Volume 1 — Yeates's Pennsylvania Reports

<p>Attachment awarded for contemptuous expressions of the court, without granting a rule to shew cause.</p> <p>The power to punish by attachment, contempts committed out of court, was taken away by the Acts of April 3, 1809, P. E., 146, and March 3, 1812, E. E., 237.</p>

<p>Full costs in trespass may be given by a jury, though damages are found under 50I.</p> <p>Motion to shew cause why the plaintiff should have full costs, comes too late after judgment and execution.</p> <p>Distinguished in 4 Binn. 16, from cases where an act of assembly directs that a party shall not recover costs. In such cases neither a jury nor arbitrators can allow costs.</p>

<p>Supreme court will not punish a contempt offered to the process of an ■ other court.</p>

<p>Party who removes a road from the sessions, must procure the record to be returned, or a rule -will be made that the sessions shall proceed therein.</p>

<p>Bill of sale, or mortgage may be made of vessels at sea, provided they are reduced into possession by the vendee or mortgagee, as soon as they conveniently can, and the muniments respecting them are delivered up to the vendee or mortgagee.</p> <p>Cited in 5 S. & R. 284, and 30 Pa. 542, to illustrate the manner in which the title to a ship is transferred from one person to another.</p>

The defendant was tried at the last Nisi Prius court for Bucks county, and a special verdict found by consent. It stated, that he was an unmarried man, and had been guilty of criminal conversation with Isabella M’Glister, a married woman, her husband being then and now in full life. And whether the same were punishable as adultery in him, was the question.

This cause had come to trial in September term, 1786, when the plaintiff became nonsuit, part of his evidence having been overruled by the court. The suit was brought on a bond dated in September 1779, constituted for the payment of 200I. good and lawful money of Pennsylvania, on the 1st August 1782.

This case came before the court on a statement of facts for their direction, on the application of the defendants.

This ejectment was tried at the last assizes for Bucks county, when a verdict was given for the plaintiff by consent of counsel, subject to the court’s opinion… Held: but has made no further payments. The defendant is and has been, for sometime past, out of the state, but his wife and family live on the lands, and he is expected to return. Two judgments have been obtained against defendant while in possession, amounting to about 28I. with costs, which are still unsatisfied.

This cause had been tried at the last November assizes in Northumberland county, and a verdict had passed for the defendants. The chief justice now reported the evidence as it appeared on the trial, strongly iu favor of the plaintiff, both at law and in equity.

Ejectment of lands in Tyrone township in the county of Cumberland. The cause was tried at Carlisle, the last November assizes, before Mr. Justice Bryan, when a verdict was given for the plaintiff for 230 acres, part of the land declared for. Two points had been reserved for the opinion of the court in bank, which were now stated from Mr. Bryan’s notes, he having died since the trial, and a new trial was prayed for on the part of the defendant.

<p>A trial will not be ordered on, where a party has not prepared, expecting a compromise from the declarations of his adversary ; and the costs in such case ordered to continue on the remanet.</p>

Mr. Lewis for the defendant, moved the court for an attachment against Joshua Williams, for a contempt in not attending as a witness, after being duly subpoenaed by the .defendant. The action had been put off by the court, on argument, for the term, previous to the motion, under the special circumstances of the case.

<p>In trover, plaintiff must prove property in the thing in controversy.</p>

The defendant’s counsel moved that the cause should be put off on the affidavit of Alexander Snodgrass, that within the period of two or three weeks before the trial, he had discovered one Thomas M’Dowell, a witness, who lived in Maryland, wlio was very material for his defence; that he had conversed with him, and had procured his promise to attend; and that he had subpoenaed him, but upon going for him during the sitting of the Court, found that his child’s illness…

The lessor of the plaintiff by several mesne conveyances showed a title in himself to 12 acres of land, being the premises in question, in Bari township. *The defendant proved by William Smith, that dur- r*™ ing his sub-lieutenancy in the militia, he called on L Henry Bowman for his substitute fine, and was told by him that he had sold a piece of land (meaning the land in controversy) to his brother Martin Bowman, and he would pay the fine for him, which was done…

<p>A party interested will be admitted as a witness for tbe sake of trade and the common usage of business. So an agent, factor or attorney, bidding for another, may prove his own power.</p> <p>Cited in 3 Wh., 40, and 8 Watts, 526.</p>

<p>Motion to discharge the defendant from his arrest, he being taken under a ca. sa. while attending this court as a suitor. It was said by his counsel, that the authorities cited in Wood’s Institute 503, 576, 596, 600, (according to the different editions) do not prove the doctrine there laid down. And the court in Starret’s case, Dallas 356, 357, relied much on Wood. Neither 1 Vin. 11, 1 Dev. 159, or 3 Inst. 141, upon inspection, establish any distinction as to privilege in the case of mesne and judicial process. The word “arrest,” is comprehensive, and will equally include both. They urged the inconveniences which must necessarily attend the practice of not extending the privilege of the court to arrests on a ca. sa. No juror or witness would obey the legal process, if, when called to discharge their duties, they would be liable to be imprisoned by an execution. It was contended also, that there was a difference between the taking on a ca. sa. which had issued before the privilege commenced, in which case the court would not relieve, and where the execution had issued after the commencement of privilege. In the last instance, it was said to be an immediate contempt of the court, wherein its honor was deeply interested to afford redress.</p> <p>This point was decided differently in the Circuit Court of the United States for the district of Pennsylvania, between Broome and Hurst, October Sessions 1804.</p>

<p>Verdict for defendant, and the value of the cattle assessed to 109I. 7s. 6d.</p>

Ejectment for one messuage, grist mill, saw mill, &c. and 156 acres of land, in Manheim township.

Suit against the defendant as an innkeeper, for 230 Spanish milled dollars, on the custom of the country. The narr also contained a count in trover, for the money.. It appeared in evidence, that the plaintiff usually lodged at defendant’s inn in Philadelphia, and had several times before delivered parcels of money to Elizabeth Geltner, his stepdaughter, to be taken care of for him.

<p>Where the state affects delay, the court will assign a day for the trial. Amendment of declaration shall not delay or injure the defendant.</p>

<p>In special assumpsit for tiie delivery of wlieat or other specific articles, the general measure of damages is to give the difference between the price contracted for and the price at the time of delivery: But this is a general rule which implies exceptions, according to the circumstances of the case.</p> <p>Cited in 2 P. & W., 67.</p>

<p>Bill of lading signed by the captain of a ship at a foreign port, was allowed as evidence in a suit by his executors against the owners, to shew the usage of trade at that port.</p>

<p>Defendant cannot -withdraw a plea at the time of trial, to give him the benefit of conclusion to the jury.</p> <p>Followed in 3 Binn., 591, where it was held not tobe error in the Common Pleas to refuse leave to the defendant in an action of debt, immediately before the trial of the cause, to strike out the plea of non est factum, and to rely solely upon the plea of payment.</p> <p>Cited in i R., 347, in support of the decision that a plaintiff will not he permitted to discontinue, where it will give him an advantage, or tend to vex and oppress the defendant.</p> <p>By the Act of March 21, 1806, a defendant may alter his plea or defence on or before the trial of the caijse.</p>

<p>In a suit by indorsees of a bill of exchange against the drawers, evidence cannot be received, that it was customary to draw such bills as agents to a fund, and that no recourse could be bad to the drawer, under this special signature.</p> <p>A negotiable bill passes under the credit of the drawers.</p>

<p>Court will not make a rule respecting a sheriff's sale of lands when the deed has been acknowledged at a precedent term, without opposition.</p>

<p>One brought in on attachment, and purging himself of the contempt on interrogatories, shall be discharged.</p>

<p>Devise to.tkree of tbe testator’s children in Germany, of one-sixth part of the residue of liis estate to each, “provided that they, their children, or grand children shall transmit proofs to the executors within six years after testator’s death of their being alive, and after the said six years no proof to be admitted, but the said residue shall be equally divided among such of his children and grand children as can make such proof, and shall have made it within the aforesaid space of time.” Proof was made within the time, but was inevitably prevented from being sent forward. Adjudged that such devisee was entitled to his residuary share, and the word and slid 1 be construed or to effectuate the testator’s intention.</p>

Motion at a precedent term, and rule for a mandamus to the defendants as commissioners of bankrupt, to give a certificate of conformity to James Newport, or shew cause to the contrary. The commissioners made a general return, that their appeared to them reason to doubt that the discovery and disclosure made by the bankrupt, was a true, full and perfect discovery and disclosure óf all the estate and effects of the said James Newport.

The proceedings in this cause were removed by certiorari, from the county of Luzerne.

This cause came before the court at the last term, on a motion for a new trial, founded on a supposed misdirection of the court to the jury. The case appeared on the trial as follows, being stated by the chief justice. The lessors of the plaintiff claimed title to a house and lot in the city of Philadelphia, as assignees of the commissioners of bankruptcy of the estate of Christian Wirtz, a bankrupt.

An action of debt was brought by way of information, by the attorney general, against the defendants, for 4000I. sterling money of Great Britain, of the value of 66661. 13s. 8d. lawful money of Pennsylvania, in the debet and detinet, upon a writing signed by the defendant and taken in the court of admiralty of Pennsylvania, in the liature of a caution or stipulation, dated 4th November 1783.

A RURE has been made at last term, on the defendant, a justice of the peace of Chester county, to shew cause, why an inform ation should not be granted against him for extortion and oppression. This rule was granted on the affidavit of Hazael Thomas, who deposed, that on a prosecution against him and sixteen others, for a riot and assault and battery, the defendant had received from him, for justice’s fees alone, 25I. 3s. 6d. according to a bill produced and filed by him.

Action of dower in 113 acres of land in Southampton township, in Bucks county.

Scire facias sur report of auditors. Plea, nul tiel record. The plaintiff shewed to the court a record of the Court of Common Pleas, whereby it appeared that the matters in dispute had been submitted by the testator and defendant to referees', and that the referees had awarded, that the defendant should make a deed to the testator for five thousand acie& of land in Harrison county in Virginia, or pay to the testator 104I. 3s. 6d. This report was filed 15th October 1787, and…

of Bucks county. The facts were admitted to be these in all the causes: — Defendant kept a dog which used to bite sheep, and actually killed sheep of each of the plaintiffs. On complaint justice Barclay issued his summons, but being informed that he had no jurisdiction, discontinued the suits, and recommended a reference to arbitrators. This was agreed to, and the arbitrators awarded to each of the plaintiffs certain sums of money.

<p>Referees not to be examined as to wbat proof was made to them of a tender of continental money, how or when it was made, or in what kind of money. They may be examined as to a simple point, but to go further would supercede the use of references.</p>

<p>Divorce from bed and board may be granted in the first instance, where it appears on the pi'oofs, that the person of the wife cannot be safe, tho’ the husband offers to receive her.</p> <p>Cited as an analogous case in McClurg’s App., 66 Pa., 373, in which case it was decided that if the court believed a husband’s offer of reconciliation was insincere, it was the duty of the court to give the wife the benefit of the decree to which she was entitled, leaving the husband to his remedy under the Act of Feb. 26, 1817.</p>

Debt 3000I. sur obligation dated 12th February 1784. On Oyer, the condition appeared to be that the defendants should, on or before the 20th day of April then next, by a lawful deed of conveyance, such as counsel should advise, convey to the plaintiff certain mills and lands in Hamilton’s-Bann township, in the county of York, with general warranty, and a special covenant against all incumbrances whatsoever.

