Volume 4 — Binney's Pennsylvania Reports

<p>A purchaser of land is not bound to accept a deed of bargain and sale, in which there is a blank left for the consideration money; notwithstanding the grantors, after acknowledgment of the deed by them, have authorized their agent to fill the blank.</p> <p>Where a deed has been acknowledged before a magistrate appointed by law to take and certify the acknowledgment, in order that the deed may be recorded, the parties have no right to make the most trifling alteration in it.</p>

In Error. Upon a writ of error to the Common Pleas of Centre county, the case was thus: England, the plaintiff below, brought assumpsit upon a book account against Lewis, before a justice of the peace. The cause was in this stage submitted to referees, who awarded in favor of the plaintiff, the sum of forty-eight dollars and thirty-six cents, with costs, upon which the magistrate rendered a judgment.

<p>Ho verdict can be recovered against a justice of the peace for the penalty of 501. imposed by the act of 14th February, 1729, upon his joining in marriage a minor without the consent of parent or guardian, unless previous notice is given to the justice, according to the act of 21st March, 1772. But although it is necessary that this notice should be given, and should precisely indicate the cause of action, it is not necessary that it should state the Icind of writ that it is intended to sue out.</p>

<p>These were appeals from the decision of Judge Yeates at a Circuit Court for Northumberland, in June 1808.</p> <p>By the report of the case the facts were as follows : Robert Moody, in whom the title to the premises was admitted to have been at the time of his death, by his last will and *testament, dated 11th August 1778, appointed his wife Abigail, together with William Maclay and William Plunket, his executors, and authorized them or any two of them, to sell his real estate, as the exigencies of his family might require, or any considerable demands against his estate might render necessary. They were to sell and convey such parts as should seem most advantageous, beginning with a tract in the occupation of Benjamin Comfort, and reserving the testator’s dwelling plantation for the last sale. The money arising from the sale of the dwelling plantation was to be divided, one half to his son James, aud the other half in equal portions to his wife and three daughters, Lucy, Agnes, and Euphemia. All the residue of his estate he gave to his son James, his heirs and assigns for ever. The testator had a son Robert, born after his decease. Euphemia, one of his daughters, died under age, unmarried, and without issue. James, the oldest son, Lucy and her husband, Agnes and her husband, Robert Moody, and Abigail the widow, were the lessors of the plaintiif.</p> <p>On the 4th of July 1783 letters of administration upon the testator’s estate, were granted to Abigail the widow, and John Macpherson, as though no will had been in existence, and on the 28th of November 1783, the administrators presented a petition to the Orphan’s Court, stating the personal estate to be 47?. 15s. Qd. and the principal of Robert Moody’s debts to be 450?., that all the children were minors, and praying an order to sell 600 acres of patented land. The court granted the order; and on the 16th March 1785, the administrators reported that they had sold two tracts, one containing 194 acres 90 perches, and the other 66¿ acres to David Hammond for 151?. But this sale was never confirmed.</p> <p>The will being afterwards found in the widow’s possession, it was proved on the 28th of May 1785. William Maclay one of the executors had previously renounced his office on the 26th of March 1785, and Abigail .the widow, and William Plunket renounced on the 28th May 1785. On the same day the widow gave her consent in writing that letters of administration cum testamento annexo, should issue to Robert Robb, David Ireland, and John Maepherson, and they were accordingly issued on that day by the register.</p> <p>The administrators cum testamento annexo, for the *purpose of paying the debts and maintaining the family, sold in the year 1786 to Vandyke one of the defendants in the first ejectment, and to Robert Ireland in trust for his father David Ireland, the defendants in the second ejectment, parts of the testator’s lands, and executed deeds in which they styled themselves executors. The deed to Vandyke bore date the 9th May 1796. (a) The sales were perfectly fair, the best price that could be was obtained, and all the purchase money was faithfully applied to the debts of the testator, and the maintenance of the family. The sales were made at the house of the widow who was present; and although all the children were at that time under age, yet there was no allegation that the interests of all concerned had not been attended to. The widow, and at least one of the other executors, approved the sales, and expressed their satisfaction ; and the former was present at the settlement of the administrators’ accounts, in which the proceeds of the sale were credited, and she received from the administrators a small balance which was due to the estate upon the settlement. The ejectments were not brought until April 1803. The youngest child was of age in 1801.</p> <p>After the sale, improvements of considerable importance were put upon the land by the purchasers, and its value in other respects enhanced; but at the trial of the cause the plaintiffs offered to refund the purchase money, to make compensation for any improvements which had increased the value of the estate, and to pay the interest in case the profits received by the defendants had not been equal to it.