Volume 2 — Yeates's Pennsylvania Reports

THE defendant was indicted in the Mayor’s Court of the city of Philadelphia.

This cause came on again to be tried by a special jury. Tlie facts turned out as at the last term ; excepting that it was shown in evidence that the ton of iron was received by tlie plaintiff from the defendant; and it was insisted, that the date of the entry of the credit on the note was mistaken, being made on the 2d December 1785 and not in 1786. The arguments of the counsel on both sides were much the same as in the former trial, and the same authorities were produced.

The defendant’s counsel insisted, that the note and bill were for the same debt, and the circumstances of the plaintiff’s keeping the bill in his hands above seventeen years before he commenced his action, though he brought his suit on the note many years before, was urged as strong evidence of it.

CASE. This action was brought against the defendant as collector of the customs of the port of Philadelphia. The plaintiff claimed for his services, as one of the measurers of salt, coals and grain, from November 1789 to December 1793, and insisted that he had not received more than one half of the fees to which he was legally entitled.

• THIS was an action on the case, for consequential damages. The bail demanded was 8001. Voisin has been returned non est inventus by the sheriff; and a rule had been obtained, to show cause why the defendant Oollot should not be discharged on common bail. On the argument, the following facts were stated. It appeared by the plaintiff’s affidavit, that he was master of the brig Kitty, an Americian bottom, wholly owned by Stephen Girard, of Philadelphia.

<p>“The strong presumption of fraud,” which may detain an insolvent debtor in confine, ment, must be confined to his not delivering up his estate to his creditors.</p>

A verdict was agreed to be entered for the plaintiff, for 1798/. 12s. 2d. damages, on the 1st April last, for not performing a stock contract, subject to the opinion of the court, whether more than 1000/. damages were recoverable.

Covenant on articles of agreement made between the intestate and testator, dated July 25,1775, whereby the former conveyed to the latter, four tracts of land on both sides of Bald Eagle creelc, containing 1000 acres, in consideration of 1501. paid in hand, and 175Z. to be paid on the 25th July 1776, and 175i. to be paid on the 25th July 1777. It was further stipulated, that the expenses of patenting the lands should be deducted out of the purchase money.

EjECTMEMT.for one messuage and 200 acres of land in Blockley township, in the county of Philadelphia. The plaintiff founded his pretensions on a sale made by Edward Bonsai, as agent of the defendant, of the lands in question, and offered the said Bonsai to prove his authority. The defendant’s counsel excepted thereto.

CASE against the defendant, as indorser of three promissory notes, drawn by Joseph Harrison in 1787. Jacob Lawersweyler was sworn as a witness on the part of the plaintiffs, to show that notice was given to the defendant of the notes not being paid, shortly after the expiration of the respective days of grace.

Ejectment for lands in Dauphin county, tried before Yeates and Smith, Justices, at Harrisburgh, October assizes in 1795, and a verdict found for the plaintiff. The defendant obtained a rule to show cause why a new trial should not be had, and had given written notice of the grounds on which his motion was founded. His counsel now wished to take up a new point not inserted therein.

This was a feigned issue to try the validity of the last will of Joseph Douglass deceased, exhibited in the register’s office of Westmoreland county, on a wager of 51. on the part of the plaintiff against 10Í. on the part of the defendant, as to the proof of the will. The cause was tried before Yeates, Justice, at Greensburgh, on the 28th May 1798, when a verdict-passed for the plaintiff for 101., the nominal damages.

Catharine M‘Donald, the wife of William M‘I)onald, was removed by the order of two justices of the county Berks, from the borough of Bead'mg, to the township of Caernarvon, in the said county, as the place of her last legal settlement. From this order, Caernarvon appealed to the court of Quarter Sessions, and the appeal being heard on the merits at April sessions 1793, the following facts were in proof to the court, who stated a special case.

Debt. Pleas nil debet and payment. This cause come on to be tried in bank January 8th, 1795, when it was agreed, that a verdict should be given for the plaintiffs for 2096i. 13s. 4£d. without argument, subject to the court’s opinion on the will of the testator, a,nd the following facts.

In covenant for non-payment' of rent, the defendant offered in evidence the deposition of doctor William Montgomery, (the son of the defendant, and grandson of the plaintiff’s testator.) taken under a commission, tending to prove, that by his grand father’s orders he had written a letter in his name to his father, directing him to pay two years’ rent to the witness, as a token of his affection, his grand father being unable to write himself.

Ejectment for 71 acres and 115 perches of land in Wayne township. The plaintiff claimed the lands in question under two several sheriff’s sales, but did not produce in evidence any extract of the judgments and executions on which the sales were had.

Ejectment for 481 acres of land, in Franklin township. It was admitted, that Richard Noave, sen. and Richard Neave, jun. were seized of the lands in question. The plaintiff made title under them, by a regular conveyance made ,81s August 1793, in consideration of 481/.

The deposition of Samuel Anderson, taken in pursuance of a rule of court was offered in evidence by the pjaintiff; but the defendant’s counsel insisted, that the ten days’ notice required by the rule, should be proved to have been given to the defendant.

These three causes came on to be tried, by the samo jury, by consent. The first two suits were brought for freight and demurrage on a charter party, dated 29th March, 1793, between Bentley, captain of the brig Harriot, (owned by Arnold of Rhode Island,) and Robin Florence and Co., letting the brig to freight from Port au Prince to Philadelphia, for 1000 dollars, and 100 livres per day demurrage from 29th April, 1793.

<p>Express negative words are necessary to oust courts of justice from making rules of reference, in matters of mere account where the parties consent to a submission.</p>

Ejectment for 90 acres of land in Bethlehem township, in Northampton county. The suit was tried at Easton, before Shippen and Bradford, Justices, on the 24th September 1793, and a verdict passed for the defendant. A rule was obtained to show cause why a new trial should not be granted. Shippen, J. now reported the evidence on the trial: A patent had issued to Casper Wistar for the lands in question, under whom the lessor of the plaintiff derived her title.

The plaintiff declared on articles of agreement executed between him and the defendant, dated February 1st, 1788, whereby the said J. covenanted to pay the said S. 97/. 4s. 5d. on the 1st February 1789, with interest, and the like sum of 97/. 4s. 5d. on the 1st February 1790, with interest, and the sum of 97/. 4s. 5d. on the 1st February 1791; in consideration whereof the said S. conveyed to the said J. and his heirs one undivided sixth part of two tracts of land in…

Ejectment for 130 acres of arable land, 15 acres of meadow, and 120 acres of woodland, in Salisbury township. It was admitted, that James Whitehill, senior, was seized of the lands in question.

