Volume 1 — Binney's Pennsylvania Reports

<p>CASE stated, to be considered in the nature of a special verdict.</p> <p>"7oseph Galloway intermarried with Grace Growdon, by "whom he had issue born alive (and still remaining alive) be- " fore the death of Lawrence Growdon father ~f the said Grace; "which said Lawrence being seised in fee simple of the premi"ses in the declaration mentioned, by his testament and last " will duly executed devised the same with other real estate "to the said Grace Galloway and a certain Elizabeth Nichol"son his two daughters, in fee. Thomas Nicholson the husband "of the said Elizabeth, and Joseph Galloway and Grace his "wife, in due form of law made partition by writ of the premi- " ses to them devised as aforesaid, in which said partition the "premises in the declaration mentioned were allotted with other "real estate to the said Grace Galloway, and the said Joseph Gal"loway in right of the said Grace took the exclusive possessioii "thereof under the said allotment on the 24th of Dccember~ "A. D. 17~3. The said Joseph Galloway afterwards by aet of "Assembly passed on the 6th of March it 778 was required to "surrender himself under pain of being attainted of high trea"son. The said Joseph Gallor.r!ay did ~not surrender himself 44 accordingly, and thereupon, became and stood attainted of ' 44 high treason to all intents and purposes and his estate for-44 feited to the commonwealth, the said Grace Galloway being in 44 full life. The said premises were afterwards seized and sold “ by the agents for forfeited estates, and the same conveyed to 44 those under whom the defendants hold, by the cornmon44 wealth. The said Joseph Galloway so being attainted depart-44 ed out of the United States into parts beyond sea and there 44 continues in full life. The said Grace Gallozvay continued in 44 the United States, and afterwards, to wit on the 6th February 44 1782, died seised in fee simple of the premises in the declara44 tion mentioned, having first, to wit on the 20th of December 44 1781, duly made and published her last will in writing where-44 by she devised the same to Owen Jones and others, the sur- “ vivors of whom are the lessors of the plaintiff. The plaintiff 44 entered and was ousted by the defendant. Upon these facts the 44 question submitted to the court is whether the law be with the 44 plaintiff. If it is, judgment to be entered for him with six 44 pence damages and six pence costs; if it is not, judgment to 44 be entered for the defendant.”</p> <p>The point to which the arguments were directed, was whether Joseph Galloway, who was tenant by the curtesy initiate of the premises, had such an estate therein as was forfeited to the commonwealth upon his attainder by act of Assembly passed the 6th March 1778; the 5th section of which is as follows: 44 All and every the lands, tenements, hereditaments, debts or 44 sums of money, or goods or chattels whatsoever, and gene-44 rally the estates real and personal of what nature or kind 44 soever they be, within this state, whereof the aforesaid Joseph 44 Galloway be. shall have been possessed bj interested in, or en~ 44 titled unto, oñ the 4th day of July 1776, or at any time after-44 wards in 'their own right oi to their use, Or Which any other 44 person or persons shall have been possessed of interested in 44 or entitled unto to the use of or in trust for them or any of 44 them, shall according to the respective estates and interests 44 which the persons aforesaid or any in trust for them or any 44 of them shall have had therein, stand and be forfeited to this 44 state.” 1 St. Laws 752. The case therefore embraced not only the proposition whether upon general principles an estate of tenant by the curtesy initiate is forfeited to the commonwealth by an attainder for treason, but also whether it was not made forfeitable even against general principles, by this act of assembly.</p>

THISwas an action of debt on a bond, brought in the Cornmon Pleas of Dauphin county to November term 1792; and the plea was payment, with leave to give in evidence ~paym~nt a foreign attachment.

<p>loss. It seems The entry of a check as cash, made by a Bank iii the private bank book of the holder, i~ equivalent to payments and if the check isa forgery, of which the holder was ignorant, the Bank must support the that the acceptor of a forged bill is bound to pay it, not upon the principle that his acceptance has given a credit to the bill, but because it is his duty to know the drawer’s hand writing- which he is precluded from disputing. If a forged check is credited as cash in the holder’s bank book, and afterwards upon being informed of the forgery, and under a mistake of his rights he agree» that if the check i* really a forgery it is no deposit, he is not boundhv the agrermen'.</p>

AFTER the sealing up of their verdict in this case by the jury~ but before the delivery of it in court, E. Tilghman for the defendants tendered a bill of exceptions to the charge of the court delivered by the chicfjustice; and the question was whether it was in time.

r I 'HE defendant underwrote a policy of insurance on the A schooner Eagle, upon a voyage at and from Edenton, North Carolina, to Cape Nicola Mole. The vessel was captured as she was sailing from Philadelphia to Capé Nicola Piole, car-tied into Port de Paix and condemned.

^ behalf of the plaintiff a motion was made by Rawle to vJ' strike off the rule of reference, which had been made in this cause, upon the ground that the original defendant was dead, that the rule had been assented to by the plaintiff with the expectation that from a personal understanding with the defendant he would derive certain accommodations, which his administrators who were now parties to the action could not give, and that the rule being entered into between the…

EJECTMENT for a house and lot in the district of Southwark. John Snyder the lessor of the plaintiff obtained a judgment against Peter Hofman in this court at September term 1798 for 305 dolls, and 58 cts. and costs; and by a ft. fa. he took in execution the premises in question.

IN this cause, which was an action of trespass for mesne pro. fits, a verdict was found for the plaintiff for 200 dolls, and the prothonotary taxed the costs of witnesses at 162 dolls. From this bill the defendant appealed.

THIS was an action of covenant upon a policy of insurance by the defendants for 1000 dollars, on Goods by the sloop Rebecca, at and from her last port in ~ainaica to Phi lade~hia, with liberty to touch at the Mole. The plaintiffs declared for a total loss by capture; and at the trial before Shippen C. J. and Smith J. at Nisi Prius in March 1802, the following facts were in evidence.

THIS eiectment was referred under a rule of court; and the r-referees awarded that the plaintiffs should recover the strip of land in controversy, with 6d. damages and 6d. costs. Exceptions to the report were filed by the defendant as follow's: 1.

<p>A rule to shew cause of action is well served upon the plaintiff’s attorney.</p>

IN this case an execution was levied upon the real estate of Webb, consisting of three tenements and the lot of ground upon which they were erected. Held: and there had been no apportionment subsequently agreed upon. The property being condemned, the sheriff sold the whole in one body.

