Volume 1 — Dallas' Reports (U.S. vols 1–4)

<p>SCIRE facias against Defendant as Garnishee. The Case was; C. in the West-Indies was indebted to P. the Defendant, for Bills of Exchange drawn by C. in Favour of P. which were protested. P. by Letter Solicits C. for Security. C. consigns a Quantity of Rum to P. and by Letter directs P. to sell the same for his (C’s) Account, and apply the Proceeds to the Payment of some protested Bills drawn by C. in favour of other People “first being satisfied that his (P’s) Bills were paid.”—The Bills of Lading express this Rum to be shipt on the proper Account and Risque of C.—The Rum comes into P’s Hands, but before any Sale, the Plaintiff S. a Creditor of C. brought a foreign Attachment against C. and attached these Goods in the Hands of P.—The Question on these Facts, as found by a special Verdict, was, Whether P. should retain the Goods for the Payment of his own Debt, or whether the Property remained in C. so as to be liable to the Attachment of S?</p> <p>It was urged by the Council for the Plaintiff, that the Consignment of this Rum to P. on the Account of C. with Orders to sell the same on the Account of C. and then to apply the Proceeds according to his Directions,did not alter the Property, but left the same in C. till a Sale. And that P. was only to have a future Interest in the Money arising from the Sale of the Goods.—But the Plaintiff being as well a Creditor as the Defendant, and coming in under the Law of Attachments before a Sale and while the Property, by the very Terms of the Consignment, remained in C. ought to be first paid his Debt. The counsel cited Bro. Property 2. 2 Mod. 242. 2 Chan. Cases. 7. 36. 1. Salk. 160. 12 Mod. 156.</p> <p>For the Defendant: It was contended, that the Rum was a Security in the Hands of P. for the Payment of P’s Debt, and that P. was a Trustee for himself and the other Dutch Bill Creditors. And that such a special Property was vested in P. that C. himself could have no Remedy to get these Goods out of the Hands of P. till P’s Debt was satisfied; and that the Plaintiff could be in no better case than C. himself.—The Cases cited for the Defendant were 2 Vern. 428. 2 Thomas Jones 222. 2 Peere Williams 326. Bro. Act. sur Case 113. 271. Finch 299. 236. 10 Mod. 432. Yelv. 164, 2 Leon 30. 10 Mod. 144. 2. Co. 26. 1 Stra. 165.*</p>

ON special Verdict. Devise first Heir Male of I. S. when he shall arrive to the Age of 21 Years, he paying to A. and B. the Daughters of I. S. £. 40 each.—After Devisor’s Death I. S. had a Son, who attained the Age of 21 Years, and paid his Sisters the £. 40 each.

<p>A Letter from James Steel, Receiver General and Secretary of the Land Office, to the Surveyor General’s Deputy in Chester County in these Words, “Friend Isaac Taylor, Philadelphia, 3d 2m “1719.—James Logan has agreed that the Bearer hereof William “Willis shall have 500 Acres of Land at Conestogoe. Please to survey “it to him and the Warrant shall be ready.—Thy loving Friend, “James Steel,” offered to be given in Evidence as the Foundation of the Defendant’s Title. Objected, on the Part of the Plaintiff, that James Steel by his Order only, without a Warrant from the Proprietors or the Commissioners of Property, could not authorise the Location of Lands: And even supposing it to amount to an Order from James Logan himself, as he was only one of three Commissioners, such Order cannot be a sufficient Warrant.</p>

THIS Cause came before the Court for a determination on a special Verdict which found, That the Defendant’s late Wife Sarah, before her Marriage, was seized of the Lands in question in fee; that after her Marriage, with the Defendant, she and her Husband joined in a conveyance to two Trustees and their Heirs, “Habendum to them and the Survivor of them and his Heirs for “ever, in trust nevertheless to and for the proper Use and Behoof of “the said P. Turner and S. his Wife,…

PLAINTIFF shewed a title in himself to the Province of Pennsylvania, and then rested. Defendant shewed a deed for one thousand acres of land—also a warrant to himself, and two others, to take up three thousand acres of land, which included the lands in controversy—also a power of attorney to David Lloyd, to take care of said land, and an account of the expenses of survey.

JOHN FISHER, having two sons and a Daughter, made his will, and devised a plantation to his son Matthias in fee. Matthias dies in his minority, intestate, and without issue. Question:-whether his heirs at common law shall take; or it shall divide among his other brother and sisters, under the supplemental intestate law of this Province? On a trial in ejectment for the plantation, it was agreed by council, that the opinion of the Court should be conclusive to the Jury.

<p>PLAINTIFF brought an action of debt on an arbitration Bond in Bucks County, Common Pleas. Defendant pleaded null award. Plaintiff replied, and set forth an award. In September Term, 1775, Plaintiff got a rule for rejoinder in fix Weeks, or judgment. Before the six weeks expired, defendant’s attorney gave him a rejoinder, and, at the same time, shewed him a Habeas Corpus, by which he intended to remove the cause to the next Supreme Court. Plaintiff, chusing that the proceedings should go up above, as they were below, took out a Certiorari, and, going into court the first day of the term, got it allowed—The next day the defendant presented the Habeas Corpus, to which plaintiff’s attorney objected, for that the record was removed by the Certiorari—The Court below agreed to send up both writs, and let the Supreme Court receive the record on which they pleased.</p> <p>Now it came on to be argued, and the plaintiff’s council contended, that the record should be received only on the Certiorari; First for that, when the other writ was presented, there was no record before the court, on which the Habeas Corpus could operate; and that the power of the court below was exercised. Secondly, that if that could not be allowed, yet both writs might be returned reddendo singula singulis; the Certiorari might remove the cause, and the Habeas Corpus the body; and there was no inconsistency in so doing.</p> <p>The defendants council rested it on the advantage taken of him, and on the constant practice of the court with respect to writs of removal.</p>

ON Certiorari to Chester, to remove an order and judgment of sessions, for the removal of James Heany. Exceptions taken to the proceedings below—That it did not appear the pauper had been examined; nor was any reason set forth why he was not: That natural justice required he should be heard before he was removed. And the following cases were cited:—2 Salk. 488. to shew the examination must be by two Justices.—2 Stra. 1092. S. P. And. 238.—Sett. Cas. c. 18.

AT a Court of Oyer and Terminer &c. held at Philadelphia in November, 1778, the Defendant was indicted for Forgery upon two bills. The proceedings were removed by certiorari returnable into this Court, on the 5th day of December following; and the issues, on not guilty pleaded, were tried before a Special Jury on the 14th April, 1779, when the Defendant was convicted upon both indictments.

CERTAIN goods of British manufacture being imported into the County of Philadelphia, contrary to the Act of Assembly, passed the 10th of September 1778, they were attached, and this information filed against them. The owners of the goods exhibited a claim, and the merits of the case were brought to trial, at an adjourned court, on the 10th of January 1782, when the following points of evidence were ruled.

A DEED executed by two persons, with one wax, and another ink seal, attested by one witness only, and merely proved by him before a justice, without being recorded, was offered in evidence.

LEWIS moved in arrest of judgment, on two grounds: 1st. For that the indictment stated, “that the prosecutor was seized in his demesne as of fee,” without saying when he was seized; so that it might be he was seized at the time of the indictment found, and not at the time of the forcible entry.-2d. For that the indictment stated “that he was seized in his demesne as of fee,” and “his peaceable possession thereof as aforesaid continued until &c.” which is repugnant and…

This action was commenced returnable to the ensuing term, and now, August 6th, previous to the return of the writ, the plaintiff moves for a special court, under the new act, for granting special courts to plaintiffs.

A MOTION was made, the 10th of November, on the part of the defendant, to set aside the return of the jury of inquiry, on affidavit of irregular proceedings; and the Court granted a rule to shew cause &c. And now two of the jurors attended and deposed, that Leib’s book, supported by his own oath, had been admitted as evidence of the delivery of a quantity of leather by Leib, to the order of Bolton, in part discharge of an agreement between them.

<p>IN an action of debt upon a bond, judgment being obtained, and execution issued, Wilcocks moved to stay proceedings upon this ground; that, though the bond was dated in June, the consideration, for which it was given, arose before the 1st of March 1781; and, therefore, he contended, that his client was within the protection of the Act of Assembly passed the 27th of December 1784, which entitles a defendant to a stay of execution, for a certain time, upon tendering the interest and costs to the sheriff.</p> <p>was prepared with an affidavit to controvert the facts advanced in support of the motion; but he forbore reading it, and insisted that the Court could not travel into a consideration of the transactions for which the bond was given.</p>

<p>A DEED proved by the affidavit of one of the witnesses before a Justice of the Court of Common Pleas, but not recorded, was offered in evidence.</p> <p>It was objected however, that this attestation is no proof of the deed at common law, unless it be an ancient deed, and possession is proved to have gone along with it; for, the witness ought to appear in Court.—Nor is it admissible under the Act of Assembly, for that expressly requires it to be recorded.</p> <p>Yeates answered, that the point had already been ruled in M‘Dill, versus M'Dill.*</p>

EJECTMENT.—On the trial of this cause, in deducing the plaintiffs’ title, a sheriff’s deed was produced, but no part of the record recited therein. contended, that if the title was set forth, it was necessary to prove every part of it; that between the parties, the Fi. fa. and Vend. Exp. may only be shewn; but that against a stranger the pleadings, verdict, and judgment, ought to be produced. Gilb. L. of E. 9. 10.

LUKE KEATING was indicted for forging a promisory note payable to John Meng, with a forged indorsement of John Meng & Co.—Lewis, for the defendant, objected to the admission of Meng's testimony; contending, that if Meng could prove that the note was false, it would discharge him from the payment; and if he proved it to be a genuine note, his evidence might be given against him in a civil action founded upon the note; in either event he was an interested witness, and,…