Conspiracy. The indictment stated, that Catharine Speis was an infant of thirteen years of age, (her father, Peter Speis, being dead, and Susannah her mother married to Casper Gregor,) and under the guardianship of Michael Smyser and Matthias Smyser, both as to person and estate, and that the same Catharine was entitled to a large property under her father’s will, to wit, 1000Í., and resided with the said Casper and Susannah, with the consent of her said guardians ; and that…

Debt on articles of agreement, dated 10th June 1785, for the penalty. The plaintiff, together with Michael Rham his brother (since deceased) agreed to sell to the defendant certain lands, in consideration of 14007. It was stipulated, that the defendant should pay the sum of 707. on the 10th July following, and then possession should be delivered to him.

Ejectment of lands in Upper Paxton township. Both parties claimed under an application, filed in the land office on the 12th August, 1769, in the name of Catharine Armstrong, for 200 acres, above' Galbraith’s land on Armstrong’s creek, then in Lancaster county.

Assumpsit for 6i. 16s. 6d., the balance of money laid out and expended at the defendants’ request. The cause originated before a justice of the peace, from whose decision the defendant appealed to the Court' of Common Pleas.

Ejection for 30 acres of land in Derry township. The defendant and those under whom he claimed, had been in possession of these lands above forty years. One part of his title was to be. deduced under an application, filed in the land office on the 8th February 1768, by Ludwig Bretz, who executed an assignment thereof to John Grayfield. One James Hughes was the subscribing witness, but no pains had been taken to ascertain whether he was living or dead.

<p>(Yeates, J. had formerly been retained in the cause.)</p>

Ejectment for 220 acres of land in Washington township. The plaintiff’s'title was as follows: An application was entered in the secretary’s office, on 3d April 1769, No. 164, in the name of John M’Grath, for 300 acres of land, on the south side of the west branch of Susquehannah, about 25 miles from fort Augusta, including a bottom called Oughcough-Pockany.

Ejectment for 3500 acres of land, on the -waters of Green creek and Fishing creek, in Fishing creek township. Ten of the special jurors only appeared, whereupon tho court on the plaintiff’s motion ordered the sheriff to return the names of six other persons, to he struck by the parties which was done accordingly.

Ejectment for 55,000 acres of land, on the waters of Loyalsock, Hopping, Towanda and Muncey creeks. The. plaintiff claimed under a number of different applications in the land office, dated December 17, 1792, and 8th March and 3d May 1793, for 400 acres of land each, and warrants consequent thereon, bearing equal date therewith, on which surveys were made.

Action for goods sold and delivered. Harvey only was taken on the capias. David Norman was returned non est inventus by tbe sheriff, but a few days afterwards paid the plaintiff one moiety of his demand. The plaintiff has since been discharged by the insolvent act. Harvey disputed the quantum of the plaintiff’s debt. The plaintiff called the other defendant Norman to prove a settlement made between them and acquiesced in.

Writ of error to Philadelphia county. By the record returned, it appeared, that the defendant in error, had brought debt in the Common Pleas on an obligation to March term 1793, on which the now plaintiff had appeared by entry of special bail. Judgment was entered by default in June term following, but no rule to plead appeared to be entered, nor did it appear when the declaration was filed.

The cause was tried this term, when the following facts appeared in evidence. A contract was made between the plaintiff and defendant respecting certain lands. The plaintiff arrested the defendant by process out of Mayor’s Court at New York, returnable 6th June 1786, aud the matters in variance between them were referred by consent to arbitrators.

The cause was tried at Snnbury, before M’lvean Chief Justice and Smith Justices in May assizes last. The Chief Justice now stated the case, on which the defendant’s objection was grounded.

Two justices of the peace of Lancaster connty made an order in the following words: “Lancaster Countv, ss. “Whereas it appeareth unto us the subscribers, two of the justices of the peace, that George Gimper is very poor, and that his legal settlement is in the ^township of Lampiter; we do order and direct you the overseers of the poor of the said township, to pay unto the said George Gimper weekly and every week, as you may think sufficient for his support and main-ten an ce.

Case, for non-performance of a contract respecting the transfer of funded stock of the United States. The cause was tried at the sittings in Philadelphia, on the 19th September last, and a verdict for the plaintiff.

This came before the court on the following case stated. On the 20th February 1758, Jolm Boggs and Margaret Ms wife mortgaged 218 acres of land in Willistown township, Chester county, to Samuel Emlen, to secure the payment of 292Z. and interest thereon. On tlie 1st November 1789, James Massey recovered a judgment in tbe Court of Common Pleas of Chester county, against the defendants, as administrators, for 30Z. and interest from 7th January 1775.

Dower of lands in Coventry township, Chester county. Plea ne ungues seisie gue dower. The action was tried before M’Kean, C. J. and Teates, J. at West Chester, May assizes 1794, when the following facts appeared in evidence. Thomas Dodson, husband of the demandant, settled on the lands in question, and improved the same several years without an office title.

This was a feigned issue to try the validity of the will of William Bradford, Esq. late attorney general of the United States. The question was, whether a certain written instrument, dated 27th April 1788, and republished on the 18th October following, was his legal will ?

This action was brought on two policies of insurance, dated 2d December 1794, on the vessel and cargo of the brig Salome, Hugh Wasson master, from Port de Paix in the Island of St. Domingo, to Philadelphia; the former being valued at 8000 dollars, and the latter at 20,000 dollars.

The only question in this case was, whether the defendants were entitled to commissions on the sums to he recovered. The plaintiffs had a commendatory partnership, and carried on trade at Port au Prince, the two Peles being the ostensible and active partners. On the death of Pierre Pavret, the court of the Senechaussey of Port au Prince, on the 20th October 1794, decreed, that Francis Pavret was entitled to collect the debts of the late company.

A motion was made last March term, and a rule to show cause granted, why the plaintiff’s term should not be enlarged, and a writ of possession awarded.

