Volume 2 — United States Reports

THESE were Appeals from the Admiralty Court of Pennsylvania, where the Ship had been acquitted and the Cargo condemned. the opinion and judgment of the Court (comprising a statement of all the facts and documents material to the case) were delivered by Cyrus Griffin, the presiding Commissioner, in the following terms:

On motion of Wilson, for the Appellants, a rule had been granted in September Session last, to shew cause, why there should not be a rehearing in there Appeals: 1st, because the decree had erred in fact; and 2d. because there had been a discovery of material testimony since it was pronounced: And, it was argued on the 26th December, 1781, by Morris, in support of the rule, and by Serjeant and Wilcocks, in opposition to it.

THIS was an appeal from the Admiralty of the State of Massachusetts-bay, where the Brig and her cargo had been acquitted. The case was argued on the 28th, 29th and 30th of January, and, on the 5th February 1782, the definitive sentence of the court was pronounced by PACA and GRIFFIN, the presiding commissioners, in the following terms:

<p>This was an appeal from the a-dmiralty of Pennsylvania [Case No. S,970], and after argument, Paca and Griffin, the presiding commissioners, delivered the following sentence.</p>

ON motion of the Appellant’s Counsel, before an appearance filed on behalf of the Appellee, stating that the prize Schooner was in a perishing condition, it was ordered,

THIS was an appeal from the Admiralty of the State of Rhode Island, where the Schooner had been condemned as prize; and the record was submitted to the decision of the Court, without argument. On the 24th of May, 1784, GRIFFIN, READ, and LOWELL, the presiding Commissioners, delivered the following judgment:

THIS case now came before the Court, on a petition, that the appeal should be sustained: but GRIFFIN, READ, and LOWELL, Commissioners, rejected the application in the following terms.

<p>A PETITION for sustaining an appeal, with testimony in support of the allegations contained in the petition, being filed, a rule was granted to shew cause, why the appeal should not be sustained. The case was argued, on the 1st of May, and on the 3d of May, Griffin, Read and Lowell,</p>

LOYER, an Insolvent Debtor, after his insolvency, deposited with the plaintiff an Atlas, to be sold, and the defendant purchased it at Boinod's store. Discovering that the Atlas had belonged to Loyer, the defendant, who was one of his creditors, refused to pay for it to the plaintiff, insisting that he had a right to set-off his debt against the price.

THE Plaintiff had taken out a subpoena, returnable to December term last, for two witneffes, who lived in Montgomery County; but as they did not then appear, an attachment, directed to the Sheriff of Montgomery County, was issued, returnable to the succeeding March- term; when, likewise, default was made in the appearance of the witneffes; and the caufe was continued on a rule for trial at the next term or Non Pros.

<p>THIS was an action of debt, to recover a legacy of £150, which Samuel Inglis had bequeathed to his brother George Inglis, the nominal Plaintiff, by his last will and testament, bearing date the 12th of August 1781. The defendants pleaded 1st. Payment; 2d. Nil debent.</p> <p>The circumstances of the case were these: The testator died in the beginning of Sept. 1783; and George Inglis, being in an embarrassed situation, obtained a friendly loan from Mr. Coxe, of 100 dollars, and assigned his legacy under his brother’s will to that gentleman on the 5th of April 1784, in trust, that Mr. Coxe should reimburse himself, and pay over the balance to the legatee; who acknowledged, at the time of the transaction, that there was some difficulty in getting the money from the executors. Accordingly, when Mr. Coxe applied a few days afterwards to one of the executors, in behalf of George Inglis, some doubts were expressed to him, whether the legacy would be paid at all; as G. Inglis was considerably indebted to the estate of the testator, and other persons lately concerned with him in trade; but upon Mr. Coxe’s disclosing the nature of his bond, and of the assignment which he had taken to indemnify himself, the executor, in terms of great caution and expressly for the family honor, promised to pay as much as would satisfy Mr. Coxe’s claim; which promise was punctually performed at the end of the year from the testator’s death, allowed, either by the operation of the law, or prescribed according to the provisions of the will, for the payment of legacies. It appeared, likewise, that on the 26th of April 1784, G. Inglis, having bargained for the purchase of certain goods from Reede & Forde, in payment of the value amounting to £112 4s. 6d. executed another assignment to them for the residue of the legacy in question; and, on the 4th of January 1788, Mr. Coxe, by an instrument, reciting the debt originally due to him, the legacy bequeathed to G. Inglis, the first mentioned assignment and the motives on which it was made, the receipt of £37 IOS. from the executors, and the residuary assignment last mentioned, transferred the unfatisfied interest in the legacy to Reede & Forde. Mr. Coxe had not however communicated to Reede & Forde the obstacles suggested by the executors, as to the assignment of the legacy, before the execution of the residuary assignment to them; nor, indeed, was there any evidence that they were apprised of that circumstance, ’till they applied to Mr. Coxe to institute the present suit, when he mentioned it to Forde.</p> <p>But, in opposition to the claim of Reede & Forde, under their assignment, it was shewn, that G. Inglis, was previously indebted to the house of Inglis & Long, in which the testator was concerned, and that he was also considerably indebted in partnership to the house of Willing & Morris, surviving partners of Samuel Inglis. Being, however, at the same time entitled by an article of agreement to a share in the commission, on the assignments of goods from Jamaica to Samuel Inglis & Co. he applied to them in September 1783, for the amount due to him out of that fund; but, at first they, refused to pay it to him, in any other way, than by carrying it to the credit of his account; though, afterwards, (in December 1783) on a representation of his distresses, as well in conversation as in letters, they advanced him the money. In the letters which he wrote upon the occassion (dated the 20th of October and the 5th of November 1783) he mingled, with the language of misfortune and complaint, an overture of transferring his claim to the legacy in satisfaction of the debt, to Willing & Morris, as surviving partners of Samuel Inglis & Co; provided his share of the Jamaica commission was paid to him; saying in the first letter “that he would chearfully assign the legacy;” and in the second letter “that he would assign it;" but, neither before nor after the receipt of the commissions, entering into any formal instrument of assignment.</p> <p>On these facts, the question to be tried was; whether Reede & Forde, or Willing & Morris, were entitled to the balance due on the legacy? And it was argued by Levy, for the former, and by Fisber for the latter. There being two pleas; one affirmative and the other negative, a preliminary discussion arose between the counsel, as to the right of beginning; which the PRESIDENT terminated by declaring it to have been long settled, that where there are two pleas, and the proof of one of them lies upon the plaintiff, he shall always open the cause.</p> <p>In support of the claim of Reede & Forde, it was argued, that the goods had been sold to G. Inglis on the credit of the legacy, and not upon his personal credit; that the assignment was of a date prior to the delivery of the goods, to cautiously had they conducted themselves in order to avoid a contrary construction; and that the year observed for this payment did not elapse till sometime after the sale of the goods had been completed. It was remarked to have been the intention of the testator to afford a personal relief to his brother, and not to furnish a fund for the payment of his debts; from which it was concluded, that the construction necessary to the opposite claim, being to contrary to that particular intention, ought at least to be strongly supported by the general reason and justice of the case.</p> <p>But reason and justice co-operate with the testator’s intention. There was no notice either to Coxe, or to Reede & Forde, of the alledged assignment, in favor of Willing Morris; for, although it was intimated to Coxe, that there were claims subsisting against the legatee, he had no reason to expect, that an actual assignment of the legacy would ever be pretended. Notice is indeed essential to the validity and effect of an assignment; for, being an equitable transfer, it must be taken subject to every equitable circumstance. In the present case, however, there was no assignment in fact, or in law, but merely an offer to assign. It is true, that an incomplete conveyance will, in some instances, be carried into effect by a court, of equity; but the court will never exercise such a jurisdiction, in aid of a creditor, who did not trust to the particular fund, against the claim of a creditor who did. In England, a judgment creditor does not trust to the lands: and, therefore, articles made for a valuable consideration, and the money paid, will in equity bind the estate, and prevail against any judgement creditor, mesne between the articles and the conveyance 1 P. Wms. 282. But there was not even a sufficient consideration for the pretended assignment to Willing & Morris. The commissions on the Jamaica assignments had amounted to 6 or £. 700, and the balance paid to G. Inglis on 1st December 1783 amounting to £. 276, was due to him in his own right; but the debt which he had contracted with, Willing & Morris was a partnership debt; and to compel him to surrender his legacy, merely to obtain his own money; was an unconscionable act of coercion, void of any legal foundation. The credit originally given by Willing & Morris had no possible relation to the legacy; nor can it fairly be presumed that the subsequent payment was made on account of that fund; for, it is incredible that a balance of £.276 should be advanced in consideration of a legacy amounting to no more than £. 150. The question, therefore, may reasonably and justly rest on this ground, that Willing & Morris, sensible of the hardship that would be done by retaining the commissions due to G. Inglis, and affected by the distresses of their brother of their late partner, freely paid the money, without relying on any other agreements for the payment of their debt: while Reede & Forde, doubtful of the resources of G. Inglis, sold their goods to him on the credit of the legacy alone; and under these circumstances the claim of the latter must in law and equity be preferred.</p> <p>it was contended, that the offer to assign the legacy, and the payment of the commissions in consequence of it (from which latter circumstance an acceptance of the offer was inferred) amounted to a compleat contract. The reimbursement of Mr. Coxe was clearly no evasion of that contract; but merely an acknowledgment of family obligation, accompanied also with a declaration that nothing more should be paid on account of the legacy. Wherever possession goes according to an agreement the bargain shall be considered to be executed, although no papers have passed between the parties. 1 Vern. 363. and indeed the general rule is, that whatever, for a valuable considerationis covenanted to be done, shall, in equity, be looked upon as done. 3. P. Wms. 215. 1.P. Wms. 277. But Willing & Morris, besides the conclusion from these authorities, as the surviving partners of S. Inglis, might reasonably presume, that no formal assignment was necessary, since the personal estate of the testator was involved in the joint flock of the Company; and when they paid the commissions, they acquired, ipso facto, a right to retain the legacy that had been offered as an inducement for that payment.</p> <p>Nor is there a want of that notice, which will satisfy the law upon this occasion. Mr. Coxe, the first assignee, was apprised in the very origin of the transaction, that there would be some difficulty in obtaining the legacy; and the executor, to whom he applied, declared, that no more than the amount of Mr. Coxe’s debt would be paid. If notice, therefore, was necessary, it is decided, that notice to a first purchaser is binding upon all who follow him. 2 Atk. 242.</p> <p>But, it is certain, that whoever gets the verdict, an innocent person will suffer. The only question, therefore, is, whose right is the best? Where the parties are equal in equity, the priority of right furnishes a fair rule for decision; and the claim of Willing & Morris is not only founded on a greater Value in point of confidence, but on a superior title in point of date. The executors had early notice of it; they were justifiable in retaining the legacy to pay it; and the action now trying is sufficient evidence of their refusal (after being warned for that purpose) to recognize the adverse assignment.</p>

REPLEVIN.—The Defendant offered Francis Bailey, as a witness; who being sworn on his voir dire, said “that he was a judgment creditor of the defendant’s; that he expected, if the defendant recovered, to be paid, at least a part of his debt; and that he did not know that the defendant had any other property than what was involved in the Replevin, to satisfy him; but, on the contrary, he believed that his payment depended on the defendant’s recovery.” It appeared, likewise,…

THIS cause having been argued at large, upon a motion for a new trial, the facts, and arguments were recapitulated, and the opinion of the court delivered in the following terms.