<p>THE defendants declining in their circumstances, and being much pressed by their creditors, Basse fled, and Soyer was imprisoned at the suit of the Plaintiff. During his confinement, he executed a bond and warrant to confess judgment, to which there was one seal, and the signature was in this form, “ John Abraham Soyer for Basse & Soyer."</p> <p>And now a motion was made to set aside the judgment, at the instance of the creditors in general, in order that an equal distribution might he made of the effects under a domestic attachment, which had issued against Basse and Soyer.</p> <p>argued, that the bond was a payment of the debt in the eye of the law; and that</p> <p>although Basse was liable to Soyer’s action for a contribution, yet not having signed the warrant, he was not subject to the execution of Gerard, the plaintiff. 2 Black. Com. 295. 3 Bac. Abr. 590. 2 Bac. Abr. 227. 358. 2 Vern. 293. 2 Ch. Cases. 228. They said, that the execution of deeds was not to be regulated by, nor does the effect of them depend upon, a particular custom of Merchants; but they are derived from a superior source, to wit, the law of the land; and they insisted that Basse not having joined in the warrant, the judgment, being joint, must fall to the ground. 2 Black. Rep. 294. Shep. 69.</p> <p>It is regularly true, that, according to 3 Bac. Abr. 611. one merchant may bind his partner, by accepting a bill drawn on both. If, then, in substance, the act of one obliges the other, what difference arises from the circumstance of the delivery not being formally executed? That question was agitated in the case of M'Kim vs. M'Farlan: there Levinz indorsed a note of M'Farlan's to M'Kim; but being indebted to M'Farlan, he thought it proper to give him previous notice of the transaction, and, accordingly, threw the note into his desk with that design. During his absence, M'Kim, who had given a valuable consideration for the note, persuaded Mrs. Levinz to give it up to him, and afterwards sued M'Farlan upon it, who grounded his defence upon this, that the note was never delivered over.</p> <p>Improper and false suggestions were used to induce Mrs. Levinz to deliver the note.</p> <p>True: but the point in discussion was the delivery; and the jury found for the plaintiff.—Cowp 206. Any proof of intention to assent to a delivery is sufficient;—no particular mode of action, no form of expression, are necessary. The present question, however, is, whether the Court will confirm the judgment as to the partner who sealed the warrant, and vacate it as to the other. The adverse Counsel have cited 2 Bac. Abr. 227. 358. to shew that the judgment, being an entire thing, must be wholly set aside, if at all. But this doctrine is fully refuted by 1 Cro. 322. 2 Black. Rep. 1133. With respect to the warrant’s being executed while Soyer was in prison, it may be observed, that an Attorney was present; and m Sluyter’s case, the Court determined that it was not necessary the Attorney should be for the party; but that it was enough if the business was fairly transacted in the presence of an Attorney. Here neither fraud nor violence are suggested.</p> <p>stated two questions: 1st. Whether, upon the facts, this judgment can be set aside as to both Basse and Soyer; and 2d. Whether it can be set aside as to one, and continued against the other?</p> <p>1st. Point. As this was a joint debt, justice naturally requires that the judgment should be confirmed; and it being admitted, that a contract not under seal made by one, would bind both partners, we alledge that the seal creates no difference, for the causa contractu is the sole criterion. Seals are of the same effect in Lex Mercatoria as at Common-law: and there is no authority to maintain the opposite doctrine; for, Shep. 69. is not the case of joint contractors. The books in general, where they speak of the obligation imposed on one partner by the contract of another, mention only notes, and whether under seal or not, is not distinguished. When we declare upon them, we alledge the subscription of both partners, though, in fact, one only subscribes. Therefore, and because delivery is no farther necessarry than as evidence of passing the interest, the first point seems determined in the negative.</p> <p>2d. Point. He observed that the several authorities quoted on the other side, were drawn from writs of error; and, as this record could not appear in its present form, if carried into a Superior Court, he inferred, that either the authorities were not applicable, or the record was to be considered upon the ground of a removal by writ of error: and in that case for error dans le record, the judgment must be wholly reversed; but when the error is debors, the judgment may be reversed in part, and confirmed in part. 1. Leon. 317. Cro. E. 115. 3 Lev. 36. Moore 564. Besides, he contended, that the release of errors, contained in the warrant of Attorney, purges and protects whatever might be deemed irregular with respect to Soyer; although it may not be sufficient to set up a void proceeding against Basse. 2 Stra. 1215. 3 Mod. 109. 6 Co. 25. (a)</p> <p>made three points; 1st. That the the bill of one binds both from the necessity of trade; but that the necessity does not extend, nor does the rule exist, in the case of deeds, and other specialities. 2d. That a judgment cannot be set aside in part, or against one only of the defendants. Where, indeed, the different parts of the judgment are, in their nature separable, as in fines and common recoveries, mere modes of assurance, it may be done; and to those cases only the adverse authorities are confined. 2 Bac. Abr. 569. explains the mode of reversing judgments; and 2 Bac. Abr. 227. is so full upon the impartiality of judgments, that it cannot be too often insisted upon, in the present case. 2 Black. Rep. 1131. contains the same doctrine. 3d. The release of errors must be considered under the distinction in 3 Mod. 109. which shews that where divers are to recover in the personality, the release of one is a bar to all, but it is not so in point of discharge. 6 Co. 25, (a) is explicit, that, where two, or more, are charged jointly, if they bring a writ of error to discharge themselves, the release of one cannot bar the other; for, they have not any interest or benefit, but a joint charge and burthen, which cannot be discharged or released, unless by the plaintiff who has the interest and benefit of it. If, therefore, Soyer’s release does not discharge the error, he concluded, that for the other reasons, the judgment must be set aside.</p>

<p>IN this cause the Chief Justice laid down the following rule in computing interest.</p>

<p>Ejectment.—Yeates, for the defendant, when called upon at the trial to confess Lease, Entry and Ouster, confessed Lease, Entry, and Ouster for part only of the tenements laid in the declaration.</p> <p>This was opposed by Bradford, who contended, that the defendant having taken general defence, when, he first pleaded, and entered into the common rule, he must now confess Lease, Entry and Ouster as to the whole; but the plaintiff can recover no more than he proves the defendant to be in possession of. 1 Att. Prac. 317.</p>

DALLAS moved for a rule to shew cause why the execution issued in this action, should not be staid, till another action, brought upon the act of Assembly against Usury, by Shirtliffe, the present defendant, against Shoemaker, the present plaintiff, was determined.

JOHN M. TAYLOR had put a vessel on the stocks, and contracted with the different tradesmen. When the ship was a little advanced, he sold one half to Stanley, and one quarter to Joseph Carson, or rather interested them each so much in the concern. Taylor continued to be ship’s husband, fitted out the ship, received the bills of disbursements, and was paid by the other partners their respective proportions of the building and outfits.

THE Defendant had been bail for his brother, who suffering judgment to go against him, a Scire facias was issued against the defendant, and in due course judgment thereon—In the interim, between the recognizance of bail and judgment on the Scire facias, several judgments were obtained against the defendant by his proper creditors, executions issued, and his real estate was seized and fold.

<p>THESE causes were marked for trial this day.</p> <p>tendered the affidavit of Mason, the defendant in the first action, of the absence of a material witness. Bradford, for the plaintiff, desired, on the authority of the Chev. D. Eon's case. 3 Burr. 1514, that the Court would enquire what would be the testimony of the absent witness, in order that it might appear whether he was really material.</p> <p>But this the Court refused, and ordered the cause to be continued.</p> <p>then moved, that the action against Keely should be tried; insisting that the affidavit of any person, but the defendant himself, was insuffcient to delay a trial; and he cited Barn. 437. Carter vs Uppington and Gray vs Holton.</p>

<p>THE defendant was brought before the Court on a Hab. Corp. and the return stated, that he was commited in execution by the warrant of a Justice of the peace for a debt of £10, 6, 3.</p> <p>moved that he should be discharged, on this principle, that although the errors of a Justice, while he keeps within his jurisdiction, are binding, ’till his judgment is reversed; yet where he exceeds his jurisdiction, all his acts are, in themselves, merely null and void.</p>

<p>This was an appeal from the Orphan's Court of Philadelphia; and after argument,</p>

THE register of a ship, or, in other words, an affidavit made by one of the defendants (who, however, was not in Court, the return, with respect to him, being non est inventus) stating that the ship belonged jointly to him and other persons, being copied from the books of the naval officer, and certified under his seal of office, was allowed, after argument, to be read in evidence against the defendants.

THIS came before the Court on a case stated; in substance as follows: On the 5th of March 1782, a mortgage was executed by Abet Kelly to Thomas Groome and his assigns, for securing the payment of £ 47. 4. o with interest on the 5th of March 1783.

RULE to shew cause why the report of referrees should not be set aside.

A Judgment had been entered at the settlement of the docket, and the defendant was taken in execution on a Ca. Sa. returnable to December Term 1785. He now applied for the benefit of the insolvent acts, although he was not taken in execution till the 26th of September, and his petition was presented subsequent to the application made by the debtors, on the third day of the term.

LAZARUS BARNET having absconded, several foreign attachments were issued against him; and, afterwards, motions were made to set them aside respectively, in favour of a domestic attachment, which had, likewise issued against him.

FOREIGN attachments.—In these cases rules had been obtained to shew cause of action, and why the attachments should not be quashed.

THIS was an action upon a policy of insurance on the Ship Brothers, which came before the Court upon a case stated, wherein the single question was, whether a warrant inserted in the policy, had been complied with on the part of the insured, or not? After argument,

<p>SINCE the act for the gradual abolition of slavery, a number of persons have formed a society in Philadelphia, for the purpose of relieving those of their fellow creatures, who are held in illegal slavery; and this action is owing to that institution.</p> <p>The plaintiff, being the supposed issue of white and mulattoe parents, attended the defendant to Philadelphia in the autumn of 1784, and presented so pure a complexion, that the attention of the society was excited, and a writ of Habeas corpus taken out at their instance.</p> <p>The boy’s right to freedom was first argued before Mr. Justice Bryan, and, the next day, before the same judge, and the Chief Justice, at their chambers; when the facts being disputed, the Chief Justice advised the counsel to throw the case into the form of an action de Homine replegiando; and recognizances to appear, being entered into on both sides, a declaration was filed of September term 1784, stating that “the defendant Dalby had taken and kept captive the plaintiff, Francis Belt, whereby the said plaintiff is injured &c.” To this the defendant pleaded, that the plaintiff was his slave, and the plaintiff replied that he was a free man, absque hoc &c. rejoinder and issue.</p> <p>Upon the trial, which was by a struck jury, it was given in evidence, that the plaintiff was born in Maryland, of an unmarried mulattoe woman; that the grandmother, and the mother, of the plaintiff, are now, and always have been, slaves; that he was purchased by the defendant’s agent, and that the sale was then in dispute in law in Maryland; that the plaintiff had not been six months in Pennsylvania when the Habeas Corpus was brought; and the plaintiff himself was shewn to the jury, that they might from his appearance draw some conclusion, that he was, at least on one side, the issue of white parents.</p> <p>having proved by the laws of Maryland, that the boy was a slave in that state, contended that the Lex Loci must determine this, as well as other personal and mixed actions; and for that doctrine, cited, among many other authorities, 1 P. Will. 420. Preced. in Chan. 207. He said that the rule, partus sequitur ventrem, was founded on reason and the law of nature, and was as applicable in other countries as in Maryland. 1 Puffend. 599. 693. Iuft. Inft. 1. 13. §. 4. and he observed, that even in Pennsylvania, the Legislature had taken notice of other than negroes and mulattoes, to wit, Indian slaves. 1 Pen. Laws. 46.</p> <p>They said, that, in Pennsylvania, there was no positive law for slavery; though as the acts of Assembly took notice of three sorts of slaves; negroes, mulattoes, and indians, they admitted that, by a reasonable construction, this might be rendered tantamount to an express toleration. But they contended, that even under this admission, the maxim which declares that expressio unius, est exclusio alterius, must be applied to the plaintiff’s case, and, consequently, as he was neither an Indian, a Mulattoe, nor a Negro, he cannot be enslaved by mere implication. With respect to the Lex Loci, they allowed its force in regulating contracts; but insisted that it could never be extended to injure a third person, who was not a party to the contract; which the plaintiff had not been in the present instance; and having thus answered the adverse arguments they laid down four propositions, on which they meant to rely.</p> <p>1st. That, however the case may be at civil law, by the common law the issue follows the condition of the father. 2. Black. Com. 390. Fortesc. de laud. 98. 103. Litt. §. 187. 188. 11 State Trials 343.</p> <p>2d. That a bastard being Nullius filius, is free; for, he who can gain nothing by inheritance, ought to lose no part of his natural freedom by relation to his progenitors. 2 Bl. Com. 94. Co. Litt. 123.</p> <p>3d. That things, not persons, are the objects of property. 2 Bl. Com. 2. 16. 1 Bl. Com. 423.</p> <p>4th. That property in a slave, if it does exist, cannot be transferred without deed. Litt. §. 183; and, consequently, as it is not in evidence, that the plaintiff was sold to the defendant by deed, the defendant has not proved him to be his slave, however the general question may be against the plaintiff.</p>

<p>THIS was an Ejectment for certain premises in the County of Philadelphia.</p>

ON the trial of this cause, offered evidence to prove what was the money meant to be paid by the contract entered into between the Plaintiff and Defendant, under the words current lawful money; and cited Morris v. Wharton.* objected to the evidence, and cited 1 Atk. 447. 2 State Laws 494. Dav. Rep. 48. 72.

THE Referrees in this case, had allowed ex parte evidence to be given, of the current price of Coach-maker’s work, at the time when the cause of action accrued. For this reason, the Defendant moved to set aside their report.

REFERREES, having settled their minds with regard to their report, sent for the Plaintiff, and asked him whether he would agree that a quarter’s rent, which accrued after the action brought, should be taken into the settlement, and the Defendant credited for it, which would have made the ballance in favor of the latter. This the Plaintiff refused to comply with, and withdrew, without being asked another question, or saying any thing further upon the subject.

EJECTMENT for a House and Lot.—The Plaintiff’s Counsel offered to give parol evidence of the declaration of the Grantor made after the execution of a deed, and cited 2 Chan. Ca. 180. Gilb. For. Rom. 232. 233. 2 Atk. 71. 150.