This cause came before the court on a' case stated. A foreign attachment issued at the suit of Elizabeth Pringle, administratrix of John Pringle, against the said William M’Carty for a debt due by M’Carty in his private capacity to Pringle, returnable, to March term 1793, in the Common Pleas of Philadelphia county.

“ I Samuel Lewis &c., do hereby constitute and appoint my wife executrix, and her brothers Thomas Eisher and Samuel R. Fisher my executors, and direct them to pay my debts and funeral expenses. Item, I give and bequeath to my niece, Catharine Parker, the sum of 2002. to be paid to her within one year after my decease; and likewise I give and bequeath to my niece, Phoebe Gillingham, the sum of 2002., to be paid to. her within one year after my decease.

Be it remembered, that in the term of September in the year of our Lord 1793, came Henry Manly, by William Rawle his attorney, into the Court of Common Pleas in and for the county of Philadelphia, and impleaded Richard Lewis in a certain plea of trespass on the case, &c. in which the said Henry declared, &c. [general indebitatus assumpsit for 4001. for goods sold and delivered, to which defendant pleaded payment.] And afterwards to wit, at an adjourned Court of Common Pleas,…

On the 2d November 1777, Catharine Lauer, the defendant, was married to William Cunnius, with whom she cohabited some time and had a son. Some years afterwards, William Cunnius removed to South Carolina, and now resides in Charleston. After his departure Catharine Cunnius married one Casper Iserloau, but it appeared be had another wife, and therefore this marriage was considered asvoid. After tbe marriage with Iserloau, Catharine Cunnius married the libellant.

<p>Libel for a divorce from bed and board, for barbarous treatment and indignities offered to tbe wife.</p>

SUM case stated. The defendants’ intestate, Michael Hay, was indebted to the plaintiffs3 testator in a certain sum of money, which is not disputed. After the deaths of both, the administrator of Hay gave a valuable consideration to John Philip de Haas, for a check drawn by Henry Darroch, in the following words and figures: “Philadelphia, March 10, 1793, No. 291. Cashier of the Bank of the United States. Pay to Mr. P de Hass, or bearer, four hundred dollars. 400 Dollars.

Trespass for breaking and entering the plaintiff’s close, and cutting down and carrying away certain trees. Pleas, non cut, et liberum, tenementum. The plaintiff became entitled to certain lands in Peters township, under a conveyance, dated 22d March 1777. In 1788, he leased the same to Joseph Grubb, for two years under certain rents, but the lessee was restricted from cutting green timber.

Ejectment for lands in Montgomery township. The lessors of the plaintiff claimed under two licenses from Samuel Blunston esq., to James Coeburn and Jonathan Coeburn, dated 27th February 1734-5 and 29th May 1735, for 300 acres of land each, sit-1 uate on the north west sido of Conegochege creek.

Ejectment for 100 acres of land in Peters township. The dispute turned on this point, whether a survey made by George Smith, on the 24th September 1744 for John Taylor, under a warrant dated 10th November 1742, included certain 26| acres of land, being the premises in question'.

INDEBITATUS assumpsit for 393/. 9s. 0\d. for goods sold. Pleas, non assumpsit infra sex, etplene administaverunt. Replication actionis causa accrevit infra sex annos, assets and issues. The account was for goods sold in Baltimore between 6th November, 1773, and 29th October, 1774, and payments had been made up to September, 1775, which reduced the principal sum to 157f. 16s. Shortly after, the plaintiff sailed for England, where he has since continued.

The plaintiff declared, that “ the said John Henderson in his life time, on the 30th day of may 1788, at the county of Westmoreland aforsaid, acknowledged himself to have received from the said John Young a land warrant for 10,000 -acres of land, and sundry surveys of land in the state of Virginia, which he was to get surveyed for him as soon as possible, agreeable to instructions received, and to remit him as soon as possible, and that he the said John Henderson having so…

The plaintiff’s declaration consisted of two counts; 1st for 300?. had and received for the use of John Boyd. 3d, For other 300/. on an insimul computasset by the defendants with the plaintiff, in their capacity of executors. Pleas, non assumpsit and payment.

Ejectment for one messuage, and 200 acres of land, situate in South Uuntindon township. The plaintiff in support of his title, showed in evidence an application to the land office dated 3d April 1769, No. 2126, for 300 acres of land, specially located, in the name of Thomas Holiday ; also another application dated 13th June 1769, No. 3371, for 300 acres, also specially located, in the name of James Holiday.

A Day had intervened after the delivery of the verdict in the cause preceding, when the lessor of the plaintiff was served with a summons, in aplea of trespass on the case, issued out of the Court of Common. Pleas of Westmoreland county.

Ejectment for 318 acres of land in Unity township. The plaintiff showed in evidence, a warrant to the lessor for 200 acres of land, including an improvement, on the waters of Sewicldy, adjoining lands of Arthur O’Hara, William Anderson, and the widow Eager, dated 24th June 1785.

Ejectment for one messuage and 400 acres of land on French creek. This was a contest between two settlers, without warrants, to lands west of the river Allegheny, and on the east side of French creek. In 1789, one Cornelius Vanhorne erected a cabin of heavy logs on the land. The lessor of the plaintiff in 1792, was an officer of the army, under G-eneral Wayne, and was stationed by him with a detachment of 28 men at Cassewago, to protect the inhabitants from the Indians.

An inquisition of forcible entry and detainer was found on the 22d April 1798, before John Wilkins, esquire, one of the justices of the peace of Allegheny county, stating, that John Deniston was lawfully and peaceably seized in his demesne as of fee of and in a messuage and 440 acres of land in Pitt township, until the defendant and other malefactors unknown, on the 7th day of April 1796, did enter therein and disseize him thereof with force, and forcibly detain him…

Ejectment for one messuage and 100 acres of land in Mifflin township. The plaintiff lay considerable stress on the decision of the Board of Property, on a filed caveat by Alexander Snodgrass, the son of the defendant, who was interested in the lands in controversy,) against James Bell, under whom the plaintiff claimed.

Trespass vi et armis for taking and carrying away 188J gallons of whiskey on the 1st March 1794. Pleas non cut. with leave to justify, etnon cut. infra tres menses.

A HABERS CORPUS ad subjiciendum was issued to the defendant by Alexander Addison, esq. president of the courts of the Common Pleas of the Fifth Circuit, to bring before him Cassandra and Lydia two negro women. The writ was returned before him and then removed by certiorari into the Supreme Court.

