Volume 5 — Rawle's Pennsylvania Reports

This was a case stated for the opinion of the Court. Both parties claimed under the will of Rickard Whitman, the maternal grandfather of the plaintiff; which as far as it was material to the ease, is as follows : “ I leave and bequeath my only daughter, Charlotte, my house and land I now possess, and likewise any thing that is coming to me of my father’s estate, let it be more or less. I leave it to my said daughter to be hers when she comes of age.

<p>Error to the District Court for the City and County of Philadelphia.</p> <p>’ The defendant in error, William Cramond, who survived Godfrey Haga and Charles G. Paleske, who, together with hitnself, were assignees of Eric Lewis Bollman, bankrupts, brought this action against James Yard, the plaintiff in error, for money had and received by the defendant below, to the úse of the plaintiff below, under the following circumstances.</p> <p>Eric & Lewis Bollman, who were Hanoverians by birth, came to this country in the year 1796, and entered into business as merchants, in the spring of 1797. Eric Bollman married in Philadelphia, in which city and New York he was domiciled until the year 1814, when he went to Europe, and never afterwards returned to the United States.</p> <p>On the 11th of October, 1802, he was regularly naturalized as a citizen of the United States.</p> <p>Lewis Bollman married in Pittsburg, and was domiciled in the United States, until his death, which occurred a few years ago. He also was regularly naturalized as a citizen of the United States, on the 11th of October, 1802.</p> <p>On the 8th of March, 1803, they were both declared bankrupts, and received their'certificate of conformity on the 9th of June of the same year.</p> <p>On the 22d of February 1819, a treaty of amity, settlement and limits, was negotiated between the United States of America, and the King of Spain, which was finally ratified and promulgated on the 22d of February, 1821. 6th Laws of U. S. 620. By the second article of this treaty, his catholic majesty ceded to the United States East and West Florida, in consideration of the sum of five millions of dollars, to be applied in the manner directed by the eleventh article of the treaty.</p> <p>By the ninth article, the high contracting parties make to each other mutual renunciations. The renunciations of the United States extend, among other things, (in the fourth section) “ to all claims of citizens of the United States upon Spain, arising from unlawful captures or seizures at sea, and in the ports and territories of Spain or the Spanish Colonies.” In the fifth section they extend to all claims of citizens of the United States,’ upon the Spanish Government, statements of which soliciting the interposition of the government of the United States have been presented to the department of state, or to the minister of the United States in Spain, since the convention of 1802, and until the signature of that treaty.</p> <p>The eleventh article is as follows, viz:</p> <p>“ The United States, exonerating Spain from all demands in future, on account of the claims of their citizens, to which the renunciations herein contained extend, and considering them entirely cancelled, undertake to make satisfaction for the same, to an amount not exceeding five millions of, dollars. To ascertain the full amount and validity of these claims, a commission, to consist of three commissioners, citizens of the United States, shall be appointed by the President, by and with the advice and consent of the Senate, which commissioners shall meet at the city of Washington, and within the space of three years from the time of their first meeting, shall receive, examine and decide upon, the amount and validity of all the claims included within the descriptions above-mentioned. The said commissioners shall take an oath or affirmation, to be entered on the record of their proceedings, for the faithful and diligent discharge of their duties; and in case of the death, sickness, or necessary absence of any such commissioner, his place may be supplied by the appointment as aforesaid, or by the President of the United States, during the recess of the Senate, of another commissioner, in his stead. The said commissioners shall be authorised to hear and examine on oath every question relative to the said claims, and to receive all suitable authentic testimony concerning the same. And the Spanish government shall furnish all such documents and elucidations as may be in their possession, for the adjustment of the said claims, according to the principles of justice, the law of nations, and the stipulations of the treaty between the two parties of 27th October, 1795: the said documents to be specified, when demanded, at the instance of the said commissioners.</p> <p>“ The payment of such claims as may be admitted and adjusted by the said commissioners, or the major part of them, to an amount not exceeding five millions of dollars, shall be made by the United States, either immediately at their treasury, or by the creation of stock bearing an interest of six per cent, per annum, payable from the proceeds of the sales of public lands within the territories hereby ceded to the United States, or in such other manner as the Congress of the United States may prescribe by law.</p> <p>“The records of the proceedings of the said commissioners, together with the vouchers and documents produced before them, relative to the claims to be adjusted and decided upon by them, shall, after the close of their transactions, be deposited in the department of state of the United States; and copies of them, or any part of them, shall be furnished to the Spanish Government, if required, at the demand of the Spanish minister in the United States.”</p> <p>Under the provisions of the article above recited, commissioners were duly appointed to' carry it into effect.</p> <p>On the 28th February, 1822, Godfrey Haga and William Cramond, assignees of Eric and Lewis Bollman, together with several other persons, gave to Jamás Yard a power of attorney authorising him to appear before the commissioners and prosecute their claim as owners of the cargo of the brig Dolly, Thomas Webb, master, formerly belonging to the port of Philadelphia, For the capture and loss of said cargo, and generally to do whatever might be necessary to effect a recovery of their claim.</p> <p>On the 1st of March, 1822, Mr. Yard, in pursuance of this power of attorney, and a similar one from certain claimants on account of the capture of the ship Asia, presented to the board a memorial, in which among other things he set forth, that he was the agent of his own assignees and of all the other persons originally interested in the transaction thereinafter stated, or of those who represented or claimed under such persons, of all of whom a table was annexed shewing the place of their nativity, the time of their naturalization, when abroad, their residence at the time of the transaction aforesaid, and the character of the claim on the part of each, and whether such claim was original or derivative: That in the year 1799, Don J. Demas y. Valle, President or Governor of the Spanish Province of Guatemala, granted sundry licenses to a distinguished merchant of the city of Guatemala, Don Juan Bh. Yrissary, for the importation from foreign ports, especially from the United States, of all lawful merchandize; to render which licenses available he gave passports to jDon Alexander Ramirez and Don Juan Echevria, agents of Yrissary, to proceed to foreign ports. • They came to Philadelphia and addressed themselves to the memorialist, who together with certain persons who becameasso ciated with him, was induced to make the experiment of carrying one of the licenses into effect. The success of this enterprize induced the memorialist and his associates to enter more extensively into the business. The agents above mentioned stated that if vessels should proceed to ports of Guatemala in the Pacific, they might, on their outward voyages .touch and trade at the ports of Chili and Peru before they arrived at Guatemala, which was represented as a great advantage. Adopting this plan, the memorialist and his associates, sent two vessels, the ship Asia and brig Dolly,’ both the property of the memorialist, with cargoes to the Pacific. . Yrissary, sent an agent from Caxidé to Lima to act as consignee of any vessels which might touch at Peru. The cargoes of both these vessels were furnished by the' memorialist and several other merchants of Philadelphia who made him their sole agent, and who shipped their goods in his name. The Asia sailed from Philadelphia in October, 1800, for Sonsonati in the Province of Guatemala, with orders to touch at Lima. The Dolly sailed soon after with orders to touch at Valparaiso in Chili. The Asia, wiihout touching at any intermediate port arrived at Callao de Lima about the end of January, 1801, and the Dolly after touching at Valparaiso, also ar l rived at Callao in June, 1801. When they, arrived, the power of the President of Guatemala to grant licenses so broad as those under which they sailed, was denied by the Government of Peru. Both vessels were therefore arrested, their cargoes seized and sold under instructions from government, and the proceeds deposited in the Royal Treasury, but the vessels; after being allowed a small sum on account of freight, were .permitted to depart with cargoes, principally on. Spanish account, one for Cadiz, and the other for Philadelphia. Though the decrees of the Government required the proceeds of the cargoes to be deposited in the Royal Treasury, yet they were so modified as to admit of their passing through the hands of Yrissary’s agents, who were permitted to take possession of them on giving bond to place in the Treasury ■ the amount of their appraised value. In this state of things it was determined by the associates of the memorialist that he should go to Spain to petition the King for relief. In 1802 he proceeded to Madrid, and in his own name solicited from the throne, restoration of the property sequestered in Lima. Yrissary had an agent in Madrid at the same time, urging the delivery of the property to him. After a protracted period, a royal order for its restoration was granted, but it was so qualified as to give a preference to neither party, and yet to afford a show of justice to both. This royal order was dated August 29th, 1803, and was addressed to the President of Guatemala, apprising him of the removal of the sequestration and instructing him to pay to the memorialist and to Mr. Forbes, of Jamaica, the balance due to them from Yrissary, and to the latter such balance as might after-wards remain in the treasury. Although the royal order had the force of a law, yet great difficulties arose in ascertaining the amount to be received by the memorialist, and he returned to the United States in order to fix that amount. It was determined by those concerned that the memorialist should prosecute the business in the manner he thought best, and to him it appeared that there'was but one course to be pursued, which was to effect a settlement with Yrissary at Guatemala’, and to demana payment of the President of that province agreeably to the royal order. The difficulties attending this course were almost insurmountable. Strangers are generally ex-eluded from Spanish ports in time of peace, and even if admitted into the sea porls permission cannot be obtained on any terms to penetrate into the interior. The city of Guatemala, the capital of the province, is situated nearly midway between the Atlantic and Pacific oceans. Its port of entry on the Atlantic is Omoa in the Gulf of Honduras, one of the most pestiferous regions of the globe. To that place therefore no person could go from the United States. A vessel was sent to Omoa with a view to open a communication with Yrissary, but he detained her so long, that the officers and crew all perished, when he sold the vessel and appropriated the, proceeds to his own use. For these reasons, the business was prosecuted languidly and all active measures were suspended. Some time in the year 1807, a letter was received by the memorialist, dated Guatemala, September, 3d 1806, signed by the executor of Yrissary, informing him of the death of that gentleman on the 5th of May, 1805, and enclosing an account-current which exhibited a balance in favour of the memorialist of two hundred and thirty-nine