Volume 6 — Binney's Pennsylvania Reports

IN ERROR. THIS was a writ of error to the Common Pleas of Lancaster county, in which Court the plaintiffs brought an action upon the case against the defendant, for having fraudulently and falsely represented a certain F. Eckstein r ; . „ ,j7 . , . , as a man or property, integrity, See. with a view to induce the plaintiffs to trade with him.

<p>IN ERROR.</p> <p>nPHIS was an action of replevin brought to September 1806, by Huber the plaintiff below against Shearick, for a quantity of wheat, which had been levied on by virtue of an execution issued at the suit of Peter Sailer against Henry Lutz, and sold by the sheriff to Shearick. Huber claimed under a bill of sale from Lutz prior to the execution; and the wheat had been sold by the sheriff' while growing, and was taken by Huber from the ground, after it was reaped.</p> <p>After the action had been depending a considerable time in the Common Pleas of Dauphin county, and put at issue, the defendant in December 1807 moved the court to quash the replevin; but the motion was rejected, and the judgment of the court on that point was the error now assigned.</p> <p>argued that the case was within the act of-3d April 1779, by which' all writs of replevin granted for any owner of goods levied or taken in execution by any sheriff, are irregular, erroneous and void, and may at any time after the service be quashed upon motion by the court to which they are returnable; 1 Smith’s Laws, 470; that the sheriff’s vendee stood in the sheriff’s place, and was included within the protection of the act; and that as in case of a reversal of a judgment, there was no restitution of goods sold- under execution, according to Hoe’s case (a), and Manning’s case (b), so by analogy, if a replevin could not prevent the sale and delivery to the purchaser, no error in the proceeding should justify its being used to unravel the sale. The owner’s remedy was trespass against the sheriff.</p> <p>1. The motion was out of time, because the party by pleading waived his right to quash. 2 Hall. 142. 1 Browne’s Rep. 93. 2. The object of the Act of 1779 was to prevent any hindrance to the sheriff in the execution of the writ; not to prevent the legality of the sale from being subsequently questioned, in any and every mode which the injured party might adopt in the case of a private wrong. Trespass and trover lie every where both against the sheriff and his vendee, if the execution has been levied on goods not belonging to the defendant. 1 Bay. 317. Shaw v. Tunbridge (c),Bloxhamv. Olden (d), Cooper v. Chitty (e), Cro. Eliz. 824. Cro. Jac. 50; and in this state, as well as in some others of the states, replevin lies wherever one is in possession of the goods of another tortiousty. Addison’s Rep. 301. Pangburn v. Patridge, (f).</p>

<p>N the 17th of this month, C. Smith on bebalf of ham Witmer, obtained a rule on the commissioners of Lancaster county, to shew cause why a mandamus should not issue against them, to compel them to make out an order on the treasurer of the said county in favour of Witmer for 58,444 dollars 44 cents, tbe amount of the valuation of his ■. stone brids-e over the river Conestoga.</p> <p>The commissioners shewed for cause a variety of malters., 'two only of which it is material to,state. 1. That Court had no jurisdiction, the writ of mandamus being its nature an original action, which could only issue from a Court having original iurisdiction, and this Court had no original jurisdiction of any civil case in this district, nor cou^ lt try the issue of fact which might grow out of the return. 2. That the treasurer had not in his hands any sum of county money equal to the sum for which the order was ed> r J</p>

<p>IN EUROR.</p> <p>1 !HIS was a writ Dauphin county. of error to the Common Pleas of</p> <p>^ was argued fully in this Court, upon a variety of points on which no opinion was given. All that is material in the M1 1 A ° . case will be collected from the opinion of the Chief Justice*</p>

<p>in ERROR.</p> <p>T'HIS was a writ of error to the Common Pleas of Dauphin county, whex-e three bills of exceptions were tendered by the counsel of the plaintiffs in error, who were defendants below, to the opinion of the Court, in admitting and overruling testimony. The whole case appears in the opinion of the Chief Justice.</p>

<p>notbecaUed upon to charge the jury half proved cer-7 tain facts which are sufficient to make out his because the Court has no right to charge the jury that the facts are proved.</p> <p>An award of a certain sum to the defendant, ce deducting an unsettled account of the plaintiff uagainstthe defendant,” is void.</p> <p>Where several things are to he done by the plaintiff, precedent to the performance of the defendant’s part of the agreement, it is necessary for the plaintiff to aver performance of all the things to be done by him. But if the performance of a part is not averred, and it appears by the defendant’s plea, or by his notice under the plea, that the partin question was performed, the‘declaration is cured.</p>

IN ERROR. TT' RROR to Northumberland, m which county Rees issued rl . _ _ , . , i a capias m case, and referred it to arbitrators, who awarded “ that the defendant below should deliver a' certain a ¿eed poll to Sees, pay all costs of suit, and damage six-i it *«* “ teen dollars. _. . . , , . , ihe exceptions taken to the record were, 1. ihat the ac-**011 was arbitrated by the plaintiff below, and tried by the arbitrators, before the plaintiff in error entered special bail,…

in error. Error to the Common Pleas of Northumberland. ' The action was in its origin trespass, not exceeding fifty dollars, brought before a justice of the peace, under the act oC 1st March 1799, 3 Smith’s Laws, 354; in which the plaintiff Trimbly demanded 50 dollars, “ damages sustained “ by the defendant’s cheating the plaintiff’s servant, a minor, “ in trading a horse for a mare, for which the servant had “ no authority to trade.” The case was referred to arbitrators who…

IN ERROR. Tj5 JP-A RROR to the Common Pleas of Northumberland. Richter brought an action of trespass against the defendants, for breaking his close, pulling down and carrying away his fences, and treading down, spoiling and destroying his grass, with a continuando as to treading down, &c. the grass ^rom *st May to May 1812.

IN ERROR. jG' Jlj RROR to the Common Pleas of Luzerne county, v This was a summons in ejectment to August 1812, in which, the right of possession or title of Keister, the plaintiff , , u } . 71 below, was asserted to w a tract of land situate m the town- “ sRip of Nescopeck, in the county of Luzerne, containing “ 150 acres or thereabouts, bounded on the west by the “ Susquehanna river, on the south by lands now claimed by “ Conrad Lines, on the east by land surveyed in the…

IN ERROR. ERROR to Centre County. It was'an ejectment by Werdman, to recover a tract of land which he claimed under the following title. On the 29th of June 1772, a warrant issued in the name of Robert Mackey for 50 acres of land • ^ . adjoining the proprietaries’ survey, Reuben Haines and the Nittany mountain, in\Penn’s creek valley.

IN ERROR. * 1 HHIS was a writ of error to the Common Pleas of Miff.in county, with which were returned two bills of exceptions to the opinion of the Court below, in evidence. • # . First bill.

IN ERROR. ERROR to the Common Pleas of Northumberland. In the Court below it was an appeal by Cavence the defrom the judgment of a justice, for 74 dollars 63 cents.

IN ERROR. THIS was an ejectment in the Common Pleas of Luzerne. county, by Scovii, the plaintiff below, against Job Irish, for a tract of land within the township of Claveracke, one of the seventeen townships.

<p>if a tenant fot of¿“etirtew¡31 0“tthe consent of the reversioner, his children and all persons who come in under him or them, are estopped from controverting the reversioner’s right to possession, in the same manner as tenant for years or his assignee would be.</p> <p>Where boundary is the subject in question, what has been said in delation to it by a person now deceased is evidence.</p> <p>A written agreement was placed by both the parties in the hands of a common friend, who upon his removal from the scene of the transaction placed it with his father, who died. After proof of these facts, a witness swore thatafter the father’s death, he together with the son-in-law of the father to whom all his papers came, made diligent si-arch among the father’s papers, but could not find the writing. Held, that this ivas sufficient proof of- the loss, to lay a ground for one of the parties to prove the contents, without the oath of the son-in-law himself as to the search and not finding.</p> <p>Upon a descriptive location, the deputy surveyor surveyed more than the usual excess, and without the knowledge of the owner, cut off a part of the survey containing the best lands, and answering most accurately to the description, for which another person at the deputy’s instance entered a location, and got a return for himself. The owner of the first location not being informed of the circumstance, entered upon the disputed part, and improved it. Held, that the return of survey did not prejudice the oldest proprietor, nor benefit the youngest; and that the oldest had title.</p>

<p>in error.</p> <p>tn RROR to the Common Pleas of Indiana county, to gi A . , J 1 ^ remove the record of an ejectment for 217 acres and 18 perches of laird, brought by Johnston the plaintiff below aSainst Thompson, in which the following case was stated, to be considered in the nature -of a special verdict.</p> <p>. . , , , _ Í itle oj plaintiff below. A warrant issued by the Commonwealth .of Pennsylvania to Thomas Johnston for 200 acres of land within the late purchase, dated 17th May 1785. A survey of 217 acres 18 perches and allowance was made on the 17th of July 1785, by virtue of the said warrant, by James Johnston deputy surveyor, adjoining the purchase line. Thomas Johnston the warrantee above named, by indenture dated 3d December 1798, in consideration of natural love and affection and of one dollar, conveyed the said tract of land to James Johnston the plaintiff in fee. The defendant is in possession of the land surveyed as above. The said defendant and a certain Alexander Taylor searched the lines of said tract of land about thirteen years ago, and found the purchase line marked differently from, other lines; and that the diagram made by Alexander Taylor on the 27th of December 1809, by virtue of an order of Court, contains a true representation of the surveys of plaintiff and defendant, and their relative situation, and of the purchase line as run in conformity with the treaty with the Indians at Fort Stanwix. in 1768; and that the land now claimed by plaintiff lies on the north side of said line, and adjoining thereto. The said treaty and purchase from the Indians, and the different acts of assembly relative thereto, to be considered as part of the case, and that the purchase line was run and marked agreeably to the acts of assembly, previous to making the plaintiff’s survey.</p> <p>Defendant’s title. An application was entered on the 23d of July 1773, for 300 acres in the county of Westmoreland, in the name of Charles Porter. On the same day a warrant was issued by the then proprietaries of Pennsylvania to Charles Porter for 300 acres joining Stephen Porter in Westmoreland. On the 14th day of October 1773, a survey was made by Joshua Elder deputy surveyor, by virtue of the said warrant, containing 323 acres and allowance, and which survey is fairly represented in the diagram made as above by Alexander Taylor. Charles Porter by indenture dated the 8th of February 1775, in consideration of five shillings conveyed the said tract of land to James Cannon; and the then proprietaries on the 18th of the same month, granted their patent for the land to Cannon. The defendant settled on the land in dispute in the year 1796, and has cleared eight or nine acres. The purchase line runs through the tract of land in the name of Charles Porter; and the defendant claims the tract under the patent to Cannon above-mentioned. The purchase line above stated was the boundary line between Westmoreland county and the counties thereto adjoining on the north, until the act of assembly, passed the 30th of March 1803, erecting certain parts of Northumberland and Lycoming counties into a separate county called Indiana; the same for a certain time came within the jurisdiction of Westmoreland, and is now Indiana county, and was so at the time of bringing the suit. The commission to Joshua Elder contained only an authority to survey within the purchase of 1768. The survey of defendant was made, and patent granted before the purchase line was run by the commissioners. And if upon the whole the opinion of the Court shall be &c.</p> <p>The diagram of Taylor is not material: it shewed the interference of the tracts, and that Porter’s survey was upon land not then purchased from the Indians.</p>

IN ERROR. RROR to the Common Pleas of Washington county, In the Court below, Toland brought suit against Litle, a justice of the peace of Washington county, for issuing a ji. fa. against his goods, without any previous process or ■judgment.