<p>Defendant not entitled to issue a distringas without a proviso rule; or to costs where the plaintiff has not taken out n distringas, and given notice of trial.</p>

This cause had been removed at the last court of Common Pleas for Bucks county, held in August last, by habeas corpus, returnable on the last day of September term. The now defendant had removed some other suits at the same time, wherein the title to the lands came in question, by certiorari, returnable on the first day of the term.

Slander. The words laid, were charged to have been spoken in the German language, and imported that he, (the plaintiff,) ivas a liar and murderer, and that the defendant Avould prove it. Plea. JYbn cut. Avith leave to justify. The plaintiff proved the speaking o£ the Avords laid, by three witnesses.

Ejectment for 94 acres of land in Chillesquaque township. Defence taken for 65 acres.

This suit was brought for the recovery of sundry disbursements on the brig Schuylkill at the Havana, against the defendants as owners, by the plaintiff as their agent and consignee. In the course of the trial, the plaintiff offered his books in evidence to show the articles furnished and moneys expended by him ; whibh was objected to, as not being within the principle of goods sold and delivered.

Indebitatus assumpsit with five general counts. The defendant shipped to the plaintiffs at Charleston in South Carolina, sundry merchandize for sale. Part thereof proving unsaleable was re-shipped to the defendant in Philadelphia.

The defendants proved the body of the receipt and the name of the subscribing witness to be the hand writing of Moses Hill, who died in 1785 or 1786 ; and that Peter Sommers had purchased the lease of the island from the defendant’s testator, respecting the rent whereof the arbitration had taken place. It was then proposed to examine William Kenly, one of the defendants, when and where he found the receipt in question ; which was excepted to, on the ground of interest.

A HABEAS OOBPUS ad subjieiendmm issued to have the body of John Connor confined in prison, before the court. It appeared by the return, that he had been committed by alderman Jennings, for refusing to serve his master Hugh Black, as a bound servant. The court were of the opinion, that it did not operate as an indenture of servitude.

A habeas corpus issued to have the body of Duvivier Jubla confined in gaol, before the court forthwith. Jacob Hoffner the gaoler, returned, that he had been arrested by the name of M. Gas-tog, by mesne process out of this court, at the suit of Peter and Thomas Mackie, for the use of the under-writers of the sloop Hope and her cargo, and averred him to be the person against whom the capias issued.

Mr. Porter for the defendant, moved for an attachment against Francis Bailey of Philadelphia, for not attending at the last assizes, for Bedford county, and bringing with him certain printed newspapers containing the advertisements of the commissioners of that county for the sale of unseated lands for taxes, pursuant to a writ of subpoena, with a duces tecum therein of the said newspapers, The motion was grounded on an affidavit, proving the seiwice of the subpoena on Baily,…

On a habeas corpus ad subjiciendum returnable immediately the defendant returned that he had and detained the body of Henry Banks in his custody, by virtue of two several writs of mesne process, &c. On the hearing, the facts appeared as follow: A suit was commenced in Virginia, in the District Court of the United States, by William M‘Whan and David Campbell administrators of Patrick Carnes, against the said Henry Banks, on which David Eoss became special bail in the sum of…

’ A Verdict was given for the- plaintiffs for 3137i. 8s. llaf. at the last sittings, on the 12th March instant. On a rule to show cause why a new trial should not be granted, it appeared that a paper was delivered to the jury, containing an account of expenditures respecting a house built on the lands of defendant, said to be with the knowledge of the defendant, referring to the bankrupt’s books and their several pages, without the consent of the adverse counsel.

<p>Landlord is entitled to the rent due to the time of sheriff’s levying on his tenant’s goods found on the premises, provided it does not exceed one year.</p>

A Summons in case, founded on a libellous publication by the defendant, in a weekly paper, issued, returnable to last term. A petition was then filed by him, stating that he was a subject to the kind of Great Britain, and that the matter in controversy exceeded the value of 500 dollars, exclusive of costs; and praying for the removal of the cause of trial into the next Circuit Court of the United States, to bo held for the district of Pennsylvania.

A Domestic attachment had issued against the defendant by mistake ; it clearly appeared by affidavits, that ho kept his counting house in the city and had never absconded, but had gone abroad on urgent business, the nature of which was particularly stated to the court. Messrs. Tilghman and Thomas prayed that the attachment might he dissolved. Mr. Rawle for the plaintiffs, insisted, that previous notice should be given to the creditors.

The cause had been tried before M’Kean Chief Justice and Shippen Justice, at Lancaster, at the last April assizes ; and the latter now made the following report of the evidence. This was an action for criminal conversation. The defendant pleaded not guilty, and the act of limitations. The plaintiff proved his marriage in 1785, and proof was likewise given of a criminal conversation between the defendant and plaintiff’s wife, within a year or two after the marriage.

<p>Demand of security for a debt from a freeholder need not be in writing, and when the plaintiff has sworn to such demand, a counter affidavit of the defendant will not be received.</p>

Mr. Moses Levy moved that a writ of estrepement might issue. He urged that there was strong reason to suspect a commission of waste. The defendant had purchased the lands from the lessor of the plaintiff, but had paid no part of the stipulated price and now refuse to deliver up possession, though totally insolvent.

This was an action on a policy of insurance on the schooner John, Nathan Simmons master, entered in pursuance of an agreement between the plaintiff and the several underwriters on the 15th December 1792. It was mutually stipulated, that they should severally be bound by the first two verdicts and judgments had in the cause, which should determine the matters in controversy in the same way, either for the plaintiff or defendant.

<p>Where the property of a person attainted of high treason under the aot of 5th March 1Í78, is sufficient to pay his debts, his creditors are bound to resort to the fund provided by law.</p>

Debt sur obligation, 31BL 6s. 6d. Plea payment, with leave, &e. Tbe plaintiff sued as the guardian of Martha, Isabella and Sarah Maxwell, whose sister Margaret had conveyed to the defendant a certain plantation, in Caernarvon township. John Maxwell their father, died intestate, seized of these lands, having married a second wife, (living the first,) with whom he cohabited near fifteen years.