thousand one hundred and ninety-nine dollars and one and a quarter rials; but it also advised that an attachment had been laid in Lima, on one hundred and eighty thousand dollars of the funds deposited there by three persons, who had freighted the Dolly, on the ground that she had gone to London instead of Cadiz. The letter also contained an offer to pay the memorialist the balance of fifty-nine thousand one hundred and ninety-seven dollars and one and a quarter rials, provided he would receive it in cocoa at a stipulated price, and would send a vessel to a small port adjacent to Omoa to receive it. A great number of proofs and documents were , prepared by the memorialist, as well in reference to the attachment in Lima as to the contested amount in Guatemala. The documents for Lima, together with a power of attorney to Don Juan B. Oyazzabal, were sent out which ultimately reached their destination. The documents for Guatemala, together with a power of attorney, were sent to the Marquis of Ayzinina, and re iched him in due time. A letter from Oya-zabil, dated Lima, November 20th, 1809, informed the memorialist of the removal of the attachment, and one from the Marquis of Ayzinina, dated August 10th, 1809, stated that the dispute with the executors oí Yri-sary had been referred to the Jueces Arbitrios. Another letter from the same person, dated December 18th‘, 1813, info med the memorialist that he had obtained judgment and was accompanied by a copy of the proceedings in the case. The estate of Yrissary was declared bankrupt and surrendered to his creditors. In December, 1814, the Marquis of Ayzinina died, and his affairs came into the hands of his brother Juan Fermín de Ayzinina, who wrote two letters to the memorialist, one dated the 18th of July, and the other the 3d of September, 1818. In the first, he announces the removal of all difficulty as to the receipt of the money in the Treasury at Lima, about two hundred and two thousand dollars, and offers, when in possession of it, to remit the amount in indigo. In the second, he advises of having a decree for the amount of the funds in the Treasury at Guatemala, which had been transferred from that of Lima by order of the President of Guatemala. Thus, in September, 1818, such progress had been made in the business, that it only remained to receive the official order of the President of Guatemala for the payment of the money. At this critical moment, notice of the invasion'of Florida and capture of St. Augustine, was received at Guatemala. The agent then suggested to the memorialist certain measures to be taken for the security of the property, which however, were rendered unnecessary by the treaty with Spain, under which the claim was made. The amount of the claims for the two vessels could not be exactly ascertained, but might be estimated at about three hundred thousand dollars.</p> <p>The memorial then stated that the cargo of the Asia was divided into twenty-two shares, and held in the following proportions, viz.:</p> <p>Joshua Sutcliffe, Samuel Gatcliffe, John Ashly, Martin Walker, Simon Walker, James Yard. 4 Shares. 4 1 “ 1 rj it 5 “</p> <p>That the cargo of the Dolly was divided into one hundred and twenty shares, and held in the following proportions, viz.:</p> <p>Wm. Read Co. Samuel Mifflin, E. & L. Bollman, - James Yard. 40 Shares. 24 “ 15 “ 41 « 120</p> <p>It then stated the facts connected with the national character, residence, &c. of the different parties interested in the cargoes of the two vessels, of which it is necessary to give the following only :</p> <p>“ Martin Walker came to the United States in 1795; his domicil was in Philadelphia until 1803, when he returned to England— was again in the United States in 1811, 1815 and 1819, and since the latter period has resided in Philadelphia. In 1802, he married a neice of Samuel Griffin, of Williamsburg, Virginia, and is now a citizen of the United States.</p> <p>“ Simon Walker came to the United States in 1794; was married in Philadelphia to Miss Ashly, now resident in Philadelphia with her children: made an assignment in 1802 to John Perot, James Taylor and John Ashly, for the benefit of his creditors: went to England in 1803, and has since resided there.”</p> <p>“ Eric Bollman is a native of Hanover in Germany: came to Philadelphia in 1796, and was domiciled there and in New York until the year 1814, when he went to Europe, and was lately in Sánta Fe de Bogota: married in Philadelphia the daughter of Mr. John Nixon: was naturalized in 1802.”</p> <p>“ Lewis Bollman, brother of Eric, came to the United States in 1796 : was naturalized in 1802: was married at Pittsburg, and died there a few years ago.”</p> <p>The memorial, of which the above is an abstract, was presented to the Board of Commissioners, andón the 15thof June, 1822, rejected.</p> <p>On the 21st of October, 1822, a supplemental memorial, to remedy the defects of that originally presented, was received by the Board.</p> <p>In this paper Mr. Yard met the objections toNis first memorial, in the following manner:</p> <p>In reference to the first objection, viz.: the illegality of the vessels going to Lima, he said, that' although he understood .the Board had waived this objection in relation to another Lima case, yet he would state, that in this respect, this case differed from all others. The documents for these vessels were prepared for the ports of Guatemala only; but they had a right to call at any Spanish port on their way. By the Spanish laws of Escala, however, they were not permitted to self their cargoes unless invited to do so by the local authorities. It was the intention of the shippers by both vessels to do so if permitted. The Dolly touched at Valparaiso and took in refreshments without interruption; but not being permitted to sell her cargo, proceeded to Lima, where she, as well as the Asia, was detained by the government, not for any irregularity in proceeding to that port, but on the ground of incompetency of the President of Guatemala, to grant the license under which the voyage was undertaken.</p> <p>In reference to the second objection, which was, that the original memorial did not clearly state that the funds were paid into the Royal Treasury, he averred, after recapitulating some of his former statements that the funds were actually paid into the Royal Treasury.</p> <p>The thii'd objection was, that the claim seemed to be against an individual and not against the Spanish government. This he answered by stating that the claim was upon the government and not upon Yrissary, who was only entitled to what remained after satisfying the claims of the memorialist, Mr. Forbes, and others. It was necessary, however, to settle the account with Yrissary, in order to ascertain the amount due to the memorialist.</p> <p>In relation to the fourth objection, viz: That if the funds had been placed in the Royal Treasury, the memorialist had not sought to obtain them from that source in due time, he stated the following reasons for the delay which took pla.ce:</p> <p>1st. His absence from Spain at the time the Royal order was issued.</p> <p>2d. His inability to appear either in person or otherwise, at Guatemala, as stated in his original memorial and other causes, and the consequent impracticability of his coming in contact with Yrissary.</p> <p>3d. The determination of Yrissary and his executors to protract the final settlement of his account as stated in the original memorial.</p> <p>4th. A royal order to suspend the payment of all deposited funds, in consequence of Miranda’s expedition, &c.</p> <p>5th. The refusal of the King to permit the memorialist’s case to be arbitrated in the Havanna, as he prayed, so that he might have attended to it in person: and</p> <p>6th. The necessity of engaging in a law suit in a foreign and insulated country to which he could have no access, and. which is proverbial for the interminable character of its law proceedings.</p> <p>The memorialist then went at length into facts and reasonings to show why the> claim was not and could not have been paid in indigo, as mentioned in the original 'memorial. He also stated, that in saying in his original memorial that in. September 1818, “ such progress had been made in the recovery of the amount adjudged to him, that it only remained to receive the official order of the President of Guatemala for the amount thereof,” he relied on the representations of his agent, Ayzinina, who was mistaken as to the ability of the Treasury of Lima to discharge the demand of two hundred and two thousand dollars, for which he.was to receive the order of the President of Guatemala. He stated a variety of circumstances to show tha't the offer to pay the admitted balance of fifty-nine thous- and dollars in cocoa, was fallacious and merely part of a scheme of fraud. The memorialist added, that he had an interest in these claims arising out of certain agreements between the parties in interest and himself.for services to be rendered by him, and concluded with the following averments, viz:—</p> <p>1. That his. claim was presented to the Government, soliciting its interposition, before the signature of the treaty with Spain.</p> <p>2. That the detention of the vessels, and the sequestration of the cargoes at Lima, were illegal.</p> <p>3. That the funds proceeding from the sale of the cargoes, were deposited in the Royal Treasury at Lima.</p> <p>4. That he was not bound to look to Yrissary for the payment of his demand, but to the Royal Treasury.'</p> <p>5. That there was no want of diligence in taking the proper measures to enable him to make the demand on the Treasury.</p> <p>A commission having issued to the City of Washington for the purpose of taking testimony, several depositions and various documents were returned by the commissioners; among others, were the following extracts from the record of the proceedings of the commissioners under the Florida Treaty,-viz.—</p> <p>“No. 1631. Supt. to 1150. James Yard, for himself and others. “ Ship Asia and Brig Dolly.”</p> <p>“Tuesday 29th July, 1823.”</p> <p>“ Upon examination of the testimony filed in support of this claim, the Board are of opinion, that it be allowed as valid for their proportion of the nett proceeds of the cargoes of these vessels, deposited in the Royal Treasury at Lima; from which must be deducted' such sums as are claimed for those who are not citizens of the United States; and also any sum which is claimed under any person who was not such citizen at the time of the loss.”</p> <p>“ Monday, 16th February, 1824.”</p> <p>“ Ship Asia, Peterson. )</p> <p>“ Brig Dolly. j</p> <p>“ The Board having heretofore received, examined and allowed this claim as valid, this day proceeded to ascertain the amount thereof, and do award to the claimants the sum of one hundred and thirty-six thousand and two hundred and sixty-five dollars, in full for the loss sustained in the arrest of these vessels at Callao, by order of the Spanish authorities, and the sale of their cargos in 1801, which sum is to be paid to James Yard for himself (No. 1631/) and others. $136,265 96.”</p> <p>On the 19th of June 1824, a draft on the Treasury of the United States issued in favour of James Yard for himself and others, for one hundred and twenty-two thousand and nine hundred sixty-five dollars, seventy-two cents, which contained the following statement :</p> <p>“ Amount of award, $124,910 46</p> <p>Deduct as per statement, 1,944 74</p> <p>122,965 72</p> <p>On the draft was indorsed a receipt bearing the same date with that of the draft by James Yard, for its amount.</p> <p>On the 19th of July 1824, a second draft issued from the Treasury in favour of James Yard, for himself and others, for one thousand four hundred and eighty-six dollars, forty cents, which contained the following statement:</p> <p>“ Amount of award, • $124,910 46</p> <p>Wt. No. 489. 19 June 1824, for $122,965 72 Wt. No. 1133. 19, July -“ 1,486 40 124,452 12</p> <p>Suspended $458 34</p> <p>A statement dated April 27th, 1826, and signed by James Yard, was given in evidence by the plaintiff below, to whom it was furnished by James Yard, showing the proportions to which the different owners of the cargo of the Brig Dolly were respectively entitled, of the amount awarded to them, on the supposition that E. dp L. Bollman were entitled to participate in the benefit of the award, subject to charges, &c. The proportion of E. SpL. Bollman was stated to be seven thousand three hundred and thirty-six dollars eleven, cents.