</p> <p>Upon this evidence, a charge, of which the following is the substance, was delivered to the jury in the case of Vandyke, by</p> <p>Ye ates J. This is a case of novelty, and attended with several questions of law, and equity.</p> <p>The first question is, do administrators cum testamento annexo succeed at common law to naked powers given to executors to sell lands, where those executors have renounced ? I hold not. - Powel, in his Essay on Devises p. 294, asserts that such power is a personal trust, and must be strictly *pursued. Where such power is given to executors to sell, survivors sell. Where lands are directed to be sold, and no one is nominated to sell, executors may sell. These points are settled. But this is not either of those cases. Here there is a surviving executor, and executors were ordered to sell. The case of Yates v. Compton, 2 P. Wms. 308, has been much relied on. It shows that where executors have renounced, and there is an administrator cum testamento annexo, such executors need not be made parties to a bill in equity to. compel the heir to sell. The answer given to this case is very satisfactory. If the administrator had a right to sell, he might have sold without any application to chancery ; and his very application presupposes that he had no such right.</p> <p>The second question is whether this power is given to such administrators by our laws previous to 1800 ? It is Baid, it was conferred by the old law of 1693. This law was but a short time in force, and contains some singular provisions. The deed must be judged of as the law stood on the 9th of May 1796. The acts of 1705 and 1794 sect. 17, have the same clauses. But the words of this section clearly relate to former sections giving the Orphans’ Court power to make distribution, and declares that where there is a will, the will shall regulate the distribution of personalty. The act of 12th March 1800 fortifies this construction ; for if the case was provided for by the seventeenth section of the act of 1794, it was idle and unnecessary to pass the third section of the act of 1800. From the title and preamble it appears to be a declaratory as well as a remedial law. But I cannot say it is declaratory as to the point under consideration, though it is so as to part of the preceding sections. I know of no case wherein such a sale has been held valid.</p> <p>In the third place, would chancery give relief in such a case as the present? If the executors had refused to sell, relief would have been given on the bill of the children. Equity would not suffer a trust to be defeated by the defect of a trustee. If the executors had directed or superintended the sale by the administrators, it would rather appear, that at the instance of the vendee, equity would direct a conveyance by the executors. But neither Robert Robb, nor William Maclay prove this to be the case; and I should suppose, that where the public sale had been attended and by one *three executors, who had all renounced, that the chancellor would long before he nounced such a decree. The evidence adduced goes no further.</p> <p>What then is the equity and the law of this case under all its circumstances? That the defendants’ case is highly equitable no one can doubt. Robert Moody was involved in debt at the time of his death, leaving a widow and four children. The oldest was eight years old, the youngest at the breast, and his wife pregnant with another. His personal property amounted only to 47i. 15s. 6d. his dwelling plantation out of order, and according to the testimony of James M’Night, the lands in dispute would not have rented for Ql. per annum. His debts were to be paid, and his widow and infant family to be maintained. Eor these purposes he directs the sale of his lands as exigencies should require, beginning with Comfort’s place first. He even contemplates that his homestead might be swept away, but orders it to be left to the last. The petition of the widow and Macpherson to the Orphans’ Court, stating the principal of his debts to be 450i., is complete evidence on that point. By the will, his debts were to be paid, and his children brought up, before the devisees were to receive any part of the moneys arising on the sales. The money of Vandyke, with the other purchasers, has fairly gone to pay the debts and support the family. On this then my charge rests. The trust was vested in the executors for the purposes of the testator’s will; and until all the money he paid for the land be paid or tendered to him, the cestuis que use, the devisees, can have no legal or equitable claim on the land. They had no legitimate right of possession. It is important in my idea, that a full and adequate tender should have been made previous to the commencement of this suit. What that sum should have been, it is unimportant now to consider. I lay no stress on the alleged acquiescence, because Vandyke’s deed, referring to the will, put him on the inquiry, and was constructive notice to him ; and because the infant children might not be conusant of their rights at the time. The plaintiff insists, that in strict law the sale by the administrators is irregular, and such is my opinion, however hard the case may be supposed to be. But strict law also must be dealt out to him ; and as the lessors of the plaintiff have not *entitled themselves to the land by a previous tender, I am bound to say that the verdict should be for the defendants.</p> <p>The jury accordingly found for the defendants, and his Honor having overruled a motion for a new trial, the plaintiff appealed from that decision to this Court.</p>