<p>An award of costs is good, although the principal sum reported by the referees would not carry costs if found by a jury.</p>

IN this case it was agreed by the counsel to submit a single -i- question to the consideration of the court; namely, whether the plaintiff as administrator &c. could maintain his action against the defendant by virtue of letters of administration granted to him in the state of 1k/ar yland.

HjP’HIS was a scire facias upon a judgment obtained in September 1801, against the defendants as garnishees in a foreign attachment against fames Brown; and the following case was state(i f°r the Court’s opinion: “ On the 19th of August 1793, David Cay and Andrew Clow, w^° then carried on business under the firm of Andrew Clozo ‘‘ and company, indorsed a note drawn by Henry Darrach, u bearing that date for the sum of 852 dolls. 88 cents, which “ note was discounted by the…

IN this cause the following case w~ stated for the opinion of the Court: The legislature of Pennsylvania, by an act passed on the 10th April 1792, entitled ` an act to enable the Governor of the commonwealth to incorporate a company for opening a canal and water communication between the rivers Delaware and Schuylkill, and for other purposes therein mentioned,' appointed David Ritten/thuse and others, commissioners to do and perform the ~everal duties thereinafter mentioned;…

IN this case upon the motion of Hopkinson, founded upon the following affidavits, a rule was granted upon the defendants to shew cause why an information in the nature o a quo warranto should not be… Held: that they might parti44 cipate in said election.

<p>nPHIS cause was tried before Smith and Brackenridge, justices, at Nisi Prius in June 1803. It was an action on the case for a slander uttered by the defendant of and concerning the plaintiff in his business of school-master, “ that he loved li- “ quor,” and “ that he was given to drink,” per quod he lost his scholars. The pleas were not guilty and ju -tification. The evidence of the slander was the testimony of one Samuel Brewster, that on his asking the defendant if Kennedy was given to drink, he answered either “ it is so,” or “ they say it is so.” The counsel of the defendant then offered a witness to prove, in mitigation of damages, that before the publication of the words laid in the declaration, he had told Gregory that the plain tiffruas given to drink. This evidence was objected to, and the judges were divided in opinion upon its admissibility. Smith J. thought it was inadmissible upon the issues then trying, but was willing that the defendant should have the benefit of it, reserving the point. Brackenridge J. thought it admissible in mitigation of damages; but he asked the defendant’s counsel whether, from the case which the plaintiff had made to the jury, they thought their client stood in need of it. The evidence was not heard. The court then charged the jury that the words did not appear to have been spoken maliciously, but to have been used upon an examination of the plaintiff’s character, in which the community was interested. The jury however found a verdict for the plaintiff, one hundred dollars damages.</p> <p>Ingersoll obtained a rule to shew cause why there should not a new on three grounds: 1. That the verdict was against evidence. 2. That it was against the charge of the court. 3. That competent testimony had been overruled. And although it was stated by one of their honours, that the testimony which had been offered was waived after the question put by judge Brackenridge, the argument upon shewing cause turned almost exclusively upon the third ground; a majority of the court in bank being of opinion that the testimony was not waived.</p>

UPON the trial pf this ejectment before Shippen C. J. and Smith j. at a Circuit Court for Bucks in May 1802, the plaintiff shewed a regular title to the premises in question,~ being part of a large patent, in Lawrence Growdon, who by his will devised the residue of his estate, including the lands in controversy, to his two daughters Grace and Elizabeth.

THE defendants in August 1797 became severally bound to the commonwealth before the Chief Justice of this court in a recognisance in 1000 dolls, conditioned for the good behaviour of William C'obbett until the next Oyer and Terminer to be holden by the justices of this court for the city ~nd county d Philadelphia.

In Error. THIS was a certiorari to the Common Pleas of Philadelphia county. The cause originated before a justice of the peace, who gave judgment for Dawson the plaintiff below, upon a warrant of attorney, without issuing either summons or capias. This judgment was affirmed in the Common Pleas, and upon the removal to this court the proceeding without summons or capias was assigned for error.

<p>THIS was an action of replevin for two hogsheads of coffee1 in which the defendant claimed property. It was tried at Nisi Prius in Februar~i 1804, before SHIPPnN C. J. and Si~xTix J. when a verdict was found for the defendant, subject to the opinion of the court upon a case which was in substance this: D'.wson and Watt, merchants at C'ape Franco~s, were the common agent of plaintiff and defendant, and were indebted t~ both at the time hereafter mentiqned, for the proceeds of sundry cargoes consigned to them. B. F. Garrigues the owner of the brig ~ulia addressed her in the latter part of 1801 to D. & W. with a direction to the captain to conform in all respects to their orders. On the 23d Jan. 1802, D. & W~ wrote to the defendant as follows: "This goes by way of Ba1t~mere and is merely to "inform you that we shall ship for your account on board the "brig Julia, Samuel Holt master, sailing for your port on or "about the 1st next month the auantitv of 7000 lbs. coffee “ or thereabouts.* By her we shall write you more fully, and “ remain your assured friends D. and W.* It being your pro- “ portion of the balance of the brig Agnes’ cargo. D. and W.” On the 31st January 1802, the captain having taken on board his cargo for Philadelphia, signed bills of lading for eight hogsheads and nine barrels of coffee marked T E, deliverable to the defendant or his assigns, one of which bills D. and W. left with the captain together with letters for the consignees. The brig was detained until the 4th of February when Cape Francois was burned by the blacks, and property to a great amount in the stores of D. and W. destroyed. On the 10th February D. and W. prevailed upon the captain to deliver up the bills of lading and letters; and with a view to equalize the loss among their different employers, took two hogsheads from the quantity shipped for the defendant, and addressed them to the plaintiff, presenting at the same time bills for the signature of the captain, varied accordingly from the former bills. The captain at first refused to sign, as an alteration had been made in the quantity shipped to his owner, but was 'compelled to it by the assurance of D. and W. that until it was done the brig should not sail. From the 31st January to the 10th February the vessel remained in the harbour under her first bills of lading, her bulk never broken, nor the marks of the hogsheads or barrels in any way altered. On the 4th of March after an embargo the brig-sailed, and on her arrival, the captain being informed by the defendant that according to a letter’from D. and W. the quantity due by the bill of lading last signed fell short of the amount shipped, by two hogsheads, put the property in question on shore, when the defendant got possession. The plaintiff entered and secured the duties upon them, and then brought the present action.</p>

