Volume 4 — United States Reports

New York v. Connecticut, 4 U.S. (4 Dall.) 1 (1799), was a lawsuit heard by the Supreme Court of the United States between the State of New York against the State of Connecticut in 1799 that arose from a land dispute between private parties. The case was the first case in which the Supreme Court exercised its original jurisdiction under Article III of the United States Constitution to hear controversies between two states.

<p>Practice. — Nonpros.</p>

Hazlehurst v. United States, 4 U.S. (4 Dall.) 6 (1799), was a 1799 decision of the United States Supreme Court asserting that the appellants' (several similar cases were combined) failures to appear in court regarding their writs of error resulted in the Court issuing a orders of non prosequitur. The case was a federal case from South Carolina disputing their written seal on a bond which was purportedly improper because a wax seal was required.

Turner v. Bank of North America, 4 U.S. (4 Dall.) 8 (1799), was a 1799 decision of the United States Supreme Court asserting that "[t]he 11th section of the Judiciary Act, (1 U. S. Stats. at Large, 78.) makes it necessary to state on the record the citizenship of the payee of a negotiable note sued on by an indorsee."

Mossman v. Higginson, 4 U.S. (4 Dall.) 12 (1800), was an 1800 decision of the United States Supreme Court asserting that "The parties to an equity suit must be so described on the record as to show that the court has jurisdiction. It is not enough that an alien is a party; the other party must be a citizen. A writ of error may be amended by filling the blank left for the return day, there being enough on the writ to amend by."

Held: possessed or were entitled *to, in law or equity, on the 19th day of April 1775, and which they have held since, or do hold in possession, or others holding in trust for them, or to which they are, or may be, entitled, in law or equity, or which they may have, hold or be possessed of, in right of others, together with all debts, dues and demands of whatsoever nature, that are or may be owing to the aforesaid…

Error from tbe Circuit Court of Georgia. It appeared from the record, that “Marian Kincaid, of Great Britain, widow, demanded against John G. Williamson, the one-third of 300 acres of land, &c., in Chatham county, as dower.

Writ of error from the Circuit Court of Virginia. The judgment was rendered in the circuit court, on the 28th of May 1799, and a writ of error issued, returnable to August term 1799 ; but the record was not transmitted, nor the writ returned into the office of the clerk of the supreme court, until the 4th of February 1800. Swift objected to the acceptance and return of the record and writ: And—

Error from the Circuit Court of New Jersey, sitting in equity. It appeared, that the defendants in the circuit court had pleaded the statute of limitations to the bill of the complainants ; and that the plea was overruled, and the defendants ordered to answer the bill. On this decree, the present writ of error was sued out, and Stoclcton (of New Jersey) moved to quash the writ, because it was not a final decree, upon which alone a writ of error would lie.

<p>This was an appeal from the Circuit Court of Virginia; and the preliminary question discussed was, whether such a process could he sustained? After argument—</p>

Course v. Stead, 4 U.S. (4 Dall.) 22 (1800), was an 1800 decision of the United States Supreme Court in which the court held that "A writ of error, tested in the vacation after the last term, is amendable. The omission of the name of the district in the address of the writ is not material if the indorsement and attestation show the district. If the value of the matter in dispute does not appear, it may be shown by affidavit. If a new party and subject-matter are brought before the court by a supplemental bill, it must show that the court has jurisdiction by reason of the citizenship of the parties to that bill." The decision also held that the Supreme Court could take judicial notice of state laws without the laws having to be proved proved as fact in lower courts.

Priestman v. United States, 4 U.S. (4 Dall.) 28 (1800), was an 1800 decision of the United States Supreme Court asserting that "Under the 19th section of the act of February 18th, 1793, (1 Stats, at Large, 313,) goods are liable to forfeiture though they did not belong to the master, owner, or any mariner of the vessel in which they were imported, and though the duties were paid on them at the port of entry." It was decided on August 13, 1800.

Error from the Circuit Court of New York. It appeared on the record, that Captain Talbot, of the frigate Constitution, having recaptured the Amelia, an armed Hamburg vessel, which had been captured by a French national corvette, and ordered to St. Domingo for adjudication, brought her into the port of New York.

Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) was a case in maritime law, argued before the United States Supreme Court in 1800. The parties were John Bas, owner of the private vessel Eliza which was captured by French privateers at sea, and Tingy, commander of a public armed vessel—the Ganges—which recovered the Eliza.

Held: that it was to be governed by the law of the latter place. The note was indorsed in blank, and a foreign attachment was served on the maker, while the note was in the possession of the defendant in the attachment, who, after such service, passed the note to a third person, for a full consideration, without notice: Held, that the attachment could not be sustained.

Held: that the heir at common law was entitled to intestate’s real estate, and that the act of assembly of the 19th April 1794, did not provide for this specific case.

Held: that these variances were not fatal. It did not appear, by the return of the writ of partition, that the parties attended, or were warned to attend at its execution, and the inquisition did not state, that the property was assigned and delivered, but merely, that it was allotted: Held, that the partition was valid. In Error from tbe Supreme Court.

In Error from the Supreme Court. A declaration was filed in the court below, by the plaintiffs in error, against the defendants, in which they set forth, “ that on the-- of- 1790, and thence continually, they have been seised in their desmesne as of fee, of and in a certain water grist-mill, with the appurtenances, upon Wissahickon creek, in Philadelphia county; that the defendants, all the time aforesaid, were, and still are, in possession of a certain other water…

Held: that the assignment was fraudulent in law, and void as against a creditor, who had obtained judgment previously to any one assenting to take under the assignment. Addison and Coxe, JJ., dissenting. Semble, that voluntary assignments, stipulating for a general release to the debtor, or with a classification of creditors, according to which a priority of payment is to be observed, may be valid.

<p> Verdict. </p> <p>If debt be brought against executors, on simple contract, it will be bad on demurrer, but if they plead to issue, they cannot afterwards make the objection.</p> <p>After a verdict, it will be presumed, that everything was done at the trial, which was necessary to support the action, unless the contrary appear upon the record.</p>

This was an action brought by the indorsee of three bills of exchange, against the indorser.

Error from the Supreme Court of Pennsylvania. These actions depended chiefly on the same facts and principles; and were argued together, both in the supreme court, and in this court. The facts were these : John Chaloner was appointed an auctioneer for the city of Philadelphia, on the 1st of August 1*791, and gave a bond to the secretary of the commonwealth, in the penal sum of 2000Í., with two sureties, namely, Leonard Dorsey and Thomas Lea, who are both since dead.

