Volume 2 — Sergeant & Rawle's Pennsylvania Reports

In Error. ERROR to the Common Pleas of Westmoreland county. Day, the plaintiff below, brought an action on the case; and filed a count in indebitatus assumpsit, for money had and received. On the trial it appeared, that in December, 1810, the plaintiff gave the defendant a mare and twenty-five dollars in exchange for a horse. The defendant sold the mare for a tract of unseated land and twenty-five dollars.

<p>In Error.</p> <p>ERROR to the Common Pleas of Westmoreland county.</p> <p>. The plaintiffs, Jesse Huckle and Jane his wife the daughter of Joseph Brownlee deceased, brought this ejectment to recover land that had belonged to the estate of Brownlee, The defendant claimed under sales made by order of the Orphan’s Court of Westmoreland county in 1785, 1786, and 1787- On the trial of the cause the defendant offered evidence of such sales having been made at the instance of John Guthrie deceased, as administrator of Brownlee. The defendant did not produce any letters of administration to Guthrie, but offered to prove that Brownlee was killed by the Indians in July, 1782: that the present register of Westmoreland comity had searched in his office and that there was no record of the letters of administration, nor could any administration bond be found: that the former register was somewhat addicted to intemperance, kept his office in different places, and did not take due care of the papers belonging to it: that on inspection of the books of the office the entries did not appear to be made, in some instances, at proper ¡ ' 1 times ; and that by the omission of the fornyer ¡register and his clerks, the entries appeared to have been made in a great many cases long after administration had been granted. The defendant further offered to prove, by a witness, that an ad'-ministration bond >vas drafted, and, as the witness firmly believed, executed by the witness as one of the securities: that the country was just emerging from war: that by a copy of a list of debts and affidavits taken before the former register, in 1784, it appeared that he recognised Guthrie as administrator ; and also allowed as charges against the estate, certain fees to himself amounting to more than the charges of stating the account: that no loss had accrued from the want of an administration bond, the balance due to the plaintiff on a final settlement haying been paid over to her guardian by Guthrie as administrator. This and so.me other testimony of the same kind was offered to -induce a presumption that letters . j j pf administration had'beep duly issued to Guthrie, and a bond taken which had beep since lost. The whole of tjijs evidence was objected to by the plaintiff, but admitted by the court, who sealed a bill of exceptions.</p> <p>It appeared in eyidence that the first sale of a portion of the land took place on the petition of Guthrie, as administrator, dated in February, 1785. There was no inventory or appraisement proved; but a list of debts against the estate so far as they had come to the knowledge of the administrator, with the amount of the goods, See. which had come into his possession arising from a vendue, was affixed to the petition and exhibited to the court, leaving 3 balance against the estate, which was sworn to by the administrator, and examined by the register, and passed by the court in 1794, after a guardian to Jane Brownlee had been appointed.</p> <p>The proceeds of this sale still left a balance due by the estate. A second sale of another portion of the land took place in 1786, which extinguished that balance.</p> <p>A third sale was had .on the 7th February, 1787, pf the residue of the land, containing 75 acres. The petition of the administrator contained no list of debts, but referred to the former proceedings, and stated generally the insufficiency of tfie estate to discharge the just debts and educate the child. The. administrator made a return of these sales and a final settlement of his administration account, by which settlement itappeared that there were debts due by the estate and unpaid at the date of the last order of sale: and it was prbvpd that among Other loose papers in a trunk in the register’s office were found, six or seven months prior to the trial, certain vouchers dated in 1784, 1785, 1786, 1787, for the paymept of the debts of Brownlee by Guthrie. There was no appearance of fraud: and the lands sold for their full value.</p> <p>The president pf the court below charged the jury that the documents on which the first sale was founded, though not in the terms of the act of 1764, sect. 7. were of equal force and effect, and that the first and second sales were authorised by law. That the third sale could not be supported on the principle pf outstanding debts. The administrator, if he knew of debts, should have exhibited a statement of them on oath or affirmation instead of making a general affidavit to the contents of his petition. If the sale could be supported it ppwdd pnly be on the ground of want of fund’s for the ner cessary support and education of the child. Under these circumstances it was left to the jury to say, whether there was or was not a sufficient ground for the exercise of the equitable jurisdiction of the court in ordering the third sale.. To this opinion the plaintiff excepted: and the court sealed a bill of exceptions.</p> <p>The following errors were assigned in this court.</p> <p>1. That parol evidence of the sales was allowed without,, proof that letters of administration had ever been granted.</p> <p>2. That a sale was ordered before the administrator had settled his administration account.</p> <p>3. That the sales were not authorised by law, it not appearing at the time that there were debts unpaid.</p>

In.Error. ERROR tp the Common Pleas of Crawford county. Foúst brought an action óf covenant against S. B. Foster .and A. W. Foster for the recovery of damages in consequence of the lien of. a third person, on two tracts of land sold by the Fosters to Foust. Articles of agreement between the plaintiff and defendant were made for the sale of these lands on the 28th September, 1803.

In Error. ERROR to the Common Pleas of Westmoreland county. Brown, the plaintiff below, brought an action of trespass against Biggs and others, for breaking and entering his close, and cutting and carrying away his corn there growing, fkc. On the trial the case was as follows : . Plumstead and Bernard Gratz were the owners of the land on which the alleged trespass was committed.

In Error. ERROR to the Common Pleas of Westmoreland county, , in a homine replegiando brought by Negro Peggy, the plaintiff below, against Marchand. A case was stated for the opinion of the court below, who gave judgment for the plaintiff.

In Error. ERROR to the Common Pleas of Westmoreland county, To reverse the proceedings on an execution. Morrison, the plaintiff below, obtained judgment against Pearson, Pleacher, and Kerns. Held: and the land condemned and sold to Joseph Weigly, esq. (who was attorney for plaintiff,) on St venditioni exponas returnable to September, 1807.

<p>In Error.</p> <p>ERROR to the Common Pleas of Allegheny county, in which a bill' of exceptions was taken to the charge of the: Court, and also to the admission of parol evidence to prove the contents of the writing which was the cause of action.</p> <p>It was a suit for a libel made and published by Gray, the defendant, against Pentland, who was the prothonotary of the Court of Common Pleas of Allegheny county. The defendant made a deposition before a justice of the peace, charging the plaintiff with several offences in the transaction of his official business, and concluding with an allegation that “ from “ frequent intoxication he was unfit to perform the duties of “ his office with dignity and propriety.” This deposition was sent by the defendant to the Governor of the commonwealth. On the trial in the Court below, the defendant’s Counsel requested the Court to charge the jury, “ that if it “ was made, and sent for the purpose of an investigation of «the plaintiff’s official conduct and his fitness for office, it “ was not actionable.” The Court would not go to the extent required, but gave in charge, “ that if the deposition “ originated in malice, and was destitute of probable cause, “ the action was maintainable.” To this charge the defendant excepted. ‘</p> <p>A subpoena had issued from the Court below, and had been served, directed to the Governor and Secretary of the commonwealth, with a duces tecum for the deposition: and árale was entered for the purpose of taking their depositions in Harrisburg. But they declined appearing, either under the' rule or the subpoena. They also declined delivering to the plaintiff the deposition made by the defendant. A motion was afterwards made by the plaintiff for a special subpoena duces tecum to be directed to the governor and secretary to compel the production of the deposition, but this was refused by the Court. The defendant was requested to give up the deposition, or to permit the governor to do so; but he did not consent. On the trial the plaintiff offered parol eyidence to prove its contents, to which the defendant objected. The ’Court, however, admitted it, and an exception was taken.</p> <p>A verdict was given for the plaintiff for five hundred dollars damages.</p> <p>This case was argued at September Term, 1814.</p> <p>T. It is not actionable to make a deposition for the purpose of investigating the conduct of an officer removeable at the pleasure of the Governor. He is the regular authority to hear and decide on the conduct of officers who hold at his will. And resembles in this respect a court of competent jurisdiction. It has always been considered that charges made in the regular course of judicial proceedings are not actionable. To charge one with felony in a petition to the Star Chamber is actionable, because that court has not jurisdiction. Buckley v. Wood.(a) 6 Bac. Ab. 225, 6. Slander, 4. It was held to be no libel to publish false and scandalous things of another in a petition to the committee of grievances of the House of Commons, who had jurisdiction of the matter, and to deliver printed copies to the members of the committee according to the usage of parliament. Lake v. King.(b) In Thom v. Blanchard,(c) it was decided, that no action lay for a petition to a .person who had authority to remove an officer, although false charges were stated, unless express malice was proved.</p> <p>2. The deposition ought to have been produced. It was not in the power of the defendant, but in the hands of the Governor. It does not follow, that parol evidence was admissible, because no attachment could issue against the Governor. A continuance of the cause might have been had. The rule is peremptory, that the best evidence shall be produced, which the nature of the case admits of: except when a paper is in the possession of an adverse party who will not produce it. 2 Esp. Ni. Pri. 506.</p> <p>The substance of the Court’s opinion was, that where the charge originated in malice without probable cause, action lies. The defendant contends, that the motive is not to be inquired into. But we say, that if it originated in malice it is actionable. An attorney, party, or witness, is ' liable to an action, if he malignantly wander from the point for the purpose of slander. 5 Esp. Rep. 108. Barbauld v. Hookham, (note by editor). It is no libel if the proceeding is in the regular course of justice : but if commenced with malicious nature, with design not to go through with it, but to expose one’s character under shew of law, it is subject to indictment or action. 1 Hawk. book I. ch. 73, sect. 8. The case of Thom v. Blanchard,(a) is not contradictory to my argument. There the defendant proved no more than the exhibition of a petition to the council of appointment, which the Chief Justice held to be sufficient to support the action. He also cited M'Millan v. Birch.</p> <p>2. Parol evidence of the deposition was lawful. The plaintiff made oath, that he believed the deposition was in the hands of governor Snyder or secretary Boileau, and a subpoena duces tecum-was taken out and served. There was also a rule to take depositions. But they refused to give their depositions. The Court of Common Pleas considered it as a case in which an attachment would not lie against the Governor, because it was no contempt to refuse to attend, being subject to higher duties, which kept him at the seat of government. The defendant refused his assent to giving up the deposition, and was himself the cause why it was not produced. The court at their discretion might refuse an attachment. Their decision is not the subject of a writ of error.</p>

In Error. William Milford, the plaintiff below, obtained a judgment in the Court of Common Pleas of Westmoreland county, against Thomas Miller, the defendant, for three hundred dollars and costs, “ to be released on the defendant’s giving “ to the plaintiff a sufficient release of the warrant of Charles “ Campbell, for the land purchased of the defendant by the “ plaintiff.” This judgment was entered at December Term, 1803.

In Error. Sarah Boyles was tried in the Court of Oyer and Terminer of Indiana county, on an indictment containing two counts. The first charged her with the murder of her bastard child. The second, with endeavouring to conceal the death of the child. On the first count the jury acquitted her.

In Error. THIS was a writ of error to the Common Pleas of Westmoreland county, in an ejectment brought by M‘Ferran and others, the plaintiffs below, against Powers and others. The decision of the Court upon a former writ of error in this cause will be found in the 1st volume,'p. 102. The facts of the case, and the points arising upon them, appear in the opinion of the Court.

In Error. THIS was a writ of error to the Common Pleas of Westmoreland county, in an ejectment brought by Thompson and others, the plaintiffs below, against Smith, to May Term, 1813, for 67 acres and 66 perches ofdand'in that county.

