Volume 4 — Sergeant & Rawle's Pennsylvania Reports

THIS cause was tried at Nisi Prius on the 31st January last, before the Chief Justice, when a verdict was found for the plaintiffs for 1839 dollars 57 cents. On a motion by the' defendant for a new trial, which was , , , . , , . now argued, the only question was, as to the true meaning or a sale for approved indorsed paper, which J. R. Ingersoll, for the defendant, contended, meant notes to be approved by the seller.

A HABEAS CORPUS issued in this case to Cornman, who was keeper of the debtors’ apartment, to produce the body of Richard Graff.

In Error. THIS case came before the Court on a bill of exceptions to evidence, sealed by the District Court for the city and county of Philadelphia. . It was an action to recover the value of a quantity of lime sold and delivered by Crawford, the plaintiff below, to Curren. On the trial the plaintiff produced books, which he swore were his books of original entries of goods sold and delivered, and that the entries were made at the times, and by himself.

<p>poration aggregate for a tort. An action of trespass on the case, lies against a cor-</p> <p>that ¡fthenarr. actoompíained of, was nnmonjfuiiy settmg'f(M’th.U<: negatively, within the scope of the corporate powers of the sufficient! 'lAt goocTafter ^ *S verdict.</p>

<p>in an action Hoiíabuse of legal process, ciTration^give parol evidence of an agreement not to issue execution on a judgment on a bond with warrant of attorney* without notice; but whether such an agreement is a good cause of action, is another matter, of which the defendant may avail himself by demurrer, or by motion in arrest of judgment.</p> <p>The Court possess the power of setting aside verdicts where disproportionate and enormous damages have been given; but it must be a rank case to induce them to exercise that power. Therefore, in an action for the malicious abuse of process, the Court refused to award a new trial, where all the facts and circumstances of the case were fairly submitted to the jury, although they considered the damages unnecessarily high.</p>

“ any illicit or prohibited trade.’ THIS suit was brought on a policy of insurance effected with the defendants on . the 30th June, 1807, by Messrs, Gurney fi? Held: that the underwriters were bound to know, that the trade was illicit, and if a seizure took place they were bound to pay the loss. i Marsh. 60, 61. 474. 1 Emerig. 212.

In Error. WRIT of error to the Court of Common Pleas of Phir » j », T * . hdelphza county. ■ The plaintiffs brought an action of trover against the defendants for three and a half tons of hay, valued at seventy-five dollars, before Alderman Pettit, who rendered judgment f°r the defendant. The plaintiff appealed.

RULE to shew cause why the judgment entered on an awar(j 0f arbitrators should not be opened, and the rule of . r ’ arbitration stricken off. The action was account render, in which the defendant, a . , . resident in New Jersey, was held to bail in 3,000 dollars.

<p>ACTION on a policy of insurance on goods by the schooner Hound, at and from Aux Cayes to Philadelphia, un¿erwritten by the defendant for 800 dollars. The declaraJ tion contained a count for a total loss, and another for money had and received, &c. The jury were of opinion, that the policy was void, and found a verdict for the defendant on the first count. But the plaintiffs being entitled to a return of the premium in consequence of the policy being void, they found for the plaintiffs 67 dollars on the count for money had and received.</p> <p>obtained a rule to shew cause why judgment should not be entered without costs, the plaintiffs having recovered less than 50 pounds.</p> <p>The several acts of assembly upon which the question depended, are noticed in the opinion of the Court, which was delivered by</p>

TILGHMAN and Binney moved the Court for an order that the sheriff of Philadelphia county should perfect the title to certain lands, the property of Daniel Williams, deceased, , , 7 , , , , 7 , . 7 under a sale, made by the late sheriff, to one Clark, by virtue a venditioni exponas issued in this suit.

A HABEAS CORPUS, returnable before tbe Chief, , , , . Justice, sitting ati\7m Przus, on the 18th February, 1818, issued to the keeper of the debtors’ apartment, for the city and county of Philadelphia, to produce the body of Oliver Caulk, together with the cause of his detention. He returned, that Caulk was detained, by virtue of a precept from the gade inspector, of the first brigade of the first division of the militia of Pennsylvania, which was annexed to the return.

THE proceedings in this case, having been removed by certiorari, from the Quarter Sessions of Philadelphia county, to Court, it appeared, that at September Session, 1815, a petition under the general road law of 1802, was presented to the Court of Quarter Sessions, for the continuation of Spafford street ^n. Moyamensing township, from where it then terminated, to Fitzwater street.

<p>A HABEAS CORPUS, having issued to Letitia King, lo bring before the Court, the body of Jacob Rieval, she returned, that she held him by the authority and direction of the executors of her deceased husband, to whom and to whose heirs and assigns, the said Jacob was bound as an apprentice, to learn the art and mystery of a shoemaker. . By the mdenture, which was dated, August 22d, 1815, Jacob'Rieval, was bound to serve John King, his heirs, and assigns, for five years. The question was, whether an assignment of the denture by the executors, was good.</p> <p>The opinion of the Court, delivered by Gibson J., takes so comprehensive a view of the subject, as to supercede necessity of giving a statement of the arguments of counsel,</p>

THIS case came before the Court on an appeal from the decision of the Orphans’ Court of the county of Philadelphia. x .. Benjamin Say, deceased, whose executors were the appellants> and the Rev. Dr. Rogers, were guardians of Barnaby Barnes, the appellee, and of his sister Anna Maria. Dr. ' * * 7 . Rogers attended to the education of the orphans, but the management of their estate, which was very considerable, Was confided to Mr. Say solely.

<p>Where goods had been assigned ^enTdebtor under the act ísos^m're-’ mained. in his. with the perm°'<; chan 5eW,ltiíát ‘h?y T** not fiable to an execution, for a e| /jra’orto'tho creditor, who totter£onta censai ex-debtor from property from exeoutions, during the term of charge,</p> <p>length of pos. would be fraudulent, with respect to a debt contracted after the discharge.</p>

AN alternative mandamus had issued to the defendants on a former day at the suggestion of William Thackara, com-«landing them to draw an order in his favour on the county ,. i r i - t -t i i r treasurer for interest on a certain draft, which they had tormerly drawn, and which had been accepted by the treasurer, or to shew cause to the contrary.

THE defendant had been indicted in the Mayor’s Court of the city of Philadelphia, under the fifth section of the of 31st March, 1806, entitled, “an act to restrain the horrid practice of duelling.” The indictment was removed to this Court, and tried on the 16th January, 1818, before Gibson J. when the jury retúrned a verdict of not guilty, but directed the costs to be paid by the defendant. ' On the last day of the Term succeeding the trial, Term,) P. A. Browne, for the…

ON the trial of this cause, which was an ejectment in die form prescribed by the acts of assembly of 21st March, 1806, and 13th April, 1807, before Gibson J. at Nisi Prius, it appeared in evidence, that during the pendency of the suit, tiie plaintiff had conveyed the title to another person, whereupon the defendant moved for a nonsuit, which his Honour directed to be entered, with leave to the plaintiff to move to take it off, if the Court in Bank should be of opinion, that…

A RULE was obtained ©n a former day, by the fendant, to shew cause why the appeal from an award of arbitrators in his favour, should not be dismissed, and at the same time, the plaintiff obtained a rule, to shew cause why , , , , ^ -J the award should not be set aside. insisted, that the plaintiff had not entered his appeal, conformably to the act of assembly, the 11th section of which, required °f the appellant, an oath or affirmation, that the appeal was not 11 entered for…

THE following indictment was removed into this Court by certiorari from the Mayor’s Court of the city of Philadelphia. ' “ City of Philadelphia, ss.

<p>IN this case the following was delivered as the opinion of the Court, by ■ J</p>

<p>An action upon prohibited by not be mafa°" alnaity be*™- and ¡í he Iint cfared^that6" ¡j.1 v<ddntraet</p> <p>A lottery for the disposal of land, is within the prohibition of ppebaot ofl7tk i762,Uand’no sustataedfbr8 the price of a</p>

In Error. IN delivering the opinion of the Court, in this case, which was an action of trespass, quare clausum fregerunt„ brought by Kohr, in the Common Pleas of Lebanon county, Chief Justice has fully stated all the points in controVersy*

<p>In Error.</p> <p>THIS action was brought on a single bill assigned by the obligee to the plaintiff, according to the act of assembly passed on the 28th May. 1715. • The defendant, the obligor, * , , ... . , r , r 7 made a payment to the obligee two days alter the assignment, but before he had received notice of it. The 7 below charger! the jury, that the payment was good against the assignee, provided, when the obligor made it he had no notice of the assignment. Whether or not this opinion was erroneous, was the question now presented for the decision of this Court.</p> <p>agreed, that in the case of an equitable assignment, notice was necessary, because where a man asks the aid of equity, he must do equity; but this, he said, was a legal assignment under the act of assembly. Both parties were negligent, the assignee in not giving notice of the assignment, and the obligor in not demanding the bond before he made the payment; the equity of both was equal, and therefore the assignee having the legal property must prevail.. The act of assembly declares, that the assignee may recover, in his own name, the amount due at the time of the assignment, and the cases cited from Dallas, which are sup-</p> <p>posed to prove, that a payment to the obligee after the assignment, but without notice of it, is good against him, certainly do not establish that position. In Wheeler v. Hughes,(a) there is a dictum of Chief Justice Chew, and nothing more, that the obligor may set off all payments made before notice of the assignment; but the case itself is not applicable. The case of Cummings v. Lynn,(b) was a question, whether the assignment was under the act of assembly. In Inglis v. Ing* lis,(c) the contest was between two equitable assignees of a legacy, and there is nothing to support the doctrine contended for by the defendant in error, but a dictum of Chief Justice Shippen, that payment before notice is good. An averment of notice in the declaration is no further necessary than to shew, that the obligor knew to whom to pay the money. In an action on a promissory note, no such averment is necessary. 1 Chitty, 320.</p> <p>This is far from being a new question ; but as some doubt appears to be entertained in relation to it, it is time it should be completely settled. In the case of bills of exchange, the indorsement passes the property divested of all equity on the part of the drawer; therefore if the drawer pays the bill without having it delivered up, it is at his own peril. But the assignee of a bond takes it subject to all the equity existing between the obligor and obligee, and therefore it is his duty to give notice to the obligor of the assignment.</p> <p>The act of assembly had no other object in view than to give an action to the assignee in his own name ; it did not intend to give to assigned bonds the same character as bills of exchange, or to lessen in any respect the equitable rights of the obligor. These rights have been repeatedly recognised by judicial decisions. In Wheeler v. Hughes, Chief Justice Chew lays it down, that the obligor is let in for every equity which he had at the time of the assignment, or notice of it. In Inglis v. Inglis, Shippen C. J. seems to treat it as a matter not to be disputed, that notice of the assignment of a bond ought to be given to the obligor. In Wardell v. Eden,(d) it was held, that until the defendant has notice of the assignment of a judgment, all payments by him are good. And in .South Carolina, the assignee of a bond holds it under all the equitable circumstances to which it was subject between the original parties, and must give notice of the assignment. Da Costa v. Shrewsbury .(a) Newman v. Crocker.(b)</p> <p>The form of declaring too on an assigned bond shews the necessity of notice ; otherwise an averment to that effect need not' be introduced into the narr.</p>