THE President, after argument and consideration, delivered the judgment of the Court in this cause, upon a point reserved at the trial.

THIS was an action for money had and received &c. The Defendant, being Sheriff of Gloucester county in New Jersey, received a sum of money for the Plaintiff, which he lent, with her consent, upon a mortgage of lands in that state. The mortgagor, from time to time, paid the interest to Hugg, and, finally, in the year 1778, paid the whole principal and interest to him in depreciated paper money.

THE Plaintiff had become bound to one Splecit in the payment of a certain sum of money; and, after the bond was due, he obtained a discharge under the insolvent laws. Subsequent to his discharge, the Defendant bought sundry goods of him, and when the price was demanded, tendered Splecit's bond in payment, an assignment of which he had purchased for that purpose.

IT was ruled in this case, that before the goods are removed, the Sheriff ought to allow a reasonable time, for the Defendant in Replevin to find security on a claim of property; which, in the practice of Pennsylvania, supplies the place of a writ de proprietate probanda:

<p>THIS was a case stated for the opinion of the Court.</p>

<p>MOTION for a new trial. The circumstances of the case were these:-James Whitelaw drew a bill of exchange, dated the 30th of October 1775, for £.239. 18. o. sterling, upon William Houston and Co. in Refrew near Glasgow, payable on the 1st of August, 1776, in favor of John Witherspoon, or order; which bill was afterwards indorsed by the said John Witherspoon, by Archibald Currey (the Defendant) by Archibald and Wm. Blair, by John Pringle, by Steinmetz and Bell, (the Plaintiffs) by Mark Freeman and by William Cowpland. The Defendant’s indorsement was made on, or about, the 17th of April 1777, and the bill was presented and protested for non-acceptance on the 30th of December 1778; of which notice was given on the 28th of April 1780, to the Plaintiffs, who on the 9th of November following paid the amount, and giving notice thereof to the Defendant on the 17th of October 1782, they commenced the present action on the succeeding day.</p> <p>Upon the trial, the court was moved to direct the jury to find a special verdict; but, perceiving so great a complication of fact and law in the case; and, being doubtful, as the whole transaction happened flagrante bello, whether the point of reasonable notice of the protest, was proper for them, or the jury, to determine, it was thought best, upon the whole, to leave it to the jury to find either a special, or a genera], verdict, as they should think adviseable. The jury found a general verdict for the Plaintiff.</p>

<p>A Rule had been obtained to shew cause why the Capias, which issued in this case, should not be quashed, the Defendant being a freeholder in the county of Chester. It appeared, that, with the Præcipe for the writ, an affirmation of one Rumford Davis, was filed in the Prothonotary's Office, setting forth, that “the Defendant had not been Resident in this State for two years before the date of the writ;” and, it was contended, that this was sufficient, under the Act of Assembly, to repel the Defendant’s claim of privilege. 1 St. Laws 139.</p> <p>The question, therefore, was, whether the Court could, notwithstanding the affirmation filed before the writ issued, enquire into the matter of residence; in order to determine, on all the circumstances of the case, whether the Defendant was within the exceptions of the act?</p> <p>For the Plaintiff.—The Act of Assembly rests the proof exclusively on the Affidavit of the party, or some person for him; requiring only that he should make the fact, which defeats a freeholder’s privilege from arrest, appear to the Justice who grants the writ. Nor will the section admit of the division for which the adverse counsel contend; because, though there is a clause providing that things shall not be proved by affidavit, which, in their nature establish a higher degree of proof; as judgments, mortgages &c. ye even subsequent to that clause it is said, as the Deponent believes; an expression which manifestly relates to the first part of the section, and necessarily connects the whole, If, indeed, the Court were to investigate the facts, both parties are entitled to a hearing, and a new and preliminary scene of litigation would be opened, involved in endless difficulties. The Legislature, therefore, wisely made the filing the affidavit before the writ issued, the conclusive test for holding the Defendant to bail; and, from the circumstances under which the law was passed, we are authorized to assert, that without these easy exceptions, the privilege itself would never have been granted</p> <p>But, if the doctrine which the opposite side advance is allowed, the 2d and 3d Sections of the act, would contradict each other, instead of holding that clear and fair meaning, which, taken according to their distinct objects, they naturally present. For, should any one, contrary to the spirit of the 1st Section, issue a Capias against a freeholder, then the 3rd Section provides a remedy, by directing the Court to stay all proceedings against the Defendant, until they examine his circumstance, and if they find he is such as the act intended to be exempted, they are required to abate the writ. But this is in the case of an arrest in the first instance, and not of a Capias founded upon an Affidavit previously filed, according to the terms of the 2d Section; which terms make a Condition precedent, and, being complied with, the most wealthy freeholder is subject to an arrest; nor can the Court afterwards interfere to relieve him.</p> <p>For the Defendant.—The Act of Assembly upon this subject is clearly divided into two parts; first, it treats of those cases which depend implicitly on the affidavit of the party, stating the facts uncomplicated with law; and secondly, it treats of those cases, which depend on their respective circumstances, when brought into question before the Court. The present case does not come within the first class, but is fairly within the second; for, having enumerated all the exceptions which may he proved by the oath of the party, or some person for him, the act goes on to state the exceptions which are to be made appear from Records or otherwise; and, the very last of these, is the instance on which the controversy arises.</p> <p>The Defendant’s objection being thus warranted by the letter of the law, will be supported, likewise, by the principle and reason of the thing. For, would it not be absurd to leave it to an illiterate, though honest, man, to determine what constitutes a legal residence? or, to suffer an unprincipled, though cautious, Plaintiff, to take advantage of s short absence, to justify his swearing, that the Defendant has not been resident within the State, for two years before the arrest? If the Court cannot at all develope the circumstances, it will make no difference in the case, whether the absence is for a year, or a day; on a party of pleasure, or a journey of business; the privilege of the most substantial freeholder, must lie forever at the mercy of his antagonist; and even a continental officer, dispatched upon the duties of his profession to another state, will be equally liable to this constructive abridgment of the rights of citizenship. A stronger illustration of this truth cannot be required, than the cause before the Court; for, the Defendant has, within the very two years specified in tile affirmation, represented this Commonwealth in the General Assembly, in the State Convention, and in Congress; and yet, it is contended, that the vague idea of an unlettered individual on the point of residence, shall be sufficient to deprive him of the privilege of his freehold, and, in effect, to declare him an alien.</p> <p>There is, however, an essential difference between residence, and abiding in a particular place. It is admitted, that the Defendant did not abide within the State for two years before the arrest; but, we contend, that, nevertheless, in contemplation of law, his residence was here: For, a man is always presumed to reside where his family is; and, though when he goes abroad upon any temporary avocation, he abides in that district to which he goes, yet this does not destroy his original, domestic, Residence. By one Act of Assembly it is provided, that foreign attachments shall only issue against such as are not resident within the State; 1 State Laws 44. And by another act, 1 State Laws 170, it is declared,that no person who has not resided within the State two years before his imprisonment, shall have the benefit of the insolvent laws: In these cases, and in the construction of the Poor Laws, and, in short, of all the statutes in which the word occurs, it has been the invariable practice of the Courts to enquire into the facts, upon which the residence is either asserted or denied; and, on that enquiry, to pronounce the law. Thus on the petition of one M'Intire for the benefit of the insolvent law, although he had been absent more than two years and a half; yet, as it was in proof that he was a Native, and always intended to return hither, this Court lately determined that his residence became a matter of law, and that the animum revertendi was sufficient to prevent his loosing the advantages of it.</p> <p>What then is the proper interpretation of the act upon this subject?—That the party shall set forth in his affidavit such facts, as will enable the Court to draw the legal inference, with respect to the Defendant’s residence; which, after all, is a technical term, 5 Burr. 2724, and the maxim is well established, that a witness may swear to matter of fact, but not to matter of law. This rule, indeed, (which applies in all cases of evidence) satisfactorily explains why a disjunctive is introduced in the section under consideration; why the provision in the former part of the clause, that the Justice who grants the writ shall administer the oath, is omitted in the latter; and why the words, the Plaintiff, or some other person for him, are dropt, when the section comes to treat of those things which are matter of law;—for the expression as the Deponent believes, at the same time that it precedes the sentence respecting the Defendant’s residence, evidently relates to the value of the estate, and not the mode of proving the incumberances that affect it. But surely the legislature could not mean to make a man the judge both of fact and law in his own cause, and that without appeal. Holt asserts that an Act of Parliament which should authorize so unreasonable a thing, would be void; and it is fortunate, on this occasion, that a candid review of the law itself, does not countenance this absurdity, which lies only in the Plaintiff’s construction. The first clause defines the Persons privileged; the second narrows down the privilege by a variety of exceptions; these exceptions are either in fact or law; and the exceptions in law are such as must either be determined by the records themselves, or by the Court upon a statement of the facts on which they arise. If, therefore, it had been intended to leave the matter of residency entirely to the affidavit of the party, the division of the section by the word or, would have been postponed, and this sentence must then have been classed before those things which are to be proved from records or otherwise. Nor is the word otherwise to be considered as merely distinguishing the proofs by record, from those by affidavit; but as meaning such other evidence as the common law requires: for, surely it would be as improper, nay, more dangerous, to permit a man to swear as to the residency of his adversary, than as to the existence of a mortgage or judgment, which he might easily ascertain, by inspecting the dockets and records in which they are entered.</p> <p>But, let us suppose, that there was no disjunctive in the section, and enquire, for a moment, whether the Court, even on that ground, have not a right to investigate the facts contained in the affirmation? By the last sentence of the second section, all the affidavits, taken in pursuance of the act, are directed to be filed: now, this cannot be intended merely to shew that an affidavit has been made, for that would sufficiently appear from the entry in the docket; but as another, more beneficial, purpose, results from this practice, the Court will think themselves bound to support that purpose, as the real object of the legislature; and will determine, accordingly, that the filing of the affidavits is intended to give the Judges an opportunity of seeing, on any future controversy, whether the allegations bring the case legally within the exceptions of the act. In the instance of residence, above all others, as few Plaintiffs comprehend the technical import of the word, this provision seems to be indispensible; and when the 3d section says, that if the Court find the Defendant is such as by the act is entended to be exempted from arrest, it furnishes a conclusive argument, that they must examine the evidence produced by the Parties; for, in order to find a particular object, it is clearly require, in the first place, to search for it.</p> <p>These ideas on the subject are, likewise, corroborated by the uniform practice of the Courts; which has been to issue the Capias at once, leaving the proof of the exception, ’till the Defendant makes his claim of privilege. The Defendant in the present case would be under no difficulty to obtain bail; but the principal ground of his opposition is, that if he new tacitly suffers himself to be arrested, his privilege, by the words of the act, will be forever extinguished.</p> <p>For the Plaintiff, in reply. Though the best Freeholder may be arrested after notice to enter special bail, yet, as this is a compulsory process, it will not destroy his privilege in another action. To do that, there must be a willing submission to an arrest, by which the Defendant holds out to the world that he is not within the privilege of the act.</p> <p>Resiae ice is certainly a construction of law in a great variety of instances. Sutbrown's case in Foster 76. shews that a man may have several places of residence, and any of them may be the subject of a Burglary. So, by the Poor laws, a man may live in a particular place all his life except one day, and yet not acquire a legal residence; for, he may be under a certificate, or he may not have complied with the conditions of the statutes: And in the case of Ambassadors, although they actually reside abroad, their children are deemed natural born subjects of the realm. 5 Burr. 2724. is grounded on the words of the Act of Parliament. But the Act of Assembly in discussion, clearly meant a literal and not a technical and constructive residence, or it would not have been made the subject of an affidavit, which is to be sworn by persons not generally possessed of technical information.</p> <p>The decisions under the attachment law, establish a distinction between inhabitants and residents; as in the case of Lazarus Barnet, * where the foreign attachments were quashed, because he came under the former description. With respect to decisions under the insolvent laws, whether the petitioner has resided in the state two years, or not, is a matter immediately before the Court; but in the present case, it is a fact to be sworn to in order to entitle the Plaintiff to a certain advantage. The whole law is connected, indeed, by the idea of an affidavit; and there are many instances where an incumberance to diminish the value of the Defendant’s estate may be proved without producing the mortgage or record. For example; at any time before the acts for recording deeds and mortgages; or, within six months, since those acts respectively, evidence might be given of a mortgage in the hands of a third person; or a Scrivener might prove that he had witnessed the execution of a conveyance from the Defendant.</p> <p>The reason for filing the affidavit, is, that it may appear to the Court what it contains, for, swearing to any thing does not entitle the Plaintiff to bail. If, however, it is made in conformity to the act, it is conclusive; then, (as Lord Mansfield somewhere expresses himself) he is sworn, and you have no remedy but to prosecute him. The act says, in all such cases, that is, where the regular affidavit is made, a Capias shall issue. This is included in the very clause where judgments are mentioned; so that, in strictness, the exception founded on judgments, ought, likewise, to be accompanied with an affidavit. Nor is this making a man the judge in his own cause; for he only swears to the words in their literal and customary meaning and import.</p> <p>The law declares that if any Freeholder exempted from arrest by virtue of this act, shall happen to be taken by a writ of arrest, the Court shall abate the writ. But, if an affidavit has been filed agreeably to the 2 section, no man can be a Freeholder exempted by the act from arrest; and, consequently, the Capias, in this case, shall be maintained. The act was evidently the result of a compromise between contending parties; one side obtained a general clause exempting Freeholders from arrest; and the other side, guarded against this privilege by a Proviso, which, in fact, puts it in the power of any person to compel a Freeholder to give bail. But if the Court can enquire into the facts in all cases, this provision is a mere snare; for should the weight of affidavits be eventually against the Plaintiff, he will not only lose his action, but be condemned in treble costs.</p> <p>Upon the first argument, Shippen, President, observed, that there was considerable ambiguity in the Act of Assembly; and that he was not satisfied with respect to the meaning of the expression “where the Plaintiff can make appear from records, or otherwise,” as it was not specified to whom the exception should be made appear. He said that in several cases (one of which he remembered was on Mr. Levy’s motion) it had been determined that the second section of the act was disjoined; and that no affidavit was necessary to support the exception founded upon a judgment, which was the legal test of its own existence, and no other evidence would be received to prove it. He added, at the same time, that the words, as the Deponent believes, clearly related to the Defendant’s not having a sufficient estate left to satisfy the Plaintiff’s demand; that it is not necessary to set forth the facts in the affidavit under this act, as it is in England where a positive affidavit is required to hold the Defendant to bail; that if, indeed, the whole of the second section were connected, it would amount to a condition precedent, and a positive affidavit would preclude the Court from any enquiry into the facts; but, he continued, that the section was not only disjoined by the words of the act (in the first place admitting proofs by affidavit or affirmation; and in the second place requiring proofs from records or otherwise) but also by the reason and propriety of the case, which will not permit a Plaintiff, in his own favor, to determine what constitutes a legal residence.</p> <p>Smith, the Prothonotary, being asked as to the Practice, said, that in some cases the affidavits were filed before, but, more frequently, after the issuing of the writ. If the suggestion was, that the Defendant intended to go abroad, the affidavit had always been filed in the first instance; but with respect to the case of residence, he did not recollect any instance, before the present, where that was done.</p>