<p>Objection to a witness, when the matter is doubtful, shall be restrained, to his credit.</p> <p>A witness who has no decided interest in .the event of the cause shall be received.</p> <p>A clear mistake appearing in the award of arbitrators shall be rectified.</p>

<p>Will proved before tbe register, or under a feigned issue, bas always been received as evidence, but such probate is not conclusive evidence of a devise of lands. Where the special instructions for drawing a will are proved by two .witnesses, and a will is drawn conformable thereto in the testator’s life time, though he does not execute the same, it is a good will in writing under the act of assembly of 1705.</p> <p>Cited in 6 S. & R., 455 ; 5 R., 82; 5 Wb., 396. Obsolete by the Act of 8, 1833. In Fransen’s Will, 26 Pa., 209, Chief Justice Gibson said</p> <p>“Neither the English statute of wills, nor those sections of the English statute of frauds, which regulate the execution of devises, were re-enacted here or extended by adoption in practice. The Act of 1705 is the equivalent of the first, and the Act of 1833 of the second. The English decisions on the statute of the 32 H., 8, were resorted to as precedents to establish almost anything in the shape of a will, as may be seen in Walmsley v. Reed, I Yeates, 90; Rossiter v. Simmons, 6 Ser. & R., 425; Murray v. Murray, 6 Watts, 356; Barnett’s Appeal, 3 Rawle, 15; Rohrer v. Stayman, 1 Watts, 442; and Arndt v. Arndt, x Ser. & R., 256.”</p>

<p>[See the cases lessee of John Hughes v. Henry Dougherty, and lessee of Morgan Sweeney v. John Jones, determined at Sunbury October assizes 1791, the reports whereof I have been favoured with by Mr. justice Bradford.]</p>

This action was brought on three bills of exchange dated 19th December 1786, and drawn upon the defendant by the plaintiffs, for 3545 livres and two sols each, to be paid to their order. These bills were indorsed by the plaintiffs to Paul Ant. Fauré, and Co., and by them to others. Defendant accepted the bills, but they were protested for non-payment. Plaintiffs in their declaration aver the payment of them with costs and damages to the last indorsee by Paul Ant.

HlflT for a legacy. Defendant pleaded non asstmipsit and non solvit and issue.

This cause had been removed from the Common Pleas of Philadelphia county by habeas corpus. Previous to the entry of bail, the plaintiff’s attorney had filed his declaration, without marking the same de bene esse, and a question arose before the court whether this was a waiver of bail. contended that by the practice in England, such unconditional declaration would * amount to a waiver, and cited Highmore on Bail, 15, [-*104. 57. Lib. Prac. Reg. 86.

On a motion for a new trial in this cause, the chief justice reported the evidence which was given at the trial, at the last assizes held for Montgomery county. The suit was an action of trespass, for breaking and entering the close of the plaintiff in Cheltenham township, containing fifteen acres. The defendant pleaded liberum tenementum, and the parties were at issue.

This cause had been tried at the last sittings for Philadelphia county, and a verdict had passed for the plaintiff, with a deduction of 7^ years interest accrued during the war, the same being a British debt. A motion for a New trial had been made on this ground by Messrs. Tilghman and Ingersol for the plaintiff, on the first day of this term.

<p>On a feigned issue to try the validity of a will, the court before.whom it is tried, but not the register, has the power to award a new trial.. The jurors are the constitutional judges of the credit of witnesses, and if the sanity of a testator is fairly left to them, the court will not interpose, where they have discovered no leaning. No very great share of reason is necessary to validate a will.</p> <p>. Cited in 54 Pa., 222, in support of the proposition that a change of intention is of no importance if there he a sound mind unconstrained, but when the question is whether there he such a mind, such charge may be adduced to aid the inquiry.</p>

<p>The plaintiffs declared on a policy of insurance, subscribed by the defendants, on the ship American, whereof William Keeler was master, on her voyage from Philadelphia to Fayal, at Fayal, and thence back again. The sum of iool. was underwrote on the vessel, on the 5th December 1785, at a premium of 7^ per cent. The cause had been tried at the last sittings, on the 15th November last, arid the jury found a special verdict to the following effect.</p> <p>. “The defendants underwrote the policy on the ship as ‘ ‘ stated in the declaration. The ship arrived at Fayal on the “23d December *1785, and three weeks afterwards, on r*i “the suggestion of Duncan Ross, and at the request of L “ captain Barnes, captain Keeler sailed in pursuit of the sloop “Fly, which had been runaway with by her mariners, under 1 ‘ a contract to receive iool. sterling 'in case of the re-capture “of the sloop, and returned to Fayal in eight days after sail* “ing. Captain Keeler did not thereby intend an exclusive “profit for himself, but sailed for the joint benefit of his “owners and himself. The ship was afterwards.wrecked on “the island of Eayal, on the 31st January 1786, by a storm. “If the law be with the plaintiffs, then the jury find against “the defendants 129I. 6s. 2d. damages; but if it be with the “defendants, then the jury find for them.”</p> <p>This special verdict was argued this term by Messrs. Eewis and Sergeant for the plaintiffs, and by Messrs. Ingersol and Wilcocks for the defendants.</p> <p>Two points were made on the argument on the part of the plaintiffs: xst, That here there was not sufficient matter found by the jury 011 which the court could render judgment, and therefore, that a venire facias de novo must issue. 2d, That the facts as found amounted to barratry on the part of the captain.</p> <p>On the first head, it was said by the plaintiffs, that whether it was a mere deviation or not on the part of the master, was a question of fact to be detérmined on the circumstances of the case. Parke on Marine Insur. 362. If the matter in issue be not expressly found, the verdict is bad. 5 Bac. Abr. 3x5. Where the matter in issue is, whether a thing be fraudulent or not, the court will never determine whether a matter is fraud or not, however strong the circumstances of fraud are, which are found by the jury. . Crisp, v. Pratt. Cro. Car. 550. The court will not adjudge a matter to be fraud, though the jury may. 13 Vin. Abr. 554. E. a. § 3. Vent. 159. 10 Co. 56. b. It is evidence to the jury, and not any matter on which the court can jxidge. The present case was compared to an action of trover, wherein request and denial is evidence of a conversion to the jury, on which they may judge, but the court cannot. Gilb. Law Evid. 258. Miles v. Solebay. 2 Mod. 244. So in a criminal case, where the consequence of a verdict may be corporal punishment, unless the defendant is found guilty, court will never infer from any evidence or circumstance found by the jury that he is guilty. Rex v. Plummer. 12 Mod. 628. They also cited Smith v. Eoaves. Noy 147. '2 Rol. Abr. 693. S. pi. 1. pi. 2. Ib. 69,5. pi. 6. ^ was answered by the defendants, that J strict form is not now required in verdicts: where they are substantially good, the court will mould them into form. Dali. 462. Motion for a new trial, what circumstances amount to covin, is always a question of law. 1 Burr. 396, 397. Whether the execution of a deed be an act of bankruptcy or not, whether a matter be fair or fraudulent, is often a question of law. Per Lord Mansfield. 1 Burr. 474. In this case, the conveyance, though by way of security, and foi valuable consideration, was determined to be fraudulent, and an act of bankruptcy. -</p> <p>Suit on a policy of insurance: jury found a verdict for the plaintiff, subject to the court’s opinion on the statement of a great variety of facts. The court adjudged the conduct of the captain not to be barratry; they undertake to say whether from the circumstances it was fraudulent, and if so, whether it was barratry, not being against the owner or freighter of-the vessel, i Term Rep. 323.</p> <p>Special verdict finding all the circumstances of a quarrel and homicide: the court determined the killing on the whole facts, to be murder. Rex v. Oneby. 2 Stra. 766.</p> <p>The defendants insisted, that here the deviation was expressly found, which would excuse them.</p> <p>On the second head, it was said by the plaintiffs, that the special verdict is silent as to the real views of the captain. Whether his sailing in pursuit of the sloop, was or was not for the mere sake of the reward of iool. sterling, is not found. If the master can, by joining the owner in a supposed benefit, sink his own conduct into a simple deviation, it will be an effectual cover to him in all cases, and will put every owner fully into the power of his captain. If he could make an agreement, under pretence of procuring his owner a moiety of a promised reward, he may equally do it as to one hundredth part, and secure the residue for himself. Barratry is every species of fraud or knavery in the master, tending to injure the owners or freighters. Parke 94. As where to defraud the owners, he deviates from the intended voyage. Ib. 93. 1 Postlethw. 136. So sailing out of port without paying the duties, whereby the ship was subjected to forfeiture, has been held to be barratry. 1 Stra. 581. Where a suit was brought on a policy “at and from M. to E. against the bar-ratry of the master (amongst other things) and all other “dangers, damages, and misfortunes which should happen to “the prejudice and damage of the ship’’- — the breach assigned in the declaration, was the loss of the ship by the fraud and negligence of the master, and it was held to be sufficient *both in C. B. and B. R. For barratry imports r*y fraud, and he that commits a fraud may properly be L said to be guilty of a neglect, viz. of his duty. Parke 95, 96. 2 Ford Raym. 1949. 1 Stra. 581. Where a master is to have no benefit to himself, by passing by the intended port, it is no barratry; Parke 97. and therefore i.t may be concluded, where he is to have any benefit, it is barratry.</p> <p>The plaintiffs insisted that the jury had found the policy and the loss, and if no sufficient excuse was found, judgment must be entered for the plaintiffs. And it was said, that no such sufficient excuse was found; because, 1st, The verdict does not find that the cruize was made with the knowledge 01 privity of the owners or consignees; and 2dly, There was a benefit intended by the master for himself.</p> <p>To this it was answered, that barratry, by the English law. means a cheat, a fraud, a cozening, or trick, by the master or mariners of a ship against the owners or freighters. Parke 93. Cowp. 154. 1 Postlethw. Dictionary, 136, 214. It must be of a criminal nature, or a gross negligence, tending to the benefit of the master or mariners, and to the injury of the owners, and without their privity or consent. Parke 94. When the master acts for the benefit of his owners, it is no barratry, though it may be a deviation or breach of contract. To make it barratry it must be something of a criminal nature, as well as breach of contract. Ib. 96, 97, 101. 2 Stra. 1173. If the conduct of the master arises from error in judgment, without any evil design, it is no barratry. Such is the present case, where from humane views, and to secure mariners who had run away with the sloop, and to save the property, the master sailed in quest of the pirates, having the interest of his owners in view. When the master is acting for the benefit of himself, and no good is intended for his owners, it is barratry. Per Aston J. Parke 102. It consists in setting his private interests fraudulently, in direct opposition to those of his owners.'</p> <p>Here is a sufficient excuse found for the underwriters. A deviation by the captain, without necessity or reasonable cause, from the course of the specific voyage insured, discharges them from any responsibility. It was an implied condition to be performed on the part of the insured, that the ship should pursue the most direct course of which the nature of things would admit, to arrive at the destined port. The voyage being' changed, becomes a different voyage, and not that against which the insurers have undertaken to indemnify. *1181 ^or *s ^ at material, * whether the loss be or be ^ not an actual consequence of the deviation; for the insurers are in 110 case answerable for a subsequent loss, in whatsoever place it happen, or to whatever cause it may be attributed. Parke 335, 336.</p>

The action was indebitatus as-sumpsit for 1500I. received, to the use of the plaintiffs. Plea non assumpsit and issue.

DEBT 2000I. sterling money of Great Britain, on an obligation dated 1st May 1786, executed by James Collins and the defendant, to the plaintiff as attornies of Oxley and Hancock, conditioned for the payment of ioool. sterling in good bills of exchange, on the first day of November then following.

Depending on the same principles. The latter was an action of covenant brought for non payment of a sum of money due on the sale of a tract of land during the late war. The agreement did not specify in what kind of money the consideration was to be paid, but the bonds taken in pursuance thereof called it lawful money of Pennsylvania.

This was an appeal from the settlement of an account against the commonweath, by the comptroller general, undei the acts of assembly passed April 13th 1782, and February 18th 1785, (3 St Laws, 51, 444.) The facts on the evidence, turned out to be these. The testator was seized of an island in the state of New Jersey, called Newbold’s Island, and had on it, a considerable quantity of salted pork, gammons and lard.

Case, against the defendants, as owners of the brigantine Mary, for the misconduct of Adam Caldwell, their captain. The plaintiffs in 1787, shipped a quantity of honey on board the brigantine, to be ^delivered at Dublin, and produced the captain’s bill of lading.

<p>In a suit against partners, one of tbe defendant’s, tbo’ willing, cannot prove tbe partnership, as be would thereby exonerate himself of part of a partnership debt.</p> <p>Cited in 9 Pa., 112.</p>

Action against the defendant as surviving indorser of two promissory notes. One of them was not disputed. The.other which came in question, was a note for #425, dated 10th February 1785, drawn by Isaac Sidman, payable to Allison and M’Knight or order, in forty-five days after date, and by them indorsed to the bank. This noté therefore became due on the 27th March, and the three days of grace expired on the 30th March.

