Volume 5 — Binney's Pennsylvania Reports

THIS was an appeal from a decree of the Orphan~s Court for the county of Dauphin. The case, as it appeared from the record, aud a variet~ of depositions that were taken in this court, was thus: Da niel Elliot the father of both parties, died intestate prior t the year 1794, leaving issue ~o1m the appellee, West hi~ second son, Mary, who afterwards married 7ames Hamil ton, and William the youngest son, the appellant.

<p>IN ERROR.</p> <p>THIS was a writ of error to the Common Pleas of Dauphin county.</p> <p>The defendant in error, who was the plaintiff below, married Elizabeth the daughter of William Robertson, to whom the bequest hereafter stated was made by her father; and upon her death, he took out letters of administration, and brought account render against Martin and Robertson, the executors of the "testator, to recover the legacy, agreably to the 1st section of the act of the 21st of March 1772. 1 St. Laws 631.</p> <p>The summons was returned served as to Martin, and nihil habet as to Robertson; and the Narr in the common way recited the return, and then proceeded to count against Martin as bailiff and receiver for the said Elizabeth, of the real and personal estate of William Robertson, and that he received of the money of that estate 3001. of which he had refused to render an account, “ to the damage of the said John Smith? &c. Elder appeared and pleaded ne unques bailiff and receiver, and afterwards “ fully accounted,” upon which issues were joined; and upon the trial, a verdict was taken for the plaintiff for a certain sum, (a) subject to the opinion of the court upon the will of the said William Robertson.</p> <p>The material parts of that will were as follows. The testator, after giving in very inaccurate language, a number of legacies to his different children, proceeded in these terms; “ Item. I will that any of my legatees die without a natural “ heir, that my bequeathments return into my family to “ whom they please; and further I also allow my personal “estate either by vendue or otherwise, and then what ready “ money is made, and likewise what bonds or notes are taken “ or due, shall be equally divided among my legatees by “equal proportion at the discretion of my executors. And “ further I allow that my estate personal or real shall over- “ mount these my bequeathments, that then the overplus “ shall fall to my four sons, whom I now name, William, “ David, and Joseph Robertson two thirds. Item. I will that “ one third of the overplus to my three daughters, Margaret “ Carnahan, and Elizabeth Smith, and Mary Crasher, her “part of that third to her children.” The question was whether the last devise was in joint-tenancy or in common; and the judgment of the Common Pleas was, that it was in "common.</p> <p>contended, 1. That it was a joint-tenancy; for which they cited 2 Black. Com. 181, Lady Shore v. Billingsly (a), Webster v. Webster, (b), Cray v. Willis (c), Willing v. Baine (d), The Earl of Sussex v. Temple (e), Aylor v. Chep (f). 2. That the Narr was defective in not stating a sufficient cause ef action, since an executor could not be bailiff or receiver, especially a receiver for A of the estate of B-, unless the case was brought within the act of assembly, which it was not here. That it was also defective in concluding to the damage of the plaintiff individually, when the suit was representative; and that although the writ was against both executors, and the appearance general, yet the action was carried on against one only, contrary to ’the principle of MHullongh v. Guetner (g).</p> <p>argued 1. That the devise in question was a tenancy in common; for which he cited Addison’s Rep. 327, Sheppard v. Gibbons (h), 2 Cruise 504, 505. 2. That the cause of action was sufficiently stated to bring the case within the act of assembly; — that in an action by an executor, the narr may conclude to his damage individually, Lill. Entr. 83, 84; and that the course of the action had been agreeable to the established practice, of proceeding against one defendant, where the other had not been found, and where, after an appearance, there had been a narr and plea only as to the defendant who was summoned.</p>

<p>A writ of error the judgment of the Quarter Sessions upon an appeal by supervisors of roads from a summary conviction by a justice of the peace; the proceedings in such cases not being according to the course of the common law.</p> <p>The rule is, that where a new jurisdiction is created by statute, and the court or judge exercising it proceeds in a summary method, or in a new course different from the common law, a writ of error does not lie, but a certiorari,</p>

<p>IN ERROR.</p> <p>'HIS was a writ of error to the Common Pleas of Dauphin county. In that court it was a proceeding by certiorari to a justice of the peace/to remove the record in ease in which Dubs was plaintiff and Buckmyer .defendant, ' '</p> <p>By the record it appeared that a summons was issued by the magistrate on the 4th of September 1804, returnable the 11th, to answer Dubs of a plea of demand for service rendered to Buckmyer by the plaintiffs son, under 100 dollars. The entry of the subsequent proceedings was thus — “ 5th “ September, summons returned. Parties appear. Defendant “ refuses to leave it to men, and after having examined “ the cause, judgment against defendant for 50 dollars.” the margin of the entry “ Evidence. Henry Sneevely, Frederick Heefinger, sworn.” '</p> <p>The errors assigned were 1. That the justice gave judgsnent without any legal proof to warrant him. 2. That the judgment had no date. 3. That if dated, it was given on day and at a time, when the justice had no authority to it. 4. That no cause of action appeared on the record.</p> <p>after citing Sharpe v. Thatcher (a), and Vansciver v. Bolton (b), offered the depositions of Sneevely and Heefinger, taken since the decision in the Common Pleas, to shew what passed before the magistrate.</p> <p>objected to the evidence, and urged that the transcript of the record shewed that witnesses had been sworn and the cause examined. The decision must be presumed to have been well founded in fact.</p> <p>Tilghman C. J. This is a writ of error to the Court of Common Pleas. We are to decide on the record, and can hear nothing out of it. The cases cited from Dallas’s Reports, do not go the length that is now contended for. They only shew that this court, having issued a certiorari, has, to prevent injustice, made inquiry into the evidence given before the magistrate. This was going full as far, in my opinion, as any principle of law will warrant; and I think it would be inconvenient and illegal to go further. We have never received parol evidence upon a writ of error to the Common Pleas. I am therefore against receiving the evidence now offered.</p> <p>Yeates J. I am of the same opinion.</p> <p>The depositions were accordingly rejected. Elder then proceeded to the second exception. The judgment should bear a date, because, without it, neither the stay of execution, nor the time for entering an appeal, can be ascertained. Besides, a justice’s judgment is within the second section of the statute of frauds. 1 Smith’s Laws 390. 3. The justice must strictly pursue his power. He could not, until specially authorised by statute, give judgment by warrant of attorney, but must have proceeded by capias or summons. Alberty v. Dawson (a). Neither can he give judgment before the day prescribed by the warrant. Consent cannot give jurisdiction. If any date can be assigned to the judgment, it is the 5th of September. The 4th exception was not pressed.</p> <p>answered to the second exception, that the judgment was evidently rendered on the fifth, that date being annexed to the appearance, and then without any interval of time, the trial and judgment. 3. The justice had authority to give judgment then, by the consent of the parties. The warrant and the demand gave him jurisdiction, which is all that concerns the public; the appearance of the parties justified his giving judgment immediately, that being a matter which concerned them alone. 4. The cause of action was services rendered by the plaintiff through his son, to the defendant.</p>

IN ERROR. THIS was a writ of error to the Common Pleas of York . COUnty.

<p>IN ERROR.</p> <p>ERROR to the Common Pleas of Dauphin county.</p> <p>Upon the trial of this cause, which was an action by Hawk and wife for slanderous words spoken of Elizabeth the wife of Hawk, dum sola, by Catharine the wife of Harman, (whether sole or covert at the time, the narr did not state) the Common Pleas reserved the point, whether a husband is liable for slanderous words spoken by his wife before marriage. The verdict was for the plaintiff, forty shillings damages, and six cents costs; and the court, after argument upon the reserved point, set aside the verdict, and gave judgment of nonsuit, upon which this writ of error was brought.</p>

<p>A venire facias de novo cannot be awarded by this court, if the cause below was tried by arbitrators, and not by jury. Nor can it be awarded, where, to enable the plaintiff to recover at all, he must state a cause of action different from that which has been submitted to the jury.</p> <p>The object of a venire de novo is to submit tile same cause of action to another jury, an error which took place upon a' former trial being corrected. As where there has been irregularity in choosing or returning the jury, — error in rejecting competent, or admitting incompetent evidence, — error in the court’s opinion upon the law arising from the evidence, — entire damages assessed upon several counts, some of which are bad, — and the like.</p> <p>The act of the 21st of March 1806, does not extend so far as to authorise the court to permit a declaration to be withdrawn, and one for a different cause of action to be substituted. A declaration in malicious prosecution cannot be substituted for one in slander; nor can a declaration for a slander of husband and wife, be withdrawn/ iind one for glandes: of the wife, introduced; although the writ might justify either.</p>

<p>IN ERROR.</p> <p>IN error to the Common Pleas of Dauphin, the case was thus:</p> <p>Isabella Wallace and Richard Fulton, administrators of Richard-Wallace, on the 30th of September 1805, obtained judgment before a justice of the peace, against Berryhill and Murray. Before the stay of execution had expired, Fulton died, and Isabella Wallace intermarried with Alexander Wells. The justice then issued a scire facias, in the names Wells and wife, the now defendants in error; and upon the return of that writ, gave judgment for the amount ^ original judgment and costs, and interest upon them, This judgment was removed by certiorari to the Common Pleas, where after its affirmance, the defendants in error released all the interest beyond that which was due on the original judgment,</p> <p>contended for the reversal of the judgment upon four grounds. 1. That a justice of the Peace iuid no power under the “ hundred dollar act,” of the 18th of March 1804, to issue a scire facias, except against sptiGial bail; that being expressly stated, and no other. 2. That the writ of scire facias, if within his power in a proprty case? was not so here, because execution might have issued without new parties; for which he cited Withers v. Harris (a), and Brace v. Pennoyer (b), where it was held, that if one of two plaintiffs dies after judgment, the survivor may have execution; and Doyley v. White (a), which decided that execution may go against a woman who marries after judgment, without altering her maiden name, or joining the husband; the converse of which was the present case, and therefore the same rule applicable. 3. That the judgment on the scire facias should have been, that the plaintiffs have execution of the original judgment, without including interest. That could be given only in debt upon the first judgment. The scirefacias is merely to shew cause, why execution should not go upon that judgment. 4. That interest had been added upon the costs, as well as the amount recovered; and that the defendants in error could not release after affirmance below. But this point was not pressed.</p> <p>answered, 1. That a scire facias was incident to the power of issuing execution, if it became necessary to constitute new parties, otherwise the death or marriage of a party might defeat the judgment. It was implied in the authority to issue execution. 2. That it became necessary here to constitute new parties, because not only one of the» plaintiffs died, but the other had married. Her husband must be introduced, because the wife could not alone sue execution. 2 Att. & Plead, Treas. 381. 3. That interest was an incident to every judgment in Pennsylvania:, by virtue of the act of 1700, 1 Smith’s Laws 7.; and therefore the judgment in effect would have carried interest, though it had not been named. It is not error to spread upon the record what is the legal effect of the judgment, though it may be contrary to form. 4; The excess of interest, was released; and it would have been competent to the defendants in error to have cured that error by a release even in this court, as has been many times decided.</p>

<p>Arbitrators have no authority to award a nonsuit. If the plaintiff fails to attend, the proper award is that he has no cause of action.</p>

<p>Where an act of p^ates'in Tcer" way, afine upon persons'1 convicted of a -ls eiT01. ap^different ^ay.</p> <p>An indictment for erecting &c. a mound, made of logs river to the great offender ance'of the fi*Kfry and the^^ndlimm^aid fiver, and to the citizens esc. is act of the 9th of March, 1771 prohibits the erection &c. of any wear, rack, basket, dam, pound, or other device or obstruction t»hau whereby the fish may be obstructed from, going up said river isfc. and therefore a judgment that the fine shall be paid to the commonwealth, instead of going to the informer and commissioners in that section mentioned, is erroneous.</p> <p>If the record of the court below set forth, that before a bill of indictment was submitted to tile grand jury, the" sheriff' had returned the precept to him directed, in all things duly executed, and so in like manner as to the petit jury, by whom tile prisoner was tried, it it sufficient, without stating the precept and return at large; nor can it be alleged for error, that no precept was issued.</p>

<p>IN ERROR.</p> <p>THE plaintiff in error, gave his bond for the payment - , Yr . , r , of 400/. to Kapp, with a warrant of attorney, under which judgment was confessed for 800l. the penalty. The judgment was revived by an amicable sare jactas, and the lands of the obligor sold to Peter Gloninger, one of his creditors. lhe money levied was brought into court, and, cording to the record, the Common Pleas of Lancaster county, upon the application and affidavit of Gloninger and Moore, the creditors of Numan, were “ let in to a defence, as to the , r* t . 77 i • i i i r “ quantum oj this debt, to be tried on the plea of payment “ and non solvit,” the judgment and money levied to remain as a security until the determination. The issue was accordingly tried in April 1809, when it was proved, that the bond was given to Kapp for a larger sum than Numan really owed him, to protect the property of Numan from one Leins, to whom he was also indebted; and the president of the district charged the jury, among other points which are immaterial, that in a case of fraud, of this sort, if it appears that there is money due to the plaintiff, the jury may give such sum as appears to be due, although the bond was taken for too much, and for the purpose of defrauding creditors. To this the creditors excepted, and the jury found a verdict for Kapp 240l. 1s. 3d.</p> <p>argued, that this opinion was without warrant in the law, as the bond, being given to defraud creditors, was, under the statute of 13 Eliz. c. S. sec. 2, “ clearly and utterly void, frustrate and of none effect,” as against them. 3 Bac. 307. Fraud. C., Cadogan v. Kennett (a), Chapman v. Emery (b), Tonkins v. Ennis (c), Pow. on Mort. 296., Sugden 433., Roberts on Fraud. Con. 591—596. A fraudulent conveyance is as no conveyance against the persons intended to be defrauded. Sands v. Codwise (d). “ The statute is like a tyrant; where he comes he makes all void. But the common law is like a nursing father, makes void that part where the fault is, and preserves the rest.” Maleverer v. Redshaw (e). This is not the case of an objection raised by the obligor, but by persons who claim paramount. The plea of payment went to the whole matter, and the entry as to the quantum is overruled by it. At all events the opinion of the judge in his charge was wrong.</p> <p>If the direction of the court was right on the issue joined, or not wrong on the issue joined, this court will not reverse the judgment. Now the issue joined, though it might go to the whole, yet by the order of the court, and at the instance of the creditors, went but to part, the excess beyond what was due. The creditors had a discretion to ask what they pleased; they asked and obtained an issue to try the quantum under a certain plea. But certainly the judge was not wrong as to the issue; for the proposition he stated was not pertinent to the issue trying,but to a different issue. Besides, here was a judgment, execution and sale under the bond. After going thus far, creditors come in merely under the equity powers of the court; and therefore, whatever may be the effect of Üjjí'e statute generally, they could not be permitted to come in, but upon the terms of allowing what was due. Maxims of Eq. 3, 4., 1 Fonbl. 22, 23. 128., Townsend v. Lowfield (a), Herne v. Meeres (b). The judge therefore was not wrong.</p>

IN ERROR. THIS was an ejectment, brought by Morris in the Common Pleas of Berks, in April 1808. - AE'he plaintiff claimed under a warrant of the 29th of May i , , 1742, to ¿tamper Bland, Elzas Bland, and John Bland, for 600 acres, upon which a survey of 29 acres 40 perches, the . , . ,, , . , r _ , land in dispute, was made on the 81st of December 1805. .