<p>No appeal jadgmentofa justice of the matter ex-hundreddollars, referred to him by consent, under tion'ofthe act of^OthMarch will any act appeiieef16 tending to quiescence in render it*'’ good.</p>

<p>ON an appeal from the Orphans’ Court of Lebanon county, the case appeared to be this</p> <p>George Spangler and Barbara his wife, petitioned the Orphans’ Court for a partition of the lands of Michael Rambler¡, deceased, who was supposed to have died intestate, leaving a widow, Eve Rambler, the appellee, but no children. On this petition, the Court awarded an inquest to make parti- . Partition was made, and the inquest returned; upon the widow exhibited a writing purporting to be the last will and testament of the said Michael Rambler, and prayed that the proceedings might be set aside. On the other hand, the petitioners urged the confirmation of the par- . . ’ \ . , 9 , . .... tition, and gave m evidence the record or an action of ejectment) in which the heirs of the said Michael Rambler had recovered an undivided moiety of his real estate against his w'idow, the said Eve Rambler, who was in possession of the whole, and claimed it by virtue of a devise in his will. 7 J evidence was also given, that on the trial of the ejectment, the validity of the pretended will of Michael Rambler was brought into question, and inasmuch as the title of the , * . . , , plaintiffs was inconsistent with the will, the petitioners msisted, that the jury had by their verdict decided, that Michael Rambler died intestate. In consequence of the exhibition of the paper purporting to be the will of Michael Rambler, the Orphans’ Court refused to confirm the partir tion, and set aside the proceedings ; upon which the petitioners appealed to this Court,</p> <p>contended, that the validity of the will of Michael Rambler having been fairly and fully in' issue,.in the ejectment brought by his heirs, the judgment in that suit while in force avoided the will; and of course the land should have been divided as the estate of an intestate. And to shew the conclusiveness of judgments of courts of competent jurisdiction on a point in issue before them, he cited 3 Bl. Com. 24. Bond v. Gardner.(a) Simpson v. Marth(a) Gelston v. Hoyt.(b) Moses v. MlFerlan.(c) Thill. Í&.-834. * '</p> <p>did not'deny the general position which the authorities cited on the other side went to establish, but insisted, that the rule did not govern this case, because in an ejectment one verdict was not conclusive of the title, and besides if Michael Rambler had died intestate, the plaintiffs would, as his heirs, have been entitled to recover the whole instead of a moiety, for which alone a verdict was found in their favour. The jury, they said, founded their verdict upon the idea, that the widow was entitled to one-half the land in fee simple ; but if this inquisition stand, she will lose the fee simple of the whole. The verdict, therefore, does not support the inquisition. .The proper way to try the validity of a Will'is by an-issue of devisavit vel non directed by the Register’s Court, dnd until that be determined the. Orphans’ Court cannot proceed as if there were an intestacy. They cited 7 Bac. Ab. 381. Brommell v..Kerridge.(d) Act ©f 19th April, 1794.(e)</p>

In Error. ON a writ of error to the Court of Oyer and Terminer ... ot the county of Tork, it appeared, that an indictment was f°und by the grand jury, that George Stewart, &c. the house of one Abraham Miller, &c. “feloniously burglariously did break and enter, and sundry promissory notes for the payment of money of the value of eighty dollars, of the goods and chattels of the said Abraham Miller, in the said dwelling house, then and there being found, then and there…

In Error. WRIT of error to the Court of Common Pleas of Lancaster county. brought an action against Abraham Landis, the defendant, for erecting a dam on his own land, in consequence of which the waters of Cocalico creek were interrupted in their course, and thrown back on the land of the plaintiff. The action was referred to arbitrators, who awarded damages to the plaintiff in the sum of 400 dollars.

ON the return of a certiorari to the Quarter Sessions of Dauphin county, in the case of a road leading from the upper end of Third street in M1-Claysburg, to intersect the rjVer road near Christian Kunkle's farm house, it appeared # 7 rr among other exceptions to the proceedings in the Court of Quarter Sessions, that Nicholas Swoyer, an original petitioner, had been appointed a reviewer, which Elder insisted was fatal to the proceedings, and cited the case of the Radnor and…

THIS was an appeal from a decree of the Register’s Court of the county of Lebanon, revoking letters of administration granted to Adam Stoever, jun. on the estate of Stroh deceased, and directing letters of administration to be granted to Christian Ludwig and Elizabeth his wife; to which Wright, for the appellant, excepted, 1. Because the Register’s Court had no jurisdiction of the matter. 2.

<p>In Error.</p> <p>THIS case came before the Court on three bills of exceptions, which were returned with the record, on a writ r - A error to Lancaster county.</p> <p>In the Court below, it was an action of ejectment brought by the plaintiffs in error against the defendant, in which the title of both parties depended on the validity of a writing, purporting to be the testament and last will of George Wike, deceased, the father of the defendant. The plaintiffs claimed in opposition to the will; the defendant under it. There had been a former trial on an issue of devisavit vel non, directed by the Register’s Court, in which a certain Anthony Ellmaker, deceased, had been examined as a witness. ’ Charles ESq. 0ne of the plaintiffs’ counsel in this cause, had been counsel for the same parties, (who were defendants in the feigned issue,) and took notes of the testimony given by Ell-maker. He was sworn as a witness for the defendant on the trial in the Court below, and produced at the request of the defendant, his notes of Ellmaker's testimony. He swore, «that it was his usual practice, to take the substance and usually the words of a witness ; that he believed he took down what Ellmaker said, as it fell from him ; that he had no reason to doubt his having taken down his testimony as he delivered it; the substance of it; and that there had been no alteration of his notes since they were taken, but that he could not recollect a word the witness said, but from his notes; that he had no other recollection that he was even examined as a witness, than from what appeared on his notes.” After this evidence had been given, the defendant’s counsel offered Mr. Smith’s notes in evidence. The Court admitted them, and the plaintiffs’ counsel excepted to their opinion.</p> <p>The plaintiffs in the course of the trial offered to prove declarations of a certain Jacob Wike, who was named an executor and devisee iri the instrument, alleged to be the will of George Wike, but who was not a party to this suit, on the day-after the decease of George Wike, that there was no will. This testimony was over-ruled by the Court, and formed the subject of the second bill of exceptions.</p> <p>The contents of the third bill of exceptions are stated by the Chief Justice so fully, as to render it superfluous to do more than refer to that part of his opinion which relates to it.</p> <p>The case was argued by Buchanan and C. Smith, for the plaintiffs in error, who cited, Phill. Ev. -199. Miles v. 0’-Hara.(a) Peake’s Ev. 190. Lessee of Clymer v. Littler(b) and by</p> <p>who referred te Phi 11. Ev. 71.211. Longenecker v. Hyde.(a) Bull. M. P. 296. Stout v. Rassell.(b)</p>

<p>The Court toln^tractThe jury to find for evidence. It is merely their duty to inform Jíiw leaving: the decision of tcf them</p> <p>The general [h/labour of ® the ase of the the\btherper,mit hia aon *° improve anu settle on a tract of land for his own use and benefit, his title is the same as if he had been of age when he commenced his improvement.</p> <p>Where a Judge has expi-essed himself in such a manner as to be understood by the jury, this Court will not reverse the judgment on critical objections to his language.</p> <p>Tl e record of proceedings before two justices and twelve freeholders under the landlord and tenant law, is not conclusive evidence of the facts found by their inquisition; but the truth of them may be traversed in an ejectment brought by the tenant to try the title.</p>

In Error. WRIT of error to the Court of Common Pleas Dauphin county. of Xn the Court below it was an action of debt brought to May Term, 180/, by Agnes Furer, executrix and residuary legatee of Agnes Brown9 to recover a legacy of one hundred pounds bequeathed by one Daniel Brown, to her and charged upon a tract of land, of - which one of the defendants was devisee and the rest terre-tenants.

A HABEAS CORPUS having issued to the defendant, who was jailor of Lancaster, to bring up the body of negro Tom, he returned, that he held him as the agent of Isaac Law his master, by virtue of an indenture made the 27th August, 1805.

In’ErROR. ON the trial of this cause, which was an action on a ofpromissory note, brought by Samuel Bailie, indorsee of ThoBuchannan, against Benjamin Long, the drawer, in the Common Pleas of Lancaster county; the indorser, Buchannan, was called as a witness by the defendant, and ob~ jecte The Court refused to permit the witness to be sworn in chief, and the defendant excepted to their decision.

In Error. THESE causes were tried in the Court of Common Pleas of Lancaster county, on issues directed by the board property, by virtue of an act of assembly, passed the 20th March, 1810. It appeared, that there was a controversy fore the board of property respecting the right to receive the valuation money of certain lands within the seventeen ships of Lwzerne county, which had been released to the Commonwealth by James Moore, deceased.