<p>IN ERROR.</p> <p>F JSL* RROR to the Common Pleas of Indiana.</p> <p>The action below was debt against Young and two others as sureties in his official bond as coroner, taken in the usual form under die act of 28th March 1803. To this the defen^ants first pleaded non est factum and performance, with leave to give the special matters in evidence. On the 12th of June 1812, the plaintiff replied to the plea of performance, “ *he sa-id Samuel Young &c. have not kept and per- “ formed the condition of the aforesaid bond, but have “ broken the same, for that the said William Boals at the term “ September 1808, by the judgment of the Court of Com- “ mon Pleas of Indiana recovered against Thomas MiCartney &c. 181 dollars 37 cents damages together with costs; u whereupon a writ of fi. fa. tested See. at the suit of the said r “ Boals against the said McCartney &c., was issued &c., re- “ turnable &c., directed to the said Samuel Young, then coro- “ nér, and to him in due form of law to execute delivered, “ by. which writ he was commanded &c., to levy the sum of “ &c.: and further commanded that he should have those “ monies before the judges ike. at &c., to render to the said “ Boals: at which term the said Samuel returned, that he had “ levied in full the sum of &c. as. by the writ and the return “ &c. appears. Nevertheless the said Samuel had never “ rendered the money to the said Boals” The replication concluded with a profert of the judgment, fi.fa. and return. ' To this replication the defendants on the 20th July 1812, rejoined that they had not broken the condition of the said bond, in manner and form as the plaintiff had alleged &c., and on this issue was joined.</p> <p>On the same day the defendants pleaded two additional pleas, as follows: 1. “That the said Commonwealth ought “ not to have or maintain her said action against them, be- “ cause they say that previous to a commission having been “ issued and granted by the governor of the said Common- “ wealth to the said Samuel Young, as coroner of said county, “ the said Samuel Young did not with two sufficient sureties “enter into a recognizance, in the sum required by law, “ that he would well and faithfully perform all and singular “ the duties to the said office of coroner appertaining, nor “ was there any such recognizance as aforesaid taken and “ recorded by the recorder of deeds of said county, and “transmitted to the secretary of the said Commonwealth “or filed in the office of the said secretary, nor was the said “ bond recorded in the recorder’s office of the said county, “nor were the sureties named in the said bond, to wit fkc. “submitted to and approved of by the judges of the “ Court' of Common Pleas of Indiana, or any two'of them, “previous to the granting of the commission to the said “ Samuel as coroner, to wit until the 9th of December 1806; “ nor was the sufficiency of the said sureties approved of by “ the governor of the said Commonwealth, previous to the “issuing of the commission;” and so concluded with a verification. 2. “ That at the time of and before the execution “ of the said bond, to wit, on &c. at the county aforesaid, “ the said Samuel was- seized in his demesne as of fee, of “and in a tract of land containing &c., and one certain lot " “of ground situated in the town of Indiana, in the county “ of Indiana, then and there of the value of 500 dollars, and “that no recognizance was taken and recorded in said. “ county, binding the said Samuel Toung for the perform- “ anee of the duties of his said office as coroner, agreeable “ to law; and that by reason of the said recognizance not “ having been taken and recorded, the said Samuel Toung “ hath since, to wit &c. at sáid county, aliened &c. his inter- “ est in the said tract of land to &c., and in the said lot to “ &c.”; and concluded in the same way.</p> <p>On the 15th of September 1812, the counsel for the defendants moved the Court for a rule on the plaintiff to reply to the two last pleas, but the Court denied the rule, and being required to file their reasons, the following were assigned:</p> <p>1. The cause appears to be at issue on the plea of non est factum, and on that of performance; and the contents of the said special pleas, if they could be of any avail to the defendants, might be offered under leave to give the special matters in evidence.</p> <p>2. The Court are of opinion that the plaintiff is not bound in the present state of the cause to put in any replication to the said pleas, and may proceed to the' trial of the issues on the record.</p> <p>The cause came on to trial on the 15th September 1812, when the plaintiff to maintain the issues on his part, gave in evidence the original bond, which was proved by a subscribing witness, but there was no evidence of its having been recorded. The defendants objected to the evidence, but the court admitted it.</p> <p>The plaintiff further gave in evidence the record of the judgment,y?, fa. and return by Young, as stated in his plea, and there rested the cáse.</p> <p>The defendants then asked the Court to charge the jury, that as no commission to Toung, constituting him cproner, had been shewn in evidence, the present action, was not supported. But the Court declared that it was not incumbent on the plaintiff to produce such commission in order to support the action.</p> <p>The defendants further requested the Court to• charge, that the action was not supported, because no evidence had been given of any recognizance having been taken by the recorder of deeds agreeably to the act of 28th March 1803; but the .Court declared that such evidence was unnecessary in support of the present suit. Whereupon a bill of exceptions was tendered and sealed.</p> <p>The errors relied upon in this Court were,</p> <p>1. The refusal of the Court to rule the plaintiff to reply ,- to the two pleas last filed.</p> <p>2. The admission of the bond, without proof of its being recorded, or certified and transmitted to the secretary of state, or that the sureties had been approved of by the judges of the Common Pleas, or that they had been approved by the governor, or that a commission had ever issued to Young.</p> <p>3. The charge of the Court that'it was not necessary to give evidence of a commission having issued to Young.</p> <p>4. The charge of the Court, that it was not necessary to prove a recognizance'to have been taken from Young and his sureties.</p>

<p>IN ERROR.</p> <p>THIS was an ejectment for 142 acres 135 perches of land in Allegheny county, brought in the name of Edward and Sarah Semple by their guardian William Hays, against Morrison and others the plaintiffs in error; in which the following case was stated in the nature of a special verdict, and judgment was without argument entered for the plaintiffs below, that the cause might be removed to this Court.</p> <p>“ Samuel Semple late of Allegheny county deceased, on’ “ the 8th day of February 1808, was seized in his demesne “ as of fee, of and in the tract of land above mentioned, “ with the appurtenances thereunto belonging? and being so Ci thereof seized and possessed, the said Samuel afterwards, “to wit, the same day and year aforesaid, at the county “ aforesaid, made his last will and testament in writing in “ the words following, viz. In the name of God. Amen. I “■Samuel Semple of Allegheny county in Pennsylvania, being “ of sound mind, do make this my last will and testament “ in manner and form following. I do bequeath and devise “ unto my beloved son-in-law Steele Semple, all my real and “ personal property; and I do hereby constitute and appoint “ him the said Steele Semple sole executor of this my last “ will and testament. In witness whereof &c. Afterwards, “ to wit, the 10th of April in the year aforesaid, the said “ Samuel Semple died, leaving issue Juliet, intermarried “ with the late Steele Semple in the said last will and testa- “ ment mentioned. The marriage of the said Steele and “ Juliet took place before the making of the said last will and testament, and both survived the said Samuel Semple “ and had issue two children born alive previous to the “ death of the testator, and the making his said last will. “ Sometime between the death of the said Samuel Semple, “ and the institution of this suit, the said Steele Semple and “ Juliet both died intestate, leaving issue two children Ed- “ ward and Sarah the plaintiffs in this suit, both of whom “-are minors, and whose guardian is the said William “ Hays. The said Steele Semple by a former wife had two “ children, both of whom are still living. The defendants “ are in possession of the land mentioned in the ejectment, “ and claim under a sale and conveyance in fee simple made “ to them by the said Steele Semple in his life time.”</p> <p>' “ If the Court shall be of opinion that the said Steele “ Semple, under the devise in the said last will and testa- “ ment, took,an estate in fee in the'tract of land aforesaid, “ then judgment to be entered for the defendants. But if “ under the devise aforesaid he took but an estate for life, “ judgment to be entered for the plaintiffs.^’</p> <p>argued " that where words of description were used by a testator, a life estate passed; but where he used words denoting his whole interest, his whole estate passed: and that the terms all his real property, particularly when connected with terms embracing the personalty, were the strongest that could be used to denote all the testator’s estate, right, and interest in the premises. They cited 2 Black. Comm. 1. 16. 198., 1 Cruise 1, 2., Hogan v. Jackson (a), Blount's Law Die. Property, Bayley’s Die. same, Jacobs’ Die. same, Hopewell v. Acton (b), Lambert’s Lessee v. Paine (c), Kennon y. M-Roberts (d), Guthrie’s Lessee v. Guthrie (e), Right v. Sidebotham (f), Bridgewater v. Bolton (g), Carter v. Horner (h), 1 Ey. Abr. 176. pi. 7., Id. 177. pi. 14., Ackland v. Ackland (i), 1 Ey. E6r. Wt.pl. 15., Nexokirk v. Newkirk (k), v. Sadler’s heirs (l), Cowper v. Cowper (m), Bowes v. Blacket (n), 18 Fire. 73., Dingley v. Dingley (o), Devinish’s Lessee v. Smith (p), French v. MiIlhenny (q), Loveacres v. Blight (r), Davis v. Miller (s), Cook v. Gerrard (t), 8 Fire. 199. pi. 1., Taylor v. 7F<?¿¿ (u).</p> <p>did not deny the general principle for which the opposite counsel contended, but argued that “property” in this will denoted the thing devised, in the same manner as if the devise had been of all the testator’s lands. He cited and relied on French v. MiIlhenny, and Clayton v; Clayton (v).</p>

<p>the plaintiff in the Motion for a new ftejudge^were equally divided. Atterwards motion for judgment two^udgra bring present. One to bienter^the ^ntl^ttereupon <■!'? clerk mentf!ffeMSthat j¿7gment, this Court presuming that the dissent¡ng judge intend-on foe record, ^ the regular course bftfo»thepro4onotary from entry!S & pl0pei</p> <p>attomies7n thef Court below, to abide by the opi7o™ai°gL7i'eman, UP™ the question tion of the premade to the jfpom^om they hud been taken of/J^asfenforced by lbe court ot</p> <p>1 f the prndpe fora summons in ejectment, parlicularly describes the land it is not necessary for the plaintiff to file another description of the land, according to the sixth section of the act of 21st March 1806.</p>