</p> <p>Mr. Yard did not resist the claim of the plaintiff, except so far as his commissions were concerned; but defence was taken in his name by the other shippers on board the Dolly, (with the exception of those representing the claims of Messrs. Simon &p Marlin Walker, which were supposed to be obnoxious to the same objection as that of the plainfiff) on the ground that the Messrs. Bollman were not citizens of the United States within the meaning of the treaty, and were consequently excluded from the benefit of the award.</p> <p>On the trial of the cause the counsel of the plaintiff below, having offered in evidence the testimony taken under the commission to Washington, the counsel for the defendants objected to the report of Joseph Forrest, one of the documents returned, and the answer to the second interrogatory. On the objection being made, the evidence was withdrawn for the time by the counsel for the plaintiff. But after having examined several witnesses to prove the domicil and commercial residence,of the Messrs. Bollman, and several other matters, which it is unnecessary to state, and after having read in evidence a certificate of the clerk of the District Court of the United States for the Eastern District of Pennsylvania, showing that E. dp L. Bollman declared their intention to become citizens of the United States on the 13th July, 1798, and were naturalized on the 11th October, 1802; they again offered the evidence which they had 'before offered and withdrawn. It was objected to again by the defendants’ counsel, but his Honour admitted “ the written documents tending to show that the commissioners in the cases of the Lenox and Molly did adjudge J. E. Bollman & L. Bollman to have been within the meaning of the Florida Treaty, citizens of the United States before 'they were actually naturalized.” To this opinion of the Judge exception was taken by the counsel of the defendants below.</p> <p>The evidence admitted by1 the Court was extracted from the record of the proceedings of the commissioners under the treaty with Spain, and was as follows—</p> <p>“ Ship Lenox, Green, Master, I No. 616. Ins. of North America, > No. 870. Samuel Mifflin, agent for underwriters. )</p> <p>Claimants.</p> <p>“ This vessel, the property of John Steinmoss, Jr. of Philadelphia, a citizen of the United States, laden with a cargo,’ the property of John Leamy ,of Philadelphia, Embeck Henchorff of Hamburg, and Eric 'Lewis Bollman of Philadelphia, sailed from the port of Philadelphia on the day of 1799, on a voyage, bound to Cadiz, St. Lucar or Gibraltar. In the prosecution of this voyage, she was captured by a British armed vessel and detained near Gibraltar on the 1st August, 1799. On the fourth day after, she was released by the captors, who put a Portuguese lad on board as passenger. The ship Lenox then proceeded for Cadiz, and while on her passage was, on 6th Aug. 1799, captured near Cape Spartel by the French privateer L’Eole, Armynat, mastej, carried into the port of St. Lucar in Spain, and condemned by a French consular court, &c.</p> <p>“ The vessel, freight and cargo were insured on this voyage by the Ins. Company of North America and sundry underwriters in the office of Shoemaker ¡Sp Bennett of Philadelphia, for whom Samuel Mifflin, the claimant, is agent, who paid the sums by them insured, to the assured, as an average loss on the cargo and total on the vessel.”. , *</p> <p>“ Report of case by Joseph Forrest, clerk.”</p> <p>“ Proceedings of the Board,</p> <p>“ Saturday, 5th April, 1823, (Lenox, Green.)</p> <p>“616. Ins. Co. of North America.”</p> <p>“Upon examination of the testimony in support of this claim, the Board are of opinion, that it be allowed as valid for the sums insured, and paid upon the vessel, upon the freight and upon Leamy’s shipment of goods, and also for the proportion "of expenses which fell due upon the vessel, upon the freight and upon the said shipment; from which must be deducted the proper. proportion of the sum received of the widow of Maurice Roberts 8p Co.”</p> <p>“ 870, Samuel Mifflin, as agent, (same vessel.)</p> <p>“ Allowed as a valid claim for the sums insured and paid by the underwriters, Provided, the Board should hereafter be of opinion that ,the Bollmans were citizens of the United States within the meaning of the treaty, at the time of the loss of this vessel and cargo.”</p> <p>“ Thursday, Feb’y 12th, 1824,”</p> <p>“ Proceedings of the Board.”</p> <p>“ Ship Lenox, Green.”</p> <p>“ The Board having heretofore received, examined and allowed this claim as valid, this day proceeded to ascertain the amoun thereof, and do award to the claimants the sum of seventeen thousand and ninety-five dollars, sixty-six cents, in full for the lóss sustained in the capture of this vessel by the French privateer, L’Eole, Armynat, master, carrying her into the port of St. Lucar, and having her and her cargo condemned by a French consul in 1799, which sum is to be divided as follows, viz.”</p> <p>No. 616. To Ins. Co. of N. Am., $9,245 66</p> <p>870. Samuel Mifflin, as agent, 7,850 00</p> <p>17,095 66</p> <p>Estimated by the Board:—</p> <p>Value of the vessel, - $8,000</p> <p>Freight,.....4,000</p> <p>Leamy’s cargo, ■ - - - 1,500</p> <p>Bollmans’ cargo, ... 7,850</p> <p>21,350 00</p> <p>Deduct sum received, - 4,556 18</p> <p>-16,793 82</p> <p>Expenses, 301 84</p> <p>$ 17,095 66</p> <p>In the case of the ship Molly, Flinn, master, it appeared from the evidence, taken under the commission to Washington, that on the 26th February, 1823, the Board allowed the claims for losses in this case; but their record declared, that from this allowance was to be deducted “ the value of that part of the cargo owned by the Bollmans, should the Board be finally of opinion that they were not citizens of the United States within the meaning of the treaty.”</p> <p>On the 6 th of February, 1824, the Board proceeded as follows:</p> <p>“ Molly, Flinn:—</p> <p>“ The Board having heretofore examined ánd allowed this claim as valid, this day proceeded to ascertain the amount thereof, and do award -to the claimants the sum of $194,872 26, (less $765 30 unclaimed), in full for the loss sustained in the capture of this-vessel by several Spanish gun boats, &c., in 1801, which is to be divided as follows, viz.”</p> <p>Then followed a statement of the division of the amount awarded, which included the following:</p> <p>“ Unclaimed of Bollmans’ interest, $765 30.”</p> <p>“ There was ño claim put in by the Bollmans, or any body for them, for their uninsured interest.”</p> <p>“ J. F.”</p> <p>After the above evidence-had been given, the counsel of those persons who took defence in the name of the defendant, offered in evidence a paper signed, “ T. Watkins, Secretary to the late Commissioners,” purporting to be a certificate by him, that upon the examination of the books of the commissioners, then in his possession, he found certain matters touching the opinion of the Board as to the citizenship of M. L. Bollman. The evidence offered, was objected to by the plaintiff’s counsel, and overruled by the judge, who at the request of the counsel offering it, noted an exception to his opinion.</p> <p>Much evidence was given on the trial in the District Court, touching the. amount of compensation claimed by Mr. Yard, for his services in recovering the fund in dispute, but as no question arising out of it came before this court, it is deemed unnecessary to state it.</p> <p>The judge was requested to instruct the jury</p> <p>1. That the Bollmans’ interest is clearly and conclusively rejected by the decision of the commissioners, on the face of their awards.</p> <p>2. That the term ‘ citizen’ as used in the treaty, is to be construed to mean, either the native or naturalized citizen; and that the plaintiff is not entitled to recover on the ground, that the Bollmans are, by reason of commercial residence, to be considered as citizens, within the treaty.</p> <p>3. That if the Bollmans are entitled by construction, to be considered as citizens, so are the Walkers.</p> <p>4. That if the plaintiff is entitled to recover, it is only the amount of Bollmans’ interest, after deducting the' amount of the insurance.</p> <p>In reference to'the first point submitted to him, his Honour, after having commented upon the proceedings and decrees of the Board of commissioners, in the case of the Asia and Dolly, and upon the other ■ evidence admitted by him, explanatory of those decrees, particularly the decrees in the cases of the Lenox and Molly, and giving his reasons for having admitted such evidence, instructed the jury that, “ neither on the face of the decrees, nor by any other evidence shown, was' he satisfied that the Board of commissioners had decided the point against Justus Eric Bollman and Lewis Bollman, but rather the reverse. The plaintiff, the surviving assignee, was therefore entitled to recover w.hat was justly due to them, and what must be taken to have been recovered and received on'their behalf.”</p> <p>Upon the second point he declared to the jury, that “ on full reflection and after a careful review of áut'horities, he was of opinion. that Justus Eric Bollman and Lewis Bollman, though certainly not within the letter, were within the purview, within the spirit and meaning of this treaty.”</p> <p>In relation to the third point he informed the jury that he could not instruct them as he had been requested, that “ if the Bollmans are entitled, by construction, to be considered as citizens, so are the Walkers’’ the case of the Walkers not being then before the court. He recommended however to the counsel to enter into an agreement (which was done) by which the interest of the Walkers in the fund in the hands of Mr. Yard, should, not be affected .by the verdict to be rendered in this case, in the event of the suits brought by them or their representatives being successful.</p> <p>As to the last point his Honour directed the jury to ascertain how much had been received from underwriters on account of this loss, but to find a verdict without deducting it, and the court would lessen the verdict by so much if the underwriters were not entitled to it — if they were, the court would hold the plaintiff a trustee pro tanto, and lay hands upon the fund for the benefit of the underwriters.</p> <p>The opinion delivered by the court to the jury was excepted to by the counsel of those who opposed the claim of the plaintiff below, and on the return of a writ of error to this court, the following errors were assigned. '</p> <p>1. The Court below charged the jury that under the Florida treaty persons were entitled to participate in the fund provided who were commercial residents, although not citizens of the United States by birth or naturalization.</p> <p>2. The Court charge,d the jury that they had nothing to do with the claim of the Walkers — although the admission of their claims would greatly reduce the amount to be received by the respective claimants,- each of whose share would depend upon the number who should be entitled to participate in the fund.</p> <p>3. The Court charged that all commercial residents were entitled to participate in the fund provided by the Florida treaty, and yet authorised the exclusion of certain persons thus circumstanced, whereby the defendant is made liable to pay a siyn of money to the plaintiff which he may be liable to pay over again to other persons.</p> <p>4. The Court below admitted in evidence the return of a commission to Washington with the depositions and documents therein contained.</p> <p>5. The Court rejected the certificate of Tobias Watkins after admitting the documents annexed to the plaintiff’s commission to Washington.</p> <p>6. The judgment of the Court below is erroneous, and the plaintiff in error assigns general errors.</p> <p>The cause was argued at December Term, 1833, by J. R. Ingersoll and Chauncey, for those who resisted the claim of the plaintiff below, the real plaintiffs in error, and by Scott and Rawle, -jun. for the defendant in error, T. and J. Sergeant who were of counsel with the nominal plaintiff in error, taking no part in the argument. It was again argued by the same counsel at December Term, 1834, T. Sergeant, who had been previously appointed one of thé Justices of . this court, took no part in the decision of the cause, and J. Sergeant, the counsel of Mr. Yard, did not participate in the argument.</p>