In Error. IN this suit the plaintiff filed a statement agreeably to the 5th section of the act of 21st March, 1806,(a) in the mon Pleas of Dauphin county. The next Term of the Court commenced on the 29th August, 1814, and continued two weeks. On the 30th August, the plaintiff entered judgment by default; which the Court refused to open, on the application of the defendant’s counsel.

<p>In Error.</p> <p>JANE HAMILTON the defendant m error, brought an action ot assumpsit m the Common Pleas of Lancaster county against John Wilson, executor of John Wilson de-> ceased, to recover her share of the residue of the testator’s estate undisposed of by his will. The defendant pleaded non assumpsit and payment, on which issue was joined, and the cause came on to be tried at August Term, 1817. After die jury had been sworn and evidence given, the defendant movet^ f°r leave to plead, that since the bringing of the suit, the plaintiff had intermarried with one Joel Baker, who was still in full life. The Court, thinking themselves bound by the act of assembly of 21st March, 1806, admitted the plea, The plaintiff, however, did not reply, and the cause was tried on *ts merits; the Court instructing the jury to regard the P^ea coverture as a nullity, and not to suffer it to have any effect on their decision. The verdict was for the plaintiff, and the cause being removed to this Court by writ of error, the charge of the Court below on the point above stated, as , u r , well as on two others which were afterwards abandoned, was assigned for error. It was also contended, that there was error in there being no issue ioined on the plea'of coverture-</p> <p>cited, Act of 21st March. 1806, sect. 6.(a) Bull. N. P. 309, 310, Broome v. Bear desley.(a) Bancker v. Ash.(b) Morgan v. Dyer.(c) Morgan v. Dyer, (d) Van Benthuysen v. Z><? Witt.(e) Brown v. Barnett.(f) 3 Bl. Com. 316,</p> <p>cited, 1 Chitty on PI. 437.470. 636. Barber v. Palmer .(g) Vaughan v. Browne.(h) 1 Com. Dig. 80. Abatement, H. 42. 2 Tid. 1021. Palmer v. Greew’(i)</p>

<p>In Error.</p> <p>UPON a writ of error to the Court of Common Pleas of Lancaster county it appeared, that this was an action of trespass vi et armis, brought by the plaintiff in error against , -, , ’ F , , - j ■ • the defendants, for cutting and destroying a conduit used by him for supplying his tanyard with water, and preventing the water from flowing into the tanyard, through f, ° r , c F3 . F 0 the said pipe, for the space of three weeks ; in consequence of which the tanyard was deprived of the use of the water J r which ought to have flowed through the said pipe.</p> <p>The pleas were not guilty and justification.</p> <p>The plaintiff gave in evidence a deed, dated October 12, 1793, from Joseph Le Fevre, one of the defendants, and wife, to Adam Le Fevre, for an acre and an half of land for a tan-yard, with the right of conveying the waters of a stream running through the adjoining lands of the grantor, into the premises which were granted, for the purpose of supplying a tanyard intended to be erected thereon, and of laying pipes through these lands for the conveyance of the water; describing the route of the water course, by courses and distances. • He then gave in evidence a deed dated June 23, 1796, from Adam Le Fevre and wife to Daniel Aspenshade, conveying the same premises, together with the water right. Articles of agreement, dated March 3,1810, between Aspen-shade and Daniel Le Fevre, the plaintiff, for the sale of the same land with the water right, and three or four adjoining acres, and a deed dated March 30, 1811, in pursuance of these articles, were there laid before the jury.</p> <p>The plaintiff then offered to prove by Daniel Aspenshade, that after the pipes had been in use some time, it became necessary to lay new ones, when Joseph Le Fevre proposed to Aspenshade to change the route of the water course, as a matter of convenience to both parties, from the dry ground marked out by the deed, to the low wet ground near the stream, and to carry them higher up the stream than the spot designated by the deed, which would make the new pipes more ” durable' and save the necessity of a dam; that to this proposa^ Aspenshade acceded, and Jos. Le Fevre accordingly staked off the new route, upon which Aspenshade laid the pipes and covered them, carrying them up the stream to the spot agreed upon ; that these conduit pipes continued to be used without molestation by Aspenshade, for six or seven years, proving to be a great advantage to both parties, and were in use at the time he sold to the plaintiff; tha t AspeJtshadc was the sole owner of the tanyard and water right, agreeably to the deed from Adam Le Fevre to him, and that Joseph Le Fevre was the Owner of all the lands through which both routes of the pipes passed, at the time it was agreed to change their course.</p> <p>To this evidence the defendant’s counsel objected, and the Court sustained the objection. The plaintiff’s counsel tendered a bill of exceptions.</p> <p>The alteration of the route offered to be proved, was proposed and marked out by Joseph Le' Fevre himself, for the advantage of both parties, and it saved' him from the erection of a dam on his land. The plaintiff purchased on a view of the water as it ran on the new route, without notice from Joseph Le Fevre, and if the original contract is to be adhered to, it is a gross fraud upon him. To the objection, that an incorporeal right cannot be granted by parol, it may be answered, that the water right was created by deed, and the parol agreement only went to alter the course of it. It did not contradict the deed, and the evidence was therefore admissible. Sugden, 97, and the cases there collected. Besides, it was a right to the water which was claimed, which is corporeal,'and therefore, it was not an incorporeal hereditament.</p> <p>SinCe the statute of frauds, lands can no more pass without deed, than incorporeal rights, yet an agreement in relation to them, in part performed, is binding. The reason is, that after a parol agreement varying a written one, has been acted upon, it would be a fraud to enforce the original contract; and therefore after signing a written agreement, parol evidence may be received to shew, that the parties entered into a verbal agreement, varying the former one. Phill. Ev. 450. In the principal case, the parol agreement had been carried into effect at great expense to the plaintiff, at the suggestion of Joseph Le Feme, and had been acted upon for the mutual benefit of both parties for six or seven years, without interruption. Though, therefore, an incorporeal right will not pass without-deed, yet under such circumstances, chancery would compel a deed to be executed, according to the altered route, and if so, this Court will consider as done, what in equity ought to be done.</p> <p>insisted, that the permission given by Joseph Le Fevre, to Aspens hade, to carry the water along the new route, was merely during pleasure, and did not convey a right in fee to this privilege. The right of soil remained in Le Fevre, and the privilege of conveying water through it, was an incorporeal right, which could not be vested in another but by deed. 2 Bl. Com. 17.32. Co. Litt. 51, a. sect. 64, 65. It was, therefore, perfectly correct to reject testimony which went to contradict the deed, and set up a new verbal contract, inconsistent with it.</p>

In Error. ERROR to the Common Pleas of Lancaster county. It was an action of assumpsit brought to recover forty pounds, part of the price of a tract of land sold by the plaintiff to the defendant, on the 2d April, 1800. By the terms of the contract which was declared upon specially, the defendant was to pay one hundred pounds on the first of the following May, and fifty pounds in two years afterwards, or by two annual instalments at his option.

<p>In Error.</p> <p>ERROR to the Common Pleas of Lebanon county.</p> <p>The action was brought for the plaintiff's distributive share of the estate of the testator. The Court charged the t^le settlement of the estate in the Orphans’ Court was conclusive, and not open to investigation.</p>

<p>in an action compensation er,and for |“í^ere<? evu dence that the gÚTityofmaiher trust, and g00(]s 0ftj,e nofadm'lssibie hy way of set-£e received1^ under the plea 01 non as-sump sit, to tiou?1 ^ a°"</p>

<p>ERROR to the Common Pleas of Berks county.</p> <p>The plaintiff in error, who was also plaintiff below, sold a tract of land to the defendant at auction. The written conditions of the sale were, that the highest bidder should be the purchaser; that one thousand dollars should be paid in sixty days from the 14th September, 1814, which was the day of sale ; two thousand dollars on the first day of the foilowing April, and the remainder of the purchase money in two equal annual payments after the said first day of April, with interest from that day ; that the plaintiff’s share of the grain to be put out in the fall of 1814, being about eleven acres, should be included in the sale; that the plaintiff should make a good title to the purchaser on the 1st April, 1815, should deliver possession on that day, and if it should be required, execute a bond to the purchaser to indemnify him against any claims that might be made on the land. The land was struck off to the defendant at one hundred and thirty-one dollars per acre, and he signed and sealed a paper acknowledging, that he had become the purchaser, at the price and on the terms and conditions above-mentioned.</p> <p>The first payment of one thousand dollars not having been made at the time stipulated, this action was brought to recover it.</p> <p>The plea was payment, with leave to give the special matters in evidence.</p> <p>The cause was submitted to arbitrators, who,, on the 14th March, 1815, reported in favour of the plaintiff one thousand dollars with interest. The defendant appealed, and entered into a recognisance, conditioned, “ that if the plaintiff should in the event of the suit, obtain a judgment for a sum equal to or greater than the report of the arbitrators, the defendant should pay all the costs that should accrue in consequence of the appeal, together with the sum awarded by the arbitrators, with one dollar per day for each and every day that should be necessarily lost to the plaintiff in attending to the appeal.”</p> <p>The cause proceeded to trial, and'the jury found for the plaintiff one hundred and fifty dollars, with six cents damages and six cents costs, “ which sum of one hundred and fifty dollars was allowed by the jury,” the verdict stated, “ for the violation of the contract; and the plaintiff was to have and retain the right and title to the land with its appurtenances, and was also to have and recover the rents and profits of the same, as if no such sale had been made.”</p> <p>On this finding of the jury, judgment was rendered, to reverse which the present writ of error was brought.</p> <p>The errors assigned were, First, That the recognisance was not in the form prescribed by the act of assembly.</p> <p>Secondly, That the jury had not passed on the issue joined, and that the finding was so uncertain and repugnant, that no judgment could be entered on it.</p> <p>contended, that the 14th section of the act of 20th March, 1810,(a) having prescribed the form of the recognisance into which the defendant must enter, on appealing from an award of arbitrators, the omission of the words, u or judgment as or more favourable than the report of the arbitrators,” and of the words, “ or value of the property or thing,” and the introduction of the word, “ necessarily,” before the words, “ lost by the plaintiff in attending to such appeal,” were fatal to this recognisance, and made the subsequent proceedings in the Court below coram nonjudice.</p> <p>On the second point he insisted, that the verdict was void, because the plea of payment had admitted the contract; and the verdict avoided it and substituted a new one in place of it, Which could not be done. Tonkin v. Croker.(b) Wilcox v. Skip-wit h.(c)</p> <p>answered, that the recognisance pursued the act of assembly in every thing material, and that was enough.</p> <p>As to the verdict, they said it was substantially good. The action was debt for one thousand dollars, and the verdict was for one hundred and fifty dollars. The old law, that in debt the verdict must be for exactly the sum demanded, has long been exploded. The verdict for one hundred and fifty dollars debt, with six cents damages and six cents eosts, would have been strictly good, if it had stopt there. All that is added is immaterial and nugatory, and should be rejected as surplusage. Pepy’s case, (d) 7 Bac. Ab. 20. Verdict. But admitting the whole verdict to be material, it might be supported under the practice of Pennsylvania, in whose Courts common law and chancery powers are blended. Chancery cancels contracts founded in fraud, and enforces fair contracts; sometimes it takes a middle course, and does equity on the whole matter. In Pennsylvania, judgments are often rendered upon condition in order to do equity. In actions by vendee against vendor it is usual to give such damages as will insure a compliance with the contract, which are released on the vendor’s giving a conveyance. So if the vendor brings an ejectment, part of the purchase money being paid, the Court will take care, that if the residue be paid, the land shall be given up to the vendee. In' this case the jury thought the contract ought not to be carried into effect; and yet that the defendant had so conducted himself, that he ought to pay damages. They, therefore, did equity between the parties, on a view of the whole case.</p> <p>was about to reply, but was stopt by the Court, the opinion of which was delivered by</p>

