Volume 3 — Yeates's Pennsylvania Reports

INDICTMENT for a misdemeanor, found at a Court of Oyer and Terminer.

Debt on seven obligations. Plea, payment. The defence set up, was that' the bonds in question, with six others, were the consideration of certain lands sold by Old to the defendant, free of all incumbrances, with a covenant of warranty in the deed, against Old and his heirs, and all other persons claiming under Edward Hughes, deceased, who died intestate.

Debt 450I. sur bond conditioned for the payment of 2251. on the 1st June 1798, the consideration of two tracts of land. Plea payment, with leave to give the special matter in evidence. The defendant’s specification was general, that the title of the lands sold by Sterret to Born was not good.

Dower of 7 messuages, 2 barns, 7 gardens, 2 orchards, 30 acres of meadow, 500 acres of arable land, and 200 acres of woodland, in Little Britain township.

The plaintiff declared in trespass for mesne profits of two fifth parts of two parcels of land, situate in New London township, from 10th May 1780 to 10th September 1795. The defendant pleaded not guilty and the statute of limitations. The plaintiff shewed the record of an ejectment brought by his nominal lessee against the defendant, wherein a demise was laid on the 10th June 1788 for seven years.

Debt, sur legacy. Plea, payment, with leave, &c. John Kennedy, the father of the parties, by his will, dated 15th June 1778, devised to the defendant,-his eldest son, two fifth parts of his estate, real and personal, he paying to his brother John 500I. when he should become of age.

<p>Debt 148I. on bond. Pleas, payment with leave, &c. plene administravit and want of assets.</p> <p>The facts turned out on evidence, as follow. The bond was dated 27th October 1768, conditioned for the payment of 74I. within one year, with legal interest. Ten different sums were indorsed, paid on account of interest, the last bearing date on the 12th October 1780.</p> <p>Robert Johnston, the obligor, made his will on the 26th'July 1769, and thereby appointed Caleb Johnston, the now defendant, and Simon Johnston, since deceased, his executors, and soon afterwards died.</p> <p>Mary Goodwin, the obligee, made her will on the 27th November, 1782, and thereby appointed Francis Goodwin and the aforesaid Caleb Johnston her executors.</p> <p>On the 17th January 1792, the said Caleb Johnston settled his administration account on the estate of the obligor, in New Castle county, in the state of Delaware, whereby there appeared a balance in favour of the accountant of 477I. 7s. i-Jd.</p> <p>And on the 14th July, 1796, Francis Goodwin assigned the obligation to the plaintiff.</p> <p>insisted, that the present suit could not be supported by the plaintiff as assignee, Caleb Johnston one of the executors of the obligee not having joined in the assignment. It was the folly of Mrs. Goodwin to nominate him her executor, who was one of the executors of her obligor, and known by her to be such.</p>

Debt 933l. 14s. yd. for an escape. Plea nil debet and issue. It appeared, that the plaintiff as surviving partner, recovered judgment against Robert Shewel, and issued a fieri facias thereon to August term 1795, which was returned “nulla bona.” He' afterwards took out a capias ad satisfaciendum, returnable to August term 1796, debt 928I. 7s. 2d. costs 5I. 7s. 5d. which was returned by the now defendant then sheriff “ cepi corpus et committitur.

Ejectment for seven tracts of land on Leekawaxen creek, in Upper Smithfield township, containing 2100 acres.

Suit on a policy of insurance, on two trunks of merchandize, laden in the brig Nancy, Henry Geddes, master, from the port of Philadelphia, to Petit Guave, whereon the defendant had subscribed 1200 dollars. It appeared, that the goods had been fitted for a French market, and that the prime cost thereof was 1409 dollars 45 cents.

Suits on a policy of insurance, on goods in the sloop Sally, William Seabury master, beginning at and immediately from her loading, from Philadelphia to New York. Vanuxem subscribed 600 dollars, and Pratt and Kintzing 769 dollars on the nth August 1797, at a premium of ij per cent. There was a clause in the policy that Indian corn should be free from average. The two causes were tried together by the same jury.

Ejectment for a house and lot of ground in the city of Philadelphia.

Captain Bishop, bearing a commission in the army of the United States, was put under an arrest, and tried by a court martial, for a misdemeanor in defrauding the soldiers of their rations. Held: that bail in another state suffering a principal to come into this state, where he was arrested, shall not be allowed to take him out of the custody of the sheriff’s officers, and remanded Banks to gaol.

Ti-ie plaintiff in error was convicted on the 17th April 1800, in the Court of Quarter Sessions of Northampton county, of having begot a bastard child on the body of Mary Sterner, on the 10th April 1785. The court thereupon rendered judgment, that the said Henry should pay a fine of iol. and give security himself in 200I. and two good sureties in iool. each, that the child shall not become any expence to the township of Lower Saucon, where it was born.

This was a report of referees, finding for the defendant the sum of 2300 dollars, signed on the 9th May 1800. Held: that though the plaintiff could not discontinue without the leave of the court, he was not obliged to take the verdict, but might become non-suit. The reason of the laws suffering a nonsuit of the plaintiff *is grounded on possible‘surprize, and to prevent his right ^ , being concluded.

Rule to shew cause why satisfaction should not be entered in this action, on payment of 23 S| dollars into the prothonota-ry’s office. Judgment was obtained on the 19th March 1798, for 375 dollars, and a fieri facias issued to September term following, which was returned nulla bona. Whereupon a testatum fi. fia. issued to Chester county, returnable to March term 1799, on which was returned goods levied.

Replevin for goods distrained for rent, brought to December term 1798. Afterwards “all matters in variance between the “parties in this cause were referred to William Hamilton, John “Dunlap and John Dorsey, or any two of them.” The referees reported the sum of 1000 dollars to be-due to the defendants, upon a balance of all accounts, by them settled up to the 1st July 1800.

Writ of error to Luzerne county, on a conviction of forcible entry and detainer on the 21st August 1799, whereon judgment had been rendered for the commonwealth.

Case stated for the opinion of the court, on a scire facias brought on a mortgage, dated 18th August 1795, for 1000 dollars ; recorded two days afterwards. It is agreed, that the mortgage in question was duly executed, and given for a valuable consideration.

On a certiorari to Ebenezer Ferguson, esq. a justice of the peace of the county of Philadelphia, he returned, that he had fined the defendant 15s. for selling three fourths of a cord of wood, contrary to the ordinance of the district of Southwark, together with 2s. 6d. costs. The ordinance was passed on the 10th June 1800, to restrict the cording of all wood to the public corder.

<p>A foreign attachment issued in this court, returnable to the last March term; and afterwards a second foreign attachment at the suit of Potter, Page and Price in co. A domestic attachment afterwards issued to the same term, at the suit of George Dobson, founded on the solemn affirmation of Thomas Biddle. He declared that he was well acquainted with the defendant, Baillie, during his residence in Philadelphia; that he came there about the month of November 1799, as an unmarried man, took lodgings, and rented a store in the city, where he carried on trade; and that the said Baillie frequently declared to him his intention of taking up a permanent residence in the city, but had since absconded, &c.</p> <p>On these facts, which were not disputed, Mr. John Ewing of counsel with Dobson, moved the court to quash the foreign attachments, and cited Lazarus Barnet’s case. 1 Dali. 152.</p> <p>insisted that the defendant could not be deemed an inhabitant, within the attachment law, not having resided twelve months within the state, agreeably to the opinion delivered in Taylor and Finlayson v. Knox et al. 1 Dali. 159.</p>

Mr. S. Levy moved to discharge the defendant on common bail, there having been an amicable action entered by-the plaintiffs against the defendant some time ago, for the same cause of action, in Washington county. urged that no bail was given in the amicable suit.