<p> New trial. </p> <p>Where parol evidence had been allowed to be given of the contents of a deed and of a will, without previous notice to the defendant to produce it, and it appeared, that two of the jury had testified to their brethren, on the question in issue, after the jury had withdrawn, a new trial was granted.</p>

<p>the case was discussed on several grounds: 1st. That a court of chancery would give relief upon the bond. 2d. That to prevent a failure of justice, the courts of Pennsylvania will amplify their jurisdiction, upon principles of equity. 3d. That the will of the testatrix, directing the payment of debts, would make the bond a charge on the executors as a debt in equity. And the following authorities were cited to show the principle, on which a court of equity would interpose ; and the extent to which the courts of Pennsylvania had exeroised an equitable jurisdiction. (1 Ves. 517, 163; Prec. Ch. 328; Gilb. Eq. 83; 2 Ves. 193; Bro. Ch. 20; 2 Atk. 68; 1 T. R. 5; Pow. on Cont. 89; 1 Dall. 213-4, 339 — 40; Eq. Rep. Gilb. 84; 1 Dall. 17, 72, 428; 2 Vern. 225; Doug. 53; Cowp. 201-4.) The executors being bound to pursue the directions of the will, the devisee ought not to be permitted to resist it.</p> <p>— A court of chancery would not do that for the plaintiff, which would be the consequence of a general judgment in his favor. _ The wife’s engagements have never *been satisfied in equity, beyond -I her personal estate, and the rents and issues of her real estate ; but a general judgment, in Pennsylvania, would bind the real estate absolutely ; so that it might be taken in execution and sold. If, indeed, this were a couit of equity, the defendant might make many matters appear to rebut the plaintiff’s equity, which it is too late to urge on a special verdict. And this court, as a court of common law, will never consider bonds as appointments, when the party could not legally enter into a bond. (Norton v. Tur ville, 2 P. Wins. 145; 1 Bro. Ch. 16.)</p>

Held: that this confession was admissible in evidence, and that the point for consideration was, whether the prisoner had falsely declared himself guilty of a capital offence.

Ejectment for twenty-three acres in Philadelphia county. It was agreed, that John Hunt (under whom both parties claimed) died seised of the premises ; and the lessor of the plaintiff’s immediate title was derived under a judgment obtained against Hunt’s executors, in June term 1786, at the suit of Thomas Corbin, for 105Z. 10s.; upon which there was an execution, a sheriff’s sale, and a sheriff’s deed to the plaintiff, dated the 5th of. June 1787.

Held: that the record was admissible. Blunston’s licenses have always been deemed valid, and many titles in Pennsylvania depend upon them. 1 A mere improvement right, subsequent to a legal right vested in another, ought never to be rendered effectual in favor of a settler. 2 An award of referees cannot give a right to land, but will settle a dispute about it, either in an ejectment, or in an action of trespass, and such…

Ejectment for lands in Mifflin county. On the trial of the cause, the following general principles were stated in the charge to the jury.

This ejectment, depending in Allegheny county, was marked for trial on the list of causes at nisiprius. The defendant’s attorney, after looking at the papers of the opposite party, confessed judgment.

Debt, for rent. The facts were these : Nancarrow advertised to let the room and front cellar of a house, which he rented from Pemberton; and the defendants agreed to take them at 130i. per annum, commencing the 27th of July 1784, and continuing until the end of Nancarrow’s term in the house. A lease in writing was drawn, but never executed, though the defendants entered into possession of the premises, made some repairs, and paid a part of the rent.

Indictment for the murder of Jane McGIaughlin. It appeared in evidence, on the trial, that Hugh McGIaughlin, the husband of the deceased, rented from the prisoner, a part of the house in which she lived; that on the 10th of June 1792, while it rained hard, a noise was heard at the house, and the deceased was attempting to get in ; that she said, “ You whore, let me come in and the prisoner said, “ You whore, you shan’t;” that the deceased appeared to be then in liquor,…

Held: that if the parties live in the same town, an allowance of even a single day to the holder is quite sufficient. But in Pennsylvania, the question of reasonable notice still remains a fact for the jury to determine. Before the institution of the Bank of North America, promissory notes were few; there was no time fixed for giving notice ; and two or three months have often elapsed, before it was given.

Case. Plea, non assumpsit. The defendant offered to give infancy in evidence, on this plea; to which the plaintiff objected. But—

Held: that, considering the circumstances of the case, it would be excessive, to give the full value of the land in damages; that the jury might depart from that -standard, and that the intimation of intestate, that he would give plaintiff a child’s share of his estate, might be construed as explanatory of his former promise.

Ejectment, tried at York Town, in which defence was taken for one-third part of the premises. The title of the lessor of the plaintiff was deduced from a patent, dated the 10th of June 1734, to Thomas Lenton, who conveyed, on the 8th of January 1741, to James Rowland, and James Rowland afterwards conveyed to Robert Rowland, who devised the premises to his sons James, John and Matthew, by a will dated the 9th of January 1799.

This was an action of debt, on articles of agreement to pay 1351., in two instalments, for lands bought by the defendant from the plaintiff ; and in the articles it was stipulated, that “ the deed of conveyance shall be made to the said Michael Ketch, at the first payment.” The defendant offered the parol testimony of a witness, who was present at the execution of the articles, to show that by the expression, “ the deed of conveyance,” the parties meant and understood, a “…

This was an action on the case, for goods sold and delivered to William Niell, upon a special assumpsit by the defendant, Thomas Niell, to guaranty the payment of the price : pleas, 1st, non assumpsit, on which issue was joined ; and 2d, the statute of limitations, to which, resident beyond seas, was replied, &c. The plaintiffs were British mei’chants, from whom William Niell, a trader in Baltimore, was accustomed to import goods.

Case. The facts on which the present cause depended, will be found in the report of Ingraham, indorsee, v. Gibbs et at. (2 Dall. 134) ; and the note annexed to it. (Ibid. 136.) The following charge- was delivered to the jury.

Held: that N. was not a vitness for the plaintiff; being liable to plaintiff for the costs of suit, in addition to the amount of rent recovered. Rush v. Flickwire, 17 S. & R. 82.

A habeas corpus was issued to the jailer of Philadelphia, to bring before Judge Shippen, the bodies of Magdalen and Zare, two negro women, committed as the absconding slaves of Mrs. Chambré.

Indictment for murder of the first degree. The charge of the court was delivered by the Chief Justice, who stated the facts and the law to the following effect :(b)

These were actions on the case, in which the plaintiffs declared on a general indebitatus assumpsit, for money had and received by the defendant (who was the surviving administrator cum testamento annexo of Catharine Hollobaok) to their use, respectively. They claim, distributive shares in the residuum of the estate of Catharine Hollobaok, under her will: but it was questioned, whether such actions would lie, without proving an assumption on the part of the defendant.

This was an action on the case for obstructing a water-course, by which the plaintiff’s meadow was watered. On the trial, it appeared, that the defendant had purchased a mill, with notice that the vendor had before sold the meadow in question to the plaintiff, covenanting that the plaintiff might use the water, over and above what was necessary for the mill.

This was an action on the ease for damages, which were laid at 10,000?. in the declaration, founded upon the following agreement, signed by the defendant: “ I do certify, that I have bought of William Graham 17,344 dollars, six per cents of the United States, to be delivered to me, On the 1st of July next, on my paying to him, on or before transferring the same, the sum of 22,318 dollars in specie.

Held: that when land, subject to a mortgage, is sold under a judgment, obtained subsequently to the execution and recording of the mortgage, the purchaser at sheriff’s sale takes the land discharged of the lien of the mortgage.

Case, by the indorsee against the payee and indorser of a promissory note, made by Joseph Harrison. The question was, whether the defendant had received notice within a reasonable time, of the non-payment of the note by the maker?

This was an action on the case, to recover damages, for the breach of an agreement to sell and convey to the plaintiff, in fee-simple, a tract of land in Westmoreland county. offered parol evidence of the agreement, as stated in the declaration; of the payment of the price of the land; of the defendant’s subsequent acknowledgment of the sale and payment; and of the defendant’s refusal to execute a conveyance. objected to any proof of a parol agreement, for the sale of lands…

Scire facias on a mortgage. The mortgage had not been recorded, conformable to the act of assembly ; and Lockart had purchased the premises. But, on the trial, the plaintiff proved, that Lockart knew of the existence of the mortgage, at the time of his purchase, and said he would have to pay it, although it was not then recorded.