In Error. WRIT of error to the Court of Common Pleas of Co- . 7 ■ lumbia county. This suit was originally brought before a justice of the peace of Northumberland county. From the entries in his docket it appeared, that on the 9th February, 1801, a summons issued against the defendant, the plaintiff in error, f°r a debt under five pounds, and that on the return of the process the parties appeared, when the justice gave judgment for the plaintiff for 1/. 4s. 4>d..

In ERROR. THIS was an ejectment in the Common Pleas of Colum-. bia county.

In Error. THE plaintiff brought an action against the Common- ^ Court Common Pleas of Luzerne county, for compensation under the act for offering compensation to the Pennsylvania claimants of lands within the seventeen townships of Luzerne county, passed the 4th April, 1799, r -r , and its supplements, tor certain lands certified to Connecticut claimants under the provisions of that act.

<p>ON a habeas corpus directing them to produce the body of Jeremiah Fullerson, the defendants returned, that they detained him by virtue of an execution in a civil suit issued by Andrew Albright, styling himself a justice of the peace of the county of Northumberland. It appeared, that Mr. Albright had received a commission dated 22d June, 1809, as a justice of the peace in district No. 1. called the district of Augusta; that the township of Augusta was divided in November, 1803, when the borough of Sunbury, which before had formed a part of the township, was erected into a separate township, and that Mr. Albright had never resided in Augusta township, but had constantly resided va.Sunbury. It also appeared, that on the 7th September, 1813, Mr. Albright had accepted a commission as associate judge of the Court of Common Pleas of Northumberland county. On these grounds it was contended by Watts, on behalf of the prisoner, that the commitment was void; that Mr. Albright was not de jure a justice of the peace, and that all the proceedings were coram non judice.</p>

In Error. THE plaintiff in error brought an action against the defendant in the Common Pleas of Union county, on an award in writing, and the Court left it to the jury to determine what was the meaning of the arbitrators, which Marr tended was error.

In Error. ON the return of a writ of error to the Court of Common Pleas of Union county, it appeared, that this was an tion of ejectment brought to April Term, 1810, by Peter J , , . , . .

In ERROR. WRIT of error to the Court of Common Pleas of Luzerne C0Unty* Cyrus Avery, the plaintiff below,'claimed title to the for which this ejectment was brought under Zebulon Marcey, ■who, on an application for 300 acres, obtained a certificate for ’ r , • • , „ . „ 337 acres from the commissioners appointed to carry into effect the act of assembly, entitled, ‘‘ An act for offering compensation to the Pennsylvania claimants of certain lands within the seventeen townships…

<p>In Error.</p> <p>THIS action was brought by Daniel Levy, esq. late prothonotary of Northumberland county, against the sioners of that county, for fees on account of official services performed for the use of the county. It had been the practice before the passing of the fee bill of 28th March, 1814, for the officers to charge fees for certain services for which the existing fee bill had made no allowance. These were known by the name of compensatory fees. On the trial of this cause, the Court gave their opinion, that since the passing of that law no such compensatory fees could be allowed, even for services performed before the passing of the act, and to this opinion the counsel for the plaintiff excepted,</p>

<p>Great regard is to be paid to the return of a deputy surveyor, and even slight evidence of Unes, or corners marked, will justify a jury-in presuming, that the survey was made as returned; but the running of one line only isnofi sufficient to establish a return of survey.</p>

In Error. AN issue of devisavit vel non having been directed by the register’s court of Mifflin county to determine the validity of a paper, purporting to be the last will of James Burns, it was tried in the Common Pleas of that county, on the 19th M.ay, 1817, when, after much contradictory evidence had been given, which was left to the jury to decide, the Court laid down certain principles of law, one of which was considered by the counsel of the plaintiff in error, to be…

In Error. THIS was a writ of error to tbe Court of Common Pleas of Lycoming county, in an action of ejectment brought ky ^ lessee of Edmund Huff the defendant in error, against Peter Vincent, in February, 1799. A number of exceptions were taken, as well to the admission of testimony as to the charge of the Court; all of which are fully stated and ex- .. „ , plained in the opinion pt the Court.

<p>In Error.</p> <p>ERROR to the Court of Common Pleas of Northumterland county,</p> <p>The Trustees of Dickinson College, the plaintiffs in this claimed under an application entered in the land office the 3d April, 1769, and a survey executed the 9th July, 1772, and returned the 28th August, 1772. The land had not been patented. When the plaintiffs had finished their evidence, the defendant offered to prove a possession in himself and those under whom he claimed, adverse to the plaintiffs, from the year 1787 to the commencement of this suit. This evidence was objected to by the plaintiffs, and rejected by the Court. An exception to the opinion of the Court was taken by the defendant, and whether the evidence was legal was now the question.</p> <p>There is nothing in England which resembles our title by warrant and survey, by location and survey, or by settlement, without patent. Nothing, therefore, can be deduced from the law England, applicable to this case. Our act of assembly of 26th March, lf8.'j,(a) which was intended to apply to such estates as exist in Pennsylvania, declares, that no person shall maintain any writ of right, or any other real or possessory writ, or action for any manor, lands, &c..of the seisin or possession of him, her, or ■ themselves, his, her, or then-ancestors, or predecessors, nor declare or allege any other seisin or possession of him, her, or themselves, his, her, or their ancestors, or predecessors, than within twenty-one years next before such writ, action, or suit, so hereafter to be sued, commenced, or brought. When this law was passed, the nature of these equitable estates was perfectly understood by the legislature. Whatever might have been the law prior to that period, it was then universally known, that an estate held by warrant and survey, had (saving the paramount title of the Commonwealth,) all the features of a legal estate; that it would descend; that it was subject to dower and curtesy, and might be recovered in ejectment. It would be absurd then to suppose, that the legislature intended to confine the operation of the act of limitations to the estates of those who had paid their purchase money and obtained a patent, and to protect the imperfect titles of those who had been in default. It Is not contended, that the act of limitations was intended to reach the Commonwealth ; but hér rights may be protected without excluding unpatented lands from the provisions of the act. The act of limitations operates as a transfer of the plaintiff’s title to the defendant, who has been in possession twenty-one years, and the Commonwealth has the same remedy for the recovery of the purchase money against the person in possession, as against him who was originally answerable for it, according to the price at which public lands were sold at the time he entered. No two things can be more unlike than the present case, and that of Morris v. Thomas.(b) There the question in substance was between the Commonwealth and a person who had made no settlement, nor had done any thing by which an inception of title was vested in him. The case goes no further than to decide, that under such circumstances, the Commonwealth may sell the land to another person, and that the purchaser shall not be affected by the unlawful possession which had taken place before he received the grant.</p> <p>Before the defendant below excepted to the Court’s opinion rejecting the evidence which he offered of possession, he ought to have stated the nature and extent of the possession he intended to prove, for nothing but an actual occupancy, a definite, positive, notorious possession, will prevent a recovery in ejectment. Jackson v. Schoonmaker.(a) The Commonwealth stands in the place of the proprietaries, she retains the legal title, subject to an obligation to convey to the defendants in error, on their payment of the purchase money and interest, according to the terms of the original agreement; and against the Commonwealth it has been decided in all the states, acts of limitations do not run. Tasker’s lessee v. Whittington.(b) If the defendants in error, who are the grantees of the Commonwealth, and for whom the Commonwealth is a trustee, are barred by the act of limitations, the Commonwealth is substantially barred also; because the contract between her and the defendants in error, will be destroyed, and she will lose the purchase money; or at least she cannot recover interest beyond the time when the plaintiff in error entered on the land ; but if the act of limitations be not a bar, the original contract is kept, and the defendants in error can only obtain a patent on the payment of the whole of the purchase money and interest. By settlement, the plaintiff in error could acquire no title, because the land had been surveyed for the defendants in error, before his entry; and a defendant is not allowed to give evidence of improvement and settlement after the return of the plaintiff’s survey. Pigou v. Nevill.(c) But the case of Morris v. Thomas,(d) in which it was decided, that the act of limitations is no bar to the Commonwealth or her grantee, seems to put the question to rest.</p>

In Error. THESE were actions of debt on bonds brought in the Court of Common Pleas of Columbia county, by the defendants- *n error against the plaintiff in error, in which the defendant below pleaded payment, with leave to give the special matter in evidence. The replication in each suit was non so¡vif an¿ issue.

