong circumstances. When all persons interested in the estate, declared that the will was made, particularly when the eldest son of the testator says so, who would have been entitled to one half of the land if his father had died intestate, there was surely a good foun- dation for suffering the paper to go to the jury in the man- ner that it went. Upon the whole I am of opinion that there is no error in this record, and therefore the judgment should be affirmed. YEATES J. I fully assent to the correctness of the deci- sions on all the points disputed in this cause, except a single one which I shall consider in the last instance. It has been contended, that the deed from Tost Brand and Catharine his wife to Christian Brand, was not effec- tual to convey the interest of the wife in these lands, by rea- son of a radical defect in the acknowledgment. If the will of her father Valentine Dillebaugh was established, she was entitled to one undivided third part of the lands afterwards OF PENNSYLVANIA. 441 sold to Adam Shatter ; but if her father died intestate, she be- came entitled in her own right to one undivided fourth part," her eldest brother taking two shares under the law regulat- ing descents at the time of her father's death. It is objected, that the words of the acknowledgment by the feme, do not pursue the language of the act of 24th February 177O, but materially vary therefrom. The acknowledgment specifies, rt that she was examined apart from her husband, being of " full age, the full contents of the deed made known to her, '* and that she voluntarily consented thereto." But the words of the act are, that " upon her separate examination she shall " declare, that she did voluntarily, and of her own free will " and accord, seal and as her act and deed deliver the said " deed of conveyance, without any coercion or compulsion of " her said husband." The question on acknowledgments of married women, has come before this Court in three instances. Lessee of Watxon and wife v. Bailey et al. 1 Binn. 470., Kirk v. Dean, 2 Binn. 35O., and M'-Intire's Lessee v. Ward, 5 Binn. 296. In the first case the consent of the wife was not expressed in the acknowledgment, but a majority of the Court were of opinion pointedly, "that a literal strict adherence to the u very words of the act, was not essentially necessary in these " cases, but the substantial requisites by which the rights of " married women were intended to be guarded by the legis- " lature, should be pursued." 1 Binn. 475. In the second case there was no acknowledgment whatever by the feme. In the last case, the Chief Justice says, " No particular form a is necessary ; the words of the act need not be used, if " its directions are substantially complied with. This Court " would be departing from the line of its duty, if it were " studious to avoid conveyances by objections founded " merely upon form." 5 Binney 301. I shall content myself with expressing my entire concurrence in these sentiments, upon principles of public convenience and the common safety. It cannot be doubted, that a woman's voluntary con- sent excludes all idea of coercion or compulsion. The same observations apply to the objections taken to the acknowledgment of the deed from Christian Brand and Feronica his wife, to Adam Shatter, as it pursues the same form. The wife here had a bare contingent right of dower, and I. 3 K 1814. SHALLER et al. v. BRAND. 442 CASES IN THE SUPREME COURT 1814. SMALLER et al. v BRAND. did not claim the lands in her own right. If the true mean- " ing of the act of 24th February 1770 be, that the form pointed out thereby extends to all cases of married women executing conveyances, (concerning which however I have heretofore expressed my sentiments to the contrary) and if a rigid pursuance of that form be absolutely necessary to bar the future claims of such women, I have no scruple in declaring that the acknowledgments of more than nineteen deeds out of twenty, which I have met with since the pas- sing of that law, would be found miserably defective. Let any one examine his title papers to lands, and pronounce on the correctness of my remarks. I need not depict the har- vest of law suits, which would grow out of the establish- ment of the principle contended for on the part of the plain- tiffs in error. It has been objected that Anne Dillebaugh the widow of Valentine Dtllebaugh deceased, has not released her dower in these lands. The reasoning of the President upon this point is satisfactory to my mind. Her surviving her husband only appeared by a written memorandum taken by Mr. Elder one of the counsel of the defendant in error, and the same paper shews, that she actually executed a release. The whole memorandum like the confession of a party must be taken into consideration, as well what operates favourably as adversely to him. The paper therefore which creates the objection removes it fully. As to interest, it is the natural consequence of the obliga- tion after it became due by its condition, unless it is other- wise specially provided for. Such provision is inferred from these terms. " December term 1800 judgment, but no exe- " cution shall issue, until the title of the land for which the " bond was given, shall be perfected by the plaintiff." But the terms here go to the execution only. I cannot see how it supersedes the payment of interest thereafter growing due, nor can I perceive on what reasonable ground the plaintiffs in error could avail themselves of an exemption from interest. They and their ancestor quietly held the undisturbed possession of the lands since 1783, and receiv- ed the profits j and it does not appear, that they lost any opportunity of making an advantageous sale of the lands, or that any r. ey lay dead in their hands, which had been OF PENNSYLVANIA. 443 SHALLEU etal. v. BRAND. bona Jide appropriated to discharge the bond. Sugden's 1814. Law of Vendors 320. The only question which remains to be considered, is the propriety of admitting the will of Valentine Dillebaugh in evidence, under the facts stated in the bill of exceptions, to which we are confined. [His honour then detailed those facts.] No evidence was previously given how the posses- sion had gone of the land, or how long the papers which had been received had been in the hands of the counsel of Brand. The will wears the appearance of originalness, but no account was given where it was found, or in what man- ner it came into the hands of Brand's counsel immediately before the trial. It is perfectly obvious, that if the general rule of evidence is to be dispensed with on account of an instrument coming out of the hands of the adversary, such possession should be unequivocally proved, which is far from being the case in the present instance. It cannot be presumed, that an original will goes with the title papers into the hands of a purchaser. It is the duty of the devisees or executors to have it filed in a public office, and then proved. The modern law of England is said in some cases to be, that if the party to whom notice has been given to produce an instrument, produces it accordingly, the other party is en- titled to read it without further evidence. Peak in his Law of Evidence, page 109, remarks, that against the party to it, there seems to be no possible objection to this rule, for he must know whether he ever executed such an instrument or not, and the plaintiff not knowing who were the sub- scribing witnesses, cannot be prepared to prove the execu- tion. In one case this rule was extended to third persons, into whose hands an indenture was delivered ; but this de- cision has been doubted by very high authority. The case was much questioned at the time, and has since been over- ruled. It is plain that this will was not the act of Shaller. I am not aware upon the most diligent search, of any English case before the American revolution, which de- cides on the present subject of enquiry, nor of any particu- lar instances, wherein the doctrine has been examined within this state. We are therefore obliged to recur to the general principles of the law of evidence, and the analogy of other 444 1814. SHALLER etal. v. BRAND. decisions, as applicable to this cause under all its circum- stances. It will be admitted that the technical rule of requir- ing instrumental witnesses to prove their attestations, is founded on sound policy, though it may subject the parties to inconvenience. The ground of relaxation is, that the parties not knowing the names of the witnesses, cannot possibly be prepared to produce them at the moment of trial. But here, this will, if delivered over by the vendees to the vendor, was known to his counsel in January 1 808 ; and the recitals in no less than three of the deeds, specifying that the children claimed under the will, they would natu- rally be led to examine such will, which if not proved and remaining of record at Lancaster, might be established by the subscribing witnesses. The ground for relaxing the rule, if it held here as it is said to do in England, must fail the defendant in error under the circumstances of the case. But the Court, after having permitted the will to be read to the jury under all the circumstances which have been given in evidence, tell them that proof of the execution could be dispensed with only on the ground, that it had ac- companied the possession of the land for more than thirty years; that this was a fact for the jury to determine upon ; and if it had not gone with the possession during that period, they should not pay attention to it. This is placing the will upon the same footing as an ancient deed, and the Supreme Court of New Tork in Jackson v. Blanshan, 3 Johns. 292, have so decided. But the proofs of continual possession should have preceded the shewing of the will in evidence. It was so done in that case, and Kent Chief Justice re- marks, that it is the accompanying possession alone, which establishes the presumption of authenticity in an ancient deed. Where presumption fails, the presumption in its fa- vour fails also. It appeared then that one of the subscribing witnesses was dead, another was non compos, and the third lived at Poughkeepsle, and no reason was shewn why he was not produced. The omission was called a fatal negligence on the part of the plaintiff. The will was proved in Ulster county shortly after the testator's death. A paper cannot be read, because it is dated back thirty or forty years, or be- cause it carries with it the appearance of time. I know of no case in the English, books, which goes the OF PENNSYLVANIA. 445 length of Jackson v. Blanshan, nor has any such instance occurred in this state. No account whatever was given of this paper. I can see a material difference in a change of possession following the alienation of lands, and continuing for thirty years and upwards, and children claiming by will of their father, succeeding to his estate upon his death. Taking the fact for granted which is stated in the conveyances from Valentine and Christian Dillebaugh, and from Tost Brand and Catharine his wife, that the two former and the said Catharine were the children of the supposed testator, and came into possession of the lands (the subject of contro- versy) upon the death of their father, we cannot infer from thence that they came in under the will of their father ; for their possession may be equally referrible to a claim by de- scent, and would be equivocal in this particular. The charge of the Court was incorrect in stating, that if Valentine Dil- lebaugh had died intestate, his estate would have descend- ed to his two sons and daughter, as under the will in equal proportions; because the laws of descent in 1778 gave to the eldest son two shares. The question upon this bill of exceptions is not, whether the children would be barred by their conveyances, but whether legal evidence of this will was given, as part of the chain of title previous to the same being shewn to the jury. I have no hesitation in saying that the vendor had a good title to the lands, and would be entitled to the consi- deration money on making the proper proofs. But it is of the utmost importance, that the rules of evidence should be adhered to, and thinking as I do, that this will went to the jury without the requisite proof in the first instance, I am constrained on that ground alone, without the slightest re- ference to the merits of the case, to declare my opinion that the judgment of the Court of Common Pleas should be re- versed, and a new trial be awarded. BRACKENRIDGE J. We say of ore sometimes, that it is good, but that it requires a great deal of digging for it. So in this argument we have a great deal of trouble to get at the facts of the case. This is owing to the late and novel manner in which bills of exceptions are taken, and brought 1814. SHALLER etal. v. BRAND* 446 CASES IN THE SUPREME COURT 1814. SMALLER etal. v. BRAND. before the court. There is no statement of the facts in evi- " dence introductory to the exceptions, and upon which they arise. They are to be collected from the docket entries, and the notes of the judge on the trial, containing the whole evi- dence, out of which we are left to collect what may lead to the exceptions. It is looking for a needle in a bundle of hay. What will become of the records, loaded with such husks, instead of the kernel and substance of testimony ? Will the notes of the judge become a part of the record, and be evidence to a jury in another cause ? But laying considerations of this kind out of the ques- tion, I come to consider what I can collect to be the ground of exception here. I will pass over what does not seem to have been made a ground of exception, viz. the want of a substratum or foundation of the whole proceedings ; the judgment opened so far as to let in a trial, or a scire facias on the judgment. A venire without this has no bottom. I take up the exception as to the acknowledgment of the dted. Had it been a new case, I would have taken one of the ex- tremes, either that a certificate of the acknowledgment as evidence need not specify more than that it was acknow- ledged, or that it should pursue the words of the act of as- sembly in form as well as substance. For between these two, there will be much room for litigation as to what shall be considered substance* " Iliacos tntra muros peccatur et extra." But take the rule to be that the substance shall suffice, I admit the substance to be here, and the acknowledgment to be good. It will not be understood that I approve of the decision in Watson v. Bailey. It was contrary to my judgment. I did not sit in that case, but I heard one of the two judges that decided it, Judge Smith^ then in a low state of health, say, that he acquiesced only under the distinction, that it was to be confined to a case of the feme covert's lands, which she held in her own right before marriage ; and I take it that Judge Teatestook it with the same distinction. But I thought that such a distinction could not avail, and that it would be overruled when it came in question. In a subsequent case such distinction was ruled not to exist. In consideration of a communis error > if it was one, and that estates were holden OF PENNSYLVANIA. where certificates of acknowledgment fell short of a recital of the words of the act of assembly, which I take to have ' been directory to the officer, I would have held it good. I would have thought that a certificate that the writing had been acknowledged by the feme covert in due form of law, as was the case there, or according to the act of assembly in that case made and provided, was sufficient. I would have applied the maxim, omnia rite et solemniter acta prcesumun- tur. The officer is presumed to obey his instructions, and to do his duty. As to the admission of the will in evidence, I am per- fectly satisfied that it was correct, being on the footing of an old deed, that had come with the possession thirty years ; and that it had come with the possession thirty years was decided by the jury, for it was on finding that fact, that they were directed to consider it as evidence.. As to the release I am also of opinion with the judge below, and as to interest the same. I think him in all these matters abundantly correct, and affirm the judgment. Judgment affirmed. 44<7 1814. SHALLER et al. v. BRAND. 6b 447 6wh 78 EATON against The Commonwealth. IN ERROR. Lancaster, Saturday, May 28. THE plaintiff in error was convicted of murder of the if processgoes r to the sheriff and first degree, at a Court ot Oyer and Termmer for Tork county eommis- county in April 1813. f c 7 urt of Oyer and Ter- miner, and it be On the 8th of January 1813, a precept by the judges of not returned so the Common Pleas was directed to the sheriff and count commissioners, reciting the intention to hold an Over andP artofth , e J m ? r . r process that the Terminer on the 5th of April following, and commanding jurors have been them or any two of them, "to meet on a certain day,! " at least thirty days before the first Monday in April, at "the commissioners' office, and draw from the respective " wheels prepared for that purpose, in pursuance of several "acts of assembly, (naming them) a sufficient number of "sober and judicious persons for grand and petit jurors; 448 CASES IN THE SUPREME COURT 1814. EATON v. COMMON- WEALTH. " and that a copy of the several lists of jurors so drawn as " aforesaid, he the said sheriff should thereafter without " delay deliver to the prothonotary of the county of York, " that the same might be fixed up in his office, for the in- " spection of all concerned, and that the proper and neces- " sary venire might by him be made out and delivered to " him the said sheriff for the summoning and returning the "jurors aforesaid." Then followed the order to bring all prisoners &c. before the said judges, to notify all justices, constables, coroner &c. that they appear Sec., and to make public proclamation of the time of holding the said court. Annexed to this precept, on the return thereof, was a list attached, containing the names of all the justices of the peace, and also that of the coroner of the county, and this was all that appeared as to the return. The "venire to the sheriff on the 1st of March 1813, began, " in the name and by the authority of the Commonwealth *' of Pennsylvania, Walter Franklin, Hugh Glasgow, and " Jacob Hostetter, to the sheriff of York county, Greeting. "We command you &c." Annexed to this writ was a pannel of the grand jurors, and another of the petty jurors, and the customary return by the sheriff was indorsed on the writ. All the petty jurors had their places of abode annexed, but four wanted addi- tions. All the grand jurors had their places of abode annex- ed, but twenty-one wanted additions. The record being removed to this Court by writ of error, the following errors were assigned : 1. That the style of the process was not in the name of the Commonwealth, but of Walter Franklin and others the judges. 2. That it did not appear that there had been any legal process to summon the particular grand and petit jurors, because there had been no return shewing that those jurors had been drawn. 3. That additions were wanting to the names of several of the grand and petit jurors. 4. That the jury were drawn and selected by the sheriff and county commissioners, before any autho- rity had issued for that purpose. Cassatt and Kelly argued for the plaintiff in error. Stroman for the Commonwealth. OF PENNSYLVANIA. 449 TILGHMAN C. J. The plaintiff in error was indicted in Tork count) for the murder of Margaret Herman, and con-" victed and sentenced for murder of the first degree, at a Court of Oyer and Termmer and general jail delivery. Her counsel have assigned several errors, hut my opinion shall be confined to one. By the act of 4th April 1 807, it is enacted, that whenever any process, shall be issued for summoning a jury, the sheriff shall immediately on receiv- ing the same, give notice to the county commissioners, who or any two of whom shall with the sheriff proceed to draw out of the proper wheels, the names of the number of jury- men required, in the manner prescribed by the said act, and it shall be the duty of the sheriff to summon the several per- sons whose names are so drawn out, at least ten days pre- vious to the sitting of the Court, and to make return in what manner he has served such process. It appears by the record before us, that a precept was issued on the 8th of "January 1813, whereby command was given to the sheriff and the county commissioners, that they should proceed to draw the names of a sufficient number of persons to serve as grand and petit jurors at a Court of Oyer and Terminer and general jaii delivery, to be held on the first Monday of April next following, but it does not appear by any return of the sheriff or commissioners, that they ever proceeded to draw the jurors according to the command ol the writ. Afterwards, on the 1st of March 1813, a venire facias was issued, commanding the sheriff to summon twenty-four grand jurors and fifty jurors, whose names are mentioned in the writ. The return is indorsed, " executed as within I am commanded," and signed by the sheriff. It appears therefore on the whole record, that the jurors were summoned, but it does not appear that they were drawn. But unless they were drawn, the prothonotary was not authorized to issue a venire facias commanding that those particular persons should be summoned. If there had been but one precept, commanding the sheriff to cause to come before the judges at a certain day and place, a sufficient number of jurors &c., without entering into the details of his duty, and he had made a general return, that he had summoned them as he was commanded, with a pan- nel containing their names annexed, it might have been in- VOL. VI. 3 L 1814. EATON v. COMMON- WEALTH. 450 CASES IN THE SUPREME COURT 1814. tended, that in summoning them he had complied with all EATON legal requisites. But that is not the case here, for the v. sheriff is commanded to summon particular persons, and he COMMON- on ly returns that he has summoned those persons, but to WEALTH. tne otner p rec ept commanding him to draw the names of the jurors he has made no return ; so that it does not appear on this record either expressly or by necessary implication, that the persons who served as jurors were summoned according to law. I am therefore of opinion that the judgment should be reversed. YEATES J. and BRACKENRIDGE J. were of the same opinion. Judgment reversed. ~eT45 2 20 ====== 25 49 25 60i BAILEY and others against FAIRPLAY Lessee of e! 2 ?< 1X7 82 HO Lancaster, WATSON. 84 35 SffSf' IN ERROR. In an action for np^HIS was an action in the Common Pleas of Lancaster. mesne profits, _ _ . , . the record of the -- tor the mesne profits ot certain lands recovered by Wat- menrrs^ondir 1 '* 071 in an ejectment against John Foulplay, with notice to sive evidence that p. Bailey, John Mercer, John Messencope^ and Joseph Le in possession at Fevre. Messencops died, and this action was against the other three. brought, and also as to title during the whole time In the Court below the only evidence of the defendants' deuce of 'the By that it appeared that the declaration was served on all length of timethat .-...* the defendant was the defendants, that Montgomery and C. Smith appeared was tne record of the recovery in the ejectment. appeared that the declaration was served on all ...* dants, that Montgomery and C. Smith appeared generally, pleaded non cul, and entered into the common strike out the ru j e j an( j tna t the cause went to trial without filing a new name ot the casual , , . , ejector, and to in- declaration, or striking out the name or the casual ejector real defendant? from the original one. After the trial in the Circuit Court, may be amended an j a refusal by the Chief Justice to grant a new trial, the after judgment ; J . % and if the real defendants appealed to the Supreme Court, and judgment there entered against all.* Upon this evidence, and tril? anda^'eafs' P roofof tne annual value of the land, the jury, although there the judgment is as was evidence that Le Fevre one of the defendants had never hTmfas'iftheTs" 81 been in possession, gave a verdict for the value from the sue haj been cor- * Fid. 1 Bmney 470. OF PENNSYLVANIA. 451 time of the demise laid in the declaration* to the time of possession received by the plaintiff after the recovery in the ejectment, the president of the court below having charged on this part of the case as follows : " As to Joseph Le Fevre there is no proof of his ever hav- " ing been in possession of the land, or receiving any of the "profits therefrom, except that which is founded upon the 44 proceedings in the ejectment. 44 In ejectment, in order to entitle a plaintiff to obtain a 44 verdict, it is absolutely necessary that he should prove, " that the party from whom he claims the land, was in pos- " session of it at the cime the suit was commenced. " A judgment in ejectment, therefore, is conclusive evi- " dence, that the person against whom the recovery was had, " was in possession at the time of the service of the decla- " ration. " If then Joseph Le Fevre were a party defendant in the " ejectment brought by the present plaintiff, there would be " no difficuly in the proof of his having been in possession " of the property at the time the ejectment was commenced. 44 The suit was instituted by the lessee of the plaintiffs " against Richard Foulplaij, with notice to John Mercer y 44 Francis Bailey, John Messencope and Joseph Le Fevre. * 4 Mr. Montgomery and Mr. Smith appear, take defence, 41 and enter into the common rule, and plead not guilty, but 44 it does not appear that the name of the casual ejector was 44 struck out of the declaration, and the names of Mercer, <4 Messencope^ Bailey and Le Fevre substituted. Notuith- 4 ' standing this omission, I think it is manifest, from all the " proceedings, that the verdict was not against the casual 44 ejector, but against the persons for whom Mr. Smith and 44 Mr. Montgomery appeared, and those were the defendants 44 in the present suit. The question of title was discussed, 44 and the cause was tried on its merits. The principle just 4 ' laid down, therefore applies in my opinion to this case." To this charge the defendants tendered a bill of excep- tions. C. Smith and Montgomery for the plaintiffs in error. The tenant in ejectment is estopped, in an action for the mesne profits, from controverting the plaintiff's title ; but the judgment proves nothing as to the length of time the defepd- 1814. BAILEY etal. v. FAIRPLAT. 452 CASES IN THE SUPREME COURT 1814. ant was in possession, and therefore in all cases the length of ~his possession must he made out by other proof. This was the el at. unanimous resolution of the judges in Asltn v. Parkin (a) ; v. and it is clear that bo h the judge in his charge, and the FAIRPLAY. jury in their verdict, proceeded upon a different principle. The judge it is true, only says that the record is conclusive that the defendant was in possession at the time of the service of the declaration ; but as there was no evidence of possession but the record, and the question essentially involv- ed the duration of the possession, the judge misled the jury by not qualifying his opinion so as to make it applica- ble to the question. He gave them at best but a part of the law, and that part calculated to mislead. The jury were mis- led by it ; for without any evidence but the record, they gave the whole value from the date of the demise. The judge, acting up to his own principle, should have directed the jury, that as there was no evidence of the continuance of possession, they ought to find nominal damages only. But the record was not evidence at all. The issue tried was between the lessee and the casual ejector, and the judg- ment followed the issue. Of course it was between other parties. As to the appearance and defence, there were none for Le Fevre, and by the evidence in this cause, he never had been in possession for a moment. Bowie and Hopkins for the defendant in error. The law as delivered by the judge was strictly right, and he was not called upon to be more particular. But if he had been, he ought to have said, that the judgment was conclu- sive evidence of possession held by the defendant, from the time of the demise in the declaration. In Goodtitle v. Tombs (), Gould J. says it must be taken for granted af- ter a judgment in ejectment, that the defendant kept the plaintiff out from the time of the demise. Proof of the judg- ment in ejectment, and the writ of possession executed, was in his opinion sufficient to warrant a verdict for the mesne profits. The judgment, says Blackstone, is conclusive evi- dence against the defendant for all profits which have accru- ed since the date of the demise. 3 Bl. Comm. 205. The plaintiff was bound to prove him in possession from that (a) 2 Burr. 668. (6) 3 Wih. 121. OF PENNSYLVANIA. 453 time. 2 Cromp. Frac. 206. The case of Aslin v. Parkin is not inconsistent with this doctrine, because it may be un- derstood of a possession previous to the demise. It is suf- ficient for us, however, if there is a mere presumption of possession from the commencement of the suitj and certainly it ought to be taken for granted, that the man who entered tortuously, retained the possession from the commencement, till the delivery of possession to the plaintiff. The Court will intend every thing possible against him. As to the man- ner in which the possession was held among the defendants themselves, the plaintiff has nothing to do with it. That the record was evidence against all the defendants, is clear, because the appearance was general, M'-Cullough v. Guetner (a), and because there was an appeal by all, whereas the casual ejector is not competent to take that step. Cooper v. Dale (6), Orion v. Mee (c), Roe v. Doe (W). The declara- tion might have been amended upon motion, and may now be considered as amended. 3 Bl. Com. 407. The Court will overlook the exception. Rex v. Landaff ' (e). Reply. Goodtitle v. Tombs was the case of an actual ous- ter by one tenant in common of another, and the only question was whether an action of trespass for the mesne profits would lie in such a case. As to Blackstone^ he is evi- dently speaking of the title being conclusively proved from the date of the demise, not the possession. TILGHMAN C. J. The exception to the charge of the pre- sident is that the jury were misled by it, because they were not told, that the record was not evidence of the length of time for which the defendants were in possession, which ought to have been proved by other evidence. It has also been contended, that the record was not evidence against the defendants at all, because the issue appears to have been joined between the plaintiffs, and John Foulplay the casual ejector. I think there is nothing in the last objection, because it appears that notice of the ejectment was served on all the defendants, that they all appeared and entered into the com- mon rule, that they all appealed frum the Circuit Court to the 1814. () 1 Binn. 214. (6) 1 Stra. 532. (c) Barnes' Notes 188. (e presumed in the first instance, that the landlord WHS entitled to the possession, because the jury found so. But now that the first proceedings are reversed by the Court of Common Pleas, the presumption is in favour of the tenant. Had not the Court considered this as a case sui generis^ the tenant would never have lost the posses- sion, Decause the certiorari would have protected him. By allowing the writ of error no greater force than the certio- rari, we place both parties on an equal footing, and of course do equal justice to both. I am therefore of opinion that the motion of the plaintiff in error should not be granted. Motion denied. 462 CASES IN THE SUPREME COURT 1814. E N s L i N against B o w M A N ct al. Executors of 6b - - Sunbury, S T E W A R T . esV Saturday, I2sr June 18. IN ERROR. _!3sO The commis- sioners under the rriHIS was an action of ejectment in the Common Pleas compensating act of 4th jtpnli799, * ot Luzeme county, by the executors ot Stewart against mfntaoTisth" EnsUri, in which the jury found the following special verdict. March 1800, and 6th JprillSWZ had no jurisdiction " The jury find and return the following special verdict : rfl h c3ESS? That on the 16th January 1800, Samuel Jameg ne( l commissioners, duly appointed for putting to hold against " in execution an act of the general assembly of the Corn- claimant, except " monwealth of Pennsylvania, entitled " An act for offering tied and'resident " compensation to the Pennsylvania claimants of certain lands there before the " within the seventeen townships in the county of Luzerne, row, or one claim- "and for other purposes therein mentioned," passed the 4th of April 1799, and the supplement to the act passed "the 15th day of March 1800, and the further supplement " thereto passed the 6th day of April 1802, do certify, that " James Stewart is the owner as a Connecticut claimant OF PENNSYLVANIA. 463 "of one hundred and sixty acres of land in the township of " Newport, one of the beforementioned seventeen townships, "being Nos. 46 and 48, in the second division of the said " township, which numbers 46 and 48, were severally occu- " pied by a Connecticut claimant and actual settler there, be- "Jore the time of the decree of Trenton, and were particularly "assigned to such actual settler, prior to the said decree, "agreeably to the regulations then in force among the set- " tlt-rs. The said land (a draught of survey whereof is here- " unto annexed) is included in the application of Samuel " Jameson and Jeremiah Hagerman, under the provision ot " the act aforesaid, of whicn applications an official transcript 41 has been transmitted to us, from the land office of this " Commonwealth of Pennsylvania, No. 52, 663, of the said " tracts ; fifty acres part thereof is of the third class, the resi- "due thereof of the fourth class. January 16th 1804. Sign- " ed Thomas Cooper, and John M. Taylor." " We further find that the aforesaid survey was returned into the office the 1 1th July 1808, and that in pursuance of said survey and certificate, and the last will and testament of the said James Stewart de-ceased, a patent issued from the Commonwealth of Pennsylvania for the said lots, Nos. 46 and 48 of the second division of Newport township, on the 13th July 1808, to Ebenezer Bowman and Joseph Jameson executors of the said James Stewart, deceased, in trust for the uses mentioned in the said last will of the said James Stewart. And we further find that the said John Hagerman made application for the said lot No. 48, to the commis- sioners appointed under the law of 1787, commonly called the confirming law ; and that in the said year 1787, the town lot of the town of Newport was surveyed to the said John Hagerman by William Montgomery, and out lines ot the said town, and cross lines of the said township, were run in the summer of the same year, and no person was settled then on the said lot, run for the said John Hagerman, and but few in the township." " And we do further find, that a warrant issued from the Commonwealth of Pennsylvania to Sarah Hollenback, on the 10th day of May 1792, for four hundred acres of land, to include a small bog meadow on one of the head branches of Forge Creek^ that empties into the east side of the Sus- 1814. ENSLIN v. BOWMAN etal. 464 CASES IN THE SUPREME COURT 1814. EWSLIN V. BOWMAN etal. quehanna near tht Nanttcoke falls on the said river. That in "" pursuance of said warrant, on the 9th day of December 1 793, four hundred forty one acres and one quarter and allowance &c., were -surveyed on the head of the Forge branch of Nanttcoke, and returned on said warrant into the land office of Pennsylvania. That the purchase money was paid on the 5th June 1792. That in 1792, the warrantee aforesaid be- gun an- improvement, raised ore, and exercised other acts of ownership on said premises, and in the year 1794, built a dwelling house on the land, and in the spring of 1795, placed a tenant in the house so built the preceding season, who con- tinued to reside therein and thereon, clearing and cultivat- ing and improving said land, until the spring of 1798, when George Enalin, the above named defendant, came into the possession of the said house and land by virtue of a deed poll from the said Sarah Hollenback the aforesaid warrantee, to him the said George Enslin, dated February 24th, 1798.'* " And we do further find, that a patent issued in pursu- ance of the said warrant, survey arid deed poll, to the said George Enshn, on the llth day of June 1798, and that the said George Enshn has continued to reside on the premises in dispute, from the spring of 1798, to the time of finding this verdict. That he the said Geirge had planted an orchard, built a new house and barn, and cleared thirty or forty acres before the present ejectment was brought." u And we do further find, that the first actual settlement made on the lots and land for which the ejectment was brought, was made under the warrant aforesaid to the said Sarah Hollenback, and that no person or persons ever im- proved settled or lived on either of the said lots No. 46 and 48, except the above named defendant, and those under whom he makes title." " And we further find, that John Hagerman, Jeremiah Hagerman, Samuel Jameson and James Stervar^ aforesaid, or either of them, never improved, nor lived, or settled on either of the said lots No. 46 and 48, nor lived in Newport township aforesaid ; and we further find that the land in dis- "pute for which this ejectment is brought is comprised in the plaintiffs' survey certificate and patent aforesaid, and also in the aforesaid warrant, survey and patent to the defendant as aforesaid. And we further find that the commissioners un- OF PENNSYLVANIA. 465 der the confirming law of 1787, opened their office some time in the summer of the same year, and were driven off and left the county about the 1st October in said year." " Upon the above finding, if the Court shall be of opinion the plaintiffs by law are entitled to recover, then we find for the plaintiffs, six cents damages and six cents costs ; but if the Court shall be of opinion that upon the whole finding, the plaintiffs by law ought not to recover, then we find in favour of the defendant." Upon this verdict judgment was rendered for the plain- tiffs below, and the defendant took a writ of error. The case was elaborately argued in this Court, by Dun- can for the plaintiff in error, and by Watts for the defend- ants in error. TILGHMAN C. J. It appears by the special verdict in this case, that George Enslin, the defendant below, claimed under a warrant to Sarah Hollenback, dated 10th May 1792, for 400 acres of land, a survey in pursuance of the said warrant on the 9th December 1793, regularly returned to the land office, and a patent on the 1 Ifajfune 1 798, the purchase money hav- ing been paid on the 5th June 1 792. It appears also that the first and the only actual settlement made on the land in dis- pute, was by the defendant, or those under whom he claims. He had been long in possession previous to the bringing of this ejectment, had cleared thirty or forty acres, planted an orchard, and built a dwelling-house and barn. The plain- tiffs derived their title from a patent dated 30th July 1808, founded on a certificate from Thomas Cooper and John M. Taylor, commissioners for carrying into execution the pro- visions of the " act for offering compensation to the Penn- 41 sylvania claimants of certain lands within the seventeen (l townships in the county of Luzerne, and for other pur- u poses therein mentioned," passed the 4th April 1799, and the supplementary acts passed the 15th March 180O, and the 6th April 1802. This certificate bears date the 16th January 1 804, and sets forth that the land was occupied by a Connecticut claimant, and actual settler there, before the time of the decree of Trenton. This assertion seems at first to be in direct opposition to the finding of the jury ; but is rendered consistent with it by the explanation afforded by the plain- VOL. VI. 3 N 1814. ENSLIN v. BOWMAN etal. 466 CASES IN THE SUPREME COURT 1814. ENSLIN v. BOWMAN et al. tiff's counsel. They suppose that by the certificate of the " commissioners it is only meant, that the land was occupied by one who was an actual settler, according to the rules and regulations of the Susquehanna Company. Now, accord- ing to those rules, a man may be an actual settler without having ever been in the state of Pennsylvania. The Susque- hanna Company sold by townships, some of which contained 23,000 acres. The purchaser was to place twenty able bo- died men on the township, which being done, the condition of settlement was complied with, and the title of the pur- chaser became perfect. In order to determine whether the commissioners were right in their construction of the laws under which they acted, it will be necessary to consider not only the laws themselves, but certain well known historical facts which led to the making of them. Soon after the purchase made by the late proprietaries of Pennsylvania of the Indians, in the month of November 1768, a number of men from Connecticut took possession of a tract of country about Wyoming, on the north branch of Susque- hanna, claiming under a deed from the Indians to certain persons associated under the name of the Susquehanna Com- pany. These persons claimed adversely to the proprietaries of Pennsylvania^ and asserted that the country included in their deed was within the bounds of the charter of Connec- ticut. This unfortunate controversy was attended with riot, disorder and bloodshed, which continued until the com- mencement ol the revolutionary war, when the Congress of the United States, alarmed at the consequences which might result from a dispute of so serious a nature between two powerful states, recommended that all acts of force should be abstained from, and each person should remain in pos- session of the land occupied by him, until a proper season should arise for determining the matter on principles of jus- tice. This recommendation was complied with. The Connec- ticut settlers were the most numerous, and held possession during the war, in the course of which they suffered great hardships and lost many lives, being on a remote frontier much exposed to the attacks of the British and the Indians. In the month of December 1782, the cause between Penn- sylvania and Connecticut^ having been heard by a court of OF PENNSYLVANIA.. 467 commissioners appointed under the articles of confedera- tion, was finally decided in favour of Pennsylvania. From " this period the courts of Pennsylvania must consider the title of Connecticut of no validity, either in law or equity, except as it may have since been confirmed by our own acts of assembly. Soon after the decree of Trenton, the Connecticut settlers seem to have been proceeded against with undue severity. This produced an act of assembly for restoring the posses- sion from which they had been forcibly removed. The council of censors too made a remonstrance in their favour in the year 1784. At length, on the 28th March 1787, an act of assembly, called the confirming' act, was passed, of which it will be necessary to take particular notice, as it is alluded to in the special verdict. The preamble of this act recites the decree of Trenton, and the settlement of a num- ber of the inhabitants of Connecticut on the disputed terri- tory prior to the said decree. It recites also that the inter- fering claims of the Pennsylvania and Connecticut men had occasioned much contention, expense and bloodshed ; and that the assembly were desirous of putting an end to these evils, by confirming such of the Connecticut claims as were acquired by actual settlers prior to the decree of Trenton. It is then enacted that " all the said rights or lots now ly- " ing within the county of Luzerne, which were occupied " or acquired by Connecticut claimants, who were actually "settlers there, at or before the termination of the claims of " the state of Connecticut, by the decree aforesaid, and " which rights or lots were particularly assigned to the said " settlers prior to the said decree, agreeably to the regula- " tions then in force among them, be and they are hereby " confirmed to them and their heirs and assigns." It is very clear, that the only persons intended to bt- relieved by this law, were persons actually settled in the county of Luzerne prior to the decree of Trenton ; and that the words " agreea- " bly to the regulations then in force among them" refer not to the actual settlement, but to tht assignment of particular rights or lots to particular settlers. By actual settlers \ve un- derstand persons residing on the land. It is a class of peo- ple always favoured by the late proprietaries, and by the state of Pennsylvania ; and it having been thought of impor- 18U. ENSLIN v. BOWMAN etal. 468 CASES IN THE SUPREME COURT 1814. ENSLIN v. BOWMAN ctal. tance to define the term settlement precisely, it was enacted ' by the act of SOth December 1 786, (passed by the very same persons who made the confirming law) that by a settlement should be understood " an actual, personal, resident settle- " ment, with a muni fest intention of making it a place of abode* 44 and the means of supporting a family, and continued from 44 time to time, unless interrupted by the enemy, or by go- 44 ing into the military service of this country during the 44 war." That persons of this description should be confirm- ed in their claims, there was some reason, because they had entered into possession while the right was undecided; they had all suffered, and many bled in defence of the country. But it will be difficult to assign any motive, either of jus- tice or policy, which should have induced the legislature to take away the rights of their own citizens, in order to make way for persons who had rendered the state no service, but on the contrary had been the authors of much disturbance, expense and vexation. The confirming law at the same time made compensation to the Pennsylvania claimants, who had acquired titles before its passage, by a grant of lands in other parts of the stite. This law which was made with such beneficent intentions, did not prove satisfactory to either party. Its execution was opposed even in the county of Luzerne* The commissioners were interrupted before they had made much progress in their work. In consequence of this, their powers were sus- pended by the act of 29th March 1788, in which it is said, 44 that the commissioners had been interrupted in their pro- 44 ceedingsby the combinations, threatenmgs, and outrageous 44 violence of certain lawless people in the said county of 44 Luzerne, and obliged to fly for the preservation of their "lives.** At length the confirming law was repealed in terms of strong reprobation by the act of 1st April 179O, by which it was declared, that the repealed act was 4t unconsti- 44 tutional and of the most dangerous consequence,'* The opinion thus expressed of its unconstitutionality, was con- firmed by the Circuit Court of the United States, in the case of Vanhorne's Lessee v. Dorrance. That cause was removed to the Supreme Court of the United States by writ of error, where it was terminated by a nonpros suffered by the plain- tiff in error. It is unnecessary to enter now into the consti- OF PENNSYLVANIA. 469 rational question, because the commissioners under the con- firming law were interrupted before they had completed any"" business, and the law itself was annulled by the same autho- rity from which it derived its existence. From the 29th of March 1788 the Connecticut claimants were neglected by the legislature until the 4th of April 1799, when the act was passed under which the certificate of the commissioners was issued, on which the plaintiffs found their title. It was the object of the act to induce the Penn- sylvania claimants to release their rights for a moderate compensation in money, in order to quiet the country by confirming the title of such Connecticut claimants in the seventeen townships of Luzerne county, " as were actually " settlers there at or before the time of the decree of Tren- u ton, and whose rights or lots had been particularly assigned " to them prior to the said decree, agreeably to the regula- tions then in force among them," just in the words of the confirming law. In order then to give the commissioners jurisdiction, it was necessary, that the person in whose fa- vour the certificate was to be issued, or those under whom he claimed, should have been actually settled within the seven- teen townships prior to the decree of Trenton. Whether there should not also have been d settlement on each tract included in the certificate, 1 give no opinion at present, be- cause the special verdict finds no settlement of any kind within the seventeen townships. But it is contended that the certificate of the commis- sioners is conclusive evidence of the truth of the facts as- serted in it. Respecting the title under Connecticut, it may perhaps be conclusive between Connecticut claimants, be- cause the commissioners are authorized to decide between them, although if either party chooses, he may withdraw the cause previous to their decision, and carry it to the court of Common Pleas. But if the commissioners are permitted to make the decision, the certificate of their clerk is declared by the law to be sufficient evidence to obtain a patent from the land office. Touching the rights of Pennsylvania claim- ants the commissioners had no power to decide. If they diffrr among themselves the board of property decides in the first instance, with liberty to the party against whom the decision is made, to bring an ejectment for the purpose 1814. ENSLIN r. BO\VMAK et al. CASES IN THE SUPREME COURT 1814. ENSLIN i>. BOWMAN etal. of having the cause re-heard in the courts of common law. The Pennsylvania claimant never appears before the com- missioners. It would be unjust therefore, that he should be concluded by their certificate, nor is there any thing in the law which favours such injustice. It is no where said that he shall be concluded. It is to be remarked, that the act of 4th April 1799 left it optional with the Pennsylvania claimant to release or not, and unless he released, the commissioners had no power to grant a certificate in favour of a Connecticut claimant. But the act of 6th April 1802 went farther, and authorized the commissioners to certify not merely such parts of the tracts of land claimed under the title of the Susquehanna company as should be released by the Pennsylvania claimant, but " the whole of each tract claimed by a Connecticut claimant, u who should establish his title thereto ;n the manner pre- " scribed by the act of 4th April '17 '99," whether released to the Commonwealth by the Pennsylvania claimant or not. The act then goes on to provide, that such Pennsylvania claim- ant as should not release to the Commonwealth under the provisions of the said act of 4th April 1 799, on or before the 1st of August 1802, should be disabled from recovering the land in any action against the Connecticut claimant in whose favour a certificate had been issued, but might insti- tute an action against the Commonwealth in which he should be entitled to recover a just compensation for his land. Hitherto we see that no Connecticut claimant was enti- tled to a certificate, unless he derived title through a person who was a settler prior to the decree of Trenton ; nor could any Pennsylvania claimant release to the Commonwealth and demand compensation, unless his title accrued prior to the said decree. But by the act of 9th April 1807, all Pennsylvania claimants were let in who had acquired title prior to the 25th of March 1787, (the date of the confirm- ing law) and by the same law it is enacted, " that the com- " missioners in examining the claims of the Connecticut "claimants, shall not require the same lands to have been " occupied prior to the decree of Trenton" This last provi- sion may produce consequences more important than per- haps were foreseen at the time it was made, although it cannot affect the present certificate which was issued long OF PENNSYLVANIA. 471 before its date. But what is there in any of these laws to affect the title of the defendant, which accrued subsequent to the 28th of March 1787, and who consequently is not entitled to an action against the Commonwealth for the recovery of compensation ? It is contended that his right is extinguished by the act of 6th April 1802. But this ap- pears to me to be a position not to be supported, because the words of that act only embrace the case of Pennsylvania claimants, who shall refuse or neglect to release to the Com- monwealth under the provisions of the act o/"4th April 1799. Now it is clear that no Pennsylvanian can release under the provisions of that act, whose title accrued subsequent to the 28th of March 1787; therefore no such titles are within the meaning of the act of 6th April 1802. Nothing less than the most pointed, unequivocal expressions would ever convince me, that it was the intent of the legislature to take any man's property without a reasonable compensation ; because not only would it be an actof injustice, but a violation of the constitution, which has prescribed limits to the legislative power. The legislature are the judges of those great occa- sions when it may be expedient to break in upon the rights of private property making just compensation. But to take property without compensation is beyond their power. Such I take to be the decided opinion throughout the United States; and I am confident that the legislature of Pennsylvania will never act in contradiction to it. Upon the whole of this case then it appears, 1st, that the defendant has a perfect title by warrant, survey and patent, from the state of Pennsylva- nia; and 2d, that the title remains unimpaired by any act of assembly. I am therefore of opinion that the judg- ment should be reversed, and judgment entered on the spe- cial verdict for the plaintiff in error. If as the plaintiff's counsel seem to apprehend, this deci- sion should produce results distressing to the inhabitants of the seventeen townships, I shall be sorry for it. I have always wished for their peace, and have done what I could to promote it, by releasing all my interest in lands in those townships. But to a judge it is only permitted to interpret the law honestly and impartially. If when interpreted, it is attended with inconvenience, it is for the higher powers to provide a remedy. 