<p>In Error.</p> <p>THIS was a writ of error to the Common Pleas of Allegheny county, returned with a bill of exceptions. ,</p> <p>It was an ejectment to August Term, 1809. On the trial] the plaintiff produced no other evidence than alease, dated 19th \ October, 1788, by which he had rented the land in dispute to : the defendant for the term of four years, rendering the annual ] rent of a turkey, on the 23d December, in each year, if re- ¡ quired. The defendant covenanted to clear four acres of land each year, and inclose the same with a fence, and to pay; all taxes during the term. The defendant produced no evidence. The president of the Court of Common Pleas gave in charge to the jury, that the plaintiff, not having given notice to the defendant to quit the premises previous to the commencement of the suit, was not entitled to recover. To this charge the plaintiff excepted.</p> <p>The only question is, whether the landlord can recover without a previous notice to quit. We admit, that notice is necessary on a lease from year to year, or on a lease at will: but not on a lease to end at a time certain. Woodfall's land, and ten. 218. 228. Runn. on Ej. 21, 22. A tenant holding over after notice to quit is a trespasser. Boggs v. Black.(a) This is a lease for four years : and there is no evidence of any renewal, or payment of rent, or taxes, or any improvement since the lease expired: some of which it was incumbent on the defendant to shew, to entitle him to notice. As to the presumption from length of time, this should have been left to the jury. They cited Jackson v. Rogers.(b)</p> <p>admitted, that the landlord was not obliged to give notice to quit at the end of four years, to entitle him to recover in ejectment. But having suffered the tenant to remain over so long, it became an implied lease at will, and the tenant could not be turned off without notice. Woodfall's land, and ten. 218. 220. It would be a great hardship if he could, after being suffered to remain seventeen years. The tenant, under the circumstances of this case, would not' be admitted to plead the statute pf limitations and set up an adverse possession.</p>

<p>In Error.</p> <p>ERROR to the Common Pleas of Bedford county.</p> <p>Ejectment by John Woods and another surviving executors of David Espy deceased. On the trial of the cause it appeared, that a warrant issued for the premises in favour -of James Piper, dated August 1st, 1774, and a survey was made thereon on the 14th June, 1793. The plaintiffs claimed under a judgment obtained by Paul Zantzinger against Lucinda Piper administratrix of James Piper, and a fieri facias and venditioni and sale thereupon of the land in dispute, in the year 1789, to David Espy. After proving these proceedings, they offered in evidence a sheriff’s deed to David Espy, dated 17th April, 1790, attested by two witnesses. This deed was executed by Arthur M'-Gaughey as sheriff; acknowledged by Isaac Bonnet sheriff, on the 25th April, 1797; and recorded in the office for recording deeds for Bedford county. On the 30th June, 1797, an objection being made by the defendants t0 deed being received in evidence, the plaintiffs examined a witness, who swore that it appeared evident that the name of M'-Gaughey and the date had been erased, and Isaac Bonnet and another date substituted. They then offered the deed in evidence : but it was objected to by the defendant, and overruled by the Court, who sealed a bill of exceptions.</p> <p>The plaintiffs proved, that the executors of David Espy had given a lease of the land in September, 1797, to a tenant, who took possession, and lived there several years. After-wards the defendants got possession, but in what manner did not appear.*</p> <p>The Court below, among other things, charged the jury, that the plaintiff could not recover without a deed. That it had been contended, by the plaintiff, that the warrant being unsurveyed at the time of the levy and sale, it was a mere chattel, and that the title would pass without deed. But a warrant calling specifically for a tract of land, cannot be sold as a chattel, and can only be sold by a ft. fa., levy, condemnation, and venditioni exponas.</p> <p>The plaintiffs excepted to the charge of the Court, and the Court sealed a bill of exceptions. A verdict and judgment were given for the defendants in the Court below.</p>

DUNCAN, the plaintiff below, had obtained judgment in 1809, in this suit, in the Common Pleas of Franklin county: upon which, in January, 1810, he hád issued a ji. fa. Certain real estate of the defendants was levied on and condemned, and sold by the sheriff in April, 1810, under a venditioni. The sheriff’s deed was acknowledged in the same month, and the money paid over to the plaintiff, Duncan.

<p>In Error.</p> <p>ERROR to the Common Pleas of Franklin county.</p> <p>Josiah Price, the defendant in error and plaintiff below, who was husband and administrator of Sarah Price deceased, brought this action against John Scott, the surviving executor of William Scott, to recover a legacy bequeathed to her by the will of her father, William Scott. The will contained bequests of the testator’s real and personal estate to his two sons jointly, subject to the payment of debts and legacies: and after giving to his daughter Jane, some personal property, bequeathed to her “ five hundred pounds specie to be “ Pa^ ’n manner following, viz. one hundred pounds three ^ years after the date hereof, arid one hundred pounds every succeeding year until the said sum of five hundred pounds a ^ paJd. Likewise, I will and bequeath unto my daughter, “Sarah Scott, her heirs and assigns, my negro girl named “ Hannah, and the one-third part of my household furniture, il a horse and saddle of the value of thirty pounds, as also five u hundred and fifty pounds specie, to be paid to her in yearly “payments, viz. one hundred pounds yearly, after she arrives at the age of eighteen years, until the said five hundred and “fifty pounds be paid.” A subsequent part of the will contains the following clause. “ It is further my -will, that if it u should please God that any or either of my before-mentioned “ sons or daughters should die, before he, she, or they attain <c the age of twenty-one years, unmarried or without lawful “ issue, that then, or in either case, the bequest or bequests H herein before made to any or either of them, shall devolve to u the survivors or survivor, to be divided share and share “ alike, and in case it should happen, that my said sons and 11 daughters should all so die under age and without lawful “ issue, that then and in such case my whole estate real, be-<lJore divided shall descend to my brother James Scott’s son, “ Alexander</p> <p>Sarah Scott was about nine years old when the testator died. After she had arrived at the age of twenty-one years, she married the plaintiff, Price, and died in about nine months after.</p> <p>A case was made in the Court below for their opinion, and they directed judgment to be entered for the plaintiff, Price.</p> <p>contended, that by the death of Sarah Price the legatee without issue, one of the three contingencies on which the limitation over was to take effect had happened. Those contingencies were, 1. her dying before 21,2. her dying unmarried, or, 3. her dying without issue: in either of these cases the bequest was to devolve on the survivors. The words in the will “ then w or either case,” are the construction put by the testator on his own words : and do not relate to the death of a son or daughter, but to the three contingencies before-mentioned. These words make this will different from all other cases already decided, and shew that the testator meant the contingencies to be construed disjunctively. It has been objected, that the limitation over in such case being of personal property, and after an indefinite failure of issue, is void. It is good, however, as an executory devise, which, it is settled, may be of personal property and of money as well as of real estate. 1 Fearne Cont. Rem. (5th edit.) 26. 30. 2 Fearne Cont. Rem. 1. 33. 35. 49. 227. 239. Nor is the contingency too remote: for a limitation over to a survivor or survivors, restrains the dying without issue to the death of the first taker. Nichols v. Skinner.(a) Keating v. Reynolds.(b) Executors of Maffet v. Strong.(c) So where the devise was “ in case she should “ die without issue, then, &c.,” the word then restrains it in the same way. Pinbury v. Elkin.(d) There are many other cases of the same kind, from which it is evident, that Courts have leaned as much as possible in favour of a construction, that preserves the devise over. They cited 2 Vern. 337. 3 Burr. 1634. Sheffield v. Lord Orrery.(e) Maddox v. Staines.(f) Sheppard v. Lessingham.(g) 1 P. Wms. 664. 3 Mass. Rep. 3.</p> <p>It never could have been the intention of the testator to disinherit a daughter who should marry and have issue and die under 21: as would be the case by the construction contended for by the counsel for the plaintiff in error. This will may be construed so as to contain, 1st. three contingencies; dying before 21 — dying unmarried — dying without issue. 2d. One contingency; dying before 21, unmarried and without issue. 3d. Two contingencies; dying before 21 unmarried — dying before 21, without issue. Either of the two last we contend to be the correct construction. It could not be contended, after the decision in Holmes v. Holmes,(h) that the first construction is correct, unless on account of the words, “ then or in either casef but these words make no material difference. They refer to the death of any of his sons or daughters, if the second construction is adopted: or or they-may refer to the two contingencies included in the third construction. If there could be a doubt on the words of the devise to Sarah, it. would be removed- by the subse<2uent Revise over the whole estate to his nephew Alexander, viz. if all his sons and daughters should all so die under age an¿ xoithout issue. Money cannot be given subject to a limitation over. Nor will chancery order the-first taker to give security except where the testator has ordered it. The legatee-here had a right to receive 1001. at the age of 18, and then 100/. from year to year: and having received it, it could not be recovered back. They cited Read v. Snell.(a) Frameingham v. Brand.(b) Walsh v. Peterson.(c) Flanders v. Clark.(d) Garth v. Baldwin.(e)</p>

<p>In Error.</p> <p>THIS was a writ of error to the Common Pleas of Bed-ford county, in an action of ejectment, in which the verdict and judgment, in the Court below, were in favour of the de-, i fendant.</p>

In Error. ERROR to the Common Pleas of Huntingdon county. The defendant in error, plaintiff below, bropght an action on the case against Dean. The declaration contained four counts.

In Error. ERROR to the Court of Common Pleas of Franklin county in an ejectment. The plaintiff below, Hamilton, claimed under a warrant, dated ,24th August, 1785, and a survey under the said warrant, made in the year 1785, and returned into the Surveyor General’s office, 14th April, 1786.

In Error. ERROR to the Common Pleas of Cumberland county. ' Blaine, the plaintiff below, brought an action of trespass vi * el armis against Hutton for taking and carrying away his l goods, &c. The defendant, justified as a constable, under a* warrant directed to him- by Captain John Underwood, presi- f dent of a regimental court martial of militia.

<p>1 A plaintiff in the suit is not a competent witness to prove the execution of a deed to which he was a party with‘other persons. No person can be admitted to prove a deed until it appear that the subscribing witnesses are dead, or not to "be had.</p> <p>Where a deed is executed by three attornies in fact, the acknowledgment should he by all the attornies, as the act of their principal, not as their own.</p> <p>The^probate of a deed before the recorder of the city of Philadelphia, made on the 16th May, 1803, tor lands in Huntingdon county, held void.</p> <p>A deed cannot be given in evidence until some interest, $ilheR inlaw or equity, is shewn to exist in the grantor.</p>

In Error. THIS was a writ of error to the Common Pleas of , Huntingdon county, in an ejectment brought to August Term, 1802. The case embraced a great variety of testimony, and a number of points of law: but so far as they are material they appear in the opinion of this Court.

THE following indictment was found in the Mayor’s Court of the city of Philadelphia, and removed to this Court by certiorari. “ March Sessions, 1815. “ City of Philadelphia, ss. « The Grand Inquest… Held: that part of the indictment which related to frequenting a bawdy house, void.

ACTION of debt in the name of the Commonwealth, on an administration bond, against Anthony La Fitte, administrator of Peter La Fitte, and Aimé Brandt and Anthony Terradell, his sureties. It was submitted to arbitrators agreeably to the act of 20th March, 1810,(a) who on the 21st July, 1815, awarded against the defendants 6000 dollars, the penalty of the bond.

THIS was a scire facias founded upon the judgment obtained by the Commonwealth in the next preceding case, hfought by Teresa La Fitte against the same defendants, for Fer distributive share of the estate of Peter La Fitte, A compulsory rule for arbitration was entered by the plaintiff under the law referred to above, and on the 12th September, 1815, an award was -filed in her favour for 715 dollars 15 cents. Within • twenty days an appeal was entered.

THE case stated for the opinion of the Court, was in substance as follows : / The suit was brought against Jacob Belsterling, Michael ' Wartman, and Abraham Carlisle, for a trespass in entering the close of the plaintiff, and seizing his goods for the nonpayment of taxes for the years 1810, 1811, and 1812, under the 7th ánd 8th sections of the act of assembly of the 29th ' March, 1803, entitled, “ an act for the consolidation and “ ámendment of the laws as far as they…

moved to set aside an award of arbitrators, which had been filed in this cause, on the ground that one of them had prejudged the case. 1 The suit was instituted against three defendants, viz. Allison, Allen, and Badger. Allison and Allen, only, were summoned, and appeared; the return as to Badger being nil habet. A compulsory rule for arbitration was entered by the defendants, and on the 22d February, 1815, the parties met.