In Error. THIS ejectment was brought in the Court of Common -^eas Northumberland county, by Benjamin Lodge and. others, the children and heirs of Jonathan Lodge, deceased, against William Pipher, the tenant of----Lloyd and ^ara^ wifo» formerly the widow of Josiah Haines, deceased, who was one of the children of Reuben Haines, deceasech to recover 150 acres of land near Northumberland town, on the north branch of the Susquehanna.

In Error. THIS case came before the Court on several bills of exceptions to the admission of evidence by the Court of Common Pleas of Mifflin county, where it was an ejectment f°r 100 acres of land in Fermanagh township, to which William and Robert Magill, who were also plaintiffs below, title under an application in the name of Andrew dated January 8th, 1768.

<p>ought to bed certain and</p> <p>arbitrators award a tobe paid as" the tion ot a tract of land, and iegai and equitable claims the land are eVfram''the' award, without finding the amount of the^awarcHs bad. •</p>

In Error. ON the return of the record of this ejectment from the Court of Common Pleas of Westmoreland county, it appeared, that the defendants in error, who were plaintiffs below, . . . „ . . 1 „ claimed the land in dispute under the will of their father John Sampson, who had filed an application for it on the 3d April, 1769.

In Error. EJECTMENT in the Court of Common Pleas of Armstrong County.

In Error. FROM the bill of exceptions which was returned with the record of this ejectment from the Court of Common p]eas Df Indiana countv, it appeared, that the plaintiff below, . ■ , the defendant in error, claimed the land m question under a patent to William Browne and James Harris, dated Septemfoer 21st, 1789, which recited a warrant to one Houston, and . , . , , , mesne conveyances from him through several persons to the patentees.

In Error.. WRIT of error to the Court of Common Pleas of Westmoreland county, in a suit brought by Simon Singer, of the borough of Greensburg, in-the county of Westmoreland, against Robert Piper and others, commis_ , . sioners or the county, to recover certain taxes which had been assessed on the public buildings belonging to the county, situate within the borough, u die Court below, judgment was entered by agreement, in favour of the plaintiff, for the purpose of taking a…

In Error. ERROR to the Court of Common Pleas of Fayette county, in a suit brought by Werts, the plaintiff below, against Hess and… Held: that though the stat. 9 Ann. c. 14. makes all notes, bills, and other securities, given for mo- ■ ney, lent at play, utterly void, frustrate, and of no effect, to all intents and purposes, yet the security only was void,' not the contract; and that although no action could be maintained on the written instrument, given to secure the…

In ERROR. . THIS was an ejectment in the Court of Common Pleas of Allegheney county for 259 1-10 acres of land in Elder’s distriCt.

In Error. WRIT of error to the Court, of Common Pleas of Wash- ' mgton county. , .

<p>In Error.</p> <p>THIS suit was brought in the Court of Common Pleas of Allegheny county, by the plaintiff in error, as the indorsee of a promissory note drawn by Dowling, in the name of the firm of Cochran and Dowling, payable at sixty days, without defalcation, to John M1,Donnell or order, by whom it was indorsed in blank. The process was served on Cochran alone, Dowling having left the county before it was issued. The hand-writing of Dowlinsr the drawer, and of 0 0 7 MiDonnell the indorser, were proved, and the partnership ot Cochran and Dowling admitted by the defendant, who Pr°duced the articles of co-partnership, from which it appeared, 1 A ' * . that the partners were no.t authorised to charge each other by drawing notes in the name of the firm. The defendant then offered Donnell as a witness to prove, that the note was given, not for a partnership but for a private debt, and at the same time offered his books in proof of that fact. To this testimony, the defendants’ counsel objected, but the „ , , • Court over-ruled the objection, and the evidence was ed. On his examination the witness declared, that he was interested in the event of the suit, having promised to indemnify the indorsee, in case he should not recover of the drawers. He further declared, that the note was assigned some time after it became due.</p> <p>In the books of M1-Donnell there appeared no account whatever, either against Cochran or against the firm of Cochran and Dowling; but there was an account against Doxvling alone, for groceries and other articles obviously for the use of his family; and for the amount of this private account Dowling had given the note in question.</p> <p>In the course of his charge the President of the Court told the jury, that if Dowling had given this note in a partnership transaction in the name of the firm, both parties would have been bound by it, notwithstanding any private agree-, ment between themselves, that one partner should not have power to charge the other, by drawing notes in the name of the firm ; but as this note had been given, not for a partner, ship debt, but for a private debt, the plaintiff could not recover against Cochran.</p> <p>To this opinion the plaintiff’s counsel excepted.</p> <p>cited Mannings. Wheat-lande(a) Warren v. Merry, (b) Coleman v. Wise, (c) Smede’e executors v. Elmendorf.(d) Woodhull v. Holmes.(e) Peake’s Ev. (Randall’s,) 160. 187, 188. Bayard’s Ev. 111. 113, 119.</p> <p>cited Holme v. Karsper.(f) Evans v. Smith, (g) Baker v. Arnold.(h) Livingston v. Rosevelt.(i) Chitty on Bills, 141. 144. Jackson v. Rumsey.(j) Trustees of Lansingburg v. Willard.(k)</p>

<p>The act of isi/^xpianstoryof the ¿¡ale of vacant IhkCommonwealth,” does not extend to suits commenpassagí?'6 Its ^ Q««%wheembraces the pa"</p>

In Error. , tile THIS was an action of trespass quare clausum fregit, brought by Michael Hinds, against George Knox, in Court of Common Pleas of Westmoreland county, for J 7 ing upon his lands, and cutting down arjd carrying away trees, The defendant pleaded not guilty, and not guilty within six years.

In Error. ERROR to the Court of Common Pleas of Allegheny . * J COUnty* This was an action brought by Pentland, the plaintiff below, against Gray, for defamatory language contained in an affidavit made by Gray, and sent to the Governor of the Com-“touching the official conduct of the plaintiff, who was the prothonotary of the Court of Common Pleas of Allegheny countyand also for verbal slander in promulgating its contents, ^ aPPeare The Court below were requested by the…

In Error. ON a habeas corpus directed to James D. Greason, commanding him to bring before the Court, the body of Bob, a mulatto man, it appeared, that on the 21st November, 1792, William Gibson returned to the clerk of the peace of Cumberland county, a certain male mulatto child, named Bob, born of his negro wench, named Hannah, on, or about the 23d May last.

In Error. WRIT of error to Cumberland county, John and Alexander M'-Farlane, the plaintiffs below, claimed the land for which this ejectment was brought, under warrant granted to their father, John M'Farlane deceased, ° ' J . on the 3d April, 1800, for 200 acres, including an improvexnent, adjoining lands of Samuel M'-Cormick, James M'Far-lane, George Buck, and Daniel M'Daniel, in Mifflin township; interest to commence on the 1st March, 1770. this warrant a survey was made…

In Error. THIS was an ejectment brought in the Court of Common Pleas of Huntingdon county, by fames M'-Ilroy and Joseph Jackson, administrators of fohn Little, deceased, against William and James… Held: that he is bound by a warrant without a survey, nor is the law so; and even a survey may be explained so as not to be conclusive.

Iñ Error. WRIT of error to the Court of Common Pleas of Cum-her land county.

In Error. WRIT of error to Franklin county. the defendant below, was convicted of adultery and. bastardy, but before judgment, received a pardon from the governor for the adultery. Having pleaded his pardon, the Court allowed it, so far as regarded the punishment of adultery, but gave judgment against him for costs.

In ERROR. WRIT of error to Adams county, in an action of covenant brought by Jacob Meyer, the defendant in error, against John Shoemaker, to August term, 1813. On the 27th September, 1813, it was referred under the arbitration act of 20th March, 1810. The rule of arbitration, instead of the usual submission of “ all matters in variance in the cause between the parties,” contained a submission of “ all mat- . . , , , ,, ters m variance between the parties m the cause.

<p>Where the diSres'expressed in a return ot survey differ from the natural and artificial boundaries on the fatter are to prevail j tin* less land has been intentionally thrown out, ■which is a fact for the jury to decide.</p> <p>If a lease be, t( of all that tractofland,situate,&c. supposed to contain — acres, more or less, now in the occupancy of A B,”ana AB occupy more land than the quantity expressed, lying on both sides pute with his leas”1 ¿fail * that he is in of.</p> <p>If the ful owner of a tract of land is in actual possession of a part, he is in constructive and legal possession of the whole, unless he » actually disseised; but if a man enter wrongfully into the1 possession of another, his possession does not extend beyond his aotual enclosures and improvements, and the statute of limitations will protect no other possession.</p>

In Error. ON a writ of error to the Court of Common Pleas of Cumberland county it appeared, that this was an ejectment brought by John Moore and others against William Graham and Samuel Eccles, to recover possession of a tract of land . . , . . contammg 129 acres ISO perches, situate m Middleton ship.

In Error. ERROR to Cumberland county. ... The plaintiff below, Jane Smith, claimed the land * , which this ejectment was brought, under a warrant, dated 13th September, 1774, in the name of John Agnew, for acres, adjoining some improvements made by William Hayes, on the south side. of Sideling Hill, on Campbell’s Run, Rye township, Cumberland county.