<p>Part of a report of referees may be confirmed, and the residue set aside. But the court cannot strike out a part</p>

<p>A contract for the purchase and sale of lands in Pennsylvania under the Connecticut title is unlawful and coid, although the act of 11th April 1795, neither expressly says so, nor contains any prohibitory clause, but merely inflicts a penalty upon the offender. Such a penalty imolies a prohibition.</p>

<p>In order to reach the estate of a deceased partner, an action for a partnership debt will be sustained against his executor, if the surviving partner be a certificated bankrupt before action brought.</p>

THE plaintiff in this cause recoveredjudgment for a siam less than was requisite to entitle him to costs, and then issued a Ca. sa. upon which the debt, interest, and costs, were levied by the sheriff who paid them over to the persons respectively interested.

<p>THISwas an ejectrnent for a house and lot in the city of Philadelphia; and the following case was therein stated for the opinion of the court, to be considered as ~ special verdict.</p> <p>"On the 17th day of March 1797, John Shields executed a "mortgage of the premises in question to the defendant to "secure a debt of 1207 dolls. 50 cts. On the 20th day of Au"gust 1800 the assignees of Jo/zn Shields, by indorsement on " the mortgage, released the equity of redemption to the defen- " dant. This mortgage was taken in the defendant's name, to "secure a debt due by ~fohn Shields to Thomas Greeves, and for "his use, and the release was executed to the defendant hr the "said Greeves's use." [A supplementary case stated among other things that the debt was by a note purchased in the market for Greeves, which Ha/lowell undertook to secure; that the name of Greeves did not appear in the transaction, nor was it known to Shields; and that the mortgaged premises were put up at public sale at the request of Shields, and bought in by Flallowell, after which Shields's general assignees released.]</p> <p>" After the release was executed, which with the mortgage always remained in the defendant's possession, the defendant "lent Thomas Greeves' his notes, which were discounted at the "bank of Pennsylvania for his the said Thomas Greeves's use, "and which were frequently renewed till the 7th day of August " I 802, when the defendant paid for the said Thomas Greeves "one of those notes amounting to 650 dolls. and on the 2d day "of September following paid another for him of 500 dolls.</p> <p>After Thomas Greeves stopped payment and before the " issuing of a commission of bankruptcy against him, the de"fendant told Greeves that he would keep the estate in question " till he was reimbursed the 1150 dolls., which he had thus "paid for him; but it is admitted that the mortgage and release were not originally executed to the defendant for the purpose " of securing any debt due by Greeves to him, nor was any agreement subsequently made that the defendant should hold "the estate as a security for any money owing by Greeves to “ him. It is also admitted that Greeves received the rents and “ profits of the premises up to the time of his bankruptcy.</p> <p>“ On the--day of December 1802 Greeves was declared a “ bankrupt by the commissioners under a commission lawfully “ issued against him dated the 19th November 1802, and the “commissioners on the 21st December 1802 made a general “ assignment in the usual form to the lessors of the plaintiff, of “ all the estate and effects of the said Thomas Greeves for the “ use of his creditors.</p> <p>“ If upon the above facts the court shall be of opinion that “ the lessors of the plaintiff aré entitled to recover and hold the “ premises in question to be appropriated to the use of the “ creditors of Thomas Greeves generally, then judgment to be “ entered for the plaintiff. But if the court shall be of opinion “ that the premises in question ought to remain as a security in “ the hands of the defendant for the monies due to him by “ Thomas Greeves, and that the lessors of the plaintiff are not “ entitled to recover and hold the same until the said monies “ are reimbursed to the defendant, then judgment to be entered “ for defendant.”</p>

<p>A CAPIAS returnable to September, term 1805 was issued against the defendant, by which he was arrested and held to bail. A declaration was filed de bene esse on the 8th November; and the bail bond was sued to December term, and judgment obtained. Special bail was entered on the 14th February 1806, and on the 20th of the same month the defendant’s attorney filed the following suggestion and plea.</p> <p>“ Defendant suggests that he was at and before the time of “ instituting the above action, and since that time has continued “ to be and still is Consul General of his majesty the king of “ Siveden, in the United States, duly admitted and approved as “ such by the President of the United States. That being such, “ he ought not according to the constitution and law of the “ United States to have been impleaded in the said Supreme u Court, but in the District Court of the United States in and “ for the district of Pennsylvania, or in some other District “ Court of the said United States. And under protestation that “ this court has not jurisdiction, and of right ought not to take “ to itself the cognisance of this case, he pleads non assumpsit “ and payment, with leave &c.” On the 3d March 1806 a rule was obtained by the defendant to shew cause why the proceedings should not be quashed;, and upon the return of the rule it was proved that he had in various instances submitted to suits and executions from this court.</p>

DUPONGEAU upon a former day obtained a rule upon the plaintift to shew cause why there should not be a new trial; and upon the argument, he now offered to the court the same affidavit of the defendant upon which he obtained th~ rule.

THIS action was brought by the deputy surveyor of Bed-ford county, to recover from the defendants the fees due for surveying one hundred, and fifteen tracts of land of four hundred acres each, at the rate of 9 dollars 33 cents the tract; which is the full legal charge, deducting the fee for plot and return, which the plaintiff, in consequence of the defendants’ refusal to pay, had never made.