<p>The act to incorporate the Farmers’ and Mechanics’ Bank of Philadelphia, does not entitle a note discounted by that bank, to he plaeed on the footing-Of a specialty, with respect • So the order in which debts due from deceased persons are to be paid by their executors.</p>

<p>THIS was an action on a policy of insurance, underwritten by the defendants, on the brig Rolla, at and from New Tork to Monte Video. The vessel was warranted to be an ..American bottom, of which proof was to be required here only. The declaration averred a loss by capture.</p> <p>On the trial of the cause before Mr. Justice Yeates, at a Court of Nisi Prius, held in November, 1815, the pláintiff, who was admitted to be a citizen of the United States, to prove his property, gave in evidence the register of the Rolla, but exhibited no other document in support of her neutral character. The defence rested upon two grounds. First. That the plaintiff had not complied with his warranty of neutrality, by furnishing the vessel with such documents as were necessary to constitute her a neutral bottom. Second. That she had forfeited her neutrality by a breach of blockade.</p> <p>The last point involved a great mass of contradictory evidence, which it is not necessary fully to detail. So far as it is material to an understanding of the opinions of the Judges, it was as follows:</p> <p>Sir Home Popham, having accomplished the objects for " which he had been sent by the British government, with a naval force to the Cape of Good Hope, formed a plan for attacking the Spanish settlements in South America. In prosecution of this enterprise, an enterprise unauthorised by his government, he withdrew a considerable part of his force from the Cape, and arrived in the month of June, 1806, oS Monte Video. He immediately instituted a blockade of that place, although no notification of it was given until sometime afterwards. On the 23d of the following September, notice of the blockade was sent into Monte Video, with a request to the Spanish governor to make it known to neutral vessels. Although the blockade was intended by the British commander to commence in June, it did not appear to have been kept up with uniformity and rigour; several vessels having been permitted to pass into and out of the port. The Rolla arrived off Monte Video on the 5th September, 1806, and passed the English shipping, which was lying seven or eight miles from the town, in a fog. When the fog cleared away, she was pursued and fired upon by the boats of the. squadron, but got safely in; some Spanish gun-boats coming out to her protection, and forcing her pursuers to retire. On the 19th November the Rolla, with her return .cargo, sailed from Monte Video. On the following day she was captured by the Medusa frigate, and sent to England, where she was condemned for a breach of blockade. Sir Home Popham returned to England in the Rolla, and on his arrival, was arrested, tried, and censured for drawing off the British forces from the Cape of Good Hope, for the purpose of assailing the Spanish possessions in America. Admiral Sterling, however, by whom he was succeeded, continued Sir Home's hostile operations, and the British government adopted and recognised his acts, by sending out reinforcements, for the security and extension of the conquests he had begun.</p> <p>Whether Sir Home Popham, without authority from his government, had power to impose a blockade of Monte Video; whether, in fact, a blockade was imposed and kept tip with due uniformity and sufficient force, and if so, whether the Rolla had received due notice of its existence, were questions litigated at great length at the trial, and upon which much irreconcileable testimony was given. Among other evidence exhibited by the plaintiff, the deposition of Captain Coffin, the master of the Rolla, was offered to prove, among other things, that he had not been guilty of a breach of blockade. Jt was objected to by the defendant’s counsel, but admitted by Judges Yeates, who having previously overruled a motion for a nonsuit, made upon the ground, that the vessel did not appear to have been properly documented, charged the jury to the following effect.</p> <p>Yeates J. The defendants resist the plaintiff’s claim on the ground of an alleged breach, of warranty, that the brig Rolla was American property, which,, in itself, implies, that she was neutral property, and, of course, should be documented and conducted as such.</p> <p>If it is proved to the satisfaction of the jury, that the plaintiff has failed in either of these particulars, he must fail in this suit.</p> <p>The question has been elaborately argued before the Court, that the plaintiff was bound to shew to this jury, that the Rolla was duly documented on the voyage. I expressed my opinion^ on the motion for a nonsuit, that I did not feel myself authorised to award it under the circumstances of the case, which might justify the jury in drawing conclusions as to the proper documents being on board, when she sailed from New York, which were afterwards deposited in the Court of Admiralty in London, over which the plaintiff had no controul. It had much weight with me, that in the many t-rials we have had and read on breaches of neutrality in insurance cases, the want of the proper documents had always been shewn on the part of the underwriters. I would not be misunderstood. If the jury are satisfied, that such papers were not on board as were necessary by the law of nations, or by particular treaties with the belligerent powers, the plaintiff has no right to a verdict. It is a fair presumption, that the insured will carry papers necessary for their own protection. Presumptions only stand until the contrary be proved. She could not have cleared out at the custom house without the proper documents. It is of no moment, that the want of these papers did not conduce to the loss; the assured must comply with his warranty, literally and fully. Whether the register does not shew she was American property, and supersede the necessity of a passport; that a clearance could only be obtained from the custom house upon the outward manifest of the cargo; the port of destination and the role d1 equipage being made known, are mattei-s which may be safely trusted to a jury of merchants, who are to judge dispassionately on their oaths.</p> <p>If the first question is determined in favour of the plaintiff, the next inquiry will be, has the brig been conducted as neutral property should be ? This is, most chiefly, a question of fact, but the law should be well understood before the fact can be well ascertained.</p> <p>The right of imposing blockades is an incident of war. It grows out of the state of hostilities between contending nations, and is founded on the principle, that neutrals shall not be permitted to assist an enemy in such places as are invested with actual force. The rights consequent on a blockade are truly said to be a hard measure in their operation against neutrals, and ought not to be extended by construction. The class of men whose duties lead them to enforce blockades, too frequently pay little regard to individual rights, and the United States, in particular, have often smarted under their rapacity. We must, however, take the world as we find it; and courts of justice must be governed by the settled law of nations as adopted by the civilised nations of Europe; or ‘trade in general must run into confusion.</p> <p>Three things are necessary to constitute a valid blockade. 1st. There must be a competent authority to impose it. 2dly. It must be imposed in fact. 3dly. It must be maintained in such a manner as to lay upon the parties an obligation of attending to it with a sufficient blockading force. On the first ingredient I concur with Sir William Scott, that there is a plain distinction between a blockade on stations in Europe, and distant parts of the world, and that in such distant parts a commander must be held to carry with him a sufficient authority to act against the enemy. However irregularly Commodore Sir Home Popham may have acted towards his own government, in withdrawing his whole naval force from the Cape oj Good Hope, without orders, the individual subjects or citizens of other countries cannot dispute the validity of the blockade on that account. If the testimony is credited, Admiral Stirling, when he superseded Popham, sanctioned on the spot what he had done in this particular; and so far from the British government disavowing the blockade, it is incontestibly shewn, that the Rolla was condemned as a prize, in the Court of Admiralty in London, for a hreach of blockade.</p> <p>A blockade, in order to,affect neutrals, must be communicated in a credible manner: this is frequently done by a communication to the minister of the neutral powers, of which their citizens or subjects are bound to take notice, after the lapse of a reasonable time. But a blockade may commence by an actual force on the spot, preventing vessels from going into or coming out of the port blockaded. The object of the blockade is to prevent neutrals from aiding the enemy, by carrying on trade with them. When the commerce is thus forcibly suspended, the warlike measure becomes notorious. It is seen and sensibly felt, and particularly by those within the port blockaded. What can personal individual notice do more?</p> <p>If it appears that ships not privileged by the law of nations have been allowed to enter or come out of the blockaded port, other parties may be justified in presuming, that the blockade has heen taken off. But I think it incumbent on the party who asserts the raising of the blockade, to shew such cases with all their attendant circumstances. For the privilege of entering extends to neutral vessels under licenses from the government of the blockading power, or where their cargoes have been purchased and really delivered either on board or in lighters, previously to notice of the blockade; or where they came out in ballast; or where they are in reál distress, for the mere purpose of relief. For these are the undoubted rights of neutrals.</p> <p>This is a short and imperfect summary of the general rules as to blockades. But the jury will be called upon to decide facts upon conflicting testimony, and therefore I will mention the legal principles in weighing testimony. Where Witnesses are of equal character, and swear differently, the greater number should preponderate: their credibility greatly depends on their indifference to the matter in dispute: one affirmative witness countervails many in the negative, for one witness may see or hear what another has not seen or heard, and both may have sworn truly. The probability or improbability of a story told by a witness will always have a great effect on intelligent minds in the pursuit of truth: the jury will endeavour to reconcile the testimony when it can be done. When it cannot be so done, they will judge for themselves, on a cautious, dispassionate consideration of all the circumstances., It is their peculiar province to try the credit of witnesses.</p> <p>It is not my intention, if my state of health would even admit of it, to go into the minutia of the evidence. But I hold it my bounden duty, to give the jury what assistance I can, in order to enable them to form a correct verdict. I have no other wish than, that equal impartial justice should be done.</p> <p>The jury will determine on the probability of Monte Video being blockaded, on considering that the British squadron had the command of the river Plata, and the different attempts made by their forces by land against the Spanish territory. They will consider, that six witnesses, Wells, Wiles, Waldo, Hickson, Paterkin, and Webb, unbiassed as far as we know, have sworn affirmatively to the blockade, and that, according to Webb, Captain Coffin told him he knew of it, but made a run of it, and escaped the squadron in the night. They will contrast their testimony with that of Coffin and Waddel, who come forward to justify their own conduct, and advance the interests of their employers, and determine to whom superior credit is due, taking also into view the testimony of German and Banbury.</p> <p>They will carefully examine the testimony of Coffin, whether he does not deny the blockade, because he had no personal notice of it, and other ships were allowed to come in and go out. Why was.he chased, and escapfed by means of the Spanish gun-boats, if no blockade ? Why does he speak of the blockade not being renewed after the British took Maldonado, if no blockade ever was imposed ?</p> <p>The jury will ask themselves, if Captain Bunbury has not substituted opinion for fact, in turning over the leaves of Vat-tel and Beawe's Lex Mercatoria, thereby inducing him to believe himself an adept in the law of nations ! But why was his vessel, the Mary, detained in port four or five months, if she could safely have come out of port ? Bunbury also' took the ground that no personal notice was given to him.</p> <p>If the jury should be satisfied, in a calm and attentive review of all the circumstances, that misconduct prejudicial to the insurers is not fairly imputable to Captain Coffin, and that, giving the fullest credit to his whole relation, hiá duties as a master did not imperiously call on him to make further inquiry as to the rumour of the supposed blockade, their task is over, and they ought to find for the plaintiff without hesitatton. But if their minds should be led to a different result, they will then inquire, whether such conduct has not been pursued by the commander of the British squadron as neutrals might avail themselves of, and conclude, that the blockade was raised. I have already detailed the exceptions from the general obligations of blockades in favour of neutrals, by the law or comity of nations, and have said, that the party who defends himself on the ground of the blockade being-taken off, ought to shew in evidence the cases on' which he relies as his justification. They lie within the knowledge of the captain and supercargo of the Rolla, who are the plaintiff’s agents.</p> <p>The jury, therefore, will be led to inquire, whether the vessels which were permitted to come out of port fall within the exceptions which have been stated. They will determine, on the whole proofs, whether all the vessels which have thus come out have not been stopped by the blockading squadron, until their particular circumstances had been fully examined into. The verdict should correspond with the fact as ascertained on these points. I hold the doctrine of blockade extends to vessels coming out of port; I can have no conception, that such evils are inflicted on neutrals merely to distress them, but that the hardships they are subjected to, necessarily spring from a desire to affect the trade and finances óf a belligerent enemy. If my charge in any material part is incorrect in point of maritime law, it will be subject to the correction of all the Judges of this Court. The want of rigour in the blockade seems to me the strongest ground on which the piaintiff’s claim must ultimately rest.