JUDGMENT being entered by default at the first term, Mifflin had obtained a rule to shew cause why it should not be opened, upon the affidavit of a third person, that the Defendant was bed-ridden, and that there was a just and conscionable defence. Todd a terwards opposed the action as grounded upon the affidavit of a third person.

ON a rule to shew cause, why auditors should not be appointed, under the Act of Assembly, the Defendant’s deposition was read, wherein he swore, that no question of depreciation could arise in this cause.

THE case was this: Hoe and Harrison of Virginia being indebted to Wallace and Smith, Wallace, as surviving partner of Smith, issued a foreign attachment against them, and attached their effects in the hands of Fitzsimmons. Judgment was obtained on this attachment at the third term; and, afterwards, Fitzsimmons entered special bail. The cause then proceeded, till judgment was finally obtained against Hoe and Harrison, and upon the return of a Ca.

<p>HALLOWELL moved for a rule to take the depositions of going witnesses &c. before the return of the writ in this cause.</p>

<p>THIS was an action of debt brought upon a bond, dated the 5th June, 1779; the penalty of the bond being in "£ 200 hard Money computing half Joes at £3;" and the condition, for the payment of "the full and just sum of £ 100 hard Money, or Specie, computing half Joes at £ 3; on the expiration of five Years, from the date with lawful interest &c." The Defendants pleaded Payment, to which the Plaintiff replied, Non Solverunt, and issue was thereupon joined.</p> <p>It appeared at the trial, that the bond was given in consideration of a sum of £ 500 Continental Currency, lent by the Plaintiff to the Defendants in June, 1779, when the scale of depreciation estimates that money at twenty for one.</p> <p>contended, that the Plaintiff’s demand was of an usurious nature, and so unreasonable, that it ought not in equity and good conscience to be allowed. They admitted, that the Jury could not sett aside the contract of the parties; but insisted, that they might, and in this case ought to give only damages, according to what was just and reasonable; and that they were not bound to find the sum expressed in the bond. 2 Vern. 402. 121. 1 Atk. 351. 2. Kaims Princ. Eq, 70. 2 Eq. Abr. 186. pl. 9. 2 Vern. 14. 10 Mod. 503.</p> <p>This is an action of debt upon a bond, and therefore the case of damages is not applicable, unless the Jury shall think proper to give any thing beyond the penalty. There is nothing usurious or unreasonable in the contract; for, at the expiration of the five years, in which the bond was made payable, if the continental money had appreciated, the Plaintiff would have been a considerable loser. Besides, an Act of Assembly declared, that a continental dollar should be equal to gold and silver; and the money, being a legal tender when lent, the Defendant may have paid a specie debt with it. Nor can a question of usury be considered in this action; for, the Act of Assembly does not make the contract void on that account, as the English statute does, but only inflicts a forfeiture, equivalent to the money or other article lent, which must be recovered in another suit. In the case of Lee vs. Biddis, ant. 175. this Court refused to let in evidence to shew what was meant by current lawful Money, expressed in the contract, because it would tend to contradict, not only the contract, but likewise the Act of Assembly establishing the scale. Here the contract is expresly for the payment of hard Money, and as the law only fixes a scale for the payment of contracts in continental Money, where no Tender has been made, the Jury cannot set aside the solemn act of the parties, but ought to find a verdict generally for the Plaintiff. 2 State Laws 7. 448. 494. 1 State Laws 120.</p>

<p>THIS was an action brought upon a bill of exchange drawn by the Defendant in favor of the Plaintiff, and by him indorsed in blank; and a count for money had and received &c. was added in the declaration. The bill being returned protested, a question arose, whether the Plaintiff was entitled to recover twenty per centum damages?</p> <p>The Defendant contended that the damages ought not to be allowed, because the bill was neither paid, nor accepted, in satisfaction of the debt for which it was drawn; and to prove this a receipt was produced from the Plaintiff in the following words: “Received 1st of Sept. 1784. of Mr. Jn. Steinmetz a set of Bills dated “the 30th August last on John Bulkley and Co. of Lisbon for £.478. “17. 7. Sterling, which when paid will be in full for the balance of “account due to the Estate of the late Wm. Neate of London deceased.”</p>

MOYLAN, in shewing cause against a rule for a Special Court, at the instance of the Plaintiff, contended, first, that Williams was not within the description of the persons for whom the act provides a summary relief; and secondly, that the difficulty of obtaining the Defendant’s testimony at a short notice, was a sufficient reason to induce the Court to discharge the rule.

<p>THIS action, brought by the indorsees of a bill of exchange, against one of the indorsors, now came on for a second trial. *</p> <p>but, as the circumstances and principles of the case, are accurately preserved in the charge of the court, it is unnecessary to give any other statement of the facts or arguments,</p>