The plaintiff resided in the Havana, and was the agent of the defendants in fitting out a privateer for them, during the war. On the trial of this cause, he produced, and swore to the authenticity of, his book of original entries (some of which were made in his own handwriting, and some in the handwriting of a clerk), to prove the disbursements for the privateer.

Held: that the ejectment was well brought, within the six months allowed by the act of 1792. This cause Lad been decided by the board of property, in favor of the defendant, upon a caveat respecting land in Northumberland county, on the 14thof February 1796; but the patent was stayedfor six months, within which time, the party is allowed, by the act of assembly, to enter his suit at common law, in the nature of an appeal.

<p>This was an appeal from the Orphans’ Court of Dauphin county, under the following circumstances : John Harris, by his will, dated the 25th of May 1790, proved 2d of August 1791, bequeathed all his personal estate to his sons, David, Robert and James, and his daughters, Mary McClay and Mary Hanna, to be equally divided between them. He also ordered his executors to sell all his lands, not otherwise disposed of by his will, and divide the proceeds as aforesaid. He directed his executors to settle their accounts in the orphans’ court, in one year after his decease, and continue to settle an account annually, until the estate was finally settled.</p> <p>In January 1795, a citation was issued at the request of William McClay, one of the executors of John Harris, against David Harris, Robert Harris, John Andrew Hanna, Joseph Work and John McClay, the other executors, to appear at the next orphans’ court for Dauphin county, to make a full disclosure of all effects and estate of the deceased which had come to their hands, possession or knowledge, and settle and abide the order and judgment of the court in the premises. The cause came to a hearing in the orphans’ court, in September 1795 ; when a motion was made by McClay’s counsel, that Robert Harris and John A. Hanna should answer on oath, to a charge of having received money for the sale of sundry lots, which had been conveyed to them by the testator, by absolute deed, on a secret trust to be accountable for the proceeds of the sales ; and that they should bring the said proceeds into their administration account, and charge themselves therewith. The Court determined: — 1st. That the said Harris and Hanna, should not be obliged to answer on their oath to the said charge: and 2d. That the *1611 P-ainti® should ’’-not be allowed to produce evidence, to substantiate the truth of his charge against the said John A. Hanna ; but that the account of the said Harris and Hanna, as then exhibited to the court, should be received and passed. The plaintiff appealed from this judgment; and the cause came up on the appeal.</p>

Ejectment, tried at West Chester, in Chester county, on the- 22d of October 1793. The jury gave a verdict in favor of the plaintiff, for the premises mentioned in the declaration; and also for 41i. 13s. 4d. damages, being the value of the mesne profits ; subject to the opinion of the court on a point reserved ; to wit: whether the mesne profits can be recovered in an ejectment, by way of damages?

Ejectment for 400 acres of land at Gerty’s Run, across the Allegheny, the plaintiff claiming under settlement and survey.

In this case, a testatimfi.fa. issued on the 27th of December 1798,returna-ble to March term 1799, which was levied on twelve horses. A venditioni exponas issued to September term 1799 ; and an alias vend. exp. issued to December term 1799.

<p> Forfeiture. </p> <p>A tenant by the curtesy initiate, has not an estate forfeitable upon his attainder for treason.</p>

<p> Collateral warranty. </p> <p>A collateral warranty of an ancestor, who had no estate, in possession, of the premises, is an estoppel to his heir. (d)</p> <p>The Stat. 4 Anne, c. 16, § 21, is not in force in Pennsylvania.</p>

<p> Negotiable mstrument. </p> <p>A contract to receive from J. B., or order, certain stocks, is negotiable.</p>

Held: that A. & B. were entitled to their demand, and that their debt to C. & Sons was paid in law, by the conduct of the latter.

<p>This was an action brought by the indorsee against the indorser of a promissory note for $5000, made by Samuel Emory, on the 2Gth of December 1795, and payable 65 days after sight. The maker failing to pay the note, it was regularly protested, on the 3d of March 1796 ; and the only question agitated upon the trial, was, whether reasonable notice of the non-payment was given to the indorser, or due diligence employed to give it ?</p> <p>The material facts were these : Emory and Dennison had purchased from the managers of the Schuylkill canal lottery, a number of tickets, for which a note was given to the president, the plaintiff in this action. The purchasers settled their accounts of the speculation, before the note became due, in consequence of which Emmory was bound to pay the note; but when it became due, Dennison agreed to continue his indorsement for the accommodation of Emory, though the joint interest had ceased ; and the plaintiff, by way of renewal, at the instance of Emory, took the note on which the present action was instituted. Dennison was not a permanert inhabitant of Philadelphia, but was domiciled at Havre de Grace, in Maryland. He had, however, an agent in Philadelphia, to whom the banks, in consequence of written instructions, delivered the notices of his paper engagements, payable there, on which he was maker (not indorser), during the years 1795 and 1796 ; and who, constantly, for that period, made the necessary payments ; nor would he have hesitated (he declared) to pay the px-esexxt note, if he had been informed of the default of the maker. It appeared likewise, that Dennison was, occasionally, in the city of Philadelphia, in the months of February, March, April, May, June, August and September 1796 ; and *in the month of May, Emory informed him of the protest; but at the same time, declared that he had made preparation to discharge the note. On the other hand, it was proved, that after the default of the maker, particular and repeated inquiry was'made for the indorsor, by the notary, as well from Emory as others; that the indorser was not then in Philadelphia, and the notary did not himself know that he had an agent hero, for such purposes, though he knew there were transactions of business between him and the person who was said to have been his agent; that the notary heard Dennison lived at Havre de Gx*ace, but at the same time, was told, he had gone to the eastwax-d ; that as soon as the plaintiff undei’stood that Dennison was in the city (about six weeks or two months after the protest), the plaintiff’s clerk called on Dennison, mexxtioned the facts, and demanded payment; when Dennison said, that he had received no pax-t of the proceeds of the lottery-tickets ; but that he would urge Emory to discharge the xxote.</p> <p>on these facts, that there was not reasonable xxotice of the protest of the note, nor due diligence to give it: that under the circumstances of the case, the defendant was not under a moral obligation to pay the note, and might faix-ly take advantage of the strict rule of law, aecox-ding to 1 Dall. 234, 252, 270; 2 Ibid. 158, 192 ; that no notice was given to the indorser, until May 1796, though he was occasionally here, before that time, and subsequent to the protest; though he had an agent here ; and though he lived in a neighboring state, to which the post would have carried notice, in the course of a few days ; and that actual knowledge of non-payment is not sufficient to charge an indorser, xxnless the infox-matioxx is x-cceived px-omptly from the holde, with notice that he looked to the indorser for payment: Kyd on Bills, 79; 1 T. R. 167; 5 Burr. 2670; 1 T. R. 712.</p> <p>that as the private arx-angement between Dennison and Emox-y was unknown to the plaintiff, his claim upon the defendant, in xnorality, as well as law, could not be impaired by it; that, the law was not coixtrovcrtcd, on the authority of the cases cited ; but still it left the matter of fact to be ascertained, what was reasonable notice ol px-otest, under all tlxe circumstances of the case? That the first important feature of the case exhibits the defendant as a non-resident of Philadelphia, a mere transient visiter ; that notice sent south to Havre de Grace, when it was known he had gone north, would have been useless and idle ; that the notary did not know, and the evidence is, otherwise, uncertain, in the instance of the defendant’s being an indorser, that he had any agent in Philadelphia : and that due and diligent inquiry was made for the indorser in Philadelphia, where the consideration arose, and the note was given.</p> <p>*As to the cases cited for the defendant, they are susceptible of answers, easily distinguishing them from the present case. Thus, in 1 Dall. 234, 270, the bill was kept two years and a half ; the indorser lived in Poughkeepsie, only 130 miles distant; he was a man of note, in extensive business, and actually had some transactions with another of the indorsers. In 1 Dall. 252, the note was protested for non-payment on the 12th of June 1786 ; on the 5th of July and 23d of August, the plaintiff received partial payments from the maker ; and it was not until after the last date, when the maker had become embarrassed, that notice was given to the indorser ; who, during the whole time, lived and kept a counting-house in Philadelphia. In 2 Dall. 158, both parties lived in Philadelphia; and the jury thought throe or four days was not too late to give notice. In 2 Dall. 192, the bill oi exchange was drawn in September 1781, presented and refused acceptance in November 1781, and protested for non-payment in August 1782 ; but no notice was given to the indorser until the beginning of the year 1790. When the bill was presented, the drawee had funds of the drawer in his hands ; but he had paid the amount to the drawer’s agent, who died, and whose wife had lost the money.</p>