<p>A MOTION in this a new trial having been made and argued in this cause, the PRESIDENT now delivered the opinion of the Court, in the following terms.</p>

THIS was an action of slander; for pronouncing the words set forth by the declaration, in the following form, aftethe general introduction and averments; respecting the plaintiff’s good fame and character: “That the defendant published, then and there, the following false, scandalous, lying, English words, of the plaintiff, in the hearing, &c. to wit, You (him the said plaintiff, meaning) have taken a false oath, before squire Rush, (meaning that the said plaintiff had…

Held: that the lien of a creditor upon the Intestate’s estate was destroyed by his taking a bond from the Administrator ; and that the Obligor’s calling himself Administrator, in the bond, was surplusage ; since he could be chargeable only in his own right. 1 Dall. Rep. 347 .

THIS was an action brought against the Sheriff of Philadelphia, for taking goods by virtue of a writ de retorno hatendo.

THIS was an action of debt to recover a legacy, under the following circumstances.

THIS was an appeal from the decision of a Justice of the Peace in an action of trespass, brought before him against a Constable, for wrongfully taking the goods of the plaintiff; and in which judgment had been given for £9. 18. submitted the case to the Court, without argument, upon this single question, whether a Justice of the Peace has jurisdiction in actions of trespass, for taking goods ?

FOREIGN attachment in case to September Term, 1785. The plaintiff in this cause having died since judgment was entered, Wilcocks obtained a rule that John Ashley and Thomas Stewardson, his administrators, shew cause why the judgment should not be set aside, and the attachment dissolved.

THIS action was brought to recover a debt exceeding £10, but, upon being referred, the debt was reduced by a set off, and the report of the referees was for no more than £8. As the plaintiff had not previously filed an affidavit of his belief, that the sum due exceeded £ 10, (agreeably to the provision of the 13th section of the act of the 1st March, 1745.) Bankson, contended, that he was entitled to recover costs. 1 Vol. Dall. Edit. p. 308. 2 Vol. p. 364.

Held: which declared the rents of the estate sufficient to pay the debt in seven years : but in the return to the Fi. Fa. it was stated, that the defendant had only a life estate in the premises. 1 State Laws. p. 6. 49. 50.

THIS was a certiorari to remove the judgment given in this case by Justice Wharton. On a motion made by Serjeant to reverse the judgment, it appeared that thatcher, the present defendant, had originally sued Sharpe, the plaintiff, before Justice Coates, to recover a debt; that Sharpe offered to make a set off, for water-money, that is, a charge for Thatcher’s drawing water at his pump; but that Justice Coates refused to admit it, and gave judgment for the debt demanded.

THIS was an action against the indorsor of a promissory note; in which the only defence attempted on the trial, was the want of notice, that the note had not been paid by the drawer, when it became due.

A FOREIGN attachment issued against the defendant, returnable to the June term 1790, and in the vacation after September Term, special bail was entered. At the present adjourned Court, Hallowed moved for a rule to shew cause, why the defendant should not be discharged on common bail.

THIS was an Ejectment brought by Isaac Stackhouse, against his brother Joseph Stackhouse, for 215 acres and 74 perches of land, which he claimed instead of 100 acres, under the following clause in their father’s will: “ I do give and bequeath unto my son Joseph Stackhouse, his heirs and assigns, a certain piece of land, to be taken off the east end of my plantation, joining to William Paxton’s land, to be laid out as followeth; to begin at the said Paxton’s land and the…

<p>THE plaintiff brought an action of Trover, against the defendants, for a vessel and cargo, returnable to the Common Pleas of June term, 1769. The declaration recited, that the plaintiffs were possessed of the vessel and cargo, to wit, at Philadelphia County, the 31st of March, 1762; that they casually lost them; that the said 31st of March, they came to the possession of the defendants by finding; and that nevertheless the defendants, knowing the goods to belong to the plaintiffs, did not deliver them, &c. but afterwards, on the same day and year, converted them to their own use, at Philadelphia County, &c.</p> <p>The action being removed into this Court, was referred, at April term, 1771, and the referrees reported .£2,900 to be due to the plaintiffs, subject to, the opinion of the Court, on the point of law arising from the following facts.</p> <p>The defendants, Samuel Sweet, commander of a privateer, Abraham Whipple, James Potter, and William Davis, commanders of vessels with Letters of Marque, did forcibly take on the high seas near Monte Christi, in the Island of Hispaniola, in the West-Indies, (where the vessel was lying at anchor) the ship called the Maria Francina, with her cargo, being the property of the plaintiffs, and carried her with her cargo into Rhode-Island; at which place she and her cargo were condemned as prize and fold, as appeared by the proceedings of the Court of Vice Admiralty there. But on an appeal to the Court of Lord Commissioners of appeals, they, by their final decree, reversed the sentence of condemnation, as appeared by a certificate of the proceedings of that tribunal.</p> <p>The question to be decided, on the preceding state of the case, was—whether an action at common law lies for the plaintiffs as now brought? And it was twice argued by Waln, for the defendants, and by Dickinson, for the plaintiffs.</p> <p>For the Defendants. —The Courts of Common Law have a jurisdiction over all matters of dispute, which begin on the land; but where the dispute, or cause of action, arises at sea, the Admiralty has the sole cognizance, and the Courts of Common Law have no right to interfere. Thus, if an action is brought at Common Law for a taking, it is a good bar to, plead that the taking was on the high seas; and even supporting the conversion was on land, yet that is coupled with the original taking, and draws the cognizance to the Admiralty. It is admitted, that if the plaintiffs were without a remedy expressly given by law, the Judges would provide fome remedy to regrets the injury which has been sustained : But where the law prescribes a particular mode of redress, the Judges are hot at liberty to invent and allow a new one. The legal appropriate methods of regrets in this case, are either by writ of restitution, founded on the reversal of the sentence of the Vice Admiralty of Rhode-Island; or by suit upon the stipulations which were taken in that Court. No action like the present, has ever been instituted; which, according to Littleton, is a good argument that no such action can be maintained.</p> <p>But waving, for a moment, the question of jurisdiction, the action of Trover, is not the proper action: It should be a special action on the case, setting forth all the particular circumstances of the transaction. For, in Trover three points are essential to be proved: 1ft. The plaintiff’s property; 2dly. A possession in the defendant ; and 3dly. A conversion by the defendant to his own use. Now, the plaintiff’s property was unquestionably altered; and, in law, or fact, they had no property in the vessel or cargo, at the time the writ was issued; both having been sold, as perishable goodsunder the sentence of the Court of Admiralty; and, conseqently, all the property of the plaintiffs (without which they cannot maintain Trover) was completely divested. Nor were the vessel and cargo ever converted to the use of the defendants: They seized them in the execution of their duty as officers; they pursued the legal steps to get them condemned; and while the cause was in suit, the property was in custodia legis.— But even supposing that a forcible taking might be construed into a conversion (which, however, is denied in Bundbury's Reports,) yet still the action fails; for some of the Captains, being at a distance when the seizure was made, were not parties to the force, nor, consequently, to the constructive conversion, and, therefore, ought not to have been joined as defendants.</p> <p>When, it is to be enquired, did the right to bring this action accrue? Did it accrue at the time of the capture? No: Because prize, or no prize, is only determinable in the Admiralty. Carth. 475. Comb. Did it accrue after the sentence in the Court of Admiralty of Rhode-Island? No : Because by that sentence it was adjudged that the plaintiffs had no right to the vessel, or cargo. Did it accrue after the sentence was reversed? No Because the personal action had been suspended, and must always be to. There is a great distinction between judgments vacated, and reversed by writ of Error: If vacated, the case is in statu quo; but not if they are reversed. A reversal on an appeal is similar to a reversal on a writ of Error; it does not restore matters to the state, in which they were at first; it has no retrospective operation. In this case, then, there was a suspension of action. While the sentence of the Admiralty Court of Rhode-Island was in force, the action would not lie ; and, consequently, there was an intermediate period between, the time of committing the injury complained of, and the present time, when the action was suspended; a suspension which has not and cannot be cured by any relation to the reversal of the sentence; for, a personal action once suspended is always so.</p> <p>Besides the cases already referred to, the following were cited, in the course of the argument for, the defendants :-1 Sid. 320. 367. Carth. 398. 1 Bac. Abr. 625. 2 Sand. 259. Cro. E. 685. 4 Co. 141. Comb. 444. 8 Co. 143. Moor. 753. 2 L. Raym. 925. 1 Lev. 243. 95. Raft. 303. Hob. 10. Cro. C. 173. Litt. Arg. 1 Sid. 124. Vaugh. 27. Carth. 32. 2 Litt. Pr. Reg. Vin. Ev. 95. Salk. 188. Cro. F. 698. Bunb.</p> <p>For the Plaintiffs:—The admiralty has not the sole power of determining any injury whatever, arising on the high sea : Its authority is merely derivative, from the sufferance and permission of the Court of common law, whole jurisdiction is unbounded; and includes an original right to determine, matters arising on the high-sea ; nor does the allowance made to the Admiralty, impair that jurisdiction. 3 Bl. C. 87. Ld. Raym. 272. Thus though the Admiralty is permitted to determine pleas for mariners wages; yet if the contract; be under seal; the cognizance belongs to the Courts of common law alone. Salk. 31.: And as the question of damages does not relate to maritime affairs, it may surely be as properly and as well determined at common law, as contracts under seal. There are innumerable authorities, to shew, that the Courts of common law maintain a constant controul over the Courts of civil law jurisdiction. They have obliged an Ecclesiastical Court to admit the proof of a testament by one witness. Salk. 547: And when the Lord Admiral stated it as a grievance, that the common law Courts encroached on the Admiralty jurisdiction, by a fiction supposing the matters to be done on land, the Judges in. their answers, take no notice of the fiction, but admit the Admiralty jurisdiction of matters arising at sea. 4 lnst. 134. 5. Ridley. 172. Zouch. 129. But the truth is, that all transitory actions are triable any where. 4 lnst. 140. 213. If a man cuts trees in Ireland, and then goes into England, Trover lies against him. The action would appear to be local in such a case, yet such is the effect of the law’s desire that redress is given every where. 9 Mod. 322. Salk. 290. Cro. Car. 242. The adverse counsel, indeed, has not been able to discover any thing like a similar plea to the jurisdiction, except in the Statham case, 4 Inst. 141; which, however, is not a plea to the jurisdiction; but al plea in bar; a plea in jurisdiction; but a plea in bar; a plea in jurisdiction of the trespass and in Godbolt 386. it appears that the Statham case was considered as proving, that the Courts of common law had jurisdiction of matters arising at sea. In the instance of a Spaniard having taken an English vessel, which was retaken before the Spaniard got into port, the common law would not concede jurisdiction to the Admiralty; and granted a prohibition, because the property might be brought in question. 2 Brownl. 11. 29. Carth. 367. So in an action of trespass, the defendant pleaded a capture and condemnation in the Admiralty; but the Court gave judgment for the plaintiff, because the defendant did not shew what was the cause of the capture. Show. 6. 7. Prize, or no prize, is not the question: That question has been determined already; and if the Courts of common law will pay a regard to the sentence of condemnation in a Court of Admiralty, when that sentence is reversed, they ought equally to respect the decree of reversal.</p> <p>But the Court can only be desirous to ascertain that the present action is well brought. Detinue and Replevin are a actions in affirmance of property; but in Trespass and Trover, on the contrary, the Plaintiff waves the property, and demands nothing more than damages. Sid. 171. Cro. J. 50. Trover is never intended to recover the specific article. It lies, therefore, for money not in a bag, though Detinue cannot be brought in such case; Noy’s Rep. 12. Cro. C. 89. 1 Roll. Abr. 5. pl. 1. and if the nature of the thing is altered it is evidence of the conversion; but it is not good evidence in Detinue, where the demand of the thing is in specie, and where no conversion is alledged. Glib. L. E. 261. There are cases, indeed, in which Detinue could afford no adequate remedy; as in the case of drawing out part of the wine out of a pipe, and filling it up with water. 1 Stra. 576. A forcible taking is, likewise, evidence of a conversion. Gilb. L. E. 264. Cro. E. 824. But while, the sentence of condemnation was in force neither Tresspass nor Trover would lie. Raym. 336.</p> <p>It is, likewise, to be considered, that though a sale under the sentence of a Court of Admiralty, like a sale in market overt, alters the property; yet in both cases, the wrong-doer remains liable, or he would be suffered to take advantage of his own wrong: And even after a sale has been made, if the goods come again into the possession of the original owner, his right of property will revive. 2 Inst. 713. There are, however, many instances of pleading a sale in market overt, by the innocent purchaser, but not a single instance of such pleading in the case of the wrong-doer.</p> <p>From the sentence of condemnation, therefore, to the sentence of reversal, it is but one transaction; and the issue of it places the parties in statu quo. A Court of Admiralty is not a Court of Record; and, consequently, a writ of Error will not lie upon its decrees: But this does not justify the distinction between judgments vacated and reversed; and the reversal in this case is similar to vacating. See. 4 Inst. 340. 8 Co. 135. 5 Co. 76. Salk. 32. That a relation will make a nullity between the parties themselves, but not as to strangers, is a common rule. L. Baym. 521. The whole doctrine of relations, indeed, is favourable to the plaintiffs; 18 Vin. 293. 291. Stra. 996. Burr. 20. And, correctly speaking, their property has never been in suspension, but in custodia legis.</p>