<p>THIS was an appeal from the Decree of the Register of Wills, and two justices of the Court of Common Pleas of the county of Montgomery, who admitted an instrument bearing date the 25th of the Tenth Month, 1786, purporting to be the last will and Testament of one Jephtha Lewis, the father of the Appellant, to be proved as a good Will and Testament in writing, although it had neither been written, nor subscribed, by the supposed testator, upon the deposition of John Evans, a scrivener, that it was drawn at his request, and conformably to his instructions, but never read to him after it was written. This instrument contained a devise of real estate, and a legacy of £.400. for the use of a school, in the township of Gwyned, and county of Montgomery; and upon the validity of that legacy the present controversy arose.—It was proved by several persons, that the deceased, in the year 1784, had talked of leaving money to a school; that about three months before his death, he asked one of the deponents to be a trustee for that purpose; that some months before his death he remarked to another, what better could a man do with his money than to leave it to such a use? that he declared he did not intend all his estate for his child; that he spoke repeatedly of John Evans’s making his will; that for fear it should come to the knowledge of his family, he desired it to be left with John Evans; that being indisposed when it was drawn, he desired John Evans to call upon him again with it; that when John Evans called with it again, he was too far gone to read and attend to it; and that the disposition of the real estate contained in the paper produced, was the same which the deceased had, before his death, desired his brother to mention to “John Evans: But John Evans was the only witness who proved any instructions to have been given in respect to the legacy of £.400.—It appeared, likewise, that the same scrivener had drawn another Will for the deceased in the year 1779, which was left in similar circumstances, without the subscription of the testator, or any other attestation than that of the drawer; but this circumstance was made no use of in the argument.</p> <p>We contend 1st, That there is only one witness to prove the instrument in question; and, 2dly, That two witnesses are indispensibly necessary to the legal establishment of a last Will and Testament.</p> <p>I. The first point, arising from the facts, must be determined by the depositions; and, as no regard can be paid to a recital of the loose expressions which were used by the supposed testator, antecedent to the instructions for drawing his will, it is clear, that the only evidence to support the legacy in favor of the school, must be founded upon the deposition of John Evans, to whom those instructions were given.</p> <p>II. We shall proceed then, to consider the second point, which depends upon the construction of the Act of Assembly, passed in the year 1705, “concerning the probates of written and noncupative Wills, and for confirming devises of lands.” It is there said, that “all wills in writing, wherein, or whereby any lands, tenements, “or hereditaments, within this province, have been, are, or shall be “devised (being proved by two or more credible witnesses, upon their so-“lemn affirmation, or by other legal proof in this Pro-“vince &c.) shall be good and available in law, for the granting, “ conveying, and assuring of the lands, or hereditaments, thereby given, or devised, as well as of the goods and chattels thereby be-“qeathed.” 1 State Laws. 30. The question, therefore, rests upon the meaning of the words, or other legal proof in this province; and, in order to ascertain that, it may be proper to take a short, retrospective, view of the general doctine, respecting the legal attestation of Wills and Testaments. As the probate of Wills was not a matter originally of common law jurisdiction, the decisions have necessarily been drawn from the civil law, the ecclesiastical law, and the law of nations, engrasted upon the general customs of the realm of England. By the civil law, indeed, seven witnesses were required; but this excels being reformed, first by the ecclesiastical law, which required three witnesses in some cases, and only two in others, and then by the general customs of the kingdom, it is settled in the most authoritative books to be sufficient, that the will and mind of the testator should appear by two competent and disinterested witnesses. Swinb. 5. 6. 45. 46. 3 Salk. 396. For, the general customs of the kingdom are not further controuled, than by the jus gentium, which is likewise satisfied with the attestation of two witnesses. Swinb. 47. God. Orph. Leg. 3. 8. 10. and where, indeed, the disposition is for pious uses, the cannon law, in this respect, corresponds with the jus gentium, although for secular purposes, it still requires two witnesses, one of whom must be the minister. God. Orph. Leg. 8. 10. In the case of Codicils, the civil law required only five witnesses, but the law of England requires the same proof, as in the case of Testaments, that is two witnesses. id. 20. Two witnesses, therefore, are sufficient, and regularly two witnesses are also necessary to the legal proof of a last Will and Testament. Swinb. 343. 1 Equity. Abr. 5 Bac. Tit. Test. and it may be vain to have no more than one. Swinb. 65. Where children have been considered as incompetent witnesses to their father’s Will, a child, being the third witness, was adjudged as none, and the will set aside. 1 P. Wms. 10. 267. S. P. and the necessity of two witnesses to a Will, is an idea as ancient as the time of Glanvil. Glan. b. 7. c. 5. Nor does a prohibition lie to the ecclesiastical Court, for refusing, by one witness, to establish a testamentary writing. God. Orph. Leg. 66. 2 Burn. Ecc. Law. 243. 2 Salk. 547. Raym. 220. It is certain, that the statute of frauds has not made any alteration in respect to written Testaments of goods and chattels; and one witness, by the civil law, being as no witness at all, the proof of such a Testament can only be made by two sufficient witnesses. 2 Burn. Eccl. Law. 524.</p> <p>It is true, that we have produced no adjudged case, under the 32 Hen. 8. c. 1. shewing that two witnesses are necessary to establish a Will of real estate; but we have cited so many authorities of a date subsequent to the statute, which, in this point, make no discrimination between Wills of lands, and Testaments of chattels, that it may be fairly infered that the rule of proof, founded upon the jus gentium, and the general customs of England, is alike applicable to every species of testamentary writing. For the cause of the appellant, however, it is sufficient, that no doubt can remain of its strict and invariable application, in the case of Testaments for the disposition of personal property; and, being thus incontrovertibly established in that country, from which we have, in general, copied the principles and practice of jurisprudence, it will appear by various acts of the Legislature, antecedent to the passing of the law in question, and even by the original stipulations in England, that the necessity of two witnesses to the legal probate of a last Will and Testament, has been expressly recognized and adopted in Pennsylvania. Thus, among the laws agreed upon in England, it is provided, that “all “Wills and Writings, attested by two witnesses, shall be of the same “force as to lands, as other conveyances &c.” Prov. Law. in App. p. 4. art. 15. From which it seems to have been the intention of the Proprietary and first: emigrants, to obviate every doubt, and, unequivocally, to place the proof of wills of lands, upon the same footing with the proof of Testaments of chattels; and this stipulation was formally enacted into a law, soon after the meeting of the General Assembly of the Province. Ibid p. 7. c. 45. The law enabling Foreigners to devise lands, likewise makes two witnesses necessary to the Will.* Prov. Laws. vol. 2. p. 109. old Edit. Nay, the Legislature, at that day, carried the matter so far as to require the testimony of two witnesses in all cases. Prov. Laws, in app. p. 3. c. 36. Is it not, therefore, unreasonable to suppose, that it was intended, by the act of 1705, to relax the rules of proof on a subject of so much solemnity and importance, as a last Will and Testament?—and, more especially, when by the same law Sect. 6. it is declared, that no Will in writing, concerning any goods and chattels, or personal estate, shall be repealed by word of month only, nor shall any nuncupative Will be established, but upon the testimony of two, or more, witnesses? Sect. 3.</p> <p>This act then, must have proceeded upon the well known principles and decisions respecting probates; and the construction ought to be such, that no word should be rendered void, superfluous, or insignificant. Hence, by the words, or other legal proof, the proof meant by the Legislature, must be that, which the pre-existing laws and customs of England, had made necessary to a last Will and Testament, and not merely that, which is sufficient to convict a man of an offence, or to charge him with a debt: for, if this were not the meaning, it would be superfluous to say, that the probate shall be by two, or more, credible witnesses, upon their solemn affirmation, or by other legal proof, since the latter sentence would naturally comprehend and supercede the former. Such, indeed, has been the interpretation of the Register's Court of Pennsylvania, previously to the Revolution, by the decree of a gentleman of great professional abilities. Wm. West's case before the Register General of Pennsylvania, in 1773.</p> <p>But, when we consider the religious delicacy of those persons, who chiefly composed the Legislative body when the act was passed, may we not presume that this mode of expression has been used, in order, on the one hand, to assert the right of giving testimony upon solemn affirmation; and, on the other, to avoid the direct mention of testimony upon oath? This conjecture is, in some degree, supported by the circuitous manner in which many other acts of Assembly prescribe the forms of proof; Prov. Law. 2. 3. 4. 5. 5. 6. 20. 24. 25. 37. 37. 37. 42. 45. 45. for, the first time that an attestation upon oath is expressly mentioned, occurs in the year 1715, ten years after the passing of the law in question. Ibid. 76.</p> <p>If, then, laws which relate to the same subject, must be taken together, there can be no doubt from a connected view of the laws of England, the acts of Assembly cited from the appendix of the late Province laws, the different parts of the very act in question, and the practice of our Courts, that, whether qualified by affirmation, or by oath, two witnesses are necessary to establish a last Will and Testament, and without two there can be no legal proof. The witnesses, we admit, need not be present at the actual execution of the instrument: but, if it is written by the Testator himself, two witnesses must, at least, prove his hand writing; and if it be written by another person, two witnesses must prove that it contains his last Will and disposition.</p> <p>The Appellant in contravention of his father’s wishes and benevolence, endeavours to set aside the Will, in order to defeat the charitable donation which it contains: Should there be a doubt, therefore, upon the subject, it will operate against so ungracious an attempt; but we conceive that the strict principles of law will be a sufficient prevention. Before the statute of Wills, 32 Hen.8. c. 1. every man was at liberty to dispose of his personal estate; and as the disposition was, in that respect, governed by the civil and ecclesiastical laws, according to their institutions, two witnesses were necessary to the probate of every Testament.</p> <p>But when a statute, without saying any thing about the proof, gives a new power to devise, unknown in the civil and ecclesiastical codes, shall we resort to them, instead of the common law, to ascertain, in what form, and by what number of witnesses, the exercise of that power ought to be attested? This would surely be an absurd and improper deviation, since the Courts of civil and ecclesiastical law can only interpose with respect to Testaments of chattels, and cannot take cognizance of wills for the conveyance of lands. It may, indeed, seem strange, that two witnesses should ever have been requisite to the former, and only one to the latter: but they are matters not regulated by the same legislature; so that when the Parliament, authorizing a devise, requires two witnesses to prove it, this is not done because, in similar cases, the civil law requires a similar attestation, but on account of the fitness and expediency of the thing itself.</p> <p>It is true, however, that, as on the other side it has not been shewn that two witnesses are necessary, neither have we been able to discover a case, in which it is expressly adjudged, that, under the statute of 32. Hen. 8. c. 1. one witness is sufficient to establish a Will of lands: but, as all the authorities and abridgments that have been produced, refer exclusively to the case of a Testament of chattels, and are uniformly silent with respect to the disposition of real estate, it is evident that the writers regarded the separate jurisdictions, to which these testamentary instruments respectively belonged, and were aware of the different degrees of proof, upon which their authenticity depended. Besides the cases that have been already cited for the Appellant (which merely state, with some variations, that a notary having received instructions for drawing a will, and having accordingly drawn it, did not arrive ’till the party was dead) there are many others of a similar description. Vin. tit. Devise. pa. 117. pl. 2. 4. 5. 6. 14. 15. pa. 123. pl. 9. pa. 122. pl. 3. But, in this long catalogue, not a word is laid to shew, that two witnesses were present at the execution of the will, or heard the instructions which were given for drawing it. Nay, in an action brought by an Heir at law against a Devisee, we find that the instructions for drawing the will were given to an individual, and there is not the least intimation of another witness being present at any part of the transaction. Swinb. 56. Thus, likewise, when a man desired another to write his Will, who accordingly took short notes at the time, went home, and reduced them into form, but did not return ’till the Testator was dead, this, nevertheless, was adjudged to be a good Will within the statute. Swinb. 6. and even where the notes were not reduced to form, ’till after the Testator’s death, the Will was established, Swinb. 51. 56. 113. Cro E. 100. For, the principle is explicitly laid down in Blackstone, that “as to written Wills they need not any witness of their publication &c. A Testament of chattels, written in the Testator’s own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, is good: And though written in another man’s hand, and never signed by the Testator, yet, if proved to be according to his instructions and approved by him, it hath been held a good Testament of the personal estate.” 2 Black. Com. 501.</p> <p>The cases that are regulated by the statute of frauds, 29 Car. 2. c. 3. are clearly of no authority here; but those which have been determined under the statute of 32 Hen. 8. c. 1. are applicable to the Act of Assembly, and ought to govern in the exposition. By this statute, no proof of signing and attesting is prescribed, and, therefore, before the sailing of the act in question, though two witnesses were necessary to prove a Testament of chattels, one was sufficient, in Pennsylvania, to establish a Will of lands. What then is the change introduced by the Legislature? In the construction of statutes, every part must receive effect; for, it cannot be presumed that unnecessary words have been used; Cowp. 558, and, in order to give effect to every part, it is natural to enquire what was the subject under consideration, and what were the objects and intentions of those who framed the law? When, therefore, the Legislature was considering by what proof Wills and Testaments ought to be established, we may reasonably presume that they took into contemplation the general principles of evidence, and finding that presumptive proof, or in other words, such circumstantial testimony as satisfied the mind, was sufficient in every other instance, whether on a question of property or of life, might they not ask, why it should be rejected here? and, if a competent answer were wanting (as it certainly must be) would they not wisely resolve to destroy a distinction, for which there exists no solid foundation in reason, or the nature of things? The Legislature then, not implicitly adhering to the civil or ecclesiastical institutions, and placing the Probate of Wills of lands, and of Testaments of chattels, upon the same footing, have, in effect, declared that those instruments shall, if possible, be authenticated by two, or more, credible witnesses on their solemn affirmation; but, if this cannot be obtained, then, that other legal proof, or the same circumstantial and corroborative evidence, which decides the other most important interests of men, shall, in this case, likewise be received.</p> <p>Such, we contend, was the intention of the Legislature; and what constitutes legal proof, it is incontrovertibly the province of the common law, and not of the civil law, to judge and determine. Let us suppose that a man directs his Will to be drawn, that it is executed in the presence of the drawer, that the Testator informs his friends by whom it was drawn, and that, accordingly, after his death, it is found in the hand writing of that person:—under these circumstances, the confession of the party, corresponding with the testimony of the Scrivener, and corroborated by the hand writing, would certainly amount to legal proof, at common law; but, pursuant to the adverse doctrine, the will could not be established, for there are not two witnesses to the execution, nor to the instructions for drawing it. Again; if a man says, “my Will is in a certain drawer,” and, after his death, an instrument, purporting to be his Will, is found in that drawer; this, likewise, would be deemed legal proof and yet it wants the attestation of two witnesses. Or, suppose it had been laid, “I am going to my Notary to direct him to draw my Will, and I mean to give half my estate to A, and the other half to B.” if, after his death, the notary produced an instrument drawn in that manner, the circumstances of the case would furnish a legal proof, but still there are not two witnesses to the Will.</p> <p>If two witnesses are required in all cases, the act must be taken to intend, witnesses present at the execution of the Will; and so the expression or other legal proof becomes insignificant and nugatory. Nor, confidently with the rules of grammar and construction, can the argument be admitted, which is founded upon the religious scruples of the Assembly that passed the act; for, if the Legislature sought to avoid the mention of an oath, the sentence must have been differently arranged, and would probably have run in this way; “Wills &c. being proved on the solemn affirmation, or other legal proof, of two or more credible witnesses, &c.” but, as it now stands, the Appellant’s interpretation is strained and improbable; while the latitude, for which we contend, is not without precedent: for, by the statute of James I. the mother of a dead child, which, if it had lived would have been a bastard, is required to give positive proof by one witness, at least, that it was born dead, or she shall suffer as in case of murder; yet, in trials under this law, circumstantial evidence has always been admitted here, as well as in England, to work an acquital. This is, indeed, a penal statute; but there is nothing which the law regards more favorably than a last Will, and Judges have ever been folicitous to support the intention of the Testator.</p> <p>Is there not sufficient evidence, then, that the Will in dispute, contains the intention of the Testator? Every part of it, except that which relates to the legacy of £.400; is directly proved by two witnesses, the Scrivener, who drew it, and the Testator’s brother, who carried the instructions; and, even with respect to the legacy, there is the positive testimony of one witness, corroborated with such circumstances as force conviction on the mind—such circumstances as ought, we say, to be received, under the act of Assembly. The Testator, avowing that he did not mean to leave all his estate to his children, had for years before his death uniformly declared his intention of bequeathing a legacy for the benefit of a School; and but a few days before he expired, he requested one of the witnesses to be a Trustee for that use. When, therefore, we find the same intention expressed in the instrument produced, and the Scrivener deposes that it is expressed conformably to the instructions he received, there cannot be a doubt of our being in full possession of the last Will and Mind of the Testator. The Will is, therefore, clearly established by legal proof within the letter and spirit of the act; which, by thus using a comprehensive, though plain and satisfactory, mode of expression, intended to obviate the many mischiefs that had arisen, from the strict rules of proof required by the civil and ecclesiastical law.</p> <p>It is conceded, that, according to the law in England, a Testament of chattels must be proved by two witnesses; but it is argued by the adverse counsel, that under the statute of 32 Hen. 8. c. 1. a Will of lands is sufficiently proved by one witness. In this we cannot agree; for, none of the cases, cited on the part of the Appellee, relate to the solemnities of making a Will, or the degree of proof that is required: the only point agitated or determined in any of them, is, whether the instrument in question be a good Will in writing, or not? and though there is no express adjudication upon the subject, we find it said that two witnesses are necessary to a Will, saving that, in case of land, the solemnity of writing is also necessary. Swinb. 6. which is a strong implication in favor of the Appellant’s doctrine.</p> <p>But the present controversy must be decided, after all, by the act of Assembly, which was made with a full knowledge of the ideas and determinations in England, relative to the probate of testamentary writings; and there appears from the several prior acts of the Legislature of Pennsylvania, a fixed intention to adopt the practice of that country. If, indeed, by the words, or other legal proof less than two witnesses were meant, this absurdity will be obvious, that in the first part of the sentence, we are called upon to prove the Will by two, or more, credible witnesses, upon their solemn affirmation; and that in the close of it, we are allowed to make the proof by one, or less than one, witness, that is by circumstances which satisfy the mind; so that the words—“ two or more witnesses”—are by such construction satisfied by a proof of “ two or less than two witnesses.” Thus, likewise, the testimony of two witnesses, or of less than two, under any circumstances, is made tantamount to the testimony of two or more witnesses, upon their solemn affirmation;—a concession which, it is not probable, a Legislature, composed of Quakers, would have been easily induced to make. On the contrary, the design of this clause seems to have been, to prevent any doubt of a man’s right to deliver his testimony, conformably to the dictates of his conscienscious scruples; and, having provided that the proof might be made by two, or more, credible witnesses, upon their solemn affirmation, it was necessary to proceed to admit other legal proof; for, if the Legislature had flopped there, an affirmation would be the only form of attestation by which a Will could be established; and as the law allowed no person to affirm, who was not conscientiously scrupulous of taking an oath, it follows, generally, that none but a Quaker could be a witness to a Will.</p> <p>Certain it is, therefore, that other legal proof, is placed in opposition to solemn affirmation, and not to the number of witnesses; and the clause, fairly construed, amounts to this, that “Wills &c. being proved by two, or more, credible witnesses, upon their solemn affirmation, or by two or more credible witnesses, under any other legal qualification, shall be good and available in law;”—the same number of witnesses being necessary to the probate, whatever may be the form of attestation.</p> <p>This construction is perfectly conformable to the caution and to the liberal principles of the Legislature of that day. They first take care to establish a mode of proof according to their own religious persuasion, and then, under the general expressions—“other legal proof”—would admit all modes of attestation, which either the laws of that day, or any future time, should recognize.</p> <p>Without such precautions, how precarious would be the situation of property! In the last moments of life, when the body is depressed with sickness, the understanding impaired by age, and the mind agitated with doubt and apprehension, we may easily conceive the successful operations of artifice and fraud. The government of every wise and enlightened nation has endeavoured, therefore, to protest the imbecility and weakness of that state, from the force or cunning of interested men: nor is it just to the reputation of this country, to suppose, that her Legislature alone, has left the proof of the last, and most solemn, act of her citizens, to mere circumstances and conjecture.</p>