Case. The declaration contained two counts: one for ioool. had and received to the plaintiff’s use; the other foi ioool. lent. The case upon the evidence appeared to be this. The plaintiff was appointed agent for forty-three seamen on board the privateer brig Holkar, Roger Kean commander, to receive their * prize money. The defendant was marshal of the court of admiralty of Pennsylvania, where two of the prizes were libelled, condemned and sold.

Debt. Exception was taken in this cause, to the execution of a certain commission issued to Baltimore in Maryland, because answers had not been given to all the plaintiffs interrogatories, by the witnesses examined for the defendant.

<p>An ex parte affidavit is good evidence to prove the identity of a person so far as it respects his marriage or pedigree. Damages in dower to be found since the time of demand made, either in pais or by matter of record; but not of the improved value, after a sale by the husband.</p> <p>Referred to in 5 S. & R., 292, -where Tiughman, C. J., said: “As to the case of Winder v. Little, 1 Yeates, 152, although the point on which the court decided is not expressly stated, yet enough appears to satisfy me, that it was a question on improvements.”</p>

<p>John Duesteud recovered by ejectment, in the name of Richard Fenn his lessee, a house and lot in the city of Philadelphia, against the defendant, and afterwards brought this suit for the mesne profits. Pending the action, Duffield, by deed dated 1st November 1787, conveys the premises to the defendant in consideration of 1500I., with the usual words of “all his right, title, interest, claim, and demand of, and in the same. ’ ’</p> <p>A case was made for the opinion of the court, whether the lessor of the plaintiff, after conveying his title, could maintain trespass; and whether the deed is not. a release of the mesne profits, or does not so operate as to preclude the plaintiff from recovering in this action?</p> <p>On the part of the defendant were cited, Freem. 367, a release of all ones’ right in land will extinguish rent. Bro. Assize, fol. 63. a. pi. 359. One having rented lands at is. 6d. per annum, and afterwards released to the tenant the same lands, his heir cannot recover the arrears of rent. S. P. and C. 41. Assi. pi. 6. Litt. § 508. Release of all demands will extinguish every claim. 8 Co. 154, a. Release of all demands will exclude one from all actions, entries and services.</p>

Mr. Lewis moved for a rule to shew cause, why a mandamus should not issue to the commissioners of Philadelphia county, to pay the monies awarded to according to the valuation made of his ground taken up by a road continuing second-street, in the city .of Philadelphia.

Sur rule for trial or non pros. Mr. Heatly for the defendant, moved that a non pros might be entered according to the rule, the cause not having been brought on to trial, dur-. ing the term. Mr. Morris for the plaintiff objected, that though a plea had been put in and issue joined, no declaration had been filed, and the defendant should have taken a rule to declare, and thereby enforced the plaintiff to proceed without delay.

Writ of error of a judgment in ejectment in Luzerne county. Plea in millo est erratum. On tbe part of the plaintiffs in error (the defendants below) three exceptions were taken. It appeared oh the record, that the cause had been referred by mutual consent, and that the referees had found the defendants guilty of the trespass and ejectment, but had assessed no damages or costs. The court had given judgment for the plaintiff and awarded costs.

Writ of error to Ruzerne county. The record stated, that the parties had appeared personally in the Court of Common Pleas of that county, and desired to enter an amicable action, which was done accordingly.

<p>Warrant dated 20th August 1765. A survey made in pursuance of a warrant said to be dated 21st August 1765, may be read in evidence, if tbe lines correspond with the terms of the first warrant, and a certificate of the surveyor general is shewn, that no such warrant of the 21st August 1765, is to be found in his office.</p> <p>A deed proved to be executed by several of the grantors, tho’ not by them all, and not recorded, may be read in evidence.</p>

A motion was made by Mr. Daniel Smith to discharge John Quinn, a soldier enlisted by captain John Cook, in the service of the United States, from his confinement, under the act of assembly of 2d January 1778.

<p>The sale of lands by county commissioners, where there’is sufficient personal property to be found on the premises to pay the taxes, is void, and their deed a mere nullity. Courts of justice will examine such sales narrowly. The person in whose name a warrant or location is taken out, is a trustee for him who entered it and paid the monies.</p> <p>Cited in 2 Yeates, 120, as establishing the principle that where one enters a location in the name of another, it shall enure for the benefit of the party applying, without other proof. Cited for the same purpose in 4 S. & R., 334; 1 W. & S., 327 ; 1 W. & S.. 493 ; 18 fa., 295 ; 58 Pa., 287 ; 61 Pa., 454.</p> <p>Cited in 1 Watts, 73, where the court says: “ In Cox v. Grant, the court speak of applications and warrants indiscriminately, and make no distinction as to the nature of the proof that is required or admissible to prove the ownership thereof to be in a person different from the locatee or warrantee named in the.application or warrant.”</p> <p>Cited in 4 W. & S., 340, in support of the decision that a town lot cannot be assessed and sold by the treasurer when either the person of the owner or his property might have been taken for the payment of taxes.</p>

<p>In a highway, the right of passage belongs to the public, but the right to the soil, the stones, wood, or grass, continues in the owners of the lands.</p> <p>There is no custom to laud or receive freights on another’s freehold on the banks of a navigable river without his consent.</p> <p>Cited in 3 Watts, 219, in support of the decision that the owner of a private ferry has no right to land boats and passengers at the terminus of a public highway, between high and low water mark, on the opposite margin of the river, without the consent of the owner of the soil. Cited for a similar purpose in 9 S. & R., 32; 8 Watts, 439.</p> <p>Cited in 8 Pa., 294, in support of the decision that trover lies for timber cut by a stranger on the land of the plaintiff, though within the lines of a public road.</p> <p>Cited in 49 Pa., 109, where the decision was that in action for damages cannot be sustained against a railroad company for cattle killed or injured upon the track at the crossing of a public road.</p> <p>Cited in 78 Pa., 167, in support of the general proposition that the right to the soil of a highway continues in the owner of the land, subject only to the right of way in the public.</p>

Mr. Ingersoer for the defendants, moved that the cause of the plaintiff should not be postponed, unless the costs of the term were paid, and cited Dallas 29, Keppele v. Williams, that it would be a contempt to pocket the venire facias.

Scire Facias stir mortgage to testator dated ntli August 1759, for securing the payment of iool. ón the 27th September 1775, regularly recorded. The defendants pleaded pay ment, with leave to give the special matters in evidence.

<p>Depositions of witnesses taken under a commission allowed to be given m evidence, tbo’ it did not appear that they were sworn by the commissioners.</p> <p>Court will not direct a nonsuit, tho’ the evidence is not very clear with the plaintiff.</p> <p>Where a landlord claims and uses certain privileges against the tenant’s consent, it is incumbent on him to shew that he reserved them; otherwise he suspends the rent.</p> <p>Cited in 59 Pa., 386, to show that every commission when in proper form, authorizes the commissioner to call the witnesses before him, and to examine them upon their oaths or affirmations.</p> <p>Cited in r Rawle, 441, in support of the proposition that if a lessor enters upon his lessee and disseizes him, the rent is suspended in the whole, and cannot be apportioned for any part.</p>

<p>_ Application for a rule for security for costs, in the case of a foreign plaintiff is never too late, unless it goes to procure delay.</p>

<p>A bill of lading not signed, but kept by the captain for bis own use, is no evidence to shew that goods were shipped, and a bill of lading signed.</p> <p>On a plea of nulla Dona to a foreign attachment with leave to give the special matter in evidence, written notice having been given that the defendant would insist on the non-payment or tender of freight of the goods shipped, it may be given in evidence without pleading the cause of de-tainer specially. Goods may be stopped by the shipper in transitu, only where they have not been paid for, or the party is insolvent, but not when they have been shipped to pay a precedent debt.</p> <p>Cited in 57 Pa., 139.</p>

<p>Pile governor and not the corporation of the city of Philadelphia have the power of appointment of the clerk of the city court.</p>

<p>W recovers judgment against H, in the Supreme Court, on a removal from Philadelphia county, and H afterwards sells lands in Lancaster county to I, and then becomes a bankrupt; the lands may be taken in execution at the suit of W, on a testatum fi. fa. the bankrupt laws not operating on lands conveyed anterior to the bankruptcy.</p> <p>A judgment in the Supreme Court upon removals from the proper county, binds defendants’ lands throughout the state.</p> <p>The Act of March 20, 1799, 3 Sm. D., 358, enacted that from and after the last day of Dec. 1, then next, no judgment rendered in the supreme court should be a lien on real estate excepting in the county in which such judgment shall be rendered.</p> <p>Cited in 34 Pa., 335 and 71 Pa., 173, in support of the proposition that prior to the Act of 1799, judgments in the supreme court were a lien throughout the commonwealth.</p>

Action stir promissory note. Plea coverture. Mr. Howell, pro quer, obtained a rule to shew cause, why the plea of coverture entered in the last vacation should not be set aside, it being a dilatory plea and not verified by affidavit, nor any probable cause shewn to the court to induce them to believe that the fact of it is true, agreeably to the 36th rule of practice of the court.

Special assumpsit. Verdict for the plaintiff at last May assizes for Berks county, for 678I. 13s. 2d. Mr. Todd for the defendant, had moved within ine first four days of the term, for a rule to shew cause, why a new trial should not be granted. Messrs.

<p>On defendant’s submission to an indictment for a libel, bis affidavit to shew the provocation he had received, in order to mitigate the fine, refused by the court.</p>

Richard Budden made his will, and devised certain real property in the city of Philadelphia, to Susannah his widow, during life, remainder to his two children, James and Susan-nah, who intermarried with William Strieker. His executors having resigned their trust, administration was granted to Susannah his widow, and James his son, who is now dead.

This cause came before the court again, on a motion for the court’s direction that the lands levied on by the sheriff of Chester county should contribute according to the value of the several tracts, to pay off and discharge the debt interest and costs in this action.

Thksb were five different suits brought for legacies devised to the plaintiffs respectively, under the will of their father, Thomas Grubb, during the late war. Auditors were appointed and struck under the depreciation act, by the Court of Common Pleas of Lancaster county, in May term 1791, to ascertain the demands of the several plaintiffs; and the different actions were continued under the same rules of reference at the August term following.

Ejectment for a house and lot of ground in Marcus Hook, in Dower Chichester township.

<p>In ejectment where plaintiff claims under an article of agreement, and the defendant holds under a previous parol agreement, and possession delivered, and a subsequent deed from the same person, his declarations previous to the article shall not be given in evidence to corroborate the proof of the parol agreement, he being a defendant in the suit.</p>

<p>In replevin, a submission and- award between tbe parties, are evidence to prove tbe defendant’s claim to goods, but not conclusive.</p> <p>Questioned in a M., 457.</p> <p>Cited in 86 Pa., 492.</p>

<p>In indebitatus assumpsit for goods sold, an entry in the defendants’ day book, that he had received the goods to be disposed of on commission, is no evidence.</p> <p>Damages given for vexatious delay of payment.</p> <p>Approved and followed in 2 Wh., 36, where it was decided that the hook of original entries of a tradesman is not evidence of the delivery of goods to he sold on commission, even though such book be offered not to charge the defendant, but as rebutting evidence to explain certain payments proved by the defendant.</p>

Ejectment for a Rouse and lot in the city of Philadelphia. It was admitted on both sides, that Mrs. Mary Masters was seized in fee of the premises in question. The lessor of the plaintifF claimed under a deed made to him by Anthony Butler, her attorney in fact.

Suit on a policy of insurance on the schooner Polly, at and from Cape Francois, to Alexandria in Virginia.