</p> <p>I have thus endeavoured to bring the prominent features of this case before the jury, to enable them to form a correct decision. I have not concealed the inclination of my own mind on the whole evidence; but it rests with the jury to say for themselves, what effect the proofs have on their consciences and judgments. They will judge with impartiality, and' decide with firmness, remembering, that the fair and equal ádministration of the law is the best security for every individual and society in general.</p> <p>As to interest, if the jury shall think fit to find for the plaintiff, it seems that the loss is stipulated to be paid in thirty days after the exhibition of the preliminary proofs, unless there are particular circumstances, which exempt the case.from the operation of the general rule. The jury will judge, whether such circumstances exist in this case.</p> <p>The jury found for the plaintiff, and the cause now came before the Court, on d motion by the defendants for a new trial, for which three reasons were assigned. First. That the deposition of Captain Coffin was improperly admitted in evidence. Second. That the plaintiff had not complied with his warranty of neutrality, by furnishing the Rolla with the necessary neutral documents. Third. That the verdict was against evidence, against law, and against the charge of the Court.</p> <p>The argument, which was conducted by Ewing, for the plaintiff, and by Binney and Rawle, for the defendants, took a very wide range, embracing a view of all the evidence given at the trial. It is unnecessary here to pursue the topics urged by the counsel, further than they are connected with the points decided.</p> <p> Arguments in support of the motion for a new trial. </p> <p>1. Nothing can be more clear than that the Captain had such an interest, as disqualified him from becoming a witness. He had received no release from his owners, to whom he was responsible for his conduct. The effect of his testimony, therefore, was to justify himself, and to protect himself against a future suit. The question was, whether or not he had broken the blockade of Monte Video; a question, in the determination of which he had a deep and immediate interest, because, if the plaintiff recovered against the underwriters, he would be no longer liable to an action by the owners. The verdict in this cause would be evidence for him in such a suit. On the other hand, the underwriters could maintain no action against the Captain, because the contract of insurance created no privity between them. The only authority to be found in support of such a position, is an opinion incidentally expressed by Lord Kenyon, in Bird v. Thompson,(a) which, notwithstanding the highly respectable name by which it is sanctioned, is opposed by every principle of the law of contracts. From the abandonment the insurers derive no right of action against the master. The property, which vested in the defendants by the abandonment, did not vest until after the loss. The breach of blockade and the loss are distinct things. The rights of the insurers relate back to the loss ; not to the breach of blockade, which caused the loss. The Captain, therefore, is not answerable to them for acts which took place before their rights accrued.</p> <p>In Symonds v. De La Cour, (cited in 2 Condy's Marsh. 705.) it was decided, that the Captain was not a competent witness to prove that a deviation was justified by necessity. The case of Martin v. Henrickson,(a) strongly resembles this, and is in point against the admission of such testimony. It was an action brought against the defendant for mismanaging his ship, so that it ran over the plaintiff’s barge. The pilot was offered as a witness for the defendant, but rejected by Chief Justice Holt, because he was answerable to the owner in damages for a loss, which arose from his mismanagement. Thus it is apparent, that the Captain was an incompetent witness, because he had a direct interest in the event of the suit.</p> <p>2. The question is not, whether under the warranty, the Rolla ought to have been furnished with all the papers necessary to prove her a neutral bottom, and to entitle her to protection-as such, but whether she was so furnished, and whether it was not incumbent upon the plaintiff to prove a compliance with his warranty. It is said by Marshall, (2 Condy's Marsh. 713.) in speaking of the evidence which a plaintiff must give to enable him to recover, that the truth of affirmative, and the performance of executory warranties must be proved. It has been repeatedly decided that it is not enough that the property insured belongs to neutral owners; it is also necessary, that the vessel shall appear to have been navigated according to the law of nations, and to have been provided with every document required by the law of nations, and treaties with particular powers, to entitle her to protection as a neutral. Thus in Rich v. Parker,(b) Lord Kenyon decided, that the insured could not recover on a policy which contained a warranty that the ship and goods were American property, because, when the vessel sailed she had not the sea-letter or passport required by the treaty between the United States and France, although at the time of capture this document was on board. And the cases of Baring v. Clagget,(a) and Baring v. Christie,(b) went upon the same grounds. See also Blagge v. The New York Insurance Company,(c) Calbraith v. Gracie,(d) Elting v. Scott,(e) Griffith v. The Insurance Company of North America.(f)</p> <p>The law being thus settled, that the vessel must be furnished with all the documents necessary to prove her a neutral bottom, the next inquiry is, what papers are called for by the law of nations or by treaty, and in which of them was the Rolla deficient ? The treaty between the United States and Holland, (art. 25. 1 Graydon, Appx. 8.) requires, in case one of the contracting parties happens to be at war, the vessels of the other to be provided with a sea-letter or passport, expressing the name, property, and burthen of the vessel, together with the name and place of abode of the master. It also requires a manifest, or in place of it a certificate of a certain description, in order to shew, whether there are any contraband goods on board, and whether or not they are destined to an enemy’s country. The treaty between the United States and Spain, (art. 27. 1 Graydon, Appx. 55.) requires papers of the same character. Our treaty with Prussia, (art. 14. 1 Graydon, Appx. 69.) requires a passport, a charter party, or bills of lading for the cargo, and a list of the ship’s company ; and our treaty with France, (art. 4. 17. 1 Graydon, Appx. 74. 78.) a passport, in the form therein prescribed, and a certificate, containing the particulars of the cargo, the name of the place from which the vessel sailed, and of the place to which she is bound. The papers rendered necessary to a neutral vessel, by the law of nations, and by treaty with foreign powers, may be summed up to be ; a sea-letter or passport, a manifest, a charter party, or bills of lading, a clearance and a role d equipage. The Rolla exhibited no other proof of her American character than her register. It is plain, therefore, that the insured has not shewn a compliance with his warranty, and ought not to recover.</p> <p>The argument on the last point, viz. whether the Rolla had broken .the blockade of Monte Video, was entered into so much at length, and embraced so much conflicting testimony, that even a slight sketch of it would occupy too much room to justify its admission. It is deemed sufficient, therefore, merely to mention,the authorities which were cited, and to refer to the charge and opinion of the judge who tried the cause. 6 Rob. Rep. 365. The Rolla. 1 Rob. Rep. 69. The Mercurius. Id. 78. The Betsy. 2 Rob. Rep. 96. The Juno. Id. 136. The Hoffnung. 1 Edwards, 250. The Courier. Id. 252. The Charlotta. 1 Rob. Rep. 73. The Frederick. Id. 126. 8. Vrow Judith. 2 Rob. Rep. 93. The Neptunus. Id. note. The Adelaide. 7 Johns. 54.</p> <p> Arguments against the motion. </p> <p>1. The admission of Captain Coffin’s deposition ought not to affect the verdict. His protest, which was read at the trial, is, by the law of Pennsylvania, good evidence ; and if an ex parte declaration, such as a protest, is admitted, it would be most extraordinary indeed, to exclude a deposition of the same individual, taken under all the solemnities of the law, and upon a full cross-examination. But there is another reason for receiving the testimony of the Captain — the necessity of the case. The same rule that would exclude him, would exclude the whole crew, and then there would be no possibility of pr-oving such facts as are essential to the plaintiff’s claim. There are many cases in which the rule, by which interested witnesses are rejected, is broken through. An interested party will be admitted for the sake of trade, and the common usage of business; as, to take a single example, a porter to prove the delivery of goods. So too where no other evidence can be reasonably expected; as in the case of interested servants, who are often received, as witnesses for their masters. Several instances of this sort are to be found in Buller’s N. P. 289, 290. 1 Taunt. 14.</p> <p>But the interest of Captain- Coffin is neutralised by an equal interest the other way; because, if the plaintiff recovers, and the Captain has been guilty of misconduct, he is responsible to the underwriters. This was expressly said by Lord Kenyon, in Bird v. Thompson,(a) where he rejected the master as a witness in an action for a loss by barratry, solely upon the ground, that if the plaintiff recovered, he would be answerable to the underwriters. There is, however, a circumstance, which will at once remove every objection to the deposition.' All recourse to the Captain is barred by the statute of limitations. The acts by which it is said he ha® rendered himself responsible to his ownei-s,took place in the year 1806. He therefore had, when his evidence was given, a good and legal defence to any action which might be brought against him for his supposed misconduct. The subtle and narrow grounds upon which the law formerly went, with respect to the competency of witnesses, has of late years been considerably enlarged, and a much more liberal rule introduced. It is not enough now, that the witness has an interest in the question, or that he may possibly become liable to an action in a certain event. It is necessary, in order to exclude him, that he should appear to have a direct interest in the event of the suit in which he is called to give testimony, or that the verdict, which is to be influenced by his evidence, should be evidence for or against him. The alleged interest of Captain Coffin is not of this description. He is not immediately interested in the event of this suit, but may be exposed to an action by the present plaintiff, if he should not now recover; and this action he has it in his power completely to defeat by pleading the act of limitations. It would, therefore, violate the rules of evidence, as now understood at least, to reject his deposition. Peake, 144. 1 Hen. & Mun. 167. 2 Caines, 77.</p> <p>2. That a vessel warranted neutral, should be provided with proper neutral documents, cannot be denied ; but to call upon the plaintiff in the first instance, to shew that they were on board, in order to entitle himself to recover, is unprecedented, and in this case particularly hard; because, had this requisition been anticipated, it might easily have been complied with. The established practice in England, is to give general evidence of neutrality, and leave it to the defendant to shew the reverse. 2 Condy's Marsh. 714. This was done;, The register of the Rolla was laid before the jury, who ought to have presumed, unless the contrary had been shewn, and who did presume, that she was furnished with every proper document. This presumption they were particularly called upon to make, as the vessel was captured, and the papers carried beyond the controul of the plaintiff. Besides, what the law requires to be done is to be supposed to have been complied with.</p> <p>Mr. Ewing then went into an argument relative to the ah íeged breach of blockade, dwelt upon the facts, and in the course of it cited the following authorities. 6 Rob. Rep. 365. The Rolla. 3 Rob. Rep. 127, 8, 9. 2 Rob. Rep. 94, 5. 2 Johns. Cas. 469. 3 Caines, 235, 6. 1 Rob. Rep. 79. 3 Rob. Rep. 124. 232. 310. 1 Johns. 253. 2 Caines, 11, 12. 1 Rob. Rep. 148. 1 Johns. 265. Edwards, 312. 3 Caines, 236, 7. 240.</p> <p>To shew the principles by which Courts are governed in awarding new trials, he cited 9 Johns. 311. 1 Bl. Rep. 1. 418. 6 Bacon, 663, 4. 3 Binn. 317. 2 Binn. 495. 1 Taunt. 14. 1 Caines, 24. 162. 3 Johns. 170. 271. 2 Cir. 1142. 1 Wils. 22. 3 Wils. 45. Brack. Law Mis. 549. 552. 3 Binn. 400.</p> <p>Reply. 1. The admission of the Captain’s protest, affords no reason why his deposition should be received. The protest is subject to many restrictions. It must be made at the . first port and in the shortest possible time, The deposition on the other hand, may be made at any period, after full deliberation and a knowledge of the consequences which may result from it, and may differ, as in fact it does in this instance, from the protest. The argument derived from necessity, might have some force if the necessity were shewn to exist; none exists, however, in the present case, because there is no objection to the evidence of the mate and crew. With respect to usage, there is in Pennsylvania none, which in point of law, authorises the admission of the Captain’s deposition ; and if such an usage has crept in improperly, malus usus abolendus est. Nor is the argument founded upon the statute of limitations a sound one, because the statute does ■not extinguish the cause of action ; it merely gives a defence which the party may avail himself of or not as he pleases.</p> <p>2. With respect to the papers. Presumptions should have some grounds to stand upon. The capture of the vessel is no such ground ; it furnishes no presumption that the proper documents were on board and lost, because there are at home copies of the sea-letter, bills of lading, &c. which might easily have been procured, and they under the circumstances of the case would have been sufficient. No law of the United States requires a vessel to be provided with all the papers which are necessary to a neutral. This is a suffi-cient answer to the argument, that what, the law requires t<5 be done must be presumed to have been done. The only papers required by the laws of the United States are, a clearance, shipping articles, and a Mediterranean pass ; but these afford no proof of the existence of a charter party and certificate of origin. The rule laid down in 2 Marshall, 714, is susceptible of a different construction from that given to it by the opposite counsel. The general evidence of neutrality, without doubt, includes all the documents essential to the neutral character of the vessel.</p>

THIS case came before the Court upon exceptions filed by the plaintiffs to the report of the commissioner appointed ■ to inquire into and report the liens, &c. upon a certain building in'the city of Philadelphia. In giving their opinions, the Judges have rendered any further statement of the case unnecessary.