<p>THE Plaintiffs in Error had executed a Bond, bearing date the 23d of October, 1784, to the Defendant, with a warrant to confess Judgment thereon, directed "To Wm. Lewis, Attorney of the "Court of Common Pleas at Newtown, in the county of Bucks, or to "any other Attorney, of any other Court, and at the same time a “mortgage of lands in the same county, as a collateral security.” The Judgment was entered in the Supreme Court, as of Bucks county of September Term 1787; whereupon a writ of Error was sued out, in order to set the Judgment aside, and the following errors assigned:</p> <p>1st. That the Judgment was entered in the Supreme Court for a debt which arose before the passing of the Act of Assembly, that gave original jurisdiction to the Supreme Court, in the county of Philadelphia.</p> <p>2dly. That the warrant of Attorney did not authorize the entering up the Judgment in the Supreme Court: and</p> <p>3dly. The general errors.</p> <p>To which in nullo est erratum was pleaded.</p> <p>I. That the Supreme Court never had original jurisdiction ’till the late law; for, the act by which it was instituted, gives only an appellate jurisdiction: 1 State Laws. 114. 115. Sect. 11. and that it was evidently the intention of the Legislature to confine, even the exercise of that power, to suits exceeding £.50. Ibid. 338. 9 Sect. 4. He insisted, that the Act of Assembly giving the original jurisdiction, likewise furnished a satisfactory inference, that the Court did not previously possess it; but that, at all events, after that act was passed, no action, for any antecedent debt or cause, could be brought in the Supreme Court; nor, even for debts arising after that act was passed, in any other county than Philadelphia. 4 State Laws. 154. Sect. 4. 5.</p> <p>II. On the second error, he stated, that, as it was an error in fact, the Defendant’s plea had allowed it; for, if the Plaintiff assigned error in fact, and error in law, the Defendant ought to join issue as to the fact, and plead in nullo est erratum as to the matter of law; but if he pleads in nullo est erratum only, he admits the facts, and the Judgment must be reversed. 2 Bac. Abr. 218. He waved this advantage, however, and contended, that the warrant, authorizing any Attorney, to enter up the Judgment in the Court of Common Pleas, of Bucks county, could not be extended to authorize the entering it up in the Supreme Court: for, where an inferior thing is mentioned, a superior cannot be intended. 2 Co. 46. and such has been the uniform determination of the Judges. 2 Inst. 457. 8. The warrant of Attorney gives a bare authority, which ought to be strictly pursued; and, though directed to any Attorney of any other Court, this cannot be taken to mean of a Superior Court, but only Courts of equal and concurrent jurisdiction. Nor can the jurisdiction be given by consent (which he said, however, was not the present case) for, common recoveries are certainly actions by consent, and yet it was necessary that a law should expressly vest, in the Supreme Court, a power to entertain them. 1 State Laws 224. But the intention of the parties appears by the mortgage, as well as by the Court specified in the warrant, to have been to bind only the estate in Bucks county; whereas, by entering up the Judgment in the Supreme Court, a lien is obtained upon the lands of the Plaintiff in error; throughout the State.</p> <p>I. That it had been long a question, whether the Supreme Court had original jurisdiction before the passing of the late law; but, even resolving that point in the negative, he contended, that the Court might receive and sustain a cause under the peculiar circumstances of the present case. For, being an action of debt, it was, in its nature cognizable there, and no law prevented the parties from confessing Judgment, by consent, without the trouble and expence of an original. This was not, therefore, to be construed into an exercise of original jurisdiction; but merely a passive acquiescence in the agreement of the parties, to enter a Judgment upon the records of the Court. Such, he said, had been the old and constant practice in Pennsylvania, both before and since the revolution, as well with respect to the confession of Judgments, as to the entering of amicable actions; and if the matter were to be traced, the titles of many real estates would be found to depend upon its legality—so that the greatest disorder and uncertainty would be introduced by a contrary determination at this time. If, then, it was never doubted that the Court had a sufficient authority to compel the parties to perform an agreement, a fortiori, they may compel the performance, when the agreement is made with the solemnities of a warrant of attorney, and under circumstances which would otherwise be attended with the most pernicious consequences.</p> <p>II. With respect to the second Error, he said, that, if it were necessary, the Court would permit him to alter his plea; but as it had been agreed to discuss the validity of the warrant of Attorney on the present issue, he should contend, that the cases cited did not support the objection. He admitted, that when an act of Parliament entered into an exact enumeration, and it appeared from the subject, that nothing more was intended, than what was expressed, there the rule prevailed, and a recapitulation of inferior things, could not, by implication, affect things of a superior nature. But when an act contains general and comprehensive words, which indicate an intention to embrace a higher object, he insisted, that the spirit and meaning of the law, was not to be fettered by the mode or expression. This controversy, however, he distinguished from the case of statutes; for, he said, it did not arise on the construction of an act of Parliament, but whether an instrument, executed by an individual, was sufficient to authorize certain proceedings. It was, therefore, a matter of a private nature, and must be construed, as all contracts between Debtor and Creditor are construed, that is, according to the true intent and meaning of the parties. The form of the warrant is the same that has been used for more than a century past; it is general; it is comprehensive; and it has ever been taken in that sense, which gives the greatest benefit to the obligee, that can be obtained from the confession of the Judgment. The late act of Assembly (passed September 1786,) which gives original Jurisdiction to the Supreme Court in Philadelphia, in Sect. 4. plainly supposes the causes to be such as are instituted by Capias, Summons, Attachments, Scire facias, Partition, or Dower; all which modes are particularly specified; and it certainly holds forth no idea to prevent an amicable suit being entered, or a Judgment being confessed, by a special warrant of attorney, as in the present case. It was natural to specify the Common Pleas of Bucks county, because the parties lived in Bucks, and the estate, upon which the mortgage was given, lay in that county: but it was certainly in the power of the Obligor to give authority to enter Judgment in any Court within the United States—from the nature of the contract it must be presumed that he intended to do so, as well as from the terms of the warrant, which authorize the entering the Judgment in any Court in America; and, agreeably to the established practice and interpretation of such warrants of Attorney, the Judgment has been confessed in the Supreme Court.</p>

<p>THE parties, having consented to a reference, filed a written agreement appointing three persons, without saying or any two of them, to report; but the Clerk, in making out the rule, had so expressed it. The three referees met, though only two of them signed the report; and now Lawrence moved to set it aside, on account of this variance between the rule and the agreement of the parties, offering to examine a witness, who was present at the transaction, to shew that it was intended all the referees should concur. See Fitzg. 215.</p> <p>objected; and said, that where parties have reduced their agreement to writing, particularly in the case of a record, nothing by way of addition or alteration was admissible. To prove a name meant, or a fraud committed, and some other similar circumstances, were, he insisted, the only exceptions to this principle.</p> <p>But, by the Court:—The question is not, whether parol testimony shall be given against a record; but whether the agreement filed in the Court, was a sufficient authority to the Clerk to make out the rule to any two of the referees. If this was his mistake, it certainly ought not to bear against the Defendant.</p> <p>The witness being examined, and having proved the Defendant’s allegation, the opposite counsel contended, that as the rule had been before the Referees, and was inspected not only by them, but by the parties, it was too late to make the objection; for, it would be unjust to allow this advantage to the Defendant, after the whole business had been discussed, and the report agreed upon.</p> <p>proposed reading some cases to shew, that the authority given to the Referees by the act of the parties, ought to have been strictly pursued.</p>

attempted to establish this distinction, that, in Millar versus Hall, the Defendant was a citizen, of Maryland, and that the money, for which the action was brought, had been received in Baltimore; but that in this case, Young, though sometimes in Maryland, was, in fact, a citizen of Pennsylvania, and that the debt was contracted here.

