Volume 3 — Binney's Pennsylvania Reports

IN ERROR. THE plaintiff in error was convicted in the sessions of Luzerne county of a perjury, for which he was sentenced by the judgment of that court, in November 1806, to pay a fine of ten dollars, to be imprisoned at hard labour in the penitentiary house of Philadelphia for two years, and to pay Prior to the act of 4th April 1807, no person convicted of ^^^¿ntíes in this state, ex-could be sentenced to imthe ga^of the county of Phil^dphm.

<p>r-g-Nj|IS was an appeal from the decision of the Chief Jusóce at a Circuit Court for Luzerne in June 1809.</p> <p>A judgmentin Uen”on¿eveiyIS * kind of equitable vefte^lbi'the" ’ debtor at tire judgment; Held therefore to of a Connecticut settler inland within the Seventeen Towns, who wasintitled by the act of 1799 to obtain a patent upon no'uie, ^utTds1 assignee, after and the^s'aleT complied with the terms, and then for the tf'St d™ie°con formation.</p> <p>The copy of a tier’s deed deposited accordgembly in the land office, is, the seal and sigMtUVr officer as°good°evi-1’ dence as the original would be.</p> <p>it was an ejectment for a tract of land within on.e of the seventeen townships, to which the plaintiff set up a title under a certain William Craig, who held it as a Connecticut claimant by deed dated the 30th June 1798. On the 4th of April 1799, the commonwealth of Pennsylvania by an act of the general assembly, gave to the Connecticut settlers within , . . , . , , , , . , the seventeen townships, whose rights had been acquired under Connecticut prior to the decree at Trenton, an option . - , , . . r to receive a patent tor their tracts upon paying a sum oi money, provided the Pennsylvania claimant of the same land should release it to the commonwealth. On the 5th of September 1799, a judgment was obtained against Craig by Matthias Hollinback, who revived it by scirefacias in January 1803, levied upon the land in August following, and finally in , . _ r , . , ° , ',. , , , August 1806 caused it to- be exposed to public sale by the s^er*^> ^rom whom it was purchased by Carkhuff the plaintiff,</p> <p>In order to shew that the defendant held Under Craig, the plaintiff’s counsel offered in evidence on the trial, a copy of a deed from Craig to Anderson, dated the 10th January 1801, for the land in question, certified by the secretary of the land office, under his official seal, to be a true copy of the original deposited in his office: and which, by the copy, appeared to have been proved by a subscribing witness. This ev^ence was objected to, but was admitted by the Chief Justice, under the authority of an act of the 9th of April 1781. Parol evidence was then given to shew Craig’s con- . . . . ° . f tmuance m possession until some time m 1803, and the defendant’s knowledge of Hollinback’s judgment and execution in that year.</p> <p>The defendant relied upon a patent from the commonwealth, dated the 30th November 1808, which he had claimed and received under the act of 4th April 1799.</p> <p>The only points in the cause, were, whether the judgment against Craig operated as 'a lien on the land held by him under the Connecticut title; and whether the certificate of the secretary of the land office was competent evidence; and in order to bring these points before the Supreme Court, it was agreed that a verdict should be entered for the plaintiff, and that a motion for a new trial should be overruled, to ground an appeal by the defendant.</p>

Between two applications of the 3d April 1769, that which came out óf the wheel first, and was lowest m number, has the preference. fact forthe jury of Uvo'app'lica^1 dons is most delanTin or whether ei- ’ ther applies to it. An application fheland'Is to be preferred to one -^scnpuve such descriptive application is higher m number, provided used^n'obtaining a survey.

A slave has a settlement in where his'master resides, -which is bound in the first instance to support him, though it may have a remedy over against the master or his estate. So in the case of a manumitted slave, who has not acquired a settlement elsewhere, after his manumission. Vide act of 29th March 1803, sec. 28. 5 St. Laras 536.

r 1 ''HIS was an ejectment for a messuage and ÍSS acres of X land in Centre county, tried before Brackenridge T. at . r _ J , r , ° , a Circuit Court for Centre on the 21st June 1808. It had been prevjousiy tried before the Chief Tustice, and a verdict found *. for the defendant, which was set aside, r,-, .

in ERROR- THIS was a writ of error to the Common Pleas of Northumberland county, to bring up the record and proceed- ' ings in a libel for a divorce a mensa et thoro; and a motion was notv,made to quash the writ, upon the ground that the act of 2d-dj&ri/1804, which gave jurisdiction to the Common Pleas in cases of divorce, authorized an appeal from their final sentence, but not a writ of error; and the proceeding in these cases, not being according to the course of the…

IN ERROR. THIS was a writ of error to the Common Pleas of Lycoming county. by the surveyor general upon the copy of an application, which had been entered in the secretary’s office, is good evidence, although there is no proof that a copy of the application was ever entered upon the books of the surveyor general.

in ERROR. Y the minutes of the prothonotary in this case, which was a writ of error to thé Common Pleas of Northumberland, it appeared that on the 24th August 1808, the, recognisance of William Murray and Matthew Irwin was taken as bail in error, and notice given to the defendant in error.

, APPEAL from the decision of Brackenridge J. ata Cir- . . ° J cuit Court tor Centre in june 1808.

<p>IN ERROR.</p> <p>THE plaintiff in error was indicted at an Oyer and Terminer for Northumberland in April last, of the offence charged in the following bill:</p> <p>A warrant of arrest, issued upon common rumor and report of the party’s guilt, though it recite that there was danger of his escaping before witnesses could be summoned to e.nable the judge to issue it upon oath, is illegal, and the constable to whom it is directed is not bound to execute it.</p> <p>“ The grand inquest of the commonwealth of Pennsylva- “ nia, and for the body of the county of Northumberland, on “ their oaths and affirmations respectively do present, that on “ the thirteenth day of December in the year of our Lord one “ thousand eight hundred and nine, the .honourable Thomas “ Cooper esquire then and yet being President Judge of the “ courts of Common Pleas and General Quarter Sessions of “ the peace in and for the eighth judiciary district of the “ commonwealth of Pennsylvania, and President Judge of “ the courts of Common Pleas, and General Quarter Ses- “ sions of the peace in and for the said county of Northum- “ berland, having authority to hear and determine divers fe- “ lonies, trespasses and other misdeeds committed in the “ said county, and having by virtue of his office authority to is- “ sue warrants, commitments and other process, on the day and “ year last aforesaid at the county aforesaid did make and is- “ sue his certain warrant under his hand and seal in due form “ of law, bearing date the said thirteenth day of December in “ the year eighteen hundred and nine, in the name of the “ commonwealth of Pennsylvania, directed to the constable “ of Derry township, or to any otheruonstable of the county “ of Northumberland, setting forth, that it appeared to him the “ said Thomas Cooper from common rumor and report, “ that there was strong reason to suspect Jacob Langs of Der- “ ry township in Northumberland county, of having knotv- “ ingly uttered as true and genuine, certain false and forged “ notes purporting to be notes of the Farmers and Mechanics’ “ Bank of Philadelphia, and that the said Jacob Langs was u likely to depart from and quit the said county of Northum- “ berland, and retreat to parts unknown, before the witnesses w to the said uttering could be duly summoned and appear beilfore him the said Thomas Cooper, in order to enable him to “ issue a warrantfor the said Jacob Langs founded upon their “ testimony on oath, therefore authorizing and requiring them “ without delay to bring before him the said Thomas Cooper “ the body of the said Jacob Langs, in order that he might “ be examined touching the premises, and therein be dealt “ with according to law; which said warrant, afterwards to “ wit on the sixteenth day of December in the year eighteen “ hundred and nine at the county aforesaid, to a certain Jo- £{ seph Conner, then being constable of the township of Green- ££ wood, in the said county, and also one of the constables of “ the said county of Northumberland, to be executed was de- “ livered, in obedience to which said warrant the said Joseph “ Conner on the day and year last aforesaid at the county ££ aforesaid, proceeded to the dwelling house of the said Ja- ££ cob Langs in the said county of Northumberland. And the “ inquest aforesaid on their oaths and affirmations aforesaid “ do further present, that the said Joseph Conner late of the “ said county yeoman, so being constable as aforesaid, and “ having in his hands the said warrant on the said sixteenth ££ day of December in the year eighteen hundred and nine at ££ the county aforesaid, to do his duty in that behalf totally “ did neglect, and wilfully, obstinately, and contemptuously ' “ did make default, and did omit and refuse to take the said Ja- “ cob Langs, and bring him before the said Thomas Cooper “ esquire, President fudge as aforesaid, as by the said war- “ rant he was commanded, and by virtue of his said office of “ constable, he should and ought to have done, to the great hin- “ drance of justice, in contempt of the laws, to the evil exam- “ pie of all others in like case offending, and against the peace “ and dignity of the commonwealth of Pennsylvania.”</p> <p>The plaintiff in error was convicted upon this bill, and the record of the indictment and sentence removed to this court by writ of error.</p>

IN UK NOR. BY the record of the Common Pleas of Northumberland, which was removed to this court by writ of error, ^ appeared that Shelhamer, the plaintiff below, commenced this action before a justice of the peace to recover a debt of teen pounds nine shillings, for which sum, with six shillings and a penny costs, he obtained judgment.

Although a deputy surveyor is not mtitled by law to the full fees of a survey, unless all the lines are run and marked, yet if an imperfect survey has been ownertvitho^vf objection, and to surveyor, the ÍSSSnish the usual compensation of who performed him'by object1' big- to the manworkvTasdone6 r B ''HIS was an action of indebitatus assumpsit to recover JL from the defendant’s intestate, who was a deputy sur- , „ , , . . . , , r . veyor, the amount or the plaintiff s demand…

f | ''HIS was an appeal from the decision of his honour Judge Brackenridge at a Circuit Court for Northumberland in May 180/. As between a ^resenUitives16 and the sheriff, who sells the execution*^ ^ purchase by the There is no tween^^sheriff and a common righ^of either'6 to become the sale°of the property under his to the effbctof such a purchase quent purchasets without notice.

r | ’’HIS was an appeal from the decision of Brackenridge A J. who refused to set aside a verdict which the jury found for the defendants, at a Circuit Court for Mifflin in June 1808.

<p>THIS was an ejectment for 330 acres of land, which was .tried before the Chief Justice at Sunbury in June last,</p> <p>The testator exif cutors, and gave them power to sell Ws land by tbe following T>>e • “ namely, A, B « f‘d sliaU ' be importerea “ to sell my land, <s ip*c. and to « Tight! When “ raypbu are should “ re™a'?> my (< ^yjjg silílll « keep, &c.” oi t!J.e cxf~ to act. ^ die thority to séU.</p> <p>The lessors of the plaintiff claimed as heirs at law of Barthnlnmmi 7rhnrh moiomew ¿eoacti.</p> <p>^ The defendants claimed under a sale by George Wolf one of the-executors of Zebach; and the questions were 1. Whether Wolf had a right to sell. 2. Whether the sale was fair or fraudulent. 3. Whether the defendants could be affected * by the fraud.</p> <p>In relation to the first question, the evidence was that Bartholomew Zebach, by his will dated the 11th December 1775, appointed George Wolf, Leonard Miller and Godfrey his executors, whose authority over the land in dispute, de- ' " l ' pended upon the following clause: — “ The executors, namely “ George Wolf Leonard Miller and Godfrey Rohrer, shall be “ impowered to sell my land in Shamokin, on Penn’s creek, “ in the old purchase, and to give a good right. When my “ debts are paid, if any thing should remain, my wife shall “ keep two cows &c.” Miller and Rohrer renounced on the 26th December 1775, and on the 15th May 1781, Wolf conveyed to George and Philip Vanheada, under whom the defendants claim, reciting a sale at public auction in pursuance of Zebach’s will.</p> <p>The evidence on the second point, was that one of thfe Vanheadas was the son-in-law of Wolf that the land was sold for only 150Ɩ. continental money, equal to about 5Ɩ. specie,- and that there was personal property sufficient to discharge the testator’s debts.</p> <p>On the third point, there was no evidence but the recitals in the deed to the Vanheadas; and they related only to the source from which Wolf derived his power, the public auction, and the consideration of 150/, which was not stated to be continental.</p> <p>The Chief Justice charged the jury, that in general a power given to three persons to sell, could not be executed by less than three'. But there were exceptions. It had been agreed by the counsel on both sides, that if Zebach had authorized his executors to sell, without naming them in.that part of the will where the power was given, one might sell, although the others renounced. This however, in sound reason, seemed the same as if he had named them; for there could be no doubt that if he had used the word executors alone, he must have had in his mind the persons whom in another part of his will he had named executors. It had also been agreed, that if this power of sale was connected with the office of executors, one might sell, if the others refused. Now the power to sell was by this will attached to the office of executors, because the testator had said, “ my executors, namely A, B, C\ &c. shall be impowered to sell,” and immediately afterwards said, “ after my debts paid,” the remainder of his estate should be disposed of in a certain manner. The proceeds of sale were thus made liable to be administered by the executors in payment of debts, though the will did not say so expressly. It must have been the testator’s meaning. It was the law of Pennsylvania. The case was stronger in this state in favour of a sale by one executor than in England; because in that country lands were not assets after they were sóld, unless the will made them so; but here they were. The Chief Justice upon the whole inclined to the opinion that the executor in this case had a power to sell; but he said he should be well pleased, if on this point the opinion of the court in bank should be taken.</p> <p>The second question his honour left to the jury; and on the third instructed them, that the defendants could not be affected by the fraud if any, because they were in the situation of purchasers for valuable consideration without notice.</p> <p>The jury found for the defendants; and a motion for a new trial being overruled, the plaintiff appealed.</p>