<p>A guardian who has signed a receipt for 4000 continental dollars on 19th Eeb. 1780, may (under a release from his ward) be a witness to prove, what passed at and immediately before the subscription of the receipt.</p> <p>The rule, that a party shall not be permitted to give testimony tó invalidate an instrument which he has signed, is now confined to negotiable instruments.</p> <p>Cited in 1 Y., 571; 5 Wh., 575; 8 Watts, 309 ; 2 Bin., 165; 4 S. & R., 228; 9 S. & R., 236; 5 Wh., 575; 2 Watts, 268; 17 Pa., 82 ; 20 Pa., 471; 3 Grant, 123.</p> <p>In Harding v. Mott, 20 Pa., 471, Bi,ace, C. J., said: “In Walton v. Shelley (1 Term Rep., 296), it was ruled that a witness could not be heard to impugn a paper to which he had set his own hand. Ten 'years afterwards this rule was repudiated by the same court which established it (Jordaine v. Lashbrooke, 7 Term Rep., 600). In New York it was adopted in Winton v. Saddler (3 Johns. Cases), and abandoned afterwards in Stafford v. Rice (5 Cowen, 25), Bank v. Thilliard (5 Cowen, 158), Williams v. Walbridge (3 Wendell, 416). But several of the other states have received the doctrine in a modified shape, and maintained it steadily ; for instance, Massachusetts, Maine and New Hampshire. It has received the express endorsement of the Supreme Court of the United States, in the Bank v. Dunn (6 Peters, 51), and in the United States v. Leffler, (n Peters, 95). In Pennsylvania it was recognized in Pemberton v. Pleasants (2 Dali., 196), and has been adhered to by this court ever since in a great number of cases, though in Griffith v. Reford (x Rawle, 197), it escaped an overthrow very narrowly, Huston and Todd, Justices, being both opposed to it. Since the last mentioned case, which was decided in 1829, the question does not seem to have been considered an open one.”</p> <p>The Act of 1869 has changed the rule that a party to negotiable paper is in competent to testify to anything tending to impeach its validity at the time it passed out of his hands in the course of business. State Bank of Harrisburg v. Rhoads, 89 Pa., 353.</p>

Suit for non-acceptance of a bill of exchange, drawn by the defendant on Madame Re Gaux, at Paris, for 600 livres tournois, dated 20th November 1787, payable ninety days after sight. The defendant’s hand writing to the bill, and Merrian’s indorsement having been proved, the plaintiffs gave in evidence the protest for non-acceptance, dated 29th January 1788, and notice of the protest to the defendant on the 8th May following.

<p>A bankrupt may be committed for perjury in bis examinations before tbe 42 days, or sucb further time as may be allowed for bis examination.</p>

<p>When a party moves for an information, he must enter into recognizance for payment of costs: aliter where the attorney general moves for the rule officially.</p> <p>On the rule to shew cause, the oaths of the defendant and his witnesses must he reduced to writing.</p> <p>Commented on in 7 Pa., 38.</p>

MESSRS. Sergeant and Hall for the plaintiff in error now moved again, that a writ of restitution should issue on a reversal of the judgment in Euzerne county. They contended that such writ was ex debito justifies. The Common Pleas had no jurisdiction in a case between landlord and tenant.

Justice Shippen, before whom and Mr. Justice Bradford, the cause was tried at the last October assizes for Bucks county. This was an action of assumpsit. Pleas non assumpsit and payment. The plaintiff’s demand consisted of two parts, ist. Eor wages for fifteen years service in the testators’ family. 2d. For an annuity of 30I. per year during her 'life, on a supposed express promise from the testator.

<p>Pre-emption rights to Indian land under the act of assembly of 21 December 1784, are to be governed by the rules of landed property.</p> <p>The usage of the late province was to consider improvements, and even warranted and surveyed lands as personal property until 1758, or thereabouts.</p> <p>Explained in 6 S. & B... 82.</p> <p>Cited in 7 S. & R., 406, in support of the proposition that the words legal representatives may be referable either to heirs, executors or administrators, according to ■ the subject matter, and when they relate to lands, they are always considered as referring to heirs.</p> <p>Cited also in 2 Yeates, 125, 169, 588; and in 7 Watts, 255.</p>

These causes came on to be tried at Newtown, for Bucks county, October assizes 1791, before M’KLean, Chief Justice and Yeates, Justice; after the evidence was gone through, a juror was withdrawn by consent, and the following case was stated for the opinion of the court, in bank.

A habeas corpus ad subjiciendum had been awarded by the court to Mrs. Keppele, returnable iustanter, under the act of assembly of 1785, to bring the person of Benjamin Hannis before the court.

This cause came on to trial on the 31st March 1792, when a verdict was taken for the plaintiff, subject to the opinion of the court on the following case. Held: that the purchasers should not be disturbed, after a quiet possession of sixteen years. 2 Atky. 41.

Case. The declaration consisted of two counts. The first stated, that “M. K. on the 12th May 1785, in consideration ‘ ‘ that the said J. M. before he became bankrupt, and before “the same day, had bargained, sold, and conveyed, to him “the said M. a certain tract of land, of the value of 75I. sit- ‘ ‘ uate in Brunswick township, in Berks county, he the said “ M. by his contract and agreement in writing, then and there “made with and delivered to the said J. M., assumed upon…

The record stated the demand of the plaintiffs to be under forty shillings, and that the justice, on due proof made before him, had given judgment for the plaintiffs for seven stillings and sixpence and costs. The nature of the demand did not appear from the record, but on the defendant’s application to the justice, he had certified to the court a state of the facts as they appeared before him on evidence.

<p>Justices of the peace have always exercised jurisdiction in cases of executors and administrators defendants; but should they proceed to. re-examine an administration account, or not allow the party a reasonable time to settle his administration account, the court would interpose.</p>

The township of Upper Dublin had appealed from the order of the two justices to the sessions, who on argument confirmed the order of removal. An exception was taken to the order, that one of the justices who signed it lived in Ger-mantown township, but the same was overruled.

This was an action brought on a promissory note, and the justice had given judgment for the plaintiff for 4I. 7s. 6d. and costs. Exception was taken, that the note, though the defendant’s signing of it was contested, was not proved by the subscribing witnesses, who might have been procured, but the proof respecting it was by comparison of it with the hand writing of the defendant, on which the justice founded his judgment.

The administration account of the defendants had been referred at Nisi Prius at West Chester, September assizes 1791, to three persons, to report thereon, and also the balance, if any, due to the plaintiff. The auditors reported to the last term the sum of twelve pounds to be due to the plaintiff, but said nothing therein of the costs.

<p>A judgment entered by way of security, admits nothing, but the plaintiffs on a trial must prove tbeir case as laid.</p> <p>A nonsuit for want of testimony on the part of the plaintiff cannot be taken off. The mistake of the party or his counsel, is no ground for a new trial.</p>

This action came before the court on a case stated. It comprehended the whole of the record, and was in substance as follows: A foreign attachment was instituted by the plaintiffs against Joseph Waldo in the Common Pleas of Philadelphia county, and his property attached in the hands of the defendants, together with a considerable debt due by them to him.

Case for the use and occupation of one messuage, one kitchen, two stores, one ferry landing, and lot of ground, situate on the north side of Mulberry street, in the city of Philadelphia, for the space of nine years, five months, and ten days, on a quantum valebant. The defendants pleaded non assiimpserunt and payment, with leave to give the special matters in evidence.

This cause came before the court by way of appeal, from the settlement of the account of the plaintiff, as captain of one of the state gallies during the late war, by the comptroller and register general on 3d April 1792. The suit was instituted in case, founded on an agreement, signed by the plaintiff’s counsel and the attorney general filed in court. Plea non assumpsit, and payment. Replication non solvit, and issue.

Arthur Vance, Richard Caldwell and Robert Vanee, were joint partners in trade at Dominica; Hugh Moore and Alexander Johnston at St. Kitts.

On the trial of this cause, Alexander Eowrey was sworu as a witness on the part of the defendants, who had taken out the warrant under which James Rankin the landlord, claimed.

Mr. Hamilton for the defendants, moved to put off the trial of this canse, on affidavit of the service of a subpoena on Thomas Ferguson, a material witness for the defendants, and his non-attendance. This was opposed by Mr. Charles Smith for the plaintiff, who urged, that the deposition of Ferguson had been taken by the defendants in pursuance of a rule of court, and he agreed the deposition of the witness might be read in evidence.

<p>The 15th section of the law passed 8th April 1785, that “ every survey “made by a deputy surveyor out of his proper district, shall be void,” relates solely to the lands purchased at fort Mackintosh.</p> <p>Cited in 2 Y., 147, to illustrate the interpretation of the nth section of the Act of April 3, 1792.</p> <p>Referred to in 2 Binn., 225 ; 2 Watts, 292 ; 2 W. N. C., 168 ; 78 Pa., 354. Followed in 2 S. & R., 560; 7 S. & R., 334; 13 S. & R., 383; 5 Watts, 22X ; 7 Watts, 242; 10 Watts, 379.</p>

Ejectment for a tract of land called ‘ ‘ Roscommon, ’ ’ containing 269 acres on the river Monongahelah, i.n Mifflin township.

<p>No one shall be permitted to overturn his own deed by subsequent expressions. A deed between father and son a minor, tho’ fraudulent as to creditors, is yet binding as between the parties.</p> <p>A purchaser, with notice of a previous agreement between the grantor and another, takes the land subject to the agreement.</p> <p>Cited in 2 Watts, 227, where it was decided that the statute of 13 Eliz. makes void a deed only as against creditors, but not against the party himself, his executors or administrators.</p>

<p>A location, independent of due diligence to obtain a survey, gives no right to the pre-emption of lands.</p> <p>A location, whereon no survey has been made, is within the meaning of the limitation act of the 26th March 1785.</p>

Ejectment for one messuage and 300 acres of land, in Mount Pleasant township.

Ejectment for 160 acres of laud in Huntingdon and Hempfield townships. The plaintiff made title to the lands, under two regular' patents, founded on warrants and surveys.

The plaintiff had issued a distringas and given notice of trial; the defendant had issued a distringas by proviso, but gave no notice; and the plaintiff objected to the defendant’s bringing on the cause.

In this cause a commission had issued to William M’Cleary and John Williams of Morgantown in the state of Virginia, esqrs. to take the examination of a witness on the part of the defendant, dated 13th April 1793. The commission was executed by William M’Cleary only, on the 17th May 1793, and exception was taken to reading the answer of the witness, because both commissioners had not joined.

<p>A witness may, by his own act, dispense with the legal forms of serving a subpoena, and will be under contempt for non-attendance.</p>

<p>Ejectment for 240 acres of land in Leacock township.</p> <p>It was admitted that one Daniel M’Causland was seized of the lands in question. The plaintiffs’ lessor claimed the same by descent as heir at law, being the eldest son of John M’Causland, who was the eldest brother of the said Daniel, and died before him. The defendant, Crawford, claimed under a deed from Daniel, dated 8th December 1772, which was impeached on the grounds of insanity in the grantor, and misrepresentation in the grantee.</p> <p>Both parties went into a considerable detail of evidence to establish their several positions; and after the testimony was closed, the defendant’s counsel moved for the general reply, under the authority in 4 Term Rep. 497. The defendant in ejectment is entitled to the general reply, where the plaintiff claiming by descent, proves his pedigree and stops, and the defendant sets up a new case in his defence, which is answered by evidence on the part of the plaintiff.</p> <p>A motion was afterwards made for a new trial, founded chiefly on misconduct of the jurors who tried the cause. The argument came on in April term 1794, when, after a hearing of considerable length, the court discharged the rule to shew cause why a new trial should not be had.</p>

Ejectment of 69 acres of land in Germany township. The lessor of the plaintiff grounded his title on a sheriff’s deed, founded on a judgment entered on 14th August 1766, against Martin Miller, who was then in possession of the lands, which were sold as his property. The ejectment had been commenced against the said Martin Miller and Daniel Miller his son.

<p>An agreement shall not be set aside, because the vendee did not inform the vendor of circumstances, which the vendor himself was bound to know.</p> <p>When two or more executors sell lands openly and fairly, and they have been bought in by a stranger for one of them, such sale is not void necessarily. It is not merely of itself a fraud to vacate the contract, but matter of evidence to be judged of.</p> <p>Overruled in part in 9 Pa., 285.</p>

<p>Lands intailed descend in Pennsylvania, according to tlie course of me common law.</p> <p>Phe act of assembly of 1705, only regulates the descent of lands among the children, where the father is seized thereof, and might dispose of them by deed or will.</p> <p>Cited in 9 S. & R., 354.</p> <p>Referred to in 28 Pa., 105 ; 37 Pa., 18.</p> <p>Obsolete since tbe Wills Act, of 1833.</p>

Benoni Griffith being seized of tbe lands in question, inter alia, made his last will in writing dated 5th March 1739. Held: Cro. Car. 154, that “unmarried and “without issue,” means only not having issue. [S. C. more fully stated W. J011. 205.] Devise to trustees in fee: if B attains 21, or has issue, to B and the heirs of his body; but if B dies before ax, and without issue, then over. B attains 21 and dies without issue.