The plaintiff declared in debt for 300/. as follows: John Wilson and James Armour, &c., were summoned, &o. And whereupon, the said John Hopkins administrator of the said Sarah Hopkins,who was trustee of the said James Hopkins (the same John being herein made a party by and at the instance of the same James the cestui qm trust) by Charles Smith his attorney saith, that whereas the said Robert Armour in his life-time, to wit, on the 20th April 1773, at the county aforesaid, by…

Ejectment for lands in Salisbury township. The lessor of the plaintiff claimed the lands in question under the will of his great-grand-father, dated 31st March 1742; who devised the same to John Miller, his son, in general tail. John Miller after his father’s death, constantly resided on the lands, and died about four years ago.

' Wendel Keller husband of the defendant, in his life-time, on the 23d July 1791 (being in insolvent circumstances, and unable to pay more than eight shillings in the pound of his debts, and having also committed acts of bankruptcy ) sealed and delivered a deed of conveyance and assignment of all his real and personal property to William Wistar and George Ashton, Benjamin Poultney and Richard Wistar, Ellis Yarnal and William Harrison, as trustees for all his creditors, in…

Ejectment for 70 acres of land West Pennsbro’ township. Held: that a survey under such circumstances gave no title, and was wholly invalid; and the plaintiff thereupon suffered a non-suit. The plaintiff’s counsel answered, that true it was, such was the event of the former cause, and such were the sentiments of the court shortly after the revolution, and in 1781.

It was admitted, that the lessors of the plaintiff were seized of this tract, as part of their manor of Sinking Creek Valley.

Ejectment for 330 acres pf land in Mahoning township. The plaintiff’s title was as follows : Application in the namebf John M’Gally for 300 acres, adjoining the path from Mahoning to Muncey creek, eastward of the said path, on the branches of Chillesquaqui, including a bog meadow, entered 3d April 1709, No. 712, indorsed “ Richard Peters, jun. ” Survey thereon of. 330 acres and allowance, by William Scull, deputy surveyor, on the loth May 1771, which was brought into the…

Debt on obligation, dated 9fch January 1779, conditioned for the payment of 80/. on the 10th January 1780, with lawful interest. Plea payment, with leave to give the special matter in evidence. The defendant admitted himself to be liable to the plaintiff for the sum expressed in the condition of the bond, rating the same at 8 for 1 according to the scale of depreciation contained in the same act of 3d April 1781, (1 Dali.

Debt 50/. Plea nil debit and issue. The declaration stated, that Jacob Zieber, junior, was the servant and apprentice of the plaintiff, to learn the trade of a hatter; and that the defendant being a clergyman joined him in marriage to Elizabeth Bickley, he being under the age of twenty-one years, without due publication of the banns, and without a certificate of the plaintiff’s consent, by which action had accrued to the plaintiff,* to demand and have of the defendant 50/.

Ejectment for lauds in Lycoming township, on the east side of Susquehannah. John Walker died intestate, seized of an improvement right to certain lands on Pine creek, leaving a widow and eight children. On the 17th June 1785, a pre-emption warrant issued to Jane his widow and William and Henry two of his sons, in trust for themselves and the other children, on which a survey was made of 292 acres and 142 perches.

Ejectment of part of a stone dwelling house, opposite to No. 341, in the town of Lewisburgh, and of a piece of ground of the breadth of 66 feet, extending to low water mark, containing one acre more or less, in Buffaloe township. The plaintiff’s title was as follows : A patent issued to Richard Peters, dated llth August 1772, for 320 acres, bounded on the east by the river Susquehannah.

<p>The law of England as'to mutual promises is not applicable to Pennsylvania. The day laid in the declaration on a parol contract is not material on evidence. Court will not direct a nonsuit, where the proofs are variant and contradictory. Credit of a witness not to be impeached by charges of offences of which he has not been convicted.</p>

The declaration stated, that the intestate on the 7th June 17 69 was indebted to the plaintiff’ in ill. 10s 8d. for money had and, received to his use of and from the estate of Tobias Ritter, as administrator thereof, and so being indebted, promised to pay, &c. (the request to the now administrators laid on the 1st June 1789.) Pleas, non assumpsit and payment, and non assumpsit infra sex armos.

This cause had been ordered up by distringas, and had been put off by the plaintiff.

<p>The plaintiff claimed under articles of agreement between the parties, dated 22d January 1794.</p> <p>The defendant thereby granted, bargained and sold to Minsker and Bale, a tract of 160 acres of land and allowance, in Londonderry township, with the grain then in the ground, in consideration of 430k, whereof 30k was to be paid down, and bonds with good security to be given for the residue; viz. 200k payable on the 1st April 1794, 100k on the 1st April 1895, with interest from the 1st April 1794, and 100k on the 1st April 1796, with like interest. The defendant covenanted on execution of the bonds to convey the lands on the 1st April 1794, deliver them peaceable possession, and to give bond with security for making them a good title. On the day of the date of the articles, 30k was paid to the defendant.</p> <p>The plaintiff-’s unwritten evidence was as follows. Towards the latter end of March 1794, Minsker and Bale called on the defendant and told him they had brought him 100k and had the promise of the remaining 100k in eight or ten days. He answered them it made no odds, as he was not then ready to receive the money, and desired them to wait till after his vendue, which was advertised to take place on the 2d April, and he would then have the title prepared for them.</p> <p>They called again twice at his house with the 200k in April, but did not find him at home. About the 20th of the same month, they came there again with the money, and hearing that he was at the house of a neighbor, went there also, and told him his cash was ready for him. The defendant refused to receive it, as not being offered on the 1st April, and. then on being pressed to repay back the 30k which he had received, said he would retain that sum as damages; on which they commenced an ejectment, without tendering the bonds, though they had before engaged a sufficient person as their security.</p> <p>Messrs. Montgomery and Fisher for the defendant, moved that the plaintiff should be nonsuit, because it did not appear that the purchasers had tendered the two bonds with security for the remaining payments.</p> <p>Where damages cannot be recovered on an agreement at law, specific execution will not be decreed in equity. 1 Equ. Ca. Ab. 15, pi. 1. Sel. Cha. Ca. 67, 69. Ambl. 406. Sed vide 2 Wms. 243. 2 Vern. 480. 1 Ld. Kay. 515. 2 Fonbla. 140. The party must show that he has done all that was to be performed on his part. 2 Pow. on Contracts, 19. A agreed to sell B his estate for a certain sum, before a particular day, in consideration whereof B agreed to pay that sum on the day, and on failure, to pay 21Z. Held, that they were dependent covenants, and that A could not recover the 21Z. without showing a conveyance on his part, or a tender of it. 4 term Rep. 761.</p> <p>The court refused the motion. The defendant may, by his own act, dispense with this tender. Evidence has been given that it was not insisted on or expected. The first 30Z. had been paid when the articles were perfected. Before the second payment became due, 100Z. was offered to the defendant, but he declined accepting it, desiring them to wait till after the vendue. It was incumbent on him afterwards to show his readiness to receive the second payment. But the purchasers afterwards tender him this 200Z. and he then absolutely refuses to make the title, merely because it was not offered to him on the 1st April, and even refuses to pay back the 30Z. “ The party must show he was ready, but if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go further, and do a nugatory act. ” Doug. 694, (2d edit.)</p> <p>The counsel then insisted, that the residue of the purchase money, and interest thereon, should be brought into court, before the plaintiff should be permitted to go on with his cause. This court will not administer equity by halves.</p>