1814. ENSLIN v. BOWMAN etal. 472 CASES IN THE SUPREME COURT 1814. E.NSL1N U. BOWMAN etal. YEATES J. The tenth section of the ninth article of the "constitution of this Commonwealth declares, that "no man's " property shall be taken or applied to public use, without " the consent of his representatives, and without just com- " pensation being made." In the exposition of laws we can- not suppose that the legislature have been unmindful of this wise provision. Cases may undoubtedly occur, wherein however sacred the rights of property may be deemed, it would be necessary for the common welfare, that they should bend to the public interests in matters of great na- tional concern. The decree at Trenton on the 30th of December 1782, grounded on the provisions of the old confederation, termi- nated the dispute between Pennsylvania and Connecticut as to the territory claimed by the latter ; but the commission- ers recommended the case of actual settlers, under the title of the Susquehanna Company, to the consideration of the Pennsylvania legislature j and the justiqe and equity of the claims of those settlers, was also strongly reported by the council of censors in 1784. Hence arose the confirming act of 28th March 1787, upon which the defendants in error confidently rely, as plighting the faith of this government to the Connecticut claimants. To this it is answered, that this act has been solemnly determined in April 1795, in Vanhorne's Lessee v. Dorrance, 2 Dull. 3O4, 32O, to be un- constitutional and void, that it was invalid from the begin- ning, had no life or operation, and was precisely in the same state, as if it had not been made. It was suspended by the act of 29th March 1788, and finally repealed by the law passed on the 1st of April 1790. If the law of March 1787 was in full force, I should adopt the construction of it, as contended for by the plain- tiffs' counsel, that the actual settlers whose claims were intended to be confirmed thereby, were such persons only, as had acquired a title by actual settlement, prior to the determination of the dispute between the two states, as defined by our law of the 30th December 1786, and enacted by the same legislature. I take this to be the true meaning of the expressions made use of, most conformable to the reason and policy of the act, and the spirit which dictated it. The object of the lawgivers was not to recognize the OF PENNSYLVANIA. validity of the titles held under the Susquehanna Company, but to quiet the possessions of those who were the real " occupants of lands under that claim. The certificate signed by the commissioners on the 16th of January 1804, brings the case of James Stewart the defendant's testator, within the words of the different laws of 4th April 1799, 15th March 180O, and of 6th April 1802. But it is found by the special verdict, that neither he nor any one under whom he claimed, ever improved, lived or settled upon any part of the land in question, and that the first actual settlement made thereon, was under the warrant granted to Sarah Hollenback* by the Commonwealth of Pennsylvania on the lOth of May 1792. This introduces the question, whether the certificate of the commissioners is conclusive evidence of the facts stated therein, against one claiming the same lands under a Penn- sylvania title ? It is admitted, that no express provision is to be found in any law ascribing to these certificates such conclusive character ; but it has been urged on the part of the defen- dants, that it necessarily arises from the act of 6th April 18O2. To this I answer that the duties of the commission- ers are specially pointed out by the act of 4th April 1799. They decide merely between the Connecticut claimants, who by the eleventh section are allowed an appeal before they should make their decision. Such appeal is not given to per- sons claiming under Pennsylvania titles ; they are not even heard before the commissioners. How then can they be bound finally by acts, to which they are neither parties nor privies, which it was not in their power to contest ? This would be rank injustice. I fully agree, that the certificates given by judicial officers, on whom arduous duties have been imposed, are prima facie evidence, and may be admit- ted in suits against Pennsylvania claimants. They should be treated with due respect, but are open to proof by per- sons entitled to lands under Pennsylvania rights, although conclusive between claimants unner the Connecticut title, if unappealed from. The same distinction has uniformly pre- vailed, when the certificates of the Virginia commissioners have been admitted to the jury in contests between persons claiming lands under either state. VOL. VI. 3 O 437 1814. ENSLIN v. BOWMAN etal. 474 CASES IN THE SUPREME COURT 1814. The plaintiff in error here claims under a regular warrant from Pennsylvania, dated 10th May 1792, upon which the purchase money has been paid, a survey made on the 9th of December 1793, and a patent granted to him on the 24th of February 1 798. He and those under whom he claims, have made the first actual settlement on the lands in question, first erected a cabin, planted an orchard, then built a new house and barn, cleared between thirty and forty acres of land, and have been in the constant possession of the pre- mises. Having acquired a title subsequent to 28th March 1787, he can obtain no compensation under the provisions of the act of 9th April 18O7, if he is doomed to be a sacri- fice to the public tranquillity. Why then is he to be'dispos- sessed of his right? What law has he offended? It is not correct to assert, that this Commonwealth by any legislative act, acknowledged the right of Connecticut or of the Sus- quehanna Company, to grant lands within the charter boun- dary of Pennsylvania. I can discover no law wherein the validity of such titles has been recognized. The intention of the legislature in enacting the law of 28th March 1787, is fully disclosed in its preamble. It re- cites that, *' whereas before the determination of the claim of " Connecticut^ a number of its inhabitants with their asso- " ciates, settled upon and improved divers tracts of land " lying on and near the north east branch of the river Sus- " quehanna, and the waters thereof, and now within the ** county of Luzerne ; and whereas parts of the same lands tc have been claimed under titles derived from the late pro- " prietaries of Pennsylvania, and those interfering claims " have occasioned much contention, expense, and blood- " shed, and this assembly being desirous of putting an end " to those evils by confirming such of the Connecticut claims " as were acquired by actual settlers prior to the determi- *' nation of the said dispute, agreeably to a petition of a "number of the said settlers, and by granting a just com- " pensation to the Pennsylvania claimants, &c." It then proceeds to make provision for these professed objects of restoring peace and good order, and of preventing the effu- sion of human blood. The proceedings of the commissioners having been interrupted at Wilkesbarre ^December 1787, it operation was suspended in March 1788, and finally OF PENNSYLVANIA. 475 repealed in terms of strong condemnation by an act passed on the 1st o! April 179O, u whereby all proceedings under " "the act of 28th March 1787 were declared void, and all " titles and claims under it were revested in the former " owners." Within a period somewhat exceeding two years from the time of the repeal of the first act of 1787, when the tide of public opinion manifested by a strong act of the legisla- ture, had evidently begun to run in a different direction, the warrant was taken out by Sarah Hollenback, and an actual settlement took place on these lands. N > man, how- ever prudent, could foresee what was afterwards done by the laws of 4th April 1799, 15th March 180O, 6th April 1802, 4th April 1805, and 9th April 1807. The lands in the seventeen townships in Luzerne county had not been exclu- sively set out and reserved for the Connecticut claimants, and the law which had confirmed the occupation of certain of them under particular modifications, had been repealed* I see no ground to brand any person with the character of a speculator, or of having acted in a manner unbecoming a good citizen, who has taken out a warrant for vacant lands then not actually settled by Connecticut claimants ; nor can I discover any impropriety in such person appealing to the laws of his country for the protection of his possession, until he has received a full equivalent for his title thus acquired. Upon the whole matter I am of opinion, that the judg- ment of the Cou t of Common Pleas of Luzerne county be reversed, and that judgment for the plaintiff in error be rendered on this special verdict. BRACKENRIDGE J. It is not found by the special verdict, that the lot in question " -was occupied by a Connecticut " claimant and actual settler there before the time of the decree u of Trenton, and was particularly assigned to such actual " settler prior to the said decree agreeable to the regulations " then in force among the settlers" But it is certified by the commissioners duly appointed &c., under an act entitled &c., that it was so occupied &c. as in the certificate of the said commissioners specified. But can this certificate be travers- ed, or the truth of it called in question ? Not, I should take 1814. ENSLIN v. BOWMAN etal. 476 1814. KNSI.IN v. BOWMAN et al. CASES IN THE SUPREME COURT it as at present advised, by the Commonwealth, who has ap- " pointed these commissioners, uncl may be considered as bound by their proceedings. But can it be said that an indi- vidual, not a party to their proceedings, and who has an adverse claim or right, shall be bound f Shall not the truth of the case be shewn ? It may be considered in the nature of an inquisition of office on the part of the state and the Con- necticut claimant, but shall not affect third persons who claim a paramount or adverse interest. It is found by the special verdict, that the lot in question was surveyed in the summer of 1787, and u that no person " was settled then on the lot." Non constat, but that some one under whom the plaintiff claims had occupied and was settled on it before the decree of Trenton, and therefore the special verdict does not falsify the certificate, which cannot but be admitted to be prima facie evidence . Upon this point alone I find a difficulty in saying that the j udgment should be set aside ; for a temporary non occupance may have been ow- ing to the falling in the war, or other causes, and that pre- sumption of abandonment might be rebutted by showing the truth. As to the ground upon which the plaintiff has put the case, it is totally untenable ; at least the ground upon which his counsel has argued it is not to be sustained. He seems to consider the commissioners as having had a power to proceed in ihe case of a lot or a piece of ground, not occupied by a Connecticut claimant, or settled before the decree. Whereas it could not but have been the first object of their enquiry, in order to ascertain whether they had jurisdiction. A constructive occupancy or settlement was unknown to the laws or usages of Pennsylvania, and why should it be known in this case ? Nor could an actual occupancy and set- tlement be considered as attaching to more than to the usual extent of 3OO acres with the allowance &c. What was the foundation of the interposition of the legis- lature ? Not a grant from Connecticut under a pretended or alleged extent of charter. Not any till derived from a Susquehanna company under an alleged purchase from the Indians. It was a moral obligatioi , and I have always considered it a moral obligation, to relieve the mistaken and misled inhabitants, who had settled on these lands under an idea of right, and where the situation of things, and the nature of the case, furnished a ground of mistake, OF PENNSYLVANIA. 477 so that they were not to be considered absolutely in the light of voluntary trespasses, more especially as Indian hostili-" ties, incited by the general enemy with whom we were at War, were combatted by those very settlers at their out posts, where many of them fell, and at whose perils and by whose sufferings the interior of the state had been so much defend- ed. These were the considerations of the recommendation of the council of censors, the act of 1787, and all the suc- ceeding acts that have taken place on the subject ; to relieve the actual settlers and put them on the same footing with our actual settlers, in other parts of the state, who were pro- tected from office rights, and by a usage known to our laws, both as to the nature of the settlement and the extent of it. Such a thing as twenty settlers claiming six miles square, and allotting all within it to themselves or to others who might come after them, and to whom they might dispose of this territory, was never heard of, and it could not be within the meaning of the legislature. " Rules and regulations amongst u the settlers or Susquehanna company" "-here that word is used, could mean nothing more than the allotment of their portions, shares or half shares, the locus in quo of their set- tlements, the extent and boundaries, subjf ct still to our ideas of quantity to any settler, if the allotment should exceed. Constructive settling, or allotment to those who had never settled, was absurd, and would be countenancing a specula- tion that was inimical to actual settlements, and the occupan- cy of the country. At least occupancy and settlement under this idea, and in this way, was never meditated, or in the view of appointing commissioners with any powers whatever. Were it not that it is found by the special verdict, that no settlement had been made prior to the occupancy of the de- fendant, a venire de novo might be awarded with a view to give the plaintiff an opportunity to shew if he can, that ani occupancy of the lot in question did exist before the decree of Trenton, and that he has succeeded to that possession, as evidence of which I will admit the certificate, but not as the foundation of the claim. A settlement must be establish- ed. Having proved an original occupancy before the decree of Trenton, the certificate may be evidence of the right de- rived to him, as the mesne conveyances may be considered as having been delivered up to the commissioners ; and this 1814. ENSLIN v. BOWMAN et al. CASES IN THE SUPREME COURT 1814. ENSLIN v. BOWMAN etal. is what is meant I presume by the title deeds &c. delivered up. For what other papers would there be than these, the vouchers of transmission and the possession handed over, since there is no other kinds of deeds that could have been contemplated, no kind of grant being acknowledged under the charter of Connecticut, or Indian title to these lands, or the lot which is the object of the ejectment in this case. But it being found by the special verdict that no settle- ment had been at any time before the possession of the de- fendant, excludes the above considerations as to the award- ing a venire on the reversal of this judgment, and to which reversal I accede in this case. Judgment reversed. Sunbury, Saturday June 18. 6b 478 9s r 22 3 1 409 . 6 296 DRUM against the Lessee of SIMPSON. J * oo 11*7 IN ERROR. | 74 314 A trustee, who rTTiHJS was an ejectment commenced in April 1805, in the plaintiff in eject- -* Common Pleas of Northumberland, for a house and lot wh-ness 1S for e th^ d m tne town f Selirfs Grove, the title to which it was agreed defendant to shew was at one time in a certain George Glass. Glass made a that the real trust . . ,. , . . , , . is different from parol sale of the premises to Adam Speck, who in the year the^nveyanee 1 796 made a like sale to Charles Drum the defendant. On Declarations the 1st July 1799, Glass by order of Drum, and in conside- madeby the gran- . r^in i n- r> . i tor to the grantee, ration ol 2O dollars, conveyed to Simon Snyder, who on the tn r of h a e deed C of 13tn ^ ovem ^ er 18O4, in consideration of one dollar, convey- trust, but before ed to the lessor of the plaintiff in trust for Anthony Charles the grantee had ,. . . _ .. . . _ accepted it, are Seltn and Agnes Sean as joint-tenants in fee. evidence to alter or contradict the t 81 - The defence of Drum beinjr that he had an equitable es- Copy of a can- . , . t i i em celled bond in the tate in the premises, and that the conveyance irom Glass to r Sn y der and from Snyder to Simpson was really in trust to notice and refusal secure a small debt due from Drum to the estate of Anthony to produce the ,. L i i i-i original, good oelm, the plaintiff, after giving notice to the defendant to ^tte n r C s e conSnedP roduce the ori g in al which had been seen cancelled in his in the condition, hands, offered in evidence a copy of a bond dated 29th Au- shewing how the gust 1796, from the defendant to Frederick Antes^'m the 10 bC P enalt y of 3000/., by which the defendant, being about to marry Catharine the widow of Anthony Selin, bound himself OF PENNSYLVANIA. 479 to convey among other things the lot in dispute, in trust for her children by the said Anthony. This evidence was objected to by the defendant, and ad- mitted by the Court, who sealed a bill of exceptions. The defendant proved that he had expended a thousand dollars in building a house on the premises ; and that in a suit between the heirs of Seltn and himself, decided after this suit was brought, an award for 175/. had been made in his favour. He then offered to prove by the oath of Jere- miah Simpson, the lessor of the plaintiff, who was in Court willing to be examined, that the deed of the 13th November 1804, from Simon Snyder to him, u was drawn, and signed " by the said Simon, without the knowledge or consent of " the said Jeremiah; that he had no knowledge of the same, " or of the trust therein contained, until the said Simon Sny- " der brought the same deed to him the said Jeremiah to be " recorded in September 1805, he being at that time recor- " der of Northumberland county ; that a conversation then * l and there was held between the said Simon and the said " Jeremiah, wherein the said Simon declared that the deed '* aforesaid was not intended to injure Charles Drum, but " rather to serve him, and that the property described in said u deed was the property of said Drum, subject to a certain " small sum due to the estate of Anthony Selin." He further offered to prove, by the same witness, " that this ejectment " was brought without his knowledge, and that he never " would have consented to let his name be used, for any "other purpose than to enforce the payment of the sum so " claimed." This evidence was also objected to, and refused by the Court, who sealed a second bill of exceptions. Hall for the plaintiff in error. The bond from Drum to Antes was first of all seen can- celled in possession of the obligor; from which the pre- sumption was, that it had been cancelled by consent of all the parties interested, and therefore not legal evidence. It would have been essential to shew how cancelled, before the original if produced would have been evidence ; and that proof should therefore have preceded the offer of the copy. The Court erred in admitting it. 814. DRUM p. Lessee of SIMPSON. 480 CASES IN THE SUPREME COURT 1814. DRUM v. Lessee of SIMPSON. Simpson's evidence was clearly admissible. Parol evidence "is always admitted to defeat fraud or explain a trust. Thyn v. Thyn (a). In this Court it has been resorted to, to shew that a person who obtained a deed, did it under a promise to make a settlement, and the party claiming under the set- tlement as it ought to have been made, recovered. Thomp- son v. White (b). There was no objection therefore from the evidence being parol. Nor was there from the character of the witness. A trustee is considered in equity as having no interest, and is examined every day. Fotherby v. Tate (c), Armeter v. Swanton ( P 482 CASES IN THE SUPREME COURT 1814. DRUM v. Lessee of SIMPSON. complete effect, I think they would not have been evidence. But this is a very special case. At the time that Snyder is supposed to have made the declarations to Simpson, no con- sent had been given by Simpson to accept the trust, and it does not appear that without these declarations he would have consented to accept it. The deed therefore was not complete. A man cannot be compelled to accept a trust against his will. This conversation therefore between Sny- der and Simpson, is substantially the same as if it had hap- pened just before the execution of the deed j and it has been long settled in this Court, that parol evidence may be re- ceived to prove what passed before and at the time of the execution of the deed, if the party offering the evidence alleges fraud or mistake in the transaction. I refer particu- larly to the case of Thompson v. White ^ and the authorities there cited, 4 DalL 426. In another point of view likewise the evidence was admissible. The deed from George Glass to Simon Snyder is a conveyance of the legal estate, in con- sideration of twenty dollars, without mention of any trust ; neither does it appear by any positive evidence, that there was a secret trust attending this deed. Then the heirs of Selin claiming under Snyder , would be affected by his de- clarations made before his conveyance to Simpson. But for the reasons I have given, Snyder* s declarations are to be considered as having been made before the execution of the deed. They are therefore evidence. The case of Scroggs v. Scroggs, Ambler 272, bears a strong resemblance to the present. Power was given to Scroggs to make an appoint- ment in favour of such of his children as he pleased, with the consent of two trustees. He prevailed on the survivor of these trustees to join in a deed, making an appointment in favour of his youngest child, through false suggestions, injurious to the character of the eldest. The trustee was admitted as a witness to give parol evidence of this misre- presentation, and the appointment was set aside. Now the evidence offered by the defendant, tended to the proof of a misrepresentation, in consequence of which Simpson was induced to accept the trust. It appears to me therefore that it ought to have been received. Upon the whole I am of opinion, that the decision of the Court of Common Pleas was right on the first exception, but wrong on the second. The OF PENNSYLVANIA. 483 judgment must therefore be reversed, and a venire facias 1814. de novo awarded* DRUM v. YEATES J. was sick during the argument, and gave no Lessee of opinion. SXMPSON. BRACKENRIDGE J. concurred with the Chief Justice. Judgment reversed. Lessee of ANTHONY SNYDER and others against SIMON SNYDER. IN ERROR. Sunbury> Saturday, June 18. A husband can- THIS was an eiectment in the Common Pleas of North' j r i_ not be a '" lt; SS, umberlana county, tor 171 acres ot land, which the where, in conse- lessors of the plaintiff claimed as the children of Snuder deceased. ,, .,,, , ,..~ * i a Upon the trial below, the plaintiff proved title in Snyder at the time of his decease, and there rested Case. she* that half an acre of land inclu- ..,-_, , f . On behalf of the defendant, who was merely the tenant ded in a deed by in possession, and claimed no title personally, the real dis- ^Tex'ceptS ou pute being between the lessors of the plaintiff, and the chil- f the estate at r A , r, } nii i i t the time of sale. dren ot Anthony oe?n, to all whom he stood in the rela- tion of uncle, the following case was then exhibited : Upon the 19th May 1787, letters of administration to the der execution the revtr.,. ,. iiri bod\ ' n(! lands of estate or John bnyder issued to his brother the defendant, a third person. to his widow Mary Snyder, and to her brother-in-law John Jiuilfbe .iSim Miller. An original inventory amounting to ISO/. 55. \Qd. b J the records. i r rr i j i i i r A question can- was shewn trom the office, endorsed in the handwriting otnot be put to a the register at that time, "taken and appraised 19th May **%%?$ "1787, by Albright Swine ford and George Weurick* duly answer which tlie J party wishes, e.g. ' did he assign to ' you as a reason ' why he would : not bid more ' for the isle of Q, ' that he could ' buy fVs land 1 for &c." \ sale by order _ of Orphans' Court to the knowledge ot the petitioners, were 642/., and the is not conclusive until reversed on appeal, but may be questioned in an ejectment u qualified for that purpose." On the 1st January 1788, a petition in the handwriting of the defendant was prefer- red to the Orphans' Court, to which he subscribed his own name and those of the other administrators, setting forth the insufficiency of John Snyder 1 s peisonal estate to pay the debts, and maintain the children; that the debts, then come 484 CASES IN THE SUPREME COURT SNYDER etal. v. SNYDER. 1814. credits (including 220/. the amount of the goods sold at Lessee of ven due) 43O/., leaving a deficiency of 212/., and praying an order of the Orphans' Court to sell the real estate. On the succeeding day, the defendant was sworn to the truth of the statement by him exhibited with the petition, and an order was granted to sell the real estate on a certain day. No sale having taken place on this order, a second order was obtained at the instance of the defendant, on the 1st April 1788, to sell on the 27th May following. The pre- mises however were not sold under this second order, and it was again renewed on the 5th October 1790, upon the ap- plication of all the administrators, and a public sale was di- rected to be held at the court-house in Sunbury, on the 12th November following. Upon the third January 1791, a return of sale was made by the administrators, but not signed by them, stating that agreeably to the order of the court, they had sold the said real estate to Anthony Selin for 666/. 12*., he being the best and highest bidder j and the Orphan's Court thereupon con- firmed the sale, and directed that it should remain firm and stable forever. The administrators afterwards by their deed dated 12th June 1791, wherein the different proceedings in the Or- phans' Court were recited, conveyed the premises to Selin ; and the deed was duly acknowledged by the defendant on the 2d December 1803, by Mary Snyder (who had married Jacob Kendig} on the same day ; by John Miller on the 27th February 1804, and by Jacob Kendig on the 23d August 1805. The title being thus shewn out of the lessors of the plain- tiff, by the sale and conveyance to Selin, they endeavoured to defeat this title by several objections, which may be rank- ed under three heads. 1. To the proceedings in the Orphans' Court, as being on the face of them irregular, and contrary to law. 2. To the proceedings at the time of sale, on the part of Anthony Selin. 3. To the conduct of the defendant in un- necessarily inducing the sale, and becoming himself a secret purchaser with Selin. Under the first head, the objections were 1. That the original petition was signed by one only of the administra- OF PENNSYLVANIA. 485 tors. 2. That there was no proper inventory filed, or admi- nistration account settled, to authorize the order of sale : the time of filing the former not appearing, and there being but a mere statement in place of account. 3. That the de- fendant alone was sworn to the truth of the statement ac- companying the petition for a sale. 4. That the return of sale was not signed by the administrators. Under the second head, they produced evidence that An- thony Selm had behaved with much violence at the sale, and had threatened to knock down any person who should bid against him ; in consequence of which, a competitor of the name of Bower was deterred, as he said, from offering within 400/. or 500/. as much as he otherwise would have done for the property. They at the same time gave evidence that Selin, before and after the sale, said he would buy and had bought for John Snyder^s children. Under the third head, they gave evidence that A. Selm and the defendant were partners at the time of the sale, that the defendant came into possession after ScHrfs death, and had spoken of the property as his. They also shewed that John Snyder had purchased this land at sheriff's sale for 6271. IQs.; that he had paid only 100/. to the sheriff, and had given his judgment bond for the remainder, which remainder the defendant had not paid for several years after the sale to Selm. In the course of the exhibition of this and the preced- ing evidence, the plaintiff's counsel offered Jacob Kendig^ the husband of Mary Snyder, as a witness, he having first executed to Anthony Snyder a release of all interest of dower or otherwise in the land in dispute. But the defen- dant's counsel objected, and the Court, who sustained the objection, sealed a bill of exceptions. To rebut so much of the plaintiff's objections as were founded on evidence dehors the record, the defendant then offered evidence, 1. To discredit the witnesses of the oppo- site side, who had sworn as to Selin^s conduct and declara- tions. 2. To explain the circumstances in relation to the de- fendant's possession, and non-payment of John SnydcSs debts. With a view to the first object they offered among others the deposition of John Miller, which stated that he as 1814. Lessee of SNYDER et al. v. SNYDER. 486 CASES IN THE SUPREME COURT 1814. Lessee of SNYDER etal. v. SNYDER. sheriff of Lancaster county, had the real estate of Bswer ~ under execution, and a ca. sa. for his body, at the time of his asserted intention to purchase at the sale ; and that he went with him to the sale. That Bower never told him after the sale, that he would have given more for the land, if he had not been prevented by Selin. Then followed the question to the witness. Question. u Did said Bower assign to you as a rea- u son why he would not bid more for the isle of Cue, because " he could buy Witling's land adjoining Kendig's for 3/. per " acre, and that on yearly instalments, which in his opinion " was equally good with the isle of Cue?" Answer. " He "did tell me so, but I cant tell at what particular time." Miller's deposition also stated, that a certain half an acre, of which the defendant was possessed, was excepted out of the sale by the administrators, although contained in their deed to Selin. To this deposition the plaintiffs objected, but the Court received it, and sealed another bill, On the second branch of the defence, the defendant's coun- sel offered, 1. An arbitration bond between John Snyder and his brother the defendant, cancelled, and an award in the defendant's favour, by which he became entitled to part of the land included in the ejectment, and a survey of the piece in question referred to in the award, in conformity to which John Snyder in his life-time executed a deed. 2. Certain judgments against Peter IVeiser (the owner of the premises when purchased at sheriff's sale by John Snyder} prior to that under which the sheriff sold ; in consequence of which judgments, and the insolvency of the sheriff, the defendant was obliged to use great caution in paying the balance due by John Snyder. To these documents the plaintiffs also ob- jected ; but they were admitted, and other bills of exceptions sealed. In conclusion the Court left the case to the jury as to all matters of fact, expressing at the same time a very strong opinion in favour of the defendant. On the matters of law, they charged that there was a sufficient evidence that all ne- cessary forms had been complied with, and that if not, the decrees of the Orphans' Court ordering and confirming the sale, were conclusive until reversed upon appeal ; but that if Selin prevented binding at the sale, and thereby injured it, OF PENNSYLVANIA. 487 or if the defendant was a secret purchaser of part, the sale was void. The charge was also exccpted to, and the jury~ found for the defendant. In this Court the cause was argued upon the same ex- ceptions in point of law, which had been urged below, with the addition of the exceptions to evidence rejected and ad- mitted, and those to the charge of the Court. Fisher and Watts for the plaintiff in error. Duncan contra. TILGHMAN C. J. The record in this case contains five exceptions to the opinion of the Court ol Common Pleas of Northumberland county. The four first are upon points of evidence, the last to the charge of the Court. 1. The first exception was to the rejection of Jacob Ken- dig, a witness produced by the plaintiff. Before he was offered, he released all interest which he might have in right of his wife, or otherwise. The objection to Kendig is, that if the sale is set aside, his wife will have a right of dower. To this it is answered, that the wife has no immediate interest in the suit, nor could she give the verdict in evidence in an action of dower to be brought by her against the plaintiffs. In support of this are cited two cases from Johnsons' s Re- ports. Jackson v. Bard, 4 Johns. 230. and Jackson v. Van Dusen, 5 Johns. 147. In Jackson v. Bard, the widow was clearly disinterested, because she had joined her husband in a deed which barred her dower ; so that it was indifferent to her, whether the heir of her husband recovered or not, and that was one of the reasons, (and it appears to me the prin- cipal one) which governed the Court. Jackson v. Van Dusen seems to have been decided on the authority of Jackson v. Bard, and therefore it may be that the point was not thoroughly considered. There is privity of estate be- tween Mrs. Kendig and her children, who are heirs of her husband. She is interested therefore in the verdict. If the plaintiffs recover, the land will be re-sold. From the great rise in value, it is certain that it will sell for much more now than formerly, consequently the estate of John Snyder will be increased, and the Orphans' Court will allow to Mrs. 1814. Lessee of SNYDER et al. v. SNYDER. 488 CASES IN THE SUPREME COURT 1814. Lessee of SNYDER et al v. SNYDER. Kendig in lieu of dower, an annuity equal to the interest of one third of the increase. In the proceedings which take place in the Orphans' Court, in consequence of that sale being set aside by this verdict, the Court will not only receive the ver- dict as evidence, but make it the foundation of the proceed- ings. When the land reverts to the estate of John Snyder^ the administrators may petition for a new order of sale, to enable them to do justice to all parties concerned, and when the new sale is made, Mrs. Kendig will receive her propor- tion of the gain in the manner which I have mentioned. Jacob Kendig therefore stands in the situation of a person who has no interest himself, but whose wife has an interest to take effect after his death. During his own life he has re- leased every thing which his wife would be entitled to re- ceive ', but he cannot release that which may accrue after his death. There remains therefore an interest in the wife, which she may either convey or release by an immediate deed, provided her husband joins her. A husband thus circum- stanced is an incompetent witness, not because of interest, but because of the policy of the law, which excludes hus- band and wife from testifying, where the rights of either are concerned. Much of the happiness of society depends on the intimacy of husband and wife. The law considers them as one, and will not suffer their union to be broken or even put to hazard by testifying against each other. As to testifying for each other, it would be so manifestly improper, that there needs no argument on the subject. I am of opinion therefore that the Court was right in rejecting the evidence of y. Kendig. 2. The next exception was to the admission of certain papers offered in evidence by the defendants, viz. arbitra- tion bonds between John Snyder deceased, and Simon Snyder the defendant, an award of arbitrators, and a draft of a piece of land referred to in the award. There needs but to state the case in order to shew that this evidence was properly received. The plaintiffs asserted that the defen- dant was a secret partner in Anthony Selin^s purchase. After the death of Selin, the defendant came into possession ; hence might arise a presumption unfavourable to the defen- dant. It was incumbent on him therefore to account for this possession, which he did in part by the papers alluded to in OF PENNSYLVANIA. 489 this exception. The arbitrators made an award by which the defendant became entitled to part of the land included" in this ejectment. The Court was right therefore in receiv- ing the evidence. 3. The next exception was to the admission of the records of sundry judgments against a certain Peter Weiser. This also will appear to be clearly right, when the circumstances are explained. The plaintiffs objected to the conduct of the defendant in not making payment of the debts of John Sny- der for a considerable time after his land was sold. Tne objection was answered as follows. John Snyder had pur- chased the land in dispute of Peter Weiser. There were seve- ral judgments which bound Weiser's land prior to Snyder's purchase. Snyder was indebted to the estate of Weiser in a considerable sum, part of the purchase money, for which judgment was obtained against his administrators. The sheriff of Northumberland county was insolvent, and great caution was necessary, lest the payment made by John Snyder^s administrators should not be applied to the riis- charge of the judgments which bound the land. This was the excuse offered on the part of the defendant, and it was right that he should be allowed the opportunity of proving his allegations. 4. The fourth exception goes to the deposition of John Miller. At first it was said that the notice of the taking of this deposition was not legal, but as that objection was waived on the argument, I shall say nothing of it. Several par- ticulars in the deposition itself were then excepted to. 1st. The witness swore, that in the sale by the administrators of John Snyder to A. Selin, there was an exception of half an acre the property of Simon Snyder. It is said that the half acre is included in the deed from the administrators (of whom Miller was one) to Selin. If so, the evidence was improper, because it was in contradiction of the deed. 2d. The witness had formerly been sheriff of Lancaster county, and swore that he had the real estate of a certain Michael Bower under execution while sheriff, and also his body, by virtue of writs of execution issued from the courts of Lancaster county. This evidence was also improper; it should have been proved by the records that such execu- tions had been issued. 3d. One of the questions proposed VOL. VI. 3 Q 1814. Lessee of SNYDER etal. v. SNYDER. 490 CASES IN THE SUPREME COURT 1814. Lessee of SNYDER etal. v. SNYDER. to the witness was objected to as a leading question. I think the objection was good. The question was so framed as to indicate particularly the answer which the plaintiffs wished. Instead of asking the witness whether he had heard John Bower say any thing, and what, on a certain subject, the words were put into his mouth ; viz. " did he assign to " you as a reason why he would not bid more for the isle " of Cue, that he could buy Witling's land for 3/. an acre, "and that on yearly instalments &c. ?" I am of opinion therefore that the plaintiffs in error have supported their exception to Miller's deposition. 5. The last exception is to the charge of the Court. In all respects but one I think the charge was correct. The con- duct of A. Selin at the sale was submitted to the jury, and they were told that if in their opinion it was such as to deter others from purchasing, the sale was void, and the verdict should be for the plaintiffs. They were likewise told that if the defendant was secretly concerned in the purchase, the sale was void, because the defendant being authorized together with the other administrators, to sell the land by order of the Orphan's Court, could not lawfully be the pur- chaser ; and although he was concerned but in part^ it was sufficient to vitiate the whole. So far the charge was as favourable to the plaintiffs as they had any right to ask. But the plaintiffs insisted further, that the Orphans' Court ;had no power to order a sale, because no inventory had been returned, nor was it proved to the Court that there was not personal estate of John Snyder sufficient to pay his debts. It was matter of controversy on the evidence, whether an inventory had been returned or not, and whether there was not sufficent proof that the personal estate fell short of the debts. On both these facts the Court expressed their opi- nion in favour of the defendant, leaving them however to the decision of the jury. This was doing no more than the Court had a right to do ; but they went on to say that at all events, the sale having been made by order of the Orphans 1 Court, and afterwards confirmed, could not be questioned in an ejectment, but stood good until reversed on an appeal. The law is clearly not so. The Orphans' Court is not a court of general jurisdiction, and with respect to the sale of lands they have no other power than is conferred by act of assem- OF PENNSYLVANIA. 491 bly. It might be more convenient, and render the law more uniform, if those proceedings were reversible only on an" appeal ; but after the long practice which has prevailed of inquiring into those proceedings in actions of ejectment, it is too late to attempt an alteration. It is unnecessary to dilate on this subject, as we delivered our opinions expli- citly in the case of Messinger v. Kintner 4> Binney 97. I think it however proper to remark, that although the pro- ceedings of the Orphans* Court may be reversed in an ejectment, yet as much property depends on those proceed- ings, great allowance should be made for the informal man.- ner in which they have been conducted, especially where the titles acquired under them, have been accompanied with long possession. On the whole my opinion is, that the judg- ment in this case should be reversed, and a venire facias de novo awarded. YEATES J. The importance of some of the principles agitated in this cause, has induced the Court to continue the matter under advisement. To me it appears, that the fate of many titles is involved in our decision. Several questions of evidence have been raised on bills of exceptions sealed at the trial. The first respects the over- ruling the testimony of Jacob Kendig^ who intermarried with Mary the widow of John Snyder, under whom both parties claim. It has been contended that he was no legal witness, upon the grounds of interest, and of public policy. Upon the score of interest, it has been urged, that although he has released all his claim in right of his wife to her dower in these lands, his wife has not joined in the release; consequently a future interest will accrue to her on the event of her surviving him, and sh^ is to be viewed as a re- mainder man : that she must necessarily be benefited upon such event arising, if the sale made in pursuance of the order of Orphans' Court can be invalidated : that it was admitted on the trial, that her former husband died seized ot the premises, and she claiming under him an excrescence from his estate, has a privity of estate with the plaintiffs his children, and may give the verdict in evidence in a suit brought for her dower. I answer that the husband certainly cannot give testimony 1814. Lessee of SNYDER et al. v. SNYDER, 492 CASES IN THE SUPREME COURT 1814. Lessee of SNYDER et al. v. SNYDER. in favour of his wife, in a question where her separate inte- rest is concerned ; yet that interest of the wife must be cer- tain and positive, not merely possible and contingent. What the law looks upon as interest, is, where there is a certain benefit or disadvantage attending the consequence of the cause one way. Gilb. Law Evid. 12O. Lord Hardwicke has stated explicitly in Rex v. Bray, Hardzu. Cas. 359, that if a witness can answer fully on a voir dire that he is not to gain or lose by the event of the particular suit, he must be a witness. A juror must stand absolutely indifferent as he stands unsworn ; but a witness need not be so. A creditor may be a witness in a suit brought against a stranger by his debtor, although the money so received may enable such debtor to satisfy the creditor. He may be examined as a witness to prove fraud in his debtor, who has applied for the benefit of the insolvent act. 2 Dall. 268. The contingency of the wife surviving her husband is highly uncertain ; and although I admit that she may be con- sidered, on that event happening, interested in the question in this suit, yet that is not such an interest as will exclude the husband from giving testimony, according to the uniform current of the modern authorities, which we have fully adopted. In Baker v. Arnold, 1 Caines 276, Mr. Justice Kent observes, that it has been the bent of the Court for a century past to enlarge the rule respecting the competency of witnesses. It must be a present and vested, and not a future and contingent interest, that excludes a witness. He must be interested directly in the event of the cause, and not merely in the question put. The rule is that if the witness will not gain or loose by the event of the cause, or if the verdict cannot be given in evidence for or against him in another suit, the objection goes to his credit only, and not to his competency. Such have been the principles of deci- sion in this Court in a great variety of cases. I do not see how the vtrdict in this case could be given in evidence by Mrs. Kendig, in any future suit she might bring for her dower, in case she survived her husband. The cases of Jack- son v. Bard, 4 Johns. 230., and Jackson v. Van Dusen 5 Johns. 158, are express authorities in point. There are many cases where, though the tendency of a man's evidence be to promote his own advantage, or to give him a certain OF PENNSYLVANIA. 493 reward, yet he is a competent witness. When the interest is very remote it shall not disqualify the witness. 1 Stra. ~ 575. Espin. 705. It has been moreover insisted, that if Kendig was not ex- cluded from giving testimony on the ground of interest, he would be repelled on a system of public policy, which for- bids husband and wife from being witnesses for or against each other. Admit this to be the basis of the doctrine of evidence as applicable to persons in a married character, what discord or enmity could flow from the husband testi- fying favourably to the pretensions of the plaintiff? That he is not himself interested in the event of this cause, I have already shewn, and that his wife may by possibility hereafter become interested in the question, I have admitted. That the feelings or wishes of the witness might be strongly embarked on the side of the plaintiffs, I have little room to doubt. But such is uniformly the case, as between parent and child, and our nearest connexions in life, whether formed by nature, by choice, or by habit. The law knows no scale whereby in- fluence may be measured, but refers the credibility of wit- nesses with all their prejudices and prepossessions, to impar- tial persons, under the proper remarks of the Court, adapted to the circumstances of each particular case. I find in the Supreme Court of Appeals in Virginia, in 1806, the case of Baring- v. Reeder, reported in 1 Hen. & Munf. 154, which appears to me very similar to that under consideration. It underwent the fullest argument both at the bar, and on the bench, and all the authorities on the sub- ject in the books seem to have been fully ransacked. The majority of the Court then established the broad principle, that in suits in which the husband is not immediately and certainly interested, but may be so eventually, the wife is a competent witness. Her credibility can be weighed by the jury alone. I have been more minute on this point of evidence, as I presume from what passed during the argument, I shall be found here in the minority. But I am imperiously bound to declare my own opinion, and the reasons which influenced it. I regard the arbitration bond, award, and survey by Wil- liam Gray, which has also been excepted to, as legal and 1814. Lessee of SNYDER et al. v. SNYDER. 494 CASES IN THE SUPREME COURT 1814. Lessee of SNYDER etal. v. SNYDER. relevant evidence in this cause, and that they properly went to the jury. The plaintiffs attempted to establish that the defendant came into possession of the premises, under the sale by the administrators of John Snyder, founded on the order of the Orphans' Court j and that he was concerned with Anthony Selin in the purchase. Hence fraud was inferred which would vitiate the sale. It was therefore incumbent on the defendant to prove that his possession was derived from a different source, and that he came in under a deed from the intestate to himself and A. Selin, for 82 acres 50 perches, (part of the original tract) dated 23d February 1787, exe- cuted in pursuance of an award by men mutually chosen to settle the controversies between them respecting this 'TO- perty. The arbitration bond and award were functi officiis t when the deed was given in pursuance of the award, which though cancelled, ought to be proved by a subscribing wit- ness as well as other deeds. Peake's Evid. 64. These docu- ments formed the original ground of the deed, and shewed powerfully, that the transaction in this particular was per- fectly fair. The award referred to the survey of a particular date made by William Gray the umpire, and the whole proceeding in its various stages was correctly brought before the jury, for their decision on the toute ensemble. In the same light I view the judgments against Peter Weiser, a list whereof was exhibited to the jury, but like- wise excepted to. John Snyder had purchased his lands at sheriffs' sale for 63 7/. 10*. He had paid no more than 100/. of the purchase money, and had given his judgment bond to the sheriff for the residue. On the part of the plaintiffs it was contended, that there was no necessity for a sale of these lands, and that the sale was hurried with undue pre- cipitation. To repel the force of these remarks, it became material to shew the pressure on the estate of John Sny- der from different quarters, and that the judgment creditors of Weiser, whose lands had. been sold to the intestate, and the consideration money had been unpaid, would be pecu- liarly urgent for their demands. To form a correct judgment of the merits of the plaintiffs' claim, we must transport ourselves back to the period of the death of their father, and consider the true state of his debts and credits, and the OF PENNSYLVANIA. 495 situation of his family at the time. No arguments injurious to a purchaser can be deduced from the rapid rise of lands since that era, if the sale was in itself necessary, and the proceedings were regular and fair. I consider the supplemental depositions of John Miller, as containing matters not properly the subject of parol evi- dence. The intention of the administrators of John Snyder in their deed to A. Selin, must be collected from their writ- ten expressions, and not from circumstances dehors the writing. The executions issued against Michael Boiver one of the plaintiffs! witnesses, should be proved by certified copies ; although his identity might be established by parol evidence. As to one of the interrogatories being leading, I content myself with observing that it ought to have been excepted to at the time. Such was our determination in Sheeler v. Spear, 3 Binn. 1 30. I proceed to the charge of the president of the Court of Common Pleas, which is said to be erroneous in several particulars. In so doing, I hold myself bound by the facts of the case, as necessarily found by the verdict of the jury. The reasoning of the Court, and the legal conclusions drawn by them, must be judged of from the facts stated in the charge. Should we suppose those facts to have been incor- rectly stated, we cannot as a court of error revise them. We must bear in mind that if the court below have given a right judgment, though for a wrong reason, it ought never- theless to be affirmed. 1 Munf. 557. The proceedings in the Orphans' Court having been warmly impeached, it becomes necessary to state them minutely. [His honour here stated the facts.] To these dif- ferent proceedings several objections have been taken ; and the plaintiffs' counsel have insisted that the course of descent was not broken, unless all the provisions of the seventh section of the old act of 1705, " for the better set- tling of intestates' estates," (1 DalL Laws Append. 45, ) have been strictly complied with ; and the words " then and in every such case, and not otherwise" have been much relied on. 1. It has been objected that the original petition was not signed by all the administrators ; and the law requires the act to be done by all. To this it is a sufficient answer to say, that they all joined on the 5th October 1790, in an applica- 1814. Lessee of SNYDER et al v. SNYDER. 496 1814. Lessee of SNYDER etal. v. SNYDEB. tion to renew the order of sale, and acted under it. The law does not require a petition, although such has been the practice : but only an exhibition of certain accounts, shewing the necessity of a sale. Here the maxim applies : " omnis " ratihabitio retrotrahitur et mandato equiparatur" Co. Lit. 207. As to the words and not otherwise, in this 7th section, I will observe in my outset, that instead of the literal and strict construction of the words as now contended for, they were very liberally expounded by M^Kean Chief Justice, at a full court, in the case of Humphrey Fullerten at Chambers- burg, after solemn argument in which I was counsel, by deciding that the Orphans' Court had power to direct a sale for payment of debts, although there were no minor chil- dren to be maintained ', and within my own knowledge, se- veral sales have been ordered in like cases, in pursuance of that decision. 2. The want of an inventory and administration account to warrant the sale, have been strongly pressed in the argu- ment, as radical defects. In fact, the original inventory was given in evidence, though the judge erred in stating that it was not filed till after the sale. There can be no reason to doubt that it was filed on the same day the letters of administration issued. We well know that in the country, the giving of bond, taking out letters of administration, and filing the inventory, are frequently simultaneous acts, done at the same time to save the trouble and expense of another journey to the coun- ty town. Why did the register himself make the memoran- dum on the inventory, that it was taken and appraised 19th May 1787, bySwineJbrd and Weyrick duly qualified for that purpose ? It is true, he ought to have endorsed on the paper when it was filed. But shall purchasers at fair public sales be affected by the unskilfulness or negligence of the proper officer ? But suppose that no inventory had been filed pre- viously to the order of sale, would not an honest statement of the amount ot sales of all the goods, and an estimate of choses in action^ be a substantial compliance with this part of the act ? The object of the legislature was, that the lands of an intestate, or such part thereof as should be necessary, should be sold to enable the administrator to pay debts and OF PENNSYLVANIA. 