<p>THIS was.a certiorari £o the Sessions of Berks county, to bring up the proceedings of that court upon an order of two justices, removing Elizabeth Ackerman, a pauper, from the township of Cumree to the borough of Reading.</p> <p>From the evidence before the Sessions, the case was thus:</p> <p>The pauper, whose name before her marriage was Hendenbrooke, was imported directly from Europe into this state, and was bound on the 22d of March 1794, bv indenture . - , . . _ - ' „ , before the register of German passengers,- to serve John Lezvis Barde and his assigns for two years and nine months, in consideration of 20/. 2s. Od. paid for her freight from Amsterdam. She served with Barde in the township of Robeson . forty-seven days, and on the 7th of May 1794 was by him assigned to William Whitman of Robeson, who on the 8th t. , • -, , Trr, . ' May 1794 assigned her to John Whitman of Reading. 1 hese assignments were by indorsement upon the indenture, not finder seal, and not made in presence of a justice of the peace.</p> <p>She served with Whitman in the borough of Reading, until she was free. She was then married to Ackerman, and lived in the township of Cumree, where she was likely to become chargeable. Her husband had abandoned her. The order of two justices removing her to Reading, as the place where she was last legally settled before her marriage, was upon appeal to the Quarter Sessions, confirmed.</p> <p>1. That no settlement was obtained by the service in Reading, because it was not with the original master, but with his assignee; and the act of the 9th of March 1771, sec. 18, does not permit a settlement to be gained by service with the assignee, except where there has been a service for the space of sixty days, with the master. It enacts that “ every indented servant, legally and directly imported from Europe “ into this province, shall obtain a legal settlement in the “ city, borough, &c. in which such servant shall first serve “with his master or mistress the space of sixty days; and if “ afterxvards such servant shall duly serve in any other “ place for the space of twelve months, such servant shall “ obtain a legal settlement in the city &c. where such ser- “ vice was last performed either with his or her first master “ or mistress, or on an assignment." 1 Smith's Laws 332. In this case the service with the master was but forty-seven days.</p> <p>2. That the assignment was not according to law, and therefore there was no legal assignee, with whom the service could take place. The indenture was under seal; and the assignment without seal passed nothing. By the act of 1700, 1 Smith's Laws 10, no servant can be assigned over to another in this slate but in the presence of one justice of the peace of the county. The servant may avoid a different assignment. Commonwealth v. Flanegan (a). Not only so, the law contains a prohibition and inflicts a penalty, which makes the assignment void, and prevents this court from giving it effect in anyway. 5 Vin. 507. C.pl. 15., Mitchell v. Smith (b).</p> <p>3. The pauper is married. Her husband’s settlement is her settlement. The order should have adjudged that he had no known legal settlement. It only states that she was" married, and had a place of legal settlement before marriage.</p> <p>1. That the original service with an assignee, was as much within the spirit of the act of 1771, as a service in the second instance. The law did not regard the party served, but the party serving, and the township to whom the benefit was rendered. The service is also within the words, for an assignee is a master, and where he first serves with him, is where he first serves with his master. But supposing the law otherwise, the service to .the assignee in Reading with the consent- of the master in Robeson, was a service with the master, and gained a settlement in Reading. A person may serve his master in another place. St. Olaves v. All Hallows (a), St. Luke's v. St Leonard's (b).</p> <p>2. That the assignment if void, leaves the service in Reading upon the footing of a service with the consent of the first master, and is already noticed. But in fact, the act of 1700 was made for the servant’s benefit, not to prevent him from gaining a settlement where he has served. He may avoid the assignment; but if he does not, surely the township where he has duly served, and whom he has benefited, cannot say he was not so assigned as to acquire a settlement. The point has already been decided under a parallel statute, the 5th Eliz. St. Nicholas v. St. Peter's (c).</p> <p>3. The court will not intend that the husband had any known legal settlement; and of course that objection fails. St. Michaels v. Nunny (d), is in point. Besides, the act of the 20th of March 1810, sec. 4, directs that upon appeals from the determination or order of two justices to the Common Pleas or Sessions, the cause is to be decided on its facts and merits only, without regard to deficiency in form or substance.</p> <p>In reply, it was said, that the service with the assignee was not a service with the master, in Pennsylvania, so as to gain a settlement. The English cases were distinguishable, because there the last forty days service gives a settlement in the place where the service is performed; but here, the settlement is where the master lives.</p> <p>As to the defect in form being no objection, it was said that the clause in the act of the 20th of March 1810, the hundred dollar law, did not apply to orders of removal in pauper cases.</p>

T the last term of this Court for the Lancaster, district, a rule was granted upon the defendant to shew cause on Monday the 27th of May, why a. mandamus should not be issued, “ commanding him to prepare and deliver patents to Robert E. Griffith, who survived Philip Nicklin, (which said Robert and Philip, in the life time of the said Philip, were assignees of Joseph Boone, who was assignee of John Nicholson) for sixty-eight tracts of land, situate in what was formerly called…

<p>Declarations by the grantor at the time of executing a deed, that he only did. it ^{hatthe^eo’ple could mt come at dence, if made the absence of le'ifs^groum^is previously laid, Justin the grantee, or his participation in the fraud.</p> <p>A deed made fraudto defeat and defraud creditors, is void as against creditors; but not so against the grantor himself, or his children.</p>

IN ERROR. THIS cause came before the court upon a case which stated, that Andrew Freyberger, by his will dated „ ’ of October 1803, alter devising a plantation to his son John, during the life of the testator’s wife, made the bequest, — “ and to my two sons John and Jacob aforesaid, “ I do further give and bequeath 100/. each in cash.” He then gave to the three sons of his daughter Magdalen, 80/. each, to be paid to them bv his executors in the year 1816, ’ or . ' . . , , J…

<p>IN ERROR.</p> <p>THIS was a writ of error to the Common Pleas oí Northumberland,, where judgment had been rendered ’ j e _ in favour of the lessee of Grant, the plaintiff below, upon the following special verdict:</p> <p>“ The jury find, that a warrant issued on the 7th of June 1773, to William M'Murray and George Grant, for acres of land on the north side of Penn’s creek above the Laurelrun, near to, or including the waters of a large run which Thomas Paschall is on, in Buffaloe township, Northumberland county. That a survey of the land in question was made on the 24th of August 1773. That George Grant died intestate in 1779, and without issue, leaving Thomas the lessor of the plaintiff his heir at law, and William 3PMurray his survivor. That the purchase money paid in equal portions, by the said George Grant and WilHam Af‘Murray. That the defendants are in possession, But in whom the right is, the jury are ignorant, and pray the opinion of the court thereon. If the court should be °f opinion, that the right to the whole did not survive, then they find for the plaintiff for one equal undivided moiety, with six cents damages, &c.; but if the court should be of opinion, that William M'Murray took the whole by survivorship, then they find for the defendants.”</p>

<p>THIS was an ejectment for one messuage, one barn, one garden, twenty acres of arable land, ten acres of meadow? and seventy acres of woodland, in the county of Centre.</p> <p>The cause was tried before Yeates J. at a Circuit Court in . J Beliefontm. June 1809, when the following case was in evidence.</p> <p>In 1787, one Daniel Turner made a slight improvement, and obtained a private survey of between 800 and 900 acres, including the premises in question. He married the sister of the defendant Welsh; and ««consideration of the latter having paid about 20/. for him, he' agreed to let Welsh have 50 acres of land on the west side of Spring creek, part of his improvement, and put him in possession where there had been a deadening of 12 or 15 acres made by Turner. On the 14th of September 1787, Turner obtained a warrant for 200 acres, including his improvement, on the great 7 °, r 7 ° of Spring creek, on which a survey was made on the 18th of November 1802, of 234 acres 27 perches. Previous to this, Welsh worked the lands, erected a house and still house, carried on the business of a distillery, and had resided there ever since, having cleared about 15 acres of land. The survey of 1802 was made in strict conformity to the J \ J 7 and included the fifty acres$ but it was not intended that Welsh should have any right in the warrant, Turner meaning at the time to take out other warrants to secure his claim by improvement. Turner after the warrant, erected a forge, a grist mill and saw mill, with buildings for their accommodation, and for some time carried on business in good credit. On the 5th of February 1798, Billington, the lessor of the plaintiff, obtained a judgment against him for 1785/. 85. 8d.-, and in April following one Charles Drum obtained another judgment for 50/. Upon this judgment a fi. fa. issued, and was returned u levied on 300 acres more or less in Patton township, with a forge, grist, and saw mill thereon.” A pluries' vend, exponas issued returnable to August 1801, upon which the premises were struck off to a purchaser, who did not comply with the conditions of sale, and the sale was therefore set aside. A second pluries venditioni was awarded to November 1801, when the lands were bought for the lessor of the plaintiff, to whom a conveyance was made in December following. The defendant’s claim involved a control over the water of the creek, which might be of serious detriment to the iron works.</p> <p>Upon the trial, it was argued .for the defendant, that he had a good equitable estate as against Turner, and all the world, having notice; and that his actual possession was constructive notice to the lessor of the plaintiff, who was by this circumstance put upon inquiry into the title.</p> <p>On the other hand it was said, that the omission of Welsh to give actual notice of his title, when from his connection with Turner, his residence on the land, and the general notoriety of executions and public .sales, he must have known of the proceeding against the land as Turner's property, was a fraud; and that as to the possession, it was not of that distinct and separate kind that would constitute notice of a distinct title, being in the first place unascertained as to limits and boundary by a survey, and in the’ next place, combined with a possession by Turner, and his workmen, whose different buildings would with those of the defendant strike the observer as one establishment.</p> <p>His honour charged the jury, that if the defendant really had notice of the execution and sale, it was a fraud to omit warning all persons against purchasing the part claimed by himself. That as to notice from possession, ap adverse unmixed possession was certainly constructive notice to a purchaser, as in the case of a sale by a trustee out of possession, But here the debtor was in possession also; and though this was not so strong as the case of the lord of a manor, and his cottagers, yet the nature of Turner’s property required houses &c. for the accommodation of colliers, workmen, and the like; and a possession under such circumstances, would not be such notice as in a common case it might be. As however no cases exactly similar had been shewn, his honour recommended a verdict to be taken for the plaintiff, subject to the further consideration of the question, as a point reserved; but the defendant’s counsel not assenting to this, the Court instructed the jury to find for the plaintiff; and after the verdict was so found, it was agreed by the counsel on both sides, that the case should be taken into this Court upon the judge’s notes, and here argued as fully as it could be in the circuit court, as upon a motion for a new trial.</p>

in ERROR. rr^jjig case came before the court upon a bill of exceptions to the Common Pleas of Centre county, who reiected evidence offered by the defendant below, under these J . circumstances: John Moore, the lessor of the plaintiff, and Gordon the , . defendant, had each commenced an improvement, and each ^ ta^*nS 300 ®cres, including his improvement, might em-brace the land in dispute. Moore, who was an unmarried man’ Luilt a small house in the autumn of 1803.

THIS was an appeal by the surviving administrator of Engelhart Brown, from a decree of the Orphan’s Court of Mifflin county, In a supplemental account filed by the administrators, they charged the estate of their intestate, with various sums expended for costs, fees ol counsel &c. m several suits brought against them by persons claiming as next of kin to Engelhart Brown.

IN ERROR. ^T^HIS was a writ of error to the Common Pleas oí North-1 ' , , , A umber land county. . c . ,, It was an ejectment for sixty-eight acres or land, withm tjje purchase of 1768, to which the plaintiff claimed title under a lottery application of the 3d of April 1769, No. 657, jn t¡le name of Philip Harding, for 300 acres of land upon r , r , , . C/nhsquaque creek, about three miles from the mouth, m t^e forks 0f Susquehanna.

<p>Before the re- , ■was obliged to record his deeds. The purchaser was to look to the title at his peril; and notwithstanding he obtained a patent from the commonwealth, before notice that the warrant and survey, or a part of it, had been conveyed to a third person, yet this not avoid the title1 *ielson,s</p> <p>The principies of the law olEnqland, must not be applied in their full extent to the case of a legal estate acquired in this by patent. The question here is generally, not. who has got the patent, but who on principles of law and equity ought to have bad it, when it issued, it is truethathe who obtains a patent, shall avoid all titles by warrant and survey of which he has no notice; for a warrant and survey are in most respects considered as a legal estate, except as against the commonwealth. They are subject to the same laws of descent, devise and conveyance as the legal estate. They are subject to dower and curtesy; and an ejectment may be maintained on them.</p> <p>The proceedings before the Supreme Court, under the act of the 6th of March 1778, by a person claiming an interest in an estate alleged to be forfeited, though conclusive against all persons claiming under the commonwealth by virtue of the attainder, are not so against ’ persons claiming paramount the attainder.</p>

IN ERROR. THIS was an ejectment for lands in Mifflin county, the J. title to which on both sides is state-d in the first volume of these Reports, p. 247. Upon the trial of the cause, the opinion of the court r ; was requested upon various points, of which two only are material. 1.

<p>The sureties of a sheriff are liable in damages for the sheriff’s trespass, in seizing and selling the goods of B, under an execution against A; but a judgment in trover against the sheriff alone, for the same cause, is not binding upon the question of t damages in a suit against the sheriff and sure-</p> <p>A judgment in trover against neither an ex-tingnishment of his official security, nor a bar to a suit against bis sureties. It is but one of several remedies, which the injured party may use successively, until he obtains satisfaction.</p>

IN ERROR. IN error to the Common Pleas of Crawford, the case was as follows: It was assumpsit to December term 1807, by the defendant in error, who was plaintiff below, to recover from Meade the sum of 572 dollars and interest, due to the plaintiff by one Wilson, for whom the defendant had made himself responsible. Pleas non assumpsit, and non assumpsit infra sex anuos.

<p>Where a judgment is reversed, this Court gives no costs; and if levied by execution, will order the different officers to refund them.</p>

<p>A made appliestion to the secretaryofthe land office for a tract of land particularly described, lying north and west of the Ohio &c. On the 3d of April 1792, a warrant issued, which by misfleetwaífiúed up with lands On fht-ToTh April 1792, the deputy surveyor who^perceiving-the mistake, did not enter the warrant in his book according to its description, bat according to the description in the application, and surveyed it on the 29th of August following. Prior to the survey, but subsequent to the 10th of April, B wide a bona fide actual settlement upon the same land. Meld, that the entry made by the deputy surveyor had no effect against third per sons, and that B was entitled to recover.</p>

IN ERROR. THIS was an ejectment in the Common Pleas of Beaver county, for 200 acres of land on the waters of Big Beaver. The plaintiff claimed under an improvement and settlement, commenced by one Jordan; but it did not appear that any survey had ever been made tor Jordan, or any one claiming under him.

<p>With certain exceptions as to persons in office, special damage &c., words are not actionable unless they contain a plain imputation of some crime liable to And unless the words and obvious meaning, impute a crime, no inuendo can help them.</p> <p>Hence to say of a man, that “he was an way with tionable, be-trust, rather than a felony, And if it might be considered to impute a felony in a common case, yet the jury having found that the Hence to say of a man, that “ he was an “ United Irish- “ man, and got “ the money of the United “ Irishmen into “ his hands, and were an association formed in Ireland for the purpose of overturning the government, it felony to dispossess them of their funds.</p>

<p>in ERROR.</p> <p>THIS was a writ of error to the Common Pleas of Somerset county, in a proceeding between landlord and tenant, removed thither by certiorari, and the judgment in favour of the landlord, the defendant in error, affirmed.</p> <p>There were nine exceptions taken to the proceedings, by the plaintiff in error, only one of which is material: “ That “ it appeared from the face of the proceedings, that the lease “ alleged in Sutton’s bill of complaint, was not a term for one “ or more years, or at will, rendering a certain rent, in which “ cases alone the justices could have jurisdiction, and that “ therefore the proceedings were coram non judice.” The . lease was of a messuage &c. from the 10th of August 1803 to the 1st of April 1804, paying the taxes of the last year, and chinking and daubing the house.</p> <p>The act of the 21st of March 1772, 1 Smith’s Laws 370, upon which the proceeding was founded, gives authority for it, “ where any person or persons, having leased or demised “ any lands or tenements to any person or persons for a term “ of one or more years, or at will, paying certain rents, shall “ be desirous upon the determination of the lease, to have “ again or repossess his or her estate so demised.”</p>

in ERROR. Somerset county. r g ''HIS was a writ of error to the Common Pleas of g -®- as assignee of Casper Kitzmiller, brought debt upon two bonds, one for the payment of 50 dollars on the 25th of April 1802, the other for the like sum on the 5th of April 1804.

IN ERROR. THE defendant in error instituted an action before a justice of the peace of Somerset county, to recover the balance of a book account for boarding the stage drivers of the plaintiff in error, and for hay and oats furnished to his stage horses. The justice gave judgment against the in error, who appealed to the Common Pleas.

<p>A jury may take out with them any writings that have been fence "without distinction as to sealed "except the depositions of witnesses.</p>

<p>The certificate of a bankrupt’s conformity, is conclusive evidence of the trading and bankruptcy &c. as signees and a debtor of the bankrupt himself, but ill a suit by a creditor self, it is but dencetier a plea that creditor may wís not a trader meaning of the bankrupt law.</p>

<p>IN ERROR.</p> <p>THIS was a writ of error to the Common Pleas of Cumberland county, to bring up the record and proceedings in an action of ejectment. By a special verdict, under which the case was decided below, the jury found—</p> <p>That Agnes Graham, on the 4th of January 1768, was seised in her demesne as of fee of the premises in the declaration mentioned; and being so thereof seised, on the same day made her last will and testament in writing, in. after ordering her debts and funeral expenses to be paid, she devised as follows: “ I give devise and bequeath unto my grandson William Graham Holmes, my plantation “ and tract of land situate on Let-art Spring above Carlisle, “ with the appurtenances, to hold to his heirs and assigns “forever, to be entered upon and taken possession of by him, “ as soon as ^le arr'mes at the age of twenty-one years or the “ day of his marriage, which shall first happen.” “ I do will or<^er ar*d direct, that if my grandson William Graham “ Holmes shall die under age or without issue, that his estate shall descend to his next brother and his heirs; but if “he leave no brother, then to his sisters and their heirs s^are and share alike.” That the testatrix gave small legacies to several persons, and the residue to her said grandson, ordering “ that the herein before mentioned legacies be “ paid out of the rents and profits of my plantation, arising “ before my said grandson arrives at the age of twenty-one “ years or marriage.” That William G. Holmes the devisee entered and took possession, and died seised thereof on the' 30th of July 1804 intestate, of full age, unmarried and without issue, leaving a father, Andrew, and a mother, both in full life. That the said Andrew, on the 12th of February 1805, conveyed the same to the lessors of the plaintiff, and the defendant, as tenants in common. That W. G. H. had a brother John of the whole blood, who was born on the 27th of March 1768, and died the 26th of December 1801, of full age, unmarried and without issue. That the lessors of the plaintiff are the sisters, younger brothers &c. of the sai W. G. H., and the defendant is and was the oldest surviving brother of the said W. G. H. at the time of his death. The jury found also the lease entry and ouster, and that the defendant was in possession.</p> <p>Upon this verdict, the Court below rendered judgment for the plaintiff, and the defendant took a writ of error.</p> <p>were 1. That William Graham Holmes took an estate tail, with a contingent remainder in fee to his next surviving brother that should be alive at the time of his death without issue, viz. the defendant below. 2. That if he took a fee, there was an executory devise over to the next surviving brother, in the event of his dying without issue living at the time of his death.</p> <p>1. That William Graham Holmes did not take an estate tail, but a fee simple, with an executory devise over, on the event of his dying under; age and without issue, which had not happened; and that the fee became indefeasible at twenty-one. 2, But if the event had happened, on which the executory devise was to take place, the estate went to the heirs of John, the oldest brother of W. G. Holmes, who died in the life time of the latter; and the lessors of the plaintiff were his heirs, in part.</p> <p>but as the whole ground is gone over by the Judges in their opinions, it is unnecessary to give a note of the argument.</p>

<p>A return to a fi'fa. “levied on “ grain, house- “ hold furniture “ed) and left at “the plaintiff’s evidence tha? the judgment was completely satisfied, so as to make an alias for the residue void.</p> <p>A general return of “levied “per inventory,” does not, by thepractice in Pennsylthe'defendantSe and make the’ sheriff hable for the whole debt. He is liable only for the value of the goods upon which a levy was made, or “light have been made; andón nettsales^an6 alias goes for the application to the court.</p> <p>A purchaserat sheriff'bsale cannot give parol evidence of a deed by which the title was conveyed to the execution, unless he lays the usual ground tor secondary evidence. He stands as to proof of title, on the same footing as other purchasers.</p>