<p>THE defendant was indicted for High-Treason, in levying war, &c. by joining the armies of the King of Great Britain.</p> <p>On the trial, the Attorney General offered to give the confession of the party in evidence made at the time of his arraignment; but Ingerfoll objected, that a confession could only be admitted to be given in evidence by way of corroboration, and that, therefore, an over act should be first proved. Fost. 10. 240.</p> <p>contended, that the confession proved by two witnesses was of itself sufficient; but that, independent of that position, it was not necessary to prove the overt act, before the admission of the confession; and he referred to 5 Bac. Abr. 152.</p>

THIS was an indictment for misprision of Treason, in the defendant’s speaking the following words—“ that he had lived six years in London, and nine years in Ireland; and never lived happier in his life, than he had done under the English government; and that the King of England is our King, and will be yours.” The words proved, by the evidence on the trial, to have been spoken were, that “Weedle said he had lived six years in England, and nine in Ireland, and that he lived…

THE defendant being out-lawed for robbery; and afterward apprehended, was brought up for judgment ; but, denying that he was the same. Robert Steele, who was mentioned in the outlawry, an issue was joined by the Attorney General to try the identity.

EJECTMENT. In the course of the trial of this cause, the following points were ruled. 1.

THISS cause being marked for trial, the defendant moved to postpone it, upon an affidavit, stating, " that he took out a subpoena three weeks ago, as as the time for holding the Court was known, and immediately employed one Rabb to serve it on witness, who lived at a distance; that he had, likewise lent, by the messenger, a letter to his Brother, requesting him to fee that the subpoena was served, and the witness expedited, in case of any accident to Rabb; that the witness…

IN this cause, it appeared that a devise had been made of certain premises to A, provided, if he aliens it to any other person than his brother’s children, he should pay one fourth part of the purchase money to the testator’s residuary legatee. The present ejectment was depending between the devisee, and one claiming paramount to the devise; and the residuary legatee, was offered as a witness on behalf of the plaintiff.

THE defendant was tenant for years of the premises, for which the ejectment was brought, and one Courtney claimed the fee. The cause was not included in the general distringas which had issued for trials, at this Court of Nisi Prius; but a special distringas afterwards came up for it. Neither the defendant, nor Courtney, however, had received express or implied notice of trial, from the sheriff, or any other person: And, therefore, a motion to bring it on was refused.

IN this cause articles of agreement, for the sale of a house and lot in Germantown, were offered in evidence as a deed, under the following circumstances. The articles purported to be for the sale of a house and five acres of land, for the consideration of £1200, payable, £700 in cash, and remainder in bonds.

THIS was an action of Trespass vi et armis for cutting the plaintiff’s trees; to which the defendant pleaded non cul. with leave to justify, &c. The title to the premises was the subject of controversy; and the Chief Justice delivered the following charge to the Jury.

Assumpsit for goods sold and delivered. Pleas, non assumpsit, payment, &c. The plaintiffs, having proved the contract, were called on to produce their Letters Testamentary; but the Counsel insisted, that although they had them, they were not bound to produce them on the present issue.

THIS was an action upon a bond, in which the defendant had joined as a surety for Mark Bird. Sometime after the bond was given, Bird delivered to the plaintiff certain bills of exchange; which, as appeared by an indorsement on the bond, were to be credited in part payment, when paid. (a.) For several years no suit was instituted on the bond, and the circumstances of Bird became greatly embarrassed.

THIS was a Scire Facias, on a mortgage given on the 4th December, 1773, for securing the payment of £16,000, sterling, with interest.

THIS cause being marked for trial, it was continued by the plaintiff; whereupon the defendant’s counsel moved for a rule to try at the next term, or non pros. This, however, was opposed, the plaintiff's counsel alledging, that there was no default on his part, as the procrastination arose, in fact, from tire absence of a material witness, and the late arrival of a record from New-Jersey, which was so imperfectly exemplified, that it could not be offered in evidence.

The defendant had been appointed a commissioner by the Executive Council, to explore the navigable waters of the state ; and on account of his absence upon that service, Lewis had moved, at the preceding term, and now moved again, to postpone the trial. The Attorney General observed, that the appellant was not in duress, and might, if be pleased, attend.

ON a Capias returnable to the present term, Lewis this day moved for a rule to shew the plaintiff's cause of action, and why the defendant should not be discharged on common bail; offering, at the same time, to file an agreement, that the question might be heard before a single judge at his chambers. objected, that this being the last day of the term, the motion was out of season.

ISSUE had been joined in this cause, and the jury were at the bar ready to be qualified for trying it, when Serjeant moved for leave to retract his plea, and to enter judgment by non sum informatus. Rawle and Du Ponceau, for the plaintiff, opposed the motion : And Lewis, as amicus curiæ, observing that the question was of general importance, hoped that the Court would take this opportunity of correcting, what he considered to be an unreasonable and unwarrantable practice.

DALLAS moved for a special Court to try various actions in which Mr. Holker was defendant, jointly with Duer and Parker; but it was objected by Lewis, that the reason of the act of Assembly, for granting special Courts, did not apply to cases, where there were partners, who could remain, during the usual course of proceeding, to defend the causes, and who did not join in the application.

LEAVE having been granted; on the motion of Serjeant, to file an information against the defendant, one of the Justices of the Peace for Chester County, it became a question, whether the information should be drawn, filed and prosecuted by the Attorney General, or by the party at whose instance it was awarded. objected, that it is not the duty of the Attorney General to draw and file this information.

THIS was a Scire Facias against the defendants as garnishees of Waldo, against whom a Foreign Attachment had been issued. On the trial it was ruled

ON the return to a Certiorari, issued to remove the record of the proceedings that were had in this case, before Justices Mc Knight and Todd, it appeared that the defendant, having been tried by a Regimental Court Martial, for a breach of the rules of discipline, was fined to the value of ten days labour, (£.1 15.) that on an application made by the plaintiff, who acted as clerk of the company, to the Justices; they issued a summons to the defendant; and that, on the return…

with 17s costs: 30s of which was money said defendant sued plaintiffs for, before Daniel Griffith, Esq. on account of John Ralston, Esq. and self, which thing he had no orders from us to do , and the remainder 8s. being the costs the plaintiffs paid on said action.