Philip Martz and Mary Eva his wife, were brought before the court, by a writ of habeas corpora. Return w~as made thereto, that they were confined by mesne process, issued out of the Court of Common Pleas of the county of Philadelphia, at the suit of Pratt and Kintzing.

The plaintiff made affidavit of his being shipped as a mariner for the voyage above mentioned, and that the defendant, after his arrival at Lisbon, proceeded to Elsineur (on which Yoyage they passed the bay of the river Texel,) thence to Riga in Russia, Elsineur, England and Lisbon.. At this latter port the plaintiff demanded his wages- and discharge, as he had frequently done at the other ports.

A Summons in debt issued to last December term, grounded on a recognizance of 2000 dollars, entered into before McKean, C. J. by the defendant, on the 18th August 1797, conditioned for his good… Held: for the district of Pennsylvania. His affidavit of the truth of the facts, was subjoined to his petition. Messrs. Lewis, E. Tilghman, Rawle and Harper, for the defendant, contended for his right of removal.

Case stated for the opinion of the court. Debt 4507. The plaintiffs sue for two legacies, one of 3007. and the other of 150/., bequeathed to Elizabeth Massey aforesaid, .by the will of her father, Wight Massey, dated 3d November 1761.

The plaintiff had entered up a judgment against the defendant for 18,400 dollars, on an obligation, conditioned for the payment of 9,200 dollars, on the several days and times indorsed thereon.

This canse came'before the court, on a point reserved at the trial •at Sunbury, October 20th 1797.

A Testatum Ji. fa. had issued in this cause to Alleghany county, on which certain lands had been levied, and an inquisition had found that the rents and profits would pay the debt and costs in seven years. Mr. Tngersol! for the plaintiff, now moved to set aside the execution on his client’s paying the costs, alleging that goods had been discovered ivhich would satisfy the debt and save the defendant’s lands to him.

Summons debt 4500 dollars, returnable this term. A capias had issued against the principal to the last March term, on Avhich the sheriff returned a bail bond; which from some circumstances had not been sued to the last September term.

Dower o£ one messuage, one barn one orchard, six acres of meadow, 90 acres of arable land, and 204 acres of wood-land, in Lampeter township, in Lancaster county.

Jaocb Haines being seized of certain lands in Lancaster county, in fee simple, made his will in writing, dated,3d of 7th month 1762, duly proved, whereby he devised to his wife Hannah, her riding mare, and sundry other specific articles, to her and her heirs forever ; also 121. per annum, to be paid her as is hereafter devised, the Indian corn patch, the north end of the house, &c.” Then came the following devise ;“I give, bequeath and devise to my son Daniél Haines, all…

Ejectment for lands in Daupliin county, in which a special verdict was found at Harrisburg, 29 October 1795.

Case submitted to the court for their opinion. A replevin was brought by John Brubaker against John Brua, for taking and detaining a large quantity of wheat and rye in shocks, of the value of 276/. 12s. 6d. On the now plaintiff’s executing the writ, Brua claimed property, and he together with Eoutz and Wither the defendants, executed a bond to him in the penalty of 553?. 5s., conditioned for Brua’s appearance at the next court to answer, &c. On a trial at Nisi Prius, at…

Case on a policy of insurance on the ship Mount Yernon, George Dominick master, at and from Philadelphia to Cowes, London, and one other port in Europe, not in the Baltic or Mediterranean. The defendant on the 14th May, 1796, underwrote fifteen hundred dollars on the policy, at a premium of 4J per cent, whereof 1 per cent, was to he returned, if the ship should discharge in England.

A Rule was granted at the last term, on the affidavit filed, that the defendant should show cause why an information in the nature of quo warranto, should not be filed against him for assuming and exercising the office of treasurer of Cumberland county. Messrs. Dallas and J. B. M’Kean for the defendant, now showed cause from records, affidavits and other proofs.

Case stated in, dower of lands in Cumberland county. John Sample, the late husband of the demandant, being seized of the lands in question, made his will dated 3d September 1792, and thereby devised to her sundry specific articles, and also “ 200i. to be paid to her in cash, one year after the sale of his real estate.” He then directs, that his wife Kissiah and his three sons John, Chambers and Samuel and his daughter Elizabeth, should live together on his real estate, and…

It appeared, that the plaintiff had issued a fieri facias returnable to 30th December 1797, on which the defendant’s goods and household furniture were levied, and the plaintiff requested of the sheriff, that the property might remain in the hands of the defendant, which was complied with. James Hawthorne obtained a second fi.fa. against the defendant. And afterwards James Cummins et at. sued out a third execution against his property.

On a certiorari directed to the justices of Oyer and Terminer of Dauphin county, it was returned, that on the 17th June 1798, the prisoners had been tried as accessaries before theffact to the murder of Francis Shitz, and had been found not guilty by a jury of the country.

Ejectment for 318 acres of land in Whiteley creek. The plaintiff claimed the premises, under an early improvement made by Thomas Provence, which originated in 1767, was continued down until 1783, without interruption.

Ejectment for one messuage and 50 acres of land in Hopewell township. The plaintiff showed a regular judgment, fieri facias and venditioni exponas against A udrew Gibson, a deed from Thomas Hamilton esquire, sheriff to him dated 23d April 1798, duly acknowledged; and further proved, that both at the time of levy' and sale, Gibson was in peaceable possession of the premises.