<p>The libellant obtained a divorce from bed and board from the respondent her husband, on the 15th September 1792. A curia advisare vv.lt was then entered as to alimony.</p> <p>Afterwards on the 15th June 1793, she waved her claim to alimony in -open court.</p> <p>On the first day of the present term, she filed her petition for alimony, stating therein, that her husband had represented to her, that he was possessed of no property; but that she is well informed, he was now possessed of property to a considerable amount.</p> <p>objected to the court’s goring into the inquiry. The wife has waved her right by matter of record, and is now completely barred. If a >-57 woman refuses to accept a jointure, she shall not be at liberty to make a second election. The law directs, that the court shall exercise their discretion in allowing alimony, “ as the justice of “the case shall require.” 2 Dali. Laws, 387, § 10. But alimony ought not to be forced on a woman after she has disclaimed it by her free and.deliberate act. The waver of an use is a complete disclaimer. 3 Co. 27, b. Waver is a perpetual dereliction. Co. Lit. 348, b. Waver in the case of a felony, is a full abandonment. 5 Co. 109.</p> <p>Where there is a conveyance of a matter of a permanent nature, an election once exercised shall conclude the party. But the right now insisted on is occasional, and depends on a variety of circumstances.</p> <p>If the husband was disabled by accident or disease from maintaining himself and family, and the court on a hearing should disallow the claim of the wife to alimony, this would be a stronger case than the present And yet it will not be pretended, that if the husband should be restored to his health, or receive an accession to his property, a future claim of alimony would not be received and granted. The waver here of the wife was founded on a supposition, that her husband was overwhelmed with debts and unable to make her any allowance; but that foundation no longer exists. Her act in 1793, was a nonsuit for the time, but no perpetual bar.</p>

EjectmeNT for one messuage and 150 acres of land on the waters of Ten Mile Creek. It was admitted, that the lessor of the plaintiff, and Samuel Parkhurst, under whom the defendant claimed, originally held the lands in question by improvement rights. The facts turned out in evidence as follow: — Stephen Carter settled on the lands in 1785, built a house and barn, planted a nursery, and cleared about 30 acres.

<p>Ejectment for 139 acres of land on Mingo Creek waters.</p> <p>The plaintiff claimed under an entry made by Francis Hull, of 400 acres on Monongahela river, with the Virginia commissioners on the 13th November 1779, on which a survey was made by Nevil and Ritchie of 269 acres and 136 perches, striet measure, on the 4th July 1785. .The plaintiff set up another survey of 139 acres made by Thomas Stokely, and which he alledged was founded on a warrant of re-survey, or order of the board of property, but which were not produced.</p>

<p>Actual settlements under the law of 3d April 1792, necessarily involve in them a personal residence on the land.</p>

The defendant was indicted on the 18th section of the late general election law, passed 15th February 1799, (4 St. Laws. 343) for that he, being an alien, and not qualified to vote in this state, did appear at an election in the town of Franklin, on the 8th October 1799, for the purpose of issuing tickets, and of influencing the citizens qualified to vote.

<p>Indebitatus asstimpsit will not lie on a collateral promise guaranteeing the payment of goods delivered to a third person, though the goods have been charged by the vendor to such undertaker.</p>

Ejectment for one messuage and 400 acres of land, surveyed on a warrant for Henry Meade. The plaintiff claimed under a warrant to Henry Meade, dated 17th March 1796, for 400 acres north-northwest of Ohio and Allegheny and Conewango creek, between the outlet of Little Co-neat lake and Sandy creek, granted in pursuance of the acts of assembly, passed on the 3d April 1792, and 9th March 1796.

Ejectment for 300 acres, on Sewickley Old Town creek. The plaintiff claimed one moiety of the land under a special order to David Franks, of the 1st April 1769, a survey thereon made 1st June 1769, and a conveyance from Franks.

Ejectment for 300 acres of land in Union township. The plaintiff claimed under a warrant to Frederick Merchant and Peter Bright for 250 acres of land on the waters of Big Sewickley, adjoining land of Jacob Millison dated 10th February 1786; upon which a survey was obtained on the 12th April following of 268 acres and 155 perches, and a patent issued thereon, on 27th October 1787.

Ejectment for 216 acres of land in Morrison’s Cove. The plaintiff claimed under a warrant to Ludwig Wissinger for 200 acres in Morrison's Cove, on both sides of the Roaring Spring Run, adjoining John Ulrey on the northwest, and Samuel Wallis on the southwest, dated 14th September 1786. On the 9th November 1786, Wissinger conveyed to Stevens, in consideration of 20I., and he two days after procured a survey of 216 acres and allowance, including the lands in controversy.

Dower. Pleas, satisfaction and acceptance. The following case was stated for the opinion of Yeates and Smith, Justices, at a Circuit Court, held at Washington, in October 1800. Joseph Creacraft having married the widow of Jabez Baldwin, brought a suit for her dower of one third part of ■ 399 acres of land.

Mr. Ingersoll, in behalf of the city corporation, moved to quash this replevin, issued for goods seized in execution for the water tax. objected thereto. If the motion is made under the act of 3d April 1779, (1 Dali. St. Laws, 796,). the words are “all writs of replevin granted or issued,” &c. in the past tense, and relate only to replevins taken out before the act was passed.

Account render. Judgment quod computet had been entered last September term, and auditors had been appointed by the court. Two several days had been fixed by the auditors to take the account, but the defendant had made default. Whereupon Mr. Levy for the plaintiff, issued a capias ad computandum against him, and marked bail in 20,000 dollars. now moved to dischargé the bail, or at least to moderate the sum.

Covenant against the defendants, on a policy of insurance, subscribed by Charles Pettit, their president, under their common seal, upon all goods laden or to be laden on board the brig “American,” Thomas Town, jun., master, at and from Port de Paix to Philadelphia, with liberty to touch at one other French port, on the north side of the island of Hispaniola, beginning the adventure on the said lawful goods and merchandizes from and immediately following the loading thereof…

Debt, on a forfeited recognizance for good behaviour. When this cause was moved for trial by Mr. M'Kean, the attorney general, Mr. Lewis for the defendant, submitted to the court, whether it should be tried out of its natural order, under the rules of the court. stated that, Judge Patterson, in a late case in the District Court of Pennsylvania, determined, that the United States in civil suits were entitled to have their causes first tried. By the Court.

These suits were brought for the proceeds of certain goods shipped by the plaintiffs respectively, at Port de Paix, in the schooner Mary, owned by the defendant, whereof Samuel Cas-son was commander, who arrived in Philadelphia on the 15th July 1796.

This action was brought in pursuance of an act of assembly authorizing the suit, passed 16th March 1798. (4 St. Laws, 238.) The plaintiff on the 30th May 1781, bought 75 acres of land, late the property of John Robinson, in Whitpaine township, Philadelphia county, for 715I. from the agents of confiscated estates, the said John having been declared an attainted traitor.

Ejectment for 80,000 acres of land, in Lycoming county. Two suits were brought; in one of which the lessors declared as joint-tenants, in the other, as tenants in common. They came on to trial at Williamsport, on the 22d October last, before Shippen Chief Justice and Brackenridge, Justice, when a verdict was found for the defendants, in the Circuit Court. This was a motion for a new trial, founded on the following facts, which appeared in evidence.

offered to file a certificate, signed by himself this day, that whereas the justices of the Cir•cuit Court of Allegheny county had in October last, ordered a judgment to be entered in this cause, for want of an affidavit of defence under the 20th rule of the Circuit Court, without the consent of the defendants or their attorney, and though the said attorney, in the absence of his clients, was ready and willing to proceed to trial of the merits by jury, he believed that “the…

Case stated for the opinion of the court. Joseph Morris and wife, on the 3d August 1774, conveyed a lot of ground situate in China street, in the county of Philadelphia, to the defendants, Matthew Clarkson and Edward Bonsall, in fee ; reserving a rent charge thereout of forty dollars per an-num.

Suit in debt on a recognizance for 1000 dollars, conditioned for the good behaviour of William Cobbet. Plea nil debet. ^ -, *The action against Cobbet, on his recognizance for 9J 2000 dollars, was tried at the last term, and a verdict and judgment were obtained thereon, for the commonwealth.

Case for 930 dollars lent and accommodated, and for money paid, laid out and expended for the defendant’s use. The following facts were disclosed in evidence. John C. Foster was captain of the ship Sophia, whereof the defendant was owner, and continued in his employ from June 1794 to November 1795.