As cause for reversing the judgment, Levy shewed, by the Defendant’s affidavit, that the debt had been proved before the Justice by the Plaintiff’s oath alone. Howell objected, that this was not sufficient, as the Plaintiff might have sworn to his books ; and, at all events, the exception to the judgment cannot be supported by the mere shewing of the Defendant’s affidavit.

THE Plaintiff was indorsee of a Note, which was drawn by Gheir, in favor of the Defendant, William Morris. Soon after the present action was brought, the Defendant became bankrupt ; and another suit was instituted on the same note against Gheir, the drawer, in which judgment had been obtained for the debt and costs.

ON the trial of this cause, before Judge Bryan, at Nisi Prius, in Cumberland, in November 1790, the Plaintiff offered in evidence a deed, and to prove its execution by the hand writing of one of the witnesses, who was dead. The other witness was said to be dead also ; and, to prove this, they offered the Plaintiff himself, to testify that the witness had formerly lived in Philadelphia, that he had made enquiries for him, and heard he was dead.

<p>THIS was an action of debt in the debet et detinet, for £4000 sterling, equal to £. 6,666. 13. 8. currency, brought in the name of the commonwealth for the use of Lewis Lanoix, against James Lacaze, Michael Mallet, and John Ross, upon a writing signed by the defendants, dated the 4th of November 1783, and taken in the Court of Admiralty of Pennsylvania, in the nature of a caution, or stipulation. The information (which states the whole case) was in the following words:</p> <p>“ Philadelphia County ff.</p> <p>James Lacaze, Michael Mallet and John Ross, all late of the city of Philadelphia in the said county, merchants, were summoned to answer the commonwealth of Pennsylvania in a plea, that they render to the said commonwealth for the use of Lewis Lanoix, the sum of six thousand six hundred and sixty-six pounds thirteen shillings and eight pence, which to the said commonwealth they owe and unjustly detain &c. And thereupon William Bradford Jun. Attorney General of the said commonwealth, on behalf of the said commonwealth, giveth the Court here to understand and be informed, that whereas on the twenty-fourth day of October, in the year of our Lord 1783, the said James Lacaze and Michael Mallet exhibited their bill to the honorable Francis Hopkinson Esq. Judge of the Court of Admiralty for the state of Pennsylvania, setting forth, that by the process of the same court five barrels of silvercoin, amounting to five thousand two hundred and eighty-five French crowns, and one thousand five hundred and eighty dollars, then lately before saved from the wreck of the brigantine Count Durant, whereof Anthony Fourne was commander (and upon whose suit or libel in the same court depending the said process had issued) had been taken into the custody of the marshall of the said court, and that the said silver coin was the property of and did belong to Lewis Lanoix, merchant residing in Bourdeaux, and that they, the said James Lacaze and Michael Mallet, then were the agents of the said Lewis and did transact the business of the said Lewis, and that the same coin ought to be delivered into the hands of them, the said James Lacaze and Michael Mallet, in order that the same might be forthwith remitted to the said Lewis Lanoix: And whereas upon the said bill of them, the said James Lacaze and Michael Mallet, the said judge did order and decree, that the said silver coin (after deducting therefrom all costs and charges for saving the same from the wreck aforesaid and prosecuting the several claims in the said court against it) should be delivered into the hands of the said James Lacaze, and Michael Mallet, for and on account of the said Lewis Lanoix, or the right owner thereof, in order that the same might be forthwith remitted to the said Lewis, agreeably to the tenor of the said bill, they the said James Lacaze and Michael Mallet, giving caution for the performance of the trust reposed in them, agreeably to the practice and usage of the said court, and the laws of this commonwealth: In consideration whereof, the said James Lacaze and Michael Mallet and John Ross afterwards, to wit. on the fourth day of November 1783, at the said county, appeared before the said Francis Hopkinson Esq. Judge of the Court of Admiralty as aforesaid, and then and there stipulated and acknowledged themselves to owe and be indebted to the said commonwealth, in the sum of £ 4000 sterling money aforesaid (equal in value to the sum of £. 6666. 13. 8 aforesaid) to be paid to the said commonwealth, in case the said James Lacaze and Michael Mallet, did not well and faithfully perform the trust in them reposed, respecting the said silver coin, or should fail to indemnify the said Judge and the officers of the said court against all persons lawfully claiming the same, and against the claims of him the said Lewis Lanoix. And the said Attorney General further giveth the court here to understand and be informed, that the said Marshall afterwards, to wit. on the 6th day of November in the same year by virtue of the writ of the same court, (commanding him the said marshall, after deducting all costs and charges for the saving the said silver coin from the wreck aforesaid, and prosecuting the several claims against it in the said court, to pay over and deliver the remainder of the said five casks of silver coin to the said James Lacaze and Michael Mallet, to be by them remitted forthwith to the said Lewis Lanoix) did deliver and pay over to the said James Lacaze and Michael Mallet, one thousand five hundred and eighty dollars, and six thousand three hundred and thirty French crowns. And the said attorney general further faith, that the said James Lacaze and Michael Mallet, their duty in this behalf not regarding, did not well and faithfully perform the trust in them reposed, respecting the said silver coin, and did not, nor did either of them, remit the said silver coin to the said Lewis Lanoix, but the same to remit, pay, or deliver, to the said Lewis, hitherto have entirely neglected and refused. By reason whereof action hath accrued to the said commonwealth to demand and have of the said James Lacaze Michael Mallet and John Ross, the said sum of £4000 sterling money, which, on the same 3d day of November, were and still are of the value of £6666.13. 8. Nevertheless the said James Lacaze Michael Mallet and John Ross, although often requested, to wit. on the 1st day of July, in the year of our lord 1786, at the countys aforesaid, the said sum of £4000 sterling money aforesaid, or the sum of £6666. 13. 8, equal in value thereto, to the said commonwealth have not paid; but the same to pay hitherto have, and still do refuse to pay, to the damage of the said commonwealth £500: And thereof the said Attorney General informs the Court here, and prays judgment against the said James Lacaze Michael Mallet and John Ross, for the cause aforesaid.</p> <p>John Doe, j> Pledges Richard Roe, j Prosecutors.</p> <p>The defendants pleaded 1st Payment, 2d Nil debent; and the issues were tried in September term last, when a verdict was found in favor of the plaintiff, for the sum of £3,768. 9. 7. A motion was, thereupon, made in arrest of judgment, and for a new trial; which was argued in July term 1791, by Du Poneau, Coxe, Bradford, and Sergeant for the Plaintiff; and by Moylan, Mifflin, Ingersoll, Randolph, and Lewis for the Defendants.</p>

THIS was an indictment for adultery, which had been found in the Quarter Sessions, of Bucks County. The woman was married; but the indictment did not state the defendant to be so; and, indeed, the contrary was allowed, in the course of the argument, to be the fact. The question brought before, this Court was, whether in such circumstances, the defendant would be convicted and sentenced for adultery, under the act of Assembly? 1 Vol. p. 47. Dall.

THIS was an action of trespass for cutting trees. The defendant pleaded Liberum Tenementum; and the plaintiff replied Liberum Tenementum suum absque hoc, &c. The trial came on at Nisi Prius, in Montgomery County, before the Chief Justice, and Judge Shippen, on the 28th April, 1791. A preliminary question arising, who should open the causeit was decided by the Court, after argument, that the proof of the issue lay upon the defendant : and that he, therefore, ought to begin.

EJECTMENT for a heuse, in the city of Philadelphia. The Lessors of the plaintiff were assignees, under a commission of bankruptcy issued against one Christian Wirtz, of whom Doctor Charles Moore, the landlord of Cossart, had purchased.

THIS was an action of Dower, brought in Bucks County, against the defendant, who had purchased lands, sold by the sheriff under a judgment obtained on a Scire Facias on a mortgage. The mortgage was executed by the husband, but the plaintiff (his widow) was no party to it: And on the trial Justice Atlee reserved the point, whether the wife’s dower was bound by the mortgage ? contended that there was a distinction as to the effect of a sale under a Fi Fa. and a Levari Facias.

LIBEL for a divorce a mensa et thoro, charging the defendant with various acts of cruelty, and indignities, that rendered the Libellant’s situation insupportable. Defendant, protestando, &c. pleaded, that before the filing of the said libel, his wife (the libellant) had separated herself from him, and that “he had offered to receive and cohabit with her again, and use her as a good husband ought to do.” . To this plea the defendant demurred.

THE material facts, on the trial of this ejectment, appeared to be these: The defendant went into Northumberland County, in the year 1737, and made an improvement on a tract of land, which tract he afterwards exchanged with his brother; for the one in question, with a view to establish a permanent settlement for his family.

THE determination of this cause turned on the following point, which was submitted to the Court, to wit; whether goods, which, after being distrained for rent, had been replevied, and delivered to the plaintiff in replevin, could be taken in execution.

JOHN DAVIS seized of a trail of land, and having no personal estate, bequeathed several pecuniary legacies to different persons, and “all the rest and residue his estate real and personal” he gave to his son John Davis, whom he appointed Executor, and who after, the Testator’s death entered into the land.

Held: that the act of 1781 did not apply to this case. That it is an ex-post facto act, and should be construed strictly; and though the legislature may may have given certain powers to Auditors (who seem to be a Court of Chancery, and can apply themselves to the conscence of the party) yet we are not to extend it further.

Held: that as long, as the person in whom the legal interest was vested was here, the interest must run. They also urged, that the Federal Court had lately determined at New-Haven, that the treaty between Great-Britain and America secured, by its operation, the payment of interest during the whole war.

THIS was a Scire Facias on a mortgage, dated 15th August 1777, for the payment of £250. at four per cent, current money of Pennsylvania, in one year. At the time the mortgage was executed continental money was depreciated, and at three for one.

THIS was an action brought on two Bills of Exchange; and upon the trial the following facts appeared :—The defendants were the consignees of Cornelius Schenkhcuse of Amsterdam, who had sent a considerable quantity of goods to them, to be fold on his own risque and account, with orders “to remit the proceeds in good bills of exchange, or in merchandize, as they should think best.” The consignment being fold, and the defendants having remittances to make on account of other…

THIS was an action (tried at the sittings in Philadelphia in Nov. last) brought on a policy of insurance on the ship America, commanded by captain W. Keeler, from Philadelphia, to, at and from Fayal, against the defendants as underwriters.

