Volume 1 — Addison's Pennsylvania Reports

SUSANNA M’KEE, a widow, was tried for the murder of her bastard child. The infant was found dead in the Monongahela river, on the 15th August last, with a stone to it, its head bruised, and marks of violence. This woman was suspected and examined : at first she denied, but afterwards confessed, having had a child.— She said she had buried her child, it having been dead born. Afterwards owned she had taken it up, and thrown it in the river.

TWO bonds, each in the penalty of 478l. and for the payment of 239l. were given by Charles Simms to Alexander Ross on 24th August, 1775; one of them payable in two years, the other in three, from the date of the bonds.

THIS case had been referred by rule of court to five persons, on whose report, or that of a majority, judgment was to be entered. The report now offered shewed, that four of the referees, and both parties, met at the time and place agreed on, and that the parties then agreed to substitute another in the room of the absent referee named in the rule. This agreement was then put in writing at the foot of the copy of the rule, signed by the parties, and now produced.

THIS was an action of tresspass quare clausam fregit, against a husband and wife, jointly, for takingone hundred buihels of com, &c. objected to any testimony against the husband; 1, because the writ being against the two, as husband and wife, is to be considered in the usual way of joining the husband with the wife, for forms sake, and for his interest; and 2, because a wife committing a trespass in the presence of her husband, is not answerable, acting by compulsion.

AN indictment for a forcible entry and detainer of lands of Ralph Cherry was found and tried in the Quarter Sessions. Held: that no forcible entry could be made on wood land; and Hughes was acquitted. Such a possession as Cherry had would not have entitled him to a recovery in ejectment ; and it is not such as a forcible entry could be committed on. 2. and 3.

<p>AN indictment for larceny, in stealing a silver teatongs, &c. was found, at this Sessions against John Lovel and Rachel his wife, alias Rachel Whitken. They pleaded separately. The man was first tried and acquitted. Then on the trial of the woman.</p> <p>urged, 1. There is no crime.</p> <p>2. If any, it amounts not to larceny, but a misdemeanor only, in receiving stolen goods.</p> <p>3. Being joined with her husband, his presence amounts to coercion, and she is excused.</p> <p>1. There is evidence of a crime, and</p> <p>2. Of the crime laid in the indictment. She is not, in fact, his wife, but only lived with him.</p>

<p>Dal. 333.</p> <p>2 Bla. Rep. 694.</p> <p>2 Salk. 590.</p> <p>3 T. Rep. 383.</p> <p>Ca. temp.Ld. Hardw. 53. Dig. of adjudged cases, 594.</p> <p>Dall. 308.</p>

<p>ROSS moved for leave to enter judgment on a warrant of attorney to confess judgment, for the penalty of a bond exceeding 10l. the real debt being under 10l. His object was to have it ascertained before hand, who should pay the costs.</p> <p>The court would not interfere, and he did not enter the judgment.</p>

BRACRENRIDGE asked the direction of the court to exhibit a judgment for a penalty, in evidence to a jury of enquiry, whether land will extend or not.

THIS was an action of indebitatus assumsit for money had and received. In the year 1785, Patrick Murphy bought from James Farnesly an out-lot, improved and occupied by Farnesly, of twenty-one acres, near the town of Pittsburgh; for which he agreed to pay 40s. per acre, if at a certain time thereafter, which was then fixed by the parties, the proprietaries should not have granted a patent or deed for it, to any other person.

THE declaration stated, that the defendant’s father was indebted to the plaintiff 17l. 7s. 3d. that the defendant, his executor, referred the claim to arbitrators, who made an award in favour of the plaintiff; and that the defendant as executor as aforesaid promised to pay. The pleas were non assumsit and payment, and non assumsit infra sex annos.

ROBERT M'BIRNIE was indicted, together with another man, at a court of Oyer and Terminer for that he “ intending to maim Adam Cotter, of malice aforethought, and by lying in wait, unlawfully and feloniously did make an assault on the said A. Cotter, and him did beat, wound, and ill treat, and of malice aforethought, and by lying in wait, did gouge and bruise his right eye, and bite off his nose, with intent to disfigure him, against the statute, &c.” Galbraith, for the…

<p>THIS was an action of assumsit founded on an order in the words following :—“ March 21st, 1788—Sir, I make bold to trouble you to let John M’Kee have to the amount of one hundred pounds in certificates on my account, if he stands in need of it, and this shall be your receipt from your friend, Eleazer Mires.—To Col. John Irwin.” E. Myers died. John Irwin, to whom the order is directed, is one of the executors and, having since refused to satisfy the order, this action was brought.</p> <p>Proof having been made, that Myers had desired one Robert M’Kee to write an order to this effect, and sign his name to it ; Woods, for the plaintiff, was proceeding to read the order ; when Brackenridge, for the defendant, objected to its being read, unless Robert M’Kee who wrote it, were called, to prove that he wrote it, agreeably to the directions of Myers, and signed Myers' name to it, by his authority; and that the order now produced was the order written at the time the witness spoke of, and that the name of Myers was in Robert M'Kee's hand writing, and by the authority of Myers. Robert M’Kee, being uninterested, and the best witness, must be here. Mr. Brackenridge strongly hinted, that it was a forgery, and that Robert M'Kee would not dare to swear to it.*</p> <p>There is no subscribing witness ; and proof of hand writing is enough.</p>

ROBERT M'KEE being sued by David Semple, before a justice of the peace, for a balance of about thirty shillings, set up a defence, that the debt was contingent, and that the contingency had not happened — The justice gave judgment against him, and Semple dying, M'Kee went to the justice and produced a receipt in full, which he said was given him by Semple, and had been discovered by him since the judgment.

<p>IN assumsit, there were three counts. The two first were on a special undertaking to pay Porter 33l. 9s. with interest from 15th November, 1787, due by one Campbell, by bond dated 27th March, 1788. The consideration of this promise was the sale of a house by Campbell to Brown, on which Porter had a mortgage for the sum demanded. The third count was for money had and received. The bond produced had no date, but it had been pasted to the mortgage, which was dated 27th March, 1788, and recited a bond of the same date, and for the same sum.</p> <p>It was proved, that, about a month after the date of the mortgage, Brown sent a message to Porter, that Campbell had left this country, that he had purchased Campbell’s house mortgaged to Porter, and, by contract, was to pay the debt due to Porter ; that he would come to Porter, but was afraid of the smallpox ; but if Porter would come to him, he would give his own bond for the money, and security if required ; and that all that he wanted was a little time to make the payment. This message was delivered to Porter, who said he was satisfied. Porter did not record his mortgage.</p> <p>The plaintiff cannot recover on the first or second count, as the declaration states a bond dated 27th November, 1788, and the bond shewn has no date. And if he undertake to recite a deed, he must do it exactly ; or if he state a special agreement, he must prove it as laid. He cannot recover on the third count, for he has proved no money received by the defendant for his use.</p> <p>The bond is but matter of inducement; not the gift of the action. It has been pasted to a mortgage, which recites it as of even date, and is dated 27th March 1788. On the third count the plaintiff will recover ; for the house being then bound to the amount of the mortgage, it will be presumed, that, when Brown bought the house, he gave the price, and got back so much from Campbell as would pay the plaintiff. In the case of Farnesly v. Murphy, in the court of Common Pleas of Allegheny county, a case resembling the present, the plaintiff recovered by the direction of the court, on the authority of decided cases.</p>

<p>Chamberlayne v. Delaree, 2 Wils. 353.</p> <p>1 T.Rep.405.</p> <p>Note.—See the case of Stedman v. Gooch.—Espinasse's Reports of Cases at Nisi Prius, 3.</p>

<p>WADDLE was indicted for a forcible entry and detainer, on 2d June, 1790, of a messuage, &c. in Derry township, in possession of Andrew Johnson.</p> <p>called a witness, to prove that the defendant was within the lines of the prosecutor’s claim.</p> <p>objected to this testimony, till proof should be made, that the prosecutor had been in actual possession of the premises.</p>

<p>THIS was an action of covenant. Waller had sold to Hill 600 acres of land in Washington county, to be paid for in whisky ; and for the failure of payment, this action was brought. Waller had bought this land from one Hawkins ; but had no title to more than 100 or 200 acres ; the title to all the lands round it being in other persons, and among others, in James Stephenson, to whom, by a conveyance duly recorded, the same Hawkins sold. Waller’s conveyance from Hawkins was not recorded.</p> <p>Waller’s conveyance from Hawkins, not being recorded, is void as against Stephenson’s conveyance from Hawkins.</p> <p>The act of assembly, for recording deeds, extends only to legal titles. The title of Hawkins was only equitable, an improvement claim.</p>

<p>2 Salk. 660. Cowp. 220.</p>

THIS was an action of Trover for three barrels of spirits, and one of sherry wine. The case was thus. Stivers, a waggoner, undertook, at Philadelphia, to carry these and other goods from Philadelphia to the mouth of Buffaloe, on the Ohio, at a certain place ; received part of the money at Philadelphia, and was to receive the rest on the delivery of the goods to N. M'Farlane, at the mouth of Buffaloe.

<p>2 St. L. 444. 3 St. L. 294.</p>

<p>THE defendant appealed from the judgment of a justice of the peace against him for 10l.</p> <p>The plaintiff declared here in assumsit for his services, as attorney and counsel, in conducing a certain suit in Westmoreland county court.</p> <p>There being a table of fees, fixing an attorney’s fee, in any cause at four dollars, no action can be supported for any higher sum. And no action lies for counsel fees.</p>

THIS was an ejectment for 250 acres of land. The plaintiff’s title was a warrant to Merchant and Bright, for 250 acres of land on the waters of Big Sawickly, adjoining land of Jacob Milliron, &c. dated 10th February, 1786; a survey of 268 acres and 155 perches, and allowance, made 12th April, 1786 ; and a patent 27th October, 1787.

<p>THIS was an action of indebitatus assumsit, for money laid out and expended, for money had and received, and for money due on an insimul computassent.</p> <p>Goudy, for value received, had, before it was due, which was in May, 1795, assigned to Graham a bond, on one Neily and one Emerson, who, in March, 1795, went down the river. Neily never returned publicly. In July, 1795, there was judgment against Emerson, on this bond, a writ of enquiry, and final judgment for 21l. Emerson knew, that Neily had directed one Smith, to pay the bond assigned to Graham; and understood from Graham, that he had given up the bond to Smith, on whom Emerson had a bond; and saw Smith have the bond. In consequence of this, Emerson, who was only a surety, had given up to Neily property, which he had got from him to discharge the bond. There was some proof, that, when this bond was assigned, Graham had his choice of other bonds, and preferred this. And, in conversation, Goudy told Graham, to take care, as that bond was now gone from him. Emerson being insolvent, the present action was brought by the assignee against the assignor of this bond.</p> <p>This is not a negotiable paper, the indorsement of which renders the indorsor liable to the indorsee, on failure of the drawee. If it were, not using due diligence, or giving credit is equal to a payment, and discharges the indorsor. The failure of payment, in this case, arose from the conduct of Graham, who deceived Emerson, by giving the note to Smith, a debtor of his. Graham has also delayed a long time. There is no evidence of what the consideration was, whether 21l. or only 5s. and so there is no certain measure of damages. And there is evidence, that Graham was to run the risk.</p> <p>This action lies for money paid by mistake, or for a consideration which happens to fail; for money got through imposition, express or implied ; or where undue advantage is taken of the plaintiff’s situation; it lies in all cases where the defendant has money, which, in equity and good conscience, he ought not to retain. This is not a negotiable paper; nor is this action brought as if it were.</p>

THIS was an action of indebitatus assumsit, for money had and received. One Sterret purchased, for 29s. 6d. at commissioners’ sale, the claim of one George Knox to a tract of land in Westmoreland county, and sold it, for 50l. to M'Kelvey ; who sold it to Cavode and Williams, for 120l. of which 50l. was paid to Sterret, and 70l. to M'Kelvey; and they bound themselves to warrant and defend, according to the sums respectively received.