<p>THIS was an action of debt brought to September term 1800, on a bond given by the defendants to Lloyd and Sparks, bearing date the 20th of May 1797, in the penalty o 2000 dollars, conditioned to pay 1000 dollars on the 20th 0: May 1801,. with lawful interest to be paid annually from th date. The defendants pleaded payment, with leave to give th special matter in evidence; and agreeably to a rule of the cour gave the following notice to the plaintiff: "Please to take no "tice that under the plea of payment in the above action, th~ "defendants mean to give in evidence that the bond on whici ~G the action was brought was giveh on a purchase of a tract a "land containing 2299 acres, more or less, lying in the pateni "of l7iinisink, Ulster county, state of New Thrk, together witl " another adjoining tract. That the said lands were mortgaged "by ~esse Dickerson to the said Lloyd and Sparks, who agreec "on receiving payment of this and three other bonds given al "the same time by the defendants to them on the same account "to exonerate the said lands from the said mortgage. That thc "said Lloyd and Sparks or one of them assured the defendant~ "at the time of giving the said bonds, that the titles to the saic "lands were good, but did not shew them the title deedè and "papers, though then in their possession. That the defend"ants besides paying 1000 dollars to the said Dickerson on ac"count of the said purchase, and 1000 dollars the amount o~ "one of the said bonds, have expended 1000 dollars and more "in improvements. That it since appears that 7esse Dickersoi~ "had no title to the said land first mentioned, which was the "only valuable part of the property so purchased; the other "tract being of very little value, except to the owner of the first "mentioned tract." The replication was non ,golvit.</p> <p>At the trial the defendants went fully into their defence under the notice; they examined witnesses and read depositions as to the matter of title, and to shew that by the defect in Dickerson's title there was a failure of consideratio~i. They alleged fraud and misrepresentation in the plaintiff, and urged them in avoidance of the bond; but did not attempt a set-off of any kind. At the time of action brought, there was due upon the bond only a year’s interest, one year’s interest having been paid, and the" payment indorsed on the bond; whereas at the time of trial the entire principal was due; but it was agreed that the quantum should form no question before the jury. A verdict was given generally for the plaintiff, with liberty to the court to enter the judgment for such sum and in such form as they should think proper; and this was the subject of two different arguments.</p> <p>It was argued the first time at December term 1805, in the absence of Chief Justice Shippen, by Ross and Levy for the plaintiff, upon their motion to enter j udgment for the penalty, and to take out execution for the sum due at that time, viz. principal and interest; and by Hare and Rarwle contra, who contended that judgment should be entered for the defendants, as the interest could not be recovered in this kind of action, or at all events merely for sixty dollars, the year’s interest due at the commencement of the action.</p>

<p>THIS was an ejectment for land lying north and west of the; rivers Ohio and Allegheny and Concwango creek. The warrantto the lessor of the plaintiffbore date the 13th of April 1 v'92, and called for400 acres “ adjoining land this day granted to Walter “ StewartAt the time the warrant was taken out, and. until the treaty of General Wayne, which was made at Meadvilk on the 3d of August 1795, and ratified on 23d of December following, there was an Indian war on the frontiers of Pennsylvania; and the frequent irruptions of the enemy into the quarter of the country to which the warrant applied, haVe been repeatedly recognised by the courts of this state as excusing during that period the settlement required by the act of 3d April 1792; indeed until the spring of 1796 there was hardly an instance of any person, except a few intrepid and perhaps rash adventurers, who attempted to make a footing in that country. On the 17th June 1794, more than two years after the date of the warrant, a survey was made upon it by Reese, the deputy surveyor of the district, according to the description in the warrant “ adjoin- “ ing Walter Stewart;” but no entry was made at that time by the lessor of the plaintiff, or by any one under him, with a view to settlement. The defendant entered on the land in July 1795; and the plaintiff brought his ejectment to September term 1797, more than a year and a day after Gen. Wayne's treaty, but less than two years. The demise was laid as of the 1st October 1796.</p> <p>The whole case turned upon the construction of the 9th section of the act of the 3d April 1792, which is in the following terms. “ No warrant or survey to be issued or made in pursu- “ ancc of this act for lands lying north and west of the rivers Ohio “ and Allegheny and Conewango creek, shall vest any title in or to the lands therein mentioned, unless the grantee has prior “ to the date of such warrant made or caused to be made, or “ shall within the space of ttvo years next after the date of the “ same make or caúsete be made an actual settlement thereon, “ by clearing, fencing and cultivating at least two acres for “ every hundred acres contained in one survey, erecting thereon “ a messuage for the habitation of man, and r<- siding or causing a family to reside thereon for the space of five years next fol-lowing his first settling the same, if he or she shall so long “ live; and in default of such actual settlement and residence, it" “ shall and .may be lawful to and for this Commonwealth to “ issue new warrants to other actual settlers for the said lands “ or any part thereof, reciting the original warrants, and that “ actual settlements and residence have not been made in pur- “ suance thereof; and so as often as defaults shall be made, for “ the time and in the manner aforesaid; which new grants shall “ be under and subject to all and every the regulations contain- “ ed in this act. Provided, that if any such actual settler, or any “ grantee in any such original or succeeding warrant, shall by “ force of arms of the enemies of the United Stales be prevented “ from making such actual settlement, or be driven therefrom, “ and shall persist in his endeavours to make such actual settle- “ ment as aforesaid, then in either case, he and his heirs shall “ be entitled to have and to hold the said lands, in- the same “ manner as if the actual settlement had been made and “ continued.”</p> <p>At the trial of the cause in November 1802 in the Circuit Court of Allegheny county, a verdict was taken for the plaintiff, subject to the opinion of the court upon three points reserved; and which were now the ground of appeal, as the decision of the court below was in favour of the plaintiff upon all of them. 1. Whether, as no survey was made upon the plaintiff’s warrant within two years next after the date, any survey thereon made afterwards could vest a title in the warrantee. 2. Whether any title vests in a warrantee under the act of 3d April 1792, unless he has made an actual settlement before the date of the warrant, or within two years next afterwards. 3. Whether, supposing the plaintiff to have been prevented during the two years after the date of his warrant from making an actual settlement, he had proceeded to make it within a reasonable time aft^r the prevention ceased.</p>

THIS was an appeal from the Circuit Court of Somerset county. '' . It was an action on the case in nature of a writ of conspiracy.

I this cause a case was stated for the opinion of the court, which in substance was as follows: 7ohn Baynton, Samuel Wharton, and George Morgan, were seised in fee as join-tenants of the premises in question on the 1st of August 1767. On the 11th of November 1769, Baynton and wife, Ikiorgan and wife, and Baynton for Wharton, but without any autho., ritv from him, executed a mortgage of the premises to Benjamin Marshall.