Case. The plaintiffs declared on two counts. 1. That whereas the said Eve on the 1st June 1788, at the county aforesaid, agreed to serve the said Abraham for and during the term of four years then commencing, in consideration thereof, he the said Abraham, then and there upon himself did assume to pay to her, the said- Eve, what the service of the said Eve, should for the said term be reasonably worth.

This wms an ejectment for 400 acres of land, brought on a mere improvement right. A witness proved, that the lessor of the plaintiff had a small nursery and trees deadened on the land, about twenty-two years before the bringing of this suit.

Homine replegiando. Plea property. It was admitted on trial, by both parties, that the plaintiff was born a slave in Maryland, and was brought from thence in the month of October 1782, into Westmoreland county, by the defendant his then master, who before the 23d September 1780, was not an inhabitant of Westmoreland or Washington counties ; and that the plaintiff was registered in the office of the clerk of the peace of Westmoreland county, as a slave on the 30th Debomber…

Ejectment for one messuage and 192-f acres in Donegal township. The plaintiff claimed the premises under a sale from David Hoge, esq., sheriff of Cumberland county, made in October 1771, and levied on as the property of George Kline, the same being then woodland and wholly unimproved ; but no deed was then executed.

Ejectment for one messuage and 100 acres of land in Solem township. The plaintiff claimed under a deed from John Carnaghan, esquire, sheriff, dated 6th February 1776, proved by the oath of William Lochrey, one of the subscribing witnesses, on the 12th March 1794, and recorded on the 17th of the same month, but it was not acknowledged in court.

Ejectment for one undivided half part of a lot of ground in the manor of Bedford, containing 17f- acres and 11 perches.

Debt 550i. Plea, payment, with leave to give the special matter in evidence. Replication non solvit and issue. The facts on the trial appears as follow : Bollinger^ an inhabitant of North Carolina, an adventure of slender property, claimed a right to 1,152 000 acres of land in Powel’s Valley in the state of Kentucky, under a pretended survey made on the 18th June 1795.

Trespass and crim. con. The plaintiff declared, that the defendant on the 1st January 1796, and at divers other times, from, thence until the 1st November following, made an assault on Margaret the wife of the plaintiff, and her did ravish, lay with, aud carnally know, per quod consortium amisit, &o. The plaintiff called several'witnesses, but could not establish any improper freedoms between the defendant and his wife, within the times declared for.

Berks county, ss. Daniel Stout, late of Berks county, yeoman, was summoned to answer Adam Swenk of a plea that he hold unto him certain covenants, according to the force, form and effect of a certain deed poll by the said Daniel to the said Adam, made, &c. and whereupon the said Adam by John Spayd,his attorney,saith, that on the 11th day of August, cvrmo domwvi 1788, at the county aforesaid, the said Daniel, by a certain deed poll, with his seal sealed and now brought here…

Slander. Words of forgery. Plea non ml. with leave to give the special matter in evidence. The plaintiff having proved the substance of the words spoken as laid in the declaration, offered to give evidence of other slanderous words at other times. This was excepted to by the defendant’s counsel. Though it is laid down in some of the books, (Bull. Nisi Prius 7.

Ejeoment for 214 acres of land in Lower Paxtang township. The quantity in dispute was 46 acres only. Held: should have one moiety of the land, and he paid his proportion of the purchase. Both settled on the tract, and further improved and cultivated the same, Samuel holding the east, and Jeremiah the west end thereof.

Indictment for perjury, in a trial at Nisi Prius at Wilkesbarre; on the 16th October 1797, in an action offorcible entry and detainer, prosecuted by Obadiah Scott against Rufus Lawrence, in falsely swearing that the said Obadiah made a shelter and planted corn on the pi’emises for which the action was brought, &c. The prosecutor neglected to bring up the postea.

Action on a bill of exchange, dated Manchester, March 3d 1788, drawn by Livesey, Hargreave and Co. on the defendants, merchants in London, in favor of Thomas Hallowel or order, for 927L 5a. sterling, payable at seventy days sight. An indorsement purporting to be of Hallowel, appeared on the bill, which was accepted by Blodget and Co., and as appeared by the protest, fell due on the 15th May 1788. ' The plaintiffs’ declaration contained three counts.

Capias debt. Bail marked in 50001. Mr. M. Levy moved that the defendant should be discharged on common bail. He admitted, that the defendant was indebted to the plaintiff in a considerable sum, hut showed an exemplification of a law of Maryland, passed on the 10th January 1799, for the relief of divers insolvent debtors by name, amongest whom was the defendant.

Ejectment of lands in Cumberland county, tried at Carlisle, wherein the following bill of exceptions was sealed. JAMES RIDDLE, (L. S.)” The plaintiff below having obtained a verdict and judgment, was put •into possession of the premises under a writ of habere facias possessionem, and the defendants brought a writ of error, returnable to December term 1797.

Tuts cause was tried at the sittings for Philadelphia county on the 19th June last, and a verdict given for the plaintiff for 2964 dollars 23 cents (Vide 3 Dali. Rep. 505. S. C. A motion was now made by agreement for a new trial. The plaintiff’s declaration contained three counts. 1. On mutual promises. 2. On the stock contract. 3. For money had and received to the plaintiff’s use.

<p>The law of 18th April 1Í05, directing the corporation of Philadelphia to pass ordinances to prevent the erection of wooden buildings in certain parts of the city, as they may judge proper, is constitutional.</p> <p>A city ordinance founded thereon, prescribing a penalty on conviction of the offence on indictment in the Mayor’s Court, is good.</p> <p>Court will not pronouce a law unconstitutional unless in a clear case.</p>

Blair M’Clenaohan haying been surrendered by his special bail, and given security agreeably to the act of assembly, passed on the 4th April 1798, 4 Dali. St. Laws, 269, applied by petition to this court, at the last March term, for the benefit of the acts made for the relief of insolvent debtors.