<p>THIS was a Foreign Attachment returnable to December Term 1787, in which Judgment had been entered agreeably to the act of Assembly.</p> <p>now moved for a rule to shew cause, why the attachment should not be quashed; observing, that if the same thing might be done in a circuitous manner, he supposed it could not, in this way, be deemed too late: For, upon entering special bail, the Plaintiff might be called on to shew cause of action; end attachments are often set aside where no cause is shewn.</p>

ON a rule to shew cause, why the arrests in these actions, should not be set aside, it appeared, that Eckart, being the Lieutenant of Bucks county, came to Philadelphia in order to obtain from the Executive Council the commissions of some Officers of the Militia within his department; that Bower, being one of the Sheriffs elect of the same county, came for the purpose of soliciting his commission, and giving the usual security; and that while here for these respective…

ABOND and Warrant to confess Judgment had been executed by the Defendant for £.600.

TRESPASS vi et armis. Capias returnable to this Term. Howell moved to quash the writ, the Defendant being a Freeholder. Millegan objected that this was a case excepted by the act; a fine being due to the Commonwealth, upon the Judgment capiatur pro fine, in actions vi et armis.

<p>THIS was an appeal from the Orphan's Court of Philadelphia county on the following case. Brown, having received £400. on account of the estate of his Testator Edgar, paid it over (according to his uniform practice upon such occasions) to his Co-executor Dogherty. In Brown's books this money was charged, generally, as so much cash paid to Dogherty; but, in Dogherty’s books, credit was given for it on account of the estate of Edgar. Dogherty became insolvent; and upon a settlement of Brown's administration, the Orphan's Court refused to allow him the £400. thus paid over to his Co-executor; but charged him with the principal sum, and interest from the time he received it, ’till the year 1770, (nine years) dropping the interest from that time ’till 1781, and afterwards reviving it.</p> <p>It was argued in January Term by Wilcocks in support of the appeal, and Lewis against it; when three points were made; 1st, Whether, the money was a loan to Dogherty, or a payment to the estate of Edgar; 2d, Whether, if it was a payment to the estate of Edgar, Brown was thereby discharged; and 3d, Whether interest was payable to the residuary Legatees, who were the Appellees upon this occasion.</p>

THERE was a report in this cause, and at the distance of a month, after Judgment nisi had been entered, the Defendant filed reasons in exception to the report.

THIS was a Certiorari to one of the Justices of the city and county of Philadelphia, and the proceedings being returned, it appeared, that Plowman, the Defendant, before the Justice, had appealed to the Common Pleas and entered security agreeably to the act of Assembly; but on a certificate from the Prothonotary of that Court, that the appeal was not filed, the Justice issued an execution against the Defendant.

<p> THIS was an action upon a Policy of Insurance on the Brig La Catiche; and the circumstances of the case, as far as they respect the decision of the Court, were these:- </p> <p> The Brig having sustained considerable damage by a storm, the Captain, who was also a part owner, was compelled to deviate from his proper voyage, and, accordingly, bore away for Cape Francois. When he arrived there, on the 28th day of August, 1784, he delivered a procês verbal (which had been drawn up at sea, recently after the storm) into the Admiralty, in order to obtain a survey of the vessel; but this instrument was merely a relation of facts, unattested by the oath of the Captain, or of any of the Mariners, who had subscribed it as witnesses. A copy of it being afterwards, however, brought to Philadelphia, the Captain alone, on the 4th day of December 1784, went before a Notary Public of this city, and in form of a protest swore to the authenticity of the copy, and the truth of its contents. </p> <p> When the present action was instituted, a commission issued to obtain a transcript of the proceedings in the Admiralty of Cape Francois; and the procês verbal being returned with the other other official documents, certified by the Judge under the seal of that Court, the Plaintiff's council at the trial, which came on the 4th of July, offered to read it in evidence to the Jury. </p> <p> But, it was objected, by the other side, that the procês verbal, taken by itself, was not admissible as evidence, because it had not been rendered upon oath; and that, even connecting it with the subsequent protest at Philadelphia, it ought, nevertheless, to be rejected; because no protest is valid to this purpose, that has not been made at the first port in which the Captain arrives after a misfortune has happened to his vessel. See Westcote 432. 1 Mag. 87. Beawes 140. </p> <p>The Plaintiff's counsel, in reply, observed, that although the strict formalities required in this country, had not been pursued, yet if the proceeding was conformably to the lex loci it ought to be received. They contended, therefore, that as the procês verbal was lodged in a competent office, and is duly certified under the seal of the Admiralty, this Court, in respect to a foreign jurisdiction, is bound to presume that it was regularly taken according to the laws of France. Besides, the rule in regard to all exemplifications, rendered it necessary that the whole record should be transmitted and certified; and, whatever may be its weight and effect, the whole ought also to be submitted to the Jury. See Valinés Ord. de Fr. 190. Doug. 554. Parke’s Insurance 404. Bull. N. P. 227.</p>

<p>THE Venue in this case was laid in Philadelphia, and Judgment being entered, an execution was thereupon issued immediately into Bucks county.</p> <p>obtained a rule to shew cause, why the execution should not be quashed, alledging that it ought to have been preceeded by a Fi. fa. in the county where the Venue was laid, in order to ground a Testatum into Bucks.</p> <p>in shewing cause, contended, that the act of Assembly had departed from the practice in England; and that in directing a Testatum it referred only to the Courts of Common Pleas, which are limitted in jurisdiction to a single county: That the same act established the jurisdiction of the Supreme Court, and made it co-extensive with the State; and that, therefore, as the Legislature was silent with respect to issuing a Testatum from this latter court, it was fairly to be inferred, they did not mean to require it. He further insisted that the practice supported his construction, and that a deviation from it would be attended with great delay and injustice: for, when the act was passed, although a Testatum might issue in three months from a Court of Common Pleas, it must have been suspended for six months in the Supreme Court; and thus a debtor would have it in his power to give an unfair preference to creditors in the County where he lives.</p> <p>stated, that the Supreme Court has powers similar to the Courts of King’s Bench and Common Pleas in England, and that the course of practice, with respect to a Testatum, had always been the same. But, he contended, that unless the act of Assembly had expressly extended the power to the county courts, they could not have proceeded by Testatum, to execute out of their immediate jurisdiction; which is the true reason why the Legislature takes notice of the writ in one case, and not in the other.</p> <p>Upon a question from the Court, Mr. Burd, the Prothonotary, said that previously to the Revolution, the proceeding, in such cases, had always been by Testatum; though since that period a different practice had been introduced by some of the attornies, contrary to his opinion.</p>

IN this cause there was a rule to try next term, or non pros; the term being clapsed, Levy, at the settlement of the docket, signed the non pros in the Prothonotary's office; and now Armstrong moved to set it aside.

RULE to shew cause why the Capias issued in this case should not be quashed, the Defendant being a freeholder. As the Plaintiff had delayed issuing process until within three or four days of the term, he could not issue a summons, (which, must be, at least, ten days before the return) but he had directed the Sheriff to accept the Defendant’s appearance, by an indorsement on the Capias.

<p>THIS cause came again before the Court, in consequence of the former decision, that, on the rule to shew cause why the writ should not be quashed, “ the Defendant may controvert the fact of his not being resident in the State for two years next before the writ issued,” which was stated in the deposition filed on the part of the Plaintiff, in order to ground a Capias against him, notwithstanding his being a freeholder. See ant 241.</p> <p>Sergeant now produced an additional affidavit, setting forth, that the Defendant had left this State, and resided in Georgia (where he had a considerable property) for upwards of fifteen months, next before the writ issued.</p> <p>In opposition to which Lewis examined a witness, who proved that the Defendant had a real estate in Chester county, whereon his wife and several children constantly resided; that he had expressed an intention of selling his property in Georgia; that he never meant permanently to reside there, but went thither upon particular business; and that as soon as that was transacted he designed to return to his estate and family in Pennsylvania.</p>

THIS was an action against the Sheriff for taking insufficient sureties on a replevin bond; and the question materially discussed on the trial, was, whether a Sheriff is responsible that the sureties shall prove sufficient on the event of the replevin; or only that they were of good credit at the time of their entering into the bond? observed, that the Defendant in replevin could not controul the Sheriff in accepting or rejecting the sureties, and, therefore, he ought not,…

<p>This was an appeal from the Orphan’s Court of the county of Philadelphia.</p>

THESE actions were brought upon three promissory notes, two of which (included in one declaration) had been indorsed to the Bank; and the third was in the possession of Messrs. Hartshorne and Large, as a collateral security from the Plaintiffs, for the payment of a debt amounting to nearly the sum mentioned in the note.

HENRY STARRET, while attending the Court as a suitor, was taken by a Ca. Sa. and Chambers moved that he might be discharged from the arrest, citing 4 Bac. 421. 3 Bl.

<p>ON a rule to shew cause why the Defendant should not be discharged on common bail, M'Carty stated in his deposition, that, being considerably embarrassed, he had, according to the laws of France, declared himself a bankrupt by filing a statement of his debts and credits, and delivering all his books and papers into the Consular Court of L’Orient, for the benefit of his creditors; the principal part of whom, in consequence of this surrender, had met together, appointed Trustees, or Syndics, in the usual form, and then granted him a letter of licence for three years, together with a power of attorney, to collect his outstanding debts in America, in order to remit the same for their use; stipulating, however, that he should return to France within one year from the time of his departure. The Plaintiff, among others, had proved and registered his debt in the Consular Court; and, it was agreed by the Counsel for both parties, that, on a surrender of this description, it three fourths in value of the creditors had consented to the Defendant’s discharge, the agreement or composition by them signed, being homologated, that is to say, recorded and confirmed by the Court of Parliament, (which is a matter of course unless fraud is shewn) became by the lex loci obligatory upon the non subscribing creditors.</p> <p>contended, that it was settled by the decisions in Millar v. Hall (ant. 229.) and Thompson vs. Young (ant. 294.) that a discharge under the laws of one country, operated as such in every other; and he offered to prove by the testimony of the Defendant himself, that three fourths in value (the deposition only stating that the principal part) of the creditors had agreed to the composition at L’Orient; observing, that, if this would be sufficient to induce the Court to order an Exoneretur after judgment, it would also be sufficient to induce them to discharge the Defendant in the present stage of the cause.</p> <p>Du Pon teau, having read a positive affidavit of a subsisting debt, opposed the admission of the Defendant's testimony. He said, that, even if M'Carty's discharge according to the lex loci could be actually proved, it would not operate against the Plaintiff on a motion of this kind. The mutual spirit of intercourse among nations has, indeed, introduced a more liberal idea of the cessio bonorum; and, upon the trial of the cause, such proof would probably be fatal to the Plaintiff’s demand: but, whether he is, discharged, or not, is a matter of fact, to be decided by the verdict of a jury; Salk. 100. and to deprive the Plaintiff of special bail, at this time, would not only be an illegal anticipation of that decision, but, in effect, a denial of justice, as it appears that the Defendant is under an obligation to repair shortly to France, and would probably never venture again within the jurisdiction of this Courts.</p> <p>He contended, however, that, even by his own shewing, M'Carty had not been discharged in France; and represented, that the proceedings in the Consular Court amounted to no more than an inchoate bankruptcy; for, the concurrence of three fourths in value of his creditors to the composition alledged, and the homologation or confirmation thereof by the Parliament, being an indispensable requisite to his discharge, ’till that was established, it could not, avail the Defendant that he had made a surrender, or that the Plaintiff had proved his debt, any more than the surrender of a bankrupt here, or the proof of a debt under the commission, would be sufficient to preclude a creditor from his remedy at law, before a certificate was actually granted.</p> <p>Nor is the Defendant’s testimony, he urged, competent to prove the sail, which, by the lex loci, operates as a discharge; it is a matter to be shewn by an exemplification of the foreign record; when, perhaps, it may be tantamount to a bankrupt’s certificate; or, with stricter analogy, it may be compared to the case of a discharge under the composition law of England; and he cited a case which he said was exactly in point from Salk. 99. pl. 7, where the Court, on a question of bail, would not allow the Defendant to shew that he had obtained his discharge under that act, and that the Plaintiff was bound, though a non subscriber, to the composition.</p> <p>said, that he did not mean to contend, that the debt was discharged; but only to shew, by the testimony of the Defendant, a collateral fact, which entitled his person to an exemption from arrest in the present case. He agreed that the proceeding amounted only to an inchoate bankruptcy under the insolvent laws of France; but, he insisted, that it would be cruel and unjust to allow the Plaintiff all the advantage of his concurrence there, and likewise the benefit of special bail in an action here. Although it may be true, therefore, that the Defendant had not yet received what would amount to a certificate, yet, as he has surrendered all his effects, muniments, and vouchers, to the proper officers, for the benefit, and with the knowledge and approbation of the Plaintiff, as well as his other creditors, the Court will not suffer the oppression that is now attempted, but rather incline to hear the Defendant in favor of the rule; and, if it can be shewn that three fourths in value of his creditors have agreed to his discharge, the established principles of law will protect him here from the molestation of a refractory individual.</p>

ON a motion in arrest of judgment after a verdict for the Plaintiff in this cause, it appeared, that the Defendant had given his note of hand to one Jesserow, which was expressed in these words: “I promise to pay, or cause to be paid, unto George Jesserow, or “order, the full sum of £.20. against or before the 27th day of “November, 1785.-This note was afterwards sold and delivered, for a valuable consideration, by Jesserow to the Plaintiff, but without any indorsement or…

THE case was briefly this:-A certain Aaron Musgrove had brought a qui tam action against the Defendant, Ann Gibbs, in which, after a trial in the Supreme Court, he obtained a judgment on the second day of October, 1788; but no execution was thereupon issued.