Held: that no title could be acquired, until the performance of the terms of improvement, settlement, and residence, though the was should last for a century; nor even then, unless the warrantee had, during the whole war, persisted in his endeavours to perform them. 3d. A third construction maintains, that if a warrantee has been prevented, by force of arms, from accomplishing the improvement, settlement, and residence,…

Held: that he should not be allowed to strike it out. Nothing that passes before a judge, on a question, of bail, can be evidence on the trial of a cause, unless it was clearly admitted as a fact, by the opposite party. The following points occurred in this case: I. The issues in this case were joined on pleas of non assumpsit, and payment.

This was an action on the case, against the owner of the ship Edward, for running foul of and sinking the brig Katy, at the piers in the river Delaware, by negligence, and improvident and unskilful management, &c. The defence was made on three grounds : 1st. That the injury was occasioned by unavoidable accident, for which no reparation ought to be exacted. 2d. That as the ship Edward was in the charge of a public pilot of the port (a person not the choice, nor the voluntary…

Trespass for goods of the testator, taken and sold by the sheriff, on an execution issued against Dewees. The principal part of the goods were claimed by the testator, under a distress and sale, which he had also executed against Dewees; but he had left the goods in Dewees’ possession for four or five years. The charge contained the following points :

<p>Ejectment for land on the north-west of the rivers Ohio and Allegheny and Conewango creek.</p> <p>dated the 4th of March 1793, on which a survey was executed, on the 12th of November, 1794; but he had made no endeavor to settle the land, until July 1796.</p> <p>under a settlement commenced in the year 1796, prior to any attempt by the plaintiff ; and upon a presumption that the plaintiff had incurred an absolute forfeiture of his rights, by not making a settlement within two years from the date of his warrant, according to the terms of the act of the 3d of April 1792. (3 Dali. Laws, 209.) But—</p>

<p>Shifted warrant. — Evidence.—Fraud.—Laches.</p> <p>A warrant that loses its descriptive location, by a prior warrant, may be laid on any vacant land.</p> <p>A survey made on a shifted warrant, only confers title from its return.</p> <p>The letter of a deputy-surveyor to his assistant, directing him to make a survey, is primA fade evidence.</p> <p>No person can derive title under a location, that claims under one who connived with a public officer in the commission of a fraud.</p> <p>What is such lapse of time, as amounts to the dereliction of an inceptive right, by application.</p>

<p> Riparian owners. </p> <p>Every one has a right to use the water passing through his land, as he pleases, provided, he does not injure his neighbor’s mill; and that, after using the water, he returns it to its ancient channel.1</p>

Certiorari, to remove the judgment and proceedings in a case of forcible entry and detainer, from Luzerne county. The inquisition stated, “ that Nathan Beach was possessed in his demesne as of fee, &c., and continued so seised and possessed, until the defendant did enter, and him the said Nathan Beach thereof disseised,” &c. It was objected, that the prosecutor is stated to have been only possessed of the premises, whereas, the evidence proved him to have been seised. But—

Writ of Dower. The inquisition stated, that the husband did not die seised of the premises; and found damages for the detention of dower, with costs. JRoss moved to quash the inquisition, so far as respects the damages and costs.

Certiorari, to remove the proceedings in a case of forcible entry and detainer. Ingersoll urged the immediate hearing of the case, in order to avoid the inconvenience of a sentence of restitution, when great error existed on the record.

Venditioni Hxponas. A rule being obtained on the sheriff of Philadelphia county, to bring into court the money levied on this execution ; another rule was also entered, to show cause why Samuel Coates should not receive, out of the money, an equal dividend or proportion with other judgment creditors, whose judgments were entered on the same day, and who had not issued writs of ca. sa.

<p> Shifted warrant. </p> <p>A survey on a shifted warrant will not prevail over a subsequent descriptive one, though the warrantee had notice thereof, before his own survey was made; otherwise, of a subsequent indescriptive warrant.</p>

Ejectment, for 306 acres of land in Northumberland county. The case was this : On the 13th of September 1114, John Read, being seised in fee, mortgaged the premises mentioned in the declaration, to “ The trustees of the general loan-office of the province of Pennsylvania,” incorporated under *2191 aot of February 111.3. (1 Dall.

<p>Ejectment, for 400 acres of land, lying north-west of the river Ohio. Both parties claimed under settlement-rights. The defendant’s improvement commenced one day earlier than the plaintiff’s ; hut the plaintiff had the first warrant; and ho had been constantly resident on the land, except when he left it, through imminent danger from the Indians. The defendant’s improvements were greater than those of the plaintiff (for he was a richer man), but he was often absent from the premises, sometimes as a volunteer in the public service, and sometimes living at a distance with his father or brothers.</p>

These causes were referred, on the 22d of January 1800, by agreement of the parties, and several meetings were held by the referees, at which the parties exhibited their respective proofs, and were heard by themselves or their agents.

This was an action brought by the plaintiff, as indorsee and holder of several promissory notes, made by Dorey & Bayhir, in favor of Joseph Mussi, against the defendants, to whom Dorey & Bayhir had assigned all their estate, in trust for the payment, pro rata, of such of their creditors, as should, within a certain period, execute a general release ; and the dividend of the non-assenting creditors was to be paid to them.

The Attorney-General made a motion, for a rule to show cause why an information should not be granted against the defendant, the president of the courts of common pleas, in the fifth circuit ; on the affidavit of J. C. Lucas, an associate judge of the court of common pleas of Allegheny county, stating that he had been wilfully prevented by Mr. Addison, from deliver-big his sentiments to the grand jury, after Mr. Addison, as President, had. concluded his charge, &e. In…

This was an action on the ease, brought by foreign merchants, against the defendant, to recover the amount of money lent to the master, to pay for disbursements in repairing and supplying his ship in a foreign port.