<p>1 Bunb 17, 313. 1 Str. 187. Cowp. 423-4. 2 T. Rep.472,694 3 T. Rep. 5. 4 Burr.2035.</p> <p>1 Wils. 255.</p> <p>Carth, 304.</p> <p>Sr. T. Ray, 487.</p> <p>Hob. 73.</p> <p>Molloy 241. B. 2, c. 5. 5 Co. 106-7. 2 Inft. 167. 4 Inft. 134-5. 3 Comm.106.</p> <p>3 T. Rep.336.</p> <p>Doug. 590. 4 T. Rep. 382. Cartb. 476.</p> <p>H. Bla. 164.</p> <p>Robison's Entries, 183. 232 Hansard, 80 Vidian 123. Cro El. 356, 465, 544. Hansard 81. Vidian 127. Co. Ent. 118. Cro. El. 608. Lev. Ent. 62. Rastal. 144, 553. Vidian 112, 119, 132. 3 Lev. 206. Sir T. Ray. 68. Cro El. 581. Butter, 167. Esp. 238.-Clift's Ent. 244. 1 Wils. 316.</p> <p>3 Wils. 348.</p> <p> 2 Bla. Rep. 838. </p> <p>1 Burr. 642.</p> <p>1 Roll. Ab. 665. Sir T. Ray, 68. Cro. El. 581.</p> <p>2 Hale 51, 2 Hawk. 37. 3 Cro. 212-3.</p> <p>Folkes v. Docminique, 2 Str. 1137.</p> <p>Johnson v. Laferre, 2 Ld. Ray, 1459.</p> <p>H. Bla. 164.</p> <p>1 Keb 88.</p> <p>2 Str. 1137.</p> <p>2 Com. Dig. 634.</p> <p>1 Mod 29. Cro. E. 608.</p> <p>1 Bur. 642, 3d Burr. 1923.</p> <p>Doug. 654.</p> <p> Heylen versus Adamson. 2 Burr. 669, 632. </p> <p> Lee v. Edwards, 1 Lev. 280. </p> <p>F.N.B. 120. Lilly. 103. 3 Bla. Com. 154.</p> <p> F. N. B. 120. </p> <p>2 T. Rep. 366.</p> <p>1 Salk. 23.</p> <p>Hardr. 486. 1 Mod. 285. Lev.1.Ventr. Keb.</p> <p>1 Vents.</p> <p>2 Com. Dig. 638.</p> <p>Hart v. Longsitt, 2 L.Ray 848.</p> <p> Dingwall v. Dunster, Doug. 249. </p> <p>Ellis v. Galindo, Doug. 250.</p> <p> 2 L.Ray 842. </p> <p>2 Str. 933.</p> <p>3 Burr. 1671.</p> <p> 3 Bla. 68, 106. </p> <p>5 Co. 107.</p> <p>4 Bac. 249. Cartb 12. Burr. 2037.</p> <p>4 Bac. 249.</p> <p>3 T. Rep.654.</p> <p>3 Bla. 30.</p> <p>ib. 71, 69.</p> <p>Salk. 200. L. Ray. 467. B. Bla. 24-5. 8 Co 386. 60b. 1 Ventr. 1. 30 Bla. 109. 12 Co. 104. 13 Co. 53.</p> <p>H. Bla. 186.</p> <p>ib. 188.</p> <p>3 T.Rep.270. 3 Bla. 108. L.Ray. 1285-6. 2 St.167.</p> <p>Burr. 2119. 1 Vez. 453.</p> <p>Burr. 2037.</p> <p>2 Inst. 167. 5 Co. 106. ib. 107.</p> <p>1 Bla. 293, 2 Inst. 167.</p> <p> Doug. 5. </p> <p> Vattel 2 B. 1 Cb, 3 & 4 sect. p.213-4. </p> <p>ib. prelim, sect. 11, p.6.</p> <p>L.Ray 1286. H. Bla. 186.</p> <p>H. Bla. 194.</p> <p> Str. 1137. </p> <p>H. Bla. 186. 1 Atk. 630.</p> <p>1 Bac. 624. Ventr. 173. 2 Lev. 25. Sid. 320. 1 Com Dig. 277. 1 Bac. 625.</p> <p>2 Bla.442. 1 PowelContr. 6.</p> <p>1 PowelContr. 138.2 Brown, P. C. 249. & vid. Cowp. 290.</p> <p> 1 Powelcontr. 138. </p> <p>Str. 938. 1 Pow. contr. 38, 51.</p> <p>Burr.1671.2. Cro. E. 59. Cro. C. 409.</p> <p>F. N. B. 119. G. 120. K. 121.B. 1 Esp. 182. 3 Bla. 153-4. 2 Bac. 13. 4 Co. 92b.</p> <p>Rastal's Ent. 301. Cowp. 286.</p> <p>Dong. 6, 4-5.</p> <p>1 Wils. 186. 2 Com. Dig. 640. Hardr. 485. Salk. 23. 1 Esp. 183.</p> <p>Cro. E. 355, 461,494,544.</p> <p>1 Wils. 318.</p> <p>2 Com. Dig. 634. Buller, Nisi Pri. 167. Cro. E. 644. 1 Roll. Ab. 593, C. Dig. 638.</p> <p>F.N.B. 120. K. Ibid, 121. 2 Com. Dig. 638.</p> <p>Cro. E. 880.</p> <p> Ib. Allen, 6. </p> <p>Cro. J. 521.</p> <p>2 Com. Dig. 638.</p> <p>Cro. C, 107, 194.</p> <p>L. Ray. 842.</p> <p>1 Roll. Abr. 593. C. 45, 51.</p> <p>1 PowelContr. 349—50.</p> <p>1 Brown's P. C. 87.</p> <p>2 T. Rep. 370.</p> <p> F. N. B. 122. K. </p> <p>2 T.Rep. 366.</p> <p> 3 T. Rep. 62. </p> <p>1 Salk. 25. 1 Salk. 139. 12 Mod. 86. 5 Mod. 133.</p> <p>L. Ray 1061. Str. 931.</p> <p>3 Bla. 394.</p> <p>L. Ray 109. 12 Mod. 510. Cartb. 389. Hard. 117. Buller 2020. Buller 167. Cowp. 825. Doug. 658.</p> <p>H. Bla. 189.</p> <p>2 Com. Dig. 634, Dy. 206a. in marg.</p> <p>Barnes 92. Bla. 877. Burr. 1923, 642, 3 Wils. 378.</p> <p>Burr, 642.</p> <p>Cro. E. 608, 817.</p> <p>1 Leon, 284. 2 Com. Dig. 635. Dy. 219.</p> <p>1 Wils. 316, Cro.E. 96.</p> <p>1 Salk. 209, 2 Com. Dig. 634.</p> <p>6 Mod. 132. 7 Ven. 349. 2Com. Dig 34. Dy. 306, in marg.</p> <p>2 Com. Dig. 634, 1 Rol.abr. 600, l. 45.</p> <p>1 Keb. 88.</p> <p>H. Bla. 174.</p> <p>ib. 189.</p> <p>3 T. Rep.270</p> <p>1 St. L. 33. Hob. 87. Holt 396.</p> <p>Salk 397,607 Str. 1173. Hardr. 503. F.N.B. 7 B. 32E 4 Inst. 17 Plowd.244a. 4. Bac. abr. 203</p> <p>Cowp. 276.</p> <p>L Ray., 957, 6 Mod. 56.</p> <p>2 Wils, 146. See Hargr. Co, Lit. 81b.</p> <p>L.Ray. 957. 6 Mod. 56. L. Ray, 957.</p> <p>Burr. 1243.</p> <p>H. Bla. 241. Burr. 2588.</p> <p>Vinn. Just. Inst. 553-4.</p> <p>ib. 571-4.</p> <p>ib. 564-5.</p> <p>ib. 594-9.</p> <p>3 Comm. 108, 109, 291.</p> <p>H. Bla. 188.</p> <p>Ld.Ray.223, 235,1285.H. Bla.185,189.3 T.Rep.329, 343. Stat.13, R. 2, c.5,15, R. 2, c. 3.</p> <p>Case last cited 1 Bac.abr.627 Cartb. 26. Hardr. 473, denied 2 Str. 890.</p> <p>3 Mod. 245.</p> <p>2 Ld. Ray. 1285.</p> <p>H.Bla.185.</p> <p>3T.Rep.333.</p> <p>Doug. 572, 597.</p> <p>Hardr. 473. 2 L. Ray, 1285. 2 Str. 890.</p> <p>2 St. L. 16.</p> <p>1 Powel contr. 244. 4 Burr, 2035-9. 1 Burr. 271-3 5 T.Rep.720-1.</p> <p>Hamilton v. Davis. 1 Burr.2732.</p> <p>C vii.Hargr. Law Tracts 37.</p> <p>2 L.Ray1285, 1452. 1 L.Ray,272 Hob. 212. Doug. 615.</p> <p>Mosloy. B. 2, C. 2, 816.</p> <p> 9 Co. Rep 47a. 6 Co. Rep. 38b. System of Pleading 184. </p> <p> 12 Co. 77, 78. 4 Burr. 2035-9. 2T. Rep. 475,649, &c. </p> <p> 4 Burr. 2035. </p> <p> 3T.Rep.348. </p> <p> Bull v. Steward, 1 Wils. 355. 2 Wils. 5. </p> <p>2 Str. 915.</p> <p>Bracton B.3, 10 Wheatly v. Low, Cro J. 667, Coggs v. Barnard, L. Ray 909, 920.</p> <p>1 PowelContr. 364-5.</p> <p>1 PowelContr. 331, 343. 2 Comm. 445-6. 3 Burr. 1663.</p> <p>1 Comm. 445-6. 3 Bac. Abr 146. Cowp.290-4.</p> <p>1 PowelContr. 331-4. Ld. Ray 909-19.</p> <p>Wheatly v. Low, Cro. J. 668. 1 Powel Contr. 365-6.</p> <p>Brown & ux v. Garborough Cro. El. 63. v. Storer Dyer, 272 b. pl. 32. in not.</p> <p>Sec 1 Powel Contr. 345. Cro. J. 342 Hob. 4, 5.</p> <p>1 PowelContr. 343, Stursy v. Albany, Cro. El. 6-, 150. Gilbert v. Rudderhead Dyer 272. b. pl. 32, in not. 1 PowelContr. 348-52. Hunt v. Bale Dy. 272, b pl. 31. Barker v. Halifax Cro. El 741 1 Com. Dig. 142.</p> <p>2 Bulstr. 73. 1 PowelContr 379.</p> <p>Warcop v. Morse, Cro. El. 138 See also Cro. El. 42, 94, 138. Dy. 272, b. 3l. 3 Bulstr. 18l. 1 Rolle Rep. 381, Rolle abr 12.pl.10, 1 PowelContr. 372. Dyer 272. b. 32. Bosden v. Thinn, Cro. J. 18. Sidenham v. Worthington, Cro. El. 42. Cro. Car. 403. Salk. 96. Cowp. 294. Cro. El. 42. Dyer 272. b. 32 in not 1 PowelContr. 351.</p> <p>2 Bulstr. 73.</p> <p>Cro. El. 138.</p> <p>Rastall v. Avarne, 2 T. Rep. 366. 1 PowelContr. 209-31. Shove v. Webb, 1 T. Rep. 732.</p> <p>1 Salk. 23. 1 L. Ray 69. 2 Burr, 1009. Hardr, 485.</p> <p>Brown v. London, 1 Mod. 285.</p> <p>1 Salk. 23, 12l. 2 L. Ray 1035. 2 Com. Dig. 64.</p> <p>1 Ventr. 1 98 2 Com. Dig. 64l, 1 Salk. 23, 125. 3 Salk.14, 175 L. Ray, 69, 1034-5, 1 Salk 23. L. Ray, 849, 982, 224. 1 Esp 123. Dyer, 230, pl. 56 Sands v. Trevilion, Cro. Car, 107-193. 2 Com. Dig. 639, 1 Roll. 594, 35 Dyer 272. Hardr. 485. Shandow v. Simson, Co. El. 880.</p> <p>2 Com, Dig. 639, 9 H.5, 14. Eaxter v. Read. Dyer, 272, in not.</p> <p>Hardr. 486.</p> <p>Hob. 216. 1 Powel, Contr. 344.</p> <p>1 P.Wms.194. Ayliff v. Archdale. Cro. El.920. Clerk v. Gov. & Co. of Taylors, in Exchequer on error,-and judgment of B.R. reversed, 3 Lev 241. March 77. 193, Moore Pl. 259 279. 2 Leon 210. Noy. 98. 1 PowelContr. 169. Mitche v. Reynolds. 1 P. Wms. 181, 197.</p> <p>Vinn. Just. Inst. 554. 1 Powel. Contr. 330.</p> <p>Preston v. Tooley, Cro. El. 74.</p> <p>Lady Shandois v. Simsom Cro. El. 880.</p> <p>2 Roll. 77. 2 Com. Dig. 638, 193. Dyer 230, b. 56 Bradford v. Woodhouse Cro. J. 520.</p> <p>H. Bla. 241.</p>