<p>This was a writ of error to the.District Court, for the City and County of Philadelphia, in an amicable action, in which David C. Wood, the plaintiff in error was plaintiff, and the defendant in error, Clayton Earl, defendant.</p> <p>It was submitted to referees under the act of 1705, by an agreement dated July 25th, 1821, and filed August 6tfi, of the same year.</p> <p>On the 6th of December, 1826, the referees filed their report, in the following words:</p> <p>“ We the undersigned, having heard the parties, examined their accounts and vouchers, do award to David C. Wood, plaintiff, one hundred and nineteen dollars and seventy-two cents, due bn the 19th of sixth month, (June) last, exclusive of the outstanding debts on the books of Clayton Earl, arising from sales of the produce of ■Milville Furnace.</p> <p>“Philadelphia, 11th mo. 28th, 1826.”</p> <p>Sixteen exceptions to the report were filed in the court below, by whom they were all dismissed, and judgment entered on the report.</p> <p>The following exceptions only, were insisted on in this court:</p> <p>1st. The referees erred in reporting the amount due, upon the 19th of June last, which was not the subject submitted to them, and the award is neither certain nor final.</p> <p>2d. The referees erred in reporting the sum due, “ exclusive of outstanding debts,” without designating those debts, or signifying to whom they should belong.</p> <p>3d. The referees erred in making an award, which was neither certain nor conclusive in its character.</p>