<p>IN ERROR.</p> <p>X? H RROR to the Common Pleas of Indiana county.</p> <p>The case below was scire facias upon a mortgage given by fohn Hutchinson the testator to Cadwalader Evans, on the 24th of March 1798, of three certain adjoining tracts of land, forming one large tract in Indiana county, stated to contain in the whole 991¿ acres and allowance, described by courses and distances; and with a 'proviso to be void on the payment of two bonds, of the same date with the mortgage, one conditioned for the payment-of 169/. 2s. 9d. on the 7th of June 1798 with one year’s interest, and the other for the payment of the like sum on the 7th of June 1799, with two years interest.</p> <p>The defendants pleaded payment with leave to give the special matter in evidence; and' on issue being joined, the following case was stated, under which the cause was decided in'this Court, a judgment haying been entered below by consent and without prejudice, for the whole sum claimed by the plaintiff.</p> <p>“ It is agreed that the following are the facts in this “ cause, and that they shall be considered by the Court in “the nature of a special verdict.</p> <p>“ The mortgage recited in the scire facias was duly exe- “ cuted and delivered by the said John Hutchinson on “ 24th March 1798.</p> <p>“ The original contract on which the said mortgage was “ given is as follows: Cadwalader Evans, the plaintiff, on- “ 27th May 1797, sold to the said John Hutchinson three “ tracts of land mentioned in the writing of that date, as “ containing 991i acres and allowance, at twelve shillings “.and six pence per acre, to be paid as therein stated; prout “ said writing, No. 1.</p> <p>“ On 22d June the said C. Evans gave a receipt for 63/. “ 15s. part of the purchase money for said land, stating the “ contract and the terms thereof; prout said receipt, No. 2.</p> <p>“ By various other receipts herewith shewn, the whole “ amount of the said purchase money and interest, except “ 442 dollars and 7 cents, has been paid to plaintiff.</p> <p>“ On 1st March 1798, a patent Vas granted to C. Evans for “ one of the said tracts of land, warranted to John Ashmead, “ as containing 345-| acres, and a patent for the tract war- “ ranted to Benjamin Mifflin as containing 318-|- acres.</p> <p>“ On 8th March 17Ó8, a patent, was granted to the said “ Evans for the tract warranted to Joseph Mifflin as con- “ taming 327-1- acres.</p> <p>“ On 23d March 1798, Cadwalader Evans by indenture, “ reciting said patents, conveyed to John Hutchinson the “ said three tracts of land for the consideration of 619/. 10s. “ 6d., frout extract of said indenture, No. 3.</p> <p>“ On 31st May 1810, the lines of the said three tracts of “ land were traced and measured by Alexander Taylor “ under a rule of Court, and found to contain 903 acres and “one tenth, being 88 acres and 48 perches less than the “ number of acres mentioned in the indenture. •</p> <p>“ If upon the whole matter, and the writings above set “ forth, the Court are of opinion that the defendants are “ bound to pay the full amount of the consideration money “ mentioned therein, then judgment to be entered for the “ plaintiff for 442 dollars 7 cents, with interest from 10th ’''•September 1811.</p> <p>“ But if the Court are of opinion the defendants ought “ not to pay for more land than is found to be within the “ lines of said surveys, at the rate of twelve shillings and “ six pence per acre, then judgment to be entered for the “plaintiff for 152 dollars 91 cents, with interest from 10th “ September 1811.</p> <p>“ And it is agreed that either party may take a Writ of “ error without prejudice.</p> <p>No. 1.</p> <p>“ John Hutchinson</p> <p>“ 1797, To Cadwalader Evans - - Dr.</p> <p>“ May, To three tracts of land on the waters of Black Legs Creek, containing 991¶ acres and allowance, sold him at twelve shillings and six pence per acre, - £ 619 10 6</p> <p>J- to be paid down - - - 309 15 3i</p> <p>in one year with interest 154 17 7\ i in two years with interest 154 17 7i</p> <p>£ 619 10 7</p> <p>“ 1797,</p> <p>“ June 7th, Received of John Hutchinson by the</p> <p>hands of William Finley Esq. - - 63 15</p> <p>To be paid in April 1798, 580 dollars. 217 10</p> <p>£ 281 5</p> <p>Whole purchase money 619 10 6</p> <p>281 . 3</p> <p> £338 3 6 </p> <p>to be paid 7th June 1798, 169 2 9|-</p> <p>Juhj 1799, 169 2 9-|</p> <p>/ 338 5 7</p> <p>No. 2.</p> <p>Received June 22d 1797, of John Hutchinson by the hands of William Findley, Esq. sixty-three pounds fifteen shillings, which is to be considered as part of the purchase money to be paid me by the said Hutchinson, for three tracts of land on Black Legs creek in Westmoreland county, surveyed on warrants to John Ashmead, Joseph Mifflin and Benjamin Mifflin in 1773, containing in the whole nine hundred and eighty-one acres and one tenth of an acre, and the usual allowance, at twelve shillings and six pence pet-acre, provided he pays me so much within two months after the date hereof, as with the sum now received, shall amount to one half the whole purchase money at the above price; and as soon as I make him a title in fee for the said land, shall execute to me bonds and warrants of attorney with mortgage on said land, for the remaining half, payable with interest, one half thereof in one year, and the residue in two years from the 27th of May now last past.</p> <p>£63 IS , Cadw: Evans, attorney in fact for</p> <p>Matthew Irwin, surviving partner of</p> <p>Witness, - the late house of Mijflin and Irzvin</p> <p>Andrew Gregg. in Philadelphia.</p> <p>No. 3.</p> <p>Indenture, Cadwalader Evans to John Hutchinson, dated 23d March 1798, selling the three tracts of land in consideration of 619/. 10i. 6(5?., reciting the courses and distances in the several patents, and the number of acres mentioned in each; and proceeding thus, “ doth grant, bargain and sell, “ alien, enfeoff, release and confirm unto the . said John “ Hutchinson, his heirs and assigns, all those three tracts of “ land above described, containing in the whole nine hun- “ dred and ninety-one acres and a quarter, and allowance of “ of six per cent, for roads, &c. be the same more or less” with a covenant against incumbrances “ done or suffered u by the grantor.”</p> <p>contended that they were entitled to an allowance for the deficiency, on the authority of Clute v Robison (a), Sugden 200., Finch. 80., 2 Cha. Ca. 195.</p> <p>relied upon Boyd v. Bopst (b), Sherwood v. Salmon (c), Bayly v. Merrel (d), 1 Poxv. on Cont. 238. 423., Russel v. Guhvel (e), Mann v. Pearson (f), and Higgins's case (g).</p>

<p>IN ERROR.</p> <p>HIS was an ejectment brought against Patrick Campbell the intestate, to March term 1797, in the Common Pleas of Westmoreland. The Narr laid the demise on the . - .... of January 1793, for ten years. Alter the institution oí the suit, it was removed to the Circuit Court, where in the Court on motion enlarged the term to fifteen years, . . ° . J . 7 and m November 1800, it was tried and a verdict lound m favour of the plaintiff for one undivided moiety of the lands in question. After the judgment, the original dant took a lease from Gratz, and a new lease was after-wards granted to William Campbell, son of the original defendant, by Gratz’s devisee, between which parties a dispute had arisen as to possession. At May term 1811, a writ of habere facias was issued, together with a fi.fa. for costs, and under these executions, possession was delivered, and the costs made. A motion was then made to set aside both executions; but the court merely set aside the ft. fa., and suffered the other to stand.</p> <p>moved the Court to enlarge the term to 25 years, upon the ground that the term is merely a fiction, that the powers of a court of error are as competent to amend in such a case, as those of the original court, and that in point of principle there is no difference between enlarging the term to support the judgment, which is done every day, and enlarging it to support an execution, which is the object here. He cited Tillotson v. Cheetham (a), 2 Tiddds Practice 1028., 1 TidedsPractice 662., Crasner v. Van Alstyne (b), and Dunlap v. Speer (c)</p> <p>said that the motion was made in order to support an execution illegally taken out, which was contrary to all precedent; that further, the plaintiff had been in complete possession by his lease to the tenant, and ought to pursue the usual remedies between landlord and tenant; that the present tenant was not the party recovered against, and that as tenant he was entitled to notice to quit, instead of having air execution sprung upon him from a judgment that had been sleeping thirteen years. That whatever might be the power of the Court, they would not exercise it under circumstances like these.</p>

IN ERROR. THIS was an ejectment in the Common Pleas of Venango, by Charles Campbell the plaintiff below. Upon the trial of the cause, the facts were these: An improvement was made in the year 1796 upon the land in question, which lay west of the Allegheny, for the use of * 7 J ° john Field; and a settlement was comnienced at that time virtue of the act of the 3d April 1792, and continued up to 21st January .1802. On that day Field sold to Campbell, J J ■ ■> .

IN ERROR. SlANDER in the Common Pleas of Mercer. The declaration laid the words to have been spoken by Tait as follows: “ It is a rascally business.

IN ERROR.. ' P' iijJIS was an action of trespass in the Common Pleas 4- of Westmoreland, for breaking and entering the house of the plaintiff Paid, and taking away sundry goods. The defendants pleaded non cul. with leave to give the spe- ....... cial matter m evidence.

IN ERROR. THIS was an ejectment in the Common Pleas of Indiana, for 213\ acres, which the executors of Johnston, the plaintiffs below, claimed under a warrant of the 8th December 1774, in favour of Stephen Porter, for 200 acres on Stoney Run. On this warrant a survey was made on the 24th November 1775 by Joshua Elder, deputy surveyor, for 213^ acres. On the 1st March 1782, Porter conveyed to Johnston the testator, who obtained a patent from the Commonwealth.

<p>IN ERROR.</p> <p>THIS was an action against Sanderson the testator, on the custom as a common carrier, for not delivering to Lamberton a barrel of castor hats, which in consideration of , ,. , , _ two dollars, he had agreed to carry from Philadelphia to Carlisle. The suit was instituted in the Common Pleas of Cumberland, and during its pendency Sanderson died, and ,. , 1 Xus executor was made a party, by scire Jacios. In this Court -it was argued upon the following special verdict, on which the Court below gave judgment for the plaintiff,</p> <p>“ The jurors empannelled and sworn to try the issue “ joined in this cause, respectively do find, that the plain- ££ tiff James Lamberton, on the twenty-eighth day of April “ Anno Domini one thousand seven hundred and ninety-six, “ being in the city of Philadelphia, bargained and contracted . r 7 r. 7 -1 11 , . with a certain John ¿temple, then and there being a “ mon carrier, to carry for hire, a barrel containing twelve C£ castor hats, the property of the said James Lamberton, “ which said barrel with its contents, the said John Semple <£ agreed to deliver in a reasonable time, to the said James ££ Lamberton, at his store in Carlisle, which said barrel of “ hats, were at the time of the aboye contract, deposited “ with Benjamin Scull of' the said city. The jurors afore- “ said do further find, that the said John Semple after-t£ wards, without the direction of the said James Lamberton, “ did engage and contract with a certain John Chambers, ££ then and there being also a common carrier for hire, that t£ he the said John Chambers, would deliver the said barrel of ££ hats to the said James Lamberton, at his store in Carlisle, “ in a reasonable time. And the jurors aforesaid respec- “ tively do further find, that in pursuance of the agreement ££ so made, between the said John Semple and the said “ John Chambers, he the said John Chambers received the “ said barrel of hats from the said Benjamin Scull, and that £1 the said John Chambers then and there, without the know- “ ledge or direction of the said James Lamberton, did agree “ with Robert Sanderson, the defendant’s testator, (the “ said Robert then and there being a common carrier for “ hire) that the said Robert should carry the said barrel of “ hats, and in a reasonable time deliver the same to the “ said James Lamberton, at his store in Carlisle. And the “ said John Chambers, did then and there undertake that “ the said James Lamberton would pay him the said Ro- “ bert, for the carriage of the said hats, the sum of two “ dollars, upon the delivery of the said barrel of hats at “ the store of the said James Lamberton, in the borough of “ Carlisle. In pursuance of which said agreement, the said “ Robert then and there received from the said John “ Chambers, the said barrel of hats. And the jurors afore- “ said do further find, that the said barrel of hats was not “ delivered to the said James Lamberton, at his store “ in Carlisle, in a reasonable time by the said Robert, but “ that the same was entirely lost by the negligence of the “ same Robert Sanderson. But whether the plaintiff is en- “ titled to recover &c., the jurors are ignorant, and pray “ the opinion of the Court. And if the Court shall be of “ opinion in favour of the plaintiff,'then the jury find for the “ plaintiff the sum of one hundred and twenty-eight dollars “ and twenty-nine cents damages, and six cents costs. But “ if the Court shall be of opinion in favour of the defen- “ dant, then the jurors find for the defendant.”</p> <p>that here there was an express contract made between Chambers and Sanderson, which negatived any implied contract between the latter and Lamberton; and that as Sanderson could not have recovered his compensation from Lamberton, neither could the latter recover the value of his goods from Sanderson. The action against the carrier must be in the name of the consignor who agreed with him, and was to pay him; and in this case Chambers was the consignor, acting for himself, and not for Lamberton, because Lamberton gave no authority to Semple to make a contract for him, nor did Semple give any to Chambers. The contract by Lamberton was specially made with a carrier of his own choice. He neither narped Sanderson as the carrier, nor was Sanderson employed under a general order given by Lamberton to employ any carrier. He therefore cannot maintain the action. Duncan v. Keiffer (a), Davis v. James (b), 2 Com. on Con. 315.</p> <p>Sanderson!s estate is clearly liable, and the only question is, by whom the action should be brought. The present action avoids circuity, and that is of itself a strong argument for it. But in addition to that, the contract with Sanderson was clearly made for the benefit of Lamberton, and he has therefore a right to affirm it, and sue upon it. He has affirmed it by the suit. Still further, he was the owner of the goods, and an action against a common carrier may be supported in the owner’s name, althoúgh, he has not named the particular carrier. As to the compensation of Sanderson, he had a right to retain for it. Schemer-horn v. Vanderheyden (c), 1 Selw. N. P. 339., Snee v. Prescot (d), Godfrey v. Furzo (e), Evans v. Marlett (f), Skinner v. Upshaw (g).</p>