<p>THIS was an appeal from the judgment of the CircuitA Court of Allegheny county.</p> <p>British ante-b^of teKn|a" wAhln the state °f Pennsylvania.</p> <p>It was an ejectment for a tract of land situated in that district of country formerly claimed by the state of Virginia, and afterwards ceded to Pennsylvania by agreement between the two states.</p> <p>The lessors of the plaintiff claimed as heirs of William Jackson who commenced a settlement in the spring of the year 1774 upon the land in dispute, by clearing and fencing a part and planting corn in it, having previously, in partnership with Hugh Sterling who afterwards conveyed his share to Jackson, purchased the right of a certain Sampson.Beaver. In ihe autumn of 1774 William Jackson went to Ireland, with an intention as he said to return the next spring and settle the land; but he did not return until the year 1784. He left it during his absence under the care of Sterling and Beaver,. with a request that they would hire a person to keep possession, and carry on the improvement. In the spring of 1776 Beaver hired a man to maul rails. In the same year the defendant and a man of the name of Deaver came on the land. The defendant prevailed upon Beaver to give him up a bill of sale from Sterling to Jackson which the latter had left in ^is Possess"lon) and a forged assignment was made upon it, by which the title was conveyed to the defendant. Deaver and the defendant appeared in opposition to each other before ^he Virginia commissioners, the defendant claiming the whole land under the bill of sale; but.he was defeated by Sterling, who advocated the cause of Jackson, and told the commissioners that a forgery had been committed. The commissioners decided in favour of Jackson, and granted a certificate in his favour dated 8th March 1/80, at which time he was in Ireland. A survey of 400 acres was made on this certificate on the 4th January 1786. William Jackson died a short time after his return to the United States in 1/84. One of the lessors of the plaintiff, John Jackson, the elder brother and heir at law of William, was born in Ireland before the American revolution, and was never in the United States.</p> <p>The defendant continued on the land from the time he first settled there in 1/76, until the trial, and had made considerable improvements. On the 22d April 1/85 he took out a warrant under Pennsylvania, on which he afterwards had a survey made. In September 1/88 there was a hearing before the board of property between him and Hugh Sterling, the administrator of William Jackson; and the board decided in favour of the defendant, to whom a patent issued on the 6th September 1/88.</p> <p>From this evidence two questions arose: 1. Whether William Jackson derived a good title to the land, from his settlement, and the certificate of the Virginia commissioners. 2. If he did, could that title descend to his brother who was born before the revoluti on, and had never been in the United States.</p> <p>The second question was reserved for consideration in bank. On the first the verdict was for the plaintiff, and a motion to set it aside, heing overruled, the defendant appealed.</p> <p>The cause was argued at September term 180/ by Woods for the plaintiff, and by Poss and Addison for the defendant.</p> <p>On the first question the arguments for the defendant were as follows: By the law of Virginia, William Jackson acquired no right by any thing done before he went to Ireland in 1774; the act of the 3d May 1779, Revised Code 90, being the first' which recognised a title by improvement, and the decision in Jones v. Williams (a) being express, that no right whatever could be acquired in this way, in lands formerly belonging to the crown, until that act passed. This law, it is true, allowed to all persons who had bona fide settled themselves and their families on waste and unappropriated lands before the 1st yan. 1778, 400 acres for every family; but this was a bounty intended for inhabitants only, as appears by the 8th section, and not for absentees. But whatever right this law might have given to those who claimed the benefit of it before it was altered, a law to explain and amend it, which was passed the 4th Oct. 1779, Revised Code 113,introduced an absolute bar to William yacksords claim, by directing that no certificate of right to lands for actual settlement, or of preemption right, should thereafter be granted by the commissioners, unless the person intitled thereto had taken the oath of fidelity to Virginia, or should take it before the commissioners; except in the case of the inhabitants of the territory in dispute with Pennsylvania, who should be intitled to a certificate upon taking the oath of fidelity to the United States, yackson was not an inhabitant. He never resided on the land. He abandoned his improvement. He never took the oath of fidelity. He was in fact an alien. He elected to leave this country at the beginning of the war, and did not return until the end of it. He chose his side as he had a right to do. The defendant ran all the risk and hazard of the war, and is intitled to the reward of it. It is no objection to the defendant’s title, that the commissioners of Virginia preferred yacksords. They exceeded their authority, and their act was void. If yackson’s agent deceived them as to his situation, it was a fraud; if the commissioners knew the truth of his situation, they violated the law. In either case, the certificate and the survey under it were of no effect.</p> <p>On the reserved point it was argued, that by the declaration of independence all the attributes of sovereignty were attached to the states, and all persons out of them hecame aliens. It was the creation of a government by common consent, to which all who were parties to the compact paid a voluntary allegiance, but which neither claimed nor was intitlecl to allegiance from any one residing without the United States. Persons standing in this relation of alienage, have not, by either the law of nature or nations, a right to claim lands by devise or descent. Rights of this kind are wholly dependent upon the positive law of the country where the estate lies; 1 Rutherford's Inst. 109, 110. 118,119; and in almost every quarter of the world, for the wisest reasons, aliens have been excluded from the enjoyment of them. There are then but two inquiries in relation to the asserted right of John Jackson under positive law. 1. Whether by the common law of England, which extends to this state, he is capable of taking by descent. 2. Whether any such right is secured to him by treaty between the United States and Great Britain.</p> <p>1. The common law allows an alien to take by purchase, though he cannot hold; but it precludes him from taking by inheritance. Co. Litt. 2. a. Calvin's Case (a). 2 Black. Camm. 249. Co. Litt. 8. 1 Woodeson 374. He can take nothing by act of law, for want of inheritable blood; and it is wholly immaterial in what relation he stands to the individual who died seised. The son of an alien cahnot inherit to his uncle who was a subject. Collingwood v. Pace (b). The son of an alien father and English mother, cannot inherit from his mother, if he was born out of the king’s allegiance. Doe v. Jones (c). Pie is wholly cut off by the common law from all connexion with the soil of the country to which he is alien, except in a few instances, for thq benefit of trade, or of the sovereign upon office found; and this common law is the law of this state, and the rule in the present case. 1 St. Laws 722, act of 28th January 1777. Morris's Lessee v. Vanderen (d). What then is an alien by the common law? A person born out of the allegiance of the king. In relation to our own government, a person born out of the allegiance of the United States, or considering the recent origin of this government, a person who never owed allegiance to the United States. Surely John Jackson stands in this situation. In order to intitle a person to inherit, he ought in reason to owe allegiance to the sovereign of the country where the inheritance lies, at the time of the descent. The right flowing from the allegiance, they should be contemporaneous. But although this may not be required by the common law, yet it is at least essential that at some period the heir and the ancestor should have owed a common allegiance to that sovereign. The courts of Great Britain hold this to be sufficient, and upon this ground, it is said, allow American antenati to inherit lands in England,, they having once owed allegiance to the king of England. Their courts however require this, and it is the least that can be required. There is otherwise no common tie between the heir and the ancestor. Now it is clear that John Jackson never owed allegiance to the United States, and therefore it is the same case, as though he were a native of France. The whole argument for the right of John Jackson, is founded upon a dictum of the judges in Calvin’s Case (a), that although the kingdoms of Scotland and England should thereafter by descent be divided and governed by several kings, yet all those born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and not aliens. If this means natural born subjects of the British crown, it does not affect the present case, because it applies merely to American antenati; if it means natural born subjects of the future Scottish crown, then it is to be remarked that it is extrajudicial, unreasonable, and almost absurd, because it makes a man a natural born subject of a government, that was not in existence at his birth, nor perhaps for a long time afterwards. This dictum it is presumed is the foundationof the only respectable opinion against us, that of Judge Tucker in his edition of Blackstone. 2 Tuck. Black. App. 53, 54. 61, 6,2.</p> <p>2t There is no treaty between Great Britain and the United States, which gives this right to John Jackson. The 6th article of the treaty of 1783, merely provided that there should be no future confiscations made, nor prosecution commenced against any person by reason of the part he had taken in the war; and that no person should on that account, suffer any future loss or damage in person, liberty, or property. The object obviously was to guard against future penalties and forfeitures; but it has nothing to do with escheats for want of inheritable blood. The losses in contemplation were of property actually possessed; otherwise a man might say he had lost, because he was not allowed to make futur& purchases of land. The 9th article in the treaty of 1794 stipulates that “ British subjects, then holding lands in the territories of the “ United States, should continue to hold them according to “ the nature and tenure of their respective estates and titles, “ and might grant, sell or devise the same to whom they “ pleased, in like manner as if, they were natives; and that “ neither they nor their heirs orj assigns should, so far as might “ respect the said lands and the legal remedies incident “ thereto, be regarded as aliens.” This has no bearing upon, the case of property held in 1784, and escheated at that time, on account of the alienage of the heir.</p> <p>The arguments for the plaintiff were on the first question, that the state of Pennsylvania, by confirming the agreement between the commissioners of jthls state and Virginia relative to the disputed territory, had agreed that in the decision of disputes, preference should bp given to the elder or prior right, whichever of the statesiit might have been acquired under. 2 St. Laws, 208. It was therefore in the first place a question of priority, which the evidence most conclusively settled in favour of William Jackson. To defeat the title thus superior in date to the defendant’s, various objections had been urged. It was said he had abandoned his improvement. This was a question of fact, which the jury could not have decided, upon the evidence, in any other manner than they did. tie left agents to prosecute and defend his settlement. It was said he became an alien!. This also was in some measure a question of fact. He went before the war upon a temporary visit, which was prolonged by the breaking out of the war; and he returned as soon ap the state of the two countries would permit him. It was said that an improvement before 1779 could give no right. But! the act of 3d May 1779 is directly opposed to this doctrine, since it recognises settlement tfnd improvement prior to 1778; and all that is decided by the case of Jones v. Williams is, that until the passing of that act, no right could be acquired by improvement prior to 1779, William Jackson continued an inhabitant up to the time the certificate was granted; and although he did not take the oath of fidelity, yet it is to be observed that the act of 3d May 1779 under which his rights vested, did not require it, and no subsequent law could defeat them by altering the conditions upon which they were to be enjoyed. The certificate of the commissioners of Virginia must have been founded upon this distinction. There is no evidence that it was obtained by deception, though the defendant certainly endeavoured to oppose'-it by a forgery; and under-such circumstances, their certificate has always been considered evidence of title.</p> <p>On the reserved point it was contended that the common law gave, and the treaties between the United States and Great Britain confirmed, the right of John Jackson.</p> <p>i. By the common law. When William Jackson?s right first accrued, the inhabitants of the United States and of Great Britain were subjects of one sovereign. John Jackson at that time could have inherited real estate left by his brother in the colonies, or in other words, he then possessed inheritable blood which intitled him to take his brother’s estate in the colonies by descent. They were born under a common allegiance, which gave to them reciprocally this capacity of inheritance; and the question is in what manner has one of them lost it, while it is agreed, the other would have retained it to this day, had he lived. The inquiry at common law always is, whether the party was alien born; for by that law it is the condition of allegiance in which he .is placed at his birth, that decides his capacity to inherit. Now it is clear -that John Jackson was not alien born. Then how has he lost his inheritable blood? The same law destroys this quality only for the commission of certain crimes, which cannot be imputed to John Jackson. It follows that the inheritable blood remains. Thejudges in Calvin's Case (a), throughout their argument, refer to the state of things at the time of the party’s birth, as fixing his character. “ 1’he time of his “ birth is of the essence of a subject born; for he cannot be a “ subject of the king of England, unless at the time* of his “ birth he was under the legiance and obedience of the king* “ And that is the reason that antenati in Scotland (for that at “ the time of their birth they were under the legiance of ano- “ ther king) are aliens born in respect of the time of their “ birth;” and then the report proceeds to state why such an alien born cannot inherit lands in England, notwithstanding the subsequent allegiance which the antenati owed to the British crown. The common bond of allegiance at the birth makes the inheritable blood. “ Whosoever are born under one “ natural legiance are natural born subjects.” “ Whosoever at “ his birth cannot be an alien to the king of England, cannot “ be an alien to any of his subjects of England.” (25 a.) And “ for as the antenati remain aliens as to the crown of England, “ because they were born when there were several kings of “ the several kingdoms, and the uniting of the kingdoms by “ descent subsequent, cannot make him a subject to that ci'own to which he was alien at the time of his birth, so “ albeit the kingdoms should by descent be divided and gov- “ erned by several kings, yet it¡was resolved that all those that were born under one natural obedience, while the realms “ were united under one sovereign, should remain natural “ born subjects and no aliens.” (27 b.~) This is precisely the present case; and it js upon this principle that American antenati inherit lands in England. This doctrine, it is to be observed, is delivered as the resolution of the judges, and not as the dictum of one or a few, or the argument of counsel; and it is remarkable, as Lord Coke says in the concluding page of his report, that the case was decided without any discordance of opinion, the lord chancellor and twelve judges concurring. It has also been adopted by a respectable judge in our own country, who considers the principle to have been laid down by Bracton, and merely recognised in Calvin’s, Case, 2 Tucker's Black. App. 54.</p> <p>2. By treaty. The same respectable judge holds, “ that “ the common law principle, that the antenati of both coun- “ tries were natural born to both, and as such capable of hold- “ ing or inheriting in both, was revived by the definitive treaty “ ef peace, as it was evidently the intention of the parties to “ restore all individuals to the same condition they were in “ before the war, as far as existing circumstances would per- “ mit, notwithstanding any part which they might have taken' “ either actually or constructively in the war.” 2 Tuck. Black. App. 62. The treaty stipulated that no person should suffer on account of his part in the war, any loss in property; and considering that but for the circumstance of John Jackson’s constructive agency in the war as a British subject, his inheritable blood would have remained, and he would have enjoyed the property in question, he may be said to lose it, if the objection prevails. It seems also by the treaty of 1794, that the right of British antenati to inherit, was taken for granted, because the 9th article stipulates generally for the succession of all the heirs, whether born before or after the peace, of such British subjects as then held property in the United States; that is, it goes so far as to provide for the claim even ofpostnati to the inheritance of such British subjects.</p> <p> Cur. adv. vult. </p>

<p>An appeal does not he from the Common Pleas to the Supreme Court. The act of 11th. March 1809, which authorizes appeals and writs of error from and to the courts of the several counxicSj me ftii s tnux causes shall be removed by one or the other jjnode,according1 pro^eechngS¡n the respective by'^ppeaf'from the Register’s phan’saCourt" and by writ of Quartei°Ses-C sions and Common Pleas.</p> <p>HP HE defendant removed the proceedings in this cause JL from the Common Pleas of Butler county to this court. . . , , . by appeal; and a motion was now made by Baldwin for the plaintiff to quash the appeal, 1 ^ r</p>

<p>IN ERROR.</p> <p>THIS was a writ of error to the Common Pleas oi . g'heny county.</p> <p>auditors of commissioners’ ac~ counts, do not make return of the next term of the Common Pleils aftei\t:,ie Ul0 s^ty days^fter actual notice of su?retum to enter an appeal,</p> <p>Qu. Whether ?,llch Nf,poi'b the office of the pleas>18 a liea upon tiie estate 1uent comrm6' sioner, unless is so filed by au order of the court, and an entry of such der made upon d-°°ketor court minutest</p> <p>T-.,/- . r r By the jirst section of an act oi the General Assembly, passed the 30th of March 1/91, the respective courts of r . . , mon Pleas throughout the state, were enjoined to make an annual appointment of three reputable freeholders to audit 4 4 l and settle the public accounts of the treasurer and sioners of the county, (a) By other sections of the act, very large powers were given to these auditors over persons and papers of both parties and witnesses: and in-order to render 1 1 r , ’ their report effectual against any delinquent officer whose accounts were audited by them, the 5th section contained the following provision: “ That the said auditors having exam- “ ined and settled the said accounts to the best of their skill . . “and ability, shall report the same with the respective “ lances due to or from such commissioners or treasurers, to ’ “ the next county court of Common Pleas for such county, “ who shall thereupon cause such report and settlement to be “ filed among the records of the said court; and such report “ from the time of being so filed, shall have the effect of ajudg- “ ment upon the lands, tenements, and hereditaments of such “ commissioner or treasurer, who shall thereby appear in- “ debted. And if within sixty days after such report made and '•'■filed, the said commissioners and treasurers, their executors “ and administrators or any of them, shall enter their appeal M to the said court from the said settlement or any part thereof, “ it shall be laxvful for the court to direct an issue, wherein “ the commonwealth shall be made plaintiff or defendant, as “ the case may require, to be tried by a jury during the next “ term, upon whose verdict final judgment shall be entered.” 3 St. Laws 34.</p> <p>At June term 1803, auditors were appointed by the Common Pleas of Allegheny to audit the accounts of the plaintiffs in error, who were county commissioners; and they returned a report into the office of the Common Pleas on the 13th of September 1805, on which day the report was indorsed by the prothonotary, “ Filed 13th September 1805.”</p> <p>On the 17th September 1808, the commissioners appealed from this report to the Common Pleas, and prayed the court to direct an issue; but the court quashed the appeal, on the ground that it was too late.</p> <p>It was here, among other reasons, assigned for error, that the report of the auditors should have been made to the next term after their appointment; or if not, then to the next term after the settlement, when it became the duty of the court by a judicial order to cause the report to be filed among their records, from which time alone the sixty days from the appeal would run. But that the present report was not made until more than two years after the appointment, — it did not appear when the settlement was made, and therefore it could not appear that it was made at the next term after the settlement, —it was not made to any term whatever, having been filed in vacation, — and there had been no act of the court upon it. It followed that these irregularities would prevent the sixty days from running at all; at all events they could not ruh until actual notice of the filing had been given to the commissioners, which was not the case here.</p> <p>It was also assigned for error, that it did not appear that the auditors had given notice to the commissioners to attend before them, at the time of the audit.</p> <p>When the case was first opened at last September term, their honours intimated an opinion that to make the filing of the report valid, it should be laid before the court, and an order be given for filing; but whether this had been done in the present case, they were unable to collect from the entry; they therefore recommended it to the counsel to take the record back to the Common Pleas, and endeavour to have it stated therein, whether any such order had been given by the court.</p> <p>At the present term, however, it being understood that the judges of the Common Pleas declined certifying in relation to the fact, this court delivered judgment upon the record as it stood.</p>

IN’ ERROR. THIS was á writ of error to the Common Pleas of Westmoreland, to bring up the record and proceedings in an action of homine replegiando.

<p>a descriptive location, the survey on which. is unreasonably delayed, loses P1'efere’1<;e against a subsequent warrant Wltlx a prior survey, &emdash;against a set-ac«^h"Vl£fore the survey on °,ld- 1<)c.atl0n> &emdash;and against a notorious well estaf>1‘slie<l possession under a subsequent ^“a!niptive Io"</p> <p>Whether s¡dfng°on(Hie tract; can make a le^a!settle' ment by a tenant on another tract, so as to acquire a legal settlement ri°-ht.</p> <p>ght. Whether the Supreme Court can upon an appeal from the Circuit Court, hear°any evidence which was not before the Circuit Court, even though such evidence has been discovered since the trial in the Circuit Court, and its discovery is the ground of an application to the Supreme Court for a new trial.</p> <p>THIS was an appeal from tbe judgment of the Chief Justice at a Circuit Court for Cumberland in'7une 180/.</p> <p>It was an ejectment for a messuage and 240 acres of land, to which the plaintiff claimed title, under an application , , _ ‘ , „ *1 the 8th October 1/66, No. 1499, m the name or James Byers, for “ 250 acres in West Pennsbury township, ..... . _ •' 17 “county, joining lines with John Byers up the south east, “ and 3PCallisteds land on the east.” A survey was made on this application upon the land in dispute, on the 8th of November 1 /8 /, (according to thS return of survey,) by Samuel 7 v ° J, J J deputy surveyor, who stated in a note to the return, that the land was disputed by the heirs “ of William Car others, who “ claimed under warrant to him of 100 acres dated December “ 28,1//0, and an application for 300 acres No. 4993, dated “ 25th May 1/68, and had agreed to refer the dispute to the “ board of property.” On the 15th May 1/68 Byers conveyed to the lessor of the plaintiff.</p> <p>The defendant was tenant to the heirs of William Car others who claimed in part under an application of the 21st May 1768 in the name of William Carothers junior for 300 acres “ adjoining William Carothers, Andrew MiCallister, Daniel a MiCallister, John MiQiure, and Abel MiCallister junior, in <£ West Pennsbury township Cumberland county;” — partly also under a warrant of the 28th December 1770 in the name of William Carothers junior for 100 acres, “ joining land of ££ John Madure, William and James Carothers, in West “ Pennsbury township, Cumberland county;” — and partly upon a settlement by Carothers about the year 1776, or at least upon a notorious possession of the property by him at and after that time, under his descriptive location.</p> <p>The deputy surveyor, who was examined for the defendant upon the trial, could not say how long it was since he had made the survey in the' name of Joseph Byers; there were at that time some buildings on the lower part, some land was cleared, and he thought some persons were living there; but whether under Carothers or not, did not appear. The survey in the name of Byers he said answered the location; and although it might have been laid in a different direction to answer the location, yet it would not have answered it so well; it would not have joined MiCallister on the east. In 1785, when the witness made a survey of some adjoining land for John Reynolds, the land in dispute was claimed by both Carothers and M-Callister.</p> <p>Other witnesses swore that in 1776 or 1777 there was a' cleared field upon the land in dispute, 20 or 25 rods long, and 30 or 35 feet wide, which was in possession of William Carothers who resided on his neighbouring farm.</p>

<p>P' S Tí IS was an appeal from the decision of Brackenridge J-at a Circuit Court for Huntingdon in June 1808.</p> <p>The owner of.a and survey upon' which the purchase money is barred either in law or equity in°^ectment,U'S notwithstaiuibeen adecision against him^by property in consequence ofhis atteiStlie ing upon has Iain byfifteen years after that, during which the party in whose favour the caveat was decided, has paid his purchase money, obtained a patent, and. made improvements on the land. Although the owner of such warrant and survey may quishment. The artual'possesl sion of the land, is no evidence relinquish the land, yet when the purchase money is paid, these circumstances are not sufficient evidence of relinof it, nor can the delay to bring an ejectment be a bar, if it be for a length of time less than that prescribed by the act of limitations.</p> <p>it was an ejectment for a tract of land on Aughwick Creek, in the county of Huntingdon, which the plaintiff claimed un¿[er a warrant of the 31st May 1762 for 200 acres to George Alway, and another of the same date to Nathaniel Parker for fog same quantity, upon both of which the purchase money in part was paid to the receiver of the proprietaries on the jgth June 1762, a survey made upon the land in question on the 8th June 1765, and a return into office on the 23d August following. On the 19th June and 26th July 1762, Parker Alway respectively conveyed to the plaintiff,</p> <p>The defendant’s title commenced with a deed from George Croghan, the proprietaries’ agent for Indian affairs, dated the j4fo ]\yai, 1754 to Casper Devebach and others, who in 1755 J and 1767 assigned to John Switzer. This deed recited a grant to Croghan by the Six Nations of Indians, of a tract situated on Aughwick, and conveyed 1000 acres of it for a valuable consideration to the grantees. On the 15th Dec. 1766, Switzer entered in the land office two applications for 200 acres each, covering the premises in the ejectment, upon which surveys were made on the 24th June 1784. He had previously, on the 5th May 1767, filed a caveat against any 1 J , “ ° , J survey or surveys made for William 1 rent, or any other person claiming under him, or who held in trust for him, or whose names he made use of to cover lands for him on a piece of about 1000 acres called Clark's bottom, and below on Aughwick &c.. alleging that he, Switzer, claimed the land in question by deed from Croghan prior to any person. This caveat was heard before the board of property on the 2d May 1785, a day which had been fixed with the consent of Cox, who was a party to the proceedings, but failed to appear; and upon this hearing, the board decided in Switzer's r L 1 favour, stating that it appeared to them that Switzer claimed under an application of the 15th of December 1766, that he also claimed the same by purchase from George Croghan in the year 1754, that he had made improvements, paid taxes, and been in possession of the land many years. Three days after this decision Switzer paid the purchase money, and on the 7th of May 1785, obtained patents for both his surveys. The ejectment was brought to January term 1800, up to which time Switzer had remained in possession.</p> <p>His honour Judge Brackenridge charged the jury, that there was no evidence of any title to George Croghan from the Six Nations, the recital in his deed to Devebach and’ others not being evidence of that fact; and if Croghan had received a deed from the Six Nations, or any other nation of Indians, it would have been void, as it would have been in violation of law. That deed therefore and all operation of it were to be laid out of the case. The defendant’s title must rest upon his application and possession, and upon the abandonment of the plaintiff. Considering the war, and the impediments in the way of judicial proceedings, he did not think the right of the plaintiff could be considered as abandoned at the time of the decision of the board of property; but it was a lying by, which he could not avoid coupling with the lapse of time after the decision, to raise an equitable consideration in favour of the'defendant. The decision of the board, his honour said, was not final; nor did the law declare that it should be of no consideration. It was not however the weight of this decision upon which he laid stress, it was the plaintiff’s declining to prosecute the claim before the board, suffering the defendant to pay his money, and lying by fifteen years after, while the defendant or those who held under him were improving the land. These circumstances established an equity for the defendant, which ought to protect him. The legislature in instituting the board, spoke of imperfect titles, which must refer to the title short of a patent. His honour considered the title short of the patent, as something short of a legal title, strictly speaking, and as coming under the doctrine of agreements to convey. Here were before the board of property, before the vendors the cornmonwealth who succeeded to the proprietaries, two equitable purchasers. The question was, who should have the legal title. The one declines appearing; the patent of confirmation is given to the other. The other equitable claimant lies by-fifteen j'ears. The person to whom the patent is given, goes on to improve. He has paid a large sum of money» for his patent; shall he in this countr}7 lose the land? Principles of natural equity», moral reason, and public convenience, were against it. His honour therefore gave it as his opinion to the jury, that their verdict should be for the defendant.</p> <p>The juiy accordingly found for the defendant; and the judge refusing to grant a motion for a new trial, which was made upon the ground of misdirection in point of law, the plaintiff appealed to this court.</p>

rY''HIS was an appeal from the decision of Brackenridge -A- J. at a Circuit Court for Cumberland, in May 1809, upon a case, which stated as follows: An agreement was macle he tending claim-bands,… Held: that the sheriff was _ bound to pay mtevestto thesuc, cessful party, from the time the was thus taken, out of bank.