<p>of. To call a clergy a drunkard is actionable. Words Spoken by the defendant of and to the plaintiff before a church Presbytery, in the course of his defence against charges there brought against him by the plaintiff, are not actionable, if he does not wander designedly from the point in question, for the purpose of uttering them. Qu. Whether being refused admission into a Presbytery is such special damage as the law will take notice of.To call a clergy a drunkard is actionable. Words Spoken by the defendant of and to the plaintiff before a church Presbytery, in the course of his defence against charges there brought against him by the plaintiff, are not actionable, if he does not wander designedly from the point in question, for the purpose of uttering them. Qu. Whether being refused admission into a Presbytery is such special damage as the law will take notice of.</p>

In Error. THIS was a writ of error to the Circuit Court of Allegheny county, upon a bill of exceptions to the opinion of YEATES and SMITH Justices. The questions arising out of the bill of exceptions were argued by Ross for the plaintiff in error, and by Woods and Addison for the defendant in error; and in delivering his opinion, the Chief Justice has rendered any further statement unnecessary.

THIS was an action for money had and received, tried before the Chief Justice, at NisiPriu$ in 7une 1806. The facts in evidence were, that the plaintiff and Eoulkc had been concerned in several adventures to jVew-Orleans, upon the accounts of which, different sums appeared to be due to theplaintiff from Foulke, who had received the proceeds; and for the recovery of these sums with interest the action was brought.

THIS was an appeal from the Orphan's Court of the city ~nd county of Philadelphia. Mr. Fox the appellant, who was acting administrator of W~. 13. ifocAley, settled his account in the register's office, from which it was passed to the Orphan's Court for confirmation.

THE defendant was tried before TILGrnaAN C. J. ~md SMIm J. at a court of Oyer and Ternilner, holden by the Judges of the Supreme Court in the county of Philadelphia, in ~/anuary !80~, under the following indictment: The grand inquest, &c. &c. do present that .Z\Ticholas Boyer, late of the county aforesaid, yeoman, on the first day of May in the year, ofour Lord 1806, with force and arms at the county aforesaid in a certain lane near the highway, in and upon one John Dufey,…

debt THIS cause was originally instituted in the Common Picas of Montgomery county, from whence it was removed to the Circuit Court by habeas corpus. It was an action of assump-. sit to recover a debt due by the defendant's testator, to which the defendants pleaded non assumpsit and payment, and the Act of limitations, and the plaintiff replied in the usual form.

In Error. WRIT of Error to the Common Pleas of Crawford coun~ ty. Held: who found that the rents and profits would pay in seven years. The inquisition was returned and filed, and in November 1805 the plaintiff made an entry on the docket that the execution was discontinued. He then took out a second ft. fez., and levied on lands of Robert, which were condemned aiid sold.

In Error. THIS was a writ of error to the Common Pleas of Fayeuc ~ county. Wood the plaintiff below, brought an action of partition against Ebert, to which he pleaded non tenent ins~inul. At the trial of the cause, Wood gave in evidence a deed from a certain 7ohn Lea to himself for an undivided moiety of the premises in the declaration, and another deed from the same Lea to the defendant for the other undivided moiety.

In Error. If a justice gives judgment for a certain sum and interest, in the whole above his juridisction, and the defendant appeals to the Common Pleas, although he there pleads the general issue and goes to trial, judgment will be arrested. The proceedings WRIT of error to the Common Pleas of Washington county.

IN ERRoR. IN this cause, which was brought up from the Common Pleas of Washington county by writ of error, a case was stated for the opinion of the court, which was in substance as follows: ~ohn Patterson died intestate, possessed of personal pro- perty, and seised in fee of real estate. At the time of his death several persons had obtained judgments against him before jus- tices of the peace.

In Error. r ¡PHIS cause came before the court on a writ of error to the -®- Common Pleas of Crawford county. A motion was made to the Common Pleas on behalf of Shortz the defendant below, to open a judgment entered against him by Quigley, on a bond with warrant dated 4th December 1800, conditioned for payment of 133 dollars 33 cents on the 15th October 1801. The judgment was entered as of October term 1803.

THIS was an appeal from the decision of Yeates J. at a Circuit Court far Beaver county in September 1806. It was an ejectment for a tract of land lying north &c. of the Ohio, taken up under the act of 3d April 1792.

THIS was an ejectment for lands lying north and west of the Ohio &c. It was tried before Yeates J. at a Circuit Court for Beaver in September 1806, when the following facts appear- cd in evidence. The plaintiff~s title was founded on a warrant dated the 14th April 1792, which was entered in the deputy surveyor's office on the 10th june 1793, and a survey made thereon the 6th April 1795.

In Error. THIS was a writ of error to the Common Pleas of Ghe8ter county. It was an action brought by the defendants in error, (the plaintiffs below) who were furnacemasters, to recover the price of some pig iron sold to Sterrett, who was a forgemaster.

A ETER the reversal of the judgment in this cause, Frazer il moved the Court to award a venire facias de novo to the court below.

r | ’'HIS was an action of trespass brought, against the defendant, who was sheriff of the county of Philadelphia, to recover damages for the misconduct of his officer in the execution of a f. fa. It was tried before Brackenridge J. at Nisi Prkts in December 1807, when the j ury found a verdict for the plaintiff, 750 dolls., damages. The defendant now moved for a new trial on the grounds that the verdict was against law and evidence, and the damages excessive.

THIS cause, which was an ejectment for lands in Mifflin county, was tried before Judges Yeates and Smith upon the spring circuit of 1803, and a verdict found for the plaintiff against the charge of the court. A motion was made for a new trial and a rule to shew cause granted, which it was agreed by both parties should be argued in bank; and accordingly it was now argued by Watts and Duncan for the defendants, and by Dallas and C. Smith for the plaintiff.

<p>An assize of re Corpus. Supreme</p>

<p>A claim against an intestate’s estate lor damages on account of the breach oí &rticl6s agreement under seal, is a debt by specialty meaning of the 14th smt'ofigth April 1794.</p>

THIS was an action of Trover which was tried under the general issue beforeBRACKF.NRiDGE J. at a Nisi Prius in December last. Samuel West was the surviving partner of John West, and an administrator to his estate, in which characters he was possessed of all the personal estate of John, and traded upon it for his own account from 1797, the year in which John died, to the autumn of 1800.

THE defendants were indicted in the Quarter Sessions Northampton county, for feloniously stealing one bill obligatory given by Messinger to Cleaver, and by him assigned to Henry Abel.