<p>A supposed bankrupt assigns by apt words in consideration of 5s., his estate to the commissioners, for the use of his creditors, claiming under the commission. The proceedings fail for want of a sufficient petitioning creditor. No interest vests by the assignment.</p>

The following case was stated for the opinion of the court. • Stephen Hubbert being seized in fee of the premises, made on the 30th December 1761, his last will and testament in writing duly executed, whereby he devised as follows, after directing, that in case the provision made ®for his father and mother should prove insufficient for their livelihood, the sum of 7I. yearly should be paid them out of the yearly rents and profits of his estate: “Item, I give and bequeath to…

Mr. M. Levy proposed a point of practice for the decision of the court. This cause had been removed to the High Court of Errors and Appeals, and the judgment had been there affirmed. The doubt at the bar, was whether a scire facias could issue on the recognizance, entered into before the taking out of the writ of error, previous to the term in the Supreme Court, to which the record was remitted. He observed, that under the 17th section of the act of 13th April 1791, (3 Dali.

This was an appeal from the decision of the Chief Justice on a dispute which came before him in the vacation, respecting a set-off. The facts were these : — The plaintiff’s testator effected a policy of insurance on the schooner Lydia, Gideon Olmstead, master, for himself, and others interested and concerned in the same, which was underwrote by the defendant.

The following facts appeared on the return of the record. The plaintiff preferred his petition to May sessions 1796, setting forth, that a road for the accommodation of the public had lately been laid out from the village of Strasburgh to James Gibbons’s mill, on the state road leading from Lancaster to Philadelphia; that it runs through the improved lands of the petitioner 50 perches, and along his line 20 perches, and had been opened of the breadth of 33 feet; that the…

Debt on bond. Plea, payment with leave, &c. Turbett was surety in the obligation for John Wilkes Kittera, esq. conditioned for the payment of 179I. 9s. iod. on the 1st May 1795, with interest. Four years interest were indorsed, paid on the bond, by Mr. Kittera, who had afterwards taken the benefit of the acts of insolvency.

<p>Service of notice of a rule to take depositions on the plaintiff’s wife, though a party in the process is not good, if she has not acted in the business.</p>

Ejectment for lands in Caernarvon township. John Jenkins being seized of the premises in fee, made his last will bearing date the 2 5th August 1774, wherein he devised a certain tract of land to his son John in fee, paying 200I. to two of his brothers; and to his son Isaac the lands in question in fee, paying 150I. to a brother and sister; and to his son Joseph other lands in fee.

Ejectment for one messuage, &c. and 112 acres of land in Dover township.

Debt for penalty of articles of agreement. The plaintiff offered the deposition of Robert Howie in evidence, on notice given to James Agnew, the special bail, and he attending and cross examining the witness.

Ejectment for 140 acres, 3 quarters and 18 perches, in Hopewell township. Special defence taken by Finley. The plaintiff claimed under a warrant to Hugh Purdy, dated 5th December 1764, including his improvement in the Barrens, a survey made by William Matthews on the 20th December 1764, and divers mesne conveyances to Hugh Nelson, who devised the same to his daughter Agnes, one of the plaintiffs in fee.

Ejectment for one messuage, one grist-mill, and saw-mill, &c. and 54 acres of land in Dover township. It was admitted that the lessor of the plaintiff was seized of the premises in fee. On the 27th March 1797, he entered into articles to convey the same to Thomas Paup, in consideration of 3200I. payable in instalments ; and conveyed the same to him accordingly, on the 2d May following, by deed duly executed and recorded.

Ejectment for 14 acres and 123 perches of land, in West Pennsbro’ township. The plaintiff claimed under an application, dated 9th March 1767, for 300 acres of land in the barrens of Cumberland county, joining William Caruthers and James Caruthers.

Ejectment for 300 acres of land in .Greenwood township. It was admitted that Benjamin Poultney was seized of the lands in question, prior to the 24th June 1783.

Case stated for the opinion of the court, in escape. A judgment was duly obtained against John Wray, at the suit of the plaintiffs, in the Supreme Court, founded on the report of refereés, for the sum of 144I. 17s. 8Jd., with interest from 9th August 1799 ; and a capias ad satisfaciendum regularly issued out of that court against John Wray aforesaid, directed to the defendant, then and now sheriff of Cumberland county.

Case stated for the opinion of the court. A capias ad satisfaciendum was issued out of the Court of Common Pleas of Cumberland county, on which John Wray was arrested at the suit of the now plaintiffs, and committed to the gaol of the said county.

Ejectment for 292 acres of land on the north side of Bald Eagle creek. The plaintiff claimed under a deed from Alexander Lowrey and others, assignees of the commissioners, under a commission of bankrupt against Mathias Slough, a bankrupt, to Samuel Miles, dated 12th March 1792, and by him conveyed to Scott on the 21st April 1794. The plaintiff’s counsel offered in evidence the petition of Caleb Foulke on the 15th June 1787, on which the commission of bankrupt issued.

Ejectment for 314 acres and allowance in Potter’s township. The defendant in the course of the trial offered in evidence a deed from the commissioners of Northumberland county, under their common seal, dated 8th October 1788, to John Thorn-burgh, in consideration of 13I. 10s., the same having been sold for state and county taxes for 1785 and 1786, and by Thorn-burgh assigned to Henry Drinker, on the 28th April 1795, in consideration of sol. *But the court refused the same,…

Account render. Pleas, never bailiffs or receivers, and fully accounted.

Partition. Plea non tenant insimul. The plaintiff claimed under an application and survey, in the name of John Allet, who conveyed to Daniel Jones. On the 20th May 1785, Jones conveyed to the plaintiff Bates, and Jacob Kestler as joint-tenants, in consideration of 80I. On the 23d March 1790, Kestler conveyed his undivided moiety to William Early, who afterwards on the 1st April 1794, conveyed his moiety to the defendant, M'Crory.

This cause came before the court on a rule for trial by a special jury and view ; and a view had been taken. Mr. Duncan for the plaintiff moved, that the rule for a view should be discharged with costs.

Ejectment for lands in Springfield township. The sole question was, who was entitled to an application entered in the name of Lawrence Peterson on the 4th November 1766, and to the survey of 441 acres thereon in 1767. A person of that name lived about the house of George Cro-ghan, not far distant from the premises, who said that Croghan had given him the location for his services.

Ejectment for lands on the Frankstown Branch of Juniata. The title turned out as follows : Joseph Bell obtained a warrant in 1755, for 100 acres; and John Armstrong, esq. obtained another warrant for 200 acres on Juniata, adjoining and below Alexander Lowrey, in 1762, on which latter warrant he executed a survey of 449J acres in the same year; but finding that the earlier warrant of Bell called for the lands, he agreed to divide the survey equally with him ; and Thomas…

Ejectment for 214 acres on Clover creek, in Woodberry township. The lessors of the plaintiff founded their pretensions on an improvement made by their father, Ezekiel Mobley, on lands adjoining. He settled on those lands in 1774 or 1775, erected a small house with a garden, cleared 15 or 20 acres, and begun 2 or 3 acres for meadow. He claimed the lands from Clover creek, southerly to some marked trees between him and Michael Crydor, 363 perches distant.

The following case was stated for the opinion of the court, at the last Circuit Court at Carlisle. The said Dinah Duncan was the widow of the aforesaid Daniel, and died on the 4th January 1791.

<p>A father devises to his son F. his heirs and assigns certain lands subject to the payment of 2300I. in instalments to his son P., and to his son P., his heirs and assigns other lands; but in case F. or P. shall die under 21, or without issue, then and in that case he gives the share of the son so dying unto his other son in fee ; and in either case, the survivor of his sons shall then pay to his daughter E. 500Í. out of the last payments of the instalment. Testator by his codicil orders that F. shall not sell his lands devised to him till the age of 30 years, and then he may do with them as he pleases. F. attains 21, but dies before 30 without issue intestate ; the devise over to P. is good as an executory devise. A devise may operate in different ways according to subsequent events.</p> <p>Referred to in 7 W. & S. 98; 64 Pa. 14.</p>

This cause was tried at Nisi Prius, at Lancaster, before the late and present chief justice. The plaintiff declared in a general indebitatus assumpsit for work, labour and service, and on a quantum meruit. It was stated, that he was captured during the late revolutionary war, within the British lines, by the defendant then an American officer, and brought into Lancaster county.

The defendant was arrested on a cdpias out of this court, and in September term last, Mr. T. Ross obtained a rule to shew cause why he should not be discharged on common bail.