IN ERROR. THE defendant was indicted in the Quarter Sessions of Franklin county for “that he, on the 24th of August “ 1809, about the hour of ten of the clock in the night of “the same day, -with force and arms at Largan township, in “ the county aforesaid, the dwelling house of James Strain “ there situate, unlawfully, maliciously, and secretly did “ break and enter, with intent to disturb the peace of the “ commonwealth; and so being in the said dwelling house, “…

<p>In an action oftrespass foTciR ting and carry^.ai^a^issee for years may by*the cus tom of the conn13 mUtl.ed to the way going crop, though it ip not specially stated in his declaration, and th°uS!l lle ilela lease, which’ ^haTcus tom extends stue'and^em'ers into every contract to which it applies.</p> <p>. A tenant intitled to the way going crop, who enters and warns a third person against Cutting it, may maintain trespass quare clausum fregit against the wrong doer, notwithstanding he had, previously to the trespass, given up to his landlord possession of the farm in a part of which the crop was growing. 5</p> <p>But a tenant who has underlet a part of his farm to another, and has then surrendered possession as before, cannot recover dam.ages for cutting the crop put in by his under-tenant.</p>

<p>THIS was an ejectment in the Circuit Court of Bedford X county, tried before Mr. Justice Teates, and the late Mr. Justice Smith, in November 1803.</p> <p>The title to the premises in question was proved to have been in Robert Callender in fee simple, who, on the 7th of Junel77Z, in consideration of natural love and affection, and five shillings, granted the same to William Neill and Isabella his Wife (now Isabella M'Intire the lessor of the plaintiff) in fee, as joint-tenants,</p> <p>The defendant then offered in evidence, a deed, dated 17th February 1779, from the said William Neill and Isabella his wife to Samuel Todd for the same premises, and executed in Baltimore where the grantors then resided. On this deed was endorsed a certificate in the following terms:</p> <p>“ Baltimore county ss. On the 17th day of February 1779, “ before us the subscribers, two of the justices of the peace “ for said county, came William Neill and Isabella his wife, “and acknowledged the within indenture of bargain and “ sale to be their act and deed, according to the true in- “ tent and meaning thereof; and the lands and premises “ therein mentioned to be bargained and sold, with all and “ every the appurtenances, to be the right, title, interest, “ estate, and property of the within named Samuel Todd his “ heir and assigns forever. And the said Isabella being by “ us privately examined apart from her said husband, and “ out of his hearing, acknowledged that she joined in the “ execution of the within deed of bargain and sale, of her “ own free and voluntary will and accord, without being “ thereto compelled or induced by any fear, threats, or ill “ usage of her said husband, or through fear of his displeasure. Acknowledged before James Calhoun, Peter “ Shepherd.”</p> <p>To this was annexed a certificate of William Gibson, clerk of Baltimore county, under the seal of the County Court, dated the 18th February 1779, stating that fames Calhoun and Peter Shepherd, were justices of the peace for Baltimore county.</p> <p>A certificate from the same person was also produced, dated the 30th of September 1802, setting forth that the said Calhoun and Shepherd were principal magistrates and justices of the Common Pleas of Baltimore county, and that no superior magistrates or peace officers were in the said county in 1779.</p> <p>A similar certificate was produced from Ninian Pinkney, clerk of the Executive Council of Maryland, dated the 8th of November 1802. The deed had been recorded in Pennsylvania on the 10th of May 1792.</p> <p>The plaintiff’s counsel objected to its being read, upon two grounds. 1st. That the acknowledgment had not been made before a competent officer, and was not duly certified. 2d. That it did not appear that the contents had been made known to the wife.</p> <p>The Court overruled both objections, and admitted the deed, upon which a verdict passed for the defendant. A motion for a new trial was then made and overruled, and the defendant appealed to this Court.</p> <p>urged the same objections that were taken below.</p> <p>1st. The act of the 24th of February 1770, gives effect to acknowledgments of deeds, by husband and wife, made out of the state, only where they are made before any mayor or chief magistrate, or officer of the cities, towns, or places, where such deeds are executed, and certified under the common or public seal of such cities, towns, or places. It must be chief magistrate, or chief officer, and the justices of Baltintore county being all equal, there could be no chief. This is the introduction of a new power of a judicial kind, to persons out of the state, and should therefore be construed strictly. The word place does not include county. County is more extensive than city or town; and where things of inferior rank are particularized, and then a general term is used, the general term does not include things of a higher nature. The acknowledgment must also be certified as well as made; certified under the public seal of the city, town, or place. The person who takes the acknowledgment, must certify. Here the certificate is by a stranger, not under the public seal of the place, even if county is included by place, but under the seal of a court.</p> <p>2d. But the contents must be made known to the wife. In the Lessee of Watson v. Bailey (a), the court disregarded the acknowledgment, because it did not pursue the requisitions of the act. Making known the contents is essential. The wife may be deceived. It is the duty of the magistrate to inform her, and it should appear that he did. It does not appear here that she knew what lands she was conveying.</p> <p>1st. The words are mayor, chief magistrate or officer, not chief officer. Mayor refers to city, chief magistrate to town, officer to any place, which includes county; it can mean nothing else, for we know no other municipal divisions of the smaller kind. It was well known to the legislature that there were many places, where there was no mayor or chief magistrate; and it was their intention to facilitate acknowledgments out of the state. It is sufficient if the officer has no superior. Baltimore was not incorporated at the date of this acknowledgment; there was of course no chief officer but a justice of the peace, and no public seal of the county, but the seal of the County Court. That is the public seal of the county for judicial purposes. It gives all the authenticity to the act that the law requires, and is duly annexed.</p> <p>2d. It is sufficient that it appears that the wife knew the contents, not that the officer made them known to her. Here she acknowledged the lands mentioned in the deed to be bargained and sold, to be the right of the grantee. She therefore must have known what lands are mentioned in the deed, and to whom they were conveyed. Watson's Lessee v. Bailey* was a very different case. There the wife did not state that she had voluntarily consented to the deed, which it was the principal if not exclusive object of an acknowledgment to ascertain.</p>

PHILLIPS on behalf of Ann Lawrence, petitioned the Court for a habeas corpus under the act of 1783, to one Joseph Fogdes, to bring up the body of Adam Lawrence then in his custody as a slave, whereas, according to the suggestion, he was free. It was stated by the counsel, that the case had been already heard upon a habeas corpus by the Common Pleas of Philadelphia county, who remanded the prisoner; and that there was no new evidence to lay before this Court.

<p>THIS was an ejectment for a lot of land containing about four acres, in the Northern Liberties of Philadelphia, tried before Brackenridge J. at a Nisi Prius in November 1811, when a verdict was found for the defendant.</p> <p>Upon a motion for a new trial by the plaintiff, his honour now reported the material facts as follows:</p> <p>On the 12th of December 1797, Turner Camac and wife, (the real plaintiffs in the cause) then residing in Ireland, sent out to this country one Nicholas Halliday, under a joint and several power of attorney to him and Thomas Laix>, to enter upon the lands of the wife in the Northern Liberties, to make leases, receive rents, and the like.-The estate was in the immediate vicinity of the? city, of great extent value.</p> <p>On the 15th of September 1799, the power was in the county of Philadelphia; and Mr. Law, no.t being able, on account of non-residence, to join in the agency, Mr. Halliday separately made leases, collected rents, and superintended the estate, residing at the same time upon Under this power he leased lots -to the defendant, not now • j * „ in dispute-</p> <p>On the 30th oí November 1801,-Mr. and Mrs. Camac, still being in Ireland, made a second power, to Nicholas Halliday, Thomas Law and Benjamin Chew, -or' any two of them, jointly, but not severally, to sell and convey in fee simple, a part of the estate to Joseph Sims, to, sell and convey to United States another part for a navy yard, and to lease the estate generally; but it contained no words expressly vokmg the first power.</p> <p>This second power was known to Mr. Halliday, probably in the month of March 1802, when he wrote to Mr. Chew that as the, 1st of April was approaching, it would be necessary for them to settle the form of their leases. It was certainly shewn to him by Mr. Chew, on the 5th of May 1802. Mr. Lazv positively refused to act; Mr. Chew refused to act in conjunction with Halliday, but, as he stated to the jury, he accepted the power for the purpose of preventing Halliday from acting alone. No conveyance or lease was made under it, but there was a conference by Mr. Chew with commissioners on the part of thé United States, which proved abortive, and he gave notice to Mr. Sims not to pay Halliday the purchase money of the land contracted for by him. The power was never recorded; it was placed in the recorder’s office by Mr. Chew, on the 27th of July, 1802, and afterwards withdrawn. No notice was given of it in the public papers, or otherwise; and Halliday continued to reside on the estate, receiving rents &c. in apparently his former character.</p> <p>On the 13th of August, 1802, Mr. and Mrs. Camac executed a third power to David Lenox and Benjamin Chew, expressly revoking all former powers. This power was recorded on the 18th of November 1802, and notice of the agency published in the newspapers on the 27th of January 1803.</p> <p>Before the date of the third power, Halliday on the 9th of June 1802, leased the premises in question to Matthew Feesey for ninety-nine years, the defendant making the contract as attorney to Feesey, and taking possession for him. The rent reserved was a fair one at the time, but owing in part to the exertions of Stell in attracting purchasers to that quarter, and in improving this and the adjacent land, it had increased considerably in value. There was no evidence whatever that the second power was known to Stell, or to any person on the estate. Halliday’received rent from one tenant to whom he had made a lease on the 2d of August 1802.</p> <p>Mr. and, Mrs. Camac subsequently came to the United States, and an action being instituted by him against Halliday, his counsel at the call of Halliday’s counsel, exhibited on the 24th of May 1811, an account headed in the following manner. “ Nicholas Halliday Dr. to Turner Camac Es- “ quire, for the following rents which he did or ought to “ have received, the leases being granted by him as agent.” It contained columns, at the top of which respectively was written, 1. “ Tenant’s names,” 2. “ Leases when granted,” 3. “ Payments from the commencement of Leases, till ter- “ mination of agency,” 4. “ Amount of rents.” By the 3d column the rents were charged in every instance up to a period subsequent to the arrival of the third power in the United States. The first column contained the names of Stell and Feesey, in several instances, and in one instance. Mr. Feesey was named as a tenant under a lease of the 2oth of May 1802. The last lease recognized Was under date of the 2d of August 1802. But the lease in question was not mentioned at all; and at the foot of the account there was a deduction of “ the rents of Matthew Feesey and fames Stell, “ their leases being now disputed by Mr. Camac.”</p> <p>His Honour, after commenting upon the facts to the jury, and shewing a considerable leaning to the case made out by the defendant, told them that it gave rise to the following questions:</p> <p>1. Whether Halliday had authority under the first power, in connection With the circumstances attending the second power, to make the lease in question; or in other words, whether in the understanding and by the acts of the parties, the first power was ány more than conditionally revoked by the second, namely, in case the second should be acted under. This as a question of fact, he left to the jury.</p> <p>2. Whether by the exhibit of the 24th of May 1811, it was intended by Camac to assert the general authority and duty of Halliday as agent up to the date of the third power, and as ratifying his acts generally to that time, or only in particular cases.</p> <p>3. Whether it was the duty of Camac to record the second power, and to give public notice of it in the gazette. The jury, his Honour said, might consider the recording and publishing as unnecessary; he would reserve that point for the defendant, who might urge it in bank, if the verdict should be against him.</p> <p>After thus stating to the Court the facts and points above "mentioned., Judge Brackenridge proceeded as follows:</p> <p>In making this report, it will be expected that I should say whether I am satisfied with the verdict, or dissatisfied with it. Were I to say aye or no, it would not convey my •mind on the subject; for if satisfied, it is sub modo, and under circumstances. It cannot but be discovered, that in what I said to the jury on the trial, the inclination of my mind was in favour of such a verdict, and that the impressions communicated had a leaning that way. And it might perhaps be said that there was something like an astutia with that view in suggesting the idea of a conditional revocation. And now that the defendant has gotten a verdict, between him and the plaintiff, I might be unwilling to deprive him of it. But why was it that I had this leaning? It was because I thought it a hard action, as it respected the defendant, an innocent purchaser without notice or a pretence of it, even if there had been a revocation. I thought he ought to be protected. But abstracting myself from the hardship of the case as respects him, and excluding all consideration but that of the fact of a revocation, I am not so clear on reflection that I can justify my own impressions, and approve the verdict. If the case was between the plaintiff and his agent for damages, for going on after he had such reason to think that it was the will of his principal, that he should be superseded as to his individual and separate agency, I might think he had due notice, and ought to be answerable. And yet such a Verdict on the question of notice, would be inconsistent with that in this case. But whence is it that such embarrassment did arise, and that such dilemma in consequence of it presents itself to the mind? It is owing to the not disposing of the reserved point as a question of law in the first instance. For if the defendant shall be protected by his want of notice of the revocation, actual or constructive, the hardship of paying a valuable consideration and losing the land will be removed, and will not force itself upon the mind in considering the fact of revocation. For it cannot but be felt as against conscience that he should lose the land and not recover the recompense: and though he might have his action against the agent for undertaking to sell, yet it is more reasonable that he should hold the land, and leave the plaintiff to his action, who originally gave the trust, and was in default in not having given publicity to his revocation; a licity at least co-extensive with that originally given of the power, which was not only by recording, but by the gazette. In reserving the point, it was ruled pro forma for the plaintiff; that is, the case was to be considered as if the plaintiff was not bound to give such publicity; for it was not pretended that there was evidence of the recording the second power, revoking impliedly the first, nor any advertisement' in the gazette.</p> <p>It being a point of law whether there ought not to have been notice to the public of the revocation, and a question of fact, whether there had been such notice to the public, and there being no evidence of that, I think I ought to have directed a nonsuit. But I suffered the matter to go to the jury on the fact of notice of the revocation to the agent, at the same time telling the defendant, that even if the verdict should be against him, he had a right to move the Court in bank to set aside the verdict, and have a nonsuit entered. If on the .argument of the reserved point, which I think ought to come first in order, the Court shall be of opinion that notice, express or constructive, of the revocation to the defendant, is out of the question and was not necessary, nor ought to have been looked at by the Court or jury in considering the fact of notice of revocation to the agent, there may be ground to set aside the verdict, in order that it may again come forward, disembarrassed with all that feeling derived from that impression. For I will acknowledge that on analysing my impressions on the trial, it seems to me that I felt strongly, and the jury may have done so also, the great force of this; and had a nonsuit been moved for, I was much inclined to have directed it. For though I had not any distinct recollection of any law reading directly on this head, yet in the analogous cases of a dissolution of a partnership in mercantile concerns, the principle would seem to bear, which is a common law principle; and in the case of sales of real estate and personal property will apply. It is against equity that any one should suifer from the default of one who has not given the notice that he might have given of the revocation of authorities which have passed under him., If these ideas are correct, and the law point shall be determined against the plaintiff, the setting aside verdict will be nugatory, for in that case the Court will be bound on setting it aside to order a nonsuit to be entered, The Court will do now what it may have been the duty of the Court at Nisi Prius to have done, and what it was in the power of the Judge to have done.</p> <p>contended, that the verdict was against law and evidence. The first power was revoked by the execution and delivery of the second, because the second was to three or any two of them jointly and not separately; of course it negatived the authority of Halliday to act alone in the matter referred to in the second power. It was inconsistent with the first, and therefore annulled it. This effect was produced from the moment it was known to Halliday, which was in March, or at latest in May, and certainly before the execution of the present lease; and hence, unless the defendant’s objections to this position are valid, he has no title whatever, and the jury were wrong.</p> <p>Two objections are taken; 1. That to constitute a revocation, it was necessary that the second power should be accepted; or as it was stated by the Judge, the second power might be considered a conditional revocation only. 2. That it was essential to record, publish in the gazette, or otherwise generally make known, the second power.</p> <p>1. The second power was in fact accepted. It was accepted by Halliday in March, when he wrote to Mr. Chew, that as the first of April was approaching, they must settle the form of their leases. It was accepted also by Mr. Chew to prevent Halliday from acting alone. Acts under it were not necessary to make it a revocation. Revocation depended on the intention of the principals, not on the acts of the attornies. Mr. Chew however did act, by holding a conference with commissioners of the United States, and by giving notice to Sims. His authority to do either of these depended wholly upon the ^second power, and of course he acted under that power.</p> <p>2. It lies on'the defendant to show the necessity of recording and publishing the second power. No act of assembly requires the former; and independent of statutory regulation, it is not necessary to record any instrument. Recording would be useless, because not being required, it would not “ amount to notice. Publication in the gazette is not prescribed by statute, and is alike unnecessary. In what paper should it have been published, and how many times? Unless actually brought to the knowledge of the defendant, such publication would amount to nothing. To whom then should private and personal notice have been given? Here lies the fallacy of the objection. It requires notice to the defendant, when all the world were as much intitled to it as he. Who was to give notice to all the world? No one. Where no one is bound to give notice, the defendant ought to take notice at his peril. 16 Fin. .11. c. 2. But it is not notice to the purchaser, that constitutes a revocation; notice to the attorney . is sufficient. Our act of 1705,1 Smith's Laws 69, is explicit. “ No sale of lands made by virtue of a power of attorney,- “ shall be good and effectual, unless made while such power “ is in force; and all such powers shall be accounted deemed “ and taken to be in force, until the attorney or agent shall “ have due notice of a countermand, revocation, or death of the constituent.” He who deals with an attorney, trusts to the attorney. If the attorney has received notice, it not only terminates the power, but it is notice of the termination to him who derives through the attorney. The defendant must look to the person who has defrauded him, not to the principal, who gave to the attorney due notice of a countermand. A contrary doctrine compels the principal to follow the steps of his discarded agent forever, for the purpose of interposing notice to all whom he may attempt to defraud. The account exhibited by Camac makes not the least impression, on this cause. It was. exhibited in another suit, and between other parties. It was a mere charge against Halliday, prepared and offered by counsel, and is analogous to a LJ1 in Chancery, which is not evidence against the complainant in another suit. Besides, Camac had a perfect right to affirm some leases, and to disaffirm others. In this exhibit he expressly excepts all leases to Stall and .Feesey, and does not even state the existence of the present lease.</p> <p>1. That upon principles of equity, the Court ought to refuse anew trial. 2. That at law the defendant had a title.</p> <p>1. The defendant is a bona Jide purchaser, for a valuable consideration, without notice. Not a fact appeared to the contrary at the trial, and the jury have settled it by their verdict. His exertions redeemed the property from a waste, and improved the estate of Camac in its neighbourhood; and he has strong equity in this circumstance, especially as the rise in value is the only motive for the suit. This Court are now in the situation of a court of equity that is asked to lend its powers to a plaintiff to overcome the title of such a defendant; for a new trial is wholly in their discretion. They may, and they ought to refuse their assistance. A court of equity will not take the least step against such a purchaser. If there is a shadow of blame in the plaintiff, they will not do it; á fortiori, where by his gross negligence, his confidence in his own agent, his continuing him in the agency generally, he produced the whole mischief. Camac indirectly encouraged the defendant to purchase, and if it were necessary, might be compelled to confirm the title. He originally gave credit to Halliday, and reposed confidence in him. He alone could prevent Halliday from abusing the trust. He invited others to confide in him, and took no step to inform them when that confidence ought to cease. A court acting with equity powers, or to whose discretion such a party applies for aid, .should leave him with the jury. 2 Salk. 644., 2 Cas. in Chan. 108. 156., 1 Vern. 156., 2 Vern. 599.</p> <p>2. But the defendant has a title at law, for several reasons. The first power was not revoked by the second, even as tb Halliday. The second power contains no words of revocation; if it has the effect of revoking, it must be from the intention and acts of all the parties as they appeared in evidence. But from these the contrary followed. Mr. and Mrs. Camac did not intend to be without an agent in America; they therefore meant that, if the first power ceased, it should cease in consequence of the creation of another agency to supply its place; and if that other agency did not take effect,, the old one was to continue. Their confidence in Halliday was nbt gone, or they would not have connected him with Chew and Law. Did 'the second agency take effect? It cannot be pretended. Two must have agreed to act, or it was of no effect. Law declined. Chew would- not act with Halliday. Then Halliday alone was left. It is said Chew accepted to prevent Halliday from acting alone; but it was a novel idea to accept a power with a determination not to act under it. Camac did not consider the second power as a revocation, as is shown by his account that charges Halliday as agent up to the third power. Chew did not consider it so, or after putting the second power into the office for registry, he would not have withdrawn it. Halliday did not consider it so, or it is to be presumed he would not have acted alone. There is then the intention of the principal, his subsequent declaration, and the opinion of both attornies, that it was not a revocation; and the instrument says nothing to the contrary.</p> <p>But it was not revoked as to the defendant. The circumstances are to be considered. The estate was a very extensive one; the agency notorious; the power of the agent recorded; his residence on the land. Such an authority is not revoked by mere notice to the agent. The rule of law is that every one is bound to take notice, where no one is bound to give notice; but where there are public evidences of authority, a recorded power, residence on the estate, possession of title papers, the principal is bound to give notice. Where one has been so long the agent of another as to become generally known as such, the principal must make the revocation as notorious as the power, or the acts of the agent will bind him. It is so as to partners in trade, who are the agents of each other. Peake's N. P. 42. 154. It is so generally by the civil law. Pothier on Obligations 80. Liv. 12. s. 2. and Liv. 32. ff. de soliit. In the case of domestic servants. Bolton v. Hillersden (a). And also in the case of agents appointed for commercial purposes, such as drawing bills, and the like. In-v. Harrison (a), a servant had power to draw bills in his master’s name, and afterwards was turned out of the service. If he draw a bill, said Lord Chief Justice Holt, in so little time after, that the world cannot take notice of his being out of service, or if he were a long time out of his. service, but that kept so secret that the world cannot take notice of it, the bill in those cases shall bind the master.. Here the second power was kept secret. Where a thing lies. more properly in the conusance of the plaintiff than the defendant, notice is necessary. 16 Vin. 5. pl. 12. pl. 19. 16. 18. 9. 2.4., Pothier 302. No. 448., 47. No. 79. 81. Certainly the power of attorney might have been recorded. It was a deed' relating to lands. So it might have been published in the gazette, it might have been made known to the tenants on the land, of whom the. defendant was one. If notice was necessary in any way, the plaintiff fails, because it was not given at all. The act of 1705, which respects notice to the agent, does not apply. That act by the preamble was intended to secure purchasers, not to say when they should be defeated. It appears to have been made under a belief that a countermand, or death, without notice, might revoke a power of attorney; and was intended to quiet this apprehension only.</p>