<p>In Error.</p> <p>IT appeared on the return of a writ of error to FrankUn county, that this suit was brought by Matthew Duncan, ^ plaintiff in error, against the defendant, as administrator of William, Findley, deceased, on a promissory note for 200 dollars drawn by Stirling Adams, payable to William Find- ^ or or¿er nine months after date, and indorsed by Findley. It was dated at Baltimore, June 4th, 1814. It was not proved, at what place Adams drew the note, but some tjme ¡n t}ie sumtner of 1814, he boarded at Green Village, 7 07 in Franklin county, in this State, at the house of one James M‘Anulty. Before harvest of the same year, he went from ®reen Village to Baltimore, to which place the plaintiff followed him, and got from him several horses, and other property. Adams was seen some time after this, at Baltimore, by one of the plaintiff’s witnesses, but where he ’ J * was when the note fell due, did not appear, nor was there evidence that search had been made for him by the plaintiff. No notice was given to Findley, of the non-payment of the note, before this suit was brought, ten months after the day „r Payment,</p> <p>The counsel for the plaintiff, prayed the Court below, to deliver their opinion to the jury on two points.</p> <p>1. Whether it was incumbent on the plaintiff, under the circumstances of this case, to prove a demand of payment from t|je drawer of the note,</p> <p>2, Whether William Findley was not bound to shew where drawer was to be found.</p> <p>. , , To the first question the Court answered, that the plamtiff was bound to prove a demand, or due diligence used for that purpose. To the second question they answered, that it was not incumbent on Findley, to shew where the drawer was to be found. An exception was also taken to the decision of the Court below, in rejecting testimony offered by the plaintiff. The exception, and the facts out of which it arose, will appear in the opinion of the Court, and therefore need not be stated here.</p> <p>relied on Stewart v. Richardson.(a) Bull. N. P. 273. Chitty on Bills, 155. Putnam v. Sullivan.(b) Hull v. Pitfeld.(c) Am. Dig. 88. Alexander v. Byron.(d) Boot v. Franklin.(e)</p> <p>referred to Curren v. Connery, (f) Edwards v. Thayer.(g) Bond v. Farnham.(h) Collins v. Butler.(i) Bank of North America v. M‘Knight.(j) Jackson v. Richards.(k) Berry v. Robinson.(l) Stewart v. Eden.(m) May v. Cofin.(n)</p>

<p>The dedacontract was dence^ut'not ^!l\c't^vter,ang action was not</p> <p>lent, it is void, confirmed1 by any subsetfon™ or acts ** by which its fairness is acknowledged.</p>

In Error. ON the return of a writ of error to the Court of Cornmon pieas, of Cumberland county, it appeared, that this was an ejectment, brought by Thomas Glen, Robert 31 The plaintiffs gave evidence, that there was a surplus of upwards of thirteen acres, and prayed the Court, to direct the jury, that by the deed of Thomas Glen, his son Alexander, was entitled to no more than 200 acres strict measure, with an allowance of six per cent.; and if it should appear to the jury,…

<p>In ERROR.</p> <p>ERROR to the Court of Common Pleas of Cumberland county.</p> <p>who were plaintiffs below, claimed the land for which this ejectment was brought, by virtue of an application, in the name.of J°?m Downing, their ancestor, dated July 25th, 1767, and a survey thereon of 150 acres, and allowance on 9th May, 1769. Pbe defendants derived their title, through several mesne conveyances, from Alexander Power to John Korne^u, and J J . 1 , from Kornegy to themselves. In the course or the trial, the plaintiffs called Alexander Shortis, as a witness. He was objected to by the defendants’ counsel, who produced a deed, dated November 6th, 1811, from Shortis to John Kornegy, ^or laud question, and insisted, that he was incompetent to impeach a title which he had conveyed. To obviate this objection, the plaintiffs then offered him to prove, on the v0{re dire, that he had purchased the land, at a commission-7 c 7 er’s sale for taxes, at the request of Kornegy, and as a trustee for his use. To this, also, the defendants’ counsel excepted, on the ground, that he was not a witness to prove his own agency, and that at all events, the evidence, if true, would not remove his incompetency. The Court over-ruled both exceptions, and having first heard the witness on the voire dire, permitted him to be sworn in chief.</p> <p>contended, that to permit a man to destroy a title which he had himself conveyed, was contrary to policy and immoral, because the evidence which he was called upon to give, shewed that he was not worthy of credit, and the maxim, nemo allegans turpitudimen suam audiendus est, applied with as much propriety to a witness as to a party. Such evidence had never received the sanction of' this Court. A grantor who has given no warranty and who consequently is not interested, is a good witness to support a title conveyed by himself. Lessee of Gratz v. Ewalt.(a) But that was a totally, different case from this, in which the witness was called to overturn what he had been instrumental in setting up. The case of Stewart v. Richards on,(b) in which the law was stated clearly to be, that a vendor cannot by declarations made subsequent to his deed, invalidate or impeach the title he has created; and that of Drum v. Lessee of Simpson,(c) where it was held, that the declarations of the grantor to the grantee after the execution of a deed of trust, but before the acceptance of the deed by the grantee, and therefore before the title was complete, were evidence to alter or .contradict the trust, go very far to shew, that the testimony of Shortis ought to have been excluded. He had made an absolute conveyance of the title to one under whom the defendants claimed, and if the declarations of the grantor, subsequent to the deed, are not admissible. to invalidate his own acts, on what principle can this be done, by the testimony of the grantor himself?</p> <p>If the witness was incompetent, independently of the alleged trust, he ought not by his own testimony, to have been permitted to prove himself a trustee, and thus render himself competent. In commercial cases an agent is often allowed, from necessity, to prove the authority under which he acted; but the rule is by no means universal, and in the case of An-Her son v. Hayes,(a) the Court refused to admit such evidence, declaring, that in general it would be highly dangerous to permit an agent to establish his authority by his own oath, and that there would he no security against bad men, if so broad a principle were adopted. The rule, however, is confined to mercantile cases, and does not extend to sales of lands. Lessee of Nicholson v. Mifjlin.(b)</p> <p>answered, that whether Shortis was to be viewed in the light of a trustee for Kornegy or not, he was a perfectly good witness. He was not called in order to contradict his deed, to which alone he was incompetent, but to prove, that he had not a good title when he executed it, and for this purpose, he would have been competent, provided he was willing to be sworn, even if he had given a general warranty, because he would have been swearing against his own interest. The point now raised, is neither new nor difficult. The exclusion of a witness, whose testimony tends to destroy an instrument to which he has affixed his hand, has been repeatedly decided to be confined to negotiable instruments. In Baring v. Shippen,(c) the assignor of a bond was permitted to prove, that he had obtained it fraudulently. In the Lessee of Thompson v. White,(d) the Court received the evidence of the grantor in a deed, to shew a breach of trust and a fraud in law in his immediate grantee, to whoxn the land had been conveyed in confidence, that he would dispose of it in a particular manner, which he failed to do ; and in England, the very point now in controversy was decided by Chief Justice Holt, in the case of Title v. Grevett.(e) It is an objection which goes to the credibility of the witness merely. Thill. Ev. 33, 34.</p> <p>Even if the Court below were wrong in the opinion, that Shortis was a proper witness to prove his own agency, it is not the subject of a bill of exceptions ; because, being competent to establish the main point, independently of his character of trustee, no injury could have arisen from the supposed erx-or. But their opinion on that point was correct. A witness may testify to a verbal power given him, but he cannot, by his own evidence, prove a written power. Thill. Ev. 96.</p>

In Error. THIS was a writ of error to the Court of Common Pleas of Cumberland countv, in a feigned issue directed by the Register’s Court to try the validity of a writing, purporting to be the testament and last will of Patrick Wallace, deceased, in which Sarah Wallace and Thomas Wallace, ad-a ministrators, pendente lite, of Patrick Wallace, were plaintiffs, and Charles Bovard and Rachael, his wife, who was one °f the heirs of Patrick Wallace,-w&re defendants.

In Error. EJECTMENT in the Court of Common Pleas of Cum- ... . berland county. The opinion of the Court, which was delivered by the Chief Justice, embraces the whole case, so far as it is connected with the point decided. 1

In Error. WRIT of error, to Franklin county. In the Court below, it was an ejectment, brought by the plaintiff in error, against the defendants in error, in which the verdict was in favour of the defendants.

<p>The act of i6th March, rest of soldiers underthesum oí2° d°11‘¡l> fore enlist-con» traded after enlistment, does not ex-soldiera committed by wantofsépear^iuhe1*" Mayor’s a charge of having deserted his wife and family, and left them. a charge on the guardians of the poor.</p>

<p>obtained a rule to shew cause why the judgment entered in this case, should not be opened, and the execution set aside. It appeared, that shortly after March Term, 1818, a summons issued against the fendants, returnable on the last Monday in July, which was returned, “ served,” arid on the 4th August following, the plaintiffs’ attorney signed a judgment for want of an appearance,</p> <p>shewed cause. He reviewed the several acts of assembly by which the original jurisdictiori of this Court has, from time to time, been regulated, particularly that of the 10th April, 1807, the 8th section of which declares, that the last Monday of July, shall be a common day of return for the Supreme Court of the Eastern District, at which time all writs and process may be returnable in the same manner as at the regular terms of the sai d Court, and may also bear teste on the same day. It had been the practice, he contended, to consider July as a regular Term of the Court, for many important purposes. Sheriffs’ deeds were then acknowledged ; in case of appearance, a rule to plead might be taken ; and for default of appearance on a capias, returnable to July, the bail-bond might be put in'suit. To establish the practice of taking judgments for want of an appearance, he referred to the records of ten cases in which it had been done, and insisted, that it lay on the opposite party to shew cases of judgments taken at December Term, for defaults in July. A practice ot five or six years under an act of parliament, where it is general, and the consequences of altering it would be important, fixes the construction. Regina v. Ballivos, &c. de Bewdly.(a)</p> <p>For the defendants it was answered, that the practice had not been to consider July as a Term; that it was not so counted in foreign attachments ; that the general impression of the bar was, that judgments by default could not be entered at July; that the cases cited by Mr. Rarwle, were all scire faciases, and in several of them, the proceeding was amicable, and the judgment by consent; and that if they had been cases of summonses, they were not sufficiently numerous to establish a practice. That the words of the act, merely made the last Monday in July, a day of return and teste of writs, ' and not a Term; that one Judge only sat, for the purpose of making rules and orders preparatory to trials, without the power of giving judgments; and that when verdicts were taken between March find July, judgment was never entered until December Term. The Chief Justice, in July last, refused, on motion, to enter a judgment in a foreign attachment. He cited Shaw v. Pearce,(b) and Kearney v. MiCullough.(c)</p>

<p>. Dev¡se) “I °[d^hheereon l now dwell, thereof, to her two sisters, S., J¡Je íanií üa'teb. P“™hapd give and’be-daughter*B^y to be inherited byherandher heirs lawfully htf°body¡° and ¡f either of my said children die without is-the’inhew-™ t^nce is todenext eider, di^Jj^quaiiy amongst the the'iawtui°L .ofa(| said land, to fl'om genera-^ s., took an</p> <p>“a.v ba the common for the recovecharged upon land. It seems that the executor should be made a party to the suit, or at least should have notice, with liberty to appear and plead.</p> <p>if an estate tail, charged with the payment of a legacy, be sold under an execution, for the purpose of raising the legacy, a fee simple passes to the purchaser.</p>