<p>In the ease of warrants descriptive of the land intended to be surveyed, either precisely, or with such reasonable certainty as is sufficient to designate it, the title attaches from the date of the warrant, if due diligence is used in obtaining a survey. If the warrant give but a loose description, allowing a scope of several miles, the title does not attach until survey. And in the case of shifted warrants or locations, where the survey is made on land different from that described, it has no effect, except against those who have, notice of it, until return into office, and acceptance by the surveyor general. - •'</p>

<p>A judgment creditor who had bought the defendant’s lands at sheriff’s sale, and conveyed them to A, appeared to a scire facias post, ann., &c., by another judgment creditor against the same defendant, gave notice that ho should insist upon fraud and combination between plaintiff and defendant, as a defence to the scire facias, and in other ways took part in the cause, but did not attend at the trial, nor give any evidence, and of course a verdict and judgment were entered for the plaintiff. A knew and approved these acts, and had a bond of indemnity from the judgment creditor first mentioned against all other claims to the land.</p> <p>Held that it was not competent to A and the judgment creditor or his representatives, afterwards to controvert the judgment upon the ground of fraud.</p>

<p>A obtained a descriptive warrant, a survey and patent, for a tract of land, to which B at the date of the warrant, had a subsisting right by improvement; but B had previously left the land and had not returned, although he was still in time to return. C afterwards went into possession and improved, but not by title derived from B.</p> <p>Held, that although A’s warrant, survey, &c., would not prevail against B’s improvement right, nor against any one deriving title from B, yet they are good against 0 a stranger, and A is entitled to recover the land.</p> <p>An improvement right is no more than a right of pre-emption which may be abandoned at the pleasure of the improver.</p>

In Error. This was an ejectment brought in the Common Pleas of Mifflin county, in the form devised by the act of 21st March 1806. The writ described the premises as “ a tract of land situate in Armagh township in the said county, containing fourteen acres and sixty-three perches or thereabouts, bounded by land of the said John Hawn,” the defendant, which was precisely the kind of description set out in the formule given by the act of assembly.

In Error. Upon error to Lycoming county, the case was thus: The plaintiff Hayes, as treasurer of the county, brought assumpsit against the defendant, in which he declared, that the defendant at the instance and request of a certain Robert M’Clure then being treasurer of the said county,did demand and receive of Phineas Bond esq., for taxes for the use of the county of Lycoming the sum of 559 dollars 15 cents, to be paid to the treasurer of the said county in satisfaction of…

In Error. This was an ejectment for 200 acres of donation land in Mercer county, to which Heyl and wife the plaintiffs claimed title in the following manner: A certain Charles Hoffman, who served in the revolutionary war as a master musician in the Pennsylvania line, died in the service iu the month of September 1780, without issue, leaving a widow Rachel Hoffman.

<p>The appointment of appraisers by an Orphan’s Court under the act of 1764, to value the lands of an intestate, and a decree adjudging them at the valuation to one of the children, when at the same time the record shows no petition to the court by the widow or any of the children, no consent of parties to the appointment, no appearance of the other children by guardian or otherwise, or notice to them, but on the contrary plain evidence that none did appear, are absolutely void ; and this may be taken advantage of by one of the children in an ejectment against him to whom the property was adjudged, or his vendees.</p> <p>Although after a length of time, presumptions may be made in favor of what does not appear, in order to support the decree of an Orphan’s Court at an early day, when its proceedings were probably irregular, yet there can be no presumption against what does appear.</p> <p>An unauthorized decree of an Orphan’s Court for the sale of lands, will not stand until reversed in a regular course of appeal, but may be questioned in a collateral suit by or against a person claiming under that decree.</p>

In Error. Error to the Common Pleas of Erie county. This was an action of assumpsit upon several bills of exchange, drawn by Miles, the defendant below, and protested for non-payment.