Case, non assumpsit and payment. The plaintiff to substantiate his claim to 1251I. us. 5d. Dominica currency, offered in evidence the deposition of George Fitzgerald, taken under a commission.

Covenant. Plea, covenants performed. The plaintiff grounded his suit on an indenture between the parties, dated 2d August 1791, whereby the defendants in consideration of 550I. conveyed to the plaintiff a certain tract of land, situate in Bristol township, in the county of Philadelphia, by metes and bounds, containing 66 ^ acres, (which had been conveyed to King by a sheriff’s deed on the 6th December 1784) subject to the payment of a mortgage of 325I. with a covenant of…

<p>In ejectment for lands on Pine creek, under the act of assembly of 2ist December 1784, it is indispensibly necessary to shew in evidence that the lessor of the plaintiff had paid or tendered the consideration thereof to the receiver general, on or before the 1st November 1785.</p>

The grounds of the motion were: One of the jurors was a brother in law of one of the plaintiffs, but the same was not known to the defendant or his counsel, when he was sworn. Immediately afterwards, notice was given to the plaintiff’s attorney, who agreed to wave the juror, provided the defend ant would consent to swear another in his room, and proceed in the trial; this the defendant’s counsel refused.

Mr. Justice Shippen reported the evidence which appeared before him on the trial, at Lancaster,'on the 30th May last, as follows: It was admitted that John Sproat, one of the defendants, was seized of the premises in question.

<p>A citizen of South Carolina is not within the saving of the limitation act, of 27th March 1713.</p> <p>Cited in 20 Pa., 509, in support of the proposition that the states of the Union are not foreign states to each other.</p> <p>Cited in 33 Pa., 375, to support the decision that the words “beyond sea” in the Act of July 30, 1842, are to be construed to mean “without the United States.” See also 9 S. & R., 266, 288.</p>

Ejectment for messuages and lots of ground in the city of Philadelphia, wherein a case was stated for the opinion of this court, viz. Sarah Parrock being seized in fee of the premises in the… Held: that John Parrock under his sister’s will, took an estate tail. *His issue were to take in succession, [-*304 which they could not do without a previous estate of L inheritance in their father.

DkbT 6ol. sur obligation dated 8th December 1768, conditioned for the payment of 40I. on the 1st January 1769. Plea payment with leave to give the special matter in evidence. The defendant was security for Moore, a blacksmith who was deceased, and worked for the plaintiff by supplying him with sundry articles as an upholsterer.

Indebitatus assumpsit for cooper’s work done in St. Domingo for the defendant; the balance claimed being 490 dollars. Pleas, non assumpsit and payment. The plaintiff was sworn to the original entries in his day book; and a contest arose, whether these entries were any evidence of the prices of the work.

one of the justices of the peace. A very regular and formal return was made to the certiorari, by which it appeared, that after due process issued, judgment had been given by the justice for the plaintiff against one Irwin Armstrong for 61. 15s. 7d. a just debt, on the 23d September 1792: that execution had been respited for six months, on the *said Armstrong entering into recognizance to r*o^o the plaintiff, with the said Pearce as his security, in L the nature of special…

<p>On a promissory note for “lawful money,” given at Wioming in 1778, it shall be intended for so much “ lawful money of Connecticut,” and be governed by the scale of depreciation of that state.</p>

<p>An attorney at law has privilege in being exempted from the office of overseer of the poor, supervisors of the public roads, and constables, but not from arrests or militia duty.</p>

<p>Court -will not appoint auditors under the depreciation act of 3d April 1781, unless it appears that the contract arose betweeen the 1st January 1777, and 1st March 1781.</p>

Supreme Court, January Term; 1793. Philadelphia County, ss. The Declaration. — Tench Coxe, John Reed, and Standish Eorde, late of the county aforesaid, merchants were attached to answer Peter Wikoff and Isaac Wikoff, of a plea of trespass on the case, &c.; and thereupon the said P. and J. by Jared Ingersoll their attorney, complain and say, that on the 1st day of January Anno Domini 1788, at the city of Philadelphia, in the' county aforesaid, a certain dispute waá subsisting…

This cause was tried at the last January term, when a verdict was agreed to be taken for the plaintiffs for 1560I. the principal and interest appearing due on the face of a promissory note,… Held: that it would amount to a promise to pay generally. Ib. The indorsement of a bill after the day of payment is very common and usual, and a very good practice. Ib. 575. Bayl. 16, 17. I Show. 163. The defendant’s counsel had certainly mistaken the meaning of Mr. Justice Buller.

Mr. Justice Shippen now reported the evidence, which appeared before him and Mr. Justice Bradford on the trial at Carlisle, on the 14th May last, as follows:' ■ The suit was a scire facias upon a judgment obtained in the Common Pleas of Cumberland county, in October term 1775,. by the plaintiff’s testator against the defendant.

<p>Order of removal of a pauper must state, that complant was made by the overseers of the poor of the township removing, and an adjudication or assertion, that the pauper was likely to become chargeable; otherwise the order will be bad.</p>

WRITS, in the nature of writs ad quod damnum, had issued between the said several parties, under the act of assembly passed 29th September 1781, enabling the governor to incorporate the plaintiffs into a company. Inquisitions had been executed, valuing the damages done to the several defendants, and were returned.

To a habeas corpus, under the act of 1785, returnable forthwith, to bring before the court the body of negro Robert, Mrs. Mary Weed the gaoler, made return, that the said negro Robert was detained by her under a commitment of Hilary Baker, esq. one of the aldermen of the city of Philadelphia, as the runaway servant of Anne Tharp, the widow of William Tharp, late of the said city, deceased.

One John Montgomery, jun. attorney at law, of Carlisle, had been indicted in Mifflin county, for an assault and battery under very aggravated circumstances, and escaped into Maryland. The governor of this state had demanded him from the executive authority of Maryland, uiider the 4th article of the constitution of the United States, and he was sent up accordingly to Mifflin county.

This was a question between two French subjects, refugees . from the island of St. Domingo. The defendant had been discharged on common bail, on a hearing before Mr. Justice Shippen, and the plaintiff had appealed to the court.

<p>A French, subject, who has taken the oath of allegiance to the United States, is not within the 12th article of the convention between America and France, dated 14th November 1778.</p>

<p>Motion for a new trial on the part of the defendants, and a rule to shew cause had been granted.</p> <p>The action had been tried at Lancaster the last October assizes,' before M’Kean C. J. and Yeates J., and a verdict had passed for the plaintiff.</p> <p>The new trial had been pressed on five grounds:</p> <p>ist. That the verdict was against the weight of evidence.</p> <p>2d. That Herman Skiles, one of the jurors, some weeks before the trial, had betted a pint of wine with colonel James Mercer, that a verdict would go for the plaintiff, and thereby shewed his partiality.</p> <p>3d. That five of the jurors eat or drank during the trial, at the expence of one of the lessors of the plaintiff.</p> <p>4th. That two of the jurors declared their opinion in favour of the plaintiff before they heard the testimony.</p> <p>5th. That Herman Skiles aforesaid, and two others of the jurors, threatened to throw three others of the jury, who dissented from them in opinion, out of the window of the second story of the Court House, where they were deliberating on their verdict, unless they would agree to find a verdict for the plaintiff.</p> <p>Affidavits were agreed to be mutually taken on both sides, upon a cross examination of the witnesses, to be read in evidence at the argument; and three witnesses were examined viva voce in court.</p> <p>* The result of the testimony arising therefrom was as follows. L</p> <p>O11 the second ground; Skiles did bet a pint of wine with Mercer, two or three wepks before the trial, that the plaintiff would gain the cause, before he was struck as a juror. He also several times expressed himself that the defendants would lose the action, and this did not come to their knowledge till the jury were sworn. On the other hand, it was proved that Skiles had expressed himself differently at other times, and offered to bet 2 to 1 against the plaintiff’s success. He actually did lay a gallon of wine with one person, and one-half pint with another, that the plaintiff would miscarry. When Mercer paid the bet, Skiles did not recollect that he had laid it.</p> <p>On the 3d ground: Several of the jurors drank in company with William M’Causland, jun. during the trial, which continued five days, and one of the jurors eat with him; but it did not appear that any private conversation took place between them, or any observations made respecting the merits of the cause, nor was the drinking or eating proved to be at his expence. Several of the plaintiff’s witnesses lodged at the same inn with some of the jurors, and the aforesaid William visiting those houses occasionally, fell into company with the jurors, and they severally called for pints of wine, of which the whole drank, but each paid for his pint, as his club of the liquors introduced. It was sworn by Michael Rhine, however, that the aforesaid William, after the first motion made for the new trial, had said to him, that no one but himself could prove the fact of his treating the jury': but it was not proved by Rhine on his examination, that he did treat the jury, otherwise than as above stated.</p> <p>On the 4th ground; three of the jurors on the cause being opened by one of the plaintiff’s counsel, declared their opinions then to be with them, before the witnesses were sworn. And one of the jurors swore that he was still dissatisfied with his verdict.</p> <p>The 5th ground appeared by no means supported by proof. The expressions which had been made use of were delivered in jest, and did not in the least degree intimidate the dissenting jurors. It was therefore abandoned on the argument.</p> <p>In the course of reading the affidavits, the deposition of William Crawford, the son of one of the defendants, was offered to the court; but on an objection being taken that he was entitled as a remainder man after his father’s death, under the deed by which the defendants claimed, and therefore interested, he was waved.</p> <p>The defendants counsel made no observatipns with respect *8741 to * °f evidence, but submitted that point solely to the report of the judges who tried the cause; agreeing, that when no direct charge had been given to the jury, the court should exercise their superintending powers with caution.</p> <p>Their example was followed by the plaintiff’s counsel, who barely cited 1 Burr. 397. 5 Bac. Abr. 246.</p> <p>On the 2d ground, the defendant’s counsel contended, that where a fair trial had not been had, the court would interpose, and grant a new trial. Skiles’s mind was not as white paper. He had laid bets on both sides, and therefore evidence on such a man would not make the proper impression. The act of assembly prescribing the sheriff’s oath as to returning an indifferent jury, (2 Dali. Daws, 262, § 2,) and his fixing up lists in his own and the clerks offices seven days before the court, (lb. 264, 6, 8,) in order that the parties might make their challenges, would furnish no means of knowledge concerning Skiles’s betting on the event of the cause. The defendants knew nothing of his wagers at the time of the jury being sworn, and therefore could not challenge him. The quantum of the bet made no difference in law.</p> <p>A juror should be as white paper, superior to all suspicion of partiality. 1 Bl. Rep. 481. Discovery of material evidence after trial, as peijury and combination of witnesses, new trial granted. 3 Burr. 1772. So of a receipt found after the trial. 2 Bl. Rep. 955, 956. Motion for a new trial not to be made after motion in arrest of judgment; aliter where the matter on which such motion is founded wn.S hot cjiscoyered till after-wards. 5 Bac. 239. Matter discovered after the trial is a good ground for a new trial. 12 Mod. 584. 21 Vin. 493, pi. n. Cause of challenge not known at the trial, will warrant the granting a new trial, n Mod. 119. 7 Mod. 54. 5 Bac. 243. And it has been even carried so far, where the cause of challenge was known at the trial. Corny. 602. A juror challenged and afterwards sworn" as a talesman by a wrong name, is a ground for a new trial, though no fault be found with the verdict. 2 Lord Raym. 1410. S. C. 1 Stra. 640. Solicitor misbehaving himself by writing letters to two of the jury before the trial, importuning them to appear, and setting forth his client’s hardships, and that he had verdicts for his title, the trial set aside. 2 Vent. 173.</p> <p>To which it was answered by the plaintiff’s counsel, that this was as fair a trial as could possibly be had, under the circumstances of the case. The point in controversy was the sanity of Daniel M’ Causland, and must frequently have been matter of conversation in the county of Lancaster. Different sentiments * would be formed on the different representations of the case made to individuals, and it is not L wonderful, that wagers should be laid, according to the impressions made by the several 'stories. Skiles knew nothing of his being on the jury, when he laid the bet. But it could not prejudice his judgment against the defendants. The influence, if any, was the other way. He had laid three wagers, one gallon, and one half pint on the defendants, and one pint on the plaintiff; which was above eight to one in the defendants’ favour. Great inconveniences would arise from adopting the defendants’ objection at this period. They ought to have made it earlier. If they really did not know of the wager, when the jury were sworn, they knew it shortly after. The party should not lay by until he knows the event, and then make his exception. The case of Spong et al, v. Lesher is much stronger than the present; there a communication was made immediately by the defendant’s counsel,' of the near affinity of a juror to one of the plaintiffs, but the court would not grant a new trial. If jurors by laying wagers on one side of the question can incapacitate themselves from acting in that character, difficulties enough will occur, in procuring juries in causes of any magnitude. The act of assembly which has been quoted by the defendants, goes as far as human wisdom can devise, to give the parties an opportunity of making their challenges. A particular case occurring, ought not to alter the law.</p> <p>A principal challenge to a juror, is where there is express favour or malice, and disqualifies at once: but a challenge to the favour is discretionary in the court. Co. Lit. 157. b. A challenge must be made before the juror is sworn, and cannot be received afterwards, though on an indictment for murder. Yelv. 23. The same law obtains in civil suits; 2 H. H. P. C. 274; and the principle is recognized, though the objection be not known at the time. Co. Eit. 158. a. 2 Rol. Abr. 658. pi. 5, 6.</p> <p>So where a juror was related to one of the parties. Style, 100. The party loses his challenge by not making it in time. — lb. 129. So where a juror was related 'to one of the creditors of a bankrupt. 1 Vent. 30. " And it appears by the same case in' 2 Keb. 498, that the cause of challenge was not known at the time. A juror being of kin in the ninth degree is a principal cause of challenge. 3 Bl. Com. 363. The present objection is analogous to an exception against the competency of a witness, which must be taken before he is sworn and examined, otherwise it comes too late, and the party shall not afterwards avail himself of it. 4 Burr. 2252.</p> <p>On the third ground, the counsel for the defendants insisted, that the evidence proved the fact, that one of the lessors of the *87ñl * plaintiff had treated the jury. The consequences oí J such practices must be very obvious. They engage the gratitude of the jury, and lay them open to improper impressions.</p> <p>The evidence openl}'- given in court will have little effect where such methods obtain. The drinking publickly, or the jurors calling for wine, makes no difference as to the rule of law. If jurors eat or drink at the charge of him, for whom the verdict is given, before they are agreed on the verdict, it will avoid it. Bull. Ni. Prius 303, 820. 4to. edt. 12 Mod. in.</p> <p>To this the plaintiff’s counsel remarked, that the fact was not proved. It must clearly appear, that the treat given was by and at the expence of the party, or some agent for him. 1 Vent. 124. 1 Tri. per Pais 260. (8th edit.) William M’Caus-land, junior must necessarily at some times have met with some of the jurors in the taverns where his witnesses lodged; and it was impracticable for him during the ‘crowd of the assizes, always to obtain a private room for his refreshment. His drinking with some of the jurors, out of the same bottle or pint, where each paid his proportion of the liquor, though the specific wine of each could not be distinguished, without conversing on the merits of the cause, could produce no improper effect. The juror who eat with him paid his own club, and did not sup at his expence. Rhine must have mistaken his expressions, that no one but he could prove that he had treated the jury; inasmuch as upon his examination he could not ascertain the fact. In Bull. 303, 4to. edit. Cro Jac. 21, it is laid down, that the misbehaviour of the jury ought to be certified by the judges on the postea.</p> <p>On the fourth ground, the defendants contended that the premature declarations of some of the jurors before the evidence was heard, clearly evinced their partiality for the plaintiffs. Jurors should be omni exceptione majores; if they have declared their opinions it is a good cause of challenge. Bull. 303. New trials are granted where any of the jury declare, that a party shall not have a verdict let him produce what evidence he will. Ib. 320. 2 Salk. 64-5. And where a juror declared at the view, that by what they had seen, they should soon determine the dispute; and the day before the trial, said, the plaintiff was a neighbour, and right or wrong he would give it for him, — though these words were even known before the trial, the court granted a new trial, against the opinion of Baron Parker. Corny. 602. This prejudging of a cause is a most effectual bar to the admi * nistration of justice, poyr Besides one of the jurors swears, he is now dissatisfied *- with the verdict.</p> <p>The plaintiff’s counsel observed, their remarks under the second head were equally applicable to this point. It could not reasonably be expected, that the minds of jurors taken de viceneto could be as white paper. This had been a case of great public expectation, and many people must early have formed ideas of the event. In the remarkable case of Thune on a policy of insurance which had been often tried, three of the jurors declared, that they had made up their minds on the representations made to them of the circumstances attending it; yet though this was known to the court, they were ordered to be sworn. — No case can be cited where a verdict has been set aside, merely because a juror has expressed an opinion after the court being opened, or before; this is materially different from a juror saying he would find in one way at all events. When such sentiments have been disclosed by a juror before he is sworn, it may be a cause of challenge to the fa-vour, but this is no ground for a new trial under any adjudication we have met with. There must be malice or favour in the words of a juror, to make them a principal cause of challenge. 21 Vin. 266, pi. 8. 2 Hawk. 418, § 28. 2 Rol. Ab. 657. 3 Bac. Ab. 259. Brook, Challenge, pi. 55. F. N. B. 22. 1 Tri. Per Pais 189, (8th edit.) As to the juror who is still dissatisfied, his scruples can have no weight; they have probably been superinduced by communications since the trial. Jurors shall not be permitted to invalidate a verdict which they have given. 2 Bl. Rep. 803. Sayer’s Rep. 100. 2 Term Rep. 281. Andrews 382. Finally they said,</p> <p>The case in Corny. 601, 602, so much relied on, cannot be law from the reason of the thing. Besides it stands opposed to all the authorities, particularly those in Style 100, 129. 11 Mod. 119.</p>