Summons case. Sheriff returns summons served by leaving a copy with Chandler Price, the defendant’s partner, at his last place of abode. Rule to shew cause, why the service of the summons should not be set aside.

Case on two promissory notes, the one for 20I. the other for 50I. payable on different days. The defendant purchased a mulatto named Bob, from the plaintiff as a slave for life.

On a habeas corpus ad subjiciendum, the body of negro Hannah was brought before the court, and the sole question was, whether her registry was invalid, by reason of her being entered as a slave, without subjoining the words, for life. In other particulars, the registry was strictly formal.

<p>Tenant in dower may clear woodland assigned to her in dower, provided she does not exceed a just proportion of the whole tract.</p> <p>Referred to in 56 Pa. 129 and no Pa. 477.</p> <p>In Lyman’s Appeal, 31 Pa. 44, it is said that the privileges of a life tenant are much greater under the law of Pennsylvania than those recognized by the common law of England. If the tenant exceeds his rights, the act of April 10,-1848, gives the remainder man a writ of estrepement.</p>

Case for selling an unsound horse, the defendant affirming him to be sound, though he had at the time of sale the disorder called the yellow water. Vide 1 Pow. Contracts 150. 1 Lev. 102. 1 Sid. 146. 1 Salk. 211. 2 Ld. Raym. 1118. Yelv. 20. Cro. Jac. 4. Espin. 629.

On a certiorari to remove all proceedings respecting a road, from the town of Berlin to Leidig’s mill. It appeared, that on a petition for the road to September sessions 1800, viewers had been appointed, who returned to the December sessions following a certain road by courses and distances for and as a public road.

<p>On motion for a habeas corptis, the deposition of Levi Arnold was read, stating, that on the 3d February 1801, Benjamin Arnold and himself were committed to the gaol of Fayette county, on suspicion of burning the barn of Nathaniel Breading, esq., or being accessaries thereto, and that James Arnold was admitted to bail; that at the March sessions following, an indictment was found by the grand jury against Joseph Cairns, as principal in the said arson, and against himself and the two defendants as accessaries before the fact, in the Court of General * < I ^Quarter Sessions of the peace ; that a precept for holding a Court of Oyer and Terminer and General Jail Delivery, issued to the June sessions following, when the defendants were ready for their trial with their witnesses; but that Cairns, the principal, not being taken on the process, the indict ment was continued and the defendants admitted to bail; that another Court of Oyer and Terminer was held in September sessions following, when the defendants were again ready for trial with their witnesses, but Cairns having fled, the trial was postponed, and the defendants again entered into recognizances for their appearance.</p> <p>The court remarked, that application should be made to the justices of Oyer and Terminer for relief. If there was no prospect of apprehending the principal, and no special circumstances could be shewn against the defendants, such as concealing of the principal, or keeping him or the witnesses out of the way, they would certainly discharge the defendants from bail, as was done in the case of James Young v. Jack, in Franklin county; or if they deemed them to be dangerous characters, would bind them over to the peace.</p> <p>The counsel on both sides answered, that this application had been made and refused, and that they had been expressly referred to this court, by the justices of Oyer and. Terminer, at their last sessions.</p> <p>Several depositions were then read, tending to shew on the part of the defendants, their innocence and the improbability of the charge made against them ; and on the part of the commonwealth, that the defendants had threatened the state witnesses, and assisted in the escape of Cairns, the principal, from justice.</p> <p>moved, that a habeas corptis might issue to the bail, that they might be discharged from their recognizances. The defendants were, in a legal sense, under actual confinement and restrained of their liberty; their bail might surrender them. The 3d section of the act of 18th February 1785, expressly directs, that if a person committed for treason or felony, shall not be tried the first sessions after his commitment, he shall on the last day of the sessions be admitted to bail, unless it shall appear, that the witnesses for the commonwealth could not then be produced ; and if he shall not be tried at the second sessions, unless the delay happen on his application, or with his consent, he shall be discharged from imprisonment. 2 Dali. St. Laws 243. This law is obligatory on the court and takes away all discretion. It is couched in strong *terms, “ it shall and may be lawful for the justices, and r* “ they are hereby required,” &c. Should a defendant be , guilty of improper practices, by tampering with witnesses, or preventing their appearance to give evidence, he is obnoxious on that score to a prosecution for the misdemeanor, but is legally entitled to a discharge from the crime laid against him. Here the indictment originated in the Quarter Sessions, and two sessions of Oyer and Terminer have passed over without bringing the defendants to trial.</p> <p>Mr. Campbell for the commonwealth opposed the motion, Here has been no oppression, or unreasonable delay on the part of the state. It is a well known principle of law, that accessa-ries cannot without their consent, be tried before the principal. They have refused that consent, and therefore have no grounds to complain of the delay.</p> <p>The 3d section of the act extends only to principals, not to ac-cessaries ; the words are “if any person shall be committed for treason or felony,” &c. Nor does this part of the act, (which is borrowed from the British statute of 31 Car. 2, c. 2, called the habeas corpus act, 3 Ruff. stat. 397) refer to any other cases, than where the party applying is in gaol, in actual custody. The first section runs, “ if any person shall be or stand “ committed or detained for any criminal or supposed criminal “ matter,” &c. The habeas corpus is to be directed to the person in whose custody the prisoner is detained ; there is to be a payment or tender of the charges of bringing the said prisoner, &c. the word prisoner being used throughout this section, and also in the 2d and 3d sections.</p> <p>Besides, it has been proved by the depositions, that highly improper threats have been thrown out by the defendants against the witnesses on the part of the prosecution, and there are strong colourable grounds to believe, that they have aided in the escape of the principal offender. Under such special circumstances the Court of Oyer and Terminer clearly possessed the power of continuing the parties under recognizance.</p>

Ejectment for 100 a acres in East Bethlehem township. The plaintiff claimed under a warrant of 8th March 1786, and a survey thereon made 30th September 1787. The defendant claimed under a judgment obtained against Samms, in March term 1787, a fieri facias to July term 1787, whereon the lands were levied, and a sale by James Marshall, esq. then sheriff, under a venditioni exponas to October term 1787.

<p>Parol evidence will not be received to prove the contents of written papers, unless they are proved to be lost, or in the possession of the adverse party.</p>

Ejectment for one messuage and 380 acres in Fayette township. The plaintiff claimed under a settlement right originally. It appeared that in 1774, the lessor of the plaintiff came upon the land, which was then unappropriated, and did work there. The next year he raised corn on five or six acres which he had cleared, and brought up his mother and sisters in the fall, and they lived together in a cabin on the land, very near the lands in question.