LEVY had obtained a rule to shew cause, why the proceedings on the bail-bond should not be said, on the ground that the plaintiff had accepted the defendant’s appearance, by filing a declaration in the original action. This he contended was a waiver of bail, and cited Highm. 153. 157. Lilly P. R. 86. Barnes. 257. Rich. Prac. 132.

THIS was an action brought to recover the amount of a bond, in favor of the Testatrix, which the Executor had received.

THE defendant had, at a former term, obtained a rule to try, or non pros. At this term the defendant’s counsel, not recollecting this, desired the plaintiff to continue the cause, which he agreed to, and the Prothonotary entered a continuance accordingly : But, immediately after, discovering that he had a rule on the plaintiff, the defendant acquainted the opposite counsel with it, and gave notice that he should insist upon the rule.

THIS cause was set down for trial. Ingersoll, for the plaintiff, moved for liberty to amend the declaration, and stated it as a settled practice, even in qui tam actions. We cannot oppose the amendment, but we ask no imparlance. The plaintiff may amend at the bar, and we will go on to trial immediately.

IN order to prove certain passengers, imported by the defendant into the State, to be convicts, and to have undergone punishment, in the Spiel-House of Hamburg, in Germany, a commission to examine witnesses in that city had been taken out.

Held: “ that if the bill has been specially indorsed by the " plaintiff, he cannot recover, unless at the trial there be evidence of payment to the last indorsee.” This payment, therefore, is a material part of the plaintiffs’ case. They state it as such in their declaration ; and rightly ; for, it is clear, from the case of Brunetti and Lewin, that if it were not stated, the omission would be fatal.

WITHIN the four first days of the term, Ingersoll and Tilghman moved for a new trial on the point of a misdirection of the judge.* Serjeant objected to the rule, no notice in writing of the intended motion having been given, as is required by the rules of the Court.

THIS cause was carried down for trial, at the last Nisi Prius in Northumberland County ; but the defendant refusing to confess lease, entry, and ousler, the plaintiff was non-suited. now moved to set aside the non-suit, and to permit the cause to be tried, on an affidavit of Evan Owen, in which it was set forth, that the deponent was, in fact, landlord of the premises in dispute, and conducted the defence ; that he had no notice of the trial; that he had been obliged to…

THE circumstances of this case were as follow : Henry Banks, of Virginia, wishing to remit a sum of money to James Barr, the plaintiff, requested the defendant (then in Virginia, and to whom Banks was also indebted, in partnership with Preeson Boudoin) to take a charge of an order for £800 on Mease & Caldwell, of Philadelphia, upon the terms specified in the subjoined receipt, which the defendant gave upon the occasion. “ Received, Richmond, 21st January, 1783, of Henry…

THIS was an action, for mesne profits, after a recovery in ejectment.

THIS was an action of assumpsit, brought in the year 1791. The defendant pleaded non-assumpsit, issue was thereupon joined; and in January, 1792, the defendant obtained a rule for trial or non pros, with notice at bar. now moved that the rule be made absolute. But Morris, for the defendant, urged, that as no declaration had been filed, the cause was not at issue, according to the directions of the act of 1766.

IN Error.—An action of ejectment being referred, the referrees found for the plaintiff, with coils, but without damages. On arguing the case, Lewis contended, that this was bad, damages being essential to the award of costs. It is so, even in ejectment, at this day. 3 Bl. Com. Say. Law. Costs. 4. 2 Stra. 1051.

A COMMISSION was issued, on the part of the defendant, and various interrogatories filed, designed to be put to different witnesses. The return of the commission was signed by all the commissioners, and it appeared that the plaintiff was present at the taking of the depositions; but, to certain of the interrogatories no answers were returned by some of the witnesses, and those which were answered by one witness, were not answered by others.

THE defendant was sued, as indorsor of a promissory note, drawn by S. Sidman, on the 10th February, 1785, payable in. forty-five days. Notice was given to Sidman on the day it became due, and to M‘Knight four or five days after; which the defendant now contended was too late.

Held: that these judgments in the Supreme court did not bind lands generally; and it has hot been usual for persons living in the country, to apply to the Prot honotary of this court for Lists of judgments; which Mr. Bird, on being asked by the Court, confirmed.

Held: that an agent for seamen might recover at common law the prize money, due under the decree of the Court of Admiralty of Pennsylvania. I find from my notes, that the circumstances were as follow; The plaintiff was appointed agent for forty-three seamen, on board the private fer brig Holker, to receive their prize money.

THIS was an action for Seamen's wages. The Plaintiff shipped himself on board the defendant’s, ship on a voyage from Philadelphia to Havanna, from thence to Cadiz, and from Cadiz back to Philadelphia. On the ship’s arrival at Havanna, an embargo was laid, and the ship detained a considerable time.

THIS was an action of debt, on a bond dated the 1st of May 1786; conditioned for the payment of £1000, on or before the 1st. of Nov. ; and the defendant pleaded payment, with leave to give the special matter in evidence. The defence set up on the trial was, that it had been agreed by the parties, that the bond should be void, unless.

THIS was an action of covenant on articles of agreement, dated 22d January, 1779; by which the plaintiff sold to the defendant a plantation, and the defendant covenanted to pay £500 immediately, and £500 in annual instalments. The first payment was made, and bonds were given for the residue of the money. The question now principally agitated, was—whether the money was to be reduced by the scale of depreciation, or to he paid in gold and silver?

Held: that the consequences of a prize cause were not cognizable in a Common Law Court, although the question of prize or not, was determined and at rest. The Judges " say, as this is a suit to carry into execution a decree of a Court of Admiralty, it is a thing which we have no authority to do.” This is an action of the same kind.

THIS was a motion for new trial, founded on a declaration made by the Court, while the merits were before the Jury, that if the counsel for the defendants could shew, that, on the evidence given, the action was not, maintainable, a new trial should be granted.

THIS cause was set down for trial; but was afterwards continued by the plaintiff. The defendant’s attorney, prayed a rule might be granted for security for costs, the plaintiff residing in New-York. Moylan, objected, that the motion came too late, after the cause had been marked for trial.

AN award was made that " an order for £550, should be given on (not mentioning the name) in whose hands, it is said, that sum was deposited by certain defendants in a former action, for the use of the plaintiff. Risberg, the bail of those defendants, undertook in writing, to give an order for the money, to be received in New-Providence ; not mentioning by whom.

THIS was a Scieri Facias against the defendant, as garnishee of twenty-one hogsheads of flax-feed, the property of James Elliot. The defence was, that the defendant being a captain of a ship, had received the flax-feed, and signed a bill of lading, engaging to deliver the flax-feed to a consignee in Europe.

THE defendant’s counsel produced a certificate from a physician, stating that the defendant had been dangerously ill for three weeks last past; and thereupon moved to put off the trial. But the Court held this to be no good cause for putting off the trial. And,

CHARLES KNIGHT, father of the plaintiff, put out £200 at interest, to be divided among his four children, at their mother’s death. The defendant was one of the trustees named in the bond, and had received the money on the widow’s decease. The only question was, whether interest should be paid from the time he received it.

RICHARD BUDDEN devises, after payment of debts, a house to his wife for life, remainder to James and Susanna, his children. The widow and children afterwards mortgage this property, to the plaintiff, for the proper debt of James. The plaintiff sues out a scieri facias, and, after sale of the house, and satisfaction of the mortgage monies, the surplus was brought into Court, to be disposed of as the Court should direct.

THIS was a special assumpsit, on the part of the defendant, to make up the depreciation of a certain sum of money, paid by him to the plaintiff's agent, if the plaintiff refused to receive it as specie. Upon a reference, the referrees awarded only four pounds ; and, as the cause had been removed by the defendant, it then became a question, whether the plaintiff should recover double, or any other, costs.

THE defendant had pleaded in abatement, that the plaintiff was a feme covert: And now Howell, for the plaintiff, moved to strike off the plea, not being supported by any affidavit, as the rules of the Court require. Todd contended that he could file the affidavit instanter, if the Court should deem it necessary in this case ; but Howell said it was too late, and that a dilatory plea could not be recurred to, at this stage of the proceedings.

THE plaintiff laid his damages at £500 ; but the verdict and judgment nisi were for £672 13 2. The defendant hereupon took out a writ of error, and next day the plaintiff moved for leave to enter a remittitur of the surplus damages, upon the authority of H. Blacks. Rep. 643. 1 Dall. Rep. 134. Todd opposed it.

THIS was a seigned issue ; upon which this single question was submited for the opinion of the Court,—whether the power of appointing the Clerk of the Mayor’s Court of Philadelphia, was vested in the Governor, or the Corporation of the city ? The case was argued at the last Term by the Attorney General for the State, and by E. Tilghman, for the Corporation. contended, that the Clerk of the Mayor's Court is an officer of the Commonwealth. In the act of incorporation (2 vol.

THE defendant was indicted for a libel; and at the last Nisi Prius, retracted his plea and submitted, protesting his innocence, &c. He now appeared to receive judgment, and his own affidavit was offered to be read in mitigation of the fine.

JAMES M'CONNAUGHY mortgaged to the plaintiff's Testator, a certain plantation in Chester County; and then devised all his estate, consisting of many other tracts of land, to his mother Jannet. Jannet afterwards died, having devised the the tract in mortgage to her niece Mrs. Darlington, and the residue of her estate to her Executors.

INGERSOLL moved for the confirmation of the decree of the Orphans’ Court of Northumberland, given the 26th March, 1792, from which (as it appeared by a certificate he produced) an appeal had been entered. But the Court, finding that there was no copy of the proceedings lodged with the prothonotary, refused to receive the motion : And by

THIS was an action of debt on a bond, dated the 13th March, 1787. The bond recited that the obligee, Paul Sheredine, had given a letter of attorney to the obligor, Martin Gaul, to recover a legacy due to him in Germany ; and the condition was, that the obligor should, on or before the 1st January, 1789, render to the obligee a true account of, and pay over, all monies received by virtue of the power.