497 maintain the minor children, in case there should not be per- sonal estate sufficient to effect these purposes. By adding the advance of sales to the conscionable appraisement, the true state of the intestate's affairs is disclosed to the Court. The words of the law of 17O5 are, "that the Orphans* *' Court shall not allow or order any intestate's lands or 11 tenements to be sold, before the administrator requesting " the same, doth exhibit one or more true and perfect inven- " tories, and conscionable appraisement of all the intestate's 11 personal estate whatsoever, and also a just and true ac- " count upon his or her solemn affirmation, of all the intes- " tate's debts, which shall be then come to his or her " knowledge," &c. The act by no means requires the re- gular settlement of an administration account, which cannot be done without sufficient assets, but only a true account of the debts known to the administrators. If it appears on the facts disclosed to the Orphans' Court, that the debts cannot be discharged, and the children brought up without selling the lands, and they are fully satisfied on those points, their powers are called into full exercise. I am uninformed of the particular circumstances of the case of the lessee of Larrimer and "wife v. Irwin, cited in 4 Binn. 104 ; but if the order of the Orphans' Court was therein declared to be void, because at the time of the de- cree no administration account was settled, I never can be brought to assent to that decision. Neither the policy nor the words of the law demand this construction ; and I have no hesitation in asserting, that in the counties wherein I have practised, at least nineteen cases out of twenty of sales under the orders of Orphans' Courts, would be avoided, should that doctrine be established. 3. It was further objected that Simon Snyder alone was sworn to the truth of the accounts by him exhibited in the petition for a sale. It is not unusual for the acting adminis- trator to conduct the proceedings. The defendant was on the spot, and Miller lived about eighty miles distant from the scene of action. The widow could not be supposed to be well informed in business of this nature. Simon Snyder appears through all the proceedings to have been the acting admi- nistrator, and on the 28tli October 1805, settled by himself the administration account of all the transactions in North- VOL. VI. 3 R 1814. Lessee of SNYDER et al. v. SNYDER. 498 CASES IN THE SUPREME COURT 1814. Lessee of SNYDER etal. T>. SNYDEH. umberland county. From all the administrators joining iu the application for the renewal of the order of sale actu- ally selling under it executing a deed to the purchaser- and confirming it by their solemn acknowledgments at three different times, I feel myself bound to presume that they all saw the necessity of selling the lands, and previously agreed to apply for the order of sale. From the circum- stance of the names signed to the original petition being in the handwriting of Simon Snyder, (which it was incumbent on no purchaser to examine) it is most highly probable, that he alone was present when the Orphans' Court made the order; and if that Court was satisfied of the correctness of the statement verified by his oath, I think the order to sell may well be supported. 4. The return of sale not being signed by the administrators, forms the last exception. The law only requires, " that the " administrator who makes such sale, shall bring his or her '* proceedings therein to the next Orphans' Court after the " sale made." The Orphans' Courts are the proper judges of their own modes of practice. The return is only evidence of what has been done under the decree, and that the adminis- trator had proceeded agreeably thereto. The sale is submit- ted to the Court for their approbation. Here the Court have acted judicially on the unsigned return, and have ordered the sale to remain firm and stable forever. The recitals in the deed to the purchaser abundantly supply any seeming defect in this part of the proceeding. I cannot avoid remarking, that the exceptions which I have considered, furnish striking proof of the propriety of applying to professional men to transact matters of this nature. It is the most ill judged economy to intrust business in courts of justice upon which the titles to lands depend, to men unskilled in such subjects. I am under no difficulty wnen I assert the charge of. the Court to be erroneous, in declaring in broad and general terms that the final determination of the Orphans' Court on the sale was conclusive, until set aside upon an appeal or other removal to a superior court. Indeed as to this point, the subsequent part of the charge is manifestly contradictory ; because it is particularly submitted to the jury to decide, whether the sale was materially injured by any improper conduct of Anthony S'elin, and whether Simon Snyder was OF PENNSYLVANIA. 499 interested with him in the purchase of the lands, in either of which cases the jurors were instructed that the sale ought to be declared void. What effect the general proposition abovementioned would have on the minds of the jurors, I will not venture to determine ; but that it might distract the attention from the true merits of the case is within the range of possibility. I have already expressed my sentiments upon the ex- ceptions taken to the proceedings in the Orphans' Court, and have spoken with freedom of the case of Lar rimer's Les- see v. Irwin. Upon the fullest reflection, 1 do not feel dis- posed to retract any part of the opinion which I delivered in Messenger et al. v. Kintner, 4 Binn. 105. 107. I consider the general remark to be correct, that the decree of the Orphans' Court in a case within their jurisdiction is reversi- ble by appeal only, and not collaterally in another suit. The settled rule is, that the merits of a judgment can never be contested by any original suit either at law or in equity. 2 Burr. 10O9., 1 H. Black. Rep. 294. The maxim is,dejide et cfficio judicis non recipitur questio* Hardr. 127. But in Messenger v. Kintner, the defendant in error, a minor some- what about nine years of age, was attempted to be bound by proceedings unsanctioned by law or justice, to which neither he, his guardian, nor next friend were parties. It was res inter alios acta, and no presumption could be formed in favour of what was done. I assimilate the present case to a sheriff's selling land, which he has taken in execution by process of law. The judgment concludes all irregularities in the previous proceedings, except where the plaintiff in the execution becomes the purchaser. Goodyer v. Junce, Teh. 179. But the sale must be fair and just in itself, uninfluenced by threats or violence. The officer cannot sell to himself. Fraud will vitiate any act whatever. Here the lands have not been aliened by the first purchaser, but remain in his chil- dren, whose guardians have leased to the defendant. The true merits of the case rest on the honesty and fairness of the public sale, and may be fully contested in the present suit. Upon the whole matter I am of opinion that the judgment below be reversed, and a new trial be awarded. BRACKENRIDGE J. accorded in opinion with the Chief Justice. Judgment reversed. 1814. Lessee of SNYDER et al. v. SNYDER. 500 CASES IN THE SUPREME COURT * Lessee of SWEITZER against MEESE and others^ , OK. Notice to take * i^HIS was a writ of error to the Common Pleas of Centre depositions at the . . . ... houi,e of -- "* county, to remove the record and proceedings in an kee'^tn'rorifc act i n f ejectment. With the record came up two bills of on the 27th of the exceptions by which it appeared as follows : present month of TT , . i r i i i / j j December, be- Upon the trial ot the cause, the plaintiff offered to read rften A e M?md the de Pstions of Rudolph Spangler and Margaret Dawdle, seven P. M , taken at the house of Samuel Spangler in York at five P. M. though the notice . . r ^ , ,_^ . - has iv date, does on the 27th or December 18O9, in pursuance or a notice, en- ^SK/SSSaiZ^^ in the cause and directed to George Meeseone of the ami ws served defendants, calling upon him to take notice that the deposi- only on one of three defendants tions would be taken " at the house of - Spongier, inn- go.Tw'aTto'au- ** keeper in Yorktown, Pennsylvania, on the 27th day of thorfze reading a December, the present month, between the hours of ten deposition taken * at fi*e P.M. on " o'clock in the morning, and seven in the evening of that " same day." The notice had no date, but was served on Spanffier : thetio-M eese upon tne land, on the 2d of December 1809. tioe having been ' . on the 2d Spongier the witness, and his wire, had conveyed the pre- mises to the le s s or of the plaintiff on the 25th of March 1 797, proof iha> either with covenant of warranty against himself and his heirs and ot the defendants . . _ . . attended at the also against the heirs ot Michael Hahn, whose admimstra- na( ^ conveyed to Spangler, in pursuance of a contract on any hour of bv Hahn* A grantor with Margaret Dawdle was the wife of Michael Dowdle, who od '"witness ^^ ^ een ec l ua ^y interested with Hahn in the premises, and to support the U- hud conveved his interest therein to the lessor of the plain- tie against any one .. ,i, i, . . r TI/I i ^ not claiming Im- tilt by deed dated the 14th of March 1792, the witness not '" e- J inin S in the conveyance. thera/ewec-o^er/ The defendants objected to both depositions, as well on, is a good witness . iriri r \ to support the ti- the ground or detects in the notice, as 01 interest in the wit- nesses > and the Court sustained the objections. band, when her Watt* for the plaintiff in error. The objections to the depositions and witnesses had no foundation. It was said the notice has no date ; but it was served on the 2d of December, and referred to the 27th of the present month , of course the delivery fixed the date. Another objection was, that the notice was given only to OF PENNSYLVANIA. 501 one defendant ; but it was given to him upon the land, and notice to one is notice to all in a joint trespass. At all events" it authorized the reading of the deposition against him. A third, that the name of Spangler was not mentioned ', but there was no other Spongier an innkeeper in Tork but Samuel, and the defendants did not attend at any Span- gler's. If they had, the objection would have had colour. The last objection to the notice, was the length of time it allowed. This was in the defendants' favour ; and whether or not, they cannot set it up as a defect, when they did not attend at any hour. Spangler was a perfectly good witness. Having warrant- ed only against himself, his heirs, and the heirs of Hahn^ he had no interest either in this suit or question. The ven- dor of lands is a good witness to shew title, except where his warranty interferes. Twambly v. Henly (a). Margaret Dowdle was also a good witness to establish the title, because although she might have had a contingent interest in the question, she could not have given the ver- dict in evidence in a suit for her dower, Jackson v. Bard (6), and Jackson v. Van Dusen (c), are conclusive. The lat- ter is in point, Peake's Ev. 151. Burnside and Duncan contra. The notice did not contain sufficient certainty. Though the same may not be requisite, as in a notice to execute a writ of inquiry, it should have at least certainty to a com- mon intent, in like manner as notice of a bill to perpetuate testimony, or of the appointment of arbitrators. Here there was no distinctness either of person or place.- In point of time too, the notice took too great a range. Can it be re- quired of a party, that he shall wait nine hours upon his opponent? It at most should have allowed but two hours, Crompt. 285, and should have been served upon all the de- fendants. Crompt. 286. The defendants may defend sepa- rately, under distinct titles. The joint trespass in the eject- ment is a fiction. The Court cannot know how they claim, Until they open their titles. Spangler>s deed contained a warranty against Hahrfs heirs, and it did not appear, but that some one of the de- fendants claimed under Hahn. 1814. Lessee of SWEITZER V. MEESE etal. (o) 4 J/ass. 441 . (/>) HJohns. 130. (c) 5 Johns. 14V. 502 CASES IN THE SUPREME COURT 1814. Lessee of SWEITZER V. MEESE etal. Margaret Dawdle was interested in the event, because if Sweitzer recovered under her husband, she might give the verdict in evidence against Sweitzer, to shew he made title, and got possession under her husband. In case of Sweitzer's failure, she could not recover against a stranger, without proving her husband's title and seizin. She stood as a re- mainder man, who cannot be a witness, though the heir may. Her right, though inchoate, commenced on the mar- riage. 2 El. Com. 131., 2 Bac. 387, Dower G. Jackson r. Van Dusen, is supported by no other case. It appears to have been ruled by Jackson v. Bard, which is totally dif- ferent from it* TILGHMAN C. J. gave no opinion, having been sick during the argument. YEATES J. Two bills of exceptions have been sealed by the Court, upon their overruling the depositions of Rudolph Spongier, and Margaret Dowdle, which were offered in evidence on the part of the plaintiff. The objections taken to them, are grounded on the want of proper notice being given under the rule of court to the adverse parties, previously to the witnesses being examined, as well as a supposed interest in the witnesses themselves. It has been contended, 1. That the notice to take the depositions at the house of Spongier inn-keeper in Torktown was uncertain; because there might be twenty persons of that name keeping inns in Tork. 2. The notice bears no date on the face of it. 3. The time of taking the depositions was stretched to an unreasonable extent j but at all events they were taken too early. 4. The notice was served on George Meese one of the defendants only, and ought to have been served on all of them. As to the first objection, I answer that it does not appear there were more persons than one of the name of Spongier inn-keeper in Tork. If the defendants had attended on the day appointed at the inn of any Spongier in York, and been led by the form of the notice into a mistake, the exception would have prevailed. But it is admitted that neither of the defendants nor any one in their behalf, did take any step in consequence of the notice. OF PENNSYLVANIA. 503 The notice given, was u to take depositions at York on " the 27th day of the present month of December, between" " ten o'clock in the morning and seven o'clock in the even- " ing of the same day," and was proved by Isaac Weideman to have heen served on George Meese one of the defendants, on the lands in question, on the 2d of December 1809. It appears by the depositions, that they were taken at the house of Samuel Spongier inn-keeper in York, upon the 27th of December 1809, at five o'clock in the afternoon. These facts obviate any seeming difficulties on the second exception. The service of notice on the 2d of December 1809, supplies the defect of date; for on the 27th of that month the depositions were to be taken. Allo\\ ing the de- fendants an interval of nine hours on a particular day, at an inclement season of the year, when unforeseen difficulties might obstruct their journey, was a real benefit to them ; and if they or any one in their behalf had attended at any time before seven o'clock, and were prevented from having the witnesses cross examined, the objection would have held good. I explicitly assert, that I would hold any notice bad, which would probably deprive the adversary of his undoubt- ed right to put his own questions to the witness. On this subject I hare heretofore expressed my sentiments in Shee- ler v. Spear, 3 Rinney 134, which I still retain. The form of notice to take depositions has no general rule but one, that it should contain convenient certainty as to the time and place of taking them. We should avoid a laxity which may tend to defeat the benefit of a cross examination by the adverse party. The notice should be sufficiently correct to inform him when and where he should attend. It is obvious that a notice to take depositions in a populous city, should be more special, as to the designation of place, than when intended to be taken in a town of inconsiderable extent. If George Meese had been the landlord, a notice served on him would be sufficient to entitle the plaintiff to read the depositions, as to all the defendants. This does not appear, and I agree we are not at liberty to travel out of the record. The titles of the defendants were not disclosed when the evidence was offered. Take then the strongest case that can be supposed for them, in support of the fourth objection, that they held under distinct rights. In such instance, each 1814. Lessee of SWEITZER v. MEESE etal. 504 CASES IN THE SUPREME COURT 1814. Lessee of SWEITZER V. MKESE etal. defendant might defend his separate possession according "to its relative merits. In this state of things the deposition would be good evidence as to George Meese, but not as to Jacob Meese or Adam Cross the other defendants, and the jury should have been instructed accordingly, when this ground of exception was urged to the deposition. I do not adopt the principle urged by one of the plain- tiff's counsel, that service of the notice upon one of the defendants) on the lands in controversy, renders the service good as to all ; because different defendants may have dif- ferent grounds of defence. I take the general practice to be, to give notice to the active plaintiff or defendant, who con- ducts the suit, but to avoid all misconceptions in such cases, it is most prudent to provide for them by the terms of the rule. In many instances it would be impracticable to give notice to all the parties in the suit, whether plaintiffs or defendants. It has been further insisted, that Rudolph Spongier was disqualified from giving evidence on the ground of interest. It is stated that on the 25th of March 1797, Rudolph Spon- gier and wife conveyed to the lessor of the plaintiff one moiety of the lands in controversy, with covenant of special warranty against himself and his heirs, and against the heirs of Michael Hahn, who in his life time articled to con- vey to Spongier. The defendants' counsel say, it does not appear but that they might have claimed under Michael Hahn or his heirs, in which case Spongier could not be re- ceived as a witness. What is this, but in effect asserting that Spongier was interested, because by possibility he might be interested? The general rule of law is agreed to be that a vendor of lands is a good witness to shew title, when there is no covenant of warranty. If the defendants meant to rely on an exception to that rule, it was incumbent upon them to establish the facts upon which this exception was founded, that in truth they held possession under the heirs of Michael Hahn. As to Margaret Doivdle, I consider her a competent witness. If she should hereafter claim dower in the lands in controversy, her right would be the same precisely, whether it was demanded by her writ against the lessor of the plaintiff, or the defendant in this suit. In either instance OF PENNSYLVANIA. 505 it would be incumbent on her to establish her claim by legal proof of the seizin of her husband either actual or legal in these lands, without which she could not recover. She could not claim under the plaintiff, but under her marriage and the supposed seizin of her husband, and whatever might be the result of the present trial, it was res inter alios acta, and the verdict could neither be given in evidence lor or against her. It is so adjudged in the two cases in New Tork, 4 Johns. 233., 5 Johns. 158. The utmost extent to which the objection could go, would be restrained to her credit. She might be said to be interested in the question then to be tried, but this according to our uniform decisions does not form an objection to her competence. It is similar to different underwriters on the same policy of insurance being received as witnesses. I think there was error in overruling the depositions of either of the witnesses, that the judgment below be reversr ed, and a venire facias de novo be awarded. BRACKENRIDGE J. In an ejectment between two alienees claiming under the same grantor, but claiming subject to the wife's right of dower, which was the New Tork case 4 Johnson 23O, there can be no doubt but that the wife may be a competent witness; for it can make no difference with her, which of them takes the two thirds, or that in- terest whatever it may be to which she is not entitled. The New Tork case, 4 Johns. 230, was that of a widow totally disinterested as to which of the alienees made out a title by their deeds from the husband. Her claim of dower re- mained unaffected either as to the right or the facility of recovery against either of them in a proceeding for her dower. The case, 5 Johnson, is ruled upon the strength of this, and if it is the same or a similar case, that of two per- sons claiming under the husband of the widow, who is en- titled to dower, it could make no difference to her which of them succeeded, and the verdict could not be given in evi- dence in such case, being irrevelant and proving nothing. That is, it could have no bearing on the question as be- ween her and either of these, to shew her right of dower in the estate which both claimed under the same grantor or ancestor in the case. VOL. VI. 3 S 1814. Lessee of SWEITZER V. MKESE et al. 506 CASES IN THE SUPREME COURT 1814. Lessee of SWEITZER v. MEESE et al. But take the case before us and apply principle; for it must be the same case where you apply precedent. Even a case of cattle running at large^ cannot always be said to be a case upon all fours, for it is not in that sense of the word that the maxim is applied nullum simile est idem, or nullum simile quatuor pedibus currit. The present case is that of an adverse claim to the title of the husband of the witness. If it succeeds, it must change the possession of the person holding under the husband, or in other words deriving title from him. He sets up a title paramount to the husband and the wife, and he claims above them both. The title set up is adverse to them both, and it is for the whole possession that had been of the hus- band and wife. Has not the widow an immediate interest in defending herself with the tenant in common, a tenancy in law, if not mfact? It is true she may recover her dower against the adversary, should he get into possession of the whole, but in that case she must establish not only her mar- riage &c., but she must go on and prove original title in the husband. This she has no occasion to do against a per- son claiming under the husband. It will be sufficient to shew the conveyance to him, and that he got into possession by a verdict and judgment and an habere facias possessionem under that judgment, which must conclude him as to the necessity of her proving an original title in the husband. The proceedings in this case therefore could be given in evidence, as shutting his mouth to say that she was not en- titled to dower in this estate on the ground of not being the husband's. This on a suit between Sweitzer and the widow Dowdle. This not on the ground of a verdict being given in evidence, being between the same parties, and on the same points, but as proof how and in what manner Sweitzer came into possession, and that he derived title from the hus- band, after shewing which, how could he contest her right of dower ? It must facilitate her recovery very greatly to have to do with Sweitzer rather than with Meese who claims paramount, and will put her to the trouble of prov- ing title in her husdand as well as in herself. The first so far as respects Sweitzer was already proved by his recover- ing under it. The last could be more easily made out, her right to recover dower in what was her husband's. OF PENNSYLVANIA. 507 How can it be said what weight the widow's testimony had in establishing the original title of her husband ? It was * necessary to the proof, otherwise it would not have been adduced. We are not to suppose that the title could have been established without it ; for where an ounce is neces- sary to make up a pound, there must be that ounce. In a suit for her dower against Meese, claiming paramount to her husband, she must prove the seizin or original title of the husband as against him. But she cannot use her own testimony ; and therefore she will want this to complete the weight, that outweighed before. As against Sweitzer she need not prove original title, and therefore can do without it. She can show the derivation, and the only question can be, has her right of dower passed by the conveyance from her husband or otherwise been taken away, as by a sale for debts &c. This distinction I threw out in the breaking of the case, but it did not seem to be attended to, if it could be answered; but which I thought nevertheless, was the only thing that was to be considered. The counsel appear to me to have been misled by the New Tork cases, and the indistinct manner in which the law is laid down by them. They decide the matter right, at least in the case in 4 John- son, but they do not distinguish in their reasons as I could have wished. If we analyze the case before us, we must see that the widow must have a direct interest in establishing her hus- band's title, because it is only on establishing that title that she can have any right. But it would seem to me that the rejection of Spangler*s deposition was error, and that he could not be said to be interested in the then ejectment. He had covenanted against the heirs of Hahn, but the heirs of Hahn were not deman- dants here, but a claim of title paramount. A warranty may be special, as being against the grantor, or those claiming under him, or against a particular person. It is not any deriving title under the grantor or the particular person warranted against, that here claims. As to the notice it is informally and unskilfully made out ; but I believe it may do. It is directed to all the defen- dants and served upon one. The defendants had all appeared by the same attorney, and defence was taken for them all. 1814. Lessee of SWEITZER v, MEESE et al. 508 1814. Lessee of SWEITZER V. MEESE et al. CASES IN THE SUPREME COURT &c. It is on these two grounds only that I am willing to reverse the judgment. There was something said about personal estate compen- sating the widow in lieu of dower, which I could not com- prehend, unless by interrupting the counsel and asking questions on the law or fact, to which they alluded, but which interruption they did not seem to like ; so that not understanding it, I am obliged to lay this part of the argu- ment out of my consideration. Judgment reversed. END OF JUNE TERM, MIDDLE DISTRICT, 1814. APPENDIX. 609 9 M'CLENACHAN against CUR WEN.* Philadelphia, Saturday, TRESPASS quare clausum free-it. The following case * 7 . . e \ n Tne Common- Was stated for the opinion of the Court, and agreed to wealth has a con- be considered in the nature of a special verdict. iSS at - pike company to lay out a road Under the act of assembly, passed the 9th April 1 792, through the pri- entitled " An act to enable the governor of the Common the e c izen^ith. " wealth to incorporate a companv for making an artificial out m kin g com- . pensatiou tor ** road from the city of Philadelphia to Lancaster, a com- the soil. pany was incorporated by the name stile and title of " The " President, Managers and Company of the Philadelphia & ** Lancaster Turnpike Road," for the purpose of making an artificial road from the city of Philadelphia to the borough of Lancaster, which road was under the authority of that law, laid out by the said Company, over the cleared, tilled and enclosed lands of the plaintiff, situated in Chester coun- ty, and was afterwards made and completed in such manner as in the said act is mentioned. Afterwards, to wit, on the 1st day of August 1794, the defendant, then being superintendant for the said Company, and acting by their commands, entered on the aforesaid land of the plaintiff, along the route or tract so laid out for the said road; and for the length of 100 perches, and in breadth 50 feet, over and along the said route or tract, dug up the cleared and enclosed land of the plaintiff, and overlaid the same with stones and gravel for the said road, and also then and there threw down the enclosure of fence of the said plaintiff, over and across the said route or tract. No appraisement of the land so overlaid, nor of the dam- ages done by throwing down the said inclosure, has ever * This case is inserted at the request of the Chief Justice, from a report in his possession. It is of obvious importance, not merely from its containing some valuable facts connected with the early history of .Pennsylvania, but from itsset- Uing a much litigated point of constitutional law. 510 CASES IN THE SUPREME COURT 1802. M'CLENA- CHAN V. CURWEN. been made, nor has any money ever been paid or tendered to tn - e sa '^ plaintiff for the same, nor was his permission ever obtained for the entry upon, or overlaying the said route or tract, or breaking down his said inclosure. On the llth July 1681, William Penn, the first proprie- tor of Pennsylvania, made and executed a certain instru- ment in writing, entitled " Certain conditions or concessions " agreed upon by William Penn proprietary and governor " of the province of Pennsylvania, and those who are the " adventurers and purchasers in the same province." (Prout the same instrument) (a). No such great roads or highways, as in the said written instrument are mentioned, were first laid out and declared to be for highways, before the dividend of acres was laid out for the purchasers; but in lieu thereof, and with the assent of the said William Penn an$ the adventurers and purcha- sers, an allowance for such roads and highways of six acres for every hundred acres, over and beyond the said quantity of every hundred acres, was from the first settlement of Pennsylvania made by the said William Penn, in all his grants of lands in Pennsylvania, for which said allowance no price or sum of money was ever charged or paid; and a like allowance for the like purpose hath ever since been made by the successors of the said William Penn, and by the state of Pennsylvania. It is agreed, that all acts of assembly of Pennsylvania, whether now in force or not, that either party 'may think material, shall be considered as a part of this case. (a) The only material section of the concessions, is the first, which is in the following terms : "That so soon as it pleaseth God that the abovesaid persons (the proprietary " and adventurers and purchasers in the province) arrive there, a certain quantity "of land or ground plot shall he laid out for a large town or city, in the most " convenient place upon the river for health and navigation, and every purchaser "and adventurer shall by lot, have so much land therein, as will answer to the " proportion which he hath bought or taken up upon rent; but it is to be noted, " that the surveyors shall consider what roads or highways will be necessary to " the cities, towns, or through the lands. Great roads from city to city, not to con- " tain less than forty feet in breadth, shall be first laid out, and declared to be "for highways, before the dividend of acres be laid out for the purchaser,- and " the like observation to be had for the streets in the towns and cities, that there " may be convenient roads and streets preserved, not to he encroached upon by " any planter or builder, that none may build irregularly to the damage of ano- " ther. In this custom governs." OF PENNSYLVANIA. If upon these facts, the law shall be with the plaintiff, judgment shall be rendered for him, and a writ of inquiry of damages awarded tor him ; but if the law shall be with the defendant, then the judgment shall be rendered for him. T. ROSS pro quer. W. LEWIS pro deft. SHIPPEN C. J. now delivered the opinion of the Court; but Yeates ]. being a stockholder of the company, took no part in the decision. This is an action of trespass brought against the superin- tendant of the artificial road, leading from Philadelphia to Lancaster, called the Turnpike Road, for entering upon the cleared, tilled and enclosed lands of the plaintiff, situate in the county of Chester, and digging up the said land for a certain distance, and overlaying the same along the route or tract of the said road with stone and gravel, and for throw- ing down the inclosure of fence of the plaintiff over and across the said route or tract, without having made any compensation for said land, and for the injury done to his improvements. The question turns partly upon the validity, and partly on the true construction, of the act of assembly of the 9th April 1792, impowering the Turnpike Company to make this artificial road. The validity of the act is impeached by its being repug- nant to the constitution of Pennsylvania, which directs that no man's property shall be taken for public use, without his own consent or that of his legal representatives, nor without compensation. To this it is answ.ered, that the road or tract of the road, running through the plaintiff's land, was not his separate property, for that he held it as a trustee for the public, un- der the grant of the proprietaries of Pennsylvania, in which he was allowed beyond the quantity of land actually pur- chased and paid for, six per cent, for roads and highways. This will lead us to consider the different kinds of lawful roads and highways in Pennsylvania. There are and have been for a great length of time, three different kjnds of roads. 1st. The great provincial roads, called in the act of 1700, the " king's highways" or " public roads," which were 511 1802. M'CLENA- CHAN V. CUUWEN. 512 CASES IN THE SUPREME COURT 1 802. laid out by order of the governor and council. 2d. The roads M'CLENA- or cartwa y s leading to such great provincial roads, laid out CHAN by order of the justices of the county courts, after a return v. of certain viewers, that the same was necessary for the con- CURWEN. venience of the public. Such parts of these roads as run through any man's improved ground, were to be paid for out of the county stock. The third kind were called private roads, likewise laid out by order of the county court, on the application of any persons for a road to be laid out from. or to their plantations or dwelling places, to or from the highways. The improved grounds through which these roads were run, were directed to be paid for by those, at whose request and for whose use the same were laid out. As to the first of these roads, called in the act the kin^s highways or public roads, they were one of the objects of what is called concessions made by the first proprietor, Wil- liam Perm, to those original purchasers in England, by whose assistance he expected to found the colony. By this instrument dated llth July 1681, it was agreed that when the adventurers should arrive here, a certain quantity of land, or ground-plat, should be laid out for a large town or city, upon the river Delaware; that every purchaser should by lot have so much land therein as would answer to the proportion which he had bought in the country. But pre- viously to laying the dividends for each purchaser, it was directed, that the surveyor should lay out the great roads from city to city, or to great towns, as well as the streets in the great towns or cities. The grounds to be occupied by these great roads and streets, were evidently to be out of the proprietor's lands alone. On the arrival of the adventu- rers in this country, it was found very practicable to lay out streets in one great city, which was accordingly done ; but quite impracticable to lay out the great roads or highways from city to city, as only one city was then contemplated. But as such great roads were to be laid out over the land of the proprietor alone, and the purchasers were not to con- tribute, it was at length agreed and sanctioned by the early laws of the province, that in lieu of the impracticable plan settled in England, there should be an additional quantity of land granted to each purchaser without price or rent, to enable him to contribute without loss to such public roads OF PENNSYLVANIA. 513 as should thereafter be found necessary for the use of the inhabitants. In this plan there was evidently a chance that " the purchaser might be either a gainer or loser in the event, as it was then, and would probably continue for a long time, uncertain, how much of each man's land would be found necessary for such public roads. The quantity of six per cent, was however fixed as the permanent quantity to be addi d to every man's land for that purpose ; and from that earlv period to the present time, no grant has been made either by the proprietaries or commonwealth, without this addition of six per cent., expressly for the purpose of con- tributing to the establishing the roads or highways. It is true, it is not for these great roads alone, that they are to contribute, as but few of them are necessary; but as by the law of 170O, although a compensation is directed to be made for the improved land of any person, through which the se- cond species of roads or cartways are run, yet as to the woodland or unimproved ground, there is no compensation to be made, evidently contemplating their liability to con- tribute on account of the additional six per cent, granted them to supply the roads and highways ; although in this early arrangement, there might be a chance that certain purchasers might be obliged to contribute more than six per cent, to the roads, yet it might possibly have been fore- seen, that scarce any instance of that would occur, without an equivalent likewise accruing to the purchaser, from the vicinity of such public roads to their buildings and im- provements. Even in the latter law, establishing private roads, the le- gislature appears to have contemplated the same liability in the purchasers to contribute to the roads, the allowance to be made b\ those who use the road being expressly con- fined to the improved lands, through which such roads run; considering, that though they ought to be paid for what by their labour they had made valuable, yet as to the land which lay in a state of nature, they were bound to contri- bute as much of it, as by the laws of the country, were deemed necessary for the public convenience. If then, as to these inferior kinds of roads, the legislature has sanc- tioned the original idea, can it be doubted, that with regard to the great provincial roads, being of so much more gene- VOL. VI. 3 T 1802. M'CLEMA- CHAN V. CURWEN. 514 CASES IN THE SUPREME COURT 1802. M'CLENA- CHAN V. CURWEN. ral utility, they should be exempted from a proportionable contribution? We cannot therefore consider the legislature's applying a certain portion of every man's land for the purpose of lay- ing out public roads and highways, without compensation, as any infringement of the constitution ; such compensa- tion having been originally made in each purchaser's par- ticular grant. But it is objected, that even if the legislature might do this themselves, yet they could not grant the right of doing it, to individuals or a corporate body, for their own emolument, so as to deprive the inhabitants or travellers of the free use of the road, by imposing tolls or other restric- tions in the use of it. To this it may be answered, that such an artificial road, being deemed by the legislature a matter of general and public utility, and considering that it was not to be effected but at a considerable expense, and that the expense could not be defrayed, nor expected to be de- frayed in the ordinary wav, by the inhabitants of the several townships through which the road was to run, they devi- sed this mode of accommodating the public with such a road at the expense of private individuals, who from a pros- pect of deriving some small profit to themselves, might be induced to do it. It was immaterial to the public, whether it was done by a general tax to be laid on the people at once, or by the gradual payment of certain specified sums by way of toll on those only who used the road, the latter being considered as the most equal mode of defraying the charge of making and keeping such road in repair ; for al- though every man has a right to the free use of a public road, yet every member of the community may be taxed for making that road, in any manner that the legislature may think reasonable and just. There has been great difference of opinion at the bar as to the ninth section of the act (a). I have not been without (a) Section nine. " That it shall and may be lawful to and for the said presi- dent and managers, by and with their superintendants. engineers, artists, workmen and labourers, with their tools and instruments, carts, \vaggons, wains and other carriages, and beasts of draft or burthen, to enter upon the lands, in, over, contiguous, and near to which the route and tract of the said intended road shall pass, first giving notice of their intention to die owners ' thereof, or their representatives, and doing as little damage thereto as possible, and repairing any breaches they may make, in the inclosure thereof, and mafc- OF PENNSYLVANIA. 515 my doubts ; but have at length satisfied my mind as to the construction of it. The words in, over, contiguous and near to '.he route and tract of the intended ro.id, appear to me to include both the tract of the road and the adjacent lands ; and th.u the words repairing the breaches they may make in the inclosures thereof, and making amends jw any damages that may be done, to any improvements thereon, likewise relate to both, but may be satisfied without obliging the company to erect new fences on both sides of the road. The general breaches of inclosure would certainly be in cases, where the fences run across the intended road, and these could not be re-erected : but there might be a necessity for taking down fences that run lengthwise along the tract of the road. It not having been unusual in running roads and laying out townships, in order to avoid as much as possible the doing injury to the neighbourhood, to run the roads in the line of two neighbouring tracts, the legislature might reasonably suppose such instances might occur in opening this road ; and it was therefore proper to oblige the com- pany to re-erect the fences by the side of the road. The word repairing seems not to carry the idea of new erec- tions, but restoring what had been prostrated. In opening other roads public and private of any length, it could scarcely be avoided in many instances to lay open inclosures; but it has never been contended, that either the county or private petitioners were obliged to repair them by erecting new fences on the sides of the roads. The mt-m- bers of the legislature must have known this, and would therefore if they had meant it in this case, have provided for it in express words. The truth is, that it has been con- sidered, that the running of a road through a man's land, confers such a benefit on him, as fully compensates him generally, for the expense of fencing his lands anew. 1 ins- amends for any damages that may be done to any improvements thereon, ' by appraisement to be made in the manner herein after directed ; and upon a ' reasonable agreement, if they can agree, or if they cannot agree, thvn upon ' an appraisement to be made upon oath or affirmation, by three indifferent free- ' holders, or any two of them agreeing, to be mutually chosen, or if the owners ' upon due notice shall neglect or refuse to join in the choice, then to be appoint- 1 ed by any justice of the peace of the county not interested on either side, and ' tender of the appraised value, to dig, take, and carry away any stone, gravel, ' sand, or earth, there being most conveniently situated for making or repairing ' the said road." 1802. M' LENA- CHAN V. CURWEN. 516 1802. M'CLENA- CHAN V. CURWEN. CASES IN THE SUPREME COURT I observed before, that the words in, over, contiguous and near to the tract of the road, extended as well to the road itself, as to the adjacent grounds from whence the materials were to be procured, as to the damage done to the inclo- sure ; so likewise I consider it to extend to both, as to making amends for any damages done to the improvements thereon : and if it has in any case been found necessary to pull down houses, destroy orchards, or spoil grain in the tract or route of the road, the company are undoubtedly bound to make compensation to the owners, as well as for the adjacent ground from whence they are to collect the mate- rials. In the present case no such damage is found; and on the whole case it is our unanimous opinion, that judgment should be entered for the defendant. Judgment for defendant. GENERAL TABLE OF CASES IN ALL THE VOLUMES. THE CASES IN ITALICS ARE CITED FROM MSS. Adams, Hayden v. Adams v. Delaware Insu- rance Co. Adams v. Thomas Addicks, Commonwealth v. Addis v. Commonwealth Affleck, Pearce v. Akewright, Lessee of Ma- thers v. Alberty, Dawson v. Alberty, Reinholdt v. Alberti, Mann v. Alexander, Jameson v. Alexander, Common- wealth v. Ammons, Simpson's Les- see v. Ancora v. Burns Anderson, Carkhuffv. Anderson, Vanatta v. Armroyd v. Union Insu- rance Co. Armroyd v. Union Insu- rance Co. Arthurs, Lessee of Kee- ble v. Aubel v. Ealer Aublai v. Renouldt ii 232 iii 287 vi 254 v 520 iv 541 iv 344 ii 93 i 105 i 469 ii 195 v 238 vi 176 i 175 v 522 iii 4 iii 417 ii 394 iii 437 iii 26 ii 582 iv 369 B Bachman's Case - ii 72 Backhouse, Jenk's Lessee v. i 91 Badger, Jones v. v 461 Bailey, Watson's Lessee v. i 470 Bailey v. Watson's Lessee vi 450 Baker v. Bixler iv 213 Baker, Wallace v. - i 610 Baker's Case i 462 Baltimore Turnpike, Case of v 481 Bancker, Boggs v. v 507 Bank North America v. M'Call - iii 338 Bank North America v. M'Call iv 371 Bank North America v. Fitzsimons ii 454 Bank United States, Cra- mond v. i 64 Bank United States, Levy v. i 27 Bantleon v. Smith ii 146 Barber, Dennis v. - - iv 484 Baring v. Shippen ii 154 Barker, Sheriff', Lyle v. v 457 Barker, Commonwealth v. v 423 Barker, Meyer v. vi 228 Barker, Lippincott v. ii 174 Barlow v. The Common- wealth - - iii 1 518 GENERAL TABLE OF CASES. Barnet, Brown v. Barnet v. Hope Barnet, Yohe v. Barry, Crawford v. Barry, Peterson y. Barry, Pearce v. Barry v. Randolph Biixterv. Smith Beale v. Dougherty - Beam, Douglass v. Bear, Lessee of Stephens v. Beam's E.v., Douglass et al. v. Seattle, Roberts' Lessee v. Beauvarlet, Petry v. Beelor, Bell v. Bell v. Beelor - Bell v. Beveridge Benn,Cahill v. Benner v. Frey Berquier, Desesbats v. Berryhill v. Wells Berthon v. Keeley Bet/,, Lessee of James v. Beveridge, Bell v. Bickham's Lessee, Moore v. Biddis v. James Biddle, Lessee of, v. Dougal Bigsby, Lessee of Dawson v Billington Lessee of, v. Welsh Binns v. Hudson - Binns, M'Corkle v. - Birch, M'Millan v. Bixler, Baker v. Blackburn v. Markle Black, Boggs v. Blaine, Commonwealth v. Blair, Stockman v. Blazer, Carson v. Blythe v. Johns Boggs v. Bancker Boggs v. Black Boggs' Lessee v. Silvas Boggs v. Teackle Bohlen v. Delaware Insu- rance Co. 11 v i i iv iv iii vi iii ii iii S3 518 358 481 481 344 277 427 432 76 31 V 60 i 440 i 97 iv 127 iv 127 i 52 vi 99 i 366 i 336 v 56 i 502 ii 12 i 52 iv 1 vi 321 v 142 v 204 v 129 v 505 V 340 i 178 iv 213 vi 174 i 333 iv 186 v 211 ii 475 v 247 v 507 i 333 iv 59 v 332 iv 430 Boileau, Vansant v. i 444 Bond, Lessee of, v. Fitzran- dolph v 214 Bond v. Gardiner - iv 269 Bonsall, Phillips v. - ii 138 Bornman v. Boyer - iii 515 Bowman, Enslin v. vi 462 Boyer, Commonwealth v. i 201 Boyer, Bornman v. iii 515 Boyer v. Herty v 381 Boyles v. Johnston's Execu- tors - vi 125 Brand, Shaller v. vi 435 Brehman, Weishaupt v. v 115 Breidenbach, Haak v. vi 12 Briggs v. Dolan iv 496 Bringhurst v. Cuthbert vi 398 Broome, Sparhawk v. - vi 256 Brown v. Barnet ii 33 Brown, Davidson v. - iv 243 Brown v. Girard i 40 Brown's Heirs, Hartzel v. v 138 Brown v. Lamberton - ii 34 Brown v. Phrenix Insu- rance Co. - iv 445 Brown, Rowley v. i 61 Brown v. Scheaffer - vi 177 Brown, Lessee of Simon v. ii 44 Brown, Lessee of Smith v. iii 187 Brown, Smith v. iii 201 Brown v. Vanhorne - i 334 Bryson, Lessee of Laza- rus v. iii 54 Buchanan's Lessee v. Ma- clure i 385 Bucher, Lessee of Bur- kart v. ii 455 Buckmyer v. Dubs - v 29 Buckwalter, Hamilton v. i 572 Bull, Sterrett v. i 234 Bull, Sterrett v. i 238 Burd v. the Lessee of Dansdale - ii 80 Burd, M'Dowell v. - vi 198 Burnes, Woglam v. i 109 Burns, Ancora v. v 522 Burns, Lessee of Jackson v. iii 75 GENERAL TABLE OF CASES. 519 Burr, Wilkins v. Bush, Clemson v. Bush, Read v. Butler, Cavence v. Cahill v. Benn Caines v. Lessee of Grant Calbraith v. Grade Calhoun v. Ins. Co. Penn. Callan, Commonwealth v. Callenderv. Ins. Co. N. A. Campbell v. Spencer Campbell v. Lessee of Gratz Campbell, Irvine v. Canal Company, Davis v. Canal Company v. Sansorn Canby v. Ridgvvay Carkhuft'v. Anderson Carmack v Commonwealth Cannalt, Commonwealth v. Car others, Lessee of Dun- ning v. Carpeutier v. Delaware Ins, Co. Carson v. Blazer Castator, Reichart v. Castor, Snyder v. Caufman v. Cedar Spring Congregation Cavence v. Butler Caxton, Lessee of Correy v, Cecirs Lessee v. ICorbman Chad's Ford Turnpike u - Chaff'ant, Johnson v. Charnberlin, Richter v. Champneys v. Lisle Cheltenham Turnpike, Commonwealth v. Cheriot v. Foussat Chew, Hiibley's Lessee v. Clark v. Sanderson Clark v. Herring Clark v. Israel Clarke v. Patterson Clark v. Yeat VI iii v vi 389] 413! 455 1 52 vi 99 v 119 i 296 i 293 vi 255 v 525 ii 129 vi 115 vi 118 iv 296 i 70 i 496 iii 4 v 184 ii 235 iii 110 ii 264 ii 475 v 109 ii 216 vi 59 vi 52 iv 140 i 134 v 481 i 75 vi 34 i 327 ii 257 iii 220 iv 59 iii 192 v 33 vi 391 vi 128 iv 185 Clayton v. Clayton iii 476 Clements, Commonwealth v. vi 206 Clemson v. Bush iii 413 Clemson v. Davidson iv 405 Clemson v. Davidson v 392 Cluggage, Lessee of, v. Swan iv 150 Coates v. Hughes iii 498 Cochran, Commonwealth v. i 324 Cochran, Commonwealth v. ii 270 Cochran, Commonwealth v. v 87 Cochran, Commonwealth v. vi 456 Cochran, Patterson's Les- see v. i 231 Colhoun v. Snyder - vi 135 Commissioners of Berks v. Ross iii 520 Commissioners of Berks v. Ross - iii 539 Commonwealth v. Addicks v 520 Addis v. iv 541 v. Alexan- der vi 176 v. Barker v 423 v. Barlow iii 1 v. Elaine iv 186 v. Boyer i 201 v. Callan vi 255 v. Carmack v 184 v. Chelten- ham turnpike ii 257 v. Clements vi 206 v Cochran i 324 v. Cochran ii 270 v. Cochran v 87 v. Cochran vi 456 Connor v. iii 38 v. Cornish vi 249 v. Cornman iv 483 County Com- missioners of Philad. v 5S4 Commonwealth v. County Com- missioners of Philad. v 536 Commonwealth v. County Com- missioners of Lancaster vi 5 Commonwealth v. County Com- missioners of Philad. vi 597 Commonwealth v. Crevor iii 121 520 GENERAL TABLE OF CASES. Commonwealth v. Da vies v. Douglass v. Uuane v. Duane Eaton T. v. Edwards vi v. Emery v. Emery v. Harkness iv v. Holloway v v. Holloway v v. Holloway vi v. Immell Jackson v. v. Johnson v. Judges of Common Pleas iii Commonwealth, Krcemer v. iii v. Lewis v. Long v. Meredith v. Messengeri v. Murray v. North v. Pascalis v. Philanthropic Society v. Profit v. Rosseter Ruhlman v. v. Searle v. Shepherd vi Simmons v. v. Snelling iv v. Smith Spangler v. iii v. Sprenger v. St. Patrick Ben. Soc. ii Sharff v. v. Taylor Turnbull v. Werfel v. White v. White v. v. Wolbert vi v. Wood i 97 Commonwealth v. Young iv 113 i 77 Young v. vi 88 i 98 Connery, Curren v. v 488 i 601 Conner v. Commonwealth iii 38 vi 447 Cookson v. Turner ii 453 vi 202 Cookson v. Turner iii 416 ii 257 Cooper v. Henderson vi 189 ii 431 Cooper v. Ranken v 613 iv 194 Cooper, Taggart v. iii 34 v 512 Cope, Dawes v. iv 258 v 516 Cornish, Commonwealth v. vi 249 vi 213 Cornman, Commonwealth v. iv 483 vi 403 Correy, Lessee of, v. Cax- ii 79 ton iv 140 ii 275 Correy, Gordon v. v 552 Cosby v. Lessee of Brown ii 124 iii 273 County Commiss. Philad., iii 577 Commonwealth v. v 534 vi 266 County Commis. Philad., v 489 Commonwealth v. v 536 v 432 County Commis. Lancaster, r i 273 Commonwealth v. vi 5 iv 487 County Commis. Philad., i 97 Commonwealth v. vi 397 i 37 Cowgill, Mitchell v. iv 20 >pic Cox, Jennings v. i 588 v 486 Cox, Garrigues v. i 592 iv 424 Cramond v. Bank U. S. i 64 ii 360 Cranston v. Philad. Ins. Co. v 538 v 24 Crawford v. Barry i 481 ii 332 Cresoe v. Laidley ii 279 vi 283 Crevor, Commonwealth v. iii 121 v 617 Cromwell, Lessee of Cox v. iii 114 iv 370 Crousillat v. M'Call v 433 iv 117 Crow, Lessee of M'Kinsie ii 105 iii 533 Croxall's Case i 589 v 353 Cumree, Reading v. v 81 k Curry, Lessee of Duncan v. iii 14 ii 441 Curren v. Connery v 488 ii 514 Curwen, M'Clenachan v. vi 509 v 277 Cutshall, Ross's Lessee v. i S99 i 45 Cuthbert, Bringhurst v. vi 398 v 65 iv 418 D vi 179 vi 292 Dallas, Woods v. i 146 iii 414 D'Arcy v. Lyle v 441 GENERAL TABLE OF CASES. 521 IV iv v i iv ii iv v ii iv v iv i Davidson v. Brown Davidson, Clemson v. Davidson, Clemson v. Davies, Commonwealth v. Davis v. Canal Company Davis, Havard v. Davis, Lessee of, v. Keefer Davis v. Marshall Davis, Milne v Davis, Salmon v. Davy, Low v. Dawes v. Cope Dawson v. Alberty - Dawson, Lessee of, v. Bigsby Dawson, Lessee of, v. Laughlin Dean, Kirk v. Dean v. Swoop Debenneville v. Debenne- ville Delancey, Lessee of Lit- tle v. Delaunie, Delaware Ins. Co. v. Delaware Ins. Co., Adams v. iii Delaware Ins. Co., Boh- len v. Delaware Ins. Co., Car- pentier v. Delaware Ins. Co. v. De- launie Delaware Ins. Co. v. Gil- pin Demfisey v. Ins. Co. Penn- sylvania Dennis v. Barber & Co. Dennis, Garwood v. Dennis, Sulger v. Desesbats v. Berquier Devcbaugh, Lessee of Bon- net v. Dickey, Stultz v. Diehl, Smith v. Diffedorffer v. Jones Dilworth/s Lessee v. Sinder- ling 3 U 243 405 392 97 296 406 161 382 137 375 595 258 105 204 214 341 72 46 266 295 287 430 264 iii 295 111 iv Dixorfs Lessee v. Moore- head Dolan v. Briggs Dougall, Lessee of Biddle v. Dougall, Lessee of Biddle v. Dougherty, Beale v. Douglass v. Beam Douglass v. Beam's Execu- tors Douglass, Commonwealth v. Douglass, llgenfritz v. Drum v. Snyder Drum v. Lessee of Simpson Duane, Commomcealth v. Duane, Commonwealth v. Duane, Morris v. Dubosq v. Guardians of the Poor Dubs, Buckmyer v. Ducomb, Lyle v. Duffield v. Smith Duncan v. Keiffer Duncan v. Forrer Dungan v. Mott Dunn v. French Dunvvoody's Adminis., Hus- ton v. Dusar v. Perit Dusar, Welsh v. E iv iv ii v iii ii l iv iii 59 496 37 147 432 76 V 60 i 77 vi 402 i 381 vi 478 i 98 i 601 i 90 i 415 v 29 v 585 vi 302 iii 126 vi 193 ii 201 ii 173 42 361 329 Ealer, Aubell v. ii 582 i 501 Eales, Jack v. iii 101 Eaton, Commonwealth v. vi 447 i 299 Eaton, Heydrick v. ii 215 iv 484 Eberly, Hamaker v. ii 507 iv 314 Ebersoll v. Krug iii 528 ii 428 Ebersoll v. Krug iii 555 i 336 Ebersoll v. Krug v 51 Ebert v. Wood i 216 iii 175 Eckart, Grasser v. i 575 v 285 Eckart, Syler's Lessee v. i 378 ii 145 Eddy's Lessee, Faulkner v. i 188 v 289 Edwards, Commonwealth v. vi 202 Elder, Summerl v. i 106 i 488 Elliot v. Elliofr v 522 GENERAL TABLE OF CASES. Ellis, Hertzogv. Emerick v. Harris Emery, Commonwealth v. Emery, Commonwealth v. England, Lewis v. Englert, Preston v. Enslin v. Bowman Etwein, Rundle r. Evans, Fisher v. Evans, Ross v. Evans v. Smith Evans, Smith v. Evans, Webb v. Ewalt, Lessee of Gratz v. Ewing v. Tees Eyre v. Golding 111 i ii ii iv v vi vi v iii iv vi i ii i v Fairplay, Lessee of Watson, Bailey r. Faulkner v. Eddy's Lessee Felmly, Werdman v. Ferguson v. Phoenix Ins. Co. v Findlay, Lessee of Steele v. Fisher v. Evans Fitzrandolph, Lessee of Bond v. Fitzsimons, Bank of North America v. -* Fitzsimons, Bank of North America v. Fitzsimons v. Salomon Folwell, Smith's Lessee v. Forrer, Duncan v. Fortner, Lessee of Heis- ter v. t Fortune, Harris v. Foster, Kelly v. Foster, Stewart v. Foussat, Cheriot v. Foussat, Snell v. Fox, Grubb v. Fox v. Wiicocks Franklin, Wiltv. Frazer's Lessee v. Hal- lowell 209 416 57 431 5 390 462 136 541 50 366 102 565 95 450 472 1 vi 450 i 188 vi 39 . v 544 iii 181 v 541 v 214 ii 454 iii 342 ii 436 i 546 vi 193 ii 40 i 166 ii 4 ii 110 iii 220 iii 239 vi 460 i 194 i 602 i 126 Frazer v. Tunis Frederitzev. Odenwalder French, Dunn v. French v. M'llhenny French v. Reed Frey, Benner v. G Gabbald, Lessee of Ger- man v. Galbraith, Lessee of Mur- ray v. Galbraith's Lessee v. Scott Gallagher's Ejcrs., Spaf- ford v. Gardiner, Bond v. Garrigues v. Coxe Garrigues v. Reynolds Garrigues, Sparkes v. Garwood v. Dennis Gettig, Girard v. Gibson, v. Ins. Co. Philad. Gibson, Lessee of Rogers v, Gilchrist v. Ward Gilpin v. Del. Ins. Co. Girard, Brown v. Girard v. Gettig Girard v. Heyl Godshall v. Mariatn Golding, Kyre v. Good, Lessee of Fehl v. Gordon v. Correy Gordon v. Kennedy Gordon, Lessee of Moore v. Gorgas, Livezey v. Gorgas, Livezey v. Gourdon v. Ins. Co. JV*. A. Grade, Calbraith v. Graham v. Hamilton Graham, Lessee of M'Clem- mons v. Grant, Lessee of Cainesv. Grasser v. Eckart Gratz, Lessee of Campbell v. Gratz v. Phillips Gratz v. Phillips i 254 iv 15 ii 170 ii 13 vi 308 i 366 iii 302 ii 59 iv 335 i 590 iv 269 i 592 vi 330 i 152 iv 314 ii 234 405 46 41 501 40 ii 234 vi 253 i 352 v 472 ii 495 v 552 ii 287 v 136 i 251 ii 192 i 430 i 296 i 461 iii 88 v 119 i 575 vi 115 i 588 iii 474 GENERAL TABLE OF CASES. 