THIS was an action for money had and received, tried before Brackenridge J. at a Nisi Prius in November last, when a verdict was found for the plaintiff, damages 457 dollars 52 cents. Upon a motion for a new trial, his honour reported the facts to be, that on the 8th of July 1796, the house of Le Mar, Hill, Bisset & Co. of Madeira, shipped two pipes of wine to Walter Stewart, Esq., in Philadelphia, and for his account and risque.

THE defendant was arrested and held to bail by process out of the Common Pleas of Philadelphia county, in the year 1808, upon a note of hand for 1000 dollars,'drawn by him in the city of Washington on the 18th of March 1807, and payable there. The cause was removed to this Court, and verdict obtained on the 19ih of November 1811, in the plaintiffs’ favour, for 1222 dollars 37 cents, on which final J udgment was entered on the 13th of December following.

<p>.Evidence from a comparison of handwriting, supported by other circumstances,is admissible. On the same principle, from a comparison of the types, devices &c. of two newspapers, one of which is clearly proved, and the other imperfectly, the j ury may be authorized to infer that both were printed by the same person.</p> <p>To print and publish of A, “ that he has been deprived of a participation of the chief “ ordinance of the church to which lie belongs, and that too by reason of his infamous, “groundless assertions,” is a libel.</p> <p>So is any malicious printed slander which tends to expose a man to ridicule, contempt, hatred, or degradation of character.</p> <p>If after a jury are sworn, and before the verdict, one of the parties learns that a juror before he was impannelled, declared that he had made up his mind against him, he must make it known at once, if he intends to rely on it. He must not take the chance of a verdict in his favour, and upon its being the other way, move for a new trial upon the declarations of the juror.</p> <p>The juror implicated, may be examined to shew that he did not make the declarations imputed to him; but neither he, nor any of the jurors can be asked, whether he was not in favour of the lowest sum that had been named for damages by any of the panel.</p>

ON a former day, Dallas and Ingersoll on behalf of O'Ellers and others as relators, obtained-a rule to shew cause why an information in the nature of a quo warranto should not filed against the defendants, to enquire by what authority they claimed to exercise the office of Lay Trustees of the Corporation of the German Religious city of Roman Catholics of the Holy Trinity Church &c. Upon the return of that rule, the defendants appeared hy counsel, and shewed cause; and the…

<p>A contract for different parts notídhJólved by failure of title to the ven'det can claim only a dethe price^But where a part is the loss ont^*" renders the rest as of !f minear valuable fishery-very poor land, or the right of for tarnfnga^ mill, the failure pavt^dissolves& the contract for</p> <p>one state have a dity of an act of ^oTwltate in reference to the timfWherever1* it is essential to causíduiy" brought before them.</p> <p>An act of the legislature of Maryland, which gave authority to the commissioners of the city of Washington, to make resales of all lots the purchase money of which remained unpaid for a certain time after it ought to have been paid, does not impair a contract previously made by the commissioners for the sale of those lots, but merely gives a new remedy. It is therefore, not unconstitutional for such a cause.</p> <p>A sells several lots of land for a sum of money, payable by instalments, and covenants to eonvey with general warranty, on payment of the whole money. He then conveys the lots to C and D with general warranty, in trust to convey them to the vendee in fee simple as soon as the purchase money and interest should be paid according to contract, and delivers them the obligations for the money. Held that this conveyance is no impediment to a suit in A’s name for the recovery of the money, nor to an apportionment of the purchase money, if title to some of the lots fails.</p>

<p>A, a British sub-States on the 10th of October 1807, at which time he reported itself and agree ably to law, declared his intention to become a citizen United sided in Pennsylvania from the “time of his arnval until his October 1809 Subsequent to Present war United States and Great Britain, and after the expiration of five years from his father’s arrival, the son petitioned to the rights of citizenship upon taking the by law.</p> <p>Held, that as the father himself if living could not be admitted to the rights of citizen-war with Great Britain, neither can his son be; the proviso m the act of Congress of the 14th of April 1802, which denies the privileges of citizenship to the subjects of a sovereign with whom the United States is at war at the time of the application, extending to the supplemental act of the 26th of March 1804, which in the case of an alien who has declared his intention &c., and dies before he is actually naturalized, intitles his widow and children to be naturalized on taking the requisite oaths.</p>

<p>UPON the information of Thomas Lock, the Escheator General issued his precept to the sheriff of Chester county, to impannel an inquest for the purpose of ing, whether John Lloyd deceased, had died without heirs or known kindred, possessed of any estate real or personal in that county, and in whose hands or possession the was; and the inquest, on the 26th of February last, found that he did so die, leaving monies, goods and chattels the amount of 640 dollars 28 cents, in the hands of Joseph Hall.</p> <p>Flail had previously taken out letters of administration to * * Lloyd,, and filed an inventory; and on the Slst of last, he settled his account in the Orphan’s Court of Chester which was confirmed on the 4th of May, making a balance of only 164 dollars 27 cents in his hands. On the 31st of August, an attachment was issued upon the inquisition, on which he paid the balance admitted to be in his hands, gave bond according to law, to appear at this Court to traverse the inquisition, and to pay the balance, if found against him.</p> <p>Frazer on a former day presented a petition, and moved for leave to that effect; but the Court, suggesting a difficulty in consequence of their inability to try an issue of fact, in Chester county, requested him to argue the point, which he now did accordingly.</p> <p>He remarked, that he entered upon the argument in consequence of an intimation from the Court, on presenting the petition of the traverser, that the issue upon the traverse must necessarily be tried by ajury; but that he would endeavour to shew, that the Court might proceed, without ajury; and if so, that the proceedings might be put into such shape, as would conform to the opinion of the Court. That the Court clearly had jurisdiction of the case, by the fourth and fifth sections of the' “ act to declare and regulate escheats,” and that the only difficulty arose from abolishing the Courts of Nisi Prius and Circuit Courts in all the counties of the state except Philadelphia. That as the application therefore was not to extend the jurisdiction of the Court, they would sustain and decide upon it, if they possessed any powers adequate to the case, and particularly, as the traverser would be otherwise wholly without remedy.</p> <p>To shew that the Court had power, he contended,</p> <p>1. That the proceedings upon a petition of right, monstrans de droit, or traverse, do not necessarily require that the trial should be by jury. On the petition of right, the party suggests an interest in himself which does not appear upon the inquisition, and which controverts the title of the public; and proceedings being had to ascertain the truth of the suggestion, the merits are to be ascertained “ upon issue or demurrer as in other suits.” 3 Bl. Com. 256. 260. And the traverse coming in place of the petition of right, for the greater facility of the proceeding, will, as to the mode of trial, be governed by the same rule.</p> <p>Trial, which is the examination of the matters of fact in issue, may be in various modes, of which that by record,, that by witnesses, and that hy jury are applicable to the present case; 3 Bl. Com. 330; and as the defence suggested by the traverser, arises upon a record of the Orphan’s Court of Chester county, there will be no difficulty in so framing the issue, as to have a trial by the record. Or if the record of that Court should not be considered conclusive, the account which it contains can be re-examined by witnesses, and by the usual vouchers called for by that Court. Either of these modes appears more appropriate than trial by jury to the present case, where neither the attorney general, nor escheator general, nor the informer, although noticed, make any objection, and where the only matter to be ascertained is the balance of an administration account.</p> <p>2. But the act of assembly, not only does not require the trial to be by jury, but, as is apprehended, expressly directs it to be in a summary way. By the fifth section of the “ act to declare and regulate escheats,” 2 Smith's Laws,427', it is directed that “ if there be any that claim the estate real or personal so as aforesaid found to be escheated, he, she or they shall be heard without delay upon a traverse to the office, monstrans de droit, or petition of right” &c. The remainder of this section is confined to cases relating to real estates, and does not reach the present. The sixth section enacts “ that if any person or persons within five years next after the “ sale of such goods and chattels as aforesaid, shall make his “ or her claim in manner herein before directed, and shall es- “ tablish his or her right thereto, as herein after provided, he “ or she shall” ike. referring for the mode of trial and determination to a subsequent part of the act; and there is no subsequent part which directs the mode of determining on claims or traverses, except the seventeenth section, which relating principally to estates forfeited for crimes, enacts “ that the Supreme Court shall allow of traverses and claims “ (if made under the limitations herein before provided) to “such forfeited property, and decide upon the same” &c.; “ and the justices of the Supreme Court or any two of them “ shall hear and determine upon all and any claims as last"6 “ aforesaid in a summary manner as to equity shall appertain” fee. 2 Smith’s Laws 431, 2. By which it appears, that the sixth and seventeenth sections have a direct reference to each other; the sixth to the seventeenth, for the mode of determining, the seventeenth to the sixth for the form of application to the Court. And by the records of claims and proceedings under the seventeenth section, it will appear that the present application is exactly conformable to them; and that in those cases there was no trial by jury, but that the cases were decided upon the documents exhibited with the petition, James’ claim. 1 Dall. 47.</p> <p>3. If, however, the Court should think that the facts of this case must be tried by a jury, what prevents their summoning to the bar of this Court a jury from Chester county? The act of 1722, constituting the Court, grants jurisdiction and power “ as full and ample as the justices of the King’s Bench See. at Westminster have.” And although it is not contended that such a power has usually, if ever, been exercised by this Court, under the act of assembly, yet as such a power did exist at the time of passing the act, and is still exercised by the Court of King’s Bench, as the words of the act are sufficiently broad to embrace the power, and as the remedy of the traverser must wholly fail, without the interposition of the Court, there does not appear to be any sufficient objection against the Court’s exercising this power.</p> <p>4. But finally, the Court have jurisdiction of the case, and are expressly directed to decide on it. And if the act does not direct a trial by jury, nor the form in which the issue is to be joined, nor the place where the venire is to be laid, and the Court should be of opinion that they cannot determine the case in any of the modes already pointed out, still they are bound to decide the case. They are bound to give redress, and for that purpose to exercise such authority as is not disputed, to direct the issue to be made up in such form as that a jury may be called from the city and county of Philadelphia, which is the object of the specific motion before the Court.</p>

<p>A discharge in the District of" Columbia, under the insolvent law of Congress, an exoneretur, of the trict, adisinLlventf law of Pennsylvania would not be recognized there; the debt being contradicted and due to a person out of the jurisdiction of the place where the discharge was obtained.</p>

EXCEPTIONS by the plaintiff to a report of referees. There were cross actions on the case between these parties, who had been partners, and brought suit respectively in this form, for matters arising out of unsettled partnership transactions.

FOREIGN attachment to July term 1811. On the first day of December term following, jfallowed for the defendant obtained a rule upon the plaintiff to shew his cause of action, and why the attachment should not be dissolved, Meredith for the plaintiff, being now called upon to shew cause, contended that the motion was too late by the practice of the court. It should have been made at the term to which the writ was returnable. Serg. on Att. 138.

REPLEVIN. This cause came on for trial a second time, before the Chief Justice at a Nisi Prius in February last, when the same facts were in evidence, that are stated in the preceding volume, (page 405) with these additions.