<p>EjectmeNT for one messuage and 400 acres of land, on French creek.</p> <p>The plaintiff claimed under a warrant to John Wilkins, jr. for 400 acres of land, north and west of the rivers Ohio and Allegheny, on French creek, adjoining a survey made for Baum, and including the claim formerly of John Wentworth, agreeably to the acts of assembly of 3d April 1792, and of the, 9th March 1796, dated 18th March 1796, reciting that he was desirous to settle and improve the said 490 acres. A survey of 373 acres and 102 perches, was made by John Power, on the 20th September 1797, it being the same tract which was surveyed to John Wentworth, on the 27th March 1794, on his improvement, dated 3d April 1792. A patent issued thereon, dated 17th July 1801, to Wilkins, which was admitted by the defendant’s counsel to be read, though the demise was laid on the 1st February 1798, and the ejectment brought to June term 1800.</p> <p>The defendant’s counsel moved for a nonsuit. The terms of actual settlement prescribed by the 9th section of the act of 3d April 1792, are not shewn by the plaintiff to have been complied with. 3 St. Laws 212. The patent since the ejectment brought, cannot dispense with the conditions originally imposed, nor have any effect. It was founded on mistake and misapprehension of the law, and is therefore void. 2 Bla. Com. 348. It was decided by the justices of this court here in October 1800, between Meade’s lessee and Haymaker et al. that the conditions of actual settlement and residence are equally obligatory under *27ul warrants obtained by Meade, as under others. 741 Though the plaintiff claims under a credit given to David Meade, by the act of 9th March 1796, 4 St. Laws 16; yet that law only removed the impediment as to his warrants, created by the acts of 22d April (3 St. Laws 581) and 22d September, (3 St. Laws 636) and operated as a virtual repeal of those acts, as to the necessity of previous improvements to such warrants. On the 14th March 1796, the Board of Property estimated the lands of Meade at 1392I., and by the act of the 9th of the same month, he obtained a credit for the same in the books of the receiver general, which might be transferred to any person, and passed as credit, either in taking out new warrants in any part of the state, where vacant land might be found, or paying arrearages of former grants. The law passed the house of representatives, obliging him to pay 30I. per hundred acres, according to the provisions of the 6th section of the act of 21st December 1784, for such new warrants as he should obtain, but it received considerable amendments in the senate on the 27th February and 5th March 1796, and was finally modified and enacted, as we find it in our statute book. It will not be pretended, that if he had received his money, he could have further claims against the state; and the legislature could not mean, that the sum passed to his credit, should be more valuable than the same sum in cash, in the hands of other persons; or that Meade and those claiming under him, should experience the benefit of the diminution of price in the lands, and not be subjected to the terms of actual settlement, equally with other citizens. The rate of lands across the rivers Ohio and Allegheny was lessened, to enable the holders of them to make efficient settlements ; and this was the great object contemplated in the law of 3d April 1792. It was calculated as a complete system of settlement, which would of itself be carried into execution. The words of the 9th section are, “ in defect of such actual settlement and residence, it “ shall and may be lawful to and for this commonwealth to is- “ sue new warrants to other actual settlers for the said lands,” &c. ; and of the 10th section, that on the actual settler making default, the commonwealth may grant the same lands or any part thereof to others by warrants. The variation of phraseology as to the two other classes of landholders, was certainly intentional. Other actual settlers, mean persons really on the lands, and the expressions can convey no other idea. The entry of such settlers therefore on such lands, whereon default has been made, is congeahle. The will of the community is supreme, and has so directed it. Warrant holders cannot pretend that they have more equity than actual settlers. If the latter aban*don their settlements, their farms are open to new ap- p plications. Why should it not be so also in the cases of *- ■ the former ? A base or qualified fee must be determined, whenever the qualification annexed to it is at an end. 2 Bl. Com. 109. There is a distinction between a condition in deed and a limitation. When the estate is so expressly confined by the words of its creation, that it cannot endure for any longer time than till the contingency happens, upon which the estate is to fail, this is a limitation; and the estate may be defeated thereby without any entry or claim to avoid it. Ib. 155. The estate here is at the utmost a chattel interest, which terminated on the default of the warrantee. Ib. 156. The warrant is dated in March 1796, and no settlement has been shewn under it before the ejectment was brought to June term 1800, more than four years, though it should have been made in two years. On a condition precedent, the party has no estate until the condition be performed, even if the condition has become impossible. Ib. 157. 2 Dali. 317. Co. Lit. 206, b. On a limitation, the estate determines ipso facto, without entry. Co. Lit. 214, b.</p> <p>Moreover, the argument ab inconvenienti applies forcibly in the'present instance. Unless actual settlers are encouraged to seat themselves on the lands of defaulting warrantees, the intentions of the legislature as to forming settlements by way of barriers to the frontiers will be defeated.</p> <p>The plaintiff’s counsel observed, that they had it in their power to prove a settlement under the law, but deemed it to be unnecessary. The plaintiff was entitled to a transferred credit under David Meade. It was resolved in his ejectment against Haymaker et al. that he might take out a warrant without any previous improvement, a term binding on other citizens. Was he not then confessedly in a better plight than others with their cash in hand? The act of 28th March 1787, (Loose Laws 270) grants an equivalent to the Pennsylvania claimants, for their claims either in the old or new purchase, at their option; and warrants and patents, and all other acts of the public offices were to be performed free of expense. In these particulars also, they were put in a better situation than others applying for lands. We know nothing of the original bill in the lower house, or of the amendments thereto in the senate, which have been mentioned, and which afterwards were enacted into a law on the 9th March 1796. The court have not the journals of either house before them, whereon they can judge; but this we do know in the language of the same act, that the Pennsylvania claimants “had performed on their part all the requisites neces- “ sary *to their obtaining the benefits of the said law ; and ' J “it was just that the persons complying with the terms of “ the law while it was in existence, should be entitled to the “benefits of the same.” The legislature had made a solemn engagement with the persons who had thus surrendered their pretensions for the public peace ; and the community were bound by their acts, as moral agents. We likewise find, that grants were made to the Washington and Pittsburgh academies, exempted from settlement. Why should not Meade, and those claiming under him, have the same indulgence ?</p> <p>The sentiments of the court on the subject of settlement on Meade’s rights were delivered obiter, in the case of Haymaker. The point was not argued, nor was the question directly before the court, and is therefore open to discussion. If the two laws of 1794 had not passed, Meade might have obtained vacant lands any where within the state. What we insist on is, that the law of 9th March 1796, was meant as an honest fulfilment of the public plighted faith by the act of 28th March 1787, unfettered by terms of settlement or any other conditions whatever, unknown at that time.</p> <p>But it has been said moreover, that the warrantee never had more than a chattel interest, and right of interest in these lands, though he has paid the full consideration to the state. And it is assumed as a ground of argument, that the estate, such as it was, determined ipso facto by its limitation. This is denied, not only on the express words of the law, which prescribes a certain mode of issuing new warrants vacating the original warrants, but on the authority of the decision of this court in Morris’s lessee v. Neighman and Shriner, in May 1799. The warrantee, by payment of his money, and receiving possession of the land, obtains an estate on certain conditions; and to take advantage of a condition broken, there must be an actual entry. Co. Lit. 218, a. 2 Bl. Com. 155. A stranger cannot enter, but only the grantor or his heirs. Co. Lit. 214, a.</p> <p>It has also been objected, that there is a difference of expression in the 9th and 10th sections of the act of 3d April 1792, as to vacating the interests of warrantees and actual settlers. It will be clearly found, that the former section equally respects both, where defaults have been made as to settlements ; and that the latter section is merely confined to the instances, of actual settlers not taking out their warrants within ten years after pass ing of the act. Admit an entire equality of equity between the two classes of landholders, though the warrantees have paid their money into the coffers of the state, why in the reason and nature of things, should entries on the land without authority *be allowed in the case of the warrantees, and not as to r* „„ the settlers ? *The advocates of the pretensions of the ^ '' latter, will not contend, that in default of the full complete settlement and residence pointed out by the law, one actual settler may dispossess another of his farm, on the pretence of the interest of the latter being determined by its limitation, and that the entry of the latter is congeable. Such a doctrine would produce infinite disorder and confusion. If inconveniences are to be regarded in the exposition of the law, it will certainly be necessary to adopt the rule, that some public authority should determine between the contending parties ; that they should not be permitted to judge and decide on their individual claims, and carve out their several remedies at their will and pleasure. No one can doubt that the peace and welfare of the community are intimately interested herein.</p>

Covenant. Plea covenants performed. The action was brought on an article of agreement, dated 8th March 1796, whereby the plaintiff had sold all his right and claim to an improvement of 400 acres, north and west of the river Ohio, adjoining, &c. in consideration of 125 dollars, payable on the 1st May 1796, and the like sum in one year thereafter.

<p>Maihem. The indictment stated, that Christopher Reiker, late of, &c. on the day of &c. contriving and intending one David Hill to maim and disfigure, at township, in Westmoreland county aforesaid, with force and arms, &c. in and upon the said D. H. in the peace of God and of this commonwealth, then and there being, on purpose and of his malice aforethought, unlawfully and feloniously did make an assault, and the said C. R. with both his hands, the right eye of him the said D. H. on purpose, and of his malice aforethought, then and there, unlawfully and feloniously did gouge and put out, with an intention him the said D. H. in so doing, in manner aforesaid, to maim and disfigure: to the great damage of the said D. H. and against the peace, &c.</p>

Ejectment for one messuage and ioo acres of land in Salem township. The lessor of the plaintiff settled on the lands in question in 1775, cleared 12 acres and had 26 acres under fence. He continued living in his cabin with his family cultivating the land, until he was driven off by the Indians, with the other inhabitants, in the fall of 1777. He returned in the following year and threshed out his grain.

Ejectment for one messuage and 227 acres in Derry township. The plaintiff claimed under a warrant dated 1st December 1788, and a survey thereon made 15th April 1789.