<p>' ON a return to a mandamus commanding the defendants to restore John Hansell to his place as a member of the Pennsylvania Beneficial Institution, or to shew cause to the contrary, the questions arising upon it were argued by Nor-bury and Browne for Hansell, and by Ash and J. R. Ingersoll, for the Institution; when Tilghman C. J. delivered the following opinion, which embraces the whole case.</p>

ACTION on the case for money had and received, &c. brought by William Lewis, Esq. against John Smith, marshal of the United States, for the district of Pennsylvania, to recover the proceeds of the… Held: that a plaintiff who continued his process, might have execution twenty years afterwards; and a return of the first execution is not made a pre-requisite.

AFTER argument upon a rule to shew cause, why a non pros, entered by the defendant’s attorney should not be. taken off, the following opinions were delivered.

*• . AN execution, having been levied upon an unfinished house belonging to the defendant, the money arising from the sale Of it was bróught into Court, and a commissioner appointed to examine into and report the liens. , The act of 17th March 1806, (4 Sm.

<p>Where the mother of two female children had been divorced from her husband, on account of her adultery, the Court, on a habeas corpus9 delivered them to the father ; the children no longer reouirins* those attention! which amolher alone can properly bestow, and having arrived at an age when their ■morals were likely to be injured by bad example, See 5 Binn. 52Q.</p>

CASE stated as follows : “ Venditioni Exponas to March Term, 181 5. “ It is agreed, that the sum of 4302 dollars 83 cents be considered as in Court, and subject to the opinion of the Court upon the following case “ On the 5 th day of April, 1800, Thomas Parr Wharton and John Wharton, theretofore trading under the firm of Thomas P. Wharton and Company, assigned, “ All their, the said “ Thomas P. Wharton and John Wharton, junior’s, real and “ personal estate, whatsoever and…

<p>On a demurrer to parol evidence, if the evidence be uncertain or circumstantial, the 'party offering it may pray the Court not to be compelled to join in the demurrer unless every fact, which the evidence in any degree tends to prove, be-confessed. So if one fact tends to the induction of another, the last fact must also be admitted. If the Judge who tries the cause errs, in direct* ing a joinder in demurrer, it is good cause for the Court in bank to oix der a venire facias cienovo,. The Court in bank may, on. the argument of the demurrer, make every inference of fact, which the evidence warrants; or if, upon consideration of the record, they should be of opinion, that there are not sufficient facts to warrant a judgment, they may or-' der a venire do notic.</p>

In Error. ERROR to the Common Pleas of Philadelphia county. The defendant in error, who was plaintiff below, was an emigrant from Holland, and in order to raise money to pay her passage to Philadelphia, bound herself as a servant to the plaintiff in error, who was defendant below, for the term of five years from the 22d December, 1807.

AT the instance of Robert Taylor, a rule Was granted upon John Thompson, Malcolm M'-Donnald, and Frederick Axe, commissioners of Philadelphia county, to shew cause why a mandamus should not issue, commanding them to ' draw an order on the county treasurer for seventy dollars for the payment of Taylor’s bill, for goods sold and delivered to the commissioners for public use.

In Error. WRIT of error to the Common Pleas of Philadelphia c.ounty.

THE defendant on the 12th December, 1800, made a promissory note in favour of the plaintiff for 1000 dollars, , payable in sixty days, which was indorsed by the plaintiff for the defendant’s accommodation, and discounted by the Bank .of the United States.

In Error. MUSGRAVE, the plaintiff below, on the 13th March, 1813, obtained a judgment upon a promissory note, before an alderman, against Bailey the defendant, who appealed to the Common Pleas of Philadelphia county, where the. cause was tried by a jury, and a verdict given for the plaintiff. The defendant moved in arrest of judgment, because the declaration laid the assumption on the 1st June, 1813, which was subsequent to the commencement of the action.

In Error. A WRIT-of error'having issued to íhe District Court for the city and county of Philadelphia, the record was returned, and presented the following case. Bleeker, who was plaintiff below, on the 6th February, 1808, instituted a foreign attachment in the Common Pleas of Philadelphia county, against Henry Wylie of New York, and attached four policies of insurance, and the proceeds of the sale of certain wines in the hands of Willing and Francis and others as garnishees.

ASSUMPSIT to recover freight pro rata, for the transportation of the goods of the defendant in the vessel of the plaintiffs, and also, to recover the defendant’s proportion of a general… Held: that it would be absurd to apply this rule to a case in which the vessel was purposely run ashore to save the merchandise, and that with success. These principles have been fully recognised by some of the most respectable tribunals of our own country. Sewall J. in delivering the

THE circumstances of this case are so fully explained in the opinions of the judges as to render any other report of them superfluous.

DEMURRER to the plaintiff’s declaration. The declaration, in substance, set forth, that on the 30th October, 1812, an election was duly held in the city of Philadelphia, for the election of twenty-five electors, to represent the state of Pennsylvania as electors of a president and vice president of the United States. That Smith, the defendant, was one of the inspectors of that election, for Walnut ward, in the said city.

In Error. WRIT of error to the'Common Pleas of Philadelphia ■County. Bozarth, the plaintiff below, brought his action against' King, the defendant, before a Justice of the Peace, and ob-; tained judgment for 98 dollars and costs. King appealed to. the Court of Common Pleas, where there was a trial by jury, and a verdict for the plaintiff for 89 dollars, and costs.

THE proceedings in this case having been removed from the Court 3f Quarter Sessions of the county of Philadelphia to, this Court, by certiorari, the following exceptions to them were filed. 1.

DEBT upon a bail bond. on the first day of the last term, obtained a rule to shew cause, why the proceedings in this suit should not be set aside, upon confessing judgment in the original action as of December Term, 1815, and paying the costs of the bail bond suit. 1 • He therefore contended, that this case fell directly within the rule laid down by this Court in Priestman v. Keyser,(a) and was even a stronger case in favour of the surety; because, before the commencement of…

In Error. Christopher Zeigler, the plaintiff in error, brought all áction on the case in the Common Pleas of Lehigh county, against Abraham Zeigler, the defendant, to recover a compensation for rebuilding or repairing a saw-mill bn the premises of the latter. In addition to several other pleas, the defendant pleaded an award of arbitrators and judgment in a former suit between the parties, in which the present defendant was plaintiff and the present plaintiff defendant.

RULE to shew cause why a mandamus should not issue commanding the commissioners of the county of Philadelphia to pay Joseph Barnes, esq. certain fees due to him as clerk ’of the Court of Oyer and Terminer, &c. In giving his opinion the Chief Justice has noticed every thing material in the case.

<p>; If the survey and condemnation of a vessel, state certain facts which amount to genera] unsoundness,the underwriters, upon a policy which contains a clause, that, “If the vessel, after regular survey, should be condemned for being unsound or rotten, the assurers shall not be bound to pay their subscriptions,” are discharged.</p>

In Error. UPON a writ of error to the Quarter Sessions of Philadelphia county, it appeared, that Hunter had been indicted in that Court, for that he “ did keep and maintain a certain “ common, ill-governed, and disorderly house, and in his said “ house, for his own lucre and gain, certain persons, as well “ men as women, of evil name and fame, and of dishonest “ conversation, to frequent and come together, unlawfully and “ wilfully did cause and procure, and the said men and…

RICHARD SMITH having been convicted before a Court of Oyer and Terminer, composed of the Judges of the Court of Common Pleas of the county of Philadelphia, of murder in the first degree, and having received sentence of death, his counsel now moved this Court to allow a writ of error to remove the record, and grounded their motion upon the following reasons. 1.

A Habeas Corpus having been directed to the keeper of the prison of the city and county of Philadelphia, commanding him to produce the body of Eliza, a negro child, together with the cause of her detention, he returned that he held her by virtue of a^ warrant of commitment, issued by Samuel Badger, esq. an associate judge of the Court of Common Pleas, who had committed her, “ as being the daughter “ of Mary, a negro woman, the slave of James Corse, of “ Maryland, and as…

THIS action was brought upon a policy of insurance, dated June 20th, 1809, upon coffee, shipped on board the brig Resort, on a voyage from New Tork to Bremen, “ with “ liberty to enter a Dutch port, when informed on arriving on that coast, that it may be done with safety; warranted Ame- “ rican property; not to abandon in consequence of the port “ of destination being blockaded, but shall have liberty to “ proceed to another port, not blockaded, at'the risk of the “…

THIS was an action of account render, in which the plaintiffs charged the defendant as bailiff and receiver of monies by the hands of sundry persons in Philadelphia, Cal- , ciitta (in Bengal,) and Charleston (in South Carolina,) from the 1st December, 1810, to the 1st August, 1813, and also, as receiver, during the. same period, of divers goods, to merchandise, and make common profit thereof, for the use of the said plaintiffs and the said defendant. The defendant pleaded, 1.

THE plaintiff brought this action against the defendants, as assignees of Rhoads and Perit, to obtain reimbursement out of the funds in their hands, for the amount of several custom house bonds, which as surety, he had' paid to the United States.

<p>In Error,</p> <p>ERROR to the Common Pleas of Lebanon county.</p> <p>Of the two subscribing witnesses to a bond, one was dead, and the other lived in Allegheny county, in the state of Pennsylvania. Rough, the plaintiff in the Court below, offered, on the trial of the cause, evidence of the hand-writing of these witnesses, and of the obligor, in order to prove the bond. This evidence was objected to by the defendant: but admitted by the Court: who sealed a bill of excepti, ' ; 1 .</p> <p>cited Clark v. Sanderson.(a)</p> <p>cited 2 Dall. 44.</p>

In Error. ERROR .to tjie .Common-Pleas of Dauphin,cqunty, .in ejectment. . : The plaintiff claimed, under- a .warrant to George Bartramf dated Marsh 15th, 17.74, and - survey thereon, April 20th, 1774. The title .of. George Bartram was regularly deduced to the plaintiff, except that certain deeds from George Bar-tram to Alexander Bartram,-and- from-Alexander Bartram, to William Hiorn were not produced.