IN ERROR. UPON error to the common pleas of Bedford., the case was thus: A judgment against three defendants, upon a submission to arbitration. by one of them, is erronc ous, and must be reversed as to all. The defendant in error brought an action against the three plaintiffs in error for killing his mare, to which they severally pleaded the general issue in November 1807.

<p>in ERROR.</p> <p>THIS cause came before the court upon a bill of exceptions by the plaintiffs in error, who were defendants below, to the charge of the president of the Common Pleas</p> <p>If a surety makes an agreement with one of two persons the principal will pay one half the debt, he the surety will pay the other half for the other cipal, and the one half is paid by the principal according to the agreement, the surety cannot maintain an action against both principals to recover the part that he has paid. The express agreement prevents the implication of a promise which the law would otherwise make against each principal to indemnify the surety to the whole amount thathe should pay</p> <p>. The plaintiff was bound as security for the defendants m a bond to a certain Peter. Groff, who obtained judgment, and took him in execution upon a ca. sa. While in the hands of the sheriff he proposed to one of the defendants, Duncan, that if he would pay one half of the debt, he the plaintiff, would pay the other half for Keijfer his brother, the other defendant. Duncan accórdingly paid one half, and the plaintiff paid the residue, for the recovery of which the present action was brought.</p> <p>Prior to this agreement, Devalt Keijfer, the defendant, had entered into an article of agreement with Christian Keif fer the plaintiff and two other brothers, by which he agreed to sell and convey to them certain lands at certain prices to be paid in a certain manner, i. e. 250/. to D. Keijfer senior, then they were to retain the money paid by themselves or either of them for him, or due to themselves from him, then to pay all unsatisfied judgments against him in Franklin county, and the overplus, if any, after paying themselves for trouble &c. to return to D. Keijfer.</p> <p>The judge told the jury that they must first ascertain whether the plaintiff’s promise to pay one half for his brother, was an absolute one, there having been some circumstances that gave it a different complexion. If absolute, then they were to consider whether he had at that time any money in his hands belonging to Devalt Keijfer, for if he had none, his promise was nudum pactum. By the article of agreement between the Keifers, the money arising from the sale of the lands was specially appropriated; it was trust money, if any, in the hands of the three Kejfers; and Christian's right to call upon the defendants could not be annulled, and the trust defeated, by treating it as money in his hands alone. If there was any money due to Devalt Keijfer, it was due by all the trustees; and it could not be set off in this suit by Christian alone, against D. Keijfer and another; it therefore was not a sufficient consideration for the promise of the plaintiff, and should have no weight, whatever might be the amount of it. The defendants excepted to the charge, and the jury found a verdict for the plaintiff.</p>

in error. j TPt)N a Writ of error to the Common Pleas of Franklin ^ county, the case was as follows: A leading in-must beo^ected to at the time it is put to the witness. If no then taker^by the opposite par-o-f th e*witnes^to the leading ^ ^ be opposed upon that ground, sition is read upon the time and place of taking deposirule of court, should-have venient-certaintv.

IN ERROR. ILL of exceptions to the-opinion of the Common Pleas ' of Cumberland county. If the defendant ^3 an equitable demand against f„\einstance’a3 bond given by- * and by him in-{o^he defendant, the mü'him either set it off mand, or give it der Xeplea of payment. Itis StXSi'S. should be able sue for the h5s There is nothing in the defalcation act of Pennsylvania set-offeMmrby°1- ug-alnst an executor or administrator.

<p>THIS came before the court by appeal from the decision of the Chief Justice at a Circuit Court for Franklin county in June 1807.</p> <p>The lessors of the plaintiff who were the children of John Findlay the younger, deceased, claimed the premises in the ejectment under the following devise in the will of their grandfather John Findlay the elder, who, it was admitted by both sides, died seised in October 1783.</p> <p>“ I give and bequeath to my son John Findlay, all that “ plantation and tract of land whereon I now dwell, situate in “ Letterkenney township and county of Cumberland, bounded</p> <p>A devise to A fu“ailfe1Sand “ after his decease, if he jawfuWs-" “ sue, to his heirs ‘‘commoT and “their respective “ Ague “for “ever; “but in case he «ouHeaviiTr-111' “lawful issue, “the brother of “AT is only an estate for iife in A 44 &c. containing 400 acres with the usual allowance, &c. to 44 hold to him the said John Findlay, during his natural life, “ subject to one full third part of the yearly rents and pro- “ fits thereof herein bequeathed to nay wife and payable to 44 her yearly and every year during her natural life, together 44 with her other privileges as aforesaid; and after my said son 44 John's decease, if he shall die leaving lawful issue, I give 44 and devise the same' plantation and tract of land to his 44 heirs as tenants in common, and their respective heirs and 44 assigns for ever. But in case my said son John shall die 44 -without leaving lawful issue, I give and devise the same 44 plantation and tract of land to my son James Findlay, to 44 hold to him his heirs and assigns for ever.”</p> <p>John Findlay the son, on the 26th of October 1799, in conformity with the act of 16th January 1799, “ to facilitate 44 the barring of entails,” executed and acknowledged in open court a deed of the premises to the defendant, expressed to be with intent to bar his estate tail therein; and on the same day the defendant reconveyed. On the 23d January 1801, Findlay and wife by articles of agreement with the defendant, granted and sold him the premises, under which articles the defendant received possession in the lifetime of John, and now claimed to hold it against his children.</p> <p>The single question was, whether John Findlay took an estate tail, or merely for life.</p> <p>Upon the trial of the cause, the Chief Justice told the jury that the inclination of his mind was rather in favour of the opinion that John Findlay took only an estate for life; but as it was a question of considerable difficulty, he would reserve the point; and if on mature reflection he should think that John Findlay took an estate tail, a new trial would be granted in case a verdict should be found for the plaintiff, as he thought it ought to be.</p> <p>The jury accordingly found for the plaintiff; and after argument upon the point reserved, which took place before the Chief Justice on a motion for a new trial, he delivered his opinion against the motion as follows:</p> <p>Nothing can be more clear than that the testator meant to give his son John an estate for life only; not solely because he has expressly said so, but because the fee simple which he has devised to his heirs, (that is, his issue or his " children) is inconsistent with John’s taking an estate of inheritance. The issue are to take as tenants in common, which théy could not do, if John took an estate in tail. The intent was, that on John’s death the estate should go immediately either to his issue in fee as tenants in common, or in case there was no issue, then to his son James in fee. It is a contingency with a double aspect, very like the case of Luddington v. Kime, 1 Ld. Ray. 203, and that of Docking v. Dunham, Doug. 25 U It is true, that although the testator intends to give an estate for life, yet if the main and general intent is to give other estates inconsistent with an estate for life, there, the particular intent, being of less importance, shall give way to the general intent. As where there is a devise to A for life, remainder to his issue as tenants in common, and for default of such issue, remainder to B in fee; A takes an estate tail, because the main intent of the testator was, that B should take nothing, until there was a failure of the issue of A. But if A took an estate for life only, his issue would take for life only, there being no words to limit the inheritance to them, and on the death of each of the children his share would go over to B, while the rest of A’s children were living, or even while issue of the deceased child was living; and thus the principal intent of the testator would be defeated. Upon this principle all the cases cited by the defendant’s counsel turn; and therefore they are not applicable to the present case, where the intent to give a life estate to John Findlay is by no means inconsistent with the general intent of giving an estate in fee simple to his children as tenants in common. I am clearly of opinion, that the devise in question passed no greater estate than for life to John Findlay, and that the motion for a new trial should be discharged.</p>

<p>IN this case a iudgment was entered for the plaintiff, in ° e r, ... , , , ~ . , the Circuit Court oí i rankhn county, on the 4th October 1804, with an agreement that the same should be released , „ „ , , ,, , . upon the payment of 6284 dollars 50 cents, due on certain articles of agreement between the plaintiff and defendant for , ir , the sale or a tract or land; 2000 dollars to be paid in two months, and the residue to be paid, one fourth in six months, and one fourth at the end of every succeeding six months until the whole was discharged; execution to stay in .mean time. The whole therefore became due on or before the 4th October 1806.</p> <p>if execution is stayed by the agreement of the parties, the “ year and day mns only from the time when such stay expires; and this, the on the vate arrangement out of court. The court will take of such though noton record,</p> <p>against!Twas assigned to B, íen^to^Tnd^ Active-ch^of agree-!* ment t0 repay day. The court reiusedto stay thiTjud”"ment! j-0 S“'e ,A tilne verdict against ? for damages in consequence of tortious' acts by him m breach of his covenants in the same av-though it would, ill’s claim was for money paid, or any other acble of l‘ISC'Ttín tion.</p> <p>On the 19th March 1805, Dunlop assigned the to Peter Ever ley and James Riddle, in trust to secure to a certain John Sheller the repayment of 1600/. without interest on the 1st of April 1809. On the same day articles of agreement were executed between Sheller and Speer the defendant, by which the former agreed to lend Speer the said sum of 1600/. to be repaid on the 1st of April 1809, without intere st, for the repayment of which Speer was to give approved security; and in consideration of this and of certain agreements and covenants on the part of Sheller, Speer covenanted to pay him 275/. per annum, on the 1st April 1806, and the three succeeding years. Sheller covenanted to serve Speer during this period in the capacity of founder at his ironworks, and that his son-in-law James Moore should serve him in the capacity of a clerk and manager &c., Speer paying him 150/. per annum. Sheller was also to have , tne option of becoming a partner m the ironworks upon certain ... . P . , . terms, alter the expiration or eighteen months.</p> <p>In consequence of misunderstandings between Shelter S'peer, the former did not elect to become a partner; and the 1600/. not being paid, he issued an habere facias in June ... ,. „ , -p p , 1809, which was stayed by judge Tcates, until the further order of this court. •</p> <p>Accordingly the court now was moved to set aside this execution. 1. Because the year and day having elapsed since the stay of execution upon record, viz. the 4th Oct. 1806, the execution was irregular, without a scire facias. 2. Because Sheller having broken his covenant to serve Speer faithfully as a founder, by neglecting his duty, and decoyingaway the servants of Speer employed in his ironworks, (of which an affidavit was filed) the court upon equitable grounds ought to suspend the execution, until the damages sustained by Speer, could be ascertained by a jury.</p>

<p>Thedeclarasurveyor, that he had made a certain survey proprietaries, are not evidence, although he was dead before the trial, and all his official papers had been accidentally burnt, and although in addition to these circumstances, the warrant of acceptance recited that the survey had been made under such an order.</p> <p>Though such a recital is good evidence against the proprietary, it is not evidence against third persons claiming adversely to the survey, by a title commenced before the return of purvey.</p> <p>Title by settlement and improvement, though at different times it has been in some measuie shaken, is now as well established as any species of titl.e in PcuusyIvanici; and very often has been preferred to warrant and survey and patent.</p> <p>General history of improvements given.</p> <p>THIS cause was tried before the Chief Justice, at a Circuit Court for Bedford county in October 1808; and r came before the court, upon an appeal from his decision.</p> <p>By the report of the Chief Justice, the evidence, so far is necessary to understand the decision, was as follows:</p> <p>The plaintiff claimed title under a survey made for George Croghan in 1755, which was not returned to the office of the surveyor-general till the year 1763. On the return of the survey in that year, a warrant of acceptance was Issued, in which jt was recited, that a survey had been made in the year 1755, by John Armstrong, deputy surveyor, by virtue of an order from the proprietaries; and on the 28th of May 1763 a patent issued to George Croghan.</p> <p>About the year 1755 a war broke out between the French and Indians on one side, and Great Britain and her then colonies on the other; in consequence of which the settlements in that part of the country where the land in controversy lies, were broken up; and this war continued with little intermission till after the time of issuing the patent to George Croghan.</p> <p>In the year 1763 the office of John Armstrong, and all his official papers, were accidentally consumed by fire.</p> <p>The plaintiff produced no warrant, prior to CroghajPs survey in 1755; but he offered to prove by the deposition of William Lyon, that the said Lyon had heard John Armstrong (since deceased) declare, that before the said survey was made by him, he had received a letter from the proprietary officers at Philadelphia, ordering him to make surveys for George Croghan, in the Raystown settlement, (where the land in dispute lies) or wherever else the said Croghan should direct. To this evidence the counsel for the defendant objected. The Chief Justice observed that it was a singular case. That in general the declarations of a deceased person were not evidence; but considering that Armstrong had been a public officer, that his official papers had been burnt, and the return of survey had been accepted in the land office, he thought it best to admit the evidence, reserving the point however for the opinion of the Supreme Court, as it was one on which many titles might depend, and seemed worthy of fuller investigation and reflection than it could receive during the trial.</p> <p>The defendants claimed under, and gave evidence of an improvement right, commenced, as they alleged, by Thomas Croyle in the year 1754, and continued with as much perseverance as the war and other circumstances would admit. On the 10th June 1762, a warrant issued to T. Croyle for “ 100 acres adjoining lands surveyed to George Croghan, “ and including'the said Croyle's improvement at the mouth “ of the Snake SpringOn the 4th of March 1768 a süryey was made for T. Croyle on the said warrant, containing 123 acres and some perches, which did not include the land in dispute; but although that survey did not cover the land in dispute, yet Croyle continued to live on the land in dispute, which adjoined the survey; and the defendants gave in evidence the deposition of Adam Croyle, son of the said Thomas, who swore that he was sent when a young man under age, in the year 1762, by his father, to take out a warrant from the land office for 300 acres; and that when he applied for the said warrant, he was prevented from obtaining it by George Armstrong and one Richard Tea, through whom the plaintiff derives his title, and who was then a deputy officer in the service of the proprietaries. That the said Armstrong and Tea alleged that the land had been surveyed for Croghan, and in consequence of their opposition, the said Adam Croyle could obtain a warrant for no more than 100 acres, with which his father was much discontented, and said he would hold all the land, and expected to obtain justice from the proprietaries.</p> <p>There was a large mass of additional testimony on both sides reported by the Chief Justice, but the points of the cause will be understood from this abstract.</p> <p>His honour submitted to the jury three questions on matters of fact. 1. Whether the survey for Croghan in 1755 was made in pursuance of an order from the proprietaries, applying with reasonable certainty to the land id dispute. 2. Whether the settlement of T. Croyle was commenced prior to Croghan's survey; and 3. Supposing it was prior, whether the said Croyle had persevered in the continuance of the said settlement with reasonable diligence, making allowance for the circumstances of the war, and also kept up his claim to 300 acres attached to his settlement; or whether he had not abandoned his claim for more than 123 acres contained in his survey on the warrant for 100 acres taken out in 1762. The Chief Justice told the jury, that if they should be of opinion that Croyle's settlement was prior to Croghan's survey, and that he had not relinquished his right to any part ^ ^anc^ t0 which his settlement intitled him, in such case the defendants’ title was better than the plaintiff’s, and the verdict ought to be in their favour. So also it ought to be in tpe;r favoul-5 although the jury should be of opinion that the settlement was made after Croghan's survey but before the return of it, provided they were also of opinion, that there was no warrant or order from the proprietaries authorizing the said survey, previous to the - making of it. But if they should be of opinion that the said survey was founded on an order or warrant applying with reasonable certainty to the land in dispute, and that it was executed prior to the commencement of Croyle's settlement, in that case the verdict should be for the plaintiff. So also it should be for the plaintiff, if the jury should be of opinion that Croyle's settlement was prior to Croghan's survey, but that Croyle had relinquished his right to all the land, except that which was contained in the survey made on his 100 acre warrant.</p> <p>The jury found for the plaintiff, on which the defendants’ counsel moved for a new trial; and this motion was immediately overruled by the Chief Justice without argument, that the cause might be brought before the Supreme Court.</p>

<p>IN ERROR.</p> <p>r ¡j sHIS was an action of assumpsit in the Common Pleas JL Qf Cumberland, against the executor of Robert Sander- . , , son, upon a promise by the testator to pay the debt ot his gon wbich was due upon a single bill to Clark the testator 1 1 of theplaintiff.</p> <p>If the subscribing witness to a bond is out oj the jurisdiction of the court, and upon diligent inquiry no per-within the jurisdiction who can prove lus handwriting, the handwriting of be^iroved.1 s>u? whether if the the witness is proved, that of ought not to be ;i,so'</p> <p>The declaration set out the single bill; and upon the trial 0f cause, the plaintiff, having proved that the only sub- ... . , scribing witness to the bill had resided about seven years before in Cumberland county, that about six years before she was living in Baltimore, that inquiry had been made for her ¡n Cumberland without finding her, but that no inquiry had been made in Baltimore, and finally that diligent search jia(j been made in Cumberland for some person who could prove the handwriting of the witness but without effect, offered to prove the handwriting of the obligor. But this evidence was objected to, and overruled by the court, who sealed a bill of exceptions, upon which the question came before this court.</p>

<p>RULE to shew cause why the defendant should not be discharged on common bail. °</p> <p>Upon the return of the rule, Wallace for the plaintiff produced a positive affidavit of debt upon a bill of exchange drawn by the defendant at New Orleans, where he resided, upon his correspondent in Philadelphia, in favour of the tiff who was a resident of Pittsburg.</p> <p>The defendant relied upon a discharge from his debts since the date of the bill, under a law of the territory of New Orleans, in the nature of a bankrupt law.</p> <p>if a debtor is discharged from a debt by the law of the state or territory ™ ^ted d the creditor reinfe>msylhim here, the charge himon common bail, if Jj|® debt iras”6 discharged, extends the same u°ens ^of Pessyhania¡ and g^ed thatH* does, until some tothTconirary!'</p>

THIS was an action upon the case against the defendants, for neglecting to effect insurance for 3000 dollars upon the brig Montgomery, belonging to the plaintiff, from Newbern to Cape Francois, with liberty to touch at one or more ports in Hispaniola, against all risks. An agent ne- ' glected to effect insurance according to a letter of instructions which stated that the owner valued the vessel at 4000 dollars, three fourths of which sum he wished to be insured.