<p>THIS was an action upon a policy of insurance, underwritten by the defendant, as President of the States Insurance Company, on the 4th of September 1807, upon goods by the ship Union} Jacobs, at and from Philadelphia to Antwerp, 15000 dollars at 10 per cent. The policy contained an agreement by the assured not to abandon in less than sixty days after advice of capture or detention, and the usual clause in relation to illicit or prohibited trade,</p> <p>The cause was tried before the Chief Justice at a Nisi Prius in November last, when it was agreed that a verdict should be, entered for the plaintiffs for 6862 dollars 94 cents, the full amount of their claim, calculated upon the principles of a total loss, subject to the opinion of the Court upon the whole case. If the Court should be of opinion that the plaintiffs were not' intitled to recover, then the verdict to be set aside, and judgment to be entered for the defendant. If they should be of opinion that the plaintiffs were intitled to recover, then they were to say whether as for a partial or total loss, and if for the former, upon what principles it was be calculated.</p> <p>The facts reported by the Chief Justice were these: The 'Union, sailed upon the voyage insured, with the goods of the plaintiffs on board, on the 13th of September 1807; and on the 16th of October was captured in the British channel by the private armed ship Resolution, and carried into Plymouth. On the 20th the ship and cargo were restored without costs, the papers returned, and the vessel permitted to prosecute her voyage, no one#of the officers or crew having been on shore during the detention. On the 20th she arrived in Flushing roads, and there cast anchor. As soon as the master reported himself from England, a guard was put on board, and continued until she finally departed. Efforts were made by the consignee at Antwerp to procure permission for the ship to come there, but they proved abortive; and on the 16th of November or December, it did not distinctly appear which from the protests, being ordered to leave the roads, she set sail upon a destination to Rotterdam for a market, in consequence of recommendations by the consignee. While in the prosecution pf this voyage, she was on the day after her departure from Flushing, captured by the British brig of war Royalist, and carried into the Downs. On the 24th of December her papers were returned, with permission to proceed to Rotterdam on payment of the captor’s expenses, which the captain agreed to, to prevent • further delay. On the 29th of December, while the captain was' in London for the purpose of obtaining advice and assistance, a gale of wind arose, in which the ship was obliged to cut her cable and proceed to Margate roads, where she obtained another, and came to anchor, with assistance from the shore. The salvage was adjusted here at 80/. On the 10th of January she proceeded to Westgate bay, where another gale arose on the 14th, and continued to the 16th, in which she suffered some damage in her hull, and was in danger of shipwreck; but by aid from the shore was again saved, at an expense, for salvage, of 886/. She then went to Ramsgate for repairs, where on the 12th of February, she was considerably injured in her channels and mainwhales, by the ship Paragon’s running foul of her. During this period, the captain remained in London, endeavouring to obtain the necessary advances for salvage and repairs, and for the amount of his freight, without which he would not proceed; and hearing in the month of February of a decree of Holland, forbidding the entry of all vessels thathM been in England, except in case of distress, he determined to bring the ship to London, and deposit the cargo with Bainbridges and Brown, who agreed on that condition to make the advances he required. On the 23d of February she accordingly came to London, the cargo was landed, and the repairs, salvage, and freight paid.</p> <p>The intelligence of the first capture reached the plaintiffs on or before the 1st of December 1807. On that day they wrote to their agents Messrs. Baring and brothers, of London, requesting their assistance, if the vessel and cargo were not restored, expressing their conviction that the capture would prevent her admission into Antwerp, and their hopes, that if that was the case, she might make some other port on the continent.</p> <p>In the beginning of February they knew of the events at Flushing and the second capture; and on the 29th of that month they wrote to the same gentlemen in London, expressing their regret at her detention in England, and saying “if the cargo is discharged in England, we consider the property as belonging to the underwriters.” Messrs. Baring and brothers, on the 29th of March, wrote to the plaintiffs, informing them that the cargo was discharged, and that when the expenses were settled, they would take their part of it. Shortly after the receipt of this letter, the plaintiffs on the 20th of May, abandoned to the underwriters, stating for cause, that “ the voyage was broken up, and the cargo dis- “ charged in England.”</p> <p>No proofs of loss were exhibited to the defendant, until the 18th of Jdnuary 1810; prior to which time, but after the abandonment, namely on the 8th of December 1808, the plaintiffs without consulting the defendant, wrote to Messrs. Barings to sell their adventure by the Union, when an opportunity should offer, stating that they were short insured 14000 dollars, that they were desirous of making the most for all concerned, and that they had no doubt of recovering from the underwriters. On the 31st of December 1808, and the 11th of October 1809, the adventure, consisting of sugars and indigo, was sold, at a considerable loss. The verdict was made up by taking the proportion which tbe sales, deducting general average and freight, bore ta the invoice price, and applying that to the sum insured.</p> <p>The case was argued at last December Term.</p> <p>The case presents an adventure of goods, which at the ‘time of abandonment were free from any restraint insured against, and in no degree damaged. But they were at London and not at Antwerp. It is the case of a loss of voyage merely, which gives no right of abandonment, unless exercised in a reasonable and short time after notice. Anderson v. Royal Exchange (a), Mitchell v. Edie (b), Allwood v. Henkell (c), Duncan v. Koch (d). The result of all the disasters which befel the adventure being this, if the plaintiffs can recover a total loss, it must be, because there has been at some period a peril justifying an abandonment, and an abandonment duly made. This has not been the case.</p> <p>1. The first capture cannot be relied on. Per se, it was a cause of abandonment only while it lasted, and it ceased before it was known to the assured. Its effects, were such as the policy does not cover, or if it does, recourse to the policy was waived by delay. The only effect was the prohibition to trade at Antwerp by the Berlin decree. This did not justify abandonment, because it was not a peril acting directly upon the thing insured, but it was the fear and apprehension of a peril. Hadkinson v. Robinson (e), Parkin v. Tunno (f), Foster v. Christie (g), Brown v. Vigne (h), Richardson v. Maine Ins. Co, (i). It was also within the clause against prohibited trade; and as the underwriters are not answerable for this at all, it is immaterial to them from what cause it arises. Mumford v. Phœnix Ins. Co. (k), Speyer v. N. York Ins. Co. (l), Tucker v. Juhel (m), 1 Marsh. 346. But be this as it may, the peril of capture and all its effects were known to the assured on the first of December; the sixty days expired on the first of February, and they did not abandon until the 20th of May, which was out of time.</p> <p>2. The detention at Flushing, and the turning away, will not answer. If Flushing is an out port of Antwerp, then the vessel arrived, and all that followed was a mere interdiction of trade, which is within the clause in the policy. If Flushing is not an out port of Antwerp, it was a deviation to cast anchor, for there is no evidence either of a custom, or a particular necessity to stop there. But suppose it otherwise, still the arrest, detention and turning away, are all within. the clause against prohibited trade. At all events, they were known in the beginning of February, and gave if any an immediate cause of abandonment, which was not exercised until May. It is perfectly clear that the assured intended to speculate at the underwriter’s expense. If the cargo-could reach the continent, they would take the profit; and they intended to abandon, only in the event of its being discharged in England. This it was not competent for them to do; but it shews why they did not elect to consider any event up 19 this time as a total loss.</p> <p>3. The second capture and its consequences are insufficient. The vessel sailed from Flushing for Rotterdam, not for advice, nor to wait an opportunity for prosecuting her original voyage, but to obtain a market. This was a clear deviation, which discharged the underwriters; for if the port of destination is shut, the policy does not protect the adventure to another port of discharge. The original voyage was abandoned, and the policy was at an end. Parkin v. Tunno (a), Blackenhagen v. Royal Exchange Ass. Co. (b), Lee v. Gray.(c)</p> <p>4. The abandonment when made, did not state a sufficient cause. It gave the result, and not the accident or peril, which should have been communicated, that the underwriters might know how far it was their duty to accept. The cargo might be discharged and the voyage broken up by the fault of the captain, as in fact it was from his solicitude to obtain his freight. Stating this, therefore, stated nothing material. Suydam v. Marine Ins. Co. (d), 2 Marsh. 601., King v. DeLaware Ins. Co. (e).</p> <p>S. If duly made, the abandonment was waived'by the conduct of the plaintiffs in selling without our assent. Until acceptance an abandonment is revocable. It was therefore in the plaintiffs’ power to waive it, and they did by exer - cising an ownership, incompatible with the abandonment. ■Had the adventure brought a profit, no doubt they would have retained it. It is true they were part owners, to the extent that they were uninsured; but part owners cannot sell the entire property.</p> <p>6. There being no total loss, the only question is as to the extent of the partial loss, which we contend is confined to the average at Plymouth. The disasters in England after the second capture, do nqt concern us for the reasons before stated. Damage to the goods there was none at any time. Freight paid in England which is also claimed, is not chargeable to us; first because it was not due, and secondly because underwriters on goods have nothing to do with the freight. And as to the loss arising upon the sales, that is a loss of market, which, unless it is a cause of abandonment, is nothing.</p> <p>contended that there was a good cause of abandonment, duly exercised, and persisted in.</p> <p>By the capture and carrying into Plymouth, the Berlin decree was brought into operation, and an insurmountable impediment raised to the termination of the voyage at Antwerp. Every thing therefore relative to the clause against prohibited trade, is misapplied, because that prohibition was brought into operation, if at all, by a peril insured against. If the trade became illegal, it became so by the capture; and it can never be permitted to underwriters to take advantage of an illegality induced by an accident for which they are liable. At the moment then when the capture, by means of the Berlin decree, cut off this vessel from its port of destination, it broke up the voyage, it rendered seizure or turning away from Antwerp morally certain, it justified the assured in making an abandonment. It was not fear or apprehension merely; it was not a contingent evil which might or might not happen; the loss of the voyage by this accident was as certain morally speaking, as if the vessel had never been restored by the captors; and though the voyage was prosecuted to Flushing, that it might not afterwards be objected against our claim to an indemnity, that it was the duty of the master to proceed, yet that further prosecution was as hopeless in the beginning as it proved fruitless in the end. Under such circumstances the owner cannot be required to go on. The legal impediment, is as effectual a restraint as actual force. The interest of the underwriter forbids his encountering the consequences of an attempt to surmount it; and his own duty to the power that created it, commands an acquiescence. In such cases the policy is blank paper, if the assured may not abandon; and contrary to the cases cited, there are decisions both in England and the United States which justify an abandonment. Barker v. Blakes (a), Craig v. United Insurance Company (b), Snowden v. Phœnix Ins. Co. (c), Hurtin v. The Phœnix Ins. Co. (d), Symonds v. The Union Insurance Company (e).</p> <p>Under these facts there was a perfect right to abandon. But at the same time there was a right to suspend the exercise of it, until inquiry had been made at or near to the port of destination. At Flushing where the ship cast anchor, she was guilty of no deviation, because that fortress commands the Scheldt, and all vessels bound to Antwerp are forced to pass under its guns. The master reported himself to the commandant, which implies a necessity for casting anchor, and his vessel was immediately put under actual arrest. Ht re was actual physical force, preventing the further prosecution of the voyage, and finally compelling the Vessel, after ineffectual efforts of the consignee to depart. Was it necessary still to proceed to Antwerp? This if not impossible, would have been instantly fatal. To what port was she then to go? The captain was intitled to act for the benefit of all concerned, and to proceed to the most advantageous port. To go somewhere for the purpose of discharge was essential; and although the severity of some English decisions has denied the right, yet it has not been in cases like this, where a peril insured against has defeated the original voyage.</p> <p>At the time of the second capture and detention, then, there was a perfect right to abandon, and sixty days after the intelligence was received in the month of February, brings it > within a short time of the 20th of May. But if this is too late for the causes occurring at Flushing, the disasters in England gave a new right. By this time the Milan and Dutch decrees made every port of the continent impracticable, and confiscation was the inevitable consequence of arrival there. The vessel was injured, and no one was found willing to lend upon hypothecation on a voyage to the continent. The circumstances bring the case precisely to Milles v. Fletcher (a), and justified discharging the cargo. The knowledge of this event, was immediately followed by abandonment.</p> <p>There has been then a peril, or rather a variety of perils flowing from or connected with each other, justifying abandonment.</p> <p>It was duly exercised, because to state that a cargo has been discharged and the voyage broken up, implies that a peril insured against has caused it, or it would not be communicated to the underwriters; and if they wanted further information, it was their business to inquire. Ralston v. Union Ins. Co. (b).</p> <p>It was persisted in, because the same letter which orders the sale negatives the waiver, by asserting the claim upon the underwriters. As part owners, the plaintiffs had a controul over the property, as to their own share at least; and no injury was done by sale of the whole. It was necessary to sell the whole for expenses due by the whole. Whether a waiver of the abandonment or not, depends on the quo animo, which was clearly against the waiver. If however there is not a total loss, there is at least a right to an indemnity, which can only be obtained by paying the general average in England upon both captures, and the loss upon the invoice by the sales, which of course includes the freight paid in London. Not having received the goods at Antwerp, the plaintiffs derived no advantage from the payment of freight; and the payment of it was therefore a loss pro tanto.</p> <p> Cur adv. vult. </p>

<p>HIS was a habeas corpus to James N. Barker, a captain in the United States’ army, to bring up the body of John Butcher, detained in his custody, and to certify the cause of his detainer.</p> <p>The return to the writ stated, 'that the defendant had the body of Butcher before the Court, and that he detained him by virtue of an enlistment as a soldier in the army of the United States on the 17th of August 1812, the consent of his master Philip Le Feme, in writing, having been first obtained.</p> <p>The writ was prosecuted at the instance of Butcher, by the managers of the almshouse and house of employment of Philadelphia, who on the 12th oí .March 1810, had bound him as an apprentice to Le Feme, for seven years, seven months and three days, to learn the art and mystery of a cordwainer, under a stipulation in the indenture, that it was not to be assigned without the consent of the managers for the time being. At the time of the enlistment, Butcher was between fifteen and sixteen years of age.</p> <p>contended that the enlistment was void for three reasons. 1. Because the act of congress of the 11th of January 1812, does not permit the enlistment of minors under the age of eighteen. 2. Because if it does, it is under the condition of the consent in writing of the parent, guardian or master; and by the terms of this indenture, the master could give no consent. 3. Because by the common law such a contract by an infant is void; and. "congress cannot give it validity.</p> <p>1. The eleventh section prohibits the enlistment of any person under twenty-one, without the consent of his parent, guardian or master, in writing; and gives the sum of two dollars to the commissioned officers in the recruiting service, for every able bodied man they may enlist between eighteen and forty-five, with a proviso that the regulation as to age shall not extend to musicians, or to soldiers who may re-enlist. That is, they may enlist them as musicians and not otherwise, under eighteen, and may re-enlist soldiers above forty-five. Musicians must be enlisted specifically as such, for they have higher pay than the privates. Butcher was enlisted as a common soldier.</p> <p>2. The master had no authority to give consent. His was not the general power of guardian or parent, nor even the ordinary power of master. He could not assign to another mechanic, because it would have been against his covenant. His right to the boy’s service was special, and connected with a continuance in the original employment. The moment this right to service was assigned, the indenture ceased, and the apprentice became free. What is consent to an enlistment, but consent to a transfer of service, in other words, to an assignment? Congress call for the consent of him who has a plenary controul over the service of the minor. The master had not. The managers themselves had.not. They are to put out to some trade or calling, which no one can suppose includes the trade of war. The commonwealth alone is the guardian of this boy, and has the complete right to dispose of his service.</p> <p>3. The contract as to the minor, is clearly void at common law. It therefore does not bind in the present case, unless congress have a constitutional right to remove the disabilities of infancy or coverture, and to make children independent of their parents, and wives of their husbands. No such power has been given by the states. They may raise armies from among the adults. They cannot shake a principle of the common law of the states, in relation to the personal disabilities of infants. These are privileges, not defects; and congress cannot take them away.</p> <p>1. That no act of congress contained any limitation of age, under which a minor should ot be enlisted. If musicians may be enlisted under eighteen, so may every soldier of the army; for musicians are without exception enlisted as soldiers, that being the generic name of all who are enlisted, and the distribution into musicians, non-commissioned officers and privates, cavalry, infantry, and artillery, being a matter of subsequent arrangement. It follows from the authority to enlist persons under eighteen for musicians, that there is an authority to enlist them as soldiers. The eleventh section speaks of the age, merely with reference to the compensation of the recruiting officer, not with reference to his authority. All that i,¡ prescribed on the subject of age by any act of congress, is, that if under twenty-one, there must be the consent of the parent &c. Act U. S. 16 Mar. 1802. 6 U. S. Laws 17., Act 12 Apr. 1808. 9 U. S. Laws 91.</p> <p>2. In permitting enlistments under twenty-one, congress have taken care to do no violence to private rights. They suppose every minor to have a parent, guardian, or master, who has an interest in, or is entitled to dispose of, his service; and if no wrong is done to them, there is no wrong. Who was entitled to the service of Butcher? Not the managers, for they executed their power by the indenture. The master alone had a full, absolute right, to the service of the boy till twenty-one. His inability to assign is nothing. The United States do not claim by assignment or transfer. They claim by the contract of the boy, his master consenting that his private rights shall not stand in the way. Suppose the guardian to consent: does he assign, or transfer? No, his consent is required, to shew that he withdraws any claim that he may have; not that he conveys or transfers it.</p> <p>3. The right of congress to authorise the enlistment of minors under these circumstances, is plain, from the terms of the constitution, and the practice of all the states. They have power to raise armies, constituent parts of which, under the practice of every military state, are boys. They are wanted particularly in the musical department; and the power to contract for this, implies the whole. In every section of the union, military duty is required from eighteen to forty-five. Every where then the law disregards minority upon the question of military service. And the argument 'therefore is, that what a minor is bound to do in this respect, by his natural allegiance and the laws of his state, congress cannot authorise him to bind himself to do. The act of congress takes away no right; it merely communicates a capacity, which we are bound to suppose is not injurious to the minor, which we know is essential to the country, and to the exercise of a right granted by the constitution.</p>

IN this suit, which was brought to July Term 1812, the Commonwealth obtained a judgment in this Court on the 3d instant for 4050 dollars, with such stay of execution as the Court might order. Read for the defendant, now moved for a stay of executlon unt'd ^ return day in July next, that being twelve months from the first day of the term, to which the original Process was returnable.

IN ERROR. THIS was an action of account render, brought by Crou- •>» • • i r> ni r 71/ ■, j.ni.v. si Hat in the Common Pleas of Philadelphia county. After judgment quod computet, auditors were appointed, who on the 16th of October 1810, reported an account between the parties, and also awarded, m conformity therewith, that the sum of 4394 dollars 66 cents, the balance of that account, was due from the plaintiff to the defendant, witn interest from the 17th of April 1810.