<p>THIS case was argued, at July term, 1793, by Serjeant and Todd, for the plaintiff, and by Ingerfoll and Tilghman, for the defendant in error.</p> <p>The opinion of the court, delivered by the president, on the 17th of July, 1793, comprehended a state of the case and affirmed the judgment.</p>

<p>See Pasley v. Freeman 3T Rep. 51 and cases there cited. 1 Salk. 210.</p>

<p>THIS was an action of debt for 20l. a penalty on the act of assembly against usury.</p> <p>John Black bound his son Daniel Black, a boy of fourteen years of age, to Kirkpatrick, by indenture, dated 8th April, 1792, until J. Black pay Kirkpatrick a bond of the same date of 20l. being cash lent. Black was to find his son in sufficient clothing during his service; but if not, and Kirkpatrick did it, Black was to repay it. If Kirkpatrick sent the son to school, Black was to pay for the schooling, and make up for the time lost. Kirkpatrick was to find the son in sufficient meat, washing, mending, and lodging. The bond mentioned was given by J. Black to Kirkpatrick, for the payment of 20l. being cash lent. There was a penalty of 40l. in it. The lad served Kirkpatrick four months, and twenty days, and got no cloaths from him. J. Black then paid Kirkpatrick 20l. but he would not give up the bond, till he also paid him 9s. and 4d. as interest on it. This J. Black also paid him ; but said this was not according to the bargain.</p> <p>This is not usury, but a fair transaction. Where there is a risk of loss of the money, or a failure of payment, at a day fixed, more than legal interest may be reserved. The service of the borrower’s son was a pawn or security for the payment of the loan. Possession of a house may be given as a pawn ; a pawn may be used, and yet interest may be taken.</p> <p>This is not a case of risk. The service of the boy was the agreed compensation for the use of the money. If one to whom possession of land was given, as a security for debt, retain the possession, after he has received all that was due from the profits of the land, it is usury.</p>

<p>TO an action of debt on a bond, dated 20th April, 1784, and assigned 22d April, 1789, the defendant pleaded payment, with leave to give the special matter in evidence.</p> <p>stated, that this bond (with others) was given in payment for a tract of land, the greater part of which was affected by a prior adverse title. To prove this, after producing an article by Adam Carnahan, of the same date with the bond, for the sale of a tract of land to Hall, and conveyance of the land, of the same date, warranting it against all former rights; he produced an office copy of a survey, reciting it as made for George Risler, 23d September, 1776, on a warrant granted 20th August, 1776.</p> <p>objected to this testimony, for two reasons—</p> <p>1. Because Hall has never been evicted, but is still in possession of the land; and the plaintiff is not, in this action, called on to make good his right against an adverse title.</p> <p>2. Because, if evidence of want of title might be given, this evidence is improper to be received, without first shewing the warrant, on which the survey was made: for the best evidence must be produced, or the want of it accounted for, before an inferior kind can be received ; and the want of the warrant, unexplained, founds a presumption, that, if produced, it would make against the defendant.</p> <p>We are not now trying an ejectment; but shewing why, on equitable grounds, the money should not be paid now.</p> <p>But it was agreed, that the evidence be admitted; but the points be reserved for the opinion of the court, and be made part of the record, so as to be examinable on a writ of error.</p> <p>The survey offered was then shewn, containing 345 acres, and it was proved, that 266 acres of it was of the lands fold by Adam Carnahan to Hall.</p> <p>There was a verdict for defendant.</p> <p>At December term, 1793, the opinion of the court was delivered on the reserved points.</p>

<p>3 Reeve Eng Law 273-4 2 Powel Contr. 64. 2 Comm 447-8 Noy's Max c 42 p. 86-8 Comb. 341. Losst. 121. 3 Str, 166-7.</p> <p>3 Reeve Eng Law 374. 2 Powel Contr. 64. See also 2 Med 243. 2 Comm 447-8. 2 Str. 955.</p> <p>2 Com, Di. 632. Bull Ni. Pri. 49, 50.</p> <p>Bateman v. Ellman Cro. El. 866.</p> <p>James, versus Price, Losst. 219.</p> <p>Bach, versus Owen. 5 T. Rep. 499.</p> <p>Co. Lit. 145-6 Woods Inst. 192,570.</p> <p>Co Lit 145,b. Bull Ni.Pri. 53-2 Esp 48-9.</p> <p>Dall. 156.</p> <p>Co Lit. 145,b. 5 Bac abr.260-3 Bull Ni. Pri. 53.</p> <p>5 Bac. 261, Bull.Ni.Pri. 35.</p> <p>Cro. El. 164. 5Bac.abr.261 Bull 35.133-4. 1 Esp. 105-6. 2Esp. 333. Atkinson v Barnes Losst. 325. Green v. Farmer.</p> <p>4Burr .1214 1Bla. 651.</p> <p>Dall. 444.</p> <p>Basset v. Maynard.(Palmer's case)5 Co. 25 Cro. El. 219.Yelv.188. 5 Bac. 261. 3 Wils. 332</p> <p>2 Comm. 398.</p>

<p>Jacobs v. Adams. Dall. 52.—See also Dall 26, 313. 2 Bla. Rep 61. 3Wils 205-6. 2Bro. Cha. 2.</p> <p>Vesey jr. 17.</p> <p>Note.—Yet interest is recoverable on a settled account from the date of the settlement.</p>

THE declaration stated, that in consideration of two books and silver spurs sold to Jones by Parr, Jones promised to give to Parr a trait or land on Grave creek flats, then in the possession of one Tomlinson, but the property of Jones, and to pay Parr for all improvements, which he should make on Jones’s land; that Parr improved four years, made houses, gardens, meadows, fences, &c. and that Jones did not furnish the trait of land, nor pay for the improvements made, though…

<p>1 St.L. 5,64.</p> <p>2 Hale 244-5.</p> <p>Vaux's case, 4 Co. 44. 2 Hawk. 536-7.</p> <p> Cogan's case, Leach, Crown Law 389. </p> <p>2 Hawk. 320-6.</p> <p>Leach's Cro. Law 239. ib. 77.</p> <p>Leach’s Cro. Law 13.</p> <p>1 St. L. 64.</p>

<p>12 Co. 36-7. 1 Hawk. 69. 1 Hale P.C. 628.</p> <p>1 Hale 628.</p> <p>Woods Inst. 370.</p> <p> Gen. xxxviii. 9. </p>

THIS was an action of covenant on articles to convey land. Swearingen had purchased 500 acres of land from David Shepherd and sold it to Nessly, who had also purchased from Shepherd 900 acres of land, adjoining the first. Shepherd conveyed 1000 acres to Nessly, telling him that 500 of these were on Swearingen's account.—Shepherd had not title to more than 1000 acres. David Shepherd being produced as a witness, was objected to, as interested.

<p>vid. 1 Hale 559 560 2 Hawk 624-5 Kel 30 52. 2 Hale 245 6.</p>

<p>ON an appeal from the judgment of a justice of the peace, Hill, the plaintiff, declared in assumsit, for 3l. 16s. for goods, wares, and merchandizes sold. The evidence was of wheat delivered into the mill of Wallace, the defendant, generally, without stating any particular purpose.</p> <p>The justice was right in giving judgment against Hill, even though the wheat had been received and misapplied by Wallace for only trover will lie in this case, and a justice has no cognisance of trover. This is no sale, nor delivery for the use of the defendant, but a delivery for the use of Hill. Therefore, trover is the only proper action. Assumsit is not maintainable, and there ought to be a nonsuit.</p> <p>The delivery of the wheat is clearly proved, and will support assumpsit, an action rather to be favoured than trover.</p>

<p>THIS was an action on the case, for selling a horse for 20l. assuming that he was found, when, in fact, he was unfound, and of that unsoundness died.</p> <p>It was proved, that Rankin, in selling the horse, said, he had been overheated, and was foundered; but that he would warrant him found in other respects. The horse, after being worked sometime, died two weeks after the sale; and there were opinions, that he had been affected, for some time before the sale, with the disease of which he died.</p> <p>argued, that there was no fraud in the contract, that the sale was fair, and that the death of the horse was owing to his having been over-worked.</p>

HONEYMAN was indicted for the murder of Benjamin Askins, on 23d November, 1793.—Askins, Honeyman, and two others, Ward and Faris, had been drinking together, and were dancing in Askin’s house. Ward shoved Faris, who complained of it.—Ward asked if he resented it. Askins said, if he did not, he would; and he threw off his cloaths, and struck at Ward, who kept off the blow, and left the house. Honeyman called after him to come back, and see it out, and he would see fair play.