Case, on a special assumpsit. The declaration contained three counts, of each of which, the following is the substance. 1st Count. — After stating that a controversy subsisted between the plaintiff and one Rowson (a British merchant, for whom the defendant was agent); that they had agreed to enter an amicable action and reference, in the federal circuit court, and that the referees met on the 12th of January 1798 ; the declaration proceeded, that at the said meeting, “ it…

Quo Warranto. The President having honored the defendant with an appointment, as attorney of the United States for the eastern district of Pennsylvania ; and the Governor having been pleased also to appoint him Recorder of the city of Philadelphia; it was thought, by some of the members of the select and common councils, that the tenure of these offices, by by the same person, at the same time, was constitutionally incompatible.

This was an aetion brought upon the following circumstances, which appeared in evidence upon the trial of the cause. The plaintiff, Mr. Levy, kept his cash account with the Bank of the United States.

Covenant, on a policy of insurance, dated the 30th of November 1792, upon the freight of the brig, called the Benjamin Franklin, valued at $3000, for a voy3ge “ at and from Bordeaux to a port in the United States,” against “ the seas, &e., arrests, restraints, detainments of all kings, &c.,” in the usual terms of the printed policies.

The following case was submitted for the opinion of the court: On the 2d of June 1798, a levy was made by the sheriff on a kiln of unburnt brioks, and other property, by virtue of a fi. fa., for a debt of 149/. 15s., with interest and costs.

This was an indictment, on the 17th section of the election law (4 Dali.

In August Session 1801 of the Court of Quarter Sessions, the grand jury of Luzerne county presented the following indictment: Luzerne county, ss.

In Error from the court of Common Pleas of Northumberland county. The case was briefly this : William Wistar brought an action of debt against James Black, in the common pleas, to April term 1798. The writ demanded a debt of 766?. 9s. 5cl. The declaration demanded a debt of 766?. 4s. 5c?., on a bill obligatory for that sum, dated the 28th of May 1796, and payable in three months, with interest.

This was a replevin for fifteen hogsheads of rum ; and the matters in dispute were referred to James Currie and David Winchester, with power to choose an umpire, if they disagreed. The two referees met, by consent of parties, in Baltimore ; and both sides were fully heard ; the evidence being all in writing, and no part of it rejected.

This case came before the court, on exceptions to the report of referees, who had exercised the right of appointing an umpire, under tho rule of reference. After argument, by M. Levy, for the plaintiff, and by McKean and Dallas, for the defendants, the Chief Justice delivered the unanimous opinion of the court, for setting aside the report, on the following grounds :

This was an action upon an open policy, dated the 10th of March 1798, in goods on board the Andrew, Captain Macken, bound from Charleston to Amsterdam. The ship sailing on the voyage insured, was captured, on the 11th of April 1793, by a French privateer, and carried into L’Orient, where, after a few days’ detention, she was acquitted and restored.

On the 2d of April 1802, an act of the general assembly was passed, entitled “ An act to settle the controversies arising from contending claims to land, within that part of the territory of this commonwealth north and west of the rivers Ohio and Allegheny and Conewango creek” (P. L. 153), by which the judges of the supreme court were directed to devise an issue, for trying the following questions, at Sunbury, in Northumberland county:. 1st. Are warrants heretofore granted…

Case on a policy of insurance, to recover for a total loss by capture. On the trial of the cause, two points of defence were urged : 1st. That there had been a deviation ; inasmuch as the vessel traded at the port to which she was carried by the captor. Park, 311, 312, 313, 295. 2d. That the extra-expenses for wages, provisions, &c., during a capture and detention, were not a subject of general average ; but a charge on the freight.

This was an action brought against Parker & Wharton, the indorsers of a promissory note, instituted at the same time that an action was brought against George Eddie, the maker of the note. There had been a trial, and verdict for the plaintiff, in December term 1801, subject to the opinion of the court upon a case stated, involving two questions : 1st. Whether a plea puis darrein continuance had not been entered too late by the defendants ?

Debt, on the official bond of Peter Baynton, as state treasurer, dated the 11th of January 1797, against him, and his sureties, David Lenox, William Hall and Joseph Bullock.

Held: that the jury might find damages as for a partial loss. This was an action on a policy of insurance, in which the declaration ' was for a total loss.

Debt, on an arbitration bond. Upon oyer of the bond and condition, it appeared, that the defendants, as heirs of Jonathan Pasohall, had entered into a bond, dated tbe 14th of September 1796, in the penal sum of 500i., conditioned for the performance of an award, by arbitrators mutually named by them and the plaintiffs, to be made “ of and concerning all matters in controversy between them respecting a certain bond given by the said Jonathan Pasehall to the said James Fisher…

This was an action of account-render, brought by Crawford & Co., of Rotterdam, against Willing & Morris, of Philadelphia.

Case, for goods sold and delivered. There was a special defence, that the defendant had sold and conveyed to the plaintiffs, a quantity of land in the county of Northumberland, in satisfaction of their demand; and the deed of conveyance, dated in June 1799, was produced. But the plaintiffs insisted : 1st. That they took the conveyance only as a collateral security : and 2d. That they were imposed upon by the defendant, as to the quality of the land.

The following case was stated for the opinion of the court: “ On the 19th day of August 1793, David Cay and Andrew Clow, who then carried on business under the firm of Andrew Clow & Co., indorsed a note made by Henry Darroch, bearing that date, for the sum of $852.82 ; which note was discounted by the President, Directors and Company of the Bank of the United States, defendants in this action, and the amount paid to the indorsers.

This was an action on the case, brought against the defendant, by John McCulloch, as administrator of Robert Parland, under letters of administration granted by the orphans’ court, and tested by “ the register of wills for Prince George county,” in the state of Maryland, on the 8th of October 1799, addressed to John McCulloch of “Alexandria, in the state of Virginia.” The only controverted question in the cause was submitted to the court, all the judges being present: to…

Held: that the act did not apply to warrants to be located on lots within the city of Philadelphia. (a) On the 15th of March 1802, a rule was obtained upon the receiver-general, which was afterwards extended to the secretary of the land-office, to show cause why a mandamus should not issue, commanding them to receive a certain certificate, in payment for city lots, located by the late Thomas Billington.