<p>rY~,HIS was an action of indebitatus assumpsit, in which the 1 plaintiff declared for money paid laid out and expended, money lent and advanced, money had and received, and work, labour, and services. It was tried before Teates J. at a Nisi Prius in December last, when a verdict was found for the plaintiff, damages 3500 dollars; and upon a motion by the defendant for a new trial, his honour reported the r . , . . r ii facts to be as follows:</p> <p>On the 4th of August 1804, the plaintiff, who was then about to proceed to Cape Francois upon commercial busi- . , . .ir, r ness, received from the defendant a power of attorney to demand from Suckley and Co. at the Cape, who had been the defendant’s agents, all his goods remaining unsold in their hands, and to settle by compromise or in any the plaintiff thought most beneficial, all accounts of the defendant with that house. On the voyage, the plaintiff, in ... , , . -r, , , consequence oi being chased by a Prendí privateer, threw overboard, among other papers, the power of attorney. He stated this fact to Suckley and Co. upon his arrival, who consented to deliver up the goods, upon his promising to pay a balance which they alleged to be due from the defendant; and this being assented to by the plaintiff, they , , , ,. , , „ . . ... ceeded to deliver the goods. Before the delivery was píete, one Thomas Richardson attached them with other goods of Suckley and Co., to secure a debt due by them the house of Knipping and Steinmetz of Charleston, for . . , . whom he was agent. 1 he plaintiff interposed a claim on behalf of the defendant; and on the 26th of November the Chamber of Justice decreed that he should retain session of the merchandize, on his entering into a , ,. , , sanee in the sum of 2089 dollars, conditioned to produce within four months an authentic letter of attorney from / defendant, or on default to pay Richardson as the agent the Charleston house, the said amount, which was the 7 . value of the merchandize. The recognisance was given the 30th of November; and on the 6th of December folio .-, the plaintiff personally appeared in the jfek’s office of tfr* Civil Tribunal where it was entered, and^wed an act to be made, setting forth, that his recogmsafl^B; submission in November should be null, as. he had the power of attorney, and notified it to Richardson. W^^ftiember 1805, the plaintiff having sold the goods. fon^^H} an account current to the defendant, making thenett^^S>e 2509 dollars 60 cents. On the 1st of December by letter directed the defendant to pay over to a his funds, after deducting the balance due to h'tmselí'Sffllón the 19th of April 1806, having had some misunderstal^gg with the defendant, he wrote his final letter, closing hi^Rrrespondence,.and declining any fur* her concent witAHh. Up to this time Dessalines was emperor, and fatouréqMÉe plaintiff.</p> <p>In March 1808, the powers of government»- the Cape being in Christophe, who was the friend of RitMkdsan, and the plaintiff continuing to reside as a merchant at the Cape, Richardson instituted a suit against the plaintiff in the Tribunal of Commerce, to recover from him the value of the goods, which by the decision of the Chamber of Justice had been decreed to him as the defendant’s agent in 1804. The amount of the claim was 3000 dollars, which by a memorial presented by the plaintiff to the tribunal, (no part of the record of this court being produced) appeared to be founded on an alleged promise of the plaintiff to pay so much for Suckley; but, in the memorial the plaintiff denied tiie-promise, assorted that this was no other than the transaction about the security to produce a power of attorney, that he was no longer an agent for Lyle, and had settled the matter with him, and that Richardson was endeavouring to make them change the just and wise decision made more than three years before. On the 14ih of May the Tribunal of Commerce gave judgment for D’Arcy. Richardson appealed to the Civil Tribunal of the first district of the province of the North, sitting at the Cape. That court on the lstof June confirmed the sentence of the lower court. Richardson had previously applied to the president Christophe, who interfered in the proceedings, and on the 31 st of May sent an order for the imprisonment of D’Arcy’s lawyer, who was tied and sent to the fort. To this another order succeeded, that D’Arcy and Richardson should fight each other, and that the issue of the combat should be fatal to one or the other. A friend of UP Arcy waited upon Christophe, remonstrated " against the order, and procured the commander of a British vessel of war then in the harbour, to do the same; but the president insisted upon the combat, unless U’Arcy would pay to Richardson the sum claimed as the value of the goods. UP Arcy having determined not to pay the money, the parties met, but neither of them was injured. On the same day another order came from Christophe, that D’Arcy and Richardson should again fight at six o’clock on the following morning, and that he, Christophe, would be there himself to see the affair settled. The friends of UP Arcy, deeming it dangerous for him to remain longer at the Cape, prevailed upon him to attempt his escape; but he was intercepted by the president’s order. The same friends then advised him to pay the money, and preserve his own life, that of his lawyer and the judges, all of whom were in danger from the parts they had taken. The plaintiff still refused. About dusk of the same evening Christophe sent for D’Arcy, and had a conversation with him, the purport of which was not in evidence; but on the next day, after the judgment of the lower court had been confirmed, D’Arcy in open court retracted his defence, GonsfiQted that both judgments should be reversed, that his memorial should be burnt by the public agent, and that he should be condemned to pay Richardson the 3000 dollars he claimed, and the costs. He retract-' ed his oath also, that he owed Richardson nothing, because, as the record of the court set forth, Richardson had sincé made him remember some facts his memory did not furnish him when he took the oath. The court accordingly reversed the judgments, condemned D’Arcy to pay Richardson the 3000 dollars, u for so much he had engaged to pay him for “ Suckley ánd Co., for merchandize which the latter had delivered to him as belonging to Mr. James Lyle, whom “ the said U’Arcy represented, for which the tribunal, do “ reserve to Mr. U’Arcy his rights, that he may prosecute “ the same if he thinks proper against Lyle or Suckley.” On the 22d of June, U’Arcy paid the 3000 dollars and the costs.</p> <p>that if they were satisfied the plaintiff individually promised to pay Richardson the 3000 dollars, he could not recover. But the record shewed, 'that there was a review of the suit in 1804, respecting the goods of the defendant received from Suckley and Co., as the judgment referred the plaintiff to the defendant for compensation. The plaintiff was in no fault; he stood out until the safety of all concerned in the business was endangered. He did not pay voluntarily. The jury must decide whether the loss aiose from his private engagement, or from his having received the goods as agent of the defendant. If they were satisfied that the money was extorted from the plaintiff as the defendant’s agent, he might recover under the count for money paid to the defendant’s use. A loss of money incurred by the agent without fault, ought to be compensated by the principal.</p> <p>The motion for a new trial was argued at December term last. ” ■ ■ i</p> <p>argued, that there should be a newsjrial, because, 1. The defendant was in no manner bound to answer for the loss incurred by the plaintiff. 2. There was no count upon which, if a recovery was just, the plaintiff could recover what the jury had given him. 3. The verdict was excessive. ■)</p> <p>1. The agency of the plaintiff for the defendant ceased in the year 1805. He remained in St. Domingo after that time, for his own business; voluntarily exposing himself to the tyranny and outrages of the black government, and finding an indemnity for this exposure in his own emoluments. The loss which accrued in 1808, was therefore not incurred in the course of the agency, but was the effect of an outrage committed upon his property intentionally detained within the reach of the wrongdoer, to which the defendant was in no respect accessary. Take it first upon the ground of a promise actually made by the plaintiff when he received our goods, to pay Richardson 3000 dollars on account of the debt due by Suckley and Co. It was a promise never communicated to or sanctioned by the defendant, and which most obviously transcended the agent’s powers; for the amount to be paid, was greater than the value of the goods, and not a shadow of authority was given to make any contract with Richardson on behalf of the Charleston house. Nixon \¿ Hyserott (a). But this promise was a fiction. The transaction with Suckley and Richardson closed with ;he produc-' tion of the power of attorney. The suit in 1808 was instituted under the patronage of Christophe, not as an appeal from or review of the prior suit, for in none of the proceedings in 1808 is the decree or judgment of 1804 either reversed or questioned, but as a new .action, depending for its success upon despotic authority, regardless alike of law and morality. Take the case then upon the ground not of promise, but of an outrage’committed under the coercion of despotism, it is a qualified robbery of the plaintiffown property, for which he can have no recourse to us, without destroying commercial security, and putting every merchant in this country who has ever employed as his agent a resident in St. Domingo, at the mercy of the despots who rule that island. The consequences of such a doctrine may be terrible. An agency has closed, or expired. The agent is no longer in the confidence or employ of his former principal. His former principaUsldead, and his property is distributed. A suit is commenced against the agent in Algiers, in Turkey, or at the Cape, and under the threat or the asserted threat of death, he is made falsely to acknowledge a promise, upon a matter said to be connected with his former agency, and to confess a judgment to an extent beyond all that his principal was worth. Is it possible to say that such an agent can recover his loss from the principal, without destroying hereafter that relation among men? It is not our property that has been taken; it is not in the course of an agency for us, that his own property has been taken; it is. the case of an extorted promise under at most a mere.colour of continuing agency, the whole from the foundation a tissue of falsehood and outrage, and the judicial proceedings the mere machinery of robbery. All writers upon the subject of mandatary contracts, agree that in such a case there is no recourse to the principal. The mandant is obliged to replace to the mandatary, all reasonable expenses disbursed bona fide, and the damage sustained by him in the execution of the mandate. 2 Ersk. Inst. Bk. 3. sec. 38. p. 534. The agént ought to be repaid whatever charges he has been at in the execution of the commissioi|;t and the same holds good of any loss that happens by reason of the trust, but not of such a - loss as is occasioned obliquely by it, as if he had heen plundered or shipwrecked. Puff. lib. 5. cap. 4. sec. 4. p. 482. When an agent undertakes a hazardous business, as every business in St. Domingo is to an American merchant, he takes the risks on himself. Ibid. If he suffers damage on account of the affair which he has taken in hand, we must judge by the circumstances, on whom the loss must fall. It wiJl( depend on the| quality of the order to be executed, the danger, the (nature of tírele vent which occasioned the loss, the connexion between the event and the order that was executed, the relation which the thing lost or the damage sustained, had to the/ affair which was the occasion of it. 1 Domat. Bk. 1. Tit. IS. sec. 2. art. 6. If a person undertake to go for another to a place where his own business obliges him to take money with him, and he is robbed of it, the person who engaged him to make the journey is not liable for the loss. Ibid, note to art. 6. The agent may be a sufferer in his own person or property by the business he undertakes, as where one goes a journey and lames his horse, or is hurt himself by a fall on the road; but he cannot recover unless by express stipulation. 1 Palefs Mor. Ph. ITS, Bh. 3. ch. 12. He may demand reparation for such losses only as are the wa/t¿raiüQ,us£quence of his agency. Burl.pt. 3. ch. 12. sec. 2. 1 Hub. 367. Non omnia qua impensurus non flit, mandator imputabit, veluti quod spoliatus sit á latronibus, out naufragio res amiserit, vel languore suo, suorumque adprehensus, quadam erogaverit; nam hac magis casibus, quám mandato imputari oportet. Dig. lib. 17. Tit. 1. sec. 26. art. 6. The distinction is then between those losses which grow naturally out of the agency, and such as are qasual,-or as Puffendorf terms them, oblique, not flowing directly from the execution of the mandate.. For the latter, vvhich is the character of the plaintiff’s loss, the defendant is not liable. There is also a strong equitable reason why in the present case, he should not be; for although he may recover from Richardson, we cannot from either Richardson or Suckley.</p> <p>2. The only count on which he can recover, is the equitable count for money had and received; but we have never received with interestamore than 2000 dollars; the nett pror ceeds of the goods, deducting the balance paid to Suckley and Co., and the outstanding debts, being but 1627 dollars.</p> <p>3. Upon the same ground the damages are excessive.</p> <p>The authorities cited for the defendant on the important question in this cause, will not be controverted. They , prove by the clearest implication, that a loss growing.out of the agency, without the fault of the agent, is to be borne by the principal. The rule is distinctly stated and illustrated by Heineccius. The person giving a commission, is obliged to restore useful .and necessary charges, and bound to repair all damages t liatón ay have been incurred for his sake, or on account of managing his affairs, without the fault of the agent. 1 Turnb. Heineccius 269. lib. 1. cap. 13. sec. 349. The same principle runs through a variety of cases, in which the relation of the parties is analogous to that of principal and factor. If a trustee is robbed of the trust-money, he is entitled to an allowance. 2 Fonbl. 177. If a partner who is travelling on business of the concern, is wounded or' robbed, the common stock must make it good. 1 JDomat. 159. lib. 1. tit. 8. sec. 4. art. 12., 2 Ersk. Inst. 528. Fuff. 279. bk. 5. ch. 8, note by Barbeyrac. Partners are agents for each other; and they derive their indemnity under such circumstances, from their acting at the time as agents for their house. It is the plainest equity, and the merest justice, that the agent should be indemnified; and if ruin must follow, it is better that it should fall upon him who was to reap the profit, without being personally exposed to the injury.</p> <p>Consider this case then either as a regular judicial proceeding, founded on a real promise, or as an act of force springing from despotic power; in either point of view, the defendant is answerable. If a real promise, the plaintiff had authority to make it, for he was empowered to settle the account with Suckley and Co. by compromise, or in any other way, and of course to promise, as a means of obtaining undisturbed possession of the goods, to pay their debt to Rick~ ardsoris friends at Charleston. Setting aside the idea of a promise, then it is most clear, that the final act of force was. applied in a suit growing out of, and connected with, the original proceeding. The jury have negatived all individual liability by the plaintiff to Richardson, and therefore we must take the asserted liability to have been as agent. This ' is the first step. The next feature in the case, is Richardson’s intention by the suitto defeat, if not reverse, the .judgment in 1804. The records are imperfect. The situation of the country prevents perfect copies from being obtained. But enough appears in the plaintiff’s memorial or defence, to shew the connexion, because he says that it was Richardson’s endeavour to make the judges “ change their already wise and just “ decision,” and “ who could suppose that the repose of so (l honourable a decision should be disturbed after the lapse of “ morevthan three ypSrjj.” If the money had not been paid over by thoplkintiff to th|-de%idant, it would have been impossible for the latter to recover, against this proceeding at Hayti; and where is the difference between the inability to recover, and the obligation to refund? Where would be the difference, between Christophe’s seizing the goods in the hands of the plaintiff, and compelling him to pay money on account of those goods after they were sold? If an agent advances money to the principal, and the goods are burnt: — or after the agent has sold and accounted for the goods, a suit is brought against him by third persons claiming the property, and obtaining a judgment: — or while the goods are in his hands, a suit against him for them is decided in his favour, he then sells and remits, and upon appeal the first judgment is reversed, and judgment rendered against the defendant:— what difference is there between any of these cases, and the ’ present, in which the first judgment was in fact reversed, in a proceeding which was intended to have that effect? In one and all the agent is entitled to an indemnity. It is true the act of Christophe was an outrage of the grossest kind. But we are not to criticise such acts by the rules of our own code; it is enough that the plaintiff did not yield a voluntary assent to it, that he resisted until resistance was fruitless, and certain death the consequence of continuing it; and that it was a consequence flowing from the agency, and which could not have existed but for the agency. It is said the plaintiff was not agent at the time. This is begging the question. He was agent quoad hoc, if the second proceeding grew out of the first; and it is of no importance whether actual agent or not, if the loss was the consequence of the agency. The material fact is, that Richardson’s claim did not originate in a transaction subsequent to the agency. It is also objected that the plaintiff continued to reside at the Cape, after the agency ceased, and that it was his own property that was exposed. To make this of any consequence, it must have been a fault in him to remain there: he was under no obligation to remove. It is said too that this loss was the result of one of the risks attending the agency, which he knew and took upon himself. In no respect does it deserve the name of a casualty. It was a consequence of the agency, produced by the will of those among whom the commission was to. be executed. Finally it is^objected that we can recover against Richardson, and the defendant cannot. This also begs the main question. If we paid as agent, and paid for the defendant, he may recover, and not we. But it is no reason for turning us round, be the law as it may.</p> <p>2. The action may be supported upon either of the counts. We have recovered no more than the principal, interest and expenses, and this was the least we were entitled to. 2 Com. on Contr. 1. 138. 159.</p> <p>3. For the same reason the damages are not excessive.</p> <p>Cur. adv. vult.</p>

HIS action was brought to July Term 1811, upon a promisory note for 568 dollars 60 cents, drawn by the defendant on the 29th of August 1810. Bail was entered on the 16th of August 1811, a declaration filed on the 16th _ * 2 , October following, and on the 4th oí November 1812, ment was signed for want of an affidavit of defence,' according to Rule 79 of this Court. * Levy for the defendant now moved to open the judgment, on the ground that the’ defendant was an infant.

<p>THIS was an action of trespass vi et armis, for breaking and entering the close of the plaintiff, and taking away twenty-nmtí pipes of Madeira wine. The defendants pleaded not guilty, and a special justification under a writ of domestic attachment, at the suit of Alexander Burton against Robert Morris, junior, which was executed by Barker as sheriff, and the other defendants as his assistants.</p> <p>Upon the trial of the cause, which took place before the Chief Justice at a Nisi Prizes in February last, it was in evidence that Robert Morris, junior, in whom the general property of the wine was, was indebted to the plaintiff in the sum of 14,800 dollars, upon eleven promisory notes, drawn in the spring and summer of 1806, at 60 and 90 days. The plaintiff claimed a special property in the wines, under an asserted bailment by Morris, as a security for this debt. The sheriff took them out of his possession on the 12th of August 1806, in virtue of a domestic attachment against Morris, by whose testimony it appeared, that the wine was pledged to the plaintiff by a written agreement, (not produced on the trial) till certain notes of Morris should be paid; that these notes were less in amount than the first cost of the wine; and that there were afterwards other notes of Morris in the hands of the plaintiff, for which the wines were not pledged.</p> <p>It was upon this evidence, that the only point now material arose; the. defendant’s counsel contending that the plaintiff could recover no more in damages, than the amount for which the wines were pledged, which it was his duty to shew precisely; but the Chief Justice in'his charge instructed the jury, that if they were satisfied the plaintiff had a special property in the wines, they might give damages to the full value, and interest from the time they were taken away. The jury found a verdict for the plaintiff 8821 dollars 8/ cents damages, being the full value of the wines according to the plaintiff’s estimate, with interest from the time of the attachment to the day in bank, and including one hundred dollars lor the trespass. The defendant moved for a new trial upon the ground of misdirection.</p> <p>contended, that the direction was wrong. The measure of the plaintiff’s damages, was the injury sustained, which could not exceed the amount for which the wines were pledged, and the damage done by breaking his close. Where goods are taken, from a- bailee in consequence of his own negligence, he is answerable over, and in such case there may be a colour for giving him the full value. But they were taken here by pro-" cess of law, and he is not chargeable over. His right to damages is therefore only commensurate with his personal loss, which it was incumbent upon him to shew, without putting the burden of proof upon us. What would he have recovered, had the trespass been committed by Morris? Certainly no more than the sum secured.' The defendants are Morris. They represented his general creditors who succeeded to all his rights. The same rule ought to be applied to their case. In a suit by the auditors against the plaintiff, for the excess; , it will not appear how the jury formed their verdict, how much they gave for the wine, and how much for the trespass. They cannot therefore fix the surplus value recovered by him, beyond the amount of his security.</p> <p>answered, that the sheriff did not represent the rights of Morris. The auditors are his representatives, and alone have the right to redeem the property he has pledged; at the time of this trespass, no auditors were appointed, and the sheriff was a mere stranger. As between the pawnee and a stranger, the former may recover the whole value in trespass,, and is chargeable over for the excess. He has no right to settle his account • with the pawnor in an action against a stranger. It would be inconvenient, and the pawnor would not be bound by it. The right of the pawnee to recover the whole value, is' founded upon his obligation to deliver up the chattel upon lawful demand, and tender of the money due. His rights against a stranger are co-extensive with those of the pawnor. 2 Black. Com. 453. There is no difficulty on the part of Morris or the creditors, because all they will have to shew is the value of the wine, without regard to the verdict; and the account must be settled upon that basis.</p>