In Error. THIS was a writ of error to the Common Pleas of Northampton county. On the 12th of November 1793, Hartzell, as sheriff of Northampton county, sold a tract of land which was purchased by Reiss, who paid him part in cash, and for the residue gave his bill penal with a warrant of attorney. Judgment was confessed on the 26th of August 1795.

<p>The decision of the Circuit Court was affirmed without argument, upon the authority of Burrall v. Dublois. (a)</p>

Ct OVENANT on a policy on goods on board the brig John, J Barker master, from Charleston South Carolina to Cadiz, 15000 dolls, at 15 per cent. The foot of the policy contained the following memorandum: “ This insurance is declared to be “ made on sugars not discharged from on board the above vesu sel at Charleston, where she brought them from Havanna.

<p>An appeal does not lie from the board of property to the Court oi Common Pleas, although an act of Assembly directs the officers of that board to do certain things in case of an Appeal. The only mode of contesting their decision is by an action between the parties in the ordinary way.</p>

r | ^HIS was an action for money had and received to the plaintiff’s use. On the 11th and 15th April 1801, Champneys, as the surety of Maris, executed three bonds to the United States for duties upon goods imported, which he afterwards paid.

In Error. WRIT of error to the Common Pleas of Dauphin county. Calbraith on the 29th March 1782, leased to Black a tract of land, to hold from year to year from the date during the pleasure of the landlord, under an agreement that the tenant should improve the land by cutting off the timber so as to clear it, put it under fence, and pay the taxes.

<p>A will of personal property must be executed according to the law of the testator’s domicil at the time of his death. If it is void by that law, it will not passpersonal property in a foreign country, although it is executed with all the formality required by tiie laws of that country.</p>

THIS was a motion by Rush and Hopkinson for the defendant, to remove this cause from the general to the special jury list, although it had been more , than three years at issue.

THIS was an action of trespass to recover damages from the defendant for breaking and entering the plaintiff’s close, and removing live pannels of fence. The defendant pleaded-not guilty, and liberum tenementum.

T HIS was an appeal from the Circuit Court of Northampton county. Jacob Yoke the appellant married a daughter of Henry Bar-net, and became indebted to his iather-in-iaw m a considerable sum, for which he gave his bond with warrant of attorney. Judgment was entered against Yoke, and executions issued against his property both in the life time of Barnet and after his death, but without effect; the principal part of the judgment remained unsatisfied, and Yoke was insolvent.

THIS action was originally brought in the Common Pleas of Dauphin county, and was removed at March term 1797 to the Supreme Court, by a habeas corpus at the instance of the defendant. It was there put at issue, ~nd after December term 1799, was transferred with the other causes from the same county~to the Circuit Court for Dauphin. It was tried in Dau- phin in October 1803, before Chief Justice SHIPPEN and Judge BRACKENRIDGE, and a verdict was found for the plaintiff.

Johann on and Poalk, in the course of their business as auctioneers, became indebted to Dixon, whose administrators ' the 24th June 1805 brought suit on the official bond for 3333 dollars 33 cents, returnable to September Term, in the name of the Governor for their use. On the 25th June 1805, another suit was brought on the same bond for the use of Abel Hyde; and on the same day another suit for the use of John Sherwin.

THIS was an action of debt, to recover the penalty of 500/. imposed by the habeas corpus act upon any one who shall, without the order and process of a court having jurisdiction of the cause, knowingly recommit or imprison a person for the same offence or supposed offence for which he has been once delivered on a habeas corpus.

THE wife of Syler was the daughter of ~ohn Eckhart, deceased, and the defendants were his sons. The latter were in possession of different parts of a tract of land, which it was alleged belonged to the father who died intestate; and this ejectment was brought to recover the portion which descended to the daughter.

IN ERRop~. T HIS case came up from the Common Pleas of Wort/iu~jberland county by writ of error. The defendants in error on the 23d 7u4, 1803, obtained a judgment against Drum for 171. lOs. with costs, before a justice of the peace; and on the 22d of August following filed a transcript of that judgment in the Common Pleas.

THIS cause was tried before BRACKENRIDGE J. at a Circuit Court for zVorthumbcrland, in May 1804. It was an for land lying within the purchase from the Indians of November 1768.

THis was an action of slander, originally brought in the Common Pleas of Crawford county, and removed by habeas corpus to the Circuit Court, where it was tried before Ye ates J. in October 1806. The declaration contained five counts; four of which charged that the defendant spoke &c. of and concerning the plaintiff “ in substance the following false, “ scandalous, and defamatory words;” and one of the counts laid words which' were not actionable.

t I NilS was an appealfrom the decision of his Honour Judge Brackenridge at a Circuit Court for Bedford in October 1806.

THIS cause came before the court upon exceptions to a report of referees.

In Error. THE record of a judgment against Dubosq, at the suit of the defendants in error, was brought by certiorari from before an alderman, to the common pleas of Philadelphia coun- ty; and no exceptions being filed in writing on or before the first argument day after the return, the judgment was affirmed of course, agreeably to a rule of that court. It was then brought by writ of error to this court, and errors assigned. S.

THIS was a certiorari to the alderman’s court of Philadelphia. The record shewed an action of debt by Emerick against Harris, in which the defendant had suffered judgment to go by default for 11/. 65. Od. and the costs; and the only objection to the proceeding was, that the alderman’s court had no jurisdiction in causes above 10/.

(~ ASE for the opinion of the court in substance as lows: The defendants, on the 28th Januar~j 1~99, underwrote a~ policy of insurance in the name of Benjamin 2~Tone8, for 4000 dollars, on the brig Gharlotte, at and from Philadelphia to N. G., and at and from thence to Ma rtinique. At the time of effecting the insurance, None9 was the true owner of the Gharlotte, and she was duly registered in his name.

In Error. T7* RROR to the common pleas of Montgomery. Holloway, 11 the plaintiff below, brought indebitatus assumpsit upon a judgment entered by warrant of attorney against Pigott in the common pleas oí Westminster.

In Error. ERROR to the common pleas of Bucks. The case below was a feigned issue from the register’s court, to try the validity of a paper purporting to be the last will of Nicholas Vansant; and the defendants in error, who were the executors named in that paper, were the plaintiffs in the issue. Upon the trial, Mr. Boileau was offered as a witness to support the will, and was objected to for various reasons; but the material one was his liability for costs.

THIS cause was tried before Mr. Justice Teates at a nisi prius in the present month, when a point was reserved for the opinion of this court. The facts, according to the report of his Honour, were in substance these.