523 Gratz v. Phillips Grayson, Kline v. Greene, Guardians of Poor v. Greenleaf, Hilliard v. Greeves v. McAllister Gregg v. Meeker Gregory, Kennedy v. Grier, Hayes v. Griffith v. Ogle Griffith v. Willing Griffith, Penrose v. Griffith v. Ins. Co. N. A. Grubb v. Fox Grubb, M'Cullough v. Guardians of Poor, Du- bosq v. Guardians of Poor v. Greene Guetner, M'Cullough v. Guier -v. O" 1 Daniel Guier v. Kelly Guier v. M'Faden Gurney, Sims v. H Haak v. Breidenbach Haine, Heckert v. Hallowell, Frazer's Lessee v Hamaker v. Eberly Hamilton v. Buclcwalter Hamilton, Graham v. Hamilton, Lessee of Hus- ton v. Hamilton, Lessee of, v. Marsden Hantz v. Hull Hantz v. Sealy Harkins, Tracy v. Harkins. Stuart v. Harkness, Commonwealth v. Harris, Emerick v. Harris v. Fortune Harris v. Hayes Hartman v. Weiser Hartzell v Reiss Hartzell v. Brown's heirs Hart, Wakely v. v 564 Hassanclever v. Tucker ii 525 iv 225 Hassinger, Schee v. ii 325 Havard v. Davis ii 406 v 555 Hawk v. Harman v 43 v 336 Hawn v. Norris iv 77 ii 591 Hay den v. Adams ii 232 iv 428 Hayes v. Grier iv 80 i 85 Hayes, Harris v. vi 422 iv 80 Hazard v. Israel - i 240 i 172 Hazard's Lessee v. Lowry i 166 iii 317 Hazard v. Amringe iv 289 iv 231 Heacock, Kerlin v. iii 215 v 465 Heckert v. Haine vi 16 vi 460 Hecker v. Jarrett i 374 i 573 Heckerv. Jarret iii 404 Hefferfinger, Lessee of i 415 Myers v. iii 188 , v 555 Heiser, Hughes v. i 463 i 214 Heller, Lessee of Jones v. iv 61 i 349 Henderson, Lessee of ii 294 Cain v.- ii 108 ii 587 Henderson, Lessee of iv 513 Rickets v.- vi 133 Henderson, Cooper v. vi 189 Henry v. Kennedy i 458 vi 12 Herring, Clark v. v 33 vi 16 Herty, Boyer v. v 381 . i 126 Hertzog v. Ellis iii 209 ii 507 Hertzog, Mussina v. v 387 i 572 Hewes, Ins. Co. Penn. v. v 508 i 461 Heydrick v. Eaton ii 215 Heyl, Girard v. vi 253 ii 387 Heyl v. Mitchell iv oj flicks, Pemberton's Les- vi 45 see v. i 1 ii 511 Hilliard v. Greenleaf v 336 vi 405 Mill's Lessee v. West i 486 i 395 Moar v. Mulvey i 145 iii 321 Hodgson's Lessee v. Shearer i 535 iv 194 Hoffman, Snyder's Lessee v. i 43 i 416 Wolliday, Lessee of Drin- i 125 ker v. iii 181 vi 422 iolloway, Pigott v. i 436 i 253 iolloway, Commonwealth v. v 512 i 289 lolloway, Commonwealth v. v 516 v 138 Jolloway, Commonwealth v. vi 213 vi 316 lolme v. Karsper v 469 524 GENERAL TABLE OF CASES. Holmes v. Lessee of Holmes v 253 Jackson v. The Common- Homer, Wenberg v. vi 307 wealth ii 79 Hope, Barnet v. v 518 Jameson, Alexander v. v 238 Horton, Warder v. iv 529 James, Biddis v. vi 321 Howell, Wharf v. v 499 Jarret, Heckerv. i 374 Huber, Shearick v. vi 2 Jarrett, Hecker v. iii 404 Hubley's Lessee v. Chew iv 59 Jenks' Lessee v. Backhouse i 91 Hudson, Binns v. v 505 Jennings v. Cox i 588 Hughes, Coates v. iii 498 Jennings v. Ins. Co. Penn. iv 244 Hughes v. Heiser i 463 Johns, Wilson v. ii 209 Hull, Hantz v. ii 511 Johns, Blythe v. v 247 Hunter, Moore v. iii 475 Johnston's Executors, Hurst's Lessee v. Kirkbride i 616 Boyles v. vi 125 Hurst v. Hurst iii 347 Johnson v. Chaffant i 75 Hutcheson v. Johnson i 59 Johnson, The Common- Hyde, Longenecker v. vi 1 wealth v. ii 275 Johnson, Hutcheson v. i 59 I Johnson, Lessee of Elaine v. iii 103 Ilgenfritz v. Douglass vi 402 Johnson, Ozeas v. i 191 Immel, Commonwealth v. vi 403 Johnson v. Tait vi 121 Ingersoll, Woods v. i 146 Johnston, Thompson v. vi 68 Ins. Co. N. A., Callender v. v 425 Jones v. Badger v 461 Ins. Co. t/V. A., Gourdon v. i 430 Junes, Diffedorffer v. v 289 Ins. Co. N. A., Griffith v. v 465 Jones, Lessee of, v. Heller iv 61 Jones v. i 38 Jones v. Ins. Co. N. A. i 38 v. Jones ii 547 Jones, Ins. Co. N. A. v. ii 547 Kohne v. vi 219 Jones v. Moore v 573 Rousset v. i 429 Jordan v. Meredith i 27 Schwartz v. vi 378 'Judges of Common Pleas, Watson v. i 47 Commonwealth v. iii 273 Ins. Co. Penn., Calhoun v. i 293 Dempsey v. i 300 K v. Hewes v 508 Jennings v. iv 244 Kap, Newman v. v. 78 v. Ketland i 499 Karr, Lessee, of Nesbitt v. iii 181 Ins. Co. Philad., Gibson v. i 405 Karsper, Holme v. v 469 Ireland, Lessee of Moody v. Irish v. The Commonwealth iv iii 31 Kearney v. M'Cullough 91 Keefer, Lessee of Davis v. v iv 389 161 Irish v. Scovil vi 55 Keeley, Berthon v. i 502 Irvine v. Campbell vi Hg Keiffer, Duncan v. iii 126 Irwin, Lessee of Larrimer v iv 104 Keister, San tee v. vi 36 w Israel. Clark v. vi 391 Kelly v. Foster ii 4 Israel, Hazard v. i 240 Kelly, Guier v. ii 294 Israel, Scott v. ii 145 Kennedy, Gordon v. ii 287 Kennedy v. Gregory i 85 J Kennedy, Henry v. i 458 Jack v. Bales iii 101 ' Kennedy v. Lowry i 393 Jack v. Shoemaker iii 280 1 Kenton, a lunatic, case of v 613 GENERAL TABLE OF CASES. 525 Keppele, Lang v. Kerlin v. Heacock Ketland, Ins. Co. Penn. v. Ketland v. Medford Keyser, Priestman v. Kidd, Lessee, of Campbell v. Kimmel, Solomon v. Kintner, Messinger v. Kintzer, Shaeffer v. Kirk v. Dean Kirkbride, Hurst's Lessee v. Kline v. Grayson Knox v. Work Kohne v. Ins. Co. N. A. Korbman, Cecil's Lessee v. Kramer v. The Common- wealth Kreitzer, Shaeffer v. Krug, Ebersoll v. Krug, Ebersoll v. Krug, Ebersoll v. Kyle's Lessee v. White Kyle, Lessee of, White v. Lacombe v. Wain Laidley, Cresoe v. Lamberton, Brown v. Lamberton, Sanderson v. Lane v. Schreiner Langv. Keppele Lapsley v. Pleasants Latimer v. Ridge Laughlin, Lessee of Daw- son v. Lawman, Lessee of, v. Thomas Lawrence ex parte Leather v. Poultney Lessee of Adams, Magee- han v. Lessee of Armstrong v. Morgan Lessee of Biddle v. Dougall ii Biddle v. Dougall Billington v. Welsh v i 123 Lessee of Blaine v. Johnson iii 103 iii 215 Bond v. Stroup iii 66 i 499 Bond v. Fitzran- i 497 dolph v 14 iv 344 Bonnet v. Deve- iii 186 baugh - iii 175 v 232 Brown, Cosby v. ii 124 iv 97 Buchanan v. Ma- i 537 clure i 385 ii 341 Burkart v. Bucher ii 455 i 616 Cain v. Henderson ii 108 iv 225 Campbell v. Kidd iii 186 ii 582 Cecil v. Korbman i 134 vi 219 Cherry v. liubinson iii 189 i 134 C luggage v. Swan iv 150 Correy v. C ax ton iv 140 iii 577 Cox v. Cromwell iii 114 vi 430 Dansdale, Burd v. ii 80 iii 528 Davis v. Keeier iv 161 iii 555 Dawson v. Bigsby v 204 v 51 Daivsonv Laughlinv 214 i 246 Delancey, Little v. v 266 v 162 Dilworth v. Sinder- ling i 488 Dinkle v. Mar- shall - iii 587 iv 299 Drinker v. Holli- ii 279 day iii 181 ii 34 Duncan v. Curry iii 14 vi 129 Dunlop v. Speer iii 169 i 292 Dunning v. Caro- i 123 thers, iii 110 iv 502 Eddy, Faulkner v. i 188 i 458 Evans v. Nargong ii 55 Fehl v. Good ii 495 v 214 Findlay v. Riddle iii 139 Frazer v. Hallo- iv 54 well - i 126 v 304 Galloway v. Ogle ii 468 iv 352 Gardiner v. Schuyl- kill Bridge Co. ii 450 ii 109 German v. Gabbald iii 302 Grant, Caines v. v 119 iii 181 Gratz v. Ewalt ii 95 ii 37 Gratz, Campbell v. vi 115 v 142 Hall v. Vandegrift iii 374 v 129 Hamilton v. Mars- den - vi 45 526 GENERAL TABLE OF CASES. Lessee of Hauer v. Scheetz ii Hazard v. Lowry i Heister v. Fortner ii Henry v. Morgan ii Hill v. West i Hodgson v. Sherer i Holmes, Holmes v. v Hoover v. Schrei- der iii Howard v. Pollock iii Hurst v. R'irkbride i Huston v. Hamilton ii Jackson v. Burns iii James v. Betz ii Jenks v. Backhouse i Jones, Heller v. iv Keeble v. Arthurs iii Kyle v. White i Kyle, White v. v Larrimcr, Irtain v. iv Lawman v. Thomas iv Lazarus v. Brvson iii Maclay v. Work v M't.lemmons v. Graham - iii M'Intire v. Ward v M'Kenzie v. Crow ii M'Knight v. Ying- land ii M'Rhea v. Plummer i Magens v. Smith iv Mathers v. Ake- wright ii Mayor, Aldermen, &c. v. Schuylkill Bridge Co. - iv Miles T. Potter ii Mitchell v. Mitch- ell ir Mitchell v. Ritchell iii Moody v. Ireland iv Moody v. Vandyke iv Moore, Gordon v. v Murray v. Galbraith ii Myers v. Heffer- finger iii Neffv. Neff i 532i| Lessee of JVesbitt v. Karr iii 166' Patterson v. Coch- 40 ran 497 486 535 253 188 189 616 387 75 12 91 61 26 246 162 104 51 54 154 88 296 105 61 227 73 283 65 180 110 31 31 136 59 Pemberton v. Hicks Plumstead, Sproul v. Rickets v. Hender- son vi Roberts v. Seattle i Rogers v. Gibson ii Ross v. Cutshall i Simon v. Brown ii Simpson v. Am- mons i Simpson, Drum v. vi Small, Wright v. ii Small, Wright v. v Smith v. Brown iii Smith v. Fol well i Snyder v. Hoffman i Snyder v. Snyder vi Sprenkel v. Steven- son iii Steele v. Findlay iii Steinmetz v. Young ii Stephens v. Bear iii Stewart, Richard- son v. - iv Sweitzer v. Meese vi Sylerv. Eckart i Watson v. Bailey i Watson, Bailey v. vi "Whitman, Stoe- ver v. - vi Willis v. Bucher ii Wirt v. Stevenson iii Zebach v. Smith Levy v. Bank U. S. Lewis, Commonwealth v. 188 350 Lewis v. England Line, Waggoner v. Lippincott v. Barker Lisle, Champneys v. Litle v. Toland Little v. Lessee of Delancey v Livezey v. Gorgas - i Livezey v. Gorgas - ii HI i vi iv iii ii i vi 181 231 1 189 133 440 46 399 44 175 478 93 204 187 546 43 483 188 181 520 31 198 500 378 470 450 416 455 35 69 27 266 5 589 174 327 83 266 251 192 GENERAL TABLE OF CASES. 527 Lloyd, Lock v. v 375 Maclure, Buchanan's Les- Lock v. Lloyd v 375 see v. i 385 Long, Commonwealth v. v 489 Mageehan v. Lessee of Longenecker v. Hyde vi Lower Dublin School v. Adams ii 109 Magen's Lessee v. Smith iv 73 Paul i 59 Mann v. Albert! ii 195 Low v. Davy - v 595 Mannhardt v. Soderstrom i 138 Lowry, Hazard's Lessee v. i 166 Mariam, Godshall v. i 352 Lowry, Kennedy v. i 393 Markle, Blackburn v. vi 174 Lyle v. Barker, Sheriff v 457 Marsden, Lessee of Hamil- Lyle v. Ducomb v 585 ton v. - vi 45 Lyle, D'Arcy v. - v 441 Marshall, Davis v. v 382 Lyon v. M'Manus - iv 167 Marshall, Lessee of Din- kle v. iii 58f M Marshall, M'Allister v. vi 338 Martin v. Smith - v 16 jyl'Alla, M'Kinley v. - v 600 Martin, Smith v. - vi 262 M'Allister, Greeves v. ii 591 Massey v. Thomas vi 333 M'Allister v. Marshall vi 338 Masteller v. Trembly vi 33 M'Call, Bank N. A. v. iii 338 Mayor's Lessee v. Schuylkill M'Call, Bank N. A. v. iv 371 Bridge Co. iv 283 M'Call, Crousillat v. - v 433 Meade v. M'Dowell v 195 M'Clenachan v. Curwen vi 509 Mease, Wallis v. iii 546 M'Clurg v. Ross v 218 Meason, ex parte v 167 M'Corkle v. Binns v 340 Medford, Ketland v. i 497 M'Cullough -v.Grubb i 573 Meeker, Gregg v. - iv 428 M'Cullough v. Guetner i 214 Meese, Lessee of Sweit* M'Cullough, Kearney v. v 389 zer v. vi 500 M'Cullough, Miles v. i 77 Meredith, Commonwealth v. v 432 M'Cullough v. Young i 63 Meredith, Jordan v. i 27 M'Dowell v. Burd vi 198 Messinger, Commonwealth v. i 273 M'Dowell, Meade v. v 195 Messinger v. Kintaer iv 97 M'Faden, Guier v. ii 587 Meyer v. Barker vi 228 M'Ginnis, Webster v. v 235 Miles v. M'Cullough i 77 M'llhenny, French v. ii 13 Miles v. O'Hara iv 108 M'Intire, Lessee of, v. Ward v 296 Miles v. Wister - v 477 M'Kean v. Shannon i 370 Miller v. Miller iii 39 M'Kee v. Straub ii 1 Miller v. Miller - v 62 M'Kinley v. M'Calla - v 600 Miller v. Ord ii 382 M'Kissom v. Steel iv 16 Milne v. Davis ii 137 M'Knight, Vickroy v. iv 204 Milne v. Moreton vi 353 M'Laughlin v. Scot i 61 Miner v. Tagert iii 204 M'Manus, Lyon v. iv 167 Mitchell v. Cowgill iv 29 M'Millan v. Birch i 178 Mitchell, Heyl v. iv 89 M'Rhea's Lessee v. Plummet i 27 Mitchell's Lessee v. Mitchell iv 180 Mackie v. Pleasants ii 36 Mitchell v. Smith i 110 Maclay, Lessee of, v. Work v 154 Montgomery v. U. S. Ins. Co. iv 445 528 GENERAL TABLE OF CASES. Moody's Lessee v. Ireland Moore v. Bickham's Lessee Moore, Lessee of, v. Gordon v JHoore v. Hunter Moore, Jones v. Moore, Studebacker v. Moore v. Wait Mooreheadj Dtjcon's Les- see v. - Morgan, Armstrong's Les- see v. Morgan, Henry's Lessee v. Morgan v. Stell Morris v. Duane Morris v. Thomas Morrison v. Semple Moreton, Milne r. Mott, Dungan v. Mott, Neilson v. Mott, Passmore v. Moulson v. Rees Mulvey, Hoar v. Murray, Commonwealth v. Murray, Thurston v. Murray, Thurston v. Murray v. Williamson Murray v. Wilson Mussina v. Hertzogr O Myers v. Urich N Nargong, The Lessee of Evans v. Neff's Lessee v. Neff Neilson v. Mott Newton Road, Case of Nichols, Obermyer v. Norris, Hawn v. North, Commonwealth v. North v. Phoenix Ins. Co. Norton, Witman v. Nourse, Walsh v. Numan v. Kap O Obermyer v. Nichols 0' 'Daniel, Gitier v. iv 31 iv 1 v 13 iii 475 v 573 iii 124 i 219 iv 59 iii 181 ii 497 v 305 i 90 v 77 vi 94 vi 353 ii 201 ii 301 ii 201 vi 32 i 145 iv 487 iii 326 iii 413 iii 135 i 531 v 387 i 25 ii 55 i 350 ii 301 v 612 vi 159 iv 77 i 97 iii 457 vi 395 v 381 v 73 vi 159 i 349 Odenwalder, Frederitze v. iv 15 Ogle, ex parte v 518 Ogle, Galloway's Lessee v. ii 468 Ogle, Griffith v. i 172 O'Hara, Miles v. iv 108 Ord, Miller v. ii 382 Overington, ex parte v 317 Overseers of Forks v. Over- seers of Catawessa iii 22 Overseers of Reading v. Overseers of Cumree v 81 Owen v. Shelhammer iii 45 Ozeas v. Johnson i 191 P Packer v. Spangler Parke, Pemberton v. Pascalis, Commonwealth v. Passmore v. Mott Patterson, Clark v. Patterson's Lessee v. Cochran Paul, Lower Dublin School v. Paul v. Vankirk Pearce v. Affleck Pearce v. Shaw Pemberton's Lessee v. Micks Pemberton v. Parke Penns. Ins. Co., Jennings v. Penrose v. Griffith Perit, Dusar v. Perlasca v. Spargella Peterson v. Barry Petry v. Beauvarlet Philad. Ins. Co., Cranston v. Philanthropic Society, Com- monwealth v. v 486 Phillips v. Bonsall ii 138 Phillips, Gratz v. i 588 Phillips, Gratz v. iii 474 Phillips, Gratz v. v 564 Phoenix Ins. Co., Brown v. iv 445 Ferguson v. v 544 North v. iii 457 Y. Pratt ii 308 Snowden v. iii 457 Steele v. iii 306 ii 60 v 601 i 37 ii 201 vi 128 i 231 . i 59 vi 128 iv 344 iv 485 5 i 1 v 601 iv 244 iv 231 iv 361 iii 427 iv 481 i 97 v 538 GENERAL TABLE OF CASES. 529 Pigott v. Holloway Pleasants, Lapsley v. Pleasants, Mackie v. Pleasants, Savage v. Plummer, M'Rhea's Les- see v. Plumsted's Lessee, Sproul v. Pollock, Howard's Lessee v. Porter, Smith v. Potter, Miles's Lessee v. Poultney, Leather v. Pratt, Phoenix Ins. Co. v. Presbyterian Congregation of Cedar Spring, Cauf- man v. Preston v. Englert Priestman v. Keyser Profit, Commonwealth v. Quigley, Shortz v. R Radnor Road, Case of Ralston v. Union Ins. Co. Ramsay, Scott v. Randolph, Barry v. Rankin, Cooper r. Read v. Bush Reading v. Cumree Reed, French v. Rees, Moulson v. Reichart v. Castator Reinholdt v. Alberty Beiley, Wray v. Reinouldt v. Aublai Reiss, Hartzell v. Reynolds, Garrigues v. Richardson v. Stewart's Lessee Riddle, Findlay's Lessee v. Ridge, Latimer v. Ridgely v. Spencer Ridgway, Can by v. Ritchell, MitcheWs Lessee t\ 3 X i 436! iv 502 ' ii 363 V 403 i 227 iv 189 iii 189 i 209 ii 65 iv 352 ii 308 vi 59 v 390 iv 344 iv 424 i 222 v iv i iii v v v vi vi v i v iv i vi iv iii i ii i iii Richter v. Chamberlin vi 34 Rickett's, Lessee of, v. Hen- derson vi 133 Roberts' Lessee v. Beattie i 440 Robinson, Cherry's Lessee v. iii 1 89 Ross's Lessee v. Cutshall i 399 Ross, Commissioners of Berks v. iii 520 Ross, Commissioners of Berks v. iii 539 Ross v. Evans iii 50 Ross, M'Clurg v. v 218 Rosseter, Commonwealth v. ii 360 Rousset v. Ins. Co. N. A. i Rowley v. Brown i Rugan v. West - i Ruhlman v. Commonwealth v Rundle v. Etwein, Russel v. Skipwith Ruston v. Dunwoody's Ad- ministrators 612 386 221 277 613 455 81 308 32 109 469 381 369 289 198 458 70 496 110 429 i 61 i 267 v 24 vi 136 vi 241 i 42 Sailer, Zerger v. St. Patrick Benev. Society, Commonwealth v. Salmon v. Davis Salomon, Fitzsimons v. Sanderson, Clark v. Sanderson v. Lamberton Santee v. Keister Sansom, Canal Company v. Savage v. Pleasants Scheaffer, Brown v. Schee v. Hassinger Schreider, Hoover's Les- see v. iii 188 Schreiner, Lane v. i 292 Schuylkill Bridge Co., Gar- diner's Lessee v. ii 450 Schuylkill Bridge Co., Mayor's Lessee v. - iv 283 Schuylkill Falls Road, Case of ii 250 Schwartz v. Ins. Co. N. A. vi 378 Scott v. Israel - ii 145 vi 24 ii 441 iv 375 ii 436 iii 192 vi 129 vi 36 i 70 v 403 vi 177 ii 325 530 GENERAL TABLE OF CASES. Scot, M'Laughlin. v. Scott v. Ramsay Scott, Galbraiitfs Lessee v. Scovil, Irish v. Sealy, Hantz v. Searle, Commonwealth v. Semple, Morrison v. Shaeffer v. Kreitzer Shaffer v. Kintzer Shaffer v. Sutton Shall er v. Brand Shamoken Road, Case of Shannon, M'Kean v. Sharif, Commonwealth v. Shaw, Pearce v. Shearick v. Huber Sheeler v. Speer Sheetz, Hauer's Lessee v. Shelhamer, Owen v. Shepherd, Commonwealth v. Sherer v. Hodgson Shippen, Baring v. Shoemaker, Jack v. Shoemaker v. Smith Shortz v. Quigley Silvas, Bogg's Lessee v. Simmons v. Commonwealth Simpson's Lessee v. Am- mons Simpson's Lessee, Drum v. Sims v. Gurney Siuderling, Dilworth's Les- see v. Skipwith, Russel v. Small, Wright's Lessee v. Smith's Lessee v. Folwell Smith, Bantleon v. Smith, Baxter v. Smith v. Brown Smith, Commonwealth v. Smith v. Diehl Smith, Duffield v. Smith, Evans v. Smith v. Evans Smith, Magens's Lessee v. Smith, Martin v. Smith v. Martin i 63 i 221 iv 335 vi 55 vi 405 ii 332 vi 94 vi 430 i 537 v 228 vi 435 vi 36 i 370 ii 514 iv 485 vi 2 iii 130 ii 532 iii 45 vi 283 i 535 ii 154 iii 280 ii 239 i 222 iv 59 v 617 i 175 vi 478 iv 513 i 488 vi 241 v 204 i 546 ii 146 vi 427 iii 201 iv 117 ii 145 vi 302 iv 366 vi 102 iv 73 v 16 vi 262 i 110 i 209 ii 239 v 355 iii 69 iii 239 iv 370 vi 135 iii 457 ii 216 i 381 i 43 vi 483 i 138 v 232 Smith, Mitchell v. Smith v. Porter Smith, Shoemaker v. Smith, Stoddart v. Smith, Zebach's Lessee v. Snell v. Foussat Snelling, Commonwealth v. iv Snider, Colhoun v. Snowden v. Phcenix Ins. Co. iii Snyder v. Castor Snyder, Drum v. Snyder's Lessee v. Hoffman Snyder's Lessee v. Snyder Soderstrom, Mannhardt v. Solomon v. Kimmel, Sp afford v. Gallagher's Executors, Spangler v. Commonwealth Spangler, Packer v. Spargella, Perlasca v. Sparhawk v. Broome Sparks v. Garrigues Spear's Road, Case of Speer, Dunlop's Lessee v. Speer, Sheeler v. Spencer, Campbell v. Spencer, Ridgely v. Sprenger, Commonwealth v. Sproul v. Plumsted's Lessee iv Steele v. Phcenix Ins. Co. Steel, M'R'issom v. Stell, Morgan v. Sterrett v. Bull Sterrett v. Bull SprenkeVs Lessee v. Stevenson iii Stevenson, Wirt's Lessee v. iii Stewart v. Foster ii Stewart, Richardson's Les- see v. iv Stewart, Wells v. v Stewart's J&xrs., Wooter- ing -v. i Stockman v. Blair v Stoddart v. Smith v Stoever v. Whitman's Les- see - vi 416 i 590 iii 533 ii 60 iii 427 vi 256 i 152 iv 174 iii 169 iii 130 ii 129 ii 70 v 353 iv 189 iii 306 iv 16 v 305 i 234 i 238 188 35 110 198 325 221 211 355 GENERAL TABLE OF CASES. 531 Straub M'Kee v. " - ii 1 Stroup, Bond's Lessee v. iii 66 Stuart v. Harkins - iii 321 Studebacker v. Moore iii 124 Stultz, v. Dickey - v 285 Sulger v. Dennis ii 428 Summerl v. Elder i 106 Sutton, Shaffer v. v 228 Swan, Cluggage's Lessee v. iv 150 Sweitzer's Lessee v. Meese vi 500 Swoop, Oean v. ii 72 Syler's Lessee v. Eckart i 378 Tagert, Miner v. Taggart v. Cooper Taggart, Toner v. Tait, Johnston v. Taylor, Common\vealth v. Taylor, Young v. Teackle, Boggs v. Tees, Ewing v. Thomas, Adams v. Thomas, Lawman's Les- see v. Thomas, Massey v. Thomas, Morris v. Thompson v. Johnston Thurston v. Murray Thurston v. Murray Tiffin v. Tiffin Toland, Litle v. Toner v. Taggart Tracy v. Harkins Trimbly, Mastellcr v. Tucker, Hassanclever v. Tucker, Wells v. Tunis, Frazer v. Turnbull v. Commonwealth Turner, Cookson v. Turner, Cookson v. Turner, Waddington v. U Union Tns. Co., Armroyd v. ii 394 Union Ins. Co., Armroyd v. .iii 437 iii 204 iii 34 v 490 vi 121 v 277 ii 218 v 332 i 450 vi 254 iv 51 vi 333 v 77 vi 68 iii 326 iii 413 ii 202 vi 83 v 490 i 395 vi 33 ii 525 iii 366 i 254 i 45 ii 453 iii 416 iii 416! Union Ins. Co., Ralston v. iv Union Ins. Co., Wilcocks v. ii United States v. Vaughan iii United States Ins. Co., Mont- gomery v. iv Uriel), Myers v. - i Van Ainringe, Hazard v. iv Vanatta v. Anderson - iii Vandegrift, Hall's Lessee v. iii Vandyke, Moody's Lessee v. iv Vangordon v. Vangordon iii Vanhorne, Browne v. - \ Vankirk, Paul v. vi Van 1 ear v. Vanlear - i Vanlenr v. Vanlear i Vansant v. Boileau i Vaughan, United States v. iii Vickroy v. M'Knight iv W Waddington v. Turner Waggoner v. Line Wait, Moore v. Wakely v. Hart Wallace v. Baker Wallis v. Mease Wain, Lacombe v. Wain v. IVilkins Walsh v. Nourse Ward, GUchritt i: Ward, M'Intire's Lessee v, Warder v. Horton Watson's Lessee v. Bailey Watson v. Ins. Co. N. A. j Webb v. Evans Webster v. M'Ginnis Weiser, Hartman v. Weishaupt v. Brehman Wells, Berryhill v. Wells v. Stewart Wells v. Tucker Welsh, Billington's Les- see v. Welsh v. Dusar in iii i vi i iii iv iii v i v iv i i i v i v V V iii v iii 386 574 394 445 289 417 374 31 506 334 123 76 447 444 394 204 416 589 219 316 610 546 299 110 381 41 296 529 470- 47 565 235 253 115 56 325 366 129 532 GENERAL TABLE OF CASES. Wenberg v. Homer Werdman v. Felraly Werfel v. Commonwealth West, Hill's Lessee v. West, Rugan v. Wharf v. Howell White v. Commonwealth White v. Commonwealth White, Kyle's Lessee v. White v. Kyle's Lessee Whitman's Lessee, Stoe- ver v. - Widdifield v. Widdifield Wilcocks, Fox v. Wil cocks v. Union Ins. Co. Wilkins v. Burr, Wilkins, Wain v. Williamson, Murray v. Willing, Griffith v. Wilson v. John Wilson, Murray v. Wilson v. Wilson Wilt v. Franklin Wister; Miles v. Witman v. Norton Woglam v. Burnes vi 307 Wolbert, Commonwealth v. vi 292 v 39 Wood, Commonwealth v. iii 414 v 65 Woods v. Ingersoll i 146 i 486 Wood, Ebert v. i 216 i 263 Woolering v. Stewart's Exr. i 221 v 499 Work, Knox v. ii 582 iv 418 Work, Maclay's Lessee v. v 154 vi 179 Wray v. Reiley v 381 i 246 Wright v. Small's Lessee ii 93 v 162 Wright v. Small's Lessee v 204 vi 416 Y ii 245 i 194 Yeat, Clark v. iv 185 ii 574 Yingland, M'Knight's Les- vi 389 see v. ii 61 iii 110 Yohe v. Barnet i 358 iii 135 Young v. Commonwealth iv 113 iii 317 Young v. Commonwealth vi 88 ii 209 Young, M'Cullough v. i 63 i 531 Young, Steinmetz's Lessee v . ii 520 iii 557 Young v. Taylor ii 218 i 502 v 477 Z vi 395 i 109 Zerger v. Sailer vi 24 GENERAL INDEX TO THE PRINCIPAL MATTERS IN THESE REPORTS. ABANDONMENT. See INSURANCE, 1. 19, 20. 29. 31. APPLICATION, 9. IMPROVEMENT, 5. An abandonment of land by a person who has paid part of the purchase money, or the surveying fees, is never to be pre- sumed. Lessee of Davis v. Keefer, iv. 165 ABATEMENT. See PARTITION, 2. ACCEPTANCE. See WARRANT AND SURVEY, 23, 24. ACCOUNT. See ORPHANS' COURT, 3. <>ht. Whether when goods are delivered to an agent to sell and remit, the law raises a promise by implication to account, so that an action on the case will lie for not rendering an account, although no ex- press promise was made. Schee v. Has- stnger, ii. 325 ACCOUNT RENDER. 1. Joint partners in a mercantile adventure may have account render against each other by the common law ; tenants in common, by the 27th section of 4 Ann. c. 16, which section has been adopted in Pennsylvania. Griffith v. Willing et al., iii. 317 2. Exceptions to the report of auditors in account render, are too late afterajudg- ment nisi upon the report has become absolute by the expiration of the term in which it was entered. $>u. Whether such exceptions ought not to be taken before the auditors, and prior to any re- port. Gratx v. Phillips, iii. 474 3. In account render, the course of the ac- tion is to take issues before the auditors, upon all matters in discharge of the ac- count, alleged by one party, and denied by the other, which issues are certified to the Court by the auditors, and accord- ingly as they are of law or fact, are de- cided by court or jury. The auditors then regulate their account by the result, and report it to the Court. Exceptions taken to an account reported by auditors, after the same has been returned, are irregu- lar, and of no effect. Crousillat v.Jll'Call, v.433 4. In actions sounding merely in damages, the rule is that the plaintiff cannot reco- ver more than the damages laid in the declaration; but this rule is not applicable to account render, in which the main ob- ject of the action is to obtain an account, and judgment for the arrearages, and in which damages are given only ratione in- terplacitationis. A plaintiff in account ren- der may therefore have judgment for the arrearages to a greater amount than the damages laid in the declaration. Gratz v. Phillips, v, 564 ACKNOWLEDGMENT. See BARON AND FEME ; 3. 5. 8, 9. 11. NOTICE, 1,2. 1. Where a deed has been acknowledged before a magistrate appointed by law to take and certify the acknowledgment, in order that the deed may be recorded, the parties have no right lo make the most trifling alteration in it. Moore v. The Lessee of Bickham, iv. 1 2. It being the intention of the act of 6th April 1802, to prohibit the recording of any deed for land under the Connecticut title, (with the exception of land within the townships, submitted under the act of 1799) the acknowledgment of a deed for land both within and without the townships is wholly void, and cannot be given in evidence, even as to the land within the townships. Irish v. Scovill, vi. 55 534 GENERAL INDEX. ACTION. See BOND, 1. AMICABLE ACTION. 1. Letters of administration granted under seal in a sister state, are a sufficient au- thority to maintain an action in this state. M'Cullough v. Young, i. 63 2. In order to reach the estate of a deceased partner, an action for a partnership debt lies against his executor, if the surviving partner be a certificated bankrupt before action brought. Lang v. Keppele, \. 123 3. One partner cannot maintain assumpsit against the other for the proceeds of a partnership adventure, unless they have settled their accounts and struck a ba- lance. Ozeas v. Johnson, i. 191 4. To support an action on the case for da- mage occasioned by a common nuisance, it is not necessary that the damage sus- tained was immediate; it is sufficient if it was consequential. Hughes v. Heiser, i. 463 5. The prothonotary of a Court cannot main- tain an action for the recovery of his fees in a cause which is still pending. Lyon v. Macmanits, iv. 167 6. The house of Jl and B at Madeira, ship- ped two pipes of wine to Philadelphia, for account and risque of S, to whom a bill of lading was sent. The wine did not arrive until after the death of S, when his executors declined taking it, and re- quested C, who was concerned in the Madeira house, to keep it till it was paid for. It remained in the cellar of C until after his death. It was then delivered by the agent of the executors of C to the wife of S, upon her alleging that it was her property, and that C had kept it in bis cellar for her use. The wife of S sold the wine, and received the price, field, that the executors of C could not maintain an action against the wife of S, for the pro- ceeds of the wine. Wells v. Stewart, v. 325 7. A agreed with B a common carrier, for the carriage of certain goods. B without the direction of A, agreed with C another carrier for the carriage of the same goods; and C without the knowledge or direc- tion of A, agreed with D a third carrier. D lost them. Held, that A might main- tain suit against D, and that by bringing his action he affirmed the contract made with him by C, and could not after that recover from B or C. Sanderson v. Lam- berton. vi. 129 ACT OF ASSEMBLY. When an act of assembly makes innovations on established rules, its positive institu- tions must be precisely pursued. Young v. The Commonwealth, iv. 116 ACT OF FRAUDS. See FRAUDS AND PERJURIES. The act of frauds and perjuries of the state of Pennsylvania does not prevent d de- claration of trust from being made by parol. Hence in an ejectment by the de- visees of A against B, it is competent to give parol evidence of the declarations of Jl, that the land she had purchased in her own name, was bought for the use of B, with money in which her husband had given her only a life estate, and had devised it to B after her death. Lessee of German v. Gabbald, iii. 302 fc ACTUAL. SETTLEMENT. See IMPROVEMENT. 1. Two years after the pacification by Ge- neral Wayne's treaty with the Indians, is a reasonable time for making a settle, ment which has been prevented by the enemy. Lessee of Hazard v. Lowry, i. 166 2. The proviso in the 9th section of the act of 3d April 1792, which excuses a settle- ment in case of prevention by the enemy, also excuses a survey. ib. 3. The want of an actual settlement within two years from the pacification with the Indians, cannot be set up against the t?tle of a warrantee under the act of 3d April 1792, by a person who has taken wrong- ful possession of the land, and before the expiration of the two years has refused to deliver it up to the warrantee. A bare refusal is enough to estop the possessor, without the threat or use of actual force. Lessee of Patterson v. Cochran, i. 231 4. When an actual settler, who has made some improvements, has been deterred by the violence of a younger settler from completing his settlement, and has for. several years neglected to take steps for the recovery of his possession, it is a fact for the jury to decide whether he has not relinquished his settlement. He does not stand in the situation of a person hav- ing a legal title, who may bring eject- ment at any time within twenty-one years. Cosby v. The Lessee of Brown, ii. 124 5. An actual settler cannot support an ejectment without a survey. ib. 6. Jl made application to the secretary of the land office for a tract of land particu- larly described, lying north and west of the Ohio &c. On the 3d of April 1792, a warrant issued, which by mistake of the GENERAL INDEX. 535 office was filled up with lands lying else- where. On the 10th of April 1792 the warrant was delivered to the deputy sur- veyor of the district, who, perceiving the mistake, did not enter the warrant in his book according to its description, but ac- cording to the description in the appli- cation, and surveyed it on the 29th of Jlugust following. Prior to the survey, hut subsequent to the 10th of Jlpril, B made a bona fide actual settlement upon the same land. Held, that the entry made by the deputy surveyor, had no effect against third persons, and that B was entitled to recover. Lessee of Daivson v. Bigsby, \. 204 7. An actual settler cannot maintain an ejectment for his improvement without an official survey, or a private one, if by due exertion he was unable to obtain the former. Stockman v. Blair, v. 211 ADMINISTRATOR. See DEBTS. JUDGMENT, 2 . 1. Letters of administration granted under seal in a sister state, are a sufficient au- thority to maintain an action in this state. M'Ciit'lough v. Toung, i. 63 2. An administrator is chargeable with in- terest, where he has been guilty of ne- glect in not putting out the money of the intestate, or lias used it himself; and it lies upon him to shew what has been done with it. But he is not liable for in- terest until after twelve months from the intestate's death. Fox v. Wilcocks, i. 194 3. Judgments obtained before a justice of the peace, when filed in the common pleas or made known to the administra- tors, must be paid by ihempro ruta with judgments in courts of record. Scott v. Ramsay, i. 221 4. Where there is a naked power to execu- tors to sell, and they renounce, adminis- trators cum testamento annexo, have not, either at common law, or under any act of assembly prior to that of the 12th March 1800, authority to sell, though the object of a sale be the payment of debts. Lessee of Moodij v. Vandyke, iv. 31 5. Administrators, who for their own inte- rest, contest the claim of persons assert- ing thf mselves to be heirs to the intes- tate, are not ir.titled incase of failure, to charge the expenses of the suit to the intestate's estate. It scums otherwise, if the defence is made from a sense of duty as trustees. Hartzctlv. Brown's hei>'s,v. 138 6. Since the act of 1794, an administrator has no right to retain his whole debt against creditors in equal degree, when there is a deficiency of assets. Ex pane Meason, v. 167 AFFIDAVIT RULE. 1. Under the general power of the Com- mon Pleas to regulate its practice, it has authority to make a rule, requiring of defendants an affidavit of defence, and authorizing a judgment, if it is not filed within a certain time. Vanatta v. Ander- son, iii. 417 2. Where there has been an award of arbi- trators, finding that the plaintiff has no cause of action, an affidavit of defence is not required. Gregg v. Meeker, iv. 428 3. The rule for affidavits of defence does not apply to a case in which the defen- dant is an infant. Read v. Bush, v. 455 AGENT. See FRAUDS AND PERJURIES, 3. INSURANCE, 10. AGREEMENT, 6. 1. If an agent indebted to his principal, ships property to him on board a vessel belonging to a third person, (although bound to conform to the agent's orders) and the captain signs a bill of lading de- liverable to the principal, the property thereupon vests in the principal, and the agent cannot countermand or disturb the shipment. Summer! i v. Elder, i. 106 2. The secretary of an incorporated com- pany, who as such signs a lottery ticket for the company, is not personally res- ponsible to the holder. Passmore v. Mott, ii. 201 3. The supercargo of all the shipments but one on board a vessel, and having also the management of the vessel, joined with the captain in putting in a claim for the ship and entire cargo, on their being captured and libelled as prize ; and upoii the acquittal of that particular adventure, he received it subject to the payment of all the costs, expenses, and counsel fees, arising from the capture and trial, which he disbursed out of t!ie proceeds. Held, that lie was intitled to an allowance of those costs &c. , although the owner was in law chargeable only with a part of them. Delaware Insitrar.ee Company v. De- launie, iii. 295 4. A deviation from orders excused by an event not contemplated at the time the orders were given. Dusarv. Perit, iv.361 5. A and B his wife, on the 12th of Dccem- lier 1797, by letter of attorney authorized C and D jointly and severally to make 536 GENERAL INDEX. leases of a large estate belonging- to the wife in the neighbourhood of Philadel- phia. This power was recorded on the 15th of September 1799, and C acted se- parately under it, making various leases for 99 years, and receiving the rents. On the 30th of November 1801, Jl and B executed another power to the same effect, to C, D, and E, or any two of them jointly, but not severally. This power was known to C on or before the 5th of May 1802 ; D declined acting, and E accepted the power merely to prevent C from acting alone ; but the power was never recorded, nor any public notice given of it, nor was any lease or convey, ance ever made under it. C resided on the estate as usual, collecting the rents, and making leases as formerly ; and on the 9th of June 1802, he leased the pre- mises in the ejectment, to the defendant, for ninety-nine years, reserving a fair rent at the time. Held, that as between the principals and their attorney C, the second power was a revocation of the first ; but the defendant being a ba/nafide purchaser without notice, and the prin- cipals being guilty of great negligence in taking no steps to give notice of a revocation, when the first power was so notorious, it was not to be considered a revocation as to him, and therefore he was intitled to hold the land. Morgan v. Stell, v. 305 6. Damages incurred by an agent, without his own fault, in the management of the principal's affairs, or in consequence of such management, must be borne by the principal. Hence, where Jl, the agent of B, recovered certain of B's goods in Cafe Francois, by the decree of a competent court there, (the same having been at- tached by C for the debt of D and Co. in whose hands they were, and claimed in court by A) and then sold them and remitted the proceeds to B ; and was afterwards in a suit instituted by C, and connected with the first proceeding, com- pelled by the threats of the president Cftrittofhe, to confess, contrary to the truth, that at the time of receiving the goods, he promised to pay C a sum of money on account of 2) and Co., and to let judgment go against him, it was held, that A might recover from B his princi- pal the amount thus paid, it not exceed- ing the estimated value of B's goods. IfArcy v. Lyle, v. 441 7. It seems that an attorney who is not authorized by writing under seal, cannot execute a deed of release 'under seal,' in the name of hif principal ; but if he does execute such a deed, though it cannot be given in evidertce against tlie princi- pal under the issue of nan ettfactum, yet it may be under the issue of non assump- it as amounting to an agreement not to sue. Cooper v. Rankin, v. 613 8. A charter party was entered into by B, acting on behalf of the owners of the ship, almost all the covenants in which were expressed to be made by him as agent for the owners ; but the owners were not parties, nor were they named in any part of the instrument. At the con- clusion the charter party said, " for the "performance of all the covenants before " mentioned, the said parties respectively " bind themselves personally each to the " other." The vessel, her tackle, and ap- parel, were bound for the due performance of her owners mid agents or agent to the charterer, and her freight was made pay- able to the agent or his order. Held, that the agent was personally responsible for his covenants. Meyer v. Barker, vi. 228 9. If a person, who is u.ndti no obligation to execute an order of insurance, never- theless undertakes it, and executes it defectively, he is answerable for the loss. French v. Reed, vi. 308 10. If the general agent of ship and cargo, covers enemy property on board, the warranty of neutrality in a policy on the ship, is violated. Schwartz v. Ins. Co. AT. A., vi. 378 AGREEMENT. See AMENDMENT, 1. FRAUDS AND PERJURIES, 3. ARTICLES OF AGREEMENT. LANDLORD AND TENANT, 6. SALE, 6. 1. If a forged check is credited as cash in the holder's bank book, and afterwards 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 agree- ment. Levy v. The Bank of the United States, i. 27 2. A contract for the purchase and sale of lands in Pennsylvania under the Connecti- cut title, is unlawful and void, although the act of April llth 1795, neither ex- pressly says so, nor contains any clause prohibitory of the contract, but merely inflicts a penalty on the offender. MitcJiell v. Smith, i. 110 3. An agreement by a surety to forbear a suit against his principal, after he shall have paid the principals debt, is a good con- sideration to support a promise, although at the time of the agreement the surety had no cause of action against the prin- cipal. Hamaker \. Eberley, ii. 506 GENERAL INDEX. 537 4. An express agreement prevents the im- plication of a promise which the law would otherwise make. Duncan v. Keif- fer, iii. 126 5. The court will take notice of an agree- ment to stay execution, although it be not entered of record, so as to supersede the necessity of a scire facias post annum et diem. Lessee of Dunlop v. Speer, iii. 169 6. Jl went as supercargo from Philadelphia to Batavia, under an agreement, which so far as respected his compensation, was thus : " The commission which is to " be 4 per cent, on the investment, is also "to be paid in Batavia, and invested on " account of A" Jl died thirty-six hours after his arrival in Batavia, without hav- ing made any investment of the cargo. Held that he was intitled to a proportion- ate compensation, deducting from the whole commission of 4 per cent., what it would cost the shippers to complete the investment at Batavia. We.lsh v. Dusar, iii. 329 7. The agreement between shippers, owner and supercargo, after stating the propor- tions of the shippers, and the object of the shipment, proceeded thus: "The ' freight, which is to be 25 per cent., on ' the sum shipped, is to be paid in Bata- 1 via, and invested in the said ship on 'account of If the owner. " The com- ' mission which is to he 4 per cent. r,n ' the investment is also to be paid in Jia- ' tavia, and invested on account of -2" the supercargo ; "but after the property of " the shippers is all on board." Held that neither Jl nor D was intitled to a prefer- ence in the loading of- their goods on board the ship, and the ship being nearly full with the goods of the shippers, A and D must load in proportion to their interests. iii. 329 8. Where a party has agreed to enter into an amicable action for the trial of a cer- tain question, the Court will direct the action to be entered, even against the party's will. Bond v. Gardiner, iv. 269 9. A brought a suit against B, and then entered into an arrangement with him, by which it was agreed that the suit should be discontinued, and an amicable action against K be brought to the same term. C thereupon covenanted with A, that if he should recover any sum of money in the amicable action intended to be brought against B, in pursuance of the agreement, B should pay the amount on demand, C binding himself and his heirs to A for the payment. B was de- clared a bankrupt, and obtained his cer- tificate. A applied to the Court for leave VOL. VI. 3 Y to discontinue the first action, and to enter an amicable action, which was granted against the consent of B, who nevertheless appeared, and pleaded his certificate. The Court struck oflf'the plea, upon ~l's agreeing not to take out execu- tion against B upon any judgment lie might recover in that suit. They also re- fused to receive evidence of the certifi- cate upon the trial, and judgment was finally entered against B. 7/e/Jthat C was answerable under his agreement, not- withstanding the certificate of B, and the entry of the action against his con- sent, and the agreement not to take out execution against him. The proceedings in the suit between jl and B cannot, be examined in the suit between A and C, but must be presumed correct, until the judgment against B be reversed. But if examinable,the entry of the action against Ji's consent, the striking oft' the plea, and the refusal of the evidence under the terms agreed to by Jl, were right, iv. 269 10. Agreement of attorneys in the Court below, to abide by the opinion of a pro- fessional gentleman, upon the question whether restitution of the premises should be made to the plaintiff in error from whom they had been taken by a habtre facias, enforced by the court of error. Cahillv. Benn, vi. 99 11. If the plaintiff agrees to discontinue, in consideration that the defendant will not file a bill against him, this Court, if the defendant performs his engagement, will stay proceedings in the suit, and order an exoneretur of the bail. Wilkins v. Burr, vi. 389 ALIEN. 1. An alien who has resided in Pittsburgh one year next p-eceding an election for borough officers, and has wit!, in that time paid a borough tax, is entitled to vo'e at such election. Ste-cart v. Foster and others, ii, 110 2. The argument for excluding aliens from the privilege of voting at borough elec- tions is not so forcible in Pennsylvania as it would be in England, because Penn- sylvania, both under the proprietary go- vernment, and since her independence, has held out encouragement to aliens, unknown to the principles of the common law. ii. 118 3. A British antenatus is incapable of taking lands by descent within the state of Penn- sylvania. Lessee of Jackson v. Burns, iii. 75 ALIEN ENEMY. See PLEADING, 20. 538 GENERAL INDEX. ALIMONY. 1. An order of alimony upon a divorce a inensa et thoro, continues in force only until the reconciliation of the parties. If therefore the wife return* at the solici- tation of the husband, and cohabits with hirn but for five weeks, and then leaves him without just cause, she loses her right to alimony. Tiffin v. Tiffin, ii. 202 2. Quin v. England, iv. 5 2. Where an act of assembly says that a party shall not recover costs, arbitrators cannot give them to him. ib. 3. Where there has been an award of arbi- trators, finding that the plaintiff" has no cause of action, an affidavit of defence is not requisite. Gregg v. Meeker, iv. 428 4. Arbitrators have no authority to award a nonsuit. If the plaintiff' fails to attend, the proper award is that he has no cause of action. Miller v. Miller, v. 62 ARREST. , See WARRANT. An arrest may be made for felony without warrant, notwithstanding sec. 7. art. 9. of the constitution ; and a private person may make it at his peril : but qiwe if he can arrest for misdemeanor, e. g. for re- ceiving stolen goods. IVukely v. Hart, vi. 316 ARTICLES OF AGREEMENT. See AGREEMENT, 9. Where articles of agreement have been entered into for the sale of lands, the ven- dee, upon tender ofthe purchase money, may enforce them by ejectment. Rar^on v. J\'orris, iv. 77 ASSIGNEE. See OBLIGATION, 2. 1. The Courts of Common Pleas, have power under the act of 14th February 542 GENERAL INDEX. 172930, for the relief of insolvent debtors, to appoint new asignees, where those first appointed refused to act; and to compel the first assignees to convey their interest to the new. . But the mere ap- pointment of new assignees by the Court does not vest the insolvent's lands in them, so that they may support an eject- ment. Cooper v. Henderson, vi. 189 2. The trustees of an insolvent debtor may institute an ejectment, without stating their character upon the record. ib. ASSIGNMENT. See SET OFF, 2, 3. 1. On the same evening after a considera- ble verdict is obtained against A, he con- veys all his property to a trustee of his own choice, for the benefit of all his cre- ditors in equal proportions. The trustee lives at a distance, and does not hear of the deed until four days afterwards, when he assents. No possession of the title deeds is given until nearly two months after, and the debter continues in possession of the furniture and goods the next day after the execution of the deed, which was Sunday, and part of Monday, when they were taken in exe- cution. The deed contains no schedule of property, and no limitation of time for distributing the estate. Held 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 non-delivery of the goods is explained. Wilt v. Franklin, i. 502 2. Although it is most prudent and proper for the debtor to consult kis creditors as to the choice of a trustee, when it can be done without great inconvenience, yet where there is no bankrupt law existing, there is no law which forbids the debtor to make the choice himself. i. 502 3. A Schedule is more necessary where part of a debtor's property is conveyed to par- ticular 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 conclu- sive evidence of fraud. . i. 502 4. An assignment by a debtor, of all his pro- perty to trustees for the benefit of such creditors as should within a given time execute a release of all demands, is good, if certain of the creditors agree to ac- cept it upon that condition, and is a trans- feTof the property for their use from the time of acceptance. If therefore &f..fa. issued after the acceptance, but before the execution of a release by any credi- tor, be levied upon the goods assigned, the sheriff is a trespasser. Lippincott v. Barker, \\. 174 5. Quaere. Whether an assignment which stipulates for a release to the debtor, is valid upon general, principles. ib. 6. The general principle with regard to the assignment of personal chattels is, that where the deed contains an absolute im- mediate assignment, it is necessary that possession should accompany and follow it, otherwise it is fraudulent both at com- mon law, and under the statute of 13 Eliz. But only such possession is requi- site as the nature of the thing admits of. Therefore in the case of goods shipped for a foreign port, the delivery of the bill of lading and policy of insurance will answer in the first instance, provided the claim of the assignee is followed up with reasonable diligence. If it is not, the as- signment becomes invalid, as against cre- ditors. Datxes v. Cope, iv. 258 7. Where a deed or conveyance is condi- tional, or to take effect at some future time, the retaining of the possession, ac- cording to the intent of the deed, is not fraudulent. ib. 8. The assignment of an insolvent debtor passes all his property, whether mention- ed in the schedule annexed to his peti- tion, or not. Cooper \. Henderson, vi. 189 9. An assignment executed by an insolvent debtor, with an understanding, that part of the property assigned shall be convey- ed to trustees for the use of his family, is so far as it respects the property con- veyed in trust for the family, fraudulent and void as to all creditors who do not assent to the arrangement ; and the non- assenting creditors may take it in execu- tion. McAllister v. Marshall, vi. 338 ASSIZE OF NUISANCE. 1. An assize of nuisance cannot be removed from the Common Pleas to the Supreme Court, by habeas corpus. Livezey v. Gor- gas, i.251 2. An assize of nuisance commenced in the Common Pleas, may be removed by cer- tiorarito the Supreme Court, the judges of which have jurisdiction as justices of assize, and may if necessary resummon the same jury who viewed the nuisance by command of the court below. Livezey v. Gorgas, H. 192 ASSUMPSIT. See PARTNERS, 2. 1. When the terms of a special agreement to do a certain thing for a certain sum, GENERAL INDEX. 543 have been performed by the plaintiff, the law raises a duty in the defendant, for which indebitatus assumpsit will lie. Kelly V. Foster, ii. 4 2. The plaintiff declared in indebitatus as- sumpsit for work and labour, and proved a promise by the intestate to pay him 200/. if he would live with him until the intestate's death, which he accordingly had done. Held that the general count was supported by the proof. ib. 3. In an action of indebitatus assumpsit, the defendant may demand of the plaintiff to specify the nature of the evidence he means to offer, and until this is done, the Court will not suffer the plaintiff to bring on the trial. ii. 7 4. A moral or equitable obligation is suffi- cient consideration for an assumption. Clark v. Herring, v. 33 5. Assumpsit will lie for an ascertained money legacy ; and the plaintiff may in the same count go for an unascertained residuary legacy. ib. ATTACHMENT DOMESTIC. The sheriff is not, by a domestic attach- ment, invested with the rights of the defendant, in property that has been pledged by him. He is quoad hoc a stran- ger, and liable in damages to the same extent in case of a trespass. Lyle v. Bar- ker, v. 457 ATTACHMENT FOREIGN. See SET OFF, 1. LACHES, 2. 1. If the garnishee in a foreign attachment pay over to the plaintiff the debt attach- ed, without being compelled by due pro- . cess of law, and without requiring the stipulation ordered by act of assembly, it will not discharge him from the original debt. Myers v. Ulrick, i. 25 2. Upon the plea of nulla bona to a scire facias against a garnishee, the jury must find tike specific goods in the garnishee's hands; a verdict finding goods of a certain value in the defendant's hands, is bad. But if they find the goods, they may also find their value, to save the necessity of a special inquest. Crawford v. Barry, i. 481 3. The Court will not dissolve a foreign attachment merely because there has been no writ of inquiry executed for fourteen years, if the delay is acccounted for. Cooison v. Turner, ii. 453 4. If a creditor of A lays an attachment upon goods which appear as the property of A, but wherein B has nevertheless an interest, which he communicates to the creditor before the attachment is laid, the creditor is bound to refund B his proportion of the money recovered un- der the attachment, notwithstanding the judgment of a competent court decreed the whole to him as the property of Jl. Bank of North America v. M'Call, iii. 338 5. Shitere, whether it is the same with an equitable assignee of Jl, who gives no notice of his claim until after the attach- ment, tb. 6. Stock of the Bank of the United States, which has been sold bona Jide, and the certificate delivered to the purchaser with a power of attorney to transfer it upon the books of the bank, is not liable to attachment as the property of the ven- dor, although it is standing in his name on the books of the bank, at the time of the attachment. Ttie United States v. Vaughan, iii. 394 7. A chose in action which has been equi- tably assigned, is not subject to attach- ment as the property of the assignor, ib. 8. The plaintiff in a foreign attachment stands upon no better footing as to the thing attached, that his debtor, the de- fendant in the attachment. ib. 9. There is no necessity fora scire facias to revive a judgment in foreign attachment. Cookson v. Turner, iii. 416 10. There is nothing so contrary to reason in the attachment of the property of a man who is dead, as to invalidate the proceeding for that cause, provided the law of the forum where the suitis brought, permits it. Bank of North America v. M'Call, iv. 371 11. >iiu. Whether it is necessary that it should appear at all on the face of the certificate, that the contents of the deed were made known to the wife. ib. 11. The certificate of an acknowledgment by husband and wife, that an indenture was their act and deed, which they de- sired to be recorded as such, " she the " said (wife) being of full age, separate " and apart from her said husband ex- " amined, and the full contents made " known to her, voluntarily consenting " thereto," is good. Shaller v. Brand, vi. 435 12. If the husband has access to his wife, no evidence short of his absolute impo- tence can bastardize the issue ; but if they live at a distance from each other, so that access is very improbable, the question of legitimacy may be decided on a consideration of all the circumstan- ces. Commonwealth v. Shepherd, vi. 283 13. A husband cannot be a witness, where, inconsequence of his testimony, his wife may receive a benefit after his death. Lessee of Snyder v. Snyder, vi. 483 14. >u. Whether a feme covert is a good witness to support the title of a grantee from her husband, when her right of dower has not been released. Lessee of Svueitzer v. J\fieese t vi. 500 BARRATRY. 