<p>IN this case, Sergeant for the defendants, obtained a rule to shew cause, why a fi.fa. issued by the plaintiff’s attorney should not be set aside. '</p> <p>The action was in case to December Term 18Í1, and referred to arbitrators at the instance of the plaintiff, on the 26th of May 1812. On the 17th of September following, a report was filed, awarding to the plaintiff 10,000 dollars with costs. On the 21st of September, the defendants made the requisite affidavit that the appeal was not for the purpose delay, paid the costs, and with sureties entered into a joint and several recognisance of bail before Mr. Hennessy, the commissioner, who entered the appeal on the docquet. On the 23d, Phillips, the plaintiff’s attorney, excepted to the bail. the 28th additional bail was entered. The attorney excepted to the additional bail; and on the same day the additional and the sureties m the first recognisance, made oath before the commissioner, that each was worth 7000 dollars, clear of , . . - ’ . debts, &c., and notice was given to Phillips that the cognisors would answer on oath to any questions he might put to , _ , r ^ , 1 \ . ° 1 , them. On the 6th of October, another recognisance of bail was entered into before the commissioner, by another surety, ' j j * who made oath in the same manner, that he was worth 20,000 dollars, and like notice was given that he would an- . , _ . ° , , . . swer any questions on oath. On the same day the plaintiff’s attorney excepted to this bail, but did not propose any ques- ’ , ‘ , 7 , ' ■ / u tions. On the 16th of October the execution was taken although the.attorney was previously warned of his irregu!arity.</p> <p>The exceptions taken to the appeal, and in support of the execution, were four. 1. That the defendants never entered an appeal, because they did not declare in writing, and file it i- ,, 7 7-7 , —r77 , . of record, that they did appeal. 2. I hat the recognisance of bail was irregular, as the defendants joined with the sureties; and the act of the 20th of March 1810, directs that the pellant shall produce one or more sufficient sureties, xvho i 77 . • • 0 „ , . . shall enter into a recognisance sc. 3. i hat the commissioner of bail bad no authority to take the recognisance, because the same act required that the sureties should enter into a recognisance with the prothonotary. 4. That the bail did not justify either according to the common law, or the rule of this Court, which requires it to be done in open court, either by affidavit before the commissioner, or one of the judges.</p>

THIS was an action of covenant upon a policy of insurance dated the 8th of July 1797, for 9500 dollars, on a quantity of indigo on board the Brig Rosina, at and from New Orleans to Philadelphia, New York or Baltimore, at a premium of ten per cent.

IN ERROR. BY a bill of exceptions signed by the Judges of the District Court of the city and county of Philadelphia, it , , , . , , . peared that this action was brought upon a'promissory note drawn by one Delabourdine, on the 12th day of December 1809, and payable seventy-five days after date without defalcation, to Holme, the defendant below, who was sued as . , indorser. .Before the trial, the attorney of Holme gave notice to the plaintiff, that proof would be required…

' IN ERROR. was an action of debt in the Common Pleas of . Philadelphia county, to recover the sum of 74 dollars 66 cents, being one year’s interest at seven per cent, upon the sum 400^’ c^e interest of which was bequeathed to the wife of Golding, the plaintiff below, by her father Joseph TCnu Upon the trial of the cause, the plaintiff proved that Joseph Kay died on the 12th of December, 1.806; that he had before made his last will, dated the 21st of February, 1805, in New…

THE case under which this cause was decided, stated in . . . substance that William Wister, by his last will dated the 15th of January 1800, devised and bequeathed inter alia, in the words following: “ I give unto the four children of my nephew James “ Miles deceased, namely Catharine, (the plaintiff) Samuel, “ William, and James, the sum of 400i. specie to each °f “ them; which sums I direct to be placed out on interest “ at the expiration of two years after my decease, for…

r | NIIS was a Certiorari to the Quarter Sessions of Delaiware county, to remove all proceedings on the tion of Samuel Davis and Owen Rhoades, to have adjudged the damages occasioned to them by laying out through their land respectively, a turnpike road from Philadelphia by Ford, on Brandywine, to the line of the state in the towards Baltimore.

N motion of Delaney, a rule was granted at a former day upon the defendants, to shew cause why a man~ damns should not issue to restore William M. Stewart to the stanchng and rights of a member of the Philanthropic Society.

in ERROR. tj y a fom 0f exceptions in this case, which was an action ■ B * * * • • of assumpsit in the Common Pleas of Philadelphia county, it appeared that the piomise was proved by .one Rye, a witness called by the plaintiff Connery; after which the plaintiff’s counsel said he had finished the examination, , , , . „ , and had no more questions to put. Bye was then cross-examined by the defendant’s counsel, and declared that the was made on a Sunday.

THIS was a^'habeas corpus to bring up the bodies of several prisoners, who, as it appeared by the return, were confined in the common gaol, under sentence by the Quarter Sessions} to be imprisoned a certain time, to pay fine, which in each case was under five pounds, and to pay the costs of prosecution. They had all remained in confinement thirty days after the term adjudged for their imprisonment, but had not paid either the fine, or the costs.

r a ,'HIS was an appeal from a pro forma decree of the Orphan’s Court of Philadelphia county, The aPPebee; who was administrator of Philip Toner, filed his account in the register’s office; and the auditors to whom it was referred, found a balance in his hands of 10,233 dollars 38 cents, of which 2233 dollars 38 cents was“ passed to the credit of Toner's estate, and 8000 dollar credited to the appellee as retained by him, undt r the circumstances hereafter stated.

IN ERROR. THIS was an ejectment in the District Court, for a tnessuage and lot in the city of Philadelphia. The title to the premises in question, was on the 5th of April 1806, in Mary Bell, the wife of Howell, the below, who on that day, in consideration of 200 dollars, executed and delivered to Ann Dolan, an absolute deed of the property in fee simple.

IN a case which was submitted for the opinion of _ . , , , , r , r , . Court, it was stated, that the defendant, on the first of September 1811, leased of James L. Fisher, for five years, brewery and the appurtenances, at an annual rent of 1200 dollars, payable quarterly, without any deduction on count of rent charges or taxes, which the lessee covenanted to pay himself, together with the taxes upon a lot not eluded in the lease.

<p>Under the arbitration law of March 1810, executors are entitled to an appeal without entering into a recognisance, paying costs, or making an affic'av*t'</p>

<p>If a person is committed to prison bv a justice ofthe peace or a judge of «i st-Rtc court» for an offence against the United States, this Court may issue a habeas corpus, and discharge him altogether, bail^miless^eis chargeable with an offence _ pumshable with death, in which c^se.they cannot bail.</p>

r S ''HIS was a habeas corpus directed to the defendant, to ^ brinS UP the body of one John Boyer. ' By tbe retum h appeared that the prisoner was held in custody, under a warrant of commitment by Michael Frey tag, a jusdce °f tbe peace in Moyamensing, who had adjudged him to hard labour for one month, on a conviction before him of beinS an idle disorderly vagrant, contended that there was no authority in the law for this conviction, the act of the 8ih of February 1766, 1…

THE petitioner was committed to the debtors’ apartment, by execution from the District Court for the city and county of Philadelphia, returnable to the next September term; and on a previous day of this adjourned court, he presented his petition for the benefit of the insolvent laws. He was now brought up for a hearing.- objected, that this Court had no authority to discharge, 1.

rI ’HE Court, upon the application of Joseph Lee, granted a habeas corpus to the defendants, to bring up two female children, his daughters, in their custody; and they were accordingly brought into Court, under the care of then-mother, Barbara Addicks, with whom, as was stated in the return, they had lived ever since their birth.

IN ERROR. THIS was a writ of error to the Common Pleas of Philadelphia county. By the record, it was an action of replevin for goods distrained for rent. The attorney of the plaintiff, Ancora, indorsed on the writ the sum of 87 dollars and 50 cents, as being the defendant’s claim for rent; and the sheriff, by his return, replevied and delivered the goods to the plaintiff.

<p>THIS was an action upon a policy of insurance, underwritten by the defendants on the 12th of May upon the brig Mary and' her freight, at and from Philadelphia to St. Bartholomews, 4500 dollars on vessel, valued , , , - . , that sum, and 1500' dollars on freight, valued at that sum. The cause was tried before Teates T. at a Nisi Prius T ir, . r ... December last, when the following facts were in evidence,</p> <p>. . The Mary sailed from Philadelphia upon the voyage sured, on the 30th of April 1809, with, á cargo consisting principally of corn meal and flour, consigned to the master, who was instructed to proceed with it to St. Barts, and to purchase with the proceeds a cargo of such sugar and coffee as might he lawfully imported into the United or bills, if a cargo could not be obtained. In the of the voyage, the vessel encountered severe gales of wind . . ° which did her great injury, and finally compelled her to bear away for Kingston in Jamaica, where she arrived on thé second of June. A survey was i mmediately held, and the surveyors reported, that the repairs necessary to make her seaworthy, would cost more than she would be worth when repaired. The master directed inquiries to be made for a vessel to carry on the cargo to St. Barts; but none could be found, except a small Swede: that was unable carry more than half the Mary's cargo, and the freight demanded for her was so exorbitant, that he was induced to 1 decline chartering her. X,n consequence of these events, the brig was condemned, and together with the cargo, sold for the benefit of all concerned, sometime before the 19th of June, and the proceeds paid to the master. The cargo brought less than the prime cost. The plaintiffs abandoned to the defendants on the 20th of July 1809, as soon as they received advice of the loss, and on the same day they also abandoned to the United States Insurance Company, were underwriters on the cargo.</p> <p>The only question made at the trial, was as to the sea-1 worthiness of the vessel; but to meet the point that now came into discussion, the following agreement was entered into by the parties:</p> <p>“ It is agreed, that if a verdict be given for the plaintiffs in this case, it shall be for the whole amount claimed on vessel and freight, with liberty to the defendants to move for a new trial; and if, upon such motion, the Court shall be of opinion that the defendants are entitled to a pro rata freight, the amount of such pro rata freight shall he tried and determined in a suit brought by the same plaintiffs against Israel Pleasants, President of the United States Insurance Company; and the said defendants shall be entitled to retain the amount of the freight insured, say 1500 dollars, until the said question shall be determined, and shall be bound to pay such proportion thereof to the plaintiffs, if any, as shall be over and above the amount allowed by the jury for the pro rata freight.”</p> <p>The jury having found for the plaintiffs, the defendants’ counsel moved for a new trial.</p> <p>A pro rata freight is due, upon principles of equity, and of the marine law.</p> <p>It is contrary to natural justice, which is the foundation of equity, that labour should be performed without compensation; and it is manifest in this case, that an expenditure of money and labour has been incurred in the transportation of the goods, almost, if not quite, equal to that which the voyage to St. Bartholomews could have required. Nothing more than this can be necessary to lay a foundation for a recompense to the carrier. But there is also a service performed, which completes the obligation of the shipper to pay; for it is unquestionably a service to deposit the goods at a port nearer to their destination than they were at the port of departure; though what was the extent of it here, it is unnecessary to say. The inquiry at present, is not who is to pay freight, nor to what amount, but whether any freight was earned; if it was, the defendants are by the agreement entitled to the benefit of it. The contract, it is true, is not performed, except by the delivery at St. Barts; and upon the footing of that contract nothing can be claimed. But there are even by the common law, implied exceptions to all positive contracts, and it is peculiarly the province of equity to sustain them. 1 Rep. 92., 1 Dali. 212., Bull. 109., 1 Eq. Abr. 379. pi. 7. Where a party is prevented by inevitable accident from completing his contract, where he is guilty neither of fraud nor of negligence, and where in the part performance he labours or expends money for the benefit of the person who employs him, the original contract, particularly a commercial contract, cannot, upon principles of equity, stand in the way of a remuneration pro tanto.</p> <p>The marine law has accordingly proceeded upon this basis; and from the earliest day at which we have any records of it, has asserted the rule, that where, without any fault of the master, the vessel is driven into an intermediate port, and is there forced to break up her voyage, freight pro rata is due. By the laws of Oleran, if a ship be disabled, and the merchants require their goods, the master “ may, if “ he pleases, deliver them, they paying freight for the part of “the voyage that is performed,” Art. 27. 32. 42, which shews that they cannot have them without paying. By the laws of Wisbuy, “ if the accident did not happen by any “ fault of the master, then the freight shall be paid him.” Art. 37. Roccus says, “When goods have been'conveyed “ a part of the voyage, equity directs that freight be paid “ for that part of the voyage on which the goods have been “ conveyed, and to that extent payment must be made.” Note 81, de navibus, for which he cites John de Hevia and, Straccha. By the Ordinance of 1681, “ if the master cannot “ find a ship to carry to the place agreed on, the goods pre- “ served, he shall only be paid his freight in proportion to “ what he has performed of the voyage.” And by the late French Code de Commerce, “ if the master has not been able “ to hire another vessel, the freight is only due in proportion “to the voyage performed.” Art. 296. This,is one and the-same principle speaking in all the most celebrated codes of marine law, and applies with great strength to the present case, which is precisely that referred to in the two last men-, tioned codes.</p> <p>In Lutwyche v. Grey, as stated by Lord Mansfield in Luke v. Lyde (a), a pro rata freight was decreed, though the master declined carrying the goods from Youghall to Glasgow, the port of destination. In Luke v. Lyde, Lord Mansfield, who investigated the subject profoundly, sums up all the authorities by saving, “ there can be no doubt but that some freight was due, for “ the goods were not abandoned bv the freighter,” to the master, of whom he was then speaking. “ If he abandons “ all, he is excused freight,” and not otherwise. In Baillie v. Modigliani (a), which was the case of a capture and sale of the goods at an intermediate port, the same judge pronounced the opinion of the whole court, that “ as between “ the owners of the ship and cargo, in case of total loss, no “freight is due; but as between them no-loss is total where “ part of the property is saved, and the owner takes it to his “ own use. In this case, the value of the goods was restored “ in money, which is the same as the goods, and therefore “freight was certainly due pro rata itineris.n In Mulloy v. Backer (b), the reason of the rule is stated by Lord Ellen-borough to be, if not the service rendered to the owner, the labour performed by the master in his service; and in none of the late English decisions is Luke v. Lyde, the leading case in this branch of the law, in the least shaken.</p> <p>Our sister state, New York, has adopted the rule. Williams v. Smith (c), Robinson v. The Marine Insurance Company (d).</p> <p>Our own state has adopted it in Germain v. Maureau (e), and in Morgan v. Insurance Company of North America (f). In the late case of Armroyd v. The Union Insurance Company (g), the judges did not unite in opinion.</p> <p>The distinction by which in modern times the rule has been assailed, is that the acceptance of the goods must be voluntary, that the owner must elect to take them. There is nothing of this in the marine law. The contrary is manifest throughout. What is the meaning of the terms? If the owner takes his' goods at all, he takes them in one sense voluntarily, he elects to take them. If you mount higher, to the disaster which has happened, then, that being involuntary, all its consequences are so. There cannot then be a voluntary acceptance, if reference is had to the loss; and there cannot be an involuntary acceptance, if reference is had to the taking merely. It is in truth a distinction without meaning; and is in no manner connected with, or founded upon the true prillciple of the right to recover, namely, the labour of the master, and his inability to do more than he has done.</p> <p>The claim to pro rata freight, is placed by the defendants upon ground on which it cannot be maintained; it has no defence in the principles either of the common or marine law, and it is in opposition to both. If service performed is at the foundation of the claim, how can it be supported in a case in which the goods brought less at the intermediate port, than their cost, and where the disaster absolutely defeated the adventure, a material object of which was a return cargo, that could, not legally be imported from Jamaica? Such a principle was not thought of in Luke v. Lyde, where it was .agreed that the freight was greater from Biddeford to Lisbon, than from Newfoundland. If labour performed is the principle, why is it that in the case of capture, or of total loss, though in the very port of destination, no freight is due? The labourer is no doubt worthy of his hire, but he is worthy according to his contract only. Labour per se is nothing; it must be connected with something else, to constitute a right of action; The only question then is, what must be connected with the labour performed; and that is, a voluntary acceptance of the goods at the intermediate port, from which'the law will imply a new promise to pay, in consideration of the labour.</p> <p>This question is not to be decided by the common law merely. Where an express contract is entire, that law does not raise a promise by implication in-the case of a part performance. Nor is it to be decided by the ordinances of ancient or modern France. They are, more. in the nature of statutes, than declarations of the marine law. It is to be settled only by the marine law, as it has been interpreted and applied by those from whom we derive our laws, and by our Own Courts; and the principle to be obtained from this source is, that where a ship and cargo are driven into an intermediate port, and the owner, having an election to send on the goods in the same or another ship, agrees to take them at the intermediate port, with the consent oí the master, freight pro rata is due.</p> <p>The rule is obviously a reasonable one. The contract in its origin is entire, and calls for entire performance. If wholly performed, the whole compensation is earned. If part is performed, and the remainder, though practicable, is dispensed with by both parties, one giving up the right to entire performance, and the other to entire freight, the marine law . 7 , ‘ Tr , . , gives rise to a contract to pay pro rata. It the remainder cannot be performed at all, then the disaster which excuses the master from going on, excuses the owner from paying. This is plain justice between the parties. The consequence of the defendant’s rule on the other hand is, that however useless or pernicious the landing at an intermediate port may be, though the goods are carried to a market where they are of less value than their cost, and from which they can never be taken away, still the owner must lose his goods entirely, or pay a pro rata freight. There is no equity in such a rule as this; it gives the master either the goods or a pro rata freight in every case without exception.</p> <p>The meaning of a voluntary acceptance then is plain; and the necessity of it, according to ancient codes, as well as modern decisions, is equally so. The laws of Oleran evidently refer to such a case; for, after saying that if the merchant requires his goods, he must pay freight, they proceed to say, “ but if the master can readily repair his ship, he “ may do it, or if he pleases he may freight another ship to “ perform the voyage.” Art. 4. The case spoken of, is one in which the ship may be repaired, or another procured, and therefore the acceptance must be voluntary. Molloy and Ma-lino say, “ if the freighter disagrees to the master’s carrying “ the goods in another ship, the master shall receive his “ freight in proportion.” Moline's Lex Mer. 98., Molloy, lib. S. c. 4. s. 4. The laws of Wisbuy speak of the same case. Art. 16. No one of these codes gives a pro rata freight, when the goods must necessarily remain at the intermediate port.</p> <p>Lutwyche v. Grey, the earliest English case, is erroneously stated by Lord Mansjield. From a report of it by Abbot, Treat, on Ship. 196, the pro rata was given, because the owners refused to let the master carry on the goods in another ship, and took them away. A voluntary acceptance was evidently the ground of the Court in Luke v. Lyde. The facts shew it, because the owner sent the fish to Bilboa, *nd of course they could have been sent by the master to Lisbon. Lord Mansfield relies' upon it. He says “ the mer“chant did not abandon, but took the goods, and did not “require the master to carry them to Lisbon, the port of.de-. “livery.” In all subsequent cases, Luke v. Lycle has been confined to its particular facts. Lord Mansfield's reasoning, and his endeavours to import into the law of England the French ordinance, have never received the sanction of later judges. What is said in Baillie v. Modigliani is a dictum; the right to pro rata freight was not in discussion, but the obligation of the insurer on goods to pay it. In other cases, if the acceptance has not been voluntary, freight has been refused; and Luke v. Lyde has been defended solely upon that distinction. Mulloy v. Backer (a), The Hiram (b), Liddard v. Lopez (c). So it has been in New York; Post v. Robertson (d), Marine Insurance Company v. United Insurance Company (e); in the Circuit Court of the United States, Hurtin v. Union Insurance Company (f); and in this Court in Armroyd v. Union Insurance Company (g); for although in the last case, the Judges did not unite, Judge Yeates, who was in favour of a pro rata freight, seems to have considered the claim made by the owners to the profits on the bills purchased with the proceeds of sale, as equivalent to voluntary acceptance, the necessity of which he does not deny. ,</p> <p>In this case then, there is no pro rata freight, because the goods were not accepted voluntarily, but were necessarily sold at Kingston, from which no vessel could be obtained to carry them on; because as soon as the disaster was known to the plaintiffs they abandoned; and because the underwriters on goods never took any step in relation to them, from the loss up to this time. If freight must be paid, the plaintifis must lose it, although all their interests were insured; for it seems admitted that the underwriters on goods have nothing to do with the freight.</p>