<p>CHAMBERS and Boyd employed Crawford and Barker, boat-builders, to build for them a Kentucky boat, for conveying them and their families down the Ohio. The boat was built, delivered, and loaded; but had not proceeded many miles, till she took in water, and continuing to do so, funk about a mile below the mouth of Turtle-creek, in the Monongahela. The goods aboard, worth upwards of 100l. were lost. The plaintiffs paid the defendants 14l. for the boat, being about a dollar per foot in length. They brought assumsit on an undertaking to build a sufficient Kentucky boat, averring it insufficient, and thereby lost with the goods.</p> <p>One not a workman is not liable for insufficient work, without an express promise. A workman is, without a promise. The defendants are workmen, and liable without a promise. But to what? Only to damage for time lost in getting a better boat. The employer ought not to accept the boat, and then, after a loss, come on the workmen for insufficient workmanship. The employer ought to examine the work at the time, and then either accept or reject it conclusively; and he is bound by his acceptance; and cannot afterwards say, that the work is bad. The loss that has happened is, in a great measure, owing to their own carelessness, in tying the boat insufficiently to the shore.</p> <p>and drew a lively picture of their damage and distress.</p>

<p>TO an action of trover, for a United States certificate of 41l. payable to bearer, brought to March term, 1793, and saying the conversion on 1st October, 1792, the defendant pleaded the general issue, and the statute of limitations.</p> <p>In a suit before a justice of the peace, in September, 1785, judgment had been given against Horsefield, for 3l. 5s. 10d. Cost became security for this debt, and Horsefield having left the country, the justice, about a year after the judgment, at the desire of Cost, who had this certificate of Horsefield in his band, issued an execution, on which Cost gave up the certificate to the constable, for sale, who after the us usual notice, sold it to Cost for 5l. The sale was open and fair, and the price supposed reasonable. No demand of the certificate was made of Cost till January, 1793, when demand was made by Horsefield's attorney. Cost refused to give it, saying he bought it at constable’s sale, and that Horsefield was yet in his debt. Together with the demand, an offer was also made to pay Cost the debt due him by Horsefield.</p> <p>The material points in trover are property and conversion. This certificate was left for safe custody. A pawn cannot be sold by the private authority of the pledgee; but if he sue, he may take the pawn in execution, and sell it by authority of law. The sale by the constable, and the purchase made by Cost, a public and notorious act, was clearly a conversion, and the statute of limitations, running from that, bars this action.</p> <p>The property of goods pawned is not altered, but remains in the pawnor, to be redeemed at any time. The statute of limitations does not prevent our recovery. The cause of action accrues only from demand and refusal. No suit could have been brought without such demand and refusal. The sale is the act of Cost, and wholly of his contrivance. You ought to give in damages the value of the certificate at the time of the demand, that is 41l. with interest.</p>

<p>THIS was an action on the case against a justice of a the peace, for wilfully and oppressively issuing an execution against the goods of the plaintiff, Buchanan, on a judgment given against him by the defendant, the justice, at the suit of Peter Peterson, for 3l. 18s. when the said judgment was satisfied, of which the defendant had notice.</p> <p>Peterson had put into the hands of Taylor sundry notes or claims for money due, and, among the rest one against Buchanan, on which this judgment was given. Peterson being in want of money, applied to one Fink, who lent him a certain sum, on Taylor becoming surety, which he did on condition, that he should be at liberty to apply the money due on the judgments before him, when it came into his hands, to the payment of the money borrowed from Fink. Peterson agreed to this. Buchanan was present, and told Fink, that, as to the money due by him, it was a just debt, and he need not fear its being paid.</p> <p>Fink demanding payment of the money lent, an execution was issued against Buchanan, who, having some other dealings with Peterson, went to him and procured from him a receipt for 3l. 18s. to be set up against the judgment confessed by him before Taylor, to which Buchanan said Taylor would agree. This receipt was shewn to Taylor, and he was desired to allow it in the execution. But he refused, because the money had been appropriated to satisfy the debt due to Fink, and that debt was not yet satisfied. The execution was proceeded in; and a horse of Buchanan's was sold for 5l. to a friend of his, who sold him back to Buchanan for 12l. On this the claim of damages was founded, and they were laid at 20l. The money made on the execution was paid over to Fink. Notice of this suit had been given to the justice, according to the act for rendering justices of the peace more safe in the execution of their office, &c.</p> <p>that Peterson having assigned the money due on this judgment, to a certain purpose, had no further control over it; and that a justice was only answerable for corruption, oppression, partiality, or malice : none of which existed here ; for the conduct of the justice was fair and honest.</p> <p>Peterson remained in the character of plaintiff before the justice, and had control over the judgment. The justice was judging in his own cause.</p>

JOHN BELL was indicted for the murder of James Chalfant, by striking him with a stake on the head.

An action of covenant on a conveyance from Castleman to Redden, of all right and title in seventy acres of land, for 70l. dated 13th January, 1781, with a warranty against all claiming by improvement. The land is near Pittsburgh, and was then in Westmoreland county.

<p> 1 L. Ray. 484. </p>

Proceedings, on what is called the land-lord and tenant law, before two justices of the peace, were removed by certiorari into the county court. Young and H. Ross, moved to quash the certiorari. 1. Because, under this law, the proceedings can be removed into the court of Common Pleas, only in case of an adverse title. 2. Because this is a summary remedy, which a certiorari would altogether defeat; and 3. Because the certiorari ought not to have issued, but on cause shewn.

An inquisition of a forcible entry and detainer, taken before two justices of the peace in Allegheny county, being removed by certiorari into the county court,* instead of traversing the inquisition, and trying it by a jury, the counsel on both sides, presented the following written agreement to the court, 8th March, 1794. ‘‘Agreed, that a verdict for the Commonwealth be entered, on this inquest, subject to the opinion of the court on the following case.

The defendant, a justice of the peace, having, without the consent of the plaintiff, her father, married his daughter to Enoch Varnum; the plaintiff brought an action of debt, on the act of assembly for the penalty of 50l. The writ was returnable to March term, 1793. Written notice of the action to the justice was proved. The daughter and Varnum came to Taylor’s house, a little after midnight, on Monday morning, in December 1792, and were there married by him.

Bowers brought an action of trespass vi et armis, against Fitzrandolph, for killing his dog. The dog had bit Fitzrandolph, who, a few minutes after, seeing the dog again, shot him. There was also some slight grounds to excite a suspision, that the dog was mad.

Samuel Semple had cleared, fenced, and, for several years, occupied a piece of ground, in the manor of Pittsburgh, but neglecting to take out a title for it, John Marie purchased it from the proprietaries; brought an ejectment against Semple, for it, and obtained possession; and now brought trespass for mesna profits. Evidence of Semple’s clearing and improving the land was objected to.

At the trial of an ejectment for 317 acres of land, in Armstrong township, the plaintiff produced an application, No. 588, dated 3d April, 1769, in name of David M'Crory, for 300 acres, on a run emptying into Blacklick creek, five or six miles above the Blacklick, on the west side of said creek; and a survey of 317 acres, made 22d April, 1773, described as in the location; and a conveyance of the same land, in see-simple, from David M'Crory to Samuel Dixon, dated 3d July,…

<p>CAMPBELL was indicted for stealing a fifty-dollar bank note, the property of Daniel Prosser.</p> <p>William Todd, having contracted with the Governor for making a certain distance of the state road from Philadelphia to Pittsburgh, employed Campbell and Prosser, to make the road in part of that distance; and advanced 60 dollars, viz. 10 silver dollars, and a 50-dollar bank bill. Campbell took up the bill, and Prosser the silver; and they went to a neighbouring tavern, to get the bill changed for dollars6, and then divide the whole money equally between them. Not getting the bill changed at the tavern, Campbell desired Prosser to give him the silver, and take the note to another tavern, on his way home, and there have it changed, and give him his share afterwards. The note was then lying on the table with a paper in which it had been given them by Todd.- Prosser gave Campbell the silver, and proceeded to take up the note. Campbell bade him stop till he folded it up. While Campbell was folding it up, Prosser turned about to drink with some one in company. Campbell delivered the folded paper to Prosser, who immediately put it in his pocket. When he opened the paper at home, there was no note in it. There was some evidence, that Campbell, folding and delivering the paper, retained a dirty paper; and that he, afterwards proposed to pay Prosser 30 dollars, on his return from Philadelphia, whither he was going, if Prosser would swear, that he had lost the note. This Prosser refused to do.</p> <p>This can be no larceny; for there never was a possession in Prosser; and there was a joint property. Supposing, therefore, a purloining or embezzling, it is not stealing. The offence, if there be any, is of another kind a cheat.</p> <p>There is an actual and constructive possession, an absolute and special property; and larceny may be of either.</p>

<p> 1 T.Rep. 300. </p> <p>1 St.L. 107.</p> <p> See Cook v. Laugblin, post </p>

<p>Act of Virginia, 1779.</p> <p>Antc p. 127</p>

The inspector declared, that Elliot and Williams offered to him, for his inspection and examination, 88 barrels or casks of flour, then intended for exportation by them; which said casks, under an act of assembly of 5th April, 1781, entitled, an act to prevent the exportation of bread and flour not merchantable, &c. were of the description number 2, and ought to have contained each 196 lbs. when, in fact, they did not contain 196 lbs. but were deficient 1469 lbs. whereby…

<p>Robertson was indicted for the murder “of an Indian man of the Munsey tribe,” on 1st of May, 1794.—</p> <p>Robertson was in the employment of the contractor and in a house of his, at Fort-Franklin, and was frying meat on the fire. The Indian came in drunk, and stept across the frying-pan, as if to kick it over. Robertson bade him go out, and on his refusing, said he would put him out. The Indian persisting in his refusal to go out, Robertson proceeded to put him out. A struggle ensued, and both fell. Robertson got up first, and seized the Indian’s feet, to drag him out. When he had dragged him as far as the door, the Indian seized the door post. Robertson called to some present, to part the Indian from the door-post, the Indian said he would let go his hold. Robertson, then let go his hold of the Indian’s feet. On this the Indian kicked Robertson with one of his feet in the face, so that the blood run from his nose in a stream. Then the Indian got up, and made at Robertson, who thereupon seized the bar of the door, which was of cherry-tree, three feet long, about three inches broad, and half an inch thick, and struck the Indian with the narrow side of it, on the side of his head, so that he instantly fell and died. The Indian was a strong man, of about fix feet high, much stouter than Robertson. He was standing outside the door, and between Robertson and the door. The bar was lying outside the door on the ground. The Indian had a knife. The Indians generally were, at that time, supposed to be dangerous, so that the people durst not go out of the fort. The Munsey tribe, or part of them, were hostile, this man was under strong suspicions, was a bad Indian, of no repute among his own people, who thought the killing of him not improper. Such was the case on the evidence.</p> <p>contended, that this was but homicide se defendendo, and the jury ought to acquit. 1 Hawk. 113, 3 Bac. 675, 1 Hale, 486, 4 Comm. 184.</p> <p>cited 1 Hale, 485, 1 Hawk. 105, 108.</p>