1. Any trick, cheat, or fraud, and any crime or wilful breach of law committed by the captain to the prejudice of his owners, is barratry. Wilcox v. the Union Insurance Company, ii. 574 2. The rescue of a neutral vessel by her own crew, from the hands of the cap- tors who are taking her in for adjudica- tion, is an act of barratry. id. BASTARD. 1. The time during which the reputed fa- ther of a bastard child shall be ordered to maintain it, is entirely within the dis- cretion of the Sessions, who are not bound by any practice however uniform, that may have been adopted by them- selves or other courts upon the subject. Addis v. The Commonwealth, iv. 541 2. If the husband has access to his wife, no evidence short of his absolute impotence can bastardize the issue ; but if they live at a distance from each other, so that access is very improbable, the question, of legitimacy may be decided on a con- sideration of all the circumstances. Com- mon-wealth v. Shepherd, vi. 283 BEES. So long as wild bees remain in the tree where they have hived, notwithstanding the tree is upon the land of an individual, and he has confined them in it, they are not the subject of a felony. Wallis v. Mease, iii. 546 BILL OF EXCEPTIONS. 1. A bill of exceptions to the charge, may be tendered at any time before the jury have delivered their verdict in open court. Jonesv. The Insurance Co- of North America, i. 38 2. A bill of exceptions does not lie to the opinion of the Court, in receiving or re- jecting testimony upon a motion for sum- mary relief. Shorts v. Qtigley, i. 222 3. A bill of exceptions lies to the opinion of the Common Pleas, upon the trial of a feigned issue from the Register's Court. Vansant v. Boileau, i. 444 4. If a judge in his charge expresses an opinion upon facts, which is not warrant- ed by the evidence, the remedy is by a 548 GENERAL INDEX. motion for a new trial, and not by a bill of exceptions. Burd v. The Lessee of Dans dale, ii. 80 5. The refusal of the Court to order a non- suit, is no ground for a bill of exceptions. Girard v. Getting, ii. 234 6. No advantage can be taken by bill of exceptions, of an erroneous opinion on a point of law immaterial to the issue ; but the plaintiff in error may assign error in an opinion on any point material to the issue, appearing on the bill of exceptions, although it was not particularized in stating the exceptions below. The Phcmix Insurance Company v. Pratt, ii. 308 BILL OF EXCHANGE. 1. It seems that the acceptor of a forged bill is bound to pay it, not upon the prin- ciple that his acceptance has given a credit to the bill, but because it is his duty to know the drawer's handwriting, which he is precluded from disputing. Levy v. Bank of the United States, i. 27 2. A drevr a foreign bill of exchange in fa- vour of B, and with his blank indorse- ment on it, handed it over to C as a security for an unascertained balance supposed to be due from A to C. C deli- vered the bill to D, to be remitted to the drawee for acceptance and payment, taking from him a memorandum acknow- ledging the receipt of the bill, and pro- mising to pay C the amount, deducting a certain discount, when advice should be received of its payment. Shortly after- wards, C assigned the memorandum to JE as a security. The bill was protested, and on its return was delivered to E, who brought an action against B the indorser. Held, that E did not take the bill in the usual course of trade, but sub- ject to every equity that there was be- tween the original parties ; and therefore that he could recover no more on the bill, than the balance due from A to C. Evans v. Smith, iv. 366 3. The holder of a bill must use reasonable diligence to ascertain the residence of the drawer, for the purpose of giving him notice of its dishonour. It is not sufficient to look for the drawer at the place where the bill is dated, if his residence is else- where. Notice left with the family of a seafaring man, during his absence at sea, is sufficient. Fisfier v. Evans, \. 541 BILL OF LADING. If an agent indebted to his principal ships property to him on board a vessel belong- ing- to a third person, (although bound to conform to the agent's orders,) and the captain signs a bill of lading deliverable to the principal, the property thereupon vests in the principal, and the agent can- not countermand or disturb the ship- ment. Summeril v. Elder, i. 106 BLOCKADE. A vessel sails from Charleston to Cadiz, without any notice of its being in a state of blockade, and within a short distance of the port is brought to by the blockad- ing squadron, and warned 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 board, with orders to stay by the fleet. Ten days afterwards the captain is taken out of her, and carried to the admiral of the fleet, who says to him, " We have ' thought of setting you at liberty ; and in case we do, what port will you pro- ceed for ?" The captain replies, " in case I receive no new instructions, I shall follow my old ones." "That I ' suppose will be for Cadiz." " Certainly, ' unless I have new orders." This is not an attempt to enter, and therefore no breach of blockade. >u. Whether any declaration of an intention to enter, amounts to an attempt. Calhoun v. The Insurance Company of Pennsylvania, i. 293 BOARD OF PROPERTY. See APPLICATION, 5. The board of property has the same judi- cial power, in regard to donation lands, as in other cases ; and after they have deliberated and decided against issuing patents, a mandamus does not lie to compel them. Commonwealth v. Cochran, vi. 456 BOND. See PLEADING, 1. 6, 7- EVIDENCE, 24. 1. Where the condition of a bond is for the payment of interest annually, and of the principal at a distant day, the interest may be recovered before the principal is due, by an action of debt on the bond. Sparkes v. Garrigues, i. 152 2. A bond is a proper subject of a donatio causa mortis. Wells v. Tucker, iii. 366 BOTTOMRY. 1. To constitute a bottomry, where the interest reserved is more than legal in- terest, it is essential that the money lent and interest should be put at risk. If they GENERAL INDEX. 549 are payable at all events, or if there is collateral security given for them which is payable at all events, no matter by what name the contract is called in the instrument of writing which contains it, it is not a bottomry. Jennings v. Ins. Co. Penns. iv. iJ44 2. Qu- 435 89. If the same writing that admits the sur- GENERAL INDEX. 567 vivorship of the wife, and her being still alive, asserts that she has released her dower, and it is used as evidence at all, it is evidence that the right of dower is not outstanding. Shatter v. Brand, vi. 435 90. In an action for mesne profits, the re- cord of the judgment in ejectment is con- clusive evidence that the defendant was in possession at the time the ejectment was brought, and also as to the title dur- ing the whole time laid in the demise ; but it is not evidence of the length of time.- that the defendant was in posses- sion. Bailey v. Fairplay, vi. 450 91. The certificate of the commissioners in favour of a Connecticut claimant, stating that he or those under whom he claims, were actually so settled and resident, does not conclude a Pennsylvania claim- ant. Enslin v. Bowman, vi. 462 92. Declarations made by the grantor to the grantee after the execution of a deed of trust, but before the grantee had ac- cepted it, are evidence to alter or con- tradict the trust. Drum V. The Lessee of Simpson, vi. 478 93. Copy of a cancelled bond in the defen- dant's possession, is after notice and re- fusal to produce the original, good evi- dence of the matters contained in the condition, without first shewing how the bond came to be cancelled. ibid. EXCEPTIONS. Exceptions to the report of auditors in account render, are too late after a judg- ment nisi upon the report has become absolute by the expiration of the term in which it was entered. Quart, whether such exceptions should not be taken be- lore the auditors, and prior to the report. Gratz v. Phillips, iii. 474 EXCHANGE. See BILL OF EXCHANGE. EXECUTION. 1. After an inquest has returned that the rents and profits will pay in seven years, the plaintiff cannot discontinue hisjf. fa. and take out a new one, without leave of the Court. M* Cuttough v. Guetne r, i.214 2. If a plaintiff levies a fi. fa upon the defendant's lands, and then charges him in execution upon a ca. sa., either they?. fa. or ca. sa. may be set aside at the elec- tion of the defendant ; but if he submits to the ca. sa., and obtains a discharge from it by the insolvent law, then fa and all the proceedings under it are gone; and if the plaintiff sues out a vendi' tioni exponas and sells, the Court will not permit the sheriff' to acknowledge a deed to the purchaser. Young v. Taylor, ii. 218 3. An execution within a year and a day, continues the lien of a judgment, with- out resorting to a scire facias under the act of 4th April 1798. " ii. 218 4. The defendant in a suit before a justice of the peace, is entitled to enter special bail to obtain a stay of execution, after the twenty days allowed for an appeal have expired, provided an execution has not already issued. Mann v. Jllberti, ii. 195 5. If execution is stayed by agreement of the parties, the " year and day" runs only from the time when such stay ex- pires; and this, whether there is an entry of the cesset on the record, or it is a mat- ter of private arrangement out of court. The Court will take notice of such an agreement, though it is not on record. Lessee of Dwilop v. Speer, iii. 169 6. Supposing a single judge of the Common Pleas to have a right to discharge a de- fendant who is in execution from that court, still if he does it without notice to the plaintiff, the proceeding is void, and the defendant may be retaken in execu- tion. Hecker v. Jarret, iii. 404 7- If a defendant upon being first taken in execution, omits to shew property upon which a levy may be made, and he is afterwards illegally discharged and re- taker, upon the same execution, an offer to shew property, is then too late. ibid. 8. Notwithstanding the acts of assembly which exempt the person of a debtor from execution if he has property suffi- cient for the debt, the plaintiff may take out a ca. sa. in the first instance, at his peril. iii. 407 9. If special bail has been entered at the commencement of a suit, in a sum suffi- cient to secure the amount which has been awarded by arbitrators in the cause, it is not necessary for the defendant to enter special bail de novo to entitle him- self to a stay of execution for thirty days under the acts of assembly. Perlasca v. Spargftla, iii. 427 10. Where one plaintiff dies after judg- ment, the survivor may have execution without scire facias, suggesting the death of his co-plaintiff on the record, or recit- ing it in the writ. Secus, if the survivor is a feme, who afterwards takes baron. Berry hill v. Wells, \. 56 11. A return to a/, fa. " levied on grain, 568 GENERAL INDEX. " household furniture &c. (described) " and left at the plaintiff's risk," is not evidence that the judgment was com- pletely satisfied, so as to snake an alias for the residue void. Little v. The Lessee cfDelancey, \. 266 12. A general return of " levied on goods " as per inventory," does not, by the practice in Pennsylvania, discharge the defendant, and make the sheriff liable for the whole debt. He is liable only for the value of the goods upon which a levy was made, or might have been -made; and on his paying the nett sales, an alias goes for the residue, without application to the Court. ibid. 13. A defendant is not entitled to a stay of execution under the act of the 21st of March 1806, upon the ground of his being a freeholder, unless he has a free- hold in the county whrre the judgment is obtained. The Commonwealth v. Mere- dith, v. 432 14. The goods of a tenant taken in execu- tion upon the premises, are liable to the payment of rent to the landlord, up to the time they are taken in execution, though it be in the middle of a quarter ; but not up to the time of sale. Binns v. Hudson, v. 505 15. To entitle a defendant to plead his free- hold under the act of 21st March 1806, he must have a freehold worth the amount of the judgment, and upon which there is no incumbrance. It is not sufficient that the freehold may be thought equal to the judgment, after paying all incumbrances. Girardv. Heyl, vi. 253. EXECUTOR. See ARBITRATION, 12. EVIDENCE, 12. ERROR, 5. 1. A power to A and his executors to sell, may be executed by the executor of A's executor. Lessee of Smith v. Folwell, i. 546 2. The bare appointment of an executor is prima facie evidence that the residue of the personal estate undisposed of by the will, is given to him beneficially. Grosser V. Eckart, i. 575 3. Where the residue of a testator's perso- nal estate is not disposed of by the will, it is always a question of intention, whe- ther the executors take beneficially, or as trustees. i. 575 4. A testator orders all his debts and fune- ral expenses to be paid, and gives his wife 700/., and the use of his real estate, until his only child, a son then about five years old, shall be fifteen. He gives his son 15A, a few specific legacies, and all his real estate, and then orders the resi- due of his personal estate, except a table and two stoves, to be sold by his execu- tors 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- i. 575 5. An executor who receives the surplus proceeds of his testator's land which has been sold under execution, is chargeable with them in account as executoi , not- withstanding he is husband of the devi- see of one half the estate, and claims to have received them in that character. Guier v. Kelly, ii. 294 6. If an executor purchase the real estate of his testator at sheriff's sale, and it is afterwards sold again, in consequence of his not adhering to his purchase, ht is chargeable in account with the largest of the sums at which it was struck off. ii. 294 7. The plaintiff may proceed against an executor, by capias to compel an appear- ance; but if he elects to proceed by sum- mons, then, in order to entitle himself to judgment bynildidt, he must pursue the act of 20th March 1724-5, as if the suit were against a freeholder. Fitzsimons v. Salomon, ii. 436 8. The testator appointed A, B and C his executors, and gave them power to sell his land by the following clause : " The ' executors, namely, A, JB, and C, shall be ' empowered to sell my land, and to give a 'good rt^ht. When my debts are paid, if ' any thing should remain, my wife shall ' keep &c." Two of the executors re- fused to act. Held, that the third had au- thority to sell. Lessee of Zebach v. Smith, iii. 69 9. There is nothing in the defalcation act of Pennsylvania to exclude a sett-off either by or against an executor or ad- ministrator. Murray v. Williamson, iii. 135 10. An executor in the state of Pennsylvania has always been a trustee for the next of kin, as to all the personal property of a testator not disposed of by his will. Wil- son v. Wilson, iii. 557 11. Money had and received will lie against an executor in his personal character, to recover a distributive portion of a testa- tor's estate, not disposed of by his will, and which has come to the executor aa trustee for the next of kin ibid. 12. Assets are a sufficient consideration for GENERAL INDEX. 569 a personal promise by one who is execu tor, to pay a legacy, and to charge him de bonit propriis. Clark v. Herring, v. 33 13. An executor is not liable to an action for a legacy while the prdbate of the will is suspended by appeal ; nor will an ac- tion commenced during 1 that period, ac- quire validity by the subsequent confir- mation of the will. Hantz v. Scaly, vi. 405 EXTINGUISHMENT. See RENT, 1. A judgment in trover against the sheriff 1 , is neither an extinguishment of his official security, nor a bar to a suit against his sureties. It is but one of several reme- dies, which the injured party may use successively, until he obtains satisfaction. Carmack v. Common-wealth, v. 184 FACTOR. See MONEY HAD AND RECEIVED, 1. FARM. Two detached pieces of land occupied as one farm, are within the meaning of the first section of the act of 17th March 1806, which prohibits certain turnpike companies from taking tolls from any person when passing from " one part of the farm to the other," along the turnpike- road. Common-wealth v. Carmalt, ii. 235 FEES. See SURVEYOR. 1. The prothonotary of a court cannot bring an action to recover his fees, in a cause which is still pending. Lyon v. JWManus, iv. 167 2. The uniform practice under the act of assembly of 1795 and long before, has been to pay for original writs, writs of removal, &c. at the time they are taken from the office. But the general fees, as for filing declarations and pleas, issuing writs of venire and distringas, entering rules, &c., are not due until the termi- nation of the suit. ibid. 3. It seems that the plaintiff is liable to the officers for their fees, where they cannot be procured from the defendant. ibid. 4. A justice of the peace has jurisdiction of a suit by an officer to recover his fees, provided their amount does not exceed one hundred dollars. ibid. FEIGNED ISSUE. 1. A writ of error lies from the Supreme VOL. VI. Court to a judgment of the Common Pleas upon a verdict in a feigned issue. Vansant v. Boileau, i. 444 2. The court which tries the feigned issue, and not the register's court, has the right to order a new trial. i. 444 FEME COVERT. A lease to a feme covert is good, unless her husband expressly dissents. If his as- sent may be inferred from circumstances, or if the stipulations in the lease on the part of the feme are performed, the les- sor and those claiming under him are bound by the lease. Baxter v. Smith, vi. 427 FI. FA. See EXECUTION, 1, 2. H. FINE. See ERROR, 20. INDICTMENT, 6. FISHERY. 1. The common law doctrine, that fresh water rivers, in which the tide does not ebb and flow, belong to the owners of the banks, has never been applied to the Sus(fuehanna, and other large rivers in Pennsylvania. Such rivers are navigable, although there is no flow and reflow of the tide, and they belong to the Com- monwealth. No one therefore has a right to an exclusive fishery therein, on the principles of the common law, nor has such a right been granted to any one, by the proprietaries, or by the Common- wealth. Carson v. Blazer, ii. 475 2- In a petition for a partition of an estate, it is not essential to state the fisheries that may belong to it. It is enough if the inquest take them into view in their valuation. Elliot v. Elliot, v. 1 FORBEARANCE. See AGREEMENT, 3. A promise to forbear suit in general terms, is to be understood a total and absolute forbearance. Hamaker v. Eberly, ii. 506 FORCIBLE ENTRY. See COSTS, 13. FOREIGN ATTACHMENT. See ATTACHMENT FOREIGN. 4C 570 GENERAL INDEX. FOREIGN SENTENCE. See EVIDENCE, 9. FORFEITURE. See CURTESY. FORGERY. 1. The publishing a forged note of hand, or any other writing of a private nature, though not under seal, as a genuine note or writing, with intent to defraud, is in- dictable at common law. Commonwealth v. Searle, ii. 332 2. The publishing a counterfeit note of the Bank of North America with intent to defraud, is indictable at common law, and is punishable by imprisonment at hard labour under the acts of 9th April 1790, and 4th April 1807. ii. 332 3. Notwithstanding the expiration of the corporate powers of the late Hank of the Untied States, it is still punishable within the act of 22d April 1794, to pass a coun- terfeit note of that bank ; and any forged note, counterfeiting a genuine note of that bank issued during the existence of its corporate powers, is a counterfeit note of that bank. White v. The Commonwealth, iv. 418 FRAUD. See CREDITORS. DEED, 3. FRAUDS AND PERJURIES. 1. A parol partition between tenants in com- mon, made by marking a line of division on the ground, and followed by a corres- ponding separate possession, is good, notwithstanding the act of frauds and perjuries. Ebert v. Wood, i. 216 2. A parol gift of lands by a father to his son, accompanied with possession, and followed by the son's making improve- ments on the land, is valid. Lessee ofSyler v. Eckart, i. 378 3. A parol contract for the sale of lands, is good under the act of frauds and perju- ries, to support an action for damages So a written contract with an agent who has merely a parol authority. Swing v Tees, i. 450 4. The act of frauds and perjuries does not prevent a declaration of trust by parol Lessee of German v. Gabbald, iii. 30< 5. Where a parol sale of lands has been made, money paid, and possession deli- vered, the contract is good between the parties ; but to make it good against a bona Jide purchaser, there must be clear evidence of notice to him, either actual or legal. Legal notice exists only where there is a violent presumption af actual notice. Undisturbed possession by the equitable owner, has generally been con. sidered as legal notice ; but it must be a clear unequivocal possession. Hence, where A bought by parol from B, a cor- ner of _B' tract, paid for it, was put into possession and had buildings erected, but at the same time had no survey of the part, or other admeasurement to reduce it to certainty, and on 'so\vn part there was a forge, dwelling house, grist and saw mill, and buildings for the workmen, which with Jfs buildings, might strike the eye as one establishment, the posses- sion of A was held not be legal notice of his title to a purchaser at sheriff's sale, under a judgment against B. The equity of a second purchaser will prevail over such a title as Jf, under these cir- cumstances, particularly if A gave no actual notice of his title, when he proba- bly knew of the judgment, execution and sale. Lessee of Billington v. Welsh, v. 129 FREEHOLD. See EXECUTION, 13. To entitle a defendant to plead his freehold under the act of 21st March 18u6, he must have a freehold worth the amount of the judgment, and upon which there is no incumbrance. It is not sufficient that the freehold may be thought equal to the judgment, after paying all incum- brances. Girurd v. Heyl, \\. 253 FREEHOLDER. A capias may issue for any cause of action whatever against a freeholder, who ne- glects to put in special bail upon notice. Jack V. Shoemaker, iii. 280 FREIGHT. See INSURANCE, 23, 24. 36. 39. LIEN, 8, 9. 1. A cargo of flour and wheat was shipped from Philadelphia to Fayal, and from thence at the discretion of the shippers to two other ports ; ten running days to be allowed at each port the vessel might stop at, to determine upon the expedi- ency of unlading or proceeding, and twenty-five working days at her port of discharge, for the discharge of her cargo. In case of further detention, a demurrage of fifty dollars per day to be allowed for every day she was detained, which should GENERAL INDEX. 571 viotbe longer than thirty days. Freight at the rate of one dollar and seventy-five cents per barrel, if she discharged at Fayal, and twenty-five cents for each subsequent port. The vessel arrived on 14th of February at Cadiz, which was selected as her port of discharge; and on the 17th the captain desired and offered to unlade the cargo. The supercargo refused to receive it, insisting on his right to keep it on board the twenty-five days, and within this period the vessel and cargo were lost. Held, that the su- percargo was not bound to receive the cargo during the twenty-five working days, and it being lost within that period, no freight was earned, notwithstanding there had been time and opportunity and an offer by the captain to discharge it. Lacombe v. Wain, iv. 299 2. Qiixre, whether freight is earned when the working days at the port of dis- charge expire ; or whether it is not contingent during the days allowed on demurrage, and even until the cargo is actually landed, if the landing is not pro- hibited, ibid. FUGITIVE FROM JUSTICE. See LARCENY, 4. GARNISHEE. 1. If the garnishee in a foreign attachment pay over to the plaintiff the debt attach- ed, without being compelled by due pro- cess of law, and without requiring the stipulation ordered by act of assembly, it will not discharge him from the origi- nal debt. Myers v. Urich, i. 25 2. Upon the plea of milla bona by a garni- sh ee, the j ury must find the specific goods in his hands. A verdict 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. Crawford v. Barry, i. 481 GENERAL AVERAGE. See AVERAGE GENERAL. GENERAL WARRANTY. A sells several lots of land for a sum of money, payable by instalments, and co- venants to convey with general warran- ty, on payment of the whole money. He then conveys the lots to C and 7> with general warranty, in trust to convey them to the vendee in fee simple, as soon as the purchase money and interest should be paid according to contract, and de- livers them the obligations for the mo- ney. Zfr/ic/ that this convejance is no im- pediment to a suit in A's name for the recovery of the money, nor to an appor- tionment of the purchase money, if title to some of the lots fails. Stoddart v. Smith, v.355 GRAND-CHILDREN. See LEGACY, 7. GROUND RENT. A ground landlord does not lose his lien for the rent due, by taking a bond and war- rant of attorney for the arrears, and en- tering up judgment. Gordon v. Correv, v. 552 GUARANTY. A requested B to give C any assistance in the purchase of goods, by letter or other- wise, saying " you may consider me ac- " countable -with him to you, for any " contract he may make." Held, that a contract by C to pay B a premium for guaranteeing a contract by C with a third person, was within A's promise, but that it did not make A a. joint debtor with C to B. Meadev. M' Do-well, v. 195 GUARDIANS OF THE POOR. See CLERGYMAN. HABEAS CORPUS ACT. 1. The penalty for recommitting a person who has been once delivered for the same cause on a habeas corpus, is limited tore- commitments for the same criminal of- fence, and is not incurred by taking the party a second time in custody upon civil process. Hecker v. Jarrett, i. 374 2. The habeas corpus act of 1785 extends to commitments under civil process. Hecker v. Jarrett, iii. 404 3. The Supreme Court is not bound by the act of 1785 to grant a habeas corpus, where the case has been already heard by another court, upon the same evi- dence that is suggested to this. It is not expedient to grant it where the case has been once so heard, and the party has a remedy by homing replegiando. Ex parte Lawrence, v. 304 4. If a person is committed to prison by a justice of the peace or a judge of a state court, for an offence against the United States, this Court may issue a habeas corpus, and discharge him altogether, or admit him to bail i unless he is charge- 572 GENERAL INDEX. able with an offence punishable with death, in which case they cannot admit him to bail. The Commomueatth v. Hollo- way, v. 512 5. Although the Supreme Court is bound to deliver all persons by the writ of ha- beas corpus, from illegal restraint ; yet they are not bound to decide who is en- titled to the guardianship of children, or to deliver them to the4;ustody of the fa- ther, even where he has been divorced from the mother, on account of her adul- tery ; but they may in their discretion do so, if they think proper. The Com- monwealth v. Addicks, v. 520 HABERE FACIAS. If the sheriff upon an habere facias delivers to the plaintiff the proportion that he has recovered in ejectment, and after the re- turn day of the writ the plaintiff ousts the defendant of the whole, the court will not restore the defendant in a sum- mary way. But it seems otherwise, if there is an actual ouster, before the re- turn day of the writ. Lessee of Gardiner v. Bridge Company, ii. 450 HARD BARGAIN. The plaintiff brought his ejectment upon an equitable title, which although per- haps not unfairly obtained from the de- fendant, was accompanied by some sus- picious circumstances, and at all events was very indiscreetly bartered away by the defendant. The jury, although in- structed that the contract was lawful, found a verdict for the defendant, which the court refused to set aside. Campbell v. Spencer, ii. 129 HEIR. See INTESTATE, 1. 1. The heir at common law takes the real estate of his intestate ancestor, except in the specific cases enumerated in the acts for regulating the estates of intestates. Cresoe v. Laidley, ii. 285 2. Heir is nomen collectivum in a will if not in a deed, and the same as heirs. Lessee of Hall v. Vandegrift, iii. 374 HUSBAND AND WIFE. See BARON AND FEME. IMPLIED PROMISE. An express agreement prevents the impli- cation of a promise, which the law would otherwise make. Duncan v. Keiffer, iii. 126 IMPROVEMENT. See EJECTMENT, 2. WARRANT AND SURVEY, 25. 1. An improvement made on lands not pur- chased from the Indians, does not vest a title. Lessee of Kyle v. White, i. 246 2. An improvement and settlement on lands purchased from the Indians in Novem- ber 1768, made between that date and the opening of the land office on the 3d April \i 69, gives no preference to the settler against a descriptive application entered in the land office on the day it opened. Lessee of Buchanan v. Maclvre, i. 385 3. 0>uiere, whether a person residing on one tract can make a legal settlement by a tenant on another, so as to acquire a legal settlement right to it ? Lessee of Blainev. Johnson, iii. 103 4. Title by settlement and improvement, though at different times it has been in some measure shaken, is now as well established as any species of title in Pennsylvania, and very often has been preferred to warrant, survey and patent. Lessee of Bonnet v. Devebaugh, iii. 175 5. An improvement right is no more than a right of pre-emption, wiiich may be abandoned at the pleasure of the im- prover, lessee of Magens v. Smith, iv. 73 6. The owner of an improvement right, is entitled to three hundred acres, and may take as much less as he pleases ; but af- ter he has ascertained the extent of his right by a survey, though it fall short in any degree of three hundred acres, the general rule is, that he cannot after wards extend his limits. If however he has, by consent lines between him and his neigh- bours, ascertained the limits of his claim, and afterwards, being unable to pay for the whole at once, lias a survey made upon part only, it seems that the residue of the land within his claim, is not to be considered as relinquished, but he may subsequently cover it by a new survey. .Lessee of Davis v. Keefer, iv. 161 7. A mere improvement upon land is no authority under the act of 22d of Septem- ber 1794, for a warrant. An improvement may be made by clearing land, and .cul- tivating it, without residing on it. The act requires a settlement, which implies actual residence. Bixler v. Baker, iv. 213 8. Title by improvement is merely a right of pre-emption, until the purchase is GENERAL INDEX. 573 made from the Commonwealth. Up to that time, possession is not adverse fo,but under the Commonwealth j and therefore though it continue twenty-one years, it is no bar by the Statute of Limitations to the Commonwealth, or her grantee. Morris v. Thomas, \. 77 9. An accidental clearing over the boundary of patented land, vests no interest in the vacant lands of the Commonwealth, ib. 10. A clearing of land belonging to the Commonwealth, without a bona Jlde set- tlement, does not vest a right by improve- ment, ibid. 11. Before a settler ascertains his bounda- ries by warrant and survey, he may, so far as concerns his neighbours, ascertain his limits by lines marked on the ground. These lines are notice to the neighbour- hood, and unless some particular objec- tion should occur to them, must be ad- hered to, when the title comes to be completed by warrant, survey and pa- tent. It is therefore competent for one of two interfering settlers, to give evidence that before the other had taken out a warrant, the former had declared his in- tention to extend his claim in a certain direction by a marked line, of which the other had notice. Gordon v. Lessee of Moore, v. 136 12. A settlement made on lands not pur- chased from the Indians, cannot be the foundation of any title, legal or equitable, unless connected with a special promise from the proprietaries or their agents. White v. Lessee of Kyle, v. 162 13. A warrant calling for an improvement made by A, cannot be supported by an improvement made by If, nor can it be so connected with any after purchased improvement as to vest a title. ibiJ. 14. Persons settled upon land not purchas- ed of the Indians, and receiving from the proprietary agent a promise of confirma- t ion, were bound to apply for the confirma- tion at the opening of the land office for those lands, or within a reasonable time afterwards, or they lost the benefit of the promise. ibid. 15. A made application to the secretary of the land office for a tract of land particu- larly described, lying north and west of the Ohio, &.c. On the 3d of April 1792, a warrant issued, which by mistake of the office, was filled up with lands lying else- where. On the 10th of April 1792, the warrant was delivered to the deputy surveyor of the district, who, perceiving the mistake, did not enter the warrant in his book according to its description, but according to the description in the appli- cation, and surveyed on the 29th of Au- gust following. Prior to the survey, but subsequent to the 10th of April, B made a bona Jide actual settlement upon the same land. Held, that the entry made by the deputy surveyor had no effect against third persons, and that >B was entitled to recover. Lessee of Dawson v. Bigsby, v. 204 16. An actual settler cannot maintain an ejectment for his improvement, without an official survey, or a private one, if by due exertion he was unable to obtain the former. Stochman v. Blair, v. 211 INDICTMENT. See LIBEL, 2. COSTS, 13. 1. An indictment for stealing two ten dollar notes of the president, directors and compcny of the Bank of the United States, is bad. They should be laid to be promissory notes for the payment of money. The Crsmmonweatth v. Boycr, i. 201 2. Quxre, Whether an indictment is bad for laying bar.k notes, as the goods and chat- tels of the prosecutor. i. 201 3. Where a statute creates or expressly pro- hibits an offence, and inflicts a punish- ment, the statute punishment cannot be inflicted, unless the indictment concludes contra formam statnti ; otherwise when the statute only inflicts a punishment, on that which was an offence before. Com- mon-wealth v. Searle, ii. 332 4. In an indictment for forging a bank note, it is not necessary to set forth the orna- mental parts of the bill, as the devices, mottos, &c. ib. 5. An indictment for stealing bank notes generally, under the description of pro- missory notes for the payment of money, is bad. It should appear on the face of the indictment, that they are bank notes of some incorporated bank, or in some way that they are lawful notes. No un- incorporated bank notes in Pennsylvania are at present the subject of larceny. Spungler v. The Ct/mmonwealth, iii. 533 6. An indictment for erecting, &c. &mound made of logs and stones, in the river Sm- quehanna, for the taking of fish in the said river, to the great obstntctinn and hindrance of the fish, fry and spawn in passing up and down said river, and to the common nui- sance of all the liege, citizens, &c. is within the 4th section of the act of the 9th of March 1771, which prohibits the erection &c.of any wear, rack, basket,dam, pound, or other device or obstruction whatsoever, 574 GENERAL INDEX. tohereby the fish may be obstructed from going up said river, t?*c. and therefore a judgment that the fine shall be paid to the Commonwealth, instead of going to the informer and commissioners in that section mentioned, is erroneous. Werfel v. The Commonwealth, v. 65 7. An indictment charged that Jl unlawfully, secretly, and maliciously, with force and arms, broke and entered at night the dwelling house of B, with intent to disturb the peace of the Commonwealth ; and after entering the house, unlawfully, wil- fully, and turbulently, made a great noise, in disturbance of the peace of the Com- monwealtb, and did greatly misbehave in the said dwelling house, and did greatly frighten and alarm the wife of the said B, whereby she miscarried,&c. Held, that the offence laid was indictable as a misdemeanor. Quaere whether the indict- ment could be supported as describing a forcible entry. Common-wealth v. Taylor, v.277 8. An indictment charging that the defen- dant -with a certain stone which he held, in and upon the right side of the head of the deceased, feloniously, &c. did cast and throw, and that the defendant with the stone aforesaid, the deceased in and upon the right side of the head feloni- ously, &c. did strike, sufficiently charges that the defendant threw the stone and struck the deceased. White v. Common- wealth, vi. 179 9. In an indictment for murder, it is not ne- cessary so to describe the offence, as to shew whether it be murder of the first or second degree. Nor is it necessary that the indictment should conclude against the form of the act of assembly. ib. INFANCY. The court will not discharge a defendant out of custody upon the ground of infan- cy, where there is no suggestion of fraud or imposition; but will leave him to make use of that fact upon his.defence. Clem,' son v. Rush, iii. 413 INFANT. See ENLISTMENT. PRACTICE, 37. 1. Under the act of congress authorizing the President of the United States to cause to be engaged certain able sea- men, ordinary seamen and boys, to serve in the navy, an infant who has arrived at years of discretion, and has neither fa- ther, master, nor guardian, may make a valid contract to serve according to the act, notwithstanding he has a mother, with whom he resides at the time, and whose consent was not given to the con- tract. The Commonwealth v. Murray, iv. 487 2. An infant owes reverence and respect to his mother, but she has no legal autho- rity over him, nor any legal right to his services . ibid. 3. Under the constitutional power of con- gress to provide and maintain a navy, that body may bylaw authorize an infant to make a contract for service in the navy. ibid. 4. If the decree of an Orphans' Court, or- dering the real estate of an intestate at the valuation, to his oldest son, be erro- neous, a minor is not concluded by his own, or his guardian's acceptance of the sum at which his interest in the estate is valued, provided as soon as practicable after his arriving at lawful age, he takes the necessary steps to question the pro- ceeding. He is not concluded, though he. accepted the purpart after he came of age, if he was then ignorant of the wrong done to him. Elliot v. Elliot, v. 1 INFORMATION. When leave is granted to file an informa- tion in the nature of a quo warranto, the defendants must be summoned by a ve- nire, or subpoena ; and if they fail to ap- pear, must be brought in by distringas or attachment. An appearance upon the pre- vious rule to show cause, does not put them in Court as to the information; and therefore upon filing the information, the relators are not entitled to a rule to plead. T/ie Common-wealth v. Sprenger, \. 353 INNUENDO. The office of an innuendo is to elucidate words, by connecting them with the sub- ject to which they refer, and averring a meaning not inconsistent with or contra- dictory to them, but it cannot alter their nature. Shaffer v. Kintzer, L 537 INQUISITION. 1. An inquisition is not necessary to the sale of an estate for life, or of any other estate of uncertain duration. Burd v. Lessee of Dansdale, ii- 89 2. An inquisition cannot be supported un- less there has been notice in fact to the defendant, either of the levy, or of the time and place of holding the inquest. Heydrick v. Eaton, ii- 215 GENERAL INDEX. 575 3. In a proceeding by a justice of the peace &c. against a turnpike company, for per- mitting their road to be out of repair five days, it is necessary that it should dis- tinctly appear in the inquisition that the road has been out of repair five days, and that the part of the road complained of, be stated to be in the county where the justice has jurisdiction. Common-wealth v. Willow Gro-ve Co. ii. 257 INSOLVENT DEBTOR. 1. A petitioner for relief under the insolvent act of 4th April, 1798, must exhibit to the court a statement in writing of his losses, and the means whereby he became in- solvent. Baker's case, i. 462 2. A debtor who has no property whatever, is nevertheless entitled to the benefit of the insolvent laws. i. 462 3. The 18th section of the insolvent law of April 4th, 1798, is intended to relieve all persons in actual confinement, whether inhabitants of this state or not; but anon- resident debtor must apply for his dis- charge to the court by whose process he is confined. CroxalCs case, i. 589 4. If a debtor is discharged from a debt by the law of the state or territory where it was contracted, and the creditor resides in Pennsylvania and arrests him here, the rule is to discharge him on common bail, if the state where the debtor was dis- charged, extends the same courtesy to citizens of Pennsylvania; and it will be presumed that it does, until some reason is shewn to tlie contrary. Smith v. Brawn, iii. 201 5. A debtor who is in custody in conse- quence of a surrender by his bail, is not entitled to a discharge, by virtue of a provisional discharge from the commis- sioners of insolvents under the act of 13th of March 1812. The Common-wealth v. Cornman, iv. 483 6. The Supreme Court cannot discharge an insolvent debtor who is in confinement under process from the district court ol the city and county. Lx parts Ogle, v. 518 7. The Courts of Common Pleas have pow- er under the act of 14th February 1729 30, for the relief of insolvent debtors, to appoint new assignees, where those first appointed refuse to act ; and to compel the first assignees to convey their interest to the new. But the mere appointment of new assignees by the Court does not vest the insolvent's lands in them, so that they may support an ejectment. Cooper V. Ueniter&on, VI. 189 3. The trustees of an insolvent debtor may institute an ejectment, without stating their character upon the record. ib. 9. The assignment of an insolvent debtor passes all his property, whether mention- ed in the schedule annexed to his peti- tion, or not. ib. 10. A discharge under the insolvent law of 13th March 1812, does not disturb the lien of a judgment. Clark v. Israel, vi.391 11. The lands of the insolvent, remain after his assignment and discharge, subject as before to proceedings by mortgagees and judgment creditors. If the defendant is in possession, with the permission of his assignees, it is not necessary to serve a scire facias post annum et diem upon his assignees. ib. INSPECTION OF BEEF AND PORK. Salted beef or pork in barrels, exposed to sale, but not intended for exportation or for ship stores, is not subject to inspec- tion. Garrigues v. Reynolds, vi. 330 INSPECTORS OF THE PRISON. See Quo WARRANTO, 1. INSTRUCTIONS. A deviation from instructions excused in consequence of an event not contem- plated at the time they were given. Dusar v. Ptrit, iv. 361 INSURANCE. See SETT OFF, 3. EVIDENCE, 9. 1. In an action on a policy of insurance, wherein the plaintiff declares for a total loss, and proves a capture and condem- nation of the property which he has never abandoned ; the jury may estimate the value of the spes recuperandi, deduct it from the whole sum insured, and find the remainder as a partial loss. Watson v. The Insurance Company of North America, 147 2. If a policy underwritten in Philadelphia contains a warranty of American pro- perty, "to be proved if required in this " city and not elsewhere," the assured is entitled to vindicate the truth of his war- ranty not only against a foreign condem- nation as enemies' property, but against a condemnation for any act or omission of his agents during the voyage, by which the neutrality is alleged to have been forfeited. Calhoun v. The Insurance Com- pany of Pennsylvania, i.293 576 GENERAL INDEX. 3. An agreement by a lender on respondentia, " to be liable to average in the same " manner a8 underwriters on a policy of " insurance according to the usages and " practices of the city of Philadelphia" does not entitle the borrower to calculate an average loss upon the whole amount of the money loaned and the marine in- terest, but merely on the cost and charges of the goods on board, and the premium of insurance. Gibson v. The Philadelphia Insurance Company, i. 405 4. Upon an insurance on goods, the under- writers are not liable for freight paid by the owner of the goods during the voyage. i. 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 as- signee the insurers may set off a debt due by the assured at the time of the as- signment, though it be an open policy, and the claim for a partial loss Rouasetv. The Insurance Company of North America, i.429 6. Upon an insurance " at and from" the warranty of seaworthiness must be re- ferred to the commencement of the risk; and if between that time and the sailing of the vessel, she becomes unfit for sea without the fault of the assured, and is afterwards lost, the assured may reco- ver. Garrigues v. Coxe, i. 592 7. A policy on vessel contained a clause that if " after a regular survey she should " be condemned for being unsound or " rotten, the underwriters should not be " bound to pay their subscriptions." The survey and condemnation, to come within the clause, must shew unsoundness from decay, and not from accident, as the eat- ing of rats. i. 592 8. A leak occasioned by rats without the neglect of the captain, is a peril within the policy. i. 592 9. If an insurance broker pays the premium to the underwriter after notice from the assured before the premium was due, that the risk never commenced, he can- not recover it from the assured and turn him round to a suit against the under- writer for a return. Shoemaker v. Smith, ii. 239 10. If the general agent of neutral cargo covers belligerent property in the same vessel, though without the consent or knowledge of his principal, the property of his principal is liable to condemnation, notwithstanding it is plainly distinguish- ed from the covered property by bills of lading and invoices on board ; and the underwriters on that property, if war- ranted neutral, are discharged, either upon the ground that the warranty has not been performed, or that the risk has been increased by the agent of thenssnr- ed. Phcenix Insurance Company v. Pratt, ii. 308 11. A vessel stated in the body of the policy to be the " good British brig called the " John," was insured at the usual sea risk premium from Havanna to Baltimore, with a written memorandum at the foot of the policy, that the insurant* was against perils of the sea only, and was to end on capture. Held t that the words " British brig," even if a warranty, did not imply that she was a British regis- tered vessel, but merely that she was owned by a British subject ; and it being proved that the owner was a Scotchman bv birth, and that he navigated the vessel under a clearance and license from the British custom house at New Providence, this was sufficient prima facie to shew that he continued to be a British subject, without shewing his domicil or place of habitual residence. Mackie v. Pleasants, ii. 363 12. To make a survey and condemnation for unsoundness, &c. a bar within the usual memorandum in policies on vessel, it must appear that the vessel was con- demned for unsoundness or rottenness only. If the survey states injuries by storm as well as by decay, and concludes that the surveyors are therefore of'opinion that the vessel is unworthy of repair and unfit for sea, and the decree of the ad- miralty is founded upon the report gene- rally, such a survey and condemnation are not a bar. Jlrmroyd v- The Union In- surance Company, ii. 394 13. Any trick, cheat, or fraud, and any crime or wilful breach of law, committed by the captain to the prejudice of his own- ers, is barratry ; as the rescue of a neu- tral vessel by her own crew, from the hands of the captors who are taking her in for adjudication. Wilcocks v. The Union Insurance Company, ii. 574 14. If the policy contains a warranty of neutral property, and at the same time the usual agreement by the underwriter to answer for the barratry of the master and mariners, the warranty implies that the neutral character shall not be forfeit- ed by any acts of the insured or their agents, except only, by such as may amount to barratry. " 574 15. The crew of a neutral vessel, captured arid sent in for adjudication, are not GENERAL INDEX. 577 obliged to navigate her. It is the duty of the captors to put a sufficient force of their own on board her, and if they ne- glect to do it, they do not take sufficient possession, and the neutrals may consider her as abandoned to them. But if an in- sufficient force is put on board, in conse- quence of a promise by the neutral crew to navigate her to the destined port, they are bound by their promise, and must be considered for the purpose agreed on, as the hands of the captors. If in violation of their promise, they take the vessel into their own hands, it is an unlawful rescue, which is an act of barratry. ii. 574 16. Seaman's wages and provisions incurred during an embargo, cannot be recovered as a partial loss from the underwriters on freight. They are general average The Insurance Company of North America v. Jones and Clark, ii. 547 17. An agent neglected to effect insurance according to a letter of instructions which stated that the owner valued the vessel at 4000 dollars, three fourths of which sum he wished to be insured. Held, that he was answerable as in case of a valued policy, although the letter contained no precise order to have the policy valued. Miner v. Tagert, iii. 204 18. Where a policy has been effected as a mere cover for a wager, there can be no recovery. iii. 205 19. An abandonment after acquittal, and after an order of restitution has been given by the court of last resort to the agent of the assured, is too late, notwith- standing it be made before actual resti- tution by the captors. Mams v. The Dela- ware Insurance Company, iii. 287 20. It is the state of the fact, and not the state of the party's information at the time of an abandonment, that is to test its va- lidity, ibid. 21. The owner of goods chargeable with general average, is personally liable for the amount of his contribution, notwith- standing he has abandoned to the under- writers. Delaware Ins. Co. v. Delaume, iii. 295 22. A paper which is not evidence per $e in a suit between the underwriter and the assured, does not become so for any pur- pose, in consequence of having been ex- hibited by the latter to the former, as one of the preliminary proofs of loss. Thurs- ton v. Murray, iii. 326 23. Ship and goods belonging to the same o%vners, were insured from Philadelphia to Barbadocs ; but the vessel by stress of weather was compelled to put into An- Vor.. VI. tigua, where she was condemned and sold, and the voyage broken up. The goods were likewise sold, and the net proceeds of both were paid to the super- cargo. The assured abandoned ship and goods, and recovered a verdict for a total loss in each case ; but in adjusting the loss, they claimed to deduct out of the net proceeds of the goods which were to be credited to the underwriter, a/>ro rata freight to Antigua Held, that no freight pro rata was due. Armroydv. Union Insu- rance Company, iii. 437 24. If a. pro rata freight had been earned in. the preceding case, quxre whether it would have belonged to the underwriter on ship by the abandonment, or to the owner of the ship, who had stood his own insurer as to freight ? ibid- 25. A vessel insured at and from Philadel- phia to Amsterdam, with liberty in case she should be turned off from Amster- dam, to proceed to some neighbouring port of discharge, was boarded on her passage by a British ship of war, and her papers indorsed with a direction not to proceed to any port at war with Great Britain, or which was shut against Bri- tish ships, but to proceed to any port of Great Britain or Ireland for further di- rections. She then put into Falmouth, where in consequence of head winds, and with a view to obtain convoy, (the captain having there heard of the Milan decree) she remained nearly four months, and then sailed under convoy for the Do-urns, with intent from that place to proceed to London or Amsterdam accord- ing to advice. Shortly before she reached the Downs, a gale came on, which forced her into the Dovms where she was totally lost. Held that the indorsement and warn- ing justified the deviation to Falmouth , that the stay at Falmouth was justified by the weather, and by the necessity of obtaining convoy ; and that even if the Downs were out of the course of the voyage to Amsterdam, yet the gale justi- fied the captain's going in, and his de- sign before he left Falmouth to put in. there for advice, was but a mere intention to deviate, which did not aH'ect the poli- cy. Snoicden v. Phoenix Insurance Company, iii. 457 26. It is not a breach of a warranty of neu- trality, for the vessel insured to take convoy of a Jiritish ship of war, if during the voyage insured she has become ex- posed to the operation of the French de- crees, in consequence of having been visited at sea by a Jiritish cruiser, iii. 457 27, If a vessel arrives at her port of desti- 4D 578 GENERAL INDEX. nation, where the policy ends, it is of no importance that she cannot be repaired there at all, if the injury previously sus- tained does not amount to fifty per cent, of her value. Ralston v. Union Insurance Company, iv. 386 28. A ship is insured from Jl to B, where she arrives and delivers her cargo, hav- ing sustained a severe injury on the voy- age by striking on a shoal. The damage is such, that for want of the requisite docks she is irreparable at B, and is wholly unseaworthy to go elsewhere. She is surveyed, an estimate of the re- quisite repairs made, and she is then condemned and sold. The captain pur- chases her at a perfectly fair sale, for less than the estimate of repairs, and for less than one sixth of her value in the policy ; and he then sails in her at a great risk to C, where he puts her in a dry dock, and has her repaired at less than fifty per cent, of her value. After the re- pairs made, but before the owner knew of them, or of her arriving at C, he aban- doned. Held that the damage did not amount to fifty per cent, of her value, and therefore the abandonment was not good : but as a partial loss, the insurers are bound to pay not only the cost of re- pairs, but the expenses of taking her to C, to be repaired. ibid. 29. Although the assured does not elect to abandon upon receiving intelligence of the capture of his property, he may ne- vertheless abandon and recover as for a total loss, upon the event of its condem- nation at any distance of time from the capture. Bohlen v. Delaware Insurance Company, iv. 430 30. If the assured by his own misconduct or neglect, prevents his property from being finally recovered, the underwriter may on that account refuse to accept an abandonment, and in an action for a par- tial loss, the court will consider as saved, what might have been so, but for the de- fault of the assured. iv. 444 31. Where the property insured is by a pe- ril in the policy taken wholly out of the possession and control of the assured, he may abandon at any time before it is re- stored to him. The rule of abandoning in a reasonable time after intelligence of the loss, does not apply to a case in which the whole property, by the peril of capture, seizure and the like, con- tinues to be out of the possession and control of the assured up to the time of abandonment. Broian v. Phanix Insurance Company, iv. 445 32. The owner of goods lost by jettison, is not entitled to abandon to his underwri- ters and to turn over to them the claim for contribution upon the other proprie- tors of cargo, &c., but must in the first instance resort to the other proprietors himself. Lapsky v. Pleasants, iv. 502 33. Jl and B, American citizens, having learned from the captain of their ship then in England, that he intended to bring home a cargo of salt, crates, &c. for their account, effected insurance on goods, warranting them American pro- perty. C"and D, British merchants, and the consignees of the ship abroad, load- ed the ship with salt &c., which they paid for with their own funds, and took a bill of lading from the captain, making the same deliverable to their agent in the United States. They at the same time in- sured the cargo in their own names in England, and instructed their agent to deliver it to Jl and B, upon their paying him a sum, exceeding the cost of the cargo, otherwise to dispose of it for ac- count of C and D. The ship foundered upon her voyage to America. Held, 1. That Jl and B had no insurable interest in the cargo, that they could insure un- der the description of cargo or goods; and qiuere if they had any at all. 2. That if they had, the warranty of American pro- perty was falsified by the British interest in C and D. 3. That this was not a case of double insurance, because the two in- surances were not on the same risk, and for the same person. Warder v. Norton, iv. 529 34. An insurance was effected on goods at and from Philadelphia to Antwerp, with an agreement by the assured not to ' abandon in case of capture or detention in less than sixty days after notice there- of, and with the usual clause against il- licit or prohibited trade. The ship sailed on the 13th of September 1807, was cap- tured by a British privateer on the 16th of October, and carried into Plymouth. This event -was knoivn to the assured on the 1st of December. On the 20th of October the ship's papers were returned, and she proceeded on her voyage. On the 27th she dropt anchor in Flushing roads, when, the captain having reported himself to have been in England, a guard was put on board his vessel, and remained there until he was ordered to quit the roads, having been refused permission to pro- ceed to Antwerp. On the 16th of Novem- ber or December, he sailed from Flushing for Rotterdam, intending to discharge his cargo there,, and on the 17th of Decem- ber was captured by a Bntish vessel of war, and carried into the Downs. These GENERAL INDEX. 