IN this case a rule was granted upon the commissioners of Philadelphia county, to shew cause why a mandamus should not issue, commanding them to grant to Liberty Browne a certificate of his appointment to the office of treasurer. The commissioners severed in their return; two of them, Jacob Filler and Isaac Johnson, shewed for cause, that on the day fixed for the appointment of treasurer* all the commissioners attended at their office, and all voted for different persons.

this case a-rule was granted upon the commissioners ^ of Philadelphia county, to shew cause why a mandamus should not issue, commanding them to draw an order on the county treasurer, for 66 dollars 11 cents, the amount of John Poor's bill for schooling poor children, according to the act of the 4th of April 1809.

r | ^HIS was a scire facias against the defendants, as garnishees of Nicholas Duff,\ in which a case was stated for the opinion of the Court, in substance as follows: On the 20th of September 1802, Nicholas Duff as principaj an¿ George BarnwelL as surety, entered into a bond at r 7 ° 1 J 1 the custom house of New Tori, for duties, amounting to 596 d0Hars 73 cents, payable in six months, which Barnwell * * % / ■** . , . paid on the 10th 01 May 1803, with interest, making 601…

<p>IN ERROR.</p> <p>THIS was a writ of error to the District Court of the city and county of Philadelphia. r</p> <p>It was an action against the defendant as the drawer a bill of exchange, dated at Savannah the 26th of April 1809, and drawn upon Samuel Church of Philadelphia, in favour of . . 1 r Christian H. Fisher, the plaintiffs intestate, at five days sight, for 342 dollars 85 cents. The bill was presented on the 9th of May following, and noted for nonacceptance; and on the 17th of May was protested for nonpayment.</p> <p>It appeared upon the trial, that the drawer, Evans, was a sea captain, who was.frequently absent from his family, the prosecution of his business; but that his general residence was in Philadelphia, where he had a house in which his and family lived before and at the time the bill was dishonoured. The payee lived in Savannah. When the bill was ’"protested, it was sent to Savannah, at which time the defendant was absent from that place; but no notice was given to the drawer, nor was any inquin made for his residence, although the payee knew that he did not reside in Savannah. The drawee was indebted to the drawer when the bill was dishonoured, and he afterwards failed.</p> <p>The counsel of the plaintiff requested the Court to charge the jury, that because the bill was dated at Savannah, it was not necessary for the holder to look for the drawer elsewhere; and not being there, notice was dispensed with. The Court on the contrary directed the jury, that the holder was bound to use reasonable diligence to find the drawer, and to give him notice. The plaintiff- tobk a bill of exceptions.</p> <p>The place where the bill is drawn, must be taken to be the residence of the drawer. He asserts it by the date of his bill. He makes that the place, by the law of which damages are to be regulated, Slacmn.v. Pomery (a), and where the holder is to resort in case the bill is dishonoured.</p> <p>The only rule upon the subject is, that the holder must use due diligence to find the drawer or indorser, for the purpose of giving him notice. It is impossible to suppose that' the date proves the residence, or circumscribes the 'inquiries of the holder, particularly in a case where he knows the fact to be otherwise. The holder is not bound to follow the drawer round the world. He may inquire for his residence, and if his diligence is reasonable, and he does not find it, it is sufficient; or if he finds his family, he may leave notice there, though the holder, is absent; but he must use reasonable diligence, without regard to the place where the bill is dated. Muilman v. D'Eguino (b), Heylin v. Adamson (c), Chitty on Bills 167, (181), Cromwell v. Hynson (d), Bateman v. Joseph (e), Chapman v. Lipscombe (f).</p>

<p>THIS was an action of covenant upon a policy for 3209 dollars, dated the 2d of November 1807, on goods by S^'P Logan, My rick master, at and from New York to Amsterdam, “with liberty, in case of being turned off on ac-u count of blockade, to proceed to a neighbouring portP Premium ten per cent., to return two, in case or sate arrival,</p> <p>At the trial of the cause before Yeates T. at a Nisi Prius, . , , , , . in January last, the plaintiffs, having opened their case to (¿g jury entirely from written and printed documents, the defendants demurred; and on this demurrer it came now before the Court.</p> <p>The material facts were these: The Logan sailed from Lork upon the voyage insured, on the 31st of October 1807, having on board Savanna sugars belonging to the plain-,. tiffs, to an amount equal to the sum in the policy. On the 25 th of December, s * was boarded off Scilly by the British private 'ship of wc Minerva, and her papers indorsed, ,, , 1 , ,, warned not to enter, or attempt to enter, an enemy s port. The captain of the privateer at the same time read to the captain of the Logan, the British orders in council; in consequence of which the latter proceeded for advice to England, and arrived at Cowes on the 28th of December. Finding from the English newspapers, that all neutral ships and cargoes r -n , , ,. , , i , , coming from England, were liable to confiscation by the French decrees, he went to London; but learning nothing , , , , , , ° , . more than the existence of the decrees, he returned to his ship at Cowes, to remain there for information from Holland, which was daily expected, as to the operation of those decrees in that country. On the 22d of January 1808, he received advice from his owners’ correspondents, that there was no obstruction to American ships entering Holland; and having previously paid duties, and taken a license for Amsterdam, to continue in force for four months from the 30th of December 1807, he determined to proceed on his voyage to Amsterdam. But, as he stated in one of his protests, after "waiting at Cowes for a favourable opportunity to proceed with his ship for Amsterdam, and being about to depart, he was, on the 13th of February, seized by an officer and boat’s crew from the British ship of war Pelter, and the ship’s papers taken and sent to Portsmouth. The ship and cargo were libelled in the admiralty, and the captain attended in London until the 23d of March, when they were restored. He then proceeded to Portsmouth, where the ship had in the mean time been carried, and obtained possession on the 1st of April. Bad weather and various accidents detained him until the 18th of April, when he weighed anchor, and proceeded to the Mother Bank to wait for convoy to the Downs. He obtained it on the 23d, and on the next day came to in Dover, Roads, the wind being ahead. On the 1st of May he proceeded for Amsterdam, but on the third was boarded by the Zenobia sloop of war, and sent, under the charge of a prize master and crew, to Tarmouth Roads. The ship and cargo were a second time libelled in the admiralty, and restored on the 21st of June; but about this time, information being received that the decrees of the French and Dutch governments, prohibiting the entry into their ports, of any vessel coming from England, were rigorously enforced in Holland, — that several vessels had been seized there, and others ordered away, he determined to take his ship to London, and land her cargo, which he accordingly did a few days afterwards. On the 19th of October, the plaintiffs received a letter from Gruffe and brother, their agents in London, dated the 8th of September, informing of the unlading of the cargo, and on the next day they abandoned.</p> <p>but the Court having expressed no opinion upon the point that was particularly pressed by the counsel, it becomes unnecessary to give more than the heads of the argument on both sides.</p> <p>The defendant's counsel objected to a recovery as for a tota* *oss’ which was onty point in dispute,</p> <p>1. In consequence of the delay at Cowes, from the 22d of January to the 13th of February, without any cause being assigned. This, they said, was a deviation which discharged the underwriters. Park 295. 310., 1 Condy's Marsh. 199, 200.</p> <p>2. Because, after the expiration of her license, to wit, on the first of May 1808, the ship sailed for Amsterdam, a blockaded port, contrary to her duty to the belligerent who imposed it, and in violation of the policy, as she had been previously turned off. This was an increase of the risk, which discharged the underwriters.</p> <p>3. Because, having been turned off from Amsterdam in consequence of blockade, the clause in the policy came into effect, by which it was made her duty to go to a neighbouring port; and London being selected as a port of discharge, was a neighbouring port, within the policy, where the voyage regularly terminated. If not a neighbouring port, then it was a deviation to go there; and none of the French or Dutch decrees, or British orders, justified the captain in thus deviating and breaking up the voyage. It was the consequence of apprehension merely. On this point were cited, Richardson v. Maine Ins. Co. (a), Radcliff v. The United Insurance Company (b), Snowden v. Phœnix Insurance Company (c), Savage v. Pleasants (d) Lee v. Gray (e), Hadkinson v. Robinson (f), Lubbock v. Rowcroft (g), Blackenhagen v. London Assurance Company (h).</p> <p>4. Because the abandonment on the 19th of October was too late, the unlading of the cargo having taken place about the beginning of July; and the plaintiffs were responsible as much for the' delay of their agents, in not sooner communicating that fact to them, as they would have been for their own delay in not communicating it immediately to the underwriters. Unless an abandonment, is accepted, the agency is at the risk of the assured.</p> <p>1. That there was no deviation by delay at Cowes, because the master swore that he waited for a favourable opportunity to proceed, from which the jury might have inferred, and the; Court must infer, that he seized the first favourable oppor-. tunity, and that unfavourable occurrences operating on the ship, such as the state of the winds or weather, prevented him from proceeding sooner.</p> <p>2. That the ship sailed from Corves for Amsterdam before her license expired, though taken afterwards; and that she was still under the protection of that license, in consequence of her previous detention being caused by the government that gave it. Nothing but this circumstance could have led to a restitution of ship and cargo, by the admiralty.</p> <p>3. That London was not a neighbouring port within the policy; that phrase being used in a geographical sense, and with reference to the cargo, which was intended for a market on the continent. That if it was a neighbouring port, it was in the option of the plaintiffs not to use it, that clause being inserted, not to compel them to go there, but to protect them if they chose to go there, instead of breaking up the voyage and abandoning; and that the master, by reason of the Dutch decrees, and British orders, and the moral certainty of capture and confiscation in case he proceeded, was justified in breaking up the voyage, and landing the cargo in England.</p> <p>That this was the direct consequence of a legal and moral restraint, as effectual as if it had been actual, which was insured against by the policy, and entitled the plaintiffs to abandon. Tenet v. Phœnix Insurance Company (a), 1 Emerigon 307, 508. 510, 511. 543, 544., 1 Valin lib. 3. tit. 3. Art. 15. p. 656, 657., Pothier, Charte Partie 79., Schmidt v. United Insurance Company (b) Craig v. United Insurance Company (c), Marine Insurance Company v. Tucker (d), King v. Delaware Insurance Company (e), Barker v. Blakes (f), Snowden v. Phœnix Insurance Cpmpany (g).</p> <p>4. That the abandonment was made in due time, being offered as soon as the plaintiffs knew of the loss;' and that the negligence of agents abroad, did not affect the assured, because, by abandoning as soon as the loss was known, they transferred the property to the underwriters from the time of the loss, and placed the agency at their risk. Whether the persons having charge of property after a loss, are the agents of the assured, or the underwriters, depends on the former abandoning or not when the loss is known. If an abandonment is made, they are the agents of the underwriters.</p>

JSAAC W. Morris, by deed dated the 26th of December 1796, granted a lot of ground to the defendant, subject to rent charge of 37 dollars 33 cents per annum. The dred contained the usual covenanr for payment, and the reservation of a right to distrain, or to enter for non-payment. On tke first January 1805, he obtained from Correy a bond and warrant of attorney for 205 dollars 31 cents, arrears of ground rent, and entered up judgment on the 11th of February 1805.

<p>A clergyman, JuchitiioT SS bound to serve the p^orr<not°f withstanding he semblar bushfess as to keep a store for the dfze?fmerchan"in</p>

THIS was an action of account render, in which the plaintiff in his own right, and also as survivor of Bernard Gratz, declared against the defendant as executor of Joseph Simon, “ that the said Joseph in his life time was the “ bailiff and receiver of the plaintiff, and had the care and “ management of divers lands and tenements of him the said “ plaintiff, to make sale thereof for the common profit of the “said plaintiff and Joseph, to wit of 1912 acres of land in “the…

THIS was an action upon a promissory note for 2000 dollars, drawn by the defendant’s intestate on the 12 th of February 1799, and payable sixty days after date to Bond and Brooks, by whom it was indorsed to the testator of the plaintiffs. The declaration contained but one count, which was upon a promise by the intestate to the testator; and the pleas were non assumpsit and the statute of limitations. .

THIS cause was argued under a case, which stated as follows: ■ “ Vincent Ducomb, the defendant, executed to James Lyle, the plaintiff, on the 21st of February 1811, a and warrant of attorney in the penal sum of 18000 dollars, conditioned for the payment of 9000 dollars on 4 * and accompanied the same with a mortgage of the same date, on a house in Walnut street near Second street, on the .. , ,. back of which was indorsed an agreement, that the morto-acre was to secure James…

CASE. “On the 17th of March 1807, the defendant, as President pro tem. of the United States Insurance r_ . „ .

IN ERROR. ¶7* RROR to the Common Pleas of Philadelphia county, jF Á M'Calla the plaintiff below, brought trover before a justice of the peace, against M'Kinley, and obtained judgment on ^ 30th of October 1811, for thirty dollars and costs, the extent of the magistrate’s jurisdiction. The defendant appealed to ^ Common'Pleas, where a verdict was found for the plain-on the 3d of February 1813, for thirty-two dollars and six cents costs, upon which judgment was entered.

ASE Stated for the opinion of the Court. “On the 1st day of April 1794, John Pemberton made his “will, and thereby inter alia bequeathed as follows: — “ To “the children and grand-children of my brother Israel Pern- “ berton deceased, (excepting Mary Fox and her children, she “and they not needing it,) to be equally, divided among those “ of them who may be then living, saving that my cousin “ Sarah Rhoades shall have two shares thereof, two thousand “pounds.” “The word…

r 1 'HIS was a certiorari to Delaware county, to bring up ^ ^ Proceed‘ngs relative to a road laid out in the townships of Newtown and Radnor. A variety of exceptions were taken and argued, by Frazer in support of the certiorari, and B. Tilghman for the road; a material one was, that Maskell Ewing, who was one of the petitioners for the road, was appointed and acted as a reviewer.

IN ERROR. THIS was an action in the District Court of Philadelphia, upon a promissory note drawn by Cooper the defendant , , r r 7. , • Upon the trial of the cause, the defendant proved, that Rankin, in the beginning of the year 1805, sailed upon a voy- ’ o a j r. J age to the Isle of France, as the supercargo of Lewis Crousillat, and left Crousillat to settle and adjust all his concerns, during his absence; that he returned from that voyage in the summer or fall of 1806,…

<p>THE plaintiff in error was indicted at a Mayor’s Court for the city of Philadelphia in March 1812, for feloniously J % * ' d stealing and carrying away twenty-five silver spoons and other articles, the property of E. I. Dupont; and upon the trial the jury found a special verdict which stated, “ that the defendant “ did feloniously steal, take; and carry away all the goods « chattels mentioned in the indictment (except six shirts “ the value-of seven dollars) -within the state of Delaware, “ and that he brought the same into the city of Philadelphia, “ and within the jurisdiction of this Court; but whether See.”</p> <p>Upon this verdict, the Court being of opinion that the defendant was guilty in manner and form as he stood indicted, adjudged him to restore the. property stolen, or pay the value to the owner, and to undergo a servitude at hard labour for the space of three years; and upon this judgment a writ of error was brought in this Court.</p> <p>The question was argued by</p>