Ik Error. Upon a writ of error to Indiana county, it appeared, that this action was brought in the name of the commonwealth for the use of William Boales, against Samuel Young late coroner of Indiana, and his sureties, on his official bond, to recover a sum of money which came to the hands of Young as coroner, and which belonged to Boales. The defendants pleaded non est factum, and performance.

<p>The Supreme Court has no authority to try an issue in fact, in any part of the state, except the county of Philadelphia; and therefore it cannot in the western district entertain a motion for leave to file an information in nature of a quo warranto, because an issue in fact may arise out of it.</p> <p>The sixth section of the fifth article of the constitution of Pennsylvania, does not prohibit the legislature from taking away, or modifying, the powers before that time usually exercised by the judges of the Supreme Court. It was intended to have an affirmative effect, by introducing certain chancery powers, and not the negative one of prohibiting the taking away of any powers theretofore exercised.</p> <p>The Supreme Court exercised no original jurisdiction in civil actions, until the year 1786, except as to fines and common recoveries.</p>

<p>If a vessel founders, the carrier must prove that she was seaworthy, before he can bring himself within the excuse of its being the act of God ; but she need only be seaworthy for the trade in which she is employed. That which would constitute seaworthiness for a short voyage upon the lakes, may not be seaworthiness for a voyage upon the ocean.</p> <p>If the facts of the loss axe such as that it may fairly be attributed to inevitable accident, and the owner of the goods means to allege that the vessel was not seaworthy at her departure, the onus probandi lies on him, and not on the carrier.</p> <p>The man who undertakes to transport goods by water for hire, is bound to provide a vessel sufficient in all respects for the voyage, well manned, and furnished with sails, cordage, anchors, and all necessary furniture. If a loss happens through a defect in any of these respects, the earner must make it good.</p> <p>After two verdicts the same way upon the question of seaworthiness, the court will not grant a new trial.</p> <p>A carrier’s vessel must be seaworthy, or he must answer, although the loss does not proceed from unseaworthiness.</p>

This was an ejectment in the Circuit Court of Cumberland, in which the jury found the following special verdict: “ The jury find that a warrant issued from the land office of Pennsylvania, directed to the surveyor general, to survey for John Hoge 200 acres of land in Cumberland county, dated 6th April 1785.

This was an appeal from the decision of Judge Bracken-ridge at a Circuit Court for Huntingdon in June 1808. It was an ejectment for a tract of 319 acres of land, which the plaintiff’ claimed under an application of the 13th April 1767, No. 3426, in the name of Henry Mills, for 300 acres on the north branch of the Shade creek, about one mile from the Shades, joining land applied for by Samuel Kennedy, Cumberland county.

This was an appeal from the decision of the late Mr. Justice Smith at a Circuit Court for Franklin county in April 1808. It was an ejectment for four acres of arable land, four acres of meadow, and twelve acres of woodland, adjoining the town of Strasburg, to which the plaintiff proved the following title.

In Error. This cause was brought up from the Common Pleas of Cumberland county by writ of error. The plaintiffs as executors of William Lyon, formerly the prothonotary of that court, brought an action against the defendant before a justice of the peace, to recover the amount of certain official fees in a cause still depending, in which M’Manus was plaintiff.

This was a certiorari to the Quarter Sessions of Franklin, to remove the proceedings relative to a road leading from James Spear’s iron works to James Young’s mill in that county. By the return it appeared that in November 1806 a petition was presented to the Sessions, stating that the petitioners “ suffered for want of a road” between the points above stated, and praying the court to appoint persons to lay out the road.

This was an appeal from the decision of Smith J. at a Circuit Court for Eranklin in April 1808. It was an ejectment for a tract of land to which the plaintiff' set up the following title: On the 8th of August 1739 a warrant issued to one James Patterson for 300 acres situated at a place called the Bull’s Purchase, on the southeast side of Conecocheague.

In Error. The proceedings in this cause, which originated under the landlord and tenant law before two justices of the peace, were removed to the Common Pleas of Adams county, and quashed. They were then removed to this Court by writ of error, where a motion was now made to quash the writ, upon the ground that the judgment of the Common Pleas was final, by the twenty-second section of the act of 20th March 1810, 9 St. Laws 219.