IN ERROR. Ei ' EJECTMENT in the Common Pleas of Huntingdon. ° > The defendants offered in evidence below, two entries upon tire docket of the Common Pleas, purporting that on the 9th of September 1791, a motion was made to take the sheriff’s acknowledgment of a deed to Andrexv Henderson, one of the defendants, for 400 acres of land, sold as the property of Édxvard Rickets; that it was opposed by the counsel of Rickets, and continued to December Term; and that on the 9th of…

IN ERROR. IN this case, which was assumpsit in the Common Pleas of Franklin county against Snider as sheriff, to recover the proceeds of sale of a house and lot taken in execution at the suit of the plaintiff against Michael Immei, the following statement of facts was submitted for the opinion of that Court, and was the basis of the argument in this, “ Samuel Colhoun, having obtained a judgment in the Com- “ mon Pleas of Franklin county, by confession of M. Immei, “ on…

<p>IN ERROR.</p> <p>THIS was an action of covenant in the Common Pleas of Franklin county, by Nichols against Ohermy er. The breach laid in the declaration was the non-payment of rent; and the defendant pleaded non infregit conventionem, with * ^ w leave to give the special matter in evidence.</p> <p>On the trial of the cause, the plaintiff gave in evidence certain articles of agreement under seal between him and the defendant, dated the 13th of March 1807, of the • mg’ import:</p> <p>Bv these articles, Nichols, in consideration of the rents J ' J , ; . and covenants to be paid and performed by ObermyeTy leased to him a certain grist mill, dwelling house, and stabling, in Franklin county, for the term of four years from the date. Ohermyer was also to have certain privileges or fuel, pasture, meadow and fruit trees, and possession was to be delivered on the 1st April 1807. Nichols on his part covenanted to build an addition to the dwelling house of certain -dimensions, and of a good quality, to furnish boards for makine- a counter and shelves in the store-house, which w , ' Ohermyer was to make according to his pleasure, and the house was to be done between the date of the lease, and the first of 'inly thereafter. Nichols covenanted also to make a J , . , . husk floor to the mill, and certain other improvements, which were to be completed on or before the 1st of Septemher 1807; Ohermyer to board the workmen, to be allowed a J . i i nr.rr , dollar a week tor the board, and to pay Nichols IS dollars when the store-house should be completed. In consideration of the premises, Obermyer covenanted to pay i , , . , . 7 7 annual rent oí 175/. during the -term, with a. proviso that he should be at liberty to quit the premises before the expiration of the term upon giving lawful notice; to grind r 1 1 77 °r ,7" 7 7 7 7 ° 7 tons or plaster annually ior Nichols, and to keep the mill in good repair at his own expense. .</p> <p>The plaintiff further gave in evidence, that the defendant entered into possession of the premises on the 1st of April 1807, and remained there till the 1st oí .April 1808; and that the plaintiff built an additional house before the 1st of July 1807.</p> <p>The defendant gave in evidence, that the plaintiff did not on or before the 1st of September 1807, make the improvements in the mill; and that the house built was not as good as the articles called for, and that he was not able to use it as beneficially as he would have done, if of the quality contracted for.</p> <p>The plaintiff then shewed, that the defendant in the summer of 1807, had declared his intention to stay no longer on the premises; and that the improvements which Nichols was to make in the mill, were not essential to the well going of the mill.</p> <p>Whereupon the Court charged the .jury, “ that the defen- “ dant having enjoyed the mill and premises, all the other “ covenants on the part of the plaintiff were minor and su- “ bordinate, and not going to the essence of the contract, “ nor to the whole of the consideration, so as to defeat the “ rent in toto; — that in case they or any of them were not “performed by the plaintiff, the jury were at liberty to “ defalk in damages from the rent payable to the plaintiff, “ whatever they might think just and conscientious, in-like “ manner as if the defendant had brought an action against “ the plaintiff; and the defendant was to have the benefit of “ the aggregate of damages on the different breaches alleged, “ as the same might have been given if such action had “ been then trying before the jury. Interest might be given “from the time the rent was payable, on the balance, if “ any, which the jury might find payable to the plaintiff.” The defendant excepted to the charge. Verdict for the plaintiff 422 dollars damages.</p> <p>The cause was argued in this Court, at the last term, when</p> <p>contended that the charge was erroneous, 1. In saying that the covenant to repair was not essential to the contract, which should have been left to the jury. 2. In saying that interest was recoverable upon rent. They cited Bantleon V. Smith (a), Cook v. Wise (b), 1 Sound. 320, note a.</p> <p>in support of thé charge, and cited 6 Bac. Abr. 631., Trial A.; 1 Sound. 320., note b. c.; 1 Tidd Pr. 384.; Crawford v. Willing (c), Albright v. Pickle (d), Kennon v. Dickens (e), Greenleaf v. Kellogg (f), Clute v. Robinson (g) Clark v. Barlote (h), and The Delaware Ins. Co. v. Delaunay (i).</p> <p> Cur. adv. vult. </p>

tíí EKR0R. jw ■» ■* RROR to the Common Pleas of Huntingdon« The parties having had a controversy in relation to an exchange of lands, Blnckburn and Confare instituted an ejectment, in which by consent judgment was entered for the plaintiffs, and by rule of Court it was referred to three ,, , , . . -, , . ~ , men, “ who taking into view all the circumstances or the “ transaction, were to make report what sum was to be paid “ to the defendant, the plaintiffs holding both…

<p>Prisoner discharged, because the. warrant was coun^Joifeftiissioners to collect a nne, and mention. ed no proceeding iuraffesued; nor the bJrifg° b" f if the proceeding ?mposbg\™hadal been shewn, the left the prisoner noUiavetideéided summarily upon the merits.</p>

IN ERROR. IN this case, which was a writ of error to Franklin county, it appeared by the record, .that Scheaffer the plaintiff below, had entered a rule of arbitration, and defendant not attending according to notice, he and the , , , ,: . c , , prothonotary nameq arbitrators-, who, at a meeting ot which the defendant also had notice but omitted, to attend, found ah award for the plaintiff.

IN ERROR. Cumberland ERROR to the Oyer and Terminer of L„............. J . - county, to bring up the record of an. indictment aim . . Held: in and upon “the right side of the head, near the right temple of him “ the said Samuel Sampson, then and there feloniously, wil- “ fully, and of his malice aforethought did cast and throw; “ and that he the said Edxvard White with the stone aforesaid, “ so as aforesaid cast and thrown, the' aforesaid Samuel “ Sampson, in and upon…

<p>The Courts of have^ower under for the relief debtors, to ap- , vhevc those first apto actTÍnd tíf c0™PeI ,:,ie vey their interest t£emereappointrae.nt oln®w Court does not vent’s lands in 0I,t an ejectment,</p> <p>an insolvent863 ° myy lnst|-‘ tote an cicct* ment, without ractei^upon the*"</p> <p>of an insolvent debtor passes all his property, ¿oiíSin the" schedule annexed not!'3 petltI0n’01</p>

<p>T HIS was an appeal from the decision of Brackenridge J. at a Circuit Court for Cumberland in April 1809,</p> <p>, Arnold Duncan, and his wife, who was one of the daughters and legatees of Robert Patterson deceased, brought this action of account render against Forrer as the surviving executor of Patterson. The issue on which the cause went ■ to trial was never bailiff or receiver; and the verdict being for the plaintiffs, judgment quod computet was entered in the Circuit Court. JBy the report of his honour, the case was .thus:</p> <p>» Christian Garber, by articles of agreement dated the 29th of May 1792, covenanted to convey to Patterson and Forrer their heirs and assigns, a piece of land containing 50 acres by metes and bounds^ in consideration of 606/. payable by instalments, and of the making for him two tons of bar iron in two and three yeárs from the date. Upon the 12th June following,- Garber conveyed by deed the land to Patterson and Forrer their heirs and assigns, “ to have and to hold “ the same to them their heirs and assigns, to and for their “ proper use for ever.” On the 26th September 1792, Patterson made his will, whereby he directed that the whole of his estate real and personal should be sold, and devised one third to his widow, and the remainder to his nine children. He appointed his widow and Forrer, who had intermarried with one of his daughters, executors; and on the 9th of October 1792, letters testamentary issued to both executors. On the 14th of April 1798, the widow having died, Forrer and his wife executed a conveyance to John Douglass and others of the premises, in- consideration of 2850/. It recited the title of the patentee, and the mesne conveyances down to Patterson and Forrer, and that Patterson died seized of one moiety of the lands, having first made his last will, thereby appointing his executors, with power to them or the ^survivor of them to sell; and the grantors then conveyed the lands with warranty, without further mention of the authority in the will. The suit was brought to oblige the defendant to account for a moiety of the proceeds of this sale.</p> <p>It appeared on the trial, that Patterson had paid a larger portion of the consideration money than Forrer, but the precise difference was not ascertained. The widow paid 100/. out of the funds of the testator, and Forrer paid 180/. after Patterson!s death. He also made many valuable improvements on the premises, estimated at above 15001. One of the witnesses testified, that he understood the purchase was made, for erecting a forge for the manufacture of iron by Patterson and Forrer; but nothing was done by them in further prosecution of that object.</p> <p>It was admitted at the trial that a jointenancy was created by the words of the deed from Garber; but the judge delivered his opinion to the jury, that under all the circumstances of the case, the plaintiffs were entitled to a verdict, and he also gave his opinion, that the will of Robert Patterson was a severance of the jointenancy, and defeated the jus accrescendi.</p> <p>contended for the same doctrine in this Court. He argued: 1. That though a legal joint-tenancy, it was an equitable tenancy in common, in consequence of the object for which the land was purchased, viz. for the manufacture of iron, and in consequence of the unequal contribution of the parties toward the purchase; for which purpose he cited Lake v. Craddock (a), Rigden v. Vallier (b), Caines v. Lessee of Grant (c), Sugden 407., and Addison!s Rep. 330. 2. That in Pennsylvania, a last will was a severance, by virtue of the Laws agreed upon in England, No. 15., 1 State Laws App. 22., by which it was provided, that wills attested by two witnesses, should be of the same force as to lands,, as other conveyances; and also by the first section of the act of 1705, 1 State Laws 53., by which last wills were made good and available for conveying, granting, and assuring lands.</p> <p>He also argued, that the recital by Forrer in his deed to Douglass, amounted to a declaration, that he held as to one half in trust to execute the will of Patterson; which was equivalent to a covenant by him so to hold it. 1 Powel on Con. 237., Griffith v. Penrose (d)</p> <p>answered, that as the judge had told the jury that the will was a severance, there must be a new trial. For that doctrine there was no warrant, unless by a last will a man could make a fee simple out of an estate tail, or could give away that, which ceased to be his before his will took effect. That in point of equity, there were no circumstances to alter the law of the case, this not being a purchase for a partnership, or to expend money upon in improvements; and that as to the recitals in ForrePs deed, they were made to satisfy a purchaser, and at all events could not be taken advantage of by strangers to that conveyance. They cited 2 Cruise 504. 525., Co. Litt. 185, sec. 286., Co. Litt. 352 a. b.</p>