Ejectment for lands in Providence township, brought to November term 1793. The facts on each side turned out in evidence as follows : ■ The plaintiff claimed under an ancient settlement and improvement, made near the head of the Snake Spring, begun in 1754 by Thomas Croyle, and continued by him and those who held under him, whenever the state of the country would admit of it, until December 1788. Valuable improvements were made on the land, as well by buildings as otherwise.

EjectmeNT for 108 acres and 152 perches, in Coleraine township. The plaintiff claimed under a slight improvement of some adjacent. land: made by James Wells, who sold to Edward Logston, on the 16th January 1765. Logston conveyed to the lessor of the plaintiff on the 26th of the same month.

Case stated. Isaac Melcher, of Grseme Park, in Horsham township, in Montgomery county, esq. being seized of estate personal and real, made his last will and testament in the words following, dated 22d May 1788. “It is my will, that my just debts and funeral expences be “fully paid and satisfied by my executors hereafter named, as “soon after my decease as possible.

A Motion was made at the last September term, for a rule on Mr. Dallas, to shew cause, why an information in the nature of a qtto warranto,… Held: were compatible, as he did not hold the collectorship immediately under the United States’ government; but in the instances of Jonathan Williams (commissioned as a colonel of artillery) and Robert Wharton, (commissioned as a captain in the cavalry) his opinion was, that the several offices, which they held respectively, were…

Covenant was brought on an article of agreement, dated 5th April 1775, executed between the intestate and Eleanor and Robert Young, whereby the former agreed to sell to them 150 acres of land in East Fallowfield township, at 40s. per acre, payable in instalments in five years.

new trial. The cause was tried during the present term. Indebitatus assumpsit was brought for plaister-ing two large houses in the city; and on the trial, it appeared that the parties had agreed, on the 27th February 1797, at the rate of 2s. per square yard, the workmen to find the materials ; the usual price at that time being is. per square yard if the owner of the house furnished the lime, sand, hair, &c. The plaintiffs claimed the balance of 412I. 9s. 6d. or 434I. 8s.…

This cause was tried at Harrisburgh, on the 21st October last, before the Chief Justice and Judge Bracicenridge, when the jury gave a verdict for the plaintiffs for 169I. 16s. A motion was made for a nonsuit at the trial, but the same was disallowed; and afterwards a motion in arrest of judgment which was overruled.

Debt was brought on an obligation for ioool. lawful money of North Carolina, dated 30th November 1786, conditioned for the payment of 500I. like lawful money on the 1st November 1787.

Ejectment for a house and lot of ground in the city of Philadelphia. It was admitted that Casper Silvius died seized of the premises in fee, in October 1793. It appeared in proof, that he left three sisters living in Germany, two of them being the lessors of the plaintiff, and the third named Catharine, who intermarried with one Goble, by whom she had issue three children, and afterwards with one Palaster, by whom she had issue two children.

These were two-actions of covenant, brought on two policies of insurance dated 18th April 1797, the one on the cargo of the schooner Felicity, FIulings… Held: that where the obligee of a bond has given promissory notes to the obligor, and afterwards assigns such bond, the notes though not due and payable at the time of the assignment, may not be defaulked against the bond, provided the same have come to maturity previous to the institution of 'the suit on the bond.

Scire facias. The following case was stated for the opinion of the court, and agreed to be considered as a special verdict. Held: that an auctioneer has a possession, coupled with an interest, in goods which he is employed to sell, not a bare custody, like a servant or shopman ; though, he is like a factor in some instances, in others the case is much stronger with him than with a factor.

This suit was tried at bar last September term. It was debt on a bend dated 23d April 1796, conditioned for the payment of 337I. 10s. in six several instalments, which was informally assigned to Harrison, on some day previous to the 21st January 1797, and whereon the assignee had received from the obligor 50 dollars on the 2d February, and 150 dollars on the 24th April 1797.

Trespass quare clausttm fregit. The following case was stated for the opinion of the court, and agreed to be considered in the nature of a special verdict.

It was also contended, that notice of the abandonment to the broker did not chai'ge the underwriter, unless it was traced to him also. The defendant urged that the broker was the agent of the assured, being employed by him. Lex Mercat. Red. 456. Weslc 65, § 8. The local circumstances of both countries do not disagree in this particular.

Motion to discharge the defendant from an arrest on the following affidavit by him made : That he came to Philadelphia on the 14th March instant from Northumberland county, for the purpose of attending the Supreme Court as a suitor, in a cause against him by Cochran and Thursby, now pending in the said court; that on the next day he was taken on a bail piece in a suit wherein J ohn Plankinhorn is plaintiff, and on the day following, being in custody, a capias was served on…

■ The scire facias in this cause was tested on the 19th March 1791, returnable to the September term following; but, by a mistake in the prothonotary’s office, was entered in the docket as of March term 1798.

Judgment was confessed in favour of the plaintiffs, subject to the opinion of the court, on the following case.

The plaintiffs declared on two counts, ist. On the defendants’ promissory note, dated 9th June 1798. 2d. On another note dated 19th June 1798. On a trial this term, the jury found the following special verdict.

Case stated for the opinion of the court. — Summons in debt 260I. returnable to September term 1800, in Montgomery county. Sheriff returned, summons served on Joseph Norman, and nil habet as to John Norman. An action was commenced in the Court of Common Pleas of Montgomery county to February term 1799, by the above plaintiffs against John Norman, one of the above defendants, and judgment was entered for the sum of 127I. 11s. ofd. in August term. 1799.

Ejectment for 200 acres of land in Frankstown township. The plaintiff claimed under a warrant to Edward Nicholas for 150 acres, including his improvement, about one and a half miles from the forks of Frankstown Branch, in Cumberland county, dated the 6th September 1762, on which 7I. 10s. was paid into the office of the receiver general, and a survey thereon of 199 acres and 17 perches, made 25th May 1765, by Samuel Finlay, who acted under Richard Tea, the surveyor of the…

Ejectment for 358Í acres in Upper Bald Eagle township. The plaintiff claimed under an application dated 3d April 1769, No. 794, for 300 acres of land, and a survey thereon of 358^ acres by Charles Lukens, on the 12th March 1775.

Ejectment for 50 acres of land in Lark township. The plaintiff claimed under a warrant to John Brown, dated 5th April 1788, for 50 acres, including an improvement, bounded, &c.; interest to commence from 1st March 1761; and a survey made thereon by James Harris on the 8th March 1796. Brown had raised a crop on the land in 1788, but neither he, nor the persons claiming under him, had any actual subsequent possession.

Ejectment for 190 acres of land in Lack township. The cause depended wholly on the validity of a sheriff’s deed.

The defendant was tried at the last Circuit Court for Franklin county on the 29th September 1801, before Yeates and Smith-, Justices,, and convicted of perjury on the following indictment. Of August sessions, Anno Domini 1800. Franklin county, ss.

An indictment was found against the defendant, for a nuisance, in May sessions 1801, as follows : Bedford county, ss.

Ejectment for two messuages, &c. and 655 acres of land in Bedford township. The lessor of the plaintiff deduced a title to herself under two warrants and surveys, to her father, Robert Callender, who on the 7th June 1773, conveyed the premises to her first husband, William Neil and herself, as joint-tenants in fee. Neil died, and she afterwards intermarried with Thomas M‘Intire, whom she survived.

Ejectment for 170 acresCf land in Air township. The plaintiff claimed under a patent. The defendant claimed under a warrant and survey, and under an improvement right derived from Adam Linn and John Linn. The latter had given a bill of sale of his improvement to Daniel Besshore, dated 30th March 1790, in consideration of 3I. without any covenant of warranty.

The plaintiff declared, that the defendant had obstructed the waters of Dunning’s creek, by raising a dam therein, and overflowing the plaintiff’s -lands.

AN indictment was found against the defendant, and removed by him from the Mayor’s Court into this court. It contained five counts; the first three of them, under a law passed 15th February 1799, (4 St. Laws 332,) “to regulate the “general elections within this commonwealth ;”-the two last at common law.

A rule to shew cause why an attachment should not issue against the defendant, for a contempt in making a certain publication, was obtained at the last term, on the following affidavits.