This was an action to recover the arrears of an annual interest of six: per cent, due to the plaintiff, a citizen of the United States, on twenty-nine shares of what is commonly called “old stock,” or as they are described in the act of 29 th March, 1819,' which were not forfeited in the late Delaware and Schuylkill, and Schuylkill and Susquehanna Canal Companies.

This was an appeal from the Court of Common Pleas of Bucks County, under the Act of Assembly, relative'to the distribution of moneys arising from sheriffs’ sales.

This was a writ of error to the Quarter Sessions of Bucks County. It was a prosecution against William Bailey, a justice of the peace, for refusing a copy of his proceedings in a suit before him.

In pursuance of a petition presented to the Orphans’ Court of Bucks county, at December term 1832, by Mary White, the widow, and David and Rebecca White, the children of George White deceased, the Court appointed seven men, named in the petition, to part and value the real estate of the decedent.

It was an indictment against Bettings, a collector of taxes, for embezzling moneys received by him. The indictment contained four counts.

<p>IN ERROR.</p> <p>Evidence of a promise to pay in consideration that the plaintiff would wait, forbear, or give time, indefinitely or for a reasonable time at the instance and request of the defendant, will maintain an action against the promiser.</p> <p>A stipulation to pay on terms no more definite than waiting or forbearing for a time or giving time, or a longer time, will not entitle the plaintiff' to recover.</p>

<p>Where there is any doubt as to the validity of an election, the Court will not interfere by mandamus, but will put the parties in.the first instance to an information in nature of¡ a quo warranto.</p> <p>A disorder having arisen at a ward election for assessors and inspectors of the general election, the constable of the ward and the persons alleging themselves to have been chosen judges, adjourned the election from the usual place designated in the constable’s notice to a neighbouring house, where the relators had the highestnumber of votes, and were returned by the constable as duly elected. The electors who remained at the usual place designated in the notice, elected judges, and held an election without calling in the overseers of the poor or other persons pointed out by the act of assembly. The persons here elected were returned by the judges to the county commissioners as duly elected.</p> <p>Held, That both elections were illegal: and that this being a case.of failure to elect, assessors were properly appointed by the county Commissioners.</p> <p>The Commissioners have power to inquire into the irregularity of a ward election; and the constables return is not conclusive on them.</p>

<p>IN ERROR.</p> <p>A will of lands may lie given in evidence on proof of its execution, notwithstanding a verdict and judgment in an issue of devisamt vel non from the Register’s Court, against the validity of the will.</p>

<p>IN ERROR.</p> <p>In an action to recover contribution, brought against a co-obligor in a bond, the defendant agreed to submit to the obligee the decision of the fact of payment to him, of the bond by the plaintiff.</p> <p>Held, that counter declarations of the obligee, whether in conversation or on oath, were admissible to show hid want of good faith or of memory.</p> <p>A receipt purporting to be for a sum equivalent to the defendant’s proportion of the debt,' given by the obligee, is not evidence of exoneration against a co-obligor in an action to recover contribution.</p> <p>Statements by a witness at another time, though admissible to contradict are not equally so to confirm him.</p> <p>This is the general rule. But consonant declarations may be given in contradiction of evidence, tending to show that the testimony at the bar is a fabrication of recent date, and to show that the same statement was made before its ultimate effect on the question trying, could have been foreseen.</p> <p>Proof of payment in money is not absolutely indispensable to sustain a count for money paid, laid out and expended. Per Gibson, C. J.</p> <p>Payment by a surety before the maturity of the debt, is not necessarily voluntary. Per Gibson, C. J.</p> <p>An obligor to whom the bond has been delivered by the obligee on a promise of payment, actual or conditional, may on actual payment in pursuance of his promise, maintain an aetion for contribution against his co-obligor.</p>

<p>IN ERROR.</p> <p>Testator devised to each of his grandsons, A. and B. a tract of land in fee simple, from and after their arriving at twenty-one years of age respectively, when they were to have possession of the land: subject each to the payment of a sum of money, making together four thousand dollars, on their arriving at age; which sum he bequeathed to his four grand-daughters to be equally divided amongst them and paid by his grandsons as they arrived at twenty-one years of age respectively.</p> <p>One of the grand-daughters attained the age of twenty-one years after A. had arrived at majority, but during the minority of B. Her personal representative after B.’s coming of age brought an action for her proportional part of the legacy charged on B.'s land. Held, that he was entitled to recover.</p>

<p>This was a writ .of error to the Court of Common Pleas of Chester county, in an amicable action of debt instituted by John Wynn, administrator of Jonathan Wynn, deceased, against Clement Brooke, James Johnson and Margaret Painter.</p>

<p>This case came before the Court on a writ of error to the Court of Common Pleas of Philadelphia county, in which it was a traverse of an inquisition of escheat, of the estate of Sarah Desilver, deceased,' taken on the 12th of November, 1829, and filed with the proceedings of the inquest on the 13th of November, 1829. The traverse was filed by the Rev. Thomas J. Kitts, and the Trustrees of the Second Baptist Church and congregation in Philadelphia.</p> <p>The inquest found that Sarah Desilver, died, on or about the 22d of June, 1828, intestate, without heirs or any known kindred, and that she was at the time of her death seized and possessed of certain real estate, in the county of Philadelphia, particularly described in the inquisition, and that Thomas J. Kitts, of the said county, Was the person in whose hands or possession the real estate then was.</p> <p>Various pleadings took place in the court of Common Pleas, but by writing filed, dated the 6th of March 1833, it was agreed that the pleadings' should be withdrawn; that every material fact found in the inquisition, should be understood to be traversed, and the case tried as if a formal issue had been joined according to the agreement.</p> <p>On the trial, after the counsel of the traversers had given in evidence the death of Sarah Desilver, a paper writing, purporting to be the last will and testament of the said Sarah Desilver, dated the 8th of December, 1824, and proved the 26th of July, 1828, devising part of the property mentioned in the inquisition to “ the Trustees of the Second Baptist Church and congregation in the City of Philadelphia, under the ministry of the Rev. Mr. Kills, and their successors in office forever, for the use of said church, and the residue thereof to Thomas J. Kitts, in fee simple,” and an instrument, purporting to be a deed, dated the 24th of August, 1825, acknowledged the 30th of August, 1825, and recorded the 28th of October, 1825, from Sarah Desilver to Thomas J. Kitts, conveying the said estate to Kitts in feé siinple, provided that the rents, issues and profits of the whole estate should, after the payment of ground rents, taxes and the necessary repairs, be by him, his heirs, administrators, and assigns, well and truly applied to the use of the said Sarah Desilver during her natural life, and provided also, that immediately upon . her decease, he, his heirs or assigns, should make or cause to be made and executed unto the Trustees of the Second Baptist Church, &c., a lawful deed, for a certain part of the property, the same, that by the will was given to the church; the counsel for the Commonwealth, offered to prove that, “ Sarah Desilver, was non compos mentis before, at and after, the alleged signing, sealing and delivery of the said last will and testament,” and that she was “ non compos mentis before, at and after the alleged signing and execution of the deed as aforesaid, and that the said Sarah Desilver continued to be non compos mentis as aforesaid, untó and until the time of her death, as aforesaid.” The evidence thus offered being objected to by the counsel of the traversers, was rejected by the court. The counsel of the Commonwealth “further offered in evidence the fact, that the said Thomas J. Kitts, for a long time before and until the death of the said Sarah Desilver, acted as, and was her sole agent, and admitted her to be in the possession of the real estate in the said inquisition mentioned and set forth.” This evidence was also objected to, on the part of the traversers, and rejected by the court, who sealed a bill of exceptions on both points.</p> <p>The jury réturned a verdict in favour of the traversers, whereupon a writ of error was sued out, on which the record was brought into this court, where errors were assigned in the rejection by the court below, of the evidence offered on the part of the Commonwealth, as above stated.</p>

It was a feigned issue to try the validity of the will of Axariah Lewis. On the trial of the cause in the court below, Hannah Lewis, wife of Eli Lewis, was asked if her husband had told her at any time of a conversation he had with Robert Leiois, the plaintiff, about the will. The witness replied that he did tell her of a conversation with Robert Lewis. Mr. Tilghman, counsel for the plaintiff, objected to the witness stating what the conversation was.