<p>IN ERROR.</p> <p>r I ‘'HIS was an action of debt in the Common Pleas of *** Franklin, brought by M1-Do-well upon a single bill given Burd for 200 dollars, dated the 23d of February 1808, and payable in three months after date, with interest. The defendant pleaded payment, with leave to give the special matter in evidence, T</p> <p>At the trial of the cause, it was proved, that the consideration of the bill was a negro boy sold by the plaintiff to the defendant for a term of years. The defendant then offered • to prove, that before, at and after the time of sale, the negro was afflicted with a disorder which made him of little value. The plaintiff objected, but the Court admitted the evidence, and sealed a bill of exceptions.</p> <p>contended that the evidence was admissible, 1. Because the defendant had not previously shewn that the plaintiff knew of the unsoundness; for as there was no warranty, knowledge of the unsoundness was essential to make him responsible. Seixas v. Woods (a), Frost v. Raymond (b), Snell v. Moses (c), Perry v. Aaron (d), Defreeze v. Trumper (e), 1 Roll. Abr. 90. pi. 4. 3., 1 Fonbl. 109, 110., 2 Peak. Ev.. 228., 2 Roll. Rep. 5., Chandelor v. Lopus (f). 2. Because the only question could be as to unsoundness at the time of sale; unsoundness before and after had nothing to do with either fraud or the contract. 3 Bl. Comm. 165.</p> <p>It was necessary first to prove the unsoundness, and then, if there was no warranty, the plaintiff’s knowledge. At most, the order of the evidence was immaterial. It is however not clear that proof of knowledge was essential. It has been settled in England that a sound price does not imply a warranty, though the law there was once otherwise; but it has never bepn so settled in this state. In Timrod v. Shooibred (g), it was held that a sound price for a negro, warrants against all defects known or unknown. As to the evidence of unsoundness before and after the sale, it was proper for two reasons: first that the jury might infer from the duration and circumstances of the disease, the plaintiff’s knowledge of it; and secondly that they might be informed of the degree of unsoundness, and that it was not an occasional infirmity.</p>

<p>The master of an apprentice earmot take him out of the state where the indentures were executed, unless the indentures give the power, or it follows from the nature of the mystery which the apprentice is to learn.</p>

r | ''HIS was a habeas corpus issued to Joseph Clements, to bring up the body of Susan Stephens, in his custody, together with the cause of her detainex*. The defendant made return, that he held her as a servant by indenture dated the 3d September 1813, by which she bound herself to serye him for the tei-m of three years. The writ was returnable before the Chief Justice; and in consequence of its novelty, the case was heard before the whole Court.

THIS was a habeas corpus to the jailer of Philadelphia / . •> .

<p>Goods consist°obaccoa’&edI" were insured in Octoher 1799, on board thfe ship Gadsden, from Newport, lihode Island, to Passage in Spain. The goods, were part of a cargo, which had been imported in the same ship from Laguira to Charleston, and there by permission of the custom house officers, suffered to remain on board, being- entered for exportation and bonds given for the duties. Other goods were then put on boai-d, with, which she sailed for Passage; hut being forced in consequence of an accident to put into Newport, the whole cargo was there taken out, and after some repairs was reshipped in the same vessel, which then sailed upon the voyage insured. The order of insurance only mentioned the kind of goods, but nothing was said of the importation from Ljaguira, nor of the circumstances attending tlie exportation from Charleston, although the British order of 25th January 3798, Was then well known in the United States.</p> <p>Ileld'l. That this was a material concealment which avoided the policy.</p> <p>2. That the underwriters were not hound to enquire .into the origin or history of the cargo, in consequence of knowing- that the articles insured were such as the Spanish colonies produce; but it was the dut3r of the insured to inform them.</p> <p>3. That by the true construction of the order of January 1798, the voyage from the colony to the mother country must be indirect, and not merely the course of the voyage: and</p> <p>4. Whether the importation at Charleston was legal or not, it was at least so unusual and suspicious, that it was tho duty of the insured to communicate it to the insurer.</p>

THIS Was an action of covenant upon a charter party, which was tried before Brackenridge J. at Nisi Prius, •in November last, when several points were reserved for the consideration of this Court.

THIS was an action of covenant, in 'which the defendant since the last continuance pleaded as follows: “ and for further plea the defendant comes and says, that the “ tiff ought not further to have or maintain his aforesaid “ action, because the said William.

<p>One who swears wilfully and deliberately to a matter that he rashly believes, but which he has no probable cause for believing, and which is false, is guilty of perjury..</p>

THE plaintiff obtained a judgment by arbitration on the 22d of last month, for about 110(3 dollars; and the fendant by an entry on the docquet suggested his freehold, to obtain a stay of execution under the act of 21st March 1806, sec. 7. - Binneit obtained a rule upon the .defendant, returnable J A . this morning, to shew cause why this suggestion or plea should not be struck off the record, upon the ground that the defendant had not such a freehold as was intended by J the…

TN this case, the lands of the defendant had been sold by Jabez Hyde, late sheriff of Luzerne county, under a testatum venditioni, issued out of this Court returnable to December Term 1813. The purchase money having been paid, the sheriff made a deed for the lands, to Henry Drinker the purchaser; and acknowledged the same on the 29th of October 1813, at the Wilksbarre Court of Common Pleas.

<p>paret™°wi£ntUe “to.fCougress of 1813, for the ennoi^úudU^tKe minor has neither tather, master nor guardian, her ^ toVis” n”6*" listmcnt.</p>

r It 'HIS'was an action against the defendant as the indor6 u ser ox two promissory notes, one dated the 5th of Febnuary 1803, for 1250 dollars, drawn by Andrew Hadfeg £c? Co. payable to tbe order of Peter Lohra, ninety days , , , , , , _ J J alter date, and the other dated the 9th of February 1803, ^or 1250 dollars 50 cents, drawn by the same persons, and payable to the same order, and at the same time as tbe first.

<p>rTHHIS cause was tried before the Chief Justice at a Nisi -**- Prius in February last, when a verdict was given for the defendant; and now, upon a motion by the plaintiffs for a rule to shew cause why there should not be a new trial, his Honour reported the case to be as follows:</p> <p>The action was brpught against the defendant as master of the ship Volunteer, for not delivering to the plaintiffs or their assigns at Philadelphia, 230 barrels of refined saltpetre, agreeably to a bill of lading signed by him in London ;on the 21st of October 1808, and for unlawfully selling the same at St. Thomas. The invoice price of the* saltpetre was 1067/. 1a'. 4d. sterling. It was valued in a policy by the Phoenix Insurance Company at 8500 dollars, and for their use the present action was brought, they having paid the plaintiffs a total loss, and received an assignment.</p> <p>The vessel by great stress of weather, and in consequence of much injury from storms and tempests, was obliged to take refuge in the Island of St. Thomas, where she arrived in the month,of February 1809. Surveys were held upon ship and cargo in the same- month, by which the former was condemned as unseaworthy, and the latter, expressly _ including the saltpetre, was stated to be generally damaged by'sea water. It was therefore thought advisable to sell; and accordingly the entire cargo was sold at public auction between the 3d and 16th of March, the saltpetre producing very little. There was no supercargo on board, and the defendant applied for advice to Messrs. B.adderack a house of the first respectability in the island. The cargo, excepting the saltpetre and some books, sold pretty well.</p> <p>The plaintiffs, and others who were owners of parts of the cargo, having heard of the ship’s arrival at St. Thomas, despatched J. W. Perit as their special agent, with full powers to act as might be necessary. He was intrusted by the plaintiffs to bring the saltpetre- to Philadelphia, unless it should be damaged, or would bring 30 cents a pound on the spot. When he arrived at St. Thomas, which was in April, he found that the entire cargo had been sold, and that the defendant, having settled'his accounts with Messrs. Badderack, was about to depart to the United States, with bills of exchange to the aSB&unt of the net proceeds; and either by persuasion, or the menace of a suit, he prevailed on the defendant to remit the bills to Messrs. Guest and Bancker of Philadelphia, accompanied by a letter; in which he made an appropriation of different sums to different persons, according to their respective interests- in the cargo. At the same time, Mr. Perit as the attorney of those persons, gave a written engagement to the defendant, by which it was stipulated that in consequence of the whole proceeds having been remitted, his constituents should pay to the defendant the amount of his lawful claim for freight, services and expenses.</p> <p>The evidence as to the damage done to the saltpetre, -was rather contradictory. Mr. Perit swore that the surveyors of the cargo were men of the first respectability; that he saw part of the saltpetre which he considered to be damaged, but he did not examine it very particularly; that he did not know that he should have sold it, as it was in a condition in which it might have been brought to Philadelphia; that it was in bulk when he saw it. Saltpetre, he stated, is not a perishable article, the part not damaged remaining good as before. That he did not know any vessel that the defendant could have got to come to Philadelphia, the vessels ■there being embargo breakers. He did not consider himself as finishing the business with the defendant, at St. Thomas, ■but as leaving it to be concluded at home. Shortly after his arrival in the island he wrote to his principals, that the conduct of the defendant appeared to have been correct and. judicious, and so it then seemed to him. On the other hand it appeared that the saltpetre, which was sold for 7 dollars the keg, was exposed in bulk to the. sun and air; that it was then repacked, when about 10 kegs were lost out of the 230, and the residue proved good and merchantable, and was sold for 25 dollars the keg.</p> <p>The. plaintiffs' counsel contended before the jury, that the «ale was unlawful; because, as the article was not perishable, as the damage it had received was little or nothing, and as the master did not want money to repair the ship, she being condemned and sold, his duty was to store the saltpetre, and give notice to the owners. He had therefore made himself liable by his misconduct. They relied upon the following authorities. Abbot on Ship. 158., 2 Condy's Marsh. 171 note. The Gratitudine (a), Fano?nero?iv. Doxvick (b), Hunter v. Prinsep’(c).</p> <p>The defendant's counsel contended that the master had acted like a prudent agent, and within the scope of' his authority; that the saltpetre was generally damaged, and therefore within the plaintiffs’ rule he had a right to sell; but that independent of this, as the voyage was fairly broken up, and the cargo was miscellaneous and principally damaged, the-master was not bound to preserve the particular parts not damaged, but might sell the whole. The breaking up of the voyage made the difference. For this they cited Mills v. Fletcher (d), 2 Marsh. 615., 1 Marsh. 170., Manning v. Nexunham (e), and also relied on the plaintiffs’ authorities.</p> <p>They also contended that the plaintiffs were barred from recovery by the act of their agent, in relation to the bills, and by their own receipt of the proceeds of the saltpetre.</p> <p>The Chief Justice reserved the last point, instructing tire jury to consider it as decided in favour of the plaintiffs. As to the main question, he instructed them in the law, as it is hereafter stated in his opinion; and concluded by saying, that if the saltpetre was in their opinion so much damaged as to make a sale expedient, they should find for the defendant, otherwise for the plaintiffs.</p>

HTMilS was an action of debt upon an administration bond, H . , , , , . , . , , . ■*' m which the defendant was surety for the- admimstrators of-Sharpe Delany.