Ejectment for one moiety of 213 acres of land in Paradise and Codorus tdfcwnships, tried before Shippen and Yeates justices, at York, on the 26th April 1798, wherein the jury found a special verdict as follows: That Mary Harshey was seized of the lands in question, and intermarried with David Eshelman, and died on the 1st May 1786 intestate ; leaving issue six children, viz. Martin her eldest son, aud Christian, Susannah, Elizabeth, Mary and Ann the lessors of the plaintiff.…

The plaintiff excepted to a report of referees, finding a balance in bis favor of 931 dollars and 22 cents, on the following specified grounds: 1st, The referees have adopted a clear mistake of a principle of partnership, allowing to the defendants a considerable sum by an erroneous statement on a joint transaction, in which the parties were equally interested, when in fact the adventure yielded no profit, but was attended with a heavy loss. 2d, The referees have mistaken a…

A Rule had been obtained, to show cause why a new trial should not be granted. Shippen, C. J. now reported a state of the evidence as it appeared, before the late Chief Justice and himself, on the trial at Yerk^ on the 4th May 1797, as follows: It appeared that Samuel Emmet, the lessor of the plaintiff, and William Cochran^ agreed to purchase from Charles Carrol a large tract.of land in York county, called Carrolsburgh, held under a Maryland title, containing 5000 acres.

Dower of 20 acres of meadow, 100 acres of arable land and 280 acres of woodland, nm.de nihil habet. The cause was tried at Chambersburgh, on the 20th April, 1798, before the late Chief Justice M’Kean and Smith Justice, who directed a non-suit ou the ease being opened by the plaintiffs counsel, that the seisin of the husband, was solely under an improvement right with out aüy office title whatever.

Motion to set aside the sale of the defendant’s lands, by the sheriff' of Payette county. It appeared that a testatum y?, fa. had been delivered- into the hands of the sheriff of Fayette county, at the suit of Eyerson, in the month of June 1797, for the sum of 2202 dollars and 64 cents, on which he levied four tracts of land, which were afterwards condemned by an inquest.

It was admitted, that about the year 1785, Geigar sold a tract of land in Robeson township, Berks county, to Zuber, for 4000k ; and that the latter being wholly unable to comply with his contract, executed to the former two bonds for 250k each, with security, in May 1787, as a compensation of his damages.

A Testatum fieri facias issued in this cause, to Northumberland county, returnable to March term 1797, on which the defendants’ real personal property was leived. A venditioni exponas issued to September term 1797, returned “no buyers’” An alias venditioni issued to September term 1798, returned “ sale postponed at the plaintiff’s risk,” and a pl/wries venditioni afterwards issued to last September term.

Then come the following clauses in the will “ Item, I will, that if any of my legatees die without natural heir, that my bequeathments return into my family, to whom they please. And further, I also allow my personal estate, either by vendue or otherwise, and then what ready money is made, be equally divided among my legatees, by equal proportions, at the discretion of my executors.

INDEBITATUS assumpsit for goods sold and delivered. Pleas, non assumpsit and payment. Before the jury were charged, the defendant’s counsel prayed leave to withdraw his plea of non assumpsit, as he meant to rely on his plea of payment. This was objected to as the plaintiffs had been put to expense in obtaining proof of the sale and delivery of the goods.

<p>Replevin for 60 pieces of bandanoes. Defendant pleads property.</p>

Case sur promissory note. The defence set up was, that the note was given in consideration of certain lands in the state of Georgia, which at the time of sale, were incumbered by divers judgments had against Zachariah Cox, the former owner of them. ' To prove these incumbrances, the defendant offered in evidence, a paper under the hand of the cleric of the Superior Court of Chatham county, in Georgia, but not having the seal of the court annexed, nor certified agreeably to…

It was admitted, that the plaintiffs were citizens of Pennsylvania, that the debt for which the defendant was arrested, was contracted in Philadelphia, and that upon a former application to this court, for the benefit of the insolvent acts here, he had not given notice to the plaintiffs, pursuant to those laws.

Scire Facias on mortgage. Plea payment. The facts on the evidence appeared as follow : Thomas Dixey and wife, on the 15th November 1785, conveyed a lot of ground in the city of Philadelphia to Richard Carleton in fee, under a yearly rent charge of 32 Spanish milled dollars.

The plaintiff having obtained a verdict in this cause at Carlisle, May assizes, 1798, and the defendant having afterwards obtained a rule to show cause why a new trial should not be granted, the same was continued by mutual consent until the present term, when after full argument, the court discharged the rule.

Writ of error to Northampton county. It appeared by the record, that debt was brought on an arbitration bond, dated 6th June 1793, to perform an award, so as the same was made in writing before the 1st January then next. Plea nut award.

This action was tried at the last sittings for Philadelphia county, before Smith and Breekenridge, Justices, when a verdict was obtained by the plaintiff. A motion was now made for a rule to show cause why a new trial should not he granted.

p. Ejectment of a house and lot in the city of Philadelphia.

. Motion to set aside a judgment, entered September term 1798, in an amicable action in covenant, brought to December term 1797. The suit was founded on the guaranty of a bond, executed by James Wilson, esq. The bond was dated in 1796, payable on the 9th November 1797, and assigned by the defendant to the plaintiffs, on the 9th May 1796. The guaranty was dated on the 25th August 1796.

Case stated for the opinion of the court. Peter Borger, late of the city of Philadelphia, merchant, being considerably indebted to George Davis, the defendant, the said George obtained judgment against him, and on the 2d September 1797, issued a fi. fa. thereon, upon which part of the debt due to him was levied.

It appeared, that three brick houses were erected on the lot, two of them being nearly of equal value, but the third not so valuable. A Mrs. Fleeson, who was seized of the remaining undivided third part, lived in one of the houses, but expressed no inclination to become a purchaser. The sale was adjourned at the instance of one of the agents of the creditors, from the 26th February until the 5 th March, and again to the 12th March, and was open and fair.

Case stated for the opinion of the court. On the 8th May 1732, John Penn, Thomas Penn and Richard Penn, sons of William Penn, the first proprietor of Pennsylvania, and the three lower counties, were seized in fee or entitled to the same, and to divers quit rents, lands and hereditaments therein, as tenants in common, as follows : John Penn to one moiety, Thomas Penn to one fourth, and John and Thomas Penn to one fourth remaining, in trust, for the said Richard Penn.

Ejectment for a lot of ground, in the Northern Liberties, in Philadelphia county. The following case was stated for the decision of the court, and the situation of the parties rendering a speedy determination indispensably necessary, it was submitted in the vacation to Shippen, Chief Justice, Yeates and Smith, Justices, by the counsel on both sides, with their arguments in writing, under an agreement that judgment should be entered thereon conformably to their opinion.