<p>In Error.</p> <p>THIS was an ejectment for lands in Dauphin county^ It came before this Court on an exception to the charge of the President of the' Court of Common Pleas. The exception was taken under the act of assembly, and no facts appeared on the record except such as were stated or alluded to in the charge. The ejectment was brought by the defendants in error, children of Martin Niesly deceased, founded on a parol contract between the said Martin and his father Jacob Niesly, for the purchase of the land in dispute, which contract, as the plaintiff alleged, was áccompanied with payment of part of the purchase money, and delivery of possession.</p> <p>Several exceptions were taken to the charge of the Court which are stated in the opinion of this Court. The jury gave a verdict for the plaintiffs.</p> <p>. On the 12th May, 1814, during the trial of this cause, and before verdict, the guardian of the plaintiffs filed a stipulation on their behalf, that “ upon a verdict being rendered in fa- “ vour of the plaintiffs, the Court should appoint auditors to “settle the amount which may be due of the purchase mo-' “ ney of 1600 pounds, under the bargain between Jacob Nies- “ by, deceased, and his son Martin Niesly, bringing into ac- “ count against the said purchase money, the monies paid by “ his son Martin in his life-time thereon, and the rents, pro- “ fits, and proceeds of the lands for which the said verdict “ should be rendered, during the time the same had been “ holden by Jacob Niesly in his life-time, and the defendant “after making all just allowances for the residence, support, “ and maintenance of the said Jacob Niesly, deceased, during “ his life-time, and for that of his wife up to the said settle- “ ment out of the said rents and profits or otherwise: and “ make return thereof to this Court: which, being approved * ' < < < i i c c C C <!of by the Court, should be paid or rendered to the legal re- “ presentatives of Jacob Niesly deceased, before judgment' “ be rendered, on the said .verdict by the said Court.” This was signed by the guardian for and on account of his wards the plaintiffs. ....</p> <p>On the 15th May, 1814, the Court appointed -three auditors for the purpose above mentioned: and that they should make report of their proceedings therein according to law.</p> <p>The auditors met on the 24th January, 1815, and made report under their hands and seals on the same day that they had met, and “ being respectively sworn in the premises, it " was made appear to them that the defendant, Joseph Bass* “ ler, had received notice of the time and place of meeting “ by service of the proceeding, submissidn, appointment, and " notice thereof, indorsed, on the 11th day of that instant, and “ Amos Ellmdker esq., as attorney for said defendant, who “was also present, moved a postponement of the hearing of “ the matter submitted, but afterwards withdrew; and they “ went on to hear the allegations and proofs on the part of the “ plaintiffs, concerning the matter submitted to them; from '“all which it appeared to them, that the estate of Aiartin “ Niesly, deceased, was justly indebted to the estate of Jacob “ Niesly, deceased, in the premises so submitted, the sum of “ 359 pounds : which sum they awarded that "day to be due “ and owing in the aforesaid premises, as the clear balance of “ the purchase money, for the lands for which the within ■“ mentioned ejectment was brought.”</p> <p>Accompanying these proceedings was an affidavit of two witnesses, dated February 1st, 1815, that the guardians had tendered to one of the executors of Jacob Niesly, deceased, the amount reported: which he refused to receive.</p> <p>On the 1st February, 1815, on motion, and deposition filed of tender and refusal of the money reported, the Court directed judgment to be entered for the plaintiffs in the ejectment.</p> <p>The following exceptions were taken in this Court.</p> <p>1. That Jacob Nieshfs confessions were not evidence of the contract.</p> <p>2. The Court erred in saying, that the contract might he proved by circumstances.</p> <p>3. That possession alone will not take a parol contract qut of the act for the prevention of frauds and-perjuries. ■</p> <p>4. That' the balance of the purchase money and interest should have been tendered before the commencement of the suit.</p> <p>. . . . 5. That the Court erred in permitting the stipulation to be filed during the trial: in appointing auditors: and in the subsequent proceedings relative to their acts.</p>

In Error. ERROR to the Common Pleas of Dauphin county. J. and W. Rutherford, the plaintiffs below, filed a declaration containing two counts. The first was in trover for- a quantity of wheat and rye : the second was to the following effect. .

Certiorari. ' • CERTIORARI to the Quarter Sessions of Lebanon county.

<p>In Error.</p> <p>ERROR to the Common Pleas of Lancaster county.</p> <p>Matthew Irwin, the plaintiff below, filed a declaration for money paid by him for the use of the defendant, on which issue was joined, a verdict found, and judgment entered for the plaintiff. There was, besides, a statement of the cause of action, filed under the act of assembly. This statement set forth a promissory note for 600 dollars given by the defendants to Levi G, Hollingsworth, dated 10th November, 1812¿ and payable in sixty days after date, without defalcation, at the Farmers' Bank of Lancaster. It was indorsed by Levi G. Hollingsworth and Matthew Irwin, and being protested for non-payment, the plaintiff took it up. On the trjal of the issue in the Court below, the plaintiff offered this note in evidence. The bill of exceptions stated that “ this being ob- “ jected to, the plaintiff then and there gave in evidence the “ testimony contained in the notes of the president hereto an-: “ nexed, and then again offered the said note, which being “ still objected to, as well as the said testimony, the said 44 court, after hearing counsel on the said objection, did then 44 and there over-rule the same, and admitted the said note to 44 be read, and .the testimony to be givenwhereupon an exception was taken.</p> <p>The evidence referred to. was of the following facts, viz.</p> <p>1. That the association called the Farmers’ Bank of Lancaster was formed January 17th, 1810: the capital stock to consist of 300,000 dollars: that they opened their books and took in subscriptions January 18th, 1810; on which day, and within a few days after, the stock was subscribed, and five dollars a share paid on subscribing: and that 3,118 shares were taken in the borough of Lancaster, at SO dollars a share.</p> <p>2. That they began discounting January 18th, 1810; discounted on that day twenty-five dollars, and continued to discount every Tuesday afterwards.</p> <p>3. That from January 18th, to March 19th, 1810, they discounted 52,000 dollars. From January 18th, to February 20th, .1810, -.they used for discounts the notes of other banks, not having notes and plates of their own completed : and from February 20th, 1810, used their own notes in all their banking transactions.</p> <p>4. That the association discounted, the note in question,October 8th, 1811.' It was protested May 13th, 1812, and paid b.y. Matthew Irrpi?tf the indorser, viz.:' 623 dollars 93 cents principal, with interest, and costs of protesting.</p> <p>,5. That at the session of the legislature of 1811-12, the association applied tó' them for a charter: to be exonerated from .personal responsibility, and to obtain an extension of the.capital to a million of dollars: but the application was rejected.by the legislature.</p>

In Error. ERROR to the Common Pleas of Dauphin county. ■ This was an action against Rahm, late sheriff of Dauphin county, and his sureties, founded on an alleged breach of his official bond. An execution had issued on a judgment against the administratrix of Thomas Moore, deceased, by virtue of which Rahm, the then sheriff, levied on the real estate of Thomas Moore, deceased, and sold it.

In Error. ERROR to the Common Pleas of Lycoming county.- Ejectment by Butler and others, the plaintiffs below, against Stewart. On the trial the plaintiffs gave in evidence a war- contended, that the patent might have been given in evidence if the warrant and survey had not been read but after they had been read, it was incumbent on the plaintiff to shew the conveyance from 'the warrantee before the patent,could be given in evidence.

In Error. A WRIT of error issued in this case to the Court of Common Pleas of Northumberland county. , Arbitrators had been chosen in the Court below, and a report filed: from which the defendant, Smith, entered an appeal. The Court below on motion ordered the appeal to be struck off, and judgment to be entered on the report: the costs not being paid.

<p>Tn ejectment for lands claimed under a -will, it is no-objection to giving in evidence papers relating to the lands, tnatparfc of the testator’s interest had accrued after the making of the ■will.</p> <p>. The testator left a widow and infant, and in his will gave a power of appointment and partition between them to tjie widow or child, a.nd six executors. Three of the executors proved the will, .and in conjunction with the widow, executed the appointment and partition. There was no proof •that the other executors had renounced. Query¿ whether the partition is valid. Butat all events it is not Vokí: but voidable. And no person can object but the infant, after coming of age.</p> <p>Though a Reposition is taken by the consent of parties expressed in the strongest terms,..yet it remains open to all legal exceptions: unless the contrary is declared.</p> <p>Granting or refusing a new triaiis not the subject of a writ of error.</p>

In Error. THIS was a writ of error to the Common Pleas of Ly. coming county, in an ejectment brought by the plaintiff against the defendants. • A verdict was given for the plaintiff in the Court below, and 3 a motion was made by the defendants in arrest of j udgment, and for a new trial.

<p>It is not error to charge the jury that the lines of an adjoining survey will not make a sufficient survey for the party, if the Judge leave it to tire jury whether there, was a survey made or not. -</p> <p>A judgment is not to be reversed for error because the Judge, in his charge, has not made all the remarks the nature of the case admits of.</p> <p>If an application for land be descriptive, and due diligence is used, the title commences from) the application.</p> <p>It it be loose, it dates from the survey, unless the party forfeit his right by misconduct.</p> <p>A party can riot be injured by the misconduct of the deputy surveyor.</p> <p>A title, by application and survey, may be abandoned.</p>

Certiorari. THIS was a certiorari to the Quarter Sessions of Bradford county, to remove certain proceedings respecting the erection of a separate township of that part of Wyalusing township lying on the west side of the north branch of the river Susquehanna.

In Error. THE plaintiff assigned for error, that the Court of Common Pleas gave judgment of non pros, against him. It was an ejectment brought in the Common Pleas of Northumberland county, in pursuance of the act of 21st March, 1806. The defendant appeared, and pleaded not guilty: the plaintiff not having filed a description of the land as directed by the act of assembly.

In Error. EJECTMENT to the Common Pleas of Lycoming ..county, brought by the defendant in error, the plaintiff below, in which there was a verdict in his favour. Two bills of exceptions were tendered by the defendant below, and returned with the writ of error. The first error assigned, was upon a bill of exceptions to the testimony of John Hayes.

<p>When a survey is returned by the proper officer j. the presump-, tion is in favour of an actual survey having been made: and it lies on the opposite party to disprove it.</p> <p>The opinion of a Judge on mailer of facéis not, error.</p>

<p>If, from the answer of the Court, the jury may be led to suppose, that certain material points which are matters of fact for the jury, are matters of law which they had no right to consider, it is error.</p> <p>& vendor with general warranty is a good witness to establish a title against that of his vendee</p>

Bellas moved to quash the certiorari, because tbe proceedings were still depending before the Court of Quarter Sessions. The last thing done by the Court was to quash the re-reviewers’ report, which was in favour of the road, for uncertainty! But a neV re-review might have been had.

In Error. THIS was a scire facias sued out by the plaintiff before a magistrate of Northumberland county, against the defendant as security of Henry Beshler a constable, upon an obligation entered into by Beshler and the defendant, when the former was appointed constable, conformably to the act of 27th March, 1804, section 17, and the act of 20th March, 1810, section 19.