<p>Rex v. Rhodes 2 Str. 728. 2 Hawk. 611.</p> <p>4 Burr. 2251. Dall. 110.</p>

<p>This was an ejectment for 302 acres and 18 perches of land in Plumb township, Allegheny county, on the demise of Robert Waddel, of 2d July, 1791, to hold from 1st July, 1791, for ten years.</p> <p>The plaintiff shewed a warrant dated 30th August, 1785, for 300 acres of land, on the waters of Thompson’s run, joining lands of Bernard Dougherty and others, interest commencing from 4th March, 1772; with a survey, made 7th July, 1787, on this warrant and an order of the Board of Property of 5th March, 1787, containing 302 acres and 18 perches; and a patent, on this warrant and survey, dated 24th March, 1792.</p> <p>He then proved, that Joseph Creswell, having a general authority from David Rogers to make or buy improvements for him, bought, for a trifle, from James Myers, a small improvement, to wit, some trees deadened, got a survey made on it including this improvement and the land in dispute, hired a man to make rails, had about nine hundred made, some more trees deadened, and a cabbin raised to the joists. This was between the years 1772 and 1774. None ever lived on the land, till Isaac West came on it, claiming for himself. This was before, or in, the year 1774. He rooted the cabbin, and lived in it; built a house twenty-seven feet long, made a large improvement of upwards of twenty acres of cleared land, and lived on the land till 1778, when he was killed by the Indians, the house burnt, and the neighbourhood desolated.</p> <p>The defendant shewed a location, No. 3396, in the name of Eleazer Myers, dated 13th June, 1769, for 300 acres of land, joining lands of Jacob Bousman, about a mile and a half from Forbes's breast-works, on the waters of Thompson’s run, on the right hand branch about four miles and a half from the mouth; with a survey made on this location, 3d December, 1784, containing 352½ acres and allowance, on a branch of Thompson's run in Pitt township, Westmoreland county. Before this survey, E. Myers had, on this location perhaps, though that did not certainly appear, made a survey of another tract of land, about half a mile or three quarters of a mile distant from this, and fold it to Bernard Dougherty; but one Beattie having a prior location for that, E. Myers gave up his pretentions, that Beattie might obtain his patent, and afterwards, on 3d December, 1784, made the above survey of the land in question, which answered exactly, and better than Beattie’s land, to the description of this location.</p> <p>The defendant also proved, that, in the fall of 1772, Robert Thompson made an improvement on the land in question, on Thompson's run, deadened trees, made brush heaps, marked a tree with his name, and afterwards, and perhaps before West was killed, fold this improvement to E. Myers for 15l. Creswell’s improvement was about a quarter of a mile distant, and both his and Thompson’s were within both surveys made on Waddel’s warrant and Myers's location. In spring, 1785, E. Myers put a tenant on the land, who sitted up an old uncovered cabbin, and went into it, under a lease for four years. The old improvement was then all grown up. None had lived on it from the time of West’s death. This tenant cleared and planted nine acres that spring, twelve acres the spring following, and nine the spring after that. E. Myers occasionally, from time to time, claimed title, through his location, to the land in West’s possession. Isaac Lane, who came to this country with West in 1772, made an improvement a quarter of a mile distant from West’s, and, together with West’s, within the survey afterwards made by Creswell. In the fall of 1772, or spring of 1773, Rogers and Waddle came to Lane, and he bought Rogers’s claim for 10l. E. Myers was present, and said he would have that or the adjoining tract by his location, but would let West live there all his days.</p>

<p>2 Ventr. 361. 1 Vern. 367. Dall. 72, 424.</p> <p> Lessee of Waddle v. Gray. Ante p. 248. </p> <p>Runnington 15</p> <p>I Vesey 454.</p>

<p>3 St. L. 599. 3 St. L. 601.</p>

This was an action of trespass, for breaking the close of the plaintiff, and treading and departuring the grass in his meadow. There was evidence that M'Kinney had thrown down the fence, and turned his horses into the meadow. It was proved, that the fence, though not what is called a lawful fence, or agreeable to the directions of the act to regulate fences, &c.; yet was generally what is called a neighbourly fence; and that M'Kinney’s horses were breachy.

<p>Kirkpatrick brought an action of indebitatus assumsit, for 86l. 2s. 8d. for goods sold and delivered. There were counts of quantum valuerunt; and insimul computassent.</p> <p>An account settled, 26th June, 1793, by the plaintiff and Mr. Marmie, and signed by Marmie, acknowledging a balance of 50l. 2s. 8½d. and an order of John Probst, for 16cwt. of iron at 361. also due, was given in evidence.</p> <p>On which there was a verdict for 95l. 8s. 7½d. the amount of the settled account with interest from the settlement.</p> <p>By consent, this verdict, which was in absence of the defendant, was set aside; and the cause was tried again, at June term, 1795.</p> <p>objected to one item in the settled account, a bill of 100 dollars, drawn by Peter Marmie, on his separate credit, on John Barclay in Philadelphia, and returned protested. One partner can bind the others only in a partnership transaction. We offer to prove, that this order was drawn by Peter Marmie, and not by the partnership firm, Turnbull and Marmie; and that it was known to be so by the plaintiff, and therefore was not a subject of the settlement of a partnership account.</p> <p>contended, that the account having been settled by the partner, as a partnership account, evidence will not now be received, that any part of it was a separate account. An admission by one is an admission by all.</p>

<p>1 PowelContr. 6 &c. 330.</p>

<p>A writ of habeas corpus, for Catharine, a mulatto woman, having been directed to James Montgomery, he returned, that he claimed her as a servant under an indenture, dated 7th November, 1777, by the overseers of the poor of Leacock township in Lancaster county, with the consent of two justices of the county, binding her, as the child of a woman an indented servant of his, to him, till the said mulatto child, born 8th September, 1775, should accomplish her full age of thirty-one years, according to law.</p> <p>This indenture is executed by virtue of the act for the better regulating of Negroes. The binding of the overseers is conclusive, that all the necessary requisites for giving them authority existed at the time; and the existence of those requisites is not now traversable. Many acts of justices, as convictions on view, &c. are records, and not traversable. No man would take a servant, if, after twenty years, the ground of the binding were traversable; and thus the law, intended to preserve the blood from commixture, would be entirely defeated. The law requires not only the agency of overseers, who are mere ministerial agents, but of justices of the peace, who are judicial officers. This shews an intention to make their joint acts conclusive.</p> <p>The act has a variety of objects in view, The 8th section is the material one. It enacts that if any white man or woman cohabit or dwell with any Negro under pretence of being married, the child or children of such white man or woman shall be put out to service until they come to the age of thirty-one years. It gives no power to record a conviction. The courts had this power. In some other cases in this act, single justices have powers.</p> <p>There ought to have been a previous conviction in the county court, and, in consequence of that, with, or perhaps without, an order of the court, the overseers could bind. Then the proof could, at any distance of time, be given. The binding is in consequence of the conviction, and is a part of the punishment.</p> <p>Here the innocent offspring is bound by the act of mere executive officers. This is such tyranny as can exist in no free country. Indeed the law is now repealed.</p> <p>Were the construction contended for to be held good, it would be easy for the overseers to pick up and bind any helpless mulatto child. Shall not this be enquired into? The authority is merely ministerial, and must be subject to control. The subject requires the solemnity of a court of record.</p> <p>Commissioners of bankruptcy have powers like a court of record. They may imprison, &c.; yet their acts are traversable.</p> <p>In most cases of summary convictions, forms of conviction are prescribed; why did not this act prescribe a form, if it was intended that any act out of court should be conclusive?</p> <p>The law is careful of the person and interest of minors. It appoints guardians for them.</p> <p>A conviction is necessary to recover the fine of 30l. under this section; a fortiori, to bind the innocent child. The court will surely not presume what ought to be established by a conviction.</p> <p>The indenture does not even set out the necessary requisites: it says not, that the father and mother lived together under pretence of marriage. The overseers therefore shew no authority. It may have been an ordinary binding of a helpless orphan, and good only till 18 years of age. The petitioner has already served 19 years; and that is sufficient to indemnify the master.</p> <p>Brackenridge. There are two parts of the punishment of the offence against this act; one is the fine of the parents, another the servitude of the child. There is no reason, why, because the state has not prosecuted for the one, the overseers may not exercise their part of the duty. The two things are entirely separate. The acts of a justice of the peace are frequently conclusive; as in cases of debt under forty shillings, and in many convictions for the breach of penal laws.</p> <p>We are to consider this case, as if it were discussed the day after the binding, with all the prejudices then existing. The binding was not traversable one hour after it was completed. If traversable then, I admit, it is traversable now.</p>

The parties went down the Ohio river, to the Cumberland river and the Southern-Territory, on a joint trading adventure, with whisky, flour, cider, &c. Disputes arising between them, there was a reference to arbitrators, and an award in favour of Death and a suit before a justice, and judgment for 20l. proc. money, in favour of Death. They quarrelled; Death beat Betts, and, to avoid an arrest in that territory, hastily left it.

<p>Canon gave Campbell a bond for the payment of money, with a warrant of attorney to confess judgment. A judgment had accordingly been entered, and, a year and day having expired without any execution, a scire facias was issued; but, to get an execution more quickly, this was discontinued, and another judgment entered on the warrant annexed to the bond, and execution on this second judgment was issued. And now a motion was made to set aside this second judgment, and the execution on it, as irregular.</p>

<p>Gillespie was indicted for unlawfully, forcibly, and contemptuously, tearing down, and contemptuously refusing to replace, an advertisement, set up by the commissioners of Fayette county, of the sale of lands there for arrears of county taxes.</p>

<p>1 St. L. 275.</p> <p>1 St. L. 275. See 2 St. L. 688-9. 3 St. L. 181, 472-3.</p>

THERE was a dispute between the parties about the property of two hogs, which both claimed, and Kerr killed. At December sessions, 1792, in Washington county, Workman procured a bill of indictment to be sent up and found against Kerr, for stealing the hogs.

<p>THIS was an action of indebitatus assumsit for 50l. had and received.</p> <p>offered to prove, that Hook and Robison exchanged horses, Hook giving with his horse 8l. That, it afterwards appearing, that the horse which Hook had received from Robison, having been stolen from one Rhinberger in Maryland, was reclaimed by him, Hook had given him up to the owner, and now brought this action, to recover the money which he had given to Robison, and also the further sum of 26l. Virginia money, which, he proposed also to prove, Robison had afterwards received, for the horse he got from Hook and sold to another.</p> <p>The action is for money had and received, we cannot admit evidence of a horse had and received.</p> <p>President. The evidence is clearly proper and must be admitted.</p> <p>The evidence was then given, as stated.</p> <p>Woods, The plaintiff, having given up the horse to Rhinberger, without any verdict or suit, has no right to call on the defendant now for the value of him; as it has never been established, that the defendant had not a good title to him, at the time of the sale. No man’s property shall be taken from him, but by trial by jury. Were it otherwise, the plaintiff’s cruel and indelicate treatment of the defendant, in having him indicted for a felony of which he was acquitted,* ought to prevent any recovery by him, and subject him to the costs of the prosecution. The acquittal on this indictment is evidence, that the defendant had the property of the horse.</p> <p>Hook had his option to contest the property of the horse with Rhinberger, or give up the horse, and sue Robison. We are not now trying an action for a malicious prosecution.</p>

THIS was an ejectment for 306 acres in Versailles township, Allegheny county. shewed a warrant to James Hamilton, dated 16th July, 1787, for 300 acres of land, called the Whiteoak-Level, adjoining lands of the heirs of M’Kee, deceased; a survey on this warrant made 11th October, 1787, of 306 acres and 133 perches, and the allowance; and a patent dated 11th March, 1788.