To a habeas corpus to the defendant, to bring before the court the body of a negro named John, she made the following return: “ In obedience to the command of this writ I do return to this honorable court, that I have the body of negro John, the person within named, now before the court in safe and secure custody; and that the cause of his detainer is, that be is my servant to the age of twenty-eight years, duly registered according to the several acts of assembly for the…

<p>It is not necessary that a survey should recite the authority under which it was made; and where it does not, it is a matter of fact for the jury to decide whether it was made under any and what warrant. A survey of this description is therefore admissible in evidence after any warrant has been shown, under which the survey may by possibility have been made.</p>

<p>Notwithstanding an indictment for forcible entry and detainer is so defective, that in point of law it does not set out any offence by the defendants, yet in case of acquittal, the jury may make the prosecutor pay the costs.</p>

In Error! This was a writ of error to the Oommon Pleas of Huntingdon county. The defendant in error, who was plaintiff below, claimed under a deed from Richard Neave and son of the 31st August 1793. The defendant William Richardson also claimed under the Neaves, by virtue of a contract made on bis behalf by John Richardson his son, with the Neaves, on the 19th August 1793.

In Error. Upon the trial of this ejectment in the Common Pleas of Bedford County, the plaintiffs below, who are defendants in error, offered in evidence to the jury, an office copy, under the seal of the recorder of deeds for the county of Hunting-don, of a deed from George Croghan to Robert Callender, dated the 31st of August 1763, for several tracts of land in both Huntingdon and Bedford counties. *Tbe original deed appeared to have been subscribed by two witnesses, one of…

<p>A patent for land which has been surveyed under a warrant issued from the land office since the 22d September 1794, is only prima facie evidence that the warrant issued regularly, and that the settlement required by that act has been made. If there was no personal resident settlement on the land, when the warrant issued, it issued fraudulently in point of law, and the patent under it cannot prevail against a settlement made by another person subsequent to the warrant but before the patent was obtained.</p> <p>A mere improvement on the land is no authority for a warrant under that act. An improvement may be made by clearing land, and cultivating it, without residing on it. The act requires a settlement, which implies actual residence.</p>

This case came before the Court by appeal from the Orphan’s Court of Cumberland county; and now, after argument by Carothers and Watts for the appellants, and by Duncan for the appellees, the judges delivered their opinions as follows.

<p>A deed containing a recital of another deed, is evidence of the recited deed, against the grantor, and all persons claiming by title derived from him subsequently. But it is not evidence against one who claims from him by title prior to the deed which contains the recital; nor is it evidence against a stranger. Hence recitals of certain mesne conveyances contained in a patent from the commonwealth to A, are not evidence of those conveyances against B, who claims under a warrant from the commonwealth prior to the patent.</p> <p>Qu. Whether a long possession under the patent, would not make the recitals evidence.</p>

<p>To constitute a bottomry, where the interest reserved is more than legal interest, it is essential that the money lent and interest should be put at risk if they are payable at all events, or if there is collateral security given for them which is payable at all events, no matter by what name the contract is called in the instrument of writing which contains it, it is not a bottomry.</p> <p>Qu. Whether a bottomry cannot be made to secure a sum of money with legal interest, payable at all events, and accompanied with collateral personal security.</p>

This was an action for money had and received, which was tried before the Chief Justice at Nisi Prius in June last, under an agreement between the parties, for the purpose of ascertaining whether the plaintiffs had a right to or in a certain quantity of tobacco and sugar, shipped by Barker and Annesly in the ship Favorite to Cadiz, or to or in the proceeds or any part thereof, whether the same were in money, bills, notes, or any other thing of value.

This was an action of covenant, in which the plaintiff declared upon an agreement under seal dated the 28th of April 1800, whereby the defendant covenanted with the plaintiff, that “ in case he should recover any sum of money in an amicable action intended to be brought by him against James Oldden in the Supreme Court of Pennsylvania, in pursuance of an agreement between them dated the 15th of the then present month of April, he the said James Oldden his heirs, executors and…

This was an ejectment for a lot of ground in the city of Philadelphia adjoining the site of the Schuylkill Permanent Bridge.

<p>A sold goods to B, payable at sixty days with interest thereafter, to be paid when taken away, not to exceed ninety days. B did not take the goods away in the time prescribed. Afterwards A, who was a commission merchant, agreed to take the goods on sale for B, and to credit him with the proceeds, and B engaged to make up any loss which might accrue on the sales.</p> <p>Held that A was not bound to sell at all events, but only to use reasonable exertions, and after these had failed, and notice given to B to pay for the goods and take them away. A might maintain an action for the price; but the notice to B was indispensable.</p>

Meredith on behalf of the defendants, moved to dismiss certain exceptions to a report of referees in this cause, upon the ground that they had not been filed in time. By the record it appeared that the cause was referred under a rule of court on the 80th of October 1810, the report to be made into office, and judgment to be entered thereon.