This was a writ of error to the District Court for the city and county of Philadelphia. The case was this.

<p>CERTIORARI.</p> <p>A certiorari does not lie to the Supreme Court from the decision of the Mayor of the city of Philadelphia, in an action brought to recover the penalty for a breach of the ordinance passed March 28th, 1822, relating to stalls in thé market.</p>

<p>IN ERROR.</p> <p>In an 'action against a clergyman to recover the penalty for marrying a minor without consent of his parent, under the act of 1729,.the plaintiff filed a statement, to which the defendant demurred: and afterwards a declaration in debt, which he was allowed by the court to substitute for his statement, and judgment of respondeat ouster was entered on the demurrer.</p> <p>Held, that the statement being unauthorised by the act of assembly was a nullity, and the plaintiff might declare as though no legal specification of the cause of action had been made, and the judgment of respondeat ouster, though unnecessary, did not vitiate the subsequent proceedings. Nor was the verdict bad as being founded in part on the defective statement, which was a mere nonentity and entirely superseded by the declaration.</p> <p>A judgment after a trial, on the merits, is not to be treated as erroneous, because there was no plea.</p> <p>A writ in debt is within the remedy prescribed by the act of 1729, by [“ bill, plaint or information.”</p> <p>The grievance, to entitle the plaintiff to recover, is not necessarily an actualjind specific damage; it is sufficient that tho marriage is an unjustifiable interference with the relation existing between the parent and his offspring, and in that aspect, a grievance in contemplation of law. Per GrnsoN, C. J.</p> <p>It is no defence that the clergyman misconceived the age of the person married.</p> <p>The District Court for the City and County of Philaeelphia, has jurisdiction of this action; it being a civil remedy for a private injury. ,</p>

<p>This was an appeal from the decision of the District Court for the city and county of Philadelphia, on the report of the auditor appointed to make distribution of the moneys arising from the sale of the defendant’s real estate, at the suit of' the plaintiff, Charles Waters.</p> <p>The court decided that a judgment for one hundred and three dollars and thirty-nine cents in favour of A. D. Cash, was entitled to priority over a judgment for the plaintiff</p> <p>The plaintiff appealed, and assigned for reasons that the court erred in preferring Cash’s judgment, that having ceased to be a lien on defendant’s estate at the time of the distribution, and because even if Cash’s judgment was alien at law, yet it must be postponed to the plaintiff’s; Cash having represented in fact that his judgment had been paid and satisfied.</p> <p>The material facts of the case are as follows. About the 25th January, 1833, Peterson having a sum of money to invest, applied to Cash, a conveyancer and money broker, to procure a real security. Cash mentioned a Mr. Largy as wanting the money on a house in Logan street, to be clear of all incumbrances, to which Peterson, consented. Cash directed searches for incumbrances, and in presenting the certificates.of judgment to Mr. Peterson, the latter noticing an unsatisfied judgment against Largy in favor of John Goddard for ninety-four dollars and twenty-five cents, objected to making the loan till that was paid. In a day or two afterwards Cash handed Peterson, Goddard’s receipt, dated 9th February, 1833, for ninety-four dollars and twenty-five cents, as received from Cash for the amount of the judgment against Largy, the cost and interest still remaining unpaid. Peterson thereupon advanced the money, noticing at the same time that the costs and interest had not been paid on Goddard’s judgment. Cash observed that he would see that all right before he parted with the money. Some time afterwards he-paid the costs and interest and had the payment noted on • the receipt.</p> <p>About seven or eight months afterwards, Largy called on Peterson and asked him to lend him the searches which had been left with him at the time of the loan through Mr. Cash: his object- being to obtain an additional loan on the - property. Largy obtained the searches -to which was attached Mr. Goddard’s receipt. On the evidence of this receipt, Waters, the plaintiff, loaned Largy two thousand dollars on the security of a judgment without retaining the ninety-four dollars and twenty-five cents considering it to have been paid previously to Mr. Peterson’s advance.</p> <p>On the eighth March, 1833, (between the periods of the loans by Peterson and Waters,) ‘ Cash procured an order from Mr. Goddard’s attorney to have the said judgment marked to his use, which was accordingly done on the docket of the Common .Pleas on the 13th of August following: and it so appeared marked to his use on the certificates of judgments obtained by Waters before loaning his money. The amount of the judgment was paid by a young man. on behalf of Cash to Goddard, who testified that he could not recollect any stipulation or condition at the time of payment' or before, relative to a transfer of the judgment, but that he met Cash in the street, who then stated that the judgment was to be transferred to him.</p>

' It was an action to recover'the price of flour sold by Gest Sp Dickinson to Heiskill, in February, 1814. On the 6th of June, 1814, Heiskill was discharged under the insolvent laws, by the Court of Common Pleas of Philadelphia County, and returned Gest Sp Dickinson for an unsettled amount as creditors.

On a writ of error to the court of Common Pleas of Montgomery county, it appeared that this suit was brought in that court by the defendant in-error, Elizabeth Masterson, against the plaintiffs in error, John Masterson and Christopher Tenant, executors of Henry Masterson deceased. • The declaration contained two counts, the first of which set forth that Henry Masterson on the Gth of November 1818, made his will, by which among other things he bequeathed to his wife,…

Partition. — It was agreed'that the court should give judgment and award a writ to make partition according to the purparts of the parties, in case they were of opinion that the plaintiffs were entitled to partition. A case was stated for the opinion of the court in substance as follows :

This was an appeal from the decision of the District Court for the city and county of Philadelphia, awarding distribution of the proceeds of the sheriff’s sale, under a venditioni exponas issued in the above case.

<p>certiorari.</p> <p>It is not a sufficient ground for setting aside a report of a road jury, that the jurors are entertained on the day of the view at the house of a petitioner, and at his expense, there being no special circumstances of abuse in the case.</p>

The material facts were as follows:— About the beginning of the year 1832 a number of individuals in and about West Chester associated under the name of the West Chester Lodge, No. 42, of the independent order of Odd Fellows.

<p>IN ERROR.</p> <p>There can be no tenancy by the curtesy of a remainder or reversion vested in the wife, if the particular estate continue till the death of the wife. This doctrine applies as well to equitable as to legal estates; and therefore,</p> <p>A mere naked seisin of the freehold by the wife, as trustee, will not support tenancy by the curtesy; though she has the beneficial interest in the reversion.</p>

<p>Property placed by the debtor, in the hands of the creditor is not to be construed as having been received in full discharge of the debt, unless that plainly appears to have been the intention of the parties.</p> <p>When therefore, F. had borrowed the note of the plaintiff, engaging to provide for it, if not paid out of funds shipped to Gibraltar, and afterwards borrowed from him another note, declaring in the receipt given for it, that he had endorsed a bill of lading for goods as a collateral, after which, tile parties entered into an agreement under seal, which after reciting, that A. was desirous of securing to plaintiffs, the full amount of their note, transfers to them coffee and other merchandize, expected to arrive from abroad, “ to have and to hold for the payment of their debt,” stipulating that whatever sum might remain in the hands of the plaintiffs, from the net proceeds of the coffee or other merchandize, after payment of the debt, should be returned to F. or his assigns, it was held, that this agreement constituted the assignee, not the sole but the qualified owner of the merchandize, transferring to him an interest in it only, as a collateral security, that the relation of debtor and creditor, still continued between the assignor and assignee, and that consequently, the assignee having sold .the merchandize fairly on account of the assignor, and a loss having happened without his fault, no more of the debt to him was cancelled, than the. amount of money received by him, from the estate of the vendee.</p> <p>Nor is the debt discharged by a compromise, entered into by the plaintiffs with the vendee with the assent of the defendants, the assignees of F.</p> <p>When more than one of several persons, liable to the payment of a note,have made voluntary assignments for the payment of their debts, the amount actually due on the note, at the times respectively, when dividends are declared, is to be taken as the sum on which the percentage is to be estimated.</p>