<p>THESE men were indicted for having, on 18th August, 1794, unlawfully, riotously, and routously assembled together, to disturb the peace, and, in Market Street in Pittsburgh, raised a pole or standard, called a liberty-pole, in defiance of the laws of the state of Pennsylvania, and of the United States, and as an indignity and insult to the honourable James Ross, Jasper Yeates, and William Bradford, Esquires, commissioners on behalf of the United States of America, and the honourable Thomas M'Kean and William Irwin, Esquires, commissioners on behalf of the state of Pennsylvania, to confer, with the citizens of the counties west of the Allegheny mountains; to the great disturbance of the peace, and to the ill example of others.</p> <p>These men acted under force, as those had done, who went from Pittsburgh to the meeting at Braddock’s-Field. They had no view to oppose the government. Many did not sign the terms of amnesty, because they supposed themselves innocent. It was not the intention of the defendants to oppose the laws, but to save the town from violence.</p>

<p>THIS was an action on a promise to give the plaintiff an hundred acres of land, a cow, and plow-irons, if he would marry Isabella Hill, his niece. The marriage took place, against the will of the woman’s father. And the promise was proved in substance, partly from conversations before, and partly from declarations after the marriage.</p> <p>contended that the promise was not binding.</p>

<p>THEY were indicted for a riot, committed 3d September, 1794, in besetting the doors and windows of the house of Simon Drum, in the town of Greensburgh, throwing stones, &c. at the doors and windows, with intent to beat, wound, tar and feather, and evilly intreat Jasper Yeates and William Bradford, commissioners on the part of the United States, and Thomas McKean and William Irwin, commissioners on the part of the state of Pennsylvania, to confer with the citizens west of the mountains.</p>

<p>ON the trial of an action on the case, indebitatus assumsit, for work done, &c. There was evidencegiven of work done, and of the sale of a horse, in New Jersey; and also that Ridgeway, while in prison for debt, in that state, having petitioned for relief, under the insolvent law of that state, gave in a debt due by him, on an unsettled account, to John Mullen. This was in February, 1786, and the action was brought to March term, 1793. Ridgeway was discharged under the insolvent law; and, soon after, left the state of New-Jersey, and came into this country. The plaintiff continues to live in New-Jersey.</p> <p>relied on the plea of the statute of limitations, and stated that every man must recover, according to the laws of the country where he sues.</p> <p>relied on the exception, which, he contended, applied to persons going out of the state, to reside.</p>

THIS was an indictment for the murder of John Weston. On the 5th November, 1795, there was a wedding at Weston’s house. The prisoners went there without invitation (except as to one of them). Weston, who seems to have entertained some suspicions of them, told them, they were welcome, if they behaved themselves well.—Nothing improper appeared till the evening, when the company were dancing in an out-house.

<p>See act of Assembly, 13th April, 1782.</p> <p>1 St. L. 838.</p> <p>2 St. L. 55.</p> <p>2 St. L. 207.</p> <p>1 St. L. 839, 840, 841.</p> <p> 2 St. L. 207. </p>

<p>THIS was an indictment against one of the grand jurors (on the presentment of the rest) for that he, being sworn, &c. “not regarding his oath, nor the good of the county, and the office of a juror, but holding the same in contempt, on 22d December, 1795, during the sitting of the grand-jury, on business given them in charge, did misbehave himself in the office of a juror, and abuse the trust put in him, by intoxicating himself with strong liquor, and disqualifying himself for the discharge of the office of a juror.”</p> <p>The foreman and others of the grand-jury proved the intoxication in a very high degree, during the sitting of the grand-jury. He slept by the fire, and could not be roused to do his duty, or answer questions.</p>

<p>INDEBITATUS assumsit for goods, wares, and merchandizes, delivered to William Sutherland and William M'Donald, on a promise by both, and by each, with an averment, that neither had paid.</p> <p>Proof was made of the book-entries, and of declarations by Sutherland of a partnership between him and M'Donald, and that it has been, and is, usual with traders, to have and give interest on book-accounts, after six months.</p> <p>produced a receipt, dated at Chambersburgh, from Purviance to Sutherland, for ginseng, at a certain price, or at the Philadelphia price, if it was higher. Hence Mr. Woods inferred, that there was then no partnership. He produced also another receipt to William Sutherland and William M‘Donald, for otter skins and cash.</p> <p>We have no notice of the defalcation. The receipt is a private transaction. This suit is brought on a partnership account.</p>

EJECTMENT for 209¼ acres of land, on a lease dated 2d January, 1785.

IN ejectment for land in Pitt township, the plaintiff produced a location, No. 3201, dated 9th May, 1769, in name of Robert Mitchel, for three hundred acres, adjoining John Donne, on the road from the Bullock-Pens, to Braddock’s-Fields; and showed also the location in the name of John Dunn, No. 3115, dated 20th April, 1769, for three hundred acres, at a place commonly called the Bullock-pens, at the Nine-mile run, on general Braddock’s road, adjoining lands claimed by John…

<p>IN September, 1793, on a warrant from a justice of the peace, on a judgment against one Wright, the constable had a horse delivered to him in execution by Wright. Cheney becoming security for the safe keeping and delivery of the horse, the constable left him in possession of Wright, till he should be demanded for sale, which, it was expected would be in about three weeks. In the mean time, Wright paying part of the debt, the plaintiff stayed the sale; and Wright, in the presence of Cheney, who made no objection, delivered the same horse, then in the inclosure of Cheney, who lived on Wright’s plantation, to Mulholm, to indemnify him against a debt for which he was security for Wright. In the end of February, 1794, the constable, being directed by the justice to make sale, called on Wright for the horse, who did not deliver him, but pretended he had paid the debt. At the March court in Pittsburgh, the constable called on Cheney for the horse. Cheney pointed out the horse as a boy was leading him to water; and took him by the halter, and delivered him to the constable.</p> <p>Mulholm brought replevin for the horse. And now a motion was made to quash this replevin, on the ground, that it was brought for property taken in execution.</p> <p>Replevin, at common law, lay only for goods taken by way of distress for rent. It certainly lies not for goods taken in execution; for that would render the process of law void; and there would be, in the language of Hudibras, “No end to the everlasting suit.” Even in the case of a third persons goods, taken in execution, in order to prevent collusion to defeat executions, trespass, and not replevin, must be brought.</p> <p>Our proceedings in replevin, are founded on our act of assembly.</p> <p>An act of assembly has declared all writs of replevin issued for any owner of goods taken in execution, or by distress, by any sheriff, county lieutenant, constable, or collector of public taxes, to be irregular, erroneous, and void; and has directed that it shall be quashed; and that the court shall award treble costs to the defendant, and may order an attachment against the clerk who knowingly made out, the writ. This must extend to third persons, for, as to parties to the execution, the law was unnecessary, for the common law made such replevin irregular. This act must mean something more. It appears from the journals of the assembly, that it was the intention of the legislature to prevent replevins by third persons, for goods taken in execution. For, when the first section was under consideration; a motion was made to restrain the prohibition to parties to the execution, by adding, after the words “owner of goods taken in execution or by distress,” the following words, “being the defendant in the action, or person incurring the fine.” This motion was negatived; and against this negative, there was a solemn protest, “that it left officers at full liberty, under the pretence of executing the laws, greatly to oppress the people; left their property very insecure; and was highly dangerous to their rights and liberties.”</p> <p>It is better, if property of a third person be found in the possession of the person against whom the execution is, that he who gave the trust suffer, than that, by collusion, the process of law be defeated.</p> <p>I will not contend, that, if the property of a third person were taken in execution by a sheriff or constable, the owner could bring a replevin against the sheriff or constable, while the property was in the possession of the officer, but that he could against the vendee of the officer.</p> <p>The affidavits shew, that this horse is not to be considered as a horse taken in execution; but as taken by a private individual, from a bona fide transferree and possessor. The execution was against Wright. The horse was left in the custody of Wright. Cheney was security to the constable, that Wright would deliver the horse to him. The lien of the execution on the horse was then dissolved; and the constable could look only to the security. The sale of the horse to Mulholm, by Wright, in the presence of Cheney, is to be considered as the sale of the constable; for it is the sale of his bailee. This is not a horse taken in execution; the lien was gone. It would be dishonest, to suffer an innocent purchaser to be defrauded. The return day of the execution was past. Cheney was no constable, and did not take the horse as a constable. It is not against a constable that the suit is brought. This is a proceeding for a penalty of treble costs.</p> <p>The court took time to consider, and next term delivered their opinion.</p>

THIS was an ejectment for 300 acres of land, on Campbell's run, Donegal township. The plaintiff shewed a location No. 3048, dated 13th April, 1769, in the name of Michael Coffman, for three hundred acres on the south branch of the Four Mile run, bounded, on the south, by the claim of Philemon Askins; on the east, by the claim of Thomas Pitton; and, on the north, by the claim of Thomas Campbell.

<p>THE case on a writ of partition was thus .—Paul Larsh was seized in fee of an estate in Fayette county. By his first wife, he had issue Charles, the plaintiff. By his second and surviving wife, he had issue Hanna, the defendant. He made his will, on 17th November, 1792, devising one third of his land to his wife, during her widowhood; one third to his son Charles, in fee-simple; and one third to his daughter Hannah, in fee-simple; and his wife’s third, after her death or marriage, to them also in fee-simple, to be equally divided between them: provided also, that, if he should have more children, they should be equal sharers, notwithstanding the former bequeathments. He died 11th April, 1793. In August, 1793, John Larsh, a posthumous son, was born, who died in August, 1794, during the widow-hood of his mother.</p> <p>On this case, the following questions were submitted to the opinion of the president.</p> <p>1. Whether the estate devised was in joint-tenancy, or in common?</p> <p>2. If the former, will not the share of John be equally divided between Charles and Hannah, as survivors? If the latter, does not such share vest exclusively in Hannah?</p> <p>In a will, where the intention is plain, it will control the legal operation of the words.</p> <p>A devise of lands to a son, when he arrives at the age of twenty-one years, to hold to him, his heirs and assigns forever, is a vested devise; and if, after the death of his father, the son die under age, intestate, unmarried, and without issue, his mother surviving, the estate devised shall not go to his eldest brother, as heir at common law, but be equally distributed among his brothers and sisters.</p> <p>The act of 23d March, 1764, directs, that the estate of children dying intestate, in their minority, unmarried and without issue, shall be equally divided among the surviving children. This obviates any objection, derived from John the deceased child’s being born of a second wife; for it embraces all the surviving children, more especially, when the estate (as in the present case) is derived from one common ancestor.</p> <p>The posthumous son of the testator in the case stated was particularly provided for in the will; and became entitled to one-third of the land by purchase as devisee. The act of assembly entitles a posthumous child, not provided for by will, to such part of, the estate as if the father had died intestate.</p> <p>John Larsh became seized of an estate of inheritance in the land, subject to the common rules of descent.—Charles and Hannah are clearly several devisees, and not joint tenants; for no benefit of survivorship is mentioned, and the words "to be equally divided between them,” imply a tenancy in common, and relate to the whole estate. Joint tenancy is not favoured in the law: The posthumous son was to take in the same manner; and whatever may be reasonable, or however the testator may have intended, his intention can be looked for only in the will. Any intention not found there cannot be presumed. If any such intention could be presumed, it would be in favour of the youngest and most helpless.</p> <p>If John Larsh had a vested estate, subject to the common rules of inheritance, it must go to his sister Hannah, as heir at law of the whole blood.</p>

INDEBITATUS assumsit for 96 dollars and 12 cents, being arrearages of duties on two stills owned and used for the distillation of whiskey, in the year commencing with the 1st July, 1793, and ending with the 30th June, 1794, and, in consideration of this, laying a promise on 28th November, 1794, to pay those arrearages.