579 events -were known to the assured in the be- ginning of February. On the 24th of De- cember the ship's papers were returned, with permission to proceed to Rotterdam. But various accidents detained her until the captain, hearing of the Dutch decrees, determined to proceed to London, and discharge his cargo, which he did in the latter end of February or beginning of March. On the 20th of May 1808, the as- sured abandoned on the ground that the voyage was broken up, and the cargo was discharged in England Held\. That the prohibition to trade at Antwerp, and the arrest at Flushing, being conse- quences of the first capture, they were not within the clause against prohibited trade, and gave the assured a right to abandon, if exercised in due time. 2. That the dropping anchor in the roads of Flushing was not a deviation, that for- tress commanding the Scheldt, and com- pelling vessels to report there. 3. That sailing to Rotterdam for the purpose of discharging, was sailing on a new voy- age, which the policy did not protect, and therefore the underwriters were not answerable for any subsequent disasters. 4. That the arrest and detention at Flush- ing and turning away, being known to the assured in February, the abandon- ment in May was too late ; and there- fore the assured were entitled to recover only for the loss arising from the first capture, and carrying into England. Sa- vage v. Pleasants, v. 403 35. A warranty that a vessel is an American bottom, means that she is owned by a citi- zen of the United States, and is furnished with the usual documents required by our laws and treaties with foreign na- tions, so as to protect her from capture by any of the belligerents ; but not that she is American built, or is m. American registered vessel. Hence if she is American owned, and sails under a sea letter mere- ly, the warranty is true. Griffith v. Ins. Co. of North America, v. 464 36. Ship and freight were insured at and from Philadelphia to St. Barts. On her voyage the vessel was so much injured by storms, as to be under the necessity of putting into Jamaica; and upon being surveyed, it was found that her repairs would cost more than she would be worth when repaired. The master, who was consignee of the cargo, made inqui- ry tor another vessel to carry it on to St. Barts ; but the only one that could be procured, was not large enough to take more than half the cargo, and for her an exorbitant freight was demanded. In con- sequence of this the vessel was broken up, and together with the cargo sold for the benefit of all concerned. Upon re- ceiving advice of the facts, the owners abandoned to the underwriters on ship and freight, and also to the underwriters on cargo. Held, that as the goods were not voluntarily accepted by the owners at the intermediate port, no freight pro rata was due, and therefore the assured were entitled to recover a total loss on both policies. Callender v. The Ins. Co. of North America, v. 525 37. An agent who effects insurance for his principal, and becomes answerable for the premium, has a lien upon the policy, so long as he retains it; but if he delivers it up, his lien is gone ; and although the underwriters are entitled to deduct the premium, if unpaid, from the loss, yet if paid by the agent, he has no equity to stand in their place, and to claim pay- ment out of the sum due for the loss. Cranston v. The Phil. Ins. Company, v. 538 38. Goods were insured on board the ship Logan " at and from JVew York to Am- " sterdam, with liberty, in case of being " turned off on account of blockade, to " proceed to a neighbouring port" On the voyage she was boardt- d by a British pri- vateer, and her papers endorsed " warn- " ed not to enter or attempt to enter an " enemy's port," in consequence of which she proceeded to Coiues, where she ar- rived the 28th of December 1807. She there paid duties, and took a license for Amsterdam, to continue in force four months from the 30th of December 1807. On the 13th of February 1808, when about to depart she was detained by a British ship of war, and libelled in the admiralty. Restitution was obtained on the 23d of March, and on the 18th of April she sailed with a view of prose- cuting her voyage to Amsterdam, but was again captured by a British cruiser on the 3d of May, sent to Yarmouth Roads, and a second time libelled. She was re- stored on the 21st of June; but her license having- expired, and intelligence having been received in England that the French and Dutch decrees were rigidly enforced on the continent, the captain proceeded to London, and there discharged his car- go. Held, that London was a neighbouring port, within the policy, and that the as- sured had no right to abandon. Ferguson v. The Phoenix Insurance Company, v. 544 39 If the assured, in consequence of the port of destination being blockaded, ac- cepts his goods from the carrier at an intermediate port, paying full freight, and from tlunce transports them by lighters to thtiir destined port, he can- 580 GENERAL INDEX. not recover from the underwriter on goods, either the expenses of tranship- ping and the freight paid for the light- ers, or a premium of insurance paid for -the risk in the lighters. Low v. Davy, v. 595 40. Goods consisting of cocoa, indigo, to- bacco, &c. were insured in October 1799, on board the ship Gatlsden, from New- port^ Rhode Island, to Passage in Spain. The goods were part of a cargo, which had been imported in the same ship from Luguira to Charleston, and there by per- mission of the custom house officers, suf- fered to remain on board, being entered for exportation, and bonds given for the duties. Other goods were then put on board, with which she sailed for Pas- sage ; but being forced in consequence of an accident to put into Newport, the whole cargo was there taken out, and after some repairs was reshipped in the same vessel, which then sailed upon the voyage insured- The order of insurance only mentioned the kind of goods, but nothing was said of the importation from Laguira, nor of the circumstances at- tending the exportation from Charleston, although the British order of 25th January 1798, was then well known in the United States, Held 1. That this was a material con- cealment which avoided the policy. 2. That the underwriters were not bound to inquire into the origin or his- tory of the cargo in consequence of knowing that the articles insured were such as the Spanish colonies produce ; but it was the duty of the insured to in- form them. 3. That by the true construction of the order of January 1798, the voyage from the colony to the mother country must be indirect, and not merely the course of the voyage : and 4 Whether the importation at Charles- ton was legal or not, it was at least so unusual and suspicious, that it was the duty of the insured to communicate it to the insurer. Kohne v. Insurance Company of North America, vi. 219 41. If a person, who is under no obligation to execute an order of insurance, never- theless undertakes it, and executes it de- fectively, he is answerable for the loss. French v. Reede, vi. 308 42. If the general agent of ship and cargo, covers enemy property on board, the war- ranty of neutrality in a policy on the ship, is violated. Sckwartz v. Insurance Com- pany of North America, vi. 378 INTEREST. See WITNESS, 2. 7, 8. LEGACY, 4, 5, 6. 1. Where the condition of a bond is for the payment of interest annually, and the principal at a distant day, the interest 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. Sparks v Garrigues, i. 165 2. An administrator is chargeable with in- terest after twelve months from the in- testate'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 with it. Fox v. Wlkocts, i. 194 3. It is now a settled rule that interest is recoverable for money lent and advanc- ed ; and this rule applies to loans made when the law was held to be otherwise. Lessee of Dihaorth v. Sinderling, i. 488 4. A trustee is entitled to interest for ad- vances made to supply the deficiencies of the trust fund, although the interest and advances nearly absorb the equitable in- terest, i. 488 5. The late proprietaries of Pennsylvania were in the habit of receiving the arrears of their ground rents without interest; and with respect to those rents, the law- has been taken for granted, that interest upon them is not recoverable. Bantleon v. Smith, ii. 154 6. Quare, whether interest on rent is reco- verable in any case. ii. 146 7. Interest cannot be recovered upon the arrears of a ground rent, where the land- lord resorts to the land for payment, ib. 8. A rule for trial or non pros, has no effect upon the plaintiffs right to interest. Sulger v. Dennis, ii. 428 9. An agreement was made between two contending claimants for money in the sheriff's hands, that the sheriff should deposit the amount in bank, until the question should be decided. The sheriff deposited it, but took it out soon after. Held, that the sheriff was bound to pay interest to the successful party, from the time the money was thus taken out of bank. Commonwealth v. Crevor, iii. 121 10. In cases where interest is not of course, but depends on the con duct of the partie s, if the defendant before suit offers to pay as much as is due, and the plaintiff re- fuses to receive it, the defendant is not liable to pay interest. But if the plaintiff insists on too much, and the defendant GENERAL INDEX. 581 offers too little, there is necessity for the suit, and the defendant must pay in- terest. Delaware Ins. Co. v. Delaunic, iii. 295 11. Whether debt or scirefaciasbe brought on a judgment, interest is recoverable ; though in scire facias it is usual to give judgment only that the plaintiffshull have his execution, and the act of 1700 gives interest without a special direction. Ber- ryhill \. Wells, v. 56 12. Rent carries interest from the time it is due, unless from the conduct of the land- lord it may be inferred that he means not to insist on it, or unless he acts in an op- pressive manner by demanding more than is due, where the tenant is willing to do justice, or there are other equita- ble circumstances making the charge of interest improper. Obermyer v. JVichols, vi 159 13. Upon all balances due by defaulting re venue officers, the United States are enti- tled to interest from the time of receiving the money, although the secretary of the treasury has not issued his warrant or- dering the payment of the balance into the treasury. In practice, payments are made without such warrant ; and the in- tention of the act of 2d September 1789 in requiring it, was that the secretary might be advised of the proceedings of the treasurer. It is a matter between the officers of government. Payments with- out warrant are good. Commonwealth v. Lewis, vi. 266 14. A judgment upon which it i agreed that no execution shall issue until the plaintiff has perfected the title to cer- tain land for which the bond that sup- ported the judgment was given, carries interest. ShalUr v. Brand, vi. 435 INTESTATE. See DEBTS. 1. A dies intestate, seized of real estate which descended from his father, and leaving a mother and brother of the ha4f blood, a paternal aunt, and several cou- sins, the children of deceased paternal great uncles and aunts. This is a casus omitsus in the intestate laws, and the es- tate descends to the heir at common law. Cresoe v. Laidley, ii. 279 2. The heir at common law takes in all cases, except in those which are specifi- cally enumerated in the acts of assembly relative to intestacies. ib. 3. Jl being seized of real and personal estate which had come to him from his deceas- ed father, dies intestate without issue, leaving a mother and brothers and sisters of the whole blood. Held, that the estate is to go to the bro- thers and sisters, as if the mother were dead. Harris v. Hayet, vi. 422 INTESTATE LAW. See ADMINISTRATOR, 6. INTESTATE, 1, 2. ELECTION. ISLANDS. In the admeasurement of islands in the Susquehanna, it seems, the practice of surveyors is not to include the land which lies between the bank and the water's edge ; and therefore that a valua- tion, made upon the basis of a survey which did not include that land, would not for that cause be erroneous. Elliot v. Elliot, v. 1 JETTISON. See INSURANCE, 32. JOINTENANCY. 1. A mortgage executed by two out of three jointenants is a severance of the jointe- nancy. Lessee of Simpson \. Jtmmonj, i. 175 2. Where an estate is given to several per- sons jointly, without any expressions in- dicating an intention that it shall be di- vided among them, it must be construed a joint tenancy. But where it appears either by express words, or from the na- ture of the case, that it was the testator's intention that the estate should be divid- ed, it then becomes a tenancy in common. Martin v. Smith, v. 16 3. Jl and B take out a warrant to survey 200 acres of land, pay the purchase mo- ney in equal proportions, and obtain a survey. Before a patent is granted, Jl dies. Held that B has no right of survi- vorship, but that A's estate descends to his heir. Caines v. Lessee of Grant, \. 119 4. Where two or more take out a warrant, pay the purchase money, and obtain a survey, they hold as tenants in common, unless the contrary is set forth ; and either of them may require that the pa- tent shall be made in that way. ib. 5. A last will in Pennsylvania does not sever a jointenancy, notwithstanding the act of 1705, which makes a will good and available in law for the granting, convey- ing and assuring 1 of lands, &c. Duncan v. Forrer, vi. 193 582 GENERAL INDEX. 6. Equity will consider jointenants as te- nants in common, when they purchase lands with a view to expend large sums of money in the improvement of them. vi. 193 JOINT PARTNERS. See ACCOUNT RENDER, 1. PARTNERS. JUDGE. 1. Qutere whether a single judge of the Common Pleas can discharge a defen- dant from an execution issued by that court ? Hecker v. Jarret, iii. 404 2. The copy of a judge's notes of the testi- mony given by a witness upon a former trial between the same parties, and certi- fied by the judge to be a true copy, is not evidence, nor is the original itself. It is no part of his official duty to take notes, nor are the notes in the nature of a deposition. Miles v. O'ffara, iv. 108 3. In general where the law directs a judge to do an official act, it receives his certi- ficate as sufficient evidence that the act has been done. iv. 110 JUDGMENT. 1. If a verdict be found for plaintiff, and dur- ing the pendency of a motion in arrest of judgment the plaintiff dies, judgment may be entered as of a term after the verdict when he was alive. Griffith v. Ogle, i. 172 2. Judgments obtained before a justice of the peace, when filed in the common pleas or made known to administrators, must be paidj&ro rata with judgments in . courts of record. Scott v. Ramsay, i. 221 3. Judgment may be arrested for an objec- tion on the face of the record, though it was not assigned at the time of filing the motion, or of entering an appeal. Grosser v. Eckart, i. 575 4. A judgment after one nihil upon a scire facias post annum et diem may either be set aside for irregularity, or reversed on error ; but the irregularity cannot be noticed collaterally in another suit ; and even if the judgment be reversed or set aside, a purchaser at sheriff's sale, to whom a deed has been made, will hold the land. Lessee of Heister\. Partner, ii.40 5. Judgment in a criminal case cannot be reversed in part and affirmed in part. If bad in part, it must be reversed altoge- ther. Jackson v. The Commonwealth, ii. 79 6. Qutere, whether a sale of lands under a younger judgment, affects the lien of an older one. Young v. Taylor, ii. 218 7 An execution within a year and a day, continues the lien of a judgment, without resorting to a scire facias under the act of 4th Jpril 1798. ibid. 8. A judgment in Pennsylvania is a lien on every kind of equitable interest in land, vested in the debtor at the time of the judgment. Held therefore to bind the in- terest of a Connecticut settler in land within the seventeen townships, who was entitled by the act of 1799 to obtain a patent upon terms, although not he, but his assignee, after the judgment and the sale, complied with the terms, and then for the first time obtained a confirmation. Carkhuffv. Anderson, iii. 4 9. A judgment not revived by scire facias within five years from its date, ceases to be a lien upon real estate, as well against subsequentjudgmentcreditors.as against subsequent purchasers. Sank of North America v. Fitzsimons, iii. 342 10. A judgment creditor who had bought the defendant's lands at sheriff's sale, and conveyed them to A, appeared to a scire facias post annum et diem by another judgment creditor against the same de- fendant, gave notice that he should insist upon fraud and combination between plaintiff and defendant, as a defence to to the scire facias, and in other ways took part in the cause, but did not attend at the trial, nor give any evidence, and of course a verdict and judgment were en- tered for the plaintiff". A knew and ap- proved these acts, and had a bond of in- demnity from the judgment creditor first mentioned against all other claims to the land. Held that it was not competent to A and the judgment creditor or his re- presentatives afterwards to controvert the judgment upon the ground of fraud. Heller v. The Lessee of Jones, iv. 61 11. The merits of a judgment rendered by a court of competent jurisdiction, while the same remains in full force and unre- versed, can never be re-examined or overhaled in another suit. Bond v. Gar- diner, iv. 269 12. Verdict for the plaintiff in the court be- low. Motion for a new trial, on which the judges were equally divided. Afterwards motion for judgment for the plaintiff, two judges being present. One ordered judg- ment to be entered, the other objected to the entry, whereupon the clerk enter- ed judgment : Held that this was a good judgment, this Court presuming that the dissenting judge intended merely to en- GENERAL INDEX. 583 ter his dissent on the record, and not to arrest the regular course of law, by pro- hibiting the prothonotary from making 1 a proper entry Cahill v. Benn, vi. 99 13. A judgment is not a lien upon lands subsequently purchased by the defend- ant, and aliened before execution issued Colhonn v. Snider, vi. 135 14. If the writ is in trespass, and the decla- ration is part in trespass and part in case, the defendant cannot move in arrest of judgment, if the jury have found in his favour upon the count in case. Wenberg v. Homer, vi. 307 15. A judgment, upon which it is agreed that no execution shall issue until the plaintiff has perfected the citle to certain land for which the bond that supported the judgment was given, carries interest. Shatter v. Brand, vi. 435 JUDICIARY. The Supreme Court has a right to pro- nounce an act of the legislature to be unconstitutional. Emerick \. Harris, i. 416 JURISDICTION. See QUARTER SESSIONS, 1, 2, 3, 4. 1. A state court has no jurisdiction of a suit against a consul; and whenever this de- fect of jurisdiction is suggested, the court will quash the proceedings ; it is not necessary that it should be by plea before general imparlance. Mannhardt v. Soderstrom, i. 133 2. The jurisdiction of a foreign court may be examined, not only as to the authority under which it is erected, but as to the subject over which it is exercised ; but if the court is duly constituted, and has jurisdiction over the subject, its decrees in rem cannot be revised by the court of another nation. Cheriot v. Foussat, iii. 220 3. The decree of a foreign prize tribunal of general jurisdiction, condemning pro- perty for having been concerned in the violation of law, is conclusive upon the point that the seizure of the property was mude in conformity with the law, it being a matter within their jurisdiction to decide. ibid. 4. It is not necessary in order to give juris- diction to a Prize Court, that the pro- perty captured should have been brought within the dominions of the captor. Seiz- ure and safe possession are all that are ne- cessary to give jurisdiction, and whether the possession be within the dominions of the captor or a neutral, is immaterial. The possession of the particular captor is the 'possession of his sovereign every where. And although the property has been sold as perishable goods by the prize agent, and taken into the neutral country of the owner before condemna- tion, still the condemnation is valid, and confirms the original taking. hi. 220 5. A court of common law has no jurisdic- tion of a cause whose object it is to re- coyer property taken and condemned as prize, for having contravened a law of France, interdicting trade with her re- volted subjects in St. Domingo. ibid. 6. The Supreme Court cannot discharge an insolvent debtor, who is in confinement under process from the District Court for the city and county. Ex parts Ogle, v. 518 7. In an action of replevin, if an issue be joined upon rent in arrear, and there is any thing to shew the amount of rent claimed, this, and not the damages laid by the plaintiff in his declaration, will settle the jurisdiction of the Court. But where the jurisdiction depends on the amount in controversy, there is nothing to decide the question, in actions sound- ing merely in tort, but the damages laid in the declaration. Ancora v. Burns, v. 52 8. Unless it appears by the record of the Quarter Sessions that that Court had not jurisdiction, the Supreme Court will pre- sume that it had. Baltimore Turnpike case, v . 48i JUROR. See VERDICT. 1. Jurors not drawn by lot for the present- court, but drawn upon a former occasion and continued over, are not entitled to pay from the county, but from the losing party. Shererv. Hodgson, i. 535 2. The testimony of jurors is not admissible to impeach their verdict upon the ground of misconduct. Lessee of Cluggage v. Swan, i v . 150 3. If after a jury are sworn, and before the verdict, one of the parties learns that & juror before he was empannelled, de- clared that he had made up his mind against him, he must make it known at once, if he intends to rely on it. He must not take the chance of a verdict in his favour, and upon its being the other way, move fo>- anew trial upon the declaration of the juror. M : Cork'le v. Binnt, v. 340 4. The juror implicated, may be examined to shew that he did not make the decla- rations imputed to him ; but neither he, nor any of the jurors can be asked, whe- 584 GENERAL INDEX. ther he was not in favour of the lowest sum that had been named for damages by any of the panel. v. 340 5. A precept to the sheriff, commanding him to cause to come &c. " 24 good and 1 lawful men of the body of the county of ' C. aforesaid, then and there to inquire, ' present, do and perform such things as OH behalf of the Commonwealth shall ' be enjoined them, and also a competent ' number of sober and judicious persons, 'and none other, as jurors for the trial ' of all issues &c ," contains no command to convene the petit jurors from the body of the county of C. And therefore if it does not appear by the return of the panel, that the petit jurors in fact came from the body of the county, the error is fatal. White v. The Commonwealth, vi. 179 6. If process goes to the sheriff and county commissioners to draw a jury for a Court of Oyer and Terminer, and it be not re- turned so that it shall appear in some part of the jury process that the jurors have been legally drawn, it is error. Eaton v. The Commonwealth, vi. 447 JURY. 1. 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 of JVeffv-. Neff, i. 350 2. There is no time limited within which a party must apply for a special jury. ibid. 3. The plaintiff, a master of a vessel, prov- ed that while abroad he had expended money upon account of his owner the de- fendant, for seamen's wages, provisions, port duties, &c. without shewing haw much; and the omission to produce vouchers, was in some measure accounted for by the capture of his vessel, and the loss of his papers. Held, that under these cir- cumstances the jury might make what they thouglit a reasonable allowance for disbursements without further evidence. Sutger v. Dennis, ii. 428 4. A jury may take out with them any writ- ings that have been given in evidence, without distinction as to sealed or un- sealed, except the depositions of witness- es. Alexander v. Jameson, v. 238 JUSTICE OF THE PEACE. See APPEAL, 2. 5. 7. NEGRO AND MULATTO, 2. 1. A justice of the peace cannot enter judg- ment upon a wan-ant of attorney. He must proceed by warrant in the nature of summons or capias. Alberty v. Davi- on, i. 105 2. The record of a judgment by a justice 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. Drum v. Snyder, i. 381 3. The act of 19th April 1794, called the 20/. law, giving jurisdiction to justices of the peace in certain cases not exceed- ing 201. is not unconstitutional. Emerick v. Harris, \. 416 4. Justices of the peace have nojurisdiction in trespass, when the damage exceeds twenty dollars ; and although the sum- mons be in debt or demand, yet if the evidence sent up shews it was in tres- pass, judgment for a greater sum will be reversed. Dunn v. French, ii. 173 5. The defendant in a suit before a justice of the peace, is entitled to enter special bail, to obtain a stay of execution, after the twenty days allowed for an appeal have expired, provided an execution has not already issued. Mann v. Alberti, ii. 195 6. In a proceeding by a justice of the peace, &c. against a turnpike company, for per- mitting their road to be out of repair five days, it is necessary that it should dis- tinctly appear in the inquisition that the road has been out of repair five days, and that the part of the road complained of be stated to be in the county in which the justice has jurisdiction. Commonwealth V. The Willow Grove Turnpike Company, ii.257 7. A magistrate cannot devest himself of his judicial capacity to administer an oath, while his commission is in force ; and therefore whenever he administers an oath it shall be taken to have been done judicially, although it does not so appear upon the face of the affidavit. Commissioners of Berks v. Ross, iii. 539 8. No verdict can be recovered against a justice of the peace for the penalty of 50/.imposed by the act of 14th of February 1729, upon his joining in marriage a minor without the consent of parent or guardian, unless previous notice is given to the justice, according to the act of 21st March 1772. But although it is ne- cessary that this notice should be given, and should precisely indicate the cause of action, it is not necessary that it should state the kind of writ that it is intended to sue out. Mitchell v. Cowgill, iv. 20 9. Performing the marriage ceremony by a justice, is an act in the execution of his office, because he has authority by GENERAL INDEX. 585 the act of 1700 to sign certificate* of marriage. iv. 24 10. The judgment of the Court of Common Pleas upon the proceedings of two jus- tices under the landlord and tenant law, brought before that court by certiorari, is not final, but may be taken to the Su- preme Court by writ of error. Clark v. Teat, iv. 185 11. A justice of peace has jurisdiction of a suit by an officer to recover his fees, provided the amount does not exceed one hundred dollars. Lyon v. M'Manus, iv. 167 12. A justice may give judgment before the return day of his process, if the parties voluntarily appear, and proceed to the hearing. Buckmyer v. Dubbs, v. 29 13* A justice must set forth the date of his judgment j but if the day of appearance is mentioned, and then the judgment is set forth without day, this Court will presume that it was rendered on the appearance day. ibid. 14. Upon a certiorari to a justice of the peace, this Court may inquire into the evidence given before him ; but no parol evidence can be heard upon a writ of error to the Common Pleas to remove a judgment there rendered upon a certio- rari to a justice. ibid. 15. A justice of the peace may issue a scire facias, as well to introduce new par- lies, as to enforce a recognizance of bail. Berryhill \.lfells, v. 56 16. Upon an appeal from a justice of the peace, a jury may find a sum due to a greater amount than was within the jurisdiction of the justice. It does not follow from such a verdict, that the jus- tice had no jurisdiction. J\l l Kinky v. M'CaUa, v.' 600 17. The act of 1st March 1799, which ex- tends the powers of justices to suits brought for the recovery of damages for any trespass, wrong, or injury, done or committed against the real or personal estate of the plaintiff, where the damages do not exceed 20 dollars, (afterwards in- creased to 50 dollars,) only comprehends cases where the damage arises by an actual or immediate injury operating upon the body of the property. .VlasteUer v. Trimbly, vi. 33 18. In a notice to a justice of the peace, that unless he tenders sufficient amends within thirty days, a writ will be sued out against him &c. it is not necessary to insert in the notice the kind of writ, whether capias or summons, nor the kind VOL. VI. of action, whether trespass or case. Litle v. Toland, vi. 83 19. To a justice of the peace in Washington county, it is a sufficient notice of the abode of the party's attorney, to describe him as T. B. of Washington, that meaning in common parlance the town of Washing- ton, ibid. 20. A justice of the peace who attends as a witness for the Commonwealth in crimi- nal cases, is entitled to his daily pay, ex- cept for one day during each court, when he is bound to attend for the purpose of returning his recognizances. Common' wealth v. The Commissioners of Philadel- phia, vi. 397 JUSTIFICATION. 1. In trespass by the defendant in an exe- cution, against a justice of the peace, a constable, and the plaintiffs, the consta- ble may justify under the warrant with- out shewing the judgment, if there is a several justification by him. Kerlin v. Jfea- cock, jii. 215 2. If two or more defendants plead not guilty " with leave to justify," it amounts to a several justification by each. ibid. 3. A constable and his assistant may justify under an execution from a magistrate, though itfbe clearly irregular, e.g. a joint execution against principal and buil upon separate judgments. Paul v. Vankirk, vi. 123 LACHES. See WARRANT AND SURVEY, 11. 1. An affidavit that A was a material wit- ness, that he had gone to Lisbon and was expected to return by the next court, and that the party did not know of his going until three or four days before he went, and did not advert to the circumstance of his being a material witness, is not a sufficient ground for postponing the trial. Davidson v. Brown, iv. 243 2. A being the creditor of B for a sum of money, took from him as security a bill of lading indorsed in blank, for goods shipped to the West Indies. A took no steps to obtain the possession of the goods on their arrival. B died. C, ano- ther creditor, laid an attachment upon the goods, and had judgment for them in the hands of the garnishee. Held that A by his negligence lost his right to the goods or the proceeds, as against C. Bank of North America v. M'Catt, iv. 371 4E 586 GENERAL INDEX. LANDLORD AND TENANT. 1. Notice to quit at the end of a certain year, is not waived by the landlord's per- mitting the tenant to remain in posses- sion an entire year after the expiration of the notice, Boggs v. Black, i. 333 2. The notice to quit required by the land- lord and tenant law, must be given three months before the end of the term. Brown v. Vanhorn, i. 334 3. A tenant cannot resist his landlord's re- covery in ejectment, by virtue of an ad- verse title acquired during his lease. Lessee of Galloway v Ogle, ii. 468 4. The judgment of the Court of Common Pleas upon the proceedings of two jus- tices under the landlord and tenant law, brought before that court by certiorari, is not final, but may be removed to the Su- preme Court by writ of error. Clark v. Teat, iv. 185 5. The 22d section of the act of the 20th of March 1810, which makes the decision of the Common Pleas upon appeals from justices, final, does not apply to proceed- ings under the landlord and tenant law.z'6. 6. Jl leased a lot of ground to B for three years, and B covenanted to deliver up possession at the end of the term ; it be- ing agreed that the possession held by B should have no effect upon the right of either party, there being a controversy between them about the title. The pos- session not being delivered up, A brought ejectment ; and the parties then agreed that the title should be tried in the suit, and that if the court should think the right of possession was in Jl, he should have all the advantages of actual posses- sion. Held that this agreement authoriz- ed B, notwithstanding the lease, to shew that he had a better right to the lot than Jl. Lessee of the Mayor of Philadelphia v. Schuylkill Bridge Company, iv. 283 7. A lease for nine months, or any time certain less than a year, is a lease for one or more years within the landlord and te- nant law , and if the rent is " payment of "taxes and daubing and chinking a cer. "tain house," tt is a certain rent within that law. Shaffer v. Sutton, v. 228 8. The goods of a tenant takenin execution upon the premises, are liable to the pay- ment of rent to the landlord, up to the time they are taken in execution, though it be in the middle of a quarter ; but not up to the time of sale. Binns v. Hudson, v. 505 9. If the tenant agrees to pay a certain rent, clear of all deductions for taxes which he covenants to pay, the landlord cannot claim a preference for the taxes due and unpaid, but only for the rent. v. 505 10. Although a lessee cannot controvert the title of his lessor, yet this rule exists only where the lease has been taken, without fraud, force, or illegal behaviour on the part of the lessor, and not where the lessor has threatened the lessee to turn him off the land by force of arms, unless he would take the lease. Lessee of Hamilton v. Marsden, vi. 45 11. If a tenant for life purchases an adverse title without the consent of the rever- sioner, his children and all persons who come in under him or them, are estop- ped from controverting the reversioner's right to possession, in the same manner as tenant for years or his assignee would be. Caufman v. Congregation of Cedar Spring, vi. 59 12. Although the landlord and tenant law says the judgment of the justices shall be final and conclusive, a writ of error lies. Clarke v. Patterson, vi. 128 13. A writ of error is not a supersedeas to proceedings in the Common Pleas, be- tween landlord and tenant. Grubbv. Fox, vi. 460 LAND OFFICE. See MANDAMUS, 6. 1. The act of 22d April 1794, which pro- hibits the land office from receiving ap- plications for certain lands after the date, does not prevent an alteration of the names of former applicants. Faulkner v. The Lessee of Eddy, i. 188 2. An appeal does not lie from the board of property to the Common Pleas, although an act of assembly directs the officers of that board to do certain things in case of an appeal. The only way of contesting their decision, is by an action between the parties in the ordinary way. The Commonwealth v. Cochran, i. 324 3. It has been the practice in the land office since the revolution, to accept surveys made even since the year 1767 upon old warrants,notwithstanding they contained more than ten per cent, surplus. Lessee of Steinmetz v. Young, ii. 520 LANDS. Lands devised by a residuary clause are subject to the payment of legacies, upon a deficiency of the personal estate, if the testator has blended his real and per- sonal estate together in the devise of the residue. Hassanclever v. Tucker, ii. 525 GENERAL INDEX. 587 LARCENY. 1. Under the act of 5th April 1790, which declares that larceny of bills obligatory shall be punished in the same manner as larceny of any goods or chattels, the felo- nious taking, &c. of one bill obligatory, is punishable as a larceny. The Common- wealth v. Messingtr, i. 273 2. The notes of an unincorporated bank in Pennsylvania, are not the subject of lar- ceny. Sjiungler v. The Commonwealth, iii. 533 3. So long as wild bees remain in the tree where they have hived, notwithstanding the tree is upon the land of an individual, and he has confined them in it, they are not the subject of a larceny. Wallis v. Mease, iii. 546 4. A person who steals goods in another state, and brings them with him into this state, cannot be indicted here for the fe- lony. He is to be treated as a fugitive from justice. Simmons v. The Common- wealth, v. 617 LAW OF NATIONS. See MUNICIPAL LAW. The law of nations is part of the law of Pennsylvania. Wilcocke v. The Union In- surance Company, ii. 581 LAY-DAYS. See FREIGHT. LEADING QUESTION. Set WITNESS, 17. LEGACY. See CONSIDERATION^ 3. 1. The testator ordered his just debts and funeral expenses to be paid by his ex- ecutors, and then bequeathed a legacy of 500?. to A. to be paid her in one year after his decease, and in case of her death to be divided among her three sisters. He also devised specific real estate to B. and a legacy of 100/. to be paid at lawful age, but in case of his death unmarried, the land and money to sink into his resi- duary estate. The rest and residue of his estate real and personal he devised and be- queathed to his brothers and sisters their heirs and assigns as tenants in common, provided that his sister M. should keep the whole in her possession during her widowhood. Held, that the testator hav- ing blended his real and personal estate, the real was subject to the burden of .-A- legacy, upon the deficiency of the per- sonal ; and that the legacy was not to wait for the expiration of JW.'s life estate in the land, but to be paid in one year after the testator's decease. Hassandever v. Tucker, ii. 525 2. Assumpsit will lie for an ascertained money legacy ; and the plaintiff HI ay in the same count go for an unascertained residuary legacy. Clark v. Herring, v. 33 3. The testator by his last will, bequeathed to his son ./. 100/. cash ; and then direct- ed that " the remainder of all the money " arising from the sale of his plantation " and the personal estate, after the afore- " said portions were paid (of which John's "was one) should be equally divided " among his six children or their heirs." Prior to the date of the will, the testator paid his son 50/. and took his receipt for 501.. portion. /. died before the testator. Held that the legacy of 100/. to /. had lapsed. Weishaupt \. Brehman, v. 115 4. The testator bequeathed to his daughter R. the interest of 400/ , to be paid her annually during her natural life. Held, that the first payment was to be made at the end of the first year from the testator's death. Eyre v. Golding, v. 472 5. There is a difference between a legacy of a sum of money to one for term of life, and a bequest of a sum to be paid annually for life. In the former case, the legacy, not being payable till the end of a year from the testator's death, carries no interest for that year. But in the lat- ter, the first payment of the annuity must be made at the end of the first year, or the legatee will not receive the an- nuity annually during his life. ibid. 6. The testator bequeathed to the four chil- dren of his nephew J. M. the sum of 400/. to each of them; which sums he directed to be put out on interest at the expira- tion of two years after his decease, for the benefit of the said legatees respec- tively, and the principal and interest to be paid as they should respectively attain twenty-one; but if any of them should die in his or her minority without issue, the share of such child so dying should be equally divided among his or her bro- thers and sisters. Held that no interest was recoverable by the legatee during minority ; but that it must accumulate, and in case of the legatee's death ander age, form a part of the share to be divid- ed amon'sr the survivors. Miles v. Wister, v.477 7. The testator bequeathed two thousand pounds " to the children and grand-chil- 588 GENERAL INDEX. ' dren of bis brother /. j. deceased, ex- 'cepting M.F" (who was a grand-child of /.P.) " and her children, she and they 1 not needing it, to be equally divided ' among those of them who may be then 1 living," (viz. at the death of the testa- tor's widow) " saving that his cousin " S. It should have two shares thereof." Held, I. That the great grand-children of /. P. took equally with children and grand-children. 2. That all who were alive at the death of the testator's wi- dow, whether born before or after the testator's death, were entitled to take. Pcmberton v. Parke, v. 601 8. If a testator blends his real and personal estate in a general devise of the residue, the legacies are a charge upon the lands. Witmun v. JVbrton, vi. 395 9. The testator devised to trustees the divi- dends and income of 8000 dollars old six per cent, stock of the United States for the separate use of his niece, and upon the trust and confidence that they would re- ceive the dividends and income, and ap- ply the same for the support of tlte said niece and the maintenance and education of her children. He also gave to the same trustees the principalofthe said 8000 dol- lars as the same should be paid off and discharged by the government, to be held in trust and applied as he had be- fore directed with regard to the divi- dends and income thereof. Held, that the trust did not cease upon the death of the niece and the arrival of her children at lawful age ; but that the trustees were to pay to the children the entire dividends of the stock, including the annual instalment of principal, until the whole should be redeemed by the United States. Bringhurstv. Cuthbert, vi. 398 LEGAL ESTATE. A warrant and survey with payment of the purchase money, are to be considered in Pennsylvania in the same light as the le- gal estate in England, and are not to be distinguished, as to conveying, intailing, and barring intails, from estates strictly legal. Lessee of Willis v. Bucher, ii. 455 LETTERS TESTAMENTARY. As to personal property, the probate of a will is conclusive, while the letters tes- tamentary remain unrevoked. As to reality, it is but prima facie evidence. Coates v. Hughes, iii. 498 LEVY, Ste PURCHASER, 3. A levy upon any thing less than a whole tract or lot of land is void. Snydtr \ Castor, ii. 216 note. LIBEL. 1. The act of assembly of 16th March 1809, which enacts that no person shall be sub- ject to prosecution by indictment for the publication of papers examining the pro- ceedings of the legislature or any branch of the government, or for investigating the official conduct of officers or men in public capacity, is not unconstitutional. Commonwealth v. Duane, i. 601 2. Upon an indictment for writing and pub- lishing a libel on the characters of A and B, and also upon the memory of C de- ceased, the jury found the defendant " guilty of writing and publishing a bill " of scandal against A and B, but not "guilty as to any C deceased." Judg- ment reversed, because the defendant was not found guilty of the offence charg- ed in the indictment. Sharjf v. T/ie Com- monwealth, ii. 514 3. To print and publish of A, " that he has " been deprived of a participation of the " chief ordinance of the church to which " he belongs, and that too by reason of " his infamous, groundless assertions," is a libel. JWCorkle v. Jiinns, v. 340 4. So is any malicious printed slander which tends to expose a man to ridicule, con- tempt, hatred, or degradation of charac- ter, ibid. LIEN. See TRUSTEE, 1. 1. The proprietor of a ground rent in fee, who obtains a judgment in covenant for the arrears, and sells the land, is entitled to be paid the whole of the rent in arrear out of the proceeds, in preference to older judgments. Bantleon v. Smith, ii. 146 2. An execution within a year and a day, continues the lien of a judgment, without resorting to a scire facias under the act of ^a. April 1798. Young v. Taylor, ii.218 3. )u>//< e, whether a report of the auditors of commissioners' accounts is a lien upon the estate of the delinquent commis- sioner, unless it is filed in the office of the Common Picas, by order of the court, and an entry of the order made upon the docket or court minutes. Irish v. The Common-wealth, iii. 91 6. A judgment not revived by scirc facias within five years from its date, ceases to be a Hen upon the real estate of the de- fendant, as well against subsequent judg- . ment creditors, as subsequent purcha- sers. The Bank ofj\'orth America v. Fitz- shnons, iii. 342 7. -/I received a sum of money from B, and gave him a receipt, stating it to be re- ceived as an advance on a shipment of flour then making on board a certain ship, to be consigned to the house of B in Manchester. The flour was bought by A t after this receipt, and delivered by the vendor on board a ship freighted by A. A having stopt payment about the same time, agreed with the vendor of the flour, who was ignorant of the agreement with K, to rescind the contract of sale, and gave him back the bill of parcels, with a request that he would take possession of it. Held, that B, or his house, had no lien upon the flour that could prevent A from rescinding the contract with the vendor, andre-deliveringthe flour to him. To con- stitute a lien upon a corporeal chattel, possession is essential ; and although, where a fund is appropriated to an indivi- dual, equity considers the appropriation :is an assignment, and will protect it, yet tliis is only where from the nature of the fund, manual possession and transfer are impossible. If the chattel is susceptible of delivery, an appropriation without de- livery cannot prevail against a dona fide purchaser or quasi purchaser, without notice. Clems'jn v. Davidson, v. 392 8. Where a replevin issued for flour on board a ship, and the master and con- signee made no question about the i're'ght, but were only desirous to pre- vent the ship from being implicated in the controversy between the respective claimants, both of whom were willing to send the flour on in the ship. Held, that the jury were warranted in finding that the clarm to the payment of freight, be- fore the flour should be delivered to the plaintiff, was waived by the master ; and that the judge was right in instructing them that the master's pleading property in the adverse claimant, and not in him- self, was evidence of the waiver. Clem- son v. Davidson, v. 392 9. Square, whether a master lias any lien for freight before the ship breaks ground. v. 392 10. An agent who effects insurance for his principal, and becomes answerable for the premium, has a lien upon the policy, so long as he retains it; but if he delivers it up, his lien is gone; and although the underwriters are entitled to deduct the premium, if unpaid, from the loss, yet if paid by the agent, he has no equity to stand in their place and to claim pay- ment out of the sum due for the loss. Cranston v. The Phil. Ins. Co. v. 538 11. A ground landlord does not lose his lien for the rent due, by taking a bond and warrant of attorney for the arrears, and entering up judgment. Gordon v. Carrey, v. 552 12. The mortgagee of a lot of a ground, has a lien, not only on the ground, but on the buildings erected subsequent to the mort- gage, in preference to brickmakers and other material men who claim under the lien law of 1806. Lylev. Ducomb, v. 585 13. A mortgage given to indemnify themort- gagee against loss in consequence of his drawing notes in favour of the mortgagor, is as valid where the notes are to be drawn in futuro, as where they are already drawn; and if the parties by indorsement on the mortgage agree, that instead of drawing notes ibr the whole amount, the mortgagee shall indorse part, for which the mortgage shall be a security, the mortgagee will have a lien for the in- dorsements, not only against the mort- gagor, but also against the material men, who subsequently erect buildings on the ground. Lyle v. Ducomb, v. 585 14. The seller of land, although he conveys it, retains an equitable lien against the purchaser, and all claiming under him, with notice that the purchase money is unpaid. Irvine v. Campbell, vi. 118 15. A judgment is not a lien upon lands subsequently purchased by the defend- ant, and aliened before execution issued. Colhoun v. Snider, vi. 135 16. A discharge under the insolvent law of 13th March 1812, does not disturb the lien of a judgment. Clark- v. Israe!, J vi. 391 LIMITATIONS, ACT OF. 1. 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 belaid. Smith r. Porter, i. 209 590 GENERAL INDEX. 2. It is the spirit of the act of limitations to allow twenty-one- years from the time that a person might make an entry, and support an action, the statute not stop- ping after it has begun to run, in conse- quence of i fancy, coverture or any other disability. But if a party has not a right of entry, but only a possibility which may give a nght of entry at a future day, the statute does not run against him until that right accrues. Hence, notwithstand- ing the next heir in tail releases to the tenant in tail possession, the statute does not run against the releasor, until the death of the tenant in tail without issue. Lessee of Hall v. Vandegrift, iii. 374 3. Title by improvement, is merely a right of pre-emption, until the purchase is made from the Commonwealth. Up to that time, possession is not adverse to, but iwtfer the Commonwealth; am! there- fore though it continue twenty -one years, it is no bar by the Statute of Limitations to the Commonwealth or her grantee. Morris v. Thomas, v. 77 4. If JL guarantees to B the performance of any contract he may make with C, and six years elapse after the contract be- tween B and C, and before the bringing of suit against A upon his guaranty, no acknowledgment by C subsequent to the contract, can take the case out of the sta- tute of limitations as to A. But the decla- rations of C are evidence against A to prove the contract between B and C, though made subsequent to the contract. Meads v. M' Dovsel!, v. 195 5. An acknowledgment of a subsisting debt, made within six years before action brought to the executors of the creditor, will not, where the issue is upon the sta- tute of limitations, support a declaration upon a promise to the testator himself. There should be a special count. Jones v. Moore, v. 573 6. An acknowledgment does not revive the old debt, but is evidence of a new pro- mise, for which the old debt is a consi- deration, ibid. 7. The administrator of the drawer of a note wrote several letters to the execu- tors of the indorsee, recognising the ex- istence of the demand, but declining to take up the note. He however finally wrote that he would be in town in a few days, and wiild settle the -matter in some -.'.atj. Held tltat this was sufficient evi- dence of a promise to pay. ibid. LOCATION. Sec WARRANT AND SuRVEY,,4. 33. 1. The owner of a descriptive location, who has paid the surveyor's fees, and given orders to him to survey it according to its description, is not bound by a survey in another place, until he has been in- formed of it, and has acquiesced in it ; and his omission to look after the sur- vey, will not, under such circumstances, amount to an abandonment of his loca- tion. Lessee ofJJavis v. Keefer, iv. 161 2. In the case of a shifted location, where the survey is made on land different from that described, it has no effect, except against those who have notice of it, until return into office, and acceptance by the surveyor-general. Lessee of Lauman v. Thomas t iv. 51 3. Upon a descriptive location, the deputy surveyor surveyed more than the usual excess, and without the knowledge of the owner, cut off a part of the survey containing the best lands, and answering most accurately to the description, for which another person at the deputy's in- stance entered a location, and got a re- turn for himself. The owner of the first location not being informed of the cir- cumstance, entered upon the disputed part, and improved it. Held, that the re- turn of survey did not prejudice the old- est proprietor, nor benefit the youngest ; and that the oldest had title. Caufman v. Presbyterian Congregation, vi. 59 LOST DEED. See RECITAL. LOTTERY. 