THE defendant was indicted for fornication with one, Sarah Myers, and begetting a bastard child on her body; and upon the trial before Yeates J. in July last, he was convicted. The defendant now moved for a new trial, and his honour reported that the' case was as follows: Sarah Myers the prosecutrix was married in the year 18Q1. She lived with her husbánd two or three years after — -..-•.v-ji iii the marriage, when he went off to JVerv York where he had resided ever since.

* 1 was a scire facias upon a judgment obtained on the official bond of Frederick Wolbert, late prothonotaxy ^ Court of Common Pleas of the city and county of Philadelphia, for money due to the Commonwealth on account of a tax on the fees of his office.

<p>rT'iHIS was an action of trespass, assault and battery, and false imprisonment, against Isaac Deaves president of a militia court martial, Joseph Lloyd the judge advocate, and John Smith marshal of the Pennsylvania district, bail 3000 dollars; and it came now before the Court upon a rule to shew the cause of action, and why the defendants should not be discharged on common bail.</p> <p>The plaintiff’s affidavit set forth, that some weeks since he was served with a notice signed by Deaves, requiring him to appear before a court martial, to answer for a disobedience of orders of the President of the United States, in not appearing at a muster of militia, held on the 19th of April 1813. He did not appear as required by the notice. He was shortly afterwards called on b y Deaves, with a note from Lloyd the judge advocate, requesting his attendance before the court martial. This note he also disregarded. In consequence of this a guard of soldiers was sent to his dwelling house the next morning; and the plaintiff being absent, they searched all the rooms of the house, and the cellar, in order to arrest him. The guard returned the next morning, and the plaintiff seeing them, concealed himself in an adjoining house. They again went through part of the plaintiff’s house, and threatened to billet themselves in his house, and to eat and drink at his expense, until he surrendered himself, and appeared before the court martial. After the guard retired, he went to the court martial. Deaves presided, and Lloyd acted as judge advocate. The latter informed him that he was brought there under a charge of disobedience of orders of the President of the United States, and inquired whether he had any thing to offer in extenuation. The plaintiff answered that he was in the service of the bank of Pennsylvania at the time, had a family to support, and could not attend the muster of the militia. Some weeks after, the plaintiff went with the marshal’s deputy to the marshal, upon the subject of the fine assessed upon him by the court martial, and the marshal told him he must pay it, or go to jail. The deputy afterwards called upon the plain-■ tiff at a stage office where he was employed, and told him he had orders from the marshal .to take him, and th.at he had -better go with him and see the marshal. He went. The marshal repeated that he must pay the fine or go to jail, that his deputy would go with the plaintiff among his friends to try to get the money. The plaintiff requested the -marshal to call at the stage office at five o’clock, it then being dinner time. The marshal refused. The deponent then left the marshal’s office in custody, and went to the stage office where he remained about an hour, and was then taken towards the jail. After going some distance, he returned with the. deputy to the stage office, and sent for the proprietor to ask his advice. The proprietor offered to pay the fine. The plaintiff said he preferred consulting counsel, which he was permitted to do; and counsel having advised him not to pay, he was committed to prison. After he was in prison, the proprietor of the stage office paid the fine of 30 dollars, and the keeper’s, costs, and the plaintiff was discharged.</p> <p>The affidavit then proceeded to state that the plaintiff was a man without any property, which he had stated to Deaves before appearing at the court martial, and to the marshal before the arrest; that he did not attend the muster on the 19 th of April 1813, nor did he at any time enroll himself as a draft in the service of the United States; and as he had been advised, the proceedings against him were not sanctioned by law.</p> <p>Two questions were made in the case; 1. Whether the court martial was authorized by law to inflict the fine upon the plaintiff. 2. If not, whether the plaintiff was entitled to bail. On the first question, as a majority of the Court gave no opinion, and the point involved several acts of congress and of this Commonwealth, an official correspondence, and a variety of military orders, it is unnecessary to state the argument; On the second, supposing the Court to have had no authority,</p> <p>contended, that as it was a casé involving the liberty of the citizen, and the sanctity of his home, which had been brutally violated by the guard, and as the invasion proceeded from a military court whose encroachments were always watched with jealousy, and punished with exemplary rigour, it was the duty of the Court, exercising a just discretion, to hold the defendants to bail. They cited 1 Sellon 35., Frye v. Sir Chaloner Ogle (a), 2 AD Arthur 242., Lehman v. Allen (b).</p> <p>that the general rule was against holding to bail in actions of trespass; and that the Court exercised its discretion in ordering it only in flagrant cases, as of an outrageous assault and battery, or when there had been an oppressive exercise of military power as in Frye's case, or where the defendants were about to leave the state. 1 Crompton 35. In the present instance there was no feature of oppression, but on thé contrary a disposition manifest throughout to perform the duty incumbent on the defendants, in a lenient manner. The conduct of the guard was unauthorized.</p>

IN this case the writ was in trespass for an assault and battery, and the declaration contained three counts, the first two for assault and battery, and the third for the misconduct of the captain as master of the ship Piscataqua, in 1 . . , . - r causelessly dismissing the plaintiff from his post ot mate ot that ship.

THIS was an action on the case against the defendants, for not executing the plaintiff’s order for insurance.

r I NHIS was an action of trespass, assault and battery, and, false imprisonment, tried before Teates J. at a Nisi Prius in January last. The suit was against John Hart, George Peters, John Fries junior, and Jacob Wenn. Hart and Peters pleaded not guilty with leave to justify, and on this issue went to trial. The other two defendants did not plead at all, nor was judgment taken against them by default.

IN ERROR. E iRROR to the Common Pleas of Wayne county. The action in the Court below, was brought by Otto fames against George Biddis administrator of yohn Biddis, to recover 10,000 dollars, the amount of a prize drawn by the plaintiff in a lottery made by the intestate in his life time, but not drawn till after his death. 7 , , , . - • , The act under which the lottery was formed, was passed on the 20th yanuary 1806, entitled “ An act “ fohn Biddis to vend his patent…

IN ERROR. r ■ tHIS was a qui tain action to recover from Beniamin Garngues the penalties imposed by the sixth section ^le act °f 12th March 1789, for selling twelve barrels and eight half barrels of salted pork, which were not brand- . r 7 eel or inspected.

IN ERROR. IN Error to the Common Pleas of Chester, the case was as follows: Samuel Thomas the plaintiff below, entered into an agreement with James Massey in the following terms: “ Arnica- “ ble action of ejectment in the Common- Pleas of Chester county.

^TTIIS was an ejectment for a brick messuage and lot of ground, situated on the south side of Chesnut street in *be city of Philadelphia.