<p>In Error.</p> <p>ERROR to the Common Pleas of Northumberland county, in an action on the case, brought by Mans, in which bail was demanded in 600 dollars. The defendant entered a rule of arbitration, and an award took place in his favour. It was now assigned for error, that the defendant had not entered special bail before he entered his rule of arbitration.</p> <p>cited 6 Binn. 32.</p>

<p>A decision of a dispute between two townships concerning a pauper, is conclusive upon a new township subsequently created, by a subdivision of one of them.</p>

<p>In Error.</p> <p>ERROR to the Common Pleas of Northumberland county, in an ejectment.</p> <p>The defendants in error, plaintiffs below, claimed under a sheriff’s sale by virtue of a levari facias, in an action in which Levi Hollingsworth was plaintiff, and Mary M'-Lees, executrix of fames M'-Lees deceased, defendant, fames M'-Lees had in his life-time given, a mortgage of the land in dispute to Levi Hollingsworth, who sued out a scire facias against M'Lees’s executrix after his death, and obtained judgment by default. A levari facias on the judgment was issued to November Term, 1793, to which the sheriff returned, “ that he had struck off the land to Jeremiah Jackson for “ 67 pounds, November 29, 1793,- but that Jackson having “ made default in payment of the said money, the- sheriff had “ not the money before the said justices, &c. By reason of “the premises he returned the said land to remain in his “ hands unsold for want of buyers.'” An alias levari facias issued to January Term, 1794; on which the sheriff sold the land to Levi Hollingsworth, under whom the plaintiff claimed. -At January Term, 1794, the attorney for Hollingsworth moved the Court to quash the proceedings on the first levari facias, and to confirm the sale made to Hollingsworth. But after argument the Court ordered, “that the sale pn the “ first levari facias should be confirmed, and that the sheriff “ should amend his return as to the sale made to Jackson, “ and make a deed accordingly ; and that the second sale to “ Hollingsworth should be set aside.” In compliance with this decision of the Court, Flavel Rowan, the sheriff, upon the 25th August, 1794, executed a deed to Jeremiah Jackson, which was acknowledged 26th November, 1794, and recorded 29th September, 1795. « .</p> <p>It appeared in evidence, that the first sale was held at Sunbunj during the Court: and that John Kidd, attorney for Mr. Hollingsworth, was displeased that the land Was struck off without his being present: and advised the sheriff to return his writ into the office, unsold for want of buyers. There was no evidence, that the sheriff had ever demanded the money of Jackson: but Jackson tendered the money to the sheriff, who received it prior to the second sale. The plaintiff, Fury, was heir at law of Jackson, and as such claimed a moiety. The other nrioiety had been sold to Rockefeller under an order of the .Orphan’s Court, on the petition of the administrator of Jackson.</p> <p>It appeared, that the defendant below came into possession by consent of Hollingsxvorth about the year 1801,</p> <p>The Court below was requested by the defendant to charge -the jury on seven points, which were, however, reducible to two.</p> <p>It was contended, 1. that the judgment obtained upon the: mortgage had not been revived by scire facias, before the issuing of the levari facias. 2. That the Court of Common Pleas had no right to set aside the second sale and confirm the first.</p> <p>On the first objection the Court directed the jury, that the judgment upon the mortgage appeared to be a judgment' entered by default of M'-Lees’s executor, and at what time it was entered did not appear: the judgment not being dated. It might have been entered a short time before the levari facias was issued: or it might have been entered at the Term to which the scire facias was returnable. It having been acquiesced in for so great a length of time by the executors of M'Lees, it cannot now be considered an irregularity sufficient to defeat the plaintiff’s title.</p> <p>On the second objection the Court directed the jury, that the Court of Common Pleas had a right to set aside the second sale, and confirm the first, upon its being made fully to appear to them, that the first was a fair sale, and the purchaser always ready to pay the money. What evidence there was, which induced the Court to confirm the first sale, could not, at this length of time, be fully known: but they had no right to presume, they had not sufficient evidence to warrant them. For, from what now appeared, the first must have been a fair sale, and the purchaser, Jeremiah Jackson, ready to pay the money: and he had actually deposited it with the sheriff before the second sale. I* was not from the inclina* tioil of the sheriff, but it was by the advice of John Kidd.' that he returned the writ into the office of the prothonotary * manner he did. The doctrine contended for by the defendant’s counsel, that there could be no averment against the , . ,., , sheriff’s return, did not apply in a case or this kind: tor until the deed is brought into Court, and the acknowledgment received, the whole proceeding may be considered as in fieri. The sale is not complete until the Court has received the acknowledgment of the deed: and any time before that, a fraudulent sale may be objected to. The return of the sheriff into the office, by the importunity of counsel, could not be, considered as accepted of, before the deed was brought into Court to be acknowledged. In this case the sheriff complied with the order of the Court, and ■ made a deed to Jeremiah Jackson; and his mere omission in not amending his return agreeably to the directions of the Court, cannot defeat or destroy the title of the plaintiffs. The defendant excepted to this opinion, and the Court sealed a bill of exceptions. The jury found a verdict for the plaintiffs.</p> <p>1. The levari facias issued erroneously: it being several years after the judgment, without a scire facias to revive it.</p> <p>2. The Court had no authority to compel the sheriff tó alter his return. The first return was unalterable and conclusive. It was a perfect special return, made in obedience to the writ: and such as it is settled, that the sheriff has a right to make, where the person to whom the premises are struck off does not pay the money. Zantzinger v. Pole.(a) The sheriff’s return cannot be altered on motion. It can only be questioned in an action for a false return. Barr v. Satchwell.(b) Rex v. Holmes.(c) Loft's Rep. 372. 19 Vin. 194, 195. 200. 210. Mildmay v. Smith.(d) 2 Ray. 933. A record may be amended during the Term, but not after. Co. Lit. 260. 3 Black. Com. 407. After the sheriff’s deed is acknowledged, the fairness of the sale may be controverted in an ejectment. Porter’s lessee v. Neelan, 1 Sm. Laws, 65. If Jackson had brought the money into Court during the Term to which the levari facias was returnable, the Court might have ordered the sheriff to make the deed to him. Nothing done by Jackson after the return of the writ, could have any effect on his right: he should have paid the money before. The Court should have ordered an issue to try, whether the sale to Jackson was fair, and the money ready to be paid by him. Suppose the sheriff had refused to make a deed to Jackson: the Court could not have compelled him. He did not alter his return, although he did make a deed. So that there is no return to warrant the deed. They also cited Andrews v. Lentin.(a) 3 Wils. 58. Hewson v. Dygbert.(b) Carnes v. Smith.(c) Dawson v. Morris.(d) Burd v. Dansdale.(e)</p> <p>1. .The judgment entered in this case bears no date, there-* fore the Court will make every presumption in favour of the -execution. Besides, the irregularity of the execution cannot •be complained of in this action. It is good in point of form; and there was sufficient authority for the sheriff to sell. It is not void, but voidable: and that by the party to the suit only. By our act of assembly of 1705, a sale by the sheriff stands, even if the judgment should be reversed, Jackson v. Bartlett.(f) 3 Caines, 270. 273.</p> <p>2. The law of England is not applicable to this point. The sale of lands by execution depends on act of assembly tinder which the Court has a right to inquire before the acknowledgment of the deed by the sheriff: and such has been the practice. It is admitted, that the Court had no right to *ompel the sheriff to alter his return as to matter of fact. The order of the Court is to be considered as no more than leave granted to the sheriff to amend his return, so as to render it conformable to the facts. He would have been liable to Jackson’s action if it was false; if it were true,, he might have refused to amend. Before the acknowledgment by the sheriff all is in the power of the Court. Heister v. Fortner.(g) Lessee of Lazarus v. Bryson.(h) Young v. Taylor.(i) Murphy v. M'Cleary.(k) Fulwood’s Case.(l) Cowp. 20. 1 Dy. 73. 10 Vin. 586. 1 Dall. 197. Act of Assembly, 23d March, 1764.(a)</p>

<p>In Error.</p> <p>ERROR to the Common Pleas of Mifflin county, in ejectment.</p> <p>cited, 2 Smith's Laws, 160, 161, 162. 164. 179. Cox v. Ewing,(a) Pig v. Neville.(b) Edie v. Falkner.(c) Holmes v. Hay.(d) 5 Binn. 77. 1 Johns. 158. 2 Johns. 234. 10 Johns. 477. Davis v. Beaty.(e) 1 Harr. & M'Henry, 151. 1 Bay. 30. 4 Dall. 403.</p>

' In Error. THIS was an action of slander, in which the defendant in error, the Reverend Thomas Smith, was plaintiff below. The declaration set forth, that the plaintiff was a minister of sthe gospel duly and rightfully ordained, and the defendant said of him, that he was guilty of perjury.

In Error. ERROR to the Common Pleas of Luzerne county. William S. Evans brought this action against the Commonwealth under the act of 3d March, 1812, to recover compensation for a tract of land in one of the seventeen townships, Luzerne county, granted by patent to Edward Lynch, 23d March, 1786.

In Error. A MOTION was made by Mr. Fisher on behalf of the Commonwealth, to quash the writ of error in this case, because there was no special allocatur. It was an indictment for forcible entry and detainer, on which the defendant had been convicted and fined. alleged, that they could not procure an allocatur from Mr. Bradford, who prosecuted for the Commonwealth: because he was concerned for the defendant: the case being altogether in the nature of-a civil remedy,

<p>In Error.</p> <p>EJECTMENT in the Common Pleas of Camb'ria county.</p> <p>The plaintiff, Downing, gave in evidence on the trial a warrant to Thomas Houston, dated, July, 1st, 1784, and a survey in pursuance of the warrant. He then offered in evidence a patent to William Brown and James Harris, dated, 21st September, 1789, containing a recital of a deed from Thomas Houston to the said Brown and Harris, dated, 15th March, 1786. The defendant having shewn no title, objected to the patent’s going in evidence, and the Court rejected the evidence. The plaintiff tendered a bill of exceptions.</p> <p>The plaintiff also offered in evidence a deed from Thomas Houston to Brown and Harris for the land in question, dated, 15th March, 1786. It was acknowledged before John Carson, esq., who styled himself “one of the justices of the Court of Common Pleas for the county of Bedfords” but the certificat^bore no dateneither did it say, that Thomas Houston acknowledged the deed: but that the subscriber appeared and acknowledged it. The land Jay in the county which was once Bedford; afterwards Huntingdon: and then Cambria county. To this evidence the defendant also.objected : and the Court sealed a bill of objections,</p>

In Error. ERROR to. the Common Pleas of Indiana county. Case by Johnston against Weir. Arbitrators -were ap«' pointed to meet on the 18th June. They met on the 25th June, and adjourned to the 11th July:- on which day an award was made for the plaintiff, on hearing one of the parties only, for 241 dollars 89 cent's. .

In Error. ERROR tp the Common Pleas of Butler, in an ejectment, in which Graham was plaintiff. He claimed as actual ‘settler, and in order to make out h.is title,offered in evidence a paper purporting tp be the draft of a survey made by James Irvin, deputy surveyor. The survey consisted of six sides, ■on three of which there was no mentionof course or distance: ■neither did it appear what quantity of land was contained in the survey.

In Error. ERROR to the Common Pleas of Armstrong county. . ' 1 . This was an action of partition brought by Nathaniel Stewart against’Robert Brown. The plaintiff proved, that the land of which partition was demanded was purchased by the defendant and himself, as tenants in common,’ of the sheriff of Armstrong county, who sold- it by -virtue of an execution issued on a judgment obtained by Robert Stewart against James Reed..

In Error. ERROR to the Common Pleas of Butler county. This action was brought originally before a justice of the peace. The plaintiff’s demand was “ for damages under the “ sum of 100 dollars, for not building a stone chimney in a “ workman-like manner.’’ The cause was submitted to referees under the act passed the 20th March, 1810. The referees made an award in favour of the defendant: whereupon judgment was entered by the justice for the defendant.

In Error. ERROR to the Common Pleas of Westmoreland county. Held: that the vendor was bound to attend to that suit. 1 Johns. 517. He also cited, 6 Johns. 158. 9 Johns. 310. The assignor of a single bill is not liable on his assignment. He can only be bound in a case of fraud or on a special contract.

In Ebsoe. ERROR to the Common Pleas of Westmorland county, in an action of slander, in which McLaughlin, the defendant in error, was plaintiff below.

<p>’Ün'áer Úié btófc of 24'lh March, 1/9Í, & 'e'ofrimission'** ■e^’s deed otfc *íHe sale Of tod for taxes,' $sttót‘evklen<te it is not ¿’foved, that fea days notice was given pi the sale, ift three‘or mdre ■ofthe m’ost public place's of 4he 'county in Which the ^ads Hew ■</p>

In Error. ' ERROR to the Common Pleas of Westmoreland county, in an ejectment brought, by Mf-Donald and wife against Thomas Campbell, tenant. The plaintiffs in this ejectment in order to süppoft their title, gave in evidence ^location dated 3d April, 1769, in the name of William M'Ketizie,pía.‘á\e.v of M'Donald^) and a survey thereon, 20th October, 178§.

In Error. THIS was an action of dower unde nihil habet brought by Elizabeth Chambers, and the parties went to trial in the . Court of Common Pleas of Indiana county, On the issue of ne unques accouples, ode. The plaintiff offered to prove “ cohabitation and reputation of marriage with Moses Cham- “ bers, for ten years before the year 1776but the evidence was rejected by the Court. The plaintiff excepted to the' Court’s opinion, and the Court sealed a bill of exceptions,.