<p>Case, on a policy of insurance upon sliip and cargo, containing a warranty against seizure or detention for any illicit or prohibited trade, (b) It appeared in evidence, that the vessel and cargo were owned by the plaintiff, and were insured on a voyage from Philadelphia to Cape Franjois ; thence to New Orleans ; thence back to the Cape; and from the Cape back to Philadelphia. When the vessel had arrived at the Cape, on the return voyage, war had broken out between Great Britain and France ; and the calamities of St. Domingo compelled a number of its inhabitants to seek an asylum in the United States. The master of the vessel (who was addressed to merchants at the Cape, and only in case of their absence, was intrusted with the disposition of the cargo), undertook to cover, as American property, a considerable quantity of coffee and cash, belonging to two of the fugitive Frenchmen ; under a bargain, that they should pay to the owner of the ship a certain sum for passage-money, and for the freight of the coffee ; and to the master, for his own separate emolument, 50 half-johannes in hand, for covering the cash, with a contingent of 200 half-johannes more, on its safe arrival in the United States ; and a sum equal to the freight; for covering the coffee. The vessel was captured and carried into Jamaica, and both vessel and cargo libelled as prize, in the court of vice-admiralty. The master filed a claim for the ship and the plaintiff’s part of the cargo, and for freight on the *2951 covere^ *Pai’t of the property; but in his answers to the standing J interrogatories, he had sworn that the whole cargo belonged to the plaintiff, and that there were no papers on board, except such as he had delivered. On searching the vessel, however, the bills of lading, letters and other papers relative to the covered property, were found concealed; the whole cargo, including the master’s own adventure, was condemned ; and though the vessel was acquitted, upon further proof of American ownership, sent by the plaintiff from Philadelphia, it was expressly without freight, on account of the master’s fraud. When notice of the capture was received, the plaintiff abandoned to the underwriters, stating that the voyage was defeated, “and the cargo taken out of the hands of my agent,” the master.</p> <p>On two former trials of this cause, the argument turned entirely upon the question, whether the underwriters were responsible for a loss thus occasioned by the misconduct of the master, who was the agent of the owner? And the court were clearly of opinion, that by taking on board the property of Frenchmen, and covering it as the property of the plaintiff, the risk had been increased ; that the perjury of the master had also involved the neutral property, in the jeopardy of the belligerent masked property; and that, in fact, his misconduct, from beginning to end, had produced and justified a condemnation. Considering him, therefore, as he must, in law, be considered, in the light of the plaintiff’s agent, the court thought, that the plaintiff was not entitled to recover.</p> <p>on the barratry of the master: and urged, 1st. That although fraud is essential to constitute barratry ; yet, if a master of a vessel is guilty of a fraudulent act, with intent to benefit his owner, who is ignorant of the act, and neither authorized nor assented to it, it is a case of barratry, within the indemnity of a policy of insurance, (l Str. 581; 2 Ld. Raym. 1349; Cowp. 154; 1 T. R. 259; 3 Ibid. 278; 4 Ibid. 36; 6 Ibid. 379; 2 Dall. 137.) 2d. That the master acted, on the present occasion, as master ; and was guilty of a fraud, with a view to his own separate interest and emolument; which clearly amounted to barratry, though the ordinary freight and passage-money were secured for his owner. And if barratry is committed, the insurers are answerable, although the loss is not the direct and necessary consequence of the barratrous act. 3d. That the master was not the general agent and consignee of the plaintiff ; and when he undertook to cover the property, he manifestly acted as master, for his own benefit, and not as agent, for the benefit of his principal, upon a commission to be paid by the principal. 4th. That a warranty against a seizure for illicit trade, means a seizure in the trade, in which the owner employs the ship ; not a *seizure in a barra- r*oq« trous trade carried on by the master, without the owner’s knowledge *■ or consent. (3 T. R. 278.)</p> <p>1st. That the plaintiff was estopped from alleging barratry, after he had approved the conduct of the master (whom he expressly recognised as his agent, in the letter of abandonment), and endeavored, by further evidence sent from America, to maintain the claim in the court of vice-admiralty at Jamaica. 2d. That the master intended to benefit, and not to defraud, his owner, so no barratry was committed. 3d. That the master, being the consignee of ship and cargo, was not capable of committing barratry ; which furnishes a conclusive distinction between the present case, and the cases cited from the books. (1 Emerig. 370; 2 Marsh. 442; 2 Dall. 137-9; Park 91; 6 T. R. 379; 7 Ibid. 505.) And 4th. That the seizure, detention and condemnation of the cargo, was on account of an illicit and prohibited trade, by covering belligerent property in violation of the law of nations, and the good faith of neutrals ; as well as by a prohibited intercourse with a Spanish colony.</p>

Held: that if her conduct was an intonation to the public, and particularly to the parties, that she meant to waive her right to dower, her claim was barred. This was an action of dower, by the widow of David Desbler, against the tenant of the premises, tried at Easton, Northampton county, the-27th of June 1804.

<p> Certiora/ri. </p> <p>A certiorari to remove an indictment from a court of quarter sessions to a circuit court will be granted, on an application by the defendant, supported by his affidavit in the usual form, unless something is shown in relation to his character or conduct, to induce the supposition, that public justice is likely to be impaired by the removal. Smith, J.</p>

The point agito,ted upon the trial of this cause, turned on the validity of a mortgage given to the plaintiff by Murgatroyd, to secure to his wife, the amount of a legacy which had been bequeathed to her, by her grandmother. It appeared, that in the year 1784, Murgatroyd had entered into articles of agreement with trustees, by which he engaged to secure the legacy, in case he should become insolvent.

Held: that it was error. This was a certiorari to remove the proceedings from the mayor into this court; to which he made the following return under seal: The Mayor, Aldermen and Citizens (b) ) November 19, 1800. v. >• Huckstering. Elizabeth Mason. ) Amicable action.

Held: that the sentence of the French court, at St. Domingo, was conclusive evidence that the ship was not American. (a) Yeates, Justice, thought that enough was found, upon the special verdict, to give judgment for the defendant, on the paramount and controlling question of a violation of the acts of congress.

Held: that B. became a trustee for the creditors, from the time of receiving A.’s appropriation, and that the creditors thereupon acquired such an interest in the trust fund, as could not be divested or affected by the attachment. Scire Facias against John Welsh, Redman Byrne and the Bank of the United States, garnishees in a foreign attachment, issued by the plaintiff against M. Moore, of Charleston.

Capias. The defendant was a resident of Virginia, and had been subpoenaed as a witness in the case of Sims’s Lessee v. Irvine, which was marked for trial at the present term, but was continued on the 20th of April. He was arrested on the 26th of April; and the following day, Levy moved, that he should be discharged from the arrest and process, on account of the privilege of a witness, eundo, morando et redeundo. 4 Com. Dig. 475; 2 Str. 1094, 986; Vin. Abr., tit. Priv.

<p> Pwi'ol evidence. </p> <p>Parol evidence is admissible to explain, but not to alter, a written contract.</p> <p>In an action by the assignee of a bond, against the assignor, upon a written assignment, in genera! terms, parol testimony is not admissible, to show that the defendant had expressly guarantied the payment.</p>

The defendant, being indicted for a libel on the President, applied to the court, for a letter to be addressed by them, to several members of congress (congress being in session) requesting their attendance as witnesses on his behalf.1 In support of the application, a variety of similar cases, arising under the government of Pennsylvania, were referred to.

Replevin, for the ship Mount Vernon. The defendant claimed property, under a capture and condemnation as prize, in the French Court of Prizes, established at the city of St. Domingo, in the island of St. Domingo, under the circumstances stated in the reports of the trials, relative to the same ship. Murgatroyd v. Crawford, 3 Dall. 491; Duncanson v. McLure, ante, p. 308. After hearing the evidence—

This was qui tam action, in which the following declaration was filed: October Session, 1797. In the Circuit Court of the United States for the Pennsylvania District, of the Middle Circuit. District of Pennsylvania, ss.

These actions having been referred, the referees reported that there was due, in the first, from the defendant to the plaintiff, as surviving partner of Joseph Anthony & Co., a sum of $30,708.16 ; and that in the second, there was no cause of action.

This cause came before the court on the following case stated by the counsel, Gondy, for the plaintiff, and Ingersoll, for the defendant. “ On the 13th of October 17-96, William I. Vredenburgh, of the city of New Yorli, merchant, caused himself to be insured, at the city of New York, in a certain policy of insurance, which was subscribed by the plaintiff, in the sum of $14,500, upon any kind of goods and merchandise, laden or to be laden on board the brigantine Nancy,…

The defendant had been clerk of the Senate ; and in that character received $900, as a fund to defray the contingent expenses of the house, during several sessions. The committee of accounts called upon him for a settlement; but he declined exhibiting his vouchers, unless they would allow him a certain retrospective compensation, to which he contended that he was entitled, under an act passed on the 22d of April 1794.