Immediately afterspecialbail is entered in . compliance with a notice, either, party is intitled to enter a rule of arbitration, though before the return day of the term of which the suit is docketed. And in all cases a Suit is entered within the . meaning of thé arbitration law, from the moment it is placed on the docket of the prothortbtary.

<p>IN ERROR.</p> <p>THIS was an action of trespass- brought by Seacock the plaintiff below, against the defendants, for taking his goods on two executions. One of the defendants, Kerlin, was the justice of the peace who issued the executions, airother the constable who served them, and two others the plaintiffs in the executions. The defendants pleaded not ... . r ,, 1 “ guilty With leave to justify.”</p> <p>On the trial of the cause in the Common Pleas at Déla-. rvare county, the plaintiff gave the executions in evidence, and the defendants insisted that this evidence justified them, But the court declared their opinion in the charge, that although the constable might justify under the yet the other defendants could not without shewing the judgments-on which they were founded; and they were also of opinion, that in this case the constable could not justify without shewing the judgments, because he had joined the other defendants in their pleas, instead of severing in his defence. 'To these opinions the defendants tendered, a bill exceptions. .</p> <p>The short entryí¿ve to “justify,” by pW ¿°rt™01ea^e" bTconsidered 3. several justification by each defendant.</p> <p>In trespass by the defendant in an execution. against a justice constable Tiul the plaintiffs, der the Warrant j^the judif* mimt, if there t¡ficationby¿ím"</p> <p>Shi- Whether ihc^suFt^ive^^ the justice’s warrant in evistable’is'notjusit:> . pleaded a^'tvs"!fication.</p>