<p>Where a deposition was token under a rule of Court for taking depositions on reasonable notice, a notice on the 31th of taking a deposition on the 13th, was held to be too short, in the country.</p> <p>Where the only subscribing witness to a receipt had made his deposition, and remained till seven days before the trial, within the jurisdiction of the Court, and was not subpmnaed, and then went beyond the jurisdiction of the Court, without the party being apprised of his intention, his deposition was held good evidence. ' -</p> <p>Query. If, in such case, there he the name of another person, signed as witness to a receipt, offered in evidence* who is not produced, his handwriting must not be proved.</p>

In* Error. ON the 7th June, 1815, two justices of the peace of Allegheny county, issued their precept, reciting that Margaret Duncan, of Pitt township, in said county, on the 1st-April, 1807, was possessed of a messuage and tract of land, containing two acres in said township; and, on the-same day, demised the premises to James Blashford, to be and remain-a tenant at will, under the said Margaret, without any yearly rent or annual consideration.

In Error. ON an appeal from, an award of referees, and judgment thereon of a justice of the peace to the Court of Common Pleas of Somerset county, the plaintiff recovered less by the verdict of the jury than he had recovered before the justice. The plaintiff took out an execution, which was set aside by the Court of Common Pleas so far as respected costs, the question whether the plaintiff could recover costs being fully discussed..

In Error. ERROR to the Common Pleas of Allegheny county, in an action of debt on a bond. The defendant offered in evidence and relied on an award in an action heretofore brought against him by John M'-Killip, the obligee. That action was entered as an amicable action before a-justice of the peace. It was submitted by consent of- the parties to referees, who made an award for 256 dollars and 56 cents in favour of the defendant.

<p>In Error.</p> <p>ERROR to the Common Pleas of Westmoreland county, in which a case was stated in the nature of a special verdict, and judgment by consent entered for Hamilton, plaintiff below.</p> <p>It was an action upon a recognisance of fames Lodge, and others, to fames Hamilton, deceased, and Eleanor, his late wife, who survived him. Eleanor was one of the daughters of Benjamin Lodge, deceased, who died intestate, seized in fee simple of real estate: and proceedings being had in the Orphan’s Court, for the partition of his estate, the land being incapable of division was allotted to his son fames, and the daughters were to have their proportions of the value of the said "land, paid to them in money. To secure the share of Eleanor, this recognisance was entered into to James Harmltoni an$ Eleanor Ais wife, in right of his wife. Some time before the death of James Hamilton, he obtained a divorce £rom tbe bond of marriage with his wife, for her adultery. He died without having reduced this debt into possession, or made any assignment or disposition of it. Whether the wife should take it, or the administrator of the husband, was the question.</p> <p>A chose in action of the wife, not reduced to possession by the husband, survives to the wife.' Costs in Chancery, decreed to the husband and wife, survive to the wife. Coppin v. ——.(a) The husband sued in Chancery for a legacy to the wife, and died before decree: held that it survived to the wife. Bond v. Simmons.(b) The present case is even stronger than the common case of the death of the husband: because the marriage was dissolved by divorce, the effect of which is by the act of. assembly, to restore them to their respective rights, and enable them to marry again. Act of Assembly, 19th September, 1785. Sect. 6.</p> <p>Before the recognisance the wife’s right was to real estate. That right has been changed. The husband might have petitioned for a division of the real estate, without his wife. The change from land to money gave the husband the absolute right: and the recognisance ought to havé been taken to the husband alone, the joining the wife was surplusage. The husband, having obtained an award for a debt due to his wife, prevents the survivorship to his wife. Oglander v. Baston.(c) The husband’s creditors are the persons who now claim against the wife: the divorce act imposes no obligation on the husband to refund property of the wife. It only declares each person free from all obligations resulting from marriage. He cited 3 Lev. 403. 1 Strange, 229. 2 Mod. 217. Whitacre v. Whitacre.(d) Palmer v. Trevor.(e) Christ's Hospital v. Bryon & wife.(f) 2 Brown's Parl. Cas. 10.</p>

<p>In Error.</p> <p>JAMES ALEXANDER, the plaintiff, entered into partnership with Levi Jones, deceased, by written agreement, in which Jones undertook to keep fair and regular books respecting the sales of goods made by him. The plaintiff resided in this state, and Jones at Canton in the state of Ohio. After the death of Jones, the defendants, his administrators, took possession of the partnership books, and collected some of the debts at Canton. In this action the plaintiff complained, that Jones broke his agreement by not keeping fair and regular books, and that Jones in his life-time, and the defendants since his decease, had received debts of the partnership, for which they were accountable to the plaintiff. The plaintiff contended on the trial in the Court below, that the defendants, by taking possession of the partnership books and proceeding to collect some of the debts had made themselves liable for all the debts, whether collected or. uncollected, sperate or desperate. But the Court were of a different opinion, and charged the jury, “ that although the surviving “partner had a fight to the partnership books, yet.the admi- “ nistrators were not bound to deliver them till they were de“manded, and if the surviving partner had suffered them to “ remain in the hands of the administrators, and they had ig“norantly sued for and recovered any of the'partnership “ debts, they were liable to refund the amount, but are not, . J , . . • ' . í , r n “in consequence ol having sued for some, answerable for all “the partnership debts.” To this opinion the plaintiff excepted, and the Court sealed a bill of exceptions.</p> <p>On the trial the plaintiff gave in evidence, that in the store kept by Jones at Canton, sundry books were kept consisting of a ledger, a day book, an invoice book, and a book of sales. The defendant, Coulter, produced all the books except the book of sales. His oath was offered, touching the books, and being sworn, he declared, “ that he was not able at that time “to produce any other ho.ok, having no other in his posses- “ sion : that he had never seen the book of sales, but understood, that such a book was at Canton, having been placed “ with his consent, in the hands of a justice of the peace in that “ place: and he also declared, that he would have produced “ that book if possible, had he known that it was wanted.” The plaintiff had given no notice to the defendants previous to the trial to produce these books: but offered parol evidence of the contents of the book of sales kept by Levi Jones. The Court were of opinion, that parol evidence was inadmissible, because notice to'produce the book had not been given, Another bill of exceptions to this opinion was returned.</p>

<p>Where by avlieles for the sale ofland the plaintiff* was to give a lawful deed of conveyance, and the defendant was to procure a commissioner’s deed to be made to the plaintiff for the same: the commissioner’s deed was made to the defendant who never conveyed (o the plaintiff: held, that the plaintiff could not recover the consideration money without making or offering to the defendant a deed of conveyance.</p> <p>By a lawful deed of conveyance in an agreement, may be fairly understood a-, deed conveying a lawful or a good title.</p> <p>When the plaintiff covenants to make a lawful title be is bound to produce his title to the de-, fendant, and offer himself < ready to execute a deed.</p>

In Error. ERROR to the Common Pleas of Beaver county. This was a special action on the case brought by Hoops and Taylor, against .John L. Glaser, on a written agreement, by which the defendant engaged to pay the plaintiff 5,500 dollars, in consideration of sundry works to be done, and buildings to be erected, by the defendant, for him. The plaintiff offered in evidence, the agreement on which the action is founded, signed with the name of the defendant.

<p>Jl conveys land to B, his son-in-law, in fee, subject to 'the following ‘restrictions, i viz. that B is not to sell the same during . the natural life of A, but.if JL sells his land, , then B is at liberty to sell : and convey: and if Ü should ’ die before A't • or before A sells his land, L then B is to , leave the same to his wife, or her lawful issue : hut if A should sell his land before the death of B9 or A should <Jie before JB, then B may bequeath or sell the same as he chooses. B conveys the land by different conveyances, at different times, and A dies before B. B’s conveyance, held good.</p> <p>The estate of B is an unlimited estate, to which the doctrine of powers is not applicable.</p> <p>Jf a person conveys land to which he has no title, but afterwards acquires title, his heirs are es-topped. ...</p> <p>... A general restriction of conveying after a grant in fee, is void: but a partial one, such as to a par- ¿ ticular person, or for a limited time, is good : and such time may be during the life of any person if.£ existcncej-at the time of making the grant, Queiy. Whether it can he for a longer time ?</p>

<p>A settlement of the accounts of executors in the Orphan’s Court, made after the commencement of an action against them tor a legacy,is not conclusive In such action.</p> <p>Query,Whether such settlement would have been conclusive, if it had been made before the commencement of the action.</p>

In Error. ERROR to the Common Pleas oFFranklin county, in an ejectment brought by William Duffield and Rebecca his wife against Joseph and Margaret Wallace. The errors assigned in this case were in the charge of the Court of Common Pleas, which was filed and placed on the record at the request of the defendant below; agreeably to the provision of the act of assembly.

In Error. ERROR to the Common Pleas of Franklin county, in a suit brought to April Term, 1809. Jamieson, the plaintiff below, brought an action against Spear, the defendant, in which he claimed a balance of upwards of 400 dollars, for work, labour, and services, principally for making coal for the defendant’s ironworks.*' The cause was submitted to arbitrators, under the compulsory arbitration act, and a report made in favour of the plaintiff for 100 dollars.

In Error. ERROR to the Common Pleas of Huntingdon county, in ejectment. James Taylor, the plaintiff in error, was also plaintiff below. He claimed the land in contest under George Woods deceased, in whom title was -shewn under a warrant and survey. George Woods made his last will and testament and appointed John M'-Dóxoell, John • Anderson, ’ and ' Henry Woods, his executors with power to them ór the survivors of them to sell his lands.

In Error. ERROR to the Common Pleas of Huntingdon county. This was an action brought at April*Term, 1810, by the Reverend Matthew Stevens against Robert Riddle, and thirty-one others, to recover on a written contract for services performed by the plaintiff as minister of the congregation of Shaver's creek. The defendants were signers of a writing known in the Presbyterian church by the name of a call.

<p>A.and B. were administrators of C. B. died: and administration to his estate was taken out and bond given. A. settled Iiis account, and was charged with the whole personal estate: hut by report of auditors, B. appeared accountable for a part. Held, that if A, bring suit on such administration bond and die, the name of the administi ator de bonis non of C. cannot be substituted as plaintiff — it shrfuld be A*s administrator.</p>

In Error. ERROR to the Court of Oyer an.d Terminer of Bedford county. David Lewis was indicted and convicted of the crime- of uttering, publishing, and paying to a certain Jacob S. Bossier, a counterfeited bank note of the Hagerstown bank, in the state of Maryland, knowing the same to be counterfeited, with an intent to defraud the said-Bossier, and to his great damage.

CASE stated for the opinion of the Court. By the last will and testament of Phcebe Shoemaker, deceased, dated the 2d August, 1788, and by a deed of trust from Benjamin Shoemaker and Elizabeth his wife, to John Reynell, bearing date the 31st October, A. D. 1765, Charles Shoemaker, “ was vest- “ ed with, and entitled to the remainder of one-eighth of all the real estate in the said deed mentioned after the life “ estate thereby given to his mother, Elizabeth Shoemaker, “ shall…

<p>s < j i A deputy surveyor without a special authority cannot go beyond the known lines of his district to make a survey.</p> <p>But a survey made by a preceding deputy surveyor on a warrant directed to his predecessor in the same district, may be supported by the uniform practice in such cases.</p> <p>A survey adopted by the land office* though not made by the regular officer, may be read in evidence.</p> <p>The 15th section of the act of 8th April, 1785, providing,that 6< a deputy surveyor shall not go out of his proper district to make a survey; and every survey ( made by any deputy sur- * veyor, without . his proper district, shall be void and of no effect,” does not apply to the lands ip the old purchase.</p> <p>Query, Whether a special deputation by the surveyor general, to make a survey out of the deputy’s proper district is valid ?</p> <p>If such deputation is Valid, the act being merely ministerial, may be done by the chief clerk,of the surveyor general. .</p> <p>But a special deputation made by the surveyor general pending a caveat, withoutthe order of the hoard of property, is unjustifiable.</p>