<p>This was a writ of error to the Common Pleas of Northampton County.</p> <p>It was an action of debt brought by Young, the defendant in error, against the plaintiffs in error, administrators of John Kemmerer, on a bill obligatory, executed by Jacob Shook and John Kemmerer, the intestate of the plaintiffs in error, by which they bound themselves to pay to Young, two hundred and thirty two pounds and thirteen shillings, on the 12th day of June, next following the date of the instrument.</p> <p>The defendant pleaded payment with leave, &c. and afterwards added a special plea of submission and award, to which the plaintiff demurred.</p> <p>This cause was before the court on a former writ of error, when judgment was entered on the plea demurred to, in favour of the plaintiff) and the record remanded that the cause might be tried on the other pleas. See the case of Young v. Shook, reported in 4 Rawle, p. 299.</p> <p>The remittitur from the Supreme Court, was received in the Common Pleas on the 2d of April, 1833. On the 2d of August, in the same year, the defendants filed an additional plea in the following words:</p> <p>■“ And the said David Kemmerer, and Nicholas Kemmerer, administrators as aforesaid, for further plea in this behalf, by leave of the court here, for this purpose first had and obtained, according to the form of the statute in such case made and provided, say: — That the said John Young ought not to have or maintain his aforesaid action thereof against them, because they say that after making the said writing obligatory, and before the commencement of this suit, after the death of the said John Kemmerer, deceased, that is to say, on the 8th day' of March, in the year of our Lord one thousand eight hundred and twenty-seven, at the county of Northampton aforesaid, the said John Young and the said David Kemmerer, by the name of David Kemmerer, one of the executors, &c. of his father J. K. in conjunction with a certain Jacob Shook, who was co-obligor with the aforesaid John Kemmerer, deceased, in the said writing obligatory submitted themselves and all matters in variance between the said parties, that is to say, by their certain submission, in writing, under their hands and seals, bearing date the day and year last aforesaid, to the arbitration, award and final determination of Lewis Micke, Daniel Brown and Adam Shuge, as referees, indifferently elected, named and chosen by the said parties, that is to say, the said John Young, David Kemmerer and Jacob Shook, to arbitrate, award and settle of, and concerning all matters in variance between the said parties, the said writing obligatory being then and there, that is to say, on the day and year last aforesaid, at the county aforesaid, a matter in variance and dispute between the said parties, to meet at the house of George Messinger, innkeeper, of Forks township, on the 17th day.of March then instant. And the said David Kemmerer, and Nicholas Kemmerer, in fact further say, that the said referees afterwards, that is to say, on the said 17th day of March, in the year of our Lord one thousand eight hundred and twenty-seven, took upon themselves the burden of the said arbitrament, and having met in due manner in pursuance thereof, and having heard the parties, their proofs and allegations, and examined the vouchers, and duly considered the matters submitted to them, that is to say, all matters invariance between the said parties, the variance and dispute between the said parties of, and concerning the said writing obligatary being part thereof, did make their award in writing under their hands, of and concerning the said matters so as aforesaid submitted to them, and ready to be delivered to the said parties in difference, and did in and by their said award then and there, that is to say, on the 17th day of March, in the year of our Lórd one thousand eight hundred and twenty-seven, at the county aforesaid, award and find that the said John Young had no cause of action, and that the parties should pay the costs, each one half, as in and by the said award bearing date the day and year last aforesaid, reference being thereunto had will more fully appear. And this the said David Kemmerer, and JVicholas Kemmerer, are ready to verify. Wherefore they pray judgment, if the said John Young ought to have or maintain his aforesaid action against them,” &c.</p> <p>This additional plea was stricken off by the court below on the 14th of October, 1833.</p> <p>The cause came on for trial on the 27th January, 1834, when several exceptions were taken by the plaintiffs in error, to the decision of the court on points of evidence, which it is unnecessary here to notice, as the court confined their decision to the first error assigned, which was that the court below erred in their decision of the 14th October, 1833, striking off the additional plea.</p>

<p>IN ERROR</p> <p>The proprietors of a stage coach were in the practice of carrying for hire parcels of merchandize fir persons generally: the parcel being entered in the way bill.</p> <p>Held, 1. That they were common carriers.</p> <p>2. That they were not protected from responsibility for the loss of a parcel of goods, by an advertisement “ all laggage at the risk of the owner; the word baggage, not including merchandize generally.</p> <p>In the absence of all proof of the manner of loss, the defendants would be liable as ordinary bailees for hire. Per Rogers, J.</p>

<p>An attorney at law holds his office during good behaviour, and is not professionally answerable for a scrutiny into the official conduct of the judges, which would not expose him to legal animadversion as a citizen.</p> <p>An assertion contained in a letter expressed in respectful language and addressed to a President Judge, by attorneys practising in his court, that the court had lost the confidence of the public and the suggestion of his retirement as the means of restoring it, do not affect the course of the judge’s public duty, and cannot be deemed a breach of professional fidelity on the part of the attorneys, which will authorise the court to strike their names from the list of attorneys.</p> <p>■Still less can they be so deemed, where the letter was in answer to one written to them by the judge, in which he had spoken to them of discipline relaxed, and disorder introduced in the conduct of business in court; of inadvertent remarks indicative of contempt for his decisions, and calculated to impress the public mind unfavourably to the court, and to himself as its organ; of giving place to a successor, who might obtain their con-' fidenee and co-operation, and in which, he had, in conclusion, solicited an expression of their sentiments and determination as to the future, in relation to the grievances he had presented.</p> <p>Nor is the character of the transaction altered by the publication of the correspondence in a public newspaper, by the attorneys, not for the purpose of assailing the reputation of the judge, but of defending their own.</p>

<p>IN ERROR.</p> <p>The acts of assembly of 1701) and 1729, to prevent clandestine marriages, are not obstf lete in their provisions for publication of banns.</p> <p>In an action against a clergyman to recover the penalty given by the latter act,- the burthen of proof lies on the plaintiff to show that there was no publication of banns.</p> <p>The action may be sustained although the minor was not dependent on his parent for support, but lived away from his parent and supported himself.</p> <p>The law implies injury to the parent without proof of actual damage.</p>

<p>IN ERROR.</p> <p>In. an action by tho grandchildren of an intestate against the administrator to recover a distributive share of the estate accruing to them in right of their parent, the defendant may sot off a debt due by the parent of the plaintiffs to the intestate.</p> <p>Therefore, where a promissory note has been given by the child to the parent, it is immaterial whether it is evidence of a debt, or is to be taken as an advancement, so far as respects its admissibility in evidence, in a suit brought by the grandchildren against the administrators of their grand-parent, for a distributive share of the estate.</p> <p>The question of advancement, may be settled in the Orphans’ Court, but it must not necessarily be settled there.</p> <p>Of advancements, under the laws of Pennsylvania, and the proper mode of ascertaining their ainounfand enforcing their operation.</p>

<p>APPEAL.</p> <p>An assignment by partners of partnership effects for the benefit of creditors, contained a condition that the creditors should execute by a day certain, a release of their claims to the assignors individually and as co-partners. Both the partners had separate property. Held, that the assignment was fraudulent and void.</p>

<p>IN ERROR.</p> <p>A writ of error to a judgment on an award of arbitrators, issued and delivered before the expiration of tbe time allowed for appeal, is improvident.</p>

<p>IN ERROR.</p> <p>A defect in a recognizance on an appeal from an award of arbitrators, is waived by the appellee’s omission to rule the appellant to amend it.</p> <p>An appeal does not lie from the judgment of a justice of the peace, where the amount of the demand is not set forth on his docket.</p> <p>Payment of ail the taxed costs is essential to perfect an appeal; and it is error to refuse to strike off an appeal when all the taxed costs have not been paid.</p>

<p>IN ERROR.</p> <p>Testator devised to hia aon A. a messuage to hold to him, during the term of his natural life; and if he should thereafter have issue of his body lawfully begotten, then to hold to him, his heirs, and assigns forever; but in case .he should die without leaving such issue, then to all the rest of testator’s children, their heirs and assigns forever, as tenants in common. A. suffered a common recovery and had issue, who died during his life.</p> <p>Held, that the ulterior limitation was a contingent remainder and not an executory devise, and was barred by the recovery.</p>

<p>IN ERROR.</p> <p>The making of a will in writing, and its contents cannot be established by evidence of the verbal declarations of the deceased, going to show that he had made a will in writing, and how he had disposed of his’ estate by it, in the absence of the corpus of the will, and of all evidence that it had been seen by the witness.</p>

This case came before the Court on an appeal from the decree of the Court of Common Pleas, of Northampton county, distributing the proceeds of the sale of the defendant’s real estate, made by the sheriff.