A former ejectment, between the same parties, for the same land, had been non-prossedbut the costs of suit remained unpaid. The defendant’s counsel objected to the trial of the present ejectment, until the costs of the former were paid.

<p>In this case (which was an action for a libel), the defendant filed a plea to the jurisdiction of the court, on the ground, that he, as well as the plaintiff, was a citizen of Pennsylvania. Issue being joined on that fact, it was found by the jury, that the defendant was not a citizen; and thereupon, in consequence of a previous agreement, a venire issued to ascertain the quantum of damages, which the verdict settled at $600. After *the verdiet was given, it appeared, that one of the jurors was an alien ; and *- Dallas obtained a rule to show cause, why the verdict should not be set aside for that reason.</p> <p>On the argument in support of the rule, it was contended : 1st. That the trial by jury, entire, was anxiously adopted by the United States, as well as by this state ; including the right and causes of challenge as at common law, in civil and in criminal cases. 1 Dall. Laws, App. 55, § 9, 11; Ibid. 58, § 25; 3 Ibid. 36, § 9, 6; 4 vol. Acts Cong. p. 25, art. 8, 9; 1 Dall. Laws, 134, § 4; 2 Ibid. 802, § 2; 3 Ibid. 606, § 16; 2 Ibid. 264, § 9, 12, 3; 1 vol. Acts Cong. 113, § 30; Ibid. 68, § 29. 2d. That on principle, as well as on authority, alienage was a cause of challenge to a juror, before verdict. 3 Dall. Laws, Const. art. VIII.; 1 Acts Cong. Const. art. VI.; Ibid. 67, § 29; 1 Roll. Abr. 657; Co. Litt. 156 b; 3 Bl. Com. 362; Gilb. P. C. 94.; 1 Dall. 74. 3d. That if the cause of challenge was unknown, when the jury was qualified, it may be used to set aside the verdict, as for a mistrial. 3 Dall. 515; 11 Mod. 119; 2 Wood. 352; An. Reg. 1790, p. 46; 2 Ld. Raym. 1410; 1 Str. 640; 1 Acts Cong. 6, § 17; 2 Str. 1000, 593.</p> <p>in ■ opposition to the rule, contended, 1st, That, in Pennsylvania, alienage was not a cause of challenge to a juror. But 2d. That the objection was too late, after the juror was sworn, and the verdict was given.</p>

<p>Execution. — Constructive fraud.</p> <p>Goods, though chiefly household furniture, suffered to remain in the possession of the defendant, for more than a year after a levy, are liable to a subsequent execution.2</p>

Case. The defendant filed the following plea in abatement: “The said James Greenleaf, who is impleaded by the addition and description of a citizen of the state of Maryland, by Jared Ingersoll, his attorney, comes and defends,the force and injury, &c., and says, that he, long before the arrest in the present action, and at the same time, as well as twelve months preceding the said arrest, and continually afterwards, was, and yet is, a citizen of the state of Pennsylvania,…

Held: that the direction and return of the writ were fatally irregular. The general question, upon the constitutionality of the intrusion act (3 Dall.

Case stated for the opinion of the court. On the 1st of August 1804, judgment was entered, by confession, at the suit of Ewing v. Murray, in the common pleas of Philadelphia county ; in which the declaration was entitled of June term preceding. On the 3d of August 1804, judgment was entered, by confession, in the supreme court, against the same defendant, at the suit of Welsh, the present plaintiff; and the declaration was entitled as of March term preceding.

Error from the District Court of Pennsylvania. Upon the record, it appeared, that this was an action upon a bond, dated the 16th of November 1802, given by Willings & Francis and J. Miller, in the penal sum of $15,442, to secure the payment of $7720.41, being the amount of one-half of the duties payable on the cargo of the ship Missouri, on the 16th of May 1803.

Searight agreed, in February 1792, to sell to Calbraith & Co., a bill of exchange for 150,000 livres toumois, drawn upon Bourdieu, Chollet & Bourdieu, of London, payable in Paris, six months after sight; for which Calbraith & Co. agreed to pay at the rate of seventeen pence the livre (making in the whole, 10,625?. Pennsylvania currency), in their own notes, dated the 1st of May, and payable the 1st of July 1792.

<p> Jurisdiction. </p> <p>A colorable and collusive conveyance to the lessor of the plaintiff in ejectment, for the purpose of bringing the suit in a federal court, will not give it jurisdiction; and the court will, on motion, dismiss the suit. (b)</p> <p>This jurisdiction of a federal court is not primó, fade general, but special.</p>

By an act of the general assembly of Pennsylvania, passed on the 27th day of November 1779 (1 Dali. Laws, 622), the estates of the late proprietaries were vested in the commonwealth, subject to the following proviso : “ Sect. 8.

These were bills in equity, involving a great variety of facts, respecting the disposition of the estates of the late proprietary family : but the principal object of all of them, was submitted for the opinion of the court, on the following agreement : “ It is agreed, that these suits be submitted for the opinion of the court upon the following statement of facts, admitted by :!:all the parties, -* except the fact, that Anthony Butler, for his own accommodation, and without…

<p>The plaintiff bad effected, at the office of the defendants, three policies of insurance, dated the 12th of September 1803. The first on the schooner Diana, Nicholas, master, valued at $4500; the second, on the freight of the schooner, valued at $1500, and the third, on her cargo, valued at $4000 ; on a voyage, “at and from New York to Cape Franpois, with liberty to proceed to another port, should Cape Franpois be blockaded, and the vessel prevented entering that port, from that, or any other cause, and at and from thence, back to New York.” The order for the insurance declared, “that the assured is'not to abandon, if she cannot enter the Cape, from blockade or other cause, but liberty is given to proceed to some other port.”</p> <p>The schooner sailed from New York, on the 19th of September 1803, with instructions “ to proceed to Cape Frangois ; and if she could not enter, from blockade or other cause, to steer towards the Bite of Leogane, and enter either into Port-au-Prince, or some other port in the bite.” On the 8th of October, she was boarded, off the island of St. Domingo, by an officer from the Blanche, a British frigate, who sent her papers on board the Bellerophon, another British ship of war. On the next day, Captain Nicholas was taken on board the Bellerophon, and was informed, “ that the island of St. Domingo was blockaded by an English squadron, in consequence of which, no vessel would be permitted to enter any port or harbor in the said island;” and, to that effect, the register and papers of the schooner were indorsed. It appeared also from the master’s testimony, “ that he was told, he was not permitted to proceed on his intended voyage, nor to go to Cuba, but should proceed down to Kingston, Jamaica; that he was ordered to keep near the frigate Desire, until they had cleared the island of St. Domingo ; that on his arrival at Kingston, he was also told by the customhouse officers, that he could not *elear out for Cuba, whither he was [*418 still desirous of going ; and that, finally, the cargo was landed and sold at Kingston. The proceeds were then invested in another cargo, with which the ship returned to New York. On her arrival there, about the 17th of December 1803, the plaintiff abandoned the cargo and freight to the defendants, and claimed as for a total loss ; to recover which (deducting the proceeds of the cargo, and accounting for the profits on the investment homeward), the present action was instituted.</p> <p>On the trial of the cause, these grounds of defence were taken ; 1st. That upon the specific terms of the contract, the assured had not a right to abandon. The consequence of being turned aside by a blockading force was contemplated by the parties, but not insured against; for the voyage insured was to the Cape, or to another unblockaded port of Hispaniola. The whole island being blockaded, another port must be sought at the risk of the assured; the conduct of the British being neither capture, nor arrest; but simply precaution, to prevent a breach of blockade. 2d. That on general principles, it is not a case of abandonment for a total loss. The cargo was not prevented from arriving at its place of destination, by any risk insured against, acting upon the subject insured immediately, and not circuitously. There has been no capture, with a view to condemnation ; no arrest, for the purpose of an embargo, in the service of a foreign prince ; the cargo remains specifically the same ; the ship has returned ; wages have been paid, and of course, freight has been earned ; nothing, in short, has affected the voyage insured, but the act of preventing a breach of blockade, and the low state of the Kingston market; and for neither of these is the underwriter liable. 2 Marsh. 434; 2 Burr. 1198; 1 T. R. 187; 2 Marsh. 482; 2 Burr. 696; 3 Atk. 195; 2 Str. 849; 2 Marsh. 496; Doug. 219; 1 Esp. 237; 3 Bos. & Pul. 388; 5 Esp. 50; Mill. 305-6; 5 East 388.</p> <p>The answer, for the plaintiff, was, in general, that the voyage insured had been destroyed, by the superior force of a foreign power ; and that, independent of the means taken to prevent a breach of the blockade, the vessel had been constrained, against the express desire of the master, to proceed to a particular port, in exclusion of every other.</p>