THIS cause being referred in the Common Pleas, the referrees made report into office ; and afterwards the plaintiff removed the cause by certiorari into this Court. But Ingersoll, on behalf of the defendant, now moved for a Procedendo ; alledging that in a case of Pigot v. Young, it had been decided, that a cause could not be removed after the arbitrators, or referees, had entered on the business submitted, or referred, to them.

HEATLY offered to read the return, on a commission to examine witnesses, in which it was certified, that the witnesses were duly sworn by a Justice of the Peace, and examined by the commissioners. Serjeant, objected, that the commissioners themselves should have administered the oath ; or that if administered by a Justice of the Peace, he should himself have certified the fact. But,

THIS was an action on a bill of exchange, against the drawer. The bill was dated the 29th of September, 1781 and was drawn on the defendant’s tenant for £50, “ being my part of the rent of Black Rock estate.” It was presented for acceptance and refused, some time previously to the 19th of November, 1781 ; but it was not protested ’till the 5th of August 1782.

THIS was an action on the case for goods sold and delivered ; and the only question agitated upon the trial, was whether the plaintiff was entitled to recover interest? It was proved, that at the time of the sale, the defendant was informed, that it was the course of the trade to give fix months credit ; or, if cash was paid, to discount five per cent; but that punctuality, and not interest, was the object of the plaintiffs.

Held: that the captain cannot hypothecate, while there are goods of his own, or of his owner on board. Now if there was no authority to hypothecate the vessel, how can it be pretended that he can make his owners personally liable ? Great mischiefs would ensue if the master had such a power. Upon this ground, therefore, the action must fail.

IN this action, which was brought on a Policy of Insurance subscribed the 8th of Sept; 1786, the plaintiff declared for a total loss, and offered in evidence the protest of the captain, made at Alexandria, on the 22d Sept. but it appearing that the captain, who had been taken up at sea from the wreck, had arrived at Newbury-Port in New-England on the 12th of August, and passed through Philadelphia on his way to Alexandria, before he made his protest, the evidence was…

THIS was an action brought to recover a child’s share of the intestate’s estate. The defendant gave in evidence a receipt from the guardian of the child, for "four, thousand Continental I ollars” dated the 19th of February, 1780, while Continental money was a legal tender, but depreciated fifty for one.

A HABEAS CORPUS was issued to bring up the body of Benjamin, a minor, about fourteen years old, who had been bound by his guardian’s consent, to the defendant, to serve her till he should arrive to the age of fifteen. Having absconded from her service, he was committed to goal, for that cause; and a general question was made, whether an infant could be bound as a servant in Pennsylvania?

THIS cause was argued upon a cafe stated, which included the following facts. The plaintiff was heir at law for one moiety of the real estate of Margaret Henderson, who died seized of the premises in question.

IN Error. The plaintiff and defendant having some controversy about a tract of land, in Luzerne county, agreed to try the right to the possession in a summary manner, in the Court of Common Pleas, and the proceedings were drawn up, as if it had been a plaint under the landlord and tenant act.* The Jury having awarded possession to Lee, (the defendant in error,) judgment was rendered for him; and a writ of possession was issued, by virtue of which Fitzalden was turned out,…

CASE. Pleas non-assumpsit and payment. The opinion of the Judges was now delivered in this cause, the facts and principles involved in it, being stated by the Chief Justice as follows.

A FOREIGN attachment issued in the Common Pleas of Philadelphia, returnable to March Term, 1788, at the suit of the plaintiffs against Joseph Waldo, and the defendants were summoned as garnishees. Judgment being entered at the third Term, a writ of enquiry was executed, and the sum of £3,778 9 9 was found in damages.

THIS was an action on the case, for deceiving the bankrupt, in the sale of a quantity of Claret; and the question submitted for decision to the Court was,—whether such an action could be maintained by the assignee ? observed, that the bankrupt was really indebted to his client; but that in this form of action he would be deprived of the advantage of a set off; and they contended that the action would not lie. The 7 sect. of the bankrupt act (2 Vol. Dall.

ON the trial of this ejectment, the subscribing witnesses were offered to prove, that a deed, bearing date the 1st of April, 1784, was not, in fact, executed until the month of November following. It was objected, that such proof would contradict the attestation of the witnesses themfelves. 4 Burr. 2224. 2 Esp. 194.

THIS suit was instituted by the plaintiff, for the use of Moore & Johnson against Andrew Caldwell, the surviving partner of Andrew and James Caldwell. Vance, Caldwell, and Vance, had assigned to Moore & Johnson, a debt due to them from Andrew, and James Caldwell, and those assignees employed the plaintiff as their agent to recover the amount.

ON the trial of this cause, the plaintiff who was surviving partner of a Commercial House established in Dominica, offered, in evidence, a copy of entries in original books of the Company, sworn to be truly transcribed.

THE plaintiff was a citizen of, and resident in, South-Carolina, and the defendant was a citizen of, and resident in, Pennsylvania for six years before the present action (founded upon a promissory note) was commenced. The statute of limitation being pleaded, judgment was confessed for the plaintiff, subject to the opinion of the Court, whether, under the circumstances of the case, the plea in bar was sufficient?

THIS was an a action on a Policy of Insurance, upon the cargo of the Sloop Mary, William Southern master, at and from Philadelphia to Trinidad, in which the plaintiff declared against the defendant, one of the underwriters, as for a total loss.

THE question, in this case, arose upon a devise, that after the death of the Testator’s wife, certain lands should be sold, and the money divided among children; but the Will did not declare by whom the sale should be made. The land was sold, however, by the survivor of two Executors; and it was submitted for the opinion of the Court, whether that sale was good, the plaintiff’s Counsel citing the following authorities in support of it: Dyer, 371.

THE defendant advertised a ship for freight to Madeira. The plaintiff shipped flour on board; after which, and before the ship failed, a third person attached her for a debt due to him from Pintard, the owner of the vessel, for whom the defendant acted as agent. The voyage was, by this means, broken up, and the plaintiff’s flour, being relanded, was sold to a loss.

THIS was a motion for a mandamus, commanding the defendants to proceed to another election of the managers of the House of Employment. By the act of Assembly, passed the 25th of March 1782 (2 Vol. Dall.

THIS was an indictment, on the 7th section of the act supplemental to the act for the gradual abolition of slavery (2 Vol. Dall.

THIS was a writ of error to remove the proceedings in tha case of a conviction for murder, at a Court of Oyer and Terminer, and general goal delivery, held in Allegheny County. On the return of the Record the defendant assigned the General Errors, and the Attorney General replied, in nullo est erratum.

THIS cause was tried and a general verdict given for the plaintiff, on the 11th of September. On the 15th of September, Lewis made a motion, in arrest of judgment, because, a general verdict was taken, and the action, clearly, would only be maintained on one of the counts in the declaration. contended, that the motion was made too late, and cited 3 T. Rep. 623.

EJECTMENT brought by the late proprietaries for a tract of land in the County of Northampton. On the trial it was material for the lessors of the plaintiff to Chew, that a survey had been duly made and returned into the Land-Office before the 4th of July 1796, in order to establish their title to the premises, under the reservation contained in the 8th section of the act of Assembly, vesting their estates in the Commonwealth 1 Vol. Dall. Edit. p. 822.

A VERDICT having been taken for the plaintiff in this cause, subject to the opinion of the Court, the question (arising upon the same sails, set forth in the decision in the Common Pleas ant. 51.) was argued in April Term last, on a motion for a new trial, and the Judges, now delivered their opinion seriatim to the following effect.

THIS was an action on a Foreign Bill of Exchange, brought by the indorsee against the executors of the indorsor, and a verdict was given for the plaintiff. A motion having been made and argued for a new trial, on the ground that there had been no proof of notice to the deceased indorsor, that the bill was protested, and of a demand for payment on the drawer, the Chief Justice delivered the opinion of the Court.

THIS was a Scire Facias against the defendants, as garnishees of Gilbaud, Rouge & Co. French citizens, residing in the West Indies.

IT was agreed by the parties to submit this question to the Court, to wit:—Whether the Convention gave to the French Consul cognizance of all differences and suits between Frenchmen; or confined the same to the description of cases therein enumerated, or other cases not arising from transactions in the United States ?

THIS was an action of debt on a bond for £250, dated the 7th of May 1776. On the 16th of September 1778, a payment had been made of £150, in Continental money ; and the question now brought before the Court was, whether this payment should be reduced and liquidated, according to the specie value of Continental money, at the time of paying it ? For the plaintiff, it was contended, that the act of Assembly (1 Vol. Dall.

DEBT on a bond. Plea, payment, with leave &c. and issue. The counsel for the defendants had given notice, agreeably to the 39th rule of practice, that evidence to the following effect would be offered on the trial of the cause, to wit; That the bond was given for payment of the consideration money of a tract of land and mill, which the plaintiffs had sold to the defendants, reserving in the deed a right to swell and raise the water, so as not to injure the mill ; but that…

THIS was an indictment containing fix Counts, which charged the defendant, in various forms, with forging and uttering a promissory note, dated the 27th of July 1795, purporting to be a note drawn by Joseph Heister in favor of John Smith, indorsed first by John Smith, and afterwards by Jacob Morgan ; and with fraudulently conspiring with one Langford Herring to procure Jacob Morgan to indorse the note by means of a forged letter, purporting to be addressed by Joseph Heister,…

THIS was an action for money had and received, &c. brought by Ralston, as assignee of Dewhurst, a bankrupt, against the defendant, who had sold goods of the bankrupt, by virtue of an authority from him ; but, it appeared in evidence, that no money had been received by the defendant, at the time of commencing the action.