'TpHIS and a cross action by Ridge against Latimer and Tard, were referred under a rule of court to arbitrators, who found against Ridge in both suits; and the exception upon which it was now attempted to set aside the award was, that the arbitrators had refused to allow Ridge sufficient time to produce bis evidence, From the examination of one of the referees it appeared, that at their first meeting in April or May 1808, the parties were present, and certain documents…

EXCEPTIONS to an award of referees. The referees made up an award in favour of the plaintiffs, and returned it into court with their names subscribed to it, but without seals. The defendant filed several exceptions; but the only one noticed upon the argument, was the omission of seals, required by the following clause in the 3d section of the act of 21 March 1806. 7 St'.

BAKER presented his petition to this court under the act of April 1798, praying for the relief prescribed by that and other insolvent acts of the general assembly. The schedule annexed to his petition set forth that he had no estate of any kind, having made an assignment of all his property on the 13th October, 1808, when he was discharged under the insolvent acts by the common pleas of Philadelphia county.

<p>To support an action o'n the case for damage occasioned by a common nuisance, it is not necessary thatthc damage sustained should have been direct; it is enough if it was consequential.</p> <p>The plaintif r declared that he had prepared rafts, with, intent to navigate them down a river, which was a public highway; and that he did navigate them, until he came to a dam erected by the defendant, by which he was prevented from passing down the river with his rafts. Held, that this is sufficient special damage to support an astipn.</p>

L EVY, upon a former day, obtained a rule up.on the plaintiff to shew cause why a discontinuance should not be entered in this suit; and now, upon the return of the rule, it appeared that the action was brought to March term 1803, and that on the 14th March 1804, by order of the defendant’s attorney, a non pros, was entered for want of a narr, agreeably to the rule of 3d September 1802.

<p>Bargain and sale of tile wife’s land by husband and wife, who, by a certificate of a judge of the common pleas, indorsed on the deed, “ per- “ sonally appeared before him, and acknowledged the indenture to be their act and deed, and “ desired the same to be recorded, she being of full age, and by him examined apart,” not sufficient to pass the wife’s estate.</p> <p>Parol declarations of the wife that she executed the deed voluntarily, and if it was not sufficient, would execute and acknowledge it again, or do any other act to make the deed good,—inadmissible.</p>

SCIRE facias against a garnishee. A foreign attachment against Thomas O'Gormond was laid at the suit of the plaintiff, in March 1803, upon certain goods, consisting of chairs and cabinet ware, in the hands of the defendant; and after judgment against the principal, and an inquisition of damages, this action was brought against the garnishee.

AN amicable ejectment was brought by the plaintiff against the defendants, to March term 1798 of this court, for some lots in Philadelphia, with a view, by trying the title, to determine to which party the commonwealth should grant a patent. A case was finally made for the opinion of the court; and after argument it was decided for the plaintiff, by three judges against one, and a judgment entered accordingly at December term 1804.

BY consent of parties, judgment was entered for the plaintiff in this ejectment, subject to the payment of such sum of money as should be found due to Mr. Lewis, as executor and residuary devisee of Benjamin Fuller.

A SHORT time after the commencement of this action, 4- Canby, while in prison for debt, assigned, inter alia, his claim against the defendant to a certain Thomas Shaw, and then took the benefit of the insolvent laws. The action was after-wards carried on for the use of Shaw, who instructed counsel, and assisted at the trial, when a verdict passed for the defendant.

A FOREIGN attachment at the suit of the plaintiff was laid upon the effects of the defendant in the hands of John Lisle, returnable to March 1801. In April following, Lisle, who was the agent of Medford for receiving and paying the debts of Medford and Willis, and had been previously directed by Medford to stand suit, entered special bail, and dissolved the attachment.

THE household furniture of the defendant was taken under a fi. fa., and the sheriff at this term returned his writ levied as per inventory. Before the levy, the sheriff had been indemnified by the plaintiff; and after the return, a venditioni exponar issued, returnable at next March term.

HIS was an action of debt upon a bond, brought and -~- defended by attorney in the common pleas, and then removed by hab. car. to this court, where it was diecant~nued; the defendant agreeing to pay costs. The question submitted to the court was, what costs were clue to the plaintiff's attorney.

T HE plaintiff Wilt levied upon the property of Keely, which he had previously assigned for the benefit of his creditors; and the proceeds of sale were paid to Keely s assignee by the sheriff. Mr. Franklin conceived himself entitled to distribute the money agreeably to the assignment; Wilt denied-the validity of the assignment, and claimed the money exclusively.

<p>In Error.</p> <p>ERROR</p>

THESE causes were tried at a circuit court for c'he~ter in rune 1808, when the plaintiff in each action obtained a verdict The juries who tried them, were not chosen for the court at which the trials took place; but were summoned to a previous court, when they held a view, and to save the cxpense another view, were continued over by consent. A full panel of jurors notwithstanding was selected and returned for the other issues of the rune circuit.

In Error. T HIS was a writ of error to the common pleas of Berks county. The action below was brought by Kintzer against Shaffer, for slander; and in the declaration, the slanderous words were laid in four counts.

TH* JECTMENT for a messuage and lot in the city of Philadelphia, in which the following case was stated, to be considered as a special verdict. “ John Bleakley the elder, being seised in fee of the premises in the declaration mentioned, on the 8th day of August 1768, duly made and executed his last will in writing of that date, and thereby devised as follows: “ As for and concerning my “ worldy estate, I give, devise, and bequeath, the same in “ manner following, &c. I give…

T HIS was an appeal from a decision of the Chief Justice at á circuit court for Lancaster in May 1807. Webb and wife, who was formerly the wife of Isaac Evans deceased, demanded of William and Isaac Evans, (the former of whom died after action brought) the reasonable dower of the wife in one messuage, one barn, and three hundred acres of land more oi less, as of the endowment of the said Isaac Evans, her late husband, whereof she had nothing.

T HIS was an appeal from the decision of Teates J. at a circuit court for Lancaster county, in April 1806. The action was brought to recover a distributive share of the estate of Frederick White, intestate, from the defendants, who in the writ were styled his administrators. The declaration contained two counts.