<p>AN inquisition of forcible entry and detainer was removed by certiorari, and tried at this term.-The The entry was laid on 8th April, 1796, into 371½ acres of land in Pitt township, in the possession of William Todd. The land is on the west side of the Allegheny river.</p> <p>On the 15th March, 1793, William Todd had, under the law of the 3d of April, 1792, obtained a warrant for 300 acres of land; and, on the 15th of April, 1796, had a survey of 371½ acres made on it. In May, 1793, he had a small cabbin built on it, ten feet long, and eight feet wide, not covered, and without a door; and he deadened about three quarters of an acre. In October, 1795, he built another cabbin, about one half or three quarters of a mile from the first, fourteen feet long and twelve feet wide, covered with slabs, but without a door; and and he deadened about half an acre. This was the evidence of possession by William Todd. In the fall of 1795 or beginning of 1796, Thomas Lemmon came on this land, to make a settlement for himself, in the terms of the act of assembly, lived some time in the last built cabbin of William Todd, and, afterwards, built one for himself, within Todd's line, and about three perches from the last mentioned cabbin.</p> <p>The evidence of the force was that Lemmon stood in the the opening of his shed or cabbin, with his gun, and refused to go off unless he were forced off.</p> <p>The survey under the warrant was a complete possession of the land. The circumstances of the Indian war rendering it impossible with safety to maintain that possession, the act of 3d April, 1792, protects his possession, as if he had asually maintained it; and renders every intrusion unlawful.-Though the two years after the warrant were expired before any settlement was made, the Indian war is an apology, and there will be two years given after the war. It is a matter of great importance to determine whether, in case of a forfeiture of a claim under a warrant, for default of settlement in two years, the state only should take advantage by issuing a new warrant; or whether any individual can take on him to make an entry, and proceed to improve and settle.</p>

THIS was an action of debt for 2000l. the penalty on an article of agreement for the purchase of a trait of land, sold by Spencer to Tisue, for 750l. Of this price, it was admitted, that Tisue should have credit for 30l. 0s. 6d. paid by him for goods bought by Spencer, and also for the half of 78 dollars and 27 cents, the amount of excise duty on stills sold with the land and, as to the other half of this duty, it was left to an amicable adjustment on circumstances.

<p>MYERS and one Pratt were suspected of being concerned, with several others, in horse-stealing and burglary. Myers was tried now for stealing a horse. It was proved, that he sold the horse in Maryland for 40 dollars, and the owner valued him at 80 dollars.-Myers and Pratt were both in jail, on a charge of burglary. Myers told the owner, that he bought the horse from Pratt. Pratt was not then present, but, afterwards, when asked by the owner, said, he never sold or gave a horse to Myers. At another time, Pratt said, he had given Myers a horse, which he had bought from a man whom he did not know. And, on the trial, he swore this, and that he had sold him to Myers for 30 dollars. Declarations of Myers were proved, that he gave 12 dollars to Pratt for the horse.</p> <p>Pratt was committed to answer for stealing this horse.</p> <p>The evidence, at most amounts only to proof of receiving stolen goods, knowing them to be stolen; and there can be no conviction on this indictment.</p> <p>Pratt and Myers were consederates in this offence.</p>

<p>THIS was an action of indebitatus assumsit, for work done, in digging a mill-race. The defence was, that the work was unskilfully done, contrary to the directions of the employer, much to his injury, and unfinished in depth. The plaintiff contended, that when a mill-race was to be dug any certain depth, in declining ground, its depth is to be measured by laying a board across the race, and measuring its depth from the middle of its width.</p>

ASSUMSIT, on an undertaking, in the sale of a horse, that the horse was sound, with an averment, that he was unsound of the yellow-water, and thereof died. There was another count of indebitatus assumsit, for money had and received. There was evidence on both sides.

<p>DEBT on a bond of 300l. dated 12th April, 1790, conditioned for the payment of 30l. with legal interest for the same, on 1st Aprils 1795, assigned 12th March, 1794; and on another bond of the same date, for the payment of 30l. on 1st April, 1796, with legal interest on the same, also assigned 12th March, 1794.</p> <p>offered to prove, that the agreement was, that interest should not be paid from the date, but from default of payment on the day prescribed. And he observed, that the obligation is not to pay the money with interest from the date, but with legal interest far the same. This is inserted ignorantly and without necessity, as we sometimes see inserted, with interest from the time of payment, if not then paid.</p> <p>Armstrong objected to this testimony, as contradicting a deed, by parole testimony.</p> <p>declined any further argument, and, by consent, there was a verdict and judgment for the plaintiff.</p>

<p>1 St. L. 540, 541.</p> <p> Ib. 542. </p>

IN an action in partition brought in the Common Pleas of Chester county, and removed into the Supreme court, on a case stated, it was submitted to the Supreme court to determine, whether Alexander M‘Pherson and Robert M'Pherson were tenants in common or joint tenants, under the will of John M'Pherson. If they were joint tenants, there was to be judgment for the defendant; if they were tenants in common, there was to be judgment for the plaintiffs.

<p>3 St. L. 209.</p> <p>1 Hawk. 294.</p> <p> 1 Hawk. 274, 293 4. </p> <p>Note.—There was another indictment, of a similar nature, against David Gilliland, and Barnabas Gilliland, for assaulting Thomas M'Connel, breaking open his dwelling house, throwing out his goods, and throwing down his house. M'Connel claimed under a warrant. B. Gilliland claimed by settlement. The jury found David Gilliland guilty.</p>

<p>3 St. L. 209.</p> <p>2 S. L. 488.</p> <p>3 St. L. 212.</p> <p>3 St. L. 210.</p>

EJECTMENT for 400 acres of land an Watson’s run. This was for land west of the Allegheny river, and the claim on both sides was, as actual settlers, under the law of 3d April, 1792.

<p>CASE for enticing away and harbouring a servant boy.—</p> <p>offered an indenture signed by the plaintiff, purporting to be a binding of a minor boy, by his guardian, to the plaintiff.</p> <p>objected, because it was signed only by the plaintiff, and not by the guardian.</p> <p>Young. We will prove, that an exact counterpart of this was executed by the guardian.</p>

AN action of debt on a bond of 82l. proclamation money,of New-Jersey, dated 21st November, 1775, conditioned for the payment of 41l. 5s. 4d. with interest from the date, was brought to December term, 1793. There was an indorsement, without date of a credit of 7l. light money.

THIS was an action of debt, for the duty on two stills had, owned, and employed by the defendant, on 30th June, 1795, for one year then past.

<p>THE plaintiff declared for 50l. as a penalty for marrying his daughter, without having a certificate of his consent.</p>

<p>Note.—Three other cases, one in the court of Common Pleas of Washington county, another in Fayette county, and the third in Allegheny county, have since been tried, and decided on the same principle, of giving, in damages, the increased value of the grain, with interest from the time of delivery.</p>

<p>Co. Lit. 96. 1 Wils. 107. 2 Str. 1238.</p>

<p>1 Fonbl. 151-3.</p>

CREACRAFT, having married the widow of Jabez Baldwin, sued for her dower of one third of 399 acres of land. A satisfaction and acceptance under the will was set up as a bar to this claim.

THIS was an indictment for a forcible Entry, on 28th February last, on a tract of land in possession of George Konkle Konkle had bought an old improvement, where there were trees deadened, and potatoes planted. He built a cabbin partly of logs lying cut, and partly of logs cut by him at that time. The Leaches had deadened some trees, and cleared some ground on this land. They threw down Konkle's cabbin, and built another with the legs of it in another place.

<p>EJECTMENT for 230 acres of land, of July term, 1797.</p> <p>On 3d October, 1786, James Fitzpatrick conveyed in fee simple an improvement and 230 acres of land (the premises in question) to David Enoch ; who gave a bond, of the same date, to Fitzpatrick, in 252l. 8s. conditioned, that, if Fitzpatrick pay or tender 126l. 4s. on or before 1st March then next ensuing, Enoch will reconvey the tract of land that day conveyed. On 1st June, 1788, this bond was assigned to Daniel Dimond, who had bought the land from Fitzpatrick for 200l. as appeared by an article of the sale, dated 29th December, 1786, by which he bound himself to pay 126l. on the 1st March then next ensuing. About the year 1789 or 1790, Dimond went to Enoch, and proposed to take or give satisfaction. Enoch declined both. In spring, 1797, Dimond tendered upwards of 530 dollars to Enoch, who refused to receive it.</p> <p>Fitzpatrick had bought the land from one Bozier ; and a bond of Fitzpatrick to Bozier, for the payment of 126l. 4s. with interest due on it, part or all (it did not appear which) of the consideration money, had been transferred to Enoch. Fitzpatrick, not being able to pay the money, executed the conveyance, dated 3d October, 1786, to Enoch, and took from him the bond of that date. As good or better land, in that part of the country, has been sold since, at twelve shillings and sixpence per acre. Enoch was not to take possession of the land, till after default of payment by Fitzpatrick, on 1st March, 1787. A few days after that, he had the land surveyed on a warrant which he purchased for it. Fitzpatrick was present and made no opposition, and did not say, that he had transferred his interest in the land. Enoch has continued in possession, and made improvements.</p> <p>There was no evidence of any specific conversation or agreement, between Enoch and Fitzpatrick, at the time the conveyance was made in October, 1786. One witness said, he understood it as a mortgage ; another said, he understood, that, if Fitzpatrick paid the money, at the time mentioned in the bond, the land was to be reconveyed to him. But, if he did not, that Enoch would hold it by the conveyance.</p> <p>offered to shew a warrant for the land, in the name of another person, at the time that the conveyance and bond were executed in October, 1786 ; and, urging that a defendant may claim under any title, stated, that, here, there was an adverse title, at the time, and that Fitzpatrick imposed on Enoch, and gave him a security, to which he had no right.</p> <p>Campbell objected to this, that the defendant having come into possession under a deed which he accepted from the plaintiff ; cannot now dispute the plaintiff’s title. In an ejectment on a sheriff’s sale, the debtor cannot set up a title from another person. It was so determined at Nisi Prius, in Allegheny county, last May, in the case of Baldwin v. Bently.</p> <p>President. If a man take a lease from another, can he set up an adverse title, to bar an ejectment, or a claim for rent, by the lessor ? We reject the testimony ; but, if insisted on, the point may be reserved, though I see no difficulty in it.</p> <p>Simonson. A covenant for the benefit of the covenantor, must be strictly complied with. All covenants must be taken according to the intent of the parties.</p> <p>This is a mortgage. And, the money, with interest, having been tendered, the title of the mortgage is extinguished.</p>

<p>3 St. L. 209.</p> <p> 3 St. L. 488. </p>

BROWERS was a German catholic priest, who after a residence in a Danish West-India island, had, a few years before his death removed… Held: by the lord chancellor, that the trustee was but an instrument, to convey the legacy to those for whose use it was intended, and that, notwithstanding his death, the charity itself, which was the substance and reason of the devise, is still subsisting, and may be answered as fully, by the aid and directions of the court of Chancery,…