This was an action of assumpsit to recover the freight of 1606 barrels of flour, and 3958 bushels of wheat in bags and in bulk, shipped by the defendants on board the ship Apollo belonging to the plaintiffs.

<p>A certificate by the secretary of the land office, authenticating the copy of an entry by the recorder of Philadelphia county; in a book containing records of patents, and therefore belonging to the rolls’ office, and by the act of 29th March 1809, transfered to the land office, is not evidence.</p> <p>The general rule is, that a deed containing a recital of another deed, is not evidence of the recited deed, except against the person who makes such recital, and those who claim under him by title acquired afterwards ; but in the case of an ancient deed, of the loss of which some evidence has been given, where the possession'has not been contrary to the deed, and where the subscribing witnesses have been long dead, a recital in another deed, particularly if it is made by persons likely to know the fact, is evidence of the lost deed.</p> <p>So a deed containing such recital by the person to whom the lost deed is alleged to have been made, and who has been in possession a long time, may be admitted to show the nature of his possession, and that he exercised acts of ownership and held under the lost deed, and not merely as tenant by the curtesy, in which character also he was entitled to possession.</p> <p>Necessity either absolute or moral is a sufficient ground for dispensing with the usual rules of evidence.</p>

On the first day of this term, Biddle for the defendants obtained a rule upon the plaintiff to show cause why the proceedings in this suit, which was debt upon a bail bond, should not be discharged, and special bail entered in the original action. The original was brought to December term 1810; and the bail bond suit, to the present term.

<p>The court will not interpose summarily to stay an execution, unless the defendant’s case is made out entirely to their satisfaction; if it is doubtful, he must resort to his action.</p>

<p>In an action of covenant upon a special -warranty , the covenantee, in order to prove that he has been evicted by a person claiming by, from or under the covenantor, may show by parol evidence what was the testimony given upon the trial of the ejectment, which resulted in his eviction. He is not bound to call the witnesses, nor to produce the original documents.</p> <p>If the covenantor had notice of the ejectment, and agreed to defend, quaere whether the evidence that the plaintiff claimed under him, is not conclusive upon him. If he had not, it is prima facie only.</p>

This was an action upon the case against the defendant to recover damages for his breach of the plaintiffs’ orders. The cause -was referred under the act of 1705, and a report made in favor of the defendant; and it was upon exceptions to this report, that the matter now came before the Court.

This was an action of assumpsit against the defendant .as the indorser of a foreign bill of exchange.

This cause came before the Court at the last December term, under circumstances which are mentioned in the third volume of these Reports, page 888. By the judgment of the Court at that term, the report of the referees was recommitted to them, to ascertain the amount of Swift’s lien upon certain partnership property shipped by George Plumstead to St. Domingo, and there, after Plumstead’s death, attached by M’Call.

This was an action to recover the amount of three promissory notes, drawn by the defendant in favor of the plaintiffs, on the 18th February, 6th March and 5th April 1805. The pleas were non assumpsit and payment with leave, &c., and under the last plea the defendant gave notice of a special defence, that the debt had been released by Salmon one of the plaintiffs.

<p>When a point is reserved at the trial, the rule which requires ten days’ previous notice of a motion for a new trial, is dispensed with. But if the court merely tell the jury that they have not formed a positive opinion upon the point, though they recommend the jury to take the law as it had been urged by the one party, and if the verdict should be against the other, and he should think proper to move for a new trial, the matter may be deliberately considered in banc, in such a case notice of an intended motion is requisite.</p>

<p>To constitute robbery, there must be a felonious talcing of property from the person of another by force, either actual, or constructive; but if force be used, it is not essential that the prosecutor should be either aware or afraid of the taking. Hence, where the prisoner took the prosecutor by the cravat, with an intention to steal his watch, and also pressed his breast against the prosecutor’s and held him against a wall, during which time he took the prosecutor’s watch from his fob, without his knowledge, and without his suspecting any intention of felony, this was held to be robbery.</p>