1. The defendant purchased of the plaintiff five hundred lottery tickets, for which he gave his promissory note, payable one day after the conclusion of the drawing of the lottery. There was an irregularity in the drawing, caused by inserting in one wheel thirty-nine numbers twice, and omitting thirty-nine numbers alto- gether ; but none of the defendant's num- bers were omitted, all the prizes were duly paid, and he never offered to return any of the tickets purchased by him. Held, that it was not competent to the defendant, to resist the payment of his note upon the ground that the lottery was not drawn. Neilson v. 'Melt, ii. 301 2. A ticket in a lottery, sold after the time limited by law for completing the sales, confers no right to recover the prize that may be drawn against it. Biddis v. James, vi. 321 LUNATIC. Before the return of the inquisition taken under a commission of lunacy, the Court GENERAL INDEX. 591 may appoint a receiver to the lunatic's estate. In the matter of Kenton, v. 613 MANDAMUS. 1. A mandamus lies to the supervisors of the roads, to compel them to pay an or- der drawn upon them by justices of the peace, under the direction of an act of as- sembly. Common-wealth v. Johnson, ii. 275 2. The Supreme Court will not grant a man- damus to the trustees of an incorporated church, to restore the prosecutor to the possession of a pew, to which he claims title, inasmuch as he has another remedy by action on the case against the person disturbing him. Commonwealth v. Rosse- ter, ii. 360 3. A mandamus does not lie to the Common Pleas to reinstate an appeal which they have dismissed, because in the first place their order of dismission is an award in the nature of a judgment, upon which a writ of error lies, and in the next place, a mandamus cannot go to an inferior court to compel them to make any parti- cular decision, but merely to decide, which the Common Pleas have already done. Commonwealth v. The Judges of the Common Pleas, iii. 273 4. Qutere, Whether a mandamus lies from the Supreme Court to the Common Picas ? find. 5. Wh^re a ministerial act is to be done, and there is no other specific remedy, a mandamus will lie to do the act required ; but where the complaint is against a person who acts in a judicial or delibera- tive capacity, he may be ordered by man- damus to proceed to do his duty, by de- ciding and acting according to the bes of his judgment, but the court will not direct him in what manner to decide Commonwealth v. Cochran, v. 8< 6. Hence a mandamus will lie to the secre tary of the land office, to compel him to make the calculations of purchase mone] and interest on lands sold, if he has omitted or wholly refused to doit ; but i will not lie to command him in wha manner to make the said calculations that act not being merely ministerial nor, if he has already, under the direc tion of the board of property, made th calculations in an erroneous manner, wil it lie to compel him to make them in proper manner. ibid 7. An act of the legislature directing th county commissioners to draw an orde for the amount of a school-master's bill for educating poor children, if they ap prove thereof, invests them with the po\ve of approving or disapproving ; and if they disapprove, though for bad reasons, this Court cannot compel them by mandamus to draw the order. The Commonwealth v. The County Commissioners, v. 536 . The Supreme Court may issue a manda- mus in any of the Districts, notwith- standing the act of 24th Feb. 1806, pro- hibits that Court from trying issues of fact in Bank; because as the return to the mandamus must be received as true, until proved to be false in an action for a false return which may be brought in. some other court, the Supreme Court may proceed to the end of the cause without trying any fact. The Common- wealth v. Commissioners of Lancaster County, vi. 5 9. A mandamus is not a civil case within the 19th section of the act of 24th Febru- ary, 1866, the intent of that section be- ing, to take away the original jurisdic- tion in civil actions, of which the inferior courts had jurisdiction, and not to t ke it away in cases of mandamus and the like, of which those Courts had no juris- diction, ibid. 10. The Supreme Court will not grant a mandamus to the County commissioners to draw an order upon the treasury, if there is no money in the treasury to pay it. ibid. 11. The board of property has the same ju- dicial power, in regard to donation lands, as in other cases; and after they have deliberated and decided against issuing patents, a mamlamus does not lie to com* pel them. Commonwealth v. Cochran, vi. 456 MARRIAGE. See JUSTICE OF THE PEACE, 8, 9. Marriage is a civil contract, which may be completed by any words in the present time without regard to form : but if a man says to a woman, " I take you for " my wife," and the woman answers, ** to be sure he is my husband, good " enough," referring to a past illegal marriage and cohabitation, this is no marriage. Hantz v. Sealy, vi. 405 MAYOR'S COURT. A writ of error to the Mayor's Court, to remove the record of a prosecution for felony, or for a misdemeanor which sub- jects the offender to an infamous puuish- ment, is not grantable of course, but must have the consent of the attorney general, or a judge of the Supreme Court. The Commonwealth v. Profit, iv. 424 592 GENERAL INDEX. MESNE PROFITS. In an action for mesne profits, the record of tin judgment in ejectment is conclu- sive evidence that the defendant was in possession at the time the ejectment was brought, and also as to title during the whole time laid in the demise; but. it is not evidence of the length of time that the defendant was in possession. Hailey v. Fairplay, vi. 450 MILITIA. See COURT, 1. MISDEMEANOUR. An indictment charged that Jl unlawfully, secretly, and maliciously, with force and arms, broke and entered at night the dwelling housed jfi, with intent to disturb the peace of the Commonwealth ; and after entering the house, unlawfully, wil- fully, and turbulent ly, made a great noise in disturbance of the peace of the Com- monwealth, and did greatly misbehave in the said dwelling house, and did greatly frighten and alarm the wife of the said B, whereby she miscarried, &c. Held> that the offence laid was indictable as a misdemeanour. Commonwealth v. Tay- lor, v. 277 MISTAKE. See AGREEMENT, 1. MONEY HAD AND RECEIVED. 1. Where goods were delivered to a factor to sell and remit, and he sold a part pay- able in coffee, and afterwards remitted sugars on account, but gave no further statement either of sales or receipts, the jury were at liberty to presume that the amount sales had come to his hands in money, and therefore the principal might recover it upon a count for money had and received. Schee v. Has singer, ii. 325 2. Where the principal assigns a fund to trustees to pay a creditor whom the sure- ty afterwards pays, and the proceeds of the fund are then paid over by the trus- tees, the surety is entitled to the benefit of the fund, and may recover it from the person who possesses it, in an action for money had and received, in his own name. Miller v. Ord, ii. 382 3. An action for money had and received will lie against an executor in his perso- nal character, to recover a distributive portion of the testator's estate not dis- posed of by his will, and which has come to the executor's hands as trustee. H'ilson v. Wilson, 'in, 557 MONEY LAID OUT AND EX- PENDED. Where an agent proves the disbursement of money for his principal, but is unable to fix the quantum, and accounts for not producing vouchers, by shewing a loss or spoliation of his papers, the jury may make a reasonable allowance without further evidence. Sulgerv. Dennis, ii. 428 MORE OR LESS. What excess or deficiency may be intend- ed by " more or less." Smith v. Evans, vi. 102 MORTGAGE. See JOINTENANCY, 1. 1. The assignee of the administrators of a mortgagee may maintain an ejectment in his own name. Lessee of Simpson v. Am- mons, i. 175 2. When the question, whether mortgage or not, depends wholly upon writings, it is a question of law for the Court, and should not be left to the jury. Otherwise, if it depends partly on parol evidence Warfv. Hoixdl, v. 4-99 3. Jl, in consideration of 200 dollars, exe- cuted and delivered to B, an absolute deed in fee simple of a messuage and lot of ground worth 800 dollars. At the same time, B executed and delivered to .# a . deed of defeasance, conditioned that if Jl should within three months pay to B the sum of 200 dollars, without any fraud or further delay, and without any deduction for taxes, the absolute deed should be void, and B should re -convey. At the time of executing the deeds, the scrive- ner considered them in the nature of a mortgage, and so explained them to the parties. Held, that although there was no covenant for the payment of the money lent and interest, the writings constitut- ed a mortgage, upon which the lender might recover the money due, by scire facias and sale; and that if the rents and profits received by the lender up to the time of trial, were equal to the money lent and interest, the borrower might re- cover in ejectment, without bringing the amount into court. ibiJ. 4. A mortgage given to indemnify the mortgagee against loss in consequence of his drawing notes in favour of the mortgagor, is as valid where the notes are to be drawn in future, as where they are already drawn ; and if the par- ties by indorsement on the mortgage agree, that instead of drawing notes for the whole amount, the mortgagee shall GENERAL INDEX. 593 indorse part, for which the mortgage shall be a security, the mortgagee will have a lien for the indorsements, not only against the mortgagor, but also against the material men, who subse- quently erect buildings on the ground. Ly!e v. IJucomb, v. 585 MORTGAGEE. A first mortgagee suffering the title deeds to remain in the hands of the mortgagor, who afterwards executes a second mort- gage, is postponed in England to the second mortgagee ; but it has been held otherwise in Pennsylvania. Lessee of ' Ma- slay v. Work, v. 161 MOTHER. 1. A mother has no legal authority over her son, nor any legal right to his ser- vices, though he lives with her. Com- monwealth v. Murray, iv. 487 2. A mother is a parent, within the act of Congress of 20th January 1813, for the enlistment of minors ; and if the minor has neither father, master nor guardian, her consent is necessary to his enlist- ment. Commonwealth v. Gallon, vi. 255 MUNICIPAL LAW. There is nothing in the law of nations to prevent a sovereign from punishing the violation of his penal municipal laws, by seizure on the high seas, out of his own territory, and not within the territory of any other sovereign. Cheriotv. Foussat, iii. 220 MURDER. See INDICTMENT, 9. NATURALIZATION. A, a British subject, emigrated to the Uni- ted States on the 10th of October 1807, at which time he reported himself and an infant son, agreeably to law, and declar- ed his intention to become a citizen of the United States. He resided in Pennsyl- vania fom the time of his arrival until his death on the 1st of October 1809. Sub- sequent to the present war between the United State* and Great Britain, and after the expiration of five years from his fa- ther's arrival, the son petitioned to be admitted to the rights of citizenship upon taking the oaths prescribed bylaw. Held, thai as the father himself if living could not be admitted to the rights of citizenship during the war with Great Britain, neither can his son be ; the pro- VOL. vr. viso in the act of Congress of the 14th of April 1802, which denies the privileges of citizenship to the subjects of a sove- reign with whom the United States is at war at the time of the application, ex- tending to the supplemental act of the 26th of March 1804, which in the case of an alien who has declared his intention, &c., and dies before he is actually natu- ralized, entitles his widow and children to be naturalized on taking the requisite oaths. Ex pane Overington, v. 371 NAVY. 1. Under the act of Congress authorizing the President of the United States to cause to be engaged certain able sea- men, ordinary seamen and boys, to serve in the navy, an infant who is arrived at years of discretion, and has neither fa- ther, master or guardian, may make a valid contract to serve according to the act Common-wealth v. Murray, iv. 487 2. Under the constitutional power of Con- gress to provide and maintain a navy, that body may by law authorize minors to enter into contracts for service in the navy. ibid. NEGRO AND MULATTO. 1. When the record of the entry of a negro or mulatto child in the office of the clerk of the peace, under the act of 29th March 1788, does not bear any date, the jury must say whether it was made on or be- fore the 1st of April 1789. Jack v. Eales, iii. 101 2. The act of 29th March 1788, notwith- standing it authorizes and requires the clerk of the peace to administer to the claimant an oath in verification of the return he makes of the age and descrip- tion of the child &c., does not prevent a justice of the peace from doing it by virtue of his general powers. ibid, 3. The registry of a negro child, under the fourth section of the act of 29th March 1788, may be explained by parol evi- dence, if it contains a mistake apparent upon the face of it. The Commonwealth v. Elaine, iv. 186 NEW TRIAL. See PRACTICE, 11. 1. The day on which the verdict is given, is computed as one of the four days which are allowed to move for a new trial. Lane v. Schreiner, i. 292 2. Square, whether in any civil case the court will grant new trial where there has 4F 594 GENERAL INDEX. been no motion within the four days. Ewingv. Tees, i.450 3. When the judge who tried the cause, is not dissatisfied with the verdict, it must be a very strong case that will induce the court to grant a new trial, upon the ground that the verdict is against evi- dence. Lessee of Cain v. Henderson, ii. 108 4. The plaintiff brought his ejectment upon an equitable title, which although per- haps not unfairly obtained from the de- fendant, was accompanied by some sus- picious circumstances, and at all events was very indiscreetly bartered away by the defendant. The jury, although in- structed that the contract was lawful, found a verdict for the defendant, which the court refused to set aside. Campbell v. Spencer, ii. 129 5. Though a verdict be against the opinion of the judge who tried the cause, yet if it turned upon the credit of witnesses, a new trial will not be granted, except in extraordinaav cases. Lessee of Fehl v. Good, ii. 495 6. The discovery of material evidence after the trial, which by using due diligence the party might have discovered before, is no ground for a new trial. Knox v. Work, ii. 582 7. After two verdicts in favour of the same party upon a simple matter of fact, it must be an extraordinary case in which the court will grant a new trial, though they have an undoubted right to do it ; but it is otherwise where matter of law has been disregarded by the jury. Lessee of&ble v. Arthurs, iii. 26 8. To justify a new trial, the mistake of the jury in law or fact must be plain, or the verdict must be decidedly against the evidence. It is not enough that the court did not look upon the evidence in the same light as the jury, or that they would not have found such a verdict themselves. Griffith v. Willing, iii. 317 9. Upon granting a new trial, the court, if they think it expedient, will lay the party who applies for it, under a condition to try the merits without regard to the form of the declaration. Welsh v. Dusar, iii. 329 10. There is no rule of law against granting anew trial after two concurring verdicts, nor will the court hesitate to do it, if the verdicts are against law. Commissioners of Berks v. Boss, iii. 520 11. The principle which has governed courts in refusing the plaintiff a new trial, where his demand has been a hard one, does not in any degree apply to actions against sureties for the default of a principal. Although a surety may be distressed by the demand, yet it is not in point of law a hard one. iii. 520 12. A new trial granted after two verdicts the same way in ejectment, where there was ground to apprehend that the jury had erred, and the statute of limitations would bar a new suit. Lessee of Mitchell v. Mitchell, iv. 180 13 When a point is reserved at the trial, the rule which requires ten days' pre- vious notice of a motion for a new trial, is dispensed with. Beinouldt v. Jlublai, iv. 378 14. New trial granted, the plaintiff having been surprised by evidence of a payment, sworn to at the trial by two witnesses, who, there was strong reason to believe, had been tampered with. Peterson v. Barry, iv. 481 15. If after a jury are sworn, arid before the verdict, one of the parties learns that a jui-or before he was impannelled, de- clared that he had made up his mind against him, he must make it known at once, if he intends to rely on it. He must not take the chance of a verdict in his favour, and upon its being the other way, move for a new trial upon the declara- tions of the juror. M'Corkle v. Binns, v. 340 16. The court may grant a second new trial, where merely facts are in controversy ; but it ought only to be in extraordinary cases. Clemson v. Davidson, v. 392 NON PROS. If bail in error is not perfected within ten days after exception, the defendant in error is entitled to a non pros. Taggart v. Cooper, iii. 34 NONSUIT. 1. It is not in the power of the court to or- der a nonsuit against the consent of the plaintiff. He may refuse to enter it, and insist upon taking a verdict. Girardv. Gettig, ii- 234 2. Arbitrators have no authority to award a nonsuit. If the plaintiff fails to attend, the proper award is that he has no cause of action. Miller v. Miller, v. 62 NOTICE. See AGENT, 5. DEPOSITIONS, 2.4. FRAUDS AND PERJURIES, 5. IMPROVEMENT, 11. PATENT, 2. WARRANT AND SURVEY, 4. 24.26. GENERAL INDEX. 595 1. The registry of a deed defectively proved or acknowledged, is not constructive no- tice to a subsequent purchaser, although the registry be made in the proper county. Lessee of Heister v. Partner, ii. 40 2. On the 28th April 1788, A. assigned to trustees for the benefit of creditors all his lands in the county of JV. &c.; and the same day acknowledged the deed before a judge of the common pleas of the county of M., who at that time had no authority to receive an acknowledgment of deeds for lands out of his proper county. On the 26th February 1790 the assignment was recorded in the county of JV On the 25th March 1789 B. ob- tained judgment against A. in the county of M. On the 15th March 1792 he exe- cuted an instrument recognising the as- signment of A., and agreeing to be bound by its terms. To February term 1796, B's executors issued a scire facias to revive the judgment, and signed judgment upon the return of one nihil. To August 1797 they issued a test- fi. fa. to the county of JV. and a test. vend. exp. to November 1797, upon which certain of the laiids assigned by A., were sold to C. the lessor of the plaintiff. Held, that although the judg- ment upon one " nihil " was erroneous, and actual notice of the assignment was brought home to B., which made the subsequent proceedings a fraud upon the creditors, yet as the assignment was de- fectively acknowledged, the record in N. was no notice to C. who being a bona Jide purchaser at sheriff's sale without notice, was entitled to recover. ii. 40 3. The purchaser under a patent from the Commonwealth, is bound to take notice of the title recited in the patent, and is affected with notice of what appears on that title, although it is contrary to the patent. Lessee of Willis v. Bucket; ii. 455 4. The recording act of 1775 does not make void an unrecorded deed, as against a subsequent purchaser without notice, under a title totally unconnected with that deed, but only as against purchasers under the same grantor. Lessee of Henry v. Morgan, ii. 497 5. A survey returned is legal notice. Lessee of Cox v. Cromwell, iii. 119 6. No verdict can be recovered against a justice of the peace for the penalty of 50/. imposed by the act of 14th February 1729, upon his joining in marriage a minor without consent of parent or guardian, unless previous notice is given to the jus- tice, according to the act of 21st March 1772. But although it is necessary that this notice should be given, and should precisely indicate the cause of action, it is not necessary that it should state the kind of writ, it is intended to sue out. Mitchell v. Cawgill, iv. 20 7. The assignment or bargain and sale of a warrant and survey, is within the record- ing act of 18th March 1775, and therefore if not recorded within six months, is void against a subsequent purchaser without notice ; but if the first bargainee or pur- chaser obtains a patent upon the warrant and survey, and then the bargainer sells and conveys them over again, the non- registry of the assignment is immaterial, because the patent is notice. Lessee of Carrey v. Caxtan, iv 140 8. A sold goods to B, payable at 60 days with interest thereafter, to be paid when taken away, not to exceed 90 days. B did not take the goods away in the time prescribed. Afterwards A, who was a commission merchant, agreed to take the goods on sale for B, and to credit him with the proceeds ; and 3 engaged to make up any loss that might accrue on the sales. Held that A was not bound to sell at all events, but only to use reasona- ble exertions; and after these had failed, and notice given to B to pay for the goods and take them away, A might maintain an action for the price; but the notice to B was indispensable. Hazard v. Van Am- ringe, iv. 289 9. Where a point is reserved, a motion may be made for a new trial, without previous notice. Reinouldt v. Aublai, iv. 378 10. If by the deed of conveyance, or other instrument transferring the title, it ap- pears that the time for paying a part of the purchase money has not yet arrived, a purchaser under that title at sheriff's sale or otherwise IG answerable for all that by the terms of the instrument was not due at the date of the purchase. But if by a distinct instrument between the original parties, the land is pledged for the whole purchase money due as well as not due, a purchaser is not bound by this unless duly recorded. Irvine \. Camp- bell, Yi. 118 NOTICE TO QUIT. 1. Notice to quit at the end of a certain year, is not w..ived by the landlord's per- mitting the tenant to remain in posses- sion an entire year after the expira- tion of the notice. Hoggs v. Black, i. 333 2. The notice to quit, required by the land- lord and tenant law, must be given three months before the end of the term. Brown v. Vanborn, i. 334 596 GENERAL INDEX. NUDOM PACTUM. See CONSIDERATION, 1, 2. NUISANCE. 1. To support an action on the case for damage occasioned by a common nui- sance, it is not necessary that the damage sustained should have been direct, it is enough if it was consequential Hughes v. Heiser, i. 463 2- The plaintiff declared that he had pre- pared rafts, with intent to navigate them down a river, which was a public high- way; and that he did navigate them, until he came to a dam erected by the defen- dant, by which he was prevented from passingdown the river with his rafts. This is a sufficient special damage to support an action. ibid. OATH. See JUSTICE OF THE PEACE, 7. NEGRO AND MULATTO, 2. WARRANT. OBLIGATION. 1. Though a bond, given for a larger sum than is due, for the purpose of defraud- ing creditors, is wholly void against cre- ditors, yet if creditors are permitted to take defence as to the quantum due, upon the plea of payment, the obligee is enti- tled to a verdict for the sum due, though the plea of payment in form goes to the whole. Numan v. Kapp, v. 73 2. The assignee of a bond takes it subject to all the equity which the obligor has against the obligee, unless the obligor promoted the assignment; and therefore in a suit by the assignee, it is competent to the obligor under the plea of payment to shew that the bond was given for lands to which the obligee had no title. But if the obligor at the time of purchase took a bond with surety for the conveyance of a good title, and a suit on that bond is pending, he cannot object the failure of consideration, unless he proves the in- solvency of both principal and surety in the suit he has himself commenced, or proves that he has sustained a damage, in addition to the loss of the title. Solo- tnn v. Kimmel, v. 232 OFFICE. One who has an authority to appoint to a public office, cannot appoint himself. The Commonwealth v. Douglass, i, 77 OFFICER. See DONATION LAND. OFFICIAL BOND. 1 . The party who first brings suit upon an official bond is entitled to priority of pay- ment, although he is prevented from obtaining judgment by an order to stay proceedings, upon the defendant's pay- ing the amount of the bond into court. All subsequent suitors to the same term are entitled pro rata,- but if instead of suing they apply to the Court to come in under the first suit, priority of applica- tion will entitle them to priority of pay- ment. M*Kean v. Shannon, i. 370 2. The bond of the prothonotary of the Common Pleas though not required by any law, is binding upon him and his sureties as a voluntary bond ; and being in the first place for the use of the Com- monwealth, a payment under it to an individual creditor of the prothonotary, is at the surety's peril. The Common- wealth must be first satisfied to the amount of the whole penalty. Common- v -wealth v. Wolbert, vi. 292 ORDER OF REMOVAL. 1. An order removing a married woman to the place where she was last legality set- tled before her marriage, is not defec- tive, because it omits to state that her husband had no known legal settlement. This court will not presume that he had any such settlement. Overseers of Read- ing v. Overseers of Cumree, v. 81 2. No intendment is to be made against an order of removal. ibid. 3. On appeals to the Sessions from orders of removal by two justices, that Court is to decide according to the merits,without regard to defects in the orders. ibid. ORPHANS' COURT. 1. The orphans' court may if necessary di- rect an issue, to settle a disputed fact. Yoke v. 'Barnet, i. 358 2. Ji obtains judgment against B his son in law, and then dies intestate seized of real estate, and leaving several children, among whom is the wife of -B. The real estate is divided into fewer parts than there are children, and they are allotted accordingly under the direction of the law, that a bond shall be given by those who take the land to the other children, JB's wife among the number, for their respective purparts. B is insolvent, and his debt to .4 unpaid. The orphans' court may order Jfs debt to be deducted from the amount of the bond for his wife's part. ibid* 3. If there are errors in an account report- GENERAL INDEX. 597 ed by auditors to the Orphans' Court, and confirmed by their decree, the Su- preme Court upon an appeal will rectify them as the Orphans' Court should have done, and not set aside the whole ac- count. The auditors are mere clerks. Guier v. Kelly, ii. 296 4. The appointment of appraisers by an Orphans' Court, under the act of 1764, to value the lands of an intestate, and a decree adjudging them at the valuation to one of the children, when at the same time the record shews no petition to the court by the widow or any of the chil- dren, no consent of parties to the ap- pointment, no appearance of the other children by guardian or otherwise, or notice to them, but on the contrary plain evidence that none did appear, are abso- lutely void ; and this may be taken ad- vantage of by one of the children in an ejectment against him to whom the pro- perty was adjudged, or his vendees. Messinger v. Kintner, iv. 97 5. Although after a length of time, pre- sumptions may be made in favour of what does not appear, in order to support the decree of an Orphans' Court at an early day, when its proceedings were proba- bly irregular, yet there can be no pre- sumption against what does appear, ibid. 6. An unauthorized decree of an Orphans' Court for the sale of lands, will not stand until reversed in a regular course of ap- peal, but may be questioned in a colla- teral suit by or against a person claiming under that decree. ibid. 7. A decree of the Orphans' Court order- ing lands to be sold for the payment of debts, void, because at the time of the decree, no administration account set- tled. Lessee of Larnmer v. Irviin, iv. 104 8. The decree of an Orphans' Court, or- dering the real estate of an intestate, at the valuation, to his oldest son, is not void, as against a minor child, merely be- cause the minor did not appear by guar- dian. No act of assembly requires such appearance, and, the proceedings not be- ing in the nature of an adversary suit at common law, notice to the minor, or to those having the care of his interests, is sufficient. Elliot v. Elliot, v. 1 9. A sale by order of Orphans' Court is not conclusive until reversed on appeal, but may be questioned in an ejectment. Lessee of Snyder v. Snyder, vi. 483 OVER. See PLEADING, 6. PRACTICE, 14. OYER AND TERM1NER. Precepts for Courts of Oyer and Terminer may issue under the private seals of the judges appointing such courts : No seals are required for the courts themselves. White v. Tlie'Common-wealth, vi. 179 PAROL AGREEMENT. See FRAUDS AND PERJURIES. PAROL EVIDENCE. See TRUST, 3. 1. The registry of a negro child, under the 4th section of the act of 29th March 1788, may be explained by parol evidence, if it contains a mistake apparent upon the face of it. Commonwealth v. Elaine, iv. 186 2. Entry on the 26th June 1807, of the name &c. of a negro child born on the 2d Ja- nuary 1808 ; registry not void, but parol evidence admitted to shew that the child was born on the 2d of January 1807, and therefore that the registry was made within six months after his birth, agree- ably to the act. ibid. 3. Parol evidence is inadmissible to shew that half an acre of laud included in a deed by administrators, was excepted out of the estate at the time of sale, les- see of Snyder v. Snyder , vi. 483 4. So it is inadmissible to shew that a she- riff had under execution the body and lands of a third person. The execution should be shewn by the records. ibid. PAROL SALE. See FRAUDS AND PERJURIES, 3. PARTITION. See FISHERY, 2. ORPHANS' COURT, 4. 8. 1. The statute of 8 and 9 W. 3. c. 81, con- cerning partitions, does not extend to this state. M'Kee v. Straub, ii. 1 2. One of three defendants in a writ of par- tition was tenant of the freehold, and died after action brought, and before trial ; the other two were his tenants for years or at will. Held that the writ was abated by his death ; and if not the sur- vivors were entitled to a verdict upon the plea of non tenent insimtiL ibid. PARTNERS. i . In order to reach the estate of a deceased partner, an action for a partnership debt 598 GENERAL INDEX. lies against his executor if the surviving partner be a certificated bankrupt before action brought. Lang v Keppelc, i. 123 2. One partner cannot maintain assumpsit against the other, for the proceeds of a partnership adventure, unless they have settled their accounts and struck a ba- lance. Ozeas v. Johnson, i. 191 3. If one of two joint partners releases to a debtor of the partnership, notwithstand- ing lie had no authority to release more than his own moiety of the debt, the ac- tion against the debtor is gone. Salmon v. Davis, iv. 375 PARTNERSHIP. The existence of a written agreement of partnership bet ween the defendants, does not preclude the plaintiff from proving a partnership by the actions or declarations of the parties. Widdifieldv. Widdtfield, ii.245 PATENT. See EVIDENCE, 23. NOTICE, 3. 1. A patent is prima facie evidence of title and of survey. Lessee oj James v. Betz, ii. 12 2. If the first purchaser or bargainee of a warrant and survey, obtains a patent, and then the bargainer sells them again, the second purchaser takes at his own peril, because the patent is notice, although the bargain and sale of the warrant and survey, have not been recorded. Lessee of Carrey v. Caxton, iv. 140 3. A warrant and survey are sufficient title to support an ejectment ; but the legal title is not complete till the issuing of the patent. iv. 145 4. A patent for land which has been sur- veyed under a warrant issued from the land office since the 22d of September 1794, is only prima facie evidence that the warrant issued regularly, and that the settlement required by that act has been made. Bixkr v. Baker, iv. 213 5. A patenbgranted upon a warrant fraudu- lently obtained under the act of 22d of September 1794, without the requisite set- tlement, cannot prevail against a settle- ment made by another person subse- quent to the fraudulent warrant, but be- fore the patent was obtained. ibid. 6. The principles of the law of England, must not be applied in their full extent to the case of a legal estate acquired in this Commonwealth by patent. The question here is generally, not who has got the patent, but who on principles of law and equity ought to have had it, when it issued. It is not true that he who obtains a patent shall avoid all titles by warrant and survey of which lie has no notice ; for a warrant and survey are in most re- spects considered as a legal estate, ex- cept as against the Commonwealth. They are subject to the same laws of descent, devise and conveyance as the legal estate. They are subject to dower and curtesy ; and an ejectment may be maintained on them. Lessee ofMaclay v. Work, v. 154 PAUPER. See ORDER OF REMOVAL. SETTLEMENT. PAYMENT. See PLEADING, 1, 2. 7. The entry of a check as cash, made in the private bankbook of the holder, is equi- valent to payment ; and if the check is a forgery, of which the holder was igno- rant, the bank must support the loss. Levy v.The Bank of the United States, i. 27 PENALTY. See PLEADING, 1. 1. Where a penalty has for its end to in- sure the performance of the principal obligation, it does not destroy it. Canal Company v. Sansom, i- 70 2. A penalty inflicted by an act of assembly for the doing a particular thing, implies a prohibition of that thing. Mitchell v. Smith, i. 110 PENITENTIARY. Prior to the act of 4th Jpril 1807, no per- son convicted of perjury in any of the counties in this state, except the county of Philadelphia, could be sentenced to im- prisonment in the gaol and penitentiary of the city and county of Philadelphia. Barlow v. The Common-wealth, iii. 1 PERJURY. 1. Persons convicted of perjury, are liable to fine and imprisonment at hard labour, but not to any particular kind of treat- ment as to diet or discipline. A sentence therefore which adjudges that the con- vict shall be confined, fed, clothed, and treated as the law directs, is erroneous. Kramer v. The Commonwealth, iii. 577 2. One who swears wilfully and deliberate- ly to a matter that he rashly believes, but which he has no probable cause for believing, and which is false, is guilty of perjury. Commonwealth v. Cornish, vi. 249 GENERAL INDEX. 599 PITTSBURG. See ALIEN, 1. PLANTATION. See DEVISE, 3. PLEADING. 1. Where a defendant pleads payment to an action of debt on a bond, and attempts to defeat the bond by giving evidence of fraud, or want of consideration, 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 judgment shall be entered for the penalty. Sparks v. Gar- rigues, i. 152 2. Under the plea of payment to a scire fa- cias to revive a judgment, the defendant may give in evidence that when he exe- cuted the bond and warranl, upon which the judgment was confessed, the plaintiff promised to cancel it upon an event which has occurred since the judgment. Hartzdl v. Reins, i. 289 3. 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 con- spiracy was without probable cause ; "falsely and maliciously," is enough. Griffith v. QS ie, i. 172 4. A count charging man and wife upon a joint assumption, in consideration of mo- ney had and received by them to the plaintiff's use, is bad. Grosser v. Eckart, i. 575 5. In slander the declaration is good, though it charge that the defendant spoke cer- tain words in substance as follows, &c. Kennedy v. Loviry, i. 393 6. The plaintiffs declared upon a bond dated the 20th day of May 1799. The de- fendants craved oyer, and then pleaded payment, upon which issue was joined. Held that upon this issue after oyer the plaintiff might give in evidence a bond dated the twentieth eght day of May 1799. Douglass v. Beam, ii. 76 7. The plea of " layman and unlettered, &c." is not necessary in Pennsylvania. Fraud either in the execution or the con- sideration of a bond may be given in evi- dence under the plea of payment. Baring v. Shippen, ii. 154 8. The plaintiff declared upon a promise on the 8th July 1805 to pay him eight hun- dred dollars per annum, and to find him a lodging room, bed, and fuel; and laid breaches of the contract, upon which the jury assessed general damages. Judg- ment was reversed, because it appeared by the record, that the action was brought before the eight hundred dollars were due. Gordon v. Kennedy, ii. 287 9. Where the plaintiff declares upon a con- tract consisting of several parts, and as- signs among other breaches, one which from his own shewing could not have taken place before the action was brought, the court cannot intend that the damages, if assessed generally, were given only for that matter in the count which was actionable, and therefore will reverse the judgment. ii. 287 10. The plaintiff declared, that he informed the defendant he was apprehensive that he should have to pay certain bonds in which he was joined wifh bis principal, and that he mould we the principal, whereupon in consideration that the plaintiff -would refrain from suing, the de- fendant promised to save him harmless, &c. After verdict, this is to be intended an agreement to forbear suit, after he had paid the money. Hamaker v. Eberley, ii. 506 11. In an action of slander, it is enough if it be substantially alleged that the words were spoken of the plaintiff; an express averment of that fact is not ne- cessary. Bravin v. Lamberton, ii. 34 12. The short entry of " not guilty with " leave to justify," by two or more de- fendants, may be considered a several justification by each defendant. Kerlin v. Heacoct, Hi. 215 13. Slander of husband and wife cannot be joined in the same count. Ebersoll v. Kri'g, iii. 555 14. In an action by an executor or admi- nistrator, the count may conclude " to " his damage," without saying "as exe- "cutor." Martin \. Smith, v. 16 15. Assumpsit will lie for an ascertained money legacy ; and the plaintiff may in the same count go for an unascertained residuary legacy. Clark v. Herring, \. 33 16. An acknowledgment of a subsisting debt, made within six years before ac- tion brought, to the executors of the cre- ditor, will not, where the issue is upon the statute of limitations, support a de- claration upon a promise to the testator himself. There should be a special count. Jones v. Moore, v . 573 17. Short pleas are admissible only by con- sent. If either party requests his adver- sary to draw up his" plea at large, and he 600 GENERAL INDEX. refuses, it is good cause of special de- murrer. Haak v. Breidenbach, vi. 12 18. Where several things are to be done by the plaintiff, precedent to the perform- ance of the defendant's part of the agree- ment, it is necessary for the plaintiff' to aver performance of all the things to be done by him. But if the performance of a part is not averred, and it appears by the defendant's plea, or by his notice under the plea, that the part in question was performed, the declaration is cured. Zerger v. Sailer, vi. 24 19. Statement in ejectment against one de- fendant, filed before the first term: after- wards the sheriff according to the com- mand of his writ summoned as defendant another person found in possession. Jltid, that the statement was right; and that if the name of the other defendant should be added, it might be done after verdict and judgment below, and this Court would consider it as done. Irish v. Scovii, vi. 55 20. A plea of alien enemy, must set forth that the plaintiff is himself an enemy, or adhering to the enemy, or what is equi- valent to this; but it need not aver that he is residing in the country of the ene- my. Russel v. Skipwith, vi.241 21. In an action of debt or on the case against an executor for a debt due from the testator, the plea of non estfactum or non asmmpsit is an admission of a will of which the defendant is executor : secus, where the action is for a demand on which the testator was not liable, as for a legacy. Hantz v. Sealy, vi. 405 22. Although the act of 21st March 1806, authorizes the defendant to alter his plea or defence at any time on or before the trial, yet this is to be only by permission of the Court. The discretion of the Court is however a legal discretion, subject to review on a writ of error, and if the de- fendant after having already pleaded offers to plead specially other pleas con- taining matter of law necessary for his defence, it is error to refuse it. Toung v. The Commonwealth, vi. 88 PLEDGE. See BAILMENT. POLICY. See INSURANCE, 2. 5. 7- 18. SETT-OEF, 2, 3. POOR. See SCHOOLMASTER. POSSESSION. See ASSIGNMENT, 6,7. EVIDENCE, 60. POUNDAGE. 1. 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, though it should exceed the real debt in the exe- cution. Petry v. Beauvarlet, i. 97 2. The Sheriff is not entitled to poundage upon a ca. sa. unless he receives and pays the money. Milne v. Davis, ii. 137 POWER. 1. If a power to sell is given to executors by name, for the purpose of paying debts, they take it ratione officii, and it survives. Lessee of Zebach v. Smith, iii. 69 2. Where there is a naked power to execu- tors to sell, and they renounce, adminis- trators cum testamento annexo have not, either at common law, or under any act of assembly prior to that of 12th of March 1800, authority to sell, although the ob- ject of sale be the payment of debts. Lessee of Moody v. Vandyke, iv. 31 3. Where several persons are authorized to do a private act, they must all join ; but where they are authorized to do an act of a public nature, which requires deli- beration, though all should be convened, a majority may decide. Baltimore Turn- pike Case, v. 481 4. Hence, where an act of assembly provid- ed, that if a certain turnpike road should be laid out upon any land, whereby the owner should suffer damage, he might apply to the County Court, who should appoint six disinterested persons to view and adjudge the amount of the damage so done, which, if approved by the Court, should be paid by the Turnpike Company, it was held, that if the whole number viewed, Jive might adjudge the damage. Baltimore Turnpike Case, v. 481 PRACTICE. See REFEREES. 1. A preference must be asked for the Commonwealth causes, upon the first day of the jury period. Common-wealth v. Pascalis, \- 37 2. The court will not permit a rule of refer- ence to be struck off, after there has been a meeting of the referees, and the parties GENERAL INDEX. 601 have proceeded before them in the con- troversy; notwithstanding since the meet- ing-, one of the parties is dead, and his representatives have been substituted. Jfuston v Dunwoody, i. 42 3. A cause in which the Commonwealth is interested, is not entitled to a preference, unless it is asked by the Commonwealth. Turnbull v. The Common-wealth, \. 45 4. A rule to shew cause of action is well served upon the plaintiffs attorney. Hutcheson v. Johnson, i 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 Hoar v. Mulvey, i. 145 6. If to debt on a bond the defendant pleads payment, and attempts to defeat the bond by giving evidence of fraud, want of con- sideration, &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 execu- tion, when the defendant may make any defence other than that which has been tried, and arising subsequent to the suit. Sparks v. Garrigues, i. 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 of Neffv. J\'eff, i. 350 8. If the judgment of a justice of the peace is affirmed in the Common Pleas, for want of exceptions in time agreeably to the rules of that court, the Supreme Court will not hear objections to it. Du- bos(/\. Tfie Guardians of t lie Poor, i. 415 9. Judgment may be arrested for an error on the face of the record, although it was not assigned at the time of filing the mo- tion, or of entering an appeal. Grosser v. Eckart, i . 575 10. The court will hear more than two counsel of aside, where there arc other parties than those on the record, wh have agreed to be bound by the court's decision. Frazer \ Tunis, i.255 11. The rule of court requiring ten days' notice in writing before the next term, of an intended motion for a new trial in a cause tried at nisi prius, applies to causes tried at nisi pr ins in the county of Phila delphia. Henry v. Kennedy, i. 458 12. A variance between the writ and count is immaterial by the practice in Pennsyl- vania Jennings v Cox, \. 588 13. When the words " and issue" are in- VOL. VI. serted upon the docket after the entry of an issuable plea, it is considered as a direction to the clerk to join the issue, and the omission of it is treated, after error brought, as a clerical mistake. But if the issue is not formally joined, and the memorandum is not made upou the docket, t!ie judgment is erroneous. Brovin v. Burnett, ii- 33 14. Where the docket entries set forth, that " defendant craves over of writ and bond, " and special impar lance" and then that " defendant pleads payment with leave He." the bond is considered by the practice in Pennsylvania, as having been placed on the record. Douglas v. Beam, ii. 76 15. Rule 55 of the Supreme Court of 15th April 1781 does not give a priority to a certiorai i to a justice, unless it is claim- ed before the arrangement of the argu- ment list ; and indeed it seems that the rule is obsolete. Smith v. Diehl, ii. 145 16. A general appearance entered on the docket by an attorney, opposite to the names of two defendants, is a good ap- pearance for both, although one has not been summoned. Scott v. Israel, ii. 145 17. The plea of " layman and unlettered &c." is not necessary in Pennsylvania- Fraud either in the execution or the con- sideration of a bond, may be given in evi- dence under the plea of payment. Baring v. Shippen, ii. 154 18. The Supreme Court does not hear evi- dence upon a certiorari to the Quarter Sessions to remove proceedings in a road cause. Case of tlie Schuylktll Falls Road, ii. 250 19. A scire facias ad ait diendum errors s is not in use in Pennsylvania. The plaintiff in error proceeds by a rule on the defendant to plead. Commonwea.th v. Emery, ii 257 20. A certiorari by the defendant to remove the proceedings in an inquisition under a turnpike act does not require a special allocatur. Commonwealth \. Willow Grove Turnpike, it. 257 21. The plaintiff may proceed against an executor by capias to compel an appear- ance, but if he elects to proceed by sum- mons, then in order to entitle himself to judgment by nil dicit, !u- must pu: sue the act of 20th '.March 1724-5, as if the suit were against a freeholder. Fitzsimons v. Salomon, ii. 4J6 22. A judgment after one "nihil" upon a scire facias, is irregular ; and may be set aside, or reversed on error. Lessee of Heister v. Partner, ii. 40 23. If bail in error is not perfected within 4G 602 GENERAL INDEX. ten days after it is excepted to the de fendant in error is entitled to a non pros. Taggart v. Cooper, iii. 34 24. The short entry of " not guilty with "leave to justify," by two or more de- fendants, is a several justification. Kirlin v. Seacock, iii. 215 25. A rule to try or non pros, is in force from the time it is taken, until the cause is concluded, notwithstanding the cause may have been once tried during the existence of the rule, or continued at the instance of the defendant. Tliurston v. Murray, iii. 413 26. Under the general power of the Com- mon Pleas to r-gulate its practice, it may require an affidavit of defence. Vanatta v. Anderson, iii. 417 27. A defendant cannot upon the eve of trial withdraw a negative plea, to gain the conclusion to the jury by means of an affirmative plea that is left. Waggoner v. Line, iii. 589 28. The rule of excluding all but rebutting testimony after thr party has once closed his evidence, is not to he so closely ad- hered to, is to do injustice. Richardson v. The Lessee of Stewart, iv. 198 29. An affidavit that Jl was a material wit- ness, that he had left the country and was expected to return before the next term, and that the party did not know of his going until three or four days before he went, and did not advert to the cir- . cumstance of his being a material wit- ness, is not a sufficient ground for a con- tinuance Davidson v. Brovm, iv. 243 30. Where there is a motion for a new trial by the defendant, and also a point re- served, in the same cause, the defend- ant's counsel must begin and conclude the motion, and the plaintiffs the point reserved. Lacombe v. Wain, iv. 300 n. 31. Proceedings on bail bond suit staid at the third term of the original action, upon paying costs, entering special bail, and giving the plaintiff' a judgment in the original. Priestman v. A'eyver, iv. 344 32. The court will not interpose summarily to stay an execution, unless tt,e defend*- ant's case is made out entirely to their satisfaction. If it is doubtful, he must re- sort to his actioii. Pearce v. Affleck, iv.344 33. Where a point is reserved at the trial, the rule which requires ten days' previ ous notice of a motion for a new trial is dispensed with. Reinouldt v. Aublai, iv.378 34. Where there has been an award of arbitrators finding that the plaintiff has no cause of action, an affidavit of defence is not requisite. Gregg v. Meeker, iv. 428 35. A general return of " levied on goods " as per inventory," does not, by the practice in Pennsylvania, discharge the defendant, and make the sheiifF liable for the whole debt. He is liable only for the value of the goods upon which a levy was made, or might have been made ; and on his paying the net sales, an alias goes for the residue, without application to the Court. Little v. Delancey, v. 266 36. Motion for rule to shew cause why a foreign attachment should not be dis- solved, is in time at December term, if the attachment was returnable at July ,- that term consisting of but one day. Kearney v. M'Cullough, v. 389 37. The rule for affidavits of defence, does not apply to a case in which the defend- ant is an infant. Read v. Bush, v. 455 PRJECIPE. The prtecipe for the original writ is a part of the record, and should regularly be sent up with the process and pleadings upon a writ of error. Fitzsimonsv. Salo- mon, ii. 436 PRESUMPTION. Although presumptions may be made in favour of what does not appear, they can never be made against what does appear. Messinger v. Kintner, iv. 97 PRINCIPAL AND SURETY. See NEW TRIAL, 11. 1. Where the principal assigns a fund to pay a creditor, whom the surety after- wards pays, the surety is entitled to the benefit of the fund, and if converted into money, may recover it in an action for money had and received. JMiller v. Ord, ii. 382 2. If the obligee undertakes to discharge the principal, or in any considerable de- gree to lessen his responsibility, without consulting the surety, the surety is dis- charged. But the mere acceptance of a common appearance in a suit by the ob- ligee against the principal, in conse- quence of wVich the latter executed an assignment to secure part of the debt, has no effect upon the obligation of the surety, although it furnished the princi- pal an opportunity to leave the state. Commissioners of Berks v. Ross, iii. 520 3. If a surety makes an agreement with one of two persons for whom he is bound, that if he the principal will pay one half GENERAL INDEX. 603 the debt, he the surety will pay the other half for the other principal, and the one half is paid by the principal according to the agreement, the surety cannot main- tain an action against both principals to recover the part that he has paid. JJun- can v. Keiffer, iii. 126 4. An omission on the part of the account- ing 1 officers of the Commonwealth, for a year and upwards, to compel the protho- notary of the Common Pleas to settle his account of fees, does not discharge the sureties in the official bond ot the protho notary ; although the officers are autho- rized to compel an account at the end of each year, and to enforce payment by execution. Qiuere, what would have been the law if the officers had been requested to proceed by the sureties. The Common- wealth v. Wolbert, vi. 292 PRIORITY. 1. A debt due to the United States by a de- ceased revenue officer, is entitled to pri- ority of payment from his administrators under the law of this Commonwealth, whether the debt arose before or after the act of Congress of 3d March 1797. The Commonwealth v. Lewis, vi. 266 2. Congress have a constitutional right to claim a preference out of the estate of a public debtor, for debts due to the United States; and by the act of 3d Mar. 1797 they have constitutionally claimed it as against living debtors for all debts contracted thereafter, and as against deceased debt- ors whether contracted before or after that law. ibid. PRISONERS. Persons sentenced to imprisonment, and to pay a fine not more than 51. , with costs, are entitled to a discharge from impri- sonment, b ith as to fine and costs, after having remained in confinement for the fine thirty days beyond the term adjudg- ed for their imprisonment. But neither fine nor costs are remitted thereby- If the defendant has property, it is liable. The Commonwealth v. Long, v. 489 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'Ctiliough, i. 77 PRIZE. See JURISDICTION*, 3, 4, 5. PRIZE COURT. See JURISDICTION, 3, 4, 5. PROBATE. 1. An ex parte probate of a will, taken by the register at the instance of one of the parties to an issue then pending to try the validity of another will by the same testator, is not valid. Hantz v. Hull, ii. 511 2. The probate of a will, so long as it re- mains unrepealed, is conclusive as to personal property, but only primafacie as to reality. Coates v. Hughes, hi. 498 PROCESS. 1. Process must go in the name of " the " Commonwealth of Pennsylvania " but it is immaterial in what part of the pre- cept the Commonwealth is introduced, so th.it the command is given in its name. White v. Tlie Commonwealth, vi. 179 2. In a precept to the sheriffto summon the grand and petit jury, it is sufficient to command him to cuuse to come before the judges 24 good and lawful men, with- out commanding him in what manner they are to be drawn or selected. ibid. PROMISE. See IMPLIED PROMISE. PROMISSORY NOTE. If the indorser of a promissory note, proves that it was put into circulation by the drawer fraudulently, he may call upon the holder to shew what considera- tion he gave for it, and how it came into his hands. And the indorser is enti- tled to give such proof, in order to re- quire such explanation from the holder. Holmes v. Karspcr, v. 469 PROSECUTION. An act of assembly directs that " from and " after the passing of the act no person " shall be subject to prosecution by in- " dictment," for a particular oftcnce. Held that it puts an end to a prosecution commenced and carried to conviction be- fore the passing of the act, but in which no judgment ha-1 been pronounced. The Commonwealth v. Duane, i. 601 PROSECUTOR. See COSTS, 13. 604 GENERAL INDEX. PROTEST. See EVIDENCE, 1. 