A CCOUNT render against the executors of Simon, wh~ was stated by the writ to have been the bailiff and receiv~ er of Michael Gràtz. Pleas, never bailiff or receiver, and mliv accounted.

^JROXALL presented a petition to this court, praying to be discharged under the act of 1798, as an insolvent debtor. At the time of his petition, he was confined in the gaol of Northampton coufity; and by the return to the habeas corpus, upon which he was now brought up for a hearing, it appeared that he was detained by virtue of two executions and a capias from the common pleas of that county.

T HIS was an action upon a policy of insurance for 600 dollars, upon the brig Malleville valued at 2000 dollars, at and from Cape Francois to Philadelphia.

<p>An act of assembly directs “that from and after the passing of the act no person shall be subject to pi'osecution by indictment,” for a particular of-fence at common law. Held, that it puts an end to a pi'osecution for that offence, commenced and carried to conviction before the passing of the act, but in which no judgment has been pronounced.</p>

<p>In Error.</p> <p>ERROR to the common pleas of Philadelphia county* The record was of an action of assumpsit by the Bakers against Wallace, the declaration m which contained four counts:</p> <p>The 1st count laid a colloquium on the 23d June 1804, between the plaintiffs and defendant, concerning the sale of goods by the plaintiffs to a certain Robert Berrett and Andrew C. Smith, and concerning the sale of a house occupied by Berrett on which the defendant had a claim of 6000 dolls, and an agreement by the defendant that the house should be sold and bring 8000 dolls.,- and that the difference between that sum and 6000 dolls, should be paid to the plaintiffs in part payment of the goods. It then stated that upon that discourse the plaintiffs agreed to sell and deliver the goods to Berrett and Smith, in consideration whereof the defendant agreed to guarantee to them that the house should be sold and should bring 8000 dolls, and that the difference between that sum and his claim of 6000 dolls, should be paid to the plaintiffs; and that after-wards, to wit, the day and year aforesaid, the defendant, in consideration of the agreement aforesaid, and also in consideration that the plaintiffs had promised to perform all things in the agreement on their part to be performed, promised to perform all things, &c. on his part. It then averred a performance by the plaintiffs, and that, although the defendant in pursuance of the agreement paid 1000 dolls, parcel of the 2000 dolls, the difference, &c. he had not sold or caused to be sold the said house, nor paid or caused to be paid the said 1000 dolls, residue, &c. (although to do this, the defendant afterwards, to wit, the day and year aforesaid, at the county aforesaid, and often afterwards was requested by the plaintiffs.)</p> <p>The 2d count laid the colloquium between the plaintiffs, Berrett and Smith. and the defendant, and that 7?. and S. had proposed to the plaintiffs to sell the goods, and had offered to pay for them partly by the sale of the house, the proceeds which above 6000 dolls, the plaintiffs were to receive, and partly out of their proper funds, to which the plaintiffs assented. And that the defendant in consideration that the plaintiffs would sell, &c. assumed-that the house should be sold and bring 8000 dolls, and so on, as in the first count, omitting the partial payment.</p> <p>The 3d count laid that in consideration the plaintiffs at the request of the defendant, would sell and deliver to Berrett and Smith, divers goods to the value of 10000 dollars, the defendant undertook and promised in writing that he would thereby guarantee to them that the house then occupied by Berrett should be sold and bring 8000 dolls, and that the difference between his claim of 6000 dolls, and that sum should be paid to them. That the plaintiffs confiding therein, did at the defendant’s request, sell and deliver, &c. of which the defendant had notice; by reason whereof, and according to the tenor and effect of the said promise, the defendant became liable to pay the difference between 8000 dolls, and 6000 dolls, to wit, 2000 dolls, and being so liable he promised to pay, when he should be thereto afterwards required.</p> <p>The 4th was a count for goods sold to Berrett and Smith, at the special instance and request of the defendant.</p> <p>Upon the trial of the cause it appeared that Berrett and Smith were in treaty for the stock in trade of the plaintiffs, and that Smith had negotiated with the defendant to give the engagement which was the ground of action. This engagement and two notes which preceded it, were as follows:</p> <p>“ Messrs. Berrett and Smith will have the goodness to say “ whether they have determined with respect to the stock; as “ we have been and are hourly deprived of making sales, which “ is a serious disappointment and loss. If Mr. Wallace is de- “ termined on selling the house, we presume he can have no “ objections to saying he willpay us the difference between his “ claim and the amount. We are &c.”</p> <p>“ James and John Baker”</p> <p>“ 22d June 1804*”</p> <p>“ To Berrett and Smith.”</p> <p>“ Gentlemen,</p> <p>u “ “ Mr. Wallace assents to your proposals in your note oí being answerable for -whatever sum the house may bring over his claim of 6000 dolls, which shall be accomplished as soon as possible, and you receive the cash from him.”</p> <p>“ Berrett and Smith”</p> <p>“ To J. and J. Baker”</p> <p>“ I agree to the above.</p> <p>“ Burton Wallace.”</p> <p>“ I do hereby guarantee to Messrs. James and John Baker “ that the house now occupied by Mr. Robert Berrett shall be “ sold, and bring eight thousand dollars, and the difference be- “ tween my claim of six thousand dollars and that sum, shall vC be paid them.”</p> <p>“ Burton Wallace .”</p> <p>“•Philadelphia, June 23,1804.”</p> <p>The defendant offered a witness to prove that it was never intended by him that he should pay or deliver to the plaintiffs any money whatever, but the surplus, if any there should be, beyond the sum of 6000 dolls, expected to arise from the sale of the house. He also offered to prove the declarations of Andrew Smith on whose instance and behalf he entered into the engagement, and the declarations and understandings of Smith and himself, before he signed the engagement of 23d of June, although the plaintiffs were not present when they were made. But the evidence was ovei-ruled by the court. The court then charged the jury that the defendant was bound to sell the house in a reasonable time, and that the contract being made the 23d of June 1804, and the action brought in May 1805, they were competent to say whether reasonable time had been allowed; that the note was not void under the act of frauds and perjuries; that the demand, not being for a precedent debt or duty, the declaration had duly stated a special deepest, of which evidence had been given that they were to decide upon; and finally that the consideration of the agreement was valid, the plaintiffs having in consequence of it parted with their property. To this opinion and charge the defendant tendered a bill of exceptions, which the court allowed, and the jury found for the plaintiffs.</p>