<p>If" a vessel arrives at her port of destination where the policy ends, it is of no importance that she cannot be repaired there at all, if the injury previously sustained, does not amount to 50 per cent, of her value.</p> <p>A ship is insured from A to JB, where she arrives and delivers her cargo, having sustained a severe injury on the voyage by striking on a shoal. The damage is such, that for want of the requisite docks she is irreparable at B, and is wholly unseaworthy to go elsewhere. She is surveyed, an estimate of the requisite repairs made, and she is then condemned and sold. The captain purchases her at a perfectly fair sale, for less than the estimate of repairs, and for less than one-sixth of her value in the policy ; and he then sails in her at great risk to C, where he puts her in a dry dock, and has her repaired at less than 50 per cent, of her value. After the repairs made, but before the owner knew of them, or of her arriving at C, he abandoned.</p> <p>Held that the damage did not amount to 50 per cent of her value, and therefore the abandonment was not good; but as a partial loss the insurers ai’e bound to pay not only the cost of repairs, but the expenses of taking her to C to be repaired.</p>

This was an action of Replevin for 300 barrels of flour, to which Davidson pleaded the general issue, and both defendants pleaded property in John Pershouse. The plaintiff replied property in himself.

In Error. This was a writ of error to the Quarter Sessions of Chester county, to bring up the record of an indictment and conviction of the plaintiff in error. The indictment contained three counts.

<p>A writ of error to the Mayor’s Court, to remove the record of a prosecution for felony, or for a misdemeanor which subjects the offender to an infamous punishment, is not grantable of course, but must have the consent of the attorney general or a judge of the Supreme Court.</p>

This was an amicable action to March term 1811, in which the defendant on the 27th of March in the same year entered a rule of arbitration. The arbitrators on the 24th of April following, reported that the plaintiffs had no cause of action, and within the time prescribed the plaintiffs appealed. On the 17th of September they filed their declaration, and on the 20th of December, signed judgment for want an affidavit °f defence.

This was an action upon a policy for 5000 dollars on thirty casks of coffee valued at 5250 dollars in the brig Rising Sun, at and from Philadelphia to Tonnington, or Bremen if not blockaded; warranted American property to be proved in Philadelphia only, and not to abandon in case of capture until after sixty days’ detention, unless previously condemned.

These were cases of insurance, in both of which the material facts as well as the principles of law involved were nearly the same, and therefore they are reported together. The first was upon a policy dated the 12th of December, 1806, for 5000 dollars, upon teas valued at the same sum, by the ship Bordeaux Packet, at and from Philadelphia to Antwerp, warranted American property.

This was an action of assumpsit for goods sold and delivered, &c., tried before Brackenridge J. at a Nisi Prius in March last, when the jury found a verdict for the plaintiff with 478 dollars 19 cents damages.

This was a habeas corpus to the keeper of the debtor’s apartment, to bring up the body of Henry Thatcher. By the return it appeared that Thatcher was in custody at the suit of William J. Rayfield in the District Court of the city and county of Philadelphia, having been surrendered by his bail.

Among other exceptions to a report of referees awarding 12,670 dollars 39 cents to the plaintiff in this cause, was one which stated that the referees had committed a manifest error, in allowing damages to a large amount against the defendants on account of their non-payment of certain bills of exchange, drawn on them by the plaintiff, although there was no evidence either that the defendants were in funds for the payment of the said bills, or that the plaintiff had paid…

In this case, the matters in dispute between the parties were on the 23d of March 1805 referred under a rule of Court, report to be made to the next Court; and on the 20 th of June 1812, a report was filed in the prothonotary’s office, awarding to the defendant 5842 dollars 80 cents. Exceptions were filed on the 3d of July, and on the 6th instant the report was read at the present adjourned Court, and set down upon the argument list.