Capias. On a rule to show cause why the defendant should not be discharged on common bail, the following facts were established by the plaintiff : That in the year 1787, the defendant gave his note for 55,000 livres, to a person of the name of Horguetand, payable in two instalments, for value received in 55 negroes. On the 8th of February 1787, the note was assigned to the plaintiffs, and several partial payments were afterwards indorsed upon it.

Covenant, on an open policy for $10,000, at a premium of ten per cent., upon goods on board the ship Hibberts, on a voyage at and from the Havana to New York. The case was this : The ship Hibberts and her cargo, the property of British subjects, were captured by a French privateer, and carried to the Havana.

This was an ejectment for four tracts of land, lying north and west of the Ohio and Allegheny rivers and Conewango creek, in Pennsylvania. The plaintiff’s title rested upon settlement rights, surveys and warrants. In 1793, the plaintiff was a surgeon in the army, in garrison at Fort Franklin.

Held: that the offence was not cognisable under the 8th section of the act of congress of the 30th April 1790. 1 This was an indictment for the murder of Richard Budden, containing three counts. 1st. Charging the murder to have been committed on the high seas. 2d. Charging it to have been committed in the haven of Cape Francois. 3d. Charging the mortal stroke to have been given on the high seas, and the death to have…

Covenant, on an open policy for $2500, at a premium of ten per cent., upon the brig Hound, on a voyage from Jamaica to New York.- The facts were these : the brig and cargo, belonging to the plaintiffs, sailed on a voyage from New York to Curajoa, and back again ; but, upon the return voyage, she was captured by a British cruiser, and carried into Jamaica, where vessel and cargo wore libelled and condemned, on the 31st of July 1804, for a breach of blockade.

The defendant, who had become bankrupt, was prosecuted by indictment, containing two counts, for perjury, in swearing before the commissioners, on the 20th day of September 1803, that he “ could not tell exactly the time, but believed it was the latter (end) of 1799, that he first owned the brig Abigail. He ceased to own her, he rather thought, in the year 1800,” when, in truth and in fact, he never did own her, but had covered the property for an alien under Ms name.

Held: that they were sufficient for the court to enter judgment upon. A covenant that one is seised of an indefeasible estate in fee, may be broken, without an eviction. A special warranty in a deed, has not the effect of controlling a precedent general covenant. The covenantee of title cannot recover the value of improvements made by him, after his purchase from the covenantor. 1 Covenant.

The following case was stated for the opinion of the court: “ Case. On the 24th of September 1799, the defendant, Samuel Gatliff, underwrote $750 upon a policy of insurance on the schooner Little Will, belonging to John Dutilh and Thomas Lillibridge, for whom the plaintiff was ■agent, on a voyage at and from Philadelphia to Havana.

<p> Privilege of suitor. </p> <p>A citizen of another state, who, when in attendance on court as a suitor, has been subpoenaed aa a witness in another case, is privileged from an arrest in execution, issuing from a state court, while at his lodgings ; and the sheriff will be indemnified, by an order of discharge of a court of competent jurisdiction.</p>

Case. On the trial of this cause, the following facts appeared: The plaintiffs were merchants of London ; and in March 1796, shipped and consigned to the defendant certain goods, invoiced at 270?. 14s. 8d. sterling, accompanied with a letter, stating that “ these goods were shipped by order of Mr. J. B., and for his account; and he was to remit ns the amount, on his arrival at Philadelphia: but' since they were shipped, some circumstances have occurred, which have created…

This was an ejectment brought for a tract of land, lying north and west of the rivers Ohio and Allegheny and Conewango creek. The lessor of the plaintiff made title under the Holland Company, to whom a patent was issued, upon a warrant and survey. The defendant claimed as an actual settler, under the act of the 3d of April 1792.

<p> Insv/ranoe of freight. </p> <p>Where a vessel sails upon a lawful voyage, but on her arrival at the port of destination, finds the same in the possession of another foreign power, and is prohibited from landing her cargo, the freight is earned; and there can be no recovery against the insurers thereof.</p>

Case, on a policy of insurance, upon the freight of the ship Richmond, for a voyage at and from Philadelphia to Batavia, and thence back again.

This cause was argued in March term last, on the following case stated for the opinion of the court. (a) Case.

<p>Prize jurisdiction. — Effect of verdict.</p> <p>In case of a capture on a navigable water, the question of prize or no prize, is within the jurisdiction of the admiralty, though the property seized belong to a citizen of the state in which the capture was made.</p> <p>Upon a bill of exceptions to another point, and after a general verdict, the court is not bound to consider a judgment by default in replevin, as an affirmance of property.</p>

This was a prosecution, on the 2d section of the act of congress, of the 26th of March 1804 (2 U. S. Stat. 290), which is expressed in these words : “ That if any person shall, on the high seas, wilfully and corruptly cast away, burn or otherwise destroy, any ship or vessel of which he is owner, in part or in whole, or in anywise direct or procure .the same to be done, with intent or design to prejudice any person or persons that hath underwritten, or shall underwrite, any…

Held: that W. took an estate in fee-simple, subject to an executory devise to E. An action of trespass of ejectment was brought by the respondent against the appellants, in the common pleas of Sussex, for a tract of land situated in. that county. The action was removed into the supreme court, by certiorari ; and upon the trial there, the jury found a special verdict.

Held: 1st. That the tender was not good, but that the partial payments ought to be allowed, according to the indorsements. 2d. That as to the balance due, the loss from the depreciated currency ought to be divided between the parties. This was an appeal from New Hampshire, heard before a Committee of the Privy Council (Lord Mansfield being one of them), on the 10th of July 1760.

Held: that “ the states retain all pre-existing authorities which may not be exclusively delegated to the federal head ; and that this exclusive delegation can only exist in one of three ways : 1. Where an authority is, in *433 express terms, granted to the Union : 2. Or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the states : 3.

This action was instituted in tbe Common Pleas of Philadelphia county, at September term 1806; and a habeas corpus was taken out by the defendants, on the 1st of December following, to remove it into the supreme court.

Held: that the plaintiff is entitled to recover, according to the value at the time of the action: In New-York , that he can only recover according to the value at the time of the contract.