<p>Debt 939I. 8s. rod. sur obligation dated 29th November 1784, conditioned for the payment of 469I. 14s. 5d. and interest on the 29th April 1785.</p> <p>Plea, payment with leave to give the special matters in evidence. Replication non solverunt and issue.</p> <p>The case ou evidence turned out as follows:</p> <p>Nathaniel Ring being seized (inter alias terras') of a tract of land in West Marlborough township, called the “Indian Fields,” containing about 140 acres, by will dated 29th November 1766, devised the one third of his whole estate to h-is wife Elizabeth; and after bequeathing several pecuniary !ega-cies, devised the residue of his estate to Hannah, the wife of Thomas Gibson.</p> <p>Elizabeth Ring, his widow, by will dated 17th January 1784, after bequeathing sundry legacies, “willed and allowed “her plantation called the Indian Fields, to be sold by her “executors, at which time they should see to he best com ‘ ‘ venient after her decease, and what would remain from the ‘ ‘ sale thereof to be divided in proportion among her legatees. She appointed Joseph Spear, the plaintiff, and one Jacob Chandler, since deceased, her executors thereof.</p> <p>On the 29th April 1784, the “Indian Fields” tract was put up at vendue and sold at 81. 19s. 6d. per acre, to James Hannum, one of the defendants; the one moiety to be paid when he should receive possession, and the residue on the expiration of one year, with interest. The executors agreed to give a sufficient deed in fee, when one moiety of the money should be paid, by the conditions of sale.</p> <p>Previous hereto, on the 24th July 1765, the said Nathaniel Ring and Elizabeth his wife, had executed a mortgage to Joseph Parker of the Indian Fields tract, together with a grist mill and saw mill, and 100 acres of land, and another tract of 200 acres, to secure the payment of 691I. ios. and interest.</p> <p>*3811 *On November 1784, the defendants ex- -* ecuted a bond of indemnity to the plaintiff and Chandler, wherein, after reciting the mortgage to Parker, Hannum covenanted to take the mortgage on himself in part of his purchase money, and procure a release of the liens of the other two tracts by the 29th April 1785, and generally to indemnify the executors by reason of the mortgage, against all damages and costs.</p> <p>He then also executed the bond, which was the subject of controversy for the balance of the purchase money and interest, deducting the amount of the mortgage and interest, and 126I. which he paid on account, and received a deed from the executors for the Indian Fields Tract, subject to the mortgage; with no other covenant therein, than that they had suffered no incumbrances thereon.</p> <p>On the 2d December 1784, Mary Norris, administratrix of Joseph Parker, entered up judgment on the bond accompanying the mortgage.</p> <p>On the 1st September 1785, and 31st October 1786, three other judgments were entered against the executors of Elizabeth Ring, and one.judgment against the executors of Nathaniel Ring, for 36I. 7s. 4d. the whole amounting to 328I. 18s. 3d.</p> <p>Thomas Gibson and Hannah his wife, the residuary devisee of Nathaniel Ring, having brought their action for the sum due to them under the will of the said Nathaniel, to February term 1785, against the executors of Elizabeth Ring, obtained judgment therein on the report of referees, in the Common Pleas of Chester county, in September term 1788, for 1256b 4s. 4E?d. and 73I. 3s. 6d. costs, which, on being removed into the Supreme Court by writ of error, was affirmed on the 7th October 1790.</p> <p>Afterwards, in pursuance of a levari facias issued on the judgment founded on the mortgage^ the Indian Fields Tract was sold for 454I.; the grist mill and saw mill, and 100 acres of land, for 518I.; and the 20.0 acres tract for 330I. by the sheriff, on the 19th January 1789, by way of public vendue.</p> <p>On the judgment of Gibson and wife, three other tracts of Elizabeth Ring’s land were sold by the sheriff on the nth March 1791, for 1405!.</p> <p>It appeared in evidence that Hannurn, shortly after the sale of the Indian Fields Tract by the executors, entered thereon and held the possession until the sale under the mortgage; but that in the latter end of 1785 or beginning of 1786, he demanded security for his title, alleging that he was not safe in paying his money without it, and further saying that the executors should repay him his money and take back the tract. Rands had greatly sunk in value at this period.</p> <p>* On the other hand it was shewn, that Gibson had r*ooo engaged to Hannurn, that nothing should be want- L ing on the part of himself or his wife, to strengthen his title to the Indian Fields Tract; and Gibson directed the under sheriff not to levy on that tract under his judgment, as it was already sold at so good a price.</p> <p>On the part of the plaintiff it was urged, that by the defendant’s breach of contract, a great destruction of property had taken place. Had they paid according to the condition of their bond the price of the Indian Fields Tract, two other valuable tracts would have been saved from a sheriff’s sale. The whole estate was wasted, and 600k of debts and legacies remained unpaid; whereas, by a fulfilment of their agreement, it would have produced a neat balance of above 2000I. after discharging every demand against it.</p> <p>It is to be presumed that Hannurn knew at the time of sale of Parker’s mortgage, from its notoriety in the neighbour-hood; but admitting that he was then unacquainted with it, he by his bond of indemnity at a subsequent period, took that incumbrance on himself, and agreed to discharge it. He accepted a conveyance subject to the mortgage.</p> <p>He might have been made perfectly secure in his right, by either purchasing the lands at the sheriff’s sale, or by paying off the mortgage and taking an assignment thereof. There is no reasonable ground to suppose he would have been bid upon, and it never was required that he should surmount the stipulated sum. A mortgagee till he is fully satisfied, is not obliged to quit the possession to a purchaser. 2 Atky. 2. The assignee of a mortgage stands precisely in the same state as the first -mortgagee, except that the interest in arrear would form part of a new principal, carrying interest. 2 Corny. Fig'. 303. Hannurn would therefore have been invulnerable in all possible circumstances.</p> <p>It was not reasonable to ask security of executors for acts done in the discharge of their duty; nor is there any proof of a promise by them to give such security. The vendee was satisfied with the covenant in his deed, that the executors had suffered no incumbrances: it is therefore similar to the case of lands sold and conveyed with special warranty, and the purchaser afterwards insisting on a new and general warranty. The contract was fully completed when the deed was executed and the bonds given, and nothing remained to be done by the executors. Gibson and his wife were bound by their engagement, and the law would not have permitted them to recede therefrom. Their promise in this particular was equivalent to a release.</p> <p>The cases of Graff v. Smith’s administrators (Dallas 481) *3831 an<^ * Morris’s lessee v. Smith determined in bank, -* April term 1793, on a case stated, do not prove the defendant’s doctrine. They go no further than to establish a lien in favour of creditors, in the instance of an intestate’s heir selling to a third person. No part of the reasoning in the former case of Mr. President Shippen, applies beyond the instances of an heir or devisee; and his observations fairly construed, are referable only to those two cases. The principle which he lays down does not apply to an executor selling lands in pursuance of an authority; for there is a privity between the creditors and executor, though not between them and the heir or devisee; and on the same ground that it is resolved in Dali. 486, that lands sold by an administrator in pursuance of an order of Orphans’ Court, cease to be assets, and are freed from any supposed lien of debts, lands sold bona fide under a power in a will, must also be exempted from any responsibility to creditors.</p> <p>Where there is a trust or devise for payment of debts generally, a purchaser is not obliged to see to the application of his money, as he is when there is a schedule or particularizing of the debts. Ambl. 189. Cases of fraudulent sales are exceptions to the general rule, and they will clearly be bad. Ib. 2 Vern. 616. At law an executor may alien the assets of a testator, and when aliened no creditor can follow them. Where the alienation is bona fide and for a valuable consideration, equity also suffers it. 1 Atky. 463. 2 Atky. 41. 3 Atky. 237, 341.</p> <p>It may be urged, that debts by our law are liens on real estates, where a person dies either testate or intestate. We deny that doctrine in the large extent, though we admit them to be funds out of which debts must be paid in case of a deficiency of personal property. We view them merely as assets, and when sold by an administrator in due course of law, or by an executor in pursuance of a proper authority bona fide, they can be no more recurred to, than goods or mere chattel interests sold in the proper course of administration.</p> <p>In England, where the debt is a specialty, lands remain-chargeable, unless the heir sells them before the suing of the writ. Why shall not the same doctrine hold here, where a power is given to executors to sell ? There is nothing in our peculiar customs or the texture of our laws which interdicts it. But to say that the lands after such sale remain chargeable to creditors, is in effect declaring, that such powers in a will are fruitless and nugatory; for, who would buy from executors if such were the law? How can a fair purchaser be supposed to know of the existing debts of a testator, unless he particularizes them in his will? If such were the decisions, he would be bound to look to the appropriation of his money.</p> <p>*We have been taught to believe, that the vesting [-*304. executors with authority to sell lands, in order to pay *- debts and legacies, is extremely beneficial as well to creditors as legatees. But if the doctrine of the defendants is sanctified, no titles will be deemed valid, unless secured by the instrumentality of sheriff’s sales, and the money intended, by the justice or bounty of a testator, to go into one channel, will be diverted to the payment of accumulated costs, and the purposes of the will will be effectually frustrated.</p> <p>On the part of the defendants it was contended, that the evident intention of the contract, which gave birth to the bond, was that the vendee should be secure in a sufficient title. He was not bound to pay in the first instance, and afterwards wait for his right. The executors had sold lands under mortgage, without acquainting Hannum therewith, which was a legal fraud in them.</p> <p>The suit of Gibson and wife was brought to February term 1785, and operated as notice of a claim on the lands agreed to be sold. The condition of the present bond was to pay at a subsequent period, viz. on the 39th April 1785. If it should be supposed that these lands were exempted by the sale, from the lien of Elizabeth Ring’s debts, still the step pursued by Gibson and his wife, would make any prudent person cautious in paying until he was fully indemnified. But the laws of Pennsylvania are favourable to the claims of creditors from its first settlement.</p> <p>The case of Morris’s lessee v. Smith, determined that lands aliened bona fide by the heir, were subject to the debts of the ancestor. It must now therefore be conceded, that lands are •bound for the payment of debts, in case of an intestacy. Why should not this equally hold in the case of a will? Can a person by sealing and publishing a paper, effect so material a change?</p> <p>In the case of Graff v. Smith’s administrators, (Dali. 481,) this doctrine is very fully considered by Mr. President Ship-pen, and (in pa. 484,) he draws.this general deduction from the whole of his reasoning, that the “lands of deceased per“sons have always heretofore been considered as liable to be “taken in execution for debt, in the hands of a purchaser “from the heir or devisee.” Now what sound reason can be given, that a difference should be made between the case of a purchaser under a devisee, and under executors having authority to sell real property? Their powers are derived equally from the same source, the will of the testator. But it is said that a distinction has been drawn, in Dali. 486, be-*38^1 tween purchasers from administra * tors under an order J of the Orphans’ Court, and voluntary purchasers from an heir. To which it may be answered, that this is but an obiter dictum of the president, the point confessedly not being regularly before the court. Taking it however to be otherwise, there is this striking difference between the cases. There the administrators sell by the words of a positive law, which gives jurisdiction to the Orphans’ Court. The intention of the legislature must necessarily have .been, that the lien of the creditors in such cases, should be taken away and destroyed; otherwise the law would be fruitless, and attended with consequences manifestly injurious to society. Here the purchaser could shelter himself under no positive law, and he contends that the title was never so absolutely vested in him, as to be freed from the claims of creditors under the deed from the executors. Were the doctrine contrary to what we insist on, great frauds might be practised by testators, their executors, and purchasers under them, which would in most instances, escape detection.</p> <p>It is admitted that in England, executors selling lands under a general authority, without a schedule of debts and legacies, the vendee is not bound to see to the application of the money. But in that kingdom, lands are not subject to the payment of simple contract debts; and in the case of specialty debts, where the heir at law aliens lands bona fide, before the action brought, such lands shall not be liable to execution, by the express provision of 3 and 4 W. and M. c. 14. It is evident therefore, that under the municipal laws of that country, the creditors have only an eventual lien on the lands of a deceased person, depending on their own acts, and those of the heir or devisee. But under the spirit and true intent of our laws, there is a general pervading lien on the lands immediately on the decease of the party. It is then asked, if a case can be shewn in England, where, when the lien is attached by a suit on a specialty debt, a subsequent sale by an heir or devisee can destroy such lien? If no such instance can be shewn, there are strong features of resemblance between the law there, and the general lien which prevails in Pennsylvania, on the death of a testator or intestate. The case of a testator directing lands to be sold for payment of his debts, in some degree resembles schedule debts. It operates as notice to a purchaser to guard and protect himself.</p> <p>On the point of general inconvenience, it is submitted whether greater evils would not result to creditors, from lessening their liens, than the accumulated costs which would arise from sheriffs’ sales.</p> <p>The plaintiff had no reason to expect, after instituting a •Suit against Hannum, that he should buy in his lands for his own * protection, at a sheriff’s sale. Besides he might r*oof> have been bid upon; and if he was to be thus secured, <- he might have been obliged to buy beyond the terms of his contract. If Gibson and his wife meant to strengthen Han-num’s title, why did they not execute a release and tender it to him? Their original suit evidently impeached his title. In debt on bond, on the plea of payment, every thing shall be presumed to be paid, which in conscience ought not to be paid. Dali. 260. A sells to B, with covenants, only against himself and those claiming under him; the lauds were evicted by title paramount; B was relieved from payment of the purchase money, which he had secured, seeing the land was lost. 1 Equ. Ca. Ab. 27, pi. 2. A man bought his own lands of another and paid the money, he will be entitled in equity to recover back the money with interest and costs. 1 Vez. 126.</p> <p>[A bill of exceptions was drawn up by counsel, and signed by the chief justice, and a writ of error was afterwards brought on the judgment on this verdict, returnable to the High Court of Errors and Appeals, and the judgment was afterwards reversed 16th September 1795, on a different ground from that taken at the trial.]</p>