38. The protest of a master of a vessel is evi- dence in an action of replevin by the owner of a cargo, to recover it from the vendee of the captor. Chtriot v. Fous- sat, iii. 227 PROTHONOTARY. 1. A prothonotary cannot maintain an ac- tion for his fees, until the cause in which they are due is terminated ; but if he cannot recover them from the defendant then, it seems that he may from the plaintiff. Lyon \. M'Manus, iv. 167 2. A prothonotary's certificate of the ac- knowledgment in open court of a deed to himself by the sheriff, and his entries of the acknowledgment upon record, are evidence in his own cause. Lessee of Ricketts v. Henderson, vi. 133 3. The bonds of the protbonotaries though not required by law, are binding on them and their sureties. Commonwealth v. Wot- bert, vi. 292 PURCHASER. See SHERIFF, 8, 9. 1. A judgment creditor is not a purchaser or mortgagee within the meaning of the recording act of 1775; but a purchaser at sheriff's sale under that judgment is. Lessee of Heist er v. Fortner, ii. 40 2. A purchaser at sheriff's sale to whom a deed has been made, will hold the land, notwithstanding the judgment be set aside for irregularity, or reversed on error. ii. 40 3. Where a levy is set aside, and a vend, exp. is issued without a fresh levy, a sale under it is void, and the purchaser de- rives no title. The ninth section of the act of 1705, protects a purchaser in the event of a reversal of the judgment under which the sale was made, but not where the sale was made under void process. Murd v. The Lessee of Dansdale, ii. 80 4. A purchaser is not bound to accept a deed of bargain and sale, in which a blank is left for the consideration money; notwithstanding the grantors, after ac- knowledgment of the deed by them.have authorized their a^ent to fill the blank. Moore v. The Lessee ofJBickham, iv. 1 5. It behoves the purchaser at a sale under a decree of the Orphans' Court, to see that the proceedings are so far regular as to authorize the sale. Lessee of Larri- mer v. Iriain, iv. 104 6. The assignment of a warrant and sur- vey is within the recording acts, and therefore if not recorded within six months, is void against a subsequent bona fide purchaser without notice. Lessee of Carrey v. Caxton, iv. 140 7. A purchaser at sheriff's sale, cannot give parol evidence of a deed by which the title was conveyed to the defendant in the execution, unless he lays the usual ground for secondary evidence. He stands as to proof of title, on the same footing as other purchasers. Little v. The Lessee of Delancey, _ v. 266 PURCHASE MONEY. 1. If the quantity of land falls short, where the conveyance is for a gross sum, and by courses and distances which truly de- scribe the premises, there can be no deduction from the purchase money, un- less there has been fraud. Quaere how the law is where a tract is sold at so much per acre, and there is a deficiency. Smith v. Evans, vi. 102 2. The seller of land, although he conveys it, retains an equitable lien against the purchaser, and all claiming under him, with notice that the purchase money is unpaid. Hence, if by the deed of conveyance, or other instrument transferring the title, it appears that the time for paying a part of the purchase money, has not yet ar- rived, a purchaser under that title at sheriff's sale or otherwise is answerable for all that by the terms of the instrument was not due at the date of the purchase. But if by a distinct instrument between the original parties, the land is pledged for the whole purchase money due as well as not due, a purchaser is not bound by this unless duly recorded. Irvine v. Campbell, vi. 118 QUARTER SESSIONS. See JURISDICTION, 8. ROAD, 1. 3. 1. The Quarter Sessions have power to or- der a re-review of a road, although the act of Assembly does not expressly au- thorize it. Case of Schuylkill Falls Road, ii. 250 2. The Quarter Sessions is not an inferior jurisdiction, whose authority must ap- pear by these proceedings to have been strictly pursued. The law will not intend that they have committed an error^ when acting on a subject clearly within their jurisdiction ; but will presume in cases which admit of presumption, ornnia esse- rite acta. ii. 255 3. The courts of Quarter Sessions of this GENERAL INDEX. 605 state, have jurisdiction of all criminal offences which were not capital at the passing of the act of 22d of May 1722. Their jurisdiction remains unchanged, although since that act, several offences which were then felonies of death have ceased to be so They accordingly have jurisdiction of perjury. Kramer v. The Commonwealth, iii. 577 4. Those rules of construction which arc applied to the proceedings of persons having a special anil limited jurisdiction, do not apply to the proceedings of the Quarter Sessions. Case of Spear's road, iv. 174 5. The time during which the reputed fa- ther of a bastard child shall be ordered to maintain it, is entirely within the dis<-re- tion of the Sessions, who are not bound by any practice however uniform, that may have been adopted by themselves or other courts upon the subject. Addis v. The Commonwealth, iv. 541 6. On appeals to the Sessions from orders of removal by two justices, that court is to decide according to the merits, with- out regard to defects in the orders. Reading v. Cumree, v. 81 7. No order for opening a road having been taken out below, proceedings sent down to the Quarter Sessions, to give them an opportunity of completing their order by fixing the breadth of the road. Shamokin Road, vi. 36 QUO WARRANTO. 1. An act of assembly vests the appoint- ment of inspectors of the prison in the mayor and two aldermen of the city, and two justices of the county of Philadelphia, and directs it to be exercised on a cer- tain day. An appointment made in a clan- destine manner, after a refusal by the mayor to make known to certain alder- men and justices the hour and place at which such appointment would be made, is not such an exercise of the mayor's discretion as the law will warrant, and the court will give leave to file an infor- mation in the nature of a quo ivarranto against the inspectors so appointed. The Commonwealth v. Douglass, i. 77 2. The Supreme Court has no authority to try an issue in fact in any part of the state, except the county of Philadelphia ,- and therefore it cannot in the western district entertain a motion for leave to file an information in nature of a quo iuar- ranto, because an issue in fact may arise out of it. Commonwealth v. Smith, iv. 117 RECEIPT. See SURVEYOR, 3. RECITAL. 1. A deed containing a recital of another deed, is evidence of the recited deed, against the grantor, and all persons claiming by title derived from him sub- sequently; but not against one who claims by title prior to the deed which contains the recitals, nor against a stranger. Pen- rose v. Griffith, iv. 231 2. In case of an ancient deed, of the loss of which some evidence has been jfiven, where the possession has r.ot been con- trary to the deed, and where the sub- scribing witn? sses have been long dead, a recital in another deed is evidence of the lost deed, even against strangers, and persons claiming paramount Gar- viood v. Dennis, iv. 314 3. A recital in a deed, that certain land had become the property of D, is evidence against the grantor, (though not conclu- sive) that D had a fee simple in the land; and if the deed further recites, that D's estate had been divested by an entry of the grantor for breach of condition, one who claims under D (but not under the deed) is net estopped from denying this recital, by having availed himself of the first as evidence of D's estate. Stoever v. Lessee of Whitman, vi. 416 RECOGNISANCE. The short minutes of a recognisance taken by a magistrate, and returned by him into court, where the recognisance was forfeited, may be given in evidence to maintain an action on the recognisance, provided they substantially shew the amount and condition, and that the party was bound to the Commonwealth. The Commonwealth v. Emery, ii. 431 RECORD. An indorsement on the original writ by the deputy sheriff', of the day on which he made the arrest, is no part of the record. Dolan v. Briggs, iv. 496 RECORDING ACT. See NOTICE, 1, 2.4. 1. The assignment or bargain and sale of a warrant and survey, is within the record- ing act of 18th of March 1775. Lessee of Correy v Caxton, iv. 140 2. An office copy of a deed proved by one 606 GENERAL INDEX. subscribing witness prior to the act of 1775 is not evidence. To entitle a deed to registry under the ;*ct of 1715, it must be proved by two witnesses who were present at its execution. Vickroy v. MKnight, iv. 204 3. Before the recording act of 1775, no man was obliged to record his deeds. The purchaser was to look to the title at his peril ; and notwithstanding he ob- tained a patent from the Commonwealth, before notice that the warrant and sur- vey, or a part of it, had been conveyed to a third person, yet this did not avoid the third person's title. Lessee ofMaclay v. Work, v. 154 REFEREES. See PRACTICE, 2. COSTS, 2. 1. A report of referees may without con- sent of parties be sent back o the same referees, for the purpose of correcting informality. Lessee of Snyder v. Hoffman, i. 43 2. Exceptions to a report of referees must point out some plain mistake in fact or in law, otherwise the court will not inves- tigate the merits of the report. Lower Dublin School v. Paul, i. 59 3. Part of a report of referees may be con- firmed and the residue set aside. But the court cannot strike out a part. Wog~ lam v. Burnes, i. 109 4. To entitle a party to demand of referees an allowance of time to produce testimo- ny, 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 reason- able time. Latimer v. Ridge, \. 458 5. If the oath directed by the act of 21st March 1806, to be administered to re- ferees, is dispensed with by the parties, there is no necessity that their award should be under seal. Graham v. Hamilton, i.461 3. If referees themselves certify to the court, that they have committed a mis- take in their award, the court will in- quire into it, although no exception upon this ground has been filed within the four days after report into office ; but al- though exceptions stating other mistakes of the referees, as well as that admitted, have been filed after the four days, and before the next term, yet the whole mat- ter is not opened by the certificate of the ' referees, but the party is confined to the exception stating the mistake which they have certified. Davis v. Canal Company, iv. 296 7. A report of referees may be in part con- firmed, and as to the residue held under advisement to give the plaintiff' an oppor- tunity of producing further proof. Dennis v. Barber, iv. 484 8. A rule of reference directing the report to be made to the next court, or next term, makes it incumbent on the re- ferees to make report to the next term after the submission; but if the report is not then made, it may be made to any succeed in g term, and to an adjourned court as part of the term. Shaw. Pearce, iv. 485 9. If a report is set aside for mere informa- lity, the court may send it back to the referees without consent of parties. But if it is set aside in consequence of a ma- terial error in the manner of conducting the business, consent of both parties is essential to induce the court to send it back. Quaere whether the court would not recommit it, if the referees request- ed it. Shaw v. Pearce, iv. 485 10. An agreement by rule of court to sub- mit all matters in variance to A, B, and C, before whom the parties were to ap- pear without counsel, to "waive all objec- tions arising upon legal grounds, and to let the referees determine all matters justly, honestly, and equitably, the report of a majority of them to be final and conclusive, does not preclude either party from fil- ing exceptions to the report. Mussina v. Henzog, v. 387 11. No exception to a report of referees, which does not appear wholly upon the face of the report, can be taken after the four days have expired. Shoemaker v. Smith, ii. 239 12. The discovery of material evidence after a report made, which by using due diligence the party might have discover- ed before, is no ground for setting aside a report. Aubel v. Ealer, ii. 582 note 13- Referees under the act of 1705 cannot award costs of suit in the Common Pleas, upon a sum, which by the laws giving jurisdiction to justices of the peace, will not carry costs, unless there is an agree- ment in the rule that they shall have power over the costs, or the plaintiff' had made an affidavit before the suit, that he believed the debt was beyond the sum within a magistrate's jurisdiction. Guier v. M'Fatlon, ii- 387 14. Upon a report of referees finding a sum due by the plaintiff to the defendant, the latter cannot enter judgment to recover the sum, and issue execution. His reme- dy is by scire facias, or perhaps by at- tachment. Blackburn v. Markle, vi. 174 GENERAL INDEX. 607 REGISTRY. See RECORDING ACT, 1, 2, 3. 1. The registry of a negro child under the 4th section of the act of 29lh of March 1788, may be explained by purol evidence, if it contains t> mistake apparent upon the face of it. Commonwealth v. BUuiie, iv. 18f> 2. Entry on the 26th of June 1807 of the name, &c. of a negro child, bom on the 2d of January 1808 Registry not void, but parol evidence admitted to shew that the child was born on the 2d January 1807. ibid. REGULATION OF LOTS. The regulation of a lot by regulators under the act of 9th March *1771, from which no appeal is entered to the next Common Pleas, is conclusive as to the foundations and party walls of buildings erected con- formably thereto, but not so as to the lines of the lot on which there are no buildings. Godshall v. Mariam, i- 352 RELATION. 1. A survey under a renewed warrant is- sued from the land office of Maryland in 1762, it the land is the same called lor by a warrant before 4th July 1760, relates to tlie time of the 01 iginal warrant. Lessee of Ross v. Cutthall, i. 399 2. An assignment to a trustee for the bene- fit of all the creditors of the assignor, not made known to the trustee until four days after its execution, when he ac- cepts, takes effect from its date. The acceptance of the trustee is presumed until his refusal appeal s . Wilt v. Franklin, i. 502 RELEASE. See ASSIGNMENT, 4, 5. A release of a partnership debt by one of two joint partners, bars an action against the debtor, although the releasor had no authority to discharge more than his moiety. Salmon v. Davis, iv. 375 RELINOJLJISHMENT. See WARRANT AND SURVEY, 22. RENEWED WARRANT. See WARRANT AND SURVEY, 6. 3, RENT. See INTEREST, 5, 6, 7. , There must be an union of the land and the rent La the same person, to work an extinguishment of the rent. A vested right to enter and hold the land until payment of the rent, is not sufficient. Phillips v. Bonsall, ii. 138 . The proprietor of a ground rent in fee, who obtains a judgment in covenant for the arrears, and sells the land, is entitled to be paid the whole of the rent in arrear out of the proceeds, in preference to older i uderments. JBantleon v. Smith, ii. 147 3. Kent carries interest from the time it is due, unless from the conduct of the4and- lord it may be inferred that he means not to insist on it, or unless he acts in an oppressive manner by demanding more than is due, where the tenant is willing to do justice, or there are other equitable circumstances making the charge of in- terest improper. Obermyer v. Ntcliols, vi. 159 REPLEVIN. Replevin lies against the sheriff's vendee, to recover the possession of chattels wrongfully taken in execution and sold. Shearich v. Huber, ri. 2 REPORT OF REFEREES. See REFEREES. RESCUE. See INSURANCE, 13. RESERVED POINT. See PR ACT ICE, 30. 33. RESPONDENTIA. See INSURANCE, 3. RETAINER. Since the act of 1794, an administrator has no right to retain his whole debt against creditors in equal degree, when there is a deficiency of assets. Ex pane Meason, T. 16f REVENUE OFFICER. See PRIORITY. RIVERS. The common law doctrine, that fresh water rivers in which the tide does not ebb and flow, belong to the owners of the banks, has never been applied to the Susquehan- na, and other large rivers in Pennsylvania. Such rivers are navigable, although there is no flow and reflow of the tide, and GENERAL INDEX. they belong to the commonwealth. Car- ton v. Blazer and others, ii.475 ROADS. See POWER, 4. QUARTER SESSIONS, 7. 1. It is not necessary that an appointment of viewers to lay out a road, should state that they are " freeholders and inhabi- tants near where complaint is made " for want of a road," although the act of assembly requires that they should be so. The Supreme Court will presume that the Quarter Sessions have made the ap- pointment according to law. Case of SchuylkiU Fails Road, ii . 250 2. A reference to the improvements through winch a projected road is to pass, need not be made in the report of viewers, &c. They may be shewn in the plot or draft. ii 250 3. The Sessions have power to order a re- review of a road, although the act of as- sembly does not expressly authorize it. ii. 250 A, If it appears by the report of viewers, that a county commissioner attended the view, it is sufficient to shew that notice was given to the commissioners, agreea- bly to the standing order of the Sessions. ii. 25u 5. A report of a road by viewers, &c. with- out a plot or draught in addition to the courses and distances, is bad. Road from Warrior Run, iii. 3 6. It is not requisite that a petition for a road should state whether it is & public on a private road that is wanted ; this is to be decided by the viewers, and stated in their report. Case of Spear's Road, iv. 174 7- If an order of Sessions directs reviewers to review the ground and places between certain points where a road is required, and if they are of opinion that a road is necessary between those points, to pro ceed to lay it out, and the reviewers make return that " in pursuance of the " said order, they have viewed, laid out "and returned the following road, &c."it will be presumed that they viewed the ground and places between the points referred to in the order. ibid. 8. It is not necessary for a report of viewers to state, thai in laying out a road, " they " had respect to the best ground for a " road, and the shortest distance, in such " a manner as to do the least injury to " private property;" if they have not had such respect, it may be shewn in the Quarter Sessions. ibid. 9. If a petitioner for a road, acts as a re- viewer, it is fatal to the proceedings. Radnor road, v. 612 10. the Commonwealth has a constitutional right to authorize a turnpike company to lay out a road through the private ground of the citizen without making compensa- tion for the soil. M'C'lenachan v. Curiuen, vi. 509 ROBBERY. To constitute robbery, there must be a felo- nious taking oi property from the person ot another by force either actual or con- structive ; but if force be used, it is not essential that the prosecutor should be either aware or afraid of the taking. Hence, where the prisoner took the pro- secutor by the cravat, with an intention to steal his watch, and also pressed his breast against the prosecutor's, and held him against a wall, during which time he took the prosecutor's watch from his fob, without his knowledge, and without his suspecting any intention of felony, this was held to be robbery. Common-wealth v. Snelling, iv. 379 SALE. See SHERIFF, 1. 1. A sale of lands after the return day of the vendttioni exponas, is not void, if the lands were advertised for sale on a day before, "and the sale was continued by adjournment. Burdv. The Lessee of Dans- dale, ii. 80 2. Where a levy is set aside, and a vendi- tioni exponas is issued without a fresh levy, a sale under it is void. ii. 80 3. An inquisition is not necessary to the sale of an estate for life, or any other es- tate of uncertain duration. ii 80 4. Jl sold goods to Ji, payable at sixty days with interest thereafter to be paid when taken away, not to exceed ninety days. B did not take the goods away in the time prescribed. Afterwards Jl, who was a commission merchant, agreed to take the goods on sale for B, and to credit him with the proceeds ; and B engaged to make up any loss that might accrue on the sales. Held, that Ji was not bound to sell at all events, but only to use reasonable exertions ; and after these had failed, and notice given to B to pay for the goods and take them away, A might maintain an action for the price ; but the notice to B was indispensable. Hazard v. Van Jlmringe, iv. 289 5. Ji received from JB a sum of money, and GENERAL INDEX. 609 ave him a receipt stating 1 it to be for "an advance on a shipment of cotton "shipped on board a certain vessel and " consigned to B and C, and also on a " shipment now making of flour and cot- " ton on board a certain other ship, to be " consigned also to B and C." Ji then bought a quantity of flour from D on a credit, of 60 and 90 days, contracted with the husband of the last mentioned ship for the freight of it, and it was delivered on the wharf by the porters of D, and put on board the ship. D then applied to A for his notes agreeably to the terms of sale, who refused to give them, hav- ing stopt payment. Held, that the deli- very of the flour was complete, so as to divest the property out of Z), notwith- standing the refusal to deliver the notes, and therefore that he could not regain the possession by replevin. Clemson v. Davidson, iv. 405 6. The plaintiff sold to the defendant " three " tracts of land containing nine hundred " ninety-one acres and a quarter and allow- " ance, at twelve shillings and sixpence per " acre." The plaintiff afterwards obtained patents in his own name, and executed a conveyance of the tracts to the defendant, describing them by courses and distances according to the patents, and stating them as " containing in the whole nine hun- " dred ninety-one acres and a quarter, and " allowance &c, be the same more or less." The defendant having previously paid a part of the purchase money, gave his bonds to the plaintiff on the day after the conveyance, for the sum remaining due, with a mortgage on the three tracts, stating them to contain " in the whole nine " hundred ninety-one acres and a quarter, " and alloivance," and describing them by courses and distances. Upon a survey made twelve years afterwards the tracts were ascertained to fall short 88 acres 48 perches, field, that the defendant was not entitled to any deduction from his bonds, on account of the deficiency. >ur the stay is out Lessee of Dunlop v. Speer, iii. 169 5. A judgment loses its lien absolutely, unless revived by scire facias within five years from its date. Bank of North Ame- rica v. Fitzsimons, iii- 342 6. Where one plaintiff dies after judgment, the survivor may have execution without scire facias, suggesting the death of his co-plaintiff on the record, or reciting it in the writ. Secus if the survivor is a feme, who afterwards takes baron. Ber- njhill v. H'ells, V. 56 SEA LETTER. See INSURANCE, 35. SEAWORTHINESS. See CARRIER, 2, 3, 4, 5. After two verdicts the same way upon the question of seaworthiness, the court will 4H 610 GENERAL INDEX. not grant a new trial. Sell v. Reed and Beelor, iv. 127 SEIZURE. There is nothing in the law of nations to prevent any sovereign from punishing the violation of his municipal laws by seizure on the high seas, out of his own territory, and not within the territory of any other sovereign. Cher lot v Fottssat, iii. 220 SESSIONS. See QUARTER SESSIONS. SET-OFF. See ORPHANS' COURT, 2. 1. Jl is indebu d to B and C partners in trade, who issue a foreign attachment against his effects in the hands of D. Jlfter the death of B and C the executors of C who was surviving partner, obtain judgment against the defendant and the garnishee. B and C were the indorsees of a note which wus discounted by D t and which fell due after their death, and was protested for nonpayment. The debt to D by B and C cannot be set off' against the debt due by D as garnishee of Jl to C'* executors. A's debt upon the death of B and C became vested in their creditors generally, whose rights cannot be changed by any subsequent proceedings between the executors and garnishee. Cramond v. The Sank of the United States, i. 64 2. The assignee of a policy of insurance, takes it subject to all defalcations to which it was liable before the assign- ment. Roiisset v . The Insurance Company ofJYorth America, i. 429 3. In a suit by the assignee of a policy of insurance, the insurers may setolfadebt due by the assignor at the time of effect- ing the policy though it be an open policy and the claim for a partial loss. i. 429 4. If the defendant has an equitable de- mand against the plaintiff, as for instance a bond given by the plaintiff to a third person, and by him informally assigned to the defendant, the court will permit him either to set it off against the plain- tiff's demand, or give it in evidence un- der the plea of payment. Murray v. Wil- liamson, iii. 135 5. It is not essential to a set-off that the defendant should be able to sue for it in his own name. ibid. 6. There is nothing in the defalcation act of Pennsylvania to exclude a set-off either by or against an executor or administra tor. On the contrary that act has uniform- ly been construed to admit it. iii. 135 7. A judgment against Jl was assigned to B to secure money leiit to A, and which ^covenanted by articles of agreement to repay on a certain day. The court refus- ed to stay execution upon this judgment to give a time to obtain a verdict against B for damages in consequence of tortious acts by him in breach of his covenants in the same articles ; though it seems they would, had A's claim been for money paid, or any other matter susceptible of liquidation. Lessee of Dunlop v. Speer, iii. 169 8. Damages for breach of contract may be set off under the defalcation act of Penn- sylvania, ibid. SETTLEMENT. See IMPROVEMENT. 1. A slave has a settlement in the township where his master resides, which is bound in the first instance to support him, though it may have a remedy over against his master or his estate. So in the case of a manumitted slave, who has not acquired a settlement in another town- ship since his manumission. Overseers of Forks v. Overseers of Cataviessa, iii. 22 2. An indented servant, imported from Eu- rope into this stale, gains a legal settle- ment where he first serves sixty days, either with the master to whom lie was indented, or with his assignee; and it is of no consequence, that the assignment is voidable by the servant, because not duly made in the presence of a justice, pro- vided the servant performs his service under it. Reading v. Cumree, v. 81 3. If the assignment of an indented servant be absolutely void, yet a service perform- ed to the assignee in one township, with the consent of the master in another, is a service with the master in the township of the assignee, and obtains a settlement there. ibid. SERVANTS. The term "servants," whose wages are by the act of l?94to be paid out of an intes- tate's estate, in the same rank with phy- sic, and funeral expenses, embraces those only who in common parlance are called servants, persoijs who make part of a man's family, and whose business it is to assist in the economy of the family, or in matters connected with it. But it does not comprehend -workmen, employed at iron works and the like. Ex pane Meason, v. 167 GENERAL INDEX. SHERIFF. See TRESPASS, 1, 2. EVIDENCE, 40- Poi'NDAGE, 1, 2. INTEREST, 9. 1. The sheriff cannot make a lumping sale of distinct parcels of property which ht has taken in execution. He should sel them distinctly. Rcnvlty \. Br his private character, will not enure to the use of his successor so as to enable him to sue. Hayes v. Grier, iv. 80 TRESPASS. See JUSTIFICATION. WAY GOING CROP. 1. If a deputy sheriff enters the house of an administrator to look for goods of the in- testate, and afterwards proceeds to levy upon the goods of the administrator from whom nothing is due, he is a trespasser, ab initio. Hazard v. Israel, i. 240 2. If the sheriff' levies nji.fa against Jl, upon property which previous to the de- livery of the execution he had assigned with the consent of most of his creditors to trustees, for the benefit of such as should sign a release in four months, he is a trespasser, although at the time of the levy no release had been executed. Lippincott v. Barker, ii. 174 3. When a court has jurisdiction of the ac- tion, their officers are not responsible for errors in process. Htcker v. Jarret, iii. 404 4. A tenant entitled to the way going crop, who enters and warns a third person against cutting it, may maintain trespass quare clausum fregit against the wrong doer, notwithstanding he had, previously to the trespass, given up to his landlord possession of the farm, in a part of which the crop was growing. Stitlt; v. Dickey, v. 285 5 But a tenant who has underlet a part of his farm to another, and has then sur- rendered possession as before, cannot recover damages for cutting the crop put in by his under-tenant. v. 2d5 TRUST. 1. A trust estate in Pennsylvania descends in case of intestacy to the heir at com- mon law. Lessee of Jenks v. Backliouse, i. 91 2. When an estate is conveyed in trust to serve certain uses, a resulting trust arises by implication of law to the grantor and his heirs, for all such parts of the equitable estate, as are not disposed of by the deed. Lessee of Huston v. Hamilton, ii. 387 3. The act of frauds and perjuries of the state of Pennsylvania, does not prevent a declaration of trust from being made by parol. Hence in an ejectment by the de- visees of A against B, it is competent to give parol evidence of the declarations of A, that the land she had purchased in her own name, was bought for the use of B, with money in which her husband had given her only a life estate by his will, and had devised it to B after her death. lessee of German v. Gabbald, iii. 3P2 TRUSTEE. See EXECUTOR, 3, 4. 10. SHERIFF, 9. 1. Jl 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 re- demption. A retains the title deeds, and B receives the rents and profits. After- wards A lends his notes to B and finally takes them up, shortly after which B is declared a bankrupt. H's assignees can- not recover the premises from ?, until they reimburse him the amount so paid for B, Lessee of Frazer v Hallo-well, i. 126 2 A trustee is entitled to interest upon ad- vances for the use of cestui que trust to supply the deficiency of the fund. He is also entitled to an allowance for depre- ciated 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 was not consulted. Lessee of Dilivorlh \. Sinderling, i. 488 3. A trustee, who is lessor of the plaintiff in ejectment, is a good witness for the defendant to shew that the real trust is different from that declared in the con- veyance. Dntmv. Lessee of Simpson, v\A7& 616 GENERAL INDEX. TURNPIKE. See ROADS, 10. UNITED STATES. See PRIORITY. USE. See TRUST. VACATING WARRANT. It seems that the Proprietaries had no right to vacate a warrant, on which purchase anoney had been paid, against the con- sent of the warrantee. But if it could be done at the request or with the consent of the warrantee; and long acquiescence by him in the vacating order, is evidence of consent. Lessee of Mitchellv. Mitchell, iv. 180 VAGRANT. A justice of the peace of the city or county of Philadelphia, may commit any vagrant to gaol, to be kept at hard labour for a term not exceeding one month, he being thereof legally convicted before the jus- tice, on his own view, or by the confes- sion of the offender, or by the oath or affirmation of one or more, credible wit- nesses. The Commonwealth v. Hallo-way, v. 516 VALUED POLICY. See INSURANCE, 17. VENIRE DE NOVO. 1. On the reversal of a judgment of the common pleas upon a bill of exceptions to evidencx, the Supreme Court may award a -venire de novo. Sterrett \. Bull, i.238 2. Entire damages assessed upon several counts in slander, one of which is bad. Judgment reversed and venire de novo awarded. Shaffer v. Kintzer, i. 537 3. Jl venire facias de novo cannot be awarded by this Court, if the cause below was tried by arbitrators, and not by a jury. Nor can it be awarded, where, to enable the plaintiff to recover at all, he must state a cause of action different from that which has been already submitted to the jury. Ebersoll v. Krug, v. 51 4. The oiject of a venire de novo is to sub- mit the same cause of action to another jury, an error which took place upon a former trial being corrected. As where there has been irregularity in choosing or returning the jury, error in rejecting competent, or in admitting incompetent evidence, error in the Court's opinion upon the law arising from the evidence, entire damages assessed upon several counts, some of which are bad, and the like. v. 51 VERDICT. See EVIDENCE, 17. If a juror is struck from the special jury list, and then sworn as a talesman with the knowledge of the party who struck him off, he cannot on that account object to the verdict. Jordan v. Meredith, i. 27 2. A verdict cannot be impeached for the misconduct of the jury, upon the testi- mony of the jurors themselves. Lessee of Cluggage v. Sv)an t iv. 150 VIEW. See COSTS, 7. WAGER. See INSURANCE, 18. WARRANT. See CONSTABLE. 1. A warrant of arrest, issued upon common rumor and report of the party's guilt, though it recite that there was danger of his escaping before witnesses could be summoned to enable the judge to issue it upon oath, is illegal, and the constable to whom it is directed is not bound to execute it. Conner v. The Commonwealth, iii. 38 2. A warrant directed by a justice of the peace to constable, if it is executed by the proper constable of the district, is well directed. Paul v Vankirk, vi. 123 3. Prisoner discharged, because the war- rant was issued by the county commis- sioners to collect a fine, and mentioned no proceeding by virtue of which it was issued ; nor was any shewn at the hear- ing. But if the proceeding of a court martial imposing it, had been shewn, the Court would have left the prisoner to his action, and not have decided summarily upon the merits. The Commonviealth v. Alexander, vi. 176 4. An arrest may be made for felony with- out warrant, notwithstanding sec. 7. art. 9. of the constitution; and a private per- son may make it at his peril : but qu&re if he can arrest for misdemeanor, e. *. for receiving stolen goods. Wakely v. Hart, vi. 316 GENERAL INDEX. 617 WARRANT AND SURVEY. 1. It is not essential to the validity of a sur- vey of a body of lands, that the lines of each tract should be marked on the ground. It is sufficient if the surveyor has marked lines enough to identify the particular tracts. IVoeda v. Ingersoll, i 146 2. The proviso in the 9th section of the act of 3d April 1792, which excuses a settle- ment in case of prevention by tht- enemy, also excuses a survey. Lessee of Hazard v. Lovsry, i. 166 3. If a survey has been duly made u der legal authority, and the land surveyed remains open to purchasors, a warr nt coming afterwards to the hands of the deputy, may be applied by him to the, survey already made, without running and marking the lines anew. Lessee of M'Rliea v. Plummer, i. 227 4. A survey on what is called a shifted loca- tion, is good against a person who had notice of it before the commencement of his title, even though the survey was not returned. Lessee of Kyle v. White, i. 246 5. It is no objection to a survey made before the year 1767, on lands purchased from the Indiana in 1754, that 562 acres were surveyed upon two warrants for 100 acres each. i. 246 6. A survey under a renewed warrant is- sued from the land office of Maryland in 1762, if the land surveyed is the same called for by a warrant before 4th July 1760, relates to the time of the original warrant, and is protected by the agree- ment between the proprietaries. Lessee of Ross v. Cutshall, i. 399 7. Before a survey has been returned, it is competent to the deputy surveyor to ex- tend the lines so as to cover any land not appropriated, to the amount of the quan- tity in the application. But if after the survey has been executed, and before the extension of the lines, a survey has been made upon a younger, or even a shifted application, and returned into of- fice, or made known to the owner of the first survey, it is not in the power of the latter to extend his lines so as to include land within the last survey. Lessee of Bid- die v. Dougall, ii. 37 8. A warrant issued from the land office on the 5th of April 1774 for 300 acres in the name of A, upon which the purchase money was paid. It was surveyed in 1776 under the direction of B, and the deputy surveyor marked upon the survey, that it was in dispute between B and C. In 1778 B was killed by the Indians and his VOL. VI. house and papers burned. The land was afterwards sold under execution as the property of B, and up to the trial of the ejectment by the purchaser in 1807, no person had ever claimed A's warrant in opposition to B Held that these circum- stances were sufficient evidence, that B was the owner of #'* warrant. Lessee of Evans v. J\\irgrjng, ii. 55 9. Where a survey made and returned into office for Disclaimed by C under his own application, C has no right to m ike any addition to the survey returned, without an order from the land office ; and no pri- vate intention or action of his, can hinder the proprietaries from selling the adjoin- ing land to any person who may apply for it. ibid. 10. A and B purchase a warrant and sur- vey as tenants in common. B resides in England, and A is the acting partner in Pennsylvania, who carries on all the cor- respondence with an agent, in relation to thi land surveyed. A, ten years after the return of survey into office, by indorse- ment thereon in the surveyor general's office, declares tf ~that the survey not hav~ " ing Seen made on the land called for by " the warrant, on -which it is returned" (which was the fact) " he thereby relin- " (juuslies the right to the same to C" B did not dissent from the relinquishment for 13 years, when he and A conveyed the tract to a purchaser for a valuable consi- deration. Held that the indorsement upon the survey by A was an abandonment of the survey by both partners, and that their vendee could not recover any part of it. Lessee of M' Knight v. Yingkuid, ii. 61 11. On the 28th July 1773, A took a warrant from the land office descriptive of certain land, which was surveyed on other land the 15th June 1774. The survey was re- turned into office before the 26th of Au- gust 1783; for on that day an indorsement was made upon the return by a clerk in the land office, that " A believed the tur- " vey virong laid, and requested the surveyor " to adjust it, -which he had agreed to." On the 17th September 1787, A applied to the board of property for an order to survey his warrant on the land it called for, which was granted, and the survey was accordingly made on the 26th of Novem- ber 1787, and returned the 27th February 1788. On the 26th October 1772, B took a warrant descriptive of certain land, and on the 19th June 1785 surveyed it upon land it did not call for, namely, the land called for in jfs warrant of 1773, the pre- mises in the ejectment. The survey was 41 618 GENERAL INDEX. returned into office probably in 1785 or 1786, but at the latest on the 9th yune 1787, and was patented the 4th January 1788, Held that Jl by his neglect to follow up his objection to the survey made in 1774, had lost his claim to the land de- scribed in his warrant of 1773, and that B was entitled to recover. Lessee of Miles v. Palter, ii. 65 12. A survey made by an assistant deputy surveyoi for himself, is of no validity un- til it is recognized by his principal. Qutere, whether a survey made by a de- puty surveyor for himself, has any validity until it is accepted by the surveyor gene ral. Lessee ofJM Kenzie v. Crow, ii. 105 13. An actual settler cannot support an ejectment without a survey. Cosby v. Lessee of Broivn, ii. 124 14. The act of 19th February 1801, which authorizes the receiver general to give certificates of credit to certain persons whose lands fell within the state of New Tork, to be used in taking out new war- pant*., operates so far as respects those warrants, as a repeal of all former laws requiring a stttlem/cnt, previous to the issuing of a warrant. Commonwealth v. Cochran, n. 270 15. A warrant and survey with payment of purchase money, are to be considered in Pennsylvania in the same light as the le- gal estate in Englarui, and are not to be distinguished, as to conveying, intailing, and barring intails, from estates strictly legal. Lessee of Willis v. Bucher, ii. 455 16. When a claim setup by a third person to a warrant and survey, remains undis- puted for the space of between thirty and forty years, and there is nothing to shew that the warrantee has transferred his title to anyone else, it is strong evi- dence to prove that the right of the war- rantee vested in the claimant by some conveyance which is lost. Lessee of Gal- loway v. Ogle, ii. 468 17. A survey of 288 acres in the old pur- chase, made in 1788 upon a warrant for 100 acres issued in 1751, was returned into office before any other person had acquired a right, and was not objected to by the surveyor general. This is a suffi cient title to recover in ejectment. Lessee ofSteinmetz v.Toung, ii. 520 18 Ii has been the practice in the land of- fice since the revolution to accept surveys made since the year 1767 upon old war- rants, notwithstanding they contained more than ten per cent, surplus. ibid. 19. Ii a pa> ty k .ows of a survey having been made for another, and returned to the land office, without any improper con- duct in the person obtaining it, it is against equity to permit him to take advantage of those irregularities in the survey over which the owner of it had no control. Lessee of Keble v. Arthurs, iii. 26 20. A return of survey is strong presump- tive evidence that a regular survey has been made on the ground ; and it lies upon the party objecting to it, to shew that it has not, by such circumstances as are inconsistent with a survey. Lessee of Win v. Stevenson, iii. 35 21. What is a reasonable description in a warrant. ibid. 22. The owner of a prior warrant and sur- vey upon which the purchase money is paid, is not barred either in law or equity from recovering in ejectment, notwith- standing there has been a derision against him by the board of property in conse- quence of his neg'ecting to attend the hearing upon a caveat, and he has lain by fifteen years fter that, during which the party in whose favour the caveat was de- cided, has paid his purchase money, ob- tained a patent, and made improvements on the land. Although the owner of such warrant and survey, may relinquish the land, yet when the purchase money is paid, these circumstances are not suffi- cient evidence of relinquishment. The omitting to take actual possession of the land is no evidence of it, nor can the de- lay to bring an ejectment be a bar, if it be fora length of time less than that pre- scribed bv the act of limitations. Lessee of Cox v Cromwell, iii. 1 14 23. A recital in a warrant of acceptance is good evidence against the proprietary, but not against third persons claiming adversely to the survey, under a title which commenced before ti-e return of survey. Lessee of Bonnet v. Devebauqh, iii. 175 24. In the case of warrants descriptive of the land intended to be surveyed, either precisely, or with such reasonable cer- tainty, as is sufficient to designate it, the title attaches from the date of the war- rant, if du. diligence is used in obtaining a survey. If the warrant gives but a loose description, allowing a scope of several miles, the title does not attach until sur- vey. And in the case of shifted warrants or locations, where the survey is made on land different from that described, it has no ef?Lcl, except against those who have notice of it, until return into office, an acceptance by the surveyor general. Les- see ofLauman v. Thomas, \\. 51 GENERAL INDEX. 619 25. A obtained a descriptive warrant, a sur- vey and patent for a tract of land, to which B at the date of the warrant, had a subsisting 1 right by improvement; but B had previously left the land and had not returned, although he was still in time to return. Cafterwards went into possession, and improved, but not by title derived from B. Held that although Jfs warrant, survey and patent, would not prevail against B's improvement right, nor against any one deriving title from B, yet they are good against C a stranger, and A is entitled to recover the land. Lessee of Magens v. Smith, iv. 73 26. The assignment or bargain and sale of a warrant and survey, is within the re- cording act of 18th March 1775, and therefore if not recorded within six months, is void against a subsequent purchaser without notice; but if the first bargainee or purchaser obtains a patent upon the warrant and survey, and then the burgainor sells and conveys them over again, the nonregistry of the assign- ment is immaterial, because the patent is notice, and the second pu chaser should have recurred to the land office before he bought the warrant and sur- vey. Lessee of Carrey v. Caxton, iv. 140 27- A wan-ant and survey are a sufficient title to maintain an ejectment ; but they do not constitute a legal title. iv. 145 28. It is not necessary that a survey should recite the authority under which it is made ; there are many titles founded on such surveys. The authority may be shewn aliunde. Sprout v. Lessee of Plum stcd, iv. 189 29. To give validity to a warrant issued from the land office since the 22d of September, 1794, there must be a personal resident settlement on the land at the- time; and if the officers of the land office are deceived by fraudulent evidence to this point, or err in the construction of law and afterwards c jnfirm the warrant and survey by a patent, it is still compe- tent to a third person claiming adversely, to shew the fraud or the error, and to defeat the patent. Bixlerv. Baker, iv. 213 30. Where there is no fraud, a party is bound by the lines of his survey returned, and the acceptance of a patent thereon Morris v. Thomas, v. 77 31. Where two or more take out a warrant, pay the purchase money, and obtain a survey, they hold as tenants in common, unless the contrary is set forth; und either of them may require that the patent shall be made in that way. Caines v. Lessee of Grant, v. l 32. Although the terms published at the opening of the land office on the 3d of April I, 69, made all locations void, upon which a survey was not made in six months, and the purchase money paid in twelve, yet these terms were so uniform- ly relaxed, that in the case of a survey returned before the land had been duly acquired by another, and payment of the purchase money and interest at any time, the courts of law would have prevented the proprietaries from insisting on the forfeiture. Lessee of BicLlle v. Doitgal, v. 142 33. Hence where a loose location of the 3d of April 1769 was surveyed on the 15th of May 1772, and returned into office on the 3d of July 1772, but no purchase mo- ney was paid until the 27th of February 1800, when a warrant of acceptance issu- ed, and a patent was granted, it was held not to be competent to a person claiming under a descriptive location of the same date, surveyed on the 4th of July 1774, returned on the 15th and pa- tented on the 17th of August 1774, to al- lege a forfeiture by delay of survey, or non payment of purchase money. ibid. 34. The non payment of purchase money, being a matter between the purchaser and owner of the soil, no third person can take advantage of it, or has any thing to do with it. ibid. 35. The omission to pay the purchase mo- ney, after a survey returned, is not evi- dence of an abandonment. ibid. 36. A warrant and survey are in most res- pects considered as a leg.il estate, except as against the Commonwealth. They are subject to the same laws of descent, de- vise and conveyance, as the legal estate. They are subject to dower and curtesy ; and an ejectment may be maintained on them. Lessee ofMaclay v. Work, v. 154 37. An actual settler cannot maintain an ejectment for his improvement, without an official survey, or a private one, if by due exertion lie was unable to obtain the former. Stock-man v. Blair, v. 211 38. A survey may be made by a deputy surveyor without possession of the war- rant at the time, if he has once had it, and entered it in his book. ibid, 39 Where a leading warrant plainly des- scribes land in one district, it is in n > res- pert a f and upon the act of Jd of April 1792, that the same and many adjoining warrants were previously delivered to the surveyor of another district into which some of them might run, who handed them to the surveyor of the first district; and that the whole, after he hud entered 620 GENERAL INDEX. twelve or thirteen in his books, were by him returned to the surveyor from whom he got them, who entered them all in his own book. v. 211 40. Upon a descriptive location, the deputy surveyor surveyed more than the usual excess, and without the knowledge of the owner, cut off a part of the survey containing the best lands, and answering most accurately to the desctiption, for which another person at the deputy's in- stance entered a location, and got a re- turn for himself. The owner of the first location not being informed of the cir- cumstance, entered upon the disputed part, and improved it. Held, that the re- turn of survey did not prejudice the old- est proprietor, nor benefit the youngest ; and that the oldest had title. Caufman v. Congregation of Cedar Spring, vi. 59 41. A warrant, survey, and patent for lands not purchased of the Indians, and which the proprietaries did not know at the time of granting, to be within the Indian limits, pass no right. Thomson v. Johns- ton, vi. 68 42. The field notes of a deputy surveyor, shewing a survey for .4 at a particular time; a warrant in the name of , calling for A as adjoining, an old draught of a survey found in the office of the deputy surveyor, on which Jfs name was indor- sed in the handwriting of the deputy sur- veyor, all these papers admissible in evidence to shew a survey for A. Boyles V. Johnston's Executors, vi. 125 WARRANTY. See SPECIAL WARRANTY. The words " grant, bargain, sell," do not, under the act of 1715, amount to a gene- ral warranty, but merely to a covenant, that the grantor has not done any act, nor created any incumbrance, whereby the estate granted by him may be de- feated. Lessee of Grutz v. L-wait, ii. 95 WAY GOING CROP. In an action of trespass for cutting and carrying away his grain, a lessee for years may give evidence, that by the custom of the country, he is entitled to the -way going crop, though it is not spe- cially stated in his declaration, and though he held under a written lease, which gave no such right. That custom extends throughout this state, and enters into every contract to which it applies. Stnltz v. Dickey, v . 2d5 WIDOW. See DONATION LAND. WILL. Sec, EXECUTOR, 4. 1. A will of personal property must be exe- cuted according to the law of the testa- tor's domicil at the time of his death. Desesbats v Serquier, \. 336 2. A will in writing of lands may be revok- ed by the parol republication of a former Will in writing, and in pnler to ascertain whether the republished will operates as a revocation, the contents may be proved by parol, if the will itself cannot be found and the usual ground is laid for introducing the secondary evidence. Havardv. Davis, ii. 406 3. A subsequent marriage and birth of pos- thumous or other issue, do not amount by the law of Pennsylvania to a total re- vocation of a will, even where the sub- sequent issue is the testator's only child. They amount to a revocation pro tanto, namely, so far as regards the widow and child, but not as to the appointment of executors, nor as to a power to sell for the payment of debts. Coates v. Hughes, iii. 498 4. A will of personal property must be proved in the regisU r's office before the common law courts of this state can give it effect. Toner v. Taggart, v 490 5. A last will in Pennsylvania does not sever a jointenancy, notwithstanding the act of 1705, which makes a will good and available in law for the granting, con- veying and assuring of lands, &c. Duncan v. Forrer, vi. 193 6. A toili of land which has accompanied the possession thirty years, is evidence, without proof of its execution. Shatter v. Brand, vi. 435 WITNESS. See COSTS, 1. EVIDENCE, 16. 20. 22. 24. 1. A party ma} call as many witnesses as he thinks necessary to make out his case; the Court will not interfere, unless he is guilty of oppression. Debenneville v. De- denneville, i. 46 2. It lies on the party who objects to the competency of a witness on the ground of interest, to shew an interest or sup- posed interest at the time of the oath being administered. It is not enough that the witness at a former period conceived himself to be interested. Letsee of Henry v. Morgan, ii. 497 GENERAL INDEX. 621 3. A leading 1 question must be objected to at the time it is put to the witness. If no exception is then taken by the opposite party, the answer of the witness to the leading question, cannot bt opposed upon that ground, when his deposition is read upon the trial. Sheeler v. Spear, iii. loO 4. If the subscribing witness to a bond is out of the jurisdirtion of the Court, and upon diligent inquiry no person can be found within the jurisdiction, who caii prove his handwriting, the handwriting of the obligor may be proved, dark v. Sanderson, iii. '92 5. A plaintiff who after the commencement of the suit, has made a voluntary assign- ment of all his property to creditors, and has also executed a release to the as- signees of all his interest in the money which may be recovered in the action, is a competent witness in the cause, pro- vided all the costs are paid before he is sworn. Steels v. Phanix Ins. Co. iii. 306 6. The widow is a good witness to establish a donatio causa mortis by her husband Wells \. Tucker, iii. 366 7' A person who has paid taxes to his agent, to be paid over to the treasurer of the county, is not a competent witness to prove the payment, in a suit by the treasurer against the agent He has a direct interest in the suit. Hayes v, Grier, iv. 80 8. No objection can be made to a witness on the ground of interest, unless he be directly interested, that is, unless he may be immediately benefited or injured by the event of the suit, or unless the ver- dict to be obtained by his evidence, or given against it, will be evidence for or against him in another action, in which he may afterwards be a party. iv. 83 9. After a witness has been examined in chief, and turned over to the opposite counsel for cross-examination, it is still in the discretion of the Court, to permit the party who produced the witness to examine him even as to new matter, in any stage of the trial. Curren v. Cannery, v. 488 10. One of the defendants, an administra- tor, having released all his interest in the intestate's estate, and having offered to pay into Court all the costs of the suit in case he should be .-ulmitted, was offer, ed as a witness. Qu