<p>r~|~,HIS was an action of replevin for 58 hogsheads and -*• 830 bags of coffeé, and 23 bales and 3 bags of cotton. The cause was tried before the Chief Justice at a Nisi Prius in March last, under the plea oí property, when the jury found a verdict for the plaintiff, 19,296 dollars 27 cents damages; and now upon a motion by tbe defendant for a new trial, the case from the report of the Chief Justice appeared to be as follows:</p> <p>Thejurisdiction of a foreign court may be examined, not only as to the authority under which it is erected, but as to the subject over which it is exercised; but if tlie court is duly constituted, and has jurisdiction over the subject, its decrees in rent the subject, its cannot be recoui't of another1 vised by the ^ nation.</p> <p>The arrétés of' the French consuls and commanders in St- Domingo, interdicting trade with the blacks of that island, are not shnply°asS'mmi-an cipallaws, but wiUi T'stSeof war with reVoltéd subjects; and it- is- therefore competent to France to vindicate those laws, upon the ocean, beyond tile limits of her own terrilory. But supposing them to be purely municipal, there seems to be nothing in the law of nations to prevent any sovereign from punishing- the violation of his penal municipal laws, by seizure on the high seas, out of his own territory, and not within the territory of any other sovereign.</p> <p>The decree of a foreign prize tribunal of general jurisdiction, condemning property for having been concerned in the violation of law, is conclusive upon the point that the seizure of the property was made in conformity with the law, it being- a matter within their jurisdiction to decide.</p> <p>It is not necessary in order to give jurisdiction to a prize court, that the property captured should liave been brought within the dominions of the captor. Seizure and safe possession are all that arc necessary to give jurisdiction, and whether the possession be within the dominions of the captor, or of a neutral, is immaterial. The possession of the particular captor is the possession of his sovereign every where. And although the property has been sold as perishable goods by the prize agent with whom the papers were deposited by the captor, and taken into the neutral country of the owner before condemnation,' still the condemnation is valid, and confirms the original taking.</p> <p>A court of common law has no jurisdiction of a cause whose object it is to recover property taken and condemned as prize, for having contravened a law of France interdicting trade with her revolted subjects in Saint Domingo-</p> <p>The plaintiff, a citizen of the United States residing in New York, chartered the schooner Mars, captain Hammond, jp)ecemj)er iqo3, for a voyage from New York to Jeremía in the island of Saint Domingo, and back. On the 5th oijanuary 1804, the schooner arrived at Jeremie, where she sold her outward cargo, and took on board a quantity of coffee and cotton for the plaintiff’s account, with which she sailed for New York on the 2d of February. On the next day, when the Mars, according to the captain's protest, was about five leagues distant to the northwest of Cape Donna Maria, she was captured by two French privateers, who, after taking out the captain, supercargo and crew, and sending them in. American vessel to Jamaica, put two prrzemasters on board the Mars, and ordered her to St. Jago de Cuba. ThesuPercarS'° die Mars proceeded from Jamaica to St. Jago, where he arrived on the 25th of February, and found the Mars lying at anchor completely unloaded, but saw rió part of the cargo. He then sailed for Philadelphia, where he arrived the 11th of April, and about two days after his arrival found a part of the cargo of the Mars at an auction store, to which it had been sent by the defendant, and where he finally identified by the marks and numbers, notwithstanding an effort had been made by some person to efface them, 47 hogsheads and 733 bags of the coffee he had shipt on board the Mars at Jeremie. The plaintiff then instituted this action.</p> <p>The defendant admitted the 47 hogsheads and 733 bags of coffee to have been part of the cargo of the Mars, and claimed it as his own property under the following evidence:</p> <p>In the same month of December 1803, the defendant, a citizen of the United States residing, in Philadelphia, char-, tered the schooner Ttvo Brothers for a voyage to St. Jago de Cuba and back, and despatched her to that'port in the beginning of January, with a cargo of dry goods &c. on his own account. She arrived at St. Jago in sixteen days, where she sold her cargo; and the laws of Spain there in force, not permitting a foreigner to carry on trade and merchandise or to buy and sell himself, but obliging him to employ a resident merchant, the supercargo employed as his factor one Don Augustin de la Texera, in whose name he purchased on the 14th of February a return cargo of coffee (the property in question) cotton and segars from two merchants ofYí. Jago, and paid for it with the proceeds of the outward cargo. The supercargo swore that the coffee and cotton See. were shewn to him in the stores of the merchants where they were purchased, and were brought in canoes from the shore to the schooner which sailed with them for Philadelphia about the 20th of February; that he did not understand when he purchased them, that they proceeded from an American or other prize, nor did he understand or hear any thing tending to create a doubt or suspicion of the title of the persons who sold the same, but made the purchase fairly and bona fide, in the usual mercantile manner, and in the regular course of business.</p> <p>The defendant then gave in evidence the following order of sale, by John Baptiste Audib'ert, together with the certificate of the American consul at St; Jago, that Audibert was, by the people of the French nation in St. Jago, ac- ' knowledged as commissary of the French Republic, in which capacity he acted in that city.</p> <p>“ 18th Pluviose, ) Year 12. J In the name of the French govefnment. Extract from the minutes of the agency of the French government for the island of Cuba.</p> <p>“ I Jean Baptiste Audibert, commissary of marine, and French agent for the island of Cuba, having the charge of bringing suits incases of prize in this island,—</p> <p>a Considering the request made to me by the citizen Pierre Descombre, prizemaster of the American prize called the Mars, for authorizing the sale of the merchandise belonging to the said schooner Mars of New Fork, commanded by captain Ansel Hammond, captured by the two French privateers, the Coquette, captain Bouchet, armed for a cruise in virtue of a commission granted by the captain general of Guadaloupe, on the 16th Frimaire of the present year, and the Serpent, captain Anderson, armed in virtue of a letter of marque dated the 17th Fructidor year 11, granted by general Rochambeau, captain general of St. Domingo,-—</p> <p>“ Considering that the said request is founded on the damaged state in which the said captured schooner is at present, that she takes in so much water as to make it feared that the goods on board said vessel may be damaged thereby, which I myself have ascertained by going on board said prize, and by the examination made by me in the damaged parts of the said vessel,—</p> <p>“ Considering that while waiting for the definitive judgment which shall be pronounced on said prize by the competent tribunal, it will be for the mutual benefit both of the captors and captured, that a measure for the preservation of their interests should be taken, to prevent the waste in the merchandise of which the cargo of the said schooner Mars is composed, and that a prompt sale of those articles, is a matter of material consequence to either party,—</p> <p>“ In virtue of the poxuers vested in me by my government, and in conformity with my instructions, which authorize me to permit the sale of the cargoes of vessels captured from the enemies of the Republic, and of those found contravening the laws upon the coasts 0/Saint Domingo, -without waiting for the definitive sentence,~—</p> <p>“ And in consideration of the urgent motives aforesaid, as well for the interests of the captors as for those of the captured,—</p> <p>“ I authorise the said citizen Pierre Descombre, the prize-master having charge of the American prize called the Mars, to sell for cash to the highest and best bidder, the cargo of the schooner Mars, proceeding from New Tork, and captured in consequence of having had communication and traded with the brigands of St. Domingo,-—</p> <p>“ On condition that the said citizen Pierre Descombre, shall deposit the sums arising from the said sale in the hands of the citizen Dallest a French merchant established in this city, there to remain until the definitive sentence be pronounced, in order that the same may be delivered. to the parties whose claim may be substantiated before the tribunals.</p> <p>“ Given at St. Jago de Cuba, 18th Pluviose, year 12 of the French Republic}’ [6th February 1804.] “ Audibert.”</p> <p>He also gave in evidence the following decrees, condemning the cargo of the Mars as prize to the captors:</p> <p>“ In the name of the government. The provisional commission of justice established at Santo Domingo, deciding in the first instance in cases of prize, in virtue of the arrété of the consuls of the republic of the 12th Vendemiaire year 11, [4th October 1802] on ,captures of vessels found contravening the laws and regulations concerning French commerce, and that of foreigners, with the French colony of St. Domingo * has pronounced the following judgment;—</p> <p>“ Having seen the documents produced in favour of the validity of the prize, in the suit instituted by the citizen Audibert, French agent at the island of Cuba, at the request of the owners of the French privateers, the Coquette, captain Eouchet, and the Serpent, captain Anderson, that the capture by them made of the American schooner Mars, captain Ham* mond, should be declared gqod and legal, which documents are as follows; [Here followed a list of the documents of vessel, cargo &c. &c.]</p> <p>“ Considering that it results from all the papers of the schooner Mars, that captain Ansel Hammond has communicated with the rebels of St. Domingo, and that'he has traded with them,—</p> <p>“ Having seen the 4th article of the aírete of the captain general of the 17th Vendemiaire, year 11, [9th October 18Q2] as follows — “ All coasting or other vessels, found communica- “ ting with the places on the coast occupied by the rebels, shall “ be seized, and the vessel and cargo confiscatedf—</p> <p>“ Having also seen the first article of the arrété of the captain general, dated the 10th Ventóse last, [1st March 1804] as follows: “ The port of Santo Domingo is the only one in u the colony of St. Domingo open to French andforeign com- “ merce. Consequently every vessel anchored in the bays, creeks u or landings on the coast in the possession of the rebels,— “ those going to ports in their possession, or returning from the same, with or without cargoes, — and generally every “ vessel under sail within the territorial extent of the island., “ (except from Cape Rafael to the bay of Ocoa) which may “ be found at a distance less than two leagues from the coast, “ shall be seized by the vessels of the government, and by the “ privateers bearing out letters of marque, who shall bring “ them as soon as possible into the port of Santo Domingo, in u order that the confiscation of the said vessels and cargoes maj'/ “ be pronounced?</p> <p>“ The provisional commission of justice, acknowledging the correctness of the arguments of the commissary of govern» ment, declares and adjudges, that the American schooner Mars, of New Tori, captured by the French privateers the Coquette and the Serpent, with a cargo of cotton and coffee, coming from Jeremie, is a good prize, and is confiscated for the benefit of the captors. In consequence whereof, that the said schooner, her tackle and apparel and cargo, shall be sold in the usual manner, in order that the product arising from the said sale, may be divided between the captors, a deduc» tion being first made from the whole, of the judicial charges and duties to the republic. Which shall be executed, saving the right of appeal.”</p> <p>“ Thus done and adjudged at Santo Domingo in the hall of justice, at a public audience on this day the 1st Thermidor, 12th year óf the republic.” [20th July 1804] Rigaud, Coca, Franco, Lavistida, Marie, members. Lemaire Secry.”</p> <p>“ In the name of the French government. Sitting of the 7th Thermidor in the 12th year of the French republic, (26th Jidy 1804) presided by general Ferr and, captain general and commander in chief of the island of St. Domingo, at which were present the citizens Dubuisson &c.”—</p> <p>“ The special commission of appeal in matter of prize, established by the arrété of the general in chief, Ferf and, captain general,bearing date the 6th Nivase last, (28th December 1803) conformably to the arrété of the consuls of the French republic of the 12th Vendemiaire 11th year* (4th October 1802) to decide definitively on the appeals from the judgments given in the first instance by the provisional commission of justice, sitting in the city of Santo Domingo, concerning the prizes made by the vessels of the state and the. French privateers, on neutrals taken and suspected to b'e acting in contravention of the laws and regulations concerning the French and foreign commerce,—</p> <p>“ In the suit appealed from, instituted at the request of the owners, captain, officers, and crews of the French privateers La Coquette, captain Bouchet, and Le Serpent, captain Anderson, petitioners for the validity of the prize of the one part, against the captain and owners of the American schooner Mars of New York, Ansel Hammond, master, captured by the said privateers, absent defendants of the other part, — ■ Present, commissary of the government for the greater regularity of the proceedings in the cause, and for the preservation of the interest of whom it may concern,</p> <p>“ Has given the following decree.</p> <p>“ After having heard the report of citizen Saint Paul, judge reporter of the said" commission, together with the opinion of citizen Daubermont,. marine inspector, acting as agent of the government,—</p> <p>“ Having seen the documents of the said suit to the number of 24, together with the judgment given the 1st Thermidor instant (20th July 1804) by the provisional commission of justice sitting in this city, on the report of the citizen commissary of the government, and the appeal from the same,, dated the same day; the whole seen and maturely considered,—</p> <p>“ Considering that it results from all the ship papers of the schooner Mars, that the captain Ansel Hammond has communicated and traded with the rebels of St. Domingo,—</p> <p>“ Having seen the fourth article of the arrété of the captain general Le Clerc, bearing date the 17th Vendemiaire 11th year, 9th October 1802)—</p> <p>“ The special commission decreeing on the appeal from the judgment given by the provisional commission of justice the 1st Thermidor instant, (20th July 1804) and acceding thereto, does declare the American schooner Mars, to be good and'lawful prize, affirms the judgment given, and dismisses the appeal as unfounded. In consequence it is decreed by the court here, that the same shall be intirely executed, and that all costs of suit, as well in the first instance, as in the appellate cause, shall be deducted out of the proceeds of the sale of the schooner and cargo in question, conformably to the marine ordinance of 1681, and the arrétés of the.council of •state of the 8th March and 23d December 1705.</p> <p>“ Moreover it is decreed that an exemplification of the present judgment shall be addressed to the commissary of the government near the provisional commission of justice, to be by him transmitted to the agent of St. Domingo at St. fago de Cuba, who is charged with its execution, and to see that as well the duties due to the government, as the charges and costs arising to the provisional commission of justice, and to the special appellate court, be duly paid.</p> <p>“ Done at Santo Domingo in the hall of the government, the day month and year as abovesaid. Ferrand, president, Auger, secretary.”</p> <p>At the instance of the defendant’s counsel, two points'were reserved at the trial, by the Chief Justice. 1. Whether the protest of the captain was competent evidence;* 2. Whether this court had jurisdiction of the case, it being connected with asserted matter of prize.</p> <p>On the general question, it was contended for the defendant, that the property was devested from the plaintiff, and transferred to him; 1. By the operation of the Spanish law upon his bona fide purchase at St. Jago, without notice of the plaintiff’s claim.* 2. By virtue of the decrees of the courts of -St. Domingo, and the order of their authorized agent.</p> <p>The plaintiff in answer to the first point denied the bona fit des altogether; and contended, that if it existed, the Spanish law did not give the defendant a right, at the same time denying that the Spanish law was the rule; and 2dly, that the capture having been made more than two leagues from the coast of St. Domingo, for the breach of a municipal regulation, the sale not having been ordered by a court of competent authority, and the res not being within the dominions of the captor at the time of the condemnation, and never having ' been within them, the capture, sale and decrees did not devest the plaintiff’s property.</p> <p>The Chief Justice charged the jury in substance as foi* lows: The plaintiff having proved his property, it lies on the defendant to shew in what manner it has been devested, and transferred to himself. This he has undertaken to do in two ways. 1. By virtue of a bona fide purchase without; notice of the plaintiff’s claim. 2. By virtue of the orders and decrees of the French court of Admiralty, and its agents.</p> <p>1. The title by purchase is founded on the Spanish laW$ of which the defendant has offered evidence. To this the plaintiff objects, in the first place, that the matter is not to be decided by the Spanish law, but by the law of the United States, of which both plaintiff and defendant are citizens; and he says further that the defendant has not proved the Spanish law to be as he alleges. It seems to me that the case must be governed by the Spanish law, because the contract for the purchase of the coffee was made within the dominions of Spain. It is a general principle that contracts are to be construed according to the law of the country where they are made; and this principle is founded on reason and convenience. It would produce great confusion, if the owner of personal property, fairly acquired according to the laws of the country in which it was situated, should, on its being removed into another country, be devested of it, because he had not acquired it according to the law of the country into which it was removed. It has indeed been decided, that if a contract is made in one country, with a view to violate the laws of another, the courts of justice of the country intended to be injured, will afford no relief for the purpose of carrying such contract into effect. A contract, for instance, made in. France for the sale of goods, with the express purpose of smuggling them into England, would receive no countenance from the courts of justice in England. This is an exception to the general rule, founded on strong motives of policy. But there is no analogy between that case and the one before us. There is no law or policy of the United States or the state' of Pennsylvania, which is violated, by one of our citizens going to the West Indies, and there purchasing goods which have been condemned as prize, and importing them into this country. It is our interest, that property acquired by our citizens in the fair course of trade abroad, should be enjoyed without molestation at home. No authority has been cited by the plaintiff to warrant this objection, and I am of opinion that it cannot be sustained. We come to the question then, what is the law of Spain? On the present occasion, we can only know that law by the evidence which has been produced. The defendant has brought forward the evidence of Mr. Moreau dc Lislet, who is now a judge of the parish of Orleans, in the territory of New Orleans. The plaintiff has remarked, that it is singular the defendant should have rested this matter on the testimony of one man. But it may be remarked in answer, that it is more singular still, that the plaintiff should have produced no testimony at ■ all on this subject. There has been time enough to produce counter evidence, and as this has not been done, and the character of Mr. Moreau stands unimpeached either with regard to integrity or legal knowledge, we must suppose that he has spoken the truth. It is his opinion, and he gives the authority on which he founds it, that by the law of Spain, a good title to merchandise may be acquired, by a purchase made fairly and openly, in the usual course of business, from a person who usually deals in the kind of merchandise thus purchased. If this be the law of Spain, it is contrary to our own law, to the law of France, of England (except the city of London, and sales made at fairs and in open market) and to the Roman or civil law, which prevails in most countries of Europe. Supposing it however to be the law, it is essential to this kind of title, that the purchase be made with perfect good faith, without the least mixture of fraud, collusion, or artifice. To apply it to the point in question. If the agent of the defendant had any knowledge that the coffee had been captured, or if without- having certain knowledge he had heard reports on the subject., sufficient to put a prudent man on his guard, he acted at his peril in making the purchase, and must abide by the consequence. But if, without knowing, or having reasonable cause to suspect the manner in which it had been brought to St. Jago de Cuba, he purchased it in the open and usual course of trade, out of the store of a person who was accustomed to deal in that article, I am of opinion that according to the evidence which has been given, the defendant acquired a good title, and the verdict should be in his favour.</p> <p>2. If the jury should be against the defendant on this point, his second ground of defence Is to be considered; the proceedings in the court of Admiralty. The jury will in the first place consider, whether they are satisfied from the evidence, that the capture was made at the distance of more than two leagues from the island of Hispaniola. If they are not so satisfied, the decree of the French court of Admiralty is supported by the opinion of the Supreme Court of the United States in the case of Hudson v. Guestier, 4 Cranck. 293, with which I concur; and the verdict should in that case be for the defendant. The fact, as to distance, depends on the protest of the captain. I submit it to the jury without any remark. It is for them to decide, If they are of opinion, that the capture was at the distance of more than two leagues from the coast of Hispaniola, the case is precisely the same as that of Rose v. Himely decided by the Supreme Court of the United States. The opinion of that court was, that the French court of Admiralty had no jurisdiction, and consequently no title could be acquired under their orders or decrees. In this decision are involved very important questions, concerning some of which, notwithstanding the great weight of the authority, I cannot say that my mind is fully satisfied. I think it most prudent however to advise the jury, to take the law as laid down in the case of Rose v. Himely. At the same time, I desire it to be understood, that I take for granted this case will be brought before the court in bank, and that I reserve to myself the liberty of forming my final opinion on more full deliberation than a trial at Nisi Prius admits. On this last point then, if the jury should be of opinion, that the capture was at the distance of more than two leagues from the shore, I request them to find for the plaintiff.</p> <p>The motion for a new trial, together with the reserved points, were argued at last March term by Duponceau and Lewis for the defendant, and by Condy and Rawle for the plaintiff.</p> <p>For the defendant, it was contended, 1. That the protest was not evidence in this suit. 2. That this court had no jurisdiction of the cause. 3. That by the law of Spain, a bona jide purchase of merchandise vests the title, and hence the verdict of the jury was against law. 4. That the verdict was also against law, because the defendant had a valid title under the capture, sale, and condemnation.</p> <p>1. The first point was argued upon the same ground which was taken at the trial, and has been already noticed, (a)</p> <p>2. Upon the second, the argument was in substance this: A court of common law is not competent to try matter of' prize, spoliation on the high seas, piracy, or the validity of a foreign sentence of admiralty; nor can it entertain jurisdiction of a case, in which one of these points must be decided. The reason is an obvious one. Cases of this sort always involve the responsibility of governments. They are to be settled according to the law of nations; and they therefore should be tried only in a court proceeding according to that law, and intrusted by its own sovereign with the adjudication of those causes, which uniformly concern the sovereign authority of another nation, and may intimately affect the public relations of the country. Accordingly at an early period, and while the common law courts were very tenacious of their power, it was held by them, that the Admiralty alone could try the question of piracy. Case of the Admiralty, (a) Upon the same principle a prohibition was refused to stay a suit in the Admiralty against the vendee of goods piratically taken at sea; Anon. Cro. Eliz. 685; and the reason given for it in PelagVs case, (b) where a like application was refused, was, that if granted, there would be no remedy for the owner, who could not proceed in a court of common law. Whether piracy or not, may depend upon the validity of the commission under which the capture is made; and whether valid or not, is a question which a municipal court is not competent to decide, so as to affect the question of property growing out of it. In like manner a prohibition to the Admiralty was denied, solely on account of the question of prize, notwithstanding the plaintiff in prohibition shewed, that the captor and the ship taken, both belonged to England, and of course the taking was a mere trespass. Tompson v. Smith, (c) It is of no consequence that the matter attempted to be tried in the common law court, is not the direct question of prize between the captor and captured. If It is a controversy between other parties depending upon the question of prize, or involving the validity of a sentence of Admiralty, Radley v. Egglesfeld; (d) if the principal matter is a taking at sea, though at the same time, the immediate foundation of the rights of one party “ is a transaction on land; The King v. Broom, (a) Tompson v. Smith, if the injury done, or the claim set up, is one of the consequences or incidents of a taking as prize, Le Caux v. Eden (b), Doane’s Admr's v. Penhallow (c), Ross et al. v. Rittenhouse (d), Smart v. Wolfe (e), the question is exclusively triable in the Admiralty, according to the law of na» tions, and not in a court which proceeds according to the rules of the common law. Indeed so far has this jurisdiction of the Admiralty been respected, that in Vanderwoodst v. Thompson, cited by Buller J. in Le Caux v. Eden, it was held that an action would not lie in the common law court for a trespass in entering the plaintiff’s ship on the high seas and taking his goods, because there was reason to suppose, as was said, by Gould justice, that the ship was .a pirate. It is essential that questions of this description should be subjected to the decision of some forum, governed by the same rules in all countries; and it is worthy of remark, that in the celebrated answer to the Prussian memorial, Great Britain justified the reprisals she had issued against Spain on account of captures at sea, partly upon the ground that those captures were judged of in revenue courts, and not in courts of Admiralty according to the law of nations. 1 Magens 506. In the pi-esent case the taking was as prize. The court at St. Domingo, upon the face of the decree, proceeded as a prize-court, though it also had instance jurisdiction. The court of appeal is styled “ the special commission of appeal in matters of prize;n and the schooner Mars and cargo were condemned as prize-, and ordered to be distributed according to the ordinance of 1681, which has a title on prizes of war, and no other. It is impossible to hold plea of this suit without examining the proceedings of a court claiming to be a prise-court, or without directly deciding the question of prize or no prize, against all the authorities cited. Judge Washington, in Snell v. Foussat, was of opinion that the District Court alone had jurisdiction; but owing to a compromise, the point was not finally decided in the Supreme Court. Indeed in none of the analogous cases, which originated on the common law side of the Circuit Court, and were after--wardá carried to the Supreme Court} was the point so made as to obtain a decision.(*)</p> <p>3* The law of Spain was the rule of the contract made by the defendant’s supercargo with the possessors of the coffee at St. Jago. It is not merely upon the question of construction that this law may be cited, but also upon the question of validity. If the contract is valid by the lav? of the country where it is made, it is so in all countries, unless it is made with intent to violate the law of another country, in which case the courts of that country will not aid it. Robinson v. Bland, (a) And although the contract may be void by the law of the country where sued, it does not exempt the party who impugns it, from the necessity of shewing as a fact that it is void in the country where made. Male v. Roberts, (a) The lex loci applies emphatically to contracts of sale. As it is said by the court in Grant v. M'Lachlin (b), “ a sale according to the law of the place where the “ property is, must vest a title in the purchaser, which all “ foreign courts are bound, not only from comity, but on “ strong grounds of public utility, to recognise. Without “ this rule, there could be no safety in derivative titles.” Sir Wm. Scott, in the case of the Helena, (a) carries this principle to the extent of protecting the bona jide purchaser of an English ship captured by an Algerine corsair, and sold by the Dey without any judicial proceeding whatever. He presumed the sale was made regularly in their xvay. The testimony of Judge Moreau, and the citation from the Curia Philipica, shew that a bona jide purchase of merchandise fi’om a person who deals in the article, vests a title by the law of Spain; and the evidence of the defendant’s supercargo establishes the good faith, and the fact of purchase from merchants in the regular way of business. The jury have made rash presumptions of the supercargo’s knowledge, from his being at St. Jago when the Mars arrived, from the population of that city, and from its being a place of rendezvous for French prizes. They have found against evidence as well as law.</p> <p>4. The defendant has a title under the capture, sale, and condemnation, which cannot be defeated, if the court of Santo Domingo had jurisdiction; for where the proceeding is in rem, it never has been questioned that all the world are bound as to the property in the res, provided the court has authority to decide upon the case. What then are the objections to the jurisdiction? 1. That the Mars and her cargo wex’e never within the dominions of France. It is not necessary that they should have been, by the law and practice of nations; of France since the year 1663, of England, since the time of king William. ,As early as 9 W. 3., a vessel captured and carried into a river oxi the coast of Africa, was condemned in the Admiralty of England, and effect was given to the condemnation by the Kings Bench. The King v. Broom, (b) In 1745 the English Vice-Admiralty at Gibraltar held plea of a prize taken by an English privateer, and carried into Lisbon, a neutral port, where she then lay. Pond v. King, (c) Sir William Scott, while advocate-general, argued in the case of Smart v. Wolfe, (d) that by the capture . the thing was acquired to the state, and though put into the hands of the captors., remained in contemplation of law in the custody of the public; and that the Admiralty had therefore jurisdiction of the subject, wherever the thing might be in the possession ofthe captors or their agents. In confirmation of the doctrine he mentioned several cases, in which the Admiralty exercised this jurisdiction, although the thing was either sold, or situated in a neutral country, particularly the case of the Buoen Consaga, an English prize taken into Lisbon, and condemned in England-. In the case of The Herstelder, (a) however, he for the first time expressed dissatisfaction at the practice, and said he would not condemn a vessel lying in a neutral port; and in the Flad Oyen, (b) though he admitted there had been some cases of condemnations in England of British prizes carried into Lisbon and Leghorn, he said the infrequency shewed the irregularity of them, and he endeavoured to justify these cases by treaties, which had given to Lisbon and Leghorn the character of British ports. But finally he was compelled to return to his first opinion; for in The Henrick and Maria, (c) where the point was directly in question, and was fully investigated, he referred to a vast number of cases in which the practice had been followed, and although he argued against it, said it was too inveterate for him to shake. His judgment was affirmed in the court of appeals, (d) where it was shewn to have been the practice in the war of 1756; it was followed in the case of La Dame Cecile (e) in 1806; it has the complete sanction of most if not all the nations in Europe; and has been recognised by the highest judicature of our own country in the case of Hudson v. Guestier. (f) The sale before condemnation does not alter the case; since the vendor was the authorized agent of prizes, and the vendee was his representative until condemnation, which confirmed all the preceding acts. 2. Another objection is, that the seizure was made, according to the captain’s protest, more than two leagues from shore, which is supposed to, have been the jurisdictional limit of seizure, according to the arrété of the 1st March 1804. This however is a plain misconstruction of the arrété; for the circumstance of being within two leagues of the coast, is the offence, and not a limitation of the place of seizure. After it is committed, it may be punished by seizure any where upon the high seas, the common jurisdiction of nations. The offence alleged against the Mars, was her communication with the brigands, not that she had been found within a certain distance of the coast. But supposing the place of seizure to be material, the sentence is conclusive upon, the point, that the seizure was duly made. Every thing constituting the validity of a prize, is within the cognisance of a prize-court; and therefore to say that the prize is not Valid because the seizure was not made in the right place, is to open a door for the revision of the sentence in all its parts. The lawfulness of the capture as to locality, is as much within the jurisdiction of a prize-court, as its lawfulness for any other cause. It is a point which has been directly decided by the court at Santo Domingo. But in reply to this it is said, that the law was a municipal law only, and that for breaches of municipal law there can be no seizure extra territorium; of course, that this fact is connected with the question of jurisdiction. It cannot-be called a municipal law, solely, because it was made in execution of a belligerent right, and the aggressors against it were threatened with punishment for violating the laws of nations. If however it was, what shall prevent a nation from, punishing the violation of her municipal laws, by a seizure on the ocean? She invades the territory of no other nation; but on the contrary is on that highway which is common to all, and where she is therefore as free to act as upon that which is separately her own. Accordingly all nations authorize seizures beyond the marine league, in vindication of municipal laws. Great Britain by her hovering acts directs them at a distance of more than four leagues, if the offender has been within four. 24 G. -3. c. 47., 10 and 11 W. 3. c. 10. The United States authorize their revenue-cutters to board vesselá any where within four leagues of the coast. 1 U. S. Laws 236. Great Britain took all vessels coming to this country during the revolutionary war; and the United States seize on the high seas all vessels of their own ■ citizens violating the laws of non-intercourse. It is the law and practice of nations, and is not to be disturbed. The case of Rose v. Himely (a) is not an authority for the position that the place of seizure is material. A majority of the five judges who ruled that case, went upon the ground that the property had never been taken within the dominions of the captor; and this opinion being overruled in the case of Hudson v. Guestier, (b) which was argued at the same time, that cause was remanded to the Circuit Court, where it was again tried, and the jury instructed that the distance from the shore at which the seizure was made was wholly immaterial; and a bill of exceptions having been taken to this opinion, it was carried to the Supreme Court, where the judgment was affirmed at the last term. So that Rose v. Himely has been overruled throughout.</p> <p>For the plaintiff, the argument upon the competency of the protest was the same as at Nisi Prius.</p> <p>2. Upon the second point, the jurisdiction of this court, it was argued that unless the jurisdiction was sustained, the plaintiff was without remedy. The question of prize or no prize is not triable in the Admiralty, more than in a court of common law. It is triable only in the prize-court, which acts by special commission, is the court of an actual belligerent to try the validity of its own captures, and exists only in time of war. Lindo v. Rodney, (c) As to the subject matter, courts of admiralty and of common law have a coextensive jurisdiction. A prize-court differs from both as to the subject, and draws to itself the exclusive consideration of captures in right of war. But the United States have no such court. The District Court has jurisdiction as a court of Admiralty, but not as a court of prize; and if we can try the present question only in a court of prize, there is no forum for the trial of the case in this country. This however cannot be. It would expose our citizens to the grossest wrongs. As a neutral w'e never can have a prize-court to try the validity of British or French capture?. We never can require it, because we capture nothing, and there cannot be made any captures of our property, jure belli. Every question of property in our country between our own citizens, must be triable in our courts of Admiralty, or in those of common law; and the utmost extent to which the cases of the defendant go, is, that where the cause arises at sea, the Admiralty has a concurrent jurisdiction, and will not be prohibited. This is not a question of prize. Prize is a taking by right of war in a state of war. Bass v. Tingey. (a) The very term implies it. Whether the right be well founded or not, the prize must at last be taken by an asserted right of war. But here there is nothing of that kind. There was no war between France and the United States; there could be none between France and her revolted subjects. The taking was by an asserted right of commercial regulation, of which a common law court is perfectly competent to judge. It is not sufficient to oust this court of its jurisdiction, to allege a taking as prize. The possession of the captor may amount to a mere trespass, although the original taking has been as prize; for by delay to procure a condemnation, the captor may prove that the suggestion of prize is a pretence. It must be shewn to have been a taking jure belli, and prosecuted as such.</p> <p>3. It was left to the jury upon the third point, to say whether there was good faith in the defendant; and their verdict has found that there was not, which puts an end to the question of law. They were intitled to infer this from the evidence. But if there was good faith, it is not conceded that the law of Spain gives a title to the purchaser of merchandise, by reason of mere bonafides. The civil or Roman law is stated to be the law of Spain. By that law the buyer becomes the master of the article, only in case the seller is the right owner of it. 1 Domat. 61. Nemo plus juris in alium iransfierre potest, quam ipse hábet. 1 Pothier Contr. de Vente ¡b It does not acknowledge anything like market overt; and the only authority for an exception in favour of merchandise, the Curia Philipica, goes no further than to say, that goods are presumed to belong to a person whose marks they bear, but that this is not conclusive; and that there is a presumption of title in favour of a person who has bought bona fide,' but which of course may be rebutted. This however is not a case of contract in which the lex loci prevails. That applies only between the contracting parties, by virtue of their consent. But the plaintiff never consented to the Spanish law. He was plundered by force; and if that force was unlawful, no title could grow out of it.</p> <p>4. The proceedings and condemnation have not devested the plaintiff’s property, because the French court wanted jurisdiction for the following reasons: 1. The court acted on its instance side for the breach of a municipal law, and its jurisdiction therefore depended upon a seizure within the reach of the municipal authority; but the seizure was on the high seas. 2. The proceedings and the sentence were ex parte, fraudulent, and void, the thing taken never having been within the dominions of the captor, but having been at the time of condemnation within the country of the captured. 1. It is plain from all the arrétés, and also from the notifica* tion of Mr. Pichón, that France conceived herself to be in the exercise of a territorial right, when she interdicted commerce with the blacks of St. Domingo. She uniformly speaks of them as revolted subjects, never as enemies. She punishes those who prosecute the trade she inhibits, by confiscating their property, not by seizing it as prize of war. She had no right in her belligerent character to interdict trade with St. Domingo, except to blockaded places, and in contraband of War. She had an unquestionable right as the sovereign of the island, to punish the least intercourse with any part of it. It is therefore in opposition to the obvious intent of France, if the proceeding in question is treated in any other character than a seizure under a municipal law, and a condemnation in a municipal court, to punish the violation of territorial rights. It follows that the jurisdiction of the court was of a municipal character, which depended wholly upon the seizure’s being such as a municipal law will warrant, that is, a seizure within the territory of the sovereign; and it having been made where the law had no authority, where the sovereign had no territorial rights, it was illegal, and could not give jurisdiction. There can be no doubt upon the principies of public law, that the statutes of a country hav.e no extraterritorial force. 2 Kaime's Prin. Eq. 352, 354. Her penal statutes are peculiarly local, and affect nothing which cannot be seized within their influence. Folliot v. Ogden. (a) Courts to whom the vindication of those laws is confided, have a jurisdiction only coextensive with the law; and hence every act of jurisdiction beyond the territory is absolutely null. 1 Ershine's Inst, book 1. tit. ii. 23. Kaime's Hist. Law Tracts 232. France herself claimed a jurisdiction only within the two leagues, and those who claim under her cannot assert a more extensive one. If the jurisdiction on the high seas is common to all nations, it is against the right of any nation at peace to seize her subjects there. The instant the territorial limit is passed, territorial offences are left behind, and the offender comes under the protection of his own country; he becomes, as it were, a part of it, and it is against the equality of nations to molest him. The jurisdiction thus depending upon the place of seizure, that fact must be examined. If it does not appear, it may be, and according to the decision of the Supreme Court, (b) it must be shewn by evidence; and if shewn that the seizure was beyond the territory, as it was here, it amounts only to a marine trespass, and confers no jurisdiction. Rose v. Himely. (c) 2. But the court also wanted jurisdiction, because the property was never carried into the dominions of France, and the proceedings were wholly ex parte, and in fraud of the plaintiff. However the practice may have been in England, certainly nothing of that sort can deter us from adopting the true principle in relation to the jurisdiction of prize courts. There has been no practice in this country; nor has there been any binding decision upon the point. The case of Hudson v. Guestier was ruled only by five judges, and in Rose v. Himely, Judges Cushing, Chase, and Livingston were of the opposite opinion. It was the absence of Judge Cushing in Hudson v. Guestier, that gave a majority upon the question, when in fact the court was equally divided; and this court may therefore pursue their own judgments without restraint. No one can read the-argument of counsel and court in the case of the Henrick & Maria, without seeing, that the practice is repugnant to all the laws of war, and in fact to all the principles upon which prize jurisdiction is founded. It converts a neutral country into a belligerent station, contrary to the laws of neutrality; and would, during the present contest, disgrace America by making her a French warehouse. Although the proceeding is in rem, the res, which alone gives jurisdiction, is never within the power of the court. The court cannot restore it, if there shall be an acquittal, and it cannot by its own process in-force condemnation. The owner and his agents who are in-titled to be either parties or witnesses, are carried away; so that in relation to them, the fiction of their presence in the Admiralty is a solemn farce. And in fine, the practical principle of prize jurisdiction, the actual hostile possession by force, is exchanged for a mere constructive, ideal, representative possession, by a captor, or his agent, or neutral vendee, so that with as much safety to both belligerents and neutrals, a condemnation might pass, where there was in fact no capture at all. It was the view of these consequences that induced the Supreme Court of New York in Wheelwright v. Depeyster, (a) to decide, in direct opposition to the defendant’s rule, that a prize-court cannot adjudicate on a prize lying in a foreign port, or out of the jurisdiction of the captor or his ally; it also led to the strong doubt expressed by this court in Duncanson v. Maclure, (b) There is no safety to neutral property, under the principle contended by the defendant. In the present case it was used as an instrument in the perpetration of a gross fraud. A sentence was not thought of until the replevin by the plaintiff. It was then fabricated to cover a defective title, without notice to any one on behalf of the owner, and therefore in open violation of the first principles of natural justice. Fraud vitiates every thing, even the sentence of a court having jurisdiction; and in this case fraud is the basis upon which the jurisdiction is claimed, and upon which alone it can be . supported.</p> <p> Cur. adv. vult. </p>