Dower of 250 acres of land in Sadbury township. Plea, ne unques seisie que dower, with leave to give the special matters in evidence.,' The case in effect was: Joseph Sharp married the demand-ant, and afterwards became seized of the lands in fee tail under the will of his father. In 1784 two judgments were obtained against him, and the sheriff on the 30th September 1785, sold and conveyed the premises to Thomas Allen, who conveyed to the tenant.

<p>. Ejectment of a messuage and garden in Mannor township.</p> <p>The lessor of the plaintiff claimed title under the will of his father in law, Thomas Patton, who died seized of the premises in fee. He devised “to his wife Summer Patton, the house “whereon he dwelled, and the profits of his farm during her ‘ ‘ natural life, and after her decease all -his land in Mannor “township to Philip Gallagher, &c.” ' The widow was since dead.</p> <p>The defendant was also a son in law of the testator, and contended that the will was made by undue influence of the wife and imposition practised on him, and that Gallagher had joined her in this business.</p> <p>To prove this, the defendant’s counsel offered Peter Row as a witness, to shew that Summer Patton, after her husband’s death, had made declarations of this nature to him, and cited 1 Black. Rep. 345. S. C. 3 Burr. 1244.</p>

Debt 152I. 5s. sur obligation. Oyer of specialty and special imparlance. Plea, payment with leave to give the special matters in evidence, with notice of set off. Replication, non solvit, and issue.

Debt on recognizance, on the valuation of the real estate of a person who had died intestate.

EjBCTMBNT of 300 acres of land in Martick township. Held: the lien continued although a bond was given on the sale of lands;” — -and in Eowel v. Heelis (particularly stated in the note there) the ground of decision is stated by Mr. Mansfield (lb. 422) “not only that the party had taken bonds, but had given up the deeds. ’ ’ We may say with Ld. Ch. Just.

<p>Where a dispute had been submitted to arbitrators, and a witness had been sworn before them, who is since dead, his deposition shall be read in evidence between the same parties.</p>

<p>On an indictment for uttering and publishing a forged deed, knowing the same to be forged, the party injured is a competent witness.</p>

ISSUE was joined in this cause, to ascertain the distance of the northern boundary of Dock street, from the south side of Walnut street, on the east side of Second street. For the appellant it was moved, that a subpoena with a clause of dtices tecum, should issue to the surveyor general, to bring with him certain original papers from his office.

<p>On issuing subpoenas in cases of divorce, a rule may be made to take depositions before the return thereof.</p> <p>Cited in 1 Miles, 284.</p>

<p>A commission to examine witnesses executed irregularly, the witnesses not being examined to the interrogatories, depositions cannot be read in evidence.</p>

<p>A pre-emption warrant granted to the plaintiff in ejectment, under the act of 21st December 1784, though he has not been on the Pine Creek lands since the commencement of the late war, shall prevail against a defendant, who has not taken out his warrant until after the 1st Nov. 1785.</p>

Assumpsit for the non-transportation of a quantity of flour to the island of Madeira. The case was this. The defendants under the firm oí Woodrop and Joseph Sims, advertised in the public newspaper, the sailing of the brig Molly, Thomas Willes, master, to Madeira, and that persons desiring to freight, should apply to them.

EjECTMBNP for a lot of ground in the city of Philadelphia. The question turned on the last will of James Parrock, dated 24th May 1754, who, it was admitted, died seized of the premises.

<p>Qu. Whether an English merchant can recover for premiums on insurance of goods shipped, where the same has been ordered, unless he produces the policies or accounts for their loss?</p>

<p>Under the 6th section of the act of assembly of 22d April 1794, “for the better preventing of crimes ” in order to convict on the first clause, there need only be a general intent to maim and disfigure; but on the second clause, there must be a particular intent to put out the eye. What the legal sense of the word malice.</p> <p>The malice and lying in wait need not be expressly proved, but may be collected from all the circumstances of the case.</p> <p>The declarations of a deceased person shortly before his death, who had been bound over to answer a charge of maihem, cannot be given in evidence by the other defendant.</p> <p>Cited in 6 S. & R-, 225, where it was decided that an indictment for an assault and battery with intent to kill, is not vitiated by slating that the defendant did bite or cut off the ear, etc., the assault and battery with intent to kill being the offense which is punishable, and the injury inflicted merely a circumstance of aggravation.</p>

A RULE had been granted on the defendant, a justice of the peace of Northumberland county, to shew cause why an information should not be filed against him for misdemeanor in office, founded on the affidavits of William Wilson and John M’Phersou, esquires, two of the judges of the Court of Common Pleas of the said county.