The interrogatories having been filed in the prothonotary’s office, the defendant answered them in substance as follows upon his oath : He believed that there was no suit depending on the 8th September last, and referred to the records. He denied that he had the most distant intention to prejudice the public mind in his favour, “ or to treat with disrespect “the judicial authority of his country, for which he had always “ entertained the highest respect.

Suit against the defendant as acceptor of a bill of exchange, drawn on him by Daniel Smith, for 165 dollars, payable at 60 days sight, to David Deaderick or order, and by him indorsed to the plaintiffs. The bill was said to be accepted on the 30th April 1795, and to have been since lost or mislaid.

The different defendants were in custody in the debtor’s apartment, under process from the Court of Common Pleas, returnable to next March term. They were German passengers, and after being detained on board the vessel for thirty days, were arrested for their freight.

This was a suit brought by a mate against his former owners. The declaration stated four counts. 1. That the defendants agreed to receive the plaintiff on board their ship Ariel, as chief mate in her voyage from Philadelphia to Canton, and back again, at the rate of $40 per month; to allow him 3 tons privilege, and in defect of this privilege, -to pay him $ 500 by their supercargo ; to permit him to invest $3000, and have a state room.

An indictment was found against the defendant in the county of Berks, containing two counts; the one for a perjury, (which was substantially formal,) the other for a misdemeanor, as follows : Berks county, ss.

Action on a policy of insurance, on goods on board the brig Neutrality, William Clark, master, at and from Philadelphia, to one port in Martinico, and at and from thence to St. Thomas’s, subscribed 2d March 1798. The goods were valued at $15,000, and insured at a premium of 17-l- percent.; and the *policy was assigned over by the insured to Sparks and [*459 Lloyd on the 29th March following.

Case stated for the opinion of the court. The commissioners of the county of Philadelphia, at the time and in the manner prescribed by the late act, entitled an act “to raise and collect county rates and levies,” proceeded to make an estimate of the probable expences of the county for the year 1802, which estimate amounted to $50,000, and thereupon issued their precepts to the respective township assessors, requiring them, in the usual form, to make out a just and perfect…

<p>Major Harry Gordon, of the British army, was attainted of high treason, under the name of Henry Gordon,’ by a proclamation of the Supreme Executive Council, dated 20th March 1781, requiring him to surrender himself for trial by the 1st November following, founded on the law of 6th March 1778. 1 St. Laws 750.</p> <p>*Major Gordon was entitled by patent, dated 17th May r* 1774, to 1497 acres of land in Frankstown township, in L 47 Bedford county, which were afterwards in 1782 sold by the agents of forfeited estates to James Woods, and on the 18th April 1782 they received 2005I., the consideration thereof. Between the times of signing the preliminary articles of peace between the United States and Great Britain, on the 30th November, 1782, and the definitive treaty of 3d September 1783, to wit, on the 31st January 1783, an act of assembly passed to cure the misnomer of Gordon, who was called on to surrender himself by the name of Henry instead of Harry. 2 St. Laws 87.</p> <p>On the 2d October 1783, the Supreme Executive Council, by their president, conveyed by patent the 1497 acres to James Woods, who on the same day conveyed the premises to John Maxwell Nesbitt, who afterwards, by will, devised the same to the aforesaid David H. Conyngham.</p> <p>On the 26th October 1774, the agent of major Gordon leased the lands to Peter Titus. He was intermarried with the sister of James Karr, who was brought up by him and lived with him as an inmate. They had separate stocks afterwards, but Titus managed the farm.</p> <p>Nesbitt commenced an ejectment against Peter Titus and James Karr to April term 1789, in Huntingdon county; and pending the suit, Karr intermarried with the daughter of James Ranken, who claimed 300 acres of the land sold by the agents, under a warrant of 3d February 1755, under which no survey had been made, but which was seven years older than the warrant under which the land was first surveyed. The ejectment first came on to trial on the 4th May 1793, before M'Kean, late Chief Justice, and Yeates, when a verdict passed for the defendants, against the chai'ge of the court, and the court in bank awarded a new trial, without costs.</p> <p>It was tried a second time at Nisi Prius, on the 16th May 1797, before Shippen and Smith, Justices, and a verdict given for the defendants, against the charge of the court, on which a second new trial was ordered in bank, without costs.</p> <p>It was finally tried at the last Circuit Court at Huntingdon, on the 16th May 1802, before Yeates and Brackenridge, Justices, who differing in their opinions on the title, a verdict and judgment was rendered for the defendants.</p> <p>Conyngham, as devisee of Nesbitt, having filed a claim against the commonwealth, under the 9th section of the act of 24th March 1779, (1 St. Laws 793) for the value of 282! acres and allowance, of which he supposed Nesbitt had been evicted or dispossessed by the above judgment, an inquest was awarded by ¡a¡ 1 *the court to ascertain the same, and the inquisition, under the hands and seals of the sheriff and jurors, was now returned, valuing the same at 2179I. ios. 7d.</p> <p>in behalf of the state, objected to the confirmation of the inquisition on two grounds.</p> <p>1st. It is directed by the law of 6th March 1778, § 12, that the president or vice president in council shall cause the possession of the lands and interests, sold by the agents of forfeited estates, to be delivered to the buyers or their assigns. But here no requisition has been made to the council or executive authority, by Woods or those claiming under him, for this purpose. And there are many cases wherein one may defend a possession in ejectment, and yet not be entitled to recover as plaintiff.</p> <p>2d. The provision in the 9th section of the act of 29th March 1779 respects only the case of purchasers of the estates of any convicted or attainted traitor, evicted or dispossessed by judgment under a title paramount, in an ejectment against such purchaser, his heirs or assigns, or his or their tenants, within twenty years after sale, &c. Now here no suit was brought against Nesbitt, but he was himself the lessor of the plaintiff.</p> <p>Besides, though the purchaser is to be paid the value of the estate at the time of the eviction, yet he can have no claim to improvements made by the adverse party; and moreover, he should make a re-conveyance of the lands of which he has been evicted, before he obtains the decree of this court, for the value thereof, to be paid out of the treasury of this commonwealth.</p> <p>He concluded that the legislature only were competent to grant relief in the present instance..</p> <p>answered, that circumstanced as this case is, it would have been idle to have called on the executive to give possession to the purchaser, when it was known that Titus, the tenant of Gordon, lived on the lands at the time of the sale. It could not be known that he would basely have surrendered up the possession to the adverse claimant, until a variety of unsuccessful efforts had been made to obtain possession ; and finally, the vendee of the purchaser was compelled to bring his ejectment.</p>

CerxioraRI to John Inskeep, esq. mayor of the city of Philadelphia, to remove all proceedings before him, respecting the conviction of the defendant for huckstering.

To this, a short return was made. That on the 27th September 1802, a warrant issued for a debt under 40s. Judgment was given for the plaintiff for il. ns. iojd. debt, and 3s. 6d. costs, and that execution issued on the same day against the defendant. objected, that this was the case of rent, and that the jurisdiction of justices of the peace, in such cases, was at an end, on the 27th September 1802, when the warrant issued.

Case stated for the opinion of the court. Held: that the legacies were specific. Richardson v. Brown, 4 Ves. jr. 177. Bequest of stock, if the testator had the stock at the time, it will be considered a specific devise. Seldwood v. Mildmay, 3 Ves. jr. 310. And a specific legacy of stock was decreed, according to the value at the time it ought to have been transferred.

Action by the indorsee, against the indorsers of a promissory note. Held: (vide 2 Bos. and Pull. 62,) that a bill holder may sue a subsequent indorser, notwithstanding he has ineffectually taken in execution the body of a prior indorser and afterwards set him at liberty on a letter of licence; and according to Blackstone, J. taking the bod)r in execution by a ca. sa. only operates as a discharge to the…

This was a feigned issue from the register’s court, to try the validity of the last will of Mary Evans. The will was subscribed by three witnesses, and two of them duly proved its execution, and the sanity of the testatrix.

DoweR of 130 acres of land in Salisbury township. The tenant pleaded three pleas. 1st. A release. 2d. A jointure during coverture, accepted and agreed to after her husband’s death. 3d. An agreement between the demandant and Amos Evans, her late husband, to live separate and apart from him, on a separate maintenance of 15I. per annum, settled on and secured to her, by him.