<p>IN this case T. Ross moved for a rule upon the judges of the Common Pleas of Philadelphia county, to shew cause, why a mandamus should not issue, commanding them to mit an appeal from the judgment of an alderman, in the case of Lee v. Ridgway.</p> <p>The facts upon which the motion was founded were these, On the 22d Lulu 1809, Lee obtained a judgment by default • r,-r r Nii, .c , , ci against Ridgway tor 68 dollars, belore an alderman or the</p> <p>A mandamus tlie judg-e^of Common state^n appeal. which they have dismissed; befimpkce tfieir °.,’de.t'of dismjs. sion is an award ;n the nature of ajudgmentupon which a writ of error lies; and in the next place because, a mandamus cannot go to an inferior court to compel them to make any particular decision, but merely to deckle, which the Common Pleas have already done.</p> <p>Qu. Whether a mandamus from this court, lies to tho Common fleas, city, and on the 26th of the month, Ridgway entered an appeal and gave bail to prosecute it with effect. The transcript of the alderman’s judgment was not filed in the office of the Common Pleas until the 15th of August, which was 24 days after the judgment; but it was at the same time several days before the next court after the judgment was rendered. The president of the Common Pleas, being of opinion that the transcript should have been filed within 20 days after the judgment, upon motion by the plaintiff’s attorney, ordered the appeal to be struck off; and it was now the object of Ross to have it reinstated.</p> <p>He argued that the appeal had been struck off contrary to the plain interpretation of the law by which it was given; for the 4th section of the act of 28th March 1804, 6 St. Laws 385., having gren to either party the right to appeal within twenty days after judgment, upon his entering special bail, the 6th section directs that the recognisance of bail shall be conditioned for the party’s appearance at the next court of Common Pleas, to prosecute his suit with effect &c.; so that the transcript is filed in time on or before the appearance day of the next term, the act not requiring any thing to be done in that court by the appellant before his appearance. Hence the judges of the court had no right to quash the appeal; and the defendant having no other remedy, the court will grant him the writ of mandamus. This writ issues from the King’s Bench in England to all inferior courts of judicature, requiring them to do something which appertains to their office and duty, and which the King’s Bench has previously determined to be consonant to right and justice. 4 Bac. Ah. 495. It has been liberally interposed in modern times for the benefit of the subject; and nothing more is necessary to induce the use of it, but the applicant’s having a legal right, and no other specific remedy. Such seems to be the situation ■of Ridgway. He has a clear legal right; and he has no remedy by writ of error, the only other writ which can be thought of, because in fact'the appeal is struck from the record of the Common Pleas, there is no judgment or proceeding before them, and the party is now in the same situation in which he stood before the transcript was filed.</p> <p>The power of this court to issue the writ cannot be denied. Under the act of 1722,1 St. Laws 171., they are intitled to ■exercise the same jurisdiction and power in examining and correcting the errors of the Common Pleas, and “ to minix- “ ter justice to all persons as fully and amply to all intents <£ and purposes whatever, as the justices of the court of King’s ££ Bench, Common Pleas, and Exchequer, at Westminster, or “ any of them, may or can do.” More ample jurisdiction cannot be required. It assimilates this court to the King’s Bench in the matter of mandamus, as well as in other points; and it was expressly confirmed to the court by the 5th section of the 5th article of the constitution, and by the act of 13th April 1791., 3 St. Laws 92., which reorganized the judicial establishment after the adoption of the constitution.</p>

IN ERROR. UPON a writ of error to the Common Pleas of Philadelphia county, the case was thus: An award was made by arbitrators in favour of Randolph the plaintiff below, j •* * • from which the defendant appealed, and entered into the recognisance required by law: but no notice of the time and o > , 1 , , -, ,. , place oí entering the appeal, and ox the name ot the surety, having been given to the plaintiff, in conformity with the following rule, the Common Pleas struck off…

<p>IN this case,- the plaintiff’s attorney gave notice to the defendantto enter special bail on or before a certain day, in the office of the prothonotary of this court, and upon his neglecting to do it, issued a capias ad respondendum. The notice and the writ were in case, without designating the particular cause of action; but from a written communication by the plaintiff’s attorney to the defendant, it appeared to be slander. Upon affidavit of these facts, and of his owning a freehold to a greater amount than the bail required, the defendant obtained a rule to shew cause why the- capias should not be quashed with costs, upon the ground that he was a free«hold'er; and now upon the return of the rule,.</p> <p>A capias may issue for any cause of action whatever against a freeholder, who neglects to put in special bail upon notice. ex.gr. for slan4er.</p>

THIS cause was argued upon a statement of facts, which in substance were these: An abandonment after acquittal, and after an order ofrebeen given by C(mrt of last agerit 0f t]le as_ fared, is too late, notwithstanding it be made before actual restitution by the captors. is tlle state not the state of The plaintiff, on the 15th April 1806, caused insurance to be effected by the defendants upon goods by the schooner Hazard, at and from Philadelphia to St. Jago de, Cuba, at and…

THIS was an action for money had and received, and money paid, laid out and expended, in which the fol- , -ip, . . c . lowing case was stated tor the opinion oi the court: The owner 0f goods chargeable with general average, is personally liable for tiie amoUnt of contribution, notwithstandhighe.bas abandoned totheundenvriters.

<p>THIS case came before the court upon a point reserved at the trial at Nisi Prius in November last, by Judge Brackenridge.</p> <p>The act of frauds and perjuries of tile state of Pemtsylvania, does not raiion^ftrust*1" it is competent evu/enee^of the lieMiusTa'id10*1 lwd given her only a life es-from being made by parol. Hence in an ejectment declarations of A that the land she had purchased in her own name, was hought for the use of B, with tate, by his will, and had devised it to B after her death.</p> <p>Jonathan Beere by his last will devised to his wife Mary, two tenements and lots of ground for the term of her natural life, with liberty to sell them at any time, if she should think proper; and in case of sale the purchase money was to Put out on g°°d security, and his wife during her life was to enjoy the interest. After the death of his wife, he gave to sons John, James, and Jonathan, every thing which he had given to his wife for life, to hold to them, or the sur-, vivors of them, their heirs and assigns, share and share alike, James died before the testator. After the testator’s death, the widow sold the premises in the will, and bought a house and lot, the premises in the ejectment, for which she took a ^eed 'm her own name, and then devised them to her tw®. grand-daughters the children of John, who were the lessors of the plaintiff.</p> <p>The defendant claimed under Jonathan the brother of John, and offered parol evidence to prove that the premises in question were purchased for the use of Jonathan, with one half of the identical money for which Mary Beere had sold the property devised to her for life by her husband, and that the other half was appropriated to pay the debts of John; and that she had repeatedly declared that she had done this in pursuance of her husband’s will.</p> <p>The evidence was opposed by the plaintiff’s counsel; but the court admitted it, reserving the point.</p>

<p>HpHIS cause came before the court upon a point reserved by his honour Judge Brackenridge at the trial in October last.</p> <p>It was an action upon a policy ,of insurance to recover a total loss, which the defendants resisted upon the ground of concealment. The cause was first tried before the Chief Tus- . , ,. r tice, where a verdict was found for the plaintiffs, which was afterwards set aside as being against the weight of evidence. Upon the second trial, the plaintiffs’ counsel shewed to the court that the suit was brought to March term 1805; that on the third of June following, the plaintiffs assigned all their property to assignees for the benefit of creditors, from whom , , . , they received a release m November 1805; and that on the morning of the trial, a paper had been filed in court, declaring that the suit was for the use of the assignees, by whom, all the costs, including the whole costs of trial, were then paid. They produced also a release from both the plaintiffs to the surviving assignees, dated the day of the trial, of all money to be recovered on the policy in question, for the use and benefit of the creditors mentioned in the assignment of the 3d fune 1805; and they then offered William Steele, one of the plaintiffs, as a witness in the cause.</p> <p>The witness was objected to; but Judge Brackenridge admitted him, reserving the point for consideration in bank.</p> <p>of all his interest in the money which may be recovered in the action,' A plaintiff who after-the commencement of the suit, has made a voluntary assignment of to creditors, and has also executed a release to the assignees, ■ is a competent ’ witness m the cause, provided all the costs are paid before he</p>

<p>THIS was an action of account render, in which the claration contained three counts, the first charuina: the .defendants as bailiffs, the second as receivers, and the third as bailiffs and receivers. The pleas were ne unques bailiff or receiver, and fully accounted; and the cause went to trial under an agreement by counsel, that the jury should not only decide the issues, but the amount, if any, due from the defendants.</p> <p>partners in a mercantile ad-\rne. account etch^ther'by* the common ^common'byn the 27th section which section h,s.be®n earn Pennsyhania.</p> <p>To justify# new trial, the mistake of the {^ct mt/t'b °r plain, or the verdict must be against the evidence. It is not enough that the court did not look upon the evidence in the same light with the jury, or that they would not have found such a verdict themselves.</p> <p>The case involved an immense mass of evidence, which . r • , ... is or no importance to the present question, whether account render was the proper form of action. So far as it respects , . ... 1 , , , , . . L this point, it is only necessary to state, that the plaintiff and the defendants were concerned together in a large adventure to South America, the funds of which, belonging to them in equal moieties, were sent out in the Canton, a ship belonging to two of the defendants, and the America, a ship belonging to the plaintiff’s house, sailed in company, to bring hack ~ the plaintiff’s proportion of the proceeds. They had made a contract with a Spaniard., that the shipment should be paid for at Buenos Ayres at a certain advance; and they expected that an equal amount of the returns would be furnished to each ship. The plaintiff’s proportion of goods was taken out in the Canton, free of freight; but each party made separate insurances on their interest in the goods, and on the ship, and each fitted out and supported their ships at their separate expense. The whole adventure was under the care of two joint supercargoes, who were instructed in case the cargo could not lawfully be landed, to return to the United States without breaking bulk; if it should be landed and paid for, they were to ship one half of the proceeds on board the Canton for the defendants, and the other half on board the America for Nicklin and Griffith; and as some event might occur which was not provided for in the instructions, the supercargoes were informed that the parties relied on their prudence, vigilance and zeal, for. the full completion of the plan. The cargo was not accepted by the Spanish house upon the original terms; and this case not being provided for in the instructions, the supercargoes thought it best to deliver it over to the house as consignees to sell on commission. Thirty thousand hides, a part of the sales, were shipped on board the Canton to th,e address of Willings and Francis, who sent them by the same vessel to Amsterdam, 'where they were sold; and after a long delay 20,000 hides were shipped in the America for Nicklin and Griffith. The object of the action was to recover the plaintiff’s proportion of the 30,000 hides shipped by the Canton, upon the ground that they were to a certain extent jointly interested therein.</p> <p>The Chief Justice charged the jury, that the plaintiff’s claim rested upon the principle of his being jointly interested with the defendants in the cargo of the Canton from Buenos Ayres to Philadelphia, and if he was right in that, of which they would .judge, the action would lie. The jury found for the plaintiff; and now upon a motion for a new trial, as well upon the merits as upon the propriety of the action,</p>

<p>in ERROR.</p> <p>UPON a writ of error to the Common Pleas of Philadelphia county, it appeared that the plaintiff had brought this action for slander; that it had been referred under the general issue to arbitrators, who reported in favour of the plaintiff one dollar damages, and costs; and that the Common Pleas had, on motion of the defendant’s counsel, ordered the judgment to be entered for one dollar damages, and one dollar costs. The error was assigned in the judgment for costs, which it was said ought to have been rendered for full costs.</p> <p>Shoemaker for the plaintiff argued, that although by the act of 27th March 1713, sec. 4., 1 St. Laws. 95., if a jury assessed damages in an action of slander in a sum under forty shillings, the plaintiff was intitled to no more costs than damages, yet the power of referees was not thus limited, they being judges both of the law and the facts; and this court had accordingly held in McLaughlin v. Scott, (a) that where referees find costs of suit, the party is intitled to full costs, although the sum awarded will not carry costs by law. That in addition to this, the act of assembly under which the reference took place, authorized the arbitrators to decide all matters in variance, which included costs.</p> <p>If referees in.ap action of slander award to the plaintiff a sum wider forty shillings, ’with costs, he is intitled to no more costs than damages. Seats, if they awaiff/M//costs. This court lias adopted the English rule, that although the courtis bound by the statute, the jury is not, and they may give JO/, costs though they only give six pence damages.</p>

THIS cause was tried at a Nisi Prius in November last, before Mr. Justice Brackenridge. A paper -which is not evidence per se in a suit between the underwriter and the assured, does not become so for any purpose, in consequence of liav- . ing been exhibited by tile latter to the former as one of the preliminary proofs of loss; except the question be merely whether such a paper wits exhibited.

a went as suPf,rcal!S° from Philadelphia to Batavia, under an agreement between the shippers, which so far as respected his compensation was thus: “The com. “mission, which is to be four per cent, on… Held: that he was intitled to a proportionate compensation, deducting from the whole commission of four per cent, what it would cost the shippers to complete the investment at Batavia.

XCEPTIONS to a report of referees. If a creditor of A lays an attach’ ment upon goods which appear as the property of A, but wherein B has nevertheless an interest ■which he communicates to the creditor before the attachments laid, 'the creditor is bound to refund B his proportion of the money recovered under the attachment, notwithstanding the judgment of a competent court decreed the •whole to him as the property of A. §lu.