<p>IN ERROR.</p> <p>THIS was a writ of error to the District Court of the , . , . , city and county of Philadelphia, where a judgment had been rendered in favour of Moreton the plaintiff below, upon the following case. ■</p> <p>“ Walter Moreton the plaintiff is a merchant residing in “ the city of Neto York, and a citizen of the United States, and Thomas Topham, the defendant in the foreign attach- “ ment, is a subject of the King of Great Britain residing “ in England.</p> <p>“ The defendant Thomas Topham, through the plaintiff’s “ agent in Liverpool, transmitted to the plaintiff a consider- “ able quantity of goods to be sold on commission, and re- “ ceived from the agent an advance on account of them. “ The goods were sold in this country, an account sales “was rendered on the 20th July 1807, and the nett pro- “ ceeds of sales were less than the sum advanced in Liver“pool. This attachment issued for the balance on the 5th “December 1807.</p> <p>“ On the 22d September 1807, a commission of bankrupt, “ from the lord chancellor of England., issued against the de- “ fendant in the attachment, on the 9th October in the same “ year a provisional assignment was executed of all his es- “ tate real and personal, and on the 29th of the same month ‘‘.the final assignment was executed.</p> <p>“ Goods of Thomas Topham are admitted in the hands “ of Richard Milne the garnishee, which were the property “ of the defendant before any act of bankruptcy committed “ by him, and it is also admitted that their amount equals “ the sum found in the inquisition.</p> <p>“ The question submitted to the Court is, whether the “goods in the hands of the garnishee are liable to this “ attachment, notwithstanding the bankruptcy of the de- “ fendant?</p> <p>“ If the Court shall be of opinion that they are so liable, “ judgment to be entered for the plaintiff. But if the Court “ shall be of opinion that they are not so liable, then judgM ment to be entered for the defendant; it being agreed, that " “ for the purposes of a writ of error, either party shall be at “ liberty to- consider the judgment of the Court which shall “ be rendered hereupon, as though it were rendered upon u the finding of a special verdict.”</p> <p>Arguments for the plaintiff in error. The attachment must be defeated for two reasons, 1. Because TopharPs debt having been contracted in England., with reference to the laws of England.it was discharged by his certificate (a). 2. Because by the assignment of the commissioners, Topham’s effects in the hands of Milne, were equitably transferred to the assignees.</p> <p>1. The debt was contracted in England, because the money was there advanced to the bankrupt, the goods were furnished there, and there the implied assumpsit originated, that in case the money advanced should exceed the nett proceeds of the goods, Topham would pay the difference. The law of England was therefore in the view of the parties. The promise was to be performed there. Robinson v. Bland (b), Champant v. Ranelagh (c). This being the case, by a variety of decisions a discharge under the law of that country, discharges the debt. Burrows v. Jemino (d), Green v. Sarmiento (e), Smith v. Smith (f), Jiiin v. Keefe (g), Smith v. ■Buchanan (h), Pedder v. M‘Master (i). At all events Top-ham could not have been held to bail by Moreton, and therefore his property could not be attached.</p> <p>2. The assignment of the commissioners passed Topham’s interest in the debt due to him by Milne.</p> <p>Any appropriation or transfer of a fund, though it be merely equitable, will prevent a subsequent attachment. In • Fitzgerald v. Caldwell, formerly decided in this Court, a letter by a creditor to his debtor, appropriating the debt to a third person, was held to be a sufficient transfer. In Sharpless, v. Welsh (a) the same. Strictly there can be no legal assignment of a chose in action. All acts which devest the creditor’s interest are therefore upon a. footing; and any thing which deprives him of his beneficial title to the debt, presents his creditor from appropriating it to himself by attachment.</p> <p>An assignment by commissioners of bankrupt is equivalent to a voluntary assignment. Debts due to the bankrupt have in contemplation of law no locality; they attend his person, are subject to the same law, are transferred by assignments in conformity with that law, follow its distribution in the case of an intestacy, Apon v. Pipón (b), and in the case of testamentary disposition will not pass if there is a want of such conformity. This Court in the case of Desesbats v. Berquier (c), has solemnly established this doctrine. It is a binding authority, and must carry the Court to all its legitimate consequences. The debt due to Topium, must then be considered as within the same English jurisdiction with himself, present at the same domicil, and governed by the same law. Why then shall not a statutory transfer pass it? It is not allowing extra-territorial effect to the statute, for the chattel on which it operates is within the territory of the law maker. It does not contravene the will of the bankrupt, because as a subject of the country,, he has assented to the law, and all proceedings under it; and he brings himself voluntarily within its provisions, as a trader. It is. not without consideration, butjupon the best, the payment of debts. It has accordingly been respected by all nations, as ■a sufficient transfer to prevent a subsequent attachment. By England as early the year 1760, in the case of a cessio bonorum in Holland. Solomons v. Ross (d), and Joliet v. Deponthieu (e). By Ireland in the case of an English assignment. Neal v. Cottingham (f). By France, in the case of a. similar assignment. Parish v. De Gramer (g), and Terrasson’s case (h). And the principle, as well as this particular application of it, has been sanctioned in a great variety of cases; Hunter v. Potts (a), Sill v. Worswick (b), Smith v. Buchanan (c), Waring v. Knight (d); in Massachusetts, Gogé?winv. Jones (e), in New York, Burdv. Pierpont (f), Burdv. Caritat (g). Every day our own courts give it their sanction. They allow foreign assignees to sue, at least in the bankrupt’s ' name for their use; and they would unquestionably disregard the bankrupt’s release made at a subsequent day. Upon what ground can this be, unless an equity passed by the commissioners’ assignment? The interest of all nations requires that this comity should be reciprocally shewn; and it would be with an ill grace disregarded here in reference to England, when reciprocity has at length come to be the only measure of the reject we shew to discharges of the .person obtained under foreign laws. Boggs v. Teackle (h). Policy should lead us to adopt the rule. It is in favour of an equal distribution among creditors, and against particular preferences.</p> <p>There is no case against us which ought to be regarded, because in none has the point been argued, or the authorities noticed. Burk v. Maclean (i), contains merely an opinion of Mr. Dulany. Wallace v. Patterson (k), cites no authorities, nor does the argument notice any principle. In Plarrison v. Sterry (l),the Chief Justice says merely that foreign statutes do not operate a legal transfer. If they did, they would operate by relation; but this does not say that they are riot equi- ■ valent to voluntary assignments, which pass an equity.</p> <p>Arguments for the defendant in error. There are two questions in the case. (1. Whether the English statutes of bankrupt have taken away the right of the defendant in error. 2. Whether they have rendered ineffectual the remedy he has chosen.</p> <p>They have not taken away his right. Supposing the contract to have been made in England, and with a view to performance there, this would not follow. The lex loci governs as to the form, the proof, and the construction of the contract, but not as to its discharge. The law that discharges a debt must have jurisdiction over the creditor. When the question relates to enforcing the contract, it must be decided by the forum where the suit is instituted; and if there is nothing in that law opposed to it, it is of no importance that a foreign law would not enforce it. Holman v. Johnson (a), Biggs v. Laurance (b), Piersoll v. White (c), Moland v. Fitzjames (d), Buggies v. Keeler (e), Smith v.' Spinola, (f), 3 Dali. 369, 370. But the contract was made to be performed in the United States. It was there only that the deficiency or excess was to be ascertained, and where of consequence the defendant in error was to become a debtor or creditor. The law of this country must therefore govern.</p> <p>The remedy has not been rendered ineffectual. The -assignment by the British commissioners, in a controversy between them and a citizen of the United States, is entitled to no consideration. It transfers no right legal or equitable; and if any respect is shewn to it by the comity of this Court, it can only be .where the case is between the assignees and the bankrupt himself, or the subjects of England.</p> <p>The basis of the opposite argument is not solid. Though personal property has in general no locality, and although in' respect to the transfer of it by the proprietor, the law of his, domicil is in general respected, yet for the protection Of its ' own citizens, and to enforce the payment of debts due by foreigners, every nation attributes to it a locality, and mates it submit to the operation of local laws. The process by attachment is built upon no other principle; and to illustrate it by a more striking case, in the event of an intestacy abroad, every nation requires an administration where the chattels of the intestate actually are, and then distributes not according to the foreign law, but its own. What clearer proof can there be, that to protect a domestic creditor, the law attributes a locality to debts due to a foreigner.</p> <p>To give effect to the assignment is therefore to allow the statute an extra-territorial influence, in opposition to, universal practice, to the will of the bankrupt, to general convenience, and to justice.</p> <p>The bankrupt laws of England are penal in their nature, and are according to the opinions of learned men, and the decisions of courts, limited to their own territory. 2 Kaimes Eq. 361. Huberus in 3 Dal. 371. They do not, says Lord Mansfield in Cleves v. Mills (a), extend even to the colo¿ nies, but are considered there as voluntary conveyances by the bankrupt, and do not affect the rights of other creditors; voluntary, in the sense of being without consideration. Le Chevalier v. Lynch (b), was the case of a garnishee, who had paid money in the West Indies to a creditor resident there, under an attachment issued against the bankrupt’s effects subsequent to a commission in England, and upon coming to England he was sued by the assignee: but he was held not liable. In Mawdesly v. Parke, cited in 1 H. Black. 680, it was expressly held that an assignment by the commissioners did not transfer a debt due in Rhode Island. And it is most reasonable that it should be so, because a discharge in England, the beneficial part of the system, does, not relieve the bankrupt from his foreign debts, and therefore that part of the system which is onerous to him should not be enforced. Juin v. CPKeejf (c), Pedder v. M-Master (d), Smith v. Buchanan (e), Proctor v. Moor (f), Vanraugh v. Vanarsdale (g), Smith v. Smith (h). It would be most severe upon the bankrupt, to permit his assignees to take all his effects in the United States, and to leave him. exposed to his creditors there.</p> <p>The assignment by the commissioners is compulsory. The bankrupt takes no part in it. He does not even formally join them. All the proceedings are in invitum. It might as well be said that the robber suffers death voluntarily, because he voluntarily commits the crime, and assents to the law of his country.</p> <p>It is not upon a good consideration as to debts due abroad, because it does not discharge him from them. '</p> <p>The cases of Solomons v. Ross, and Joliet v. Deponthieu, were in chancery, and do not seem to have been argued. The vicinity of Holland to England, probably rendered it convenient for those countries to respect each others’ bankrupt laws; but convenience is the other way between Great Britain and the United States. Besides, the authority of those cases is entirely done away by Mawdesly v. Parke. The first' of them was decided upon a principle now universally given up, that the property .passess by relation ,to the act of bankruptcy.</p> <p>In the United States there ate four cases in point. 1 Kirby’s Reports 313, in Connecticut; M'Lane’s case (a), in Maryland; Wallace v. Patterson (b), in the same state; and Harrisons. Sterry (c),in the Supreme Court of the United' States. In the last case, after distributing the fund first to creditors who had attached in the United States, after the bankruptcy in England and before the assignment, it was afterwards divided equally between -American and British creditors without at all regarding the assignment.</p> <p>All the American authorities cited by the plaintiff in error, are well reconciled by our position, that as between the bankrupt and his assignees or foreign creditors, comity will give effect to the assignment, and no further.</p>

THIS action was bi-ought by I. F. Schwartz and A. 1. Schwartz who survived William M'-Fadon, on a policy of insurance for 20,000 dollars made the 19th January 180/, ' on the ship Margaret valued at 25,000 dollars, at and from Batavia to Baltimore, with the usual liberty of touching and trading for refreshments, warranted American property, proof to be made in Baltimore only, premium per cent.

THE defendant obtained a rule upon the plaintiff to shew cause why all proceedings in this action should not be stayed, and an exoneretur entered on the bail piece. , The rule was granted upon the following facts: The defendant was held to bail in this suit in March 1808.

<p>A discharge unfc,s. 110td!s-turb the lien of a</p> <p>t]lg ;nsiiven\°x'emain after his assignment and as before to proceedings by mortgagees and judgment creditors. If the defendant is in possession, with the permission of his assignees, it is not necessary to serve á scire facias post annum et diem upon his assignees.</p>

<p>CASE. “ James Dutton on the 26th of November 1812, v 1 ' “ duly made and published his testament and will; “ sprout the will;) and on the 29th of December duly made “ and-executed a codicil thereto. (Prout codicil.) He died “ on the day of January 1813, and on the 13 th of “ January 1813, the said will and codicil were duly proved. “ At the time of making the said will and codicil, the tes- “ tator was possessed of peinonal estate, and seized of real “ estate, but the personal estate was insufficient for the pay- “ ment of his debts, and of the legacies he bequeathed; and a at the time of his death, the personal estate continued to “be, and now is, insufficient for .-the payment of his debts “ and legacies. The question is, whether the real estate is “ chargeable with the legacies bequeathed to the plaintiff. “ If the Court shall be of opinion that it is, then judgment “ to be entered for the plaintiff generally: if not, then judg- - “ ment to be entered in his favour for such proportion of “ the legacies, as the personal estate is sufficient to pay.”</p> <p>The testator by his will and codicil gave to the plaintiff two legacies of one hundred pounds each. He gave pecuniary legacies to other persons, without naming any funds from which they should be paid; and particularly two hundred pounds to trustees, as. a fund to repair and rebuild the wall of Coates’s burial ground in the Northern Liberties. He also made a very special provision for erecting a tombstone over the remains of his parents, some others of his family and of himself, and directed his executors “ to “ out of his estate all the costs and charges” of procuring and erecting it. The concluding devise was as follows: “ As “ for and concerning all the rest, residue, and remainder of “ my estate real and personal, whatsoever and wheresoever, “ not herein otherwise disposed of, I do give, devise, and “ bequeath the same, and every part and parcel thereof, “ unto the corporation by the name of the Guardians of the “ Poor of the City of Philadelphia, the district of South- “ -wark, and township of the Northern Liberties,” in trust, &c. There was no particular devise of real estate, either in the will or codicil.</p>

TN this case a rule was granted upon the defendants, to shew cause why a mandamus should not issue, commanding them to pay the bill of Michael Freytag esquire a justice of the peace, for the costs of his attendance in sundry cases, in which he was a witness for the Commonwealth against persons indicted and tried in several courts.

THIS was a case stated for the opinion of the Court, in the following terms: Pete¡r Knight, late of the Northern Liberties of the city of Philadelphia merchant deceased, by his last will and testanient dated the 18th day of September 1798, gave and bequeathed to Thomas Cuthbert and Anthony Cuthbert the defendants above named, “ the dividends and income of “eight thousand dollars six percent, stock, debt of the a pjnited States in the funds of the United States, to them u the…

THE defendant in this cause was convicted at the last Oyer and Terminer for Dauphinr6i fornication and bastardy, and judgment was given. He afterwards applied to Judge Teates for his allocatur to a writ óf error, upon the ground that the jury had been drawn by the sheriff and one county commissioner, instead of at least two, in conformity with the act of assembly and the precept. His honour refused to allow the writ; and the same motion was now máde to this Court, by ■,