<p>Devise by testator to his wife, not expressed to be in lieu of her dower, and where her claim of dower is not inconsistent with or in contradiction to the will, the widow is entitled to her dower at common law.</p> <p>A devisee may recover in ejectment in such a case against the widow, without previously assigning her dower.</p>

Ejectment for lands in Delaware county, tried at the last May assizes at Chester before M’Kean C. J. and Yeates J. A verdict had passed… Held: that it is not necessary to hold inquisitions in the case where life estates have been seized in execution, because of the uncertain *ty of their duration; and the same principle [-*400 extends to reversions and remainders where they de- *- pend on life estates, because no one can ascertain the period of their commencement, and the…

<p>. Under the act incorporating the Delaware and Schuylkill Canal Company, the jury shall judge whether a bridge or ford be necessary, but cannot find that neither is necessary.</p> <p>Roads private or public laid out after xoth April 1792, shall not be bridged by the company, across the canal.</p>

<p>Parol evidence is not admissible to supply, contradict or explain the written words of a will. On a devise of lands in trust, the rents and profits to go to a feme covert during life, unless it can be collected from the words cf the will, that it was intended for her separate use, her husband is entitled to them.</p> <p>In 4 R., 67, ICEjstnbdv, J., said that the decision of Torbert v. Twining had become a rule of property in the state.</p> <p>Referred to in 7 S. & R., 114.</p>

Ejectment for lands ill Amity township, in Berks county, tried before Mr. Justice Smith, at the last May assizes at Reading. It was admitted on the trial, that one Mouutz Jones was seized of the premises in fee. It appeared by the deposition of Peter Eeikens, taken under a commission, that Mountz Jones had conveyed the premises to Andrew Eeikens and his wife for their lives, remainder to the deponent, his heirs and assigns, by deed of gift.

<p>Cases of prize and tbeir consequences are exclusively of admiralty jurisdiction.</p> <p>No action -will lie against a judge for wbat be does in tbat character.</p> <p>Non-payment of money at the day is a forfeiture of a counter bond.</p> <p>Qn. Whether an appeal will lie from the general verdict of a jury in the case of a prize, taken by citizens of the United States, and where the contest is between them only, under the act of assembly of September 9th 1778?</p>

<p>Where the voyage is lost, though the property insured be not damaged to one half of its value, the insured may abandon and claim as for a total loss; but if lie receives intelligence of a loss from one who is not his factor or consignee, and acts in pursuance of it, hut does not quickly and unequivocally make an abandonment, he shall not afterwards on subsequent events turn a partial into a total loss.</p>

The mayor returned, that the defendant was summoned before him to answer the plaintiff in a plea of debt under 40s. ‘ ‘ for placing goods on the footway of the street, and on “his porch,” contrary to an ordinance of the mayor, aider-men and citizens of Philadelphia intituled “a supplement to “an ordinance, intituled an ordinance for the suppression of *4721 1' nuisances, and enforcing * useful regulations within J “the city of Philadelphia.” The defendant appeared before him…

<p>A mortgage payable by instalments, all of which become due within seven years next after an inquisition taken, must be taken into consideration by the jurors.</p> <p>Explained in 3 P. & W., 477.</p> <p>Cited to show that if a judgment is not restrained for more than seven years by stay of execution, or a mortgage is due and payable -within four years, they both come within the meaning of the term reprises.</p> <p>Cited in 5 S. & R., 130; 8 S. & R., 501; 9 S. & R., 338; 4 Rawle, 290; 6 Wh., 422 ; 11 Pa., 385, to show that the doctrine of market overt does not exist in Pennylvania.</p>

<p>Mandamus will not lie to the guardians of the poor in the city of Philadelphia, to continue three of the old managers to _ superintend the alms house and house of employment for the succeeding six months.</p>

<p>No markets overt in Pennsylvania for the sale of goods.</p>

<p>Interest is due on a parol award for the sum awarded.</p>

Indictment, misdemeanor. It contained two counts under the act of assembly of 29th March 1788. 2 Dali. St. Daws, 589. 1st, That the defendant by fraud seduced negro Toby into New Jersey, with a design and intention of selling him as a slave. 2d, That he caused him to be seduced into New Jersey with such design, &c. Before the jury was sworn, it was admitted that the prosecution was carried on by the society for the abolition of slavery, incorporated 8th December 1789, by law.

Assumpsit for iooolbs. coffee at 13d. per pound; amount 54l 3s- 4 The defendant gave in evidence, a sentence of condemnation in the District Court of the United States against the coffee as contraband, on the 26th July 1793; and it was admitted, that an information was filed against him for 400, dollars, the penalty under the act of congress. *The plaintiff’s witness swore, that the coffee was 'r*4«4 delivered to the defendant in June 1793, between 10 *- and 11 o’clock at…

Assumpsit. The plaintiff shipped from Philadelphia to the defendant in Charleston, 3 casks of gin and 4 casks of apple whiskey, on the 5th April 1793, and addressed a lettei to him of that date, directing him “to receive and sell it on ‘1 its arrival, and remit the produce by the same vessel, or any ‘ ‘ other vessel to Philadelphia, in bank notes. ’ ’ The defendant wrote him an answer on the 26th April following, informing him that money was scarce in Charleston, and the…

This was a scire facias on a foreign attachment against the garnishee. The original attachment was issued in the Court of Common Pleas of Philadelphia county, returnable to December term 1783. The scire facias was returnable in the same court to September term 1790, and removed into this court by a certiorari in March term 1791. To this scire facias issued in the common form, the following plea in abatement was put in, on the 5th September 1791.

<p>Certain inquisitions, founded on writs of this court, were returned by the sheriff, valuing certain confiscated real estates and ground rents, which had before been vested by law in the plaintiffs, and of which they were afterwards evicted or dispossessed.</p> <p>Mr. Ingersoll attorney general, objected to the confirmation thereof. He contended that the trustees could not be considered as purchasers, under the 9th section of the act of 29th March 1779. The word “purchase,” as applied to the university, could not be contradistinguished from “ descent,” for by the latter title they could not take. It must be intended, that it was used by the legislature in a vulgar sense, the buying of land for a valuable consideration; 2 Bl. Com. 241; and as the titles flowed from the bounty of the state, it was not bound to indemnify them in case of losses.</p>

<p>Persons not entitled to pre-emption of Indian lands, under the act of 21st December 1784, who did not occupy the same after the commencement of the war.</p> <p>Persons may estop themselves, not others by mutual agreement.</p>

<p>Where a settler on the Indian Lands has occupied them until the war broke out, and then enlisted as a soldier, he is within the meaning of the pre-emption act of the 21st of December 1784.</p>

The lessor of the plaintiff claimed under an application filed in the land office, a survey in 1767 and a re-survey in 1786, the expenses of the latter of which he had paid. A deed from divers persons, said to be the children of Charles Sparks, (who entered the application,) to the lessor of the plaintiff for the lands in question, was shewn, dated 23d November 1786, wherein was inserted a covenant that the youngest son should convey, when of full age.

<p>Statutes formerly construed liberally, on a change of circumstances to receive a strict construction. Indictments for forcible entry and'detainer to be discouraged, unless there is ane evident force against the party in actual possession.</p> <p>Cited in 50 Pa., 489; 1 Ash., 146.</p> <p>Approved in 116 Pa., 157, where the court said: “As was said in Res-publica v. Devore, indictments for forcible entry and detainer ought to be discouraged, unless there is evident force against the person in actual possession.”</p>

Ejectment for 3011^ acres of land in Huntingdon township. moved that the proceedings should be staid in this action, until the costs of a former suit brought by the lessee of Bernard Gratz against the now defendant, to July term 1783, should be paid, a non pros, having been entered therein December 1791.

<p>Where a variance appears between the declaration and distringas, court MU discharge the jury.</p>

Th-is was a special action on the case against the defendant, as a public officer. Plea non cul. with leave to give the special matters in evidence.

Ejectment for a messuage of 318 acres of land in township. Previous to the jury being sworn, Mr. Woods for the plaintiff, finding that the day of his demise was laid before the date of the warrant under which he claimed, and that the term had expired, moved the court for leave to amend the date of the demise and to enlarge the term. *5101 *The court referred him to Mr. J. Ross for his con- -* sent as the counsel for the defendant; but though he was willing that the term…

Ejectment for one messuage and 380 acres of land in Menallen township.

Ejectment for a messuage and 151^ acres of land. The declaration stated the demise on the 23d July 1790, to hold from the same day, and that the lessee by virtue of the demise aforesaid, entered therein; and that the defendant on the same day afterwards ejected him. excepted to the declaration. The nominal lessee could not enter until the 24th July, the word from being exclusive. The ouster of the lessee on the 23d was no wrong to him, because he had then no title.

Ejectment for a messuage and 337 % acres of land in Bull-skin township. The merits of this cause came on for trial the fourth time. The now defendant commenced an ejectment for the lauds in question, against Adam Hatfield in Bedford county, on which a verdict passed for the plaintiff in January term 1772, and judgment was entered thereon.

<p>If tbe payee of a note pay the balance thereof to an indorsee under a judgment against him, after the bankruptcy of the maker, and after such indorsee has procured his dividends from the assignees, by the direction of the payee, he can recover against the maker, notwithstanding his bankruptcy and certificate.</p> <p>Overruled in Austen v. Slough, 2 Yeates, 524.</p>

Replevin for 7 boxes of Havana sugar of the value of 114I. 16s. rod. Plea, property in the defendant. It appeared in evidence, that the plaintiffs contracted with one Samuel Edwards to sell and deliver to him these sugars, on the 4th August 1794. The porter was directed by the plaintiffs, to place the boxes on the pavement before Edwards’s store, and to give them notice, when he was about to remove the last parcel.

This was a case stated for the opinions of Justices Shippen and Smith, who sat at Nisi Prius, at the last May assizes for Huntingdon county. * The action was brought on a promise of indemni- r*cqp fication for money paid, laid out, and expended for the *- defendant’s use.

A RUDE had been granted to shew cause why a new trial should not be granted in this suit. The action was tried in bank at the last September term, before Shippen and Smith Justices, and a verdict passed for the plaintiff. It was brought against the defendants on an indorsement of a foreign bill of exchange by their testator.

This cause was tried at the sittings in Philadelphia, on the 29th March 1794, when a verdict was given for the plaintiff for 404I. 6s. 7d. principal, and 566I. is. 4d. interest, with six pence costs, reserving a liberty to move for a new trial. A rule to shew cause was accordingly entered at the following term, which came on to be argued, in April term last, by Mr. Lewis for the plaintiff, and by Messrs.

The plaintiff instituted a foreign attachment against the defendants to January term 1794, and obtained judgment in September term… Held: that the United States’ courts might proceed in all such cases, unless suit had been brought before the consul, or unless he would claim jurisdiction. His expressions were, ‘1 if the French consul will certify that the “parties are French citizens, and that he will act as a judge “between them, we will not assume the jurisdiction.

Ejectments for lands in. the county of Philadelphia, with notices to appear at the last September term. On the 1st December 1794, the tenants appeared, entered their pleas of not guilty, and into the common rule.

Sue. rule to shew cause why a judgment entered up and execution issued thereon, should not be set aside.

This cause came before the court on a bill of exceptions, agreed' by counsel to be sealed by M’Kean C. J., on a trial had before him and Justice Yeates, at West Chester, on the 28th April 1794, when a verdict was found for Spear, the then plaintiff. The action was brought in debt, for 939I. 8s. rod., on a bond, dated 29th November 1784, conditioned for the payment of 469I. 14s. 5d. on the 29th April 1785.

Debt on bond. Plea payment. It was admitted, that there was a balance due to the plaintiff, and the only question was, whether the jury could legally reduce a partial payment made on the bond, of 150I., on the 16th September 1778. The court desired the counsel for the plaintiff to begin.

Debt on obligation, conditioned for the payment of 500I. on the 27th May 1795. Plea payment, with leave to give the special matter in evidence.

<p>Large damages given in an action for obstructing a water course, to compel the defendant to do justice.</p> <p>Lis pendens is a sufficient notice to a purchaser.</p>

<p>Release to a baron and feme, to enable her to give testimony in the absence of the baron, is good.</p>

'The plaintiff declared on two counts. 1st, Indebitatus as~ stimpsit for 500I. for the use and occupation of one furnace, &c. in East District township. 2d, on a qiiantum valebant.

Ejectment for 100 acres of land in White Deer township. The case on the evidence appeared to be' this: On the 3d April 1769, Michael Wheeland, the father of the lessor of the plaintiff, entered in the land office a precise application for the lands in question, which was successful.

<p>A lapse of eighteen years and a half is not sufficient to found a presumption of payment of a bond, and circumstances may repel that presumption.</p> <p>The declaration of a mere stranger that a bond was paid, shall not be received in evidence.</p>

<p>Where the injury is immediate, trespass vi and armis lies. But where it is consequential or collateral, case lies.</p>