<p>rTpjjjs cause came before the court upon a case which ¡J 1 -*>- stated as follows:</p> <p>A judgment not revived by scire facias within 'five years from its date, ceases upon real estate, as well against fudgrnentcreditors,as against ciiasere.0111 Pm"</p> <p>At September term 1797, judgment was entered in this court at the suit of Samuel and William Hibbert against Tho~ mas Fitzshnóns as special bail of George Green; but no scire facias ever issued to revive the saidjudgment.</p> <p>A scire facias issued out of the same court returnable to September term 1804, at the suit of the President, Directors and Company of the Bank of North America, against the defendant, upon a mortgage made and dated the first day of February 1798, and given for payment of 30,000 dollars, loaned by the bank to the said Thomas Fitzsimons on condition of the said mortgage being given to secure the payment thereof, but not recorded till the 24th of December 1798. Judgment was confessed at the first term; and under a levari facias issued thereon returnable to December term, 1804, such of the mortgaged premises as are situated in the county of Philadelphia, have been sold by the sheriff; and by an agreement signed, the money is to be considered as in 'court.</p> <p>At September term 1799, Benjamin Fuller obtained judgment in the same court against Thomas Fitzsimons for a sum. ®f money, which with the accumulated interest exceeds the amount of sales by the sheriff; and on the 20th of March 1800 this judgment was revived by a judgment obtained on a scire facias issued thereon at the suit of William, Lewis eaq. executor of the last will of Benjamin Fuller, against the said Thomas Fitzsimons.</p> <p>On or about the first day of March 1801 the President &c. ©f the Bank of North America had actual notice of the judgment of the said Samuel and William, Hibbert.</p> <p>The question for -the opinion of the court is, whether Samuel and William Hibbert are intitled to the payment of their said debt out of the amount of the said sales.</p> <p>It was argued at December term 1810 by Hallowell and Jngersoll for the Hibberts, by Lewis for Benjamin Fuller’s estate, and by Gibson and Rawle for the Bank of North America; it being agreed between the Bank and Mr. Lewis, that the court should not settle the question of priority between them, but only as between them and the Hibberts..</p>

<p>THIS was an action of trover for two bonds, tried under the general issue at the Nisi Prius in February last before Mr. Justice Teates.</p> <p>The delivery of a bond or personal chattel by the owner in his last illness to his wife, for the use of a third person, is a sufficient delivery to make it a good donatio causa mortis.</p> <p>The widow is a good witness to prove a donatio causa mortis by her deceased husband.</p> <p>A bond is a proper subject of a donatio causa mortis.</p> <p>It seems that a donatio causa mortis is not only conditional, to be void if the donor recovers, but it is also revocable by him, being in the nature of a legacy.</p> <p>From the report of his honour, the evidence was in substance this:</p> <p>Andrew Craig the intestate, had adopted the wife of Tucker at a very early age, and maintained her in his house until her marriage. After that event, he frequently manifested his kindness to her family, and in one or two unfinished wills which he left at his death, appeared to have designed a legacy of about 1000/. for her husband and children. He died on the 20th August 1805, intestate and without issue, leaving a widow, a brother and sister, and some nephews and nieces the children of deceased brothers and sisters. His •widow, who by the law of New Jersey where he had lived, was intitled to half his personal estate, proved upon the trial, that about the 17th of August 1805, her husband, having then a sketch of a will in his hand, which he was too ill to finish, said to her, “ I have bonds against Benjamin Tucker “ (the defendant) to the amount of about 1000/., which I “ give to his children to be divided between them.” He told her where they were, wrapt up in the pigeon-hole of a desk, of which he delivered her the key, and requested h,er to go and get them. She accordingly got them and locked them up until after his death, when she delivered them to the defendants. After the delivery, Tucker, imprudently, but not with any dishonest view, cancelled them, and induced the Original obligee, who had assigned them and a mortgage for securing them, to the intestate, to enter satisfaction of record.</p> <p>Judge Teates charged the jury, that if they believed the evidence of Mrs. Craig, they ought to find for- the defendants, as he was of opinion that the delivery of thé bonds to the wife for the children, made them a good donatio causa mortis.</p> <p>The jury found for the defendants; and now upon a motion for a new trial,</p>

<p>THIS was an ejectment, in which the following case was stated for the court1 s opinion;</p> <p>A devise to A, “ and bis law- “ ful begotten “ heir forever” is an estate tail in A.</p> <p>It is sufficiently clear that in a will, if not in a deed, heir is nomen collectfaum, and the same as heirs.</p> <p>It is not nel»dylfromlt the which the issue is to come, should be mentioned in express terms, in order to make a good estate tail. It is sufficient if the intention of the testator appears with reasonable certainty.</p> <p>It is the spirit of the act of limitations' to allow twenty-one years from the time that a person mig-ht make an entry and support an action, the statute not stopping after it has begun to run, in consequence of infancy coverture or any other disability. But if a party has not a right of entry, but only a possibility which may give a right of entry at a future day, the statute does not run against him, until that right accrues. Hence, notwithstanding the next heir in tail releases to the tenant in tail in possession, the statute does not run against the releasor until the death of the tenant in tail without issue.</p> <p>Sarah Mallozves, being seised in fee of the premises in the declaration, on the 16th December 1723 duly made and published her last will and testament in writing, bearing date the day and year aforesaid, and therein devised as follows: “ Im- “ primis I give and bequeath to my kinsman Solomon Hall “ ten pounds in lawful money, likewise sixty acres of wood- “ land joining on the northeast side the plantation he now “ dwells on, I give to him and his lawful begotten haire for- “ ever” — “ Item I give unto my negro boy Toby, when he <l arrives at the age of twenty-four years of age, the sum of “ ten pounds lawful money, likewise ten acres of land lying “ at the north corner of my land, to have during his life”— “ Item I give and bequeath to my kinsman Joseph Hall, “ and to his lawful heirs forever, all my plantation that I “ have not before given, with all its improvements thereon, “ I give and bequeath to my kinsman Joseph Hall arid' his “ lawful heirs forever. And for the love and affection I do “ bear unto my kinsman Joseph Hall, I do give and bequeath “ unto the aforesaid Joseph Hall, all the reversion of what “ I have herein before given of my estate both real and per- “ sonal, or of what kind or nature soever they be, I give un~ “ to my said kinsman Joseph Hall and his heirs forever.”</p> <p>The testatrix died seised as aforesaid without altering or revoking her said will, Solomon Hall, the devisee therein mentioned, surviving her.</p> <p>Solomon Hall the devisee, after the death of Sarah Mallowes, entered into the premises, and died seised thereof, leavinglawful issue four children, to wit, John Hall his eldest. son, Solomon Hall his second son, and two daughters, Sarah, who intermarried with David Davis, and Mary Hall.</p> <p>After the death of Solomon Hall, the said John entered upon the premises, and about the latter end of 1785, or beginning of 1786, died without issue, his brother Solomon above mentioned, who was his heir at law, surviving him.</p> <p>On the 18th of May 1786, the said Solomon Hall last men-' tioned died, leaving lawful issue, Jacob Hall his eldest son and heir at law, the lessor of the plaintiff, and five other children.</p> <p>The defendants are in possession; and they and those under whom they claim, have been in possession of the premises in the said will of Sarah Mallowes mentioned, and devised as aforesaid, ever since her depth, and claim the same by force and virtue of the following clpeds, will, and conveyances.</p> <p>On the 30th August 1750, William West and Elizabeth his wife, (who who was the widow of Solomon Hall the devisee of Sarah Mallowes) Solomon 'Hall one of the sons of Solomon the devisee, David Davis and Sarah his wife one of the daughters of the said Solomon the devisee, and Mary Hall another daughter of the said Solomon the devisee, released all their right and title to the property devised by Sarah Malloxves as above stated, unto John Hall eldest son and heir at law of Solomon Hall the devisee of Sarah Malloxves, in fee, with a warranty against all claiming under them. [The deed was in these words, “ have granted, remised, released, and “ confirmed, and do grant, remise, release and confirm to “ the said John Hall, his heirs and assigns &c.”]</p> <p>On the 26th April 1754 John Hall and wife conveyed the above premises to Benjamin Britton in fee. [And the case then proceeded to deduce the title down to the defendants.]</p> <p>The question for the opinion of the court, was whether the plaintiff was intitled to recover.</p> <p>It was argued first in December term' last by Condy for file plaintiff, and by Rush and Hopkinson for the defendants.</p>

<p>IN April 1803, the United States attached, in the hands of the president directors and company of the bank of the United States, twenty-four shares of stock as the property °f Bird, Savage, and Bird, which then stood in their name on the books of the bank; and by agreement of the bank, the scire facias against the present defendants, who were garnishees in another attachment between the same parties, was t0 considered as having issued against the bank, and the right to the stock was to be tried under the plea of nulla , o°na'</p> <p>Stock of the has been sold tbe'certiflcate delivered to the ap'^ower'of a't-h torney to transboofe°ofthe hank, is not liahie (o an attachmcnt as the property of the though it is still standing in his books of the bank, at the time ment</p> <p>A chose in been 'equitably assigned, is not tachment as the property of the</p> <p>in a foreign at-betterS footing as to the than^lds'debtoi, the defendant in the attachment.</p> <p>Of these twenty-four shares,, ten were claimed by Anne,' dowager dutchess of Cumberland, under a sale by Bird, Savage, and Bird, on the 10th January 1794: Five were claimed by Benjamin Tucker, under a sale by John Capper 0n the 29th of October 1802, to whom a sale was alleged to have been made by Bird, Savage, and Bird, on the 9th July one was claimed by John Capper under the same sale °f 9th July 1797; and eight still remained, as was said, the property of Bird, Savage, and Bird. These claims were by agreement tried under one issue.</p> <p>_ On the trial of the cause before Teates justice ata Nisi Prius in July last, the district attorney, (Dallas) having proved that Bird, Savage, and Bird stopped payment in Lon-d°n on °f December 1802, at which time they were debtors of the United States for more than 120,000 dollars,— that the attachment was laid upon the stock on the 9th of April following, when it still stood in their names, — that the first application by Tucker to transfer the stock, was in December 1803, by Capper in August 1804, and by the dutchess of Cumberland, at a still later period, — the counsel of the respective claimants offered to prove, that it had been the course of business in relation to sales of this stock in England, for the person who sold it, to deliver the certificate to the vendee, together with a power of attorney from him in whose name -the stock stood to a third person, (usually the assistant cashier of the bank) authorizing him to transfer the same to some person in blank; and that by the delivery of the certificate and the blank power of attorney, the share passed from hand to hand, the power of attorney never being filled up, until it was forwarded to the United States for transfer. They also offered to prove, that as to the ten shares of the dutchess of Cumberland, she bought them in this way in 1794, when the certificate and blank power of attorney had been delivered to her; that Tucker had bought his Jive shares from Capper in October 1802, when the certificate and a blank power were delivered, in which his name was inserted in May 1803; and that Capper bought one share in July 1797, a certificate and blank power for which were delivered on the 5th September following.</p> <p>To this evidence the district attorney objected, upon the ground, that according to the construction of the act incorporating the bank, and of the by-laws of the bank made in pursuance thereof, there should be proof of an assignment or transfer of the stock in question at the bank of the United States, by Bird, Savage, and Bird, either in person or by attorney, to change the property, so as to prevent its being attached by the United States as the property of Bird, Savage, and Bird, in whose name the same stood at the time of the attachment; and that the course of business ought not to be given in evidence for the purpose of affecting in any way such construction.</p> <p>His honour however admitted it, reserving the point; and the cause then went to the jury, principally upon the bona Jides of the alleged sales, as to which there was much testimony that is not material. The jury found for the dutchess of Cumberland as to her ten shares, and for the United States as to the six claimed by Capper and Tucker, and the eight unclaimed; and now cross motions were made for a new trial, by the district attorney as to the dutchess of Cumber■land’s shares upon the reserved point, and by the counsel of Capper and Tucker upon the merits. The argument upon the reserved point is alone material.</p>

<p>has1?'a<T°t''tn of the action, their officers are not responsible for errors in the process.</p> <p>Supposing a smgle judge of the Common ' Pleas to have a right upon a habeas corpus to fendantfwhois" in execution from^hatTcourt still if he does ’ tice to the plain tiff, the pro- and^hfdefend' ant may be i;e-taken m execu-</p> <p>S¿u. Whether ofa defendant in consequence by a amount to a voit rSpe^ctsíh^8 sheriff?</p> <p>upon\effi^ first taken in execushew property to the officer sa” levy forle the debt, and he iUegallydis-S charged and re-same execution, an offer to shew property is then too late. Whether the acknowledgment of a deputy sheriff of things done by him in the course of his office, is evidence against the sheriff? The habeas corpus act of 1785 extends to commitments under civil process.</p> <p>rT,mS was aa appeal from the decision of Judge Brackenridge at a Circuit Court for Northampton in June 1809.</p> <p>It was an action of trespass and false imprisonment aga;nst the defendant, who was formerly sheriff of the coun- ° ’ , . ty of Northampton. Plea non cul., with leave to give the Spec;ai matters in evidence.</p> <p>. . . . , Upon the trial of the cause it appeared in evidence, that a judgment had been entered in the Common Pleas against Hecker at the suit of Leonard Engle, and that an execution *n *"orm Prescl'ibed by the act of 21st March 1806 issued on the 4th of May 1807, upon which the defendant committe(^ decker to gaol, returning to the writ, that Hecker had been unable to satisfy him that he had lands and tenements 800<^s or chattels in his bailiwick whereon the debt and costs could be levied. On the 10th of June a habeas corpus under the act of 1785 was issued to the gaoler by Judge Cooper, one of the associate judges of the Common Pleas, upon which flecker was brought up, the gaoler returning that he was in custody under the above execution, and two executions from °f the peace, which had been lodged as detainers, The judge discharged him from all, indorsing upon the ha^eas corPusi that the two executions from justices had been served after the return day, and that it appeared to him from ^le affidavit of Hecker that he had offered to produce personal and real property to the sheriff to satisfy the debt in Enexecution, a deed for the land on which Hecker resided being also shewn to the judge. On the 28th of July the defenc^ant ret°ok him under the same execution, and committed him to gaol a second time. The same judge issued a second habeas corpus on the 30th, upon which Hecker was again brought before him, and the sheriff heard in opposition, ^Pon this hearing the judge remanded Hecker, certifying in his order that the sheriff by letter had stated that the defendant had no property on which he could levy, which state- " ment was also corroborated by the declaration of the deputy. These were the arrests and imprisonments complained of, which the defendant justified under the execution.</p> <p>The material question of fact for the jury was the offer of property; as to which it was admitted that Hecker lived on a tract of land which belonged to him; but there were thirty-two judgments against him to an amount greatly beyond its value, and it did not appear that he had offered it to the sheriff. It was proved that he had offered a mare &c. to the sheriff prior to the first arrest; but it was not shewn to have been his property, and he had previously asserted it to be his father-in-law’s. His counsel offered evidence of declarations by the sheriff’s deputy who took Hecker to gaol the second time, that he had then offered him property to levy upon; but the judge overruled the evidence, upon the ground that not the declarations of the deputy, but his acts only, were evidence against the sheriff.</p> <p>The points of law made for Hecker, were that the writ under which the arrest was made, was void by the act of 13th April 1807, which repealed the act of 21st March 1806, and therefore the arrest was illegal and the discharge by the judge was proper. That at all events the second arrest after the discharge was unlawful. And that supposing the process valid in the first instance, the sheriff had no right to take the body, it being his duty first to levy upon even incumbered land.</p> <p>His honour charged in favour of the defendant upon all the points, and the jury accordingly found for him. A motion for a new trial was then made by the plaintiff, which the judge overruled, being desirous that the question should be settled in bank.</p>

The court will defendant out of custody upon the ground of therTínosuggestión of fraud or imposition! but will leave him to make use of that fact upon ins defence * UPON the return of a rule upon the plaintiff to shew cause why the defendant should not be discharged on common bail, Tilghman C. J. The court will ask any questions which they may think necessary, but not the party. You may however propose to the court any question for the witness, and they will decide upon it.

A rule to try or non-pros,.is in force from the time it is taken, until the cause is concluded, notwithstanding the cause may have been once tried during the existence of the rule, or continued at the instance of the defendant.

Costs of double' the number of witnesses sworn, allowed under special circumstances, provided the counsel in the cause could name so many whom their opinion tvere material. THIS was an indictment against Wood and six other journeymen hatters, for a conspiracy.

<p>IN ERROR.</p> <p>Under the eral power of the Common ^lea? t0 reS'1‘ late its practice, it has authority make al7lf’ fendants an affi£avlt of judg^re^a^dnst”' them, iftheafcertain time-.</p> <p>UPON a writ of error to the Common Pleas of Philadel- , phta^ it appeared that a judgment hacj been signed against Vanatta the defendant below, for want of an affidavit ° ’ of defence, agreeably to the following rules of that court: “ April 17th, 1809. It is ordered that in all actions brought “ to be brought in this court, of debt or contract, the plaintiff “ shall be at liberty to direct judgment of course to be en- “ tered at the third term, unless the defendant or some “ son for him or her, shall make affidavit and previously file “ the same in the clerk’s office, that to the best of his or her “ knowledge and belief there is a just defence in the said “cause; and if the defence be to part only, the defendant “ shall specify in such case the sum in dispute, and judgment “ shall be entered for so much as shall be acknowledged to “ be due to the plaintiff, and the trial shall proceed for the “ residue of such debt or demand; and in all actions of debt “ and contract now at issue on the docket of the court of “ Common Pleas, judgment shall be entered at September “ term next, unless affidavit of defence be previously filed in “ the prothonotary’s office, in the manner aforesaid.” On the 13th July 1809, the court made a supplemental rule, that “ the rule of the 17th April should not extend to any suit “ brought and depending previous to that day;” and on the 31st March 1810, they made an order, that “ where ajudg- “ ment had been entered at the third term for want of an affi- “ davit of defence, and a declaration had not been filed at “thesecond term, the judgment was irregular.” The error was assigned in the entering of the judgment, upon the general ground that the Common Pleas had no authority to ■make such a rule.</p>

IN ERROR. ■ili RROR to the Common Pleas of Philadelphia. If special bail has been entered at the commencement of a SU11’ !n a sum sufficient to secure the amount ^rdedbyarbitrators in the necessaryVoif the defendant intitle himself to days after judgment, according to the 11th section of the act Jsio^ndthif seventh section of the act of f¡¡QQ^a' An amicable action was instituted on the 8th December 1810 by Spargella against the plaintiff in error, in which special bail was…

in ERROR. Xt is not necessary that an appeal from the judgment of a justice should be .entered on the prothonotary’s docket within twenty days after the judgment. The appeal must be made within that time; but the entiy on the ' docket is in time on any day before the next term of the Common Pleas. A writ of error lies to an order of the Common Ideas, in the nature of a judgment, dismissing an ap, peal from the judgment of a magistrate.

Ship an(1 oQds belonging to ownerswere insured from ^rtmlífs but the vessel’by aiei*was com pelled to put ’she w condemned and ^broken up. The goods goltb árlíd/e6 net proceeds of j”*ewere p,aicl cargo. The assured abandoned ship and goods, and recovered a verdict for a total loss in each case; but in adjusting the loss, they claimed to deduct out of the net proceeds of the goods which were to be credited to the underwriter, a pro rata freight to Antigua.