<p>C. S. COXE, on behalf of the attorney-general of Pennsylvania, obtained a rule to shew cause, why a mandamus should not issue to the commissioners of the county of Philadelphia, , , 11 commanding them to draw an, order on the county treasurer for certain fees claimed by him in three cases, which are stated in the opinion of the Court. *</p>

<p>_ The Court foreign attachment, because the plaintiff’s affidavit stated, fe^an?, in" ^plaintiff would for-months, promised to pays without aver-^forbear.</p>

THIS was an appeal by Mary, Clementina, Margaret, and William Plumstead, by their guardian Thomas Lowry, from the decree of the Register’s Court of the county of Philadelphia, in which the following case was stated for the • • c opinion of this Court. “ Rebecca Gore died about the 1st July, 1809, leaving to survive her Rebecca Hutton, daughter of Thomas deceased, the brother of Rebecca Gore of the whole blood; and Mary, Clementina, Margaret, and William children of George…

Foreign Attachment. A RULE having been obtained on a former day to shew cause why the attachment should not be dissolved, the plaintiff made an affidavit which was not deemed sufficient, and now Broom., on hts behalf, asked leave to exhibit a supplementary affidavit, and mentioned several cases in which they had been received, particularly the case of Fisher v. Consequa, in the Circuit Court of the United States, for the Pennsylvania district. answered, that in cases of this…

In Error. FROM the bill of exceptions which was returned with ,. _ - . _ ~ c . . the record or this case from the District • Court tor the city and county of Philadelphia, it appeared, that William Graham, the plaintiff below, and a certain Henry Rems on, were appointed by the Court of Common Pleas of Philadelphia county, trustees of the estate of James Kennedy, an insolvent debtor, who petitioned for a discharge under the act of 26th March, 1814.

<p>In Error.</p> <p>UPON a writ of error to the Court of Common Pleas of Philadelphia county, the case appeared to be this : ■ .</p> <p>brought an action against John Gilbert, the defendant in "error, before alderman Badger, to recover the sum of ninety dollars, for eighteen weeks board of the defendant’s wife. On the 16th Febtuary, 18Í6, the plaintiff obtained a judgment for the demanded. From this judgment the defendant appealed, , , , jo . “ 7 and on the 6th January, 1817, the case was tried in the Court of Common Pleas. The plaintiff proved, that the wife of the defendant, had boarded at his house eighteen weeks, and that the sum of five dollars per week, was. a sonable charge. The defendant then gave in. evidence, the following notice, published in Poulsoii’s paper of the 27th September,18l5.</p> <p>“ PUBLIC CAUTION.</p> <p>« Whereas several debts have been contracted on my account, without my knowledge, by different persons in this city; this is to caution the public, against trusting any person or persons on my account, without a written order from me for the same, as I am determined not to pay any debts or demands of that nature.</p> <p>(Signed) “ John Gilbert.”</p> <p>“ Philadelphia, 27th September.”</p> <p>This notice the plaintiff admitted he had seen. The defendant proved further, that at few-days after his wife went to board with the plaintiff, he called on him, and asked him how he expected to be paid for the board of his wife; to which the plaintiff replied, that if the defendant would not pay him, he must look to the defendant’s wife. Upon this, the defendant said he would pay his wife nothing but her monthly allowance. To shew that he and his wife lived separate and apart, and that he allowed her a separate maintenance, which was punctually paid, the defendant offered certain receipts, which were objected to by the counsel for the plaintiff, but admitted by the Court. The counsel for the plaintiff, to rebut the evidence given by the defendant, offered to prove that the defendant had deserted his wife, and had neglected to maintain her in a manner suitable to his degree. To this evidence, the counsel for the defendant objected, and the Court refused to receive it.</p> <p>1. To entitle a man to claim an exemption from the pay- ' ment of his wife’s debts for necessaries, on the ground of separation, it is necessary that he should prove, that they were separated by a binding valid agreement, made with a person able to contract; that the separation was intended to be permament, not dependent, on the arbitrary will of the husband ; that the allowance was suitable to her degree, and that it has been regularly paid. The allowance agreed on, is hot conclusive as to the amount the wife is to receive, unless the husband’s circumstances continue the same. If his fortune increase or decrease, her allowance must be greater or smaller in proportion, and the jury must form an opinion according to his situation at the time the alleged necessaries were furnished. The only evidence offered by the defendant to establish these facts, was the receipts, which, although it is admitted they were signed by the persons whose names they bear, prove nothing. They do not prove a separation, for she might have received an allowance, in the nature of pin money, while living with her husbapd. . If they afford even a presumption, that the husband and wife lived apart, they do not shew that they did so, by virtue of an agreement binding in law. A man cannot enter into an agreement directly with his wife. 1 Bl. Com. .442. Co. Lift. 112. a. It was incumbent therefore on the defendant, to shew a contract entered into on'behalf of his wife, by.a third person, who was competent to contract; and certainly the receipts do not afford the smallest inference of this. If they shew any thing, they shew a contract by a husband immediately with his wife, which' is void in law. It is not contended, that the separation must be by deed, but the agreement must be of such a nature, as will secure to the wife a proper maintenance. Besides, the receipts were not the best evidence the nature of the case afforded. The agreement which must have existed if the separation was valid, ought in the first instance to have been produced. And admitting that the persons who signed the receipts were the agents of the wife, of which there was no evidence, they amount to- nothing more,. than declarations not under oath, of third persons who might have been sworn as witnesses. Baker v. Barney.(a) Lockwood v. Thomas.(b) Thompson v. Hervey.(c)</p> <p>.2. The receipts having been received in evidence, it was ' error to refuse to permit the plaintiff to rebut them, by shewing a state of things, inconsistent with what they were supposed to prove. It is the duty of a husband not only to maintain his wife, but to maintain her in a manner correspondent with his condition in Jife. If an inference were to be drawn from the receipts as to the degree of the husband, the plaintiff had a right to shew by way of rebutter, what his degree actually was. And as the defendant had given evidence of a notice not,to trust his wife, it was competent to the plaintiff to shew, that he had deserted her, and was therefore bound to pay for the necessaries furnished to her in her distress, notwithstanding the notice ; for by the desertion he gave her a letter of credit upon the world. 1 Bac. Ab. 488. ( Wils. edit.) Bolton v. Prentice.(a) Robenson v. Grenholt.(b) M'-Gahay v. Williams.(c)</p> <p>• The question is, not whether a man is bound to maintain his wife, but as to the propriety of the decision of the Court of Common Pleas, in receiving and rejecting evidence. The defence was, that Gilbert and his wife were separated by consent, and the only question below, was, and is in this Court, on the first point, whether the receipts were competent to go to the jury. Their effect was another thing which the jury were to determine, and with which the Court had nothing to do. A man is bound to provide his wife with necessaries, but necessaries do not embrace board and lodging out of his own house. With respect to these, husband and wife are identified ; and his obligation only extends to furnishing her with- meat, clothing, &c., in his own house. If she wishes to purchase necessaries, and he forbids a tradesman to sell them to her, he is not answerable. Todd v. Stokes.(d) If however, they consent to, live asunder, the husband is not liable even for necessaries, provided he furnishes her with the means of supplying herself. It is not necessary that there should be a deed, to render the separation ‘valid; it may be proved by other evidence; and as reputation is sufficient to prove a marriage, so reputation'is also sufficient to prove a temporary suspension of marriage. The evidence given in this case, tended to prove a separation. The defendant therefore, was not liable, unless it appeared that he had turned her out of doors, which the plaintiff ought to have shewn in the first instance. So far from this having been proved, however, the receipts shew that she was furnished with an allowance which was punctually paid, and according td the case already cited of Baker v. Barney, that is sufficient to exempt the husband from responsibility. The plaintiff too, was not warned by the common reputation only of the defendant’s separation from his wife, not to trust her; he had seen the notice in the public papers, and he had been personally informed by her husband, that he would pay nothing for her beyond her allowance. This was going further than the husband was bound to do, in order to exonerate himself from liability; for if he merely proved a general reputation that he was separated, without shewing that it had come to the knowledge of the plaintiff, it would have been sufficient. It is the duty of a person who supplies a married woman separated from her husband, with necessaries, to enquire into her situation. If he fails to do so, he trusts her at his peril. M‘Cutchen v. MíGahay ,(a) Cragg v. Bozuman.(b)</p> <p>The evidénce offered by the plaintiff, was not with a view, to rebut the evidence given of separation and maintenance, but as proof of the inadequacy of the allowance, and of the desertion of the husband. The idea,of inadequacy is incompatible with desertion; for if the husband made any provision for his wife, he did not desert her. Whether that provision was, adequate or not, was a matter between the parties and their-friends, with which creditors had no concern.</p> <p>The only means by which they can recover from the husband, are by shewing, either that there was no separate maintenance, or that it was not regularly paid. In the present in- . stance, the evidence proved a separate maintenance regularly paid, as to'the amount of which the wife was concluded by her agreement. This x agreement- having been proved by evidence which the jury thought sufficient, evidence of previous quarrels, or of previous desertions, was irrelevant.</p>