<p>CASE STATED.</p> <p>The plaintiff proceeded originally by capias indorsed, “no bail required.” It was not served according to the rule of court, the defendants not having subscribed a note in writing empowering the prothonotary to enter their appearance. The sheriff returned “ cepi corpus, and defendants discharged on common bail.”</p> <p>Held, that the return was nugatory and did not authorise an appearance to be entered. Plaintiff entered a rule of reference upwards of ten years after the writ issued, and returned without being duly served, and no step taken by him during that period to continue the action, and obtained an award against all the defendants.</p> <p>Held, that the rule was irregular, and that the irregularity was not waived by a general appearance by an attorney, entered after the rule of reference, but before the appointment of arbitrators; the appearance having been amended by the court below, so as to stand for one of the defendants only.</p>

<p>IN ERROR.</p> <p>A. and B. entered into an agreement under seal, which recited that the former had purchased from the latter, a house and lot, in the city of Philadelphia: That the wife of C. the former owner of one-fifth of the property, had not executed the deed made by her husband and others, to B.; and that consequently, if she should survive her husband, she would be entitled to dower in the same, and that it had been agreed that a certain sum being one-third part of a fifth of the consideration monej1'1 should remain in the hands of A. until the decease of the wife of C. or until she should release her dower. A, then covenanted to pay to B, the sum so retained on the decease of the wife of G. or whenever a release of dower duly executed by her, should by the said B. be produced and delivered to him “ with lawful interest on the said sum, provided the same shall not exceed eighteen months from the date” of the agreement. The wife of C. died on the 17th of October, 1826, and the first notice which A. received of her death and the first demand made upon him for payment of the money, was the institution of an action of covenant on the agreement, on the 13th of August, 1832.</p> <p>Held, That the plaintiff was entitled to recover the principal sum retained by the defendant, with interest from the death of the wife of C.</p>

<p>A. a resident of Calcutta died, possessed of a considerable amount in the American „ funds, which he bequeathed specifically to his sons upon various trusts.</p> <p>Held, That a local administrator cum testamento annexo, durante absentia, was entitled to the fund, in preference to those claiming under the foreign executor.</p>

<p>Hi ERROR.</p> <p>Debt on bond against executors. Plea, that before' suit brought defendants were discharged on settlement of their accounts by decree of the Orphans’ .Court, unreverscd and unappealed from, and so they were not executors at time of suit brought, alleging that they had fully administered. Replication, that before their discharge they had delivered up certain goods and bonds of the estate, without consideration and without accounting therefor, alleging a devastavit, by means whereof the estate at the time of their discharge was inspffieient to pay debts, and that defendants had not fully administered. Demurrer to this replication.</p> <p>Executors who have appropriated the assets of the estate, to the payment of legacies instead of the debts of the testator, and upon settling their administration aecount afterwards in the Orphans’ Court, have obtained a discharge from their executorship, remain liable notwithstanding to the creditors for the assets so applied to the payment of the legacies.</p>

<p>CERTIORARI.</p> <p>A levy on personal property left in the defendant’s hands by the request, and at the risk of the plaintiff, for the purpose of securing his claim, and to prevent a sale of the goods for the payment of other creditors, is fraudulent and void, as against a second execution creditor.</p> <p>A. on the 25th May, 1829, issued a ji.fa. to August term, 1829, returned “levied on real and personal property, as per schedule annexed; the personal property left in possession of defendant, by request and at the risque of the plaintiff',” and on the 23d of October, 1829, issued an alias ji.fa. to November term, 1829, returned “levied on lands on ji. fa. to August term, 1829, and condemned as per annexed inquisition.”</p> <p>B. on the 2d of April, 1830,'issued a ji.fa. returned levied, subject to the lien of A.’s Jifa.; under a venditioni exponus on which, issued the'6th of April, 1830, the property was sold.</p> <p>Held, that B. was entitled to take the proceeds out of court.</p> <p>Quere, whether the issuing an alias ji.fa. and levy on real estate, followed by condemnation, is not itself an abandonment of a levy on personal estate, made under the ji.fa.?</p>

<p>IN ERROR.</p> <p>'The commencement of a building under the act of the 17th of March, 18U6, relating to the lien of mechanics and material men, is, the first labour done on the ground which is made the foundation of the building, and to form part of the work suitable and necessary for its construction; and that continues the same, notwithstanding the right of property in the ground and building may have been subsequently changed, or the plan be altered, so long as the orignal design of its character is retained.</p> <p>A joint-lien may be filed against several adjoining Houses, the property of the same person.</p> <p>A mechanic or material man doing work in, or furnishing materials for the construction of two or more contiguous houses belonging to the same person, under a general request, without any specific contract for each house separately, may either file his claim for the amount against all the houses jointly, or he may apportion it among them according to the value or price of the materials or work, and file a separate claim accordingly. Per Kennedy, J.</p> <p>The lien of the mechanic and material man does not extend beyond ground necessary to the proper occupation and enjoyment of the house, according to the intention and design of the owner at the time of its commencement.</p> <p>An assessment by the commissioners of Kensington District, for paving, is, under the act .of the 3d of February, 1824, relating to taxes on real estate in the city and county of Philadelphia, a lien entitled to priority over the claims of mechanics and material men, and judgment creditors.</p> <p>Where eighteen buildings were erected, semble, a claim against eight houses without properly designating them, is void for uncertainty, and cannot continue the lien after two years.</p> <p>Where a claim was so filed, it was wrong to apportion the claim among all the houses.</p> <p>In the ease of a joint lien, each building is liable for the whole amount thereof; arid no part of the proceeds of any one of the buildings can be applied to a subsequent incumbrance, so long as the joint lien remains unsatisfied.</p> <p>A mechanic filed four claims, three of which -were jointly charged, each on three of the houses, and a fourth on four of the houses. Each claim embraced houses different from those charged in every other. Held, that each claim should be separately charged on the proceeds of tlie houses specified in it, and not the aggregate charged as one entire claim jointly on the thirteen houses embraced in the four several claims.</p>

<p>APPEAL.</p> <p>The report of an auditor adjudicating upon facts, ought not to be set aside, except for plain mistake, which it is the business of the exceptant to establish by affirmative evidence where it is not self-evident in the report.</p> <p>A commission of rather less than five per cent, allowed a. guardian, the estate being large and attended with responsibility and labour.</p> <p>A father who is of ability to support and educate his child, is not entitled to charge for his maintenance and education, and the expenses of his voyage abroad.</p> <p>There is no rule in Pennsylvania that compound interest may not be charged in case of corruption.</p> <p>But where the estate has been managed with fidelity and no unnecessary delay in investing, the guardian is chargeable only with the interest actually made on sums invested, computed from the date of each investment; and with simple interest on the uninvested sums retained in his hands, computed from the receipt of each.</p>

This was a writ of error to the District Court, for the city and county of Philadelphia. Martin and Allen being about to sue out a mechanic’s claim for work done, an amicable scire facias, with a confession of judgment, for the sum of one thousand three hundred and thirty dollars and fourteen cents, was entered on the 13th of October, 1831, signed by Myers, Hoover and Mackway, the defendants.

This was an appeal by M. H. Messchert, and H. Messchert, administrators of Jacob Gerard Koch, from the decree of the Orphans’ Court, for the City and County of Philadelphia, made in the matter of their accounts. The following exceptions were taken by H. Messchert surviving administrator. First.

This was an action on a policy of insurance against fire, dated 11th February, 1826, No. 505, originally made for one year, and afterwards renewed from year to year, by endorsements on the policy.

<p>APPEAL.</p> <p>The number on the corner tree under the provisions of the act of the 24th March, 1785, directing the mode of distributing the donation lands, controls the boundaries in the general draught in locating the patent.</p>