<p>CASE, on a contract, made 11th February, 1797, of sale of a plantation and mill, for falsely, fraudulently, and deceitfully affirming, that the mill-dam was found, sufficient, and founded on a rock ; trusting to which the plaintiff purchased the plantation and millfor 1500l. whereas the mill-dam was then unfound, insufficient, not founded on a rock, and great part of it without foundation.</p> <p>Of the price 600l. Was paid at the time of the contract, and bonds given for the rest, in yearly payments, There was no article of the sale. But on the bond last due, payable in the year 1800, the following writing was indorsed, signed and sealed by the parties.</p> <p>“ P. S.—This obligation is subject to the following stipulation, viz. that, if the mill-dam, for the payment of which this bond is a part, should happen to break, by reason of a bad foundation only, a deduction of the sum of one hundred pounds is agreed upon in lieu thereof, in favour of said Work. It is also agreed, that the said Work is to use all lawful endeavours and costs, in order to prevent any breach about said dam, by keeping it sufficiently dirtied, and free from such symptoms as might occasion the same.”</p> <p>A witness was called to prove the representation, at the time of the contract.</p> <p>objected to parole testimony, as the parties had reduced the agreement to writing, agreed on the risk, and fixed the amount of damages, to be deducted out of the last bond, if, before it became due, the dam should break. He can get no other damages, but the sum so stipulated for.</p> <p>The objection is made on a petitio principii. This indorsement is not a note of the contract. It is a sort of postscript to a bond for the payment of the price, providing for a compensation for a certain contingency, not relating to the essential part of the contract, that the dam was founded on a rock. In cases like this, as on policies of insurance, parole evidence of want of good faith is constantly admitted, as evidence of facts, within the knowledge of the insured, increasing the risk.</p> <p>Contracts will not be inforced, where there is ignorance or error, in fact or in law ; and will be set aside for fraud. There could be no relief against fraud, unless parole evidence of it were admitted.</p> <p>President. If this writing had been a statement of the contract, there would have been strong reasons for rejecting parole testimony of the representation ; as, when parties reduce their conversations to writing, that alone ought to be considered as the deliberate and con clusive agreement. This writing does not clearly seem to be a statement of the contract. The action is for a fraud in misrepresenting a thing within the knowledge of the seller, and not of the buyer ; in representing the dam as founded on a rock, when it was not. The foundation might not be bad, though not founded on a rock. The writing is to secure a certain compensation, on the contingency of the dam breaking within three years, by reason of a bad foundation only. The dam might not break within that time, though not founded on a rock ; and yet might be much less valuable to the buyer, than if founded on a rock.</p> <p>Parole evidence of a contract may be inadmissible, when a contract is reduced to writing ; and yet parole evidence of fraud may be given, of what cannot appear in the writing, viz. the variance of the thing sold from the representation made of it in the contract.</p> <p>The principal difficulty in this case is, to know whether the writing means the same thing by a bad foundation, that the declaration means by not being founded on a rock ; and whether providing compensation for the dam breaking, by reason of a bad foundation, is not waving all other objections to the dam.</p> <p>Upon the whole, we think it best, to admit the testimony, and reserve the point.</p> <p>It was then proved, that, at the time of the sale, Work had suspicions, that the dam was infufficient, and objected to it, for want of an apron ; that Grier said, it was as good a dam as any on the creek, that there was no occasion for an apron, for it was founded on a rock, and that was better than an apron. It had been founded on a rock ; but the fall of the water over the dam had broken through the rock, for a considerable distance in the middle of the creek, and occasioned a cavity, through which a considerable part of the stones in the dam had fallen and been waited away, so that part of the dam was hollow. It had not however given way, and it was uncertain whether it would, merely on that account. That would depend on casualties, as ice lodging on the breast, &c. This state of the dam was not generally known, till in the summer after the sale ; but there was some reason to believe, that it was in this state, at the time of the sale, and probably that Grier knew it. The dam continued to serve its purpose, and the mill went, when other mills on that creek went.</p> <p>An action lies for cheating by false dice, and for selling one commodity instead another. Fraud or concealment of any material circumstance will be relieved against, notwithstanding a warranty.</p> <p>1. Fraud will not be presumed. You have no evidence, that the dam was not, at the time of the sale, as represented. All the evidence is five or six months after. If there was a misrepresentation, every misrepresentation will not justify the rescinding of a solemn contract. To do this, it must be wilful, and known to the party.</p> <p>2. Here is a written agreement entered into at the time of the sale, for ascertaining the damages, in case the representation should fail. Work had no confidence in the representation of Grier, and relied on this agreement for fixed damages to be obtained at a certain future time.</p> <p>Young. We differ not as to principles of law ; but as to the weight of evidence. The cases read apply not to this. We are not suing for a penalty, nor for rescinding the contract, and recovering back the money paid, but for damages for a misrepresentation which has made Work pay a greater price, than he would have paid, if the dam had been truly described.</p>

<p>THIS was an action of trespass for taking two horses, two cows, and a steer.</p> <p>Moor was a constable, and an execution of a judgment before a justice against Richard Hall, a son of Moses, was put into his hands, Moses had, about two years before, removed, from the plantation on which he formerly lived, to another about sixteen miles distant from it, and left his son Richard, a married man with a family, in possession of his plantation and the cattle in question, together with smith-tools and other property. Moor took the cattle in execution, and sold them for the debt of Richard. Two warrants from the justice, who had given the judgments against Richard Hall, were offered in evidence.</p> <p>objected to them, because they were not directed to any one, but to the constable of ; and because they were dated 12th May, 179 . Moor is not constable of the township in which Richard Hall lives, where the cattle were taken.</p> <p>The twenty pound law is to be considered as distinct from the other laws giving jurisdiction to justices. The 9th fection says, “upon delivery of an execution to any constable.” These warrants are for debts above 10l. and we can prove, that they were delivered to Elijah Moor, a constable.</p> <p>President. No answer has been given to the objection. We see no authority given to Elijah Moor, The omission is too gross to be overlooked.</p> <p>moved for a nonsuit. This action is not maintainable. The plaintiff was not in possession, and possession is necessary to support trespass. The plaintiff ought to have brought Trover, when he could have recovered, on proving property in himself, and convertion by the defendant. This is decided in the case of Ward v. Macauley. There the plaintiff had leased his house ready furnished to lord Mountsort. On an execution against the tenant, the sheriff seized part of the furniture, though he had notice that it was the property of the landlord Ward. For this, trespass was brought. At the trial lord Kenyon thought, the plaintiff should have brought trover. A verdict however was taken for the value of the goods, with leave to move for a nonsuit. On a motion for this purpose, lord Kenyon said, “ The distinction between the actions of trespass and trover is well settled ; the former is founded on possession, the latter on property.—Here the plaintiff had no possession ; his remedy was by an action of trover, founded on his property in the goods taken.” The rule for a nonsuit was made absolute. The case before this court is so like that case, that I cannot doubt, that a nonsuit will be ordered here.</p> <p>It may be said that, in that case, there was a lease for a limited time. In this case there is a surrender of the possession similar to that. In that case, there was a lease, which fixed the terms on which the possession was given. In this, none but the father and the son knew the terms, and a deceit was imposed on all others.</p> <p>Trespass is not maintainable where possession is in another by delivery ; except in cases of necessity that there may be a remedy for a right. A rector may maintain trespass for taking tythes set out, for possession is construed to follow separation. So may a carrier from principles of policy, to protect commerce in a fluctuating state. Here, there is no necessity for a constructive possession in the father : the relation subsisting between him and his son will rather couple a right with the son’s possession ; and the father may have remedy against the son. And, having parted with the possession, he is excluded from the remedy of an action of trespass which is given for a violation of possession ; and must recur to trover, by which redress is given for a violation of right. Property alone will not alone support trespass. If trees be cut by a stranger on land leased, the owner must bring trover, and the tenant trespass.</p> <p>The case of Ward and Macauley differs from this case. There, the plaintiff had parted with the ownership of his property, for a limited time ; and the tenant had an interest, which might be seised by his creditors. Here, there was no contract for any time ; and the plaintiff might take them when he pleased. Richard Hall had no interest to be taken. He was a mere agent, and had only a care or oversight of the property, as a butler or servant. Trespass lies for breaking open a box, delivered to keep, and taking goods out of it ; for wherever a man has neither a general nor a special property, and he converts goods, trespass will lie.</p> <p>President. It is contended that Moses Hall cannot support trespass, because he had not possession of the property taken, at the time of the taking, and possession being essential in trespass, the plaintiff must be non-suited ; and may bring trover, which can be supported on property alone without possession.</p> <p>On the other hand, it is contended, that property alone without possession will support trespass ; and that, (if it were otherwise) in this case, the possession of the son is possession of the father, for the son was but his agent.</p> <p>There is a material difference between trespass and trover. Trover waves the trespass in taking, admits the possession to have been lawfully gotten, and proceeds to recover damages only for the unlawful conversion. In trespass, a jury may also give damages for the taking.</p> <p>The motives are peculiarly strong to support this distinction, in favour of an officer compellable to take the goods of a certain person, when property ought to be presumed from possession, and the taking to be viewed in the most favourable light, and, if possible, not as a trespass.</p> <p>However, as it is to be wished, that the dispute between these parties may be soon terminated, and there are circumstances, which may induce the jury to find for the defendant ; we will not direct a nonsuit, but give the defendant leave to move for a nonsuit after the verdict.</p> <p>contended, that possession was evidence of property, or of a fradulent intention to deceive creditors, which would be equivalent. If one taking goods in execution, leave them in the possession of the owner, a subsequent execution will take and hold them.</p> <p>This is not an action against a constable, but against Elijah Moor, who, though a constable, has not been able to shew any authority for taking the goods in question. There was no collusion nor deception of creditors : all the country knew the property to be in Moses Hall.</p>

<p>1St. L. 838. 2 St. L. 55.</p>

<p>ON a writ de homine replegiando, a certificate of the registration of the plaintiff as a slave, on 19th December, 1782, was produced, under seal, from the clerk of the sessions of Washington county.</p> <p>offered evidence, that Hull, the master who then owned him, had confessed, that Giles was not registered, till after January, 1783. The act of 13th April, 1782, requires a registration before January, 1783.</p> <p>Proof of this kind would destroy the record : and this cannot be done by parole proof.</p> <p>Brackenridge. This act has been construed liberally in favour of the master ; and, considering the act of registering as a ministerial act, though informal, it has been held sufficient. But it will also be construed liberally in favour of liberty, and considered as a ministerial and not a judicial act ; it may be impugned by proof of fraud. It is not a record against which nothing can be averred ; but resembles the certificate of recording a deed.</p> <p>President. Proof of fraud in the entry of Giles is proper. But, as there may be a doubt, whether this proof, as against Meeks, the present master, may be made by declarations of Hull, we will admit the testimony, reserving this point.</p> <p>It was then proved, that, after the year 1782, and perhaps in 1784, Hull, being asked whether he had recorded Giles, said no ; that, at a certain time after the year 1782, he said, he was going to Washington to have his Negro recorded, meaning Giles ; and that, when he had returned, he said, he had got it done ; and that perhaps in 1784, having been admonished to have his Negro recorded, he said to Meeks, (the defendant) who also had Negroes, that one or other of them must go to Washington, and have their slaves recorded.</p> <p>The defendant produced a witness, who swore, that in 1783, he asked Hull, whether he had recorded his Negro, and he said, he would be very sorry to leave such property in risk ; and, that he and Joshua Meeks both had their Negroes recorded.</p> <p>The proof for the plaintiff is too inaccurate as to distant dates, to be received to contradict an official act and certificate ; especially when that proof is opposed by contradictory proof.—Hull was under no obligation to give true answers to every impertinent question.</p> <p>The entry is impugned by direct declarations with precise dates, ascertained by circumstances. The proof for the defendant opposes not, but confirms, that given for the plaintiff. Hull does not say, that he recorded Giles ; but, by evading a direct answer, seems to admit, that he had not. Notice is also brought home to Meeks, and he is, therefore a mala fide purchaser.</p>

THESE men lived on the frontier of Westmoreland, near Lycoming county. Becomb and Reading went, as they said, to trade with two Indians, who had a hunting camp on the frontier of Lycoming, near Westmoreland county. They had with them half a peck of salt to buy deerskin for moccasins.

THIS was an Ejectment for a messuage and 300 acres of land, in Franklin township, brought to March term, 1798. The plaintiff shewed a warrant, dated 8th January, 1773, for 100 acres of land, on a branch of Turtle-creek, on the north side of general Forbes’s old road, and on the south side of the path leading to Plumb-creek; including a white-oak, marked J. W. standing on the west side of the bottom of said branch; in Fort-Pitt township, in the county of Westmoreland.