<p>Under the act of congress authorizing the President of the United States to cause to be engaged certain able seamen, ordinary seamen, and boys, to serve in the navy, an infant who has arrived at years of discretion, and has neither father, master, nor guardian, may make a valid contract to serve according to the act, notwithstanding he has a mother with whom he resides at the time, and whose consent was not given to the contract.</p> <p>An infant owes reverence and respect to his mother, but she has no legal authority over him, nor any legal right to his services.</p> <p>Under the constitutional power of congress to provide and maintain a navy, that body may by law authorize minors to enter into contracts for service in the navy, notwithstanding such contracts if made by an infant might not be binding upon him at common law.</p>

<p>In Ereor.</p> <p>Upon a writ of error to the Common Pleas of Philadelphia county, it appeared that Briggs, the plaintiff below, brought the present action to June term 1808, and declared in trover for a mainsail, and other sails of the schooner Indiana; laying the conversion by Dolan on the 1st of April 1808. Plea the general issue.</p> <p>The defendant gave in evidence a decree of the District Court of the United States for the district of Pennsylvania, condemning the said schooner for the payment of mariners’ wages, and ordering the sale of her, “ together with all and singular her tackle, apparel and furniture, or so much thereof' as might be necessary.” He also gave in evidence the precept to the marshal, commanding him to sell her at public auction to the highest bidder, together with her tackle, apparel and furniture, or so much thereof as might be necessary, the same being then in his custody and posses- r* <q7 sion under a writ of attachment lately issued; to *- which the marshal made return, that he had sold the Indiana, her tackle, apparel, &c., to John Dolan, for 800 dollars, which sum was absorbed by payment of the wages of the seamen, and costs and charges of the suit, and that he had no money in his hands to pay into court subject to further order. Under this decree, sale, and return, the defendant claimed to hold the sails.</p> <p>The plaintiff then produced the deputy marshal, who swore that he did not see the sails of the schooner, when he took the inventory as deputy marshal. That a day or two before the sale, he wished to find out the sails to see their condition. That he went to Dolan’s, who told him that he had bought the sails of the captain, and that they were not to be sold. That he could not obtain permission of Dolan to see the sails, although he asked it. The plaintiff then offered further to prove by this witness, that the sails for which this action was brought, were not sold by the marshal to Dolan with the schooner, but were expressly excepted at the time of the sale. The evidence was objected to, but the court overruled the objection, and sealed a bill of exceptions.</p> <p>In addition to this error in admitting testimony, the plaintiff in error took objection in this Court to the time of laying the conversion, which he said was before the commencement of the suit; and as evidence of this commencement, he referred to an endorsement on the original writ in the following terms. “March 17th 1808, C. C. and B. B. W. Pidgeon, deputy sheriff. ¥m. T. Donaldson.”</p>

Case for the opinion of the Court. “The plaintiffs insured with the defendant 12,000 dollars on goods on board the ship Herkimer, at and from London to New York, in an open policy. They had laden on board the said ship two hundred and three cases, seven trunks, and two bales of merchandise, the invoice value whereof was 23,882i. 12s. id. sterling, being at par of exchange equal to 103,819 dollars 63 cents.

<p>To constitute general average, it is necessary that the ship should be in distress, that a part should be voluntarily sacrificed to save the rest, and that the sacrifice should be conducive to the saving; but it seems that previous consultation between the officers and crew is not necessary; nor is it necessary that the part sacrificed, should be exposed to greater danger by encountering the loss, than it would otherwise have been. As if, from the violence of the winds, a ship must go ashore somewhere, and she chooses a place, where she will be at least as safe as she could be any where else, still if she selects her place', and incurs a certain loss thereby for the common benefit, it is general average.</p>

<p>A and B American citizens, having learned from the captain of their ship, then in England, that he intended to bring home a cargo of salt, &c., for their account, effected insurance on goods, warranting them American property: C and D British merchants and the consignees of the ship abroad, loaded the ship with salt, &c., which they paid for with their own funds, and took a bill of lading from the captain, making the same deliverable to their agent in the United States. They at the same time insured the cargo in their own names in England, and instructed their agent to deliver it to A and B upon their paying him a sum exceeding the cost of the cargo; otherwise to dispose of it for account of C and D. The ship foundered upon her voyage to America.</p> <p>Held 1. That A and B had no insurable interest in the cargo; that they could insure under the description of cargo, or goods; and quiere, if they had any at all. 2. That if they had, the warranty of American property was falsified by the British interest in C and D. 3. That this was not the case of a double insurance, because the insurances were not on the same risk and for the same person.</p>

In Error. Upon a writ of error to the Quarter Sessions of Philadelphia county, to remove an indictment and conviction of fornication and bastardy, the error assigned was in that part of the judgment, by which the defendant was ordered to pay a'weekly sum for the maintenance of his child, a daughter, till she attained the age of seven years.