<p>„____ __ ERROR.</p> <p>THIS was an action of assumpsit in the Common Pleas of York county, brought to August Term 1807, by Mary Sealy the plaintiff below, to recover the amount of the personal estate of Henry Sealy her late husband, bequeathed to her by his will. The Harr contained also a count for J fc "money had and received. The defendant pleaded; 1. Non assumpsit; 2.. Payment; 3. That the plaintiff was his wife. ’</p> <p>TJpon the trial of the cause, the plaintiff’s counsel, in support of the first issue, offered in evidence the will of Henry , Seedy' dated the 21st of March 1798, and certified by the Register of York county to have been duly proved by the oaths of the subscribing, witnesses,- on the 12th of ... _ , ... . , 1798. lo this the defendant s counsel objected, and duced to the Court in support of their objection: 1. record of an appeal by Henry Hull and another, made on a the 25th of June 1799, to the Register’s Court of York county, from all acts and decrees of the Register relative to the will in question: 2. An order of the Register’s Court oh the 4th of December 1799, directing an issue of devisavit vel non in the Common Pleas of York: 3. The record of • trial, verdict, and judgment in favour of the will, in the j - —a - r , Circuit Court m May 1802: and 4. Ihe record oi an appeal from that judgment to the Supreme Court, and the final confirmation of the will in May 1810, more than two years . after this suit was commenced. The counsel for the then gave in evidence that on the 12th of April 1798, letters of administration with the will annexed pendente lite were granted to Boreas Fahnestock, who settled his account in the Orphan’s Court of York county on the 22dof September 1802, and obtained his discharge on paying over the balance of 4334/. 14s. 3-¡-d. remaining in his hands, part in cash and part in bonds and notes &c. to the defendant Hantz, who on,the 24th of September, obtained letters of administration de bonis non cum testamento annex o, and received the balance accordingly. The plaintiff’s counsel also gave in evideuce that Hantz was plaintiff in the feigned ifesue in the Circuit Court, and that on the 25th of May 18p5, after the appeal by the defendants in that suit to the Supreme Court, he treated the appeal as if it had been abandoned, and issued execution for the costs, and received them. From this, and the acceptance of the administration it was inferred that Hantz was estopped from alleging that the paper in question was not the will of Sealy, or that the appeal was subsisting when this suit was commenced.</p> <p>Upon the whole matter, the two assistant judges against the opinion of the President, admitted the will, and sealed a bill of exceptions.</p> <p>Upon the second issue of payment, there was no evidence.</p> <p>Upon the third, it was proved that a marriage took place between the plaintiff and defendant before a clergyman in the month of January 1799; that he and she had given receipts by the name of Jacob and Mary Hantz; that they cohabited as man and wife, had children, and had executed deeds for land, in which she was stiled his wife, and had acknowledged them as such. At the time of this marriage it was however perfectly clear, that the defendant had another wife living, from whom he had been separated according to his own notion effectually, but without any effect whatever in law. A legal divorce was afterwardsobtained, and Hantz and Mrs. Sealy having come to Mr. Watts their counsel on business, he advised them to celebrate a new marriage. Hantz then said, “ I take you (the plaintiff) for my ■tvife;” and the plaintiff being told that if she would say the same, it would be a complete marriage, she replied, “ to be sure he is my husband good enough.” Mr. Watts advised them to repeat the marriage in a solemn manner before a clergyman, and he thought they went out for that purpose; but it was never done.</p> <p>The matters objected by the defendant were; 1. -The marriage, which was said to be proved both by the ceremony before Mr. Watts, and by the cohabitation and acts of the parties. 2. That no express promise having been proved^ the action of assumpsit would not lie upon an implied pro- • mise, until after a settlement of the administrator’s account,, and an order of distribution by the Orphan’s Court. 3. That if a promise might be implied before, at all events it could not be until it was the defendant’s duty to pay, in other words until the will was established; of course the action " Was premature. 4. That the greater-part of the property . being in bonds and notes, the plaintiff could not recover the amount of these in an action for money had and received, because she had not proved their conversion into money. 5. That no refunding bond had been filed before the suit was brought.</p> <p>The President charged the jury; 1. That as to the cohabitation and acts of the parties, they did not amount to a marriage^ but were facts from which. a marriage might be inferred. They were circumstances on which to ground a presumption of marriage, and might be met by circumstances, shewing that they were founded on some fact unconnected with marriage. As for instance, if the cohabitation was merely the consequence of the marriage before the clergyman, which was clearly void-, and if the acknowledgments referred entirely to the fact of that marriage, then they could not be considered as referring to any other marriage, nor have any weight in proving the marriage contended for. These facts would entirely destroy the presumption of a legal marriage, that would otherwise, arise from the cohabitation and acknowleágments; and the jury were to decide upon them. As to the marriage before Mr. Watts, there was no doubt that marriage in Pennsylvania was so far a civil contract, as to be governed by the municipal laws of the state, viz. the statute and common law, without the intervention of any spiritual or ecclesiastical law, as in England. Thebe was no particular form of ceremony established by the law of Pennsylvania which was to govern in all cases: but marriage was a very important and solemn institution, and the manner in which it was to be contracted, ought to be suitable to the nature and importance of the engagement. It was not absolutely necessary to be done before a clergyman, or a magistrate; but it -ought to be entered into with consideration and deliberate assent, and ought to be done formally and solemnly. The Court did not think it necessary to lay down any rule as to what form and ceremonies might be requisite to form a marriage; but they were de-cidedly of opinion, that the facts which occurred before Mr. Watts did not constitute a legal marriage. 2. That. where assets were in the hands of an executor, the law would imply a promise before a settlement of accounts and an order of distribution. 3. That as to the effect of the will, it had already been decided by a majority of the Court, in receiving it as evidence. 4. That the jury should be satisfied that the amount claimed had been received by the defendant before , the commencement of the suit; but that the jury might presume this as well as any other fact from the evidence. Direct proof was not necessary. 5.,That the want of a refunding bond should have been objected on the return of process or in a plea in abatement, and that it was now too late.</p>

<p>The registry of births and deaths, kept by a religious society, is evibep°rovedatcommon law. A copy under the seal of the corporation, iS</p> <p>a deed, that certain land had become the property oil), th^grantor£amSt (though not con-elusive) that D had a fee simple in the land; and the deed further recites, that Dss estate had been, divested by an try'of the grantor for breach of con-claims’ under'S (but not under^ estopped from deby'having himself ofthe first estate.</p> <p>law*wVa^circuinstauecs win justify the presumption of a deed, and it is givo an opinion,t0 whether the facts the presumption?</p> <p>a custom in a partocniar place to en-a condition in a ?nrmannerdfff^ entfrom that auruiesof'thocom™rms o'f the deed, is inadmissible,</p> <p>It is no objeetion to a conveyance oí land in Pennsylvania, that the grantor was out of possession at the time»</p>

<p>in error.</p> <p>THIS was an amicable action on tbe case in the Common Pleas of Dauphin, by the administrators of Robert Harris the plaintiffs below, against the administrators of James Harris. In February 1812, by agreement of attornies in open court, all matters in variance between the parties in the cause were referred to three persons, or any two of them, ex parte on ten days notice. On the 29th January 1813, the referees made a report in favour of the plaintiffs, which was filed on the 2d February following, read, and judgment Nisi. On the (5th February the defendants filed exceptions, which the Court afterwards overruled, and the defendants took this writ of error. With the record came up the depositions of the referees, that the reference was admitted before them to be a reference at common law, and therefore they were not sworn.</p> <p>The case below, so far as it is material, was thus: James Harris the defendants’ intestate, died seized and possessed of real and personal estate, leaving a widow and eight children. Laird Harris the oldest son, died after him, and after April 1797, of full age, intestate and without issue, leaving a mother and seven brothers and sisters. The administrators of Robert Harris one of the brothers, claimed one seventh of two thirds of the estate of James Harris, upon the ground that all Laird Harris's proportion went to the surviving brothers and sisters as if his mother were dead; and the defendants resisted it upon the ground that this was a casus omissus in the intestate law. The referees reported in favour of the plaintiffs’ claim, and the only material exception related to this point of law.</p> <p>In this Court several errors were assigned, but only two pressed. 1. That the arbitration had taken place under the act of 21st March 1806, by the third section of which the plaintiffs were bound to serve a copy of the award upon the defendants within ten days after the expiration of the term at which the report had been, filed; and that this had not been done. 2. That the present case was not provided for by any act of assembly, and therefore of Laird Harris’s part of his father’s personal estate, his mother took a portion, or the whole.</p>

<p>A lease to a feme covert is good, unless her husband expressly dissents. If his sis-sent may be in-™';p the stipulations in the lease on the pai.t of the feme claiming under him are bound by the lease,</p>

IN ERROR. rI THIS was a writ of error to the Common Pleas of fl n 7 *0 6Tks COUnty• Court below, the action was an ejectment for about twenty acres of land in Tulpehocken and Bethel townships, Upon the trial of the cause, Kreitzer the defendant offered in evidence the record of a former trial and verdict in ejectment f°r the same land, and upon the same title, and between parties under whom the present plaintiff and defendant respectively claimed; having first shewn, that…

IN ERROR. THIS waá a writ of error to the Common Pleas of Dan-thin county. In that court it was an action of debt upon a bond given by Adam Shaller the intestate, to Christian Brand the tiff below, for 30/., dated in the year 1783, and payable on the lstihay 1793. The consideration of this bond and was n tract of land sold by Brand to Shaller, in June 1781, and conveyed in 1783.

IN ERROR. __ THE plaintiff in error was convicted of murder of the first degree, at a Court of Oyer and Terminer for York county in April 1813.

<p>mesneprofits? f°l the record of the judgmeotm ejectment is conctutíre d^ndantiras tile tíme Ue eject ment was brought, and also as to title during the whole time laid in the demise; but it is not eviiength^of time that the defendant was m</p> <p>to ejector, and to real defendant,Stm'judgK?ent;d and if the real into the common triaf, andappeals, the judgment is as him?as'iTtlmis-81 sue had heea corrected.</p>

AT May Term 1810 a rule was obtained upon the defendants to shew cause why a mandamus should not issue, commanding them to grant patents to- the relator, for several tracts of donation land claimed by him, in right of several soldiers of the continental army in the war of the revolution.

IN ERROR. T-^ proceedings before a landlord and tenant’s court, the X plaintiff in error obtained possession of certain premises, of which the defendant was tenant. These proceedings were reversed in the Common Pleas of Northumberland on the 19th of January last, and on the same day, this writ of error was sued out, security entered, and notice immediately given to the opposite party.

in ERROR. npijJIS was an action of ejectment in the Common Pleas I ~ . of Luzerne county, by the executory of Stewart against Lnslin, in which the jury found the following special verdict, “ The jury find and return the following special verdict: That on the 16th January 1800, Samuel Jameson, of the township of Newport, applied under the act of the 4th April 1799, entitled “ an act for offering compensation to the Penn- “ sylvania claimants of certain lands within the…

INEKkON, T1 was an ejectment commence.': ■ tu. .jwuhluv 'Ipm11805^, m the -** Common Pleas of Northumberland, ■ . .. - ' 1 I he defence of Drum being that he had an equitable es-in the premises, and that the conveyance from Glass to from Snyder to Simps.on was really in trust to secure a small debt due from Drum to the estate of Anthony Selin, the plaintiff, after giving notice to the defendant to produce the original which had been seen cancelled in his hands, offered m…

in error. THIS was an eiectment iii the Common Pleas of North-J umber land county, for 171 acres of land, which the iessors of the plaintiff claimed as the children of John Snyder deceased. ‘' Upon the trial below, the plaintiff provea title m John Snyder at the time of his decease, and there rested his raqf. * On behalf of the defendant, who was merely the tenant in possession, and claimed no title personally, the real dispute being between the lessors of the plaintiff, and…

<p>Notice to take depositions at the house of keepStn Foi-fc, on the 27th of the present month December, be-of ten A!CM°and seven P. M., though the notice has no date, does *°er’°Jrst name," and was served, only on one of three defendants gooifsoastoanthonze reading a deposition taken at five P.M. on hous^of ’Samuel Spangler; the no-served on the 2d there being1no^ 0?°the defendants attended at the on any hour of that day.</p> <p>A grantor with is* ago od wfuiess5 to support the u-tie against any one not claiming ander him or his heirs. Qn. Whether a.feme covert to support the tifromherTus-6 band, when her right of dower has cot been released.</p>