Slander. Words of homicide, and that the plaintiff was in York gaol on that account. Plea non ml. with liberty to give the special matters in evidence. Held: that proof of the defendant’s having heard a story read out of a letter, that the master of a ship had been seized and he put in prison for running corn, and that he only reported the story, was no justification; but that every person was answerable for the slander he reported of another. Bull. 10.

Feigned issue to try the validity of the last will of Daniel Eyster. The facts were as follow : The deceased being much indisposed, sent for Jacob Rudisill, esq. one of the judges of the Court of Common Pleas of York county, to draw his will.

Ejectment for three undivided eighth parts of lands in Mon-aughan township. It was admitted, that James Dill was seized of these lands.

Libel. The defendants published on the 19th September 1800, in the York Gazette, a paper in the German language, at the instance of George Gregor by name, reflecting on the character of the plaintiff, a clergyman of the reformed church of Heidelberg.

Ejectment for lands in Newberry township. The lessor of the plaintiff made title as heir at common law in tail, under the last will of his grandfather, Henry Willis, through his father William Willis. The said William Willis, on the 2d April 1796, sold and conveyed the premises to the defendant’s landlords, in consideration of 900I. without having suffered a common recovery, and died insolvent.

EXCEPTION to the report of referees. The action was brought in debt for iool. on a bond, dated *28th February 1777, reciting that whereas the defend- p ant had sold a certain tract of land to the plaintiff for ^ 50I., if the defendant should well and sufficiently convey the premises to the plaintiff, the bond to be void; otherwise to remain in full force.

Ejectment for lands in Pennsbro’ township. The plaintiff claimed under a survey made in 1744, which called for John Ruddock’s lands on the three last courses, and was bounded by Coneodogwinet creek. The survey would not close on protraction, and in order to reach Ruddock’s line, it required that the second line should be extended 40 perches, and to come to the creek that the third line should be extended 40 perches.

Ejectment for lands in Allegheny township. The plaintiff claimed under a warrant issued to Samuel Smith, for 100 acres in the forks of the north branch near the mouth of Beaver Dam, about 3 or 4 miles from James Lowrey’s dated 3d February 1755 ; upon which a survey of 1.18 acres, and allowance was made on the 3d December 1774, by Thomas Smith, esq. (D. S.) The original warrant directed to Richard Tea, the former deputy surveyor of the district, and endorsed by Mr. T. Smith,…

Ejectment for 500 acres in Shirley township. The plaintiff’s counsel stated, that his claim depended on a written order signed by Richard Peters, esq. directed to col. John Armstrong to survey for George Croghan, esq. 4000 acres on Aughwic, Juniata and Dunning’s creek in 1761, whereon three surveys were afterwards made in November, in the same year; that one of the said surveys was appropriated to Jeremiah Warder and company, one other to George Ross, and the last to the…

Action for money had and received. The cause came on to trial on the 29th June 1802, at the sittings for Philadelphia county, when the jury found the following special verdict.

It was stated to be an account of interest paid by the treasurer on new loan debt; a balance was struck therein, as due from the estate of David Rittenhouse, late treasurer, deceased, *to the commonwealth, arising from errors in his state- p* ment of new loan debt of . . ^10,171 8s. 6-Jd. L ^44 Interest was charged thereon for 10 years, 4 months .... 6,306 5s. 8d. ^16,477 14s. 2¿d. Dollars, 43,940, 55 cts.

This was an action of trespass for mesne profits, wherein the plaintiff recovered $200 damages.

Suit' for marrying an apprentice who was a minor, without the master’s consent. The plaintiff was nonsuit on the trial. moved,'that the costs of the Court of Common Pleas only should be taxed against his client. A declaration had been filed, and the cause put to issue two terms in Philadelphia county, before the defendant removed it by ha-beas corpus, which was contrary to the 7th section of the act of 25th September 1786. 2 St. Laws 473.

MOTION to discharge Samuel Salter on common bail. He had been arrested on a note drawn by one Cottineau, payable to Hadfeg and Co. or order, for $1450, which had been indorsed by them and discounted at the bank, Salter was said to be a dormant partner of the house, and in proof thereof, a bill of sundry looking glasses sold by Hadfeg and Co. to James Stokes, on the day preceding the date of the note, amounting to $iiixVo> was produced by the plaintiffs, with a receipt…

Levari facias sur mortgage returnable this term, on which a sale of the mortgaged premises was had by the sheriff on the 30th July 1803.

Debt on arbitration bond, in the penalty of 500I. dated 14th September 1796. The defendants crave oyer of the bond and condition, and also the award, which are read to them, and agreed to be considered as spread upon the record.

<p>Ejectment may be maintained by the heirs of surviving trustee, not adverse to the interest of the cestui que trust.</p> <p>Every presumption is in favour of an ancient possession.</p> <p>Cited in 1 W. & S. 56 to show that it is only where it is proper that a trustee should have the possession of the trust property for the purpose of enabling him to execute the trust, in the manner prescribed by the deed declaring it, that he can resist the claim of the cestui que trttst.</p>

Ejectment for 300 acres of land in Springhill township. It was admitted, that Jonas Webb made a settlement on the lands in question in 1766 or 1767, and sold the same to George Gillespie, the brother of the lessors of the plaintiff. George Gillespie died in 1782 intestate, of full age, unmarried and without issue, leaving an only brother, John Gillespie, who is since dead, leaving the defendant, his son.

Indebitatus assumpsit for 106I. had and received to the plaintiff’s use. Pleas non assumpsit, and non asstimpsit infrfit sex annos, and issues. The case was this.

Case. The plaintiff’s declaration contained three counts. The first was in special assumpsit, and stated that “ whereas on * m *“the 1st June 1800, at Steubenville, in consideration 5' J “that the said Jacob, at the special instance and request “of the said James, would convey to the said James a certain “house and lot in Steubenville aforesaid, situate, &c., he the “said James took upon himself, and then and there promised “the said Jacob, that he the said James would…

The plaintiff claimed under a warrant for 400 acres, north and west of Ohio and Allegheny rivers and Conewango creek, including his improvement, adjoining lands granted to Joseph Thomas, dated 25th April 1793 ; and a survey made thereon by John Redick and John Caruthers, under the direction of John Hoge, deputy surveyor, in March 1795. The defendant claimed under John B. C. Lucas, esquire, as an actual Settler of the lands.

The plaintiffs declared in special assumpsit, and recovered against the defendant $17^ damages, on a trial. The defendant removed the cause by habeas corpus, and the question arose whether the plaintiffs or defendant should pay the costs ? •

COVENANT on a written agreement, to stand to the award of Aaron Williams, James Magrew and James Montgomery, who were chosen to settle a difference between the parties, respecting the price of a mill bought by the plaintiff from the defendant, and the improvements made thereon by the plaintiff, the parties allowing the bargain to be avoided, dated 20th February 1800.

Ejectment for 400 acres of land, in Buffaloe township, in Armstrong county, within the jurisdiction of Westmoreland county. The plaintiff claimed under a warrant for lands across the Allegheny, dated 3d February 1794, and a survey of 405 acres 112 perches, made thereon 19th April 1795. It appeared that no person was settled on the land at the time of the plaintiff’s survey.

The plaintiff claimed 400 acres of land, across the Allegheny, now in Armstrong county, but within the jurisdiction of West-moreland county, as an actual settler. He claimed under one Edward M'Gee, who was said to have first seated himself on the land, in the spring, of 1793, and obtained a survey.

EjecxmeNT for 300 acres of land in Bedford township. The plaintiff claimed under a warrant to Thomas Nelson, dated ist July 1762, for 200 acres, including an improvement made by his father, Joseph Nelson, at a place called the Shaw-anese Cabin, on the great road, about eight miles westward from Bedford, Nelson brought an ejectment against the now defendant, for these lands in Cumberland county, to October term 1762, in which a rule was obtained for the tenant to appear, and…

EjectmeNT for 250 acres of land in Bedford township. The plaintiff claimed under an application entered 17th November 1766, and a survey thereon made 10th April 1790. The defendants claimed under a warrant dated 2d November 1774, whereon interest was to commence from 1st March 1767, a survey made thereon on the 27th December 1785, and a patent dated 13th April 1786.