<p>THIS was a foreign attachment brought in this Court to March Term, 1814, by Pelatiah Fitch and Rufus Bacchus against David Ross and Baptist Loire, in which two houses, the. property of Ross, were attached and the tenants summoned. No property belonging to Loire was attached. Qn the 30th April, 1816, judgment was obtained, and a writ of in-r ’ J 2. . , „ quiry returnable to December Term, 18.16, was executed, under which the damages were assessed for the plaintiff, in the sum of 12,715 dollars. On the 20th February, 1818, a fieri facias issued, returnable to March Term, which was levied on the two houses attached. On the 19th March,1818, a rule was granted to shew cause, why the execution should not be set aside, on which the proceedings were staid; and on the- 6th of the following July, a rule to shew cause, why the attachment should not be dissolved, was obtained, in support of which an affidavit was read, stating, that captain Ross had, on the 6th January. 1818, fallen overboard from . ' . - ’ ' • the brig Edward, or which he was master, while'on a from Rio de la Plata to Barcelona, and been lost. .</p> <p>1. That the fieri facias had issued irregularly,'because the plaintiffs had not previously given the security required by law, to restore the property attached, or its value, if within a year and a day the debt should be disproved. The 4th section of the act of 1705, indeed declares, that this security shall be given beiore sale, and alter execution is awarded ; but the practical construction of the law,-which must always have weight, has been, that the security shpúld be given before the execution actually issues. Prior to taking out execution, says Sergeant, in his Treatise on the Lato of ments in Pennsylvania, 21. 35, the plaintiff must enter into a stipulation to restore, &c. if the defendant disprove or avoid the debt within the year and a day. The attachment law of 17d5, is borrowed from the custom of London, MiClenachan v„ McCarty (a) and by the custom of London, security must be given before the award of execution, to which it is a condi* tion precedent. Serg. on Attach. 32. 195. Some period must be fixed, from which the year and a day are to run. According to the custom of London, they are computed from the titoe the execution is taken out. Leuknor v. Huntley .(a) If the same rule prevail here, which is taken for granted by the counsel, arguendo, in Meyers v. Urichfi(b) it supports the argument, that the stipulation must be entered into before the execution is issued.</p> <p>2. That the fieri facias was void, because it was in the common form, and directed the sheriff to levy on the goods, &c. of the defendant in general terms. It ought to have recited the proceedings under the attachment, and pursued them by an order to levy on the property attached. The execution must pursue the judgment. 3 Bl. Com, 412. Here the judgment was against the property attached, and the execution ought to have been so too. The plaintiff cannot have execution against the body, or against the defendant’s property in general. Serg. on Attach. 112. Yet in the present instance, he has taken out execution, not only against the general property, but against Loire also, none of whose property was attached, and against whom, therefore, there was no judgment.</p> <p>3. That the death of the defendant, before the payment of the money, 'dissolved the attachment. Much more than a year had elapsed since the judgment was obtained, before the death of Ross, and yet no execution issued until six weeks after his death ; nor was any refunding bond given. Much, therefore, remained to be done by the plaintiff to consummate his proceedings. Shall he then be permitted to avail himself of the death of the defendant, to recover a large sum of money without controversy, and without giving the defendant’s representatives an opportunity of being heard ? for this is the result, if the plaintiff succeeds. The object of a foreign attachment is twofold. 1st. To compel an appearance. 2d. If the defendant holds out, to give to the plaintiff the property attached, which, however, is very reluctantly done. When an appearance is effected, it proceeds like other suits. It is, therefore, very partially a proceeding in rem,• and after an appearance it ceases to be so altogether, and becomes a proceeding in personam. It may be dissolved by the entry of special bail; the debt may be disputed within a year and a day after the sale of the property, and after verdiet, judgment, and execution against the garnishee, the defendant may dissolve the attachment by the entry of bail, provided the money be not paid. The defendant has as long as he pleases to enter bail, provided he does it before that period. Lex neminem cogit ad impossibilia. Hoes is dead. Will the Court permit steps to be taken, to compel an appearance, which a Superior Power has rendered impossible ? In Ludlow v. Bingham,(a) the counsel in argument state, that the death of the defendant, after interlocutory judgment, will abate the attachment, and in a note a quere is put as to the effect of death after final judgment, but before the payment of the money. In personal suits at common law, death, pendente lite, always abated the suit; and even in partition, until 8 & 9 Wm. III. ch. 31, if one of several defendants died, the writ abated, and so was the law of domestic attachments until 1807. This, therefore, is not entirely a proceeding in rem. It differs altogether from an admiralty proceeding in case of prize. In proceedings in rem, the proceeding is exclusively against the res to determine to whom the property belongs; the only question is, to whom does the res belong. (This Mr. Binney denied, and cited the following cases. % Browne’s Admiralty Law, 396, 397, 398. 406. relating to proceedings against the ship for seamen’s wages; and said, that with respect to most proceedings in rem, they are not to inquire to whom the property belongs, but to enforce orders of the Court, &c.) The proceedings for seamen’s wages are not purely in rem. Nor is it denied, that a foreign attachment is partially so; but it only possesses that character where special bail is not entered, and the res is appropriated. In replevin, detinue, and all the common law remedies for a specific thing, the suit is abated by death. The same rule prevails in regard to sequestrations out of chancery, and outlawries. Sequestration is in the nature either of mesne process or of execution. Where it is in the nature of mesne process it determines by the death of the party; but if in the nature of execution, the death of the party does not determine it. 6 Bac. Ab. 126. Sequestration, A. Id. 127. Id. 134. D. Burdett v. Rockey.(b) Bligh v. Earl of Darnley.(c) In outlawry in civil cases, the king’s pernancy of the profits ceases on the death of the defendant} and there is no difference between outlawry before and after judgment. 5 Bac. Ab. 224.. Outlawry, D. Smarte v. Edsun.(a) Matthews v. Erbo.(b) The common law rule that suits abate by the death of the defendant applies with peculiar force to cases of foreign attachment. Here the attachment was solely against the goods of one of two defendants. If Ross had entered special bail he would have relieved the property attached. He was guilty of no laches. Laches is the failure to do a thing within the time allowed by law. Ross had until the payment of the money to enter special bail, and before the time had expired he was prevented by an event over which he had no controul. . The permission to the defendant to come in is not a privilege, but a mere act of justice. If he had been living, he might have controverted the plaintiff’s claim, and his death, which he could not prevent, ought not to put the plaintiff in a better situation, for it is greatly to be doubted, whether the defendants’ executor could controvert the debt within a year and a day. The bond would, therefore, be of no use. The opposite argument derives no support from the case of bail, where, if the principal dies after the return of non est inventus the bail is fixed, because a surrender after non est inventus is a mere matter of curtesy and against strict law.</p> <p>The fieri facias issued in this case, is contended to be erroneous in the first place, because no security was previously given. Our only guide on this subject is the act of assembly of 1705, which does not require security to be given before execution is issued, but before sale and. after execution is awarded. The words are plain, and there is no decision of this Court giving them a construction different from that which they naturally bear. This security was provided for the benefit of the defendant, and the later it is given, the more it is for his advantage, because he has a year and a day to come in and disprove the debt, from the date of the bond. In its general features the attachment law resembles the custom of London, but in practice it departs from it in some respects. By the custom, security is given before execution is awarded; by our act of assembly, by express words, after. Sergeant (21. 35.) refers to no authority but the act of assembly, and that authorises the bond to be taken at any time before sale.</p> <p>2. ' The second objection is one of mere form. The fieri facias was in the form used in our Courts without exception : i and if wrong, the Court would amend it. It was regularly executed, and if it had been levied on property which had not been attached, the Court would have given relief. There is no such thing as a special feri facias for the property attached, nor is there any authority in counsel or prothonotaries to mould special writs.</p> <p>3. If this were a common law judgment, the death of the defendant would not affect the' execution, for it was tested before his death, and it is perfectly clear, that an execution may be taken out against the property of the dead, provided the teste be before the death. If a defendant die in vacation, an execution may be taken out, returnable to the next Term, if it bear teste prior to his death. Oades v. Woodxvard.(a) 10 Vin. 570. Execution, pl. 9. Finch v. Earl of Winchelsea.(b)</p> <p>It is objected too, that the judgment is irregular, because it is against both defendants, when the property of one only, was attached. The answer is, that the judgment was properly against neither. The judgment was, that the plaintiff should have execution against the property attached, not that he should recover the money of the defendants. By the custom of London there is no judgment; but after four defaults, the garnishees are summoned, who plead nil debent, and the issue being found against them, to ascertain the amount in money, there is an award of execution against the money in their hands. Serg. on Attach. 239. Appx. The attachment is not to bring the party into Court; the object of it is to give the party execution against the thing attached. He has no day in Court. It is a proceeding in rem and not in personam. Serg. 110. And so it is declared in Phelps v. Holier,(c) and in Kilburnv. Woodworth,(d) in both of which it was decided, that an action would not lie on a judgment in foreign attachment. The authorities all shew it to be a proceeding in rem, making no person whatever liable, and extending only to the things attached. If so, how can the death of the defendant affect the thing, or the proceeding upon it ? There is nothing to support the idea, that death after interlocutory judgment abates the attachment, but an ar&'ument attributed to counsel in Ludlow v. Bingham. This, however, must be incorrectly reported, for the eminent counsel to whom it is ascribed, knew that in a foreign attachment, there is never a party in Court, which he is supposed to make the basis, of the argument. The case of sequestration in chancery, and outlawry in the courts of common law, arte totally different from foreign attachments. They are altogether proceedings in personam, against a party in contempt; and death purges all contempts. There are, however, some sequestrations in the nature of execution, and these are not determined by death. 1 Fern. 58. The admiralty courts are the tribunals in which the proceedings are in rem, and no instance can be shewn in which, after decree, the death of the party destroyed the proceeding in rem. The object of the attachment law, is not, as the opposite argument supposes, to compel an appearance, but to make the property of absentees liable for their debts. To dissolve the attachment is the privilege of the defendant, and he must use it consistently with the plaintiff’s security. The object in entering special bail is to discharge the garnishee; when there is no garnishee, there is no bail. It is said, that death is equivalent to special bail; but the argument in fact goes much further, and makes it equivalent to special bail and an exoneretur. It places absentees on much better ground than those who are present; for if a fieri facias be issued against one who is present, and he dies, it is good ; but if against an absentee, who dies after the sheriff has levied, the levy is gone. This could never have been the intention of the act of assembly. The defendant might have dissolved the attachment by the entry of special bail. This he neglected to do until it became impossible, and the plaintiff ought not to be injured by his laches. At common law, special bail has until the return of the scire facias against him, to surrender his principal, but if the principal die, after the return oí non est inventus, to a capias ad satisfaciendum against the defendant, the bail is fixed.</p>