A vessel insured ’p^atklpMa to Amsterdam, witli liberty in be turned fr°m Amstersome neiglibpuring port of bóaiílec?onher passage by war? andlier° PaPers mdorsed not to proceed any.P™^at Britain, or s,mt against British ships, hut to proceedto any ^Britain or De¿««¿for then put into Falmouth, where in consequence of headwinds, and with a view to obtain con-having there beard oí Hae Milan decree,) she remained nearly four months, and then sailed under convoy for the Downs,…

<p>Exceptions to the report of auditors m account renden, are too late after a judgv ment msi upou the report has become absolute by the expiration of the t — !t hp- Whether ou^hte"not^o°be taken before the auditors, and prior to any report.</p> <p>A FTER a judgment to account in this case, the court appointed auditors, who on the 28th November 1810 , , . . .„ . hied their report awarding to the plaintiff the sum or 12,lo9 dollars and 94 cents. The report was read on the first day of * . . _ , , December term, and a judgment mm entered. Un the 13tn, 0f December, time was granted to the defendants until the ' ° . , 20th, .upon Mr. Dallas’s motion, to file exceptions to the report; but no exceptions were filed until the 7th of January 1811, which was after the end of December term.</p> <p>'^le fust week of the present March term, Dallas for the defendants moved for a rule upon the plaintiff to plead t0 exceptions filed. 1</p> <p>Meredith and Rawle opposed the rule upon the ground,</p> <p>1. That the exceptions were too late, as they were not filed until after the expiration of the term to which the report was returned, and after the judgment had become absolute.</p> <p>2. That they ought to have been taken before the auditors; and as that had not been done in this case, the court could not have received them, if filed at any time.</p> <p>Upon the second point, the counsel on both sides went very much into a consideration of the English entries and decisions; and the plaintiff’s counsel particularly urged, that the point had been already settled by this court in the case of Moore v. Hunter* at March term 1807; but it becomes unnecessary to state the argument, as the court declined giving any opinion upon that objection to the rule, being clearly with the plaintiff upon the other.</p>

The testator devised “ unto S. “ E. the grand- “ daughter of “ his sister, and “ to her chil- “ dren, the plan- “ taitón they ■ “ then lived up- “ on, for the use “ ofher the said “ S. E. during ‘‘ her life, and “ immediately “ after her de- “ cease, to be “ equally divi- “ ded among “ the surviving ‘ ‘ children of “ her the said “ S. E.” He gave a legacy of 10/. to his heir of S. E. took but at law, and 40/. to each of the children of his heir, an estate for life.

<p>A subsequent mamag'e and birth of posthumous or other issue, do not amount by the law of Pennsylvania to a total revocation of a will, eyen where the subsequent issue is the testator’s only child. They amount to a revocation pro tan-to, namely, so far as regards the widow and child, but not as to the appointment of executors, nor as to a power to sell for .the payment of -debts.</p> <p>As to personal property, the _ probate of a will is conclusive while it remains unrevoked:as to realty, it is but prima fade evidence. See Province Lam 30, act of 1705.</p> <p>THIS was an ejectment for a messuage and lot in the township of the Northern Liberties, which was tried before the Chief Justice at Nisi Prius in January last.</p> <p>The material facts were these: Abraham. Coates, the father of the plaintiff, intermarried with Frances Miller. and during her life time, being seised of the premises in the declaration mentioned, he made his last will, dated the 31st of August 1797, wherein he devised as follows: The testator in the first place directed that all his just debts and funeral expenses shoidd be duly paid and satisfied as soon ««-conveniently could be after his decease. He then gave to his wife Frances all his household furniture, plate &c., to his friend Abia Broxvn a lot in Camden, and all the rest and residue of his estate real and personal he devised to his brother and sister as tenants in common in fee, with intent that his wife should have one half the income during her natural life, in lieu of dower. He then concluded his will with the following clause: “ Item, “ I do nominate and appoint my said brother Jacob Coates, “ and my friends Abia Brown and Thomas Norton, executors “ of this my last will and testament, and do authorize and “ impower them my said executors, and the survivors and' “ survivor of them, and the executors of such survivor, when “ necessary and expedient for the execution of this my will, “ to bargain and sell by private or public sale, all or' any of “ my messuages lands tenements and real estate, and by pro- “ per deeds and assurances in the law, to grant and convey “ the same to the purchaser or purchasers thereof, his her or u their heirs and assigns for ever.” Frances Coates died without issue in the. life time of the testator., and on the 4th of May 1802 he intermarried with Jane Hughes, a daughter of the defendant, and died on the 11th of February 1804, leaving her enseint with the plaintiff, who was born on the 29th of April following.</p> <p>The will was proved on the 7th of March 1804, and letters testamentary granted to Jacob Coates, one of the executors, Abia Brown having died before the testator, and Thomas Norton having refused to act.</p> <p>On the 25th of March 1807 Jacob Coates sold and conveyed the premises to the defendant in fee simple for the consideration of 4000 dollars, that sum being the fair value of the property, and several judgments having been entered against the testator in his life time, and others against his executor, for the discharge of which the sale of this estate was essential. The executor by his account filed in the register’s office, and which had been settled by auditors and confirmed by consent by the Orphan’s Court in order to found an appeal, stated the amount of the inventory at 311 dollars and 94 cents, the amount with which he charged himself, including the proceeds of sale to the defendant, at 5929 dollars and 12 cents, and the debts which had been paid at 4934 dollars and 16 cents, of which last item the defendant paid 3757 dollars and 67 cents, to be deducted from the purchase money. One of the plaintiff’s exceptions to this account was,' that the executor could have gotten more money for this estate, and therefore should be charged with more.</p> <p>The principal question was whether the will of Abraham Coates was revoked by the subsequent marriage and birth of issue; and to bring this before the court, a verdict was taken for the plaintiff, subject to the opinion of the court whether upon this evidence she was entitled to recover.</p>

<p>IN ERROR.</p> <p>« t have lost a “ calfskin out «the day that “ ^«^ot fhe”" “leather, and “cellar bat you, “ bornman and “ Gray,- and I not blame “ 3’0U }wr Gray, “but Bornman « mUst have “fden it," is Sl3.nflfil*' nnd without any com{^««wraofafelony, an mnuendo that the tiefendant thereby meant that Bornman had st0!f/‘ íhe said calfskin, was held good to support a judgmontanera verdict for plaintiff.</p> <p>THE defendant in error was sued in the Common Pleas A of Dauphin for slander, the declaration charging that in a conversation with a certain Henry Reigart, he malieiously and falsely uttered and spoke the following false, scandalous, and malicious words of and concerning the plaintiff: I (the defendant meaning) have lost a calfskin out of my cellar the day that you (the said Henry Reigart meaning) and Rornman (the plaintiff meaning) got the leather, and there was no body in the cellar that day but you, Bornman, Gray, and I do not blame you nor Gray, but Bornman must have taken it, (thereby meaning that Bornman had stolen the said calfskin.). The iury found a verdict for the plaintiff, with twenty dollars damages; and upon motion, the Com: mon Pleas arrested the judgment, upon the general ground that the words were not actionable.</p>

<p>Sf the oblig-ee undertakes to discharge the principal, or in any considerable degree to lessen his reswiüiout consulting the surety, discharged; but the mere accofnmon against the prinmpal, m consequence oí which the latter exeeuted an assignment to secure part of the debt, has no effect tspon the obligalion of the surety, although it furnished the principal with an opportunity to leave the state.</p> <p>There is no against granting anew trial after ffdiftefior”^ •will the court tfif thVverdiets are against ia</p> <p>The principle which lias goreftSng the* plaintiff' a new trial, where his demand has been a hard one, does not in any degree apply to actions against sureties for the default of a .principal. Although a surety' may be distressed by the demand, yet it is not in point of law a hard one.</p> <p>THIS was an appeal from the decision of Judge Brackenridge at a Circuit Court for Tork county in May 1809.</p> <p>The action was debt upon a bond given by the defendants to the plaintiffs, to secure" the performance of a contract made by a certain Obadiah Osburn with the plaintiffs, to build a bridge over the Schuylkill at Reading. Osburn did not comply with his contract; and m June 1804, the commissioners sue(j him in covenant, and demanded bail in 5000 pounds; they afterwards without consulting or giving notice to accepted his appearance, on his assigning to them all his property on account of the moneys which they ^ad advanced him. After being discharged, he left the state. . . ° , The commissioners sold the property, the proceeds of which re¿uce¿ their demand to about 8000 dollars, for which the ’ present action was brought. There was no dispute about facts, and the charge of the court was in favour of the plain- . ° . r l r tiffs; but the jury, as anotherjury had done before, found for the defendants, and judge Brackenridge, although the verdict he said was decidedly against his opinion, overruled a motion for a new trial, that it might be heard in bank upon appeal.</p>

<p>IN ERROR.</p> <p>An award of arbitrators in the Common Pleas is to be considered as a judgment of that court From the time of its entry upon tile docket, and as such subject to a writ of error.</p> <p>THIS was an action of slander in the Common Pleas of Dauphin, which was referred to arbitrators under the act of 29th March 1809. The arbitrators filed their award in the office of the prothonotary on the 26th January 1810, finding twenty dollars damages in favour of Krug and wife the plaintiffs below, and on the same day the prothonotary, in conformity with the tenth section of the act, 9 St. Laws 128., made an entry of the award on his docket, and added these words, “ judgment according to act of assembly.” The present writ of error was then brought, which</p>

<p>IN ERROR.</p> <p>THE plaintiff in error was indicted in the Quarter Sessions of Dauphin in February last, for feloniously stealing on the 22d 'January 4811 “three several promissory ,, „ . J ,. . , , “ notes for the payment of money, viz. three bank notes* “ each for the payment of five dollars, of the value each of í j 1 t£ five dollars lawful money of the United States, and a pro-t£ missory note for the payment of money, viz. a bank note “for the payment of ten dollars like lawful money, of the “ property of William Graydon esquire.” ■ r r J '</p> <p>... , ... After conviction, the record was removed to this court by writ of error, where several reasons were urged for re-1 . ... , , , , , , versing the judgment; but the only one upon which the court gave any opinion, was this, that the indictment did ° , , , , , .... , , not point out the bank or banks which issued the notes supposed to have been stolen, and consequently the charge was destitute of legal precision and certainty.</p> <p>notes generally, "'’.N1' the dcscnphon of prom;SSOry notes f°r payment m0nev is bad. It should appear on^the dictment that ^y ar® k»'ik notes of some incorporated bank, or in s”me waY *ey are lawful notes; no imincorporated bank notes in Pamsjl«anta being at present the sub-</p>

<p>taken ^before £ taivcn uexore a person who is actually a jus. tice of the hels'noUo descl'_‘bed in the writing,is good, a magistrate can,i°t devest himself of Ins judicial capacity to adnynisier an oath, while his commission *? iní°rce¡ and therefore whenever he ofS^tshalfbe taken to have *one</p> <p>Notice ofan ;'lccüll¡lt°r debt intended to be defalked is not necessary where the defalcation has ^ecn. Pje:u|y^ applies only thedefendanT the general issue.</p> <p>Where an ac-they are satisfied with the proof of its execution</p> <p>T TPON an appeal from the decision of Brackenridge J. a i 11............. ■ • ---------- ” &emdash;....... .. ' £> ~ j • at a Circuit Court for York in May 1809, the case was thus:</p> <p>It was an action of debt on a bond dated the 8th Nov. 1802, by Ross to Osburn, who had assigned it to the plaintiffs , , , * on the 22d June 1804, and the pleas were payment with leave, and a defalcation, to which the plaintiffs replied non 1 1 solvit, and no defalcation.</p> <p>On the trial of the cause, the defendant offered in evidence _ ' the deposition of Obadiah Underwood., taken under a rule- of court- which authorized depositions to be taken before a jus- . - . Trr J tice of the peace of Washington county; producing at the same time a certificate of the prothonotary of Washington county, that William Meetkirke before whom the deposition had been taken, was a justice of the peace for that county, But the plaintiffs objected, because the deposition did not state, nor did it appear anywhere on the face of it, that , ‘1 . ' ’ Meetkirke was a justice. His honour overruled the objec+inn '</p> <p>.... , . , Another objection was taken to a part of the deposition, because it contained evidence of a settlement between Os-burn and Ross, by which it appeared that Osburn was debted to the defendant after crediting the amount due on the bond; but it did not distinctly appear whether this tlement was before or after the assignment. Judge Bracken-ridge suffered the part in question to be read, at the same time instructing the jury, that unless they could fairly collect from the deposition that the settlement was before the assignment, they should disregard it altogether.</p> <p>The jury found a verdict for the defendant, which the judge refused to set aside, and the plaintiffs appealed.</p>

<p>¡'So long as -wild bees remain in the tree where they have hived, notwithstanding the tree is upon the land of an individual, and lie lias confined them in it, they are not the sub. jccl of a felony; and therefore proof of their having been taken with their honey from fcuch a tree by a third person, is not a justification of words imputing a felony to such third</p> <p>' ' After the words l;u dm the declaration are proved, the plaintiff may , give in evidence other words, tamable in themselves, and spoken since tile suit brought, to shew the malice of the defendant, ; j</p> <p>THI5 was an appeal from the decision of Judge TeateS at a Circuit Court for Dauphin in May 1809.</p> <p>It was an action of slander brought against Mease for saying of the plaintiff, “ you are a damned thief, and I can prove “ it;” to which the defendant pleaded “ not guilty, with leave “to justify.”</p> <p>On the trial of the cause, after proof had been made of the words laid in the declaration, the judge, at the instance of the plaintiff’s counsel., permitted evidence to be given by a witness, that in the autumn of 1803 she heard the defendant say “ he had called the plaintiff a thief, and would prove it “ before all the people of Harrisburg, He had stolen liar- “ marts bottle.” This action was brought to March term 1803, and the trial was on the 31st May 1809.</p> <p>Under the plea of justification, some evidence was given to shew that the plaintiff had in the night time been concern- , | j i ed in taking a swarm of wild bees, together with their honey, from the top of a tree on the land of another man, who had confined them in their hive or skep; but his honour, in addi.tion to the circumstance that he did not think there was proof of the plaintiff’s participation in this act, charged the ijury, that if they were satisfied it was the practice and usage in the county, for the person who discovered a bee tree on another man’s land to take it without being considered as any more than a trespasser in cutting the tree, it ought to weigh greatly in favour of the plaintiff;' his opinion of the law was, that such an act did not amount to a felony.</p> <p>The jury found a verdict for the plaintiff, with forty dollars damages, which the judge refused to set aside, and the defendant appealed.</p>

<p>tuéstateofiamsy foam a has always been a trustee for the to all°the personal property of the testator not disposed of by</p> <p>^ money jlad and received will lie ae-ainst an executor in his personal character to recover a distributive portion of the tesby his will, and to the*executor’s hands as trus-</p> <p>rT,HIS was an appeal from the judgment of the late Mr. -*- Justice Smith at a Circuit Court for Lancaster in May t ono</p> <p>It was an action for money had and received, brought by the plaintiff, who was the widow of John Wilson deceased, to r , , r i i i- , ,. recover from the defendant who was his executor, her distributive share of so much of the testator’s personal property as was not disposed of by his will. The writ and the recital in the declaration v/ere against the defendant as executor; ,, . , . „ . . the count was against him personally, as upon a promise in his individual character. Pleas non assumpsit, and payment,</p> <p>Upon the trial of the cause the material evidence was this, John Wilson the testator, on the 31st of August 1789 made his last will and testament, in which, after ordering that all his just debts and funeral expenses should be fully paid out of his personal estate, he gave to the defendant, who was his son, the plantation on which he then lived, with all his mountain and timber land in Chester county, in fee simple. He gave to his daughter Mary 400/-, to his daughter Margaret 400/., to his grandson John Hamilton 100/., to his grandson John Teters SOI., to his son-in-law Samuel Bigart 10/. without any deduction, and to his granddaughters Sarah and Margaret Bigart SOl. each. He further ordered that his well beloved wife Jane Wilson should have the profits of the place he lived on during her natural life, and after her death that it should fall into the hands of his son John. He then directed that “ the land where Robert Knox “ now lives on in Leacock township, together with fifty acres “ of timber land lying in Lampeter township, be sold after my “ decease, and 100/. of the purchase money be paid to my “ daughter Margaret Hamilton, and the interest of lQOl. “ to be paid to my daughter Mary Teters, and at her de- “ cease the said 100/. to be divided equally between her “ children. And lastly, I do appoint and constitute my be- “ loved son John Wilson, and my son-in-law Robert Hami'lu ton to be my executors to this my last will and testament, “ and I do hereby disannul all former will or wills, and con- “ stituting this and this only to be my last will and testa- “ ment.”</p>

<p>IN ERROR,</p> <p>THE plaintiff in error was indicted in the Quarter Sessions of Berks county, in April 1810, of a perjury; and upon his conviction the following sentence was passed upon him by that court: “ And now to wit, this 1st day of April , . A , r 1810, the sentence and judgment of the court is, that the “ said Frederick Kramer pay a fine of 100 dollars to the com-“ monwealth, undergo an imprisonment at hard labour for “ six calendar months from this day in the gaol of Berks J ° “ county, and during that time be confined, fedclothed,, and “ treated as the law directs; and further that the said Frede- “ nek Krocmer shall hereafter be disqualified from holding “ any office of honour, trust, or profit in this commonwealth, “ and from being admitted as a legal witness in any matter “ of controversy, and that he pay the costs of prosecution, “ and stand committed until this sentence be complied with.”</p> <p>The courts of state have juris^?u?n criminal of-fences which wel!e not caP*ta® at the passing of the act of . 1722 Their jurisdiction re-"I?*11113 un_ though since t,bat act’ s<rTera^ were then felohav^ceased'to be so; they accordingly have</p> <p>Persons con-dai?f Uable to fine andimhard'labour &but not to any par-treatment as°to diet or disciPlme- se”‘ tence therefore which adjudge* that the convict shall be confined,fed, clothed, and treated as the law directs, is erroneous.</p> <p>The judgment being removed by writ of error to this court, various exceptions were taken to the record and proceedings; but the two principal errors assigned were, 1. That the Quarter Sessions had no jurisdiction of perjury. 2. That the judgment was for more than the law directed, inasmuch as the law prescribed nothing in relation to the feeding, clothing, or treatment of a convict for perjury.</p>

THIS was an ejectment for eighty-five acres of arable and eighty-five acres of woodland in the county of York, which was tried .before Brackenridge J. at a Circuit Court for that county in May 1809'.

<p>IN ERROR.</p> <p>THIS was an action of debt upon abend in the Common r r, 7 • „ Pleas or Dauphin, to which the plaintiffs m error pleaded non est factum and payment.</p> <p>„ , _ On the day preceding the trial of the cause, their counsel moved for leave to withdraw the plea of non est factum, which the court refused to permit, and upon this writ of error being brought, he assigned it for error, stating the inconvemenee of the court's decision to have been, that the counsel of the defendants were thus precluded from concluding.</p> <p>It is not error in the Common Pleas to refuse leave to the defendant, immediately before the trial of the cause, to strike out the plea of non est factum, and to rely solely upon the plea of payment.</p>