<p>IN this action a verdict had been taken for the Plaintiffs, for £2096 13s4, subject to the opinion of the Court, on a point reserved, to be argued upon a motion for a new trial. The case was this :—Job Ruston made his last Will and Testament, dated the 17th of January 1784, and thereby first, " after his just and lawful debts and funeral charges paid, he bequeathed £500. and some specific goods and chattels, to his wife. He next devised all his real estate to his eldest son Thomas in fee, provided he payed to his executors £3000, by annual installments, during seven years and a half; and directed, in case of his son’s failing to make these payments, within three months after the times limited for them respectively, that his executors shall fell and convey particular parts of his real estate; but he made no provision for the sale of the residue, consisting of a Messuage, Mill, and Tract of 325 acres of Land. He then gave to each of his children legacies in money, and also some specific legacies, which were to be in full of their respective shares of his estate: He bequeathed £100 to a charitable use, to be taken out of the remainder of his estate, before any share or dividend shall be made to his sons and daughters : And, lastly, he willed and bequeated the remainder of his estate to his five children, to be divided into ten parts, of which one part is given to his said eldest son Thomas Ruston, another to his daughter Sarah, and the remaining eight parts are given to the three younger children, in equal proportions.” Part of the testator’s real estate, devised to his son Thomas Ruston, was subject to a mortgage given to the managers of the Pennsylvania Hospital. Thomas Ruston, the devisee, had paid no part of the £3000; the lands which the Executors were empowered to sell had, consequently, been sold; but after applying the proceeds of the sale, some of the debts, and all the pecuniary legacies, remained unpaid. For the difference between the proceeds of the sale, and the £3000, the present action was brought.</p> <p>The case was argued in September term last, by Ingersoll and M'Kean, for the plaintiffs, and by E. Tilghman and Heatly, for the defendant: And two questions were made. 1st. Whether the whole of the real estate devised to the defendant Thomas Ruston, was liable for the payment of the £3000, for satisfying the testator’s debts and legacies ? 2d. Whether the defendant was bound to discharge the mortgage, on a part of the lands devised to him, out of his own funds ; or the Executors were bound to discharge it out of the testator’s personal estate ?</p> <p>On the first question the plaintiff's counsel cited 2 Vent. 357. 1 Eq. Abr. 199. pl. 10 2 Vern. 26. Bendl. Rep. 281. Dy. 348. 1 Atk. 382. 3 Bro. Ca. in Ch. 165 : And on the second question they cited, 1 Ch. Ca. 271. 1 P. Wms. 730, 1. 1 Eq. Abr. 142. pl. 7. Ibid. 143 pl. 11. 3 Woodes. 485.</p> <p>The counsel for the defendant cited, 2 Bl. Com. 119. 111. 1 Atk. 382. Shep. T. 121. Lov. on Wills 54. 1 Cha. Ca. 271.</p>

A QUESTION arose in this case, whether the defendant had given a written authority to Edward Bonsall (a Scrivener, who kept an office for the sale of lands) to dispose of the premises in question, which the lessor of the plaintiff alledged he had contracted for, and bought, under that authority. To prove that a written authority was given, but had been mislaid, the Plaintiff’s Counsel offered Edward Bonsall, as a witness:

CAPIAS. Ingersoll and Lewis had obtained a rule upon the Plaintiff to shew his cause of action, and why the defendant should not be discharged on common bail. Dallas & Du Ponceau now shewed cause. It appeared that the Plaintiff was master of the Kitty, a brig, which, together with her whole cargo, belonged to Stephen Girard, an American citizen of Philadelphia, bound on a voyage from this port to Jeremie in the Island of St. Domingo and back again.

THIS was an action upon a Promissory Note, brought by the plaintiff, claiming to be indorsee of one Vuyton, against the defendant, the drawer of the note; in which the following declaration was filed. " Philadelphia County ss.

THIS cause had been tried repeatedly in the city of Philadelphia ; but the Jury could not, in any instance, agree upon a verdict.

<p>THIS was an action of debt, on a bond which was executed upon the 29th of January 1789, by the defendant, to Peletiah Webster, the Testator, in the penal sum of £5000, with the following condition subjoined : " Whereas the said Samuel Wallis did, by his deed, duly executed under his hand and seal, bearing even date with these presents, grant, bargain and sell unto the said Peletiah Webster a certain tract of land therein described, containing 12,625 acres, and contracted to make a clear title in fee, under a patent or patents from the State of Pennsylvania, for the same: And whereas patents for the said lands have not yet been obtained : NOW KNOW YE, that the condition of the above obligation is such, that if the above bounden Samuel Wallis doth, within six months from the date hereof, well and truly obtain from the land office of the State of Pennsylvania aforesaid, good and sufficient patents for all the lands described and conveyed within the deed aforesaid, as reference being thereunto had will appear, and convey or cause them to be paid to the said Peletiah Webster, by good and sufficient deeds and assurances in the law, then the above written obligation to be void, otherwise to be and remain of full force and virtue.”</p> <p>After Oyer, the defendant pleaded performance of the condition ; and the plaintiff replied non-performance, assigning as a breach of the condition, that the defendant did not, within six months after the execution of the bond, obtain patents for the lands, and convey them, or cause them to be conveyed, to the plaintiff. On these pleadings issue was joined, the cause was tried, and a verdict was given in favor of the plaintiff, " for £5000 debt, and £1922 10 damages and costs ; subject to the opinion of the Court on the damages, which are given for interest.”</p> <p>The question before the Court was : Whether the plaintiff was entitled to recover interest upon the £5000 penalty, from the expiration of the six months allowed for the performance of the contract ? And it was argued by Ingersoll and Lewis, for the plaintiff; by Coxe and M. Levy, for the defendant.</p> <p>For the plaintiff it was insisted, that in every point of view the interest ought to be allowed, and that it was the province of the Jury to allow it by way of damages. And the Counsel illustrated, exemplified, and enforced the principle of their argument, by cases of penalties given under particular statutes ; by cases where the penalty is given in a bond for the payment of an additional sum, if the sum mentioned in the condition should not be punctually paid ; by cases where the penalty is given as a security for the performance of a collateral act ; and by cases where the penalty is considered as the fixed and ascertained damages, mutually agreed upon by the parties themselves ; in all which, it was urged, that damages had been carried beyond the penalty; and the following authorities were cited. 2 T. Rep. 388. 9. Bunb. 23. Show. Parl. Ca. 15. 16. Bull. N. P. 178. 1 Salk. 206. 1 Vent. 133. 3 Cro. C. 559. 1 Fonbl. Eq. 141. 1 Brown. Ch. 418. 2 Fonblan. 430. 1 Vent. 133. 2 Hawk. P. C. 273. Carth. 230. 3 Lev. 374. If, then, the Jury had a power to give damages at all, the interest was the most reasonable rule that could be adopted to estimate them. 2 Fonbl. Eq. 423. 1 Dom. C. L. 407. And the expiration of the six months was the proper time to compute the damages from, without regard to any demand; for, where a certain sum is payable on a certain day, a demand is not necessary to be made, or proved. Imp. Mod. Pr. 194. 202. The plaintiff might have proceeded on the covenant in the original deed, and would doubtless be then entitled to recover damages commensurate with the injury ; and the penalty is only a collateral guard to the agreement, providing a further remedy at law. 1 Fonbl. Eq. 141.</p> <p>For the defendant, it was premised, that a great contrariety of opinion appeared, in the cases on this subject; and that a rule had certainly been adopted in the Court of Chancery different from that which prevailed in the Courts of Common Law; the former allowing interest, sometimes even exceeding the penalty, but the latter always refusing it. 3 Br. Ch. Rep. 489. 496. When, however, the allowance was made, it was confined to cases of Bonds for the payment of money, where interest, by a computation on the sum mentioned in the condition, may exceed the penalty ; but the present question must be classed with the cases of fixed and ascertained damages ; and there is no instance, in such a case, of more than nominal damages being given beyond the penalty, and that merely for the purpose of entitling the party to his costs. H. Bl. Rep. 11. 1 Cases in Ch. 226. 16 Vin. 303. pl. 10. 1 Vern. 350. The penalty is the fixed and stipulated extent of the damages for not performing the contract, including all delay, vexation and interest : It may be regarded as such, without any express declaration in the instrument; and whatever is the contract of the parties must prevail; for, modus et conventio vincunt leg. H. Bl. Rep. 231. 232. In 2 Bl. Rep. 1190, there is the case of an indemnity bond, which is precisely analogous to the present bond; and the Chief Justice there declared, that as the penalty of the bond ascertained the damage by consent of parties, the plaintiff was intitled to recover no more. Equity will relieve against a penalty; but it will never go beyond it. 4 Burr. 2228. It is true, that if the plaintiff had proceeded on the original covenant, he might have recovered damages to the amount of any injury that he could prove ; but having proceeded for the penalty of the bond, which was taken by way of collateral security, he has himself chosen to make that the measure of his recovery. All the cases cited on the other side, are bonds for the payment of money ; except those arising under statutes ; and, it is not contended that in them the damages are carried beyond the penalty, where it is given to a common informer, but only where it is given to the party agrieved ; when, perhaps, the damages actually sustained, are fairly to be computed from the time the injury was done, and nothing is to be presumed from the contract of the parties. Besides the penalty, though due in strictness at the expiration of six months was only payable on demand ; the interest could, therefore, only arise from the time of actual demand ; and there was no evidence given at the trial of any demand having been made.</p> <p>was stopped by the Court:—</p>

THIS cause had been removed by writ of Error, into the High Court of Errors and Appeals, and the judgment, being there affirmed, it was remitted to this Court. On motion of Ingersoll, for the Commonwealth, it was ruled.

BY mistake the dernise had been laid in the declaration, so as to commence before the death of the person, whose death gave rise to the controversy. Ingersoll, therefore, moved for leave to amend the declaration, by rectifying this mistake:

THE plaintiff and defendant were both British subjects; the debt, for which the present action was brought, had been contracted in England and the defendant, before the suit was instituted, had obtained his certificate under a commission of bankrupt issued against him in that country. Under these circumstances, Heatly obtained a rule to shew cause why an exoneretur should not be entered on the bail piece; and in support of the rule cited 4 Term. Ref. 182. Co. Bank. Law. 497.

THIS was a summons in partition, on which the plaintiff, as tenant by the curtesy, demanded partition against the defendants, under the circumstances stated in the following declaration.

MANY actions were brought, returnable to January Term 1794, against the defendants, as Executors of Cay, the surviving partner of Clow and Gay, whose affairs were exceedingly deranged; and, on the 11nth of January 1794 (declarations having been previously filed in all the actions) rules were obtained, "that the defendants plead as of this day, or shew cause to the contrary, &c.” The declarations were filed, and the rules obtained, under a suspicion (affirmed upon oath) that…

WRIT of Error. To an action of Debt on a Bond, dated in August 1774, the defendant pleaded payment, and gave notice of a set-off.

A TEST ATUM Ca. Sa. had issued to the Sheriff of caster, upon which the party was arrested, and the money paid. But the Sheriff paid it over to the nominal, instead of the real, plaintiff, tho’ the indorsement for the use, &c. was on the writ. At the last term, Hallowell obtained a rule to return the Teft. Ca.