THIS was a Foreign Attachment, in which judgment was entered at the third term; and a writ of inquiry being afterwards executed, a motion was made, on behalf of the Defendant, to quash the return, because the Sheriff and Inquest had refused to hear his evidence at the time of executing the writ.

On a rule to shew cause why the Judgement confessed by warrant of Attorney in this case Should not be opened, Fisher stated that several partial payments had been made by the Defendant, which the Plaintiff had applied first to the discharge of the arrearages of interest; whereas he insisted, that it ought first to have been deducted from the principal debt. insifted that the practice was the same at the present day, and appealed to the Attornies in Court, who confirmed his…

<p>THERE had been a levy upon lands by virtue of a Fi. fa. issued in this case, returnable to the present term; and now, on Levy’s motion, the inquisition, which had been been held upon the value of the lands, was quashed.</p> <p>It then became a question, whether a new Fi. fa. must be issued; or whether the Sheriff might proceed, after the return of the former writ, to take a new inquisition without further process?</p>

THIS was an action brought by the Plaintiff to recover his wages as mate of a vessel, or which the Defendant was master, and one Sadlier was the owner.

<p>MOYLAN had entered a rule for trial at the last term or Non-pros. The rule being continued ’till this term, a plea was added, and particular facts referred; and upon these a report had been made a few days before the day appointed for the trial of the cause.</p> <p>now objected, to the trial’s coming on; and Moylan insisted that he was entitled to a Non pros.</p>

THIS was a Certiorari to one of the Justices of Chester county. On arguing the case, the judgment of the Justice was affirmed :

<p>THIS was an issue joined on the facts alledged in a libel for a divorce; and, upon the trial, the Chief Justice observed, that notice ought to be given of the facts intended to be proved under the general allegations of the libel.</p>

THIS was an action on a policy of insurance, the trial of which, offered to read in evidence a special verdict that had been given in another action upon the same policy, but against a different underwriter. that the verdict was given between other parties, and, therefore, not admissible; upon which Lewis proved an agreement of all the underwriters to be bound by one verdict.

THIS action being referred by consent, the following report was made:—“The Referrees upon full consideration of all “ the circumstances, are doubtful as to the law upon one point, “ and have agreed to make their award special, subject to the opi- “ nion of the Court. “ The case submitted to them appeared to be as follows:—On “ the 16th of March, 1773, Robert Callender was indebted to James “ Hamilton in the sum of £2120. sterling, for which he gave to “ the said James…

THE Plaintiff was examining a witness to prove the purpose of an order given to him by the Adjutant General, during the late war, for the restoration of his horse, saddle and bridle, which had been seized by the Defendant, as the property of a disaffected person, although upon trial the Plaintiff was acquitted, when Levy objected, that the order itself ought to be produced, or some account given of its loss, before the witness was admitted to give evidence of its contents.

THIS cause had been referred, and the Referees, having examined the evidence in presence of both parties, agreed upon their report; but about an hour before it was delivered into Court (though it was signed the preceding day) J. B. M'Kean, on behalf of the Defendant, had obtained a rule to shew cause, why the rule of reference should not be struck off. There was no charge of irregularity or partiality against the Referees; the rule to shew cause was discharged.

<p>SCIRE Facias on a mortgage of lands in Northampton county. The cause was tried at Easton, when a verdict was taken for the Plaintiff, subject to the opinion of the Court, on the following case:</p> <p>“ That the Defendant, Wood, on the 20th of June, 1776, made and executed the mortgage deed in the record set forth ; and, on the 5th day of July, 1776, acknowledged the same before Peter Kuchlien, Esquire, then holding a commission as one of the Judges of the Court of Common Pleas for the county of Northampton, from John Penn, Esquire, late Governor of the Province of Pennsylvania; but he had not received any such commission after the declaration of Independence, nor any notice of that declaration.</p> <p>“ That the said mortgage was afterwards, to wit, on the 3d day of November, 1776, recorded by Lewis Gordon, Esquire, in the record book kept for recording deeds and mortgages in the said county, he, the said Lewis, at the declaration of Independence being Recorder of deeds in and for the said county, and continuing, as such, to do and perform the duties of the said office, until the said 3d day of November, and after; but he had received no commission for so doing after the 4th day of July, 1776.</p> <p>“ That the said mortgaged premises were afterwards taken in execution, set up to sale, and sold by the Sheriff of the said county to G. A. Baker under certain conditions, and at the time of the deed from the Sheriff to the said G. A. Baker, an agreement was made relative to the premises in case the said mortgage should be adjudged to be valid.</p> <p>“ That the Defendant, Jacob Wood, at the time of the said purchase made by G. A. Baker, was indebted to the said G. A. Baker, by judgment entered in the Common Pleas of the said county, prior to the aforesaid sale by the Sheriff, and to the Plaintiff’s judgment against the Defendant. And that G. A. Baker knew of the said mortgage before the contracting of the said debt to him.</p> <p>“ If, upon the whole matter, the Court shall be of opinion that the law is with the Plaintiff, then judgment to be entered tor him; otherwise, judgment to be for the Defendant as in the case of a nonsuit ”</p> <p>The question was, whether a mortgage, acknowledged before a Justice of the Common Pleas, and recorded by the Recorder of the proper county, subsequent to the declaration of Independence, was void ?—the Justice and the Recorder having no other commissions, than those which they had respectively received from the late Governor of the Province, previously to such declaration.</p> <p>For the Plaintiff, it was urged, that, although the statute of 4 and 5. W. and M. c. 20. enacts, that, unless a judgment is docqueted, it shall not affect purchasors; yet judgments have been held good, in a variety of cases, contrary to the letter of the act: 2 Eq. Cs Abr. 684. And equity will supply a defect in a mortgage. 1 Eq. Ca. Abr. 320. The authorities cited in Levinz v. Willant. 430. on the point of notice, are equally applicable here: And, even if the Justice Would have had no authority to take the ackowledgement of the deed, after notice of the declaration of Independence, the want of such notice is sufficient to justify him. Besides, during the same period, a considerable number of deeds were recorded, (which was proved by the Recorder of deeds for the city and county of Philadelphia) so as to render it necessary at lead to apply the maxim of communis error facit jus, to cases of this description. Lloyd v. Taylor ant. 17. The mortgage, according to common acceptation, was duly acknowledged and recorded; and, as the record of a mortgage could only be required to give a constructive notice to subsequent purchasors, the spirit and meaning of the law is satisfied by the actual notice which G. A, Baker had of the deed. See 2 Eq. Ca. Abr. 482.</p> <p>For the Defendant, it was contended, that, in Strict law, the acknowledgement and recording before; officers whose commissions were expired, did not make a valid acknowledgement and recording of the mortgage; so that by the act of Assembly 1 State Laws 79, the mortgage was absolutely void: And that, in point of equity, as the mortgage might have been recorded in the proper office after the 14th of March. 1777, the Plaintiff had neglected a fair opportunity of giving legal notice of his lien, for want of which the Defendant had been induced to lend his money, and that, therefore, the Plaintiff, and not the innocent purchasor, ought to suffer; for a judgment creditor is within the equity of the rule in favor of purchasors. 19 Vin. When, indeed, it is impracticable to comply fully with a law, the compliance should be as near as possible; and, from the act passed on the 23d of September, 1783, the Legislature evidently considers acts done by officers under the Provincial Government to be void; for, at the same time that provision is made for enlarging the time of recording mortgages, executed between the 1st of January, 1776, and the 18th of June, 1778, (which was the case of the mortgage in question) there is a positive reservation in favor of judgments, and other liens, obtained during the intermediate period, and before the record was actually made. 3 State Laws 227. But this more conclusively appears from the adds of the 28th of January, 1777, and the 31st of August, 1778, when all officers (with some specific exceptions) under the former government are totally disqualified, and considered as having been incapable of discharging the functions of their respective offices. See 1 State Laws 3. 137.</p>

THIS was a Scire Facias against the Garnishee in a Foreign Attachment, upon the trial of which the confidential agent, or factor, of the original Defendants, who was casually attending in Court, was offered as a witness to prove effects in the hands of the Garnishee. objected to the admission of the witness; and contended, that he ought not to be allowed, or, at least compelled, to give evidence of matters confidentially communicated to him as an agent; and that the Court…

REPLEVIN. The material question, on the trial of this cause, was, Whether the goods of a stranger, being removed from the premises before a distress, could be pursued and seized, within the thirty days, which the Act of Assembly allows for pursuing and seizing the goods of the Tenant? See 1 State Laws, 433, &c.

THIS was an action of Covenant, and the circumstances under which it came before the Court, were these: The plaintiff filed a declaration in the following words; Joseph Lynn, late of the county of Philadelphia, yeoman, was sum moned to answer James Cummings, assignee of James Campbell, and Stephen Kingston, who were assignees of George Turner, of a plea that he hold with him the covenants and agreements of him the said Jo- seph with the said George made, according to the…

DOMESTIC ATTACHMENT.—This cause being removed by Certiorari from the Common Pleas, now came before the Court on the following Case, stated for their opinion: “ The term of September, in the Common Pleas for the county of “ Philadelphia, in the year of our Lord 1782, began on the 4th day “ of September, and on the 16th day of September, in the same year, “ Judgment was entered in the Court aforesaid, in an action then “ depending at the suit of the Plaintiff, above named,…

Error from the Common Pleas of Philadelphia County. On the trial of the cause below, (See ant. 226) a bill of exceptions was taken to the opinion of the Court in the following words: “ Trespass sur le Case, in the Common Pleas, Philadelphia County: And now the 6th day of February 1788, upon the trial of this cause, the Council for the Defendant, under the Pleas of Non As- sumpsit, payment, and defalcation, and, in order to maintain the fame issue, offered to give in evidence…

<p>the rule to stay proceedings was made absolute; and the rule for payment of double costs, was discharged.</p>

<p>This was a Habeas Corpus ad subjiciendum, which had been allowed by Mr. Justice Bryan, and, afterwards, brought by him before the Court.</p>

This cause being referred, a report was made in favor of the Plantiff, to which the following exceptions were filed by the Defendant: 1st. For that the Referees have entirely omitted to charge the Plantiff John Pringle, with the sum of £.146. specie. for a loss on a Policy of Insurance that he underwrote to the Defendant, Blair M'Clenachan, upon the Brig Nancy, Richey, master, on a voyage from Cadiz to Philadelphia in 1775. 2.