THIS was a feigned issue, directed by the Register, &c. of Philadelphia, to try, whether a Will dated the 27th April 1788, and republished on the 18th of October ensuing, in which the plaintiffs were named executors, was the last will of Win. Bradford, Esquire, the deceased brother of the defendant, who claimed as in a case of intestacy. In the course of the trial, the following points were ruled.

GEORGE GREENE, having petitioned for a discharge under the laws for the relief of insolvent debtors, one of his creditors was offered as a witness to prove, that several judgments, had been confessed by the petitioner, without a valuable consideration, and with a view to defraud. It was objected, that a creditor was not a competent witness; as his testimony would go to invalidate the judgments, as well as to the imprisonment of the petitioner.

JUDGMENT was entered in this cause on the 1st day of September Term, 1796; and the plaintiff issued a Testatum Fi. Fa. to Allegheny County, founded on a Fi. Fa. to the sheriff of Philadelphia County, which was made returnable on the last day of September Term 1796, but had never been actually taken out, though it was minuted on the roll. The Testatun Fi. Fa. being levied on lands, E Tilghman now moved to set the writ aside, as being founded on a Fi.

Held: that when there is a warranty of neutral property, and the condemnation is general, the decree shall be conclusive; which is, likewise, the law, when the sentence is given on the very point of the warranty. 2 Stra. 743. Skin. 593 Show. 232. T. Ray. 473. Carth. 34. Salk. 32. * M'Kean, Chief Justice.

<p>THIS action was brought to September term, 1789, by the plaintiff, as surviving partner of Cummings, to recover a debt due to the partnership. On the 4th of March 1793, the matters in dispute were referred; on the 21st of January 1795, there was a report filed, finding £165 os11. in favor of the plaintiff; and thereupon judgment nisi was entered. But, it appeared, that a Foreign Attachment had been issued, in the Philadelphia Common Pleas, returnable to March term 1793, in the name of Elizabeth Pringle, administratrix of John Pringle, against William M‘Carty, the present plaintiff, for a debt due by him in his separate, individual capacity, to the deceased intestate; and that the attachment had been served upon effects &c. in the hands of Emlen, the present defendant, who was a debtor to the partnership of M'Carty & Cummings, but did not owe any thing to M'Carty in his separate right.</p> <p>On the 24th of January 1795, E. Tilghman & Wilcocks, for the defendant, obtained a rule to shew cause, why the execution in this action, should not be stayed, until an indemnification is had against the foreign attachment of Pringle, administratrix v. M'Carty. And, after argument, upon a case, stating the preceding facts, (Ingersoll appearing for the plaintiff) the Judges delivered their opinions, seriatim, to the following effect:</p>

THIS was an action on the case, on a Policy of Insurance dated the 28th of October 1786, on the schooner John, Nathaniel Simmons master, on a voyage from Bath, or Washington, in North Carolina, to the Island of St. Thomas. It was a valued policy, in which the Plaintiff’s moiety of the Schooner was valued at £300; and the action was brought for a total loss.

and two justices of the Common Pleas for the County of Cumberland. The case had been argued in July 1789, (before the present organization of the Judiciary Department under the existing Constitution) and afterwards in October 1792, by Bradford and Ingersoll, for the appellant, and by Lewis for the appellees.

THIS was a writ of Error from the Supreme Court, founded on a bill of exceptions, taken at Nisi Prius, in Chester County, on a trial before M‘Kean, Chief Justice, and Justice Yeates. .The queftion arofe on the Will of Elizabeth Ring, who had given power to her Executors to fell lands, for payment of legacies ; andón the argument two points were made. — i ft. Whether the power to fell,' given by the Will, was in fait, for the payment of debts, or of legacies ?

Collet v. Collet, 2 U.S. (2 Dall.) 294 (C.C.D. Pa. 1792), was a Supreme Court of the United States decision that was the earliest appellate case docketed although it was never heard by the Court. Van Staphorst v. Maryland was the first case docketed with the court. West v. Barnes was the first case decided by the court.

Held: and reserved by the people to themselves. If the Legislature had passed an act declaring, that, in future, there should be no trial by Jury, would it have been obligatory ? No: It would have been void for want of jurisdiction, or constitutional extent of power. The right of trial by Jury is a fundamental law, made sacred by the Constitution, and cannot b; legislated away.

In the course of the trial the following points were ruled by the Court.

A Capias had issued in this cause against Daniel Parker, Win. Duer, and John Holker, returnable to April term 1792 ; and the Marshal then returned, Cepi Corpus as to Duer, (who gave, special bail in due time) and non sunt inventi, as to Parker and Holker.

Held: that the Pennsylvania Ac t, and not the English practice, must regulate the proceedings with respect to Juries ; and the case of a tales in trials by special Jury, though admissible at common law, might not have been adopted by the Legislature, on account of the inconveniences, which the practice tended to introduce.

Held: and duties they performed, previoufly to the Conftitution; from which the Circuit Court derived its birth. Chase, Juftice. Do you mean, Mr. Attorney, to fupport this indiftment folely at common law ? If you do, I have no difficulty upon the fubjeft : The indiftment cannot be maintained in this Court.

<p>THIS was an action brought-by the Indorfees of a Bil! of Exchange, drawn by M(Clenachan and Moore, upon George Barclay, of London, in favor of the defendants, and by them in-tlorfed in blank, to Arthur Crammond, ⅛* Co. who, likewife, in-dorfed and difeounted them with their bankers, the.prefent plaintiffs, under the following circumitances. The defendants, having opened a commercial correfpondence with Arthur Crammond Sis’ Co. of London, remitted the bill of exchange in queftioi], to be paffed to their credit, • in their general account with thofe gentlemen. The bill was noted on the face of it for non-acceptance. It was afterwards, on the 4th of Auguit,i79<), paid in ihort, on account oí Arthur Crammond Cf Co. with their blank indorfement, to the banking houfe of the plaintiffs ; but, on the 19th of the fame month, the amount Was carried out tothe credit of Arthur Crammond (sf Co. as if it had been then difeounted by the plaintiffs ; and it was faid by a witnefs examined under a commiflion, that, after this difeount, the money had been duly paid upon the drafts of Arthur Crammond ts? Co.</p> <p>The Counfel for the defendants {fated, that they propofed to fhew by evidence, that the bill of exchange was remitted on account of the defendants ; and that Arthur Crammond ⅛ Co. were invery great pecuniary embarraffments, at the time of the alledged difeount of the bill of exchange,-and had foomafterwards become bankrupt. . From thefe premifes, from the nature of the previous depofit, and, above all, from the diihonored ftate of the .bill, when it was depofited and difeounted, (which was enough to have prompted an enquiry into’the' real circumitances of the ■cafe) it was intended to argue, that the plaintiffs knew that the bill was, in fact, the property of the defendants; and that the eventual difeount was colourable and collufive, for the mere purpofe of recovering the damages, or of fecuring a pre-exifting balance due to the plaintiffs from.Arthur Crainmond ⅛ Co. who were on the eve of a public failure. > 3. 5T. Rep. 80. If the plaintiffs did know the fa£ts, they cannot be entitled to any more benefit from the poffelHon of the bills than Arthur Crammond ⅛" Co. themfelves,.</p> <p>The Counfel for the plaintiffs (who had, indeed, anticipated the defence in their opening) Rrfifted, that the general, unreilrided, nature of the indorfement, had empowered Arthur Crammond izf'Co.. to pafs the bill to whomfoever they pleafed; and that whatever'might be the imputation on them for a breach of trult, it’could not affect the plaintiffs, who had paid a .valuable confi-deration for the bill; and who ought not to be charged with col-lufion and fraud, upon {trained ‘inferences, and flight prefump-tions. Their knowledge ’ of the tranfadtions between the de-fendants jmd Arthur Crammond ⅜ Co. has not been proved’; afl'd it would be a violation of the moft important commercial principles, of thd'moil authoritative adjudica)ions, to permit fuch a defence to be made, againit the claim of an indorfee. The dif-tiiiction between reftrided indorfements, and indorfements which leave the bill to a free negotiation, has been fully efta^ blifhed; 2.Burr. 10.16. 1006. 7. and an indorfee in the latter' cafe, cannot be affeéted even by letters accompanying the bill. Rep. temp. Hardw. Nor does the reafon of the cafe in 3. T. Rep. 80. .(where the note was negbeiated after the term .of payment had elapfed) apply to a proteft for non-acceptance. Bills are often fo protefted, and yet are eventually paid. The ftrong-eft prefumption arifing upon a proteft for non-acceptance, is, that the drawee has not effects of the drawer in his hands, at the time of prefenting the billbut when a note has been pro-teged for non-payment, the fair prefumption is, that the drawer is either unable to pay it, or has a legal excufe for not paying it •, and the purchafer of the note, under fuch circumftances, has a reafonable warning, and muft take.it at his peril.</p>

Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), was a case in which the Supreme Court of the United States was invited to rule on whether certain non-judicial duties could be assigned by Congress to the federal circuit courts in their official capacity. This was the first time that the Supreme Court addressed the issue of justiciability. Congress eventually reassigned the duties in question, and the Supreme Court never gave judgment in this case.

PROCLAMATION was made in this Ujjufe, “ that any perfon. having authority to appear for the State of New-Tori is required to appear accordingly j’? and noperfon appearing it was ordered, on motion of Cone for the Plaintiff,

Georgia v. Brailsford, 2 U.S. (2 Dall.) 415 (1793), was a United States Supreme Court case continuing the case of Georgia v. Brailsford (1792). Here, the court held that "upon a motion to dissolve that injunction, this court held that, if the state of Georgia had the title in the debt, (upon which no opinion was then expressed,) she had an adequate remedy at law by action upon the bond; but, in order that the money might be kept for the party to whom it belonged, ordered the injunction to be continued till the next term, and, if Georgia should not then have instituted her action at common law, to be dissolved."

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), is considered the first United States Supreme Court case of significance and impact. The Court in a 4–1 decision ruled in favor of Alexander Chisholm, executor of an estate of a citizen of South Carolina, holding that Article III, Section 2 grants federal courts jurisdiction in cases between a state and a citizen of another state wherein the state is the defendant.